pro-bono essay competition, winner pro bono: what’s in it for law students? rather like the sentiment that atticus finch imparts on his young daughter; “you never really know a man until you’ve walked in his shoes,” a law student can never know what it is like to work for a client until they have done so. before they have interviewed a client, taken legal jargon and created understandable prose from it and before they have appreciated that a client’s expectations and the realistic remit of the law can often be polar opposites they cannot be fully prepared to enter the world of legal employment. the benefits of pro bono work to law students go far beyond the metaphorical moral pat on the back that is received by helping a client who may not otherwise be able to afford legal representation or advice which due to cuts in legal aid has become more prevalent in certain facets of the law. pro bono for a law student gives them the opportunity to understand what motivates a client and to manage their expectations for the outcome of their case as well as the more obvious experience of case management and professional conduct. academics have long discussed the ramifications of graduates that are technically sound in knowledge of the law itself and the procedural steps that accompany statute, but could not begin to understand the effects on a client of the application of said statute. for example, you may understand that an application can be made under section 33 of the family law act 1996 for an occupation order but until you have met the client who happens to be a victim of domestic violence, who fears for the safety of her children and understood how this application will affect this whole families life you cannot truly believe yourself to be educated in that area of law. speaking as a product of northumbria university’s exempting law degree and having worked in their prestigious student law office the benefits of pro bono are benefits that i have experienced personally. my resounding support for pro bono legal work therefore comes from experience. the prospect of meeting a live client for the first time does not fill me with dread as i postulate it may for some green-fingered trainees and i feel confident that i would be able to reassure a client who may be trusting me with what is ultimately a personal aspect of their life. for example, the creation of a will may be a frequent everyday task for a trainee, but for the client, that will is a document that will ultimately affect the lives of their most loved ones. the trainee will lose no sleep if ‘mrs smith’ decides to leave the sum of her assets to battersea dog’s home, but her spouse and five children will be vastly affected by this decision. the inclusion of pro bono client work in a degree ensures that legal graduates have some understanding of the personal effects of legal decisions. claire eastwood pro bono essay competition – highly commended pro bono – what’s in it for students? the ideals of a student law office give students the fundamental opportunity to experience the expectations of a prospective lawyer, whilst concurrently providing legal advice “for the public good.”[footnoteref:1] as with anything done on a voluntary basis, it can be somewhat uncertain as to what benefits accrue to the volunteer, but alternative opportunities (i.e. a paralegal role within a reputable firm) can be equally uncertain, the reason being that “unqualified advisors require supervision.”[footnoteref:2] as such resources are scarce and the vast majority of aspiring lawyers are potentially left unaccounted for. according to lawworks[footnoteref:3], 70% of law schools in the uk now run student law clinics, a practical concept that accommodates the “vast quantity of forthcoming lawyers that are limited in access to hands-on experience within the field.[footnoteref:4]” [1: john cary, the power of pro bono (metropolis books 2010).] [2: 'pro bono and law students: what's in it for me?' (lawcareers.net, 2016) <http://www.lawcareers.net/information/features/02112015-pro-bono-and-law-students-whats-in-it-for-me> accessed 8 june 2016.] [3: rebecca parker, 'the lawworks law school pro bono and clinics report 2014' (lexisnexis 2016).] [4: 'legal aid: the consequences of laspo and the implications of the latest proposed cuts' (lawcareers.net, 2016) <http://www.lawcareers.net/information/features/09122014-legal-aid-the-consequences-of-laspo-and-the-implications-of-the-latest> accessed 8 june 2016.] the advantageous nature of pro bono to students is recognised internationally; in georgetown (u.s), students of law are expected to perform 50 hours of pro bono work on a compulsory basis[footnoteref:5]. whilst the priority is to provide free legal service to those in poor socio-economic demographics, institutional academics stress that trainee lawyers cannot fully appreciate the prospects of a lawyer in its absence. [5: 'new york bar pro bono admission requirement — georgetown law' (law.georgetown.edu, 2016) <https://www.law.georgetown.edu/careers/opics/pro-bono/nybar-probono.cfm> accessed 8 june 2016.] law students from the university of manchester have emphasised that pro bono, “ offers students the opportunity to gain practical legal experience, foster links to legal professionals, firms and advice agencies, and develop legal skills that aren’t taught in the classroom,”[footnoteref:6] an attitude that incorporates the most pertinent benefits to the law student. by gaining invaluable experience of real client contact, taking a hands-on approach with legal skills (i.e. drafting), and developing professional contacts, the student immediately makes themselves more attractive to the potential of a training contract or professional opportunity, thus increasing the likelihood of a successful career. [6: rachel shepard, 'pro bono work | prospects.ac.uk' (prospects.ac.uk, 2016) <https://www.prospects.ac.uk/postgraduate-study/law-qualifications/pro-bono-work> accessed 8 june 2016.] it is imperative to understand that the benefits of pro bono are not limited to professional applications; legal involvement within the community allows one to make meaningful contributions to those in need, and in doing so allows the student to appreciate the “vital role the law plays.” [footnoteref:7] legal service has been denoted as being “unaffordable and out of reach.” the common view held is that “one of the most perplexing facts about our perplexing legal market is its failure to provide affordable services for just about anyone but the rich and corporations.”7 thus, by providing legal aid to those who lack financial stability, the student is able to experience “intrinsic morale”2 and self-worth, something that all lawyers must be familiar with, and something that extends beyond the walls of the classroom. [7: michael zuckerman, 'is there such a thing as an affordable lawyer?' (the atlantic, 2014) <http://www.theatlantic.com/business/archive/2014/05/is-there-such-a-thing-as-an-affordable-lawyer/371746/> accessed 8 june 2016.] whist it is apparent that pro bono could not exist without a public demand for legal services; it is perhaps as equally apparent that an adequate and sustainable legal service could not exist without the concept of pro bono. so when considering the benefits to a student, one can assume that the student is playing a fundamental role in accommodating the “perplexing legal market.”7 ellis taylor 166 editorial balancing optimism and criticality in a time of change elaine hall northumbria university, uk elaine.hall@northumbria.ac.uk it seems only moments ago that i was writing an editorial and – oh yes! – because of the special issue on problematising assessment, it was in fact only last month. time is a slippery entity, particularly as we in higher education experience more (and more frequent) change alongside significant increases in the demands placed on us. a recent blogpost by mark carrigan1 highlights the multiple agendas that academics all face: students’ learning needs, administration, obtaining research grants and of course ‘publish or perish’. on top of all that, readers of the ijcle engage in clinic, a time-consuming, resource intensive activity, often relegated to the edges of the ‘core academic workload’. what on earth are we thinking? moreover, if it is so hard, why are so many new clinics emerging? in this issue we have papers that look at clinical developments with a degree of balance – recognising the advantages and positives of clinical work while weighing the costs and complexities. margaret castle’s paper provides a fascinating insight into a partnership: detailing the pragmatic steps taken to establish the working relationship and reflecting critically on the difficulties of finding a common language 1 http://blogs.lse.ac.uk/impactofsocialsciences/2015/04/07/life-in-the-accelerated-academy-carrigan/ ( ijcle vol 23 no 2 ) ( 1 ) and structure for teaching and learning. moreover, she steps back from the process as a whole to engage with the promises of eternal partnerships for law school clinics and assesses whether the hoped-for benefits of time and cost are realised and then, in a final reflexive turn considers whether these benefits were the only or the most important outcomes. it is always important for us to shift perspective and consider our place in the wider context, so while i agree with mark carrigan that these are challenging times for academics in the uk, i also recognise that this is nested within very challenging times for people outside the still relatively protected public sector. of course, this is the all-important ‘why’ for many clinicians across the world, providing a service for the public good and developing our students into ‘public good’ professionals2. in countries experiencing significant change and development, the role of clinic is yet to be defined: exploring this, ai nhan ho brings us the historical perspective as well as a detailed analysis of the potential for clinic in vietnam. recent developments in asia are further explored in victoria murray’s review of the new book clinical legal education in asia accessing justice for the underprivileged, edited by shuvro sarker. here again the balance has to be struck between celebrating new developments and assessing the barriers and threats to sustainability in clinic. as victoria stresses, colleagues from areas where clinic is 2 linda east, rebecca stokes & melanie walker (2014) universities, the public good and professional education in the uk, studies in higher education, 39:9, 1617-1633, doi:10.1080/03075079.2013.801421 longer established but perhaps threatened by austerity could learn from the models of collaboration detailed here. finally, we mark the passing of a vital figure in the history of clinic in the uk, professor phil kenny, former dean of the law school at northumbria university. as jonny hall’s appreciation reveals, you may not know about him but you will have encountered the fruits of his work. --------please let me know of upcoming events in the cle world for our july 2016 edition. here is the inevitable reminder about the ijcle conference with the association for canadian clinical legal education (accle) conference will be hosted by the university of toronto from 10-12 july. the conference, entitled the risks and rewards of clinic encourages participants to reflect on the balance between risk and reward for all the stakeholders in clinic. we have a fantastic range of papers, seminars and symposia and i’m delighted to announce that we have managed to secure sarah buhler and adrian evans as keynote speakers. this will be followed by the international legal ethics conference vii (ilec vii), which fordham law school will host in new york city on july 14-16, 2016 focusing on legal education, ethics, technology, regulation, globalization and rule of law (www.law.fordham.edu/ilec2016). you can submit abstracts until 1st april 2016, so don’t miss out! foreword welcome to the winter edition of the journal for 2005. this edition of the journal this edition brings together three of the papers originally delivered at the summer 2005 joint conference between this journal and the australian clinical legal education association, held in melbourne in july. the first paper, from peter joy from washington university school of law in st. louis looks at issues of external interference with clinical programmes, picking up on a series of attacks on the work undertaken by law clinics in the united states by those interested in restricting the scope of the work that such clinics can undertake. it is an article of relevance to us all, reminding us not only of the value of what we can do in our clinics, but also our vulnerability in different ways, to different forms of institutional pressure which may be brought to bear. i challenge any reader to put himself or herself into the position of any one of the clinicians threatened by organisations, professional bodies and political groupings, and not to feel a sense of deep concern. in such an environment, is there a danger that there will be an insidious “chilling effect” from such challenges, reining back the scope of clinical teaching. what is also implicit in peter’s article is the way in which clinics can engage the commitment and enthusiasm of clinical students by recognising their particular passion for justice – and often an enthusiasm for justice in causes that may be less than popular with existing political and business interests – such as environmental challenges. here there is common ground between peter’s article, and the article from liz curran, judith dickson and mary anne noone from la trobe university in australia. in their article they too look at the issues that arise from the particular societal responsibilities inherent in being a legal professional, and ask how we can most usefully structure our clinical programmes to maximise the benefits from the ethical and moral issues (in their broadest sense) that arise from almost every case that the students will encounter. valuably, they identify the particular responsibility of the clinical teacher in both managing the learning experience but also in acting as a role model. the final article broadens this theme yet further, by identifying a far wider issue for us as clinicians and for our students – what is it that we are teaching? is it purely effective lawyering skills – or even ethical and socially conscious lawyering skills – to future professionals? do we have a much greater opportunity to recognise the importance of personal fulfilment as a necessary component in any career? the pursuit of happiness is not something that is normally associated with legal careers, and colin james, from the university of newcastle, australia, puts forward an enormously interesting article, challenging us to recognise that through our clinical learning and teaching we may be able to open up for our students (and indeed ourselves) a much more positive approach to self-development and self-fulfilment than we find through our more narrow professional concerns. the summer 2006 conference the summer 2006 ijcle conference returns to london – and even at this early stage it promises foreword 81 to build on the success of the earlier years, with papers from almost every major jurisdiction, focusing on the broad theme of emancipation through learning. full details of the conference can be found at: http://law.unn.ac.uk/ijcle. in view of the level of interest from delegates, the conference has been expanded to run over two full days (12th and 13th july 2006), but we have managed to keep the cost of attending unchanged from previous years. the journal conference will immediately be followed by the one day conference of cleo, the uk clinical legal education organisation. this will be a very practically focussed conference, looking at the particular practical issues inherent in setting up and sustaining clinical programmes, and i am delighted that we have been able to organise matters so that the delegates attending the ijcle will have free registration so as to enable them to attend the cleo conference on the following day to contribute their own experiences from their own programmes. as ever, i hope that many readers of the journal will be able to attend the conference – and i look forward to seeing you there. student contributions and the journal can i take this opportunity to remind readers that the journal has three sections. the first section of the journal is fully refereed, with two independent specialist referees reviewing every submission. it has been designed to fit with the highest standards of academic peer review. i am always happy to receive unsolicited articles, but please make clear that you intend your article for publication in this section. the second section of the journal is the clinical practice section. this is intended to be a less formal section and to provide a forum for more descriptive pieces, which are often of huge value in setting out the details of particular clinical initiatives or projects. i am always eager for material for this section since i know from feedback that readers often find it very valuable to learn more about particular ideas from other clinical programmes. the third section of the journal is dedicated to student submissions – preferably relatively short pieces, but focusing on any aspect of their clinical experience – whether a particular case, or a particular learning experience, or indeed a wider consideration of issues such as clinical organisation or assessment. this is probably the most underutilised section of the journal and i think this is a shame since it has the scope to give a voice to the people for whom we run our clinics, and whose commitment and enthusiasm is an essential pre-requisite for any successful clinical programme: again, i would welcome submissions for this section. philip plowden editor 82 journal of clinical legal education december 2005 student contributions exchanging places: experiences of the first irwin mitchell international clinical scholar martin wilson1 what do most people think of a law degree – plentiful amounts of hard work, endless reading, an expensive legal practice course or bar vocational course followed by an extremely competitive application process to secure a job in the graduate’s respective field of work? what if students were given the opportunity to work in another jurisdiction, such as australia, for one month in a student-run law office during the summer, with £1000 to get them on their way? ‘sounds good’, i thought. ‘so what do i have to do to get the chance’? and then the one catch is divulged – the student must complete a compulsory piece of coursework and achieve one of the top 10 marks in their year. (the writer expects a few raised eyebrows at this stage!) last summer, northumbria university in partnership with irwin mitchell2 and monash university, in melbourne australia, offered one year 33 northumbria student a pro bono scholarship to work in the springvale monash legal service (smls) for one month. irwin 66 journal of clinical legal education august 2005 1 martin wilson graduated from the northumbria university exempting law degree in july 2005 with first class honours. the previous summer he had been the first irwin mitchell international clinical scholar, undertaking a month’s experience at the springvale legal service at monash university in melbourne. 2 irwin mitchell are a leading national law firm in the united kingdom, with a long-standing commitment to the support of pro bono work. 3 the northumbria exempting law degree is a four year undergraduate programme. the compulsory one year clinical module (the student law office) is in the final (fourth) year. the im scholar therefore has the opportunity to undertake a month’s clinical workexperience at monash before starting their clinical work in the northumbria clinic. mitchell kindly sponsored this scholarship and provided £1000 to the lucky student. to get the chance of participating in this pro bono scholarship, the chosen student had to complete a compulsory piece of legal research coursework and attain one of the top ten marks in the year. the top students were then invited for interview before a panel of three comprising two northumbria student law office staff and one partner from irwin mitchell, whose selection criteria proved to be which student demonstrated a commitment to pro bono work in the student law office. technically, when i was selected for the scholarship, i should not have been anxious at all. i had spent a great deal of my undergraduate studies in preparation for working in northumbria university’s pro bono student law office and besides, australia’s legal system is a common law system partly based upon our system, what could be so different? but i was about to travel to the other side of the world alone and work in a completely different jurisdiction where i knew nobody. the experience however proved to be very different to my anxieties. working in the springvale monash legal service was unique in terms of the diversity of experience i managed to encounter and the skills i acquired regarding working in a law office, client care and giving advice to live clients. each day provided a different experience to any other. for two days of the week, i worked in the springvale monash legal service in a client drop in session, in which four hours student time was dedicated to meeting members of the community on a one to one basis. the legal problems that students were confronted with proved to be more extensive than those that a busy high street law firm would be presented with daily. these ranged from fencing disputes, matrimonial matters, child residency issues, minor criminal offences, employment matters, through to a request to complete a change of address form due to language difficulties. springvale monash legal service, in terms of the diversity of legal and non-legal matters presented on a daily basis had similarities with a citizens advice bureau in britain. moreover, a significant proportion of clients required the assistance of a telephone interpreter due to language difficulties, which posed its own interesting problems when interviewing and advising a client. during another day in the working week, i had the opportunity to work at the family law courts in a suburb in melbourne through another monash university pro bono programme aptly named the family law assistance programme (flap). students and qualified solicitors provided a mainly advisory service to any family court attendees who required it and this could occasionally extend to representation if circumstances so required. through this programme, students not only had to deliver immediate advice on a quick turnover basis but also had the opportunity to observe the procedural workings of the family courts. during the fourth day of the weekly programme, i was sent to participate in monash’s intervention order support scheme (ioss) at the criminal law courts in another suburb in melbourne. through this excellent programme students and qualified solicitors manned a drop in session for unrepresented applicants who often found the entire experience of applying for an intervention order extremely distressing and traumatic. it was through this scheme that i gained the greatest amount of personal accomplishment specifically when i sat with an applicant in court providing emotional support for her in the traumatic experience of meeting the respondent in open court. the final day of the week saw me engage with other students in various lectures and seminars regarding their pro bono course of studies. 67 exchanging places: experiences of the first irwin mitchell international clinical scholar 68 journal of clinical legal education august 2005 overall, the monash pro bono programme, encompassing smls, flap, ioss and other schemes, proves to be of significant value to both the local community and students who participate in it. irrespective of the warmth and friendliness of the staff and students at monash, the programme of events that i experienced during the scholarship were excellent in terms of the professionalism of those involved, the sheer diversity of experience one can take from it and the benefit to all who came into contact with it. however, to make a like-for-like comparison between northumbria university’s pro bono programme and that at monash university would ignore the fact that the two programmes seem to be aimed at achieving different objectives and are situated in two wholly different legal climates. on the one hand springvale monash legal service is situated in a suburb in melbourne and is aimed at providing a high turnover of advice to members of the local community, with varying degrees of language difficulties, and is also intended to take on those more in-depth cases requiring more detailed levels of research and student input. there are numerous similar university-run schemes around australia, such as those run by neighbouring melbourne university. furthermore, victoria legal aid (the australian state legal aid provider) sees work such as that undertaken by victorian student-run law offices as strategic in delivering legal services to the general public and consequently appear to be much more involved in the funding of certain aspects of the schemes than occurs at northumbria’s student law office. the students at monash elect to work in the pro bono law office and spend a period of 3 months in doing so, which differs further from its english counterpart. students also encounter an exceptionally varied range of legal problems spanning numerous areas of law. in comparison, northumbria university’s student law office is situated on campus in the city centre and seeks to serve a very different legal need. drop-in ‘advice on demand’ style centres already exist in england and wales, through organisations such as the citizens advice bureau, and therefore the student law office has not been set up to provide such a service. another marked difference between the two law pro bono programmes is that the northumbria model is unique in england and wales, in terms of the depth of the programme. australia already has caught onto the idea of student run law offices but england and wales are yet to follow suit. for students studying on the exempting law degree at northumbria the student law office is a compulsory and extremely important part of their final year. cases can be taken on and sometimes followed through to fruition due to the greater time available over the nine-month span of the academic year. additionally, students are placed into firms of students with one supervisor that specialises in a particular area of law and they subsequently focus on one area of law rather than experiencing the wide-ranging areas that the smls students will encounter. this provides a distinctly different educational experience to that gained at monash and that is the thrust of the writer’s conclusion. monash and northumbria university’s pro bono programmes are different; they both intend to serve different legal and educational needs. the monash model is typically australian in the way that it has a student atmosphere about the law office, but that it still retains its professional outlook. upon entering the office one can hear the chorus of ‘g’day mate’ as the customary welcome, along with discussions of where some students intend to go surfing later. whereas the northumbria office has a typically english feel to it – a more self-consciously professional outlook coupled with a desire to sound professional and look professional in every task. and it is these closing points that ensured that my experience was so interesting; to be able to see, hear and experience the differences between two student run law offices at opposite ends of the world! clinical practice jusshjelpa i nord norge – a legal advice clinic in northern norway lancelot robson* and christian hanssen** geographical area the area covered by the clinic must be one of the largest and most remote in the world. it covers the whole of northern norway from bodo in the south to kirkenes near the russian border, and includes the “counties” of nordland, troms and finnmark. all of it lies within the arctic circle, which brings special challenges from the climate and thinly spread population. the permanent base is in tromso, in offices behind the port loaned from tromso university. from there student volunteers travel to visit most communes in the area, including norwegian lapland. volunteers attempt to visit clients in each major commune at least twice a year, (cases came from 78 communes in 2003), either upon request, or by advertising a clinic session in the local commune building. sessions in 28 major communes outside tromso were held in 2003. the clinic is one of five similar clinics covering the whole of norway, all founded upon operational and management principles pioneered by law students at oslo university in the early 1970s. the oslo jussbuss (literally the “law bus”) has passed into norwegian legal legend. mission jusshjelpa’s mission is to improve the availability of legal services in northern norway, and its social positioning requires it to offer free legal help to those in most need. 44 journal of clinical legal education august 2005 * director of clinical legal studies at kingston university. ** manager, jusshjelpa i nord norge, tromso university. caseload the operation is significant by most standards. in 2003 it dealt with a total of 2,147 cases. cases are divided into two categories which do not correspond conveniently to english classification. “muntlig” strictly translates as “oral”, but includes a certain amount of correspondence and contact with third parties. a “skriftlig” (or written) case is generally more substantial, where there is considerably more contact with third parties and the issues are complex. the service dealt with 99 “skriftlige” cases in 2003.1 overall, about 25% of cases involve contact with a third party. to use uk community legal service classifications, 75% of cases are at the level of “general help” and 25% are at the level of “general help with casework”. staffing the service has a full time manager and two administrative assistants, as well as 21 volunteers who provide the service. in english terms the clinic provides the type of service provided by both a citizens advice bureau and a law centre. due to the great distances involved, most clients initially contact the service by telephone. while personal contact is encouraged, it is estimated that only about 20% of clients are actually seen personally. in addition to the caseload, the more experienced volunteers or “downscalers” train their successors and carry out social research projects. volunteers join one of three groups, group 1 deals with social security, immigration and prisoners’ rights; group 2 deals with labour law, housing law, and debt; and group 3 deals with inheritance, and family law (including the law relating to children). the clinic can deal with cases falling outside the main groupings, such as commercial law, but it does not offer advice relating to criminal matters. organisational arrangements the clinic is organised as a charitable foundation, with final control vested in a general meeting of the organisation. an administrative board is responsible for policy, to which the office manager reports. the office manager (usually an ex-volunteer) is in charge of the day-to-day functioning of the service and the administration. all employees, volunteers, and members of the administrative board have a vote at the general meeting. the administrative board has three representatives from the student volunteers, one representative from the law faculty (known as the professional resource person), and an independent external representative invited by the organisation. it operates with the benefit of a special licence granted by the department of justice. finance the office manager is paid an average industrial wage, although s/he could expect to command a rather higher rate on the market. one administrator has elected to do civil instead of military service and thus is paid pocket money plus accommodation. the other is paid for by the norwegian department of work and social security, being employed on a scheme to help long term unemployed get back into work. volunteers are paid 40% of the national minimum wage, or jusshjelpa i nord norge – a legal advice clinic in northern norway 45 1 jusshjelpa i nord norge annual report 2003 (norwegian only) 20% if they are “downscalers”. in fact volunteers generally work much longer hours than the fractional posts they are paid for; this is part of their contribution to the service. detailed records of hours worked are kept, which indicate that 37.6% of the work done by volunteers was given free in 2003. administrative board members receive a small payment for the extra work, equating to 50% of whatever they are paid for their volunteer work. the faculty resource person is not paid, and the organisation is currently considering how to remunerate the independent external representative. other services pay a professional rate to the external representative for the hours spent, but it may be possible to persuade a retired local personality to do it for a nominal sum. the faculty of law engages the manager, while the administrators and volunteers are engaged by the jusshjelpa organisation acting collectively. about 75% of the budget ultimately comes from the department of justice, although the office manager, administrators and volunteers are actually employed by the university of tromso. the remainder of the funding comes from the faculty of law, student welfare organisations, county municipalities, local communes and private organisations. one of the manager’s duties is to maintain and improve the funding stream, either in cash or kind. jusshjelpa nationally has much public goodwill which can be turned into donations. jusshjelpa has its own separate account in the university accounting system, from which the staff are paid. legal politics case working is the dominant activity, which informs the service’s other activities. in norway a required learning outcome for law graduates2 is to be able to participate in legal politics. jusshjelpa students do this by drafting public information leaflets to be used by the service, taking part in newspaper debates, conducting surveys and research projects. the political work is mainly done by downscalers. currently two survey projects are being run. one seeks to identify the differences in the effectiveness of social services in different parts of norway. the other survey hopes to establish the scale of people trafficking between russia and norway, which is a perceived problem in the area. the organisation consciously seeks a high profile. in a rather unscientific survey during his visit the writer noted that ordinary norwegians exhibited a high level of recognition and approval. academic issues surprisingly, academic recognition for volunteers has been slow in view of the fact that the system has been running since the mid 1970s, and in tromso since 1988. it is only recently that students have been able to have their service recognised as part of their degree programme. norwegian students must study for 5 (previously 6) years to obtain a master’s degree in law. at least 4 weeks of that period must normally be spent in a lawyer’s office doing extra mural studies. that period is now waived for jusshjelpa volunteers. additionally the experience can be used as a compulsory special subject counting for 15 (30 in u.k. terms) credits. additionally, from 2005 students will be able to gain 30 (norway) credits for their clinical work, and a further 15 credits can be gained from doing a jusshjelpa research project. thus a student will be able to gain 45 credits in total, (i.e. 75% of a year’s work plus exemption from the extra-mural studies period. 46 journal of clinical legal education august 2005 2 see for example tromso university faculty of law ects information package 2004/5 http://uit.no/getfile.php?siteid=4&pageid=396&fileid=56. student commitment volunteers are expected to spend a total of three semesters with jusshjelpa. during the first two semesters they do casework. in the final semester they become downscalers, when they train new recruits, hand over their personal files, and do the political and research work. normally 6–8 new students are taken on each semester. to be eligible students must have reached year 3 of their studies and show commitment to the work. competition for places is keen. accessibility public opening hours for the advice service are fairly limited, although the office runs during normal office hours. at the main office telephone calls and new clients are taken in a two hour period, two days per week. additionally, in co-operation with local law firms doing pro-bono work, the service offers two hours in the evening once per fortnight at a building in the centre of tromso. as mentioned previously the clinic also travels to other communes in the region, preadvertising its visits. analysis of case work as might be expected from a general legal advice service, the range of case work is wide. seventeen different categories were identified in the 2003 annual report. family law was the most frequent case type with 14.9% of cases. law relating to children accounted for a further 6.2%. inheritance and housing law accounted for 13% and 11.5% of cases respectively. money problems (7%) and employment law (7.3%) were also significant categories. supervision and insurance to u.k. lawyers the supervision and insurance schemes appear relaxed. day to day supervision of cases is carried out by the working group collectively, with assistance from the more experienced downscalers. the legal resource person from the faculty normally only deals with policy issues, rather than individual cases. there is no necessity for a professionally qualified person to be available during consultations. the organisation carries its own insurance policy against negligence claims. some questions for u.k. practitioners the tromso clinical experience raises a number of questions for u.k. clinical practitioners: 1. can law students fill unmet legal need which the community legal service system in the u.k. is failing to meet?3 consequently is it appropriate to publicly fund clinics and regard students as assets, rather than consider them as a mere expense to the public purse? 2. is it possible for the u.k. clinical movement to create templates for a national or regional information and advice system based on law schools and legal education? jusshjelpa i nord norge – a legal advice clinic in northern norway 47 3 see for example 2004 lsg 101/37 p.4 charities call for body to educate public on rights. 3. can clinical work make our students more active citizens, and better fulfill nationally agreed degree learning outcomes?4 4. does the present division between the academic and vocational stages of legal education inhibit the attainment of high quality legal outcomes? 5. is the “professionalisation” of voluntary work in the u.k. discouraging students from joining in?5 6. can the working methods and supervisory requirements of clinical work be relaxed far enough to allow the participation of all students who wish to do so? 7. should we be afraid of learning outcomes which explicitly encourage participation in legal politics? what are the advantages and disadvantages of such outcomes? in a later article the writers will review the norwegian system as a whole to see how far the tromso experience is typical, and also examine norwegian perspectives on the questions raised above. 48 journal of clinical legal education august 2005 4 e.g law society/general council of the bar joint statement 2001, and qaa benchmark standards for law degrees 2000 5 e.g. the movement of the cab and other advice agencies away from the dissemination of information – see 2004 lsg 101/37 p.4, above. 257699b_ijcle_july_09 70 international journal of clinical legal education july 2009 reflective student practitioner – an example integrating clinical experience into the curriculum claire sparrow* abstract this project began in 2004 and involves llb students training (in year two) and then acting as citizens advice bureau (‘cab’) advisers for 120 hours (in year three). we have been able to incorporate this work into the existing course structure fully in third year (40 credit ‘reflective student practitioner’ unit) and partially in second year (as part of a 10 credit careers and research management unit), so that students undertake a substantial proportion of this work for credit. this has been possible by creating a parallel and alternative route to the existing 40 credit legal dissertation. assessment in third year is by way of a 3,000 word legal essay (based on a legal topic raised in client interviews); a 3,000 word reflective analysis of their experience, a journal and three letters that they have drafted in their cab work. this is produced through one-to-one supervision – in much the same way as one would supervise a dissertation. our aims in this project were to give students the opportunity to learn skills which would be of benefit in their professional lives, improve their employability and allow them to become more engaged in their local community. portsmouth cab was in need of more advisers and was interested in recruiting younger volunteers to establish a broader mix of advisers. the guarantee of 120 hours was a valuable commitment to them. i propose to offer an explanation of how we manage our relationship with portsmouth cab and how we share responsibilities between us (for example, in training and recruitment). i also seek to evaluate what has worked well and what has been problematic in working with cab. *university of portsmouth reflective student practitioner 71 introduction the university of portsmouth cab project was first piloted in 2004 by our now head of law school, caroline strevens. it sprang from a good contact within cab, eileen higham, who had recently been appointed as the service manager of the portsmouth cab. this cab was experiencing problems in recruiting and keeping a sufficiently large group of volunteers to staff the bureau. one of the chief reasons for this was that the most ready source of volunteers – retired people – were choosing to use their time differently. many more people are finding that they need to continue in paid employment – or that they simply want to travel and enjoy their leisure time in other ways. in 2004, portsmouth cab had a small core of advisers, some of whom were wishing to reduce their commitment to the bureau as they got older. law students at the university were obvious candidates to fill some of these vacancies. the benefits to them, in terms of seeing the law in context and developing skills valuable to lawyers is so obvious that it hardly needs to be explained at length. what may be of interest is how we made use of this opportunity and the practical challenges and decisions that we had to make in incorporating volunteering into the curriculum. what is the project? presently, students who wish to take the cab route will choose to do so at the beginning of their second year. the cab is bound by its own internal audit requirements and so every potential adviser must submit an application form and be interviewed to check suitability. this happens in the first few weeks of semester one in year two. cab staff come into the university and spend a few days interviewing the students and making decisions. once accepted as trainee advisers, students have to complete the same cab training process that all volunteer advisers must undertake. they complete a series of ‘training packs’ produced by cab and record their progress in records of learning (‘rls’). the training packs cover matters as diverse as ‘aims, policies and principles’ and ‘calculating benefits’. there are four rls in total before the trainee can become fully fledged as an adviser. the first two are completed using mostly paper training packs. the last two focus more on practice as an adviser and demonstrating competence in early interviews. each trainee must have a guidance tutor appointed by the bureau. in our case, two members of staff have undertaken training to become advisers themselves and have been appointed the guidance tutors to the students. they initially supervise the completion of the first two rls in weekly workshops held throughout the students’ second year. there are various training courses that students must also attend. the longest is four days and introduces students to the skills that they will need when advising. they undertake role plays and discuss their concerns with the leader of the course and fellow student trainees. when this course is completed, they are able to progress into the third rl and supervised interviews. from this point in the training, cab staff rather than university tutors, act as guidance tutors. once they have conducted three observed interviews, the cab guidance tutor will decide if the student is ready to start interviewing alone and to start the final rl. to complete this, the student must undertake a case in a certain number of different areas of advice, such as housing, debt, etc. once the fourth rl has been completed, then the student is a fully qualified cab generalist international journal of clinical legal education july 2009 72 adviser. we expect this stage to be reached either during the summer before they begin their third year or early on in the third year. once qualified, students are able to begin their 120 hours of advising in bureau, which they will need to complete by the end of their third year. why have we integrated this into the curriculum? as is apparent from the description of the process above, cab training is time consuming. we had first asked for volunteers from the llb courses to undertake the cab training alongside other trainee volunteers. this would be extra-curricular and not for credit. two volunteers, both mature students, decided to go ahead with this. however, cab training was scheduled throughout teaching weeks and often clashed with the students’ other classes. cab was unhappy with their attendance and the students struggled. following discussions with cab, one way forward was to find a way of fitting the training and volunteering into the curriculum so that the students gained space in their timetables and also received credit for what they were doing. it also had the benefit of allowing university resources to be set aside – not least staff time to train as advisers and to act as guidance tutors. how have we integrated it into the curriculum? a student taking the cab route proceeds as follows: second year careers and research management unit this unit is a second semester unit only. for most students, this unit covers careers guidance and also the preparation and submission of a research proposal for the legal project or legal dissertation in their final year. 90% of the unit mark attaches to the proposal. for students on the cab route, they do not undertake the research proposal. instead, they give a 15 minute group presentation reflecting on their experience of training to become a cab adviser. 90% of the unit mark then attaches to this presentation. workshops are timetabled throughout the year for the cab students, where they can come and complete the rls and have them signed off by the university guidance tutors. this means that they will still work harder than non-cab students who will only have lectures and seminars in this unit in semester two. cab students also need to get into the bureau so that they can observe interviews and other bureau procedures. they also attend the four day skills course at the beginning of semester two. if students find that they have made a wrong decision and do not wish to proceed with the cab route, then they are able to switch back to the non-cab route simply by rejoining those students who are preparing their research proposals. third year cab students taking this unit for credit will go on to take the reflective student practitioner unit in year three. this is an alternative to the 40 credit legal dissertation. 73 reflective student practitioner by the end of this year, students are required to have completed their 120 hours of advising in bureau. they have the flexibility to complete these hours over the summer before their third year if they live locally – or to work on it throughout third year. the bureau monitors and counts the hours that the student attends. some students have the opportunity to specialise further – whether in debt work or supporting the cab court desk at portsmouth county court. assessment in the reflective student practitioner unit as in placements, students keep a diary of what happened and what they thought about these events. they have to produce examples of documents drafted on behalf of clients which demonstrate their ‘lawyering skills’. however, we also wanted students to produce something lawrelated (not all advice areas in the cab are primarily based on law) so that it could be more effectively moderated by an external examiner. we also wanted a piece of work which demonstrated genuine depth of reflection. we decided on two 3,000 word essays which would between them attract 80% of the overall unit mark. the first piece is a 3,000 word essay which evaluates an area of law (chosen by the student) using the student’s experience within cab. for example, the student may have advised clients who came into the bureau with problems with bailiffs. the student would then identify that there was a problem with the law in this area and begin to research it and explore reform. this is much like a normal analytical law essay – the difference being that it is stimulated by the student’s experience and his or her awareness of how the law is affecting members of the local community. another benefit of this assessment artefact is that it allows students to engage in more traditional selfdirected legal research. students also identify a broader range of topics than one might see, for example, in the legal project or dissertation. in terms of reflection, while trainee advisers are encouraged to assess their skills and progress as they complete their training, this self assessment and structured reflection stops once they are qualified advisers. we therefore asked for a 3,000 word reflective critique of the student’s experience as part of the assessment in this unit. as teaching and assessing reflection is an area of interest to caroline strevens and myself, we set out to teach the students how to write reflectively. this involved workshops where we explained what we were looking for and also an introduction to the work of academics in the field such as donald schon, david kolb, georgina ledvinka and jenny moon. this year we were also able to show students excerpts from past reflective critiques to highlight good practice. what we wanted to achieve was something beyond the student identifying how he or she felt and what needed to be done to improve his or her performance as a cab adviser. the best pieces of reflective writing went through stages where they reflected on how they felt at the time of the event, how they felt after some time had passed and then finally on what this whole process told them about themselves as learners. we wanted them to identify how they improved their performance in bureau, but also to look at what they had learned that would be of benefit outside that context – such as greater confidence or independence of thought. the reflective critiques would also demonstrate some understanding of the academic theories about learning from experience and the value of reflection. other than workshops (of which there were about two per semester) students were assigned a supervisor (one of the members of staff who had previously acted as a guidance tutor in year two). in producing the two 3,000 word essays, students used these supervisors in the same way that international journal of clinical legal education july 2009 74 they would a dissertation supervisor – meeting regularly to discuss drafts and improvement of work. one of the most enjoyable aspects of teaching on this unit is the ability to talk to students in depth about their experiences and seeing them become more questioning and actively engaged with making sense of those experiences. student feedback on reflective writing there has been much positive feedback for the learning from experience units although it is clear that students do find reflective writing very difficult since it is so unlike any assessment task they have previously undertaken. they comment: the best part of the unit was: hands on experience, improving career prospects. reflective method of assessment has really helped me identify what i’ve learnt/ how i’ve improved. doing practical experience, i have gained an insight how the law works in practice. generally: this unit has probably been the most important, valuable unit i have undertaken at uni. it has helped me identify key areas of law i would like to work in and also, particularly, taught me how to cope in stressful situations. a great way to develop and acquire new skills through experience – for me it was a great opportunity to familiarise myself with community issues. the negative comments mostly concerned the amount of work involved and how it would have compared to the workload involved in taking the dissertation unit. it seems clear that while these students have had to work harder than traditional legal project or dissertation students, they have gained something far more. other fringe benefits we have benefited up to this year from inclusion in the millennium volunteers scheme being run by the government. this recognizes the achievement of volunteers under the age of 25 by awarding certificates for 100 and 200 hours of service. of perhaps more practical benefit for the cab, it also attracts some funding for each eligible volunteer. a recent welcome development has been confirmation that our student cab volunteers will also receive a certificate of advisory practice from the institute of paralegals. they will also receive a year’s membership of the institute, joining at associate level. this will allow them to use the letters a.inst.pa after their names and the professional designation ‘associate paralegal’. their hours spent doing cab work will count as qualifying employment, fast-tracking them for fellowship/certified paralegal status. both of these certificates are awarded in separate ceremonies on the day of graduation. challenges this project has worked so far because both sides gain benefits. the bureau has a regular supply of trained advisers all committed to 120 hours at least. they also have university guidance tutors 75 reflective student practitioner to take some of the weight of constant training of new volunteers from them. the university benefits from the opportunity to have students gaining such valuable experience in advice work and, not least, from the welcome publicity that this generates. continuing this successful relationship requires that both sides continue to benefit. we have reached the present stage through a few years of trial and adjustment. it has been essential to maintain a good working relationship with the staff who work in the bureau. they deal with the students when they are there and make decisions about their readiness to interview. keeping this good relationship has been possible in part because university staff teaching on the cab route have had to train as cab advisers themselves and attend the bureau. this makes good communication easier and helps us to respond to problems more quickly. one challenge has been the inflexibility of the cab training programme. it is designed to fit all volunteers, whatever their backgrounds. members of staff who were qualified solicitors and barristers were barely allowed to have any prior learning accredited to reduce the training and this added to the burden on staff when getting the project up and running. students likewise found the early stages of the training rather dull and repetitive – for example, covering the legal framework training pack. the volume of the training has made it difficult for students to fit in around other second year subjects. another major issue that we struggle with is getting the second year students sufficient time in the bureau. it is hard to find blocks of time clear in the timetables and the bureau can only cope with a small number coming in at a time. with restricted access to the bureau, this has held some students back in completing assessed interviews or simply observing other interviews. we have tried to rota this ourselves in past years, but next year we will experiment with having students sign themselves up to bureau sessions for a whole semester. student attendance at the bureau can be a problem in some cases, although the involvement of university tutors makes it easier to chase up attendance. another issue for cab is that the qualified students tend to disappear at holiday and exam times, so they sometimes lack consistency in their rotas. local students, however, do tend to come in where they can over the summer vacation. at least one local student has even continued her advising after completing her 120 hours in bureau. our lack of specialist knowledge on areas such as debt and benefits can prove a problem when we are training students. we address this by having short courses and, next year, specialist training from the bureau on benefits. one recent challenge for the portsmouth cab is that it has now become part of a clac (community legal advice centre). it has had to move premises and learn to work with a new clac partner (another charity which gives advice). when change like this happens, we at the university need to keep in close touch with cab to ensure that we can continue to work with them and that we are not forgotten among other pressing worries in bureau. some pleasant surprises we had anticipated that the established advisers, many of whom were retired, might have some issues with our students arriving in bureau. while some students have settled in better than others, international journal of clinical legal education july 2009 76 they report no real problems with the existing advisers. in fact, some of the less it-minded advisers have appreciated having our students on hand to help with databases and word-processing. we did have a concern about students failing to complete their 120 hours in time – however, to date, no student has failed to do this. one final pleasant surprise has been seeing some very shy and withdrawn students develop into much more confident individuals over the course of their time at cab. by the time they get to the end of their third year, you can actually see that most of these students are ready for the next step of their legal training. conclusion to anyone wishing to set up a similar project, or to work with the cab, good contact and communication with a forward-looking cab manager is essential. there must be clear benefits to the bureau (which will compensate for the extra administration they will have to do) and to the students. university staff also have to be prepared to get involved with the training and workings of the bureau – it is impossible to integrate into the curriculum otherwise. we have found, however, that the rewards for both teachers and students in this project have been significant, while the university has made a practical contribution to the portsmouth community. in te rn a tio n a l jo u rn a l o f c lin ica l le g a l e d u ca tio n ju ly 2 0 0 9 p a g e s 1 –7 6 pro bono essay competition – highly commended pro bono – what’s in it for students? with the introduction of tribunal fees, ever-increasing court costs, and dwindling public confidence in the legal system, pro bono work is more important than ever. whilst the case for the utility of pro bono for the aggrieved has been made extensively, this essay considers how the volunteers may benefit themselves in the process. to the careerist, it offers necessary work experience to compliment applications for training contracts and pupillages. with attrition rates for career progression being as grueling as ever (most notably in the case of the bar), pro bono work offers the aspiring lawyer a chance to apply their academics to real problems. in the current recruitment climate, work experience and a commitment to the legal profession has become a pre-requisite, not a bonus. fortunately, pro bono work offers both, and is a valuable asset to any pragmatic law student. though it’s easy to get lost in the intricacies of implied terms and the construction of contracts, practical law is often very different to academic law. therefore, for the enthusiast, exposure to real cases and the ability to assist and advise both collaboratively and autonomously is an excellent learning tool and will invariably help cement essential legal principles in the context of tangible problems. however, there is a strong enthusiasm for pro bono work amongst the qualified, and if the above were the predominant reasons for offering pro bono aid, there would be little appetite amongst today’s professionals. pro bono work to the existentialist is the raison d’être, and transcends the divide between law students and professionals. for those that live and love the law, pro bono does not burden the volunteer with having to work; it gifts them with getting to work. it allows the long hours spent in the library, the years of debt following extortionate professional qualification fees, and the mountain of extra-curricular obligations required to succeed as a lawyer to be mere afterthoughts for the student. it puts billing targets, requisitions and awkward clients in perspective for professionals. most candid individuals would surely agree that the inner monologue of insecurity and neuroses experienced on a daily basis is enough to make any unlucky listener deeply uncomfortable – professional and personal problems occupy a greater amount of our thoughts than anyone would care to admit. the most valuable reward of all to the aspiring (or qualified) lawyer is the validation and assurance that one’s skills can benefit society and improve the lives of those that have exhausted their own efforts. there is no better way to ensure your own peace of mind than to ensure another’s. therein is the affirmation that your endeavours are worthwhile, and your inner sartre can be silenced for a time. pro bono work is what the volunteer makes of it: a tool for career development, a means of broadening their legal education, or the process by which one can begin to practice as they one day aspire to – prior to even completing legal education. joel finnan 168 practice report 135 clinical legal education: human rights, and arts and crafts cafés jill marshall, department of law and criminology, royal holloway, university of law nicola antoniou,1 department of law and criminology, royal holloway, university of law. abstract this practice report provides an account of two outreach projects that enabled different community groups, members of staff at royal holloway, university of london, and students at royal holloway’s legal advice centre, to discuss human rights in an accessible and relatable way, which empowered the delegates, and encouraged open dialogue. at the first event, royal holloway and the afghanistan and central asian association collaborated to host an online being human café as part of the being human 2020: a festival of humanities programme organised and set up annually by the school of advanced study, university of london and funded through the arts and humanities research council and the british academy. the café “afghan women small spaces café: sewing pathways to human rights” took place via zoom. meeting over afghan 1 whilst the authors are not medical or clinical experts that specialise in dealing with people with autism, they have made every effort to use reliable information to discuss the matters raised in this report. the authors are grateful to mariam diaby, researcher, who contributed to this article and to all participants at the events described. practice report 136 tea and cake, participants from the public, generally from the afghan diaspora community and researchers used mixed participatory methods including artwork, sewing and conversation to explore what everyday habits and material objects tell us about ourselves and each other. working with these, and other culturally specific lived experiences, marshall linked her research, on human rights law’s purpose of ensuring universal dignity, equality and rights, to french writer georges perec. following this style of café, the authors created the autism legal rights café, in partnership with the sycamore trust u.k. at this second event, marshall’s research on everyday spaces was developed into a short talk about law, everyday spaces, objects and being human at a focused arts and crafts workshop for young women with autism. particularly during covid-19 lockdown, it was explored how and why our objects took on a new meaning. this talk included an analysis of species of spaces where perec traced what is truly daily, those everyday habits and material objects of which our lives consist, what goes without saying. perec claims, although these do not seem to pose any problems, we need to ask what they may tell us about what is important in life, what makes it worth living. 1. integrating members of the public with research-led events it is increasingly recognised that, within universities, there is a need to build partnerships with industry and non-academic stakeholders to support the development of new research collaborations, as well as to engage members of the community to share research-led activities. over the years, the relationship between practice report 137 research and teaching in higher education has expanded.2 the benefits that have been highlighted, include being able to teach from immediate research experience, and offering students a unique insight into the research interests that have an impact on the areas that they are studying.3 whilst some have argued that this alignment may have its own challenges, creating a hybrid by actively engaging students within the process is advantageous because their learning is relatable to real life.4 taking lessons from most clinical legal education activities, these research-based events can increase civic engagement, as well as enhance our students’ critical thinking and understanding of the research interests of academic staff who also teach them. importantly, through the projects that we have worked on at royal holloway, our students have also developed an insight into the various social justice issues that the community groups we work with continue to face.5 the events that are discussed in this report have similar components to street law programmes. as wallace states, “the three basic components of a successful street 2 mary malcolm, ‘a critical evaluation of recent progress in understanding the role of the researchteaching link in higher education’ (2014) 67 higher education 289. 3 maureen haaker and bethany morgan-breet, ‘developing research-led teaching: two cases of practical data reuse in the classroom’ [2017] sage open journals 1 <https://doi.org/10.1177/2158244017701800 >accessed 4 may 2022. 4 carla pfeffer and christabel rogalin, ‘three strategies for teaching research methods: a case study’ (2012) 40 teaching sociology 368. 5 jacqueline weinberg, ‘preparing students for 21st century practice: enhancing social justice teaching in clinical legal education’ (2021) 28[1] ijcle https://doi.org/10.19164/ijcle.v28i1.1127 accessed 4 may 2022. https://doi.org/10.1177%2f2158244017701800 https://doi.org/10.19164/ijcle.v28i1.1127 practice report 138 law program are practical content, interactive skills-based teaching strategies, and community involvement”.6 2. afghan women small spaces café 2020: sewing pathways to human rights as part of being human 2020: a festival of humanities programme, organised and set up annually by the school of advanced study, university of london and funded through the arts and humanities research council and the british academy, royal holloway, university of london, collaborated with the afghanistan and central asian association (acaa) to host a café event. student volunteers from royal holloway’s legal advice centre, together with staff, joined the ‘afghan women small spaces café: sewing pathways to human rights’. this event took place in acaa’s community hub and via zoom in november 2020. the acaa is a charity that provides support and advice for refugees and migrants in the afghan communities based in west and south-east london. acaa run a wide variety of events and projects, with the aim of supporting refugees and immigrants throughout the uk who feel isolated and are in need of advice and support.7 the acaa has worked in the uk for twenty years. during the recent upheaval in afghanistan, the organisation has played a pivotal role in welcoming and providing vital essential support and resources to afghans who had to urgently evacuate their country. 6 amy wallace, ‘classroom to cyberspace: preserving street law’s interactive and student-centered focus during distance learning’ (2020) 27[4] ijcle 83, 84 < https://doi.org/10.19164/ijcle.v27i4.1055 accessed 4 may 2022. 7 the afghanistan and central asian association https://acaa.org.uk/ accessed 4 may 2022. https://doi.org/10.19164/ijcle.v27i4.1055 https://acaa.org.uk/ practice report 139 at the café, marshall, through her research linking law to french writer georges perec’s work on small spaces and everyday life, explored how law can mean something positive and important by connecting it to our own lived experiences.8 the aim is to understand aspects of legal theory, such as what law is and its purpose, and human rights law, through exploring everyday objects and spaces. this is a different methodology to reading texts alone, the traditional method of legal study and analysis. it seeks to show how our experience of the world around us affects the topics we are studying and examining. particularly during covid-19 lockdown, it was explored how and why everyday objects took on a new meaning. our everyday habits, challenges, objects, and environments are rarely questioned. such ordinary things tend to be taken for granted due to bigger, more dramatic events taking centre stage in supposedly informing us about the world. however, the size of an event in our lives does not always determine its value to it. how something is determined to be valuable depends on where we look as well as our own unique perspective. a deeper inquiry into these ordinary matters that are often overlooked and form the very fabric of our lives and society may provide us with new insights into our communities and ourselves. 8 jill marshall, ‘law, everyday spaces and objects, and being human’ in c stychin (ed) law, humanities and the covid crisis (forthcoming university of london press 2022). georges perec species of spaces and other pieces (penguin classics, harmondsworth, 1999) especially species of spaces (1974), and l’infraordinaire (1989) containing numerous pieces including ‘approaches to what?’ first published in cause commune 1973. marshall also uses xavier de maistre a journey around my room (alma classics reprint 2017, first published in french in 1794). practice report 140 examining the habitual can raise awareness about our identity and social structures. marshall’s work on the place of the ordinary, everyday objects around us particularly focusing on perec’s work, and xavier de maistre’s a journey around my room written in confinement in the 1790s, connects these to law. marshall explains that the covid19 lockdown has been the catalyst. “this forced physical confinement on those of us previously free to move to different spaces and places. illness aside, to those complying with the legal regulations, the lockdown has restricted our ability to meet, associate and assemble, with others, including with family, friends, loved ones. we stayed in those spaces and surroundings in which we were placed at time of lockdown, for most, one’s own home. being alive and living well depends on legal, social and cultural contexts or environments where our individual personalities are formed and have potential to flourish. can a focus on the ‘infra-ordinary’ of the everyday, and our awareness of it, shed light on the deficiencies of the world in which we exist: a world which is shaped and regulated by law?”9 after marshall’s presentation on these themes, we created break out rooms on zoom, where afghan women, meeting over tea and cake, took part in mixed participatory methods, such as sewing, drawing and conversation. these creative forms of expression sought to encourage afghan diaspora women and our student volunteers at the legal advice centre to discuss or express everyday objects. participants chose their own object that had some meaning to them. the artistic expressions of those 9 marshall 2022 ibid. practice report 141 objects and small spaces was linked by marshall to the ‘small spaces’ in eleanor roosevelt’s analysis during the formation of the international human rights regime after the horrors of the holocaust and the end of the second world war in 1945.10 roosevelt argued that for human rights to have meaning they have to begin within each person and from our own particular experience and the way we treat those immediately around us. weinberg notes that social justice can take on different meanings.11 singo’s definition seems fitting here, namely that social justice must “attain a basic set of entitlements for all people, which at the very least must include human dignity, freedom, equality, and justice for all members of society”12 our student volunteers gained an insight into the challenges and struggles those members of our café have faced and continue to face. our students were also participants themselves as they chose their own identified spaces or everyday objects. participating students were able to connect this to our separate research project on the effects of covid-19 among the afghan diaspora community and in afghanistan in which they had played a vital role as research assistants.13 10 perec’s parents both died during the war. his mother’s remains were never recovered but she was reported to have been deported to auschwitz: see perec above note 8. eleanor roosevelt’s full quotation is available at https://unfoundation.org/ accessed 4 may 2022. 11 jacqueline weinberg, above note 5. 12 david singo, ‘clinical legal education and social justice—a perspective from the wits law clinic’ (2018) 2 stellenbosch law review 295. 13 nicola antoniou, jill marshall, alexander gilder and rabia nasimi (2020) ‘royal holloway, university of london and the afghanistan and central asian association: new partnerships and challenges during covid-19 in the clinical legal world’ (2020)27 [4] ijcle https://doi.org/10.19164/ijcle.v27i4.1058 accessed 4 may 2022. https://unfoundation.org/ https://doi.org/10.19164/ijcle.v27i4.1058 practice report 142 this interactive and research-led workshop, bringing academics, researchers, students and the community together provided a unique opportunity for our student volunteers to see how the law, and in particular human rights, can make a difference to the social justice issues that they had researched on afghanistan. for the remaining part of this piece, we will focus on the second event, the use of this method of exploring everyday objects for young women with autism and aspects of how autism affects young women. 3. royal holloway at sycamore trust’s romford autism hub: autism in young women inspired by the effect of the afghan small spaces café, the authors of this report successfully applied for internal funding to develop the research and organise a similar event, but this time working with a charity called the sycamore trust u.k. the sycamore trust is a charity dedicated to providing a variety of tailored services to support families, carers and individuals affected by autistic spectrum disorders. services offered by the organisation range from parent support groups, youth clubs to a girls’ project – a scheme designed exclusively for girls and young women with autism. in addition to these programmes, the organisation aims to raise awareness about autism.14 14 the sycamore trust http://www.sycamoretrust.org.uk/ accessed 4 may 2022. http://www.sycamoretrust.org.uk/ practice report 143 3.1. what is autism and how does it affect girls and young women? before discussing the event in more detail, the authors will first consider, what is autism and what are some of the potential challenges of its diagnosis, particularly in women? autism is a lifelong developmental disability, which affects how people communicate and interact with the world.15 as suggested in its diagnostic name ‘autistic spectrum disorder’ (asd), the condition is an umbrella term, which includes a range of diagnoses, such as asperger’s syndrome and pervasive development disorder. as research in the field continuously evolves, the law has refrained from providing a definition of asd.16 although it is recognised that the characteristics of asd can be different amongst all individuals,17 and has its own strengths, the following are three key characteristics that may be challenging to someone on the autistic spectrum: social communication (which can include verbal and non-verbal challenges), social interaction, and sensory challenges.18 such social communication characteristics have, however, founded some misconceptions, for example, that people with autism lack a sense of humour and/or creativity. autistic people may have an alternative sense of humour,19 and how 15 the national autistic society, https://www.autism.org.uk/advice-and-guidance/what-is-autism accessed 4 may 2022. 16 explanatory notes to the autism act 2009, commentary, section 1, para 11. 17 cathy pratt, rachel hopf, and kelsey larriba-quest, ‘characteristics of individuals with an autism spectrum disorder (asd)’ (2017) 21(17) the reporter < https://www.iidc.indiana.edu/irca/articles/characteristics-of-individuals-with-an-asd.html> accessed 4 may 2022. 18 national autistic society, above note 15. 19 shaun may, ‘autism and comedy: using theatre workshops to explore humour with adolescents on the spectrum’ (2017) 33 (3) ride 436. https://www.autism.org.uk/advice-and-guidance/what-is-autism https://www.iidc.indiana.edu/irca/articles/characteristics-of-individuals-with-an-asd.html practice report 144 autistic people see the world enables their creativity to be approached in various ways.20 a diagnosis is central in helping a person on the autistic spectrum as this will enable them and their families to benefit from appropriate support and services. asd is diagnosed by assessing an individual’s behaviour. this is done through diagnostic manuals, such as icd-1021 and dsm-5.22 as autism presents itself differently in all individuals, having an assessment that specifically examines their daily interactions is advantageous in gaining a full picture of the condition as opposed to adopting a single inflexible test. however, the prevalent misdiagnosis in girls and young women highlights that there may be issues in the diagnosis criteria itself. the most recent figures show that more men and boys are diagnosed compared to girls and women at a 3:1 ratio.23 there has been an extensive and ongoing discussion amongst academics and researchers about this gender diagnosis gap which has been 20 catherine best, shruti arora, fiona porter and martin doherty, ‘the relationship between subthreshold autistic traits, ambiguous figure perception and divergent thinking’ (2015) 45 journal of autism and developmental disorders 4064; tracy mcveigh, ‘people with autism and learning disabilities excel in creative thinking, study shows’ the observer (london, 22 august 2015) < https://www.theguardian.com/society/2015/aug/22/autism-creative-thinkingstudy#:~:text=people%20with%20autism%20and%20learning%20disabilities%20excel%20in%20creati ve%20thinking%2c%20study%20shows,this%20article%20is&text=a%20new%20study%20showing%20that,about%20people%20with%20lear ning%20disabilities> accessed 4 may 2022. 21 world health organization, ‘icd-10: international statistical classification of diseases and related health problems’ (tenth revision, 2nd edn, world health organisation 2004) < https://apps.who.int/iris/handle/10665/42980> accessed 4 may 2022 22 american psychiatric association, diagnostic and statistical manual of mental disorders (5th edn arlington va, american psychiatric association 2013). 23 national autistic society, ‘autistic women and girls’ https://www.autism.org.uk/advice-andguidance/what-is-autism/autistic-women-and-girls accessed 4 may 2022. https://www.theguardian.com/society/2015/aug/22/autism-creative-thinking-study#:%7e:text=people%20with%20autism%20and%20learning%20disabilities%20excel%20in%20creative%20thinking%2c%20study%20shows,-this%20article%20is&text=a%20new%20study%20showing%20that,about%20people%20with%20learning%20disabilities https://www.theguardian.com/society/2015/aug/22/autism-creative-thinking-study#:%7e:text=people%20with%20autism%20and%20learning%20disabilities%20excel%20in%20creative%20thinking%2c%20study%20shows,-this%20article%20is&text=a%20new%20study%20showing%20that,about%20people%20with%20learning%20disabilities https://www.theguardian.com/society/2015/aug/22/autism-creative-thinking-study#:%7e:text=people%20with%20autism%20and%20learning%20disabilities%20excel%20in%20creative%20thinking%2c%20study%20shows,-this%20article%20is&text=a%20new%20study%20showing%20that,about%20people%20with%20learning%20disabilities https://www.theguardian.com/society/2015/aug/22/autism-creative-thinking-study#:%7e:text=people%20with%20autism%20and%20learning%20disabilities%20excel%20in%20creative%20thinking%2c%20study%20shows,-this%20article%20is&text=a%20new%20study%20showing%20that,about%20people%20with%20learning%20disabilities https://www.theguardian.com/society/2015/aug/22/autism-creative-thinking-study#:%7e:text=people%20with%20autism%20and%20learning%20disabilities%20excel%20in%20creative%20thinking%2c%20study%20shows,-this%20article%20is&text=a%20new%20study%20showing%20that,about%20people%20with%20learning%20disabilities https://apps.who.int/iris/handle/10665/42980 https://www.autism.org.uk/advice-and-guidance/what-is-autism/autistic-women-and-girls https://www.autism.org.uk/advice-and-guidance/what-is-autism/autistic-women-and-girls practice report 145 an obstacle for women and girls in accessing the help they need. it has been argued that in attempts to blend in with their peers, autistic girls may “mask”24 their traits and therefore symptoms may not be recognised. “masking”, also known as “social camouflaging”, is a coping mechanism adopted by autistic individuals to pretend not to be autistic.25 this strategy has been described as an obligation as opposed to a choice.26 a way in which an autistic person may camouflage is through mimicking other non-autistic people, such as their facial expressions, attitudes, and gestures, or their interests,27 to appear more socially aligned with their peers.28 the constant observation and modification of one’s behaviour can have adverse effects. the suppression of symptoms at school can result in a child having meltdowns once returning home as an outlet to release the built-up tension maintained during the school day.29 this behaviour at home is also facilitated by the belief that children feel able to be “their worst selves” in their safe spaces as their families will still love and care for them.30 24 will mandy, ‘social camouflaging in autism: is it time to lose the mask?’ (2019) 28[3] autism 1879. 25 ibid. 26 ibid. 27 ibid. 28 katherine hobbs, ‘autism in girls: what are the signs?’ (autism parenting magazine, 13 april 2022) < https://www.autismparentingmagazine.com/signs-of-autism-in-girls/> accessed 4 may 2022. 29 beth arky, ‘why are kids different at home and at school?’ (child mind institute) < https://childmind.org/article/kids-different-home-school/> accessed 4 may 2022. 30 ibid https://www.autismparentingmagazine.com/signs-of-autism-in-girls/ https://childmind.org/article/kids-different-home-school/ practice report 146 imitating neurotypical behaviour and disguising their symptoms is also observed by many autistic young women. social camouflaging is practised to find a good job as well as connect with friends.31 to navigate through social interactions without drawing attention to themselves, some women on the autistic spectrum have expressed that they create and rehearse scripts to share in conversations.32 the long term effect of social camouflaging can, however, lead to mental health conditions.33 whilst “masking” can of course be employed by both autistic men and women, it appears to be more common amongst girls and women who may not only feel the pressures to come across as neurotypical but also to conform to gender stereotypes.34 however, as pearson and rose highlight, masking should not be linked to a “femalespecific” subtype of autism because this might also lead to other people getting a diagnosis, and exclude non-binary people or those who did not fit into any of the current criteria.35 asd largely affects how an autistic person communicates and socialises and this directly affects how they process information. as some people with autism may not understand sarcasm and abstract concepts, there may be some difficulty in reading 31 francine russo, ‘the cost of camouflaging autism’ (spectrum, 21 february 2018) <https://www.spectrumnews.org/features/deep-dive/costs-camouflaging-autism/ accessed 4 may 2022. 32 ibid. 33 katherine hobbs, ‘autism in girls: what are the signs?’ (autism parenting magazine, 13 april 2022) < https://www.autismparentingmagazine.com/signs-of-autism-in-girls/> accessed 4 may 2022; milner, mclntosh et al, ‘a qualitative exploration of the female experience of autism spectrum disorder (asd)’ (2019) 46[6] j autism dev disord 2389. 34 ibid 35 amy pearson and kieran rose, ‘a conceptual analysis of autistic masking: understanding the narrative of stigma and the illusion of choice’ (2021) 3[1] autism in adulthood, 52. https://www.spectrumnews.org/features/deep-dive/costs-camouflaging-autism/ https://www.autismparentingmagazine.com/signs-of-autism-in-girls/ practice report 147 others and interpreting information. it has been said that autistic individuals tend to think from the bottom up.36 this seems advantageous in situations where examining details is required.37 the literature on how autistic people process legal information is scarce. however, what is certain is that the law in general is renowned for being complicated and/or intimidating to non-legal people. although under researched, it has been recognised that autistic people may be at a disadvantage at the hands of our legal systems due to difficulties relating to communication and social skills and body language.38 identifying an individual as autistic earlier on in the process can help ensure the relevant professional support is offered.39 an interview between camilla pang, scientist and author specialising in autism with the national autistic society, has highlighted the difficulties in processing information during the covid-19 outbreak.40 the confusing and constantly changing laws and government guidance severely interrupted everyone’s lives but this had a particularly distressing effect on autistic people who have a strong preference for having a routine which ensures stability. in navigating the new social norms, pang 36 applied behaviour analysis, ‘4 ways a child with autism processes information differently’ https://www.appliedbehavioranalysisedu.org/4-ways-a-child-with-autism-processes-informationdifferently/ accessed 4 may 2022. 37 ibid. 38 graeme hydari, ‘autism and the criminal justice system’ (the law society gazette, 29 november 2013) < https://www.lawgazette.co.uk/practice/autism-and-the-criminal-justice-system/5039018.article> accessed 4 may 2022. 39 ibid. 40 national autism society, ‘stories from the spectrum: camilla pang’ < https://www.autism.org.uk/advice-and-guidance/stories/stories-from-the-spectrum-camilla-pang> accessed 4 may 2022. https://www.appliedbehavioranalysisedu.org/4-ways-a-child-with-autism-processes-information-differently/ https://www.appliedbehavioranalysisedu.org/4-ways-a-child-with-autism-processes-information-differently/ https://www.lawgazette.co.uk/practice/autism-and-the-criminal-justice-system/5039018.article https://www.autism.org.uk/advice-and-guidance/stories/stories-from-the-spectrum-camilla-pang practice report 148 recommended not to suppress one’s anxiety but to replace that energy with something enjoyable or helpful. 3.2. the autism legal rights café in june 2021, sycamore trust u.k. and legal researchers from royal holloway, university of london hosted an autism café, at the sycamore trust’s romford autism hub. the autism café consisted of two parts. the first part of the café involved the delivery of a legal workshop on special educational needs (sen) law, delivered via zoom by specialist lawyers from talem law. this workshop engaged the audience and provided an overview of sen, special educational provision, including meeting sen in schools and the framework of education, health and care plans. the second part of the café consisted of an arts and crafts afternoon with the authors and a research assistant, sycamore trust personnel, and part of the young women’s group at the sycamore trust. the experimental session was largely carried out in person, with one student attending remotely. all of us as participants explored our everyday habits, challenges, objects, and surroundings to see what they can tell us, and then to explore how they connect to the uses and problems of law. marshall’s ‘everyday spaces’ research was discussed with a focus on how lockdown has demonstrated our care for each other, from our intimate partners and families, to those we do not know, including certain groups of people categorised by special requirements and in need of extra assistance, for example, the infirm elderly, the practice report 149 homeless, those with disabilities. as in the afghan café, marshall explained how a focus on the ‘infra-ordinary’ of the everyday, and our awareness of it, can help to highlight aspects of the legal system, and how our society is shaped and regulated by law.41 this sought to encourage the young women at the autism hub to express their experiences and thoughts about their daily lives and challenges through various creative outlets such as painting, drawing, and air-drying clay, bringing new perspectives to whose voices count in shaping the world we see and experience and in turn the laws we create in it. exploring the unquestioned and seemingly mundane can help us discover how we perceive ourselves. it can enhance empathy and understanding of others’ perspectives and our awareness of the material world in which we live. what was evident through the event was that the young women were able to express objects that were important to them. they explained why these had importance. their artistic ability was evident and their vivid explanations of problems and deficiencies encountered with the legal system were shared. they told us how they perceived law, and what the law should look like, for example, in order to “protect” people, as one participant noted. this arts and crafts workshop enabled the applicants to work together to connect legal practice to law’s theory, practice and social justice. in addition, the workshop promoted both the legal advice centre’s mission to empower those in society whose legal needs are often unmet. further, it promoted public legal 41 jill marshall, above note 8. practice report 150 education to the local community. most importantly, the young women actively participated. most of them openly spoke and shared their views and they all expressed, through their individual artwork, the talents and creativity they possess in abundance. this project was participatory and collaborative: an essential approach to deal with human rights, social justice, disability, and equitable knowledge exchange and production. the main aim of this public engagement and collaboration is to enhance, in any way we can, the empowerment of those with autism and hardworking under-resourced charities working with them. this shows how universities can enrich communities and provide a platform to the charities working to improve lives. our law and criminology department’s rights and freedoms research cluster, marshall’s research, and the legal advice centre’s outreach support seeks to encourage this through open dialogue, demonstrating our commitment to being part of a socially responsible university, and to making research accessible to the public, specifically those isolated in society.42 4. conclusions the need to be creative in the way information, and in particular the law, can be disseminated was something with which the authors experimented, through the lens of marshall’s most recent research, and these café events. 42 see http://www.sycamoretrust.org.uk/latest/article/a-royal-event%21 accessed 4 may 2022. practice report 151 the events provided space for the clinical legal educators to collaborate with researchers and external stakeholders through an original piece of research. this event enabled royal holloway to disseminate research for public benefit and specifically to develop collaborative networks with a non-governmental organisation working with vulnerable diaspora communities, a disability charity and legal professionals. we linked theory to practice through knowledge production, offering alternative ways of rethinking law and risks of discriminatory treatment and law’s potential to transform injustices. one future aim is to develop further research into how policy and legal documents, that are often accessed by these groups of people, can be re-written so that they are informed by their own views and more accessible to them. the lessons that can be drawn from these events are that listening to participants’ original expressions and being creative with the way that research can be explained to the public, including those that may have learning or developmental disabilities, has shown that it is possible to make the law interesting and accessible. project1 “irish clinical legal education ab initio: challenges and opportunities” lawrence donnelly* i. introduction this article details the incipient efforts of one irish university law school, the national university of ireland, galway (nui galway), in the field of clinical legal education. while clinical legal education, which began in the united states some fifty years ago, has made significant advances throughout the rest of the common law world, it remains at a very early stage in ireland.1 in fact, irish efforts in the field to date more closely resemble what is known in the united states as the “externship model” of legal education, rather than what are commonly identified as law clinics in other jurisdictions.2 and for a variety of reasons that will be touched upon later in this article, the law school clinic is unlikely to develop here to the same extent it has elsewhere. as such, this article explores what irish clinical legal education currently looks like and what it might look like in the future. it begins with some background on and consideration of legal education in ireland, then, using nui galway as a case study, details the emergence of skills teaching in the curriculum and the consequential increase in participation in moot court competitions and in student scholarly output. the article next examines the establishment, organisation and maintenance of a placement programme for final year law students. in so doing, it reflects on what has worked and what has not at nui galway from the perspectives of the clinical director, placement supervisors and students. the article concludes with some realistic, yet sanguine, observations as to what future clinical legal education has in ireland. 56 journal of clinical legal education december 2008 * b.a., j.d. attorney at law. lecturer & director of clinical legal education, school of law, national university of ireland, galway. both because of the author’s background and the breadth of relevant scholarly work on the topic published there, much, though not all, of the material referenced herein is from the united states. the author would welcome feedback at larry.donnelly@nuigalway.ie from colleagues in jurisdictions with more advanced clinical programmes. 1 nui galway and university college cork are the sole universities who have a dedicated “clinical person” and the university of limerick has an internship programme for all of its students, not just those studying law. 2 see elliott milstein, clinical legal education in the united states: in-house clinics, externships, and simulations, 51 journal of legal education 375 at 380 (2001). ii. irish legal education: historically and today unlike other jurisdictions such as the united states, law is taught as an undergraduate subject at irish universities.3 this, of course, has myriad consequences for its teachers and students. for students, “[l]aw is not a particularly difficult subject (apart, perhaps, from the rule against perpetuities!), but its study benefits greatly from maturity and some experience of the world. even the brightest seventeen-year old – and many of those who study law at university are the brightest students in the country -will find it difficult to grasp the broader social and economic contexts of judicial decision-making.”4 generally speaking, teachers simply cannot expect the same level of interest, participation and passion from undergraduate law students and their approach to teaching is likely to reflect that.5 the pros and cons of both models have been discussed previously and the question of which is superior is open to debate.6 suffice it to say that the undergraduate model of legal education utilised in most of the common law world is as unlikely to change as the american regime of postgraduate legal education. moreover, proliferation in the different types of irish law degree programmes (law and business, law and language, etc.) and the fact that one needn’t necessarily undertake a university law degree to become a lawyer militate against a “one size fits all” system and allow for a good deal of flexibility.7 traditionally, irish university law schools employed practitioners, as well as full-time academics, to teach substantive law modules to students.8 this has long been a prominent feature of legal education in the united states, where even the top law schools recognise the value of bringing in sitting judges and practising lawyers to teach their students.9 these courses often prove the most popular and well-rated offerings among students. as of late, however, the irish universities have moved away from employing part-time or adjunct lecturers.10 in hiring new personnel, there seems to be little or no merit seen in practice experience; the letters ph.d. behind a candidate’s name tend to trump all other considerations. an evaluation of the wisdom behind this move (though quite dubious in this author’s mind) lies beyond the scope of this piece, but one of its inherent “irish clinical legal education ab initio: challenges and opportunities” 57 3 see paul o’connor, legal education in ireland, 80 michigan bar journal 78 at 78 (2001). 4 see william binchy, the irish legal system, 29 international journal of legal information 201 at 216 (2001). 5 see brook baker, teaching legal skills in south africa: a transition from cross-cultural collaboration to international hiv/aids solidarity, 9 legal writing: the journal of the legal writing institute 145 at 147, 149 (2003) (“students took a regime of full-year, huge lecture courses (200-500 students in a class) in which they passively took notes”). 6 see william twining, rethinking law schools, 21 law and social inquiry 1007 at 1009–1012 (1996) (describing the strengths and weaknesses of undergraduate and postgraduate legal education). 7 see william binchy, the irish legal system, 29 international journal of legal information 201 at 216–217 (2001). 8 see paul o’connor, legal education in ireland, 80 michigan bar journal 78 at 78 (2001). 9 see david hricik, life in dark waters: a survey of ethical and malpractice issues confronting adjunct law professors, 42 south texas law review 379 at 382 (2001) (“current american bar association (“aba”) accreditation standards encourage law schools to ‘include experienced practicing lawyers and judges as teaching resources to enrich the educational program.’”). see also james stewart, the moonlighters – extracurricular work by law professors is source of controversy, the wall street journal, 1 march 1984 (noting that harvard law school employs both practitioners and scholars as teachers). 10 see paul o’connor, legal education in ireland, 80 michigan bar journal 78 at 78 (2001). consequences is that the emphasis in the teaching of substantive law modules has veered very much toward the theoretical.11 yet at the same time, a cognisance of the need for “early intervention” practical skills education has emerged in the irish university law schools. competition, first for entry and then for employment as either a solicitor or barrister, is extremely difficult and law graduates are now expected to have well-developed practical skills in addition to theoretical knowledge.12 to this end, all the universities now offer some form of formalised training in legal analysis, research and writing; whether as a stand alone module, in a legal systems course or as a part of a substantive law offering. the university law schools are eschewing the practical and embracing the academic in their hiring practices. the professions and the students are crying out for more of the former.13 it is in the context of these two incongruous trends that clinical legal education is developing in ireland. iii. the clinical experience at nui galway as a case study a. practical legal skills module much to the credit of the faculty of law at nui galway and largely at the urging of senior academics who had been exposed to legal education practice in other jurisdictions, a visiting fellow from the united states was invited annually to teach a one semester (12 week) module in legal analysis, research and writing to all students starting in the early 1990s. naturally, the visiting fellow’s legal ability and capacities for teaching and cross-cultural engagement varied from year to year, as did the learning experience for the students. to ensure that students would have a consistent experience, after two successful years as a visiting fellow, i was appointed in a permanent capacity. the module, entitled legal methods & research, focuses on developing the sine qua non lawyering skills: how to read, analyse and interpret case law and statutes; how to find relevant primary and secondary legal sources, using both traditional and computer-assisted research methodologies; and how to write clear, concise and sophisticated prose. the module’s overarching purpose, inextricably intertwined with all facets of skill development, is to expand each student’s capacity for critical thought, i.e., to make her think like a lawyer. it is a required subject for all students studying law at nui galway. 58 journal of clinical legal education december 2008 11 ibid. at 79 (“in ireland, the primary objective of academic legal education is intellectual formation in the law through the acquisition of analytical and research skills while professional legal education is more vocational and directed toward practice issues. this is not to suggest an overly rigid dichotomy, but rather a difference in ethos and emphasis.”). see generally james dolin, opportunity lost: how law school disappoints law students, the public, and the legal profession, 44 california western law review 219 (2007) (discussing a similar trend in the united states). 12 see john o’keeffe, why our barristers are just like taxi drivers, the irish independent, 6 april 2008 (noting the barriers to entry and real competition in the legal profession). 13 see james dolin, opportunity lost: how law school disappoints law students, the public, and the legal profession, 44 california western law review 219 at 241–242 (2007) (“but while the professorate may be quite happy with the academic slant in law school, students are not. students come to law school to be trained as lawyers, not as academics. on a personal level, i frequently hear from my students about the irrelevance of what they learn, especially in the third year. many express a deep desire for more practical skills such as how to handle clients, how to draft basic transactional documents, and how to operate a law office.”). many of my students who have been through the clinical placement programme at nui galway make very similar comments. see infra. the module is akin to, though far less rigorous than, the required research and writing course for all first year law students in the united states. it is examined by means of continuous assessment. a series of brief, discrete assignments testing students’ writing, analytical, research and citation abilities culminates in a longer written project in which students are required to integrate the skills the module seeks to engender. the module, traditionally taught over the course of one semester, has now been expanded to a full year for students in the bachelor of civil law (b.c.l.) degree programme, i.e., our flagship law programme from which most graduates seek entry into the professions. the module has proven quite successful in that the students who engage with it fully develop solid research, writing and analytical skills which inure to their benefit immediately on exams and essays in substantive law subjects. the two central problems with it, however, are: 1) some students feel that it is not a “real” law subject and, perhaps even more troubling, their sentiments are, to some extent, shared by colleagues; and 2) from a teaching and correcting perspective, it is extremely labour intensive, especially in a university setting where the premium is on research and publication output. despite these issues, the vast majority of our students emerge well versed in practical legal skills. successful completion of legal methods & research is an absolute requirement for further participation in our clinical programme and my own informal, empirical research indicates that those who perform best in the module are typically the students who have contributed to the initial successes of our clinical legal education programme. b. moot court participation and student scholarship an immediate consequence of this emphasis on developing practical skills for our students has been expanded participation in moot court competitions – in individual modules, in intrauniversity competitions, national competitions and international competitions. for the first time, first year students in two of our law degree programmes (the ll.b. and b.c.l.) now have mooting exercises as assessed components of one of their modules. moreover, the student law society now elects a moot court officer who, with the support of various members of academic staff, fosters and encourages the participation outside the course curriculum of students in a wide variety of moot court competitions within the university and in a national competition among the universities, blackhall place (trainee solicitors) and king’s inns (erstwhile barristers). nui galway students also compete annually in a national moot court competition conducted in the irish language. individual staff members work with teams of students who have participated successfully in moot court competitions at european and international levels as well. in addition to traditional mooting, these competitions also require that students perform extensive legal research and draft lengthy legal memoranda in support of their position. as such, they have proven extremely valuable learning experiences for participants. another welcome result of our efforts in skills training, though perhaps not a traditional component of the clinical experience, has been a substantial and heretofore unseen growth in student scholarship. while participation in a student law review or journal has long been a prized feature of the american law student experience, it has only recently come into prominence on this side of the atlantic. the galway student law review has become a vibrant outlet for our students’ scholarly interests and is available not only on our own dedicated website, but also on the fully searchable database of the prestigious american online legal publisher, hein on line, with whom “irish clinical legal education ab initio: challenges and opportunities” 59 we recently contracted.14 additionally, our students – both undergraduates and postgraduates – have had a number of articles published in peer-reviewed national and international law reviews and journals.15 again, while not technically under the rubric of clinical legal education, this proliferation of student scholarship is a particularly noteworthy development, given that a number of our graduates do not go into the legal professions, but pursue careers in which the independent initiative, critical thinking capacity and research and writing ability they have demonstrated in becoming published authors are invariably prized traits. while the benefits of moot court competitions and student publications are manifest, some challenges remain. as for the former, it remains a relatively small number of students who participate in various competitions. an increase in the involvement of academic staff and an allocation of academic credit for those students spending long hours preparing for and taking part in moot court competitions might go some way toward increasing the number of participants. a somewhat converse weakness afflicts the realm of student scholarship. the editorship of the galway student law review remains almost entirely the responsibility of its faculty advisors. it would be highly desirable for much of this task to devolve to students working to produce the review, similar to the american model. they should then be entitled to academic credit for the extensive time and effort this would entail. but the long term sustainability of undergraduate editorial control remains open to question and the quality of the finished product would almost certainly fluctuate from year to year depending upon interest and ability levels. 3. clinical placement having advanced classroom skills teaching and increased participation in extracurricular legal activities, i began to examine the feasibility of a clinical placement programme for our students in academic year 2005–2006 with the aid of a funding grant from the centre for excellence in learning and teaching at nui galway. while colleagues were generally receptive to the possibility, it took some time to clear administrative hurdles and to develop potential placement opportunities for our students. fortunately, the administrative hurdles were easily surmounted and the “system” was able to accept the new module, despite the fact that there were to be no formal lectures or assessments. the next task was to find suitable placement opportunities. based on lengthy consultation with people involved in clinical legal education in the united states and with academics from other disciplines, it was decided that the best way to facilitate placement opportunities for students was to use the wide ranging contacts of my law colleagues. a personal approach, as opposed to “cold calling,” while not as far-reaching, seemed far more likely to elicit a response. and fortunately, our experience to date has proven that we were right. moreover, we were determined that our clinical legal education programme would be consistent with the lofty aims and greatest successes of 60 journal of clinical legal education december 2008 14 volumes 1, 2 and 3 are available at http://www.nuigalway.ie/law/gslr/. volume 4 is in production at the time of writing. 15 see, e.g., james jeffers, the representative and impartial jury in the criminal trial: an achievable reality in ireland today?, (2008) 18(2) irish criminal law journal 34; emma storan, section 117 of the succession act 1965: another means for the courts to rewrite a will?, (2006) 11(4) conveyancing & property law journal 82; emma storan, et al., the regulation of genetic testing in insurance and employment – avoiding the legal minefield, (2006) 13(1) commercial law practitioner 12; mary drennan, duty of care to the intoxicated: the irish approach?, 4 san diego international law journal 423 (2004). clinical programmes elsewhere, on the one hand, and, on the other, with the strong public interest orientation of legal education at nui galway.16 simply stated, we wanted our students to utilise their knowledge and skills, wherever possible, for the benefit of marginalised in society and to see how law can be an effective instrument for social change.17 the optional module, clinical placement, has been available to final year students on our b.c.l. degree programme for the past two years. its description is as follows: this optional one-semester module requires that students utilise their legal training in suitable work placements for ten weeks. students should generally expect to work for 8–10 hours each week (i.e., the equivalent of two ½ days or one full day). it is preferable that students be engaged to the extent possible in substantive work (i.e., legal research, working with case files, observing court proceedings, etc.) as opposed to more mundane tasks. the module will open with an introductory seminar, in which students will be informed generically as to the nature and scope of their responsibilities, and close with an interactive seminar, in which students will share their individual experiences. assessments will be predicated on a final reflection paper. also, satisfactory written evaluations from supervisors are a prerequisite to successfully completing the module. in the event that the number of students desiring to take the module exceeds the limited number of available placements, a selection process incorporating a number of relevant factors, such as results in other modules, interest level and related experience, will determine entry. students have been placed with the quasi-governmental bodies like the equality authority, the national federation of voluntary bodies, and the rape crisis network ireland. they have worked with non-governmental organisations, with academics on public policy research projects and with practitioners throughout ireland. their experiences typically involve research and writing and, accordingly, their work can be done remotely. this has enabled students to take on placements in dublin and elsewhere without being disadvantaged by our somewhat isolated position in the west of ireland. students placed with practitioners have been more heavily engaged with clients and court procedure and typically are “on site” more often than students placed with quasior nongovernmental bodies. generally, students are placed according to their own interests and tentative career objectives. some of their revealing feedback follows. the students placed with practitioners have experienced first hand how theory operates, or does not operate, in practice. one student observed: “the solicitors seemed to welcome the possibility of an e-conveyancing system and regarded its introduction as inevitable. there was some concern, however, that older members of the profession would find the change difficult. my experience with computers and skills i learned in the legal methods & research course were of great assistance in this area. given continuing modernisation in legal practice, i believe that a bigger emphasis on this type of training would be beneficial in preparing students for dealing with the realities of practice.”18 “irish clinical legal education ab initio: challenges and opportunities” 61 16 see generally robert greenwald, the role of community-based clinical legal education in supporting public interest lawyering, 42 harvard civil rights-civil liberties law review 569 (2007). 17 see peter joy, political interference in clinical programs: lessons from the u.s. experience, (2005) 8 international journal of clinical legal education 83 at 87 (noting that foremost among the objectives of students, educators and students who pioneered clinical legal education was “to expand access to justice by representing poor and unpopular clients and causes…”). 18 student reflective essay (on file with author). another student’s frank assessment of his experience on placement demonstrates that the emphasis in university legal training is quite theoretical in nature. this student is not alone in regarding this as a shortcoming in his education. “leave theory to the academics and legislators. the primary duty of the solicitor is to serve his client, not the law. as an aspiring solicitor, i’m glad i came to recognise this reality sooner rather than later and offer more by way of my skills rather than my opinions. journal articles are the appropriate forum to propose law reform, not the law office. the firm was client-centred, and naturally so, as the solicitors in the office wished to retain the custom of the numerous clients. i think that this aspect of the law is too often forgotten in university courses and the clinical placement gave me valuable experience in this regard.”19 and it is in filling this gap that clinical legal education, as it has in many other jurisdictions across the globe, can potentially play such a vital role in ireland. feedback from students placed with quasior non-governmental organisations has tended to be more philosophical in nature. “the placement demonstrated to me the limits of the law and how, within its confines, there is very little place for the vulnerable and the victimised. the person is sometimes invisible. the law can only extend so far and what is needed is much greater correlation between the different spheres: social work, policy makers and the law.”20 other students in similar placements have “gained many valuable skills and insights and learnt so much about how the law can meaningfully impact on society” and found that the placement “made me question my own personal attitudes and values as i was placed on an immense learning curve.”21 again, the value of the placement experience is manifest. fortunately, placement supervisors have been equally enthused and impressed with the quality of students they’ve worked with. one practitioner observed that: “i usually find that having students in the office can be a hindrance, but she has changed my opinion on that. i found myself looking forward to her placement days and setting aside tasks for her alone to deal with on the placement.”22 a supervisor at a quasi-governmental organisation who had two students working on a rather complicated and time-consuming project voiced a similarly high opinion of their work product. “the task set for these students was challenging and demanding, involving a legal analysis of a complex eu directive. they approached their task with enthusiasm and tenacity, and produced concrete conclusions, which are very helpful in addressing significant information deficits which exist in relation to this topic. i am very happy to commend both women for the high quality product which they produced.”23 these comments are only a representative sampling. many students and supervisors have been equally enthusiastic and a number of students have found that the placement gave them an advantage in pursing employment after graduation or, equally importantly, helped to redefine a 62 journal of clinical legal education december 2008 19 ibid. 20 ibid. 21 ibid. 22 placement supervisor evaluation (on file with author). 23 ibid. career path. so to date, the experiences of all parties involved have been very positive on the whole. that is not to say, however, that there have not been failings – some of which can be ameliorated, others which remain likely to persist. some practical problems with the programme have surfaced over the past two years. the experiences of students, placement supervisors and the clinical director – both across placements and from year to year – have been inconsistent. because we are dealing with the outside world, there are inevitably issues beyond our control. some placements, for a myriad of different reasons, just cannot provide as good or enriching a learning experience as others. when i place students, at times, i know this, but can only hope that they “make the best of it.” one year, a practitioner might have a slew of interesting cases and can give the student a great deal of work, but she might have little work the next. a quasi-governmental organisation might be at the forefront of a volatile legal or political issue one year, but relatively dormant the next. illnesses occur. these very mundane, yet no less troublesome, problems can and are being addressed on an ongoing basis by imposing stricter quality controls and by requiring full, frank disclosures from all parties to the placement at the start of each academic year. but there are even larger obstacles in the way of clinical legal education’s further development in ireland. first and foremost, money is scarce. the breadth of resources and the innovative uses those resources have been put to by clinicians from around the globe confounded this attendee at the sixth international journal of clinical legal education conference. given that our students do not pay fees, that our alumni networks have not been tapped for donations the way they have elsewhere in the world and that the irish government now finds itself facing a significant budgetary shortfall reminiscent of the 1980s malaise, it is hard to see when we will get similar funds. expanding clinical programmes is impossible without adequate monetary resources. second, the establishment of legal clinics, similar to those in the united states, the united kingdom et al., is likely to meet with significant opposition from the professions, who fear any diminutions in their slices of the pie. notably, i suspect that free legal aid centres, fearful of what the government might do to their budgets in the event that universities opened law clinics serving indigent clients, might prove among the most vociferous opponents. and lastly, from the perspective of one within the university, the undeniable emphasis in hiring and in promotion on more esoteric academic scholarship and the inevitable devaluing of practical experience or innovative approaches to teaching is a great disincentive to devoting a career exclusively to clinical legal education. as the great successes of clinical legal education around the globe demonstrate, that full-time commitment is what is required. iv. conclusion so, whither irish clinical legal education? despite the despondency of the forgoing sentiments, it is not likely to wither anytime soon. the programme here at nui galway, due in large part to the enthusiasm of students, placement supervisors and academic staff, is thriving and attracting notice from a broad audience. university college cork has its own clinical programme and moves are afoot at the university of limerick. perhaps most promisingly on the horizon, a newcomer to the field, university college dublin, has plans for a clinical legal education centre in its new, purpose-built law school building, scheduled for completion in 2011.24 “irish clinical legal education ab initio: challenges and opportunities” 63 24 sarah neville, young legal eagles will get to spread their wings in mock court as part of new university project, the evening herald, 2 august 2008. in the end, those of us involved in the development of clinical legal education here in ireland must remember that we are, to an extent unprecedented in the history of irish university legal education, equipping some of our students with practical know-how and a cognisance that law can be used to achieve the greater good. we must keep plotting away at our work, mindful of the obstacles that still confront us, but always aware of the opportunities for continued, steady expansion by increments and ever hopeful that something great might be around the next corner. 64 journal of clinical legal education december 2008 professor philip kenny – a leader in the uk and international clinical legal education movement – a personal tribute i write to report the sad news of the death of professor philip kenny (1948-2016). phil was the dean of the law school at northumbria university for 28 years. phil’s achievements during this period were considerable, taking a provincial polytechnic law school with a small staff to become a well-known innovator in legal education in the uk with over 100 academics, a unique (in the uk) integrated academic and vocational combined law qualification “exempting degree”; innovative distance learning masters programmes in specialist areas such as mental health, medical law and information rights; a part time degree which gave access to the law profession for many from non-traditional backgrounds and one of the first barristers’ programmes outside the traditional inns of court, london based programmes – breaking the oligopolistic and expensive old boys network to create a (slightly) more accessible profession. as far as i am concerned however, his crowning achievement was northumbria’s student law office. phil recognised the power of clinical legal education at an early stage. students at northumbria university benefitted from working with real clients from the late 1980s onwards. at first this was through externship but by the early 1990s northumbria was running an in-house clinic open to the public – the student law office as an integral part of its undergraduate degree programmes. the office was run for credit and contributed to the award gained by students. by the time phil and his colleagues had instigated the exempting degree (undergraduate llb hons plus one year vocational qualification) in 1992, the ( ijcle vol 23 no 2 ) ( 4 ) student law office was a capstone course which all final year exempting students had to take for credit. of course many other colleagues were instrumental in the early pedagogical and practice based foundations of the programme but phil through his determination provided the resource and drive to make it a success. it is expensive to run a law clinic that is embedded in the curriculum with its own dedicated administrator, permanent qualified solicitor supervisors (alongside other lawyers from the school), dedicated office space with more than 70 computer workstations, six interview rooms and connected library. at a time in the uk when universities were publically funded at quite a low level for law students, phil was prepared to fight for and provide the resources to fund such activities. i hope that my colleagues from kent university, leading the movement by running clinics since the 1970s, won’t mind me disclosing their astonishment at the level of resource provided when visiting our then office. phil himself was a student law office supervisor to the end of his career, lending his expertise as a nationally regarded expert in the field of property law. how many law school deans can say that, alongside their other onerous duties, they continue to work on real client cases with their students? his successors followed his lead and we continue that tradition today with senior staff, including myself, working with students in the office. in later years, phil went on to support the instigation of this journal, its annual conference and the bespoke new facilities in which the clinic is housed. he could have opted for easier and cheaper “clinical” courses but he chose not to. i believe this was not simply because he rightly saw this making the law school “distinctive” or providing a “usp.” he did it because he believed in it educationally. readers of this journal will recognise the transformational experience that clinic can provide for our students, our clients and society. my guess is that because phil did not publish widely or give papers on the subject – never indeed attending our conference – he is not well known in the clinical movement but his influence nevertheless exists. his legacy for us at northumbria is the realisation of the need to prioritise and privilege clinical education. now that we have become a faculty of business and law we are giving colleagues in the business school the same free rein to develop clinical business services with, again, the driving ambition to place real experiential education at heart of what we and our students do – not an extra-curricular voluntary activity but one which we develop the whole curriculum around. this short note is not intended as a hagiography or to obscure the important efforts of others at northumbria or elsewhere. one of the reasons why phil was such a successful innovator was probably the fact that he was prepared to take decisions in the face of opposition – at times from his own colleagues as well as in the university more generally. an incident where he decided students would interview clients by themselves instead of in pairs despite my objections comes to mind (though he eventually relented). despite this i would like to recognise his contribution as a strong and driven personality who believed in the fundamental concept of clinical legal education, made it happen in this north east corner of the uk, provided a platform for positive influence globally and transformed the lives of many students and others including my own as an educator. as i experience more of the middle management positon in universities for myself i have come to realise this is no mean feat. jonny hall, northumbria university. now with added technology: change and continuity for the ijcle editorial now with added technology: change and continuity for the ijcle elaine hall northumbria university, uk welcome to the first online edition of the international journal of clinical legal education. the ijcle archive, which is gradually building up on this site, demonstrates the strength and breadth of the work done in clinic around the world and in the online edition we intend to make this work easier to access, more interlinked and with a greater impact on research, theory and practice. one of the ways in which we will be helping readers to navigate is by grouping papers in strands1. • clinic, the university and society: this strand addresses the role of clinic as an instrument for civic engagement, access to justice and societal change. • teaching and learning in clinic: this strand investigates the curriculum, pedagogy and assessment used to prepare students for and support students during their clinical experience. • research and impact: this strand will focus on the evidence base for clinical education and will explore the weight of evidence and the knowledge claims. 1 more details of the strands, instructions for authors and review policy can be found on the website under about the journal 1 the papers will develop our conception of the impact of clinic by giving the rigorous presentation of a range of empirical data a strong critical and epistemological frame. papers in this strand may therefore have a topic focus from another strand but the balance of the paper will be weighted towards an exploration of the research methods used (in a report of a particular empirical study) or of the balance of approaches to research in cle (in a review of existing studies). the articles in this journal are freely available in a form of open access that is often referred to as platinum, since it has the immediate availability of gold access, without the author processing charges sometimes associated with that model. this approach allows us to spread the word about clinical education as efficiently as possible and continues the long tradition of the ijcle of inclusion and dialogue. we welcome submissions from practitioners from all legal and educational jurisdictions and from allied fields. the ijcle will appear three times a year in summer, autumn and spring editions, containing as before a mixture of reviewed articles and practice reports and in a new feature, from the field: discussions about the role of clinic and development news. in this edition maxim tomoszek from the czech republic reflects on the underlying beliefs and assumptions of clinical education and how this has impacted upon the development of clinic in olomouc. he makes a particularly telling comparison drawn from the adoption of judicial councils in europe and raises some interesting 2 questions about the advantages and disadvantages of both innovation and conservatism. richard owen presents the innovative use of technology to encourage reflective dialogue with and about young offenders in his article in the clinic, the university and society strand. however, the technology is perhaps merely the vehicle for the truly innovative element in this work, which is a form of advocacy that foregrounds voices rarely heard in the criminal law process. young offenders in this study reflect on the impact of their crimes and on what place they can now claim in society whilst members of the public interact with the text messages and contribute reflective interviews on the same topics. as society’s conceptualisation of ‘lawyers’ work’ moves beyond advice and representation in court, projects like this prepare us and our students for a wider role in civic society. in the teaching and learning in clinic strand we have two papers that pick up on this theme in very different ways. shaun mccarthy takes as his focus the increasing use of tribunals and argues for a specific skill-set for this less adversarial arena. the development of these skills through an experiential pedagogy within the specific context of mental health raises important issues for students not just about tailoring their argumentation and presentation but more deeply about their role in coconstructing situations where vulnerable people’s voices can be heard. liz curran and tony foley engage with the thorny issue of quality and how this relates to our assessment of students’ performance in clinic. in their paper they 3 draw our focus to one of the key tensions of clinic between a manageable educational experience and the provision of a high quality legal service. their case studies highlight the importance of a range of feedback opportunities and structures so as to provide for ourselves, our students and the clients in clinic a more nuanced understanding of quality. we hope that you find much to stimulate thought and discussion in this issue, that this will prompt you to respond with your own ideas as future articles, that you will suggest improvements and additions to the journal and website and of course, that you will forward the link to the website to colleagues everywhere! a final, personal note: it is also my first edition as managing editor and i would like to thank jonny hall for his stewardship of the journal and also to thank maureen cooke for helping to manage the editorial transition. a dedicated and very patient team of technicians and library staff have made this online journal a reality and our heartfelt thanks go to them. 4 ijcle vol 23 no 3 practice report: clinic, the university and society street law for czech and slovak young roma musicians michal urban, hana draslarová[footnoteref:1] [1: judr. mgr. michal urban, ph.d. (urbanm@prf.cuni.cz) is a senior lecturer at charles university in prague, faculty of law, czech republic. he is also in charge of the street law programme at the faculty of law and participates in other clinics (simulations, externships). hana draslarová is a student of the final year of master programme of faculty of law, charles university in prague, czech republic. she has passed the street law course and was a member of the team teaching at the roma summer school. this text was supported by the charles university research development schemes, programme p17.] charles university, czech republic for almost seven years, street law has been a part of the curriculum of the prague law school.[footnoteref:2] over the years, law students have taught law at public and private grammar schools, high schools, business schools and also some vocational schools, mostly located in the prague region. they were all secondary schools and predominantly ethnically homogenous, since members of the largest czech minority, the roma, for various reasons hardly ever attend these schools.[footnoteref:3] last summer, however, a group of prague law school students and recent graduates travelled to eastern slovakia to organize street law workshops for roma teenagers. this text tells the story of their journey, reflects their teaching methodology and experience and offers a perspective of a law student participating in the workshops. [2: for a closer description of the street law programme and its goals at charles university in prague, faculty of law, see urban, m.: ‘how to discover students’ talents and turn them into teaching‘, (2011), vol 16, ijcle, pp 144 – 153.] [3: social exclusion of roma community in the czech republic is a major problem. one of the consequences of the prejudices concerning roma community is the problem of access to quality education, as for example described by amnesty international in its report ‘must try harder: ethnic discrimination of romani children in czech schools‘, amnesty international ltd, 2015, also available online https://www.amnesty.org/en/documents/eur71/1353/2015/en/ accessed 2016-03-08.] summer school for young roma musicians for almost two decades, a well-known singer of czech and roma origin, ida kelarová, has been organizing summer schools for young roma from the czech republic and slovakia. she has been gathering teenagers with musical talents and teaching them singing and dancing. they come from different socio-economic backgrounds, including many from socially very poor conditions. however, even those living in average families in terms of their income share the experience of being a member of a despised minority living in rather ethnically homogenous and intolerant countries. over the years, ida kelarová’s summer schools have become more professional and last year, the prestigious czech philharmonic[footnoteref:4] joined her project. several members of the leading czech (and european) orchestra attended the summer school, rehearsed with the roma choir formed by the participants of the summer school and towards the end of the summer school participated in a series of joint concerts for several excluded roma communities in eastern slovakia. as ida kelarová’s web pages put it, the aim of this extraordinary project was to bring “music and joy of music into places, which almost nobody wants to know about and which are symbols of social exclusion, poverty and life without any perspective”.[footnoteref:5] [4: for more information about the orchestra, which was established in 1896, see http://www.ceskafilharmonie.cz/en/.] [5: see: http://www.miret.cz/en/page.aspx?v=pagecollection-686.] whereas the main goal of the summer schools is to provide gifted roma children and youth from socially disadvantaged backgrounds an opportunity to develop their talents, the whole project also attempts to motivate them to continue with their studies and become concrete examples of educated, cultivated and successful roma that may serve as good examples both for the roma communities and the general population. since due to historical and sociological circumstances the roma communities in both countries tend to be rather neglected, undereducated and underdeveloped, society tends to look down on them and often treat roma as secondary citizens.[footnoteref:6] [6: in this regard, it is important to point out the constant effort of the open society foundation to improve the situation of roma not only in the czech republic. for more information see: https://www.opensocietyfoundations.org/topics/roma.] an important aspect in this regard is that the czech society is ethnically and nationally rather homogenous.[footnoteref:7] the largest national minority are the roma[footnoteref:8] and their tensions with the majority population represent an important source of instability for the czech republic. in the dominantly white czech population, for example ethnically and culturally very similar slovaks tend to easily assimilate or generally fit well with the majority, while the visibly-different roma stand out. during the last decade, the number of ghettoes in the czech republic doubled, and the majority of their inhabitants are the roma.[footnoteref:9] at the same time, anti-roma demonstrations and protests intensified, with peaks in 2011 in the northern czech republic and in 2013 in the south of the country. [7: there are only about 4% foreigners, whereas in neighbouring germany there were even before the refugee crisis 9%. see: ‘how many foreigners are there really in your country?' oneeurope [online]. [28. 3. 2016]. available at http://one-europe.info/eurographics/how-many-foreigners-are-there-really-in-your-country] [8: it is very hard to estimate the exact number of the roma living in the czech republic, since they notoriously fail to reveal their nationality in census. however, their numbers are expected to be between 150,000 and 300,000 in the 10 million population of the czech republic.] [9: refworld | consideration of reports submitted by states parties under article 9 of the convention, tenth and eleventh periodic reports of states parties due in 2014 : czech republic. refworld [online]. available from: http://www.refworld.org/docid/55c081274.html, pp. 10-11.] international human rights protection bodies have repeatedly expressed their concerns about this situation and stressed that although the state passed a number of strategic materials targeting the integration of the roma minority, these documents in practice mostly fail to be implemented. the czech republic is being criticized for discrimination against the roma in many areas of daily life, including housing, labour market, health care and education.[footnoteref:10] [10: see e/c.12/cze/co/2.] discrimination in the educational system is repeatedly being pointed out by the un committee on the rights of the child (disproportionate number of the roma children are sent to specialized schools with limited curriculum, which reduces their future career opportunities).[footnoteref:11] the discriminatory nature of the czech education system was also confirmed by the 2007 decision of the european court of human rights, d.h. and others v. the czech republic, where an indirect discrimination against the roma children in access to education was stated.[footnoteref:12] [11: crc/c/cze/co/3-4, [online]. available from: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/download.aspx?symbolno=crc%2fc%2fcze%2fco%2f3-4&lang=en subsection 61.] [12: the decision from 13-11-2007, application no. 57325/00. online, echr hudoc. available from: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-83256.] despite this framework, ida kelarová and her team attempt to challenge these common prejudices towards roma and through music and rich roma culture give roma children a chance to live a full life.[footnoteref:13] these aims of the roma choir project perfectly meet the aims of street law programmes,[footnoteref:14] so it therefore seemed only logical to join the team of ida kelarová and prepare for her young musicians several workshops aimed at increasing their legal literacy. [13: see: http://www.miret.cz/en/page.aspx?v=pagecollection-6.] [14: for more on clinical education and access to justice see: bloch, frank s. the global clinical movement: educating lawyers for social justice. new york: oxford university press, 2011.] using street law to work with minorities and marginalized groups in society is of course not our invention. in fact, street law has always used interactive methodologies to increase legal literacy of ordinary people and members of various minorities in society in particular [footnoteref:15] and managed to spread throughout the world, being now offered as a course at over one hundred law schools worldwide. [footnoteref:16] in some countries, it has even contributed to local changes[footnoteref:17] or even wider social changes, such as the renowned street law programme in south africa.[footnoteref:18] [15: as for improving the legal literacy of roma community, street law methods have been widely used for example in hungary. see: open society justice initiative: community-based paralegals: a practitioner´s guide. open society foundation, 2010. p. 28. available from: https://www.opensocietyfoundations.org/sites/default/files/paralegal-guide-20101208.pdf and tibbitts, f., roma paralegal training project: street law foundation, hungary, (case study prepared for open society justice initiative), 2005 (quoted from community-based paralegals: a practitioner´s guide).] [16: grimes, r. h., mcquoid-mason, d., o'brien, e. & zimmer, j., 2011, 'street law and social justice education' in fs bloch (ed.), the global clinical movement: educating lawyers for social justice. oxford university press, p.225.] [17: see e.g. case of improvement of a community in northern england. ibid, 236-7.] [18: ibid, p. 228.] in central and eastern european context, street law programmes and legal clinics in general had to deal with a legacy of authoritarian or totalitarian communist regimes.[footnoteref:19] despite that, a number of legal clinics including street law programmes were opened, incorporated into law school curricula and in some countries (such as poland, ukraine, russia and bulgaria) legal clinics even became compulsory or recommended as a part of national legal education.[footnoteref:20] [19: m. berbeck-rostas, a. gutnikov, b. namyslowska-gabrysiak. ‘clinical legal education in central and eastern europe: selected case studies’ in bloch, frank s. the global clinical movement: educating lawyers for social justice. new york: oxford university press, 2011, p. 53.] [20: ibid, pp. 55-67.] methodology of our workshops[footnoteref:21] [21: the described methodology corresponds to the criteria set for street law programmes in grimes, r. h., mcquoid-mason, d., o'brien, e. & zimmer, j., 2011, 'street law and social justice education', in f. s. bloch (ed.), the global clinical movement: educating lawyers for social justice. oxford university press, pp. 233-8.] didactically, to organize street law seminars at roma summer school was a real challenge. we had to prepare our programme for a group of forty to fifty teenagers aged ten to twenty, who were coming from several communities, diverse socio-economic backgrounds and from two different jurisdictions.[footnoteref:22] we knew only little about their previous knowledge of law, though we presumed that they had rarely come across introduction to law in their schools. we were also warned that some of the children from slovakia might not clearly understand our language (czech and slovak are fairly similar, though not identical languages) and that the average attention span of children will be rather low. to sum up, the group was rather large and extremely diverse. [22: czech and slovak republic are separate countries with their own legal system, although they share a common legal history from the period prior to 1993, when they together formed czechoslovakia.] our team was lucky in two regards. firstly, there were many of us. the team consisted of five current law students,[footnoteref:23] three recent graduates and one member of the faculty.[footnoteref:24] secondly, we were able to join the summer school a couple of days before our workshops began. that allowed us to learn more about the participants of the summer school, their prior experience with law, expectations from the legal workshops as well as their personal histories and it equally helped us to become part of the summer school before we officially took over the role of teachers and thus significantly eased the process of creating an atmosphere of common workshop not so strictly divided into “we the teachers” and “you the students”. [23: for them, it was a follow-up of a credit-bearing prague street law programme they took in previous semesters. for the division of street law programmes, see grimes, r. h., mcquoid-mason, d., o'brien, e. & zimmer, j. 2011, 'street law and social justice education', in f. s. bloch (ed.), the global clinical movement: educating lawyers for social justice. oxford university press, pp. 230-1.] [24: he is the head of the street law programme at prague law school as well as the leading author of this paper.] when reflecting on our preparation for the workshops and their realization at the summer school, there stand out several principles we tried to follow. since our experience might be beneficial for the readers, we will describe the principles as well as our experience with adhering to them. 1. build the content of the workshops on the experience of the roma participants. prior to the workshops, we met with the organizers of the summer school, identified several typical situations, in which participants most commonly come across legal rules (entering a shop and being closely observed by the security, being denied access to a public disco bar, being refused service in a local restaurant), and built our workshop sessions around these scenarios. moreover, we included in the workshops also examples of those common legal conducts in which there further exists a significant risk of discrimination (entering into a lease contract or a contract of employment, being forced to vacate an apartment, searching for a job). apart from these legal issues, we also prepared an activity aimed at improving their financial literacy, since financial difficulties are common among the roma and often lead to consequent legal difficulties. we did not limit ourselves to situations which the teenagers are likely to encounter in the near future (e.g. renting an apartment), but included situations that their parents, relatives or neighbours might need to solve as well. in this regard, we followed the mission of the whole summer school, which is to educate future roma elite, whose role will be to help not only themselves, but also the people around them. building the workshops around the concrete experience of the roma participants with legal rules brought one anticipated, but still troublesome finding. in their everyday lives, they come across legal rules in a far more explicit and harsh way than we do. whereas we typically realize concrete legal norms (apart from legal talk among lawyers or in legal classes) when we receive a speeding ticket, cross on the red light or forget to buy a public transport ticket and realize it only when on a bus, their contacts with the law include a number of different situations. they are being interrogated by the police or at least asked to show their id, they are being threatened by security that they will call police to inspect their backpacks, they are being summoned by the court as witnesses. encouraging them to share their experience with law during the workshops increased the authenticity of their content and motivation of the participants, but also placed us into an inconvenient position of those who represent the legal order that proves to be vastly unfair. we were those who – at least in the eyes of the participants – knew the legal rules, we were as white as the policemen, we enjoy benefits of the world that discriminates against them. however unpleasant this position was, we felt it was necessary not to hide from this reality and openly talk about our perception of the law. after all, we had neither designed the legal system nor were we uncritical advocates of it. we did, however, know more about the rights and duties that law gives to individual roles than the participants of the summer school and were better able to describe consequences of certain behaviours. in our experience it worked well to share our critical comments on the current way the legal system or its individual actors operate (e.g. racial behaviour of the police) and search together with the participants for the right way to handle the concrete situation, even though it might have involved an unfair policeman.[footnoteref:25] [25: we deliberately stressed that even though a police officer might be exceeding their powers, the only right solution at that moment is to peacefully accept their orders, note the number of the police officer and only later protest against their behaviour, since emotive or even violent defence against the acts of the police mostly only gives the police more reasons for applying harder means.] 2. be reasonable, not too ambitious. one might easily tend to overload the content with too much information and activities. after all, there are so many interesting things they should definitely hear from you! however understandable this approach is, it needs to be avoided, since this diverse group will most probably learn more slowly than regular school classes. moreover, as we encouraged the participants to share their own experience with law, that logically reduces the time for the teacher to introduce their own topics. the best strategy proved to be to identify only a few key elements in each session and be open to whatever else might happen during the session. sometimes the group asked for further information or more time to go deeper into a certain issue, sometimes it made more sense to listen to the stories of the participants and make others comment on each other’s experience. be it as it was too much ambition from a teacher clearly proved counterproductive. 3. most of the work needs to happen in small groups. recognising the difficulty of conducting a successful, interactive lesson even with a homogenous class that is used to working together, with a group as diverse as the one we encountered at the roma summer school, it made even more sense to divide the participants for most of the time into smaller groups of five to seven members. it was important to always choose the right pattern to create the groups; while for some activities, as for example those based on competition, it was necessary to create mixed groups with equal chances to win, for others it was better to group students of similar age. this proved to work especially well during the series of workshops, when the groups were subsequently attending six different activities on various legal topics. however, it also put higher demands on us, since these activities had to be adapted depending on the age of participants. we could not simply repeat the same workshop five times, since the group of young adults was able to explore the topics much deeper than a group of 14-year-old participants, to whom we still needed to make the topic useful and interesting, but in a much more simple way. 4. precise planning is a must. eventually, it was not impossible to coordinate nine teachers running six activities for thirty children at one moment. however, it really paid off to schedule everything accurately, even though we had to anticipate that the plan could change any minute due to external causes. since most of our workshops relied on precise timing, prior to each of them it was necessary to determine who will set and keep the precise time. for example when we were working with small groups in different locations, we always needed to set a precise time to be back in the main hall for the next part of the workshop, so we avoided the unpleasant situation where everybody would have been waiting for one last delayed group. it also turned out to be very beneficial to have one team member as a back-up for each workshop without a special task, supporting the others with their difficulties and keeping the time. cooperation between team members during the whole time was crucial, since we only had two days to carry out our workshops and we wanted to use our limited time effectively. 5. be prepared to deviate from the programme we prepared. although most of us were used to having their lesson plans carefully prepared and generally following them through, we were preparing ourselves for sudden changes that might happen at the summer school. and indeed, they did happen. most of all, they involved rapid changes in the given time (mostly shortening of the time for one particular session) and the amount of participants (after first activity, about ten of the youngest participants left the group, and later we lost some individuals due to illness). we therefore designed our sessions so that they were mostly broken into smaller activities which might be easily skipped or added. for example, we rotated small groups of participants among various law students running 25-minute sessions on different legal topics. the more of these sessions each group of participants attended the better, but it was very easy to skip one or two when there was no time. 6. always start from the very concrete situation. despite the general tendency of many lawyers to start almost every topic with a theoretical introduction, we tried our best to begin as concretely as possible. for example, straight after the beginning of one session we handed out several documents a court might send to teenagers (summons as a witness, order to pay money etc.) and let the students interpret them. or we started with the concrete problem (“you want to move into the flat of your boyfriend and terminate your current lease agreement. when can you legally do it?”), gave students necessary documents and let them work and then talked about the solutions they proposed. all of these activities worked well with our audience and brought sometimes abstract topics down-to-earth. activities that worked well with our participants based on the principles stated above, we put together several activities. some of them we knew from previous teaching, some we prepared especially for the roma summer school. these are the activities that worked well with our audience: 1. which labour contract to enter into? participants were given three versions of a labour contract and asked to choose the contract that was best for them. all three contracts contained several changes (number of working hours, the amount of salary, duties) and were thus easily distinguishable. participants worked in threes and their choice served as an opener for a discussion about a labour contract, its importance and necessary requirements. 2. which rights belong to me? participants were given a list of all of the human rights that the law guarantees them. after going through them and making sure everybody understood what each right means, they had to choose those rights that they believed that they were entitled to. legally, all rights on the paper belonged to them, but the difference between all the rights and those that they chose opened an inspirational space for discussion. 3. do i need to do anything? participants were given four documents a court or another official institution might send them (order to pay money, law suit, summons as a witness and a power of attorney) and had to decide a) who sent them the document, b) what the court or the other institution wanted from them, c) what would have happened if they had not reacted, and d) how many days they had for their reaction. despite difficult authentic legal language, many of them were able to find at least basic pieces of information in the document. moreover, we talked about alternative methods of making sense of any legal document, such as contacting an ngo that specializes in legal aid for socially disadvantaged clients. 4. role-plays from their lives. we chose two different scenarios, both of them based on everyday experience of some of the participants. in one of them, a pair of roma sits in a restaurant and is not served, although non-roma customers are welcomed and served by the waiter. the waiter acts on the order of the manager of the place, who explains his logic to the roma pair if they insist on calling him. in the other scenario, two roma friends go shopping and the whole time they are closely observed by one member of security and when leaving the shop, they are asked to show the content of their bags. unless they let the security search their bags, they would not be allowed to leave the shop and would be threatened that the police might be called. both scenarios worked really well, since the participants could pour their own experience, attitude and temperament into their roles and at the same time they were not too difficult to prepare and play. it served us as a good vehicle for talking about the feelings and goals of the characters in the stories and smoothly opened the topic of discrimination and legal powers of individual actors – a waiter, owner of the restaurant, security and the police. 5. extremes. an activity during which participants express their opinion on certain issues by placing themselves on the line in between two extremes (e.g. the degree to which they approve or disapprove of capital punishment). their position reveals their own unique view of the matter and makes them realize what they think about the issue. for us it was an important introductory activity which helped us to map the views and opinions of the participants (e.g. the frequency with which they experience discrimination, environment they come from and scope of their legal knowledge). it also worked as a good icebreaker, since all the organizers of the workshop played with the participants and revealed their own views. moreover, it was interesting to observe that in a number of questions roma and non-roma were nicely mixed in their replies. how was this street law different from street law in ordinary classes? – law teacher’s perspective despite having taught for seven years at different secondary schools and high schools in prague, teaching at roma summer school has been a new and unique experience for me. it was different from other teaching i am used to for various reasons. some of them were technical – there were no desks in the “classroom” (in fact, there was no classroom at all, we taught all over the location where the summer school was taking place – inside the building, in the corridors as well as in the garden), participants arrived from various cities from two countries and their familiarity with the legal language or even more elaborate common language was limited and i had to pay particular attention to the words i was using. i realized that i frequently use many fancy, long or sophisticated words that make my speech less understandable. apart from these technical differences, there were several more fundamental ones. firstly, the character of the roma’s prior experience with the law, the police and instances of discrimination were very different from my previous experience from classrooms. with a little bit of simplification i may say that up to now, i have been teaching law mostly to the members of the majority.[footnoteref:26] this time, i had to adopt a truly different perspective, which was both more demanding and humiliating for me. especially when in the process of preparing the workshop (e.g. searching for a theme of a role-play) i had to put myself in the place of somebody discriminated against and then meet the person face to face and hear that he truly experienced those horrible situations and feelings which i only imagined for the sake of designing my session. many times during those two days of workshops i realized how unproblematic my life is in some regards, purely because i am a member of the majority and not of (especially roma) ethnic minority. [26: i recall that there were several vietnamese in some of my classes in prague, but each time only one or two in one class.] secondly, i realized that teaching law to the roma minority felt different because law stands out for them as something even more important and dangerous than for the members of the majority in society. for most of the regular secondary school students, legal rules predominantly represent the way to understand the legal system and save time and money in the future, to avoid being fooled by deceitful dealers or unwilling workers in public offices. for the roma, knowledge of the law might actually save them from far more serious troubles, including jail. however, it might work the other way round, since knowledge of the law and your rights might put you in a more challenging or dangerous situation, e.g. when standing out against an oppressor or the person who discriminates against you, referring to your rights, calling for a legal action. there is indeed some bliss in the ignorance and bitterness in knowledge. thirdly, the experience of roma teenagers with law made me realize how complex and unclear the legal system is and how naive is the fiction that everybody has the duty to know the law.[footnoteref:27] even lawyers frequently lose themselves in the web of legal rules and their amendments and most of them never had to deal with any of the troubles members of the roma ethnic minority face on an everyday basis. translating legal duties into an understandable language seems the least help that lawyers can give lay people, especially from minorities as underdeveloped as the roma people in the czech and slovak republics. [27: this legal principle is often described by latin phrase ignorantia iuris not excusat.] how was this street law different from street law in ordinary classes? – law student’s perspective since i really enjoyed the “classical” prague street law programme, in which i taught at a good prague public school, i took the opportunity to be a member of the team teaching at the roma summer school, which was a rather different experience in many regards. the whole project was interesting and challenging from the very beginning and in the following paragraphs i would like to share my experience. to begin with, the whole planning process was extraordinary and also partly complicated by the structure and size of our team. during my street law practice i was only planning the lessons and teaching with one more law student. this time we had to harmonise the time, ideas and thoughts of nine people, which was not always easy. moreover, we did not all know each other prior to coming to slovakia (i have personally met most of the team members just twice before) and we were coming from different backgrounds. some of us had more experience with teaching than others; some of us were younger students as opposed to some of us who have already been practicing law for a few years. despite these handicaps, i am happy to conclude that the team work went very well. as unsure as i was about the final success of our workshops prior to coming to slovakia, i was eventually nicely surprised by the attitude of the participants of the summer school. they were all very friendly, polite, respectful, willing to cooperate and keen to learn. they were very open, which was both overwhelming (it brought special energy into the workshops) and puzzling (despite their openness, some of them tended not to admit that they were lost at the activity; we learned we needed to keep asking and making sure they were following the lesson). as easily as they got excited about some activity, just as easily they could lose interest in another activity, in which they were not successful. when lost, some of them blindly followed the others in their reactions. therefore, it proved to be effective to give individual roles to everybody, which they could not copy. i believe it is important to remember this experience for the future. what also proved to be efficient was a final reflection, when they were each supposed to say one thing they learned and one thing they would like to ask. then they had to present it in small groups and we the law students were answering their questions. that gave us another chance to find out, what they were interested in, while they were revising at the same time. next to sharing my legal knowledge with the participants of the summer school, i myself learned a lot. among others, the whole slovak experience made me think again about the role and functioning of the legal system and justice. while teaching about discrimination, which included listening to the personal stories of the participants, i finally got to understand in a more plastic and alarming way, which i would not, had i only been reading about it in textbooks. most of all, i got to reflect on how important it is to use legal tools to fight discrimination, both those which are available and those which could be created by new legislation. i had a chance to get to know these roma children personally and see how clever, talented and nice they were. however, based on the colour of their skin, living in our society is much harder for them than for me. we might feel proud of living in a liberal society, where human rights are guaranteed by constitutions and many international treaties, but at the same time even a sixteen-year-old participant of the summer school has already been discriminated against when applying for a part-time job only due to a different skin colour. moreover, other children are experiencing bullying by security while shopping for groceries, or have been refused service in a restaurant. when trying to give concrete pieces of advice to them on how to react in these situations, i realised how hard it actually is to fight discrimination, despite all the legal instruments, which are available on paper and studied at law schools, but have very unclear results in reality. clearly, the social dimension of this project is enormous, as the content of the workshops can be really beneficial for the participants of the summer school and it is only fair to give them a chance to familiarise themselves with the basics of law. therefore, i hope this project will continue in the future. i definitely used the basic didactical skills i learned in ordinary street law; on the other hand, i had to work in a larger team, which needed to be much more flexible, and in many regards i experienced a lot of new things, including the designing of the workshops and working with a diverse group of children, who were all members of a discriminated minority. it is hard to say who learned more from the workshops, whether us, or our students. conclusion – is it worth continuing street law at roma summer school? organizing a two-day long street law course for young roma musicians from the czech and slovak republics has certainly been a powerful and enriching experience for all involved. it helped to increase legal awareness of the summer school participants and to an extent showed them that to know the basics of law and to be able to apply them might help them in various everyday situations. it is only fair to give the underprivileged members of society a chance to acquire basic legal knowledge and skills. our aim was to make them realize that in many cases law is here to help and protect them and that following its rules is in many instances beneficial for them. it also exposed both the teacher and students from prague law school to a very different audience with different experience with law than they had typically taught before. it made us think carefully not only about activities and methods that would work the best with the participants of the summer school, but also – and arguably more importantly – about the law and the legal system we live in and we tend to take for granted, especially since in many situations it works for our benefit as members of the majority. while during ordinary classes it is far too easy to teach only about the way the legal system is and works, the slovak experience made us think much more deeply about how the law should work. we were forced to perceive law in a wider context and from the perspective of those experiencing discrimination and lacking proper legal education. legal workshops, which we experienced at the roma summer school, are in our view an experience that every law school student and teacher should have. not because it would necessarily turn them into a street law advocate, but because it enriches an often limited picture of law and our society that our educational system typically produces – which both of us recognised in ourselves. in this regard, the experiences of the teacher as well as of the student perfectly correspond. both of us equally believe that for all of the reasons provided in this text, it undoubtedly makes sense to organize similar workshops in the future – be it with a similar or different group of prague law school students. 148 practice report: clinic, the university and society law clinics and access to justice in kenya: bridging the legal divide yohana ouma and esther chege, strathmore university law school, kenya abstract despite the existence of law schools in kenya, there has been a low uptake of clinical legal education generally and the setting up of law clinics in particular. given the critical role that law clinics play in clinical legal education, the lack of well-established law clinics has negative implications of clinical legal education as well as the role that law schools, through law clinics, play in promoting access to justice. while the various law schools in kenya undertake various activities that ideally fall under a law clinic, there has been a lack of institutionalization of law clinics. this has in turn limited the scope end effectiveness of the law clinics both in terms of their efforts to promote access to justice and clinical legal education. the paper argues that in order for this to be rectified, there is need to institutionalise law clinics within the various law schools in the country. only then will they be more effective in promoting access to justice as well as clinical legal education. introduction the concept of access to justice has various connotations. in common parlance, it simply refers to the accessibility or otherwise of adjudication forums where individuals can have disputes between them resolved. at a more technical level, access to justice has many conceptions. it may refer to the ease with which participants in the various adjudication forums are able to understand both the substantive and procedural aspects of the law applied in resolving their disputes. access to justice may also refer to the extent to which disputants can afford the costs involved in having their disputes resolved at various adjudication forums. the above conceptions of access to justice are hardly exhaustive but only give a pointer to the breadth of the scope of access to justice. despite this breadth, law clinics in various countries in the world have continued to engage in various activities aimed at the realization of the ideal of access to justice in its various conceptions. this paper seeks to evaluate the role played by law clinics in the realization of the ideal of access to justice in kenya. the paper specifically uses the university of nairobi law clinic as a case study to illustrate the pivotal role that law clinics play in enabling individuals to access justice. the university of nairobi law clinic has been purposively selected as it is the oldest law clinic in the country. additionally, it has largely informed the clinical legal education programmes that have been established by other law schools in kenya. by using the university of nairobi law clinic as an example, the paper also explores the untapped potential that law clinics in kenya could harness in order to broaden and deepen their reach in promoting access to justice. the discussion in the paper is undertaken along four major thematic areas. part 1 of the paper operationalizes the concept of access to justice in the context of the paper. it also defines the legal divide in the context of kenya. part ii of the paper evaluates the legal framework governing law clinics in kenya. this entails a discussion of various statutes governing legal education in kenya and more specifically, the recently enacted legal aid act.[footnoteref:1] part iii of the paper examines the overarching aim of the paper which seeks to evaluate the role of law clinics in promoting access to justice. the discussion is undertaken through an overview of the law clinic programmes in various law schools in kenya and a case study of the students association of legal aid and research (salar), the law clinic at the university of nairobi, school of law. the discussion covers five main areas namely the inception of the clinic, its structure, the activities it undertakes and their impact on access to justice, the impact of the clinic on employability of students and the weaknesses/ challenges of the clinic. the university of nairobi law clinic has been purposively selected because it is the oldest law school in kenya. the university of nairobi law clinic is also the oldest law clinic in kenya. an evaluation of the clinic therefore provides a sound basis for gauging the impact of the clinic in the realisation of the ideal of access to justice as well as on the employability of students. the last part of the paper suggests a way forward for law clinics in kenya generally. [1: act no 16 of 2016.] part i: operationalising access to justice while the phrase ‘access to justice’ has various interpretations, it would be important to operationalise the phrase in the context of the paper. on 27th august 2010, the people of kenya bequeathed unto themselves a new governance charter namely the constitution of kenya 2010. one of the key hallmarks of the 2010 constitution is its provision for a robust and progressive bill of rights. the bill of rights in kenya’s constitution contains various provisions that have traditionally been aimed at ensuring access to justice for individuals. among others, these include; the fair trial rights and the rights of an accused person. however, the constitution goes on to further specifically provide for the right of access to justice. article 48 of the constitution provides that the state shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not limit access to justice. there are a number of deductions which can be made from this provision. while all kenyans are entitled to the right of access to justice, the constitution primarily tasks the state with ensuring access to justice for all persons. in other words, one interpretation of article 48 is that it is the responsibility of the state to take all measures to ensure that all kenyans are able to access justice. it is also arguable that article 48 takes cognisance of the fact that there exists a relationship between the cost of legal services and access to justice. to that extent, article 48 tasks the state with ensuring that all kenyans are able to access justice by taking steps to ensure that legal services can be accessed by all and that where any fee is required, such fee shall be reasonable and shall not impede access to justice. while the spirit of article 48 is commendable, there is a lot that needs to be done in order to ensure that kenyans of all walks of life are able to access justice. for instance, the article seemingly addresses access to justice from the point of the costs involved and not necessarily legal literacy and legal awareness. additionally, unlike other articles in the constitution, article 48 does not require the enacting of any act of parliament to give effect to it. there are other provisions in the constitution of kenya 2010 which address access to justice. article 159 of the constitution enumerates the principles which shall guide kenyan courts in exercising their judicial authority. these include: that justice shall be done to all irrespective of status, that justice shall not be delayed, that the courts shall promote alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolutions and that justice shall be administered without undue regard to procedural technicalities. while these principles are aimed at promoting access to justice, it is arguable that their focus is on the courts and not necessarily the events which lead up to the courts and ultimately have a bearing on access to justice by the individuals concerned. law clinics are often involved in both pre-court processes as well as the actual dispute resolution processes in the courts. accordingly, a definition of access to justice as applied to law clinics must be one that captures the role of law clinics during the events preceding the court process as well as the adjudication of the dispute(s) in the court. as such, this paper adopts the definition of access to justice that was formulated by the kenyan courts in the case of dry associates limited v capital markets authority and another.[footnoteref:2] in the case, the court while defining access to justice stated as follows: [2: petition no 328 of 2011, [2012] eklr, para 110.] access to justice is a broad concept that defies easy definition. it includes the enshrinement of rights in the law; awareness of and understanding of the law; easy availability of information pertinent to one’s rights; equal right to the protection of those rights by the law enforcement agencies; easy access to the justice system particularly the formal adjudicatory processes; availability of physical legal infrastructure; affordability of legal services; provision of a conducive environment within the judicial system; expeditious disposal of cases and enforcement of judicial decisions without delay.[footnoteref:3] [3: ibid.] this definition of access to justice is applicable in the context of this paper. the definition is rich because it captures both the events preceding the court process as well the court process itself. the definition is especially relevant with regard to law clinics. this is because the definition captures the various roles that law clinics play in the realisation of the ideal of access to justice. for instance, law clinics are involved in creating and enhancing awareness and understanding of the law and the constitutionally guaranteed rights. they are also involved in facilitating access to justice system and in making legal services affordable. accordingly, the parameters provided by the court in the dry associates limited case are used to evaluate the various activities undertaken by the university of nairobi law clinic in its efforts to promote access to justice. having operationalised access to justice in the context of the paper, it would also be important to discuss the legal divide in kenya. the ensuing section briefly undertakes this discussion. kenya has a population of about 42 million people, the majority of whom live on less than two dollars a day.[footnoteref:4] the effect of this is that a significant percentage of kenyans barely have enough resources to get by on a day to day basis. the economic disempowerment and disenfranchisement has in turn had ripple effects. these include limited access to education, even though elementary/primary level of education is free in all public primary schools. even when children are able to make it through the eighth year elementary primary education level, many of them do not pursue their education further due to limited resources or the unavailability of resources altogether. this in turn limits the employment prospects of such individuals and in the process perpetuates the dreaded cycle of poverty. for this category of individuals, access to justice is often an unrealistic hope. they not only lack the financial resources to access the courts, but also have low or no legal literacy or awareness at all. as a result, when they suffer injustice, they are often left to their own devices, usually with little or no knowledge of where to seek help or even when able to seek help, they are unable to follow through the processes required so that they can ultimately have the injustices redressed. [4: see usaid website, <http://www.state.gov/documents/organization/159172.pdf> accessed 7 july 2016.] on the other hand, individuals who have the financial ability are often able to afford legal services and thus are able to access the adjudication forums and follow through the requisite process until the injustices they suffered are redressed. put simply, the state of access to justice in kenya is characterised by a legal divide between the haves and the have nots. as is illustrated in the case study of the university of nairobi law clinic, law clinics have played and continue to play a critical role in bridging this legal divide. it is noteworthy that at the heart of the legal divide in kenya is the difference in availability and possession of resources between the haves and the have nots. law clinics may not necessarily address the other factors that limit access to justice by the have nots. however, they can and do directly play a role in bridging the legal divide through undertaking various activities that are often solely aimed at promoting access to justice. before embarking on the case study to illustrate how law clinics play this role in kenya, it would be important to examine the legal framework governing law clinics in kenya. the next section of the paper undertakes this discussion. part ii: the legal framework governing law clinics in kenya for a long time, there has been no specific legislation governing law clinics in kenya. this position changed recently with the enactment of the legal aid act 2016,[footnoteref:5] which although generally focused on legal aid, has numerous provisions addressing law clinics. this is due to the fact that law clinics are key players in providing legal aid in kenya. it is important to state that before the enactment of the legal aid act 2016, law clinics of the various law schools in kenya were not governed by any act of parliament. the legal aid act sought to address this by providing some requirements which will be applicable to all law clinics. it is also noteworthy that even though legal aid and access to justice have a direct correlation with each other, the two are not necessarily synonymous with each other. legal aid is a facet of access to justice. [5: act no 16 of 2016.] law clinics are at the heart of clinical legal education. accordingly, a discussion of the legal framework governing law clinics in kenya would of necessity entail an examination of the legislation governing legal education in kenya. the examination is done with a view to identifying the extent, if any, to which the legal framework governing legal education in kenya provides for clinic legal education and as such, indirectly provide for law clinics. the paper undertakes this discussion first and subsequently reviews the legal aid act. there are two main statutes that govern legal education in kenya namely the legal education act[footnoteref:6] and the kenya school of law act.[footnoteref:7] the preamble of the legal education act states that it is intended to provide for the establishment of the council of legal education, the establishment of the legal education appeals tribunal and the regulation and licensing of legal education providers and for connected purposes. it is arguable that from this preamble, the focus of the act is on the institutions rather than the content of legal education itself. as part of regulating institutions that provide legal education, the act requires universities that offer undergraduate law degree programmes to offer certain core courses which include: legal research, law of torts, law of contract, legal systems and methods, criminal law, family law and succession, law of evidence, commercial law, law of business associations, administrative law, constitutional law, jurisprudence, equity and the law of trusts, property law, public international law and labour law.[footnoteref:8] all these are primarily theoretical courses which involve attending lectures and taking examinations at the end of the semester. as evidenced by the list above, law schools in kenya are under no obligation to develop clinical legal education programmes. [6: act no 27 of 2012.] [7: act no 26 of 2012.] [8: section 23(1) as read with the second schedule to the legal education act 2012.] as had already been stated earlier, establishment of law clinics is one of the main ways of developing and delivering clinical legal education. a resultant effect of the exclusion of clinical legal education as one of the mandatory modules that must be offered in law schools in kenya is that clinical legal education is given little, if any priority, by many law schools. this is usually manifested by the lack of law clinics in some law schools or even where they exist, they lack the requisite support and recognition from the law school. perhaps the scenario would have been different if the legal education act had included clinical legal education as one of the modules/programmes that must be offered by law schools in kenya. the kenya school of law act, act no 26 of 2012 the main purpose of the kenya school of law act is to provide for the establishment of the kenya school of law which is primarily tasked with offering a one and half year’s advocates’ training programme that prepares law graduates from universities to become advocates of the high court of kenya. generally, one can only be admitted to the roll of advocates in kenya after completing both an undergraduate law degree and the one and half year training at the kenya school of law. the act empowers the board of the school to determine and publish in the kenya gazette the academic programmes in the school and the course units.[footnoteref:9] over the years, clinical legal education has not been incorporated as one of the academic programmes at the school. however, the school undertakes, as extra-curricular activities, various initiatives which fall under the scope of clinical legal education. the main activity is legal aid clinics that are held in various prisons across the country.[footnoteref:10] participation in the prison legal aid clinics is open to all students who volunteer to take part in the clinics. the upshot of the foregoing discussion is that the ‘law clinic’ programme at the kenya school of law can hardly be said to have been institutionalised. at best, it can only be termed as corporate social responsibility by the school. this in itself is not a criticism but a contention that perhaps with the institutionalisation of the clinic, it would be able to play a bigger role in promoting the ideal of access to justice. [9: section 18 of the kenya school of law act.] [10: see kenya school of law website, <http://www.ksl.ac.ke/index.php/academic-programmes-course-offerings/advocates-training-programme?start=5> accessed 7 july 2016.] the legal aid act, no 6 of 2016 the legal aid was enacted in 2016 as part of the efforts to promote access to justice in kenya through the provision of legal aid. the act has a number of provisions which directly affect the law clinics of various law schools in kenya. the preamble to the legal aid act notes that one of the reasons for its enactment is to give effect to article 48 of the constitution. it further broadly defines legal aid to inter alia, include: legal advice, legal representation, creating awareness through the provision of legal information and law related information and recommending law reform and undertaking advocacy work on behalf of the community. this definition encompasses most of the activities that are undertaken by law clinics in various law schools in the country. it is therefore a welcome development that the activities which are undertaken by the various law clinics have been given statutory recognition under the act. the act covers law school clinics under legal aid providers. it specifically provides that ‘legal aid provider’ among others means a university or other institution operating legal aid clinics.[footnoteref:11] the act also establishes the national legal aid service whose mandate is generally to broaden and deepen legal aid initiatives and in the process, promote access to justice.[footnoteref:12] the national legal aid service is also tasked with liaising with the council of legal education in the development of programmes for legal aid education.[footnoteref:13] additionally, the service has the mandate to promote and supervise the establishment and working of legal aid services in universities, colleges and other institutions.[footnoteref:14] these provisions may significantly alter the landscape as far as law clinics and clinical legal education in kenya is concerned. this assertion is informed by a number of reasons. first, unlike previously where law clinics of various universities were established and operated independently of each other and had no external oversight, under the act, the national aid service will exercise supervisory powers over the various law school clinics. secondly, the act arguably contemplates that for legal aid to take root in the country, there is need for a more robust programme of clinical legal education in the various universities that offer legal training. accordingly, the service is tasked with the development of programmes for legal aid education. it is submitted that if these programmes are well developed, law schools in kenya may well be on course to reaching the heights of clinical legal education that have been attained by law schools in the world which have reputable clinical legal education programmes. [11: section 2 of the legal aid act.] [12: section 5 of the legal aid act.] [13: section 7 of the legal aid act.] [14: section 7 of the legal aid act.] one of the key hallmarks of the act is its provision for a legal aid fund.[footnoteref:15] the monies of the fund may be applied in meeting the expenses of legal aid providers in providing services.[footnoteref:16] this is a welcome development particularly due to the fact that inadequate or a complete lack of resources has hindered the programmes of many law clinics. if the legal aid fund is well utilised, law clinics in kenya will be better placed to be more effective in providing legal aid. the fund may enable them attain some level of self-dependency and sufficiency as opposed to the present situation where they are forced to adopt a primarily collaborative approach in the provision of legal aid services. while the collaborative approach is not necessarily bad, it has had the effect of limiting the scope of the activities of the law clinics. this is because often, it is the partners of the law clinics who determine the kind of programmes the law clinic will be involved in. one can only hope that in disbursing monies to law clinics, the national legal aid service will not attach very stringent conditions that will have the effect of limiting the scope of services provided by law clinics. however, it is also important to state that the monies of the fund will not be restricted to only law school clinics but will also be disbursed to other legal aid providers. as such, it remains to be seen what portion of the fund will be allocated to the law clinics of various law schools in the country. [15: see generally part v of the act.] [16: section 30 of the legal aid act.] another key feature of the act is the requirement for accreditation of legal aid providers.[footnoteref:17] unlike previously where law clinics in various law schools were able to provide legal aid services without the requirement of being licensed by any authority, under the legal aid act 2016, institutions and organisations will only provide legal aid services after they have been accredited by the national legal aid service. the service is also empowered to develop the accreditation criteria which it will use in accrediting various legal aid providers. accreditation may have both negative and positive effects. the positive effect may flow from the fact that recipients of legal aid from the various legal aid providers will be in a position to ascertain that they are receiving legal aid from legitimate and duly accredited legal aid providers. this will turn enhance the confidence of the public in the legal aid providers. however, from previous experience of various accreditation processes in kenya, there are two key challenges that may flow from the accreditation requirement. [17: see generally part viii of the legal aid act. ] first is the fact that often, the fees for accreditation are usually very steep. in the event that the national legal aid service sets the fees for accreditation of legal education providers at unusually high levels, the service will be going against the principal reason for which it was established, namely to promote access to justice through broadening and deepening legal aid in kenya. high accreditation fees may serve as an entry barrier for law school clinics which seek to provide legal aid services. this is due to the limited resources that most law schools in the country have. unless law clinics are a key priority for law schools in the country, it is arguable that unreasonably high accreditation fees may lead to the collapse of the nascent law clinics in various law schools in kenya. the second challenge that flows from the accreditation requirements is that often the accreditation process takes a long time. this may in turn limit or altogether stop the activities of the law clinics as they await accreditation. limitation of the activities of law clinics will in turn curtail their role in promoting access to justice. as such, it is imperative that the accreditation requirements and process is handled carefully so as to encourage more players, and particularly law schools to establish law clinics and promote clinical legal education. if not handled carefully, the accreditation requirements and process may have the opposite effect of limiting access to justice and eroding the little gains that have been made in promoting access to justice through provision of legal aid. overall, the enactment of the legal aid act is a welcome development. this is because the act is in keeping with the ideal of promoting access to justice as enshrined in article 48 of the constitution. however, it remains to be seen whether the manner of implementation of the act will ultimately promote access to justice. having defined access to justice, the legal divide and discussed the legal framework governing law clinics in kenya, the next section of the paper gives a brief overview of the clinical legal education programmes of various law schools in kenya. this is then followed by the case study of salar, the law clinic at the university of nairobi school of law. part iii: law clinics and access to justice in kenya: overview of various clinical legal education programmes in kenya according to the council of legal education of kenya, there are eight accredited law schools in kenya.[footnoteref:18] it is noteworthy that of the eight, seven were established from the year 2012. two other law schools which are not in the current list of accredited law schools were established in the pre-2012 period. these are the moi university law school established in 1994 and the catholic university of eastern africa law school established in 2005. accordingly, in terms of years of existence, the university of nairobi law school is the oldest, followed by the moi university law school and the catholic university of eastern africa law school. [18: see council of legal education website, <http://www.cle.or.ke/status-of-universities/> accessed 10 october 2016.] of the three law schools that were established before the year 2012, only the university of nairobi school of law and the moi university school of law have law clinics. the catholic university of eastern africa law school has no law clinic per se but from time to time undertakes various activities which ideally fall under the ambit of a law clinic. this includes organizing law clinics in prisons and legal awareness and sensitisation campaigns. most of the law schools established in the post 2012 period have adopted a similar approach where they do not have law clinics but instead organize various activities that ideally fall under the ambit of a law clinic. for instance, at the kabarak university school of law, the law clinic is one of the programmes that is run by the law students’ association, the kabarak university law students association (kulsa).[footnoteref:19] the main activities undertaken in the programme include holding law clinics in prisons and in the environs of the law school. [19: see <http://law.kabarak.ac.ke/kulsaprogrammes.php> accessed 10 october 2016.] at the kenyatta university school of law, there is no established law clinic but there are various activities which fall under the ambit of a law clinic.[footnoteref:20] the main activity is the public interest and awareness programme.[footnoteref:21] this is a student led initiative which entails hosting law clinics in various parts of the country.[footnoteref:22] it is, however, important to note that while the programme is student led, various non-governmental organisations (ngos) play a key role to ensure the successful realisation of the programme. it is more of a partnership between the law school and the various ngos rather than an independent, self-sustaining programme run by the law school. [20: see <http://law.ku.ac.ke/index.php/component/content/article/97-school-news/169-legal-aid-awareness> accessed 10 october 2016.] [21: ibid.] [22: ibid.] moi university law school is perhaps the only law school in kenya which right from establishment, sought to institutionalise clinical legal education. accordingly, the legal aid department is one of the four departments in the law school.[footnoteref:23] the school emphasizes a clinical approach to learning which is anchored in the moi university legal aid clinic (mulac).[footnoteref:24] the clinical legal education is delivered through simulation and live-client representation of indigent clients with a focus on children matters. however, though this is the ideal model that the paper advocates for, it was also heavily dependent on an external advocate who was the key resource person for the clinic.[footnoteref:25] once the advocate left the clinic in 2014, all the activities of the clinic ground to a halt.[footnoteref:26] this points to the fact that although the clinic was conceptualised as a self-sustaining clinic, its success was largely dependent on the availability of funds to enable it retain staff such as advocates who would take up deserving matters. [23: see < https://law.mu.ac.ke/index.php/departments/legal-aid-clinic#the-department-and-the-school> accessed 10 october 2016.] [24: ibid.] [25: interview with kevin koome, an immediate former student of the moi university school of law who graduated in the year 2015. koome was a student at moi university law school when the clinic was still active and subsequently during the period of its decline.] [26: ibid.] strathmore law school is also in the process of setting up its law clinic. during its four years of existence, it has undertaken various clinic activities in collaboration with various ngos. egerton university law school is barely a year old. at present, it does not have a law clinic. having provided a brief overview of the various approaches to clinical legal education generally and law clinics in particular in law schools in kenya, the next session delves into an in depth discussion of the law clinic at the university of nairobi law school where the author served as the student chairperson during the academic year 2014-2015. a case study of the students association for legal aid and research (salar) the students association for legal aid and research (salar) is the law clinic at the university of nairobi, school of law. the university of nairobi, school of law was established in 1970 but it was not until 2002 that the law clinic was established. salar was conceptualised and birthed through the efforts of ms. joy asiema, a law lecturer at the university of nairobi and the current patron of the association and prof. loiuse mckinney, then of the milton kramer law clinic at case university school of law.[footnoteref:27] right from the outset, salar was not institutionalised as one of the key centres of the university of nairobi school of law. on the contrary, it was founded as club or society where students could undertake extra-curricular activities through provision of legal aid services. accordingly, flowing from the fact that it is an association/club, membership of salar is voluntary and open to all law students at the university of nairobi upon payment of a membership fee of kshs 200 (approximately 2 usd). the fee is payable each semester. during the author’s time as the chairperson of the association, salar had a membership of about 200 students from a student population of 1500 students at the university of nairobi, school of law. the funds raised from the membership fees are primarily used to run the activities of the association. it is arguable that the lack of institutionalisation is what led to the mixed fortunes of salar over the years with regards to its efforts to promote access to justice. [27: see salar website, <http://www.uonsalar.org/web/research_publications/salar%20profile%20(2).pdf> accessed 7 july 2016.] salar has four principal objectives namely: to provide free legal services to persons who cannot afford to pay for legal services, to inculcate a public interest lawyering spirit in law students and build on that spirit as a basis for the creation of responsible legal professionals, to promote and undertake legal research as a key component of legal education and lastly, to establish and develop links with governmental institutions, non-governmental organisations and lawyers with the aim of promoting and expanding the scope of social justice.[footnoteref:28] salar lists its key areas of legal assistance to include: matrimonial disputes and children matters, human rights violations, land disputes, succession and inheritance and employment and labour disputes. from the author’s experience of three years as a member of salar and one year as the chairperson of the association, the areas of legal assistance by salar were largely determined by the partner organisations which collaborated with salar. the discussion on this is revisited in later sections of the paper. [28: ibid. ] salar has a three tier organisational structure. at helm of salar’s organisational structure is the supervisory board. the supervisory board is composed of at least three members but not more than five members of faculty of the university of nairobi, school of law and/or practising advocates. the function of the of the supervisory board is limited to playing an advisory role in terms of ensuring that all the activities of the association are carried out in accordance with the constitution of the association as well the custom and practice of the legal profession. the supervisory board is also tasked with ensuring that the activities and policies of the association do not violate the laws of kenya. below the supervisory board is the steering committee. this is a body of students that is tasked with running the day to day activities of the association. the steering committee is comprised of six members namely; the chairperson, the vice-chairperson, the secretary-general, the organising secretary, the treasurer and the librarian. lastly, are the members of the association who complete the last part of the three tier organisational structure. there are a number of observations that can be made from the above discussion on the profile of salar especially with regard to its efforts to promote access to justice. first is the fact that it is not properly institutionalised within the structures of the school of law and is considered a students’ club or society which students form to engage in extra-curricular activities. put differently, while salar’s activities fall under the ambit of clinical legal education, the university of nairobi school of law just like most law schools in kenya is yet to fully institutionalise clinical legal education. second, it is noteworthy that the association relies on membership fees to run its activities. the funds raised from membership fees are hardly ever adequate to enable the association undertake the various activities aimed at promoting access to justice. consequently, the association primarily relies on activities it undertakes in collaboration with various partners so as to promote the ideal of access to justice. third and perhaps more worrying, the fact that the law clinic was founded almost over 30 years after the establishment of the law school arguably points to the low priority accorded to law clinics and clinical legal education in kenya. however, it is commendable that after the establishment of salar, various universities that have since established law schools have not taken such a long duration to establish law clinics or to come up with various activities that usually fall under the ambit of a law clinic. the lack of institutionalisation of law clinics, however, is still a persisting problem. activities of salar in its efforts to promote access to justice despite the various shortcomings, salar has over the years undertaken various activities that are aimed at promoting access to justice. it is, however, important to note that most of these activities have been undertaken in collaboration with partners rather than on salar’s own initiative. a number of activities could be used illustratively. salar has a long running partnership with kituo cha sheria, a local ngo involved in providing free legal services to the unserved and the underserved. kituo cha sheria usually organises monthly legal aid clinics in which salar members participate in giving free legal aid to members of the public. cases which require to be taken to court are subsequently taken up by kituo cha sheria and the students provide research assistance during the subsistence of the case. kituo cha sheria also organises legal awareness campaigns in the informal settlements and slums. salar members are usually heavily involved in these legal awareness and sensitisation programmes. in late 2014 and early 2015, salar, through a partnership with the kenya human rights commission (khrc), a local ngo, held legal aid clinics in ten out of the 47 counties in kenya. kenya human rights commission handled all the logistics for the clinics while salar’s members conducted the actual clinics in the various counties. the students were always accompanied by personnel from kenya human rights commission who would oversee their work. kenya human rights commission would then take up the deserving cases where the concerned individuals required legal assistance to initiate judicial proceedings. salar also has a long running partnership with the kenya human rights commission where a number of its members attend and participate in the legal aid clinics that are held at the kenya human rights commission offices at the last saturday of every month. salar also has a number of similar partnerships with other organisations that seek to promote access to justice. some of the organisations include amnesty international-kenya chapter, the international justice mission-kenya chapter, the kenya red cross society among others. the upshot of the foregoing is that salar has primarily relied on a partnership model to promote access to justice. this has had its inherent weaknesses but has nevertheless, not deterred the clinic from having an impact on access to justice in kenya as well as on the members of the clinic itself. the impact of the clinic the discussion on the impact of the clinic is undertaken under two broad strands namely the impact of the clinic on access to justice generally and the impact of the clinic on the employability of students. through various collaborations, salar has been able to play a small but significant role in helping realise the idea of access to justice. this has been particularly through the legal awareness and sensitisation campaigns through which the association has been able to reach out to large segments of the population, especially the unserved and the underserved. additionally, during the clinics, there were numerous cases where the matters presented by members of the public were resolved through the advice given at clinics and did not require to be taken up to court. salar has also played a key role in enabling partner organisations reach and provide free legal services to members of the public. membership and participation in salar’s activities has also played a key role in enhancing the employability of its members. a number of examples could be used illustratively. the author’s involvement in the activities of the clinic was instrumental in his getting employment at the strathmore university law school immediately after completing his undergraduate studies at the university of nairobi school of law. similarly, one of the leading law firms in kenya directly got in touch with the leadership of salar and asked for applications for students who would be interested to work in the law firm. the process culminated in the employment of one member of salar in the leading law firm, leading to her completing her studies while already with a job in hand. the kenya human rights commission, (khrc), has also consistently given preference to salar members when conducting its recruitment. due to the lack of proper records on the career path of salar members, it is difficult to exactly tell how many of them have been able to have a competitive edge in recruitment processes of various organisations, both governmental and non-governmental. however, anecdotal evidence points to a strong correlation between membership and participation in the law clinic’s activities and increased chances of employability. the last part of paper critiques the salar model of the clinic and offers suggestions on the way forward. part iv: towards greater autonomy/ a self-sustaining model while salar and indeed other law clinics in kenya have been able to play a significant role in promoting access to justice, it is arguable that for them to have a greater impact, the law clinics must increase their autonomy and avoid solely relying on partnerships with other like-minded organisations. where this happens, then salar as well as other law clinics will be in a position to host their own internal walk in clinics within the law schools rather than solely relying on partners. consequently, the law clinics will be in a position to reach more people and provide the much sought legal aid services that many cannot afford. however, for the greater autonomy to be successfully realised, there is need fully institutionalise law clinics within the set-up of law schools in kenya rather than having them as part of clubs and societies which students join to engage in extra-curricular activities during their free time. law clinics are at the heart of clinical legal education. the importance of clinical legal education to a lawyer cannot be understated. consequently, for there to be robust law clinics in kenya as well a robust clinical legal education programme, there is need for a paradigm shift to move away from the current model to a model where law clinics are fully institutionalised and clinical legal education forms part and parcel of the legal education of law students. conclusion from the preceding discussions, the paper concludes that while law clinics in kenya, as illustrated by the example of salar, play a significant role in the promoting access to justice, there is more that needs to be done to enable law clinics in kenya claim their rightful position in the promotion of access to justice. the paper concludes that a sure first step in the realisation of this goal may well lie in the institutionalisation of law clinics. the challenge is, therefore, on the various law schools to take a leading and active role in ensuring that they establish, and where already established, they institutionalise their law clinics and give them the requisite support to enable them effectively play their role of promoting access to justice. 107 special issue: european network for clinical legal education 6th conference clinical legal education in malta: learning from experience and identifying the challenges david e. zammit (ll.d. ph.d. durham university) alina kislova (international master in adult education for social change) abstract this paper introduces the reader to clinical legal education in malta by: 1) outlining how the internal hybridity of the maltese legal system and the juxtaposition of english and continental models in maltese legal education have influenced the development of the law clinic at the university of malta; 2) describing how the maltese clinical model operates currently; 3) reviewing the experiences of students involved in clinical work. delineating the maltese legal system situated some 81 km south of sicily and nearly 300 km to the north of libya in the middle of the mediterranean sea and with a population of less than 500,000 individuals concentrated in a geographical area of a little over 300 square km, the republic of malta is nevertheless a self-governing state with its own distinct legal system and university and is simultaneously a member of the european union and the british commonwealth. its legal system is technically considered as a mixed legal system; reflecting its long colonial history; in which the maltese archipelago was governed for close to three hundred years by the hospitaller knights of saint john and subsequently came into the hands of the british; who governed it between 1800 and 1964 (donlan s. p., ando’ b., zammit d. 2012, pp.181-191). the maltese legal system bears the traces of its colonial past in various ways; not least in the way its constitution conforms to the westminster model and in the persistence of a narrow positivist way of interpreting human rights legislation which tends to avoid invoking human dignity as an underlying free-standing value (zammit, d. & muscat m. 2019, pp.25-29) the language of the laws is english and maltese; while court practice and judgments are written almost exclusively in a dialect of maltese which relies heavily on italian terminology; testifying to the reliance upon italian as the official language of the maltese courts and legislation until the mid-1930’s. british colonial rule also introduced a break with the civilian legal tradition insofar as public law in general is concerned and maltese public law is now anchored within the british common law; whereas private law continues to be anchored in the civilian tradition; particularly due to the existence of five codifications, dating back to the colonial period: the maltese civil code, criminal code, commercial code, code of organisation and civil procedure and the code of criminal procedure (andò, aquilina, scerri-diacono & zammit, 2012, p.532). this notwithstanding, malta’s entry into the eu in 2004 and its development of a large financial services industry, e-gaming and ship registration facilities have further reinforced the common law influence and commercial and i.t. law is heavily reliant upon common law sources. the maltese legal system is thus characterized by a high degree of internal hybridity; expressed very clearly in an overarching division between private law; primarily based upon the civilian legal tradition and a public law which reflects common law. unlike other small jurisdictions, the level of mixing within the maltese system is so high that it is impossible to identify a single ‘big brother’ jurisdiction; with a hegemonic role in shaping maltese law. indeed: “an inclination towards one or another external cultural and legal influences—britain or italian—has a long genealogy in the context of maltese state building.” (donlan s. p., marrani d., twomey m. & zammit d.e., 2017, p.193) ultimately it was only eu membership which helped the maltese population and its legal class come to terms with and accept the various cultural and legal influences which have shaped its legal system: “this was achieved in 2004. membership is seen, consistent with this history, as compatible with the exercise of maltese sovereignty. moreover, eu membership reconciled the various loyalties—british, italian, and maltese—adhered to in malta. as a result, it was possible to be all three at once.” (donlan s. p., marrani d., twomey m. & zammit d.e., 2017, p.194) the way in which maltese jurists have responded to these various influences has been by developing a view of the legal system as: “composed of a number of clearly distinguished compartments” (ganado, j. 1996, p. 247). this approach is combined with a ‘pragmatic purism” (andò, aquilina, scerri-diacono & zammit, 2012, p.563-568) on their part; which while accepting a high degree of mixing at the level of the system as a whole; nevertheless insists that within each compartment there must be cultural consistency between sources and interpretation. situating the law clinic within maltese legal education in malta, legal education has long represented a compromise between the english model -which envisages a process where the undergraduate study of law at university is followed by professional legal study at one of the inns of courtand the continental model; which traditionally envisages the postgraduate study of law at university as the next step in the formation of an advocate following undergraduate study. until the early 1990’s, the ll.d. degree -awarded after 6 years of undergraduate study at the university of malta and incorporating the completion of a final dissertationwas the primary requirement which needed to be satisfied in order to be granted the warrant allowing its holder to practice the profession of advocate in malta. a pass in the warrant exam organized by the state following a year of professional apprenticeship after graduating was the secondary prerequisite. while this might appear to come close to the continental law model, in practice it diverges significantly from it because: (1) english is the language of university teaching of law, meaning that english language texts are becoming the primary medium through which important legal concepts are transmitted, (2) doctrinal texts on maltese law are few and often outdated; meaning that the study of court judgments written in the maltese language often takes the place of a more purely scholarly study of academic texts (donlan s. p., ando’ b., zammit d., pp.194-195), (3) maltese law-teaching was until recently almost completely dominated by part-timers, who are practicing advocates and who tend to present the process of 'becoming' a lawyer as: “consisting of two phases. in the first six years, the university degree is obtained. in the following two to three year period of 'prattika' (i.e. practice) a law graduate attaches himself to an established lawyer as a glorified office-boy. in return for helping with the more mundane tasks of lawyering, he gains the opportunity to observe his lawyer-patron advising clients, drafting judicial acts and engaging in litigation in court. a rigid demarcation is maintained between the two phases and only those law graduates who undergo the second phase begin to earn the right to be considered as 'real' lawyers by members of the profession. law students are constantly told that 'il-prattika kollox' (legal practice is what counts), and that: 'meta tohrog mil-universita tkun ghadek ma taf xejn' (when you emerge from university, you as yet know nothing)” (zammit, d. 1993, pp.60-61). the dominance of practitioners in maltese law-teaching thus combines with the tendency to view the jurisdiction in compartmentalized terms; resulting in a rigid opposition between ‘theory’ and ‘practice’; in which the former is devalued, while the latter is valorized. this compartmentalized approach is also reflected in the syllabus, with subjects like civil law taught primarily through the medium of maltese jurisprudence and italian textbooks, side by side with subjects like constitutional law, taught primarily through english language books. the dominance of practitioners in law teaching, the lack of a single dominant ‘big brother’ jurisdiction and the broad and eclectic variety of foreign sources which are tapped in the process of constructing the syllabus for maltese legal education also means that: “educators do not perceive legal education as the wholesale adoption of a particular pedagogical model rooted in a homogenous understanding of law characterising a single dominant (external) legal tradition. instead, they understand maltese legal education as the elaboration of an indigenous model through selective borrowing from various sources, feeling empowered to draw selectively on foreign models.” (donlan s. p., marrani d., twomey m. & zammit d.e., 2017, p.196) developing the maltese law clinic the maltese law clinic developed in a way which adapted and tried to respond to the above noted characteristics of maltese legal education. the initial impetus for institutional change in law teaching came about as a result of increased pressure from university authorities to rationalize the structure of the law course. this pressure was itself partly justified in terms of the need to align legal education with the bologna process; by ensuring that the undergraduate teaching of law would not take more than three or four years and that the overall duration of the course would not extend beyond five years in all. at the same time, the creative syncretic response of the law faculty reveals that they saw themselves as “actors of legal globalization and not its victims.” (donlan s. p., marrani d., twomey m. & zammit d.e., 2017, p.196) from the 2017/18 academic year onwards, the overall duration of law studies was reduced to five years; consisting of a four-year long undergraduate ll.b. degree meant to cover all the substantive law that a ‘general practitioner’ advocate needs to know followed by a one-year long masters course in advocacy. the masters in advocacy was initially envisaged as a course which combines the academic teaching of procedural law and other practice-related academic subjects, with a new 30-credit study unit called ‘professional practice’ and consisting of lectures in advocacy skills, professional ethics and related practical skills; together with role plays and simulations of client interviews, moot courts and other real practical scenarios. however, as from the 2018/19 academic year, all law students were also expected to assist real clients by means of supervised pro bono work in the framework of ‘the law clinic’. this institution had been formally set up around three years previously by means of a memorandum signed by the rector of the university, the president of the chamber of advocates (the maltese bar association) and is hosted by the cottonera resource centre; a branch of the university which seeks to bring it closer to people of the cottonera region; a region characterized by relative socio-economic deprivation compared to other parts of malta. through the development of the postgraduate masters in advocacy course, maltese legal education continued to reflect continental trends since students are required to study law at both undergraduate and postgraduate levels in order to qualify academically to practice as advocates. at the same time, by inserting the mandatory requirement that all law students undertake supervised law practice in the context of the law clinic as an integral part of this masters, the course as a whole was also brought closer to english legal education inasmuch as the requirement of an additional period of professional legal study was also integrated within the university postgraduate course itself. key characteristics of the maltese clinical model must also be understood as an adaptive response to the specific challenges presented by maltese legal education. in particular the categorical division between theory and practice poses particular problems to the law clinic, which attempts to link theory and practice together in a mutually beneficial way. the maltese clinical model the law clinic at the university of malta is a free, student-led legal service in malta, which started to operate in 2007. as its name implies, from a pedagogical perspective, the law clinic falls under the broad umbrella of the faculty of laws at the university of malta (furtheruom) based at the cottenerа resource center. the clinic has two main objectives: it serves as a channel through which marginalized categories may obtain access to justice, learn about their rights and seek remedies to rectify the injustices that they suffer from. and since the main providers of free legal service to the vulnerable population are students, the clinic also serves as a learning platform raising professionals that are more socially-conscious and socially oriented. by making the knowledge and expertise available pro bono to people whose access to justice is limited, law clinic places students, who are pursuing a law degree, in touch with the central meaning of the legal profession which is the vocation to pursue justice through law. the law clinic at the uom is a part of global movement, which responds to the need for incorporating experiential and transformative learning into legal education in the higher education setting. it embodies the practical dimension of the legal course that helps the students to perceive the law differently by working on real cases under the supervision of qualified practicing advocates the members of the chamber of advocates. from the standpoint of its academic structure, the law clinic operates within the advocacy skills component of the professional practice course, which aims to train students in using the skills and methods required in order to assist clients; particularly through helping them prepare and present a legal case. structurally the course also includes lectures on client interviewing, case planning, fact investigation, case theory, witness examination and writing a legal brief. the final grade is based partly on oral and written exercises carried out in the classroom context (including a first client interview role play and a moot court) and partly on a portfolio prepared and defended by each student-team of two students; documenting their performance in the course of the practical pro bono work performed in relation to a client. each student team is allocated a practical supervisor, who must be a warranted practicing advocate and who takes legal responsibility for all decisions taken in the case and students are advised that they must consult with their supervisor and obtain his or her authorization before taking any practical steps in relation to their clients. furthermore, each student team is given academic supervision by means of supervised case rounds, coupled with lectures focusing on the practical skills students need to deploy in order to adequately assist their clients. this academic supervision is provided to small groups of up to 20 students in the context of the university by academics who are also warranted advocates. thus this system of dual supervision is intended to overcome the theory-practice dichotomy by encouraging student teams to take initiatives on the assumption that the client’s case depends on them; while ensuring that legal responsibility is carried by a practicing advocate. the operational side of the law clinic is the following: a potential client calls to the cottenerа resource center (further crc) and talks to its administrator about an existing legal problem. crc’s administrator calls to dr kurt xerri who is a manager of the law clinic and together with dr david e. zammit will allocate a student team to every existing case, taking into account the type of dispute and students’ interests stated beforehand. the student team will meet the client for a first interview, which is solely dedicated to information gathering and developing a relationship with the client. then the student team sends dr xerri the minutes of their meeting and on the basis of those minutes dr zammit and dr xerri will allocate a practical supervisor to the team. the relationship between students, clients and supervisors is structured in such a way that mostly it is the duty and responsibility of the students to keep direct contact with clients. practical supervisors will only intervene in the student-client relationship if there is a real need for it. however, students are supposed to meet their practical supervisors ideally once a week to ask questions they are interested in and to receive necessary recommendations. in addition, it is important to note that students lead the cases only to the certain point (in most cases without leading them to the court) and then they refer the case to three possible instances: an ngo working on the issues concerning the type of a dispute, the legal aid lawyers, or a private lawyer contacted by the client. reviewing the experiences of students over the years that the clinic has existed, no one has yet investigated the uom law clinic’s impact on students’ personal and professional skills, attitudes, beliefs. therefore, in may 2017, it was decided to conduct an evaluation process by means of a small-scale research on this matter. the main aim of the evaluation process was to reveal the impact students' involvement in the law clinic work had on their personal and professional development. due to the fact that the evaluation process was conducted through a small-scale research that requires to be correlated with the literature on the relevant topic, the aim of the research was much broader than just impact evaluation. the overall aim of the research was to explore to what extent transformative and experiential learning is happening through clinical legal education in malta. methodology according to leedy and ormrod (2005), methodology “dictates the particular tools the researcher selects” (p. 12). in order to choose the most appropriate tools to be adopted, it is necessary to look at the nature of the research aim and questions. our study aimed to explore transformative and experiential learning in clinical legal education in malta while studying the perspectives of students who experience these learning types. geertz (1973) stated that topics such “as how people are experiencing an event, a series of events, and/or a condition” (p.6) indicate that a qualitative study should be employed. this, in turn, implies the use of qualitative methods and tools (morrow, 2005). a questionnaire consisting of a set of open-ended questions was selected as the most appropriate tool to tackle the research question and to achieve the research aim, because open-ended questions are asked to give participants more options for responding (creswell, 2012). moreover, taking into account a relatively large population size, a mailed questionnaire was used to enhance the feasibility of the research design by collecting data in the relatively quick and inexpensive manner that according to bell (1999) this questionnaire distribution type is appropriate for. moreover, as suggested by creswell, (2012) to encourage a high response rate it was also decided to employ a three-step procedure, by including “a follow-up procedure” within the data collection stage (p. 391). in order to have more uniform and accurate data, students’ replies were obtained anonymously; which according to seligerand & shohamy (2000) encourages respondents to be honest. the questionnaire that was used as a data collection instrument for this study is presented below (see appendix). recruitment and profile of participants all prospective participants were involved (in their past or present time) in the law clinic activities that serve as the main platform where students obtain hands-on experience while studying law at the university of malta. in order to recruit students to participate in the research, email addresses were obtained with the assistance of the clinic's administration staff. then students were directly contacted by a researcher through emails with an offer to take part in the research. from 20 randomly invited students, eight students responded positively to the invitation. thus, below there is the analysis of the data obtained from eight students (two current and six former students), who participated in a small scale research aiming to explore to what extent transformative and experiential learning is happening through clinical legal education in malta while evaluating the impact students' involvement in the law clinic work had on students' personal and professional development. data analysis in order to achieve the aims of the evaluation process and the study, within which this process is employed, the data obtained from questionnaires was analysed using the following steps: coding and memorizing, identification of themes and categories, displaying and reporting, and concluding the results (lichtman, 2013; punch & oancea, 2014). thematic analysis was chosen as the most beneficial type of analysis due to two main reasons. being free from its theoretical framework, the thematic analysis gives the researcher an opportunity for a flexible data analysis that has the power to provide a detailed and complex account of data (braun & clarke, 2006). secondly, it provides a systematic approach for identifying and analysing recurring patterns across the dataset thanks to that major themes and sub-themes are getting formed (braun & clarke, 2006). the data were analysed inductively to assure the validity of the research findings (cohen et al., 2018). the codes from students’ questionnaires data were gathered into categories and crosschecked with previously-defined topics. as a result, the categories were clustered into two major themes with various sub-themes: (1) students’ perception of the clinic and/or learning that takes place there; (2) the impact of the students' involvement in the law clinic work. research findings and discussion 1. students’ perception of the clinic and/or learning that takes place there. although there were no direct questions in the data collection instrument that aimed at finding how students perceive learning obtained in the clinic, during the data analysis process information relevant to this issue was nevertheless revealed. as a result, primary data containing some information on this matter was after the analysis structured into two sub-themes. the clinic served as a continuation of the learning obtained in the classroom and helped to put theory into practice. four out of eight students declared that they found experiential learning and the information received in the clinic as a continuation of their classroom learning. it was stated by the students as part of their answer to the question about potential differences students perceive between the nature and an application of law in the framework of law clinic and in the classroom environment. below there are statements made by two different students which most effectively communicated this idea: “most of the time i was able to fully rely on my lecture notes when handling the various clients that we had, so the lecturers do explain the law in a way that allows us to easily apply it”; “experiences like this help balance the huge academic materials we must study and the more crude methodology we must use, as academic learning and practice are in no way mutually exclusive but in actual fact very complimentary”. these ideas are highly connected with the students’ perceptions of the clinic as the one that helped them to put theory into practice. taking into account that students first learned legal theory in the classroom setting and later on, applied it within the clinical setting, it portrays the clinic as the extension of the learning students acquired in the classroom. there are two students’ excerpts below that directly refer to this: “the clinic bridges the theory to the practice”; “the law clinic gave me an opportunity to put theory to practice”. this is in direct correlation with the mechanism of the experiential leaning cycle that as kolb and lewis (1986) state, makes abstract concepts ‘real’ as the learner can see examples and applications of concepts occurring in their experience (p. 100). moreover, “to test legal theories in practice” is the opportunity presented by romano et al. (2017) that the clinical form of legal education is intended to provide (p. 277), that is, in its turn, a means to experience abstract legal learning content (burke, 2007). the clinic’s staff was supportive, helpful and provided enough guidelines. in response to the direct question about the information and/ or assistance from the staff of the law clinic that students were provided with, all students reported that during their involvement in the clinical work they received quite a sufficient amount of support and assistance from the clinic's staff. the following words came from students: “our supervisor has all the necessary expertise and offered all the help we needed in preparation, during and after the interviews”; “supervisors were always available to guide us and give constructive criticism”. the characteristics of the law clinic’s staff and its assistance reported by students are similar to the characteristics the transformative learning facilitator is required to have. taylor (1998) states that being “trusting, empathetic, caring, authentic, sincere, and demonstrating a high degree of integrity” (as cited in guthrie, 2004, p. 412) are the characteristics a transformative learning facilitator is supposed to possess and that contribute into the creation of safe and supportive learning space. 1. the impact of the students' involvement in the law clinic work. due to the fact that the main aim of this evaluation process was to explore the impact students' involvement in the law clinic work had on their personal and professional attitudes, belief and skills, at the data collection stage the greatest attention was given to reveal this impact. as a result, primary data consisted of the rich information on this matter; that after the analysis was structured in four sub-themes. the clinic developed certain student's skills (professional /general). the study helped to reveal a list of new skills students developed while being involved in law clinic’s work. it was decided to split them into two groups: professional skills and general skills. among the skills that might be useful for a lawyer and that students perceived as being developed through the clinic, the greatest attention was given to interviewing skills. five out of eight students mentioned in their replies this type of new skills acquired and developed through the clinic: “it was useful in developing client interviewing skills”; “learned interviewing skills”. in relation to general skills and abilities, two students pointed out the increased level of self-confidence: “helped me to come out of my introverted shell and to speak easily with clients”; “clinic helped me to gain a certain amount of confidence”. kolb (1986) and burke (2007) suggest that a significant learning outcome of the hands-on experience obtained at the university clinics is the increase in students' self-confidence. improvements of communication skills are considered by students and legal educators as one of the reasons for gaining self-confidence (turner et al., 2016). in this regard, our findings not only show that both students' capacities were developed as a result of the hands-on experience obtained at the clinic but also prove that a direct correlation indeed exists between gaining self-confidence and improvements in communication skills. since, according to virgil (2016), only work-based learning is capable to build students' professional technical skills, it would not be possible to develop the ability not to be under stress while interviewing a client and to ask an appropriate set of questions if students were not exposed to the real work setting. moreover, there are some other significant inputs different students mentioned as being produced by the clinic: “helped me to make professional contacts”; “raised an understanding that it is important not to stereotype”. the last student’s statement is in line with burke’s (2007) idea that work-based learning enhances critical thinking of students. this may be attributed to the way work-based learning allows students to encounter broader social issues that at the same time definitely contribute towards broadening student's sources of information and social networks (virgil, 2016). 1.1. the clinic expanded the students’ understanding of law (legal complexity). the overwhelming majority of the students confirmed that their experiences in the law clinic expanded their understanding of law. once they got the chance to participate in a real legal process, they realised that law is broader, more complex and much more versatile than they originally anticipated. there are two students’ statements below representing this finding most clearly: “in the classroom, things are usually pretty straightforward and the scenarios are black or white. in real life, things become more diverse and broad”; “we learned the utopian perspective of law in class, cause while working with the client we realised that many of the principles we learned about are ignored in practice”. the changes described in students’ understanding of the subject studied are in line with the impact experiential learning usually has on the way students learn particular subjects. turner, et al. (2016) state that, due to the opportunity to test legal theories in practice provided by experiential learning, students experience legal complexity and understand the law better. the words students used to characterise the changes that occurred in their understanding of law are diverse, such as 'more diverse and broad', or 'more complex', but all of them highlight the legal complexity experienced by the students. an overall enhancement of students’ understanding of course content is, as burke (2007) states, also one of the learning outcomes of the experiential learning approach employed in the academic environment. 1.2. the clinic helped students to see a social justice dimension to law and to the legal profession. six out of eight students who participated in the evaluation process of their clinical experience attested that it helped them to see a different role of law and of a legal professional; that is a social justice role. despite the fact that every student expressed this idea by describing a different aspect of this social justice process, most of them acknowledged the importance that this aspect of the law and the legal profession be exercised. these are some of the students’ statements connected with social justice ideas: “it gave me a new perspective of how law can be of service to the least advantaged”; “my perception of the legal profession was influenced dramatically as i was exposed to the harsh realities of clients from different social strata. the legal clinic was a challenge for us as students to try to bridge that gap and provide help not only as budding lawyers, but as humble young people with a vocation towards law as a public service”; “i realised that money is not that much important than the happiness felt when helping those in need”. in connection with this, it is worth stating that many academics and practitioners suggest that work-based learning, being a part of the academic program curriculum, goes further than just enhancing students’ skills and knowledge (santalucia & johnson, 2010). the words of mezirow (1991) can serve as evidence that, “…the workplace is an ideal environment which can provide cognitive tools (e.g. theories, ideas, practices, concepts) to enable students to not only gain knowledge and skills but also shape their ideas, perspectives and meanings” (as cited in babacan & babacan, 2015, p.173). the lack of opportunity to be engaged in the work-based learning “limits an understanding of the social context in which the special discipline operates” (babacan & babacan, 2015). according to freire (1970, as cited in babacan & babacan, 2015, p. 172), preventing students from being attributed civic responsibility during the educational process, prevents them from becoming active society members. so-called “engaged citizenship” can be promoted only through the clinic’s or field placement’s activities. (burke, 2007, p. 8). 1.3. the clinic helped students to realise the importance of other needs (non-legal advisory) clients might also have. the vast majority of students reported on the importance of other needs (not legal advisory) that clients have, while coming to a lawyer for a legal help. among these students mentioned various needs, and some of them are presented below: “most importantly it helped me realise that our role as legal professionals sometimes entails going beyond the purely legal and actually acknowledging and validating people’s emotions”; “clients might also need other things: to listen and guide them”; “i also learned it is also important to client that they have someone to listen to them, and that many times that matters to them as much as winning the case”; “helped me understand that a lawyer can make a real difference to a client, not just with their legal knowledge and skills, but also, and in equal measure, with their compassion and willingness to listen”. pointing out different aspects, every student acknowledged to a certain degree that working in the clinic, while helping them to realise the things described above, transformed the initial belief they possessed in the importance of a particular legal need clients have, as this was proved (by their clinical work) not to be true. one of the main work-based learning outcomes is the change in attitudes, beliefs and values occurring in a student’s mind after he or she “encounters a perspective that is at odds with his or her current perspective” (kroth & cranton, 2014, p.3). the terms ‘attitudes, beliefs and values’, as mezirow (2000, as cited in santalucia and johnson, 2010, p.2) states, are united by one definition, “a frame of reference”. this, following the transformative learning approach, is to be challenged by theories of practice (guthrie, 2010). conclusions in conclusion, this study demonstrates the active use of transformative and experiential learning and its particular elements within the law clinic at the university of malta. the findings drawn from the modest data obtained from eight students, serve as a source of information on the mostly positive students' perceptions of the learning happening in the law clinic and the positive impacts it brings. the clinic, while serving as a continuation of the learning obtained in the classroom, helped students to put theory into practice; bridging the theory/practice divide which is problematic in malta. the clinic's staff played a positive role in the learning process by being supportive and helpful and by providing enough guidelines to students, that, according to mezirow (2003, as cited in babacan & babacan, 2015, p. 172), are “necessary prerequisites for a deep transformation of personal values, attitudes and beliefs”. the involvement in the law clinic work had various positive impacts on students, that are in line with the transformative and experiential learning objectives, as such reinforced students’ understanding of a study subject (that is the law); changed beliefs; developed certain student's skills and promoted “engaged citizenship”. limitations there exist a number of limitations to the evaluation conducted through this study. the research was conducted on a small scale due to limited time allocated to it and this restricts the findings' depth. the study provides information on students' learning experiences obtained within the university of malta law clinic and various impacts they had on students. however, as the research focuses on a very small sample, more comprehensive data could be gathered by distributing more questionnaires among students. analysis of secondary data such as empirical and conceptual papers in clinical legal education field that present various critical perspectives on transformative and experiential learning should also be taken into account. references andò, b., aquilina, k., scerri-diacono, j. & zammit, d. 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(2005). quality and trustworthiness in qualitative research in counselling psychology. journal of counselling psychology, 52(2), 250-260. doi: 10.1037/0022-0167.52.2.250 romano, a., hirsch, s., & paczynska, a. (2017). teaching about global complexity: experiential conflict resolution pedagogy in higher education classrooms. conflict resolution quarterly, 34(3), 255-279. santalucia, s., & johnson, c. (2010). transformative learning: facilitating growth and change through fieldwork. ot practice, 15(19), ce1-ce8. seliger, h., & shohamy, e. (2000). second language research methods. oxford university press the university of malta. (2019). study-unit description. retrieved from: http://www.um.edu.mt/laws/studyunit/law5005 turner, j., bone, a., & ashton, j. (2016). reasons why law students should have access to learning law through a skills-based approach. the law teacher, 52(1), 1-16. doi: 10.1080/03069400.2016.1201739 virgil, s.m. (2016). the role of experiential learning on a law student's sense of professional identity. wake forest law review, 51(2), 325. zammit, d., (1998) laws and stories: an ethnographic study of maltese legal representation. doctoral thesis, durham university. retrieved from http://etheses.dur.ac.uk/5050/?fbclid=iwar3n7oxfxxfpjb0jv9tr_yde6iwkyavcek8qg-xf6vlavjl_fi4q6v4hpqs zammit, d., & muscat m. (2019) human dignity in malta. in p. becchi, k. mathis (eds.) handbook of human dignity in europe. switzerland: springer nature, pp.1-32 appendix a questionnaire for the university of malta law clinic students many thanks for your participation. your answers will be used anonymously. 1. are you a former or current student involved in clinic’s practice? 2. how long have you been participating as a student in the law clinic’s activities? less than 1 semester 1 semester1 year 1 or more years 3. please state whether your experience in the law clinic has influenced your perception of a legal profession. 4. please state whether your experience in the law clinic has influenced your personal development. 5. please state whether your experience in the law clinic has influenced your legal career. 6. have you noticed any difference between the nature and an application of law in the framework of law clinic and the same issues explored in the classroom environment? please provide reasons for your answer. 7. how can you assess the level of help which was provided to you by supervisors or any other administrative staff during your involvement in the law clinic. 8. what are the most important things you have learned or skills you have developed while participating in the law clinic’s activities as a student? 9. while participating in the law clinic’s activities you have interacted with the maltese justice system directly or indirectly. please describe how this system (especially the chamber of advocacy, ombudsmen, courts) affects implementation of work you proceed and provide any ideas for improvement. 175 bridging the gap? the effect of pro bono1 initiatives on clinical legal education in the uk cath sylvester* legal education in the uk has undergone significant changes over the last decade and is once again under review2. whilst there is now wide spread acceptance of the benefits of experiential learning in educational terms and a focus on the distinction between deep and surface learning, clinical legal education in the uk has remained firmly on the sidelines. its first introduction into uk legal education emerged in the mid 1970s with the university of kent at canterbury’s real client clinic shortly followed by the university of warwick’s programme in 19753. by the 1980s only four clinics remained in existence at birmingham, warwick, south bank and northumbria, a contrast to developments in the usa where by 1973 clinical programmes had been established in 125 out of the 147 accredited law schools. such programmes, whilst welcomed almost universally by the participating students, have been harder to establish as offering a valid contribution to legal education by academics and to some extent by the legal profession itself. clinical programmes have come and gone and are often first to feel the effect of resource crises. however, recent years have seen the establishment of a number of pro bono schemes based within law schools and operated with student voluntary participation. whilst offering a different experience to the in house, real client programmes which are incorporated and bridging the gap? the effect of pro bono initiatives on clinical legal education in the uk 29 * cath sylvester, principal lecturer, solicitor and director of the student law office at the university of northumbria, uk. 1 pro bono publico – literally for the public good – the term commonly used in the uk to denote the giving of legal advice and services without charge. 2 the training framework review group consultation paper 2001 – the law society. 3 learning law by doing law in the uk by richard grimes. international journal of clinical legal education, november 2000, edition 1. assessed as part of a course of legal study, they have commanded the attention of the legal academy and profession alike. this article examines the reasons for the uk’s apparent reluctance to accept clinical legal education as an essential element of legal education and argues for its inclusion as an addition to, not a distraction from, rigorous and specialist legal education. it will then consider current developments in legal education and trends in the profession which have led to the rise of pro bono work in law schools and to what extent these pave the way for the wider acceptance of curriculum based clinical programmes in the uk. whilst there can be no doubt that more law students are involved in schemes bringing them into contact with practical legal work, the in-house real client clinic based in the law school and operating as a solicitor’s office is still relatively rare. sheffield hallam, queens belfast and kent universities all provide optional, assessed clinical legal education programmes which are integrated into their undergraduate degree programmes. at northumbria the clinical course is a compulsory element of the exempting degree with all 120 fourth year llb exempting degree students participating in an assessed clinical course of study4. such programmes have huge resource implications for schools but the expansion of pro bono work shows that law schools have been resourceful in finding ways of introducing schemes offering practical involvement to their students. a survey conducted by sara browne in 19995 found that out of 73 law schools offering undergraduate qualifying degrees and/or postgraduate education 43% stated that some pro bono activity existed within the law school and a further 17% stated that pro bono activity was planned. 16 law schools had schemes in which students worked in conjunction with providers of free legal services, such as citizens advice bureaux, to provide pro bono work. 12 providers had clinics operating within the law school and three others had schemes based within the law school but not described as clinics. the students from the london schools of law participated in the long established free representation scheme6 and the university of westminster continues to run its death row clinic providing advice to assist death row inmates with their legal appeals in the usa. in recent years the college of law has set up advice centres at all its colleges. such schemes are clearly very popular with students although the study does not give figures for the proportion of students participating in these schemes. the 1999 study confirmed that out of the 29 law schools who participated in pro bono activity nine schemes were assessed and one was compulsory as opposed to voluntary. clinical legal education as part of legal education in the uk in the uk, the undergraduate law degree, has always remained distinct from professional training in law. at undergraduate level the profession is not compartmentalised between barristers and solicitors or indeed between legal scholars and those intending to become legal professionals. 30 journal of clinical legal education june 2003 4 the university of northumbria is unique in that it runs a 4 year exempting degree which meets both the undergraduate degree requirements and the post graduate legal practice course requirements. on graduating with this exempting degree students are able to enter immediately into the required 2 year period of apprenticeship with a solicitor’s firms known as a training contract. 5 a survey of pro bono activity by students in law schools in england and wales by sara browne the law teacher. 6 the free representation unit was set up in 1972 to provide free representation for those who cannot afford to pay for representation at tribunals in the greater london area. volunteers at fru are 3rd year law students, trainee solicitors and pupil barristers. the professional training for solicitors takes place through a one year post graduate course (the legal practice course) followed by a two year training contract. the dichotomy between legal and professional legal education has continued to engage academics and professionals alike despite a number of moves to blur the distinction and move towards more integration in legal education. in 1971 the aclec report7 emphasised that the academic and vocational stages of legal education are joined by ‘common threads’. the law society introduced requirements for ongoing professional education for solicitors and barristers making an element of continuing professional development compulsory for all solicitors since november 19988. it appeared that some moves were being made to view legal education as a continuum with an ongoing role permeating the professional life of a lawyer. undergraduate legal education: for academics the provision of legal education focuses on the undergraduate degree in law. the contents of which are determined with reference to the joint announcement on full time qualifying law degrees issued by the law society and the general council of the bar.9 this document identifies seven foundation areas of legal knowledge to be covered by a qualifying law degree. the seven foundation areas include obligations i (contract), obligations ii (tort), criminal law, equity and trusts, european law, property law and public law; areas traditionally covered by a lecture/seminar approach. fundamentally these cores have not changed throughout the last 10 years. nevertheless the announcement is not proscriptive on how such information is to be imparted ‘we would not want to see the intellectual richness of law school teaching diluted or these different scholarly approaches inhibited; nor do we want to see curricular developments obstructed or discouraged’10. within the undergraduate law degree there is ample opportunity for a clinical approach but this has not been adopted wholesale by academics and law schools for a number of reasons. firstly, clinical legal education is often interpreted as primarily skills training with a more appropriate role to play in professional legal education. secondly, large numbers of undergraduate law students do not enter the legal profession and many never have any intention of doing so. to impose a clinical element is seen as diluting the academic study of law with skills only relevant to the legal professional. in 2000 the lord chancellor’s department, at the request of david lock mp, proposed in a discussion paper that all qualifying law degrees in the uk should include an element of compulsory practical work. whilst the practical work envisaged was never specified, the proposal provoked angry responses from academics; ‘this practical training will do students no good. working in the cab11 is not like bridging the gap? the effect of pro bono initiatives on clinical legal education in the uk 31 7 the lord chancellor’s advisory committee on legal education produced its first report on legal education and training in april 1996. 8 research carried out on behalf of the law society in 1998 by jon hales and nina stratford of social and community planning research found that the majority of courses attended by solicitors as part of the continuing professional development requirements concerned areas of substantive law. 9 announcement of full time qualifying law degrees issued jointly by the general council for the bar in 1995 and amended in 1999. 10 ibid. 11 citizens advice bureau – a national free advice service open to all members of the public. being a lawyer, being a lawyer is not the same thing as studying law and being a lawyer is what only a minority of law students will be’12. thirdly, many academics do not accept that clinical legal education has a valid role to play in undergraduate legal education, or indeed a role which brings to legal education anything that is an improvement on what can be achieved by more traditional study within the more focussed environment of a specialist subject. focusing on the intellectual skills (as opposed to practical skills) of the lawyer william twining13 identified a number of intellectual qualities required by the good lawyer: a) an ability to express oneself clearly both orally and in writing b) an ability to distinguish the relevant from the irrelevant c) an ability to construct and present a valid, cogent and appropriate argument d) an ability to identify issues and to ask questions in a sequence appropriate to a particular context e) general problem solving skills f) library research skills g) an ability to spot ethical dilemmas and issues the list would not be out of place as objectives for virtually any undergraduate degree programme including law. clinical legal education also holds the above aims as central. perhaps the emphasis on the more practical legal skills experienced in law clinics detracts from the fact that clinic has, at its heart, the aim of developing many of the same disciplines with the same rigour as in the study of academic law. the skills that it develops are transferable not only between the academy and the profession, but also between law and other disciplines. indeed clinicians would say that the problem based learning approach of clinical legal education focuses much more intensively on developing these skills and the interaction between them. in trying to identify ‘the core’ a the heart of legal education twining concludes ‘there is little unique or special about ‘the legal mind’ except the ability to apply some general intellectual skills in some specific kinds of context....if there is anything unique or special that academic lawyers have to offer at a general level to colleagues from other disciplines it is local knowledge of an important area’. despite twining’s observations, the academy has always been resistant to what it interprets as interference by the profession. in recent years the changing profile of the profession, discussed later in this article, has unashamedly impacted on the second stage of legal training the legal practice course. it is of concern that these pressures must feed through to undergraduate education forcing it to respond to the economic vagaries of the profession. toddington comments that ‘some degree of educational and curricular integration is undoubtedly desirable but let us not feel compelled to suggest that the world of law and professional practice on the one hand , and on 32 journal of clinical legal education june 2003 12 tony bradney, faculty of law university of leicester is the editor of the reporter, the newsletter of the society of public teachers of law. this article was published in the winter 2000 edition. 13 william twining – in blackstone’s tower – the english law school 1994 hamblyn lecture. the other, the academic study of the philosophical, cultural, ideological and economic complexities of this world are one and the same thing’14. however, the inaction between the two cannot be denied. law has always developed piecemeal. there are no boundaries between the academic and the professional; both inform and develop the other. whilst we may complain of professional lawyers performing mechanistic tasks as a means to an end, it is clear that not all legal practice is like this or we would not get the daily developments fed by the decisions of the court and the legislative changes of parliament. some professional lawyers are making law whilst some academic lawyers are interpreting law and feeding it back into the circle. what is essential is that law students make the link. whether it be through studying precedent and case law or whether it be through clinic, when that piece of research doesn’t just supply the answer to the question but also highlights the gaps in the law. nigel savage and gary watt15 identified the link and urged that ‘if law is to remain the learned profession the law school should assert its role as guardian of that special body of learning and skills which constitutes lawyerliness. if the law school fails to become the house of intellect16 for the profession it is certain that the profession will build other houses to serve its needs.’ postgraduate legal education: the legal practice course the introduction of the postgraduate legal practice course for the training of solicitors in the early 1990s increased the focus on skills. it was a move away from the didactic and mechanistic teaching of legal practice and acknowledged, for the first time, that professional education should also include training in practical legal skills. the course identified five key skills relevant to legal practice; drafting, research, advocacy, interviewing and negotiation (commonly know as the drain17 skills) which were to be examined in the one year course. the skills were taught in the context of one of the other practical subject areas (e.g civil litigation or conveyancing). the approach is highly formulistic and teaches the skills in isolation to each other. its aim is to bring students to a level of competency required for entry to the profession as a trainee. this approach to skills teaching on the lpc has received its fair share of criticism not least from the profession who felt that whilst the drain skills were important in legal practice they were more effectively developed at the training contract stage. the main area of change in the lpc course was in its delivery. it moved away from the traditional lecture based approach to a more interactive workshop based approach. the compartmentalisation of legal education in the uk into the academic and the practical and into ever expanding numbers of specialist subject areas militates against the integration of clinical legal education. the above consideration of undergraduate and postgraduate legal education in the uk demonstrates a clear role for clinical legal education as a developer of both the intellectual and practical skills of the lawyer. whilst specialisation in itself is synonymous with expertise and bridging the gap? the effect of pro bono initiatives on clinical legal education in the uk 33 14 stuart toddington the emperors new skills: the academy, the profession and the idea of legal education. pressing problems in the law vol 2 edited by peter birks. 15 a ‘house of intellect ‘for the profession nigel savage and gary watts – pressing problems in the law vol 2 ed peter birks. 16 the law school as a ‘house of intellect’ was identified by twining in his 1994 hamblyn lecture. 17 the skill of negotiation has subsequently been dropped as an assessed skill on the lpc. expertise is increasingly the future of the profession, some would argue that by developing the intellectual, academic and practical skills through clinic we prepare students for the ever-changing specialised profession. we prepare students for a the multi dimensional approach to the law needed for problem solving in both practical and academic settings. the requirements of the profession the legal profession in the uk continues to change rapidly. in recent years the number of solicitors in the uk has increased dramatically; in 1990 there were just under 55,000 solicitors and by july 2000 there were 83,000. solicitors in private practice have become increasingly specialised particularly in areas such as corporate work. the size of firms has increased so that by the year 2000 there was 447 firms with over 11 partners. out of these, 23 firms had 81 or more partners and 104 had between 26 and 80 partners. the income patterns of firms has also changed considerably. in 1989 residential conveyancing was the main stay in terms of gross fee income for solicitors. by the late 1990s it contributed only 10% of gross fees compared to a rapid rise in fees from commercial and business work (28%) and overseas earnings (8%). the emergence of the large, specialist, corporate firm and the decline of smaller, high street, general practice has inevitably fed into the debate on legal education. in addition to changes in the private sector, the publicly funded (legal aid) sector was also curtailed with the introduction of the community legal service18 which restricted the provision of legal aid work to solicitors entering contracts with the lsc. the first contracts for civil work were entered into in january 2000 and for criminal legal aid in april 2002. in its consultation document; the future of funded legal services,19 the law society drew attention to a clear drop in the numbers of solicitors prepared to provide services to the legal aid sector because of heavy regulation by the legal services commission and relatively poor rates of remuneration. in its annual 2001/2002 report the legal services commission confirmed that 6% of suppliers of publicly funded work had left the system with a further 50% of firms seriously considering leaving. in immediate terms there has already been a significant drop in the provision of publicly funded advice particularly in areas such as employment law (a 12% drop), consumer law (8% drop) and welfare benefits (8% drop). not surprisingly, the profession’s demands of its new recruits changed correspondingly. firms complained that the whole pre admission training process was insufficiently rigorous and was producing students with a lower standard of knowledge and analytical skills than was previously the case. many complained that legal education was not sufficiently preparing students for the specialist work of the specialist practice and, as a direct consequence, the city legal practice course came into existence suggesting a move towards the niche lpcs. from the publicly funded profession complaints came that the lpc course was too business orientated and the course was slanted towards the business end of the profession. 34 journal of clinical legal education june 2003 18 introduced under the access to justice act 1999. 19 the future of publicly funded legal services; a consultation published by the law society february 2003. indeed the profession seemed to be rejecting legal education entirely in favour of choosing its entrants from graduates of non law degrees20. figures published in 1993 showed that in the top 100 law firms 30% of training places went to non law graduates and in thirty of these firms more than 50% went to non law graduate entrants. an analysis of responses from 57 solicitors practices and 53 barristers chambers recruiting over 290 entrants in 1998 found that what the employer was looking for first and foremost was ‘good students from good universities’21. a good degree was seen as an upper second in a single or joint honours in a respectable (humanities) subject area. a good university was seen as oxbridge or a redbrick university. a depressingly unimaginative approach to recruitment. however, looking at the analysis some indication can be found as to what attributes the respondents valued. when asked to rank attributes, the most highly ranked quality was that of synthesis /analysis, followed by communication /literacy then evaluation and problem solving . the drain skills ranked in the mid range. the respondents also indicated strong support for the propositions that those entering the profession should know the law before they enter the profession; that finding the law was more important than knowing the law and that however much a new lawyer knew he is likely to meet an unfamiliar area of law. it could be argued that the whims of the profession and its ever changing demands to meet economic expediencies is reason in itself to maintain the independence of legal education. however, it must also be clear that if a law degree ceases to be the primary route for preparation for the profession and the profession takes to filling what it perceives as the gaps for itself, both the profession and the academy are likely to be diminished. developments in uk legal education in 1996 the lord chancellor’s advisory committee on legal education and conduct produced its first report on legal education and training. the report identified as serious weaknesses ‘the artificially rigid divisions between the academic and professional stages of legal education and the perception by some of the academic stage as a preparation primarily for vocational training as a barrister or solicitor’. the committee identified ‘unnecessary compartmentalisation of the ‘vocational’ and the ‘academic’ aspects of legal education’. the legitimate tensions between academic lawyers and skills trainers can and should be the basis for creative partnership rather than a cause of hostility’.22 the report put skills training firmly on the agenda for legal education identifying a particular deficiency in relation to legal research skills. the law society’s training framework review in response to the criticism from the profession and the law schools, as well as a concern over the divisions appearing within legal education, the law society published a ‘training framework review group consultation paper’ in 2001. this document purported to tackle the training of lawyers from ‘cradle to grave’. it presupposed that a consensus could be reached on the competencies a modern solicitor required in order to practice. it then proposed the development bridging the gap? the effect of pro bono initiatives on clinical legal education in the uk 35 20 in the uk a graduate of any discipline can enter the profession by taking a one year course of study (the cpe) followed by the legal practice course. 21 desiderata: what lawyers want from their recruits by vera birmingham and john hodgson. 22 a new vision of legal education chapt 2 of the report. of a framework or grid of competencies ‘around which it will be possible to identify what should be required of the training process at every stage of a solicitors career’23. it divided the competencies into the following three areas: knowledge, skills and ethics. the idea of the framework is that it will set a benchmark for standards and will also identify the outcomes of the training process thereby making it easier to make decisions on the individual parts of the process. presumably allowing for training programmes tailor made to specific practices and furthering the scope for the niche training programme. the focus on competencies has the benefit of identifying the huge areas of common ground in academic and professional education and practice and may lead to a more rounded approach to legal education from pre to post qualification and beyond. the overwhelming difficulty remains in the huge task of identifying the outcomes at each stage of the process. the devil, as they say, is in the detail. establishing clinical legal education in the curriculum in the light of the above turmoil in legal education and the profession, does clinical legal education have a role to play? from an educational point of view, clinical education has a sound basis; kolb’s learning cycle24 and the findings surrounding problem based learning make clear the advantages of experiential learning. from a student’s perspective their motivation and involvement in real client work is always received enthusiastically (each year of feedback from the law office programme reminds me of this). however, we need to establish clinical legal education as an integral part of legal education not just as a taste of the profession or an exciting way of gaining students attention to the practice of law, but as a relevant discipline. indeed, i believe it can plug the hole of the damaging criticisms of legal education. it can be used as a tool not only for learning law and the skills identified as traditional lawyering skills (interviewing, advocacy etc). it can go further to develop those skills of synthesis and analysis that appear to be a common goal for both the profession and the academy. the uk, although slow in adopting the clinical approach, has an excellent basis upon which to build. the established clinical programmes have not been demand led by a need for free legal services, nor were they established with the emphasis on provision of practical experience for students (as in countries where the training opportunities for law students are limited). the existing programmes have always had, at their forefront, educational priorities. the increase in pro bono initiatives and greater involvement of students in legal practical work may compromise this. not all pro bono initiatives make any claim to providing clinical legal education, but of those that do a new set of priorities come into play. 36 journal of clinical legal education june 2003 23 training framework review group consultation paper 2001 law society. 24 kolb’s learning cycle 1984 identified four stages in a natural learning cycle; experiencing, reflection, conceptualisation and planning. why the climate is right for clinical legal education to develop clinical legal education in the uk has never been driven by demand. in the usa the provision of legal services through post graduate law students is a major player in the provision of free legal advice25 and this has clearly provided impetus from many different interested bodies for the development of clinical programmes. the uk first introduced a system of public funding for legal work in 1945 initially to deal with matrimonial cases, by 1970 this had spread to cover a substantial amount of criminal work. criminal work has always been covered generously by the uk legal aid system but rising costs in this area threaten to push out funding for other civil welfare legal areas. from 1970 onwards expenditure and coverage of legal aid expanded dramatically and by 1991–1993 the legal aid budget was increasing by 20% per year26. in order to keep control on costs, areas of work were removed from the system (e.g. personal injury litigation), eligibility rates were cut and rates of remuneration under the scheme did not increase. complementing the work of the legal aid lawyers, the uk has a strongly developed advice sector. in the late 1960s law centres had begun to emerge and through the 1970s and 1980s the numbers of free advice agencies and citizens advice bureaux continued to increase. in an attempt to curtail the ever expanding legal aid budget the government introduced a franchising system and established the legal services commission (lsc) in april 2000. through these schemes both solicitors who have contracts with the lsc for providing legally aided work and advice agencies who are dependent on the lsc for funding have their case numbers monitored and legal aid income restricted. coupled with demanding quality standards which are audited on a regular basis, many firms are abandoning publicly funded work. certain areas of work; housing, employment law, welfare benefits and consumer problems have all been hit by these restrictions. all areas in which law clinics can operate effectively.27 the legal services commission have identified this potential which has multiple benefits. by funding or supporting clinics the lsc can encourage students to take up areas of law which are being deserted by the legal profession at the same time as providing a service which is not being provided for adequately at a level which meets the lsc’s stringent quality requirements. for the first time clinics may be identified as a possible plug for shortfall caused by the reducing legal aid sector. in the uk, universities have fought to retain their academic freedom. however, there is a funding crisis in higher education28 and much talk of alternative sources of funding and increasing student numbers. increasingly universities are required to demonstrate that they contribute to their local bridging the gap? the effect of pro bono initiatives on clinical legal education in the uk 37 25 in 1969 case of gideon v wainwright the supreme court confirmed the requirement for free legal representation in serious criminal charges where there was a possibility of a substantial prison sentence. 26 figures taken from the future of publicly funded legal services a consultation paper by the law society february 2003. 27 at northumbria the law clinic has entered into contracts for providing publicly funded work in employment and housing work having met the specialist quality requirements in these areas. 28 white paper on the future of higher education published 22.1.03. communities and economies. in many african universities, this is of such importance that it has been incorporated into their mission statements,29 but in the uk the contribution clinics can make to their communities has rarely been acknowledged. however, there is still no commitment, in the form of guidance or direction in professional rules, from the professional bodies to encourage student involvement in clinical work. in the usa the american bar association, as part of its pro bono commitment under model rule 6.130, encourages student involvement31. in 1996 the aba amended its accreditation standards to provide that law schools should ‘encourage students to participate in pro bono activities and provide opportunities for them to do so32. nevertheless in the uk a pro bono imperative is emerging. in 1999 the solicitors pro bono group in the uk launched an initiative with law firm clyde and co to encourage widespread involvement of law students in pro bono work. the aim of the project was to encourage them to undertake pro bono work which would lead to an ongoing involvement and commitment to pro bono activities throughout their career33. such a move was part of a general acknowledgement of pro bono by the profession; ‘it may just be a passing thing.... but there is a prevailing sense of a kinder age dawning in the nice 90s as a backlash to the elephantine excesses of the 1980s when the eat what you kill ethic was practicised so religiously that the less fit and fortunate went without’34. the justification for pro bono work has always been that it is an intrinsic part of being a professional ‘’pro bono should also be seen as a professional responsibility and as part of the professional culture, rather than as an ad hoc philanthropic exercise’35. the media coverage of fat cat lawyers and a general public mistrust of lawyers has forced firms to consider the benefits of publicising its good works. what effect this has on the quality of work provided by pro bono schemes is the subject of another debate. nevertheless, there has been a marked shift towards pro bono commitments with the larger national firms directing staff to become involved in pro bono projects some of which are linked to law schools or involve law students. the above factors and the clear direction given by aclec towards a more unified approach to legal education suggests that the climate exists, both in the law school and the profession, to make practical involvement in legal work an expanding area. amongst this proliferation of new and exciting projects it is important to recognise that the factors that are lending support to these developments may not be in the best interests of clinical legal education. not all practical experience is clinical legal education ‘raw undigested experience does not require a law school, is not educational and is not clinical’36. 38 journal of clinical legal education june 2003 29 the law faculty of makere university states in its mission statement that it is to ‘provide other university students and member of the public with the quality and quantity of legal knowledge and service required in their various callings or pursuits both within and outside the country of their residence’. philip f iya fighting africa’s poverty. ijcle november 2000. 30 which requires lawyers to take a responsibility to those unable to pay and calls on them to perform at least 50 hours of service each year on a pro bono basis. 31 http://www.abanet.org/legaled/probono 32 report of the aals pro bono project – learning to serve http://www.aals.org/probono/report2 33 solicitors pro bono group http;//www.students.probonogroup.org.uk/about.htm 34 the law society’s gazette 11.7.90 the politics of pro bono by evlynne gilvarry. 35 why pro bono makes for better lawyers – pete sweet new law journal 29.oct 1999. 36 hugh brayne – a case for getting law students engaged in the real thing – the challenge of the sabre tooth curriculum. the law teacher 2000 vol 34 no1. what does clinical legal education have to offer that pro bono may not? pro bono initiatives in law schools are, as established by browne’s research, many and various. whilst it is difficult to imagine that any would not provide some learning for a student, much of it could not be described as clinical legal education. what then is the essence of clinical legal education? boon defines clinical legal education as ‘a curriculum-based learning experience, requiring students in role, interacting with others in role, to take responsibility for the resolution of a potentially dynamic problem’. much is made of the learning environment for clinical education grimes37 describes clinic as offering ‘a supportive environment which empowers and encourages a student to move towards a deeper learning approach, based on the understanding and not just the acquisition of knowledge’. an emphasis on the deeper learning approach provides clinic with its opportunity to really make strides in terms of the holy grail of analysis /synthesis and problem solving and other intellectual legal skills as well as developing the more easily quantifiable legal skills of drafting etc. both grimes and boon identify the need for clinic to be part of the curriculum ‘with a rationale behind its development’. given the voluntary, non assessed nature of much of the pro bono work it is clear that such a rationale may follow the development of the project and not lead it. one of the widely acknowledged prerequisites for clinical legal education requires students to reflect on what they do. the concept of the reflective practitioner as described by schon38 has been widely acknowledged. jones39 describes the approach as one in which ‘professionals learn to ‘frame’ problems, impose a kind of coherence on ‘messy’ situations and through which they discover the consequences and implications of their chosen frames’. it encourages critical self assessment, contemplation and insight. savage and watts refer to an ‘elite of reflective practitioners, who ‘bridge the academic – practical divide’. clinic also provides an opportunity to consider law in context. grimes describes the defining characteristic as being a holistic approach which allows the ‘theoretical, practical and ethical to be studied side by side’. this begs the question of whether a clinical programme has to have all these dimensions to it. whilst it is possible for pro bono initiatives to inclde the above elements, it may be that they are squeezed out by other priorities. boon40 identified a conflict between the educational objectives of clinical work and the aim of client empowerment through pro bono work. ‘in conflicts between student’s educational needs and client needs, the former must triumph’. in reality such priorities are hard to establish. in the clinic at northumbria we do have a clause in our terms and conditions for clients that states that if the case ceases to be of educational value we have an option to cease acting. we do not have any means test or merits test in selecting cases and as far as i know this is the norm for other clinical programmes in the uk. nevertheless we do bridging the gap? the effect of pro bono initiatives on clinical legal education in the uk 39 37 richard grimes – the theory and practice of clinical legal education. teaching lawyers skills. 38 donald schon – educating the reflective practitioner 1987. 39 philip jones – we’re all reflective practitioners now: reflections on professional education. teaching lawyers skills. 40 andy boon university of westminster making good lawyers: challenges to vocational legal education 26.9.01. encourage students to take a critical approach to the work they do in clinic and to consider good practice. the very nature of the work we do in clinic lends itself to a consideration of acting in the public interest.41 judith dickson42 identifies three potential routes for clinics in the era of a new professionalism. she suggests clinics could abandon any ‘social or reformist purpose’ ‘it can be seen as a sophisticated method of professional training with an intellectual base’ or it could become ‘cause lawyering in the legal/social activist model’ or finally it could become a mixed model of both approaches. in the uk clinical legal education has always had its basis in the training approach. it is clear that this is now broadening out and it may well be that different models emerge with different emphases. the most interesting developments in clinical legal education are yet to come. as long as resourcing clinical programmes remains an issue it is clear that the profession’s new found commitment to pro bono initiatives can give cle a huge impetus in the uk. this, combined with the moves towards a more unified approach to legal education could finally move cle onto the firmer footing it deserves and more extensively into the curriculum. what remains to be assessed is the influence of the multitude of interested parties behind the scenes; the lsc, the firms financing the initiatives, the participating advice centres, the law schools, the law society and the government with its plans for legal education. 40 journal of clinical legal education june 2003 41 at northumbria students attend possession days to represent tenants in danger of losing their homes and learn very quickly the limitation of the public funding schemes. 42 clinical legal education in the 21st century :still educating for service? ijcle edition 1 page 33. practice report 107 promoting positive mental health in international postgraduate law students at a time of global uncertainty: a case study from qlegal at queen mary, university of london emily wapples1 abstract law student mental health and wellbeing was already a growing concern in the uk prior to covid-19, but when the pandemic occurred, widespread uncertainty placed an unprecedented level of mental health burden on students. law students were faced with dashed hopes, uncertain futures and the fear of negative academic consequences. this burden was exacerbated in respect of postgraduate international students in london, who were often also forced to decide whether to return home to their families, or to continue their studies abroad, albeit online. this paper uses a case study approach to discuss how one provider of postgraduate clinical legal education (cle), approached the promotion of positive student mental health both before, and in response to, the pandemic. qlegal at queen mary, university of london provides cle to postgraduates studying for a one year law masters, and in 2019-2020, qlegal delivered cle to 134 students from 27 countries. 1 emily wapples is the qlegal project coordinator at the centre for commercial law studies, queen mary, university of london practice report 108 the impact that the pandemic had on the mental health of international postgraduate law students was therefore witnessed first-hand. this paper discusses the challenges faced, and concerns raised by international postgraduate law students at qlegal as a result of the pandemic. it examines the steps taken by qlegal to maximise student engagement and promote positive student mental health when rapidly switching to a model of online delivery. the paper concludes by outlining the steps qlegal will take to monitor and address the impact that online delivery in this period of global uncertainty has on the mental health of the next cohort of postgraduate cle students. introduction law student mental health and wellbeing was already a growing concern in the uk prior to the covid-19 pandemic (the ‘pandemic’). the global uncertainty resulting from recent events has exacerbated these concerns and placed an unprecedented level of mental health burden on students, especially those studying internationally. this paper adopts a case study approach to discuss how qlegal, the pro bono commercial law clinic within the centre for commercial law studies at queen mary, university of london (‘qmul’) approached the promotion of positive student mental health both before, and in response to, the pandemic. it discusses the challenges faced by qlegal and our students in the wake of the pandemic, and reflects on the steps practice report 109 taken to maximise student engagement and promote positive student mental health when rapidly switching to a model of online delivery of clinical legal education (‘cle’). this paper aims to highlight the urgent need for cle providers to integrate the promotion of positive student mental health into their online offerings and provides suggestions for ways to do so. as a result, it is hoped that we can equip law students with the emotional intelligence and skills they need to meet their potential in an increasingly demanding profession. before discussing the impact of the pandemic on our students, it is necessary to first set the scene by discussing qlegal’s cle offering, the concerns which international students faced prior to the pandemic, and our approach to student mental health generally. part 1: context what is qlegal? now in its seventh year, qlegal operates as a simulation of an innovative commercial law firm. it offers pro bono legal advice and support to start-ups and entrepreneurs in areas such as intellectual property law, data protection, corporate structure and commercial contracts. qlegal students have the opportunity to participate in its practice report 110 programmes either in addition to their studies, or as an assessed, credit-bearing module. in 2019-2020, student programmes included (for example): 1. legal advice clinic: under the supervision of a qualified lawyer, student advisers interview clients, undertake research, and provide tailored preliminary written advice to clients. 2. public legal education (‘ple’): students research, prepare and deliver workshops, or draft toolkits to raise legal and business awareness in schools, and among the start-up community. this includes qlegal’s street law and business initiative (‘streetlab’), where students design and deliver lessons on law and entrepreneurship to pupils in disadvantaged areas, culminating in an incubatorstyle ‘pitch it’ competition for the pupils, run with external lawyers. 3. legal design: in teams, students use legal design methodology to produce solutions to law-related problems. together, the qlegal programmes aim to equip postgraduate law students with the legal and practical skills they need to succeed as lawyers in the 21st century: skills which legal employers often regard junior lawyers as lacking, such as commerciality and client care2. 2 bpp university law school (2018), the law training report: what skills do firms expect new entrants to possess in the post sqe era?, pp.18-22 [online] available at https://s3-eu-west1.amazonaws.com/bppassets/public/assets/pdf/brochures/uni-law-sqe-focus-groups-report2018.pdf https://s3-eu-west-1.amazonaws.com/bppassets/public/assets/pdf/brochures/uni-law-sqe-focus-groups-report-2018.pdf https://s3-eu-west-1.amazonaws.com/bppassets/public/assets/pdf/brochures/uni-law-sqe-focus-groups-report-2018.pdf https://s3-eu-west-1.amazonaws.com/bppassets/public/assets/pdf/brochures/uni-law-sqe-focus-groups-report-2018.pdf practice report 111 in 2019-2020, the qlegal team comprised three full-time and one part-time employees with diverse backgrounds spanning cle, legal practice, entrepreneurship, coaching and project management3. two of the employees are also trained as mental health first aiders4. london: the student capital of the world in 2019, london was ranked as the number one city in the world for students5. students are attracted to the excellent academic offerings; diverse nature of the city and the employment prospects london brings (among other things)6. qmul offers a truly international experience for students, achieving 18th place in the 2018 times higher education international students table, with 44.8% of its students coming from abroad7. in 2019-2020, qlegal provided cle to 134 postgraduate students from 27 countries studying for a one year law masters. the countries with the highest number of qlegal applicants were india, china, italy and greece, with students regularly 3 http://qlegal.qmul.ac.uk/about/team/ 4 the mental health first aid (“mhfa”) programme began in australia in 2000, and has since evolved into a global movement that is delivered by an active community of licensed providers in 24 countries. mhfa training first came to england in 2007, and between 2018-2019 mhfa england trained over 140,000 people in mental health skills. mhfa england (2018-2019), mhfa england impact report 2018-2019, p.1 and p.9 [online] available at https://issuu.com/mhfaengland/docs/mhfa_england_impact_report_2019/2?ff 5 qs quacquarelli symonds (2019), rankings revealed: the best student cities of 2019 [online] available at https://www.qs.com/rankings-revealed-the-best-student-cities-2019/ 6qs quacquarelli symonds (2020), qs top universities – london [online] available at https://www.topuniversities.com/university-rankings-articles/qs-best-student-cities/london 7times higher education (2018), the world university rankings. international student table 2018: top 200 universities [online] available at https://www.timeshighereducation.com/student/bestuniversities/international-student-table-2018-top-200-universities http://qlegal.qmul.ac.uk/about/team/ https://issuu.com/mhfaengland/docs/mhfa_england_impact_report_2019/2?ff https://www.qs.com/rankings-revealed-the-best-student-cities-2019/ https://www.topuniversities.com/university-rankings-articles/qs-best-student-cities/london https://www.timeshighereducation.com/student/best-universities/international-student-table-2018-top-200-universities https://www.timeshighereducation.com/student/best-universities/international-student-table-2018-top-200-universities practice report 112 citing a desire to gain practical experience of the london legal market as their motivation for applying. concerns of international students it is acknowledged that international students frequently have additional concerns to domestic students, including being away from friends and family, learning different study methods and learning in a new language8. qmul students complete their law masters in one year; a third of the time law students spend studying for their undergraduate degrees. the process of adjusting to their new studies and environment, and forming new friendship and support groups is therefore accelerated and intensified for international postgraduate law students. qlegal’s approach to teaching and pastoral support has been developed, and continues to be refined to address the additional concerns that our international students commonly face. law student mental health it is acknowledged that “law student mental health and wellbeing is a growing concern in the uk”9 (lawcare, n.d.). this paper adopts the following definitions and understanding of mental health: 8 uk council for international student affairs (2020), mental health support in the uk, [online] available at https://www.ukcisa.org.uk/information--advice/studying--living-in-the-uk/mentalhealth-support-in-the-uk 9 lawcare (date unknown), wellbeing in law teachers & students workshop [online] available at https://www.lawcare.org.uk/news/wellbeing-in-law-teachers-students-workshop https://www.ukcisa.org.uk/information--advice/studying--living-in-the-uk/mental-health-support-in-the-uk https://www.ukcisa.org.uk/information--advice/studying--living-in-the-uk/mental-health-support-in-the-uk https://www.lawcare.org.uk/news/wellbeing-in-law-teachers-students-workshop practice report 113 “mental health is a state of wellbeing, in which an individual realizes his or her own abilities, can cope with the normal stresses of life, can work productively and is able to make a contribution to his or her community”10 (world health organization, 2019). mental health can be “seen as a continuum, ranging from having good mental health to poor mental health and from having no diagnosis of mental illness to a diagnosis of severe mental illness”11 (mhfa england, 2016). people become ill when the stress they face becomes more than they can cope with12. qlegal’s approach to student mental health prior to the pandemic appleby and bourke (2014) assert that law students are a particularly ‘at risk’ group of mental ill health, stating that “[m]any law students experience elevated levels of emotional distress during their time at law school…[which]…are statistically significant predictors of serious mental illnesses”13. in our experience, postgraduate 10 world health organization (2019), mental health: fact sheet, p.1 [online] available at https://www.euro.who.int/__data/assets/pdf_file/0004/404851/mnh_factsheet_eng.pdf 11 mhfa england (2016), adult mhfa manual (publisher unknown), p.32. 12 ibid 11 p.44. the ‘stress vulnerability model’ was “proposed by zubin and spring in 1977. the idea behind it is that people become ill when the stress they face becomes more than they can cope with. also, people’s ability to deal with stress – their vulnerability – varies, so problems which one person may take in their stride might be enough to cause another person to become depressed or develop other mental health issues…”. 13 appleby, m. and bourke, j. (2014), promoting law student mental health literacy and wellbeing: a case study from the college of law, australia, ijcle vol 20, no 1 (2014), p.494 [online] available at https://www.northumbriajournals.co.uk/index.php/ijcle/article/view/18 https://www.euro.who.int/__data/assets/pdf_file/0004/404851/mnh_factsheet_eng.pdf https://www.northumbriajournals.co.uk/index.php/ijcle/article/view/18 practice report 114 law students may experience heightened levels of emotional distress in situations when they feel lacking in control, do not have a good support network or feel isolated, and are placing unreasonable expectations on themselves. we recognise that students’ ability to deal with these potentially stressful situations varies; situations which one student may be able to take in their stride, may cause another student to develop a diagnosable mental health condition. qlegal aims to prepare students for real life and we understand that “working as a law professional can be very stressful, with overwhelming workloads and emotionally challenging cases”14. we expect our students to meet the same high standards they would in legal practice, but we are cognisant that many students may not be prepared for the additional pressures this brings. it is a difficult balance to strike. we do not shield students from the demands of legal practice in the uk, but equip them with the tools to be able to thrive within it. specific techniques used to promote positive student mental health promoting positive student mental health and wellbeing has always been an important focus for qlegal, and two team members are trained mental health first aiders. our mental health strategy involves addressing the topic consistently throughout the programmes and embedding it within the student experience. 14 the law society (n.d.), stress and mental health [online] available at https://www.lawsociety.org.uk/career-advice/career-development/stress-and-mental-health https://www.lawsociety.org.uk/career-advice/career-development/stress-and-mental-health practice report 115 the commitment to the promotion of positive student mental health for our 2019-2020 cohort began at the student induction day; the focus of the event being mental health in the legal profession. the aim was to destigmatise the topic by addressing it headon. at the beginning of the year, students were given ‘journey guides’ and asked to reflect on and record how they were feeling about their goals, skills and the way they worked (among other things). they were then encouraged to review these at the end of the programmes, to consider the ways in which they had developed as a result of their qlegal experience. this process of reflection helps students to develop self-awareness and encourages them to take responsibility for their development, which in turn, nurtures their emotional intelligence. emotional intelligence and resilience are often cited as skills which employers consider valuable in junior lawyers15. our students are therefore encouraged to develop their resilience and their ability to adapt to new and unforeseen circumstances, or to cope with setbacks and frustrations. again, this concept is peppered throughout the qlegal training programme16. students received extensive training on how to give and receive feedback, and were encouraged to adopt a peer coaching approach to problem solving. by discussing 15 ibid 2, p.17. 16 for example, the qlegal manifesto which students have to agree to at their induction provides that “[students] agree to welcome constructive feedback and provide it when it is asked of [them]…[students] cultivate resilience by trying [their] best, and letting [themselves] be seen”. practice report 116 unforeseen problems or setbacks with their peers, students were able to form solid support networks with one another. coupled with these formal approaches to learning and development, care and attention has been paid to developing the ‘qlegal student experience’; that added social and emotional connection students feel with qlegal and their peers. “a positive student experience is defined by a high quality, modern teaching experience in an environment where students are made to feel safe and welcomed”17. the message that ‘qlegal is a big family’ and that everyone has something to contribute to it is constantly reinforced during the programmes, and after graduation with our alumni network. building on this, students were told to treat each other, and qlegal as colleagues. they were encouraged to shift their mind-set from seeing qlegal as part of their academic studies, to seeing it as an opportunity to gain real life, practical experience of the london legal market. students were held to high professional standards and were accountable to each other. qlegal modelled the professional behaviour we expected students to adopt. we knew that their qlegal experience may be challenging at times, but we wanted to give students an insight into the pressures of legal practice within the safe and supportive qlegal environment. 17 qs quacquarelli symonds (2020), qs international student survey: volume 3 defining the student experience p.8 [online] available at https://info.qs.com/rs/335-vin-535/images/qs_vol3international_student_survey_2020.pdf https://info.qs.com/rs/335-vin-535/images/qs_vol3-international_student_survey_2020.pdf https://info.qs.com/rs/335-vin-535/images/qs_vol3-international_student_survey_2020.pdf practice report 117 finally, the requirement for students to conduct their confidential case work in the qlegal office facilitated, albeit indirectly, the opportunity for students to interact with others on their programme and the qlegal team on an informal basis. we also operated an ‘open door policy’ during business hours. these serendipitous encounters contributed to a greater sense of inclusion and the creation of a collegiate atmosphere among students and the team. together, these initiatives aimed to equip students with the professional, personal and emotional skills necessary to succeed in their future careers. by educating students on the importance of developing self-awareness, emotional intelligence and resilience, and encouraging them to form good support networks with their peers, students were better placed to thrive when placed under pressure. part 2: the challenges faced, and concerns raised by qlegal’s students as a result of the pandemic homeward bound: qlegal’s immediate response to the pandemic in line with government guidelines for academic institutions, all qlegal operations were taken online from 17th march 2020. in the preceding weeks, our international students frequently shared their concerns with us. students were often worried about family members back home, they were upset that people in the uk were not taking practice report 118 the situation seriously enough, and were concerned that they may not make it to their home countries before international borders closed. the increasing levels of uncertainty placed greater emotional burdens on our students. mindful of this, qlegal began to formulate our response to the pandemic. in doing so, we were conscious of the need to provide students with regular, clear communication confirming what was happening, and what we expected of them. we acknowledged the uncertain times and encouraged students to remain positive and upbeat, so far as possible. our response required significant flexibility and creative thinking on the part of both qlegal and our students. two illustrative examples of the approach taken to facilitate the remainder of the activities, and the challenges faced as a result will be discussed before turning to the challenges faced more generally by qlegal students. ple/streetlab students students had delivered lessons to pupils in two local schools for two semesters, which would culminate in a ‘pitch it’ competition between the schools. the grand finale was due to take place in early march, at the city offices of a global organisation, in front of external judges. however, the organisation’s internal pandemic policy prevented them from hosting the event. an alternative venue could not be sourced in time, due to the schools’ internal policy for obtaining advanced parental/guardian consent to any off-site activities. practice report 119 the solution adopted was to run two separate competitions; one at each school. pupils would compete only against their fellow students, in front of a panel of qlegal judges. all qlegal streetlab students attended both competitions. there was widespread uncertainty in the uk regarding how organisations and individuals should be responding to the pandemic, and guidance from the government, within qmul, and within our external partners often changed with very little notice. consequently, the logistics for the event were only finalised in the days immediately preceding the competition. the uncertainty of whether the competition would take place (and if so, how) was a key concern for our students. knowing that students respond well to structure and routine, we increased the frequency of our communications with them. we organised additional in-person meetings and updated students regularly by email on the state of play. a big draw to the streetlab programme for qlegal students was the opportunity to attend the offices of the global organisation for the competition. students were disappointed at no longer being able to do so. we were conscious that these dashed hopes could lead to a general lack of motivation and feelings of failure for students. we addressed this in two ways: (1) by qlegal remaining positive and upbeat about the event, hoping that students would begin to mirror our behaviour; and (2) by encouraging the students to re-frame the pandemic as an opportunity to demonstrate their adaptability and resilience, skills which employers often consider lacking in junior lawyers. practice report 120 legal design students legal design is a methodology used by law firms to innovate, and put clients, and ultimate end-users, at the heart of legal service delivery. it is built on empathy and requires lawyers to research and create personas of the end-users, before designing and testing prototype solutions to meet end-users’ needs. the idea is that law should not be delivered in a way that only suits other lawyers. students had been working for the whole semester to prepare for their second legal design challenge, which required them to use design thinking methodology to redesign the qlegal legal design programme. in teams, they would pitch their ideas to a panel of external judges and the winning idea will be implemented by qlegal next year. the pitch was due to take place in late march, after the lockdown began in the uk. consequently, the competition took place remotely, with a mixture of external and qlegal judges. again, the students were disappointed that the competition could not take place in the circumstances they had initially envisaged. in response, we were keen to ensure that the online event had a real sense of occasion to it and reiterated to students just how seriously the judges were taking their responsibilities. the students rose to the challenge, despite the difficulties they faced during this time. the majority of the international students had returned home before the competition took place. further, at the time of the competition, one student had been admitted to hospital in india, and another was in self-isolation in kenya. notwithstanding this, practice report 121 the teams agreed that they all wanted to participate in the finale, and students from india, russia, cyprus and kenya all pulled together to deliver their pitches. the students’ enthusiasm and commitment to finishing their programme was a testament to their resilience. challenges and concerns across all qlegal programmes in addition to the specific challenges faced by students on these two programmes, there were a number of difficulties which were experienced by students across all programmes. foreseeing that these issues could be of great concern to students, we were keen to adopt an empathetic, yet professional manner when communicating with students. these challenges faced by students across all programmes fell broadly into two categories. availability issues although in theory the adoption of technology gave students the ability to work anytime, anywhere, the requirement that students worked in teams to complete their work often created challenges when working remotely. some students were unavailable to work on their case for up to 48 hours as they made the journey back to their home country. other international students stayed in london but changed their living arrangements. consequently, these students often found their study routine disrupted by their newfound family commitments. practice report 122 anticipating that the availability of their teammates and coordinating work across time-zones may have proved frustrating for some students, we were keen to encourage students to be understanding of each other’s circumstances and exercise patience. although qlegal expects students to meet their deadlines, a degree of flexibility was displayed, especially to students on the legal advisory programme (who worked in pairs, meaning the unavailability of one student placed a heavier workload burden on the other). technology issues despite frequently being described as ‘digital natives’ because of their familiarity with, and access to, technology, some students still experienced occasional difficulties using the new platforms adopted. unreliable internet connections often prohibited the use of cameras on video calls. further, some students appeared hesitant, at least at first, to use their camera when attending calls with us: finding this new experience a little daunting. again, we encouraged students to be patient with each other, and qlegal while we all familiarised ourselves with the new technology. we shared the difficulties we had experienced in an attempt to demonstrate that we were ‘all in this together’ as part of a larger qlegal team. additional concerns raised by international students practice report 123 the global nature of the health crisis meant that students’ concerns for family members in other parts of the world began long before the uk lockdown. students began confiding in the qlegal team about their concerns for family members back home and began making arrangements to return to their home countries before the government closed international borders. the practicalities involved in securing their return home played on the minds of many students. but the decision whether or not to return to their home country was not always an easy one. students were often conflicted. some students were keen to finish the year in london, gaining as much exposure to the local culture and employers as possible. others continued to embrace the collegiate environment fostered by qlegal and its students, not wanting their academic and social experience to fizzle out when their fellow students began to leave campus. there was clear tension between the pull to return home, and the desire to remain in london until the end of term. whether students remained in london or returned home, they experienced a shakeup in their network of friends and support. with their fellow students relocating with little warning, students often found themselves without a nearby support network, at least in the days immediately following the 17th march. qlegal check-in sessions one international student (who had chosen to stay in london) confided that they were finding things more difficult given the lack of contact they were having with their fellow students, as many close friends were now abroad. they also noted that they practice report 124 did not want to approach tutors and academic staff to discuss the course and next steps generally, for fear of “being a burden”. in response, we introduced informal online check-in sessions for students with a member of the qlegal team. the optional sessions ran three days a week between may and july 2020. the aim was to give students the opportunity to talk to a member of the team in a confidential, but informal setting; whether about their programmes, careers, or just to tell us how they were spending their time. sessions were drop-in, on a first-come basis, for 15 minutes and took place using microsoft teams. student take-up of the check-in sessions was lower than anticipated. possible explanations could reasonably include: students’ attention already being elsewhere (such as on their dissertation or employment); availability issues; or lack of promotion of the sessions. the students who did use the service appeared to find it useful, occasionally having a further check-in with another member of the team a few weeks later. the time commitment involved in organising and attending the check-in sessions was minimal and despite the small take up from students, the initiative was considered a success and will be repeated next year. concerns shared with domestic students international students also shared a number of additional concerns with domestic students, the most pressing one being the impact that the pandemic would have on practice report 125 their academic achievements and career prospects. the removal of the structure and routine that classroom-based learning provides students, along with the increased requirement for students to learn independently were also concerns for all students. to combat this, we increased the frequency of our communications with students, ensuring that clear instructions were given regarding the opportunities available to, and responsibilities placed on students. reflections on our experience the pandemic placed a greater emotional burden on all students. widespread uncertainty caused students to feel a lack of control, cancelled in-person events led to dashed hopes, and difficulties using new technology to communicate with teammates across time-zones proved frustrating. our strategy to minimise the effect that these concerns could have on our students was two-fold. firstly, we increased the level of communication we had with students, making sure we communicated our instructions and expectations clearly and offering additional opportunities to meet with students online. secondly, we always remained upbeat and encouraged students to re-frame the pandemic as an excellent opportunity for them to demonstrate their adaptability and resilience. part 3: maximising student engagement and promoting positive student mental health in an online classroom environment practice report 126 what we did the legal design and streetlab competitions were stand-alone events involving students on specific programmes. when the pandemic hit, two further (optional) programme-wide opportunities were outstanding: (1) a cv workshop: training students how to make the most of their qlegal experience on their cv; and (2) the graduation ceremony: where students celebrated their qlegal successes and began the transition to qlegal alumni. we decided early on that the students should not miss out on these opportunities and that we would offer them online18. however, we knew that just having the technology in place to facilitate online learning would not be enough, and careful consideration was given to how we would encourage students to engage with the technology and opportunities provided. we curated the events with a view to maximising student engagement and interaction. the events took place in early june, at times of the day which would accommodate maximum numbers of students across various time-zones. of the 134 students on our programmes, 18 students attended the cv workshop and 24 the graduation ceremony. of the students who did attend, the vast majority were international students, many of whom had returned to their home country but were keen to see and interact with their fellow students again. we asked students to confirm where they were joining 18 we used blackboard collaborate, a virtual classroom solution. practice report 127 from, which broke the ice and demonstrated the global nature of their student network and the ability of technology to bridge global borders, thereby allowing students to feel a sense of connection to each other. specific care and attention was given to ensuring that the graduation ceremony was viewed as, and felt like a party; and not simply another webinar. we provided students with clear instructions about the event; setting the agenda and our expectations of them. to create a sense of occasion, students were encouraged to ‘dress up’ and have a drink close by to toast their cohort. students really embraced the positive and playful tone of the event, and our preparations paid dividends. feedback we received from students regularly cited the personal celebration of the achievements of each student as a significant factor in making the event “enjoyable and memorable”, allowing students to end their experience on a high. reflections on our experience creating and delivering an engaging online cle learning environment takes a lot of effort. the way in which all aspects of the qlegal programmes were delivered was reexamined and re-imagined, to ensure that students were still being given the best possible experience online. the online learning experience can feel dehumanising and isolating to students. it is important to engage with students meaningfully and to encourage them to bring aspects of their personality to the session. for example, at the graduation, students practice report 128 were asked to share answers to personal questions such as ‘who do they look up to?’. this was done to encourage students to bond in this new online environment. less is more when it comes to the length and frequency of online learning activities: our sessions were capped at 90 minutes, with a short screen break. each session was curated to meaningfully add to the students’ development, and sessions were well structured and interactive. they included small group discussions, practical exercises and made full use of the instant messaging facility. the aim was to build students’ trust, and ultimately their engagement in the online learning process. if students had initially been hesitant to speak on camera at the start of the pandemic, or saw technology as a barrier to natural discussion, they were now more open to, and confident using their cameras. the possible perceived safety of being behind a computer screen gave some students increased confidence to contribute to group discussions. we noticed that certain international students whose behaviour had been extremely professional and reserved throughout their experience now displayed more playful and personable attributes. in these times of instability and uncertainty, students have greater independence over their studies and how they spend their time. the purpose and benefits of each online event must be clearly publicised in advance to encourage and maximise attendance. the low attendance rate at the cv workshop and graduation ceremony was disappointing and suggests a shift in behaviour by students, who were under increased pressure and wanted to focus on their credit bearing modules rather than practice report 129 their extracurricular activities. in future, extra effort will be made to clearly advertise the benefits that students will obtain by attending optional online events. the ideas and techniques adopted in these examples were not novel; it is anticipated many, if not all, were being adopted by cle providers across the world. however, what made them a success was the effort we made in ensuring that the teaching was deployed with care; in a personal, individualistic way. when curating the online events, we were conscious to continually provide students with sufficient information and opportunities to help them regain control over their studies. we remained upbeat throughout and encouraged students to do the same. it was hoped that if students felt positive about their studies and secure within their support networks, they would be better placed to deal with the increased pressure caused by the pandemic. part 4: steps qlegal will take to monitor and address the impact that postpandemic online delivery has on students having worked with international postgraduate law students for the past six years, qlegal has a good understanding of the needs of our students and the specific concerns they have over and above many domestic ones. the focus on delivering the ‘qlegal student experience’, and a holistic approach to student development, breaks down cultural barriers, and builds cohorts of close-knit students armed with the practice report 130 practical skills and emotional intelligence needed when entering the legal job market. this, coupled with a shared desire for constant innovation and growth, makes qlegal well placed to adapt its offerings, where necessary, to meet the needs of students in this pandemic era. the steps we will take in the 2020-2021 academic year to monitor and address the pandemic’s impact on student mental health fall into three broad categories. building online engagement as with many, if not all other cle providers, qlegal will deliver cle using blended learning in the 2020-2021 academic year, combining online and in-person activities. we will deliver cle using a flipped classroom approach. students will be expected to watch training videos introducing them to the topics, and will then attend live webinars where they can discuss those topics in more detail with qlegal and their peers. the techniques used to deliver quality, personal online learning opportunities to cle students last year will continue to be deployed across programmes. in doing so, it is anticipated that students will be proactively encouraged “to become fully invested in the online learning experience and to enthusiastically embrace it as a crucial component of their higher education experience”19 (qs quacquarelli symonds, 2020). 19 qs quacquarelli symonds (2020), qs stars rating system – how to access your university’s online learning capabilities (2020) p.10 [online] available at https://www.qs.com/portfolio-items/how-toassess-your-universitys-online-learning-capabilities/ https://www.qs.com/portfolio-items/how-to-assess-your-universitys-online-learning-capabilities/ https://www.qs.com/portfolio-items/how-to-assess-your-universitys-online-learning-capabilities/ practice report 131 building resilience and positive wellbeing mental health education and support will continue to be embedded throughout the programmes largely in the manner adopted previously. additional training and guidance will be provided on how to stay safe online and the potential detrimental impact overusing technology can have on mental health and wellbeing. as part of the reflective journal students are required to keep, students will be asked to complete a short (anonymous) survey recording how they feel about the future, the support they are receiving from the qlegal team and peers, and their attitudes towards online learning (among other things). the survey will be completed at the start and end of the academic year for students to monitor their progress during the programme. the results will also be used by qlegal to assess the effectiveness of the offering to students, specifically in the context of online delivery. the drop-in, confidential check-in sessions will be offered in the format trialled earlier this year, but with increased publicity to students at the start of the year. building student networks to compensate for the lack of in-person opportunities students will have to socialise with each other, qlegal will host additional weekly online events for students across all programmes. students with a live case or ple project will be required to attend weekly breakfast meetings. they will reflect on, and share their experience on their cases, thereby encouraging a peer coaching approach to student development. in practice report 132 doing so, students will expand their friendship and support network, and gain a sense of ownership and belonging within the qlegal community. all students will also have the option of joining an informal online ‘qlegal friday social’. students and the qlegal team will share photographs of themselves as a baby and will compete to guess who each photo belongs to. they will be encouraged to show their fellow students an object which says something about their personality and contribute a recipe for inclusion in a qlegal international recipe book. the aim of these activities is to encourage students to really get to know one another and to build a collegiate atmosphere. neither of these scheduled events will make up for the serendipitous nature of students running in to one another in the qlegal office. however, they are a way of encouraging students to build their personal friendship and support networks and to feel part of qlegal, with the ultimate aim of preventing student isolation. conclusion it is clear that the pandemic has placed unprecedented levels of mental health burden on all students, not just international ones studying postgraduate law. students are faced with a new way of learning, uncertain futures and increased pressures. international students also experience additional concerns as a result of being away from home and learning in a new language. practice report 133 if these pressures become greater than an individual can cope with, they have the ability to trigger a diagnosable mental illness. accordingly, it is important that steps are taken to minimise these pressures, and simultaneously increase students’ ability to cope in times of extreme pressure, thereby seeking to prevent the occurrence of mental ill health. the initiatives qlegal adopt have the dual aims of delivering quality cle programmes to postgraduate students, and facilitating their personal, professional and emotional development. we equip students with the skills and resilience to adapt to these unprecedented times. extra care will be taken to provide clear and bounded instructions for students, to develop a structure and routine around the online learning environment. students will be encouraged to build their own support networks and adopt a peer coaching approach to problem solving. finally, qlegal will continue to promote the pandemic as an opportunity for students to demonstrate their adaptability and ability to persevere in the face of adversity. none of these ideas may, of themselves, seem novel or significant. however, by deploying these ideas consistently throughout the qlegal programmes, it is hoped that students will experience a reduction in the external pressures they face, while simultaneously developing an increasing tolerance to such pressure. as a result, students will be better placed to thrive in the highly demanding legal profession. we would encourage other providers of cle to consider the ways in which they can also practice report 134 encourage their students to thrive within this increasingly uncertain and pressurised environment. it is also important to remember that these unprecedented times bring uncertainty for everyone. although the strategies and initiatives discussed in this paper may reflect our current conclusions on the best way forward for delivering cle to our 2020-2021 cohort, all students offerings should remain flexible and adaptable, being tailored to the specific needs of the students at any given point in time. qlegal will have open channels of communication with students and will welcome feedback on the manner in which they are taught, with offerings constantly reviewed and updated to better suit the present needs of our students. we would encourage other cle providers to do the same. the rise and rise of tribunals – engaging law students in tribunal advocacy reviewed article: teaching and learning in clinic the rise and rise of tribunals – engaging law students in tribunal advocacy shaun mccarthy, university of newcastle, australia shaun.mccarthy@newcastle.edu.au abstract over the past 30 years there has been a rise in the determination of legal disputes in non-adversarial and less adversarial forums such as tribunals. tribunals deal with an increasing diversity of legal matters including cases of anti-discrimination, consumer claims and reviewing executive governmental decisions. traditionally, australian law schools and higher education practical legal training providers focus on the development of advocacy skills in an adversarial context set in a courtroom. law students often study compulsory doctrinal courses solely from an adversarial court perspective. little emphasis is placed on developing skills and knowledge in the practice and procedure of tribunals despite entry level lawyers appearing more frequently in such forums. this paper argues that there is a need for law students to engage in advocacy experiences in tribunal settings as distinct from the courtroom so they can acquire and foster skills to appear in such non-adversarial and less adversarial forums when in legal practice. by engaging expert witnesses, such as medical experts, in simulated tribunal hearings the realism of the advocacy experience for the student is heightened. 42 mailto:shaun.mccarthy@newcastle.edu.au the rise of tribunals in the australian legal system over the past thirty years tribunals have become a distinctive feature in the australian civil legal landscape. there are tribunals operating in all australian states and territories and at the commonwealth level. they deal with a variety of matters including as primary decision makers in cases of anti-discrimination, consumer claims, mental health, tenancy, professional discipline and guardianship. they also deal with the review of executive governmental decisions such as the refusal to issue migration visas, claims for asylum protection, access to public documents and licensing cases. tribunals are able to draw on legal and non-legal members who have particular expertise in a variety of fields and are designed to be more accessible and ‘user friendly’ for consumers than the formal court system. tribunals deal with an ever increasing number of civil disputes. in 2011/2012 the nsw consumer trader and tenancy tribunal, a tribunal which made decisions regarding a diverse range of consumer disputes, received around 65,000 applications for determination and held over 76,000 hearings across nsw.1 this number represented around a 10% increase in applications lodged during the previous year. similarly, in 2011/2012 the victorian civil and administrative tribunal recorded a sizeable increase in applications 1 nsw consumer, trader and tenancy tribunal annual report 2011-2012. the tribunal received 58,808 applications during 2010-2011 as reported in the nsw consumer, trader and tenancy tribunal annual report 2010-2011. the consumer, trader and tenancy tribunal has been replaced by the new south wales civil and administrative tribunal, consumer and commercial division, from 1 january 2014. 43 lodged over the previous year.2 further, the rise in the numbers and types of tribunals has seen the establishment of a peak body, the council of australasian tribunals, which is designed to facilitate the dissemination of information and views between tribunals.3 tribunals have been described as bodies which are court substitutes that carry out a mix of judicial and non-judicial functions.4 while tribunals are sometimes referred to as being inquisitorial in nature, there is some resistance to adopting such a characterisation for australian tribunals. bedford and creyke contend that australian tribunals should not be categorised as inquisitorial in their operation as they do not possess all of the features of a typical civil law inquisitorial body and exhibit a range of practice approaches from the heavily investigative to adversarial.5 king, freiberg, batagol and hyams opine that “the variability of australian tribunals’ compliance with adversarial, non-adversarial and inquisitorial paradigms renders it difficult to categorise tribunals as one or the other.”6 they employ the term ‘nonadversarial justice’ when describing the role of administrative tribunals in the australian legal framework. 2 victorian civil and administrative tribunal annual report 2011-2012. 3 council of australasian tribunals, memorandum of objects of state and territory chapters, www.coat.gov.au/about/constitution-and-memorandum-of-objects.html, accessed 28 august 2013. 4 n. rees, procedure and evidence in court substitute tribunals, 28 australian bar review, 2006, 41. 5 n. bedford and r. creyke, inquisitorial processes in australian tribunals, the australian institute of judicial administration, melbourne, 2006, 18. 6 m. king, a. freiberg, b. batagol, r. hyams, non-adversarial justice, federation press, leichhardt, 2009, 198. 44 http://www.coat.gov.au/about/constitution-and-memorandum-of-objects.html although tribunals vary in the way that their proceedings are conducted, they can and do differ from a traditional adversarial approach. in some tribunals its membership actively question witnesses and parties attending a hearing. this can involve the member informing the parties as to the procedure that the hearing will follow, identifying the key issues and ensuring that the parties have a reasonable opportunity to present their case.7 legislators have armed tribunals with the power to operate in a quick, informal, cheap and flexible fashion, 8 while many tribunals are not bound by the rules of evidence.9 this does not necessarily mean that the rules of evidence are not to be taken into account by a tribunal in determining whether or not information or a document is admissible, but there is no strict application of the evidentiary rules in some tribunal proceedings. many tribunals can inform themselves on any matter in the manner that they think fit and the procedure by which a tribunal conducts its proceedings can vary and does not necessarily follow a set or rigid procedure.10 while a tribunal can refuse to allow an applicant or party to be legally represented in the proceedings,11 legal practitioners can seek leave to appear for parties in some tribunal hearings and some tribunals do not place 7 statutory provisions dealing with this include s38(5) civil and administrative tribunal act 2013 (nsw). 8 s36(1) civil and administrative tribunal act. 9 s38(2) civil and administrative tribunal act, s151 mental health act 2007 (nsw), s98 victorian civil and administrative tribunal act 1998 (vic), s311e migration act 1958 (cth). 10 s38 civil and administrative tribunal act, s62 victorian civil and administrative tribunal act, s311e migration act. 11 s366b migration act. 45 restrictions at all on the appearance of lawyers.12 sometimes there can be limited or no tribunal practice directions or practice notes so it can be difficult for a lawyer inexperienced in appearing before a particular tribunal or in tribunal jurisdictions generally to have a proper understanding as to the way in which a tribunal hearing will likely be conducted. further, while a lawyer might not be appearing in an actual tribunal hearing they can be called upon to advise a client as to the procedure the tribunal will likely adopt to deal with an application, the format of the hearing, anticipate the questions that will be asked and generally advise the client as to the best way to prepare for the hearing. in order for a lawyer to professionally advise a client about tribunal processes or appear in tribunal proceedings they need to have sufficient familiarity with a tribunal’s non-adversarial and less adversarial processes and the manner in which tribunals conduct their proceedings and make determinations. law student advocacy skills training in the advocacy training of law students, non-adversarial and inquisitorial approaches and the use of tribunal decisions can take a ‘back seat’ to formal 12 s45 civil and administrative tribunal act, s154 mental health act, s62 victorian civil and administrative tribunal act. it is difficult to obtain details as to the precise number of legal representatives appearing in tribunal proceedings. in the nsw guardianship tribunal annual report 2010-2011there were 1,311 procedural hearings which included applications for leave for a party to be legally represented. in 2011/12 the nsw mental health review tribunal conducted 13,501mental health inquiries where a significant number of persons appearing at the inquiry had a legal practitioner representing them. section 32 administrative appeals tribunal act 1975 (cth) allows legal representation of a party without having to seek leave of the tribunal. 46 trial and appellate court cases. moot court hearings typically involve advocacy in appellate jurisdictions and trial hearings and there is little focus on developing advocacy skills in the informality and flexibility of tribunal proceedings. in criminal law and procedure courses students become familiar with the formal prosecution requirements when a defendant is charged by the police and the case is pursued through the criminal justice system. in their law degree students might take part in a court observation program where they see first-hand the role of legal practitioners appearing in a defended criminal hearing. this entails a prosecutor and defence lawyer undertaking most of the questioning of witnesses in the hearing or trial while the judicial officer presiding over the case generally does not pursue detailed questioning of witnesses. students observe there are formal procedures in place where witnesses give evidence in examination in chief and cross examination, see the rigid structure of criminal proceedings and the strict application of the rules of evidence. there are similar procedures in many civil court hearings where there is heavy use of court pleadings, the application of the formal evidentiary rules and interlocutory procedures such as the discovery of documents. by contrast, as many tribunals are not bound by the rules of evidence, operate in an informal and flexible manner and the role of the legal representative and decision maker can differ from adversarial court hearings, law students need to have opportunities to develop advocacy skills and specialised knowledge in tribunal forums. 47 simulations in the law school curriculum experiential learning is considered to be a vital component in the learning process of the practice of law.13 one type of experiential learning used in law schools is simulation. simulations can involve a student taking on the role of a lawyer in a hypothetical case in a controlled situation under the proper supervision of an experienced academic or lawyer.14 ferber employs the term simulation in circumstances where a student is required to perform a lawyering activity utilising a mock scenario which matches a real-life situation and there is sufficient time allocated for the student to perform the learning activity.15 an arranged simulated hearing provides an opportunity for a student to receive constructive feedback in a timely manner and to reflect on their advocacy performance. the use of student reflection and debriefing in simulations has been referred to in a recent study of clinical legal education in australian law schools.16 simulations can engage students in active learning by developing their problem solving skills and strategies to deal with client matters. chavkin promotes the merits of simulation as an important component in the 13 a. chay and f. gibson, excellence and innovation in legal education, clinical legal education and practical legal training, lexis nexis butterworths, 2011, chapter 18, 502. 14 e. s. milstein, clinical legal education in the united states: in-house clinics, externships and simulations, journal of legal education, vol 51, no 3, september 2001, 376. 15 p.s. ferber, adult learning and simulations – designing simulations to educate lawyers, 9 clinical law review, 418. 16 a. evans, a. cody, a. copeland, j. giddings, m.a. noone and s. rice, best practices australian clinical legal education, september 2012, www.cald.asn.au/assets/lists/resources/best_practices_australian_clinical_legal_education_sept_20 12.pdf, 13. 48 development of persuasive advocacy skills in students. he argues that students should participate in simulated advocacy cases where they can build their skills and develop values in a setting where no one is damaged by their errors while at the same time providing an opportunity for students to engage in some risks which they would not ordinarily be able to experience if the student was formally acting for a ‘live’ client and their client’s interests could potentially be jeopardised.17 stuckey maintains that simulated hearings enable students to gain insight into their personal and professional strengths and weaknesses, enhance their skills in identifying and dealing with professional conduct dilemmas and foster the development of the necessary skills and values in a legal professional.18 a simulated hearing can require a student to make the connections between their acquired doctrinal knowledge and practical reality which is an essential skill in thinking as a lawyer.19 coupled with this, well-devised simulations provide opportunities for students to be exposed to professional values, develop effective 17 d. chavkin, experience is the only teacher: meeting the challenge of the carnegie foundation report, paper presented at the newcastle law school, university of newcastle nsw, 9 august 2007 48-49 as cited in j. anderson, identification evidence – proof and doubt: an experiential teaching and learning strategy to promote deep analytical understanding combined with incremental development of practical legal skills, journal of the australasian law teachers association, 2008, vol 1, 127. 18 r. stuckey and others, best practices for legal education, clinical legal education association, 2007, 135. 19 c.k. gunsalus and j.s. beckett, playing doctor, playing lawyer: interdisciplinary simulations, 14 clinical law review, 2008, 444. see also r. park in appropriate methods for the teaching of legal skills in practical training courses, journal of professional legal education, 1990, vol 8, no 2, 177 who argues that simulations provide a realistic place to assess competency. 49 communication and advocacy skills in a specialised forum and participate in collaborative student settings.20 the use of group simulated hearings gives academics and practical legal training providers the opportunity to provide advocacy experiences to a large number of students without significant resource implications. it is highly unlikely that large numbers of students could have such advocacy experiences with ‘live’ clients given the number of clients necessary to replicate the simulation and the legislative and ethical restrictions of student appearances in legal proceedings. group simulations also allow students to develop their advocacy skills within a definite timeframe which coincides with the running of the law course. as noted, a focus of australian law schools and practical legal training courses has been the development of advocacy skills in simulated adversarial court trials and appellate moot courts. these hearings can involve students, academics, clinical supervisors and others playing the role of a lay witness in a trial being questioned by law students or they can be set in an appellate jurisdiction where argument and submissions are made to the bench. the format is typically adversarial in nature and follows a formal and expected procedure with limited flexibility. students should also be exposed to advocacy experiences in non-adversarial, inquisitorial and less adversarial 20 k. barton, p. mckellar, p. maharg, authentic fictions: simulation, professionalism and legal learning, 14 clinical law review, 2007-2008, 184. 50 hearings set in tribunal forums given the increasing likelihood that lawyers will have contact with clients having matters in those jurisdictions. in fact, entry level lawyers are probably less likely to be appearing in appellate jurisdictions as opposed to tribunals and less adversarial forums. simulated mental health tribunal hearings the mental health tribunals operating in australian jurisdictions are independent statutory bodies enacted under legislation which review the decisions made by treating health professionals regarding the involuntary detention of persons in hospital for their treatment and care. the tribunal is required to determine, on the balance of probabilities, whether the detained person has a serious mental illness which causes harm to the person or to others or both and should be detained in hospital.21 the tribunal is a ‘check and balance’ on the decision of a health professional to detain a person against their will. it has the legal authority to make orders to continue the involuntary detention of a person in hospital.22 simulated mental health tribunal hearings form part of the practical legal education course at newcastle law school, nsw. they are conducted in a final year clinical module which runs over four weeks with seminars, group work and culminating in simulated tribunal hearings. the seminars provide 21 ch 6 mental health act (nsw), part 4, mental health act 1986 (vic), part 6, mental health act 1996 (wa). 22 s37 mental health act (nsw), s36 mental health act (vic), part 6, mental health act (wa). 51 students with substantive knowledge in mental health law, an overview of specialised tribunals and in-depth analysis of the practices and procedures of tribunals. an interdisciplinary approach is adopted in the module with a health professional being invited to speak to the class outlining their perspectives of the tribunal process and the challenges of maintaining a professional and supportive relationship with their patient following a contested tribunal hearing where they give evidence which the patient disputes. the module has a number of primary learning objectives. students develop detailed knowledge in a specialised area of law while critically evaluating the access to justice issues which can arise for persons with a serious mental disability. other objectives include students developing client centred lawyering approaches, fostering strong communication and advocacy skills in an inquisitorial context, generating strategies to deal with issues arising in a hearing and effectively collaborating with peers. the hearings are set in a mental health tribunal forum so as to give students the opportunity in a short timeframe to develop their knowledge and skills in an area of law that is not overly complex but is challenging. lawyers can be required in legal practice to be across a previously unfamiliar area of law within a limited period of time to meet the needs of their client. mental health tribunal hearings are typically around 20-30 minutes in duration and can be modified so that groups of students have specific advocacy roles in the 52 hearings. this lengthens the simulated hearing time to around 50 minutes. while the hearings are informal in nature they can vary from being less adversarial to more adversarial depending on the evidence, the approaches and personal style of the participants and the composition of the tribunal. to make a tribunal simulation as realistic as possible it should involve participants who are familiar with its particular procedures and practices. building on links between the university of newcastle legal centre23 and the local area health service, psychiatric registrars in training are invited to take part in the simulated hearings. the involvement of the registrars is promoted by the registrars’ teaching health professionals as an opportunity to enhance their skills in giving evidence at tribunal hearings through responding to vigorous questioning by eager law students. having psychiatric registrars, who have expertise in the diagnosis and treatment of mental illnesses, appear as witnesses makes a simulated mental health tribunal hearing more realistic. their involvement heightens the preparedness of students as they are required to question a real expert and need to be sufficiently familiar with the law and tribunal procedure so as to avoid embarrassment. as gunsalus and beckett point out “it seems to help our students focus on the fundamentals in ways that simulations involving only law students do not. that is, we find that 23 the university of newcastle legal centre is conducted by the newcastle law school and is an intensive clinical placement site for law students. 53 the introduction of complexity to the exercises by adding role-playing clients from other disciplines advances the acquisition of fundamental skills, rather than distracting from them.”24 the simulated mental health tribunal also provides an opportunity for students to focus on the workings of a specialised tribunal which makes decisions directly affecting the liberty of individuals in a very obvious way. students in the module have opportunities to consider the barriers that people with a serious mental illness may face in advocating for their rights and interests and the important role of a lawyer in that process. there a number of distinctive learning opportunities which are offered by the use of a specialised interdisciplinary tribunal. bliss, caley and pettignano refer to the benefits provided by interdisciplinary education as including “developing respect and appreciation among the disciplines, teaching team work and collaboration, developing a knowledge-base about other disciplines, teaching communication among disciplines, and teaching other disciplines’ rules, beliefs, and ethical principles.” 25 24 gunsalus and beckett, n19, 441-442. 25 l. bliss, s. caley and r pettignano, a model for interdisciplinary clinical education: medical and legal professionals learning and working together to promote public health, 18 international journal of clinical legal education, 153. at 155 the authors refer to the added benefit that students become familiar with the specific terminology used by health professionals. 54 additionally, these interdisciplinary approaches are important for new lawyers as they are becoming much more likely to interact with professionals and experts outside the area of law placing their learning in context.26 prior to participating in the simulated hearings arrangements are made for students to attend and observe a ‘real’ mental health review tribunal hearing at a local psychiatric hospital accompanied by a legal aid solicitor. this provides students with the opportunity to observe a live tribunal in operation and consider the manner and procedure of the tribunal hearing before participating in the simulated hearings. students accompany the solicitor to the hospital where they meet with the client and observe a client interview. they can then critically reflect on the challenges posed for a lawyer in taking instructions where their client may lack capacity or there is a doubt about their capacity. students can sometimes be troubled by what they observe. for example, one student who saw a patient in a catatonic state later reflected on the experience causing them some disquiet. an important aspect of the observation program is that there is a proper briefing and debriefing with students both before and following the tribunal hearing which is provided by the solicitor. prior to the hospital visit students discuss in the seminars the issues and tensions which might arise during a client interview in a psychiatric hospital, the laws regarding access to clinical records, the work of 26 k.d. connolly, elucidating the elephant: interdisciplinary law school classes, washington university journal of law and policy, vol 11, 14. 55 the health professionals in hospital, the role of the lawyer appearing at the mental health tribunal hearing and the tribunal processes. a number of mock scenarios have been developed for the module following extensive discussions with mental health professionals. these scenarios consist of a medical report from a registrar who then appears for questioning at the simulated hearing. the report is provided to students a week prior to the hearing detailing the facts that the registrar is relying upon to support their case for the subject person to remain in hospital as an involuntary patient. an outline of the client’s instructions is given to students. the exercise is based on a client who has the mental capacity to provide instructions notwithstanding their involuntary hospitalisation. students are supplied with updated facts about the case twenty minutes prior to each hearing in a time frame which mirrors what might happen in legal practice when a lawyer meets with their client just prior to their tribunal appearance and receives further instructions. while the registrar’s report is detailed as to the person’s mental health condition and the reasons that the person should remain in hospital against their will, the problem is scripted so that there is sufficient uncertainty about some facts to give students ample opportunity to question the registrar about the basis for their opinion. further, the scenario and client’s instructions are designed so that there are conflicting views between the client and the registrar which ensures a contested hearing. 56 the simulated tribunal is required to determine whether the subject person should continue to remain as an involuntary patient in hospital or be discharged. the client’s instruction to the students is that they oppose the application for their continuing detention. students are divided into groups of five or six with each student allocated a role for the hearing and one of the students playing the role of the client. students are required to deliver opening and closing addresses, cross examine the registrar on their report and question their client. the client is required to answer questions in accordance with the set instructions provided when being questioned by the student lawyers and tribunal members. the student lawyers and client are able to ‘make-up’ additional facts provided that they are consistent with the set instructions. students are to seek instructions from their client when necessary. time limits are placed on each advocacy role. students are informed that the tribunal hearings will be conducted in a way that the tribunal thinks fit and it should be expected that the hearings will be conducted informally with a flexible procedure. the tribunal members act in an interventionist way by asking questions of the witnesses and legal representatives and direct the procedure of the hearings. at the end of each hearing the simulated tribunal makes an order regarding the application for detention giving short reasons for its decision. immediate general feedback is given to the group and individualised student feedback is provided in some circumstances. 57 following the hearings students are required to submit a reflective piece of around 1,000 words reflecting on their performance in the simulated hearing, the effectiveness of their group in advocating for their client and their views of the tribunal as a mechanism to make legal decisions. the strengths and weaknesses of the client’s case are identified by the student together with an analysis as to the effectiveness of their group’s questioning and whether in hindsight they should have asked additional questions or not have pursued a particular line of questioning. students are also required to discuss the way in which the tribunal conducted the hearing, how they adapted to the tribunal procedure and provide a comparison of the non-adversarial or less adversarial approach of the tribunal with their experiences of the traditional adversarial court model. any ethical and professional responsibility issues which arise in the simulated hearing are to be discussed and analysed. students are assessed on a pass/fail basis as to whether they have met the course objectives at a competent level. it is acknowledged that there are limitations in relying upon student reflections as a basis for evaluating this distinctive advocacy experience. reflections are not de-identified and sometimes students can tailor their responses in line with what they perceive the lecturer wishes to hear as their written piece forms part of the assessment regime in the course. nevertheless, they do provide a source of primary material which can be used in a limited way as an evaluation of the tribunal activity itself and flag areas 58 for further evaluation and research. the student reflections frequently refer to the difficulty in adapting to the informality and flexibility of less adversarial hearings and it is intended to undertake further evaluation of this element. they also refer to the specific challenges of appearing in a tribunal jurisdiction and its less adversarial approach and in working with a simulated client. an on-line survey is to be conducted with the student cohort in an anonymous way to obtain qualitative and quantitative responses to set questions about the tribunal experience taking into account these views. further, students who have appeared in a simulated tribunal hearing will be invited to participate in a focus group and in its small group discussions respond to more detailed questions posed by a facilitator about the advocacy experience. the survey and focus group responses should enable common views and opinions about the learning activity to be identified and noted. student reflections on the tribunal experience one of the constant statements made by students in their reflections is the challenge of appearing in a jurisdiction which is not bound by the rules of evidence. in doing so students often make reference to their exposure of adversarial legal proceedings where there is a strict application of the evidentiary rules. in one simulated hearing the tribunal admitted evidence of a violent incident where the key witness is (deliberately) not available to attend the hearing for questioning. while students objected to a description 59 of the incident being admitted into evidence the tribunal decided to admit the evidence. in an adversarial court hearing an outline of the incident would likely have been ruled inadmissible on the basis that it is hearsay. once the details of the incident was admitted into evidence the students showed difficulty in arguing the weight which should be attached to this piece of evidence and how the tribunal should view the evidence. conversely, some students failed to draw on their prior study of evidence law to object to technically inadmissible conversations such as privileged communications between the client and lawyer. a tribunal hearing set late in the degree requires students to draw on their earlier studies in law so that they can be effective advocates for their client. the informal procedure of the tribunal hearing troubled students. the uncertainty as to what evidence might be admitted into the hearing unsettled a number of students. a typical student comment: ‘i was expecting the tribunal to be informal but i don’t think i fully grasped what that would mean in a legal context, where the majority of what i have learnt and experienced has been heavily based on structure and process.’ the flexible approach of the tribunal hearing posed challenges for students. students had prepared prior to the hearing a list of questions to be asked but the tribunal interrupted their lines of questioning forcing students to move 60 away from their scripted questions. in informal group discussions a student reflected that: ‘i learnt much more about advocacy in terms of being flexible and being able to move away from your set questions as well as what it is like to have things not go your own way.’ a simulated hearing using expert witnesses is likely to have an impact on a student’s approach and performance. the daunting task of questioning a medical registrar was referred to by a number of students. students found the questioning much more taxing and challenging than they had anticipated despite extensive preparation. some expressed the view that questioning the registrar was intimidating and that the tribunal had placed undue weight on the answers given by the doctor. typical student comments included: ‘i found it off putting and i got frustrated as i had prepared the questions and the doctor did not give the answers that i wanted. i understand that this would happen in a real hearing though.’ ‘at times i think we all felt very stonewalled and didn’t expect the psychiatrist to pre-empt our questions as much as she did. i did not expect the doctor to be able to have an answer for every question and that threw me a bit, though i know in real life this would happen. reflecting on the hearing we entered it with unrealistic expectations. we became fixed on trying to get the 61 psychiatrist to admit she might be wrong, when we should have been asking her why they were not trying different approaches to treatment and care.’ a number of professional responsibility issues arose during the hearings. during one hearing a tribunal member asked the student whether they wished to seek an adjournment of the proceedings when the answers being given by the registrar were suggestive of the need for supplementary information before the tribunal could make its determination. the student lawyer readily agreed to seek such an adjournment without conferring with their client. in discussions following the hearing the student indicated that they had considered an adjournment was in the best interests of their client but then noted that they had overlooked their ethical obligation to consult with their client and obtain instructions before making such an application. failure by the student lawyers to properly consult and seek instructions from their client was referred to by some of the students who played the role of the patient in the hearings. a student playing the role of the client/patient provided an insight into their feelings regarding the experience: ‘i did not feel that i was engaged by my legal team, it is very easy to see how clients could be ignored by their lawyer.’ the professional conduct issue as to whether a client hospitalised in a mental health unit has the mental capacity to validly make a legal document arose 62 during the hearings. the student had submitted in the hearing that their client could execute a power of attorney27 while a patient in hospital so that their client’s financial affairs could be put in order by the attorney. on making this submission the registrar responded that they held serious concerns about the capacity of the client to validly execute an important legal document, such as a power of attorney, while an involuntary patient in hospital. the student referred to this ethical issue in discussions following the hearing stating: ‘i raised that the client… could execute a power of attorney. i was flummoxed when the doctor said that he did not consider that the client had the mental capacity to execute a power of attorney being an involuntary patient in a psychiatric hospital. i had not considered this before making the submission.’ a feature of the simulated hearings that had not been anticipated was the apparent concern that students had for the welfare of their client.28 the hearings also presented challenges for students who were required to act in accordance with their client’s instructions even though they may have conflicted with their own personal views as to what orders the tribunal should make.29 the hearings generated a reaction by students on an 27 a legal document where a person with the requisite mental capacity indicates who they wish to manage their financial affairs. 28 ferber notes that simulations can lead to students identifying issues which were not intended by the simulation which reflects the open-ended use of simulations, n.15, 423. 29 background reading for the module includes c. parker, a critical morality for lawyers: four approaches to lawyers’ ethics, monash university law review, 2004, vol 30, no 1. 63 emotional level. some students reflected that they found it difficult to argue their client’s instructions to be discharged when they formed the view that it was in the best interests of their client to remain in hospital: ‘in advocating for the client i was aware that my personal views of what was in the best interests of the client were different to what my client wanted. in order to properly act on their instructions i needed to separate my personal views and advocate purely on the instructions provided to me.’ the important role and purpose of a mental health tribunal was noted by a number of students in their reflections. a student commented that: ‘the tribunal is the last bastion for some of society’s most vulnerable and fragile members. the tribunal must do its utmost to protect these individuals from the deprivation of their liberty and subjection to treatment...’ evaluation in most cases students showed a high level of professionalism in preparing and appearing at the simulated hearings. students acquired detailed knowledge of the mental health laws focusing on the threshold questions to be considered by the tribunal in determining the application for detention. their problem solving skills were enhanced by questioning the registrar on the strengths of their client’s case while formulating strategies to argue that 64 their client could receive the necessary support and care outside the restrictive hospital setting. both formal and informal student reflections showed that students had reflected on the appropriate professional values when acting for a client in a mental health setting while developing a critical awareness of the access to justice issues which can arise for persons with a serious mental disability. the involvement of psychiatric registrars likely increased the level of student preparedness for the hearings while at the same time exposing students to experts in other disciplines. the challenges in switching from a familiar adversarial approach to a less adversarial and inquisitorial tribunal forum was a constant theme referred to by students. as the factual scenarios and tribunal questioning provided some uncertainty for students their skills in having to be flexible and adapt to the unfolding narrative were stretched. the practical reality and challenges of appearing for a client in an informal and flexible tribunal hearing was evident in student reflections. heavily scripted questions prepared prior to the hearing often did not serve the client or student lawyers well. this was particularly evident when the registrars gave evidence which did not assist the group’s overall arguments. using groups of students with specifically defined roles provided collaborative opportunities as students were required to develop team strategies in approaching the questioning of the medical registrars and the making of submissions. having a student play the role of a patient and then eliciting their responses regarding their interaction with the student lawyers 65 provided insights for students as to the importance of effectively communicating with clients throughout the proceedings and adopting client centred lawyering approaches. depriving someone of their liberty and taking away their choice to make autonomous decisions regarding what treatment is to be administered likely resonated in a way different to what would be expected if no-one played the role of a patient in the hearing. review the use of simulation in a tribunal context provides law students with the opportunity to develop their advocacy skills in less adversarial and inquisitorial forums. such experiences add to the suite of advocacy skills needed by 21st century lawyers. setting the advocacy hearing in a forum which entry level lawyers may be advising and appearing in is an important addition to the knowledge and advocacy skills base of a law student. student reflection on the tribunal hearings indicated that there are challenges posed for them when they move from an adversarial approach to a less adversarial style. this challenge should prompt the introduction of tribunal advocacy opportunities for students during their legal training so that they can acquire and develop such skills as they transition into legal practice. the use of expert witnesses provides a realistic aspect to a simulated hearing in exposing students to the challenges of questioning professional witnesses. 66 there is scope to develop tribunal simulations in other specialist tribunals, such as building and consumer claims, with the engagement of relevant and appropriate experts. a building dispute case can involve a conclave of experts where there is argument over the precise terms of the contract and whether there has been an actual breach. arguments as to whether the parties have mitigated their loss can also arise. experts from opposing sides could be involved in a simulated tribunal hearing so that students have the opportunity to cross examine in a commercially focused hearing. a building or engineering discipline within a university may provide a source of experts who could be used. tenancy and consumer disputes provide opportunities for tribunal simulations dealing with issues such as disputed damage to rental premises and whether goods that have been bought are fit for their purpose and are of merchantable quality. builders could be called as experts to provide competing evidence assessing the damage to rental premises. the simulation could be devised so that there is significant dispute as to the quantum of damage and loss and arguments raised such as whether the damage was pre-existing. prior to the simulated hearing students could be involved in shadowing lawyers or tenancy advocates who attend commercial and tenancy tribunal hearings so that they are familiar with the particular nuances of the jurisdiction. what remains critical is that law students are provided with opportunities to advocate in forums which are non-adversarial or less adversarial in nature so 67 as to equip them with the requisite skills and techniques that they can draw upon as they transition into the diverse range of legal practice advocacy environments. 68 project1 foreword welcome to issue 13 of the international journal of clinical legal education. this is the first issue of the journal under the current editorship and i would like to pay tribute to professor philip plowden, my predecessor and driving force behind the ijcle, its associated conferences and the development of a vibrant international clinical community. philip has become dean of the school of law at northumbria university but remains heavily involved in clinic including not only continuing his clinical teaching but contributing to conferences, symposia and other scholarly activities. in this edition when reading through the proofs of the articles for this edition the theme that struck me was diverse notions of lawyering. the three main articles reveal the rich diversity of approaches to the role of the lawyer and the lawyering process. we see the lawyer as agent of social change, as moral activist and as zealous advocate of individual client interests. together these articles serve to reinforce the need when educating students to be aware of the plethora of potential professional roles and to understand one’s own professional and ethical compass and the influence this is likely to have on student lawyers. in the first article professor nekima levy-pounds and artika tyner explain how they seek to integrate the principles of ubuntu into their clinical curriculum so as to train law students to become agents of social change. they describe ubuntu as a sense of interrelatedness; of society’s need for love, peace and justice. their conception of lawyering is all encompassing and they urge clinics to focus students’ minds on uncomfortable realities of prejudice, oppression and inequality and to begin to address the potential role of the lawyer in alleviating these wrongs. the paper challenges the traditional view of the lawyer as an amoral mouthpiece for advancing individual rights. they propose a more communitarian approach to the lawyering process. they outline how their clinic encourages students to think outside the box – to problem solve, collaborate with stakeholders and participate in meetings of grassroots and civil rights organisations to use their legal skills to benefit those from disadvantaged backgrounds. they introduce the idea of the student as participant observer – going out into the communities served by the clinic and engaging with the needs of the underserved. their view of the clinic as a start point for development of students as agents of social change will not be attractive to everyone but it is a broad, expansive and ambitious view of the potential role of the lawyer and that clinicians have the ability to influence students in a positive way to work for social emancipation. in the second article ross hyams asks a basic but fundamental and ultimately intractable question, “what sort of lawyer do we want students to be”? he posits that mainstream legal education has proved to be poor at inculcating elements of professionalism such as autonomy, judgment and commitment to lifelong learning. he argues that clinics are well placed to nurture professionalism in students but acknowledges the elusive nature of the concept. he outlines a range of different approaches to lawyering and believes that clinicians should be aware of this range and in particular their own approach so that students will understand the context of the messages they are being foreword 5 given. he concludes that teaching professionalism remains very challenging for supervisors and often confronting for students but that clinic provides the best opportunity to achieve this. finally, he offers atticus finch of “to kill a mockingbird” as a role model for inculcating a sense of professional responsibility in their students, praising his compassion, tolerance, perspective, courage, wisdom and belief in the role of the courts as the great levellers of society. clinicians: get down to the library and borrow a copy. in the third article professor genevra brown recognises the symbolic and cultural power of the paradigm of innocence on a micro and macro level. on the micro level she observed in her students a natural inclination towards the client who unequivocally claimed her innocence and away from an equivalent client with more ambiguous instructions. as a public defender, professor brown advanced the principle of zealous representation for all clients regardless of innocence or guilt and attempted to inculcate this within her own students. on a macro level, the article tracks the attractiveness of the innocence paradigm to policy makers and legislators and summarises criminal appeal reforms that have focused on factual innocence and away from constitutional violations. while acknowledging the social, legal and educational contribution of innocence projects she is uneasy that the notion of innocence has a tendency to dominate the legal and educational landscape and argues that quality representation should never be reduced to essentialist standards of guilt or innocence. in the clinical practice section i am delighted to present dr izabella kraznicka’s detailed and highly interesting examination of the polish legal framework and the success story of clinic in recent years together with ongoing challenges to integrate clinic into the curriculum to ensure a sustainable future. laurence donnelly provides an analysis of the slow development of clinical legal education in ireland, recognising that the clinical method has not caught the imagination of the academy in the way it has elsewhere. however, using the national university of galway as a case study, he shows how clinic may continue to develop and become more accepted as a mainstream method of educating law students. finally, angela macfarlane and paul mckeown offer 10 “lessons” from the no doubt scores that they learned in their first year as new clinicians, having joined a university law clinic directly from legal practice and with no prior teaching experience. their insights should be helpful to other new (and perhaps some not so new) clinical supervisors. in particular, i would like to emphasise the last lesson: enjoy! kevin kerrigan editor 6 journal of clinical legal education december 2008 project1 21 “on teaching students to ‘act like a lawyer’: what sort of lawyer?” ross hyams* teaching professionalism is a challenge for educators in any course of professional education. it is also often very confronting for students. in legal education, both students and teachers can find the concepts foreign because of the focus on analytical and logic skills and the lack of application to ‘real life’ requirements of legal practice. this paper investigates the intersection of clinical teaching and professional responsibility. it investigates the issue of teaching students to “act like a lawyer” and asks the fundamental question: “what sort of lawyer do we want students to act like?” in presenting this paper, it is accepted that, certainly in australia, about 50% of law graduates end up in non-legal practicing, but related professions1 – and thus an approach to teaching needs to be developed which deals with this reality. why do lawyers call themselves members of a ‘legal profession’? theoretically, the common features of what makes a group of lawyers in any society a profession can be broken down into the following: 1. licensing or accreditation requirements that set minimum educational requirements for entry (a law degree and any associated professional qualifications) and ongoing training requirements (continuing professional development). 2. high levels of training and intellectual skill. 3. a significant degree of autonomy and the exercise of high degrees of personal judgment. 4. a commitment to the interests of a substantial social value – the medical and nursing profession serve the interests of health, while the legal profession serve the interests of justice. if these attributes are fundamental to the nature of a ‘legal profession’, are current law students being educated with the aim of educating these qualities? accreditation requirements indicate an ability to engage in and a commitment to life-long learning. legal educators must ask themselves whether this is currently being inculcated in law students. are students being shown self-directed learning practices in their undergraduate years? how much are they being ‘spoon fed’? are they being equipped with any tools for ongoing self-directed learning? the second aspect, that of intellectual skill, definitely appears to be on the legal education agenda. “on teaching students to ‘act like a lawyer’: what sort of lawyer?” * senior lecturer-in-law, faculty of law, monash university 1 vignaendra s, ‘australian law graduates’ career destinations’ (1998) the centre for legal education, department of employment, education, training and youth affairs, 21. law school certainly does attempt to sharpen students’ intellectual skills by teaching them logic, analysis, synthesis, argument, deductive and inductive reasoning. this is being done quite well, according to the u.s. carnegie report, which indicates that within months of arriving at law school, students are able to show developing skills in legal argument, precise language and application of legal rules.2 the training aspect is less convincing and it depends what is meant by ‘training’. are students adequately trained for practice? in this writer’s opinion they are not, but clinical legal education certainly attempts to lead the way in the training of practical legal skills such as interviewing, negotiation, letter writing and basic advocacy. it can be forcefully contended that, at its most basic, clinical legal education has managed to build up credibility in these areas. the third aspect – the qualities of autonomy and personal judgment, are difficult to measure. it is questionable whether these skills are being taught well in law school and this issue will be returned to later. finally, there is the issue of commitment to the interests of a substantial social value. do students leave university with an understanding of what this means? bound up in this concept is both knowledge and appreciation of ethical issues and an understanding of professional conduct or professionalism. so – what is professionalism? at first instance, it must be decided what it is not. it is not simply the rules of professional conduct as set out in that particular jurisdiction.3 parker and evans call professional conduct rules ‘the law of lawyering’ and state that such rules are helpful in guiding behaviour, but do not provide any guidance regarding lawyers’ values or help a person make choices about what sort of lawyer one should be.4 noone and dickson set out their minimal requirements for a legal practitioner to be considered professionally responsible as follows: 1. the practitioner fulfils the duties attached to a fiduciary relationship 2. the person is competent in the work they perform 3. s/he communicates often, openly and clearly with their client 4. s/he does not encourage the use of law to bring about injustice, oppression or discrimination 5. s/he identifies, raises and discusses ethical issues with current/potential clients 6. s/he seeks to enhance the administration of justice; and actively engages in serving the community.5 three further requirements can be added to augment this list: a) the lawyer should be able to work in an autonomous way – in an independent, selfsufficient and self-directed fashion. 22 journal of clinical legal education december 2008 2 william sullivan et al (2007) educating lawyers: preparation for the profession of law, carnegie foundation for the advancement of teaching, jossey-bass, stanford. observation 1. 3 parker c and evans a, inside lawyers ethics, cambridge university press, melbourne, 2007, 4. 4 id. 5 dickson j & noone m.a, teaching towards a new professionalism: challenging law students to become ethical lawyers (2001) 4(2) legal ethics 127 at 144. b) the lawyer should be able to exercise judgment – not only relating to how to resolve a client’s problems, but reflective judgment of their own behaviour and actions. c) s/he should have an ongoing commitment to lifelong education – over and above that which is required by continuing professional development points. this requires two things – first, an understanding that good lawyering and professionalism requires an ongoing process of understanding personal limitations and a commitment to remain fresh, innovative and knowledgeable in professional work. second, it requires the tools to put this understanding and commitment into action. it is this author’s contention that these three additional requirements are not being inculcated well by mainstream undergraduate teaching. clinical legal education can and should focus on these requirements and clinicians may be fostering these aptitudes implicitly, but it is possible to be more explicit in mentoring clinical students in these qualities. if clinicians wish to tackle the issue of teaching their students how to behave, rather than simply think, like lawyers then the discussion needs to also deal with teaching professionalism in a generic sense. are clinical legal educators committed to teaching students to “act like a lawyer”? what sort of lawyer is meant by this? how do clinicians see the profession and their role within it? are clinicians teaching students to be litigators, advisers, problem solvers, advocates or resolvers of conflict? or perhaps all of these? parker and evans6 posit four possible approaches to lawyering styles. this is a helpful paradigm for clinicians in deciding how to approach clinical pedagogy. the first type of lawyer is the adversarial advocate.7 this is the traditional approach to lawyering – one that highlights a lawyer’s duty to the client to pursue the client’s interests vigorously within the bounds of the law. this is governed by legality, not by morality or any further social duty or responsibility and adheres to the written rules of professional conduct. the other approaches they suggest are: the responsible lawyer:8 this position posits that lawyers, as officers of the court and trustees of the legal system, must see themselves as having an overriding duty towards maintaining the institutions of law and justice in their best possible form. for a responsible lawyer, personal moral beliefs are irrelevant – this type of lawyering looks at the ethics inherent in their role as an officer of the court and in the legal system itself. of course, the downside of this approach is that by taking a “responsible lawyering’ approach, the lawyer may be in conflict with the need to appropriately serve the client’s interests. in professional conduct rules, this approach is often in tension with the traditional advocate approach and the debate is often “how does the lawyer balance the duty to the court against the duty to the client?” this approach is fairly conservative, as it operates within the current legal rules and frameworks and does not critique the current institutions of law. the moral activist:9 this posits that lawyers should follow their own ethical standards about what it means to do justice. this type of lawyering states that one cannot escape moral culpability for actions by retreating into the limitations imposed by the above two categories. the downside of moral activism is it neglects the tenet that everyone in society is entitled to legal representation no matter what the lawyer thinks of the cause. it prescribes no particular duty to the law or the legal “on teaching students to ‘act like a lawyer’: what sort of lawyer?” 23 6 parker and evans, note 3 at 21–37 7 parker and evans, note 3 at 24. 8 ibid at 26. 9 ibid at 28. system and indeed encourages lawyers to challenge it. it also places the individual lawyer’s value system and commitment to justice (as perceived by that particular lawyer) above the duty to the client. sometimes it is criticised as being just a demonstration of a lawyer’s ego. ethics of care:10 this is concerned with personal and relational ethics. it is particularly concerned with preserving or restoring relationships and avoiding harm. it sees relationships as more important than the institutions of the law or social ideas of justice and ethics. arguably, this approach has three consequences: • it encourages lawyers to take a more holistic view of clients and their problems. • the ethics of care emphasizes dialogue between lawyer and client and a participatory approach to lawyering. • it encourages non-adversarial resolutions in order to preserve relationships, if possible. legal educators, especially clinicians, don’t have to teach students to be specifically one or other of the above. however, it is vital that clinicians are aware of the different approaches to lawyering that are being taught and modelled. clinicians must have a clear idea of what their approach to lawyering is so that clear messages can be provided to students. clinicians’ pedagogic responsibility other clinical scholars have written about clinicians’ ability (or duty) to teach legal ethics within a clinical framework.11 ten years ago goldsmith and powles12 raised this issue in the context of their contention that law schools and the legal profession itself had been derelict in their duty to promote ethical awareness and a sense of professional duty. they stated: “without question, law schools in australia have not done enough to promulgate and promote more substantive conceptions of legal competence and professional responsibility”.13 goldsmith and powles did not limit their discussion to the integration of ethics into clinical legal education or the wider undergraduate curriculum. they called for law school curricula to be developed which will “find and operationalise methods for greater professional self-awareness”14. they suggested the development of interdisciplinary methods and materials in order to create a wider pedagogy of professional responsibility15. this thinking can be taken one step further. clinicians have the unique opportunity to develop clinical pedagogy and to mentor students in a range of broad and fundamental professional skills which can enhance them in their future careers, whether they remain in the law or not. accordingly, clinic may be seen as an opportunity to mold a student’s entire approach to their future professional career. the question as to whether this is an appropriate use of clinic will be dealt with later in this discussion. 24 journal of clinical legal education december 2008 10 ibid at 31. 11 see curran l, dickson j & noone m a (2005) pushing the boundaries or preserving the status quo? designing clinical programs to teach law students a deep understanding of ethical practice 8 international journal of clinical legal education 104. 12 goldsmith a & powles g lawyers behaving badly: where now in legal education for acting responsibly in australia in k economides (ed), ethical challenges to legal education and conduct (oxford, hart publishing, 1998). 13 ibid at 2. 14 ibid at 15. 15 ibid at 14. clinicians would mostly agree that law cannot be taught in a vacuum – many legal educators are drawn to teaching clinic because of a dissatisfaction with the case method of teaching – the disaffection and tedium that law students suffer through this form of teaching is often obvious and palpable16, as many students realise that the way they learn law has little connection with human transactions in the real world. legal education is extremely efficient in its ability to teach students analytical and logical reasoning17 and not for a moment is it suggested that learning these abilities is irrelevant or unimportant. however, law school has traditionally not been very good at integrating knowledge and skills well with subsequent stages of a professional career.18 this is an old complaint and has been the subject of other writing.19 clinic, however, prides itself on the ability to integrate ‘black letter’ legal knowledge with real life situations and provide students with a context for a deeper understanding and application of legal knowledge. however, clinic has a broader mandate than just the integration of practical legal skills with knowledge of the law. clinicians can (and should) take on the mantle of teaching for lifelong learning, which includes the three additional requirements of a professional which have already been enumerated above – autonomy, judgment and a commitment to lifelong education. current post graduation traineeship systems are too ‘hit and miss’ to rely on this training to occur after a law graduate joins the workforce – and further, if a large number of law graduates don’t join the profession, they do not have access to whatever traineeship system exists for those entering a legal career. they are expected to walk into a professional occupation understanding what is required to behave professionally with no previous instruction whatsoever. accordingly, the next part of this paper will identify these skills of professionalism and offer some proposals as to how they might be taught in a clinical environment. autonomy there has been a great deal of scholarly writing about individuals’ self-perceptions of autonomy. decharms20 describes the dichotomy of individuals’ feelings of being either “origins” (that is, people who felt their behaviour is determined by the own choosing) or “pawns” (those who feel their behaviour is determined by external forces beyond their control).21 more recently, ryan and deci’s work22 has modified this dichotomy into a graded theory of internalization – the more internally valued a behaviour is and the more it is internally regulated, the more the individual perceives themselves as acting autonomously.23 “on teaching students to ‘act like a lawyer’: what sort of lawyer?” 25 16 clinical buddies: jumping the fact-law chasm in naylor b and hyams r (eds) innovation in clinical legal education: educating future lawyers — monograph no 1 (2007) alternative law journal. 17 sullivan et al, note 2. 18 boon a & whyte a looking back: analysing experiences of legal education and training (2007) 41 the law teacher 169, 182. 19 see for example martin j & garth b clinical education as a bridge between law school and practice: mitigating the misery (1994–1995) 1 clinical l. rev. 443. 20 decharms, r personal causation: the internal affective determinants of behaviour (1968) new york: academic. 21 ibid at 273–274. 22 ryan r m & deci e (2000) self –determination and the facilitation of intrinsic motivation, social development and well being 55 american psychologist 68–78. 23 stefanou c, perencevich k, dicintio m & turner j supporting autonomy in the classroom: ways teachers encourage student decision making and ownership (2004) 39(2) educational psychologist 97–110 at 98. in a clinical setting, the concept of autonomy involves law graduates being able to work independently and be self-directed in tackling and completing tasks without direction or supervision. it requires self-insight into how a project is broken down into sub-tasks and how work loads and time limits are managed. to a certain extent legal educators have an expectation that this is an attribute learnt by law graduates by the mere fact that they have managed the requirements of studying a law degree. however, it cannot be expected that students will simply learn the skill to act autonomously by implication or osmosis. if it can be accepted that learning is an “active, self-constructed and intentional process”24 then this process can be explicitly assisted by supporting students’ journey towards autonomous learning and action. black & deci, writing in the field of science education, describe this as taking the students’ perspective, acknowledging their feelings and providing them with “pertinent information and opportunities for choice, while minimizing the use of pressure and demands.”25 further, clinicians can promote students’ attainment of autonomy by supporting their intrinsic motivations to learn skills and progress their casework competently – this can be done by being less directional in the approach to problem solving, by encouraging initiative and showing that the tasks that students are undertaking are valued.26 judgment lawyers and other professionals are constantly called upon to make judgments – not only in relation to the tactics and techniques in solving client problems, but also self-judgment: did i handle that matter well? how could i have done it better? was i effective in the way i interviewed/negotiated/advocated? sampford and blencowe point out that lawyers make judgments on a daily basis for clients on a variety on matters not limited to legal issues.27 this will include judgments relating to time constraints, economic factors and emotional issues such as a client’s ability to cope with litigation and how extended conflict may affect a client’s complicated personal or business relationships. eberle suggests that lawyers (and, it can be added, other professionals) must show “sound judgment, practical wisdom, a process of imagination, careful deliberation, and intuitive comprehension.”28 the clea best practice report29 provides a comprehensive list of “good lawyer” traits gleaned from various scholarly writings – the skill of judgment is a regular inclusion in these lists. it is this writer’s opinion that there would little controversy over the fact that it would be a positive attribute for law graduates to be able to demonstrate good judgment skills, but the issue remains as to how this elusive quality is to be taught. it is essential for students to learn more than just legal or technical judgments based on win/lose scenarios. in this regard clinical teachers can borrow 26 journal of clinical legal education december 2008 24 id. 25 black a e & deci e l (2000) the effect of instructors’ autonomy support and students’ autonomous motivation on learning organic chemistry: a self determination theory perspective 84 science education 740 at 742. 26 stefanou, note 19 at 100. 27 sampford c & blencowe s educating lawyers to be ethical advisers in economides, kim (ed), ethical challenges to legal education & conduct, (hart publishing oxford 1998) at 319. 28 eberle e j three foundations of legal ethics: autonomy, community, and morality (1993) 7 georgetown journal of legal ethics 89 at 123. 29 stuckey r et al clea best practice report (2007) clinical legal education association u.s.a. at 51–54. from some of the concepts inherent in the notions of therapeutic jurisprudence. the ‘fathers” of this notion, winick and wexler, describe therapeutic jurisprudence as “having a more humanistic orientation, seeking to lessen the excessive adversarialness of lawyering, trying to improve client well-being generally”.30 the interdisciplinary nature of therapeutic jurisprudence, with its focus on a consideration of the emotional and psychological welfare of those who come into contact with the legal and justice system, is an ideology that should be quite familiar to a clinical teacher. by necessity, clinicians usually attempt to solve client problems without recourse to litigation as often clinical clients cannot afford the time, expense and emotional strain associated with court proceedings. further, clinicians are not limited by fee considerations and are able to take a broader and more holistic approach to their clients’ problems, which may not be available to a lawyer working in a “fee for service” environment. clinicians are also often influenced by their students’ idealistic views and their enthusiasm in attempting to assist a client above and beyond the resolution of the immediate problem which the client presented to the clinic. many clinical teachers have practised in this fashion for years, without realising that they are actually incorporating therapeutic jurisprudence in their approach to practice. thus, clinicians can embrace these concepts explicitly in their approach to clinical pedagogy. therapeutic jurisprudential methodology can be modeled to students so that they can form an appreciation that real lawyering goes beyond technical judgments based on dry and logical analysis. students working in a clinic should be allowed and encouraged to take into account therapeutic and non-therapeutic consequences for clients. the second aspect of this equation is the skill of self-judgment and reflective lawyering. the best known work on reflective learning by professionals is by schön who created the term “reflective practitioner”31 in order for student reflection to occur, some basic pre-requisites must be met. primarily, students must be put into situations which are outside their normal range of experiences,32 so that they find themselves reacting to a novel situation which, in essence, requires some “de-briefing” and will thus trigger the reflective process. for anyone who has ever worked in a clinical legal environment, it will be obvious that clinic students find themselves in such situations almost on a daily basis. the environment of the clinic itself is usually outside their life experience and presents challenges to them, before they have even had the opportunity to set eyes upon a client. clinical legal education provides the perfect laboratory for action and reflection. the reflective process can be encouraged in various ways and will often happen as a by-product of clinical work – by informal peer discussion or by the more formal supervisor-led dialogue. the best way to harness the powerful tool of reflection is to require the writing of reflective journals to provide a structured format for the development and nurturing of meaningful and considered student reflection. it compels students to tackle their clinical experience in a critical and more profound manner – as ogilvy succinctly describes it: “on teaching students to ‘act like a lawyer’: what sort of lawyer?” 27 30 winick b & wexler d the use of therapeutic jurisprudence in law school clinical education: transforming the criminal clinic 13 clinical l. rev. (2006–2007) 605 at 607. 31 schon, d the reflective practitioner: how professionals think in action (1983) new york: basic books. 32 rogers r reflection in higher education: a concept analysis (2001) 26 (1) innovative higher education 37 at 42. “through writing about what and how they are studying, students can move from superficial comprehension to employing critical thinking skills in their engagement with the material.”33 reflective journals or learning diaries are becoming widely used educative tools in clinical legal settings. in australia, many university law faculties have introduced them in recent years as a compulsory part of their clinical law courses. in many clinical programs, both in australia and elsewhere, they are a “hurdle” requirement to passing the unit – that is, the required number of diary entries must be provided by the student in order to satisfy the journaling requirement of the unit, but often no further assessment is made of their content. in a small number of clinical units, the actual substance of the journal entries are assessed and a numeric mark given for the work. there are opposing points of view for and against providing a numeric mark to students in relation to the actual content of the journal entries. discussion regarding this follows later in this paper. ongoing commitment to lifelong education clinicians are well situated to encourage an understanding in our students that legal education does not cease when they graduate. clinic is an excellent location to model the commitment to be up to date in law and procedure. it also requires self-knowledge and honesty about areas of knowledge and skills. a professional not only knows what they know, they know what they don’t know and how to go about remedying this lack of knowledge. this applies to both information and skills. a good legal professional understands the limits of their knowledge in specific legal areas, but also their skills’ limitations and has the honesty and integrity to ameliorate the situation when able to do so. lifelong learning skills are bound up with the ability to be self-reflective. claxton34 believes that the skill of life long learning requires resilience, resourcefulness and reflection. he states: “lifelong learning demands...the ability to think strategically about your own learning path, and this requires the self-awareness to know one's own goals, the resources that are needed to pursue them, and your current strengths and weaknesses in that regard… you have to able to monitor your progress; if necessary even to measure it; to mull over different options and courses of development; to be mindful of your own assumptions and habits, and able to stand back from them and appraise them when learning gets stuck; and in general to manage yourself as a learner – prioritising, planning, reviewing progress, revising strategy and if necessary changing tack.”35 the uk dearing report, (the reports of the national committee of inquiry into higher education) a series of major reports into the future of higher education in the united kingdom published in 1997, proposed that higher education needed to re-direct its efforts in order to create a situation in which “an effective strategy will involve guiding and enabling students to be effective learners, to understand their own learning styles, and to manage their own learning”.36 28 journal of clinical legal education december 2008 33 ogilvy j the use of journals in legal education: a tool for reflection (1996) clinical law review (3) fall 55. 34 claxton g (1999) wise up: the challenge of lifelong learning (london: bloomsbury) at 180. 35 ibid at 14. 36 report of the national committee of inquiry into higher education 1997 (dearing report) paragraph 8.15. the report states that implementation of such a strategy is as not only directly relevant to enhancing the quality of student learning while in higher education, but also to equipping them to be effective lifelong learners. the report called for resourcing to be re-directed so that staff can be less concerned with simple class contact and more engaged in the management of students’ learning, using a range of appropriate strategies.37 why clinic? why is clinic the appropriate place to teach professional responsibility? the immediate response is – if not clinic, where else? large classes with one lecturer to 150, 100 or even small group teaching of 50 students does not provide opportunities to model, discuss or even simulate professional responsibility. however, the assumption that clinic is the best place to do this needs to be challenged. can we just assume that a ‘problem first’ approach is a useful pedagogy for learning professional responsibility? arguably, the smaller and more personal teaching ratio in clinic makes it an ideal venue; the immediate and pressing needs of real clients throws up endless possibilities for the demonstration and development of skills required to learn professional responsibility. however, many clinical teachers have an intrinsic belief that a student will learn certain skills, including how to act professionally, simply by seeing a real client with a legal problem and then having to deal with it on an ad hoc basis. there is perhaps a belief that these skills will develop instinctively from having to find a solution to that problem ‘on the run’. certainly, it is possible to learn this way,38 but this concept of “learning by osmosis” must be tested as it is not necessarily the best way to learn professional skills.39 bergman argues that many clinicians assume that this form of clinical training affects students’ abilities to practise law in a positive fashion.40 however, he questions this approach and advocates a pedagogy of discrete lawyering skills which allows for repetition and refinement – a ‘selected skills’ approach41 which assists the student to develop professional responsibility. bergman’s position challenges the assumption that clinical work is a superior system of skills teaching and is also better at providing students with concepts of professional responsibility.42 one resolution to this may be the ability for clinics to enhance the “hit or miss” aspect of clinical work by running a thorough, detailed and sophisticated seminar or tutorial program alongside the live-client work in order to support and expand the legal skills learnt in the clinical environment. arguably, values awareness and professional conduct cannot be taught in one seminar or tutorial many clinical scholars would argue that it must be taught pervasively across the entire law school curriculum. however, this does not absolve the clinician of the responsibility to also provide a pedagogical basis for tackling both ethical issues and wider issues of professional responsibility in a more formal classroom setting, especially whilst students are undertaking the clinical program and these issues are relevant and immediate.43 “on teaching students to ‘act like a lawyer’: what sort of lawyer?” 29 37 ibid at 8.18. 38 sylvester c et al (2004) problem-based learning and clinical legal education: what can clinical educators learn from pbl? 4/6 international journal of clinical legal education 39.; stuckey (2007), ch 5: best practices for experiential courses. 39 evans a & hyams r independent evaluations of clinical legal education programs: appropriate 40 objectives and processes in an australian setting (2008) griffith law review 13. 40 bergman p, reflections on us clinical education (2003) 10(1) international journal of the legal profession 109 at 113. 41 evans & hyams, note 39 at 14. 42 id. 43 evans & hyams, note 39 at 15. further, setting time aside (and if necessary, reducing the client in-take in order to do so) to “workshop” a discussion with the students relating to issues of professional responsibility which have arisen from the day’s clinical work on a regular sessional basis, is a way to expose students to these issues in a pervasive and explicit way, rather than just hoping that students will simply absorb the important lessons of how to behave in a professional, ethical and responsible fashion. the way forward 1. assessment issues it is one thing to accept the pedagogical rationale for teaching professional responsibility. it is quite another to presume that a fair, transparent and defensible assessment tool can be created for measuring the outcomes of such teaching. the clea best practice report can provide some guidance in this area. it states: “outcomes should be measurable. it is self-defeating to state an outcome which cannot be assessed. at the same time, it is important not to be bound by the expectations of objective decimal-place accuracy. in this context, “measurable” means ‘a general judgment of whether students know, think, and can do most of what we intend for them.’”44 however, attempts to teach professional responsibility to our students loses much of its pedagogical value if not assessed. as stefani points out,45 academics are becoming increasingly aware that assessment of a student’s learning should not be based solely on the student’s ability to create a “product” but on the learning process itself. that is, clinicians should be assessing their students’ ability to learn, as well as testing the outcomes of what has been learnt. in a clinical environment, supervisors are not just marking students on their ability to write a document or to create a winning piece of advocacy. the students’ ability to learn legal and administrative processes is also being assessed, as well as their capacity to be creative, to make decisions and a myriad of other skills which cannot be simply measured as a “product”. students can and should be assessed on the journey itself, not on the end result or product. 2. feedback the feedback provided to the student when assessing their developing self evaluation skills and their increasing understanding of professionalism is itself a valuable pedagogical tool. students will pay much more attention to work that is being graded – they will treat it more seriously and, in this increasingly competitive era, will strive to better their marks if only for the pragmatic reason of ensuring their academic transcript will be read favourably by potential employers. however, the motivation for wanting to achieve better results is, in this author’s opinion, irrelevant. marks equal incentive and motivation. educators can utilise that motivation to their students’ advantage by insisting that reflective work is assessable and by providing feedback on the process to the students in order to increase their skills as insightful learners. graded assessment provides a structure for feedback – an essential ingredient in the learning process. for feedback to be a useful pedagogical tool, it must be timely and frequent, transparent, honest and structured. it 30 journal of clinical legal education december 2008 44 stuckey r at al, note 29 at 49. 45 stefani l assessment in partnership with learners (1998) assessment and evaluation in higher education 23(4) 339 at 344. must follow a set of paradigms which is common to all students undertaking the assessment task, and it must relate to the assessment criteria provided to the students. feedback is a much more straightforward process when supervisors have a structure in which it can be housed. grading criteria provide that basic structure. thus, feedback need not be a “free-form” process in which the supervisor comments in a capricious and unstructured way on the students’ journey to understanding notions of professionalism. the use of grading means that the supervisor can relate feedback comments directly to the grading criteria. this provides a format for the supervisor and thus reduces the time consuming demands of the feedback process. more importantly, however, it provides the students with a way of measuring their progress in the learning exercise. they should be able to relate their supervisor’s responses directly to a set of unambiguous criteria that was provided to them at the commencement of the unit. 3. enhancing clinicians’ teaching skills to take this thinking forward, practical ways to enhance clinical teaching in this area must be investigated. curran, dickson & noone have already made a compelling appeal for better training for clinical staff.46 they were writing about training in the teaching of ethics and their comments are just as apposite to training in generic professional skills, not only for clinicians to hone their own skills, but in how these skills can be modelled and taught to other adult learners. this is necessary in order to develop agreed strategies between clinicians as to the focus of the clinical program and to how much emphasis is being put on the development of these skills. to a certain extent, an agreed assessment regime will determine this focus, but clinicians need to be consistent in their attitude to students and the prominence being made of these issues. assessment issues need to be clarified, resolved and promulgated to students. thus, if the learning goals of the clinic are going to focus on issues of professionalism, this needs to be reflected in the published learning objectives and descriptions provided to students about the clinical units on offer. unfortunately, many students will merely give the learning goals a quick perusal before launching themselves into their clinical work. accordingly, supervisors should spend some time individually with each student explaining this methodology at the commencement of the clinical unit. this is certainly a time consuming process, but it will ultimately benefit both student and supervisor in the long term. 4. course design finally, course design needs to be investigated. it may be that better and wider classroom content is required to support a focus on professionalism. this will require a concomitant reduction in casework load and brings to the fore the continuous delicate balancing act that clinics must struggle with, between their role as educational facilities and centres of client service delivery. this area of discussion is an important one, but outside the scope of this paper. however, this author contends that clinics cannot take on additional areas of student learning without having to re-assess the requirements that are placed on the students’ shoulders. if clinicians wish to emphasise the importance of students learning skills of professionalism, then adequate time must be allowed in the formal clinical classroom curriculum and in the supervisor/student relationship to allow both formal (classroom) instruction and informal discussion to take place. at its most basic, the emphasis of the clinic may need to be restructured so that the number of clients that are seen in a “on teaching students to ‘act like a lawyer’: what sort of lawyer?” 31 46 curran, dixon and noone, note 11 at 12. given week is reduced, or the seminar/classroom component of the units undergoes a renewal and change of focus. conclusion the literature of legal education does not appear to provide one over-arching pedagogical theory for clinical education47 and similarly there is some lack of clarity in both the pedagogy of teaching professional responsibility and its assessment. teaching professionalism remains very challenging for supervisors and is often confronting for students. students are often unfamiliar with its requirements because of the focus in much of their legal education on logical and analytical thinking and not on wider generic skills. this author believes clinicians have the perfect opportunity to teach professionalism to law students – the appropriate skills and ideological commitment are also required to successfully respond to this challenge. perhaps clinicians can use the much loved atticus finch of “to kill a mockingbird” fame as a role model for inculcating a sense of professional responsibility in their students. atticus is a moral beacon in this novel and single handedly guides his children to virtue in a racist and unjust society, treating them with respect and as semi-autonomous individuals capable of insight and judgment. he attempts to teach them both compassion and tolerance, inviting them to climb inside a person’s skin and walk around in it, in order to understand another’s perspective. he treats everybody with respect regardless of their socio-economic background, skin colour or class. he is courageous and wise and an avid believer in the role of courts as the great levellers of society.48 in many ways, he is the ultimate model of legal professional responsibility. a worthy clinical objective may be to consistently model, inculcate and inspire such professional behaviour in clinic students – but ideological commitment and the appropriate pedagogical tools are required in order to do so. 32 journal of clinical legal education december 2008 47 l morton, j weinstein, m weinstein pedagogy: not quite grown up: the difficulty of applying education model to legal externs (1999) 5 clinical law review 469 at 493. 48 dare t “the secret courts of men’s hearts”, legal ethics and harper lee’s to kill a mockingbird in k economides (ed), ethical challenges to legal education and conduct (oxford, hart publishing, 1998) at 43. keynote address – clinic, the university and society clinical legal education in a dangerous time sarah buhler, university of saskatchewan, canada* 1. introduction i am honoured to have the opportunity to speak this afternoon. i would like to begin by acknowledging that this city, toronto, is located on the traditional indigenous territory of the haudenosaunee people and more recently the mississaugas of the new credit. this land where we are holding this conference was also the subject of the dish with one spoon wampum belt covenant, which was an agreement between the iroquois confederacy and the ojibwe and allied nations to share and care for the resources around the great lakes. this territory is also covered by the upper canada treaties.[footnoteref:1] this is powerful territory that has always been a meeting place for indigenous nations and it is a very good place for us to gather to learn together about the risks and rewards of clinical legal education. [1: *sarah buhler is an associate professor in the college of law at the university of saskatchewan. see first story toronto, “first story toronto: exploring the aboriginal history of toronto!” online at https://firststoryblog.wordpress.com/aboutfirststory/ (accessed november 18, 2016) and sara mcdowell, “the indigenous history of toronto” (university of toronto libraries) online at http://guides.library.utoronto.ca/toronto (accessed november 18, 2016).] i come to you from 2800 km away – from the city of saskatoon, in the province of saskatchewan – half way across this country. my city is located on treaty 6 territory, which is also the homeland of the metis nation. i am the great granddaughter and granddaughter of russian mennonite farmers who came to settle just north of saskatoon in the late 1800s and early 1900s. my grandparents came to canada as refugees fleeing civil war, displacement and the loss of their way of life.[footnoteref:2] the canadian government promised my people land and religious freedom and my people prospered.[footnoteref:3] around the same time, canadian government policies were leading to starvation, illness and poverty in indigenous communities. indigenous people were being moved to reserves; their children were being forced to go to residential schools where many were horribly abused and many died; indigenous spiritual practices were outlawed.[footnoteref:4] today, in saskatchewan, where i live, settler colonialism and racism are still alive and well.[footnoteref:5] to give just one examplewhile indigenous people make up 15% of the province’s population, close to 80% of people in saskatchewan prisons are indigenous.[footnoteref:6] the legal clinic that i am involved with community legal assistance services for saskatoon inner city (classic) assists clients with prison discipline hearings, criminal charges, complaints against police, evictions and housing issues, income assistance, employment law, human rights and more.[footnoteref:7] many of our clients find themselves at the clinic because of the ongoing traumatic impacts of colonialism.[footnoteref:8] meanwhile, the opportunities i have had in my life for education, security, and stability flow in many ways directly and indirectly from the land that was granted to my forebears.[footnoteref:9] [2: see mennonite historical society of canada, “coming to canada” online at http://www.mhsc.ca/index.php?content=http://www.mhsc.ca/mennos/hcanada.html (accessed november 18, 2016). ] [3: indeed, the settlement of mennonite farmers in western canada was directly connected to the national colonial project. see leo driedger, “native rebellion and mennonite invasion: an examination of two canadian river valleys” (1972) the mennonite quarterly review 298. driedger writes (at p. 300) that “early mennonite settlers in manitoba and saskatchewan benefitted greatly from canadian government conquest and control of metis and indians in the west.”] [4: see generally, james daschuk, clearing the plains: disease, politics of starvation, and the loss of aboriginal life (regina: university of regina press, 2013). ] [5: as patrick wolfe has shown, settler colonialism is not a past event, but is rather an ongoing structure that is ongoing in the present moment. see patrick wolfe, “settler colonialism and the elimination of the native” (2006) j of genocide research 387 at 388.] [6: statistics canada, “adult correctional statistics in canada 2014/2015”, online at http://www.statcan.gc.ca/pub/85-002-x/2016001/article/14318/tbl/tbl05-eng.htm (accessed november 19, 2016); and government of saskatchewan, “saskatchewan aboriginal peoples: 2011 national household survey”, http://www.stats.gov.sk.ca/stats/pop/2011aboriginal%20people.pdf (accessed november 19, 2016).] [7: see www.classiclaw.ca] [8: for one study showing the ways that colonialism produces “trauma trails” in the present day lives of people, see judy atkinson, trauma trails, recreating song lines: the transgenerational effects of trauma in indigenous australia (sydney: spinifex, 2002).] [9: esther epp-thiessen, “mennonites colonizing canada and the us” (2014) 2 intersections: mcc theory and practice quarterly p13, online at : http://mcccanada.ca/sites/mcccanada.ca/files/media/common/documents/intersectionswinter2014web.pdf and see driedger, supra note 3.] i share a little bit about where i come from and where i am located and a little bit about the dynamics in my home community because i have learned that it is important for us to always situate ourselves so that it might become clear that we are all coming from different places, and to underscore the fact that our knowledge and ideas are contingent and rooted in particular places and histories.[footnoteref:10] this situating of ourselves is particularly important when we consider our roles and relationships in clinical legal education. none of us are positioned neutrally in relation to the world or to our work in clinics. when i look around this room, i see people from around this country and from around the world. each of you has your own personal story and history, and each are engaged in the long struggle for justice as it unfolds in the particular places where you work. but, because of the complicated global forces that operate in our world, we are also connected together and entangled together in some really important ways, facing versions of the same risks in our own local contexts. and this is why it makes so much sense to come together from around the world to share our experiences and learn together. [10: see lisa monchalin, who writes that “this presentation of the instructor [or researcher] as a subjective self is important and must not be glossed over given the colonial past and present” and “we must acknowledge that where one stands in the world affects one’s view”. lisa monchalin, the colonial problem: an indigenous perspective on crime and injustice in canada (toronto: university of toronto press, 2016) at xvii and xix.] 2. a world in crisis the theme of this conference is the “risks and rewards of clinical legal education”. when i first heard about this theme, i was particularly struck by the word “risk”. risk is a word that feels so reflective of our world right now, and i thought i would try to think about where clinical legal education is situated in the larger world of risk and crisis that we inhabit today – what our role is in relation to this world and what the rewards of clinical legal education in our world of risk and endless crisis might be. so let us take a moment to consider the state of the world in which we find ourselves today, july tenth 2016 – my son ben’s 8th birthday. i don’t think that anyone can dispute that we live in a world in crisis, a world that is characterized by harrowing injustice, with a growing sense of fear and unease permeating. every parent i know holds a sense of worry for the future that his or her children will inherit. i know i wonder and i worry about my benjamin (and my other 2 children) and how the world will be for them. we are currently seeing the rise of far right nationalism in europe and elsewhere. we are seeing the rise of donald trump and white supremacism in the united states and an unleashing of an overt racism and xenophobia in many countries. meanwhile, there are more people displaced today than in any other time in history: one in every 113 people in the world is a refugee, internally displaced or seeking asylum.[footnoteref:11] some commentators are noting that what we are living through is the beginning of the ugly end stages of western imperialism and the capitalist world order – a headline in the guardian a couple of weeks ago referenced a “dying world order”.[footnoteref:12] a june 2016 globe and mail article referenced a “gathering storm” on the world stage, noting that “the rise of mr. trump, the wars and refugee crises of the middle east, and the west’s sanctions war with russia have all fed a sense of dangerous instability on the international stage”.[footnoteref:13] many commentators have noted that a sense of anxiety permeates western culture.[footnoteref:14] if you want an example, just look at the latest blockbuster films so many of which are dedicated to helping audiences visualize the spectacular destruction of institutions. indeed joseph masco wrote that american society is imaginatively rehearsing for destruction through its cinema.[footnoteref:15] lesley head, who has written a heart-wrenching book about hope and grief in the face of climate change, has written, “[w]e in the affluent west are grieving for the loss of the modern self and its dependence on a future characterized by hope.”[footnoteref:16] she notes that there is a sense of “lurking anxiety and looming crisis all around.”[footnoteref:17] [11: adrian edwards, unhcr, “global forced displacement hits record high” (20 june, 2016) online at: http://www.unhcr.org/news/latest/2016/6/5763b65a4/global-forced-displacement-hits-record-high.html (access november 22, 2016).] [12: paul mason, “the global order is dying. but it’s an illusion to think britain can survive without the eu”, the guardian (june 27, 2016) online at: https://www.theguardian.com/commentisfree/2016/jun/27/global-order-britain-survive-eu-alternative-economic-model (accessed november 22, 2016).] [13: mark mackinnon, “aftershock”, globe and mail, saturday june 25, 2016 a8 at a8.] [14: see for example, david nielson, “class, precarity, and anxiety under neoliberal global capitalism: from denial to resistance” (2015) theory & psychology 1.] [15: joseph masco, “engineering the future as nuclear ruin,” in ann laura stoler, ed., imperial debris: on ruins and ruination (durham: duke university press, 2013) 252 at 279. masco argues that american nation building is built “not on the protection and improvement of everyday life, but rather on the national contemplation of ruins” (at 252).] [16: lesley head, hope and grief in the anthropocene: re-conceptualizing human-nature relations (new york: routledge, 2016) at 21.] [17: ibid. see also: ulrich beck, twenty observations on a world in turmoil (cambridge: polity press, 2012). beck writes at 14: “even in the global economic crisis the wealthy pay at worst in the value of their stocks, whereas the most vulnerable social groups, who have nothing to do with the crisis, are ‘paying’ for it in the hard currency of their…existence.”] of course, life for so many on the margins has already, for a very long time, been characterized by violence and loss and risk. lesley head writes that the “histories of capitalism and colonialism have shown us” that “the hopes of many have been built on other people’s suffering.”[footnoteref:18] critical indigenous writers and artists have been pointing out for a long time that for indigenous people, the apocalypse started with the arrival of settler colonialism and continues apace to this day. indigenous artist lindsey nixon writes that we are currently living in an “indigenous dystopia.” [footnoteref:19] and anishinaabe scholar lawrence gross writes about what he calls “post apocalypse stress syndrome,” noting that the anishinaabe people are what he calls “postapocalypse people, having seen the end of their respective worlds within historical memory”.[footnoteref:20] [18: ibid at 8. ] [19: lindsay nixon, “visual cultures of indigenous futurisms” guts magazine (may 20, 2016) online at http://gutsmagazine.ca/visual-cultures/ (accessed november 22, 2016). see also karl hardy, who writes that western utopias have been indigenous dystopias: karl hardy, “unsettling hope: contemporary indigenous politics, settler-colonialism, and utopianism (2012) 2 spaces of utopia: an electronic journal 123 at 126. online at http://ler.letras.up.pt/uploads/ficheiros/10640.%20hardy_spaces.pdf (accessed november 22, 2016).] [20: lawrence w. gross, anishinaabe ways of knowing and being (surrey: ashgate, 2014) at 33.] in other words, while a growing number of people feel a rising sense of risk, we already live in a world where violence and loss are tearing apart the fabric of communities, where some communities have already experienced forms of apocalypse. there is overt, shocking violence occurring in too many places on our planet. i am thinking today about the destruction of aleppo. closer to home i am thinking today of police violence towards black men and women in baltimore, ferguson, this week in baton rouge, st. paul, minnesota, and in this city, toronto, and in my home community of saskatoon. but there is also what rob nixon has called “slow violence”[footnoteref:21], what paul farmer calls ‘structural violence”[footnoteref:22], and what chris cuneen calls “the violence of neglect”[footnoteref:23] in other words the violence of poverty, hunger, loss, and dispossession that affects so many in our communities. it is hard to deny that our economic systems, political structures and legal structures continue to value some lives over others, that they tolerate completely the suffering of some people due to poverty, ill health, unsafe work, unsafe housing, and daily harmful interactions with people wielding official power.[footnoteref:24] i am thinking of a friend, a young indigenous man who told me recently of his humiliating encounter with police who stopped him as he was walking home from work one evening. i am thinking of another friend, who grew up trying to protect and watch out for his sisters, young indigenous girls, as they sold their bodies on the streets of saskatoon. [21: rob nixon, slow violence and the environmentalism of the poor (boston: harvard university press, 2013).] [22: see paul farmer, pathologies of power: health, human rights, and the new war on the poor (berkeley: university of california press, 2005) at 50.] [23: chris cuneen, “indigenous incarceration: the violence of colonial law and justice,” in phil scraton and jude mcculloch, eds., the violence of incarceration (new york: routledge, 2009) 1. ] [24: see generally, james a. tyner, violence in capitalism: devaluing life in an age of responsibility (lincoln: nebraska university press, 2016).] but of course, this story of risk, crisis and violence is not the whole story. for every act of violence and destruction, there are many who work to build and mend and knit together community. in the wake of slow violence, communities come together to heal, build, and create hope. in every act of dehumanization there are those who deeply honour the dignity of people. in the face of every dystopian imaginary are dreams and visions of a better world. the most powerful movements in this regard have arisen from the communities most deeply affected by injustice – the blacklives matter that has arisen in the wake of police violence towards black men and women in american cities,[footnoteref:25] and, closer to home for me, idle no more, a global movement for justice for indigenous people that was started by four women in my home city of saskatoon.[footnoteref:26] you may think of and name movements for justice and groups working for justice that have arisen in your home communities also. these movements arise from the knowledge and experiences of people who have faced crises and devastating injustice. they do not accept that the world can remain as it is and are moving forward to build a better world. [25: see: http://blacklivesmatter.com/about/ and ] [26: see: http://www.idlenomore.ca/ and see the kino-nda-niimi collective, the winter we danced: voices from the past, the future, and the idle no more movement (winnipeg: arp books, 2014).] 3. where are law schools in this world of risk? where are law schools situated in this world of risk and crisis? do we accept the world as it is, as if the current situation is natural and inevitable? do we navigate the status quo? or do we stand with those who dream of and work towards a better world? in my experience and understanding, law schools as a rule do not devote a massive amount of attention or time to the consideration of the complex problems that shake our world and to thinking about how law and the legal profession might respond. indeed, to the contrary, it seems to be the case that at least in canada, most first year law students spend more time thinking about arcane features of nineteenth century england from which so many of the cases arise than they do seriously contemplating the deep and growing problems of our world at this moment. of course – that is the legal method – looking backwards for precedent and solutions, while continuously claiming neutrality, placelessness, and what elizabeth mcdowell calls ““point-of-viewlessness”.[footnoteref:27] [27: elizabeth l. macdowell, “law on the street: legal narrative and the street law classroom” (2007) 9 rutgers race and l. rev. 285 at 317. see also the discussion in deborah l. rhode, the trouble with lawyers (oxford: oxford university press, 2015) at 129.] in fact, as critical observers have noted, legal education tends to obsessively focus students’ attention away from the social, economic and political contexts within which legal problems are created and that, far from promoting neutrality, this approach tends to promote conservative ideological orientations in law students and a desire to maintain the status quo.[footnoteref:28] in a fascinating study of the discourse practices of first year law school classrooms in the united states, elizabeth mertz observed that law professors routinely stop students from engaging in discussions about morality, justice and political contexts, admonishing them that such discussion is irrelevant to the legal method.[footnoteref:29] another powerful critique comes from robin west, who has recently written about law schools’ avoidance of serious discussion about justice and what justice might demand of law and lawyers. west writes: “inside the law schools, inside the classroom…one gleans no indication whatsoever that justice and what it might require are even marginally relevant to the study of law, much less central to it.”[footnoteref:30] she goes on: “the near-universal and indeed near-militant avoidance of the concept of justice in the very educational institutions that should centralize its study…is so indefensible (and so rarely defended) as to be fairly labeled pathological.”[footnoteref:31] according to west, by failing to engage with questions of justice, it is as though, “to take a rough analogy, medical schools gave no shrift whatsoever to a study of what it is that makes for a healthy human.”[footnoteref:32] [28: see, for example, janet moser, “legal education: nemesis or ally of social movements?” (1997) 35 osgoode hall lj 613; ] [29: elizabeth mertz, the language of law school: learning to “think like a lawyer” (new york: oxford university press, 2007).] [30: robin l. west, teaching law: justice, politics, and the demands of professionalism (cambridge: cambridge university press, 2014) at 26.] [31: ibid at 27.] [32: ibid at 26.] the result is that legal education tends to promote what janet mosher has called an “anti-critical approach” to lawyering emphasizing a model where lawyers represent individual clients, and client troubles are understood as individual and private – disconnected from larger forces such as colonialism, racism and economic structures. [footnoteref:33] mosher writes that legal education “prepares students to work within the existing order, marginally, incrementally modifying it through ligation,”[footnoteref:34] and goes on to note that “a reasonable deduction which follows is that lawyers trained in this anti-critical educational environment are unlikely to see client problems as anything other than individual problems, are unlikely to search for systemic patterns of oppression, are unlikely to attempt to understand the structural roots of client problems, are even less likely to challenge those structures.”[footnoteref:35] in other words, legal education tends to produce lawyers who see themselves as technocratic solvers of individualized problems, maintainers of the existing order, and ill-prepared to engage with the large, systemic problems that haunt our world. [33: supra note 28 at 626.] [34: ibid.] [35: ibid.] there are costs to these tendencies in legal education to eschew discussions about justice and to turn away from a moral engagement with the complex problems of the world: some researchers have connected these tendencies at least in part to the widely observed phenomenon of law students becoming dispirited, unhappy and deeply cynical about the possibility of the world becoming better.[footnoteref:36] and the legal profession as a whole is undermined when we fail to centralize the advancement of justice in our law schools: as sameer ashar has argued, the legal profession’s social power depends at least in part on a public conception that it has an interest in a wider public good and this power is eroded when we fail to take this focus on the wider public good seriously. [footnoteref:37] [36: see robert granfield, making elite lawyers: visions of law at harvard and beyond (new york: routledge, 1992). on lawyer and law student unhappiness and cynicism more generally, see peter h. huang and corie rosen felder, “the zombie lawyer apocalypse” (2015) 42 pepperdine l rev 727. ] [37: sameer m. ashar, “deep critique and democratic lawyering in clinical practice” (2016) 104 california l rev 193 at 203-204. ] of course, i know it is more complicated than i have described – and there are strong countercurrents within legal education (beyond clinics) that seek to deal with questions of justice and the role of the legal profession in advancing justice in our world. law students themselves have incredible agency to resist the dominant messages that they receive and work towards justice. but these changes and acts of resistance tend to remain peripheral to the main curriculum and the messages that it imparts. 4. clinical legal education in a risk-filled world and this brings us to clinics and clinical legal education. where are we located in this world of risk and crisis? i propose, in the footsteps of many clinical law educators, that clinical legal education is ideally situated to engaging law students and law schools with the ongoing deep injustices in our world and to helping them develop the capacities to imagine and build a more just world. when we think about clinical legal education in this way, we can see that it can take its place as a crucial part of the soul of legal education – as the part of legal education where questions of injustice and justice are taken seriously and where we practice, theorize, and reflect on the role of law, legal systems, and lawyers in our world. in a time when law schools generally seem to be in search of a soul or a solid foundation, this function of clinical legal education is more important than ever. of course, clinical legal education has in its very dna a commitment to standing on the side of social justice and a desire to educate students for justice. one of the early american founders of clinical legal education, william pincus, wrote that the purpose of clinical legal education is for students “to recognize what is wrong with the society around them – particularly what is wrong with the machinery of justice in which they are participating and for which they have a special responsibility.”[footnoteref:38] almost half a century later these words still resonate. [38: william pincus, “educational values in clinical experiences for students”, council for legal education for professional responsibility newsletters 1969-1972 [quoted in stephen wizner, “the law school clinic: legal education in the interests of justice” (2001-2002) 70 fordham l rev 1929 at 1934.] but there is a risk that is very present right now in clinics in canada, and elsewhere, that clinical legal education becomes a site for skills and competencies training for the status quo. in canada and elsewhere there is pressure on law schools from the legal profession and regulators to do even more to train law students to be ready to embrace practice within the context of the current order. as sameer ashar and others have pointed out, this current order has produced a profession that is increasingly disaggregated, outsourced, commodified, transient, and technocratic (to the point where some futurists are predicting that robots could take over many functions of lawyers).[footnoteref:39] the danger is that by taking on a skills training mandate to prepare students to conform to the profession’s desires for competency, clinics lose their ability to imagine and build new modes of practice in the face of injustice. i am reminded of a quote from the critical pedagogical writer paulo freire, who wrote that [39: ashar, supra note 37 at 206. see also margaret thornton, “technocentrism in the law school: why the gender and colour of law remain the same” (1998) 36 osgoode hall lj 369 and richard susskind and daniel susskind, “technology will replace many doctors, lawyers, and other professionals” harvard business review (october 11, 2016), online at https://hbr.org/2016/10/robots-will-replace-doctors-lawyers-and-other-professionals (accessed november 22, 2016).] “the more education becomes empty of dreams to fight for, the more the emptiness left by those dreams becomes filled with technique, until the moment comes when education becomes reduced to that. then, education becomes pure training, it becomes pure transfer of content, it is like the training of animals, and it is a mere exercise in adapting to the world.[footnoteref:40] [40: paulo freire, pedagogy of indignation (london: routledge, 2004) at 84. ] although i am critical of this impulse towards seeing clinical legal education as primarily skills training to adapt to the world, devoid of dreams to fight for, i also empathize with law students who are facing unprecedented pressures to become more marketable in an increasingly difficult job market, and who are graduating in many cases with overwhelming levels of tuition debt.[footnoteref:41] they are bearing the brunt of multiple policy decisions made not by them but by many decision makers over the years, including the reduction of public investment in higher education under neoliberal regimes.[footnoteref:42] clinics provide valuable experiences and skills that can of course be carried forward into all sorts of legal careers, and this is fine. however, i propose that if clinics are to fulfill their potential to be the place within legal education where serious engagement with deep questions of injustice and justice occurs, then clinics need to resist pressures to become primarily sites of status quo skills and competencies training – as places where students learn techniques to merely adapt to the world. [41: see law students’ society of ontario, “just or bust: results of the 2014 survey of ontario law students’ tuition, debt, & student financial aid experiences” online at http://lsso.ca/wp-content/uploads/2014/09/lsso-report-2014.pdf (accessed november 22, 2016).] [42: see margaret thornton, “deregulation, debt, and the discipline of law” (2014) 39 alternative l j 213 and henry a giroux, “neoliberalism’s war on higher education” (chicago: haymarket books, 2014).] i would like to suggest then that rather than merely training students to adapt to the world as it is, clinical legal education bears witness to a world in crisis and builds and renews the justice commitment within legal education: it can give legal education “dreams to fight for”. i suggest that there are two essential contributions that clinical legal education makes in this regard. first, clinics are a site where we encounter, are unsettled by and learn to understand injustice. second, clinical legal education is a site for imagining justice and new modes of legal practice that promote and even prefigure justice. in other words, clinical legal education is a place where we learn about how responding to the risks of the world is both rewarding and essential. place to encounter and understand injustice the first key contribution of clinical legal education is that it is a site where we encounter and begin to understand injustice and specifically, law’s relation to injustice and harm in communities. in clinics, we are shaken awake from viewing the status quo as acceptable because we encounter the suffering and trouble that flows from our current order. we start to see more clearly how risk and violence are unevenly distributed in society so that some individuals, including most legal system insiders, are shielded from this risk while others, including most clinic clients, are immersed in it on a daily basis.[footnoteref:43] we also begin to see how, as social justice physician and activist paul farmer says “social forces ranging from poverty to racism become embodied as individual experience.”[footnoteref:44] [43: david abbott, anwen jones and deborah quilgars, “social inequality and risk”, in peter taylor-gooby and jens zinn, eds., risk in social science (oxford: oxford university press, 2006) at 228.] [44: supra note 22 at 30. emphasis in original.] valerie fournier has written that in order to seriously consider what justice requires of us, we first need to establish a “sense of estrangement” to make the “normal”, the currently possible, look strange, absurd, even grotesque.”[footnoteref:45] this encounter with the absurdity and the ugliness of our “normal” world is something that happens all the time in clinical legal education. in our work at classic the situations that law students encounter are often painful and difficult. we have worked with many indigenous men and women who have had brutal and humiliating experiences at the hands of police. we have worked with young men in prison who are held in solitary confinement, unable to contact sick family members. we have worked with people living in housing without running water or working heat in the winter, and who are evicted to become homeless. we have encountered clients who have been charged with welfare fraud when they have failed to report a small modicum of income that helps them feed their children and keep a roof over their head. law and legal processes have sanctioned all of these situations, too often failing to curb the slow violence perpetuated by the current order and the quick and often brutal violence of the police and carceral apparatuses that protect it.[footnoteref:46] [45: valerie fournier, “utopianism and the cultivation of possibilities: grassroots movements of hope” in martin parker, ed., utopia and organization (oxford: blackwell pub, 2002) 189 at 194. ] [46: see loic wacquant, punishing the poor: the neoliberal government of social insecurity (durham: duke university press, 2009) for an in-depth analysis of this phenomenon.] but our ability in clinics to truly see or comprehend the injustice that we witness is incomplete if we do not work in solidarity with communities. there is a danger that we will see our clients’ experiences as individual and isolated. i would suggest that this task of working with our communities to seek to understand the injustice that communities face is an area that should be central to the work of clinics, and that working with communities who are the experts in these things can be one of the hugest rewards of clinical legal education. i also think the knowledge and analysis generated through such collaborations with communities can also inspire and engage law students and legal scholars and researchers outside of the clinical context, and could be an important intellectual contribution to the mandate of law schools to engage in meaningful legal research and scholarship.[footnoteref:47] [47: see jeanne charn and jeffrey selbin, “the clinic lab office” (2013) 1 wisconsin l rev, who call for law clinics to become sites for empirical research and knowledge production. ] at classic, we have embarked on a few projects that seek to work with community members to interpret and analyze injustice and to gain understanding of the impacts of the current legal regime on our community. for example, we have engaged in community based critical education projects that bring law students and community members together not in a relationship of lawyer and client but rather as co-learners to delve into discussions of justice and injustice. one initiative involves bringing together law students and other university students together with former members of street gangs in a semester long class held at a local community centre. in this class, which we call “wahkohtowin”, which means “kinship” or “relationship” in cree, we read legal texts and discuss justice issues in our city.[footnoteref:48] for example, we read the statutory provisions that govern the use of solitary confinement in canadian prisons – and then we discuss the legal text in light of the experiences of people in the room who have experienced directly the painful force of this text. we read saskatoon’s municipal panhandling bylaw and then discuss it in light of people’s lived experiences and knowledge of how the law is mobilized against marginalized people. what has emerged from the discussions in this class is a very powerful critique of the way the legal system, despite its pretenses of objectivity or neutrality, functions too often as a club for the privileged, how law all too often fails to meaningfully check the exercise of power against vulnerable bodies and indeed how the words of legal texts can be transcribed violently onto the bodies of people. [48: for more details see: sarah buhler, priscilla settee and nancy van styvendale, “’we went in as strangers, and left as friends’: building community in the wahkohtowin classroom” (2015) 1 engaged scholar journal 96 and sarah buhler, priscilla settee and nancy van styvendale, “teaching and learning about justice through wahkohtowin” (2014) 4 annual review of interdisciplinary justice research 182.] we have also engaged at our clinic in community research and consultation projects, where we talk to community members and clients about their experiences in the justice system. this has helped us understand better how law and the justice system work in our community and has led to some important insights. for example, in a research project, we asked community members about their thoughts about access to justice. what we heard is requiring us to learn to reframe the problem not so much as one of access to courts and dispute resolution systems, but a problem of a justice system that is suffocating community members through welfare rules, child apprehension regimes, policing, and prisons.[footnoteref:49] [49: the results of this qualitative research project will be published in the future. but findings are consistent with other similar projects where members of marginalized communities have been very critical of the dominant justice system. see, for example, amanda dodge, “access to justice metrics informed by the voices of marginalized community members: themes, definitions and recommendations arising from community consultations” (paper prepared for the canadian bar association envisioning equal justice initiative, 2013) online at http://www.cba.org/cbamedialibrary/cba_na/images/equal%20justice%20-%20microsite/pdfs/community_voice_paper.pdf (accessed november 22, 2016). as roderick macdonald wrote, “[g]reater access to institutions that are the source of one’s oppression is hardly a desirable outcome.” roderick a. macdonald, “access to civil justice” in peter cane and herbert m. kritzer, eds., the oxford handbook of empirical legal research (oxford: oxford university press, 2010) 492 at 518. ] when clinics, clinical students and communities work together to name, and analyze the injustice that exists in our communities, the “normal world” becomes strange, absurd and frankly unacceptable. to quote paulo freire, we begin to see that our current reality is a “perverse reality”[footnoteref:50] – that it is a reality that calls for change. we begin to see larger patterns that create what otherwise appear to be individual or isolated legal problems. we also confront the ways in which law and our legal system are implicated in ongoing injustice. [50: supra note 40 at 72.] place to imagine & practice justice build the world we wish to see and this leads me to the second major contribution of clinical legal education: and that is the creative and vital work of imagining justice and trying to understand what this demands from the legal profession. freire wrote that it is not possible to transform the world without a dream of what justice would look like,[footnoteref:51] and in clinics, we start to imagine and dream a more just world, and we see that the dream of justice is completely entangled up with action and work for justice. in this sense, while legal education as a whole has been described as sowing cynicism, clinical legal education is at its heart profoundly hopeful, even in the face of extraordinary risk and crisis. this is perhaps because in clinical legal education, a response to injustice is always demanded. there is no ability to sit back or retreat to a place of abstraction or pure critique. there is no ivory tower. rather, constant action and constant reflection are required. we learn in clinics that law and the legal system are made up of humans and a relentless series of human decisions and that therefore there remain openings for change and movement within them.[footnoteref:52] we see what loic wacquant means when he writes that the current injustices of the world “are not preordained necessities but the results of struggles involving myriad agents and institutions [and that] other historical paths were open, and remain open, however narrow and improbable they may be.”[footnoteref:53] in clinics, we learn to locate those narrow and improbable paths that may lead to a more just world. [51: ibid at 31.] [52: as valerie fournier writes: “nothing is the product of autonomous, inevitable, faceless forces, everything has to be decided.” supra note 45 at 200.] [53: loic wacquant, punishing the poor: the neoliberal government of social insecurity (durham, nc: duke university press, 2009 at xx.] just as understanding injustice requires us to learn from our clients and communities who experience it directly – the work of imagining and practicing justice along those narrow and improbable paths is best done in collaboration with the marginalized yet resilient and agentic communities that are already on this journey. at classic, when we collaborate and listen to our community partners and clients, the vision of justice that arises is not an abstract one but rather is grounded in relationship and place. it has to do with healthy families, parents able to raise their children without fear of child apprehension, food security, safe housing, and the ability to walk on the streets without fear of police, a society where youth have hope for the future. so how do clinics respond and what does this mean for our pedagogy and practice? i think each of you and the communities with which you work will answer this differently depending on the particular way that the risk and crises of the world take form in the place where you work. at our clinic, classic, we are involved in both systemic initiatives that seek to address the underlying issues that give rise to injustice in our community, as well as a continuing commitment to individual client advocacy. thus, classic engages in working with a renters’ rights group on housing issues, working in collaboration with community partners on prison rights issues, addressing issues to do with the sentencing of indigenous people in the criminal justice system, and many more projects. but we also recognize that individual advocacy in courts and tribunals can be a site for practicing law in a way that tries to promote justice. at classic, we developed what we call our “philosophy of practice” in consultation with community partners, and the rich clinical literature in this area, to guide our individual advocacy with clients. this document, which acknowledges that our clients are the experts in their lives, acknowledges that legal processes are usually only one part of the solution to any problem that our clients face, and explicitly makes a social justice commitment, is a document that students grapple with and reflect on during our term. [footnoteref:54] it helps reveal that all legal practice is rooted in (usually unstated) ideologies and philosophies, and is a good document to have on hand as students consider the roles of lawyers and law students in communities. [54: see http://www.classiclaw.ca/uploads/1/6/8/5/16850750/classic_philosophy_of_practice_approved.pdf] in our clinic, we are also seeking to try to understand whether and how legal practice can be “decolonized”. this project involves lots of community engagement and work with our cultural advisor and others. it has led already to concrete changes in our practice: for example, students learn as part of their orientation to the clinic about the meaning and significance of smudging within indigenous traditions of our territory, and learn how to smudge with clients who request this. we are incorporating education about indigenous legal traditions in our training program. one of our indigenous students has recently taken on a practice of acknowledging treaty territory whenever he speaks in court – a practice that calls attention to the colonial history of the institution and the larger context of land and the relationship between indigenous and non-indigenous people. sameer ashar has argued that clinics can be vital sites for “ generating new visions of practice.”[footnoteref:55] this work of imagining, theorizing, implementing and then critically reflecting on these new modes of practice that promote the visions of justice articulated by our communities is a crucial and deeply rewarding task of clinical legal education. [55: supra note 37 at 224.] 5. conclusion paulo freire wrote: nobody can be in the world, with the world, and with others in a neutral manner. …it is impossible to study without any commitment; as if mysteriously and suddenly we had nothing to do with the world…[we must always ask] in favor of what do i study? in favor of whom? against whom do i study?[footnoteref:56] [56: supra note 40 at 60.] now more than ever, as the injustices in our world keep mounting, as we see that law and the legal profession have helped to build and maintain this world, and as the feeling of risk and danger keeps rising around us, the fact that it is impossible to be neutral in relation to the world is more obvious than ever. in the face of this world of risk, we must continually ask, with freire, “in favour of what do we study? against who so we study?” i propose that clinical legal education can and should embrace its role as a central place within legal education where we study, learn and practice in favour of justice, where we study, learn and practice against injustice. this is the reward of clinical legal education in our world of risk. 7 foreword this is the fourth edition of the international journal of clinical legal education. the journal draws on contributions from the first international journal of clinical legal education conference which took place in london in july 2003 and from other contributors. the conference drew together a wide range of international participants; from those just developing an interest in clinical legal education to those with a wealth of experience to share and was a rare opportunity to spend time discussing and reflecting on all aspects of clinical legal education. this edition of the journal reflects this and includes a number of common issues that were discussed both formally and informally at the conference, in particular, articles on the nature of clinical scholarship by frank bloch and research on the effectiveness of problem based learning from northumbria. in addition, the seemingly tireless efforts of clinicians to keep expanding the clinical method further and over a wider geographical area is in evidence with articles from sue campbell in australia, emilija stankovic karajovic in serbia and jay pottenger, who writes about his experiences in china. following the production of this edition of the journal i will be handing over editorship to philip plowden, associate dean of clinical legal education at northumbria. i would like to thank sheila bone of northumbria law press and the editorial board who have given me tremendous support and assistance over the years and i wish the journal well for the future. cath sylvester editor foreword 5 6 journal of clinical legal education july 2004 reviewed article 4 the role of law clinics in the fight against statelessness by the united nations high commissioner for refugees (unhcr) in nigeria maryam idris abdulkadir, baze university, nigeria* abstract statelessness has become a global phenomenon. statelessness simply means that a person does not belong to any country in the world. it means that a person does not have a nationality or any means to prove his or her nationality. the united nations high commissioner for refugees (unhcr) has embarked on a fight against statelessness. the unhcr have estimated that 10 million people in the world are stateless, one million of which are located in west africa, although no figure has been estimated yet in nigeria. however, because of numerous factors, the unhcr has brought the fight against statelessness to nigeria. they have mapped out their strategies in a national action plan (nap) in 2018, and among such strategies are awareness and sensitization. they are of the belief that nigerians are not aware of the concept of statelessness. to test their assertion, empirical research was conducted for this paper via a questionnaire. one of the major consequences of statelessness is that stateless persons are deprived from enjoying their basic fundamental human rights like the right to freedom of movement, civil and political rights and the right to access of certain services which include access to health care and access to justice. more so, reviewed article 5 the universal declaration of human rights states that everyone has a right to a nationality, which means the very notion of being stateless runs contrary to this universal basic right. this paper submits that derivation of fundamental rights especially access to justice is a social justice issue that could be handled through public interest lawyering. these twosocial justice and public interest lawyeringform part of the clinical legal education (cle) curriculum, therefore a nexus is immediately formed between cle and the fight against statelessness. from the results of the research conducted in this paper, it is recommended that the service component of cle, which is the law clinics, can assist the unhcr in the fight against statelessness in nigeria by actualising some of their strategies contained in the nap which include but not limited to; sensitization and awareness. the unhcr also raised a red flag on lack of data on this issue; again, this paper recommends that law clinicians can be their foot soldiers and aid in gathering the necessary data through client interviews and outreach activities. lastly, the benefits of this partnership between the law clinics and unhcr to the law clinicians was also outlined, as it will be of extreme benefit to them and it would lead to the achievement of the ultimate outcome and objective of cle . keywords: statelessness, nationality, identity, access to justice, human rights, law clinics, social justice, public interest. reviewed article 6 1. introduction a “stateless person” is someone who is not considered as a national by any state under the operation of its law1. here, nationality refers to the legal bond between a person and a state2. this bond can best be seen as a form of official membership or belonging which grants upon the national certain rights like civil and political rights as well as duties or service to the state3. a person who is stateless lacks this membership and will be seen and treated as a foreigner by every country in the world. this phenomenon has also been described as “de jure statelessness”4. statelessness can occur for several reasons, including discrimination against particular ethnic or religious groups, or on the basis of gender; the emergence of new states and transfers of territory between existing states; and gaps in nationality laws. whatever the cause, statelessness has serious consequences for people in almost every country and in all regions of the world5. this means that no person should be without a nationality. nationality can be acquired through birth, residency, parentage and marriage and it can be proved by any means of identification e.g., international passport, certificate of naturalisation * lecturer i and secretary of the baze university law clinic 1 article 1 of the 1954 convention relating to the status of stateless persons 2 international observatory of statelessness retrieved from http://www.nationalityforall.org/whatis, last visited, 6th may 2019 3 ibid 4 ibid 5 ending statelessness retrieved from https://www.unhcr.org/stateless-people.html last visited on 7th may, 2019 http://www.nationalityforall.org/whatis https://www.unhcr.org/stateless-people.html reviewed article 7 and nationality certificate etc.6. today, millions of people around the world are denied a nationality. as a result, they often are not allowed to go to school, see a doctor, get a job, open a bank account, buy a house or even get married7. therefore, it means that stateless persons are denied certain basic rights and this makes them one of the most vulnerable and disadvantaged members of our society. at least 10 million people around the world are stateless, according to estimates from the united nations high commissioner for refugees (unhcr)8. in west africa, the figures published by unhcr include 700,000 stateless persons in côte d’ivoire and unknown numbers for the rest of the region, with an estimate of around 1 million.9 nigeria is one country in west africa that has been identified by the unhrc to have stateless persons10. during the course of this research, it was discovered that the data collection for the estimated number of stateless persons in nigeria is still on going. generally, the unhcr has identified certain causes of statelessness in west africa. they reported that statelessness in west africa is largely due to gaps in existing law provisions on citizenships and other factors such as limited access to documentation, including birth certificate, nomadism, migration and transfer of territory among 6 a paper presented by unhcr at statelessness training on the 22-23rd may, 2019, abuja 7 ending statelessness op. cit. p.2 8 who belongs? statelessness and nationality in west africa retrieved from https://www.migrationpolicy.org/article/who-belongs-statelessness-and-nationality-west-africa last visited 1st july 2019 9 ibid 10 ibid https://www.migrationpolicy.org/article/who-belongs-statelessness-and-nationality-west-africa reviewed article 8 others,11 which may be as a result of the refugee and internally displaced crises faced by the country. these stateless persons are, as aforementioned, denied certain fundamental rights, but to be specific, in nigeria, they are denied the right to vote, access to services, and rights to free movement, rights to documentation of any kind and the right to dignity. public interest law and social justice are an avenue designed to improve access to justice for the most vulnerable and disadvantaged members of our society12 and social justice, in particular, involves a consideration of both joint and individual rights and obligations. it ensures that people who need to claim infringement of their human rights but do not have the ability, capacity or position to do so, can have access to justice13. these two mentioned form parts of the curriculum of the clinical legal education (cle) and law clinics in nigeria. hence the question; can law clinics in nigeria play a role to help the unhrc to eradicate statelessness? can the law clinics in nigeria become mechanisms to provide access to justice through social justice and public interest law to those stateless 11 citizenship rights in africa initiative retrieved from http://citizenshiprightsafrica.org/wpcontent/uploads/2019/01/unhcrnigeria_communique-statelessness_dec2018.pdf last visited 7th may, 2019 12 what is public interest law? retrieved from https://law.unimelb.edu.au/students/jd/enrichment/pili/about/what-is-public-interest-law last visited, 7th may 2019 13 what is social justice? https://probonocentre.org.au/wp-content/uploads/2015/09/occ_1_what-issocial-justice_final.pdf last visited 7th may, 2019 http://citizenshiprightsafrica.org/wp-content/uploads/2019/01/unhcrnigeria_communique-statelessness_dec2018.pdf http://citizenshiprightsafrica.org/wp-content/uploads/2019/01/unhcrnigeria_communique-statelessness_dec2018.pdf https://law.unimelb.edu.au/students/jd/enrichment/pili/about/what-is-public-interest-law https://probonocentre.org.au/wp-content/uploads/2015/09/occ_1_what-is-social-justice_final.pdf https://probonocentre.org.au/wp-content/uploads/2015/09/occ_1_what-is-social-justice_final.pdf reviewed article 9 persons that are denied their fundamental human rights? these questions are what this paper seeks to address. 2. the concept of statelessness as mentioned earlier, statelessness refers to the condition were an individual who is not considered as a national by any state under the operation of its law14. this definition has attained the status of customary international law, which means that it applies in all jurisdictions, regardless of whether or not a state is party to the 1954 convention15. those at risk of statelessness include; orphans and foundlings, children of immigrant parents (especially illegal immigrants), persons whose birth was not declared, nomadic groups, border populations, migrants etc. the universal declaration of human rights states that16 ‘“everyone has the right to a nationality” and “no one shall be arbitrarily deprived of their nationality, nor denied the right to change their nationality.”17 while human rights, including the rights to a nationality, are in principle universal and inherent, however, in practice a large range of fundamental human rights are denied to stateless people: they are often unable to obtain identity documents; they may be detained for reasons linked to their 14 art 1 of the 1954 convention on the status of statelessness. 15 a paper presented by unhcr at statelessness training on the 22-23rd may, 2019, abuja 16 un general assembly, universal declaration of human rights, 10 december 1948, 217 a (iii), available at: https://www.refworld.org/docid/3ae6b3712c.html [accessed 2 july 2019] 17 article 15, ibid reviewed article 10 statelessness; and often times they are denied access to education and health services or blocked from obtaining employment. according to the unhcr, the various means to prove nationality are: passport, nationality certificate, certificate of naturalisation, national identity card, voter’s cards, certificate of indigeneity, and birth certificate18. although, they argue that national identity card, voter’s cards, certificate of indigeneity and birth certificates are questionable means to prove nationality mainly due to the means and sometimes unreliable nature of the means and methods of acquiring them19. under resolutions adopted by the united nations general assembly20 unhcr has been requested to lead global efforts to address statelessness, particularly by supporting identification of stateless populations and the protection of stateless persons, as well as promoting efforts to prevent and reduce statelessness. 2.1 fight against statelessness in west africa the states of west africa have acknowledged the statistical numbers and the abovementioned factors that lead to statelessness in the region. therefore, they understand the importance of the fight against statelessness. hence, it came as no surprise that in 2011, during a high-level conference in geneva they made the largest number of 18 a paper presented by unhcr at statelessness training on the 22-23rd may, 2019, abuja 19 ibid 20 resolutions 3274 (xxix) of 10 december 1974; 31/35 of 30 november 1976; 50/152 of february 1996; 61/137 of 25 january 2007. reviewed article 11 pledges to improve their position on statelessness, compared to other regions in africa and the rest of the world21. in the spirit of the commitments made by the states in west africa, unhcr has doubled its effort to fight this phenomenon in this region. it has particularly focused on building the capacity both of governments and of organizations of civil society, by carrying out advocacy and trainings. unhcr has also provided technical advice to authorities to address the situation of populations at risk of statelessness as well as stateless persons and find adequate solutions22. several regional seminars were organized from 2011-2013 in order to sensitize states on the significance of the issue and to develop their capacity to address it. a major event, which took place in the gambia in december 2013 gathered national commissions on human rights, the economic community of west african states (ecowas) court of justice and the judicial and quasi-judicial institutions of the african union. it resulted in the banjul appeal, which lays the foundations for partnership between those institutions and calls upon states and other stakeholders, including the unhcr and ecowas, to take additional steps towards the eradication of statelessness in west africa. in february 2015, government representatives in charge of nationality issues of the ecowas member states met in abidjan for the regional ministerial conference on statelessness in west africa jointly organised by unhcr and ecowas. as result of the 21 nationality and statelessness in west africabackground note retrieved from https://www.unhcr.org/591c20ac7.pdf last visited, 1st july 2019 22 ibid https://www.unhcr.org/591c20ac7.pdf reviewed article 12 conference, the ministers of the ecowas member states adopted a declaration on the eradication of statelessness called the abidjan declaration23. in the declaration, they committed to identify and protect stateless persons as well to prevent and reduce statelessness. this declaration has been endorsed by all heads of states in the ecowas region during the summit meeting held in accra, ghana, on may 19, 201524. in september 2015, during a consultative conference on nationality and statelessness in west africa, the progress achieved since the adoption of the abidjan declaration was evaluated. the evaluation testified to development in the fight against statelessness in west africa25. 2.2 fight against statelessness in nigeria in chapter three of the constitution of nigeria, a person can become a citizen in nigeria by birth, registration or naturalisation26. this simply means that for a person to show a bond between himself and the state of nigeria he/she must possess certificate of birth registration, indigene certificate or certificate of naturalisation or 23 regional treaties, agreements, declarations and related, abidjan declaration of ministers of ecowas member states on eradication of statelessness, 25 february 2015, available at: https://www.refworld.org/docid/54f588df4.html [accessed 1 july 2019] 24 nationality and statelessness in west africabackground note op. cit. p.4 25 ibid 26 section 26, 27 and 28 of constitution of the federal republic of nigeria, cap c 23 laws of the federation of nigeria, 2004 https://www.refworld.org/docid/54f588df4.html reviewed article 13 registration. the data analysis section of this paper will examine if a particular target group have one of these documents nonetheless, as mentioned earlier, nigeriaa west african state and a member of ecowasdoes not have an estimated number of stateless persons, this means no one is sure how many stateless persons are in nigeria, studies were still ongoing as at the time this paper was written. in the communique of the unhcr27, it states that there is limited information on the situation of statelessness in nigeria and that it is important to develop and establish a coordinated process to assess the scope, numbers and risk.28 the communique also states that the lack of comprehensive data on the population also makes it difficult to fully assess and establish the extent of the risk in nigeria and to engage in evidence-based advocacy.29 in addition, the document also reinstated that the effects of statelessness is that stateless persons are deprived of a range of fundamental human rights, such as right to vote, right to access to services (such as justice), right to free movement, right to documentation, right to dignity etc.30 in nigeria, the unhcr31 has identified the following as causes of statelessness in nigeria; 27 ibelong campaign to end statelessness: towards a national plan of action to eradicate statelessness in nigeria: communique 2018 28 ibid 29 ibid 30 ibid 31 ibid reviewed article 14 a) gaps in existing laws on nationality b) limited access to documentationincluding birth certificates c) nomadism, migration and transfer of territory, among others as part of their recommendations for a draft national action plan (nap) to end statelessness in nigeria, the unhcr recommends, among others, five (5) key areas of action to be prioritised for nigeria32: a) research, advocacy and sensitization ( including sensitization and advocacy of top-level administrators and policy makers) b) prevent childhood statelessness c) prevent statelessness in transfer territory d) address gender and other forms of discrimination in issues of citizenship documentation e) ensure protection of stateless migrants/persons 2.3 data presentation and analysis research was carried out for this paper using a questionnaire. between june-july 2019, the questionnaire was printed and distributed among certain target groups; working class, students that are 18 years and above (young adults), students that are below 18 32 ibid reviewed article 15 years33, and street children. two hundred questionnaires were distributed and 6634 were returned. the research was conducted in order to find out if nigerians knew about the concept of statelessness and if they had any means to prove their nationality as nigerians. the questionnaire so far has been answered by the three target groups and the following are the results: 2.3.1 data presentation: a) age value frequency percentage (of the total number of respondents) below 18 40 60.6% above 18 26 39.3% b) gender value frequency percentage (of the total number of respondents) male 40 60.6% female 22 33.3% 33 ethical clearance was sort for this group from their guardian in the school because of their age https://drive.google.com/file/d/18ux3fd12cowalm9qrtwlxm6ldxzdmsyc/view?usp=sharing 34 all returned and filled questionnaires available at https://drive.google.com/drive/folders/1ix26lyvwi84vpq973ghpc6namtn-qzqn?usp=sharing https://drive.google.com/file/d/18ux3fd12cowalm9qrtwlxm6ldxzdmsyc/view?usp=sharing https://drive.google.com/drive/folders/1ix26lyvwi84vpq973ghpc6namtn-qzqn?usp=sharing reviewed article 16 c) occupation value frequency percentage (of the total number of respondents) working class 14 21.2% students above 18 years 12 18.1% students below 18 years 20 30.3% street children 20 30.3 d) ownership of means of identification value frequency percentage (of the total number of each target group) international passport working class: 6 students above 18 years: 2 students below 18 years: 4 street children: nil working class: 42.8% students above 18 years: 16.6% students below 18 years: 20% street children: 0 national i.d card working class: 7 students above 18 years: 2 working class: 50% students above 18 years: 16.6% reviewed article 17 students below 18 years: 3 street children: nil students below 18 years: 15% street children: 0 drivers license working class: 8 students above 18 years: 1 students below 18 years: nil street children: nil working class: 57.1% students above 18 years: 8.3% students below 18 years: 0 street children: 0 voters card working class: 2 students above 18 years: 3 students below 18 years: nil streets children: nil working class: 14.2% students above 18 years: 25% students below 18 years: 0 street children: 0 birth certificate working class: 6 students above 18 years: 4 students below 18 years: 18 working class: 42% students above 18 years: 33.3% students below 18 years: 90% street children: 0 reviewed article 18 street children: nil nil street children35 100% e) do you have dependants? value frequency percentage (of the total number of respondents) yes working class: 8 students above 18 years: 3 16.6% 25% no 55 83.3% f) if your answer above is yes, what means of identification do your dependents have? value frequency percentage (of the total number of respondents) international passport 4 6% national i.d card 6 9% driver’s license 1 1.5% voters card 4 6% 35 all the street children that answered the questionnaire did not have any means of identification. although, two of these children claimed that the have a means of identification, unfortunately their claim was not verified during the course of this research. reviewed article 19 birth certificate 6 9% nil 1 1.5% g) do you know about the concept of statelessness? value frequency percentage( of the total number of each target group) yes working class: 7 students above 18 years: 2 students below 18 years: 2 street children: nil working class: 50% students above 18 years: 16.6% students below 18 years: 10% no working class: 7 students above 18 years: 10 students below 18 years: 18 street children: 20 working class: 50% students above 18 years: 83.3% students below 18 years: 90% street children: 100% reviewed article 20 h) if answer in 10 is ‘yes’ how did you get to know about the concept of statelessness? value frequency percentage (of the total number of each target group) i have an idea (from the word ‘statelessness’ working class: 6 students above 18 years: 0 students below 18 years: 3 street children: 0 working class: 42% students above 18 years: 0 students below 18 years: 15% conference students above 18 years: 1 student above 18 years : 7% media working class: 1 working class: 7% 2.3.2 data analysis: a) working class: 50% of the people in this group know about the concept of statelessness and 50% do not know about the concept of statelessness or its consequence. of this 50% that know what the concept means, 43% ‘have an idea’ (from the word ‘statelessness’ they can deduce the meaning) what it means. 7 % of this group were sure about the meaning of statelessness, and they acquired this knowledge through the media. they had one or all of these documents: international passport, birth certificate, voter’s card, reviewed article 21 national identification card and driver’s licence. 16.6% of this group have dependants, their wards or dependents also have some of these documents. however only 42% of members of this group had the required document of birth certificate to show a bond with the state according to its laws. within the nigerian context, this does not come as a surprise. the documents the working class group and their dependants have as a means of identification, they own because of socio-economic reasons. for instance, they have international passports because they need to travel, they have drivers licence because it is required by the law before you can drive on nigerian roads, for birth certificates, most schools and work place ask for birth certificates before they give admission or job offers. this writer can confirm this, as the only reason why i went to process my indigene letter from my local government was because it was a requirement to write exams into higher institutions. therefore, the reason for having these documents is not to reduce avoid being at risk of statelessness, it is for reasons, some of which have been mentioned above. the reason for this is simple, just like the unhcr have reported above; there is lack of awareness and a gap in nationality laws in nigeria. if the law exists and emphasis on the issue of statelessness, it will definitely raise a level of awareness. the grund reviewed article 22 norm of the country, the constitution36 has been criticized for being at the forefront of creating such gaps in nationality laws in nigeria37. some of the areas criticised in the constitution include; presumption of nigerian citizenship for children of unknown parents found in nigeria38, gender discrimination in the acquisition of citizenship by marriage39, naturalization criteria too rigid40, the ease of having dual citizenship41 renunciation of citizenship42 and loss and deprivation of nationality43. all of the aforementioned exposes a gap in the nationality laws of the country and shows that laws lack safeguards against statelessness44. b) students that are 18 and above (young adults): 83% know about the concept of statelessness and 16% do not know about the concept. of the 83% however only 7% could specify what the concept is and how they knew about it, which was through a conference. they have one 36 the constitution of the federal republic of nigeria cap. c.23, laws of the federation of nigeria 2004 37 the normative framework on nationality in nigeria unhcr https://drive.google.com/file/d/1_ro6-ktzgq_tlsm69hog-gn1oicgnoeyg/view?usp=sharing 38 section 25 (1) constitution of the federal republic of nigeria cap. c.23, laws of the federation of nigeria 2004 39 section 26, ibid 40 section 27 (2), ibid 41 section 28, ibid 42 section 29, ibid 43 section40, ibid 44 for further reading on the sections of the constitution criticized by unhcr, please use the link in foot note 36 https://drive.google.com/file/d/1_ro6-ktzgq_tlsm69hog-gn1oicgnoeyg/view?usp=sharing reviewed article 23 or all of the following documents; international passport, birth certificate, national identification card and driver’s licence, and voter’s card. 25% of the respondents in this group have dependents that have most of these documents. only 33% had the required document of birth certificate to show a bond to the state according to its laws. the most striking thing about this group is that majority of the persons in this group know about the concept, from the name of course, but only a few of them had in-depth knowledge of the concept. it is one thing to have an idea or decipher the meaning of a concept from its name and to actually understand the concept and how it applies, and in the instance of statelessness, the risk that such a concept pose. as for the documents they possess the same explanation given above for working adults applies here i.e. socioeconomic reasons prompted them to possess such documents not the issue of statelessness or the risk of being stateless. c) students that are less than 18 years (children): 90% of this group do not know about the concept of statelessness and 10% know what the concept means. 15% state that they ‘have an idea’ (from the word ‘statelessness’ they can deduce the meaning) they have one or all of the following documents: international passport, birth certificate and reviewed article 24 national identification card. an impressive 90% have the required document of birth certificate to show a bond to the state according to its laws. this might be that the national population commission, the agency that has the mandate to register births has put in more effort to register births across the country for a number of reasons. just like the two groups discussed above, some members of this group are torn between ‘have an idea’ and ‘know about’ the concept of statelessness and of course it is no surprise for their age group that majority of them do not know about the concept. again, considering their age it is presumed that they have parents/guardians, therefore the reason outlined for the working class and young adults in regards to possession of these documents applies here the reason being that this group could easily be their dependents. d) street kids45: all the children respondents (note, this group had the questionnaire administered orally because they are unable to read and/or write) identified that they did not have an idea about the concept of statelessness. they were between the ages of 12-14 and those that seemed much younger had no idea of their age. when i 45 they are children that have been sent into towns by their parents to learn islamic education from an islamic scholar but usually end up begging on the streets. in nigeria, they are popularly called almajiri. this is prevalent mostly in the northern part of the country. reviewed article 25 asked them if they had any document to show that they are nationals of nigeria, two of them claimed they did and it is with the scholar they were learning under, however they did not know the nomenclature or title of the document.however, it is safe to say that they do not have any required document to show their bond with nigeria. the above data presentation and analysis of this research hints at the following: i. it seems like majority of the respondents are not aware of the concept of statelessness. looking at all the three target groups individually, half, more than half or all the respondents in each target group seem to lack knowledge about the concept. ii. from their seemingly lack of knowledge, it appears that the adults and their dependants (for those that have dependants) own certain means of identification not to prevent statelessness but for other reasons (requirements of socio-economic activities e.g. drivers licence is compulsory to drive a car and international passports are required for traveling outside the country). more so, a lot of them do not possess the document that will show a bond with the state according to the law. reviewed article 26 iii. it appears that there is an entire group of members of the society growing up without any means of identification or documentation that run the risk of being stateless (the street children). the above analysis of this section of the paper indicates that more research needs to be conducted in this area. the results of this research maybe generalised to the entire population because the persons selected for this research were random. most importantly, the research carried out, although on a small demography of the society, has laid a foundation for the recommendations of this paper. 3. law clinics in nigerian universities the summary of a report of the council of legal education committee on the review of legal education in nigeria submitted on 29th july 2004 was to the effect that law faculties and the nigerian law school should “as a matter of urgency” introduce clinical legal education and that “the faculties are required to provide appropriate facilities, such as clinical consultation rooms” and that “for purposes of achieving interactive teaching, proper training will have to be given to lecturers at the various law faculties and the nigerian law school…. ” 46 46 the development of clinical legal education retrieved from http://www.nulai.org/index.php/blog/83-cle last visited 26th june 2018 http://www.nulai.org/index.php/blog/83-cle reviewed article 27 this led to the nigerian draft legal aid bill which had provisions for supporting legal clinics in the universities47 . consequently, in 2011, the legal aid act by its section 17 recognizes law clinics as legal aid providers48. also, the national universities commission’s49 draft benchmarks and minimum academic standards in the law programme released in august 2004 has identified cognitive and skills competencies as a learning outcome and also introduced “a community-based course: community legal assistance to the poor, minority and the under privileged” in the 4th year class. the benchmark was reviewed in 2010/2011 and clinical legal education cle curriculum was made compulsory, and it was required for all new faculties of law to have law clinic50 another notable development is the establishment of the network of university legal aid institutions (nulai), which has been able to develop and institutionalized clinical legal education through the undertaking of expository and intellectual seminars and workshops which yielded tremendous results51. from 2005-2014, nulai nigeria has seen to the establishment of 17 law clinics in nigerian 47 ibid 48 section 17, legal aid act, cap l9, laws of the federation of nigeria, 2004 49 the national universities commission (nuc) is a parastatal under the federal ministry of education (fme), the main functions of the commission are; granting approval for all academic programmes run in nigerian universities; granting approval for the establishment of all higher educational institutions offering degree programmes in nigerian universities; ensure quality assurance of all academic programmes offered in nigerian universities; and channel for all external support to the nigerian universities. retrieved from https://nuc.edu.ng/about-us/ last visited 29th june 2018 50 the development of clinical legal education retrieved from http://www.nulai.org/index.php/blog/83-cle last visited 26th june 2018 51 ibid http://www.nulai.org/index.php/blog/83-cle reviewed article 28 universities and the nigerian law school. these law clinics are spread over the six geo-political zones of the country52. according to network of universities legal aid institutions (nulai)53, as at 2019, there were 38 law clinics54 in faculties of law across the six geo-geopolitical zones in nigeria55 that have registered with the organisation. keep in mind that there are fiftyfive (55) faculties of law in nigeria56. the above has given a rather a brief assessment of how cle and its service componentlaw clinics-were established in nigeria. 52 ibid 53 network of university legal aid institutions (nulai) nigeria was established in 2003 as a nongovernmental, non-profit and non-political organization committed to promoting clinical legal education, legal education reform, legal aid and access to justice in nigeria and the development of future public interest lawyers. clinical legal education (cle) is the use of any kind of experiential, practical or active training for legal professionals to impact such skills as the ability to solve legal problems. 54aau law clinic, absu law clinic, abu law clinic, akungba law clinic, american university of nigeria law clinic, bauchi state university law clinic, baze law clinic, bu law clinic, caliphate law clinic, dsu law clinic, esut law clinic, ebsu law clinic, elizade university, law clinic, , esu law clinic, imsu law clinic, ksu law clinic, lasu law clinic, legal aid clinic, niger delta university law clinic, nnamdi azikwe university law clinic, nun law clinic, nsuk law clinic, osun state university law clinic, oou law clinic, polac law clinic, renaissance university law clinic, tsu law clinic, unn legal aid clinic, unimaid law clinic, uniuyo law clinic, uniabuja law clinic, uniben law clinic, unical law clinic, unilag law clinic, uniport law clinic, unijos law clinic, women’s law clinic, ysu law clinic. https://www.nulai.org/index.php/partners/clinical-law-programs last visited 1st july, 2019 55 law clinics in nigeria, retrieved from https://www.nulai.org/index.php/partners/clinical-lawprograms last visited, 7th may, 2019 56list of accredited/approved faculties of law in nigeria https://www.myschoolgist.com/ng/approved-faculties-of-law/ last visited 1st july, 2019 https://www.nulai.org/index.php/partners/clinical-law-programs https://www.nulai.org/index.php/partners/clinical-law-programs https://www.nulai.org/index.php/partners/clinical-law-programs https://www.myschoolgist.com/ng/approved-faculties-of-law/ reviewed article 29 4. nexus between law clinics and the fight against statelessness by unhcr recall the definition of statelessness and how its consequences could lead to discrimination and lack of enjoyment of full-blown human rights violation and overall lack of access to justice. this obvious human right issue and lack of access to justice could lead to the conclusion that statelessness could be fought through social justice and public interest law which are embedded in the cle programme57. social justice and public interest law primarily enables students to acquire, by way of experiential learning, the specialised technical knowledge and professional legal skills in social justice and public interest lawyering58 . students are engaged in the supervised preparation and carriage of particular public interest cases or projects such as cases involving possible miscarriage of justice, human rights, and assisting persons seeking asylum protection59 . their objective has been to teach students to employ legal knowledge, legal theory, and legal skills to meet individual and social needs. the end result is that it instils in students a professional obligation to perform public service; and to challenge tendencies in the students toward opportunism and social irresponsibility60 . in addition, they are aimed at educating the neglected members of 57 they both have the same objectives and outcomes see ojukwu e. et al clinical legal education : curriculum lessons and materials network of university legal aid institutions(nulai nigeria),abuja, 2013 58 social justice and public interest law clinics hand book retrieved from https://www.newcastle.edu.au/course/laws6029 last visited 14th october, 2018 59 ibid 60 ibijoke patricia byron the relationship between social justice and clinical legal education: a case study of the women’s law clinic, faculty of law, university of ibadan, nigeria. retrieved from http://www.northumbriajournals.co.uk/index.php/ijcle/article/viewfile/22/27 last visited 14th october, 2018 https://www.newcastle.edu.au/course/laws6029 http://www.northumbriajournals.co.uk/index.php/ijcle/article/viewfile/22/27 reviewed article 30 a community while addressing their legal problems; it is used by clinical law teachers to teach students on how to educate clients on their rights61 . the service component of clinical legal education, (law clinics) using social justice and public interest law, requires the students to carry out the following law clinic activities like; interviewing, counselling, research, writing62, community based services and street law63, and eventually to learn ethics and professional responsibility.64. to emphasise and elaborate this point further, an example of a project carried out by students using social justice and public interest law will be given and discussed. the cle programme at the faculty of law of baze university65 requires students to take the following mandatory courses under its clinical legal education programme: ethics and professional responsibility; one of these three coursessocial justice and public interest law (i & ii), human rights law (i & ii), environmental law (i & ii); and clinical and moot court practice (i & ii). there is a service component attached to the cle program which is the law clinic of the faculty. in the law clinic, students are engaged in a project called reforming pre-trial detention in kuje prison project 61 ibid 62 stuart h. smith law clinic and center for social justice retrieved from http://www.loyno.edu/community/stuart-h-smith-law-clinic-and-center-social-justice last visited 1st july, 2019 63 social justice initiative-in-house pro-bono projects 2018-2019 https://www.law.columbia.edu/socialjustice/students/pro-bono/in-house-pro-bono-projects last visited 64 ojukwu e. et al clinical legal education : curriculum lessons and materials network of university legal aid institutions(nulai nigeria),abuja, 2013 65 baze university is a private university located in abuja, nigeria. the writer of this paper is affiliated with this university. she is also a supervisor of the law clinic and has supervised students on the lcpk project. http://www.loyno.edu/community/stuart-h-smith-law-clinic-and-center-social-justice https://www.law.columbia.edu/social-justice/students/pro-bono/in-house-pro-bono-projects https://www.law.columbia.edu/social-justice/students/pro-bono/in-house-pro-bono-projects reviewed article 31 (reform kuje). this project has similar outcomes with the project suggested in this paper. the project is funded by the united states department for international narcotics and law enforcement (inlc). other partners of the project include; partners global, west africa nigeria and network of university law institutions. the students, under this project, have interviewed and managed the cases over 60 pre-trial detainees at the kuje correctional facility. in addition, on a general note under this project, 10,326 court dates for 836 detainees were inputted into a designated system after training with nigeria correctional services staff and 475 pre-trial detainees in kuje correctional centre were interviewed by students, over 200 detainees were granted access to justice66. to analyse the effect of this type of project on students and to get the feedback of students in general, a questionnaire was given to the first 15 students that were engaged in this project. the result of the questionnaire67 showed that indeed, projects like the kuje reform project and others alike strengthens the skills of students and has quiet an impact on vulnerable people in the society seeing that it has created access to justice for them. this impact, on both students and stateless persons, is what this proposed project will hopefully achieve. 66 reforming pre-trial detention in kuje prison, retrieved from https://www.partnersglobal.org/resources/reforming-pre-trial-detention-in-kuje-prison/ last visited 4th december 2020 67 the focus of this paper is not the lcpk thus data analysis and presentation was not done, however visit the following link to view filled questionnaires by the students, as the point made or emphasised is quite clear from viewing the filled questionnaires. https://drive.google.com/drive/folders/1ldzmsutlnrxhamt2w1sxxfsz0m7yy7vv?usp=sharing https://www.partnersglobal.org/resources/reforming-pre-trial-detention-in-kuje-prison/ https://drive.google.com/drive/folders/1ldzmsutlnrxhamt2w1sxxfsz0m7yy7vv?usp=sharing reviewed article 32 consequently, from the above, social justice and public interest lawyering is important not only because of its effect upon clients and community at large, but also because it takes students out of their comfort zone and puts them in a place where they are not familiar which inevitably, enables them to interact with indigenous people. it teaches them to face certain human rights issues and basically the realities of life; such as the consequence of statelessness. this in turn will help achieve the general outcome and objectives of clinical legal educationto develop the perception, the attitudes, the responsibility and the skills to become a lawyer after completion of the course from law schools68. 5. recommendations finally, based on the above analysis, this a paper recommends the following; a) partnership: this paper recommends that unhcr should partner with law clinics in nigeria for the fight against statelessness. this partnership is recommended for a number of reasons i) the unhcr has already mapped out some strategies like sensitization and awareness in their effort to combat statelessness in 68 jayadev pati, madhubrata mohanty, clinical legal education—a bare necessity in the scientific era, retrieved from https://journals.sagepub.com/doi/abs/10.1177/2322005815607143?journalcode=alea last visited 1st july, 2019 https://journals.sagepub.com/doi/abs/10.1177/2322005815607143?journalcode=alea reviewed article 33 nigeria. these are activities that could easily be done through a project in social justice and public interest lawyering via outreach programs and other activities alike. the students/clinicians will be involved in the proposed activities; they will be the ‘foot soldiers’ that will go to communities and market places to hand out fliers and do jingles, organise seminars in various schools and other organisations just to educate the nigerian public on statelessness. moreover, from the data analysis and presentation section of this paper, there is seemingly lack of knowledge on statelessness, thus, sensitisation and awareness is quite paramount in the fight against statelessness in nigeria. ii) secondly, the unhcr has identified that accurate data in nigeria to know an estimated number of stateless persons, those who are at risk of being stateless and other information alike is missing and getting such data is difficult. the clinicians through the out-reach programs mentioned, which could lead to in-house clients in the various law clinics, with proper documentation and necessary questions asked during client interviews, so much data could be retrieved for the benefit of the fight against statelessness. besides, the little research conducted for the benefit of this paper shows it is indeed possible to reviewed article 34 retrieve information for the proposed project from the public in nigeria. iii) this partnership will not only benefit unhcr’s fight against statelessness. it will be of tremendous benefit to the students/clinicians. it is believed that embarking on this project, especially during outreach programs for awareness, sensitization and in-house advocacy students/clinicians will learn; client interview skills, communication skills, file management and advocacy skills just like they have in a similar project at baze university. after collecting the data the clinicians will eventually be required to write reports to the unhcr and other stakeholders especially the high level government officials and policy makers the unhcr mentioned in the nap draft. this will improve their legal writing and research skills. iv) another important advantage of the recommended partnership is that eventually, victims of statelessness in nigeria or those that risk being stateless and consequently do not enjoy their fundamental rights will have access to justice. more so, sensitization and awareness programs will educate nigerians on the serious and dangerous concept of statelessness which they need as indicated by the data presentation and analysis section of this paper. it would help reviewed article 35 them protect themselves and those around them from the dangers the concept poses. therefore, this partnership will yield a win-win situation for all stakeholders involved. b) another partnership recommended by this paper is between law clinics and government-based agencies involved in issuing means of identification or nationality to nigerians. they could open a one-stop outlet in the law clinics. any client that comes for in-house advocacy on statelessness could be assessed by these agencies and may be processed for issuance of means of identification that will show a bond to the state according to the law. an example of such agency is the national population commission. at this juncture; clinics are advised to uphold the highest standard of ethics for inhouse services. ethical issues like confidentiality and privacy for the client must be upheld at all times. in the alternative, law clinics can also conduct outreach programs where they go to communities to enlighten them on the concept and also in collaboration with relevant agencies may decide to register persons in the community. this partnership would teach students/clinicians the various skills mentioned above and it will also assist the government in nigeria combat statelessness. hence, the proposed partnership with these government agencies may lead to clients having a nationality and getting a means of proving nationality. this means could that the law clinics and clinicians reviewed article 36 would be able to create an avenue for stateless persons in nigeria to first of all enjoy the right to a nationality as granted by the universal declaration of human rights which would eventually lead them to enjoy other fundamental rights and eventually have access to justice. an outcome of social justice and public interest law is achieved! c) more law clinics in nigeria: it has been mentioned in this paper that there are 38 law clinics in nigeria out of the 55 faculties of law in the country. this paper is urging other faculties that are yet to start clinical legal education to do so and establish law clinics in the faculties. the advantages are too numerous to count, however some have been mentioned in the discourse of this paper. the clinics can embark on projects similar to the project this paper recommends and many others that seek to address social menace like statelessness within the community. it should be compulsory for all faculties of law to run a cle curriculum which includes running law clinics. here, implementation is key, we just need will power. to all the other law clinics in operation, this paper is encouraging them not to shy away from projects like the one proposed. it will aid in actualisation of cle objectives and outcomes. reviewed article 37 6. conclusion to answer the two questions poised in the beginning of this paper which are; can law clinics in nigeria play a role to help unhrc eradicate statelessness? can the law clinics in nigeria become mechanisms to provide access to justice through social justice and public interest law to those stateless persons that are denied their fundamental human rights? the answer will definitely be in the affirmative for both questions flowing from the analysis and recommendations made beforehand. statelessness is a serious social issue in nigeria and the service component of cle, law clinics can make a tremendous contribution to fight this issue in nigeria. editorial a festive celebration of innovative clinical scholarship elaine hall northumbria university, uk elaine.hall@northumbria.ac.uk 2016 has been a year ‘packed with incident’[footnoteref:1]. despite – or because of? –this, here at the ijcle we have an embarrassment of riches in clinical scholarship with so many papers that an extra, festive, edition was needed! we are hoping to continue this level of publication in 2017, so please keep your papers coming. [1: a staggering understatement, but it was that or a very long rant.] we begin with a paper developed from the opening keynote speech at the ijcle/accle conference in toronto last july. sarah buhler’s rousing and inspiring perspective on clinical legal education in a dangerous time has become, if anything, more relevant in the intervening months. typifying the clinician’s resilience in the face of challenging circumstances, the integrating theme of our papers and practice reports is innovation. les mccrimmon, ros vickers and ken parish offer a dissection of the emerging field of online legal education, with an overview of the field and a case example from australia that raise a number of important pedagogical and practical questions. online legal study may be in its’ infancy, however this paper challenges us all to consider how it could develop. david collins, eric klotz and ben robinson add to our growing body of work on business clinics[footnoteref:2] with their analysis of the role of law clinics in supporting innovation through advice to commercial start-ups. this paper contains a very useful analysis drawn from the wealth of data the clinic collected from their clients, a fantastically useful model for us all in building our empirical research base. [2: for example, campbell, elaine (2016) recognizing the social and economic value of transactional law clinics: a view from the united kingdom. journal of legal education, 65 (3). pp. 580-596.] our practice report from kenya highlights the limitations that clinics operate within, particularly in terms of their relationships with universities and calls for new structures to support development. a reminder that three organisations are coming together for the 2017 conference. we look forward to welcoming you to newcastle! ijcle – encle cleo the international journal of clinical legal education in association with the european network for clinical legal education and the united kingdom clinical legal education organisation conference 3-5 july 2017 at the university of northumbria, newcastle upon tyne, uk “bringing it all together: clinical legal educators in the 21st century university” clinicians wear many hats: teacher, group facilitator, project manager, lawyer, researcher, mentor, activist, administrator, supervisor, academic, fund raiser, practice manager, collaborator, role model, counsellor… this year’s conference continues our exploration of the key, often overlapping, issues arising for clinical legal education in the 21st century from the clinician’s perspective; juggling sometimes competing priorities and often making difficult choices. papers are invited which consider one or more of these themes below while still encouraging participants to locate their papers either mainly in one of those areas or by exploring the overlaps. themes: · the clinician and community needs · the clinician and research into the impact of clinic · the clinician and academic identity · the clinician and curriculum and student learning in particular, we would like to encourage participants to include student and other partners’ voices in their presentations, ideally through collaborative writing and presentation in person or through video calling or recordings. taking part presentations at ijcle/encle/cleo can take one of three formats, each with its own structured proposal application form: · paper presentation · these will be in traditional conference paper format, with a twenty minute presentation followed by questions. participants will be invited to indicate if their paper falls into one or more of the four areas: community need; curriculum and students; academic identity; research and impact. · interactive seminar · these sessions will be 90 minutes long, will involve active participation from the audience as well as input from the presenters and will be designed to generate discussion and new learning for the participants and the convenors. participants will be invited to indicate if their seminar falls into one or more of the four areas: community need; curriculum and students; academic identity; research and impact. · pechakucha · a pechakucha consists of 20 slides timed to change every 20 seconds, so each presentation lasts 6 minutes and 40 seconds. each presenter in pechakucha session will be assigned a 10 minute slot to allow for a question to be posed. we anticipate that pechakuchas will consist of short introductions to new work, methodological innovations or insights from the field. please follow this link to learn more. participants are encouraged to offer pechakuchas in addition to traditional papers. key dates • call for papers, seminars and pechakucha opens – november 21, 2016. please follow this link to submit and learn more. • call for papers, seminars and pechakucha closes – january 31, 2017 • confirmation of papers, seminars and pechakucha accepted for the conference – rolling through december and no later than february 10, 2017 • registration opens – january 16 2017 • early-bird registration closes – march 3, 2017 • registration closes – june 2, 2017 • deadline for submission of papers and outlines to website. – june 9, 2017 6 practice report 117 law schools as legal aid providers in kenya: challenges and lessons learnt from practice asha mikinyango1 and judith nguru, daystar university and mount kenya university, kenya2 abstract legal aid is the provision of free or subsidized legal services to mainly poor and vulnerable people who cannot afford advocate fees. the right to legal aid is well rooted in the international, regional human rights treaty framework to which kenya party. the provision of legal aid addresses the concerns of the poor and vulnerable by focusing on challenges that foil access to justice. in recognition of this, the government of kenya promulgated the legal aid act, 2016 establishing the national legal aid service to provide legal aid services to needy, marginalized, and vulnerable persons. this was a very important move, propelling the government to prioritize legal aid provision as a right as well as a necessity for promotion of rule of law and access to justice. however, it is imperative to understand that the duty does not squarely fall on the state alone. there is need for non-state actors’ support from private entities like law firms, ngos, law schools and any other qualified legal personnel. without a 1 asha mikinyango is an advocate of the high court of kenya and teaches law at daystar university school of law, nairobi kenya. orcid id 0000-0002-7346-4709. 2 judith nguru is an advocate of the high court of kenya and a lecturer at mount kenya university school of law. orcid id 0000-0002-5768-850x. practice report 118 doubt, several non-state actors are actively offering free or subsidized legal aid and the purpose of this paper is to look at the lessons faced by a non-state actor from the experience of the authors organizing and running events to offer free legal aid. this includes expounding on challenges faced such as constrained funding, language barrier, illiteracy, and ignorance of legal rights. the punchline here is that there is room for all stakeholder to come together and forge a way forward for an improved legal aid framework in kenya. keywords: law schools, legal aid clinics, legal aid, free legal services, kenya, access to justice, rule of law. 1. introduction in recent years, the value of law schools involvement in legal aid delivery has gained footing in kenya. law schools, through legal aid clinics, have come to play a significant role in providing meaningful legal services that are responsive to the community’s demand. this article is designed to assess the role of law schools in promoting the right of legal aid through running legal aid clinics in kenya. the article highlights the challenges faced by law schools in the provision of legal aid and proposes strategies for sustainable legal aid service. the authors bank on their personal experience in coordinating and organizing legal aid clinics while teaching at a local university. the article is organized in five parts. part i generally provides the legal foundation for legal aid provision in kenya. part ii looks at the role of law schools as legal aid practice report 119 providers. a contrast is drawn from the status of law school-based legal aid clinics in kenya with those in south africa. this is followed by part iii that entails a detailed description of how the legal aid clinics ran by the mount kenya university school of law were organized by the legal aid committee, of which the authors were members of. thereafter, part iv sets out the internal and external challenges faced in the running of the legal aid clinics, and lastly part v discusses the lessons learnt together with proposals on how to mitigate those challenges. part i provision of legal aid in kenya the legal foundation legal aid has for long been deemed a necessary component attached to several human rights established by international laws such as of rule of law, right to fair trial and access to justice all of which empower individuals.3 legal aid refers to providing legal advice, representation in court or alternative dispute resolution mechanisms, as well as creating awareness for persons who cannot afford to pay for legal services.4 the right to free legal assistance for persons accused of crimes is a widely accepted principle of law as it is believed to empower individuals and communities, contribute to the reduction of poverty and promote the protection of human rights.5 it is therefore 3 henry brooke, the history of legal aid 1945 -2010’ (2007) bach commission on access to justice – appendix 6 <file:///c:/users/user/appdata/local/temp/bach-commission-appendix-6-f-1.pdf > accessed 11 november 2020. 4 section of the legal aid act, no 6 of 2016 (hereinafter known as the act). 5 united nations office on drugs and crime, global study on legal aid: global report (2016) <https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahu kewi9govnl_3sahujubuihxz3assqfjaaegqiarac&url=https%3a%2f%2fwww.unodc.org%2f https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahukewi9govnl_3sahujubuihxz3assqfjaaegqiarac&url=https%3a%2f%2fwww.unodc.org%2fdocuments%2fjustice-and-prison-reform%2flegalaid%2fglobal_study_on_legal_aid_-_final.pdf&usg=aovvaw3io7h-zeujyedxxdsvpwt1 https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahukewi9govnl_3sahujubuihxz3assqfjaaegqiarac&url=https%3a%2f%2fwww.unodc.org%2fdocuments%2fjustice-and-prison-reform%2flegalaid%2fglobal_study_on_legal_aid_-_final.pdf&usg=aovvaw3io7h-zeujyedxxdsvpwt1 practice report 120 an essential tool for providing access to justice and promoting the rule of law. in recognition of this, legal aid programs have been implemented in many states all over the world, including kenya in the form of the state, bar associations and nongovernmental organizations free legal services to the financially challenged citizens.6 for example, the kenyan constitution paved way for individuals accused of crime punishable by death to be provided an advocate by the state where they could not afford one.7 at the same time independent bodies such as the law society of kenya and kituo cha sheria were already providing pro bono services.8 the global movement on access to legal aid has been strengthened by the adoption of the united nations principles and guidelines on access to legal aid in criminal justice systems.9 these principles form the first international instrument that deals with legal aid and has propelled member states to provide, protect and promote the right to legal aid as a stand-alone statutory right. these principles provide for both documents%2fjustice-and-prison-reform%2flegalaid%2fglobal_study_on_legal_aid__final.pdf&usg=aovvaw3io7h-zeujyedxxdsvpwt1> accessed 12 november 2020. 6 ibid 3 7 constitution of kenya 2010, art 50(2) (g). also see john mbugua and another v the attorney general and 16 others (2013) eklr 8 also referred to as pauper briefs, mean a case that is conducted by a volunteer advocate at nominal or no cost at all. the judiciary government of kenya, ‘what is pro bono/pauper brief?’ (judiciary) <https://www.judiciary.go.ke/what/ > accessed 12 november 2020; kenya gazette, practice directions relating to pauper briefs scheme and pro bono services (notice no 370) 20 january 2016 <http://kenyalaw.org/kl/index.php?id=6006 > accessed 12 november 2020. 9 united nations office on drugs and crime, ‘united nations principles and guidelines on access to legal aid in criminal justice systems’ res a/67/458 (20 december 2012) <https://www.unodc.org/documents/justice-and-prisonreform/un_principles_and_guidlines_on_access_to_legal_aid.pdf> accessed 12 november 2020. https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahukewi9govnl_3sahujubuihxz3assqfjaaegqiarac&url=https%3a%2f%2fwww.unodc.org%2fdocuments%2fjustice-and-prison-reform%2flegalaid%2fglobal_study_on_legal_aid_-_final.pdf&usg=aovvaw3io7h-zeujyedxxdsvpwt1 https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahukewi9govnl_3sahujubuihxz3assqfjaaegqiarac&url=https%3a%2f%2fwww.unodc.org%2fdocuments%2fjustice-and-prison-reform%2flegalaid%2fglobal_study_on_legal_aid_-_final.pdf&usg=aovvaw3io7h-zeujyedxxdsvpwt1 https://www.judiciary.go.ke/what/ http://kenyalaw.org/kl/index.php?id=6006 https://www.unodc.org/documents/justice-and-prison-reform/un_principles_and_guidlines_on_access_to_legal_aid.pdf https://www.unodc.org/documents/justice-and-prison-reform/un_principles_and_guidlines_on_access_to_legal_aid.pdf practice report 121 criminal and civil cases and it encompasses legal advice, legal education and legal drafting.10 consequently, the government of kenya has promulgated the legal aid act, a sui generis legislation that recognizes the right to legal aid.11 under this act, the government undertakes to provide quality and effective legal aid services to all inhabitants of kenya who are unable to afford legal fees. this entails putting in place functions, processes and systems that ensure the quality requirement of legal aid services is met. this is to be primarily done by the establishment of the national legal aid service to provide legal aid services to needy, marginalized, and vulnerable persons.12 however, it is imperative to understand that this duty does not squarely fall on the state alone. the increasing demand for legal aid services in kenya outstrips the supply of state – funded legal services and thus there is an apparent need for nonstate actors’ support from entities like law firms, non-governmental organizations, faith – based institutions as well as law schools. 13 10 united nations office on drugs and crime, handbook on ensuring quality of legal aid services in criminal justice processes :practical guidance and promising practices (2019) <https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahu kewi9govnl_3sahujubuihxz3assqfjabegqiaxac&url=https%3a%2f%2fwww.unodc.org%2f documents%2fjustice-and-prisonreform%2fhb_ensuring_quality_legal_aid_services.pdf&usg=aovvaw0vvn7j-oeu_itafi4uq9t_ > accessed 12 november 2020. 11 the legal aid act, 2016. for a summary of the national legal and policy framework on legal aid in kenya, see table 3 of office of the attorney general and department of justice kenya, ‘ national action plan, legal aid 2017 – 2022 kenya’ 11 (< https://kecosce.org/national-action-plan-legal-aid-20172022-kenya/> . 12 legal aid act 2016, s 5. 13 office of the attorney general and department of justice kenya, ‘ national action plan, legal aid 2017 – 2022 kenya’ 22 (< https://kecosce.org/national-action-plan-legal-aid-2017-2022-kenya/ > accessed 14 december 2020. https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahukewi9govnl_3sahujubuihxz3assqfjabegqiaxac&url=https%3a%2f%2fwww.unodc.org%2fdocuments%2fjustice-and-prison-reform%2fhb_ensuring_quality_legal_aid_services.pdf&usg=aovvaw0vvn7j-oeu_itafi4uq9t_ https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahukewi9govnl_3sahujubuihxz3assqfjabegqiaxac&url=https%3a%2f%2fwww.unodc.org%2fdocuments%2fjustice-and-prison-reform%2fhb_ensuring_quality_legal_aid_services.pdf&usg=aovvaw0vvn7j-oeu_itafi4uq9t_ https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahukewi9govnl_3sahujubuihxz3assqfjabegqiaxac&url=https%3a%2f%2fwww.unodc.org%2fdocuments%2fjustice-and-prison-reform%2fhb_ensuring_quality_legal_aid_services.pdf&usg=aovvaw0vvn7j-oeu_itafi4uq9t_ https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahukewi9govnl_3sahujubuihxz3assqfjabegqiaxac&url=https%3a%2f%2fwww.unodc.org%2fdocuments%2fjustice-and-prison-reform%2fhb_ensuring_quality_legal_aid_services.pdf&usg=aovvaw0vvn7j-oeu_itafi4uq9t_ https://kecosce.org/national-action-plan-legal-aid-2017-2022-kenya/ https://kecosce.org/national-action-plan-legal-aid-2017-2022-kenya/ https://kecosce.org/national-action-plan-legal-aid-2017-2022-kenya/ practice report 122 in view of this, the act defines a legal aid provider to include ‘an advocate operating under the pro bono programme of the law society of kenya or any other civil society organization, a paralegal; a firm of advocates; a public benefit organization or faith based organization; a university or other institution operating legal aid clinics; or a government agency, accredited under the act to provide legal aid’.14 through this provision, law schools have the ambit to be providers of legal aid services by running legal aid clinics. these legal aid clinics provide a grand opportunity for law students to become agents of social change and transformation as they provide free and professional legal services to indigent persons. part ii law schools as legal aid providers like most african countries, the provision of legal aid services by kenyan law schools is closely associated with the use of clinical legal education. simply put, clinical legal education is learning by doing whereby the law students play varying degrees of the role of a lawyer representing clients with legal issues.15 this form of experiential learning ‘enables law students to play an active role in the learning process and to see how the law operates in real-life situations’.16 clinical legal education serves two 14 legal aid act 2016, s 2. 15 adrian evans et al, australian clinical legal education: designing and operating a best practice clinical program in an australian law school (2017 anu) 48 < https://press.anu.edu.au/publications/australianclinical-legal-education > accessed 17 december 2020 16 david mcquoid-mason and robin palmer, african law clinicians manual’ (2013) 1 <https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahukewivrk6i49hta hwtqkeahcohdreqfjabegqiahac&url=https%3a%2f%2fir.canterbury.ac.nz%2fbitstream%2fh https://press.anu.edu.au/publications/australian-clinical-legal-education https://press.anu.edu.au/publications/australian-clinical-legal-education https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahukewivrk6i49htahwtqkeahcohdreqfjabegqiahac&url=https%3a%2f%2fir.canterbury.ac.nz%2fbitstream%2fhandle%2f10092%2f15366%2fafrican-law-clinicians-manual-mcquoid-mason.pdf%3fsequence%3d2&usg=aovvaw2jkcdhq49ypai1ylx0yid9 https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahukewivrk6i49htahwtqkeahcohdreqfjabegqiahac&url=https%3a%2f%2fir.canterbury.ac.nz%2fbitstream%2fhandle%2f10092%2f15366%2fafrican-law-clinicians-manual-mcquoid-mason.pdf%3fsequence%3d2&usg=aovvaw2jkcdhq49ypai1ylx0yid9 practice report 123 purposes: one of student learning, the other of community service. it allows for law students to gain practical professional skills and values whilst delivering legal services in a social justice environment.17 the provision of legal aid services by law schools is thereby hinged on the social justice objective. as iya rightfully puts it, ‘law students can play a valuable role in assisting the majority poor and ignorant members of the society by satisfying their needs for access to justice through engaging in a variety of community service programmes, while at the same time acquiring legal or professional skills and values’.18 as a pedagogical approach, clinical legal education boosts of a variety of models of learning that are generally called legal clinics.19 these legal clinics can be defined as offices staffed by law students under the supervision of qualified lawyers, providing free legal services to indigent members of the community. the term ‘legal clinic’ can broadly extend to clinics that operate to deal with clients or simulated legal practice that does not deal with clients.20 thus, legal clinics can range from in-house clinics, outreach clinics, externships, street law clinics, simulated clinics to clinical andle%2f10092%2f15366%2fafrican-law-clinicians-manual-mcquoidmason.pdf%3fsequence%3d2&usg=aovvaw2jkcdhq49ypai1ylx0yid9> accessed 14 december 2020. 17 david mcquoid-mason and robin palmer, african law clinicians manual’ (2013) 1 <https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahukewivrk6i49hta hwtqkeahcohdreqfjabegqiahac&url=https%3a%2f%2fir.canterbury.ac.nz%2fbitstream%2fh andle%2f10092%2f15366%2fafrican-law-clinicians-manual-mcquoid mason.pdf%3fsequence%3d2&usg=aovvaw2jkcdhq49ypai1ylx0yid9> accessed 14 december 2020. 18 phillip f iya, ‘fighting africa’s poverty and ignorance through clinical legal education: shared experiences with new initiatives for the 21st century’ (2000) i jcle 17 < https://doi.org/10.19164/ijcle.v1i0.128> accessed 16 december 2020. 19 the terms ‘legal clinic’ and ‘law clinic’ are often used interchangeably. 20 david mcquoid-mason, ‘teaching social justice to law students through community service – the south african experience’ < http://clarkcunningham.org/legaled/southafricamason1.pdf. > accessed 12 december 2020. https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahukewivrk6i49htahwtqkeahcohdreqfjabegqiahac&url=https%3a%2f%2fir.canterbury.ac.nz%2fbitstream%2fhandle%2f10092%2f15366%2fafrican-law-clinicians-manual-mcquoid-mason.pdf%3fsequence%3d2&usg=aovvaw2jkcdhq49ypai1ylx0yid9 https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahukewivrk6i49htahwtqkeahcohdreqfjabegqiahac&url=https%3a%2f%2fir.canterbury.ac.nz%2fbitstream%2fhandle%2f10092%2f15366%2fafrican-law-clinicians-manual-mcquoid-mason.pdf%3fsequence%3d2&usg=aovvaw2jkcdhq49ypai1ylx0yid9 https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahukewivrk6i49htahwtqkeahcohdreqfjabegqiahac&url=https%3a%2f%2fir.canterbury.ac.nz%2fbitstream%2fhandle%2f10092%2f15366%2fafrican-law-clinicians-manual-mcquoid%20mason.pdf%3fsequence%3d2&usg=aovvaw2jkcdhq49ypai1ylx0yid9 https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahukewivrk6i49htahwtqkeahcohdreqfjabegqiahac&url=https%3a%2f%2fir.canterbury.ac.nz%2fbitstream%2fhandle%2f10092%2f15366%2fafrican-law-clinicians-manual-mcquoid%20mason.pdf%3fsequence%3d2&usg=aovvaw2jkcdhq49ypai1ylx0yid9 https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahukewivrk6i49htahwtqkeahcohdreqfjabegqiahac&url=https%3a%2f%2fir.canterbury.ac.nz%2fbitstream%2fhandle%2f10092%2f15366%2fafrican-law-clinicians-manual-mcquoid%20mason.pdf%3fsequence%3d2&usg=aovvaw2jkcdhq49ypai1ylx0yid9 https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahukewivrk6i49htahwtqkeahcohdreqfjabegqiahac&url=https%3a%2f%2fir.canterbury.ac.nz%2fbitstream%2fhandle%2f10092%2f15366%2fafrican-law-clinicians-manual-mcquoid%20mason.pdf%3fsequence%3d2&usg=aovvaw2jkcdhq49ypai1ylx0yid9 https://doi.org/10.19164/ijcle.v1i0.128 http://clarkcunningham.org/legaled/southafricamason1.pdf practice report 124 components in doctrinal courses.21 in this article the focus is on legal aid clinics, which we define as live – client clinics whereby law students offer pro-bono legal aid services under the supervision of qualified academic staff. legal aid clinics are invaluable as they offer immense benefits. grimes best summarizes these benefits to be that ‘clients receive a free, professional and customized service; students learn experientially; law schools serve a wider community mission; and the legal profession stands to inherit lawyers who are beginning to acquire and appreciate the need for legal practice awareness and to develop pragmatic, problem-solving skills’.22 thus, these clinics provide a win – win situation for all. the following part looks closely at the status of law school – based legal aid clinics in south africa for a comparative basis. south africa’s experience offers an exemplar model for the establishment of these clinics as it has a comparable legal, socio – economic context to kenya. 21richard grimes, 'accessing justice: the role of law school legal clinics in conflict-affected societies' (2014) 1 ajle 73 < https://doi.org/10.1177/2322005814530327> accessed 17 december 2020.; adrian evans et al australian clinical legal education: designing and operating a best practice clinical program in an australian law school (2017) 48 < https://press.anu.edu.au/publications/australian-clinicallegal-education> accessed 17 december 2020; david mcquoid-mason and robin palmer, african law clinicians manual’ (2013) ch 4 <https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahukewivrk6i49hta hwtqkeahcohdreqfjabegqiahac&url=https%3a%2f%2fir.canterbury.ac.nz%2fbitstream%2fh andle%2f10092%2f15366%2fafrican-law-clinicians-manual-mcquoidmason.pdf%3fsequence%3d2&usg=aovvaw2jkcdhq49ypai1ylx0yid9> accessed 14 december 2020. 22 richard grimes, 'accessing justice: the role of law school legal clinics in conflict-affected societies' (2014) 1 ajle 86 https://doi.org/10.1177/2322005814530327 accessed 18 december 2020. https://doi.org/10.1177/2322005814530327 https://press.anu.edu.au/publications/australian-clinical-legal-education https://press.anu.edu.au/publications/australian-clinical-legal-education https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahukewivrk6i49htahwtqkeahcohdreqfjabegqiahac&url=https%3a%2f%2fir.canterbury.ac.nz%2fbitstream%2fhandle%2f10092%2f15366%2fafrican-law-clinicians-manual-mcquoid-mason.pdf%3fsequence%3d2&usg=aovvaw2jkcdhq49ypai1ylx0yid9 https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahukewivrk6i49htahwtqkeahcohdreqfjabegqiahac&url=https%3a%2f%2fir.canterbury.ac.nz%2fbitstream%2fhandle%2f10092%2f15366%2fafrican-law-clinicians-manual-mcquoid-mason.pdf%3fsequence%3d2&usg=aovvaw2jkcdhq49ypai1ylx0yid9 https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahukewivrk6i49htahwtqkeahcohdreqfjabegqiahac&url=https%3a%2f%2fir.canterbury.ac.nz%2fbitstream%2fhandle%2f10092%2f15366%2fafrican-law-clinicians-manual-mcquoid-mason.pdf%3fsequence%3d2&usg=aovvaw2jkcdhq49ypai1ylx0yid9 https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahukewivrk6i49htahwtqkeahcohdreqfjabegqiahac&url=https%3a%2f%2fir.canterbury.ac.nz%2fbitstream%2fhandle%2f10092%2f15366%2fafrican-law-clinicians-manual-mcquoid-mason.pdf%3fsequence%3d2&usg=aovvaw2jkcdhq49ypai1ylx0yid9 https://doi.org/10.1177/2322005814530327 practice report 125 the clinical movement in africa is still growing south africa leading with highly developed clinical programmes based in their law schools. the emergence of legal aid programmes in south african law schools began in the 1970s with the aim of providing access to legal services to the poor and vulnerable. 23 at that time, law schools bridged the gap created between the limited state-funded legal aid system and the increasing social and political needs of the society.24 the typical legal aid clinics that existed were low-budget student run initiatives that were supported by some academics and persons in private practice.25 the type of legal matters carried out in the clinics were mostly civil in nature and consisted mainly of family, employment and housing matters.26 today, all law schools in south africa have established legal aid clinics.27 the spur in the numbers of legal aid clinics can be attributed to key motivating factors such as funding received by universities from the legal practitioners fidelity fund since the 1990’s (formerly the attorneys fidelity fund) and the establishment of the south african university law clinics association (formerly association of university legal 23 ma (riette) du plessis, ‘forty-five years of clinical legal education in south africa’ (2019) 25 fundamina 17 <http://ref.scielo.org/6cwsxx> accessed 3 december 2020;. dj mcquiod – mason, ‘access to justice and the role of law schools in developing countries: some lessons from south africa – pre 1970 until 1990: part 1 (2004) 29(3) jjs 33< https://journals.ufs.ac.za/index.php/jjs/article/download/2899/2812> accessed 18 december 2020. 24 ma (riette) du plessis, ‘forty-five years of clinical legal education in south africa’ (2019) 25 fundamina 17 <http://ref.scielo.org/6cwsxx> accessed 3 december 2020. 25 willem de klerk, 'university law clinics in south africa' (2005) 122 salj 930. 26 dj mcquiod – mason, ‘access to justice and the role of law schools in developing countries: some lessons from south africa – pre 1970 until 1990: part 1 (2004) 29(3) jjs 35 < https://journals.ufs.ac.za/index.php/jjs/article/download/2899/2812> accessed 20 december 2020. 27 dj mcquiod – mason, ‘access to justice and the role of law schools in developing countries: some lessons from south africa: part 2: 1990 until the present (2005) 30(1) jjs 7 < https://journals.ufs.ac.za/index.php/jjs/article/view/2906> accessed 20 december 2020. http://ref.scielo.org/6cwsxx https://journals.ufs.ac.za/index.php/jjs/article/download/2899/2812 http://ref.scielo.org/6cwsxx https://journals.ufs.ac.za/index.php/jjs/article/download/2899/2812 https://journals.ufs.ac.za/index.php/jjs/article/view/2906 practice report 126 aid institutions).28 notably, legal aid clinics in south african law schools get significant external funding. the legal practitioners fidelity fund (lpff) grants bursaries to legal aid clinics at south african universities to facilitate quality legal education.29 these monies enable the effective operationalization of the clinics and the hiring of clinical staff such as a director of the clinic, attorneys and legal practitioners.30 in addition, the formation of the south african university law clinics association (saulca) also promotes the growth of the legal clinics in south african law schools. saulca is the umbrella body that represents all law schoolbased legal aid clinics in south africa.31 it seeks to promote the provision of free legal services to indigent persons and the practical legal education of law students, to lobby and network with relevant stakeholders and to ensure the sustainability of clinics amongst other objectives.32 through saulca, a standard curriculum and teaching manual, a guide to clinical assessment methods, a manual on clinical teaching methodology and a student textbook on clinical education have been developed for a structured approach to clinical legal education.33 28ma (riette) du plessis, ‘forty-five years of clinical legal education in south africa’ (2019) 25 fundamina 18 <http://ref.scielo.org/6cwsxx> accessed 3 december 2020.; willem de klerk, 'university law clinics in south africa' (2005) 122 salj 930. 29 legal practitioners fidelity fund south africa, ‘bursaries’ (legal practitioners fidelity fund, 2020) < http://www.fidfund.co.za/bursaries/> accessed 14 december 2020. 30 david j mcquoid-mason, ‘the delivery of civil legal aid services in south africa’ (2000) 24 filj s111, s129 < http://clarkcunningham.org/legaled/southafrica-mm-fordham.pdf. > accessed 14 december 2020. 31south african university law clinics association, ‘home’ <https://www.saulca.co.za/ accessed on 1 december 2020. 32 south african university law clinics association, ‘home’ <https://www.saulca.co.za/ accessed on 1 december 2020. 33 willem de klerk, 'university law clinics in south africa' (2005) 122 salj 931. http://ref.scielo.org/6cwsxx http://www.fidfund.co.za/bursaries/ http://clarkcunningham.org/legaled/southafrica-mm-fordham.pdf https://www.saulca.co.za/ https://www.saulca.co.za/ practice report 127 legal aid clinics are now a core part of the law degree as they have been integrated into the mainstream law degree curriculum either as mandatory or elective courses.34 the legal aid clinics constitute the clinical experience of a broader clinical course or program.35 student participation in this clinical experience is based on clinic time or shifts, taking turns to receive walk in clients, assess cases to decide which cases to accept and providing whatever service the client needs, all under supervision.36 this hands – on learning makes the most valuable experience as it has proved to be ‘effective in developing respect for clients, increased student confidence and the educational outcome of rapid, but sustained and comprehensive student learning’.37 though law school – based legal aid clinics in south africa have progressed tremendously, they still face some challenges such as meeting the clients and law students’ needs, difficulties in assessing clinical work, imbalances in student learning amongst others.38 despite these challenges, these clinics continue to greatly impact how the south african citizens access justice. 34 willem de klerk, 'university law clinics in south africa' (2005) 122 salj 932. 35 the clinical course or program is ideally structured to include a clinical experience, a classroom component and a tutorial session. see m a du plessis, clinical legal education: law clinic curriculum design and assessment tools (2017 juta sa) 26. 36 donald nicolson, our roots began in (south) africa: modelling law clinics to maximise social justice ends’ (2016) 23.3 ijcle < https://www.northumbriajournals.co.uk/index.php/ijcle/article/view/532/922 > accessed 12 december 2020; ma du plessis, ‘clinical legal education models: recommended assessment regimes’ (2015) 18 < https://www.ajol.info/index.php/pelj/article/view/131490/121088 > accessed 13 december 2020. 37 ma du plessis, ‘clinical legal education: identifying required pedagogical components’ (2015) 40(2) jjs 69 < https://journals.ufs.ac.za/index.php/jjs/article/view/3260> accessed 18 december 2020. 38 sh mahomed, ‘united in our challenges: should the model used in clinical legal education be reviewed? (2008) jjs 61< file:///c:/users/user/appdata/local/temp/juridic_v33_specialissue_a4.pdf> accessed 17 december 2020. https://www.northumbriajournals.co.uk/index.php/ijcle/article/view/532/922 https://www.ajol.info/index.php/pelj/article/view/131490/121088 https://journals.ufs.ac.za/index.php/jjs/article/view/3260 practice report 128 in contrast, kenya’s clinical movement is under – developed. this clinical movement can be considered to be in the ‘first wave of modern clinical legal education’ that was characterized by the sprouting of voluntary student programs for practicing lawyering skills and advancing a social justice mission. 39 while evaluating the development of clinical legal education in kenyan law schools, osiemo observed that, ‘cle [clinical legal education] is applied in some kenyan universities to varying extents, but not in a systematic or sustainable manner as happens in many other universities in other countries around the world. although efforts have been made over the years to establish law clinics in a number of law faculties, most remain at levels that do not meet the characteristic features of cle’.40 thus, this status of clinical programs in kenyan law schools is mirrored in the embryonic state of law school – based legal aid clinics in kenya. most of the legal aid clinics that exist in kenyan law schools run as extra – curricula activities separate from the mainstream law curriculum. for instance, in the university of nairobi, legal aid clinics are organized by the students association for legal aid and research (salar).41 salar is a student club that works in conjunction 39margaret martin barry; jon c dubin; peter a joy, ‘clinical education for this millennium: the third wave’ (2000)7(1) clr 6 < file:///c:/users/user/appdata/local/temp/ssrn-id2548228.pdf> accessed 17 december 2020. 40 lynette osiemo and anton kok, ‘promoting a public service ethic in the legal profession in kenya: the imperative role of clinical legal education (2020) 64 (2) jal 191; for a detailed description of the clinical programs in kenyan law schools, see anne kotonya, ‘defining the role of the university law clinician: perspectives from kenya clinician: (2020) the law teacher, doi:10.1080/03069400.2020.1840054. 41 uon salar, ‘the students’ association for legal aid and research’ (salar) <https://www.uonsalar.org/activities.html >accessed 17 november 2020. https://www.uonsalar.org/activities.html practice report 129 with non-government organisations to offer legal assistance that includes employment and labour disputes, human rights, matrimonial disputes, land disputes and child-related matters.42 strathmore university also runs the strathmore law clinic which is a student-led institution that seeks to further access to justice by running legal literacy programs in criminal justice entrepreneurship and human rights.43 students at the kabarak university school of law offer legal aid advice through the kabarak university law students association (kulsa) to inmates in prisons and also to the surrounding kabarak community.44 the studentled public interest and awareness programme run by the law students at kenyatta university school of law offers legal awareness and assistance services in different parts of the country.45 there also exists a walk – in legal aid clinic that offers generalist legal services. despite the clinic being extra-curricular, it is supervised by a law lecturer.46 42 ‘salar – legal aid’ available at https://www.uonsalar.org/legal-aid.html, accessed on 12 march 2018. see also yohana ouma and esther chege, law clinics and access to justice in kenya: bridging the legal divide’ <https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahu kewi7u6lrijhtahx1wxuihyhrbmiqfjaaegqiarac&url=https%3a%2f%2fpdfs.semanticschola r.org%2fcb0f%2f975d4b75613c92a0311599981fdbcdceb32d.pdf&usg=aovvaw239a6-paook61qn0vig61 > accessed 17 november 2020. 43 strathmore university law clinic, annual report 2019, strathmore university law school 2019 < https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahuk ewjy6sa0tyxuahufxhuihuf2dwoqfjaaegqiarac&url=https%3a%2f%2fwww.strathmore.edu %2fwp-content%2fuploads%2f2020%2f09%2fsu-2019-annualreport.pdf&usg=aovvaw2nurgvutdp25udabuvrngt> accessed 16 november 2020; emma senge wabuke, arnold nciko and abdullahi abdirahman, promoting access to justice in kenya: making the case for law clinics (the platform october 11 2018) < https://theplatform.co.ke/promoting-access-tojustice-in-kenya-making-the-case-for-law-clinics/ > accessed 16 november 2020 44 ‘kulsa programmes’ available at <http://law.kabarak.ac.ke/kulsaprogrammes.php> accessed 12 march 2018. 45 kenyatta university, ‘public interest and awareness programme’ (kenyatta university,17 april 2015) <http://law.ku.ac.ke/index.php/97-school-news/169-legal-aid-awareness> accessed 17 november 2020. 46 anne kotonya, ‘defining the role of the university law clinician: perspectives from kenya clinician: (2020) the law teacher 8 doi:10.1080/03069400.2020.1840054. https://www.uonsalar.org/legal-aid.html https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahukewi7u6lrijhtahx1wxuihyhrbmiqfjaaegqiarac&url=https%3a%2f%2fpdfs.semanticscholar.org%2fcb0f%2f975d4b75613c92a0311599981fdbcdceb32d.pdf&usg=aovvaw239a6-p-aook61qn0vig61 https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahukewi7u6lrijhtahx1wxuihyhrbmiqfjaaegqiarac&url=https%3a%2f%2fpdfs.semanticscholar.org%2fcb0f%2f975d4b75613c92a0311599981fdbcdceb32d.pdf&usg=aovvaw239a6-p-aook61qn0vig61 https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahukewi7u6lrijhtahx1wxuihyhrbmiqfjaaegqiarac&url=https%3a%2f%2fpdfs.semanticscholar.org%2fcb0f%2f975d4b75613c92a0311599981fdbcdceb32d.pdf&usg=aovvaw239a6-p-aook61qn0vig61 https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahukewi7u6lrijhtahx1wxuihyhrbmiqfjaaegqiarac&url=https%3a%2f%2fpdfs.semanticscholar.org%2fcb0f%2f975d4b75613c92a0311599981fdbcdceb32d.pdf&usg=aovvaw239a6-p-aook61qn0vig61 https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahukewjy6sa0tyxuahufxhuihuf2dwoqfjaaegqiarac&url=https%3a%2f%2fwww.strathmore.edu%2fwp-content%2fuploads%2f2020%2f09%2fsu-2019-annual-report.pdf&usg=aovvaw2nurgvutdp25udabuvrngt https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahukewjy6sa0tyxuahufxhuihuf2dwoqfjaaegqiarac&url=https%3a%2f%2fwww.strathmore.edu%2fwp-content%2fuploads%2f2020%2f09%2fsu-2019-annual-report.pdf&usg=aovvaw2nurgvutdp25udabuvrngt https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahukewjy6sa0tyxuahufxhuihuf2dwoqfjaaegqiarac&url=https%3a%2f%2fwww.strathmore.edu%2fwp-content%2fuploads%2f2020%2f09%2fsu-2019-annual-report.pdf&usg=aovvaw2nurgvutdp25udabuvrngt https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahukewjy6sa0tyxuahufxhuihuf2dwoqfjaaegqiarac&url=https%3a%2f%2fwww.strathmore.edu%2fwp-content%2fuploads%2f2020%2f09%2fsu-2019-annual-report.pdf&usg=aovvaw2nurgvutdp25udabuvrngt https://theplatform.co.ke/promoting-access-to-justice-in-kenya-making-the-case-for-law-clinics/ https://theplatform.co.ke/promoting-access-to-justice-in-kenya-making-the-case-for-law-clinics/ http://law.kabarak.ac.ke/kulsaprogrammes.php http://law.ku.ac.ke/index.php/97-school-news/169-legal-aid-awareness practice report 130 the emerging core features of legal aid clinics in kenyan law schools are that they are mostly student –led, extra – curricular clinics that offer legal assistance through advice – only clinics and street law programmes. because these student led clinics are not incorporated in the mainstream law degree curriculum, they tend to operate in a less formal manner.47 they lack the structure and use of interactive learning methods that more established clinical programs have. it is therefore argued that the failure to integrate legal aid clinics into the wider law degree curriculum does affect the effectiveness and sustainability of the clinics. in conclusion, kenyan law schools can gain from emulating the best practices of south african law schools. seemingly, the quality, productivity and sustainability of legal aid clinics and clinical programs at large can be improved if a holistic approach is followed. this approach could include adopting strategies like: the curricular integration of legal aid clinics, the development of training materials for clinical legal education, networking and collaboration amongst law schools and also with other legal aid providers and broadening the spectrum of funding to include both internal and external funding sources. 47 law schools in kenya are not obligated by law to incorporate clinical programs into their law degree curriculum. practice report 131 part iii the establishment of the mount kenya university school of law legal aid clinic the authors were members of the legal aid committee at the mount kenya university school of law (mkusol) that offered free legal services through legal aid clinics.48 legal aid clinics were incorporated in the undergraduate law degree curriculum in a mandatory course dubbed ‘public legal clinics’. the course engaged fourth year law students and it was akin to a capstone course. it sought to inculcate a variety of skills necessary in the practice of law namely interviewing skills, legal writing skills, drafting of legal documents, legal analysis reasoning, ethical and professional rules and trial advocacy. the same class of students would be required to participate in a legal aid clinic set up by the law school’s legal aid committee so as to hone those practical skills. the design of the legal aid clinic was premised on the advice only model were legal advice was rendered to the general public. the location of these clinics deferred from areas with a low – income populace like kibera, mukurwe kwa njenga, kawangware to prisons such as langata women’s prison and the nairobi remand and allocation maximum prison.49 these legal aid clinics were also generalist clinics offering legal 48 ms. mikinyango and ms. nguru were part of a four – member team that comprised the legal aid committee during the period between 2015 and 2018 at mount kenya university school of law. ms. nguru doubled up as the chair of the committee as well as the course instructor for the public legal clinics course. 49 kibera and mukuru kwa njenga are both slums situated in nairobi where residents face financial challenges accessing essential services as reported by amnesty international, ‘kenya the unseen majority: nairobi’s two million slum dwellers (2009) < https://www.refworld.org/pdfid/4a3660e82.pdf > accessed 7 november 2020 https://www.refworld.org/pdfid/4a3660e82.pdf practice report 132 advice on a wide range of legal issues. the nature of legal work highly depended on the target community’s needs. for instance, the remandees in prisons needed assistance in understanding the court procedure in criminal cases, while the members of the community mainly sought advice on family and property matters. others sought a better understanding of various human rights. the mandate of organizing and coordinating the legal aid clinics lay on the legal aid committee working closely with the law school’s administrative staff. the legal aid committee was made up of several lecturers, who are advocates of the high court of kenya, and were assisted by administrative staff from the law school. the committee members played several clinician’s roles that included being liaisons to the law school’s and university management, creating strategic partnerships with government officials and local partners, supervision of the clinic, financial management of the clinic resources and the overall coordination of the clinics.50 the legal aid clinic were usually scheduled for the end of semester once students had completed the course content. the committee had the task to organize a clinic every semester and this meant that at least three legal aid initiatives would be organized in a year.51 the location of the clinics would be identified by the legal aid committee together with the attending class of students. the selected area would have to be 50 for a description of the various roles of a kenyan clinician see anne kotonya, ‘defining the role of the university law clinician: perspectives from kenya clinician: (2020) the law teacher 11 doi:10.1080/03069400.2020.1840054. 51 there are three semesters in the academic year in the mount kenya university law school of law. practice report 133 populated by citizens that may not be able to afford legal fees in nairobi and its environs. once the area has been identified, the next step would be to engage any relevant administrative authority in the area. these could be government agencies such as county government officials, chiefs, the commissioner of prisons in kenya, or non-governmental organizations and faith-based institutions such as churches. this was a necessary step as the committee’s sought partnership and sponsorship in a bid to lessen the university’s financial burden. for instance, one legal aid clinic was hosted by a church that offered its church hall and seats. building relations with community leaders was also crucial as it allowed for buy – in from the community and helped negate the negative public perceptions. one example is when the legal aid committee was allowed access to the community whatsapp groups to raise awareness of the upcoming initiatives. the budgetary costs were borne primarily by the university. the committee would need financial support for all these activities and it would submit a budget detailing the operational and administrative costs for running each legal aid clinic. the operational and administrative costs entailed utilities such as telephone call costs, transport, stationery, promotional materials, field visits, hired tents and furniture, meals and refreshments for students. at times, the budget would be subsidized, and this would affect the outreach and quality of legal aid delivered. also of importance was attaining the necessary licenses to host these clinics as well as creating public awareness to the targeted community. on one occasion, the committee undertook to practice report 134 do a roadshow in thika town to create public awareness which required licenses from the county government and even a license from the music copyright society of kenya permitting the playing of music during the roadshow. the structure of the legal aid clinic was simple. on the date of the clinic, there would be a briefing session with the law students and the members of the legal aid committee on site. the purpose was to update them on their student responsibilities during the clinic, the potential clients and legal issues they would handle and remind them of their ethical duty of professionalism and confidentiality. the law students would thereafter be grouped into small groups of three to four to counsel and advise walk in clients under the supervision of the members of the legal aid committee. there would be a group of students tasked to welcome clients, ushering them to the reception so as to register and ensure they are appointed students to advise them accordingly. during the sessions, the students would jot down key facts in attendance notes and offer advice based on their legal knowledge.52 when needed, the members of the committee would step in to assist the group of students. clients with legal issues that required legal representation were referred to the relevant legal aid providers. after the legal clinics were completed, the legal aid committee would hold debriefing sessions with the attending class of students to share their experiences, give feedback and reflect 52 student participation in the clinics and the marks from the assessment of the attendance notes would contribute towards the grade of the law students. practice report 135 upon their learning. the information received from these debriefing sessions would work as the benchmark of the effectiveness of the initiatives. the above discourse reveals that kenyan law schools are well on their way to becoming formidable partners in legal aid delivery. more specifically, this initial step to establish mkusol legal aid clinics gives new impetus to reinvent clinics that pass the quality indicators of legal aid clinic activities.53 a reflection on the challenges faced and the lessons learnt by the mkusol can give insight on what to look out for when establishing viable law school – based legal aid clinics. these are discussed in the next two parts. part iv challenges faced by the law school – based legal aid clinic this part discusses the challenges faced in the organization and delivery of legal aid services at mount kenya university school of law (mkusol). these have been broadly classified into internal and external challenges. whereas the internal challenges were faced by the law school inwardly, the external challenges were faced while aiding the general public. 53 for a discussion on quality indicators of activities of legal clinics, see andrii halai, ‘quality indicators of activities of legal clinics: ukrainian experience (2016) 3(2) ajle 209 < https://doi.org/10.1177/2322005816640341> accessed 20 december 2020. https://doi.org/10.1177/2322005816640341 practice report 136 4.1 internal challenges the following section outlines the internal challenges faced by the law school and its students. 4.1.1 constrained funding as already established, a university seeking to provide legal aid contributes significantly to the quality of legal education for students and the promotion of equality of justice for the community. as such the mount kenya university, through its law school, ran the legal aid clinics as part of the undergraduate law degree. the university was therefore the primary financial source for the activities related to these clinics. the expenditure on operational and administrative needs did rack up quite a bill. inevitably, the amount of budgetary funds allocated for the clinics started to decrease, making it harder for the committee to organize legal aid initiatives every semester. the constrained budget also meant that the clinic could not afford to employ administrative staff to assist in following up the clients served. many times, clients served at the legal aid clinic would express the wish to reach out in case of follow up questions or need for advice but the legal aid committee did not have an operating office open to the public. this curtailed extensive legal aid delivery and the ability to evaluate the efficiency of the clinics. the financial burden on the university consequently led to lack of sustainability of these clinics as there were no funds to keep running them. practice report 137 4.1.2 inadequate law student supervision another challenge faced in legal aid clinics was the low student to faculty members’ ratio supervising and participating in the clinics. the low turnout of faculty members would limit the quality of supervision granted to the law students as they offered legal advice. with constrained funding, the law school through the legal aid committee was unable to cover the operational costs of having extra faculty members. additionally, the scheduling of these clinics would fall on saturdays when the public would generally be available – this timing would conflict with the professional and personal interests of faculty members. as a result, few faculty members were motivated to volunteer their time when called upon. 4.1.3 law students restriction to providing legal advice following the definition of legal aid by the act, legal aid includes several services such as legal advice, legal representation, drafting of relevant documents and creating legal awareness among other services.54 because the legal aid clinics at the university primarily relies on law students, the services offered are limited to giving legal advice in the form of opinions and provision of legal information. the law students are barred by law from legal representation as such they can only run advice – only legal clinics.55 this limited the extent of legal assistance granted to those unable to afford 54legal aid act 2016, s 2 55 advocates act cap 16 laws of kenya, s 9, 31. practice report 138 legal advice and legal representation. anyone in need of such services would be referred to legal aid providers offering such legal aid services in kenya, without guarantee of help. 4.2 external challenges other than the internal challenges, external challenges were faced by the law school as it engaged the general public and these include the following. 4.2.1 lack of buy-in and mistrust from the legal aided persons a major challenge arose relating to the target beneficiaries of the clinics gaining public confidence and trust in the initiatives. the negative public perception of lawyers coupled with their twisted notion of free services being offered perplexed the community, many questioning the motive behind providing an expensive, elusive service for free. this mistrust arose partly from the public’s growing perception that lawyers are individualistic persons who care less for the society, limited public awareness about legal aid and the social bias against free things. additionally, the legal aided persons had lost hope in attaining justice the judicial way and preferred to explore other unconventional providers of justice. practice report 139 4.2.2 illiteracy and language barrier another challenge that arose when serving clients was the inability to communicate because of illiteracy and inability to communicate in either in english or swahili. based on the financial constraints, it was impracticable to have proficient interpreters and depending on students or the committee members to translate was not always reliable. as a result, some clients would shy away. 4.2.3 lack of strategic partnerships with other legal aid providers as mentioned earlier, the legal aid committee would partner with community leaders, government agencies and other key institutions to ensure buy-in from the community. however, the lack of a coordinated network of legal aid providers hindered the escalation and final determination of some clients’ legal issues. such a network would also assist in identifying the nearest legal aid provider to the client in need and inadvertently, save on costs and result in effective case management. in some instances, once a client was advised on their rights, the legal issues and the next course of action, they would still need aid in drafting court documents, filing and representation. the experience of the mkusol legal aid clinic depicts the reality facing law school – based legal aid clinics in developing countries. in the words of mcquoid – mason, practice report 140 …law schools in developing countries can make a significant contribution to access to justice in both repressive and democratic political environments. they can make a similar contribution by educating ordinary citizens about their legal rights. what sets developing countries apart from developed countries is that law schools in the former have a special duty to serve their communities. this is because they often operate as a privileged island of resources in a sea of scarcity, particularly when it comes to providing access to justice for the poor.56 arguably, the role of law schools in the provisions of legal aid can be enhanced if the above internal and external challenges are systematically addressed with obvious benefits amounting to the law students, law schools and communities at large. part v – lessons learnt from practice this part highlights the lessons learnt from implementing legal aid clinics and offers strategies that can be employed to mitigate the mentioned challenges. for the successful running of legal aid clinics, there is need for extensive financial and human resources. the law school solely depended on the university to fund its initiatives thus continuity and sustainability of the clinics was pegged on the university’s ability to provide. funding constraints would have a domino effect 56 dj mcquiod – mason, ‘access to justice and the role of law schools in developing countries: some lessons from south africa: part 2: 1990 until the present (2005) 30(1) jjs 14 <https://journals.ufs.ac.za/index.php/jjs/article/view/2906> accessed 20 december 2020. https://journals.ufs.ac.za/index.php/jjs/article/view/2906 practice report 141 resulting in other challenges such as loose supervision of law student by faculty members and the downsizing of operational costs. law schools need to explore alternative models of funding. avenues like partnering with like-minded local and international institutions and exploring public-private partnerships through their universities can be targeted for fundraising. legally aided persons came to us to find justice, however our power to help was curtailed to giving legal advice on legal issues. it became blatantly clear that there was need to have coordinated efforts amongst legal aid providers that offered essential legal services like court representation in criminal and civil matters. a referral system formalized between law schools and with other legal aid institutions would offer a start – tofinish solution resulting in better legal aid delivery. gleaning in from south africa’s best practices, the formation of an association of law schools with school – based legal aid clinics could significantly change the effectiveness of these clinics and accelerate the development of the clinical movement in kenya. the association would consolidate the efforts of all law schools, explore fundraising opportunities, carry out evidence – based research, offer capacity building to clinicians and create a platform for lobbying and networking. the association could also develop student and teacher manuals for structured training. lastly, the practice report 142 association could promote the financial sustainability of legal aid clinics by targeting the national legal aid fund.57 finally, integrating of legal aid clinics into the law degree curriculum has the potential of anchoring these social justice efforts. by designing the goals, interactive learning methods and assessment criteria of a legal aid clinic could ensure that law students inculcate the necessary legal skills and values for professional competency. a worthwhile proposal is the amendment of the legal education [accreditation and quality assurance] regulations to incorporate clinical courses (including legal aid clinics) as one of the core courses in all law degree curricula in kenya.58 part vi. conclusion undoubtedly, law schools play an instrumental role in the provision of legal aid services to the kenyan citizenry. law schools can achieve high impact with wellestablished and institutionalized legal aid clinics, adequate funding, and renewed motivation of faculty members coupled with the necessary support from state and nonstate actors. for law schools, the sky is the limit – the sky here being the provision of sustainable and quality legal aid. 57 section 29 of the legal aid act establishes the legal aid fund that is to be managed by the national legal aid service. 58 legal education [accreditation and quality assurance] regulations legal notice number 15 of 2016. through these regulations, the council of legal education exercises its accreditation and quality assurance mandate. this regulation and others relating to legal education in kenya are administered by the council of legal education established by s 4 of the legal education act, 2012. practice report 143 bibliography kenyan legislation advocates act chapter 16 laws of kenya (revised 2017) constitution of kenya, 2010 legal aid act, no. 6 of 2016 legal education [accreditation and quality assurance] regulations legal notice number 15 of 2016 legal education act, 2012 south african legislation legal practice act, 2014 cases john mbugua and another v the attorney general and 16 others (2013) eklr secondary sources (2000)7(1) clr 6 < file:///c:/users/user/appdata/local/temp/ssrn-id2548228.pdf > accessed 17 december 2020 practice report 144 amnesty international, ‘kenya the unseen majority: nairobi’s two million slum dwellers (2009) < https://www.refworld.org/pdfid/4a3660e82.pdf > accessed 7 november 2020 barry, mm; dubin, jc and joy, pa, ‘clinical education for this millennium: the third wave’ brooke, h, the history of legal aid 1945 -2010’ (2007) bach commission on access to justice –appendix 6 file:///c:/users/user/appdata/local/temp/bach-commissionappendix-6-f-1.pdf accessed 11 november 2020. du plessis ma, clinical legal education: law clinic curriculum design and assessment tools (2017 juta sa) 26 evans, a et al, australian clinical legal education: designing and operating a best practice clinical program in an australian law school (2017) 48 < https://press.anu.edu.au/publications/australian-clinical-legal-education> accessed 17 december 2020 grimes, r, 'accessing justice: the role of law school legal clinics in conflictaffected societies' (2014) 1 asian j legal educ 73 < https://doi.org/10.1177/2322005814530327 > accessed 17 december 2020 halai, a, ‘quality indicators of activities of legal clinics: ukrainian experience (2016) 3(2) ajle 209 < https://doi.org/10.1177/2322005816640341 > accessed 20 december 2020 https://www.refworld.org/pdfid/4a3660e82.pdf https://doi.org/10.1177/2322005814530327 https://doi.org/10.1177/2322005816640341 practice report 145 iya, pf, ‘fighting africa’s poverty and ignorance through clinical legal education: shared experiences with new initiatives for the 21st century’ (2000) i jcle 17 < https://doi.org/10.19164/ijcle.v1i0.128> accessed 16 december 2020 kenya gazette, practice directions relating to pauper briefs scheme and pro bono services (notice no 370) 20 january 2016 <http://kenyalaw.org/kl/index.php?id=6006 > accessed 12 november 2020 kenyatta university, ‘public interest and awareness programme’ (kenyatta university,17 april 2015) <http://law.ku.ac.ke/index.php/97-school-news/169-legalaid-awareness> accessed 17 november 2020. kenyatta university, ‘public interest and awareness programme’ (kenyatta university,17 april 2015) <http://law.ku.ac.ke/index.php/97-school-news/169-legalaid-awareness> accessed 17 november 2020 legal practitioners 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(2008) jjs 61< file:///c:/users/user/appdata/local/temp/juridic_v33_specialissue_a4.pdf > accessed 17 december 2020 mcquiod – mason, dj, ‘access to justice and the role of law schools in developing countries: some lessons from south africa – pre 1970 until 1990: part 1 (2004) 29(3) http://law.ku.ac.ke/index.php/97-school-news/169-legal-aid-awareness http://law.ku.ac.ke/index.php/97-school-news/169-legal-aid-awareness http://www.fidfund.co.za/bursaries/ practice report 146 jjs 33< https://journals.ufs.ac.za/index.php/jjs/article/download/2899/2812 > accessed 18 december 2020 mcquiod – mason, dj, ‘access to justice and the role of law schools in developing countries: some lessons from south africa: part 2: 1990 until the present (2005) 30(1) jjs 7 < https://journals.ufs.ac.za/index.php/jjs/article/view/2906 > accessed 20 december 2020 mcquoid-mason, dj and palmer, r, african law clinicians manual (2013) 3 < https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahuk ewivrk6i49htahwtqkeahcohdreqfjabegqiahac&url=https%3a%2f%2fir.ca nterbury.ac.nz%2fbitstream%2fhandle%2f10092%2f15366%2fafrican-lawclinicians-manual-mcquoidmason.pdf%3fsequence%3d2&usg=aovvaw2jkcdhq49ypai1ylx0yid9 > accessed 14 december 2020 mcquoid-mason, dj, ‘teaching social justice to law students through community servicethe south african experience’ < http://clarkcunningham.org/legaled/southafricamason1.pdf. > accessed 12 december 2020 mcquoid-mason, dj, ‘the delivery of civil legal aid services in south africa’ (2000) 24 filj s111, s129 < http://clarkcunningham.org/legaled/southafrica-mmfordham.pdf . > accessed 14 december 2020 https://journals.ufs.ac.za/index.php/jjs/article/download/2899/2812 https://journals.ufs.ac.za/index.php/jjs/article/view/2906 http://clarkcunningham.org/legaled/southafrica-mm-fordham.pdf http://clarkcunningham.org/legaled/southafrica-mm-fordham.pdf practice report 147 mcquoid-mason, dj, ojukwu,e and wachira, g, ‘clinical legal education in africa: legal education and community service’ in frank s bloch, the global clinical movement (oup 2011) namati, ‘association of university legal aid institutions’ (namati, 2020) < https://namati.org/network/organization/association-of-university-legal-aidinstitutions-aulai/> accessed 14 december 2020 nicolson d, our roots began in (south) africa: modelling law clinics to maximize social justice ends’ (2016) 23.3 ijcle < https://www.northumbriajournals.co.uk/index.php/ijcle/article/view/532/922 > accessed 12 december 2020 ouma, y and chege, e, ‘law clinics and access to justice in kenya: bridging the legal divide’ < https://doi.org/10.19164/ijcle.v23i5.567> accessed 18 december 2020. plessis, md, ‘forty-five years of clinical legal education in south africa’ (2019) 25 fundamina < http://dx.doi.org/10.17159/2411-7870/2019/v25n2a2 > accessed 12 december 2020 south african university law clinics association, ‘home’ <https://www.saulca.co.za/ accessed on 1 december 2020 the judiciary government of kenya, ‘what is pro bono/pauper brief?’ (judiciary) <https://www.judiciary.go.ke/what/ > accessed 12 november 2020 https://doi.org/10.19164/ijcle.v23i5.567 practice report 148 united nations office on drugs and crime, ‘united nations principles and guidelines on access to legal aid in criminal justice systems’ res a/67/458 (20 december 2012) united nations office on drugs and crime, global study on legal aid: global report (2016) university of limerick, ‘street law project’ (2018) < https://www.ul.ie/engage/sites/default/files/2018%20no%2041%20street%20law.pdf . > accessed 13 december 2020 uon salar, ‘the students’ association for legal aid and research’ (salar) <https://www.uonsalar.org/activities.html >accessed 17 november 2020 wabuke, es, nciko, a and abdirahman, a, ‘promoting access to justice in kenya: making the case for law clinics’ (the platform october 11 2018) < https://theplatform.co.ke/promoting-access-to-justice-in-kenya-making-the-case-forlaw-clinics/ > accessed 16 november 2020 wabuke, se, nciko, a and abdirahman, a, ‘promoting access to justice in kenya: making the case for law clinics’ (the platform october 11 2018) < https://theplatform.co.ke/promoting-access-to-justice-in-kenya-making-the-case-forlaw-clinics/ > accessed 16 november 2020 willem de klerk, 'university law clinics in south africa' (2005) 122 salj 930 https://theplatform.co.ke/promoting-access-to-justice-in-kenya-making-the-case-for-law-clinics/ https://theplatform.co.ke/promoting-access-to-justice-in-kenya-making-the-case-for-law-clinics/ https://theplatform.co.ke/promoting-access-to-justice-in-kenya-making-the-case-for-law-clinics/ https://theplatform.co.ke/promoting-access-to-justice-in-kenya-making-the-case-for-law-clinics/ project1 33 deconstructing innocence: reflections from a public defender: can student attorneys accept the paradigm of guilt and continue zealous representation? geneva brown assistant professor of law valparaiso university school of law, indiana, usa introduction i am a true believer.1 i was a public defender for nine years and represented thousands of guilty defendants without guilt or emotional angst. the public defender credo is to give zealous representation without consideration for the innocence or guilt of the client.2 as a clinical deconstructing innocence: reflections from a public defender: can student attorneys accept the paradigm of guilt and continue zealous representation? 1 see minna kotkin, creating true believers: putting macro theory into practice, 5 j. clinical l rev. 95 (1998). kotkin argues that clinical teachers should employ macro theory in their teaching methodology to introduce the idea of “critical lawyering as an over-arching paradigm that will imbue students with skills and a solid theoretical foundation.” see also damon centola, robb willer and michael macy, the emperor’s dilemma: a computational model of self-enforcing norms, 110 am. j. soc. 4 (2005). the authors describe the true believer as one who believes in the enforcement of a social norm, (in my case, the quality of representation has not defined the guilt or innocence of the client) and the enforcement of the norm is done for the right reason. they note it is better not to comply with the norm than create the illusion of sincerity. as the authors note, “true believers reserve special contempt for imposters.” id. 2 see charles j. ogletree, jr., beyond justifications: seeking motivations to sustain public defenders, 106 harv. l. rev. 1239 (1993); abbe smith & william montross, the calling of criminal defense, 50 mercer l. rev. 443 (1999). instructor i must impart ethical and diligent representation to my students.3 i found, however, when discussing cases during our weekly case rounds the paradigm of innocence would inevitably become a question for the student attorney. the students imputed guilt and innocence to be mutually exclusive. imparting the ethical component of criminal defense – to be competent in having legal knowledge, skill and thoroughness of preparation – to the students was a job i was thoroughly prepared to teach. i found, however, that beyond ethical considerations of representing clients, i needed to deconstruct innocence.4 i wanted to present to students a paradigm that guilt or innocence is secondary to servicing the needs of the client and protecting the client’s rights through the maze of a convoluted and dispassionate court system.5 creating a dialogue that evolved from loaded terms such as guilt, truth or innocence and creating representation where the focal point became servicing the needs of the client became my goal. this article examines the impact and the importance of the innocence movement and the unintended effects on criminal defense representation. part i examines the impact of innocence in my juvenile clinic. part ii proceeds to examine the paradigm of the innocence movement and its 34 journal of clinical legal education december 2008 3 see, e.g., steven hartwell, moral development, ethical conduct and clinical education, 35 n.y.l. sch. l. rev. 131 (1990); robert d. dinerstein, clinical scholarship and the justice mission, 40 clev. st. l. rev. 469 (1992); fren quigley, seizing the disorienting moment: adult learning theory and the teaching of social justice in law school clinics, 2 clinical l. rev. 37 (1995); minna j. kotkin, the law school clinic: a training ground for public interest lawyers in educating for justice: social values and legal education 129 (jeremy cooper & louise g. trubek eds., 1997). 4 the concern for the innocent being falsely convicted in the american criminal justice system is a well documented issue. my concern is that the state of being innocent overshadows client-centered representation. see, e.g., brandon garrett, judging innocence, 108 colum. l. rev. 55 (2008) (reviewing the empirical study conducted to determine how people who were ultimately exonerated were handled by the american criminal justice system); darryl k. brown, the decline of defense counsel and the rise of accuracy in criminal adjudication, 93 cal. l. rev. 1585, 1590-91, 1644 (2005) (describing impact of wrongful convictions on criminal trials and investigations); brandon garrett, aggregation in criminal law, 95 cal. l. rev. 383, 449-50 (2007) (exploring systemic reform efforts in courts and innocence commissions aiming to remedy wrongful convictions); brandon garrett, innocence harmless error, and federal wrongful conviction law, 2005 wis. l. rev. 35, 82-85, 99-110 (describing possible transformative effect of wrongful conviction cases on underlying criminal procedure rules); daniel s. medwed, innocence lost... and found: an introduction to the faces of wrongful conviction symposium issue, 37 golden gate u. l. rev. 1, 1 (2006) (introducing symposium); richard a. rosen, reflections on innocence, 2006 wis. l. rev. 237 (introducing symposium and discussing criminal justice in the age of innocence). 5 see generally, mary jo eyster, analysis of sexism in legal practice: a clinical approach, 38 j. legal educ. 183 (1988) (discussing the problems of sexism and strategies used to address the problems); shelley gavigan, twenty-five years of dynamic tension: the parkdale community legal services experience, 35 osgoode hall l.j. 443, 467 (1997) (discussing anti-racism skills); bill ong hing, raising personal identification issues of class, race, ethnicity, gender, sexual orientation, physical disability, and age in lawyering courses, 45 stan. l. rev. 1807 (1993); michelle s. jacobs, people from the footnotes: the missing element in client centered counseling, 27 golden gate u. l. rev. 345, 348 (1997) (exploring how race neutral-training of interviewing and counseling skills may lead to continued marginalization of clients of color); michelle s. jacobs, full legal representation for the poor: the clash between lawyer values and client worthiness, 44 how. l.j. 257 (2001) (explaining how law students engage in value ranking); michelle s. jacobs, clinical essay: legitimacy and the power game, 1 clinical l. rev. 187 (1994) (confronting the belief of many clinical instructors that supervisory relationships should be characterized by cooperative, equal, non-hierarchical organization); rose voyvodic & mary medcalf, advancing social justice through an interdisciplinary approach to clinical legal education: the case of legal assistance of windsor, 14 wasg. u. j.l. & pol’y 101 (2004). impact on the criminal justice system. part iii examines the rise of innocence projects and the effect on clinical legal education. part iv deconstructs the importance of innocence and the substantive and procedural problems with innocence. part v concludes the article with an assertion of the importance of zealous representation regardless of innocence or guilt. i. a question of innocence in my juvenile justice clinic, we began to represent two juvenile females who were both charged with prostitution.6 both girls, jill and dana, denied the charges at the initial hearing.7 i paired a student attorney and a student social worker to represent both girls. i immediately noticed an affinity the student attorney and the social worker had for jill. jill vehemently denied the charges. jill spoke softly with a slight southern drawl and was the model of courtesy. dana was more of an enigma. she was not forthcoming. dana was not so emphatic in her denials but she refused to enter an admission to a prostitution charge. during case rounds we discussed the similarities and differences of jill’s and dana’s cases. assumptions were immediately being made about jill. the students created a narrative of a runaway whose mother abandoned her and who was being exploited by a dangerous boyfriend and possible pimp.8 the police detained jill for being a minor in a casino in the company of a man they presumed was her pimp. dana did not have a narrative. the students reviewed the police reports. undercover vice detectives brought dana and her teenaged companion to a hotel room and arrested both of them after drinks and conversation. dana’s exploitation was ambiguous as was her innocence. the moral ambiguity in dana’s case was compounded by her refusal to accept plea bargains. the magistrate would only accept an admission to the charge or a trial.9 we were going to have to try deconstructing innocence: reflections from a public defender: can student attorneys accept the paradigm of guilt and continue zealous representation? 35 6 the treatment of teenaged prostitutes by the adult criminal or juvenile delinquency system motivated the students to keep our clients from being a party in the system any longer than necessary. for further discussion see geneva o. brown, little girl lost: las vegas metro police vice division and the use of material witness holds against teenaged prostitutes, 57 cath. u. l. rev. 471 (2008). 7 the names are changed to protect the confidential status of juvenile clients. 8 i would be remiss to dismiss the importance of narrative in representing clients but the students’ narrative emphasized innocence. see e.g., sarah buel, effective assistance of counsel for battered women defendants: a normative construct, 26 harv. women’s l.j. 217 (2003) (describing how lawyers must address race and class issues of battered woman for effective representation); leigh goodmark, telling stories, saving lives: battered mothers’ testimony project, womens’ narratives and court reform, 37 ariz. st. l.j. (2005) (describing the methodology, finding and conclusions of the battered mothers’ testimony project); v. puslani enos, lois kanter, who’s listening: introducing students to client-centered, client-empowering and multidisciplinary problem solving in a clinical setting, 9 clinical l. rev. 83 (2002) (describing the use of listening abilities of students involved in the boston medical center domestic violence project); john b. mitchell, narrative and client centered representation: what is a true believer to do when his two favorite theories collide, 6 clinical l. rev. 85 (1999); john b. mitchell, why should prosecutors get the last word, 27 amer. j. crim. l. 139 (2000) (examines why a system that is constructed to favor the defendant gives the last word to the state); patricia puritz & katayoon majd, ensuring authentic youth participation in delinquency cases: creating a specialized paradigm for juvenile defense practice, 45 fam. ct. rev 466 (2007) (describing how juvenile defense attorneys must challenge racial, class and gender injustices in the juvenile system). 9 the constitutional rights of juvenile defendants are a continuing cause for concern. for more on juvenile rights see mary berkheiser, the fiction of juvenile right to counsel: waiver in the juvenile courts, 54 fla. l. rev. 577 (2002); cecilia espenoza, good kids, bad kids: a revelation about the due process rights of kids, 23 hatings const. l.q. 402 (1996). a case with a less than innocent client. the district attorney could not prove jill was a prostitute and the court dismissed the petition. was jill any more innocent than dana was guilty? the students became frustrated with representation because they did not know if dana was a child lured and entrapped by vice detectives or if she was a provocative child-woman who went to a hotel room with strange men prepared to have sex in exchange for money.10 reflecting on case rounds involving jill and dana’s cases, i garnered that they wanted to know if either was innocent. we would discuss the weight of the evidence which was greater against dana than jill. in general, the students attempted to decipher culpability from police reports and their own investigations. after meetings with the clients, the defense team drew their conclusions. in both cases, the reports varied from jill and dana’s version of events. the defense team embraced jill’s innocence while dana’s innocence was, at best, inconclusive. dana received quality representation but the defense team was not enthralled. when we discussed cases, a greater zeal was given to jill’s defense. jill’s case took on a greater urgency than dana’s. we had to win jill’s case. she was innocent. dana’s case meant a trial with seasoned and sullied vice squad detectives testifying about our worldly client’s sexual conversation. dana was more than likely guilty. why did she insist on having a trial? as a former public defender, i understood how one felt compelled by the urgency of representing innocent clients.11 no defense attorney wants to see an innocent person convicted of a crime. nevertheless, as a public defender, i vowed zealous representation no matter the status of the client. diligence is expected in representing any client.12 zealous representation is a matter of 36 journal of clinical legal education december 2008 10 representing teenaged prostitutes can be a complex task. dana was the composite of both the exploited child-woman and the worldly teenaged prostitute. see magnus seng, child sexual abuse and adolescent prostitution: a comparative analysis, 24 adolescence 665 (1989). 11 see, e.g., albert w. alschuler, implementing the criminal defendant's right to trial: alternatives to the plea bargaining system, 50 u. chi. l. rev. 931, 93234 (1983); john l. barkai, accuracy inquiries for all felony and misdemeanor pleas: voluntary pleas but innocent defendants?, 126 u. pa. l. rev. 88, 88-90 (1977); stephanos bibas, harmonizing substantivecriminal-law values and criminal procedure: the case of alford and nolo contendere pleas, 88 cornell l. rev. 1361, 1382-86 (2003); josh bower, punishing the innocent, 156 u. pa. l. rev. 1117 (2008); john g. douglass, fatal attraction? the uneasy courtship of brady and plea bargaining, 50 emory l.j. 437, 444-52 (2001); daniel givelber, punishing protestations of innocence: denying responsibility and its consequences, 37 am. crim. l. rev. 1363, 1364-71, 1384 (2000); kenneth kipnis, criminal justice and the negotiated plea, 86 ethics 93, 97–100 (1976); laurie l. levenson, police corruption and new models for reform, 35 suffolk u. l. rev. 1, 42 (2001); david lynch, the impropriety of plea agreements: a tale of two counties, 19 law & soc. inquiry 115, 132 (1994); kevin c. mcmunigal, disclosure and accuracy in the guilty plea process, 40 hastings l.j. 957, 986-90 (1989); stephen j. schulhofer, criminal justice discretion as a regulatory system, 17 j. legal stud. 43, 52 (1988); stephen j. schulhofer, plea bargaining as disaster, 101 yale l.j. 1979, 1992 (1992); abbe smith, defending the innocent, 32 conn. l. rev. 485, 494 (2000); katherine j. strandburg, deterrence and the conviction of innocents, 35 conn. l. rev. 1321, 1336 (2003); fred c. zacharias, justice in plea bargaining, 39 wm. & mary l. rev. 1121, 1151-55 (1998). 12 see aba ctr. for prof ’l responsibility, model rules of prof ’l conduct r. 1.3 (diligence in the client-lawyer relationship). “a lawyer shall act with reasonable diligence and promptness in representing a client.” see also michelle craven & michael pitman, to the best of one’s ability: a guide to effective lawyering, 14 geo. j. legal ethics 983. contra anita bernstein, the zeal shortage, 34 hofstra l. rev. 1165 (2006). personal choice.13 my philosophy in the juvenile clinic was that innocence did not matter but quality representation did. i did not want the student attorneys or social workers becoming emotionally or morally invested in innocent clients. they would extend more time and energy to the jills of the world when the danas are in true need of zealous representation. i inquired of the team why was innocence more compelling? i redirected the team to the idea that the more compelling case may be a teenaged prostitute who is guilty and who may have contemplated sex with strange men in hotels. such cases are representative of girls who come from abusive, dysfunctional backgrounds and needed extra care. innocence could not become more important than the need for client-centered representation. i was in a quandary as to why innocence dominated case round discussions and the defense team focus. why had innocence become the lynchpin of receiving zealous defense? the rise of the importance of innocence in criminal defense has a tragic history. ii. innocence paradigm circumstances in the state of illinois came to underpin the importance of the innocence movement. illinois exonerated more death row inmates than they executed since the death penalty was reinstituted in 1977.14 anthony porter was two days from being executed by the state of illinois for a double murder but was eventually exonerated by the gov. george ryan.15 gov. ryan deconstructing innocence: reflections from a public defender: can student attorneys accept the paradigm of guilt and continue zealous representation? 37 13 i define zealous representation as the ability to give quality representation to any client no matter what the charge or whether the client maintains his or her innocence or is guilty of the crime(s) charged. see also sylvia steven, whither zeal? defending zealous representation, 65 or. st. b. bull. 27 (2005). stevens laments the lack of the requirements of zealous representation by the aba model rules of professional conduct and the oregon state bar rules. id. stevens defines zealous representation as “doing your best and being dogged in pursuit of the client's aims within the bounds of the law and the ethical rules. it is compatible with civility and courtesy and, in my humble opinion, the highest manifestation of professionalism.” id. at 28. 14 in 1972, the u.s. supreme court held in furman v. georgia, 408 u.s. 238 (1972), the imposition of the death penalty was arbitrary and inconsistent and violated the eighth and fourteenth amendments of the u.s. constitution. a moratorium against the death penalty remained in effect until the 1977 decision in gregg v. georgia, 428 u.s. 153 (1976), that reinstated the use of the death penalty after states addressed the problems of arbitrary and capricious imposition. 15 see also david horan, the innocence commission: an independent review board for wrongful convictions, 20 n. ill. u. l. rev. 91, 94 (2000). see ken armstrong & steve mills, ryan suspends death penalty, chi. trib., jan. 31, 2000, at 1; death penalty panel is no pr stunt, chi. trib., apr. 8, 1999, at 18 (“the universal recognition—by all three branches of state government, plus a legal group—that there's something wrong with the death penalty process is a crucial and welcome step toward needed reform.”); death ‘system’ does not work, cap. times (madison, wis.), feb. 8, 1999, at 2c (reporting the call by the chicago tribune and the chicago sun-times and legislators from both parties for a moratorium on executions in illinois); ray long, revamp likely in process for death penalty, chi. trib., may 18, 1999, at 20 (describing illinois lawmakers as “scrambling to agree on how to revamp the state's death penalty procedures following several high-profile cases in which innocent men were released from death row”); rick pearson & gary washburn, a change of heart on execution cases: in the wake of pressure after anthony porter's release, both gov. ryan and mayor daley now see serious flaws in the deathpenalty process, chi. trib., feb. 11, 1999, at 1 (noting that “the actions [of proposing reforms] by two lawand-order conservative republicans add up to a political acknowledgment that the public's confidence in the death penalty has been shaken”); don thompson, republicans back death penalty study, chi. daily herald, mar. 24, 1999, at 9 (“two law-and-order suburban representatives plan today to join the push for a moratorium and study of what's wrong with the way illinois administers the death penalty.”). anthony porter's case, which resulted in his release on his own recognizance from death row on february 5, 1999, and the subsequent vacating of his murder convictions on march 11, 1999, daniel lehmann, porter cleared of '82 murders, chi. sun-times, mar. 12, 1999, at 8, is both a horror story and a fairly representative proceeded to place a moratorium on administration of the death penalty in illinois and removed all inmates from death row.16 gov. ryan’s decision gave impetus not only to death penalty opponents but to the innocence movement. barry scheck and peter neufeld began the first innocence project at cordozo law school at yeshiva university in 1992.17 the innocence project represented a different model than traditional clinics. the focus was on the claim of innocence and innocence that could be proven through dna testing.18 the innocence project client generally had exhausted criminal appeals.19 the innocence network has assisted in freeing at least 218 wrongfully convicted persons since its inception, 16 from death row.20 38 journal of clinical legal education december 2008 (15 cont.) exemplar of a wrongful conviction, remarkable only for the success with which the miscarriage of justice was ultimately addressed. as in so many other cases, porter's innocence was demonstrated by dedicated individuals outside of the criminal justice and court systems. see jim allen, ex-prisoner praises students who helped free him, chi. daily herald, feb. 6, 1999, at 9 (quoting northwestern university journalism professor david protess saying, “‘[t]he system was forced from the outside to recognize its injustice.’”). porter was convicted of a 1982 double murder. see pam belluck, convict freed after 16 years on death row, n.y. times, feb. 6, 1999, at a7. his case went through the state and federal courts' direct appeal and post-conviction review processes from the time of his conviction until march 1998. in september 1998, “two days before mr. porter was to be executed, his lawyers won a stay while a court considered a motion that mr. porter, who has an i.q. of 51, was not competent enough to be put to death.” belluck, supra, a7. the extent of porter's mental incapacity was only discovered at that late date because porter's trial counsel had neither the experience nor the funding to investigate his case properly. ken armstrong, bar urges changes in capital cases: reforms proposed to give defendants better trial resources, chi. trib., feb. 27, 1999, at 1 (describing porter's trial attorney's financial inability “to do much, if any, pretrial investigation”). therefore, “he [did not] establish[] that his client was mentally retarded – and thus without the requisite level of responsibility to merit the death penalty.” reforming illinois' death penalty, chi. trib., mar. 17, 1999, at 22. “after that, [northwestern university journalism professor david] protess, who each semester assigns his class murder cases to re-investigate, gave his students the porter case.” belluck, supra, at a7. these students, assisted by professor protess and a private investigator, thoroughly reinvestigated the case and discovered major discrepancies in the accounts of the murders, a confession by the main prosecution witness “[saying] he had been pressured during hours of questioning by the police to implicate mr. porter,” and finally confessions from the actual murderer's wife and then the nowconfessed murderer himself, alstory simon, exonerating porter. belluck, supra, at a7. although the illinois authorities never investigated any other suspect for the murders, see eric zorn, a few words come to mind for death row system, chi. trib., feb. 9, 1999, at 1, porter “maintained his innocence ever since the day of his arrest,” through the course of over sixteen years in prison and a full array of capital appeals terminating with the supreme court's denial of certiorari on federal habeas corpus in march 1998. john carpenter & alex rodriguez, ‘i'm free’: wrongly convicted of double murder, porter off death row, chi. suntimes, feb. 6, 1999, at 1; see also porter v. gilmore, 118 s. ct. 1343 (1998) (denying petitions for rehearing on denial of certiorari). governor george ryan pardoned porter of the double murder on march 19, 1999, to assist in a claim for compensation for wrongful imprisonment from the state. see governor pardons ex-inmate porter, chi. trib, mar. 20, 1999, at 5. alstory simon eventually pleaded guilty to the double murder. see tom ragan, years after death row, travesty, killer gets due, chi trib., sept. 8, 1999, at 1. on september 20, 1999, prosecutors finally dropped armed robbery charges against porter, stemming from the same night as the double murder for which porter was convicted to death. see monica davey, porter at last free of all charges: wrongly sentenced to die, he awaits 2nd pardon, chi. trib., sept. 21, 1999, at 1. 16 see governor ryan halts the death penalty calls for study of state’s messed-up system, chi. trib., feb. 8, 2000; governor commutes all death sentences, chi. trib., jan. 11, 2003. 17 see innocence project, at http://www.innocence p r o j e c t . o r g / a b o u t / m i s s i o n s t a t e m e n t . p h p [hereinafter innocence project](last visited sept. 29, 2008). 18 id. 19 id. 20 the innocence project detailed that there are 220 post-conviction exonerations in united states’ history with the average falsely convicted person serving a twelve-year sentence. seventeen falsely convicted persons received death sentences before being exonerated. innocence project at http://www.innocenceproject.org/know/. iii. innocence in clinical legal education in many jurisdictions clinical education has become invaluable in training law students for the essentials of law practice.21 in the united states clinical education is now an essential component of legal education. the innocence projects have expounded on the clinical education model. students have life changing experiences representing men and women exonerated after spending decades in prison and in some cases on death row. the innocence project has wielded great influence on clinical education.22 in particular, keith findley details the skills students develop in deconstructing innocence: reflections from a public defender: can student attorneys accept the paradigm of guilt and continue zealous representation? 39 21 see legal education and professional development— an educational continuum: report of the task force on law schools and the profession: narrowing the gap, 1992 a.b.a. sec. legal educ. & admissions to the bar. xi, http://www.abanet.org/legaled/ publications/onlinepubs/maccrate.html#b.%20ov erview%20of%20the%20skills%20and%20value s%20analyzed [hereinafter maccrate report]. the report analyzes the fundamental lawyering skills essential for competent representation. it begins with two analytical skills that are conceptual foundations for virtually all aspects of legal practice: problem solving (skill § 1) and legal analysis (skill § 2). it then examines five skills that are essential throughout a wide range of kinds of legal practice: legal research (skill § 3), factual investigation (skill § 4), communication (skill § 5), counseling (skill § 6), and negotiation (skill § 7). the statement next focuses upon the skills required to employ, or to advise a client about the options of litigation and alternative dispute resolution (skill § 8). although there are many lawyers who do not engage in litigation or make use of alternative dispute resolution mechanisms, even these lawyers are frequently in a position of having to consider litigation or alternative dispute resolution as possible solutions to a client's problem, or to counsel a client about these options, or to factor the options into planning for negotiation. to accomplish these tasks, a lawyer needs to have at least a basic familiarity with the aspects of litigation and alternative dispute resolution described in skill § 8. skill § 9 identifies the administrative skills necessary to organize and manage legal work effectively. this section reflects the perception that adequate practice management skills are an essential precondition for competent representation of clients. finally, skill § 10 analyzes the skills involved in recognizing and resolving ethical dilemmas. id. 22 see keith a. findley, the pedagogy of the innocent: reflections on the role of innocence projects in clinical legal education, 13 clinic l. rev. 231 (2006) [hereinafter findley, pedagogy]; barry scheck, peter neufeld & jim dwyer, actual inncence: five days to execution, and other dispatches from the wrongly convicted (2000); george h. ryan, report of the governor’s commission on capital punishment (apr. 15, 2002), http://www.idoc.state. 21 il.us/ccp/ccp/reports/index.html; innocence commission for virginia, a vision for justice (2005), available at http://www.icva.us/; gary l. wells et al., eyewitness identification procedures: recommendations for lineups and photospreads, 22 law & hum. behav. 9 (1998); thomas p. sullivan, police experiences with recording custodial interrogations, special report, nw. u. sch. l., center on wrongful convictions (summer 2004); steven a. drizin & richard a. leo, the problem of false confessions in the postdna world, 82 n.c. l. rev. 991 (2004); richard a. leo & richard j. ofshe, the consequences of false confessions: deprivations of liberty and miscarriages of justice in the age of psychological interrogation, 88 j. crim. l. & criminology 429 (1998); gail johnson, false confessions and fundamental fairness: the need for electronic recording of custodial interrogations, 6 b.u. pub. int. l.j. 719 (1997); steven a. drizin & beth a. colgan, let the cameras roll: mandatory videotaping of interrogations is the solution to illinois' problem of false confessions, 32 loy. u. chi. l.j. 337 (2001); keith a. findley, learning from our mistakes: a criminal justice study commission to study wrongful convictions, 38 cal. w. l. rev. 333 (2002); michael j. saks et al., toward a model act for the prevention and remedy of erroneous convictions, 35 new eng. l. rev. 669 (2001); sharone levy, righting illinois' wrongs: suggestions for reform and a call for abolition, 34 j. marshall l. rev. 469 (2001); steven clark, procedural reforms in capital cases applied to perjury, 34 j. marshall l. rev. 453 (2001); michael j. saks & jonathan j. koehler, what dna “fingerprinting” can teach the law about the rest of forensic science, 13 cardozo l. rev. 361 (1991); george castelle, lab fraud: lessons learned, the champion, may 1999 at 12; scott bales, turning the microscope back on forensic scientists, 26 litig. 51 (2000); u.s. dep’t of justice, office of justice programs, national institute of justice, a report from the national commission on the future of dna evidence, postconviction dna testing: recommendations for handling requests (1999), http:/www.ojp.usdoj. gov/nij/pubssum/177626. htm.; rob warden, the snitch system, nw. u. sch. l., center on wrongful convictions (winter 2004-2005), available at http:// www.law.northwestern.edu/wrongfulconvictions/d ocuments/snitchsystembooklet.pdf; daniel givelber, meaningless acquittals, meaningful representing clients in wrongful conviction cases: “innocence projects offer particularly good opportunities for learning about the importance of facts; about the importance of being skeptical, vigilant, and thorough; about ethics, values, and judgment; and about the criminal justice system itself – from obtaining a critical perspective on legal doctrine to a critical understanding of ‘the law in action,’ that is, how the criminal justice system actually works, and how it might be made to work more effectively and fairly.”23 the valuable work of innocence projects can be measured by the many reforms instituted in the criminal justice system after highlighting the plight of the wrongfully convicted.24 the media has also become a key player in the portrayal of the wrongfully convicted person. the american public can watch in real time as a prison releases a wrongfully convicted man or woman after decades of imprisonment.25 the portrayals of release are emotional and they strike a chord with the american public. the cases, the narratives and the images of the innocent leave an effect on our collective psyche. an unintended consequence however may be the focus on the importance of innocence. 40 journal of clinical legal education december 2008 (22 cont.) convictions: do we reliably acquit the innocent?, 49 rutgers l. rev 1317 (1997); brandon l. garrett, innocence, harmless error, and federal wrongful conviction law, wis. l. rev. 35 (2005); stanley z. fisher, convictions of innocent persons in massachusetts: an overview, 12 b.u. pub. int. l.j. 1 (2002); myrna raeder, what does innocence have to do with it? a commentary on wrongful convictions and rationality, mich. st l. rev. 1315 (2003); daniel s. medwed, the zeal deal: prosecutorial resistance to post-conviction claims of innocence, 84 b.u. l. rev. 125 (2004); richard a. rosen, reflections on innocence, wis. l. rev. 237 (2006); keith a. findley & michael s. scott, the multiple dimensions of tunnel vision in criminal cases, wis. l. rev. 291 (2006); peter a. joy, the relationship between prosecutorial misconduct and wrongful convictions: shaping remedies for a broken system, wis. l. rev. 399 (2006); richard a. leo et al., bringing reliability back in: false confessions and legal safeguards in the twenty-first century, wis. l. rev. 479 (2006); mary prosser, reforming criminal discovery: why old objections must yield to new realities, wis. l. rev. 541 (2006); gary l. wells, eyewitness identification: systemic reforms, wis. l. rev. 615 (2006); katherine r. kruse, instituting innocence reform: wisconsin's new governance experiment, wis. l. rev. 645 (2006); rodney uphoff, convicting the innocence: aberration or systemic problem?, wis. l. rev. 739 (2006). 23 see findley, pedagogy, supra note 22, at 241. findley quotes dean ken davis in describing “law in action” as the concept of the legal educational philosophy at the university of wisconsin law school. as dean davis has explained, wisconsin has a tradition of focusing its scholarship and teaching on “law in action,” the concept that “in order to truly understand the law, you need not only to know the ‘law on the books,’ but also to look beyond the statutes and cases and study how the law plays out in practice.” dean davis has written, “‘law in action’ reminds us that no matter how interesting or elegant the theory or idea, we always need to ask, ‘why should this matter to people in the real world?’” kenneth b. davis, law in action: the dean's view, available at www.law.wisc.edu/davislawinactionessay.htm at 1. 24 see innocence project, supra note 17, available at h t t p : / / w w w. i n n o c e n c e p ro j e c t . o r g / f i x / f a l s e confessions.php. the innocence project reports that the recording of interrogations reduces the likelihood of false confessions. the supreme courts of alaska and minnesota have declared that, under their state constitutions, defendants are entitled as a matter of due process to have their custodial interrogations recorded. in 2003, illinois became the first state to require by law that all police interrogations of suspects in homicide cases must be recorded. police departments in broward county (florida) and santa clara county (california), among others, have begun to record interrogations without a law requiring them. proactive policies like these have been adopted because the practice benefits police and prosecutors as well as innocent suspects. id. 25 see elliot c. mclauglin, convicted by doodles, masters is freed by dna, jan. 25, 2008, available at http://www.cnn.com/2008/crime/01/22/masters.ca se/index.html#cnnstctext iv. deconstructing innocence fundamental question has the emphasis on innocence of late created a category of clients that have been deemed more worthy of zealous representation? no one deserves greater representation than does the wrongfully convicted who did not receive it and paid the costs with their freedom. the illinois commission on the death penalty cited inadequate representation as one of the major problems of how the innocent become convicted of crimes they did not commit.26 the potential problem becomes the emphasis on the person who was wrongfully convicted and not on the system that allowed an innocent person to be convicted. the narratives of the wrongfully convicted persons are riveting.27 spending decades in prison and potentially having exhausted all appellate remedies, the innocence project has been the only hope for many. the innocence project has also been the catalyst for criminal justice reform.28 critics however, note that the focus on innocence in the media and government creates an unintended consequence of innocence being the exclusive reason for reform or zealous representation.29 innocence can be a dual-edged sword. the focus on innocence brought needed attention to a troubled system but it has also been used as a gate keeping function in federal courts. the focus on innocence created procedural and substantive problems. the courts and congress used innocence as a procedural bar and severely limited access to grant habeas review in the name of innocence. innocence has a profoundly negative impact on non-innocence substantive issues such as justification defenses and constitutional violations. the procedural problem and the original innocence movement carol steiker and jordan steiker extrapolate that the first innocence movement began after the warren court introduced expansive treatment of collateral federal review of state court convictions as a vehicle for the consideration of all federal constitutional claims in a federal deconstructing innocence: reflections from a public defender: can student attorneys accept the paradigm of guilt and continue zealous representation? 41 26 george h. ryan, governor, report of the governor’s commission on capital punishment, 108 (apr. 15, 2002), http://www.idoc.state.il.us/ccp/ccp/reports/ commission_report/chapter_07.pdf. see also ken armstrong and steve mills, the failure of the death penalty in illinois, part 2: inept defenses cloud verdict (nov. 15, 1999), http://www.chicagotribune.com/ news/specials/chi-991115deathillinois2,0,721147. story. 27 see jim dwyer, peter neufeld & barry scheck, actual innocence: five days to execution and other dispatches from the wrongfully convicted (2000). 28 the innocence project has a series of priority issues that would assist in fixing the system including: eyewitness identification, false confessions, dna testing access, evidence preservation, forensic oversight, innocence commissions and exoneree compensation. innocence project, http://www.innocenceproject.org/fix/priorityissues.php. the innocence project also assisted in federal legislation, the justice for all act of 2004, public law 108-405,108th congress. the purpose of the act is to protect crime victims' rights, to eliminate the substantial backlog of dna samples collected from crime scenes and convicted offenders, to improve and expand the dna testing capacity of federal, state, and local crime laboratories, to increase research and development of new dna testing technologies, to develop new training programs regarding the collection and use of dna evidence, to provide post-conviction testing of dna evidence to exonerate the innocent, to improve the performance of counsel in state capital cases, and for other purposes. available at http://www.govtrack.us/congress/billtext.xpd?bill=h 108-5107. 29 see infra notes 30–48. see also brandon l. garrett, judging innocence, 108 colum. l. rev. 55 (2008); daniel medwed, innocentrism, 2008 u. ill. l. rev. 1549 (2008); andrew m. siegel, moving down the wedge of injustice: a proposal for third generation wrongful conviction scholarship and advocacy, 42 amer. crim. l. rev. 1219 (2005). forum.30 paradoxically, actual innocence became a narrowing avenue for appellate review in reaction to the warren court. the supreme court guided by justices burger and rehnquist limited the substantive scope of federal habeas review.31 the court emphasized innocence as a limiting criterion.32 the court precluded re-litigation of fourth amendment claims rationalizing that it would impede claims rather than promote the accuracy of criminal verdicts.33 the court proceeded to preclude “new” constitutional claims and allowed only narrow exceptions.34 lastly, the court relaxed the standard for finding constitutional errors. the court allowed findings of harmless on habeas review, determining that only truly grievous constitutional wrongs—conviction of the innocent being the paramount case—should be corrected on habeas.35 congress added legislation to the first innocence movement by amending the federal habeas statute in the antiterrorism and effective death penalty act of 1996 (aedpa).36 congress crafted an innocence exception that relied exclusively on factual innocence.37 the law required that the petitioner prove such factual innocence by “clear and convincing evidence” as opposed to the previous and more lenient “more likely than not” evidentiary standard.38 the use of factual innocence as the essential factor for review established two governmental paradigms: 1) acknowledgement of innocent persons being convicted and 2) the use of factual innocence to limit 42 journal of clinical legal education december 2008 30 carol steiker & jordan steiker, the seduction of innocence: the attraction and limitation of the focus on innocence in capital punishment law and advocacy, 95 j. crim. l. & criminology 587, 609 (2005) [hereinafter steiker & steiker]. the authors note that in response to the warren court's incorporation of the criminal procedure provisions of the bill of rights, its expansive reading of those provisions, and its liberal approach toward the availability of federal review of state court convictions, the burger and rehnquist courts moved in the 1970s and 1980s to craft rules of constitutional adjudication in the criminal process to focus on truth-seeking rather than vindication of constitutional rights per se. id. 31 id. citing wainwright v. sykes, 433 u.s. 72 (1977) (excuse for petitioner's failure to comply with state procedural rule must meet “cause and prejudice” standard rather than “deliberate bypass” standard of fay v. noia, 372 u.s. 391 (1963)); keeney v. tamayo-reyes, 504 u.s. 1 (1992) (applying “cause and prejudice” standard to failure to develop the facts underlying claim) (overruling townsend v. sain, 372 u.s. 293 (1963)); mccleskey v. zant, 499 u.s. 467 (1991) (applying “cause and prejudice” standard to new claims not presented in previous petition); kuhlmann v. wilson, 477 u.s. 436 (1986) (applying “cause and prejudice” standard to successive claims raising grounds identical to grounds heard and decided on the merits in a previous petition). 32 the authors note that the court in mccleskey v. zant, murray v. carrier and kuhlmann v. wilson decisions crafted a narrow “miscarriage of justice” exception to the “cause and prejudice” requirement, allowing petitioners to raise successive claims, repetitive new claims, or defaulted claims if they made a colorable showing of actual innocence of the underlying crime. see mccleskey v. zant, 499 u.s. 467 (1991) (repetitive new claims); murray v. carrier, 477 u.s. 478 (1986) (defaulted claims); kuhlmann v. wilson, 477 u.s. 436 (1986) (successive claims); see also sawyer v. whitley, 505 u.s. 333 (1992) (crafting an even narrower “innocent of the death penalty” miscarriage-of-justice exception). 33 steiker & steiker, supra note 30, at 610, citing stone v. powell, 428 u.s. 465 (1976) (denied granting relief based on fourth amendment claim litigated at trial). 34 id., citing teague v. lane, 489 u.s. 288 (1989)(barred relief based on state rule that was not established during the state decision). 35 id., citing brecht v. abrahamson, 507 u.s. 619 (1993)(relaxed the constitutional standards for harmless error from beyond a reasonable doubt to whether error had substantial and injurious effect). 36 id. at 611, citing pub. l. no. 104-132, 110 stat. 1214 (1996) (codified as amended in scattered sections of 28 u.s.c.). 37 28 u.s.c. § 2244(b)(2)(b)(ii). 38 steiker & steiker, supra note 30, at 610, citing murray v. carrier, 477 u.s. 478, 496 (1986). the court imposed a “clear and convincing” standard of proof only on defendants seeking to show that they were ineligible for the death penalty, rather than innocent of the underlying offense. see also sawyer, 505 u.s. at 336. all other claims including those of a constitutional nature. steiker and steiker postulate that judicial and legislative re-calibration of federal habeas corpus relief was part of a larger movement to accurate determination of guilt or innocence which became the only value in constitutional criminal procedure.39 congress and the federal courts used innocence to limit access of defendants to the courts. a study completed by the u.s. department of justice reiterates steiker and steiker’s findings. the implementation of the aedpa reduced the number of evidentiary hearings granted based on habeas petitions by half.40 using innocence as the impetus for change had a chilling effect in capital habeas cases.41 substantive problems with innocence the emphasis on factual innocence undermines traditional approaches to criminal defense. the focus on wrongful convictions creates what margaret raymond quantifies as a “supercategory of innocence”.42 factual innocence is elevated over other categories of innocence.43 at trial, the jury must determine whether there is sufficient evidence to determine guilt.44 the defendant does not bear the burden of proving factual innocence or the legally presumed innocence guaranteed by the constitution.45 the cultural and legal focus on factual innocence may lead juries to conclude that evidence short of factual innocence does not justify an acquittal.46 the constitutional rights of defendants will become secondary to innocence determinations. the focus on innocence subverts the concern criminal defense litigators have about protecting defendants’ constitutional rights and launching challenges to illegal search and seizures.47 constitutional claims of guilty defendants lack the visceral appeal of innocence claims.48 v. conclusion the innocence movement has proven invaluable in bringing attention to a myriad of problems in the criminal justice system. the revelation and poignant freeing of wrongfully convicted persons has influenced legislative and court reforms. criminal defense attorneys and prosecutors are being held to more stringent standards. the innocence movement has revolutionized clinical legal education as well. student attorneys engage in life altering cases and in instances such as anthony deconstructing innocence: reflections from a public defender: can student attorneys accept the paradigm of guilt and continue zealous representation? 43 39 steiker & steiker, supra note 30, at 612. 40 nancy king, fred cheesman, & brian ostrom, executive summary: habeas litigation in u.s. district courts: an empirical study of habeas corpus cases filed by state prisoners under the antiterrorism and effective death penalty act of 1996, nat’l inst. just., office of justice programs, u.s. dep’t of justice, aug. 21, 2007, at 5. 41 see todd e. pettys, killing roger coleman: habeas, finality and the innocence gap, 48 wm. & mary l. rev. 2313 (2007) (discussing the innocence gap created in habeas procedures – a gap between the amount of exculpatory evidence sufficient to thwart finality of habeas petition versus the amount of exculpatory evidence sufficient to persuade a federal court to forgive petitioners procedural mistakes and review based on the constitutional merits). 42 margaret raymond, the problem with innocence, 49 clev st. l. rev. 449, 457 (2001). 43 id. 44 id. 45 id. 46 id. 47 see medwed, supra note 29, at 1556,citing linda j. skitka & david a. houston, when due process is of no consequence: moral mandates and presumed defendant guilt or innocence, 14 j. int’l soc’y just. res. 305, 323 (2001) (presenting results of empirical studies from psychologists that suggest people tend to disregard due process values when they believe they know the defendant to be guilty or innocent). 48 id. porter’s case actually save peoples’ lives. as the students learn to engage in a flawed system they also need to grasp that some clients are guilty. quality representation should never be reduced to essentialist standards of guilt or innocence. zealous representation should never be married to the importance of innocence. the flaws in the criminal justice system that convict the innocent also taint the guilty. jill and dana represent a cautionary tale of the attractiveness of innocence. i diligently guard against being seduced by innocence. innocence should never replace the foundations of zealous representation. jill and dana deserved engaged and zealous student attorneys no matter their status. 44 journal of clinical legal education december 2008 45 constructing a clinical legal education approach for large multicultural classes: insights from the nigerian law school a student right of audience? implications of law students appearing in court susan campbell* this article examines the policy considerations underlying the common law limitation of the right of audience in the courts to professionally qualified and regulated advocates. it discusses the program conducted by monash university in australia whereby law students regularly represent their clients in court and analyses the safeguards built into this program in an attempt to meet those policy considerations. finally the article looks briefly at the intriguing question of whether student advocates might be immune from liability for negligence, since that immunity still applies in australia. part i the common law right of audience the common law principle that only professionally qualified lawyers are entitled to represent litigants in court is deeply embedded in english and australian legal consciousness. judith dickson1 has traced the origins of this principle back as early as the late fourteenth century but contemporary courts in both jurisdictions usually begin a discussion of the principle with reference to collier v hicks2 where lord tenterden cj said “the superior courts do not allow every person to interfere in the proceedings as an advocate but confine that privilege to gentlemen admitted to the bar by the members of one of the inns of court”3 and parke j referred to the “ancient usage” whereby “persons of a particular class are allowed to practise as advocates”.4 a snapshot of cases across the succeeding one hundred and seventy years shows the courts upholding this principle without question. in tritonia ltd v equity and law life assurance society5 viscount simon lc referred to the rule “limiting a right of audience on behalf of others to 22 journal of clinical legal education july 2004 i am grateful for the comments of the member of the editorial board who acted as referee for this article. my thanks also to my research assistant, safeera abdul wahid. *professional fellow in legal practice, faculty of law, monash university, victoria, australia susan campbell is director of legal practice programs at monash university and runs, among other things, the law faculty’s clinical legal education program. 1 dickson j, “students in court: competent and ethical advocates” (1998) vol 16(2) journal of professional legal education 155 at p.158 2 (1831) 2 b. & ad. 663; 109 er 1290 3 ibid at 668; 1292 4 ibid at 671; 1293 5 [1943] ac 584 members of the english or scottish or northern irish bars”6 and in abse v smith7 lord donaldson mr went so far as to say “limitation of the categories of persons whom courts are prepared to hear as advocates for parties to proceedings before them is, so far as i know, a feature of all developed systems for the administration of justice.”8 in australia both state and federal courts have unhesitatingly applied the principle, the most recent example being the decision of the new south wales court of appeal in damjanovic v maley.9 the emergence in the 1970’s of the concept of the “mckenzie friend” might be thought to have represented an inroad into the profession’s monopoly on the right of audience. however it is clear from mckenzie and subsequent cases that the role of a mckenzie friend does not include the right to address the court. in mckenzie v mckenzie10 itself davies lj11 quoted the words of lord tenterden cj in collier v hicks that any one may attend court “as a friend of either party, may take notes, may quietly make suggestions, and give advice but no one can demand to take part in the proceedings as an advocate.”12 recent english cases (which may reflect a trend toward the increasing use of lay advocates) reinforce the limits on the activities of a mckenzie friend. they go on to assert a court’s power to control and if necessary to banish a mckenzie friend whose conduct disrupts the proceedings. in r v bow county court ex p pelling13 lord woolf gave as an example the friend indirectly running the case and using the litigant as a puppet. staughton lj in r v leicester city justices ex p barrow14 cited conduct such as wasting time as by prompting the litigant to ask irrelevant questions. whatever the behaviour of a mckenzie friend, it is clear that the role in fact reinforces the common law limitation on the right of audience. the principle is largely mirrored, rather than altered, by statute.15 australian legislation governing the jurisdiction and procedure in each court generally provides that a party to proceedings before the court may appear either personally or by a legal practitioner. it is worth noting that, even in those states where the profession was formerly divided, the legislation frequently gave both branches of the profession a right of audience. for example, the new south wales district court act 1973 provides that “a party to any proceedings may appear by a barrister or solicitor retained by or on behalf of that party.”16 in those states where the profession is legally fused, such as victoria, the distinction between barristers and solicitors is of course irrelevant (although it is not entirely unknown for some judges to be “unable to hear” a solicitor seeking to appear before them). the recent extension of the right of audience to solicitors in england and wales, through the courts and legal services act 1990 and the access to justice act 1999, brings australian and english jurisdictions broadly into line but in neither case does the relevant legislation affect the underlying common law principle prohibiting unqualified advocates. a student right of audience? implications of law students appearing in court 23 6 ibid at 587 7 [1986] 2 wlr 322 8 ibid at 326 9 [2002] nswca 230 10 [1971] p 33 11 ibid at 38 12 (1831) 2 b.& ad. 663 at 668; 109 er 1290 at 1292 13 [1999] 4 all er 751 14 [1991] 2 qb 260 15 apart from minor inroads such as that effected by the lay representatives (rights of audience) order 1992 16 s.43 while the courts have consistently maintained the right of audience principle, the policies put forward to justify it vary considerably (as is often the case in reasoning based on the public interest). one might reasonably assume that the paramount consideration should be the protection of the litigant from incompetent advocacy, and this is indeed one of the bases on which the principle is founded. but in tritonia17 the only consideration relied upon by the house of lords was the assistance to the court itself which trained advocates provide. one might also expect numerous references to the complexities of litigation, which cannot properly be handled by untrained advocates. but in collier v hicks18 itself lord tenterden cj said that it was to the benefit of the parties that they should not be represented at all, otherwise they might be put to “heavy and grievous expense” and that it was in the interests of justice, at least in summary proceedings, to hear only the parties themselves, “without that nicety of discussion, and subtlety of argument, which are likely to be introduced by persons more accustomed to legal questions”.19 some courts are concerned that an untrained advocate might “cause the litigant loss”,20 which suggests that the judges had forgotten that, in australia at least, a client has no right to sue an incompetent professional advocate for any loss caused by the latter’s negligence. in addition to a general concern for the competence of advocates, whether for the assistance of the court or in the interest of the litigant, the other consideration most referred to is the issue of “probity”, that is, that an admitted practitioner as an officer of the court owes clearly recognised duties to the court and to the administration of justice and in certain situations such duties take precedence over the client’s own interests. this policy is put most forcefully by donaldson mr in abse v smith21 and is worth quoting at length. “but quite apart from the public interest in ensuring that advocates appearing in the courts have the requisite standard of skill, there is another and even more important requirement......this is the requirement of absolute probity. the public interest requires that the courts shall be able to have absolute trust in the advocates who appear before them. the only interest and duty of the judge is to seek to do justice in accordance with the law. the interest of the parties is to seek a favourable decision and their duty is limited to complying with the rules of court, giving truthful testimony and refraining from taking positive steps to deceive the court. the interest and duty of the advocate is much more complex, because it involves divided loyalties. he wishes to promote his client’s interest and it is his duty to do so by all legitimate means. but he also has an interest in the proper administration of justice, to which his profession is dedicated, and he owes a duty to the court to assist in ensuring that this is achieved. the potential for conflict between these interests and duties is very considerable, yet the public interest in the administration of justice requires that they be resolved in accordance with established professional rules and conventions and that the judges shall be in a position to assume that they are being so resolved. there is thus an overriding public interest in the maintenance amongst 24 journal of clinical legal education july 2004 17 note 5 above 18 note 2 above 19 ibid at 668 20 per stein ja in damjanovic v maley note 9 above: “lay advocates are unqualified, unaccredited and uninsured” at para 79 21 note 7 above advocates not only of a general standard of probity, but of a high professional standard, involving a skilled appreciation of how conflicts of duty are to be resolved.”22 this statement of the advocate’s duty to the administration of justice, compelling as it is, seems, to australian readers at least, remarkably familiar from the decisions justifying the continuation of an advocate’s immunity from liability for negligence and there is some irony in the fact that the same arguments are used to justify both a monopoly of the right of audience and immunity from an obligation to take reasonable care in the exercise of that monopoly.23 further secondary arguments in support of the monopoly on the right of audience were collected by stein ja in damjanovic,24 such as the fact that a lay advocate is not subject to a disciplinary code, may not be liable to an order for costs, is likely to take longer in the conduct of proceedings and would not recognise a duty to the opponent. he concluded by citing mahoney ap in another new south wales court of appeal decision,25 where that judge formulated three guiding principles in the preservation of the restriction of the right of audience: “first, the duty owed by counsel to the court; secondly, the possibility of unqualified advocates interfering with the course of a proceeding and causing loss and delay; and thirdly, the public interest in the effective efficient and timeous disposal of litigation: “the administration of justice requires that full assistance be available to the court in determining the issues of fact and law which come before it. the isolation of issues and the presentation of the consideration (sic) which support one answer rather than another are things best done by a person experienced in such matters.”26 these arguments will be examined more closely in part iii of this article. given the courts’ unwavering support for the restriction of the right of audience to the profession, the question must now be asked: on what legal basis may law students (or those lay advocates who were the subject of the cases already discussed) seek to appear before the court? the answer lies in another familiar concept: the inherent jurisdiction of every court to regulate proceedings before it. as an element of this jurisdiction, every court has a discretion to permit any person to appear as advocate before it. this discretion was upheld by the privy council (on appeal from the supreme court of new south wales) in o’toole v scott27 and has been recognised in english cases such as abse v smith28 which canvassed a number of earlier english cases to the same effect. the privy council held that statutory provisions granting the usual right of audience to the profession did not abrogate the discretion so that, while members of the profession have a right to appear, this exists side by side with the court’s general discretion to permit other persons to appear. a student right of audience? implications of law students appearing in court 25 22 ibid at 326 23 abse v smith was decided in 1986 not long before the enactment of the courts and legal services act 1990 and donaldson mr went on to say that the best way to ensure the maintenance of high standards was to limit advocacy to a relatively small group of practitioners, ie the bar – at 327 24 note 19 above 25 scotts head developments pty. ltd v pallisar pty. ltd (unreported, court of appeal, 6 september 1994) 26 ibid at pp. 3–4 27 [1965] ac 939 28 note 7 above the position in australia, therefore, is that an unqualified advocate, such as a student, while having no right to appear, does have the right to seek the court’s exercise of its discretion in granting him or her leave to appear.29 although the position is now different in england in that the discretion has been abrogated by s.27(1) courts and legal services act 1990, it is proposed to examine the criteria on which the common law discretion will be exercised, because it is suggested that similar criteria should be applied by courts in granting a right of audience under s.27(2)(c) of the act. the australian cases indicate that there are two issues which arise when the court is considering whether or not to exercise its discretion and grant an unqualified advocate leave to appear. first, should the discretion be exercised liberally or only in exceptional cases? secondly, is it exercised differently according to whether the proceedings in question are in the lower courts or in a superior court such as a supreme court? with regard to the first issue, the privy council expressly considered the question. it concluded: “[the discretion] can be exercised either on general grounds common to many cases or on special grounds arising in a particular case. its exercise should not be confined to cases where there is a strict necessity; it should be regarded as proper for a magistrate to exercise the discretion in order to secure or promote convenience and expedition and efficiency in the administration of justice.”30 however subsequent australian cases have expressed the position more narrowly. in r v schagen31 the western australian court of criminal appeal permitted two students to represent an appellant who was deaf and “virtually incomprehensible” but made it plain that it was a rare and exceptional case. in galladin pty ltd v aimnorth pty ltd32 perry j of the south australian supreme court said the discretion must be carefully controlled. in damjanovic v maley33 stein ja said that the authorities suggest that higher courts should be very chary at giving leave and, on the facts of the case before him, found that the circumstances relied upon by the applicant for leave to appear were not “so exceptional or special”34 as to make it appropriate for the court to have granted leave to appear. in scotts head developments pty ltd v pallisar pty. ltd35 mahoney ap appeared to ignore the very nature of a discretion when he acknowledged that the court had a discretion but said that the court “has long adopted the general rule that it will not allow an appearance by a person who has not been admitted to practice before it.” (however none of the australian cases appear to have taken a position as extreme as that adopted by the court of appeal in abse v smith36 where the issue was whether a solicitor should have been permitted to appear to read a statement agreed between the parties in settlement of a defamation action. not only did the court of appeal refuse to countenance appearance by the solicitor; it also held that it was for the judges of the court collectively to decide whether or not to modify established practices.) 26 journal of clinical legal education july 2004 29 this is in marked contrast to the position in the united states where all 50 states have introduced “student practice rules” – see kuruc j w & brown r a “student practice rules in the united states” (1994) august the bar examiner 40 and the aba model student legal assistance rule 30 o’toole v scott note 26 above at 959 31 (1993) 65 a crim r 500 32 (1993) 60 sasr 145 33 note 9 above 34 ibid para 87 35 note 24 above 36 note 7 above it appears therefore that, at least in superior courts, the discretion will be exercised only rarely. furthermore some of the cases involve a complicating factor, that of a corporate party seeking to appear through an unqualified advocate, in breach of the established rule that corporations may conduct litigation only through a legal practitioner. it may be, therefore, that the corporate litigant carries a double burden in seeking to persuade the court to permit representation by a lay advocate. as to the second issue, whether the discretion will be exercised differently according to the court’s place in the hierarchy, o’toole v scott37 concerned a summary prosecution in the magistrates’ court (the lowest court in the australian hierarchy). all the other cases discussed related to applications for leave to appear in either the district court (the court between the magistrates’ court and the supreme court) or in supreme courts. it may be that the privy council in o’toole was willing to take a more relaxed view of the possibility of unqualified advocates appearing in the magistrates courts, particularly as the unqualified advocate in question was a police prosecutor. in contrast it is not surprising, given the nature and complexity of the supreme courts’ jurisdiction, if the judges are extremely reluctant to countenance lay advocacy. the examination of the cases on the circumstances in which a court will grant a lay advocate leave to appear discloses no consistent criteria to guide future applicants. it would seem that an unqualified advocate seeking leave to appear would be dependent entirely upon the circumstances of the individual case and the inclination of the presiding judge or magistrate. part ii the monash student appearance program it is in this context of ancient legal principle and judicial discretion that the monash university clinical legal education teachers developed the “student appearance program” which after ten years has become a routine part of the clinical students’ experience. this part of the article will outline the key elements in the program, the social and political context and the strategies adopted in persuading courts to accept the concept of students appearing regularly before them. the monash clinical program is based in two community legal centres. the students, in the final year of their law degree, work in the centre for a semester (five months) for credit for their degree. they are supervised by teaching staff who are qualified and experienced practitioners. clients come from the local community. the fundamental philosophy of the program is that students take frontline responsibility for the conduct of their clients’ matters. they take initial instructions, then discuss the problem with their supervisor before returning to the client with advice. if the matter is appropriate for the centre to take on, the student opens a file and carries out all the tasks required, whether it be research, writing to the opposing party, briefing counsel etc. all the students’ work is closely supervised: all letters and documents are checked by the supervisor before being typed and supervisors hold a weekly file review with each individual student to discuss the next steps to be taken, strategies to be adopted etc. among the most common types of matters handled by the centres are summary criminal prosecutions and simple family law matters. despite the existence of a public legal aid system these clients are frequently ineligible for aid. a student right of audience? implications of law students appearing in court 27 37 note 26 above the legal aid system in victoria is administered by a body formerly entitled the legal aid commission of victoria (now victoria legal aid) established under the victorian legal aid act 1978. the act provides two key criteria for the granting of legal aid: a means test and a “merit” test. the “merit” provision is suitably broad: if the provision of aid is “reasonable having regard to all relevant matters”: (s.24(1)). section 24(4) provides that all relevant matters include: “the nature and extent of any benefit that may accrue to the person, to the public or to any section of the public from the provision of the assistance or of any detriment that may be suffered by the person, by the public or by any section of the public if the assistance is not provided”; and in the case of court proceedings, “whether the proceeding is likely to terminate in a manner favourable to the person”. in order to implement these legislative criteria, the legal aid commission formulated a detailed means test and a set of priorities and guidelines under the merit test. although criminal matters are generally the first priority, within that category, for obvious reasons, priority is given to matters carrying the more serious penalties. generally, for summary criminal matters, aid will not be granted unless the applicant faces a real risk of imprisonment or fines totalling above a certain minimum. although no observer could challenge these priorities, within the context of continuing constraints in the legal aid budget the result is that numbers of legal centre clients facing summary criminal or traffic charges cannot afford counsel’s fee but are ineligible for legal aid. a detailed breakdown of the number of unrepresented defendants in the magistrates court is not available, nor does the legal aid body publish statistics of applications and their outcomes in other than broad general categories. but the legal aid commission of victoria statutory annual reports for the period 1989–1992 show a sharp increase in the percentage of applications refused, from 20.5% in 1989–90 to 26.4% in 1990–1991 to 29.3% for 1991–1992.38 in the area of family law, the second general area of priority for the legal aid commission, aid has never been available for divorce applications, which under the commonwealth family law act 1975 follow a simple procedure and can realistically be handled by an english-speaking applicant. however an applicant with language difficulties cannot be expected to present the application unassisted. by 1992 the family court was beginning to speak publicly of the need for improved legal aid. in his foreword to the court’s annual report of 1991–92 the chief justice wrote: “there are three major impediments to access to the court. the first of these is effective legal representation and this has been progressively diminished by the combined effects of the recession and a significant reduction in legal aid funds available in the area of family law.”39 (the legal aid situation in australia has worsened with the intervention of the conservative federal government elected in 1996. the federal government has always contributed more than 50% of total legal aid funds and the new government set about severely reducing its contribution. in 1997 the director of the uk legal action group visiting australia commented that legal aid funding in the uk amounted to a$60 per head of population, whereas in australia it amounted to a$15 per head.)40 28 journal of clinical legal education july 2004 38 legal aid commission of victoria, statutory annual reports, 1989–1990, 1990–1991, 1991–1992, education and information division legal aid commission of victoria melbourne. 39 family court of australia, annual report 1991–1992 australian government publishing service, canberra, at p.8 40 cited in (1997) november nsw law society journal at p.19 it was in this context that clinical teachers and students were seeing increasing numbers of clients in criminal and family matters who were not eligible for legal aid but who, on any reasonable view, were quite unable to represent themselves, because of their language or educational disadvantages. it was particularly frustrating for students who might have devoted a great deal of time and effort to preparing a client’s case, but felt that their work was almost wasted because of the lack of competent representation. we therefore decided to embark upon a campaign to enable students to provide that representation. our objectives were both the provision of better service to our clients and the expansion of our students’ educational experience. a previous attempt to have students permitted to represent their clients had failed. we approached the chief justice of the family court with a proposal that students be granted a limited right of audience in the local registry of the court, where the legal centres were well known to registry staff. unfortunately we failed to do our homework properly and although the chief justice personally favoured the idea, it met with “almost universal opposition”41 from the other members of the court, who took the view that an amendment to the relevant provision of the court rules would be required. had we done our research and prepared a full submission on the law and the existence of the o’toole v scott42 discretion, the result might have been different, because less than three years later we received a very positive response from the judge in charge of our region of the court. it is possible that the change in attitude was caused by a realisation of the impact of the steady increase in the number of unrepresented litigants, particularly in the local registry. (the registry in dandenong, in the outer south-east of melbourne, is generally regarded as having the highest percentage of unrepresented litigants – 40% – of any family court registry in australia. its catchment area includes high levels of non-english-speaking residents and socio-economic disadvantage.) having learnt our lesson from the first approach to the family court, we now did the research and prepared a far more detailed submission and a set of guidelines, setting out the criteria limiting the clients, cases and students to which the proposed “student appearance program” might apply. the key components of the guidelines were, and still are: ● students would appear only for clients who had no access to qualified representation (other than a legal aid duty lawyer); ● students would appear only in unopposed matters in the magistrates court and the family court; ● students’ appearances would be ‘supervised’ in court by a qualified practitioner. the guidelines have a number of underlying objectives. the restriction of student appearances to matters where the client has no access to qualified representation serves three purposes. we can say in all honesty that the client can hardly be worse off with representation by a well prepared and supervised student than if he or she had to appear unrepresented. the private profession can see that there is no risk of the program taking clients who would otherwise be paying their fees (personally or through legal aid); and there is an obvious benefit to courts increasingly burdened with unrepresented litigants. the restriction to unopposed matters in the magistrates court or family court enabled us to meet a student right of audience? implications of law students appearing in court 29 41 correspondence hon justice nicholson, chief justice, family court of australia, to the author, 13 june 1990 42 note 26 above the major categories of need among our legal centre clients – guilty pleas in summary criminal matters in the magistrates court and divorce applications in the family court where for language or other reasons the client could not reasonably be expected to present the application unaided. (the nature of our clientele is such that we get a significant number of relatively complex divorce applications: for example, where the parties married in afghanistan, fled to a refugee camp in pakistan, then separated somewhere between there and australia. the marriage certificate is lost and a new one cannot be obtained because the equivalent of the registry of births deaths and marriages in kabul has been bombed by one side or another. the client has not seen her husband for two years and, as refugees, there may not be any family members in australia on whom substituted service of the application may be effected. cases such as these provide a wonderful learning experience for the student and if he or she has been responsible for the preparation of all the documents necessary to support the application, the opportunity to present the application in court as the culmination of his or her work provides a remarkable sense of achievement.) cases in these categories are most likely to be ineligible for legal aid and therefore meet the “no other access to representation” criterion. furthermore, they are by their nature able to be prepared fully in advance – the possibility of ambush by an opposing party is minimal or non-existent and, as most legal centre supervisors are solicitors rather than barristers, we are thoroughly confident of our ability to prepare our students for these cases. the third critical element in the guidelines, that a student would be “supervised” in court by a qualified practitioner, provides the reassurance of someone who could step in and take over if something went wrong (although this has never been necessary). a final element which we regard as important is that, as teaching staff, we take responsibility for assessing whether an individual student is competent to appear. there is no expectation that every student enrolled in the clinical subject will have the opportunity to appear. having prepared the explanation of the law and the guidelines, we laid the groundwork in other ways before approaching the courts. we decided it would be important to have the support of, or at least no active opposition from, the profession. the law institute (the equivalent of the law society) was remarkably positive, its council voting unanimously to support our proposal.43 the victorian bar council referred the proposal to several sub-committees, wrote several expositions of the relevant legal issues and then concluded that it was a matter for the courts.44 at the same time, we asked those of our students who had accompanied a client to court as a mckenzie friend, or represented a client in a tribunal, to write brief accounts of their experience. the purpose was to attach these accounts to our submission to the magistrates court, to illustrate in concrete terms the types of cases in which we proposed students should be allowed to appear and to provide preliminary evidence that our students were indeed competent in “lower level matters”. (several students who had gone to court as a mckenzie friend were asked by the magistrate to speak on behalf of the client and had acquitted themselves well, despite the fact that they had not expected to represent the client in this way and had therefore not prepared for it.) the proposal was finally ready to be submitted to the chief magistrate. (after our false start with the family court we decided to begin this time with the magistrates court.) we included 30 journal of clinical legal education july 2004 43 council of the law institute of victoria, 21 november 1991 44 correspondence a j kirkham, qc, chairman, victorian bar council, to the author, 8 and 14 may 1992 information on the clinical program and described the student appearance proposal as ‘the logical extension of our existing course’. the proposal was considered by the council of magistrates and received the support of the ‘overwhelming majority’.45 a very small minority expressed strong disagreement and of course the chief magistrate, who personally supported it, could not direct her colleagues in the exercise of their discretion. we then submitted the proposal to the judge administrator of our region of the family court. within a month the chief justice and southern region judges gave their support and the program began at the beginning of 1993. the process once the clinic supervisor has identified a case as meeting the guidelines and the student wants to represent the client, the program is explained to the client, who of course is free to decide either to represent him or herself or to rely on a duty lawyer. if the client wants the student to represent him or her, s/he is asked to sign a form of consent. this includes an acknowledgement that the client is aware that the student is not a qualified lawyer. this form can be produced to the court if required and is placed on the client’s file after the hearing. the student is then responsible for preparing the matter fully. most teachers require their students to prepare a complete “script”, which the teacher then checks, but the student is of course told that on no account are they to read their script in court. the objective is that the student knows the facts, the law and the procedure so thoroughly that they can answer any question put to them, preferably without reference to their notes. (in this respect it is easy to understand that a student’s performance may be much more competent than a junior barrister who has received the brief only the night before the hearing.) in the early years of the program, clinic teachers tried to act as the in-court supervisor of their students wherever possible. as the program became more routine and we became more confident of the courts’ attitude, we have tended to arrange for other practitioners, barristers or legal aid lawyers, to act as in court supervisors. on the day of the hearing when the student checks in with the court office, s/he informs the court co-ordinator that it is a student appearance and this is noted on the court file. this means that when the case is called the magistrate or registrar can see that a student is representing the client. all the student has to do is formally to seek leave to appear on behalf of the relevant party. from then on the case proceeds as normal. assessment initially we had not intended that appearances would be assessable. however, it quickly became apparent that the students put so much work into their preparation, in a subject which itself required significantly more work than a conventional academic subject, that fairness required that they be allowed to count appearances as part of their assessment. we therefore introduced a regime that allowed students to choose, for 20% of the total mark in the clinical subject, either an assignment (which had previously been mandatory) or two a student right of audience? implications of law students appearing in court 31 45 correspondence ms sally brown, chief magistrate, magistrates court of victoria, to the author, 21 january 1993 appearances and a 1000 word report. the elements of assessment for the appearances themselves are: pre-hearing preparation; adherence to rules of court etiquette; content of appearance; and after-court explanation to the client. for the report, the student is required to compare the two appearances in respect of issues such as preparation, supervisor’s role, how the clients felt about being represented by a student; ethical issues and what they learnt from the experience. the introduction of assessment into the program added an additional practical factor – the in-court supervisor would be asked to complete the assessment form.46 however as the majority of supervisors are more than willing to give students detailed feedback this has not proved to be a difficulty. secondly when a student has done one appearance and therefore opted for this form of assessment there is some pressure on the clinic supervisor to “find” a second appearance for that student. the teacher’s responsibility to balance the interests of clients and students is discussed more fully below. magistrates’ attitude given that a small number of magistrates had made it known in advance that they opposed the program we have experienced very few difficulties. a record was kept of every appearance in the first few years and when an individual magistrate refused leave to a student, all teachers tried in subsequent cases to ensure that a case was not heard before that magistrate. some magistrates who refused leave in the first case that came before them eventually changed their mind and granted leave in later cases without demur. evaluating the students’ performance in the ten years since the program began students have represented more than 1,000 clients who would otherwise have gone unrepresented. no systematic evaluation of the quality of the students’ performance has been carried out but the marks awarded by practitioners who act as in-court supervisors indicate a high level of competence. in one semester the average mark given by external supervisors was 87.5%. in a research project recently completed by the author and judith dickson of la trobe university,47 magistrates who had presided over, and practitioners who had supervised, at least two appearances were interviewed about their views of the program. the magistrates were clearly very positive. they supported the program because of its educational value to students; they thought that the students’ performance was generally as good as that of junior practitioners and that they assisted the court. similarly the practitioners interviewed considered that the students they had seen were often as good as and sometimes better than junior practitioners, mainly because the students had obviously prepared so thoroughly; and one said the students were of a very high standard. the practitioners all agreed that the representation provided by the students was much more efficient in the court process than an unrepresented defendant. 32 journal of clinical legal education july 2004 46 on one occasion, when the author was in-court supervisor for one of her students, when the student had finished her plea, the magistrate looked across and said “well mrs campbell, you would have to give her 10 out of 10 for that”. the thought of giving the magistrates the assessment form to complete flashed briefly through our minds. 47 dickson, j and campbell, s, student advocacy in australian courts: recommendations for a model program, report to the commonwealth attorneygeneral’s department, september 2003. it is hoped to publish an article based on this project in the near future. clients’ views of the service they received from the students have not been recorded other than anecdotally. it is probable that most clients, who had become used to dealing with a student during the conduct of their matter in the legal centre, took it for granted when the same student represented them. clients were therefore not particularly concerned by the legal significance of having a student represent them, even though they had had this aspect brought to their attention when the consent form was explained to them. the role of the clinic supervisor the clinic supervisors play a dual role: they are teachers and practitioners. in all the work of the legal centres in which students are involved, they have a dual responsibility – to protect the client’s interest in receiving competent legal service and the student’s interest in expanding their educational experience. the supervisor must constantly weigh and balance the two interests. this requires a careful assessment of the legal tasks which must be carried out and the timeframe within which this must be done, in order to advance the client’s position; and an equally careful assessment of the competence of the individual student and their capacity to meet the relevant timeframe. the student will learn more if they are given the responsibility and the opportunity to perform the work required; but the client will suffer if the student cannot competently complete it within time. into this mix the supervisor must add their own availability – to be accessible to advise the student and to check their work. the same process applies within the specific context of the student appearance program. when a client comes into the legal centre with, for example, a summary criminal matter, the supervisor must assess a number of interlocking factors: – should the client plead guilty or not guilty? if the plea is not guilty, the matter will not be within the program guidelines; – might the client be eligible for legal aid? if so, again the case is outside the guidelines; – is there time to make an application for legal aid? – even if the appropriate plea is guilty, is the case appropriate for student representation, bearing in mind the seriousness of the charge, the client’s prior history etc? these factors might on reflection strengthen an application for legal aid. – if the case is appropriate for student representation, is the individual student who has interviewed the client and taken on the conduct of the matter competent to do it? in this complex formula the supervisor must be careful to put aside the consideration, mentioned earlier, that the student “needs a second appearance”. the supervisor identifies and articulates these factors in discussion with the student. in so doing the supervisor is modelling for the student the careful professional attitude of putting the client’s interest first and acknowledging the ethical obligations inherent in the lawyer’s role. the more substantial aspect of the supervisor’s role in the student appearance program relates to the student’s preparation for the appearance. with every appearance, the reputation of the program is at stake and the supervisor must provide the student with advice, support and the a student right of audience? implications of law students appearing in court 33 appropriate sense of responsibility for the client; while not burdening him or her with the added responsibility of the fate of the whole program. from the moment that the question of student representation is discussed throughout the preparation of the appearance, the supervisor helps the student to identify the ethical issues involved: the duty to put the client’s case, the duty not to mislead the court. what can be said on behalf of the client? what must not be said? part iii can student appearances meet the policies underlying the limited right of audience? can a student appearance program, operating within the guidelines discussed earlier, meet the justifications put forward by the courts for the restriction of the right of audience to qualified practitioners? there is no doubt that, as long as the emphasis is on the formal status of admitted practitioners, students do not have that status. but can they meet the substance of the courts’ requirements? it is suggested that, provided students’ appearances are confined to limited categories of cases and clinic supervisors continue to take full responsibility for their thorough preparation, they do in fact meet the major requirements. the critical issue is that ex hypothesi the alternative to student representation is litigants in person. there can be no doubt that a well prepared student is far more likely, in the words of mahoney ap, to provide “full assistance to the court...in the isolation of issues and the presentation of considerations which support one answer rather than another.”48 whether in a guilty plea or a family law application the student presents the facts relevantly and concisely, identifies the legal issues and articulates the outcomes sought. it is virtually impossible for the overwhelming majority of litigants in person to do this. secondly the clinic supervisors ensure that students are extremely conscious of their duty to the court and considerable care is taken in the preparation of the appearance to ensure that this duty is fulfilled. although the litigant in person has a duty not to mislead the court49 it is asking a great deal of the average person that they resist the temptation to cross the fine line between putting the truth as favourably as possible and exaggerating or embellishing it. thirdly, the role of any advocate, qualified or not, includes controlling the anxious or temperamental litigant who, in the absence of the sense that their story is being told and heard, might well disrupt the proceedings by outbursts or abuse. the one consideration underlying the restricted right of audience which student appearances cannot meet is the availability of disciplinary sanctions over practitioners who fail to meet their ethical obligations. the very fact that students are not admitted to practice makes this self-evident (although presumably if a student’s conduct were inappropriate in the extreme they could be held in contempt of court). it is to meet this issue that the research project referred to above, in proposing model legislation governing student advocacy, recommends that a provision be included imposing “the same duties 34 journal of clinical legal education july 2004 48 scotts head developments pty. ltd v pallisar, note 24 above 49 vernon v bosley (no.2) [1997] 1 all er 614 per stuartsmith lj at p.629 and obligations” on student advocates as if they were qualified practitioners. the final issue to be considered is whether a student could “cause the litigant loss” and this leads to a discussion of whether a student advocate would be liable to a client in negligence. part iv a student immunity? the applicable authority in australia on the advocate’s immunity from liability for negligent incourt conduct is the decision of the high court of australia in giannarelli v wraith50 where by a 4/3 majority the court upheld the immunity, following the same reasoning as rondel v worsley51 and saif ali v sydney mitchell & co.52 in 199953 the high court was expressly invited to reconsider its decision in giannarelli v wraith.54 in a decision handed down seven months before that of the house of lords in arthur j.s. hall & co. ltd. v simons,55 effectively abolishing the immunity, the court rejected the invitation. the practitioners who were defendants to the claims in this case were held not to have been negligent and the court was therefore able to put aside the issue of advocates’ immunity on the basis that it did not need to be considered. however there were indications from three judges that on “another day”56 the issue might be reconsidered. gaudron j (since retired) said that had the question of “immunity” arisen, she would have granted leave to re-open giannarelli because proximity – “more precisely the nature of the relationship mandated by that notion – may exclude the existence of a duty of care on the part of legal practitioners with respect to work in court.”57 gummow j acknowledged that a number of issues arise with respect to the immunity.58 kirby j devoted a significant part of his judgment to the policy issues relevant to the immunity and said that the binding authority of giannarelli is confined to immunity in respect of in-court conduct.59 it therefore seems likely that the issue of the immunity will be re-opened by the high court in a case where it cannot be avoided. however, as long as giannarelli v wraith remains the applicable law in australia, it is necessary to analyse the reasoning in that decision in an attempt to answer the question of whether students as advocates might also be immune from liability for any negligence in the conduct of the matter in court. the plaintiffs in giannarelli were three men who had been convicted of perjury as a result of evidence they gave to a royal commission. the negligence complained of against their counsel was that the latter failed to raise in the plaintiffs’ defence of the perjury proceedings provisions of the commonwealth royal commissions act 1902 which rendered evidence given to a royal commission inadmissible in criminal proceedings. there could perhaps be no clearer example of professional negligence. a student right of audience? implications of law students appearing in court 35 50 (1987–1988) 165 clr 543 51 [1969] 1 ac 191 52 [1980] ac 198 53 boland v yates property corporation pty. ltd and another 167 alr 575 54 note 49 above 55 [2002] 1 ac 665 56 boland note 52 above at p.604 para 116 57 ibid p.602 para 107 58 ibid p.603–4 paras 113–114 59 ibid p. 618 para 150 the leading judgment in the high court is that of mason cj. after referring to rondel v worsley’s60 rejection of the argument that a barrister’s inability to sue for his fees could support his immunity in negligence, the chief justice went on to support the maintenance of the immunity on two considerations of public policy. the first is counsel’s duty to the court, which overrides the duty to the client but which might be threatened by counsel’s concern to avoid the risk of a negligence action by the client. the second consideration is the “relitigation” argument, that an action for negligence would constitute a collateral attack on the decision in the principal case.61 leaving aside the merits of these arguments, which have been dealt with persuasively by the house of lords, the question becomes: can such considerations of public policy apply equally to unqualified advocates appearing by leave of the court? it is clear that the “relitigation” argument can logically apply with equal force to cases conducted by a lay advocate and those conducted by an admitted practitioner, because it is an argument based not on the status of the advocate or even on his or her role, but one based on the efficient operation of the system, the administration of justice in the abstract.62 as to the first ground of public policy, that the risk of being sued for negligence by the client might influence the advocate’s conduct of the case at the expense of his or her duty to exercise independent judgment in the interest of the court, prima facie it might be concluded that the immunity could not apply to unqualified advocates simply because they do not owe a duty to the court as qualified advocates do. the justification for the immunity would therefore not apply to unqualified advocates. and it is probably no answer to this argument to say that, in seeking leave to appear, the unqualified advocate voluntarily assumes the duty imposed upon qualified advocates by virtue of their status as officers of the court. however analysis of this justification for the immunity at a deeper level produces another issue. is the immunity in fact based upon the advocate’s status or upon the function he or she fulfils in the conduct of litigation? if it is based upon the advocate’s status as a person admitted to a regulated profession who is subject to prescribed disciplinary sanctions for unacceptable conduct, then there can be no basis for extending the immunity to unqualified advocates. alternatively, if the immunity is justified on the basis of the function the advocate performs within the system of justice, then there may be no reason why any person carrying out this function with the permission of the court should not be covered by the immunity. a close analysis of the majority judgments in giannarelli v wraith suggests that this may well be the case. the judgments refer throughout to the advocate’s role in assisting the administration of justice, to counsel exercising an independent judgment “in the interests of the court”.63 for example, mason cj said: “it follows that the exposure of counsel to liability in negligence for breach of a common law duty of care would create a real risk of adverse consequences for the efficient administration of justice. litigation would tend to become more lengthy, more complex and more costly.”64 36 journal of clinical legal education july 2004 60 note 50 above 61 giannarelli v wraith note 49 above at p.555 62 it is also an argument which ignores the fact that the capacity of a disappointed litigant to sue his or her solicitor for negligence in the preparation of the case has exactly the same consequences of relitigating, ‘tarnishing’ the earlier decision and bringing the administration of justice into disrepute – per wilson j at 574. 63 giannarelli v wraith note 49 above at p.557 64 id brennan j said: “if the immunity of counsel were abrogated, the assistance which courts obtain from the advocacy of an independent profession would be imperilled.”65 the point is reinforced by the court’s acceptance that the immunity extends to a solicitor/advocate. as wilson j said, “the critical factors are the function (the advocate) is performing at the material time and the impact which non-recognition of immunity might have upon the administration of justice. it is the function of advocacy that attracts the immunity, (emphasis added) and, accordingly, it matters little whether the advocate is admitted to practice as a solicitor or as a barrister or as both.”66 if it is accepted that the immunity exists to protect the advocate’s role in the administration of justice, then it is at least arguable that an unqualified advocate should also benefit from the immunity, at least where the litigant would otherwise be unrepresented. the unqualified advocate is given leave to appear precisely because the courts accept that they are assisted by the appearance of an advocate who is able to present the litigant’s case clearly, concisely and honestly. in theory, therefore, the monash students might be protected by the immunity. on the other hand, the argument that the advocate is entitled to immunity because of the role he or she plays in assisting the court and therefore advancing the administration of justice would not necessarily apply to all unqualified advocates, such as those who feature in cases such as paragon finance plc v noueiri67 and r v leicester city justices ex p barrow.68 but it is difficult to see how the courts could draw a distinction between the unqualified advocate operating within a program which ensures careful supervision and preparation, and those who seek to appear without such endorsement. it would not be acceptable to apply the immunity on a case by case basis. furthermore, given the criticism which the immunity attracts, acknowledged by the house of lords69 and by the minority judges in giannarelli v wraith,70 it is unlikely in the extreme that the high court would extend the immunity, no matter how strictly logical the argument. consequently the monash program has never relied upon the possibility of its students being protected by the immunity. instead we rely upon more pragmatic considerations: the fact that, in a student right of audience? implications of law students appearing in court 37 65 ibid at p.579 66 ibid at p. 577 67 [2001] 1 wlr 2357 per brooke lj at 2363, quoting judge lj in another case involving the same lay advocate: ‘the courts from the master to the house of lords have been inundated with a series of applications by mr alexander which have ultimately proved to be illfounded. time and again the exercise has been pointless and wasteful of limited court resources and from time to time has involved the defendants in additional expense.” 68 note 13 above, where watkins lj said (at p.271): “increasingly justices are being placed in the intolerable position of being faced with people claiming to be friends of defendants who are either politically motivated or activists opposing some authority or other whose function it is to carry out the wishes of parliament.” 69 arthur j s hall & co. ltd v simons note 54 above per lord steyn at p.678 70 note 49 above, per deane j : “i do not consider that the considerations of public policy which are expounded in rondel v worsley and in the majority judgments in the present case outweigh or even balance the injustice and consequent public detriment involved in depriving a person, who is caught up in litigation and engages the professional services of a legal practitioner, of all redress under the common law for ‘in court’ negligence, however gross and callous in its nature or devastating in its consequences” at p.588 the categories of cases in which students appear, it is highly unlikely that a client would suffer any provable “loss” which could be attributed to a student’s conduct; and the assumption that a client who wished to sue would be advised to sue either the in-court supervisor, or the clinic supervisor and the university, all of whom are covered by professional indemnity insurance. but ultimately we rely upon careful selection of cases and students and meticulous preparation of the content of the appearance. conclusion in an ideal system every litigant would be represented by qualified and competent counsel. but as long as the public legal aid system does not fulfil this ideal, law students can play a small but important role in filling the gap. if a system is established which ensures a certain minimum level of competence the courts as well as the litigants will benefit and the students’ education will be enriched. legislative provision would regularise the concept, define the parameters within which students could appear and establish a minimum threshold of ethical responsibility in the interests of the litigant and the administration of justice. 38 journal of clinical legal education july 2004 reviewed article: clinic, the university and society reforming the vietnamese legal education system: possibilities and perspective ai nhan ho1 hue university school of law, vietnam introduction this paper discusses the demand and various possibilities for the reform of vietnamese legal education. a particular emphasis will be placed on clinical legal education (cle) as a potential option for this reform. vietnamese legal education is a relatively new and underdeveloped system. although as much as ten thousand law graduates are produced every year,2 in most cases, they have to be re-trained or given further training before they can start to work.3 this situation mainly results from a legal education system over-emphasizing the teaching of legal doctrine, rules and basic codes and lacking professional training. additionally, while the disconnection between legal education and the profession is a challenge for vietnamese law schools to design a suitable curriculum, law schools’ lack of autonomy also contributes to this problem. due to limited self1 lecturer of law hue university school of law, vietnam; phd candidate – monash university faculty of law, australia. 2 see, e.g., huy quang tran, 'globalization and its challenges to vietnamese legal education' (paper presented at the legal seducation in the context of globalization, hanoi vietnam, at 11/2014), 9. 3 see, e.g., mark sidel and nghia duy pham, reforming and strengthening legal education in vietnam, undp vietnam (2010), 7. ( ijcle vol 23 no 2 ) ( 48 ) determination, vietnamese law schools cannot design their curricula in alignment with the legal profession’s requirements. further, law graduates’ lack of capacity to think independently, creatively and critically still remains as a long-standing challenge. there are a few reasons for this situation, notably the one-way-communication education style, the theoretical legal education system, and the relative youth law students in vietnam. finally, due to the lack of training in legal ethics and professional responsibility, most vietnamese law graduates are not practice-ready. this situation is a result of the two-stage approach, in which general education is delivered by law schools, whereas professional training, including legal ethics and professional responsibility, is the judicial academy’s business. accordingly, the paper begins with a discussion on the demand for reforming vietnamese legal education. there is a growing dissatisfaction among the profession, public agencies and private companies in vietnam with the poor quality of the current legal education system. the need to reform legal education, therefore, is widely accepted by all stakeholders law students and teachers, lawyers, governments, public agencies and international donors. this reform is regarded as an essential condition to foster a rule-of-law4 society, provide legal human resources for national social-economic development, and strengthen the legal profession in 4 in one sense, ‘rule of law’ can be defined as system that enables a weaker party to be able to invoke a process that requires a more powerful party to obey a set of predetermined and knowable rules. to some extent, ‘rule of law’ involves controlling governmental officials which means that people in the society are able to challenge the exercise of authority (or the failure to exercise authority) to a decision-maker who is empowered to review the behaviour and overrule it if it is inconsistent with announced rules or procedures. see, e.g., elliott milstein, ‘experiential education and the rule of law: teaching values through clinical education in china’ (2009) 22 (1) global business and development law journal 55, 56. vietnam. the paper then examines various possibilities for legal education reform, based on international experience and the context of vietnam. building graduate legal education programs, reforming curriculum and teaching methodologies and adopting cle are seen as potential options. the author, however, argues that cle is the most promising and effective means that vietnam should consider for legal education reform. finally, the paper turns to the potential benefits of cle to legal education. in particular, cle is a promising strategy for vietnam to address various challenges facing the legal education system. these are also reasons why cle appears to be the most appropriate and effective option in this reform. the demand for the reform of the vietnamese legal education system in vietnam, legal education plays a significant role in national social-economic development. as sidel and pham5 have pointed out, legal education is a strategic area for development assistance and is significant for further promotion of a rule-oflaw society in vietnam. from the judiciary system perspective, undp maintain: “education in law schools is the fundamental underpinning of the future human resources for the entire legal and judicial system, whether it be judges, government lawyers, private lawyers or legal advisers in business and civil society in vietnam”.6 5 sidel and pham, above n 3, 1. 6 see undp vietnam, 2008, terms of reference, national consultant for undp resource paper on law clinics, at <http://www.vn.undp.org/> at 5 november 2009; opinions about the need to reform vietnamese legal education were found in vietnamese legal education, however, is seen as an ineffective system failing to prepare students to be practice-ready.7 the urgent need for reform has consequently been widely recognized by national government, relevant agencies, legal scholars and international institutions. at a national level, resolution 14/2005/nq-cp on ‘substantial and comprehensive renewal of vietnam’s tertiary education in the 2006-2020 period’, promulgated by the central government in 2005 stated: “...higher education in vietnam remains unstable, unsystematic and insubstantial, failing to satisfy the requirements of national industrialization, modernization and international integration...” “...there are weaknesses and inadequacies in management mechanisms, systematic structures, disciplinary structures, the network of tertiary education institutions, training processes, teaching and learning methods, lecturers and educational administrators, the efficiency of examination resources and cheating in examinations, the grant of diplomas and other educational activities, and that all need to be addressed soon.” “...that national tertiary education should be renewed in a vigorous, substantial and comprehensive manner”.8 the interviews conducted with vietnamese law school leaders and managers, law teachers, law students, and practicing lawyers. the interview was a part of the author’s phd empirical research in vietnam in 2014 (hereinafter referred to as the 2014 research interviews). 7 see, e.g., sidel and pham, above n 3, 1-25; lien thi bich bui, 'legal education and legal profession in contemporary vietnam: tradition and modification' in john gillespie and albert chen (eds), legal reforms in china and vietnam: a comparison of asian communist regimes (routledge, 2010), 299 – 312. 8 see resolution 14/2005/nq-cp, by vietnamese central government on 2 november, 2005 on ‘substantial and comprehensive renewal of vietnam’s tertiary education in the 2006-2020 period’, at <http://www.moj.gov.vn/vbpq/lists/vn%20bn%20php%20lut/view_detail.aspx?itemid=17258> at 1 april 2015. in legal education, resolution 48/nq-tw on ‘the strategy for the development and improvement of vietnam’s legal system to the year 2010 and directions for the period up to 2020’, issued in 2005 by the central committee of vietnamese communist party, called for: “…ensuring the quantity and quality of human resources officials and civil servants who work on legal sector by renewing state management of the training of legal officials; building hanoi law university and ho chi minh city law university to become two key legal education institutions; frequently training and updating legal knowledge for officials responsible for state management and administration, particularly the legal staff of ministries and national agencies; renewing the training of judicial sector positions to meet the requirements and demand from the practice and improving the rotation of judicial sector positions; emphasizing professional ethics education for judicial sector positions; and upgrading technical infrastructure and modernizing teaching equipment in legal education institutions and training institutions for judicial sector positions”.9 likewise, resolution 49/nq-tw on ‘the strategy of judicial reform to the year 2020’, issued in 2006 by the central committee of vietnamese communist party, contains a similar vision about vietnamese legal education: 9 see resolution 48/nq-tw issued on 24 may of 2005 by the vietnamese central committee communist party on ‘the strategy for the development and improvement of vietnam’s legal system to the year 2010 and directions for the period up to 2020’, at http://thuvienphapluat.vn/archive/nghi-quyet/nghi-quyet-48-nq-tw-chien-luoc-xay-dung-va-hoan-thien-he-thong-phapluat-viet-nam-den-nam-2010-dinh-huong-den-nam-2020-vb54373t13.aspx> at 1 may 2015. “…further renewing the curricula and teaching methodology of higher legal education for training officials as a source of judicial sector positions and agencies; training judicial sector officials and judicial sector bodies toward upto-date political, legal, economic, social knowledge; providing them with updated political, legal, economic and social information and knowledge, so that they can have higher professional skills and practical knowledge, quality, pure ethics, and courageously fight for justice, and defend socialist legality; building hanoi law university and ho chi minh city law university to become two key legal education institutions; building the judicial academy to become a major centre for training judicial sector officials…”10 the demand for legal education reform is obvious in vietnam. this can be seen from three perspectives: the building of a rule-of-law society, the provision of legally qualified human resources for national social-economic development, and the need to strengthen the legal profession capacity. first, building a society governed by law has been an important priority of the vietnamese central government – led by the vietnamese communist party. a ruleof-law society is seen as a condition for strengthening social justice and improving democracy. in that process, legal education plays a significant role in training and providing legally-qualified human resources. legal education reform, therefore, will 10 see resolution 49/nq-tw issued on 2 june of 2006 by the vietnamese central committee communist party on ‘the strategy of judicial reform to the year 2020’, at <http://www.moj.gov.vn/ct/thongtinchienluoc/lists/vanbanthongtin/view_detail.aspx?itemid=12&> at 1 may 2015. increase the likelihood to have more well-qualified lawyers, judges, procurators11, and the like. these people are important actors in making a rule-of-law society possible in vietnam. additionally, the reform of vietnamese legal education is required in order to bridge the ‘gaps’ between legal education and the legal profession. the disconnection between legal education and the profession is widely recognized as a long-standing challenge in vietnam that makes law graduates not practice-ready.12 this problem is also identified in resolution 48/nq-tw: “the training and improving legallyqualified officials and conducting legal research projects have not yet caught up with the demands of reality”.13 the reform, therefore, is needed to assist vietnam in connecting legal education with practice. this in turn helps produce generations of highly-qualified law graduates to take on various positions in the national socialeconomic development and international integration. further, reforming legal education will potentially help vietnam produce generations of lawyers having not only professional knowledge but also the ability to think independently, creatively and critically. importantly, the reform will help train vietnamese lawyers who are ethically and professionally matured and willing to stand up for social justice. moreover, legal education reform may assist vietnam in producing ‘global lawyers’. as described by wenzler and kwietniewska, ‘global lawyers’ are legal practitioners knowledgeable in not only law of a country but also 11 to some extent, ‘procurators’ are similar to ‘prosecutors’ in other countries. vietnam has been using this name following the experience of the former soviet union. 12 bui, above n 7, 299. 13 vietnamese communist party, above n 9. foreign law and international law.14 a global lawyer can also effectively handle transnational and international legal matters and efficiently address the complexity of legal profession created by the globalization. obviously, these generations of global lawyers will be an important actor to strengthen the vietnamese legal profession capacity. in summary, as is the case of many countries around the world,15 vietnamese legal education has failed in efficiently preparing students for the profession. the demand for reform has consequently been recognized and agreed among various stakeholders. vietnam is not unique to this issue as legal education reform has been an urgent need in many other countries. the next part of the paper will discuss this issue further. possibilities for the reform of vietnamese legal education i) moving to graduate-level legal education? one possibility for reforming vietnamese legal education would be adopting a graduate-level legal education. in fact, vietnamese law schools have already offered graduate-level legal education – the ‘second-degree’. the second-degree is designed as a 2.5-year program delivered in five semesters to those holding a bachelor degree. this form of training has been an effort by law schools to diversify legal education in 14 see hariolf wenzler and kasia kwietniewska, 'educating the global lawyer: the german experience' (2012) 61 journal of legal education 462, 462-466. 15 see, e.g., roy stuckey, et al., ‘best practices for legal education: a vision and roadmap (2007) 1-2; see also william m. sullivan, et al., educating lawyers: preparation for the profession of law (carnegie foundation, 2007), 4. vietnam. it has created more study options available for the learners. however, unlike in japan16 and south korea17 where a new law school system was established, vietnamese law schools have modified their existing bachelor degree curricula to fit with 2.5-year time frame of the second-degree program. this may be one of the reasons why the second-degree has not been seen as an effective reform of legal education in vietnam. can vietnam follow japan, south korea or other countries18 in adopting a jd degree as graduate legal education? yes, it can. but vietnam needs first to look at experience and lessons from these countries. in japan, after almost 10 years since the establishment of new law schools, the legal education system has not been much improved. as shigenori has pointed out: “…the japanese legal education system has some serious drawbacks and further drastic changes are needed to ensure the system’s long term success.”19 similarly, in the view of maxeiner and yamanaka, there are many pedagogical and practical challenges facing the new japanese law schools and further needs to be done.20 some other people even regard the 2004-reform in japan as a ‘failure’. steele and petridis, 16 see, e.g., james r. maxeiner and keiichi yamanaka, 'the new japanese law schools: putting the professional into legal education' (2004) 13 pacific rim law and policy journal 303, 303-313 (identifying that in 2004, sixty law schools were established in japan, following the united states experience, to deliver legal education at graduate level. japan now has two parallel systems: undergraduate legal education delivered by faculties of law and graduate law degree provided by law schools. 17 see, e.g., rosa kim, 'the 'americanization' of legal education in south korea: challenges and opportunities' (2012) 12-15 brooklyn journal of international law, forthcoming; suffolk university law school research paper 1, 15-17 (identifying that in 2007, south korea established twenty five law schools to deliver three-year graduate legal education. with this reform, south korea has two systems: undergraduate legal education provided by ‘old’ law colleges or departments and graduate legal education delivered by these new law schools. 18 australia and china are another two examples of countries adopting a graduate-level legal education. see, e.g., donna cooper, et al., 'the emergence of jd in the australian legal education marketplace and its impact on academic standards' (2011) 21 legal education review 23; matthew s. erie, 'legal education reform in china through u.s.-inspired transplants' (2009) 59 journal of legal education 60. 19 see matsui shigenori, 'turbulence ahead: the future of law schools in japan' (2012) 62 journal of legal education 3, 3. 20 maxeiner and yamanaka, above n 16, 315. for example, argue that the reform has failed to bring about a meaningful change to the bar examination and continue to create challenges in preparing students for an internationalized legal market.21 many years since the reform, japanese legal education is still a ‘messy’ system.22 the fact that the national philosophy of legal education is dictated by the national bar examination has made it worse by presenting the biggest obstacle to the continued reform of the japanese legal education system.23 similar to japan, south korea introduced three-year graduate legal education in 2007 following the united states jd model. however, various challenges resulting from the reform such as economics, culture, and pedagogies24 have been identified. from the perspective of economics, for example, kim believes there is an increased number of legal job seekers and tension between students graduating from the ‘old’ system and those from the ‘new’ one.25 in fact, a common belief in south korea has been that law students studying at the new law schools have an ‘easier’ route to become a qualified lawyer and this creates an ‘unfair competition’ for legal jobs.26 additionally, the difference between two legal systems is identified as another challenge for south korea in adopting and maintaining the united states jd model. while south korean civil-law legal education traditionally emphasizes the teaching of a greater degree of substantive law, professional practice training is more on a 21 see stacey steele and anesti petridis, 'japanese legal education reform: a lost opportunity to end the culture of the national bar examination and internationalize curricula?' in william van caenegem and mary hiscock (eds), the internationalization of legal education (cheltenham : edward elgar pub. ltd., 2012), 92. 22 ibid, 118. 23 ibid, 92. 24 kim, above n 17, 21-30. 25 ibid, 23. 26 ibid. focus in the united states system.27 further, south korean law teachers mainly employ the lecture as teaching methodology whereas in the common-law system of the united states, teaching pedagogies are diverse.28 this difference in legal education focus between the two systems has in turn created barriers for the jd program to be successful and take root in south korea. moreover, the problem also remains with the delivery of professional training at the south korean new law schools system. the new generation of law schools in south korea is missioned to provide students with professional knowledge and skills. law teachers in south korea, however, are believed not to have enough practical skills and knowledge to teach students. accordingly, hiring practicing lawyers to teach at these new law schools is an alternative but another problem is that they may not have necessary teaching skills.29 among common law countries, australia is also experiencing challenges with the jd degree. as cooper et al., have pointed out, not all the jd courses are equal because some of them, as graduate courses, have the same learning outcomes as the llb courses.30 in addition, the introduction of the jd degree in australia was partly a response to the demand for more professional skills training. the design of the jd curriculum, therefore, includes a significant component of professional training. consequently, it is argued that some australian universities might struggle to 27 ibid, 27-28. 28 ibid. 29 see young-cheol k. jeong, 'korean legal education for the age of professionalism: suggestions for more concerted curricula' (2010) 5 east asia law review 155, 191, cited in kim, above n 17, 29. 30 cooper, et al., above n 18, 37. provide funding for the operation of these jd courses.31 to put it another way, offering professional skills training courses will cost law schools more because more resources will be allocated for organizing students’ practical learning activities. further, cooper et al., also suggest that the jd degree may increase the social inequality in education. the reason is that some law schools, due to financial concerns, may replace the llb degree by the more-expensive jd courses. this in turn leads to a situation where students from low social-economic background are less likely to apply for places in the jd programs.32 in general, given the similarities in legal system, legal education and culture between japan, south korea and vietnam, barriers and challenges facing japan and south korea may apply to the vietnamese context. in addition, financial challenges and other concerns in australia when running a jd program are likely to occur in vietnam where most law schools are underfunded. further, challenges facing these countries have also demonstrated that reforming legal education is not just simply applying a model of other countries without carefully examining other issues such as culture, economics, and political and legal systems. the author, therefore, argues that if a similar reform strategy is considered for vietnam, these challenges and barriers should be carefully examined. 31 ibid, 38. 32 ibid, 39. ii) reforming the law curriculum in vietnam: what to expect? curriculum reform is another option to be considered for vietnam. this reform has been demanded and motivated by the legal profession and the increasing competition pressure in legal education market. another driving force for curriculum reform can be seen as ‘internal’. vietnamese law students are currently required to study various non-law courses such as psychology, sociology, culture, history of vietnamese communist party, socialist science, marxist-leninist political economics, and more. as maintained by many vietnamese law school leaders, teachers and lawyers,33 there are too many non-law courses in the current curricula. in their view, many of these courses are not necessary since students are studying to obtain a legal qualification.34 they are consequently calling for reform. in curriculum reform, there are two options to be considered: (1) increasing courses on commercial and international trade law; and (2) including courses teaching practical skills, professional responsibility and legal ethics. first, adding courses teaching commercial and international trade law to curriculum is an option. some vietnamese law schools have reviewed their curricula and made changes toward this trend. this is in fact a response by law schools to the demand in vietnam for more knowledge of these law areas. in particularly, since 1995 when the country started negotiations for its access to world trade organization (wto), there has been a growing number of international trade transactions and consequently an increasing demand for lawyers in this area. vietnam’s access to wto in 2006 has 33 the 2014 research interviews. 34 the 2014 research interviews. made the demand for courses such as commercial law, international trade law, and law of wto increased considerably. accordingly, an academic department specializing in international trade law has been established35 at two principal vietnamese law schools – hanoi law university (hlu) and ho chi minh city law university (hcmclu). the hlu department of international trade law has become a dynamic and attractive academic unit to many law students.36 meanwhile, the department of international trade law is one of the units having a large number of student enrolments in hcmclu.37 as the international economics and trade become an important national priority, courses teaching this knowledge will continue to be common in vietnamese law schools’ curricula. another trend of curriculum reform to be considered for vietnam is the inclusion of courses teaching practical skills, professional responsibility and legal ethics. some law schools in vietnam have already been in the process of this reform. as undp has pointed out, clinical courses have been introduced by some vietnamese law schools to teach practical skills.38 this reform is reasonable since ‘lack of professional skills training’ has been a long-standing limitation of the current system. in some law schools, professional courses are taught by inviting judges, practicing lawyers or procurators. at hue university school of law (husl), for example, the department 35 for more details about the case of hlu, see <http://www.hlu.edu.vn/gioithieu/> at 20 june 2015; for more details about the case of hcmclu, see: http://www.hcmulaw.edu.vn/> at 20 june 2015. 36 interviews with hlu law teachers. 37 interviews with hcmclu law teachers. 38 undp 2014 clinical project report (identifying that by november of 2014, eight vietnamese have developed and included clinical courses in their undergraduate curricula). of legal professional practice has organized various skills courses for students to learn practical knowledge from inviting judges, lawyers and procurators.39 in others, professional knowledge and skills are taught as supplementary courses delivered outside formal curricula. these courses are designed as short-term training organized by law school centers for legal consultancy and short-term training. this can be seen as an increasing trend in law schools such as hlu,40 hcmclu41 and husl.42 these two options for curriculum reform, however, remain problematic in the vietnamese system. at present, the moet framework curriculum provides relatively limited space for law schools to include courses on their interests. which courses will be ‘sacrificed’ in order to leave places for adding new courses? this is a major question remaining with vietnamese law schools whenever curriculum reform is discussed. curriculum reform, therefore, has to be considered alongside law schools’ autonomy. in a heavily centralized and top-down country like vietnam, it is quite challenging for law schools to obtain a full autonomy in education, particularly in curriculum design. further, it seems reasonable to replace non-law courses with law courses as proposed by various scholars. this option, however, is not seen as simple in the vietnamese political system context. the central government led by the 39 interviews with husl law teachers. 40 for more details about the short-term training of hlu, see <http://tuvanphapluatdhl.vn/vi/news/thong-bao/gioi-thieutrung-tam-tu-van-phap-luat-truong-dai-hoc-luat-ha-noi-252/> at 27 april 2015 41 for more details about short-term training programs of hcmlu, see <http://www.hcmulaw.edu.vn/tvpl-dtnh/> at 27 april 2015. 42 for more details about the centre for legal consultancy and short-term training established under husl, see <http://www.hul.edu.vn/gioi-thieu-tt-tu-van-th-phap-luat.html> at 27 april 2015. vietnamese communist party – may not accept the removal of ideology-related courses from law curricula. as bui maintained, vietnamese legal education has been heavily shaped by the socialist theories and the central government aims to ‘produce’ generations of ‘socialist’ lawyers.43 to some extent, the maintenance of these ideology courses at higher education44 (and may be at other levels of education) is an essential condition for vietnam to maintain and stabilize the communist regime.45 iii) reforming teaching methodologies: what should it be? the reform of teaching methodology has an interconnection with curricula reform. to some extent, curriculum may determine how the courses are handled. for some people, lecture is a reasonable methodology for teaching a large degree of legal doctrines, principles and basic codes in a civil-law jurisdiction like vietnam.46 from the perspective of producing practice-ready law graduates, however, lecture by itself is not an effective teaching approach. more often, heavy emphasis on theoretical legal education is delivered at the price of lack of professional training. it is reasonable, therefore, for vietnamese law schools to employ interactive methodologies in teaching law. 43 bui, above n 7, 299-304. 44 in the vietnamese system, courses such as marxist-leninist philosophy, marxist-leninist political economic, socialist science, history of vietnamese communist party, and ho chi minh thought are required for all higher education students. 45 see, e.g., elizabeth st. george, 'socialist ideology and pracrical realism: the process of compromise in vietnam's law on education' in gillespie john and nicholson pip (eds), asian socialism and legal change: the dynamics of vietnamese and chinese reform (anu press, 2005), 115-134. 46 interviews with vietnamese law teachers; also see charles r. irish, 'reflections of an observer: the international conference on legal education reform' (2007) 24 wisconsin international law journal 5. additionally, it is necessary to diversify the teaching methodologies to meet the demands for both legal knowledge and professional skills. in an ideal environment, law teachers give lectures on fundamental legal doctrines and rules, and then assign students to do more readings and research. credit time resulting from lecture reduction will be allocated to other teaching and learning activities such as simulations, case method, seminars or clinical programs. an appropriate combination of lecture and interactive methodologies will in turn improve the teaching at vietnamese law schools. iv) adopting and incorporating cle into law curricula as an innovative methodology for teaching law, cle has been employed to reform legal education in many countries.47 cle has recently been introduced into vietnam by some international organizations to address various challenges facing legal education. in its early stage of development, cle has received different reactions from vietnamese legal education stakeholders. many people have realized the potential of cle and consequently supported the incorporation of clinical programs into law curricula. some express resistance for various reasons, including costs and other regulatory barriers for running and maintaining a clinical program. other opinions remain neutral. 47 see, e.g., frank s. bloch, the global clinical legal education movement: educating lawyers for social justice (oxford university, 2011) (identifying various countries around the globe have been using cle as a means to reform legal education system. beside the united states, australia, canada, south africa, and uk recognized as pioneers in the cle global movement, many other countries in latin america, central and eastern europe, southeast asia, japan, china, and india are in the process of cle adoption); see also, shuvro prosun sarker, legal education in asia (eleven international publishing, 2014) (identifying that some asian jurisdictions have adopted cle as an option for reforming their legal education systems including thailand, china and hong kong). it is the author’s position in this paper that cle is the most promising and effective reform that vietnam should consider. the next part will examine this issue further by explaining the reason why cle is desired reforming vietnamese legal education. what makes cle an appropriate option for vietnamese legal education reform? cle is a process of ‘learning by doing’ where students are given opportunities to practice law under supervision of qualified lawyers. brayne, duncan and grimes point out: “clinical legal education is learning by doing the types of things that lawyers do. it can take the form of simulated cases, including role-playing, which is an effective way of getting to understand the subtleties of how the law is actually applied. in its fullest form clinical legal education enables students to take on real clients’ problem and work with them”.48 as an innovative teaching methodology, cle has been considered as the most significant legal education reform, since the introduction of case-law method by christopher columbus langdell in 1890.49 evans et al., have identified various values of cle to legal education: “cle has the potential to: help students reflect on and analyse their experiences; develop student awareness of law in the context of society; 48 see hugh brayne, nigel duncan and richard grimes, clinical legal education-active learning in your law school (blackstone press limited, 1998), xiii. 49 see, e.g., richard j. wilson, 'training for justice: the global reach of clinical legal education' (2004) 22 penn state international law review 421, 421. engage students in deep and active learning, with timely, rich feedback; develop student emotional skills, values, responsibility, resilience, confidence, self-esteem, self-awareness and humility; move a student towards responsible professional identity; sensitise students to the importance of all relationships – including with clients, students, professionals; benefit from student-centred learning, which comes out of flexible and adaptable approaches; and educate students to become effective, ethical practitioners”.50 globally, because of its benefits and strengths, cle has been chosen as an option for reforming legal education. in the vietnamese context, cle is a promising option for legal education reform because it can potentially help address various challenges facing the system. i) cle helps address the problem of ‘lack of professional skills’ cle can help address the ‘lack of professional skills’ – a major problem of vietnamese legal education. in a clinical setting, students learn professional knowledge and skills by practicing. successful cle is often referred to as a process of ‘learning by doing’, ‘experiential learning’,51 or ‘context-based education’52 where students take the proactive position in the learning process. experiential learning is a very effective environment for students to learn law-in-context and practice ‘hands 50 see adrian evans, et al., best practices: australian clinical legal education, department of industry, innovation, science, research, and tertiary education (2012), 5. 51 see, eg, evans, et al., above n 50, 4 (identifying that in a clinical setting, experiential learning can take various forms such as: simulation, externship or in-house clinic). 52 in a clinical setting, three terms ‘learning by doing’, ‘experiential learning’ and ‘context-based education’ can be used interchangeably. see sullivan, et al., above n 15. on’ professional skills. in many countries, cle programs have been designed as general practices where free legal service on various areas of law is delivered by students under the same supervisors. meanwhile, specialized clinical programs have also been established in order to help clients with specific legal problems53 such as children rights protection, employment law, family law, human rights protection, immigration, and labor law. further, cle in many law schools has gone beyond the traditional law-studentalone approach and moved to multidisciplinary clinics where students from different disciplines work together in helping the same clients.54 this new cle model has proven to be an effective teaching methodology as students and supervisors from different disciplines begin learning from each other.55 clients of this multidisciplinary clinical approach also benefit from the application of a wide range of knowledge from different disciplines, all delivered in the knowledge of each other’s contribution. for those becoming practicing lawyers, skills and knowledge taught by cle will assist them in comprehending professional work quickly and effectively. in vietnam, a growing number of students are starting their legal education without an intention 53 see, e.g., jeff m. giddings, 'influential factors in the sustainability of clinical legal education programs' griffith university, (2010), 92-96. 54 a good example of this model is the multidisciplinary clinic at monash-oakleigh legal service in australia where students from law, finance and social work come to work together in the same clinic on the same cases and clients. see, e.g., ross hyams, 'multidisciplinary clinical legal education:the future of the profession' (2012) 37(2) alternative law journal 103, 103105; ross hyams, grace brown and richard foster, 'the benefits of multidisciplinary learning in clinical practice for law, finance, and social work students: an australian experience' (2013) 33 journal of teaching in social work 159, 165-168. 55 see, e.g., ross hyams and denise sadique, 'the value of incidental learning in a multidisciplinary setting' (2014) 20 international journal of clinical legal education 439, 444-456. of practicing law.56 nevertheless, skills learned in clinical programs such as communication, negotiation, writing, presentation, and time management are all important for general career success, whether or not this involves legal practice. as grimes maintained, professional skills delivered by cle ‘may better equip a student to practise the law or other chosen career now or at some later stage’.57 these skills help students become more employable and enable them to develop the so-called ‘soft’ or social skills. in a society, ‘soft’ skills are identified as critical for not only a better lawyer but also a better human being.58 ii) cle is a better approach for teaching professional responsibility and legal ethics cle can be a promising solution to address the challenge of professional responsibility and legal ethics training in vietnamese legal education. it is widely agreed that clinical approach is the best environment to teach professional responsibility and legal ethics.59 edwards, for example, argues: “...doctrine, theory, and skills cannot be appreciated if they are introduced without engaging the pathos 56 bui, above n 7, 303 (identifying a research in 2008 revealed that by the end of 2007, hanoi law university alone has produced approximately 53,000 bachelors of law while the number of practicing lawyers nationwide only reached just over 4,000); in addition, our surveys carried out in some vietnamese law schools in 2010 revealed that less than 20% of law graduates became practicing lawyers even though there is a growing number of students studying law; this figure was reinforced in the 2014 research interviews. for example, the interviews conducted in cantho city with vietnamese law teachers and lawyers revealed that less than 5% of cantho university law graduates follow lawyering career. in some other law schools such as husl, vudl, and danang economics university department of law, the interviews revealed that the number of graduates practicing law fall below 10%. 57 see richard grimes, 'reflections on clinical legal education' (1995) 29 the law teacher 169, 172. 58 see, e.g., richard a. matasar, 'the maccrate report from the dean's perspective' (1995) 1 clinical law review 457, 474. 59 see, e.g., christine mary venter, 'encouraging professional responsibility an alternative approach to teach legal ethics' (1995) 58 law and contemporary problems 287, 290-293; james e. moliterno, 'on the future of integration between skills and ethics teaching: clinical legal education in the year 2010' (1996) 46 journal of legal education 67. of the human issues that the lawyer encounters when representing clients”.60 similarly, posner maintains: “through interactive education, such as client representation, simulations and problem-solving, individuals can enhance skills in moral analysis and build awareness of the situational pressures that can skew judgment”.61 further, milstein argues that studying legal ethics in a clinical setting can produce ‘an experiential learning experience that is powerful and very distinct from what can be learned in the classroom’.62 in a clinical setting, students not only learn about relevant principles of legal ethics, but more importantly, they practice acting ethically under close supervision of practicing lawyers. the externship model,63 for example, often places students at private law firms, under the supervision of qualified practicing lawyers, to work directly with clients. in their daily interactions with clients, students have to learn how to deal with various real issues of legal ethics and responsibility such as confidentiality (including client privilege), conflict of interest, undertakings and the duty not to mislead the court.64 60 see harry t. edwards, 'the growing disjunction between legal education and the legal profession' (1992) 91 michigan law review 34, cited by margaret barry, jon c. dubin and peter a. joy, 'clinical education for this millennium: the third wave' (2001) 7 clinical law review 1, 34. 61 see, e.g., richard posner, ‘the deprofessionalization of legal teaching and scholarship’ (1993) 91 michigan law review 1921, 1924, cited by deborah l. rhode, 'legal ethics in legal education' (2009) 16(1) clinical law review 43, 48. 62 see robert d. dinerstein et al., 'legal interviewing and counseling: an introduction' (2003) 10 clinical law review 281, cited by milstein, above n 4, 60. 63 see evans, et al., above n 50, 9; see also elliott s. milstein, 'clinical legal education in the united states: in-house live client clinics, externships, and simulations' (2001) 51 journal of legal education 375, 376. 64 for more details of discussion on issues of legal ethics and professional responsibility, see adrian evans, the good lawyer (cambridge university press, 2014), chapters 5-8. however, a better educational result in teaching legal ethics and professional responsibility can be achieved through a live client in-house clinic.65 designed as a small law firm but not charging a fee for legal service, an in-house clinic provides students with opportunities to work on real cases and with real clients. when acting on their clients’ behalf, clinical students have to address similar issues of legal ethics and professional responsibility as those faced by a qualified lawyer in a private law firm. compare with those in a law firm, however, in-house clinic students and teachers are not under any business pressure and this helps them focus more on the educational objectives. moreover, clinical teachers are not constrained by fee considerations and are able to take a broader and more holistic approach to their clients' problems than does a lawyer working in a fee-generating environment.66 there are reasons, therefore, to believe that in-house clinic is the best cle model in preparing law student to be ethically and responsibly practice-ready. of course, the teaching of legal ethics and professional responsibility can also be well achieved through other clinical models such as simulations and street law. iii) cle can better prepare students to be ‘justice ready’ cle is an effective means to strengthen law students’ ‘social justice’ awareness. when clinical students represent clients in legal matters, they are exposed to poor people, injustice, and other socially inequitable matters. this exposure helps law 65 see evans et al., above n 50, 9; see also stacy caplow, 'clinical legal education in hong kong: a time to move forward' (2006) 36 hong kong law journal 229, 233-235. 66 see, e.g., ross hyams, '"on teaching students to ‘act like a lawyer’: what sort of lawyer?”' (2008) 13 journal of clinical legal education 21, 27. students realize that there are injustice and inequitable problems in society. with time, it will build students’ sense of social responsibility and creates a desire to help people in difficult situations. in other words, cle can potentially assist in strengthening law graduates’ awareness of social justice and pro bono responsibility. social justice education can be well achieved through various clinical models such as in-house clinics, simulations, externships or street law. it is believed, however, that a real client in-house clinic may be the best vehicle to teach students social justice. quite often, in-house clinic students are working under the close supervision of law teachers who are qualified lawyers to help under-served clients.67 without this invaluable assistance, in many cases, social justice cannot be addressed. rice even believes that education objective cannot be realized if clinical programs do not provide legal assistance to the poor.68 this in turn reminds students about the social responsibility of being a lawyer. as william maintained, educating a law student to develop a sense of social responsibility, as well as professional skills, becomes important for their future lawyering career and for the stability of their country as a whole.69 in a society, learning to be responsible is identified as critical for human functioning. for example, to learn how to empathise with others’ difficulties and to accept social responsibilities for others is important for a person to grow ethically and 67 see, e.g., simon rice, a guide to implementing clinical teaching method in the law school curriculum, centre for legal education (1996) , 10 (identifying from the perspective of global cle that in most cases, legal clinics provide legal assistance to the poor and underserved people. however, there are also taxation law or business clinics established for education purposes only). 68 ibid, 12. 69 see, e.g., quigley p. william, 'letter to a law student interested in social justice' (2007) 1 depaul journal for social justice 7, 1314. responsibly. the law school, therefore, should be not only a place to teach law and professional skills, but also a school of life where students can learn values and the benefits of being human. in this regard, rice believes that cle is not only a method of teaching professional skills but also ‘a means for conveying a sense of professional responsibility, personal morality, and the reconciliation of personal and structural notion of justice’.70 in the context of vietnam, a similar justice education result can be achieved if a clinical approach is employed. to put it another way, cle will potentially help vietnamese law schools prepare their students to be not only practice-ready but also ‘justice-ready’.71 iv) cle helps build up and strengthen students’ ability to think like a lawyer in legal education, training students to ‘think like a lawyer’ is an important mission.72 to some extent, ‘think like a lawyer’ is the ability to think independently, creatively, and critically. nowadays, in order to cope with the complexity of legal problems and be successful, it is obvious and crucial that lawyers are required to have not only a broad base of knowledge but also good thinking ability. this capacity can be built and sharpen in an experiential learning environment such as cle. 70 rice, above n 67, 13. 71 see, e.g., jane h. aiken, 'the clinical mission of justice readiness' (2012) 32(2) boston college journal of law and social justice 231, 241-245. 72 see, e.g., anthony g. amsterdam, 'clinical legal education a 21st century perspective' (1984) 34 journal of legal education 612, 612. as an integral part of cle, reflection is the key factor that helps strengthen students’ thinking ability. in a clinical setting, students are not only given opportunities to learn professional knowledge and skills but also required to reflect from their experience. with time, the reflection process will help students study better and mature professionally and ethically. ledvinka, et al., even believe that reflection is the ‘magic ingredient that converts legal experience into education’.73 similarly, hathaway maintains: “while professional skills training can be provided by bar admissions courses, articling programs, or professional life, none of these settings can replicate the opportunities for reflection, self-consciousness, and a more complete understanding of the legal order which a structured program of clinical education can provide”.74 a well-known educational theory asserts that there are four stages of learning, in each of which reflection is an important step.75 this learning process can be described as the experience-reflection-thinking-acting cycle which can be entered at any point, but the learners always follow the same reflective sequence.76 a clinical program where reflection is graded as ’insight assessment’77 will motivate students to work harder and try their best to understand the problems more 73 see georgina ledvinka, 'reflection and assessment in clinical legal education: do you see what i see?' (2006) 9 journal of clinical legal education 29, 30. 74 see james c. hathaway, 'clinical legal education' (1987) 25 osgoode hall law journal 239, 244. 75 see, e.g., kolb d. a. and fry r., 'toward an applied theory of experiential learning' in c. cooper (ed) theories of group process (london: john wiley, 1975) (describing four stages of the education process which follow from each other: concrete experience is followed by reflection on that experience on a personal basis. this may then be followed by the derivation of general rules describing the experience, or the application of known theories to it (abstract conceptualization), and hence to the construction of ways of modifying the next occurrence of the experience (active experimentation), leading in turn to the next concrete experience. 76 ledvinka, above n 73, 32. 77 see ross hyams, 'assessing insight: grading reflective journals in clinical legal education' (2010) 17 james cook university law review 25, 25. comprehensively, and not just for the purpose of writing a good reflective journal for grading. in this regard, reflection is a ‘critical educational tool’ which powerfully assists students to develop their professional skills, including thinking ability. 78 from a reflective journal perspective, ogilvy maintains: "through writing about what and how they are studying, students can move from superficial comprehension to employing critical thinking skills in their engagement with the material."79 further, reflection also means that students think about their experience in order to evaluate their performance and identify what they could have done better.80 consequently, the harder students work, the more they have to reflect and the more reflections they have, the more opportunities for them to practice and sharpen their thinking ability. from the educational perspective, students’ reflection can give clinical supervisors early and profound understanding of their students’ progress or blockages, and their educational growth within their clinical course.81 moreover, reflection within a clinical setting becomes a way of developing a ‘reflective practitioner’ in each and every student.82 with time, this will help build ‘students’ sense of responsibility, resilience, confidence, self-esteem, self-awareness, courage and humility’.83 78 ibid, 31. 79 ogilvy j., ‘the use of journals in legal educating: a tool for reflections’ (1996) 3 clinical law review 55, quoted by hyams, above n 66, 28. 80 see, e.g., bryan l. adamson, et al., 'clinical faculty in the legal academy: hiring, promotion and retention' (2013) 62 journal of legal education 115, 133. 81 hyams, above n 77, 31. 82 evans, et al., above n 50, 20. 83 ibid. v) cle helps bridge the gaps between legal education and the legal profession by filling the gap between law curricula and the legal profession,84 cle is seen as a potential option for legal education reform in vietnam. the disconnection between legal education and the legal profession has been identified as a major limitation of the vietnamese system.85 since cle is believed to be the best way to study law-incontext,86 it will potentially help vietnamese law schools to effectively address this challenge. as evans et al., maintained, a clinical program involving real legal and client work will: “teach students to think critically about law, rules and practice from a variety of perspectives and theoretical understandings of law”.87 similarly, bui argues that ‘on-the-job’ training or ‘learning-by-doing’ is the most effective way to connect vietnamese legal education with the profession.88 in a clinical setting, students are in a proactive position to study law. brayne, duncan, and grimes have pointed out: “clinical legal education requires students to take an active part in the learning process. they assume a degree of control over their own education and they see law in its real-life context”.89 since there is always a ‘gap’ between the law and practice, learning the law in practice is the most effective way of studying law. cle, by linking 'black letter' law with real life situations, will provide students with a context for a deeper understanding and 84 see, e.g., nisreen mahasneh and kimberly thomas, 'learning from the unique and common challenges: clinical legal education in jordan' (2012) 5 berkeley journal of middle eastern and islamic law 1, 11-17. 85 bui, above n 7, 299. 86 evans, et al., above n 50, 4-6. 87 ibid, 15. 88 bui, above n 7, 312. 89 brayne, duncan and grimes, above n 48, 1. application of legal knowledge.90 students not only improve their understanding of the law and its application, but also get exposed to whether the laws are adequate for solving social problems. in other words, by juxtaposing what the students learns in the academy versus how such learning gets applied in practice,91 cle thus bridges the gap between legal education and the legal profession. in summary, there are concrete reasons to believe that cle will help address various challenges facing vietnamese legal education. the fact that more and more law schools around the world are moving toward clinical approach has proven that cle is an appropriate option for legal education reform. in the global clinical movement these days, vietnam is not and should not be an exception in this common trend. conclusion facing various challenges, vietnamese legal education has failed in preparing students to practice law and this situation has consequently called for reform. as discussed in the paper, the demand for legal education reform is widely recognized and agreed among stakeholders in vietnam. this reform is necessary to strengthen the legal profession, promote a rule-of-law society, and provide legally-qualified human resources for the national social-economic development. possibilities for vietnamese legal education reform have also been discussed in this paper. while a graduate-level legal education has been a potential reform in other countries, many challenges still remain. vietnam should, therefore, comprehensively 90 hyams, above n 77, 25. 91 see, e.g., redlich allen, 'perceptions of a clinical program' ( 1971) 44 southern california law review 574. examine and address these challenges if a similar strategy is considered. in addition, curriculum and teaching methodology reform should be discussed and implemented alongside other considerations such as law schools’ autonomy. in many cases, curriculum and teaching methodology reform will not be effective in vietnam without considering the issue of law schools’ self-determination. finally, cle was discussed as the most promising and appropriate option for vietnamese legal education reform. with its strengths and benefits, cle can help effectively address various challenges facing the vietnamese system. this can be summarized as follow: (1) cle helps address the problem of ‘lack of professional skills’; (2) cle is a better approach for teaching professional responsibility and legal ethics; (3) cle helps prepare students to be justice-ready; (4) cle can strengthen students’ thinking ability; and (5) cle helps bridge the gap between legal education and the profession. as cle has developed and gone global, there are reasons to believe that it will be the future of vietnamese legal education. however, given the differences in political, legal and social systems between vietnam and other countries, various issues need to be further examined in order for cle to be successfully adopted and developed in vietnam. this paper, therefore, aims to establish a foundation for future research and discussion on legal education reform and the adoption of cle in vietnam. reviewed article: teaching and learning in clinic enhancing emotional competencies with law students colin james and felicity wardhaugh* the university of newcastle and the australian national university, australia this paper follows a preliminary report titled ‘a client-focused practice: developing and testing emotional competency in clinical legal interviews’. it provides the final results of research with students at the university of newcastle australia that was designed to test ways to enhance emotional competencies in clinical placements. a introduction in our earlier paper we discussed why it is becoming increasingly important for law students to be introduced to the concept of ei and provided with the opportunity to develop and enhance their ei abilities.[footnoteref:1] as stated there, the teaching and learning outcomes (especially tlo 5) in legal education recognise that employers expect law graduates to have well-developed self-awareness and the kind of good communication skills that require emotional capacities.[footnoteref:2] while this study involves students on placement in a community legal centre practice, the need for law students to enhance their emotional capacities is just as significant for commercial legal practice. in fact, commercial practice often involves billing clients based on time spent which potentially adds another level of stress for the lawyer requiring well-developed emotional competence. [1: * felicity wardhaugh is a solicitor in private practice and colin james is a senior lecturer at the australian national university, anu college of law legal workshop. during this research both researchers were clinical legal educators at the university of newcastle legal centre (unlc), australia. felicity wardhaugh and colin james, ‘a client-focused practice: developing and testing emotional competency in clinical legal interviews’ (2014) 20 volume ii international journal of clinical legal education, 633-645.] [2: anna huggins, sally klift and rachael field, ‘implementing the self-management threshold learning outcome for law: some intentional design strategies from the current curriculum toolbox’ (2011) 21(2) legal education review 183.] the concept of emotional intelligence (ei) is relatively recent although the relevance of human emotion has been reflected upon for centuries.[footnoteref:3] in the early 20th century, psychologists developed ‘iq’ tests to measure intelligence.[footnoteref:4] in the 1990s the possibility of a social intelligence or ei caught the imagination of the public.[footnoteref:5] unsubstantiated claims about the benefits of ei and controversy over whether it should be considered an ‘ability’ or a ‘trait’ led to distrust about its validity or measurability, however some wellrespected tests emerged.[footnoteref:6] ‘ability’ ei is usually measured through problem-solving tests, which are similar to those used in intelligence tests.[footnoteref:7] ‘trait’ ei is typically regarded as aspects of character, and includes motivation and social competency, and is generally measured using self-report tests.[footnoteref:8] [3: aristotle discussed the role of emotions in his work on moral virtue in his lectures published as ‘nicomachean ethics’ ] [4: possibly the first iq test developed was by binet-simon to help assess which school children may need assistance. alfred binet and theodore simon, the development of intelligence in children (williams & wilkins, 1916) ] [5: daniel goleman, emotional intelligence: why it can matter more than iq (bantam books, 1995)] [6: for a discussion of this development see elizabeth j austin and donald h. saklofske, ‘introduction to the special issue on emotional intelligence’ 65 (2014) journal of personality and individual differences 1.] [7: j.d. mayer, d. caruso and p. salovey, 'emotional intelligence meets traditional standards for an intelligence' (1999) 27(4) intelligence 267;m. brackett and p. salovey, 'measuring emotional intelligence with the mayer-salovey-caruso emotional intelligence test (msceit)' (2006) 18 (suppl.) psichothema 34. ] [8: r. bar-on, 'the bar-on model of emotional-social intelligence (esi)' (2006) 18 suplement psicothema 13; r. bar-on, 'the emotional quotient inventory (eq-i): a test of emotional intelligence' (1997) (toronto,multi-health systems, inc.).] the ability model of ei postulates people have four broad ‘domains’, the ability to perceive emotions, to use emotion to facilitate thinking, to understand emotions and to manage emotions. these abilities are broadly conceived and interrelated so that our ability to perceive emotions includes our perception of other people’s emotions as well as our own. understanding emotions includes appreciating likely causes behind certain emotions. the fourth ability, the management of emotions, includes our ability to regulate our emotional state, as well as to interact effectively with other people’s emotions and feelings.[footnoteref:9] [9: mayer j.d., salovey, p and caruso, d.r ‘emotional intelligence: theory, findings and implications’ (2004) 15 journal of psychological inquiry 197 see also davies, m., l. stankov, and r.d. roberts. (1998). ‘emotional intelligence: in search of an elusive construct.’ 75(4) journal of personality and social psychology, 989] in seeking to improve students’ ei, the authors favour the ability construct of ei over the trait model. a belief that students can improve their ei is consistent with findings on neuroplasticity and our capacity to learn from experience, as explained by the theory of ‘growth mindset’.[footnoteref:10] [10: kathrin koch et al, ‘extensive learning is associated with gray matter changes in the right hippocampus’ (2016) 125 neuroimage 627; carol s. dweck, mindset: the new psychology of success (ballantine, 2007).] the research into ei challenges the historical cognitive dominance, whereby lawyers privilege “thinking” over “feeling” in legal education and practice. the conventional, dualistic view that thinking and feeling act as separate functions is now complicated by the probable inseparability of cognitive and affective interactions in how we process information and make decisions.[footnoteref:11] research into what makes an effective lawyer now supports ei as a necessary skill for lawyers,[footnoteref:12] and ei has become a professional characteristic that is leveraged in promises of a caring approach with clients: [11: antonio damasio, descartes' error: emotion, reason, and the human brain, (penguin, 2nd ed, 2005) and immordino-yang m, damasio a. ‘we feel, therefore we learn: the relevance of affective and social neuroscience to education’ (2007) 1 mind brain education 3.] [12: marjorie m. shultz & sheldon zedeck, ‘predicting lawyer effectiveness: broadening the basis for law school admission decisions, (2011) 36 law & society inquiry 620. susan daicoff, ‘expanding the lawyers’ toolkit of skills and competencies, synthesizing emotional intelligence, conflict resolution and comprehensive law” (2015) santa clara review, 795. ] each of our lawyers and conveyancers are as personable and approachable as we are knowledgeable and serviceable. we have the emotional intelligence to understand almost any legal situation and, just as importantly, you, our client.[footnoteref:13] [13: di rosa lawyers < http://dirosalawyers.com.au/about/meet-the-team >21 november 2015] despite the apparent openness to ei in the legal profession, legal education has been slower to respond. changes have begun however, and initiatives are emerging in legal education to help law students improve their ei ability.[footnoteref:14] some clinical law schools are incorporating aspects of ei into the curriculum, for example when students learn about ‘active listening’ in dispute resolution.[footnoteref:15] similarly, students learning the practice of mediation are encouraged to use insight to understand the situation of the other side, and to consider if developing a more empathic approach might help resolve the dispute.[footnoteref:16] . in addition, some law schools incorporate discussions of ei as an aspect of professional resilience training, in response to research showing law students typically experience a deterioration in their mental health as they progress through law school.[footnoteref:17] consistently, other research shows the ability to express and interpret personal emotions often corresponds with improved wellbeing.[footnoteref:18] [14: nathalie martin, ‘think like a (mindful) lawyer: incorporating mindfulness, professional identity, and emotional intelligence into the first year law curriculum’ (2014) 36 (3) university of arkansas at little rock law review 413. this follows earlier work such as marjorie silver, emotional intelligence and law (1999) 5(4) journal of psychology, public policy and law 1173, and john montgomery (2008) ‘incorporating emotional intelligence into legal education, strengthening the professionalism of law students 39 university of toledo law review 322.] [15: nadja alexander and jill howieson, negotiation strategy style skills (2nd ed., 2010) lexisnexis butterworths (chapter 8). roger fisher and daniel shapiro, beyond reason, using emotions as you negotiate (penguin, 2006)] [16: robert a barusch bush, ‘mediation skills and client-centered lawyering: a new view of the partnership (2013) clinical law review 19, 429. see also susan l. brooks, ‘using a communication perspective to teach relational lawyering’ (2015) 5 nevada law journal 477, where brook’s approach to teaching communication skills to lawyers includes aspects of ei.] [17: rachael m. field and james duffy, 'law student psychological distress, adr and sweet-minded, sweet-eyed hope' (2012) 23(3) australasian dispute resolution journal 195.] [18: martins, a., ramalho, n. and morin, e. ‘a comprehensive meta-analysis of the relationship between emotional intelligence and health’ (2010) 49 personality and individual differences, 49; brian s. clarke, 'coming out in the classroom: law professors, law students and depression' (2015) 64(3) journal of legal education 403.] despite the significant increase in empirical and theoretical publications applying, advocating and critiquing the utility and validity of ei, including its relevance in legal practice, the authors could find no research testing whether training in emotional competency could improve the way a law student performed on placement in a legal clinic. b the research hypothesis the presumption for the hypothesis was that a practical training program enabling law students to develop their ei competencies, going further than merely helping them to understand theories of ei, would help them in their practice as lawyers. consequently, the hypothesis was that students who participate in an ei training module will perform better, as measured by their respective clients, by their supervisors and by self-assessment, in a first legal interview, compared with a control group of students who do not participate in the training. more information about preparation for the project is detailed in the earlier paper.[footnoteref:19] briefly, the authors devised a training program to improve students’ emotional competency and attempted to test the effectiveness of the program using students’ first interview of live clients attending a legal clinic, by analyzing responses and feedback from the clients. [19: xxxxxx] the clinical setting the research took place at a community legal centre (xxxxx), a general legal practice funded by the xxxxx, as part of the xxxxx law school. the centre provides free legal assistance to members of the community in a ‘drop in’ legal advice clinic and is also a vehicle for teaching students legal practice skills such as client interviewing, in a clinical module. students are enrolled in the university’s practical legal training (plt) program, integrated with their last two years of academic legal study, and once completed they are eligible for admission to practice as a lawyer. the xxxx program requires students to work 360 hours over a 2-year period, of which the first 90 hours is at the centre and the balance can be at another legal practice or organisation in the community. the program includes class-room teaching, which complies with the course content requirements of the solicitors’ admission board. the students who participated in this research were 4th year students in their first 90 hours of placement at the clinic. participants included both graduate and undergraduate students predominantly aged in their twenties. most had no prior experience of legal interviewing, because the research took place in their first semester of the plt program. based on the plt program being an ‘admission stream’ and on the authors’ experience over many years teaching in that stream it was assumed that most students in the program were seeking admission to practice. during 2013 and 2014, the clinic operated on wednesday mornings and clients attended seeking legal advice on issues typically encountered in a general practice community legal centre, such as family law, criminal law, employment law, tenancy disputes and deceased estates. students met the clients and asked them to complete a form giving information about themselves and their legal problem. the students then escorted the client to an interview room. the student who conducted the interview enquired about the client’s case (the first stage) but did not provide legal advice to the client. once the student was satisfied that he or she understood the legal problem the student asked the client to wait, and left the interview room to find a supervising lawyer. the student then discussed the case with the supervisor (out of client earshot) and the student, together with the supervisor, decided on legal advice for the client. both the supervisor and student returned to the client in the interview room where the supervisor provided legal advice to the client (second stage) with the student observing and assisting. this research sought to make use of the time gap between the first and second stages, which provided an opportunity for questionnaires to be completed by all three participants in the process: the client, the student and the supervisor. ethics the university’s human research ethics committee granted approval for the research on 25 october 2012 (h-2012-0368). subsequent procedural amendments were also approved as variations. method a research assistant (ra) was employed to communicate with participating clients and students and to distribute research information sheets. if the client agreed to participate, the ra produced a questionnaire and asked the client to complete it during ‘the gap’ whilst waiting for the student to return with a supervisor. the number of clients who refused to participate in both 2013 and 2014 was insignificant. the ra also explained the research to the students, provided them with an information sheet and invited them to consider participating. similarly, supervising lawyers were informed of the project and invited to participate. in both years all students invited to participate agreed to do so. four of the six supervising lawyers participated. [footnoteref:20] [20: the authors were not participants.] the research began with a pilot study in 2012, as discussed in our earlier paper.[footnoteref:21] the main research involved 2 cohorts of students. the first cohort in 2013 was the ‘control’ group, which consisted of 56 students who received no additional training, and conducted 118 client interviews. the second cohort in 2014 was the intervention or ‘experimental’ group of 64 students who conducted 122 interviews after receiving four weeks of additional ‘intervention’ training. [21: wardhaugh and james, above n. p.638.] the research design involved a mixed method to test the hypothesis, using a questionnaire combining quantitative and qualitative questions. both the client and student questionnaire involved eight quantitative questions using a likert scale.[footnoteref:22] [22: a likert scale is a common form of scaling responses in survey research like this. here, a similar questionnaire instrument was used for the supervisors but it was reduced to 5 questions. supervisors in the pilot expressed concern that they were unable to answer some of the questions because they had not seen the student and the client interact in the first stage of the interview process.] the questionnaire for clients combined elements from earlier studies in legal and medical education.[footnoteref:23] the clients’ questionnaire is shown at figure 1. for each question clients were asked to respond: ‘unsure/don’t know – strongly disagree – disagree – agree – strongly agree’. [23: barton, k., cunningham, jones, c.g., maharg, p, ‘valuing what clients think: standardized clients and the assessment of communicative competence ‘(2006) 13(1) clinical law review 65. mercer sw et al, ‘relevance and practical use of the consultation and relational empathy (care) measure in general practice’ (2005) 22 (3) family practice 328. mercer sw et al (2004) ‘the development and preliminary validation of the consultation and relational empathy (care) measure: an empathy-based consultation process measure’ 21 family practice 6, 699-705. ] figure 1. there were also two qualitative open questions in the client questionnaire: 1. ‘please use the space below if you would like to explain how the student could improve upon their interviewing skills’ (‘the improvement question’), and 2. ‘please use the space below if you would like to explain any of your answers to the questions on the survey’ (‘the explanation question’). the pilot test in 2012 had indicated significant participant bias as most clients gave very positive answers to all questions. in response we varied the questionnaire and included “the improvement question” to encourage clients to be more candid about the interview process. the research periods the control group interviews took place between 10 april 2013 and 29 may 2013 and the intervention group interviews took place between 7 april 2014 and 11 june 2014. for each cohort the research commenced in the 5th week of the first semester so that the control group of students and the intervention group of students were at the same point in their studies both in the clinic and their other doctrinal subjects. the difference was that the intervention cohort received 4 weeks of ei training before the research commenced whilst the control group did not. steu testing students in the control group and the intervention group were each tested before and after the research period using the situational test of emotional understanding instrument.[footnoteref:24] the steu questionnaire was developed by maccann and roberts for use in ei research and has been tested to show good validity.[footnoteref:25] whilst the msceit test is commonly used in ei studies the cost was prohibitive for this project.[footnoteref:26] the multiple choice format of steu is designed to test understanding of 14 different emotional states, which was suitable to capture before and after levels for the students in both control and intervention cohorts. [24: maccann, c., & roberts, r. d. ‘new paradigms for assessing emotional intelligence: theory and data’ (2008) 8 emotion 540] [25: nele libbrecht & filip lievens, ‘validity evidence for the situational judgment test paradigm in emotional intelligence measurement’ (2012) 47 (6) international journal of psychology 438. veleka d. allen et al, 'development of the situational test of emotion understanding brief (steu-b) using item response theory' (2014) 65 personality and individual differences 3.] [26: mayer, j.d., salovey, p. and caruso, d., mayer-salovey-caruso emotional intelligence test (msceit), (2002) multi-health systems, toronto.] c. the training modules for the intervention group the intervention training aimed to assist students recognise the importance of emotions in legal practice and to facilitate development of their emotional competencies whilst developing their interviewing skills in a clinical setting. the structure of the intervention consisted of 8 hours of training over four weeks being 4 x two-hour, weekly seminars. the intervention included engaging the students using class discussion, video simulations, class exercises, as well as a guest speaker and visual presentations on specific topics associated with current knowledge on emotions and their relevance in legal practice. overall approach to the intervention training modules the authors sought to make the intervention development seminars engaging, creating a relaxed, informal atmosphere in class to encourage the students to participate as fully as possible. one assumption was that students at different stages of emotional competency would learn best from active participation and by listening to different perspectives and reflections, and by engaging with each other.[footnoteref:27] we used a diverse range of colour imagery and audio in our presentations as well as humour in entertaining video clips. we devised activities as learning tools so that students were not passively sitting in class, and we helped them focus by ‘banning’ the use of laptops, tablets and smart phones in class and persuading the students of the value of being present, and reflecting on the immediate content of discussions without taking notes, or checking their messages. [27: research in the business field suggests ei competencies are best developed ‘on the job’ through group dynamics. n. clarke ‘developing emotional intelligence through team-based learning’ (2010) 21 human resource development quarterly 119; p moriarty and f buckley ‘increasing team emotional intelligence through process’ (2003) 27 journal of european industrial training 98] overall, the training aimed to help students improve their abilities to identify, understand, use and manage their emotions, specifically in a client interview situation. the ability to understand emotion due to the emphasis in law school on cognitive performance we expected the students to be consciously trying to ‘think like lawyers’. the study and practice of law has been portrayed as a ‘cognitive and rational’ process, where emotions need to be eliminated for better decision-making.[footnoteref:28] one student explained this perspective well: [28: gerald f. hess, 'heads and hearts: the teaching and learning environment in law school' (2002) 52(1 & 2) journal of legal education 75] based on my law studies in previous years, i was under the impression that a legal professional should be as neutral or emotionless as possible when engaging with their clients, so as to maintain a professional working relationship with the client, to approach their legal matters objectively, and so as to not become personally invested in their cases. attempting to leverage any cognitive bias in the students’ thinking we began by focusing on the cognitive dimension of the training. we invited a clinical psychologist to present to the students on the topic of ‘emotions and the law’ with a view to helping the students to start thinking about the role and importance of emotions, the science behind theories of emotion and to begin the process of understanding how emotions may inform our thinking, decisions and behaviour. the speaker was engaging, amusing and informative and appreciated by the students: the things that professor xxxx said were important because as someone who may potentially end up being a practising lawyer it’s important to see potential clients as human beings with the same vulnerabilities as you the speaker demonstrated the potential presence of cognitive bias through a short interchange with a student. when a student was asked: ‘how do you feel about your partner?’ she responded: ‘i think he is awesome’ providing a ‘cognitive’ response to a question about emotions.[footnoteref:29] [29: as the psychology lecturer pointed out, people typically find it hard to openly express their emotions and tend to hide behind a ‘safer’ response. when he pressed the student she quietly said ‘well, i love him’ but it felt very awkward.] other intervention activities involved strategies to help the students realise how their values can affect their emotional responses. one exercise used a provocative scenario by jonathon haidt.[footnoteref:30] the story involves a brother and sister who have sexual intercourse while on a holiday. they use a contraceptive and afterwards decide the experience was good but agree not to do it again. students were asked to notice how they felt about the story: [30: j haidt, ‘the emotional dog and its rational tail: a social intuitionist approach to moral judgment’ (2001) 108 psychological review 814] i really enjoyed the exercise where we were required to decide whether we thought that it was okay or not okay for a brother and sister to make love. i realised that the point of the exercise was to show how our ‘emotional brains’ can take over before our ‘rational brains’ are able to kick in. i was sitting next to [x ]and she immediately circled ‘no’ but i held back and considered if there were any rational reasons for circling ‘no’. we had a heated discussion because [she] realised that she could not explain why she circled ‘no’, only that ‘it was disgusting’. however, i do not have a brother and therefore was able to consider the matter more objectively ….. my immediate thought was ‘eww’! however, when i tried to [write] down my reasons for this response. i could not think of any rational reasons. i had no personal reason to think that what they did was wrong besides a gut feeling that it wasn’t right. i just believed it was wrong. so then, i considered writing that i thought it was okay. looking at it from a rational point of view i can see that the actions of the brother and sister do not affect me personally. they were both consenting adults and it was a one-time thing that did not have any future consequences. in the end, i could not bring myself to answer yes ….my emotional response won the debate. the reflection process in understanding emotions students in the intervention group were asked to write a reflection paper each week for the first three weeks to explore how the issues examined in the seminars might help them understand the relevance of ei in their legal placement, and for them as a beginning legal professional. the researchers gave qualitative feedback to each student with a personalized and supportive response. the reflection process required students to intentionally pay attention to feelings, and to the likely feelings of the client. students were asked to notice their emotions in working with clients, to question their feelings and decide whether it was helpful or unhelpful in assisting their analysis of the case and giving the client the best possible legal assistance. by responding to each student reflection, the authors were able to facilitate and in many cases improve the students’ engagement with the reflection process. typical responses to students were: in your next reflection, i want you to go deeper and discuss the emotions you think a client might have had, and how they may have affected their communications and decisions. also what were your emotions, and how did they affect your behaviour? …you describe a narrative of events rather than reflecting on your emotions or those of another in an interview situation….. try to recall the apparent emotions of …client you interviewed. there are many things you can reflect on, eg. what were your emotions at the same time? how do you think the client's emotions affected their thinking and communication, and how did your emotions affect yours? the following short extracts show how the reflective process apparently helped one student shift their perspective from ‘descriptive’ to ‘reflective’: student a first reflection: it is very important to be patient. as a lawyer, i would like to make my client feel comfortable and i would like to create a relationship of trust. student a – final reflection: i think that maybe he just wanted to be heard. from watching the video clip, the client really seemed to just want someone to try and understand him….. the reflections gave the subsequent classes more salience by enabling us to incorporate issues raised in class discussions. further, some students developed enough trust to use their reflections to disclose difficulties they were experiencing when interacting with clients. our responses to the students helped break down barriers, which in turn led to further improved trust and more open discussions in class. perceiving emotions in oneself in helping students improve their capacity to recognise their own emotions, we suggested they become ‘a student of me’ and learn their own emotional ‘triggers’. we introduced ‘emotion cards’ to demonstrate the large number of emotions for various situations, to discuss how emotions can be fleeting, multiple or confusing, and to demonstrate the difficulties some have in identifying and recognising emotions.[footnoteref:31] [31: we used the ‘emotions cards’, published by the langley group http://hub.langleygroup.com.au/shop/category/cat13629/facilitation_and_coaching_tools.html. n ashkanasy, charmine e j härtel and catherine s daus, 'diversity and emotion: the new frontiers in organizational behavior research' (2002) 28 journal of management 307. ] perceiving emotions in others to help students understand the challenge of recognising emotions in others we organized several group activities. one activity involved ‘emotional charades’.[footnoteref:32] students were placed into groups of five and one member was instructed to be an ‘actor’. the actor was asked to ‘replicate’ the emotion, without speaking, of how they might feel on walking out of a performance review where they were told their work was poor. [32: david r caruso, peter salovey, ‘the emotionally intelligent manager’ (jossey bass, 2004), p.89] there was lively discussion afterwards whilst the class worked through whether they had identified what the actor was feeling. subsequent student reflections captured their thinking about others’ comments: when people started to describe the emotion that they picked up on, i initially thought that everyone must have had different scenarios. i was surprised when i realised that everyone had the same scenario, but had expressed it in different ways. it was surprising how people chose to express the emotion in many different ways, from energetic anger all the way down to quite introverted emotions like uncertainty. the other thing i found surprising, was how hard it was to describe the emotion i had witnessed. i thought it would be easy to describe disappointment, but when i started thinking about it, i found it really hard to put into words. i found it very interesting just how varied the individual responses were. nearly everyone who ‘acted’ came up with a different emotion to the same situation, and for those who did act out the same emotion, each portrayal was unique. some people had very loud, over the top reactions, whilst others simply slumped in their chairs. it seemed i had a very naive view of just how varied people’s emotional reactions can be. i never knew there were so many ways to exhibit ‘frustration’ or ‘anger.’ research suggests we have a natural tendency to perceive emotion from within our own cultural frame and to judge others only from what we can see, which in a legal interview may be a small part of a client’s reaction.[footnoteref:33] to make this a more realistic experience for students we devised a practical exercise. working in pairs, one student was given a pen and informed (separately) that the pen was very valuable for emotional reasons (it belonged to a deceased family member) and they were to resist any attempt by their partner to borrow it and, on no account, were they to give a reason for refusing to surrender the pen. the other student, uninformed of the instructions to the first student, was given one minute to persuade their partner to lend them the pen. we anticipated that this exercise would appeal to law students who see themselves as strong advocates. by the end of the activity only one student had successfully borrowed the pen, and then only for a ‘few minutes’. this simple activity appeared to have a profound effect on some students: [33: constantin bratianu and ivona orzea, ‘emotional knowledge: the hidden part of the knowledge iceberg’, management dynamics in the knowledge economy (tritonic books, 2014), volume 2 at 41. ] i do …. find this class quite unsettling. …. for example, the pen exercise that we did this week; i think this was a really beneficial exercise to show that it is extremely difficult to communicate effectively with clients when there is so much built up inside them or ‘under the surface of the iceberg’ that we do not know about or understand. the exercise about the pen …….. (i) failed to understand that he may have been grieving the loss of his father and upset by the way in which the funeral home handled the funeral…. at this stage, class discussion included the simple practices we can adopt as lawyers to help identify and acknowledge emotion in our clients. these include being mindfully ‘present’ with the client, looking at them as they speak, listening to them carefully and asking considerate questions. research suggests that recognising emotional cues from clients can be as simple as noticing how they are behaving.[footnoteref:34] for example, according to gay gelhorn, noticing the first words uttered by the client can be very helpful: [34: jennnifer k robbenolt and jean r sternlight, psychology for lawyers (american bar association, 2012), 196] [c]lients demonstrated that they will reveal critical material as soon as they have an opportunity to speak . . . . these revelations sometimes occurred in the phase of an interview generally regarded as solely serving the purpose of putting the client at ease …often, interviewers are focused on themselves or make the assumption that nothing substantive is happening in this phase . . . . [t]he revelations most often were misheard (they often were sotto voce), or went unheard and unacknowledged[footnoteref:35] [35: gay gellhorn ‘law and language: an empirically-based model for the opening moments of client interview’ (1998) 4 clinical law review 321.] the intervention training included helping students consider using probing questions which might uncover their client’s emotional responses to their legal problem: what are your greatest fears regarding the outcome in this matter?’ if this case turns out to your advantage, how will it affect your life? if this case goes according to your worst case scenario, how will you be affected? managing emotion students watched videos of simulated legal interviews between clinical law students and actors in the role of clients. the videos were designed to activate the emotions of the students in a safe environment and to invite their thinking about how they might have conducted the interview in a real situation.[footnoteref:36] one video involved a female student interviewing a male client who was angry about an offer of settlement from the opposing party. the video depicted the law student repeatedly advising the client that ‘it’s a good offer’ and apparently ignoring the client’s rising anger and disappointment. the interview was designed to help the students explore ways the interviewer could have tried different strategies to connect with the client and to calm him sufficiently to hear and accept the advice. [36: there were 4 videos which were developed specifically for the course. each depicted a “typical client” scenario with a law student carrying out the interview. actors were hired as clients and 5th year law students performed the role of interviewer. a range of interview scenarios were devised which included one scenario played out 3 times with different questioning techniques designed to explore which techniques were the most effective in putting the client at ease and eliciting the most relevant information from the client.] class discussion included the interviewer’s response to the client’s anger. some students identified strongly with the student interviewer and some admired her tenacity: there were many aspects of the interviewer’s performance in the clip that i liked. she remained calm and focused on the advice that needed to be heard by the client. asking students to consider whether the interviewer could have changed her approach produce a range of reflections: i think she needs to actually acknowledge his concerns and then properly explain their position it was suggested in class that the interviewer could have made more acknowledgement of the client’s emotions. i think this was a really good suggestion …. students explored other techniques to reduce the impact of ‘bad news’ on the client or to deter or distract his rising anger in the first place, such as alternative ways of talking in order to prepare the client for disappointment. overall the videos helped the students think about related content in the seminars and class discussions, which improved their awareness of their own emotional responses: i noticed from the video the client repeatedly slammed his hands against the lawyer’s desk … [he] repeatedly did this to express his emotions in the hopes of communicating his point clearly. as this occurred my emotions were outraged to a certain extent. i felt as though this client should be more grateful for the hard work being exercised by his legal representative free of charge. to this extent i had some initial feelings of anger….. the seminars introduced the students not only to the advantages of emotional awareness in legal practice but also the problems emotions can cause if they are not well understood. we discussed the theory of ‘amygdala flooding’ and how intense emotions can prevent a client from being able to think clearly.[footnoteref:37] students were asked to imagine techniques they could use if the client was becoming too upset such as having a break to allow emotions to subside. [37: alternatively ‘amygdala hijacking’ as used by daniel goleman in emotional intelligence: why it can matter more than iq (1996).] i think the message about ‘pressing the pause button’ would be extremely useful in diffusing the situation. previously i would probably have been reluctant to do that as i would have worried that it would seem rude to the client. if done in a sympathetic manner, e.g. ‘would you like a glass of water’ or .. ‘let me get you a tissue’, this could be really effective in calming down the situation. in one exercise,[footnoteref:38] we divided the class into two rooms, and showed each group the same projected visual image of an abstract painting while exposing them to different music, either dissonant and irregular sounds, or gentle and soothing music. each group was then required to describe the picture. the group exposed to the soothing music used more positive and affirmative descriptions and generated more ideas about the painting than the other group. this led to discussion about how our workplace environment can impact clients’ emotions including their ability to cope with ‘bad news’. [38: this exercise was adapted from one presented by the langley group: diploma of positive psychology and wellbeing ] we also discussed mindfulness as a strategy to help students manage their own emotions. careful to distinguish it from any religious associations, mindfulness was presented as a practice to develop self-awareness, reduce anxiety and improve cognitive performance. several students acknowledged improved self-awareness as an important skill for legal practice, even if it meant accepting they were at an early stage of professional development: (before the intervention…) the only way i could cope was to stop caring, emotionally i had to switch off. even though i could recognise this, i was powerless to change it as i didn’t know any other way to reconcile my emotions … class discussion included the implications for the client of the interviewer ‘switching off’ when things got bad and what impact that could have on the professional relationship.[footnoteref:39] further discussion involved alternative strategies for managing stressful emotions during the interview, including acknowledging the feelings with the client, taking a break, getting support from a supervisor, and writing a reflection on the situation later. some students were aware of the psychological value of written reflections through journal keeping: [39: rudolph j. gerber, lawyers courts and professionalism (greenwood, 1989). paula j. manning, 'understanding the impact of inadequate feedback: a means to reduce law student psychological distress, increase motivation, and improve learning outcomes' (2013) 43(2) cumberland law review 225] to deal with the emotional stress of dealing with unhappy clients and their problems, writing about how i feel would definitely help, as i already keep a diary daily, and have since 2004… near the end of the training, several students acknowledged how the discussions and reflections helped them understand they were not alone, and that as a lawyer it is acceptable to seek help if necessary to manage emotionally stressful situations: if as a lawyer you were coming into contact with situations of high emotion on a regular basis, it may be necessary to reach out to friends or qualified support people….it may be necessary to talk about your feelings especially if you begin to find them exhausting or particularly draining. d the research results responses from clients the control group in 2013 involved 116 returned client interview questionnaires, of which 15 were discounted[footnoteref:40], leaving 101 questionnaires for analysis. in the intervention group in 2014 there were 113 returned questionnaires of which 6 were discounted leaving 107 to be analysed. [40: questionnaires were discounted where the respondent had circled all the same numbers (when question 3 was reverse orientated) or had failed to complete the questionnaire at all.] qualitative analysis the qualitative analysis drew from the comments of the participating clients and students in order to identify themes, patterns and significant experiences and insights that might improve the clinical teaching, professional supervision and organisation of the clinical legal practice. not every client took the opportunity to answer the qualitative responses in the questionnaire (the ‘improvement question’ and the ‘explanation question’). clients in both years referred to similar interviewing skills or qualities in their interviewing students, which they appreciated. they referred to the importance of the interviewer ‘listening’ to them (this was mentioned many times), showing ‘empathy’ towards them and demonstrating ‘professionalism’ (although this was not defined by the clients). many also commented upon the ‘appearance’ of the interviewer. some clients particularly noticed whether or not the student smiled suggesting at least some clients appreciated a degree of friendliness or positive affect by the interviewer. for example: perhaps a bit of a smile and friendly engagement in between serious attentiveness and concentration – not a biggy good eye contact, and listening skills but detached slightly not friendly but was unjudgmental may be smiling would help? deadpan face more smiles! very efficient they should practice more in getting the interview into an easier situation by a bit of a smile or show some enthusiasm on what the topic and problem is about… several clients referred to the ‘complexity’ of their problem, suggesting their difficulty in explaining it to a student and their need to be seen as unique or special. they were attentive and showed understanding and seemed to have a reasonable grasp of a complicated and uncommon situation …this is a very lengthy case and very very complicated situation that the students came into contact with honestly my matter is quite complex. it need to be broken down and i don’t know how to do it i had many issues, too big for one session ….complicated matter and the student did a good job of giving understanding to solicitor, it was clear that meet with solicitor too complex part of our analysis involved categorising clients’ responses to each question as ‘positive’, ‘negative’ ‘mixed’ or ‘neutral’. for example, a suggestion that the student could improve as an interviewer was coded as a negative response whilst a suggestion that the students had no need to improve was coded as positive. examples of positive responses included: i thought the student reasoned well and has a good manner. they were attentive and showed understanding and seemed to have a reasonable grasp of a complicated and uncommon situation; i thought the students interviewing strategies were well developed and no need for improving at this time examples of ‘negative’ responses were: not sure of relevance with case but didn’t ask too much about my life in general which may have some underlying influence/support to defend my case; when relaying summarising needs to ensure that it is correctly relayed or it can come across as being vague/disinterested client responses suggesting students were good but improvement was still needed were assessed as mixed responses, such as: (the student) showed a great listening skill and communication but probably forgot to summarise what we discussed other than that seemed genuine some answers were categorised as “neutral” such as: “satisfied in general but student did not have time to explain to solicitor as they just came in” the ‘improvement question’ (suggestions from the client on how the student could improve) is shown in figure 2 with percentages for the five categories. figure 2. numbers of clients who provided positive, negative, mixed or neutral responses to the ‘improvement question’. the ‘explanation question’ (where the clients gave an explanation for some of their answers in the questionnaire) were similarly coded and the percentage results are shown in figure 3. figure 3. numbers of clients who provided positive, negative, mixed or neutral responses to the ‘explanation question’. the participant numbers are not large enough for statistical significance however the indicating trends suggested the intervention group (2014) conducted interviews that produced more positive responses from clients than did the control group (2013). qualitative responses from supervisors and students the questionnaires for students and for supervisors also invited qualitative responses. however only a few supervisors and students took the time to complete this section, and few answers adequately addressed the issues to assist the research aims. the central focus of the students and supervisors was understandably on assisting the clients with their real, and sometimes urgent, legal problems. the quantitative responses – results the quantitative responses from the clients’ questionnaires over both years were entered into an excel database and forwarded to a consultant who performed a statistical analysis looking for relationships between the control and intervention groups to evidence significant differences that could have resulted from the intervention . while there were some particular questions which trended towards significance, overall, despite using different tests, there was insufficient statistical evidence to support the hypothesis.[footnoteref:41] [41: the consultant’s analysis is available for inspection on request.] results of the steu test as mentioned above, the steu test is designed to measure one aspect of ei, the ability to understand emotion. we asked every student in the control group and the intervention group to take the steu test before the research began and after the research ended. there was no significant difference in the students before and after the research in either the control group or the intervention group. in addition, the difference between the control and intervention group at both times was not statistically significant. there are several reasons for a null result in the steu test. first, the steu test is relatively simple compared with the msceit which is more extensive and therefore likely to be more sensitive to changes in a cohort. second, the intervention might have not elicited changes in emotional capacity of the students in the intervention group that could be detected by the steu test, although there were significant beneficial changes in those students identified in the qualitative assessment described below. thirdly, as discussed in the limitations, the numbers used in both groups were very small compared with numbers often used for quantitative research comparing before and after results. discussion: student reflections on their learning despite the lack of statistical significance, the qualitative findings from the student reflections suggest the intervention group gained significant benefits in their training in terms of increasing their ei awareness and abilities. for many students this involved a difficult transition where they were confronted with the need to reconsider their presumptions, for example that a client’s narratives will always be consistent: .. when, i found out that this other information that did not fit into her story, i actually felt a little betrayed. this weird sense of betrayal brought on a reluctance to work on her case this type of confrontation helped some students to grapple with their own self-concept, being able to adjust and be more flexible in how they presumed clients would see them: this encounter also encouraged me to really ‘get over myself’ and realise that as an interviewing lawyer sometimes you are going to have to accept that clients may be unable to communicate completely respectfully. in such a circumstance, i now feel that it is more important to engage with the client and not expect endless amounts of respect. several students were able to articulate their experience of change and development as a result of events during an interview. at this point in the interview i noticed myself becoming acutely aware of my feelings and my body language. i extended my lean forward towards the client in an effort build rapport and provide some comfort. however, reflecting on the lecture ….it was an effort to conceal my own insecurity and estrangement from the situation. ….i felt helpless … others reflected on their acquired belief in the importance of emotional regulation and how to appear when conducting a client interview: i recognised that it was in the best interests of the [client] that i look engaged and that it was my duty to be composed. along with the change in my physical body language i adopted a softer voice in my questioning and became increasingly conscious of the timing of any sensitive questions… many students described how they were able to determine the emotional states of their clients at different stages of the interview, and reflect on what that might mean for their developing practice as a lawyer: you could actually see the comprehension on the client’s face, and though she was not overly happy with some of the things she was told, her relief was apparent… the client came in visibly anxious with an edge of anger or possibly frustration. … the client’s speech .. was rushed and pointed… sat hunched with their arms crossed and spoke quickly in a loud and impatient manner, ending most sentences with a rhetorical question…. this led to a change in the emotions of the client from anger to sadness and resignation as the speech slowed down and grew softer whilst the body language was more slouched and defeated. in terms of dealing with or responding to emotions, some students showed they had understood the theories of emotions we had discussed in the seminars and were motivated to practice strategies likely to develop their emotional competencies. i was very conscious of my body language making sure i was leaning forward, giving eye contact and trying to be as sincere as i could at particular times (i found this difficult as my clients emotions spiked quite radically so i was never certain of exactly how to respond to things she said) portraying active listening at all times…. several students distinguished their genuine feelings from the feelings they wanted to project to the client, noticing the differences were not always significant or relevant and they could often be emotionally sincere and professionally responsible: i wanted to make sure that i portrayed to her that i understood how tough it must have been. although i did feel genuine empathy for her as her situation was really unfair. i wanted to make sure that she knew that i understood her. i thought back to some of the skills that we had been taught over the last two weeks. some students focused on technique, and detailed how their interview methods seemed to affect the client and the communication flow: i let her talk until it seemed like she had got everything out before i started asking questions. i kept eye contact and leant forward. …i found that in taking the time to show respect for the client’s emotions helped us to communicate better …. other students had more challenging interviews where the client was particularly emotional. often in these cases, the student used the reflection process to augment their development with ideas on alternative strategies that might result in better interviews in similar cases in future: her tone was also dismissive, and every time i or someone else at the table tried to steer the conversation back towards the actual legal issue, (she) kept trying to cuss out and be negative about y’s conduct as if she was trying to get to us to agree that y was a bad person. i feel that i probably could have used a different way of questioning or talking to her in a way that both allowed her to get it off her chest but also moved our time on productively. overall, the opportunity for the students to develop through their reflections on their live-client interviews in the context of the incremental training on emotional competencies through the seminars was the most valuable part of the intervention. the supervisors responded personally to each reflection to help ensure students felt encouraged, and more informed about the importance of emotions in legal practice broadly, not only in client interviews. conclusion this project sought to develop and apply a method of enhancing students’ emotional competency and to test whether teaching ei competencies to law students in a clinical legal setting would measurably enhance the clients’ experiences of their first interview. whilst our quantitative data was inconclusive, the qualitative findings were sound and provided insights into the value of ei competency training for law students. these results can be used to enhance professional development training in clinical programs and form a basis for future research. the reflection journals evidenced that many students improved their understanding and developed abilities during the intervention training, including their abilities to notice and reflect on their clients’ emotional responses as well as their own. the project supports the embedding of ei competency training into clinical legal education or professional legal training programs in a more sustained manner to improve students’ professional development and abilities to work with clients effectively and empathetically. e limitations the research was conducted during a busy legal clinic, which was not suited for a research project. of necessity, the research had to be conducted over two years using different cohorts of students and clients, the 2013 student cohort as the “control” group and the 2014 student cohort as the intervention group. while both student groups had similar characteristics in terms of gender break-up, age and education level, we could not control for personality differences (likely to have significant effects in small cohorts) or law school programing and interview scheduling differences. similarly, uncontrollable differences in personality of client and types of case in each year meant that small differences might have significant effects when using low numbers. a significant structural limitation here was that in 2013 more than one student interviewed the client, in fact up to three students were in the interview room with the client, whilst in 2014 only one student interviewed the client in most cases. this was an unavoidable product of university scheduling. any difference in the 2014 group as a result of the intervention training was, according to the statistical consultant, ‘masked’ by the effects of those students conducting interviews alone, compared with the team-based interviews in 2013. further, the overall sample sizes were small using data from just over 100 interviews in each year, which made it difficult to reach significant results. for statistical difference, future research needs to consider a design that collects from more interviews, with more students in a single clinical program, ideally over the same period. the control group could be offered the intervention training after the research period. finally, we could not control for the participant bias from the clients’ apparent willingness to please, indicated by some giving positive answers to all questions. it is possible that clients attending a free clinic with young nervous students were not inclined to criticise the students’ performance, despite being informed of the confidentiality of their responses and the value of the research to the students’ professional training. it is also possible some clients were getting legal advice for the first time in their life and could not compare the experience of the interview with anything in order to assess the student’s performance. some clients, for example, used the questionnaire to praise their student rather than provide useful information: a wonderful service, i felt my situation was validated and handled in a professional matter. thank you. i feel that the whole experience was of a great assistance to me it helped me to feel more at tease with the situation many thanks to the students who participated in the interview. just keep it up future research this project has several implications for future research that seeks to measure the effects of interventions designed to improve the emotional capacity of legal clinic students. if future research adopts a comparative analysis using a control groups as undertaken here, care should be taken to ensure the nature of the clinic situation under focus – here the client interviews – are comparable in structure. as stated above this problem was outside the control of the researchers in this study and produced a limitation to the results. the researchers believe that clients’ experiences are important and should be included in future studies, however researchers should identify methods that minimise the effects of participant bias. specifically, we would urge caution about using surveys as part of the methodology. the conflicting factors of the clients’ emotions, especially their anger, sadness, fear and confusion surrounding their legal case, and their gratitude and willingness to help the clinic students are likely to interfere with the accuracy of their surveys. a viable alternative might be inviting clients to be interviewed by researchers after being interviewed by the student, even though that would raise the problem of participant bias – upset or highly emotional clients would probably not agree to participate, and others might agree for fear of not seeming appreciative of the free legal help. capturing a richer, more nuanced and more accurate picture of the clients’ experience of the student interview is a challenge particularly when the chief concern of a working clinic is to provide a legal service, modelling best practice including client care and confidentiality. the authors suggest that inviting clients to attend a focus group meeting in a relaxed setting, where the research questions could be explored more thoroughly, is worth considering if the participant bias can be adequately addressed. positive 2013 2014 46 68 negative 2013 2014 28 12 mixed 2013 2014 7.0000000000000007e-2 0.04 neutral 2013 2014 18 0.08 positive 2013 2014 50 62.5 negative 2013 2014 26 30 mixed 2013 2014 18 0.05 neutral 2013 2014 0.5 2.5000000000000001e-2 53 the role of [clinical] legal education in legal reform in the people’s republic of china: chicken, egg – or fox? jay pottenger china has a long and sophisticated “legal” history. this makes commenting upon it a daunting and humbling task, particularly for someone like me, who comes from a nation with only a fairly short and (relatively) straight-line story by comparison. nonetheless, i shall begin by attempting both to describe the current situation in the people’s republic of china and to place it in some historical context. china’s current project of building a “rule of law” society began in earnest only about 25 years ago, after 20 years of what most have called a lawless society. just how “lawless” was the prc from the 1957 anti-rightist campaign through the end of the cultural revolution? most reports say that virtually no legal education took place, with the total number of lawyers in the country hovering between 2500 and 3000, and only two law schools even nominally “open” (albeit without active faculty or students). even the ministry of justice was abolished for that whole twenty-year period. some courts continued to operate for criminal law enforcement purposes, but there was no functioning “legal order” to speak of for two decades. in some ways, though, this period of a legal vacuum amidst social turmoil was not so unusual as westerners might suspect, for the dominant strand in historical chinese tradition is itself deeply “negative” toward a formal ordering of society by means of law and legal process. for confucians, the best way to achieve social order was not via “the fa” (a systematic set of laws, attaching standard rewards or, more commonly, punishments to particular behaviours) but through “the li” (a set of rules of behaviour and rituals teaching propriety in social relations, usually shown by exemplary conduct of those dutybound to set such examples for others). until the last two decades of imperial rule, therefore, chinese society managed rather well, thank you, without a formal legal profession and, thus, no system of legal education either. even as a legal the role of [clinical] legal education in legal reform in the people’s republic of china: chicken, egg – or fox? 65 *this paper formed the basis for a presentation and discussion at the first international conference on clinical legal education. jay pottenger is the nathan baker clinical professor of law at yale university, usa and an attorney. profession began to develop in the late qing dynasty (circa the 1890’s) and its successor republic, however, there was a clear instrumentalist motive: to strengthen the ruling regimes hold on power by deploying “law” in support of authority (and power). this harked back to the ancient legalist philosophical tradition in china, which competed with confucianism by arguing that positive laws of universal applicability and applied coercively were essential to the successful ordering of the imperial state. the ongoing debate between these two philosophies still shapes and frames contemporary discussions about the role of law in chinese society on both popular and scholarly levels. reduced to what is admittedly a rather simplistic example (and thus twisted so badly out-of-shape as perhaps to be useless), a key feature of this debate is about how the law is to be applied at the highest level of the state: is the ruler subject to the law? this is an issue my english audience will recognise as having arisen here fairly recently, in the context of the queen’s ambiguous role in the paul burrell trial. it was also, of course, at the heart of the legal dimensions to both the clinton and nixon presidencies in the united states. so perhaps these deep doubts about the role & rule of law are not so unique to china after all. let me return to china’s current efforts to build a stronger legal system, including one for legal education. as of 1978, there were about 2,500 practicing lawyers in the whole of the people’s republic of china; that number has been exploding at an almost geometric pace, such that there were about 11,000 in 1984; 45,000 by 1992; 90,000 by 1996, and well over 150,000 today. in february of last year 360,000 candidates sat the first “unified” bar exam in china; they were seeking entrance into either a legal or a judicial career. most were disappointed though, as only about 25,000 (under 7%) passed. despite such tough tests, china added more new lawyers during just the last half-decade of the 20th century than comprise the total number of current law practitioners in germany, france, belgium, the netherlands and denmark – combined! many people, even (or particularly?) in the united states, would not necessarily describe this as a positive development. but it represents china’s recognition of the vital role that legally trained individuals have come to play in a modern economy – even a “socialist” market economy. here i will digress (briefly, i promise) to explore why this is so. i do so because the answer should shed light on the nature, purpose and function of legal education in such a modern, and especially in a modernising, socialist market economy. as china has been moving from a planned toward a more market-oriented economy, the need for individuals (and individual enterprises) to structure the terms and conditions on which they interact with others increases markedly. so, too, does their need for legal guidance and advice, particularly as the social and economic context in which they are acting is itself also changing; these needs are even more pronounced where, as in china, these changes are quite considerably loosening and opening up the scope for such varied economic activity, and rapidly so. to meet these sorts of challenges, legal personnel will need to be able to problem-solve on an entirely new scale, for they will have to apply and adapt a shifting set of legal directives in a dynamic, rapidly evolving factual context. not only that, they will have to exercise these new skills in social roles which are themselves brand new and also undergoing dramatic, essentially constant change. mastering the law, even if it (once) were possible, is simply not enough for success in such an environment. rather, legal training needs to equip its students, whether at university or an on-the-job stage, both to “think like a lawyer” and to “act” like one too. it is this dual function of legal education, the mixing of theory and practice, the combination of action and reflection in (and on) role, which clinical methodology most effectively meets. because clinical legal education requires teachers and students to solve real client problems together, by 66 journal of clinical legal education july 2004 developing facts, applying (or, often, creating) theory, exercising judgment and learning from these efforts, it has a great deal of promise in a society like china today. but how realistic are the prospects for its adoption? what are the opportunities and obstacles? to answer these questions we need first to know where chinese legal education is today and where it has been. barely a century old, formal legal education has already been through several wrenching changes, and so combines an interesting mix of influences and styles. against the backdrop of two millennia of debate between the confucian and legalist traditions, china’s earliest efforts at developing “western style” systems of law and legal education drew most heavily on japan’s adaptation of continental (especially german) civil law models. although these were supplemented with some (mostly american) common law influences during the republican period, most of this was swept away and replaced with soviet-style legal arrangements between the 1949 revolution and the two decades of legal chaos that began fewer than ten years later. during the early 1950’s, however, china did establish a handful of new legal training schools, the “institutes of law and politics”, which were founded (at least in design) to combine theory with practice in building a socialist legal system, which would serve the state’s interests by furthering the economic and social development of the masses. since 1978 the goals for legal education have expanded alongside the enhanced role envisioned for law itself. from setting a minimal framework for the maintenance of social order, the duties expected of “the law” have grown to include facilitating the construction of a socialist market economy and, even, to the awesome responsibility of actually “governing the country” according to its dictates. not surprisingly, therefore, the legal and legal educational systems have changed as dramatically as they have grown. from two only nominally operating law schools and at most about sixty even potentially qualified law professors in the entire nation (circa 1978), the legal education sector today includes roughly 300 institutions, enrolling well over 150,000 students a year and staffed by over 3,500 professors (and another 8–10 thousand lecturers). a majority of these students are candidates for degrees, but there are also tens of thousands of additional trainees – many holding government jobs in the courts, procurate (prosecution) or ministries – who attend part-time or inservice programs designed to strengthen their legal knowledge and abilities. this is not surprising, since the ranks of these law-related institutions have swollen at least as rapidly as have the profession and its educational sector, and many of these staffers (or cadres) were recruited into their jobs despite having little, usually no, legal training whatsoever. as of 1985, for example, fewer than 8% of the nearly 50,000 judges even had a college degree. their workloads have, of course, also expanded geometrically. for example, between 1990 and 1997 the number of civil lawsuits nearly doubled (to three and a quarter million dispositions annually), while the subset which included “economic cases” (mostly contract disputes) rose by 150%, to 1.5 million each year. the criminal law docket also increased apace; by now the annual number of formal dispositions well exceeds two million, pushed through by a large (and still growing) procurate, which employs perhaps 250,00 staff as lawyers, investigators, and administrative personnel. it is into this huge, and still rapidly expanding, maw of law that clinical legal education is now beginning to venture. and only beginning it is, since barely a dozen university-based law schools are experimenting with clinical methodology, and the total number of students who have been taught in this way during the three years of clinical programs has not quite reached one thousand. but what a wonderful thousand they are! let me turn now to describing this experimental effort by setting forth both its brief history and current state. the role of [clinical] legal education in legal reform in the people’s republic of china: chicken, egg – or fox? 67 the source of clinical legal education in china must be identified as the committee on legal education exchange with china (cleec). operating with ford foundation support from the early 1980’s to the late 1990’s, cleec brought 219 chinese scholars to the u.s; about one-third of them were degree candidates. over two-thirds of these scholars returned to china, which is a high yield relative to other academic fields and considering the turbulent times involved; half of these returnees (i.e. over a hundred) remained in legal education. cleec also trained hundreds of legal educators and government officials through its in-country summer programs. cleec alumni have gone on to become the deans at several top chinese law schools (currently qinghua, fudan and wuhan); top university administrators at beida, huadong and jilin universities; and several currently serve as vice-presidents of the supreme people’s court. others have highly responsible posts at the chinese academy of social sciences law institute, as well as in several ministries and local, regional and national legislatures. one of these cleec alumni (from yale law school, of course) returned home to wuhan, where he established the first legal aid centre in the people’s republic. although he is now in beijing (on the supreme people’s court), his centre for the protection of the rights of the disadvantaged celebrated its tenth anniversary last year. during that decade the centre has advised over 30,000 clients; responded to over 20,000 letters and 30,000 phone calls; and handled over 1,500 cases. it has also presented scores of “street law” advice sessions and involved over 500 law student volunteers in its endeavours. the centre has grown to where it now boasts over a dozen staff, many of whom are also faculty at wuhan’s famous law school. although there were no formal curricular links between the centre and the law school until recently, when wuhan became one of the first chinese law schools to award academic credit for casework performed at the centre (in conjunction with a new faculty-taught clinical course), there is no doubt that wuhan was the pioneer for clinical methodology in china. the formal clinical initiative was not launched until 1999, however, when the ford foundation began to work with students at fudan and huadong universities (both in shanghai) who had set up volunteer, extra-curricular legal aid organisations. the project gathered speed with a lecture tour to six university law schools that fall; at each school a presentation on clinical methodology was made to interested faculty and administrators, with extensive follow up by ford’s in-china staff. by the spring of 2000, seven law schools (three in beijing and two each in shanghai and wuhan) had agreed to launch clinics the following academic year (on ford’s rmb, of course). a ten-day training program was held at the yale law school, followed by an extended august conference in wuhan (one of the famous “furnace cities” of china). that fall saw all seven schools begin their experiment with clinical legal education. each school developed its own design, reflecting the interests and aspirations of the faculty who had decided to participate. thus, qinghua began with a mediation clinic focused on consumer complaints, while renda chose to make criminal work the top priority for its faculty and students, although they have been willing to handle civil matters as well. wuhan chose to deepen and strengthen the school’s ties to the existing centre, while zhongnan decided to do civil tort cases. fudan, beida and huadong decided to accept a variety of general legal aid cases. ford required at a minimum, that at least two of a school’s regular teaching law faculty commit to at least a full year’s pilot project with a clinic (albeit always on only a part-time basis because of their other teaching duties). in the end several schools had three or four regular faculty involved from the outset; renda also enlisted a handful of local judges. several schools even put their senior faculty with decanal rank on this 68 journal of clinical legal education july 2004 exciting new clinical project, while beida instead assigned the project to a young administrator with no faculty rank or other teaching duties. student enrolments that first year ranged from twenty at qinghua up to thirty each term (sixty in all) at renda. while several schools (notably renda) enrolled mostly undergraduate students, others sought a mix that that included many seeking advanced degrees. in its second year of operations, the clinical initiative expanded to ten schools funded with ford money as zhongshan, xibei and chuanda began programs in guangzhou, xian, and chengdu, respectively. each of these new schools had its own focus: labour rights at zhongshan; elder law (especially legislative work) at xibei; and criminal defence in chengdu. enrollments stabilised at the existing programs, with wuhan joining renda at thirty new students each term while the others ranged from twenty up to forty new students a year. each school also decided for itself how the new clinic would fit into its overall curriculum, so that qinghua and several other schools tilted their selection process toward students pursuing graduate degrees, while renda and zhongnan particularly aimed at third-year undergraduates. qinghua also opened a new labour rights clinic (adding a fourth faculty member in the process), while zhongnan and beida both redesigned their initial plans. beida added additional part-time, adjunct teachers to its “general” legal aid clinic, and created a “community law clinic” designed to work with village authorities to popularise the rule of law in qianxi town of hebei province. zhongnan restructured into several “clinics” and “units”, reflecting its decision to accept a more diverse range of civil matters. by the end of year two, therefore, the ten schools boasted over 400 enrolled students and well over 50 faculty participating for between a quarter and two-thirds of their teaching loads. today the initiative is in the process of adding additional schools and new clinics at existing programs, as well as establishing its independence, both structural and financial, from the ford foundation. yunda (in kunmin) has opened a clinic and will be added to ford’s funding list for next year. jungfa may join as the fourth beijing law school, and, thereby bring its existing centre for the protection of the environment into the school’s mainstream, clinical curriculum. further, hwnam normal (in guangzhou) and law schools in shandong and hunan also have begun experimenting with faculty-supervised legal aid clinics. both the ministries of justice and education have been following these clinical experiments with interest, particularly as they offer some promise as a supplement to the growing (but still woefully inadequate to meet demand) number and capacity of legal aid programs around the country. several schools with existing clinical programs also are expanding their range of offerings, their capacity, or both. qinghua, for example, began a civil rights clinic this year; it is specialising in administrative litigation cases referred by the “china reform” organisation and a local beijing tv station. xibei (in xian) is adding both elderly litigation and general civil clinics to its existing legislative clinic; with four new faculty also being added, the school expects to double its enrollment to over 150 clinic students per year. perhaps most significantly, however, clinical faculty from the participating schools met and formed their own new organisation at last summer’s training conference in zhuhai. now formally known as the china clinical legal education committee (cclec), and set up under the auspices of the legal education institute (part of the prestigious chinese academy of social sciences), the cclec will be funded by a lump sum transfer of about one million u.s dollars from the ford foundation, and thereafter it will take over funding of all training, travel, “foreign expert” and new initiatives grants. the individual school’s direct budgets for clinical work (of about $50,000 (u.s) the role of [clinical] legal education in legal reform in the people’s republic of china: chicken, egg – or fox? 69 apiece, including primarily faculty salaries and administrative expenses) will continue to be funded directly by ford for another two years, however. [aside: these figures seem a bit paltry when contrasted to the multi-million dollar sums ford allocated to the council for legal education in professional responsibility (cleper), and the ten-year time frame on which it operated, at the time clinical legal education was launched in the u.s.a. over thirty years ago]. the new committee’s assumption of financial responsibility also marks the transfer of project oversight responsibilities from ford to the chinese clinicians themselves. already they have hired an administrator of their own to replace the ford staff. one further piece of this still-unfolding story should be mentioned: the role of so-called “foreign experts”. we have been quite fortunate in having assembled a superb group of u.s clinical teachers and law schools to work on this exciting project. experienced clinical teachers from columbia, georgetown, nyu, cuny and george washington universities have joined me and my yale colleagues in helping to design and implement a series of training conferences and extended site visits on both sides of the pacific. four series of “spring visits” have been held in the u.s, with chinese clinical teachers staying for about a week at their “partner school’s” clinical program, followed by a two-day wrapup conference for participants from all the u.s and chinese schools. alternate-year summer conferences have been held in the prc for both groups, featuring a mix of teaching and lawyering training, leavened with the inevitable combo of practice and theory. the u.s partner schools have also visited their chinese counterparts on one or more occasions, to get a better sense of how the new clinics are actually functioning. opportunities to observe clinic students “perform” in court, at an arbitration or mediation, and with clients (and one another) have been an important part of these site visits. although ford has paid the lion’s share of project expenses (including translation for these exchanges), the u.s faculty have all donated their time, and the u.s schools have themselves picked up the tabs for portions of the inevitable travel, hosting and administrative expenses. there has also been another aspect of these exchanges, because the yale-china association has established a law teaching fellowship program, and these fellows have played important roles in launching (and assisting) the nascent clinical programs at their host law schools. now entering its fourth year, this fellowship has sent six fellows to four different schools, where each has combined academic and clinical teaching. now for the fun part: a few cases. this discussion will be briefer than i would have liked, however, because any extended discussion of cases would demand so much context that my talk might never end... first, the ‘criminal defence’ clinics at renda and chuanda have taken quite different routes. almost all of the renda cases have been efforts to reopen old cases in an attempt to overturn convictions. although “new evidence” is allowed in these proceedings, it generally must be documentary in nature; this means that most of the work is put into investigating, shaping and drafting the petitioning party’s statements which are submitted with these appeals. one successful appeal (and unusually so, since they usually lose these cases) concerned the conviction over fifteen years before of three brothers who were fishermen in wa city. after serving their multi-year sentences for stealing fish and equipment, the brothers sought the clinic’s help in establishing they had been framed by the local public security bureau and their competitors, and that their “confessions” had been extracted by means of police brutality. evidence (on paper) was presented, including pictures of broken facial bones, bloodied (apparently) by the local police chief, with whom the brothers already had an extended history of conflicts and disputes. even though that 70 journal of clinical legal education july 2004 policemen had since been promoted, and the court personnel accordingly tried to dissuade the students from taking this case, the students nonetheless persisted and located a witness who claimed actually to have observed the police beatings. the court issued a not guilty verdict for the three brothers over 17 years after the events in question, and the brothers also obtained state compensation for their wrongful imprisonment. in sichuan, by contrast, the clinical teachers have been able to persuade three local courts to refer an occasional pending criminal case to the clinic. the judges have been reluctant to do so, however, because it means much more work for them if the defendant actually exercises his or her right to counsel. nonetheless, the students and teachers handled more than a dozen such cases last year, including several robberies and larcenies and a number of sentence-reduction applications. most of the clients have been convicted nonetheless, but the clinic’s presence has had the salutary effect of forcing the courts actually to follow their own, official procedures – which are said to be often ignored. one ongoing obstacle has been the difficulty in the students gaining permission to visit the clients while they are in custody. but the local court and public security bureau have now agreed to allow such access, provided the supervising lawyer also goes along. on the civil side, a couple of the labour law and administrative litigation cases will illustrate the sorts of matters students have been handling, as will the home repair cases which have cropped up in clinics in several different cities. one case involved a minivan driver whose van was seized by a stateowned taxi company because they claimed he had been operating illegally (i.e. without a taxi license). the client claimed he had been tricked and beaten into signing an untrue confession to such unlicensed taxi operations. in fact, he said all he really did was drive for a delivery company, handling materials and packages – not people! the students succeeded in persuading the local city bureau charged with overseeing this industry that the records “showing” such taxi work were falsified, and that the driver’s confession had been coerced. as a result, his 10,000-yuan (about $1,250.00 u.s, or £800) penalty was purged and his minivan ordered to be returned by the taxi company (which had confiscated it until the penalty was paid). one interesting feature of this case was that it was “won” at the administrative bureau, without filing suit, but only after favourable coverage of the case in the local media, and (even then) nearly two months after the minivan had been confiscated. labour cases involving unpaid wages were likewise usually won at the arbitration tribunal stage. one, though, went to the district court, where the students won due to what they described (in a surprised tone!) as a “wonderful” and “very capable” judge. perhaps significantly, the press had been called in to generate publicity (and pressure) in this case as well. finally, several schools’ new clinics handled cases involving defective home repairs. in virtually every case, there were factual disputes between the parties as well as fundamental disagreements about the terms of contracts they had all supposedly agreed upon. these cases tested the students’ understanding of contract law and their ability to interpret real contracts, as well as their “negotiation” skills—even though the cases often arose with the students supposedly acting in the mediator role. nearly all these cases ended up in a compromise agreement, usually weighted in favour of the contractors; in the so-called consumer mediation clinic, in fact, the students sometimes found themselves trying to persuade the consumers to accept an offer well below what had been their stated objectives for the mediation process. these mediation clinic students exhibited some rather deep confusion over their role in these cases: were they “representing” or “assisting” the consumer/complaints? were they helping the consumer protection agency (out of the role of [clinical] legal education in legal reform in the people’s republic of china: chicken, egg – or fox? 71 whose offices they were working) to resolve cases brought to it? was their “success” measured by achieving an agreement? in similar home repair cases in “litigation” clinics in other cities, although there was less role confusion, the students still found themselves “judging their clients’” versions of events and then pressuring them to accept a compromise settlement. just like an american lawyer operating in the ethical grey zone... now for a little analysis. but only a bit because i want to leave time for discussion and your analysis. first, to answer some of the questions posed in the call for the international conference: yes! in other words, i believe that the unfolding story of clinical legal education in the people’s republic of china shows why several of the central questions posed must be answered in the affirmative – certainly, this experience has persuaded me that law teachers do have a role in global legal education, and that exporting clinics can be a key part of that role. my discussions with chinese students and faculty about their clinical experiences have repeatedly turned to the impact this work is having on both of their views about justice, law and legal education. almost universally they have credited their clinical work with strengthening their own (and the others in their clinic’s) “spirit of justice” and “sense of social duty”. this has happened partly because of the service nature of lawyering on behalf of a real client, and even more significantly because their clients have taught them new and important lessons about the social reality of life in the new china. again and again, students report that their clients’ and their own exposure to officialdom and bureaucracy have enabled them “to see the truth” about chinese society and its legal system. their teachers have said the same thing too. so i think there can be little doubt that “justice” can be furthered through such clinical legal education, and not just for the client or her individual case. indeed, the experiences of several schools’ clinics demonstrate that valuable synergies with local courts, procurators and other governmental agencies can be built at the local, grass-roots level as part of starting up a new clinical program. such developments may serve to “open up” otherwise (or usually) closed (even, “secret”) processes and settings to what americans sometimes call the disinfecting powers of sunlight. surely the pressure and participation of students and faculty at least improve the quality of the process that our clinics’ clients are subjected to, even if the actual outcomes change less frequently. in fact, our clinics have been getting official cooperation at the highest levels; if only the u.n. weapons inspectors had been treated as well, there might have been no intervention in iraq. the mention of military power takes me to my penultimate point: the ‘rule of law’ can only be truly achieved when words have power. china has made great progress toward this goal in the past quarter century, for power in the prc today does not only come from the barrel of a gun. too often, however, power now flows instead from the size of one’s wallet. one way to measure how close a society, a legal system have come toward the ‘rule of law’ is to see what that society truly thinks about the ‘role of law’. it is for this reason, then, that education and scholarship about professional responsibility, about the roles of legal actors, is so crucial. the ford foundation launched clinical methodology in the u.s. in large measure to try to foster and improve teaching and learning in this vital subject. yet it is also here that international expertise, that foreign experts, must tread most carefully. one lesson that my chinese colleagues have driven home politely, but quite clearly, is that the addition of “chinese characteristics” to clinical methodology is most crucial, most delicate in the area of legal ethics and professional responsibility. none of them gainsays its importance, its centrality to the mission of clinical education. but all emphasise that they must find their own path through this extensive minefield. 72 journal of clinical legal education july 2004 it will not be a short, nor an easy, path. after all, while it may take ten years to grow a tree, it takes a hundred to rear a person. i remain convinced, though, that confucius had it right when he praised clinical legal education: what i hear, i forget. what i hear and see, i remember a little. what i hear, see and do, i acquire some knowledge and skill. what i hear, see, do and discuss with another, i begin to understand. thank you for your patience. the clinical initiative: developing a context for teaching professional responsibility in china. it is well accepted within the clinical legal education movement in the united states that teaching and learning “professional responsibility” is at the very heart of our mission. that was what the ford foundation set out to achieve, and it has remained front and centre to this day. even those who espouse the gospels of “skills training” or “justice education” would agree with me on this point. (indeed, each might claim that their special focus is actually a subset of the broader field of professional responsibility). our core commitment to teaching professional responsibility, however, does not eliminate curricular and pedagogical choice – far from it. rather, because the topic is so rich, the problems and issues so varied, it really only begins the processes of clinic design and course planning. at least four broad pedagogical goals may be balanced: ● fostering professional values ● clarifying role duties ● raising level of practice ● critique of reality and reform this is true of any clinical course involving the representation of real clients in actual cases. no matter how narrowly focussed or intensively staffed the clinic may be, there is more “professional responsibility” to be taught than time allows. so it is essential to understand the contexts in which the clinic will operate in order to select, sharpen and maximise the learning opportunities. this need to contextualise is, if anything, even more crucial in a trans-national setting. certainly, it is more difficult. so i plan to put all of you to work, helping me get outside of my “american skin”, and working together to develop some strategies for instruction in professional responsibility in the people’s republic of china. of course, you’ll need some context yourselves, even to essay this task, so i have provided a short piece on the clinical initiative. more helpful, perhaps, i’ve also created a brief (under 5 pages) appendix, which includes (a) 15 key sections of the “lawyers law” of the prc, and (b) 25 “questions about professional responsibility” posed by clinic students at renmin (people’s) university in beijing. the 25 questions were developed at the end of the students’ (mostly undergraduates completing their third year) clinical course, for possible use at an international training conference. (don’t worry that i’ve left out sections of the the role of [clinical] legal education in legal reform in the people’s republic of china: chicken, egg – or fox? 73 lawyers law that would answer several of the students questions; this is not a graded assessment.) i am more interested in your reactions to the questions, and to the “lawyer’s law” itself, because both tell us a great deal about the current climate in chinese legal and legal educational circles. what are those messages? several of the most important, in my view, concern their deeply ambivalent sense (at least in translation) of the legal system, and the lawyer’s role in it. the lawyers law states that a “lawyer” is someone who “provides legal services to the public” (article 2) – but who does so “subject to the supervision of the state, society and the parties concerned”. (article 3) the very idea that lawyers serve the public (i.e. private individuals and entities) is new to china. after all, the previous version of the lawyers law, promulgated a few years after the end of the cultural revolution, defined lawyers as “legal workers for the state”. in fact, the vast majority of law-trained persons in china today are still state employees. so are most of those holding law licenses, and nearly all who work regularly in the legal system. moreover, most of the 38 sections of the lawyers law i have not provided to you set forth the extensive web of continued state regulation over the legal profession, through constraints on licensing, practice organisations, bar associations and discipline. so even a “lawyer” in private practice in today’s china is in an odd sort of legal limbo, partly a private-sector, economic and social actor but partly still a servant of society – and the state. although this dual set of responsibilities also exists in the u.s. (and u.k) – indeed, is inherent in the lawyer’s role – the relative novelty of the private, independent dimension in china has important, and oddly contradictory, consequences. it has bred, on the one hand, a strongly private, commercial (i.e. money-oriented) ethos, which is quite consistent with the general society’s “getrich-quick” spirit so widely observed and reported at home and abroad. to law students at top chinese universities, private law practice is all about making money – a great deal of money – and little else. on the other hand, the ongoing active involvement of the state in the affairs of the legal profession (again, as is the case throughout society) generates a continuing circumspection among many lawyers about “public law” activities, including those involving challenges to governmental authority (particularly criminal defence work) or, even, building professional independence. both the lawyers law and the students’ questions also highlight the still-undefined nature of the private lawyer’s role. as the questions confirm, the general, hortatory language in the law (not at all atypical of such sets of rules in any land or language) raises more questions than it resolves. how does one “base himself on facts” while taking “law as the criterion” (article 3)? what are the practical implications of the lawyers duty “to play a positive role” in developing “the socialist legal system” (article 1)? (emphasis added.) but the students’ concerns illustrate how much seems still to be open and unsettled – at least in their admittedly somewhat naive eyes. the tensions within the lawyer’s role are illustrated by their concern over both the “high risks” of some criminal defence work (question 9), and the “illegal or immoral” aspects of the duty to represent “clients’ private interests” (questions 16 & 17, among others). perhaps most worrying, both documents also illustrate what observers agree is the biggest problem in china’s legal system: corruption. article 35 of the lawyers law explicitly forbids bribery, entertainment, and gift-giving to officials (subsection 4) or from opponents (subsection 2); it also restricts such payments from one’s own client (subsection 1). yet a third (or more) of the student questions involve the propriety of just such activities. why? because they are rampant – and the students know they are. this becomes even more of a problem when “improper” influence – 74 journal of clinical legal education july 2004 particularly of party or local officials – is added to the mix. how can one teach professional responsibility in such a climate? how should (and do) you handle this problem in cases (and with clients) in the course of your clinical work? one of the goals of late 19th century bar associations in the u.s was to combat corruption and improper influence peddling in the courts and councils of government. perhaps an independent bar, if one evolves in china, could serve a similar social function. but that day has not yet dawned. this leads to the last – i promise – of my points about professional responsibility teaching in the context of the new chinese clinical programs: the intriguing relationships they are evolving with the media. this fits into place here because their use of the media is part of the answer to the two questions posed above: by bringing the glare of publicity onto a clinic case, the risks of an adverse outcome due to corruption or misconduct is substantially diminished. interestingly, the lawyers law makes no explicit reference to the media, or its relationship to the legal and judicial systems. this omission stands in sharp contrast to the substantial (albeit rather ineffectual) attention paid to the “free press/fair trial” tensions in lawyers’ codes of conduct in the u.s. and britain. but the chinese rule forbidding a lawyer “to disrupt” a court “or interfere with” how litigation usually proceeds (article 35 (b) ) might be read to extend to a lawyer’s contacts with the media. or the state’s “supervision” could cover – and restrict, or ban – such activities. so the links several schools’ new legal clinics have developed with the media could turn out to be more risky than they have been heretofore. what these links demonstrate, though, is the widespread perception that the media possess the power to influence (and oversee) the legal system, at least to a limited extent. in a way, therefore, the clinics actually possess an advantage in the current legal and social climate, because they often have an ability to stimulate media attention not possessed by run-of-the-mill practitioners. while there are, of course, also quite substantial constraints (both economic and political) operating on the media, too, this partnership does offer one possible, albeit partial, “solution” to the twin spectres of corruption and improper influence – at least in some cases. now i’ll stop talking and start listening. i hope that these brief remarks, together with the appendix, will help stimulate a dialog among us about ways to approach the problems of teaching professional responsibility in these new clinical programs in china. thank you in advance for your help. the role of [clinical] legal education in legal reform in the people’s republic of china: chicken, egg – or fox? 75 appendix questions about professional responsibility from chinese clinical students: 1. should a lawyer perform her duty on the base of facts and in conformity with the law strictly as a judge does? 2. what is the proper choice for a lawyer if there are conflicts between clients’ interests and ethical principles? 3. must a lawyer be honest in the process of offering legal aid to her clients? can she produce lies in good faith? 4. is it possible for a lawyer to fulfil the entire client’s due requirements? if not, how should the lawyer do? 5. is it possible for a lawyer to employ special or unfair means to compete with other lawyers or with other legal service providers? 6. can a lawyer receive presents when she practices law? in what condition a lawyer is regarded as being disinterested and self disciplined? 7. should a lawyer work hard on all the expertise and service skills necessary for her practice? if the lawyer enhances her expertise through case by case method, does this mean she is not dedicated to her career? 8. can a lawyer enter into a client retainer agreement in her own name and without informing her law firm? 9. can a lawyer refuse legal aid to who is assigned by her law firm but cannot afford the fee? 10. can a lawyer refuse to defend for a defendant assigned by the court because of high risks? 11. if there are few cases in hand, can a lawyer privately enter into a retainer agreement in a case that has interest conflicts with cases in which she formally is acting or acted as attorney? 12. can a lawyer ask for or receive additional rewards or presents with remuneration nature (except normal lawyer’s fee) from her clients or anyone that has interests in the present case? 13. can a lawyer embezzle or usurp the law firm’s business fees? 14. can a lawyer bribe judges, prosecutors, police arbitrators or other related official staff? can a lawyer induce or require her clients to do that? can she invite the above mentioned people to dinner or reimburse their bills? 15. can a lawyer bring the defendant’s relatives with her when she interviews with the defendant in a detention place? can the lawyer deliver letters, money or articles to the defendant at that time? or can she convey any information related to the instant case to the defendant at that time? 16. can a lawyer enter into a retainer agreement and provide service to her client, knowing that the client’s motive and behaviours are illegal or immoral or involved fraud? 17. can a lawyer make concessions without insisting on her principles just because of clients’ private interests? can she misinterpret the law so as to adjust the law to the client’s undue requirements? or can she teach her client the way to circumvent the law and prejudice the state’s interests and other citizen’s legal interests? 76 journal of clinical legal education july 2004 18. during the process of handling a case, can the lawyer delay her work or shrink her duties because of personal reasons? 19. can a lawyer, for the convenience of case handling, divulge her client’s information obtained during her service? (the information includes the client’s privacy or any facts and materials that the client does not want to reveal to the public). 20. can a lawyer exceed her delegated authority or utilise this authority to engage in activities unrelated to the case where her authority comes from, on the condition that she regards it as necessary but does not have any consent from the client? 21. when the opposite party and her lawyer carry out proper activities so as to perform their duties and defend their legal interests, can a lawyer interfere with or stop these activities if she feels they would do harm to her case? 22. when dealing with relationship with other lawyers, can a lawyer refuse to work with other lawyers in the same case, or even obstruct her client from retaining any other lawyer to work as a partner? 23. if there is any disagreement between lawyers in one case, can a lawyer or lawyers make decisions without notifying the client in advance? 24. can a lawyer utilise unfair means to compete in the legal practice market? such unfair means involve slandering other lawyers and law firms, providing free service with low price or even for free, offering commission to clients, presenting money or articles to clients, publicising oneself and repelling others by advertisement through mass media, boasting of her special relationship with the judicial agencies and so on. 25. can a lawyer help a non lawyer citizen to engage in legal practice under the title of lawyer? lawyers law of the people’s republic of china promulgation date: 2001 12 29 effective date: 2001 12 29 promulgation body: the standing committee of the national people’s congress status: effective adopted by the 19th session of the standing committee of the eighth national people’s congress promulgated by: order no 67 of the president of the people’s republic of china; revised by the 25th session of the standing committee of the ninth national people’s congress on 29th december 2001 chapter 21 general principles article 1 in order to improve the system governing lawyers, to ensure that lawyers practice according to the law, to standardise acts of lawyers, to safeguard the lawful rights and interests of parties, to ensure the correct implementation of law, and to enable lawyers to play a positive role in the development of the socialist legal system, this law is hereby enacted. the role of [clinical] legal education in legal reform in the people’s republic of china: chicken, egg – or fox? 77 article 2 the term ‘lawyer’ as referred to herein means a practitioner who has acquired a lawyer’s practice certificate pursuant to law and provides legal services to the public. article 3 in his practice, a lawyer must abide by the constitution and the law, and strictly observe lawyers’ professional ethics and practice discipline. in his practice, a lawyer must base himself of facts and take law as the criterion. practice by lawyers shall be subject to the supervision of the state, society and the parties concerned. lawful practice by lawyers shall be protected by law. article 4 the administrative department in charge of justice under the state council shall supervise and guide lawyers, law firms and bar associations in accordance with this law. chapter 4 business, rights, and obligations of practising lawyers article 25 a lawyer may engage in the following business: (1) to accept engagement by the citizens, legal persons or other organisations to act as legal counsel; (2) to accept authorisation by a party in a civil or administrative case to act as agent ad litem and participate in the proceedings; (3) to accept engagement by a criminal suspect in a criminal case to provide him with legal advice and represent him in filing a petition or charge or obtaining a guarantor pending trial; to accept authorisation by a criminal suspect or defendant or accept appointment by a people’s court to act for the defence; and to accept authorisation by a private prosecutor in a case of private prosecution or by the victim or his close relatives in case of publican prosecution to act as agent ad litem and participate in the proceedings; (4) to represent clients in filing petition in all types of litigation; (5) to accept authorisation by a party to participate in meditation and arbitration activities; (6) to accept authorisation by a party involved in non litigation legal matters to provide legal services; and (7) to answer inquiries regarding law and to represent clients in writing litigation documents and other documents regarding legal matters. 78 journal of clinical legal education july 2004 article 26 a lawyer acting as a legal counsel shall provide opinions regarding legal issues to the person who has engaged him, draft and review legal documents, act as agent to participate in litigation, mediation or arbitration activities, handle other legal matters authorised by the person who has engaged him, and protect the lawful rights and interests of the person who has engaged him. article 27 a lawyer acting as agent in litigation or non litigation legal matters shall, within the limits of authorisation, protect the lawful rights and interests of the client. article 28 a lawyer representing a defendant in a criminal case shall present, on the basis of facts and law, materials and arguments to prove that a criminal suspect is innocent or is less guilty than charged, or that his criminal responsibility should be reduced or relieved, in order to protect the lawful rights and interests of the criminal suspect or defendant. article 29 a client may refuse to be further defended or represented by a lawyer, and may authorise another lawyer to act in his defence or to represent him. after accepting authorisation, a lawyer shall not, without good reason, refuse to defend or represent a client however, if the matter authorised violates law, the client uses the service provided by the lawyer to engage in illegal activities or the client conceals facts, the lawyer shall have the right to refuse to defend or to represent the client. article 30 a lawyer participating in the litigation activities may, according to the provisions of procedure laws, collect and consult the materials pertaining to the case he is undertaking, meet and correspond with the person whose personal freedom is restricted, appear in court, participate in litigation, and enjoy other rights provided for in the procedure laws. when a lawyer acts as agent as litem or defend clients, his right to argue or present a defence shall be protected in accordance with the law. article 31 when undertaking legal matters, a lawyer may, with the consent of the relevant units or individuals, address inquiries to such units or individuals . article 32 in practice activities, a lawyer’s personal rights shall not be infringed. article 33 a lawyer shall keep confidential secrets of the state and commercial secrets of the parties concerned that he comes to know during his practice activities and shall not divulge the private affairs of the parties concerned. the role of [clinical] legal education in legal reform in the people’s republic of china: chicken, egg – or fox? 79 80 journal of clinical legal education july 2004 article 34 a lawyer shall not represent both parties involved in the same case. article 35 a lawyer shall not commit any of the following acts in his practice activities: (1) to accept authorisation privately, charge fees to the client privately, or accept money or things of value from the client; (2) to seek the disputed rights and interest of a party or accept money or things of value from the opposing party by taking advantage of providing legal services; (3) to meet with a judge, prosecutor, or arbitrator in violation of regulations; (4) to entertain and give gifts to a judge, prosecutor, arbitrator or other relevant working personnel or bribe them, or instigate or induce a party to bribe them. (5) to provide false evidence, conceal facts or intimidate or induce another with promise of gain to provide false evidence, conceal facts, or obstruct the opposing party’s lawful obtaining of evidence; or (6) to disrupt the order of a court or an arbitration tribunal, or interfere with the normal conduct of litigation or arbitration activities. four years of a romanian juridical clinic* 1998 – 2002 dr. romulus gidro1 and dr. veronica rebreanu2 1. introduction most of the jurists – no matter in which functions and places they are working now – will confirm that the theory which they learned in faculty was good to be known, but it was not enough for them to affirm their skills: they did not practice at all or not enough during their college years what really means to profess. and it is well known that learning anything is easier when the theory is applied into practice simultaneously. in the 1930s, one of the most important romanian professors in general theory of law, mircea djuvara, said that the law faculties were preparing the students only theoretically, without too much practice; this is why he considered that the theoretical preparation of the students was not enough, and said that a method should have been found to introduce them to practice as well, while they were still studying in college. in any profession one needs to be taught in order to practice it well. if you have to work with clay, with metal, with wood, cement etc., it takes some time to get some experience and to get used to the properties of the material and how to put into practice the theory about them. but being a jurist (a lawyer, a judge, a prosecutor, a law councilor for that matter) – is one of the professions which deals with the most sensible and perfidious of all materials: human mind. why human mind? because it is in our minds that the juridical conscience is created and then it is reflected in the way we think and, especially, in the way we put into practice our more or less legal thoughts. this is why, a respectable jurist must develop professional skills and combine them with the theoretical knowledge of objective law, positive law and substantial law, the way it is perceived, applied and followed or not by the people. 49 four years of a romanian juridical clinic 1998 – 2002 * the article refers to the period of time in which the authors were the coordinators of the clinical legal education course, from the very beginning, from the first negotiations till it was well equipped competing with a western juridical clinic course. 1 reader, “bogdan vod_” university baia mare and cluj-napoca, former member of the “babes-bolyai” university – faculty of law cluj-napoca. 2 senior lecturer, “babes-bolyai” university clujnapoca – faculty of law. more, a good jurist must be flexible, must be used to communicating and dealing with people who sometimes have no idea about the law, must have good skills for speaking in public etc. our target and mission as law teachers is to do our best in order to give the society well prepared jurists. how can we do that? by combining the theoretical disciplines with a practical approach, such as clinical courses. among other courses, as mr. stuckey was saying, “clinical education courses offer law students their first opportunities to discover firsthand how difficult is to be a professional lawyer”.3 based on our five years of experience, we would add that in the romanian system of law clinical education also shows how difficult it is to be a judge or a prosecutor. for sure, most of the readers of this article, if not all of them, already know what juridical clinic means and how is it organized and functioning in the american4 and british5, as well law faculties in other countries.6 the authors’ intention is to present a romanian juridical clinic, the way it has been functioning so far, the conditions we were offered when we set it up, what we achieved, the difficulties we were faced with, our reasons to be satisfied of what we have done, our regrets for what we couldn’t do, leaving to the generation to come the continuation of our work. 2. history long before aba came to romania with the proposal to introduce this discipline in the law faculties curricula, students from the law faculty cluj-napoca were familiar with the simulation of trials, though this wasn’t done in an official way, by transforming the civil procedure seminars in simulated trials by members of the staff; the students have experienced what it means to be a lawyer or a judge or a law councilor without having too much actual practice and with just a theoretical knowledge of the procedures. in these simulations the students were discovering the different roles of the participants in a trial such as: defendant, lawyer, prosecutor, judge etc. and also some of the “secrets” of the trials, which no professor can or has enough time to teach. all this could remain unknown to the students until they are graduates and start to practise. in the 1980s, this kind of simulation of a trial was experienced by romulus gidro, then a young assistant in civil procedure, and having had experience as a lawyer before coming to teach in the law faculty. aware of the difficulties he had had when he started practicing as a lawyer, mr. gidro started to simulate some civil trials – during the limited time offered by the seminars – and noticed that the students were more interested, more active, and acquired more information. this couldn’t have been achieved if the students had only the theoretical approach to the trials. being so pleased of the way students were learning by practicing the civil procedure, mr. gidro organized a simulated trial where he invited the academic staff of the faculty. everyone was amazed of the results and mr. gidro was encouraged to continue with this system doing seminars at civil procedure. more, the students’ marks at the end of the semester were better than expected and improved as compared with other years of study. 50 journal of clinical legal education august 2005 3 roy t. stuckey, “ensuring basic quality in clinical courses”, (2000) 1 international journal of clinical legal education, pp. 47–53. 4 philip g. schrag, “constructing a clinic”, vol. 3, nr. 1, fall (1996) clinical law review, pp. 175–244. 5 richard grimes, “learning law by doing law in the uk”, in (2000) 1 international journal of clinical legal education, pp. 54–57. 6 judith dickson, “clinical legal education in the 21st century: still educating for service?” in (2000) 1 international journal of clinical legal education, pp. 33–44. see also philip g. schrag, op.cit., supra, p. 244 referring to the eastern europe countries and the republics of the former soviet union. everyone considered this way of doing seminars a very good method of teaching procedures, but no one thought that it could be transformed into an academic discipline. mr. gidro was promoted as a lecturer; he started to teach roman law and labor law, and stopped holding seminars. in 1996, ms. rebreanu started her full time academic activity with seminars in civil procedure. without knowing anything about mr. gidro’s experience and good results in this field, she simulated the trials with the students and taught them how to make a court file with all the papers, declarations, written procedures etc. the results were obviously very good: better attendance by the students; the students were more interested in preparing for the trial simulation seminars; the marks were again very good; other members of the staff were amazed at he great interest of the students and also at the load of work the professor took upon himself – it is a lot more difficult to teach in an active way. 3. beginnings and further relations with the initiator – aba 1. in may 1997, between the dean of the law faculty – “babe_-bolyai” university cluj-napoca, prof.univ.dr. liviu pop, and an aba representant in bucharest, mr. lawrence albrecht – lawyer – a discussion took place about the introduction of the legal clinic course in the curricula of the faculty. the idea of simulating trials was not completely new in our faculty – as i mentioned before. assistants, lecturers were unofficially organized trial simulations to help students to better understand the procedures. but the novelty and, especially, the success of the discussion with mr. lawrence albrecht lay in the fact that we found a way to give an official character to the trial simulations, by introducing a new discipline of study: “juridical clinic”. starting with the second semester of the 1997–1998 academic year. 2. after mr. albrecht left romania, other aba members and representatives in romania paid regular visits to our faculty, to see in which stage we were and how we were getting on with the clinical legal education. as much as it was possible, we were invited to participate in international and romanian meetings on this subject organized by aba, and monitored by the aba representatives in bucharest, as follows: in january 1998, mr. gary marek visited our juridical clinic. during the time he was the aba representative in romania, we had the pleasure to be invited and to participate in the regional legal education workshop “strategies for implementing practical legal education programs”, which took place in opatija, croatia, march, 25–27, 1998. both coordinators from cluj-napoca law faculty, dr. gidro romulus and dr. rebreanu veronica, participated in this conference, where we met other coordinators of clinical legal education, from romania7 and from other academic centers in the south-east of europe. the participation to this conference was very helpful to us because it showed us that all the clinical legal education coordinators had almost the same questions and difficulties. also, we had the occasion to learn from other clinicians’ experience and to avoid making the beginners’ mistakes. 51 four years of a romanian juridical clinic 1998 – 2002 7 bucharest and timisoara. the next visit by an aba representative was in september 1998 when mrs. laura bucher, mr. gary marek’s successor, visited our faculty, together with professor rodney uphoff – from clinical legal education, oklahoma university. both were delighted with our juridical clinic room for simulating trials. we analysed the way our programme was developing and our way of implementing it was appreciated. they suggested a few ways in which we could make our programme functional and we put these into practice, as much as our legislation permitted it. in october 1998, prof. rodney uphoff visited our faculty again, when he presented the history of juridical clinic in the united states of america and the different types of juridiccal clinic which exist and function in usa. his talk had a greate impact over our staff and especially on the students: the number of those who chose this optional discipline was subsequently greater than the previous academic year, 1998–1999. mr. uphoff was very impressed by the great number of questions which proved that our students were extremely interested in knowing more about the discipline and about the common law system of law, which is very different from the romanian one. in may 1999, the aba representative organized in sibiu a romanian conference on clinical legal education, in which mr. gidro romulus participated. many written and video materials were given to us for our juridical clinic. the romanian experience in implementing this discipline was discussed and analysed. the aba representative in bucharest during 1999–2000 academic year was mrs. irene banias. she visited us in september 1999 and was satisfied with the way we implemented and adapted clinical legal education to our teaching system and our law system within the limits of the romanian laws. the last romanian meeting of the clinicians, organized by the aba representative in bucharest – mrs. irene banias, was in october 1999. unfortunately, none of the cluj-napoca coordinators were able to participate. the bucharest aba representatives sent us some written materials and video tapes, a few issues of the “clinical law review”.8 the cluj faculty of law made sustained efforts to ensure the infrastructure needed for the course: a special room arranged like a trial court room; a video recorder; a tv set; a video camera. 4. how it functioned once accepted and put into practice, this new discipline – even though an optional one – had a lot of success with the students and most of them have chosen it as the optional discipline. the members of the staff who were in charge of the implementation of clinical legal education were dr. romulus gidro and dr. veronica rebreanu. it is obvious why: because the dean knew their activity in this field and considered them the best qualified people to do it, instead of some other persons who did not experience at all the trial simulations. they organized it, kept in touch with the practitioners who helped us implement it. in the first two years, they also participated directly during courses and seminars until there a way of working with the students was formed. 52 journal of clinical legal education august 2005 8 they forgot to send us the number (1999) in which prof. rodney uphoff wrote an article in which he made some remarks about the romanian juridical clinics. prof. uphoff visited the cluj juridical clinic in 1998 and, although he showed himself very well impressed about our project and the way we just started to implement it officially, and the clinical law room was already arranged as a court room, what he wrote in the article was not reflecting our discussions. unfortunatelly, he did not understand that we had to adapt the juridical clinic course to romanian legislation and possibilities. 53 taking into consideration the coordinators’ proposal, the dean approved and supported us, to set up a special room for trial simulations, which was the exact replica of the real ones. this made the students feel very close to real trials, respectig the places of the participants and experiencing the official character of being a judge, a lawyer, a prosecutor etc. after this new course was integrated into the curricula of the faculty and having a special room for it, we paid a great deal of attention in organizing and developing this course. we kept in touch with the practitioners who agreed to help us and we were also attentive to supply it with suitable equipment so as to make it competitive with the western ones. right from the start, there was a lot of enthusiasm on both sides: that of the practitioners who still remembered how hard it had been for them at the beginning, when they had no idea of how to practise law. they immediately replied positively and proposed a lot of methods for working with the students; on the other hand, the students also replied positively by choosing this optional course. but too much enthusiasm in the beginning does not always bring immediate happiness! and we say that, having in mind the analysis of the discipline from the two perspectives: – firstly, soon after the meeting with the practitioners we were asked by some of them what their benefits were from the participation in this course (the only possibility to pay them was by the hour and in a state university the salaries are much lower than a lawyer gains mabey in one week; none of our colleagues which are also practicians aggreed to participate). the other question was if they had any chance of going to the usa!; – secondly, it cannot be denied the fact that most of the students have chosen this course wanting to acquire more information; these were prepared to work hard for that. but there were also students who came just thinking that they would manage somehow without working very hard and very seriously – this is why in the first two years we had more than 100 students per semester. yet it was not very easy for them to fulfil the professors’ requirement that each of them should complete a juridical file and have an active presence during the simulations. that made our mission very hard: on the one hand, because it is not too easy to work a certain number of hours with more than 100 students at each meeting. we had no possibility to increase the number of hours because nobody would have accepted to work without being pai. on the other hand, we had no possibility to stop them choosing this discipline. in this respect, we tried to find a way to select them, but none of our proposals was aggreed: upon jus as we could not make them choose an optional discipline, we cannot stop them choosing it. this was a “problem” for years, not only as far as “juridical clinic”. so, all our projects and ideas for finding ways to select the students for this course failed and we had to accept all the students who chose it as an optional discipline. as time settles everything, so it did with our course: in time, the offer for optional disciplines increased up to four and our students began to choose the other disciplines as well; during the last two years the number of students who have chosen our course was perfect, without causing any trouble and all the students could participate more during the simulations and express their skills for being a lawyer, judge, prosecutor etc. for teaching clinical legal education one must be entirely dedicated to it. i would consider this dedication from two points of view: four years of a romanian juridical clinic 1998 – 2002 – firstly, one must be dedicated in the sense of having the proper skills to show and introduce the students to that kind of knowledge. students must acquire the art of knowing how to react and deal and treat the people involved in a certain situation. we usually “steal” this knowledge attitude by observing our master, how he/she deals with delicate situations for which nobody prepares you in advance; even though most of the situations can be anticipated, we cannot expect to be told about all of them; – secondly, one must be dedicated in the sense of finding pleasure in teaching and initiating the students in the secrets and tricks of how to behave in simple simulated situations, so that later they should be able to be at their best in complicate and delicate or peculiar real situations or with difficult clients. 5. method of work the methods of work used in cluj-napoca juridical clinic were a combination between the “clinicians’” experience and the vision of the practitioners who helped us to develop this discipline. we also took into consideration what the students should know when finishing the faculty, in order not to be surprised by the practice, the way we were before them. students were given two cases: a civil one and a criminal one. they studied them and each of them chose a role in the civil trial and another one in the criminal trial. so everyone got a chance to be could have been judge, lawyer, prosecutor, clerk, even witness. it was established that every student participating in the juridical clinic course, no matter what role he had chosen, must have a complete court file with all the papers a trial file should have: the writ of summons, public prosecutor’s charge, the writ against smb., the proof by witness, other proofs according to the type of the trial, the minutes of the meeting, the sentence etc. the trials were simulated in a succession at the students’ request, irrespective of the order, so that they were able to get used with civil and criminal procedures. after one of the participants to the trial spoke, the trial was stopped and there followed observations, comments, completions, rectifications. this means that even though not all the students had the chance to be a lawyer, a prosecutor or a judge, at least they had the possibility to comment on others’ work and to contribute with the way they would have done the same “job”. especially in the last two years while the authors of this article worked as coordinators on this course, all the students in juridical clinic had the chance to participate directly in the simulated trials, having an active role: they were one of the participants to the trial in a certain role and also had the possibility to intervene with comments and suggestions about the way they were understood the trial and the doctrine as well. when the students have been marked, the following aspects have been taken into consideration: • the way the simulated file was completed with the procedural papers and the quality of their work; • each student’s contribution in the simulated trials – as participants or as “active public”, commenting and correcting the others’ activity; • the way they used the legislation, interpreting it and applying it correctly to the given cases; 54 journal of clinical legal education august 2005 • the way they knew how to do their research into jurisprudence and use it; • also, the way they showed interest in knowing and using the doctrine. at the beginning of the 2002–2003 academic year the best conditions were provided to continue teaching juridical clinic course: – there was a well-equipped court room; – there were a tv set, a video recorder, a camera and enough video cassettes. this means that this course could have been taught at a higher level than before and could have competed with any other western clinical legal education course.9 6. regrets during the five years when we worked as the coordinators of this course, there were several aspects which raised question marks, but some of them were eventually solved as time passed. with others we dealt by taking what we considered to be “the most rational decision” for the moment. we consider at least two of them worth being mentioned here. one of the first issues10 we had to deal with was to find a way of selecting the students for this course, without causing any inconvenience. this was hard to do because of various reasons. here are some of them: • it was an optional11 course – this means that theoretically we cannot obstruct the students to choose it in any way; we thought that any way to select them could be considered by the students a source of “injustice”, as long the course was optional; • in the beginning, the juridical clinic was taught for students in their 3rd and 4th year of study; in the third year of study, second semester, they were taught civil and criminal procedures, in parallel with our optional course. this meant we could not condition the choosing of the course by the marks they had to the disciplines we mentioned. neither could we condition their admittance by the marks the students obtained to other disciplines;12 • after two years, the course was restrained to the 4th year of study. the reason for this change was the students’ best interest: it was considered that in order to follow this course they needed 55 four years of a romanian juridical clinic 1998 – 2002 9 we knew that in usa juridical clinic courses it is used the system of recording the students’ performance on tape because we received such cassettes from aba. the idea of providing our juridical clinic course with a camera was strengthened during a visit in 2000 to the exeter university school of law where veronica rebreanu had the pleasure of exchanging some experience with the coordinator, at that time mrs. sue prince. she also participated in a simulation of a trial where the students were recorded on video tape with the camera and could observe their performance. 10 we refused to call them “problems” and preferred to consider them as being “issues”, thinking that we would soon find a way to answer them and make our job easier. 11 romanian curricula of the disciplines taught in faculties has three kind of courses: compulsory courses which every student has to pass; optional ones – there are several optional courses offered in any academic year for each year of study they are in and the students cannot be obstruct to choose one or another (sometimes some of these optional courses are not taught because the students did not choose them); facultative courses where they can participate or not, but the marks obtained to these disciplines are not taken into consideration for the credits. only the marks obtained at the compulsory and optional courses are taken into consideration for obtaining the scholarships, places in the campus, marks (credits) to pass in the following year of study etc. 12 sometimes students with low marks prove to be better practitioners than some of the best marked ones which, with time, prove to remain only good theoreticians. 56 journal of clinical legal education august 2005 to have some knowledge of civil and criminal procedures, instead of studying them in parallel; • the idea of selecting the students by their skills it was taken into consideration but the first reason came up again: optional course – anyone can choose it. this was one of the aspects which was solved by the passing of time: now four optional courses are offered in the first semester of the 4th year of study; students have been told what each course is about and the methods of work. they realized that if they are too many most of them will be only passive participants to the simulations and won’t have the occasion to show what they can really do. so, in a “spontaneous” way, we can say that everything was solved and in the academic years 2000/2001 and 2001/2002 the number of the students was perfect and covered exactly the number of the participants for the civil and the criminal simulated trials. the other issue we had to answer to was related to the name to be given to this course. some of the proposed names were: “juridical clinic”, “clinical law”, “legal clinic”, “clinical legal education”, ‘practical legal education”, “laboratory of legal education”, “experimental legal education”. the first three titles were proposed by the aba initiators and we decided to use the title juridical clinic. firstly, because we considered that this name could very well cover the methods used in simulating the trials, the juridical theory and the procedures students have to know and achieve during the course. secondly, it was a decision in which we took into consideration the aba initiators’ proposals. the fourth title, clinical legal education, is used in united kingdom law faculties. for some reason we avoided to use “legal education” because we considered this to refer to the whole period the students study in the law faculty they are legally educated. still, this possibility of changing the name into clinical legal education might be an option in the future. the last two titles resulted from a discussion about this course with the coordinators from timi_oara faculty of law (prof. dr. gheorghe mihai). we considered these proposals as being too technical, too close to engineering. two of our greatest regrets were: • that most of our colleagues who are also practitioners (lawyers, notaries, judges, prosecutors) avoided to get involved with some activity in this new discipline; • at the beginning of the academic year 2002–2003 our main collaborator could not continue to help us because of some objective reasons. both of the coordinators had to give up coordinating this course13 – even though now it was on the way of becoming even more interesting. we suggested that this discipline should be coordinated by members of the staff who are also practitioners. 13 each of them is teaching two disciplines: dr. romulus gidro is teaching labour law and social security law and dr. veronica rebreanu is teaching general theory of law and environmental law. 7. conclusion the cluj-napoca juridical clinic course presented above can undoubtedly be considered as a success from many points of view: from the initiators’ point of view because it was accepted and put into practice so soon and with a valuable collaboration between the bucharest aba representatives and the coordinators; from the students’ point of view because they had the occasion to simulate juridical practice according to the theoretical knowledge they had achieved; from the coordinators’ and practitioners’ point of view because is was a real pleasure to observe the students during this course, how, step by step, they became more skillful in one or another of the “juridical roles” they had chosen and doing it with so much pleasure and abnegation. 57 four years of a romanian juridical clinic 1998 – 2002 reviewed article 149 trauma-informed lawyering in the student legal clinic setting: increasing competence in trauma informed practice gemma smyth, dusty johnstone and jillian rogin, university of windsor, canada 1 introduction research in clinical law,2 critical legal studies,3 and therapeutic jurisprudence4 has spotlighted serious challenges that clients face when they encounter the law, particularly when they have experienced previous trauma. lawyers who fail to recognize and effectively respond to clients’ trauma may struggle to communicate, interpret narrative, and build trust – all of which are foundational to the lawyer-client relationship. trauma is common across human experience, with more than 70% of the general population reporting at least one traumatic life experience and 30% reporting 1 gemma smyth is associate professor and externship director at the faculty of law, university of windsor. dusty johnstone is the sexual misconduct response and prevention officer at the university of windsor; she holds a phd in applied social psychology. jillian rogin is clinic professor at the faculty of law, university of windsor. thank you to research assistants britney decosta, samantha hale, ilham islow, and taiwo onabolu, and to the clinicians and clinic students who agreed to participate in this project. 2 see for example: sarah buhler, ““don’t want to get exposed”: law’s violence and access to justice” (2017) 26:1 j l & soc pol’y 68.; sarah buhler, sarah marsden & gemma smyth, clinical law: practice, theory, and social justice advocacy (toronto: emond, 2016).; stephen wexler, “practicing law for poor people” (1970) 79:6 yale lj 1049.; austin sarat, “”the law is all over”: power, resistance and the legal consciousness of the welfare poor” (1990) 2:2 yale jl & human 343. 3 see for example patricia j williams, the alchemy of race and rights (cambridge, mass: harvard university press, 1991); derrick a bell, race, racism, and american law, 5th ed (new york: aspen publishers, 2005); patricia monture-angus, thunder in my soul (halifax, ns: fernwood publishing, 1995). 4 see for example, david b. wexler and bruce j. winick, essays in therapeutic jurisprudence (durham, nc: carolina academic press, 1991). reviewed article 150 four or more.5 although trauma is not a unique experience, it is experienced more often, and with greater impact, by people who are marginalized within dominant power structures. this makes trauma particularly relevant for lawyers who work with populations that are systematically marginalized, often in intersecting ways – as is the case for many clients who seek support from student legal aid clinics.6 drawing on a growing body of research on trauma informed approaches in lawyering, psychology, and pedagogy, the co-authors – two legal clinicians/academics and a social psychologist – developed and evaluated a trauma informed educational module for law students working in clinical law settings with clients experiencing low income. the impetus for this project was the observation that law students struggled to comprehend how their clients’ thoughts and behaviours could be psychosocial manifestations of trauma, and adapt their legal practice accordingly. to address this, we approached this work using the neurobiology of trauma as the pedagogical frame. our goal in using this framework was to provide a pathway to understanding trauma that was grounded in the hard sciences. we hoped that the relative indisputability of 5 corina benjet et al, “the epidemiology of traumatic event exposure worldwide: results from the world mental health survey consortium” (2016) 46:2 psychological medicine 327. 6 student legal aid clinics provide legal services in legal areas that disproportionately impact people living in poverty. students are supervised by practicing lawyers and typically work in clinics for pay or credit. in the model we are most familiar with, the clinic experience is accompanied by a class or other teaching and learning space that allows for substantive education on legal and client-facing issues as well as space for reflection and critical dialogue. the clinics in this survey represent client in the following legal areas: immigration and refugee, social benefits, criminal, and employment. reviewed article 151 basic brain functioning would offer an alternative narrative for clients’ sometimes confusing, challenging, and even self-defeating behaviours, thereby lessening victim blaming.7 we also attempted to avoid a purely deficit-based approach to legal practice in which clients’ trauma experiences result in “problem” behaviours; rather, we reframed these experiences as useful coping mechanisms that can require different approaches to lawyering. due to the realities of legal clinic schedules, the module is short and targeted for implementation in the context of students’ immediate needs. using open questions alongside a scenario, we evaluated this module through a pre and post-test analysis to assess how students interpreted client behaviour before and after receiving trauma informed training. before explaining the results of our analysis, we review the background to our work, including the relevant literature and theory that influenced this project. although we had quite a specific goal in mind, the results of this project demonstrate the potential wide-ranging benefits of trauma informed lawyering, and support its place as a central component of legal clinic training and practice. 7 these two examples are associated with trauma behaviours noted in m lynne jenkins, “teaching law students: lessening the potential effects of vicarious trauma” (2013) 37:1 man lj 383 at 407. see also lynette parker, “increasing law students’ effectiveness when representing traumatized clients: a case study of the katherine & george alexander community law center” (2007) 21 geo immigr lj 163 at 170, where the author notes that: “this avoidance [of trauma experiences] translates into missed appointments, chronic lateness, failure to produce requested documents, and avoidance of the law student’s questions.” jean koh peters and susan j bryant, “five habits for cross-cultural lawyering” in kimberly barret and william george, eds, race, culture, psychology and law, (thousand oaks, ca: sage publications inc., 2005) reviewed article 152 why neurobiology in the context of trauma training? we believe that what differentiates our approach to trauma informed lawyering is less about the method of delivery, and more about our decision to use the neurobiology of trauma as the theoretical and practical framework. we have personally found great insight and benefit in using the neurobiology of trauma in both clinical practice and in supporting survivors of sexual assault. our previous experiences and education taught us that neurobiology has much to offer when it comes to interpreting challenging and confusing behaviour. for example, it reveals that our bodily responses to trauma are often inverse to our expectations about what should happen when trauma occurs. we hypothesized that perhaps a neurobiological framework could have the same effect in a clinical legal context. we had two primary goals in teaching the neurobiology of trauma. the first was to explain, in simple terms, the brain structures and neurochemicals that are active during traumatic events. the second was to explain the subsequent effect these have on cognitive functioning both during and after a traumatic event. for example, we sought to address the interplay between our brains and memory when we experience reviewed article 153 trauma, given the degree to which client success is often determined by perceptions of recall accuracy and credibility. as lynette parker notes, [c]lients who have experienced trauma also have difficulty during trial preparation, exhibiting patterns of forgetfulness and avoidance. for example, the client may have difficulty remembering specific facts or incidents, either because he has blocked the events or because discussing the events forces him to re-live the traumatic experiences, which the client wants to avoid.8 memory, particularly in the context of trauma, is complicated and can contravene our common-sense expectations – for example, we often expect that intense traumatic memories will be deeply encoded and easy to recall. although this is possible, it is often not the case. even at the best of times, regardless of whether a client has experienced significant trauma, memory is highly susceptible to influence. it can be affected by a confluence of factors, including the passage of time, and literature shows that consistency in recall and accuracy of recall are not necessarily correlated.9 for 8 parker, ibid at 171. 9 aileen oeberst, “if anything else comes to mind… better keep it to yourself? delayed recall is discrediting – unjustifiably” (2012) 36:4 l & human behaviour 266.; william j friedman, “memory for the time of past events” (1993) 113:1 psychological bulletin 44.; hilary evans cameron summarizes this research thus: “‘the consistent finding’, across all of the research to date, ‘is that after about 2 weeks, individuals have difficulty accurately dating their past experiences, suggesting that date of occurrence information is typically not retained in memory’ – and our trouble only increases as time passes ” in “refugee status determinations and the limits of memory” (2010) 22:4 intl j refugee l 469 at 471. reviewed article 154 people who are already psychologically vulnerable, the effects are even more marked.10 hilary evans cameron provides a helpful review of literature on memory for survivors of natural atrocities, genocide, and other traumatic events.11 she cites concentration camp survivors who were unable to accurately date when they were imprisoned, or even the season.12 memory is also susceptible to frequency bias. if we can remember an event, we tend to report that it happened frequently, and humans often confuse how frequently an event happened with how frequently they thought about it.13 recall of event duration is also usually inaccurate, depending on the context.14 for lawyers, the implications of memory research are troubling as so much of legal practice relies on the perceived accuracy of recall. psychological research has shown that the stories we are most likely to believe are the ones that are presented as clear, consistent, and chronological – and yet, ironically, this is at odds with the actual encoding of traumatic memory in the brain. the encoding of traumatic memories is 10 dr juliet cohen, “errors of recall and credibility: can omissions and discrepancies in successive statements reasonably be said to undermine credibility of testimony?” (2001) 69 medio-legal journal 25-34. 11 michael c hansen, “january 1986 northeastern ohio earthquake”, ohio geology newsletter (summer 1986) 2-5.; sven-åke christianson & birgitta hübinette, “hands up! a study of witnesses’ emotional reactions and memories associated with bank robberies” (1993) 7:5 applied cognitive psychology 365. 12 willem a wagenaar and jop groeneweg, “the memory of concentration camp survivors” (1990) 4:2 applied cognitive psychology 77. 13 gillian cohen and rosalind java, “memory for medical history: accuracy of recall” (1995) 9:4 applied cognitive psychology 273. 14 christopher db burt, “reconstruction of the duration of autobiographical events” (1992) 20:2 memory and cognition 124. reviewed article 155 fragmented and disorganized, particularly in the immediate aftermath of an event.15 the science of traumatic memory is contrary to the beliefs and expectations of inexperienced lawyers and students, who are likely to read confusion, and lack of clarity or linear thought as indicators of disingenuous behaviour or unreliability.16 we recognize that most lawyers do not have an extensive background in biology and a neurobiological framework has the potential to be abstract and overwhelming. we do believe, however, that when presented simply and tied to concrete examples it has the potential to challenge firmly held, stigmatizing beliefs about trauma survivors and their “problematic” behaviour, for example, when a client changes their story on the witness stand. the definition of trauma that we used in the module was influenced by working definitions that have been adopted by other legal clinics, as well as critical literature on the topic. sarah katz and deeya halder defined both trauma and traumatic event as follows: 15 jessica d payne et al, “the biopsychology of trauma and memory” in daniel reisberg & paula hertel, eds, series in affective science: memory and emotion (new york: oxford university press, 2004) 76. see for example joyce w lacy & craig el stark, “the neuroscience of memory: implications for the courtroom” (2013) 14:9 nature reviews 649. 16 see for example jean r sternlight & jennifer robbennolt, “good lawyers should be good psychologists: insights for interviewing and counseling clients” (2008) 23 ohio st j disp resol 437. the authors review common misconceptions that lawyers have about their clients premised on faulty assumptions about memory, perception, decision-making, and communication and review basic psychological principles relating to all of these phenomena. reviewed article 156 [a]n event is defined as traumatic when it renders an individual’s internal and external resources inadequate, making effective coping impossible. a traumatic experience occurs when an individual subjectively experiences a threat to life, bodily integrity or sanity.17 judith lewis herman emphasizes the relational elements of trauma, writing that “traumatic events overwhelm the ordinary systems of care that give people a sense of control, connection, and meaning.”18 trauma is both an experience and an ensuing, ongoing response to that experience. psychologist bonnie burstow has addressed the complexity and depth of this response, describing it as “[a] concrete physical, cognitive, affective, and spiritual response by individuals and communities to events and situations that are objectively traumatizing.”19 what is experienced as trauma, and the effect that it has on our bodies and behaviours, may be influenced by the developmental age of the victim, personal characteristics, and situated contextual factors including social, familial, economic, political, and other circumstances. trauma is not necessarily exclusive to a single isolated event, but can also develop as a consequence of daily experiences of racism, sexism, homophobia, transphobia, 17 sarah katz & deeya haldar, “the pedagogy of trauma informed lawyering” (2016) 22 clinical l rev 359 at 364. 18 judith lewis herman, trauma and recovery: the aftermath of violence – from domestic abuse to political terror (new york: basic books, 1992) at 33. 19 bonnie burstow, “toward a radical understanding of trauma and trauma work” (2003) 9:11 violence against women 1293 at 1304. reviewed article 157 ableism, and poverty. in this sense, trauma and traumatic events can include insidious experiences of systemic inequities including: …the daily awareness of the possibility of rape or assault, the daily struggles to stretch insufficient wages so that the family eats, encountering yet another building that is not wheelchair accessible, and seeing once again in people’s eyes that they do not find you fully human.20 trauma is inherently political as it occurs within circumstances that are inextricable from the political mediation of the contexts that propagate trauma. consequently, understanding the ways in which insidious trauma can work to produce traumatic stress requires an understanding of intersectionality and intersectional subordination.21 kimberly crenshaw describes intersectional subordination as something that: “need not be intentionally produced; in fact, it is frequently the consequence of the imposition of one burden that interacts with pre-existing vulnerabilities to create yet another dimension of disempowerment.”22 this concept of intersectionality is important in thinking about definitions of trauma, defining what constitutes a traumatic event, insidious trauma, and trauma informed approaches. 20 ibid at 1308. 21 kimberly crenshaw, “mapping the margins: intersectionality, identity politics, and violence against women of color” (1991) 43:6, stanford l rev 1241. 22 ibid at 1249. reviewed article 158 truly understanding trauma and the experience of trauma requires us to consider the specific life circumstances of the person subjected to it. in legal aid clinics where experiences of marginalization and oppression are inevitable, this is of particular importance. in fact, sara gold argues that lawyers working with people experiencing poverty “should presumptively adopt a trauma informed practice approach regardless of the subject matter of the representation.”23 legal aid clinics work with people in areas of law including criminal, social benefits, residential tenancies, criminal injuries, family, employment, human rights, and immigration and refugee.24 common to all clients is the lived experience of poverty. because of the intersectional nature of poverty, higher than average groups of clients are racialized, indigenous, sole support mothers, live with a disability, and/or have experienced abuse in many forms.25 some have experienced homelessness or are precariously or inappropriately housed. many are over-policed. the evident disparities and disempowerment experienced by legal clinic clientele due to trauma can confound and frustrate students, which makes key tenets of lawyer-client relationship building such as trust, empathy, and understanding difficult to establish. 23 sara gold, “trauma: what lurks beneath the surface” (2018) 24 clinical l rev 201 at 201. 24 here we are referencing legal aid clinics in ontario, the context within which two of the authors have worked. 25 see for example: canada, stop family violence: breaking the links between poverty and violence against women, prepared by jane gurr et al., (ottawa: public health agency of canada, 2008) online: https://www.canada.ca/en/public-health/services/health-promotion/stop-family-violence/preventionresource-centre/women/violence-against-women-resource-guide/reality-poverty-violence.html. https://www.canada.ca/en/public-health/services/health-promotion/stop-family-violence/prevention-resource-centre/women/violence-against-women-resource-guide/reality-poverty-violence.html https://www.canada.ca/en/public-health/services/health-promotion/stop-family-violence/prevention-resource-centre/women/violence-against-women-resource-guide/reality-poverty-violence.html reviewed article 159 our work was informed by other clinics that have introduced trauma informed practices. lynne jenkins, for example, described her experience introducing training on vicarious trauma to law students at the barbra schlifer clinic in toronto, canada, a legal aid clinic specializing in violence against women.26 we also learned from the katharine and george alexander community law centre (kgaclc) which has experimented with and tested a wide range of approaches to trauma informed lawyering.27 theory and approaches to trauma in psychology are vast and we cannot hope to meaningfully engage all of this literature. therefore, we relied on a “harm reduction” approach to client engagement in which we employed well-established findings in psychology to minimize harm to clients. our goal was twofold. first, we aimed to reduce the likelihood that student lawyers will blame future clients for the behaviours they exhibit, and, second, we aimed to reduce the likelihood that they will contribute to client revictimization. we also drew from positive psychology, which emphasizes the value of strengths-based approaches. we have found fault with methods that rely upon purely deficit-based approaches to working with clients, which we believe can lead to its own form of paternalistic treatment. in our module we emphasized that clients and communities who have experienced trauma are able to meaningfully 26 jenkins, supra note 8. 27 parker, supra note 7. reviewed article 160 engage with supports and should be recognized for their resiliency. after all, if they have made it to your office, they have survived. our work was informed by a particular approach to lawyering – namely, an antioppressive approach to practice that recognizes the individual and structural barriers inherent in systems of colonialism, patriarchy, racism, sexism, heterosexism, cisnormativity, ableism, classism, and ageism. we also attempted to construct a training curriculum with critical theory woven throughout. for example, we incorporated materials on institutions-as-trauma including residential schools and government income maintenance programs, immigration and other legal systems in which constant surveillance, scrutiny, and bureaucracy act as forms of trauma. trauma informed approaches trauma informed approaches are those that consider the potential breadth of a client’s experience and its differential effects on their behaviour. trauma informed approaches also urge lawyers to pay attention to their own experiences of trauma, be it direct or vicarious, as it relates to their client work. katz and halder write that [t]he hallmarks of trauma informed practice are when the practitioner, here a law student, puts the realities of clients’ trauma experience at the forefront in engaging reviewed article 161 with clients and adjusts the practice approach by the individual client’s trauma experience. trauma informed practice also encompasses the practitioner employing modes of self-care to counterbalance the effect the client’s trauma experience may have on the practitioner.28 becoming trauma informed means understanding how trauma occurs and its consequences, as well as being educated about the political context in which it has arisen. it means “…[b]eing educated about the impact of interpersonal and political violence and victimization on an individual’s life and development.”29 this means understanding the ways that gender, ability, class, sexual orientation, and racism, might intersect with trauma and how it is experienced and interpreted. in addition to the lawyer-client interaction, a trauma informed approach to client services “…acknowledges the prevalence and impact of trauma and attempts to create a sense of safety for all participants, whether or not they have a trauma-related diagnosis.”30 there are multiple ways trauma might manifest in the relationship between the client and the legal organization as a whole. ideally, a trauma informed approach must be undertaken holistically in order to try to ensure that everyone is working to create a safe atmosphere and do no further harm to clients. 28 katz & halder, supra note 17 at 361. 29 ibid at 369. 30 ibid., citing substance abuse and mental health services administration, essential components of trauma informed judicial practice (2013), online: samhsa <https://www.nasmhpd.org/sites/default/files/judgesessential_5%201%202013finaldraft.pdf> https://www.nasmhpd.org/sites/default/files/judgesessential_5%201%202013finaldraft.pdf reviewed article 162 methods we piloted the module on three occasions in three locations (toronto and windsor, ontario, and saskatoon, saskatchewan). participants at each location were law students in legal clinics. on each occasion we invited attendees to participate in the evaluation, which involved the completion of pre and post-test qualitative surveys comprised of open-ended questions, as well as a scenario analysis. we treated the responses to the qualitative survey as formative feedback and refined the module after each presentation. the overarching goal of the module was to increase competence in trauma informed practice and subsequently decrease the likelihood that student lawyers would, in the future, compound the existing trauma of their clients. this outcome, however, is methodologically challenging to measure. consequently, we made the decision to evaluate shifts in students’ beliefs and knowledge as a proxy for potential outcomes. specifically, we compared pre and post-test evaluations for an increased ability to identify client behaviours that may be indicative of prior traumatic experience. we also evaluated students’ ability to identify incidents and social structures that may exacerbate traumatic experiences.31 31 these goals are not dissimilar to the goals listed in jenkins’ article, “(1) to teach law students to identify clients who have been victims of trauma; (2) to provide students with techniques for effectively representing these clients; and (3) to teach students the concept of vicarious trauma and techniques for self-care.” jenkins, supra note 8 at 181. reviewed article 163 the purpose of the pre-test32 was to provide us with a base understanding of students’ experiences with clients to date, and to examine the apriori explanations they offered for client behaviour. we asked participants to provide examples of client interactions they found challenging and to reflect upon the source of these challenges. the questions were designed to assess whether students relied upon client-blaming narratives to explain client behaviour, as we hypothesized they would. participants were also asked to identify their own feelings and thoughts in response to their perceptions of client behaviour. finally, we asked participants to consider a hypothetical scenario with a client and offer an interpretation of the client’s behaviour and suggestions for how they would respond to this specific situation. in the post-test survey we assessed the participants’ overall perceptions of the training and, specifically, whether they perceived it to be an effective tool for understanding client behaviour. we also assessed whether the training was effective in teaching them to identify indicators of trauma and strategies for working with clients who have experienced trauma. we asked them to respond a second time to the hypothetical scenario from the pre-test. this allowed us to compare responses and determine whether the module was effective in providing students with a trauma informed analysis of client behaviour and strategies for working with clients. additionally, we asked questions that were intended to draw out students’ feelings about working with 32 see appendix a. reviewed article 164 clients who have experienced trauma, as well as questions about managing potential for vicarious trauma. participants were informed of the training and research by email and were contacted by a research assistant with an invitation to participate. it was explained that attendance at the training was mandatory, but participation in the research was voluntary. participants were provided with a link to the online pre-test evaluation, which they were required to complete prior to the beginning of the training session. following the training, the research assistant administered the post-test. participants who brought their laptops had the option of completing it online or they could complete a paper version. we have chosen to report the findings from two of the three sites. we excluded the data from the first administration of the module due to a low response rate and poorly detailed responses. the first time we delivered this training we asked participants to complete the pre-test survey online, in advance of the training, and many forgot to do it. following the training they were eager to take their short lunch break and rushed through their responses. subsequently, we adjusted the procedures and built in time at the beginning and end of the training to complete the evaluations and provided lunch. in total, the responses of 19 participants from two sites were included in the analysis. reviewed article 165 analysis responses to the qualitative survey and scenario analysis were subjected to both experiential and critical thematic analysis.33 experiential research takes the reported experiences and observations of the participant at face value and prioritizes their interpretation of events. for example, when we asked participants to identify challenging client behavior we were prioritizing their subjective experience of ‘challenging’ behaviour. we also analyzed the data critically, however, by interrogating the underlying meaning and assumptions in the responses. further, we looked for a shift in participants’ responses from pre to post-test and found an increase in their own critical analysis of their experiences with clients, which was consistent with the goals of the module. each of the three authors participated in the analysis. we followed the principles of thematic analysis which guide the researcher to become intimately familiar with the data. in the process of reading and re-reading we began coding the data by noting recurring observations and patterns that we subsequently organized into themes. once we had completed our individual analyses, we compared our findings and organized our themes. from this, we collectively determined the most salient themes and assigned labels to describe the them. major themes identified include the 33 virginia braun and victoria clarke, “using thematic analysis in psychology” (2006) 3:2 qualitative research in psychology 77. reviewed article 166 following: shifting from emotion-driven, hesitant responses [to clients] to confident, strategic responses; increased empathy and perspective taking vis a vis neurobiology; and concern for how to implement trauma informed practice given the practical constraints of most clinic settings. pre-test findings the pre-test findings confirmed that students experienced many encounters with their clients to be frustrating. frustration arose from multiple sources including: the client not being forthcoming with information; client anger with the legal system and the legal process; clients’ unrealistic and unmanageable expectations; a lack of trust in the law student; clients missing multiple meetings and not prioritizing their legal matter; and a general lack of cooperation. the students attributed their frustration to the behaviour of the client, as opposed to stemming from their approach to working with the client. in other words, students engaged in what can be described as “client-blaming” in their description of their own frustrations with the encounter. encapsulating all of these themes, two students remarked as follows: [c]lient would not follow procedures and became frustrated when they did not attain the results they were looking for.34 34 pre-test survey at 5. reviewed article 167 [c]lient was very rude and did not appreciate the time the lawyers and students were putting into their file. she wanted to be treated as if she was the only client to the clinic and was frustrated that her turn around rate on her matter was not within a day or two (but rather was taking weeks – this was a complicated matter).35 the student participants’ responses suggested that they struggled to empathize with the clients’ perspectives and offer non-blaming explanations for frustrating client behaviours. the student participants demonstrated a consistent presumption that clients should be able to behave reasonably, rationally, and comprehend bureaucratic delays and limitations. it was evident that the students had expectations about what constituted reasonable client behaviour. for example, clients were often deemed unreasonable if they engaged in behaviour or sought remedies that were not aligned with what the student lawyer believed to be the best course of action. one student described their experience working with client settlements as, i had some clients who frustrated me because their egos got in the way of finding a solution. their pride and need to "win" the dispute made it impossible to reach a settlement, even if the settlement was in the client's best interest. 36 35 pre-test survey at 5. 36 pre-test survey at 18. reviewed article 168 when clients failed to act in the expected ways, students also attributed the behaviour to the difficult nature of the client. in the example above the student determined that the clients’ actions were self-defeating and attributed them to the client’s ego. the student lawyers frequently failed to recognize the inaccessibility of legal procedures as being relevant in their client interactions. when asked about interactions with clients that evoked frustration one student complained of a client, “not understanding the limits of the law and not willing to compromise expectations.”37 the majority of students did not reflect on their own part in the lawyer-client relationship, nor the role of the legal system. interestingly, in analyzing the problems described by students the researchers found many possible explanations for client behaviours besides trauma. nonetheless, trauma informed training was ultimately still useful in combating biases and assumptions regarding clients’ behaviour beyond those traditionally attributable to trauma. the student lawyers also demonstrated a tendency to perceive their clients as disingenuous and this perception took multiple forms. assessment of client credibility was imbued with insinuations and explicit suggestions that the client was lying, not being forthcoming, or changing their story. responses focused again on the client and 37 pre-test survey at 18. reviewed article 169 their motivations for lying or not telling the whole truth. one student remarked that they interpreted a client to be disingenuous when, a client [was] just telling me what i want to hear… not the truth… [it] frustrated [me] because they are hurting themselves in the long run and wasting my time.38 in this vein, when the students were unable to glean linear stories from their clients, or received accounts that contained internal contradictions, they often questioned the credibility of the client rather than reflecting upon the context and their relationship with the client. one student commented, [o]ften times i had to take down details of events that happened. when the details start to contradict too much or have too many holes, that’s when i start questioning the client’s claims.39 while research participants did not commonly describe their clients as “lying” to them (indeed, some were at pains to avoid this term), they provided considerable detail illustrating the perception that the client exaggerated, embellished, or provided 38 pre-test survey at 19. 39 pre-test survey at 19. reviewed article 170 inconsistent accounts in order to gain a particular outcome. as one student remarked, “i’ve never felt that clients were lying, but somewhat exaggerating or embellishing their stories to gain refugee status.”40 students also interpreted the client as being disingenuous when the client focused on “non-legal” issues and attributed the inability of the client to ‘focus’ on the client’s ulterior motive. students had difficulty conceptualizing the relevance and breadth of the “non-legal” elements that pervade the lawyer-client relationship and are essential to their role in supporting clients. as one student described: where after [a] year of service and no progress, it seemed the client was simply interested in socializing or looking for an outlet to share their troubles, rather than seek the services we provided. [i] felt a bit trapped, as we could not dismiss the client outright, yet we weren’t able to fully commit to a resolution because there was little we could do to resolve it.41 as this quote indicates, students grappled with the divide between what they perceived as legally relevant and what was relevant to the client. the relevance of 40 pre-test survey at 22. 41 pre-test survey at 19. reviewed article 171 building rapport and trust was often absent from student descriptions of encounters with clients that were outside the scope of “legal” support. another example being a student describing a frustrating encounter as follows: [t]he client was very agitated, and the information he shared that was not related to his case was concerning. at the beginning i felt very overwhelmed by the client. [n]ot sure how to react o[r] take the information that he shared about other individuals that had nothing to do with his case.42 student lawyers seemed to expect that clients would have the capacity to discern what was “legally” relevant and what was a “non-legal” issue. the student lawyers were left exasperated when clients would not adhere to this distinction and would seek support for issues that the students perceived as being beyond the scope of assistance they could provide. the student lawyers struggled to comprehend the multi-faceted nature of their role in supporting and referring clients. to better assess the pre-training attitudes and thought processes of students regarding their client interactions, we provided a hypothetical scenario describing a client, aisha, (outlined in full in appendix b) who engages in behaviours that could be 42 pre-test survey at 6. reviewed article 172 perceived as frustrating, confusing, or unusual. in responding to the scenario, the student lawyers demonstrated some empathy for the aisha’s circumstances, but the focus of the frustration was still directed towards her. the students generally recognized that aisha was in distress but were less clear about the source of the distress and what to do about it. some participants felt the best approach was to emphasize to aisha why they were questioning her, in hopes of greater cooperation. students described feeling frustrated, fearful, concerned, and nervous in their evaluation of the hypothetical encounter with aisha. the pre-test responses to the hypothetical scenario and open-ended questions indicated that students often felt unsure about how to respond to a client’s behaviour. many students felt at a loss about the role of emotion in their client encounters – both their own emotions and those of the client. one respondent noted that “[t]he biggest red flag is when a person is questioned about a detail or problem and all of their responses are about emotions and not the facts.”43 the student here dichotomizes emotion and legal facts, not understanding that the two may be interrelated and, indeed, a source of useful information rather than a ‘red flag’. the pre-tests further highlighted ways in which student lawyers misunderstand clients’ emotional responses to serious trauma. they were often unsure of how to respond when a client 43 pre-test survey at 19. reviewed article 173 exhibited an unexpected or seemingly unsuitable response to serious trauma – such as laughing, being quiet, or having a neutral expression. the data suggested that the students felt ill-equipped to manage their own emotional responses to client trauma, and to set appropriate boundaries. one student remarked that “i have often wanted to cry and did everything to hold it back because it did not feel appropriate.”44 the student lawyers revealed that they did not feel equipped to respond to appropriately respond to client disclosures of trauma, which exacerbated the struggle to manage their own potential vicarious trauma. a need for an increase in proper training was a resounding theme across student responses, noted by one student as follows: [c]ertainly, clients have had to recount [past] incidences of their own violence against others, or the feeling of having their children threatened with sexual violence. the emotions these stories provoke in my clients are incredibly difficult to respond to appropriately for me given my obvious youth and lack of proper training.45 44 pre-test survey at 20. 45 pre-test survey at 20. reviewed article 174 the pre-test findings highlighted that ‘client blaming’ behaviour was central to students’ interpretations of difficult client interactions and that students often felt illequipped in their ability to adequately respond to clients’ needs. the need for trauma informed training in law clinic settings was undeniably evident from student’s pretest evaluations. the researchers hypothesized that using evidence-based trauma informed training could begin to fill this need and would provide students with alternative explanations that would increase empathy and understanding. beyond building law students’ capacity to understand the impacts of trauma, the training module was developed to provide tangible strategies for supporting clients through the legal process with sensitivity to manifestations of trauma and the skills to manage potential impacts of vicarious trauma. post-test findings our post-test findings indicated that research participants overwhelmingly felt that the training module was effective, and indicated willingness to implement trauma informed practice in their work. most students found that the module was a valuable supplement to their work and that the tips and strategies discussed were relevant and helpful. many students commented on the usefulness of the neurobiological framework of the training. they also noted the value of the discussions around client interviewing and that the emphasis on being attentive to the reviewed article 175 individual experience of the client was helpful. in relation to the usefulness of the training one student indicated the importance of: [b]eing able to identify barriers to collecting information (i.e. recall and memory issues, certain behaviours) and working with clients to overcome those barriers so that they can tell their story.46 the post-test findings highlighted a number of common themes including: a complete shift from a client-blaming approach to an inward focus on making adjustments to the method of lawyering. the student lawyers identified specific strategies that they felt would help them cope with client trauma and be more effective in their practice. these included rapport building, grounding, breathing, and drawing the client in, which reflected a substantial shift in how the student lawyers focused their attention and perceived the task at hand. the students focused less on “what needs to get done”, including obtaining an “accurate set of facts”, and instead focused on seeing each client as an individual whom they needed to work with and support in order to build and maintain a working lawyer-client relationship. there was less of a dichotomy present in separating ‘legal’ and ‘non-legal’ issues and more of a recognition that providing support to a legal client is a holistic and incremental process. 46 post-test survey at 6. reviewed article 176 the student lawyers also showed an increase in their own sense of efficacy, or belief that they have the capacity to appropriately respond to clients. the ability to understand encounters with clients and to employ strategies to foster the lawyer-client relationship enabled what one student described as a “sense of empowerment to deal with clients who have experienced trauma.”47 another respondent remarked that, [t]oday’s session made me understand that a behaviour that i may not consider it to be ‘normal’ may have a root cause, and a specific reason as to why a client is acting in a certain way.48 students were able to situate themselves in a way that opened them up to understanding client perspectives and barriers. we believe that by giving students the capacity to identify barriers and potential setbacks that arise as a consequence of client trauma, their potential frustration can be reduced and understanding and compassion can be increased. students were encouraged to consider reframing the questions they posed to clients, to reduce the perception of judgement, and to be more attentive to possible signs of trauma from client interactions. the neurobiological approach 47 post-test survey at 6. 48 post-test survey at 8. reviewed article 177 appeared to be helpful in terms of understanding trauma but also as a mechanism for employing empathy instead of client blaming: [u]nderstanding where my clients are coming from when they are expressing feelings that seem ‘irrational’ or overwhelming to me. i thought this was hugely helpful and that i can hopefully be a better support/listener than i have been in the past. i really really appreciated the session...49 a trauma informed approach helped to contextualize multiple forms of client behaviour from emotional responses to clients missing appointments: [l]earning strategies to ensure that clients feel that meeting with you is a safe space. i particularly enjoyed learning about the idea that if a client has difficulty showing up for appointments it might be because of something here making them feel unsafe as that idea had never occurred to me.50 49 post-test survey at 6. 50 post-test survey at 4. reviewed article 178 by contextualizing client behaviours as potential responses to trauma, students were more open to different interpretations of why a client may act or engage in particular ways. i think i understand better why my clients have strong emotional reactions, difficulty remembering, and are really quick to perceive threats from things like discrepancies in paperwork.51 the sense of empowerment that resonated with many post-test responses did not solely relate to the client but was also explicit in reference to the student’s own sense of well-being and self-care. many of the student lawyers noted how their own state of well-being has the potential to directly affect their relationships and interactions with clients. one student, when asked what they found most helpful about the training, remarked that: [d]iscussing different techniques and methods to use when faced with difficult situations and clients. also the whole piece on self-care and understanding the impact 51 post-test survey at 10. reviewed article 179 the client stories can have on us, and in order to serve them well, you need to make sure that you are in a good mental space.52 in the pre-test students expressed feeling ill-equipped and felt that they lacked the proper training to navigate certain difficulties with clients. the training provided students with introductory tools and strategies needed to help them gain competence and the confidence to effectively communicate with and support clients. students described the expectation of an increased ability to manage highly emotional responses from clients, as well as their own emotions. when asked about whether the training helped students understand ‘difficult’ client behaviours students said: “yes. i think i have a far better understanding and can be less unintentionally judgmental of my clients.”53 the training helped students become more reflexive in how they may interpret or respond to a client. another student said that “the discussion of so-called ‘unusual’ behaviours (i.e. laughing discussing trauma) was better explained”,54 which highlights the important piece of how the training helped ground the unexpected responses and affect trauma can illicit that are contrary to what might be expected. it may reduce students’ feelings that the client is 52 post-test survey at 4. 53 post-test survey at 9. 54 post-test survey at 9. reviewed article 180 lying or being disingenuous and instead frame a possibly unexpected or inappropriate response as linked to the experience of trauma. students were also asked to identify anticipated challenges to a trauma informed approach. students identified time constraints and structural and systemic barriers as presenting challenges to effective interviewing, to properly undertaking training and research, and to establishing a trusting relationship with clients. in terms of structural barriers and systemic constraints, students identified the role of the lawyer within the traditional legal framework as being a barrier to effectively implementing trauma informed practices. two students also identified the supervision provided by lawyers in the clinic setting as a barrier. one noted: [r]eflecting on my past practice, the factor that impeded some of the strategies was that the team, in particular long-tenured staff, were showing signs of vicarious trauma, such as indifference and dismissal of signs of trauma in clients. therefore, it was more difficult to make the structural changes needed so clients felt better…55 in the reassessment of the post-test scenario involving aisha, participants focused much more on rapport and trust building, validating feelings (both their own and 55 post-test survey at 8. reviewed article 181 those of the client) and employing trauma informed strategies when faced with highly emotional situations. one student reassessed aisha as follows: [s]he seems mistrustful of the situation and in distress in addition to the factors she is dealing with: possibly, violence, discrimination, disability, addiction, other forms of victimization.56 the post-test responses showed more patience and attentiveness to the time it would take to build a supportive relationship and were less concerned with keeping conversations narrowly focused on what they perceived as the relevant ‘legal’ issues. students were more ready to empathize with the stress that clients experience as they navigate bureaucratic legal processes and indicated greater willingness to take the time to explain things or reschedule appointments at the client’s convenience. finally, many students expressed a desire for more experience with hands-on and interactive training exercises to continue their learning of practical trauma informed methods to client interactions. in short, the module was successful in its stated goals. 56 post-test survey at 16. reviewed article 182 limitations and challenges there were several limitations in evaluating the effectiveness and conclusiveness of our findings. there were some responses that indicated that the student lawyer did not learn anything from the training – for example, there was no shift in their responses from the pre to the post-test. however, in these cases it appeared that the students had pre-existing knowledge and experience with the topics we discussed; indeed, some of these students showed higher levels of compassion and empathy in their pre-test responses. we experienced several challenges in designing this module. the first, and perhaps most obvious, is the limitation of time. given the complexity of this subject area, a full semester course would be an ideal format for preparing students to effectively work with clients. alternatively, some combination of a course with practical supports from lawyers and psychologists would be beneficial (see the kgaclc example, above). however, we were also quite practical in our approach, understanding that the intensity of clinic programs often only allows for shorter engagements. we also aimed to create a module that could be replicated fairly easily term-after-term, without a large expenditure of resources. reviewed article 183 as noted previously, in developing the module we were guided by katz and haldar’s57 work on trauma informed lawyering, which emphasizes the importance of understanding and preventing vicarious trauma. we addressed this topic at the end of the module and included a self-assessment tool adapted for lawyers and discussed how to identify and manage vicarious trauma. however, this was one of the most challenging sections to meaningfully address, particularly because many legal environments are not supportive of self-care and wellness. we were also attuned to critical perspectives on wellness, especially the important role that systems and structures can play in either supporting or undermining wellness. in their examination of the role of systems in building resilience, jessica shaw and co-authors outline why focusing on the individual as opposed to systemic and structural considerations is misguided. they note that “…by maintaining a heavy focus on the individual, researchers, practitioners, and policy makers miss the systemic causes of the problem and forgo the ability to develop effective solutions.”58 we did not do service to this topic, and this remains an area of development for future iterations of the module. in reflecting on and improving the module, we have re-engaged with discourses of decolonization that focus on decolonization and reconciliation as being anti-violence 57 katz & haldar, supra note 17. 58 jessica shaw et al, “beyond resilience: why we need to look at systems too” (2016) 6:1 psychology of violence 34 at 36. reviewed article 184 work.59 trauma informed approaches are necessarily rooted in notions of decolonization as anti-violence work and relationship building.60 moving forward, the module could be more explicitly framed as a practice of relationship building and as a method of decolonizing, drawing on indigenous scholarship in these areas to strengthen the theoretical framing of the work. although we sought to provide an intersectional analysis of trauma there was only limited influence of this approach in the post-test findings. thoughtfully addressing the role of structural oppression should be an ongoing task for legal educators and perhaps speaks to our need for lengthier or repeated modules. most importantly, we could not assess whether the students’ learning translated into actual changes in practice. the shift in identifying behavioural manifestations of trauma and developing more empathetic and compassionate attitudes towards client interactions will hopefully guide the clinical practice of our student participants. however, a more extensive and longitudinal evaluation method of post-training application is needed. additionally, we had no control group. while we suspect that 59 jeffery g hewitt, “decolonizing and indigenizing your research” (lecture delivered at the faculty writing retreat, university of windsor, 29 august 2018), [unpublished]. 60 see for example: jeffery g hewitt, “land acknowledgment, scripting and julius caesar” (2019) 88:1 sclr 27; national inquiry into missing and murdered indigenous women and girls, reclaiming power and place: the final report of the national inquiry into missing and murdered indigenous women and girls, volume 1a, online: https://www.mmiwg-ffada.ca/wpcontent/uploads/2019/06/final_report_vol_1a-1.pdf.; truth and reconciliation commission of canada, honouring the truth, reconciling for the future: summary of the final report of the truth and reconciliation commission of canada (ottawa: trc, 2015). https://www.mmiwg-ffada.ca/wp-content/uploads/2019/06/final_report_vol_1a-1.pdf https://www.mmiwg-ffada.ca/wp-content/uploads/2019/06/final_report_vol_1a-1.pdf reviewed article 185 the neurobiological framing was largely responsible for the shifts evident in the posttest data, our research did not measure the neurobiological approach as compared to other approaches to teaching students about trauma. further research in this area would be useful. for researchers and clinicians interested in this project, we recommend that the participants have at least some amount of legal practice experience with clients before taking this module. we have presented this module to students with no client-facing experience, and have observed that there is a marked difference between students who can draw on personal experiences and struggles (the “disorienting moment”61) with clients before taking the module. we strongly believe that the ability to reflect on previous experience is key to successful learning in this context. this format also provided us with a ready-made “community of practice” when presenting this module – a group of learners who worked together previously and would return to that environment afterwards. this practice context meant we had learners who were more easily able to connect with one another and engage in a horizontal pedagogical design, where students engaged both with the instructor and with one another. students were also able to immediately apply what they learned in practice, which we heard informally was of great benefit. again, this warrants further empirical 61 fran quigley, “seizing the disorienting moment: adult learning theory and the teaching of social justice in law school clinics” (1995-1996) 2:1 clinical l rev 27. reviewed article 186 examination. conclusion engaging law students in trauma informed lawyering is a means of fostering a more productive lawyer-client relationship and, at minimum, is an educational approach that attempts to do no further harm. drawing on neurobiology to explain brain functioning and responses to trauma allowed law students to connect with the material in a manner that our prior approaches did not achieve. the use of pre-test and post-test surveys allowed us to analyze the effectiveness of the module and we conclude that the creation and implementation of the module for training law students achieved our primary goals. students’ ability to identify indicators of trauma in their work with clients increased, as did their ability to adjust their responses to what they previously experienced as ‘difficult’ client behaviour. students also appeared better prepared to understand and implement approaches that might assist in building trust with clients. students were less likely to demonstrate client blaming attitudes and beliefs and were more adept at understanding their interactions with clients. as well, we were able to offer the students a framework for conceptualizing the social and political structures that produce trauma, and to locate trauma as both individual and structural. lastly, we saw growth in the ability of students to employ empathy instead of blame. with many students commenting positively on the impact that the neurobiological approach had on their thinking, we conclude that this reviewed article 187 approach was an effective mechanism for introducing trauma informed practice. while trauma informed training is not a panacea, our research indicates that even a truncated, three-hour training on trauma drawing on neurobiology has the potential to counter and disrupt client-blaming attitudes. as experiential learning is becoming an increasingly important aspect of law school education, more work needs to be done to prepare students to do client-facing work. we hope to develop further educational opportunities – whether through short trainings or through deep curricular reform – to better equip law students to build healthy relationships. such training will not only foster more productive lawyer-client relationships, but it will hopefully promote healthy professional identity development. while this particular module was focused specifically on students in a legal clinic context, it is equally applicable to the many lawyers practicing in areas with clients who have experienced trauma. we hope this approach is more widely employed for the benefit of clients and lawyers alike. reviewed article 188 appendix a: survey instrument for students pre-test survey please indicate the appropriate response: 1. what is your year in law school? 1 2 3 other: ____________________________ 2. do you have previous experience working in a legal clinic? yes no if yes, how many semesters of previous clinic experience do you have? 1 2 3 please indicate if your previous clinic experience was as an employee, volunteer, or for course credit: ______________________________ reviewed article 189 3. prior to this term, have you had previous experience working with clients as a student lawyer? yes no 4. how would you describe your level of experience with legal practice? none novice some significant 5. this semester, how many clients have you worked with to date? ___________________________ 6. on a scale of 1-10, with 1 being ‘not at all’, how familiar are you with trauma informed practice? 1 2 3 4 5 6 7 8 9 10 reviewed article 190 7. have you ever had interactions with clients that left you feeling frustrated? can you describe an example? 8. have you ever interpreted a client’s behaviour as being problematic or disingenuous? if so, can you describe an example? how did the interaction make you feel? 9. have you ever been left feeling like you do not know how to respond to a client’s behaviour or emotions? if so, can you describe an example? 10. have you ever felt as though a client was lying to you? if so, explain why? reviewed article 191 post-test questions 1. on a scale of 1 to 10, how effective do you feel today’s training was? 1 2 3 4 5 6 7 8 9 10 2. what about the training do you think will be most helpful in your clinical practice? 3. on a scale of 1 to 10, with 1 being not at all motivated, how motivated are you to implement trauma informed strategies in your clinical practice? 1 2 3 4 5 6 7 8 9 10 reviewed article 192 4. what challenges might prevent you from implementing trauma informed strategies in your practice? 5. did this training help you to understand so called “difficult” client behaviours? 6. have you developed any different interpretations of your client’s behaviours? 7. do you feel more able to identify potential trauma behaviours? 8. has the training helped you to identify strategies to better work with clients who have experienced trauma behaviours? if so, can you describe any strategies that you might employ moving forward? 9. is there anything that could be done to improve this training? reviewed article 193 appendix b preand post-test scenario please re-read the following scenario and reflect on what you learned during the training. please respond to the questions and provide as much detail as possible. aisha is scheduled to attend her first appointment with you. from your intake information, you know she identifies as female, her first language is arabic, she is in receipt of social entitlements (disability), and she is 30 years old. she said she needed help with criminal injuries compensation (ontario)/ compensation for victims of crime (saskatchewan). aisha is two hours late. on the phone, she had said she wanted help because she wants to claim compensation because she was a victim of a crime. when she comes in, you ask her to sign a retainer. she stares at you. you can’t tell if she understands what you are saying. you ask if she might need an interpreter. she refuses. when you start asking questions about the reasons why she is applying for compensation, her hands begin to shake visibly. she won’t look at you directly. she reviewed article 194 shifts in her chair often , slurs her words and you think you catch a smell of alcohol on her breath. yet, she is clear when you ask her more general questions such as her address and contact information. when you ask her questions about the reason she is seeing a lawyer, she says she has a lot of back pain and says she doesn’t remember much about the event itself. after 30 minutes, she stands up angrily and says “these questions are ridiculous. why are you making a bit deal about this anyway?” and stands up to leave. 1. what is your assessment of aisha’s situation? 2. describe how you would respond to aisha in this situation? 3. are there specific strategies that you would use to respond to aisha? 4. what emotions do you feel when you imagine being in this scenario? reviewed article 68 improving access to justice through legal aid: exploring the possibilities of ‘exceptional case funding’ clinics in university law schools emma marshall, exeter university, uk1 abstract this article focuses on the role of universities in establishing law clinics to assist individuals to make exceptional case funding (ecf) applications. the legal aid, sentencing and punishment of offenders act 2012 (laspo) removed many categories of civil matters from the scope of legal aid, reducing the number of people entitled to state-funded legal advice and assistance. to replace provision for the categories removed from scope, laspo introduced ecf to provide a ‘safety net’ for cases where human rights would be breached if legal assistance was not available. to obtain legal aid through the ecf scheme, legal aid providers or individuals must apply to the legal aid agency, the department of government within the ministry of justice that deals with the administration of legal aid. the article considers how analysis of ecf clinics can contribute to knowledge about the work of universities in facilitating access to justice through clinical legal education, particularly in the context of cuts to legal aid expenditure. it argues that ecf clinics present an opportunity to involve students 1 emma marshall is a postdoctoral policy consultant and research fellow, public law project at the university of exeter. reviewed article 69 while engaging — rather than replacing — the responsibility of the british state to provide legal aid. keywords: laspo, legal aid, exceptional case funding, university law clinics, access to justice. introduction when the legal aid, sentencing and punishment of offenders act 2012 (laspo) came into effect in 2013, it had a significant impact on the availability of free legal advice and representation in england and wales. the laspo act was introduced to implement a fundamental reform of the legal aid system (ministry of justice 2011), which formed part of the austerity measures intended to reduce public spending. one of the immediate effects of laspo was the significant reduction in the number of people receiving legal aid, and statistics released by the ministry of justice exposed the extent of the cuts: in 2012 legal aid was granted for 925,000 cases, which reduced to 497,000 cases the following year, a drop of 46 per cent (ministry of justice 2014). government spending on legal aid dropped from £2.51 billion in 2010/11, to £1.55 billion by 2016 (ministry of justice 2017a, p. 51). laspo can be viewed as part of a longer trajectory of changes that have reduced the public funding of the british legal aid system over the past two decades reviewed article 70 (sommerlad and sanderson 2013), but when the legislation came into effect in 2013, laspo had a particularly significant impact in reducing the availability of legal aid. in this respect, it is noteworthy that legal aid was first introduced as part of the welfare state by the legal aid and advice act 1949, to ensure that those who could not afford to pay for a legal representative would not be excluded from the justice system (sommerlad 2004). prior to laspo, legal aid was available for most civil proceedings with a few exceptions. the introduction of the act effectively reversed this, taking many categories of civil law out of scope, and reducing the availability of legal aid for significant areas of family, housing, debt, welfare benefits, discrimination, community care and immigration law. where categories of law were removed from the scope of legal aid, laspo extended an exceptional case funding (ecf) scheme, intended to provide a ‘safety net’ for cases where human rights would be breached if legal assistance was not available (house of lords debate 5 march 2012). under the ecf scheme, legal aid lawyers or individuals (as ‘direct applicants’) can apply to the legal aid agency — the government department within the ministry of justice that deals with the administration of legal aid — setting out the reasons that they require legal aid. however, the accessibility of the ecf scheme, and the impact of laspo more generally, has been subject to heavy criticism by human rights organisations (amnesty international 2016), legal practitioners (the law society 2017, legal aid practitioners group 2017) and academics (cobb 2013; york 2013; see also journal of social welfare reviewed article 71 and family law 2017). the number of ecf applications has been consistently much lower than predicted by the government prior to the introduction of laspo, with low grant rates, particularly in the initial years of the scheme (the law society 2017, p.21), leaving many people who arguably should be eligible for legal aid unable to access it. this article examines one way in which university law clinics can engage directly with the practical challenges of the legal aid system under laspo by setting up clinics to support individuals to make ecf applications. the research presented here examines a collaborative project between public law project (plp), a national legal charity that promotes access to justice for marginalised and disadvantaged groups, and the community law clinic at the university of exeter, which established an ecf clinic to support individuals to access legal aid. using data collected during the process of setting up the clinic, the article reflects on the findings of the project, and suggests that ecf clinics offer an important opportunity to engage students with access to justice in practice, whilst also improving access to legal aid by increasing the availability of support for people who need to access ecf. 1.1 university law clinics and access to justice university law clinics have been primarily established in the uk to provide students with important opportunities for practical ‘hands-on’ experiences of law as part of the learning process (grimes 2000; marson et al. 2005; turner et al. 2018), although most also offer services that provide access to justice for the community (drummond and reviewed article 72 mckeever 2015). in the context of legal aid cuts, the increasing demand for free legal services is one of many tensions that must be managed in the day-to-day running of university law clinics. the backdrop of significant increases to student tuition fees in recent years, and the associated expectations of students as consumers, places student experience as an important motivation for the work of university law clinics (bleasdale-hill and wragg 2013). some of the advantages of university law clinics for student learning are that students are able to apply the law in practice, gaining knowledge of how the law works, as well as the legal skills used by practitioners, such as interviewing and client care. previous academic research has sought to understand how cuts to the public funding of legal services have had an impact on the operation of university law clinics in the united kingdom, and the practical implications for access to justice in the context of the reduction of services previously funded by the state. a study of university law clinics by orla drummond and grainne mckeever (2015) highlights the tensions that exist within university law clinics as a result of competing concerns for student education and access to justice. drummond and mckeever's research demonstrates the range of perspectives and motivations that exist for conducting clinical legal education, and describes how some law school staff take the view that access to justice should be the business of the state rather than universities, whilst others wish to fulfil the critical role of supporting access to justice for their local communities (drummond and mckeever 2015, p.32). the research found that 69% of reviewed article 73 clinics thought that universities should provide access to justice services, whilst 90% of respondents were actually involved in the delivery of such services. although many university law clinics seek to balance an interest in providing learning opportunities for students while also providing an important service to the community, there are limitations on the assistance that can be provided by law schools. drummond and mckeever recommend that universities would require external support from government to support the development of the access to justice potential of law clinics. despite some of the challenges for university law clinics engaging in access to justice work, this article takes inspiration from research that celebrates the potential of academic and community partnerships for the protection of basic rights (boylan et al. 2016). in this article it is argued that the changes to legal aid brought into effect by laspo, although controversial, may also be seen to open up and enable opportunities for law schools to engage in clinical work that reinforces, rather than removing or redirecting, the notion of state responsibility for access to justice. the evidence presented below demonstrates how the politics of responsibility for advice provision plays out through university settings, by considering the ways in which clinics engage with the problems of facilitating access to justice through the ecf scheme, as well as the opportunities that ecf clinics offer for improving access to legal aid and some of the challenges of the work. reviewed article 74 1.2 exceptional case funding and legal aid for immigration matters the idea of setting up a legal aid clinic within the law school at the university of exeter began to form in december 2016. a small group of academics, practitioners and community representatives started discussions about how to support a local refugee charity, refugee support devon, which was finding it difficult to secure free immigration advice for its service users. immigration is a broad category of law, which includes asylum, but most immigration work was removed from the scope of legal aid by laspo with only specific types of case remaining in scope. according to schedule 1 of laspo, matters that remain eligible for legal aid include asylum applications, asylum support applications, applications for victims of trafficking, assistance for those held in immigration detention and some judicial review cases. legal aid for other categories of immigration must be applied for via the ecf scheme. the accessibility of the ecf scheme has been problematic, with much lower rates of applications and grants through the scheme than initially predicted by the government. prior to the introduction of laspo, the government estimated that the scheme would receive 5,000-7,000 applications a year, of which 53-74% would be granted, a target that it has failed to meet (the law society 2017). the number of ecf applications made by legal aid providers and individual members of the public remains relatively low compared to the predicted figures, and the overall rates of success for ecf applications have only slowly started to increase over the last few reviewed article 75 years. in the first year after laspo there were 1,516 applications for non-inquest2 cases, with 16 applications granted (ministry of justice 2017b). the following year the total number of applications fell to 1,172 applications, although there were 119 applications granted, which was higher than the first year of the scheme. since the introduction of the ecf scheme the overall number of applications and successful applications has increased and immigration matters now have the highest rate of applications and grants across all areas of civil law. in 2019/20, there were 3,747 applications for ecf, of which 2,525 were for immigration matters (67.39%). of the applications made for immigration matters, there were 2,035 grants of ecf, establishing a success rate of over 80% (ministry of justice 2020). in comparison, in the same financial year there were just 439 applications for family law and much lower application rates across other categories of law (ibid.). the average grant rate across all other categories, excluding inquest cases, was just 32.95% (ibid.). the restrictions on legal aid funding have contributed to the growth of immigration 'advice deserts' across england and wales,3 as well as compounding the issues in areas where there was already a shortage of immigration advice (burridge and gill 2017). academic work has described how the changes to legal aid contracts under laspo created a crisis of capacity within the immigration advice sector, with 2 non-inquest ecf is the focus here as a form of ecf was already available for inquest cases prior to laspo. all figures provided relate to non-inquest cases. 3 the analysis here is limited to the legal aid scheme in england and wales, as scotland and northern ireland operate as separate jurisdictions. reviewed article 76 legal aid providers are often unable to meet demand for immigration legal aid (wilding 2019). the south west of england is one area of the country in which the availability of legal aid for immigration matters is very limited, which is a situation that has been worsened by laspo. prior to laspo there had been a small number of legal aid providers with immigration and asylum contracts in devon, but most of these contracts ended when general immigration work was removed from the scope of legal aid. there is currently only one organisation with a legal aid contract for the category of immigration and asylum in devon, whilst devon's neighbouring counties of cornwall, somerset and dorset have no legal aid contracts for immigration and asylum work (ibid.). applying for ecf does not directly increase the availability nor capacity of legal aid providers, but where individuals successfully make direct applications to the legal aid agency it can help to secure the assistance of a legal aid provider that may otherwise be unable to take on the case. research conducted by the charity rights of women found that there is very little help available for people who need to make an ecf application, with very few legal aid providers who undertake ecf applications (2019, p.10). the low grant rates for ecf across many areas of civil law mean that there is little incentive for legal aid providers, who already work within the context of a system under strain, to make ecf applications. funding is only retrospectively provided for the time spent on an application if ecf is granted, and the applications themselves are complex and time-consuming. in light of this, setting up projects to reviewed article 77 improve the number of applications and grants of ecf is a significant gap that university law clinics and other pro bono projects can help to address. 1. methodology the interest in establishing an ecf clinic at the university of exeter was motivated by concerns about the availability of legal aid for immigration advice in the local area. in discussing the potential of the project, it was felt that law students would have much to offer in assisting individuals with ecf applications. the organisations involved in the project had observed that often individuals are unaware that they can apply for funding, or would be unable to make an application themselves, unless they can find an adviser to assist, which can be difficult even once ecf is secured. the project also offered a valuable opportunity for law students to put their developing legal skills into practice. 2.1 setting up the research when seeking information about the ecf scheme for refugee support devon and its service users, it became apparent that the information provided on the government website, intended to assist individuals to make ecf applications, was limited. the steering group for the clinic approached plp, a national legal charity with a particular interest in promoting access to justice, which has done considerable work to improve access to ecf since the introduction of laspo. between 2013 and 2017, plp’s legal reviewed article 78 aid support project assisted individuals to make applications for ecf, resulting in litigation setting out the systemic issues of the scheme in the cases of gudanaviciene & others v the director of legal aid casework and the lord chancellor [2014] ewca civ 1622 and i.s. v the director of legal aid casework and the lord chancellor [2015] ewhc 1965 (admin) and [2016] ewca civ 464. plp also has a website with resources offering practical information to help legal aid providers and members of the public who wish to apply for ecf, and it provides training to organisations. plp maintains that the ecf scheme 'remains inaccessible in practice for many people, particularly those who are trying to apply without the assistance of a legal aid provider' (public law project 2018a, p.2), based on its considerable experience of advocacy in this area. for this reason, plp was keen to support the development of an ecf clinic at the university of exeter. plp was particularly interested in the feasibility of developing a model that could be adopted by university law schools in setting up their own ecf clinics. as a charity, plp had previously conducted a piece of research with university law clinics to look at how they support access to justice in public law matters (public law project 2018b). with plp’s input in setting up the ecf clinic, the research was designed to collect data on the process of establishing the clinic, which included recording a detailed field diary of the process of, as well as speaking to other university law clinics in england and wales with experience of making ecf applications or an interest in doing so. reviewed article 79 the discussions that initially took place between the university of exeter and plp highlighted some of the potential practical problems that could arise from the project. for example, cases need to be triaged to ensure that ecf is appropriate and that cases ineligible for ecf can be referred to other services. such examples might include when a matter falls within the usual scope of legal aid or where an applicant falls outside general eligibility requirements for legal aid, such as the means test. in addition, immigration advice is strictly regulated, and it is a criminal offence for anyone who does not have appropriate accreditation to provide immigration advice. ecf applications are exempt from this regulation (office of the immigration services commissioner 2016), but it remains necessary to ensure that immigration advice is not inadvertently provided in the course of assisting an individual to make an application for ecf. 2.2 conducting the research the research on ecf clinics was conducted on behalf of plp between september 2017 and february 2018, although field notes from the months prior to september helped to contextualise the findings of the research, as the clinic constituted part of a larger research project about access to immigration advice in the south west. a formal agreement between plp and the university of exeter was put in place, which helped to make a distinction between the work of the two organisations and how each was involved in the project. the process of setting up the clinic was documented, with detailed notes recorded about the discussions and processes involved. field notes reviewed article 80 were collected from the early discussions in november 2016 onwards, and in february 2018 the observations were written up to include minutes from planning meetings and discussions among member of the steering group, to provide reflection on how the ideas had progressed. in total the observations collected were saved in a document of just under 11,000 words. analysis of these observations enabled detailed reflection on the process of establishing the clinic. the data that was collected included observations from the process of setting up the clinic at exeter, feedback from volunteers and refugee support devon, the partner organisation for the project, as well interviews with other university law clinics. clients of the ecf clinic were not asked to participate in the research due to the short timescale for the research and the focus on the organisational aspects of supporting ecf applications. an online survey was sent to 53 university law school pro bono projects in england and wales by plp in december 2017. the list was compiled from the lawworks website (lawworks 2015), which has a database of law clinics. the questionnaire requested feedback from law schools either running, setting up or considering ecf projects. participants were encouraged to respond in other formats if they felt that would be more appropriate, for example by email or telephone contact. despite the best efforts of the researcher to make the survey easy to respond to, very few replies were received. there was a total of six responses, with three of those from law clinics willing to participate in the research. two of the universities that agreed to participate were already assisting individuals with ecf applications reviewed article 81 (the immigration human rights project at city university, and swansea university) and the other was interested in setting up a project (university of huddersfield). it is not possible to definitively provide a reason for the low number of responses, although the negative responses that were received indicated that ecf was not relevant to the services provided by the clinics. alongside the observations, feedback from the students and staff involved in the exeter ecf clinic was gathered at the end of the research period. a questionnaire was sent to the eight students involved in the project and responses were collected anonymously. from this, three responses were received, and the other professionals on the steering group for the project were provided with the opportunity to give feedback through an online web form. the original intention was to hold a focus group at the end of the project, but the busy timetables of everyone involved meant this was not possible. the opinions and input of the other members of the steering group were present in the observations that were compiled, and one additional response was received from refugee support devon, the local charity that was a partner organisation for the clinic. the findings of the research were compiled in a report published by plp, which was made available on its website. in the sections that follow, the significance of these findings is explained, particularly in relation to why ecf clinics have an important function providing support to individuals who do not have a legal adviser to make a reviewed article 82 legal aid application on their behalf, and how ecf clinics have grappled with the challenges of the post-laspo legal aid system. 3. findings: the work of ecf clinics the limited availability of legal aid providers in england and wales, particularly those that make ecf applications on behalf of their clients, means that the support that university law clinics offer individuals in making applications for ecf can be of considerable benefit to the community and improve the accessibility of legal aid. the government's website encourages individuals to make their own applications for ecf (legal aid agency 2014), but at the time of the research the number of applications from direct applicants was lower than the number of applications made by providers, and direct applicants also had lower grant rates than provider applications. for example, in the financial year 2016/17 prior to the research, there were 1,243 noninquest applications to the laa that were made by providers, with a 57% grant rate.4 in the same year there were just 348 non-inquest applications by individuals, with a 34% grant rate. the legal aid agency does not publish data on the support that direct applicants receive from charities or pro bono projects, so it is not possible to compare 4 based on data provided by email by the ministry of justice, 22 march 2018. statistics also published by the ministry of justice, see ministry of justice, 2018. legal aid statistics: october to december 2017. legal aid statistics england and wales more detailed data october to december 2017. available at: https://www.gov.uk/government/statistics/legal-aid-statistics-october-to-december-2017. https://www.gov.uk/government/statistics/legal-aid-statistics-october-to-december-2017 reviewed article 83 the number of successful applicants who have received this type of assistance for an ecf application to those who have not received any help. although individuals or legal aid providers can apply for ecf, direct applicants who do not have the assistance of a legal adviser may be subject to particular barriers in making a successful application. the application form for ecf is complex to fill out and requires technical knowledge of the relevant areas of law and legal processes, including the eligibility criteria for ecf (see also, public law project 2018c). one barrier is the technical nature of ecf applications, and the legal framing that they require, particularly in terms of the need to set out how an individual's rights would be breached in the absence of legal aid. some groups face other specific barriers, such as those with low levels of literacy in english, and people with learning disabilities or health conditions that may impair their ability to complete an application. it is often people who could not make an ecf application themselves that are most in need of legal assistance, but these groups also likely to be excluded by the system if they are unable to find a legal aid provider to assist with an ecf application. although the legal aid agency suggests that individuals can apply themselves, in practice this may not always be possible, or may be more likely to result in an unsuccessful application for legal aid where individuals are unable to provide all of the information required without assistance. reviewed article 84 3.1 the location and scale of ecf clinics the potential scale of any project is closely related to the existing advice infrastructure of an area. consequently, the number of advice agencies and legal aid providers available to make and receive referrals in a local area can be an important consideration for the operation of ecf clinics. in exeter, there was a slow start to the project, and although from the outset the steering group recognised that the project was likely to deal with relatively small numbers of enquiries, in the initial months it became clear that considerable work would need to go into generating referrals by raising the profile of the project. initiating conversations with local charities and legal aid providers was an important part of the process. in comparison, the immigration and human rights project in london, a collaboration between city university and no 5 chambers, was able to secure a number of referral agencies that work with the service by identifying individuals that need to make an ecf application and helping them to secure a legal aid provider once ecf is granted. as jennifer blair, an immigration barrister at no 5 chambers involved in the running of the project, explained: we don't arrange [a legal aid provider] before making an application, but we know that referral agencies sometimes would. we (student volunteers) do not have the contacts to do this. there are vast disparities in the quality of legal advice out there and the student volunteer will not know how complex the case is compared with other reviewed article 85 cases in the field. in general, once ecf is granted we signpost the client back to the referral agency for help finding a solicitor. in a few cases, volunteers have been keen to help and i have provided a list of solicitors to try. cases are then placed. (jennifer blair, immigration barrister). the project in london completed 28 ecf applications in two years, with a 91% grant rate. they reported that they had three partner organisations, and virtually all of their referrals came from london. in contrast to london, there were difficulties for the project in exeter due to the limited number of legal aid providers in the region that could take on immigration cases. this was identified as a key risk for the project by the staff at refugee support devon: [there is a] risk of giving wrong expectations to clients, and not being able to find a solicitor that could take a case on. there is a big lack of legal advice in this area. (nelida montes de oca, casework coordinator). swansea law clinic described a similar difficulty around securing legal aid providers in the region of south wales. swansea law clinic also identified ecf as a way to improve access to advice by working with and complementing existing services (richard owen, director of swansea law clinic). the university of huddersfield does reviewed article 86 not currently run an ecf service, but recognised the potential value of establishing a service within their existing pro bono scheme in order to assist firms that were unable to make ecf applications, or only able to make a small number on a selective basis (i.e. only making the applications most likely to be granted). the director of the legal advice clinic at the university of huddersfield noted that any work on ecf applications through the law clinic may still be selective, but would not have the same financial constraints as law firms that only get paid for successful applications (phil drake, director of the university of huddersfield legal advice clinic). thus, in areas where there is limited legal aid capacity, ecf clinics can potentially complement existing services that may otherwise be unable to take referrals for cases that require ecf. the location of any project in relation to existing advice infrastructure is not the only factor likely to influence the size and capacity of a clinic, but as demand and resources will also determine the viability of a clinic the potential to create referral pathways, or to generate a caseload and to make onward referrals, is an important consideration for setting up ecf clinics. the research identified two distinct advantages for setting up clinics in the context of advice deserts where there is limited advice provision. first, universities as research institutions are well placed to monitor and report on the situation where access to advice is limited. in locations from which low numbers of ecf applications are made, ecf clinics can increase these numbers or provide commentary on why the number of applications is low. second, setting up ecf clinics reviewed article 87 can open up conversations about ecf in locations where services are lacking, raising awareness of the ecf scheme among those who may otherwise not be able to access it. as the project in exeter also generated referrals, it helped to make the local need for ecf more visible by establishing conversations around the issue. 3.2 training and supervision the level of supervision and input of specialist lawyers varies between clinics, but there are clear benefits to having legal expertise built into the process for making ecf applications. for example, at the immigration and human rights project at city university and no 5 chambers, students are given training and support from lawyers, but largely take responsibility for the operation of the clinic, as explained by the barrister involved in the project: the students take on an ecf application. they are trained, and it is for them to meet the client, explain the forms, provide an advice letter and then — once the information is collected — provide a covering letter. their work (the attendance notes and letters they write) are saved on the drop box, which is moderated by student directors. it is predominantly a student led project with support from the university, chambers and partnership with referral agencies. if there are questions about the content of letters they can ask the student directors, but often these are passed onto me. we are in the reviewed article 88 process of establishing a monthly drop-in surgery to develop more in depth (and onestop) feedback from a lawyer. thus far it's been by email. (jennifer blair, immigration barrister at no 5 chambers). this evaluation of the process demonstrates how the input of lawyers can help to direct students in developing ecf applications, allowing them to offer their developing legal skills for the benefit of the community at the same time as the process being an important learning opportunity for students. at the university of exeter, law students were supervised in every session spent with a client. a qualified lawyer would not be present in every client meeting, but the input from the practitioners involved in the project was important for developing the training materials and setting up the model for taking instruction from a client, drafting the documents and checking the content where necessary. at swansea university, the clinic director interviews clients initially, and then students carry out a follow up interview, particularly as the clinic was in the process of becoming established: as we are in a pilot stage the clinic director interviews the client initially and then students do a follow up interview. the students draft applications, which are reviewed article 89 supervised by the clinic director. the students work in pairs. (richard owen, director of swansea law clinic). for the clinics in both exeter and swansea, the training delivered benefitted from being based on the ecf training provided by plp as a charity with a great deal of knowledge about the ecf process. the training in exeter provides general guidance about the operation of the clinic and how to work with clients, as well as specific information about the ecf process. the ecf training at the university of exeter covers the history of laspo and the introduction of ecf, including the main changes to the legislation and guidance on how to make ecf applications. for example, specific details about the timeframe for decision-making by the legal aid agency, the evidence required to support applications, and how to include relevant case law. it also gives participants the chance to discuss anonymised case studies to practise applying the eligibility criteria. all three established clinics that participated in the research did not only have specialist knowledge of specific areas of law, they also had specific knowledge of the ecf scheme itself (the project at city university is supervised by an immigration barrister, who has significant experience of ecf). the combination of general points of law and legal practice, and very specific information about the ecf scheme, would not necessarily be available to direct applicants without the support of an organisation or legal aid provider. and although there is the potential to provide individuals with reviewed article 90 such knowledge, for example, plp have produced a guide for direct applicants, law students have the benefit of already having an understanding of legal processes. as one participant commented, ‘quite often with applications there’s a certain technique — it's not necessarily what you say, and it’s how you say it’ (phil drake, director of the university of huddersfield legal advice clinic). law students are already in the process of learning the technique of putting forward legal arguments, which is of great benefit for making ecf applications. the regulation of immigration advice means that opportunities to engage in its provision without being a qualified adviser are limited. as ecf applications for immigration cases are not regulated by the office of the immigration services commissioner, making applications on behalf of individuals is an area of immigration work that law schools can engage in without having to put substantial regulatory frameworks in place. the fact that ecf applications are not included within the definition of regulated immigration advice was a factor in setting up the projects in exeter and swansea, although the risk of student volunteers providing immigration advice must still be mitigated. students can assist individuals to complete the ecf form and compile the evidence, but putting in place additional practical arrangements, such as recording an attendance note, is important to demonstrate that any assistance provided is limited to the ecf application process and not the provision of immigration advice. since it is a criminal offence to provide immigration advice without the appropriate regulation, safeguarding students — who are likely to reviewed article 91 pursue a career in law — from inadvertently providing unregulated advice is essential. the operational ecf clinics that participated in the research all focused on immigration, in part due to the recognition of the need for legal services in this area, but also because it can be easier to focus on one specialist area of law due to the practicalities of triaging referrals and ensuring their suitability for ecf. for example, the project in london reported why their work was usually limited to immigration: we are the city university and no5 chambers immigration human rights project, so we are focused on migrants’ rights. we have done one or two family law cases, but i understand it is harder to get ecf in those areas. the family ecf applications have been in relation to migrants. we are not limited to immigration ecfs if there were good reasons for one in another area, but it is harder to ensure the clients have good legal advice first (for example, in a family case i had to ask one of my colleagues to provide a pro bono advice, which we could do on occasion but obviously not in every case). (jennifer blair, immigration barrister at no 5 chambers). the specific focus on one area of law also makes the training and supervision of students easier. although law students can bring general legal skills to the process of making an ecf application, focusing on one area of law can make projects more reviewed article 92 manageable from a supervisory perspective. the different types of specific knowledge required to make an ecf application may vary depending on the area of law. for example, understanding what is likely to be a successful immigration application does not necessarily equate to being able to write a successful family application. building expertise in a particular area of law can allow students to be more effective in identifying the relevant facts of a case and translating them into an ecf application. having said this, towards the end of the research, the exeter ecf clinic identified a need to assist with ecf applications in other areas of law, particularly family law where ecf applications and grant rates are much lower than immigration. in either case, being able to identify law school staff or partner organisations with the expert knowledge to train and supervise students is likely to be a significant consideration for any ecf clinic. finally, the sensitive nature of the types of cases presented to ecf clinics means that the safeguarding of students and clients is a key consideration in the day-to-day running of the clinics. the director of swansea law clinic noted that some of the cases referred to the clinic had been ‘harrowing’ (richard owen, director of swansea law clinic). at exeter, this was also an important consideration, and sessions often ended with an opportunity to debrief the students, which gave the students a chance to talk about anything they had found particularly challenging, problematic or upsetting. reviewed article 93 3.3 student learning and benefits to the wider community from a student learning perspective, ecf clinics provide an important opportunity for students to apply their legal training to real-life scenarios, and to develop knowledge of the legal aid system and legal practice. the focus on access to justice within ecf clinics reflects the view expressed by frank dignan, that a clinic providing access to justice to all members of society can provide ‘an opportunity for students to think about the practical aspects of the provision of legal services to those who cannot pay for them’, which also has the potential to enhance academic understanding of these issues through the practical knowledge gained by students (2011, p.81). for example, the ecf process provides insight into how the civil legal aid system works, because submitting an ecf application requires students to compile relevant documents in a similar way to how legal aid lawyers compile and present legal aid applications for their clients. the value of ecf clinics is not, however, limited to the practical legal skills acquired by students. all of the clinics that participated in the research had an interest in access to justice, and an important part of setting up the ecf clinic at the university of exeter was to provide students with sufficient training and supervision in order to enable them to compile applications on behalf of individuals, to allow the legal skills and expertise developed in the university setting to be shared with the community. previous literature demonstrates that law clinics can be a valuable format for teaching students about the ethical demands of being a lawyer if consideration is reviewed article 94 given to how students will be trained and provided with opportunities to explore ethical obligations through clinic activities (kerrigan 2007; bleasdale-hill and wragg 2013). the work of ecf clinics allows students to learn about access to justice in practice by witnessing how individuals encounter the justice system and the challenges of the legal aid system. the work of the clinic at exeter was often emotionally demanding due to the accounts given by clients of their personal situations and this was further intensified by the hours spent labouring over the technical details of the ecf applications compiled, and, in some cases, the to-and-fro in correspondence with the legal aid agency in order to get ecf granted. most of the cases seen in the exeter clinic involved people in urgent situations, whether due to destitution or the threat of removal from the uk. the delays in getting responses from the legal aid agency — which in some cases were refusals that then needed to be challenged — contributed to the practical challenges of running the clinic. however, feedback from one volunteer highlighted how experiencing some of these issues in practice was an important motivation for furthering their interest in the legal aid system: i have found the client interaction extremely valuable. gaining knowledge of the practical application of different areas of law, like the human rights act, has also been hugely valuable. it has given me real experience of interacting with clients, enhanced reviewed article 95 my knowledge of different areas of law and made me more passionate about the problems surrounding legal aid. (student volunteer, university of exeter ecf clinic). the students that chose to volunteer in the project at exeter already had some interest in immigration law, but some became very engaged in the project not only to assist individuals, but to help raise awareness of ecf by contacting local firms and community support organisations, encouraging referrals to the clinic. setting up ecf clinics may, therefore, be motivated by a desire to provide students with practical experience to develop professional skills, which can be a significant factor for universities establishing law clinics (marson et al. 2005; turner et al. 2018), but ecf clinics are also a way of engaging students in the practical and ethical demands of access to justice as a social issue. the value of the work done by ecf clinics may then not be viewed as limited to the immediate benefit to individuals who are granted ecf, but also comes from engaging law students in the politics of legal aid and the struggle to ensure that the legal needs of those without money to pay for legal services are met. the value of the work of the clinics for general community benefit need not be considered entirely separately from the benefits of the student learning experience, as ecf clinics provide students with an opportunity to learn about access to justice by doing access to justice work. reviewed article 96 3.4 challenges for ecf clinics as well as the benefits of ecf clinics for members of the public and student learning, the research also highlighted three particular challenges. first, the management of resources available within the institution and the capacity of staff and volunteers. second, managing external partnerships with other, usually very busy, local advice agencies and legal aid providers. and finally, dealing with problems arising from the administration of the ecf scheme itself, including delays to applications, in the context of other internal and external resource constraints and the pressing needs of the clients being assisted. the relationship between these three challenges will now be further explained. managing the capacity of ecf clinics can be challenging where universities are relying on already busy staff and students to carry out and supervise the work. recruiting new students each year, as well as managing a caseload (and client expectations) can be particularly demanding. the project in london, which was the most established service that took part in the research, explained how student recruitment needed to be carefully negotiated: we increased from the pilot to 30 trainees in the second stage. in the third intake we have decided to reduce the number of trainees — we are currently training 18 but there are usually some immediate drop outs after training, so we really want around 12 committed people — and the smaller group will allow us to assign cases on a rota reviewed article 97 and monitor them more closely. (jennifer blair, immigration barrister at no 5 chambers). in exeter, having only a small number of referrals brought additional challenges (the clinic dealt with five cases in its first year), as eight students received training but there were not enough referrals to the clinic were made to engage all of the student volunteers in the first few months of the project. when cases did come up, they were often at short notice, and finding a time for everyone to meet with the client (two volunteers and a supervisor), was sometimes not possible. at the exeter clinic the need to ensure good quality applications (as well as the safeguarding of students and clients) resulted in time-intensive supervision. students were supported during meetings with clients, as well as in the drafting stage of an application. if a client meeting takes an hour to an hour and a half, and cases may require two or three meetings, the time of two students plus a supervisor could amount to a considerable number of cumulative hours just spent with the client. the students would then spend additional time drafting the documents, which would need to be checked. combined with the length of time it took to receive legal aid agency decisions, and requests for further information that could extend the period between submitting an application and receiving a decision, this meant that the resources needed to support one case could be considerable (for example, around 6-8 reviewed article 98 hours supervision time),5 and it could also make it difficult to predict the size of caseload that the clinic would be able to facilitate at any given time. the most appropriate way of dealing with the challenge of an unpredictable number of referrals is to initiate an ecf clinic on a small scale and build it up over time. richard owen, director of swansea law clinic, explained that because their referrals for ecf applications come from a partner organisation, it is hard to identify the exact demand in the region. here he explains how the project was started on a small scale in addition to other pro bono work recently established through the law clinic: the clinic was only established in january 2017. it began with a miscarriage of justice project and prison law clinic. since october 2017, we have had face-to-face client interviews mainly in housing, employment, relationship breakdown and equality issues, following which clients get an initial advice and assistance letter. there are currently four students involved with the work on ecf applications. it is less than other clinical work which has thirty-six students, but we have just started. (richard owen, director of swansea law clinic). 5 accurate time recording was not carried out at the time of the research, so this figure is based on an estimate including work subsequently done by the clinic. rights of women (2019) reported that their caseworkers spent 9 hours on average preparing an ecf application. reviewed article 99 building a project over time means that the immediate potential benefits of ecf for clients may be limited by the reality of the potential caseload, and there are related considerations of how this is likely to be restricted by the capacity constraints of local advice infrastructure (i.e. the organisations able to provide or take referrals), as well as university resources, including the amount of staff supervision time available. discussion: the value of ecf clinics from an access to justice perspective ngos have a growing interest in how university law clinics can support access to justice (lawworks 2017), with funders such as the legal education foundation supporting significant work in this area, including plp's report on public law in clinical legal environments (public law project 2018b). identifying the opportunities that ecf clinics offer as part of clinical legal education programmes is an important contribution to discussions about the role of university law clinics in access to justice work and the benefits that they can offer to the wider community. the expansion of university law clinics to assist members of the public with legal issues is important at a time where the decline of legal aid has left many people facing significant barriers to accessing the justice system without legal representation. however, university law clinics are under increasing pressure to provide access to justice in the absence of state funding, and clinics would require significant additional resources to meet this demand (drummond and mckeever 2015). where other pro bono advice services may aim to at least in part replace services previously funded by legal aid, ecf clinics offer reviewed article 100 a route to directly challenge the effects of legal aid by increasing the number of people able to access ecf for areas of law that are now outside the usual scope of legal aid. ecf clinics are beneficial from a student learning perspective not only for allowing students to apply their developing legal skills to support access to justice, but also by engaging them in the challenges of the legal aid system and providing the opportunity to learn about how access to justice issues impact the communities that they live in. raising awareness of the challenges of the civil justice system, as well as the developing creative ways to address such challenges, is an important part of the work done by ecf clinics. engaging students with the ecf scheme and conversations about the operation of the legal aid system also provides an important point of learning. teaching students about civil legal aid, by providing students with a chance to encounter the legal aid system, can be an important part of longer-term strategies to develop future lawyers who care about access to justice and the accessibility of legal services. despite the advantages of ecf clinics, the research also found that engaging with the ecf scheme demonstrates the ways in which the scheme itself often limits the possibilities of fair and effective access to justice by preventing individuals from being able to access legal aid. the experience of running the clinic in exeter was that the ecf scheme is problematic from an access to justice perspective in terms of its administration by the legal aid agency, including the time and technical expertise required to make an application, and the delays faced by applicants. the issues reviewed article 101 encountered when assisting individuals to make applications often made the project more difficult to manage in terms of the resources and capacity of university volunteers. these challenges presented a tension between the aim of promoting access to the ecf scheme to ensure that those in need of advice can secure it and enabling a deeply flawed system to function. despite the challenges of the ecf system, attempting to improve access to the scheme remains important because if people do not apply for ecf when they need it, the statistics will continue to show a low level of take up for the scheme, which is then assumed to indicate a low level of demand rather than demonstrating the reality of the need for a more accessible and sustainable legal aid system. the research summarised above focuses primarily on immigration law, as that was the main focus of the clinics that participated in the research. immigration is also the area of law in which most ecf applications are currently made and granted. however, since the research was conducted, the university of exeter ecf clinic has assisted individuals with ecf applications for family law and welfare benefits. given the lower application and grant rates in these areas, as well as the other categories of civil law where ecf was introduced and because the overall number of ecf applications continues to fall short of the government’s original predictions for the scheme each year, there is considerable scope to expand the work of ecf clinics to support access to justice. reviewed article 102 conclusion ecf clinics can be viewed as one strategy for increasing access to legal aid, rather than establishing alternative services in response to the gaps left by the laspo cuts. where legal aid providers are unable to make ecf applications, university law clinics (and potentially other pro bono projects, although that is not the scope of the research presented here) can provide an important service to the public by assisting individuals to apply for ecf directly to the legal aid agency. the potential to support direct applicants with the process of applying for ecf comes with the caveat that the individuals still need to find a legal aid provider to take their case on, which is not always easy given the context of advice deserts. in cases where providers are unable to make ecf applications themselves, ecf clinics can help to connect individuals with their entitlement to legal aid, which may otherwise be unrealised. law students are able to put their developing legal skills into practice before they are qualified, and first-hand experience of access to justice issues may prove to be important for the future development of a generation of legal aid lawyers who are committed to access to justice. in response to the funding cuts introduced by laspo, ecf clinics are one way of improving access to justice, but at the same time refusing to accept the burden of responsibility for advice provision in the context of the reductions of state funding for legal aid. reviewed article 103 acknowledgements i wish to thank nick gill and joe tomlinson for their detailed comments on earlier drafts of this paper, as well as naomi millner and matt finn for their reflections during the writing process. the research for this paper was supported by funding from the esrc under grant es/j50015x/1. reviewed article 104 references amnesty international, 2016. cuts that hurt. the impact of legal aid cuts in england on access to justice. london, amnesty international uk. available at: https://www.amnesty.org.uk/files/aiuk_legal_aid_report.pdf. boylan, j., brammer, a., krishnadas, j., patel, p. and lingam, l., 2016. time for justice, time for change! the place of academic and community partnerships in promoting local and global rights and challenging injustice. ethics and social welfare 10(4), 304315. bleasdale-hill, l. and wragg, p., 2013. models of clinic and their value to students, universities and the community in the post-2012 fees era. international journal of clinic legal education 19, 257-269. burridge, a. and gill, n., 2017. conveyor-belt justice: precarity, access to justice, and uneven geographies of legal aid in uk asylum appeals. antipode 49(1), 23-42. reviewed article 105 cobb, s., 2013. legal aid reform: its impact on family law. journal of social welfare and family law 35(1), 3-19. dignan, f., 2011. bridging the academic/vocational divide: the creation of a law clinic in an academic law school. international journal of clinical legal education 15, 75-84. drummond, o. and mckeever, g., 2015. access to justice through university law clinics. ulster university law school. available at: https://www.ulster.ac.uk/__data/assets/pdf_file/0003/132654/access-to-justicethrough-uni-law-clinics-november-2015.pdf. grimes, r., 2000. learning law by doing law in the uk. journal of clinical legal education 1, 54-57. house of lords debate (5 march 2012) vol. 735, col. 1570. available at: https://publications.parliament.uk/pa/ld201212/ldhansrd/text/1203050001.htm#1203057001727. journal of social welfare and family law, 2017. special issue. the post-laspo landscape: challenges for family law 39(2). https://www.ulster.ac.uk/__data/assets/pdf_file/0003/132654/access-to-justice-through-uni-law-clinics-november-2015.pdf https://www.ulster.ac.uk/__data/assets/pdf_file/0003/132654/access-to-justice-through-uni-law-clinics-november-2015.pdf https://publications.parliament.uk/pa/ld201212/ldhansrd/text/120305-0001.htm#1203057001727 https://publications.parliament.uk/pa/ld201212/ldhansrd/text/120305-0001.htm#1203057001727 reviewed article 106 kerrigan, k. 2007. “how do you feel about this client?” – a commentary on the clinic model as a vehicle for teaching ethics to law students. international journal of clinical legal education 11, 7-26. lawworks, 2015. find a legal advice clinic near you. available at: https://www.lawworks.org.uk/legal-advice-individuals/find-legal-advice-clinic-nearyou. lawworks, 2017. lawworks clinics network report april 2016 – march 2017. available at: https://www.lawworks.org.uk/sites/default/files/lawworks%20clinics%20report%2 02016-17.pdf. legal aid agency, 2014. guidance. legal aid: apply for exceptional case funding. available at: https://www.gov.uk/guidance/legal-aid-apply-for-exceptional-casefunding. legal aid practitioners group, 2017. manifesto for legal aid. second edition. london, legal aid practitioners group. available at: http://www.lapg.co.uk/wp content/uploads/lapg_manifesto_a5_final.pdf. reviewed article 107 marson, j., wilson, a. and van hoorebeek, m., 2005. the necessity of clinical legal education in university law schools: a uk perspective. international journal of clinical legal education 7 29-43. ministry of justice, 2011. reform of legal aid in england and wales: the government response (cm 8072). ministry of justice, 2014. legal aid statistics in england and wales. legal aid agency. 2013-2014. statistics bulletin, 24 june 2014. available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attach ment_data/file/366575/legal-aid-statistics-2013-14.pdf. ministry of justice, 2017a. legal aid, sentencing and punishment of offenders act 2012: post-legislative memorandum (cm 9486). ministry of justice, 2017b. legal aid statistics in england and wales tables april to june 2018. available at: https://www.gov.uk/government/statistics/legal-aid-statisticsapril-to-june-2018. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/366575/legal-aid-statistics-2013-14.pdf https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/366575/legal-aid-statistics-2013-14.pdf https://www.gov.uk/government/statistics/legal-aid-statistics-april-to-june-2018 https://www.gov.uk/government/statistics/legal-aid-statistics-april-to-june-2018 reviewed article 108 ministry of justice, 2020. legal aid statistics england and wales tables april to june 2020. available at: https://www.gov.uk/government/statistics/legal-aid-statistics-quarterlyapril-to-june-2020. public law project, 2018a. written evidence of the public law project to the joint committee on human rights’ inquiry into human rights: attitudes to enforcement. available at: http://www.publiclawproject.org.uk/data/resources/275/written-submission-of-plpto-jchr-inquiry-on-attitudes-to-human-rights-enforcement.pdf. public law project, 2018b. public law and clinical legal environments. available at: https://publiclawproject.org.uk/resources/public-law-and-clinical-legalenvironments/. public law project, 2018c. submission to the post-implementation review of the legal aid sentencing and punishment of offenders act 2012. available at: https://publiclawproject.org.uk/wp-content/uploads/2018/09/laspo-pirsubmission-plp.pdf. https://www.gov.uk/government/statistics/legal-aid-statistics-quarterly-april-to-june-2020 https://www.gov.uk/government/statistics/legal-aid-statistics-quarterly-april-to-june-2020 reviewed article 109 the law society, 2017. access denied? laspo four years on: a law society. london, the law society. available at: http://www.lawsociety.org.uk/support-services/researchtrends/laspo-4-years-on/. rights of women, 2019. accessible or beyond reach? navigating the ecf scheme without a lawyer. available at: https://rightsofwomen.org.uk/wpcontent/uploads/2019/02/accessible-or-beyond-reach.pdf. sommerlad, h., 2004. some reflections on the relationship between citizenship, access to justice, and the reform of legal aid. journal of law and society 31(3), 345–368. sommerlad, h and sanderson, p., 2013. social justice on the margins: the future of the not for profit sector as providers of legal advice in england and wales. journal of social welfare and family law 35(3), 305-327. turner, j., bone, a. and ashton, j., 2018. reasons why law students should have access to learning law through a skills-based approach. the law teacher 52(1), 1-16. http://www.lawsociety.org.uk/support-services/research-trends/laspo-4-years-on/ http://www.lawsociety.org.uk/support-services/research-trends/laspo-4-years-on/ https://rightsofwomen.org.uk/wp-content/uploads/2019/02/accessible-or-beyond-reach.pdf https://rightsofwomen.org.uk/wp-content/uploads/2019/02/accessible-or-beyond-reach.pdf reviewed article 110 office of the immigration services commissioner, 2016. guidance. clarification of oisc's jurisdiction. available at: https://www.gov.uk/government/publications/clarification-of-the-oiscsjurisdiction/clarification-of-oiscs-jurisdiction. wilding, j., 2019. droughts and deserts: a report on the immigration legal aid market. university of brighton and the joseph rowntree charitable trust. york, s., 2013. the end of legal aid in immigration: a barrier to access to justice for migrants and a decline in the rule of law. journal of immigration, asylum and nationality law 27(2), 97-194. pushing the boundaries or preserving the status quo? designing clinical programs to teach law students a deep understanding of ethical practice1 liz curran, judith dickson & mary anne noone* introduction the clinical legal education environment is one that is ripe with professional and ethical situations. students involved in this educational experience inevitably are exposed to ethical dilemmas and choices. in this paper we examine the role played by clinical legal education programs in the development of ethical awareness among those law students. within the context of the well documented concerns in the wider legal profession as to the standard of ethics teaching and ethical practice we assert that the clinical environment provides a rich opportunity for a deep learning experience about the nature and extent of a legal practitioner’s professional and ethical responsibilities. we begin by setting out the assumptions that underpin our approach, place our discussion in context and discuss various lawyering paradigms. we then outline key features for designing a clinical program within the context of a practical example. these key features include a whole of program approach, objectives, format and assessment. we argue that the unique clinical opportunity lies in encouraging students to critically analyse the law of lawyering including the various codes of practice and their rationales within a framework of access to justice issues, a client centred approach and a recognition of the public role of a legal practitioner. this approach is built on the australian experience of clinical legal education. 104 journal of clinical legal education december 2005 * school of law, la trobe university, australia. 1 this article is based on a paper given at the third international journal of clinical legal education conference and eighth australian clinical legal education conference july 2005 melbourne, australia. the authors are grateful to the helpful comments from two reviewers. we conclude that if clinical legal education is to be more than practical legal training clinical teachers and program designers need to be wary of the easy option of simply perpetuating an uncritical acceptance of the law of lawyering. we submit that unless clinical law teachers make the intellectual and practical effort to articulate their own approach (model) to legal practice and communicate this to their students, they have little chance of engendering a deep understanding of ethical lawyering in their students. in our vision of the role of clinic in ethics education we aim to provide future lawyers with a range of conceptual, analytical, critical and practical skills with which to engage in the ongoing professional project of exploring what is an ethical legal practitioner. assumptions underpinning our approach the approach we describe in the paper flows from a number of assumptions. we recognise that these views are contestable and for that very reason believe it is important to articulate them. our first assumption is that the role and responsibilities of a legal practitioner include serving the community. good lawyers are more than just expert legal technicians serving the interests of their clients. we think that lawyers should strive to do good. this view stems from an acknowledgement that lawyers hold a privileged position in the community as a result of the community’s direct bestowal on them of rights and privileges. lawyers in australia and elsewhere in the common law world have a virtual monopoly over the delivery of key legal services for fee including a monopoly over advocacy in the courts. in return for the community granting this privilege, lawyers have traditionally espoused a commitment to public service – the ‘service ideal’ – as a means perhaps of earning ‘social credit’.2 membership of a profession entails privileges. members of the legal profession have a monopoly on the right to represent litigants in court for a fee, and to perform certain other kinds of service.....in return, the community expects that they will acknowledge obligations and responsibilities, which override considerations of financial reward and which are not necessarily enforceable either by legal sanction or by the practical constraints of the marketplace. the conferring of privilege and the acceptance of responsibility are two sides of the one coin.3 we consider that ethical practice involves asking oneself what the impact of one’s proposed conduct is on the community as well as on the client. this is because legal practice is a public activity not a private one, with lawyers’ monopolies over certain areas of work entrenched in legislation.4 as stephen parker argues: we have fallen into the mindset that lawyers are part of the private sphere....but the profession they practise is a public one. the duties they owe to the system of justice always prevail, in law and in professional ethics, over the duties they owe to their clients or themselves or their partners. pushing the boundaries or preserving the status quo? 105 2 larson, ms (1977) the rise of professionalism: a sociological analysis. berkeley: university of california press ltd. 3 gleeson, m. (1999) `honest and liberal practice’ 73 (7) law institute journal 78 4 for example in australia each state has legislation regulating the practice of law. eg: legal profession act (vic) 2004; legal profession act (nsw) 2004; legal profession act (qld) 2004; legal practitioners act (1981) sa; legal profession act (tas) 1993; legal practice act (wa) 2003. a similar regime exists in other common law countries eg courts and legal services act 1990 in the uk. they hold a position or office. they do not merely do a job. we have lost sight of the public nature of a lawyer’s position.5 our second assumption is that the clinical method of legal education, properly implemented, offers unrivalled opportunities for exploring and examining the ethical dimension of legal practice. the key to this assumption is the existence of spontaneity or ‘randomness’ in the clinic environment. this provides a rich and realistic learning opportunity for both individual student practice and group discussion that shares their experiences and application of ethical decisionmaking strategies.6 while we acknowledge that teaching ethics by classroom problem based learning ensures the curriculum is covered, our experience is that every aspect of legal practice (not just student clinical legal practice) and every case, no matter how simple, illustrates the nature of the lawyer-client relationship and the ethical dimension of legal practice. for example, a nonenglish speaking client with an adult child interpreting raises starkly the question “who is my client?” with attendant issues of obtaining instructions and advice. it also raises significant access to justice issues (for example, language and cost). our preference for the clinical as against simulated teaching method is founded on the richness of our experience as teachers in that environment where teacher and student are confronted with unanticipated ethical dilemmas which must be analysed and resolved. our third assumption is that law teachers, especially clinical law teachers are inevitably role models for their students. this idea of law teachers as role models is not new. carrie menkel-meadow in 1991 argued that law teachers cannot avoid teaching legal ethics simply because they project an approach to lawyering in the way they teach.7 clinical law teachers are in the hot spot.8 for many law students, we are the first legal practitioner they have ever met. our credibility is high because students see clinical teachers as “real lawyers” in contrast with other members of academic staff. we therefore need to be aware, as gary blasi says, “in these areas [of ethics, morals and justice] our example can be absolutely critical.”9 this by implication requires the clinical law teacher, who is also an advocate and practitioner, to consider the model of lawyering that they adopt. 106 journal of clinical legal education december 2005 5 parker, s. (2001). ‘why lawyers should do pro bono work.’ 19(1 and 2) law in context 5. parker is reiterating the view of the public nature of the professional role expressed by two influential reports into legal education in australia. see, committee on the future of tertiary education in australia, tertiary education in australia (martin report ) australian universities commission canberra government printer 1964 and committee of inquiry into legal education in nsw, legal education in n.s.w. (bowen committee) (sydney, government printer, 1979). 6 simon rice, (1996), a guide to implementing clinical teaching method in the law school curriculum 9–15. 7 carrie j. menkel-meadow, (1991) “can a law teacher avoid teaching legal ethics?” 41journal of legal education 3. see also american bar association (1986) in the spirit of public service: a blueprint for the rekindling of lawyer professionalism 16; noone, m. a. and j. dickson (2001) “teaching towards a new professionalism: challenging law students to become ethical lawyers.” legal ethics 127. see also discussion in ross, y., (2005) ethics in law: lawyers’ responsibility and accountability in australia (4th ed) butterworths, p 25–26. 8 peter joy from washington university law school in the us has recently written very interestingly on this topic drawing on empirical research into the negative effect on law students’ ethical awareness of role modelling by lawyers in unsupervised work experience, joy, pa. “the ethics of law school clinic students as student-lawyers.” southern texas law review 45 (2003–2004): 815–841. 9 gary blasi, “teaching/lawyering as an intellectual project” (1996) 14 journal of professional legal education 65, 73. the challenge is for clinical law teachers to develop a program/course that fosters the development of a rich and critical ethical understanding by using a variety of strategies for the exploration of ethical decision making. on a personal professional level, part of that challenge for the clinical teacher/supervisor is to model the application of moral judgement and legal knowledge to ethical decision-making. setting the australian scene clinical legal education until recently the most common clinical legal education model in australia was a one-on-one client service model.10 under this definition of clinical legal education it is a legal-practice based method of legal education in which law students assume the role of a lawyer and are required to take on the responsibility, under supervision, for providing legal services to real clients. the students receive academic credit and attend classes. but increasingly, clinical legal education programs now include externships, where students are placed in outside agencies. in these courses the students may deliver legal services to clients or may focus on policy, research and law reform activities. clinical legal education in australia does not usually refer to simulated client environments.11 in australia, clinical courses have traditionally been situated within the community, usually within community legal centres.12 this university-community connection is pivotal to an understanding of the goals of clinic in australia which are both educational and service oriented. legal activism lies at the heart of community legal centres. early centres challenged the status quo and were viewed with suspicion by the mainstream private legal profession. clinical programs based in community legal centres share some of this legacy.13 although not overtly about teaching ethical legal practice, clinical legal education in australia, from its inception in 1975 at monash university, has been doing this. the educational goals of first, a practice based knowledge and understanding of the operation of the law and legal processes and secondly, the ability to critically analyse the practical connection between the current law and legal processes and practical justice, emphasise the public role of the lawyer in the administration of justice. added to these goals is the service orientation of australian clinical programs. traditionally, the legal services of the clinical program are provided to poor and disadvantaged people in the community and the service element is integral to the achievement of the educational goals.14 pushing the boundaries or preserving the status quo? 107 10 giddings, j (2003) ‘ clinical legal education in australia: a historical perspective’ 3 international journal of clinical legal education 7 11 university of new south wales, kingsford legal centre, clinical legal education guide 2005. 12 noone, m. (1997). australian community legal centres – the university connection. educating for justice: social values and legal education. j. cooper and l. g. trubek. aldershot, dartmouth publishing company limited: 257–284. giddings, j (2003) ‘ clinical legal education in australia: a historical perspective’ above n. 10. 13 noone m.a. (2001), `the activist origins of australian community legal centres’ (19) law in context 128. 14 dickson, j. (2000) ‘clinical legal education in the 21st century: still education for service? 1international journal of clinical legal education 33. with the diversification of clinic in australia, the connection to community and commitment to service appears to remain in that externships are most commonly situated in not-for-profit, public interest and community agencies.15 la trobe university’s clinical legal education program has three courses. ethical legal practice and conduct are the primary focus of one unit. this clinic is based within a regional office of victoria legal aid, the statutory legal aid body. another clinic based at the west heidelberg community legal service is centred on poverty and human rights law. a third externship unit addresses the work of a range of public interest law organisations.16 the latter two clinics both address ethical issues within the course content. this paper draws on our collective experience in running a clinical program for over 20 years. external focus on ethics and legal profession over the past 25 years in australia there have been numerous inquiries and resultant reports where the legal profession’s role in the justice system has come under scrutiny.17 many of these reports encapsulated the concerns of sections of the australian community that the regulation of the legal profession and the mode of delivery of legal services contributed to the inaccessibility of the legal system.18 a recurring theme in the reports is a concern that the teaching of ethics in law schools needs to be undertaken seriously as part of the development of a culture of ethical practice in the legal profession. in its 2000 report managing justice: a review of the federal civil justice system, the australian law reform commission (“alrc”) examined the role of academic legal education in shaping the legal culture.19 it recommended that: in addition to the study of core areas of substantive law, university legal education in australia should involve the development of high level professional skills and a deep appreciation of ethical standards and professional responsibility.20 108 journal of clinical legal education december 2005 15 university of new south wales, kingsford legal centre, clinical legal education guide 2005; see also giddings, j (2003) ‘ clinical legal education in australia: a historical perspective’: above n. 10. 16 dickson j., (2004) ‘25 years of clinical legal education at la trobe university’ 29(1) alternative law journal 41; curran, l (2004) ‘innovations in an australian clinical legal education program: students making a difference in generating positive change’ 5 international journal of clinical legal education 162. 17 new south wales law reform commission, first report on the legal profession, 1982; law reform commission of victoria, access to the law: restrictions on legal practice, report no 47, 1992; senate standing committee on legal and constitutional affairs, cost of legal services and litigation discussion papers no 1–7 and final reports 1 and 2. 1991–1994; trade practices commission, study of the professions – legal, final report 1994; access to justice advisory committee, access to justice – an action plan, canberra 1994; reforming the legal profession – report of the attorney general’s working party on the legal profession, victoria august 1995; australian law reform commission, managing justice: a review of the federal civil justice system agps canberra 2000. 18 for a discussion on the impact of this repeated inquiry on the notion of professional responsibility see dickson, j.a. and noone, m.a. ‘teaching towards a new professionalism: challenging law students to become ethical lawyers’ above n.7. 19 australian law reform commission, managing justice above n.17, p113. 20 ibid. the alrc acknowledged that clinical legal education programs offer a rich environment for students to confront and practise ethical decisionmaking. however, it accepted that in australia, law schools generally lacked the level of resources required for a widespread adoption of the ‘live client’ clinical method. see p 118–119. in reaching this recommendation the alrc looked back to the martin and the bowen committee reports into legal education in australia21. the martin report’s recommendations in 1964 for university based legal education were based on the assumption that the practice of law was a public function in the administration of justice. the bowen committee report in 1979 saw the law school as part of the process of “professionalisation”, that is “the development of skills . . .but it also involves the development of a feeling for the professional role – for its responsibilities and limits”.22 in 1982, the new south wales law reform commission (“nswlrc”) in its influential report on the complaints system in new south wales23 took a similar view of ethical decisionmaking as a fundamental skill. the nswlrc took the view that ...it is inadequate to teach legal ethics and professional responsibility as if these are matters of etiquette...rather, these are matters which are bound up in the fundamental nature and essence of lawyering and legal professional practice, which necessitates a process or problem-solving approach to the subject...24 the alrc in managing justice also considered approvingly the approach of the 1992 maccrate report into legal education in the usa25 and in many respects the australian concerns for ethics education mirror those expressed in other jurisdictions.26 as well as these formal government initiated inquiries, academic writing and inquiry has blossomed in australia and elsewhere over the past ten years leading to an increasing literature exploring the nature of ethics in law and ethical legal practice as well as the teaching of ethics in the law school curriculum.27 professional bodies in australia have also come to the realisation that there must be a re-envisioning of the meaning of ethical legal practice.28 nonetheless, there is still considerable debate about what constitutes ethical legal practice. academics and practising lawyers disagree about definitions and the requirements, scope and meaning of ethical legal practice. pushing the boundaries or preserving the status quo? 109 21 above n. 5. 22 bowen committee report, above n. 5, ch 3.30–1 23 new south wales law reform commission (1982) above n.17. 24 ibid para 5.24. 25 report of the task force on law schools and the profession: narrowing the gap legal education and professional development – an educational continuum, (american bar association july 1992) (the “maccrate report”). 26 for example: aclec, first report on legal education and training (london, aclec 1996) para 1.19; nelson, s. reflections from the international conference on legal ethics from exeter (2004) legal ethics 7(2) 160–166 discussing the work of the training framework review group of the law society of england and wales. in canada see committee responding to recommendation 49 of the systems of civil justice task force report attitudes-skills-knowledge: proposals for legal education to assist in implementing a multi-option civil justice system in the 21st century discussion paper, canadian bar association ottawa august 1999 and in the us see american bar association (1986) in the spirit of public service: a blueprint for the rekindling of professionalism. 27 see eg: a recent australian journal edition dedicated to the teaching of legal ethics, (2001) 12 (nos 1 & 2) legal education review, and the collection of articles (both australian and international) contained in, le brun, m.j. et al, improving the teaching and learning of legal ethics and professional responsibility in australian law schools: workshop materials, july 1999 [the materials developed under a national teaching fellowship award]. see also economides, kim (ed), ethical challenges to legal education & conduct, (hart publishing oxford 1998), noone, m. a. and j. dickson (2001)”teaching towards a new professionalism: challenging law students to become ethical lawyers.” above n.7; special issue on teaching ethics in (1999) 33(3) law teacher. see also (1995) 58 law and contemporary problems for a symposium in the us context and nelson, r. l., d. m. trubek, et al., eds. (1992). lawyers’ ideals/lawyers’ practices. ithaca, cornell university press. 28 law council of australia, 2010: a discussion paper: challenges to the legal profession (2004). the professional journals also regularly address issues of professional conduct using the language of ethics. in both the professional and academic literature there are a range of views about the role of lawyers. essentially, we see that the difference is between an understanding of ethical practice which focuses on the lawyer’s role vis a vis client and one which extends this understanding to require and include consideration of the effect of the lawyer’s and client’s conduct on the community. a key element of each view could be the interpretation of the extent of the duty to the administration of justice. as part of this debate various paradigms of lawyering have been put forward. paradigms of lawyering a simplified dichotomy often presented is the distinction between “the client advocate role” and the “legal system advocate role”.29 the client advocate pursues the client’s interest no matter what the consequences. in this role the lawyer is seen as the mere mouthpiece of the client. this is also sometimes described as the hired gun approach. the legal system advocate emphasises the role of the lawyer as an officer of the court. using this model the lawyer takes into consideration the interests of the administration of justice as well as those of their clients. this approach has been expanded by academics in both canada and australia. christine parker recently outlined four paradigms of lawyering – adversarial advocate (the tradition conception of a lawyer); responsible lawyer (officer of the court and trustee of legal system); moral activist (agents for justice through law reform, etc) and ethics of care (relational lawyering).30 parker assesses her four approaches to legal ethics by looking at how the lawyer views the social role of lawyers, the relationship of legal ethics to general ethics and the nature of the relationship between the client and the law. she describes these approaches as a “set of conceptual tools that can be used to guide or assess the ethics-in-practice of australian lawyers”.31 she does not intend these to be seen as stand alone, discrete models. rather they “can be used as a set of considerations that lawyers ought to ‘respond’ to in deciding what to do in any particular situation”.32 canadians buckingham and others describe three approaches to lawyering: the adversarial/ traditional lawyer, the merchant lawyer and the responsible lawyer.33 in the adversarial approach, legal practice centres on the existing interests of the client, whatever they may be. it is based on the adversarial nature of law (the criminal courtroom) where winners or losers are defined by the rules of the game. legal ethics are also seen in this context. if a lawyer acts (plays) within the rules then their conduct is ethical irrespective of other considerations. the moral universe of the lawyer is thus one dictated by the role of the lawyer within the adversarial system.34 this narrow focus requires lawyers to vigorously adopt their client’s position as their own. this leads to role differentiation where the lawyer has to separate/ delineate their own personal being from their role of lawyer. they do things for their clients that they would otherwise find immoral. they must constantly justify their actions to themselves and others.35 110 journal of clinical legal education december 2005 29 as detailed by chernov a.(1991) ‘the lawyer and morality’ 18(1) brief 6; ramsey, i.,(1992) ‘ethical perspectives in the practice of business law’ 30(5) law society journal 60. 30 parker, c.,(2004) ‘a critical morality for lawyers: four approaches to lawyers’ ethics’ 30 (1) monash university law review 49 at 56 onwards. 31 ibid at 74. 32 ibid. 33 buckingham, d., bickenback, j., bronaugh, r. & wilson, b., (1996) legal ethics in canada theory and practice harcourt brace canada. 34 ibid. 35 wasserstrom, r, “ lawyers as professionals: some moral issues” (1975) 5 human rights 1 as quoted in ross y, ethics in law (2005) above n. 7, p 34. the merchant lawyer approach is the one that many would now say is the dominant one, where the lawyer is principally a business person. the prospect of immediate financial gain is more important than professional responsibilities. the suggestion is that at the beginning of the 21st century, commercialism has won the day. this is not a recent criticism.36 however, the increasingly global nature of large law firms with the associated escalation of profits and inevitable changes to the work environment of individual lawyers suggests that the incentives to adopt this approach are stronger now.37 the responsible lawyer approach recognises that lawyers not only play several professional roles in their careers, they also serve a variety of other social roles. it might be called the whole lawyer or whole person approach. it is critical of the adversarial approach. the lawyer has their own moral convictions to deal with but also issues wider than the particular client. for example this lawyer considers the consequences for the opposing party, third parties, the legal system and the lawyers own integrity. this approach requires a full assessment of the client’s needs. a more generous understanding of ethical lawyering is achieved when it is viewed as a vocation that enables the integration of social responsibilities and personal convictions.38 it is our view that as clinical teachers, our obligation and challenge goes beyond merely reacting to pressure for ethics teaching to be embedded in the curriculum. through our teaching, we play an influential role in the development of future lawyers and hence legal culture. this gives us individually, and the law school as an institution, the opportunity to work with and perhaps lead the practising legal profession in a re-envisioning of the meaning and application of ethics in law.39 the contest of views about what is ethical legal practice and the different lawyering paradigms provides fertile ground for debate and growth amongst students to which clinical supervisors can contribute with their blend of practice, academic rigour and reflection. in this way students begin to develop a deep understanding of ethical practice. what is a ‘deep understanding of ethical practice? as clinical teachers we cannot avoid engaging our students in discussion of the meaning and extent of ethical legal practice and in our view, the aims of those discussions are to challenge conventional and narrow interpretations of ethical conduct, the status quo, and to push the boundaries of our own and our students’ understanding of the requirements of an ethical lawyer. in a recent student exercise at the beginning of the clinical course legal practice and conduct (focussed on ethics and law of lawyering), there was surprisingly clear and consistent views among the group as to their understandings of the requirements or meaning of ethics in law. in the first class the students were asked to work in groups to write short descriptions of their understanding of ‘ethics’ as applied in the practice of law. the aim of the task was for the students to explore and pushing the boundaries or preserving the status quo? 111 36 kirby, m., ‘billable hours in a noble calling?’ (1996) 21(6) alternative law journal 257 ; see galanter m & palay t, ‘the transformation of the big law firm’ in nelson, r.l.,trubek, d. m. et al.,eds.(1992)above n. 27. 37 for a recent discussion of the impact of globalism on lawyers’ practices and conduct see, nagan, winston p., ‘lawyer roles, identity, and professional responsibility in an age of globalism’ 13 fla. j. int’l l. 131, 2000–2001. 38 buckingham, d., bickenback, j., bronaugh, r. & wilson, b., above n. 33. 39 adrian evans comments that habitual ethical reflection has benefits for both clients and practitioners – (2003) 77(5) law institute journal 80. alrc managing justice above n 17, bowen committee report above n. 5. articulate their personal views and thereby provide a context for an examination during semester of varying interpretations in the academic and professional literature of legal ethics and professional responsibility.40 the students noted on transparent overheads the following aspects: “integrity, encompassing moral elements, looking beyond personal bias, responsibility to clients and courts, balancing act, beyond the letter of the law, ‘proper’ behaviour, awareness of the issue by professional in position of power, response guided by: society’s values, social good/public benefit, morality.”41 these students were beginning their studies in ethical legal practice but their responses illustrated a broad appreciation of the issues. the majority of students in the class apparently believed that ethics and legal ethics embodies moral choices – ‘right v wrong’ ‘proper behaviour’. there was a belief that ethics and ethical conduct requires consideration not only of personal values but also of wider societal values and the ‘public benefit’. ‘responsibility’ is also a common thread – leading to the question ‘to whom’? do legal ethics require responsibility only to client and court or is there a responsibility to the community? the students’ responses illustrated that they considered ethical decisions are based on a number of considerations beyond the mere letter of the conduct rules or the ‘law of lawyering’. students come to law school for a variety of reasons but a significant number come with notions of ‘helping people’ and ‘doing good’.42 students who do our clinics are self selecting in that they have to apply to do the course (they are not compulsory). it is likely that a majority of those who choose to undertake a clinical subject are already concerned about broader issues of justice and are more altruistic. their resume is also clearly a consideration. ethical legal practice requires an adherence to the relevant rules of professional conduct but as most students quickly realise the codes of conduct are often indeterminate and ambiguous. consequently, ethical legal practice requires more than this. it involves an understanding of the interaction between the rules and morality, between the rules and justice. ethical decision-making involves moral decisions as well as compliance with rules. this pre-supposes that the lawyer knows the rules, has skills of moral reasoning and a developed set of strategies for recognition of ethical issues and resolution of them. in adopting rest and narvaez’ four elements of moral decision making (moral sensitivity; moral judgment; moral motivation; moral character)43, julian webb suggests that ‘failure to act ethically may be the result of a “moral failure” at any of these four stages – a failure of recognition, of judgement, motivation or character.’44 112 journal of clinical legal education december 2005 40 it also of course gave the teacher an insight into the opinions of the group. 41 student responses recorded on transparency and held by judith dickson. 42 see susan daicoff, ‘lawyer know thyself: a review of empirical research on attorney attributes bearing on professionalism’ (1997) 46 the american university law review 1340. see also, western, j,; makkai, t. & natalier, k. ‘professions and the public good’ in arup, c & laster k (eds) for the public good: pro bono and the legal profession in australia (2000) 19 law in context 21. 43 rest, james r. & narvaez, darcia (eds) moral development in the professions: psychology and applied ethics (hillsdale, nj, l. erlbaum, 1994) quoted in julian webb, ‘conduct, ethics and experience in vocational legal education’ in economides (ed) above n 28, 284–285; see also discussion in ross, y (2005) ethics in law above n.7, p 50. 44 webb, ibid. as sampford and blencowe point out, ‘good legal practice depends upon the making of complex judgements about a variety of matters not strictly related to the law.’45 competence and ethics are, in our view, intertwined. a lawyer has both a contractual and an ethical duty of competence and in many situations the nature of the advice given to a client is founded on a judgement (a moral judgement) about what is both legally and ethically correct. sampford and blencowe argue that ‘at their best [law and ethics] are mutually supportive, with ethical principles providing the principled justification for legal rules and offering valuable interpretive tools for legal rules as well as the basis for a supportive ethical culture.’46 confronted as clinical law teachers with students who hold the ideas shown earlier, as well as by those with more directly self interested motives for studying law how do we proceed? we believe that our task as clinical teachers is to provide our students with a clear framework for ethical decision-making and to model the process of that decision-making. as educators we need to be constantly thinking about ways in which we can present our students with possibilities for regular opportunities to tackle difficult ethical issues in the broader context of the society around them. in our experience such an approach creates huge interest for the students and they rise to the occasion with vigorous debate and questioning. in 1997, brett walker qc, then president of the law council of australian stated: the australian legal profession must continue to examine itself and the legal system, in order to push sensible reforms and save the community impracticable experiments with the administration of justice....the australian justice system is a good justice system, with a sound international reputation but of course, no system is ever perfect, and – like all professional sectors – the legal system can be fine tuned and improved.47 similarly, baxt in a discussion of ethics and law reform recognized a role for lawyers in ensuring the maintenance of cherished rules for the protection of citizens and the need “not to want to see the other extreme laws being piled on laws simply because there has been no enforcement in the past.”48 the australian law reform commission has recognized that law schools can foster a sense of public responsibility in budding lawyers. it states that “education, training and accountability play a critical role in shaping the legal culture and thus in determining how well the system operates in practice”.49 it goes on to state that it is evident that, “while it is of the utmost importance to get structures right, achieving systemic reform and maintaining high standards of performance rely on the development of a healthy professional culture.”50 in order to facilitate discussion of these various aspects of ethical legal practice and the various paradigms of lawyering, the design of the clinical program (implementation of the method) is pushing the boundaries or preserving the status quo? 113 45 sampford c. & blencowe s., ‘educating lawyers to be ethical advisers’ in economides (ed) above n 27, 319. 46 ibid. 47 press release: lawyers must keep driving justice reform, to ensure sensible change, 2 october 1997 see http://www.lawcouncil.asn.au/read/1997/1957000630. 48 b. baxt ‘the role of regulators’ in coady, c. a. j., & sampford c. j. g., (eds) business, ethics and the law (1993) the federation press, p 80. for some interesting discussions of the important role of legal practitioners in combating systemic injustice see: hambly, a. d. and goldring, j. l. australian lawyers and social change, (1976) law book company sydney particularly the opening remarks by h c coombs pages 1.4, and robertson,c., ‘the demystification of legal discourse: reconceiving the role of poverty lawyer as agent of the poor’, (1997) 35 (3) osgoode hall law journal. 49 alrc managing justice above n. 17, chapter 2 page 1. 50 ibid. critical. in discussing the issues of program design to enhance a deep understanding of ethical issues, we draw on a recent practical problem from one of clinics. designing a clinical program with ethics in mind our suggestions for program design are based on our combined experiences, including our specialist ethics clinic, but are intended as generic on the basis that an objective inherent in every clinical program is ethics education. we consider that the critical design features include: 1 whole of program approach – supervision expertise a whole of program approach means that directors have a responsibility both to the students and to their supervisor staff, to ensure first, that supervisors understand basic principles of adult learning, secondly, that supervisors have a developed knowledge and understanding of ethics in law and finally that the individual programs are structured in such a way as to provide opportunity for debate and discussion. program design (as against individual course design) needs to acknowledge the importance across the program of these elements. critically, for a program director, is the further factor of expertise of clinical staff. with the expansion of clinical programs it could be difficult to find competent and experienced practitioners who want to work in the university environment. the temptation might be to focus on legal competence and hope that supervision skills come with time. most australian clinical supervisors have learned ‘on the job’. however, in clinical programs, the quality and structure of supervision is critical to the students’ learning experience. the supervisor is the role model, perhaps the first legal practitioner that the student has ever met. the supervisor and the clinical law teacher, cannot avoid teaching legal ethics.51 if the formal objectives speak of ethical awareness but supervision practice ignores engagement with these issues or if there is little guidance in reflections, then the ethic being modelled is contrary to that espoused. a program director can adopt a number of methods of professional development of supervisors. these include formal supervision training, peer supervision and mentoring and ongoing independent evaluation and reflection. all are valuable. we have found the latter method particularly useful. the university’s academic development unit conducts a formal workshop with the students in the absence of their supervisors. the aim is to frankly assess the program and identify what works well and what can be improved. this invaluable process encourages us to revisit the stated objectives of our clinical courses, to re-examine the content we teach in the classroom and in the clinic, and to scrutinize the approach to lawyering we model through our practice and assessment. 2 clear objectives related to ethical practice and practice of justice most universities require the subject outline to state the objectives of the course. we suggest that these include the development of knowledge and understanding of the ethical obligations of lawyers. we expect that most programs do include such an objective. for example, at monash university the professional practice subject includes an objective: ‘(5) an understanding of 114 journal of clinical legal education december 2005 51 menkel-meadow: above n.8. professional legal issues of ethics and morality.52 the university of new south wales clinical legal experience entry in the handbook includes the statement that the course aims ‘to engender in students an appreciation of the ethical, social and practical complexity of the legal system’.53 at la trobe, the students enrolled in our specialist ethics clinical course, legal practice and conduct are encouraged: to see legal practice as socially situated and hence as ethically complex; to reflect on the nature of the lawyer’s relationship with a client including issues of power and trust; to evaluate ethical conduct in a practical context using a range of frameworks including: professional rules of conduct, legal practitioner’s own moral/ethical framework, legal practitioner’s responsibility to administration of justice in a manner conducive to advancing the public interest. legal profession’s commitment to serving the community, to analyse what constitutes ethical legal practice and to reflect on the level of responsibility individual legal practitioners have to pursue justice.54 3. content we suggest that the reading materials and other resources for the course should include reference to the different models of lawyering discussed earlier. reading materials may be accompanied by questions requiring students to consider their own approach to lawyering as they practise it in the clinical context. we also suggest that in teaching communication skills – listening, questioning, interviewing, we emphasise their connection to performance of ethical duties. without doubt, empathetic and careful listening and skilful questioning leads to a lawyer obtaining necessary information to effectively assist the client. competence is an ethical issue. 4. format clinical units should be designed in such a way as to provide regular opportunities, in group and in one on one interactions, to discuss and tackle ethical issues. time to reflect and the flexibility to allow for this, needs to be built into the program design. the format of the day should include opportunities for questioning, thinking, challenging and identification of legal and ethical issues that might be missed or which may need further examination. there is always a tension involved here as the demands of the day build up. there are many client issues to be settled and supervised and each student needs to gain the supervisor’s time. the challenge is to balance these competing priorities and ensure that the temptation for example not to hold the all important debrief is resisted. students can also learn from the way in which the supervisor manages to settle priorities and juggle the time but still give space to the important issues as and when they emerge. in our view a clinic needs to have clear provision for both informal and formal discussion with students. regular built in team discussion time, perhaps over lunch or afternoon tea, brings the focus from the specific to the broad. we suggest that each student team meet in this way with their supervisor on each clinic day. this allows the experience and insights of one student to be shared with all. adhoc one-on-one supervision is also essential. again in the real client clinic, this may arise in the course of client interviews or file work. pushing the boundaries or preserving the status quo? 115 52 http://www.monash.edu.au/pubs/handbooks/units/law5216.html 53 http://www.handbook.unsw.edu.au/undergraduate/courses/2006/laws2304.html 54 unit outline. in the externship situation where the university clinical teacher is not present on site, we believe it essential that the campus component include supervision sessions to discuss the challenges students may confront, as well as the formal class time focussing on the relevant theory. the following scenario provides an example of how this design feature is relevant to achieving the goal of deep ethical understanding. conflict of interest situations are the most frequent ethical issue confronting legal practitioners. this scenario demonstrates how the supervision/teaching and clinical unit design can allow a deeper exploration of legal ethical approaches and the tensions these can create for student and supervisor alike. a conflict scenario john and mary (husband and wife) are seen together in the clinic by a student lawyer. centrelink, the social security administrator, has raised a debt against each of them relating to their failure to declare the whole of the husband’s earnings. john’s wages were paid partly in cash and partly declared on a payslip. john and mary did not declare the cash wages and as a result each continued to receive a social security benefit when they were not entitled to do so. john’s social security payment has been stopped. mary is receiving a disability support benefit and john was on an unemployment related payment. neither john nor mary have yet been charged with criminal offences relating to the failure to disclose but a legal aid application form is completed by each and student takes responsibility for file. two weeks later john and mary return to the clinic after some more contact from centrelink and to bring in financial information for the legal aid application. they have still not been charged with criminal offences. it is a short information exchange which includes some advice to john and mary about the range of likely penalties if convicted on criminal charges. the potential for conflict of interest is easily identified by the student lawyer during the first interview.55 at the mid first interview stage, the discussion with the supervisor focuses on the immediate situation and procedural steps. the aim is to clarify whether there is any difference of position between john and mary and to flag the potential of a conflict. it is essentially a rule based discussion. both john and mary are taken on as clients for the purposes of advice and a freedom of information application. after hearing from the student lawyer during the second interview, the supervisor believes that the matter raises serious conflict issues. in the post interview discussion the student focuses on how upset mary was at the prospect of a serious sentence. the supervision exchange goes something like this: student: and the husband just didn’t seem to want to listen. he kept interrupting when i talked about what might happen with criminal charges. maybe he didn’t want her to hear the bad news, maybe he was just being protective. supervisor: do we know why she is on disability benefit? do you have any sense of disability? student: i haven’t asked but she seems very fragile. maybe she has a mental illness. 116 journal of clinical legal education december 2005 55 in the clinical model used at la trobe university in the real client clinics, the student (or pair of students) interviews the client alone to gather information then leaves for a mid interview discussion with the supervisor in which a preliminary view of the situation is developed. the student then returns to the client to advise, obtain further information, refer out or obtain instructions to act. supervisor: let’s just think about this interview and the instructions we have from each of them so far. i’m wondering if we can take the agreement of john and mary to act together at face value given what you feel after today’s interview. do you think we are in a real conflict of interest situation here? there follows a discussion of the facts known so far and the rules about conflict of interest. supervisor : well, they haven’t been charged yet so we are only helping with a freedom of information application. no-one else is going to help them with that. student : maybe it’s too risky and we should send them away to do it themselves. only thing is i’m worried about mary. she seems fragile and dependent on john. maybe if they get a grant of legal aid when they are charged, we can send them off to private practitioners. supervisor : i’ve had a look at their applications. they won’t qualify. his wage and her benefit exceed the financial eligibility limit. even without a conflict of interest we might not be able to act, certainly not on a plea of not guilty. in our clinic we have to work within legal aid guidelines. student : but they can’t afford a private practitioner. wouldn’t a private solicitor have the same conflict problem we might have? are you saying they have to have different lawyers and pay two sets of fees – on that wage! that’s ridiculous. she won’t go to a different lawyer from him! who makes up these rules about legal aid and conflicts of interest anyway? must be the lawyers! we could just ignore all this and help them out. the clients could be seen by two different students otherwise they might not get any help. we have to do something. this is an access to justice issue! what followed the second interview was a discussion between the supervisor and student, followed up later in the team discussion over afternoon tea, of the practical implications of a strict application of conflict rules. a range of issues was explored by the students and supervisor including: defeating lawyers’ obligations to serve the community; that the obligation to the client may not involve taking the easiest option for the student lawyer; the need for the student to think through the various implications of the different actions a lawyer might take; protecting clients’ right to loyalty; the possibility of more flexible application of rules by allowing separate lawyers within the same firm; lack of legal aid to working poor; structural barriers to accessing justice system (cost, complexity, ethical rules). we consider that encouraging critical analysis alone is not sufficient. the group decides that the key to avoiding depression and defeatism lies in identifying possibilities for action and change. these include working out a way of providing legal services to these clients, perhaps through the already stretched community legal centres, working out how to address the wider ethical issues for the practitioner. is there an organisation examining lawyer’s ethical rules at the moment? would the bar association or law society be interested in developing guidelines? wider still, is it part of practitioners’ ethical obligations to use their casework experiences in law reform? the group decides that conflict of interest rules can have the effect of limiting access to justice and lead to forced self-representation. the students discuss whether the rules are too strict and whether exceptions could be explored when the outcome of a strict application of the conflict rule may result in no legal representation. this analysis of the practice is critical to the teaching mission. as discussed below, if the structures are in place in the clinic, the analysis can be developed into practical expressions of professional responsibility. pushing the boundaries or preserving the status quo? 117 5 clear limits on file/project numbers in a real client clinical program, management of the file load of students is a key issue in enabling space for discussion of systemic and individual ethical issues. too many files swings the balance towards volume service delivery and away from education through service. too few of course limits the opportunity for rich experience. here again, the nature and objectives of the clinic are the reference point. our view, however, is that if, in a university based clinical program, day after day passes without the opportunity for thoughtful discussion of the ethical dimension to the work, then the educational mission is not being achieved. 6 reflective journals the use of journals in professional education is common particularly in the health sciences and teaching disciplines. journals are a tool for the development of the skill and art of reflection, advocated by schon in the 1980s.56 there is an increasing literature on reflection in education and professional life.57 clinical legal education, like clinical education in other disciplines is the obvious place in the curriculum for students to learn this skill. a clinical program can be designed to incorporate a compulsory journal, either for assessment or as a hurdle requirement. setting clear goals for the journal is important as well as clear assessment criteria (if assessed) and providing clear timely feedback (modelling). the journal is an opportunity for students to explore the ethical implications of their daily practice through ‘reflection on action’.58 in our program we use a compulsory journal, assessable in two courses and a hurdle requirement in the other. we have found that after some initial reluctance, students embrace the opportunity and report its value in enabling them to reflect on their practice and pull issues together in their mind. in our experience, journals are particularly useful in externships, allowing students to raise ethical and other issues in a general way but in a way which enables feedback. in the west heidelberg clinical course, where the primary focus is poverty and human rights law, the journals are used as one tool for drawing out the legal ethical dimension of the students’ experience. in the journal students discuss their interviews and case progress; reflect on their performance as lawyers and how they might improve; difficulties they encountered with clients and any ethical dilemmas and tensions they face and how they might deal with them both professionally and personally. the journal gives the supervisor the opportunity to engage with the students on these issues and to follow the progress of each student. 118 journal of clinical legal education december 2005 56 schon, d., the reflective practitioner (1983) josseybass, san francisco and his later writings 57 see eg: moon, jennifer a., reflection in learning & professional development: theory and practice (1999) kogan page and the references there. 58 ogilvy j.p., ‘the use of journals in legal education: a tool for reflection’ (1996) 3 (1) clinical law review 55. we drew on ogilvy’s work in designing the journal component of our program. the goals of the journal in our ethics clinic are: to provide regular student feedback to the supervisor on the student’s progress in understanding the role of a lawyer, ethical duties, professionalism; to identify gaps in the student’s understanding; to promote reflective behaviour; to exploit the connection between writing and learning; to foster self awareness; to relieve stress. 7 assessment educational research clearly shows that students see the assessment in a course as a firm indicator of what is important in the content.59 it is essential that in the clinical course, like any other course, the assessment is closely related to the stated objectives of the course. the clinical environment offers a range of assessment opportunities consistent with university requirements. the written course material should inform the students how the assessment is designed to assist them achieve the course objectives. importantly the performance assessment needs to integrate ethical development with other skills’ development one way to do this is to formulate the assessment criteria in the language of ethical duties and ethical practice. as stated earlier, our view is that every aspect of legal practice illustrates the ethical nature of the lawyer-client relationship. criteria for assessment of written communication skills, for example, might include a criterion such as “demonstrates knowledge and understanding of rules of confidentiality” and “demonstrates understanding of relationship of trust”. at assessment time, the ongoing record keeping easily identifies a student whose work fails to meet these measures. given the natural importance of assessment to students, it is only fair that the clinical teaching support this approach. written assessment must, as stated above, align with course objectives. however, no matter what the specific context of the clinical program, an assessment piece which requires students to think about law in its public operation, and legal practice as a public activity, is assessment which encourages students to a wider and hopefully richer understanding of their ethical obligations as lawyers. as an example of this approach to assessment, we redesigned one of our real client programs giving it a human rights focus and introducing a law reform project as the key written assessment. the renovation came about from an evaluation of the course which included listening to the students’ views. the students were clear that simply doing the casework, even with discussion about its implications, was not enough. they felt strongly that the casework raised an obligation – ethical obligation – to address the broader issues emerging.60 modelling ethical practice we return to our third assumption, namely, that clinical law teachers are role models for their students. a clinical program and clinical units with the design features we propose stand as a clear statement to the student participants by the law school that a deep understanding of the ethical dimension to legal practice is a fundamental skill required of lawyers. we argue that ethical practice goes beyond mere adherence to rules and requires a lawyer to consider the implications of those rules for access to justice. while not every busy practitioner can engage in law reform activities personally, the most recent edition of the public interest law clearing house (pilch) newsletter noted that “lawyers in the private profession are expanding pushing the boundaries or preserving the status quo? 119 59 johnstone and lebrun, (1994) the quiet revolution:improving student learning in law (sydney law book co.) and johnstone, r., (1996) printed teaching materials: a new approach for law teachers cavendish publishing limited pp.42–46. in australia the commonwealth government has funded research into assessment in higher education and development of practical resources. see: assessing learning in australian universities project: http://www.cshe.unimelb.edu.au/assessinglearning/about.html 60 curran, l., ‘innovations in an australian clinical legal education program: students making a difference in generating positive change’, above n. 16. their pro bono involvement beyond case work for clients to include submission-writing, advocacy and law reform on behalf of clients in their own right” it is observed that this is a “significant contribution to access to justice.”61 in the clinical environment, however, law reform activities provide a practical method of using time, assessment, file work and journal reflection to experience and examine immediate access to justice issues. this enables the students to identify issues they consider the legal profession, ethically, should respond to so that ‘the legal system can be fine tuned and improved’.62 in the clinic at the west heidelberg community legal service students must identify an issue emerging in their casework that is in need of law reform or exposure and discussion. topics have included: mentally ill offenders and the criminal justice system, self represented litigants, breach of confidentiality in children’s matters, youth debt.63 the students work in teams of four and in consultation with community legal centre staff. once completed and if to a high standard, the work is released as a law reform submission to government and other relevant bodies. the report entitled: unrepresented litigants: at what cost? resulted from one student’s difficulties in obtaining representation for a client before a tribunal. as with the practical scenario described earlier, there was discussion in clinic of the reasons for the situation. the assessment project provided the opportunity to do something about this issue and improve access to justice. the student and her clinic team conducted research and published a report which was sent to people the students decided were key decision-makers. the students in writing the report had to grapple with many issues related to the role of a lawyer vis a vis their client and the administration of justice. in essence the question raised was the extent of the lawyer’s professional ethical obligation when confronted with inadequacies and deficiencies in the law and legal system? specifically, what should a lawyer do if they see an unrepresented person in court who is clearly struggling? what should a lawyer do where legal aid has run out, they have been acting – do they act pro bono? what is the judicial officer’s role where parties are unrepresented and clearly struggling? if they try to help what does this mean for the administration of impartial justice? what are the broader implications of acting pro bono in encouraging the withdrawal of adequate funding for legal aid or for the client? how can these choices be made? what mechanisms should be considered to enhance access to justice? there can be limitations in using case-work alone to achieve a just result in client cases. physical court structures, uncertainty of outcome, delay and issues of cost can work as an incentive to give up on a case despite its merits. where a lawyer observes the law as problematic and as a revolving door of negative consequences for many individuals, it may be that by simple legislative amendment the situation can be avoided. we refer to our earlier stated assumption about the role of lawyers in the public arena and argue that ethical practice includes a recognition of this role. where clinic assessment and design includes a law reform or similar community focussed legal research,64 the student has to struggle with the requirements of their duty as a lawyer to act only 120 journal of clinical legal education december 2005 61 pilch matters, issue 6, may 2004, public interest law clearing house, melbourne. 62 press release: brett walker qc, president of the law council of australia, lawyers must keep driving justice reform, to ensure sensible change, above n.47. 63 curran, e., (2004) ‘responsive law reform initiatives by students on clinical placement at la trobe law’ 7(2) flinders journal of law reform 287; for a list of reports see appendix a. 64 for example, murdoch university; monash university; la trobe university; university of new south wales; griffith university; university of technology sydney. on instructions and with the temptation to engage in cause lawyering which might be at the cost of their clients.65 they confront the complexities of ethical conduct in this situation but realise that they have the option also of contributing towards improving the justice system.66 for supervisors and teachers in clinical programs we can assist the students in developing the skills that may help them in becoming ethical lawyers of the future and thus have the satisfaction of a possible succession plan as our students, working as lawyers, provide good ethical role models for the younger lawyers with whom they also come into contact in later life. conclusion clinical legal education is a well-respected method of teaching about law and the legal system. however the potential of clinical legal education in enhancing and promoting ethical legal practice is yet to be fully explored. particularly in australia where the links between clinical programs and the access to justice movement remain strong, there is a risk of complacency in the clinical fraternity about the teaching of ethical legal practice. if clinical legal education is to be more than practical legal training, clinical teachers and program designers should be wary of the easy option of simply perpetuating an uncritical acceptance of the law of lawyering. there is a need to look again at the stated objectives of our courses, the content of what we teach in the classroom and in clinic, the approach to lawyering we are modelling through our practice and through the assessment, and importantly how carefully we structure the clinical experience to allow for opportunity for engagement among students and with clinical teachers. we argue that clinical teachers, concerned about engendering a deep appreciation of ethical lawyering in their students, need to focus on certain key design features within their clinical program. in developing these features, clinical teachers can assist students in obtaining a deeper understanding of issues involved in ethical decision-making and the various paradigms of lawyering. within the clinical environment, students can begin to critically analyse the law of lawyering including the various codes of practice and their rationales within a framework of access to justice issues, a client centred approach and a recognition of the public role of a legal practitioner. pushing the boundaries or preserving the status quo? 121 65 a sarat, and s scheingold (1998) (eds) cause lawyering: political commitments and professional responsibilities. oxford: oup. 66 in another recent example la trobe students published a report on youth debt66 due to a concern about the number of their young clients enticed into credit debt and mobile phone debt. the chapter on mobile phone debt generated public interest from 40 national media outlets within twenty-four hours and mobile phone companies issued press releases responding to the concerns raised in the student report. state and commonwealth government responded directly to the student recommendations and are exploring improved regulation of the telecommunications industry. follow up meetings with ministerial staff and advisers and the students occurred. the students were staggered to think that they might just make a difference and more young people in the public arena might exercise caution and be aware of their rights as a result of their modest law reform project: youth debt: a project of the la trobe university law students and the west heidelberg community legal service, january 2004. appendix a since july 2002, the la trobe law students have published the following reports which are available from the west heidelberg community legal service: http://www.bchs.org.au/html /community_legal_service.html 1. unrepresented litigants, at what cost: a report into the implications of unrepresented litigants in the magistrates court of victoria (2002) 2. citizens rights and their rights: a report into the public transport system and citylink (2002) 3. an investment in the future: the juvenile justice system in victoria (2002) 4. police prisons: conditions, overcrowding and length of stay in police cells (2002) 5. working together to break the cycle: a discussion of current treatment and sentencing initiatives for drug dependent young people in victoria (2003) 6. to breach or not to breach: confidentiality and the care and protection of children (2003) 7. a report into youth debt (2004) 8. the crimes (family violence) act 1987: a review of intervention orders, (2004) 9. the perin court: a discussion paper, (2004) 10. the mentally ill and the criminal justice system, (2004) 11. another poke at the pokies: gambling and its legal and social impact on the community. (2005) 12. the impact of law and social policy on the newly arrived somali community: crossing the cultural divide. (2005) 122 journal of clinical legal education december 2005 special issue: european network for clinical legal education 6th conference reflective practice: connecting assessment and socio-legal research in clinical legal education cecilia blengino, università di torino, italy susan l. brooks, drexel university, us marie deramat, universitè de bordeaux, france silvia mondino, università di torino, italy introduction reflective practice represents a core feature of clinical legal education (cle) and has been one of cle’s most important and innovative contributions to legal education. the importance of reflective practice tools in teaching and assessing student learning is well known among clinical legal educators. nevertheless, this field has not fully explored the ways in which reflective practice allows students to investigate legal proceedings and other aspects of law and legal processes. without this research-oriented focus on reflection, clinical legal education risks being reduced solely to skills acquisition, and therefore failing to realize its potential as a vehicle for meaningful and positive social change. focusing on investigating these broader social and institutional dimensions of reflective practice can greatly enrich the ability of legal clinics simultaneously to provide a laboratory for learning law in action, a fertile ground for research, and an instrument for the promotion of rights. yet another dimension of this exploration is the opportunity for clinical law teachers to special issue: european network for clinical legal education 6th conference 55 evaluate our teaching effectiveness and gain insights into ourselves and our immediate and long-term professional goals. this paper shares some initial attempts to investigate the socio-legal dimensions of reflective practice in a sampling of clinical programs across several jurisdictions in europe and elsewhere. these preliminary findings were presented at the most recent encle conference, which took place in turin, italy in september of 2018. for some time now, our ‘transnational team’ --comprised of clinical teachers from us, france, spain and italy1 --has been exploring2 our common interest in researching the multiple roles reflective writing can play as a tool for assessing student learning and as an instrument for socio-legal research. during the session, the team members who were present shared and discussed some possible uses of reflective writing of various sorts, identifying their impact on learning, teaching, and research. this line of inquiry can potentially assist the clinical legal education community to reflect about the reasons for choosing particular tools for reflective practice in our clinical programs. discussion and feedback from participants contributed important input to deepen our exploration and will assist us in developing further theoretical understandings in the future. 1 this work is the outcome of the sharing among professor from different countries: susan l. brooks (drexel university kline school of law, us), josè antonio garcia (universitat the valencia, es), cecilia blengino (università di torino, it), silvia mondino (università di torino, it) and marie deramat (universitè de bordeaux, fr). we presented the session reflective practice: connecting assessment and socio-legal research in clinical legal education at the 6th encle conference “clinical legal education: innovating legal education in europe” held in turin (italy), 20-21th september 2018. the paper is the result of shared reflections inside our team. only in organizing writing, cecilia blengino wrote the introduction and par.1; susan l. brooks wrote par. 2.1; cecilia blengino and silvia mondino wrote par. 2.2; marie deramat wrote par. 2.3; silvia mondino wrote par. 3; susan l. brooks and cecilia blengino wrote par. 4. conclusions are written by susan l. brooks. 2 this collaboration originated through exchanges during various international clinical legal education-related meetings and workshops over the past several years, such as the ones organized by encle and gaje. 1. reflective practice and the epistemology of practice reflective practice can be defined as method that helps individuals and groups think intentionally and systematically about their experiences and actions in order to engage in a process of continuous learning. clinical legal educators view reflective practice “as fundamental to effective lawyering and the professional identity formation of lawyers, including the pursuit of core values, social justice, and personal growth” (balsam et al. 2017-18, p.46). reflective practice undoubtedly is more established and well-accepted in u.s. clinical legal education than in european legal clinics. in the european context, clinicians need to continue their efforts to expand awareness as well as deepen their understanding and further develop the meanings of reflective practice. while our group reflects a range of different contexts and also levels of experience in clinical legal education, most importantly, we share a common socio-legal framework. that theoretical perspective has led us to highlight the crucial role played by reflective practice tools and methods, which can help improve how we and our colleagues teach critical thinking and can support our efforts to overcome a legal positivistic approach to the law. the role of reflective practice is often connected to the assessment of student learning processes by their teachers. this focus undoubtedly promotes the objectives of improving both teachers’ evaluations of students and students’ self-evaluations. further, given that learning is a “the process whereby knowledge is created through the transformation of experience” 83 (kolb, 1984, p. 38), it is easy to understand how reflective practice can also dramatically amplify the capability of cle to provide an alternative to the somewhat dogmatic and artificial attitude toward legal education that unfortunately still prevails in many law faculties, especially in continental europe. operating in a real-world context, clinical legal education allows teachers and students to understand and to experience the great extent to which the exercise of rights is linked to praxis in the daily interpretation of the law, as well as cultural, economic, and social variables. with respect to learning, reflective writing allows students to understand the gap between law in the books and law in action. it also provides a meaningful opportunity for students to evaluate themselves ex post. with respect to teaching, journals and other reflective writing represent a tool to assess our teaching methods and our ability to achieve our teaching goals. with respect to research, reflective journals and other reflective writing represent a kind of analytical auto-ethnography that permit faculty to discover new roads of research using a grounded theory approach. in this way students can become part of the research enterprise. far from being solely a way of introducing practical concerns into legal studies, clinical legal education represents a real-time laboratory for active learning. the integration of clinical training into students’ legal education enables them to take an active role in their learning through a process of reflection on the process itself (garcia anon, 2014, p. 158). in this sense, we can approach the clinical experience as a socio-legal epistemology of law in action, where we recognize the distinctness of theory and practice while conceiving law as a phenomenon which is revealed through practice (perelman, 2014, p. 133 ff.; brooks & madden, 2011-12). as stated by kruse, clinicians “are naturally situated to answer the call for embedded research, which fits closely with [the] social justice goals and reflective practice methods…” (kruse, 2011-12, p. 298). in fact, situating students “in the heart of law in action” places them in circumstances in which they “daily encounter the gaps between what the law says, what it aspires to be, and what legal officials actually do, and are therefore poised to engage questions about the role of law in society.” (kruse, 2011-2012, p. 317-318). in the field of legal studies, reflective practice thus represents a powerful “antidote to the technical/positivist nature of legal education” (evans et al., 2017, p. 162), because of its capability to respond both to the need to improve students’ critical thinking and to orient our work toward the application of social research methods. a number of scholars have offered different articulations of this approach, including considering critical reflection itself as a research method (fook, 2011), emphasizing that reflective practice introduces action research into the study of law (lewin 1946, leicht and day, 2000) and noting that reflective practice offers the chance for a study of law based on grounded theory (glaser and strauss, 1967; charmaz and briant, 2007). reflective practice enhances our awareness of learning as a socially situated iterative process. as pointed out by donald schön, “[e]veryday problems… are not simply pre-defined, but are constructed through our engagement with the ‘intermediate zone of practice,’ which, typically, is characterized by uncertainty, uniqueness, and value conflict.” (schön, 1983, p. 6). moreover, reflective practice is a collective process that involves both students and teachers who become inquirers into their own practices (leicht and day, 2000, p. 183) and therefore have the opportunity to interrogate the legal issues they face from a socio-legal perspective. through the use of reflective practice tools, such as reflective diaries and reports, teachers can identify and assess what their students have learned, and also can use their students’ reflections to guide their planning toward future teaching efforts. students also benefit directly from this process because reflective practice enriches their attitude towards deep learning to underline the relevance of using the tools offered by reflective practice in understanding law, we note the distinction between reflection in action and reflection on action theorized by donald schön. reflection in action is a process that occurs simultaneously with the legal practitioner’s actual conduct, while reflection on action is a process that occurs after the conduct has taken place. as schon articulated through his epistemology of practice, the professional nucleus of the reflective practitioner is formed by these two distinct processes: reflection in action and reflection on action (1983, p. 49). reflection in action takes place through quick processing and its accompanying actions. given that reflection-in-action requires a high level of self-awareness and ingrained habits of reflection, we believe the clinical experience offers meaningful opportunities to improve students’ capability to begin to develop this skill set by making decisions and resolving issues in real time. creating the conditions to support students in cultivating this form of reflective practice is all the more critical because reflection in action by definition remains largely unconscious. reflective practice helps to support reflection in action through reflection on action, that is, a systematic and documented reflection after events have taken place, involving reviewing conduct with the aim to identify strengths and challenges, and consequently to develop different options for future conduct...reflection on action enables recognition of the paradigms that shape our thinking and action, made up of all of our implicit assumptions, frameworks, and patterns of thought and behavior. reflective practice facilitates the deconstruction of these component assumptions, allowing students – as reflective practitioners to assess critically their own conduct, analyze, and inform their future practices, and ultimately, to contribute positively to their developing professional identities. 2. how do we use reflective practice in our legal clinics? 2. 1. experience and aims at drexel university we teach reflective practice in our clinical program in two distinct ways. first, each of the clinical faculty members teaches reflective practice with their own groups of (usually eight) students as a part of their day-to-day supervision of the students and also within a small group seminar format. the teaching of reflective practice at this level would resemble many law school based legal clinics across the u.s. and in many parts of the world. a second, perhaps more unusual and distinctive forum for teaching reflective practice is what we call the justice lawyering seminar (jls), which is a course in which all of our clinic students are enrolled together. unlike the individual clinic seminars, in which a portion of the classroom time would likely be devoted to didactic teaching of the substantive law and practice skills related to the clinic’s subject matter, jls is devoted entirely to the goal of teaching reflective practice. the topics typically covered in jls include: considering questions such as ‘who is the client?’ and ‘what is our role,’ engaging clients effectively, navigating cultural difference, discussing making mistakes and other ethical concerns, exploring work/life balance and wellbeing, identifying different models of lawyering, and defining access to justice. usually also there is also some form of “case rounds,” with the important caveat that students can only discuss clients and cases without identifying or private information being shared, as they are not part of the same law firm. the main reflective writing in the course consists of two graded “reflective analysis” essays, as we now refer to them. we have been using the term reflective analysis for several years (adopted from non-law school colleagues on campus), to emphasize the critical reflection component of these papers and the idea that this is serious work and is part of building a skill set that is as essential to effective lawyering as understanding legal doctrine, reasoning, and analysis. the detailed description of the reflective analysis assignments and assessment rubric is attached as appendix i. the first of the two papers is modeled after a well-known type of assignment given to medical students called a “critical incident report.” students are asked to identify a particular situation or relationship that they have experienced as deeply challenging and disorienting, and to use it as the basis for their reflective analysis. the assignment contains a series of prompts, including: · identify a critical incident; · interpret it from multiple perspectives; · evaluate and explain its impact on you; · evaluate and appraise how you dealt with it; · examine, assess, and evaluate what you have learned from the incident; and · formulate and defend a plan of how you will approach similar incidents in the future. the purpose of using this detailed structure is to give the students a template for doing reflective analysis that they can carry forward into a second, more openly structured reflective analysis paper. in the most recent version of this assignment, we specifically asked the students to reflect on the integration of personal, interpersonal, and systemic/social dimensions of what they have identified as a challenging situation or relationship. this prompt is an effort to help students ‘connect the dots’ between and among their own microlevel experiences and macro-level concerns related to access to justice and social justice more broadly, or as it has been articulated earlier in this paper, “to understand and to experience the great extent to which the exercise of rights is linked to praxis in the daily interpretation of the law, as well as cultural, economic, and social variables.” with respect to assessment of the students’ reflective writing, two key criteria that have surfaced are their demonstration of their ability to question their own judgments and assumptions, and also demonstration of their ability to view a situation from multiple perspectives. these two as well as other important criteria are included in a rubric that is shared and discussed with the students in advance. they also have the opportunity to receive and to process written feedback they receive on their first paper prior to the deadline for submitting the second paper. 2.2. experience and aims at bordeaux university reflective practice has always been integrated into the live client law clinic in bordeaux university, although our methodology has deeply progressed since 2013, when our live client clinic opened its doors. at first, we integrated post-interview debriefing with each team of students to exchange feedback with them about their experiences. this exchange provided a first moment of reflexive practice, essentially on their professional practice and position in relation to others persons. it also offered a place and space for other expressions, for example releasing tensions and working on team conflicts. we decided, however, that we did not have sufficient time to exchange feedback with our students on the social or systemic aspects of cases they dealt with in the law clinic. in particular, all of the discussions were focused on the immediate legal solutions rather than on other important issues that could be identified from these cases or on fundamentally questioning the law regarding its functioning, its impact, its core institutions and processes. as a result of these concerns, we decided to create a separate course devoted to reflective practice for participants in the law clinic. currently we have developed a specific course on reflective practice to integrate simultaneously the self-reflective practice aspect and reflection on rights. first, each student team is asked to work on an analysis of its legal aid case, explaining its interest at different levels: legal, sociological, socio-economic, human, and the difficulties the team has encountered during the experience. based on whatever may be happening in the present moment, the teams are also asked to present a rapid response plan on how to deepen this case, including outside resources to contact to learn more about it. all students participate in a vote to select two cases for in-depth analysis. seminars are then organized by the students on the selected cases, including inviting other actors to discuss them as well. it is important to note that the actors include professionals from other disciplines as well as legal professionals. the course ends with each team writing a report called “beyond the case.” the teams are expected to discuss the implications of the law in an inter-disciplinary analysis and to identify possible changes. one part of the report is a personal reflective report, describing and analyzing one personal aspect of their experience (appendix ii). they are expected to determine the competencies they have acquired at that point as well as ones they need to improve. this report forms the basis for the final evaluation of the law clinic students. 2.3. experience and aims at the university of turin in the legal clinics on prisoners and human trafficking, both of which are run by the university of turin, we view reflective practice tools as essential for students’ learning and other activities. the clinic on prisoners allows students to conduct interviews with people who are incarcerated inside the prison, which is a very particular and closed context (goffman, 1968). in this clinic, students assist the prisoners’ local ombudsmen in carrying out their institutional function of interviewing prisoners. the clinical law teacher is not always able to be present and observe the specific interview dynamics, and therefore it is critically important to create an effective tool for supervision. the legal clinic for victims in human trafficking presents some similar conditions, since students work at the sites of nongovernmental organizations (ngos) and local institutions assisting their staff in interviewing victims/survivors. in both situations one of the most challenging aspects of the clinical activity is how the presence or absence of the teacher during the interviews of vulnerable subjects is received by the students. it is also important to define the way in which to supervise the students during the activities carried out in the absence of the teacher at the prison or ngo. in responding to these different situations, the clinical faculty has a common focus on close supervision of the students’ experience. in the context of the prisoners’ clinic, a grid of questions is given to the students before their first visit to the prison (appendix iii). the questions posed on this form help direct the students’ attention to what to observe. in this way the students are not overwhelmed by the wide range of stimuli and are able to concentrate on issues considered central by the teacher. the grid of questions for the students working in the prison is extremely useful because it allows them to pay attention to the individual roles of the different subjects connected to the legal field, which helps them to grasp the relational dynamics. once the visit is done, the teachers ask the students to fill out the form and submit it within a few days, to avoid the loss of important information. the students’ responses are discussed together with the teachers and an expert criminologist in a subsequent meeting at the university, highlighting and addressing salient and recurring issues. the grids provided in advance of the visits are oriented toward the students’ own empirical research, guiding them in paying attention to important aspects of a local penitentiary especially during their first entry into the prison where they will be working. in addition to the grids, students also complete reflective practice reports (appendix iv). the reports are additional reflective practice tools that are used to supervise the activities of the students working in the prison, governmental institutions, or ngos in the absence of their clinical teachers. throughout the time students are participating in a clinic, they are asked to reflect systematically on what they have encountered. the reports thus guide our students in addressing the tasks they have been given more effectively in a problem solving direction. we have found that encouraging our students to divide the situations they face into conceptual and chronologically related segments helps them to deepen their ability to learn from those situations and also actively to find ways to resolve challenging tasks. the reports thus serve to improve students’ critical thinking as well as being used as instruments for the teacher to supervise their work. gaining confidence with these tools has not been not easy for our students, who initially perceived them mostly as a way to communicate their emotions and in particular their discomfort to the teacher, rather than as an opportunity to rethink what they had done during the meeting with the client. in response to this situation, we decided to combine all the reports from the first meetings and offer our comments together with the entire group of clinic students. by reading them in class we have encouraged students to try to deepen their insights into the potential reasons for their perceptions of powerlessness, discomfort, etc., with the added value of peer sharing. it is important to emphasize that the role of the clinical faculty in this classroom discussion is distinct from that of psychologists or psychotherapists. for instance, when a given operator seems to refuse the students’ offer of collaboration, and this situation gives rise to the students’ feeling of powerlessness, the teachers have the students consider the range of potential reasons that person may have acted in that manner, including how he interprets his role and which legal resources could be useful to him. the teachers’ response is therefore engaging the students in reflective practice rather than offering psychological counseling or psychotherapy. following such a classroom discussion, an approach that works very well is inviting students to revisit their original responses to the questions, highlighting the parts they were able to reflect on with new perspectives. in general, the working method in this clinic is based on a first step of guided observation of the context, analysis, and description, followed by shared feedback and reflection, and then new analysis. the initial objective of the reflective practice reports was to have a tool to surface the legal questions from the students’ meetings with those seeking legal assistance, that is, helping the students identify the elements that needed to be considered from a legal point of view and also those that needed to be set aside or referred to other professionals. at the same time, the reports served to reassure the students during the practical activity, knowing that they could address and receive guidance from the teachers through the reports. in time, what emerged very clearly was that the reflective reports could be used to highlight the dynamics of power between the various actors and, above all, to analyze the gap between law in action and law in the books. through careful analysis of a significant number of reports, we have been able to draw further meaningful insights: the students' ability to gaze inside of some of these realities has allowed them to investigate "shadowing," thus highlighting some new lines of research through the grounded theory methodology. so the students have found themselves, almost by chance, to have a very useful tool also for socio-legal research. 3. models for reflective practice reports during their activities the clinical students need to be encouraged to develop knowledge and skills that allow them to experiment in a certain field. and yet, they also need to be supported in that process. reflective reports represent an important tool to help guide and direct students in their learning process. in this section, we consider four of the main models to promote reflective practice: (1) the kolb cycle (1984); (2) the gibbs cycle (1988): the atkins and murphy model (1993): and (4) the mezirow model (2000). using an actual situation that occurred during one of our clinic’s activities as a sample may facilitate a richer understanding of these models, as well as their teaching aims and potential. the case deals with legal aid offered by law students to assist inmates. the clinical teachers proposed that some inmates who are also students--meaning they study law in that prison-join the clinical students to carry out the consultancy activity. during this time it turned out that no other inmates ever showed up, and so the ‘expert’ inmates remained to talk with the students for three hours. the law students struggled a great deal with this situation and how to integrate it into their learning. for us as clinical teachers, it helped to highlight the point that we need to provide our students with more adequate tools to allow them to address issues and unpredictable events more effectively and to reflect on such situations in order to learn from them. the kolb cycle (1984) proposes a four-point scheme: plan, do, reflect, and integrate lessons learned into future planning. first, a concrete situation needs to be planned, and second, experienced. third, it is necessary to reflect on the experience, to try to extract the concepts and to learn from the experience. finally, it is necessary to plan and bring out what has been learned. this model, which seems very simple, in reality requires from students a great deal of self-directedness in defining what has been learned. in an experience like the legal clinic where there are many and varied stimuli, this can be very complicated. students can reflect on the experience using the kolb cycle. however, they may interpret a situation like the one just described simplistically; based on that one instance, they may decide that the inmates do not really need a help desk in the prison to provide legal advice, and therefore, the clinic’s resources could be better utilized elsewhere. the gibbs model (1984) presents six precise questions that specify a very clear path for reflection, and may help the students to deepen their reflective capacities so they can go beyond their initial impressions. students are asked to answer to the following questions: (1) description: what happened? what, where, and when? who did/said what? what did you do/read/see hear? in what order did things happen? what were the circumstances? what were you responsible for? (2) feelings: what were you thinking about? what was your initial gut reaction, and what does this tell you? did your feelings change? what were you thinking? (3) evaluation: what was good or bad about the experience? what pleased, interested or was important to you? what difficulties were there? who/what was unhelpful? why? what needs improvement? (4) analysis: what sense can you make of the situation? compare theory and practice. what similarities or differences are there between this experience and other experiences? think about what actually happened. what choices did you make and what effect did they have? (5) conclusion: what else could you have done? what have you learned for the future? (6) action plan: what will you do next time? if a similar situation arose again, what would you do? the advantage of this model is that it provides a structure for an “enactive” approach to teaching. enactment theory is taken from the studies of maturana and varela (1984), who shift the idea of scientific research from strictly biological observations to concepts of value also other contexts of human life. in the foundations of this epistemological theory, p. g. rossi (2011) recognizes and appropriately refers to the field of human learning and added concepts of embodied cognition, learning by doing, and research-based teaching, all of which form the basis for a new and more modern didactics. rossi explains how the enactive model can be applied consistently to the teaching/learning relationship, considering all the agents, not individually, but rather in the structural whole they create by growing together. when contrasted with the constructivist approach to teaching, the main differences are related to enactivism’s greater attention to the relationship between subject and environment rather than the structures within the individual, along with the use of the body, perception, gestures, empathy, and the use of technology. in the gibbs model, peoples’ gestures and sensations assume importance. in this sense it offers the opportunity to pay attention to the "third dimension" of the law"--the approach shared by "rebellious lawyers" (white, 1988, pp. 760-762) that emphasizes the need for "translating felt experience into understandings and actions that increase the power of vulnerable people." in this manner, the gibbs model can help students compare law in action and law in the books. the students waiting for the inmates who didn’t arrive at the counter experienced feelings of frustration. in evaluating the benefits and challenges of this experience, significant weight can be given to the unexpected extended interview of the “expert” inmates, who offered the law students their vision of important unmet needs within the prison. by analyzing the situation in this manner, students may well be able to recognize and value their experience differently, to the extent that that they have received important information that can be shared with the larger population of inmates and revisited with them during a future visit. the atkins and murphy model (1993) proposes five steps for reflection: (1) become aware of discomfort, or action/experience; (2) describe the situation, including salient, feelings, thoughts, events, or features; (3) analyze feelings and knowledge. identify and challenge assumptions. imagine and explore alternatives; (4) evaluate the relevance of knowledge. does it help to explain/resolve problems? how was your use of knowledge? (5) identify any learning that has occurred. with respect to this model, one of the central aspects is the attention to possible alternatives and the way in which to use one's own knowledge. turning back to our example, law students could use this model to analyze and reflect critically on their role and adapt their approach in order to take advantage of the changing situation. what emerged from the extended conversation with the student inmates was a strong concern about many difficulties connected to the path of exiting the prison and social reintegration. through more conscious reflection using steps three through five of this model, the law students could shift their focus to working collaboratively with the student inmates to come up with ideas for addressing their concern about reintegration, drawing upon the legal knowledge of both groups finally the model of transformational learning of mezirow (2000) offers additional guidance for improving clinic students’ ability to engage in reflective practice. while the first steps of this model resemble the previous two models, it is distinctive in terms of its heightened focus on the moment of sharing, the potentially transformative nature of the process, the different roles and dynamics that can be imagined, and finally the ability to view the situation from a new and different perspective. returning to the example, by sharing and reflecting upon their immediate reactions, the students can identify their own progression, from the narrow lens through which they initially approached the situation and needs within the prison to their realization, reached through deeper engagement with the student inmates, that the help desk is not the appropriate resource to offer help with the challenges of reintegration. after then working to imagine different ways in which both groups could collaborate, beyond from those initially conceived, the students and student inmates have created a physical resource kit containing a set of materials in which there are essential tools (a bus ticket, a map, a list of dorms or places to have lunch for free) and also a virtual one in which there is legal information regarding issues to keep in mind for reintegration into communities. this information includes, for example, how to check that you still have certain benefits in place, how to find a residence, and how to find a doctor. reflective reports can be the tool for new projects, and also, most importantly, for new lines of research. indeed, the analysis of situations, the dynamics between the different actors, and the gap between the law in action and the law in the books can lead to the development of new research questions. as a result clinical students can go beyond the traditional horizons of “pure research” and carry out research into the reality within which they are acting, which can also allow them to grasp the transformational nature of the process of knowledge and the potentially dynamic and reciprocal relationship between researchers and subjects. 4. reflective practice in action: feedback from our session using a case study we began the session by providing an overview of our shared socio-legal perspective regarding the significance and value of reflective practice in clinical legal education. each presenter then briefly discussed the reflective teaching and assessment tools they use in their own clinical teaching context. next, we engaged participants in a group discussion around the various opportunities and challenges offered by such educational tools using an actual case study from one of our clinics. for this purpose we chose a reflective writing report submitted by a student in the turin legal clinic. in the report the student used the gibbs model as a guide for reflection following an interview with a person who was seeking asylum as an alleged victim of human trafficking. below we reproduce some excerpts of the student’s report to demonstrate how it can be a helpful reflective practice tool, and also offer some of the feedback we received and our responses. in the session we framed the discussion with the following questions for participants: what should or could be the goals of a reflective practice report following this type of interview? what elements of reflective practice arise from such a report? as teachers, what can we learn from such reports and how can we respond to deepen and develop our students’ reflections? in the case we examined, when asked about “what happened,” a student wrote that: “…the second interview in preparation for the territorial commission […] lasted about an hour and a half and we were present, my colleague, a nigerian mediator and the legal operator. in the first part of the interview we explained again to the asylum seekers (then a.s.) what was said in the previous meeting about the committee hearing. she seemed more relaxed than the last time. the appearance. of the a.s. changed to the first "real” question about her past: she became visibly more insecure and agitated […] the interview moves very slowly. the a.s. said several times "i do not know" […]: once she was invited to deepen she didn’t understand the question, sometimes told something more, while others explains "i can not remember, maybe next time i will succeed." she was nervous and cried several times. [...] she found herself in libia, she was locked up in a prison where food and water were missing. some of the other prisoners, both men and women, died. at one point she managed to free herself, but she couldn’t remember”. aside from stating what concretely happened, the structure of the report guides the student to identify the different legal actors who were present, and to describe the asylum seeker’s emotions as they shifted during the interview. this student’s entry thus offers the teacher a meaningful opportunity to improve the student’s critical reflection on a number of levels. for instance, the teacher could highlight the gap between legal procedures in books and in action, by inviting the student to think more deeply about the roles the “nigerian mediator” and the “legal operator” could play in preparing this asylum seeker for the hearing before the territorial commission. the teacher could also asking the student to reflect more on the emotions expressed by the asylum seeker and how the student responded to them, as well as the role emotions play in an interview of this nature and in asylum proceedings more generally. if this student had simply been asked to describe what happened, most likely he would have reported that the interview was unsuccessful, as it was not possible to collect all of the data needed by the clinic from the asylum seeker at this stage. inviting the student to engage in a more systematic and careful review of the different aspects of he interview and the ways it took shape allowed the student to recognize key elements: the slowness of the meeting, the silence and the reticence of the asylum seeker, and her tears, all are potential indicators of being in front of a victim who still needs to be helped and removed from the influence of her enslaver, who may well still be nearby. when asked about the evaluation, that is, what was good or bad about the experience? (what pleased, interested or was important to you? what difficulties were there? who/what was unhelpful? why? what needs improvement? the student response included the following reflection. ....always at the end of the interview, we discussed the psychological status of the a.s. the operator was very confused, because she did not understand how afraid she was to tell certain things and / or great suffering in doing so. we talked about tears and what seemed to us a palpable suffering. also in this case the mediator told us that tears can be fake and they do not have to be taken into consideration. clearly, i do not want to question the work of a mediator who has been doing this work for years. in the specific case, however, they seemed counterproductive: more silences, more attention to the a.s. and even less "freedom" than the legal operator. post-interview we were confronted with the legal operator on the role of the mediator and she was also perplexed about some choices made…. the importance of self-reflection emerges here from the capacity of this student to identify the key role played by emotions and other important “extra-legal” elements such as the client’s suffering and her tears. further the student has been able to bring a critical perspective to his analysis of this part of the legal proceeding, especially regarding of the capacity or incapacity of the operator to manage it and the “counterproductive” role assumed by the cultural mediator. during the discussion that took place in our session, double-layered critical observations emerged. the structure and specific prompts in the report enable the student both to reflect on how useful an empathic approach could have been in this situation to support the client’s ability to be more open in telling her story, and to reflect in depth on the gaps that the actions of certain actors, such as the mediator, demonstrate between legal procedures in the books and in action. from this perspective, students are simultaneously critically observing difficulties that have occurred in real time to inform their future actions, and they are also participating in a kind of empirical research on legal procedures and praxis. it was clear during the discussion among participants that the use of this report offers a range of different stimuli for reflection, which can be collected by the teacher and can help shape future clinical teaching/learning objectives. the discussion served to highlight the multiple roles and meanings of reflective practice reports and the different aims they can serve for us as clinical legal educators as well as our students. the teaching and learning objectives participants identified using the example presented during the session were wide ranging and featured the following: · assessing the learning process; · involving students in the learning process; · reflecting on challenges posed by the law in action; · becoming more aware of justice issues and systemic issues; reflecting on the lawyer’s role. finally, a very interesting point shared among presenters and participants is the importance of being more transparent and explicit with our students about the roles and meanings of reflective practice. nearly all of the presenters–-even those of us who expressed confidence about the use of reflective practice in our clinics–-admitted that we often use these tools for reflection in our students’ learning process without explaining our full scope of our aims for using reflective practice, including its role as grounded research. 5. conclusions and next steps this collaboration has demonstrated the value of dialogue and sharing around reflective practice among clinical law teachers from different countries and contexts. all of us have gained new insights as well as new tools for teaching and assessing our students as reflective practitioners. we hope to continue this exploration together, particularly around how reflective practice can serve as a vehicle for socio-legal research. we invite our clinical colleagues and future readers to share their materials and case examples with us to deepen and enrich our collective understanding and to help us to make more of a positive difference in the lives of our students, our clinic clients, and the vulnerable communities we aim to serve. references atkins, t.w. and k. murphy (1993). reflection: a review of the literature, in journal of advanced nursing, 18, 1188-92. https://doi.org/10.1046/j.1365-2648.1993.18081188.x. balsam, j. s., s. l. brooks, and m. reuter (2017-2018). “assessing law students as reflective practitioners”. in n.y. l. sch. l. rev., 62, 49, p. 45-67. https://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=1935&context=faculty brooks, s.l. and robert g. madden (2011-2012). “epistemology and ethics in relationshipcentered legal education and practice”. in new york law school law review, 56, p. 331-366. charmaz, k. and a. bryant (2007). the sage book of grounded theory, sage, london. dewey, j. (1933). how we think: a restatement of the relation of reflective thinking to the educative process, revised edn.), boston: d. c. heath. evans, a., cody a., copeland a., giddings j., joy p., noone m. a., and s. rice (2017). reflective practice: the essence of clinical legal education in australian clinical legal education: designing and operating a best practice clinical program in an australian law school, p. 153-178. finlay l. (2008). reflecting on ‘reflective practice’, pbpl paper 52, www.open.ac.uk/pbpl. fook, j. (2011). developing critical reflection as a research method, in j. higgs, a. tichen a., horsfall, d. and d. bridges (ed), creative spaces for qualitative researching, sense publishers, rotterdam, p. 55-64. glaser, b. g. and a. strauss (1967). the discovery of grounded theory, aldine de gruyter, new york. gibbs, g. (1988). learning by doing: a guide to teaching and learning methods, feu, birmingham. kolb, d. a. (1984). experiential learning: experience as the source of learning and development. englewood cliffs, prentice hall, new york. kruse, k. (2011). “getting real about legal realism, new legal realism and clinical legal education”, in new york law school law review, 56, p. 659684.https://open.mitchellhamline.edu/cgi/viewcontent.cgi?article=1383&context=facsch. leitch, r. and c. day (2000). “action research and reflective practice: towards a holistic view”, in educational action research, 8, 1, p. 79-193. lewin, k. (1946). “action research and minority problems”, in journal of social issues, 2, p. 34-46. garcía-añón, j. (2014). la integración de la educación jurídica clínica en el proceso formativo de los juristas” redu. revista de docencia universitaria, número extraordinario “formación de los licenciados en derecho”, 12 (3),153-175. goffman, e. [1961] (2007). asylums: essays on the social situation of mental patients and other inmates, routledge, london. maturana, h. and varela f. (1984). el arbol del conocimiento, (organización de estados americanos, oea. mezirow, j. (2000). learning as transformation: critical perspectives on a theory in progress. jossey-bass, san francisco. perelman, j. (2014). “penser la pratique, théoriser le droit en action: des cliniques juridiques et des nouvelles frontières épistémologiques du droit”, in revue interdisciplinaire d'études juridiques 72, 2, p. 133-153. https://www.cairn.info/revue-interdisciplinaire-detudes-juridiques-2014-2-page-133.htm. rossi, p.g. (2011). didattica enattiva. complessità, teorie dell’azione, professionalità docente. franco angeli. milano. schön, d. (1983). the reflective practitioner: how professional think in action. temple smith. london. spencer, r. (2012). “holding up the mirror: a theoretical and practical analysis of the role of reflection in clinical legal education”, international journal of clinical legal education, vol. 17-18, pp 181-217. http://dx.doi.org/10.19164/ijcle.v18i0.6. white, l. (1988). to learn and to teach: lessons from dreifontein on lawyering and power, wis. l. rev, 699, pp.760-76. appendix i. assignments and assessment (justice lawyering seminar, drexel university) assignments and assessment materials-spring 2018 reflective analysis paper guidelines and evaluation criteria: each student is required to submit two (2) reflective analysis papers. the first paper is expected to be 2-4 pages in length, and the second paper is expected to be 3-5 pages. each reflective analysis paper needs to be written in the form of a reflective essay, including various elements we will discuss in class. students need to demonstrate the use of appropriate sources as well as the ability to question your own assumptions and explore an issue from different perspectives. in-depth research or extensive citations to sources are not required. appropriate sources can include: course readings, ted talks, in-class and blog discussions, relevant outside sources, and anything connected to your pro bono placements and experiences. paper #1: engagement with the spheres of transformation · in this class, we are addressing three spheres of transformation: personal, interpersonal, and systemic. identify a way you have engaged thus far in some level of a transformative experience connected to [at least] one of these three spheres. the basis for your reflection can include experiences in this class, your pro bono placement, your field observation, or in some other outside experience connected to or inspired by this class. · it may be transformative because: · you learned something from it; · it helped you identify an area of law where you now think you would like to work or not like to work; · it helped you identify an aspect of law practice you now want to seek out or avoid; · it led you to question important beliefs or assumptions; · it excited you or surprised you; · it has influenced you in some way; · interpret the experience, taking into account the perspectives of everyone directly and indirectly affected by it. · discuss how this experience has affected you at the personal, interpersonal, and systemic level, including some discussion of the particular sphere(s) of transformation involved. · discuss how you dealt with the experience and how you are dealing with its effects on you. · discuss what you’ve learned from the experience. · formulate and discuss a plan for how you might approach similar experiences in the future. special issue: european network for clinical legal education 6th conference 84 appendix i. assignments and assessment (justice lawyering seminar, drexel university) paper #2: reflective analysis of a topic of your choice the following are some suggested topic areas: · a reflective analysis of an ethical issue that has arisen within your placement. · a reflective analysis of an access to justice or law reform issue that has arisen within your placement. · a reflective analysis of a client related practice issue that arose within your placement. · a reflective analysis of a client interview. · a reflective analysis of your view of the role of lawyers in society in the context of your placement experience(s). · a reflective analysis of your personal goals for the class and/or your pro bono experience, and the extent to which you are achieving those goals, or perhaps have changed the goals as the semester has progressed.. the organization of your papers should generally include the following: (a) a title and appropriate subheadings throughout (b) an introductory paragraph or short section, which identifies the topic/issues, and any important themes. this section needs to inform the reader about what led you to want to discuss this topic; (c) a background section, which provides the necessary groundwork or foundation for your exploration of the topic; (d) a section in which you provide a detailed analysis of the theme/issue(s), including your own well-reasoned perspective or viewpoint. you can feel free to borrow ideas from others, with proper attribution, although this section needs to include your adaptation and integration of those ideas. in addition, it is important that you demonstrate your ability to question your own assumptions and to articulate and explain other perspectives, also with appropriate attribution. this section also needs to include issues or ideas you recognize are worthy of further exploration. (e) a brief concluding paragraph, in which you highlight what you think are one or two of the most salient points and future-oriented ideas, and/or to suggest one or two broader implications of your analysis. these can be lingering questions or issues you intend to work on or explore further. appendix i. assignments and assessment (justice lawyering seminar, drexel university) assessment of content of reflective analysis papers1 dimension 1: clarity of the topic · is it clear what triggered the reflection? what is the writer’s dilemma or puzzle? dimension 2: consideration of relevant alternative perspectives · does the writer include all relevant perspectives, including his or her own? · are the perspectives justified by data? · are they explored in a way that promotes additional reflection? dimension 3: expressions of engagement in reflection · is the writer engaging in deep, analytical reflection? · is there evidence of personal struggle on intellectual/cognitive and emotional levels? · is there evidence the writer is willing to question assumptions? · does the writer make it apparent how he or she came to choose the topic for reflection? · what’s at stake for the writer? dimension 4: lessons learned · is there an explicit statement of what was learned? · is there evidence of movement from previously held or deepening of beliefs? · is there a plan for action or a commitment toward personal or systemic change? the overall criteria for evaluation/grading will be as follows: (a) organization (30%) -completeness -flow/clarity -presentation (b) content (60%) -articulation and analysis of themes -depth of reflection and ability to integrate other perspectives 1 rachel spencer, holding up the mirror: a theoretical and practical analysis of the role of reflection in clinical legal education, 18 int’l j. clinical legal educ 181 (appendix b, quoting michael j. devlin, andrew mutnick, dorene balmer & boyd f. richards, clerkship-based reflective writing: a rubric for feedback, in medical education 2010, 1117-1147, at 1143). appendix i. assignments and assessment (justice lawyering seminar, drexel university) -appropriateness and accuracy of references -originality of thought and/or critique and adaptation (c) overall impression (10%) -choice of topic -timeliness, grammar, spelling, typos, etc. assessment continuum for reflective analysis papers2 describing understanding reflecting transforming nature of account is account is account is description serves the the account descriptive, with little or no reflection. a story is told, but mainly or entirely from one viewpoint. ideas or recollections of events are linked by sequence rather than meaning. descriptive and signals points for possible reflection. events are treated as though they might raise an important question or questions to be asked and answered. there may be reference to another viewpoint. descriptive and accents points for actual reflection. there are references to other viewpoints and external ideas, and analysis of the actions of self or others. there is some standing back from events in an effort to recognize the effect of events on the self. reflective process. account recognizes that the frame of reference for an event can change. events are understood in a historical, social or psychological context that influences reactions to them—in other words, multiple viewpoints are considered. emotional there are no emotional emotional reactions emotional reactions reactions references to emotional reactions, or if there are, they do not get explored or related to behavior of self or others. reactions of self or others are mentioned or clearly influence the writing. such influences are noted and questioned. are recognized and their influence is questioned. an attempt is made to consider their role in analyzing behavior of self or others. are recognized, both in the sense of shaping ideas and in considering how they can frame the account in different ways. reactions may trigger or support a change in perspective. 2 adapted from the work of john kleefeld & michaela keet, university of saskatchewan school of law. inspired by jennifer moon, learning journals: a handbook for reflective practice and professional development (2d ed., 2006), and david kember et al., a four-category scheme for coding and assessing the level of reflection in written work, 33 assessment & evaluation in higher education 369 (2008). the categories here have been chosen to simplify and track a developmental continuum that can be used to characterize reflective analysis. the dimensions are distilled chiefly from moon’s work on learning journals for the professions. appendix i. assignments and assessment (justice lawyering seminar, drexel university) reference there are no there is some there are there are references to literature references to reference to references to to theory, showing or theory theory, or if there are, they are made without apparently trying to understand them or form a view on them. theory, with an attempt to understand it. concepts are treated solely as theory, without being related to personal experiences or practical situations. theory, showing both an understanding and an application of it. concepts are interpreted in relation to personal experiences, or situations encountered in practice are considered and discussed in relation to theory. understanding and application as well as a questioning stance. theory helps to trigger a transformation of perspective—a review of presuppositions from prior conscious or unconscious learning. reference to there are no there is some there are there is recognition experience or references to prior attempt to references both of how prior future experience or connect events to prior experiences—of self practice lessons to be learned for future practice. the description may, though, form a basis for such learning. to prior experience and a sense that events could lead to lessons for future practice. however, the reflection needs to be deeper to enable the learning to begin to occur. experience and lessons for future practice. there is an attempt to use events to analyze progress in attaining learning goals. and others—influence current behavior. points for learning are noted and may be revisited in later accounts. the journal shows growth over a course of study. special issue: european network for clinical legal education 6th conference appendix ii. reflective report on law clinic case, university of bourdeaux reflexive report on law clinic case the structure of this report is orientative. you can if you need use the structure of your choice summary part 1: law clinic case: description and answer proposed part 2: perception of this case · 2.1 cases’s difficulties · technical and juridical difficulties · others difficulties (relation with client, with other colleagues, organization, etc.) · 2.2 case’s interests · technical interest · social interest and or economical one · sociological interest · interest toward clients relations · others part 3 : to go further / what do i learn from this case? · on the juridical level is there a problem of source of law? what about fundamental rights? is there a discrepancy between rule and reality? is there any procedural problems? what about judiciary strategy? about the articulation with other legal disciplines? · on others aspects what do i learn on others disciplines (psychology, sociology, economics, philosophy, health and medicine, etc.) partie 4 : personal feedback reflexive essay on an aspect of your law clinic experience. 89 visit to the prison practical note: please remember that inside the prison it is not possible to bring mobile phones, bags, usb sticks: they must be left at the entrance. we also want to remind you to bring your identity card and be very punctual to respect the time of other people. observation grid legal clinic prison and rights i – university of turin in order to better understand the penitentiary life conditions and the prisoners’ legal needs, attention must be paid to some sensitive aspects during the visits to these institutions. the life inside the prison, in fact, is made up of relationships with people with different roles, of routines, of relationships, albeit mediated, with the outside world. norms and practices regulate these aspects and we must keep them in mind when we move about within. we ask you to read these points before the visit and keep them in mind. in the evening or at the latest in the morning after your visit, (in order to have a "hot" reading) we ask you to answer and send the teacher the completed form: we remind you that the legal clinic works to the extent that each participant is committed to making it work. tutors can direct the next meeting on the more "critical" or less clear points identified through these grids. you will probably not be able to answer all the questions: do not worry. it is not an exam. we ask you to try to answer within the limits of what you have seen and heard. the aim of this tool is to offer you a grid in which to insert the many stimuli that you will receive and then help you to reflect in a "guided" way. 1. methodological note try to describe the path made during the visit in the prison, the modalities with which it was carried out, its duration, the operators encountered (paying particular attention to their respective roles and relationship dynamics), the relationships that have been established with the direction or with other operators, any difficulties encountered, the climate in which the visit took place. 2. characteristics of prison population what is the approximate percentage of foreign inmates, women, prisoners pending final sentence, or under special incarceration? 3. typical day of the detainees person what is the temporal scan of a prisoner's typical day? how many hours can the prisoner spend outside his / her cell in social and outdoor spaces? doing what? special issue: european network for clinical legal education 6th conference appendix iii. observation grid for students visiting the prison (legal clinic prison and rights i, university of turin) 91 4. complaints what are the tools with which prisoners can communicate their requests to the prison management? 5. treatment activities and social reintegration prisoners enjoy an individualized social reintegration project? how often the interviews with the educators and social workers are frequent? 5.1 cultural activities what are the main cultural and recreational activities organized within the institute? (this definition includes the sports activities that inmates can practice within the institution. cultural activities also include the library service that must be present in all institutions and to which it is necessary to verify its use by the detained population and its degree of accessibility). is there a newspaper of prisoners (or similar initiatives)? 5.2 job this theme involves two different issues: 1) what are the internal works of the institute directly managed by the prison administration; 2) what are the works contracted outside to private bodies? 5.3 professional training are there any professional training courses? professional training refers to those initiatives that seek to provide the detainees with professional knowledge that will allow them to be more easily reintegrated (or inserted) into the labor market. 5.4 instruction what are the school courses (of all types and levels) activated inside the prison? appendix iv. individual report after meeting the client. legal clinic prison and rights i, university of turin individual report to be completed after the meeting please give answer to these questions: who is he/she? (who did i deal with? not the name, but the type of story of the person…) how? (how did he/she relate to me/us? what impression did i have?) what? (what did he/she ask me directly? but what does he/she expect indirectly?) why? (why did he/she ask me this question?) when? (when does he/she expect my answer? based on this data i have to give me deadlines: to study, to look for sources, to share with the group, with the teachers…) 92 from the field 107 harnessing ngo internships for student learning: project report submission to the gaje symposium 2021 anahita surya and nupur, centre for social justice, india introduction non-governmental organisations (“ngos”) are amongst the most important actors in the field of legal education. they offer to students what the classroom never can – an opportunity to contribute to addressing real life issues, while equally contextualising what they learn in the classroom. yet, the role of ngos in developing pedagogical innovations in clinical education is often overlooked. similarly, there exists a discord between the internship model and the clinical legal education model. that is, while many ngos offer internships, such internships rarely provide the level of cross learning expected from a clinical program. instead, students are delegated clerical, sometimes meaningless work. a well-designed internship in coordination with university faculty provides an invaluable opportunity for students, ngos and universities to share and coconstruct knowledge. however, the potential of such an arrangement is rarely explored, at least in the indian context. from the field 108 with this as the point of departure, this report captures the experiences and learnings of centre for social justice (“csj”) in promoting practice-oriented learning rooted in field realities through its internship program. while a broad overview of csj’s internship program is provided, the predominant focus is on the organisation’s work during the covid-19 lockdown. about centre for social justice csj is a socio-legal ngo, working in the sphere of rural access to justice and legal empowerment in india. the organisation currently has a presence in three states in india – gujarat, chhattisgarh and jharkhand. inspired by freirean, csj uses the law to fight for the rights of marginalised communities such as women, dalits, adivasis, minorities, labourers etc. in doing so, the organisation works at three levels – providing legal representation to vulnerable communities, building capacities of communities to respond to rights violations and influencing state actors for more sensitive policy responses. drawing on this rich field experience, csj has developed a unique pedagogy of legal education that is profoundly grounded in grassroots realities. csj has thus conceptualised and taught courses in various leading universities across the country on topics such as agrarian reform, law and identity, law poverty and development, legal training pedagogy etc. csj was also the lead trainer for organisations from seven from the field 109 countries as part of brac university’s sails program. in addition, csj has conducted multiple faculty development workshops. centre for social justice and the covid-19 lockdown intervention as an organisation deeply committed to upholding the rights of the marginalised, csj began executing its intervention as soon as the nation-wide lockdown to curb the transmission of covid-19 was announced. commencing in march 2020, the lockdown continued for almost 4 months. its impact on internal migrant workers, unorganised workers, farmers, fisherfolk and many other groups whose livelihoods were jeopardised was devastating. csj’s intervention during the lockdown consisted of the following: 1) facilitating cash and other government entitlements announced for the poor during the lockdown; 2) facilitating return travel and pending wages of internal migrant workers stranded due to the lockdown; 3) pushing for policy responses to address the vulnerabilities of groups for whom no support package was announced; and from the field 110 4) activating the district and state legal services authorities to facilitate the above three points as per their mandate under india’s scheme for legal services to disaster victims (“disaster scheme”)1 considering the volume of work, and the need for timely response, csj engaged interns extensively in its lockdown intervention. csj’s reflections on student engagement from this process form the foundation of this paper. internships at csj – general overview and the covid-19 lockdown experience for csj, internships represent a priceless opportunity to sensitise the youth towards the issues of vulnerable communities, and to introduce a grassroots lens to their university curriculums. internships are therefore a core feature of csj’s broader theory of change. since csj engages in both field operations and legal pedagogy development, interns at csj are exposed to a learning environment that offers far more than a formal on-campus clinical program. to achieve this, csj offers four kinds of internships. each format offers students a unique learning trajectory. 1 for more details on the intervention, see: tala-tod: facilitating entitlements during lockdown (case study x), published in azim premji university, ‘stories of change 2021-2022 volume iii special edition: response to covid-19 crisis by civil society’, https://cdn.azimpremjiuniversity.edu.in/apuc3/media/resources/stories-of-change-vol.3-aug-4-web.pdf. https://cdn.azimpremjiuniversity.edu.in/apuc3/media/resources/stories-of-change-vol.3-aug-4-web.pdf from the field 111 a) intense organised trainings: these internships focus on core legal skills and exposure to field realities through visits to csj’s field areas. currently, csj runs this program in collaboration with the institute of law, nirma univeristy (“ilnu”). this experiment was recognised by agami, a law and justice innovations incubator, and shortlisted as a finalist for the agami prize 2018. the defining feature of this format is that students are expected to immerse themselves in the field, in all its complexity and wonder, and develop skills that are relevant to field engagements. for smooth functioning, a tri-partite agreement is drawn between the students/parents, the faculty, and the organisation, setting out expectations of the program. b) ongoing in-house training: under this format, interns come to the office after their classes and assist in regular work. this could include research, drafting and filing right to information applications, field visits, generating legal awareness material etc. again, the focus is on equipping students to develop skills relevant to field realities and inculcating critical thinking/questioning abilities. c) announced internships for specific tasks: here, students are engaged for specific tasks for a short period of time. this could include analysis of data received through the right to information act, translating legal learning materials, summarising landmark judgments, assisting in field-based campaigns etc. from the field 112 d) online desk research internships. the announcement of the lockdown represented a significant threat to csj’s immersive internship model, and to legal education more broadly. however, it also opened up an opportunity to experiment with remote models of crisis response. moreover, the fact that students’ classes had moved online meant that they were able to get involved in the work more flexibly. csj worked with a total of almost forty students in three batches during the lockdown. the first batch of students came from ilnu and hidayatullah national law university (“hnlu”). these students helped track stranded migrant workers and coordinate with authorities to arrange their food and transport. over 12000 migrant workers were able to return home safely due to the efforts of csj’s interns. the second batch of students from gujarat national law university (“gnlu”) assisted csj in collecting information on pending wages of the migrant workers whose travel csj had facilitated. this data is now being used to influence authorities to take action to settle pending wages. the third batch consisted of students from the previous two batches who continued to remain engaged with the organisation and have been assisting with post disaster tasks. overall, the students undertook the following: from the field 113 ● desk research to seek latest government announcements and case law related to covid-19 and the lockdown. ● tracking stranded migrant working through newspaper reports, social media posts etc. ● registering migrant workers wanting to return home on the government-run free transportation portal. ● coordinating with government authorities regarding transportation as well as food for migrant workers and poor communities. ● interviewing migrant workers regarding their pending wages. ● making audio-video print material on various lockdown entitlement packages for the poor. ● translating recommendations submitted by the organisation to various authorities aimed at mitigating the impact of the lockdown on vulnerable communities. learning opportunities for law students this section will adopt the competency framework developed by the santa clara university2 to expand upon the key learnings of students involved in csj’s lockdown 2 santa clara university, ‘scu law competency model’, viewed on 15 may 2021, http://law.scu.edu/wpcontent/uploads/competency-model-grid.pdf. http://law.scu.edu/wp-content/uploads/competency-model-grid.pdf http://law.scu.edu/wp-content/uploads/competency-model-grid.pdf from the field 114 internship. through this, it will draw out how a well-designed ngo-led internship program can maximise student learning. for ease and succinctness, four competencies have been addressed. these include a balance of cognitive, skill and perspective-based competencies (head-hand-heart). the reason for doing so is to highlight how ngo-based internships are critical for holistic learning that extends beyond information / cognitive heavy classroom learning methods. competencies: legal knowledge (knows the relevant rules and can assimilate new information into the structure of law) and legal analysis (can use analytical skills and reasoning to evaluate legal issues) students engaged in csjs program developed a strong understanding of critical legal documents that are not usually taught at university. most of the students’ work fell broadly within the realm of labour law and disaster response. while some universities have a labour law course, legal instruments of particular import in practice such as schemes of the national legal services authority are not included in the curriculum. furthermore, very few universities teach students about india’s legal framework for disaster response, including the disaster management act 2005 and the disaster scheme. most of the interns’ work required them to understand the intersections of labour law and disaster response in theory and practice, giving the students a wholly unique perspective on often ignored legal instruments. they were simultaneously exposed to the from the field 115 structure of the administration and the different roles played by various officials. this method helped break the silo-based approach to learning practiced in university contexts, wherein different topics are dealt with in isolation, leaving integration and application entirely to the imagination of the student. as part of the internship, the students had to conduct a thorough situation analysis and apply otherwise disconnected pieces of information to the situation at hand, while maintaining a critical awareness of the possibilities of a response mechanism. this allowed them to piece together a complex puzzle and imagine a solution-oriented response, thereby allowing for a more integrated and holistic understanding. competency: research (knows how to find appropriate legal and factual information) the state of research-based education in indian universities is alarming. even some of the better universities that encourage student research only equip students with the skills to undertake secondary research. field based data collection, synthesis and consolidation is conspicuously absent from university education. the tasks involved in the internship helped students develop exactly these competencies. this included interviewing migrant workers to ascertain pending wages, gathering facts on rights violations, managing and consolidating data etc. the students were also engaged in regular primary research, such from the field 116 as identifying policy announcements relevant to vulnerable groups affected by the lockdown through monitoring official portals. for most students, this was their first experience of conducting primary research. more importantly, it was the first time that the students were engaging with people from such vastly different backgrounds to theirs. furthermore, the nature of informal labour arrangements is that seemingly simple questions such as those related to theamount of pending wages do not always have straight-forward answers. the students therefore had to develop the ability to sift through information, and ask relevant questions to arrive at the information needed. moreover, the internship was designed to introduce students to action research methodologies. that is, the research conducted by the students fed directly into the organisation’s efforts to activate state institutions to respond to the plight of migrant workers. the students were thus exposed to ways in which research can come alive outside the classroom setting, and were supported in developing the core skills needed for this type of research. competency: interpersonal skills (understands how to communicate and work efficiently with others) the internship helped students develop interpersonal skills in two critical ways: from the field 117 coordination since this was an ambitious initiative involving multiple stakeholders (csj team members, government officials, labourers, students etc.), the students had to develop their own internal and external coordination mechanism. the experience of the students from hnlu typifies student learning in coordination. the student team appointed a leader to coordinate with the csj team, who in turn communicated regularly with the student team. all updates were added to a common google sheet to ensure that all parties were kept in the loop. the smooth system put in place by the students helped them keep track and facilitate the return of 12,000 migrant workers. two things are of particular note here: firstly, the coordination systems set up by the students were developed and led entirely by the students. the real-life disaster context, to some extent, pushed the students to develop problem identification and response skills. secondly, the system put in place by the students helped them develop core program management skills. the students were not only feeding information to csj, but also independently operating a small-scale project. by providing a context for grounded and situated learning, the internship program enabled the students to immerse themselves in real time disaster response and develop the necessary coordination skills. communication from the field 118 the project involved engaging with a range of stakeholders from very different cultural backgrounds to the students. the two main stakeholders that the students were engaging with were migrant labourers and government officials, each with their own set of communication challenges. as mentioned above, the migrant workers often spoke a different dialect to the students. compounding these communication barriers was the fact that most labourers were speaking from remote areas with limited network connectivity. the students thus had to develop the ability to communicate succinctly and clearly. moreover, the students were speaking to workers in high stress, and often traumatic, situations. they therefore had to learn how to communicate empathetically in the limited time available. on the other hand, the government officials that the students spoke to were often overworked, and sometimes insensitive to the plight of the labourers. navigating this required the students to be mature, yet firm in their communication. this engagement helped the students overcome their inhibitions in communication across cultural and societal barriers, and evaluate and re-align their communication style to a given need. moreover, they developed the ability to seek support, provide and ask for feedback, and find solutions though frequent communication. this ultimately forced from the field 119 them to step out of their comfort zones, and address common communication and interpersonal blocks that hamper efficiency in the workforce. competency: conscience and compassion most of the interns came from urban and financially secure backgrounds. the internship was thus an eye-opening experience for them. exposure to the realities of the urban and rural poor compelled them to confront their middle-class apathy. dealing with real life problems during a crisis forced students to view their legal education beyond deadlines and half-hearted projects. engaging with a real face who would be impacted by their failure to perform encouraged them to focus and deliver. dealing with hunger and poverty first hand also made them question their own privilege. additionally, the apathy caused by consuming mainstream media (which fails to depict ground realities) was broken as the students confronted a very different reality to what they previously knew. many “fence-sitter” students were able to re-evaluate their beliefs. at the same time, students came face to face with an overburdened and under-equipped state machinery. this allowed them to appreciate the many systemic barriers that deprive the vulnerable of resources. the result of this was the transformation of the intern from a student to a responsible citizen. as a result, many have selected more social justicefrom the field 120 oriented subjects in subsequent semesters, while some have continued their engagement with the organisation in formal and informal capacities. the richness of student learning through the lockdown internship program is testament to the potential of student-ngo partnerships. however, as will be discussed in the next section, institutional university involvement is essential if this potential is to be truly realised. lessons for internship-based / clinical legal education the lockdown experience has led to important insights for strengthening internshipbased legal education. need for faculty involvement through formal engagement informal student led internships are beneficial in that the limitations of university attendance and other bureaucratic requirements do not hinder the program. however, from the lockdown experience, it became clear that faculty involvement is paramount. of all three universities that csj engaged with, gnlu was the only university that entered a formal partnership with the organisation from the very beginning. despite this, faculty involvement was low. in the case of hnlu, csj approached the university’s legal aid society and entered into a semi-formal arrangement. ilnu students were all associated from the field 121 with csj informally. this partnership was later formalised. again, faculty involvement was low. as a result of this, the universities lost out on the opportunity to develop insights into field realities and integrate this understanding in their curriculums. this also meant that some students dropped out without completing their tasks due to university commitments such as assignments, exams and attendance requirements. a potential solution to this can be seen in the gnlu model, wherein students were marked by csj. this encouraged greater student accountability. mismatch between university commitments and community needs another concern is that university calendars do not always coincide with needs from the field. for example, programs aimed at registering migrant workers under labour laws would need to take place in the few months immediately preceding migration season. this may not coincide with holiday / internship season or it may clash with exams. during the lockdown, many interns left the program due to exams and assignments in the midst of the peak of the crisis. universities therefore need to make an effort to introduce flexibility so that students can be engaged when most needed. accounting for intern preferences it is not always possible to account for individual choices and preferences of interns, especially when working with a group for a specific outcome. other times, the pressures from the field 122 faced by ngos mean that interns have to be engaged in mundane tasks. to address this, universities need to be more actively involved in assigning students to projects that match their interests. artificial distinction between ngo internships and clinic education in many indian universities, the department in charge of clinical education is different to the department responsible for ngo internships. internships are often not viewed as contributors to clinical legal education in practice, thus creating an artificial and unhelpful distinction. furthermore, while most law colleges offer ngo internships for first year students, clinical courses are offered from third year onwards. it thus becomes difficult for students in later years to accommodate internships. this again takes away the potential of internships to contribute to professional growth of a student in a designed manner. universities therefore need to collapse this distinction, and begin to understand ngo internships as an integral part of clinical legal education. based on our experience, universities can partner with ngos in the following manners to increase the effectiveness of university-ngo learning partnerships: • institutionalising ngo internships as clinical legal education. this could be done by having a dedicated faculty and unit that is responsible for coordinating civil society – university – student partnerships (including clinical legal education and from the field 123 ngo internships). the faculty would in turn be responsible for balancing college priorities and project needs. the ngo internship model adopted by azim premji university (“apu”) is a pertinent example. apu students are assigned to a faculty member, who works closely with the student and the ngo. this creates opportunities for greater student learning and more meaningful knowledge sharing between ngos and universities. • long term partnerships between universities and specific ngos which are not dependent on a select group of students. this would require universities to enter institutional arrangements with civil society partners for interventions with a clear and specific scope. this would ensure that the project does not suffer due to students graduating or dropping out of the project. a successful model of this can be seen at tata institute of social sciences (“tiss”) mumbai where prayas, a project on prisoners’ rights provides ongoing learning opportunities to students while maintaining a dedicated team to address the needs of the prison population.3 • more active involvement and support from college administrations (for example, by allowing accommodation in attendance requirements, adjusting assessments and providing credit for ngo internships). 3 a detailed overview of prayas can be found at https://www.tiss.edu/view/11/projects/prayas/. from the field 124 • engaging civil society practitioners as teachers to integrate the learnings discussed above in the university curriculum. • more active pedagogical partnerships between civil society and universities so that learnings from field internships can be integrated with the students’ academic studies. this would mean universities and civil society co-designing internships that allow for input (information needed to successfully engage in the civil society project) – action (implementation through field internship) – reflection (consolidation and internalisation of learnings). conclusions as csj’s lockdown experience has shown, a well thought out internship program can catalyse immense student learning. however, the prevalent tick-box approach to internships is a considerable barrier to such learning. moreover, the failure of the academic fraternity to see ngos as partners in pedagogical innovations, as opposed to merely field associates for their students, has further undermined the learning potential of internships. there is thus a need to recognise the potential of student internships for holistic growth, and to involve ngos as equal knowledge partners. clinical legal education in australia: a historical perspective jeff giddings* introduction the evening edition of the melbourne herald for saturday, january 7, 1933 contains what is probably the first australian reference to the clinical teaching of law students.1 frank russell, a lawyer, noted that, unlike medical clinics which provided ‘the finest medical attention to the suffering poor’, legal clinics were not well known in australia. russell noted that legal clinics were a familiar phenomenon in the u.s.a. and also existed in some countries of europe and had been used in england. russell outlined the operations of the legal clinic at the university of southern california. students interviewed indigent clients and then in appropriate cases provided ongoing assistance. their work was supervised by experienced lawyers and the dean of the faculty of law would attend from time to time ‘to decide knotty cases, not of law, but of the propriety of the clinic acting for applicants’.2 russell’s description is of a real client clinic with a strong community service focus, a clinic committed to the delivery of legal services to the disadvantaged. australian clinical legal education programs (cle) have tended to make use of this model since the establishment of the clinical program at monash university in 1975. while the live-client model has been very influential, the history of australian cle is quite eclectic, with the stories and experiences varying significantly from state to state, law school to law school. the establishment of some programs was heavily student-driven while others saw a ‘top down’ approach taken, with academics developing programs which have then been enthusiastically accepted by students. the article focuses on real client clinical work with participating students being supervised by lawyer academics while also referring to other models. this model has enabled clinics to retain a strong commitment to community service whilst also facilitating close work with small groups of students. clinical legal education in australia: a historical perspective 7 * associate professor, law school, griffith university thanks to the anonymous reviewer and the editors for their insightful comments on an earlier version of this article. 1 f. russell, ‘how to educate young lawyers: legal clinics in the u.s.a.’ herald, saturday evening, january 7, 1933. 2 id this has been important to the growing acceptance and popularity of cle with students, law schools, universities and the legal profession. use of the real-client model also suggests an aversion to the value-free approach to legal education exemplified by the socratic appellate case method. the first part of the article addresses the development of australia’s earliest clinical programs, those at monash university, la trobe university and the university of new south wales. the second part provides an overview of increased australian interest in cle during the 1990s while the third part identifies some themes important in the history of australian cle. early days for australian clinical legal education while the first formal clinical legal education program in australia was established in 1975 at monash university, several legal referral services involving students had earlier been established. in june 1970, melbourne university law students opened a free legal referral service at the church of all nations in carlton. initially, 5 students participated in the service.3 in 1971, a telephone referral service run by monash university law student volunteers with support from law school academics commenced operation at the premises of the melbourne citizens advice bureau.4 legal academics involved in these services, in particular ronald sackville at melbourne and peter hanks at monash, were also heavily involved in the rapid development of australian legal aid policy around this time.5 in 1972, the law society at the australian national university established a legal referral service. the service ceased operations the following year, ‘as a result of the establishment of “official” legal aid offices which led to the loss of a sense of purpose among students and through a lack of leadership of the participants. another difficulty which faced the service was a degree of reserve concerning its function among the canberra legal profession.’6 monash students played a key role in the establishment of the monash clinical program in 1975. simon smith traces the origins of the program to the establishment in 1971 of the monash student legal referral service, noted above. ‘working on roster, third, fourth and final year students would take telephone calls seeking legal assistance. as soon as the problem was identified a member of the monash academic staff would be telephoned for the legal advice and referral which was then telephoned back to the original caller.’7 the referral service was not part of the monash curriculum and was not faculty-approved.8 students were not formally prepared for their role nor was there any regulation of the academic advisors.9 8 journal of clinical legal education june 2003 3 j. chesterman, poverty law and social change: the story of the fitzroy legal service, 1996, melbourne university press, 4 & 26. 4 s. smith, ‘clinical legal education: the case of springvale legal service’ in neal, d., (ed) on tap, not on top: legal centres in australia 1972–1982, 49 5 in his role as commissioner for law and poverty to the commission of inquiry into poverty 1972, sackville wrote several influential reports, legal aid in australia (1972), legal needs of the poor (1975) and law and poverty in australia (1976). hanks published several reports for commonwealth agencies, including relationship between legal aid agencies and social agencies (1983) and social indicators and the delivery of legal services (1987). 6 j. goldring & r. hamilton, a course of “clinical legal education” as part of the law degree course at a.n.u. discussion paper, 14/4/78, 2. 7 s. smith, above, note 4, 49 8 g. nash, ‘clinical education in australia’ council on legal education for professional responsibility, vol. xii, no. 1, (1979) 6 9 smith, above, note 4, 49 early in 1972, the referral service began running afternoon sessions at the springvale community aid and advice bureau. this involved students in face-to-face interviews with clients with support from bureau staff. smith notes that student frustration with the limited nature of referral work and the example provided by the establishment in december 1972 of the fitzroy legal service, contributed to springvale legal service being established in february 1973.10 law students were the main contributors to what was, quite understandably, a very busy and fairly disorganised service. two of the students most heavily involved in the development of springvale legal service, neil rees and simon smith, went on to play critical roles in the development of australian cle. smith spent more than 10 years as coordinator of springvale legal service. rees was the academic responsible for developing and implementing the unsw clinical program in the early 1980s and later became foundation dean of the university of newcastle law school. monash academics, including peter hanks and professor gerry nash, became involved in springvale legal service and this prompted law school interest in the prospect of a clinical program. during 1973 and 1974, this prospect was discussed in forums including the faculty board. a committee on clinical legal education, chaired by hanks, met after faculty board gave in principle approval to the establishment of a clinical program.11 nash developed a subject proposal which was approved by the faculty board early in 1974.12 nash did so after lengthy consultation with professor arthur berney who was visiting monash from boston college law school. the elective subject ‘professional practice’ was offered on a pilot basis in second semester, 1975. the subject was based at springvale legal service with 15 students being supervised by professor nash with assistance provided by three practitioners as part-time ‘tutors’. the three practitioners were all active volunteers at the service and they each attended one evening per week to provide direct supervision of student work. nash’s supervisory role was of a more general nature. nash had agreed to run the subject in an effort to overcome objections related to the cost of the program. this supervision represented half of nash’s teaching commitment for the semester.13 the first offering was obviously quite chaotic. according to nash, he and harry reicher ‘were just flat-out.’ professional practice was then run over the summer of 1975/76. ‘we had to run it over summer. we couldn’t tell the clients to come back in 3 months time.’ the summer subject offering was a first both for monash university and for australian law schools.14 two further monash clinic sites were subsequently developed; the doveton legal service, which opened in mid-1977 and monash-oakleigh legal service, which opened in 1978. the possibility of establishing a clinic at the proposed springvale office of the australian legal aid office, discussed in 1975, had to be shelved when that office did not open.15 clinical legal education in australia: a historical perspective 9 10 id 11 p. hanks, ‘clinical legal education’, paper to members of the committee on clinical legal education, 3 may, 1974. 12 nash, above, note 8, 6 13 ibid, 8 14 gerry nash, personal interview, 1/12/97 15 it had been anticipated that a large number of branch offices of the alao would be opened during 1975 but this did not eventuate due to resistance from the legal profession and the change of commonwealth government in december, 1975. for an account of this curtailment of the alao, see tomsen, s., ‘professionalism and state engagement: lawyers and legal aid policy in australia in the 1970’s and 1980’s’ (1992) 28 australian and new zealand journal of sociology 307 each of the clinics relied heavily on part-time tutors. one of the supervisors at doveton was a local solicitor, michael duffy, who subsequently was federal attorney-general in the hawke labor government.16 nash hoped that over time more academics would become involved in the clinic and would be better teachers because of this involvement. however, this did not happen to the extent nash hoped, with the clinics remaining relatively self-contained.17 the 3 monash clinic sites differed in a number of significant aspects. nash stated that it was ‘interesting that the official philosophy (so far as the university is concerned and so far as i am concerned) behind the university operation of these three legal services is identical but the nature of the operation tends to differ.’18 while the ‘great majority’ of springvale legal service clients were of non-english speaking origin, the corresponding figure for doveton was 25%.19 while arrangements were made at doveton to limit to 20 the number of clients seen during any one session, the ‘springvale operation has always been premised on the assumption that all-comers should be served.’20 nash also notes that the emphasis at springvale was on ‘informality and assistance to the client. because of the ethos of the establishment, the way in which it originally began, and the personality of those who work there, the educational element is perhaps subservient to the legal aid element.’21 the person who was central to the development of the particular springvale legal service focus was simon smith. smith was employed as an administrative assistant by nash, by then the law school dean, in january 1978 although smith’s work was focussed on the coordination of the springvale legal service legal practice and supervising students. the fact that smith was employed as an administrative assistant rather than as an academic highlights that, although clinical legal education was further advanced at monash than at any other australian university, its legitimacy had not yet been accepted. smith’s position was not converted to a lectureship until 1982, 7 years after establishment of the clinical program. the importance of simon smith’s coordination role was increased because of the program’s heavy reliance on part-time teachers. 11 part-time tutors were involved in student supervision at the monash clinic sites during the three semesters completed in the 1979–80 financial year.22 smith later referred to a stage where 8 different people were involved in supervision and teaching at springvale legal service alone and the difficulties this caused for students in terms of access to tutors for follow-up supervision. smith described this situation as unworkable.23 further difficulties arose due to different styles of supervision. guy powles, then coordinator of the monash clinical program, expressed concern that the clinical program not be built up through the employment of part time staff on an ad hoc basis: ‘above all else, the course requires continuity of supervision. what is needed is the part-time commitment of a full-time lecturer with good all round practical experience.’24 10 journal of clinical legal education june 2003 16 nash, interview, 1/12/97 17 nash, interview, 1/12/97 18 nash, above, note 8, 15 19 ibid, 13 20 ibid, 14. it was not until november 1987 that a limit of 15 client interviews per session was introduced. see k. greenwood, it seemed like a good idea at the time, 1994, springvale legal service, 127. 21 ibid, 12 22 attachment to memorandum from guy powles to professor nash re: professional practice tutors dated 4 october 1979. 23 smith, above, note 4, 51 24 id. at monash, there was also a ‘godfather scheme’ whereby students were given the opportunity to shadow experienced practitioners. in 1980, there were 69 students placed, including the present victorian deputy premier, john thwaites and abc radio presenter jon faine. the program appears to have suffered from the inconsistencies in student learning which bedevil these external part-time programs. the monash clinical program has benefited greatly from continuity of staff in several key positions. sue campbell has coordinated the monash program since the mid-1980s and both simon smith and adrian evans spent in excess of 10 years as coordinator of springvale legal service. ross hyams, currently director of what is now known as the springvale-monash legal service, has also worked in the clinical program for more than 10 years, principally as coordinator of monash-oakleigh legal service. during the 1990s, monash developed specialist clinics as well as a model for involving clinic students in community development work, significant initiatives in the development of australian cle. la trobe the la trobe university clinical program can be traced to the 1974 establishment of the la trobe legal service by staff from the legal studies department.25 there was strong student demand both for the provision of legal services to the student population and for involvement in the delivery of those services. in 1976, the la trobe legal service employed a lawyer with students’ representative council funds and by 1977 ‘it was clear that the time was ripe to begin training “para-legal” personnel for work in the service.’26 this was done through a clinical course established by adrian evans, then a solicitor at the la trobe src legal service, called clinical legal education. twelve students were placed with the src legal service as well as participating in seminars on interviewing skills and various substantive legal areas. the legal studies department made a payment to the legal service for having the students on placement.27 in 1978, the legal studies department also employed a lecturer in legal aid with responsibility for establishing the west heidelberg community legal service (whcls) at the local west heidelberg community centre28 which became the second placement site for the la trobe legal studies students. phil molan was the first person appointed to that position, which he held until 1981.29 a course titled law and social justice developed out of the student work at whcls and students from the course continued to be placed at whcls until 1987.30 the decision to provide a clinical program for legal studies students was based on the view that the agents for change of the legal system would come from outside the legal profession and that paralegals had a key role to play in improving the workings of the legal system.31 a focus of the program was the training of students to work as para-legal volunteers at the la trobe legal service with such work continuing after the students’ completion of the clinical program. clinical legal education in australia: a historical perspective 11 25 a. evans, ‘para-legal training at la trobe university’ (1978) 3 (2) legal service bulletin 65. 26 id. 27 m. a. noone, ‘draft history of clinical legal education in legal studies department’ (undated). 28 d. neal, ‘the new lawyer bloke’ (1978) 3 (4) legal service bulletin 148. 29 phil molan discussed his work in community legal centres, including the development of the west heidelberg community legal service in an interview with david neal, ‘interviews: some founding mothers and fathers’ in neal, d., (ed) on tap, not on top: legal centres in australia 1972–1982, 60–64. 30 noone, above, note 27. 31 a. evans, interview, 17 october 1997. in 1986, adrian evans and mary anne noone (who in 1985 had replaced kevin bell in the lecturer position originally held by phil molan) reviewed the clinical legal education course with a view to involving both the la trobe src legal service and whcls in a 2-semester course. the offering of placements at 2 legal services was considered to enhance the learning experience of students. the revised clinical legal education course was first offered in 1987 with a quota of 24 students. the course ‘sought to link clinical skills, substantive law, research, exposure to case work environments and techniques of public interest legal analysis.’32 the la trobe src legal service maintained an involvement in the clinical program until 1992 and whcls remains a major placement site. the distinctive nature of the la trobe program, as one offered to non-law students, changed in 1991 when the legal studies department became the school of law and legal studies.33 during the 1990s, the la trobe clinical program pioneered the development of links with a legal aid commission rather than a community legal centre. from 1994, la trobe offered an optional one-semester subject, legal practice and conduct, which included clinical placements at the preston office of the then legal aid commission of victoria (now victoria legal aid).34 in 1996, la trobe commenced a mentoring program which saw a small number of second year students individually placed with magistrates during one semester. there is clearly a strong commitment at la trobe to continued development of its clinical program. several discussions of australian clinical programs have ignored la trobe. the discussion of clinical legal education in the pearce committee report focussed on monash and unsw. the 1990 report of the queensland working party on clinical legal education discussion paper reviewed the clinics at monash and unsw and 3 canadian clinics but makes no reference to la trobe.35 perhaps this can be explained by a view amongst law schools that a clinical program in a legal studies department did not provide useful insights for the establishment of a clinic within a law school. in fact, the la trobe program offers many useful insights into the potential for clinical experiences to show students how the law and legal system may be used to promote social change. 12 journal of clinical legal education june 2003 32 noone, above, note 27. 33 m. a. noone ‘australian community legal centres – the university connection’ in cooper, j & trubek, l. (eds) 1997, educating for justice: social values & legal education, dartmouth, 12. 34 j. dickson & m. a. noone, ‘the challenge of teaching professional ethics’, paper presented at the australasian professional legal education council international conference, skills development for tomorrow’s lawyers: needs and strategies, sydney, september 1996, published in conference papers volume 2, 847, 850. 35 d. pearce, australian law schools: a discipline assessment for the commonwealth tertiary education commission, 1987, agps. see volume 1, 115, 122–129 (perhaps this is explained by the pearce committee focus on law schools rather than legal studies departments such as that at la trobe), queensland association of independent legal services, clinical legal education committee, report of the clinical legal education committee, november 1990, appendix b, 5–6. for a more recent example of the lack of attention paid to the la trobe clinical program, see i. styles & a. zariski, ‘law clinics and the promotion of public interest lawyering’ (2001) 19 law in context 65, 66 where reference is made to the positive experiences of the monash and unsw clinics but no reference is made to la trobe. university of new south wales the university of new south wales (unsw) established its in-house clinical legal education program in 1981 with the opening of kingsford legal centre. neil rees, the founding director of kingsford legal centre, attributes the development of the unsw clinical program to the desire of the recently established unsw to challenge the pre-eminence of sydney university. in the late1970s, sydney university law school was considered by unsw to be fairly weak ‘so they saw law as an area where they could overtake sydney fairly quickly.’36 both simulation programs and an externship program, established in mid-1975, preceded the establishment of the in-house clinical program. neil rees recalls an incident in 1980 when, having been at the unsw law school for only a week, ‘a student came in and told me “i have relatives in a legal firm in new york so i’m going to do my clinical legal experience placement in new york. will you approve this?”’. the unsw trial practice subject was ‘your classical simulation-style subject, running through a whole range of litigation with students playing all the major roles.’37 the unsw clinical program is distinctive in a number of respects. kingsford legal centre developed a very strong test case focus, conducting a series of major anti-discrimination cases. unsw also used kingsford legal centre to forge novel links between the teaching of law and other disciplines, in this case social work. kingsford legal centre also introduced student supervision practices different to those employed by the monash program. (these differences are discussed later in this article) initially, it had been proposed to operate the unsw clinical program from redfern legal centre. redfern legal centre was established in 197738 and several of the key people in the operation of the centre were academics from the unsw law school. in neil rees’ view, ‘the people who ran redfern were the people from the unsw law school. they were the same people just with different hats on. the movers and shakers at redfern were john basten, terry budden, john kirkwood, robyn lansdowne.’39 a meeting was convened by rees early in 1980 with key redfern people (those referred to above plus key staff – roger west and clare petre). ‘the redfern people pretty quickly decided that it would somehow taint the intellectual purity of the redfern legal centre and they were reasonably well funded, didn’t want any resources unsw could offer them and, i think, feared a university takeover of redfern at the time... these were fairly junior members of staff and they feared the professoriate taking over their baby.’ while redfern legal centre did not become part of the clinical program, harmonious relationships were maintained between the law school and the centre. the planning for the clinical program clearly benefited from neil rees’ experience at monash with the development of springvale legal service. the importance of having the clinic coordinator/director as a full-time member of academic staff was recognised. student supervision and the teaching of the classroom component of the subject comprised this staff member’s teaching load.40 rees also noted, ‘we should learn from the monash experience and discourage the use of academic teaching staff who are admitted to practise, but who may lack substantial experience in the necessary areas of law.’41 clinical legal education in australia: a historical perspective 13 36 neil rees, personal interview, 4 september 1997 37 id 38 see d. neal (ed) on tap, not on top: legal centres in australia 1972–1982, 1984, legal service bulletin co-operative. 39 neil rees, personal interview, 4 september 1997 40 neil rees, clinical legal education (18 march 1981), 15 41 id as late as the end of march 1981, neil rees was writing that it would take a considerable period of time to establish the clinic. ‘it may be possible, if finance were available, to open the clinic sometime in the second half of 1981. it might be more realistic to aim for a date early in 1982.’42 however, the kingsford legal centre was established on 27 july 1981. it was officially opened by mr frank walker, the then attorney-general of new south wales on 9 september 1981.’43 the unsw law school encountered significant resistance from the law society of new south wales to the establishment of the clinic. neil rees attributes this in part to the links between the law school and redfern legal centre. ‘redfern had had lots of run-ins with the law society from day one. the people at redfern were behind the establishment of the australian legal workers group which was setting itself up as the alternative law society for radical young lawyers. alwg was a very volatile organisation... the law society saw redfern, alwg, kingsford, ron sackville and john basten and others as this sort of amorphous group of feared lefties. the aboriginal legal service as well. the tentacles were all there. they were pretty horrified as to what was going to happen... so, i found myself at 30 years of age sitting down negotiating with the president and secretary of the law society about the opening of kingsford and what type of practising certificate they were prepared to give me.’44 kingsford legal centre quickly developed a substantial litigation practice, especially in the areas of anti-discrimination and domestic violence. up to 75 anti-discrimination cases were conducted each year and on 6 occasions, these cases were taken to the high court of australia.45 domestic violence issues were the key focus for robyn lansdowne, the casework lawyer at kingsford legal centre from 1982 to 1986. while kingsford’s litigation profile was of considerable benefit to the law school, the relationship between the clinic teachers and other academics suffered when the clinicians sought to have time away from the clinic, either for sabbaticals or to teach other subjects in the law school. the catalyst for the departure from kingsford legal centre of neil rees and robyn lansdowne in 1986 was ‘a big blow-up between clinicians and this new school of legal scholars who were great supporters of clinical in theory so long as two things happened. one, it didn’t suck away what they thought was a disproportionate share of the funds and two, that they weren’t asked to go and work there.’46 in 1987, the schools of law and social work were more successful in developing links. the law foundation of new south wales funded the school of social work at unsw to report on the feasibility of a legal studies course in the social work degree. as a result of that report, the school obtained a development grant from the university to commence, in 1989, a social work placement at kingsford legal centre. the grant was necessary to cover the cost of a social work supervisor at the centre, and to defray the administrative costs to the centre of the social work placement.47 in 1991, kingsford legal centre director, simon rice reported that the ‘presence of an academic/practitioner from the social work school, as well as three students on placement, has been of great benefit to the social work studies. more importantly, from the clinical legal education view, it has added a new dimension to the legal casework possibilities and has invited students to 14 journal of clinical legal education june 2003 42 ibid, 7 43 n. rees & r. lansdowne, report to the school on clinical legal education, 6 october 1983, 3 44 rees, personal interview, 4 september 1997 45 j. giddings, ‘casework, bloody casework’ (1992) 17 (6) alternative law journal 261, 263 46 rees, personal interview, 4 september 1997 47 s. rice, review of the clinical legal education program in the law faculty at the university of new south wales (june 1991) 15 take a close look at the way lawyers may be introduced to working with related professions.’ ‘it has been a considerable challenge to the supervisors and to the students to explore the possibilities of the two professions working co-operatively. the project requires further time and resources, but shows considerable promise if it can be maintained.’48 supervision of first interviews – a key teaching difference in a 1984 paper, robyn lansdowne & neil rees, the clinic teachers at kingsford, noted that they faced the ‘difficult task of leading students to believe that they must accept responsibility for the conduct of a particular case whilst at the same time ensuring that our clients are not disadvantaged in any way by student involvement. in part, we have to create an illusion of responsibility.’49 in a 1983 paper, they had referred to their approach to supervision being ‘akin to placing students on a rope. the rope is gradually let out if a student is performing well. if a student fails to perform adequately we are forced to draw in the rope and explore every minor detail of a case with the student.’50 one mechanism used to support this illusion of responsibility remains a key difference between clinical programs in new south wales and programs in victoria, western australia & queensland. while all australian real-client clinical programs provide students with the opportunity to take instructions from clients without their supervisor being present, different approaches are taken to the provision of advice to the client once the student has discussed the situation with their supervisor. when a client is being interviewed for the first time at either the unsw or newcastle clinic, the student will not advise the client alone. they do so with their supervisor. clinical programs outside new south wales have adopted the approach pioneered at monash whereby the student returns to the client and advises them unaccompanied by a supervisor. students involved in the la trobe clinical program did not conduct client interviews until the second half of the 1990s, by which time the la trobe legal studies department had become a law school. the monash approach was based on the importance of the student taking responsibility for the client and to be seen by the client as doing so. students would first observe interviews conducted by their supervisor early in their placement before being given the opportunity to conduct interviews and provide advice without their supervisor present. simon rice viewed the kingsford approach as appropriate both from a client service perspective and educationally. while not wanting ‘to take away the unique student-client dynamic’ he saw ‘a very useful role for a solicitor to lead by example and teach’ as well as to safeguard the quality of advice provided ‘when there’s that degree of seriousness.’51 clinical legal education in australia: a historical perspective 15 48 s. rice, ‘some observations on the operation of a clinical program in new south wales’, undated, 12 49 r. lansdowne & n. rees, kingsford legal centre: a clinical experience, paper to the 1984 conference of the australian law teachers association, 10. 50 n. rees & r. lansdowne, above, note 43, 35. 51 simon rice, personal interview, 14 february 1997 programs that did not eventuate several other australian law schools considered the establishment of clinical programs in the late 1970s and 1980s. in 1975, moves to establish a clinical program at the australian national university (anu) came to nothing after the federal budget, delivered by labor treasurer bill hayden, failed to deliver additional funding for universities. the then dean of law at anu, lesley zines was very supportive of moves to establish the clinic.52 the call for a clinical program at the anu was renewed in 1978. jack goldring and roger hamilton produced a discussion paper which suggested that without a clinical program, students ‘are denied a perspective of the law which, in our view, is essential to a critical awareness of the workings of the legal system.’53 again, despite support, the clinic proposal was not adopted due to resource issues. there were also proposals in the late-1970s to establish a clinical program at macquarie university, in conjunction with the macquarie legal centre. ben boer and jack goldring proposed the development of a clinic like that operating at springvale legal service and goldring considers they were close to receiving support from the macquarie vice-chancellor until funding issues once again intervened.54 in 1983, diana hardy, a phd student at the university of western australia (uwa) visited the monash and unsw clinics and then reported to the uwa law school regarding the prospect of establishing a clinical program.55 there was already a well-established legal service operating at uwa, the parkways legal service. while students at the parkways legal service observed client interviews conducted by lawyers, they were not given responsibility for those clients and their cases. gosnells community centre subsequently approached uwa with a proposal to establish a clinic but it did not eventuate.56 the 1990s – renewed interest in clinical legal education the number of law schools in australia expanded dramatically following a range of reforms to the university sector in 1987.57 interest in clinical legal education was reactivated with a number of the newly established ‘third wave’ law schools considering the establishment of clinical programs. not all of these new programs have made use of the live-client model with simulation-based and placement activities also being characterised as clinical. clinic appears to have been viewed by some of these new schools as a means of differentiating themselves from other new law programs in an increasingly competitive environment.58 16 journal of clinical legal education june 2003 52 jack goldring, personal interview, 9 september 1997 53 j. goldring & r. hamilton, above, note 6, 1 54 jack goldring, personal interview, 9 september 1997 55 d. hardy, report on clinical legal education, undated. 56 michael hovane, personal interview, 14 may 1999 57 mcinnis and marginson note that from 1987 to 1992, law student numbers rose by 58.7%, making law the third fastest growing discipline during that period. c. mcinnis & s. marginson, australian law schools after the 1987 pearce report, (1994) agps, canberra, 13. 58 see r. handley & d. considine, ‘introducing a clientcentred focus into the law school curriculum’ (1996) 7 legal education review 193 at 208 for a discussion of the increasingly competitive law school environment in australia. the newcastle professional program the clinic-oriented law degree at the university of newcastle is the largest and most ambitious of these new programs. the newcastle program enables students to satisfy their post-degree practical legal training requirements through their undergraduate program by way of involvement in a range of clinical activities.59 the university established the newcastle legal centre (since renamed the university of newcastle legal centre) which has been the key clinic site. the legal centre has been involved in an impressive range of major litigation, particularly in relation to police accountability.60 a substantial amount of limited-term ‘soft money’ was used to develop the newcastle legal centre as the program’s centrepiece. the external funds used to fund the development of the clinical program were provided by the solicitors trust account fund.61 from 1995, newcastle law school received a clinical loading of approximately $250,000 per year from central university funds. this payment recognised that the relative funding model used by the commonwealth department of education, training and youth affairs renders it almost impossible for law schools to maintain substantial clinical programs.62 other australian law schools also developed a substantial commitment to clinical teaching in law during the 1990s. after the failure of efforts to develop clinic arrangements which would include all the law schools in south-east queensland, griffith university established a clinic relationship with caxton legal centre and now operates 6 clinical programs.63 james cook university also operates a clinical program with townsville community legal service. queensland university of technology places students with legal aid queensland who are supervised by legal aid queensland staff. murdoch – attracting direct commonwealth support the establishment in 1997 of the southern communities advocacy law education service (scales) by murdoch university is significant in the development of australian clinical legal education in several respects. scales was the first clinical program to receive direct commonwealth government funding and continues to receive such funding as one of the 4 programs supported by the establishment of a cle funding program as part of the 1998 federal clinical legal education in australia: a historical perspective 17 59 j. boersig, ‘clinical legal education: the newcastle model’, paper presented at the australasian professional legal education council international conference, skills development for tomorrow’s lawyers: needs and strategies, sydney, new south wales, september 1996. published in conference papers, vol. 1, 463. 60 for example, the legal centre has been acting for the family of leigh leigh, a newcastle teenager who was murdered in 1989 and the family of roni levi who was shot dead by police on bondi beach in july, 1997. see r. watterson, r. cavanagh & j. boersig, ‘law school based public interest advocacy’ (2002) 2 international journal of clinical legal education 7. 61 this fund comprises interest payments on funds held in solicitors’ trust accounts which are not centrally deposited. the fund was established in the 1980’s following agreement between the major banks and the law society of nsw. 62 the implications of the detya relative funding model for clinics are discussed in j. giddings, ‘a circle game: issues in australian clinical legal education’ (1999) 10 (1) legal education review 33, 44–46. 63 griffith operates a generalist and a specialist family law clinic in partnership with caxton legal centre, a specialist alternative dispute resolution clinic in partnership with the alternative dispute resolution branch of the queensland department of justice and attorney-general, an externship program, a public interest lawyering program with the queensland public interest law clearing house and an innocence project. budget. murdoch remains the only australian law school which attracted substantial financial support from outside the university for the establishment of a clinical program. the success of murdoch in obtaining direct funding from the commonwealth government for the establishment of their clinic has clearly had a significant effect on the development of clinical legal education in australia. to some extent, the scales story is one of ‘being in the right place at the right time’ but it is more an example of developing a persuasive case for support. murdoch law school, with support from the central university, worked methodically to gather information about cle practice and then worked with interested parties to address a wide range of issues. ultimately, murdoch has been able to develop a range of funders for scales. murdoch university’s agenda in promoting the scales concept went beyond the law school. the university was directly focussed on the development of its new campus at rockingham in the rapidly developing region south of perth and to institutionalising its provision of community service to that region. scales is the first australian cle program involving a formal mentoring process with another existing clinical program, in this case involving clinicians from monash. most other australian clinics were established with the direct involvement of people who had experience working in similar programs elsewhere. murdoch relied on chris shanahan, a jurisprudence lecturer with experience working in community legal centres in new south wales, to develop a clinic proposal and pursue funding avenues. shanahan’s community legal centre background was arguably very important to the success of murdoch in developing a viable model for the proposed clinic and to ensuring the strong community service focus the clinic would adopt. the close connections between the australian clinical legal education and community legal centre movements are well illustrated by the murdoch example. clinic as a marker of difference clinics continue to be used to differentiate some law schools from others. the increase in the number of australian law schools during the 1990s appears to have intensified both the need for new law schools to ‘find a niche’ and the attractiveness of clinics as a possible marker of difference. just as kingsford legal centre was part of the unsw law school challenge to sydney law school in the early 1980s, scales differentiated murdoch law school from other law schools west of the nullarbor in the mid-1990s. archie zariski notes that murdoch was a new law school at the time of developing the cle proposal and that ‘everyone at murdoch was looking for ways to distinguish murdoch, to take an innovative approach to legal education, to do things a little bit differently to the traditional. . . we were all looking for ways to make murdoch stand out as a new law school and i thought that a clinical approach might well be one of them.’64 griffith law school operates a much more substantial clinical program than the other south east queensland law schools, bond university, queensland university of technology and university of queensland. griffith law school offers 6 different clinical courses which feature heavily in promotional literature from both the law school and the university. in particular, the prospect of students having opportunities to take responsibility for legal issues faced by real people has been emphasised. 18 journal of clinical legal education june 2003 64 archie zariski, personal interview, 14 may 1999 growing commonwealth support for clinics following the pilot phase of the scales project, the commonwealth government made a more substantial commitment to promoting clinical legal education. in february 1999, the commonwealth attorney-general, daryl williams selected 4 clinical legal education projects to be funded under its clinical legal education funding program. funds have been provided to griffith university, monash university, murdoch university and the university of new south wales (unsw). both griffith and monash established specialist family law clinical programs, unsw established an employment law service and murdoch used their funding to maintain existing operations. as might be expected, all 4 programs supported by the commonwealth strongly emphasise the importance of community service objectives. the commonwealth’s interest in clinical legal education has been prompted both by a concern to deliver cheaper legal services to the community as well as an interest in improving legal education. the question is the extent to which both community service and educational objectives can be achieved in the same program.65 to date, the commonwealth have been supportive of the approaches taken by each of the funded programs with funding continuing beyond the initial 3-year allocation. student appearance work the rise in the number of unrepresented litigants appearing before courts may provide the catalyst for australian clinical programs to follow the united states of america in providing greater opportunities for students to engage in real advocacy work. advocacy training in australian law schools has to date been dominated by simulation exercises.66 australian law schools including newcastle, monash and griffith incorporate student appearance work into their clinical programs.67 these programs rely on the discretion of individual magistrates and judges to grant leave to students to appear in their court and this reliance created difficulties for the monash program in 1997.68 student appearance rights has been an issue of longstanding interest for clinicians with a wide range of proposals, involving courts (including the family court and magistrates court), tribunals and bodies like the tribunal for the new south wales australian football league. in october 1987, the league wrote to unsw law dean garth nettheim ‘to ascertain if we might interest some students who could be looking to gain practical advocacy experience in a court room type situation in assuming an advocate’s role’.69 clinical legal education in australia: a historical perspective 19 65 j. giddings, ‘the commonwealth discovers clinical legal education’ (1998) 23 (3) alternative law journal 140 66 a. lynch, ‘why do we moot?: exploring the role of mooting in legal education’ (1996) 7 legal education review 67, m. keyes & m. whincop, ‘the moot reconceived: some theory and evidence on legal skills’ (1997) 8 (1) legal education review 1. 67 for an outline of the monash program, see s. campbell ‘my learning friend’ (1993) 67 (10) law institute journal 915 68 changes to the legal profession practice act have raised concerns regarding the standing of students to appear in court as advocates. see j. faine, ‘student counsel scheme under threat’ (1997) 71 (1) law institute journal 17. noone suggested in 1991 that legislative amendment as the best way to create the certainty needed to promote student appearances. noone, m.a., ‘student practice rule – is it time?’ (1992) 66 (3) law institute journal, 190. 69 letter to garth nettheim from ian garland, chief executive, nsw australian football league, 30 october 1987. as part of the 1990 review of the operations of kingsford legal centre, a survey was conducted of students who had completed the clinical legal experience subject between 1986 and 1990.70 seventy percent of respondents identified their reason for choosing to do the clinic subject as being ‘to develop practical legal skills and experience’ while 23% referred to ‘wanting to work in a community legal centre’.71 the most common suggested improvement to the subject was the incorporation of more court experience and advocacy work.72 in 1998, judith dickson published a comprehensive article arguing in support of clinical legal education students being given a statutory right of audience before australian courts.73 dickson outlined the close student supervision processes used by australian clinics. she then argued that australian clinical programs ‘emphasise the assumption of responsibility by the students for the satisfactory conduct of clients’ files.’74 this assumption of responsibility involves students learning and practising the application of legal rules and processes as well as ethical practices. this need to adhere to the standards of competency and ethical conduct of lawyers is argued to distinguish clinical legal education students from other non-legally qualified persons. specialist clinical programs there has also been a move towards establishing clinical programs in specialist areas of law. various law school have established specialist clinical programs, both in-house and in conjunction with a wide range of external organizations, from private legal firms to public interest law offices.75 monash operates 2 specialist cle programs; one in family law and another in which a small group of experienced students provide legal advice to victims of sexual assault.76 griffith operates 2 specialist cle programs, an alternative dispute resolution clinic with students being placed with the adr branch of the queensland department of justice77 and a family law clinic focussing on people in regional queensland and on unrepresented litigants. both the griffith and monash family law clinics have been funded by the commonwealth attorneygeneral’s department. unsw operates a specialist employment law service, also with financial support from the commonwealth. it is likely that further specialist clinical programs will be developed, in schools seeking to make broader use of a strength in a particular substantive legal area or to meet community service obligations to groups with particular legal service needs. there is clearly scope for advanced elective courses to incorporate a clinical component. areas likely to see specialist clinics develop include refugee law, intellectual property and mediation. 20 journal of clinical legal education june 2003 70 msj keys young, clinical legal experience: survey of former students, january 1991 71 ibid, 5 72 ibid, 15 73 j. dickson, ‘students in court: competent and ethical advocates’ (1998) 16(2) journal of professional legal education 155. 74 ibid, 168. 75 see kingsford legal centre, clinical legal education guide 2001/2002, 76 a. evans, ‘specialised clinical legal education begins in australia’ (1996) 21 alternative law journal 79. 77 j. giddings, ‘using clinical methods to teach alternative dispute resolution: developments at griffith university’ (1999) 10 (3) australasian dispute resolution journal 206 links with practical legal training there has recently been substantial ‘movement at the station’ in relation to the provision of practical legal training (plt) programs by australian law schools.78 the expansion in new south wales of the number of plt providers has been followed by similar moves in both victoria and queensland. in states where articles of clerkship are still available as the alternative post-degree route to admission, there have been moves from major national law firms to have their ‘graduate clerks’ complete a plt program rather than articles.79 the dividing line between undergraduate cle and plt courses is becoming increasingly difficult to define. this lack of clarity arises from changing perceptions of the place of legal skills teaching in undergraduate law programs. rice states that ‘in those jurisdictions such as australia where articles or post-degree, pre-admission practical education courses are compulsory, the need for undergraduate skills training is less pressing. consequently the teaching of legal skills [at undergraduate level] need be necessary only to a degree that enables students to work effectively in the clinical program while pursuing other aims.’80 this view of the limited role of skills training in cle programs is likely to be undermined due to extra pressure being placed on the plt system with the increase in law graduates seeking entry to the profession. as sue campbell anticipated in 1995, plt providers are now granting some students credit for skills learning contained in their llb studies, including involvement in a cle program.81 clinic teachers involved in the development of plt programs need to encourage a broad perspective to be taken of pre-admission training for lawyers, moving away from a transactional focus. newcastle legal centre founder, john boersig has noted that planners must keep in mind the need to ensure courses do more than simply teach students how to fill in forms. such programs need to emphasise the teaching of generic skills ‘essential to a broad range of legal activities’.82 greater expectations law schools are now expecting more and more from their clinical programs and clinicians. clinics are promoted to students as the best environment in which to develop ‘hands on’ legal skills while being showcased to the general community as examples of university commitment to community service and access to justice. interestingly, we have seen name changes for several australian clinics, changes clearly designed to more closely connect these clinics with their law school and university. springvale legal service has become the springvale monash legal service and the newcastle legal centre has become the university of newcastle legal centre. clinical programs, combining small class sizes with community service, have been used by universities to showcase excellence in teaching. clinicians have been well represented in university teaching awards. in the first 5 years of the australian awards for university teaching (1997–2001), clinical teachers from griffith (1999), monash (1998) and unsw (2001) have been finalists for the australian award for university teaching in law and legal studies with the griffith and unsw clinical legal education in australia: a historical perspective 21 78 a. lamb, ‘preparation for practice: recent developments in practical legal training in australia’ paper presented at the commonwealth legal education association conference 2000, adelaide, april 2000. 79 c. banham, ‘big firms take student training inhouse’ friday, may 5, 2000 justinian. 80 rice, above note 40,25 81 s. campbell, clinical legal education newsletter, no.8, november 1995, 2 82 j. boersig, above, note , 466 83 j. giddings, above, note 62, 38. teachers having the good fortune to receive the award. the work of scales was a key feature of murdoch university’s successful nomination for the 1998 australian award for university teaching for services to students and the rockingham region. themes in australian clinical legal education there are some underlying similarities that should be considered in attempting to identify the character of australian cle. they relate to: • emphasising community service, including focussing on real cases rather than simulations; • enhancing student learning – ‘legal education in context’; • practical legal scholarship; • client-centred lawyering. emphasising community service in my view, australian clinical programs have been shaped to a significant extent by the backgrounds of the people working in those clinics. australian clinical programs tend to have been and continue to be staffed by people with a strong community legal centre / legal aid background. this tends to bring with it a strong commitment to community service and to using the law and legal system to achieve community development objectives.83 australian clinical programs are now increasingly focussed on taking their work beyond the traditional service delivery model of advice and representation for individual clients. this is being done principally to enhance the impact of the community service provided and also to enrich student learning. various models have been developed to enhance and extend the impact of the work of clinic students and teachers. clinical programs in new south wales have a particularly impressive record of running major superior court public interest cases. there are the continuing efforts of teachers and students involved at the university of newcastle legal centre in cases such as the eastman84 appeal to the high court, the compensation claim arising from the 1993 murder of leigh leigh and litigation arising from the police shooting of roni levi.85 the newcastle program has been particularly effective in pursuing issues regarding police accountability using a range of mechanisms, including strategic work with the media, submissions to government and acting at coronial and other inquiries. another recent example is that of the stolen generations testcases conducted by kingsford legal centre.86 other clinics have adopted community development models with a view to involving their clients and others in addressing issues of community concern. such models utilise non-casework approaches and yet are obviously informed by the casework conducted by the clinical program and the agency housing the clinic. examples of such approaches are those developed at monash and griffith. adrian evans refers to the process of community development identified in the 1970s by 22 journal of clinical legal education june 2003 84 eastman v the queen [2000] hca 29 (25 may 2000) 85 r. watterson, r. cavanagh & j. boersig, above, note 60, 7–37 86 williams v the minister aboriginal land rights act 1983 and the state of new south wales [2000] nswca 255 the brazilian educator, paulo friere and the need for clinicians to help students and clients to move beyond ‘individual reflection to group reflection upon the underlying social injustices which diminish an equitable society.’87 the griffith clinical program includes students working in groups on community development projects. given the complex and ongoing nature of many community concerns, discrete projects are designed in relation to particular issues which can be completed by successive groups of students, each building on the work done by previous groups with continuity being provided by clinic and community legal centre staff acting as project supervisors. project areas have included property rights of mobile home park residents and litigation funding arrangements (particularly ‘no win, no fee’). legal education in context the emphasis placed by australian clinic teachers on student learning has significantly increased in the past decade. in a series of interviews, many clinicians involved in early australian programs told me that they had started their time as student supervisors without having considered the teaching side of the process in great detail. they tended to be more concerned with community service and law reform issues. discussions with current clinic teachers reveal a more substantial understanding of the scope for improving service and law reform achievements through more effective teaching practices. there is also a greater awareness of the potential for clinic-based learning to complement the other learning in which law students are involved. the work done by simon rice in his time at kingsford legal centre from 1989 to 1995 represents the most substantial example of australian clinical legal education scholarship produced to date. rice was greatly assisted in this work by the unsw law school decision to allow the clinic to not take on students in semester 2, 1990. in the absence of students, kingsford legal centre conducted a comprehensive review of its operations. the unsw law school received support from the law foundation of nsw for rice to visit clinical programs in the usa, england and canada. rice’s contribution has had a significant impact on the development of clinics in australia during the 1990s. a guide to implementing clinical teaching method in the law school curriculum88 was published in 1995 and provided a useful account of the issues facing people considering the establishment or refinement of a clinical program. the clinical programs established in the 1990s also benefited from the increased interest in legal education in australia exemplified by the australasian law teachers association law teaching workshop and the book the quiet [r]evolution: improving student learning in law by le brun and johnstone.89 the ethics focus of australian clinical legal education has been more clearly articulated in recent years. the la trobe initiative to develop a clinic-based offering of the ethics subject required for admission to legal practice is a significant development in several respects. as well as being the first australian clinical program to involve students taking responsibility for clients within a legal aid office rather than a community legal centre, the ethics orientation of the subject lends itself to more extensive discussion of professional responsibility issues. clinical legal education in australia: a historical perspective 23 87 a. evans, ‘client group activism and student moral development in clinical legal education’ (1999) 10 legal education review 179. 88 s. rice & g. coss, a guide to implementing clinical teaching method in the law school curriculum, january 1996, centre for legal education 89 m le brun & r johnstone, the quiet revolution: improving student learning in law, law book company, 1994 judith dickson and mary anne noone rightly identify that the clinical setting ‘constantly gives rise to spontaneous and various ethical questions which challenge and test students’.90 given that written ethical conduct rules are ‘signposts at the crossroads not a fence along the entire length of the highway’91, clinics provide students with opportunities to develop the ability to identify and address ethical issues in relation to matters including conflict of interest, confidentiality and legal professional privilege. the murdoch clinical program (scales) has identified the importance of involving students in providing legal assistance to asylum seekers. in 2000, mary anne kenny and anna copeland persuasively argued that such cases are effective in ‘encouraging students to recognise systemic injustice’.92 these cases ‘have a profound effect on the students as they are faced with the broader social and political issues that these cases present.’93 the intensification of the australian public debate on asylum seeker issues in 2001 and 2002 reinforces their argument. kenny and copeland state that what they ‘hope to achieve as clinical supervisors is to foster a “rights based” methodology that students will apply across all their legal work. this involves students gaining an understanding of, and a commitment to, fundamental human rights as an important principle of any legal practice.’94 at monash, adrian evans is now engaged in work seeking to more clearly articulate the links between community development processes and the development of values in law students. evans has recently written of the need for clinical supervisors to stimulate respectful argument amongst their students in relation to competing moral viewpoints identified through the process of community development.95 he is also involved in a project designed to determine the values which appear to characterise the mass of australian lawyers in their early careers. practical legal scholarship during 1984, the director of research in the monash law faculty, professor richard fox, wrote to the dean articulating a concern often expressed by clinical teachers: ‘it is apparent that academic staff who devote their time whole-heartedly to the clinical programme may later find themselves at a disadvantage in securing promotion because of their reduced productivity during their time in the programme. their contribution to the teaching, community service and administrative sides of the legal service are not seen by those who place prime value on research as compensating for an apparent weakness in their publication record... the acceptance of the clinical programme and the work of its staff as part of mainstream academic life will be enhanced if it has a built-in research element.’96 24 journal of clinical legal education june 2003 90 j. dickson & m. a. noone, ‘the challenge of teaching professional ethics’, paper presented at the australasian professional legal education council international conference, skills development for tomorrow’s lawyers: needs and strategies, sydney, september 1996, published in conference papers volume 2, 847. 91 f. oatway, ‘motivation and responsibility in tax practice: the need for definition’ cited by y. ross, ethics in law: lawyers professional responsibility and accountability in australia, 3rd.ed. , 2001, 45 92 m. a. kenny & a. copeland, ‘clinical legal education and refugee cases: teaching law students about human rights’ (2000) 25 (5) alternative law journal 252 93 ibid, 253 94 ibid. 95 evans, above, note , 181. 96 memorandum to professor r. baxt from professor r. fox re. research and the clinical legal education programme dated 30 july 1984. while australian clinical teachers have struggled for acceptance as mainstream academics, many have made substantial contributions to developing a body of practice-related legal scholarship. perhaps the best example of such scholarship is the lawyers practice manual, published in new south wales in 1983, victoria in 1985 and queensland in 1993. clinicians made very substantial contributions to the development of the new south wales and victorian manuals in particular. the lawyers practice manual (new south wales) was developed with a very substantial contribution from neil rees, then responsible for the unsw clinical program. the 4 founding editors of the lawyers practice manual (victoria) were all clinic teachers from monash97 and springvale legal service is listed as the author on the spine of the manual. the need for such a manual was ‘first discussed at a seminar arranged for legal aid lawyers by the australian legal workers group’ which identified ‘a glaring gap in legal literature and training: too much hard practical knowledge inaccessibly stored in the heads of those who have gained it by long experience.’98 clinical teachers have been and continue to be substantial contributors to the alternative law journal, which from 1974 until 1991 was known as the legal service bulletin. there have also been major reports written by clinical teachers on matters related to their casework, often in conjunction with other community legal centre staff. the urgent repairs needed report, published by the federation of community legal centres in 1988, highlighted the urgent need for reform of the law concerning motor vehicle property damage.99 springvale legal service co-ordinator, simon smith was a driving force behind this important publication. clinicians have also been prominent in policy formulation in relation to justice issues with mary anne noone serving as a member of the national legal aid advisory committee and as a director of victoria legal aid. simon rice served a term as a legal aid commissioner in new south wales while the author served 2 terms as a legal aid commissioner in victoria. academics from the university of newcastle legal centre have published a series of reports as part of the public interest litigation in which they have engaged.100 such reports ‘have sought redress of individual injustice, exposed failures in legal fact gathering and analysis and laid ground for more general reforms.’101 in my view, such reports represent an important form of practical legal scholarship which should be developed further by academics involved in other australian clinical programs. clinics are now increasingly being seen as potential legal research sites, providing opportunities for clinicians to obtain prestigious research grants. with student supervision loads lighter than they were for australian clinicians in the 1970s and 1980s, research opportunities are more likely to be pursued. monash clinician, adrian evans is the second chief investigator for a research project on the development of values in new lawyers which received australian research council funding clinical legal education in australia: a historical perspective 25 97 simon smith, maureen tehan, sue campbell & guy powles 98 n. rees, c. ronalds & r. west, ‘preface’, lawyers practice manual (new south wales), law book company, sydney, october 1993. 99 s. bailey, s. liden & s. smith, urgent repairs needed: motor vehicle property damage in victoria, (october 1988). for commentary, see j. giddings, ‘casework, bloody casework’ (1992) 17 (6) alternative law journal 261, 263–264 100 for example, see r. cavanagh, j. boersig & r. watterson, the murder of leigh leigh november 1989 – a forensic report (1996), r. cavanagh & r. pitty, too much wrong – report on the death of edward james murray (1997) and r. watterson et al, a very public death: the police shooting of roni levi. 101 r. watterson, r. cavanagh & j. boersig, above, note 60, 19 for 2001–2003. it will obviously be a challenge for clinicians to balance their involvement in a timeconsuming but highly rewarding teaching process with engagement in research and other scholarship. client-centred lawyering australian clinical programs have strongly emphasised the importance of students using multidisciplinary approaches to address the issues facing their clients. both springvale legal service and west heidelberg community legal service shared premises right from their inception with major community-based service providers.102 unsw pioneered the offering of a combined degree in law and social work incorporating a substantial placement component at kingsford legal centre. the work of both clinicians and students has been enhanced by this relatively easy access to other professionals. in 1984, simon smith wrote that ‘work in the centre provides students in most cases with their first real introduction to the operation and the impact of the legal system. the lasting impression on these future lawyers of this introduction cannot be overestimated.’103 the commitment to multi-disciplinary approaches continues with, for example, the university newcastle legal centre co-locating with other services104 and the griffith clinical program working closely with social workers employed at caxton legal centre. the specialist clinical program established by monash to assist victims of sexual assault involves participating students in close work with a range of professionals.105 clinical programs have also focussed strongly on developing the client interviewing and advising skills of students. when adrian evans devised a clinical course at la trobe in 1976, it was run with the la trobe counselling service and was designed to introduce client-centred interviewing to the src legal service.106 extensive use was made of legal interviewing and counselling: a clientcentered approach, the pioneering book on by ucla academics, david binder and susan price.107 the earliest seminar programs attached to the monash and unsw clinical programs emphasised the development of interviewing skills. visions of professionalism in an article in the inaugural issue of the international journal of clinical legal education, judith dickson raises the need for clinic teachers to reconsider the legal professional model which underpins the community service focus of their work. dickson expresses concern that the organized legal profession makes use of notions of community service in a negative way, ‘as a justification for privilege’.108 the concern here is that acceptance of this traditional vision of the lawyer as a professional ‘is tied to other aspects of the profession which entrench privilege and 26 journal of clinical legal education june 2003 102 springvale community aid and advice bureau and west heidelberg community health centre. 103 s. smith, above, note 4, 52 104 many rivers aboriginal legal service and the hunter regional office of the new south wales legal aid commission 105 a. evans, “specialised clinical legal education begins in australia” (1996) 21 alt lj 79 106 adrian evans, interview, 17 october 1997 107 d. binder & s. price, legal interviewing and counselling: a client-centered approach, (1977) west publishing, st paul. 108 j. dickson, ‘clinical legal education in the 21st century: still educating for service?’ (2000) 1 international journal of clinical legal education 33, 36. injustice – such as monopoly over delivery of services, self-regulation etc.’.109 dickson further suggests that clinical legal educators must ‘articulate a new vision of the role and function of lawyers in society. this new vision should expressly challenge a notion of “professionalism” that appears self-serving and self-interested.’110 i would challenge dickson’s characterisation of clinicians as relying on a vision of professionalism which contains characteristics which entrench privilege and injustice. it is the abuse of those characteristics which entrenches privilege and injustice. australian clinicians have long emphasised to their students those aspects of the legal professional ideal which focus on the importance of the work of lawyers to the effective operation of democratic institutions. lawyers who are independent of government and able to act impartially have an important contribution to make to safeguarding the fairness of administrative processes and the accountability of powerful interests. many australian clinical teachers have actively used their work to undermine abuses of professional ideals and have called for change in a range of respects to existing regulatory frameworks. foremost in this regard has been the work done in the monash clinical program by simon smith and then adrian evans. smith worked with students to highlight inadequacies in the regulatory work of the law institute of victoria, particularly in the practices of certain local lawyers. in smith’s view, it was the series of cases run by springvale legal service against a lawyer named peter c. neil that exposed important inadequacies in the disciplinary functions and operations of the law institute of victoria and which gave rise to legislative reforms in the early 1990s.111 smith’s work was continued by evans who also raised important concerns regarding sources of funding used by the law institute of victoria for their disciplinary functions.112 working on these cases persuaded evans that there was another dimension to developing socially responsible lawyers and that was dealing with lawyers who were unethical. ‘you can’t just operate at the level of education of good lawyers. you also have to be prepared at some level as a community to deal with lawyers who are rogues.’ evans said ‘we couldn’t be coherent as a clinical programme unless we were addressing both ends of the problem.’113 dickson refers to various official committees convened in australia during the 1990s which addressed issues related to the regulation of the legal profession.114 community legal centres made substantial submissions to many of these committees. in a number of instances, the community legal centre submissions were heavily influenced by clinicians. for example, the federation of community legal centres in victoria made a series of submissions to the costs of justice inquiry and then to the access to justice advisory committee which were strongly influenced by clinicians clinical legal education in australia: a historical perspective 27 109 ibid, 40. 110 ibid, 43. 111 simon smith, personal interview, 14 september 2002 112 see a. evans, ‘professional ethics north and south: interest on clients’ trust funds and lawyer fraud. an opportunity to redeem professionalism’ (1996) 3 (3) international journal of the legal profession 281 113 evans interview, above, note 114 dickson, above, note 92, 34. these included the costs of justice inquiry conducted in the early 1990s by the senate standing committee on legal and constitutional affairs, the law reform commission of victoria reference on access to the law in 1992, the access to justice advisory committee which reported to the commonwealth attorney-general in 1994, the working party on the legal profession which reported to the victorian attorney-general in 1995 and the trade practices commission 1994 review of the legal profession. including mary anne noone (la trobe), adrian evans (monash) and myself (la trobe).115 similar contributions were made by clinicians to the trade practices commission inquiry into the legal profession in 1993 and the access to justice advisory committee in 1994. a common theme of such submissions has been that if lawyers do not effectively regulate themselves and if they abuse their professional status, there is a need for reform. i contend that the notion of professionalism articulated in such submissions was not a chimerical ideal but rather one that identified the importance of lawyers in the work of our democratic institutions, in ensuring procedural fairness and monitoring the actions of governments in an era of privatisation as well as the need for lawyers to remain independent of governments, clients and employers. such submissions can be characterised as recognising the value of the work of lawyers as well as the importance of effective accountability for legal professionals. conclusion various factors are contributing to increasing interest in clinical legal education in australia. many students are drawn to clinics by a range of factors including the opportunity to be part of much needed community services, to find a practical context for their other law studies and to develop legal practice skills. law schools and universities have viewed clinics as valuable student learning environments as well as sites for significant community service contributions. law schools have also used clinics to distinguish themselves from neighbouring law schools in terms of the learning opportunities provided to students. community legal centres are increasingly interested in potential benefits from links with clinical programs, such as harnessing the enthusiasm and research skills of students as well as developing their base of student volunteers. further, governments are increasingly interested in the contributions clinics can make to the delivery of legal services. australian legal clinicians have worked collaboratively and collectively within their clinics, their law schools and across universities. many students have been enthused by an enhanced appreciation of the importance of the law to our democracy. students are able to gain a sense that their efforts can assist people to assert their rights. many members of the community have received valuable legal assistance. practices of the legal and other professions, government institutions, the media and the corporate sector have all been subjected to close scrutiny and challenge. it remains important that clinicians emphasise the need to take a broad approach to their work, an approach that goes well beyond a focus on legal skills development and concentrates on social justice issues. australian clinicians have taken the broad view in the past and appear likely to continue to do so. 28 journal of clinical legal education june 2003 115 see federation of community legal centres (vic) inc, submission to the national legal aid advisory committee review of legal aid, july 1989, & submission to the senate inquiry into costs of justice, part 2 the court system, december 1989 & in particular part 3 the legal profession, june 1990. reviewed article – teaching and learning in clinic risks and rewards of externships: exploring goals and methods linda f. smith[footnoteref:1]*, jeff giddings[footnoteref:2]**, leah wortham[footnoteref:3]***[footnoteref:4]+ [1: * james t. jensen professor of law and clinical program director, s.j. quinney college of law, university of utah.] [2: ** professor of law and director, monash oakleigh legal service, monash university.] [3: *** professor emerita of law, columbus school of law, the catholic university of america.    ] [4: + the authors would like to thank stephen young, elizabeth edinger, and emily black, reference librarians at columbus school of law of the catholic university of america (cua), for their invaluable research assistance and the albert and elaine borchard fund for faculty excellence. the authors were privileged to develop the ideas presented here through presentations at the international journal of clinical legal education and the association of canadian clinical legal education conference: the risks and rewards of clinic, joined by neil gold and martina cartwright at the university of toronto in july, 2016; at the american association of law schools 39th annual conference on clinical legal education, joined by erika curran, elizabeth mccormick, melissa swain and martina cartwright in baltimore, maryland in may, 2016; and at externship8 conference, joined by fred klein, inga laurent and phyllis kotey in cleveland, ohio in march, 2016; the authors would like to thank the sponsors of these conferences and their co-presenters.] introduction this article grew from a presentation relating externship clinical programs to the theme of the july 2016 international journal of clinical legal education and association of canadian legal education conference: the risks and rewards of clinical legal education programmes. externships or field placement programs involve students placed away from the law school and supervised by a person who is not employed by the law school. externships offer many potential rewards for students as well as other stakeholders, including especially community institutions. but there are also risks—risks that the externship will be expected to accomplish too much with too few resources or that the externship program will be held back in the potential for contribution due to inadequate imagination or planning. this article seeks to encourage externship teachers to put aside assumptions that are sometimes made about how externship programs “should be” and consider some alternative approaches to course design and possible goals for externship courses. skills development often is assumed to be a primary goal for all clinical programs, including externships. similarly, clinical education often is equated with encouraging student commitment to social justice, and some assume that all forms of clinical education including externships should be directed toward this end.[footnoteref:5] this article argues that broad characterizations of clinical programs generally, and externship programs specifically, as skills development or promoting social justice can obscure the need to look more specifically at what a particular course seeks to achieve with regard to student learning and motivation. we argue to put aside broad characterizations of goals for externship programs and instead to focus on intentional design working back from desired outcomes for students and considering the particular law school student population, community in which the law school is situated, and the externship courses’ place in the overall curriculum. [5: the global clinical movement: educating lawyers for social justice, part ii (frank s. bloch, ed. 2011); jeff giddings, promoting justice through clinical legal education, (2013).] part i discusses intentional design. while “skills” acquisition may be a desired outcome, a course should be specific about what “skills” students should acquire and choose design features in light of those objectives. part ii. a. discusses the wide-ranging conceptions of “skills” employed by various regulators and commentators on legal education and how the malleability of the concept may make it less than useful without careful delineation of a particular course’s desired outcomes. part ii. b. develops an “intentional” approach to design of externship programs considering how placement type, supervisor selection, division of responsibility between law school externship teacher and site supervisor, classroom component topics, and teaching methods might differ among two types of externships termed “tailor-made” and “retail” externships. many discussions of clinical education assume commitment to social justice is a necessary or overarching goal. with this assumption, some externship programs take as a given that only placement in non-profit agencies should be permissible. in doing so though, there often is little explicit consideration of how one would know students’ commitment to social justice has deepened and what methods, aside from the design feature of placement type, are directed toward that outcome. part iii of this article considers complementary values toward which a program might be directed: formation of professional identity and institutional critique. an externship course could be directed toward helping students consider how to act consistent with their vision of the kind of lawyers they wish to be; it could critically assess how institutions function and what lawyers do within them. this part argues that a useful design frame toward these goals is the “micro” and “macro” exploration of values. micro examination of values refers to definition of the students’ own professional identity and desired course for their legal careers. this may be achieved through working toward learning outcomes like enhanced student ability to learn from experience, helping students establish patterns of intrinsic motivation and self-direction to carry through to their careers, and assisting them in deciding the kind of lawyer they want to be both in the sense of particular types of jobs and the broader sense of professional identity.[footnoteref:6] macro exploration refers to the motivation to and capacity for institutional critique and the way lawyers function in the legal system and society more generally—carrying out the “public citizen” role referred to in the preamble of the aba model rules of professional conduct. part iii’s discussion of macro values explores externships’ potential to help students understand the dynamics and requirements of law-related workplaces[footnoteref:7] and consider critically whether and how lawyers’ behaviour promotes or hinders the achievement of justice. stuckey et al observed that externships are well suited to enable students to engage in critique of legal institutions and practice but observed “what is surprising is the apparent absence of our collective appreciation of practice observation courses as a forum for studying the values, behaviors, attitudes, and ethical requirements of lawyers (professionalism).”[footnoteref:8] [6: learning from practice: a text for experiential legal education 685 (leah wortham, alexander scherr, nancy maurer, & susan l. brooks, eds. 3rd ed., 2016) [hereinafter lfp]. ] [7: robert condlin, ‘tastes great, less filling’: the law school clinic and political critique, j. legal ed. 45 (1986); david givelber et al., learning through work: an empirical study of legal internships, 45 j. legal ed. 1 (1995); neil kibble, reflection and supervision in clinical legal education: do work placements have a role in undergraduate legal education?, 5 int’l. j. legal prof. 83 (1998); elliot milstein, clinical legal education in the united states: in-house clinics, externships, and simulations, 51 j. legal ed. 375 (2001).] [8: roy stuckey et al., best practices for legal education: a vision and a road map 198 (2007).] in summary, the article urges moving past general references to “skills development” and “promoting social justice” to more specific articulation of the outcomes the program seeks with regard to student motivation and capabilities and aligning design features to those outcomes. the article argues that a component of professional identity formation should be the capacity for and motivation to engage in institutional critique and work for constructive change consistent with the public citizen role. the concepts of micro and macro exploration of values are offered as a conceptual framework for learning objectives that promote social justice through students’ enhanced competency and motivation toward that goal. i. intentional design as will be discussed in part ii, a range of national legal education regulatory schemes are converging in their use of student learning outcomes expressed as competencies to be gained in a legal education program and in particular courses.[footnoteref:9]  this approach starts from what students should be able and motivated to do as a result of their education, including how assessments will measure if outcomes are met, how students will understand what they are supposed to learn, how they will receive useful feedback to enhance progress to learning goals, and so on. more traditionally, teachers thought of what they needed to “cover.” [9: a.b.a. sec. of legal education and admissions to the bar, report of the outcome measures committee 11-13 (2008).  https://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/reports/2008_outcome_measures_committee_final_report.authcheckdam.pdf (reviewing  practices from other countries); stuckey et. al. supra note 4, at 45-49 (referring to developments in the scotland, northern ireland, england and wales, and australia); anna huggins, incremental and inevitable: contextualising the threshold learning outcomes for law, 38 u.n.s.w.l.j. 264 (2015) (history of australian threshold learning objectives for llb and jd degrees and context including the experience of other countries); anthony niedwiecki, law schools and learning outcomes: developing a coherent, cohesive, and comprehensive law school curriculum, 64 clev. st. l. rev. 661 (2016) (describing the us regulatory path to requirement of learning outcomes).] the “backward design” approach of wiggins & mctighe[footnoteref:10] has been influential in us k-12 education and general university education and has now been applied by some us legal educators as well.[footnoteref:11] legal education works from british commonwealth countries[footnoteref:12] more frequently refer to the work of john biggs.[footnoteref:13] teaching law by design, a well-known book by american legal educators michael hunter schwartz, sophie sparrow, and gerald hess, does not refer explicitly to wiggins or biggs.[footnoteref:14] it, however, takes a consistent approach focusing on beginning with goals, an assessment of the target learners, and consideration of the assessments that will provide information on whether the students are learning.[footnoteref:15] [10: grant wiggins & jay mctighe, understanding by design, (2d ed. 2005)] [11: see, e.g., wallace j. mlyniec, where to begin? training new teachers in the art of clinical pedagogy,18 clinical l. rev. 905 (2012); wallace j. mlyniec, developing a teacher training program for new clinical teachers, 19 clinical l. rev. 327 (2012).] [12: see, e.g., neil gold, clinic is the basis for a complete legal education: quality assurance, learning outcomes and the clinical method, 22 int’l j. clinical leg. ed. 1 (2015); angela macfarlane & paul mckeown, 10 lessons for new clinicians, 13 int’l j. clinical leg. ed.65 (2008).] [13: john biggs & catherine tang, teaching for quality learning at university (4th ed. 2011)] [14: michael hunter schwartz, sophie m. sparrow, & gerald f. hess, teaching law by design: engaging students from the syllabus to the final exam (2nd ed. 2017).] [15: id. at chapter 3, designing the course, 33-59.] australian academic nick james refers to the work of both wiggins and biggs, as well as other education researchers, to coin the term “educationalism” to describe an emphasis on university teaching consistent with education scholarship, which grew from some university professors’ interest in research on teaching and learning and efforts to encourage colleagues to adopt methods consistent with this work.[footnoteref:16]   he argues that in some instances these initial motives may have been co-opted by “corporatism,” which he uses to describe an emphasis on “the accountability of academics, and the efficiency, marketability, and growth of the law school as a corporate institution,” and the possible role of this convergence in faculty resistance to adopting new methods.[footnoteref:17] while the authors are concerned that bureaucratization and heavy-handed regulation can “hijack” concepts like learning outcomes and aligned assessment, we continue to believe that backward design and constructive alignment are useful approaches to course design toward their original purposes of enhancing students’ educational experiences. [16: nick james, ‘how dare you tell me how to teach’: resistance to educationalism within australian law schools, 36 u.n.s.w.l.j. 779 (2013). ] [17: id. at 779, 784, 789-798. ] clinical education, by its nature, presses teachers to consider the nature of the experience from which a student would learn—not just what readings the teacher would assign or what she might say in a class. we all may have experienced trying to communicate that difference in the teacher’s role to classroom teachers, e.g., in application of the law school’s teacher evaluation practices to clinical teachers. traditional evaluation of classroom teaching for retention, promotion, and tenure normally includes classroom visits by faculty to observe “teaching.” it is sometimes difficult to explain to relevant law school committee members that an evaluation of a clinical teacher’s “teaching” would include looking at much more than what happens in the “classroom component.” for example, an externship teacher’s teaching effectiveness is also based in choices about placement sites and supervisors, ways of interacting and communicating expectations to field supervisors, techniques for fostering student reflection and self-learning and evaluation, and other dimensions of structuring the student’s experience. this article flows from our view that there are not per se “right choices” about such design features; they should flow from the objectives of the particular externship. rather than using an intentional design approach, we have observed that teachers can fall into “assumptions” about the goals of clinical education and program structure. this article encourages externship teachers to “open the frame” and think about what they most would like to see students gain from a particular course, realizing that there are a broad range of learning outcomes that might be attained through the externship method. program structure and design should then follow “intentionally” from those choices rather than from assumptions about how things “should be.” for example, it sometimes is assumed that externship programs “are” directed toward enhanced proficiency in client representation and advocacy tasks so, therefore, it is best to have a small, repeating group of placements where the teacher is assured what tasks students will perform and that the placement supervisor has expertise in those tasks. as the examples of “tailor-made” and “retail” externships developed in part ii.b discuss, those design choices appropriately might vary if the skills considered were ones of more general work management and enhanced self-directed learning, depending on other coursework students might have had, and whether a primary course goal was development of professional identity and consideration of the type of lawyer a student wants to “be.” similarly, part iii considers an alternative approach to the assumptions that a primary goal of all clinical education including externships is promoting social justice and, therefore, placements should be limited to non-profit organizations engaged in social justice work. ii. assuming skills development as a predominant goal for externship programs a. the malleable definition of “skills” regulators and legal educators often characterize the skills associated with legal work in different ways. some are more specific and detailed than others. there are also differences across countries in the expectations placed on law schools to contribute to the development of such skills. in this part of the article, we provide an overview of some of the approaches taken to articulating skills that should be developed as part of a legal education. while there are points of common ground, differences relating to level of prescription and content make it difficult to distil the various views into a single framework. the approach taken in the usa and is more prescriptive of law school content than in australia, canada, and england. australian and english regulators rely heavily on the acquisition of skills during a practice-focused training program that is generally undertaken separate from and following upon completion of a law degree. while the term “skill” is used extensively by these various regulators, the term is generally not defined although examples may be given. the macquarie dictionary provides this useful succinct definition of the noun, “skill”: “the ability that comes from knowledge, practice, aptitude etc., to do something well.”[footnoteref:18] externships and other forms of experiential learning can be designed to provide students with opportunities to build law-related skills through their blending of knowledge, practice, and aptitude. the potential of externships to contribute to this skill development is increased when the skills in question are fully articulated. [18: the macquarie concise dictionary 1086 (3rd ed. 2003). ] there is also variation in the terms used to describe the skills to be developed through a legal education. some authors refer to “legal skills” while others refer to “lawyering skills” or “professional skills.” an alternative approach is schultz and zedeck’s development of “lawyering-effectiveness factors” through interviews with five stakeholder groups of university of california at berkeley law school: lawyer alumni in three cities; clients plus reading complaints made by clients; faculty; students; and judges. [footnoteref:19] [19: marjorie m. schultz & sheldon zedeck, predicting lawyer effectiveness: broadening the basis for law school admission decisions, 36 law & soc. inquiry 620 (2011). ] some characterizations of skills are narrow in their focus on specific tasks required of lawyers (for example, legal analysis and reasoning, drafting of legal documents) while others address skills that should be transferable between different professions and occupations (for example, collaboration, self-management). most include interpersonal skills in legal contexts as well as skills related to self-evaluation and reflective practice. along with variation in the language used and concepts addressed, there is common ground among many of the various stakeholders in legal education regarding the importance of law schools graduating students who are “practice ready.” kindred calls have come from critics, regulators, some law faculty, and students. 1. the regulatory approach the american bar association (aba), as the accrediting agency for american law schools, has taken significant steps to integrate “skills” into the curriculum by requiring at least six credits of “experiential course(s).”[footnoteref:20] the aba standards state that the “learning outcomes” to be achieved in a legal education shall include competency in “[l]egal analysis and reasoning, legal research, problem-solving, and written and oral communication in the legal context” as well as “[o]ther professional skills needed for competent and ethical responsibilities to clients and the legal system.”[footnoteref:21] these “other professional skills . . . may include skills such as interviewing, counseling, negotiation, fact development and analysis, trial practice, document drafting, conflict resolution, organization and management of legal work, collaboration, cultural competency, and self-evaluation.”[footnoteref:22] [20: am. bar ass'n, aba standards and rules of procedure for approval of law schools 2016-2017 303(a)(3) (2016), https://www.americanbar.org/content/dam/aba/publications/misc/legal_education/standards/2016_2017_aba_standards_and_rules_of_procedure.authcheckdam.pdf.  the new york court of appeals has gone one step further and now requires 15 credits of experiential learning, or an alternative certification of competence by the law school. 22 nycrr 520. order available at: http://www.nycourts.gov/rules/part520-rule-change-final-121015.pdf a 2013 california task force similarly recommended 15 credits of experiential courses or the equivalent. http://www.calbar.ca.gov/about-us/our-mission/protecting-the-public/public-comment/public-comment-archives/2013-public-comment/2013-07. ] [21: standard 302, aba standards, supra note 16.] [22: interpretation 302-1, standard 302, aba standards, supra note 16.] an experiential course must be “primarily experiential in nature” and must be “a simulation course, a law clinic or a field placement.”[footnoteref:23] such a course must “integrate doctrine, theory, skills and legal ethics, and engage students in performance of one or more of the professional skills identified in standard 302; develop the concepts underlying the professional skills being taught; provide multiple opportunities for performance; and provide opportunities for self-evaluation.”[footnoteref:24] [23: id.] [24: id. ] the very language of standard 303 focuses on “skills”—multiple opportunities for their performance, the concepts underlying them, and the student’s evaluation of his or her performance of these skills. the standard that governs simulation courses and law clinics further emphasizes the importance of “skills” by requiring “direct supervision of the student’s performance by a faculty member; opportunities for performance, feedback from a faculty member, and self-evaluation.”[footnoteref:25] [25: standard 304 (b)(i) and (ii) regarding law clinics, aba standards, supra note 16. the language regarding simulation courses is almost identical at standard 304 (a)(i) and (ii). ] the aba’s recent revision to standard 304 explicitly defines externships, or “field placement” courses, as experiential courses if they provide “substantial lawyering experience that . . . is reasonably similar to the experience of a lawyer advising or representing a client or engaging in other lawyering tasks.”[footnoteref:26] this standard requires “direct supervision of the student’s performance by a faculty member or site supervisor” as well as “opportunities for performance, feedback from either a faculty member or a site supervisor, and self-evaluation.”[footnoteref:27] the focus on performance, feedback, and evaluation underscores the importance of skills acquisition to the authors of this standard. [26: standard 304(c), aba standards, supra note 16.] [27: id. (emphasis added).] externships and other forms of clinical and experiential learning are only peripherally addressed in the regulatory framework for australian legal education. the australian qualifications framework requires bachelor of law (llb) and jd qualifications to satisfy a set of threshold learning outcomes (tlos) in six categories: (1) knowledge; (2) ethics and professional responsibility; (3) thinking skills; (4) research skills; (5) ability to communicate and collaborate; and (6) self-management.[footnoteref:28] these tlos are designed to guide the general structure of australian legal education programs rather than setting requirements for particular courses within a law program. they emphasize a range of skills that could be interpreted to include the micro and macro evaluation of values discussed in the next section of this article. the tlos and the accompanying notes do not make any claims regarding the suitability of particular teaching methods for ensuring that students satisfy these requirements. [28: see https://perma.cc/x93f-ghm5 and https://perma.cc/kd4j-vqxf. see also anna huggins, supra note 5. ] while the contributions of experiential learning tend to be acknowledged by australian legal educators, this has not resulted in clinical and placement experiences being embedded in the structures for llb and jd studies. the australian best practices in clinical legal education lists various possible learning outcomes for clinical legal education, including students developing and refining their: · critical analyses of legal concepts through reflective practice; · ability to work collaboratively; · interpersonal skills, emotional intelligence, and self-awareness of their own cognitive abilities and values; · awareness of lawyering as a professional role in the context of wider society (including the imperatives of corporate social responsibility, social justice, and the provision of legal services to those unable to afford them) and of the importance of professional relationships; · developing preference for an ethical approach to legal practice and an understanding of the impact of that preference in exercising professional judgment; and · awareness of the social issues of justice, power and disadvantage and an ability to critically analyse entrenched issues of justice in the legal system. while they refer to the capacity of clinical courses to build in students an ability to practice ‘lawyering” skills;”[footnoteref:29] the authors of the australian clinical best practices emphasized potential learning outcomes well beyond narrow conceptions of legal skills and substantive legal knowledge. their intention was to highlight the potential of clinical programs to facilitate learning well beyond the skills focus often associated with such programs. [29: adrian evans et al., best practices australian clinical legal education: the final report of the project strengthening australian legal education by integrating clinical experiences: identifying and supporting effective practices (2013), file:///c:/users/youngs/downloads/pp10_1603_monash_evans_report_2013.pdf.] upon completing an llb, australian graduates must also undertake a practical legal training (plt) program or a supervised work traineeship to gain admission to the legal profession. a plt program must include at least 450 hours of programmed training along with at least 15 days of workplace experience.[footnoteref:30] the program must develop the competence of trainees in relation to three areas: skills, prescribed practice areas and values. the reference to skills covers four key skills areas: lawyers’ skills; problem solving; work management and business skills; and trust and office accounting. this characterization focuses on narrow legal skills while also addressing interpersonal skills and cultural awareness. the lawyers’ skills for which candidates must demonstrate competence are oral communication, legal interviewing, advocacy, negotiation, dispute resolution, letter writing, and drafting. [30: the practical legal training competency standards for entry-level lawyers are contained in schedule 2 of the uniform admission rules 2015. see law admissions consultative committee, practical legal training competency standards for entry-level lawyers (2015), standard 3.1 available at legal profession uniform admission rules sched. 2 (legal services council 2015), https://www.legislation.nsw.gov.au/regulations/2015-240.pdf.] while the skills requirements are fairly detailed, there are only limited specifications for the workplace experience component of the plt.[footnoteref:31] it was only in 2016 that australian admitting authorities approved standards relating to the purpose of the workplace experience phase of plt studies. the standards set four learning outcomes for such workplace experiences: applying their learning in the context of legal practice; being supervised in the execution of legal work; gaining a “basic understanding” of what legal practitioners do in practice; and critically reflecting on their experiences.[footnoteref:32] these arrangements mean that the opportunity to effectively integrate the placement with the other aspects of the plt program has been missed. concerns have been raised elsewhere in relation to this lack of engagement with issues related to the effective design of the workplace experiences undertaken by students.[footnoteref:33] the australian plt standards would benefit from specific detail regarding the purpose and content of the workplace experience and the skills learners need to develop. [31: id, standard 4.1, cf. standards 5.10. 5.12, 5.14 & 5.16 in relation to skills requirements.] [32: standards for plt workplace experience (law admissions consultative committee 2017), https://www.lawcouncil.asn.au/files/web-pdf/lacc%20docs/240769433_8_standards_for_plt_workplace_experience.pdf.] [33: jeff giddings, the assumption of responsibility: supervision practices in experiential legal education, in global legal education approaches: special reference to the middle east 29-52, mutaz qafisheh & stephen rosenbaum (eds. 2016); jeff giddings & michael mcnamara, preparing generations of future lawyers for legal practice: what’s supervision got to do with it? 37 u.n.s.w.l.j. 1226 (2014).] in england and wales, the joint statement on the academic stage of training issued by the law society and the general council of the bar specifies that qualifying law degrees and graduate diplomas in law need to address skills including: legal research, analysis and application “to the solution of legal problems;” oral and written communication “to the needs of a variety of audiences;” problem solving; use of language “with care and accuracy;” electronic research, communication, and work processing.[footnoteref:34] the bar professional training program that graduates must complete in order to practice as a barrister addresses the development of skills related to advocacy, opinion writing, drafting, conference skills, dispute resolution, and legal research.[footnoteref:35] these standards involve a relatively limited set of lawyering tasks and have not addressed the broader conceptions used elsewhere. [34: this summary of the joint statement requirements is taken from legal education and training review final report, setting standards: the future of legal services education and training regulation in england and wales ch. 2, annex 1 (june 2013), http://www.letr.org.uk/wp-content/uploads/letr-report.pdf. ] [35: id. ] the 2013 report of the legal education and training review for england and wales adapted a framework from medicine to identify 32 attributes related to professional competencies in legal services.[footnoteref:36] these competencies extend beyond a narrow conception of the skills required by lawyers to address six dimensions: [36: legal education and training review, setting standards: the future of legal services education and training regulation in england and wales 140 (2013), http://www.letr.org.uk/wp-content/uploads/letr-report.pdf.] · cognitive (including self-directed acquisition of new knowledge and learning from experience); · integrative (including managing uncertainty); · context (including understanding the professional work setting and professional work); · relationship (including handling conflict and supervision); · affective/moral (including empathy and social responsibility); and · habits of mind (including willingness to acknowledge and correct errors). similarly, to australia, legal education regulators for england and wales have not set requirements as to the extent of law student engagement in experiential learning or the content of any such experiences. the report of the legal education and training review contained surprisingly little reference to the place of clinical and experiential methods in the llb. the english clinical legal education organisation (cleo) published model standards for live client clinics that refer to the development of “legal and transferrable skills” as one of four broad aims of live client clinics. the other aims relate to developing and enhancing the students' learning experience and understanding of the substantive law and legal process; professional responsibility and ethics; and the role of law and justice in society. the cleo model standards represent good practice and are not intended to be prescriptive. hence, they do not define skills or specify required leaning outcomes but rather give possible examples including the development of skills related to client interviewing, drafting, dispute resolution through negotiation or advocacy, and group work.[footnoteref:37] [37: model standards for live client clinics (clinical legal education organisation 2007), https://perma.cc/hr7y-hsy5.] canadian law schools are required to meet a national requirement specified by the federation of law societies of canada.[footnoteref:38] this national requirement outlines three sets of competencies: addressing skills (problem-solving, research, and communication); ethics and professionalism; and substantive legal knowledge. the canadian requirement also addresses the nature of the academic program in terms of its length (3 years full-time), mode (primarily in-person), pre-entry requirements, and the inclusion of a course dedicated to ethics and professionalism. no reference is made to the extent and content of law student engagement in experiential learning. canadian clinicians have not yet developed universal best practices or standards for the operation of experiential programs.[footnoteref:39] [38: http://docs.flsc.ca/ncanatreqnov2015.pdf ] [39: email from gemma smyth to jeff giddings, (august 25, 2016) (on file with the author).] these statements from regulators illustrate that skills development is taken to be an important focus for legal education and for experiential programs that form part of the preparation of lawyers for their profession. some statements tend to be concerned with specific tasks required of lawyers rather than addressing the more generalized skills required for working with clients and other aspects of successful law practice. further, they provide little in specificity on the particular skills to be developed by experiential programs such as externships. 2. commentators’ approaches while it is clear that “skills” are important, it is less clear exactly what skills legal education should impart. some writers use broad categories while others are more specific. the specifically legal skills identified tend to relate to legal research, working with clients, various forms of legal communication, dispute resolution and trial practice. the broader approaches incorporate reference to collaboration, recognizing and addressing ethical issues, work management, and self-evaluation. externships have the potential to provide students with development opportunities across the range of these skills. the 1992 maccrate report[footnoteref:40] provided an overview of skills and values that lawyers need, and includes as “fundamental lawyering skills” the following: problem-solving, legal analysis and reasoning; legal research; factual investigation; communication; counseling; negotiation; litigation and alternative dispute-resolution procedures; organization and management of legal work. it broadens this list by also identifying the importance of recognizing and resolving ethical dilemmas.[footnoteref:41] [40: am. bar ass’n, legal education and professional development-an educational continuum, report of the task force on law schools and the profession: narrowing the gap (1992), https://www.americanbar.org/content/dam/aba/publications/misc/legal_education/2013_legal_education_and_professional_development_maccrate_report).authcheckdam.pdf. [hereinafter maccrate report].] [41: id. at 138–40. ] the 2007 best practices for legal education[footnoteref:42] book identifies “attributes of effective, responsible lawyers” as including: [42: stuckey et. al., supra note 4, at 65–79 (2007). ] 1. self-reflection and lifelong learning; 2. intellectual and analytical skills; 3. core knowledge of the law; 4. core understanding of the law; 5. professional skills; & 6. professionalism. these attributes indicate a broader conception of the requirements for effective lawyering. externships and other forms of experiential learning have valuable and distinctive roles to play in relation to attributes 1, 5, and 6 in particular. externships—both the practice-based experience and the related classroom component—can provide students with opportunities to understand and develop reflective practices. they can develop the ability to learn from their own experiences as well as those of clients and colleagues. in exploring the “professional skills” required by lawyers, the 2007 us best practices book identifies the following: · the application of techniques to communicate effectively with clients, colleagues, and members of other professions; · the ability to recognize clients’ financial, commercial, and personal constraints and priorities; · the ability to advocate a case on behalf of others and participate in trials to the extent allowed upon admission to practice; · effective use of current technologies and strategies to store, retrieve, and analyze information and undertake factual and legal research; · an appreciation of the commercial environment of legal practice, including the market for legal services; · the ability to recognize and resolve ethical dilemmas; · effective skills for client relationship management and knowledge of how to act if a client is dissatisfied with the advice or service provided; · employment of risk management skills; · the capacity to recognize personal and professional strengths and weaknesses, identify the limits of personal knowledge and skill, and develop strategies that will enhance professional performance; · the ability to manage personal workload and manage efficiently, effectively and concurrently a number of client matters; and · the ability to work effectively as a member of a team.[footnoteref:43] [43: id. at 77.] there appear to be four key dimensions to these professional skills. they relate to: 1. working with clients. externships can assist students to gain a grasp of the importance of context. the capacities and constraints faced by clients become clearer; 2. acting in accordance with ethical and professional duties. externship experiences can enable the nature of these duties to be more clearly identified and understood with students offered frameworks and exemplars for effectively addressing such issues; 3. working with colleagues. externships can show students the importance of working with a supervisor and illustrate the challenges of such relationships. students can build their understanding of the dynamics of teamwork and responsibility in a legal workplace; 4. managing your own work and learning from experience. externships provide students with opportunities to structure their work as well as to understand and implement reflective practices. more recently shultz and zedeck conducted an empirical study and developed a list of twenty-six “lawyering effectiveness factors.” they encompass specifically legal skills as well as those capable of addressing broader dimensions of professional identity development.[footnoteref:44] they used a frame of “knowledge domains, general tasks, and skills and abilities,” classifying various specific legal skills as tasks while broader capacities were characterized as “skills and abilities.” [44: schultz & zedeck, supra note 15; kristen holmquist, marjorie shultz, sheldon zedeck and david oppenheimer, measuring merit: the shultz-zedeck research on law school admissions, 63 j. legal educ. 565, 577–787, n. 45 (2014). ] shultz and zedeck identified a series of factors that go beyond previous conceptions of the skills required of lawyers. the additional factors address both the personal (passion and engagement, diligence, creativity/innovation, stress management) and the professional (developing relationships within the legal profession, networking and business development, mentoring, community involvement and service). a recent book, building on best practices, identifies the following broad set of skills-focused learning outcomes for all externships: · “build lifelong commitment and the skills to learn in professional settings, including learning about learning; · engage in effective self-reflection that fosters learning from experience transferring those lessons to more complex problems and to other settings; · recognize and articulate the elements of problem-solving in the practice situation and display those elements in their legal work; · develop broad modes of ‘thinking like a lawyer’ using: · role-based legal analysis · narrative reasoning · ends-means thinking · using and building theory through contextual thinking · critical thinking · creative thinking · improve capacities to manage uncertainty, exercise judgment, and take action, especially widening the moving parts and unpredictability of real life.”[footnoteref:45] [45: carolyn wilkes kass with batt, bauman & schaffzin, experiential education: delivering effective education in externship programs, in building on best practices: transforming legal education in a changing world 216 (maranville, bliss, kaas & sedillo lópez, eds. 2016). ] this book goes on to identify other possible skills that could be acquired through externships: · “seek and receive timely and effective feedback and supervision, in order to improve future work product · engage peers for collaborative learning · develop skills associated with the human dimensions of practice; · understanding the perspective of another · interpersonal interaction · self-knowledge and self-regulation · communication and intercultural competence.”[footnoteref:46] [46: id. at 216–17.] another recent book also emphasizes the value of a broad conception of the skills required by lawyers. australian clinical legal education draws on the australian clinical best practices project referred to earlier, in identifying a set of potential learning outcomes for clinical courses in general and externships in particular, addressing a broad range of skills.[footnoteref:47] they include the more conventional “lawyering skills” as well as the broader framework of learning from experience and self-knowledge skills. while acknowledging the suitability of clinics for teaching students a broad range of skills, the authors emphasize the importance of analysis and reflection as well as taking opportunities to critique “the apparently value-neutral nature” of legal skills as part of the process of students developing “a consciousness of the value-laden nature of legal practice.”[footnoteref:48] they also highlight the role of the classroom component of externships and other clinic courses in “creating both the opportunity for comparative experiences and the challenge of finding common ground.”[footnoteref:49] [47: adrian evans, anna cody, anna copeland, jeff giddings, peter joy, mary anne noone, & simon rice, australian clinical legal education: designing and operating a best practice clinical program in an australian law school (2017) available at http://press.anu.edu.au/publications/australian-clinical-legal-education. ] [48: id. at 73.] [49: id. at 91.] as recent sources specifically focused on clinical legal education, these books provide valuable guidance for those considering the design and operation of extern-based clinical courses and skills that might be targeted for development through such experiences. b. aligning program design to learning outcomes the skills that will be developed in any given externship should be determined at the outset. some externship programs are “tailor-made” for each individual student and placement while others are “retail” operations in which regular placements offer similar skills acquisition opportunities to students, semester after semester. the methods used to ensure the student acquires the appropriate lawyering skills through an externship vary depending upon which approach is used. similarly, the roles of faculty supervisor and site supervisor will vary depending upon the structure of the program. 1. “tailor-made” externships in the tailor-made externship the faculty member consults with the student about the skills the student wishes to acquire, helps to arrange a placement that will allow the acquisition or development of those skills, consults with the placement supervisor as needed, and arranges for the student to be prepared to take advantage of that placement.[footnoteref:50] [50: see: liz ryan cole, lessons from a semester in practice, 1 clinical l. rev. 173, 175 (1994) and laurie barron & nancy m. stuart, charting your path to success—professional development planning, in lfp, supra note 2 at 15.] in tailor-made externships, student and faculty member should consider any instruction the student has already had in the relevant skills. in most cases the student will have completed a foundation course in legal research, reasoning, and writing and should be prepared for research and writing tasks. other students will have taken a trial advocacy course and be prepared to represent clients in court, or they will have completed a class in interviewing and counseling and be prepared to interact productively with clients. the externship experience can be more robustly focused on skills where the student is prepared by having taken simulation courses that have introduced the student to the theory and techniques for the skills at issue. in that situation, the site supervisor is not asked to teach these skills but rather to provide opportunities for the student to observe and practice these skills and provide feedback and critique to the student. likewise, the faculty supervisor typically sponsors the student’s reflection about his observations and performances to integrate the “doctrine, theory, skills and legal ethics.” in tailor-made externships where the student has not been introduced to the skills and theories about them through a simulation course, either the faculty supervisor or the field supervisor must structure opportunities for the student to learn them through directed self-study or more direct “teaching.” sometimes, the site supervisor will be the most qualified person to teach the relevant skills, particularly if the placement is quite specialized. in this case, the site supervisor will be selected with an eye toward this capacity and the plan for the externship should include this on-site instruction of both the techniques and the “concepts underlying” the relevant skills. alternatively, the faculty supervisor may be able to introduce the relevant skills. here is where the economies of scale, efficiency, and expertise come into play. the faculty supervisor may not be qualified to teach the full range of practice skills that all the externship students with tailor-made externships seek in a semester. or the faculty member may not have time to teach various tailor-made sets of skills to a large number of externship students. in either case the faculty member may lift out skills that are common to all externship students to include as learning goals for them all. skills that could apply to all externships include learning to learn from experience, interpersonal skills, self-awareness, teamwork, and workload management to name a few.[footnoteref:51] the faculty supervisor could efficiently include such skills in an accompanying classroom component for students at a wide variety of placements. [51: see learning from practice, supra note 2, for a comprehensive set of possible learning goals. the best practices australian clinical legal education contain a similar list of potential learning outcomes.] while focusing upon those skills that all externship students will develop is efficient, the classroom component may feel less engaging for some students who would prefer a focus that is more congruent with the particular lawyering skills they are developing in their placements. some have argued that “individual tutorials” or other approaches to “faculty-guided reflection”[footnoteref:52] are superior to a classroom component where extern placements are diverse.[footnoteref:53] [52: see aba standard 304, supra note 16. ] [53: erica eisinger, the externship class requirement: an idea whose time has passed, 10 clinical l. rev. 659 (2004). see also harriet n. katz, using faculty tutorials to foster externship students’ critical reflection, 5 clinical l. rev. 437 (1999).] 2. “retail” externships the alternative approach to externship programs is for the faculty member to develop a range of regular placements that will all offer similar experiences and opportunities to acquire a set of lawyering skills to all students, semester after semester.[footnoteref:54] for example, local prosecutor and public defender offices may all offer the opportunity to develop pre-trial, trial and strategic planning skills in criminal cases;[footnoteref:55] local legal aid offices may all offer the opportunity to develop interviewing and counseling skills with low-income clients. once the array of similar placements is established, students may be placed in any one of the participating sites to participate in an externship program with the advertised goals and methods. [54: see linda f. smith, designing an extern clinical program: or as you sow, so shall you reap, 5 clinical l. rev. 527, 539 (1999). ] [55: see linda f. smith, benefits of an integrated (prosecution & defense) criminal clinic, 74 miss. l. j. 1239 (2005).] with this approach the supervising faculty member could offer a skills-focused classroom component for the externship. there she could integrate “doctrine, theory, skills and legal ethics” that the students would all need in their similar placements. in a skills-focused class the faculty member could observe the “student’s performance” and provide “feedback” on the skills in order to enhance the students’ preparation for the placement work. [footnoteref:56] during the course of the externship the students’ reflections might focus upon the skills they are developing, and the faculty member could guide these reflections and provide further feedback. such reflections could involve class discussions as well as individual journals or papers. [56: see aba standards 304, supra note 16.] such a “retail” externship program offers certain advantages. the class may be appreciated by the students as it provides specialized skills instruction needed for the placement, and the students may be assigned more responsible roles in the placement if they are thus better prepared. the skills focus addresses the “quality control” problems alleged with externships in which students may be “just practicing mistakes” and may “accept supervisor (practitioner) advice uncritically.”[footnoteref:57] [57: robert condlin, learning from colleagues: a case study in the relationship between “academic” and “ecological” clinical legal education, 3 clinical l. rev. 337, 431 (1997).] it would not be necessary for site supervisors to teach the skills that had been covered in the classroom component. rather, site supervisors would be asked to give the students opportunities to observe and employ these skills and provide feedback about the students’ performances. the site supervisor could focus on the exercise of the skills in the particular context of the office’s work. the initial focus on lawyering skills also provides some assurance that the student will not take away bad lessons from the externship experience. the student will benefit by having learned the theories behind the skills, from having observed good models during class, and from having received professorial feedback. such a student is prepared to critique skills he observes that are inconsistent with the theories and models from class, and to theorize when and why performances might appropriately differ. ultimately the students must share their experiences and conclusions with the faculty supervisor to maximize their learning. condlin explains: [l]aw teachers need two types of information to review student practice experience critically: student conclusions about what they learned from the experiences, and trustworthy and detailed descriptions of what the students did.[footnoteref:58] [58: id. at 432.] where the faculty member and student engage in this descriptive and critical review, the necessity of selecting supervisors to teach and model the relevant skills with excellence will not be as important as in the tailor-made externships in which greater reliance is placed on the site supervisor to teach the specialized skills needed in the placement. iii. “values” while developing professional skills is a possible goal for externships, the aba standards’ seeming focus on “skills” as the raison d’etre for externships and other experiential courses risks the loss of other equally important goals that can be achieved through mediated externship experiences. live clinical experiences, and particularly externships, can be excellent opportunities for development of “professional identity, . . . professionalism, social responsibility, [and] ethics,”[footnoteref:59] the third element of legal education that the carnegie report identifies as needing development. we argue that the externship seminar or guided reflection should include substantial opportunities to explore these important values. however, we first note that the carnegie report and other sources typically conflate different concepts into the call for the development of “professionalism.” [59: sullivan et al., supra note 62, at 12-14] two distinct endeavors should be considered here. the first is the micro goal of the student’s development of a professional identity. this can range from gaining an applied understanding of the rules of professional conduct, to consciously developing habits and practices that are consistent with being a responsible professional, to integrating one’s personal morality and vision into one’s identity as an attorney, to acquiring a motivation to seek social justice. the second is the macro goal of engaging in institutional critique. this occurs when “substantive doctrine” is combined with “field work experience” and “the policy considerations implicated in legal doctrine.”[footnoteref:60] robert condlin was the first to contend that “political critique is the most important clinical objective. . . . the ability to judge day-to-day practice against objective standards of justice and fairness is an essential quality of a good citizen and a good lawyer.”[footnoteref:61] institutional critique may well lead to an appreciation for social justice, but it may be sufficient that students develop the habit of questioning and critiquing the status quo that they encounter. externships offer an especially rich opportunity to engage in institutional critique because the law student is placed in an actual community agency or law office and because the case work supervision is separate from the faculty member’s supervision of the student’s learning.[footnoteref:62] [60: carrie menkel-meadow, the legacy of clinical legal education: theories about lawyering 29 clev. st. l. rev. 555, 571-72 (1980).] [61: robert condlin, “tastes great less filling”: the law school clinic and political critique, 36 j. legal educ. 45, 50-51 (1986).] [62: id. at 53-55.] part iii.a below reviews authorities that recommend focusing upon these values, noting that they fail to differentiate the micro goal of professional identity formation and the macro goal of institutional critique. part iii.b discusses methods for exploring these two different but related goals. a. defining values goals in legal education commentators more than regulators have called for more explicit and effective integration of values into legal education. the maccrate report not only recommended teaching a set of lawyering skills, it also recognized that law students should acquire a set of important professional values.[footnoteref:63] “the analysis of professional values recognizes that ‘training in professional responsibility’ should involve more than ‘just the specifics of the code of professional responsibility and the model rules of professional conduct’; it should encompass ‘the values of a professional dealing with the lives and affairs of clients.’”[footnoteref:64] the four values that the maccrate report identifies are [63: maccrate report, supra note 36.] [64: maccrate report, supra note 36, at 135, citing robert b. mckay, what law schools can and should do (and sometimes do), 30 n.y.l. sch. l. rev. 491, at 509-10. ] “the value of competent representation, analyzing the ideals to which a lawyer should be committed as a member of a professional dedicated to the service of clients, . . . the value of striving to promote justice, fairness, and morality; . . . the value of striving to improve the profession; . . . [and] the value of professional self-development. . . .”[footnoteref:65] [65: id. at 136.] the carnegie report discusses[footnoteref:66] “professional identity and purpose” by referencing the preamble to the model rules (see discussion below) and a 1996 report from the aba, quoting: [66: see william m. sullivan, anne colby, judith welch wegner, lloyd bond, lee s. shulman, educating lawyers: preparation for the practice of law (2007). ] a professional lawyer is an expert in law pursuing a learned art in service to clients and in the spirit of public service; and engaging in these pursuits as part of a common calling to promote justice and public good.[footnoteref:67] [67: professionalism committee of the american bar association’s section of legal education and admissions to the bar, report 1996, at 6. ] considering both sources, the carnegie report concludes they put forth “a demanding ideal of legal professionalism”: they describe the lawyer as expert in legal thinking and practice, while committed to service of both clients and the welfare of the larger community that is organized by the legal order.[footnoteref:68] [68: sullivan, supra note 62, at 125.] the 2007 american best practices for legal education book defines “professionalism” as “appropriate behaviors and integrity in a range of situations; the capacity to deal sensitively and effectively with clients, colleagues, and others from a range of social, economic, and ethnic backgrounds, identifying and responding positively and appropriately to issues of culture and disability that might affect communication techniques and influence a client’s objectives.”[footnoteref:69] they then discuss five professional values that they believe “deserve special attention during law school: a commitment to justice; respect for the rule of law; honor, integrity, fair play, truthfulness and candor; sensitivity and effectiveness with diverse clients and colleagues; and nurturing quality of life.”[footnoteref:70] [69: stuckey, supra note 4, at 79] [70: id. at 84 and 84–91.] the related 2015 building upon best practices book also addresses professional values and opines that the following “learning outcomes in the professionalism sphere should apply to all externship students: · articulate the concept of professional identity and develop their own facets of professional identity; · exercise responsibility, responsibly; and · perform ethically with attentiveness to all relevant rules of professional conduct and self-awareness.”[footnoteref:71] [71: maranville et al., supra note 39, at 226-27 ] this book goes on to suggest other optional professionalism-related goals for externs: · “practice with purpose; · integrate personal and professional identities; · connect with and serve clients while respecting dual loyalty to the profession; · recognize and articulate the elements of competent practice, and how knowledge, skill, and values are woven together in service of a client or cause; · identify the fundamental values of the legal profession and recognize the presence or absence of those values in practice situations; or · articulate the role of lawyers and identify changes to the profession that are occurring in the particular setting.”[footnoteref:72] [72: id.] the australian best practices report identifies a set of potential learning outcomes from clinical courses that speak to professionalism rather than to skills: · an understanding of continuing professional development and a desire for life-long self-learning; . . . . · an awareness of lawyering as a professional role in the context of wider society (including the imperatives of corporate social responsibility, social justice and the provision of legal services to those unable to afford them) and of the importance of professional relationships; · a developing personal sense of responsibility, resilience, confidence, self-esteem and, particularly, judgment; · a consciousness of multi-disciplinary approaches to clients’ dilemmas –including recognition of the non-legal aspects of clients’ problems; · a developing preference for an ethical approach and an understanding of the impact of that preference in exercising professional judgment; · a consolidated body of substantive legal knowledge, and knowledge of professional conduct rules and ethical practice; and · an awareness of the social issues of justice, power and disadvantage and an ability to critically analyse entrenched issues of justice in the legal system[footnoteref:73]: [73: evans et. al, supra note 25, at 11. ] the codes or canons of ethics provide a further frame for the values that law students should acquire. the preamble to the american bar association model rules of professional conduct teaches us that a lawyer’s job is three-fold: “a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice.”[footnoteref:74] the australian solicitors conduct rules provide that a solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.[footnoteref:75] [74: model rules of prof’l conduct preamble [1] (am. bar ass’n 1983) (emphasis added).] [75: australian solicitors conduct rules r.3 (law council of australia 2015), https://www.lawcouncil.asn.au/files/web-pdf/aus_solicitors_conduct_rules.pdf.] the aba preamble provides this discussion of the lawyer’s role as public citizen: “as a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession.”[footnoteref:76] here the preamble seeks “improvement” in four important areas. it does not surface any likely conflict between the role of “public citizen” and the role of client representative, but states: “as a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education.”[footnoteref:77] the public citizen role includes the role of community educator: “in addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”[footnoteref:78] however, this public educator function does not suggest the attorney should be an apologist for a flawed system. to the contrary: “a lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel.”[footnoteref:79] note that the preamble does not just call for “pro bono services”[footnoteref:80] to address unmet legal needs, but instead enjoins us to “use civic influence” to address this problem and to employ our knowledge “in reform of the law.” this section of the preamble concludes: “a lawyer should aid the legal profession in pursuing these objectives . . . .”[footnoteref:81] [76: model rules of prof’l conduct preamble [6] (am. bar ass’n 1983) ] [77: id.] [78: id. ] [79: id. ] [80: see rule 6.1, that states “every lawyer has a professional responsibility to provide legal services to those unable to pay.” model rules of prof’l conduct (am. bar ass’n 1983)] [81: id. preamble [9].] the “professionalism” and “values” discussed by these various authorities combine both “micro” values dealing with the attorney’s personal development and “macro” values dealing with institutional critique and the bar’s professional responsibility to society. of course, the bar’s responsibilities to society to advance justice should also be incorporated into the attorney’s personal development and personal identity. however, in identifying goals for an externship program, we believe that professional identity development and institutional critique should be pursued separately before linking them and exploring the individual attorney’s role as “public citizen.” b. micro & macro exploration of values: an alternative way of thinking about learning objectives because “professionalism” and “values” includes both micro values of professional identity formation and macro values of institutional critique, social justice and the public citizen role with a special responsibility for the quality of justice, it is useful to discuss separately the methods that are well suited to the pursuit of each of these two separate goals. 1. professional identity formation the american best practices book suggests that “practice observation courses” might accompany externships to provide “a forum for studying the values, behaviors, attitudes, and ethical requirements of lawyers (professionalism).”[footnoteref:82] the authors suggest that externships offer a superior vehicle for such study, as the student is immersed in an actual functioning law office or judicial chambers rather than an in-house clinic that may not accurately replicate such a setting. moreover, the teaching role is disaggregated from the supervision role, so that faculty member can objectively respond to and guide the student’s reactions to and critique of practice. [82: stuckey, supra note 4, at 198.] using the student’s externship experiences to explore the student’s formation of a professional identity is widely appreciated in the externship literature. the learning from practice text’s 2016 third edition includes a chapter on professional identity formation that urges students to be intentional about becoming both skilled and ethical attorneys. [footnoteref:83] it suggests that “observation, practice and reflection” during the externship can support the development of good professional habits. the authors argue that knowing the ethical rules is not enough; the student should also develop ethical sensitivity (involving empathy), ethical motivation (the importance given to ethical values in competition with other values), and ethical implementation (having the courage to do the right thing). the authors also contend that the extern should endeavor to weave together his personal identity and professional identity, to have a psychologically healthy career. this chapter provides exercises such as rereading one’s law school admission essay or imaging one’s life in 15 years, in order to encourage the student to form an integrated identity. [83: daisy hurst floyd & timothy w. floyd, professional identity formation, in lfp, supra note2, at 685. ] the learning from practice text includes other chapters that relate to professional identity formation: charting your path to success—professional development planning,[footnoteref:84] externships and career development[footnoteref:85] and on finishing strong: looking back and looking forward.[footnoteref:86] there are also five chapters that cover professionalism and particular ethical issues: professionalism,[footnoteref:87] ethical issues in externships: an introduction,[footnoteref:88] ethical issues in externships: confidentiality,[footnoteref:89] ethical issues in externships: conflicts of interest,[footnoteref:90] ethical issues in externships: duties to tribunals and third parties.[footnoteref:91] the text further provides chapters that deal with particular practice settings (judicial, criminal, public interest, public service, and transactional), permitting an exploration of ethics particular to these settings and identity formation related to different practice contexts.[footnoteref:92] [84: laurie barron & nancy m. stewart, charting your path to success—professional development planning, in lfp, supra note 2, at 15.] [85: avis l. sanders, externships and career development, in lfp, supra note 2, at 725.] [86: susan l. brooks & alexander scherr, on finishing strong: looking back and looking forward, in lfp, supra note 2, at 799.] [87: nancy maurer, professionalism, in lfp, supra note 2, at 237.] [88: lisa g. lerman & lisa v. martin, ethical issues in externships: an introduction in lfp, supra note 2, at 261.] [89: alexis anderson, ethical issues in externships: confidentiality in lfp, supra note 2, at 279.] [90: cindy r. slade, ethical issues in externships: conflicts of interest in lfp, supra note 2, at 295.] [91: lisa g. lerman & lisa v. martin, ethical issues in externships: duties to tribunals and third parties, in lfp, supra note 2, at 335.] [92: mariana hogan & michael h. roffer, judicial externships, in lfp, id. at 489; russell gabriel & hans p. sinha, criminal justice law placements, in lfp, supra note 2, at 559; susan b. schechter & jeffrey r. baker, public interest lawyering, lfp, supra note 2, at 605; jeffrey r. baker & susan b. schechter, public service lawyering, in lfp, supra note 2, at 627; ann vessels, stacey bowers, & mark popielarski, transactional lawyering in lfp, supra note 2,at 645.] while this text regularly encourages dialogue with the site supervisors, the overarching plan appears to be having this text provide the frame for the students’ reflections and for the faculty supervisor to support that reflection to advance the students’ professional identity formation. where professional identity formation is a primary goal of the externship, it seems important that the student have substantial responsibility for selecting the externship site. this will ensure that the site is congruent with each student’s visions of his professional path. similarly, the law school should ensure that the site supervisor not only has relevant skills but the professional character that would constitute a good role model for the student. if such vetting takes place, the site supervisor would also be well positioned to reflect with the student about the ethical values that are required for success in the particular legal practice area. one issue that often arises is the students’ notions of how an attorney in an area of practice is “supposed” to act or what attitudes he must have. for example, “many student prosecutors believe that a good prosecutor must always go for ‘the max’ and that all defenders are bleeding-hearts who naively and unfailingly believe clients’ stories and excuses.”[footnoteref:93] one can work through this notion by analyzing mock cases together with guest speakers and see that experienced practitioners from both sides often view these cases in the same way.[footnoteref:94] readings on “prosecutorial discretion and defense ‘ethics’ . . . encourage students to appreciate that they have the right to define for themselves the role they will play and the moral justifications they will develop as a prosecutor or defender in the criminal justice system.”[footnoteref:95] class discussion should move from theory to feelings in practice: “students are asked to consider what frustrations they have experienced in dealing with ‘the other side’ or with ‘the system,’ whether they had any preconceived notions about their own role and what difficulties they have faced in assuming the role.”[footnoteref:96] [93: smith, supra note 51 at 1256. see also russell gabriel & hans p. sinha, criminal justice law placements, in lfp, supra note 88 at 559; and the accompanying teacher’s manual chapter, both co-written by clinical teachers from prosecution and defense backgrounds, teacher’s manual to learning from practice:  a text for experiential legal education 685 (leah wortham et al. eds., 3d ed., 2016), https://www.dropbox.com/s/5ruigomhtpguugf/learning%20from%20practice%2c%20teacher%27s%20manual%20-%203rd%20edition.pdf?dl=0.] [94: smith, supra note 51, at 1256.] [95: id. at 1256-57.] [96: id. at 1257.] another issue that may arise is the student’s desire to stay true to her own values. sometimes this suggests the student seek a practice setting that supports and comports with his values. externs might be asked to “audit”[footnoteref:97] their placement by considering the placement’s mission, whether the mission is integrated into the daily work of the organization, and how the mission serves the needs of the organization’s stakeholders. student “audits” can also consider the rapport within the organization, how stress is managed and success is defined, and how work-life balance in addressed.[footnoteref:98] [97: thanks for these ideas and for the “placement audit” exercise are due to inga laurent.] [98: id.] at other times, the extern may realize that some of her important values may be challenged by issues that arise in the organization. accordingly, the extern seminar may wish to address behavioral ethics such as those presented in the giving voice to values (gvv) curriculum.[footnoteref:99] this curriculum, developed for the business school setting, addresses what one can do when she knows the right thing to do, but faces situational or environmental pressure against doing what is right. vivien holmes writes of having integrated these concepts into the professional practice core course at australian national university to help students “develop their own ethical, professional identity.”[footnoteref:100] in this program students face ethical challenges and are asked to develop a gvv approach to voice their concerns while considering several factors. study of this curriculum gives early results that it helps students develop valuable ethical skills.[footnoteref:101] [99: mary c. gentile, giving voice to values: how to speak your mind when you know what’s right (2010).] [100: vivien holmes, ‘giving voice to values’: enhancing students’ capacity to cope with ethical challenges in legal practice, 18 legal ethics 115, 129 (2015).] [101: id. at 133-36.] finally, it behooves the externship faculty member to raise issues of the stresses of legal practice and strategies to avoid burn-out and confront challenges such as secondary trauma. there are today numerous sources for such inquiry including various articles,[footnoteref:102] web resources,[footnoteref:103] and these books: [102: see, e.g., dianne molvi, the toll of trauma 84 wis. law, dec. 2011, at 4, http://www.wisbar.org/newspublications/wisconsinlawyer/pages/article.aspx?volume=84&issue=12&articleid=2356 (exploring a study of public defenders and “compassion fatigue”). ] [103: see, e.g., http://www.nctsn.org/resources/topics/secondary-traumatic-stress, and http://www.childtraumaacademy.com/surviving_childhood/index.html ] · susan daicoff, lawyer, know thyself: a psychological analysis of personality strengths and weaknesses (2004); · marjorie a. silver, affective assistance of counsel: practicing law as a healing profession (2007); · nancy levit & douglas o. linder, the happy lawyer: making a good life in the law (2010); · douglas o. linder & nancy levit, the good lawyer: seeking quality in the practice of law (2014); · cary cherniss, beyond burnout: helping teachers, nurses, therapists, and lawyers recover from stress and disillusionment (1995). in some instances, the students themselves will be dealing with traumatizing cases, and they will need this guidance in order to have a healthy clinical experience. in other cases, students may be encouraged to observe how their supervisors and others deal with the stresses of practice. in sum, externs are socialized to the practice of law through the externship experience. it is far preferable that this be intentional learning rather than incidental learning. accordingly, it should be incumbent upon the externship program to include relevant readings and reflection opportunities regarding the student’s professional identity formation. 2. critique & improvement of the law & legal system the best practices book notes that “some externships also provide excellent opportunities to study and learn about the functioning of the legal system and its capacities and limitations. it is especially important for students to study issues of justice in our society and to learn to appreciate the importance of the rule of law for ensuring justice to all members of society.”[footnoteref:104] [104: stuckey, supra note 4 at 199.] there will be many placements in which the student will be confronted with issues about the “quality of justice” by the nature of the day-to-day experience. these include criminal defense and prosecution offices, legal aid offices, and the courts. the judicial extern may be exposed to pro se parties or parties represented by less-than-adequate attorneys,[footnoteref:105] and benefit by reflecting upon topics ranging from access to legal counsel, to the adversary system, to how judges should deal with inequities. students externing in the criminal justice system may encounter the economic pressure to plea bargain, the extensive discretion possessed by the prosecutor, the challenge to prosecutors in negotiating fairly with unrepresented defendants, the collateral consequences of conviction, and drug cases for which the criminal justice system may seem ill-suited.[footnoteref:106] students placed in legal aid offices may encounter the poor, persons with disabilities, persons of color, and individuals from other cultures speaking other languages. they may also encounter bureaucracies from housing courts to welfare offices and opposing parties such as pay-day lenders. [105: see, e.g., linda f. smith, the judicial clinic: theory and method in a live laboratory of law, 1993 utah l. rev. 429, 464, 468 (1993).] [106: see, e.g., smith, criminal law clinic, supra note 51, at 1261-79.] if the faculty supervisor knows that the students will encounter such issues about the quality of justice, then it is wise to include readings and discussion topics on them. the learning from practice text includes institutional critique in several of the chapters dealing with particular practice areas, such as criminal defense. including such readings and discussion topics establishes that exploring these issues and the lawyer’s public citizen role is one of the goals of the externship. in other placements, issues of the quality of justice may not arise so apparently. one can imagine that students externing at various governmental agencies or in-house counsel offices may well not encounter issues of power imbalance or aspects of the law that seem “unjust.” in that case, the program will likely be unable to have instilling appreciation for social justice as a significant goal. but in that case, should the program also leave aside “institutional critique” as a goal? there are two arguments why institutional critique should nevertheless be included as one of the programmatic goals. first, even if the extern does not directly address issues of poverty and quality of justice, the student can be encouraged to study the institutions she encounters or in which she is placed with an eye toward “improvement of the law . . . and the administration of justice.” no matter where the student is placed, he can be encouraged to ask critical questions about the law and the procedures and the practices he confronts. some field supervisors will not encourage that inquiry, but others may welcome a fresh set of ears to share their frustrations with foolish laws or time-wasting procedures they face in their practices.[footnoteref:107] all institutional critique need not proceed from the perspective of the disempowered; it is enough that the student begin to incorporate a critical eye and an attitude to “reform the law” when he encounters problems that should be corrected. [107: in an empirical study of australian placement supervisors (both externships and clinics), giddings identified a small group of supervisors who do not identify and address the social justice issues raised by the matters students work on. see jeff giddings, supporting social justice through student supervision practices, in social justice and legal education, (chris ashford & paul mckeown, eds., forthcoming 2017). ] the second reason to include institutional critique in the classroom component linked to an externship is relevant when students are engaged in different types of placements and practices. the student enjoying sufficient time to do thorough and detailed work in the in-house counsel office or governmental agency will benefit from hearing the legal defender externs discuss pressures to plea-bargain because of inadequate resources and the legal aid extern discuss the fact that many clients get only limited scope services. thus, the class will be able to explore differentials in the quality of justice they encounter. nevertheless, including institutional critique must be done with care for a number of reasons. first, we are asking the placement supervisor to teach and oversee the student, and we are asking the student to respect and learn from the supervisor. accordingly, it will be dysfunctional to present criticism that the student would understand as being levied against her supervisor or placement. instead, the faculty supervisor should simply introduce topics, concepts and readings that raise the relevant critical issues. the faculty member can recognize the reality of institutional challenges and pressures. the student should understand his role as not only a student learning from the supervisor but also a participant-observer in an anthropological quest to learn from the supervisor and the placement. students will bring their own attitudes and beliefs to the placement. sometimes these attitudes and beliefs will be entirely congruent with critiquing the law and practices she encounters. for this student, including institutional critique will give the student permission to engage in this endeavor. but this student must be pushed to do the additional readings and analysis, not simply react. other times the student will have attitudes that are not sympathetic toward the disempowered clients she encounters; she will be frustrated with legal aid clients who are so “ungrateful” that they miss appointments and victims of domestic violence who ask to dismiss the protective orders. the faculty supervisor cannot ask a student to deny the feelings she has but can provide this student with readings about poverty and domestic violence, which should provide context for the client’s actions. the faculty supervisor can also encourage the student to ask her site supervisor about whether he has similar feelings and how he deals with them. in this way, the student moves from emotional reaction to critical perspective. finally, some students may be overwhelmed or shocked by some of the practices they encounter. these students need a sounding board for their reactions so that they can consider how to deal with the stresses of practice and think about how their experiences can be integrated in development of positive professional identities. but they also should be encouraged to study the aspects of the practice that are concerning with an eye toward improving the law or the administration of justice so that it is more just and effective. including institutional critique in the externship seminar will be responsive to the desires of many of the students to better understand the institutions, practices, and law they encounter and will establish the practice of assuming the public citizen role as one of the fundamental aspects of the lawyer’s identity. conclusion we have explored the risks and rewards of designing and teaching in an externship program, the goals one might have, and the methods one might use. we have argued that it is important to pay attention to the principles of intentional design when developing an externship program. in particular, we have identified and challenged the assumption that skills development must be the predominant goal for externships. this is a common assumption on the part of legal education regulators in our respective home countries, the usa and australia, as well as in england and wales. skills development can, but does not have to, be a focus for every externship. if it is to be a focus, the targeted skills should be articulated as clearly and specifically as possible. students must learn the theory and methods behind the skills to be used in the placement, either through appropriate pre-requisites, a skills-focused classroom component, or a clear understanding that the placement supervisor will be able to impart both the relevant theory and methods. then the reflection component also must be designed to enhance students’ acquisition of the identified skills. we have explored how this can be done with either the “tailor-made” or the “retail” externship structure. however, we believe the regulatory focus on skills has obscured the important values that can be acquired through a well-designed and well-taught externship. commentators have identified both skills and professionalism as lacking in legal education. externships have special advantages in terms of their suitability for development of professional identity and for institutional critique--the micro and the macro aspects of professionalism. by definition, externships are in the “real world. students are able to try out a professional identity and to study the ways in which their supervisors enact the lawyering role. this provides fruitful material for reflection which the faculty instructor should facilitate. the emotional and analytical distance between the teacher at the law school and the day-to-day supervisor also should facilitate critical inquiry into the institutions the student encounters. this inquiry may include social justice concerns and explore how the lawyer as public citizen might address these problems. this alternative frame of professionalism—both the micro personal identity, and the macro institutional critique aspects of professionalism— is a rich and important goal, we argue, that extern programs ought to seek. 31 reviewed article: research and impact measuring the impact of social justice teaching: research design and oversight lisa radtke bliss, sylvia b. caley and leslie e. wolf* georgia state university, usa introduction research and the production of scholarship is a fundamental part of being a legal academic. such endeavors identify issues and answer questions that further understanding of the law, the profession, and the justice system itself. research and scholarship in the legal academy traditionally meant the study of law and legal theory. a growing body of legal academics are focusing research and scholarship on legal education itself, as well as research that measures the impact of legal education. the impact of clinical legal education on students’ development of practical and professional skills, as well as the impact on communities that clinics serve are important areas of scholarly inquiry.[footnoteref:2] this article explores how thoughtfully designed research projects can measure the impact of social justice teaching, using examples and experience gleaned from the evaluation and research component of a medical legal partnership[footnoteref:3] and its affiliated law school clinic. the article examines principles of good research design, the art of formulating research questions, and the potential uses for resulting data. it also identifies critical steps and issues to consider when developing a research project. [2: *lisa radtke bliss is associate dean of experiential education, clinical professor of law, and co-director of the health law partnership legal services clinic at georgia state university college of law. sylvia b. caley is clinical professor of law, co-director of the health law partnership legal services clinic and director of the health law partnership. leslie e. wolf is professor of law and director of the center for law, health & society at georgia state university college of law, with a joint appointment in the school of public health. see, e.g., jeanne charn & jeffrey selbin, the clinic lab office, 2013 wis. l. rev. 145 (2013); steven hartwell, promoting moral development through experiential teaching, 1 clinical l. rev. 505 (1995); stefan h. krieger, the effect of clinical education on law student reasoning: an empirical study, 35 wm. mitchell l. rev. 359 (2008); margaret e. reuter & joanne ingham, the practice value of experiential legal education: an examination of enrollment patterns, course intensity, and career relevance, 22 clinical l. rev. 181 (2015); rebecca sandefur & jeffrey selbin, the clinic effect, 16 clinical l. rev. 57 (2009).] [3: medical legal partnership brings together legal and health care providers to holistically address the socio-economic barriers to health. for more information on medical-legal partnerships and the need for such partnerships, see the need for medical-legal partnership, nat’l ctr. for med.-legal partnership, http://medical-legalpartnership.org/need (last visited aug. 31, 2016).] part i explains the reasons that engaging in research is a useful, and increasingly necessary, method of measuring the effectiveness and impact of clinical legal education and social justice teaching, and the ways research informs approaches to teaching and client service. it also describes a medical legal partnership (hereinafter “mlp”) known as the health law partnership (hereinafter “the partnership”),[footnoteref:4] and the health law partnership legal services clinic (hereinafter “the partnership clinic”)[footnoteref:5] at the university law school (hereinafter “the university”) and the design and evolution of the research and evaluation component of this project. part ii describes the special needs and concerns that governed the approach to designing and implementing an effective evaluation tool in this context. part iii turns to fundamental principles of research. it identifies important steps to take when establishing a research project, and issues that researchers must confront in doing so, including ethical implications and the need for adherence to international principles of ethical research, as well as university regulations and guidelines. finally, the article concludes with reflections on the partnership research project and advice for those considering engaging in similar research, particularly those who wish to evaluate the impact of clinical legal education and justice education. [4: the health law partnership (“the partnership”) is a community collaboration among the university, the legal aid society, and children’s healthcare of city. for the components of the partnership, see infra part i. for more information, see the partnership l. , https://healthlawpartnership.org (last visited aug. 31, 2016).] [5: the partnership legal services clinic, uni. st. u.c.l., http://law.uni.edu/clinics/the partnership-legal-services-clinic (last visited aug. 31, 2016).] part i – why engage in research and evaluation? this section explains the reasons that engaging in research and evaluation is increasingly important to law clinics and the benefits to be gained from engaging in research. it argues that clinical educators must not only engage in the rigorous self-evaluation that we ask of our students, but that we must also prioritize evaluation of the impact of our work for several reasons. primary among those reasons is to ensure we are accomplishing our educational goals and objectives. from the inception of the partnership and the partnership clinic, we committed to a robust research and evaluation agenda. our work over the last decade informed our understanding of the importance and challenges of conducting this kind of research. because we draw on these experiences, we provide a brief description of the development of the partnership project and its research agenda before moving to the broader questions of why and how to measure the impact of education, services, and other activities. a. designing the partnership project components and evaluation and research conceptualizing and developing the partnership took place over a protracted period. from the outset, the legal partners, leaders from the legal aid society[footnoteref:6] (“hereinafter las”) and the university were firmly committed to building a partnership between law and medicine in city. it took more than a decade to find the right and willing medical partner. while they searched for the right medical partner, the legal partners built a strong trust relationship and cemented the goals each wanted to achieve from a collaboration specifically designed to combine the expertise of health providers and lawyers to provide more holistic services to low-income health consumers. the overarching goals they identified were to improve health care outcomes for low-income patients while also preparing graduate students in law, medicine, and related health professions to be better problem-solvers. the legal partners recognized that the project needed to include evaluation and research components to assure that goals were met. [6: the legal aid society helps low-income people meet basic needs by providing free legal services and legal education. the organization services clients throughout the metro area. for more information, see legal aid soc’y, http://www.citylegalaid.org/ (last visited aug. 31, 2016).] when children’s healthcare of city[footnoteref:7] (hereinafter “children’s”) agreed to join and create the health law partnership, faculty at the university secured the services of an independent program evaluator to assist in developing metrics targeted at determining whether goals were met. the partners, along with assistance from the program evaluator, developed the following program areas for the partnership: (1) delivery of direct legal services to low-income children and their families receiving health care services at children’s,[footnoteref:8] (2) providing education on two planes: (a) to hospital professionals to familiarize them with the effects social determinants have on health and how the partnership could assist in addressing health-harming legal needs, and (b) to professional and graduate students in law, medicine, and social work to enhance their education in effective interprofessional collaboration, holistic problem-solving, addressing the social determinants of health, and overall skills development, and (3) engaging in systemic advocacy to address population health issues.[footnoteref:9] because so much emphasis was placed on the importance and role of program evaluation and research, the partners agreed to create a fourth program area of research and evaluation to place these functions on equal footing with the other three programmatic components. once the partners had a vision for the function, the services, and the role for each of the programmatic components, the team set out to develop tools to facilitate data collection and analysis. [7: children’s healthcare of city, a non-profit pediatric health system, is the largest provider of healthcare services to children in state. children’s has 3 hospitals, 27 neighborhood locations, and handles more than 870,000 patient visits annually. children’s offers access to more than 60 pediatric specialties and programs and is ranked among the top children’s hospitals in the country by u.s. news & world report. for more information, see children’s healthcare city, http://www.choa.org (last visited aug. 31, 2016).] [8: “public health legal services” are civil legal services provided by attorneys to low-income persons that, collectively, improve population health. d. schulman et al., public health legal services: a new vision, 15 geo. j. on poverty l. & pol’y 729, 732–33 (2008). public health legal services are provided to the partnership clients either through the partnership clinic at the university or by partnership staff attorneys employed by las. ] [9: a full explanation of the development and design of the health law partnership and its four components is beyond the scope of this article. for details about the project and its four components, including the delivery of public health legal services, education in the form of professional graduate education, in-service education, systemic advocacy and its public health impact, and program evaluation, research, and scholarship, see robert pettignano, lisa radtke bliss & sylvia caley, the health law partnership: a medical-legal partnership strategically designed to provide a coordinated approach to public health legal services, education, advocacy, evaluation, research and scholarship, 35 j. legal med. 57, 57–79 (2014). ] 1. evaluating legal services and health provider satisfaction the first component to be developed was the delivery of direct services. the partners focused on decisions regarding a list of parameters and priorities: · establishing clients’ financial eligibility for free legal services · determining how clients would be referred to the partnership · developing a plan to capture data on provider referral practices to the partnership · establishing the geographic location of children to be served · identifying the types of legal services to provide to children and families · identifying clients having types of diagnoses who might be prioritized for legal service · determining how to capture data on all clients referred for free legal services · identifying, quantifying, and describing benefits received by children and families as a result of the free legal services to be provided · determining how to prove that the services provided by the partnership contributed to improved health outcomes for the children served · developing a plan to educate health providers to identify and refer eligible children and families for free legal services using these parameters and priorities as a guide, the team determined the important data points and then developed a lengthy intake questionnaire designed to capture them. the program evaluator and staff built a customized data base to capture all data elements associated with clients’ experiences with the partnership and developed uniform procedures for interviewing clients to reduce errors, encourage uniformity, and minimize bias.[footnoteref:10] [10: staff attorneys serving clients were trained in how to collect the information on the intake questionnaire. only one person, the partnership’s office manager, entered all data elements into the database to ensure any errors which occurred would at least be uniform errors.] in addition to the intake questionnaire, the team developed a pre and post survey to be given to the parents/guardians of all children referred to the partnership for legal services. the pre-survey questions aimed to gather information regarding the parents/guardians perceptions of their own physical health, emotional health, financial well-being, and overall well-being and that of their children. the post survey explored these same areas in order to determine whether there was improvement in self-reported status. the survey also asked whether the parents/guardians felt better equipped to deal with similar problems, at least initially, should they arise in the future. all instruments, including the intake questionnaires and the surveys, received institutional review board (irb) approval at the university.[footnoteref:11] while all children and families determined to be eligible for free legal services at the partnership had the opportunity to participate in the research study, families received partnership services regardless of their decision to participate or not to participate in the study. participating families were required to provide informed consent prior to their enrollment in the study. all faculty and staff associated with the partnership underwent training in human subject research through the collaborative institutional training initiative.[footnoteref:12] [11: institutional review board approval is just one part of the legal and ethical requirements for undertaking human subject research. for further discussion, see infra part iii.] [12: collaborative institutional training initiative, https://www.citiprogram.org (last visited aug. 31, 2016).] in addition to evaluating the benefits of providing free legal services to low-income children with the hope of improving their health outcomes and those of their parents/guardians, the partnership also wanted to evaluate the experiences of providers when referring clients to the partnership. again, an irb-approved survey instrument was developed to assess the providers’ satisfaction with both the ease of referral and the receipt of feedback from the partnership. in addition, survey questions inquired whether referral to the partnership freed providers to handle matters more within the provider’s scope of practice, and whether the provider perceived that referral of a child or family to the partnership resulted in any reduction in preventable visits to the emergency department, reduced the length of hospitalization, or reduced readmissions to the hospital. the program evaluator distributes the provider survey once annually to all attending physicians, residents, and social workers. data collected from the surveys have contributed both to program improvement and to publications.[footnoteref:13] [13: see, e.g., robert pettignano, sylvia caley & susan mclaren, the health law partnership: adding a lawyer to the healthcare team reduces system costs and improves provider satisfaction, j. pub. health mgmt. & prac., july–aug. 2012, at e1.] 2. the partnership clinic and education for law, medical and other professional students experience gleaned from providing free legal services for the purpose of resolving health-harming legal problems, coupled with data on successful outcomes, built credibility for the partnership, strengthened the partnership, and created general interest in the concept of mlp. the partners wanted to develop the second component of the partnership, education of professional graduate students. development of this component, however, required fund-raising for adequate financial resources to build an in-house clinic at the law school. the data, experiences, and descriptive reports outlining the positive results obtained in the legal services component, along with the evident commitment of the partners, encouraged a major local donor to contribute the funds necessary to develop the partnership clinic. using the same principle applied to the legal services component and the evaluation of provider satisfaction, the partners developed irb-approved instruments to assess learners’ experiences with the enterprise. the first instrument, which remains in use, is a qualitative post-experience survey originally designed for law students. perhaps the most significant question on this particular survey asks whether the learners will engage in public interest activities in their professional careers. while faculty in the partnership clinic hold no expectations that students enrolled in the clinic will become public interest lawyers upon graduation, the hope is that students will be aware from their experiences in the partnership clinic of the negative effects disparity and inequity have on individuals and communities. when lawyers become aware of social injustice and of impediments to access to equal justice and decide to volunteer time and resources, change can happen and injustices can be ameliorated. our proxy for determining our success in motivating students to get involved in addressing social justice is to ask about their intentions. four years ago, the partnership clinic faculty decided to develop a qualitative survey to evaluate attainment of key values associated with interprofessional clinical legal education.[footnoteref:14] in developing the instrument, faculty interviewed students, met with educational testing experts, held many working sessions, and tested the instrument on two classes of students completing their semester in the clinic. the instrument remains a work in progress, but the plan is to develop and implement a useful instrument as a first step in developing a longitudinal study to include current students and program graduates. preliminary information gleaned from this instrument will help to inform whether the goals of the education component are being met and, as necessary, how and where to make adjustments in the curriculum to achieve goals that remain elusive. [14: see linda morton et al., teaching interdisciplinary collaboration: theory, practice, and assessment, 13 quinnipiac health l.j. 175, 193–196 (2010); janet weinstein & linda morton, interdisciplinary problem solving courses as a context for nurturing intrinsic values, 13 clinical l. rev. 839, 862–64 (2007). ] the partnership has conducted other research projects focused on medical learners specifically. two different studies have been underway for several years to evaluate changes in awareness and attitudes by medical students and pediatric residents following prescribed exposures to the partnership and an educational curriculum focusing on the social determinants of health. additional work is underway, in collaboration with two other mlps, to develop a new uniform instrument to be used as preand post-survey for all learners involved with the mlp.[footnoteref:15] [15: the partnership is one of three mlp centers to be awarded a grant from the american association of medical colleges in 2015 entitled accelerating health equity, advancing through discovery (ahead). the thrust of this three-year grant is to develop and implement uniform metrics across three domains: patient and community; cost savings, institutional benefits, and efficiencies, and learners, including medial students, residents, fellows, and law and social work students. the goal is to determine the influence mlps have on outcomes and performance. ] 3. evaluating the systemic advocacy component the systemic advocacy component of the partnership is carried out through a class taught at the law school entitled health legislation and advocacy. students enrolled in the class work with non-profit community partners to address issues affecting the health and well-being of state residents. a preand post-survey instrument was developed for use with these students, and it was administered twice with varying success. the next phase of planned research will focus on discreet pieces of legislation enacted into law that were developed in the legislation class to determine whether changes in the law improved the situations the laws were designed to address. for example, the class researched whether increasing the age that children must be placed in booster seats while riding in motor vehicles in state would result in fewer deaths and significant head, neck and back injuries. compelling arguments were made that state’s law was too lax and that children would be safer if the age was increased. both the legislature and the governor agreed, and an age increase was enacted into law. now that the amended law has been in place for a few years, it is possible to develop a new research project to determine whether the new law has contributed to fewer deaths and serious injuries in young children following motor vehicle accidents. demonstrating a reduction in these types of serious injuries would help to demonstrate that systemic advocacy is a vital component of change within the mlp model. b. measuring the impact of clinical legal education while clinical educators know that clinical legal education methods enable students to learn essential knowledge, skills and values, it is difficult to quantify the impact that clinical legal education has on students because the clinical education experience touches so many aspects of professional identity and development. indeed, scholars have noted that existing research does not help reveal, explain or otherwise inform our understanding of the relationship between clinical legal education and the professional development of law students.[footnoteref:16] this gap in the research has motivated scholars to explore different aspects of clinical legal education and its effectiveness.[footnoteref:17] through formal evaluation processes, we may discover valuable information about the impact of the clinical legal education experience on student learning, development, beliefs, attitudes, and understanding. while the process of measurement can be challenging, the information gained can create new opportunities and should offset the costs.[footnoteref:18] without an evaluation process, we have no way of confirming our intuitions about the value of clinical and interprofessional education and of establishing whether we are meeting our teaching and social justice goals, nor are we able to make policy decisions informed by evidence.[footnoteref:19] the importance of the information that evaluation can provide in the clinical legal education context mandates that we continue efforts to study it. [16: sandefur & selbin, supra note 1, at 78.] [17: see, e.g., stefan h. krieger, the effect of clinical education on law student reasoning: an empirical study, 35 wm. mitchell l. rev. 359, 363 (2008).] [18: but see deborah l. rhode, access to justice: an agenda for legal education and research, 62 j. legal ed. 531, 542 (2013) (“compared with other work, empirical research has higher costs and lower rewards [for academics]. it is typically more expensive and time consuming than doctrinal or theoretical scholarship, requires greater interdisciplinary expertise and risks dismissal in some circles as ‘merely descriptive.’”).] [19: see also id. at 532 (discussing need for greater research about access to justice in american in order to inform legal service policies, education, and allocation of resources).] fundamental to clinical pedagogy is the process of self-reflection, which has long been used as a tool for informally evaluating students’ reactions to the clinical experience. clinical legal education is rooted in david kolb’s experiential learning model, which describes a cycle of learning that moves from actual experience, to observation and reflection, to the formation of abstract concepts, to testing and applying the learned theories and concepts to new situations.[footnoteref:20] learning through reflection is at the core of clinical pedagogy and is essential to the learning process.[footnoteref:21] clinical education emphasizes the importance of continuous self-reflection and critical examination of experiences.[footnoteref:22] self-reflection by students occurs in multiple venues during the clinic experience. it can be done through journals, essays, one-on-one meetings with supervisors, in classroom discussions, online discussions, and other contexts. reflection can also be prompted and measured through formal evaluation processes, and the results used to inform and improve clinical education. [20: alice y. kolb & david a. kolb, learning styles and learning spaces: enhancing experiential learning in higher education, 4 acad. mgmt. learning & educ. 193, 194 (2005).] [21: susan bryant et al., learning goals for clinical programs, in transforming the education of lawyers: the theory and practice of clinical pedagogy 13, 23–24 (susan bryant et al. eds., 2014).] [22: lisa radtke bilss & donald c. peters, delivering effective education in in-house clinics, in building best practices: transforming legal education in a changing world 188, 202 (deborah maranville, lisa radtke bliss, carolyn wilkes kaas & antoinette sedillo lopez eds., 2015). see also carolyn grose, beyond skills training, revisited: the clinical education spiral, 19 clinical l. rev. 489, 500 (2013); kimberly e. o’leary, evaluating law teaching–suggestions for law professors who have never used the clinical teaching method, 29 n. ky. l. rev. 491, 494–95, 503 (2002).] through evaluation, teachers and researchers may determine the levels of student understanding and achievement in different concepts, goals, or ideas, and how such understanding may have changed as the result of the experiences students are exposed to in a clinical course. moreover, asking students self-assessment questions, and engaging in pre-clinic and post-clinic surveys about the student experience forces students to think more deeply about their own experience, thus supplementing their opportunities for reflection, which are a critical part of the learning cycle. surveys can also measure and track how often students engaged in particular activities, and how well they think they performed them or developed their abilities in a particular skill. students can be asked about their learning goals and whether they believed that they were able to meet them through the clinical experience. surveys can explore particular values, attitudes, and ethics of students and how their experience in a clinic may have changed those values, attitudes, or ethics. evaluation contributes to a better understanding of clinical legal education’s effectiveness. knowing how the clinical experience has impacted students’ knowledge, skills, and values is valuable information both to understand what clinical education offers as part of a legal education curriculum and to understand where a clinical program may be falling short of its express mission or goals. evaluation results can also provide concrete information about where a clinical program is meeting its goals. for example, if one goal of a clinic is to help students form an awareness and understanding of social justice and how social factors may affect an individual’s ability to get justice in particular circumstances, students may be surveyed about their awareness and understanding of such issues before taking a clinical course and after taking a clinical course. the resulting survey information is important to clinic teachers. it can be studied and used to inform future iterations of the course and the clinic to ensure that the educational goals outlined for students will be met. survey data can be used to identify the necessity of making changes to course content and experiences where needed, and to identify those aspects of the course that have been demonstrated to be effective and should be continued. this information is not only important for the success of the program, but it is valuable knowledge for clinic teachers in their own professional development, for the development of clinical legal education, and education in general. a program that is regularly evaluating is also a program that is constantly innovating, because it can be responsive to the feedback that evaluation provides. research from the partnership’s irb approved research project has shown that employing its interprofessional education model that has medical students, law students, social work students and others learning and working together fosters a sense of collaboration and cooperation among them, thus positively influencing the professional attitudes and behaviors of the next generation of providers of health, legal and other related services.[footnoteref:23] working across disciplines to achieve a common goal of addressing children’s health and the socioeconomic barriers to health changes preexisting professional attitudes toward collaboration across disciplines. this change creates future professionals who will have knowledge of and access to multiple resources that enable them to better serve their patients and clients. [23: for example, the partnership clinic has surveyed medical students to determine whether their exposure to the partnership model increased their level of awareness that social determinants of health affect health outcomes, their willingness to screen patients to determine whether their health may be affected by health-harming legal problems, and, if patients screen positive, to refer them to the partnership for evaluation and possible assistance. while the data is not yet complete, early results indicate that exposure to mlp-styled interprofessional education favorably influences medical students’ behavior. as part of the american association of medical colleges grant, supra note 16, the partnership will be testing a survey instrument designed to measure the attitudes of law and medical students prior to the start of their work with the partnership clinic and after completion of their work with the partnership clinic in order to identify changes that have occurred in attitudes or beliefs.] measuring students’ progress, career choices, and social justice engagement after they leave the clinic can also help educators to understand the impact of the clinical experience more generally. for example, some clinics might want to specifically evaluate whether students believe that their participation in a clinic made them more likely to do pro bono work,[footnoteref:24] to advocate for marginalized populations, or to become public interest lawyers.[footnoteref:25] researchers targeting clinical education specifically could also generate new knowledge about the impact of clinical education by identifying the specific legal knowledge, skills and attitudes they hope clinics impart, describe the methods they use for doing so, and measuring how effectively their clinics achieve such goals.[footnoteref:26] [24: see sandefur & selbin, supra note 1, at 90–107 (recounting analysis of findings from data from a national survey of early-career attorneys entitled “after the jd”).] [25: id.] [26: id. at 105.] c. measuring the impact of legal services provided by clinics another critical area of research is a law clinic’s impact on the clients and the communities a clinic serves. many law school clinics engage in different processes to determine client satisfaction. however, satisfaction is just one measure of impact and effectiveness. other questions may be asked that allow researchers to understand more completely the impact of legal services and legal interventions on individuals as well as communities. for example, through its evaluation process and the data it generates, the partnership and the partnership clinic have been able to identify the impact that legal interventions have had on particular populations of children, such as those with chronic asthma or those with sickle cell disease.[footnoteref:27] researchers can track multiple outcomes that are relevant to the type of service being provided to determine whether and the extent of impact a clinic had on a client’s ability to obtain needed services or benefits, housing, jobs, community support, judgment, improvements in health, and other outcomes, and on a community’s ability to address environmental issues, economic development, human rights and myriad issues that clinics are formed to address. [27: see robert pettignano, lisa radtke bliss, sylvia b. caley & susan mclaren, can access to a medical-legal partnership benefit patients with asthma who live in an urban community?, 24 j. health care for poor & underserved 706, 706 (2013) [hereinafter pettignano et al., benefit patients with asthma]; robert pettignano, lisa radtke bliss & sylvia caley, medical-legal partnership: impact on patients with sickle cell disease, pediatrics, dec. 2011, at e1, e1 [hereinafter pettignano et al., patients with sickle cell disease].] the results of research can suggest ways to improve the quality and delivery of client service as well as the ability of clients to connect with the services a clinic provides. knowledge gained through research can identify the most fruitful referral sources for clients. for instance, if most clients self-identify as having legal problems and self-refer to the clinic for assistance in addressing these problems, the educational and promotional materials used to attract clients will differ substantially from materials employed to educate medical professionals about the clinic’s services. research can identify target audiences for these materials, identify where and how a clinic should invest resources in client education, and suggest where improvements may be made in the client intake process, overall program awareness, and in-service training of hospital professionals to educate them about legal issues, the eligible client population, and the legal services available. d. the value of data on clinical education and the impact of legal services the impact of a clinic’s services on clients and community, and the impact on student learning can all be explored through research and evaluation, in order to ensure that clinics are meeting student needs and learning goals, that teachers are meeting their objectives for the clinical learning experience, and that the clinics themselves are achieving their stated mission. without gathering the relevant data, it is difficult to demonstrate effectiveness, ensure quality, or be alerted to environmental changes that might affect a program’s effectiveness and/or sustainability. data is useful in identifying strengths, which can be leveraged, and weaknesses, which can be targeted for improvement. data can be used to assess impact and discoveries yielded can generate the publication of research and scholarship. publication of research enables the information discovered to be shared with a wider population. it also inures to the benefit of the participating institutions. in fact, the partnership project has yielded multiple opportunities to share research results, knowledge gained, and to share the development of the project as a model for others to replicate through conference presentations, workshops, consultations, speeches, and publications.[footnoteref:28] finally, data is also critically important to institutions and funders that provide resources to support clinical legal education, because it provides evidence of outcomes. [28: john ammann, emily a. benfer, lisa bliss, sylvia caley, elizabeth tobin tyler & robert pettignano, advancing health law & social justice in the clinic, the classroom and the community, 21 annals health l. 237, 237–56 (2012); lisa r. bliss, robert pettignano & sylvia caley, bridging the quality gap with medical-legal partnerships, 39 physician’s executive j. 44, 44–49 (2013); lisa bliss & sylvia caley, exploring cultural competence in the context of medical-legal partnerships, recent developments in health care law: culture and controversy, 25 hec forum 14, 14–21 (2012) [hereinafter bliss et al., exploring cultural competence]; lisa bliss, sylvia caley & robert pettignano, a model for interdisciplinary clinical education: medical and legal professionals learning and working together to promote public health, 18 int’l j. clinical l. educ. 149, 149–164 (2012) [hereinafter bliss et al., interdisciplinary clinical education]; sylvia b. caley, lisa radtke bliss & robert pettignano, speaking their language: developing a scorecard for medical-legal partnerships to balance quality and productivity, 5 int’l j. health, wellness & soc’y 9, 9–17 (2015); pettignano et al., benefit patients with asthma, supra note 28; robert pettignano, sylvia caley & lisa bliss, a case for including lawyers on the care team, physician executive j. 34, 34–38 (2011) [hereinafter pettignano et al., case for including lawyers]; robert pettignano, lisa radtke bliss & sylvia caley, collaborative diagnosis: interdisciplinary problem-solving between physicians and lawyers, 2 int’l j. health, wellness & soc’y 37, 37–41 (2013); robert pettignano, lisa bliss & sylvia caley, the health law partnership: a medical-legal partnership strategically designed to provide a coordinated approach to public health legal services, education, advocacy, evaluation, research and scholarship, 35 j. legal med. 57, 57–79 (2014) [hereinafter pettignano et al., health law partnership].] part ii what does a clinical legal education research project look like? a. social justice and the social determinants of health many definitions of social justice exist. a common thread is the focus on equal economic, political, and social rights and opportunities.[footnoteref:29] professionals in disciplines such as law, medicine, social work, public health, and ethics have long applied social justice principles to structural problems confronting the communities they serve. each discipline uses its existing principles and organizational structures to address the needs of its constituencies. within the healthcare field, there is a growing imperative to achieve health equity by addressing the social determinants of health, in order to improve health outcomes and reduce healthcare costs.[footnoteref:30] increasingly, healthcare providers are recognizing that they need to expand the healthcare team to include lawyers as well as problem-solvers from other disciplines in order to successfully address the complex social justice problems fermented by disparity and inequity.[footnoteref:31] successfully addressing such problems depends upon educating the next generation of professionals from all disciplines about the principles of social justice, and the tools and collaborative models that can be employed to address social inequity. [29: pamela edwards & sheila vance, teaching social justice through legal writing, 7 legal writing 63, 70 (2001). two scholars have provided the following definition of social justice issues: “social justice is the process of remedying oppression, which includes ‘exploitation, marginalization, powerlessness, cultural imperialism, and violence.’ issues of social justice include problems involving race, ethnicity, and interracial conflict, ‘class conflict, gender distinctions, . . . religious differences,’ and sexual orientation conflicts. social justice also includes public interest work in its many guises.” id. at 64.] [30: council on cmty. pediatrics, am. acad. of pediatrics, poverty and child health in the united states, pediatrics, apr. 2016, at 1, 1; michael marmot, social determinants of health inequalities, 365 the lancet 1099, 1099 (2005).] [31: bliss et al., exploring cultural competence, supra note 29; bliss et al., interdisciplinary clinical education, supra note 29; lisa bliss, sylvia caley & robert pettignano, an interdisciplinary collaborative approach to wellness: adding lawyers to the healthcare team to provide integrated care for patients, 1 int’l j. health, wellness & soc’y 129 (2011); pettignano et al., benefit patients with asthma, supra note 28; pettignano et al., patients with sickle cell disease, supra note 28.] clinical legal education has been recognized as an ideal vehicle to promote teaching and learning of social justice.[footnoteref:32] effectively teaching social justice requires the infusion of social justice principles and values not only in law clinics, but throughout the curriculum.[footnoteref:33] justice education can equip students with the skills and experiences necessary to promote social change and to increase equality among individuals.[footnoteref:34] interprofessional collaboration is a particularly effective way to address the multiple determinants of health and to promote health and social equity. in the united states, the triple aim of providing interprofessional education combined with addressing social justice principles and improving health outcomes is embodied in the medical-legal partnership movement.[footnoteref:35] documenting outcomes and performing research that focuses on measuring the success of such collaboration is essential to better understanding the value of this approach. such research can also ensure quality and continued improvement of the services provided by partnerships, promote the sustainability of partnerships, and encourage the formation of more mlp programs.[footnoteref:36] [32: lauren caraskik, justice in the balance: an evaluation of one clinic’s ability to harmonize teaching practical skills, ethics and professionalism with a social justice mission, 16 s. cal. rev. l. & soc. just. 23, 23 (2006).] [33: see ammann et al., supra note 29, at 237–56.] [34: jane h. aiken, provocateurs for justice, 7 clinical l. rev. 287, 288 (2001). scholar jane aiken aspires to not only the partnership students learn about justice through their clinical experience, but to also be a “provocateur” for justice, meaning one who inspires others to action, and who “actively imbues her students with a lifelong learning about justice, prompts them to name injustice, to recognize the role they may play in the perpetuation of injustice and to work toward a legal solution to that injustice.” id.] [35: the national center for medical-legal partnership states that across the united states 155 hospitals, 139 health centers, 34 health schools, 126 legal aid agencies, and 52 law schools have some form of medical-legal partnership to address the social determinants of health. partnerships across the u.s., nat’l ctr. for med.-legal partnership, http://medical-legalpartnership.org/need (last visited aug. 31, 2016).] [36: pettignano et al., health law partnership, supra note 29, at 57–79.] b. measuring the impact of social justice teaching in clinical legal education while much is written about assessment and evaluation in law school education, experience in measuring the social justice impact of students’ clinical experience is very limited.[footnoteref:37] to the extent that clinical programs employ the mlp interprofessional model, wide-ranging program research and evaluation focused on determining outcomes is nascent.[footnoteref:38] interprofessional learning experiences, in and of themselves, involve challenging and complex relationships particularly because most are created, at least in part, to contribute to transformative change in problem-solving.[footnoteref:39] these interdisciplinary experiences are created not only to facilitate students’ transition from didactic learning to clinical practice, but also to expose students to complex issues facing our society.[footnoteref:40] because of this complexity, developing research projects and creating tools to evaluate effectiveness can be challenging. moreover, few validated tools exist. within the clinical legal education model, traditional assessment criteria are insufficient.[footnoteref:41] success is not simply mastery of a body of knowledge. the common methodology, testing, is not indicative of development of skills and values. thus, there is both opportunity and challenge in developing evaluation and research projects employing realistic metrics. [37: lisa colarossi & mary ann forgey, evaluation study of an interdisciplinary social work and law curriculum for domestic violence, 42 j. soc. work educ. 307, 307–23 (2006); suellyn scarnecchia, an interdisciplinary seminar in child abuse and neglect with a focus on child protection practice, 31 u. mich. j.l. reform 33 (1997); elizabeth tobin tyler, allies not adversaries: teaching collaboration to the next generation of doctors and lawyers to address social inequality, 11 j. health care l. & pol’y 249 (2008); janet weinstein & linda morton, interdisciplinary problem solving courses as a context for nurturing intrinsic values, 13 clinical l. rev. 839 (2007).] [38: the national center for medical-legal partnership has developed performance measures to facilitate program evaluation efforts and systematic data collection by mlps. these performance measures are currently being tested in the field by the members of the national center. for more information, see measuring impact, nat’l ctr. for med.-legal partnership, http://medical-legalpartnership.org/resources/measures (last visited aug. 31, 2016). this effort is not focused on the particular needs of mlps located within law school clinics. the metrics project is currently under development through a grant from the american association of medical colleges, supra note 16, and includes an investigation of learner outcomes, including outcomes for law students.] [39: p. v. august et al., the t assessment tool: a simple metric for assessing multidisciplinary graduate education, 39 j. nat. resources & life sci. educ. 15, 16 (2010).] [40: karim s. bandali et al., innovations in applied health: evaluating a simulation-enhanced, interprofessional curriculum, 34 med. tchr. e176, e176–177 (2012), http://dx.doi.org/10.3109/0142159x.2012.642829.] [41: michael field & russell lee, assessment of interdisciplinary programmes, 27 european j. educ. 277, 278 (1992).] clinicians pursue developing mlp clinics not only because they believe in the benefits of interprofessional collaboration, but also because those very clinicians appreciate the complexity of the problems facing the disabled and chronically ill and understand that lack of equity is a root cause of health disparities.[footnoteref:42] studies have shown that patient outcomes, quality of care, and patient and provider satisfaction are improved in a collaborative practice setting.[footnoteref:43] socio-economic determinants of health affect health outcomes and legal intervention has the potential to effect improvement. engaging in interprofessional problem solving creates a natural opportunity for students to practice, learn, and have significant impact on those they serve. developing research protocols to evaluate whether these learning opportunities achieve the goals of improving health outcomes, addressing the social determinants of health, promoting social justice, and educating law students will facilitate further development of mlp law school-based clinics. key ingredients in determining the effectiveness of interprofessional efforts to address issues of social justice, include recognizing that measuring success is directly related to the learning objectives established in the curriculum; emphasizing the unique goals of the project or endeavor that is the focus of the educational experience; creating an evaluation method that matches the goals; and employing an array of assessment techniques. [footnoteref:44] [42: pettignano et al., case for including lawyers, supra note 29, at 34–35.] [43: j. g. baggs, intensive care unit use and collaboration between nurses and physicians, 18 heart & lung: j. critical care 332 (1989); william a. knaus, elizabeth a. drapter, douglas p. wagner & jack e. zimmerman, an evaluation of outcome from intensive care in major medical centers, 104 annals of med. 410 (1986); nurse-physician communication affects patient care, 16 health affairs 29 (1984).] [44: field & lee, supra note 42, at 282. see also barbara glesner fines, outcomes assessment for improving student learning, in building best practices: transforming legal education in a changing world, supra note 23, at 94, 94–100; judith welch wegner, assessment plans that support student learning, in building best practices: transforming legal education in a changing world, supra note 23, at 25, 25–36.] one option for other clinics interested in developing evaluation and research projects is to create an independent research team of students to help with study design and implementation. using this model, students are able to engage in all of the steps of a well-designed research project. by creating a “research clinic,” law students receive an applied learning experience that is as educational as other clinic models. a research clinic project may also make evaluation much more feasible for a program that may lack the resources to take on this kind of important assessment. finally, some students may bring valuable skills to such a project that improve it and can be incorporated into future projects. of course, as described below, a research clinic would need to comply with any research ethics obligations, which may include training for participating students if they are engaged in human subjects research. c. establishing the objectives for measuring impact and success the overarching goal of inter-professional collaboration is creating the climate in which participants are able to develop understanding of and embrace differences among the professional groups in order to develop common understanding.[footnoteref:45] interprofessional programs have complex outcomes, and selecting metrics is difficult if those outcomes are not clearly identified.[footnoteref:46] common themes emerge from these widely held objectives and goals. most faculties engaging in interprofessional work aspire to develop specific core attributes in their students following their exposure to the work. these core skills include: discipline role clarity; ability to understand the roles of other disciplines; skills in negotiating roles and managing role conflict; developing effective communication skills; developing group process skills, becoming more self-aware, and developing a positive attitude toward collaborative work.[footnoteref:47] [45: gunilla öberg, facilitating interdisciplinary work: using quality assessment to create common ground, 57 higher educ. 405, 406 (2009).] [46: donald e. stowe & douglas j. eder, interdisciplinary program assessment, issues integrative stud. 77, 84-85 (2002).] [47: colarrossi & forgey, supra note 38, at 307.] common threads connect varied disciplines when examining motivations behind developing interdisciplinary educational experiences. themes include integration of knowledge, need for innovation, development of deductive reasoning, promoting sophisticated analysis, developing the ability to reason by analogy, and, ultimately, development of synthetic thinking.[footnoteref:48] developing synthetic thinking involves employing integrative devices of “epistemic frames that enable [students] to articulate 2 or more disciplinary understandings.”[footnoteref:49] scholars have identified 21 cognitive skills associated with integrated experiences ranging from the development of critical thinking and recognition of bias to enhanced awareness of ethical issues.[footnoteref:50] fundamentally, the common objectives of interprofessional education are to improve the students’ foundation in their chosen disciplines, to advance their overall ability integrate problem-solving skills from other disciplines, and to arrive at a heightened level of critical awareness at the conclusion of the experience.[footnoteref:51] [48: veronica boix mansilla & elizabeth dawes duraisingh, targeted assessment of students’ interdisciplinary work: an empirically grounded framework proposed, 78 j. higher educ. 215, 217–18 (2007).] [49: id. at 226.] [50: id. at 217.] [51: id. at 222–29.] one identifier for determining whether some degree of integration is taking place within an interprofessional experience is to evaluate whether “considered judgment”[footnoteref:52] is at play. properties of considered judgment include the ability to weigh options, make compromises, and make decisions from the best available data. engaging in considered judgment develops disciplinary foundations, promotes assimilation of other disciplines’ problem-solving methods, and instills understanding of the goals, benefits, and limitations of interprofessional practice. success of an integrative experience may be measured by the “degree to which it achieves its purpose.”[footnoteref:53] [52: id. at 229.] [53: id.] one tool employed by most clinicians in facilitating learning is to require that students engage in some form of regular, reflective journaling. reflection, facilitated through activities, such as journaling exercises and the practice of reviewing memorialized reflections over time, provides insight into the development of critical awareness. examining structured reflections permits the opportunity to assess problems identified, options available, choices made, compromises reached, degree of collaboration achieved among the interdisciplinary participants, issues of conflict, ethical dilemmas, and advances in thinking. d. identifying the metrics within discipline-related legal education courses or clinical experiences, the goals of learning and the assessment principles are common and generally agreed upon.[footnoteref:54] also familiar is the need for assessment tools to measure change across the experience.[footnoteref:55] these common, agreed upon features can be incorporated into an evaluation or research protocol. educators in interprofessional programs share the need to determine whether students’ have developed knowledge of their own discipline’s role, practices, ethics, and duties as well as those of the disciplines of their collaborators. also important is assessing knowledge attainment of the specific content—health law, tax law, small business issues, or elder issues—and the role of other disciplines in holistically solving problems confronting clients. assessing the extent to which the students developed skills necessary to perform the work required of the experience is an important component. did the interprofessional experience enhance their acquisition of interviewing, counseling, negotiation, problem-solving, and/or conflict resolution skills? were members of the interprofessional teams able to effectively deploy the acquired skills? how did attitudes and understanding of professional values evolve over the learning period? were client experiences and outcomes improved due to the interdisciplinary collaboration? [54: see bliss & peters, supra note 23, at 188–215.] [55: colarrossi & forgey, supra note 38, at 309.] some interprofessional legal education programs utilize validated student evaluations to assess development of knowledge, skills, and values.[footnoteref:56] some examples of assessment tools include attitudes toward interdisciplinary teams scale, team skills scale (measures improved knowledge about teaming skills, ability to carry out tasks that contribute to quality teaming), and the general intellectual skills test.[footnoteref:57] the educational testing service maintains information of available tests.[footnoteref:58] using standardized, validated instruments to document student performance can establish that the interprofessional program at issue is performing well, attaining predetermined benchmarks, and is worthy of retention and support. standardized instruments permit comparisons with similarly situated programs. [56: constance l. coogle, iris a. parham, e. ayn welleford & f. ellen netting, evaluation of a distance learning course in geriatric interdisciplinary teaming, 28 educ. gerontology 791, 796 (2002).] [57: id.] [58: see educ. testing serv., https://www.ets.org (last visited aug. 31, 2016).] in interprofessional education programs, qualitative measures may be more useful.[footnoteref:59] quantitative measures evaluate attainment of clearly specified learning objectives and a numerical measure is affixed to performance. assumptions made in statistical analysis can be problematic.[footnoteref:60] qualitative measures, on the other hand, may be more flexible. “the complexity of human thought and discourse does not necessarily lend itself to numerical analysis.”[footnoteref:61] [59: field & lee, supra note 42, at 279.] [60: id.] [61: id.] challenges are associated with measuring the impact of social justice teaching. to what degree has a student’s understanding been advanced because of the interdisciplinary experience? what is the value-added achieved by the combination and balancing of multiple disciplinary views? can students from different disciplines enrolled in an interprofessional experience be evaluated in the same manner? will assessing students’ performance be useful and relevant to them as they move along their paths to professional identity and completion of their studies?[footnoteref:62] how do we determine the key features to be evaluated? for instance, should we determine whether differences in problem-solving approaches were managed effectively? [62: öberg, supra note 46, at 406–09.] e. a final word on the partnership’s experience with evaluation and research while the delivery of free legal services, educational endeavors, and systemic advocacy represent the core programs of the partnership, program improvement, growth, and sustainability would not have been possible without the evaluation and research component. engaging in evaluation and research has brought all participants in the partnership—partners, faculty, staff, contractors, learners, clients, and members of the partnership advisory council[footnoteref:63]—together in a coordinated effort to prove the utility of the partnership’s version of the mlp model. in many respects, research and evaluation is the glue that binds the discreet actors into a cohesive and successful collaboration. [63: the founding partners of the partnership determined during the process of establishing the partnership that creating an advisory council to assist with the development, growth, and sustainability of the project would benefit the endeavor. initially, members of the partnership advisory council were lawyers practicing in healthcare law at private firms in city, state. over time, as relationships developed, the advisory council membership diversified. today, membership includes physicians, social workers, nurses, and former students as well as lawyers specializing in healthcare law. the group meets quarterly and has proven to be instrumental in increasing the profile of the partnership.] part iii developing an empirical research project most legal scholars are not trained in empirical research. legal research generally is a relatively solitary activity – a scholar identifies a question of interests, searches and reviews the literature, and writes. rarely does a legal scholar report the paths her research took her along and what parts were included or excluded from the final product. empirical research is quite different. it demands a specific research question matched with an appropriate research methodology that provides data that will answer the question. there is an expectation that the research question and the methodology will be explicitly described when the results are published and that deviations from the methodology will be explicitly described and justified.[footnoteref:64] in addition, the research typically cannot be commenced until it has been reviewed and approved by an oversight committee.[footnoteref:65] this section provides guidance for developing a research question and navigating the research oversight system. [64: for a useful resource describing research methods that can fit legal analysis, see public health law research: theory and methods (alexander c. wagenaar & scott burris eds., 2013). the robert wood johnson foundation, which has supported the empirical research in public health law, has made some of the material contained in the book available on its website. see phlr methods, pub. health l. res., http://publichealthlawresearch.org/resources/methods (last visited aug. 31, 2016).] [65: the oversight committee may have different names in different countries, although their functions are similar. in the united states, these are referred to as institutional review boards (irbs), whereas in the uk and other countries these are referred to as research ethics committees (recs). having already mentioned the irb approval for the partnership research program, we will continue to use this term.] a. developing a research question the first step is to develop a research question. in short, the researcher needs to ask herself what she wants to know. steven r. cummings and colleagues developed the finer criteria for developing a good research question (see table 1).[footnoteref:66] according to this approach, a good research question is feasible, interesting, novel, ethical, and relevant. [66: stephen b. hulley et al., designing clinical research: an epidemiologic approach 19–21 tbl2.1 (2nd ed. 2001).] table 1: finer criteria for a good research question from: stephen b. hulley et al., designing clinical research: an epidemiologic approach 19 (2nd ed. 2001). reprinted with permission by wolters kluwer feasible adequate number of subjects affordable in time and money manageable in scope adequate technical expertise interesting to the investigator novel confirms or refutes previous findings extends previous findings provides new findings ethical relevant to scientific knowledge to future research directions to clinical and health policy although the authors’ discussion focuses on clinical research – i.e., research designed to test the safety and effectiveness of medical treatment, drugs, devices, and diagnostic tools – the criteria are adaptable to other contexts and serve as a useful guide for developing a good research question for measuring the impact of social justice teaching. some questions the researcher should be thinking about in developing her research question include (1) who and what she wants to measure; (2) why she wants to measure it (why does the answer matter?); (3) how she is going to measure it; and (4) what is she going to do with the information once she has collected it. this last question is important because many new researchers collect more information than they need. doing so can be problematic for several reasons. too much data can be overwhelming and even hamper the ability to make anything of it. collection of irrelevant data wastes researcher and participant time and resources. finally, collection of irrelevant personal data can unnecessarily increase the risks to participants. unfortunately, many of the things that researchers would like to study do not meet the finer criteria. for example, clinical educators may want to know whether students who participate in social justice clinics are better lawyers. even if the researcher could define what counts as a “better” or “good” lawyer and measure it, the study would be hard to conduct because not all students participate in social justice clinics and those who do may be different in important ways from those who do not participate. when the researcher faces such an issue, the finer criteria help point the researcher towards ways of revising the question so that the research can be conducted. (see table 2).[footnoteref:67] for example, the question above might be modified to ask whether students who participate in social justice clinics are better lawyers (however that is defined) than those who participate in lawyering skills courses that do not have a social justice component. [67: id. at 19–21 tbl2.2.] table 2: the research question and study plan: problems and solutions from: stephen b. hulley et al., designing clinical research: an epidemiologic approach 21 (2nd ed. 2001). reprinted with permission by wolters kluwer potential problem solutions a. the research question if not finer 1. not feasible too broad specify a smaller set of variables narrow the question not enough subjects available expand the inclusion criteria eliminate or modify exclusion criteria add other sources of subjects lengthen the time frame for entry into study use strategies to decrease sample size methods beyond the skills of the investigator collaborate with colleagues who have the skills consult experts and review the literature for alternative methods learn the skills too expensive consider less costly study designs few subjects and measurements less extensive measurements fewer follow-up visits 2. not interesting, novel, or relevant consult with mentor modify the research question 3. uncertain ethical suitability consult with institutional review board modify the research question b. the study plan is vague write the research question at an early stage get specific in the oneto two-page study plan how the subjects will be sampled how the variables will be measured in developing the research question, the researcher should be thinking about what kinds of research methods and data match the question she is trying to answer. a discussion of all of the different research methods available is beyond the scope of this article, but a researcher should think about whether she wants quantitative data – e.g., data that reflect that the number of graduates who perform pro bono hours following their experience in social justice clinics vs. those without that experience – or qualitative data – e.g., data that gives a rich description of the value graduates place on their experiences in social justice clinics and how their participation impacts the way they practice law.[footnoteref:68] although these are quite different approaches, they need not be considered mutually exclusive. indeed, mixed-methods approaches that involve both quantitative and qualitative approaches within the same research project can provide a fuller picture than can be obtained with one method alone.[footnoteref:69] to provide a familiar example, student evaluations typically provide both quantitative and qualitative data. students usually are asked to rank the professor and the course on a number of metrics on a numeric scale. these responses are relatively easily analyzed because there are limited choices (“closed-questions”) and numeric representations of counts and average ratings have meaning. because the same questions are asked across all courses, the summary rankings of the professor and course can be compared to others. but student evaluations also typically ask students for comments – open-ended questions that allow students free rein to express their opinions about the professor and the course. these data are not easily analyzed, but help to explain why, for example, students rated a professor highly or poorly. sometimes, these comments may reveal external influences (e.g., an 8 am friday class time) that result in low professor and course ratings. [68: for helpful introductions to different types of research, see the public health research methods materials cited supra note 65; hulley et al., supra note 67. there are numerous resources available that provide more detailed information about specific research methods.] [69: for a comprehensive discussion of the benefits and drawbacks of mixed-methods research, see r. burke johnson & anthony j. onwuegbuzie, mixed methods research: a research paradigm whose time has come, 33 educ. researcher 14, 14–26 (2004).] the researcher also should think about what is known about the question in terms of designing the research. when no research has previously been conducted, any information may be informative. thus, a quick snapshot may be sufficient. on the other hand, when one issue has been well-studied, it may be more important to look in a more targeted fashion or to build on that research and add a new dimension. the researcher also should think about the skills needed to complete the research effectively. most law professors–clinical and otherwise–are not trained in empirical research methods. tools such as surveymonkey™ have made it easier for people to create surveys,[footnoteref:70] but developing quality surveys that are understandable and produce quality data requires considerable skill. similarly, although numerous statistical calculators are available free on the internet,[footnoteref:71] the user needs to understand what statistical test is appropriate to what kind of data. accordingly, the clinician who wants to study the impact of social justice teaching should consider collaborating with people who have the requisite training to ensure that the project provides useful, valid results. some universities or university departments may provide consultation services for study design and statistical analysis. if such services are not available, it is worth looking for a colleague or a phd student with the requisite skill set who would be interested in collaborating on the research project. the value of getting input early in the development of the research project cannot be overestimated. many a research project has failed to reach its full potential because information required for the desired analysis was not collected or an ambiguity in a survey question was not discovered until after the surveys were completed. [70: survey monkey, https://www.surveymonkey.com (last visited aug. 31, 2016).] [71: see, e.g., statistical test calculators, soc. sci. stat., http://www.socscistatistics.com/tests (last visited aug. 31, 2016); quickcalcs, graphpad, http://www.graphpad.com/quickcalcs (last visited aug. 31, 2016).] even with careful planning, research can go awry. research depends on the cooperation of others. in the context of a clinic, researchers may rely on clinic staff to request participation and/or to complete data collection forms. however, those research activities often are in addition to their regular duties. accordingly, they may occasionally or regularly, depending on their commitment to the project and the exigencies of their work, forget to ask for participation or complete data collection forms. or they may ask only “cooperative” people to participate, thereby skewing the data. even when staff members perform all the research tasks perfectly, the people they recruit (e.g., students and clients) may refuse to participate or withdraw from participation after first agreeing to participate, in keeping with their legal and ethical rights (discussed more fully below). or those participants may agree to participate and simply forget to respond, despite staff members repeated efforts to get them to do so. these kinds of challenges are to be expected at some level in every research project. however, it is important to be aware of them so that planning can help to minimize the negative effects of such issues on the research project. for example, anticipated dropout rates can and should be taken into account in calculating the size of a study sample. even if research has not been conducted in the study population before, analogous populations can provide a reasonable estimate for dropouts or response rates. similarly, development of procedures, checklists, and training can increase the consistency of data collection. another important consideration for the researcher is how the research will be funded. much research will be conducted in the ordinary course of a legal academic’s scholarship. the benefit to this approach is that the academic typically does not need to search for external funding. the drawback to this approach is that the demands of the clinic and other obligations may leave little time for the research. in addition, there may be no funding for methodological and statistical expertise. external funding – e.g., a grant from a government agency or foundation – can provide important resources to support the project, including funds to pay for methodological expertise. however, external funders may prioritize different questions than the researcher. in addition, if their reporting requirements are frequent and detailed, they can distract from the research or even the main mission of the program. accordingly, it is essential to think carefully about whether the external funding advances the research goals of the program and that the benefits of the funding received outweigh the burdens involved in maintaining that relationship. the partnership has taken a hybrid approach. our clinicians have engaged in empirical research from the beginning of the program as part of their scholarship activities. however, we have also allocated money within the center for law, health and society budget (with which the partnership is affiliated within the university) and participated in fundraising with our community partners to support an evaluator for the research program. in addition, the partnership has applied for and received external funding that has supported a variety of research projects. b. legal and ethical requirements for research research involving human beings from simple surveys to complex biomedical clinical trials must comply with applicable ethical and legal standards. legal academics who are new to empirical research may be unfamiliar with these requirements. those who are familiar with them often complain about the burden imposed on them and the time wasted in complying with the laws.[footnoteref:72] accordingly, it is important to understand how the requirements came into being and why they remain essential ethical requirements. [72: see, e.g., human subjects research protections: enhancing protections for research subjects and reducing burden, delay, and ambiguity for investigators, 76 fed. reg. 44512, 44,512–15 (proposed july 26, 2011) (to be codified at 21 c.f.r pts. 50, 56). the background section of this advance notice of proposed rule-making to amend the common rule details some of the criticisms researchers have articulated about the u.s. research oversight regulations. id.] history. the legal and ethical standards that have come to apply to human subjects research have their history in scandal. the story normally begins with the nuremberg trial of the nazi doctors. the doctors conducted a variety of experiments on inmates in the concentration camps during world war ii. the experiments can be separated into two categories: (1) research intended to help the nazi war effort, including experiments on hypothermia and tropical diseases such as malaria, and (2) research intended to support the “final solution,” which focused on more efficient ways to render inmates infertile or to kill. in both categories, inmates were physically harmed, often severely, and many died.[footnoteref:73] the nuremberg code, issued as part of the judgment against these doctors is the first widely recognized research ethics code.[footnoteref:74] the horrors of the nazi experiments similarly influenced the world medical association to issue the declaration of helsinki.[footnoteref:75] the declaration, which has been updated multiple times since it was first issued in 1964, echoes many of the principles embodied in the nuremberg code. [73: for a detailed description of the experiments conducted in the concentration camps, see the nazi doctors and the nuremberg code: human rights in human experimentation (george j. annas & michael a. grodin, eds., 1995).] [74: see, e.g., evelyn shuster, fifty years later: the significance of the nuremberg code, 337 new eng. j. med. 1436, 1436 (1997); michel thieren & alexandre mauron, nuremberg code turns 60, 85 bull. world health org. 573, 573 (2007), http://www.who.int/bulletin/volumes/85/8/07-045443; nuremberg code, u.s. holocaust memorial museum, https://www.ushmm.org/information/exhibitions/online-exhibitions/special-focus/doctors-trial/nuremberg-code (last visited aug. 31, 2016) [hereinafter nuremberg code].] [75: world med. ass’n, declaration of helsinki: recommendations guiding physicians in biomedical research involving human subjects 1-2, http://www.wma.net/en/60about/70history/01declarationhelsinki/index.html.pdf (last visited aug. 31, 2016). the declaration is well regard around the world and has been incorporated into the laws and guidelines of many countries. for a full discussion, see delon human & sev s. fluss, the world medical association’s declaration of helsinki: historical and contemporary perspectives (2001), http://www.wma.net/en/20activities/10ethics/10helsinki/draft_historical_contemporary_perspectives.pdf. for the text of the current declaration, see declaration of helsinki: ethical principles for medical research involving human subjects, world med. ass’n, http://www.wma.net/en/30publications/10policies/b3/index.html (last visited aug. 31, 2016) [hereinafter declaration of helsinki].] despite its involvement in putting the nazi doctors on trial, the united states did not adopt its own ethical and legal standards to govern human subjects research until after public revelations about the tuskegee syphilis study.[footnoteref:76] the study involved 400 poor, black men in rural alabama with syphilis. the men, who were followed for 40 years, not only were not treated for syphilis, even after effective treatment became available, but were actively prevented from receiving treatment. some of the men’s wives and girlfriends and their children contracted syphilis as a result of this decision. it is not clear that the men were told they had syphilis or even knew that they were in a research study. the national commission for the protection of human subjects, created in the wake of the scandal, developed ethical principles for governing human subjects research in the belmont report.[footnoteref:77] those principles are incorporated into the legal requirement set forth in the federal regulations governing human subjects research known as the common rule.[footnoteref:78] [76: u.s. public health service syphilis study at tuskegee, ctr. for disease control & prevention, http://www.cdc.gov/tuskegee/timeline.htm (last visited aug. 31, 2016).] [77: protection of human subjects; belmont report: ethical principles and guidelines for the protection of human subjects of research, 44 fed. reg. 23,192 (april 18, 1979); nat’l comm’n for the prot. of human subjects of biomedical & behavioral research, the belmont report: ethical principles and guidelines for the protection of human subjects of research, u.s. dep’t health & hum. services (april 18, 1979), http://www.hhs.gov/ohrp/regulations-and-policy/belmont-report [hereinafter the belmont report].] [78: office for human research prot., federal policy for the protection of human subjects, u.s. dep’t health & hum. services, http://www.hhs.gov/ohrp/regulations-and-policy/regulations/common-rule/index.html (last visited aug 31, 2016). in 2011, the federal government issued an advance notice of proposed rule-making to amend the common rule for the first time since 1981. see human subjects research protections: enhancing protections for research subjects and reducing burden, delay, and ambiguity for investigators, 76 fed. reg. at 44,512–15. a notice of proposed rule-making was issued in 2015, but has been widely criticized. see office for human research prot., nprm for revisions to the common rule, u.s. dep’t health & hum. services, http://www.hhs.gov/ohrp/regulations-and-policy/regulations/nprm-home (last visited aug 31, 2016) [hereinafter office for human research prot., nprm for revisions]. as of this writing, no changes have been made to the common rule.] the scandals involving human subjects research have not ended with the adoption of legal and ethical standards. the last decades have surfaced a host of additional research scandals, both old and new. for example, historian susan reverby unearthed documents that revealed that, following world war ii, the united states engaged in research on sexual transmitted infections (stis) among prisoners, soldiers, native populations, and children in guatemala. in these studies, the researchers actively infected the research subjects with stis.[footnoteref:79] there are also a range of social-behavioral studies that gave rise to significant ethical concerns. in the milgram obedience studies, research subjects assigned as “teachers” were instructed by researchers to administer escalating electric shocks to the “learner” for incorrect answer. many subjects administered the highest level, despite yells of pain from the learner in the next room. unbeknownst to the subjects, the “learners” were confederates of the researchers and no shocks were actually administered.[footnoteref:80] in the stanford prison study, young college men were assigned to the roles of guards or prisoners in a simulated prison in the basement of the stanford psychology department. the study had to be stopped after a few days, when the “guards” became increasingly abusive to the “prisoners,” causing mental distress among them.[footnoteref:81] [79: susan m. reverby, “normal exposure” and inoculation syphilis: a phs ‘tuskegee’ doctor in guatemala, 1946–1948, 23 j. pol’y hist. 6, 6-28 (2011). a common misconception about the tuskegee syphilis study is that the researchers infected the men with syphilis. while untrue in that study, the guatemala studies demonstrated that the suspicion that the us public health service would do so was not unwarranted. id. for the presidential commission for the study of bioethical issue’s report about the guatemala studies, available in english and spanish, see presidential comm’n for the study of bioethical issues, “ethically impossible” std research in guatemala from 1946 to 1948 (2011), http://bioethics.gov/node/654. the discovery of the guatemala studies prompted a governmental review of u.s.-supported human subjects research. for the commission’s report, see presidential comm’n for the study of bioethical issues, moral science: protecting participants in human subjects research (2011), http://bioethics.gov/node/558.] [80: see saul mcleod, the milgram experiment, simply psychology (2007), http://www.simplypsychology.org/milgram.html.] [81: see romesh ratnesar, the menace within, stan. mag. (2011), https://alumni.stanford.edu/get/page/magazine/article/?article_id=40741; philip g. zimbardo, stan. prison experiment, http://www.prisonexp.org/ (last visited aug. 31, 2016) (hosted by philip zimbardo, the psychology professor who conducted the experiment).] common principles. although the legal and ethical standards vary in detail around the world,[footnoteref:82] there is general agreement about some basic aspects. [82: the u.s. office for human research protections (ohrp), which is part of the department of health and human resources, has collected international resources on human subjects research. for more information or to access these materials, see office for human research prot., international, u.s. dep’t health & hum. services, http://www.hhs.gov/ohrp/international/index.html (last visited aug. 31, 2016). in addition to collecting links to us laws, ethical codes like the world medical association’s declaration of helsinki, declaration of helsinki, supra note 76, the ohrp website includes an international compilation of human research standards, which lists over 1,000 laws, regulations, and guidelines governing human subjects research in 113 countries, as well as international and regional organizations. see office for human research prot., supra.] first, there is general agreement that research must follow three basic ethical principles: (1) that participants are treated with respect, including seeking informed consent from individual participants (respect for persons); (2) that benefits will be maximized and risks minimized (beneficence); and (3) there will be equitable selection of participants (justice).[footnoteref:83] [83: see 45 c.f.r. § 46.111 (2016); nuremberg code, supra note 75; declaration of helsinki, supra note 76; the belmont report, supra note 78.] second, there is general agreement that there should be independent review of a research project before research commences. in the united states, the reviewing body is call an institutional review board (irb) because they generally are housed at the university, hospital, or other research body that is conducting the research. in other countries, these may be called research ethics committees (rec). the general requirements may be eased if the research presents very little risk to the participants. these circumstances will be specified in the law or ethical code. for example, in the united states, research involving interview and survey methods are generally considered to present minimal risk to participants and may be exempt from the research regulations.[footnoteref:84] however, these regulations represent a legal floor, and an irb may determine that greater scrutiny is necessary. for example, an irb may impose stricter requirements on research on sensitive topics, such as hiv that may be stigmatizing if revealed, even when they use research methods that typically pose little risk. similarly, irbs may be concerned about use of student data, which is often protected by law. the flexibility afforded to institutions in applying the regulations also leads to some of the complaints leveled against irbs. [84: 45 c.f.r. 46.101(b)(2) (2016).] while it is useful to understand the general principles that govern human subjects research, it is essential to understand that rules that apply specifically to the country or countries in which the research is conducted. the u.s. office for human research protections’ (ohrp) has compiled a list of laws, regulations, and guidelines governing human subjects research in over 100 countries.[footnoteref:85] this is a helpful reference for the relevant laws in a particular country. however, because the laws are often complex and institutions have their own requirements with respect to training and procedures, new researchers should begin their introduction into these rules through their own institution. information may be housed in a central or departmental research office, research ethics committee office, or legal counsel’s offices. in addition, other researchers may be helpful in understanding obligations, as well as provide practical advice about how to navigate the oversight requirements. however, as discussed in the next section, some researchers may view of the oversight system as an impediment to research, which may skew their perceptions of the process. accordingly, it is important to keep in mind, despite frustrations, researchers and research ethics committees share the same goal of protecting the rights and well-being of human subjects while advancing important research. [85: office for human research prot, supra note 83.] working within the human subjects oversight system. the literature is full of complaints about the human subjects oversight system.[footnoteref:86] researchers complain about inconsistencies among irb reviews, long delays in receiving requisite approvals, which contribute to research costs, and a lack of transparency in decision-making. some of these criticisms are valid. irbs are made up of human beings, who can make mistakes in interpretation. increased research activity and scrutiny of research oversight without additional investment has led to delays. but the regulations also allow for flexibility and consideration of local conditions, so some differences in reviews may merely illustrate the regulations in action. moreover, researchers can also contribute to problems in review. failing to follow instructions, provide requested information, or respond in a timely fashion can substantial delay the review process. [86: the advance notice of proposed rule-making related to the common rule summarizes many of the criticisms. see office for human research prot., nprm for revisions, supra note 79.] researchers need to take the human subjects oversight process as seriously as they take their study design. conducting research with human beings is a privilege, not a right, and it requires substantial thought. accordingly, care should be taken to provide the irb with the information that it needs to do its work. understanding the reasons for the system helps researchers understand why they are providing the information they are, as well as to help them explain to the irb why they are pursing the research in the way that they are. it also helps researchers to engage with the irb when it raises questions or expresses concern about a study. researchers do not need to capitulate to irb requests if the research demands otherwise; instead, they should reach out to the committee chair, members, or staff, as permitted by the committee rules, and work together to find a solution that meets the requirements of the research and the human subjects obligations. such negotiation is likely to be most effective when the researcher understands and respects the legal and ethical requirements with which the irb must comply and discusses how their research fits within those requirements. part iv conclusion as predicted at the inception of the project, the partnership and the partnership clinic have proved to be rich sources of data regarding the effectiveness and impact of interprofessional collaboration and education on students, as well as on the lives of clients and their families, all of whom are low income and most of whom are facing multiple hardships as the result of chronic illness or disease combined with other disparities. by going through the process of identifying the aims of the project, and the questions we wanted to explore, creating and refining survey instruments, and continuing to collect data year after year, we have created a resource of information that has provided multiple benefits to our own project as well as served to educate and inform others. this data has allowed us to assess the impact of our work, to improve referral systems, the services we provide, and the nature of education offered to students, and ultimately to understand whether our dual aims of educating law students about justice and health equity and holistically addressing the health problems of low income children and their families are being met. we encourage other educators to join us in the journey of discovering the power of research to inform the future. 7 257699b_ijcle_july_09 a medical/legal teaching and assessment collaboration on domestic violence 61 a medical/legal teaching and assessment collaboration on domestic violence: assessment using standardized patients/standardized clients antoinette sedillo lópez, j.d.1, cameron crandall, m.d.2, gabriel campos j.d., diane rimple, m.d., mary neidhart b.s.n, teresita mccarty, m.d., lou clark mfa, steve mclaughlin m.d., carrie martell m.a. 1 j.d. ucla, professor of law and associate dean for clinical affairs, university of new mexico school of law. the authors would like to thank the university of new mexico school of medicine, scholarship in education allocations committee for a grant to fund the use of the standardized patients/clients for the pretest and the post test. the support is very much appreciated. p. maclean zehler, ba assisted in training the standardized patients and clients. law professor april land assisted with the role development of the standardized client. nancy sinclair, rn, mba assisted with the planning and development of the project. we also thank the law students and emergency room residents who participated in this project. 2 associate professor and vice chair for research, emergency medicine, university of new mexico school of medicine. 62 international journal of clinical legal education july 2009 introduction assessment of skills is an important, emerging topic in law school education. two recent and influential books, educating lawyers3 published by the carnegie foundation and best practices in legal education,4 published by the clinical legal education association have both suggested dramatic reform of legal education. among other reforms, these studies urge law schools to use “outcome-based” assessments, i.e., using learning objectives 5 and assessing knowledge and skills in standardized situations based on specific criteria, rather than simply comparing students’ performances to each other. 6 according to best practices, england, wales, scotland and australia are transitioning to outcome based legal education.7 the american bar association (aba) council on legal education has formed a special committee to study law school outcome measures in connection with its role as the accrediting agency in the united states.8 the committee report specifically mentions the outcome based accreditation standards used in medical education that include objective structured clinical examinations (osce).9 the osces use standardized patients (sps) to simulate medical problems in order to teach and to assess learners’ clinical skills in simulated, “real world” situations. since the 1970’s medical schools in the united states have used standardized patients to teach and assess patient evaluation skills. these assessments provide feedback to both learners and educational programs. learners use feedback to focus their learning efforts and programs use feedback to guide curricular changes.10 in 2004, the national board of medical examiners incorporated standardized patient assessments into physician licensing requirements.11 the use of standardized clients in law schools has been much more limited.12 3 william m. sullivan, anne colby, judith welch wegner, lloyd bond & lee s. shulman, educating lawyers: preparation for the profession of law (2007) (hereinafter educating lawyers or the carnegie report). 4 roy stuckey and others, best practices for legal education: a vision and a road map (2007) (hereinafter best practices). mary lynch and albany law school have created a blog: “1) to create a useful web-based source of information on current reforms in legal education arising from the publication of roy stuckey’s best practices for legal education and the carnegie foundation’s educating lawyers; and 2) to create a place where those interested in the future of legal education can freely exchange ideas, concerns, and opinions.” http://bestpracticeslegaled .albanylawblogs. org/ (visited 9/14/08). 5 roy stuckey, teaching with purpose: defining and achieving outcomes in clinical courses, 13 clinical l. rev. 807 (2007). 6 antoinette sedillo lopez, leading change in legal education – educating lawyers and best practices: good news for diversity, 31 seattle l. rev. (forthcoming). greg s. munro, how do we know if we are achieving our goals?: strategies for assessing the outcome of curricular innovation, 1 j. ass’n l. writing directors 229 (2002). 7 best practices, op. cit at 45. see also, roy stuckey, the evolution of legal education in the united states and the united kingdom: how one system became more faculty-oriented while the other became more consumeroriented, (2004) ijcle 101. 8 the committee is chaired by randy hertz. a copy of the committee report is posted on the aba web site. american bar association, section of legal education and admissions to the bar, report of the outcome measures committee, http://www.abanet.org/legaled/ committees/subcomm/outcome%20measures%20fin al%20report.pdf 9 id. 10 greg s. munro, how do we know if we are achieving our goals?: strategies for assessing the outcome of curricular innovation, 1 j. ass’n l. writing directors 229 (2002). 11 howard s. barrows, an overview of the uses of standardizd patients for teaching and evaluating clinical skills, 68 acad. med. 443 (1993). 12 professor grosberg developed a pilot project to evaluate their effectiveness at new york law school. see lawrence m. grosberg, medical education again provides a model for law schools: the standardized patient becomes the standardized client, 51 j. legal educ. 212 (2001). (noting the uniqueness of the model a medical/legal teaching and assessment collaboration on domestic violence 63 the social problem of domestic violence (dv) has created a need for increased professional awareness and expertise.13 two of the key systems that identify and offer assistance to victims of dv include the legal system (e.g., judges, law enforcement, family law lawyers, legal aid) and the medical system (e.g., first responders, physicians and nurses, particularly in emergency departments and primary care clinics, dentists). as in most professional schools, the dv curricula in our law and medical schools are underdeveloped and they were not integrated. in the summer, 2007 a public interest lawyer (gc) and a faculty member (cc) from the department of emergency medicine at the university of new mexico approached the law school about collaborating on a joint dv training program. professor sedillo lopez teaches family law, and she was very interested in leveraging resources and in new approaches to addressing dv.14 thus, the dv medical/legal collaboration was born. educational foundation learning theory indicates students learn best when they are engaged, when they have an immediate “need to know”; when learning is active; 15 and, when they receive timely, constructive feedback.16 problem based learning can help teachers identify students’ misconceptions and can help students build on their prior knowledge.17 a goal was to use best practices in education to boost knowledge about dv and interviewing and counseling skills in dv among law students and medical 16 (12 cont) for legal education); karen barton, clark cunningham, gregory todd jones & paul maharg, valuing what clients think: standardized clients and the assessment of communicative competence, 13 clinical l. rev. 1 (2006) (measuring effectiveness of use of standardized client in a scottish law school); paul maharg, transforming legal education: learning and teaching the law in the early 21st century (2007) (describing vision for reform of legal education in scotland, including the unique use of standardized client). 13 lenora olson, carolyn l. anctil, fullerton, judith brillman, justin arbuckle, david sklar. increasing emergency physician recognition of domestic violence. 27(6): ann emerg. med. 741 (1996) justin arbuckle, lenora olson, mike howard, judith brillman, carolyn anctil, david sklar, safe at home? domestic violence and other homicides about women in new mexico. ann. emerg. med. 1996 feb.27;(2): 210–5. jennifer brokaw, lynne fullerton-gleason lenora olson l, cameron crandall, steven mclaughlin s, david sklar d. health status and intimate partner violence: a cross-sectional study. 31 ann emerg med. 8 (2002). 14 although family law is taught at the university of new mexico (unm) school of law as a substantive course and not a clinical course, this project was an example of using clinical methodology in a traditional substantive course. the university of new mexico requires all law students to complete a six credit required client-service clinical course. see michael norwood, requiring a live client, in-house clinical course: a report on the university of new mexico law school experience, 19 n.m. l. rev. 265 (1989) (analyzing the structure and history of the unm clinical program); antoinette sedillo lopez, learning through service in a clinical setting: the effect of specialization on social justice and skills training, 7 clinical l. rev. 307 (2001) (describing unm’s required clinical law program). 15 julie macfarlane and john manwaring, using problembased learning to teach first year contracts, 16 j. professional l. educ. 271 (1998); susan bryant & elliot millstein, rounds: signature pedagogy for clinical legal education? 14 clinical l. rev. 195(2007); myron moskovitz, beyond the case method, it’s time to teach with problems, 42 j. l. educ. 241 (1992). 16 frank s. bloch, the andragogical basis of clinical legal education, 35 vand. l. rev. 321 (1982); amy zielgler, developing a system of evaluation in clinical legal teaching, 42 j. legal educ. 575 (1992). 17 antoinette sedillo lopez, making and breaking habits: teaching (and learning) cultural context, self awareness and intercultural communication in a client service clinic, 28 wash. u. j. l. & pol’y (forthcoming); peter toll hoffman, the stages of the clinical supervisory relationship, 4 antioch l. j. 301 (1986); beryl blaustone, teaching law students to selfcritique and to develop critical clinical self awareness in performance, 13 clinical l. rev. 1213 (2006) (describing how to use feedback sessions to teach students to self-critique and emphasizing the value of feedback); ann shalleck, clinical contexts: theory and practice in law and supervision, 21 n.y. 21 n.y.u. rev. l.& soc. change 109, 146–49 (1993–94); richard k. neumann, a preliminary inquiry into the art of critique, 40 hastings l.j. 725 (1989) (discussing methods of critiquing simulation). residents.18 best practices includes the use of formative assessment, which is ungraded feedback about students’ performance.19 it is a valuable way to help students learn, because it gives students interim feedback so that they can improve their skills. students can reflect on the formative assessment to enhance their learning. particularly in the area of domestic violence, students presented with situations to address can become more aware of their attitudes toward the issues and the clients. 20 focusing on effective communication skills can help students develop the ability to establish rapport and demonstrate empathy.21 giving students feedback on their performance in a realistic environment can help them improve their performance.22 the problems were used in a pre-test and a post-test to evaluate the effectiveness of our training sessions. 23 the paper will discuss the law-medicine collaboration process in the development and use of a standardized patient/ client as part of training and assessment about domestic violence. method the collaboration in order to implement the educational principles described above, a collaborative team was formed. team members included emergency medicine professors from the medical school, formative assessment specialists, sp training specialists, a community attorney who specializes in domestic violence, professors and a teaching assistant from the law school. the team members met to design the teaching (curricular intervention) and assessment plan (preand post-test). selected participant learners were 18 emergency medicine residents in their second and third post graduate year and 26 second and third year law students enrolled in a family law course. once the learning objectives were identified for each group (table 1), four simulated cases were created with focus on health issues and legal concerns related to dv. sps (trained actors or community members) portrayed the case, first as a medical patient and then as a legal client. learners interviewed the patient/client in order to evaluate the presenting problem(s) and make recommendations consistent with best professional practice. learners interacted with two cases prior to the curricular interventions and another two cases afterward. each of the four cases had two dimensions. each case began with the sp presenting to the emergency department with a medical issue related to domestic violence. in half of the cases, the relationship of the medical complaint to domestic violence was overt24; in the other half, the relationship was 18 susan m. williams, putting case-based instruction into context: examples from legal and medical education, 2 (4) j. learning sciences 367 (1992) . 19 best practices at 191. 20 emma williamson, domestic violence and health (2000). 21 antoinette sedillo lopez, making and breaking habits: teaching (and learning) cultural context, self awareness and intercultural communication in a client service clinic, 28 wash. u. j. l. & pol’y (forthcoming). 22 beryl blaustone, teaching law students to selfcritique and to develop critical clinical self awareness in performance, 13 clinical l. rev. 1213 (2006) (describing how to use feedback sessions to teach students to self-critique). 23 an abstract summarizing the results was published. cameron crandall, antoinette sedillo lopez, steve mclaughlin, diane rimple, gabriel campos, teresita mccarty, assessment of a cross-disciplinary domestic violence training for emergency medicine residents and law students, 15 academic emergency medicine issue s1 p s225-s225 published online: may 1 2008 12:00am doi: 10.1111/j.1553-2712.2008.00130_4.x. 24 an overt relationship involved injury that was caused by the domestic violence. 64 international journal of clinical legal education july 2009 a medical/legal teaching and assessment collaboration on domestic violence 65 more covert25. following the medical assessment, the patient was then “referred” to a family law student for legal counseling.26 the individuals who portrayed the patients/clients had ten hours of training per case led by training specialists and case content experts. although there was more than one sp who portrayed a role in the case, the training methodology helped assure a higher level of consistency and standardization within and across portrayals. the sps were also trained to score the learner’s interview skills in a consistent and reliable manner using team developed, case specific checklists.27 the learners’ communication skills were assessed on a behaviorally anchored global rating scale developed at the unm school of medicine. the medical interview lasted 15 minutes and the law student interview lasted 30 minutes. interviews were videotaped so the learners could watch and learn from observing themselves in action. learners documented their interview as they would for the medical record or the client intake memo respectively. finally, learners completed surveys that elicited information about their attitudes toward dv, the learning methods used in this intervention, and perceived preparedness and competence for working with dv victims. the interview and communication skills scores were calculated and provided to the learners, as was access to a video recording of their interview. the curricular intervention the learners received lectures from dv experts including a legal aid attorney, emergency medicine physicians, a tribal attorney, and a domestic violence hearing commissioner. academic and community resource materials were distributed, a first person account was shared, and there was a session for interdisciplinary case discussion between the residents and the law students. case scenarios the following are brief synopses of the case scenarios prepared by the team. case 1 medical: gabriela, a 30 year old woman, presents to the emergency department because of cramping and vaginal bleeding. her live in boyfriend kicked her in the abdomen yesterday. the cramping and bleeding began after the assault. legal: gabriela and john have been together for about 1 year and for the past 6 months they have had an increasingly violent relationship. gabriela was born in mexico and she is not a us citizen. john has become more controlling and often threatens to “deport” her while keeping their child. case 2 medical: maggie, 35 years old, presents to the emergency department because of a headache. she is worried about her blood pressure. maggie is recently homeless and cannot afford her blood pressure medication. she and her two children are living in her car in a parking lot. 25 a covert relationship involved a tenuous relationship between the reason for the emergency room visit and the incidence of domestic violence. 26 this is similar to what would happen as a part of the clinical law program’s med/law alliance started by professor mike norwood. http://bestpracticeslegaled .albanylawblogs.org/2008/02/19/learning-frommedical-school%e2%80%94resident-and-law-studentinteraction/ see also, j. michael norwood and alan paterson, problem solving in a multidisciplinary environment: must ethics get in the way of holistic service, 9 clinical l. rev. 337 (2002). 27 a sample from the checklists is in the appendix. legal: maggie divorced her husband, about 6 months ago. there was a history of physical and emotional abuse. he is supposed to pay $550 per month in child support but has not paid for several months. they have joint custody. maggie is concerned about finances, housing, john’s behavior and is worried about losing the kids. while she has not wanted to go to a shelter in previous encounters, with professionals, at this time, she is ready. case 3 medical: lucinda, 30 years old, presents to the emergency department complaining of a sore throat. she wears a scarf around her neck to hide strangulation impression marks sustained during an argument with her fiancé (glen). she was encouraged to go to the ed by her sister. legal: lucinda and glen have been together for about 2 years. for the past 6 months, they have had an increasingly violent relationship. she works as an accountant. she is referred to the legal clinic to explore her legal options. she is resistant to an order of protection. she talks about the planning that has gone into her upcoming wedding. case 4 medical: charlene, a 40 year old american indian woman, presents to the emergency department because her blood sugar has been high. the insulin she uses to control her diabetes went “bad” when her electricity was turned off because she could not afford to pay her utility bill. she is living in her apartment her two teenage children. she has mild thirst and frequent urination and no other symptoms of her elevated blood sugar. legal: charlene legally separated from her husband, mike about 6 months ago. because there was physical and emotional abuse, she obtained a legal tribal order of protection. charlene wants to know if the protection order is good off the tribal reservation. although charlene has custody of the two kids, mike is not paying the mandated child support. mike has been harassing charlene for several weeks and she is concerned about money, housing, and safety. results eighteen (78%) emergency medicine residents and 26 (93%) family law students completed both the preand post-test portions of the study. pre-intervention, emergency medicine residents scored 63% (8% standard deviation (sd)) on communication skills and gathered 71% (13%) of the prespecified critical historical elements. law students scored 62% (8%) on communication skills and gathered 66% (8%) of critical historical elements. emergency medicine residents (64% (6%)) and family law students (63% (6%)) showed similar post-intervention communication skills scores. both residents (77% (10%), improvement 6%, p = 0.13) and law students (71% (14%), improvement 8%, p = .15) showed modest but non-significant improvement in critical historical element gathering. while there were no statistically significant changes in communication skills or critical history gathering by either the residents or the law students, post assessment surveys indicated the experience provided opportunities to learn new information and skills and review prior knowledge; learners indicated they felt more confident, most indicated an interest in learning more about dv. law students indicated that they would have liked to have general interviewing skills training prior to the pre-test, the first two sp cases, so that they would have been more prepared 66 international journal of clinical legal education july 2009 a medical/legal teaching and assessment collaboration on domestic violence 67 to interact with clients. in contrast, the emergency medicine residents have had substantial practice with general interviewing skills in their training program and in medical school. in addition, osce/sp interviews are relatively frequently used amongst medical trainees. the law students were unfamiliar with the concept of a formative pre-test and did not trust that the pretest was really formative (not graded). despite having an orientation to the sp interview and viewing a videotape of an example interview, law students did not like feeling “un-prepared” for the pre-test. following the pre-test for the law students, the assessment truly demonstrated the powerful effect of formative techniques, as their level of interest in the material and their engagement of the material after the pre-test was very high. additionally, it was the law professor’s impression on reviewing of a sample of the video-tapes that the law students demonstrated more confidence and empathy in the post test. family law student comments about the experience were generally quite positive in the course evaluations. finally, performance on the traditional law school exam was very good. all but one student identified the domestic violence issue on the exam and the discussion of the issue was quite comprehensive. following the intervention, the emergency medicine faculty noted an increased awareness of legal issues among the emergency medicine residents in their clinical assessments of patients in the emergency department. one emergency medicine resident stated that he had recognized important legal issues in several patients with a history of domestic violence in the first week after the intervention. an unanticipated result of this collaborative project was the critical review of assessment practices occasioned by the impact of the criterion-referenced assessment culture of the medical school on the norm referenced law school assessment culture. performance assessment, interview simulation, formative assessment, and scores that do not result in grades were new concepts to most of the law students.28 the collaborative group produced a synergy that has resulted in a number of related projects that are impacting the community (table 3) and the curricula of both the law and medical school. conclusion a brief cross-disciplinary training between medical and legal learners demonstrated low baseline scores in domestic violence assessment for both learning groups with modest, but non-significant improvements in gathering of critical historical elements following intervention. longer didactic training or more focused skill building might improve skills. results from this project were instrumental in promoting a critical evaluation of domestic violence training at both the law and medical schools at our university. the team recently received a second grant from the scholarship in education allocations committee of the school of medicine. the school of law also contributed to the funding of the second phase of this project. we will use the grant to redesign the training to include skills training and role play exercises to enhance the law students’ and residents’ communication skills. we will be able to compare the effectiveness of the skills training to the didactic training we provided in 2007. 28 best practices for legal education blog: http://bestpracticeslegaled.albanylawblogs.org/2008/02/06/learning-frommedical-school-about-assessment/ appendices table 1: student learning and performance objectives medical residents will: • obtain appropriate and focused medical history • recognize domestic violence as contributing factor to medical and social problems • perform assessment and appropriate referral • document patient findings in the medical record in a manner that is useful for legal follow-up • develop evidence informed attitudes about how and why people end up in dv situations law students will: • conduct an interview and establish rapport with a client who has experienced domestic violence • work with the client to identify legal options and resources; • provide information to client about legal options including civil and criminal remedies; • provide information and counseling regarding safety planning; • write an intake memo about the encounter that includes relevant case facts, identification of legal and social resources as well as client’s desired outcomes. table 2: sample critical action checklists for legal and medical legal learners for case 2, “maggie” legal checklist for case 2 law students 1. did student establish that interview is confidential? 2. did student elicit/do a safe way to contact the client? 3. did student elicit/do complete contact information for the perpetrator? 4. did student elicit/do the current safety of the client? 5. did student elicit/do safety planning with the client? 6. did student discover if client is ready file order of protection? 7. did the student explain legal options available to client pertaining to restraining orders? 8. did the student elicit information from client regarding custody? 9. did the student elicit information from client regarding child support? 10. did student provide information for social service assistance (e.g. shelters, food banks)? 11. did student elicit pattern of domestic violence including the number of incidents or the dates of incidents? 12. did student elicit severity of abuse? 13. did student elicit if there were any witnesses to the incidences of abuse? 68 international journal of clinical legal education july 2009 a medical/legal teaching and assessment collaboration on domestic violence 69 emergency medicine checklist 1. did student discover when the headache started? 2. did student elicit how bad the headache was? 3. did the student elicit the associated symptom of dizziness? 4. did student obtain medical history? 5. did student elicit and address domestic violence as a contributing factor to the patient’s presenting complaint? 6. did student provide patient with information to contact at least 1 of the 4 following methods for people with low incomes to receive financial assistance for medication needs: healthcare for the homeless, unm care program (for residents of bernallio county), applying for public assistance or low cost drugs ($4) available through wal-mart? 7. did student elicit current safety of the patient and her children? 8. did student make a legal referral for patient? 9. did student provide a medical follow up plan for patient? table 3 med-law clinical education collaboration interim outcomes: 1. best practices for legal education blog entries: http://bestpracticeslegaled .albanylawblogs.org/2008/02/06/learning-from-medical-school-about-assessment/ 2. project presentation made to the new mexico domestic violence leadership commission, sharon pino, new mexico domestic violence czar, office of the governor, barbara richardson, honorary chair. may 8, 2008. 3. peer reviewed abstract accepted and poster presented at the society for academic emergency medicine. washington, dc, may 31–june, 2008: crandall c., sedillo-lopez a., mclaughlin s., rimple d., campos g., mccarty t., assessment of a cross-disciplinary domestic violence training for emergency medicine residents and law students. academic emergency medicine. 2008;15(1);s225-s225. 4. peer reviewed abstract accepted and poster presented at association of standardized patient educators (aspe) 2008 conference: scholarship and simulation: progress & promise. san antonio, texas, june 29–july 2, 2008 5. problem-based teaching case with dv related clinical content developed for som phase i human structure function & development (hsf&d) course. block leader, paul mcguire phd. 6. peer reviewed abstract accepted and oral presentation given at the 6th international journal of clinical legal education conference, cork, ireland, july 14–15, 2008. 7. peer reviewed abstract accepted and oral presentation planned for the mid-west clinical education conference, bloomington, in, november 13–15, 2008. 8. anticipate submitting standardized patient cases for publication in aamc’s med-ed portal. reflection and assessment in clinical legal education: do you see what i see? georgina ledvinka1 introduction this paper discusses issues surrounding reflection, and assessment of reflection, in clinical legal education. the first section of the paper examines what reflection is and why it plays an important role in learning. it considers the educational theory underlying reflection and how this can help to inform the way in which reflection is employed in individual programmes. suggestions are noted for how to encourage students to reflect. there is discussion of issues concerning assessment of reflection including whether it is acceptable to assess reflection at all, and if so, how fair and consistent assessment might be achieved given its inherently subjective nature. the second section of the paper discusses a case study on assessment of reflective work within the clinical law programme at northumbria university. the study considers the implications of current assessment methods and whether they achieve acceptable levels of consistency between markers. section1: reflection and assessment what is reflection and why is it important? in clinical legal education students learn by engaging in some form of hands-on legal experience such as simulated case work, work-based placement or live client environment.2 the experience gives students an opportunity to apply and enhance the legal knowledge they gain in the lecture theatre and seminar room, and it gives context to such learning. in addition to the hands-on legal experience there is a second main element of clinical legal education, and that is reflection. reflection is a vital part of the process; it is the magic ingredient reflection and assessment in clinical legal education: do you see what i see? 29 1 georgina ledvinka is a senior lecturer at northumbria university in the united kingdom. she works as a solicitor/supervisor within the law school's clinical legal education programme. 2 according to grimes these are the current main forms of clinical legal work. see "the theory and practice of clinical legal education", grimes, r, in effective learning and teaching in law, burridge, r, et al (eds) kogan (1996) at p. 140. which converts legal experience into education. imagine two students, a and b, who are participating in a live client programme. both students are asked to interview a client for the first time. student a's interview goes well; she seems to have a natural flair for eliciting information from the client and explaining how the case is likely to progress. later, however, in discussion with her tutor and peers, when student a describes the interview she is only able to do so in the most basic, descriptive terms. she has little perception of what made the interview proceed well and cannot express her feelings about the experience. student b also has a successful first interview with her client. afterwards she meets with her tutor and peers and discusses the experience in detail, including b's own perception of the strengths and weaknesses of her performance. b relates the interview to previous experiences and explains to the group what she feels she would do differently next time. there are few who would dispute that b has undergone a higher quality learning experience than a. the difference is due to reflection. a has learned little, if anything, from having had the interview whereas b has actively rationalised the experience and related it to her existing mental framework, resulting in true learning. but what, exactly, is reflection, and why is it so important to learning? reflection is something which human beings do naturally as part of everyday life. whilst we tend not to mull over routine, day to day experiences, if something interesting or out of the ordinary occurs it is quite common to think about it afterwards, to replay the experience in our mind's eye and think what we might have done differently. we often indulge in this kind of reflection even if there is no possibility of changing what happened. sometimes we think about our experiences in order to evaluate our performance, and identify what we could have done better. on other occasions we may be confronted with some complicated or difficult scenario for which there is no immediate solution. by reflecting on the problem, even at times when we might be engaged in another activity, we can sometimes find a solution or way forward. this is good news for clinical law teachers because it means that students come to us with an innate ability to reflect. however, reflection in a clinical law context is generally not the same as the informal mulling over described above. programmes have (or ought to have) a clear vision of the way in which students must reflect in order to meet the requirements of the course, and this often involves something more formal than students may be used to. one of the challenges for clinical law teachers is to get students to recognise they already have reflective skills, which they can harness and develop in order to maximise the learning opportunity offered by clinic. dewey was one of the earliest theoreticians to appreciate the importance of reflection in learning. in 1933 he described reflection as: '... active, persistent and careful consideration of any belief or supposed form of knowledge in the light of the grounds that support it, and further conclusions to which it leads...it includes a conscious and voluntary effort to establish belief upon a firm basis of evidence and rationality.'3 30 journal of clinical legal education august 2006 3 how we think, dewey, j, d c heath and co (1933) boud, keogh and walker have said that: 'reflection is an important human activity in which people recapture their experience, think about it, mull it over and evaluate it. it is this working with experience that is important in learning.'4 moon has defined reflection in the following terms: 'reflection is a form of mental processing like a form of thinking that we use to fulfil a purpose or to achieve some anticipated outcome. it is applied to relatively complicated or unstructured ideas for which there is not an obvious solution and is largely based on the further processing of knowledge and understanding and possibly emotions that we already possess.'5 race says that: 'the act of reflecting is one which causes us to make sense of what we've learned, why we've learned it, and how that particular increment of learning took place. moreover, reflection is about linking one increment of learning to the wider perspective of learning heading towards seeing the bigger picture. most of all, however, it is increasingly recognised that reflection is an important transferable skill, and is much valued by all around us, in employment, as well as life in general.'6 what emerges from these definitions, and from the educational theory discussed below, is that reflection is a method of learning and teaching. moon makes the point that if we can encourage students to be reflective we are helping them to develop a habit of processing cognitive material which can lead students to ideas beyond the curriculum, beyond learning outcomes, and beyond their teachers.7 in other words, we are helping them to develop tools for life long learning.8 reflection is an important aspect of many, if not most, current theories of education and learning. while it may not be necessary for the clinical law teacher to have an intricate appreciation of all of these theories, it can be helpful to have at least a working knowledge of some of the more prominent ones, as they can inform us about how to incorporate and employ reflection as part of reflection and assessment in clinical legal education: do you see what i see? 31 4 reflection: turning experience into learning, boud, d, keogh, r, and walker, d (eds) kogan page (1985) at p. 19. 5 see reflection in higher education learning, by moon, j, pdp working paper 4, ltsn (2001). see also reflection and employability, moon, j, ltsn (2004) where moon refers to the work of goleman (1995) on emotional intelligence and its role in learning. 6 evidencing reflection: putting the "w" into reflection, race, p, escalate learning exchange (2002) 7 reflection in higher education learning, moon, j, op cit. 8 boon argues that reflective skills are particularly pertinent to students of law as they, especially, need to develop a perspective which enables them to ask why they should act in a particular way. he says this must involve a scholarly inquiry into action, motivation and ethics, laying the foundation of an ability to reflect not only on performance, but on the underlying rationale for action. see "skills in the initial stage of legal education: theory and practice for transformation" by boon, a, in teaching lawyers' skills webb, j, and maughan, c, (eds) butterworths (1996). 9 there is a considerable repertoire of published material in the area of educational theory which can help to guide clinical law teachers in how to incorporate reflection as part of their own programmes. this paper does not seek to reprise this body of work but rather to discuss a selection of educational theories which may be of particular relevance and application. for a comprehensive literature review of reflection see reflection in teacher education: towards definition and implementation by hatton, n, and smith, d, of the university of the university of sydney, australia (2006) which can be located at http://alex.edfac.usyd.edu.au/localresource/study 1/hattonart.html (accessed 18.09.06). an earlier (1995) version of the paper appears in teaching and teacher education, 11, (1) 33 49. our clinical programmes.9 this paper briefly discusses the seminal theories of kolb and schön and also relates clinical legal learning to constructivist learning theory. it is also worth noting that if clinical law teachers have some knowledge of the theoretical background of reflection, we can share it with our students. as discussed below, some students are not natural reflectors.10 not everyone finds it easy or comfortable to articulate their innermost thoughts and feelings about an experience. such students can be quite resistant to giving reflection, and they can find it extremely difficult when they try. if we can share some of the educational theory which underlies reflection, it can aid such students to have a broader understanding of why they are being asked to reflect and why it matters. for a student showing borderline reflecting effort/abilities, this could make all the difference.11 kolb's learning cycle kolb's experiential learning cycle can be depicted as follows:12 figure 1: kolb's experiential learning cycle13 this cycle, or spiral, represents the process by which kolb suggests students engage in learning. it is a cycle of experience, reflection, thinking and acting.14 the cycle can be entered at any point, but the learner always follows the same sequence, and indeed the learner may 'go round' once or several times as part of a learning process. 32 journal of clinical legal education august 2006 10 moon notes that just as some students find reflection a difficult thing to do, some staff find it hard to understand also. see supra note 7 at p. 10. 11 see "taking reflection seriously: how was it for us?" by maughan, c and webb, j in teaching lawyers' skills by webb, j, and maughan, c (eds) butterworths (1996), in which the authors discuss using materials on reflection and educational theory as part of their legal process course, to encourage students to have a greater appreciation of the theoretical basis for reflection. 12 experiential learning experience as the source of learning and development kolb d a, prentice-hall (1984). 13 this diagram is reproduced from gibb's publication learning by doing: a guide to teaching and learning methods, further education unit (1988) which includes examples of the application of kolb's learning cycle in various teaching scenarios. 14 or as moon describes the cycle, there is having an experience, reflecting on the experience, learning from the experience, and then trying out what you have learned. see supra note 7. applying kolb in the context of clinical legal education, we can take the example of a student who is learning how to interview clients. in this example the student will engage in a simulated interview with an actress playing the role of the client and the entire interview is to be video recorded. the cycle might be entered at the conceptualisation stage, with the student having been asked to read a list of materials on effective client interviewing. having digested the materials the student begins to form generalisations about what makes a successful interview. next he experiments with these concepts and generalisations as he prepares his plan for the interview. the interview takes place as an active experience, with the student actively testing and exploring his ideas and assumptions.15 following the interview the student engages in reflection. as teachers we can employ any number of methods to assist our students to engage in effective reflection, thus maximising the potential for learning.16 for example, in this scenario the actress could be asked to give feedback to the student saying how effective the interview was from her point of view. in a group session the student could be asked to report on the interview to his peers and give an assessment of his own performance, and this could be followed by the group watching the video recording and giving peer assessment. such feedback given in a timely manner can assist the student to elucidate and articulate his thoughts and feelings about the interview, thus facilitating effective reflection, and it can guide him towards developing his concepts about good interview techniques, which can be put into practice next time the student prepares for and carries out another interview, thus going around the cycle again. schön's theory of the reflective practitioner another theory of relevance is schön's theory of the reflective practitioner.17 schön observed that professional education tended to distinguish between knowledge and action by assuming that professional practice is merely the application of a body of knowledge to a practical situation. however, schön notes that rarely if ever are things that simple in practice; that real life tends to involve messy, indeterminate situations which professionals try to sort out by a combination of knowledge, intuition and action. schön argues that reflection is an integral part of this problem solving process. whilst we have a body of tacit knowledge which helps us to respond spontaneously and unconsciously to get through every day tasks, to deal with novel situations we need to expand our repertoire of responses. we use reflection to bring our tacit knowledge to the surface so that we can consciously confront and assess its application to the novel problem at hand.18 reflection and assessment in clinical legal education: do you see what i see? 33 15 gibb, g, supra note 13 at section 2. 16 these methods are discussed in further detail below. see also gibb, g, supra note 13. as gibb says, this kind of experiential learning is not the same as 'discovery' learning where it is hoped that learners will discover things for themselves in a haphazard way through sudden bursts of inspiration. the activity should be carefully designed by the teacher and the experience carefully analysed afterwards for learning to take place. a crucial feature of this kind of experiential learning is the structure devised by the teacher within which learning takes place. 17 see the reflective practitioner: how professionals think in action by schön, d, arena publishing (1983) and also educating the reflective practitioner by schön, d, jossey-bass (1987). 18 see maughan and webb, supra note 11. the potential for applying schön to clinical legal education is immediately apparent. in conventional class room teaching legal problems given to students tend to be nicely confined, solvable (without too much difficulty) and limited to the subject area in question. on the other hand, as practitioners and clinicians well know, cases in the 'real world' are nothing like this. almost any client seeking legal advice will have a problem which encompasses different areas of law, and the facts are never presented neatly on a plate. this means that students dealing with such situations cannot simply fall back on conventional class room teaching. they need to develop new strategies and approaches to problem solving, through the process of reflection. constructivism constructivist learning theory holds that learning is not something that happens passively, but rather that students participate actively in learning and construct their own knowledge.19 as ormrod has put it, "learning involves constructing one's own knowledge from one's own experience."20 this is done through two processes, known as accommodation and assimilation. when a learner has an experience which aligns with their internal understanding of the world they assimilate that experience into the existing framework. if an experience does not fit the existing framework then the learner re-frames his or her internal understanding of the world to accommodate what has happened. in this way the learner constructs new knowledge. constructivist-based pedagogies tend to be founded on a belief that learning is best accomplished by a hands-on approach. the idea is that learning is a personal endeavour where students engage in experimentation and draw their own discoveries and conclusions. under this model the teacher acts as a facilitator who encourages students to discover principles for themselves and to construct knowledge by working to solve realistic (or indeed, real) problems, often in collaboration with others. devries suggests that the teacher ought to engage with students whilst they are undertaking activities, wondering aloud and posing questions to promote students' reasoning.21 this notion can be applied in a clinical law context. for example, if students are engaged in a negotiation role play exercise, the teacher could be present and ask probing questions of students such as 'what does that disclosure make you think about the strengths and weaknesses of the other side's case?' or 'why do you think it is appropriate to make the opponent an offer at this stage?' such contributions by the teacher can encourage the student to reflect more deeply on his approach to the activity, whilst he is doing it, rather than being swept along by momentum and acting without conscious thought.22 when the exercise is finished the teacher could go over the questions posed during the exercise and ask the students to discuss them again, with the benefit of hindsight. thus the questions could aid the student to reflect upon the activity and reach a deeper level of learning. constructivism can help to explain the distinction between 'surface' learning and 'deep' learning.23 with 'surface' learning the student is likely to have little interest in what he is learning. his prime motivation is assessment. he will commit topics to memory for regurgitation upon assessment, often to be forgotten as soon as the exam has passed or the essay has been handed in. he does not 34 journal of clinical legal education august 2006 19 the theory of constructivism is generally attributed to piaget. see the psychology of intelligence by piaget, j, routledge (1950). 20 'educational psychology: developing learners', ormrod, j e, (4th edn) (2003). 21 developing constructivist early childhood curriculum: practical principles and activities, devries et al., teachers college press (2002). 22 this tallies with schön's concept of reflection in action. see supra note 17. 23 moon also uses the terms 'meaningful' and 'nonmeaningful' learning. see reflection and employability, moon, j, ltsn (2004). aim to achieve any real understanding of the subject matter. in constructivist terms, this person is learning in a passive sense; he makes little or no effort either to accommodate or assimilate new learning to past experience and thus he never moves beyond a surface appreciation of the topic. by contrast, the 'deep' learner often has a genuine interest in the topic. he enjoys learning; he wants to understand what he is learning about. the 'deep' learner relates what he is taught to past experience and takes the time to think about feedback in order to improve future performance. in this manner the 'deep' learner constructs new knowledge.24 it can be seen that reflection plays an important role in distinguishing between the two learning styles. whereas a 'surface' approach is marked by unrelatedness, memorisation and unreflectiveness,25 the 'deep' learner reflects on experience: 'reflection is a way of getting students to realise that learning is about drawing on life experiences, not just something that takes place in a classroom. it enables students to think about what and how they learn and to understand that this impacts on how well they do.'26 as wonderful as reflection is, it is not a cure-all which is guaranteed to turn out sensitive, ethical lawyers, or those who have particularly good negotiation/advocacy/interviewing skills, or whatever it is we particularly want our students to achieve. we must remember that reflection is a method of learning which students can employ and teachers can facilitate, but the eventual outcome is in the hands of the students and the teachers. if, for example, we wish to promote ethical awareness amongst students, we must give them concrete experience which gives rise to ethical issues, and then as teachers we must facilitate their reflection in a meaningful way. if we wish to promote technical drafting skills, we need to give students experience of drafting and then we should encourage their reflective attention towards the technical aspects of drafting.27 one of the most useful aspects of reflection is its chameleon-like versatility. reflection can be applied in any number of learning contexts, from professional skills to broader issues of social awareness and justice and even to living a fuller intellectual, emotional and professional life. indeed, as macfarlane says, 'a reflective model encourages the development of both cognitive and affective theories of moral and ethical behaviour, challenging students to integrate these into their personal belief systems as a result of their experiences instead of (at best) passively absorbing the 'rules' of professional conduct.'28 reflection and assessment in clinical legal education: do you see what i see? 35 24 see also supra note 7 at p. 5. 25 "diversifying assessment and developing judgment in legal education" hinett, k, and bone, a, in r burridge et al (eds) effective learning and teaching in law, kogan page (1996) at p. 54. 26 developing reflective practice in legal education, hinett, k, ukcle, ltsn, at p. 6. 27 the decision about what kind of lawyers we are, or should be, trying to produce from law clinics is probably down to individual teachers or institutions and is, in any event, outside the scope of this paper. 28 "pedagogic principles, certification needs and the assessment of "reflective practitioners"", macfarlane, j, international journal of the legal profession 5(1) 1-23 (1998). and there is an added benefit of encouraging students to reflect. by engaging in reflection students come to have a better understanding of their own cognitive functioning, making them more aware of how they learn. this increased selfawareness of learning, or metacognition, is correlated with better learning.29 in other words, by encouraging students to reflect we are helping them build for themselves a self-awareness which will promote more successful learning in the future.30 how to promote student reflection now that we know what reflection is, and what its potential benefits are, it is useful to consider some practical ways in which clinical law teachers can encourage students to reflect. a) course design at a fundamental level, the ways in which courses are designed can have a significant impact on whether effective reflection is likely to occur. for example, in their legal process course maughan and webb took the view that in order to learn, students had to know how they were learning. accordingly maughan and webb devoted a number of workshops to learning theory as part of which students were required to examine ideas such as schön's concept of reflection, behaviourist and cognitive learning theories and discrepant reasoning.31 by having this theoretical background it was believed that students would have greater understanding of reflection and why it formed part of their course. b) teacher knowledge it is beneficial if the teacher has knowledge of the educational theory regarding reflection. c) arrangement of class rooms the way in which a class room is arranged can have a significant impact on whether reflection is forthcoming. compare the conventional set-up with students seated behind rows of desks and the chalk-wielding teacher standing at the front, with a small group setting where students and teacher are ranged equally around a table, or better still, in a circle with no furniture to divide the group. immediately the latter does away with traditional power props; the teacher is present at the same level as students, and the circle arrangement encourages discourse amongst the group. d) teacher to act as facilitator the role adopted by the teacher should be that of facilitator, rather than playing the master who can give the answers on every issue.32 36 journal of clinical legal education august 2006 29 moon refers to two studies, one by ertmer and newby in 1996 (evidence that good learners have better metacognitive processes than poor learners) and one by main in 1985 (study skills programmes that support learners' awareness of their learning processes seem to be more successful than those which focus on techniques). see supra note 7 at p. 7. 30 in addition to these student centred benefits of reflection, there are other wider advantages to be had from encouraging reflection amongst students. hinett, supra note 26, and race, supra note 6, both refer to current uk government agendas for widening participating in higher education, which mean that higher education will rapidly have to cater for a wider and more varied population with diverse cultures and differing learning needs and capacities. hinett argues that in this context reflective practice offers a flexible framework in which students can make sense of their own development, and it can encourage them to become lifelong learners. race comments that with increased attention to student retention in higher education, reflection can be one of the most powerful vehicles for alerting teaching staff to 'at risk' students, so that appropriate compensations and adjustment may be made to reduce the risk of withdrawal from higher education. 31 see supra note 11. 32 indeed to be an effective facilitator the teacher should resist the temptation to give answers, and try to guide the students towards finding them for themselves. see webb's comments on his view of the facilitator's role at p. 268 of maughan and webb, supra note 11. e) learning environment reflection can be further encouraged by the creation of a supportive and non-judgmental learning environment. if students know there are no right and wrong answers in reflection, and that they can be free to say things which might otherwise appear stupid or 'un-cool' in another setting, it can be enormously liberating and conducive to quality discussion.33 f) small groups having students work on problems or cases in small groups can further facilitate reflection. as students become more comfortable working closely with peers there is greater opportunity for peer and self assessment. further to these 'background' considerations there are the actual methods which can be employed with students to promote reflection.34 these include: g) self and peer assessment, which boud describes as the involvement of students in identifying standards and/or criteria which apply to their work, and in making judgments about the extent to which they have met these criteria and standards.35 with self assessment the student can contemplate not only whether the work he has produced meets the relevant standards and criteria, but also the process of learning involved in producing the work, thereby promoting metacognition as discussed above. h) learning journals, logs and diaries, which may be structured or unstructured. students can be encouraged to use these items to reflect regularly over a period of time with the aim of improving or supporting learning.36 i) oral presentations including some reflective element. j) reflective exercises, to encouraging effective reflection. k) reflection on work experience, work-based learning, placement learning etc. l) portfolios, which generally include a reflective element. m) personal development planning, which the quality assurance agency has defined as a structured and supported process undertaken by an individual to reflect upon his or her own learning, performance and/or achievement and to plan for their personal, educational and career development.37 within these structures it can be helpful to give students more detailed guidance about how to reflect. moon suggests a two stage guidance process may be helpful for students: an initial presentation stage to introduce ideas about reflection, and then a second stage to focus on deepening the process of reflection.38 the first stage might involve consideration of points such as what reflection is and how it differs from more familiar forms of learning, why reflection is being reflection and assessment in clinical legal education: do you see what i see? 37 33 although, as maughan and webb note, supra note 11, it should be a supportive group, not a support group. the function is to facilitate learning, not just make people feel better. 34 see hinett, k, supra note 26, and moon, j, supra note 7. 35 enhancing learning through self assessment, boud, j, herdsa (1995). 36 as moon observes, learning journals have been used successfully in most disciplines including the sciences and mathematics. see learning journals: a handbook for academics, moon, j, kogan page (1999). if students are required to submit reflective written material later in the course, for example as part of a portfolio, learning journals, logs and diaries can form useful raw material on which students can draw. this would involve secondorder reflection, as discussed below. 37 guidelines for he progress files, quality assurance agency (2001) 38 moon, j, supra note 7 starting at p. 10. used to facilitate the relevant area of learning, why it is acceptable to write reflective work in the first person, and examples could be given to the group of good and poor reflective writing, in order to generate discussion.39 the second stage is based on a developing awareness of knowledge and how it is constructed, including the way in which events can be conceived of differently according to emotions and frames of reference. for example, students could be asked to reflect upon a legal dispute from the point of view of both claimant and defendant. moon also refers to second-order reflection, where a student is asked to look through previous reflective work and write a reflective overview.40 race comments that it is probably unwise to attempt to 'teach' reflection. he suggests that the process can be illustrated but in the final analysis reflection remains an individual act in most circumstances.41 race argues that the most efficient way to help people reflect, and to evidence their reflection, is by providing them with questions as devices to help them to focus their thinking, and to direct their thinking towards those areas of work where reflection can pay highest dividends. he suggests that deep reflection can be generated by clusters of questions. these might include past, present and future-tense questions, such as: 1. what worked really well for you? (past tense) 2. why do you now think that this worked well for you? (present tense) 3. what are you going to do as a result of this having worked well for you? (future tense) alternately clusters of questions can comprise a scene-setting starter, and the sub-questions which follow should be probing or clarifying questions, intentionally leading towards deeper or more focussed reflection. race notes that often such clusters begin with interrogatives such as 'who', 'what', 'when', 'where', why' and 'how'. some examples given by race include: • what was the most boring or tedious part of doing this assignment for me? can i see the point of doing these things? if not, how could the assignment have been re-designed to be more stimulating and interesting for me? • what have i got out of doing this assignment? how have i developed my knowledge and skills? how do i see the payoff from doing this assignment helping me in the longer term? • what are the three most important things that i think i need to do with this topic at this moment in time? which of these things do i think is the most urgent for me to do? when will i aim to start doing this, and what is a sensible deadline for me to have completed it by?42 38 journal of clinical legal education august 2006 39 following the first stage it could be helpful to ask each student in the group to produce a short document setting out his or her views on how to approach reflection and what makes good reflection, or any of the other topics covered in stage one. rather than the teacher providing a hand-out, this will encourage students to take ownership of the material as well as increasing their understanding of reflection. 40 moon suggests this can be done by way of a double entry journal. students write only on one half of a vertically divided page. they leave the other space blank until another time, when they go through the initial material writing further comments that emerge from their more coherent overview of the initial work. see moon, supra note 7 at p. 14. 41 this accords with the view that reflection is a method of teaching and learning rather than a substantive topic with right and wrong answers. to the extent that it is possible to teach a method of learning, reflection is capable of being taught, however, race's approach to teaching reflection is in itself facilitative by encouraging students to construct the method for themselves through use of clusters of questions. see supra note 6. 42 race, p, supra note 6. in addition to occasions when students are required to engage in reflection as part of their course, we can encourage them to reflect whenever they have a particularly acute learning experience. say, for example, a student prepared diligently prior to representing a client at an employment tribunal hearing but, despite her best efforts, the hearing was a disaster. as soon as possible after the event the student should be encouraged to reflect on the experience. the reflection could take place in a small group setting with the student's peers and tutor, where the student could discuss her perceptions of what went wrong and how she felt about it. other students could be encouraged to offer constructive comments. in addition, the student could make a written record of her reflection. this method would encompass several of the reflection mechanisms discussed above, with the added benefit that capturing all of this contemporaneously is likely to focus the student's mind and maximise the potential for learning. should we assess reflection? on a traditional undergraduate law degree, assessment of substantive areas of law such as tort or property focuses on what the student knows. the student's knowledge is adjudged against a set of learning outcomes. assessment on a clinical legal education programme is subtly, but importantly, different. not only are we assessing the student's substantive knowledge and skills, but also the learning journey he or she has taken from the beginning to the end of the course. in order to assess the learning journey we must have some evidence that it took place and what it encompassed. reflection, especially written reflection, provides this evidence. as mentioned earlier in this paper, reflection is a normal human activity but many students find it challenging to engage in the more formalised type of reflection which is often required as part of a clinical law programme. although reflection need not be structured or formal compared with traditional academic work, there is generally an obligation for students to reflect in a disciplined manner, often at set times or occasions, and there is also a requirement for students to evidence their reflection usually in writing. some students find it extremely difficult and feel very selfconscious engaging in this kind of writing, and it can be a challenge for clinical law teachers to coax good quality reflection out of such students. on the clinical legal education programme at northumbria university43 we try to identify any problems with reflection early in the academic year by requiring students to submit a sample piece of written reflection for formative feedback. the idea is to let students know, early, if they are reflecting in an appropriate manner or if they need to adapt their approach. clinic staff report that from these early sample pieces of reflection a substantial proportion of students, even good students, perhaps as many as one fifth overall, fundamentally fail to grasp what reflection is and how it can be evidenced. the most common error seems to involve submitting a piece which is purely descriptive of the experience on which the student has chosen to 'reflect', and which contains little or no qualitative analysis. even where students seem to grasp what is required, an reflection and assessment in clinical legal education: do you see what i see? 39 43 northumbria university offers a 'combined' law degree which is unique in the uk. it enables students to complete, within four years, their undergraduate law degree as well as their postgraduate professional qualification as solicitor or barrister. at the present time clinic is introduced during the third year of the course, during which students engage in simulated legal cases. during the fourth (final) year of the course all students, currently around 114 in number, participate in a full clinical model with students offering legal advice and representation to members of the public in a wide range of areas including employment, family, criminal appeals, personal injury, consumer, general civil disputes, welfare benefits, education, and construction law. even higher percentage (perhaps as many as half of them) initially seem not to appreciate why they are being asked to reflect and what benefit reflection is ultimately likely to have in terms of their learning.44 regrettably, for many students learning is driven largely by assessment. if reflection is not to be assessed there must be a risk that some students will view it as less important than assessable work, and therefore potentially expendable.45 the risk is likely to be more acute amongst students who struggle with reflection, either because they have trouble doing it or cannot see the point. moon suggests that if we see value in students' reflective work and they will not engage in unassessed work, then reflection will need to be assessed in some way.46 accordingly there seem to be good arguments for making reflection assessable. not everyone agrees with this view. bolton refers to a seminar given by boud at sheffield university in february 2001, during which he argued that assessment is inappropriate because it will stultify or even destroy 'raw reflection', including students' confidence in expressing themselves freely and exploratively, and that it may lead to unethical levels of disclosure and confession.47 the uk centre for legal education (ukcle) notes that assessing reflection is a sensitive issue because it is highly personal and developmental and because it can raise difficulties around parity and validity of assessment.48 whilst recognising the validity of these concerns, it is possible to assess reflection in a manner which does not significantly risk destroying the openness and freedom of students' raw reflection. this can be done by directing assessment towards reflective work which draws upon, but does not necessary include (unless it is a student's wish to do so), raw reflection. this way the student benefits from recording his or her raw reflection initially, revisiting it at a later date to mull over the experience again, and then preparing the reflective piece for assessment.49 winter et al comment that the various difficulties described above are capable of being resolved, and are not in any event so very different from the problems of academic assessment in general. they say that if assessment is based on professional criteria and if examiners spend time sharing and discussing their responses to groups of texts, judgments can be agreed as to whether work fulfils the given criteria and with what degree of success.50 moon agrees. she says that technically the issues surrounding assessment of reflection are no more difficult that those involved in the assessment of anything. although staff may have differing views about reflective practice the potential for unfair diversity of assessment can be minimised by having staff sessions in which understandings, proposed methods, and assessment techniques are explored and approaches 40 journal of clinical legal education august 2006 44 this early lack of understanding about why students are being asked to reflect seems to lend weight to the approach of maughan and webb, who have tackled the situation by having sessions in their legal process course devoted to the educational theory surrounding reflection. see supra note 11. 45 see further hinett, supra note 26 at p. 40, and hinett and bone, supra note 25 at p. 57. 46 see moon, supra note 7. 47 reflective practice: writing and professional development, bolton, g, paul chapman (2001) at p. 83. 48 http://www.ukcle.ac.uk/resources/trns/clinic/nine.html (accessed on 17.09.2006) 49 this is the approach taken by bolton, supra note 47 at p.83. similarly at northumbria university there is no requirement for students to submit raw reflection for assessment. moon comments that greater learning is likely to result if a student is required to 'secondarily' reflect on their initial reflection. see reflection and employability moon, j, learning & employability series, ltsn (2004) and the module and programme development handbook moon, j, kogan page (2002a). 50 see bolton, supra note 47 at p. 84 and professional experience and the investigative imagination: the art of reflective writing, winter, r, buck, a, and sobiechowska, p, routledge (1999) at p. 148. agreed.51 the quality assurance agency for higher education in the uk has published a code of practice for the assurance of academic quality and standards in higher education.52 clearly, if reflection is to be assessed, it must be done so in a way which meets the requirements of the code especially as to clarity and consistency. amongst other things there must be clearly expressed learning outcomes, which say what is required in terms of reflection, and the criteria for assessment of the reflection should relate to these learning outcomes.53 a tension emerges between the need to prescribe clear criteria for assessment, and the inherently subjective nature of reflection which is personal, unique and unboundaried. boud, who is opposed to assessing reflection in the first place, argues that the unboundaried nature of effective reflective practice renders it inappropriate for an assessed formal learning context, where clear boundaries are necessary.54 others acknowledge the tension but do not view it as a bar to assessing reflection. maughan and webb say they have identified guidelines and criteria for assessing their students' reflective work, but not ones which are based on detailed written standards or competencies. they say their approach of not being too prescriptive has led to some extremely innovative work from their students, including a video reconstruction of a case, students presenting their experiences in a quiz show format, and a video diary recording the progress of students' work on a case. maughan and webb comment, however, that this enabling approach is difficult to incorporate into assessment criteria which are flexible enough to reflect what are often very diverse presentations from across the same year group.55 burridge raises an interesting point, namely, which part should the student reflect upon when faced with a complex case? he notes the view expressed by blasi that in guiding students as to what they should be reflective about, the tutor should point out the most critical aspects of a situation or problem. he also notes the alternate view, that the choice should be left to the student to discover from experience.56 when discussing cases with students on a live client programme, it is inevitable that attention will focus on the most challenging or pressing aspects of the case at the given time. generally the student perceives importance and urgency in the context of needing to deal with an issue on a practical, case management level. the appropriateness for reflection tends to be perceived afterwards, once the crisis has passed. thus the most salient aspects of cases tend to present themselves for reflective attention. if written reflection is to be assessed, what criteria should be applied in terms of structure, grammar and punctuation? should we expect students to submit a polished piece of work or should we accept something less refined? although boud and walker suggest that reflective writing should be judged "in terms of criteria for the recognition of reflective writing" rather than by standard academic writing conventions,57 experience on the live client programme at northumbria reflection and assessment in clinical legal education: do you see what i see? 41 51 see moon, supra note 23. 52 http://www.qaa.ac.uk/academicinfrastructure/codeofpr actice/section6/default.asp (accessed on 18.09.2006) 53 see moon, supra note 23. 54 bolton, supra note 47 at p. 83. 55 maughan and webb, supra note 11 at p. 287. 56 "learning law and legal expertise by experience" by burridge, r, in effective learning and teaching in law, r burridge et al (eds) kogan page (2002) at p. 44. hinett, supra note 26, at p. 42, refers to boud's observation that it is naïve to expect students to restrict their reflection to matters outlined by the tutor. 57 'promoting reflection in professional courses: the challenge of context', boud, d, and walker, d, studies in higher education 23(2) 191 206 at p. 194. university suggests there is some degree of parity between reflective work which is clearly expressed and meets normal academic writing standards, and that which shows depth of thought and perception. an abundance of spelling errors, and poor structure and layout, are usually indicative of a student who has rushed his reflection and failed to see the point, and as a result submits a fairly poor piece of work.58 it may of course turn on what type of reflection is being assessed. if one is assessing 'raw' reflection such as learning diaries or journals, it would make sense to make some allowance for errors of expression and grammar. finally, there is the 'old chestnut' of how to assess the student who performs brilliantly with her live client work but turns in a relatively shallow piece of reflection, and conversely, the student who is clueless when it comes to dealing with cases but submits an excellent piece of reflection analysing why it all went wrong. in the former situation (good performance, poor reflection) it seems appropriate that the poor reflection should warrant a substantial reduction in the student's overall grade. as discussed above, if a student is unable to perceive the reasons for her good performance and cannot extrapolate any lessons for the future, the quality of her learning experience is thereby downgraded. this should be reflected in her assessment. with the converse situation (poor performance, good reflection) it is sometimes more difficult to know how grade a student's work. obviously, if a student has performed badly he deserves a relatively low grade, but ought not we give some kind of upgrade to take account of excellent reflection? if not, what is the point of assessing the reflective work? then there are further questions: to what degree should excellent reflection be able to 'remedy' poor performance? is it fair for this kind of student to score better overall than another whose live client work was much better but whose quality of reflection more average? inevitably such issues will persist wherever reflection is assessed alongside performance. what are we assessing, when we assess reflection? if we make the decision to assess students' reflective work, it is pertinent to consider exactly what we are intending to assess. this depends on the purpose of the reflective work and what it is intended to achieve. as argued above, reflection is a method of teaching and learning which can be employed to great effect in a wide range of educational scenarios. by being clear about the purpose for which students are being asked to reflect in any particular circumstance, we can begin to formulate appropriate assessment criteria. moon comments that a crucial decision in the development of assessment criteria for reflective tasks is whether we are assessing the content of the reflective learning or the reflective process itself.59 say, for example, clinical law students are being assessed on drafting skills and as part of the course requirements they are required to submit a reflective journal which records the development of those skills over the course. the main focus of this assessment will be students' drafting skills, with the reflective journal forming part of the evidence. on the other hand, learning outcomes may state that students will become proficient in reflective practice, in which case the assessment should focus on the reflective process as well as the content. this raises the question of 42 journal of clinical legal education august 2006 58 this can of course be clarified from the outset by making explicit to students the requirements as to use of language, structure and presentation. see moon, supra note 7 at p. 15. 59 supra note 23 at p. 13. how the reflective process ought to be assessed. it is sometimes said of reflection that 'you know a good one when you see it' but obviously we need to be more rigorous than this if we are to identify fair and consistent standards for assessing reflection. to a certain extent this can be circumvented if a decision is taken to assess reflection on a 'competent' or 'not yet competent' basis. then all that needs to be established are base-line criteria for a pass, avoiding difficult judgments about degrees of success and awarding of grades. if, however, we decide to grade reflection then it is necessary to identify clear guidelines for awarding grades. hatton and smith, working in the context of teacher education, have developed a system of criteria for the recognition of evidence for different types of reflective writing. they identify four categories as follows, which are applicable to reflective work produced in a clinical law context:60 1. descriptive writing this is not reflective writing. it may take the form of a description of events that occurred or a report of literature. there is no attempt to provide reasons or consider justifications for events. 2. descriptive reflection this has a reflective element. there is a description of events and some attempt to provide reasons and/or justifications but in a reportive or descriptive way. there may be one perspective or rationale identified (for example, 'i chose this problem solving activity because i believe that students should be active rather than passive learners') or there may be some recognition of alternative factors and perspectives (for example, 'tyler (1949), because of the assumptions on which his approach rests suggests that the curriculum process should begin with objectives. yinger (1979), on the other hand argues that the 'task' is the starting point'). 3. dialogic reflection this demonstrates a 'stepping back' from the events or actions being discussed to reveal a different level of mulling over, and the author may engage in discourse with him/herself. such reflection is analytical and/or integrative of factors and perspectives and may recognise inconsistencies in attempting to provide rationales and critique. for example: 'while i had planned to use mainly written text materials i became aware very quickly that a number of students did not respond to these. thinking about this now there may have been several reasons for this. a number of the students, while reasonably proficient in english, even though they had been nesb learners, may still have lacked some confidence in handling the level of language in the text. alternatively a number of students may have been visual and tactile learners. in any case i found that i had to employ more concrete activities in my teaching.' 4. critical reflection this demonstrates an awareness that actions and events are not only located in, and explicable by, reference to multiple perspectives but also that they are located in, and influenced by, multiple historical and socio-political contexts. for example: 'what must be recognised, however, is that the issues of student management experienced with this class can only be understood within the wider structural locations of power relationships established between teachers and students in schools as social institutions based upon the principle of control'. reflection and assessment in clinical legal education: do you see what i see? 43 60 see hatton and smith, supra note 9. moon's work on assessment of reflective writing in a clinical law context builds upon the work of hatton and smith. moon's is a three stage analysis which identifies features that can be indicative of different levels of reflection:61 a. a descriptive account which contains little reflection: • it describes what happened, sometimes mentioning past experiences, sometimes anticipating the future, but all in the context of an account of the event • there are some references to the author's emotional reactions, but little or no exploration of how these relate to her behaviour • ideas are taken on without questioning them or considering them in depth • the account is written only from the author's point of view • external information is mentioned but its impact on behaviour is not subject to consideration • generally one point is made at a time and ideas are not linked b. an account which shows evidence of some reflection: • there is description of an event, but where there are external ideas or information, the material is subjected to consideration and deliberation • the account shows some analysis • there is recognition of the worth of exploring motives for behaviour • there is a willingness to be critical of action • relevant and helpful detail is explored where it has value • there is recognition of the overall effect of the event on self in other words, there is some 'standing back' from the event • however, there is no recognition that views can change with time and more reflection, i.e. that that frames of reference affect the manner in which we reflect at a given time. c. an account which shows quite deep reflection: • there is evidence of self-questioning, possibly including internal dialogue. there is deliberation between different views of the author's own behaviour • the author takes account of the views and motives of others and considers them against her own • the author recognises how prior experience and thoughts interact with the production of her own behaviour • there is clear evidence of standing back from an event • the author may indicate a clear divergence between the reflective process and the points she wishes to learn • there is recognition that the personal frame of reference can change according to the emotional state in which it is written, the acquisition of new information, the review of ideas and the effect of time passing. 44 journal of clinical legal education august 2006 61 supra note 7, appendix 1. it can be seen that effective reflection in a clinical law setting involves students engaging in an assessment of themselves in their complex new role as lawyers. inevitably, and quite constructively, much of the focus will be on students' skills and personal performance seeking to identify areas for improvement. however, the best quality reflection will move beyond this with students considering themselves and their actions in a wider holistic sense encompassing their role in the legal profession and society at large. an important thing to note is that there is no universally accepted set of criteria for assessment of reflective work. reflective tasks are set in order to achieve different purposes, and therefore assessment criteria need to be tailored accordingly.62 if the purpose of reflection is to become adept at the reflective process itself, then the valuable analysis of hatton and smith, and moon, discussed above can lend assistance to clinical law teachers in formulating criteria which are applicable to their own particular circumstances. can assessment of reflection ever be fair? so far we have discussed the personal and subjective nature of reflective work. it has been argued that despite its nature, reflective work is capable of assessment provided that staff are clear about the purpose for which the reflective task has been set, and they develop assessment criteria accordingly. if the reflective process itself is to be assessed, the work of hatton and smith, and moon, above, provides a useful starting point for developing assessment criteria. whilst this aims to introduce objectivity into the process of assessing reflection, the question nonetheless arises whether the process can ever be truly objective and fair because the teacher marking the reflection often has a close working relationship with the student which could, consciously or unconsciously, affect the grading of their work. the assessment of clinical work therefore contrasts significantly with the assessment of most university work, where there is a general trend towards anonymous marking. reflection in a clinical legal programme usually takes place within a framework where teachers and students develop a close working relationship over a period of time. students' work is often assessed by those teachers according to the first hand knowledge they have of the students' performance over the programme. grimes argues that the intensive nature of clinical work gives the supervisor and student a rare opportunity to demonstrate to each other their roles in, and understanding of, the assessment process.63 however, it could also be argued that the close working relationship between teacher and students gives rise to a possibility of bias and unfairness. say, for example, a student has annoying personal habits, might these subconsciously influence the teacher towards giving him a lower mark than is warranted? or if a teacher happens to get on particularly well with another student, might he receive a higher mark than is fair? at the very least the close supervision implicit in clinical programmes makes objective assessment difficult.64 one way to try to surmount these subjective difficulties on assessment is to have a system of double marking reflective work, so that if the close relationship between teacher and student has reflection and assessment in clinical legal education: do you see what i see? 45 62 supra note 7 at p. 15. moon comments that it is entirely reasonable to engage students in the process of developing or fine-tuning assessment criteria, if not for their own work, for the work of next year's students. 63 supra note 2 at p. 159. 64 supra note 2 at p. 152. in some way unfairly influenced the assessment of the student's work, this can be neutralised upon appraisal by an unconnected second marker. as discussed below, a double marking system can also have the added benefit of ensuring consistency in assessment of reflective work between different teachers on the programme.65 section ii: assessment case study the first part of this paper has considered the nature of reflection, concluding that reflection is a valuable method of teaching and learning which can be employed in numerous educational contexts. the first part has also considered issues relevant to assessment of reflective work. the remainder of this paper focuses on a case study within the context of the clinical law programme at northumbria university. the study considers issues surrounding double marking and asks whether current methods for assessment of the programme's reflective essay achieve acceptable levels of marking consistency. reflection within the live client programme at northumbria university all students undertaking the final year of the 'combined' law degree at northumbria university participate in the live client programme known as the student law office (slo), where students provide legal advice and representation to members of the public in a wide range of legal cases.66 students are divided into 'firms' of four to six individuals and each firm is supervised by a practising solicitor/barrister or welfare benefits officer. currently there are around 114 students and 16 supervisors involved in the programme. reflection, both formal and informal, occurs at many points during the slo programme. each firm meets weekly with its supervisor, to discuss and share progress of the firm's cases and to talk about any problems or challenges the students have encountered. so as well as providing a forum for deciding on how to proceed with cases, firm meetings are designed to give students an opportunity to reflect with their peers and supervisor on anything they wish to discuss. the format of firm meetings is deliberately unstructured in order to promote reflection. because the students are not pressured to raise or disclose anything they are not comfortable with, they tend to open up quite naturally to share and reflect upon their experiences.67 none of this informal reflection is assessed. students are required to submit a portfolio of their work for assessment at the end of the year. the portfolio must contain evidence of certain key areas of practical work over the course of the year, together with reflection on those areas. for example, one key area of practical work is written communications. students must include copies of all substantive written communications they have produced, and a reflective commentary which refers to three specific items (such as a letter of 46 journal of clinical legal education august 2006 65 hinett and bone, supra note 25 at p. 66, discuss consistency in assessment and they say that with planning, it ought to be possible to achieve intrareliability of assessment within a single faculty. they refer to a need for law teachers to discuss assessment and what is valued in their teaching. the ukcle has funded research into consistency of marking across law schools, further details of which can be located at http://www.ukcle.ac.uk/research/projects/mitchell.h tml (accessed 18.09.06). 66 see supra note 43. 67 in addition to weekly firm meetings, students often meet with each other and/or with their supervisor during the week to discuss cases and this provides a further opportunity for informal reflection. advice, a witness statement and a letter to an opposing party setting out a case) and which: (1) compares the different approaches the student took when preparing each of the three items, and (2) discusses the development of the student's drafting and writing skills throughout the year and his or her strengths and weaknesses in this area. seventy percent of students' overall grade for the slo comes from assessment of their practical work, as evidenced by their portfolios. the remaining thirty percent comes from a 3,500 word reflective essay based upon students' experience of live client work. assessment criteria for the essay say: 'there is no set title for the essay element of the slo assessment. this is to allow you scope to select a subject area that has affected your own particular experience within the slo. the essay should lead you to consider the work you have done in the slo in its wider context. it is not a summary of your work through the year. you should pick a subject area and relate it to your slo experiences. for example you may wish to look at the practical effect of an area of academic law on the conduct or outcome of a case or you may wish to look at the role of the slo in the wider context of provision of legal services. your discussions in firm meetings may have raised a number of appropriate issues. like any other essay it should be structured and informed.' although there is no set structure for the essay, by far the most common approach taken by students is to talk about a case they were involved in, describing the way the case progressed and the outcome, and how this affected them. most students discuss their feelings about the case and some consider wider social and political issues such as potential areas for law reform. what is not wanted is a dry piece of academic writing. while there may be some discussion of substantive law, the idea is for students to use their personal experiences in the slo and the reflective skills they have developed over the course of the year to facilitate discussion of wider issues concerning the legal system. criteria for assessing the essay the essay is assessed by the student's own supervisor and is given a grade out of 100. to promote a consistent approach between supervisors, grading criteria have been discussed and it has been agreed that essays are often characterised as follows: • first class (70 or more) an outstanding piece of work which stimulates the marker's interest in the topic. draws on the student's experience in the slo but goes considerably beyond. presentation, structure, spelling and grammar immaculate or very good. exciting, new ideas raised and analysed in a cohesive and persuasive manner. student's emotions often not referred to, or only in passing. mature appreciation of time frames, points of reference and wider socio-political issues. workable law reform proposals often identified and discussed. • high pass (60 to 69) an interesting and stimulating essay which draws upon the student's slo experiences and transcends them. well structured and well argued, usually with a central theme linking discussion of cases. student stands back from the events described to see the bigger picture/wider ramifications. emotions may be referred to but are not the focus. descriptive element is present, but minor, with analysis being the focus of the essay. links are reflection and assessment in clinical legal education: do you see what i see? 47 made between the student's slo experiences and the world at large. appreciation of different frames of reference and standpoints. • low pass (50 to 59) the essay focuses entirely on the student's experiences in the slo. content is largely descriptive with only a small amount of analysis and reflection. some identifiable structure but not very good. the student's emotions are discussed, quite often as the focus of the piece, however there is only minimal understanding of effect of emotions upon the student's behaviour. makes links between different cases or ideas but in a rudimentary way. analysis is simplistic and uninformed. little or no consideration of wider ramifications. no awareness of frames of reference and the impact of time upon qualify of reflection. • fail (50 or less) exceeds or falls significantly short of the word limit. little or no structure. may be unconnected with the student's experience in the slo. content is merely descriptive, e.g. a report of all the cases the student worked on. may be some reference to the student's emotions but no discussion of how they influenced his or her behaviour. no attempt to make links. no attempt to consider or analyse events or to draw conclusions. no awareness of alternative viewpoints or wider issues. often characterised by sloppy presentation with little or no attention to spelling, grammar, use of language. no central theme or argument. it can be seen that these criteria for assessment of the slo essay are broadly reflective of the analysis of hatton and smith, and moon, as discussed above.68 method of assessing the essay with large numbers of students and staff involved in the slo programme it is important to aim for consistency in assessment, so that a student can be confident her essay will receive a fair grade regardless of the identity of her supervisor. accordingly once students' essays have been graded by their own supervisors, some are selected for double marking by a different supervisor. these include all first class essays, all fails, any bare passes, any essays that supervisors have asked to have double marked, and one or two essays from each supervisor.69 when an essay is marked for the first time by the student's supervisor, the supervisor completes a brief report which includes the names of the student and supervisor, the grade given for the essay and the supervisor's written comments. some supervisors also annotate written comments on the essay itself while they are marking. 48 journal of clinical legal education august 2006 68 there is one interesting observation involving the emotional content of the essay. moon, supra note 7 at pp. 13 14 and supra note 23 at p. 5 suggests that it is an important aspect of reflection to encourage students to refer to their emotional reactions and to perceive how this can influence their behaviour. looking at the slo essay overall there tends to be a great deal of reference to students' emotional reactions to cases, but often students do not analyse this or seek to draw any conclusions such as whether emotion had any effect on their conduct of the case. for this reason many of the essays which spend a significant amount of time discussing the student's emotions tend to be awarded relatively low grades. if the student refers to emotion with some degree of perception about how it has influenced his or her behaviour, that tends to be indicative of a better quality essay, but the first class papers rarely seem to refer to emotion much at all focussing instead of wider issues. 69 these tend to include essays which have been marked at the border of a grading band (i.e. given a grade of around 60 or around 70), or any right in the middle of a band (i.e. given a grade of around 55 or 65). if an essay is selected for double marking, the double marker is given the essay together with the first marker's report. based on their own assessment of the essay, and the first marker's report, the double marker can retain the grade given by the first marker or substitute their own grade. whilst this process aims to promote consistency and fairness in assessment of the essay, there may be some potential shortcomings. earlier in this paper it was discussed how the intensive nature of clinical work can make objective assessment difficult. this could be true of the slo essay, which is marked in the first instance by the student's supervisor. although having some essays double marked is designed to further objectivity in the assessment process, might the reverse in fact be true? the double marker knows not only the student's identity, but also the grade given by the first marker and his or her written comments on the work. this could make it difficult for the double marker to carry out his function objectively. for example, if the double marker is a new member of staff, he might lack the confidence to change a grade given by an experienced, senior colleague. it was decided to design and carry out a case study based on assessment of the slo reflective essay in order to examine this issue in greater detail. the case study the case study was initially designed to consider one main question: whether double markers are influenced in their assessment of slo essays by information available to them at the time of double marking. at discussed above, the double marker knows the name of the student and the identity of the first marker, and also has an assessment report showing the grade given by the first marker and his or her comments on the essay. if this information was not available on double marking an essay, would the grade given by the double marker be more or less consistent with the grade given by the first marker? it was decided to look at this issue by taking a group of essays which had been double marked under usual slo procedures, and then re-marking them under blind marking conditions, and then comparing the two sets of results. at the end of the 2003/04 academic year, 101 reflective essays were submitted for assessment in the slo, of which 35 were selected for double marking based on the usual slo criteria discussed above. under the case study conditions, all 35 of the essays were subjected to a further round of blind marking, which took place towards the end of 2004. the method for getting the essays ready for blind marking was as follows. each of the essays was typewritten, so there was no potential problem of students being identified by their handwriting. the essays were photocopied, then 'white out' was applied to the copies where required to obliterate any handwritten comments or other markings which had been made by the first markers. care was taken, where possible, to delete the markings in a manner which concealed that they had been made at all. in addition, 'white out' was used to conceal students' names, first markers' names, and the grades given by first markers where these had been written on the essay. after this, the essays were photocopied again to hide the use of 'white out'. at this point the essays were considered to be ready for blind marking. of the five supervisors who had been involved in the double marking, the author excluded herself, which left four markers. it was ensured that none of the four was given an essay they had previously seen or discussed, and then the 35 papers were randomly assigned between them. markers were reflection and assessment in clinical legal education: do you see what i see? 49 given instructions which asked them to assess and grade the essays in exactly the same way as they would ordinarily double mark a slo essay. they were also asked to provide brief written comments giving their views about the current marking procedure. results in this results section, comparison is made between the grades given in respect of the essay papers when they were double marked at the end of the 2003/04 academic year, and the grades which were given when the same papers were later blind marked under the case study conditions. first, results were analysed to see whether grades tended to go up or down as a result of blind marking. it was found that of the 35 papers, grades went up in 18 cases (51%) and down in 14 cases (40%), and there was no change of grade in the remaining 3 cases (9%). the next question was, to what degree did the grades given upon blind marking vary from the grades given upon double marking. the following results were found: tribe states that 5% is the percentage variation which is generally accepted by commentators as being the norm between staff markers.70 adopting this figure, the results show there was an acceptable degree of variation in the case of 22 essays (63%), and a higher than acceptable degree of variation for 13 essays (37%). this means that for more than one third of essays, the degree of variation was higher than the acceptable norm of 5%. looking at the papers where there was more than 5% variation, it was asked whether there was a correlation between the degree of variation and the marker's subject knowledge of the essay topic. put another way, would the grade given by the blind marker be more likely to match the grade given by the double marker, where the blind marker had knowledge of the subject area of the essay (i.e. where there was a 'subject match')? it was found that where there was a subject match, only two out of 13 papers had a degree of variation above 5%. however, where there was no subject match, 11 out of 13 papers had more than 5% variation. this suggests (unsurprisingly) that the subject knowledge of the marker is important when marking an essay: that it is much better for an essay to be double marked by a supervisor who has subject knowledge of the essay topic. the next question which was asked, was whether the variation in marks would have made a difference to the student's grade for the essay (assuming the blind marker's grade was substituted for the grade given on double marking). it was found that the variation would not have made a 50 journal of clinical legal education august 2006 70 "diy learning: self and peer assessment", tribe, d, in teaching lawyers' skills, webb, j, and maughan, c, butterworths (1996) at p. 365. 0 to 5% variation 22 essays 6 to 10% variation 8 essays 11 to 15% variation 5 essays difference in 20 cases (57%) but it would have made a difference in 15 cases (43%). in those 15 cases (43%), would it have made a difference to the student's overall grade for his or her slo work (given the 30% weighting for the essay)? it was calculated that in 4 cases (11%) there would have been such a difference.71 looking at the general comments made by the markers engaged in the case study, the following remarks were observed: • the factors most likely to influence double markers are the grade given by the first marker and his or her comments on the work, but having this information to hand makes the process of double marking less time consuming. • the student's identity is the factor least likely to influence double markers. • where the first marker is a long-standing member of staff with a high level of experience in assessing students' work, a double marker who is less experienced may be reluctant to alter the first marker's grades. • supervisors would prefer to double mark essays in an area of law where they have at least a comfortable degree of subject knowledge. potential limitations of the case study design certain potential limitations of the case study design were perceived. in numerous cases the removal of the first marker's name from the essay was ineffective because it was easy to infer his or her identity in other ways. the slo handles some high profile cases and staff generally know which of their colleagues, and often which students, are involved in them. accordingly if an essay refers to one of these cases it is easy to infer the identity of the first marker and sometimes also the student. in addition, although there are currently around 16 supervisors in the slo, and some of them share areas of expertise such as family or employment law, other supervisors have their own unique areas of expertise. for example, there is only one supervisor who specialises in construction litigation and another supervisor with expertise in welfare benefits. if a student essay refers to a case in this area, the first marker can therefore be identified. in reality this means that many of the papers were not completely 'anonymised'. although the first marker's name was deleted from the essay, in many cases the blind marker would have known who the first marker was and could therefore have been influenced by this (see above). another issue relates to a potential skewing of one of the results of the case study. it was reported, above, that in 13 out of 35 cases the degree of variation between the grade given by the blind marker and the double marker exceeded 5%. of these 13 cases, 11 occurred where the blind marker had little or no subject knowledge of the essay topic while only two occurred when the blind marker had the relevant subject knowledge. it is possible that there is some skewing of this result. one of the supervisors who was involved in the case study has expertise in one particular area of law, and limited knowledge of other subject areas. if this staff member is excluded from the calculation, however, the result is still significant. the figures would then be six cases of more reflection and assessment in clinical legal education: do you see what i see? 51 71 for three students their grade would have increased from a 2:2 to a 2:1, and for one student the grade would have increased from a 2:1 to a first. than 5% variation where the blind marker has little or no subject knowledge of the essay topic, compared with two cases where the blind marker as such knowledge. from this it can still be concluded that the grade given by a blind marker is far more likely to resemble the first marker's grade, where the blind marker has subject knowledge of the essay topic. a further issue is raised by the nature of the essay itself. the essay is not a dry piece of academic writing which is intended to describe the current state of substantive areas of law. as discussed above previously, it is a piece of reflective work drawing upon students' practical experience of their live client work. to the extent that an essay may say, "i worked on the jones case, i did x and y, x went really well but y didn't and this is what i would change..." the student's own supervisor is in a position to assess the veracity of the factual content, whereas another marker who was not involved in the student's supervision would not be able to do so. to that extent, at least, the second marker must necessarily rely on the first marker's comments about the factual content. when the first marker's comments were removed under the blind marking conditions, the blind marker had no way to judge the veracity of the factual statements made in each essay; the blind marker was obliged to take them at face value. this means, potentially, that a well written, well structured paper that was nevertheless full of factual misrepresentations could have received a high grade upon blind marking. further, it is occasionally the case that a student will insert into their essay material which they have recycled from earlier slo work, such as a research report on a particular case. the student's supervisor will be able to spot this whereas the blind marker would not know whether an essay contained recycled material or not. in the case of a blind marker who does not have subject knowledge of the essay topic, he would not be in a position to judge any statements of law contained in the essay. he would be obliged to take them at face value, and could potentially give an essay a high grade even when it contained errors of law (which would ordinarily result in a significant reduction in the essay grade). a final observation relates to the relatively small numbers involved in the case study. only 35 papers were involved, and perhaps even more significantly, only four supervisors were involved in the blind marking exercise. it would be interesting to see whether similar results were obtained by repeating the study in subsequent years. implications of the case study in an excellent review paper, brooks observes that the practice of double marking has flourished in higher education where a growing number of university assessment policies require students' coursework to be double marked. interestingly, however, brooks notes that this expansion in use at degree level is set against limited interest in double marking as a research topic, and that it has in fact received very little attention in literature published towards the end of the 20th century.72 bone on the other hand states that double marking has had bad press as there is evidence that there is little to be gained from doing it. she states that second markers tend to come up with similar marks regardless of whether they have seen the first marker's marks or not.73 52 journal of clinical legal education august 2006 72 'double marking revisited', brooks, v, british journal of educational studies 52(1) 29 42 (2004) at pp. 30-31. 73 ensuring successful assessment, bone, a, national centre for legal education (1999) at p. 46. however, bone's comments may refer to double marking of regular academic work, rather than reflective written work. brooks refers to an interesting episode in 1949 when a researcher called wiseman pioneered a radical new approach which embraced inconsistency between markers: multiple marking. under this system each script was marked independently by teams of four markers so that the final mark for each script was the sum of four independent assessments. markers were selected for inclusion in the teams by having a high degree of self-consistency, also know as mark re-mark consistency. wiseman said that provided markers are experienced teachers, lack of high inter-correlation is desirable since it points to a diversity of viewpoints in the judgment of complex material.74 wiseman's comments about diversity of assessment are extremely interesting. one wonders whether multiple marking is a technique which could be helpful in the assessment of reflective work. regrettably, it seems unlikely in the current academic climate, where constraints of time and money cause staff availability already to be considerably stretched, that one could readily find teams of four markers to assess each student essay. if multiple marking is not feasible, what alternatives might there be? baume describes a method for assessing portfolios where, before each round of assessment, each assessor first reads and assesses the same portfolio. they then work together for a day to share their judgments, and try to reach agreement. two assessors then independently assess each portfolio, and if there are any disagreements a third assessor, a course team member, resolves them.75 this method appears to be a thorough way of approaching assessment of portfolios, although from the description it seems that many staff may need to be involved and would need to invest a substantial amount of time in the process. tribe describes a method where students play a role in the assessment process. students prepare the objectives to be achieved in a piece of course work and they give a mark, either for themselves or their peers, indicating the extent to which the objectives have been met. the same work is also assessed by staff. where the student mark and the staff mark are within 5% of each other, the student mark will be retained. if there is greater discrepancy, tribe says that discussion will take place in which justifications for the mark variance are explained and agreed.76 one attraction of this method is the way in which students are engaged, participating in both the formulation of learning objectives and the assessment process. each of these assessment methods provides interesting food for thought. with more than one third of essays in the case study showing greater than 5% variation on blind marking, one's first reaction may well be to say that a different assessment method is required. this is because, as academics, we have been conditioned to regard variation in assessment as a bad thing, to be avoided at all costs. if the case study had been looking at assessment of a standard academic essay then we might validly have thrown our hands up in horror at the results. however, it is most important to bear in mind the nature of the work which is the subject of the case study. far from being a standard piece of academic writing, the slo essay has a strong reflective element and we have seen above the way in which such work is inevitably highly personal and subjective. although we can attempt to introduce objectivity by devising appropriate assessment criteria for reflective work, it reflection and assessment in clinical legal education: do you see what i see? 53 74 brooks, supra note 72 at p. 34. 75 a briefing on assessment of portfolios, baume, d, ltsn generic centre assessment series no. 6, at pp. 10-11, which can be accessed at http://www.heacademy.ac.uk/resources.asp?process =full_record&section=generic&id=6 (accessed 19.09.06) 76 tribe, supra note 70 at p. 365. is probably true to note that a subjective vein runs through the entire process, from the student who writes the essay based on his or her unique personal experiences in the clinic, to the marker who has close knowledge of the student's capabilities and exertions. given the unique and personal aspect of this process, is it so very surprising that a blind marker, who has no knowledge of the student or his or her experiences, may perceive the contents of a reflective essay quite differently? it may therefore be inevitable that assessment of reflective work involves a degree of subjectivity and therefore variation. nonetheless the case study has been a worthwhile exercise as it highlights certain alternations which could be made to improve the way in which the slo essay is assessed. first, the student's name could be left off the paper when an essay is selected for double marking. although supervisors report that the student's identity does not influence their approach to assessing the student's essay, certain 'difficult' students attract a degree of notoriety each year, and also the brightest students tend to become known. it would therefore make sense to neutralise this factor by deleting the student's name. for reasons discussed above it is very often not possible to conceal the identity of the first marker. while the first marker's comments on the work could be withheld, it has been seen that the second marker would then be unable to tell whether the student has made untrue factual claims in his or her essay or recycled previously used material. for these reasons it may be better to keep the first markers' names and make their comments available to the second marker. is it helpful for the second marker to know what grade the first marker attributed to the essay? this is a difficult question. supervisors report that having this information makes it quicker for them to double mark an essay but it influences their own assessment of the work. provided that double markers are willing to make an additional investment of time, it may be better for them not to know the grade given by the first marker so they cannot be influenced by it. the study suggests that the single greatest improvement which could be made to the current assessment method is for double markers to assess essays which are within their subject specialism or where they have at least a comfortable level of knowledge. supervisors report that they feel more at ease marking papers where they know the relevant area of law, and this was borne out by the results of the case study which found that second markers were far more likely to grade a paper within a 5% degree of variation if they had the relevant subject knowledge. practically, however, this has important ramifications. currently the clinic offers a diverse range of practice areas, including employment law, family law, crime, public law, personal injury, consumer, construction litigation, welfare benefits and so on. the diversity is regarded as beneficial both for clients and students. currently around 16 members of academic staff work on the clinic and each brings to bear his or her own personal experience of legal practice. the clinic is able to offer such diversity because of the scale of the operation and the number of staff involved. it also means that in some instances there is only one supervisor in a particular area of law, such as construction litigation or welfare benefits. within areas of law such as personal injury and family law, where there are several supervisors with subject expertise, it may be possible to arrange matters so that essays are double marked by other supervisors with subject knowledge. currently this would not be possible where there is only one supervisor in an area of law. one way it could happen would be to drop areas of practice so that the clinic would be confined to one or two areas of law with many supervisors in each. however, 54 journal of clinical legal education august 2006 this would be undesirable from the viewpoint of all concerned: students, clients and staff. another way would be to greatly increase the numbers of staff involved in the clinic to ensure that each practice area was staffed by at least two or three supervisors. the slo has strong ambitions for growth over coming years, to greatly increase both staff and student numbers, and if the growth is carefully managed it may be possible to achieve this. it is certainly something to aim for. it may be possible to ask a non-clinical member of staff with the relevant subject knowledge to double mark the essay, perhaps together with a clinical tutor. alternately, if there was a web-based database of clinic supervisors and their areas of expertise, it may be possible to find a clinical tutor with subject expertise from another institution who could assist with double marking.77 conclusion it is widely known that practical experience and reflection form the two main elements of clinical legal education. while clinical staff are usually comfortable with the practical side of clinic, many feel some degree of unease about reflection including what it is, why we ask students to do it, and how to assess it. if we feel such uncertainties as clinicians it is hardly surprising that many of our students struggle with reflection. the role that reflection plays in clinical legal education mirrors the role that reflection plays in learning, full stop. all human beings have a capacity for reflection; it is something we naturally employ, usually quite subconsciously, on a day to day level when we mull over events in our minds. numerous educational theories recognise reflection as an integral part of learning including models developed by kolb and schön and constructivist learning theory. clinical staff should have an awareness of these theories so they know what reflection is and why it is important. this can inform staff in the development of programmes which are conducive to the occurrence of good quality reflection. to encourage reflection in clinic, staff should move away from the traditional 'teacher' role of authority and giving answers, towards a facilitator role which encourages students to open up and share their thoughts about their experiences. we need to think about wider issues of programme design but equally important are considerations such as class size, the way students work together and the arrangement of teaching spaces as all of these can have a significant impact on whether reflection is likely to occur in practice. while it may not be possible to teach reflection directly, we can provide students with helpful guidance to simulate their interest and their willingness to reflect. one way of doing this is to give students clusters of questions to get them going. for example, questions can challenge students into considering the general and the specific, and to think about how the perspective of time can affect the quality of their reflection. if we can get students to produce quality reflection there are obvious benefits for them. not only will they perform better in their clinical course but reflection will make them more aware of how they learn. there is evidence that increased self-awareness of learning is correlated with better learning, so by engaging in reflection students are teaching themselves how to learn better in the future. reflection and assessment in clinical legal education: do you see what i see? 55 77 while this could be a helpful resource for many reasons, not only relating to assessment, it would raise issues of consistency of marking between law schools which would need to be addressed. see also supra note 65. there are conflicting views about whether reflection ought to be assessed. some say that reflection is unique and raw, and we risk destroying this if we seek to impose the strictures of an assessment regime. others say that if reflection matters to us, and if students will not engage in unassessed work, we have little alternative than to assess it. if we decide to assess reflection, this opens a further can of worms given its inherently subjective nature and the close working relationships which often exist between students and the staff who are to assess their work. can assessment of reflection in such a context ever be fair and objective? arguably yes, provided that assessment criteria are carefully thought though and made explicit, and that staff meet to discuss and agree assessment methods and approaches. in particular it is vital to be clear whether the reflection is being assessed as part of the assessment of a wider project or skill (for example, drafting) or whether the focus is the learning journey itself. if the latter, and especially if reflection is to be fully graded rather than merely adjudged competent/not yet competent, carefully considered assessment criteria need to be developed and circulated amongst staff. valuable work has been done by others in identifying criteria for assessing reflection in clinical teacher education and legal education. these provide a helpful starting point for assessing reflection in our own programmes but we should be wary of a 'one size fits all' approach. just as we need to give careful thought as to how to employ reflection as part of our clinical programmes, we need to individualise assessment criteria to ensure they are relevant and fair for our own purposes. if we follow these guidelines it should be possible to arrive at a fair assessment of the reflective work produced by law students in clinic. but is this enough: should we also double mark students' reflective work to check that assessment criteria are being applied consistently by different markers? experience of doubling marking reflective work in the law clinic at northumbria university suggests that double marking has a role to play in ensuring consistency between markers. however, care needs to be taken in the design of a double marking scheme. second markers can be swayed by the grades awarded and comments made by first markers, so consider whether your second markers need this information or not. it is vital to ensure that second markers have the right subject knowledge to mark the reflective work they are given; experience at northumbria university shows that second markers cannot meaningfully contribute to the process unless they have knowledge of the area of law on which the reflection is based. 56 journal of clinical legal education august 2006 editorial (just) in time for the holidays elaine hall northumbria university, uk elaine.hall@northumbria.ac.uk this is the late-running november edition, delayed by leaves on the line/ the wrong kind of snow/ editorial inefficiency (take your pick!). i know that the fantastic content will make up for the wait. leslie wolf, stacie kershner and lisa bliss start us off with their exploration of how an innovative learning experience has supported students preparing to work in health law, a fascinating look at the alignment of demand from the job market, student need, tailored pedagogy and specialist knowledge. this is followed by an important reflective piece on externships from linda smith, jeff giddings and leah wortham, looking across practice in the usa and australia and distilling key considerations for clinicians in developing and maintaining effective externships. we change scale but not theme with larry donnelly’s article on ‘disorienting moments’: recognising the individual and critical learning opportunities provided within clinical education and reflecting on how to recognise as teachers and convey to students these ‘moments of opportunity’. we stay in ireland for the first of our practice reports, in which sinead eaton demonstrates the use of a contract, not simply to understand and become proficient in that example but to extrapolate from that to a broader and more holistic view of the law. in our second practice report, cosmos nike nwedu gives us a rich account of the clinic at ebonyi state university in nigeria, describing the history and current practice as well as the impact on local communities. as promised, i am highlighting some of our classic papers in the second archive dive. many of us are looking forward to a short break from the managerial aspects of clinic – dealing with competing demands, balancing accountability and action and it is therefore comforting to recognise that we have been here before: volume 6 from 2004 has papers on quality (hugh brayne and adrian evans) and context (roy stuckey and martin wilson), impact (liz curran) and management (ross hyams). we are delighted to be able to announce we are jointly holding the next ijcle conference with monash university in melbourne, australia on 28th-30th november 2018. the theme of the conference is ‘adding value – how clinics contribute to communities, students and the legal profession’ and a detailed call for papers will be hitting your inboxes very soon. it promises to be an excellent conference with the added bonus of the option to attend/submit a paper to the international legal ethics conference (6-8th december) following shortly thereafter. 2 ijcle vol 23 no 3 practice report: teaching and learning in clinic ijcle vol 23 no 3 practice report: teaching and learning in clinic integration of legal aid activity in law school curriculum: an overview of bangladesh and india farzana akter, university of dhaka, bangladesh* abstract if law students at the formative stage of their career are exposed to legal aid services, they become motivated to deliver the service when they enter into professional life. the purpose of the present article is to examine the current status of bangladeshi legal education with regard to the integration of legal aid activity in law school curricula from an international human rights perspective. the article also compares the bangladeshi legal education with the indian practice. the article indicates that bangladeshi students are not adequately motivated, through academic exercise, to use the law for the poor people. as a result, they learn to become mere lawyers to fight legal cases without acquiring adequate service-mindedness to serve the poor people of the community. the article finally recommends that legal education in bangladesh is required to explore the potentials of clinical legal education with a compulsory component of legal aid programme. moreover, bangladesh can learn from the standard practices of the indian law schools. 1. introduction legal education is fundamental in any serious commitment to provide quality legal services to the poor.[footnoteref:1] in 2007, the indian national knowledge commission reported that the purpose of legal education is to create professional lawyers as well as to provide justice-oriented education for upholding the values of the constitution.[footnoteref:2] the justice transformation purpose of legal education, as pande stated, “can happen only by underscoring the students' role in ensuring that the right of access to justice reaches the resourceless and the poor.”[footnoteref:3] narrowly, access to justice can be described as providing legal aid which makes judicial remedies available to those with inadequate financial resources by meeting the cost of lawyers and other incidental expenses of the administration of justice.[footnoteref:4] therefore, legal aid serves as the contact point between the law and people who are living in poverty and is crucial in ensuring access to justice.[footnoteref:5] the united nations principles and guidelines on access to legal aid in criminal justice systems[footnoteref:6] (hereinafter the principles and guidelines) that provides the internationally agreed definition of the term ‘legal aid’[footnoteref:7] requires states to establish a nationwide legal aid system involving a wide range of stakeholders as legal aid service providers in order to increase outreach, quality and impact, and facilitate access to legal aid in all parts of the country.[footnoteref:8] the principles and guidelines particularly mentions the establishment of legal aid clinics in the law department of a university[footnoteref:9]. such schemes enable students to provide free legal assistance, assist in the preparation of cases and even represent clients in court proceedings usually under the supervision of a qualified lawyer or faculty staff member. in this context, the present paper examines the current status of bangladeshi legal education with regard to the integration of legal aid activity in law school curricula from an international human rights perspective. the author, therefore, first looks at the international human rights instruments elucidating such states’ obligation. in analysing bangladeshi legal education, the author compares the system with indian legal education. there are reasons for choosing india’s practice for the comparative analysis. india and bangladesh share not only a similar historical background,[footnoteref:10] but also similar legal traditions – both countries follow the common law system. moreover, there is commonality between the countries in terms of social and economic standards, and linguistic and cultural practices.[footnoteref:11] more importantly, both india and bangladesh have established respective national legal aid systems in order to enable those living in poverty to access the formal court system. thus indian and bangladeshi legal aid systems are functionally equivalent and it is relevant to look at indian practice to see whether bangladesh can learn from it. [1: d. l. rhode, in the interests of justice: reforming the legal profession 185-186 (new york, oxford university press, 2000).] [2: k. p. c. rao, ‘legal education in india how far the second generation reforms will meet the global challenges’, 46 (9) the management accountant 794 (2011). it is also available at: http://kpcrao.com/images/kpcrao/articles/2011/sep-11-2.pdf (accessed on 14 march 2016) at 102; final report of 3-member committee on reform of legal education (2009) at 18. http://www.barcouncilofindia.org/wp-content/uploads/2010/06/3-member-committee-report-on-legal-education.pdf (accessed on 14 march 2016).] [3: b. b. pande, ‘moral and ethical issues confronting students’ legal aid clinics in the outreach of legal services to the resource-less and the poor’, 1 journal of national law university, delhi 48 (2013).] [4: f. francioni, ‘the development of access to justice in customary law’, in: f. francioni (ed.), access to justice as human right 1 (oxford, oxford university press, 2007). also see, w. c. vickrey, j. l. dunn and j. c. kelso, ‘access to justice: a broader perspective’, 42 loyola of los angeles law review 1153 (2009); g. blasi, ‘how much access? how much justice?’ 73 fordham law review 865 (2004).] [5: g. knaul, report of the special rapporteur on the independence of judges and lawyers, a/hrc/23/43 (15 march 2013), paras. 27 and 35. http://www.wave-network.org/sites/default/files/un%20special%20rapporteur%20on%20the%20independence%20of%20judges%20and%20lawyers.pdf (accessed on 2 march 2016).] [6: general assembly resolution, a/res/67/187 (28 march 2013). http://www.un.org/en/ga/search/view_doc.asp?symbol=a/res/67/187 (accessed on 1 march 2016).] [7: supra, note 5 at para. 26. the principles and guidelines construes the term ‘legal aid’ to include “legal advice, assistance and representation for victims and for arrested, prosecuted and detained persons in the criminal justice process, provided free of charge for those without means or when the interests of justice so require”. furthermore, “legal aid is intended to include the concepts of legal education, access to legal information and other services provided for persons through alternative dispute resolution mechanisms and restorative justice processes”. annex, introduction, para. 8, the united nations principles and guidelines on access to legal aid in criminal justice systems. ] [8: annex, introduction, paras. 9-10; guideline 12, the united nations principles and guidelines on access to legal aid in criminal justice systems.] [9: annex, principle 14 and guideline 16, the united nations principles and guidelines on access to legal aid in criminal justice systems.] [10: bangladesh and india both were under british colonial rule. by 1947, the british empire in india expired. this created two separate states: india and pakistan. the division was mainly founded along religious lines which constituted a muslim majority in pakistan and a hindu majority in india. pakistan was further divided into two parts in the east (east bengal, which became bangladesh in 1971) and in the west (western punjab). i. talbot and g. singh, the partition of india 1-4 (cambridge, cambridge university press, 2009); w.v. schendel, a history of bangladesh 88-130 (cambridge, cambridge university press, 2009); the road to partition 1939-47. http://www.nationalarchives.gov.uk/education/topics/the-road-to-partition.htm (accessed on 14 march 2016).] [11: india-bangladesh relations (january, 2013). http://www.mea.gov.in/portal/foreignrelation/bangladesh_brief.pdf (accessed on 14 march 2016).] 2. obligation of states to integrate legal aid activity in law school curriculum under the international human rights instruments the structure of legal education represents a combination of the state’s public policy as well as academic self-interest of the intending lawyers.[footnoteref:12] according to jeeves and macfarlane, the educational experience of the potential lawyers plays a significant role in his or her aims and expectations for future practice.[footnoteref:13] therefore, legal education must mobilise the necessary legal personnel to serve a wider public and a broad range of interests on the one hand, and to improve the quality of legal services to the poor on the other.[footnoteref:14] legal aid activity is integrated into law school curricula as a part of the clinical legal education programmes in order to cultivate professional skills and service orientation among the potential lawyers.[footnoteref:15] the purpose of clinical legal education, therefore, is to develop the perception, skills and sense of responsibility of the students for their professional life. [footnoteref:16] it enables law students to comprehend and assume the responsibility for the protection of individual rights, reform of the law, equitable distribution of legal services in society and for the protection of public interest.[footnoteref:17] thus, clinical legal education provides the students opportunities not only for professional and intellectual development; it also prepares them to practise law as socially and professionally responsible lawyers.[footnoteref:18] [12: supra note 1 at p. 187. ] [13: m. jeeves and j. macfarlane, ‘rethinking legal education’, in: j. cooper and r. dhaveen (eds.), public interest law 394 (oxford/new york, basil blackwell, 1986).] [14: supra note 1 at pp. 185-86.] [15: a. klijn, ‘dutch legal services quality incentives: the allegedly "perverse" effects of the 1994 legal aid act’, 33(2) university of british columbia law review 438 (2000); v.r.k. iyer, ‘law and the people’ 115 (1972) cited in f. s. bloch and i. s. ishar, ‘legal aid, public service and clinical legal education: future directions from india and the united states’, 12 michigan journal of international law 98 (1990).] [16: s. p. sarker, ‘empowering the underprivileged: the social justice mission for clinical legal education in india’, 19 international journal of clinical legal education 321 (2013); k. archana, ‘practicability of clinical legal education in india an overview’, 4 (26) journal of education and practice 157 (2013).] [17: n.r.m. menon, clinical legal education: concept and concerns, a handbook on clinical legal education 1 (lucknow, eastern book company, 1998).] [18: s. p. sarker, supra note 16 at p. 321; k. archana, supra note 16 at p. 157. ] wilson states that law students in clinics provide legal services to the poor, and it allows them to get in close contact with the problems of that segment of society.[footnoteref:19] this kind of exposure helps train the students to adequately respond to the needs of poor justice seekers[footnoteref:20] and to pursue careers of public interest.[footnoteref:21] therefore, clinical legal education serves a two-fold purpose: first, it provides legal services to the poor and trains students to learn about the skills of lawyering, and second, it creates a public-minded legal profession in the future.[footnoteref:22] moreover, as pande states, students’ involvement in various components of the legal aid programme that includes activities associated with the creation of legal awareness or legal literacy, paralegal work, and other law reform activities is crucial, and has a stronger impact on their successful operation.[footnoteref:23] states are, therefore, required to take appropriate measures, as part of a nationwide legal aid system to encourage the support and establishment of law clinics in universities as well as to provide incentives to allow students to practise in the court under the supervision of a senior lawyer or a law professor.[footnoteref:24] [19: r. j. wilson, ‘training for justice: the global reach of clinical legal education’, 22(3) penn state international law review 423(2004).] [20: a. klijn, supra note 15 at p. 438; s. p. sarker, supra note 16 at p. 321; k. archana, supra note 16 at p. 157; f. s. bloch and i. s. ishar, supra note 15 at p. 96. ] [21: barry has stated it more clearly, “clinics expose students to the impact that the practice of law has on people. no one should pretend that they are prepared to practice without a sense of this impact and a constructive way to think about it… it is law schools that must foster a contextual understanding of what lawyers should do to meet the needs of the country. this means connecting students with communities and involving them in creative solutions that focus on the common good.” m. barry, ‘clinical legal education in the law university: goals and challenges’, 2007 international journal of clinical legal education 30 (2007).] [22: r. j. wilson, supra note 19 at p. 424; according to rhode, “if we want lawyers to see public service as a professional responsibility, that message must start in law school.” d. l. rhode, access to justice 19 (oxford, oxford university press, 2004).] [23: b.b. pande, supra note 3 at p. 41. also see, government of india and undp india, a study of law school based legal services clinics (2011) at 23. http://www.in.undp.org/content/dam/india/docs/a_study_of_law_school_based_legal_services_clinics.pdf (accessed on 12 march 2016).] [24: guidelines 11, 12 and 16, the united nations principles and guidelines on access to legal aid in criminal justice systems.] the obligation concerning the integration of legal aid activity in the legal education of the country has been recognised in various international human rights instruments. these instruments consist of various united nations (un) documents involving un general assembly resolutions and standards of behavior. the un documents are considered the most authoritative and comprehensive in the respective fields.[footnoteref:25] they are important sources for interpreting and understanding states’ international legal obligations. they also provide guidance or models for domestic laws that are able to assist policy makers to realise rights at the national level[footnoteref:26]. among the above-mentioned documents, the un draft declaration on the independence of justice (the singhvi declaration)[footnoteref:27] in its article 78 stipulates that legal education is required to promote the awareness of the ideals and ethical duties of lawyers and of human rights and fundamental freedoms recognised by national and international law. as far as the responsibility of lawyers is concerned, the declaration requires states to undertake legal education programmes that have regard to the social responsibilities of lawyers including co-operation in providing legal services to the poor.[footnoteref:28] the basic principles on the role of lawyers[footnoteref:29] acknowledges that lawyers have the obligation to uphold human rights and fundamental freedoms recognised by national and international law in protecting the rights of their clients and in promoting the cause of justice.[footnoteref:30] it, therefore, requires the educational institutions to ensure that lawyers have appropriate education and training and are made aware of the ideals and ethical duties appropriate to them and of human rights and fundamental freedoms recognised by national and international law.[footnoteref:31] as regards ethical duty, it is commonly said that lawyers have a duty to render legal services to the poor.[footnoteref:32] however, such obligation is not restricted to the moral principle only; it also conjoins with the professional responsibility of lawyers. this is because access to legal services is considered a ‘fundamental need’[footnoteref:33] and the legal profession enjoys a monopoly on the delivery of legal services.[footnoteref:34] in other words, the practice of law requires a distinct level of skill and training and lawyers possess such qualities. this imposes a special obligation on them to render legal services to the poor.[footnoteref:35] therefore, it is significant to include legal services in the law school curriculum in order to create a service-mindedness among the students towards legal aid work as well as to uphold their moral and professional obligation to provide legal services to the poor.[footnoteref:36] [25: richard j. wilson, ‘principles, sources and remedies for violation of the right to legal assistance in international human rights law’, in: international legal aid and defender system development manual 21 (usa, national legal aid and defender association, 2010). http://www.nlada.org/defender/defender_publications/international_manual_2010 (accessed on 14 march 2016).] [26: c. chinkin, ‘sources’, in: d. moeckli, s. shah, s. sivakumaran, d. harris (eds.), international human rights law 92 (oxford, oxford university press, 2013).] [27: resolution 1989/32, the un sub-commission on prevention of discrimination and protection of minorities. http://www.cristidanilet.ro/docs/shingvi%20declaration.pdf (accessed on 14 march 2016).] [28: article 79, the un draft declaration on the independence of justice (the singhvi declaration).] [29: adopted by the eighth united nations congress on the prevention of crime and the treatment of offenders, havana, cuba (27 august to 7 september 1990). http://www.ohchr.org/en/professionalinterest/pages/roleoflawyers.aspx (accessed on 11 february 2016). ] [30: principle 14, basic principles on the role of lawyers.] [31: principle 9, basic principles on the role of lawyers.] [32: m. s. jacobs,’ pro bono work and access to justice for the poor: real change or imagined change?’ 48 florida law review 511-512 (1996); s. bretz, ‘why mandatory pro bono is a bad idea’, 3 georgetown journal of legal ethics 623 (1990); l.s. tudzin, ‘pro bono work: should it be mandatory or voluntary’, 12 journal of the legal profession 112 (1987); s. b. rosenfeld, ‘mandatory pro bono: historical and constitutional perspectives’, 2 cardozo law review 257-259 (1981).] [33: d. l. rhode (a), ‘pro bono in principle and in practice’, 53(3) journal of legal education 430-431 (2003); d. l. rhode (b), ‘cultures of commitment: pro bono for lawyers and law students’, 67(5) fordham law review 2418 (1999).] [34: l. sossin, ‘the public interest, professionalism and pro bono publico’, 46 osgoode hall law journal 140, 147 (2008); d. l. rhode (b), supra note 33 at p. 2419; m. s. jacobs, supra note 32 at p. 511; b. f. christensen, ‘the lawyer's pro bono publico responsibility’, 1981(1) american bar foundation research journal 15-16 (1981); j. bitowt, ‘the pro bono debate’, 9 student lawyer 38(1980).] [35: d. l. rhode (b), supra note 33 at p. 2419; j. giddings, ‘legal aid services, quality and competence: is near enough good enough and how can we tell what's what?’ 1 newcastle law review 67-68 (1996); z. i. macaluso, ‘that's o.k., this one's on me: a discussion of the responsibilities and duties owed by the profession to do pro pono publico work’, 26 university of british columbia law review 65 (1992).] [36: m. j. toll and j. l. allison, ‘advocates for the poor’, 46 denver law journal 85 (1969).] the united nations principles and guidelines on access to legal aid in criminal justice was adopted by the un general assembly consisting of all the un member states in december 2012. it has become a benchmark for access to justice because it is the first international instrument that absolutely concentrates on legal aid.[footnoteref:37] the principles and guidelines is drawn from international standards and recognised best practice, and presents a progressive,[footnoteref:38] complete and realistic model of legal aid that considers the great variety among legal systems and socioeconomic conditions.[footnoteref:39] it is, thus, comprehensive in nature and introduces a complete programme for an effective and fair legal aid scheme.[footnoteref:40] the principles and guidelines allows states to work with a wide range of legal aid service providers to increase outreach, quality and facilitate access to legal aid and therefore, has taken into consideration different models for the provision of legal aid. one of these models involves the establishment of law clinics in the law department of a university. as mentioned earlier, law clinics provide students an opportunity to get exposure to the problems of the poor and provide free legal assistance to them. this is an integrated approach between the government and other organisations and is able to ensure the maximum coverage of the legal aid beneficiaries. therefore, as the principles and guidelines requires, states are responsible for taking appropriate measures to encourage the support and establishment of such clinics in university law departments and provide incentives to allow students to practise in court under the supervision of a senior lawyer or a law professor.[footnoteref:41] [37: a. willems, ‘the united nations principles and guidelines on access to legal aid in criminal justice systems: a step toward global assurance of legal aid?’ 17(2) new criminal law review 185 (2014).] [38: open society justice initiatives, fact sheet: un principles and guidelines on access to legal aid in criminal justice systems. http://www.opensocietyfoundations.org/sites/default/files/factsheet-un-principles-guidelines-20130213.pdf (accessed on 15 march 2016).] [39: recital 10, the united nations principles and guidelines on access to legal aid in criminal justice systems.] [40: supra note 37 at pp. 190,198.] [41: guidelines 11, 12 and 16, the united nations principles and guidelines on access to legal aid in criminal justice systems.] in sum, international human rights norms acknowledge the role of law students in rendering legal aid to the poor. therefore, integration of legal aid activity in the law school curriculum is crucial and is able to motivate prospective lawyers towards legal aid work. this ultimately can impact on the outreach and quality of the service. 3. legal aid activity in indian law schools in 1976, the constitution (forty-second amendment) act[footnoteref:42] inserted article 39-a in the indian constitution. article 39a refers to a direct and express provision of legal aid as one of the directive principles of state policy and provides that states shall secure that the operation of the legal system promotes justice on the basis of equal opportunity, and shall in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disability. articles 14[footnoteref:43] and 22(1)[footnoteref:44] also make it obligatory for the state to ensure equality before the law and a legal system which promotes justice on the basis of equal opportunity for all. in 1987, india established its national legal aid system with the adoption of the legal services authorities act (hereinafter lsaa).[footnoteref:45] the lsaa gives a statutory base to legal aid programmes throughout the country in a uniform pattern. for this, a nationwide network has been envisaged under the act for providing legal aid and assistance. the national legal services authority (hereinafter nalsa) is the apex body constituted under section 3 of the act. [42: the constitution (forty-second amendment) act, 1976. http://india.gov.in/my-government/constitution-india/amendments/constitution-india-forty-second-amendment-act-1976 (accessed on 15 march 2016). to note, the republic of india is governed in terms of the constitution of india which was adopted by the constituent assembly on 26th november 1949 and came into force on 26th january 1950. http://india.gov.in/my-government/constitution-india (accessed on 15 march 2016).] [43: article 14 reads, “the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of india”.] [44: article 22(1) states, “no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice”.] [45: act 39 of 1987.] legal aid activity has become part of the curriculum in indian law schools through clinical legal education programmes. at present clinical legal education is a mandatory part of india’s legal education that traces its origins to both the legal aid and legal education reform movements with a view to improving the quality of law practice as well as making lawyers aware of their professional and public responsibility.[footnoteref:46] the involvement of law colleges in legal aid activity commenced in india when the legal aid movement gained momentum in the 1960s. it was premised on the assumption that law schools could play a significant role in providing legal services and that would be possible through legal aid clinics.[footnoteref:47] moreover, most members of the indian legal community including law teachers, the bar, the bench and legal aid experts have admitted that isolation or exclusion of law schools from legal aid programmes would not serve to achieve the aim of the service, rather would be frustrating for legal aid, legal education, and the legal profession.[footnoteref:48] [46: s. p. sarker, supra note 16 at p. 321; k. archana, supra note 16 at p. 157; f. s. bloch and i. s. ishar, supra note 15 at p. 96. ] [47: f. s. bloch and i. s. ishar, supra note 15 at p. 96; f. s. bloch and m. r. k. prasad, ‘institutionalizing a social justice mission for clinical legal education: cross-national currents from india and the united states’, 13 clinical law review 166 (2006); s. p. sarker, supra note 16 at p. 321. ] [48: f. s. bloch and i. s. ishar, supra note 15 at p. 97; f. s. bloch and m. r. k. prasad, supra note 48 at p. 166; jethmalani, ‘objectives of legal education’, in: s. k. agrawala, s. p. sathe and p. k. irani (eds.), legal education in india: problems and perspectives 52, 56-57 (university of poona, n. m. tripathi, 1973).] various reports of the law commission and the ministry of law and justice of india have acknowledged the significance of legal education in establishing an effective legal aid system.[footnoteref:49] these reports have called upon law students to engage in public service while in law schools. in 1981, the government appointed the committee for implementing legal aid schemes. the committee insisted that court-oriented legal aid programmes alone are not adequate to provide social justice in india. it, therefore, placed more emphasis on other components of the legal aid system, for example, the promotion of legal literacy, the organisation of legal aid camps to carry legal services to people's doorsteps, training paralegals to support legal aid programmes, establishing legal aid clinics in law schools and universities, and bringing class actions through public interest litigation.[footnoteref:50] [49: for instance, fourteenth report of the law commission of india (1958), 184th report of the law commission of india on the legal education and professional training and proposals for amendments to the advocates act, 1961 and the university grants commission act, 1956 (december 2002), expert committee on legal aid (1973) and committee on national juridicare: equal justice—social justice (1976).] [50: s. p. sarker, supra note 16 at p. 325; f. s. bloch and m. r. k. prasad, supra note 48 at p. 175. ] the bar council of india also plays a significant role in the integration of legal aid activity in law schools. in 1997, the bar council issued a circular[footnoteref:51] that makes legal aid activity an integral part of the academic curriculum since the academic year 1998-99.[footnoteref:52] to be more specific, the bar council has mandated for all indian law schools four practical papers under the clinical component in the curriculum. one of these papers is specifically designed to provide various services to society including lok adalat, legal aid camps, legal literacy and paralegal training in order to involve the students with the community.[footnoteref:53] in 2008, the council approved the rules on “standards of legal education and recognition of degrees in law”.[footnoteref:54] the rules mandated all law colleges to “establish and run a legal aid clinic under the supervision of a senior faculty member”.[footnoteref:55] in 2010, the bar council reiterated the same in its inspection manual 2010.[footnoteref:56] the national legal services authority (legal aid clinics) scheme, 2011[footnoteref:57] is also relevant and requires law colleges and law universities to set up permanent legal aid clinics attached to their institutions that function with the co-ordination of state legal service authorities.[footnoteref:58] [51: bar council of india, circular no. 4/1997 cited in f. s. bloch and m. r. k. prasad, supra note 48 at p. 180; promoting clinical legal education in india: a case study of the citizen participation clinic, joint report-cornell university law school and jindal global law school (2012) at 8. http://www.gaje.org/wp-content/uploads/2012/09/cor-jgls-web_low.pdf (accessed on 5 march 2016).] [52: s. p. sarker, supra note 16 at p. 326.] [53: s. p. sarker, supra note 16 at p. 326; f. s. bloch and m. r. k. prasad, supra note 48 at p. 180; j. schukoske and r. adlakha, ‘enhancing good governance in india: law schools and community-university engagement’, 3 journal of indian law and society 207 (2012). http://jils.ac.in/wp-content/uploads/2012/11/jane-roopali1.pdf (accessed on 4 march 2016).] [54: department of justice, government of india and undp india, conference report, international conference on equitable access to justice: legal aid and legal empowerment, new delhi, india (17 – 18 november 2012) at 21. http://www.in.undp.org/content/dam/india/docs/dg/equitable-access-to-justice-legal-empowerment-legal-aid-and-making-it-work-for-the-poor-and-marginalised.pdf (accessed on 15 march 2016).] [55: ibid.] [56: the bar council of india's inspection manual (2010) at 35. http://www.barcouncilofindia.org/wp-content/uploads/2010/06/inspection-manual.pdf (accessed on 5 march 2016).] [57: https://www.google.com.bd/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0ahukewiejo3c0mllahwxjo4khqubdeyqfggamaa&url=http%3a%2f%2fnalsa.gov.in%2fschemes%2fnalsa%2520legal%2520aid%2520clinics%2520regulations%2c%25202011.doc&usg=afqjcnh1cgm1l92fotrctwrfvcpgd7binw&bvm=bv.116636494,d.c2e&cad=rja (accessed on 15 march 2016).] [58: paras 24-26.] thus indian legal education places considerable emphasis on clinical legal education so that students can learn the law while acquiring professional skills. as a component of this programme, students are expected to realise the role of legal aid in the society, its beneficiaries, and the nature of their problems. a study supported by the government of india and undp project on access to justice found that nearly 82 percent of the colleges have an assigned faculty to conduct legal aid activity. yet it is not effective because legal aid activity is still a non-credit, extra-curricular activity in indian law schools.[footnoteref:59] the study further revealed that several legal aid clinics were started merely to satisfy the mandatory requirement prescribed by the bar council. clinics do not have appropriate functional structure or policy on the kind of services they would offer.[footnoteref:60] most of the activities of the clinics are limited to organising a few legal literacy camps.[footnoteref:61] it is also found that the law colleges do not make adequate effort to inform the community about their existence and the availability of services. as regards providing legal advice or participation in client interviewing, the performance of the colleges is far from the desired level.[footnoteref:62] the situation is similar in offering paralegal services and law reform. according to the above-mentioned study, one of the drawbacks in the clinical legal education of india is the inability of full-time law teachers and students to appear in court on behalf of legal aid clients.[footnoteref:63] [59: government of india and undp india, a study of law school based legal services clinics (2011) at 2, 45-47. http://www.in.undp.org/content/dam/india/docs/a_study_of_law_school_based_legal_services_clinics.pdf (accessed on 15 march 2016).] [60: also see, b.b. pande, supra note 3 at p. 36. ] [61: supra note 59 at 2, 45-47. ] [62: ibid. ] [63: ibid. ] however, the same study also found standard practices in seven law schools that are engaged in a variety of legal aid activities.[footnoteref:64] for instance, v.m. salgaocar college and jindal law school work on rural good governance. symbiosis law school has been conducting a unique programme to provide legal aid in two ways: it has created a legal aid fund and deployed a few lawyers to a selected village. again the indian law society, pune established clinics both inside and outside its campus. students of jss law college, mysore conduct a huge legal literacy programme. other activities by these colleges include paralegal services, public surveys, community empowerment programmes, implementation of social welfare programmes, prison clinics and consumer clinics.[footnoteref:65] the study, therefore, recommends that these exemplary practices should be adopted in different parts of the country. [64: supra note 59 at 3, 47-57.] [65: ibid. ] in short, the indian legal aid system provides law schools a unique opportunity to achieve the social justice mission of legal education. however, this mission has not yet been achieved due to various factors including the lack of adequate financial and logistical support, lack of skilled academic staff, and other related provisions. despite these shortcomings, certain activities of particular indian law schools have the potential of addressing the values of legal aid and of the social justice mission in the broad sense. these examples can be followed by other indian states as well as other countries with similar socio-economic backgrounds in order to develop their legal education and the legal aid system. 4. legal aid activity in bangladeshi law schools in bangladesh, the right of equality before the law is guaranteed in article 27 of the constitution. the right to a fair trial is also ensured.[footnoteref:66] yet the formal legal system is inaccessible to the poor due to a variety of factors – they include the enormous cost of engaging a lawyer, cost for travelling long distances, paying court fees, collecting evidence and judgements, complexity of law and legal institutions and others.[footnoteref:67] according to khair, the need for legal aid to the poor in bangladesh has been strongly pursued over the years to enable them to access justice.[footnoteref:68] however, organised state intervention towards legal aid is not very old in the country.[footnoteref:69] the first initiative was taken in 1994 when the government introduced a legal aid fund to be distributed through the district and sessions judge of each district.[footnoteref:70] in 1997, the government established a national legal aid committee according to a resolution of the ministry of law, justice and parliamentary affairs.[footnoteref:71] the committee was chaired by the minister of the ministry of law, justice and parliamentary affairs. the resolution also involved district committees that were to be chaired by the district and sessions judges. however, there is a lack of official data on the actual coverage of this mechanism.[footnoteref:72] in 2000, the government enacted the legal aid services act[footnoteref:73] (hereinafter lasa) to put the legal aid activities on a firm footing. the national legal aid services organization (hereinafter nlaso) was established for carrying out the purposes of the lasa in pursuance of its section 3(1).[footnoteref:74] moreover, the lasa creates a nationwide network for the administration of legal aid services and therefore accommodates provisions for various committees at the national and district level. [66: article 33 of the constitution of bangladesh.] [67: s. khair, legal empowerment for the poor and the disadvantaged: strategies achievements and challenges. experiences from bangladesh 43-51 (dhaka, department of justice canada’s cida legal reform project in bangladesh, 2008).] [68: ibid at p. 212. ] [69: s. muralidhar, law, poverty and legal aid: access to criminal justice 357 (new delhi, lexisnexis/butterworth, 2004); s. khair, supra note 67 at p. 221. ] [70: n. a. chowdhury and s. malik, ‘awareness on rights and legal aid facilities: the first step to ensuring human security’, in: human security in bangladesh: in search of justice and dignity 42 (united nations development programme /undp), bangladesh, 2002).] [71: s.r.o .no. 74-law/1997, dated 19 march 1997.] [72: n. a. chowdhury and s. malik, supra note 70 at pp. 43-44. ] [73: aingoto sohayota prodan ain, act no. vi of 2000.] [74: s.r.o.no.146-law/2000.] as far as the integration of legal aid activity in law school curricula is concerned, clinical legal education programmes are absent in bangladesh. this prevents law schools from providing a unique opportunity to train prospective lawyers to approach the law with the commitment and skills to render justice to those living in poverty. however, in the early-1990s three major public universities[footnoteref:75] of bangladesh launched clinical legal education programmes on an ad hoc basis with the sponsorship of the ford foundation.[footnoteref:76] the underlying purpose of these programmes was to train law graduates to get involved in the social and developmental causes of society.[footnoteref:77] in 2009, the law commission of bangladesh recommended the government incorporate compulsory clinical legal education in law schools; the main purpose of this programme would be to render legal services to the poor.[footnoteref:78] however, there is a lack of substantial effort on the part of successive governments to put the recommendation into effect. at present only one university, university of chittagong, offers clinical legal education as a component of its syllabus, but the clinic has confined its activities mostly to the organisation of various workshops and lectures and therefore has virtually disdained its clinical character.[footnoteref:79] in short, the combination of pro-justice and vocational orientations in the bangladeshi legal education is currently absent.[footnoteref:80] in other words, the students are not adequately motivated, through academic exercise, to use the law for the poor people.[footnoteref:81] as a result, they learn to become mere lawyers to fight legal cases without acquiring adequate service-mindedness to serve the poor people of the community.[footnoteref:82] it also limits the coverage of legal aid activities in the country. [75: s. golub, ‘from the village to the university: legal activism in bangladesh’, in: m. mcclymont and s. golub (eds.), many roads to justice 128, 144-145 (usa, the ford foundation, 2000); r. hoque, ‘teaching law for development? legal education: needs major overhaul’, the daily star, dhaka, may 5, 2012. http://archive.thedailystar.net/law/2012/05/01/index.htm (accessed on 24 feb 2016).] [76: law commission people’s republic of bangladesh, review of legal education in bangladesh, final report, dhaka 2006 at 41. http://r.search.yahoo.com/_ylt=awrtcc6ziohwpumaooknnilq;_ylu=x3odmteybdg3mtj1bgnvbg8dz3exbhbvcwmxbhz0awqdqje3mthfmqrzzwmdc3i-/rv=2/re=1458082073/ro=10/ru=http%3a%2f%2fwww.lawcommissionbangladesh.org%2freports%2freport_84%2ffinal%2520report%2freview%2520of%2520legal%2520education%2520in%2520bangladesh-final%2520report.doc/rk=0/rs=niivruxv5joupwnldentwznpuxo(accessed on 15 march 2016).] [77: r. hoque, supra note 75. ] [78: http://www.lawcommissionbangladesh.org/reports/92.pdf (accessed on 13 may 2014).] [79: r. hoque, supra note 75. ] [80: ibid.] [81: c. farid, ‘new paths to justice: a tale of social justice lawyering in bangladesh’, 31(3) wisconsin international law journal 459 (2013-2014); r. hoque, room for improvement. http://www.dandc.eu/en/article/law-schools-must-do-much-better-job-bangladesh (accessed on 14 march 2016). ] [82: l. b. rahman, ‘to improve legal education’, the daily star (online), dhaka, bangladesh, february 17, 2015. http://www.thedailystar.net/law-and-our-rights/to-improve-legal-education-65253 (accessed on 18 february 2015).] however, as discussed earlier, international human rights norms recognise that lawyers have the obligation to protect the rights of their clients and promote the cause of justice. as a result, they call on states to establish legal education programmes that include appropriate training and activities in developing a service-mindedness among prospective lawyers towards legal aid work. particularly the principles and guidelines advances a collaborative approach between the government and law schools of the country. this collaboration is able to develop a sense of responsibility among the students to render legal services for the poor. it is also expected to increase the outreach and quality of the service. it has been further shown that the bar council of india has mandated legal aid activities within the academic curricula of law schools.[footnoteref:83] the nalsa has also made it obligatory for law schools to establish legal aid clinics by the adoption of the national legal services authority (legal aid clinics) scheme, 2011. as a result, despite various drawbacks, some indian law schools have established exemplary practices with regard to the establishment and conduct of effective legal aid clinics. in bangladesh, the lasa does not have any specific provision that requires legal aid services to be integrated into the legal education of the country in order to equip future lawyers with adequate service orientation and motivation. more specifically, the nlaso has not approached the bar council[footnoteref:84] or the university grants commission or issued any resolution to include the scheme of law clinics as a mandatory part of the academic curriculum. therefore, it can be said that, as regards the integration of legal aid activity, the current standard of indian legal education is more advanced than bangladesh. however, the strategic plan of the nlaso includes that the organisation aims to work for the integration of legal aid activities in law school curricula. although the plan is not clear as to how the current legal education system would be rearranged in order to contribute to legal services for the poor, the nlaso has started to cooperate with various student legal aid forums. it has organised workshops or seminars on different occasions.[footnoteref:85] this kind of initiative is commendable but the lack of provision in the lasa or the taking of concrete steps to incorporate legal aid clinics as a compulsory component is not able to produce any tangible and durable development in bangladeshi legal education for providing legal aid to the poor. therefore, the current provision of the lasa is not comprehensive with regard to the integration of legal aid activities in law school curricula as envisaged by international human rights standards. this requires the nlaso to take more vigilant initiatives so that law schools can be an effective avenue to render legal services to the poor. [83: see section 3.] [84: there are three bodies that regulate the legal profession in bangladesh: the district bar association in each district, supreme court bar association in the supreme court and the central institution is the bangladesh bar council. the bar council issues licenses to lawyers, and monitors the disciplinary and welfare activities of all lawyers.] [85: news of different events and activities of the nlaso and in general of the government legal aid services are posted in a facebook group, ‘national legal aid forum.’ officials of the nlaso are actively involved in the administration of this group. the link to the group is-https://web.facebook.com/groups/173549189481223/ (accessed on 20 april 2016).] 5. conclusion legal education builds the foundation of the service the legal community offers to any nation.[footnoteref:86] if law students at the formative stage of their career are exposed to legal aid services, they become motivated to deliver the service when they enter into professional life. international human rights norms have also recognised the role of legal education in creating a profession with sincere appreciation and commitment to the need to provide legal services to the poor. legal education in bangladesh, therefore, is required to explore the potential of clinical legal education with a compulsory component of legal aid programme as demonstrated by international human rights standards. the nlaso, university grants commission and bar council should make coordinated efforts to make this programme real and effective. in addition, bangladesh should follow the standard practices of particular indian law schools. however, given the drawbacks in the indian system, bangladesh should take appropriate measures so that clinical legal education programmes become a credit-earning course for the students. also, incentives should be provided to allow students to represent legal aid clients before the courts under the supervision of a senior lawyer or a law professor. law schools should undertake programmes to organise legal literacy camps and make adequate efforts for informing the community about their existence and the kind of services they offer. thus, law schools and legal aid committees can complement each other in the conduct of the legal services programme in bangladesh. [86: r. hoque, supra note 81.] __________________________ *farzana akter is assistant professor in the department of law at the university of dhaka. 172 192 1 editorial enhancing clinical legal education: facing challenges and exploring possibilities dr. lyndsey bengtsson lyndsey2.bengtsson@northumbria.ac.uk in our spring edition, readers will benefit from an analysis of the variety of ways in which clinical legal education can be enhanced. contributors consider how social justice teaching can be developed and the role clinics can play in supporting access to justice in the local community. we also delve into ways in which clinics can enhance reflection, legal analysis and our students’ ability to both understand and implement approaches which might build trust with their clients. firstly, jacqueline weinberg’s article explores the challenges of instilling in students the notion that social justice is important. one challenge is the expansion of clinical legal education and growth of externships where students are increasingly placed in law firms where their clients do not face barriers to access to justice. she explores how these challenges can be overcome to enhance students’ awareness of the importance of social justice and ensure that it remains a value they retain as future practitioners. mailto:lyndsey2.bengtsson@northumbria.ac.uk 2 another way in which social justice can be instilled in our students is through exceptional case funding (ecf) clinics and this is the subject of emma marshall’s article. she reflects on how setting up an ecf clinic offers students an opportunity to be involved with access to justice challenges in practice, whilst simultaneously improving access to legal aid by helping members of the public who need to access such funding. in her article she argues that ecf clinics serve an important function in supporting individuals to make applications, develop the students’ legal skills and gain direct experience of access to justice issues. students also gain experience of access to justice issues from undertaking a clinical module which involves volunteer work at their local citizens advice. in an article from lyndsey bengtsson, callum thomson, and bethany a’court, the benefits and challenges of the module are explored through a semi structured interview with the academic responsible for the module’s design and implementation. it is argued that the module not only develops students’ professional skills, but also empowers students to better understand access to justice challenges and enables them to play a key part in supporting their local community. gemma smyth, dusty johnstone, jillian rogin’s article evaluates a trauma informed educational module for law students in clinical settings with clients who experience low income. using open questions alongside a scenario, the authors analyse the effectiveness of the module and present their findings on how students interpret client behaviour before and after receiving trauma informed training. the results 3 indicate that the students’ ability to identify indicators of trauma in their clinical work increased, as did their ability to understand and implement approaches which might build trust with clients. also considering ways in which the students’ clinical experience can be enhanced, omar madhloom explores how unregulated law clinics can engage with immigration clients. although unregulated law clinics in england and wales are prohibited from directly offering immigration advice, he argues that this should not be a barrier to teaching immigration law. in this article, he provides an insight into how using kant’s ethics as a focus can provide students with a framework for identifying their moral duties and serve as a useful analytical tool for enhancing student reflection and analysis of the law. finally, we have a ‘from the field’ report from rachel dunn, siobhan mcconnell and lyndsey bengtsson which provides information about the creation of a new policy clinic network and an upcoming free workshop hosted by cleo. the workshop will take place on 13th may 2021 via zoom to share ideas for the network and future policy clinic/work ideas. the network aims to bring together academics who are, or want to, create impactful work through their teaching and engage with this kind education. all academics who are interested in this area, or who are involved in policy clinics/work and who wish to share best practice, are welcome to attend the workshop. 4 in our winter special issue, we benefited from an initial analysis of the experience of law teachers living through the unprecedented challenge of the global pandemic and rapidly adjusting their practice to meet the needs of both their students and clients. providing a flatform for us all to discuss the current challenges, and the extent to which they can be turned into opportunities, is this year’s ijcle conference. the conference is organised in partnership between the global alliance for justice education and association for canadian clinical legal education and will take place on 16-18 june 2021. the conference provides an opportunity to interact with fellow clinicians across the world in our new symposia. the conference also features the usual interactive workshops. for more information and instructions please see the attached link: https://northumbria.ac.uk/about-us/news-events/turning-challenges-intoopportunities the deadline for submission of your proposals and to take part in the conference is 7th may 2021. delegates are encouraged to submit their articles to the ijcle for review following this conference. we hope to build upon the special issue with a future edition which focuses on clinics and their response to the coronavirus pandemic. https://northumbria.ac.uk/about-us/news-events/turning-challenges-into-opportunities https://northumbria.ac.uk/about-us/news-events/turning-challenges-into-opportunities ‘you’re such a friendly group of people!’ reflections on the 7th australian clinical legal education conference associate professor jeff giddings* from july 9 to 11 2003, clinical legal education teachers and supporters from around the globe gathered at caloundra on the sunshine coast of queensland for the 7th australian clinical legal education conference. the law school of griffith university hosted the conference. while the objectivity of this conference report is open to question (i was the principal organiser), the program worked very well. almost without exception, participants commented on the friendly nature of the group and the value of the sessions they attended. the title of the conference was strengthening links between learning, service, research and practice. conference sessions were designed to encourage participants to more clearly articulate these links and to identify how the tensions between educational objectives, scholarship and community service can be as healthy as possible rather than problematic. we welcomed the strongest international contingent at any australian clinical conference which added greatly to the discussions. professor hugh brayne (university of sunderland), virginia grainer (victoria university of wellington), professor minna kotkin (brooklyn university), professor ved kumari (delhi university), fred rooney (city university of new york) and professor liz ryan cole (vermont law school) all either presented sessions or participated in panel discussions. pepe clarke, a former griffith law graduate, also made a presentation on behalf of the centre of human rights and environment, argentina and ted hill (university of the south pacific, vanuatu) also joined us. while contexts vary, there are clearly strong common threads binding together the work of clinical legal educators. conference participants heard two outstanding keynote presentations. simon rice, well known to many international clinicians from his time as director of kingsford legal centre, spoke of the genesis of clinical legal education as an ‘add-on’ – “more a back verandah than a new wing – to the langdellian castle of legal education method”. simon suggested that as advocates for clinical legal 90 journal of clinical legal education july 2004 *school of law, griffith university education, we “will forever be defensive, propping up the verandah on the back of the castle” if we “cannot establish the core legitimacy of clinical method within the law school’s own reason for being”. the second keynote paper, presented by judith dickson from la trobe, explored the role of clinic in linking law & justice. she challenged us to question our practices and emphasised the importance of looking outside our own programs and our own discipline and to collaborate as we reflect on our work and practices. judith expressed her strongly held view “that the only legitimate purpose for the continuance of clinical legal education programs in australian law schools is the integration of law and justice into the legal education curriculum. the role of clinic in legal education therefore is to be the means by which students and academics make the link between law and justice in practice.” the friendly environment of the conference tended to foster rather than stifle active discussion of the issues raised in the sessions. conference sessions addressed issues including future directions for clinics and clinicians, different models of clinic teaching, international developments in clinical teaching and learning, how clinical experiences influence students and teachers and the capacity of clinics to meet particular student and community needs. the future directions session included an interactive display of the technology used to deliver one of the griffith clinics and a discussion session on (the lack of) career paths for clinicians with input from minna kotkin and hugh brayne. there were also 3 presentations on developments in linking clinics and pro bono service providers, including a detailed paper from les mccrimmon (sydney). a session on different clinical methods saw a range of contributions from experienced clinicians designed with the aim of informing less experienced teachers. two extended workshops were conducted on the second morning. adrian evans (monash) and kieran tranter (griffith) put participants on the spot in a series of hypothetical scenarios designed to explore the values clinic teachers bring to their work. a supervision skills workshop identified the range of student-focussed and client-focussed purposes people seek to achieve through their supervision. the tensions between serving the best interests of clients and students were very clear here. australian clinical law programs have been very effective in serving a range of communities. the delivery of community services has tended to receive greater priority than the development of research opportunities. the conference provided the opportunity for presenters to receive feedback on work-in-progress and to identify issues ripe for further research and writing. a session on fostering the involvement of indigenous students in clinical programs has led to work exploring links between indigenous and clinic-based ways of learning. griffith law school also ran 2 post-conference events. on july 14, 30 people attended a 4-hour workshop on developing human rights agendas through clinical programs. the workshop considered how community organisations and interested individuals can work with law schools towards the development of stronger community understanding of the importance of the law in fostering respect for human rights. the workshop focussed on efforts designed to protect and extend the human rights of refugees in australia. anna copeland (murdoch) and kirsten hagon (refugee advice, information and legal service) provided a range of suggestions for how law schools can best work with other ‘you’re such a friendly group of people!’ reflections on the 7th australian clinical legal education conference 91 organisations committed to supporting refugees. anna’s account of her experiences working with refugees at the murdoch clinic and kirsten’s overview of working with a wide range of community organisations combined very effectively. on july 15, hugh brayne and fred rooney spoke at a seminar, pro bono service delivery: international developments, providing quite different perspectives on the potential for increased pro bono legal service contributions. fred outlined the ‘low bono’ network of local lawyers supported by the city university of new york while hugh expressed concerns at the ability of small english law firms to make significant pro bono contributions. organising the conference, workshop and seminar involved a great deal of work but was particularly useful for the griffith clinical program, informing the development of our strategic plan for 2004–2007. the strong and supportive australian clinical network was reinforced by the experiences shared and contacts made and important international links were also developed. monash law school will host the next australian clinical conference, probably in 2005. 92 journal of clinical legal education july 2004 announcement second conference of the international journal of clinical legal education 14th and 15th july 2004, edinburgh, uk. the second ijcle conference is taking place in edinburgh this year (14th and 15th july) with the usual wide range of speakers from all the major clinical jurisditions. the theme of this year’s conference – clinical education: who benefits? – is proving broad enough to encompass papers on the teaching of lawyering skills to our students, the sustainability of clinics, and reviews of clinical education in jurisdictions as diverse as south africa and the south pacific. details of the conference are up on the conference website: http://northumbria.ac.uk/sd/academic/law/conferences/cleconf/. any enquiries should be directed to philip plowden: philip.plowden@northumbria.ac.uk announcement 93 94 journal of clinical legal education july 2004 310229_april ed 2 inner “walking on two legs in chinese law schools”1: a chinese / u.s. program in experiential legal education brian landsberg* dong jingbo, a young faculty member at the china university of political science and law in beijing, used to teach using only the traditional lecture technique which she had experienced in her own legal education in china and korea. until, that is, professor dong attended summer workshops given by pacific mcgeorge, in partnership with american university’s washington college of law, and also earned an ll.m. at pacific mcgeorge, in the teaching of advocacy. her classes no longer are limited to lecture. she has developed a simulation to use in chinese criminal law classes, has demonstrated it to other chinese law professors and has written a law review article about it.2 the simulation is based on a news story about a man who used his wife’s atm card to make two successive withdrawals of 10,000 rmb, while the receipts reflected a total withdrawal of only 2 rmb, and even though his wife had only 10,000 rmb in her account. the man was charged with theft. professor dong assigns students to play the role of the prosecutor, defense counsel and judge. they are given the definition of theft, and must argue and decide the case. she then provides a series of additional facts, requiring deeper analysis. introduction of this role play into the class builds on learning theory to provide deeper 38 international journal of clinical legal education summer 2011 1 a report in march 2010 from southwest university of science and technology law school, regarding a workshop our us aid program conducted in wuhan, china in december 2009 informed us: “after much discussion, our teachers adopted ‘walking on two legs’ guiding principle for the practical teaching reform; it means legal clinic teaching and traditional teaching develop in a twopronged way to promote the experiential teaching.” translated by wang yongmei, e-mail to brian landsberg, april 2, 2010. * distinguished professor and scholar, pacific mcgeorge school of law, sacramento ca, united states of america. there are many people to thank: those who have participated in our program, who are too numerous to list, and those who have graciously commented on earlier drafts. first, however, i want to express gratitude to elliott milstein, who brought great passion and depth of understanding to the program, as well as commenting on a draft of this article. frank bloch, jay leach, thomas main, jarrod wong, and dorothy landsberg have provided very helpful suggestions. 2 dong jingbo, how to incorporate simulations in traditional courses, china legal education, 2009, volume 3. she is also co-teaching a new course in understanding of the elements of the crime of theft than a student could obtain by listening to a lecture. moreover, this learning by doing encourages analysis, fact development, understanding of the important role of the theory of the case, and independent thinking. for these reasons, and as our experience in china affirms, role play is a useful learning method in traditional, simulation, and clinical law courses. our “educate the educators” program to teach chinese law professors such as professor dong u.s. experiential education techniques has itself taught us many lessons. perhaps the most important – and one amply supported by experience – is that law schools should adopt an integrated legal education approach, blending traditional, simulation, and clinical law courses. each type adds value to legal education; each reinforces the learning under the other two methods. in varying degrees legal educators in many countries, including the united states and china, have come to accept the need to find more effective ways to teach professional skill and values. i believe that experiential teaching methods best meet that need. experiential education refers to learning by doing. the main branches are clinical education, where students represent real clients, and simulation courses where students work with case files to represent fictional clients in client counseling, business planning, negotiation, mediation, arbitration, trial advocacy, and appellate advocacy. these two branches can be understood as belonging to the same tree. as frank bloch has put it, “three elements stand out as constituting the most important commonly conceived notions of clinical legal education around the world: professional skills training, experiential learning, and instilling professional values of public responsibility and social justice.”3 these observations form the base upon which the pacific mcgeorge school of law built a program to educate chinese law professors in experiential teaching methods, especially as used in professional legal skills courses and clinical legal education courses. although lecture is the traditional teaching method in china, chinese law schools have shown a growing interest in “practical” education, partly under prodding from the ministry of education. as elliott milstein noted at our recent training for chinese law professors in wuhan, china today calls to mind an earlier moment in the development of u.s. legal education, when, in the 1960’s and 1970’s, with support from the ford foundation, law schools began an era of experimentation and openness to new ideas, and when new organizations arose to promote clinical legal education.4 this movement not only promoted skills education but also the transmission of values: providing platforms to enable students to learn what it means to be a lawyer, including promotion of a more just society. the history of that movement has been marked by continued challenges which persist to the present day, but overall clinical education has advanced in the united states, and the american bar association recognizes its importance to legal education.5 our program for chinese law professors began in 2006 with a “rule of law” grant from the united “walking on two legs in chinese law schools” 39 advocacy skills. moreover, she is now part of the chinese faculty training other chinese law professors in experiential legal education, as part of the second phase of our program. she is writing a book about advocacy education. 3 frank s. bloch, access to justice and the global clinical movement, 28 wash. u. j. l. & pol’y 111, 121 (2008). 4 see robert maccrate, foreword, in roy stuckey and others, best practices for legal education, vii (clinical legal education association 2007). 5 aba standard 302(b)(1) requires law schools provide “substantial opportunities” for students to take live client clinical or externship courses. standard 405 requires that clinical faculty be given “a form of security of position reasonably similar to tenure.” states agency for international development (us aid) based on two premises. first, the rule of law depends upon the existence of lawyers, judges, and prosecutors with professional skills and a professional identity based on values.6 second, experiential legal education is an essential method for inculcating skills and professional values. these premises were validated by the publication the following year of the carnegie foundation report7 and best practices in legal education.8 an unstated premise of our proposal was that u.s. assistance in promoting the rule of law in china would have to come primarily through indirect means. in the words of one western scholar of chinese law: “foreign actors lack the local knowledge and the influence to significantly shape the outcome.”9 we recognized from the beginning that cross-cultural and cross-system legal training ultimately depends upon the chinese trainees to design appropriate curricula and adopt appropriate teaching methods, by combining their understanding of local culture and legal system with their learning from the training. we aspired thus to empower chinese law professors. these premises seem to be consistent with chinese government and academic thinking. hu jintao expressed commitment to “comprehensively implement the rule of law as a fundamental principle and speed up the building of a socialist country under the rule of law.” he noted the need to “strengthen the enforcement of the constitution and laws, ensure that all citizens are equal before the law, and safeguard social equity and justice and the consistency, sanctity and authority of the socialist legal system.”10 achievement of these goals requires a well-trained, ethical professional 40 international journal of clinical legal education summer 2011 6 professionalism is a necessary, but not a sufficient prerequisite to the rule of law. rule of law also depends upon the structure and content of the legal system. but a well designed structure and just laws are unlikely to bring about the rule of law if the lawyers and judges lack professional skills and values. for example, “an independent and authoritative judiciary assumes a competent and clean corps of judges.” randall peerenboom, judicial independence in china: common myths and unfounded assumptions, in randall peerenboom [ed.], judicial independence in china: lessons for global rule of law promotion, 69, 87 (cambridge univ. press 2010). see also stéphanie balme, local courts in western china: the quest for independence and dignity, in peerenboom [ed.], supra, 154, 173 [“professionalism and transparency are both an objective and a precondition for the independence of the judiciary”]. as one chinese legal scholar put it, “if there are only legal rules without highlyqualified law professionals, the rule of law is like a castle in the air.” mao ling, clinical legal education and the reform of the higher legal education system in china, 30 fordham int’l l.j. 421 (2007). william p. alford warns against assuming that the legal profession in china will promote the rule of law; indeed, he suggests that it has been complicit in corrupt practices. william p. alford, of lawyers lost and found: searching for legal professionalism in the people’s republic of china, in william p. alford, raising the bar: the emerging legal profession in east asia, 287, 293 (harvard univ. press 2003). but see, xiaorong li, “aspiration for rule of law spurs chinese civil society”, presentation at george washington university law school, feb. 19, 2010: “first, the promise of rule of law gave people hope, inspired them, and the law supplied the ammunition. the chinese law has been the doublesword which the party-state uses to put people in their place but it is also used by the people to hold the government accountable and seek justice. second, many young lawyers, products of the newly minted law schools in china’s universities, take the government’s promise of rule of law and what they learnt in law textbooks literarily, but as they meet the reality of rule by the ccp political and legal committees, they become the front-row challengers of the system, and leaders in the civil rights movement.” 7 william m. sullivan, anne colby, judith welch wegner, lloyd bond, lee s. shulman, educating lawyers: preparation for the profession of law (john wiley & sons 2007). 8 roy stuckey and others, best practices for legal education (clinical legal education association 2007). 9 peerenboom, supra, at 88. see also, paul gewirtz, the u.s.-china rule of law initiative, 11 wm & mary bill rts. j. 603, 620 (2002-3)(“this kind of cooperative work must be done in a spirit of multiple humilities”). 10 hu jintao, report to 17th national congress of the communist party of china, oct. 15, 2007, h t t p : / / n e w s. x i n h u a n e t . c o m / e n g l i s h / 2 0 0 7 10/24/content_6938749.htm. elliott milstein has cadre of lawyers and judges. the latter, in turn, depends upon the committed training by chinese law schools of tomorrow’s lawyers and judges. as professor guo jie, vice-president of northwest university of political science and law, has observed: “the outcome of the legal education will influence and even decide, in some sense, the direction, process and future of the judicial reform and development of the whole country.”11 i this article describes how our “rule of law” program has been structured and will be structured going forward and the methods used in the program. it then turns to the challenges we have faced and will face going forward and the lessons we have learned. it concludes with a discussion of the program’s impact. in designing our program, we were struck by the seeming consensus among many chinese educators at a conference of chinese and american law school deans in beijing in 2005. professor huang jin of wuhan university noted that china needs a large number of lawyers equipped to perform on the global market. he believed that although lawyers should be professionals with practical problem-solving abilities, the curriculum neglected practical skills. president huai xiaofeng of the national judges college also mentioned the need to enhance the problem-solving ability of students, as well as their professional ethics and ability to handle trials and mediation. another speaker, from china university of political science and law (cupl), also noted that practical skills training in china was under-developed.12 the list of core and elective courses taught in china consists almost entirely of doctrinal courses rather than skills courses. it is unclear from the list how many of those courses also have an analytical component, such as the u.s. case discussion method. professor wang weiguo has written that “the socrates method, or in chinese usage ‘elicitation method (qi-fa-shi)’, is always encouraged.” however, he also refers to mock court as a student-organized activity, with some faculty guidance.13 professor huang jin has noted that in china some “consider legal education as quality education, some as academic education, some as professional education.”14 finally, professor cai yanmin, a leader in china’s clinical education “walking on two legs in chinese law schools” 41 described the belief of chinese participants in our program “that if clinical education is widely introduced, including simulations and the real case method, this will change the entire vision of legal education and lead to wider understanding of the value of the rule of law.” elliott s. milstein, experiential education and the rule of law: teaching values through clinical education in china, 22 pac. mcgeorge global bus. & dev. l.j. 55, 56 (2009). he adds that “professor teng [hongqing, of south china university of technology] insists that in order to move the idea of a just society from a romantic ideal to a reality, students need to come out of law school knowing rules and possessing the skills to combine facts with the rules to successfully deal with real cases.” id. at 57. 11 guo jie, reform of legal training and education pattern of llb programs – a study and experience from northwest university of political science and law, in conference book for chinese and american law deans’ conference, beijing, april 1, 2005, p.22. see also matthew s. erie, legal education reform in china through u.s.-inspired transplants, 59 j. legal ed. 60, 88 (2009)(“from the u.s. perspective, the contemporary drive to institute rol in china concentrates much of its resources, manpower, and funding on training the next generation of lawyers via methodologies developed in the u.s. with the intent that these lawyers will be agents of change toward a more open, rights-based china”). 12 author’s notes on presentations at chinese and american law school deans’ conference, beijing, china, march 31-april 2, 2005. 13 wang weiguo, a brief introduction to the legal education in china, http://www.aals.org/2000 international/english/chinaintro.htm. 14 huang jin, the structure of legal education in china, http://www.aals.org/2000international/ english/china.htm . movement, argued: “constructing clinical legal education programs in china is not a denial or replacement of the current chinese legal education, but a reform and improvement of it. therefore, the chinese legal education shall formally incorporate clinical legal education into its curriculum.”15 this emphasis on experiential education, while an abrupt change from most current education in chinese law schools, may not be foreign to chinese culture, as exemplified by this aphorism attributed to confucius: “i hear and i forget. i see and i remember. i do and i understand.”16 taking our cue from these chinese scholars, our program undertakes to educate the educators. experiential legal education is not intuitive or easy, and its success depends upon the existence of educators who understand the theories and methods of delivering lawyering skills. u.s. professors initially developed theories and methods through trial and error, interdisciplinary research, and sharing of information.17 u.s. clinicians formed the clinical legal education association and the clinic section of the association of american law schools, created the clinical law journal, and wrote books and articles grounded in theory. in that process, “[c]linicians have developed a very strong sense of community with one another.”18 the american association of law schools offers conferences and five-day workshops that provide training to clinicians. some schools, such as yale law school and georgetown law center offer two-year fellowships to lawyers who wish to become clinicians.19 however, there is little other formal training of u.s. faculty in experiential legal education. our program was based on our belief that it is feasible and desirable to provide such education to law faculty members in general, including those from chinese law schools. our program is designed to create multiplier effects: chinese faculty trained in phase i of the program are now educating other chinese faculty in phase ii. all the trained faculty use experiential methods to teach their students. in addition, chinese professors who have completed our training program can then spread experiential education in other ways, such as writing books and articles and creating simulation case files. this approach is similar to prior activity by the ford foundation, and the committee of chinese clinical legal educators, as well as yale, columbia, 42 international journal of clinical legal education summer 2011 15 cai yanmin, the key issues in the institutionalization of the clinical legal education in china, materials from chinese and american law school deans’ conference, beijing, china, march 31-april 2, 2005. 16 quotation #25848 from laura moncur's motivational quotations, http://www.quotations page.com/quote/25848.html , viewed on january 25, 2010. see david f. chavkin, experiential learning: a critical element of legal education in china (and elsewhere), 22 pac. mcgeorge global bus. & dev. l.j. 3 (2009). another author quotes confucius as saying: “what i hear, i forget. what i hear and see, i remember a little. what i hear, see and do, i acquire some knowledge and skill. what i hear, see, do and discuss with another, i begin to understand.” jay pottenger, the role of [clinical] legal education in legal reform in the people’s republic of china: chicken, egg --or fox?, 6 int’l. j. clinical legal educ. 65, 73 (2004). another version, attributed to an ancient chinese proverb, is “tell me, i forget. show me, i may remember. involve me, and i understand.” fran quigley, seizing the disorienting moment: adult learning theory and the teaching of social justice in law school clinics, 2 clinical l. rev. 37, 50 (1995). 17 see willliam m. sullivan, anne colby, judith welch wegner, lloyd bond, and lee s. shulman, educating lawyers: preparation for the profession of law, 91-95 (john wiley & sons 2007). 18 nina w. tarr, current issues in clinical legal education, 37 howard l. j. 31, 44 (1993). 19 see http://www.law.yale.edu/documents/pdf/cover_ fellowship.pdf for a description of the yale fellowships. the georgetown fellowships are meant “to provide highly motivated lawyers the chance to develop skills as teachers and legal advocates within an exciting and supportive educational environment.” http://www.law.georgetown.edu/ clinics/fellowships.html, viewed on march 4, 2010. georgetown and other law schools.20 it differs from other prior u.s. involvement in chinese legal education, which largely consisted either of u.s. teachers teaching chinese law students or of u.s. entities funding programs they deem beneficial. a multiplier program aims for self-sustaining long range effect, by emphasizing the creation of a cadre of chinese academics who have participated in creating experiential curricula based on chinese needs and circumstances.21 after receiving the us aid grant, we held a planning session with our partner schools at zhejiang gongshang university in hangzhou in december 2006. we had recruited one u.s. partner, american university’s washington college of law, which offers one of the top clinical programs in the united states. our chinese partner schools covered a spectrum: china university of political science and law is one of china’s top law schools and had created several clinics in 2004 with assistance from the ford foundation. zhejiang gongshang university (zgu) is a provincial university whose law school, operating under a dynamic relatively young dean, qingjiang kong, is firmly committed to becoming a leader in experiential education. it had formed zhejiang province’s first legal clinic in 2005, on an experimental basis. south china university of science and technology (scut) is recognized by the chinese government as a “key university” and has a fairly new law school and clinical program, some of whose faculty shows great interest in experiential education. while all three chinese partners already offered their students a mock trial program, this programs was voluntary, not for credit, and teachers were also volunteers. the planning session was an essential first step in creating relationships and in educating one another on our respective legal and educational systems. we emphasized from the outset that our program was to be a sino-us collaboration, not a top down program from the u.s. to china.22 the bulk of the meeting was devoted to presentations by chinese legal educators and judges on the current state of chinese legal education and on the chinese legal system, followed by questions “walking on two legs in chinese law schools” 43 20 for example, in 2000 chinese and u.s. clinical educators conducted a one week training conference at wuhan university, followed by an autumn week long training at yale and a december forum at renmin university in beijing. see cai yanmin and j.l. pottenger, jr., the “chinese characteristics” of clinical legal education, in frank s. bloch, the global clinical movement: educating lawyers for social justice 87, 92 (oxford university press 2010). columbia law school adopted a “train the trainers” approach in 1979, and in 1983 the committee on legal exchange with china (cleec) was formed and began bringing to u.s. law schools young chinese law teachers for training. r. randle edwards, thirty years of legal exchange with china: the columbia law school role, 23 colum.j.asian l. 3, 10-12 (2009). in 1997 a u.s.-china summit meeting led to the adoption of a joint statement providing for cooperation between the two countries in the field of law, which led to a conference of law deans on expanded cooperation on legal education. paul gewirtz, the u.s.-china rule of law initiative, 11 wm & mary bill rts. j. 603, 613 (2002-3). see also the testimonials to the yale china program, at http://www.yalechina.org/ testimonials.php?id=10&subid=95, viewed on may 14, 2010. 21 an early study of clinical programs in china distinguishes between reductive and pragmatic strategies. in a reductive strategy “we know at the commencement of the developmental process what the institution being ‘developed ‘should look like after that development is completed.” a pragmatic strategy makes “the discovery of developmental paradigms the goal of the project, rather than a prior (and hence ideological) condition for the project.” the reductive strategy focuses primarily on training, while pragmatic strategies focus more on discourse. michael william dowdle, preserving indigenous paradigms in an age of globalization: pragmatic strategies for the development of clinical legal aid in china, 24 fordham int’l. l.j. s56, s59, s73-s74 (1980). our program emphasizes the pragmatic strategy, recognizing, though, that this is a matter of degree rather an absolute. 22 the program is consistent with the premise “that legal education reform in china proceeds by the ‘pull’ of domestic actors more than the ‘push’ of external reformers.” matthew s. erie, legal education reform in china through u.s.-inspired transplants, 59 j. legal ed. 60, 62 (2009). from the u.s. participants. when the u.s. participants stressed that we were not there to tell chinese educators what to do, chinese legal scholars responded that the u.s. professors were the experts on experiential education and that chinese law schools wanted us to tell them how to provide it. our meeting also exposed disagreements among the chinese about the relevance of teaching trial skills such as cross examination and opening statements and closing arguments. some welcomed that emphasis, arguing that the judge-centered civil law system that governed chinese trials was gradually giving way to a more adversarial system; others saw no evidence that that was happening. all agreed, however, on the basic proposition that chinese legal education needed to include clinical and professional skills courses – learning by doing, and abandon its pervasive reliance on the lecture system. at the same time, however, there was general agreement with the sentiment subsequently expressed by a leading chinese scholar: “[w]e should not take a model deeply embedded in the historical, institutional, theoretical, and discursive contexts of the west, decontextualize it, and accept it uncritically as the standard of reference for china’s experience.”23 we continued dialogue with our chinese partner schools during week-long visits to each. on-site visits not only enhanced the building of relationships, but enabled further exchange about the objectives and methods of the program and provided greater understanding of the existing curriculum and of possibilities for change. we were also able during these visits to interview applicants for the ll.m. programs described below. during this trip we also learned about other important players, such as the cccle, the ford foundation, yale-china, the american bar association rule of law project, international bridges to justice, the asia foundation, and the temple law school program. each of them has provided us with insights into the needs of chinese legal education. finally, we had the benefit of a board of advisors, half of them nominated by our chinese partner schools; we were able to meet with most of our advisors during this trip. they include scholars, judges, practitioners, and a consultant and have provided helpful suggestions and insights, as well as lending legitimacy in the eyes of chinese educators.24 ii. our program emerged from this crucible by creating three distinct platforms for educating the educators. 1. pacific mcgeorge school of law created an ll.m. in experiential law teaching. over the course of three years eight chinese law teachers will have earned this ll.m. the heart of the ll.m. is found in a seminar on teaching methods and in 44 international journal of clinical legal education summer 2011 23 zhu suli, the party and the courts, in randall peerenbaum [ed.], judicial independence in china: lessons for global rule of law promotion, 52, 65 (cambridge univ. press 2010). see also, julie davies, methods of experiential education: context, transferability and resources, 22 pacific mcgeorge global bus. & devel. l.j. 21 (2009) (noting the need to avoid the unsuccessful effort of the 1950s and 1960s to spread the u.s. law and development movement to other countries); matthew s. erie, supra, at 87, 95 (noting the need for joint prc-u.s. training programs to cultivate grassroots legal transplants). 24 for example, at the january 26, 2008 meeting of the board of advisors, we discussed how to improve the summer workshops by creating material more adapted to chinese needs and by use of chinese faculty as some of the trainers. other topics included the need to stress legal ethics and the possibility of using part of the workshop time for the trainees to develop simulation materials. all of these suggestions were incorporated in later trainings. a thesis requirement; enrollees also take lawyering skills courses and will shadow clinical law teachers. the theses typically discuss the applicability of experiential techniques to a chinese law school course, including concrete plans or case simulations. we also have sent three chinese law teachers to receive an ll.m. from american university’s washington college of law (wcl). these students worked extensively with wcl’s clinical faculty and wrote theses on clinical education. 2. workshops in china for chinese law school faculty members. we have held two threeweek summer workshops, a two-day workshop, and a one-week winter workshop in which numerous chinese faculty have interactively learned how to teach clinics and lawyering skills such as persuasion, interview, examination, negotiation. in the first two workshops half the participants studied clinical education and half studied professional skills education. in subsequent workshops we have merged the teaching of these two forms of experiential education. 3. two scholarly conferences of chinese and u.s. faculty, focused on experiential education in china. the papers from the first conference have been published and the papers from both are available on-line, in both chinese and english. within these platforms our primary method of educating the educators is learning by doing. after initial discussion of the objectives of clinical and lawyering skills legal education, the teaching proceeds through three stages: first, the trainees participate in simulations – role plays and demonstrations – taking the role of law students. the simulations themselves use a tripartite method: students describe objectives, engage in the simulation, and then reflect on both what worked and what didn’t work to achieve the objectives.25 second, they learn to teach students experientially, through meta-simulations involving other participants playing the role of students, in which they evaluate and critique and elicit reflection, with feedback from the trainers.26 after progressing from what we teach to how we teach it, the third step is to enlist the chinese trainees as trainers, who teach the “what” and the “how” to other chinese law faculty. these skills are taught in various contexts, including clinical seminar discussion, case rounds, one-on-one supervision, client counseling, negotiation, arbitration, legal writing. throughout this process we encourage discussion of the objectives of experiential education and of which techniques best serve those objectives in the context of chinese law schools. the u.s. faculty began with expertise in clinical and lawyering skills education, but not in chinese law or language. similarly, the written materials with which we were familiar were u.s.-centric. for our first advocacy training we got permission from the national institute of trial advocacy to adapt one of its case files into the context of an arbitration governed by the rules of the chinese. we used an arbitration rather than a court case because of our lack of expertise in chinese judicial procedure. the rules of the china international economic and trade arbitration commission (cietac), a chinese arbitral body, are similar to other international western arbitration rules. “walking on two legs in chinese law schools” 45 25 the reflection may follow the feedback model described in beryl blaustone, teaching law students to self-critique and to develop critical clinical selfawareness in performance, 13 clinical l. rev. 143 (2006). 26 for illustrations of these techniques, view the video at http://www.mcgeorge.edu/experiential_education _in_china/curriculum_materials/dvd_content.h tm. both our clinical and advocacy trainees, however, became involved in creating experiential exercises within the chinese context. for example, in our first clinical workshop, the chinese trainees created a simulation in which the “clients” brought the “student practitioners” fruit and a red envelope containing cash. the trainees playing the role of supervising “professors” of the clinic then guided the “students” through reflections on what to do with the fruit [a gift to them] and the envelope [intended as a gift to the judge].27 in the second clinical workshop, students interviewed a real client in front of the trainees and then faculty guided them through reflections on the goals and techniques of the interview. in the second advocacy workshop, trainees created simulation case files suitable for use in chinese law schools, and those five case files were subsequently published.28 we ended each day by asking participants to fill out a “two-minute wrap-up,” and we reviewed the completed forms each evening. the form asked for a rating of the day’s work, an explanation of the rating, and what questions remain unanswered regarding the day’s topic. this enabled us to adjust the following day’s session to address unanswered questions. finally, the addition of chinese trainers after the first year enhanced our ability to provide training that would be optimal for chinese trainees. iii. we have faced two types of challenges: challenges based on difference and challenges that flowed from the type of experiential education we are teaching. the differences are many: the legal systems, the educational systems, the languages, the cultures. a.1. the legal systems differ in several ways. china mainly follows the civil law system, while the u.s. is a common law system. case law, thus, assumes a much less important role in china than in the u.s. china, like most civil law jurisdictions, uses an inquisitorial procedure while the u.s. uses the adversary system. china lacks compulsory process of witnesses, so usually the record in a case is primarily paper rather than oral testimony. as a practical matter, a chinese clinical student facing possible litigation will need to focus on how to muster facts in a paper record and will give less emphasis to live witness development. we decided, though, that the job of the lawyer in both systems is one of problem solving and persuasion and that if we taught about basic advocacy techniques with which we were most familiar, such as direct and cross examination and opening statements and closing argument, the chinese professors would be able to adapt those techniques to the chinese system.29 they generally began learning these techniques with some skepticism, but eventually came to find them very valuable and transferable. the key to transferability is adaptation 46 international journal of clinical legal education summer 2011 27 described in elliott s. milstein, experiential education and the rule of law: teaching values through clinical education in china, 22 pac. mcgeorge global bus. & dev. l.j. 55, 59 (2009). 28 luo wenyan and brian landsberg (eds.), representing the client, [in chinese], zhejiang gongshang university press 2008. 29 this conclusion was supported by limited observation of a chinese trial and of chinese law school mock trials. my notes on one such mock trial in may 2007 say: “observed two hour moot court criminal trial. on one hand, attorneys were very active and seemed like adversaries; on the other hand, there were only three witnesses, and their examination was quite brief. quite a bit of time taken arguing facts and law and presenting evidence such as the weapon and expert reports [experts don’t testify]. a student journalist took pictures for an internet report on the trial. organizer will give me a disc of the moot court. one professor came in briefly….” to local circumstances. “the significance and nature of such skills as fact investigation, litigation, and alternative dispute resolution … differ in ways that chinese clinicians need to consider when developing their own course syllabi.”30 china’s legal system is also, at least nominally, a communist legal system. the legal system must act in harmony with the communist party, while the united states’ legal system reflects capitalist and democratic values. this leads to different conceptions of the rule of law. china officially embraces the rule of law.31 what that means is not at all clear and may differ from one person to the next. jerome cohen has pointed out that this means a “political-legal” system in which “to an unusual extent, ‘politics takes command,’ as the slogan puts it, at least in the many types of cases the state regards as ‘politically sensitive.’32 moreover, even though china’s legal history is millennia longer than that of the united states, china had to reinvent its legal system after the cultural revolution. as jianfu chen has pointed out, “rule of law” is largely a western notion, and modern china has used the term “yifa zhiguo, jianshe shehuizhuyi fazhi guojia”, or “ruling the country according to law and building a socialist country governed by law.”33 jiang ping, noting that the story of rule of law in china has been two steps forward and one step backward, also tells us that “more and more people are genuinely interested in the fate of china's rule of law.” he adds that “lawyers definitely don't only want to make money; many lawyers have come to understand and think about our country's destiny, the future of the rule of law, and the protection of human rights.”34 “walking on two legs in chinese law schools” 47 30 pamela n. phan, clinical legal education in china: in pursuit of a culture of law and a mission of social justice, 8 yale h.r. & dev. l.j. 117, 140 (2005). jay pottenger has observed that “the addition of ‘chinese characteriscs’ to clinical methodology is most crucial, most delicate in the area of legal ethics and professional responsibility,” which are key to our objective of promoting rule of law. jay pottenger, the role of [clinical] legal education in legal reform in the people’s republic of china: chicken, egg – or fox?, 6 int’l. j. clinical legal educ. 65, 72 (2004). 31 see hu jintao, at n. 10, infra. premier wen jiabao spoke to students at china university of political science and law in december 2009. he described rule of law this way: “what is the spirit of rule of law? briefly speaking, i think it is to create a world ruled by law (法治天下), as is inscribed on the rock near the gate of your university…. ‘to create a world ruled by law’ indicates that law is more powerful than the world. therefore, i can say that the world which is overridden by law shall be ruled by law. i think such a vivid statement grasps the core of the spirit of rule of law. to specify the spirit, i want to say five points. first of all, the dignity of the constitution as well as laws transcends all; second, all people are equal before the law; third, all organizations and institutions shall undertake activities within the scope of the constitution and laws; fourth, laws shall be made in a democratic manner and be publicized and popularized among the masses; last but not least, see to it that there are laws to go by, the laws are observed and strictly enforced, and law-breakers are prosecuted. a chinese saying goes that ‘the difficult lies not in legislation, but in implementation’ (天下之事不难于⽴法，⽽难于法之必⾏). if laws are not fully observed, why should we have them?” quoted at http://www.moe.edu.cn/edoas/en/level3 .jsp?tablename=1245221141523299&infoid=12617 26002105485&title=premier wen jiabao discusses rule of law with university students , viewed on feb. 16, 2010, attributed to legal daily (december 4, 2009)(editor in charge: liu yi; translator: jiang jianfeng). 32 jerome a. cohen, china's hollow 'rule of law', cnn opinion, dec. 31, 2009, http://www.cnn.com/2009/ opinion/12/31/cohen.china.dissidents/index.htm l , viewed feb. 1, 2010. see also a study of the treatment by the courts and the party of “married out women” in guangdong province, which “illustrates the complexity of the judicial decisionmaking process … where elements of law, power, and politics all come into play.” xin he, the judiciary pushes back: law, power, and politics in chinese courts, peerenbaum (ed.), supra, 180, 193. 33 jianfu chen, chinese law: context and transformation, 694-95 (martinus nijhoff 2008). 34 jiang ping, china's rule of law is in full retreat, february 21, 2010, anonymous translator. original speech is at http://sunguodong2002.blog. sohu.com/144164134.html , viewed on march 3, 2010. china’s courts do not have the history of independence that u.s. courts have achieved, and they continue to suffer from a large number of poorly qualified judges35 and from corruption36. concepts such as the lawyer’s duties of zealous advocacy and confidentiality may not apply in china.37 in our program we have taken the position that exposure to the western legal systems’ values of due process and transparency and lawyer-client relations are central to the rule of law. accordingly, their adoption would help the chinese law professors educate future lawyers and judges to respect the rule of law. participants read materials about the lawyer-client relationship and discussed how to supervise clinical students in their representation of clients. our stress on the concept of client centered lawyering met initial resistance, partly because it seems inconsistent with a hierarchy that places the lawyer above the client38 and partly because the chinese professors thought it “meant that american lawyers did whatever their clients wanted them to do.” however, after hearing that the concept stands for assisting “clients in making decisions in which competing values of the client are at stake,” the chinese professors are reevaluating whether client centered lawyering is consistent with chinese values.39 for our august 2009 training, professor xu shenjian of the china university of political science and law created a power point presentation on client centered lawyering, an indication that the concept is taking hold in china. discussion of theory of the case underscored that the attorney must be able to tell the client’s story in a sympathetic and convincing way. a.2. we also had to recognize important differences between the educational systems. one set of differences is in the students. as in much of the world, law is an undergraduate degree in china, though an increasing number of chinese law graduates go on to study for an llm or jm degree.40 of course, in the united states it is a graduate program. the chinese government describes the legal education system as one that “combines the education of law majors and vocational 48 international journal of clinical legal education summer 2011 35 id., at 679-80. 36 chief justice wang shengjun has observed that nearly 800 court officials were punished for violating laws in 2009. prosecutor-general cao jianming noted that prosecutors would make efforts to “resolutely punish corrupt act in the judicial sector to purify the judicial team and safeguard integrity and justice.” top china judge bangs gavel: we won’t abide dirty officials, shanghai daily, march 12, 2010, p. a3. see also, nanping liu, trick or treat: legal reasoning in the shadow of corruption in the people’s republic of china, 34 n.c. j. int’l. l. & com. reg. 179 (2008). 37 see daniel c.k. chow, the legal system of the people’s republic of china in a nutshell, 250-258 (west 2009) (citing problems of independence of lawyers, professional competence, and professional ethics). 38 a related point is that “the lack of attention to client interests may reflect both a traditional lack of emphasis on individuals in the chinese legal system, and a government view that legal aid serves the state and that individual and state interests cannot be divorced.” benjamin l. liebman, lawyers, legal aid, and legitimacy in china, in william p. alford, raising the bar: the emerging legal profession in east asia, 311, 346 (harvard univ. press 2003). 39 elliott milstein, experiential education and the rule of law: teaching values through clinical education in china, 22 pacific mcgeorge global bus. & devel. l.j. 55, 61 (2009). client centered lawyering was already a tenet of the wuhan university clinic. pamela n. phan, clinical legal education in china: in pursuit of a culture of law and a mission of social justice, 8 yale h.r. & dev. l.j. 117, 136 (2005). 40 see matthew s. erie, legal education reform in china through u.s.-inspired transplants, 39 j. legal ed. 60, 68 (2009), stating “it is the goal of the moj [ministry of justice] and most educators to transform the study of prc law… to a postgraduate professional school….” education in law.”41 many undergraduate law students will never practice law or serve as judges or procurators. most u.s. law students become lawyers. these differences suggest the need for adjustment of the u.s. methods in china. indeed, this is a key area of global adaptation and recognition of differences.42 it has been suggested that undergraduates are “too young to think for themselves and need first to accumulate a corpus of knowledge.”43 the opposing view is that learning theory places both upper division undergraduates and j.d. students “squarely within the ‘adult’ cohort for mature learning purposes.”44 the experience of our chinese partners reflects that properly supervised undergraduates can successfully represent clients in legal matters. because chinese law students are in a four year program, there is more opportunity to sequence experiential courses; for example, lawyering skills courses in client interviewing, negotiation, mediation, and arbitration or trial could be made prerequisites to clinical courses. such sequencing would reserve clinical courses for upper division students, who will be more mature and therefore more likely to be able to interact appropriately with clients. the more difficult question is whether the need for experiential legal education is affected by the existence of a sizable enrollment of students who will never serve in law-related jobs.45 one answer is that the problem solving skills acquired in experiential courses have broad application. another is that there is student demand for lawyering skills and clinical courses. many students do enter law-related jobs. they want professional skills education, and potential employers want them to have professional skills.46 a third is that taking a clinical course may well motivate a student to become a lawyer, because of the satisfaction that can come from representing a client and because the clinical work exposes “walking on two legs in chinese law schools” 49 41 prc state council white paper, china’s efforts and achievements in promoting the rule of law, feb. 28, 2008, viewed on april 18, 2010 at http://china.usc.edu/showarticle.aspx?articleid=96 2 . 42 see frank s. bloch and m.r.k. prasad, institutionalizing a social justice mission for clinical legal education: cross-national currents from india and the united states, 13 clinical l. rev. 165 (2006). 43 richard wilson, western europe: last holdout in the worldwide acceptance of clinical education, 10 german law journal 823 (2009), quoting alain lempereur, negotiation and mediation in france: the challenge of skill-based learning and interdisciplinary research in legal education, 3 harvard negotiation l.rev. 151, 164 (1998). 44 wilson, supra, at 834. 45 see note, adopting and adapting: clinical legal education and access to justice in china, 120 harv. l.rev. 2134, 2144, citing statistics showing less than 15% of law graduates from a high ranking law school finding law jobs. 46 major employers in beijing, both private and public, say that they want to hire lawyers who are already able to handle legal matters independently. see wang rong, on the role and significance of advocacy and clinical legal education in china, presentation at pacific mcgeorge school of law conference on experiential education in china, jan. 25, 2008, slide 7, http://www.mcgeorge.edu/ documents/centers/global/usaid/rongs%20powerp oint%20(word%20file%20translated).pdf. a survey of law school students in zhejiang province “reflects that legal skills are eagerly required by law school students….” pei bei, the expectation of legal skills in chinese legal education, presentation at pacific mcgeorge school of law conference on experiential education in china, jan. 25, 2008, http://www.mcgeorge.edu/documents/centers/globa l/usaid/pei%20bei%20english.pdf. a pacific mcgeorge professor who taught an advocacy course at china university of political science and law observed, “it would be impossible to overstate the enthusiasm with which all 16 chinese law students embraced our full-on experiential, simulation-based, american-style trial-skills course.” he concluded, from having observed similar results in china, italy, and the united states, that “teaching skills in a learning-by-doing … setting appears to be universally effective.” jay leach, content and design of advocacy education courses in chinese law schools: a proposed template, presentation at pacific mcgeorge school of law conference on experiential education in china, jan. 26, 2008, <http://www.mcgeorge.edu/documents/ centers/global/usaid/leach.%20china.report.pdf.> students to societal problems and reveals the need for legal representation. in addition, of course, the students have enrolled in a law school, and it seems appropriate for a law school to train lawyers. finally, these objections to lawyering skills education at the undergraduate level have no application to ll.m. and j.m. education. any program in china must confront the daunting scale of the country, so unlike the united states. with over 550 law schools,47 many of which are quite new to legal education, how can a relatively small initiative make a substantial impact? we decided that it would be impossible to quickly bring change to a large number of law schools. instead, we opted to try to have a large impact on a few schools, by limiting our initial program to three partner schools and training ten faculty members from each school. we believe this strategy has paid off. practitioners of experiential legal education are embedded in those three schools and the future of practical lawyering education seems secure there. all three have expanded their clinical offerings. an extension of our grant enabled us to increase to five additional schools participating in the program, with each school sending six faculty members. chinese professors from the first phase of the program are now trainers in this phase ii. as more chinese faculty become proficient in training other faculty in experiential education techniques, we hope the methods will spread further. there are also curricular and teaching method differences. law schools tend to adopt the required courses listed by the ministry of education, so they are pretty much in curricular lock step with one another. no experiential courses are required,48 but the ministry of education has approved legal clinics as elective courses and is considering whether to encourage practical education in law schools more actively.49 students are expected to acquire lawyering skills during their fourth year of law school, through three or four month externships with lawyers, courts, or procurators. these assignments have often been of minimal value, however.50 the lecture method dominates 50 international journal of clinical legal education summer 2011 47 see liu xiaobing, clinical legal education and legal aid, china legal education research 2008 #4, p. 73 ff. (translated by lei yu). over 600 institutions grant law degrees; some are university departments rather than law schools. see cai yanmin and j.l. pottenger, jr., the “chinese characteristics” of clinical legal education, in frank s. bloch [ed.], the global clinical movement: educating lawyers for social justice 87, 89 (oxford university press 2010); prc state council white paper, china’s efforts and achievements in promoting the rule of law, feb. 28, 2008, viewed on april 18, 2010 at http://china.usc.edu/showarticle.aspx?articleid=96 2 . 48 required courses are constitutional law, jurisprudence, criminal law, civil law, economic law, criminal procedural law, civil procedural law, administrative law and administrative procedural law, commercial law, intellectual property law, public international law, private international law, international business law, history of chinese legal system, environmental and resource preservation law, and labor and social security law. li huimin, hu chenggong and song guolei, problems and suggestions: on the development of the core curriculum for chinese law schools, china legal education research, 2008, #4, 138 [translated by lei yu]. “none of the fourteen courses contains practical curricula or the teaching of lawyer-practice skills.” gerard j. clark, an introduction to the legal profession in china in the year 2008, 41 suffolk u. l. rev. 833, 841 (2008). 49 cai yanmin and j.l. pottenger, jr., supra at 99. 50 zhu suli, supra, 78-79. pamela n. phan, clinical legal education in china: in pursuit of a culture of law and a mission of social justice, 8 yale h.r. & dev. l.j. 117, 127 (2005)(“the twoor three-month shixi period often becomes a mere break for the students from their ordinarily frenzied class schedules”). the objectives of these brief externships are similar to the objectives of experiential classes, see li shuzhong, supra, 66, but without an academic element requiring reflection on what has been learned, the externships are unlikely to achieve those objectives. chinese law classes, while the socratic method dominates in the united states.51 chinese law students have come to believe that the professor’s job is to answer questions, not to ask questions. thus, they initially resist the more demanding methods that would require advance preparation and critical thinking.52 clinical legal education’s real-world, client-centered focus on facts and practice stands in stark contrast to the rest of the curriculum, with its virtually exclusive emphasis on rules, law, and theory.53 clinical education is in its infancy in china, having begun at a few schools in the 1990’s.54 it is now well entrenched in most u.s. law schools. lawyering skills courses are virtually non-existent in china, but are found in most u.s. law schools; in china, mock trial programs are common but are not courses for credit. on the other hand the division that has developed in the united states between clinical education and lawyering skills education does not currently exist in china.55 chinese professors generally receive less recognition and pay for teaching experiential courses. the status of experiential education in china, in short, resembles its status in the united states until the 1970’s.56 u.s. law schools went through a slow and uneven transition to a curriculum that includes lawyering skills and clinical legal education, creating teaching standards and techniques through trial and error and through dialogue among experiential education scholars. as with so much of chinese society, more rapid change is possible in chinese law schools, for several reasons. the ministry of education has encouraged higher education institutions to incorporate learning by doing.57 chinese legal scholars are familiar with the u.s. experience and they show high regard for u.s. legal education. since the u.s. now has a mature, though still evolving, experiential legal “walking on two legs in chinese law schools” 51 51 “the education model is ‘knowledge-centered,’ rather than ‘skill-oriented.” setsuo miyazawa, kaywah chan, and ilhyung lee, the reform of legal education in east asia, 4 annual rev. of law and social science, 333, 335 (2008). however, socratic dialogue has become more common in china in recent years. matthew s. erie, supra, at 77-79. 52 this is based on my personal observation, while teaching a course in a chinese law school. see also, pamela n. phan, clinical legal education in china: in pursuit of a culture of law and a mission of social justice, 8 yale h.r. & dev. l.j. 117, 142 (2005)(describing a chinese student who “insisted that he could not learn without the instructor answering his questions directly and resolutely”). however, many students adapt well to interactive learning techniques. see patricia ross mccubbin, malinda l. seymore, andrea curcio, and llewellyn joseph gibbons, essay: china’s future lawyers: some differences in education and outlook, vii asper review 293, 299 (2007). 53 cai yanmin and j.l. pottenger, jr., supra, at 90. 54 in the late 1980’s some chinese law schools created law firms that provided legal services, and law school student unions began offering legal advice. however, these were extracurricular activities. michael s. dowdle, supra, at 175-176. 55 see pamela phan, clinical legal education in china: in pursuit of a culture of law and a mission of socieal justice, 8 yale hum. rts. & dev. l.j. 117, 143 (2005). 56 “[i]t is an undeniable fact that such forms of experiential teaching as the so-called legal counseling and service, social survey, clinical legal education, short-term internship, graduation internship are carried out in a nominal manner, without any efficient organization or administration….” zhang shengxian, a study on experiential teaching system for law undergraduates, china legal education research, 2008, #4, 47 [translated by lei yu]. 57 “training on basic knowledge, theories and skills will be further emphasized. in the field of he, the service profile for disciplines will be expanded and the teaching and training for application and internship will also be strengthened, so that teaching, research and social application can be integrated and the students' capacity in analyzing and solving problems will be improved.” the 9th 5year plan for china's educational development and the development outline by 2010, http://www.moe.edu.cn/edoas/en/level3.jsp?tablena me=1242700904263396&infoid=124408493138536 9&title=the 9th 5-year plan for china's educational development and the development outline by 2010, viewed on feb. 17, 2010. education, chinese are very interested in adapting the u.s. methods to chinese circumstances.58 this has become obvious to us as we view the enthusiasm with which chinese law schools have sought to become part of our program. it has been suggested that some legal educators in the two systems may pursue different goals for clinical legal education: championing equal access and redressing inequality [united states] versus improving legal skills [china].59 this both oversimplifies the two educational systems and creates a false dichotomy. clinics in both countries promote the rights of the powerless and less privileged among us. clinical students in both countries acquire both lawyering skills and an understanding of the legal needs of the poor. of course, it might be possible to pursue one objective without the other. for example, a professor might agree for the clinic to take on a high impact case even though it has little pedagogical value. however, in both countries a properly run clinic will find cases that advance both objectives. as michael dowdle points out, law school clinics “often provide a legal aid function by providing legal services to persons who would not otherwise have access to them,” although “one of their principal foci is on pedagogy, and not simply on maximizing the reach and impact of their public service.”60 language differences have presented some challenges as well. only one of our u.s. faculty speaks chinese and many chinese trainees have little or no english language skill. therefore, most of our activities in china have required interpreters.61 it is important to use professional interpreters rather than rely on english. the main choice we had to make was between consecutive and simultaneous translation. we opted for consecutive, believing it would probably be more accurate and that the much higher expense of simultaneous translation was not warranted. simultaneous translation would become especially difficult in the small group sessions which became the heart of our program. we did use the “whisper” system in small groups where the chinese participants were engaged in learning exercises among themselves.62 we discovered an unexpected advantage to 52 international journal of clinical legal education summer 2011 58 see, e.g., kong qjingjiang, practice in legal education: international experience and chinese response, 22 pacific mcgeorge global bus. & devel. l.j. 35 (2009); zhou shiwen, the reform strategy of legal education in china, 22 pacific mcgeorge global bus. & devel. l.j. 69 (2009). others recognize the need for professional skills training without specifically referring to use of u.s. legal education techniques. e.g., li shuzhong, on practical teaching modes: experience from the china university of political science and law, , 22 pacific mcgeorge global bus. & devel. l.j. 63 (2009); zhu suli, an institutional inquiry into legal skills education in china, , 22 pacific mcgeorge global bus. & devel. l.j. 75 (2009). 59 “[t]he general direction of the post-transplant development of china’s clinical legal aid and education framework has been away from the dominant paradigms that heretofore informed our perceptions of clinical legal education in its foreign system of origin….” michael w. dowdle, completing teubner: foreign irritants in china’s clinical legal education system and the ‘convergence’ of imaginations, in penelope (pip) nicholson & sarah biddulph, (eds.), examining practice, interrogating theory: comparative legal studies in asia, 169 (martinus nijhoff 2008). see also, dowdle, supra, at 181; sarah biddulph, legal education in the people’s republic of china: the ongoing story of politics and law, in stacey steele and kathryn taylor [eds.], legal education in asia: globalization, change and contexts, 260, 271 (routledge 2010). 60 dowdle, supra, at 174. 61 we conduct almost all classes in the u.s. in english [plus a couple in spanish] and require chinese professors who enroll in our llm program to demonstrate english language ability, by toefl or ielts score or by interview. typically they find the first half of the first semester extremely challenging linguistically, but they gain fluency over time, and all have been able to complete the program satisfactorily, with some achieving high success. 62 a variant on simultaneous translation, in the whisper system the interpreter whispers the translation to one or two non-speakers of the language. consecutive translation: it gave time for difficult ideas to sink in, and for bilingual chinese participants the repetition also enhanced understanding [though a few found it boring and a waste of time]. language poses challenges in another way: some u.s. legal ideas are hard to translate. for example, we initially divided the program into a clinical component and an advocacy component. the word “advocacy,” however, proved impossible to translate. we had lengthy discussions with chinese participants and interpreters on how to translate the word and could never find a suitable translation. similarly, idioms, jokes, and metaphors often do not translate well. this latter point is also related to cultural differences. many jokes, idioms, and metaphors depend heavily on shared cultural understandings. a more serious cultural difference is that chinese culture is much more hierarchical than u.s. culture. respect (zunjing) for elders and persons with higher status, such as professors, leads to a reluctance to fully engage in discussion, because the younger person and the person in a lower status should not contradict the older and higher status person.63 for example, we planned a role play, where a u.s. professor was to give a closing argument and a more junior chinese professor was to demonstrate critique method. the u.s. professor told the chinese professor what mistakes he would make in his closing argument, but even with that advance knowledge, the chinese professor gave a critique that praised the u.s. professor’s performance. we had been warned that our program would clash with other aspects of chinese culture: the concept of face [mianzi], the emphasis on community rather than the individual, and the low value placed on independent thinking. in practice we did not find that these values clashed with our program. properly presented critiques and self-reflection did not seem to raise issues of face, but instead seemed consistent with chinese traditions from the time of confucius.64 perhaps this is because we emphasized that critiques should not be sarcastic or belittling. our classes rely to some extent on communal learning, and once freed from the constraints on independent thinking the chinese participants enthusiastically embraced it. chinese and u.s. cultures tend to feature differing “perceptions of rules and relationships.”65 for example, “western legal systems focus most acutely on principles of law, while the traditional chinese view is that such abstract principles are too mechanical and devoid of substance. rather, the emphasis has been on conflict reduction and stability.”66 professors wang and young also describe dr. milton bennett’s developmental model of intercultural sensitivity, reflecting that when exposed to these cultural differences, individuals go through a progression of reactions.67 “walking on two legs in chinese law schools” 53 63 see matthew s. erie, supra, at 79-80. 64 according to one of his aphorisms, “these are my worries: not cultivating virtue, not teaching what have been learned, not moving toward what is known of righteousness, and not correcting what is wrong.” another holds: “if you speak to a man very seriously, how can he not listen to you? correcting is the most important thing. if you speak to a man in a friendly manner, how can he not be happy? being able to examine is the most important thing. if a person seems happy, but he does not want to examine; or if a person is listening, but does not correct his mistake, for those people, i can do nothing.” tom te-wu ma and pan zhiyong, confucius said, 167 and 189 (shanghai worldwide publishing co. 2004). 65 francis sl wang and laura wy young, cultural differences and legal perspectives: measuring intercultural interactions and outcomes at the summer law institute – kenneth wang school of law, suzhou, china, in international association of law schools, effective teaching techniques about other cultures and legal systems, 53 (may 30, 2008). 66 id., at 54. 67 id., at 56, citing m.j. bennett, a development approach to training for intercultural sensitivity, 10 intl. j. of intercultural relations 179 (1986). we noted some of these reactions in our training: initial denial, defense, minimization of differences, acceptance, adaptation, and integration. for example, some trainees initially resisted such concepts as client centered lawyering, persuasive argument, and non-directive supervision, but most ultimately found these to be useful concepts that could be transformed for use in chinese legal education. b. another set of challenges flows from the type of experiential education we are teaching. our workshops have been of varying length – two days, one week, three weeks. our objective is to achieve “deep transfer,”68 but that is not possible in a two day training. there we limited our effort, to simply provide introductions to various topics and lay a foundation for trainees. even in the longer workshops, deep transfer can occur only if we limit the topics covered and give the participants ample practice of each skill. u.s. law schools generally organize their curriculum based on an artificial and historically based division between clinical courses and persuasive lawyering courses. our first two workshops followed this division, but it became increasingly clear that the overlap between the two exceeded the differences between them. both teach negotiation, client interviewing, fact development, theory of the case, and courtroom skills. both rely on reflection as a key teaching device. both use simulations – clinical courses use them to prepare students for real clients and cases; lawyering skills rely on them exclusively. we decided to merge our consideration of clinical and persuasive lawyering in our workshops in 2009. one advantage of this merger is the opportunity to compare methods of learning by doing. nita relies substantially on directive techniques, while clinicians typically rely more on self reflection. a related difficulty is finding the correct balance between directive and reflective techniques of educating the educators. time constraints create pressure to use directive techniques, but discussion and reflection are particularly important when the issue is transferability of techniques to another country’s legal education system. it is generally accepted that we can achieve deeper learning with reflective techniques. our chinese participants proved adept at adapting u.s. techniques to chinese clinical education. for example, we presented the blaustone six step method of feedback and reflection. southwest university of science and technology law school reported to us that they had adopted a six step model. the report described a divorce case in which the client had a poor reaction to their first meeting with the students: “our students were very frustrated by it and showed signs of giving up this case. following these six steps, clinic teacher had a communication with students in time, they listened to students’ report on the meeting with the party, guided the student to analyze this meeting, first teacher let students find out their good performance in the meeting, and then let students reconsider the problems which caused the party to distrust them, finally students proposed a remedy for the further communication with the party, and established the sense of trust of the party. through this feedback 54 international journal of clinical legal education summer 2011 68 deep transfer is an important concept in learning theory, referring to long term lessons that stick with the learner and that the learner can apply to new situations. david a. binder and paul bergman, taking lawyering skills training seriously, 10 clinical law review 301 ( 2003); ken bain, what the best college teachers do, 27 (2004)[referring to deep learning]. mode, students successfully found the reasons for party’s distrust, and they finally got the trust through further communication with the party. now with the cooperation of students and the party, this case goes well and this divorce trial will begin in april 23rd 2010.”69 iv. what lessons have we learned from this program? foremost, the core methodology of educating the educators works. our trainees have enthusiastically embraced the program, in evaluations,70 by incorporating into their own teaching the methods they learned in the program,71 and in books and articles they have written.72 the independent evaluator who has reviewed our program, professor frank bloch of vanderbilt law school, has concurred in the value of this methodology.73 second, clinical and persuasive lawyering classes are two branches of the same tree: learning to be “walking on two legs in chinese law schools” 55 69 translated by wang yongmei, e-mail to brian landsberg, april 2, 2010. 70 the number rankings from the trainees are always quite high. for example, in response to the question whether the 2008 summer workshop had achieved its objectives, 20 replied yes and 3 replied no [ten others did not respond]. as to how clear the objectives of the workshop were, 21 said excellent and 3 said adequate. more informative, perhaps, are narratives. a former associate dean of zhejiang gongshang university law school wrote: “for chinese legal experiential education, the core concept of american experiential educationlearning by doing and the teaching methodologies and techniques, such as simulation, demonstration, roleplay and critique, are really worth being learned from. wonderful experience! ” e-mail from luo wenyan to brian landsberg, feb. 8, 2010. a professor at the china university of political science and law wrote: “right now, china is paying great attention on the reform of legal education. in this context, i believe teaching of legal skills including advocacy skills will be more and more important. this llm program just provides training for the law professors who had interest in teaching of advocacy skills, thus i sincerely recommend you to this llm program.” e-mail from dong jingbo to brian landsberg, feb. 7, 2010. 71 see text, 1-2, supra, re dong jingbo’s courses. see text, infra, re liu jianming’s clinic. all who responded to the survey regarding the 2008 summer workshop said it would have an impact on their teaching. typical responses: “change critique procedure,” “add adr as an individual class,” “use simulation,” “teach students more legal and advocacy techniques,” “how to supervise students.” 72 e.g., luo wenyan, and liu jianming, falu jineng zonghe shixun [comprehensive training on legal skills], zhejiang gongshang university press, 2009; luo wenyan & brian landsberg, supra, n. 28; liu xiaobing, clilnic legal education and legal aid, china legal research 2008, no. 4, 73; dong jingbo, research practice teaching of international law, china legal research 2008, no. 4, 127. 73 for example professor bloch’s report on the december 2009 training noted: “from the beginning, the project has sought to address the relevance of us-based materials and us-oriented methods to the chinese context. as has been the case throughout, many of the chinese participants expressed great interest in learning about us-style clinical and advocacy skills teaching despite differences between us and chinese legal systems (and between us and chinese legal education). many examples of chinese clinical and skills instruction were cited, both in the training and by participants during large and small group discussions. moreover, discussion along these lines seemed more nuanced during this training in that greater attention was given to how the essence of what is taught in the us—as opposed to the specifics—might best help chinese law teachers develop a clinical and skills curriculum for training a new generation of modern chinese lawyers. two examples of this were the session on legal argument that brought out ways in which largely similar simulations could be used to prepare students in both countries despite specifically identified difference between us and chinese law practice, and the session on “persuasive lawyering” that facilitated cross-system discussion of the lawyering process, how to teach about what lawyers do, and how clinical and skills training in law schools might influence the transition to more adversarial legal process in china.” frank s. bloch, report to the university of the pacific mcgeorge school of law on usaid rule of law in china project (octoberdecember 2009), 11-12. an ethical and skilled legal professional. properly sequenced they reinforce not only the lessons that the other class taught but also the lessons of traditional legal knowledge courses. persuasive lawyering classes prepare students for clinical classes, as well as concretizing lessons learned in traditional legal knowledge classes. clinical classes cement the lessons learned in the persuasive lawyering classes, further concretize traditional lessons, and deepen sense of professional values. moreover, as pamela phan has noted, perhaps “the chinese system of legal education holds greater potential for integrating doctrinal and clinical methods than its american counterpart,” both because of the broad definition chinese educators give to “clinical education” and “because chinese clinicians are also educators in doctrinal subjects.”74 the u.s. law schools may have taken a wrong turn when most of our schools separated the two. thus, we have learned about ourselves in the course of teaching the chinese professors. we have learned to consider the relationship of the clinical, lawyering skills, and doctrinal courses in a systematic way. we have learned to consider the deeper lessons that each type of course offers. we have learned to ask ourselves questions about the most effective teaching methods. for example, when is it appropriate to provide directive critiques of student performance and when is it more effective to simply raise questions upon which the students should reflect? other lessons are reflected in the discussion above. we need to be constantly aware of the tension between directive and reflective techniques of teaching/learning. we need to take care in selecting trainees. for llm programs, english language competency is essential. critical mass at a specific law school seems essential. evidence of commitment to experiential education is helpful. we also need to be careful in our choice of terminology. for example, we are now referring to persuasive lawyering rather than advocacy. the differences between the two legal systems require adjustment from us, but the basic skills required are the same in both systems, and we should not overstate the extent of the differences. properly delivered critiques do not cause undue loss of face. we should not be over-concerned over face. to the extent possible, we should put chinese law professors in charge. let them go first rather than trying to have them critique a u.s. professor. at our workshop in 2008 we merged the clinical and advocacy groups for the final sessions and asked the chinese participants to comment on what they had learned and what they planned to do with it. two responses, as reflected from my notes, nicely capture the gist of their comments:75 advocacy skill is like the field test of driving and clinical course is like the live road test. we plan future reform to combine such skills as arbitration law with clinical courses. we need multiple strategies, not a standardized one. in the first stage in china, let multiple models exist. we should allow various models of experiential learning. we want to be exposed to american methods; then we can figure out how to adapt them to the chinese context. 56 international journal of clinical legal education summer 2011 74 pamela phan, clinical legal education in china: in pursuit of a culture of law and a mission of social justice, 8 yale hum. rts. & dev. l.j. 117, 143-44 (2005). 75 brian landsberg, report on hangzhou workshop, july 21-august 7, 2008. conclusion the educate the educators program has had the hoped-for impact on the chinese law schools participating in the program and has the potential of more far reaching impact. it has also had an unforeseen impact on the united states faculty who teach in the program. all of the participating chinese law schools have enlarged their clinical programs, so that each year faculty who have completed our training programs teach clinical and lawyering skills courses to hundreds of students. all of the participating chinese law schools have incorporated persuasive lawyering skills into their curricula, either in existing courses or in new courses; each year over a hundred students engage in persuasive lawyering learning. at least ten of our initial 30+ trainees are qualified to educate other educators, and most have either done so or will do so in summer 2010 in our upcoming workshop. we have helped strengthen a national vehicle for clinical legal education, akin to the united states clinical legal education association, the committee of chinese clinical legal educators [cccle], by providing it with materials and training, and by encouraging more law schools to join. participant schools have created experiential education institutes, thus lending credibility to the faculty members teaching experiential courses. chinese and u.s. publications give added visibility and credibility to experiential legal education in china. the u.s. faculty has felt energized and inspired by the program. more important, the program has caused u.s. trainers to reevaluate and in some instances revise their teaching methods. we have learned to reconsider the relationships among the types of experiential learning. it has caused us to consider the appropriate balance between directive and reflective learning. this past september i took a team from us aid to view a clinical education class at zhejiang gongshang university law school, taught by professor liu jianming. i had observed chinese clinical classes before, where students described problems and professors told them how to solve them. by contrast, professor liu skillfully drew from students the objectives of client interviewing. a student typed their points, which were projected on a screen. professor liu quizzed two students who had previously conducted simulated interviews about their plans for the real interview that was about to take place. they then interviewed a real client who had consented to be interviewed in front of the class. the interview was videotaped. after the client left, prof. liu elicited student critiques of the interview, in light of the objectives they had identified. then the student interviewers critiqued themselves. only then did prof. liu offer brief comments on the student interviews. this class would have been considered outstanding in a u.s. law school; in china, given its relatively short history and paucity of tradition in experiential learning in law-school settings, it was nothing less than amazing. both the interviewing students and the observing students were fully engaged in learning how to conduct an initial client interview. the combination of planning, doing, and reflection maximized the transfer of skills and values to the students. professor liu wrote to our partner, elliott milstein, on new years eve to thank him: “from 2006 to now, only about three years, i have grown from an ordinary teacher to a good clinic teacher, from a trainee to a trainer … i am fortunate to meet you and your faculty.” “walking on two legs in chinese law schools” 57 practice report using a real contract to teach law holistically sinead j eaton, school of law, university of limerick, ireland abstract a globally used industry-standard contract proved to be of great use in teaching a few aspects of law and putting a few others in context. the practical exercise of analysing the provisions of an actual contract facilitated active learning. the use of contract provisions to manage risk and the use of standardised contracts to reduce legal costs and achieve efficiencies also emerged. students learned about different aspects of law and the legislative process, as well as seeing how national legislation can come into being and how it can support, or fail to support, a particular business sector. introduction there is an increased emphasis in ireland on teaching law in a manner which explains its context to students and in a manner which involves an element of clinical legal education. all law students in my university spend approximately 6 months working with a law firm, or in a similar setting, as part of the degree programme. this happens during the students’ third year. final year law students at university of xxx also take “lawyering” modules where they work on projects in small groups and are guided by a member of faculty. the projects vary from studies of sentencing patterns in criminal cases to employment law clinics. some of the projects are capable of being described as clinical legal education insofar as they involve live-client situations. others are practical, involve looking at law in context and build on the 6 month clinical experience the students had. having spent some time working in-house in the capital markets section of a bank , and using the international swaps and derivatives association’s (isda) pro forma master agreements, i decided to base my project on those. there are significant levels of commercial and financial activity in the financial products used to manage currency and interest rate risk. the high levels of risk management and investment by our banks with other financial institutions makes the area ripe for learning. furthermore, all commercial lawyers have clients who avail of these risk management services provided by banks and other financial institutions. the group of students who selected this project above others were law students with an interest in securing professional traineeships in ireland’s top law firms and they had an interest in commercial law. being able to outline to them the future relevance of this knowledge and learning helped to further arouse their interest, which assisted the learning greatly.[footnoteref:1] [1: learning to teach in higher education, ramsden, 2nd ed. , routledge falmer, p.93] the aim of the exercise was to allow the students engage in deep learning. this was achieved on the one hand by building on their previous study of contract law and also by taking them back to their earlier study of the stimuli for legislation and the varied purposes of, and motivations for, legislation on a particular aspect of law. these are what ramsden describes as attributes of deep learning.[footnoteref:2]while the final year students had studied contract law and the legislative process in previous years, the project drew those two modules together, added company law familiarity and gave them a holistic view of these areas of law. in many senses the exercise operated as a capstone module which wove together different strands of legal knowledge and ‘placed’ their knowledge in a real-world setting. [2: ibid. p.47 ] contract law in context (i) understanding the client’s need for the financial transaction one of the reasons i chose the isda master agreement contract as a base for the project was that the business school in university of limerick has a replica trading floor and faculty with expertise in derivatives and similar financial products. the group of students who selected the isda master agreement project first attended a talk on the products typically traded under that master agreement, or contract. the students were introduced to over the counter (otc) derivatives like interest rate swaps and foreign exchange products. the students learned how banks entered into those transactions with each other and how companies benefit from these risk management financial products. our discussion after the seminar in the business school revolved around purposes a commercial and corporate client might have for an interest rate swap or for foreign exchange products depending on their business. however, as the range of financial products is so wide and because they were new to the students, the next time i supervise the project i will provide notes on the financial products. some of the students indicated in their feedback that this would be helpful. attending the talk on the financial transactions/derivatives in the xxxxx business school’s trading room meant the students had become operationally engaged.[footnoteref:3] the students were pleased to see the replica trading floor and gain an understanding of the financial products traded between financial institutions as tools of diversification and management of risk. in addition ,they learned how large trading companies manage their interest rate and currency exchange risks using these financial products. [3: engaging the curriculum in higher education, barnett and coate, the society for research into higher education and open university press, p.138 ] that was the first step in the journey and showed the students what the subject matter of the contract would be. (ii) understanding the merits of a master agreement the isda master agreement is one of many pro-forma and template documents produced by the association for its members. the contracts between counterparties are built using a series of different documents. in the first instance there is the master agreement which contains definitions, events of default and representations. the documents were developed and adopted by the participants in this sector of financial activity. various bank representatives and lawyers, both in-house and from firms, had combined their expertise to create the standard documents. that of course has the advantage of reducing legal costs for companies and financial institutions who use them. it also creates efficiencies due to the familiarity of all with the provisions of the standard form contracts. the second document which contributes to the contract is a schedule to the isda master agreement in which parties can vary terms of the contract, agree financial thresholds which will trigger an event of default, select a governing law and many other contractual terms can be varied. the students saw how these documents worked in tandem and learned that typically a final piece of the contractual jigsaw is a “confirmation” for each individual financial transaction, or product. the confirmation contains specific transaction dates, settlement / payment dates, applicable rates such as euribor and the signature of authorised personnel. introducing the students to the various clauses of the master agreement had many benefits, not least the fact that there are many boiler-plate clauses with which the students became familiar for the purposes of reviewing any contract. our discussions helped them to revise issues around events of default, waiver terms and representations and warranties, all of which they had studied in contract law modules. furthermore, the terms of the agreement are so widely used that familiarity with them could only benefit anyone starting a career in a commercial firm, or other commercial law environment. finally, the discussion of isda’s work brought us to considering the future of lawyers and law firms. the very fact of this achievement by isda in developing the master agreement and other documents opened their eyes to what might be required of lawyers more in the future. sir richard susskind has opined that lawyers of the future will be expected to assist in achieving more of these efficient mechanisms of standardised contracts intra industry. [footnoteref:4] [4: tomorrow’s lawyers, susskind r. , oxford university press p.26] (iii) understanding the risk management aspect ;” close-out netting” one of the key provisions within the isda master agreement is a mechanism for close-out netting. this is particularly important for banks trading with other banks, where the volumes of trade can be significant and the monetary amounts staggering. the contractual intent of close-out netting is that if a bank in another jurisdiction should fail, all transactions are valued and a contractual set-off is used to produce a net amount owed to, or from, the failed bank which is a party to the agreement. with wholesale financial transactions involving significant amounts, no bank wants to trade with a risk that, upon the liquidation of the counterparty bank, amounts owing may have to be paid out by the bank, while amounts owed to it might have to be proven by it as an unsecured creditor of that counterparty bank. this aspect of the master agreement was particularly suitable for those final year students as they were also studying company law provisions on insolvency, restructuring (examinership/administration) and liquidation. the students were able to link this knowledge to their other course material and appreciated the context. (iv) a real and widely used contract while students study contract law for at least a year, they do not always see and hold a contract. bespoke contracts are not widely available and books of precedent did not form part of the university library’s materials and subscriptions, so using the isda master agreement appealed to me as it offered the students something tangible and actual. i wanted them to see, and review, a document widely used internationally by large companies and financial institutions. the link to legal opinions by law firms isda also provides legal opinions to its members on the enforceability of close-out netting in various jurisdictions. typically a leading firm in any given jurisdiction will be instructed by the association to give a legal opinion on the likelihood that, in that jurisdiction, the courts and national laws would respect and uphold the close-out netting (contractual set-off) provisions in the master agreement. members pay for those legal opinions and rely heavily on them when assessing their risk to a counterparty and to a particular jurisdiction. banks will assess their risk to other financial institutions but the students were interested to learn that banks also assess their risk to countries, especially those which are not long-established, stable democracies. the ability of any country to secure a “clean” legal opinion is very important to the financial institutions in that jurisdiction. counterparties and trading partners are easier to find if they don’t bear the risk of your banks insolvency above and beyond the net amount owing between you at any given time. in many jurisdictions, legislation is passed to specifically uphold these close-out netting provisions in the contract. laws and lobbying introduced making that link from contract to legal opinion to legislation for the students enabled me to explain the genesis of many laws and explain why certain sectors of business have associations and lobby groups. the irish banking federation played a role, for example, in highlighting to the irish government of the day the importance of adopting legislation to facilitate the certain application of “close-out netting”. legislative provisions were deemed necessary to confirm and ensure that the provisions of such a master agreement would be upheld and applied by a court in the event of the insolvency or liquidation of any irish credit institution or irish registered company. the students learned how the need to ensure the contractual terms of the isda master agreement were upheld on insolvency led to the, lobbying for, and passing of legislation. the students also understood how the legislators therefore operated in an economic context and enacted the legislation to ensure the continuation of commerce with irish financial institutions and large companies. one of the interesting aspects this highlighted for the students was that the legislative process, which they had studied in first year, did not operate in a vacuum , rather that draft legislation responded often to the needs of individual or corporate citizens. legislation which is fit for purpose so the students scrutinised the irish legislation the netting of financial contracts act, 1995 and wrote an explanatory memorandum on the need for, and effects of, the sections of that act. this brought the issues into sharp focus for the students and they displayed a comprehensive understanding of the netting of financial contracts act, 1995 in the papers submitted by them to me. pedagogic reflections when seeking to identify a clinical legal education project i considered using my professional experience in this area for a couple of reasons. one reason was that aspiring commercial lawyers learning about financial products and how corporate clients use them is important. in addition, familiarity with the internationally used isda master agreement could only be beneficial to the students, the related legal opinion work of law firms and the links to national legislation really put law in context and connected each small financial transaction to the national issue of legislation. there is a chain of events and a series of consequences which becomes visible to the students. while we tend to teach areas of law as separate and distinct subjects, or modules, in reality they merge and interconnect. the project based on the isda master agreement illustrated the connections between the business transaction and the contract. it also linked the contract terms to the issue of the legal opinion. the status of the close-out netting terms of the contract upon insolvency linked contract law and company law. the financial services sector needed to ensure the enforceability of the terms of the contract, which in turn linked the legislative process to the contract. all of these links were compatible with a deep learning experience.[footnoteref:5] [5: reflection and assessment in clinical legal education:do you see what i see ? ledvinka g., journal of clinical legal education august 2006, p. 35 ] using a real contract with the students is not unlike the use made by those teaching civil procedure of real accounts of cases.[footnoteref:6] the compilation of the materials into a text with accompanying annotations may also be worth considering. that seems to have been done to great effect by nan d. hunter using the critical pleadings of the paula jones’ sexual harassment case against president clinton.[footnoteref:7] [6: using a simulated case file to teach civil procedure : the ninety-percent solution oppenheimer d. , journal of legal education , vol 65, number 4 (summer 2016)] [7: the power of procedure : the litigation of jones v clinton , aspen law & business (2002) ] in addition to giving the students more material on the financial products, i will enhance this project in the future either by including a guest lecture by a lawyer negotiating the master agreements on behalf of a large financial institution or by having the students simulate a negotiation of the terms themselves.[footnoteref:8] [8: ‘time to rework the brand ‘ clinical legal education’, noone m.a., ijcle (19) p. 345 ] conclusion it was satisfying to organise a project in a way which gave the students an opportunity to amalgamate at least three areas of law which they had studied and to see those in a practical context. at another level the project gave the students a holistic approach to the issue of derivatives contracts in particular. while they could revise many areas of law already studied, they also got a 360⁰ view of the key legal issues in the capital markets – at least, as experienced by lawyers! 122 310229_april ed 2 inner 5 foreword foreword as this journal goes to press, clinicians in england and wales face the most rapidly changing and challenging set of circumstances in the short history of clinical legal education in this country. within a very short period of time (probably less than two years) two radical changes will have occurred. first, our undergraduate students will be expected to meet virtually the full economic cost of their education with the advent of the new tuition fees regime. second, the current government will have sought to radically reform legal aid with the intention of reducing the legal aid budget by £315 million by 2014–151 and at the same time, significant reductions in government spending will reduce the provision by other legal advice centres, such as the citizens advice bureau2. this being the international journal of clinical legal education, some may query the focus of this editorial on such a parochial issue. in fact, in deciding whether these changes should encourage clinicians in this jurisdiction to change their practice, and the direction of any such change, it would be wise for us to look at the range of experience internationally. many of those jurisdictions have long had less, often far less, generous legal aid schemes and/or a requirement that students fund most or all of the fees for their tuition. in contrast to this country, in several jurisdictions, the legal aid that is available has been channelled to a certain extent through university legal clinics. experience in other jurisdictions may well indicate the trajectory of travel for clinic in this country. in england and wales, there has been a growing movement in recent years to provide pro bono advice as part of legal training3. many postgraduate professional training courses offer pro bono advice usually as a part of additional activities that students can undertake beyond their studies. those programmes tend to emphasise that they exist both to improve the student educational experience and to, for example, “benefit members of the community who might otherwise not have access to legal services.”4 however, while some law schools (one of the longest running being the university of canterbury at kent) place significant emphasis on providing legal advice for those who cannot afford it alongside providing a learning experience, others, such as here at northumbria university have 1 proposals for the reform of legal aid in england and wales consultation paper cp12/10 , (the stationary office, norwich, november 2010) cm 7967 accessed at http://www.justice.gov.uk/consultations/docs/legalaid-reform-consultation.pdf 24.3.11 2 the cab chief executive gillian guy was reported as warning of a 45% drop in cab funding: labour criticizes cab funding cuts, http://news.bbc.co.uk/democracylive/hi/house_of_l ords/newsid_9389000/9389960.stm accessed at 25.3.11. in 2009-10 cabs provided help to 2.1 million people in solving 7.1 million problems, http://www.citizensadvice.org.uk/index/aboutus.htm accessed at 25.3.11. 3 the number of law schools with pro bono programmes in england and wales rose from 33% to 65% of all schools from 2006-2010: grimes, r and curtis m, law works student pro bono report 2011, (law works, 2011). the report reviews the provision of all forms of pro bono assistance by students, not just clinics. in fact, according to the report, only 50% of those law schools offering pro bono to students run in house representation and/or advice clinics. 4 bpp pro bono statement http://www.bpplawschool.com/probono/bpp accessed at 3.6.11 placed more emphasis on the student learning experience. there is no requirement for clients at northumbria’s student law to show that they cannot afford other types of representation. the emphasis has always been on whether the cases are of educational benefit to students. of course, many cases are brought to the office by those who cannot find legal assistance elsewhere. sometimes this is because legal aid, though previously well resourced, does not adequately fund that area of law (particularly for employment and welfare benefits representation or certain criminal appeals). often it is because although the individual has means that take them out of the legal aid regime, it would not be economical for them to seek the help of a lawyer with their particular problem. this is particularly the case in civil small claims cases, criminal injuries compensation matters and some family work. it appears that in other countries there is far more emphasis on meeting unmet need and pursuing social justice imperatives. in the u.s. in particular, social justice was and remains at the heart of the clinical movement, even if tensions exist between that and the move toward a more professional skills oriented focus.5 even those who place education as the first priority often recognise the “social justice mission assigned to the legal profession”6 and advise that in-house clinics should respond to the legal needs of the community.7 in australia, the trend is to establish clinics not in the law school but as part of legal aid provision or other government and community provision8 and australian clinicians often still tend to see community service and law reform as an important element of their work9. this is contributed to by the funding by the federal government of clinical programmes at the universities of monash, griffith, murdoch and new south wales. in south africa, given the significant unmet need, all clinics either represent the disadvantaged or take on law reform or community based projects aimed at the disadvantaged.10 in eastern europe, much of the rise of clinics in countries such as poland has been fuelled by the desire to meet unmet need. the legal clinics foundation requires that all clinics who seek support from it include provisions that ensure that their clients are unable to afford legal advice elsewhere.11 one of the key reasons why there is less emphasis on pursuing a social justice agenda in england and wales is that legal aid as part of the welfare state has long provided for many of the most crucial aspects of work with disadvantaged groups. while financial eligibility and scope have reduced over time it is still the case that many of the most disadvantaged in our society have been able to secure legal assistance and representation. there was a strong feeling amongst many clinicians that clinic should not attempt to provide for unmet need where that need should be met 6 international journal of clinical legal education summer 2011 5 see for example bloch f, prasad m, institutionalising a social justice mission for clinical legal education: cross-national currents from india and the united states, 13 clinical l. rev 2006-2007 166 6 stuckey r, et al best practices in legal education, (clinical legal education association, 2007) 145 7 ibid. 8 giddings, j contemplating the future of clinical legal education clinical legal education symposium 17 griffith l. rev. (2008), p 3 9 ibid. p 9 10 maisel, p expanding and sustaining clinical legal education in developing countries: what we can learn from south africa 30 fordham int'l l.j. (2006-2007) 378 11 krasnicka, i, legal education and clinical legal education in poland, 13 int'l j. clinical legal educ. (2008) 47, 53-54 by the state12. those assumptions about the level of support the state should offer are however being swept away. the coalition government’s reforms13 threaten access to justice by the removal of legal aid in the following areas, amongst others: • most claims involving clinical negligence • most cases involving debt other than those in which the individual’s home is at immediate risk most disputes involving the family other than those which involve domestic violence – though a small level of legal aid will be available to attempt to mediate such disputes • all education cases, including advice on special educational needs • most housing cases other than those involving repossession proceedings, serious disrepair affecting health and homelessness • most non-detention immigration cases • most legal aid in welfare benefits disputes in its response to the government’s proposals the law society of england and wales states14: if it proceeds with the proposed cuts, the government runs the risk of reduced social cohesion, increased criminality, reduced business and economic efficiency, and increased resource costs and transfer payments for other government departments. these radical reforms pose a challenge to clinicians and universities in this jurisdiction. should those clinics that currently do not have an overtly social justice agenda, incorporate such a mission, if not as a primary goal then at least as an important secondary one15? additionally, do all clinics need to reassess the areas of law in which they work to maximise the impact that students can have when working on cases? currently clinics tend to concentrate on areas not met by legal aid. the question is whether clinics need to look to prioritise the areas outlined above. areas which the government has decided are no longer of sufficient priority in our financial climate but which arguably are of more importance to those concerned than the areas currently undertaken by clinics. foreword 7 12 that concern has recently been mirrored in the profession more generally: is the legal profession being unwittingly manoeuvred into establishing a de facto safety net? law society gazette comment ( 14th april 2011). 13 footnote 1 above 14 green paper proposals for the reform of legal aid in england and wales law society response, (the law society, february 2011) http://www.lawsociety.org.uk/influencinglaw/policyi nresponse/view=article.law?documentid=434 634 accessed at 25.3.11. 15 many would argue that a social justice dimension is necessary not only to assist those in need now but equally or more importantly to educate future lawyers about the realities of the law in action and to encourage them to include pro bono service and law reform in their later professional lives. see for example barry, m et al, clinical legal education for this millennium, the third wave, 7 clinical l. rev. 1 2000-2001 1. a variety of counter arguments can be ranged against this call to pursue a more coordinated and overt social justice agenda. the first is that clinics cannot hope to replace the services that are lost. ministry of justice figures indicate that 502,000 fewer people will be assisted when legal aid reforms take place16. northumbria’s student law office is a large law clinic. in 2009-10 it dealt with 358 cases as open client files. clearly the yawning chasm which will open up in the provision of legal services cannot be filled by clinics. there are also powerful arguments concerning the tension between education and providing access to justice. as noted above, undergraduate law students in england and wales are about to see their fees rise from just over £3000 per annum to as much as £9000. some students will now be meeting virtually the full economic cost of their education (albeit via a student loans scheme). in that climate, it may be even more difficult to persuade students that part of their mission as clinic students is to provide access to justice to those less fortunate than themselves. it might also be argued that while at northumbria there is no overt social justice mission, the concentration on professional education, with clinic as a compulsory, heavily weighted module has seen more practical help given to members of the public than at universities where clinic is a voluntary noncredit bearing module albeit with a more overt social justice mission17. some would also argue that if the overriding goal is not education, then the student experience will suffer. if clinics were to pursue the goal of helping those most in need they might attempt to develop a model in which students deal with a large number of similar cases with minimal supervision in an attempt to help as many as possible. students would lose the benefit of careful supervision and guidance, of time to reflect on their learning in a rush to provide volume legal advice. for clinicians in this jurisdiction it is surely right that there is at least a debate about the place of social justice in their mission. few would insist that clinics should do their utmost to provide legal services to the greatest number possible and to the disadvantage of their students’ education. however, if one analysed the most pressing unmet need in one’s area and determined that destitute asylum seekers and those refused basic welfare benefits were those most in need of assistance should the clinic continue to work on small claims civil cases? there might be good reasons to do so. perhaps those cases prepare the students best for practice. perhaps the clinic supervisors cannot develop expertise in these other areas. if, however, the only reason for not repositioning the clinic’s work is truly that the clinic has failed to assess what might be necessary or consider the educational costs and benefits then that position is open to criticism. 8 international journal of clinical legal education summer 2011 16 cumulative legal aid reform proposals, ministry of justice, http://www.justice.gov.uk/consultations/legal-aidreform-151110.htm accessed at 25.3.11. the legal action group queries these figures and calculates that over 650,000 people will no longer have their cases funded http://legalactiongroupnews.blogspot.com/ accessed at 25.3.11. 17 it is interesting to note that 43% of all law schools offering pro bono activity in 2010 did not allocate any staff teaching time to it. only 5% of all law schools have compulsory pro bono activity and only 10% assess student performance. law works student pro bono report 2011, footnote 3 above. several years ago my firm meeting at northumbria was attended by lawyers from estonia involved in their country’s nascent legal aid provision. they listened to a debate between me and my students over an interesting package travel claim on behalf of two clients who had taken a holiday in france. after the firm meeting our visitors expressed their amazement to me that we would consider taking such a case, that in estonia there were far more pressing matters for the clinic to be dealing with. i replied that we were currently dealing with other cases of more pressing importance to disadvantaged clients but that legal aid, to a large extent, ensured access to justice in most cases. in the future that will no longer be the case and clinicians need to decide how to react to that change. in this edition several of the articles in this edition directly address the social justice and/or educational agenda. professors lasky and nazeri, describe the movement in malaysia and southeast asia generally towards an expansion of clinic and community based legal education with a strong social justice and educational agenda. their article gives an interesting account of the developments particularly in malaysia of both in-house clinics and community based legal education. in ‘bridging the academic/vocational divide: the creation of a law clinic in an academic law school,’ frank dignan provides an insight into the process of developing a law clinic at hull university as part of the undergraduate programme. his article indicates an approach which put the legal needs of the local community at the centre of the clinic’s raison d’etre and is an example of how other providers of community advice can be involved in helping to set the clinic’s objectives. ‘clinic and the wider curriculum,’ looks to a future in which clinic is more pervasive throughout the teaching of law. kevin kerrigan and i argue that an integrated curriculum would invigorate the teaching of law and increase student engagement and deepen understanding. the article gives examples of simulated and real experience through which students might learn traditional substantive legal subjects. it particularly argues that real experience should not be limited to the final year of education in a clinic. this article was written before the legal aid changes that are outlined above and is perhaps an example of a tradition on focusing upon educational objectives rather than social justice ones. in ‘walking on two legs in chinese law schools,’ professor landsberg gives a fascinating insight into the us “educate the educators” programme in china. the programme was designed to enable chinese law schools to successfully use experiential teaching. the article highlights the significant legal, political, structural and cultural differences between the two countries. it contains many lessons learned not only by the chinese academy but also the americans involved. in an echo of the article by kevin kerrigan and myself it is interesting to note that professor landsberg queries whether the us should have separated clinic from the teaching of doctrinal subjects and whether china has the greater potential to fully integrate clinic and experiential methods. foreword 9 frances gibson’s article on the ‘convention on the rights of persons with disabilities: the response of clinic,’ investigates both how clinics should be focused on achieving access to the clinic for staff and students with disabilities and improving access to justice for those with disability. the guidelines proposed for clinics include a plan of action for ensuring that clinics themselves make proper adjustment for student disability. it is a reminder of the power of clinic to enhance the lives and prospects of its students as well as the community it seeks to serve. jonny hall, deputy editor 10 international journal of clinical legal education summer 2011 political interference in clinical programs: lessons from the u.s. experience peter a. joy* introduction around the world, law school clinics are playing an increasingly important role in training future lawyers and providing access to the courts for traditionally underrepresented individuals and groups. today, there are law school clinical programs on the continents of africa, asia, australia, europe, north america and south america, and each year brings clinical education to more countries – most recently japan.1 in the united states, which has had clinical programs for several decades, student practice rules in every jurisdiction permit law students to represent clients in and political interference in clinical programs: lessons from the u.s. experience 83 * professor of law & director, criminal justice clinic, washington university school of law in st. louis. 1 japan may be the most recent country to initiate clinical legal education programs, following the adoption of a new system of graduate professional legal education as part of reforms “for the purposes of ‘clarifying the role to be played by justice in japanese society in the 21st century and examining and deliberating fundamental measures necessary for the realization of a justice system that is easy for the people to utilize, participation by the people in the justice system, achievement of a legal profession as it should be and strengthening the functions thereof, and other reforms of the justice system, as well as improvements in the infrastructure of that system.’” recommendations of the justice system reform council – for a justice system to support japan in the 21st century – at http://www.kantei.go.jp/foreign/ judiciary/2001/0612report.html (last visited june 3, 2005) (quoting article 2, paragraph 1 of the law concerning establishment of the justice system reform council) [hereinafter justice system reform recommendations]. the new law schools are a cornerstone of the reforms designed to “bridge between theoretical education and practical education,” and to provide law students with the opportunity to acquire the specialized legal knowledge, lawyering skills, and professional values “necessary for solving actual legal problems.” id. at ch. iii, pt. 2. some of the new law schools have already instituted clinical courses in which law school faculty and students provide legal assistance to clients. see, e.g., takao suami, clinical legal education and the foundation of japanese law schools in the context of judicial system reform (april 15, 2005) (unpublished manuscript, on file with author) (describing the judicial reforms in japan the importance of clinical legal education for japanese law schools). out of court,2 effectively making them “student-lawyers.”3 through their representation of clients, law students in clinical programs experience the practice of law and learn the important lawyering skills and professional values needed to be competent, effective lawyers.4 the student-lawyers in clinical programs, and their supervising clinical faculty, also experience issues that other lawyers representing poor and sometimes unpopular clients face – interference with the selection and representation of clients designed to deny legal services in some matters to those unable to afford to hire other lawyers.5 for more than thirty-five years, clinical programs in the united states have faced political interference and attacks by elected officials, business groups, and others for providing poor people access to the courts on matters including redress of racial discrimination, prisoner rights litigation, death penalty cases, and environmental issues. in each instance, the political interference has sought to subvert the legal process by preventing clinical programs from representing their clients rather than having the courts rule on the legal merits of their clients’ claims. the political interference with law school clinic client representation also appears to be part of the broader 84 journal of clinical legal education december 2005 2 in 1969, the american bar association (aba) promulgated a model student practice rule to facilitate the growth of clinical courses in united states law schools. see proposed model rule relative to legal assistance by law students, a.b.a. rep. 290, 290 (1969) [hereinafter proposed model rule]. the dual jurisdictional system of separate state courts and federal courts in the united states results in each separate jurisdiction having the power to regulate the student practice of law before the courts within the jurisdiction. the high court in each state, usually called the state supreme court, regulates the practice of law before all the trial and appellate courts within the state. in contrast, in the federal system each individual federal court has the authority to adopt its own student practice rule that applies only to those clinical students who appear before it. see george k. walker, a model rule for student practice in the united states courts, 37 wash. & lee l. rev. 1101, 1106-13 (1980). all fifty states, plus the district of columbia and puerto rico, have adopted student practice rules. see joan w. kuruc & rachel a. brown, student practice rules in the united states, 63 b. examiner, no. 3, at 40, 40–41 (1994). in addition, almost every federal court has adopted some form of a student practice rule or permits law students to appear upon motion with the court. see jorge deneve, peter a. joy & charles d. weisselberg, submission of the association of american law schools to the supreme court of the state of louisiana concerning the review of the supreme court’s student practice rule, 4 clinical l. rev. 539, 549–50 (1998). 3 in the united states, law students must be admitted to practice under a state jurisdiction’s or federal court’s student practice rule or order before they are legally and ethically able to provide legal representation to clients or claim to be “student-lawyers.” clinical programs often enroll other students who are not admitted to the limited practice of law under a student practice rule, but these clinical students must function as lawyer assistants or law clerks and not as studentlawyers authorized to provide legal advice and other legal representation to clients. see peter a. joy & robert r. kuehn, conflict of interest and competency issues in law clinic practice, 9 clinical l. rev. 493, 497 (2002). 4 a study by the aba identified ten fundamental lawyering skills and four fundamental professional values essential for the competent, professional representation of clients. see section on legal educ. and admissions to the bar, american bar ass’n, legal education and professional development – a continuum 138–41(1992) [hereinafter maccrate report]. the ten fundamental lawyering skills are: problem solving; legal analysis and reasoning; legal research; factual investigation; communication; counseling; negotiation; dispute resolution; organization and management of legal work; and resolving ethical dilemmas. see id. at 138–40. the four fundamental values of the legal profession are: providing competent representation; promoting justice, fairness, and morality; improving the profession; and fostering professional self-development. see id. at 140–41. 5 robert r. kuehn & peter a. joy, an ethics critique of interference in law school clinics, 71 fordham l. rev. 1971, 1974 (2003). the interference is typically designed to prevent the bringing of certain types of cases, such as environmental or civil rights legal claims, or bringing or defending lawsuits against certain defendants, such as businesses or governmental entities, more that focusing on denying legal representation of certain clients. see infra part ib. the net effect of this interference, however, is such that it would deny those clients unable to afford to pay for legal assistance access to the courts. attacks on public interest lawyers and other lawyers representing clients in disputes with governmental entities, business interest, or other more powerful adversaries. the extent to which clinical programs in other countries currently face or will face political interference in the representation of their clients is unclear. even if political interference in clinical programs is not yet a pressing issue in some countries, an analysis of political interference may be helpful to law faculty currently teaching in or working to implement clinical programs for at least three reasons. first, from a comparative law perspective, understanding the nature of political interference in clinical programs outside of one’s own country may afford useful insights to foster critical thinking about the relationship between the role of lawyers in providing access to the courts and the role of clinical legal education in acculturating law students to the legal profession. second, the increasing internationalisation of law makes understanding the experiences in other countries vital to being a legal educator in the 21st century, and understanding clinical legal education issues in other countries makes clinical educators more effective teachers. finally, understanding the types of political interference and the responses to political interference in the united states may prove useful to clinical faculty in other countries experiencing similar attacks on their work in clinical courses. this article reviews the history of political interference in clinical programs in the united states, considers the attacks on clinical programs in the context of attacks on other lawyers representing the poor or other marginalized clients, and draws lessons from the experience in the united states that may be helpful to clinical programs in other countries.6 with the spread of clinical teaching throughout the world, it is likely that law faculty teaching clinical courses in other countries may encounter the types of political interference with client and case selection experienced by their colleagues in the united states. part i of this article examines the access to justice mission of clinical legal education in the united states and briefly traces the history and types of political interference in law school clinical programs. it also discusses the ethical obligations of lawyers to represent unpopular or controversial clients or causes, and considers how the attacks on clinical programs interfere with a lawyer’s ethical obligation to act independently of third-party interests. part ii examines the relationship between access to justice and the attacks on the major sources of public interest lawyers in the united states. part ii contends that access to the courts is a cornerstone principle for the rule of law, and access to the courts depends on having the assistance of a lawyer. part ii draws a connection between the political interference in clinical programs and other attacks on public interest lawyers. part iii analyzes the legacy of political interference on clinical programs. it discusses the effects of both the highly publicized attacks on clinical programs and the more frequent questions concerning clinical programs’ choices of clients and cases. it argues that the breadth of political interference in clinical programs in the united states indicates that any clinical program may be political interference in clinical programs: lessons from the u.s. experience 85 6 this article builds upon some ideas i have explored in previously published articles. see generally peter a. joy & charles d. weisselberg, access to justice, academic freedom, and political interference: a clinical program under siege, 4 clinical l. rev. 531 (1998) (discussing the nexus between academic freedom, access to the courts, and political interference with clinical programs); peter a. joy, political interference with clinical legal education: denying access to justice, 74 tulane l. rev. 235 (1999) (examining the role of law school clinics in providing access to justice and attacks on law school clinics); kuehn & joy, supra note 5 (examining the history and ethics of political interference in law school clinics). targeted even if the clinical faculty believe that they are taking non-controversial cases. part iii also questions whether political interference in clinical programs will be as great an issue in those countries that make legal assistance in civil cases more available to persons who are unable to afford to hire a lawyer than does the unites states. the article concludes that law school clinical programs can model the highest ideals of the legal profession by evaluating potential cases on the legal merits and pedagogical value and not with a concern for whether or not the case or client may be controversial. i. interference in law school clinic case and client selection a. access to justice mission of clinical legal education in the united states clinical legal education in the united states has existed for more than one hundred years in some form, and it has its roots in law students setting up volunteer legal aid bureaus or dispensaries to assist persons unable to afford to hire attorneys.7 by the early 1950s, clinical pedagogy was becoming accepted both as a valuable means for exposing “the law student to actual problems . . . [of] actual people who are in actual trouble”8 and as a way of advancing “equality of justice” by helping to develop throughout the country “an adequate system of legal aid offices.”9 from its earliest development, clinical legal education in the united states has included an access to justice mission. clinical legal education developed at a much more rapid pace starting in the 1960s, and the social justice mission of providing access to the courts remained a primary goal. starting in 1959 and continuing through 1978, the ford foundation provided approximately $13 million in grants and other assistance to over 100 law schools through a program which was eventually known as the council on legal education for professional responsibility (clepr).10 william pincus, who directed clepr, stressed that access to the courts or “a concern with justice for all” was a 86 journal of clinical legal education december 2005 7 the first clinical programs in the united states were started in the late 1890s and early 1900s as noncredit, volunteer legal aid bureaus or legal dispensaries run by law students at a small number of law schools. see john s. bradway, the nature of a legal aid clinic, 3 s. cal. l. rev. 173, 174 (1930); william v. rowe, legal clinics and better trained lawyers – a necessity, 11 ill. l. rev. 591, 591 (1917). 8 robert g. storey, law school legal aid clinics: foreward, 3 j. legal educ. 533, 533 (1951). 9 id. at 534. a 1951 study of clinical legal education programs identified twenty-eight clinics run by law schools, independent legal aid societies, or public defender offices. see quintin johnstone, law school clinics, 3 j. legal educ. 535, 535 (1951). most of the law schools offered clinics as elective courses or extracurricular activities. see id. at 541–42. 10 from 1959 to 1965, the ford foundation made a total $500,000 in grants to nineteen law schools through a program entitled the national council on legal clinics (nclc). see orison s. marden, clepr: origins and programs, in council on legal education for professional responsibility, clinical education for the law student: legal education in a service setting 3, 3 (1973) [hereinafter clinical education for the law student]. in 1965, the ford foundation provided an additional $950,000 to nclc and renamed nclc the council on education in professional responsibility, which was renamed the council on legal education for professional responsibility (clepr) in 1968. see id. at 3, 6–7. the ford foundation granted an additional $11 million to clepr, which awarded 209 grants equaling approximately $7 million to 107 abaapproved law schools from 1968 through 1978. see margaret martin barry, jon c. dubin & peter a. joy, clinical education for this millennium: the third wave, 7 clinical l. rev. 1, 19 (2000). other clepr support for clinical programs in law schools consisted of teaching materials, publications, and conferences. id. at 19 n.74. challenge for the legal profession,11 and clepr funded clinical programs “to make unique and valuable contributions to the improvement of justice . . . generally to those most in need and least able to afford them.”12 orison marden, chair of clepr, explained that clinical legal education was important to expose law students to “public responsibilities” of the legal profession “to serve the poor as well as the rich, to work for reforms in the administration of justice, to be leaders in their communities.”13 marden also noted that law students needed to learn that lawyers “should be willing to undertake the unpopular cause and to withstand with courage the disapproval of unthinking people when they do so.”14 while clepr funded the growth of clinical programs with a purpose of providing legal assistance to those in need of lawyers, members of the bench and bar also supported the development of clinical legal education for access to justice reasons.15 to facilitate the spread of clinical legal education courses and to enable law students to provide legal representation to clients, the american bar association (aba) promulgated the aba model student practice rule in 1969.16 in creating the model student practice rule, the aba stated that it had dual purposes to assist the bench and bar “in providing competent legal services for . . . clients unable to pay for such services and to encourage law schools to provide clinical instruction.”17 in addition to clepr and the legal profession supporting an access to justice mission of clinical legal education in the 1960s, one commentator noted that the growth of clinical programs was also motivated by “a desire on the part of a significant number of law students to help make the law serve the needs of the poor.”18 other commentators echo the role of law student activism by attributing the growth of clinical legal education to the “social ferment of the 1960s,”19 and to the growing appreciation for the role of law in addressing “the fundamental problems of contemporary society.”20 although clepr, the aba, and law students all encouraged clinical programs to expand access to justice by representing poor and unpopular clients and causes, as clinical programs fulfilled this mission clinical faculty and their students found that some politicians, business interests, and university officials would sometimes attack law school clinics for their choices of clients and cases. political interference in clinical programs: lessons from the u.s. experience 87 11 william pincus, the lawyer’s professional responsibility, in clinical legal education for law students: essays 37, 38 (1980). 12 william pincus, a statement on clepr’s program, in clinical legal education for law students: essays, supra note 11, at 69, 70. 13 marden, supra note 10, at 4. 14 id. 15 for example, a former chief justice for the united states supreme court called on law schools to expand lawyering skills programs, and “provide society with people oriented and problem oriented counselors and advocates to meet the broad social needs of our changing world.” see warren e. burger, the special skills of advocacy: are specialized training and certification of advocates essential to our system of justice?, 42 fordham l. rev. 227, 233–34 (1973). in addition, the united states court of appeals for the district of columbia circuit observed that law student practice “has been praised by members of the judiciary and encouraged by the judicial conference of the united states, and we have ample reason to extend our commendation.” jordan v. united states, 691 f.2d 514, 523 (d.c. cir. 1982). 16 proposed model rule, supra note 2, at 290. colorado adopted a student practice rule in 1909, but only fourteen other states had student practice rules prior to 1969. see michael d. ridberg, student practice rules, in clinical legal education and the law school of the future 223. 231–64 (edmund w. kitch ed., 1970). 17 id. 18 charles e. ares, legal education and the problem of the poor, 17 j. legal educ. 307, 310 (1965). 19 philip g. shrag & michael meltsner, reflections on clinical legal education 1 (1998). 20 arthur kinoy, the present crisis in legal education, 24 rutgers l. rev. 1, 7 (1969). the following section briefly reviews the history and types of political interference with clinic case and client selection. b. history of political interference with clinical programs it is not unusual for clinical programs in the united states to be questioned by people outside of their law schools about the clients and cases the clinics represent. law school alumni, legislators, university trustees, and opposing counsel or parties occasionally ask “why” a law school clinic is providing representation to certain clients asserting legal claims.21 these inquiries often incorrectly equate the clinic’s client representation with law school approval of support for a client’s views or activities, and misunderstand the basic principle that a lawyer’s representation of a client is not an endorsement of the client’s views.22 usually, these inquires end once those raising the questions learn more about the clinic’s teaching and service missions, and how the clinic faculty and students are fulfilling their ethical obligation to make legal services available to clients unable to afford lawyers or whose cause is controversial.23 when those questioning a clinic’s representation have interests opposed to the interests of a clinic’s client, however, the inquiries may turn into attacks on the clinic designed to interfere with or stop the clinic’s representation of its clients or participation in specific types of cases. it is unclear when the first attack and political inference in a clinical program took place, but the first documented instance of political interference appears to be attacks on the clinical program and faculty at the university of mississippi in 1968. state legislators and some members of the legal community complained to university officials and the law school dean because of the clinical program’s involvement in a school desegregation case brought by a local legal services office.24 in response to this pressure, the university dismissed the two law faculty involved in the civil rights litigation for refusing to cease their work with the legal services office.25 the faculty brought a lawsuit against the university, alleging that the university permitted other law faculty to engage in part-time law practice without any restrictions on the clients they could represent. the court agreed that the university impermissibly treated the two faculty members differently and unequally 88 journal of clinical legal education december 2005 21 see joy & weisselberg, supra note 6, at 531. 22 ethics codes in the united states make it clear that a lawyer’s representation of a client is not an endorsement of a client’s views or actions. the high court in each state adopts the lawyer ethics rules, which are usually based on the aba model rules of professional conduct. the aba model rules provide: “a lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of a client’s political, economic, social or moral views or activities.” model rules of prof’l conduct r. 1.2(b) (2005) [hereinafter model rules]. the aba model rules, adopted in 1983 and amended frequently, replaced the aba model code of professional responsibility, which the aba adopted in 1969 and amended in 1980. model code of prof’l responsibility (1980) [hereinafter model code]. more than forty states and the district of columbia have adopted some version of the model rules. see stephen gillers & roy d. simon, regulation of lawyers: statutes and standards 3 (2005). most of the states that have not adopted some form of the model rules retain some version of the model code. id. the model code provides: “the obligation of loyalty to his client applies only to a lawyer in the discharge of his professional duties and implies no obligation to adopt a person viewpoint favorable to the interest or desires of his client.” model code, supra, at ec-17. 23 “legal representation should not be denied to people who are unable to afford legal services, or whose cause is controversial or the subject of popular disapproval.” model rules, supra note 22, at r. 1.2 cmt. 5. 24 francis b. stevens & john l. maxey, ii, representing the unrepresented: a decennial report on publicinterest litigation in mississippi, 44 miss. l.j. 333, 345 (1973); elizabeth m. schneider & james h. stark, political interference in law school clinical programs: report of the aals section on clinical legal education, committee on political interference 1 n.1 (1982) (unpublished report on file with author). 25 trister v. univ. of miss., 420 f.2d 499, 500–02 (5th cir. 1969). than other professors because they represented unpopular clients, and the court ordered the university to reinstate the faculty to their teaching positions.26 in reaching its decision, the court held that the state university could not “arbitrarily discriminate against professors in respect to the category of clients they may represent.”27 soon after the political interference with the work of the clinical faculty at the university of mississippi school of law, the governor of connecticut and members of the local legal community objected to the university of connecticut law school clinic’s representation of viet nam war protestors and other unpopular clients in the early 1970s.28 the attacks included the threat to end state funding for the law school, and the interference led to a proposal for a law school faculty committee to select cases for the clinic.29 a clinic professor requested and received an advisory ethics opinion from the aba discussing the ethical propriety of the new client screening process.30 the aba ethics opinion stated that case-by-case prior approval by a dean or faculty committee would interfere with the independent professional judgment of the clinical faculty and violate the ethical obligations of the dean and faculty members by placing the clinical faculty in a position to violate their ethical duties to clients.31 the aba ethics opinion stated: “acceptance of such controversial clients and cases by legal aid clinics is in line with the highest aspirations of the bar to make legal services available to all.”32 the law school discontinued the screening committee after the aba issued its opinion.33 in the 1980s, there were several more attacks on clinical programs at the state-supported law schools in colorado, idaho, iowa, and tennessee seeking to prevent their clinical programs from filing lawsuits against the state or political subdivisions. in 1981, the governor of colorado vetoed legislation that would have prohibited “law professors at the university of colorado from assisting in litigation against a governmental unit or political subdivision.”34 the legislation was drafted after a law professor, working with students in a constitutional litigation seminar, filed a lawsuit challenging a nativity scene at the denver city and county building claiming that the nativity scene on government property was the government’s endorsement of religion in violation of the united states constitution.35 political interference in clinical programs: lessons from the u.s. experience 89 26 the court found a violation of the equal protection clause of the united states constitution because the law school had imposed on the clinical faculty “restrictions that are different and more onerous than those imposed upon other professors in the same category.” id. at 502. 27 id. at 504. 28 see kuehn & joy, supra note 5, at 1977 n.18 (citing emails from one of the clinical professors who was at the university of connecticut at the time of the attacks on the clinic). the governor stated that the law school clinic was “nothing more than an agency designed to destroy our government and its institutions.” elizabeth m. schneider, political interference in law school clinical programs: reflections on outside interference and academic freedom, 11 j.c. & u.l. 179, 184 (1984). 29 see kuehn & joy, supra note 5, at 1977 & n. 19. 30 aba comm. on ethics & prof ’l responsibility, informal op. 1208 (1972). 31 id. 32 id. 33 see kuehn & joy, supra note 5, at 1977 & n. 21. several years later, in the early 1980s, a high-ranking state official threatened to introduce legislation to limit the activities of the university of connecticut criminal clinic after the clinic successfully challenged a provision of the connecticut death penalty statute. schneider & stark, supra note 24, at 2 n.4. 34 schneider, supra note 28, at 185–86; schneider & stark, supra note 24, at 2. 35 schneider, supra note 28, at 185; schneider & stark, supra note 24, at 2 n.3. the litigation resulted in a court order for the removal of a nativity scene at the denver city and county building, enjoining the inclusion of the nativity scene at the local government holiday display, and the awarding of costs and attorney fees to the plaintiff, who was represented by the university of colorado law professor. citizens concerned for separation of church and state v. city and county of denver, 481 f. supp. 522, 532 (d. colo. 1979), appeal dismissed, 628 f.2d 1289 (10th cir. 1980), cert. denied, 452 u.s. 963 (1981). that same year, legislation was proposed in idaho that would have prohibited the use of state funds for the representation of clients in litigation against the state or any political subdivision.36 this legislation, which was not adopted, was proposed after the university of iowa college of law’s clinic successfully represented prisoners in litigation against the state.37 a year later, in 1982, the idaho house of representatives passed legislation that would have prohibited law faculty and students from participating in lawsuits against the state and would have banned “courses, clinics or classes in which a student assists or participates in any suit or litigation against the state, its agencies or its political subdivisions.”38 the legislation, which was defeated in the state senate, was introduced after the university of idaho college of law clinic challenged the proposed expansion of a highway.39 although these early attacks on clinical programs were largely unsuccessful in limiting clinical programs’ choice of clients and types of cases, in 1981 university officials in tennessee imposed restrictions on the university of tennessee college of law suing the state after the clinic successfully brought a prisoner lawsuit against a state agency.40 the state attorney general filed a motion to deny the law clinic attorney fees arguing that it was illegal to transfer funds from one state agency to another without going through the legislative appropriations process.41 the fee dispute was resolved by directing the attorney fees to the legal services office that housed the clinic,42 but the university board of trustees required the clinic to separate from the legal services office and ordered that “no suits of significance shall be brought by the ut legal clinic on behalf of any litigant against the state.”43 other early instances of political interference with law school clinic case and client selection include litigation in which government officials argued that it would be a conflict of interest for the state-supported rutgers school of law-newark to continue to represent clients in any matter against the state and its political subdivisions,44 and legislation to cut-off state funding for the clinical program at the arizona state university college of law because of the clinic’s representation of clients in lawsuits challenging ownership rights to riverbeds and the state prison system’s failure to provide adequate law library materials to state inmates.45 the conflict of interest litigation failed against the clinical program at rutgers school of law-newark in 1989,46 but in the mid-1990s the arizona legislature successfully inserted language in the state budget that prohibited 90 journal of clinical legal education december 2005 36 schneider, supra note 28, at 185 & n.30; schneider & stark, supra note 24, at 1. 37 see schneider, supra note 28, at 185 n.30. see also kuehn & joy, supra note 5, at 1977 n.18 (citing an email from one of the clinical professors at the university of iowa college of law). 38 schneider, supra note 28, at 186 & n.33. 39 id. 40 memorandum from the clinic advisory committee to the faculty of the university of tennessee college of law 11–12 (may 22, 1981) (on file with author). in 1977, government officials successfully pressured the university of tennessee’s law clinic to withdraw from a lawsuit filed against the tennessee valley authority (tva) for air pollution violations, and the clinical faculty continued representation in his private capacity. see kuehn & joy, supra note 5 at 1979 n.32 (citing telephone interview with dean rivkin, professor, university of tennessee college of law (apr. 5, 2001)). 41 memorandum from the clinic advisory committee to the faculty of the university of tennessee college of law, supra note 40, at 11–12. 42 id. 43 minutes of meeting of board of trustees, university of tennessee 6–7 (sept. 25, 1981) (on file with author). see also douglas a. blaze, déjà vu all over again: reflections on fifty years of clinical education, 64 tenn. l. rev. 939, 960 & n.180 (1997); julia p. hardin, polishing the lamp of justice: a history of legal education at the university of tennessee, 1890–1990, 57 tenn. l. rev. 145, 193 (1990). 44 in re executive commission on ethical standards, 561 a.2d 542, 543–46 (n.j. 1989). 45 see kuehn & joy, supra note 5, at 1980 & nn.39–40. 46 in re executive commission on ethical standards, supra note 44, at 549. the arizona state college of law clinic from representing prisoners in any litigation against the state – a restriction the clinic has followed ever since.47 conditions on government funding have been a frequent, preemptive form of interference with clinical programs. for example, the governor of maryland imposed a requirement on the clinical program at the university of maryland law school and all other legal organizations receiving state funds that prior to filing any lawsuits against the state the entity receiving state funds must notify the state and attempt to resolve the matter without initiating litigation in court.48 this requirement trumps the desires of clinic clients or the litigation strategies of their lawyers. the bureau of prisons has taken a similar and more absolute approach by conditioning law school clinics’ receipt of federal funds for prison legal assistance programs with a condition that the law school clinics shall not sue the united states or any employee of the united states.49 the bureau of prisons’ approach effectively bans laws schools accepting funds to provide legal assistance to prisonerclients seeking to use litigation against the federal government or its employees no matter how blatant the alleged violation of prisoners’ legal rights. these types of funding restrictions obviously apply to all legal service providers and are broader than restrictions targeted solely to clinical programs. some of the most prolonged attacks on clinical programs came in response to work of environmental law clinics. the longest series of attacks were those attacks aimed at the university of oregon law school’s environmental law clinic starting in 1981 and continuing through the early 1990s. the timber industry and government officials exerted pressure on university officials to close the environmental law clinic because of the clinic’s involvement in forest conservation and endangered species cases.50 in response to the pressures, the president of the university of oregon appointed a committee to study the clinic and its use of public funds, and in 1988 the committee issued a report finding that the clinic “fulfills its educational function extremely well, through its advocacy serving a proper social role.”51 similarly, the oregon attorney general, responding to the request of a state legislator requesting an investigation into the propriety of state funds supporting the clinic’s representation of clients in matters against governmental entities, found that the “university is acting for an educational purpose it is authorized to undertake even though there are benefits inuring to private parties.”52 faced with continued attacks and proposed legislative action to cut-off state funding of the law school, the environmental law clinic eventually moved all litigation activities outside of the law school to a not-for-profit environmental law center.53 in more recent years, there were highly publicized attacks on the environmental law clinic at tulane university law school starting in 1993 and continuing until 1998. in 1993, the governor of louisiana demanded that the president of tulane university either “shut up [the director] or get rid of ” the director of the environmental law clinic after the director made public comments political interference in clinical programs: lessons from the u.s. experience 91 47 see kuehn & joy, supra note 5, at 1980 & n. 41. 48 robert barnes, gov. schaefer patches spat with lawyers, wash. post, july 23, 1987, at b5; kuehn & joy, supra note 5, at 1981 & n.44. 49 see, e.g., kuehn & joy, supra note 5, at 1981 n.45 (citing letters and interviews with faculty at the university of southern california law center and washington and lee university school of law). 50 see joy & weisselberg, supra note 6, at 534; kuehn & joy, supra note 5, at 1981–82. 51 university of oregon school of law, report of the ad hoc study committee for the environmental law clinic 15 (nov. 30, 1985) (on file with author). 52 oregon attorney general op-5498 (july 11, 1983). 53 see joy & weisselberg, supra note 6, at 534; kuehn & joy, supra note 5, at 1982. critical of the governor’s plan to reduce state taxes on businesses generating hazardous waste.54 the governor threatened to pull state support for a university building project, deny state educational assistance to residents attending tulane, and prohibit tulane medical schools students from working in state hospitals.55 when the president of tulane did not interfere with the clinic director’s actions, the head of the louisiana department of environmental quality asked the louisiana supreme court to review whether the clinic was complying with the state’s student practice rule.56 that effort also failed, and the louisiana supreme court found no reason to exercise oversight over the clinic.57 several years later in 1997, when the tulane environmental law clinic undertook to represent a primarily low-income, minority community’s opposition to a chemical plant, another governor, other state officials, and business interests sought to derail the clinic’s representation in the matter.58 at first, the attacks involved public criticism, threats to revoke the tax-exempt status of the private non-profit law school, proposals to deny the university state educational trust fund money, and an orchestrated effort to stop charitable donations to the university.59 some louisiana employers even refused to interview or employ tulane students as a way of increasing pressure on the university and law school.60 when none of these pressure tactics proved successful at stopping the clinic’s representation of its clients, the government officials and business groups succeeded in persuading a majority of the elected justices to the louisiana supreme court to impose severe restrictions on the student practice rule aimed at preventing future representation of community groups.61 the amended rule imposes very restrictive income guidelines for clinic client eligibility, requires that at least 51% of an organization’s members must meet the guidelines, prohibits contact with potential clients through community education or other outreach efforts, and 92 journal of clinical legal education december 2005 54 michael dehncke, life in louisiana, tulane law school dicta (new orleans, la.), oct. 25, 1993, at 1 (quoting governor edwin edwards of louisiana) (on file with author). 55 id. 56 letter from kai david midboe, secretary, louisiana department of environmental quality, to pascal f. calogero, jr., chief justice, louisiana supreme court (oct. 15, 1993) (on file with author). see also bob anderson, “politics” prompted protest of tu law clinic, official says, advocate (baton rouge, la.), oct. 19, 1993, at 1b. 57 letter from pascal f. calogero, jr., chief justice, louisiana supreme court, to kai david midboe, secretary, louisiana department of environmental quality (nov. 18, 1993) (on file with author). see also, bob anderson, high court rejects midboe request on law clinic restraints, advocate (baton rouge, la.), feb. 4, 1994, at 12c. 58 see joy, supra note 6, at 243–47. 59 see id. 60 see kuehn & joy, supra note 5, at 1893 n.58 and accompanying text. there have been reports that the prosecutor in houston has discriminated against university of houston law students who have participated in the law school’s innocence network, a clinic that represents wrongfully convicted inmates. see rebecca luczycki, da hiring policies questioned, nat’l jurist, oct. 2002, at 27; john suval, innocence lost, houston press, july 4, 2002, at 13. the prosecutor’s office denies that it discriminates against law students who have participated in the clinic. see id. 61 various business groups sent letters to the louisiana supreme court demanding that the court investigate the tulane environmental clinic and change the student practice rule. see letter from daniel l. juneau, president, louisiana association of business and industry, to pascal f. calogero, jr., chief justice, supreme court of louisiana (sept. 9, 1997) (on file with author); letter from erik f. johnsen, chairman, business council of new orleans and the river region, to pascal f. calogero, jr., chief justice, supreme court of louisiana (sept. 9, 1997) (on file with author); letter from robert h. gayle, jr., president and chief executive officer, the chamber/new orleans and the river region, to pascal f. calogero, jr., chief justice, supreme court of louisiana (sept. 9, 1997) (on file with author). the letter writing campaign seeking changes to the student practice rule was an idea generated at a meeting with governor mike foster of louisiana where business leaders were urged “to send a series of letters to the louisiana supreme court.” shintech’s secret backer, counterpunch, nov. 16–30, 1997, at 2, 2–3. prohibits clinic students from appearing in a representative capacity before a legislature.62 the restrictions make louisiana’s student practice rule the “most restrictive student practice rule in the nation.”63 a challenge to the restrictions on constitutional grounds was rejected by the federal courts.64 after the attacks on the tulane clinical program, there were highly publicized attacks on the university of pittsburgh environmental law clinic, for the representation of community groups that were seeking to block the sale of timber in a national forest in 2001,65 and for representation of a community organization raising environmental concerns over the plans for a new highway in 2002.66 the attacks on the clinic at the university of pittsburgh involved state legislators and business groups, and the first set of attacks succeeded in convincing the state legislature to pass a budget measure, which the governor signed, prohibiting taxpayer funds to be used to support the environmental law clinic.67 relying on private funds, the clinic continued and experienced further attacks in which opponents, using the threat of cutting off all state aid for the public university, sought to have university officials fire the director and close the clinic.68 although university officials originally took actions to force the clinic out of the law school, they abandoned giving into the political interference after the university’s academic freedom and tenure committee found that the proposal to force the clinic to leave the law school infringed on academic freedom.69 another recent attack on a clinical program has come from a state legislator, the local media, and others against the civil rights project at the university of north dakota for representing clients challenging a display of a monument of the ten commandments on city property.70 among the political interference in clinical programs: lessons from the u.s. experience 93 62 see la. sup. ct. r xx (1999). 63 letter from carl c. monk, executive director, association of american law schools, to murphy j. foster, governor, state of louisiana 1 (aug. 21, 1998) (on file with author). 64 s. christian leadership conference v. supreme court of la., 61 f.supp. 2d 499 (e.d. la. 1999), aff ’d, 252 f.3d. 781 (5th cir.), cert. denied, 534 u.s. 995 (2001). 65 senator wants to punish pitt for logging suit, pa. l. wkly., may 28, 2001, at 9; jim eckstrom, scarnati prepared to hit u. pittsburgh where it counts – budget, bradford era (bradford, pa.), may 23, 2001. see also kuehn & joy, supra note 5, at 1985–86. 66 don hopey, law clinic at pitt feeling pressure, pittsburgh post-gazette, oct. 17, 2001, at b-1; johnna a. pro, road group targets law clinic at pitt, pittsburgh post-gazette, aug. 24, 2001, at b-4. see also kuehn & joy, supra note 5, at 1986–88. 67 state senator gets symbolic rebuke of pitt professor, associated press newswires, june 23, 2001, westlaw, panews library. 68 frank irey jr., pitt should drop client that opposes expressway, pittsburgh post-gazette, sept. 19, 2001, at e-2 (letter to editor from the president, mon valley progress council). see also kuehn & joy, supra note 5, at 1986–87. 69 university of pittsburgh senate, report of the tenure and academic freedom committee on the environmental law clinic (jan. 28, 2002) (on file with author); don hopey & bill schackner, faculty rips pitt, defends law clinic, pittsburgh post-gazette, jan. 29, 2003, at b-1; don hopey & bill schackner, in reversal, pitt decides to keep law clinic going, pittsburgh postgazette, mar. 15, 2002, at a-1. 70 see chuck haga, city is sued to remove religious monument: fargo’s ten commandments plaque is at issue, star tribune (minneapolis, minn.), oct. 30, 2003, at 1a. the clinic represented citizens objecting to a ten commandment monument on city property as constituting the government’s endorsement of religion in violation of the first amendment of the united states constitution, which states: “congress shall make no law respecting an establishment of religion . . . . u.s. const. amend. i. the clinic’s representation of the clients in the controversial case prompted a state legislator to seek an investigation charging that the clinic’s representation against the municipality was “a totally inappropriate use of public funds.” tony lucia, u. north dakota law school criticized for taking ten commandments case, university wire, sept. 15, 2003. a local newspaper supported the representative’s efforts and called for the “university to rein in its law school.” und should rein in its law school, bismark tribune, sept. 4, 2003, a4. responding to criticisms, the interim dean of the law school stated tactics employed to stop the clinic from representing its clients was a request from the state lawmaker for the north dakota attorney general to investigate whether the state supported law school’s clinic could represent individuals with claims against the state or its political subdivisions.71 the attorney general issued an opinion finding that the clinic was acting legally and that “the legal clinic’s representation of the client does not constitute the state or university’s position on the underlying subject matter.”72 the attorney general also found that “the north dakota rules of professional conduct support the principle that controversial or unpopular clients should not be denied legal representation.”73 after the attorney general issued his opinion, someone who had made “several harassing statements” toward the clinic director and the clinical program because of the ten commandment case sued the director and the clinic alleging viewpoint discrimination when the clinic declined to provide legal assistance to him.74 the clinic declined to represent him due to lack of time and resources, and also because of curricular and ethical reasons. the clinic director “determined that the clinic would not be able to establish an effective client-attorney relations with him based on . . . [his] antagonistic position against her personally and the clinical program.”75 although his case was dismissed at the federal district court level at the beginning of the litigation, the court of appeals has ruled that the district dismissed the case prematurely.76 reconsideration of this ruling has been sought, and the matter will be remanded to the district court for additional proceedings if the court of appeals does not reconsider the matter. this brief history into the nature and types of attacks on clinical programs is part of what one commentator, writing in 1984, characterized as “a broader war on legal services and public interest legal groups” in the united states.77 that connection between the attacks on public interest lawyers and clinical programs has been repeatedly made since that time by others, and the next section examines some of the larger issues of access to justice and attacks on lawyers serving those otherwise unable to afford legal assistance in order to place the attacks on clinical programs in context. 94 journal of clinical legal education december 2005 that the law school did not seek out controversial cases, “[b]ut as attorneys, we’re not supposed to refuse to take cases just because they’re controversial. when you think about it, that would have a devastating effect on a person’s ability to attain an attorney.” brenden timpe, n.d. attorney general sides with u. north dakota law school’s representation, university wire, sept. 30, 2003. 71 n.d. attorney general op. 2003-l-42 (sept. 26, 2003). 72 id. 73 id. 74 see washington university school of law, clea newsletter, feb. 2005, at 43 (on file with author). 75 id. 76 wishnatsky v. rovner, 433 f.3d 608, 612–13 (2006) 77 schneider, supra note 28, at 180. professor elizabeth schneider may have been the first commentator to observe that interference in clinical programs bringing public interest litigation has been part of the attacks on public interest lawyers throughout the united states. ii. access to justice and attacks on public interest lawyers access to the courts is generally accepted to be a precondition for justice, and equal access to justice and equality of justice are among the most fundamental principles of a democratic society.78 individuals and groups customarily must have lawyers representing them to assert rights before courts and administrative agencies and without lawyers to advocate for them their rights are usually lost.79 indeed, fairness in a legal proceeding assumes a meaningful opportunity to be heard, and the right to be heard is often an empty promise if legal representation is not available.80 despite the promises of equal justice and access in the united states, the poor are not entitled to the assistance of a lawyer if they cannot afford to hire one except in criminal cases.81 those individuals and families with incomes at or below 125% of the poverty level as defined by the federal government are eligible for federally funded legal services through the legal services political interference in clinical programs: lessons from the u.s. experience 95 78 these principles are repeated often in the united states, and underlie the motto “equal justice under law,” which is inscribed above the entrance to the united states supreme court building. former united states supreme court justice lewis powell explained, “equal justice under law is not just a caption on the facade of the supreme court building. it is perhaps the most inspiring ideal of our society . . . it is fundamental that justice should be the same, in substance and availability, without regard to economic status.” scott s. brinkmeyer, are the doors to the courthouse really open?, 83 mich. b.j. 12, 13 (2004) (quoting lewis powell, address to the aba legal services program, aba annual meeting (1976)). “if we are to keep our democracy, there must be one commandment: thou shalt not ration justice.” in re smiley, 330 n.e. 2d 53, 63 n.y. 1975) (internal quotations omitted) (quoting learned hand, address before the legal aid society of new york (1951)). [footnote to be completed with citation to international sources] 79 professor edgar s. cahn & jean c. cahn have explained: the lawyer’s function is essentially that of presenting a grievance so that those aspects of the complaint which entitle a person to a remedy can be communicated effectively and properly to a person with power to provide a remedy. . . . [i]t is altogether possible that for many a remedy is available if the grievance is properly presented. . . . edgar s. cahn & jean c. cahn, the war on poverty: a civilian perspective, 73 yale l.j. 1317, 1336 (1964). 80 “at the very heart of our recognition of the right to counsel elsewhere has been our articulated conviction that the right to be heard would be of little avail of it did not comprehend the right to be heard by counsel.” smiley, 330 n.e. 2d at 59 (jones, j., dissenting) (internal quotations omitted) (quoting people ex rel. menechino v. warden, 267 n.e. 2d 238, 241 (n.y. 1971)). 81 the sixth amendment to the u.s. constitution provides: “in all criminal prosecutions, the accused shall enjoy the right to ... be informed of the nature and cause of the accusation; to be confronted with the witnesses against him ... and to have the assistance of counsel for his defense.” u.s. const. amend. vi, 1. the landmark case of gideon v. wainwright interpreted this language to mean that defendants have a right to counsel at all criminal trials where incarceration was possible. gideon v. wainwright, 372 u.s. 335, 344 (1963) (“any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”). subsequent to the gideon decision, the supreme court refused to extend the constitutional right to counsel in civil matters holding that the due process clause of the fourteenth amendment requires the appointment of counsel only where denial would prove “fundamentally unfair.” lassiter v. dept. of social services, 452 u.s. 18, 33 (1981). the fundamental fairness test in lassiter requires an inquiry into “the private interests at stake, the government’s interest, and the risk that the procedures used will lead to erroneous decisions.” id. at 27. few judges have been reversed for finding that counsel is not required under this test. deborah l. rhode, the constitution of equal citizenship for a good society: access to justice, 69 fordham l. rev. 1785, 1798 (2001). in many states, however, case law, legislation, or constitutional provisions guarantee the assistance of counsel in some criminal matters where incarceration is not possible, some quasi-criminal matters, or some civil proceedings. see, e.g., in re miller, 585 n.e. 2d 396, 400 (1992) (holding that involuntary commitment is a sufficient deprivation of liberty requiring at lawyer for due process protection); in re adoption of r.i., 312 a.2d 601, 603 (pa. 1973), cert. denied, 429 u.s. 1032 (1977) (holding that an individual is entitled to representation by counsel when contesting proceeding to terminate parental rights). see robert l. spangenberg & marea l. beeman, toward a more effective right to assistance of counsel: indigent defense systems in the united states, 58 law & contemp. probs. 31, 31 (1995); randolph n. stone, the role of state funded programs in legal representation of indigent defendants in criminal cases, 17 am. j. trial advoc. 205, 207 (1993). corporation (lsc),82 but the lsc estimates that it handles only some of the legal problems for approximately 20% of those eligible.83 professor david luban estimates that there are only 4000 legal-aid lawyers plus an estimated 1000 to 2000 additional lawyers representing the poor in the united states.84 as a result, “[a]n estimated four-fifths of the legal needs of the poor, and the needs of two-to three-fifths of middle-income individuals, remain unmet.”85 in the context of the very limited legal services for the poor in the united states, efforts to limit or prohibit the legal services provided by clinical programs are particularly troubling, and they are part of the same attacks and restrictions experienced by others providing legal assistance to the poor.86 similar attacks and often more serious restrictions have been directed to lsc and aid to public interest lawyers through interest on lawyers trust accounts (iolta) programs. a brief review of the attacks on lsc and iolta demonstrates the similarity with the attacks on clinical programs. a. restrictions on lsc recipients federal funding restrictions on the lsc have long prohibited the lsc from providing representation to clients on controversial issues such as abortion, but in 1996 the united states congress enacted even greater restrictions. today, lsc-funded lawyers may not participate in any class action litigation, may not collect court-awarded attorney’s fees, litigate on behalf of anyone incarcerated, or represent various classes of non-citizens, many of who have legal immigration status.87 in addition, lsc-funded lawyers may not be involved in election redistricting cases, evictions from public housing of persons allegedly involved with drugs, or attempts to influence 96 journal of clinical legal education december 2005 82 see legal services corp., serving the civil legal needs of low-income americans 1 (2000), at http://www.lsc.gov/pressr/exsum.pdf [hereinafter serving civil legal needs] (last visited june 17, 2005). the legal services corporation (lsc) was created by the federal government in 1974 and “charged by congress ‘to provide equal access to the system of justice in our nation for individuals who seek redress of grievances’ and ‘to provide high quality legal assistance to those who would otherwise be unable to afford adequate legal counsel.’” id. in 2000, approximately 34.5 million americans lived in households with incomes below the poverty level, and an additional 10 million more had incomes between 100% and 125% of the poverty level, thereby making them eligible for lsc legal assistance. id. at 12. 83 nationwide survey of the civil legal needs of the poor 4, in two nationwide surveys: 1989 pilot assessments of the unmet legal needs of the poor and of the public generally (american bar ass’n 1989). 84 david luban, taking out the adversary: the assault on progressive public-interest lawyers, 91 calif. l. rev. 209, 211 (2003). 85 deborah l. rhode, equal justice under law: connecting principle to practice, 12 wash. u. j.l. & pol’y 47, 47 (2003). see also roger c. cramton, mandatory pro bono, 19 hofstra l. rev. 1113, 1121 (1991) (“but informed observers agree that there remains a tremendous unmet need, estimated at 75% to as much as 95% of the total legal needs of the poor.”) in the united states, “approximately 35.8 million people lived below the poverty line in 2003, or about 12.5 percent of the population.” tyche hendricks, number living in poverty grows as middle-class incomes stay flat, san francisco chron., aug. 27, 2004, at a20. various studies support the view that most of the legal needs of those living at or near the poverty level are not being met by the legal system in the united states. see, e.g., albert h. cantril, agenda for access: the american people and civil justice 1–2 (american bar ass’n 1996) (presenting survey results of the nearly 20% of the households eligible for federally funded legal services); legal needs and civil justice: a survey of americans 23 (american bar ass’n 1994) (finding that the legal system does not address approximately 71% of the legal problems of low-income households). 86 see note 77 and accompanying text. 87 serving civil legal needs, supra note 82, at 2. congress originally imposed a prohibition on litigation to challenge existing welfare laws, but the supreme court ruled that provision as viewpoint discrimination in violation of the first amendment. legal servs. corp. v. velazquez, 531 u.s. 533, 547–48 (2001). challenges of other restrictions on equal protection and due process bases failed. see legal aid soc. of haw. v. legal serv. corp., 145 f.3d 1017 (9th cir. 1998); velazquez v. legal servs. corp., 164 f3d 757 (2d cir. 1999). government rulemaking or the enactment of laws.88 those receiving lsc funds are also prohibited from using any nonfederal funds to fund any prohibited legal representation.89 some of these restrictions also have the effect of making it more costly and time consuming for lsc lawyers to pursue certain claims. for example, the restrictions require lsc lawyers to litigate individual cases when a class action case would be more efficient, thus presenting lsc lawyers with the choice of engaging in redundant litigation or turning away the individual cases that would be most amenable to class action representation.90 the ban on receiving attorney fees also deprives lsc offices of supplemental funds that could be used to represent more clients. when lsc lawyers do litigate in matters where attorney fees are possible, the congressional ban on seeking attorney fees also removes some of the incentives for defendants to resolve cases quickly or to enter into settlement discussions because defendants will not have to pay reasonable attorney fees for the work done by the lsc lawyers representing successful clients. as a result of the lsc restrictions, whole groups of otherwise income eligible persons with cognizable legal claims are denied legal representation and an opportunity to have their claims presented. even those individuals who are not barred from receiving legal representation find that they cannot have a lawyer for certain types of legal problems, nor have a lawyer assist them in asking legislators or other government officials from creating systematic solutions and preventative measures to reoccurring problems through changes in the laws and rules. because of the restrictions on the lsc and the lsc’s ability to assist only a small fraction of those who are income eligible because of inadequate funding, other forms of legal assistance for the poor become even more importation. but, the attacks on public interest lawyers have extended to the other means of providing lawyers for the poor. b. legal challenges to iolta programs funding civil legal services iolta programs are an important source of funding for public interest lawyers providing civil legal services to the poor in the united states. clients funds that are too small to be placed in individual trust accounts, or held for too short of a period of time to earn interest for individual clients after paying bank fees, are placed in pooled iolta accounts where the funds generate interest that is used to support non-governmental organizations providing public interest lawyers.91 political interference in clinical programs: lessons from the u.s. experience 97 88 serving civil legal needs, supra note 82, at 2. 89 id. 90 professor david luban has described this dilemma and suggests that it is more likely that rather than litigate numerous individual cases, lsc lawyers will turn those cases down that creating a “perverse result: the more poor people a legal problem affects, the less likely they are going to find a lawyer to represent them.” luban, supra note 84, at 223. 91 the fiduciary obligations of a lawyer require that the lawyer hold client funds separate from the lawyer’s funds. see, e.g., model rules, supra note 22, at r.1.15(a) (“a lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property.”); model code, supra note 22, at dr 9-102 (“all funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein . . . .”); restatement (third) of the law governing lawyers § 44(1) (stating that a lawyer must hold property in which a client has or claims an interest “separate from the lawyer’s property”); national legal aid & defender association, fact sheet on interest on lawyers’ trust accounts (iolta), at http://www.nlada.org/dms / d o c u m e n t s / 1 0 1 1 3 0 0 7 4 9 . 7 5 / f a c t % 2 0 sheet%20on%20iolta.pdf (last visited june 17, 2005) (describing iolta accounts). iolta programs were made possible by changes in banking laws and regulations that permitted the pooling of funds into a single interest bearing account there are iolta programs in all fifty states and the district of columbia, and together they rank second only to the lsc in funding legal services for the poor.92 yet, there have been a number of legal challenges to iolta programs funding civil legal services. although there have been attacks on iolta programs since the 1980s,93 the washington legal foundation (wlf), known for litigating free-enterprise and property rights issues, has been the principal opponent to iolta in recent years.94 in a succession of cases litigated in several states,95 wlf challenged iolta programs as an impermissible “taking” of private property under the united states constitution.96 as a result of the litigation to date, the united states supreme court ruled in one case “that the interest income generated by funds held in iolta accounts is the ‘private property’ of the owner of the principal.”97 in a second and more recent case, the court held that even if the iolta program was a per se taking, the taking was for a legitimate public use and “compensation is measured by the owner’s pecuniary loss – which is zero.”98 the court reached the conclusion that the wlf clients had no cognizable pecuniary loss based on the lower court’s finding that if the individual client funds were substantial enough “to make any net return, they would not be subject to the iolta program.”99 the court’s decisions in the wlf cases still leave open the question of whether or not iolta programs violate the first amendment rights of those challenging the programs because their property generates the funds supporting litigation with which they may disagree.100 in a dissenting opinion, one supreme court justice noted that the first amendment issue had not yet been addressed by the court and he predicted: “one constitutional violation (the taking of property) likely will lead to another (compelled speech). these matters may have to come before the court in due course.”101 in a statement issued after the last supreme court decision, the wlf stated that 98 journal of clinical legal education december 2005 that were adopted in the early 1980s. prior to this time, small or short-term client funds were kept in noninterest bearing accounts and the banks benefited from the use of the funds held interest free. see fact sheet on interest on lawyers’ trust accounts (iolta), supra. when a client’s funds are substantial enough to net interest after the payment of banking fees, lawyers should place those funds in a separate trust account for the benefit of the client. 92 iolta programs generated over $139 million in 1999. fact sheet on interest on lawyers’ trust accounts (iolta), supra note 91. the budget for lsc was $335 million in 2004. national legal aid & defender association, president’s fy 2005 budget request remains the same, at http://www.nlada.org/civil/nlada_news/2004030130394725 (last visited june 20, 2005). 93 see, e.g., luban, supra note 84, at 227 & n.70 (describing and citing early litigation against iolta programs). 94 the washington legal foundation (wlf) also sided with the business interests attacking the tulane environmental clinic. see infra note 104 and accompanying text. 95 see luban, supra note 84, at 228–34 (describing washington legal foundation litigation against iolta in massachusetts, texas, and washington). washington legal foundation (wlf) literature states that wlf “has been battling iolta programs on behalf of property owners since 1991.” washington legal foundation, litigation update: supreme court rejects challenge to confiscatory iolta programs (apr. 4, 2003), at http://www.wlf.org/upload/4-403iolta.pdf (last visited june 20, 2005). 96 the takings clause of the fifth amendment states “nor shall private property be taken for public use, without just compensation.” u.s. const. amend v. 97 phillips v. washington legal found., 524 u.s. 156, 172 (1998). 98 brown v. legal found. of wash., 538 u.s. 216, 240 (2003). see also marcia coyle, battle over iolta could be renewed: using funds for indigent clients might be seen as “compelled speech”, nat’l. l.j., mar. 31, 2003, at a5. 99 brown v. legal found. of wash., 538 u.s. at 240 (citing washington legal foundation v. legal foundation of washington, no. c97-0146c (wd wash., jan. 30, 1998), app. to pet. for cert. 94a). 100 id. at 228 (stating that one of the claims raised by the wlf was a first amendment issue). 101 id. at 253 (kennedy, j., dissenting). “wlf is consulting with its clients to determine whether they wish to continue to pursue their first amendment claims.”102 whether wlf challenges to iolta on first amendment grounds will materialize remains to be seen. even some supporters of the wlf’s takings clause challenges acknowledge that a successful first amendment challenge would be very difficult.103 still, wlf and others have been challenging iolta programs almost from their inception, and there is no clear sign that litigation against iolta funding civil legal services will cease. indeed, the wlf’s attack on public interest lawyers appears to be broader than just attacks on iolta programs. for example, the wlf sided with the business groups seeking changes in the louisiana student practice rule to stop the tulane environmental clinic from representing community groups by filing an amicus brief in federal court arguing that the restrictions on clinic students’ ability to represent indigent clients are appropriate.104 iii. the legacy of political interference on clinical programs the history and description of political interference in clinical programs demonstrate that in some instances restrictions have been imposed that foreclose particular clinical programs from representing certain clients, advancing some legal claims for clients, or engaging in litigation strategies against some parties.105 these are the same types of restrictions imposed on the lsc. the restrictions on clinic case and client selection also have the effect of essentially cutting off funding for the legal representation to the poor, one of the goals of challenges to iolta programs. in addition to the formal restrictions that have been imposed on some clinical programs, commentators suggest that perhaps a greater number of clinical programs have imposed their own internal restrictions and “have refused to represent certain controversial cases or clients because of fears that taking such cases could result in threats to their continued operation.”106 for example, commenting on the attacks to the tulane environmental law clinic, the director of one of the political interference in clinical programs: lessons from the u.s. experience 99 102 litigation update: supreme court rejects challenge to confiscatory iolta programs, supra note 95. 103 responding to the court’s rejection of the takings clause claims, james burling, who filed an amicus brief on behalf of the pacific legal foundation supporting the wlf in brown v. legal foundation of washington, stated that it “would be tough to raise a first amendment challenge to” using iolta funds for civil litigation “like divorces and landlord-tenant problems.” coyle, supra note 98, at a5. he stated, however: “if you’re talking about money used for impact litigation – to make policy decisions – you might be on more fertile ground.” id. 104 see brief for amicus curiae washington legal foundation and economic freedom law clinic, s. christian leadership conference, la. chapter v. supreme court of la., 252 f.3d 781 (5th cir. 2001). the washington legal foundation (wlf) describes their amicus brief in this case as part of its project reigning in the plaintiffs’ bar. see washington legal foundation, reining in the plaintiffs’ bar, at http://www.wlf.org/litigating/casedetail.asp?detail=4 7 (last visited june 20, 2005). wlf literature states that the as part of its reining in the plaintiffs bar project it “has litigated to ensure that court-awarded fees are kept within reasonable limits, that public funds are not used to support unwarranted litigation, and that appropriate sanctions are imposed on attorneys who file frivolous suits or otherwise abuse the public trust.” id. none of these issues are present in the limits imposed on clinical programs in louisiana. see supra notes 62–63 and accompanying text. in addition to its amicus brief, the wlf took out an advertisement in the new york times criticizing clinical programs for the clients clinics represent. see daniel j. popeo, a one-sided paper chase, advertisement, n.y. times, feb. 20, 2000, at a23. 105 see supra part i.b. for a discussion of restrictions that have been imposed on some clinical programs. 106 kuehn & joy, supra note 5, at 1989 & n.87. largest clinical programs in the united states reportedly stated that her program is “very careful about the cases it accepts” and that it “tries to avoid high-profile cases.”107 it is important to recognize, however, that most of the work of clinical programs in the united states involves the representation of individual clients in matters that have been described as “oneclient-at-a-time, more-or-less routine, direct-client representation.”108 in addition, some of the cases that triggered political attacks, such as prison litigation to gain access to library resources for inmates,109 may not have seemed like a controversial case when the clinic first undertook the representation. what makes a case controversial often has less to do with the case itself, and more to do with the reaction of a government official, opposing counsel, or an interested party. the breadth of the attacks on clinical programs, in both public and private law schools, for the different types of cases handled “demonstrates that no law clinic program is immune from such assaults.”110 still, those clinical programs that intentionally take some challenging cases that may be controversial in order to provide clinic students with the exposure to more complex legal issues run a greater risk of being targeted for political interference. this is particularly troubling because of the long history in the unites states of published court decisions in which clinical law students and faculty represented individuals with regard to important issues such as access to the courts in forma pauperis,111 challenging discrimination in radio broadcast licensing,112 sex discrimination in employment,113 supporting municipal nuisance ordinances,114 asserting the civil rights of the homeless,115 representing inmates in civil rights cases against municipalities and police for intentionally violating their miranda rights,116 and other important cases.117 it is undeniable that political interference in clinical programs in the united states has taken its toll not only on those clinics that have been targeted but also on other law school clinics. the public attacks on law school clinical programs represent just a small percentage of the less well publicized 100 journal of clinical legal education december 2005 107 caille m. millner, harvard u. law school watches court case about legal assistance, university wire, mar. 9, 1999 (paraphrasing jeanne charn’s statements reacting to the attacks on the tulane environmental law clinic). jeanne charn, lecturer in law and director of the hale and dorr legal services center for harvard law school, one of the largest law school clinical programs in the united states, is also quoted as stating, “the best way for students to get clinical education is to avoid tackling controversial cases.” id. in the article, charn does not explain if her clinical program attempts to screen out controversial cases for purely pedagogical reasons, or if the aversion to controversial cases is related to some fear of possible interference with the clinical program. see id. 108 luban, supra note 84, at 236. 109 see supra note 45 and accompanying text. 110 kuehn & joy, supra note 5, at 1992. 111 california men’s colony, unit ii men’s advisory council v. rowland, 939 f.2d 854 (9th cir. 1991), rev’d, 506 u.s. 194 (1993) (post-conviction project, university of southern california). 112 national black media coalition v. f.c.c., 822 f.2d 277 (2d cir. 1987) (media law clinic, new york university school of law). 113 congregation kol ami v. chicago comm’n on human relations, 649 n.e.2d 470 (ill. app. ct. 1995) (edwin f. mandel legal aid clinic, university of chicago). 114 inter urban bar assoc. of new orleans v. city of new orleans, 652 so.2d 1038 (la. app. ct. 1995 (tulane environmental law clinic, tulane law school). 115 johnson v. bd. of police comm’rs, 351 f. supp. 2d 929 (e.d. mo. 2004) (civil justice clinic, washington university in st. louis & st. louis university legal clinic); streetwatch v. nat’l r.r. passenger corp., 875 f. supp. 1055 (s.d.n.y. 1995). 116 california attys. for crim. justice v. butts, 195 f.3d 1039 (9th cir. 1999) (center for clinical legal education, boalt hall school of law, university of california, berkeley). 117 the cases listed in footnotes 112–117 represent a small number of reported cases in which clinical programs have represented clients. questions clinical programs more frequently face over the clients and cases clinics represent.118 each phone call or letter to a clinic director, law school dean, or university official questioning a clinic’s involvement in the case raises the possibility that the questions may turn into pressure to force the clinic to end its representation of a client in need, to refuse to represent such clients in the future, or to avoid representing any client against more powerful parties such as governmental entities or large businesses. both the public, prolonged attacks on clinical programs and the more frequent phone calls and letters questioning clinics’ representation of clients send a message to clinical programs that representation of almost any client, and particularly unpopular clients or controversial causes, may come at a cost. when viewed in connection with the attacks on the lsc and iolta, the political interference in clinical programs also demonstrate that those who ultimately suffer the most are the potential clients whose rights are being lost due to the lack of legal representation.119 in many ways, interference with clinical programs operate like slapp suits – strategic lawsuit against public participation. in slapp suits, citizens in the united states protesting corporate policies, business developments, or even complaining against teachers or police, may face lawsuits for defamation or tortuous interference with business. although nearly all slapp suits are dismissed before trial, the slapp suits are designed to intimidate opposition by causing those protesting to incur large legal fees and to fear possible personal liability.120 because of fear of slapp suites, citizen participation is often stifled. the ultimate aim of those interfering with clinical programs is also one of intimidation – to cause clinical faculty, law school deans, and university administrators to drop cases and to avoid taking cases against certain businesses or governmental entities. to the degree that clinical faculty screen out cases that would otherwise make good clinic cases because faculty fear that the cases may be trigger interference, the faculty succumb to ultimate aim of those seeking to block legal representation for anyone challenging their actions. experience in the unites states has shown that cultivating support for clinical programs among non-clinical faculty and law school deans is key to withstanding political interference. such support generally flows from explaining what the clinic does, and how cases are selected based on pedagogical values and, when it is a goal of a clinic, the legal needs of the community. it is also good to cultivate contacts with the local media, and to explain to them the important work that the clinic is doing. it is not unusual in the united states for clinical programs to be the focus of human interest stories. it is best to have the support for clinical programs in place prior to an instance of interference, and it is important to resist the interference. pointing out that the interference is seeking to deny access to the courts for those unable to hire attorneys is often a hook that some in the media use to characterize the conflict. the full extent of direct and indirect pressure on clinical faculty to restrict their client and case selection is not known, but there are sufficient examples to illustrate that this is a problem, at least in the united states. whether and to what extent clinical faculty in other countries face or will face political interference in clinical programs: lessons from the u.s. experience 101 118 see, e.g., joy & weisselberg, supra note 6, at 531 & n.1 (stating that many who teach in clinical programs receive inquires from people outside of the law school questioning “why ‘the law school’ is involved in a particular case”); kuehn & joy, supra note 5, at 1989 n.88 (documenting several instances of complaints to law school deans and pressure on university officials to order clinical programs to withdraw from litigation). 119 there are no reported instances of clinical programs or their clients being targeted by countersuits, often referred to as slapp suits – strategic 120 see luban, supra note 84, at 219. similar issues of political interference in the clients they represent are questions that existing scholarship and news reports do not answer.121 in contrast to the united states, the australian states, canada, new zealand, european countries, and some other nations have different schemes for providing legal assistance to individuals in civil matters which may make legal counsel more available for lower income persons than it is in the united states.122 the greater availability of legal counsel to those unable to hire attorneys in other countries may possibly mute or tend to discourage attacks on clinical programs providing representation to those with low incomes. there may also be some different cultural norms against attacking access to the courts in other countries that may prevent some attacks on clinical programs. nevertheless, clinical faculty in other countries may find that understanding the experience of attacks on clinical programs in the united states will be helpful in addressing this issue should their clinical programs become the targets of similar political attacks. conclusion an essential cornerstone of any society based on the rule of law is access to the courts.123 in a functioning democracy, access to the courts is access to justice, and an individual’s right to sue and to defend against actions taken by the state or others becomes “the right that protects all other rights.”124 thus, in many countries the most pressing issues are the fairness of the judicial system and the allocation and delivery of legal services – conditions necessary for an effective rule of law. the political interference in clinical programs affects the ability of law school clinics to provide access to the courts to traditionally underrepresented individuals, families, and groups. when efforts to limit the types of clients or causes clinical programs are successful, they effectively close the courthouse doors to those unable to find other legal representation. in this way, political interference in clinical programs is a maneuver designed to subvert the normal processes of the rule of law. political interference in clinical programs, like the attacks on other programs providing lawyers for the low income persons and community groups in the united states, has been called a “silencing doctrine” or “extralegal strategy” because these attacks are deliberate attempts to deny those 102 journal of clinical legal education december 2005 121 this author was unable to find scholarly articles, reports, or news items discussing political interference in clinical programs outside of the united states. however, conversations with clinical faculty from australia, canada, great britain, and israel have disclosed instances of varying degrees of interference with clinical programs. 122 see, e.g., earl johnson, jr., the right to counsel in civil cases: an international perspective, 19 loy. l.a. l. rev. 341, 342 (1985) (citing the laws and constitutional provisions establishing the right to legal counsel in civil cases in countries around the world); lua kamal yuille, no one’s perfect (not even close): reevaluating access to justice in the united states and western europe, 42 columbia j. transnat’l l. 863, 878–85 (2004) (describing civil legal assistance as a “right” in most european countries). although some countries may describe civil legal assistance as a right, or make legal assistance in civil matters more available to low income persons than it is in the united states, providing adequate legal representation to persons unable to pay for lawyers is a world-wide issue. 123 see, e.g., jégo-quéré v. commission, ct. first instance, case no. t-177/01 (2002) (stating that “it should be borne in mind that the court of justice itself has confirmed that access to the courts is one of the essential elements of a community based on the rule of law”); david luban, lawyers and justice: an ethical study 256–66 (1988) (arguing that access to the courts is necessary to promote the legitimacy of a government). 124 deborah l. rhode, professionalism in law schools, 27 fla. st. u.l. rev. 193, 199 (1999). 125 luban describes silencing doctrines as “statutes, rules, and judicial decisions that allow opponents to attack the funding or restrict the activity of their adversaries’ advocates.” luban, supra 84, at 220. i have previously discussed the attacks on the tulane environmental clinic, and the successful efforts to persuade the elected judges of the louisiana supreme court to adopt restrictive student practice rules, as extralegal because they prevent “opposing parties from having meaningful access to the courts.” joy, supra note 6, at 272 n.188 and accompanying text. professor lynn lopucki and walter weyrauch coined the term “extralegal strategies” to describe “strategic effort is devoted to extralegal means of deterring those entitled to legal remedies from suing or from continuing suits already filed.” lynn m. lopucki & walter o. weyrauch, a theory of legal strategy, 49 duke l.j. 1405, 1461 (2000). unable to hire attorneys the opportunity to have access to the courts.125 these efforts seek to transcend the normal legal processes available to all in theory by limiting access to justice in reality only to those who can afford to hire attorneys. when these efforts to limit access to the courts are successful, the rule of law is eroded. law school clinical programs play important roles in educating law students and in providing access to the courts for many in need. because law school clinics are places where law students often receive their first exposure to the practice of law, the clinic law office should be a model ethical law office, and the clinical faculty and other lawyers in those offices should model the highest ethical practice and norms of the legal profession. by evaluating potential cases on the legal merits and their pedagogical values, and by agreeing to represent clients even when a case may become controversial, clinical faculty and their programs can model the highest ideals of legal profession. political interference in clinical programs: lessons from the u.s. experience 103 duty bound? court possession schemes and clinical education carol boothby1 ‘at the heart of clinical legal education is a real client. it is the presence of a real client that distinguishes (it) both from traditional legal education ..and from practical legal skills training...’2 ‘my times at the rent court have been the most satisfying of the course. it has made me feel that i am really on my way to becoming a barrister and has given me much greater confidence in my advocacy skills’ northumbria bar student, july 2004 introduction the opportunity to take part in the local county court hearings of repossession cases arose around 3 years ago, the same time as i joined the university of northumbria as a solicitor/ tutor working in the student law office. i wanted to keep up my own hands-on skills as a solicitor, and so grasped this opportunity with enthusiasm. it has been an invaluable teaching tool as part of student’s experiences within the student law office, but only recently have i stopped to take stock of the nature and value of this experience, and to consider more carefully the aims and objectives, from the student law office point of view, in taking part in this. this paper looks at experiences with students at court repossession days, and the messages we are giving students when we expose them to this type of work – are we moving closer towards clinical legal education with a social justice agenda? and what do we get out of these court days as a student learning experience. clinical legal education with a reformist or social purpose? clinical legal education in both australia and the united states has always been imbued with the concept of the lawyer as having a public service role.3 in the united states, as early as 1968, when the ford foundation set up clepr (the council on legal education for professional 58 journal of clinical legal education august 2005 1 carol boothby is a senior lecturer and solicitor/ tutor in the student law office at northumbria university. 2 watterson, cavanagh and boersig “law school based public interest advocacy: an australian story” (2002) 2 international journal of clinical legal education 7. 3 judith dickson – “cle in the 21st century: still educating for service?” (2000) 1 international journal of clinical legal education 36. 59 responsibility), and provided funding to the value of $6 million dollars, this was focussed on introducing clinical legal education in law schools in a way that involved students in providing services to the poor. in australia, the growth of free services through community legal centres and clinics in the 1970’s offered an opportunity for clinical legal education programs to then integrate with them, and this model is characteristic of australian clinical programmes. the faculty of law at monash university in australia for example are well known for their clinical work and have extensive experience both in conjunction with generalist clinics and more recently, specialist clinics such flap (the family law assistance program.) however, in the uk there has not been an overt commitment to issues such as social reform, or pro bono activities. in the past there has been no requirement, or even specific encouragement from the professional bodies to promote student participation for the wider benefit of the community. this may be changing – sceptics may say as a result of the restrictions on the legal aid budget. with the onerous administration requirements, low levels of remuneration and demanding quality standards involved in gaining a franchise, many solicitors firms have felt unable to justify a continuing commitment to areas such as welfare benefits and housing. as a result, there have been warnings from solicitors that this has created ‘advice deserts’ where no specialist advice is available, leading many to challenge the reality of ‘access to justice’. in 2003, of the 421 bid zones used for community legal service contracting, 45% had no specialist housing law provider.4 but there are perhaps the winds of change blowing – the pro bono movement in the uk seems to be gathering momentum and, perhaps seeing the potential benefits offered by law clinics where there is input from academic establishments in terms of both staffing and funding. there is no over riding social lawyering agenda permeating the provision of clinical legal education in the uk, but rather a symbiotic one where diverse groups are coming together where there is mutual gain. taking the duty possession scheme as an example, the focus for us is still very much on the intellectual skills, and the student learning to be gained, with any spin off in terms of benefiting the needy being seen as incidental. duty possession schemes these are court-based free housing advice and representation schemes that aim to provide last minute help to homeowners and tenants who are facing repossession of their homes. they exist in around one-third of county courts. the growth of these schemes has been rapid, but ad hoc. they are normally staffed by local advice agencies and/or local solicitors, on a voluntary basis. there is no other provision because, even if the client qualifies for public funding (under the limited legal help scheme) this may not cover representation at court and they will not obtain a full legal aid certificate covering them for representation unless there is an arguable defence. in the majority of cases, arrears are owed, and there is no complete defence – it is usually more of a mitigating role, seeking to argue reasonableness, i.e. that it would be reasonable for the court to make a suspended possession order, on specific terms of rent plus a sum towards arrears, rather than an absolute possession order whereby the tenant has to leave their home, normally within 28 days. duty bound? court possession schemes and clinical education 4 [2003] legal action january, 9. how the scheme arose in newcastle in 2000/2001 the local community legal service sought bids for a court-based representation scheme. however, local housing advice groups and the few solicitors with housing franchises were concerned that the contract would have onerous requirements, in terms of attendance at court and administration, for potentially very small financial return. instead of this formalised scheme, local housing groups came together to provide their own rota of cover for the court dates, which are around once a fortnight. there was no direct funding for this – and the only financial incentive was the possibility of picking up clients who might then be eligible for limited funding under the legal help scheme. the scheme has run successfully since then, and a rota is circulated by e-mail well in advance of the court hearing dates, requesting volunteers. these volunteers are a mix of local law centres, citizens’ advice bureaux, and solicitors. interestingly the local branch of shelter, a national housing charity, declined to take part. at the newcastle upon tyne county court scheme, two rooms are normally set aside for interviewing, as normally two advisers attend and the court clerk asks every defendant whether they need free legal advice, in which case they are pointed in the direction of the advisers. in each list, which is a morning session running from 10 a.m. to 1 p.m., there will be between 60 and 90 cases listed, out of which only around a quarter are likely to attend, the rest being dealt with by the court on the papers alone. advisors normally deal with around 8 cases each, interviewing and then representing the client before the court. how the student law office is involved the student law office has a community legal service specialist quality mark in housing law. this recognises that a high standard of advice is available, as well as allowing the student law office to offer legal help funding to those who qualify financially.5 there are in excess of 120 students working within the law office. the students are grouped into “firms” of about six students, with each “firm” supervised by a practitioner member of staff. the law office takes on a huge range of different kinds of work, but two of the firms specialise in housing law. the students in these firms may or may not have covered housing law as an academic topic prior to starting in the law office, but the firms are supervised by staff with experience in housing law. these staff take part in the court duty representation scheme rota and during the academic year, are accompanied by small groups of these students. student involvement initially, the students attend essentially as observers. normally, only one or two student will attend with their supervisor. the court will normally allow students to sit in the public area if there are no objections from the parties. however, over the two years since this began, student involvement has increased to a level where this year, students carried out interviewing and advocacy for the first time, under close supervision. 60 journal of clinical legal education august 2005 5 in theory it also means that the law office can get paid for some of the work it does on these cases. in practice the number of claims for payment are small, and are outweighed by the sheer cost of administering the scheme. however the fact of having the quality marks is an indication that the law office can offer a high quality legal service – which is, for us, an important message to the public. lawyering in a microcosm attending possession hearings as part of the duty advisers scheme enables students to see many aspects of lawyering in a microcosm; it is a fast learning curve – clients are introduced to the adviser, and they are interviewed. this can be demanding, as clients often have little perception of the relevant parts of their case. the interview has to be closely controlled to focus in on the relevant and not to waste time on the irrelevant – as there is no time. the court will rarely allow additional time for instructions once the case has been called. any paperwork the client has managed to bring has to be scanned, digested and a decision made with the client about what realistic outcome there may be. brief representations are put together, to argue either for an adjournment, a suspended possession order, or for the case to be dismissed depending on the circumstances. sometimes it may be a case where we are suggesting that there is a defence (these are usually where there have been allegations of anti social behaviour breaching the tenancy) in which case directions need to be considered. the court setting is a formal courtroom, not the small informal chambers. if it is the local council as landlord, there is no opportunity to discuss or agree anything about the cases at the court door, as the council’s representative will remain in the court throughout. if it is a mixed list including housing associations, then there may be some opportunity for negotiation at the court door. after the hearing, the client is advised of the outcome, and a letter confirming this is sent out to them. we will also refer clients on to obtain debt or benefits advice where appropriate. skills developed? the intellectual skills developed in this environment are manifold – the ability to distinguish the relevant from the irrelevant, to identify issues through appropriate questioning, the ability to construct and present an appropriate argument. however, the wider learning these hearings encompass cannot be undervalued. ‘an understanding of the law is worth very little unless that understanding can be used respond to people’s needs’6 students come into contact with people from very different backgrounds, often struggling with multiple social problems relating to unemployment, illness, and frequently the frustration of an unresponsive benefits system. they soon realise that their learning to date has been only the first step towards becoming an effective lawyer. they begin to appreciate the complexity of their role – as suggested by professor hugh brayne, ‘good judges and good lawyers use a combination of legal knowledge, analytical powers, insights experience and understanding of human nature to make difficult decisions in a practical and wise way.’7 selecting cases – sink or swim? the prospect of someone being ordered to leave his or her home within 28 days is daunting. normally supervisors will represent those clients at high risk of being repossessed before the court, as this is placing considerable responsibility on the shoulders of students in this situation. this will however depend on the individual student and the amount of time we have had to 61 duty bound? court possession schemes and clinical education 6 “cle: bridging the gap between study and legal practice” jessica kaczmarek and jacquie mangan – (2002) 2 international journal of clinical legal education 86. 7 hugh brayne, ‘a case for getting law students engaged in the real thing – the challenge to the sabre tooth curriculum’ (2000) 34 the law teacher 17. 62 journal of clinical legal education august 2005 prepare. in other cases, if the level of arrears is low and there are good prospects of an adjournment on terms of rent plus a sum towards arrears, or a suspended order, the supervisor will assess the ability of the individual student, and decide if they should represent, discussing it with the student. i will normally sit beside the student in court to enable me to assist them if required. there is little time for discussion immediately after the hearing, but once the list is finished, we will discuss the cases we have dealt with. i will also ask the students to reflect on the experience at the next meeting with their firm. in some cases, clients will contact us before the hearing date, and in this situation, students have more time to prepare, and to get to grips with the issues. they often have to act quickly to gather information form the clients, try to negotiate with the landlord and chase up outstanding housing benefit to reduce outstanding arrears. a case study – success stories mrs s had lived in her council owned home for nearly 30 years. her adult son who had been living with her intermittently was convicted of a burglary offence and a minor drugs offence in the local area, and received a short jail sentence. the council, treating this as a breach of her tenancy, sought to evict mrs s, who was in poor health, and who was adamant that her son no longer lived with or even visited her. the council offered to agree a consent order based on a lifelong exclusion of the son from visiting the property. this was clearly unreasonable, and the slo student eventually negotiated an 11th hour consent order, based on a short period of exclusion of the son. the client represented in court by an slo student also argued successfully and vigorously against a costs order of over £1000 sought by the council, reducing this to the court issue fee of £130 only. in this case, the student met the client well before the hearing, took detailed instructions, carried out detailed research, negotiated with the very difficult opponent, redrafted the proposed consent order, attended the possession day hearing and explained the amendments before the court and argued against costs – therefore applying all five drain skills (drafting, research, advocacy, interviewing and negotiation) on which much emphasis has been placed as a cornerstone of the legal practice course. this student also experienced all the difficulties of assessing clients for legal aid and applying for a representation order from the community legal services – an eye-opener to someone unused to the vagaries of public funding. typical cases where students have assisted on the day have included refugees from the ivory coast who have been granted asylum but struggled to deal with the benefits system; tenants with learning difficulties who have been unable to interpret the correspondence warning them of the arrears problem; as well as those tenants who simply struggle to make ends meet and fail to prioritise their debts. a common pattern is that, as tenants move in and out of employment, the benefits system does not keep step, leading to a build up of arrears. students’ perspective all students, but perhaps particularly bar students, have grasped this opportunity enthusiastically. the law office is compulsory for bar and solicitor students on our four year exempting law degree, and this year for the first time we have allowed the lpc and freestanding bar students to join the slo.8 ‘it was a really good experience especially for us on the bvc course. it gave me a taste of what working life/pupillage would be....it can be quite stressful trying to retrieve all the relevant information so quickly. all in all, it was a fantastic experience.’ ‘i found the experience really exhilarating all three times. it is a very challenging forum to work in ...the difficulties are made up for by the thrill of representing real people in a real court ...fortunately i have never had a case where no absolute possession order was made, as i think i would have found this quite difficult to handle.’ ‘one thing which i did learn very quickly was to avoid confrontation with the judge as much as possible. one judge in particular was extremely combative at times and it was very difficult to resist getting into an argument with him. i had to learn some fast lessons in diplomacy and how to take hearings in my stride and not to take them personally. if i had a bad hearing early in the day, i could not let that interfere with the conduct of the rest of the hearings i was involved in that day.’ what is it about the court duty possession days that make this a special experience? repetition: there are a number of cases in short succession – so students can see the supervisor deal with one case, then if the supervisor feels it appropriate, the student can deal with the next client under the watchful eye of the supervisor, and hopefully build some confidence in their ability to deal with the court situation. a mentoring and collaborative relationship – not hierarchical: it is stressful – one cannot predict what might happen once in the courtroom – but i feel this changes the normal teaching dynamics where students are looking to please their teacher so that they get a high mark – here one huge step made by students is the realisation that this is not all about them – this is about what the skills they have learnt can do to help solve someone’s problem. they will then work with their supervisor who acts in a mentoring role rather than in a hierarchical ‘teacher is all knowing’ role. this transition for the student, in stepping from a self-centred role to an enabling, advising role is almost palpable to the supervisor, and it is very noticeable when with some students, the transition never seems to happen – so that they stay in that hinterland where the acquisition of knowledge seems enough, and they never seem to take responsibility for the 63 duty bound? court possession schemes and clinical education 8 the exempting law degree is so-called because, although an undergraduate law degree, it incorporates the requirements of the one year vocational-stage graduate programmes – and so exempts the students from further post-graduate study, enabling them to enter straight into the work-based training stages. the university also provides the free-standing vocational courses, the legal practice course (lpc) and bar vocational course (bvc): these are primarily taken by students who have taken an undergraduate law degree elsewhere and so are not exempted, or who have taken the law conversion course (cpe) having originally taken a degree in a non-law subject. case. however, the demands of the possession day are such that it can make it happen for many of the students – they can achieve that synthesis and analysis required to ‘take responsibility for the resolution of a potentially dynamic problem’.9 disadvantages? limited availability: the numbers of students able to participate is small – i took around 18 students over around 10 hearing dates – one bar student enjoyed it so much he filled in for anyone at short notice and as a result attended on three court dates, representing around 8 clients in total. staff resourcing: the work is intensive on staff time – the morning lasts around three hours, (but has on occasions lasted longer) of non-stop interviewing and advocacy, when only three students at most can accompany a supervisor. it is therefore very staff intensive. can all students cope? it is important that a judgement is made by the supervisor. if there is doubt that the student will be able to deal effectively with the situation before the court, the client must come first – we can’t allow clients to be sacrificed on the altar of student learning! usually, this is discussed with the student, and the supervisor will then represent. whilst the hearings don’t always run according to plan, it is very rare to have a situation where a client has been worse off as a result of being represented by a student, and in many cases, we have helped them to avoid a suspended order or worse. the future feedback from students helps to inform and improve the experience for future students. work to build up a picture of the benefits perceived by students has begun – the data collected at present through questionnaires is too small to provide a statistical data at present but the idea is to look at student experiences, and also to seek the views and feedback of the district judges before whom the supervisors and the students appear. in addition, feedback from clients would provide an insight into their experience of the service offered, and a suitable questionnaire is being prepared. the teacher hat or the solicitor hat? i am motivated by a combination of my own wish to provide a really worthwhile service to a sector of the population who otherwise would be left to fend for themselves in an intimidating court environment, and my belief that there are fantastic learning opportunities for students, who have to be able to synthesise the academic intellectual skills they have learnt with the practical requirements of the often stressful situation. it is hard to place a value on the insights they gain into another world – one of poverty, social deprivation and powerlessness. 64 journal of clinical legal education august 2005 9 a. boon, “making good lawyers – challenges to vocational legal education”, opening address, ukcle vocational teachers forum, 26 september 2001 at http://www.ukcle.ac.uk/resources/vtf/boon.html. students have expressed amazement at the human tragedy which unfolds in the telling of how the client, perhaps suffering an injury or loss of an elderly parent slips into a depression, loses their job and falls into the benefit system, where it is only too easy to fail to fill the necessary forms in, leading to arrears and inevitably the threat of eviction. as part of their assessment, students prepare a portfolio reflecting on the various aspects of their student law office work, and their comments and observations on their experiences in the possession courts are enlightening. in addition, students prepare an essay of 3500 words and a number have tackled topics related to and inspired by these experiences – one student (the one who dealt with the court case referred to earlier where a draconian order excluding the tenant’s son was sought) explored the topic of the role of alternative dispute resolution in housing and in particular in repossession cases. there are underlying concerns, and frustration, at the failure to properly fund legal services to provide advice and representation to those who need it. i am saddened by the falling away of the provisions of legal aid in many areas. expecting clients to represent themselves in a formal courtroom environment where their home is at stake can seem barbaric, particularly those who suffer mental illness, or where english is their second language. i do worry that there is an increasing reliance on pro bono work as a replacement for a properly funded system. the question has been posed by the monash clinicians, susan campbell and alan ray10: should we be filling the gap in public legal aid and letting the government off the hook? however, the possession days offer the combination of the opportunity to do good – to do some really worthwhile pro bono work, at the same time as offering students a unique opportunity for learning essential practical skills, and for many students, it may instil a sense of responsibility to assist not just the privileged and wealthy, but the less advantaged. however, in the final analysis, our current focus at northumbria is on the learning opportunities – the chance to consider the law in context, what richard grimes has described as a holistic approach. without doubt, there is the opportunity to move towards a deeper learning approach, based on the understanding and not just the acquisition of knowledge. to see students take these steps towards deeper learning before your very eyes is something i see as a privilege. 65 duty bound? court possession schemes and clinical education 10 susan campbell and alan ray, “specialist clinical legal education: an australian model” (2003) 3 international journal of clinical legal education 67. foreword this is the third edition of the international journal of clinical legal education and once again the journal has contributions from a wide geographic area. it is interesting and inspiring to hear of recent developments but i am always intrigued by the different historical bases for the development of clinical legal education across the world. in croatia, steven austermiller’s clinical work has emerged against a background of a struggling legal system with inexperienced personnel, whilst in australia jeff giddings’ article describes the development of clinical work as a provider of legal services to the poor. here in the uk the emphasis has been on the educational benefits the clinical approach brings to legal education. despite these differences the problems, conflicts and questions arising from the day to day maintenance of such programmes are surprisingly similar. philip iya’s article considers the seemingly universal conflict between the profession and the academy and the restrictions it places on legal education, whilst susan campbell, alan ray and jeff giddings touch on the problems of staffing, funding and developing new programmes all of which sound very familiar to me. this third edition is published shortly before our first international conference on clinical legal education to be held in london. i look forward to meeting some of our contributors and others interested in the field and hope that the conference can be established on a regular basis. some of the papers from the conference will be published in future editions of the journal. it seems to me that ongoing international debate on clinical legal education has a lot to sustain it. it is precisely the mixture of common ground and differences that make it so interesting and diverse. cath sylvester editor foreword 5 6 journal of clinical legal education june 2003 144 how to discover students’ talents and turn them into teaching judr� michal urban1 introduction some law students were born to teach� their professors’ job is to help them to discover their talents and turn them into teaching� this paper offers a description of the prague street law programme with an emphasis on the way of working with law students, who possess clear talent for teaching� students enrolling for street law clinics are students of law, who have obviously decided to study law rather than pedagogy� however, when being provided with an opportunity to teach, some law students prove to possess clear pedagogical talents, which they themselves might not realise� this article analyses czech experience regarding running street law clinics, whose aim goes beyond traditional aims of street law clinics, i�e� beyond putting theory into practice, looking at law through the eyes of the lay people, communicating legal matters to lay people, improving presentation skills and serving the community� in addition to these highly beneficial traditional aims of street law clinics, prague street law programme also seeks to create an environment, in which law students might realise their pedagogical talents, equip them with necessary methodology, find enjoyment in teaching and efficiently turn their talents into the teaching of law� the paper focuses in particular on the description of the way prague street law programme is designed to support the described goals and lists a number of concrete teaching methods, which have been employed to stimulate students’ pedagogical development, since these might serve as a source of inspiration for other clinicians�2 1 michal urban has received his master degree at faculty of law, charles university, prague, czech republic, as well as master degree at faculty of education, charles university, prague (specializing in teaching of social sciences and of english language and literature)� additionally, he has passed his doctoral exam and received the academic title of judr� he is currently carrying out his ph�d� research at prague’s faculty of law regarding legal consciousness and teaching law at secondary schools� he is a teacher of street law programme at prague’s faculty of law as well as a teacher of law at two prague grammar schools� 2 in this paper, the terms “faculty teacher” and “clinician” are used as synonyms� how to discover students’ talents and turn them into teaching 145 international journal of clinical legal education autumn 2011 standard street law clinic in prague since 2009, prague law faculty has run the most advanced street law programme in the czech republic�3 the fundamental part of the programme is a standard street law clinic, which each semester provides 15 law students with the experience of teaching law at czech public secondary schools� it is opened every semester for a new group of students from the third, fourth and fifth years�4 younger law students are not allowed to sign up, since they might not yet possess sufficient legal knowledge� each semester is divided into three equally long periods lasting one month� the first month of the semester is spent at the faculty and the faculty teacher introduces students to the basics of the teaching profession, students learn essential teaching principles, fundamental teaching tricks and they are also encouraged to identify elementary teaching mistakes� the second month is devoted to the teaching practice and law students spend it in participating prague secondary schools, in which they teach law to pupils aged from 14 and 19 years� the last month of the semester takes place at the faculty and students are required to reflect on their teaching experience and work out a portfolio, in which they summarize and evaluate their teaching experience, describe teaching methods and activities they were using and archive all their lesson plans in case they need them in the future� the aim of the standard street law clinic is similar to the aim of many other clinics, i�e� to make it possible for law students to use their theoretical knowledge of law in practice, learn more about the way lay people understand the law, practise explaining legal matters in a simplified but still true way to lay people, learn team cooperation, improve presentation skills, learn improvisation “on the spot” and eventually also serve the community by taking part in a clinic� although the standard street law clinic has been running only for two semesters, it has became rather popular and draws attention and active participation from many law students� upgraded street law clinic in reaction to the relative success of the standard street law clinic, prague law faculty decided to work with the most talented law students more permanently and establish a sequel to the standard street law clinic, which would engage students in a more complex way� therefore, an upgraded street law clinic has been introduced�5 in order to find appropriate law students for the clinic, the goal of the clinician, who is teaching the standard street law clinic, was expanded to include the following tasks: 1) identify those law students, who are undoubtedly good at teaching; 3 prague law school is a faculty of the charles university, the oldest university in central europe, founded in 1348� in comparison with the other three law schools located in today’s czech republic, which are part of the universities in brno, pilsen and olomouc, the prague law school tends to be more conservative, which includes a cautious approach to clinical legal education� 4 public law schools in the czech republic offer only masters programmes in law, no bachelor programme in law is available� the masters programme lasts for five years and is opened to all students, who have graduated from their secondary schools and passed the entrance exams� 5 in this paper, the term “standard street law clinic” is used for a basic, fundamental street law i clinic, whereas “upgraded street law clinic” for an extended version of a street law clinic opened only to students, who have graduated from the standard street law clinic� this upgraded street law clinic might as well be called street law ii in the faculty’s curriculum� not to confuse these terms, only the longer, more self-explanatory terms are used in the paper� how to discover students’ talents and turn them into teaching 146 2) create an environment in which such students may realise their talents to teach and help them equip themselves with necessary methodology; 3) let such students experience what an unforeseen satisfaction teaching may bring them; 4) and eventually prepare such conditions in which these talented students might continue teaching law even after standard street law clinic terminates, ideally even after their graduation from the law faculty�6 however ambitious the above described upgraded street law clinic might appear, all the necessary organizational steps have already been taken and since there is sufficient interest on the students’ side, the clinic came into existence in autumn 2010�7 since the upgraded street law clinic is currently being introduced at the prague law faculty, the paper may unfortunately not present the reader with detailed statistics, which would reveal more about the project’s outcome� these statistics will certainly be analysed in a future paper, in which the project will be evaluated and examples of best practice will be presented� as the topic of this paper is to describe the way prague street law clinics work with students with a talent for teaching, there now follows a description of the way of working, which enables the clinic to create a welcoming, motivating, working environment, in which students’ talents for teaching might flourish� the description is divided into six points, which are numbered and always introduced by a short headline� 1) no teaching without pre-school training� law students are not trained teachers, though some, as argued in this paper, possess a remarkable talent for teaching� therefore, during the preparatory month at law school,8 students are introduced to basic elements of the teaching profession, discuss various educational situations and learn concrete examples of activities they might use in schools� during this pre-school introduction to teaching, two ways to introduce students to the basics of pedagogy are used� first, students are often asked direct, targeted and concrete questions, which force them to think, make use of their past experience, imagine the described situations and develop their pedagogical instinct� examples of such questions are as follows: what do you do to keep order in the class?, how do you find out whether everybody has understood your instructions? how would you check that pupils have prepared their homework? each time, several concrete possible answers should be formulated to make sure that students are aware that each of the questions points to a “pedagogical situation”, which might be solved in number of ways� secondly, all students have to prepare micro teaching session� each student has to choose any relevant legal topic and prepare a five-minute long “lesson”, in which they present this topic to a mock class, which is role-played by the rest of the students in the seminar�9 in order to stimulate the atmosphere, students might be given certain roles in the class, such as a role of a “cooperating student”, “bored student”, “faultfinder” or “student in love with the teacher”� 6 we are undoubtedly talking about couple of lessons a week or a month, not full-time teaching, although even full-time teaching may not be fully excluded and some law students might theoretically consider teaching as the main part of their career, be it only for couple of years� 7 this paper had to be submitted in september 2010� 8 in this paper, the term “law school” refers to prague law faculty, unless otherwise specified in the text� 9 it might appear rather awkward to turn students of law into a class of 14 to 19 year-old-pupils, but as long as the faculty teacher does not fail to stress the play-like character of the activity, the whole roleplay usually is a very enjoyable activity, which most of the law students carry out with unpretentious pleasure� 147 international journal of clinical legal education autumn 2011 another alternative is to encourage students to design their own roles and ask them to pass their roles to any other student later on�10 despite being full of enjoyment, the activity has a clear educational aim, because it gives students basic feedback on their way of teaching and teaches students to observe their colleagues and provide them with feedback, be it praise or criticism� 2) keep it intensive� since the standard street law clinic is opened only for a relatively small number of students (up to 15) and lasts only for one semester, strong emphasis is put on the fact that the work with students is intensive� they are required to actively participate in seminars and to work for the whole teaching practice in teams of three, which stimulates cooperation and encourages all members of the team to participate� seminars take place every week, and when preparing their lessons, students have to meet or consult their plans several times a week� 3) teams of three: individual performance, yet shared responsibility� for most of the street law clinic, students work in teams of three, especially during the teaching practice� the aim is to provide them with somebody to consider their teaching ideas with, to stimulate peer cooperation and peer teaching and to reduce the role of the faculty teacher, who might otherwise find themselves in a role of the final authority, approving every detail of students’ lesson plans� the teacher requires a copy of each lesson plan before the lesson is taught, but their role is neither to design nor necessarily fully agree with every activity students have chosen to carry out� the responsibility for the lesson lies primarily on the law students, the teacher should intervene only in cases of “pedagogical emergencies”, e�g� when the whole lesson is collapsing, when the lesson plan is clearly badly drafted, or when students are about to touch an extremely sensitive issue either incompetently, or lacking important knowledge about the pupils�11 peer teaching and peer cooperation plays also a significant role in the reflection of each taught lesson� in order to secure relatively even participation of team members and encourage their activity, students are often given certain roles and take turns in playing them� for instance, during teaching practice, there are always two students who teach the lesson and one who sits at the back of the class and observes the class and his/her teaching colleagues� the job of the observing student is to take notes and once the lesson is over, provide his/her colleagues with precious feedback on their teaching, think about alternative ways of doing activities, of solving educational problems or of organizing the whole lesson�12 the division of roles has many benefits� apart from providing feedback to teaching colleagues, it equally teaches students to observe the class and “read” what happens or might have 10 it is of course very funny, when the card describing the role of a student in love with the teacher is received by someone who would never have thought of being in love with the person teaching at the moment� 11 in one class, for example, one pupil committed suicide a year before the teaching practice of law students� since the students were preparing a lesson on murder and euthanasia, they were informed about the background of the class� in another case, students planned a clearly boring lesson, which would lead to serious issues between the teaching students and pupils of the class� therefore, the clinician helped them to improve the lesson� otherwise, it is our belief that if students experience some failure during their teaching practice, it mostly stimulates their progress, especially if it happens in early stages of their teaching practice� 12 it certainly helps when observing students are expected to fill in an observation form (preferably a form, which enables them to enter their comments, not just tick boxes or numbers)� it not only encourages activity of the observer, but also represents a written piece of feedback, which may by given to the teaching colleagues, stored in their portfolios and available for future study or reflection� how to discover students’ talents and turn them into teaching 148 happened during a lesson� this helps students improve their own teaching abilities and reflect on their own teaching style and strategies�13 while working in teams of three, students are naturally forced to cooperate and divide their workload and responsibility for certain tasks, although the final responsibility for teaching the class is still shared by all members of the team� obviously, students tend to compete with each other and surpass the performance of other team members, which spices up the teaching atmosphere and stimulates better achievement for all involved� interestingly enough, some teams manage to cooperate so well that their team works almost professionally, which is mostly rewarded by a very positive response from pupils, who especially enjoy times when teaching students interact and elegantly pass the floor from one to the other student� 4) the teacher is always present – and always observing�14 since the street law clinic has been designed as an intensive one, law students are almost constantly observed when working with a class� for statutory reasons, the secondary-school teacher is always required to be present in the lesson�15 more importantly, in a majority of cases, there is also the faculty teacher present at the lessons taught by law students and each lesson is followed by a thorough, detailed analysis� an analysis of one lesson might take up to 60 minutes and represents a fundamental part of the street law clinic� it provides crucial feedback to the students and allows them to interact directly with the faculty teacher and clarify various educational and legal issues, which are not theoretical, but directly connected to students’ experience with law teaching� these analyses are an essential part of the street law clinic, since they directly motivate students to improve their performances and help to identify students’ strengths and weaknesses� additionally, the faculty teacher also makes sure that teaching methods used by law students are sufficiently interactive and motivating for pupils� the analysis usually starts by student-observer summarising the lesson, pointing out its good and bad sides and offering alternative views and solutions� in reaction to that, the teacher offers his/her view, comments on the feedback delivered by the observing student and asks questions regarding methodological issues, content of the lesson, alternative activities etc� in this way, the feedback is very useful for the students and offers them concrete pieces of advice to be used in preparation of future lessons� as will be described in the following point, students are required to 13 it is our experience that students mostly do not realise this� they primarily see themselves as observers, who help their teaching colleagues by being their “third eye”, which sees what the two normal eyes do not or could not see� in this regard, it is useful to encourage students to reflect on their role of the observer and let them formulate, in which ways it helps them in their own teaching� eventually, it is rather disputable who benefits from the observation more, the teaching, or the observing student� this corresponds with the experience of many mature teachers, who confirm that they improve their way of teaching by observing their colleagues� 14 when formulating this headline, the author was inspired by the proverb about the devil that never sleeps� 15 for safety reasons, law prohibits a law student, who has no legal contract concluded with the secondary school, to undertake full responsibility for the pupils and be the only adult person in the class� therefore, the school teacher, in whose class law students are teaching, retains legal responsibility for the pupils, which is also reflected by the fact that law students are not paid for the time spent in schools and secondary school teachers still receive salaries for lessons taught by “their” law students� nevertheless, the pay is not high and compensates the teachers for their time, in which they let law students teach in their classes or provide students with reflections on their teaching� another issue, which is not dealt with in this paper, is the degree of cooperation between the law students and secondary-school teachers� should the secondary-school teachers remain passive all the time, or should they co-teach the lessons with law 149 international journal of clinical legal education autumn 2011 improve from lesson to lesson and thorough, personalized feedback plays an important role in this� 5) thorough lesson-planning is a must� since students are given thorough feedback on their teaching, thorough and responsible planning for every lesson is demanded� most groups are easily motivated by the fact that they want to teach well, want to impress pupils and want to receive good comments from the faculty teacher� however, some students have to be motivated by more explicit formulation of what is necessary to be done till the next lesson� generally, students are well prepared for their classes� our overall experience is that some students devote themselves to teaching and some adopt a more relaxed approach, but satisfactory results and improvements are observable in all cases� as has been set out above, as a result of the personal treatment of all students and direct and intensive contact with the clinician, students are expected and required to improve from lesson to lesson� it seems to be fair to add that the majority of them really do� 6) teaching well in front of one class as well as in front of the whole world� teaching can hardly be done privately, without others being able to observe it and comment on it, especially since the street law clinic is designed to train possible future teachers of law� therefore, unlike some seminars at the law faculty, where students may remain passive or even anonymous throughout the whole semester, the street law clinic is not intended by far for passive and indifferent individuals� especially, since we are trying to spread the knowledge about the street law programme among the general public and intentionally decided to attract the attention of the media� more specifically, in the school year 2009/2010, we managed to publish several articles about the clinic in national newspapers and two reports regarding the clinic were broadcast by czech radio� furthermore, there was a tv report broadcast by czech television�16 the interest of the media understandably motivates the students, teaches them about the work of the media and enables them to experience how pleasant it is to read about yourself in a newspaper or watch yourself on public television� additionally, by finding our way into the public media we are trying to cast doubt on the influential slogan that good news is no news� we have understandably not managed to uproot the slogan, but we have managed to let part of the czech public know that street law clinic exists� after graduating from the basic street law clinic, upgraded street law clinic is offered to some of the students� the basic idea, on which the upgraded street law clinic is built, is to extend the time limit for the clinic, increase the responsibility and independence of the students and reduce the involvement of the teacher� therefore, the most talented and hard-working students are offered the opportunity to continue teaching under far more demanding circumstances� in the upgraded street law clinic, law students are given one whole class of pupils (i�e� around 30 pupils) to teach for one whole school year�17 this time, supervision from faculty teacher is only occasional and there is no secondary-school teacher present in the class, as was the case during the standard street law clinic� students? benefits and drawbacks of this street law model certainly deserve an analysis� 16 even though the report is in czech, some of the readers might appreciate it and therefore we insert its link below� it deals with a moot court the law faculty organized for pupils from one prague grammar school� it may be found in the internetaccessible czech tv archives, the report was broadcast as a part of the evening news, at about 20:19� the address is as follows: http://www�ct24� cz/vysilani/2010/05/09/210411020000509-20:00zpravy� 17 in the faculty’s curriculum, the upgraded street law clinic is designed for at least one semester of how to discover students’ talents and turn them into teaching 150 with this new, intensive street law clinic in mind, we may expand the previous six points and add five more points, which will more closely reveal the way we work with the students who are offered the opportunity to enrol into the upgraded street law clinic�18 7) teaching is not for everybody� as has been mentioned above, the standard street law clinic has many useful aims and is vastly beneficial, even for those students who will never attempt to teach law in the future� the upgraded street law clinic is, however, opened only for those graduates of the standard street law clinic, who are both skilled and hard-working enough to be offered a year-long cooperation with a secondary school� at this stage of the street law programme, it is only fair to admit that this form of clinical legal education is not for everybody and not any law faculty student would fulfil such a responsible commitment� since the role of both faculty and secondary school teacher is reduced and law students undertake, for instance, responsibility for pupils’ progress in the class, more caution is necessary� on the other hand, it should not encourage those students, who will be offered a place in the upgraded street law clinic, to consider themselves more than the rest of the law faculty� nevertheless, it is necessary for a clinician to be fully aware of the fact that such advanced teaching should not simply be offered to any student interested in teaching� 8) growing through responsibility: as has been suggested above, at this stage of teaching, law students are given one class of pupils (i�e� around 30) to teach two hours a week for the whole school year� it is their duty to plan the lessons, to design and realise a year-long plan for the course, to test students, to find ways to motivate pupils all the year around etc� the idea is that by graduating from the standard street law clinic, students possess the necessary pedagogical skills to find their way through the whole year on their own� understandably, even the upgraded street law clinic is still a law school subject, therefore supervision of the faculty teacher is required and the teacher will be open to any requests from the students� one of the abilities students should gain during this course is the ability to ask for help when necessary� nevertheless, the aim of the designer of this course was certainly not to put too heavy a burden on the shoulders of students, therefore students are expected to teach one class in a pair of two law students, which should keep the element of cooperation, peer teaching and team work in the clinic� 9) moot courts: while teaching, law students will be required to organize moot courts for their classes and teach certain legal topics in this way� the benefits of moot courts for law teaching have been analysed elsewhere and this paper will therefore not repeat this argument, only two comments will be made� firstly, most of the benefits of moot courts apply both to law school students and secondary school pupils� secondly, when organizing moot courts, an emphasis should be put on involvement of elements from outside of the class, i�e� professional judges and attorneys, teachers of the school or other classes from the school acting as the audience or improvised jury� consequently, moot courts should become events for the whole school and teaching� in reality, secondary schools often require students to teach one class for the whole school year� therefore, we use the length of one school year in this paper� 18 in terms of law, law students this time enter into an official part-time contract with secondary schools, which entrusts them with full responsibility for pupils during the lesson (therefore no secondary school teacher has to be present in the class) and entitles them to receive basic salary corresponding to the number of taught lessons� 151 international journal of clinical legal education autumn 2011 should attract the attention of the media and help spread knowledge about the project, which is an aim of the street law programme described above� 10) share what you have learned� while taking part in the upgraded street law clinic, students will be offered to participate in leading teaching practices of younger law students� after several months of teaching, older street law students19 should be prepared to allow younger students into their classes not only for observation, but also for their own teaching practices� as they were in a similar position not a long time ago, older street law students share common experience with their younger colleagues and their comments on younger students’ teaching and pieces of advice might therefore be especially enriching for their younger colleagues� understandably, the faculty teacher will have to guide and supervise the teaching practice anyway, but an active involvement of older street law students would no doubt ease the teacher’s task, not to mention having a positive educational impact on participants of the upgraded street law clinic� this fact, after all, corresponds with one of the mottos of all street law programmes, which goes as follows: what you hear, you forget, what you teach, you remember� 11) learn by writing� because the standard street law clinic has been introduced only recently, there is neither a course-book, nor a reader of relevant texts for street law students� our plan is to put such a reader together and invite students of the upgraded street law clinic to participate in preparation of the reader, be it in the form of proofreading, editing or identifying relevant texts� as has been mentioned above, the upgraded street law clinic was opened in autumn 2010, which prohibits the paper from presenting concrete statistical data, which would provide the reader with empirical support for this street law clinic� for the time being, there is only entrance data available, documenting the situation at the beginning of the project� it has been explained earlier that the upgraded street law clinic is opened only for the most successful graduates of the standard street law clinic, on average 5 out of 15 of the students� out of these 5, on average 4 accept the invitation for the clinic, which is considered a rather positive response, especially considering all other options in terms of legal practice� it became rather popular for law students in later years of their studies to start working in legal firms, which certainly pays far better than teaching law in public schools� however, taking part in the upgraded street law clinic depends also on the interest of secondary schools in accepting law students as teachers of law and allowing them to teach two lessons a week the whole year round� so far, we have managed to place two pairs of students in two different prague grammar schools and we are close to an agreement with another grammar school� clearly, the presented numbers are relatively small in comparison with the total number of students studying at the law faculty�20 bearing this fact in mind, it seems to be inevitable that street law clinics will continue to be offered as voluntary subjects, which may accept only a small percentage of law students� however, unlike in the past, prague street law clinics are now part of 19 older street law students are those students, who graduated from the standard street law clinic and participate on the upgraded street law clinic� 20 every year, prague law school welcomes from 650 to 800 new students into the first year of study� how to discover students’ talents and turn them into teaching 152 the official law school curriculum and students who enrol onto the clinics are granted credits for their participation�21 additionally, street law programme enjoys a relatively stable support from the faculty, and as the interest of both the law students and the secondary schools is rising, we are considering opening the standard street law clinic for up to 30 law students every semester in a year or two� in this context, the future of street law programme in prague appears to be rather promising� hopefully there will be another opportunity to inform the readers of the international journal of clinical legal education about the street law experience from prague� conclusions this paper has, in eleven concrete points, described the way the prague street law programme works with law students, who possess a clear talent for teaching� the points were chosen so that they would enable an insight into the prague street law programme and offer both information about prague street law clinics to those, who have been running similar projects, and inspiration for those, who might get inspired by prague street law experience� it has been explained that one of the programme’s aims is to establish a more permanent involvement of talented law students in law teaching� the first step in this process is to identify those law students, who would in future be good teachers of law� it has been highlighted that not all law students would make good teachers of law, even if they endeavoured to do so� the paper suggests that being a good teacher does not mean to excel in one specific area, but rather to possess a whole range of skills and abilities, including a basic talent for teaching, necessary rhetorical skills, determination to learn from mistakes, willingness to take teaching seriously and to carefully prepare for the classes, skills to cooperate with others, and the ability to identify and understand the needs, wishes and feelings of pupils�22 in terms of the paper’s main topic, it is important to point out that as only a small percentage of law students meet the above-described criteria or possess potential to develop these qualities, these students are precious indeed and deserve the special educational care of the teachers� the paper further suggests that the teacher’s role in the context of the described street law programme is not only to search for these students, but also to let them experience and realise their talent for teaching, help them enjoy teaching and experience the satisfaction teaching may bring to them� the enjoyment, together with sensitive guiding of the students by the faculty teacher, naturally motivates students to overcome standard teaching difficulties and prejudices against teaching, including the expectation that school pupils are unbearably naughty and uncooperative these days�23 the paper expresses the ambition of prague street law clinics to spur a more permanent involvement of law students in law teaching� the presumption of the street law programme is that some law students might continue with teaching even after they graduate from the upgraded street 21 in the school year 2009/2010, students received two credits, beginning from the school year 2010/2011, four credits will be awarded� on average, students need to gather 30 credits every semester, many of which they receive for compulsory subjects, which all students have to pass in order to proceed into the next year of study� 22 the mentioned skills and abilities might of course be expanded and some more might be added� 23 interestingly enough, all our street law students were positively surprised both by the behaviour and learning motivation of pupils� this should not suggest that all czech pupils are little angels, but that pupils at cooperating prague grammar schools are generally a pleasure 153 international journal of clinical legal education autumn 2011 law clinic and possibly also after their graduation from law school, be it only for couple of hours every month or semester� the paper assumes that not all street law students will be willing to give up teaching which they were deeply involved in, which they greatly enjoyed and which was earning them the respect of others, since these benefits might not be easily and adequately substituted by work in a legal office� nevertheless, the paper concludes that for presenting detailed empirical data the prague street law programme is still too young� reviewed article – teaching and learning in clinic “putting ‘disorienting moments’ at the centre of legal education” lawrence donnelly[footnoteref:1] [1: b.a., j.d. attorney at law (massachusetts). lecturer & director of clinical legal education, school of law, national university of ireland, galway. the author would welcome feedback on this article or more general thoughts on the topics discussed in it and can be contacted at larry.donnelly@nuigalway.ie. ] i. introduction in recent years, law schools throughout ireland have begun to embrace clinical legal education. irish law schools have been late to adopt what is regarded by many as “one of the most significant and successful pedagogical developments since langdell’s case method at the beginning of the twentieth century.”[footnoteref:2] yet clinical legal education programmes have continued to grow and expand apace over the past decade in ireland.[footnoteref:3] while still well behind their counterparts in places like the united states, united kingdom and australia, irish clinical programmes have achieved significant successes in a short period of time.[footnoteref:4] [2: richard wilson, “training for justice: the global reach of clinical legal education” 22 penn state international law review 421, 421 (2004).] [3: lawrence donnelly, “developing irish clinical legal education” in (thomas mohr and jennifer schweppe eds) 30 years of legal scholarship: the irish association of law teachers (thomson round hall, dublin 2011) 359, 360.] [4: lawrence donnelly, “clinical legal education in ireland: some transatlantic musings” 4 phoenix law review 7, 15-19 (2010).] interestingly, the mainstreaming of clinical legal education in ireland, once regarded as exotic and described in part ii, has coincided with the emergence of a rapidly proliferating body of what might be termed “crisis literature” on the state of legal education in recent years.[footnoteref:5] while much of this literature has emanated from the us, which has some of its own distinct problems to try and solve in the imminent future, legal educators around the world must confront complex challenges. a substantial portion of these challenges have been precipitated by the onward march of globalisation and technology.[footnoteref:6] [5: see, for example, brian tamanaha, failing law schools (university of chicago press, 2012); paul campos, “the crisis of the american law school” 46 university of michigan journal of law reform 177 (2012).] [6: see generally mary daly, “the structure of legal education and the legal profession: multidisciplinary practice, competition and globalization” 52 journal of legal education 480 (2002).] without delving into these quandaries – doing so could easily engender a rather lengthy tome (or tomes) – but mindful of the current, perhaps unprecedented, context, this article asks and endeavours to answer the following questions: what should we as legal academics seek to place at the heart of the educational experience for our students? and how can we do it? the article argues that the disorienting moment should be a central component of the optimal twenty-first century legal education and that clinical legal education programmes are the ideal conduits for bringing about disorienting moments for students. the article shares the reflections of students in the clinical programme in the school of law at the national university of ireland, galway. these reflections, it is submitted, establish that clinics are likely the best means of provoking the deeper questioning that flows from disorienting moments. furthermore, the students’ reflections, on their own, make a powerful case for why law schools should prioritise and resource clinical programmes. beforehand though, and in the interest of laying the foundation for these arguments, it is important to examine the progress of clinical legal education in ireland and to pose some inherently complex questions. ii. clinical legal education: defining the goals while specifically denominated clinical legal education programmes have only sprung up in ireland in the past fifteen years, a handful of irish legal academics, such as dr. (and later justice of the high court) bryan mcmahon and professor gerard quinn, who had studied law in the united states, sought to incorporate more practical elements into third level legal education in the preceding decades.[footnoteref:7] [7: lawrence donnelly, “developing irish clinical legal education” in (thomas mohr and jennifer schweppe eds) 30 years of legal scholarship: the irish association of law teachers (thomson round hall, dublin 2011) 359 et seq.] there has been for some time an element of opposition to and/or scepticism about the merits of teaching “practical law” in irish law schools.[footnoteref:8] given that law is an undergraduate subject and that graduates who wish to qualify as barristers and solicitors must complete a part-academic, part-professional training course administered by the professions before they are admitted to practice, some in the academy view any vocational instruction as beyond our collective remit.[footnoteref:9] that clinical legal education programmes have proliferated and thrived in other jurisdictions with similar frameworks for qualifying as lawyers has not diminished typically unspoken, yet undeniable, doubts about clinics in ireland.[footnoteref:10] moreover, the widespread diminution of law school autonomy, the absolute prioritisation of the doctoral degree above experience of law practice in recruiting legal academics and the scarcity of resources all militate against clinical legal education in ireland.[footnoteref:11] [8: lawrence donnelly, “clinical legal education in ireland: some transatlantic musings” 4 phoenix law review 7, 12 (2010).] [9: ibid at 11-12.] [10: ibid at 15.] [11: ibid at 9-15.] nonetheless, the move toward more practical legal education in irish law schools and the growth in clinical programmes, in particular, are unmistakable.[footnoteref:12] most irish law schools now have well-established clinical programmes – the vast majority are externship/placement-based clinics – and all stress the number of opportunities to develop practical skills on offer.[footnoteref:13] the fledgling and still informal irish clinical legal education association (iclea) was formed in 2013 and has organised major conferences and a series of less hidebound roundtable meetings, seminars and workshops.[footnoteref:14] iclea seeks to pool resources, draw upon international expertise and provide a vital forum for the small cohort of academics directing clinical programmes.[footnoteref:15] it also intends to promote the expansion and enhancement of clinical programmes in ireland and the interests of stakeholders of clinics in ireland.[footnoteref:16] [12: ibid at 15-19.] [13: lawrence donnelly, report, clinical legal education in ireland: progress and potential (free legal advice centres ltd/public interest law alliance, 2015) 8-33.] [14: ibid at 48.] [15: ibid at 48.] [16: ibid at 48.] the primary issues that irish clinical legal education and those leading this broad enterprise must fully confront in order to emulate other jurisdictions around the world and realise its full potential often surface at iclea events. these include constraints on resources and other complications which render moving from the now prevalent externship/placement clinics to the “live client” model; balancing inherently time-consuming and labour intensive clinical work with the pressure to undertake research, present papers and publish articles; the reality that irish clinical programmes are typically “sole trader” operations with few administrative or other supports; as well as the very nature and core objectives of clinical programmes.[footnoteref:17] should clinical legal education in ireland be purposed primarily to develop students’ practical skills, or to advance the public interest and equip students with a heightened social consciousness, or both?[footnoteref:18] [17: ibid at 45-52.] [18: ibid at 46.] considering these complex and hugely important matters, which are not amenable to ready consensus or swift resolution, necessarily entails some examination of those broader quandaries about the future legal education that are being pondered by colleagues almost everywhere law is taught. what are the ideal components of the optimal legal education experience for students in 2016? in an overarching sense, what should be its defining characteristics? and what role can clinical programmes play in this admittedly worrying time, when a lot of existential questions are being asked, in best preparing law students for their careers in an environment that has been changed utterly by technology and globalisation?[footnoteref:19] the scholarship provides some keen insights on these points. [19: see generally emily benfer and colleen shanahan, “educating the invincibles: strategies for teaching the millennial generation in law school” 20 clinical law review 1 (2013); anita bernstein, “on nourishing the curriculum with a transnational law lagniappe” 56 journal of legal education 578 (2006).] iii. the “disorienting moment” in a seminal article published in 1995, fran quigley persuasively argued that the “disorienting moment” should be central in legal education.[footnoteref:20] this is a term borrowed from adult learning theorist jack mezirow to explain the time when a learner’s “prior conceptions of social reality and justice are unable to explain the clients’ situations” in a clinical legal education programme.[footnoteref:21] stated another way: [20: fran quigley, “seizing the disorienting moment: adult learning theory and the teaching of social justice in law school clinics” 2 clinical law review 37 (1995).] [21: ibid at 46. see jack mezirow, “how critical reflection triggers transformative learning” in jack mezirow, et al (eds), fostering critical thinking in adulthood: a guide to transformative and emancipatory learning 1 (jossey bass publishers 1990). see also sarah o’rourke schrup, “the clinical divide: overcoming barriers to collaboration between clinics and legal writing programs” 14 clinical law review 301, 310 (2007).] “adult learning theory maintains that when a learner begins describing an experience with the phrase, ‘i just couldn’t believe it when i saw…,’ an opportunity for significant learning has been opened. the phenomenon is called the ‘disorienting moment,’ when the learner confronts an experience that is disorienting or even disturbing because the experience cannot be easily explained by reference to the learner’s prior understanding – referred to in learning theory as ‘meaning schemes’ – of how the world works.”[footnoteref:22] [22: fran quigley, “seizing the disorienting moment: adult learning theory and the teaching of social justice in law school clinics” 2 clinical law review 37, 51 (1995).] much of students’ usual experience of legal education, however, runs against their being thrust into such disorienting moments. students, particularly in irish law schools, often learn passively.[footnoteref:23] they learn “through reading and digesting a large body of judicial decisions, articles and books and then disgorging it.”[footnoteref:24] in lecture theatres or classrooms, a student may become “a mere recipient of the professor’s teaching” who “yields to the professor an ability to express personal thoughts and to criticize the message taught.”[footnoteref:25] this can have the unfortunate – and some would say tragic – consequence that “students learn how to think like lawyers by adopting an emotionally remote, morally neutral approach to human problems and social issues, distancing themselves from the sentiments and suffering of others, avoiding emotional engagement with clients and their causes, and withholding moral judgment.”[footnoteref:26] [23: see generally yvonne daly and noelle higgins, “the place and efficacy of simulations in legal education: a preliminary examination” 3 all ireland journal of teaching and learning in higher education 58.1 (2011). ] [24: jane aiken, “the clinical mission of justice readiness” 32 boston college journal of law & social justice 231, 235 (2012).] [25: ibid at 235.] [26: ibid at 236.] but clinical offerings in law school curricula take place in a vastly different arena and in a context that is poles apart. for instance, one criminal law professor recounts how her experiment in bringing first year law students to court for the day has turned into an invaluable asset for her as a teacher.[footnoteref:27] she notes that students’ emotions “range from excited to scared, bored to curious” and is invariably struck by the gulf between what they expect to happen and what actually happens in a courtroom.[footnoteref:28] although they watch proceedings that involve some various serious crimes, they are also exposed to “the steadiness of the seemingly mundane” which “is an important revelation for some students.”[footnoteref:29] [27: emily hughes, “taking first-year students to court: disorienting moments as catalysts for change” 28 washington university journal of law & policy 11 (2008).] [28: ibid at 21.] [29: ibid at 22.] these have included seeing a black teenager sentenced to spend two days in jail because he was apprehended when attempting to avoid paying a public transit fare, parents who were charged with felonies for falling behind in child support payments and a young mother facing a second-degree robbery charge for brushing against a security guard when trying to shoplift a vcr.[footnoteref:30] while the elements of both serious and relatively non-serious crimes that the students have learned from their reading and in classes are central in the disposition of these matters, witnessing the human element that plays an equally central role in the administration of justice adds another entire dimension to the learning experience. and clinical or practically-oriented instruction – whether or not it is the “live client” model – is the ideal vehicle for supplementing theory with reality. [30: ibid at 21.] of course, upper level, well-resourced clinics have a unique capacity to engender disorienting moments that give law students serious pause for thought and reflection. for example, one final year law student in a clinic, authorised to represent indigent clients under the applicable state rules, acted for a client in a domestic violence hearing and won a protective order for her client following a withering cross-examination.[footnoteref:31] as the student celebrated the outcome, her clinical supervisor questioned if she was at all troubled by what had happened and how it happened.[footnoteref:32] when she responded in the negative, the supervisor reminded her that the individual she had successfully “destroyed” on the witness stand had no legal representation, nor did anything in the applicable statutes require that he be provided with a lawyer.[footnoteref:33] and as a result of the hearing, he lost all rights of access to his children for the time being and would be arrested if he attempted to make contact with them.[footnoteref:34] yet “[w]ithout personal reflection and ethical challenges in law school, law students do not have the opportunity to face the moral dilemmas critical to moral development.”[footnoteref:35] here, again, clinic has provided such an opportunity in a way that traditional pedagogy simply cannot. [31: jane aiken, “the clinical mission of justice readiness” 32 boston college journal of law & social justice 231, 240 (2012).] [32: ibid at 240.] [33: ibid at 240.] [34: ibid at 240.] [35: subha dhanaraj, “making lawyers good people: possibility or pipedream” 28 fordham urban law journal 2037, 2067 (2001) citing joseph reimer, et al, promoting moral growth (1979) 40-42.] iv. externship clinics and disorienting moments for galway law students while disorienting moments occur frequently, and for obvious reasons, in “live client” clinics, they also transpire in externship or placement clinics. as one externship director notes: “[a]n externship program centered on the development of professional identity and values is a pedagogical device that law schools can employ to meet this goal. an externship is a type of clinical experience in which a student works for academic credit in a legal setting outside the law school under the supervision of an attorney and also attends a related seminar class at the law school. this combination of work experiences in an actual practice setting and guided reflection on those experiences in the seminar provides students with an ideal opportunity to explore the moral, ethical, and professional dilemmas that lawyers regularly encounter.”[footnoteref:36] [36: kelly terry, “externships: a signature pedagogy for the apprenticeship of professional identity and purpose” 59 journal of legal education 240, 243 (2009).] the fact that students are a significant step removed from an academic supervisor only heightens the extent to which they can grow as putative legal practitioners, and as people.[footnoteref:37] they must exercise “their own professional judgment” in all the varied aspects of law practice.[footnoteref:38] this distance from their academic supervisor also facilitates wider ranging and more open and honest student reflection both in journals and seminars – a vital element in the structure of any externship clinic.[footnoteref:39] [37: ibid at 255. ] [38: ibid at 255.] [39: lisa lerman, “professional and ethical issues in legal externships: fostering commitment to public service” 67 fordham law review 2295, 2296-2297 (1999). ] moreover, externships are ideally situated to ensure that students attain a broader perspective on the law and the legal system – “to examine legal doctrine in the context of societal problems, apply jurisprudential and other philosophical considerations to the practice of law, and compare and critique legal systems.”[footnoteref:40] they can discuss the application of law and the merits or shortcomings of the legal system with various stakeholders.[footnoteref:41] and their time spent on placement can bring abstract theory to life in a way that absorbing material in a library or classroom setting cannot.[footnoteref:42] in sum, “while a criminal law professor may teach the concept of mens rea, and a clinical professor may teach the subtleties of opening argument, the externship professor may have the students address the fairness of our criminal justice system from their experiential perspective.”[footnoteref:43] [40: robert seibel and linda morton, “field placement programs: practices, problems and possibilities” 2 clinical law review 413, 420 (1996).] [41: ibid at 420.] [42: ibid at 420.] [43: ibid at 420. see also harriet katz, “the past and future of externship scholarship” 23 clinical law review 397, 400-401 (2016). ] the following excerpts from reflective essays written by galway law students in recent years are proof positive of observations made both in the recent scholarship on externships and in quigley’s decades old article on the capacity of clinics to create disorienting moments. the thoughts – and indeed the all around thoughtfulness – expressed here are from students who were engaged in placements within the broad public interest and social justice sphere. “what really struck me about working in [the firm] was the moral challenge of the work i was doing. while it seems quite clichéd, working in criminal defence involves the constant balancing of justice and due process. while representing a person who has been convicted of multiple murders, for example, is quite morally challenging and often looked down on by the general public, it is a job that needs to be done all the same i our legal system is to ensure that every person who enters the system is given a fair trial and afforded all the rights that they are entitled to. the moral dilemma alluded to and played up in many television series and movies is real.”[footnoteref:44] [44: student reflective essay (on file with author).] the student’s points about the law and morality are fascinating. while there is a strong systemic justification for all accused persons to have a vigorous legal defence, in the “real world” it nonetheless presents an array of moral challenges that the student identifies here. “the emotions i felt whilst observing this [murder] case were greater than the emotions i felt while reading case files at the office or for exam purposes. this goes to show how important placements are when studying law at university. it is never enough to read about it and achieve firsts in every exam. that is not sufficient to prepare any law student for life as a lawyer. the reality is that there are so many aspects of a case or in the trial process that are not mentioned in text books or stated by lecturers.”[footnoteref:45] [45: student reflective essay (on file with author).] in short, the study of law and its practice are fundamentally different. the human element encountered in litigating cases of all types is often crucial to their resolution and cannot be sufficiently accounted for when reading case law at a distance. “the event [conference] also demonstrated the passion and enthusiasm of the volunteers and people who are involved in ngos have. it has highlighted the problems of inequality in our country and made me appreciate how influential the work of ngos in our society is. the experience was a high point of my work that proved to be extremely rewarding. being able to hear the struggles of people who are experiencing injustices as a result of deficiencies in our legal system is something that cannot be offered in a classroom setting. the event clarified that one of the main purposes of law is to help the marginalised people in society.”[footnoteref:46] [46: student reflective essay (on file with author).] as well as highlighting the invaluable work ngos do, usually on a shoestring budget, the student’s time spent helping to organise a conference demonstrated to her the importance and utility of gathering together regularly to share experiences, grow networks and gain insights. the law does not operate in a vacuum; those who work with it can lose out if they don’t engage with stakeholders with ample knowledge and wide-ranging outlooks. “within both of these places [the children’s and family courts] what is noteworthy is that pragmatism and common sense often override strict application of law as it is written down. for instance, often the types of persons you deal with in such settings are quite vulnerable individuals. in this light, and particularly in the context of children who find themselves before the courts having committed breaches of law, they are afforded sufficient leniency with regard to potential punitive sanctions. the vulnerability of these persons is often considered as a significant factor in determining the outcome of their particular case, as often, due to their own circumstances it would be unjust itself to severely punish them. in contrast, a classroom debate over how to deal with a young person, particularly one who has relapsed into crime on a few occasions and caused inconvenience to someone else will often produce a ‘logical’ result in the light of the crime and relevant legislation…judges, however, often tend to look to the bigger picture, measuring the weight of the inconvenience concerned to the injured party and the circumstances which led the accused to act in a manner inconsistent with the law.”[footnoteref:47] [47: student reflective essay (on file with author).] again, that the administration of justice is ultimately a very human – warts and all – enterprise is now manifest to this student. moreover, he recognises that the tabloid headlines about “out of control judges” and “criminals going scot free” are misplaced in most instances. compassion and discretion are the lifeblood of the system and, in reality, most men and women would prefer judges who strive to be truly just in executing their vital duties. “those [lawyers] who volunteer their time and skills are particularly inspirational. it is important that financial gain is not the only motivation. a willingness to help others shows that a person is truly passionate about what they do. legal information, and especially assistance in understanding the information, is something which everyone should have access to. it is extremely difficult for someone who does not have a legal background to understand legislation or directives and to interpret their rights. many visitors [to a clinic] also had problems with language. in a negative respect, it was disheartening to hear stories from a number of individuals who felt they were taken advantage of by solicitors. a number of complaints were made by vulnerable immigrants who appear to have been overcharged. when considering the prospect of entering into a profession, one is filled with prospects and ideals; it is appalling to consider that sometimes these ideals are not implemented in practice.”[footnoteref:48] [48: student reflective essay (on file with author).] the first lesson from this placement is that there remains a gulf between vulnerable people and lawyers. the second is more complex. certainly, some lawyers are unscrupulous and that, sadly, will forever be true. but there can be two very different accounts of the same lawyer-client relationship. and sometimes, the truth is in the middle. this is a very small sampling of literally hundreds of reflections shared by students in seminars and in essays over the decade that the clinical placement programme has been running in galway. it is indicative of the reality that the vast majority of the deepest, most soul searching, intellectually and otherwise self aware and, frankly, profound comments offered by students have come from those who worked in an environment where the limits of the law and legal system and the struggles of so many men, women and children are laid bare every day. this is not to say that the experiences, and related contemplation, of students who have worked in commercial or other fields are not valuable. they are. it is to say – or more accurately, to argue – that clinics are best when, in addition to aiding in the development of crucial practical skills, they “are intensely aware of the mission of lawyers in serving justice, and in representing the weak against the strong” and when, as a consequence, almost every moment can be a disorienting one.[footnoteref:49] [49: richard wilson, “western europe: last holdout in the global acceptance of clinical legal education” 10 german law journal 823, 823 (2009).] v. conclusion: final thoughts and further questions the benefits that have accrued to law students in galway who have participated in an externship-based clinic are manifest. in addition to fulfilling the pedagogical goals of the programme – “learning by doing,” intertwining theory with practice and heightening a collective consciousness of inequality and injustice chief among them – graduates who have taken the clinical module repeatedly indicate that their initial offers of employment stem in large part from having had practical experience of the law and legal system under the rubric of a structured, supervised, highly regarded programme of clinical legal education. correspondence and other informal contact with these employers suggest strongly that it is their cognisance of the fact that clinic students will have encountered far more disorienting moments than those who sat beside them in classrooms that captures their attention when sifting through a pile of cvs. that’s even if the law firm partner or ngo director doesn’t label these critical learning opportunities as such and has never heard of fran quigley’s article. graduates who have previously “been around the block” once or twice and have had to think about what they were confronted by afterward are more attractive candidates for obvious reasons. the practice of law, which involves a significant amount of drudgery and, at times, precious little engagement with either big or small legal issues, is quite unlike its study in many ways.[footnoteref:50] at every stage and in almost every context, it is still a reflection of our shared humanity. clinics, and more specifically, the disorienting moments they produce, showcase reality, not fantasy. as such, they are arguably core, not complimentary, to the study of a discipline that is both academic and vocational in nature – and that holds true regardless of whether a graduate goes on to qualify professionally as a lawyer or not. [50: see generally timothy floyd and kendall kerew, “marking the path from law student to lawyer: using field placement courses to facilitate the deliberate exploration of professional identity and purpose” 68 mercer law review 767 (2017).] while disorienting moments are crucial to getting a “good” legal education in 2017, there are challenges to legal education and legal educators of a new sort. indeed, the very nature of law practice is changing rapidly and is already very different to what it was just a quarter of a century ago.[footnoteref:51] in a time where legal careers spanning multiple jurisdictions and even different hemispheres will be the norm, not the exception, and where technology can minimise human interaction, reduce the need for as many lawyers, accelerate the rate at which the “wheels of justice” spin and engender new and perhaps unrealistic expectations from clients – or consumers as they might regard themselves in future – are disorienting moments of the sort outlined above as necessary? [51: stephen sieberson, alex fayad, carola cintrón-arroyo, “changing times in the legal profession – a survey of practicing lawyers” 50 creighton law review 443,443-445 (2017).] the answer is yes. although some disorienting moments may be different to what was envisaged when fran quigley wrote in 1995, they should forever remain at the heart of legal education. for instance, they can take place when a student is forced to grapple with technological innovations that lie beyond anything she has been exposed to before and are, to some extent, at variance with much of what she has learned in law school about substantive and procedural law. moreover, they can occur where a legal dispute involves multiple jurisdictions and wholly different legal and broader cultural contexts in which some of the student’s most fundamental assumptions about life and humanity may be turned upside down. crucially, and contrary to what is argued trenchantly by some observers, the twin forces of technology and globalisation don’t necessarily exacerbate the problems of the less well off; they have unique capacities to ameliorate them, too. it is now imperative that law students are introduced to and comprehend this brave new world. in the end, the disorienting moment – where a student asks (or shrieks) “why?” and can’t even attempt to answer without having to then question everything he has always presumed to be true – will always be indispensable to providing a worthy legal education. those of us in the broad church that is the global clinical legal education movement should be ever mindful that we are driving the ideal vehicles to create such pivotal instants in ever-expanding ways and push ourselves and our students accordingly. as quigley concludes, “[t]hese future policy-makers clearly deserve such enlightened instruction. a just society clearly demands it.”[footnoteref:52] [52: fran quigley, “seizing the disorienting moment: adult learning theory and the teaching of social justice in law school clinics” 2 clinical law review 37, 72 (1995). ] 97 specialist clinical legal education: an australian model 67 specialist clinical legal education: an australian model susan campbell* and alan ray** clinical legal education in australia traditionally has been based in generalist clinics, where the client and caseload intake is limited primarily by the financial means of clients rather than by the legal subject matter of their problems. the breadth and variety of legal problems which confront clinic students provide insight into and understanding of the operation of the legal system at the grass roots and the legal issues raised rarely seem to reflect directly the law the students have learnt in the classroom. in recent years, for both educational and political reasons, australian universities have begun to develop specialised clinics, serving clients with problems in a particular area of law. this article describes the operation of monash’s specialised family law clinic and considers the factors which, in the monash experience, have combined to ensure its stability and recognition, within the university and in the broader political context. in 1996 monash in conjunction with springvale legal service (the community legal service which takes the majority of monash clinical students) proposed the development of a series of specialised clinics1. the objective is to provide students who have completed the general clinical undergraduate subject with the opportunity to develop the skills they have learnt to a more sophisticated level and to gain a deeper understanding of the operation of the legal system through immersion in a particular area of law. the first monash/springvale specialised clinic began in 1996, jointly with the south east centre against sexual assault, providing legal advice and assistance to victims of sexual assault2. the second, the forensic psychology and sentencing clinic, operated jointly with students from the monash department of forensic psychology to provide psychological assessments and the preparation of detailed sentencing material for clients charged with relatively serious criminal offences. * susan campbell, professorial fellow in legal practice, faculty of law, monash university, australia. ** alan ray, lecturer in law, faculty of law, monash university, australia. 1 evans, a. “specialised clinical legal education begins in australia” (1996) 21(2) alternative law journal 79 2 evans, a, “specialised clinical legal education begins in australia” (1996) 21(2) alternative law journal 79 68 journal of clinical legal education june 2003 the third, and so far the most “successful” (for reasons to be discussed below) is the family law assistance program, a clinic assisting unrepresented family law clients. background in 1996 the newly elected conservative federal government announced a program of reduction in legal aid funding. community legal centres, including clinics, began to notice increasing numbers of family law litigants who had either exhausted their limited entitlement to legal aid or who had been denied aid from the outset3. the government, which has constitutional responsibility for family law, resisted growing calls for the restoration of legal aid funding but sought to institute a range of alternative measures which might be seen to solve the problem. one such measure was the discovery by the government of clinical legal education, with its use of students as “free labour” and its connection with universities, which might be expected to contribute to the costs of programs. in its 1998 budget the government allocated funding for new clinical legal education projects “to maximise service delivery to disadvantaged clients and co-operation with universities”4. monash therefore applied under the new program to establish a clinic conducting self-help workshops to assist family law clients without representation either by a private practitioner or through legal aid5. the application focussed on the conduct of workshops to encourage in clients a philosophy of self-help and mutual support6. the proposal also envisaged a website to extend advice and assistance with the completion of family law documents to rural and regional clients7. the project was one of four to receive funding8 and the clinic began operation in mid-1999. staffing consists of one fulltime solicitor/supervisor position and one full time administrative position, supported by final year law students. currently the clinic is fortunate to have two extremely experienced family lawyers sharing the supervisor role. the administrative position has come to be held by students from the program, whose personal experience of day to day operations and of the needs of incoming students makes them ideal administrators. the university contributes a range of infrastructure costs. 3 for a discussion of the new legal aid arrangements and whether the increase in unrepresented litigants can be ascribed to them, see family law council, litigants in person – a report to the attorney-general, august 2000, at 1.18 – 1.36, and reports referred to therein. 4 commonwealth attorney-general, media release, “community legal services expanded” 3 may 1998. for a detailed discussion of the political context of the government’s decision, see giddings, j & hook, b “the tyranny of distance: clinical legal education in ‘the bush’” (2002) international journal of clinical legal education 64. 5 earlier in 1998 monash had put a submission to the legal aid and family services branch of the attorneygeneral’s department for funding to develop self-help kits for unrepresented family law litigants. 6 monash and springvale legal service had for some years used the workshop format to assist clients with child support claims. 7 see giddings, j & hook, b, “the tyranny of distance: clinical legal education in ‘the bush’” (2002) international journal of clinical legal education 64 for a detailed discussion of the social and political significance of rural and regional clients. however, with the additional demand on resources resulting from the family court support program the web-site proposal was abandoned. 8 of the three other funded projects, two were specialised clinics: a child support/family law clinic at griffith university, queensland and an employment law clinic at university of new south wales/kingsford legal centre. the fourth was the establishment of a new generalist clinic at murdoch university, western australia. specialist clinical legal education: an australian model 69 the family law assistance program (flap) the new clinic operates from monash-oakleigh legal service (mols), a community legal centre conducted by the university on campus9. while initially the concept of workshops, with up to four clients participating in each, was followed, it quickly became clear that clients’ individual needs (including language needs) are so diverse, and their level of anxiety generally so high that workshops were simply not effective and were liable to frustrate clients rather than to empower them. the clinic therefore reverted to the individual interview model followed in the generalist clinics. the educational model is also the same as that in monash generalist clinics: a student interviews the client without the supervisor present, obtains instructions, then discusses the issues privately with the supervisor in his/her office. the student then returns to the client with initial advice. if, as is often the case, the client needs documents to be prepared, the student may sit down with the client at a computer (which is equipped with the full range of family court document templates) and assist the client to complete the relevant documents. in cases where the client does not have the language or literacy skills to complete documents even with assistance, the student will complete them. in all cases the supervisor checks the final documents before the client signs and/or swears them. the program does not act as solicitor on the record for clients; they continue to conduct their matter in their own name. thus, once documents have been completed, the client is given detailed advice on filing and service and on the “litigation pathway” to be followed. another appointment will be fixed at the appropriate stage of that pathway so that the client can obtain advice on the next steps, discuss any offer of settlement or prepare an appearance. statistics flap sees on average 8 clients per session with 4 sessions per week. allowing for university holidays and an occasional closure to allow staff to catch up on paperwork and government reporting obligations, this means that the program sees approximately 1550 clients per year. evaluation no formal evaluation of flap has been conducted. client demand and referrals from the court indicate that stakeholders regard it as providing an invaluable service. 9 the decision was made to establish the new clinic at monash-oakleigh legal service, rather than at springvale legal service, for reasons of space. a small amount of project funding was used to expand mols premises to add a dedicated workroom and a staff office for the new program. 70 journal of clinical legal education june 2003 the family court support program (fcsp) shortly after its inception, flap became involved in an unexpected but significant extension of its work. the local registry of the family court10 has the highest percentage of unrepresented litigants of any registry in australia11. to discuss ways of addressing the inherent inequalities in this situation and assisting the court to operate efficiently, registry staff met with several community agencies, including flap, and the outcome was the family court support program (fcsp). this adopts a team-based approach to provide a range of services in the one location. the court staff ensure, as far as the listing system will permit, that all matters involving unrepresented litigants are listed on a monday. the flap solicitor attends with a number of students, as does a duty solicitor from victoria legal aid and staff of the court network (a volunteer group which provides non-legal advice and support to unrepresented litigants). (in the early days of the fcsp the local community-based mediation centre also attended, with the intention that mediations could be conducted “on the spot”. however this proved to be an inefficient use of limited mediation staff resources and the centre’s participation in the program ceased.) as each litigant arrives at court, they are asked by a court official if they need legal advice. if so, the litigant is interviewed by a student and, after consultation with the supervisor, provided with advice and, where needed, assistance with the preparation of documents. where the opposing party is also at court, the student will discuss possible resolution of the issues with the client, again after consultation with the supervisor, and with the client’s instructions negotiate with the opposing party or their representative. often the opposing party is also unrepresented and she/he can obtain advice from the victoria legal aid duty solicitor, thus avoiding the situation which would otherwise occur of “first come/first served”, where the party who happens to arrive at court first can effectively corner the provision of legal advice and prevent the opposing party from obtaining access to such advice. if a settlement cannot be reached, the client goes away equipped with a more detailed understanding of the procedure to follow and with the reassurance that they can seek the advice of the program on their next day in court. if settlement between the parties can be agreed upon, the student will draft consent orders and appear before the relevant judicial officer to obtain approval of such orders. the fact that the matter can be finalised on the day is one of the reasons why the program is valued so highly by both clients and the court; if clients were forced either to appear for themselves or to return to court on another occasion with representation, the sense of mutual achievement in reaching an agreement would be diminished. indeed many parties might use the time spent waiting for the next court date to change their mind about settlement. however it might be thought highly unusual that students actually appear in court on behalf of clients. 10 at dandenong in the outer suburbs of melbourne. its catchment area includes higher than average levels of unemployment and language disadvantage 11 40% across the three main categories of applications filed – family court of australia, dandenong registry, internal working paper, 1999. specialist clinical legal education: an australian model 71 students appearing in court in all australian jurisdictions, only admitted practitioners have the right to represent a litigant. but every court has an inherent discretion to control its own proceedings and, as part of that discretion, to permit unqualified persons to appear on behalf of a litigant12. in the higher courts such leave is rarely granted13. however for some years monash has operated a “student appearance program” as part of its generalist clinics. this program arose out of the increasing numbers of clients attending the clinics who on any view needed legal representation in minor criminal or family law matters but who did not qualify for legal aid to pay for such representation. monash therefore put a proposal, initially to the magistrates court (the lowest court in the hierarchy in victoria) and subsequently to the family court, that clinic students should be permitted to represent their clients in certain categories of matters before these courts. it is indicative of the concern felt by both courts about the numbers of unrepresented litigants that members of both courts generally welcomed the proposal. as a result, in the ten years since this program began, monash students have represented more than 100 clients per year, largely in pleas of guilty in summary criminal matters and in divorces and uncontested family law applications, particularly where the client is of non-english-speaking background. when the family court support program was established, therefore, there was simply no debate about the role of students in representing clients before the family court. statistics the fcsp sees on average 20 clients per day for approximately 49 weeks per year. evaluation a preliminary evaluation of the fcsp was conducted jointly by the court and monash after the first 8 months of operation14. broadly, the objectives of the project were to evaluate: whether matters in which litigants were assisted by the fcsp were resolved in a more timely and cost effective way than those not involving fcsp assistance; whether clients were generally satisfied with the services provided by the fcsp; and whether the judicial officers at the registry were likewise generally satisfied. the quantitative sections of the research, designed to assess whether the fcsp contributed to the “efficiency” of the court process, were inconclusive. while fcsp clients made fewer appearances in court and took a shorter time to conclude their matter from filing to resolution, the difference between fcsp clients and others was not statistically significant. however the results of the qualitative research, based on questionnaires completed by clients and interviews with judicial officers, showed overwhelming support by both groups. 12 o’toole v scott [1965] ac 939 (privy council) 13 damjanovic v maley [2002] nswca 230 14 campbell, susan & shaw, sally, “an evaluation of the family court support program at the dandenong registry of the family court of australia” report to the attorney-general of australia, april 2001, unpublished. 72 journal of clinical legal education june 2003 clients commented both on the fact of receiving advice in terms they could understand and on the personal support and confidence they obtained from the fcsp. typical comments were: “i found the advice extremely helpful, easy to understand and correct.” “i received step by step help with the documents i had to supply to the court. the legal terms were put simply for me to understand.” “i was feeling very intimidated by having to represent myself. the [fcsp] staff made me feel good about myself.” “this has given me confidence that paperwork and procedures can be successfully completed by myself, this takes a lot of stress and the feelings of hopelessness out of what for me has been an ongoing dilemma.”15 as to the opinion of judicial officers, most commented on their perceptions of the increased confidence of litigants, the improvement in quality of documents presented and, regardless of the statistical results, a higher rate of settlement. several stated that the fcsp should be extended to more days of the week and that similar programs should be established at other registries. despite the inconclusive results of the quantitative research, the court continues to believe that the fcsp is of value to it and other registries around australia have discussed ways of establishing their own version of the program. it is hoped to conduct a more substantial evaluation project in the future. the student experience the students in the program are drawn from three sources: a. students taking the final year subject advanced professional practice16 who have completed the generalist clinical subject are with the program for the whole semester. their workload is two sessions per fortnight – the first week is a session at the family court and the second week a half-day at mols. there is usually follow-up work required on their ongoing files. b. students taking one of two family law electives as an optional subject in the undergraduate degree may elect to participate in flap for five half-day sessions. this will represent 40% of their final assessment for the subject. four of these sessions are at mols and one is as an observer at the dandenong family court. students who have completed a placement as part of one family law elective and wish to take another in the second subject are permitted to do so but they are required to spend two days at court, thus building on their experience in the first placement. c. volunteers, who are usually ex-students of flap, offer their services on an ad hoc basis. occasionally law students from other universities, and even practitioners from overseas seeking to gain experience of the australian legal system, volunteer. 15 quotations are taken from the report. 16 advanced professional practice has been created as a subject ‘home’ for all monash specialized clinics. it is formally a one semester elective subject in the undergraduate degree. specialist clinical legal education: an australian model 73 at the start of the semester students receive an orientation tutorial which provides them with material on interviewing and drafting skills, annotated instruction sheets, glossary with index to precedents, overview of library resources and a general introduction to office procedures. more experienced students are paired with a junior student for their first interview to provide a mentoring role. assessment for advanced professional practice students who have had the conduct of some ongoing files, there is a “file review” at regular intervals, with the final assessment based on their performance over the semester (80%) and a written assignment (20%). this assignment is to discuss in detail two issues or problems encountered in the program with appropriate reference to legislation and case law and a reflection on the perceived need for changes to law and practice. students participating in flap as part of a family law subject are assessed on the quality of their participation in the program (25%) and a reflective piece on the program (15%). many students do elect to take a second family law subject and to do a second placement and they comment on the fact that the skills learnt in the first placement are reinforced in the second, partly because they take a mentoring role with new students. what do the students learn? clinical legal education which is integrated into the curriculum engenders enthusiasm for legal practice in the students because they can better appreciate the relevance of theoretical lecture material. in addition, it teaches them the portable skills of interviewing, drafting, negotiating and elementary advocacy in an environment in which they can feel comfortable and able to learn. students are challenged to consider whether the law in practice differs from the law in theory and whether legislation or practice should be changed to ensure a more “just” result for all members of society. although the educational aims of the flap/fcsp program are the same as for any other form of clinical legal education, the more specific aims are slightly different for each category of student. the advanced professional practice students have learnt and applied fundamental interviewing skills in the generalist clinic and they are expected to develop these further in their flap experience. in the generalist clinic each student would almost certainly have conducted interviews in family law matters but they will not have had the depth of experience involved in providing detailed advice in contested matters, as the generalist clinics only handle uncontested/consent matters. furthermore while the unending variety of problems seen at the generalist clinics teaches students to be able to identify and analyse issues across almost every conceivable area of law, by definition they are rarely able to develop a depth of knowledge in any area. those students who took part in advocacy in the generalist clinic had the luxury of being able to prepare the matter thoroughly and were not called upon to appear in the pressure of the family court at relatively short notice. for the family law students, it is clear from their written work that their learning extends across a gratifying range of understandings. 74 journal of clinical legal education june 2003 integration of theory and practice “it was at [flap] that family law leapt from the pages of my lecture notes to become a much needed legal recourse to real people in problematic situations.” “flap quickly demonstrated that the study and practice of family law can involve vastly different types of knowledge. on my first morning i learnt that a divorce costs $575, that nearly every application will require at least 3 forms and that a family court will reproduce a copy of previous orders for no charge.” “the reality of cases required my own identification of the important facts, drawing a sharp contrast with the textbook cases where the facts are apparent.” professional skills “interviewing clients has refined my ability to listen and ask questions that elicit the relevant information. a client may be distressed or simply as a non-legal professional unaware of the information the court is interested in, such that they may pour out the whole story including a lot of information that is irrelevant or contentious. i realized that it was my responsibility to direct their thoughts and answers towards getting the outcome they were after.” “i was interested in whether, and how, i could achieve a balance between listening to the client in a sympathetic way and getting down the facts and finishing the interview on time.” “for much of the day i attempted to negotiate with the mother’s barrister...although this was daunting i gradually become more comfortable and confident. i was initially concerned that my knowledge and experience deficit would mean that the barrister could effectively tell me anything. in general he was understanding of my limited knowledge but towards the end of the day he began to exaggerate his arguments...[eventually] i made a brief appearance, confirming the content of the [interim] orders and the return date. the opportunity to sit at the bar table and address the court gave me great confidence. the barrister then loudly commented that i had been very professional and a pleasure to work with” thinking like a lawyer “on a conceptual level, i found that there is fundamental difference between the way in which a law student and a client think about the law. law students understand that the law provides a series of very limited avenues to obtain specific outcomes. my clients just wanted their problems solved.......i also found that there is an equally fundamental difference in the way that a student and a solicitor survey a client. it took several weeks for me to stop focusing exclusively on obtaining valuable information from the interview and be able to step back and critically assess the prospects of my client’s application.” specialist clinical legal education: an australian model 75 the requirements of professionalism “the second interview i conducted was related to a dispute over contact of a child. we were acting for the husband who the wife was alleging had sexually abused the daughter.....looking back i realised that i wasn’t as compassionate or [attentive] towards this client as i should have been. the main reason i want to practice family law is because i want to protect children and when you have allegations of abuse of some sort you start to wonder who it is you are representing. it wasn’t until i was in the room with him and interviewing him that i realized that practising law requires such objectivity and i wasn’t sure in this situation if i could do that. but as the interview progressed i sort of switched off my emotions and listened to what he had to say. ...i found that interview quite hard. i was judging this client because of allegations and our criminal justice system presumes innocence until proven otherwise, yet there i was looking at this man and feeling quite scared and awful in myself for helping him to get access to his child. yet he could very well be innocent of the allegations. this was the hardest interview i took at flap...for the first time i realized that whatever area you wish to practice in, you can’t choose your clients..” “i also became aware of how much trust a client has in legal professionals and the privilege a legal professional has in receiving such personal information from clients. at the briefing before the placement we were reminded of our duty of confidentiality.” “in my interaction with this client, i thought i had been friendly and empathetic, making the occasional joke to relax the client and make his court experience less intimidating. however, [the supervisor] felt that the client had been ‘too friendly’ and had enjoyed my company ‘too much’. while he emphasized that this was not my fault, he warned me to be careful in my future career. this came as a shock as i had not felt uncomfortable. [my supervisor] pointed out that particularly in family law, the lawyer is often the ‘knight in shining armour’, the person with stability and firm answers when all else in the client’s life is deteriorating. whilst a surprising assessment of the client, the comments were a confronting but important lesson to learn at this early stage.” the failings of the legal system “the advanced placement reiterated the inadequacy of a legal system that is stretched to the point where undergraduate students are the best source of legal advice on offer to many people.” and finally “ from the first day of placement til the last day at the dandenong registry of the family court it’s been hectic, interesting, educational and strangely fun. it’s probably not the best thing to admit enjoying yourself considering that most people who come to [flap] are often fighting a battle where there will never be a winner or loser and what they’re fighting for often involves their own children.” as all clinical teachers know, it is the intensity of the students’ learning experience which makes being a teacher so rewarding. 76 journal of clinical legal education june 2003 what makes a successful clinic? the monash experience with specialised clinics suggests that there are three factors (or ‘inputs’) necessary to ensure that a new clinic functions effectively, provides appropriate experience for students, meets client demands and operates for a significant period. these factors are: • client demand; • student demand; and • funding. these may seem so obvious as to be not worth mentioning but when planning a new generalist clinic, the first two factors can usually be taken for granted. clients will come from near and far to obtain advice and students will enthusiastically support any opportunity to obtain practical experience. with a specialised clinic, the very fact that it will be handling cases only in a specified area raises more complex issues. with the monash forensic psychology and sentencing clinic, the issue was client numbers. because the clinic was seeking clients charged with relatively serious criminal offences, referrals from the monash generalist clinics could not supply sufficient clients. victoria legal aid, which funds the great majority of criminal trials, was willing to refer clients for psychological assessment by the clinic, but would not refer any part of the preparatory legal work. that left the law students with insufficient work to retain their interest (or to justify the award of academic credit). with the sexual assault clinic, there is no lack of clients (unfortunately) because they are referred by the centre against sexual assault. the issue here is student demand. of those students who have completed the generalist undergraduate subject, very few choose to take a subject specializing in legal issues relating to sexual assault. (it has been suggested that they may be wary of the reaction from employers.) thus this clinic has enough clients but very few students and in some semesters has to rely on students staying on as volunteers. funding the cost of supervising staff, premises etc, is an issue never taken for granted. but it is itself usually dependent upon a satisfactory level of client demand, for government funding, or student demand, for university funding. it is for these reasons that the family law clinic has been the most “successful” of the three monash specialised clinics. as indicated earlier, the client demand is inexhaustible. initial student demand, when the clinic was taking only those students who had completed the generalist clinical subject, was problematic; student may have felt that they had experienced sufficient family law already. the breakthrough came when it was decided to open the clinic to students taking the family law academic subjects. these students by definition have made the decision to take a family law subject and it may be that the four week placement is more attractive than the concept of working at the clinic for the whole semester. in any case these students are very keen to gain practical experience and each semester between 50 and 70 students elect to enrol in the placement. this therefore guarantees more than enough students to meet the client demand. the third factor, funding, also differentiates the family law clinic from the others. with the grant of government funding, staff salaries are provided for and the university’s contribution is relatively small in proportion to the popularity of the clinic with students and its significance as a form of university community service. specialist clinical legal education: an australian model 77 conclusion there is one remaining issue which most clinicians will be conscious of and which seems particularly pointed in the context of specialised clinics. should we be filling the gap in public legal aid and thereby letting governments off the hook? there is no easy answer to this question. at monash our decision usually is the pragmatic one – it is extremely hard to turn clients away when their problems are real and pressing and we have the capacity to help them. but it is slightly easier to live with this compromise in the context of the monash philosophy that the educational needs and the legal needs of clients are equally important. as adrian evans has pointed out17, ‘students are encouraged to see that their own education and the empowerment of their clients are mutually dependent. the ethos here is that clients who acquire legal power from interactions with students legitimise the learning process for those students. the element of potential exploitation by students of their clients in the interests of the future income-earning potential of the students is to this extent diminished or eliminated.’ bibliography 1. specialised clinical legal education begins in australia (1996) 21(2) alternative law journal 79, evans, a 2. litigants in person – a report to the attorney-general (august 2000), family law council 3. community legal services expanded (3 may 1998) media release, commonwealth attorney-general 4. the tyranny of distance: clinical legal education in ‘the bush’ (2002) international journal of clinical legal education 64, giddings, j & hook, b 5. internal working paper (1999), family court of australia (dandenong registry) 6. o’toole v scott [1965] ac 939 (privy council) 7. damjanovic v maley [2002] nswca 230 8. an evaluation of the family court support program at the dandenong registry of the family court of australia (april 2001), report to the attorney-general of australia (unpublished), campbell, susan & shaw, sally 9. adrian evans: an australian perspective, clinical legal education – active learning in your law school , brayne, duncan & grimes 17 adrian evans: an australian perspective in brayne, duncan & grimes, clinical legal education – active learning in your law school pp.269–270. 78 journal of clinical legal education june 2003 pro-bono essay competition – highly commended pro bono: what’s in it for law students? so what exactly does make the experience of pro bono so special? for me it offers two main benefits to students. firstly it gives students the skills and confidence necessary to pursue a career in law, and secondly it instills student with a sense of social awareness, professionalism and empathy, which are all essential to becoming a good lawyer. the skills developed in pro bono legal practice are invaluable to the pursuit of a career as a practicing lawyer. almost every role within the front line services of the legal profession requires basic abilities in client and case management. the focus on techniques such as interviewing, legal writing, organisation, and management of the expectations of client qualify students perfectly to move forward in their legal career. not only does the development of such skills help undoubtedly benefit students going into practice, but in my own experience provides the confidence to embark on that course. i for one can say that prior to my experience in pro bono legal work certainly wasn’t confident in pursuing a career as a lawyer. however in developing these skills and confidence, and engaging in first hand experience working as a trainee solicitor, albeit in a pro bono setting, verified the enjoyable and exciting nature a career as a lawyer presents. not only does pro bono develop the basic skills necessary for a lawyer, it also helps to nurture lawyers who uphold the professional and respected image of the legal profession. lawyers not only need to be good at achieving results for their clients, but also at providing a professional and comforting service. clients that students experience in pro bono work tend to come from a variety of social backgrounds this helps to break down any unconscious social bias they may have, to ensure that in practice they approach each case with an open mind and with the necessary social awareness and empathy required of a lawyer. working in pro bono work prior to going in practice helps students to develop as lawyers whose primary concern is to help their clients rather than being purely motivated by money and career advancement. from my own experience work carried out in a pro bono setting was extremely rewarding, and confirmed to me why i chose to pursue a career in law. students are also given the opportunity to experience exactly what working as a lawyer entails, working within a firm of their own, being assigned other students to work with as partners, and a supervisor to report to. this is another invaluable part of the experience, as the ability to work within a team of lawyers is often what a career in the law involves. on the whole the experience of working in pro bono provides students with the necessary skills, and develops the character that is essential for work as a lawyer, while also allowing them to conclude on what form of legal career would suit them most. callum bland 165 reviewed article 38 india’s law school legal aid clinics: the gaps between aspiration and practice k rajashree and sonika bhardwaj, christ university, india* abstract the law schools legal aid activities conducted through its clinics has come a long way in india especially since its inception in the early 1970’s. its evolution has been gradual, intermittent and varied. although the bar council of india (bci) has mandated, establishing legal aid clinics as a pre-requisite for granting the necessary permissions before law schools start functioning, there are limited ideas of its purpose and objectives. an inherent lack of understanding its importance in terms of teaching, learning and research, the legal aid practices are largely left to the discretion of the individual law schools and interpretations of the individual faculty members. combined with ideas heavily borrowed from the law schools in the us and individual experiences of the faculty members, legal aid practices in india are diversified. in the backdrop of this, the author intends to explore and map the aspiration of legal aid through an analysis of the key policy documents of legal education since india’s independence through an ontological framework. the ontology maps the aspirations of the legal aid clinics that was intended through these documents. additionally, a case study of two important institutions have been taken as the case in point in order to verify whether the practices match such aspirations. thereby, putting forth reviewed article 39 arguments that are critical for understanding the gaps between the aspiration and the state of reality. key words: legal aid clinics, law schools, clinical, legal education, social justice introduction the preamble of the indian constitution, guides its law makers to formulate avenues, structures and mechanisms, to ensure a society that is inclusive of the masses. as a consequence of which, article 39a was inserted through the 42nd constitutional amendment in the year 1976. the amended article casts responsibility on the state to provide free legal aid to the marginalized. 1 the law makers, legal luminaries and the academics realising india’s huge population and the potential of the law schools, recommended the possibility of utilization of their tremendous student resources. if mobilized, could be effectively used in addressing some of the social issues and aid in fulfilling the enormous unmet legal needs of the people. additionally, another important objective of the legal aid clinics being, preparing the students to be professionals who would not only be sensitive to some of these needs but also aid in * rajashree. k is a research scholar and dr. sonika bhardwaj is an associate professor at christ (deemed-to-be) university, bengaluru, karnataka, india. 1 sushant chandra & nityash solanki, legal aid in india: retuning philosophical chords, 2 brics l.j. 68 (2015). reviewed article 40 achieving social justice. it was with this intention, the lawmakers introduced the concept of providing legal aid at the law schools through their clinics.2 the concept of legal aid in india dates back to the period between 1960 and 1970 where the law schools borrowed the initial program structure from the clinicians in the united states of america. 3 it was in the year 1973, that the report of the expert committee on legal aid published by the ministry of law, justice and consumer affairs under the chairmanship of justice v.r. krishna iyer that gave recommendations to involve students to make legal aid available to the marginalised communities. 4 the recommendations given by justice v.r. krishna iyer was followed by justice p.n. bhagwati through his report on national juridicare between 1977-78. the report highlighted the need and importance of law schools in fulfilling the huge gaps that existed in the system and how they can be utilized to drive social justice goals. 5 professor dr. n.r. madhava menon, who established the national law school of india university in the year 1986 6 modelled it on the lines of involving the law students as ‘problem solvers’ and ‘societal leaders’. 7 despite various efforts to imbibe 2 rajashree, k. ‘dissecting the dichotomy of skill and social justice theory of law school legal aid clinics in the usa and india: a re-look of the past and the present’, asian journal of legal education, 8(1), 79–94 (2021). 3 frank s. bloch & iqbal s. ishar, legal aid, public service and clinical legal education: future directions from india and the united states, 12 mich. j. int'l l. 92 (1990). 4 manoj mate, two paths to judicial power: the basis structure doctrine and public interest litigation in comparative perspective, 12 san diego int'l l.j. 175 (2010). 5 rajeev dhavan, managing legal activism: reflections on india's legal aid programme, 15 angloam. l. rev. 281 (1986). 6 n. r. madhava menon, why yet another law school, 1 student advoc. 1 (1988-1989). 7 n. r. madhava menon, keynote address at the seventh worldwide conference of the global alliance for justice education, 1 asian j. legal educ. 147 (2014). reviewed article 41 value education and advance the goals of justice through legal aid in law schools, there were not many documented references to the involvement of students in legal aid clinical activities, except for benares hindu university and delhi university between the said duration. 8 it was not until 1998, that bar council of india framed rules incorporating provisions for inclusion of compulsory practical training component into the law curriculum. under schedule iii, rule ii, of the said rules, the bci mandated the law schools to establish legal aid clinics as a pre-requisite for grating permissions to run them. even the curriculum development committee report of 2001 prepared by university grants commission (ugc) suggested allocation of marks for conducting legal aid activities, but without specifically elaborating anything in terms of its objective and its nature. part-iv of the 2008 rules of the bar council of india expanded the role of law students to witness proceedings in the office of a lawyer or in a legal aid office and record the same. however, these rules were not in alignment with the aspirations and spirit of social welfare as opined by legal doyens such as professor upendra baxi and professor dr. n.r. madhava menon. there is no clarity with regard to the key elements and dimensions of legal aid which are to be followed in/by law schools. with ideas and objectives fragmented, practices being sporadic and intermittent, diverse ideas and concepts are attributed to legal aid. 8 frank s. bloch & iqbal s. ishar, legal aid, public service and clinical legal education: future directions from india and the united states, 12 mich. j. int'l l. 92 (1990). reviewed article 42 hence this article makes an attempt to document and map the aspirations of what are the pathways through which legal aid is to be advanced in/by a law school legal aid clinic. this is done by tracing important documents and reports of legal education in india since india’s independence. at the same time, an attempt to verify these aspirations in the background of two types of universities as case studies are taken as a reference. such frameworks are crucial to understand the aspirations and the ground level-realities of the law schools legal aid practices carried out through its legal aid clinics. methodology and limitations qualitative method of analysis has been adapted in the paper. the paper is divided into four important parts. in part-i, the paper conceptualizes the legal aid practices through an ontological method. the framework captures the elements of legal aid as aspired in the key documents of legal education. the conceptualization of the framework was done through observation method and subsequently it was deliberated upon in consultation with experts of legal education to ensure that the framework includes all the necessary elements/ dimensions of legal aid. in part-ii, the framework has been used to map the dimensions and elements from some of the key legal documents such as the law commission reports, reports of the committee established by the ministry of law and justice, supreme court of india committees on legal education, university grants commission report and bar reviewed article 43 council of india reports on curriculum development. through this, the aspirations of legal aid which are derived at is used for the purpose of verifying if they are in consonance with the practices followed in two different and diverse typologies of universities which are taken as the point of study for the present paper. in part-iii, two types of universities have been chosen based on a stratified sampling method. the selection of the university was based on 3 criterions such as year of establishment, geographical representation and the type of institution i.e. government and private. upon finalization of the units of analysis, the legal aid practices of both the institutions were mapped to the framework where the similarities and the differences were identified. these similarities and differences were used to do content analysis and draw conclusions to render recommendations in part iv. the names of the university have been assigned codes such as ui and uii for the purpose of anonymity. the paper is backed by a thorough review of literature both recent and old to advance the arguments. the paper is limited to the study of two typologies of universities only. there is a need for further analysis to have in-depth understanding of legal aid practices on the field. for which there is a need to conduct in-depth interviews and observe legal aid practices in their natural settings in order to arrive at evidenced based recommendations. this will aid in understanding the efficacy of the working of legal aid clinics across institutions in india. the authors have used primary data and observation method to draw the conclusions. there is a need for conducting in depth reviewed article 44 investigations in order to further explore and understand the extent to which these aspirations are realised. understanding the objectives of law school legal aid clinics through a purview of literature as early as 1930 john s bradway, opined that it was important for the law school legal aid clinics to render free advice to worthy indigent clients who were unable to afford the services of a lawyer. bradway, strongly believes that by doing so, it would fulfil dual objectives, firstly, fulfil societal needs and secondly, train the students of law in legal aid clinics. 9 stephen wizner and jane aiken, state that the law school legal aid clinics started with the intention of providing and expanding access to justice. according to them, when the law school legal aid clinics started it was all about providing free legal services to the poor who were otherwise unable to represent themselves before the court, influencing changes to policies and for future development of legal aid in the society. but they also opine, that there is a need to revisit these ideals and understand whether todays legal aid clinics have the same approach as before. 10 9 john s. bradway, legal aid clinics, 8 st. b.j. 261 (1933). 10 stephen wizner & jane aiken, teaching and doing: the role of law school clinics in enhancing access to justice, 73 fordham l. rev. 997 (2004). reviewed article 45 the works of adam babich, reflects that while the law schools legal aid clinics deal with real problems and real clients it amounts to integration of ‘professionalism’ and ‘reality’ with ‘academic idealism’. when these legal aid clinics take over socially relevant issues, they become the voice of the common man. there have been legal aid clinics which have taken over various social issues that plague the society and have been the frontrunners in heralding changes. 11 philip alston and peter cashman, while talking about the purpose of setting up legal aid clinics at law schools, make the following observations. they state that these clinics fulfil a valuable ‘social and educative’ role. such clinics should be instrumental in mitigating poverty and work for the social and legal rights of the common man. 12 such views are also resonated in the indian context as well. the notions that the law schools have a social responsibility to fulfil through the legal aid programmes and clinics are very apt. legal aid programmes are to be used as instrumentalities of social and economic change. such involvements aids student learning and enables ‘knowledge mobilization’. 13 it is opined that that the law school legal aid clinics through its various community development programmes and activities have 11 adam babich, controversy, conflicts, and law school clinics, 17 clinical l. rev. 469 (2011). 12 philip alston & peter cashman, the purpose of setting up legal aid clinics, 3 sing. l. rev. 27 (19711972). 13 jane schukoske & roopali adlakha, enhancing good governance in india: law schools and communityuniversity engagement, 3 j. indian l. & soc'y 206 (2012). reviewed article 46 individual benefit and community benefit at large. such experiences are essential to give exposure to ‘real-world situations’ through community development. 14 in india it is argued that there are vast unmet societal needs. with legal aid being a basic human right and a constitutional mandate, there is a need to encourage the law schools legal aid clinics to impart para-legal training amongst the law students. 15 contemporary literature is also replete with instances which defines the purposes of legal aid clinics. firstly, to provide the students with a better legal education and secondly, to create/ enhance access to justice for the community. 16 engaging the students in various pro-bono activities, through legal aid clinic is seen not only as a socially relevant tool for accessing justice but is also an educational experience to motivate students which would help them in subsequent employability. 17 legal aid programmes, especially in india grew on the lines of jurisprudential concepts such as ‘rule of law’, ‘equality before law and equal protection of the laws’.18 hence, the law schools have to take some responsibilities upon themselves. it is where the students of law are not just trained to be lawyers, but learn how the law ‘works in action’ and are able to contribute towards social change.19 in this regard, 14 upasana dasgupta, the paradox of elite law schools in india a comparison with canadian legal education, 2019 rev. quebecoise de droit int'l 147 (2019). 15 srikrishna deva rao, paralegal education in india: problems and prospects, 1 j. nat’l l. u. delhi 94 (2013). 16 david w. tushaus, shailendra kr. gupta & sumit kapoor, india legal aid clinics: creating service learning research projects to study social justice, 2 asian j. legal educ. 100 (2015). 17 frank dignan, richard grimes & rebecca parker, pro bono and clinical work in law schools: summary and analysis, 4 asian j. legal educ. 1 (2017). 18 clarence j. dias, legal aid in asia: a basic human right, 1985 third world legal stud. 89 (1985). 19 nidhi sharma, clinical legal education in india: a contemporary legal pedagogy, 8 indian j.l. & just. 165 (2017). reviewed article 47 stallybrass states that the law universities should provide the students with such training which gives a man the power to handle and deal with everyday problems, develop administration capabilities and not merely endeavour towards imparting education that is only vocational in nature. 20 considerable strides have been made in legal education since india’s independence, yet many significant issues need to be addressed. there is a dearth of quality teachers who lack a sense of commitment towards the institutions. the reasons for this are aplenty, such as overburdening them with administrative responsibilities leading to limited class room preparations, research and publications. 21 hence the quality of legal training that is offered through legal aid clinics suffers. it is for this reason, that professor upendra baxi had raised his concerns that law school would not be in a position to produce a league of new generation of lawyers who would take up social issues and work for the underprivileged. resonating these views, professor dr. madhava menon had said that legal aid is that pedagogic tool through which a spirit of public service could be infused into the students. 22 yet, legal aid still struggles to find a foothold in today’s legal education system. legal aid is yet to be made mandatory and fully incorporated into india’s clinical legal education. 23 20 w. t. s. stallybrass, law in the universities, 1 j. soc'y pub. tchrs. l. n.s. 157 (1948). 21 lovely dasgupta, reforming indian legal education: linking research and teaching, 59 j. legal educ. 432 (2010). 22 shuvro prosun sarker, empowering the underprivileged: the social justice mission for clinical legal education in india, 19 int'l j. clinical legal educ. 321 (2013). 23 sital kalantry, promoting clinical legal education and democracy in india, 8 nujs l. rev. 1 (2015). reviewed article 48 as mentioned by richard grimes, the law schools need to provide legal aid that is on par with what is provided by the state. the role of the clinic is a very prominent one and the clinics need to raise the level of legal literacy and assist the general public. 24 there are clear interlinkages in terms of achieving a twin fold objective of legal aid clinics in law school. hence this paper, uses the literature and the case study method to verify whether these aspirations of fulfilling the dual mandate are in consonance to each other. part i: conceptualizing legal aid practices through an ontological approach an ontological approach is a qualitative research methodology that is used to bring clarity through hierarchical deconstruction, for the logical construction of a problem. the aim of ontology is to provide reasoned, deductive account of the things that exist. 25 an ontology brings out the exact nature of the elements to a problem, that is simply presumed most of the times. an ontology brings out the conceptual overview of a problem. 26 the method of ontology is based on logic and has the following benefits: • makes the research systematic • helps in reformulating the problem 24 richard grimes, accessing justice: the role of law school legal clinics in conflict-affected societies, 1 asian j. legal educ. 71 (2014). 25 l.m. given, l. m., ‘the sage encyclopaedia of qualitative research methods’ (2008). 26 a.j. mills, durepos & e. wiebe, ‘encyclopaedia of case study research’ (2010). reviewed article 49 • brings together the issues in a coherent manner the below framework encapsulates the various dimensions of legal aid elements that are practised through the law school legal aid clinics and activities. the framework is a derivative of discussions with experts from the academia and the judiciary who have contributed to the area of legal aid in india. such frameworks are a result of not only discussions, but also follows the process of validation in order to ensure that the framework is complete and comprehensively capture all aspects of legal aid. hence in this section, legal aid which is within the larger framework of clinical legal education has been deconstructed in three ways, firstly through review of the relevant literature, discussions with experts and a priori knowledge of the authors of engaging with legal aid activities at the institutional level. the framework is an important aspect which is used to map the aspirations from the key policy documents in section-ii. as depicted below, in figure 1, the framework puts speculations into ‘methodologically informed observations’.27 the framework has been arranged into level 1, level 2 and level 3. level 1 depicts the dimensions such as legal education, level, activity, actors and outcome. level 2 depicts elements such as clinical, undergraduate, post graduate, curricular, co-curricular extra-curricular, students, faculty members, administrators, community, regulators, judiciary, practitioners, 27 s.g. hoffman & v. kumar, ‘ontology. in: paul atkinson, ed.’ (2020). reviewed article 50 justice, holistic learning and employability. level 3 depicts the sub elements of the main elements such as legal aid, social and economic aspects. figure 1: framework for mapping legal aid in institutions imparting legal education every taxonomy, when read, encapsulates a complete meaning in itself. hence the above framework depicts 3*2*3*7*5=630 pathways to deal with aspects of legal aid which forms a part of the clinical legal education. every statement when read from the left to the right with various permutations and combinations is capable of giving a complete meaning in itself. for example: clinical legal education [for] undergraduate level [through] curricular activity [by/with] students [for] social justice. legal aid [for] post graduate [through] extra-curricular [by/with] faculty [for] holistic learning and so on. reviewed article 51 part ii: mapping the aspirations to the ontological framework this section, synthesizes the aspirations of the key policy documents to the ontological framework. upon the logical deconstruction of the key components in the form of a framework, elucidated in the previous section, this section, picks the key elements of the framework from the policy documents which are then mapped together in order to help visualize patterns and draw reasoned conclusions. essentially the framework is used to understand and analyse how many times these elements appear in the policy documents to determine the weightage that has been accorded by the policy makers. every dimension inclusive of elements and subelements of the framework were mapped using binary coding from the key documents of legal education in india. binary coding is a method in which the key policy documents are kept vertically and all the elements of the ontology are placed horizontally. if any elements appearing in the ontology are aspired in the documents, they are coded as 1 and in its absence are coded as 0. this helps in deriving maps that shows how many times, the elements and sub-elements appear in the policy documents which helps in analysing and arriving at conclusions. the following chart is a depiction of the expectations that the key policy documents aspired for. the chart helps in visualizing patterns in the coded taxonomies elaborated in the ontological framework. any element of the framework which were present in the key documents were mapped to derive at patterns. these patterns are in the form of a hierarchy chart that depict the aspirations that have unfolded through the key reviewed article 52 documents. this map (figure 2) sets the context to verify, through the case study approach in part-iii, to understand if institutional practices match the state of aspiration. figure 2: hierarchy chart an analysis of the framework and its subsequent coding, connotes the aspiration of the documents perused here. the chart indicates, that there is an aspiration for integrating legal aid into the curriculum as a clinical paper. it elaborates that legal aid practices are to be pursued both at the undergraduate and post-graduate level with the intention of advancing social justice goals. it indicates that, it is essential that while reviewed article 53 students are involved in legal aid activities, community needs are fulfilled and at the same time enable holistic learning amongst the students. the objective of legal aid is twofold according to the reports, that while it keeps the end result of achieving social justice in mind it equally provides an opportunity to the students to be sensitive to the needs of the society. the reports do not make distinction between students of undergraduate and post graduate domains in respect of their involvement in legal aid activities. on observation it is found that legal aid activities were to be incorporated into the curriculum as a clinical paper. the law schools have a very categorical role to play in fulfilling the needs of the society. the law school, from where the vast majority of the professionals such as judicial officers, lawyers, social workers, administrative officers graduate year after year, have a responsible role to play in the society. through involvement in legal aid activities, it provides the students an opportunity to not only deal with the problems faced by the common man but also prepare them to deal with their professional challenges and commitments in future. the mapping of the documents to the dimensions, elements and sub elements of the ontology, gives us clarity as to the key aspirations of the documents which provides impetus to the arguments that are advanced with the help of review of literature. the hierarchy chart has been instrumental in verifying the common objectives of legal aid, thus providing succour to the commonalities and the inconsistencies that exist between the key mapped documents and the reviewed literature . this is further reviewed article 54 verified in the next section with the case study of two unique and different types of institutions. part iii: case analysis of institution i and institution ii case study is adopted to capture the complexity of specific cases within a defined boundary and space. typically, in a case study which is conducted in an educational set-up, captures specific components such as the institution programmes and any activity that is usually carried out in its natural setting. such observations enable the researcher to derive at logical and coherent conclusion about such cases. 28 a case study involves the selection of the case samples, strengthening the arguments with evidences and finally analysing the cases. 29 the idea of a case study is to understand and analyse concepts and situations from within the set-up rather than an external view. 30 at the same time, comparative case studies, also may be conducted to compare and draw similarities, contradictions and patterns across dual or multiple cases. 31 university 1: the setting university 1 (u1) is an institution which was established with the vision of imparting education that is in alignment to global standards. with diversity in the courses that 28 m. tight, ‘origins and applications of case study. in: understanding case study research: small-scale research with meaning (2017). 29 r.k. yin, ‘how to do better case studies: handbook of applied social research methods’ (2009). 30 a.j. mills, durepos and e. wiebe, ’encyclopaedia of case study research’ (2010). 31 id. reviewed article 55 it offers, it has maintained standards in delivering quality legal education in india. the courses are in consonance with the bar council of india rules and regulations. they have been designed with a view to meet the interdisciplinary challenges of today’s context. u1 not only ensures achievement in academic excellence, but also fosters scholarship through research and collaborations. legal aid practices at university i the legal aid clinic of u1 was established with the objective of empowering and engaging with the communities through awareness programmes and offer legal solutions. the clinic envisions the objective of achieving ‘social justice’ through varied activities, programmes and projects. at the same time, it wishes to afford an opportunity to the law students to apprise them with the ground level realities and to use the instrument of law to usher ‘social change’. the activities of the clinic are not just confined to offering legal solutions to problems but moves beyond that and strives towards providing solutions to an entire range of socio-legal problems prevalent in the country. the clinic has a dual mandate, firstly, creating awareness and secondly, providing legal aid. the clinic has taken an active role in engaging with people from the lower socio-economic strata, and in particular children. these activities are conducted by the students as an extension activity. the clinic has been instrumental in filing public interest litigations (pil’s) before various forums for the purpose of social cause. they have even undertaken projects to look at the efficacy of the legal aid clincs in india. the legal aid clinic regularly reviewed article 56 organizes conferences and conclaves both at the national and international level on areas that revolves around rural governance, legal aid clinics and human rights issues. the activities also extend towards making recommendations through policy changes to various governmental departments. the clinic has made use of technology in order to effectively reach out to the community and has always been vocal in supporting the cause of the marginalized community. the clinic intends to reach out to more legal aid clinics across the country through its initiatives in the forthcoming days. due to the innumerable activities undertaken, the clinic as well as the students are recipients of various awards for the considerable work that they are doing for the society. hence the activities of the legal aid clinic of u1 is varied and diversified. university ii: the setting university ii (uii) is one of the oldest institutions that imparts legal education in india which was established right after india’s independence. the vision of uii is aligned towards achieving excellence in education to ensure an inclusive society. whereas its mission is oriented towards integrating theoretical knowledge and practical skills in teaching and research. the vision and mission are aligned to make legal education accessible and inculcate social sensitivity amongst its students. the students of the institution are from diverse backgrounds who hail from different socio-economic, rural, semi-urban and urban background. the programme offers single course at the undergraduate and post graduate level since its very inception. the institution is reviewed article 57 established in a multi-disciplinary set-up, but with limited interactions with other disciplines. legal aid practices at university ii annual legal aid camps are conducted by uii where the students of the undergraduate courses are taken to a village annually. there the programmes are split into two aspects, legal awareness and legal aid. during these camps, legal awareness is rendered by the faculty members in the village community spaces covering topics such as malnutrition, hygiene, consumer related issues and various social welfare legislations. secondly, the students visit the village, collect information on various issues that the villagers face through a questionnaire and submit the same to the concerned faculty members for future action. in such camps, the role of the student is limited in terms of conducting the survey who are unsure of the outcome of such exercise. the institution lacks an active legal aid clinic on campus, with a nonfunctional legal aid structure situated on campus. the reports of legal aid activities are not available in the public domain nor do they provide any information on how such activities contribute to student learning. the annual legal aid camps are a cocurricular activity, which is conducted to/ with the aid of final year students. reviewed article 58 analysing university i and university ii: the commonalities and the distinctions in order to understand the gaps that exist between the aspirations and practice, the case of university i and university ii are analysed in reference to the framework. a comparative analysis of both of these universities is also carried out to identify the commonalities and the differences that exists between these two types of institutions. with innumerable institutions offering legal education in india, it is important to map such commonalities and distinctions in its legal aid practices. figure 3: comparative analysis between university 1 and university ii reviewed article 59 university i and university ii: the commonalities an extension activity legal aid practices at both the institutions are conducted as an extra-curricular activity. with no course credits being accorded to them, they largely remain an activity that is carried outside the scope of the academic programmes. the students along with specific faculty members carry out the activities more as a requirement to fulfil the mandate of the bar council of india. the legal aid activities are not integrated into the curriculum either as a clinical course nor is it offered as an optional or value added course. this connotes that the mandatory regulation of establishing a legal aid clinic on campus have been duly carried out by both the universities. nevertheless, without its integration into the teaching-learning mechanisms. hence, while carrying out the legal aid activities, it is largely left to the discretion of the interested students to engage themselves and contribute to/ through the society. whereas the aspirations (figure 1) indicates the incorporation of legal aid into its curriculum as a clinical paper. there is a level of seriousness that is attached to any subject when it is integrated into the curriculum. this motivates and affords an opportunity to the students to work towards their overall development and at the same time contribute to the society. with legal aid activities, being largely left to the discretion of individual students, it may not be in a position to achieve its end outcome. with activities spread, without any specific objective and plan of action, the institutions will not be able to meet the aspirations of ensuing an egalitarian society nor will it be able to garner the support reviewed article 60 and attention of the student community. the student resources, if properly channelized can be effectively used in making contributions to the society. the idea of sensitizing the students to the needs of the society may largely remain elusive, if legal aid is not taken up seriously by the universities that offer legal education. undergraduate level the uniqueness of university i and university ii lies in its diversity of programmes that are offered at the undergraduate, post-graduate and at the research level. despite, the variety of its courses and programmes, legal aid activity is largely confined to the under-graduate level. there exist no distinctions in the aspirations of the framework, when it came to involving the students at both undergraduate and post graduate level. the framework casts an incumbent duty on the universities to carry out the legal aid activities in alignment to its vision and mission statement. a deviation is seen in both ui and uii in terms of involving the students from across the undergraduate and post graduate programmes in its legal aid activities. these distinctions create barriers for the effective functioning of the legal aid clinics and clearly acts as an impediment to clearly understand and effectuating the objective of achieving social justice. reviewed article 61 university i and university ii: the distinctions community engagements the common attribute of legal aid practices at ui and uii is to engage with the community. nevertheless, the legal aid clinic of ui has been engaging with the community in continuum whereas uii’s activities are confined to conducting annual legal aid camps. the activities of u1 is not only vast but varied as well. the campus has an active legal aid clinic which is run with the help of student volunteers and incharge faculty coordinators. every day, time is dedicated by the students to spend time in the legal aid clinics to render legal advice to clients who walk-in. additionally, the students participate in continuous legal awareness programmes throughout the year on topics that are diverse and relevant. social justice projects are undertaken for creating access to justice and are actively involved in the filing of public interest litigations. the trend connotes involvement in activities that are essentially outside the scope of extra-curricular activities, but also suggests involvement in research related activities. hence u1 is actively engaged with the community on a continuous basis. these activities to an extent are in alignment with the objectives of the legal aid clinic. whereas in uii, the vision and the mission is oriented towards social sensitivity, but does not offer an in-depth objective that is aligned towards social justice goals. in order to develop a sense of empathy towards the society, yearly legal aid camps are conducted at nearby villages. the activities are annual events with minimal reviewed article 62 intervention of the students. as awareness programmes are usually rendered by the faculty members, the role of the student is confined to filling questionnaires based on the responses of the village members on a single day. hence how much of sensitivity is developed in the final year students in less than half a day is something that needs to be contemplated upon. this shows a lack of follow-up actions that need to be conducted by the students to look at the problems that are reported by the students through the questionnaire. all though some awareness is conducted through the national service scheme (nss) activities, but much cannot be said about its effectiveness. holistic learning involvement of students on a continuous basis with diversified activities are crucial in the learning and development process. there are various skills, both hard and soft that are important for a law student, as they fit into multiple roles and responsibilities in the society as ‘social engineers’. engaging with the community on a continuous basis ensures in development of the requisite skill-set and at the same time in shaping the personality of the individual student who is involved in legal aid activities. with limited and intermittent legal aid activities, it may not necessarily lead to holistic learning and development of a student, a trend which is visible in uii in sharp contrast to u1. the vison and the mission statement of uii is limited to the overall development of the student. no doubt it does mention about training the students of law, but it is not reviewed article 63 specifically oriented towards the overall development of the individual student. the vision and the mission statements reflect training the law student for incorporation of specific skills such as lawyering skills through moot court activity. in traditional universities, more focus is given towards honing the skills of a student, specifically in training them in lawyering skills. conclusions and recommendations there are clear distinctions between the aspirations that are embodied through the literature and the framework. when these aspirations are compared to the case studies of the universities that are presented and analysed herein. the aspirations can be summarized as follows: [clinical legal aid] for/at [under graduate] and [post graduate] level through [curricular] activity by/with [various actors] for [social justice] and [holistic learning]. contrary to the aspiration, the following summarizes the ground level realties of legal aid that are found through the present case study approach: [legal aid] at [under graduate] level through [extra-curricular] activity by/ with [students/faculty]. hence there is a need for the universities in consultation with the regulatory authorities to define the clinical component of practical training of students through reviewed article 64 legal aid activities. involvement of the students is beneficial not only in meeting the demands of the societal needs but also aid in developing the individual self. the above analysis, indicates a trend that there is minimal involvement of students. with limited focus towards legal aid activities, it is not achieving and may not be able to achieve in future its actual objectives and aspirations. the above framework and comparative study provides the foundation for various universities across india to see if legal aid activities are achieving the desired results. it will also be instrumental in answering critical questions such as how it is able to translate to social justice and if not, why it is not able to achieve the constitutional mandate of social justice. hence the following recommendations have been suggested: 1. integration of legal aid as a clinical paper. this brings in sufficient focus towards the activities of legal aid by the institution 2. according credits for conducting legal aid activities. due to which there will be an element of seriousness amongst the students to strive towards making such activities meaningful 3. involvement of students of law both at the undergraduate and post graduate level from the first year onwards gives the students sufficient time to engage with the community and build their professional commitments around the ethics that is built over the years through their involvement in legal aid activities reviewed article 65 4. integration into the curriculum as optional papers/ bridge courses or value added courses. these courses give them the option to explore legal aid activities to make informed choices 5. the universities in consultation with the relevant stakeholders to define the objectives and outcomes and ensure its compliance through regular audits. this brings is accountability amongst the institutional stakeholders special issue: european network for clinical legal education 6th conference “representing the other: a case for interdisciplinary clinical legal education: example of the human rights and migration law clinic” jovana bogićević, university of palermo, italy [footnoteref:2] [2: ph.d candidate at university of palermo, department of law, bogicevicjovana3@gmail.com] from january 2018 until late july of the same year, i had an opportunity to participate in the human rights and migration law clinic (hereafter hrmlc or ’the clinic’) in torino, where i got a chance to experience working with the asylum seekers, interviewing them, writing their legal memo as well as preparing them for the hearing in front of the territorial commission (italian first board commissions). an important aspect of the clinic in question is the fact that it is conducted in cooperation with the department of anthropology and it involves anthropology students in the work with the asylum seekers. from the very beginning, it was apparent to me why they have opted for the involvement of anthropologists. i was surprised to see how much anthropological training in recognizing and being aware of eurocentric (or any other kind of) presuppositions can be useful in recognizing and understanding cultural misunderstandings that happen on a daily basis in the asylum claiming process, as it is now in italy. even so, the idea for this paper became clear to me only when i attended the first meeting anthropology students had with their supervisor, professor beneduce. the feedback students gave to their professor and in turn, his observations made me inspired to write the paper that is before you. it will consist out of two main and mutually connected parts. first of all, a short insight into the way the clinic is organized will be provided, with the main focus on its interdisciplinary character. the main argument will be that this kind of clinical education is potentially of equal value for both students of social sciences as well as for students of law (who are traditionally the ones that get to take part in it). starting from there, my own experience, as well as the reflections anthropology students had regarding their involvement with the clinic will be used to argue that the field of asylum represents a potentially fruitful field for collaboration between law and anthropology, while the self-professed experience of the students will be understood as an indicator of the main issues that would arise as a consequence of potential implementation of anthropology in the asylum system as it exists today in italy. although from the beginning unintentionally, the paper is a product of a participant-observant method, as i was at the same time participating in the work of the clinic, but also conducting interviews with the students and staff. i. human rights and migration law clinic: origins the human rights and migration law clinic was established in 2011 through collaboration between ulrich stege and maurizio veglio, as the first legal clinic in piedmont region and one of the first law clinics in italy; it is closely connected to the masters program at the international university college of turin and mainly financed through funding dedicated to this institution (stege and veglio 2018, 1).[footnoteref:3] besides the iuc, it is conducted with the cooperation and support of departments of law of the universities of turin and eastern piedmont, with the participation of students from all three faculties. [3: all the information is based on my own experience with the clinic, the interview i have conducted with maurizio veglio on 28.07.2018. as well as on information provided in the article written by stege and veglio (2018).] the students’ backgrounds are various and they come from all levels of higher education (except for the ph.d.) which gives a general variety, multidisciplinary and international character to the entire experience.[footnoteref:4] [4: as the iuc students are mostly coming from foreign countries. more about the iuc: www.iuctorino.it ] according to its founders, the clinic represented a response to a particular situation in italy when the country experienced significant increase in number of migrants and asylum seekers; according to stege and veglio: “all this created, in a very short time, the need for quick legal, social and political responses, for which authorities were not entirely prepared. in addition, italy lacked and still lacks well-prepared professionals, who are capable of dealing with such situations, and is a significant deficit of targeted educational programs” (stege and veglio 2018, 6). it is therefore that the clinic was conceived as a response to two separate needs: one of students to “experience gaps between the law in the books and its implementation in practice, especially in the context of human rights and migration law practice” and the one that existed in the broader social context, where an increasing number of asylum seekers was in need of legal assistance with the support of the governmental institutions being insufficient (stege and veglio 2018, 2-6). it was in 2015 that hrmlc established a collaboration with turin university’s department of anthropology when students from this discipline became involved in the work of the clinic, with the main role of “supporting clinical students in interviewing asylum seekers and researching relevant country of origin information” (stege and veglio 2018, 11). it is on this aspect of the clinic that the special emphasis will be made later in the paper. educational structure the clinic consisted of three semesters; the first one is dedicated to the theoretical lectures about international and european migration law, together with preparation for practical activities that take place in the second and third semester. especially in the latter part, it was apparent how the different backgrounds students had added and enriched the problem-solving process, in which we were all invited to take part in and actively contribute to. in the academic year of 2018, the offered practical activities consisted of refugee law clinic, strategic litigation, human trafficking clinic and ilo/access to work and social protection for migrants. for the purpose of this paper, the focus will be on the refugee law clinic, since it is the one i participated in and also the one in which the presence of anthropologists is highlighted the most. students taking part in the refugee law clinic were divided into five pairs and each of them has been assigned one of the anthropology students. during two semesters, each group had been given a case of an asylum seeker and a supervising asgi lawyer.[footnoteref:5] their task was to conduct interviews with the asylum claimers, prepare them for the hearing in front of the territorial commission and then write a legal memo that would, after being reviewed by the lawyer, be presented to the territorial commission. the way they divided work amongst themselves was left to them to decide. [5: associazione per gli studi giuridici sull'immigrazione, an italian network of legal professional working in the area of asylum and migration. for more information: http://www.asgi.it./ ] ii. interdisciplinarity and clinical legal education: refugee law clinic as a meeting point in the past decades the idea of interdisciplinary education has become exceedingly popular. scholars have observed emergence of new ‘hybrid fields’, comparative studies and holistic perspectives that are challenging traditional division of knowledge or as cliford geerz noticed, “there is something happening with the way we think about the way we think” (thompson klein 1990, 11). although the importance and potential of interdisciplinary education have been recognized, the consensus about what it actually represents and what is the proper way to be achieved is still lacking. as harvey graff states, “interdisciplinarity's proponents and critics talk past each other. seldom do they seek common terms; typically, they mean very different approaches when they refer to interdisciplinarity. they erroneously dichotomize disciplines and interdisciplines, confuse specialization and synthesis, and misconstrue “integration” (graff 2016, 1). even though it is apparent that there is still a ‘general confusion’ about what the interdisciplinarity is, educators still employ this approach in order to deal with range of issues with some of the examples being: “to answer complex questions, address broad issues, explore professional and interdisciplinary relations, to solve problems that are beyond the scope of any one discipline, to achieve unity of knowledge whether on a limited or grand scale” (thomson klein 1990, 11). whatever the definition we choose to employ might be, the proponents of interdisciplinarity recognize a need for a more holistic approach that will surpass the traditional division among disciplines. the way this will be achieved, as we have seen, is still undecided which leaves space for experimentation. however, what seems important is not to limit the scopes of interdisciplinarity just on ‘theoretical’ domain in which practitioners of two or more disciplines would work together, but also to transfer it into the field of practice, where, through mutual engagement, interdisciplinarity would be naturally achieved. legal clinics, i believe, have potential for such endeavor. *** clinical legal education as much as i have gained insight into legal clinics, firstly by taking part in one and then by attending a conference organized by the european network for clinical legal education (torino, september of 2018), it would seem that this form of education has a similar status as the concept of intedisciplinarity. its benefits are widely acknowledged, but a general consensus about how they should be organized, as well as a well-defined framework in which they should operate is still missing. even so, european countries have experienced an increase in numbers of such clinics in the past decade and as the driving reason could be perceived inadequacy of the usual model of legal education (stege and veglio 2018, 8). as the same authors observe, this comes down to the separation of education on theoretical and practical part, and maybe consequently, to the fact that “both law students and new generations of law teachers are unsatisfied with the way law is traditionally taught and how they are prepared for their professional career” (stege and veglio 2018, 8). when it comes to context of italy, clinics represent a relatively new occurrence in legal education, with the first one being established at the university of brescia in 2009, and first cle program dedicated to migration and asylum conducted at university roma tre in 2011 (stege and veglio 2018, 6). for comparison, the situation is similar in germany where, until 2008, clinics were not allowed by law but now represent “a fast developing field within german jurisdiction” (hannermann and dietlein 2018, 2). with the big influx of asylum seekers entering europe in recent years and with a great many of them finding themselves in a completely alien situation, where they require help not just with some common issues such as finding their way in an unknown environment, but also often need legal assistance, refugee law clinics have emerged as new type of legal clinic, with potential of breaching the gap between the actual need for different legal services asylum seekers have and the capacities of the authorities to provide them (hannemann and dietlein 2018). especially because beneficiaries of these kind of clinics do not require just legal but also more general type of help, refugee law clinics represent a good setting for involvement of students or professional practitioners of other disciplines. in the example of the refugee clinic of the hrmlc i would like to demonstrate how interdisciplinarity within the legal clinics could show potential and need for broader collaboration between disciplines; in this instance, i will try to demonstrate how the asylum system on a larger scale could potentially benefit from the mutual collaboration between law and anthropology. furthermore, i will argue that the human rights and migration law clinic’s practice has already shown a potential for such an endeavor and will try to analyze how to expand this practice further. iii. anthropologists and the clinic: a way of doing ethnography apart from attending the supervision meetings of anthropologists and listening to their discussions, i have also conducted interviews with some of the students for the purpose of determining their opinion and overall experience of the clinic. what will follow, therefore, represents my understanding and observation of their involvement in the entire process. supervision meeting notes since the first meeting it has become apparent to me that the experience anthropology students had was significantly different from my own, but, in a way, very ’anthropological’ in nature. the main concerns they have expressed came down to reflecting on their own role within the clinic, the purpose and usefulness of their anthropological knowledge, their role in ’discovering the truth’ (in terms of truthfulness of asylum seeker’s narratives) as well as reflecting on the asylum system on a larger level. it is in these meetings that i started to realize how much the experience of the clinic is valuable for them as anthropologists, as it provides them with the opportunity to apply the knowledge they are acquiring in the course of their studies, but also experience some of the main, primarily methodological and ethical, issues that exist within the discipline. in order to better understand the doubts and struggles anthropology students had, it is useful to have an insight into two major parts of ’doing anthropology’: fieldwork and the issue of representation. fieldwork fieldwork is one of the most important parts of anthropological research and it could be said that it is the discipline’s distinguishing characteristic. as orin starn in ‘writing cultures and life of anthropology” states: “…the premise that fieldwork is our distinguishing bedrock remains as powerful as ever a century now since its original mythical character in malinowski’s sweaty, disgruntled, libidinous trobriand tenting” (starn 2015, 5). traditionally, an anthropologist would go to ‘exotic’, non-western countries and do the ethnography there. at the time existed a prevailing idea that it is possible to understand and describe a ‘character’ of the non-western populations. this could be observed just by reading titles of classical anthropological monographs, such are: “coming of age at samoa: a psychological study of primitive adolescence for western civilization”, “balinese character: a photo analysis” and maybe most famously “argonauts of the western pacific: an account of native enterprise and adventure in the archipelagoes of melanesian new guinea”.[footnoteref:6] the produced ethnography would always as an audience have westerners; it could be argued, therefore, that what anthropological work at the time came down to was speaking in the name of their ‘exotic’ informants (who did not have a voice of their own) and representing them to the western public, which in that historical moment practically meant acknowledging their existence (see: clifford and marcus 1986). [6: in the order in which they have been listed: mead (1928), batson and mead (1942) and malinowski (1922). ] bronislaw malinowski is considered to be a pioneer of the participant observant method; the photo was taken during his fieldwork in the trobriand island.[footnoteref:7] [7: source: https://www.ecosia.org/images?q=bronislaw+malinowski#id=fe953759f605f29c2e6ec00946cf967a755a465e ] the crisis of representation “representation and the epistemological problems inherent to it are key anthropological problems of the twenty-first century. local people everywhere feel betrayed by anthropology. instead of studying identifiable, rooted communities, anthropologists have turned their attention to the theoretical construction underpinning the very ideas and practices sustaining the experiences of rootedness” (vargas-cetina 2013, 3). a big turning point, however, happened with the process of decolonization that took place in the second part of the 20th century; people anthropologists used to see as their informants started getting their own voice and speaking for themselves; it seemed there was no more need for anthropologists to “act as representatives” (vargas-cetina 2013, 4). apart from that, they have started voicing their opinion on the way they have been represented so far and making way to what is going to be known as ‘postcolonial critique’. this period of time has left a huge impact on anthropology as a discipline, as its traditional fieldwork has become out of reach and a large part of its body of knowledge has become compromised. it is during this time that the discipline experiences the so called ‘crisis of representation’. anthropologists prompted by postcolonial critique started questioning the power relations within their field, examining their own standing point. as vargas-cetina explains, “the representation crisis turned out to be more a moment of reflection (and, yes, a very important one) than a true crisis of the discipline. it has now resulted in new representation standards, self-monitoring practices, a higher awareness of the diversity of perspectives within anthropology, and the understanding of the ethnographers as themselves cultural beings, whose views are always colored by personal and epistemological circumstances” (vargas cetina 2013, 4). having this background in mind, i came to believe that the reflections the students have shared about their own experience with the clinic represent, in a way, textbook examples of the impact the above-mentioned crisis and the postmodernism have left on anthropology as a whole, and have continued to shape the generations of anthropologists years ahead. it is also what made me understand how authentic experience of conducting interviews with the anthropologist’s ‘traditional subjects’ (coming from radically different cultural backgrounds) clinic represents for them, with the main difference that before anthropologists would be the ones going to overseas countries and conducting their fieldwork there, while now the informants are coming to us, but we are still, in a way, the ones who are representing them. as introduction to the next chapter it is important to stress that i understood my role in the clinic as twofold; i had an anthropological background, but i was involved in the process as an iuc student that got a certain amount of training in international and european migration law; the work with asylum seekers i approached from this perspective, which might be the reason why i did not experience the clinic as other anthropologists did. i believe that this ‘dual position’ enabled me to experience both legal and anthropological approach, which in turn made me realize the existence of similarities between the two disciplines when compared in the context of asylum system. what i would like to argue, therefore, is that the work legal professionals are doing with the asylum seekers (coming from the non-western countries) has certain similarities to the one anthropologists were traditionally conducting, and comes down to ‘representing the other’. iv. representing the other[footnoteref:8]: legal versus anthropological approach [8: the concept of the other in this instance should be understood as twofold: 1) in relation to the fact that a great number of asylum seekers today is coming from non-western countries and has radically different socio-cultural background from the european one; 2) in terms of edward said who uses the opposition between orient and occident to describe the power relations in which the west is superior and the east inferior. the concept of the other, similarly, is connected to the idea of rationality of the west and irrationality and the general inferiority of the east (shahinaj 2012).] represent(used with a verb) to serve, to express, designate, stand for, or denote, as a word, symbol; to stand or act in the place of, as a substitute, proxy or agent does; to speak and act for by delegated authority[footnoteref:9] [9: retrieved from an online dictionary available at: https://www.dictionary.com/browse/representing ] the notion of representation bears significantly different connotation within law as compared to the one we saw it has in anthropology. within the legal field, to represent someone carries a certain well-established set of rules, obligations and protocols that all have legal consequences. when signing a power of attorney, a person gives his or her consent to another to speak or act in their name, again, within the defined set of rules. anthropological version of representation, as we have seen, carries a somewhat less strict code of conduct and it is more symbolic in terms that it is not legally abiding. another difference could be that in the first instance, lawyers are usually not concerned with cultural dimension in which the representation is taking place, whereas anthropologists, in order to make their ‘traditional exotic subjects’ understandable to their (western) audience need to make a certain amount of cultural translation, however loosely we understand the term. where anthropological and legal representation come in line is, i believe, in the very context of the asylum system, where the majority of asylum seekers is coming from non-western countries and is trying to get international protection based on western legal concepts (veglio 2017). it is then, i will argue, that lawyers intentionally or not need to make a certain amount of adjustments to the original narrative or story they get from their clients in order for it to fit the legal context and be more comprehensible to the territorial commission. based on my experience with the clinic, i will shortly outline the main similarities and differences that i have experienced through my above-mentioned ‘dual role’ in conducting interviews with the asylum seekers and producing a legal memo. interview the feeling of conducting interviews with asylum seekers versus doing the same as a part of anthropological research comes with the main difference, which is the purpose. while talking with the asylum seekers i remember clearly trying to focus on the elements of the story that will be useful in relation to the principles of international protection. the questions that i have chosen to pose were the ones i considered important in determining the basis on which the protection could be potentially claimed. in other words, although the asylum seekers did get the chance to tell their story the way they chose to, we have been focusing on the elements that are in line with the legal requirements. on the other hand, the approach i used to employ while conducting anthropological research was somewhat different. i knew the topic that i was interested in, but the level of my interference with the narrative was less apparent; i would leave bigger freedom to the informant to choose what he or she considers important and relevant answer to the posed question. this becomes even more apparent in relation to the fact of how we use the given information. in the case of anthropological research, the outcome can be more than one, but what usually happens is that ethnographic material will be used to produce a paper or a book. the goal should be to stay truthful to the original narrative that has been acquired during the interview. on the other hand, in the asylum process there is already fixed form that needs to be respected. the legal memo, although until certain extent left to lawyers to decide how it will be conceptualized, represents already given framework in which the narrative needs to be situated. what is happening essentially is that the life story of the asylum seeker, that has been shaped in a context completely different from our own, needs to be adjusted in order to fit the western legal framework. one of the telling examples that we have experienced is that the asylum seekers do not think chronologically as it is expected in european context, or they do not give the same significance to years. in order for the claim to be credible (which is the key word in the asylum application), the story needs to be coherent and linear; it is in this instance that i see the legal representation encompassing its boundaries and crossing into the field of cultural translation. in order to represent their client justly, the lawyers need to be sensitive to cultural backgrounds they are coming from, as well as to the way their story will be received and interpreted by the territorial commission, who, despite its presumed training, is thinking in european terms. therefore, while trying to make the narrative the most credible they might end up inevitably changing it. based on my observations during the work with the asylum seekers, i would like to demonstrate that there is a space within the asylum system that can be explored in two ways: one is in terms of role that anthropologists could play within it; and the other in terms of potential collaboration between anthropological and legal approach in rethinking the process of asylum application. v. asylum system in metamorphosis: the (potential) role of anthropologists if the asylum system is going through a change then what could be a potential role that anthropologists could play in it? i believe that the practice of this clinic has pointed out several directions in which the discipline could contribute to creating a system that is more comprehensible and appropriate for the seekers coming from different cultural backgrounds. in this case, i will just shortly outline the main ways i see this potential use of anthropology could happen: country of origin information ‘for claims under the 1951 convention to be fairly evaluated, applicants’ stories must be placed within their cultural, socio-economic, and historical contexts.’ (unhcr 1992: ¶42; barsky 2000: 58) in the setting of the modern asylum system in which, as it has been already mentioned, a great number of asylum seekers are coming from the non-western and, to the decision makers unknown cultural systems, the coi is one of the pivotal elements to the just assessment of the asylum claim, as it helps to contextualize the asylum seekers story (see: good 2006). in countries with common law systems, such are the uk, australia and canada, there are some instances of anthropologists being employed as “country of origin experts”, but this is limited in scope, as it mainly refers to the judicial part in which they are invited to “testify” as experts (kalin 1986, 230). when it comes to the broader european context (mainly the common european asylum system), the coi is considered as equally important and usually provided (by combining and systematizing already existing rapports) by different governmental institutions, or by several existing ngo’s that provide systematized country of origin information to the relevant governmental bodies.[footnoteref:10] what they have in common, however, is that their rapports are very general and focus on certain key points considered as relevant for the asylum seeking process (human rights climate, detention procedures, conflict etc) which leads to there reports being limited in scope, and sometimes, hardly connectable to the asylum seekers individual life story.[footnoteref:11] [10: researching country of origin information: training manual. accord, 2013. p 11.] [11: additional limitations of the country of origin information that is produces in this manner is that “the evidence is often inconclusive, often too generic or doesn’t exist at all.” for more information: researching country of origin information: training manual. accord, 2013. p 11.] anthropology as a discipline that has been historically involved in studying, understanding and comparing diverse cultural systems has built a significant body of knowledge as well as methodologies that could be potentially used within the asylum system today. the biggest potential applicability of anthropology in this instance could be regarding the research of the “country of origin information”, as one of the basic principles on which the discipline is postulated presupposes conducting the fieldwork and creating a more specific and usually descriptive body of knowledge, that could be used to encompass the perceived limitations of the current coi system. in practical terms, one of the ways in which this could be achieved is either by anthropologists becoming ‘specialized’ for certain countries from which a large number of asylum seekers is coming from (by conducting a fieldwork there) or by using already existing body of knowledge that can account more for different cultural aspects that could be relevant in determining the credibility of specific asylum applications. cultural expertise and mediation an interest for cultural expertise in legal proceedings comes in the time when academic community is expressing deeper interest in the study of law and culture (holden 2011, xvii). the book “cultural exeprtise and litigation“ edited by dr livia holden shows examples of several first hand experiences of anthropologists taking part in civil as well as criminal proceedings, with the focus on interaction that is taking place “between the legal practitioners, the people involved in the case and the expert or cultural mediator” (holden 2011, xviii). at this moment, dr holden is supervising a european level research project titled “cultural expertise in europe-what is it useful for?” which aims to assess the use and impact of cultural expertise in fourteen european countries, with the aim of creating an “integrated concept of cultural expertise by adopting a historiographical perspective which opens up anthropological and socio-legal discussions”.[footnoteref:12] [12: see: https://www.law.ox.ac.uk/research-and-subject-groups/cultural-expertise-europe-what-useful] even closer to our area of interest is the research conducted by anthony good within the uk, that investigated “legal process of claiming asylum from anthropological perspective“ (good 2006, 2). his book titled “anthropology and expertise in asylum courts“, based on field observation of more than 300 asylum hearings, provides an insight into the way anthropologists could contribute, apart from the above mentioned role in providing expertise on ’country of origin information’ (good 2006). as he states, “even though anthropologists are, according to one very influential view, first and foremost interpreters of cultures (geertz 1973), the instructions they receive are usually concerned more with exploring the histories and polities of applicants’ countries of origin than with eliciting insights into their particular cultural backgrounds. by contrast, virtually every asylum hearing requires interpretation in a narrower and more literal sense” (good 2006, 153). in the asylum hearings in which the asylum seeker is speaking language different from the one of the commission, interpreters are also present; what is very often happening, however, is that these interpreters need to take upon roles of cultural mediators as well, in the cases when they observe there is a misunderstanding between the participants in the hearings (good 2006, 153-188). however, as official guidelines on this kind of mediation do not exist, interpreters involvement in such mediation is left to their own assessment as well as actual expertise, which might not be adequate and can lead up to making bigger confusion (good 2006, 171). although, as good remarks, “this is an area where one might expect anthropologists to come fully into their own, their role is normally limited to commenting on any such matters…” further he claims, “even if they attend hearings to give oral evidence, the exigencies of procedure may prevent them from addressing fully, if at all, any cultural misunderstandings arising during the hearing itself” (good 2006, 170). consequently, by creating space for anthropologists within asylum hearings, the perceived cultural misunderstandings could be potentially reduced. academia finally, anthropologists and other practitioners of social sciences do not need to necessarily become involved in the very system of asylum in order to improve it and/or change it. academic work still represents an area through which social change can occur, although this seems to be difficult without the existence of political will. also, knowledge and insights produced through academic work do not necessarily need to be applied in order to be valuable, and the current ‘refugee crisis’ provides great potential for different theoretical and intellectual endeavors. in any case, with the popularity of the topic, the body of knowledge related to it continues to grow. for instance, some approaches being already employed by anthropologists go in line with describing “politics of trauma within political asylum system” (see: das 2007), assessing narratives of the asylum seekers (beneduce 2015) or imagining space for anthropology within asylum proceedings (sorgoni 2015), just to mention few examples of a very diverse area. more ambitiously, if broader geopolitical context ever allows for rethinking and changing the basis of the international protection as it exists today (as there is an opinion that its cornerstone, the geneva convention related to status of refugees, needs to account more for different reasons people would need or seek international protection), using anthropological, as well as input of other social sciences, that are already producing knowledge about the field, could contribute to creating more just and appropriate system. vi. anthropology and law expanding the scopes of interdisciplinarity: a proposal at first hand, the connection between law and anthropology does not seem obvious; however, as good observes, many of the ‘first’ anthropologists were lawyers by profession, “lewis henry morgan, henry maine, john mclennan – and there is an obvious overlap between law and an anthropological interest in ‘custom’” (good 2006, 15). moreover, the area of comparative law, for example, could be argued is very close to the anthropological field (see: frankenberg 2016). the long history, therefore, that law and anthropology had, has created a broad and interesting area that can still be explored and expanded (see: good 2006, 15-14; frankenberg 2016). however, the perspective for which we will be interested in here concerns the legal and anthropological representation or the anthropological analysis of legal representation. apart from my own reflection on the process of providing legal services to the asylum seekers that has been outlined in the fourth part of this paper, there are also some academic papers written about the same issue. dr. david zammit, from the university of malta, for example, has conducted his doctoral research on the “daily practice of maltese lawyers and the representation occurring in courts” (zammit 1998, 13). as he states, “studying legal representation means looking at the relationships and activities through which the stories initially told by clients to lawyers are translated to ‘facts’ during litigation” (zammit 1998, 13). moreover, he claims that, “lawyers can be seen to occupy a culturally intermediate position between their clients and the courts and their legal representation as the attempt to symbolically mediate between these two charged pools. this is, in short, the zone of intersection and confrontation, where legal rules produce their social effects and social processes animate and reinterpret legal rules” (zammit 1998, 14). it is in the scope of this perceived mediation that i would like to situate a proposal for a new practice within the clinic, as i believe that this observed mediation that lawyers are doing is even more apparent in the area of asylum system and that the clinic could be used as a means of testing how much legal representation in this field is similar to the anthropological one. *** interdisciplinary work, so much discussed these days, is not about confronting already constituted disciplines (none of which, in fact, is willing to let itself go). to do something interdisciplinary, it is not enough just to choose a subject (a theme) and gather around it two or three sciences. interdisciplinarity consists of creating a new object that belongs to no one. the way the hrmlc is organized now already represents a step in the right direction in terms of interdisciplinarity. recognizing the need for cultural mediation organizers have decided to involve the students of anthropology. however, i believe this involvement could be extended and expanded, and the potential of this should be exploited further. anthropologists in the clinic already reflect on their own role and examine in a way the power relations that exist with the representation of this kind. it has been argued that their way of thinking is part of anthropological training that is, in turn, a product of a specific period in the development of the discipline. it is in this instance, that this thought could be explored further. the way it is postulated now, the clinic does leave a lot of space for reflections of different kinds. each group has had several supervising meetings during the course of their activities in which they could elaborate on their experience, and talk about eventual difficulties they would encounter. anthropologists, as it has been already mentioned, had separate meetings with their professor; if i did not decide to attend them, i probably would not have an insight into their experience as i do now. and it is my impression that it is the same with the rest of the students. interdisciplinarity exists, but the students still in a way stay in their own ’lanes’ and do not try to explore each other viewpoints and approaches to the same issue. it is, therefore, that i would suggest creating a special group or a type of supervision in which both students of law and anthropology would participate. they would be encouraged to reflect on the way each of their disciplines is approaching the work with the asylum seekers and to try to understand and embrace the viewpoint of the other. it could be expected that, for example, students of law become more aware of the cultural representation that they are maybe unaware doing an anthropologist to get a certain structure and limit their thinking within a certain scope. the main goal would be to try and test the two above-mentioned hypothesis: first of all, that this kind of interdisciplinarity is beneficial for students with both backgrounds (by assessing, for example, how much students of law feel the contribution of anthropologists, and if). and secondly, maybe more ambitiously but potentially more rewarding, to get the students to work together, to delete the division between them and to really put in practice the above-mentioned opinion that the asylum system could potentially benefit from a collaboration between law and anthropology. the students could be encouraged to try and think about the way in which their approaches could be merged into one and to see how they can benefit from each other. without trying to be overly ambitious, this kind of endeavor could be a good next step in the clinic’s practice. it could show how interdisciplinarity can be achieved, not just through theoretical, but also practical engagement and maybe read some new and interesting insight into the way we approach work with the asylum seekers. the proposed meetings should be monitored and final rapport should be made, indicating whether this kind of engagement can have a positive impact on students as well as, potentially, offer an alternative way for approaching work with asylum seekers within refugee law clinics. vii. concluding remarks the idea that this paper tried to convey is twofold: first of all that traditionally understood clinical legal education should not be reserved just for students of law, but should also involve students and practitioners of other disciplines; this kind of practice can yield positive result for all parties involved and also benefit the entire performance of the clinic in question. secondly, the paper was based on the particular example of the human rights and migration law clinic of torino, that employs interdisciplinary approach and involves students with different backgrounds. the special emphasis was put on the fact that it is conducted in cooperation with the anthropology department of the university of turin, and that anthropology students also play part in the work. the reflection students had, as well as my own experience of working with asylum seekers within the clinic, have made me realize the potential that exists within the system for a more systematic involvement of anthropologists, which i have shortly outlined. moreover, based on my dual role within the clinic, i have tried to convey the idea that legal and anthropological representation have certain common elements, especially when it comes to working with clients/informants coming from different cultural systems. finally, a proposal for expanding and exploring further this kind of interdisciplinarity was made, with the overall goal of providing students with the opportunity to broaden their experience and while doing so, potentially participate in creating a new approach that would encompass traditionally divided disciplines and cross into the domain of true interdisciplinarity. references batson, gregory and margaret mead. 1942. balinese character: a photographic analysis. new york: new york academy of sciences beneduce, roberto. 2017. “the moral economy of lying: subjectcraft, narrative capital, and uncertainty in the politics of asylum.“ medical anthropology, 34-6. clifford, james. and george e. marcus, eds. writing culture: the poetics and politics of ethnography. berkley: university of california press. fassin, didier and estelle d’halluin.2009. critical evidence: the politics of trauma in french asylum policies. ethos vol.35, issue 3 (300-329). good, anthony. 2006. anthropology and expertise in asylum courts. oxford: reutlege holden, livia. ed. 2011. cultural expertise and litigation: conflicts, patterns and narratives. new york: reutlege hannermann, jan-gero and georg dietlein. 2018. “the development of refugee law clinics in germany in view of the refugee crisis in europe.“ international journal of clinical legal education. vol.25, no 2 (160-184). klein, thompson julie. 1990. interdisciplinarity: theory, history and practice. detroit: wayne state university press. said, edward. 1997. orientalism. london: penguin books. sorgoni, barbara. 2015. anthropology and asylum procedures and policies in italy. in: tauber, elisabeth and zinn dorothy. the public value of anthropology: engaging critical social issues through ethnography. bolzano: free university press of bolzano shahinaj, eleonora. the construction of the other in said’s orientalism and fanon’s black skin white masks https://www.academia.edu/5033172/the_construction_of_the_other_in_saids_orientalism_and_fanons_black_skin_white_masks stege, ulrich and maurizio veglio. 2018. “on the front line of the migration crisis: human rights and migration law clinic (hrmlc) of turin”.in alemanno, alberto and lamin khadar.eds. reinventing legal education: how clinical education is reforming the teaching and practice of law in europe. cambridge: cambridge university press mead, margaret. 1928. coming of age at samoa: a psychological study of primitive youth for western civilization . new york: william morrow and co. malinowski, bronislaw. 1922. argonauts of the western pacific. george rutledge and sons starn, orin, ed. 2015. writing culture and life of anthropology. durham: duke university press vergas-cetina, gabriel. 2013. anthropology and the politics of representation. tuscaloosa: university of alabama press. veglio, maurizio. 2017. “uomini tradotti. prove di dialogo con richidieti asilo.“ dirito, imigrazione e cittadinanza, n.2 (1-41). 117 integrating two measures of quality practice into clinical and practical legal education assessment: good client interviewing and effective community legal education reviewed article: teaching and learning in clinic integrating two measures of quality practice into clinical and practical legal education assessment: good client interviewing and effective community legal education liz curran and tony foley australian national university, canberra, australia liz.curran@lanu.edu.au introduction this paper will examine, through two case studies (an undergraduate clinical program and a practical legal education (ple) advice clinic) the scope for indicators developed by curran to assess the outcomes, effectiveness and quality of legal assistance services1 in australia to be used in clinical assessment. this article will explore how two particular indicators evaluated as fundamental in that research might be utilised to assess students so as to enhance the quality of their clinical participation. clinical legal education is seen by its adherents as ‘a premier method of learning and teaching. its intensive, one-on-one or small group nature can allow students to apply legal theory and develop their lawyering skills to solve client legal problems. its teaching pedagogy is distinguished by a system of self-critique and supervisory 1 in the national partnership agreement between the commonwealth and state and territory governments legal assistance services are defined as legal services provided by legal aid commissions, community legal centres, aboriginal and torres strait islander legal services and family violence prevention services. australia has what is termed a mixed model of service delivery in terms of legal aid commissions as they have both inhouse staff doing legal work and private practitioners with grants of aid. 69 mailto:liz.curran@lanu.edu.au feedback enabling law students to learn how to learn from their experiences’.2 in many senses it is a form of experiential learning through engagement with the practice of law.3 it aims to contextualise the study of law and draw on student learning in other courses to guide and support them in identifying, developing and applying ethical legal practice skills. but its scope is much wider than simply ‘skills’, it also aims to develop students’ critical understanding of approaches to legal practice, to their understanding of the roles of lawyers in relation to individual clients and social justice issues and to encourage and as a means to validate student aspirations to promote access to justice and equality through the law. we suggest ways to assess the quality of such engagement by clinical students, focusing on curran’s core quality measures of ‘a good client interview’ and ‘quality community legal education’. the value of utilising these two indicators to assess the quality of student engagement is that they themselves are core to the activities in which students are involved in clinic. background involvement in client interviewing in varying degrees and in the provision of community legal education through direct community engagement such as in street 2a evans, a cody, a copeland, j giddings, m noone, la trobe university, s rice, australian national university best practices in clinical legal education, australian government office for learning and teaching, september 2012, 4. (http://www.cald.asn.au/assets/lists/resources/best_practices_australian_clinical_legal_education_sept_20 12.pdf) accessed 29/11/13. 3 ‘clinical legal education guide, your guide to clinical legal education courses offered by australian universities in 2011 and 2013’, university of new south wales. (http://www.klc.unsw.edu.au/sites/klc.unsw.edu.au/files/doc/ebulletins/cle_guide_2011_12.pdf) accessed 2/12/13. 70 http://www.cald.asn.au/assets/lists/resources/best_practices_australian_clinical_legal_education_sept_2012.pdf http://www.cald.asn.au/assets/lists/resources/best_practices_australian_clinical_legal_education_sept_2012.pdf http://www.klc.unsw.edu.au/sites/klc.unsw.edu.au/files/doc/ebulletins/cle_guide_2011_12.pdf law programs is now common in australia, the united states4 and south africa5 and is expanding into many other countries.6 it is for this reason that ensuring quality in client interviewing conducted by students and community legal education should be part of student assessment. in addition in australia, practical legal education (ple) courses (like the graduate diploma in legal practice (gdlp) program in which the authors also teach) prepare graduates of law for admission to practice with a more distinct focus on practiceready skills. such programs seek to ensure that entry level lawyers reach required levels of competency as prescribed by the competency standards for entry level lawyers7 of the law admissions consultative committee and australian professional legal education council. 8 in other jurisdictions such as the united kingdom, there is a similar requirement for law graduates seeking admission to complete the legal practice course which lasts one year followed by a two-year apprenticeship, during which the trainee solicitor has to complete a professional skills course.9 scotland takes a similar form of a diploma in legal practice (one year), and completion of a two-year apprenticeship together with the professional competence course in accordance with the law society of scotland's professional 4 for example, the university of washington, (http://www.law.washington.edu/clinics/streetlaw/) 5 d mcquoid-mason, ‘street law as a clinical program the south african experience with particular reference to the university of kwazulu-natel, 17 griffith law review, 2008, 27. 6 p maisel, ‘expanding and sustaining cle in developing countries, what we can learn from south africa’, vol 30 (2) fordham international law journal, 2006, 384. (http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2044&context=ilj) accessed 2/12/13. 7 australasian professional legal education council and law admissions consultative committee, competency standards for entry level lawyers, november 2000 (updated february 2002). (http://www.aplec.asn.au/pdf/competency_standards_for_entry_level_lawyers.pdf) accessed 2/12/13 8 (http://www.aplec.asn.au/aplec/dsp_resources.cfm) accessed 2/12/13. 9 (http://www.lawsociety.org.uk/careers/becoming-a-solicitor/routes-to-qualifying/) accessed 2/12/13. 71 http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2044&context=ilj http://www.aplec.asn.au/pdf/competency_standards_for_entry_level_lawyers.pdf http://www.aplec.asn.au/aplec/dsp_resources.cfm http://www.lawsociety.org.uk/careers/becoming-a-solicitor/routes-to-qualifying/ education and training stage 1 (peat 1).10 the same model is followed in new zealand and other southern hemisphere countries.11 these competency-based programs all have the distinctive mission to equip trainees with practice-ready skills and knowledge and so are fundamentally different in kind and nature from clinical programs. in seeking to find measures to gauge the quality of student engagement in such clinical and ple programs we draw upon recent research by curran examining what leads to ‘effective outcomes’ and ‘quality legal service’ in the context of public legal services (legal aid, community legal centres, family violence services and aboriginal and torres strait islander services). from 2011 2013, curran conducted research into what constitutes a ‘successful outcome’12 and quality legal aid services and how to measure these on behalf of legal aid act13, the commonwealth government’s attorney general’s department14 and consumer action law centre with the 10 (http://www.lawscot.org.uk/media/561669/peat%201%20guidelines.pdf) accessed 2/12/13. 11 see fiji (http://www.unifiji.ac.fj/undergraduate-study/graduate-diploma-in-legal-practice-2/) accessed 2/12/13 and new zealand ( http://www.lawsociety.org.nz/for-lawyers/joining-the-legal-profession/admission) accessed 2/12/13. 12 the national partnership agreement signed by the commonwealth government and each state and territory government for the funding legal aid commissions, and which came into effect on 1 july 2010 talks in terms of ‘successful outcomes’. (http://www.ag.gov.au/legalsystem/legalaidprograms/documents/national%20partnership%20agreement% 20on%20legal%20assistance%20services.pdf) accessed 9 december 2013 13 l curran, ‘i can see now there’s light at the end of the tunnel’ legal aid act: demonstrating and ensuring quality service to clients, legal aid act, 2012 (http://www.legalaidact.org.au/pdf/light_at_the_end_of_the_tunnel_legal_aid_services_quality_and_outc omes.pdf) accessed 9 december 2013 14 ‘a literature review: examining the literature on how to measure the ‘successful outcomes’: quality, effectiveness and efficiency of legal assistance services, attorney general’s department, 2012. (http://www.ag.gov.au/legalaid/.../lit%20review%20%20final.doc) accessed 9 december 2013 72 http://www.lawscot.org.uk/media/561669/peat%201%20guidelines.pdf http://www.unifiji.ac.fj/undergraduate-study/graduate-diploma-in-legal-practice-2/ http://www.lawsociety.org.nz/for-lawyers/joining-the-legal-profession/admission http://www.ag.gov.au/legalsystem/legalaidprograms/documents/national%20partnership%20agreement%20on%20legal%20assistance%20services.pdf http://www.ag.gov.au/legalsystem/legalaidprograms/documents/national%20partnership%20agreement%20on%20legal%20assistance%20services.pdf http://www.legalaidact.org.au/pdf/light_at_the_end_of_the_tunnel_legal_aid_services_quality_and_outcomes.pdf http://www.legalaidact.org.au/pdf/light_at_the_end_of_the_tunnel_legal_aid_services_quality_and_outcomes.pdf http://www.ag.gov.au/legalaid/.../lit%20review%20%20final.doc footscray community legal service.15 this research has since been the subject of academic discussion (in the united kingdom,16 the netherlands,17 and canada18), practical application (by various services [legal and non-legal] across australia, by law clinics ontario and legal aid ontario19) and interest from external agencies (e.g. the world bank.20). our surmise is that the robust measures developed in that research might have a place in student assessment in clinical and ple programs as a way to enhance student learning and build capacity in students to be mindful of quality and impact. we considered how existing assessment and learning outcomes might be adapted to incorporate indicators of quality practice in both the interviewing of clients and in the delivery of community education. our two sites were a clinical youth law course and a ple advice clinic. the clinical site is a course which operates within a youth law centre (ylc) which provides free and confidential advice to young people aged 12-25 and outreach and 15 l curran, ‘encouraging good practice in measuring effectiveness in the legal service sector’, may 2013. (http://www.law.anu.edu.au/legalworkshop-gdlp/publications) and (http://consumeraction.org.au/reportencouraging-good-practice-in-measuring-effectiveness-in-the-legal-service-sector/) accessed 9 december 2013 16 l curran, ‘the challenges of measuring outcomes – examining quality, responsiveness and legal professionalism as a way forward’, legal research centre’s international research conference, 2012, rights and wrongs: developments in access to justice, magdalen college, oxford, united kingdom, september, 2012. (http://www.justice.gov.uk/downloads/about/lsrc/conference-booklet-2012.pdf). 17 a crockett and l curran, conference paper international legal aid group conference, a practical model for measuring effectiveness.., the hague, june 2013. (http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/the_hague_2013/session_papers/sessio n_3_-_liz_curran_and_andrew_crockett.pdf). 18 access to justice metrics: envisioning equal justice, a discussion paper, the canadian bar association, april 2013, (http://www.cba.org/cba/access/pdf/access_to_justice_metrics.pdf). 19 see also law clinics ontario. (http://www.plelearningexchange.ca/promising-practices-and-tools/) accessed 9 december 2013 20 email communication to curran (16 july 2013) with paul prettitore of the world bank requesting details of the research undertaken for legal aid act. 73 http://www.law.anu.edu.au/legalworkshop-gdlp/publications http://consumeraction.org.au/report-encouraging-good-practice-in-measuring-effectiveness-in-the-legal-service-sector/ http://consumeraction.org.au/report-encouraging-good-practice-in-measuring-effectiveness-in-the-legal-service-sector/ http://www.cba.org/cba/access/pdf/access_to_justice_metrics.pdf http://www.plelearningexchange.ca/promising-practices-and-tools/ community legal education to schools, technical colleges and to non-legal youth agencies. while the legal advice is provided directly, much of the community legal education is provided to secondary youth agencies. research suggests that many vulnerable and disadvantaged people (which is typically legal aid’s client demographic) do not contact a lawyer because of perception and access barriers.21 the cle focus is therefore directed to non-legal agencies and youth workers who can be trained to help overcome these barriers.22 the ple site is a course which operates in the form of a legal advice clinic as part of the act legal aid office’s ‘advice and minor assistance’ activities. the lac program is intended to expose students to social justice issues through direct contact with disadvantaged clients and to provide students with "hands on" legal experience, principally through interviewing and interview follow-up, in the period just before they are admitted as practitioners. the authors maintain that lessons from the research on measuring quality legal services and outcomes can be adapted to enable clinical and ple students in these settings to provide an enhanced experience of the law in practice. 23 these two 21 christine coumarelos et al, ‘legal australia-wide survey: legal need in australia’ (report, law and justice foundation of new south wales, (august 2012) <http://www.lawfoundation.net.au/ljf/app/6ddf12f188975ac9ca257a910006089d.html> and m schwarz, f allison and c cunneen, 'a report of the australian indigenous legal needs project', cairns, james cook university (2013) <http://www.jcu.edu.au/ilnp/public/groups/everyone/documents/technical_report/jcu_131180.pdf> accessed 17 january 2014 and m schwarz, f allison and c cunneen 'the civil and family law needs of indigenous people in victoria', cairns, james cook university (2013). 22 buck and l curran, ‘delivery of advice to marginalised and vulnerable people: the need for innovative approaches’, public space: the journal of law and social justice vol. 3, art. 7 (2009), 1-29. 23 see also j leiper, ‘transnationalising legal education: nurturing commitment in the legal profession: student experiences with the osgoode public interest requirement’ 2009 vol 10 no 7, german law review, 74 http://www.lawfoundation.net.au/ljf/app/6ddf12f188975ac9ca257a910006089d.html http://www.jcu.edu.au/ilnp/public/groups/everyone/documents/technical_report/jcu_131180.pdf groups of programs – clinical and ple – are substantially different in nature and aims. clinical programs are designed to provide opportunities for law students to critically examine the operation of the law “on the ground”. practical legal education placement programs are designed to provide opportunities to acquire practice-ready skills. as such what is being assessed in terms of student performance is likely to be substantially different in each program, but nevertheless measures of quality as regards the delivery of client services remain important for both. the balance of this paper will explore how this might be done. this article focuses only on those elements of curran’s research that are specifically relevant to the experiential learning of students either in a clinical context, placement context or simulated client practical legal training scenario. assessment processes now usually rely only on students’ own perceptions as to how effective an interview seemed to them or how useful and practical they felt a legal education or street law session had been. more independent approaches than self-critiquing are usually confined to peer or supervisor observation with little use of client feedback. but we consider feedback from clients involved in the interviewing or cle session fits well within the scope of exemplars of best clinical practice such as stuckey and colleagues’ ‘road map’.24 this notes the importance of balancing student autonomy with client protection.25 we accept their strong stress on the role of supervision and 1087 – 1094, 1094 which examines the relationship of students in watching lawyers and come students exposure to the difficulties of facing real life circumstances of legal practice. 24 r stuckey and others, ‘best practices for legal education’, clinical legal education association, 2007. 25 above note 24, 195. 75 teaching in practice environments that never loses sight of ‘the requirement that no client be subjected to incompetent representation’.26 as a further protection clinical and ple students are subject to legal aid act’s practice standards. students are required to adhere to these standards. the culture instilled is around their responsibility as lawyers and the need to adhere to standard in order to ensure accurate and relevant advice to real clients. 1. using the first measure of quality – fostering students in the conduct of a ‘good client interview’ a good client interview work undertaken in scotland27 highlights the importance of focusing students on the critical nature of their role as lawyers in client interviews and the importance of their interaction with clients. the concern of the authors is that monitoring progress in this area should not simply be left to student’s perceptions. self-reflection though important is not sufficient. some external method of gaining feedback on how effective the interaction has been from the client’s point of view can add an important perspective. we suggest a protocol of brief questioning of clients post-interview as to their level of satisfaction with the interaction. in some clinics and ple settings a supervisor may also sit in on an interview and be in a position to provide post-interview feedback. 26 above note 24,195. 27 k barton, d clark cunningham, g t jones and p maharg, valuing what clients think: standardised clients and the assessment of communicative competence, 13 clinical l rev 1 (fall, 2006), 33-50. 76 in curran’s research on behalf of legal aid act broad methods of obtaining feedback were utilised, including focus groups and stakeholder interviews, interviews with legal aid staff, interviews with clients and others involved in criminal, family or civil disputes. participants were asked to define outcomes that were both “positive” and “within your control to achieve”. the results suggest that a positive outcome was seen more in terms of the processes that the lawyer, staff and client go through rather than simply focusing on the advice given or the end result of a case. the data revealed certain “positive” outcomes seen as critical; most importantly for our purposes these include an effective client interview. in practice terms, an initial interview can impact on later follow-up interviews or contacts, rapport, trust, confidence, as well as the conduct of any litigation or negotiations that may follow. we suggest clinical and ple students ought to be taught and assessed on the conduct of an effective interview given so much turns on it in legal practice. for clinical students, the primary importance is the insights examining this interaction can provide in terms of seeing the law in action. for ple students, its value is more pressing in terms of preparing them as effective entry level lawyers. another “positive” aspect in terms of a good outcome identified in the curran research is the importance that clients placed on the level of non-legal support they were provided with. for clients with a mental illness, with drug or alcohol addiction, who are homeless or live chaotic lives, practical support in terms of personal management was seen as critical. for such clients, a positive outcome might well be 77 that they attend their legal aid appointment or advises legal aid staff of a new mobile phone number or address. this support work is seen as critical and highlights the multifarious roles a lawyer needs to take in order to deliver legal advice. evans and colleagues argue that the skills training provided to clinical students should incorporate a client focussed approach which would include inculcating such an awareness of the subjective circumstances of clients and the specific access to justice barriers (e.g. cultural barriers and communication strategies) they face.28 we agree that students in clinical and ple programs need to be taught such a client focussed approach to practice. assessing a good client interview if as the curran research suggests, a legal interview is pivotal in providing quality legal service and leading to a successful outcome then, how might the measuring of a quality legal interview translate when students are delivering legal assistance under supervision? there is a well-developed literature on the elements that constitute an effective legal interview. wolski, field and bahrij29 examine the nature and processes of participatory, client-focussed interviewing and chay and smith30 further unpack the staged process for a good interview. wolski and colleagues 28 above note 2, 15. 29 b wolski, d field and j bahrij ‘legal skills: a practical guide for students’, (thompson and legal regulatory, 2006) chapter 2 59116. 30 a chay and j smith, ‘legal interviewing in practice’, (law book co. , north ryde, 1996). 78 underline the importance of a shared understanding of roles and responsibilities, managing expectations, providing clear communication, focusing on problem solving, maintaining ethical values and responsibilities and dealing sympathetically with clients’ needs, especially those with special needs. they discuss the underlining need for co-operation and trust between lawyer and client, for real client participation, for the lawyer to probe deeply but respectfully, so as to reassure clients that they are heard and understood and to obtain accurate instructions and provide accurate advice. similarly, there is empirical research as to the presence of such qualities in the client interviews conducted by practising lawyers. moorhead and robinson31 conducted interviews with lawyers and clients after an initial consultation. follow-up interviews were then conducted six months later as the lawyer-client relationship developed. in the worst cases they found that, even after six months, the lawyer had still not identified the issue for which the clients said they were seeking assistance. the study remarked on lawyers’ poor listening skills, their lack of fact checking and their lack of understanding regarding client needs. kreiger has highlighted in his own empirical work the potential of clinic to make students ‘more adept at exploring client interests and determining next steps to take in a case’ and in imparting the ability to identify legal rules applicable to a problem.32 31 r moorhead, m robinson and matrix research and consultancy, a trouble shared: legal problems clusters in solicitors’ and advice agencies (london: department of constitutional affairs, 2006). 32 s h kreiger, ‘the effect of clinical legal education on law students: an empirical study, 2008 vol 35:1, william mitchell law review, 359-400 at 397. 79 this research provides the groundwork for the specific skills relevant to the conduct of a good client interview. curran’s work sought to develop a set of indicators as to whether a good legal interview has occurred. these are now being used with adaptations to suit consumer action law centre in the evaluation of its advice line and in an evaluation of a medico-legal alliance in the rural bendigo region of victoria, in south eastern australia. it is suggested that the indicators can also be utilised in assessing students in clinical and ple programs. a short form interview of clinical clients post-interview might include the following set of questions: • did the interviewing student lawyer listen as you explained your situation? • did the student lawyer make you feel safe, comfortable and respected during the interview? • did the student lawyer ask questions that extracted all you think they needed to know and did they check with you to see they had understood what you told them? • did the student lawyer give you an opportunity to ask questions or clarify all you wanted to know? • did the student lawyer give you an opportunity to ask questions or clarify all you wanted to know? • did the student lawyer explain how the law affects your problem, the various options open to you, and what might happen next in a way that you could understand? • do you feel: a. you understand what to do next? b. you understand what steps you need to take? c. you understand what steps the lawyer will/will not take and why? d. you understand all the options open to you? • would you feel comfortable seeking help from this lawyer again if required?33 33 these questions have been adapted to suit a clinical/ple context but are based on questions from curran, above note 13. 80 many of the questions intersect with those used by barton and colleagues34 as a basis for constructive feedback to students on the effectiveness of their simulated interviewing in ple programs. case study of client interviewing: the legal advice clinicple students the legal aid clinic program (lac) provides one option for students to satisfy the legal placement experience requirements of their ple study. lac is conducted at the act legal aid office in canberra and the program is integrated into legal aid's "advice and minor assistance" activities. the lac program is intended to expose students to social justice issues through direct contact with legal aid clients and to provide students with "hands on" legal experience, principally through interviewing and interview follow-up, just before they are admitted as practitioners. lac is a clinical program running since 1996 and has been the subject of earlier research as an example of the delivery of minor assistance follow up work.35 client interviews follow a standard methodology designed to expose students to live client contact whilst recognising that they are unlikely to have relevant legal content knowledge and are not permitted to give legal advice. each student meets the client and conducts a "pre-interview" where their task essentially is to determine the 34 above note 27, 33-50. 35 harrison, j, holmes, v, rowe, m, foley, t, sutherland, p ‘capacity of a clinical program to provide 'minor assistance' within the structure of a legal aid commission, paper presented to the 3rd international journal of clinical legal education/8th aust. clinical legal education conference, melbourne, 13-15 july 2005 81 nature of the legal problem presented by the client. the pre-interview is primarily intended to allow the student to test their interview skills in a totally open, live client situation. the solicitor/instructor then enters the interview room, is briefed by the student as to the client’s ‘legal problem’ in the client’s presence and then continues the interview (which may or may not include legal advice) in the presence of the student. the student may be called upon in the interview to comment or assist and will be required to undertake, under supervision, any follow-up work from the interview. the student prepares a file note of the interview for legal aid records. feedback to students on their performance is an important part of the lac program and it may be that this provides supervisors with an opportunity to incorporate some of the questions suggested above into their feedback to students. additionally, there is scope to select appropriate questions from those suggested above to ask the client upon exiting the interview. this would provide additional feedback for the student as to whether the client saw the interview as effective. student evaluation reports over the life of the lac program identify interviewing exposure as one of its most valuable learning experience (typical comments in 2013 course evaluations include ‘a great experience in making chronological notes, interviewing clients, watching supervisors give advice’, ‘very valuable experience interviewing clients, never had this experience in law school’ and ‘it was great to interact with the clients on a one-on-one basis. it was helpful to learn from the supervising lawyer what issues to focus on & how to focus on those issues.’). 82 assessment regime students’ effectiveness in participating in both pre-interviews and the advice interview conducted by the lawyer/instructor could be assessed against a set of ‘indicators of good practice’36 which take into account feedback received from the client in their post-interview survey responses: pre-interviews 1. collected information required for the advice sheet (e.g. clearly & succinctly explained need; collected without unsettling client / disturbing flow; exercised judgement) self assess supervisor assess 2. efficiently undertook pre-interviews (e.g. maintained role / observed boundaries; rapport; structure; identification of issues & needs; open & closed questions; identified relevant questions to ask and information to receive; summarising back; notes: legible, structured, relevant) 3. debriefed after pre-interview with other student or solicitor (insight about strengths / weaknesses; analysing knowledge / skills; ideas for improvement) interviews 4. effectively briefed solicitor (pace; clarity; structure; coverage; relevance; maintained client rapport & managed client) 5. attempt to apply initiative in interviews (e.g. teamwork; explaining to client; client questions/ issues addressed; client options explored; problem solving; assistance as complete / empowering for the client as possible in the circumstances) 6. notes finalised (interview notes include facts; advice given; action steps listed at end; notes checked / approved by solicitor) 7. initiated / participated in efficient post interview discussion (e.g. sought & gave feedback; put forward any concerns; debriefed where appropriate) in addition students could be required to submit a short (250 words) reflection on how well a chosen interview went addressing this assessment regime and recording any feedback from clients. this could be done as part of an existing reflective journal or part of a case study component of the course. 36 these ‘indicators of good practice’ are adapted from the learning outcomes devised and implemented by our colleague judy harrison in the clinical youth law program course over many years. 83 2. using the second measure of quality – fostering students in the conduct of a ‘effective community legal education session’ effective community legal education community legal education (cle) is seen as ‘the provision of information and education to members of the community, on an individual or group basis, concerning the law and legal processes, and the place of these in the structure of society. the community may be defined geographically or by issue’.37 our view is that community legal education is critical in a ‘participatory democracy’. if people are to participate effectively in a democracy they need to have a fundamental understanding of how legislation passed by parliaments and administered by government departments affects their lives. clinical students often engage in the provision of community legal education by delivering training or information sessions to sections of the community. but assessment of the quality of their involvement is mostly subjective and unstructured. in research examining cle38 curran critiqued lecture style approaches since feedback from participants revealed this was ineffective. approaches that instead respond to the specific needs and experiences of the target audience were seen as much more effective. such approaches have also been identified as effective in adult learning.39 37 national association of community legal centres, guidelines for the management of community legal education adopted by the national, clews network in october 2009. (http://www.naclc.org.au/cb_pages/files/13%20national%20cle%20guidelines%20%28oct%202009%29%282 %29.pdf) 38 above note 13, 1-2. the report including the research methodology, survey data (separately and full version also on the web site) and findings are on laact’s website for agencies to examine and adapt. 39 c egle, ‘a guide to facilitating adult learning’ rural health education foundation and department of health and aging, 2009, http://www.rhef.com.au/wp-content/uploads/a_guide_to_facilitating_adult_learning.pdf 84 http://www.naclc.org.au/cb_pages/files/13%20national%20cle%20guidelines%20%28oct%202009%29%282%29.pdf http://www.naclc.org.au/cb_pages/files/13%20national%20cle%20guidelines%20%28oct%202009%29%282%29.pdf http://www.rhef.com.au/wp-content/uploads/a_guide_to_facilitating_adult_learning.pdf additionally, for people experiencing disadvantage (who are the main clients of legal aid and community legal centres in australia), who are socially excluded or who are vulnerable for reasons (which include age or capacity) it becomes even more critical that they are able to understand what is being presented to them about the law so as to be able to protect or enforce their rights. curran’s research highlighted this, noting that cle needs to be an effective endeavour to share knowledge that can be practically applied and effectively absorbed and implemented. balmer and colleagues note ‘the findings from the english and welsh civil and social justice survey demonstrate that there are knowledge, skills and confidence gaps in the population which are barriers to achieving legal capability’.40 their findings highlight the importance of helping people to make sense of the law. their analysis also demonstrated that disadvantaged groups were most likely to not obtain advice, to lack knowledge of rights, and so suffer adverse consequences. respondents reporting problems with discrimination, clinical negligence, welfare benefit problems and homelessness were less likely to obtain advice, and as a consequence more likely to lack knowledge of rights and to suffer adverse outcomes. their report notes that those designing public legal education interventions need to take into account the ‘whole’ person as well as other contextual factors, such as 40 n balmer, a buck, a patel, c denvir and p pleasence ‘knowledge capacity and the experience of rights problems, public legal education network and legal services research centre (london, 2010). <http://www.lawforlife.org.uk/data/files/knowledge-capability-and-the-experience-of-rights-problems-lsrcmay-2010-255.pdf> 85 http://www.lawforlife.org.uk/data/files/knowledge-capability-and-the-experience-of-rights-problems-lsrc-may-2010-255.pdf http://www.lawforlife.org.uk/data/files/knowledge-capability-and-the-experience-of-rights-problems-lsrc-may-2010-255.pdf literacy and numeracy levels, and anxiety and self-esteem considerations. the timing of the education is also crucial with people are more likely to be receptive to just-intime education.41 for students conducting community legal education it is therefore essential that it be highlighted that their role is to communicate effectively and appreciate the needs and capacities of the group. assessing effective community legal education drawing on the indicators of effective cle developed in curran’s research we suggest a number of measures that may be effective for assessing community education provided by clinical students. we suggest surveying participants either orally (especially for participants with low literacy or poor written skills) or with a short written survey administered at the end of the session. again a short form interview of cle participants might include the participants responding to statements (in terms of ‘strongly agree, agree, disagree and strongly disagree’) such as: • the legal education session was clear and easy to understand • the legal education session was practical and appropriate so as to assist my understanding of the topic. 41 former lord justice of appeal, chair, the plenet steering group, april 2010, ‘knowledge capacity and the experience of rights problems, cited in n balmer, a buck, a patel, c denvir and p pleasence ‘ public legal education network and legal services research centre’, london, 2010, 3. < http://www.lawforlife.org.uk/data/files/knowledge-capability-and-the-experience-of-rights-problems-lsrcmay-2010-255.pdf> 86 http://www.lawforlife.org.uk/data/files/knowledge-capability-and-the-experience-of-rights-problems-lsrc-may-2010-255.pdf http://www.lawforlife.org.uk/data/files/knowledge-capability-and-the-experience-of-rights-problems-lsrc-may-2010-255.pdf • the legal education used practical scenarios and case studies which assisted me in gaining a picture of how the law works and the different contexts. • the session met my expectations. • the information was relevant, useful and helpful. • as a result of this session/s i am more informed about how the law operates in this area and how i fit in. • there were elements of the presentation that need improvement. • armed with the information from this session, i feel more confident to take steps involving my legal rights.42 participant feedback from such surveys can assist students in reflecting on how well the information they impart is received and encourage their continuing reflection and development as to how adept they are at communicating legal concepts to a non-legal audience. supervisor observation using the statements can also provide a useful feedback tool. it might be useful for students to aggregate the data from surveys for pre4sentation to their supervisor. this would engage students in a process whereby they appreciate the tenor of responses and any recurrent themes that emerge. the students could usefully summarise the findings and present them in a debrief session with fellow students. 42 these questions have been adapted to suit a community education context but are based on questions from curran, above note 13 and from further work undertaken by curran for the consumer action law centre in late 2013 and the advocacy and rights centre, january 2014. 87 case study of community legal education: the clinical youth law program clinical students youth law centre act (ylc) is a free legal service for young people between 12-25 years of age. it is provided through collaboration between the act legal aid and the anu college of law. a drop-in centre operates each weekday providing legal advice and referral service for young people. clinical students work in the ylc one day a week in a paralegal role. as part of their involvement students conduct preinterviews, brief solicitors, assist during interviews and complete follow up work on client files. the centre also undertakes extensive cle, running outreach programs on a regular basis at high schools, colleges and with youth organisations. these are interactive programs designed to promote young people's knowledge of their legal rights and responsibilities and raises awareness of the services the ylc offers.43 there is a weekly reflective and instruction session each thursday morning. the clinic identifies target groups for cle as ‘primary’ (young people 12-25) and ‘secondary’ (e.g. youth workers, teachers, agencies). the students participate in cle activities that occur by way of invitation (e.g. to schools, youth groups) for interactive sessions about the legal aspects of particular activities (like rave parties, sexting) or through requests from particular groups (young people from north africa, young people on remand) to provide tailored sessions. they are also 43 recent sessions have discussed drug and alcohol; police powers and security guards; employment and apprenticeship; internet and mobile phone use including cyber-bullying and sexting; car accidents, and buying and selling goods (mobile phones etc.). 88 proactive in making overtures to youth agencies to have law students come and deliver sessions to workers about how to identify legal aspects of young people’s problems and how and where to refer them to for assistance. all of this occurs under supervision of a staff lawyer or the course coordinator. student involvement in the cle program takes a number of forms: 1. students are closely involved in the preparation and revision of materials for outreach activities including tailoring materials and resources – as part of both onsite activities and as assessment items (current popular subjects include group housing, sexting, police and security personnel powers) 2. students provide primary contact with young people in the delivery of cle to school groups, youth groups, youth detention centre open day, youth expos, visits to drop in centres, and secondary contact through youth agencies, visits to youth worker agencies, school teachers and drop in centre workers. 3. students debriefing in feedback session with the course coordinator, ylc staff and fellow clinical students about the response and effectiveness of cle sessions as a learning process, specifically in terms of empowerment and engagement using a simple template questioning rubric of ‘what worked? what could be done better? how could you be better prepared/equipped? what feedback did you get?’ 89 student evaluation reports once again are highly positive as to the benefits of involvement in cle outreach activities. assessment regime students’ effectiveness in participating in cle can similarly be assessed against a set of ‘indicators of good practice’44 which take into account feedback received from participants in those sessions: community legal education 1. preparing community legal education materials (assist solicitor & others in preparing/revising materials including researching, drafting handouts, brochures etc) self assess supervisor assess 2. presenting community legal education sessions (including level of engagement, using appropriate language [register, tone]; generating rapport; responding to group dynamics; fielding questions) 3. problem solving –identifying brief, determining level of content, appropriate presentation format; teamwork) 4. quality of work (timeliness; accuracy; performance against expectations including p, clarity of materials and in presentation style) 5. initiated / participated in session discussion (obtained client feedback; debriefed where appropriate) effective debriefing is important. careful debriefs about feedback received and how they felt about the sessions can provide fertile opportunities for deepened discussion on why skill, good human interaction and care are intrinsic to good lawyering. in a similar way, as with client interviewing, students could also be required to submit a short (250 words) reflective piece on how well their cle involvement went and 44 again we are indebted to our colleague judy harrison for these ‘indicators of good practice’ adapted from her the clinical youth law program course learning outcomes. 90 recording any feedback from participants. this too could be done as part of an existing reflective journal or part of a case study component of the course. conclusion the experiential learning opportunities in clinic or ple placements are immense. finding new ways to ensure students reflect on the quality of their participation can help them development professionally. by broadening the feedback students receive, in their learning, to those whom they seek to advise/instruct can enable them to appreciate that the work that they do as student lawyers directly affects clients and the community. conducting an interview and participating in an education session are very different activities but both highlight twin professional responsibilities – addressing the need for legal information and advice within a warm human exchange. students participating in interviews (both directly in pre-interviews and collaboratively with a lawyer) are directly engaged in meeting and addressing human problems with legal aspects. students involved in the empowering potential of cle meet a crucial role in the administration of justice. students can, we argue, in a safe and guided context, emerge more mindful of the need to strive to deliver quality service, and reflect on what they do and how well it is received. even though they are novices, notions of quality highlight their understanding of the effectiveness of law in operation. we suggest that careful 91 debriefs with students about this feedback can provide fertile opportunities for deepened discussion on the law and lawyers. the two measures we have sought to extrapolate from the sphere of legal assistance service evaluation provide fertile methods that might be considered and adapted to clinical or ple programs both in terms of assessment and program design. by connecting students early to notions of quality and effectiveness, may also have the benefit of driving up the quality of legal practice in the longer term. 92 310229_april ed 2 inner “clinic and the wider law curriculum”: jonny hall* and kevin kerrigan,# northumbria university introduction we have always been quite proud of this student feedback about our clinical programme and still use it in publicity material: “the slo transformed what seemed like an academic subject into a practical one with very real consequences that i felt that i could shape. my perceptions of employment law changed drastically as did my view of the law in general. it reminded me of why i wanted to study law initially.”1 looking at it more carefully while writing this piece it did not seem so impressive. what had we done in the first three years of this student’s legal education that made her forget why she wanted to study law in the first place? we had provided clinic as the capstone on what was, in many respects, a programme of study that focused on legal rules and legal theory.2 although this student had eventually benefited significantly from the reality that clinic provided, her comment reflects a growing debate about whether these benefits could be introduced at an earlier stage. we have become uncomfortable with the isolation of the substantive aspects of the programme from the clinical aspects and are currently grappling with how we can integrate doctrinal knowledge with a fuller clinical experience throughout the student journey.3 “clinic and the wider law curriculum” 25 * principal lecturer, northumbria university, programme leader, exempting law degree. # associate dean for undergraduate and clinical programmes, northumbria university. 1 anonymous student feedback in student law office questionnaire for graduating students, 2005. 2 this is a somewhat over-simplistic description of the exempting law degree at northumbria. in fact the programme does seek to integrate practical skills and understanding with legal knowledge throughout and for many years was the only law degree to combine the “academic” stage of legal education with the “vocational” stage. however, the live clinical course has been available only towards the end of the programme with little real experience prior to this. 3 this is by no means a novel insight. commentators have for some time advocated the idea that clinical methodology may be able to play a more central role within legal education and that in this sense the clinical project remains a work in progress. as early as 1933 jerome frank was arguing, why not a clinical lawyer school? 81 u. pa. l. rev. 907. although in a somewhat different context to the modern debate he clearly had in mind the use of clinical methodology as a significant aspect of legal education: “the law student should be taught to see the inter-actions of the conduct of society and the work of the courts and lawyers. the usual law school curriculum largely omits such teaching. it relies on prelegal courses in the so-called social sciences. the result is that the law student is graduated with the vaguest recollections of his prelegal work, an insufficient feeling of the interrelation between law and the phenomena of daily living, and an artificial attitude towards “law” as something totally distinct and apart from the facts.” (at page 921-922). more recently it has been addressed for example by barry et al in clinical hence, the problem this paper addresses is that although there is general consensus as to the value of clinic and recognition that it has enhanced creativity and vitality in legal education, there is still a tendency to see it as something apart from the regular law curriculum. we want to explore the viability of making the key benefits of clinical education pervade the whole of the student’s time learning the law. we draw some encouragement from official reports from the us and the uk which, although not concerned primarily with the place of clinical legal education, do provide general support for an approach which combines theory and practice. the carnegie report from the united states recently sought to convince the legal academy of the value of integrating the learning of legal rules with the learning of legal realities: “how then can we best combine the elements of legal professionalism – conceptual knowledge, skill, and moral discernment – into the capacity for judgment guided by a sense of professional responsibility? we are convinced that this is a propitious moment for uniting, in a single educational framework, the two sides of legal knowledge: (1) formal knowledge and (2) the experience of practice. we therefore attempt in this report to imagine a more capacious, yet more integrated, legal education.” carnegie report, 2007, page 12.4 just over ten years earlier, the aclec report in the united kingdom offered similar guidance on the combining of these two facets of legal understanding: “a liberal and humane legal education implies that students are engaged in active rather than passive learning, and are enabled to develop intellectually by means of significant study in depth of issues and problems as part of a coherent and integrated course, and that the teaching of appropriate and defined skills is undertaken in a way which combines practical knowledge with theoretical understanding … the rigid demarcation between the “academic” and “vocational” stages needs to disappear; what is required is a new partnership between the universities and the professional bodies at all stages of legal education and training.”5 with rare exceptions,6 law schools in the united kingdom have so far largely resisted this exhortation. even where legal practice is addressed it tends to be in isolation from the core business of teaching students substantive legal knowledge. it remains to be seen whether the 26 international journal of clinical legal education summer 2011 education for this millenium: the third wave, clinical l. rev. 1 2000-2001. we agree with their proposition at page 33 that “the dichotomy between doctrinal analysis and theoretical considerations on the one hand and practice on the other is unfortunate, since each has an important role to play in a sound legal education”. 4 educating lawyers – preparation for the profession of law, william m. sullivan et al, the carnegie foundation for the advancement of teaching, jossey-bass, 2007. 5 lord chancellor’s advisory committee on legal education and conduct 1st report, april 1996, paragraph 2.2. 6 at the time of the aclec report northumbria had recently introduced its exempting law degree and the report acknowledged this development: “we have extolled the virtues of integrated education and training … as exemplified at present by the northumbria exempting degree.” aclec 1st report paragraph 5.19. this programme integrated the first two stages of legal education (academic and vocational) but did not at that stage seek to address the training / practice stage and did not see clinic as a pervasive teaching methodology. further exempting law degrees have since been introduced at other institutions but we are aware of no programme which utilises clinical education as a pervasive vehicle for delivery of the core curriculum. carnegie report makes a more immediate impact in the united states. in any event both jurisdictions currently show a clear tendency to keep traditional and clinical teaching separate.7 although clinical legal education often thrives in law schools it does so with a distinct identity, purpose and values so that a psychological (and sometimes physical) barrier is erected between regular learning and clinical learning. in most institutions clinic is seen as an optional course or extra-curricular activity rather than a core vehicle for delivering knowledge and skills.8 this paper argues that separateness of clinic from the mainstream learning methods leads to disadvantages for students, for the clinic and for the wider law school. it suggests that real legal experience, broadly conceived, can not only enhance student appreciation of professional skills but also benefit their understanding of key legal knowledge and principles. further integration of clinical methodology into the regular curriculum has the potential to make the student learning experience more engaging, more challenging and ultimately more valuable. we think it might be time for clinic to emerge from the margins and come to centre stage in legal education. this is not uncontroversial. there are clearly risks with trying to synthesise the doctrinal study of law with an exposure to the practical realities of the law. however, we think that there are ways in which it can be done which enhances student appreciation of substantive law while engaging student enthusiasm and developing an essential early exposure to law in its natural setting. cart before the horse? must basic substantive legal knowledge of any legal area come prior to clinical experience? stefan kreiger has argued9 “basic knowledge of substantive legal doctrine is a necessary pre-requisite to learning effective legal practice.”10 he rests his arguments partly on research carried out in the medical school context by vilma patel and others11 which compared students who had studied basic science prior to clinical training (a traditional clinical curriculum) with those who had been trained in a problem based learning “clinic and the wider law curriculum” 27 7 see barry et al clinical education for this millenium: the third wave, clinical l. rev. 1 2000-2001: “as we enter the new millennium, the movement beyond the casebook method to the wider integration of clinical methodology throughout the curriculum stands on a solid intellectual foundation. yet, although clinical legal education is a permanent feature in legal education, too often clinical teaching and clinical programmes remain at the periphery of law school curricula.” 8 we think that this development would help us move towards twining’s holy grail of the law school as a house of intellect: “… an institution which purports to be the practising profession’s house of intellect, providing not only basic education and training, but also specialist training, continuing education, basic and applied research and high level consultancy and information service. the nearest analogy is the medical school attached to a teaching hospital which, inter alia, gives a high priority to clinical experience with live patients as part of an integrated process of professional formation and development. in no western country has this model been realised in law.” twining, blackstone’s tower: the english law school (1994, sweet and maxwell, london) at p.52. 9 domain knowledge and the teaching of creative legal problem solving, 11 clinical l rev 2004-5. 10 ibid. p.149. 11 extensive references to this research can be found in footnote 10 of kreiger’s above mentioned article. method involving brainstorming and dealing with clinical problems involving both basic science and clinical application from the start of their education: “with law school skills training courses, if students are asked to brainstorm or use other problemsolving techniques in doctrinal areas in which they have limited exposure and in which they must perform extensive legal research, these studies [i.e. by patel et al] suggest that the burden on their mental processes may actually obstruct learning both the doctrine and the techniques.”12 part of his argument, as we understand it, is essentially that teaching using clinical methodology prior to a sound basic understanding of substantive law in the area will: • lead to an unsound grasp of the substantive law • result in ineffective problem solving because the student has an insufficient grasp of the substantive law • involve teaching a method of problem solving which is not one which experts use to solve problems and may hinder the acquisition of expert problem solving skills “students should not be expected in a single semester course to acquire basic knowledge of the substance and procedure of a complex legal area concurrently with their handling of cases in that area. at the very least, such courses should have rigorous prerequisites in the relevant doctrine and procedural law. ideally they should be capstones to other doctrinal courses in the area all organized with the intent of training students to apply their knowledge in practice.”13 in his response mark aaronson argues that kreiger overstates the ability of any substantive law course to teach more than the basics of that course: “what we provide students at the end of three years is a learning permit. their development of substantive expertise occurs over time once they are in practice and have repetitive exposure to similar problem situations.”15 however, aaronson also agrees that substantive legal training should first be undergone. his school places this training immediately before the clinic module takes place and during it. kreiger raises legitimate concerns about the limits of clinical methodology. we add that to attempt to teach the entire syllabus using clinical or problem based learning methods would: • be excessively time consuming for staff and students • result in wasted effort pursuing avenues which the tutor knows will be fruitless but which the students do not • result in incomplete understanding of subject areas in which the “problem” dominates the students’ learning objectives and other crucial areas of the substantive law subject are ignored because they are not raised by the “problem” at hand 28 international journal of clinical legal education summer 2011 12 ibid. p.182. 13 ibid. p.202. 14 teaching problem solving lawyering: an exchange of ideas, 11 clinical l rev 2004-5 at p.485. 15 ibid. p.487. however, we have reflected on the conclusions of the overwhelming majority of research on learning and motivation points to the conclusion that education should always involve variety (see for example, hattie, 200416; apter, 200117; moseley, et al, 200518). a model that proposes substantive legal education to be focused solely on didactic teaching in strictly compartmentalised subject areas where the curriculum and learning is solely set by the teacher is no more likely to succeed than one in which only pbl is used. to accept only one monolithic method at any particular stage is to deny to the student those opportunities that each offers to broaden their repertoire and increase their intellectual flexibility. we do not suggest that this is kreiger’s proposal, but it has been the reality of many law programmes in the uk in the past. our aim is not to limit the early years of undergraduate education, nor to confuse students: the ideal should not be the case method, learning through problems, problem based learning or simulated/real clinical experience but experience of all of the methods, with the role of the lecturers to make explicit both to themselves and to students the marriage of content and process which is designed to maximise depth and breadth of learning. different students will respond more positively or negatively to each different method and lecturers can make use of the strengths within teams to build a cadre of future professionals who know both how to model good practice and how to ask for help. we do not accept that by occasionally or even regularly asking students to set their own research objectives in a supportive learning environment that that learning will necessarily be at a lower level than on a traditional substantive law course.19 we also reject the assertion that learning how to deal with unfamiliar areas of law will hinder the ability of students to learn to problem solve when they already have a body of knowledge to work from. kreiger’s use of studies from the medical school field involved a comparison of a programme that offered no problem based learning with a school where problem based learning was the only or dominant method of teaching. we do not advocate that students learn from clinical problems exclusively. simply that they sometimes do. there is currently no empirical research that we are aware of that would suggest some exposure would hinder the development of problem solving abilities. more fundamentally, we are working towards an understanding of expertise which focuses on the distinction between the ‘experienced’ professional whose knowledge and skills are extensive but also crystallised and the ‘expert’ professional whose knowledge and skills are fluid and constantly evolving.20 as legal educators we have a duty to students to best prepare them for lifelong practice and a duty to the profession to equip them with the flexibility to adapt to a future we cannot predict. “clinic and the wider law curriculum” 29 16 factors that influence students’ learning: results from a study involving 500 meta-analyses. paper presented at the esrc seminar ‘effective educational interventions’, university of newcastle upon tyne, july 8th 2004. 17 motivational styles in everyday life: a guide to reversal theory washington, dc: american psychological association. 18 frameworks for thinking: a handbook for teachers and learners cambridge: cambridge university press. 19 indeed our experience on a second year public law course using problem based learning, has been that students developed a far stronger grasp of the legal issues than was formerly the case using a traditional method of teaching. see the summary of this project below in the section on integration of simulated activities. 20 see berliner, learning about and learning from expert teachers international journal of educational research, (2001) 35, 463-482. the benefits of integration integration of clinical legal education with the core law curriculum has the potential to benefit the school as a whole. this section sketches some of the wider advantages we suggest can flow from a clearer focus on clinical methods across the curriculum. more specific issues are dealt with in the next section where we consider practical examples of clinical activities. inclusivity – integration can help to break down some of the barriers between academic and clinical faculty that sometimes exist. this would address the feeling that clinicians sometimes have of being marginalised or undervalued and the reaction of some non-clinical teachers of being excluded from clinical activities. tactics such as the use of “consulting professors” whereby academic lawyers provide legal guidance to clinical students provides real assistance to the provision of the legal service and goes some way to making academics feel valued as part of the clinic’s case work but is still very much an arm’s length collaboration. moreover, it goes only one way. it fails to take advantage of the clinical professor’s knowledge and expertise in the context of students’ study of legal doctrine. we envisage a more intensive, mutual and fruitful partnership which should ultimately break down the distinction between clinical and traditional teaching sessions. enhancing the personal development and expertise of the academy – we do not advocate that all academics become clinicians or practising lawyers. however, the more engaged those academics become in practical issues experienced by clients, the richer their own knowledge of the interaction between their specific subject expertise and the current legal system. there is an opportunity for the academic themselves to learn new insights. in one sense much of substantive law teaching is based on reality through use of real case precedents to illustrate legal principles and the development of the law. nevertheless, the inevitable focus on appellate decisions provides an artificial perspective of how the legal system routinely operates. knowledge of “coal face” issues can prove a catalyst for reflection, critique and renewal of perspectives. sustainability – while clinical legal education remains a separate enterprise from the core teaching of law it is vulnerable to being undermined due to ideological opposition, changing educational fashions or resource cuts. in many jurisdictions clinical legal education survives (if at all) due to the personal dedication of those involved rather than deep-rooted institutional support. there are numerous examples of clinics that have emerged due to the availability of external funding or the interest of key faculty members only to fall away once the funding ends or faculty move on. that which makes clinical education distinctive is also that which makes it expendable if an institution is looking to make cuts or to go “back to basics”. integration of clinic with the core curriculum reveals its value as a teaching methodology and enhances its prospects of surviving and prospering in the long-term. student engagement – as noted above, pedagogic research confirms that which intuitively makes sense: learners respond positively to variety.21 clinical legal education provides a different perspective on the meaning, operation and consequences of legal rules and doctrines. as part of a legal education that includes instruction, dialogue and critique, clinical activities can provide students with a richer tapestry for their learning. moreover, as will be argued below, some forms of clinical legal education – those which involve real legal consequences – have the potential to engage student imagination and enthusiasm in a way that no other methodology can achieve. by 30 international journal of clinical legal education summer 2011 21 see the sources cited at footnotes 14-16, above. harnessing some of this energy within the regular law curriculum it is possible to lift the whole experience. mechanisms for clinicalising the curriculum if the principle of integrating clinic is accepted we must address how best to achieve this. there are various approaches that can be adopted. we wish to outline two approaches: (i) integration of simulated activities and (ii) integration of real legal experience. our law school has made significant strides towards the implementation of the first but we now think the time has come to be more radical and seek to achieve a fuller integration of reality into the law curriculum. integration of simulated activities the obvious means for programme designers seeking to bring in more clinical methodology is to draw upon simulated experiential activities. these are often more resource friendly and almost always more predictable and manageable than real experience. we have done this to a significant extent in recent programme re-design at northumbria. the new degree programmes contain a much more obvious clinical flavour than previously. at a definitional level we have adopted a broad and flexible spectrum of “clinical and experiential learning” meaning “learning that requires students to engage with and reflect upon the practice of law.”22 this encapsulates modest skills-based and simulation activity at one end and full blown live client representation at the other. we encourage faculty to incorporate clinical and experiential learning within their modules in a way that enhances the delivery of their core syllabus rather than detracting from it or supplementing it. on a structural level we have ensured a minimum guaranteed clinical and experiential content by agreeing to implement a clinical “stream” within all compulsory subjects in the first three years. thus compulsory modules each have responsibility for delivering the clinical stream activities for a significant but not dominant period throughout the year. for example, there are four core modules in year one: contract, property, english and eu legal systems and crime, litigation and evidence. each takes responsibility for the clinical stream for a period of approximately 4 weeks during the year which gives the students 4 months of exposure to clinical activities across the year in a variety of substantive contexts. examples of experiential activities are as follows: criminal case study – in crime, litigation and evidence year one students are provided with a bundle of realistic prosecution and defence statements and exhibits regarding an alleged sexual assault. this forms the basis of numerous small and large group sessions to examine in detail issues relating to the parameters of sexual assault, police powers and court procedure, the role of prosecution and defence lawyers and the principles of admissibility of evidence. exercises include case analysis, drafting defence disclosure, bail applications, and challenges to indictments and evidence. it culminates in a mock trial. cross-module23 problem based learning project students studying on separate second year modules “clinic and the wider law curriculum” 31 22 northumbria university m law teaching and learning strategy, 2008. 23 barry et al note that while teaching doctrine in distinct areas such as tort and contract is useful: “teaching law without giving students a feel for the of public law and tort/civil litigation interviewed an actor client wrongfully arrested by the police – thus involving both public law, tort and litigation issues. students were not lectured on the areas of law. instead, students set their own research objectives using pbl methodology24 and researched the facts and the law in order to come to reasoned conclusions on advice to give to the client. outcomes included: greater levels of student motivation and preparation; enhanced performance in examination on the areas studied; students expressed the belief that their ability to research had been enhanced and several commented that they felt able to work far more independently and with more self confidence integrated mooting programme – rather than a traditional socratic seminar discussion students are required to prepare a fictitious appellate case relating to the area of law being studied in a particular subject. they are required to exchange authorities and then in class perform the roles of appellate bench and senior and junior counsel for each party. in this type of role play exercise they develop deeper research skills and enhance their experience of oral communication in a structured environment.25 simulated interview with an actor we have used this activity in conjunction with problem based learning projects. students interview an actor in order to obtain instructions about the legal problem. the advantage of presenting the problem in this way is that students are highly motivated by the opportunity to begin to practise lawyering skills. they work harder than would usually be the case to obtain the factual information and analyse it. this provides a powerful boost to the problem based learning study.26 mock transactional file – students studying property law and practice are divided into teams representing the vendor and purchaser of a fictitious property. they open up dummy files and correspond with each other, negotiating a deal, drafting contracts, raising queries about title, requesting relevant searches, arranging completion and transfer of monies etc. the tutor is able to intervene to inject complications or to resolve problems. in this way the students begin to understand the procedural framework within which land law operates and appreciate how disputes can arise. the key to the success of these activities in the context of a programme that seeks to provide a fully rounded legal education is ensuring that they aid the students’ understanding of the law and legal system at a level appropriate to their abilities and motivations. they are delivered alongside 32 international journal of clinical legal education summer 2011 confluence of these categories in addressing client interests instills a fractured understanding of how to approach legal problems that is hard to overcome,” clinical education for this millenium: the third wave, barry et al, clinical l rev 1 20002001, 35. 24 for an enlightening account of problem based learning in legal education see: the problem-based education approach at the maastricht law school jos moust, the law teacher 31-32 1997-98 25 see gillespie and watt, mooting for learning project interim report, a ukcle research project, <http://www.ukcle.ac.uk/research/projects/gillespie 2.html> research (accessed 14th january 2009). this study found that 93% of responding institutions undertook mooting activity, 59% within the curriculum. it is evidence that some forms of experiential methodology are already embraced within academic programmes. 26 in some environments the use of actors for interviewing has been taken a significant stage further so that the simulated client becomes involved in the assessment of the student interviewing skills. see barton et al, valuing what clients think: standardized clients and the assessment of communicative competence, 13 clinical l. rev. 1 (2006-2007). in the present context we are contemplaing the use of an actor to add realism and urgency to the learning of legal rules within the context of a doctrinal law class. more traditional methods of teaching law and need to be seen as part of the core teaching programme rather than a supplementary skills-oriented / vocational stage. they should therefore be seen as part of the varied repertoire for delivering core knowledge and skills. to these could be added significant innovative experiential modules which involve students in role playing not only (or perhaps not even) the lawyers but also the clients and other roles that play out in the real world. for example at cuny school of law in new york, professor john cicero taught labour law through turning his classroom into the shop floor, utilising the parallels of the power imbalance between employers and workers and teachers and students to enable the students to feel some of the effects of that imbalance27. other examples include barbara woodhouse’s course at university of pennsylvania law school where students in a “child, parent and state” module explored family policy and state intervention from theoretical, doctrinal and practical perspectives involving simulated role playing of not only the lawyers for all parties but also the parents. the module involved the playing out of these roles through simulated negotiation, and hearings if negotiation failed, using realistic case documents together with practical insight from experienced practitioners and exploration of theory including conversations with policy makers. integration of real experience simulated activities, if they are well designed and implemented intelligently as part of an integrated learning package, can go a long way to breaking down the artificial distinction between the theory and practice of law. we think they have an important place in the encouragement of a more holistic view of the study of law. they will remain a substantial part of our move towards clinicalising the curriculum. however, our aim is to go beyond this and provide students with increased exposure to the operation of law in its real setting. part of the spectrum of learning opportunities permeating a law degree programme should be actual experience of law in context. this has rarely been attempted to our knowledge – though barry et al cite several isolated examples29. we should emphasise that we are not attempting to teach the whole of the law curriculum via this methodology – merely to add to the variety of current techniques. there are three main reasons for our focus on real experience. first, real law operates in ways that cannot be predicted by manufactured case studies. by creating problems the teacher deliberately closes off blind alleys and predetermines the outcome. at worst, students will wait for the answer from the teacher. at best, they will attempt to take the predetermined facts and conduct basic research and then apply it to the problem.30 “clinic and the wider law curriculum” 33 27 the classroom as shop floor: images of work and the study of labor law c. john cicero, 20 vt. l. re. 117 1995-1996 as cited in clinical education for this millenium: the third wave ibid. we confess that the extent to which professor cicero was prepared to role play and potentially lose control through “firing” one of the students and prompting a student walk out, would prove too challenging for most law teachers. 28 mad midwifery: bringing theory, doctrine, and practice to life, barabara bennett woodhouse 91 mich. l. rev. 1977 1992-1993 29 clinical education for this millenium: the third wave, barry et al, clinical l rev 1 2000-2001. 30 teaching legal research and writing with actual legal work: extending clinical legal education into the first year michael a. millemann and steven d schwinn, 459, 441, 12 clinical l. rev 2005-2006. real problems have an organic property giving truth to the saying, “you couldn’t make it up.” as jane aitken has commented in the context of client representation: “once they encounter a client, the blind faith that there is a ‘truth’ or a ‘law’ that can be applied must give way to a more sophisticated understanding. clients’ cases rarely present simple facts that lend themselves to right and wrong answers. it is the complexity and unpredictability of working with real people that makes clinical legal education so rich.”31 a second and linked notion is that real cases enable students to scratch beneath the surface of the legal system and explore the hinterland of expectations, promises and fears engendered by the legal process. as stuckey has argued: “even the best simulation-based courses, however, provide make believe experiences with no real consequences on the line. as early as possible in law school, preferably in the first semester, law students should be exposed to the actual practice of law. exposure to law practice may be the only way through which students can really begin to understand the written and unwritten standards of law practice and the degree to which those standards are followed. students need to observe and experience the demands, constraints, and methods of analysing and dealing with unstructured situations in which the issues have not been identified in advance. otherwise their problem-solving skills and judgment cannot mature.”32 thirdly, students generally respond positively to real experience. they sit up and take notice. reality engenders a motivation that is not possible to create with an artificial scenario. this graduating student feedback is representative of many: “over the past four years i have participated in theoretical cases which are supposed to increase my understanding as to how the law operates in practice, but in reality i subconsciously know that they are false representations and thus there is no incentive to want to understand things quickly. if the degree focused more quickly on working with actual clients with real cases i would definitely suggest that there would be an improvement in the work ethic.”33 the passion for acting in the best interests of a client, particularly clients who are disadvantaged or oppressed by the legal and social system provides a strong motivation to work and a key opportunity to learn: “imparting passion for the law may be the most critical aspect of legal education, for with that passion will come the desire to achieve whatever else is needed. for some students – those most like the typical law professor – passion may be derived from the inherent intellectual challenge of the issues presented by the law. for many other students, however, that intellectual challenge is too abstract. for these students motivation must come from other sources.”34 34 international journal of clinical legal education summer 2011 31 provocateurs for justice, 7 clin l. rev. 287 at page 292. 32 stuckey, roy, teaching with purpose: defining and achieving desired outcomes in clinical law courses (2006-7) 13 clinical l. rev. 807-838. 33 anonymous graduating student feedback, northumbria university, 2006. see also: angela campbell’s conclusions as to the need for students studying legal writing to feel that their writing is taken seriously and that it matters – a recommendation for teaching legal writing, a compulsory course in the united states, through real clinical work: teaching advanced legal writing in a law school clinic angela j. campbell, 24 seton hall l. rev. 653, 659-60 (1993). 34 maranville, passion, context, and lawyering skills: choosing among simulated and real clinical experiences, 7 clinical l. rev. 126 2000-2001. nevertheless, we are not suggesting that students should be thrown in at the deep end of performing the role of a lawyer right from the outset of their legal studies. in the united kingdom this would be far too early as students typically commence their law degree immediately upon leaving school at the age of 18. it is important for students to develop maturity, knowledge, understanding and experience in a progressive manner throughout their studies. the experience they have should be commensurate with the stage of their development. but this is most certainly not an argument for leaving the real experience until the end of their studies. rather, it is a reason for being more flexible and sophisticated about the choice of real experience. full client representation is only one facet of law in practice. there is a multitude of other activities that students can undertake in order to build their appreciation of legal rules and legal practice short of actual client representation. ideally such experience will culminate in client representation but the transition will be smoother due to the progressive development of real experience in the context of the core curriculum throughout their legal studies. progression through levels of experience we have identified four levels of real experience that we suggest may coincide with the typical four years of university study for students who undertake the academic and vocational stages of legal education for the legal profession in england and wales. our argument is that these levels should be added to the panoply of existing methods of educating law students. they should be seen not as part of a purely skills-based agenda or as an eccentric but unnecessary luxury but as part of the routine means of delivering the curriculum. for each level we have given one brief example and we go on to provide a more detailed example below. we are aware that a large proportion of law graduates do not progress to the vocational stage. however, these levels of experience are, we feel, equally valid for a law graduate who does not go into legal practice. the justification for exposing students to real legal experience is to enhance their understanding of the subject they are studying, not to train them to be practitioners. level 1 – observational experience – at an early stage of their studies students should be able to observe the law in practice without having any responsibility for performing tasks. by observing the law in practice they can make connections with their classroom discussions and begin to understand the context within which the legal rules operate. our example is a first year court visit requirement whereby our students are required to make arrangements to visit a local court for a day to observe legal proceedings and then to write a reflective commentary about their experience. the key to making this effective within a substantive class is ensuring that students attend hearings where they can observe the practical application of the legal rules and principles they are studying.35 level 2 – collective participation – as students progress in their understanding of legal rules they can be challenged to participate in activities that have real consequences. collective participation shares the burden of responsibility thereby reducing the individual pressure students might feel but raising other dynamics such as the need to work as a team and to begin to understand the “clinic and the wider law curriculum” 35 35 we recognise that court observation is hardly an entirely new idea: “is it not absurd that during his law-school career a student should not be encouraged frequently to visit court rooms?,” why not a clinical lawyer school? jerome frank 81 u. pa. l. rev. 917, 907 1932-1933. it is a matter of concern that there is still so little use made within degree programmes of the excellent free resource of the courts. learning law without observing courts is like learning music without attending concerts. responsibility involved when working on behalf of “client”. an ideal method of helping students to understand legal rules is to require them to articulate those rules to people or organisations likely to be affected by them. students can plan, prepare and deliver a legal presentation in accordance with a brief they have agreed with the prospective audience. student participation in public legal education projects like streetlaw schemes has the potential to provide a valuable service to the community while at the same time pushing students to explain often complex provisions and appreciating the difficulty lay people have in understanding legal rules.36 level 3 – individual participation – students can become involved in clinical case work without necessarily having full responsibility for the progress of a case. early exposure to the discipline of meeting and dealing with real clients is an ideal way of inducting students into a professional organisation. alternatively, students can be required to work on part of a clinical case even though they will not have personal ownership of the file. one example is our third year interview and referral module whereby students prepare to conduct an initial interview with a potential client of the fourth year student law office programme. it can involve any area of law and so the students are only able to perform a basic fact finding function. following the interview, the students prepare an attendance note and refer the case to fourth year students. the third year students continue to work on the case, however. working in small groups with a tutor over a series of seminars, they focus on one of the cases they interviewed clients on to identify research objectives and research the legal issues surrounding the case. within a matter of a few weeks they produce a research report for the fourth year students and meet with them to discuss how the case has developed and their view of the legal issues. it appears that in the united states there is a movement in the legal research and writing (lrw) sphere towards using real cases37, sometimes in first year (though in the us this is of course postgraduate) classes. this appears to us to be a good example of an attempt to achieve outcomes via integration of traditional and clinical methodology.38 36 international journal of clinical legal education summer 2011 36 it has been argued that street law and other community engagement activism can fact produce deeper and more long lasting benefits to the community than individual client representation: “community education reaches under-served populations, provides opportunities for clients to have their voices heard, responds to concerns that cannot be adequately addressed by the legal system, encourages individuals to solve their own problems, and develops leadership skills in community members.” eagly, community education: creating a new vision of legal services practice, 4 clinical l. rev. 433 (1997-1998). 37 for details of the extent of collaboration between clinical and lrw faculty see comment: survey of cooperation among clinical, pro bono, externship, and legal writing faculty sarah e. ricks and susan c. wawrose 4 j. ass’n legal writing directors 56 2007 and for the 2007 survey by the us legal writing institute: collaboration between clinical, externship, pro bono and lrw programs results of 2007 survey by lwi committee on cooperation among clinical, pro bono, and legal writing faculty see http://www.lwionline.org/surveys.html last accessed 23.12.09 38 millemann and schwinn have presented an inspiring study of a first year class in lrw. (teaching legal research and writing with actual legal work: extending clinical legal education into the first year michael a. millemann and steven d schwinn, 459, 441, 12 clinical l. rev 2005-2006). two different models were used, one of which utilised a criminal appeal case being conducted by more experienced upper year students in the school’s clinic. the upper year students took responsibility for the client’s case overall, gathering the facts and briefing the lrw students. the lrw students had to evaluate the legal issues, understand the criminal process as it stood at the time of the appellant’s trial and brief on and argue the points in class. their conclusions were that actual legal work motivates students to learn the basic skills of lrw and begin to develop the use of facts and construction of legal arguments in response to indeterminate legal issues. professor level 4 – personal professional responsibility – as students mature and develop their understanding of law and legal process they can be expected and trusted to take more responsibility for the handling of client affairs. this is particularly, though not exclusively applicable to students who clearly intend to practice law as a career. student participation in in-house clinical courses or externship programmes place the student in the position of prototype lawyer. they will be closely supervised but they will have ownership of the case and will feel the weight of professional responsibility and commitment to a client’s case. it provides an opportunity for the student to see the pieces of the learning jigsaw finally fit together. their substantive knowledge, intellectual and legal skills should combine to produce an experience that is similar to real life practice. as previously stated this may still be seen as the capstone on earlier experience but the difference with existing practice is that it will not be such a shock to the system because the student will have encountered real law and its implications throughout their studies. a further development could be that the full clinical experience will be part of or sit alongside the students’ substantive law study so that there is integration of doctrinal and practice-oriented learning.39 conclusion we accept that clinical legal education has its limits. we do not suggest it is the best methodology for achieving all objectives of the law school. however, we argue that its integration with other techniques can provide students with a more complete legal education. it has value not only in developing skills competencies but in deepening understanding of the substance of the law. we think that careful, progressive use of simulated and real experience in the core modules will help to achieve the hopes for the future expressed by barry et al that: “in the new millennium, law school clinics cannot continue to be the repository for the many aspects of lawyering that are excluded from substantive law courses taught with the casebook method. the aim … should be to incorporate clinical teaching methodology into non clinical courses to teach lessons that will be further developed and re-inforced by in-house clinic and externship experiences.”40 “clinic and the wider law curriculum” 37 tracy bach of university of vermont law school describes a lrw class for first year postgraduate students whereby they researched and wrote memoranda concerning a civil action relating to lead poisoning of a child. the case was to be brought by a public interest lawyer who needed research assistance (cooperation, not collision: a response to when worlds collide tracy bach, 4 j. ass’n legal writing directors, 62 2007). others examples from the us include an attempt to involve undergraduate students in experiential learning using either an active capital case being conducted by external lawyers or reviewing previous erroneous convictions. (it’s not just for law school anymore: clinical education for on the death penalty for undergraduates jon gould 53 j. legal educ. 174 2003). in the case review class, students researched through news reports and the internet to find suitable miscarriage cases and finally investigated 3 such cases. students obtained both written material and sought information from the subjects involved in the cases. a report was produced and students presented their recommendations for reform to both justice officials and a former us attorney general. students were as likely to praise the course for its emphasis on critical analysis as they were to praise it for a first hand experience of the justice system. 39 see mitchell et al, and then suddenly seattle university was on its way to a parallel, integrative curriculum, 2 clinical l. rev. 1 (1995-1996) which describes a shift to combined doctrinal / clinical classes. 40 barry et al op. cit. at p.38. an essay on the stages of the clinical year in law school 130 an essay on the stages of the clinical year in law school: group process with existentialist roots richard j� wilson* abstract this short essay focuses on “units,” or stages of group process, part of my shared experience in law teaching and in adult education at st� mark’s church, capitol hill, washington, dc� the article explores the context of the functional education program of church teaching and its common elements with clinical law teaching� in my own experience, the unit structure from church teaching translates well into the structure of clinical legal education� introduction i have been a law teacher for 25 years this year, most of them in in-house, live-client clinics� the experience has generally been a happy one, rewarding and fulfilling for me, as i hope has also been true for my students� because of my background as a public defender prior to teaching, i try to motivate my students to consider work in the public interest field, if not directly in human rights� my own clinic, the international human rights law clinic at american university, has done human rights work for the past twenty years� as i complete a fulfilling sabbatical year, i find myself looking back as much as forward and reflecting on what has been useful in my own teaching that might also be useful to others� i am repeatedly drawn to the synergy between my experiences in clinical teaching in law and my long-time work as a teacher in the adult education program of my church, st� mark’s episcopal church on capitol hill� let me clarify from the outset that my reflections are not intended to proselytize or otherwise sell any particular brand of religion� there are a couple of good reasons why this is so� first, i haven’t done this kind of church work for a number of years; my primary church teaching with adults was during the 1980s and 90s� more recently, i have taken to * * richard j� wilson is professor of law and founding director of the international human rights law clinic at american university’s washington college of law� i appreciate the insights and help of zachary ista, my research assistant, in reviewing and preparing this article� 131 international journal of clinical legal education autumn 2011 1these references come from http://www�stmarks�net/ about/introduction�html (last visited on april 7, 2010)� 2a useful document on the concrete operation of the human rights clinic can be found on-line at https:// www�wcl�american�edu/clinical/annual_2002�pdf?rd=1 (last visited on april 8, 2010)� 3paul r� abernathy, a word about kierkegaard, buber, and tillich, http://www�stmarks�net/christian_ ed/functional_education/kierkegaard�html (last visited on april 8, 2010)� protecting my sunday mornings for “down time” – long, slow swigs from the new york times, and an occasional tai chi course� second, st� mark’s, then and now, was and is unlike many other churches� it explicitly advertises to draw in religious skeptics and doubters� its parishioners include a solid core of christian believers but it also draws agnostics, atheists, fallen-away catholics, jews and other religious refugees and dissenters, all of them seekers after faith� it serves communion to any and all who step up during the service� “whatever you believe, whatever you do not believe, you are welcome at this table,” says the introduction on the st� mark’s website, which also poses this premise for the church’s work: “we follow the paradoxical path: by looking squarely into the dimness of uncertainty, we can discover truth�”1 st� mark’s still offers an extensive education program similar to that with which i was involved for many years, including my two-year stint as a co-director of christian education� that makes me an official elder in the church – a category not defined by age, i might note� my purpose here, however, is to describe and briefly analyze one central and totally secular application of our church’s pedagogical structure to legal education, and particularly to the trajectory of work with cases and clients in clinical legal education� i have directed the international human rights law clinic at american since its founding in 1990� that in-house clinic, part of a nationally recognized clinical program, takes from 16 to 32 students for the entire academic year� students work on real human rights cases, both domestic and international, while taking a parallel seminar called “the lawyering process�” the course and case-work is year-long, and graded credits are given to students for their participation� there are generally two to four supervisor/ teachers in the clinic, with each supervisor overseeing the work of four student pairs on case-work throughout the year�2 the work on cases is ever-changing, challenging and generally rewarding for me and students, but it can produce teeth-gnashing frustration with slow, bad decisions by courts or with general bureaucratic truculence and obstinacy� each year i have taught in clinic, i have been struck by the parallels between the group dynamics of the clinical class, rounds and case-work and the model provided in my church work� that model comes from a structure known as functional education, set out more fully below� both clinic and the adult church classes share a common commitment to learning life lessons through experience, and in both contexts we make extensive use of roleplays, simulation and other experiential devices to put us into situations in which tough choices are made, followed by reflection and learning from that experience� in this short reflection, i will briefly set out some background on adult education at st� mark’s church� i will focus on two particular aspects, functional education and the “units,” or context in which adult courses are taught� i will follow that with an examination of my own extrapolations to the literature on functional education in broader historical, philosophical and pedagogical context, and how closely they relate to the theories of adult learning in clinical legal education� the heart of my reflection lies in an exposition of the relationship between the functional unit and my experience of the stages of the clinical year� units have been called “descriptive stages of deepening human encounter and experience,”3 and they are my focus here� units relate to both the stages 4id� 5his theological work, organized as categories and general notes, and annotated by the rev� james adams, former rector at st� mark’s, can be found at http://www�stmarks�net/christian_ed/functional_ education/penniman�pdf (last visited on april 8, 2010)� 6categories, id� at 2� 7id� at 12� 8john dewey, democracy and education: an introduction to the philosophy of education (1916); john dewey, experience and education (1938); the essential dewey: volume 1, pragmatism, education, democracy (larry a� hickman & thomas a� alexander eds� 1998)� 9categories, supra n� 6, at 11� an essay on the stages of the clinical year in law school 132 of group development and the universal seasons of religious worship, both ancient and modern� i follow with a brief conclusion� it was the parallel between the church classes’ passage through the units and my observation that my clinic classes often pass through the same stages that led me to this writing� before developing that parallel more fully, however, let me indulge my academic curiosity by a brief exploration of the roots of functional education, both at st� mark’s and more widely� the functional model seems to have universal application, and the unit structure seems to repeat itself again and again, much as the church calendars of all faiths (and school semesters) provide an endless cycle of renewal� a. functional education at st. mark’s church the core written sources for my knowledge of functional education and the units are sparse indeed� they come from a literature used at st� mark’s to plan and carry out adult classes, collectively gathered under the rubric of functional education� functional education’s theories and structures provide the basic framework, both theological and practical, for our religious teaching, with strong echoes in clinical legal education� the core ideas of functional education were put into writing by dr� charles penniman, who served as an educational consultant to the parish in the 1950s during a time when church attendance was falling off generally�4 penniman’s terse writings, completed in 1954 and later annotated by a former rector, the rev� james adams, still guide functional education at a thriving st� mark’s today�5 all of the adult courses at st� mark’s, as i said above, are experiential� there is an eloquent explication by penniman of his own meaning of functional education that bears brief repetition here because it echoes so powerfully in my own clinical teaching� “people learn functionally and in problem situations,” penniman begins his categories� “therefore, we start with life � � � we specifically do not start with the straightjacket of goals where life is only hinted at� we start with life and only hint at goals�”6 later, penniman sets out what he calls the “laws of learning: (a) people learn what they are ready to learn; (b) people learn where there is a positive effect � � �; (c) people learn what they can use, and use now � � �” the commentary notes that “these are the principles of what has been called ‘progressive’ or ‘experiential’ education�”7 progressive education is the early twentieth-century movement most identified with the writings of john dewey, the great american educational theorist�8 penniman further explicates functional learning when he suggests that any issue can be approached at three levels: the ideological, the organizational and the functional� “it will be seen that the first two will never get us into the issue – that it is only on the third level that we get into the issue�” by this, the commentary suggests, he means that it is not enough to think intellectually about an issue (ideological), or to feel the emotional connection of loyal and enthusiastic group membership (organizational), but that true knowledge occurs only when people learn “how they function under pressure and where they find the resources they need� they are engaged at a personal level, what the bible calls the level of spirit�”9 133 international journal of clinical legal education autumn 2011 10frank s� bloch, the case for clinical scholarship, 6 int’l j� clinical educ� 7 (2004) (“there is an inherent tension in legal education between its academic and professional missions, sometimes characterized as a conflict between theory and practice�”)� 11peter a� joy, clinical scholarship: improving the practice of law, 2 clinical l� rev� 385, 394 (1996) (“� � � [t]here is an inherent tension between [teaching and scholarship], especially for clinical teachers�”)� 12rev� paul r� abernathy, rector of st� mark’s, sets out the basic tenets in introduction to functional education: theological underpinnings of st� mark’s christian education program, http://www�stmarks� net/christian_ed/functional_education/intro�html(last visited on april 7, 2010)� so, a typical class at st� mark’s is designed to explore religious issues in a real-life context� each class session during my time there was carefully planned around day-to-day issues that put the class into the moral and religious dilemmas of the day what penniman called “the issue�” a typical early class session in an adult confirmation class might begin, for example, with a scenario asking paired class members to identify the types of credentials by which people identify each other, or with small groups preparing skits on a topic such as depiction of an occasion in which people who did not know each other are gathering before a formal meeting� “the issue” in the first scenario might be as follows: “i want to be known to the world by my credentials, and i want to be accepted for who i am�” the issue in the second might be, “i want to make new friends, and i want to maintain my autonomy and privacy�” these issues are what are often referred to in clinical scholarship as the “inherent tension” between two competing dynamics, as for example, the alleged tension between theory and practice in legal education generally10 or between teaching and scholarship11 for clinical teachers� these are not choices between good and evil but between competing goods� yet we will, indeed we must, choose a course of action� another typical example has been the use of role-plays� leaders request, for example, that class participants divide into two groups, one to prepare the husband and the other to prepare the wife, to role-play a household discussion� in one such typical scenario, the wife has obtained an attractive job offer in another city, one that would require the husband to give up his well-paying job without the certainty of getting similar employment in the new location� the groups are given about a half-hour to prepare one of their members to be the role-player, after which the two roleplayers play out the scene for the class, in role, hopefully moving toward solution� the role -play goes on for 15 to 20 minutes, after which the role players and groups are de-briefed, followed by guided discussion, ending with some lesson on how one might approach this issue from a religious or faith perspective� as the course evolves, the issues become more central to life’s ultimate questions and thus more poignant� a typical role-play toward the end of the course involves two role-players, prepared by their groups, one playing a dying grandmother, covered in blankets and unable to speak, who is visited by a grand-son or daughter who must do all the talking in their brief meeting� these powerful role-plays open the class to discussion of their values, what matters, and how they might use a framework of religious faith to resolve the issues� there was, during my own classes and teaching, no overt suggestion that life problems would be resolved by “coming to jesus” or any other such proselytizing solution� participants were left to decide their path of their own faith journeys� many chose to take this journey within the st� mark’s community, a generally activist parish with extensive community outreach programs and a vibrant parish life� while the program allowed personal experience to drive the decision for involvement, as time went on, the courses offer a deeper meaning, “found in probing that relation between belief and behavior, that intersection of life at which issues of faith often freely arise and confront us�”12 an essay on the stages of the clinical year in law school 134 13abernathy, supra n� 4� 14robert c� solomon, existentialism 2-28 (2d ed� 2004)� 15see, e�g�, maurice r� green, anticipation, hope, and despair, 5 j� am� acad� psychoanalysis 215 (1977); julius e� heuscher, inauthenticity, flight from freedom, despair, 36 am� j� psychoanalysis 4 (1976) (using the language from the units, and quoting extensively from the existentialists)� the former rector of st� mark’s, rev� james adams, vividly demonstrates the unorthodox theology of st� mark’s by pointing to lsd research that demonstrates another paradigm of the class experience, found in the work of dr� stanislav grof, theoretical and empirical basis of transpersonal psychology and psychotherapy: observations from lsd research, 5 j� trans-personal psych� 15 (1973), cited in james r� adams & celia allison hahn, a way to belong (1980), at 55, n� 4 (using the “trauma of birth” to demonstrate four stages of development: “primal union with the mother, antagonism, synergism, and finally repartition from the mother�”)� 16see generally, yehudah zeilberger, functional education, (translated from hebrew, originally an entry in the educational encyclopedia (jerusalem, israel 1961)), http://www�math�rutgers�edu/~zeilberg/family/ enckhi1�html (last visited on april 8, 2010)� 17john c� flanagan, functional education for the seventies, 49 the phi delta kappan 27 (sept� 1967)� 18p� udagama, basic functional education: concepts and approaches (unesco, may 1976), at 13� 19mohammed rafi, freire and experiments in conscientisation in a bangladesh village, 38 econ� b. functional education in history and theology the rev� paul abernathy, current rector at st� mark’s, suggests that charles penniman’s work was solidly in the tradition of theological existentialism, particularly in the writings of søren kierkegaard, martin buber and paul tillich� as such, it reflects a concern with the core themes of existentialism: the absurdity of life and the inevitability of death; existence and nonexistence; and the intentionality of human behavior reflected in the power to choose as part of the human condition�13 kierkegaard (1813-1855) himself posited three “modes of existence”: the aesthetic, the ethical and the religious� as paradigmatic examples of each of these modes, kierkegaard chose don juan for the aesthetic, immanuel kant for the ethical, and the biblical abraham of the old testament for the religious� one can freely choose, kierkegaard argued, any of these courses of action to guide one’s life� consistent with the other existentialists, however, he posited that there was no legitimate rationale for choosing one over the other� one is thus left with the option of “taking hold” of life by passionately engaging in what one chooses�14 while these core ideas of existentialism may have been eclipsed in some ways by post-modern thought, the ongoing vitality of the st� mark’s congregation’s intellectual engagement is testimony to the currency of these theories in people’s lives� one can find additional support for functional approaches in the writings on existential psychotherapy as practiced in the 1970s�15 during the same period of time, the term “functional education” was used as a term of art, probably not coincidentally, to describe work in the fields of educational and development theory� in education, the term was used in 1961 to mean “education everywhere and at all times,” in “natural schools” emerging from the student’s needs, “spontaneously from the influence of the environment,” rather than from “deliberate, goal-oriented” traditional education� the basis in psychology for the term comes from william james in the united states, and eduard claparède in europe�16 another, similar meaning was given the term for an early computer program designed to meet individual learning needs of grade school students in pilot public schools, thus allowing the student to assume responsibility for her own learning�17 in a more overtly political context, functional education described a body of educational principles responsive to colonial oppression, designed to raise consciousness and promote deep social change, originally promoted by followers of m�k� gandhi in india in the 1950s and early 60s,18 and later by the brazilian educator, paulo freire,19 135 international journal of clinical legal education autumn 2011 a personal favorite of mine�20 thus, while the holistic discipline of functional education, at least as that term is used at st� mark’s church, includes biblical and spiritual dimensions, my focus here will be on the experiential – and wholly secular – uses of the theory, much as the term has been used in other theoretical contexts� i offer this extended preface to discussion of the units for three reasons� first, the theories of functional education find great resonance within clinical legal education, particularly in the teachings of such theorists as john dewey and paulo freire� their theories resonate in the methodology of clinical teaching today, not only in the united states but throughout the world� second, the methods themselves are remarkably similar in their application� our work in clinical teaching in law is grounded in the same experiential learning context as functional education, and we make extensive use of role-playing and simulation, in and out of class, as effective devices for adult learning� third, and most important, the units were developed in a religious context, as part of religious instruction� this provides important contextualization for their application to the field of law, as i hope the subsequent section will demonstrate� c. the units: repeating, seasonal stages in the life of a clinic for our purposes, penniman’s theory of the “units,” or stages of group development, is of greatest interest� unit theory, so far as i can tell, is not covered in penniman’s surviving writings; units are identified but not explicated� the most thorough exposition on the units is found in two sources� first, there is a booklet describing the evolution of an adult confirmation class, co-authored by the former rector, james adams, who annotated penniman’s work, together with a st� mark’s parishioner�21 additional material has been gathered by the current rector and posted to the church’s website, as noted above� the five units are curiosity, anxiety, hope, despair and anticipation� the terminology alone has a wholly existential ring� all planning of adult courses was done with the knowledge – now borne out by decades of experiential teaching – that the class will pass, as a group, through these units in fairly predictable steps, with predictable amounts of time spent in each unit� as paul abernathy, the current rector at st� mark’s, notes, “the units do not describe a linear movement, but, rather, provide a framework or context within which a very dynamic, indeed, ever repeatable process takes shape�”22 from a theological point of view, penniman’s units are said to follow the group dynamic of christ and his apostles as their relationships evolved and deepened� units “are drawn from a study of the disciples’ growing relationship with jesus as portrayed in the gospel accounts�”23 again, however, & political weekly 3908, 3909-10 (sept� 13-19, 2003)� “conscientisation” is the practice of raising consciousness of groups through education, in this case accomplished through the work of a large human rights ngo using a functional education program� 20i have recognized and promoted the influence of freire repeatedly in my writing on educational macro-theory using active and engaged teaching and learning methods, particularly in latin america, but wherever oppressed people gather to learn� richard j� wilson, the new legal education in north and south america, 25 stan� j� int’l l� 375, 424-427 (1988-1989); richard j� wilson, access to justice: an issue paper for usaid and legal services providers 3 (usaid, 1995); richard j� wilson, beyond legal imperialism: u�s� clinical legal education and the new law and development, in the global clinical movement: educating lawyers for social justice (frank bloch ed�, 2010)� 21james r� adams & celia allison hahn, a way to belong (1980)� 22abernathy, supra n� 4� 23abernathy, supra n� 4� an essay on the stages of the clinical year in law school 136 i am more interested in the socio-political dimensions, as well as the deeply cyclical nature of the movement through the units� in this sense, i am drawn more to the imagery of the mandala, the concentric circle so important to both buddhism and hinduism, or the yin and yang of taoism, as sources for symbolic reference� as noted above, there is, at some primordial level, an endless cycle of renewal linked to the seasons� in sir james frazier’s classic, the golden bough, he captures the ritualistic and mythical dimensions of those changes, and argues quite persuasively that religious traditions, particularly christian festivals, evolved from these early practices and beliefs: the spectacle of the great changes which annually pass over the face of the earth has powerfully impressed the minds of men in all ages, and stirred them to meditate on the causes of transformations so vast and wonderful� � � � in course of time the slow advance of knowledge, which has dispelled so many cherished illusions, convinced at least the more thoughtful portion of mankind that the alternations of summer and winter, of spring and autumn, were not merely the result of their own magical rites, but that some deeper cause, some mightier power, was at work behind the shifting scenes of nature� � � thus the old magical theory of the seasons was displaced, or rather supplemented, by a religious theory� *** taken together, the coincidence of the christian with the heathen festivals are too close and too numerous to be accidental�24 joseph campbell, too, captures the cyclical nature of the seasons in his book on the hero’s mythical journey, the hero with a thousand faces� “the wonderful cycle of the year, with its hardships and periods of joy, is celebrated, and delineated, and represented as continued in the life-round of the human group�”25 “we’re captive on the carousel of time,” says joni mitchell� “we can’t return, we can only look behind from where we came, and go round and round and round in the circle game�” for anyone who has taught for some time, this invocation of the inevitable rhythm of the seasons (particularly in the northern states), and of life itself, resonates deeply and powerfully in the predictable repetitions of semesters� my own clinic is a full academic year in length, so my experience of the clinic cycle is spread across the full nine-month academic calendar� because it follows the seasons from fall through spring, and washington, d�c� experiences the full range of seasonal variation (albeit sometimes milder than more deeply northern climes), the template is particularly appropriate in the full-year context� i do experience something of the same cycles in the more compressed schedule of the single-semester courses i teach outside of clinic, particularly those moving from winter into spring� what follows is my effort to apply the template of functional education units to the academic calendar in clinic� the parenthetical information shows my best estimate of the amount of time each unit, or phase, will take, followed by the church season symbolically invoked in the cycle of the christian calendar�26 24sir james george frazier, the golden bough 376-377, 419 (1922)� 25joseph campbell, the hero with a thousand faces 384 (1968)� 26one might note a similar set of cycles with other religious calendars, particularly those of the abrahamic tradition (christianity, judaism and islam), but the complexity and variation of religious calendars, combined with my scant knowledge of comparative religions, militate against such speculation� 137 international journal of clinical legal education autumn 2011 unit 1: curiosity (full year, weeks 1-6; one semester, weeks 1-3) (church season: the sundays after pentecost) it is the fall of the year, and at once, a time of beginnings and endings: the end of the growing season and the beginning of the school year� “in the northern countries of europe this has always been the primary harvest time�”27 people bring in food and store it, preparing themselves and their homes for the winter ahead� in psychological terms,28 this can be a period of time in which group members are either dependent on leaders or might flee from the awesome responsibilities facing them� in biblical terms, this was the time the disciples dropped everything and spontaneously followed jesus, feeling “their enthrallment with the authority and the depth of insight in his teaching�”29 the sundays after pentecost (the holiday commemorating the descent of the holy spirit to visit the disciples, are sometimes called whitsunday, so named for the white garments worn by those to be baptized during this time)� this was a time of teaching the behaviors expected of christians and “a preparation for possible trouble ahead�”30 in my experience, students are highly trusting and dependent on their clinic supervisors at this stage, and tend to react to us as sources for “answers,” as their teachers have been throughout their educational lives� the new modes of work, in both seminar and case-work, are both exhilarating and terrifying, as students face the first real responsibilities in their own cases� one device we use regularly in clinic orientation is a session in which students speak to their hopes and fears of what the clinic year will bring� the opportunity to articulate their fears out loud serves, at the same time, as a way for them to hear that their fears and hopes are shared with everyone else – they are not alone – and as a mode of breaking patterns of deep socialization in law school in which speaking of one’s emotions are explicitly or implicitly repressed as part of the ethos of “thinking like a lawyer�” student teams generally immerse themselves in their cases enthusiastically� they are often slow to reach out to clients for the first time, feeling a sense of dread and awe in establishing contact with a real person as part of a course of study; no course has ever involved a third party in the learning process� moreover, where culture and language are involved in the encounter, as is often the case in immigration or human rights cases, students often lack the most basic abilities to communicate, or they misread cultural signals in their enthusiasm to gather information� during the first simulation exercises on interviewing, including sessions on partnership collaboration and interpretation (linguistic and cultural), the students are like sponges soaking up knowledge in great experiential gulps� students’ learning curves are high and fast, but i find my supervision sessions include a lot of admonitions that they must find legal or factual answers for themselves and not through their teacher� as freire notes, this is no longer the “banking” system of education, in which the teacher “makes deposits which the students receive, memorize, and repeat,” but a deeply significant resolution of the “teacher-student contradiction,” where students come to realize that “both are 27a way to belong, supra n� 22, at 54� 28a way to belong, supra n� 22, (includes a chart, at 56, comparing the units on theological and psychological bases)� 29abernathy, supra n� 4� 30a way to belong, supra n� 22, at 54� an essay on the stages of the clinical year in law school 138 simultaneously teachers and students�”31 my role is focused on facilitating models for problem solving, noting potential alternative visions and ranges of action with regard to their actions, and pointing to research tools for law and facts, particularly for factual exploration with which they have had little or no experience after two years (for most) of law school� i value apprenticeship over discipleship� unit 2 – anxiety (full year, weeks 7-13; one semester, 4-6 weeks) (church season: advent) winter is approaching� as the days grow noticeably shorter, primitive people “undoubtedly feared that the sun was gradually disappearing and that the world would be left in cold and darkness� � � their anxiety was compounded by their memory of other winters� even if the sun returned, would their food last until spring? would they have enough fuel to keep themselves warm?”32 put more colloquially, this stage “characterizes the growing awareness that all ain’t what one perceived it to be�” this is the period in which the disciples experience “rising opposition to jesus by the religious and secular rulers and their own confusion about jesus’ intentions�”33 their beliefs, “when tested in the crucible of the human experience of suffering, prove insufficient to help one continue to make meaning or sense out of human existence�”34 theologically, the paradigm is the disciples’ statement, “teacher, do you not care if we perish?” psychologically, this is a period of counterindependence and flight�35 the advent season is the four sundays before christmas, but this unit or stage usually begins well before december, which is the end of the semester for us� by the first days of december, most students have turned their attentions away from clinic and toward other courses that require their attention� i associate the anxiety stage with the time from later october though semester-end� this is an ambiguous and uncomfortable period, but it can also be enormously productive and rewarding� students are growing in confidence and becoming more accustomed to the rhythms of clinic class, rounds and supervision� they feel comfortable coming into my office� at the same time, students are beginning to be annoyed by their supervisor’s constant response of “i don’t know� what do you think we should do?” students yearn for the comfort of answers (“teacher, do you not care if we perish?”), and the pressures of time and case schedules may constitute a siren call to the teacher to abandon the classic non-directive supervision model� this is also a time when the first signals of friction or fraying of the partnership relationship appear, and students are often anxious about raising the issue directly and openly� if court appearances loom, the anxiety level can be through the roof, with students grasping for a thorough “script” for what seems to them the unstructured, unpredictable and indeterminate event of a courtroom hearing� many have never seen a courtroom save for the mock courtrooms at school� more than anything, students often have begun to see a more human and unreliable side to their individual clients� clients often do not put their legal cases at the center of their universe, and may skip or be late for meetings� they may tell different and inconsistent versions of the facts of their 31paolo freire, pedagogy of the oppressed 58-59 (1970)� 32a way to belong, supra n� 22, at 54 33abernathy, supra n� 4� 34id� 35a way to belong, supra n�22, at 56� 139 international journal of clinical legal education autumn 2011 story, often leading students to conclude that clients are lying, rather than that memories are weak or that stories are often uncomfortable or impossible to recount due to trauma� legal issues that seemed simple when posed suddenly become immensely complex when the student teams struggle to make sense of the chaos of law and facts together� frustration and impatience rises, though often masked behind the traditional student-teacher encounter of formality and distance� another version of this phenomenon is the issue of the client as friend with students becoming confused about boundaries and limits, both moral and ethical� do they (or the clinic) pay for their client’s cab fare to clinic? how about a meal? donated clothing for the client’s new baby? bail for release from immigration detention? in the non-monetary realm, one paradigmatic issue is giving out a personal cell or home phone number, thus permitting the client to call at any hour of any day� if the client is a group or organization, how does the student team prevent itself from being seen as research help and not a full partner in the lawyering project? ethically, how much of the client’s story is available for public consumption? what if the client really is lying? what are our duties of candor to the tribunal? these and other questions may be exciting at first, but after a few weeks, they can become tedious or annoying� experienced faculty often feel the pressures of additional responsibilities outside of clinic, whether they be with regard to writing (a constant, gnawing anxiety), faculty committee work, or outside speaking in the fall “conference season�” and despite repeated admonitions to students to submit drafts early, student teams often – indeed inevitably – fail to plan enough lead time, leading everyone into a last-minute frenzy of producing that first court filing, brief or legal memorandum that may or may not have an unalterable and definitive due date� students learn the meaning of the term nunc pro tunc filing�36 unit 3 – hope (full year, weeks 14-15; one semester, week 7) (church seasons: christmas and epiphany) the sun is rising earlier each day and light is gradually, incrementally returning� it is no coincidence, as frazier suggests in the passage quoted above from the golden bough, that the date attributed to jesus’ birth is commensurate with the winter solstice� “since the dawn of history the day has been set aside for the celebration of hope� the return of the light is represented by the burning of the yule log and the promise of another spring by decorations made from branches of trees which remain green throughout the year�”37 one of the most basic symbols of hope is the birth of a baby� “in the birth of a child the moment is charged with potentiality� a new life has begun�”38 theologically, another symbol is the epiphany, the date in early january celebrated as the revelation of god in human form� it commemorates the transfiguration, the miracle in which jesus, atop a mountain and before the disciples’ eyes, is transformed into radiance, speaks with moses and elijah, and is called “son” by god� for the disciples, it is a defining moment that confirms their commitment� 36a fancy latin term meaning “now for then,” nunc pro tunc filings are the lawyer’s way of saying to courts, sorry, i’m late, but it’s just a day or two! 37a way to belong, supra n�22, at 54� 38id� an essay on the stages of the clinical year in law school 140 psychologically, this is a moment of resolution or catharsis�39 this stage “captures one’s sense of having come through a moment of suffering or a time of trial intact� feelings of relief or gratitude can pervade one’s being� hope may also manifest itself in one’s renewed conviction about one’s life and its purpose and a deepened relationship with god�”40 hope is a short but intense stage: i give it a week or two (not counting the christmas break) before we pass on, sometimes by degrees, into despair� in the clinical context, it is most readily recognizable in the first court appearance, hearing or other formal, public presentation, which is often timed to fall at this point in the calendar, but not always� these events are usually short episodes, often preliminary skirmishes in a long process, but they are the first such experiences for many students, and they are usually intense in their preparation� as a portion of overall time spent in clinic, these public events are by far the least amount of total time, but perhaps the greatest in psychic energy and lost sleep� the relief after such events, for both the students and me, is palpable� all of these feelings occur regardless of the outcome of the event, but a courtroom win produces the greatest sense of accomplishment and relief� even a loss tends to produce some catharsis or resolution, the feeling of having suffered and survived intact� usually student performance is excellent, but even if it is not, they have come through the fire and survived� for clients, this can also be a defining moment� outcomes of court hearings seldom, in my view, are driven solely by lawyer performance but much more by the power of a client’s story� the raw narrative power of a compelling story can transfigure a courtroom from a routine event into a personal epiphany for the client, and sometimes for the judge, because the students are able to let the client’s voice out through the story, to fill the room with pathos and compassion� a lesser and more timely version of the hope stage occurs simply because of the end of the semester� students usually feel some sense of accomplishment after a semester, and generally begin the second semester revived and excited� in a one-semester course or clinic, hope appears as the course passes “over the hump,” or middle of the course, and starts to head toward the end� it may not be a time of particular catharsis and group bonding, but it is a notable passage in any event� unit 4 – despair (full year, weeks 16-23; one semester, weeks 8-12) (church season: lent) it’s january, and february and march � � � and spring never seems to come� although lent itself is, as a formal matter, the 40 days between ash wednesday and palm sunday, it feels so very much longer� the cold, grey, dreary winter seems never to end� the 40 days of lent are a symbolically powerful number, as reflected in other meaningful biblical events, such as the 40 days of noah’s flood, the 40 years of wandering of the hebrew people, and the 40 days of fasting by christ in the wilderness� there is no particular magic to that number in the clinic calendar; despair is the much longer period of time from just after the beginning of the semester up to spring break, which for us is usually the second week of march� 39a way to belong, supra n�22, at 56� 40abernathy, supra n� 4� 141 international journal of clinical legal education autumn 2011 liturgically, ash wednesday, which starts lent, reminds us of our mortality� the ashes are imposed as the priest tells us to remember that we are dust and to dust we shall return� no reminder is more sobering and humbling in the church calendar� “primitive people suffered further agonies as they saw the last of their winter stores being consumed while the frozen earth, still covered with snow, gave no promise of returning to life�”41 this is a season of turning inward, of “self-examination and reflection�”42 “in some sense, [despair] is a deeper degree of anxiety, pointing to one’s awareness that mountaintop moments don’t last forever� the return to the valley ever waits�”43 if we see the bible story of the disciples as a metaphor for our own lives, we know that when faced with the really important moments, we often react as they did in jesus’ final days – “betrayal, denial, abandonment and subsequently, grief and repentance�”44 psychologically, this is fight or flight at its deepest and most powerful; disenchantment, counter-dependence and independence all can take hold�45 this can be an important period of reflection and ongoing learning for the students, but may also be a time when they are most frayed and brittle� if their partners or clients are uncooperative or life outside of clinic is not going well, this is often the time of students’ tear-filled private meetings with me� at its deepest point, the penniman materials suggest, despair occurs when “my life is out of control, or i feel condemned for my stupid decisions� in such moments i feel like i am filled with tears, so many tears that if i cried them all they would make a pool so large and deep that i might drown in them�” this “pool of tears” is an image reminiscent of the powerful allegory of alice in wonderland, falling into the pool of her own tears when in despair�46 graduating students often begin to feel the approaching end of their time in law school, and they know they are about to step off the cliff from the security of school into the real world of work life, into a deeper relationship with a partner (or not), or profound anxiety about high debts from law school costs and no immediate job prospects� in that long period where the end is not easily discerned, i am also more likely to be short and temperamental or to flee the scene of my students’ angst� i’m more impatient with the late work-product and increasingly reluctant to spend allnighters finishing and filing a brief or other court document� we all feel exhausted, and the week of spring break is only a tantalizing reminder of rest, not a real respite from the pace and demands of the uncontrollable schedule of law firm practice within a law school� unit 5 – anticipation (full year, weeks 24-28; one semester, weeks 13-14) (church seasons: easter, ascension, pentecost) spring and new life are finally here, the season of new beginnings � � � and school endings� the first flowers bloom, the cherry blossoms adorn the tidal basin near the capitol mall, and warm, gentle breezes return� the spring equinox brings the world back into balance, but then tips toward longer, sunnier days� “primitive people must have felt this same energizing effect of enthusiasm 41a way to belong, supra n� 22, at 55� 42id� 43abernathy, supra n� 4� 44id� 45a way to belong, supra n�22, at 56� 46categories, supra n� 6, at confirmation class, unit iv, despair, 9� an essay on the stages of the clinical year in law school 142 for life� � � it is no wonder that their celebration of joy and thanks for the renewal of the earth centered around easter, the goddess of fertility, and that they used the most obvious symbols of fertility, the egg and the rabbit�”47 as despair is to anxiety, anticipation is “a deeper degree of hope�” in this stage, “one can step out on faith into the unknown of new experience or deeper relationship with others, with god, and with one’s self�”48 in psychological terms, this is the stage of interdependence and consensual validation�49 the school year is about to end, as is the student’s work in clinic� sometimes, with luck, the student team’s case-work ends with some culminating event that corresponds to the end of the school year – a trial or major filing in court, a presentation or other major work-product in the project-based cases� as often as not, however, the case simply goes on, passing from one student team to another by means of a transfer memo� some files have up to ten transfer memos as the case lingers and lingers and lingers in judicial limbo, a giant circle game� graduation, too, is a great ritual festival of celebration and passage, always a favored event for me� i feel proud to have contributed to the developing sense of ownership of a new career by those precious few who have shared the journey of the clinic year with me� hopefully, in the best of cases, we have evolved from student and teacher to true colleagues� year-end is also a time of deeper reflection about what clinic students really want from their careers, from their professional and personal life� there is that sense of the great cycles of school and work life, from one student team to another, a time of endings that anticipates all the possibilities of new beginnings� conclusion let me note again that this is a template and a prediction tool; it has been mostly true for me in most years� the units do not always fall into perfect symmetry, but remarkably, they often do� i often take comfort in the knowledge that i am somewhere on the great wheel of the clinic seasons, deeply situated and moving at the same time� i can modify my behaviors in recognition of my place in the stages, or make accommodations for otherwise puzzling or perplexing student (or my own) actions� i’ve used the stages more than once to explain an interaction or event to fellow faculty or to the students themselves� perhaps you’ll find them as useful as i have� at the center of this annual journey lies the relationship between me and my students, and between my student and their client� the primordial principle defining those relationships shares the central lesson of karen armstrong’s the great transformation, which focused on the “axial age,” the period between 900 and 200 b�c� when the major pre-christian traditions – confucianism and daoism in china, buddhism and hinduism in india, judaism in israel, and philosophical rationalism in greece – took shape�50 during that period, what mattered “was not what you believed but how you behaved� religion was about doing things that changed you at a profound level� � � each tradition developed its own formulation of the golden rule: do not do to others what you would not have done to you� as far as the axial sages were concerned, respect 47a way to belong, supra n�22, at 55� 48abernathy, supra n� 4� 49a way to belong, supra n�22, at 56� 50karen armstrong, the great transformation: the beginning of our religious traditions (2006)� 143 international journal of clinical legal education autumn 2011 for the sacred rights of all beings – not orthodox belief – was religious�”51 as best practices for legal education puts it: first, do no harm to students�52 51id� at xviii-xix� 52roy stuckey and others, best practices for legal education 111 (clea 2007)� project1 the principles of ubuntu: using the legal clinical model to train agents of social change professor nekima levy-pounds esq and artika tyner esq1 for the past few decades, the legal clinical model has been used as a tool to teach law students the art of practising law.2 typically, this model focuses on providing law students with an opportunity to work with clients and to handle legal cases in a safe environment, and often in slow motion.3 although the legal clinical model has a number of advantages in assisting students to safely transition from law students to lawyers, it falls short in stressing the importance of using the law as a tool to achieve social justice within our society. the purpose of this paper is to propose that the legal clinical model be revamped to train law students to become not just lawyers, but agents the principles of ubuntu: using the legal clinical model to train agents of social change 7 1 professor nekima levy-pounds is the director of the community justice project (cjp) and artika tyner is a clinical law fellow at the university of st. thomas, school of law, minneapolis, minnesota. through the cjp, students can integrate the university of st. thomas’ mission into their clinic experience as they work for justice and reconciliation. following the sub-saharan african ideology of ubuntu, clinical students focus on creating systemic changes that will further humanitarian goals. the cjp strives to build bridges with community stakeholders and to work collaboratively to address problems in distressed communities. students conduct research and propose practical solutions to longstanding injustices, such as police brutality and racial disparities in the criminal justice, educational and juvenile justice systems. 2 see clinical anthology: readings for live client clinics (susan l. kay et al. eds., anderson pub. co., 2003) (clinic programs were introduced during the late 1960s as an alternative to case-book law teaching). 3 clinic models offer the skills based training necessary for the practise of law. many clinics provide an opportunity for students to engage with real clients in role as legal representatives. “under the supervision of an attorney, students enrolled in clinics have actual clients with real problems. many clinics provide legal assistance to those who cannot otherwise afford an attorney, helping to solve landlord-tenant disputes, settle domestic conflicts or defend against criminal charges. in these cases, the students often represent their client’s interests in a courtroom or at an administrative hearing. other clinics are non-litigation in nature. in these clinics, student may work in areas such as community economic development, small business representation, appellate advocacy and legislative advocacy.” how to get real world experience while in law school, newsweek, http://ejwguide.newsweek. com/chapters/hands-on.htm (last visited may 30, 2008). of social change.4 although we hope this article will be of relevance to a broad international audience, the critique focuses mainly on legal education in the united states. in order to more effectively train the next generation of leaders and advocates for social justice, law schools and other academic institutions must be willing to implement innovative teaching strategies that offer hands-on learning experiences and opportunities to more fully develop problem solving skills.5 a recent report entitled, “educating lawyers: preparation for the profession of law,”6 published by the carnegie foundation (“carnegie report”), highlighted the need for a more integrated approach to law teaching that draws upon innovative teaching techniques: the premise being that “legal education should seek to unite the two sides of legal knowledge: formal knowledge and experience of practice.” while the legal clinical model has been utilized in many law school programs to teach law students practical skills, this model could be taken to the next level by implementing an overt focus on social justice lawyering. clinic professors may prepare law students to address the needs of under-served communities by incorporating the sub-saharan african philosophy of ubuntu into the course curriculum. ubuntu draws upon a relational worldview by recognizing the universal bonds and sense of interrelatedness of humanity7 by challenging lawyers to use their legal skills to promote social good and further humanitarian goals. archbishop tutu characterizes a person with ubuntu as “available for others and to know that you are bound up with them in the bundle of life, for a person is only a person through other persons. and so we search for this ultimate attribute and reject ethnicity and other such qualities as irrelevancies.”8 by applying the principles of ubuntu, law students will be prepared to serve as agents of social change in their local communities and society at large. part i of this article will outline the pressing need to empower law students to lead and persevere in the face of societal injustice. it will also provide a framework for promoting social justice by 8 journal of clinical legal education december 2008 4 the philosophy of training students to be agents of social change is based upon the instructional pedagogy of dean charles houston. dean houston trained his students to use the law as an instrument to further social justice. he taught that “a lawyer's either a social engineer or he's a parasite on society.” a social engineer was a highly skilled, perceptive, sensitive lawyer who understood the constitution of the united states and knew how to explore its uses in the solving of "problems of … local communities" and in "bettering conditions of the underprivileged citizens." charles hamilton houston institute, http://www.charleshamilton houston.org (last visited feb. 5 2008). 5 the clinical curriculum should challenge students to think critically and ethically while promoting social good. professor gerald lopez characterizes the traditional legal curriculum as unchallenging. “unchallenged by a place that had no idea about, and apparently little interest in, how to draw on interdisciplinary knowledge that bears on both understanding and doing something to fight social, political, economic, and legal marginalization.” gerald p. lópez, rebellious lawyering: one chicano’s vision of progressive law practice, 5 (westview press 1992). 6 educating lawyers: preparation for the profession of law, the carnegie foundation for the advancement of teaching, (jossey-bass, 2007) http://www.carnegiefoundation.org/files/elibrary/e ducatinglawyers_summary.pdf (last visited june 9, 2008). 7 former president nelson mandela recognized the inevitability of "mutual interdependence" in the human condition that "the common ground is greater and more enduring than the differences that divide." anders hallengen, nelson mandela and the rainbow of culture, http://nobelprize.org/ nobel_prizes/peace/articles/mandela/index.html (last visited june 12, 2008). 8 desmond tutu, the rainbow people of god: the making of a peaceful revolution, 125 (doubleday 1994). integrating principles of servant leadership and ubuntu into the legal clinical model curriculum.9 part ii will offer a model curriculum and practical methods for using the legal clinical model to empower law students to lead and serve in under-served communities. part iii will provide examples of student-led initiatives that have promoted social justice in under-served communities. part iv concludes the findings of this article that the legal clinical model may be further developed to train future leaders and promote the furtherance of social justice. part i. the call to servant leadership and application of principles of ubuntu in order to take the legal clinical model to the next level, law schools must be willing to go in a new direction. the current structure of legal education, at least in the united states, is woefully inadequate in developing lawyers whose focus is on achieving social justice and who are passionate about using the law as a tool to address the needs of the poor and the disenfranchised. this notion of servant leadership is markedly absent from the law school curriculum, even though it helps to form the basis of the ideal attorney/client relationship. based upon robert k. greenleaf ’s essay entitled servant as leader, a servant leader is one who places the needs of others above his own needs.10 he describes the process of servant leadership that “begins with the natural feeling that one wants to serve, to serve first. then conscious choice brings one to aspire to lead.”11 the key priority is serving first and then leading. the lawyer as servant leader acts with humility and respect by simply asking the questions: how can i be of service? how can i, as an attorney, utilize my gifts and talents to serve communities and further the legal profession’s commitment to service? notable examples of lawyers as servant leaders include, former president of south africa nelson mandela12 and justice thurgood marshall.13 both men exemplified the moral courage, strength and passion for social justice14 that members of our profession should aspire to cultivate. these the principles of ubuntu: using the legal clinical model to train agents of social change 9 9 principles of servant leadership and ubuntu create a framework for developing a relational worldview. this worldview provides law students with the tools to promote “social solidarity.” “achieving social solidarity means that members of the society once again begin to recognize each other as fellow human beings and begin to share a concern in the common welfare and well-being of each other. social solidarity makes sense because only by ensuring the security, safety and well-being of other people can we hope to secure our own security, safety, and wellbeing.” tim murithi, african approaches to building peace and social solidarity, 6(2) african j. on conflict res. 9, 14 (2006). 10 robert k. greenleaf, the servant as leader, 7 (greenleaf center, 1991). 11 robert greenleaf, robert k. greenleaf center for servant-leadership at http://www.greenleaf.org (last visited mar. 12, 2008). 12 nelson mandela studied law at the university of the witwatersrand and obtained his law degree from the university of south africa in 1942. mandela spent 27 years in prison due to his efforts to dismantle the south african apartheid. nelson mandela, one nation, one country, xi (phelpsstokes institute for african, african-american, and american indian affairs, 1990). 13 thurgood marshall was instrumental in the drafting of the constitutions of ghana and tanzania. he was also counsel for the landmark case of brown v. board of education, which led to the desegregation of u.s. schools. in 1967, thurgood marshall was appointed to the u.s. supreme court. thurgood marshall supreme court justice, biography, http://chnm.gmu.edu/courses/122/hill/ marshall.htm (last visited mar. 12, 2007). 14 establishing a working definition of social justice is an integral part of examining the role of attorneys and evaluating teaching methods. social justice has been characterized as the process of remedying oppression, which includes “exploitation, marginalization, powerlessness, cultural imperialism, and violence.” pamela edwards & sheila vance, practice and procedure: teaching social justice through legal writing, 7 berkeley women’s l.j. 63 (2001). servant leaders fought relentlessly in the trenches for justice, peace, and the furtherance of humanitarian goals by waging combat through the use of their legal skills. this idea of servant leadership is in stark contrast to the implicit and sometimes explicit message that is often given in a law school environment, where one’s own need to pay off student loans and to live a comfortable lifestyle is placed above the importance of using one’s legal talents to benefit those who face oppression and disenfranchisement. because of the failure of law schools to explicitly articulate the responsibility to use the law as a tool to help those less fortunate, law students, generally speaking, abandon this responsibility when it conflicts with their desire for worldly comfort. even when law students are passionate about social justice, they are encouraged to work within the parameters that have already been defined within the profession, such as serving as a public defender or legal aid lawyer, even though opportunities to correct wide-scale legal injustices are often diminished within these positions, primarily due to limited resources and time constraints. such wide-scale legal issues may include racial disparities within the adult and juvenile criminal justice systems, the prevalence of police misconduct and brutality in poor communities of color, and the reintegration challenges facing people with criminal histories. although poor communities of color are disparately impacted by these issues, they are least likely to receive adequate assistance in addressing such problems. the severity of the problems facing poor communities, coupled with the funding and resource issues faced by public service organizations, means that law schools are in a prime position to use legal talent and resources to resolve some of our nation’s most challenging problems. law schools in general, and law school clinical programs in particular, have the ability to help shape legal minds and to prepare law students to serve the community in a more holistic manner. in addition to strengthening the leadership capabilities of law students, there is also a dire need to foster a more meaningful commitment to public service. through the study of ubuntu, law students are encouraged to focus on ministering to the needs of others through the utilization of their legal skills which reinforces the concept of servant leadership by focusing on “serving first.” the study and application of principles of ubuntu requires a shift in cultural perspectives related to the concept of community from the western ideas of individual autonomy15 to the focus on the collectivist and communal nature of african culture.16 in relation to the practice of law, ubuntu focuses on the “interrelatedness” of the human experience that requires each person to use his/her gifts and talents to better society. the concept of ubuntu was also encompassed in rev. martin luther king, jr.’s vision of “interrelatedness.” king characterized life as follows: “in a real sense all life is inter-related. all men are caught in an inescapable network of mutuality, tied in a single garment of destiny. whatever affects one directly affects all indirectly.”17 10 journal of clinical legal education december 2008 15 professor dirk louw characterizes western society as competitive and individualistic. “individual interest rules supreme and society or others are regarded as nothing but a means to individual ends. this is in stark contrast to the african preference for co-operation, group work or shosholoza (“work as one,” i.e. team work).” dirk louw, ubuntu and the challenges of multiculturalism in post-apartheid south africa, http://www.phys.uu.nl/~unitwin/ ubuntu.doc (last visited sept. 1, 2008). 16 according to human rights advocate ahmed sirleaf ii, “ubuntu focuses on the essence of commonality that binds all together.” sirleaf suggests that cultures began to globalize; hence by applying ubuntu to clinical education african philosophical theories will be transported across national borders and cultural groups to promote social justice. telephone interview with ahmed sirleaf ii, the advocates for human rights program associate, liberian truth and reconciliation commission (june 4, 2008). 17 martin luther king, the american dream, http://www.indiana.edu/~ivieweb/mlkad.html (last visited sept, 1, 2008). the principles of ubuntu encompass the sense of “interrelatedness” that addresses the societal need for love, peace, and justice. by embracing principles of ubuntu, law students are trained to recognize the power that a law degree provides in creating access to justice, protecting the rights of those marginalized, and shaping public policy. according to archbishop desmond tutu: …a person with ubuntu is open and available to others, affirming of others, does not feel threatened that others are able and good, for he or she has a proper self-assurance that comes from knowing that he or she belongs in a greater whole and is diminished when others are humiliated or diminished, when others are tortured or oppressed.18 the clinic course curriculum can provide law students with the tools to become an agent of social change and cognizant of their responsibility to work towards the greater good of society. this responsibility requires being an advocate for justice, fairness, and equity. the 1997 south african governmental white paper for social welfare asserts: the principles of caring for each other’s well-being…and a spirit of mutual support…each individual’s humanity is ideally expressed through his or her relationship with others and theirs in turn through a recognition of the individual’s humanity. ubuntu means that people are people through other people. it also acknowledges both the rights and responsibilities of every citizen in promoting individual and societal well-being.19 by incorporating the principles of ubuntu into the clinic curriculum, law students are reminded that they can be the change they hope to see in the world.20 historically, lawyers have been pioneers in leading social change in various arenas: namely, political, social, and economic. experience has shown us that, “the law can be an incredible vehicle for social change and lawyers are at the wheel.”21 our law degrees provide us with the ability to create social change through our power to build, restore, and transform communities. legal educators play an integral role in giving more focused attention “to the actual and potential effects of the law school experience on formation of future legal professionals.”22 clinic professors have the opportunity to guide law students in the process of becoming agents of social change. with these ideals in mind, we created the community justice project (“cjp”) at the university of st. thomas school of law in minneapolis, minnesota. throughout this paper, we will provide a brief description of the cjp, the curriculum that we created, along with a synopsis of some of the current initiatives that we have implemented through the cjp. we believe that the cjp serves as an ideal model which can be replicated by other clinic programs and community outreach organizations to develop lawyers into servant leaders and effective agents of social change. the principles of ubuntu: using the legal clinical model to train agents of social change 11 18 tutu, supra note 10 at 125. 19 department of welfare, private bag x901, republic south africa, august 1997, http://www.welfare. gov.za/documents/1997/wp.htm (last visited june 19, 2008). 20 “we need to be the change we wish to see in the world.” mohandas gandhi as quoted in "arun gandhi shares the mahatma's message" by michel w. potts, in india – west [san leandro, california] vol. xxvii, no. 13 (feb. 1, 2002) p.a34. 21 “hillary clinton on a law career in public service,” newsweek, http://www.msnbc.com/id/ 14269839/site/newsweek/print/1/displaymode/1098/ (last visited june 7, 2007). 22 carnegie report at 10. part ii. instructional practices: cjp class readings, group discussion, observation an integral step in preparing law students to become agents of social change is to deliberately and strategically incorporate principles of social justice into the legal clinical curriculum and programming. recently, the carnegie report highlighted this need by identifying that the key challenge of legal education is “linking the interests of legal educators with needs of legal practitioners and with the public the profession is pledged to serve.”23 clinic professors can aid in this training by engaging law students in ongoing dialogue about social justice issues, exposing students to the diverse life experiences of community members, and encouraging them to use the law as a tool to promote justice and social change. with these goals in mind, the curriculum of the cjp was designed to be thought-provoking, challenging, and enlightening. the training materials are used to transform the students into agents of social change during their clinical experience and beyond. a. cjp approach to community lawyering the cjp curriculum is based upon a model of community lawyering that focuses on working collaboratively within an interprofessional setting, empowering marginalized populations, and providing leadership training for aspiring attorneys. the community lawyering model focuses on holistic advocacy. further, the community lawyer addresses the root cause of the social problems in under-served communities; instead of focusing merely on resolving a legal issue. the model is a client-centered approach that answers questions such as: what support is needed to remedy the legal issue and promote community-building? how can similar circumstances be prevented in the future? how can the community benefit from an interprofessional model of partnership with counseling services provided by social work and psychology professionals? these principles are taught through a variety of course materials, which include historical texts, local media sources, and philosophical readings. the diverse array of readings provides students with the tools to effectively advocate at a grassroots level, one community at a time. at its core, the cjp encourages students to reappraise what it means to be a lawyer. the process of community lawyering used by the cjp begins with an invitation from the community. the community should welcome the community lawyer into the community. cjp received its invitation from the st. paul national association for the advancement of colored people (naacp) to address quality of life issues of the african american community. the next step is the immersion process which uses the principles of ethnography. during this process, the community lawyer becomes a participant observer. the community lawyer must become immersed in the community so gaining a deeper understanding of the root causes of the legal and social issues. for instance in our clinic, cjp students gain hands-on experience by reading a community newspaper, court observations, organizing community town hall forums, and spending time at a local coffee shop meeting with community members. through these experiences, our students gain cross-cultural competence skills and establish a positive rapport with the community. the next step takes place during the problem solving phase. in this phase, the community lawyer works with the community in planning steps to achieve the community’s goals. the key focus is on 12 journal of clinical legal education december 2008 23 carnegie report at 4. collaboration. the community lawyer uses a variety of skills at this stage such as fact investigation, writing as advocacy, critical thinking, reflective listening, negotiation, and mediation. the final stage is implementation. this is the process of empowering the community. the community lawyer works with the community to help it realize its power and protect its legal rights. although the community lawyer performs a key galvanizing role, overall, this is a community-led initiative. i. utilization of an interprofessional approach traditionally, lawyers work independently to resolve legal challenges that clients face. however, each client may also have a myriad of extra-legal issues ranging from psychological to social issues. the interprofessional model can offer a paradigm shift by focusing on holistic lawyering. “holistic lawyering is analogous to holistic medicine. just as a holistic medical provider treats all aspects of a patient suffering from a particular medical illness, a holistic lawyer addresses the whole person and not just a client’s particular legal issue.”24 the practice of holistic lawyering requires collaboration with other problem-solvers in various professional roles rather than overlooking the benefits of an interprofessional approach.25 this is the case especially when working with under-served communities in high-need areas since a legal problem may also be coupled with a need for case management26 due to the absence of economic development and revitalization efforts in the community. psychological services27 may also be needed based upon traumatic life experiences suffered from living life in the margins of society. cjp students work collaboratively with psychology and social work students as they strive to meet the needs of underserved communities while gaining practical real-world experience and cultural competency skills.28 one such example is the joint efforts of social work and cjp students in addressing the achievement gap in the local public school system. students served on an advisory board that brainstormed methods to improve the quality of education received by african-american students in saint paul, minnesota and methods to bridge the achievement gap. ii. empowerment of communities agents of social change must also empower the communities served by aiding in the fight against injustice. community members should play a fundamental role in addressing the community’s needs. this goal is obtainable when attorneys become sensitive to the needs of the community and overcome the tendency of taking over the community’s problems. cjp students are encouraged to the principles of ubuntu: using the legal clinical model to train agents of social change 13 24 innovations in the delivery of legal services: alternative and emerging models for practicing lawyer, american bar association (2002). 25 lópez, supra note 5 at 37. 26 social work services provides comprehensive client case management. case managers develop extensive knowledge on a variety of issues affecting clients, such as housing, transportation, food support, linkages to english language classes, job training and other education programs. case managers provide much needed emotional support to clients embroiled in difficult legal issues. university of saint thomas interprofessional center available at http://www.stthomas.edu/ ipc/about/ipc_collaboration.html. (last visited july 1, 2008). 27 psychological assessments are a frequent request from both external referral sources and the center’s legal professionals. request range from a simple screening to a comprehensive psychological report to be used for treatment plan development, educational, and vocational planning or for informing a legal process. id. 28 the community justice project is a part of the interprofessional center for counseling and legal services. this is a joint effort by the school of law, the graduate school of professional psychology (a division of the college of applied professional studies), and the university of st. thomas/college of st. catherine school of social work. id. prevail over this inclination by being responsive to the needs of the community. the role of the community lawyer and common lessons and pitfalls are discussed and examined through the study of lucie white’s to learn and teach: lessons from driefontein on lawyering and power.29 the process of community empowerment through social justice lawyering is exemplified in professor white’s case study of the driefontein community.30 the study focused on the process of a south african community that successfully organized to combat subordination with the aid of a lawyer and community organizer who followed a model of change-oriented lawyering.31 within a change-oriented lawyering model, a lawyer engages in a mutual learning process while helping a community to appreciate the full measure of its own power.32 the learning process began when the lawyer received an invitation from the village to aid in resisting government mandated removal from its community to designated homelands.33 the lawyer and organizer utilized an interprofessional approach in addressing the community’s needs. their goal was to empower the community to overcome both the current and even future challenges. “the villagers did not hand their problems over to the lawyer, who then acted for them. rather the lawyer and organizer worked with the villagers to help them gain power.”34 one such example is when the organizer assisted the community in creating social services. this included the creation of legal and health clinics to improve the accessibility of social services. the community also used performance arts as a form of cultural expression and political resistance. the village women performed a play about the proposed removal through african movement and dance. this example illustrates how the lawyer and organizer helped the community members identify and cultivate their strengths.35 as illustrated in the case of driefontein, lawyers in partnership with other professionals can play an integral role in empowering communities. once a community has realized the full potential of its power, community members are likely to be prepared to address future social, political, or legal matters more effectively. iii. leadership and problem solving skills development the foundations of leadership principles are developed through the reading of the servant as leader, related lecture, and classroom discussions. during this lecture, students are challenged to identify the characteristics of the servant leader and discover ways to incorporate the principles of servant leadership into their professional identities.36 students also complete a servant leadership inventory which aids them in identifying their leadership capabilities and then working to develop those qualities.37 leadership principles that are outlined in paulo friere’s pedagogy of the oppressed are also discussed during class and incorporated into the legal training. for example, cjp students draw upon the lessons learned by freire as he fought to increase access to education for oppressed 14 journal of clinical legal education december 2008 29 1988 wis. l. rev. 699 (1988). 30 id. 31 id. 32 id. at 767. 33 id. at 706. 34 id. at 737. 35 id. at 725. 36 sample discussion questions include, but are not limited to: who is the servant leader? how can the leadership crisis be characterized? what are practical ways to be a servant leader? does legal education foster leadership growth and potential? 37 university of nebraska, becoming a servant leader: do you have what it takes?, http://www.ianrpubs.unl.edu/epublic/live/g1481/bui ld/g1481.pdf (last visited feb. 5, 2008). groups in brazil.38 one key lesson that cjp students learn is that they must engage in a mutual learning process39 in order to effectively serve the needs of the community. according to freire, “revolutionary leaders cannot think without the people, nor for the people, but only with the people.”40 this mutual learning process can be enhanced by building trust within the community and respecting its members. “the people must find themselves in the emerging leader, and the latter must find themselves in the people.”41 freire also highlights the importance of engaging in dialogue with community members in order for lawyers serving as agents of social change to develop a shared vision for the future. “dialogue is the encounter between men, mediated by the world, in order to name the world.”42 through the dialogue process, relationships can be formed between community members and lawyers. the foundation of these relationships is recognizing the interrelatedness of the human experience and understanding that “common ground is greater and more enduring than the differences that divide.”43 integral to the training of agents of social change is the development of creative problem solving techniques.44 professor levy-pounds’ motto is “think outside the box and reshape it.” in essence, students must dare to be bold in the face of injustice and show commitment to creating equal access to justice. one such example is the exploration and practical application of restorative justice principles. cjp students are required to read howard zehr’s the little book of restorative justice as a foundational text on the theory of restorative justice.45 this text challenges students to contrast the punitive nature of the traditional american criminal court system with the transformative power manifested through various restorative justice models.46 after reading the text, cjp students are able to identify the benefit of restorative justice practices of “putting things right” by focusing on the harm to and needs of all participants (victims, offenders, and community the principles of ubuntu: using the legal clinical model to train agents of social change 15 38 “freire was a pioneer in promoting the universal right to education and literacy as part of a commitment to people’s struggle against oppression.” paulo freire, cultural action for freedom, 1 (harvard educational pub. group; 2000 ed. edition, penguin, 2006). freire sought to empower those who were illiterate by enabling them to become oriented with the world around them through civic engagement. this orientation process recognized their humanity through the integration into the very fabric of society and gave them the freedom to change the future. id. at 14. 39 “they must understand how to educate those with whom they work, particularly about law and professional lawyering, and, at the same time, they must open themselves up to being educated by all those with whom they come in contact, particularly about the traditions and experiences of life on the bottom and at the margins.” lopez, supra note 5, at 37. 40 paulo freire, pedagogy of the oppressed, 112 (new york, 1970). 41 id. at 144. 42 id. at 69. 43 anders hallengren, nelson mandela and the rainbow culture, http://nobelproze.org/cgi-bin (last visited june 25, 2008). 44 an integral element of problem solving is creating a strategic plan of action. when reflecting upon his prior chairmanship of the washington state bar association, bill gates sr. highlights the need for lawyers to develop problem solving skills. “the essence of civil work is problem-solving: the city needs a zoo, our schools need to pass a levy, foster children deserve a better shake. there are thousands of problems, virtually none of which are going to be rectified without organized citizen involvement.” “bill gates sr. on public-service law, newsweek, http://www.msnbc.msn.com/id/15385956/site/news week/ (last visited june 5, 2007). 45 cjp students are also required to read kay pranis, face to face: spaces for reflective community dialog to gain a deeper understanding of the healing power of restorative justice, specifically sentencing circles, http://www.corr.state.mn.us/rj/publications/facetofa ce.htm (last visited feb. 5, 2008). 46 restorative justice takes a holistic approach by addressing the needs of victims, encouraging offenders to take responsibility, and involving those affected by an offense in the process. howard zehr, the little book of restorative justice (good books, 2002). members), addressing obligations of each, using an inclusive and collaborative process, and involving all stakeholders.47 cjp students also receive hands-on experience in applying these principles. through the restorative justice project,48 cjp students are able to help create a sense of community, bring all participants together and extend an invitation for dialogue and healing. cjp students also participate in restorative justice circles as community members. in this role, cjp students serve as community participants by expressing the concerns of the community related to promoting social welfare, upholding civil rights and liberties, and ending police brutality. the benefit of students’ involvement in circle processes are numerous and far-reaching. b. community news – insight news in order to become more culturally competent and to gain a deeper understanding of the needs of the community being served, cjp students are required to read the weekly edition of insight news and discuss the current events in class. insight news is a local journal for community news, business, and the arts. the mission of insight news is “to inform, instruct and inspire.”49 insight news lives its mission by offering a wide array of articles that identify and address the diverse needs of the african american community in the twin cities. the weekly edition includes articles ranging from historical perspectives on race to emerging civil rights issues that impact the local african american community.50 during weekly class discussions, students share the stories in insight news that caught their attention. one such example was insight news’ coverage of the national mortgage crisis.51 insight news covered this story from the onset of the crisis by offering firsthand accounts of the impact of foreclosure on the community, interviewing legislators, and tracking the related predatory lending bill.52 these stories enabled students to gain a deeper understanding of the mortgage crisis phenomenon. it also inspired students to initiate their own efforts in the community. cjp students, along with student representatives of the lawyers’ council for social justice53 canvassed communities in north minneapolis (which has a high concentration of poor african-americans) and provided information on protection against predatory lending and foreclosure.54 cjp students also played an active role in hosting and participating in a law school-sponsored forum on mortgage fraud.55 16 journal of clinical legal education december 2008 47 id. at 19. 48 cjp students have played an integral role in the formation of a restorative justice project. in collaboration with the saint paul city attorney’s office and saint paul police department, a restorative justice project has been created that will address the racial disparities in the charging of obstructing of legal process (olp). this project created an opportunity for a dialogue related to community/police tension and offers the possibility of aiding in the healing of these relationships. 49 insight news, (minneapolis) available at http://www.insightnews.com/ (last visited feb. 5, 2008). 50 examples include: public hearing on the enforcement of human rights and civil rights and two powerful images that can free your african mind. 51 acorn calls for freeze on foreclosure, insight news (minneapolis), aug. 31, 2007. 52 bush proposals to help those at risk of home loans foreclosure needs a dose of scrutiny, insight news (minneapolis), sept. 17, 2007. 53 this group was started in 2006 by a first year law student, sonia laird, at the university of st. thomas school of law. 54 insight news also published articles that focused on the needs of the north minneapolis community. conversations on managing the mortgage crisis in north minneapolis, insight news (minneapolis), feb. 8, 2008. 55 see mortgage fraud forum, university of saint thomas school of law, http://www.stthomas.edu/ethicalleadership/research /conferences/mortgage%20fraud%20forum1.html c. small group discussions and setting ground rules the cjp course curriculum is designed to be discussion-based and interactive. in order to reach this goal, students must feel free to express themselves in a safe and respectful learning environment. this sense of safety is created by setting ground rules for discussion. the first rule is being respectful by acknowledging that each member of the group has a different “life lens,” which is shaped by personal life experiences, faith journey, culture, heritage, upbringing, and/or socioeconomic status. in addition, everyone must trust that the ideas and opinions expressed in class are meant to create a deeper understanding, promote development, and foster transformation and growth. all members of the class must also agree that the class discussion will be kept confidential in order to build trust and strengthen interpersonal relationships. it is also paramount that students express a willingness to grow and explore. for instance in the marginalized populations class series,56 students examine the social construction of race in america and the history of the civil rights movement. these class discussions are typically very intense since students are addressing issues like institutionalized racism, poverty, and human rights violations. this leads to the next rule that students must also be open to being challenged and stretched in their ways of thinking. collectively, cjp students embark on a learning journey together and must be willing to explore differing views. personal attacks are not allowed, but ideas are challenged and questioned. through this dialogue process, cjp students grow immensely and their worldview evolves as they become agents of social change. d. court observations we have found that nothing is more invaluable than gaining firsthand experience in the community being served. cjp students are required to complete five hours of court observation, which includes three hours of adult criminal court and two hours of juvenile court. they observe court room dynamics, examine procedural fairness, and collect demographical information. after their visit, students draft and submit a memorandum related to their experiences. students are also encouraged to perform a police ride-along, which consists of accompanying police officers as they perform routine duties in the local community. in addition, students are required to attend and observe a community conferencing session. this allows students to gain a deeper understanding of restorative justice practices.57 the principles of ubuntu: using the legal clinical model to train agents of social change 17 56 the marginalized populations lecture is a two-part class series. marginalized populations part one focuses on cultural competence in the practice of law. this includes the examination of gender, ethnic, cultural, and socioeconomic classifications. the class reading consists of in god’s image, pastoral letter on racism authored by archbishop harry j. flynn, http://www.osjspm.org/racism.htm, racial disparity initiativecouncil on crime and justice, h t t p : / / w w w. c r i m e a n d j u s t i c e . o r g / p a g e s / publications/articles/increasing%20diversi ty_commentary_06_10_02.pdf and the viewing of poverty usa video clip, http://www.nccbuscc.org/cchd/povertyusa/tour2.htm marginalized populations part two focuses on the needs of juveniles in distressed communities. the class readings consist of building blocks for youth, http://www.buildingblocksforyouth.org/advocacygu ide.html. 57 the community conferences are facilitated by restorative justice community action, inc., online at http://www.rjca-inc.org (last visited jun. 19, 2008). e. reflective essays educational theory supports the notion that the formula for learning begins with experience plus reflection. the process of learning is about “action, reflecting, adjusting and acting again.”58 cjp students are encouraged to become reflective learners. throughout the semester, students complete reflective exercises, which include drafting essays, journaling, and participating in small group discussions. this process of reflection allows students to discover methods for merging their personal identity and professional identity without the need to compartmentalize views and perspectives. “using alternative approaches in legal writing teaches the value of both the legal voice and the personal voice, especially the voice of ‘outsiders’.”59 as both the legal and personal voices emerge, students are encouraged to write reflective essays or journal entries that explore their worldview as it evolves throughout their educational and professional development. this approach enables students to identify how their life experiences have shaped the way that they view the concept of social justice. additionally, students are encouraged to evaluate whether this view has changed based upon class discussions, volunteer experience, and participation in clinical programming. part iii. description of current cjp initiatives through the cjp, we have implemented a number of community-based initiatives that seek to address some of the underlying issues that impact poor communities of color. some of our current initiatives include the development of a reintegration and prevention program for africanamerican boys and men in saint paul, an evaluation of the civilian review complaint process for alleged victims of police misconduct and brutality, and a community awareness program to educate youth and their parents about the impacts of involvement in the juvenile justice system. each program is unique and requires the cooperation of local city government, the police department, the city attorney, the public school system, and the community in order to be successful. there follows a brief description of the scope of each project and its expected outcome. a. reintegration initiative: brotherhood inc. our goal is to create a reintegration program that will assist young people from poor communities in becoming upwardly mobile. we have had several meetings with the saint paul city attorney’s office, the saint paul mayor’s office, a representative from the saint paul police department, and the saint paul naacp regarding the disparate rate of involvement of poor african-american youth within the juvenile justice system. the decision was made to go beyond discussing these issues and to actually do something that will benefit the youth in question, and society at large. the cjp agreed to take the lead in preparing a proposal for consideration by stakeholders. the first step was to identify an appropriate program model. we chose homeboys industries out of los angeles as the model because of the high quality and effectiveness of the program. in order to gather accurate information, two students from the cjp flew to los angeles, california to visit 18 journal of clinical legal education december 2008 58 nelson mandela institute, available at http://www.mandelainstitute.org.za/liberation.aspx (last visited june 25, 2008). 59 mahoney, calmore, wildman, teachers’ manual to accompany social justice: professionals, commuities and law cases and materials 4 (west publishing company, 2003), citing edwards and vance. homeboy industries and to interview members of their staff.60 following their visit, the students prepared an extensive report examining the feasibility of implementing a similar program in saint paul. in february, 2008, the proposal was submitted to the mayor of saint paul, along with representatives from various foundations within the state of minnesota. this was the birth of brotherhood inc., a comprehensive reintegration and prevention program that will offer a social enterprise and integrated social services for young african-american boys and men who have had contact with the criminal justice system. most recently, the cjp has formed a partnership with a local neighborhood development corporation to bring the vision of brotherhood, inc. to fruition. b. evaluation of civilian review process based upon concerns raised by the saint paul naacp and members of the african-american community in saint paul, the cjp decided to examine the complaint process that is used to evaluate grievances by alleged victims of police brutality and misconduct. the goal of the project is to uncover hidden biases and gaps in the process that need to be addressed in order to ensure that justice occurs for those filing complaints. cjp students interviewed members of the police civilian review commission and examined the appropriateness of the forms that are used to report grievances for clarity and readability, as well as the means by which the public may obtain complaint forms. the results of the students’ inquiry, research and investigation was a written report that includes recommendations for improving the process and increasing access to justice. cjp students also prepared sample forms for adoption by the police civilian review commission to both simplify and clarify the process. c. community awareness program (cap) recent reports indicate that children of color are substantially over-represented in the juvenile justice system.61 once children become involved in the juvenile justice system, there are a number of collateral consequences in place which prevent both their successful reintegration into society and, for those living in under-served communities, their opportunities for upward mobility. in response to this growing issue, the cjp set out to create awareness amongst youth and their families in the twin cities by developing the curriculum for the community awareness program (cap). through cap, cjp students go out to local public schools with a high concentration of poor children of color and into the community to conduct presentations related to children and the law. the scope of the presentations includes the impacts of truancy violations, petty theft, school fights, and loitering on one’s ability to find future employment, housing, and to gain college admission. children and their parents are also advised on current trends in the law, such as: how a youth in possession of a bb gun may be charged with a felony; and an explanation of the lifetime bar on obtaining certain types of employment licenses through the minnesota department of the principles of ubuntu: using the legal clinical model to train agents of social change 19 60 cjp students, dan olson and luis verdeja, visited homeboy industries on nov. 1, 2007. they conducted interviews of staff members, peer navigators and homeys. they also toured the homeboy industries and homegirl café. 61 the 2007 america’s cradle to prison pipeline report highlights the following statistics: a black boy born in 2001 has a 1 in 3 chance of going to prison in his lifetime; a latino boy a 1 in 6 chance; and a white boy a 1 in 17 chance. black youth are about four times as likely as their white peers to be incarcerated. black youth are almost five times as likely to be incarcerated as white youth for drug offenses. children’s defense fund, available at http://www.childrensdefense.org/site/docserver/cp p_report_2007_foreword.pdf ?docid=5062 (last visited jun. 19, 2008). human services for commission of certain types of crimes. the goal of the project is to create awareness amongst children and families who, statistically speaking, are more likely to come into contact with law enforcement. our hope is that preventative education, such as is offered through cap,62 will result in fewer children becoming involved in the juvenile justice system. as illustrated above, our goal is to use the law as a tool to effectuate change on behalf of underserved communities. many of the residents of these communities are over-represented within the criminal justice system, yet are under-served and often receive inadequate legal assistance.63 through the cjp, we strive to find gaps within the system that are detrimental to the community and to offer recommendations for improvement. law students benefit immensely from their involvement in cjp initiatives as they are encouraged to “think outside of the box,” engage in problem-solving, collaborate with various stakeholders in local government and the community, participate in meetings of grassroots and civil rights organizations, and use their legal skills to benefit those from disadvantaged backgrounds. working on cjp projects has the added advantage of empowering law students to understand the importance of giving back to the community and the great responsibility that comes with having an advanced degree – a responsibility that is often under-emphasized throughout the law school experience. finally, by meeting with, collaborating with, and speaking on behalf of the community, law students become more culturally competent and able to interact with people from a variety of racial and ethnic backgrounds and socio-economic levels. part iv. conclusion due to the pervasive presence of societal injustices and the threat to human and civil rights, the time has come for the legal clinical model to do more than just teach students to become lawyers, and begin training them to become agents of social change. this requires innovative teaching strategies that focus specifically on the furtherance of social justice initiatives. a curriculum that focuses on principles of ubuntu should be used as the foundation for developing each student’s leadership capabilities and reinforcing a more meaningful commitment to service. ubuntu “affirms a higher notion of what it means to be human. it suggests that all people, and communities of people, are a source of power and creativity. it is an affirmation of the possibilities of the human spirit, and the power of authentic human-to-human engagement.”64 this higher notion is the ideal commitment of the legal profession to create access to justice, promote fairness, and ensure equity for the poorest members of our society. clinical professors play an indispensable role in training the next generation of agents of social change and thus should be willing to place a much-needed emphasis on social justice issues in the clinical curriculum. 20 journal of clinical legal education december 2008 62 cap utilizes a leadership model to train students. the student participants are encouraged to be leaders in the community by becoming informed citizens and advocating for justice. 63 presently, there is a need to increase access to justice. “[…] our justice system is predicated on the assumption that when there is a dispute, all parties will be represented by lawyers who will protect their clients’ interests and help their clients navigate the complex legal system. in this sense, lawyers are the gatekeepers to justice. unfortunately, the most vulnerable members of our society are the least able to afford legal services and are unable to access justice. law schools have an important role to play in solving the access to justice problem.” how to identify the professors and administrators who will support and inspire, newsweek, http://ejwguide.newsweek.com/chapters/faculty.htm (last visited may 30, 2008). 64 nelson mandela institute, available at http://www.mandelainstitute.org.za/ubuntu.aspx (last visited july 1, 2008). fostering a better interaction between academics and practitioners to promote quality clinical legal education with high ethical values fostering a better interaction between academics and practitioners to promote quality clinical legal education with high ethical values prof. philip f iya* introduction “when academics meet their practitioner friends, they invariably face criticism about their work and in particular about the education enterprise of which they are part. in their turn, practitioners are variously criticised by academics for their antiintellectualism, pragmatism and economic orientation. debates between academics and practitioners resemble a kind of ‘turf warfare’: each side stubbornly protects a position”1 the above statement is not only inspiring but, indeed, provocative for those interested in pursuing the debate on the status, role and interaction between academics and practitioners as professionals aspiring to maintain and promote legal education generally and more specially quality clinical legal education with high ethical values. it raises a host of questions the first and quite important of which is whether 41 * professor of law and executive dean of research and development (university of fort hare) 1 gold, n: “the role of university law school in professional formation in law: 1986 journal of professional legal education vol. 4 no. 2 (december) p. 15. professor n gold’s statement, made over a decade ago, has relevance and application to the legal profession today. this calls for a fresh hard look at the profession: is it true to say that there is in fact today a “turf warfare” between academics and practitioners? if the answer is in the positive, what then is the nature and magnitude of the rift in the relationship causing the negative criticisms of one another and the stubborn protection of positions? does such a rift in relationship have any impact on quality clinical education and related acquisition of high professional values? and if so, to what extent? what lessons can one draw from professor gold’s analysis of similar issues and what issues, conclusions and recommendations can one put on the agenda to further the debate in the context of one’s own experiences in one’s own particular jurisdiction? the present paper is a response to the call to address the above questions, and it focuses on the above and other related issues emerging so pertinently from professor neil gold’s provocative statement. the strong motivation for such reflection is not only the inspiration of the professor’s significant pronouncement but the writer’s current experiences and personal participation in a few of the debates between academics and practitioners which focus on the very same issues of concern, some of which are listed above and discussed herein below. a quick review of the profession from which the writer hails, reveals that all does not appear smooth between academics and legal practitioners. during regular joint meetings of academics (mostly deans of law) and practitioners (mostly attorneys and advocates serving on the executive committees/ councils of respective professions) in south africa, the practitioners are often critical of “the standard of academic education by universities”, citing the problems graduates encounter with regard to numeracy and literacy skills; problems of lack of emphasis by universities on the importance of teaching accountancy as a subject for all law students; and problems encountered with teaching of a host of practical courses, to mention but a few2. the generality of these concerns extend far beyond the borders of south africa. in the united states, for example, one academician recently remarked that “responding to the criticisms of prominent members of the bench and bar about the failure of law schools to prepare law students for the practice of law, american bar association accreditation standards now require law schools to offer a course providing ‘live client’ or ‘real life’ experiences and every accredited law school now offers such a course”3. other jurisdictions have their own share of experience of similar concerns. in the case of south africa, the response of some academics was that it was the task of universities to provide general education to all graduates and that vocational training had to follow, calling for the active involvement of the profession i.e. the practitioners only at the vocational training stage. implicit in such argument was the suggestion that the practitioners have no business telling the universities (academics “providing general education”) which courses to teach that are relevant to legal practice; practitioners should only actively involve themselves with professional education after graduation at the university. rightly or wrongly, this lack of trust between academics and practitioners does exist and its impact on cooperation and close interaction between the two sectors of the profession needs to be addressed. 42 journal of clinical legal education june 2003 2 for details of these criticisms refer to the minutes of the regional liaison committee meetings (held on 5and 17 march and 20 april 1999) and those of the national liaison committee meeting held on 4 june 1999 respectively and subsequently. for other aspects of criticisms against academics (“intellectuals” as they are often called) read: t w setlhwane, “are black intellectuals as mediocre as mbeki says?” the sowetan of 31 august 2000 p. 18. read also an article entitled “silent black intellectuals” by prof. jonathan d jansen in the city press of 8 december 2002 p.25. 3 jc dubin: “faculty diversity as a culture legal education imperative” (2000) 51 hastings law journal 445–446. the present discussion, therefore, will attempt to highlight the most critical issues and to advance arguments aimed at stimulating and contributing to the debate on the need by all sectors of the legal profession to strive to maintain and promote quality legal education, and instill the highest standards of ethical values as part of their professional responsibility. where problems are established that hinder attainment of those objectives, the same must be identified and eradicated in the overall interest of the stated values. it is in this context that the issue of fostering better interaction between academics and practitioners (our main theme) is discussed focusing mainly on: 1. setting the context for maintaining and promoting quality clinical legal education with high ethical values by the profession; 2. why fostering closer interaction between sectors of the profession is a critical factor 3. the failure to interact/cooperate: its nature, cause and impact. 4. working towards fostering closer interaction: a south african perspective of the legal profession 5. emerging lessons with new agenda for further debate it is hoped that by sharing views on the above issues, the legal profession generally, and legal clinicians in particular, will be provoked to review their current programmes of linkages and build the necessary capacity for closer cooperation and interaction to promote legal education with higher ethical values as expected of the profession. 1. setting the context the context of the present debate necessitates an evaluation of the professional responsibility which requires a need to maintain and promote quality clinical legal education which also instills high ethical values to its recipients. on issues of maintaining quality in legal education, whether generally or with particular reference to clinical legal education, we have argued elsewhere that the pursuit of quality is a motherhood quest to which everybody subscribes, and went further to suggest strategies for better quality legal education in south africa4. in a more recent debate on the importance of quality clinical education, a young researcher has emphasized that lawyers must possess the full range of fundamental lawyering skills for them to be able to develop, analyse, collate, synthesise, identify and evaluate strategies for solving legal problems5. he has further argued that for students to acquire and master those skills, it is essential for them to have: a basic knowledge of the legal rules and their various authoritative sources; an understanding and appreciation of the relationship between law and the socio-economic environment in which it operates; and abilities to handle facts and apply the laws to them6. members of the legal profession have not only to ensure that these important elements of clinical legal education are maintained and promoted but also that proper mechanisms are kept in place or even developed further to achieve the fundamental objectives of clinical education. fostering a better interaction between academics and practitioners to promote quality clinical legal education with high ethical values 43 4 iya, pf: “maintaining quality in legal education with diminishing resources..” (11) stellenbosch law review 2000 no.2 pp. 244–255. 5 qa letsika: the future of clinical legal education in lesotho. a dissertation submitted in partial fulfilment of the requirements for the ll.m degree of the university of natal (durban) p. (iii) 6 ibid. with reference to ethical values, every profession and business has its own standards and values or ideals/principles (also often referred to as “ethos”). these values, by whatever name we call them, constitute the professional/ business ethics of the particular calling. in the case of the legal profession, such ethics are variably referred to as “professional ethics”, “legal ethics”, “judicial ethics”, etc, depending on the focus. they are concerned with the rules of conduct and precepts which lawyers are required to adhere to in the course of practicing their profession as well as extraprofessionally whilst they remain in the profession7; but also they provide the norms, principles and values in terms of which lawyer’s ethical conduct is judged in order to protect the public against professional misconduct8. by ethics of the legal profession, therefore, is meant the body of rules and practices, which determine the professional conduct of the members of the legal profession. they form its ideals and its character, and they represent the behavioural practices of lawyers from time immemorial. although some of the old ideals have changed with the innovations taking place in the various socio-economic and political conditions and requirements of each respective jurisdiction, a great deal of the values have survived the passage of time because they have been considered fundamental and inherent in the very conception of the profession9. they are, nevertheless, not necessarily universal since not many of them are of universal acceptance, nor can they determine the professional duty in all the varying circumstances of every case. however, certain of the values and principles have yet remained and can, in many countries, be found in the following sources: • legislation10 • judicial decisions • rules of law societies11 and canons of bar associations • international conventions and codes12 • common law • traditions and practices with reference to the rationale for the regulation of the conduct of lawyers, there does not seem to be a very coherent statement of what the objectives of such regulations are, or should be. the views expressed on the same issue are many and varied. however, the following are regarded as the core values for professional ethics namely13 • to protect the public against professional misconduct • to maintain the honour and dignity of the profession 44 journal of clinical legal education june 2003 7 lewis, eal: legal ethics: a guide to professional conduct for south african attorneys 1982 juta & co. ltd p.1 8 the law society of south africa: legal ethics 1999 plt practice manuals p.9. 9 for further details read iya, pf “ethics of the legal profession: problems and possible reforms in uganda’: 1974 unpublished dissertation submitted in partial fulfillment of the ll.m degree, at yale university law school pp. 2–5. read also randel and bax; the south african attorneys handbook (3rd ed) pp. 1–29 and lewis, op. cit pp. 1–6. 10 e.g. the attorneys act no. 53 of 1979 as amended. 11 e.g. the rules of the various law societies (in the cape, natal, ofs and transvaal – (in so far as south africa is concerned) 12 the international code of professional ethics promulgated at oslo on the 25th day of july 1956 and subsequently amended by such international bodies like the international bar association etc. 13 see especially paragraphs 2,3,4,6,9 and 10 of the international code of professional ethics. ibid. • to promote the highest standard of justice • to secure a spirit of friendly cooperation by treating professional colleagues with utmost courtesy and fairness; • to establish honourable and fair dealings with clients irrespective of the nature and calibre of those clients; • to ensure that members of the profession discharge their responsibilities to the community in general. in addition, it has also been argued that members of the profession must not only be ethical but should be believed to be so by all who come into contact with them, whether in their professional or private life. the interest in public service and the status as an officer of the court requires that the lawyer not only avoids evil but also the appearance of evil14. the importance of and need for commitment to ethical values of any profession or business is expressed by providing for sanctions against those members who do not behave according to the expected standards. in that regard, one writer has suggested a golden rule in respect of those who fail to commit themselves. it states that a practitioner must avoid all conduct which, if known, could damage his/her reputation as an honourable member of the profession and as a citizen15. he has also argued that this rule is not a counsel of perfection, for reputations are not damaged by those trivial lapses to which even the best are subjected. “the point is that absolute obedience to the rule in all instances stands as an ideal to which each practitioner (of the profession) should consciously strive. where a practitioner’s conduct falls short of the rule, the extent to which it will be reprehended and dealt with as misconduct will depend upon its gravity or the frequency of its commission by that practitioner and it may well be that a number of trivial lapses revealing a pattern of indifference to the rule will promote disciplinary action, though each, in itself, was neither serious nor frequent”16 in the case of the legal profession, a set of duties have, over the years, been established against which to measure a member’s commitment to the values of the profession. these include the duty to the state, to the court, to the client, to colleagues and to the public at large. the acknowledgment and compliance with the professional values and efficient and effective performance of the professional duties are critical in ensuring maintenance and promotion ethical values. this should explain why absolute obedience to the rules of the profession remains the ideal for pursuance of the performance of professional duties and maintenance and promotion of ethical values. any contrary behaviour showing a lack of commitment to those values must face disciplinary action for professional misconduct or unprofessional conduct17. from the above discussion, it is clear that understanding the conceptual imperatives of quality clinical education with high ethical values is essential to the debate on cooperation in the legal profession. fostering a better interaction between academics and practitioners to promote quality clinical legal education with high ethical values 45 14 iya pf: “ethics of the legal profession: problem: problems and possible reforms in uganda” op cit. p.3. 15 lewis, eal; legal ethics op. cit p.8. 16 ibid 17 the discussion between the two types of misconduct is itself contentious. the simplistic way of understanding it is to note the difference between ethics and etiquette. 2. why fostering closer cooperation and interaction is crucial our view of cooperation encompasses a broader perspective of working together for a shared purpose and it is characterised by managing relationships between organisations and individuals inter se severally or between them collectively. unlike cooperation, interaction is proactive and involves the active management of the interaction within the relationship. cooperation as a relationship may establish a link but interaction ensures active participation within the link. for that reason, while the need for cooperation in terms of coordination, management of diverse perspectives and general conflict resolution must be given prominence in maintaining and promoting legal education , programmes for the active interaction between and amongst members of profession (in our case the academics and practitioners) must become a priority. doing so will increase the efficiency of individual professionals having an effect on each other by working closely together to solve problems. in the case of the legal profession, for example, the ethos of the profession provides for friendly cooperation by treating professional colleagues with utmost courtesy and fairness and ensures that members of the profession discharge their duties to the state, courts, clients, colleagues and the general public. one very significant attribute of the duties is the well-established responsibility (also referred to as “an ancient aspect of professional calling”): namely the responsibility of seniors to educate, train and initiate newcomers into the profession. government, acting in the name of the people and through the public service of its legal staff, has also the responsibility to ensure through legislation and regulatory authority that the legal profession is staffed by persons of sufficient competence so as to protect their clients’ and society’s interests. besides the government therefore, lawyers in private practice (the “practitioners”), in the universities (the “academics”) and in the judiciary (the judges and magistrates) are all duty bound by professional ethics to ensure that members of the profession are equipped with sufficient competence for their role in society. what this requires is that members of the profession should be informed and knowledgeable about a wide range of matters, for law deals with all facts of life and law trained persons should have the appropriate skills to the perform their demanding jobs with ability. the development of legal education for competent practice for all lawyers, therefore, depends upon the goodwill, cooperation and better interaction of all segments of the profession and government18. by achieving that objective, both the profession and government will ensure the protection of society from incompetent lawyers and by so doing will also ensure the maintenance and promotion of the professional values outlined above. the question emerging from the above discussion is: why then limit the attainment of those ethical values? what challenges prevent the maintenance and promotion of those ethical values? can we agree with professor gold that the mistrust, earlier alluded to amongst practitioners and academics, has created serious problems which not only challenge the professional responsibility of cooperation and closer interaction in the education enterprise but also challenge the wider values and ethos of collegiality in the profession? the subsequent paragraphs will address some of the above issues by first establishing the nature and causes of the problems, if any, between academics and practitioners after which the impact of the problems on ethical values will also be assessed. 46 journal of clinical legal education june 2003 18 cold, n: “pursuing excellence in law: comments on professional legal education in zimbabwe” unpublished paper submitted to the government of zimbabwe on 11 december 1986. 3. problems between academics and practitioners: nature, causes and impact it has already been noted that where conduct falls short of the established standards, the extent to which it will be reprehended and dealt with as misconduct will depend upon its gravity or the frequency of its commission19. what this signifies is that before acknowledging whether the problems between academics and practitioners reflected in their criticism of one another provide such serious challenges to ethical values to merit reprehension, one needs to first establish not only the nature but the peculiar characteristics of the problems. time and space can permit the discussion of a few of them. 3.1 nature and characteristics of failure to interact 3.1.1 conceptual problems with the terms “academics” and “practitioners” a simplistic approach to the term “academic” reveals that this is a college or university teacher/lecturer or a person who is a member of an academy i.e. a society of people interested in the advancement of arts, sciences or literature for the sake of knowledge. with the increase in the numbers and size of colleges and universities, there has developed a self contained professional community called “academics” or “academicians” who are separate and distinct from the practicing profession20. the roles of such “a profession” is characterized and described as theoretical, conceptual, political and abstract in their orientation as opposed to practitioners and the general profession who are said to be practical, functional, apolitical and concrete21. what is often not considered is that even within the general concept of “academics” there are all sorts of sectoral problems of polarisations. clinicians i.e. those academics who teach practical training are at “war” with traditional law teachers, the latter considering the education provided by the former as “second-rate22.” proceduralists are often at odds with their substantive law colleagues and there are those who divide over skills on the one hand and knowledge on the other. the concept of “academic” is, therefore, blurred by a blanket of internal polarisation and mistrust. many pieces of legislation refer to “legal practitioners” as persons duly admitted to practice as advocates/barristers or attorneys/solicitors23. this certainly is a very narrow view of “practitioner” in the legal profession. a preferred view encompassing a broad perspective of the term ascribes to it a concept involving all legally trained persons involved in the occupation of the practice of law24. they consist of judges and magistrates, traditionally referred to as “the bench”; lawyers in private practice, namely; the “bar” made up of barristers/advocates and the “side-bar” consisting of solicitors/attorneys; law teachers in universities and other institutions; legal officers in companies fostering a better interaction between academics and practitioners to promote quality clinical legal education with high ethical values 47 19 see footnote 16 above. 20 the concise oxford dictionary: the new edition for the 1990s. 21 gold, n: “role of university law schools in professional formation in law” op. cit. p.15. 22 for details read iya, pf: “addressing the challenges of research into clinical legal education within the context of the new south africa” 1995 south african law journal vol. 112 part ii especially the topic involving academics in clinical legal education pp. 272–274. 23 see, for example, section 1 of the legal practitioners act no. 15 of 1964 as amended by act no. 13 of 1988 of swaziland. 24 iya, pf: skills development for competent practice of law 1996 phd thesis p.15 and corporations; and legal officers employed by governments in their various ministries and related organisations. in this respect all law trained persons are “practitioners” as broadly conceived although they may be involved in different occupations at a particular point in time25. however, for purposes of this discussion we use the terms “academic” and “practitioner” in their simplistic concept of university law teachers/lecturers for the former and attorneys/solicitors and advocates/barristers for the latter, i.e. according to their common usage in south africa and elsewhere within the british tradition. the emerging problem is as much a problem of misconception of terms as is the polarisation resulting from those misconceived terms and roles in the different occupations of the profession. the divisive dichotomies cause the profession a great deal of harm and create a sort of schizophrenia or even multiphrenia about the profession and law study being split into uncoordinated compartments instead of the profession being considered as a whole and legal education a continuum. what is worse is the resulting negative attitude of superiority and inferiority that have developed and have gone to undermine the profession and its education of lawyers. 3.1.2 problems over the control of legal education the legal profession is rampant with tension formalised by the struggle for responsibility and control over legal education influenced by the notion of the dichotomy of “academic” and “practical” study and application of the law. much as the division may have existed for centuries, it has caused a serious problem by influencing the general direction of legal education along those two demarcations, thus swaying the essential objectives of legal education between those two poles. the recent reforms in the field of legal education in south africa appear to worsen the problems. one landmark reform, for example, recommended that the basic qualification for practice should be a degree in law followed by a year’s vocational training in skills26. the result of the recommendation revolutionalised legal education by introducing what is today referred to as “the three stages of legal education” which in substance established the following: the first stage of legal education i.e. the academic study which emphasizes theory and develops in the student the academic and intellectual knowledge required in the practice of law (practice being given a broad perspective); the second stage i.e. the vocational study of law after the law degree and consisting of practical training focusing on acquisition of skills and values for the practice of law; and the third stage i.e. continuing legal education whose aim is not only to ensure the growth of the young practitioner into a fully mature lawyer, but also to assist all practitioners to keep abreast with the current theoretical knowledge and practical skills to meet the new demands of the practice. the above division is significant as a problem in not only entrenching further the dichotomy of “academic” and “practical”, but also in introducing problems of allocation of responsibilities and control over legal education. for all intents and purposes, universities insist, and their law schools zealously protect, their “academic” role in stage one and the “practitioners” would not let go (to 48 journal of clinical legal education june 2003 25 ibid. it is interesting to note that the new legal practice bill, 2000 of sa does not give any definition of a “legal practitioner” although it defines rather obscurely “a legal practice” to mean a structure or arrangement in terms of which two or more legal practitioners practice in partnership with one another or practice as a corporation of the nature described in section 23(1)(a) of this act. 26 the 1971 ormrod report on legal education in england. universities) their responsibility and control of stages two and three. this tension which, as a matter of fact, is currently being experienced in south africa, is also in existence in many jurisdictions struggling to reform their systems of legal education27. 3.1.3 problem with content and delivery of legal education associated with the problem of separating the elements of legal education into self contained blocks, usually insulated from one another, very little effort is made by law schools to bring in the rich learning from other disciplines. rather, because it is “the academic stage”, substantive law learning of scholarly content must be crammed into a short time. the appreciated caliber of lecturers are those with postgraduate qualifications from overseas universities, preferably oxford, cambridge, harvard, yale, stanford etc, most of whom have little or no experience of private practice. the result is the problem with such academics underestimating the importance of the knowledge of what happens in practice. more importantly, the resulting attitudes are held responsible for the absence, or lack of emphasis on skills development and multi-disciplinarity in law schools. when suggestions of practical training are put forward to such academics, they quickly react by asserting that such a programme of training is not for universities as they are “necessarily illiberal, amoral, narrow, reactionary, anti-intellectual, impractical or unnecessary”28 the attitudes of these kinds of academics spill over towards resisting the implementation of legal skills development programmes (practical training courses) in their law schools; they dislike the idea of allocating additional time for such programmes when forcefully introduced; and they even resist employment of full-time clinicians for practical training29; and when such lecturers are hired, they keep them away from the tenure track, or block their promotions by applying traditional classroom and scholarship criteria30. 3.1.4 problems with research it is not the intention here to question the enthusiasm of academics to participate fully in research pursuits, especially those directed towards improvement of legal education. the particular research problem that has, however, been identified relates to research on clinical issues. what has transpired in this regard is that academics, with their enthusiasm for research, avoid educational issues of clinical or practical nature for the obvious reason of their being ill-equipped. in fact they push it aside as merely the concern, if at all, of practitioners. ironically, the clinicians with their largely practitioner background, totally discard research of any scholarly nature, arguing vehemently that that is the concern of academics. fostering a better interaction between academics and practitioners to promote quality clinical legal education with high ethical values 49 27 the writer was a party to meetings of law deans and sectors of the profession held on 9th and 10th october 2000 organised by the association of law teachers of southern africa and law society of south africa respectively to discuss the new legal practice bill which is attempting to resolve the contentious issues on the nature and control of vocational training. 28 twining, wl: “legal skills and legal education” in: the law teacher: a journal of the association of law teachers (1988) vol 22 no. 1 pp.9–10 29 clinicians in law schools are lecturers hired to impart practical skills/training to students of law. 30 for additional arguments of the negative nature read iya, pf skills development for competent practice of law op. cit pp. 243–245. the problem, therefore, is that most law teachers, including clinicians, forget that clinical education has considerable potential for contributing to legal scholarship and in its own right can be a component of that process. indeed, the presence of clinical education in the law school does enhance the quality and diversity of teaching and research in the orthodox faculty31. 3.2 causes of the problems the above are but a few of the easily identifiable problems that characterise the relationship between academics and practitioners. a significant thread of concern that runs through all these problems is the resulting lack or diminishing cooperation, making close interaction between academics and practitioners even more difficult. the deeper the division, the further away are the poles. any attempt, therefore, to bring closer the polarised divisions in the interest of better interaction requires a fresh look not only of the identifiable problems but their causes as well. below are a few real or perceived causes: 3.2.1 historical legacies as a consequence of colonisation of africa especially by the british, there followed an importation of british laws and legal systems on the social norms and cultures already existing among the indigenous african societies. traditional methods of dispute settlement were gradually disregarded in favour of western models of administration of justice. the procedures of courts and of the many tribunals established by the british (in direct conflict with indigenous ones) came to be based upon the western adversary system in which the parties have, or are believed to have, the opportunity and responsibility for developing or presenting the relevant facts and legal contentions. the ensuing adversary system, which was inherited with the rest of the british legal system, imported the notion that the legal profession is essential if justice is to be properly administered. equally essential to the adversary system was the division in the profession, characterised by the division in occupation of lawyers shared largely between the two poles of barristers/advocates and solicitors/attorneys – hence the development of the notion of a “divided” as opposed to “fused” profession, each with its peculiar ethical values and professional duties. the establishment of universities and assigning to them (especially as from mid-19th century) the responsibilities of legal education worsened the division in the profession by introducing a new class of professionals – the academics. colonialism, therefore, ensured that not only were the “divided” professionals imported and imposed, but even the academics in the few ivory towers were recognised and promoted to suit the colonial masters. the inevitable consequence has been that even after independence the policies, expectations and traditions regarding lawyers have continued to be based on the british models. in fact, it is submitted here that due to the historical factors outlined above, lawyers in those african countries colonised by the british are, even today, required by law, international conventions and tradition to adhere to the professional objectives and other related characteristics derived from the british trained lawyers during the colonial era32. 50 journal of clinical legal education june 2003 31 dutile, fn: “the problem of teaching lawyer competency” in dutile fn (ed): legal education and lawyer competency – curriculum for change (1981) west publications p.4. 32 we have given detailed arguments on the issues of historical perspectives in our paper “ethics of the legal profession: problems and possible reforms in uganda” op. cit. pp. 3–4. 3.2.2 attitude of commercialism a controversial cause, responsible largely for polarisation in the profession, is the attitude of commercialism in the practice of law. to many lawyers the profession is just like any other business where the primary motive is the accumulation of wealth, as opposed to the primary objective of rendering services. to such lawyers the general standard of professional success and the daily measure of service rendered are all gauged in terms of money. this type of attitude can be a serious source of concern as it contributes to the polarisation between public interest lawyers (among which fall academics) and private interest lawyers. a feature of the division is the rejection of public jobs in favour of private practice resulting in shortage of academics and other public interest lawyers and the perception that public lawyers are “second rate” when it comes to protecting and promoting the interest of clients by private practitioners. in this regard the danger of deviating from the ethos of the profession in favour of commercialism can not be ruled out. 3.2.3 insufficient knowledge of ethics of the profession most lawyers, especially those recently trained, know quite little, if anything, about ethics because most law schools do not consider it their responsibility to teach such a course. even where it may be taught, the course is treated as an “elective” course and at best allocated very limited hours. even the attendance of schools of legal practice, where the course is compulsory, is limited to just a few new graduates. this lack of or insufficient knowledge can be the cause of a real problem because in the absence of any proper guidance, the solution of ethical issues is left to the sense of fairness of each individual lawyer (academic or practitioner) and the inevitable result is that selfinterest based on economic gains often becomes the chief determining factor. it is conceded that people are not necessarily made moral by lectures on ethics. however, it should be noted that lapses from expected standards are often due to ignorance and that a diffusion of knowledge of ethical rules applicable to a particular profession will certainly contribute negatively to the maintenance and promotion of high standards of efficiency and integrity33. 3.2.4 failure to discipline for misconduct it is common for the general public to complain about the conduct of lawyers but in most cases such complaints remain unprosecuted34. the damage thereby caused to the image of the profession needs no over-emphasis. 3.3 analysis of the impact we would like to contend here that for efficient and competent performance of professional duties, a major goal must encompass a moral sense of responsibility and integrity based on strong ethical values. in the case of the legal profession, the essential quality of any person who seeks to practice as a member of the profession is integrity which requires every lawyer to discharge his/her duties to the state, client, the court, the colleagues and members of the public with honesty, fostering a better interaction between academics and practitioners to promote quality clinical legal education with high ethical values 51 33 ibid. pp. 5 –6. 34 for additional information read: benson, r: “catching crooked lawyers” in the mail and guardian of january 5 to 11, 2001 p. 17. candour, honour and dignity. while acknowledging these qualities as essential objectives in guiding the conduct of lawyers (or any profession for that matter), one cannot lose sight of the many unfortunate factors that combine and have currently accumulated to reduce, and in some cases completely eradicate, the attainment of such noble objectives. we have discussed a few of those factors and have come to conclude that lack of general cooperation and specific instances of poor interaction among professionals, (and for purposes of this paper, between academics and practitioners), impact negatively on the attainment of those noble objectives. proper maintenance and promotion of ethical values can not take place under those conditions. what is left, therefore, is to establish the nature and magnitude of such adverse effects. to the extent that most of the problems herein identified centre around the problem of cooperation and poor interaction among sectors of the same profession, they exemplify typical situations of unethical conduct by members of the same profession. they illustrate evidence of malpractice to the extent that such conduct could have adverse effects on academic/practitioner relationships. for sure they damage the image and function of the profession in society and with that follows the adverse effect on the general administration of justice. the damage is even greater in the area of legal education. instead of focusing on providing the best form of education in preparation for competent practice, one finds academics and practitioners focussing narrowly on their occupational self interests which “each side stubbornly protects” with neither side appearing to want to attend to the real concern of the other. this in turn impacts negatively on an effective educational programme which, in its fullest sense, will prepare future graduates for a large number of professional roles, each of which will demand a core of knowledge, skills and values for basic proficiency and general competence.35 4. towards fostering closer interaction in the legal profession 4.1 acknowledgment of existing programmes of cooperation it would be unfair to assume or state that there is total lack of cooperation between academics and practitioners on grounds of their existing polarisation. in the case of lawyers in south africa, for instance, evidence of such cooperation is abundant as confirmed by the national director of practical legal training in the ten schools of legal practice in the country. he has acknowledged that:36 (i) there is some constructive co-operation between the university sector and private practitioners and the profession in general appreciates the work that is done by the universities in preparing law students for the profession, although more emphasis could be placed on the development of the relevant skills; (ii) structured liaison systems exist in terms of which three regional meetings and one national meeting are held annually between the branches of the profession and tertiary legal education institutions; 52 journal of clinical legal education june 2003 35 gold, n: “the role of the university law schools in professional formation in law” op. cit p. 15. 36 these are arguments extracted from a letter written by the national director of schools in legal practice to the author of this paper. (iii) the profession, through the attorney’s fidelity fund is, to quite a large extent, involved in the funding of law faculties. grants are made with regard to expenditure generally to assist universities with capacity building. bursaries are made available to law students and special grants are made with regard to affirmative action programmes. the fund further gives a substantial subvention to legal aid clinics to pay salaries of directors; (iv) various universities have offered premises to vocational training and some universities are making available venues for short courses for private practitioners while others have made available venue for full-time training schools of six months. in these cases, universities further provide administrative staff and other support; (v) several members of the attorney’s profession are serving on faculty boards. the law society of south africa (lssa) directors of the schools for legal practice are all serving on one or more faculty boards in the country; (vi) the full-time school for legal practice is governed locally by a board of control and universities in the region and the attorneys' profession have equal representation on the board. both sectors therefore contribute to the development of the programme, selection and awarding of certificates; (vii) in two cases where the school is not situated on a university campus, the programme is accredited by law faculties. for example, the east london school is accredited by the fort hare university; (viii) individual members of faculties are often appointed as instructors at the schools for legal practice, practical legal training courses or continuing legal education (cle) seminars; (ix) the cle division of the law society of south africa has established post-graduate diplomas in conjunction with certain universities; and (x) the attorneys profession acknowledges the expertise that is available at universities. committees of the profession from time to time approach members of university staff to advise on specific aspects. despite the above efforts, we have already stated a detected absence of smooth interaction among south africa’s academics and practitioners. the relationship has not been all that blossoming. 4.2 towards fostering closer interaction: a systematic and holistic approach in our view, the route for a closer interaction between academics and practitioners is by formation of partnerships whether at university, faculty, student or individual levels. we are strengthened in this regard by many writers with whom we agree that:37 (i) the main mechanism for closer interaction in terms of networking, sharing of resources and dialogue is the establishment of partnerships. partnerships create the necessary space for the actors in different institutions to come together and get things done and develop skills in collaborative ways for the common good. partners are given the opportunity to engage in collective inquiry, not simply as a technique of using existing skills to solve fostering a better interaction between academics and practitioners to promote quality clinical legal education with high ethical values 53 37 mneney, e: “mechanism for implementation of networking sharing resources and dialogue” in: transforming south african universities (iya, pf ed) 2000 africa institute of south africa pp. 122–129. see also morgan, p: capacity development and public and private partnership (1998) undp publication. existing problems; the goal or ultimate outcome of such inquiry should be systematic impact. by focusing on a series of actions directed at the development of skills and knowledge, participants will also be able to develop the attitude and mindset needed to bring about the desired result. (ii) the main objectives of such partnerships should be to develop and nurture an informed and active group of institutions and individuals severally or singly that can provide mutual support and information to enable them to promote ethical values. they should create the appropriate fora where different perspectives can be presented, debated and synthesized. such partnerships should also make it possible to optimize the use of scarce resources and talents resulting in a level and quality of service which neither group or individual could achieve alone; 4.2.1 since partnerships are complex in their own way, the following steps need to be followed before a partnership is established:– a) institutional analysis; the objective of an analysis is to assess the specific capacities which exist; their strengths and weaknesses; and how institutional capacity requirements can be met. this could then be followed by an analysis of how the knowledge and skills of the staff in different institutions can be used collectively; b) formulation of a clear collective vision and target. the end vision should be kept in mind all the time; c) formulation of principles to guide the partners in achievement of targets; d) formulation of key processes and systems: such systems should be flexible enough to allow variations where necessary without the need to comply with complex procedures; e) selection of areas for initial collaboration: it may not be practical to start a partnership with too many issues to be addressed. it is important for partners to select priority areas on the basis of explicit agreed criteria; f) creation of incentives: since the objective of a partnership is not only to develop but also to nurture sustainably an active group of people, incentives may be used to acquire the services of committed coordinators, facilitators and administrators necessary for the survival of the partnership; g) formal legal instruments: the above variables under 4.2.1 should be formalised legal instruments such as cooperation agreements or at least memoranda of understanding. 4.2.2 while partnerships provide the space for collaboration, specific mechanisms for networking, sharing of resources and dialogue have to be agreed upon by the partners. the mechanisms include: a) organizations of periodic conferences, seminars and workshops. these provide ideal opportunities for advocacy and dialogue. depending on the 54 journal of clinical legal education june 2003 expected output, the number of participants and other specific details may vary. however, in all cases the presentations made, the involvement of participants and the outcome of such activities should focus on the collective vision; b) information dissemination through newsletters and websites. websites can be used as teaching aides. students and staff from partner institutions can access lecture notes and other information through websites. the possibility of downloading texts and graphics from computers in partner institutions make this a useful mechanism for sharing resources; c) publication of joint educational journals: a journal is an ideal avenue for reflective and critical analysis of issues. it is also an important source of knowledge and information; d) management of an information exchange system: it should be a system for continual accrual of up to date information. the information base should be designed in a way which allows the accumulation of detailed information. such a base should require a continuous effort keep it current, relevant, appropriately structured and accessible to all partners. the latest developments in information technologies can be used to create such a base. networks which allow users to access files and other applications on other computers are possible; e) collaborative research projects and outreach programs involving the pooling of skills and resources; f) developing teaching materials; g) joint short courses and postgraduate programs; h) collaboration with institutions outside the partnerships 5. emerging lessons with new agenda for further debate 5.1 emerging lessons in discussing the need to promote quality clinical legal education with higher ethical values in the legal profession, apart from establishing the existence of problems of interaction between academics and practitioners, this paper has focused more particularly on the need for closer interaction between the two sectors of the profession. the strategy of engaging a systematic and holistic approach and mechanisms of achieving them through specific processes has been identified as the core of all suggestions submitted for the profession. this is where the lesson for the various sectors of the legal profession begins. according to a recent survey, there is, the world over (whether in the americas, europe, or asia), a network of clinicians which fulfil a vital role in stimulating the development of quality legal education both in the academic and practical sectors38. in this regard we can learn from other disciplines which have argued that fostering a better interaction between academics and practitioners to promote quality clinical legal education with high ethical values 55 38 rossouw, d. “ben-africa joins networks across the globe” “ben-africa’s newsletter vol. 2 issue no. 2 of june 2000 p.1. “by bringing persons who work in this field in regular contact with one another they are able to learn from and stimulate one another. interaction like this facilitates the process of each region of the globe finding its own unique voice. each new voice that emerges in this global conversation represents not only a source of creativity, but it also challenges the rest of the globe to rethink the way in which they have conceptualised (business) ethics till now39.” in our view, as legal educators rise to the challenge of rethinking the way in which they have to position themselves in the global arena of legal education network and analyse issues of fostering closer interaction amongst the role players, (especially the academics and practitioners), they should not lose sight of the experiences of other professions. our suggestion of a systematic and holistic approach in fostering closer interaction for the sectors of the legal profession could therefore, be the strategy to follow. the rest of the mechanisms discussed as additional techniques could also be considered as part of the emerging lessons to be learnt, provided that at the end of it all the voice of legal clinicians can ‘become articulate and audible within this global community of persons devoted to the quest for meaningful clinical legal education’40 – a remark with which we could not agree more. another important lesson relates to the degree of commitment required in the pursuit of the systematic and holistic approaches suggested above. it is one thing to acknowledge the need to foster closer interaction but it yet another to commit oneself to ensuring effective implementation of the strategies set to attain that mission. new initiatives have to be constantly designed and reviewed to drive members to identify themselves fully with the values and challenges presented by the new demands of social transformation. 5.2 the new agenda for further debate at this stage of our discussion, it has become clear that professor gold’s remarks, referred to in the introduction to this paper, have indeed proved provocative, considering the trends of arguments so far advanced. critical to these arguments are issues of conceptualizing the points raised by professor gold and establishing the nature, causes, scope, impact and solutions to problems of lack of cooperation between different sectors of the legal profession – the academics and practitioners in the present discussion. while acknowledging some common lessons emerging from these general discussions, the direction for future debate should be identified so as to systematize and facilitate the process of the emerging debate. for that reason the following items are being suggested to constitute a working agenda for further debate on maintaining and promoting quality clinical legal education with high ethical values in the context of whatever jurisdiction the debator may find him/herself. 5.3 quality assurance in clinical legal education if every sector of the legal profession collectively accepts responsibility for ensuring continuous improvement of the quality of legal education generally, and clinical legal education in particular, then the vision and mission of providing that quality should be given the priority it deserves. the new agenda being proposed here is, therefore, one which brings to the fore a more focused debate 56 journal of clinical legal education june 2003 39 ibid. 40 ibid. on the development of a quality management and assurance framework which guides the planning as well as the processes of implementing, evaluating, reviewing and improving clinical legal education. the issue at stake in this kind of debate is that the task of ensuring quality legal education is a shared responsibility. neither should it be left to the state nor to educational institutions (for academics), but rather, its success ultimately depends on the commitment of every sector of the legal profession working together with all role-players of legal education. the strategy of achieving this vision needs further debate in the context of the problems of cooperation/interaction, the concern of the present discussion. 5.3.1 team building to achieve shared vision given the assumption that quality management and assurance in clinical legal education is a shared vision and responsibility, the emerging issues is one of team building to achieve that vision. the critical issue here for further debate should, therefore, centre on team building in the context of new demands at times of great change. the opportunities facing us today also demand new ways of interacting with others. we need to learn and unlearn more things more quickly than we have. we need to build new bridges and learn to succeed through the joint efforts. therefore, the strategy for team building to achieved share vision is being put forward as a critical item on an agenda to debate issues of fostering closer interaction among the various sectors of the legal profession. 5.3.2 professing professionalism commitment to ethical values and principles will always be at the core of every profession. as already observed in our earlier discussion, criticism about the conduct of the members of the legal profession continues to influence their approach towards cooperation in promoting quality clinical legal education. any future debates on the concerns for this kind of cooperation and closer interaction should add to the agenda items issues of professional responsibility in the context of the new educational and changing socio-economic landscape influencing the promotion of quality clinical legal education with high ethical values. 6. conclusion it has not been the purpose of this paper to exhaust the subject of rampant criticism influencing the maintenance and promotion of quality clinical legal education with high ethical values. rather, it has been its purpose to establish, examine and raise pertinent questions and issues about the relationship between academics and practitioners especially in the legal profession. efforts have been made in the present debate to address and answer some of the questions, as much as offer tentative solutions to others. the paper has equally attempted to stimulate further inquiry by suggesting a few unexplored fields, like creation of viable, sustainable and development-oriented partnerships, and linkages through team building and professing professionalism. the issues raised may not be agreed upon in all the points by many. however, they serve as a framework in which to investigate further the challenges facing the maintenance and promotion of quality clinical legal education with high ethical values in general and more particularly those facing the better interaction between academics and practitioners; critical sectors in the legal profession. fostering a better interaction between academics and practitioners to promote quality clinical legal education with high ethical values 57 practice report 149 cyberspace back to the classroom: taking lessons learned from teaching street law during the pandemic back to inperson instruction* amy l. wallace, new york law school, us1 i. introduction in early spring 2020, when schools around the world were compelled to close their physical doors, educators, administrators and students were forced to re-invent what it meant to teach and to learn. for fifty years, street law programs have been dedicated to hands-on, student centered, interactive teaching strategies. law students, lawyers and teachers have devoted countless hours to creating fun, practical lessons designed to teach young people about practical law that affects their daily lives and also develop the skills they need to use their newly found legal knowledge to improve their lives and their communities. remote learning upended all the best practices * with contributions from şehriban i̇pek aşıkoğlu, samantha doiron, rachel pollak, betzy portillo, eren sözüer, tülay aydın ünver, jasmine ward, laura wesley, and ansley whiten. 1 amy l. wallace is an adjunct professor of law at new york law school. wallace founded and teaches the street law experiential course at nyls. she is a graduate of the university of toronto (b.a. in political science), georgetown university law center (j.d.), and lehman college (m. ed. – new york city teaching fellows program). she consults for street law, inc., a non-profit focused on law-related education based outside of washington, d.c. at street law, inc. she helped design the chslsj summer law program and continues to serve as the legal director of that program. she also supports all new law-school-based street law programs in the united states. practice report 150 street law practitioners had spent half a century building. we had no choice but to adapt and so we did. law students and street law professors re-imagined their programs. some practitioners immediately converted their programs to distance learning. in fall 2020, street law, inc. hosted a workshop outlining early best practices for teaching a virtual street law program.2 that fall, i wrote a practice report detailing the experiences of my law students teaching high school asynchronously in spring 2020 and synchronously during that summer and fall and asking whether it was possible to teach interactive street law lessons remotely.3 in that article, i included the best practices that we had developed for our programs in new york city. i wanted to know if practitioners in other parts of the united states and abroad were having similar experiences and results. this paper examines comprehensive reflections from eight law school-based street law programs teaching remotely during the pandemic. the reflections include which suggestions worked for them in practice and which ones did not. in addition, as we look to a return to in-person instruction in the fall of 2021, this paper will examine whether there is anything we have learned from emergency remote instruction that we may want to keep. is it possible that some of our virtual teaching experiences will strengthen our return to the classroom? 2 amy wallace, “tips and best practices for conducting a street law program online” at street law, inc. (august 28, 2020). 3 amy wallace, classroom to cyberspace: preserving street law’s interactive and student-centered focus during distance learning, 27(4) int’l j. of clinical legal educ. 83 (2020). practice report 151 this paper includes: a summary of the best practices outlined in classroom to cyberspace; background on the reflections of other law school-based street law programs; reflections from other street law programs; an examination of most and least successful applied best practices as identified in the reflections; and a discussion of lessons learned from remote teaching that can be incorporated back into in-person instruction4. for clarity and consistency, the terms “instructors” and “facilitators” will refer to law students teaching street law; the term “students” will refer to high school or secondary school students participating in street law classes; and the term “contributors” will refer to law professors and law students who submitted reflections to be included in this paper. ii. summary of best practices outlined in classroom to cyberspace the best practices outlined in classroom to cyberspace and the fall 2020 street law, inc. workshop were divided into two broad categories: class structure, and class content. they are briefly summarized here. class structure almost all virtual programs in the united states were being taught synchronously via zoom, microsoft teams or a similar platform by the end of remote instruction. however, most schools were understandably unprepared for the complete physical 4 the author would like to thank lee arbetman for his comments on this report. practice report 152 shut down at the start of the pandemic. for some street law programs, like the one at new york law school (“nyls”) and the charter high school for law and social justice (“chslsj”), asynchronous instruction was the only option in spring 2020. synchronous instruction provided greater opportunities for interactivity and assessment of student comprehension. this method was also usually more engaging and fun for students. however, asynchronous elements were helpful if community members struggled with reliable internet or other distractions at home that made live classes challenging. class length and “zoom fatigue” have been frequently debated topics across all fields during the last eighteen months. i recommended that students be on screen for less than an hour – ideally around forty-five minutes. in addition, classes where students are actively engaged with the material rather than passive listeners are preferred. for the 2020 summer law program at chslsj, i implemented a 30/30/30 classroom framework. this schedule was thirty minutes on zoom, thirty minutes for an independent assignment, and then thirty minutes of zoom. when we first switched from asynchronous to synchronous we discovered that all the procedural elements of teaching virtually (breakout rooms, polls, screen sharing) were incredibly time consuming. the law student instructors frequently ran out of time. as a result, the schedule was modified for the regular fall semester at the high school to 40/30/40. that breakdown has continued for all classes at chslsj and will be used for the summer law program this year (2021). practice report 153 i recommended smaller class sizes for virtual instruction if possible. the paper also recommended increasing the number of instructors. as the duration of remote instruction increased, our student engagement levels decreased dramatically. teachers around the country faced similar struggles with student engagement as the pandemic extended through another academic year.5 having instructors in each breakout room to encourage and support students was extremely beneficial. finally, i recommended that instructors choose technology that was very easy to use or familiar to the students already. remote learning was overwhelming for many students so requiring them to learn new programs and applications could have been burdensome. many of our students struggled when required to run multiple programs simultaneously. like most programs, we were required to use the platforms chosen by the school. this provided consistency for the high school students. class content designing lessons that intentionally incorporated measureable means to check for understanding was listed as a critical best practice. students were often reluctant to voluntarily participate in response to a direct question or activity. some students were self-conscious asking for clarification in an online format. in addition, the 5 susan dominus, ‘i feel like i’m just drowning’: sophomore year in a pandemic, new york times (may 13, 2021), https://www.nytimes.com/2021/05/13/magazine/high-school-students-coronaviruspandemic.html. https://www.nytimes.com/2021/05/13/magazine/high-school-students-coronavirus-pandemic.html https://www.nytimes.com/2021/05/13/magazine/high-school-students-coronavirus-pandemic.html practice report 154 overwhelming temptation to focus on off-task activities in a virtual environment existed for both adults and students. this divided focus often led to a lack of comprehension in the virtual space. the nyls instructors asked the chslsj students to explain instructions in their own words each time an independent or group activity was assigned. although repetitive, the regular inability of students to explain the task demonstrated the importance of regularly checking for understanding before proceeding with the lesson. in classroom to cyberspace, i also identified the best practice of planning to cover and accomplish less during a virtual session. setting reasonable expectations for what students can process during a virtual class eliminated a great deal of stress for both the instructors and the students. instructors did not feel that they needed to rush and students had sufficient time to engage with each topic. i recommended that lessons continue to be interactive in a virtual space. engaging lessons are a core component of street law. this trademark teaching strategy assumed even greater importance throughout the pandemic. during remote teaching, students were disconnected physically from their teachers and their peers. students often disengaged from class entirely. it was crucial to involve them actively in each component of the class. breakout rooms were the essential tools for most interactive lessons. instructors used those rooms together with polls, and voting with reaction emojis to include students at each stage of a lesson. practice report 155 street law lessons frequently incorporate current events. this was also very important during remote learning. in addition to the pandemic, the last eighteen months have seen dramatic social justice movements and fiery political conflict. not being in a physical school deprived students of a chance to talk through these issues with their classmates. we prioritized including current events in our lessons and we saw the most passionate engagement from the students during those lessons.6 our students discussed the freedom of speech and protesting, covid restrictions, voter identification requirements, schools banning lgbtq books from the library, and state bans on the sale of violent video games. finally, i recommended using visual materials to thoughtfully engage students. during the 2020-2021 school year, nyls instructors started each class with an image and a writing prompt. the students posted responses on screen using an interactive program. beginning each class with a visual, pulled reluctant students into the topic of the day. the visuals were simple and the instructors did not speak while the students reflected on the image, which allowed students to process what they were seeing. many of the best practices outlined in classroom to cyberspace were adjusted as we continued to teach. each class had students with their own personalities and 6 amy wallace, counterbalancing teen reliance on social media news: the importance of using street law methodology to teach about current events, pravova pozytsiia (legal position), association of legal clinics of ukraine (forthcoming fall 2021). practice report 156 motivations. class dynamics also changed the longer students remained in lockdown so we continued to adjust our strategies in response. iii. reflection questions in january 2021, i contacted all attendees of the street law, inc. fall 2020 virtual teaching workshop and asked those who were teaching street law virtually if they would be interested in reflecting on their remote teaching experience. i sent classroom to cyberspace to each respondent. the contributors are either law professors who lead credit-bearing law school-based street law programs or law student leaders of volunteer programs. participants were asked to reflect on their experiences teaching street law and to highlight the successes and struggles conducting their program remotely. contributors were asked to use the following writing prompts to guide their reflection: (a) basics of your program (where your law students/community members teach, what they teach, are any of those things different now that they are teaching remotely); (b) generally, how was the experience teaching remotely? (c) what tips, if any, were helpful? how did they help? and (d) what best practices, if any, did not work for your program in practice? why do you think they didn’t work for your program? practice report 157 participants were told to write as little or as much as they wanted but were told their reflections would be edited for length if they exceeded the word limit. iv. reflections included below are reflections (or excepts) from professors eren sözüer, şehriban i̇pek aşıkoğlu, and tülay aydın ünver from istanbul university, professor laura wesley and law student instructor betzy portillo from southwestern law school, law student instructor rachel pollak from the university of illinois college of law, law student instructor ansley whiten from the university of georgia school of law, law student instructor jasmine ward from the university of missouri kansas city school of law, and law student instructor samantha doiron from st. mary’s university school of law. professors eren sözüer, şehriban i̇pek aşıkoğlu, and tülay aydın ünver istanbul university – istanbul, turkey the istanbul university street law (sl) program is a year-long, for-credit course in which teams of law student instructors teach either consumer law or cyberlaw (mainly digital rights) at high-schools. the first part of the sl course consists of theoretical classes on these two areas of law, as well as classes on basics and objectives of sl, (interactive) teaching methods, and lesson planning. toward the end of these classes, practice report 158 instructors form teams (of four or two, depending on the number of instructors) and prepare lessons plans in accordance with their chosen topic. law student instructors are given the opportunity to teach mock lessons in which the class and instructors act as high-school students and in the end, provide feedback to the law students. a range of fourteen to twenty-three instructors take the course, but only six instructors were enrolled this year due to reservations about teaching sl remotely. this enabled us to spend more time with the instructors, particularly to work on their lesson plans, and each team was able to teach two mock lessons. spring 2021 was our first experience remote-teaching sl synchronously. when schools shifted to remote teaching in spring 2020, instructors recorded videos of their classes, which were sent to high-schools. however, we were unable to receive feedback from schools as to whether students watched these videos at all, let alone assess their effectiveness. accordingly, we decided that synchronous remote teaching would be a better method. this year, over a course of three weeks, pairs of instructors taught three classes to 10th graders. each class, broken into two forty-five-minute lessons and a 15-minute break, was crafted to cover the same amount of material that would normally be taught in a ninety-minute in-person class. per the agreement with the school administration, each team was supposed to teach a group of ten students. however, actual attendance was much lower, ranging from two to six students. although students were generally participatory, the low attendance rate made it difficult to carry out many activities and significantly demoralized the instructors. practice report 159 our main concern has been ensuring the effectiveness of the classes, which depends both on the lessons and the participation of students. various tips from the article and sl workshop have been helpful. this year, we coupled written feedback on lesson plans with zoom meetings to address instructor concerns and issues with lesson plans. as emphasized in the article and the workshop, we insisted on instructors to be “intentional and thoughtful” about lesson objectives and to prepare thorough lesson plans. in this process, the tip regarding online activities taking more time than inperson ones was particularly helpful. it is a difficulty we, as professors, experienced when teaching preparatory classes to law students. we had to go over lesson plans with instructors several times, sometimes up until the last minute. however, this rigorous process enabled instructors to broaden their understanding of and manage expectations for lesson outcomes remote teaching. they were able to tailor lesson plans accordingly and stick to plans in terms of content and timing. explaining to our instructors that certain suggestions were supported by the experience of remote sl teaching was also helpful to partially dispel their worries regarding online classes. a major concern was maintaining the attention and participation of high-school students. we took the tip to have a maximum of fifteen students on zoom a step further and requested from the school administration to designate groups of ten. we also guided instructors in preparing participatory lessons suitable for remote teaching. instructors used various interactive tools such as media, polls, games, emojis, and virtual backgrounds. we encouraged law student instructors to practice report 160 incorporate content that would relate to high-school students, like contemporary issues such as pandemic measures affecting the youth. students were indeed much more responsive to the combination of such methods and content. furthermore, methods such as hypotheticals enabled students to discover legal concepts without the instructors having to explain beforehand. as we experienced in our own teaching, using breakout rooms was particularly beneficial. since high-school students did not have much contact with each other due to remote teaching, they first socialized in the breakout rooms and then proceeded to the assignment. as the high-school students already knew each other and were familiar with zoom, our students had no problems using breakout rooms. clear instructions and short tasks kept students from sitting in silence. using breakout rooms for small groups (each room had 2 participants) allowed each student to participate. also, we had reminded law student instructors to pay attention to the closing time of breakout rooms, which saved them time. a particularly helpful tip was the idea that silence on zoom is acceptable. our instructors were inclined to move on from discussions if they did not receive a response right away. referring to our class discussions, we reminded them that a moment of silence is not something to be avoided and that they should give students time to think after posing a question. finally, for instructors, we prepared a checklist consisting of tips from the workshop regarding class preparation (e.g. charging laptops, closing unnecessary applications) practice report 161 and our own tips (e.g. announcements, enabling “gallery view” on zoom). this checklist was a handy tool and helped instructors avoid unexpected technical issues during class. we do not think there were any best practices that particularly did not work for our program. we believe that we were unable to implement some best practices due to low attendance. for instance, although there was a school teacher present in most classes, this made no difference as to the students’ attendance. furthermore, law student instructors implemented the practice of reminding the class to turn on cameras, but this did not have an effect on students that had not turned on their cameras in the first place. instructors also implemented the tip regarding signing on early or logging off late. however, this did not work in our case as students logged in at class time and immediately logged off as the class ended. nevertheless, instructors spared a few minutes at the beginning of class to chat, in which they incorporated facts from students’ lives to bond with them. this practice was indeed helpful to connect with the students. finally, disabling the chat function would not have worked in our case as for some students, it was their only way of participation. practice report 162 professor laura wesley southwestern law school, los angeles, california the street law clinic at southwestern serves high school students ranging in age from 16 to 18 years old, and many of our students are in the foster care system or on probation. we teach at schools throughout los angeles county, including schools onsite at residential facilities, charter schools, and continuation schools. our law student instructors work in pairs and are assigned to a high school to teach 10, 60-90 minute law-related classes over a semester. the purpose of the course is to help high students transition into adulthood successfully by knowing their rights. some of the topics covered are: why we have laws, the court process and people, criminal and constitutional law, education law and careers, employment rights, housing rights, healthy relationships, and consumer rights. at the end of the semester, the high school students take a field trip to the law school and participate in a moot court activity. each high school student leaves the program with a resource binder of local resources and legal information. last spring, our instructors were halfway through their teaching assignments when covid-19 forced schools to shut down. we quickly pivoted to recorded asynchronous lessons and virtual legal binders. in the fall, five of our schools were excited to welcome our street law teams back into the classroom virtually, this time teaching to students live. the law student instructors used the school’s platform to teach their classes, which in all cases was zoom. this was fortunate because the practice report 163 instructors and high school students were already familiar with the platform, which helped transition to virtual learning. i would note that the law student instructors spent more time on icebreakers than usual in order to build trust with the students and create a safe environment to ask questions and share opinions. they also paid special attention to validating their students’ responses, which helped build students’ confidence and made them feel comfortable sharing in a virtual environment. virtual learning also required class time to be adjusted. although time varied, no classes exceed 60 minutes. zoom fatigue is real, and we wanted to respect the time limits provided by the school. video cameras were another issue we experienced while teaching virtually. the majority of students did not turn on their cameras. we learned many schools had a policy that allowed for cameras to be disabled. this was to protect students who might have crowded living conditions or be embarrassed about their surroundings. despite the challenges of the cameras, many of the students actively participated by unmuting themselves or participating in the chat. this allowed students to participate in a way they felt most comfortable. for engagement, we used breakout rooms, polls, chats, google slide decks, kahoot and jamboards. we quickly learned the key to breakout rooms was to have a facilitator in each room to start the conversation or provide slide deck prompts for each room to use. the slide deck allowed the street law facilitators to see the responses in real-time. the chat feature was also helpful to check for student understanding. the law practice report 164 students also often used kahoot to debrief a topic. the high school students enjoyed the competition aspect of kahoot. we also found google jamboards to be especially helpful in getting students to respond to true/false questions, or hypotheticals involving a thumbs up/ down, fair/unfair, agree/disagree activities. the jamboards provided a way to further probe as to why students felt one way or another. polling was useful but required questions to be sent ahead of time to the classroom teacher, which wasn’t always practical. another best practice our law student instructors followed was to have simple, measurable objectives and build in time to transition from one activity to another. other helpful tips were the use of images, colorful slide decks, and short videos. overall the transition to virtual learning was challenging but doable! any challenges were outweighed by the active learning taking place by the students. betzy portillo southwestern law school, los angeles, california as a law school student who strongly believes that students living in low-income communities lack educational resources and support, i had a strong desire to participate in the street law clinic at southwestern law school. i remember attending a legal clinic informational session in april 2020 and asking “will the street law practice report 165 clinic be feasible virtually if students are not able to return to the classroom?” a few months have passed since i had the opportunity to virtually teach students at los angeles promise high school in los angeles, california and i am glad i did. my partner and i taught a virtual classroom of students at la promise high school from september 2020 to december 2020. the ten weeks consisted of weekly lesson plans including what is the law, the legal system, criminal law, constitutional law, education, employment, housing, consumer law, health/healthy relationships, and the last class celebration. our virtual teaching was done using the zoom platform and our virtual classroom consisted of twenty-two students. covid-19 forced students to learn from their homes, so it was no surprise to us that most students did not attend class with their video camera turned on. therefore, we met students where they are and embraced the idea of teaching to a classroom of black squares. virtual teaching is more difficult than teaching inside a physical classroom because instructors are unable to grasp from students’ faces whether they are understanding the material or not. additionally, students who do not comprehend the information or simply have a lot going on at home can hide behind a black screen. therefore, virtual teaching demands a heightened level of engaging students so that students can remain focused and feel encouraged to participate. to best engage students, we used platforms that the students’ teacher was already using with them like google jamboard and kahoot. using the same platforms ensured that students would already be familiar with how to use them and helped avoid any technical difficulties that could practice report 166 cause delays in the lessons. we also encouraged students to participate in any method that they could, whether that was virtually raising their hands and unmuting themselves or writing it in the chat box in the case that they could not unmute themself or felt uncomfortable doing so. as an incentive and to bring students some joy during these hard times, we rewarded a few students in every class for their participation with an electronic gift card. because virtual teaching makes it hard to assess what lessons students enjoyed the most or what facts resonated with them, we asked the students to jot down their thoughts using google jamboard. as street law clinic instructors, our goal was to make a positive impact during these unprecedented times and based on the google jamboard responses and their high level of participation throughout the ten weeks, i am happy to say that we did. jasmine ward university of missouri – kansas city school of law, kansas city, missouri in november 2020, the black law students’ association (“blsa”) of the university of missouri – kansas city (“umkc law”) hosted a virtual street law session with schlage high school (kansas city, kansas). this was the second time blsa hosted street law and the first time we hosted the event virtually. practice report 167 our first session was hosted in november 2019. blsa law student instructors, local black attorneys, and black umkc law professors taught street law courses over the span of a few hours. we hosted the sessions in our law school and were able to welcome over 70 high school students. the instructors and high school students enjoyed the sessions so much that blsa immediately started thinking about hosting a second session – we had no idea that a global pandemic would make in-person sessions impossible. during the summer months of 2020, blsa reached out to a few schools and organizations who had expressed interest in the in-person street law sessions. schlagle high school was sure they would still be able to find students interested in participating virtually. this was exciting – but blsa didn’t yet know what a virtual street law session would look like. even in november 2019, blsa offered street law a bit differently than other schools. instead of offering a full summer session, we offered about three hours of programming. we split students into different groups and taught each group four different lessons; to achieve this, we rotated each group to different classrooms where specific instructors and lessons awaited them. eventually, the working idea for november 2020 was to imitate the november 2019 structure with zoom breakout rooms. . . . practice report 168 we feared the students would not be engaged or enjoy the sessions. those fears were for naught – the students were so excited to begin, were eager to get back into sessions zoom had kicked them out of, and profusely expressed their love of the sessions when all was said and done. they seemed to enjoy connecting to people closer to their age, who looked like them, and who were telling them information that could immediately help them if needed. the school itself asked if we could host them again during the spring semester. again, our instructors enjoyed the sessions – there’s something special about remembering that legal concepts which seem so obvious are not obvious to our communities, however practical and important they prove to be. further, our instructors see street law sessions as opportunities to do for others what was done for them – model happy, helpful people of color in fields we aren’t typically portrayed as occupying. personally, it was refreshing and exciting to be with students who were so eager to learn and so excited about who they could become. knowing they enjoyed the sessions and connected to our instructors helps me remember that these sessions aren’t theoretical to them – teenagers don’t act excited or say they enjoy something unless they mean it. it makes us all so happy to know they enjoy these sessions and really learn from them. blsa is excited to host another session soon. while our virtual session was successful, we hope to be in person next year! practice report 169 ansley whiten university of georgia school of law, athens, georgia this year is the first year that the street law program has been in place at the university of georgia school of law. with that being said, we don’t have an in-person experience to compare the remote fall semester to, but we were still able to see where differences would be between the two. our law student instructors remotely taught middle and high school students that were either volunteers for the juvenile offender diversionary program peer court, or first-time offenders who chose or received attending a street law session in their disposition. they taught various lessons from the street law curriculum, but the students’ favorites were the first amendment rights and introduction to the juvenile justice system. in general, teaching remotely was a positive experience for both the law student instructors and the students, with a few challenges, as expected. we found that it was easier for some of the students to attend because it was virtual because they did not have to find a ride to an in-person location. because of this, even when everything returns to normal, we will probably also offer virtual sessions. one helpful tip from the “best practices” session was to give breaks during the sessions. it is much more difficult to keep people attentive via zoom, especially after being on zoom all day with school, so we found it helpful to give a 10 minute break for every 30 minutes of instruction. we also found it necessary, if possible, to have the students keep their cameras on. if they were allowed to turn them off, participation dropped drastically. practice report 170 we also found it helpful to offer sessions during the week and on the weekends, to offer the students more flexibility if they were feeling fatigued after school. we have to offer our sessions outside of school hours since it is associated with an extracurricular activity. we also found that it was useful to substitute google docs for paper handouts so that the students could still write their ideas out when we were doing handouts or discussions. one of the tips in the video was to turn off the chat function, but we found that chat was helpful for the more shy participants or ones having connectivity issues so that they could still participate without having to speak in front of everyone. when we had a big enough group of students, breakout rooms were very useful and allowed the instructors to interact more directly with the students and increased big group participation because the students had a chance to brainstorm and organize their ideas with their peers before presenting them to the big group. rachel pollak university of illinois college of law, champaign, illinois at the university of illinois college of law, the education law and policy society started street law programming in the fall of 2020. though members of the law practice report 171 student organization had been planning to begin work with street law for some time, this was the semester we got the initiative up and running. to kick off our program, we partnered with a small, relatively new high school in urbana, illinois. we spent three class periods over three days teaching a lesson about the first amendment and the freedom of speech. these classes were taught remotely over zoom, by three of our law student instructors. we worked closely with the social studies teacher to determine the appropriate level of content and edited the lesson (provided by street law, inc.), to fit the curriculum and match the students’ needs and interests. as an organization running a brand-new street law program, this has been our only experience teaching street law so far. part of what made our first time teaching so successful was the workshop held for street law, inc., in august of 2020. at that workshop, we were able to get a really cohesive idea of what a lesson should look like, how lessons should be facilitated, and how students might participate (through polls, the raise hand function, chat box) on zoom and generally in a remote setting. we were even able to adapt part of the example lesson from the workshop for our own first street law lesson. one best practice that did not work in our experience was utilizing both synchronous and asynchronous teaching methods for our lessons. however, our inability to make this practice a reality was due only to the structure and format of the social studies class in which we taught. their schedule was tight and class blocks were short, so practice report 172 breaks and times to provide asynchronous material were hard to come by. however, we will certainly be using this technique in the future when we can. another difficulty we encountered was presented by the pandemic – while some of the students participating in our classes were online at home on zoom, about half the class was learning at school in person, but participating in our lesson on zoom as a group. while in fact every student was participating online, it was challenging to ensure that the students participating alone at home were as engaged and involved as the students participating in a group with their teacher at school. our street law team looks forward to navigating those challenges—and to learning more tips and best practices from workshops like the one held on august 28, 2020—as we move forward in our street law programming. samantha doiron st. mary’s university school of law, san antonio, texas the juvenile jurisprudence association at st. mary’s school of law in san antonio, texas is not traditionally a street law program. jja is a teen peer court program, which works closely with underserved high schools within the san antonio community to encourage reformative justice, provide mentorship, and adjudicate cases with the goal of closing the inequity gap for teenaged defendants. when the campus and local public schools closed because of the pandemic, jja temporarily lost the ability to run the peer court model, but wanted to continue working with students practice report 173 from local schools. street law came to the board’s attention as an alternative that could work well in a remote setting. jja implemented street law and taught lessons about reformative justice, the inner workings of the court process, constitutional rights, and voting rights. the semester culminated in a mock trial where students put their knowledge to work in adjudicating a case. teaching street law remotely worked well for our new remote model. the one difficulty we faced was attendance, though this hurdle seemed more a reflection of the pandemic than the program itself. with students doing all of their schoolwork remotely, additional screen time each week was understandably daunting for a lot of our usual participants. further, while schools did provide some access to technology for their students, the district jja works most closely with is severely underfunded and the board is unsure how many jja students had consistent access to the internet. however, we did have enough interest that the program continued; the board agreed that as long as even one student showed up, we would not discontinue their access to street law. the model jja used for street law consisted of a lecture on the topic for the week, followed by street law activities and discussion about the students’ position on issues before and after the lecture. during these activities, we found that the students seemed more intimidated or less willing to open up about their opinions on zoom, but if a board member or law student instructor offered an opinion first, the conversation would start flowing with student participation. we also took time each session to practice report 174 check in on mock trial preparation. where we lacked high school students, first year law students stepped in to fill out groups and to help facilitate discussion. street law suggested using asynchronous classes in conjunction with synchronous, but our board did not implement this during our street law year. because last year was the first year jja used street law, it was difficult to put together asynchronous sessions where we were a bit unsure of how the program as a whole would work with our traditional model. implementing street law remotely was successful for our school. we were able to use materials on the street law website to plan and execute an entire semester’s-worth of lessons and activities for our students. in our traditional model, we touch on some of the subjects we were able to cover with street law, but not in such an in-depth way. although the primary purpose of jja is to facilitate the local teen peer court, the street law model highlighted the importance of legal education for the students we work with. as a new board takes over for the next school year, the current jja president stresses the importance of street law and hopes that jja will continue using street law lessons and methodology with our students. v. how did it work in practice? the feedback from other street law programs was helpful to identify what strategies were effective globally compared with tactics that worked for our specific program. best practices are always evolving and that was especially true here. we continued to practice report 175 refine our techniques for engaging our students as they grew less and less participatory during online instruction. most of the reflections identified similar experiences to ours as outlined in classroom to cyberspace. many programs started asynchronously in spring 2020 and were able to move to synchronous instruction when schools were able to make technology more available to their students. one of my suggestions was to include asynchronous elements such as posting short videos or articles since remote schedules often meant instructors saw their students less frequently. contributors noted that they were not able to include this complement to synchronous teaching. once nyls instructors began teaching synchronously, they were not able to include these either. as identified in some of the reflections, producing and preparing to teach synchronous lessons was time consuming and law student instructors, who were also managing their own virtual learning, did not have time or energy for additional projects. either intentionally or due to low attendance, programs proceeded with smaller classes during remote instruction. smaller classes worked well for the nyls instructors and it enabled other programs to provide students with more individualized attention which is generally lacking in remote teaching. unfortunately one program reported that despite thoughtful advance planning and fun interactive lessons focusing on current events (very similar to the ones identified as successful by other programs), student attendance was so low that the program could not proceed. we are about to start our second summer teaching a remote summer law program at practice report 176 chslsj and although i want classes small enough that the students feel comfortable participating, i am worried about online burnout keeping many students from attending. most programs incorporated the idea of including more instructors in their virtual teaching. this was without question the most important element of a successful nyls program. the students were far more participatory in small breakout rooms guided by a law student than they were in the main zoom. in addition, synchronous instruction requires so many tasks to happen simultaneously while attending to the needs of the students that i am in awe of teachers who have been handling class on their own during this crisis. initially nyls instructors only used applications and programs that were absolutely necessary to teach the lesson. as student and instructor comfort levels increased, the instructors introduced new programs but only after vetting them for accessibility by the students. contributors identified a number of different programs that aided them in delivering fun interactive lessons, including jamboard7 and kahoot8. by spring 2021, nyls instructors started each class with a question on padlet9. the students responded well to posting their responses to the prompt each week. intentionally checking for student understanding was identified by most of the contributors as an essential component of lesson preparation and execution. the 7 https://workspace.google.com/products/jamboard/. 8 https://kahoot.com/. 9 https://padlet.com/. practice report 177 reflections echoed the experiences of the nyls law student instructors. students were often distracted or unwilling to contribute so planning multiple varied strategies for measuring student comprehension was key to a successful lesson. most contributors noted that they were able to cover less material during a virtual session and many were happy to have received that tip prior to starting their program. last summer nyls instructors were very discouraged because they failed to complete their lessons. having that information heading into the fall alleviated stress for the street law instructors and the students. some programs continued to teach the same topics as before the pandemic and that continuity worked for both the instructors and their partner secondary or high schools. some programs chose to modify their curriculum to address current events of interest to their students. programs on both paths found success with their lessons. all programs worked hard to incorporate street law’s hallmark interactive activities into their virtual programs. breakout rooms were key to everyone’s success this past year. some programs chose to incorporate polls and in-program interactive elements while others relied on traditional group work and hypotheticals. in classroom to cyberspace, i suggested disabling the chat function because we noticed when chat was available, students would rely on it exclusively instead of participating verbally. some programs identified the chat function as essential as the only means available for some students to communicate. nyls instructors also noticed that students regularly had microphone issues or simply could not motivate themselves to unmute and practice report 178 contribute. by the end of the spring 2021 semester, we regularly allowed students to respond in the chat though we did notice that once we allowed the chat function, more and more students only responded that way. vi. lessons to take back into the classroom for many law school-based live-client clinical programs, the move online enabled them to broaden their reach and assist more clients. most professors i have spoken with plan to continue to offer services remotely, some online only and some in conjunction with in-person clinical work.10 in contrast, all the street law contributors plan to return to in-person instruction as soon as possible. one program that operates as an after-school opportunity, reported that remote classes helped accommodate busy high school student schedules and eliminated the need for transportation. they plan to continue to offer some classes remotely. the nyls program will return to inperson classes in fall 2021 and both the instructors and the students are thrilled. as difficult as remote teaching was for both students and instructors, it gave us a new lens to examine our street law work. some elements incorporated to address the challenges of virtual instruction may strengthen in-person teaching as well. 10 “clinical and public legal education: responses to coronavirus,” at turning challenges in opportunities: justice education in times of crises, hosted by the global alliance for justice education, international journal of clinical legal education, and association for canadian clinical legal education, virtually at northumbia university, newcastle, u.k. (june 16-18, 2021). practice report 179 restricted remote schedules forced us to choose the most important lessons to teach our students. the chslsj summer law program curriculum has been cut in half to accommodate remote instruction. this is an opportunity to evaluate what is most important to and relevant for our students. we should take this thoughtfulness into the fall semester and be just as selective even though we will return to our regular class schedule. active learning is always preferred over passive. however, students responded well to short videos (under five minutes) explaining complicated topics. use of media as a complement to an engaging street law lesson could fortify student learning in the fall. some in-person classes may have access to technology in their classrooms. for those programs, continuing to incorporate fun interactive technology (kahoot, jamboard) may be an effective strategy to review other components of a street law lesson. virtual platforms enabled more guests to visit classes and contribute to lessons. increased student engagement demonstrated the benefit of including community members in class. even if they can only join classes virtually, we should encourage greater involvement of community members going forward. community members can be especially impactful when addressing current events and political movements. there is always a tension between reaching more students versus giving a smaller number of students more personalized attention. class sizes were often smaller for remote street law programs. a return to in-person instruction will likely mean a return to pre-covid class sizes. classes should incorporate opportunities for practice report 180 individualized one-on-one student/law student interaction in order to foster community and mentoring. as nyls returns to in-person instruction in fall 2021, we are fortunate to have two former street law instructors as teaching assistants for our street law program. we are hoping the teaching assistants will enable the instructors to spend more time with each student. it was critical to regularly check for student understanding over the past year. although that technique has always been a fundamental component of a street law lesson, it has been more intentional during remote learning. hopefully the high school students will not be as distracted or disengaged when we return to in-person classes, but ensuring that each student understands each part of the lesson will be equally important. at nyls, before going into the classroom the law students spend weeks in seminar focusing on teaching methodology, classroom management strategies, and learning about the students and community where we teach. we discuss the importance of respect, compassion, and empathy for our students as teenagers learning in underserved communities. most programs include similar discussions in their street law programs. during the pandemic, the law student instructors witnessed the severe economic and technological disparities present in our city. this enabled them to instantly understand the inequities faced by their students. these challenges were always there, but were not always apparent to law student instructors teaching inperson. the high school students routinely had internet issues which prevented the practice report 181 camera or microphone from working properly. some students lost their connection to the zoom multiple times each class, only to return and ask what they missed. students unmuted and the background noise made it impossible to hear them because they share space with a large number of family members. despite the difficulties of teaching remotely, the law student instructors remained outwardly enthusiastic, patient, and encouraging because they understood their students were struggling.11 as we return to in-person teaching, the challenges may be less obvious but will not be less real and it is critical that the law students develop the same compassion and understanding as they did this year. 11 thank you to my spring 2021 nyls street law instructors: kristen bulka; saher chaudhary; emily devlin; cheyenne matus; filomena stabile; tabetha tufariello; alan vaitzman; kassy vazquez; and serena zachariah. thank you also to my summer 2021 nyls street law summer law program instructors: caitriona carey; olivia faljean; daniel glicker; catherine gumarin; julia ismail; and rishai mcdermott. special issue: european network for clinical legal education 6th conference ten years of prague street law: lessons to learn from our first decade michal urban and tomáš friedel[footnoteref:1], charles university, czech republic [1: we are truly thankful for all street law inspiration, cooperation of all sorts as well as concrete comments to this paper by our lovely colleagues – rick roe, richard grimes, sean arthurs and hana draslarová. michal urban (urban@prf.cuni.cz) is a senior lecturer at charles university in prague, faculty of law, czech republic.. in 2009, he founded prague street law programme and has lead it since then. he briefly met street law while being a law school student at charles university, when a czech ngo partners czech was searching for volunteers to teach at schools with the help of adapted materials from street law inc. he did not go through a training, though. several years later, he found more information about georgetown street law programme in washington, d.c. when establishing prague street law programme, he made an extensive use of his teaching experience from his master studies at faculty of education at charles university. soon after founding the programme, he joined the international clinical community with the help of ijcle and gaje conferences. tomáš friedel (friedel@prf.cuni.cz) is a junior lecturer at charles university in prague, faculty of law. he went through prague street law in 2010 and has stayed with the programme ever since.] being a 10 year old prague street law programme has been, at least to our knowledge, the longest, still running, street law programme in the post-soviet area.[footnoteref:2] in comparison with street law programmes in other parts of the world, passing a ten-year post may not appear that impressive.[footnoteref:3] for an eastern and continental european legal literacy clinic it, however, represents an important landmark and an opportunity to stop, reflect and reconsider – and celebrate, too. even though we have not yet perhaps come of age, there might be a younger programme interested in an older sibling’s experience, or indeed an older sibling interested in how their younger mate is doing. our paper offers a brief description of the current programme, followed by a discussion of what we believe are ‘good’ practices that helped us to build up and sustain the programme. we also identify aspects that are better avoided. briefly, we also share our current concerns and struggles. we hope that the paper will serve as an inspiration for those who are considering starting or expanding their own street law programme.[footnoteref:4] it is no doubt a tribute to all those who helped us along our path. [2: we encourage any reader who knows about a longer still running street law programme in this part of the world, to let us know. ] [3: especially if we compare with our street law friends from georgetown in washington, d.c. see kamila a. pinder, streer law: twenty-five years and counting. journal of law & education, vol 27, no 2, 1998. in three years georgetown will be in his 50s! ] [4: in the last couple of years, we started receiving questions from our czech as well as foreign colleagues on our street law know-how, especially concerning sustainability and ever-expanding nature of our programme. this paper is an attempt to sincerely and at length answer their inquiries.] brief description of the prague street law programme we founded our street law programme in order to provide legal education to laypersons while also stimulating professional development in our law students.[footnoteref:5] these two main aims have always been interconnected, representing an important characteristic and strength of legal literacy clinics in general. these related goals might be prioritized differently; we as faculty of law teachers consider the professional development of law students as our principal aim, although both we and many of our law students are attracted to street law primarily because it helps non-lawyers to understand basic legal rights and responsibilities. [5: for further information on content and development of the term street law see seán g. arthurs, street law: creating tomorrow´s citizens today. lewis & clark law review. vol 19, no 4, 2015, pp 943-947. however, the main value of the paper lies in the fact that through quantitative analysis of the effects of participation in a georgetown street law clinic on high-school students proves actual impact of street law. for similar reasons se seán arthurs, melinda cooperman, jessica gallagher, freda grealy, john lunney, rob marrs, richard roe, from zero to 60: building belief, capacity and community in street law instructors in one weekend. international journal of clinical legal education. vol 24, no 2, 2017, pp 123-168. for more information on our programme, see tereza krupová and marek zima, street law and legal clinics as civic projects: situation in the czech republic. oñati socio-legal series, vol 7, no 8, 2017, pp 1653-1655 and for the description of the programme after its first two years of existence: michal urban, how to discover students’ talents and turn them into teaching. international journal of clinical legal education. vol 16, 2011. pp 144-153.] to be honest, there was no specific plan regarding how street law curricular as well as extracurricular activities should develop. from the very beginning in 2009 it was the teacher (at that time just one) looking for street law graduates to help him to run the programme. assistance has taken the form of preparing basic hand-outs and related lesson plans, preparing a street law text book to helping with teaching and,[footnoteref:6] of course, planning and delivering the sessions themselves. in addition, young lawyers were drawn into teaching and many could stay linked with the law school even after formal graduation. several of them have gone on to begin ph.d. studies – a great way to maintain the close connection with the street law programme. some have even gone on to join the facility as teaching staff. within years, the street law team had grown to a core of five, taking care of the programme. apart from them, there were more street law graduates running individual small street law projects, mostly based on cooperation with the programme leader. [6: see see michal urban, street law aneb jak učit právo na středních školách <http://streetlaw.eu/soubory/dokumenty/street-law-aneb-jak-ucit-pravo-na-strednich-skolach.pdf>, accessed 17 january 2019.] a major development happened after the summer of 2015 when the street law team agreed to prepare legal workshops for roma children in eastern slovakia.[footnoteref:7] two days of intensive work with thirty extraordinarily energetic young roma, as well as fighting with our own prejudices and understanding of pedagogy,[footnoteref:8] and several other days of staying at their summer school, observing them singing and dancing and then accompanying them to their concerts served as unplanned, but remarkably powerful teambuilding event, which had the effect of expanding our ranks. several team members until then only loosely connected with the team started taking street law very seriously and moved into its core. after this summer, the core team expanded to the current around 15 active members and allowed us undertake numerous new projects and reach new groups.[footnoteref:9] [7: invitation to join the summer school of the roma choir came from their manager and main leader thanks to the recommendation from our friends at czech philharmonic orchestra, which cooperates with the choir. the intention was to offer the children at their summer schools more than music.] [8: for many of us, this summer school was the first true opportunity to meet and start to understand members of the roma minority. together with observation of a very rigid educational approach of their leaders, teaching them – against their public image – strict discipline, created countless opportunities for deep discussions about our, their and common values, and allowed us to experience deep emotions (when being confronted with values and the beauty and power of their music). this all no doubt added to the remarkable impact of this event on our programme.] [9: it should be noted that this extracurricular expansion of the programme did not change the nature of the street law programme – primarily providing faculty students with the their own legal education and skills development and pedagogical assistance.] they are run by the street law team/community, which we considered an important and kind of special feature of our programme that gives our programme great strength. the street law team members are mostly street law i graduates (or graduates of others street law credit-awarded courses), who are devoted to participating in our programme predominantly on voluntary bases. over the years, there were about 70 students who joined our team (as opposed to almost 300 who graduated from a street law accredited course – see the section 2.1). we will now describe, through various groups we have been working with, the current form of our programme. 2.1. law school students and high school students in 2009, street law in prague began with a voluntary weekly seminar at the faculty lasting one semester (4 months roughly) and was called street law i. this programme still exists. first, law students are taught to teach, and then they are sent to high schools to actually do some law-related teaching, usually in one class. the area of law they are expected to teach depends on high school teacher’s demand – it varies from constitutional law and human rights to labour or criminal law. this is followed by a group evaluation of the law students’ experiences. the students spend around 10 – 12 hours on each part of the programme. additionally, those who complete this first course are offered further and more intensive teaching experience (street law ii). their task – again – is to teach at a high school and the students are asked to teach for at least 40 hours, which is approximately for around half of a the high school year. both of these courses carry academic credit and form the gate of prague street law programme. since 2009, 288 law students have ‘graduated’ from street law i and 14 have ‘graduated’ from street law ii (which started 6 years ago). the most recent accredited extension of street law in prague has been the introduction of the street law iii and the street law – a course on consumer literacy. the structure of the latter is similar to street law i, but it focuses exclusively on consumer law, which is usually not covered at high schools. street law iii, by contrast, differs from previous courses. it was established for law faculty students who have already experienced extensive teaching. its curriculum varies according to the demand from secondary schools: students might be required to teach couple of lessons or organize mock trials (and make use of our experience with more than 120 mock trials we have organized so far) at different high schools, arrange visits to real court hearings or design and try out fresh lessons. after four years of operation, 68 students graduated who attended the street law – a course on consumer literacy seminar and 12 students street law iii. these four courses are the only credit awarded activities in the prague street law programme. in our accredited courses, we offer high schoolers interactive workshops on topics by their choice, mock trials at our law school’s court room and participation in national moot court competition among different high school teams. apart from high school students, which were our first audience (and more than 5000 high school students have participated in our sessions so far) we gradually developed closer cooperation with romany people, senior citizens, prisoners, young people from children´s homes, scouts leaders and even with high school teachers. each group inevitably has its own specific needs and demands. it is, for example, relatively easy to organize street law at high schools. law students receive credits for their teaching[footnoteref:10] and typically teach in pairs, high schools are usually flexible and willing to cooperate with the law faculty, which many have been doing for several years. on the other hand cooperation with some others groups is far less formalized and sometimes heavily dependent on factors beyond the control of the street law team (e.g. workshops for prisoners – because of their nature – can be stopped just by a decision of prison staff.). for reasons of brevity we will now attempt to summarize the issues we have found when working with particular groups. [10: the credits are awarded for active participation on street law i seminars at the faculty, at least 10 hours of teaching at a high school and creation of final portfolio (comprised of all used lesson plans, reflections of the lessons etc.).] 2.2. romany people we work primarily with a romany children's choir čhavorenge.[footnoteref:11] it consists of approximately 60 children from 8 to 18 years of age from the czech and slovak republics. čhavorenge has been operating for several years and organizes its own events, which we are now invited to join. for several years, we have participated at their annual summer schools and off-site concerts and organize legal workshops for them in between their singing commitments. the fact that most of these events lasted couple of days represented a great opportunity for integrating legal literacy work. apart from the benefit of being in a closer contact with the children, participation in summer schools and concerts worked as a deep teambuilding for the street law team itself.[footnoteref:12] we have participated in four such events so far.[footnoteref:13] [11: for more information, see international initiative for development for ethnic art, project čhavorenge <http://www.miret.cz/en/page.aspx?v=pagecollection-13> accessed 17 january 2019.] [12: see section 3.3.] [13: for more information see hana draslarová and michal urban, street law for czech and slovak young roma musicians. international journal of clinical legal education, vol 23, no 3, 2016, pp 148-171.] 2.3. senior citizens we have, to date, entered into partnerships with numerous local day care centres for elderly people, community centres and libraries, responding, where we have the capacity, to demand. one-off seminars and workshops are offered focusing on the important themes for elderly people (for example inheritance law; consumer protection law; family law; patient’s rights; domestic violence; protection of privacy and neighbour issues). an estimated 700 seniors have participated in these programmes to date. in 2018 a new course was established in cooperation with the university of the third age at charles university. traditionally, in this programme, seniors are introduced to the basics of various law areas and topics through lectures of law school staff. street law organized a set of mock trials for them, which participants welcomed with extraordinary gratitude and everything suggest that our involvement in the programme will continue. 2.4 prisoners our experience with prisons and prisoners is still relatively limited. so far, the team members have organized two series of seminars for 25 inmates, who were about to be released from prison and enter civilian life again. based on the demand of the prisoners and in coordination with prison officials, the seminars focus primarily on debt and loss of property.[footnoteref:14] [14: one of the biggest issues for former prisoners in the czech republic is indebtedness. prisoners often come out of a prison with high debts, which in fact often means exclusion from certain aspects of civil life due to existing legal provisions. for instance, high debts usually mean high wage assignments for debtor that leaves him only with minimum resources. for such a debtor it is more advantageous to earn his living elsewhere than in a legal job. ] based on the encouraging feedback received from the inmates and following positive responses from prison officials, we have decided to continue with this programme and have started our third prison ‘season’. 2.5. young people from children´s homes as a follow-up to our work with čhavorenge choir, we have run two weekend workshops for children from care homes. two groups of 15 participated: one consisted of younger children (10 to 15), the other of 15 to 18 years-old. these workshops allowed us to put together a programme that might be used for other similar workshops in the future. there are currently two street law members preparing new workshops, which will hopefully establish a more conceptual and institutionalized cooperation with various children’s homes. 2.6. scouts leaders for scouts, their leaders and other young people connected with them, we hold periodic interactive talks. these cover topics that are of interest to young people – for example getting a job, finding a home and claiming state benefits. the cooperation with them actually started because they provided us their clubhouse for some of our meetings and we agreed that instead of paying rent, we would organize several talks for them. 2.7. high school teachers street law students come and go and they usually cover only several school lessons. high school teachers, in contrast, remain in schools for several years or even decades. hence, another part of what we do is that we offer a special law courses for teachers. we offer 6 different courses. the first focuses on pedagogy of law teaching, the second on civil law and the third on public law. the fourth looks at human rights, the fifth on moot courts (or mock trials more precisely) and the sixth on utilising of street law methods in the classroom. courses last for 5 hours and take place at the law school in prague. in addition, we have an open database of law lessons on our website, which teachers can use as a resource. the law students prepare this material and a lawyer checks the content to make sure it is accurate and appropriate.[footnoteref:15] [15: see street law (prague) < http://streetlaw.livepreview.cz/lekce> accessed 17 january 2019.] we also provide another service connecting students and teachers with judges who are willing to welcome them into court. this is of great interest to the teachers and pupils and many judges that understand the importance of public trust in judiciary and for that reason welcome a class in their courtrooms and even find time to talk to the class before and after the trial and answer their questions. last but not least it should be mentioned that couple of years ago we started offering our own seminars at faculty of education of charles university to future teachers of civics. we concentrate both on the didactics of law and legal issues that teachers might not be familiar with or find particularly challenging. we believe that these courses give teachers both knowledge and confidence helping them both in future study, classroom preparation and delivery.[footnoteref:16] [16: the high school teachers are as a group prague street law programme is focused on. for reasons why we devote so much of our attention to this group, see subsection 3.6.] ‘good practice’ and the prague street law programme[footnoteref:17] [17: compare to david mcquoid-mason, street law as a clinical program: the south african experience with particular reference to the university of kwazulu-natal. griffith law review. vol 17, no 1, 2008, pp 31 and following, pp 47-48.] during the ten years of our street law programme, we have identified the following beneficial practices that may prove inspirational for others. 3.1. easy does it! let the new street law students start in a relatively easy way. instead of sending them to teach at more demanding facilities (such as prisons or particularly challenging schools), the first experience of our students tends to come from upper-secondary schools where discipline, behaviour and the teaching context tends to be both predictable and manageable. with many of these schools we have been cooperating for years and know the teachers, in whose classes our young lawyers will be having their first teaching experience. our law students receive training in both legal theory (through other courses at the faculty) and teaching practice (through street law courses) before they enter the school classroom.[footnoteref:18] moreover, they can make use of help from both the secondary-school teacher and faculty staff and use teaching materials that were put together by teachers or previous students of the street law course. before teaching their first lesson, they need to observe the pupils they will be working with alongside the regular school/class teacher. usually they discuss their lesson plans before they try them out and have a practice lesson in a safe law school environment where they receive the feedback from the teachers and their peers. although we do not want to keep our law students on a lead, certainly not a very short one, we consider teaching practice at a relatively good school as sufficiently demanding and challenging – certainly to start with. while we do want to challenge our students, at the same time we want them to succeed in their teaching practice and a regular class at a relatively good secondary school serves well enough. of course we also feel responsible for secondary school pupils who will spend ten lessons with our law students. once they finish this first, normally positive experience, there comes time for more demanding activities with different audiences. those, who did not enjoy the “save” teaching, do not feel the need to continue with the more challenging options and are not joining our street law community. [18: topics are selected mostly by secondary-school teachers and depend on the schools’ curricula. apart from the czech constitution and human rights, our students typically teach the basics of civil, criminal, labour and/or family law.] 3.2. more demanding teaching for interested students. once our law students successfully finish their first street law semester, they can continue with teaching on the next stage of the street law programme and become a member of street law team. our offer is open to everybody, but we prioritise those who have proven to be effective teachers and who obviously enjoyed it. for every 20 students enrolled into the street law i course each semester, some 3 or 4 decide to try the more demanding teaching options we have available. either they can start teaching one class for the whole semester or two, or they can test their skills in a more demanding teaching environment – teaching young roma, senior citizens, school classes arriving at law school for mock trials or groups of prague prisoners. it does not matter so much which part of our street law programme they join, what matters is that they do a professional job and hopefully stay with and become part of our street law community. after they complete the street law i programme we offer them the chance to stay with street law in the medium and perhaps long term if they wish and challenge themselves on various street law projects. from time to time we organize seminars aimed at personal and professional development of team members (e.g. workshops on time-management, presentation skills, or new teaching methods). however time-consuming and difficult it is for those of us who run the programme, we attempt to make our members feel that we care for their development as well as serving public legal education needs. 3.3. build a street law team – a community of students, teachers and graduates of the law school. as seen above, prague street law programme started as a one-semester course – a small group of 15 law students and one teacher. within a couple of years, it developed into a programme of four different accredited courses[footnoteref:19] taught by three teachers and with many young lawyers-to-be trained in the street law method and ready to teach almost any law-related subject. the programme has expanded beyond the boundaries of faculty courses and consists of many activities that are not accredited courses – because they involve more demanding teaching (e.g. teaching secondary school teachers and roma children), consist of non-teaching tasks (running our website, presenting street law activities at various events etc.), or because they are performed by students and graduates who have already finished street law courses offered by the law school.[footnoteref:20] over the years, we managed to build a group of devoted students, teachers and graduates of the law school, who all share a common interest in promoting legal literacy, thus they form a street law team. there is now a clear commitment to pro bono work and growing belief in cultivation of non-lawyers’ (as well as their own) legal awareness. around 15 people meet monthly to plan or evaluate street law activities. over the years we learned that regular meetings of the whole team – teachers, lawyers and students – are necessary to keep the community running and thriving. beyond that, we spend occasional weekends together, even watch movies or go for a concert or beer – i.e. we do what friends or good colleagues typically do. the group consists of the more involved (almost addicted) members as well as those who join us less often, and the team gradually change its composition as new students arrive and others are drawn into legal practice or other working commitments. the core of the team represents a de facto street law student union and is able to monitor, develop and sustain the programme. to keep the community in a good shape and organize its various activities takes time and effort of the programme leaders and other team members, but we regard this communal responsibility as crucial and a key characteristic of the prague street law programme. a team of friends who study, do street law activities and spend their free time together (if there is any for them) proves to be also a very effective way of running the programme. moreover, it allows the leaders of the programme to observe, supervise and foster further personal and professional development of all participants, which never ceases to be one of the major street law goals. [19: they vary according to the length of teaching experience (from 10 lessons up to the whole year of teaching), the type of activities involved (teaching regular lessons, organizing mock trials or coaching secondary school students’ mock trial teams) and the intensity of supervision required (more closely-supervised for street law beginners and more independent but still monitored work for the more experienced). see section 2.1 for further information.] [20: the list of accredited courses may, of course, expand even further and include some of the above-mentioned teaching activities. however, since they are typically taken mostly only by a handful of students every year and since our students may already gather a substantive amount of credits through street law, we are currently not thinking of introducing a new course.] 3.4. let the team members develop their own ideas. unlike some perhaps more rigidly and structured street law programmes, our prague offering welcomes students’ initiative and, subject to resources, is always willing to consider new projects. after students successfully finish some of the street law seminars, they are – in our eyes – prepared for building up their own initiative. they must, of course, serve the general street law mission and not undermine our ability to meet other existing commitments, but once a student or more typically a group brings an idea to the table, they have, in practice, a realistic chance to see it come to fruition. if adopted we will include it in the activities run under our name, consult with students and make sure they have the resources and planning skills to put it into action. we will even try to support it financially. it is up to students to do most of the work and enjoy the joy of success afterwards, of course. some of these projects end well and turn into a more permanent part of our programme (e.g. the high school mock trial competition, a competition of secondary-school teams coached by law students, and cooperation with a prison), some take place only once or are eventually not realized at all or with limited success.[footnoteref:21] as far as they do not tarnish the street law reputation, we try to accept these projects as we respect our student’s capacity for innovation and their energy and commitment. the result is, after all, not always important as long as students are learning in the process and the audience is not hurt in whatever way. through such innovation and inclusiveness the current street law participants become the natural leaders of future street law activity. [21: they may easily become a regular and permanent part of our programme led by one of more experienced students (typically the one who realized it at the very beginning) and supervised by programme leaders and other senior programme members either through common meetings of project leaders, or individual consultations. ] 3.5. no rush to leave the law school. it may be tempting, especially for older graduates of street law programmes, to find reasons for establishing an independent street law association, under which all street law activities – probably with the exception of accredited courses – would run. after all, being part of a law school may require consultation with faculty management that often slows down the development of individual projects. moreover, it can be quite confusing that a group providing legal education does not have a legal entity itself. however, unless the law school limits the programme in some unreasonable way it is in our view highly beneficial for the long-term development of street law programmes to stay under the law school ‘wing’. the name, resources and overall reputation of the law school can automatically open many doors and enhances the programme in the eyes of general as well as legal public, not to mention specifically in relation to secondary schools. various law school grants manage to cover some of the expenses of running street law courses and accredited courses count towards the overall workload of the staff concerned.[footnoteref:22] but most importantly: being integrated into the curriculum of the law school and run – at least to some degree – by faculty members or phd students is the best safeguard for the continuity and sustainability of the programme. as enthusiastic and energetic as students often are, their interests and availability typically change, especially after graduating, which can leave street law programmes run for example by a ngos, student unions or independent associations with an uneasy task of finding new volunteers. being part of a law school and run as an (or indeed several) accredited course provides a solid base for teaching and supervision through faculty staff and an invaluable source of new students who join the street law programme from semester to semester. when thinking in decades rather than months or years, close connection with the law school has proven to be a good option. therefore, we work hard to ensure that our programme retains its good name not only among the non-lawyers and partners we work with, but also with the students and teachers of our faculty. we regularly inform faculty stakeholders about our activities, experiences and successes both online (on our facebook page and faculty website) and offline (on an old-fashioned notice board in the law school building, during information and orientation days and at various faculty forums and academic events such as round tables and conferences). additionally, we accept invitations to present our programme in the media (newspaper, journals, radio and television) and make sure that the name of the law school is mentioned in connection with it. all of this, and two recent awards for pro bono and pedagogic work that we received in 2017 helps to gain respect and support from prague law school and render the whole initiative more sustainable. however, it is fair to add that not every faculty member views street law in bright colours. for some, street law is just a non-scientific free-time activity that should be extracurricular at best. needless to say that we are patiently trying to change their minds by continuing with our work and mentioning benefits of street law at various occasions.[footnoteref:23] [22: prague law school teachers typically run courses that the faculty requires them to teach and then are expected to develop other courses reflecting their interest and expertise as well as doing other academic activity (e.g. writing papers and books). from the beginning teachers could include street law courses into their workload. similarly, phd students co-teaching street law classes can count time spent as part of their study-related faculty activity.] [23: apart from either staying as an integrated part of the law school, or having an independent legal entity running all street law activities, there is a middle position available: run accredited courses at the law school and all other activities, which we in this text describe as activities done by our street law community, by an independent association. as clever as this option seems, since it promises to combine advantages of both models, it opens the danger of departing of the two halves of the programme from each other. once they will be directed by different people or groups of people, which they soon or later will, they will most probably start seeing things slightly (or more importantly) differently, having other programme priorities, working with programme members differently. all that is not necessarily bad, sometimes it might even bring mutual inspiration and possibly healthy competition, but only on one condition: that the programmes and people running them would remain frequently talking together and discussing all important matters. once this is lost, and there are many examples from the world of ngos as well as politics that it may happen rather quickly, problems necessarily arise. this represents one of the strongest reasons why prague street law has not established any independent entity, although some programme members would wish so.] 3.6. street law for school teachers. however active our street law programme was in its first decade, its overall direct impact on legal literacy of general public inevitably remains relatively small. we have no doubts that it influences several hundreds of people each year, some of them profoundly, but overall legal literacy of the wider public is a huge challenge and there are many in our country who remain ignorant of many matters of a legal nature. therefore, for many years one of our priorities has been to educate teachers especially at secondary schools both in law and efficient ways of teaching it, including organizing mock trials and teaching them how to run them themselves.[footnoteref:24] their impact as future teachers of law across a range of high schools could be much more profound than that of a small group of law teachers and students. this is often termed ‘training of trainers’. while law students teach couple of lessons a year or month at maximum, these teachers spend with their pupils 20 or more lessons every week and might well continue doing so for several decades to come. for years we have therefore offered school teachers seminars and workshops in which to develop their understanding of law and the legal process, equip them with well-tried and tested teaching methods and encourage them to use more interactive teaching, reducing time spent on the ‘one-way’ lecture. seminars naturally serve as a platform through which they share their experience, best practices and often their enthusiasm (many of our course teachers are truly great teachers). apart from sharing our street law experience and materials (textbooks and online database of lessons), as learning is a two-way process, we also gain a lot from the teachers, allowing us to further enrich our future courses for teachers and other street law activities. some of the teachers come regularly; some invite law students for teaching practices or travel with their classes to our law school for mock trials in our courtroom. generally, they are very grateful for our care and come to our sessions very motivated. for the same reasons, for several years we have been running seminars at charles university faculty of education for future lower and uppersecondary school teachers of social sciences. most of them will be teaching the basics of law and political science, which are compulsory parts of czech secondary school curriculum. [24: see similar idea of “training the trainers” in david mcquoid-mason, ibid. in south africa street law lessons for teachers were demanded by teachers and supported by local greatest teachers union. ] law students going through street law programmes typically do not change their careers and swap law for teaching in schools. some of them, however, want to carry on with some teaching alongside their legal careers (and some actually do so). to ease their way into schools, we established in cooperation with charles university faculty of arts a pedagogical course, which provides an official qualification to teach at secondary schools. without it, some school directors might be reluctant to employ law school graduates and prefer qualified teachers with only basic knowledge of law. 3.7. successful and sustainable project management. ten years of running our programme has taught us many lessons in successful and sustainable project management. as our team of two or three started to expand and gradually reached current figures of around 15 active members and number of other participants of our community, many things needed to change. sometimes we were able to anticipate the necessary changes, sometimes we needed to experience a project-based crisis or have an open (and sometimes not necessarily pleasant) discussion with team members to find out what is lacking in a programme and how it can be improved. we now find, after 10 years of implementation that we tend to follow a set pattern of design, review and implementation. each project or street law initiative will have its own coordinator who is responsible for it. it is their task to deal with everyday agenda, longer-term planning and establishing their team from the pool of our street law students and graduates. heads of projects meet once a month to discuss necessary everyday agenda, planning and coordination of projects and long-term goals of the whole street law programme. typically, every two years,[footnoteref:25] we meet for a strategic planning meeting and discuss and decide upon our long-term goals. even though sometimes we “merely” come to the conclusion that our goals remain the same, these meetings play an important role in uniting the team, building a shared vision, enabling us to talk through troubling issues, misunderstandings and different views of running the programme. we now intend to hold such meetings every autumn and every following june to reflect on how much we managed to achieve our goals and priorities. the extended team, consisting of heads of projects and all other street law members, meets monthly (with the exception of summer vacation) with the aim of introducing individual projects and their current state of development to street law beginners, inviting them to join the project of their choice. [25: our recent experience makes us believe that in fact a strategic planning should happen on the beginning of every school year and be followed by a reflective meeting towards the end of the school year. our reluctance to organize these meetings annually originated in the presumption that to add two more meetings to already full street law schedule (not to mention other school and work duties our street law members have) would be met with disinterest or tendency to arrive to these meetings only from the sense of duty. contrary to that, our members seem to like these meetings and consider them important parts of building our street law programme and community.] understandably, some students and street law graduates are very active and take part at many events, whereas others come to relatively few meetings or stick to just one project. this naturally creates a core of the team, who have a far bigger impact on the programme and are far more socially integrated into the team than those who play a lesser (but still important) role. everybody can move between these two groups according to their availability and preferences. apart from the meeting of head of projects, the rest of the meetings and events are open to every street law member. to keep everybody informed, we established a street law google calendar available to all street law members, where minutes of meetings are circulated and team-building exercises organised. lessons learnt in prague that might be best avoided 4.1. taking in too many students – quantity over quality. the overall law student interest in signing up for the basic course street law i often exceeds our true capacity. in the past we have experienced semesters where there were as many as 30 students enrolled in one seminar. despite our efforts to break the group into smaller units for many activities, having two teachers and teaching interactively, we realised that such a group size was sub-standard, mainly due to shared impression of ´over-population´ of the seminar. both students and teachers felt that in a group of 30 – and despite all efforts – it is much easier to become a free-rider. additionally, a smaller group automatically creates a notion of exclusivity, especially at a faculty where usual number of students in seminars exceeds 30. if there were more students willing to take the course, we have come to the conclusion that it is better to run two parallel seminars, each for 15 students. typically, we accept 15-20 students every semester and might enrol even two or three students over this limit, since we know from experience that some will drop out from the course. to have 15 motivated law students makes the seminars working at an optimal level and allows the teachers to consult individually with students details of their teaching practice. a greater number presents a range of problems including motivational issues and supervisory problems. 4.2. not-meeting regularly with the street law team. when projects run smoothly, or so it appears, it is easy to stop meeting with members of the team individually and not talking with them about the programme and especially its shortcoming. likewise, the urge to organize strategic meetings decreases. in the long run, however, it has always proved to be a wrong decision to cancel these meeting in the “time of peace”. even though many times strategic meetings “only” approve our current practice and confirm that the programme is running well, they typically also bring interesting insights into the operation of the programme and suggestions for improvements. many inherent features of the programme have indeed in the past come from dissatisfaction of some team members. the time and energy that might be tempting to put directly into concrete projects may rather be better spent, at least in part, in reflecting on existing activities and dynamics of the team. having a well-oiled team used to providing instant feedback is in our experience a far greater asset when taking a broader perspective. members of the team are, after all, still relatively young men and women who are gathering experience with teaching and teamwork and their own personal development. the role of programme leaders is to support and facilitate this learning, even though team members may not be students anymore and work instead as junior lawyers at various institutions. the fact that the programme supports this continuous education of young lawyers represents a great strength and not a weakness of the programme, even though it might limit the maximum number of events we organize. to give one concrete example, we have been struggling for years with the question whether to establish an independent legal entity for street law and run it outside of the faculty.[footnoteref:26] after debating the issue thoroughly we found out that what was one part of our team actually calling for was transparent division of powers and responsibilities in the team. therefore, we introduced heads of projects and their regular meetings and the issue of independent legal entity and all the emotions arising around it lost its urgency.[footnoteref:27] [26: for more information on this matter, please see section 3.5. above.] [27: it has not, however, died out. it reappears every now and then and requires another discussion considering the pluses and minuses of establishing an independent street law entity and looking at what other motivations might lie behind the proposal for more independence from the law school.] 4.3. underestimate the value of praise. most of our team are volunteers, who work for street law in their free time. occasionally, we manage to gain funding for some projects, which allows us to cover project costs, but generally, our activities are run by our beliefs rather than money. people stay with street law because they want to help, to try something new, to learn or practice skills or because they want to remain a part of the street law community. disregarding their motivation, they all deserve acknowledgement for the time, energy and sometimes the resources they put into their teaching. the attention and words of programme leaders possess extraordinary power in this context. when praise is not forthcoming, or not as often as a team member would expect, it raises doubt: ‘am i doing my work properly?’, ‘is the project i’m working on good enough, as the street law leaders do not seem to really appreciate it compared to other projects?’, ‘do “they” actually want me in the street law team?’. these doubts and the emotions attached to them might easily poison the atmosphere in the team and cause objections to the programme and its management – often of course very distant from the actual problem, i.e. lack of acknowledgement of the value of a particular street law project or the merits of individuals’ work. preventing such misunderstandings and perceptions can save many hours of talks, team meetings and agonizing – there is no doubt as the saying goes that ‘prevention is better than cure’. the fact that prague street law works as a community does have – apart from the benefits suggested above – its downsides. a friendly atmosphere in the team creates a notion that everybody’s opinion is taken by others as equal and equally appreciated. it might work in some situations (when for example designing a new seminar), but generally are the opinions of programme leaders taken more seriously, sometimes even oversensitively: even a minor comment on the quality of a project might lead to a disproportionate feeling of praise or criticism by those who work on the project. as if the attention of the programme leaders for the concrete project was more important than the project itself, its quality and benefits it brings to the audience. it was important for us who run the programme to realize that we tend to forget a decade of age difference (and correspondent difference in experience and authority) between us and older street law members. the traditionally formal relationship between a teacher and a student still exists, at least to an extent and especially on the part of a student. our experience tells that it is far easier for a teacher to start taking their formal students as colleagues and peers, or even as friends. what do we currently struggle with? apart from the ‘good practice’ described above and the advice (born out of experience) that we hope others might follow to avoid or better manage problems , there are also issues we are still dealing with and to which we have not yet found a definitive answer. 5.1. we are constantly searching for a better way of organising and conducting our team meetings. how often should our team meet? on the one hand, we want team members to have enough information about the whole programme and not to focus just on the project they are involved with, on the other hand we do not want to bore them with long or overly-frequent meetings that might deal with things they are not concerned with. individual projects must be coordinated, which is the main responsibility of programme leaders, but to what extend should also other street law members and especially heads of project know the finer details about other projects? and to which extend are the together meetings only saving the time of the programme leaders, who are getting information easier from them, as they do not need to meet with the project leaders individually, and to which extend do they really help the programme as such? our current model distinguishes three different types of meeting. first, there are monthly meetings of project heads, where detailed planning as well as long-term decisions are considered and everybody is informed briefly about development in other parts of the programme. secondly, monthly meetings of the whole street law team are held, which are designed to attract newcomers as well as exiting participants. these meetings introduce the individual street law project and help the new members to get involved. thirdly, we have the yearly strategic planning meetings where the direction of the whole programme is debated and planned. the system is still developing, as the programme is expanding, which constantly changes the dynamics of the team and the needs for regular meetings. 5.2. who should make final decisions? should it be the head of the programme, after discussing it with senior and other team members, or should it be the collective or a body delegated with such tasks as the meeting of the head of projects? should there be different decision-making bodies or people for different types of decision, for example when considering the spending of grant money? in the past, there were e.g. doubts about the extent to which financial support from prague street law should be spent on a moot court competition organized by another czech law school. 5.3. should we establish a separate legal entity or not? we have discussed this above. 5.4. what are the best ways to integrate newcomers into our street law team? they typically come to their first street law meetings after going through street law i, but then many of them stop coming, often without telling us why. we introduced an older team member responsible for being in touch with them and making sure they feel comfortable among us. we encourage heads of projects to actively approach newcomers and offer them concrete roles in individual projects. it pays off, but we are far from being satisfied. colleagues of ours advised us to assign every newcomer a mentor from the established street law team allowing more intensive and personalized contact, to become more authoritative at assigning first tasks to newcomers instead of waiting until they make their minds and make sure we meet with those who stop coming to street law meetings and find out what they are missing in the programme and what would help them to stay (happily) on the team. they are all great suggestions we will gradually try out. 5.5. graduates of basic street law course come and stay in our team/community in waves over the years we have observed that graduates of basic street law course come and stay in our team/community in waves, even though we invite approximately 3-6 of students (graduates of street law i) every semester. they therefore naturally form generations, layers of the team which joined in around the same time. this brings synergy in the team, motivate other team members and encourage developing closer relationships among team members, but also generates problems: especially when such a generation graduates and starts to withdraw from the programme. how should we bridge the gap it leaves in the programme? what other roles can we offer to experienced members who now have less time for our activities because of their work constraints? some stay as project heads and concentrate more on coordinating work rather than doing it themselves, some withdraw and come to meetings and events irregularly and sometimes rather unpredictably. we are using their experience for concrete tasks, especially short-term ones. 5.6. how to work effectively with street law alumni? every year, some fifty law students graduate from our street law i programme and around ten of them join our team. we continue to work with those who join our community in the ways described earlier in this paper. however, we have found no way so far to work systematically with the rest of our alumni, even though we know that many enjoyed street law i course and have given positive feedback.[footnoteref:28] should we concentrate our energy on the majority of our alumni, since they might – often already in the roles of (trainee) attorneys, public prosecutors and judges – bring fresh experience, know-how and prestige back to our programme? street law might continue inspiring them to do pro bono work at their own institutions or through our programme, which would certainly increase the level of our events for the target audiences. [28: see hana draslarová, street law as a unique learning method: what do students themselves actually find to be its benefits? answers from the czech republic. international journal of public legal education, forth coming, 2019.] conclusions since the first street law came into existence almost half a century ago, street law programmes have spread around the globe and are proving to be viable, sustainable and beneficial platforms for increasing legal literacy amongst members of the public as well as developing the knowledge, skills and professional responsibility of law students. every programme is necessarily a unique mix of audience, teachers, students, projects, priorities and strategies. approaching the end of the first decade of prague street law, the reflection of our experience and its comparison with other programmes we have visited, heard of or read about,[footnoteref:29] brings us to realization of key characteristics of our own programme. [29: for example georgetown street law <https://www.law.georgetown.edu/experiential-learning/clinics/dc-street-law-program/>, centre for socio-legal studies, university of kwazulu-natal <https://namati.org/network/organization/centre-for-socio-legal-studies-university-of-kwazulu-natal-south-africa/>, university of warsaw <http://en.uw.edu.pl/tag/faculty-of-law-and-administration/>, bpp university <https://www.bpp.com/insights/bpp-streetlaw>, palacký university in olomouc <http://lawforlife.upol.cz/klicove-aktivity-2/program-pravo-pro-kazy-den-street-law/> and masaryk university in brno <http://udvis.law.muni.cz/streetlaw.html> all accessed 17 january 2019.] first of all, we have a large team of street law graduates volunteering in their free time and staying with the programme even after finishing accredited street law courses – we have referred to them in this text as street law team or community. secondly, the programme is led in a less directive way than many such initiatives, students are encouraged to propose and realize their own projects and have influence on what the whole programme looks like. thirdly, the first experiences students in our programme gather are from relatively easy environments and only gradually do we allow them to gain experience with more demanding teaching (such as training of trainers groups, the roma minority and prisoners). fourthly, we offer our graduates accredited pedagogical courses that carry qualification for teaching at secondary schools and ease their future way into public education in the role of teachers. finally, we intentionally and for the long-term benefit educate secondary school teachers and students of prague faculty of education in law and interactive ways of teaching it, since we believe that they, as teachers, are key elements of change in the perception in and understanding of law and society. none of these features are, of course, unique. many other programmes do similar work (and much more!) and certainly work as our inspiration. the above-described characteristics only show the current mix of specific elements of our programme. how will our programme develop in its second decade? there are of course many variables in the play, but our street law dream is as follows: in ten years, prague street law will become a semi-professional programme integrating generations of its graduates with prague law school students of all years. it will be run by a team of staff members, supported by a paid assistant handling most of the administrative work, and it will be offering high quality, entertaining and yet enriching seminars, workshops, mock trials, weekend programmes and summer schools for different groups of members of the public. there will be extended open online database for good teaching materials and number of textbooks published by the street law team. the brand street law will be opening the doors of czech schools, the professional as well as general public will know about it and our voice will be heard and taken seriously in discussions around school reform, educating future teachers and legal literacy more generally. and we will of course help with preserving what is street law globally famous for: openness to new ideas, not shying away from discussing legal values and constant readiness to cooperate and, if necessary, offer a helping hand to other street law programmes. 207 86 foreword foreword welcome to the autumn 2011 edition of the journal, soon to be followed by a spring 2012 edition� my thanks to kevin kerrigan who has now passed editing on to me� kevin has been promoted to dean at northumbria law school but will remain heavily involved in our clinical programmes and in our clinical conference� the gaje/ijcle conference, valencia, july 2011 ijcle partnered with the global alliance for justice education (gaje) to organise their 6th worldwide conference and our 9th conference� the conference was hosted by the institute of human rights, faculty of law, university of valencia� there were several other local partners including the legal clinic at the university of valencia; the human rights institute bartolomé de las casas at university carlos iii in madrid, the legal clinic “dret al dret” at the university of barcelona, and cedat (centre d’estudis de dretambiental de tarragona) at the university rovira i virgili in tarragona� more than 300 delegates from more than 40 countries attended the conference which explored the gaje theme: “combatting social injustice through justice education” and the ijcle theme “life, the universe and clinic: what questions does clinic answer?”� conference delegates were therefore able to explore a fascinating and broad spectrum of experience and opinion on both social justice and educational issues� our heartfelt thanks go to both our colleagues in gaje and the conference hosts and local partners� more detail about the conference and papers presented can be found at http://www�gaje�org/conferences/6th-worldwide-conference� next year’s ijcle conference, durham, england, 11-13th july 2012 next year’s ijcle conference will be in durham, a city founded in ad 995 with a world heritage listed cathedral and castle� the theme of the conference will be: entering the mainstream: clinic for all? we will be exploring this question from many perspectives including pedagogic, professional and social justice� as ever, we welcome papers on a wide diversity of matters related to clinical legal education as well as the specific conference theme� highlights of the conference include: a keynote paper from professors blaustone, klein and galowitz (other keynote speakers to be announced shortly); interactive workshops on clinical teaching; conference dinner and ceidilh at durham castle and optional visits to evensong at durham cathedral and beamish open air museum� for more information please visit www�ijcle� com� i look forward to renewing old friendships and making new ones amongst our ever growing global community of clinicians� in this edition ben waters reports on a mediation clinic within an english undergraduate law degree� he rightly points out the need to move beyond a traditional approach to dispute resolution which focuses upon litigation� despite more than a 15 years having passed since lord woolf’s plan for litigation in england and wales to be seen as a last resort, the teaching of alternative dispute resolution in england and wales is patchy at best� the initiative at canterbury christ church university in kent is an example of how students on a substantive law course can benefit from a clinical experience within the curriculum and how the next generation of lawyers can experience at first hand the benefits and challenges of mediation� professor william patton’s article reminds us that clinical education can sometimes proceed on a model that is based upon group activity directed at social justice goals identified by the professor� in following this model we may be making assumptions about student learning that rests upon a generalisation that firstly our students will benefit most from group activity and secondly that exposure to social justice work as identified by the professor will necessarily lead to increased pro bono activity by students in their later professional life� professor patton describes his different approach at whittier law school� this self directed policy clinic is based upon student choice of the area in which they wish to work in a “client-less” clinic� students then complete tasks such as: preparing letters to the editor of a newspaper; legislative analysis of a pending bill; an appellate brief or working on a community lawyering project� the clinic allows students to self direct, thus giving them ownership and the ability to select projects in accordance with their own ethical and political views rather than those of the teacher’s� in doing this, professor patton postulates, the clinic lays the foreground for deeper engagement in lifelong pro bono activity � the article is a persuasive call for a different kind of clinical experience� it might be argued that both this and the live client clinic ought to form part of the learner’s experience� undoubtedly a self directed policy clinic affords the student more autonomy and the opportunity to follow an individual learning path� it is less likely to offer the learning that can take place in more team oriented clinics or the motivation and learning that can occur when working for a real client when a real person’s experiences and problems are immediate for the student� in the last edition of this journal kevin kerrigan and i argued that clinical experience should pervade the law curriculum� we would argue that professor patton’s model of clinic should form part of the law degree alongside the live client clinic� professor richard wilson explores the stages of the clinical year in law school drawing parallels between the cyclical stages of clinical experience, which can be strongly linked to the seasons, and functional education as practised at his church in washington d�c� many clinicians, of different faiths or none, may well recognise the stages which professor wilson describes� the paper particularly helps one to remember the emotional highs and lows which both students and supervisors almost invariably experience through their time together� dr michal urban’s paper gives a fascinating insight into a street law project explicitly aimed at those law students with the motivation and talent for teaching� this project at prague law school, charles university in the czech republic is interesting because the focus is so clearly on learning teaching skills� this has led to both standard and upgraded programmes which clearly scaffold the students’ experience and give them a real opportunity to develop their teaching ability� most 87 international journal of clinical legal education autumn 2011 1 lord woolf, m�r�, access to justice final report, july 1996� street law programmes, be they involving community groups or school children, require an element of pedagogic skill� there may well be elements of prague law school’s programme which could be explored to see if our own street law programmes, which do not have the same emphasis on law teaching, can adopt some of the methods used� we will certainly be reviewing our own street law programme in the light of dr urban’s paper here at northumbria� jonny hall editor foreword 88 89 international journal of clinical legal education autumn 2011 reviewed article: clinic, the university and society marriage of convenience or a match made in heaven? collaboration between a law school clinic and a commercial law firm. margaret castles1 university of adelaide, australia the cost of clinical legal education courses has always been a challenge to law schools. in the last 40 years clinicians have developed and trialed many different innovations in clinical law, in response to increased student demand for clinical experience, and greater pressure on the legal services market. two common models are the in house clinic and the externship placement. this article explores the idea of a ‘reverse externship’ – with private solicitors coming into an in house clinic to assist in the supervision of students on placement. it tracks the development and implementation of this initiative, and reports on both the practical challenges and the pedagogical benefits that we encountered. introduction australian law schools have developed diverse clinical legal education experiences, including partnerships with legal aid organizations, law school run clinics, and externships to community and private legal practices. 2 1 margaret castles is director of the clinical legal education program at adelaide law school 2 kingsford legal centre clinical legal education guide 2013-2014 (kingsford legal centre 2014) provides a comprehensive outline of the various programs operating in australia at present. see http://www.klc.unsw.edu.au/news/2012/08/clinical-legal-education-guide-2014published ( ijcle vol 23 no 2 ) ( 10 ) these programs make a substantial contribution in diverse and specialized areas of legal need and policy development in australia. the seemingly endless diminution of funding to legal aid in australia has undoubtedly contributed to the number and variation of clinical initiatives across the sector. they have become an important facet of justice access and are now as much a part of the legal aid landscape as community legal centres and legal aid services. at the same time, law students and the profession are demanding more nuanced and practice focused legal education for law graduates. finding ways for clinical programs to expand their contribution to justice access in the community, and to better prepare students for professional life, is high on the agenda for both clinicians and law faculties. one option that has not been much explored in australia is the partnering of private law firms and law schools within law school clinics. rather than law students externing in private firm, private practitioners come to the clinic and participate in the supervision of students in situ. melbourne law school has recently introduced such a model into its sustainability business clinic 3, and there are examples of similar initiatives in the usa4 , and the uk, 5 but as yet this is not an established clinical model and there is little literature on the topic. 3 see melbourne law school public interest law initiative (september 2015) <http://www.law.unimelb.edu.au/pili/pili-subjects/sustainability-business-clinic/about> 4 see alicia e plerhoples and amanda m spratley ‘engaging outside counsel in transactional law clinics’ (2014) 20 clinical law review 379,393. in 2013 adelaide law school and commercial law firm lipman karas (“lk”) which has offices in adelaide london and hong kong, commenced a partnership in the magistrates court legal advice service (“mclas”) one of two law school legal advice clinics operating as part of the adelaide law school clinical legal education (“cle”) program. the purposes of the partnership were to bring solicitors who were keen to engage in pro bono legal work into the law clinic environment, to enrich students’ clinical experience, and to support the work of the clinic in the community. this paper tracks the development and implementation of this initiative. first, i outline the operations of the mclas, and our initial responses, to this idea, identifying the preliminary policy challenges that we identified, and how we resolved these. then i discuss the practical development of our collaboration, including the nuts and bolts of developing and implementing the partnership. next i evaluate the benefits that the various stakeholders in this engagement have ultimately obtained, with particular focus on the pedagogical benefits for our students. in conclusion i summarize some of our key findings, and suggest ways forward for others considering such initiatives. 5 queen mary university of london operates a free legal advice centre with approximately 100 solicitors providing supervision of students on a pro bono basis. see http://www.lac.qmul.ac.uk/about/index.html overview of clinical legal education in australia most law schools in australia operate cle programs, many through the medium of law school run legal advice clinics. some law schools have partnered with existing legal aid or community legal services, with students undertaking their cle experience under the supervision of the host agency, often with some supervisory engagement by faculty.6 others run their own clinics as part of their undergraduate program, 7 where students are supervised by faculty or employed solicitors. a number of law schools also offer externship programs where students may be placed at private law firms, although placements are predominantly at public and community agencies. 8 most universities run several programs across a number of these options, often associated with different clinical courses.9 6 for example, australian national university, griffith university, james cook university, monash university, murdoch university, the university of queensland and the university of western sydney all operate clinics within existing legal aid agencies with the involvement of some faculty staff. 7 for example, flinders university, university of south australia, adelaide university, griffith university, newcastle university and university of new south wales have services that are primarily operated by the university with university funded staff. 8 for example, deakin university, adelaide university, university of south australia, griffith university, university of technology sydney, la trobe university, macquarie university, queensland university of technology and university of new south wales. 9 adrian evans et al ‘best practices australian clinical legal education’ report prepared for the australian council of law deans (september 2012),9, provides a structured taxonomy of the different types of programs. < http://www.cald.asn.au/assets/lists/resources/best_practices_australian_clinical_legal_edu cation_sept_2012.pdf> cle in south australia in south australia all three law schools run clinical programs. 10 the university of south australia operates a legal advice service that is located on campus with outreach services to two busy suburban courts. 11 flinders university operates a clinic on campus, with an outreach to a suburban court.12 adelaide law school operates two legal advice clinics, one co located at the magistrates court in adelaide and the other co-located at homeless center in adelaide.13 all schools also offer clinical externship placements in a range of legal, community, and government agencies. in a small state like south australia, where there are three law schools, and many graduates seeking post-graduate legal training opportunities, there is a high demand for experiential placement opportunities. this means that externship opportunities for undergraduate law students are limited. the problem of ensuring appropriate experiences on externship in a relatively small legal services market limits the number of externships that can realistically be offered.14 this is only exacerbated by the contraction of the 10 see rachel spencer, margaret castles and deborah ankor ‘clinical legal education in south australia’ (may 2014) 36:4 bulletin (law society of south australia) 38-40 11 see <http://www.unisa.edu.au/business/law/clinic/> 12 see <http://www.flinders.edu.au/ehl/law/legal-advice-clinic/> 13 see <https://law.adelaide.edu.au/alos/about/cleprogram/> 14 jeff giddings ‘extern placements for law students: out of sight out of mind or putting students in the picture?’ (paper presented at 1996 skills development for tomorrow’s lawyers: needs and strategies australian professional legal education council sydney 1996) conference papers volume 1 575-598; legal services market, 15 and has led to focusing resources into law school operated clinics, which can only cater for a limited number of students. the magistrates court legal advice service the mclas, which is one such service, is co-located at the magistrates court in adelaide. it is run by the adelaide law school, and is independent from the court. it provides legal advice and support in claims up to $15000,16 in the minor civil (small claims) jurisdiction. litigants may only be represented in trial in limited circumstances,17 and of necessity, a semi-inquisitorial approach is often adopted by the court in trial. mclas’s work includes minor commercial, contract, neighborhood, dog attacks, fences, debt, property damage, motor vehicle, minor statutory claims, consumer claims, de facto property division, strata titles, failed investments and defamation. typical of many such services, the monetary value may be low, but the legal issues, and the evidence, can be complex. mclas does not enter a formal retainer with clients,18and does not go on the court record. 15 cynthia baker and robert lancaster ‘under pressure: rethinking externships in a bleak economy’ (2010-2011) 17 clinical law review 71, 74 -76; nancy m maurer and liz ryan cole ‘design teach and manage; ensuring educational integrity in field placement courses’ (2013) 19 clinical law review 115, 124. 16 the jurisdictional limit is $25000, but the clinic limits assistance to matters up to $15000 due to the limits of the service and the inevitable complexity and risk associated with higher claims. 17 parties may be represented by leave of the court in certain limited circumstances. see magistrates court (civil) rules 2013 (sa) r 13 (4). 18 clients sign a release acknowledging that the service can only provide advice, not representation, and that they agree to the condition that the service can stop assisting them at any time. instead, support is provided via the preparation of legal opinions and research, drafting pleadings and correspondence for clients to send, 19 and exploring alternative dispute resolution options. the service operates two days per week, with two groups of 8 students, supervised by one solicitor, each attending one day for a twelve week semester. an intensive placement occurs over summer, two days per week for six weeks, and fortnightly clinics are offered over long university breaks. the cost challenge of in house legal advice clinics there are many systemic and financial challenges in operating in house clinical services. the value to the student of a clinical placement is significant20, but the operational and teaching cost is exponentially higher than almost any other law subject21. close professional supervision, premises, office supplies, it equipment and communication technology are costly. oneoff grants, in kind contributions, or sharing of existing resources with other organizations can assist, but seldom provide certainty for future planning. commonly, grants are available for new initiatives, but not for ongoing operating expenses. this can make it difficult to sustain, let alone develop, established clinic services. 19 sometimes referred to as “ghostwriting”. 20 proponents of cle argue that it is an essential component of educating lawyers. see, eg, peter a joy ‘the cost of clinical legal education’ (2012) 32 boston college journal of law and social justice 309. 21 paul campos ‘the crisis of the american law school’ (2012) 46 michigan journal of law reform 177, 192. the ongoing cost of solicitor/faculty supervision of students, and any associated running or insurance/registration costs, poses increasing strain on diminishing law school budgets. 22 whilst most law schools accept the value of clinical programs (if not the imperative to offer them23) the funding model for law schools creates deep-rooted challenges. 24 law schools have of necessity adopted high teacher/student ratios, low contact hours, and streamlined use of technology to deliver legal education at less than half the cost of comparable tertiary degrees. 25 the idea of experiential, low student: supervisor ratio, learning that is the foundation of other professional university degrees26 is traditionally not part of a modern law curriculum and inevitably limits law school appetite for such programs. 27 22 plerhoples spratley above n 3, 393. 23 professor jeff giddings from griffith university points out that many law schools see their clinical programs offering an “edge” in an increasingly competitive education market. jeff giddings promoting justice through clinical legal education (justice press, 2013)136. 24 law students in australia pay on average $10 000 per annum for a law degree. of this approximately $2000 of that sum is directed to the law school. the cost of an arts degree is approximately $6000, with $5500 going to the school. medical students pay the same tertiary fees as law students, but $21700 is paid to the school. (figures based on funding rates for commonwealth supported university places 2014 – the hon dr david kemp and andrew norton report of the review of the demand driven funding system australian government department of education (2014) commonwealth department of education and training available at http://docs.education.gov.au/node/35537) 25 see giddings above n 22, 121. 26 for example, medicine, health sciences, nursing and social work. 27 joy above n 19, 310 points out that clinical legal education is often the first area to receive budget cuts in financially difficult times. see also jeff giddings ‘a circle game: issues in australian clinical legal education’ (1999) 10(1) legal education review 33. at an ideal student/supervisor ratio of 8:1 (sometimes 6:1) 28 for clinic supervision, the cost of a supervisor is many times the per student cost of a lecturer teaching between 30 and 400 students at a time. 29 even with university funding for solicitor/supervisor positions, most university law clinics rely upon external funding support by way of grants,30 to maintain the program and develop new initiatives.31 there are very persuasive reasons to find ways to minimize the cost of clinics to ensure a rich and accessible experience for as many students as possible. at the same time, quality control, risk management, and the need to ensure a valuable educational experience are paramount considerations that constrain the opportunities for expansion. one way to expand opportunities is to find different ways to enlist the support of the private profession. 28 evans et al above note 8, 27 suggest an even lower ratio of 4:1 in a busy “live client” advice context. 29 giddings, above n 22, 322. 30 the law foundation of south australia operates a benevolent grants process to support justice access initiatives in south australia. it has been a constant support to the clinical programs operated by all three universities in sa by both seed funding for new initiatives and ongoing financial support. without this support, the development of new initiatives, not to mention the maintenance of day to day services and community education work, would not be possible. 31 giddings above n 22, 145 points out the importance of outside funding to clinical programs in australia. the traditional externship model the most common way for law firms to participate in cle is via externships, where law firms take one or more students on an experiential placement32. there are both financial and educational advantages with externship programs. an extern program is much cheaper than an in house clinic, because there is no expenditure on supervisor/faculty salary.33 in a diverse externship based program, a rich variety of social justice issues and work types can be incorporated in to the teaching component. in a mixed cle program, where students are placed both at in-house clinics, and on externships with private firms, the inclusion of private practice placements facilitates classroom exploration of different models of legal practice, and helps the class to consider professional values and ethics across the public/private divide. of course externships can be an educational failure if the firm or agency is not equipped to engage in the educational process with the students. 34for that reason detailed guidelines have grown up around the management of 32 griffith university; la trobe university, maquarie university, queensland university of technology, southern cross university, university of newcastle, university of new south wales, university of south australia, university of adelaide, wollongong university all offer externships with private firms as part of their varied cle offerings. 33 see baker and lancaster above n 14, 83. 34 joy, above note 19 322 ; roy t stuckey and others best practices for legal education: a vision and a roadmap (clinical legal education association, 2007) 155 emphasize the need for clinical experiences with a high level of autonomy, and recognizes that not all externships will permit this degree of deep learning. externship placements, so that students do receive educational experience consistent with the goals of the cle program35. it is also necessary to ensure that equitable work principles are not compromised by unclear placement expectations.36 in a crowded legal marketplace, looking to the private profession as a source of externship experience is often quite difficult: · firms are already overburdened with graduate diploma of legal practice or practical legal training students seeking professional placement and give priority to those students over undergraduates; · busy private practitioners can find it very difficult to supervise a clinical placement student effectively – finding time to mentor, educate, and patiently develop a student’s skills can be a real challenge in a busy legal practice;37 · the imperative to bill inevitably impacts upon the capacity of a private firm or solicitor to host students, in direct contrast to a cle or government agency where there may be more flexibility to justify time spent on supervision and education; 35 see maurer and cole above n 14, 132-135. 36 in australia there has been significant concern about the exploitation of students eager for work experience in the legal and other professions. see andrew stewart and rosemary owens experience or exploitation report for the fair work ombudsman 2013 (university of adelaide 2013) 43-44. 37 barbara a blanco and sandy l buhai ‘externship field supervision: effective techniques of training supervisors and students’ (2003-2004)10 clinical law review 611, 612. · few private practitioners will permit students to interview clients alone or actively participate in interviews. in many cle programs client contact is critically important;38 · the range and nature of work can be limited and unpredictable in a private practice setting, meaning that a relatively short placement (typically one day per week spread out over 12 weeks) may be unluckily devoid of variety or interest; and · supervising a cle student is different to supervising a young lawyer, and the quality of supervision in private practice can be variable.39 a different approach: bringing private practitioners into the clinic another way to engage the private profession with cle is to include private lawyers in existing clinics. instead of students in ones or twos being placed with a private firm, members of the private profession can come into the inhouse clinic environment – a sort of ‘reverse externship’. alicia plerhoples and amanda spratley operate a transactional legal clinic in georgetown usa. they have introduced visiting supervisors from the private practice into this clinic, in response to some of the challenges outlined above. in their recent evaluation of the engagement of outside counsel in a the 38 evans and others above n8, 5, 15, emphasize the importance of interaction with and responsibility for real clients as part of clinical experience. 39 blanco and buhai above n 36, 621, 623 giddings above n22, 89. clinic40 they suggest several reasons a law school clinic can benefit from the inclusion of outside solicitors. firstly there is the direct justice access advantages that arise from the capacity to extend the breadth of services; 41 secondly, there is the opportunity to leverage community legal resourcesparticularly by linking with private solicitors who may also be in a position to do pro bono work for the clinic community.42 in terms of educational outcomes, the involvement of different legal experts expands the depth and breadth of work students can engage in, 43and enables students to engage with multiple styles and methods of lawyering in developing their own professional identity. 44 on an institutional or faculty level, connecting with the profession can enhance institutional relevance in the community, 45 and the professional support offered by expanded collegiate connections creates a richer and more realistic professional environment for faculty supervisors, who can find limited relevant support within faculty for practice/clinic dilemmas.46 there are advantages for private solicitors who want to engage in pro bono work as well. the common problems that supervisors of externs encounter 40 plerhoples and spratley above n 3. 41 ibid 383. 42 ibid 386. 43 ibid 387. 44 ibid 388. 45 ibid 389-390. 46 ibid 390. lack of time, lack of focus, pressure to bill, 47 are removed when the solicitors leave their own office and come to a clinic – they are physically separated from the daily pressures of their own practice and able to focus on their supervisory role without distraction. at the same time, their time commitment is predictable, being limited to the hours they will spend at the clinic. these factors provide persuasive reasons for private practitioners to become involved as supervisors in a law school clinic. early experience of visiting supervisors in clinic the adelaide cle program places approximately 32 students each semester,48 of which 22 are placed in law school operated or affiliated clinics, 8 are placed with community law centers/legal aid offices, justicenet 49 or government agencies. we place a small number of students on externship with private practitioners when their capacity permits, or when there is a particular need for pro bono legal work.50 47 blanco and buhai above n 36, 616-620. jeff giddings’ recent survey of supervisors as part of an australian office of learning and teaching national fellowship also indicates that supervisors find balancing their own workload with effective supervision consistently challenging. <https://www.griffith.edu.au/criminology-law/effective-law-studentsupervision-project/survey-results> under heading supervisor surveys overview 48 the program operates over three semesters, with a smaller number of students in the intensive summer semester where placement is two days per week over 6 weeks. 49 justicenet is the south australian equivalent of a public interest law clearing house – it processes applications for legal services on the basis of merit and means, and links clients with a large cohort of private practitioners prepared to act on a pro bono basis. 50 for example, from time to time we have a surge in externships to firms working on refugee appeals, or in other areas of particular need. the operation of the two legal advice clinics is the most costly aspect of the program, and the sort of pressures discussed above mean we are always looking for more cost effective ways of operating. over the life of the cle program at adelaide law school we have had several flirtations with engaging with the private profession in our clinical program, primarily with a view to cutting the costs of supervision. at one of our clinics, the adelaide legal outreach service (which caters primarily for homeless and disadvantaged people) we invited community lawyers and private practitioners to participate as pro bono supervisors. the practitioners who volunteered to assist with supervision were experienced in community law, well suited to the supervisory/education role by virtue of their existing work in the community sector, and familiar with our client demographic. they did not need extensive training in dealing with our client base, or the notion of how an advisory service operates. like most busy practitioners, they could not afford the time to be trained in clinical pedagogy,51 but having experience with law students on placement at their own agencies and in some cases teaching experience, were well equipped to interact effectively with students. however, we encountered significant practical challenges. firstly, the introduction of visiting supervisors brought home to us how important 51 plerhoples and spratley above note 3, 408 409 acknowledge this reality, suggesting that at the very least outside supervisors should have some induction to the model and ethos of the clinic. continuity of supervision was both for educational experience and client service. many of our cases take weeks or months to resolve, and it was time consuming for students to have to acquaint a new supervisor with details of a case and the reasons for strategy adopted a week or so previously with a different supervisor. the process of explaining a case to a third person is a valuable exercise for a student, providing a forum for reflection, review, and justification of decisions made, but the educational value of this exercise was eclipsed by the time it took for students in a challenging environment to acquaint visiting supervisors with often complex case histories whilst clients waited for advice. whilst visiting supervisors brought a fresh perspective to the clinic, and expanded the students’ exposure to different practice styles, philosophies, experiences, and practices, this benefit was overshadowed by the difficulties of interposing visiting supervisors into the existing day to day operation of the clinic. when adelaide based international commercial law firm lipman karas raised the question of involvement in mclas, we welcomed the opportunity to revisit ways to develop a more structured partnership between a clinic and a private firm. policy concerns with a commercial/clinic partnership our first thought were of the potential disconnect between the practices and ethos of a “high end” commercial law firm and a grass roots legal advice service. it is no historical accident that law school clinical programs are most commonly connected to community and legal aid environments. the cle movement has its roots in contribution to public interest/community work, and this is reflected in the objectives of all clinical programs in australia which uniformly acknowledge commitment to pro bono principles, social justice, and service to the community as key program objectives. 52 these objectives are mirrored in cle coursework which explore themes of justice access and socio/legal equity alongside the development of professional skills and values. there is an obvious commitment to key values reflected in clinical programs in the range of formal pro bono activities with which many law firms now engage.53 even so, beneath the surface lie significant cultural differences. the imperative to bill is an overwhelming feature of private practice, as is the 52 mary anne noone ‘time to rework the brand ‘clinical legal education’ (2013) 19 international journal of clinical education 341, 352. 53 see national pro bono resource centre ‘fourth national law firm pro bono survey final report’ (report, national pro bono resources centre (australia) december 2014) <https://wic041u.serversecure.com/vs155205_secure/cms/files_cms/4th_national_law_firm_pro_bono_survey_201 4_final_report.pdf> need for time efficiency and outcome focus. these imperatives are diluted in clinic, where time management (rather than time recording) is flexible to ensure students have time to explore and reflect on tasks, and where we will often spend significant time assisting a client to find and access other (nonlegal) remedies. 54 in addition, many clinics intentionally adopt non adversarial values as part of their client service model. 55 we want our students to learn about different approaches to practice, but we foresaw an inbuilt disconnect between the way our different practices worked that might cause challenges in the clinic. whilst lawyers ascribe to the same overarching ethical values, and seek to provide high quality contextual service that is responsive to client needs and interests, there are many different approaches. the imperative to “leave no stone unturned” in pursuit of the clients’ legitimate goals pervades adversarial legal practice. in clinics where we work on very low level disputes for self-represented clients, we are highly attuned to the need for a pragmatic and economical use of court process commensurate with the matters in dispute. most in-house clinics adopt frankly social justice focused practice models, and teach according to those values. whilst many law firms have in-house pro 54 michael king, arie frieberg, becky batagol and ross hyams non adversarial justice (federation press 2nd ed 2014) 248. this difference is one of the reasons private practitioners are attracted to clinical pro bono work – it offers the opportunity to explore legal practice and social justice in a broader context. 55 king et al above n 53, 249. bono programs,56 social justice does not pervade the day to day work of the office as it tends to do in a clinical practice. 57 like many large firms in south australia, lk already had a well-developed pro bono program. engaging in this clinic offered lk a novel and different way to have input into a broader pro bono initiative – hands-on involvement in educating law students, providing sustained professional and case management support to an existing enterprise, and providing a consistent and supported pro bono opportunity for staff. 58 the teaching and mentoring role that solicitors engage in contributes to their own professional development. other advantages include the opportunity to develop strong relationships with final year law students for recruitment purposes, despite the significant differences between a big commercial law firm and our small clinical service, the partnership seemed to fit our values and had the potential to expand our services into the community. we also recognize that very few of our students will end up working in the community/legal services sector. many of them will end up in private practice, and we felt that a 56 for example via housing legal clinics, or justicenet, or public interest law clearing houses in various states in australia. 57 a survey completed as part of professor jeff giddings’ effective law student supervision project in 2014 suggests that there is considerably less focus on social justice issues in private practice hosted externships. see ‘the effective law student supervision project major findings – supervisor survey’ <http://www.griffith.edu.au/ data/assets/pdf_file/0005/700439/major-findings.pdf> 58 see national pro bono resourcecentre ‘the australian pro bono manual’ part 1.4 promoting a pro bono culture for a more detailed discussion of the many benefits for law firms engaging in pro bono work. http://www.nationalprobono.org.au/probonomanual/page.asp?sid=1&pid=20. partnership with solicitors engaging in pro bono work would model these values. at the same time, we needed to consider the subtle messages that this partnership might deliver –that clinic work is “bargain basement” compared to the service that might be obtained through a private firm, or that clinical practice is unrealistically “ivory tower” in nature.59 another issue related to values and ethos was the risk that students might perceive the visiting solicitors as “real lawyers” in a way that might adversely impact upon the credibility of the clinical supervisors. clinic hierarchy is often discussed in terms of the negative impact of hierarchical structure on students, 60 but we were also concerned that the engagement with visiting lawyers did not undermine the role of our own supervisors. we demand diligence and professionalism from our students, but we also create a professionally nurturing environment. law students, no less than the community, are attuned to the dominant media portrayal of the lawyer as confident, decisive, directive and indeed, sometimes ruthless. 61 we deliberately challenge these assumptions within the cle program. 59 see stuckey, above note 33, 198. 60 wallace j mylniec ‘where to begin: training new teachers in the art of clinical pedagogy’ (2011-2012) 18 clinical law review 505, 508. 61 see, eg, david m spitz ‘heroes or villains? moral struggles vs ethical dilemmas: an examination of dramatic portrayals of lawyers and the legal profession in popular culture’ (2000) 24 nova law review 725, 727. potential benefits of clinic/private engagement ultimately, we decided that the pedagogical reasons for developing a partnership outweighed our concerns. we particularly valued the following opportunities: · expanding supervisory capacity: more supervisors available to spend one on one time with students on complex case work and challenging tasks; · providing some “time out” for the clinic supervisor to work on policy/management issues; · raising the profile of our service within the broader legal community · extended pedagogical benefits for our students by facilitating engagement with different professional teachers/mentors from different backgrounds; and · developing a community of practice around the work done at the clinic, through formal professional/collegiate links. we determined to keep the risks and concerns that we had identified at the forefront of our minds during development of the collaboration, and to explore any concerns as planning progressed. implementation of the partnership having considered the broad questions of ethos and values, we then turned to the day to day practicalities of developing a partnership, which i will deal with in turn. these include: · integrating visiting supervisors within the clinic model · memorandum of understanding (“mou”) between the parties · insurance · management of potential conflicts of interest · supervision training · partnership management integrating visiting supervisors mclas operates two days per week, from 9.00 am-5.00 pm. each day 8 students are supervised by one solicitor. in the morning, students work in pairs to interview one or two clients. in the afternoon, students do follow up case work.62 clients self-refer, or are referred through the court process, or from other services. unlike many duty solicitor services, mclas offers ongoing support to clients in civil matters, and may work with a client over weeks or months. 62 where time permits, clinic students also observe court, and all students work on a major justice access project that is part of their assessable work. they also maintain clinic policy guidelines, resources, update case notes and other resources. the clinical supervisor engages with students at all stages, although does not attend client interviews. students see clients in pairs, without supervision, and consult with the supervisor during the interview before substantive advice is given. all follow up-work is signed off by the supervisor. there are no offices at mclas. the clinic is situated in one large room (a disused courtroom) with students working at large tables, and the supervisor sitting “on the bench”63 for case consultations, and in the larger area at other times. the supervisor is very much in a “helicopter” keeping an eye (and an ear) on everything that is going on. this enables constant tracking of learning needs, student dynamics, and work progress. we decided that we would start with a modest proposal to minimize disruption to clinic operations. after introductory training and development covering the nature of the clinic, the role of supervisors, and the pedagogy of feedback and clinical learning models, lk solicitors would attend in pairs, one afternoon per month. we were concerned that the “organized chaos” of the morning sessions, with 8 students seeking direction on up to 6 clients, posed too much of a challenge, and that participation in the less busy afternoon case work activities would enable some structure to be built around these afternoon sessions. this is discussed further in the section on building a teaching partnership. 63 not in any attempt convey hierarchical dominance! it is the only workable option given the layout of the room! memorandum of understanding plerhoples and spratley, in their report of engagement of outside counsel in a transactional law clinic64, suggest an exhaustive memorandum of agreement 65 which provides detailed instructions about every aspect of the interaction between clinic and outside solicitors, correctly pointing out that leaving things to “work themselves out” is likely to lead to problems in the future.66 we were of the same mind, but decided to develop a much simpler mou that reflected our goals and intent (as well as some of the critical organizational details that related to risk management and insurance) but that did not set out chapter and verse of the arrangement. we also found that whilst preemptive description of our goals and proposed working model was needed, we could not detail the precise working relationship on important matters of risk management until we had unraveled the insurance challenges that our partnership presented. our mou canvasses: · the combined educational and justice access goals of the clinic and the intent of the partnership; · the nature of work that lk solicitors will be involved in; · protocols for managing potential conflicts of interest; · protocols for file responsibility and oversight; 64 above n 3. 65 ibid 425. 66 ibid 419-410. · explicit reference to our respective insurance arrangements; and · communication and problem solving mechanisms. the mou is partly aspirational, but contains step-by-step instructions for day to day management of critical processes to ensure that they are followed precisely. thus the mou forms part of our risk management strategy, given the insurance issues that inevitably arise in a collaboration of this nature. insurance professional indemnity insurance was inevitably the biggest hurdle. as part of the university of adelaide, clinics are covered by university insurance. practitioners in sa are insured under a professional indemnity scheme through the law society of sa. both parties’ brokers were far from convinced that any liability arising from work done by a visiting volunteer supervisor at the clinic would be covered by university insurance. lk were understandably concerned that in the event of a claim, they would be exposed by virtue of having been briefly involved in a matter at some stage. one approach was to make all work done at the clinic by visiting solicitors subject to sign off and review by the clinic supervisor. we felt that this would entrench an unrealistic hierarchical approach, and failed to reflect the collegiate purpose of the partnership, and the expertise of the solicitors involved. in any event, the professional indemnity insurance provided to law firms in south australia requires them to demonstrate control over all work done by firm solicitors. this means that lk partners must retain organizational oversight of all work done by their solicitors in the course of supervision or supporting case work at the clinic, just as would be the case for work done within the firm, pro bono or otherwise. although for reasons of service consistency the clinic supervisor often has the final approval on outgoing work, legal responsibility cannot be shifted even if the clinic supervisor “signs off” on all work. to manage this, our mou specifies that lk will maintain a file with details of all clinic matters worked on, along with copies of instructions provided by lk solicitors, letters sent under the authority of lk solicitors, and other relevant matters, so that partners of the firm can review the quality of the work undertaken by any lk solicitor on a clinic visit. we also included in our mou specific reference to role: that solicitors from lk work independently alongside the mclas supervisor, but in a collaborative and consultative way. this is consistent with our experience that overarching familiarity with the case, and the jurisdiction, by the supervisor is an important aspect of maintaining cohesive supervision and service, and visibly models good collaborative practice between professionals. conflict management whilst lk and mclas have a very different client bases and are unlikely to encounter conflict, the possibility cannot be excluded. our mou contains detailed conflict protocols. details of all clinic clients and opposing parties are provided to lk to cross check for conflict. additionally, each day that lk practitioners attend the clinic, an updated list of matters and a list of new clients for that day is sent to lk.67 in the event of conflict, the clinic supervisor ensures that lk do not have any involvement with that file. so far there have not been any conflicts. pedagogy – preparing private solicitors to supervise clinic students once these practical issues were sorted out, we turned to the question of educational integrity of the initiative. the nature and quality of supervision is critical to successful clinical learning. new clinicians know how to practice law, but not necessarily how to engage in the supervisory/teaching process.68 although a wealth of scholarship and practical guidance has grown up around training clinicians for supervision, 69 with formal post-graduate 67 part of our intake procedure includes advising clients of this process and seeking their consent. 68 justine a dunlap and peter a joy ‘reflection in action : designing new clinical teacher training by using lessons learned from new clinicians’ (2004-05) 11 clinical law review 49, 53; plerhoples and spratley above n3, 408. 69 mylniec above n58, 505 outlines the complexity of this task, and a variety of approaches and models developed in recent years. training now available, 70 it is inevitable that informal and unstructured approaches to training supervisors will continue.71 our own experience with various supervisors moving into our two legal advice services has been that a combination of supported training (materials, meetings, formal learning) and unstructured, needs-based and flexible collegiate mentoring have worked effectively. engaging our visiting solicitors in lengthy training program was not realistic. 72 however both partners were committed to ensuring an effective supervisory relationship between visiting practitioners and students. there were obvious synergies between lk’s existing structured process for mentoring and support of their own legal staff and the pedagogy of clinical supervision, that meant we were “on the same page” from the outset. solicitors from lk were for example familiar with ideas like structured feedback, 73and mentoring relationships. however we recognized that the visiting solicitors were not preparing for a career in academia as clinical supervisors, and our training processes had to be relevant and achievable. this pragmatic approach is reflected in the us where training of externship supervisors does not require separate training sessions, but may consist written materials about the purpose of the program, manuals and ‘tip sheets’ 70 the university of york in the united kingdom and georgetown university in america both offer post graduate clinical teaching degrees. 71 dunlap and joy above n 67, 53. see also evans et al above n 8, 17,19 indicating that the australian council of law deans also recognizes the importance of “in clinic” integration of supervisors to the clinical program. 72 the sort of structured training program that, for example, mylniec (above n 58) proposes for new clinicians was just not achievable in the context of visiting solicitors. 73 see for example stuckey above n33, 176. and basic guidance on providing feedback and supporting learning. 74we also believed that our insights into the pedagogy of supervision would benefit lk in their mentoring program.75 we appreciated that there would be challenges for private practitioners coming into our clinic environment. in extensive surveys of the experiences of new clinicians in the late 1990s/early 2000’s joy and dunlap identify some of these challenges. we expected, correctly as it transpired, that key challenges to our visiting practitioners would be ceding responsibility to students, knowing when (or how extensively) to intervene, and balancing the needs of the client with the educational goals of the clinic.76 the clinical supervision model calls for restraint. the clinician has to put aside the decisive activist temperament that typifies many lawyers and let the student interrogate the issue, and explore responses. there will often be much more latitude in terms of time efficiency and attention to options in clinic in order to meet educational outcomes; a significant amount of supervisor/student interaction will involve the supervisor assisting the student in developing both autonomy and reflective practice, rather than a more directive and taskfocused approach. 74 james h backman ‘where do externships fit? a new paradigm is needed: marshalling law school resources to provide and externship for every student’ (2006) 56 journal of legal education 615, 635-636. 75 plerhoples and spratley above n 3, 408 identify familiarity with clinical teaching pedagogy as a critical aspect of successful supervision. 76 dunlap and joy above n 67, 62 – 64. the experience of supervising law clerks or junior lawyers does not automatically transpose to clinical teaching, largely because of the other imperatives of non-clinical practice (efficiency, client focus, deadlines and time recording)77. additionally, we were aware that the visiting supervisors from lk would be drawn from solicitors experienced in supervising junior lawyers and clerks, as well as from the ranks of junior lawyers themselves. we expected different dynamics based on the career stage of the participating lawyers. the legal profession has come a long way in understanding the importance of training mentoring and supervising solicitors, particularly early career practitioners. for example, the queensland law society has a supervision guide78 which contains relatively detailed information about motivation and education of junior lawyers, 79 guidance on structures for performance reviews, giving and receiving feedback, and even some suggested language/phrases for interaction between supervisors and junior staff. 80 aspirational in nature, the guide is an excellent start in imbuing a culture of effective supervision. however it goes nowhere near the depth and complexity of the clinical supervisor’s day to day tool kit. 77 ibid 67, 84. 78 queensland law society ‘guide to effective supervision in legal practice: practice support’ (queensland law society 2010). 79 ibid n 77 section 3 effective delegation. 80 ibid n 77 section 8.4 performance discussions. we approached the teaching partnership from the common ground of our supervision/career mentoring programs. we provided an initial continuing professional development (“cpd”) session with lk solicitors, to outline the principles and practice of clinical supervision, following up with an informal review/discussion soon after the partnership started. we were then lucky enough to have professor jeff giddings from griffith university offer a supervision workshop to clinical supervisors in sa, later in the year. we plan to have two formal or semi-formal sessions dealing expressly with supervision practice each year. in terms of the area of practice, we have jointly offered sessions to the legal community in sa, including judiciary and tribunal members, on working with self represented litigants, young lawyer training and education, and mediation practice in the magistrates court. all of these build into our overall goal of building awareness of grass roots justice access challenges in the legal community. we intend to offer two such sessions each year to the broader legal community. solicitors who attend mclas each fortnight are debriefed by the lk coordinator soon after each visit, so we can keep track of impressions, challenges, and areas we can develop. the teaching partnership thus encompasses both working in the clinic, and a program of professional development for all participants. impact of the visiting supervisors on clinic operations and educational outcomes having decided to go ahead our initial focus was on having an extra pair or so of supervisorial hands on deck to supervise students. we hoped that this might free up the mclas supervisor to focus on office management and policy development. in common with many university law clinics, we have no administrative support and the day to day management and supervisory updating of resources often falls to the single supervising solicitor. one or two lk solicitors attend on a rotating basis for half a day per fortnight, in the afternoon. the client interviews have usually finished at that stage, and follow up work is being undertaken by students. we recognized that we would not be able to parachute solicitors into the supervision of case work, much of which had already been discussed between student and supervisor during supervision of interviews earlier in the day. our past experience with visiting supervisors demonstrated that a degree of “helicopter” coordination would be necessary. this necessitated a change in the way the clinic was managed on “lk days”. instead of the 8 students focusing on the clinical supervisor for task guidance and settling work, the supervisor takes a more managerial approach. in the morning, the supervisor identifies particular case tasks that students can work on with a lk solicitor in the afternoon. these will range from file review, drafting documents or letters, research, or case analysis. this provides an opportunity for the students to relate the story of the case to another solicitor (thus organizing their own thoughts and ideas); requires them to think about and respond to questions posed; and creates a valuable opportunity for one-on-one discussion. where a student has a complex task or challenging case, they can have the undivided attention of a solicitor for a couple of hours to deeply explore the issue. allocation of work does depend in part on the experience of the particular solicitor. sometimes instead of case specific work a complete file review of a student’s file load will be undertaken. this is particularly valuable in testing students’ knowledge of the detail of their case and helps them to understand the diligence and responsibility that “owning” a case, and managing a case load, entails. responding to and later reflecting on the questions that a solicitor will fire off when reviewing a file helps students to see the critical issues and think about the responsible management of the case in a more analytical way. these one on one interactions are additionally valuable in that they enable the students to interact with mentors and role models, to explore different perspectives and experiences. a fair bit of ad hoc career advice occurs! often this leads to larger group discussion on a relevant issue – perhaps methods of dealing with a difficult client, ethics, or adversarial conduct. plerhoples and spratley talk about the “chilling effect” 81 of visiting practitioners. my observation of final year students is that they remain terribly reluctant to ask “stupid” questions, or to potentially appear foolish. we continually press the importance of “asking questions” no matter how obvious they might seem, and emphasize the collegiality of the legal profession. it is valuable for our students to find that practitioners from private practice are approachable, helpful, and keen to work with students to find a solution. outcomes as is discussed below both adelaide law school and lk were surprised by some of the things we found, and have developed a much richer and more nuanced understanding of the potential benefits of this partnership as it develops. of perpetual interest to the clinical supervisor is the nature of the relationship with students. whilst our primary focus will be the dual goals of educational experience and client service, we wear many hats supervisor, teacher, mentor, counselor, judge, assessor, guide, and colleague. 82 as primary supervisors, we are mindful about the limits of self-disclosure, avoiding too many (sometimes dated) “war stories”, and keeping enough professional 81 plerhoples and spratley above n 3, 412. 82 jennifer p lyman ‘getting personal in supervision: looking for that fine line’ (1995) 2 clinical law review 211, 213. distance between ourselves and students to visibly maintain equity and objectivity. we also strive to balance hierarchical structures necessary to manage the service, with the educational goal of vesting responsibility and autonomy with students.83 visiting practitioners enrich the clinical experience by providing different relationships. some of them are newly admitted, experiencing the challenges of their first job, and grappling with a tight legal market. their relationship with students is much more of a peer to peer connection. more senior practitioners share experiences that can illuminate student’s understanding of legal practice, and provide the opportunity for student and solicitor to talk frankly about managing disaster ethically, working out professional and interpersonal problems, and normalizing some of the challenging experiences of legal practice. a second significant observation is that the presence of one or two solicitors provides much more flexibility in tailoring educational experience for students. the clinic supervisor can “earmark” a complex case, or a particular task, for one on one time with a visiting solicitor. this gives the student more focused attention. a student who is having difficulty managing workload might be asked to discuss their files with a lk solicitor, with a view to getting help devising a realistic “to do” list with achievement deadlines. another 83 margaret martin barry ‘clinical supervision: walking that fine line’ (1995) 2 clinical law review 137, 145-151. valuable exercise is the “case review” where a student is asked to provide a summative explanation of all of their live files (usually about 4 or 5) to a visiting solicitor, who will prompt the student to probe legal issues, process options, and ways to achieve different outcomes. this engagement is also a good way for files to be reviewed by another solicitor, and for discussion of case strategies and legal options between supervisors. it expands the resources of the supervisor. a student struggling to see the wood from the trees can be paired with a solicitor to tease out critical issues in a case and work on an advice on merit. a student not quite grasping the rigor of managing a “real” case can be teamed with a solicitor to do a risk management review of their file. a student who needs to develop research or letter writing skills can be teamed with a solicitor to work on a specific task to develop their skills. thinking very much “in the moment” – because these opportunities have to be developed on the run and put in place with little forward planning – the supervisor adapts to the work on hand and the educational needs of the particular students to make best use of the visiting practitioners. in a sense the clinic supervisor is adding a second dimension to her role as teacher/educator by directing the visiting solicitors into that role as best suits the needs of students. we have also developed some structured materials to enable lawyers and students to work effectively together – including a research report pro forma and a file review/risk management check sheet. these assist in putting some educational supports in place to ensure that specific learning outcomes are met. the presence of visiting solicitors has not, as we had rather naively hoped, reduced the workload of the supervising solicitor. rather it has changed the dynamic of the service on lk days, and has expanded our opportunity to provide a range of different and more personally focused learning platforms for the students, as well as welcome collegiate support for the supervising staff. conclusion: moving forward it seems inevitable that such partnerships will evolve in different ways depending on their context, purpose and participants. clinical programs in australia have taken on diverse and sometimes specialist roles, guided by particular needs, and available participants and resources. structured involvement of private solicitors within the clinical program is one more way of enriching the offerings of clinical programs. whether in a specialist clinic – perhaps family law or transactional law for community organizations, or a generalist civil clinic like the mclas, private law firms, have much to offer at many levels. ongoing partnerships such as that between lk and mclas are one option, but short term or needs related arrangements may also offer opportunities for tailored collaboration. my concluding advice: 1 don’t expect it to save time or money! plerhoples and spratley suggest that visiting supervisors can help to expand student numbers at little cost.84 our experience thus far is that the educational value to students is significant, but is still dependent upon a faculty/clinic supervisor managing both students and visiting solicitors. whilst our partnership has not cost the law school anything, there are embedded costs. setting up and administering the partnership has taken time and commitment and a lot of thought on both sides. managing conflict checks, visiting rosters, and continuing professional development and monitoring of the partnership is not onerous, but does take additional time. the supervisor’s role has changed, and requires a different skill set to that needed on a ‘normal’ clinic day. 2 be prepared to name and discuss the different approaches to practice in private and community law, and to be clear in discussions with students about different imperatives in different types of practice. lawyers from different types of practice experience different demands, and different levels of risk. be prepared to discuss these with any potential partners, so that a realistic approach to identifying and managing risks is taken. 84 above note 3, 391-4. 3 provide structure for one on one interaction between solicitors and students –develop a research report pro forma, a risk management check sheet, or a file review protocol, to ensure that learning outcomes are met. it is valuable for students to have the opportunity to discuss a case (or career options) with another solicitor, but a deeper professional engagement can be achieved by using more structured exercises. 4 maintain communication – formal presentations on pedagogy and supervision practice have been invaluable, as have informal meetings of all participants to discuss experiences and answer questions. incorporate professional development about supervision and the legal and practice dynamics of the clinic practice as part of the firm’s regular cpd program. 5 take as long as is needed to sort out the professional indemnity insurance issues. we felt that we were going around in circles for weeks between insurers, university risk management services, brokers, and the law society. between the various participants in this negotiation we identified and tested every possible thing that could go wrong and teased out how we would be covered. eventually, it was sorted out. once it is, make sure it is recorded in written form. 6 make the mou work for you. ours provides a constant reminder of the point of our partnership, as well as risk management protocols that can be used to ensure our professional ethical and insurance obligations are met. 7 meet regularly and not always formally – the opportunity to learn about supervision both for visitors and faculty staff in a low key collegiate environment is valuable in identifying day to day opportunities to incorporate flexible learning, and can deal quickly with any issues arising. originally attracted by the practical time/cost reasons for engaging in this partnership, we have found the benefits to be elsewhere. there is strong pedagogical support for developing a community of practice in a clinical program. our clinic is as much about discovering personal role and professional identity, as it is about learning how to “do law”. robert condlin 85 makes a strong case for the background learning afforded by conversation, interaction, and the impact of the “complicated mix of role and relationships” that feed into a deep educational experience for clinic students. the more we can reflect the ecology of a law office, even on a limited scale, the better we are equipping our students for their next steps. this engagement has taken thoughtful planning, but has been introduced with relatively little inconvenience and disruption. it has not offered more 85 robert j condlin ‘learning from colleagues: a case study in the relationship between ‘academic’ and ‘ecological’ clinical legal education” (1997) 3 clinical law review 337, 347. clinical placements to our student body, but it has enhanced the depth of experience offered to our clinical cohort, and has highlighted within the legal community the value of clinical work, and the justice access challenges our legal system faces. it has strengthened the depth and breadth of the legal support that we can offer our clients by expanding the legal expertise available for complex cases. there could never be a “one size fits all” model for such an engagement, but where interests, capacity, practice models, risk management, organizational practicalities, and commitment allow, flexible adaption of such a partnership is worth a second look. reviewed article: teaching and learning in clinic clinical legal education and disability: accommodation, implementation and assessment in service-learning programs martha e. simmons and marian macgregor* york university, canada introduction experiential education is becoming an increasingly relevant pedagogy in post-secondary and professional education. a recent survey of 22 universities in ontario, canada, revealed that each highlights experiential education as an asset to the school’s curricular offerings and heralds it as a beneficial learning practice.[footnoteref:1] most of the universities surveyed connect the benefits of experiential education to the students’ post university opportunities. ontario is certainly not alone in this focus. [1: martha simmons is visiting professor and director of the mediation clinic and intensive program and marian macgregor is clinic director in the osgoode hall law school at york university this informal survey began by using the list of universities provided on the government of ontario ministry of training, colleges and universities website (http://www.ontario.ca/education-and-training/ontario-universities). this website provides a list of 22 accredited universities in ontario. this list of universities also included a link to the specific university official website. from the university’s official site i typed the term “experiential education” to search the internal site. of the 22 universities searched 20 had a positive result for this search term with most having a separate webpage dedicated to experiential education or experiential learning. only two universities, royal military college and dominican college, had no results with those search terms. this is most likely attributed to the specialized nature of those universities (military and philosophy/theology respectively).] the canadian council on learning (ccl), in its 2008 report, “lessons in learning: the benefits of experiential learning”, connected the shift to a more knowledge-based economy to the growing demand by employers for employees with occupational skills rather than solely academic knowledge.[footnoteref:2] the ccl suggests that mandating experiential learning as a condition for graduation from a post-secondary institution offers an opportunity to gain “the job-specific technical skills and the so-called soft skills” required by employers.[footnoteref:3] in the law school environment, experiential programs provide a bridge between the academic and practice worlds. [2: canadian counsel on learning, lessons in learning: the benefits of experiential learning (2008), available at http://www.ccl-cca.ca/pdfs/lessonsinlearning/feb-21-08-benefit-of-exper.pdf.] [3: id. at para 2. ] different models of experiential education are utilized in law school curricula. for this paper, the authors will focus on the clinical setting of service-learning programs, where community service – the practice is interwoven with theory and reflection. the particular focus of this paper will be on the impact of such programs on students with disabilities and the way in which service-learning programs can create universally accessible learning environments. service-learning programs are particularly useful for law students as they enable students to identify the type of law the wish to practice, to develop practice skills, to make sense of the theoretical classroom teaching, to learn professional responsibility as part of an overall reflective practice and to make important networking and mentoring connections.[footnoteref:4] these skills, along with the opportunity to identify and experiment with accommodations that they may need to utilize in practice is of particular benefit for students with disabilities who have greater difficulty finding employment in the legal field after graduation.[footnoteref:5] pervasive and substantial barriers still exist for students with disabilities. clinical programs at law school are a good place to start breaking down these barriers. [4: sande l. buhai, practice makes perfect: reasonable accommodation of law students with disabilities in clinical placements, 36 san diego law review 137 (1999). ] [5: id.; law society of upper canada, report of the disability working group, students and lawyers with disabilities – increasing access to the legal profession (2005), available at http://www.lsuc.on.ca/workarea/downloadasset.aspx?id=2147487144.] this discussion is timely, as there is an increasing number of students in law schools with both physical and “non-visible” disabilities requiring accommodation.[footnoteref:6] certain accommodations have traditionally been provided in the academic classroom, accommodations that may not be relevant in the experiential classroom and clinical setting. this paper will consider the challenges faced by students with disabilities within the service-learning model and will offer some prescriptions for program selection, implementation and assessment. using a critical disability lens, as this paper does, offers a deeper analysis of this subject and reveals that, for people with disabilities, the service-learning model has the potential to reinforce barriers to participation. these barriers are maintained through an ongoing failure to identify and challenge the ubiquitous ableism that is present within the social framework. these problems can indeed be addressed, but a shift must take place in the field of clinical education in order for meaningful change to be made. [6: the nature and severity of disability among law students varies and is not well-documented. some examples of such disabilities include: mental health disabilities, learning disabilities, medical disabilities, mobility disabilities, physical disabilities, sensory disabilities, among others.] this paper will begin by situating service-learning within the larger context of experiential education. it will then turn to an examination of the social model of disability and its relevance for service-learning programs. the final section will narrow in on implications of the aforementioned on program selection, implementation and assessment. our hope is to offer practical suggestions to create and maintain universally accessible programs as well as a theoretical framework from which to view these challenges and opportunities. situating service-learning within the larger context of experiential education before a detailed examination of service-learning and its impact on students with disabilities can be considered, the nature of experiential education must be outlined. the field of experiential education suffers from a conflation of terms and meanings that warrants clarification. the philosophy of experiential education is often confused with the learning process of experiential learning. in turn, each of these terms is further entangled with the execution of their goals in programs such as externships, service-learning programs, internships, work placements or co-ops, among others. to ensure clarity throughout this paper, we will spend some time in this section, explaining and contextualizing experiential education. it is important and necessary to distinguish experiential education from the process of experiential learning. these are terms that are often used interchangeably in error. kolb describes experiential learning as “a process whereby concepts are derived from and continually modified by experience”.[footnoteref:7] the modification of learning through experience is indeed an essential component of experiential education, but it is not sufficient to amount to experiential education in and of itself. experiential education offers a far more enriched educational experience that serves a purpose; it does not simply entail learning a skill. experiential education engages the learner through reflection in an educational triad: theory, practice, and reflection. [7: david a. kolb, experiential learning: experience as the source of learning and development 26 (1984). ] the association for experiential educators uses a base definition that provides some further guidance and refinement: experiential education is a philosophy that informs many methodologies in which educators purposefully engage with learners in direct experience and focused reflection in order to increase knowledge, develop skills, clarify values, and develop people's capacity to contribute to their communities.[footnoteref:8] [8: association for experiential education, definition of experiential education, available at http://www.aee.org.] as an educational philosophy, experiential education has its roots with john dewey who first began writing and connecting “learning through doing” in his works democracy of education[footnoteref:9] and experience and education[footnoteref:10]. for dewey, it was the process of learning rather than the actual content learned, which was paramount. in explaining dewey’s concepts, itin comments that, “it was insufficient to simply know without doing and impossible to fully understand without doing”.[footnoteref:11] [9: john dewey, democracy and education (1916). ] [10: john dewey, experience and education (1938) [hereinafter dewey (1938)]. ] [11: c.m. itin, reasserting the philosophy of experiential education as a vehicle for change in the 21st century, 22(2) journal of experiential education 91 at 92 (1999). ] reflection is an essential component of experiential education philosophy. reflection is critical to ensure that experience along, dewey argues, has the potential to mis-educate the learner in a way that reinforces barriers rather than eliminates them.[footnoteref:12] dewey writes, “the belief that all genuine education comes about through experience does not mean that all experiences are genuinely or equally educative”.[footnoteref:13] thorough and appropriate reflection is required to ensure genuine education takes place. students become exposed, in experiential education, to new challenges that may conflict with or reinforce their preconceived notions. critical reflection helps reconcile misconceptions they have to align with new realities.[footnoteref:14] if a learning experience is not sufficiently orchestrated and reflected upon, it may reinforce stereotypes, beliefs and lead to misinformation. the potential for mis-education of this fashion is of particular note in the context of disability. a more in-depth discussion of the concept of mis-education and its impact follows further in the paper. [12: dewey (1938), supra note 10.] [13: id. at 28.] [14: tania d. mitchell et al., reflective practice that persists: connections between reflections in service-learning programs and in current life, 21 michigan journal of community service learning 4 (2015). ] various forms of experiential education exist, including externships, service-learning programs, internships, work placements and co-ops. this paper considers service-learning as a specific method in order to create clarity around the environment being examined. the unique nature and expansive application of the label “service-learning” to a wide range of activities makes it difficult to articulate a sustainable definition. instead, there is a spectrum of programs that fit within a service-learning continuum, each with different emphases.[footnoteref:15] the following useful definition of service-learning is provided by the national service-learning clearinghouse: “a teaching and learning strategy that integrates meaningful community service with instruction and reflection to enrich the learning experience, teach civic responsibility, and strengthen communities”.[footnoteref:16] it is the combination of out-of-classroom community service activities and academic study that characterizes service-learning models. the great preponderance of clinical legal education programs, including those directed by the authors, indeed combine education, reflection, and community service. [15: d.w. butin, service-learning in theory and practice: the future of community engagement in higher education (2010). ] [16: national service-learning clearinghouse, definition of service-learning (n.d.), (june 2, 2013), http://www.servicelearning.org.] while integral to service-learning programs, the twin dimensions of academic study and community service can be problematic. in a service-learning environment, the connection and balance between learning and service is essential but difficult to master.[footnoteref:17] if the emphasis shifts towards prioritizing community needs, the resulting program looks closer to volunteerism. if the program moves closer to prioritizing the learner, the resulting program is better described as field education or internship.[footnoteref:18] a balance must be struck which is increasingly difficult if the clinical programs are externally funded[footnoteref:19]. the trick is to create a general equilibrium, although at different stages one may take precedence over the other. the focus of this research is on the students and the focus that must remain on the learning that takes place through service to the community. students must come first. [17: a. furco, service-learning: a balanced approach to experiential education, in expanding boundaries: serving & learning 2 (1996). ] [18: id. ] [19: it is not uncommon for legal aid ontario to provide funding to some clinical programs in order that they provide legal services to low income families and individuals.] despite some critique, carefully crafted and executed service-learning programs provide invaluable education to students. service-learning is beneficial to students as it provides enhanced learning opportunities as well as personal and social skill development. a study of about 1500 students found that service-learning had a positive impact on such outcomes as personal development, social responsibility, interpersonal skills, tolerance and stereotyping, learning, and application of learning.[footnoteref:20] indeed, the literature pays special attention to the ways in which student cognitive learning has been shaped and enhanced through the participation in service-learning. these studies have focused on challenging and measuring diversity outcomes (age, race, gender, socio-economical positions and culture) through the use of reflection.[footnoteref:21] they have not yet considered disability as an outcome. [20: j.s. egler & d.e. giles jr, where's the learning in service-learning? (1999).] [21: t. mitchell, traditional vs. critical service-learning: engaging the literature to differentiate two models, michigan journal of community service learning 1 (2008). see also a. green, difficult stories: service-learning, race, class, and whiteness, 55(2) college composition and communication 276 (2003); a.r. roschelle et al., who learns from service-learning?, 43(5) american behavioral scientist 839 (2000).] disability: prevalence in post-secondary education and the duty to accommodate we turn now to the topic of disability in order to explain the duty for service-learning providers to accommodate students with disabilities. canadians with disabilities are protected from discrimination under the 1982 canadian charter of rights and freedoms.[footnoteref:22] the operation of s.15(1) of the charter, along with various provincial legislation oblige post-secondary universities and law schools to provide appropriate accommodation for students with disabilities.[footnoteref:23] ontario’s human rights code defines “disability” as, [22: constitution act 1982 c.11, canadian charter of rights and freedoms at s.15(1).] [23: id.] (a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device, (b) a condition of mental impairment or a developmental disability, (c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language, (d) a mental disorder, or (e) an injury or disability for which benefits were claimed or received under the insurance plan established under the workplace safety and insurance act, 1997; (“handicap”).[footnoteref:24] [24: human rights code, r.s.o 1990 chapter h.19. although this paper focuses on canadian legislation and jurisprudence, similar provisions and case law exist in other jurisdictions.] educational institutions, including law schools and the universities in which they are situated, have a legal obligation to provide “reasonable accommodation” which promotes equity for students with disabilities.[footnoteref:25] the exception to the duty to accommodate is generally only operable where there is “undue hardship” on the person responsible for accommodating those needs.[footnoteref:26] [25: allan mcchesney, navigating law school and beyond: a practical guide for students who have disabilities (2000). ] [26: see for example, human rights code, supra note 24 at s.17(2).] the courts have interpreted the definitional requirement for accommodation existent in the federal and provincial legislation. as defined by mcchesney, accommodation is the adjustment of a rule, practice, condition, or requirement to take into account the specific needs of an individual or group. to some degree it involves treating individuals differently. different treatment to adjust for a disability is legally required if the accommodation is needed to ensure that the individual has the opportunity to participate fully and equally.[footnoteref:27] [27: mcchesney, supra note 25 at viii.] there has been a rise in the number of students requiring accommodation in post secondary institutions over the last decade.[footnoteref:28] the prevalence of various disabilities in a survey of post-secondary students was documented in the national college health assessment, the results of which are depicted in the chart below.[footnoteref:29] [28: l. clapham et al., navigating student mental health and wellness: framework and recommendations for a comprehensive strategy (2012).] [29: american college health association, national college health assessment: canadian reference group data report (2013), available at http://www.cacuss.ca/_library/documents/ncha-ii_web_spring_2013_canadian_reference_group_data_report.pdf.] attention deficit hyperactivity disorder (adhd) 4.6% chronic illness 5.0% deafness/hearing loss 2.0% learning disabilities 3.9% mobility/dexterity disabilities 1.1% partial sightedness/blindness 2.4% psychiatric condition 5.4% speech/language disorder 1.0% other disability 2.1% universities are attempting to provide accommodations to students in the ways they, as institutions, are obliged to do so. however, traditional accommodations, offered by secondary and post-secondary academic institutions, are often of limited applicability and utility in service learning programs. students must have the opportunity to request accommodation and service-learning programs must be equipped to provide required accommodation, which may or may not mirror accommodations utilized in traditional academic settings. disability and service-learning: the problems with ableism and the charity model the definition of disability, as utilized in legislation, is outlined above. at the forefront of the theory on which this paper is based, however, is how disability is conceptualized within the classroom or in the learning environment rather than purely by its definitional elements. we ground our work in the social model of disability, which focuses on socio-environmental aspects of disability rather than simply a bio-medical definition.[footnoteref:30] the focus on a medical model of disability perpetuates the marginalization of people with disabilities whereas the social model recognizes disability as a social construct. although, it should be noted, students ability to receive accommodations within the university setting will require medical documentation to at the very least articulate the functional limitations. [30: ravi a. malhorta, the duty to accommodate unionized workers with disabilities in canada and the united states: a counter-hegemonic approach, 2 journal of law and equality 92 (2003).] as explained by the supreme court of canada in granovsky v. canada, “exclusion and marginalization are generally not created by the individual with disabilities but are created by the economic and social environment and, unfortunately, by the state itself”.[footnoteref:31] the legal profession and law schools are not immune to the barriers that create disablement. efforts must be made to make these accessible. this paper is intended to provide practical strategies to create universally accessible service-learning programs. it is first essential, however, to outline the problematic theoretical framework within which these programs often operate. [31: granovsky v. canada (minister of employment and immigration), [2000] s.c.r. 703, 186 d.l.r. (4th) 1 at 30.] pamela gent is one of the few academics to start applying a critical disability lens to service-learning. gent identifies significant ways in which students with disabilities are excluded from service-learning even when they participate as learners.[footnoteref:32] the exclusion is based on the pervasiveness of ableism within society that fails to comprehend the impact of language, attitudes, program design and roles of people with disability that create barriers to universal participation. ableism refers to “… a network of beliefs, processes and practices that produces a particular kind of self and body (the corporeal standard) that is projected as the perfect, species-typical and therefore essential and fully human. disability then, is cast as a diminished state of being human”.[footnoteref:33] as campbell explains, ableism is based on the belief that the disabled body is “inherently negative and should the opportunity present itself be ameliorated, cured or indeed eliminated”.[footnoteref:34] [32: p. gent, service-learning and the culture of ableism, in problematizing service-learning: critical reflections for development and action 223–243, (t. stewart & n. webster eds., 2011). ] [33: f. k. campbell, inciting legal fictions: disability's date with ontology and the ableist body of the law, 10 griffith law review 42 at 44 (2001).] [34: f.k. campbell, refusing able(ness): a preliminary conversation about ableism, 11(3) m/c journal 154 (2008). ] ableism views disability as a negative, problematic and difficult way of being. moreover, such starting points operate on the assumption that the disabled body will be either cured or reformed to fit within the undefined, yet pervasive, normalized body.[footnoteref:35] in other words, people assume that there are few or no students with disabilities (perhaps because they were cured or reformed) and those that remain follow the script of the disability trope and require little or no attention. the disability trope dictates that the person with a disability is either the incapable childlike recipient of services or the supercrip who subscribes to the overcoming narrative and requires little accommodation or assistance.[footnoteref:36] in this way the learner with a disability is ignored, silenced or hidden and as a result has received little attention or examination. students with disabilities are underrepresented in the service-learning setting, largely because of these problematic views. [35: id. ] [36: brenda jo brueggemann & rosemarie garland-thomson, the politics of staring: visual rhetorics of disability, in disability studies: enabling the humanities 56–75, (sharon l. snyder ed., 2002). ] even where students with disabilities enter service-learning programs, they rarely disclose their disabilities for fear of discrimination because of the pervasiveness of the ableist narrative. as explained by anderson & wylie, given the lore and legend of the competitive nature of law school, these students may fear that their classmates may perceive unfairness if one individual is given extra time to complete a writing assignment or the time pressured high stakes tests. students may also choose to ‘tough it out’ because they realize they are entering a profession with frequent deadlines and high performance standards, and they reason that they should use law school to prepare themselves for practice.[footnoteref:37] [37: alexis anderson & norah wylie, beyond the ada: how clinics can assist law students with ‘non-visible’ disabilities to bridge the accommodations gap between classroom and practice, 15 clinical law review 1 at 20 (2008) [hereinafter anderson].] moreover, faculty members often lack the training to assist students, even if disability is disclosed. owing to this lack of training, students may fear that faculty members may be aware of their need for accommodation and may feel that the student is not capable of practicing in a certain area. there is a concern that if students cannot meet the clinical program requirements without accommodation then they cannot meet the practical elements of the program. since faculty are often integral in providing reference letters, students may fear ramifications resulting from disclosure. despite the onus on students to disclose their disability in order to receive accommodation, these fears sometimes impede disclosure. thus, the authors urge service-learning program faculty to make efforts to create a universally accessible program in order to accommodate all students irrespective of disclosure. aiming to create universally accessible spaces is important because the system of oppression and exclusion for people with disabilities occurs on many levels: individual, cultural and institutional. the ongoing oppression is unrecognized because so many fail to identify the problematic attitudes towards people with disabilities[footnoteref:38] and the ways in which we are socialized to accept ableism.[footnoteref:39] gent identifies five ways in which ableism underrides attitudes towards people with disability, ultimately leading to oppression: that people with disabilities have a poor quality of life because of their disability such that it would be better if they did not live; that people with disabilities need to be cured or at the very least repaired; that disability equates to a continued state of child-like innocence and/or that the inspirational nature in the way that people with disabilities overcome makes them worthy to participate in society.[footnoteref:40] each of these beliefs perpetuates an ongoing understanding that disability is not within us but exists as something outside ourselves. we fail to recognize our own limitations and spectrum of abilities and fail to appreciate that ability is a temporary state. ableism is problematic and damaging to everyone regardless of ability/disability. [38: gent, supra note 32.] [39: campbell, supra note 33.] [40: gent, supra note 32.] gent argues that the privileging of the normative body is so pervasive that it is not even recognized.[footnoteref:41] evidence of this ignorance is found in the literature that identifies disability as a framework for discussion but does so in a troublesome way. in “service-learning is for everybody”, for example, author robert shumer notes that the participation of students with disabilities as learners in programs is significantly less than the participation of people with disabilities as recipients.[footnoteref:42] he provides no real analysis as to why an imbalance exists, other than to suggest that some programs found it difficult to adapt the placement to meet the needs of the disabled student. neglecting to unpack the lack of participation of students with disabilities risks validating dewey’s “mis-education” concerns explained above. students and faculty must be aware of the self-selection that takes place even before the formal application process for service-learning programs begins. only once an appreciation of these issues is had, can the conversation of participation be useful. later in this paper, consideration will be given to the self-selection that students engage in when deciding to participate or not to participate in a service-learning program. in addition to this issue, the imbalance in the number of recipients with disabilities vis-a-vis the dearth of students with disabilities reinforces ableist thought in design and implementation of service-learning programs. [41: id.] [42: robert shumer, service-learning is for everyone, 114 new directions for higher education 27 (2011).] we are not suggesting that faculty or institutions intentionally prevent participation. it is not obvious to those who participate in or design service-learning programs that ableism exists. such naïveté is possible in part because it happens as an unplanned consequence of so many other things – how disability is displayed, defined, described and ultimately how it is a problem to be fixed rather than another reality or to be celebrated. thus, disability is rarely considered when crafting or executing service-learning programs. the pervasive ableism leads to programs that are inaccessible to students with disabilities, sometimes despite the simplest of amendments that would render the program accessible. while ubiquitous ableism is problematic, the ways in which service-learning replicates the charity model of disability is even more concerning. as a way of conceptualizing disability, the charity model defines disability as a deficit in need of the generosity of the community to either cure or transform the disabled body through the use of technology or assistive devices or other forms of “aid”. it fails to recognize the complex, enriching and valuable lives of people with disabilities regardless of cures. a more thorough examination of the charity model, its impact and how it is replicated in service-learning adds another layer to gent’s theory of ableism. as long as service-learning replicates the charity model, people with disabilities should be cautious in participating in such programs. that caution should apply to people who do not identify as disabled for different and overlapping reasons. disability has, until quite recently through the emergence of the social model of disability, been framed by those without a disability in a manner that focused solely on the individual as problematic. the impaired body is a flawed body and one that is in search of a cure.[footnoteref:43] there is no distinction between impairment and disability. the charity model of disability continues to locate the impairment within the individual where, [43: d. hevey, the creatures time forgot: photography and disability imagery (1992). ] (t)he ideology of cure and the mandate for normalcy intertwine, crowding out any possible narrative of accommodating rather than eliminating disability.[footnoteref:44] [44: r. garland‐thomson, feminist disability studies: a review essay, 30(2) signs 1557 (2005).] the charity model insists on a particular narrative of exclusion as the impaired body fails to conform to a society that values the commodity of labour.[footnoteref:45] the charity model allows society to find a place for the disabled, but not as full participants in society. instead, the disabled by virtue of a tragedy, whether by birth or accident, are otherwise excluded in the normal world order. [45: hevey, supra note 43.] the charity model of disability has its roots within the medical model of disability. the prevailing characteristic of both is that the impaired body is a flawed body in search of a cure. the lack of participation in society is a fault of the disabled person whose body is a sight of the failed normal. a mythology is created of the suffering and tragic “half person”[footnoteref:46] who has no life (or not a life worth living) and who cannot easily participate in society. the lack of participation rests solely on the disabled individual whose body does not comply. these “occasions of ideology”[footnoteref:47] homogenize the disabled body as one, regardless of the scope, nature or impact of the disability. [46: m. russell, beyond ramps: disability at the end of the social contract 85 (1998). ] [47: b.a. haller, representing disability in an ableist world: essays on mass media 137 (2010). ] the issue of identity under the charity model of disability is one of perception. the disabled person is perceived as inactive and passive, the recipient of whatever benevolent services are bestowed upon them. disability is continually imaged, both verbally and visually, as pathetic and in need of being cured or at least transformed. within that attitude is a view that there is nothing of value within the disabled body, that the experience of the disabled body is inherently negative rather than different, and that frustration ensues because the disabled body will simply not cooperate and be normal. within that inactive and passive body also lies a helpless one, which is another trope, embedded within the charity model – the innocent child. there is an incorrect assumption made that assumes a connection between requiring assistance (especially with the most intimate tasks) and a person’s maturity or adult status.[footnoteref:48] to be clear, we are not suggesting that services or technological/assistive devices are not useful for people with certain disabilities. these, however, should not be viewed as the solution or cure of disability or that the need and use of assistance renders the person less capable. [48: for a historical analysis of the charity model and its origins see h. stiker, a history of disability (1999).] inherent in the charity model is the existence of distinct roles for those who are determined disabled and those who are not. this is problematic because the distinction between these two conceptions is not easy to delineate; the determination of who is, or is not, disabled is a false dichotomy that fails to identify the spectrum of the body and the transitory nature of some disabilities. the social model of disability, while not without its own flaws, distinguishes between what is socially created or constructed (disability) and impairment which “is simply a bodily state, characterized by the absence or altered physiology, which defines the physicality of certain people”.[footnoteref:49] the distinction between abled and disabled does not acknowledge that all bodies are abled as, even individuals with a disability, are living and breathing beings. the distinction is really about capacity – something to which everyone can relate.[footnoteref:50] the focus on a cure or transformative technology “reduces the tolerance for variable bodies”.[footnoteref:51] [49: brendan gleeson, geographies of disability 52 (1999). ] [50: c. champman, disablism or ableism (2011), available at http://comradshaw.wordpress.com/2011/09/12/disablism-or-ableism-a-piece-by-chris-champman/.] [51: r. garland-thomson, integrating disability; transforming feminist theory, in feminist disability studies 18 (kim q. hall ed., 2011). ] the charity model and the medical model upon which it is predicated, set up an ongoing struggle for people with disabilities to fight against the reality of their own bodies.[footnoteref:52] in addition, the charity model creates a relationship of dependency that is one-sided and unrealistic. to assume that, with or without disability, there are no reciprocal independent/dependent relationships is misleading and untrue. it fails to recognize and even devalues the assistance we provide each other on an ongoing basis in order to meet the demands of living irrespective of disability.[footnoteref:53] [52: r. drake, charities, authority and disabled people: a qualitative study, 11(1) disability and society 5 (1996).] [53: m. macgregor, citizenship in name only: constructing meaningful citizenship through a recalibration of the values attached to waged labour, 32(3) disabilities studies quarterly (2012).] service-learning often perpetuates what is problematic with the charity model.[footnoteref:54] at the first level, service-learning has individuals with high cultural capital volunteer for the benefit of people with low cultural capital. the concept of cultural capital, first introduced by pierre bourdieu, is a useful framework to discuss the inequality within the service-learning setting.[footnoteref:55] butin offers an important critique of service-learning in which he questions the relationship between the individual students with “high cultural capital” who in the context of an academic setting undertake activities “for the sake of individuals with low social capital”.[footnoteref:56] in service-learning, individuals with high cultural capital volunteer for the sake and benefit of people with disabilities, who are deemed to be of low social capital. both are about doing good for others, rather than with others, and the goal is not social change but rather such individual acts of kindness are aimed to bring about individual satisfaction for both the learner and the recipient.[footnoteref:57] framing service-learning in this way is problematic as it marginalizes students and recipients with disabilities in a way that perpetuates ableism. how do students with disabilities fit into a model that is predicated on the notion of the abled helping the disabled? this narrative must shift if universal accessibility is sought. [54: butin, supra note 15. ] [55: pierre bourdieu, the forms of capital, in handbook of theory and research for the sociology of education 241 (j. richardson ed., 1986). ] [56: butin, supra note 15 at 6.] [57: drake, supra note 52.] clinical programs and disability: program selection, implementation and assessment the preceding sections have articulated the theory behind experiential education, narrowing in on service-learning, and have shed light on some significant barriers faced by students with disabilities. the pervasive ableism promulgated by the charity model of disability has been problematized. with all this in mind, we now begin the search for a solution. the remainder of the paper will turn to prescriptions about what can be done to ameliorate service-learning programs and create a more universally accessible learning environment for all students. there is no easy solution to the complex problems we have described. however, shifting the lens of service-learning programs to one of universal design begins this process. universal design refers to a broad spectrum of ideas meant to create spaces and programs that are inherently accessible for individuals with and without disabilities. it recognizes both the ubiquity and range of disability in the population and respects the range of comfort with disclosure of disability existent in the community. universal design must be applied to program selection, program implementation and program assessment. each of these will now be discussed. program selection the theory of universal design requires that disability be considered, by both students and faculty, from the inception of a service-learning program. even before students are admitted to programs, disability considerations are integral. indeed, one must contemplate that some students are self-selecting out of service-learning programs because they have a perception, real or imagined, that their disability will not be accommodated. at the program selection stage, there are various issues. is the selection process itself accessible? are program directors clear on their expectations of students such that students can make an informed decision about what can work for them? do particular programs have requirements that bar certain students from participating? this section will consider these issues. (a) inform students about accessibility before the admission process begins anderson and wylie suggest that clinical faculty should disseminate information about access to accommodation.[footnoteref:58] we agree with this suggestion and expand it to suggest that providing such information once students are accepted to a program is too late. clinical faculty must find a venue for such information sharing before program selection takes place. as noted above, we are concerned about the number of students who erroneously self-select out of service-learning programs because of a dearth of information regarding potential accommodations. however, students should have a clear understanding of what programs entail so that they may be able to make the right choices for themselves. students vary in their willingness to disclose the existence and extent of their disabilities, so a fulsome approach to information sharing about program expectations should be taken from the outset. it must be recognized that some students may also be unaware of a disability until well into a service-learning program or may develop a new disability that was not existent upon program selection. [58: anderson, supra note 37 at 43.] we must be mindful that not all programs are able to provide settings that are accessible to all students. funding and physical access limitations make it unrealistic to maintain such an expectation. as mcchesney found in his study, one survey participant stated that he had wanted to obtain a position in his law school’s community legal aid clinic. he was asked to withdraw his application, however, because of his visual disability. most of the files and resources at the law clinic were not in a format accessible to him. a clinic participant at another law school, who has a learning disability, stated that he faced barriers in contributing to the school’s law clinic, where accommodations or adjustments were not offered for his disability.[footnoteref:59] [59: mcchesney, supra note 25 at 51.] if indeed effort is made to accommodate students with disabilities in service-learning programs, this information must be shared very early on, before students can discount themselves as not able to participate. integral to this initial information is sharing with students the essential role of service-learning programs in assisting students to bridge the gap between academic and practice settings. (b) consider the varying levels of disclosure a significant encumbrance on the ability for program faculty to accurately characterize the accessibility of their program for particular students is the fact that a number of students elect not to disclose the existence or nature of a disability. why do some students choose not to disclose a disability? this is a difficult question to answer, as the reasons are deep and diverse. a consequence of the charity model, and how it describes and defines disability, is the inevitable reluctance to be identified as disabled. the decision of whether to be identified in this way or not bears significantly on student selection in clinical programs and thus bears consideration here. some students might choose not to be labeled disabled, if at all possible, to avoid the negative associations of either being a body in search of a cure, a helpless person or a “supercrip” who can overcome any obstacle. none of those descriptors sound appealing and cannot possibly apply in some kind of uniform fashion. if a student chooses to “hide” or “pass” as not disabled, which is distinctively different from choosing not to disclose, it is more difficult to challenge the ableist narrative and assumptions that are guiding the learning within the classroom and the underlying reasons the student has chosen to hide. there is a troublesome dialogue around privacy and disclosure. we do not advocate for a process in which every student must disclose their disability, but we should start examining the role privacy plays in how and why students choose to disclose their disability or not. there is a lot of weight given to the student’s right to privacy and we question whether there is an underlying agenda that is cloaked in the language of privacy. the main reason to not disclose, presumably but not exclusively, is to avoid the stigmas and assumptions embedded and hidden within disability. students may fear, for example, that disclosure of a disability will lead faculty members to question their ability to practice in a law firm setting, hence impacting much coveted reference letters and grades. what needs to be acknowledged and addressed is the underlying reasons why the student doesn’t want to disclose a disability rather than exclusively the student’s right not to disclose. when a significant reason to not disclose is to avoid stigma and negative assumptions then we do a disservice when we don’t examine further how and why those assumptions exist. a subtle, but powerful, message is sent when students’ fears about the ramifications of disclosure are met with promises of privacy and anonymity rather than fulsome and widespread effort to address the underlying fears. the other side of non-disclosure is the right to choose from the number of personal identities that seem important to each individual. identifying as a person with a disability may not seem important within the context. multiple identifiers such as sister/mother/friend/ally/student exist within all of us and at different times we may want to choose which identifier is the most appropriate, rather than having it chosen for us. students with disabilities often ask how, when and if they should disclose their disability to potential employers. worried about a narrow job market post graduation there is some evidence that students with disabilities (as well as mature and/or racialized students) are more likely to enter the third year of law school without a secured position[footnoteref:60], students with disabilities, who have a choice as to whether to disclose, are rightly concerned about disclosure.[footnoteref:61] these concerns translate into a student’s concern about being admitted to a program within a clinical setting. clinical programs have the potential to assist students in making the decision to disclose or not to disclose in an employment environment, by simulating these environments in a less pressured, more supportive, setting. the provision of a summary that describes the efforts made to provide an accessible program, along with the follow through by program faculty during the program selection process, help to make students comfortable with disclosure and/or with throwing their hat in the ring for a position in the program. [60: law society of upper canada, pathways to the profession: a roadmap for the reform of lawyering licensing in ontario (2012), available at http://www.lsuc.on.ca/workarea/downloadasset.aspx?id=2147489848. ] [61: the process of articling creates a mentor relationship between the graduated law student and a practicing member of the bar. the process of finding an articling position traditionally takes place during the summer between second and third year with at least some portion of students starting their third year with a secured position that will start shortly after graduation and last for approximately one year. normally these positions are paid but, most importantly, being articled for a year is a requirement to being licensed to practice law. ] while students cannot be forced to disclose, it is helpful for them to understand the beneficial impact of disclosure. a participant in pardo and tomlinson’s study explained, students must be encouraged to disclose at the earliest possible time in order to facilitate the restructuring of the clinical setting...faculty and staff need to be better educated around the needs of students with disabilities and academic accommodations coupled with a clear understanding of the essential competencies and skills to be mastered.[footnoteref:62] [62: patricia pardo & debra tomlinson, implementing academic accommodation in field/practicum settings 40 (2000) [hereinafter pardo].] without disclosure, it is difficult to ensure that students are receiving the optimal accommodations right from the start. (c) create an accessible admission process even after a general statement of accessibility is included in material describing the service-learning program, faculty must ensure that whatever selection process is utilized is accessible. the authors both utilize interviews as the main selection criterion. interviews allow faculty the opportunity to acquaint themselves with students in a way that written applications and transcripts cannot. they also allow for a more fulsome discussion around possible accommodations that may be required. at the same time, though, interviews may themselves be inaccessible to students with both visible and non-visible disabilities. depending on the location and format of interviews, students with disabilities may be either invited or barred from participating. we suggest sending an invitation for students to participate in an interview, which includes a question about whether any accommodations are required. a sample of such an invitation can be found in appendix a. the effect of such an inquiry is to both make students feel welcomed to disclose and to practically develop a strategy for the interview. is a telephone interview more appropriate? should the room be set up in a certain way to accommodate the student? an accessible interview is the first step to an accessible program. these issues, however, are often overlooked. program implementation once students have selected a clinical program and have been admitted, the work begins to follow through on the promises made to create and ensure an inclusive and accessible setting. clinical programs have the potential to be of benefit to students with disabilities. the individualized attention given to clinical students and the smaller class sizes of clinical seminars help ensure that relationships are established with both faculty and peers and that accessibility can be assured. the sad reality, however, as stated in the previous section, is that students sometimes do not reveal their disabilities. even more unfortunate is the frequent occurrence experienced by the authors, where students reveal their disabilities at the end of a program, once a high level of trust has been built with program faculty. research has been conducted on the intimate relationship that students share with clinical faculty.[footnoteref:63] the intimacy between students and faculty in clinical programs is different from that of other law school classes. students spend a considerable amount of time with faculty in service-learning programs and share personal and self-growth experiences with them. these relationships present ideal ground to assist all students in self-discovery and advocacy. [63: kathleen a. sullivan, self-disclosure, separation, and students: intimacy in the clinical relationship, 27 indiana law review 115 (1993).] because it takes time to build such relationships, program directors unfortunately often learn about a disability only when a crisis occurs or once it is too late to provide the appropriate accommodations. this section will discuss the implementation of service-learning clinical programs through universal design, along with the importance and risk of partnerships within such programs. (a) ensure accessibility in the daily operation of the service-learning program it seems obvious that student clinical settings should be accessible to the students for whom the clinics were created to teach. despite the blatancy of this statement, the goal of accessible workspaces is not often being maintained. even within environments in which the faculty members are especially sensitive to the importance of accommodating disability on a universal design basis, barriers remain. this section will outline one particular example of the ways in which clinical settings can impede the active participation of students with disabilities. it will also explain the principle of universal design to explain how one may approach the creation of an accessible program. recently the law school, in which the clinics the authors direct are situated, underwent a major renovation. the result was a brand new clinical space that has enough space for students to work, replete with interview rooms and group meeting spaces. a separate entrance was created to ensure clients were spared wandering through the law school in search of the free legal clinic that would both single out their poverty as well as which side of the law they found themselves on. for all its great design, the reception desk, which is where the volunteer students provide intake services, is completely inaccessible to any student with a mobility disability. university settings are complex, and at times unwieldy, organizations that take a long time to respond – all too often, in a reactive rather than proactive manner. over the next two years the reception desk became a source of discussion and frustration. the desk itself has a high counter that runs parallel to a set of windows with a seating area behind and in between the counter and the windows. a further building design created a foot high and foot wide ledge along the base of the window. consequently the space between the seating area and the window ledge is barely enough to fit a chair. at any given time there are four students that volunteer to answer the incoming calls, determine eligibility for those seeking services and provide comprehensive referrals for those the clinic cannot assist. sitting in a long row made exiting the area difficult and required students to walk along the window ledge while the other students squeezed their chairs in as close as possible. in addition, the volunteer students are supervised by a senior credit student to ensure that they are providing the correct information. the reception desk area design made it impossible for the supervisor to work alongside the volunteers to ensure that they were completing the information in the database correctly and ultimately they ended up supervising from the seating area. the overall effect was poor supervision, a physical environment that is impossible to navigate for students with disabilities as well as inaccessible to both those students and potential clients with disabilities. what are we teaching, and more importantly what is being absorbed, about accommodation of disability in such a setting? ultimately these lessons are not the ideal ones to convey. despite repeated complaints, the university remained unmoved, likely because this issue was deemed inconsequential – there were no students with disabilities volunteering or in the credit program. a hurried and less than satisfactory response was likely to come only when the student (volunteer or otherwise) with a mobility disability could be presented – everyone likes a poster child! however, this approach negates the deterrence that the space may create for students who may have wanted to volunteer for the clinic or to accept a credit position. as was supposed in the previous section, they simply may not apply for the program because they see that it would not work for them.[footnoteref:64] [64: unfortunately, the accessibility of ontarians with disabilities act, and more specifically the design of public spaces standard, only applies to newly constructed or renovated spaces begun after january 1, 2016 for institutions such as york university. (aoda integrated accessibility standards, ont. regulations 191/11 and personal communication with monica ackermann, accessibility consultant on september 2, 2013). ] recently the reception/volunteer space was reconfigured and the process for the provision of initial intake services was reviewed. the result is a volunteer space that is accessible, better maintains client confidentiality and projects a professional image of the clinic to those entering the clinic. the budgetary constraints remained the same, university permission to redesign the space has still not been granted but a solution was arrived at. the point in detailing this situation is to highlight that the impact of ableism has prevented researchers from a close examination of the intersection of disability in service-learning programs. flowing from that is the necessity for critical investigation in how the tensions found in waged labour environments for people with disabilities are recreated in what is intended to be educational programs. the situation described a physical barrier for students with mobility disabilities. such barriers can be seen, even if only once it is too late to change readily. what about those barriers that cannot be seen? when and how do we address such impediments to education? the answer lies in the theory of universal design. creative teaching strategies must be used to ensure that each student in a service-learning environment receives an accessible education. clinics should offer a variety of work spaces from which students can select. a combination of quiet and communal work spaces would allow students to experiment with what works best for them. this educative process will help both during and after the service-learning program. buhai suggests other accommodations that can be of assistance.[footnoteref:65] she suggests, for instance, the option of giving students extra time or smaller, less time-sensitive projects.[footnoteref:66] she also suggests client questionnaires in lieu of client interviews where such interviews do not meet the accommodation needs of students.[footnoteref:67] however, such accommodations do not always service the needs of clients, a limitation that buhai acknowledges.[footnoteref:68] client realities cannot be ignored. deadlines are real and cannot be set aside in favour of a different pedagogical aim. clinic faculty must consider the myriad of people affected both positively and negatively by any accommodation plan. [65: buhai, supra note 4.] [66: id. ] [67: id.] [68: id. ] using student teams can be an effective way of supporting students through universal design. the strengths of one student can often support the accommodation needs of another and vice versa. supervision here is critical, however, to ensure that team dynamics are operating in an effective way. no student should have to shoulder burden because of another unless the reciprocal is true as well. (b) work with community partners to ensure accessibility the examination of partnerships is important for the ongoing discussion of disability within service-learning programs. many service-learning programs rely on partners outside of the law school to provide a rich learning experience for students. the addition of external agencies and individuals, while useful and enriching in many ways, imputes an added layer of complexity to the discussion of disability. as has been stated throughout the paper, ableism pervades the social and professional world in which these programs reside. there are essential questions to be asked as a way of observing and challenging how ableism is created and maintained. these questions are not separate nor can they be separated from the academic component of service-learning. organizations that perpetuate abelism are fundamentally flawed, reinforce prevalent views on disability that neither challenge students nor improve civic responsibility and thus go to the very core of “mis-education” against which dewey warned. partners must be carefully selected and monitored. in examining service-learning partners, we should consider the role that people with disabilities play in the organization that is the recipient of service. this is especially important if the partner organization’s goals are in any way disability related. do people with disabilities work at the organization in paid positions, and at what level? if an organization that purports to assist people with disabilities does not have people with disabilities in decision-making and management positions this reinforces the hegemony of who is capable and who has knowledge and decision-making abilities. people with disabilities have been denied the ability to articulate needs related to service delivery on a mistaken belief that they are incapable of understanding and expressing their own or collective needs. if students are brought into these work environments, such flawed messages should not be conveyed. however, a related concern arises when placements are chosen specifically to accommodate students with disabilities. reeser notes that there are a limited number of architecturally accessible partner agencies and a shortage of disability-awareness training for agency staff, resulting in reduced placement options for students with disabilities.[footnoteref:69] in order to meet accessibility needs, then, students are often placed with disability-serving agencies even when this is not the student’s area of choice or interest.[footnoteref:70] once again, the message is not one of inclusivity and accessibility. [69: l.c. reeser, students with disabilities in practicum: what is reasonable accommodation, 28 journal of social work education 98 (1992).] [70: id. ] program assessment the third area that this paper will address concerns the assessment of service-learning experiential programs. assessment is yet another area in which students with disabilities can stand at a disadvantage in clinical programs. this need not be the case. indeed, for some students, clinical programs are ideally suited to assess their skills in ways that traditional law school classes cannot. for others, however, this is not the case. this section will consider the types of accommodations that may be useful in grading service learning programs and will outline the issue with typical accommodations allowable through typical academic channels. as buhai noted long ago, the skills required in a clinical setting are different from those required in a pure academic setting.[footnoteref:71] if indeed the skills required are different, the assessment mechanisms must be equally different. often, suggestions for accommodation for evaluations that are available in the typical academic class are of little utility in a clinical setting (i.e. extra time for test taking, preferential seating, note-taking scribes, audio recordings of lectures). in pardo and tomlinson’s study, 50% of respondents identified difficulties implementing academic accommodations in a field or practicum setting.[footnoteref:72] [71: buhai, supra note 4.] [72: pardo, supra note 62 at 41.] clinical faculty must recall their essential dual role: they must assess students fairly and they must assist students to prepare for a legal career that will impact on or be affected by their disabilities. faculty should discuss strategies with each of their students, irrespective of disability. particularly for students with disclosed disabilities, extra care should be taken in addressing particular challenges faced by the students and how these may be remedied in practice. the clinical placement is an opportunity for students to set their professional paths in motion. how is one to grade such development? what risks will students avoid if they know they are being graded? what opportunities for growth will be lost? anderson and wylie, in their case study research of non-visible disabilities in legal clinics, suggest the importance of determining essential and non-essential components of a clinic.[footnoteref:73] they state, “if a clinic narrowly defines its essential functions and continually revises that list to reflect current experiences of all its students, then students...may well be able to be accommodated”.[footnoteref:74] essential functions should be assessed and insisted upon, while non-essential functions may be better waived or altered in certain circumstances. as explained by helms and helms, “students with disabilities must be able to perform the essential tasks of his/her profession in a competent manner with reasonable accommodation in order to be eligible for a field placement”.[footnoteref:75] the key is in determining what the specific essential tasks are for the individual service-learning programs. [73: anderson, supra note 37.] [74: id. at 40.] [75: l.b helms & c. helms, medical education and disability discrimination: the law and future implications, 69 academic medicine 535 (1994).] patricia pardo and debra tomlinson also offer suggestions for applying accommodation plans in clinical settings.[footnoteref:76] specifically, the report suggests the need for a realistic appraisal of students’ learning needs before the commencement of the practicum; the need to review evaluation procedures with the student before the clinical placement; the need for discussion and review of accommodation requests before the placement; the need for clarity regarding disclosure of the student’s disability amongst administration, clinical faculty, and placement staff; the need for the development of institutional protocols to review student requests for clinical accommodations.[footnoteref:77] these requirements are certainly necessary in legal service-learning programs as well. [76: pardo, supra note 62. ] [77: id. at 52-53.] detailed mid-term evaluations can be a vital source for students in helping them develop as lawyers and as individuals. such mid-term evaluations open the door to initiate discussions of possible accommodations where a student may be struggling to meet expectations. conclusion this paper has begun to combine theoretical considerations of disability with practical strategies for service-learning programs that take into account students with disabilities. the suggestions offered herein do not negate and indeed encourage the need for clinical faculty to attend training programs, which focus on teaching students with disabilities. in addition, faculty should share their own experiences with accommodations that proved successful or unsuccessful in an attempt to increase the body of knowledge in the area. our hope is that, by increasing dialogue in this area, students with disabilities will feel more comfortable embarking on service-learning programs that can help them set a career path in motion. appendix a sample interview invitation hello, thank-you for applying to the clasp clinical intensive program. below i have outlined the interview sign up process and what to expect at the interview. interviews will take place on at various times throughout the day. sign up process when: how: in person: (from 9am to 4pm) come to the clasp offices (you can send someone on your behalf) or by phone:(from 9am to 4pm) the interview what to expect here at clasp we endeavour to meet with every student who expresses interest in the program. each applicant will meet with the clasp team (clinic director, review counsel, community outreach counsellor and a student board member. during the interview we will ask you a series of questions about your interest in the program and the work we do at clasp. you will have an opportunity to ask questions about the program, the work and academic program. the interviews are approximately 15 minutes in length. we will have copies of your statement of interest and resume. if you require any accommodations for the interviews please do not hesitate to contact me directly and together we will ensure an accessible interview process. i can best be reached by email at thank you very much for your interest in the program and i look forward to meeting with you next week. 1 the case for clinical scholarship frank s. bloch* introduction there is an inherent tension in legal education between its academic and professional missions, sometimes characterised as a conflict between theory and practice. a theory-practice tension is not unique to legal education, of course; often in professional education there are deep differences of opinion concerning the relative importance of academic inquiry and research, on the one hand, and practical training and service delivery, on the other.1 this tension is especially salient with respect to modern legal education, however, because the recent advent of clinical legal education presents the legal academy with a unique opportunity to cut across these traditional lines of conflict. lines between theory and practice have been blurred considerably in law teaching already, with the spreading influence of clinical legal education around the world.2 in this article, i address the implications of this trend on legal scholarship – the aspect of legal academia where theory-practice tensions tend to be strongest. following a brief discussion of clinical education’s still uncertain place in the legal academy, i turn to the role of legal scholarship and the potential contributions of clinical education to legal academic literature. rejecting the strongest criticisms voiced by some clinicians to the effect that scholarship adds little or no value to the primary mission of legal education, which is the training of future lawyers, i explore the many facets of an emerging “clinical scholarship” informed by clinical practice. i also reject the notion that scholarship is less important for clinicians than for other law faculty, by making the case that clinical scholarship the case for clinical scholarship 7 * professor of law, vanderbilt university law school (usa). this article is based on a paper presented by the author at the first international journal of clinical legal education conference, held at the institute of advanced legal studies, university of london in june–july 2003. 1 medical education is a prime non-law example. see lelia b. helms, charles m. helms, selden e. biggs, litigation in medical education: retrospect and prospect, 11 j. contemp. health l. & pol’y 317, 320 (1995) (discussing the “complex interdependence of medical education, research, and patient care activities” as “one of the hallmarks of academic medicine”); abraham flexner, medical education in the united states and canada (carnegie found. bull. no. 4, new york, 1910). another is the field of education. see generally leo s. shulman, theory, practice, and the education of professionals, 98 elementary sch. 511 (1998). see also donald a. schon, educating the reflective legal practitioner, 2 clinical l. rev. 231, 233 (1995) (discussing the distinction between the theory of the classroom and the reality of practice in professional education, particularly legal education). 2 the very existence of this journal is an indication of clinical education’s increasing international influence. texts on clinical law teaching around the world offer further support. see, e.g., gary bellow & bea moulton, the lawyering process: materials for clinical instruction in advocacy (1978) (united states) (hereinafter the lawyering process); marlene le brun & richard johnson, the quiet (r)evolution: improving student learning in law (1994) (australia and canada); clinical legal education (n.r. madhava menon, ed. 1998) (india). strengthens clinical legal education by helping advance its two main goals of improving the quality of law practice and enhancing the public role of the profession. as a clinical law teacher based in the united states, my approach to these issues naturally reflects developments in my home country – and much of what i say in this article comes from that perspective.3 there are, however, many common points of reference among clinical law teachers around the world on most of the basic tenets of clinical legal education. moreover, clinical education is still a “work in progress,” even in those countries where it is most firmly established. as a result, there is much to be learned across national and regional lines. indeed, wide differences in what is meant by clinical legal education around the world and wide variation in the extent to which it has gained a role in legal education help make the case for clinical scholarship worldwide. as neil gold said in the inaugural issue of this journal, clinical legal education “knows no jurisdictional boundaries, nor is it culturally limited in its application... an international journal promotes the study of and reflections on [clinical legal education] in a comparative or crossjurisdictional way.”4 clinical education and the legal academy in its most basic form, clinical legal education has two complementary aims: promoting professional skills training, thereby improving the quality of law practice; and supporting law school involvement in public service, thereby raising standards of lawyer professional and public responsibility. typically, clinical programs engage law students in experiential learning of various lawyering skills and values through active participation in some type of public service activity, such as a legal aid clinic. to those unfamiliar with legal education, this must seem anything but revolutionary. of course law schools should direct some of their resources to training law students how to become lawyers – and to appreciate personally the public role of the profession they are about to enter. but clinical legal education has faced barriers to entry into the legal academy, to one degree or another, throughout the world. until relatively recently most lawyers in the united states and other former british colonies were trained in the distinctively non-academic settings of law offices and chambers.5 nonetheless, ever since lawyer training – and perhaps more importantly, law teachers – moved to the world of academia, university-based law faculty have tended to orient the law school curriculum and their broader institutional agendas more toward academics and theory than professionalism and practice. an important example from the united states of this academic orientation of law study is the famous langdellian revolution at harvard law school in the 1850s – and its survival to an astonishing degree up to the present. at the heart of christopher columbus langdell’s case 8 journal of clinical legal education july 2004 3 i have the benefit, however, of having worked for many years with clinical colleagues in india. for some insights i have gained from that experience, see frank s. bloch & iqbal s. ishar, legal aid, public service and clinical legal education: future directions from india and the united states, 12 mich. j. int’l l. 92 (1990). 4 neil gold, why not an international journal of clinical legal education?, 1 intl’l j. clinical l. educ. 7, 12 (2000). 5 see nickolas j. james, a brief history of critique in australian legal education, 24 melb. u. l. rev. 965, 966 (2000) (“until the latter half of the 19th century aspiring lawyers in australia were trained by more experienced practitioners in accordance with the apprenticeship model imported from england.”); john e. douglass, between pettifoggers and professionals: pleaders and practitioners and the beginnings of the legal profession in colonial maryland, 39 am. j. legal hist. 359, 384 (1995) (noting that colonial lawyers were trained in lawyers’ chambers and that “it was out of lawyers’ chambers that america’s early law schools developed.”). method of instruction was his belief in the primacy of the law and in the ability to deduce law from given hypothetical facts. legal education was to focus on case law, from which legal principles could be found and understood; law teachers following this approach do not concede, and therefore do not address in any way, other realities that might influence how law and legal rules develop.6 hailed at the time as a scientific approach to the law, the case method of law teaching resulted in a domination of textbook and classroom legal education with a top-down view of the law.7 the concentration of virtually all instruction and scholarship on doctrine as developed by appellate courts led in turn to an academic perspective on law that was largely removed from the real world of law practice. as a practical matter, it pushed any interest in law practice so far into the background that the idea of practical training seemed out of place in law school – except, perhaps, via a moot court appellate argument. the outlet for legal education was a “law” school, not a “lawyer” school.8 this does not mean to say that us law schools had abandoned the profession completely. on the contrary; law schools in the united states have always been, above all, professional schools. unlike some other countries, where law studies often represent a choice of discipline for one’s higher education rather than a commitment to enter the legal profession,9 virtually all us law students go to law school after four years at university specifically in order to qualify for the bar examination and, ultimately, to enter the practice of law. quite pragmatically and regardless of the academic and theoretical orientation of their faculties, all us law schools have always offered, and will continue to offer, a core curriculum designed to fulfil that goal. indeed, the case method and the focus on doctrine in legal scholarship that went with it had strong, albeit narrowly limited, professional training roots.10 as judge (formerly professor) richard posner has observed: “it used to be that law professors were in the university but of the legal profession... the job of the professor was to produce knowledge useful to practitioners. to be useful it had to have a credible source and to be packaged in a form the practitioner could use. the source was the law professor viewed as a superior lawyer.”11 whether simply an accommodation to its new academic setting or a sign of its insecurity in the academy, legal education in the united states moved more-or-less steadily away from its preparation-for-practice roots through the mid-twentieth century. the medium of instruction for the case for clinical scholarship 9 6 see generally, dennis patterson, langdell’s legacy, 90 nw. u. l. rev. 196 (1995). 7 as one commentator noted recently, “modern critics have pointed out that langdell ignored the realities of the law, that by limiting his focus to the few general principles found in selected cases, he squeezed law into a few preconceived and artificial categories. in addition, the case method vastly overemphasised the appellate courts’ importance in the legal system.” alexander scherr, lawyer and decisions: a model of practical judgment, 47 vill. l. rev. 161, 167 n.18 (2002). 8 this point was captured in the title of perhaps the most famous early article championing clinical education: jerome frank, why not a clinical lawyer-school?, 81 u. pa. l. rev. 907 (1933). in a stunning critique of langdell and his case method, frank observed: “the lawyer-client relation, the numerous non-rational factors involved in persuasion of a judge at a trial, the face-toface appeals to the emotions of juries, the elements that go to make up what is loosely known as the ‘atmosphere’ of a case – everything that is undisclosed in judicial opinions – was virtually unknown (and was therefore meaningless) to langdell. a great part of the realities of the life of the average lawyer was unreal to him.” id. at 908. 9 india is an example of a country where many law students have no intention whatsoever to practice law. 10 indeed, some practice-oriented critics of current highly interdisciplinary legal scholarship yearn for a return to the “good old days” of more accessible (and practicerelevant) doctrinal writing. see note 51 infra. 11 richard a. posner, overcoming law 82–83 (1995). reaching legal education’s professional training goal had become, to the point of near exclusivity, appellate court opinions and scholarship that analysed those opinions. the effect of this was not lost on the legal profession; among the reasons put forward for written codes of professional ethics in the early 1900s was “an acknowledgement of a changed legal profession, a profession with far more lawyers, differing in class and educational background, and trained in the law through law school instead of apprenticeships.”12 a return to some practice focus in us legal education came with the strong growth of clinical education in the mid-1960s and early-1970s, when a number of reports were issued by the american bar association, the association of american law schools, and independent academics on the tension between theory and practice in legal education – most of which criticised law schools for failing to address this problem adequately.13 law schools began to pick up on the idea that the curriculum could benefit from some instruction in the actual work of lawyer.14 this recognition did not surface on its own, however. the clinical education movement came out of a push at that time for a greater focus on professional responsibility and public interest practice, more so than skills instruction.15 virtually all of the new or expanded clinical programs that developed in the united states during those years operated out of some form of legal aid office, typically with interrelated goals of providing legal representation to the community and increasing student awareness of their public responsibilities as lawyers.16 thus, the single most important catalyst for modern us clinical legal education was the not haphazardly named ford foundationfunded council on legal education for professional responsibility (clepr), whose president, william pincus, observed that clinical programs and law students who participate in those programs would help “society provide more and better legal services to those who need them.”17 not surprisingly, clinical education has met substantial resistance from traditional legal educators along the way. opposition has come on virtually all fronts: over the granting of credit for clinical courses, in limiting the status of clinical faculty, and, most important for purposes of this paper, by means of a territorial dispute over scholarship. although each of these areas of conflict has its 10 journal of clinical legal education july 2004 12 james m. altman, considering the a.b.a.’s 1908 canons of ethics, 71 fordham l. rev. 2395, 2415 (2003). 13 see jean r. sternlight, symbiotic legal theory and legal practice: advocating a common sense jurisprudence of law and practical applications, 50 u. miami l. rev. 707, 723–25 (1996). 14 there were clinical programs in the us prior to this time, but they were few and far between. for descriptions of some important early programs, see john s. bradway, the beginning of the legal clinic of the university of southern california, 2 s. cal. l. rev. 252 (1929); john s. bradway, some distinctive features of a legal aid clinic course, 1 u. chi. l. rev. 469 (1934); alan merson, denver law students in court: the first sixtyfive years, in clinical education and the law school of the future 138 (univ. of chicago law sch. conference series no. 20, edmund w. kitch ed., 1970). 15 this was true not only in the united states, but in other countries as well. see, e.g., judith dickson, clinical legal education in the 21st century: still educating for service?, 1 intl’l j. clinical legal educ. 33, 33–34 (2000) (noting that clinical legal education developed in australia, as in the us, “primarily in response to an obvious lack of legal services for the poor” and that “[a] service ideal therefore underpinned the educational adventure”) (emphasis in the original). 16 the times had their effect on the traditional law school curriculum as well, and new classroom courses on law and poverty were offered at a number of schools in the late 1960s and early 1970s; however, interest in those courses began to wane after reaching a peak a few years later. examples of published teaching materials from that time include g. cooper, c. berger, p. dodyk, m. paulsen, p. schrag, and m. sovern, cases and materials on law and poverty (2d ed. 1973) and a. lafrance, m. schroeder, r. bennett & w. boyd, law of the poor (1973). none of the book published in the 1970s have survived, but a new text was published in 1997. see j. nice & l. trubek, cases and materials on poverty law (1997 & supp. 1999). 17 william pincus, a small proposal for a big change in legal education, 1970 u. tol. l. rev. 913, 916 (1970). own story to tell, i believe that the latter has been the most damaging in the long term because what lies behind the question whether scholarship belongs in clinical legal education goes deeper than protecting traditional faculty’s academic turf. depending on one’s view and the definition of key terms, clinical legal education represents, to one degree or another, the professional skills and public service dimensions of the curriculum. these are vital areas of study, with potentially profound implications for the legal profession and the administration of justice. if clinicians are kept outside the mainstream of academic scholarship, this important work is effectively sidelined outside the world of ideas. what makes clinical scholarship clinical? at one level, one could say that clinical scholarship is scholarship written by clinicians. apart from the circularity of the double use of the term “scholarship” that carries with it the ambiguity of the term itself,18 this approach is subject to the criticism that it downplays – indeed, effectively eliminates the idea that clinicians as clinicians have something unique to offer in their academic wiring. as peter hoffman noted in the inaugural issue of the clinical law review, “the mere fact that an article is written by a clinical teacher does not mean it is clinical scholarship.”19 thus, clinical scholarship must be something other than scholarship written by clinicians if the term is to have any meaning. and the term is, indeed, meaningful. the clinical movement has succeeded in broadening the scope of legal education in at least three ways adding serious skills instruction to the curriculum, creating centres for students and faculty to engage in public-oriented law practice, and (re)introducing experiential learning to the study of law and it is on these matters that clinical faculty can most productively concentrate their scholarship. clinicians should not let themselves be co-opted by an ailing and increasingly removed-from-practice form of legal scholarship;20 instead, they should take the offensive by putting the “clinical” back into “clinical scholarship” and then producing it in force. even with a specifically clinical-oriented clinical scholarship, there are substantial differences of opinion over what direction it should take. that debate tends to divide into two camps: one that urges clinicians to concentrate their scholarship on skills, a field that has become known as “lawyering”, and another that urges a concentration on law and social change. the arguments over whether clinical scholarship should have a predominantly skills or public interest orientation touch on the underlying values and purposes of clinical legal education. indeed, the contrasting views on this issue can be seen as a proxy for a debate over the heart and soul of the clinical movement when understood in the context of broader questions concerning the ultimate value of clinical scholarship. in addition to these more substantively focused lines of clinical scholarship, there is a third line that tracks the clinical movement’s contribution to legal education reform. this literature addresses issues relevant to the clinical movement and its future, particularly various the case for clinical scholarship 11 18 this question – what is scholarship? – has discussed and debated outside the clinical context forever. see, e.g., roger c. cramton, demystifying legal scholarship, 75 geo. l.j. 1, 8 (1986). 19 peter toll hoffman, clinical scholarship and skills training, 1 clin. l. rev. 93, 93 (1994). 20 john elson has made this point most strongly in an influential article published in 1989. see john s. elson, the case against legal scholarship or, if the professor must publish, must the profession perish?, 39 j. legal educ. 343 (1989) [hereinafter the case against legal scholarship]. see also john s. elson, why and how the practicing bar must rescue american legal education from the misguided priorities of american legal academia, 64 tenn. l. rev. 1135 (1997). elson’s views are discussed further infra at text accompanying notes 52–53. aspects of the clinical methodology. this is not really a third “camp” since virtually everyone in the clinical community agrees that writing about clinical education and clinical methods is “clinical” and this type of writing is strongly encouraged and widely read.21 the line is not always so clear, however, between writing about clinical teaching and writing about lawyering skills and/or the public role of the profession. except at perhaps the most technical level, one cannot divorce the clinical methodology from clinical legal education’s curricular and social objectives. understandably, the first flow of clinical scholarship in the 1970s and early 1980s dealt largely with clinical teaching and its educational value in the law school context. but already then, interest in explaining and developing the methodology was tied to a broader set of interests in professional skills and professional responsibility. this integration of method and substance is seen in the following description of what the authors describe as a “burgeoning” clinical scholarship at that time: by focusing on clinical education as a method, clinicians began to explore what clinical teachers were and should be doing, how clinical teaching methodology could be infused throughout the law school curriculum, and what the purposes and goals of clinical teaching should be. important early examples of clinical scholarship focused on clinical methodology, what it meant for students to assume and perform the lawyer’s role in the legal system, how to identify and teach the elements of various lawyering skills, how to develop and explain theories of lawyering, how to refine and improve the supervisory process, and how to incorporate experiential learning theory into clinical law teaching.22 the key to a meaningful definition of clinical scholarship lies in the uniqueness of the clinical approach to law teaching and the study of law. compared to traditional academics, clinical faculty has a far wider window on the legal world and their scholarship should take advantage of it for themselves, for the clinical movement, and for the larger legal community.23 as noted above and discussed in more detail in the next two sections, that scholarship may be about skills, public interest practice, or clinical legal education itself. what is important is that clinical legal educators take the initiative to claim their scholarship and direct it in a way that supports and advances the broader goals of the clinical movement. what is the defining subject matter: skills or public interest? when one looks at the clinical movement from a historical perspective to some extent from its earliest days, but certainly from the beginning of its modern era in the late 1960s and early 1970s the original “subject matter” of clinical legal education was essentially legal aid and public interest practice. as mentioned earlier, virtually all clinical legal education at the time took place in working legal aid clinics. the public side of lawyering was also emphasised in gary bellow’s and 12 journal of clinical legal education july 2004 21 this can be seen by a casual review of articles published in the clinically centred clinical law review and, before the review came into existence, among the articles written by clinicians that were published in the mainstream journal of legal education. 22 margaret martin barry, jon c. dubin, and peter a. joy, clinical education for the millennium: the third wave, 7 clinical l. rev. 1, 16–17 (2000). 23 see richard a. boswell, keeping the practice in clinical education and scholarship, 43 hastings l.j. 1187, 1193 (1992) (“as active practitioners within the academy, [clinicians] are uniquely able to contribute to legal education’s understanding of the outside world”). bea moulton’s seminal 1978 text for clinical courses, the lawyering process.24 although at one level a systematic treatment of what lawyers do in any type of practice the major tasks examined are interviewing, case preparation and investigation, negotiation, witness examination, oral argument and counselling. the book leads students to explore most fully the decision-making process of client representation and, in particular, how lawyers own subjectivity must integrate the complex social and political dimensions of their role.25 as alex hurder has observed, “[t]he common thread running through [the materials in the book] is that the choices lawyers make cannot be isolated from their understanding of the legal system and its fundamental values.”26 clinician have and will continue to write about public interest and social justice, consistent with the central role that these matters have held in clinical education from the beginning.27 this will be the case not only because of clinician’s interest in and dedication to the public role of lawyers, but also because such work is central to the teaching and professional goals of the clinical movement.28 of course, future clinical scholarship along these lines will reflect current circumstances in the profession and the academy. thus, as the first co-editors of the clinical law review noted in their forward to the inaugural issue of the journal: “most of us probably would also agree that one goal of clinical teaching is to foster, and to carry on, legal practice in the public interest. but our understanding of this goal is changing, and so is our understanding of the means by which it might be achieved.”29 some have felt recently that a more deliberate skills orientation is needed in clinical scholarship. peter hoffman, a leading proponent of skills-focused clinical scholarship, finds that there is relatively little scholarship devoted to skills written by clinicians because “skills training appears no longer to be a subject of importance to clinical teachers.”30 in order to correct what he sees as an imbalance in clinical education away from skills and skills-oriented clinical scholarship, he argues that skills training is the central goal of clinical education and urges clinical teachers to see themselves primarily as teaching lawyering skills. with such an adjustment of perspective, he expects that clinical education and clinical scholarship will get back on track: the case for clinical scholarship 13 24 the lawyering process, supra note 2. 25 for an insightful analysis of bellow’s and moulton’s approach to these issues in the lawyering process, see alexander scherr, lawyers and decisions: a model of practical judgment, 47 vill. l. rev. 161, 183–88 (2002). 26 alex j. hurder, the pursuit of justice: new directions in scholarship about the practice of law, 53 j. legal educ. 167, 170 (2002). 27 see margaret martin barry, jon c. dubin, and peter a. joy, supra note 22, at 55 (acknowledging “clinical education’s long-standing commitment to social justice and the inculcation of the professional values of access to justice, fairness, and non-discrimination in the legal system”) 28 for recent clinical scholarship on “the social justice mission of clinical legal education,” presented at the rutgers-newark law school conference on that topic, see jane h. aiken, provacateurs for justice, 7 clin. l. rev. 287 (2001); antoinette sedillo lopez, learning through service in a clinical setting: the effect of specialization on social justice and skills training, 7 clin. l. rev. 307 (2001); stephen l. wizner, beyond skills training, 7 clin. l. rev. 327 (2001). 29 stephen ellmann, isabelle r. gunning & randy hertz, why not a clinical lawyer-journal?, 1 clin. l. rev. 1, 6 (1994). 30 peter toll hoffman, supra note 19, at 103. hoffman notes that this anti-skills bent goes beyond scholarship preferences: “not only is there little scholarship about skills, but those conferences and workshops on clinical legal education... infrequently focus on lawyering skills as the topic of presentations.” id. as an example, hoffman notes that a 1994 program sponsored by the american association of law schools’ section on clinical legal education “was devoted primarily to presentations on social justice and clinical legal education. not one of the scheduled presentations was directly related to skills training.” id. at 113 n.67. the most important consequence of considering clinical legal education as a form of skills training is that it will encourage closer examination of the skills models being taught. the more clinical teachers analyse and test the different skills models and develop new models in response, the more scholarship we will see about skills.31 hoffman also sets out his vision of a skills-oriented clinical scholarship: it should “help lawyers improve their representation of clients and help law students prepare to practice law”; “be practical in its orientation and design”; “be grounded in experience, rather than deduced from pure theory untested by practice”; and be accessible to its intended recipients, lawyers and law students.”32 picking up on this theme and incorporating the lawyering skills and values message of the american bar association’s 1992 maccrate report,33 peter joy has argued that “clinical scholarship must incorporate both skills and values in order to fulfil its purpose of benefiting clinicians and the legal profession.”34 in order to highlight the client focus that clinical legal education has brought to law teaching and has urged on the profession, joy’s definition of clinical scholarship focuses on lawyering skills and professional values in a manner “designed to improve the ability of lawyers to represent clients and to help law students prepare to represent clients.”35 noting that much of current scholarship written by clinicians is far removed from such a focus, he charges that “clinicians are suppressing our unique perspective as both law teachers and practicing lawyers.”36 writing about skills and practice does not necessarily lead to effective exchanges between clinical teachers and practicing lawyers; it can be highly theoretical, to the point that it can lose the professional audience. thus, richard boswell has observed that “some of the recent scholarship of clinicians, while representing a significant contribution to understanding the role of law and lawyers in society, is more exclusive than inclusive. . . . it does not speak in the language of clients, lawyers, or even judges.”37 in his view, clinical scholarship should serve as a “bridge” between the legal academy and the larger professional world: new clinical scholarship need not supplant the critical theories of the past two decades, but could inform each constituency about the other: scholarship that focuses on what clinicians talk about and experience on a daily basis in our interactions with clients, students, lawyers, judges, social workers, legislators, and countless others; scholarship that willingly addresses and grapples with moral and ethical questions. this kind of scholarship might help to draw links between each of these important constituencies of our work. indeed, it might well lead us to a deeper mutual understanding.38 14 journal of clinical legal education july 2004 31 id. at 114. 32 id. at 114. for a discussion of hoffman’s vision, see peter a. joy, clinical scholarship: improving the practice of law, 2 clinical l. rev. 385, 394–97 (1996). 33 see note 55, infra, and accompanying text. 34 peter a. joy, clinical scholarship: improving the practice of law, 2 clinical l. rev. 385, 387 (1996). 35 id. at 388. 36 id. at 390. 37 richard a. boswell, keeping the practice in clinical education and scholarship, 43 hastings l.j. 1187, 1192–93 (1992). 38 id. at 1194. one example of current work along these lines is an international research project that seeks to bring together the legal profession, legal educators, and social scientists in order to develop a shared approach to evaluating and improving lawyer-client communications.39 writing about clinical education as mentioned earlier, any definition of clinical scholarship also encompasses writing on clinical education itself. this is perfectly natural; persons involved in a reform movement want to share (and advertise) their project in writing. moreover, clinical teachers have been accepted most easily into the legal academy as teaching colleagues, which has helped to encourage clinicians to write about law teaching. objectively, this is a good thing; since the clinical movement is dedicated to reforming legal education, one can say that clinical teachers have a responsibility to write about teaching. articles and essays on clinical teaching methods appear regularly; much of this work has been received positively in the legal academy, reinforcing the notion that clinical education has had a transformative effect on professional training. the volume of this work is huge and giving justice to its content is far beyond the scope of this paper. nonetheless, some examples will give a flavour of this far-reaching literature. the clinical faculty at vanderbilt university law school published an anthology of readings for live-client clinics a number of years ago composed almost exclusively of what most clinicians would agree is clinical scholarship.40 the first chapter of the anthology addresses the subject of live-client clinical education, and does so in two parts: one covering curricular objectives and the other covering the clinical methodology. beginning with jerome frank’s seminal article, why not a clinical lawyerschool?,41 the part on curricular objectives includes articles that map the future of clinical education in the context of its past (or lack thereof),42 reflect on the influence the maccrate report’s statement of fundamental skills and values on a professional training curriculum,43 and explore how the range of learning opportunities that can come from the supervised clinical practice.44 the part on the clinical methodology includes articles that set forth an educational context for clinical legal education,45 criticise the actual clinical teaching that takes place,46 and offer models for clinical instruction.47 there is, however, a dark side to this success story. a false dichotomy between teaching and scholarship that plagues legal education generally tends to be applied with special vengeance to the case for clinical scholarship 15 39 see clark d. cunningham, evaluating effective lawyer-client communication: an international project moving from research to reform, 67 fordham l. rev. 1959 (1999). 40 clinical anthology: readings for live-client clinics (alex j. hurder, frank s. bloch, susan l. brooks & susan l. kay eds., 1997). the editors discuss their debt to clinical scholarship in frank s. bloch, susan l. brooks, alex j. hurder & susan l. kay, filling in ‘the larger puzzle’: clinical scholarship in the wake of the lawyering process, 10 clinical l. rev. 221 (2003). 41 see note 2, supra. 42 anthony g. amsterdam, clinical legal education – a 21st century perspective, 34 j. legal educ. 612 (1984). 43 jonathan rose, the maccrate report’s restatement of legal education: the need for reflection and horse sense, 44 j. legal educ. 548 (1994). 44 ann shalleck, clinical contexts: theory and practice in law and supervision, 21 n.y.u. rev. l. & soc. change 109 (1993). 45 frank s. bloch, the andragogical basis of clinical legal education, 35 vend. l. rev. 321 (1982). 46 robert condlin, “tastes great, less filling”: the law school clinic and political critique, 36 j. legal educ. 45 (1986). 47 minna j. kotkin, reconsidering role assumption in clinical education, 19 n. mex. l. rev. 185 (1989). clinical law teachers.48 articles, or even books, that address clinical legal education are not valued in the same way as is traditional academic scholarship. even to the extent that the issues addressed in these types of works – law school instruction and preparation for the practice of law – are recognised as important to the legal academy, writing about them is not seen as academic. this is, of course, not unique to writings on clinical legal education; downgrading writing on clinical teaching puts clinicians, in this respect at least, on a par with other law teachers who write about teaching. does this mean that clinicians should abandon clinical education as a subject for clinical scholarship? is it simply a question of terminology: keep writing about clinical education, but don’t call it clinical scholarship? in my opinion, the answer to both questions is a resounding “no.” the clinical movement is just that – a movement – and the word needs to be spread in the coming years, particularly across national and regional boundaries. and because clinical education stands for much more than a novel set of course descriptions, which are properly not considered scholarly in nature, more substantial writing on clinical education deserves to share the label of clinical scholarship. clinical scholarship, academic status, and the elusive problem of legitimacy scholarship is, of course, the key to professional status and personal security in the legal education; “publish or perish” is an old story at law schools and elsewhere in the academic world. for traditional academics, it is an easy either/or proposition: either you publish at a certain level of quality and quantity or you move on. although the publication requirement varies considerably from school to school, if you achieve at the expected level – often with different levels of expectation preand post-tenure – you enjoy continuing and relatively undifferentiated status along with your colleagues on the law faculty.49 the title “law professor” is reserved for scholars, or at least persons who can pretend to be scholars,50 and once you’re in the club you’re a member for life. the role of scholarship is not so simple in the world of clinical legal education. in addition to the issues of content referred to earlier – is what clinicians write really scholarship? – one can ask quite legitimately whether clinicians should write at all. after all, if clinical programs are intended to counterbalance removed-from-practice classroom instruction, shouldn’t clinical teachers devote themselves to practice and practice-based instruction rather than mimic their scholarship producing nonclinical counterparts? many clinicians thus find themselves, for better or worse, off the traditional scholarship treadmill. for better, in the sense that clinical faculty can argue for a wider definition of “scholarship” than 16 journal of clinical legal education july 2004 48 for a discussion of this and another false dichotomy in clinical legal education, practical training vs. public service, see frank s. bloch, teaching and doing justice: the importance of clinical legal education to law schools facing new global challenges (paper presented on 8 march 2003 at the conference on global challenges for legal education and human rights teaching, sponsored by the uk centre for legal education and the university of warwick). 49 status is relatively undifferentiated for law professors in the us since the tenure and promotion policies at most schools – unlike traditional academic departments – favour early tenure decisions and simultaneous promotion of tenured faculty to full professor. 50 obviously, the correlation is not complete. but there can be no doubt that the production of scholarship is a key expected output of law faculty and a measure of their and their home institution’s standing. their traditional academic colleagues by pointing out the broad social and professional goals of the clinical movement and the relative richness and complexities of the clinical teaching method. worse in the sense that distinguishing between writing about clinical teaching and traditional law teaching can result in two dramatically contrasting, but equally negative, institutional consequences: rejection of the distinction by the faculty, followed by a “blood bath” at the time of promotion or tenure; or acceptance of the distinction, followed by an almost unavoidable secondclass status for the clinical program and its faculty. just as including serious writing about clinical education within the definition of clinical scholarship is a key to keeping the “clinical” in clinical scholarship, we need to be mindful of the consequences of taking the “scholarship” out. my conception of clinical scholarship is simple and direct: it must be informed by the clinical experience (in other words, written by a clinician relative to his or her clinical work) and it must advance the goals of the clinical movement (certainly beyond lawyering skills and values, but not any writing that happens to be by a clinician). this may be too vague for some, but too close a definition runs the risk of marginalisation. in my opinion, for clinical scholarship to survive it must both establish its identity and at the same time combat false compartmentalisation. arguing over whether clinical scholarship should focus on skills or public interest practice misses the point; both are informed by the clinical experience and both address issues important to the clinical movement. clinical law teachers have a duty to write about the academic side of their work, whether on the lawyering process, law and society, or legal education reform. indeed, having both the responsibility for and the opportunity to write clinical scholarship is a key to establishing clinical legal education’s rightful place in the legal academy. the case for clinical scholarship the proper place of scholarship in the legal academy is a serious question that has occupied lawyers, judges, and law faculties both in private discussions and in print over the years, and will continue to do so for a long, long while. there is no reason to review the general debate here,51 but some mention of critiques of particular relevance to a clinical perspective on the issues is warranted before turning specifically to the case for clinical scholarship. in a widely cited article, the case against legal scholarship, john elson makes the simple point that typifies many clinicians’ aversion to traditional legal scholarship: when law schools devote so much resources – and professors so much time and energy – to scholarship directed at obscure subjects of the professors’ personal interests, they necessarily limit the amount of attention paid to the central task of educating new lawyers.52 specifically, professor elson argues: [f]irst, law schools have a paramount duty to educate their students for practice competence; second, law schools generally are not fulfilling that duty satisfactorily; third, the more emphasis law schools give to the production of legal scholarship, the the case for clinical scholarship 17 51 much of the debate over modern legal scholarship began with a widely cited and discussed 1992 article by judge harry t. edwards, in which he argued that the legal academy had become self-indulgent and almost irrelevant to the profession. see harry t. edwards, the growing disjunction between legal education and the legal profession, 91 mich. l. rev. 34 (1992). for judge edward’s comments following strong response to the article, see harry t. edwards, the growing disjunction between legal education and the profession: a postscript, 91 mich. l. rev. 2191 (1993) (symposium on the 1992 article). see generally peter a. joy, clinical scholarship: improving the practice of law, 2 clinical. l. rev. 385 (1996) (discussing a “growing introspection over legal scholarship and the dissonance between legal scholarship and the legal profession”). 52 see john s. elson, the case against legal scholarship, supra note 20, at 370–71. less satisfactory their education for professional competence is likely to be; and, fourth, the reasons commonly asserted for the primacy of law school’s scholarly mission do not justify the resulting cost to their mission of professional education.53 elson’s argument is, in effect, a classic slicing-a-static-pie argument – but one that has a strong realistic appeal in the traditional academic setting. if his reasoning is carried over to clinical scholarship, it could suggest that clinicians not write at all – for reasons very different from those mentioned earlier in the context of clinical education and academic legitimacy: what clinicians can write about is not scholarship. however, just the opposite is true. a great strength of clinical legal education is that it embraces its tie to the “real world” of law practice. the clinical methodology gains much of its richness when students are immersed in actual lawyer work, with all of its complexities and ambiguities. the resulting exposure of clinical teachers to practice in this unique setting, both directly and through the eyes (and experience) of their students, offers them the opportunity to study the profession from a different perspective than their academic colleagues and to write about important matters that might not be written about otherwise.54 if taken up with real enthusiasm and as an integral part of their clinical practice, clinical scholars can not only bridge existing gaps between the legal academy and the legal profession, but in doing so can enrich both by shedding new light from each on the other. i do not mean to suggest that the practice of law and the role that lawyers play in the legal process had not been written about before. nor can i say that clinicians should have an exclusive claim on the field. but there can be no doubt that the clinical movement and the growing body of clinical scholarship have expanded the scope of this work and have done so in ways that are particularly important to the future of the legal profession. clinicians are credited in the united states, for example, with redefining the scope of law practice and what it means to be a “good” lawyer. thus, the american bar association’s historic maccrate report, in which a select committee identified fourteen critical skills and values of the profession, drew heavily on the work of clinical legal education and relied to a substantial extent on clinical faculty.55 another important contribution along these lines is the “best practices project” at the center on professionalism at the university of south carolina, a project undertaken with the co-sponsorship of the clinical legal education association to identify the best practices for preparing new lawyers for law practice.56 moreover, clinicians through their scholarship have pressed their case lawyers in the field, urging greater appreciation of their insights on lawyering and application of their work on professional skills and values. by combining their academic-based appreciation of the broader roles of law and lawyers in society together with on-the-ground exposure to client’s problems and the limits of the legal system’s ability to address those problems, clinical scholarship on new approaches to lawyering has helped equip lawyers to serve better their client’s needs. a prominent example is the extensive literature on client-centred lawyering. applied first by clinicians in the context of legal 18 journal of clinical legal education july 2004 53 id. at 344 (citations omitted). 54 thus, it was a pair of clinicians who opened the way for critical examination of the “lawyering process” in a highly influential book of the same name. see the lawyering process, supra note 2. the clinical law review published a symposium issue celebrating the twenty-fifth anniversary of the publication of the book in 2003. see symposium, the 25th anniversary of gary bellow’s and bea moulton’s the lawyering process, 10 clinical l. rev. 1–468 (2003). 55 section of legal educ. and admissions to the bar, am. bar ass’n, legal education and professional development – an educational continuum (report of the task force on law schools and the profession: narrowing the gap, 1992). 56 this project can be viewed at: http://professionalism.law.sc.edu/news.cfm#clea. counselling, client-centredness has made its way into a wide range of work on law practice.57 another example is the field of “therapeutic jurisprudence,” which clinicians have used to go beyond the realm of win-lose results and examine how law and how it is practiced can have can have an influence on clients’ physical and psychological well being.58 the range of what can be covered in clinical scholarship is illustrated by an important link between two major goals of clinical legal education: improving the quality of practical training in law school is itself public service. in most countries there are plenty of lawyers. at the same time, there is a real shortage of good lawyers – especially in lower income communities. lawyer incompetence is its own form of injustice; therefore, the practical training aspects of clinical legal education serve the public by improving lawyer competence through the use of experiential teaching and learning. depending on the availability of resources and differing local rules and practices, this can include supervised “real world” legal work at law school clinics or in fieldwork placements and/or classroom work using simulated problem-based materials. of course, improving the quality of the bar involves more than raising levels of technical competence. clinical education also seeks to address generally the public role of law and lawyers in society and to motivate young lawyers to work for the public good. depending again on the availability of resources and differing local social, economic, and political contexts, clinical programs bring this message home to law students by having them contribute directly to the public interest in a variety of ways. here again, the richness of “live client” or real-world-based clinical education can lead to a unique clinical scholarship. gary palm has argued, for example, that clinical scholarship should be incorporated directly into the teaching and public service missions of clinical legal education.59 according to him, “the ‘complete’ clinical teacher is one whose collaborative work with students includes some efforts to obtain reforms to correct systemic problems which have been identified through representing individual and organisational clients directly.”60 although a well-known sceptic on the subject of clinicians engaging in traditional scholarship,61 he finds that scholarship linked to this type of “complete” clinical work – what he might call “true” clinical scholarship – adds value to the enterprise and can support the ultimate goals of the clinical movement: for the clinical teacher who engages in such efforts to achieve systemic reform, scholarship affords a means to expand a clinical programme's efficacy by sharing the case for clinical scholarship 19 57 d. binder & s. price, legal interviewing and counseling: a client-centred approach (1977). see also robert d. dinerstein, client-centred counseling: reappraisal and refinement, 32 ariz. l. rev. 501 (1990); donald g. gifford, the synthesis of legal counseling and negotiation models: preserving clientcentred advocacy in the negotiation context, 34 ucla l. rev. 811 (1987). 58 see david b. wexler, “reflections on the scope of therapeutic jurisprudence, 1 psychol., pub. pol’y & l. 220, 224 (1995). 59 see gary h. palm, reconceptualizing clinical scholarship as clinical instruction, 1 clinical l. rev. 127 (1994) [hereinafter reconceptualizing clinical scholarship]. see also lucie e. white, collaborative lawyering in the field? on mapping the paths from rhetoric to practice, 1 clinical l. rev. 157 (1994) (describes an advanced clinical seminar at ucla in which students investigated grassroots social initiatives and examined the types of organisations involved, the roles of lawyers in the organisations’ agendas, and the inherent tensions of the work; stresses the need for critical reflection on the dynamics and process of grassroots organising, and for increased clinical scholarship). 60 gary h. palm, reconceptualizing clinical scholarship, supra note 59, at 132. 61 this view was expressed in print during his tenure as chair of the section on clinical legal education of the association of american law schools. see gary h. palm, message from the chair, in aals section on clinical legal education, newsletter, sept. 1986, at 1. information about successful approaches with other clinical teachers. moreover, articles of this sort will stimulate others to come up with yet other ideas to improve clinical programs and the quality of representation of clients.62 i mentioned earlier that clinical education is a work in progress. so is clinical scholarship. there are countless ways that the complexities of clinical practice can be matched with those of the legal profession and the academy to present interesting and worthwhile questions to consider. take, for example, the matter of client voice. the context of clinical practice led clinical scholars to introduce client narrative in their legal scholarship, an innovation that has been followed widely by non-clinical scholars as well.63 this came naturally to clinicians not only since they focus directly on clients and clients’ needs with their students in their capacity as lawyer-teachers, but also because the nuances of lawyer-client interaction is a key component of the clinical curriculum. clinicians must continue to draw on their access to this unique perspective in order to enrich particularly clinical scholarship, but at the same time address important sensitivities this opportunity presents. just as clinical scholars have pointed out regularly in the context of client representation that clients have and own their own voices,64 a proper understanding of and respect for their ownership of clients’ voices is indispensable to a responsible clinical scholarship.65 not only should clients’ voices, when used, be understood and credited, but they should also be representative of the appropriate community according to the issues discussed in the work. but use of client narrative in legal scholarship is itself problematic and needs to be examined in the context of the ethics of telling a client’s story in print. despite their experience in working with clients as lawyers and teachers, this is an area where clinicians may need to turn to fellow scholars (clinical or not) for guidance.66 conclusion i do not underestimate the difficulties that clinicians face in writing serious scholarship; the life of a clinical law teacher is quite different from that of his or her traditional academic counterpart. first and foremost, for live-client clinical teachers, is the stress and on-going responsibility that goes with handling real cases. then there are the tremendous time demands of one-on-one 20 journal of clinical legal education july 2004 62 gary h. palm, reconceptualizing clinical scholarship, supra note 59, at 132. see also stephen ellmann, isabelle r. gunning & randy hertz, supra note 29, at 2 (“like their nonclinical colleagues, clinicians have come to see scholarship as a means of disseminating information about innovative approaches and exploring ideas that grow out of clinical teaching experiences”). 63 among the clinicians credited with early client narrative scholarship are anthony alfieri, clark cunningham, and lucie white. see, e.g., anthony v. alfieri, speaking out of turn: the story of josephine v., 4 geo. j. legal ethics 619 (1991); clark d. cunningham, the lawyer as translator, representation as text: towards an ethnography of legal discourse, 77 cornell l. rev. 1298 (1992); lucie white, subordination, rhetorical survival skills, and sunday shoes: notes on the hearing of mrs. g., 38 buff. l. rev. 1 (1990). see generally, binny miller, telling stories about cases and clients: the ethics of narrative, 14 geo. j. legal ethics 1, 7–12 (2000). 64 see note 57, supra, and accompanying text. 65 cf. robert dinerstein, clinical education in a different voice: a reply to robert rader, 1 clinical l. rev. 711, 711 (1995) (“many of our current discussions about clinical scholarship decry the absence (or appropriation) of client voice in clinical scholarship”). 66 see binny miller, supra note 63, at 4 (“the client focus of the collaborative lawyering approach suggests that legal academics need to consider whether clients should have a say in decisions about how their stories are told. yet surprisingly, while clients are in the forefront of many law review articles, they are almost invisible in the decision making process about which story to tell or whether to tell a story at all”); id. at 5 (“while the ethics of scholarship literature examines the integrity of scholars’ conclusions, it does not look in depth at clients as the subject of scholarship. the authors of stories about clients also sidestep the ethical issues”). teaching/supervision/critique required for just about any type of clinical course. as one clinician wrote recently, the challenges that clinical teachers face in producing written scholarship are “daunting.”67 nonetheless, clinical teachers are academic lawyers; scholarship should be what they do. clinicians through their clinical scholarship have begun to change the way the profession looks at itself and, to some degree, what it does. clinical scholars are, and must continue to be, active voices in the profession and society. ultimately, the benefits of legitimacy brought about by the publication of serious clinical scholarship will also support the active, public service mission of clinical legal education. contrasting the current distressed state of federally funded legal services in the united states with a relatively strong and stable system of clinical education, professor rick wilson notes: the clinical legal education movement, on the other hand, by casting itself more as a fundamental component of legal education than as another means by which legal services can be provided to the poor, has been successful in accomplishing a legitimate role for itself in u.s. legal culture. it is helped in this effort by the development of a body of clinical scholarship that contributes to its legitimate academic standing, as well as the fact that it has never been primarily funded by the state.68 this is “publish or perish” in a constructive sense, using the “bully pulpit” of academia to ensure a permanent place in legal education for all that clinical education has shown the legal academy it can be. the case for clinical scholarship 21 67 kimberly e. o’leary, evaluating clinical teaching – suggestions for law professors who have never used the clinical teaching method, 29 n. ky. l. rev. 491, 511 (2002). other “challenges” noted by professor leary on a non-exclusive list include having to learn the clinical teaching methodology, writing about problems not addressed by “traditional” scholarship, not knowing the unwritten rules about scholarly writing, and dealing with political battles surrounding the clinic. id. at 511–14. for a view of these issues from the perspectives of a legal writing instructor, see susan p. liemer, the quest for scholarship: the legal writing professor’s paradox, 80 or. l. rev. 1007 2001 68 richard j. wilson, three law school clinics in chile, 1970–2000: innovation, resistance, and conformity in the global south, 8 clinical l. rev. 515, 579 (2002). can we assess what we purport to teach in clinical law courses? roy stuckey* "assessment evaluation: a judgment about something based on an understanding of the situation."1 "assess: to judge . . . the . . . quality . . . of something."2 many claims are made about the educational value of clinical education in law schools. unfortunately, the first generation of clinical law teachers did not clearly articulate our educational goals nor did we fully explore how to assess the effectiveness of our instruction. subsequent generations of clinical teachers adopted the practices of their predecessors and mentors. consequently, many issues related to assessments of clinical students remain unexplored, and current practices tend to be neither valid nor reliable. while clinical teachers in the united kingdom have made more progress than those in the united states,3 all clinical teachers need to work together to improve our understanding of assessments and to develop improved methods for finding out whether our students are learning what we purport to teach. this article explains the importance and nature of assessments, illustrates some of the issues presented by current practices, and proposes some new directions to consider. it concludes that much work remains to be done to clarify the goals of clinical legal education and to develop valid and reliable assessment tools.4 can we assess what we purport to teach in clinical law courses? 9 * webster professor of clinical legal education, university of south carolina school of law, usa. 1 encarta dictionary, http://encarta.msn.com/encnet/dictionary (last visited may 22, 2006). 2 cambridge advanced learners dictionary, http://dictionary.cambridge.org (last visited may 22, 2006). 3 evidence of this includes multiple assessmentrelated projects in the u.k., some of which are accessible via the webpage titled "resources on assessment in legal education" maintained by the uk centre for legal education, http://www.ukcle.ac.uk/resources/assessment/index. html (last visited august 15, 2006). there is no equivalent resource in the united states. 4 portions of this paper were adapted from roy stuckey, best practices for legal education: a project of the clinical legal education association (march 31, 2006, draft). the most current draft is posted on-line at http://professionalism.law.sc.edu (look in the "news" section on the main page). the drafting phase of the project should be completed in september 2006. the purpose and importance of assessments the main purpose of assessments in educational institutions is to discover if students have achieved the learning outcomes of the course studied.5 in other words, we use assessments to find out whether our students are learning what we want them to learn. in law schools, as in medical schools, one purpose of assessment is to determine which students should receive degrees, but other purposes of assessment are more important. aside from the need to protect the public by denying graduation to those few trainees who are not expected to overcome their deficiencies, the outcomes of assessment should be to foster learning, inspire confidence in the learner, enhance the learner's ability to self-monitor, and drive institutional self-assessment and curricular change.6 the goals and methods we select for assessment are important. "assessment methods and requirements probably have a greater influence on how and what students learn than any other single factor. this influence may well be of greater importance than the impact of teaching materials."7 [c]hanging the assessment procedure is one of the most effective ways of changing how and what students learn. surface approaches are induced by excessive workloads, a narrow band of assessment techniques and undue emphasis upon knowledge reproduction. deep approaches are influenced by choice, a variety of assessment methods, project work and an emphasis upon tasks that demand demonstration of understanding.8 thus, legal educators, including clinical teachers, should consider carefully what we are trying to assess and how we are doing it. types of assessments in clinical courses there are at least three types of assessments in clinical courses: evaluating overall competency, helping students understand what they learn from individual, unique experiences, and determining whether students are learning what we are trying to teach. consider the differences in the following questions that a clinical teacher might ask: "how competent is the student?," "what did the student learn?," and "did the student learn what i intended?" the first question focuses on how well a student performs as a lawyer. this is a natural and important question to ask, because clinical courses, especially those involving actual client representation, present opportunities for students to test for the first time on a personal level a number of abilities that are essential for lawyers. perhaps the most important of these is whether a student is able to engage in appropriate behaviors and integrity in a range of situations. 10 journal of clinical legal education august 2006 5 alison bone, ensuring successful assessment 3 national centre for legal education guidance note (burridge & varnava: series eds., 1999), available at www.ukcle.ac.uk/resources/assessment/bone.pdf 6 ronald m. epstein, md, & edward m. hundert, md, "defining and assessing professional competence", 287 jama 226, 226 (jan. 9, 2002). 7 bone, supra note 5 at 2 (quoting d.boud, enhancing learning through self-assessment (1995)). 8 id. at 4 (citing g. brown, assessment of learning: its implications for quality, paper delivered at open university conference on changing patterns of student assessment and examination (jan. 1994)). that is, students in client representation courses are beginning to learn the extent to which they are able to conduct themselves professionally and provide competent legal services. the assessment of students' professional strengths and weaknesses is an important function of clinical teachers, and it occurs to some degree or another in every type of clinical course. these "holistic" assessments begin with the very first task that a student undertakes in a clinical course. some of the knowledge, skills, and values that are reflected in each performance were acquired before students enrolled in the clinical course. thus, when we ask "how competent is the student?," we are potentially assessing everything that a student has learned during law school, or for that matter, during their lives, not just what a student is learning in the clinical course. this is an important reality for clinical teachers to keep in mind, especially in the united states where it is common practice for clinical teachers to mark or grade everything a student does from the very first day in the course. "holistic" assessments are not addressed in this article. ross hyams discusses issues related to overall competence assessments of students in the article that he submitted to the journal.9 now consider the second question, "what did the student learn?" in clinical courses students might learn what we intend for them to learn, but they also frequently learn lessons that are unexpected, unplanned by the instructor, and unique to the particular student. these lessons may be quite valuable to the student, and clinical teachers can play a role in maximizing the educational value of these experiences. one would not, however, necessarily want to assess whether or how well a student learns such lessons or use such assessments for assigning grades or advancement decisions, because they are not educational objectives of the course or lessons that the student needs to learn to earn credit for the course. on the other hand, we might want to assess the student's self-reflection skills and ability to learn from practice, if developing these skills are educational goals of the course. the third question, "did the student learn what i intended?," is the focus of this article how do we tell whether our students are learning what we intend for them to learn? i begin with the assumption that a clinical course has clear educational objectives, the instructors and students are aware of these goals, and they are interested in employing assessment tools to find out whether those objectives are being accomplished. basic principles of assessment the purpose of this section is to establish a shared vocabulary about assessments. an assessment may take the form of a final exam, a test administered after a unit of instruction is covered, a paper, observation of performance, a discussion between student and teacher, portfolio (profile) reviews, or some other method of determining what a student has learned. before selecting an assessment tool, we should be clear about the goals of the assessment and the purposes for which it will be used. can we assess what we purport to teach in clinical law courses? 11 9 ross hyams, student assessment in the clinical movement what can we learn from the u.s. experience?, paper presented at the fourth international journal of clinical legal education conference in london (july 12-13, 2006) (copy on file with roy stuckey). the goals of a particular assessment may be to evaluate a student's knowledge, behavior (what a student does before and after a learning experience), performance (ability to perform a task), attitudes/values, or a combination of these.10 the purpose of an assessment can be formative, summative, or both. formative assessments are used to provide feedback to students and faculty. their purpose is purely educational, and while they may be scored, they are not used to assign grades or rank students. a summative assessment is one that is used for assigning a grade or otherwise indicating a student's level of achievement. "summative assessment occurs at the end of a course of study and is primarily used for the purpose of making a final judgement of the student alongside his or her peers final in the sense that (unless there are mitigating circumstances) it is how a student performs in this assessment that will be used to decide whether a student can proceed, e.g., to the next level of the course or be admitted to a vocational course."11 an assessment tool should be valid. an assessment tool is valid if it allows the teacher to draw inferences about a student's acquisition of the skills, values, and knowledge that the tool purports to assess.12 congruence is a necessary aspect of validity, that is, the goals of the assessment must agree with the goals of the instruction.13 for example, a professor who seeks to build students' ability to apply and distinguish cases might administer an essay question that raises issues that test the outer limits of a set of precedents. on its face, the assessment appears to be a valid test of the skill. if, however, students must take the test in a closed-book setting or without sufficient time to review the relevant authorities while taking the test, students who have developed the ability to apply and distinguish cases but possess poor memorization skills would likely perform poorly. thus, the assessment tool would not be valid. an assessment tool should also be reliable; that is, it should accurately rate those who have learned as having learned and those who have not learned as having not learned.14 it should not matter whether a student is being assessed first or last or whether one teacher or another is conducting the assessment. assessments can be norm-referenced or criteria-referenced. assessments in the united states tend to be norm-referenced; assessments in the united kingdom are typically criteria-referenced. norm-referenced assessments are based on how students perform in relation to other students in a course rather than how well they achieve the educational objectives of the course. normative assessment is often done to ensure that certain grade curves can be achieved. this approach allows law schools to sort students for legal employers. norm-referenced evaluations inform students how their performance relates to other students, but they do not help students understand the degree to which they achieved the educational objectives of the course. this can have a negative effect on student motivation and learning. 12 journal of clinical legal education august 2006 10 see gregory s. munro, outcomes assessment for law schools 111-17 (2000). 11 bone, supra note 5, at 4. 12 gerald hess and steve friedland, techniques for teaching law 289 (1999). see also patricia l. smith and tillman j. ragan, instructional design 95 (2d ed. 1999). 13 smith and ragan, supra note 12, at 95. 14 id. at 97. [s]tudents . . . perceive that something different is going on in the current circumstance, and wonder whether the "sorting" process reflects an artificial or arbitrary allocation of rewards. in the absence of a clearly stated explanation of the actual standards to be achieved, it is easy to become frustrated, then angry, wasting energy that might otherwise be invested in meaningful efforts to learn. students also powerfully articulate their hunger to link assessment and learning. they want to learn to take exams, and they want feedback so they can improve.15 norm-referenced assessment allows grades to be distributed along a bell curve, but this should be neither a goal nor an expectation of assessments. what matters is whether students adequately achieve the learning outcomes of the course. a bell curve outcome actually reflects a failure of instruction. our goal should be for every student to achieve the learning outcomes we establish for each course, whether those are to learn certain information, understand key concepts, or develop skills to a specified level of proficiency. some students may get there faster or easier, but if our teaching is effective and successful, all students should learn what we want them to learn and earn high marks on assessments. if a student is incapable of learning what we are trying to teach, the student should not be allowed to become a lawyer. criteria-referenced assessments rely on detailed, explicit criteria that identify the abilities students should be demonstrating (e.g., applying and distinguishing cases) and the bases on which the instructor will distinguish among excellent, good, competent, or incompetent performances.16 the use of criteria minimizes the risk of unreliability in assigning grades.17 criteria-referenced assessment enables teachers to "judge whether certain criteria have been satisfied and normally operates on a pass/fail basis: an example would be the driving test. it is not important to establish whether more or less drivers pass this test in any one year (or at any one centre) but only to ensure that the national pass standard is maintained."18 the use of clear criteria helps students understand what is expected of them as well as why they receive the grades/marks they receive and, even more importantly, it increases the reliability of the teacher's assessment by tethering the assessment to explicit criteria rather than the instructor's gestalt sense of the correct answer or performance.19 the criteria should be explained to students long before the students undergo an assessment. this enhances learning and encourages students to become reflective, empowered, self-regulated learners.20 in creating assessment criteria, teachers should recognize that the development of professional expertise takes time and there are stages with discernable differences, for example, novice, advanced beginner, competent, proficient, and expert.21 therefore, our assessments should communicate to students where their development of professional expertise stands. defining the level of proficiency that we want law students to achieve at each stage of their professional development is a task that warrants the attention of clinical teachers. can we assess what we purport to teach in clinical law courses? 13 15 judith wegner, thinking like a lawyer about law school assessment (draft 2003) (unpublished manuscript on file with roy stuckey) (hereinafter wegner, assessment). 16 sophie sparrow, "describing the ball: improve teaching by using rubrics-explicit grading criteria", 2004 mich. st. l. rev. 1, 6-15. 17 see n. r. madhava menon, "designing a simulation-based clinical course: trial advocacy" in a handbook on clinical legal education 177, 181 (n. r. madhava menon ed., eastern book company, india 1998) ("students and evaluators need a clear understanding of the criteria on which performances will be graded."). 18 bone, supra note 5, at 4. 19 sparrow, supra note 16, at 28-29. 20 id. at 22-25. 21 wegner, assessments, supra note 15, at 11. clinical courses clinical courses are courses that use experiential education as the primary method of instruction. experiential education can occur in many contexts in u.s. law school courses and in u.k. law school courses, vocational courses, and law firm training. there are three primary types of clinical courses: simulation-based courses, in-house clinics, and externships.22 these courses differ from each other in the following ways: -in simulation-based courses, students assume the roles of lawyers and perform lawrelated tasks in hypothetical situations; -in in-house clinics, students represent clients or perform other professional roles23 under the supervision of members of the faculty; and -in externships, students represent clients or perform other professional roles under the supervision of practicing lawyers or they observe or assist practicing lawyers or judges at their work. experiential education integrates theory and practice by combining academic inquiry with actual experience. learning is not education, and experiential learning differs from experiential education.24 learning happens with or without teachers and institutions.25 for example, eavesdroppers learn about the things they hear,26 yet they are not educated simply by the fact of eavesdropping because the activity is not accompanied by a teacher's or institution's participation in the learning process. education, in contrast to a learning opportunity, consists of a designed, managed, and guided experience.27 28 thus, while part-time work experiences of law students in legal settings can be valuable learning experiences, they are not considered experiential education because the learning in such environments is not necessarily accompanied by academic inquiry. optimal learning from experience involves a continuous, circular, four stage sequence of experience, reflection, theory, and application. experience is the immersing of one's self in a task or similar event the doing. reflection involves stepping back and reflecting on both the cognitive and affective aspects of what happened or was done. theory entails interpreting the task or event, making generalizations, or seeing the experience in a larger context. application enables one to plan for or make predictions about encountering the event or task a second time.29 14 journal of clinical legal education august 2006 22 some people define experiential education as involving "real life," not simulated, experience. see, e.g., hess and friedland, supra note 12, at 105. 23 other professional roles include, for example, serving as mediators or teaching street law. 24 see lewis jackson and doug macisaac, "introduction to a new approach to experiential learning" in 62 new directions for adult & continuing educ. 17, 22-23 (1994). 25 ronald barnett, "what effects? what outcomes?", in learning to effect 3, 4 (ronald barnett ed., 1992). 26 id. 27 robert stevens, law school: legal education in america from the 1850s to the 1980s 24 (1983). 28 james e. moliterno, "legal education, experiential education, and professional responsibility", 38 wm. & mary l. rev. 71, 78 (1996). 29 steven hartwell, "six easy pieces: teaching experientially", 41 san diego l. rev. 1011, 1013 (2004). there are three domains of learning, and students who are being educated experientially are involved in all three: -the cognitive domain (increasingly complex sorts of understandings and analytical processes), -the psychomotor or performance domain (complex patterns of physical or motor activity such as lawyering activities), and -the affective or feeling domain (values, attitudes, and beliefs).30 jay feinman further describes the cognitive, performative, and affective skills that law students need to develop: cognitive skills range from simple recall of facts, through the ability to apply prior knowledge to solve new problems, up to the ability to evaluate the use and implications of one's knowledge. in law school, these skills involve the understanding of substantive law, legal process, and related matters such as professional responsibility. performative skills in law are increasingly defined by the maccrate report's catalog of skills beyond legal analysis and reasoning, including legal research, factual investigation, counseling and the management of legal work. affective skills include personal and professional issues: how students feel about their competency as lawyers, how they relate to the client, how they respond to problems of professional responsibility, and how their values inform their role.31 experiential education is especially beneficial to students because it gives them opportunities to be actively involved in their own education, and it has positive effects on their motivation, attitudes toward the course, willingness to participate in class, ability to ask insightful questions, and acquisition of knowledge and skills. any subject can be taught using experiential methodology. the challenge is to determine what lessons can be taught more effectively and efficiently using experiential education than through other methods of instruction and to focus our time and energy on accomplishing those learning objectives. once we select our desired outcomes and decide how we will try to achieve them, we need to find out if our students are learning what we purport to be teaching. this requires valid, reliable assessment tools. it would not be fair to grant credit for course work or to base decisions about marks or grades on anything other than solid evidence showing which students are learning and which are not. unfortunately, as we will see in the following section, this can be a difficult, sometimes impossible, task. can we assess what we purport to teach in clinical law courses? 15 30 kenneth r. kreiling, "clinical education and lawyer competency: the process of learning to learn from experience through properly structured clinical supervision", 40 md. l. rev. 284, 287, n.10 (1981). 31 jay m. feinman, "simulations: an introduction", 45 j. legal educ. 469, 472 (1995). specific examples the remainder of the article will examine four outcomes that might be among the educational objectives of a clinical course to illustrate some of the issues related to the assessment of clinical students: 1. understanding litigation and alternative dispute resolution. 2. autonomy and ability to learn. 3. ability to establish rapport in an initial client interview. 4. a commitment to seeking justice. i do not mean to imply that these goals would necessarily exist in a given clinical course. they are presented here to provide a context for discussing assessment issues. 1. understanding litigation and alternative dispute resolution. it is easier to set and control educational goals in simulation courses than in client representation courses. some of the educational goals of client representation courses are predetermined and unavoidable. we have to teach students about office procedures, including the central importance of avoiding conflicts of interests and maintaining confidences. we have to teach students about their relationships with us and the restrictions we are placing on their freedom to engage in client representation. we often have to teach the rules of evidence and professional conduct and basic lessons about lawyering skills and how to act as lawyers. we also have to teach students about the law, procedures, systems, and protocols of the various practice settings they will encounter in our courses. a common objective of clinical courses is to teach students about litigation and alternative dispute resolution. these are topics that both the maccrate report32 and the law society of england and wales indicate that all lawyers should understand before beginning practice. the maccrate report includes a description of the "fundamental lawyering skills essential for competent representation" for all lawyers graduating from law school in the united states, no matter what practice settings they are entering. among the items on the maccrate list is that a lawyer should understand the potential functions and consequences of litigation and alternative dispute resolution processes and should have a working knowledge of the fundamentals of litigation at the trial-court level, including, inter alia: (a) an understanding of the litigative process, including: (i) the functions and general organization of the trial courts; (ii) basic concepts of jurisdiction; (iii) the availability of alternative forums and the importance of choice of forum; (iv) the basic procedural rules and principles governing jurisdiction in a trial court of general jurisdiction; (v) the basic rules and principles of evidence; 16 journal of clinical legal education august 2006 32 american bar association, section of legal education and admissions to the bar, legal education and professional developmentan educational continuum, report of the task force on law schools and the profession: narrowing the gap (1992) (the maccrate report). (vi) knowledge of the means by which additional pertinent rules of procedure and evidence may be efficiently ascertained (including legal research).33 the law society is more ambitious than the maccrate report in describing the knowledge and skills related to litigation and advocacy that new lawyers should have on day one in practice. the law society expects that, "[o]n completion of this compulsory area [litigation and advocacy] the student should have an appreciation of the nature of civil and criminal litigation, be able to identify the critical steps in the process of litigation and have gained experience through practice of some or all of the stages of litigation."34 the law society also includes a list of the specific abilities related to dispute resolution that students should be able to demonstrate, including various skills and an appreciation of the range of methods available to resolve disputes. it is common for client representation clinical courses, and even simulation courses, to teach many of the topics on the maccrate and law society lists by involving students in specific litigation contexts, such as criminal prosecution and defense, domestic violence, divorce, landlord-tenant, and consumer disputes. the educational objectives of such courses almost necessarily include helping students acquire knowledge of the fundamentals of litigation at the trial level in those specialized contexts. when i taught an in-house divorce clinic, i expected my students to learn how divorce cases are processed in south carolina, the relevant rules of the family court, and the requirements for drafting and serving various types of court documents. this was not knowledge they had before enrolling in my course. it would be fairly easy to conduct a summative assessment to determine whether we are achieving the educational objectives described above as well as other items on the maccrate and law society lists. after all, they refer to "legal knowledge," "understanding," and "ability to identify" which can be demonstrated on traditional written tests. although i could have conducted summative assessments of knowledge and understanding that i was purporting to teach my clinical students, i did not. i am unaware of any clinical teachers who conduct summative assessments of such subjects. why do clinical teachers not make greater use of written instruments for summative assessments? the main reason is probably that the use of written tests to find out what clinical students are learning was not, and still is not, part of the tradition of clinical teachers in the united states or anywhere else that i am aware of. another reason may be that clinical teachers feel they are adequately assessing their students' knowledge and understanding of these topics by working with them on cases. this is certainly true to a degree, but it is not clear how much of this assessment should be considered formative. evaluating knowledge and understanding by observing students' case work is also somewhat subjective and not uniform from student to student. this reason still does not explain why clinical teachers do not also administer end of the term summative assessments to find out if these educational goals are being achieved. can we assess what we purport to teach in clinical law courses? 17 33 id. at 191. 34 education and training unit of the law society of england and wales, legal practice course: written standards 11 (version 10, september 2004), http://www.lawsociety.org.uk/documents/download s/becominglpcstandards.pdf. the legal practice course is the year long vocational training course that aspirant solicitors are required to take following their undergraduate law degrees and before beginning their training contacts (articles). one also might speculate that the absence of formal assessments in clinical courses reflects our insecurity. the fact that we do not administer final exams is popular with students. would students' interest in clinical courses drop if we gave final exams? 2. autonomy and ability to learn. in 1982, tony amsterdam said "the most significant contribution of the clinical method to legal education" is giving students an opportunity to learn how to learn from experience.35 the importance of helping students become independent learners with the ability to engage in effective self-reflection has long been recognized by legal educators in the united kingdom. the current benchmark standards as well as the draft statement of benchmark standards for law in england, wales, n. ireland36 and in scotland37 include "autonomy" and "ability to learn" among the abilities that all undergraduate law students must demonstrate before graduation. 5. autonomy and ability to learn: a student should demonstrate a basic ability, with limited guidance • to act independently in planning and undertaking tasks in areas of law which he or she has already studied; • to be able to undertake independent research in areas of law which she or he has not previously studied starting from standard legal information sources; • to reflect on his or her own learning, and to seek and make use of feedback. 18. autonomy and ability to learn: this is perhaps the key feature of graduateness. the ability to learn and make use of learning in an independent fashion is generally taken to distinguish the final year student from the first year student. the learning activities required by a law school should be such that students should be required to demonstrate what they can do independently, rather than just demonstrating that they have learnt what they have been told. this can be demonstrated by the structure of a particular module. for example, all students may be required to study a module without lectures and which requires them to prepare material for individual seminars, not all of which is directed by the teacher. this could provide a basis of evidence on whether individual students are able to learn on their own with minimal guidance. (emphasis added) minimal guidance: obviously, an independent learner will need some support and some broad structure within which to operate. the extent of guidance required will depend on a student's stage of development in the field and the complexity of the material. however, by the honours stage the 18 journal of clinical legal education august 2006 35 anthony amsterdam, professor, new york university school of law, address at the deans' workshop conducted by the aba section of legal education and admissions to the bar (january 23, 1982) (unpublished). 36 quality assurance agency for higher education, draft statement benchmark standards for law (england, wales, n. ireland), http://www.qaa.ac.uk/academicinfrastructure/bench mark/evaluation/law.asp (last visited july 12, 2006). 37 quality assurance agency for higher education, draft statement benchmark standards for law (scotland), http://www.qaa.ac.uk/academicinfrastructure/bench mark/evaluation/law.asp (last visited july 12, 2006). teacher input should indeed be small. the independent undergraduate should be able to take the initiative to seek support and feedback. ability to reflect critically: a student should be able not only to learn something, but to reflect critically on the extent of her or his learning. at a minimum, a student should have some sense of whether s/he knows something well enough or whether s/he needs to learn more in order to understand a particular aspect of the law.38 the draft statements also define the level of performance expected at the vocational level as follows: can act independently in planning and managing complex tasks with limited guidance within a defined framework; able to identify own resources; can reflect on own learning; can seek and make use of feedback.39 while autonomy and ability to learn are described as "perhaps the key feature of graduateness" for undergraduate law students, it is also important for lawyers to continue developing these attributes at all levels of legal education and throughout their careers. autonomy and ability to learn are skills that can be developed in any type of law school course, but experiential education courses are particularly well-suited to this purpose. in his 1982 remarks, tony amsterdam said: the students who spend three years in law school will next spend 30 or 50 years in practice. these 30 or 50 years will be a learning experience whether we like it or not. it can be, as conventional wisdom has it, merely a hit-or-miss learning experience in the school of hard knocks. or it can be a mediated and systematic learning experience if the law schools undertake as part of their curricula to teach students techniques of learning from experience. clinical courses can do this and should focus on doing it because their very method is to make the student's experience the subject of critical review and reflection.40 as amsterdam points out, students are unlikely to develop fully their ability to learn from experience during law school, particularly in systems of legal education such as the united states' where legal education only lasts three years before a person can obtain an unrestricted license to practice law. no matter how long it takes to become a lawyer, however, lawyers continue to develop problem-solving expertise throughout their careers. the ability to learn from experience is, therefore, an important life-long skill for lawyers to acquire. at the outset, therefore, it seems that helping students further develop their autonomy and ability to learn should be an articulated goal of all clinical courses, simulated and real life. one can only speculate about the percentage of clinical courses that articulate this as a goal and consciously pursue it. for our purposes, we will assume it is a goal, and turn our attention to how one might assess our success in achieving it. can we assess what we purport to teach in clinical law courses? 19 38 benchmark standards, england, supra note 36, at guidance note for law schools on the benchmark standards for law degrees in england, wales and northern ireland, items 5 & 18. 39 id. at app. a (illustration of possible modal statements, autonomy). 40 amsterdam, supra note 35. as mentioned above, the benchmark standards suggest that a basis of evidence on whether individual undergraduate students are able to learn on their own with minimal guidance could be provided by requiring students "to study a module without lectures and to prepare material for individual seminars, not all of which is directed by the teacher." similar opportunities can be afforded students in clinical courses. students could be assigned to teach portions of classroom meetings in simulation, in-house, and externship courses. while this might enable students to demonstrate some skills, it does not enable them to demonstrate an ability to learn from experience, certainly not from the experience of law practice. two preliminary issues are presented. the first is that students at every level of professional training will have a range of skill levels. this means that some students will probably exceed the level of proficiency required at a given level of professional training and others will not. some students will, therefore, require more opportunities and assistance to reach an acceptable level. the second issue is how to define the desired level of proficiency at each level of professional training. these are issues beyond the scope of this paper, but critical for assessment. clinical courses, especially courses in which students represent actual clients, are well-suited for giving students opportunities to demonstrate and develop the ability to work autonomously. students who are ready or nearly ready for law practice will take charge of their cases, and show up in their supervising lawyers' offices after accomplishing what they can do on their own and with clear ideas about what help they need before going forward. their files will be organized, and tasks will be completed before they are due. other students will need more help figuring out what needs to be done, what they should do on their own, and when and how to seek assistance. instructors must monitor their work carefully and spend time helping students understand the level of autonomy they should exercise in professional settings. how might one conduct a summative assessment of autonomy at the end of a course of study? it may not be possible, even if we had the resources to assign similar legal problems to all students and observe them at work. one might consider giving students a set of facts from an initial interview, then asking the students to describe the initial steps they would take toward resolving the problem (or even to perform the tasks they would undertake on their own), and they could be asked to describe what more they would need before going forward and how they would try to obtain it. turning now to assessment issues related to the ability to learn from experience, it is once again difficult to conceptualize how to describe the level of skill expected at each stage of professional training, and it is clear that students' skill levels will vary. if we assume that an instructor is consciously trying to assess a students' ability to learn from experience, one might begin by applying ken kreiling's methodology. kreiling was among the first to help us understand that the most effective way to learn from experience is to use "theories of practice" to develop and articulate "espoused theories of action."41 "theories of practice" provide a basis upon which students can evaluate behaviors they observe and their own performances. these theories may involve information about how lawyers should conduct themselves, how certain aspects of the judicial system should work, or whatever else is relevant to the educational objectives of the course. "theories of action" explain how a student hopes to perform in a 20 journal of clinical legal education august 2006 41 kreiling, supra note 30, at 286. lawyering situation, for example, to build a close and trusting relationship in an initial client interview, to use only leading questions during a cross examination, to be flexible about means and rigid about goals in negotiation. following a performance, the espoused theory of action can be compared to the behavior actually exhibited, the "theory in use."42 if the comparison discloses that the student was ineffective in applying the espoused theory of action, the student and the teacher can analyze what caused the ineffectiveness the quality of the espoused theory; the student's skills, values, or knowledge; or some other factor. thus, we should first help the student learn theories of practice, that is, how a particular task should be done. then, make sure the student has articulated a plan for how the student intends to perform a particular skill. after the performance is finished, discuss with the student how the actual performance related to the planned performance. finally, analyze why any differences existed and what the student would try to do differently the next time. these discussions would not be limited to the technical aspects of performances. they could also include ethical, moral, and affective issues. the conversations with students might occur in one-on-one or group meetings. once students understand the method of analysis expected, the instructor might simply ask, "what did you learn from your [trial, interview, phone conversation, meeting with opposing counsel, and so forth]?" instructors could also ask students to write reflective journals in which they organize their thoughts about their experiences and describe what they learned from them. the quality of the information produced by such approaches may be affected by a student's reluctance to discuss certain lessons learned, even if the student in fact is aware of them and benefitted from them. to reduce this risk, it is important to ensure that students understand that a goal of the course is to help them learn from experience, the instructor will be evaluating their skill level, and the kinds of information that will demonstrate whether the student is or is not demonstrating a sufficient level of skill. even then, such assessments may not be reliable or valid. perhaps the only valid and reliable method to evaluate their abilities to learn from experience would be to follow our students into practice for a period of time. perhaps even that would not work. it may not be possible to develop valid and reliable summative assessments of some of our desired outcomes, and autonomy and ability to learn may be among these. we can, however, determine whether our students understand how to apply theories of practice to concrete situations. there are a variety of ways we could do this. a simple test would be to describe a task to be performed and ask the student to articulate several "espoused theories" of how the task should be performed. another way would be to show a videotape of a lawyer's performance and ask the student to evaluate it in light of theories of practice that were studied during the course. or both of these techniques could be combined. while success on these tests would not conclusively establish a student's ability to learn from experience, failing these tests would indicate that the student has not yet developed these skills. assessing a student's autonomy and ability to learn is problematic in clinical courses that assign letter grades, which is common practice in the united states. unless a valid summative assessment can be devised and administered, one is forced to decide whether to give the highest grades to can we assess what we purport to teach in clinical law courses? 21 42 id. at 291-97. students who come into the course with highly developed skills and perform better throughout the course or to give the highest grades to the students who demonstrate the greatest improvement during the course. in criteria-referenced courses, on the other hand, the question is whether the student passes or fails, or perhaps deserves honours. theoretically, improvement should be irrelevant, although as a practical matter it is difficult to ignore. 3. the ability to establish rapport in an initial client interview. one of the most common tasks that lawyers perform is the initial meeting with a potential client. this is an important meeting because it is the basis upon which the lawyer and client decide whether to form an attorney-client relationship and it sets the stage for the lawyer's initial work on the case. assessment criteria for evaluating lawyer-client communication skills, beginning with client interviewing, are being developed in an on-going project by faculty at georgia state university school of law, the glasgow graduate school of law, and the dundee medical school.43 the project is taking the components of effective client interviewing skills and breaking them down into discrete segments with descriptions of various levels of proficiency. hopefully, more collaborations like the glasgow/georgia state project will lead to the development of additional rubrics and a growing consensus about what we should be teaching students and how we can measure our success. establishing rapport with a potential client is an important goal of a lawyer conducting an initial client interview. if a lawyer cannot establish rapport with a potential client, the client may decide to hire another lawyer, the client may not feel comfortable being open and honest with the lawyer, and fee collection might become difficult. "'[r]apport' means mutual trust. clients must trust you in order to open up and be candid."44 "rapport" also "connotes a certain personal regard between you and the client, though this regard is not necessarily the same as friendship. rather, the rapport one seeks is one of genuineness and respect, the client knows you care about and respect the client as a person and the client returns those feelings."45 establishing rapport seems to come more naturally for some people than for others. how might clinical teachers assess the ability of a student to establish rapport with a client? the most common method is to observe a student conducting a real or simulated interview. we form our own opinions of the student's success, and we can seek the student's and client's opinions. the use of "standardized clients" is a key part of the methodology being used in the georgia state/glasgow project.46 the clients are trained to provide consistent information in interviews, and they play the role of the client for multiple students. following the interview, the simulated clients are asked, among other things, to evaluate the degree to which the students achieved the goal of establishing rapport. 22 journal of clinical legal education august 2006 43 karen barton et al., do we value what clients think about their lawyers? if so, why don't we measure it?, paper presented at the ucla law/university of london sixth international clinical conference (oct. 28, 2005), available at http://www.law.ucla.edu/docs/barton__cunningham __jones__maharg-_what_clients_think.pdf. 44 robert m. bastress and joseph d. harbaugh, interviewing, counseling, and negotiating 67 (1990). 45 id. at 66. 46 the use of standardized clients is modeled after the medical profession's use of the objective structured clinical examination (osce), a timed multistation examination using standardized patients to simulate clinical scenarios. epstein & hundert, supra note 6, at 230. deciding how to describe the level of rapport-building skill that should be achieved at each level of professional training is a difficult problem. in the georgia state/glasgow project, points for rapport building were awarded on the following scale: 1-2 points: lawyer was bored, uninterested, rude, unpleasant, cold, or obviously insincere. 3-4 points: lawyer was mechanical, distracted, nervous, insincere, or used inappropriate remarks. 5 points: lawyer was courteous to you and encouraged you to confide in him or her. 6-7 points: lawyer was generally attentive to and interested in you. 8-9 points: lawyer showed a genuine and sincere interest in you. there was a sense of connection between you and the lawyer. these points were added to points awarded for other aspects of the interview to determine if a student passed or failed. instead of basing the pass/fail decision on the total point score, one could require a minimum level of achievement on each component that is separately scored. for example, one could reasonably argue that a student who scores only 1-2 points for rapport building should not be allowed to pass, no matter how many other points were earned for the overall interview. people could also have differing opinions about the degree of proficiency that lawyers should be required to demonstrate before being fully licensed, that is, whether the pass mark should be set at the 5, 6-7, or 8-9 point level. and what level of proficiency should we require of a law student who is conducting an initial interview for the first or second time? perhaps we should concede at the beginning that we cannot validly or reliably assess a student's ability to establish rapport with a client. even when we use a hypothetical problem with a welltrained standardized client, it is still a make believe situation. the feelings of trust, etc., between the client and the student may or may not be real feelings, but they are not formed in a true attorney client relationship where the existence or nonexistence of rapport would have real consequences. thus, the assessment would not be completely valid. in a real life client clinic, we could try to measure the degree of rapport between students and real life clients, but we could not measure the same client's feelings of trust toward each student, because each student would have a different client. thus, the results would not be reliable. even if we cannot accurately determine the degree of rapport that a student can establish with a client, we can measure whether and how well a student employs techniques that, in theory, will build rapport, and how well a student avoids words and actions that would hinder it. these techniques47 might include such things as: -be friendly. -stand up to greet the client warmly and personally. can we assess what we purport to teach in clinical law courses? 23 47 this list was compiled from the following sources, robert f. cochran, jr., john m.a. dipippa, and martha m. peters, the counselor-at-law: a collaborative approach to client interviewing and counseling 29-106 (2d ed. 2006); stefan h. krieger and richard j. neumann, jr., essential lawyering skills (2d ed. 2003); robert m. bastress and joseph d. harbaugh, interviewing, counseling, and negotiating 59-232 (1990); david a. binder and susan c. price, legal interviewing and counseling: a client-centered approach 6-123 (1977). -engage in appropriate ice-breaking talk before the interview. -have a comfortable and inviting office. -give the client your full attention; avoid interruptions during the meeting. -give the client an immediate opportunity to explain why the client is there and how the lawyer can help. -attend to any immediate questions or other needs of the client. -explain the purpose and structure of the meeting, including any costs. -listen to the client without being judgmental. -use verbal and nonverbal communication facilitators, such as arranging the office so that there is no physical barrier between the lawyer and the client, employing good body language, and using active listening techniques.48 -avoid or adjust for communication inhibitors such as ego threat, case threat, etiquette barriers, trauma, perceived irrelevancy, and greater need. -employ a structure for organizing the discussion. -appear confident and competent. -appear empathetic and concerned about the client's problem. -ensure before the meeting ends that the client knows when to expect the next contact with the lawyer and what the client and the lawyer are to do before then. of course, this raises the question of whether some techniques are more important or effective than others, that is, should a student's success employing certain techniques be weighted more heavily in our assessment of the student's rapport building skills? this is a topic worthy of empirical research by clinical teachers. the most effective assessment method, of course, would be to observe new lawyers in actual practice over a period of time and with a variety of clients who would be questioned by the assessor throughout their relationships with the lawyers. in an academic setting, the most effective method is probably to observe and record students' meetings with clients, and discuss with them the extent to which they believed rapport was established and how well the student employed rapport building techniques, that is, to compare theories of practice with actual performance. additional discussions would occur after faculty, students, and clients review the recording of the interview, and perhaps after the student drafts a reflective self-evaluation memo. due to resource constraints in the real world, clinical teachers use variations on the performance, discussion, reflection method, for example, by using students to play the clients, using people other than the instructor to provide feedback, only having one meeting, not recording the interview, and so forth. most of these feedback sessions are formative assessments, though they are often formative and summative in united states schools because some clinical teachers assign grades to every student performance. although i once did the same thing, i have come to doubt the fairness of this practice and the validity of any grade assigned to a single performance by a single observer. feedback should be formative until the student has had an opportunity to study and practice the required task. some students will demonstrate good practice skills in their first performance, but 24 journal of clinical legal education august 2006 48 additional facilitators are discussed in binder & price, supra note 47, at 14-18. those who do not should not suffer a grade penalty because other students came into the course with more highly developed skills or knowledge. instead, students who have not demonstrated an adequate level of proficiency should be required to continue practicing that task until the desired level of proficiency is achieved. helping all students achieve an appropriate level of rapport building proficiency for that stage of their professional development should be our goal, not simply measuring which students are better at certain tasks than others. ideally, we should conduct summative assessments at the end of the unit of study. very few schools could afford to use actual client interviews for summative assessments. we should therefore consider whether we can create an end-of-the-course summative assessment that does not involve an actual performance of an initial interview. one idea would be to show a videotape of an interview to a student and ask the student to evaluate the skill with which the lawyer on the tape employed effective or ineffective techniques. this would not indicate the ability of the student being evaluated to establish rapport, but it would evaluate the degree to which the student can observe a performance and analyze it in light of theories of practice about establishing rapport. asking a student to analyze a transcript of an interview could produce some indication of the student's knowledge about theories of practice as well as his or her ability to analyze the performance of the task. even multiple choice questions could produce valid and reliable data about a student's knowledge of theories of practice related to rapport building. of course, even if a student demonstrates knowledge of why rapport building is important and what might impede or enhance rapport building, this does not necessarily predict how the student will actually perform. we assume, however, that students who have this knowledge are more likely to perform adequately than students who do not. why else are we producing books and videos about rapport building? 4. a commitment to seeking justice. we may have some educational objectives that cannot be measured or that we do not want to measure. many clinical teachers believe that an important objective of clinical courses is to teach our students about the values of the legal profession and to instill in them a commitment to conform their law practice to those values.49 all professional values deserve attention by law schools, but teaching students to strive to seek justice may be the most important goal of all. andrew boan concluded that "[t]he integration of skills and knowledge should assist practitioners in achieving the good of legal professions; achieving justice. the development of virtues consistent with this social good must be a central goal of legal education."50 richard burke reached similar conclusions: can we assess what we purport to teach in clinical law courses? 25 49 the global alliance for justice education (gaje) was created to promote justice education by law schools and ngos. membership in gaje is free. for more information about gaje including how to join, visit the gaje website, http://www.gaje.org (last visited august 4, 2006). 50 andrew boon, "history is past politics: a critique of the legal skills movement in england and wales", in transformative visions of legal education 151, 154-155 (anthony bradney & fiona cownie eds., 1998), published simultaneously in 25 j. law & soc. 151 (1998) (citing ronald dearing, the national committee of inquiry into higher education, report of the national committee (1997)). truth, justice, and fairness, both in means and ends, are paramount on the scale of legal values, and when those are at stake, the other values must yield.51 . . . . . first, we should say that truth and justice are our goals; that, though we may never find totally objective truth or achieve perfect justice, we will seek and strive for them to the best of our professional ability. second, we should make clear that this quest for truth and justice is a professional responsibility upon which rests the reliability and integrity of the entire legal system. hence, an individual client's desires and objectives must be subordinate to that quest. third, our rules of conduct should specifically prohibit lawyer or lawyer participation in lying, falsification, misrepresentation, or deception in every aspect of practice from courtroom advocacy to office consultation and practice.52 calvin woodward believed that teaching students to seek justice should be the central focus of legal education. woodward considered the impact of the centuries-long process of secularization and concluded that this process had undermined the influence of religion and discredited legality as a social sanction, especially in western democratic societies. he also determined, however, that "the course of secularization has been led, almost without exception, by men seeking substantial justice. and therein lies the clue a straw in the wind for modern law schools. in a world populated by ultra-rational men, law must find its strength in justice, not legality."53 woodward called on law schools to train students to regard themselves as agents of justice as well as officers of the court. law schools must rid themselves of the vestiges of mysticism that, in days past, held laymen in awe of law and legality; and students must be trained to regard themselves as agents of justice as well as officers of the court. more important, they must be shown precisely what this responsibility entails. and establishing a course of instruction that will serve this purpose should be the great issue with legal education today.54 woodward proposed two governing maxims for law schools. "first, within the house of the law there are many mansions in which practitioners of all kinds, counsellors, judges, public servants, scholars and philosophers work in their several ways to further the course of, and to implement, justice. second, legal education, as an adjunct of justice, must start with the proposition that the greater includes the lesser, the higher the lower, and not vice versa. that is, law schools must assume, as their basic premise, that the man who first understands his obligations to justice will be better able to fulfill his legal 'function,' whatever it might be. justice, in a word, must take precedence over law."55 in light of the importance of instilling a commitment to justice in all law students, it is easy to conclude that every clinical course should make this an explicit educational objective and make every effort to design our courses to accomplish this goal. having said this, however, we should 26 journal of clinical legal education august 2006 51 richard k. burke, ""truth in lawyering": an essay on lying and deceit in the practice of law", 38 ark. l. rev. 1, 22 (1984). 52 id. at 3-4. 53 calvin woodward, "the limits of legal realism: an historical perspective", in herbert l. packer and thomas ehrlich, new directions in legal education 329, 380 (1972). 54 id. 55 id. at 381. recognize that it is difficult to define justice much less to know with any certainty what is and is not justice in real world situations. assuming we can resolve these issues satisfactorily, is it possible to tell if our efforts are having the desired impact? can we assess our students' commitment to justice without following them into practice and tracking what they do with their careers? lawyers have different degrees of commitment to justice. is there a way to describe the minimal level of commitment that all lawyers should have before being fully admitted to practice? can we describe levels of commitment to justice that students should have at each stage of their professional development? this is probably unlikely. what assessment tools might produce any information about a student's commitment to justice? i concede that i do not have very good answers. in clinical courses, especially real life clinics, we can observe students working on cases and listen to what they say about justice-related issues. this may be the best indicator of a student's feelings and beliefs about justice. we could assess our students' knowledge and understanding of justice-related topics. this could produce valuable data. one could reasonably conclude that a student who has never considered what "justice" is, how injustices can destroy people and societies, or why it is important for lawyers to have a commitment to justice, are less likely to have or develop a commitment to justice than students who have these understandings. we could acquire valid and reliable information about our students' "justice knowledge" through written tests, including essays by students demonstrating their understanding of the importance of seeking justice and role of each individual lawyer in providing access to justice. we could also provide students with scenarios based on our clinics' or other cases and ask them to identify injustices in those scenarios and to discuss how lawyers contributed to the injustices or might contribute to resolving them. it might provide useful information about the effectiveness of our instruction to conduct such assessments at the beginning and end of clinical courses that seek to instill a commitment to justice in their students. in the final analysis, it is difficult to imagine that we would ever refuse to pass a student for not developing a commitment to justice or an "adequate" level of commitment. would we assign grades/marks to students on the basis of their commitment to justice or is this a desirable educational outcome that should have a formative, but not a summative, assessment? we may not even want to share our conclusions about a student's commitment to justice with the student, even if we could acquire valid and reliable data. perhaps, we should only use it to evaluate the effectiveness of our instruction. my only point in this section is that if clinical teachers continue to claim that our educational objectives include instilling a commitment to justice or otherwise developing our students' professional values, we need to think very carefully about what we intend to teach about these matters and how or whether we will try to measure our success. can we assess what we purport to teach in clinical law courses? 27 conclusion this article raises more questions than it answers. some things are clear, however: assessments are important to students and institutions. assessments should be as reliable, valid, and fair as possible. we need to be very precise about our educational objectives. we need to articulate our assessment criteria and communicate them to our students. we should not profess that students will learn something in our courses if we cannot assess whether such learning occurs. there are probably some outcomes that legal education would like to accomplish that cannot be assessed adequately. we may need to distinguish between desired outcomes and measurable outcomes. the conclusions on this issue in the report of the project to map best practice in clinical legal education in the united kingdom are very insightful. for anyone reading this report thinking of setting up a program and despairing at the difficulty of identifying the objectives that really matter to them personally changing people, planting a lifelong interest in justice, etc. our experience (personal and through this research) is that you will never succeed but do not need to try. it is perhaps legitimate to settle for more mundane objectives which are recognizable within the normal academic structures or programmes. then you will not fail. this does not prevent you achieving the higher order objectives, but if you defined them and claimed to assess your achievement of them, you would face potential disappointment and a range of challenges in terms of actual assessment of students' work.56 the ultimate question we would like to answer is whether a student will practice law effectively and responsibly. unfortunately, the question is enormously complex what is "law practice" and what do "effectively" and "responsibly" mean? a student's performance in practice will depend on future circumstances that we cannot predict or control. perhaps the best that legal educators and licensing authorities can hope to achieve is to identify certain aspects of the legal knowledge, skills, and values that we believe are associated with competent law practice, and evaluate as many of these as we can evaluate with valid and reliable tools. clinical educators should be leading the way in developing innovative methods for assessing legal competence, but so far the assessment topic has not received much attention by clinical teachers in our scholarship or conferences. hopefully the next generation of clinical teachers will develop the theories and tools to make progress on this issue that my generation has largely chosen to ignore. 28 journal of clinical legal education august 2006 56 richard grimes & hugh brayne, mapping best practice in clinical legal education 14 (2004), http://www.ukcle.ac.uk/research/projects/clinic.htm l. 310229_april ed 2 inner “the convention on the rights of persons with disabilities”: the response of the clinic frances gibson* abstract the convention on the rights of persons with disabilities (crpd) which entered into force on 3 may 2008 offers the opportunity to people with a disability to press governments for change on the basis of rights accorded to them under the treaty. article 13 of the convention requires states to ensure effective access to justice for persons with disabilities on an equal basis with others. this article draws on the australian experience. the convention is particularly relevant in all states that have ratified it but can be used as an indicator of best practice by all states and organisations. up to twenty per cent of all people have a disability and all clinics may have clients, staff and students with a disability. this paper examines the parameters of the right to access to justice as it relates to the clinic and proposes a set of guidelines drawn from the literature that enable clinics to assess their current practices. * director of experiential learning, university of new south wales, email: f.gibson@unsw.edu.au. note: this article was first presented as a conference paper at the 2009 international clinical legal education conference in perth australia while the author was a senior lecturer at la trobe university. “the convention on the rights of persons with disabilities” 11 repositioning disability as an inclusive concept embraces disability as a universal human variation rather than an aberration.1 the convention on the rights of persons with disabilities (crpd) and the associated optional protocol was adopted by the general assembly of the united nations on 13 december 2006. the convention entered into force on 3 may 2008. the convention lays down broad guidelines and each state has to determine how its provisions will be implemented. each country that ratifies the convention has to submit a comprehensive report on progress to an international monitoring body within 2 years. the treaty has an optional protocol that sets up a communication procedure. this allows individuals, groups of individuals or people acting on their behalf to submit a communication to the committee on the rights of persons with disabilities (committee) alleging violations of the substantive rights protected under the crpd. the inquiry procedure under the protocol allows the committee to initiate inquiries into information indicating grave or systematic violations of the crpd by a state. parties to the convention must separately sign and ratify the optional protocol and they must be parties to the convention in order to become parties to the optional protocol.2 why a special convention? although other human rights conventions apply to people with disabilities, they have rarely been used to promote or protect their human rights. people with disabilities continue to experience widespread discrimination in healthcare, education, employment and other areas of their lives. other treaties have not addressed the social, cultural, economic, and legal barriers that prevented people with disabilities from participating in their communities and fulfilling their human rights. this treaty, the first human rights treaty to be adopted in the twenty first century, has a number of notable features in that; it involved a high level of participation by representatives of those directly concerned with the subject matter of the convention—persons with disability and disabled persons organisations3 was the most rapidly negotiated treaty ever4 the convention embodies an international movement away from a medical model or social welfare approach where people with disabilities are seen as passive recipients of services, and embraces a human rights-based understanding of disability.5 1 michael ashley stein, ‘disability human rights’ (2007) 95 california law review 75. 2 as at 2 january 2011, 97 countries had ratified the convention. australia did so on 17 july 2008 and ratified the optional protocol on 21 august 2009. 3 rosemary kayess, and phillip french, ‘out of darkness into light? introducing the convention on the rights of persons with disabilities’ (2008) 8(1) human rights law review 1, 3. 4 kayess and french, above n. 3, 2. 5 harvard law school, why a convention was needed (2009) <http://www.hpod.org/convention/why-aconvention-was-needed> at 30 may 2009. international journal of clinical legal education summer 2011 12 the text of the convention was drawn up at the united nations and disability rights advocates had an influential role at every step of the drafting process. people with disabilities represented not only themselves and their organisations, but governments as well. this was the first time that the united nations allowed civil society to take such an active part in influencing how a human rights treaty was written. in the past disability has been conceptualised through a medical model. this approach focuses on the particular attributes of a person with a disability with a view to providing treatment, or cures to help the person get as close as possible to what is regarded as a social norm.6 the social model of disability on the other hand “locates the experience of disability in the social environment, rather than impairment and carries with it the implication of action to dismantle the social and physical barriers to the participation and inclusion of persons with a disability”.7 in the past the most common approach to disability law has been what fredman8 describes as a “minority approach” whereby a class of persons is identified that is entitled to protection from discrimination and to special measures to compensate for disadvantage. fredman points out problems with this approach in: the difficulty in identifying who has a disability, that various minority classes are then competing against each other for scarce resources. another developing way of approaching disability issues is known as the universal approach. this approach recognises the fact that there is no precise social norm and humans come in an infinite variety of characteristics. impairment is seen as “an infinitely various but universal feature of the human condition”.9 a universal approach then, is aimed at providing conditions in education, employment, health care etc that will work effectively for all people regardless of personal characteristics. the crpd defines "universal design" as the design of products, environments, programmes and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design.10 this convention establishes rights, but it does not include comprehensive standards setting out how rights are to be measured. governments need to develop standards with people with disabilities, their representative organizations and other members of the community. 6 kayess and french, above n 3,5. 7 kayess and french, phillip, above n 3,6. note also their comments on critique of this model at 7. 8 fredman, ‘disability, equality and the existing anti discrimination paradigmeuropean discrimination law’ in disability rights in europe: from theory to practice (2005) 211. 9 bickenbach, minority rights or universal participation: the politics of disablement” in jones and basser marks (eds) disability divers-ability and legal change (london:martinus nijhoff 1999) 101, quoted in kayess and french, above n 3,10. 10 article 2 crpd 13 “the convention on the rights of persons with disabilities” what does this have to do with the clinic? it is clearly difficult to give an accurate figure of how many people are living with a disability. estimates range from around 10 to 20 per cent of the world's population (the world's largest minority)11. in australia it is estimated that approximately 20% of the population has a disability.12 this figure is increasing through population growth, medical advances and the ageing process. according to data from the u.s. census bureau for 2005, which was released in december 2008, 54.4 million americans were reported as having a disability—nearly one in five (19%)—with 6.5 million reporting a severe disability.13 in countries with life expectancies over 70 years such as australia, individuals spend on average about 8 years, or 11.5 per cent of their life span, living with disabilities.14 the crpd does not explicitly define disability but refers to persons with disabilities as including “those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others”.15 obviously there are also many people who by reason of accident, illness etc have impairments for short term periods. what may be called impairments can be and have been classified in many ways. categories may include: (a) physical impairments, including cerebral palsy, spinal cord injury, spina bifida, arthritis, head injury, epilepsy, multiple sclerosis, and other orthopaedic or chronic health impairments; (b) sensory impairments, which include vision, hearing, and language or communication impairments; (c) specific learning disabilities; and (d) psychiatric/addictive disorders, which consist primarily of people with long-term mental illness, but also include people with chronic alcohol and drug dependency.16 it stands to reason then, that there is unlikely to be any clinic that does not have people with a disability among their clients or among their target groups from which clients come. if clinics are representative of the population they will also have staff and students with disabilities. the diversity of possibilities means that staff of clinics have to be thinking about how to incorporate people into the clinic in all ways. disability issues have largely been hidden in clinics except in the client population or occasional student and the marginalization of disability in human rights law has been noted.17 the advent of the crpd allows clinics a framework for taking a step back and assessing their policies and practices to ensure they are in keeping with human rights. 14 international journal of clinical legal education summer 2011 11 disabled world. world facts and statistics on disabilities and disability issues <http://www.disabled-world.com/disability/statistics> at 3 january 2011. 12 abs disability aging and carers (2009) < http:www.abs.gov.au/.../29ac3ed8564fe715ca256943 002c4e3c!opendocument> at 23 july 2009. 13 american bar association commission on mental and physical disability law, ‘goal iii report 2009a report on the status of the participation of persons with disabilities in aba division, section, and forum leadership positions.’ (aba, 2009),4. 14 united nations, factsheet on persons with disabilities (2009) <http://www.un.org/disabilities/default.asp? id=18> at 6 june 2009. 15 article 1 crpd. 16 michael west et al., beyond section 504: satisfaction and empowerment of students with disabilities in higher education; section 504 of the rehabilitation act of 1973, 59 exceptional children 456 (1993). 17 janet e lord, ‘disability rights and the human rights mainstream: reluctant gate crashers’ in clifford bob (ed), the international struggle for new human rights (2009) article 13 of the crpd is of particular import to the clinic. it deals with access to justice and states that: 1. states parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages. 2. in order to help to ensure effective access to justice for persons with disabilities, states parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff. obviously clinics are not parties to the convention and are therefore not legally bound to comply with the convention but clinicians could be said to be in the business of justice and clinics should be run in accordance with human rights values and to the highest possible standard. clinics are also in a potentially influential position in respect of the training of lawyers and have the capacity to make an impact in a number of ways. there are also of course questions as to whether clinics are discriminating against students with disabilities in their courses if they do not develop policies and approaches for students with disabilities. law clinics are in a unique position at the crossroads of education and service provision. their client base often has problems accessing justice due to endemic discrimination. their students are in the formative years of their legal careers and are beginning to develop attitudes that will remain with them throughout their working lives. the convention provides a catalyst for thinking about disability issues as human rights issues and enables clinics to enrich the education of faculty and students. a catchcry of the disability rights movement is “nothing about us without us”18 and clinics must include people with disabilities in their planning and implementing changes along the lines suggested in this article. direct and indirect participants in the justice system the areas where clinics could examine their practices and approaches for compliance with the crpd and particularly article 13 are in relation to: 1. clients 2. law students 3. staff 4. the legal profession 5. the justice system a survey of relevant literature on these issues and applying these concepts to the clinic leads to 7 suggested guidelines for clinics. these provide a basic framework for clinics to assess their current practices. “the convention on the rights of persons with disabilities” 15 18 see james charlton nothing about us without us: disability oppression and empowerment. (2004). univ. of california press. suggested guidelines 1. clinics should adopt a universal approach aimed at providing conditions in their education, employment, and service programs that will work effectively for all people regardless of personal characteristics. clinics should ensure as basic measures and as a priority that their facilities incorporate universal design – in physical accessibility for instance teaching rooms with hearing loops and space for wheelchairs and other mobility devices in the main body of the room (not at the back or front), and staff and interview rooms, front counters and bathrooms, kitchens that are accessible for people with mobility impairments. currently most websites and web software have accessibility barriers that make it difficult or impossible for many people with disabilities.19 clinics should ensure that all internet and computer materials comply with accessibility guidelines so that clients students and staff can use them.20 they should ensure that their telecommunications system allows easy contact with the clinic and that the staff and students are trained to use the technology. conditions for employees and students should be flexible and allow opportunities to discuss and implement accommodations that will allow people to complete their tasks well. staff or students may need to do some work from home, or may need longer to undertake tasks or need time off for rest or medical treatment. information provided by clinics should be accessible pamphlets, staff business cards, consultation times, libraries should be reviewed to determine how they could be more accessible e.g. braille versions etc. 2. all clinical staff and students should undergo mandatory, skills-based disability awareness training. one barrier that clients, staff and students with a disability face is the non disabled staff and students in the clinic and their knowledge and attitudes. a recommendation by the disability council of nsw in relation to legal aid services that is relevant to clinics was: all staff in private and public legal services undergo mandatory, skills-based disability awareness training. this was particularly important in community legal centres (where many clinics are located) where volunteers and students support advice services. it was also important for counter staff in legal aid services and private solicitors fulfilling a legal aid duty solicitor role in criminal courts.21 all people in clinics will be working with people with a disability and the better informed they are the better they can perform their jobs. the law society of england and wales has proposed the following statement of the core general characteristics and abilities that solicitors should have on 16 international journal of clinical legal education summer 2011 19 ibid. see also gerard goggin and christopher newell, digital disability the social construction of disability in the new media (2003). 20 see for instance wc3 web accessibility initiative< http://www.w3.org/wai> 1 july 2009. 21 disability council nsw, a question of justice access and participation for people with disabilities in contact with the justice system, (2003) <http://www.disabilitycouncil.nsw.gov.au/archive/0 3/justice.html> at 1 july 2009. day one in practice…. “demonstrate the capacity to deal sensitively and effectively with clients, colleagues and others from a range of social, economic and ethnic backgrounds, identifying and responding positively and appropriately to issues of culture and disability that might affect communication techniques and influence a client’s objectives”.22 the clinic is an ideal place for these skills to be learnt. everyone in the clinic should be aware of the crpd and be encouraged to take time to reflect on what this means for clients, fellow students and the justice system generally. training where possible should be run by people with a disability and could include information about different types of disability and associated behaviour, basic etiquette and issues to do with language about disability. while language may seem to be a minor issue as mccurdy points out: there has been a great deal of debate over the years regarding the acceptable way to refer to both individuals with disabilities and the aggregate population of people with disabilities. while this debate has often deteriorated into absurdity, and distracted people with disabilities from combating more palpable sources of oppression, we have learned that in a world of hierarchy and marginalization, words do matter. newborns labelled as “defective” receive substandard care, adults marked as “incompetent” lose all autonomy, and “special needs” can mean social death.23 3. clinical staff should work with faculty on policies for getting more students with disabilities into law schools and encouraging colleagues to consider disability issues. the legal profession and the community needs lawyers with all types of disabilities. legal educators are the gatekeepers to the profession for students with disabilities studies in the usa suggest that approximately ten percent of law students possess a physical or mental disability although most law students with a physical or mental disability apparently do not self-identify.24 statistics are not available in most jurisdictions although i suspect the figure would be somewhat lower in australia. as has been pointed out ‘access and participation at all levels at schools and universities for people with disabilities still moves far too slowly’.25 it can be difficult for people with a disability to get into law schools, complete studies and get jobs as lawyers. clinicians cannot be expected to be able to achieve change in every aspect of the system but at the least could work with law school colleagues responsible for student entry into law school on looking at developing policies that will attract and make it possible for more students with disabilities to gain entry to law schools. clinics have made many efforts to ensure more indigenous and people from other cultures are represented in clinics as students and staff26 and need to do the “the convention on the rights of persons with disabilities” 17 22 the law society, second consultation on a new training framework for solicitors, § 4, ¶ 46 (sept. 2003) [law society second consultation] http://www.lawsociety.org.uk/documents/download s/becomingtfranalysisfirms.pdf at 17 july 2009.. 23 allan h mccurdy, 'disability ideology and the law school curriculum' 4 the boston university public interest law journal 443,457. 24 kevin smith, disabilities, law schools and law students: a proactive and holistic approach, 32 akron l. rev. 1 (1999),2. 25 gerard goggin and christopher newell, disability in australia exposing a social apartheid (2005), 209. 26 see falk, p & ruska, k (2006) report on indigenous australian legal clinic programs as part of the effective integration of community-based learning,and lisa pusey and frances gibson, kingsford legal centre christine forster, jill hunter, mehera san roque, sean brennan, and megan davis (2003). two programs to improve first-year indigenous law students’ retention rate and communication skills: clinical legal education and a focused tutorial program university of new south wales faculty of law < learningandteaching.unsw.edu.au/content/userdocs /fye_2003_pusey.pdf> at 4 january 2011. same for people with disabilities. we can also advocate that our law schools have good accessible facilities in buildings, lecture theatres, libraries etc.27 rethinking on the part of legal educators will not come easy. law professors, as a group, resist changes in the way that they teach. as jolly ryan points out this resistance is not surprising, given a number of factors designed to maintain the status quo in legal education. very few law professors were effective educators before setting foot in the classroom. nor is it likely that they had any formal training in education, including recognizing and accommodating their students' learning styles. however, they were successful law students and expect their own students to learn the same way that they learned in law school: through competition and rigor.28 clinical staff can assist law school colleagues to experience and understand issues about disability through seminar programs on the issue, encouraging students with and without disabilities to present aspects of their work relating to disability rights, to encourage sessions at university level to be run for staff on disability issues and through collaboration on research on legal issues that incorporate issues of disability. 4. clinics have an important role for students with disabilities and clinical staff should encourage students with disabilities to enrol in clinics. clinical lecturers should publicize the essential functions required of student lawyers in the clinic so that staff and students with disabilities can make informed decisions about their participation and work. traditionally, law school clinics have played a key role in bridging the gap between the study of the law and its practice. studies show that there are few lawyers with disabilities in practice and it is difficult for them to get jobs. students with disabilities rarely disclose their impairments because of fear of discrimination. research shows that students and graduates with disability often face significant barriers during their education, and have often never held a position of paid employment by the time they graduate. as a result, students with disability often miss out on the opportunity to develop skills and experience, build networks of contacts and develop a sense of 'job readiness' within a professional environment. this lack of work experience acts as a compounding disadvantage when it comes time for the graduate to begin their career in their chosen field. 18 international journal of clinical legal education summer 2011 27 see for instance at the university of melbourne law school where the law school has appointed a disability equal opportunity liaison officer. the primary roles of the officer are: • to address disability policy issues and to facilitate the progress of students with disabilities through the law programs. • to liaise with and support students in academic and other related matters. • to liaise between the dlu and the faculty. the law building has the following design features: • all lecture theatres have hearing loop facilities and wheelchair access. • lifts include information in braille and speaking facilities. • the floor layout includes bumps to aid the visually impaired. • toilets for disabled people are available on every level of the building. 28 jennifer jolly-ryan, 'disabilities to exceptional abilities: law students with disabilities, nontraditional learners, and the law teacher as a learner' (2005) 6 nevada law journal, 124. anderson and wylie point out “given this professional climate, it is critical that law students grappling with mental health and learning disabilities be able to use law school to help prepare them for the reality of practice.”29 buhai points out that clinical legal education provides exceptional benefits to law students in that it allows students to: (1) identify which type of law they wish to practice, (2) make connections in the legal field to foster future employment opportunities, (3) develop mentoring relationships, (4) learn many important skills, and (5) learn professional responsibility and competence. these benefits directly translate into increased opportunities for successful employment upon graduation.30 these experiences and the opportunity to experiment and prove their skills may make the difference for a student with disabilities being able to go into practice or not. law school staff should review the subjects chosen by students who are receiving accommodations before they go into clinics in order to discuss with the students whether they will disclose their disability to the clinicians, and, if so, whether an accommodation will be necessary or possible. in law schools across the world, students with disabilities receive academic accommodations in their traditional law school classes on a regular basis. however, often those accommodations do not translate easily from the classroom to the clinic. to take but one example, more time on tests does not have any direct analogy to accommodations in practice.31 harder issues to grapple with may be adjustments to our teaching practices in the clinics. how do we encourage students to disclose their disabilities in the clinic? clinical teachers lack the training to assist students with non-visible impairments even if they do elect to disclose.32 how do we work with students with disabilities in court matters? what approach do we take to matching up students and clients who may have certain expectations of their student lawyers that may not accord with reality? as jennifer jolly ryan points out: accommodations for students with disabilities result in good teaching for all students. it emphasizes that there are “many roads to learning” and reiterates a well-known principle for good teaching; good teaching requires a respect for “diverse talents and ways of learning.”33 “the convention on the rights of persons with disabilities” 19 29 alexis anderson, alexis and norah wylie, ‘beyond the ada: how clinics can assist law students with non visible disabilities to bridge the accommodations gap between classroom and practice’ (2008) 15 clinical law review 1,10 30 sande l.buhai, ‘practice makes perfect: reasonable accommodation of law students with disabilities in clinical placements’ (1999) 36 san diego law review 137. 31 anderson, alexis and wylie, norah, ‘beyond the ada: how clinics can assist law students with non visible disabilities to bridge the accommodations gap between classroom and practice’ (2008) 15 clinical law review, 3. 32 anderson, and wylie, above n 29,16. 33 jennifer jolly-ryan, ‘disabilities to exceptional abilities: law students with disabilities, nontraditional learners, and the law teacher as a learner’ (2005) 6 nevada law journal ,117. anderson and wylie suggest that to assist students, clinical lecturers should publicize the essential functions required of student lawyers in the clinic. one writer has stated her belief that there are no lawyering skills that are so fundamental to being a student attorney in a clinical program that a student has to perform all of them to be able to be in the clinic.34 this approach means the door is open for all students. anderson and wylie’s article describe a sample welcoming letter to all students which invites students to discuss any disability issues they feel relevant. clinical lecturers should disseminate information about access to accommodation and protocols for triggering disability services for student lawyers. clinical law teaching can occur either in-house at the law school clinic, in legal aid organisations or in an externship placements with government departments, private firms etc. law schools need to ensure that they can offer students with disabilities placements at organisations that can accommodate their disabilities and give them a reasonable choice as is available to other law students clinics should have clear policies to assist and encourage students. a suggested plan of action would be to draw up a list of tasks students may be engaged in at clinic and publicise this consult the university’s equity officer about ways of assisting students with disabilities to participate in these tasks talk about disability in sessions promoting clinics in the law school and in promotional material. identify and welcome students and encourage students to disclose their disability if they want to as with all students, decisions about the work allocated will be a balance of the needs of the student, needs of the clinic and needs of the clients if the student can perform the essential functions of the legal role in the clinic that should be sufficient and the clinic can work around that basis. 5. clinical lecturers should adopt a critical analysis of the law’s approach to questions of disability. mccurdy points out the: degree of invisibility faced by individuals with disabilities in the legal system. people with disabilities, if judged by the casebooks we use to educate young lawyers, play no role, have no legal interests, engender little substantive law, and need to be locked away as dangerous or vulnerable. the legal system, to be sure, reflects the society at large. invisibility is a hallmark of the disability experience…35 there are very few areas of law where disability issues are not integral when one adopts a critical eye. we should be asking questions in our teaching such as -why in some jurisdictions are charities excluded from disability discrimination laws, do migration laws deny entry to people with 20 international journal of clinical legal education summer 2011 34 jennifer gundlach in robert dinerstein, ‘assisting law students with disabilities in the 21st century brass tacks: panel 2 clinical and externship programs’ (2007) 15 american university journal of gender, social policy & the law 817 35 mccurdy, above n 23,449. disability? what are the rules around capacity of people to give evidence in courts and who do they exclude? how are disability rights covered in existing and proposed bills or charter of rights, how does disability affect employer/employee relationships and bargaining? what rules relate to disability in contract law? etc. an examination of these issues will allow students to explore the operation of the law in practice and assumptions and stereotypes on which it may be founded. this will deepen their understanding of the law and encourage better practice. 6. clinical staff should serve as a model for promoting diversity in law practice and the community, including employment of staff with disabilities. one way in which law schools can enhance their students’ abilities to deal sensitively and effectively with diverse groups of clients and colleagues is by serving as a model for promoting diversity in law practice and the community, including having in the law school community a critical mass of students, faculty, and staff from minority groups that have traditionally been the victims of discrimination.36 this is particularly important in the clinic and especially in the case of lawyers working in clinics. clinics should be promoting employment of staff with disabilities and working with barristers and other legal professionals who have disabilities or have an understanding of the issues. the legal profession the legal profession in and outside the clinic is generally unrepresentative of the disability community and most lawyers are ignorant about disability issues.37 members of the legal profession may have no understanding or lack the skills to communicate with people who have particular disabilities. unless lawyers and other spokespersons are sensitized to the needs, requirements, strengths and weaknesses of people with disabilities, they will not be good advocates for those people.38 as the organisation people with disabilities state: the scenario for many of our consumers is that of difficulty in accessing legal support and the reliance on duty lawyers who do not have the time or expertise to fully understand the impact disability may have on an individual’s ability to operate in the court the relationship between a particular disability and the ‘offending’ behaviour.39 in the usa the american bar association conducts an annual census of its lawyer members. in 2008 of the 30,400 respondents who answered the query “do you have a disability?” only 2,033, “the convention on the rights of persons with disabilities” 21 36 roy stuckey and others, best practices for legal education clinical legal education association 2007,66. 37 see for instance susan hayes people with intellectual disabilities as victims of crime – the police and judicial response. paper presented at the 39th annual conference of the australasian society for the study of intellectual disability, 9-12 november 2004, adelaide sa. 38 issues of fairness and justice in alternative dispute resolution, discussion paper, national alternative dispute resolution advisory council, canberra, november, 1997. 39 people with disabilities (wa) inc, ‘report on justice and people with disabilities in western australia’ (2001) or 6.69%, answered affirmatively. as the aba point out this percentage is far lower than one would expect given the national statistics on the percentage of americans with disabilities.40 past aba president william h. neukom has noted that “lawyers with disabilities, too, have greater difficulty getting a job after law school and have higher rates of unemployment than lawyers who do not have disabilities.”41 statistics in australia are hard to come by. in 2003 in nsw there were 18,434 solicitors and a further 12,000 or so law students. among them there were roughly 650 lawyers and law students with disclosed disabilities, but the full-time employment success rate for these people is well below the average.42 as laffan pointed out: newly qualified lawyers with disabilities are finding it very difficult to gain fulltime employment. the great achievement of having attained their degrees are muted by the fact that to take the next step to become a practicing lawyer and fully employed is continually frustrated by a reluctance of law firms to employ them. as intakes of fresh graduates are accepted by the big and small end of town those who have disabilities are left on the outside and their untapped potential is wasted.43 the law council in australia does not collect information on the numbers of lawyers or law students with disabilities. the law council's equalising opportunities in the law committee is developing a statement of diversity for the law council and this will be an over-arching policy which will encompass race, ethnicity and disability. however, this project is in its very early stages of development and it is likely the policy will not be released publicly for some time.44 jolly ryan hypothesises that the lawyer with a disability will likely have the empathy and sense of justice to serve clients and the public in an exceptional manner. the legal profession, and the society that it serves, is in need of lawyers with all types of disabilities, and it is up to legal educators in the first instance to clear the path to the profession for students with disabilities.45 as the australian employers’ network on disability state: the biggest barrier to employment faced by people with disability is the attitude of employers. changing attitudes comes down to raising awareness of disability issues, and repositioning disability as a business concern. employers can help by providing mentoring, work experience and internships for people with disability.46 22 international journal of clinical legal education summer 2011 40 aba disability diversity statistics -2009 http://www.abanet.org/disability/resources/statistics .shtml> at 1 july 2009. 41 american bar association commission on mental and physical disability law, ‘goal iii report 2009a report on the status of the participation of persons with disabilities in aba division, section, and forum leadership positions.’ (aba, 2009),6. 42 matt laffan, equal opportunity: lawyers with disabilities seek access and opportunity (2003) <http://www.mattlaffan.com.au/article_lawsocietyj ournal_082003.html> at 31 may 2009. 43 disability council of nsw, matt laffan creating opportunities for potential employees with disabilities: a personal experience (2001) at 2 july 2009 44 email from nicole pulvirenti law council of australia 1 july 2009 45 jennifer jolly-ryan above n 28 , 132. 46 australian network on disability, corporate social responsibility <http://www.and.org.au/content/ view/10/1> at 4 january 2011. programs such as the stepping into law program run by australian employers’ network on disability provide a paid internship program designed specifically for law students with disability. the program provides a “step into” practical work experience for students with disability who may otherwise face significant barriers to finding employment. major law firms and government departments participate.47 clinical staff should consider participating in such programs and making positive attempts to include staff with disabilities in clinical programs in all capacities. this will not only enrich the workplace and but also provide role models for students. 7. clinical staff should advocate to make the justice system accessible. as we all know, there are many problems people face when they need legal assistance. the complexity of the legal system is intimidating. free legal advice to avoid legal problems is often not available. lawyers are very expensive and beyond the reach of most people. there is insufficient funding for legal aid services. provision of legal aid services is generally obligatory only for criminal cases and strict eligibility criteria rule most people out anyway.48 as noone and tomsen comment “the general demand for public legal assistance in the industrialised world remains massive and mostly unmet”.49 people with disabilities will in many cases find it difficult to find out about sources of assistance, may have difficulty physically accessing services and information and may lack the confidence, experience or skill to communicate with potential advisers or advocates effectively. the nsw disability council’s survey of experiences with the justice system50 found that there are significant barriers for people with a disability trying to access information, advice or support. these barriers include inaccessible information formats; inappropriate consultation; negative staff attitudes; and lack of service continuity and that the procedures in the justice system are applied narrowly and inflexibly, to the disadvantage of people with disabilities. the financial, physical and emotional costs of legal action are major barriers. people with disabilities are less likely to be in a position to afford private legal advice and more likely to rely on the resources of community legal services, pro bono schemes, and legal aid. there is a lack of access to auslan interpreters and legal information websites are often inaccessible.51 people with intellectual or psychiatric disabilities may have their capacity to give instructions doubted. people with a disability may face additional problems in that they may not be able to physically access legal institutions such as courts or legal aid/lawyers’ offices. “the convention on the rights of persons with disabilities” 23 47 australian employers’ network on disability, stepping into law <http://www.aend.org.au/index. php?option=com_content&task=view&id=242&i temid=23> at 15 july 2009. 48 united nations development programme, programming for justice: access for all, a practitioners guide to a human rights based approach to access to justice (2005) at page 143. also see simon rice, ‘a right to legal aid; the kyiv declaration’ (2007) 32. alternative law journal 169. 49 mary anne noone and stephen tomsen, lawyers in conflict (2006), 241. 50 disability council nsw, a question of justice access and participation for people with disabilities in contact with the justice system, (2003) <http://www.disabilitycouncil.nsw.gov.au/archive/0 3/justice.html> at 1 july 2009. 51 schetzer, louis and henderson, judith, ‘access to justice and legal needs stage 1 public consultations’ (law and justice foundation of new south wales, 2003), xvi. some of the access solutions that are available in the courts include: pre-hearing orientation of the court room; formatting documents in alternative formats (for example, in large print or email for people with vision impairment); breaks and drinks of water; and accessible premises. for those with a hearing disability, the following services may be available: infra-red system for the courtroom; auslan interpreters; real-time translation (captioning); and ttys (teletypewriters). those with speech impairments may require the use of their own augmented speech equipment or just patience from the listener.52 clinicians should be advocating to make article 9 of the crpd a reality as it applies to the justice system. this article requires states to make buildings, transport, workplaces, information, communications, signage and interpreters accessible and provide other assistance and support to persons with disabilities to ensure their access to information. perhaps apart from health care, nowhere can this be more important than in the machinations of the legal system which can have such significant effects on the lives of participants. conclusion these guidelines provide a starting point for clinics that have not yet done so to improve their services both in education and community service. the advent of the convention on the rights of persons with disabilities can be the means to focus attention on these issues. law students, lawyers and other people with disabilities are leading the call for change in many areas of the justice system and it is to be hoped that clinics will be in the forefront of productive change in this area. 24 international journal of clinical legal education summer 2011 52 people with disabilities (wa) inc, above n 39. reviewed article pro bono in law schools: tracking the effect of pro bono service in an australian university law clinic francina cantatore, bond university[footnoteref:1] [1: francina cantatore (phd ma ba llb (hons) gdlp) is an associate professor at bond university, queensland, australia.] abstract it has been widely acknowledged that pro bono service in law clinics and university access to justice initiatives have a positive impact on students, especially in relation to increasing their graduate employability skills. however, little empirical evidence exists in respect of the extended benefits of pro bono service during students’ studies in relation to the students themselves once they enter the workforce, as well as data on the perceived benefits by recipients of the pro bono services. this article explores the impact of pro bono service by university students in a university law clinic from two perspectives, namely that of the graduates themselves after they enter legal practice; and that of the community members who are clients of the pro bono clinics. in the context of a pilot project dealing with these two issues, the author investigates: first, the incidence of continuing pro bono service once law graduates enter legal practice, and the motivating factors for their ongoing involvement in pro bono (or lack thereof), by surveying a group of clinic alumni of a commercial law clinic held at bond university; and second, the perceived benefits reported by clients of the same law clinic over a period of approximately five years. i introduction despite all the reported benefits which university pro bono[footnoteref:2] law clinics provide for law students, such as experiential learning opportunities and a demonstrated increase in employability skills,[footnoteref:3] there is a lack of empirical data in relation to the extended benefits of pro bono service during students’ studies in relation to the students themselves, as well as perceived benefits by the recipients of the pro bono service. whether early career pro bono work encourages students to undertake pro bono service once they enter into legal practice, and their motivations for doing so, remains an unexplored area of legal practice research in australia. an article by bartlett and taylor examined the personal values and private motivations of legal practitioners who engage in the provision of legal services pro bono publico,[footnoteref:4] by analysing the results of a 2014 empirical study of lawyers in queensland, australia, who regularly undertook pro bono work. the findings suggested strong moral and professional motivations for engaging in pro bono legal practice, as well as a distinct ‘community of practice’ of large law firms in forming and sharing sophisticated structures and approaches to addressing social justice needs.[footnoteref:5] in contrast, a 2015 uk study by mckeown found that most law student respondents undertook pro bono service for their personal benefit, valued skills development and their employability more than altruistic benefits of the work.[footnoteref:6] he subsequently acknowledged that,[footnoteref:7] whilst some studies show that there is little or no impact of clinical and pro bono programs on students’ desire to continue to provide pro bono services upon graduation, there are other studies that suggest the experience can have a positive impact on students and their willingness to partake in public service work.[footnoteref:8] [2: in defining ‘pro bono’ the study applies the definition of “the provision of legal services on a free or significantly reduced basis” (see ‘information on pro bono’, australian pro bono centre (web page) <https://www.probonocentre.org.au/information-on-pro-bono/>), which includes pro bono law clinics held on a university campus, where students volunteer under the supervision of qualified legal practitioners in the provision of free legal services to disadvantaged or vulnerable clients. the bond law clinic held at bond university fits the description of a pro bono law clinic in this context.] [3: see 2018 study by cantatore, f. ‘the impact of pro bono law clinics on employability and work-readiness in law students’ (2018). 25(1) international journal of clinical legal education 147-72.] [4: bartlett, f. & taylor, m. ‘pro bono lawyering: personal motives and institutionalised practice.’ (2016). legal ethics, 19(2): 260-280 <https://doi.org/10.1080/1460728x.2016.1247632>.] [5: ibid, (2016) (n.4), pp.260. ] [6: mckeown, p. ‘law student attitudes towards pro bono and voluntary work: the experience at northumbria university’ (2015). international journal of clinical legal education 22(1): vi.] [7: mckeown, p. ‘pro bono: what’s in it for law students?’ (2017). 24(2) international journal of clinical legal education 43 (‘pro bono’).] [8: ibid, (2015)., pp.48-9.] there is equally little data available on the perceived benefits of university pro bono clinics by their clients. in australia, the australian pro bono centre (apbc) tracks the pro bono hours spent by signatories to an ‘aspirational target’ of 35 hours per lawyer per year but does not provide any data on the clients serviced. in fy 2018 there were approximately 12,000 signatory lawyers and law firms to the target, who reported undertaking slightly less than 415,000 hours of ‘pro bono legal services’, down by 5379.6 pro bono hours (1.28%) from fy 2017.[footnoteref:9] the apbc acknowledges in its report that more research on “identifying and developing the necessary framework/s for evaluating pro bono legal work” is needed to “inform and support the centre’s policy development and advocacy.”[footnoteref:10] [9: australian pro bono centre (apbc), annual report 2017-2018 (report, 2018) 17 <https://www.probonocentre.org.au/wp-content/uploads/2018/12/apb_annualreport-2018-final-interactive-1.pdf>.] [10: ibid, (2018)., pp.33.] this pilot project firstly tracks the impact of pro bono service by university students in a university law clinic after they enter practice. this is done by examining the experience of a group of alumni of bond university in relation to their university based pro bono legal experience in a commercial law clinic, and their continuing interest (or lack thereof) in undertaking pro bono work once in practice, by investigating their motivation for involvement once in practice. secondly, it considers the perceived benefits by members of the community who received assistance from the clinic, over a period of approximately five years. in conclusion, it considers, through the empirical and qualitative data obtained through online surveys, the perceived benefits and effects of pro bono services delivered in the context of a university law clinic. ii the student pro bono experience in context pro bono in law schools in discussing the student pro bono experience it is important to draw a distinction between the concepts of clinical legal education (cle) and pro bono,[footnoteref:11] acknowledging that not all university cle experience is pro bono related, and conversely that not all pro bono experience is conducted within the ambits of cle. it has previously been noted that although there is some overlap between cle and pro bono programs, they have generally been regarded as “separate and distinct entities”.[footnoteref:12] the australian law reform commission (alrc) has defined pro bono work as “legal services provided in the public interest by lawyers for free or for a substantially reduced fee”.[footnoteref:13] the apbc similarly applies the definition of “the provision of legal services on a free or significantly reduced basis”.[footnoteref:14] however, it has been argued that pro bono initiatives need not exclude a strong learning and teaching focus, and that practical legal skills and ethics, as well as social responsibility, can be taught effectively within a pro bono teaching clinic with a commercial law focus.[footnoteref:15] moreover, there sometimes exists an overlap in instances where both enrolled students and student volunteers are accommodated as interns.[footnoteref:16] in such cases, enrolled students will generally be required to meet course requirements for academic credit whereas volunteers do not have the same obligations. [11: see mccrimmon, l. ‘mandating a culture of service: pro bono in the law school curriculum’ (2003). 14(1) legal education review 53, 54–7.] [12: ibid, (2003).] [13: australian law reform commission, managing justice: a review of the federal civil justice system (report no 89, 17 february 2000) 304 <https://www.alrc.gov.au/report-89>.] [14: apbc, australian pro bono centre (web page) <https://www.probonocentre.org.au/information-on-pro-bono/>).] [15: cantatore, f. ‘boosting graduate employability: using a pro bono teaching clinic to facilitate experiential learning in commercial law subjects’ (2015). 25(1) legal education review 147-172 (‘boosting graduate employability’).] [16: such as the flinders legal advice clinic at flinders university, see <https://fusa.edu.au/legal-clinic/>.] it may be argued that, regardless of whether students engage in pro bono work for academic credit or on a volunteer basis, they are generally engaged in real client contact with disadvantaged or marginalised members of the community who qualify for pro bono advice, and thus are engaging in a pro bono initiative. in the context of this article, the pilot study focuses on a university law clinic which applies the accepted apbc definition of pro bono,[footnoteref:17] and facilitates personal contact between students and qualifying small business and non-for-profit clients on a volunteer basis (i.e., not for academic credit). [17: apbc, australian pro bono centre (web page) <https://www.probonocentre.org.au/information-on-pro-bono/>)] this approach is in line with the key objectives in promoting pro bono engagement by law students, identified by corker, namely: · to develop and nurture a commitment in law students to practice law in a way that promotes justice and fairness for all, particularly the poor and disadvantaged members of society. · to provide legal services that benefit poor and disadvantaged members of society. · to introduce law students to the workings of the legal profession and to meet, observe and work with practising lawyers involved in public interest work. · to assist students to develop interpersonal skills in a professional environment. · to provide students with practical experience in research, writing and advocacy in a legal environment.[footnoteref:18] [18: corker, j. ‘how does pro bono students australia (pbsa) fit with clinical legal education in australia?’ (2005). (conference paper, international journal of clinical legal education conference and australian clinical legal education conference, 13–15 july 2005) 7 <https://probonocentre.org.au/wp-content/uploads/2015/09/ howdoespbsafitwithcleinaustralia.pdf>.] there are studies evidencing the increase of practice-based skills in law clinic students, such as the ability to engage with and interview ‘real clients’ and deal with ‘real cases’, thereby developing their self-confidence and professional communication skills.[footnoteref:19] a 2014 uk study showed that pro bono and law clinic work are increasingly becoming part of the legal curriculum in law schools.[footnoteref:20] similarly, in the us, canada and australia there has been a long history of cle, including pro bono clinics,[footnoteref:21] which have focused on practice-based skills development in students. a recent study by blandy,[footnoteref:22] carried out at the university of sheffield school of law, on employability and pro bono participation by students found that out of the alumni respondents, 86% indicated that the pro bono work had assisted them in securing either a placement, employment or promotion.[footnoteref:23] [19: cantatore, f., ‘the impact of pro bono law clinics on employability and work-readiness in law students’ (2018) 25(1) international journal of clinical legal education 147-72., pp.162.] [20: dignan, f., grimes, r. & parker, r. ‘pro bono and clinical work in law schools: summary and analysis’ (2017). 4(1) asian journal of legal education 1, 10.] [21: ibid, (2017)., pp.14.] [22: blandy, s. ‘enhancing employability through student engagement in pro bono projects’ (2019). 26(1) international journal of clinical legal education 7.] [23: ibid, (2019)., pp.33.] the development of ‘soft skills’ such as emotional intelligence, collaboration and communication, has gained importance in a changing employment landscape as the use of technology redefines the future needs of the workplace.[footnoteref:24] law clinics provide students with opportunities to foster these attributes.[footnoteref:25] [24: davey, t. et al (eds.). future of universities thoughtbook (2018). pp.67.<http://futureuniversities.com/>.] [25: cantatore, f., ‘the impact of pro bono law clinics on employability and work-readiness in law students’ (2018) 25(1) international journal of clinical legal education 147-72., pp.168. ] another desirable outcome of active participation in pro bono work undertaken in law clinics is that it will cultivate a sense of altruism in law graduates, which would ideally be carried over into their work ethic as lawyers.[footnoteref:26] however, mccrimmon cautions against the expectation that empathy will necessarily follow through into the work environment.[footnoteref:27] similarly, babacan and babacan recognise that undertaking pro bono work can enhance lawyering skills, but caution that it does not necessarily translate into a long-term commitment to providing pro bono services after graduating.[footnoteref:28] they attribute this to the fact that there are generally little or no mechanisms after doing pro bono work during law school to reflect on the experience, nor is it effectively integrated into law school, in the same way as cle is integrated.[footnoteref:29] significantly, only one out of five birmingham student publications,[footnoteref:30] reflecting on participation in the birmingham law school pro bono group, cited involvement in “access to justice” and “social justice” as the most compelling rewards of her pro bono experience. the other four students perceived other benefits, which included “the guidance of experienced solicitors”, “building emotional intelligence”, “being exposed to clients from different walks of life” and employability as the most rewarding aspects of their pro bono service.[footnoteref:31] in contrast, an australian study by taylor and cappa highlights social justice considerations in pro bono,[footnoteref:32] and argues that pro bono work by law students is a form of service learning as it places them in relationships of service to their communities, which increases a sense of social responsibility.[footnoteref:33] [26: cantatore, f. ‘boosting graduate employability: using a pro bono teaching clinic to facilitate experiential learning in commercial law subjects’ (2015) 25(1) legal education review 147-172., pp.155.] [27: mccrimmon, l. ‘mandating a culture of service: pro bono in the law school curriculum’ (2003) 14(1) legal education review 53, pp.68.] [28: babacan, a. & babacan, h., ‘enhancing civic consciousness through student pro bono in legal education’ (2017). 22(6) teaching in higher education 672, pp.688-9.] [29: ibid, (2017)., pp.688-9.] [30: see johnson, b. ‘five benefits i got from doing pro bono’ (2016). (working paper series 04/2016, centre for professional legal education and research, november 2015) <epapers.bham.ac.uk/2171/1/cepler_working_ paper_4_2016.pdf>; and ballagun, g., et al., ‘reflections on participation in the birmingham law school pro bono group’ (2017). (working paper series 04/2017, centre for professional legal education and research) <epapers.bham.ac.uk/3068/1/cepler_working_paper_4_2017.pdf>.] [31: ibid, (2017).] [32: taylor, m. & cappa, c. ‘student pro bono and its role in contemporary australian law schools’ (2016). 41(2) alternative law journal 121.] [33: ibid, (2016), pp.122.] as previously noted,[footnoteref:34] the information paper of the australian national pro bono resource centre found that, in 2004, pro bono or other volunteering activities for students “were organised or facilitated either through the law school faculty or law student society/association” in 16 of the 29 law schools surveyed (i.e. 55%).[footnoteref:35] there has been little organised research into the types of activities in which these students engage; however, it is apparent that pro bono activities usually involve free legal advice on a number of topics to individuals who cannot afford legal assistance, or pro bono activities where students work on projects for community organisations.[footnoteref:36] it is not inconceivable that a greater emphasis on student pro bono engagement will foster a culture of social responsibility in law graduates,[footnoteref:37] and it has been asserted that “voluntary pro bono service during students’ law degrees undeniably, at the very least, acquaints and familiarises them with the concept of community service, and with the benefits resulting from such experience”.[footnoteref:38] [34: cantatore, f. ‘boosting graduate employability: using a pro bono teaching clinic to facilitate experiential learning in commercial law subjects’ (2015) 25(1) legal education review 147-172pp.156.] [35: national pro bono resource centre, pro bono and clinical legal education programs in australian law schools (2004). (information paper, august 2004), pp.8. <http://www.nationalprobono.org.au/publications/ documents/publishedversion_000.doc>. the study also found that “[c]linical legal education programs are available at 23 of the 28 law schools (82%)”.] [36: see e.g., national pro bono resource centre <https://www.probonocentre.org.au/provide-pro-bono/law-student/university/>.] [37: rosas, c. ‘mandatory pro bono publico for law students: the right place to start’ (2002). 30(3) hofstra law review 1069, pp.1078.] [38: cantatore, f. ‘boosting graduate employability: using a pro bono teaching clinic to facilitate experiential learning in commercial law subjects’ (2015) 25(1) legal education review 147-172pp.158.] overall, for law students, the benefits of pro bono work may include a sense of personal satisfaction, practice-based learning opportunities and sense of achievement through real client contact, an opportunity to improve their employability skills in general, benefit from mentoring by experienced practitioners and build valuable networks.[footnoteref:39] [39: cantatore, f. ‘the impact of pro bono law clinics on employability and work-readiness in law students’ (2018) 25(1) international journal of clinical legal education 147-72. pp.158.] furthermore, whether there is a continued motivation to engage in pro bono service once they enter practice, is an under-researched area of the law. bartlett and taylor acknowledge that despite “the voluminous empirical work conducted in the us to date, there has been little empirical research either in australia or elsewhere into the personal values and private motivations of legal practitioners who engage in the provision of [pro bono legal services]”.[footnoteref:40] in bartlett and taylor’s article, they record the findings of an empirical study conducted by the university of queensland pro bono centre with a group of 55 legal practitioners and reported largely internal or intrinsic motivations for undertaking pro bono lawyering.[footnoteref:41] ‘access to justice’ was identified as a recurring theme for many respondents and was a strong professional driver to undertake pro bono work.[footnoteref:42] other personal and moral beliefs included a sense that it was ‘the right thing to do’ and empathetic reasons.[footnoteref:43] they also interrogated the motivations for the participants’ pro bono work against the backdrop of the type of law firm they were associated with and context of their pro bono service. [40: bartlett, f. & taylor, m., pro bono lawyering: personal motives and institutionalised practice’ (2016) 19(2) legal ethics 260-280, pp.260-1.] [41: ibid, pp.269.] [42: bartlett, f. & taylor, m., pro bono lawyering: personal motives and institutionalised practice’ (2016) 19(2) legal ethics 260-280, pp.270.] [43: ibid, (2016), pp.271-2.] however, the present article will focus on the relationship between practitioners’ past attitudes to pro bono whilst at university, their current motivations for undertaking pro bono service, and consider the connection between the two experiences. in addition, the article will consider the feedback from clinic clients in relation to their clinic experience. pro bono service in australia in the usa, some universities mandate a certain number of pro bono hours for law students as a prerequisite to graduation,[footnoteref:44] and some states have imposed compulsory pro bono requirements for law graduates. for example, the new york state bar requires that law graduates complete at least 50 hours of voluntary legal work before being admitted to the legal profession.[footnoteref:45] in the usa, at least 39 law schools require students to engage in pro bono or public service as a condition of graduation.[footnoteref:46] the association of american law schools has stated that “the most important single function of pro bono projects is to open students’ eyes to the ethical responsibility of lawyers to contribute their services.”[footnoteref:47] [44: see ‘pro bono publico’, american bar association (web page, 26 july 2018) <http://www.americanbar.org /groups/legal education/resources/pro_bono.html>. generally, work undertaken as part of a clinical subject may count towards the us pro bono requirement. see e.g., ‘new york state bar pro bono requirement (web page, 2019) <http://www.law.nyu.edu/sites/default/files/upload_documents/newprobonoinfo.pdf>, which explains that pro bono work in law clinics may be counted at nyu.] [45: see the ‘mandatory 50-hour pro bono requirement’, new york state board of law examiners, (web page) <http://www.nybarexam.org/mpb.html>, which explains that since 1 january 2015 candidates seeking admission to the new york bar have to provide evidence showing that they have completed 50 hours of qualifying pro bono work, as required by rule 520.16 of the rules of the court of appeals. the approaches differ from state to state, see e.g., florida international university, pro bono brochure (august 2014) <https://law.fiu.edu/wp-content/uploads/sites/21/2014/09/2014-2015probono_brochurerevisedaug 2014.pdf>, which states that law students in florida are required to complete 30 pro bono hours.] [46: see american bar association (2018); see also, ‘pro bono graduation requirement’, harvard law school (web page, 2019) <http://law.harvard.edu/academics/clinical/pro-bono/index.html>, which states that harvard law school juris doctor students are required to complete 50 hours of pro bono work (which may include clinical subjects) before graduating.] [47: mccrimmon, l. ‘mandating a culture of service: pro bono in the law school curriculum’ (2003) 14(1) legal education review 53, 54–7, pp.58, citing association of american law schools commission on pro bono and public service opportunities, learning to serve: a summary of the findings and recommendations of the aals commission on pro bono and public service opportunities (report, 1999) <http://www.aals.org/probono/ report.html>.] in contrast, in australia there is currently no requirement for law graduates to complete pro bono work as a requirement for admission, although some have suggested that it should be the case.[footnoteref:48] detailed arguments have been made for and against imposing mandatory pro bono requirements in law schools.[footnoteref:49] as noted above, there is a lack of evidence-based research of the value and effects of pro bono services which needs to be addressed in order to ascertain the sustainability and ultimate value of pro bono service to the legal profession and the community. in order to justify a mandatory pro bono requirement in australian law schools, further research would be required to establish the projected value and impact of such pro bono services, the cost of pro bono initiatives to government, students and law schools, and the underlying concerns of equity and diverse student cohorts.[footnoteref:50] [48: see corker, j. ‘pro bono partnerships: the state of pro bono service delivery in australia’ (speech, national pro bono resource centre, 13 may 2013), pp.8 <https://probonocentre.org.au/wp-content/uploads/2013/06/pro-bono-partnerships-the-state-of-pro-bono-service-delivery-in-australia-brisbane-may-2013.pdf>.] [49: mccrimmon, l. ‘mandating a culture of service: pro bono in the law school curriculum’ (2003) 14(1) legal education review 53, 54–7, pp.61.] [50: cantatore, f. , ‘boosting graduate employability: using a pro bono teaching clinic to facilitate experiential learning in commercial law subjects’ (2015) 25(1) legal education review 147-172, pp.157.] corker and legg have cautioned against the imposition of mandatory pro bono requirements in law schools, stating that “[t]o make it compulsory for an aspiring lawyer may dilute the honourable aspect of the pro bono ethos. pro bono may become more about counting hours and minimum compliance than a genuine commitment to helping others in need”.[footnoteref:51] [51: corker, j.& legg, m. ‘take care in pushing student pro bono’, unsw newsroom (online, 26 april 2013) <http://newsroom.unsw.edu.au/news/law/take-care-pushing-student-pro-bono>.] however, corker acknowledged the views of the commonwealth attorney-general in 2013, when he supported the us pro bono position by stating that: …innovations such as compulsory pro bono requirements for students to be admitted as lawyers would enhance the sense of social justice in aspiring lawyers in universities around australia, and help foster a pro bono culture, whilst also providing very valuable and practical legal experience.[footnoteref:52] [52: see corker ‘pro bono partnerships: the state of pro bono service delivery in australia’ (speech, national pro bono resource centre, 13 may 2013),pp.8, quoting the honourable m dreyfus qc.] thus, although there is a general perception that pro bono services are desirable, even necessary, to address access to justice issues in the community, it is conceded that the imposition of mandatory pro bono service in australia would require much deeper and sustained investigation. in this context, this pilot projects provides insights into the perceived value of pro bono service by practitioners and recipients of these services. iii the pro bono in law schools pilot project overview to provide insight into the perceived benefits of pro bono service by providers (the ‘law alumni’) and recipients (the ‘clinic clients’) of these services, this article focuses on a pilot study of data obtained from two discrete surveys undertaken at the bond law clinic at bond university.[footnoteref:53] the findings are based on the results of: firstly, a survey conducted with law alumni who had previously engaged in university pro bono activities during their studies (the law alumni survey); and secondly, clinic client surveys conducted over a period of approximately five years (the clinic client surveys).[footnoteref:54] the purpose of the research has been to record and gain insight into the perceptions and motivations of participants in pro bono initiatives after they have graduated, and the views and experiences of the recipients of pro bono services, respectively. from the available data, recurring themes and findings will be sought and extracted in relation to participants’ observations. [53: a pro bono clinics program conducted at bond university since 2013, which is run on a strictly volunteering basis (i.e., not for academic credit).] [54: specifically, from january 2014 to april 2019.] the two surveys and corresponding findings are discussed in turn below. the law alumni survey methodology and participants the survey involved the collection of both quantitative and qualitative data through a qualtrics[footnoteref:55] survey instrument.[footnoteref:56] a group of law alumni were surveyed over the course of one semester in 2019 through the alumni and development office by way of an email, inviting recipients to participate in an anonymous survey relating to their past pro bono service experience during their law degree. recipients of the survey were all law alumni who had participated in the bond law clinic program. twenty-two responses were received in response to 107 emails sent, a response rate of slightly in excess of 20%. although not a statistically significant sample, the qualitative and quantitative data recorded provided valuable insight into the motivations and experiences of the law alumni respondents. [55: an online survey platform utilised by a number of australian universities <https://www.qualtrics.com/about/>. ] [56: see appendix a: the law alumni survey. ] the law alumni survey is attached marked ‘appendix a’. the anonymous survey consisted of seventeen questions,[footnoteref:57] in both multiple choice and open-ended form. it firstly sought to establish the current job description of participants and whether they were presently undertaking pro bono work, as well as their motivation/s for doing so (or alternatively, the reasons for their failure to engage in pro bono work). additionally, it investigated the time spent on pro bono work, the type of pro bono work involved (e.g., commercial law, criminal law, family law), and which aspects of pro bono work they enjoyed. the survey then proceeded to question which type of pro bono work participants had engaged in during their law degree, and whether they had gained any benefits from their pro bono experience. it went on to investigate what they perceived to be the most satisfying aspects of their pro bono service and whether they would recommend pro bono service to law students. finally, the survey questioned whether pro bono service during their law degree had had any effect on their present attitudes towards pro bono work, whether they were in favour of lawyers undertaking pro bono work and why. none of the survey questions were peremptory and participants could skip questions if they chose to do so, or withdraw from the survey at any time. despite these available options, most of the participants completed all questions asked, and none withdrew their responses during or after the survey. [57: see appendix a: the law alumni survey. ] general findings the participants (the law alumni’) respondents provided a number of different responses to the first question: ‘what is your current job description?’ a summary of the representation of law alumni in the survey is set out in table 1 below. table 1 what is your current job description? number of responses lawyer 10 law graduate/legal profession (not admitted) 5 government 2 student 1 migration agent 1 other (self-employed; business analyst; customer service) 3 total 22 it is apparent that over 68% of respondents identified as working in the legal profession, which would have impacted the total respondents’ ability (and opportunities) to engage in pro bono work in their chosen profession. the focus of the survey was on law alumni who had previously engaged in university pro bono activities, and it would have been expected that many may not have entered legal practice; however, it can be observed that there may be opportunities for pro bono service within other professions such as that of the “migration agent”.[footnoteref:58] [58: for example, in the immigration law clinic at bond university, legal practitioners as well as registered migration agents are engaged in pro bono activities such as advising persons on refugee visas or other disadvantaged members of the community with immigration related issues.] more than 77% of respondents had been employed in their positions for less than three years, although 41% had been in their current job for more than a year, while 14% had been working for less than 6 months. only 19% of the law alumni respondents had been in their positions for more than three years. participants’ current pro bono work approximately 60% of respondents claimed to be undertaking pro bono work in their present position, mostly on behalf of their firm. when questioned whether they were personally motivated to engage in pro bono service, or whether they did so to meet their firm’s expectations, unsurprisingly more than half of the respondents (approximately 55%) stated that both factors influenced them to undertake pro bono work. approximately 30% said they did pro bono work because they were personally motivated, while only 15% stated that they engaged in these activities “because (their) firm expects (them) to”.[footnoteref:59] [59: see appendix a: law alumni survey, question 5.] most respondents reported that they spent between 25 – 100 hours per annum on pro bono service. only 15% spent more than 100 hours, and the same amount spent less than 25 hours on pro bono work. when questioned on the area of law in which they undertook pro bono work, the law alumni represented diverse practice areas. more than half of respondents in this group noted ‘commercial law’, while 20% respectively cited ‘family law’ and ‘humanitarian law’. one respondent was engaged in ‘criminal law’ and another in ‘employment law’. when questioned about what they enjoyed most about their pro bono work, providing access to justice appeared to be a main motivator, with “access to justice” or “helping others” accounting for nearly 62% of participants’ gratification. other satisfying aspects mentioned were “having full responsibility”, “interesting work”, “working with a charity” and “keeping legal skills active”. the survey also questioned the approximately 40% of respondents who did not engage in pro bono work about their reasons for not participating. more than 65% of this group stated that they were not in the legal profession or did not have any opportunities for engaging in pro bono work. the remainder of respondents cited “no time” or a failure to seek out opportunities for pro bono work. participants’ university pro bono experience as noted, all law alumni had previously participated in the bond law clinic. nearly 70% had undertaken commercial law work, while 18% had volunteered at a community legal centre, and the remainder had volunteered at youth advocacy centre and indigenous affairs. all participants reported positive benefits from their pro bono experience at university. many respondents identified multiple benefits, but all of the positive respondents acknowledged the practical experience that their involvement provided in either dealing with clients or enhancing their legal skills, or both. a better understanding of access to justice issues (12%) as well as networking opportunities with lawyers (nearly 42%) were also acknowledged as positive benefits. when asked about ‘the most satisfying aspect of pro bono activities at university’, by far the most cited reward was “helping people” – which nearly 77% of respondents reported. approximately 12% regarded the practical experience as the most satisfying aspect, while two respondents cited “a sense of achievement” and “building confidence” as the most rewarding aspect of their pro bono involvement. more than 88% of respondents who engaged in university pro bono activities said they would recommend participation in pro bono activities to law students. cautions expressed by participants included: the need to gain other work experience; not providing an opinion on the spot if uncertain; fully committing to reap the benefits; and ensuring the clinic is properly organised. approximately 50% of these respondents acknowledged that university pro bono experienced made them aware of access to justice issues; however, the remainder reported that the experience had no impact on their attitude towards pro bono, mostly because they already had an understanding of the importance or value of pro bono service. in response to the final survey question, approximately 78% of respondents were in favour of lawyers undertaking pro bono work. the most important reason mentioned was assisting with access to justice (55%), while some respondents cited the opportunities for learning (23%) and keeping lawyers “grounded” (18%) as relevant considerations. discussion of findings although only 60% of respondents claimed to be involved in pro bono work, it should be observed that of the remaining 40%, most of them were either not working in the legal profession or did not have any opportunities for engaging in pro bono work. in real terms, only 2 of the respondents actively declined to do pro bono work. from a motivational perspective, it is noteworthy that approximately 85% of respondents cited personal motivation as their reason for engaging in pro bono work, either being entirely self-motivated (30%), or being self-motivated as well as complying with their firm’s pro bono practices (55%). only 15% did not participate of their own volition. in parallel with their current motivations as practitioners, it is significant that nearly 77% of alumni respondents reported altruistic motives such as “helping people” as their prime reason for previously undertaking pro bono at university. while there were other considerations such as “the practical experience” and “a sense of achievement”, these were not regarded as chief considerations. these pervasive sentiments were also reflected in the final question, which saw approximately 78% of respondents being in favour of lawyers undertaking pro bono work. unsurprisingly, the most important reason mentioned for this viewpoint was assisting with access to justice (55%), which resonated with their reported altruistic motives. whilst the study was admittedly limited in its reach as only 20% of the contacted alumni responded, it is evident that most respondents exhibited an overwhelmingly positive approach towards ongoing pro bono service and a tendency to be self-motivated in engaging in these activities. the results of this pilot study are in direct contrast to a 2015 study undertaken by mckeown’s in the uk, which recorded data from 44 student survey responses.[footnoteref:60] in that study, only 26% of respondents who provided a reason for undertaking voluntary work, reported that it was not for personal benefit (e.g., “giving something back”). the data showed that respondents would generally have a desire to attain some personal gain for their altruistic actions.[footnoteref:61] however, the data did indicate that while undertaking pro bono work did not necessarily influence their commitment to social justice, it did increase their awareness of social or economic issues.[footnoteref:62] mckeown further observed that “…the empirical evidence to date suggests that pro bono and clinical legal education does not instil a sense of public service or altruism within law students…”.[footnoteref:63] [60: mckeown, p. law student attitudes towards pro bono and voluntary work: the experience at northumbria university’ (2015) 22(1) international journal of clinical legal education 1, pp.23.] [61: ibid, (2015).] [62: ibid, (2015), pp.28.] [63: ibid, (2015), pp.18-9.] in another uk initiative, law students at northumbria university were invited to enter an essay competition entitled “pro bono: what’s in it for law students?”.[footnoteref:64] the essays indicated that students generally understood that pro bono was an important aspect of the legal profession and involved working for the benefit of vulnerable and indigent clients. the broad categories of reasons provided by students as reasons for undertaking pro bono included public service, skills, employability, networking, experience and satisfaction.[footnoteref:65] [64: mckeown, p. ‘pro bono: what’s in it for law students? student’s perspective (2017) 24(2) international journal of clinical legal education 43, pp.56-7. ] [65: mckeown, p. ‘pro bono: what’s in it for law students? student’s perspective (2017) 24(2) international journal of clinical legal education 43] the client surveys methodology and participants the clinic client survey involved the collection of both quantitative and qualitative data through a survey monkey[footnoteref:66] survey instrument.[footnoteref:67] clients of the bond commercial law clinic were surveyed over the course of approximately five years by way of a post-service email from the clinic, inviting recipients to participate in an anonymous survey relating to their overall experience with the clinic. one hundred and twenty-nine (129) responses were received in response to approximately 450 emails sent, a response rate of slightly in excess of 28%. the qualitative and quantitative data recorded from the client feedback provided insight into the experience of, and perceived benefits received by the clinic clients. [66: an online survey platform: see <https://www.surveymonkey.com/mp/australia/>.] [67: see appendix b: clinic client survey.] the client survey is attached marked ‘appendix b’. in summary, the short anonymous survey consisted of seven questions, in both multiple choice and open-ended form. it firstly sought to establish whether clients were an owner of a small business, someone who was thinking about starting a small business, or a person involved with a not-for-profit organisation. it went on to record where they had heard about the clinic’s services and the type of matter they had sought advice on during their appointment. the remaining four questions dealt with the quality of their experience with the clinic, whether they would recommend its services to business associates and friends, and finally, they were able to provide comments and a brief testimonial of their experience, should they choose to do so. general findings the participants and matter types more than 80% of the respondents were the owners of small businesses, nearly 11% were thinking of starting a business and approximately 8.5% were involved with not-for-profit organisations. table 2 (below) sets out the representative numbers of participants. table 2 you are? number of responses the owner of a small business 104 thinking of starting a business/entrepreneur 14 involved in a not-for-profit organisation 11 total 129 in the comment section it transpired, however, that a few of those identifying as “owner of a small business” were in fact either partners in a small business or had previously owned a small business. no distinction was made between these participants. also, one ‘not-for-profit’ respondent indicated that they were thinking about starting a not-for-profit organisation – again no distinction was made here. in respect of the types of matters on which clients consulted the clinic, a list of legal matter types was provided in question 3 of the clinic client survey,[footnoteref:68] and participants were asked to tick the relevant boxes that applied. several respondents ticked more than one box. by far the most common type of advice sought related to ‘disputes’, which over 30% of respondents indicated as their matter type. another frequent problem which arose were contractual matters – over 23% of participants reported ‘contracts’ as their type of matter. [68: see appendix b: clinic client survey.] other relatively frequently recurring issues involved advice or assistance with: “business structures” (nearly 18%); “debt recovery” (nearly 17%), and “intellectual property, e.g., trademarks and copyright” matters (slightly over 15%). “risk management and insurance” accounted for just under 10% of enquiries, and “consumer protection and competition regulation” and “leasing” each were approximately 8% of enquiries. the remaining issues —"franchising”, “licensing” and “human resources management and industrial relations” —occurred infrequently, accounting for only around 5% of enquiries collectively. the client experience the main focus of the clinic client survey was to record clients’ impressions and feedback on the clinic and the advice provided, as well as their level of satisfaction with the service provided. questions 4, 5, 6 and 7 of the survey accordingly dealt with aspects of the clients’ experience of clinic services, including: the quality of the advice received; practicality of the advice received; professionalism of the clinic administrator; professionalism of the bond law clinic reception staff; professionalism of the lawyer who advised them; and professionalism of the students who assisted the lawyer. in respect of question 5: ‘overall, how would rate the quality of your experience at the bond law clinic?’, the response was overwhelmingly positive. 70% of respondents reported their experience to be “excellent”, 17% indicated that it was “very good”, and 4% ticked “acceptable”. only 2% of respondents indicated that they would rate their experience as “poor”. unsurprisingly, in view of the positive responses above, 124 (97%) of the 129 respondents stated in question 6 that they would recommend the clinic to business associates and friends, with only 3% asserting the contrary. a significant number of respondents (76 of the 129) took the opportunity to comment and to provide testimonials in response to the last survey question, question 7. by far the most frequently mentioned perceptions of their clinic experience were (in order of incidence): they reported being “appreciative” or “appreciated” the service (30 comments); they saw the clinic staff and volunteers as “helpful” or “friendly” (22 comments); they thought the advice provided was “good or “relevant” (21 comments); and they perceived the clinic and volunteers as “professional” (20 comments). other comments which were repeated by a number of respondents related to: their satisfaction and the excellent quality of the service (14 comments) and their intention to recommend clinic services to others (13 comments). other adjectives used to describe their clinic experience were: “fantastic”, “beyond expectations” and one respondent referred to volunteer lawyers as “easy to talk to”. there were only three negative comments by clients, which related to: the lack of follow-up representation, as the clinic does not represent clients but only provides legal advice (one comment); and the lack of time available for consultation, as appointments in the clinic typically last thirty to thirty-five minutes each (two comments). some responses were very detailed and dealt with the positive resolutions or outcomes provided by the clinic; for example, one client commented: as a not for profit and recently incorporated community service organisation we needed guidance in establishing a constitution. we realised we required the assistance of a legal adviser but could not afford to pay for the advice but knew of the university's commitment to the community. from my first contact to the interview with the leader and student i could not have felt more confident that i would be looked after. how i was looked after was well beyond my expectations. professional, courteous and prompt are the words that come to mind in describing the outcome of my visit.[footnoteref:69] [69: response to clinic client survey, appendix b (2018).] a number of respondents mentioned the high cost of legal advice, and one client expressed their appreciation as follows: it was good to chat to professionals about my query and be satisfied that i was on the right path instead of being bullied by a wealthier outside company with its demands. to be offered reassurance from a professional team at no cost was really appreciated, as when in small business, some of these incidences that are sent to challenge us, really blow the budget and we don't have the budget to spend on legal advice. i would highly recommend any other business friends to seek advice from the bond law clinic if they needed assistance, and also i am happy to see that a lot of law mentors offer their valuable time to assist graduates and sit in on the meetings to offer their professional advice.[footnoteref:70] [70: response to clinic client survey, appendix b (2018).] another client stated, with regards to the cost of legal advice: i run a small business, with costs left right and centre. until you grow it's hard to afford legal advice and sometimes feel like giving up. this service is incredible as far as i'm concerned, and finally launched the product in question with the help of the clinic. i was happy with the service, but more importantly felt confident with the advice.[footnoteref:71] [71: response to clinic client survey, appendix b (2018).] some clients commented on the need for access to justice, for example: this is an excellent community service initiative by the law faculty, bond university. legal advice is generally considered very costly and some needy people might miss out on getting justice. this service is particularly helpful for such people. in my free 30-minute session, none of the staff had rushed me and listened to my requirements with great patience. the end result (as a final draft of the terms & conditions) that they delivered has filled all the gaps after just 1 consultation! :) thank you all who are involved in this initiative![footnoteref:72] [72: response to clinic client survey, appendix b (2018).] several clients were appreciative of the follow-up advice, as in this case: while the in-clinic experience was excellent, it is the follow up email with links, documents and other helpful tips that really was above and beyond. the bond law clinic offered us more for free than we now get from paid legal services. cannot recommend them highly enough. thank you.[footnoteref:73] [73: response to clinic client survey, appendix b (2018).] none of the respondents expressed any concerns or dissatisfaction about the presence of students in the interviews; to the contrary, at least seven respondents commented positively on the value of the clinic experience for students and the attitudes of the volunteer students involved. discussion of findings client feedback on the clinic experience was overwhelmingly positive, with 87% of clinic clients perceiving the quality of their clinic experience to be either “excellent” or “very good”. unsurprisingly, given the positive responses, nearly all (97%) of the respondents said they would recommend the clinic to business associates and friends. whilst the reported positive outcomes by clients can be regarded as anecdotal rather than of any statistical relevance, they provide valuable insight into the client experience and perceived benefits of the pro bono clinic. significantly, most clients expressed appreciation and gratitude for the services provided, with only three negative comments overall. one of these comments noted the lack of follow-up representation – however, this could be due to the structure of the clinic, which provides for legal consultations rather than ongoing legal representation. considering that all lawyers volunteer in the clinic after a full day at work, it could be argued that the clinic services are appropriately limited to a manageable scope. furthermore, many other clients reported their gratitude for the additional benefit of receiving follow-up written advice after their appointments. it may be observed that the clinic differs from similar cle models which are for academic credit where there may be a full-time solicitor providing advice or client representation. the comments exhibited an understanding by clients of the alternate purpose of the clinic, which was to provide students with a learning experience. comments such as “win! win!” and “this must be a great education benefit to the law students, having mentors with real experience” were used to describe the perceived benefits to students.[footnoteref:74] [74: responses to clinic client survey, appendix b (2018).] iv conclusion this article investigated two aspects of a pro bono clinic, namely, the factors surrounding continuing pro bono service once a group of law graduates entered legal practice, and the perceived benefits reported by clients of the same law clinic over a period of approximately five years. although this pilot project provided some valuable insights in relation to these issues, a comprehensive national survey of pro bono initiatives would be required to provide persuasive data on the topics examined here. the survey findings in respect of the law alumni support the contention that most of the participants surveyed appeared to be self-motivated and committed to the cause of providing access to justice, an attitude that had presumably carried over from their student days. this was evident from most participants’ comments that ‘helping people’ had been the most satisfying aspect of their student pro bono experience. thus, altruistic motives featured significantly in the surveyed group, both in their student experience as well as their current pro bono service. the findings in relation to practitioners’ current motivations resonate with the 2016 survey findings of bartlett and taylor, which identified “access to justice” as a major motivator in the provision of pro bono service by respondents, and their finding that motivations for undertaking pro bono lawyering were largely internal or intrinsic.[footnoteref:75] [75: bartlett, f. & taylor, m. ‘pro bono lawyering: personal motives and institutionalised practice’ (2016) 19(2) legal ethics 260-280, pp.269.] these findings diverge from the perceptions of the uk survey participants discussed by mckeown, where only 26% of respondents reported that their volunteering was not for personal benefits.[footnoteref:76] he pointed out that extrinsic motivations had been criticised within education because it was less likely that students would partake in something without a reward. he pointed out, however, that studies also showed that students’ attitudes could be affected by their pro bono experience, even if originally done for extrinsic factors, because it opened their eyes to the situation of real-life people.[footnoteref:77] [76: mckeown, p. ‘law student attitudes towards pro bono and voluntary work: the experience at northumbria university’ (2015) 22(1) international journal of clinical legal education 1, pp.27.] [77: mckeown, ‘pro bono: what’s in it for law students? student’s perspective (2017) 24(2) international journal of clinical legal education 43, pp.77-8.] due to the lack of comprehensive data on these issues in both the uk and australia it would be unwise to generalise and make sweeping statements unsupported by empirical evidence; however, both of the australian surveys discussed above point to a tendency by australian practitioners involved in pro bono service to be personally or intrinsically motivated to do so. additionally, “access to justice” or “helping people” can be identified as the strongest motivating factor emerging in both of the research findings. in respect of the clinic client surveys undertaken, it was evident that the responses were almost entirely and persuasively positive, with negligible complaints. this pointed towards a deep appreciation by members of the community — in this case small business owners and people associated with not-for-profit organisations — for the free legal services provided to them. admittedly, it may be difficult to measure the outcomes of pro bono services in general, due to their diversity and range of objectives, and whether or not clients had achieved a successful resolution of their matters. however, factors such as the effective delivery of access to justice and client satisfaction, are arguably convincing barometers by which to measure the success of a clinic, and a compelling endorsement for the ongoing provision of pro bono services. 110 project1 legal education and clinical legal education in poland dr izabela krasnicka faculty of law, university of białystok board of the legal clinics foundation, poland the aim of this paper is to present the existing legal education system and development of clinical legal education in poland. the first part briefly introduces the general polish higher education system including the implications of the bologna process and other challenges for the law faculties as higher education institutions. it then focuses on the five different apprenticeships necessary to obtain license to practice law in poland. the second part deals with the study program and teaching methods used at polish law faculties. it argues that the present system does not meet the requirements of the contemporary legal job market as students are not, as a rule, exposed to practical aspects of legal problems and leave law school without training in the necessary skills. the third and most extensive part is dedicated to the legal clinics operating in poland. some statistical data is presented on legal clinics (i.e. numbers of students, teachers, cases etc.). this part also discusses basic clinical methodology instruments used in polish clinics. finally it describes the establishment of the polish legal clinics foundation (foundation), its goals, tasks, challenges and achievements. i. higher education system in poland institutions of higher education the first polish law school dates back to 1364 when the present jagiellonian university was established as the oldest university in poland and second oldest in central and eastern europe. as z. gostynski and a. garfield write: “over the centuries poland developed a system of legal education which was similar to that offered in other european civil law countries. the period of socialist rule in poland did not change the general contours of this system. instead, it modified the system, especially in terms of curriculum and career opportunities. when poland emerged from communist rule in 1989, its system of legal education continued largely intact.”1 before 1989, under the old rules, the system comprised only state institutions, the sole exception being the nonstate catholic university in lublin. in 1990, the new act on schools of higher education laid legal education and clinical legal education in poland 47 1 z. gostynski, a. garfield: taking the other road: polish legal education during the past thirty years, 7 temp. int’l & comp. l.j. 243, 1993, p.253. down rules for establishing non-state institutions of higher education, whose number has been steadily growing since then.2 according to the current law on higher education, a public higher education institution is an institution established by the state as represented by a competent authority or public administration body. a non-public higher education institution is an institution established by a natural person or a corporate body other than a corporate body administered by national or local authorities.3 there may also be distinguished two types of higher education institutions. the first group includes university-type institutions offering studies in the humanities, sciences, medical sciences, economics, pedagogy, the arts, and military studies. the second group includes professional institutions which educate students in specific professional areas and prepare them for practising a profession.4 the bologna process and legal education a european higher education area (ehea) based on international cooperation and academic exchange is the main goal of the bologna process and one of the proposed reforms provides for “readable and comparable degrees organized in a three-cycle structure (e.g. bachelor-masterdoctorate)”.5 there are five levels of higher education established in the polish system, fulfilling the standards of the bologna process: one undergraduate (first-cycle) program, two graduate (second-cycle and long-cycle) programs, one doctoral (third-cycle) program and one postgraduate (non-degree) program.6 legal education is one of a very few fields of studies which departed from a stage-oriented assumptions of the bologna process and it constitutes a uniform five-year study program classified as the long-cycle one that is open to applicants holding a secondary school leaving certificate (matura exam), providing specialist knowledge in a specific area of study as well as preparing for creative work in a profession. graduates are granted master level titles (magister) based on the completion of the curriculum and final diploma examination where students defend their master thesis.7 there has recently been discussion over whether to change the final diploma examination. under present circumstances the fifth year students attend the master seminars conducted by professors and write master papers under their supervision. two major issues have been heavily criticised – one, that due to the high number of students it often happens that one professor supervises more than 10–15 master papers at the same time (the number varies in different schools and reaches up 48 journal of clinical legal education december 2008 2 taking legal education as an example, there are total of 16 state schools with law faculties, 12 of them existed before 1990. after the reform the number of non-state law schools has grown to reach total of 13 non-state institutions where legal education can be obtained. data based on the 2008 law faculties ranking of “gazeta prawna” (polish daily legal newspaper). 3 art. 2 of the act of july 27, 2005 – law on higher education, official journal 2005, nr 164, position 1365. 4 classification by the ministry of science and higher education: http://www.eng.nauka.gov.pl 5 see the official website of the bologna process: http://www.ond.vlaanderen.be/hogeronderwijs/bol ogna/ 6 art. 2 of the act of july 27, 2005 – law on higher education, official journal 2005, nr 164, position 1365. 7 for more information on professional titles and academic degrees in the polish educational system see the information of the bureau for academic recognition and international exchange at http://www.buwiwm.edu.pl/educ/index.htm to 30 or even 40). as a consequence, students’ research is often incomplete and the papers are not properly prepared and reviewed, which leads to the second critical argument – a masters thesis should engage more methods than the simplest “copy-paste-cite” one. the bologna process encouraged european schools to introduce the european credit transfer system (ects) which is a student-centered system based on the student workload required to achieve the objectives of a program. in the frame of ects, every legal course is assigned a number of credits reflecting the amount of work necessary to meet the course’s requirements. there is minimum standard of ects points required to pass each semester as well as the ects grading system allowing for easy recognition of students’ achievements by different european institutions.8 how a student becomes a lawyer the polish legal education program consists of a five year curriculum discussed below, but law school graduates with a masters degree are not licensed to practice in any legal profession. in order to practice law, following graduation they have five different traineeships to choose from, depending on whom they want to become in the future: a judge, an advocate, a legal advisor, a public notary or a prosecutor. the provision of legal advice and representation of parties before the court can be performed by advocates or legal advisors.9 it takes a state entrance exam to be admitted to the advocate’s or legal advisor’s traineeship (aplikacja) which lasts three years and ends with a final, usually twoor three-day, exam. positive results in the exam opens the door to practice and the professional associations.10 ii. what and how a law student studies at school study program example every polish law faculty has the right to arrange its own study program. the ministry of science and higher education issues “educational standards” for every major (law, administration, biology, architecture etc.) taught at higher education institutions. the standards will provide the number of ects points required, the number of semesters and hours within the semester to be taught and basic requirements of the content of education (i.e. what kind of courses should be offered in a law school). law faculties follow those standards while scheduling their own curricula. it is commonly accepted that the five – year legal program is theory-oriented. taking a program of one of the law faculties as an example,11 the lack of any practical courses is easily noticed. the first legal education and clinical legal education in poland 49 8 more on european credit transfer system: eu education and training at http://ec.europa.eu./ education/programmes/socrates/ects/index_en.html 9 functions of both professions are very similar today. advocates provide full scope of legal service, while legal advisors can not take criminal law cases. 10 in 2005, following the judgment of the constitutional tribunal of poland on the admission to the advocates’ and legal advisors’ traineeships, a new law on admission to legal profession was introduced which abolished the exclusive control of access to legal professions for law graduates by professional associations (similar to bar associations). as a consequence, the entrance and final exams are now state exams (these used to be organized by local associations and the number of admitted candidates was often lower than 10 per year). it also opened up the possibility of obtaining a license to practice (based only on the final state exam) for persons holding a phd in law or for persons who performed legal services for five years in an unqualified status. 11 this is an example of a study program offered since 2007 at the faculty of law, university of bialystok – the home school of the author of this article. it may be found at: www.prawo.uwb.edu.pl. other polish faculties follow the same standards. although the rules and particular components vary, the lack of practice-oriented courses is a national problem. year law students have their schedule already planned and they take the following courses: jurisprudence, history of polish law, common history of law, legal logics, roman law, denomination law, economics, sociology (or legal ethics), computer science, foreign language, latin legal terminology and physical education. obligatory courses during the second year include: constitutional law, administrative law, civil law (part 1), criminal law, and intellectual property law. third and fourth year comprises: civil law (part 2), criminal proceedings, administrative proceedings, civil proceedings, theory and philosophy of law. the fifth year is dedicated to the master seminar, however between year ii and v, each student completes other courses, so the number of ects points equals 60 per year and has to include an additional 11 courses in the program such as: political and legal doctrines, labor law, law of the eu, public international law, tax law etc. in addition there are 10 specialized courses (15 hours each) required during the fourth and fifth year in accordance with the student’s master seminar. there are only two two-week internships included in the study program which each student has to take during the fourth and fifth year. teaching forms and methods every major course in polish law schools has two forms of teaching. once a week all students in a particular year meet to listen to 90 minutes of a regular lecture conducted by the professor in a given field of law. once a week groups of students (the number of students is different in every law school but on average there are 20–30 students in one group) meet to work in a 90 minute class conducted by teaching assistants or lecturers. the idea behind such a division was to enable students to listen to a full time lecture and then work on some practical aspects of the same legal problems in class.12 unfortunately, quite often those forms are not very productive. lectures can consist of nothing but reading chapters from books and classes of going over those chapters and discussing them. during the fourth and fifth year students attend master seminars. they are usually smaller groups of 10–15 students working under supervision of the professor on the preparation of the final master thesis. most popular teaching methods at polish law schools include: lectures (nowadays, also with power point presentations), class discussions, working with codes and legal acts (not so often with court judgments). it must be emphasized however, that the situation, at least in some law schools, has been improved as more new teaching techniques are introduced and students have a chance to participate in moot court simulations, workshops on legal analysis and legal writing etc. a lot of credit in this respect goes to the legal clinics where new ideas are widely and successfully implemented to make sure law graduates leave the school with some practical preparation for their future profession. iii. clinical legal education: a decade of struggle and satisfaction development of cle in poland the idea of clinical legal education was brought to poland from the united states and quickly gained a big group of supporters. in 1997 the first legal clinic was established with the financial 50 journal of clinical legal education december 2008 12 in most polish law schools lectures are not obligatory but classes are. students have to obtain a passing grade in class to be able to take a final course exam. this is however, not a rule at all faculties, sometimes both lectures and classes are not mandatory. support of the ford foundation at the jagiellonian university in krakow. soon other clinics opened at warsaw university (also based on the ford foundation’s support) and the university of bialystok (based on the financial support of the elsa – european law students’ association and the law school’s funds).13 within ten years the idea of clinical legal education has become popular among students and some faculty members. it was not always easy to establish a new clinic at a law school and convince the authorities it was an excellent opportunity for the students to get a sense of law in practice while still studying the codes.14 it was even more difficult to convince the national associations of advocates and legal advisers that clinics would not compete with them. it took much effort by many students and supporters of the cle idea to reach today’s numbers – there are presently 25 legal clinics operating at every public school and most private schools.15 all of them are in some way included in the study programs, as an optional course, internship or student activity. most of the programs also include the legal clinic in the ects system. at some faculties (in warsaw, krakow, bialystok, opole or lodz) clinics have already become integral parts of the school’s structure in form of an institute, chair or laboratory.16 students involved in the clinical program are divided into sections dealing with particular fields of law (civil, criminal, administrative, refugee, etc.). one legal clinic usually comprises several sections (there are for example eight sections at the warsaw university clinic, seven sections at the university of bialystok), so students are exposed to different fields of law within one program. each section is supervised by at least one teacher, a member of the faculty, sometimes together with a practitioner. there are two students assigned to each case. the legal opinion is always given in writing and explained to the client. this assistance is of course free of charge and clinics accept only clients who can not afford professional legal advice.17 legal clinics:statistical data the legal clinics foundation issues an annual statistical summary of polish legal clinics’ work and that data represents the scope of clinical activity throughout the country. during the academic year 2006/200718 there were a total of 9399 cases submitted to legal clinics out of which 2327 (25%) were civil law cases. there were 1302 students and 197 teachers working in the clinics. on average then, one teacher supervised the work of six students and one student handled seven cases. legal education and clinical legal education in poland 51 13 more on the history of the polish legal clinics’ development see: legal clinics foundation website at:www.fupp.org.pl 14 polish law students have very limited options when it comes to providing legal assistance to clients in courts and they may not represent them. for more information concerning legal assistance in poland see: l. bojarski: the aim of legal clinics [in:] the legal clinic. the idea, organization, methodology, c.h. beck warsaw 2005, p.19–33. an on-line version of the publication available at the legal clinics foundation’s website: http://www.fupp. org.pl/down/legal_clinic.pdf 15 the 2008 law school ranking by gazeta prawna quoted above, for the first time included legal clinic as a ranking criterion. moreover, the deans of the winning law faculties emphasized clinical programs as valuable priorities of their law school’s policies. 16 more on the organizational forms of legal clinics in poland in the light of the bologna process: r. golab: institute of clinical legal education – answer to the challenges brought to european schools by the bologna process, klinika 2008, nr 4 (8), p.18–23. 17 the structure of the clinic and sections as well as the procedure required when providing legal advice by students is extensively explained in: the legal clinic. the idea, organization, methodology, c.h. beck warsaw 2005. 18 this summary is available in the power point presentation at the legal clinics foundation’s website: http://www.fupp.org.pl/down/prezentacja_ 2006-2007_eng.ppt. it is based on data collected from 24 legal clinics, as the other one was just opened recently and the data from last academic year are not published yet. naturally, polish legal clinics vary in size having between 20 to 120 students enrolled into the course and between 3 and 20 teachers working with students. bigger clinics therefore handle somewhere between 500 and 1000 cases per year and smaller ones between 40 and 300. civil law cases are most often submitted to legal clinics followed by criminal law cases (2012 in the 2006/7 academic year), family law cases (1180), labor and unemployment law (992), inheritance law (817), housing law (591), administrative law (421), refugee and foreigner law (398), financial law (106), social aid (50), health care (31), violence against women (29), disabled (15), ngo (14) and 416 other legal problems. in 49% of cases the legal problem required only a short explanation and opinion which took one or two meetings with the client and the case lasted up to two weeks. 41% of the cases required several meetings and the case lasted between two weeks and two months. only 9% of cases lasted up to one year and 1% – longer than a year. 83% of the clinical clients had not obtained any professional legal advice before coming to the clinic. teaching in a legal clinic as legal clinics became very popular in polish law schools, it was necessary to extend the understanding of clinical legal education and make sure that the social mission did not set aside the educational goal of the clinical programs. as f. zoll and b. namyslowska observe, there are two fundamental aspects to the clinical teaching method: its effectiveness as a method of learning comprehensive legal skills in a relatively short period of time, and the social education aspect which transpires through the fact that the student lends assistance to people of modest means thus realizing how the institutions of the state function wherever professional legal assistance does not reach.19 polish law professors who became supervisors in legal clinics had little or no idea of how to effectively use the real client and real legal problem and build the teaching instruments around them. the role of the supervisor was and still is in many cases reduced to the function of watching over the students’ activities and ensuring that they do not make any mistakes from the legal point of view, that their opinions include correct provisions and quote appropriate articles.20 many projects have been carried out to improve the situation and to “teach the teachers” how to use their time with students in the clinic to help develop necessary lawyering skills: legal analysis and reasoning, communication, negotiation, factual investigation, problem solving etc. with the financial support of several institutions some clinical teachers visited legal clinics in the usa21; observed teaching methods used there and brought them back to try at their schools. many conferences and workshops have been organized by the legal clinics foundation but also by the clinics themselves, dedicated to different aspects of clinical teaching. there are also a couple of books published by one of the largest legal publishers in poland, introducing the clinics and promoting clinical education (some of them are available to download from the foundation’s 52 journal of clinical legal education december 2008 19 f. zoll, b. namyslowska: the methodology of clinical teaching of law [in:] the legal clinic. the idea, organization, methodology, c.h. beck warsaw 2005, p.186. 20 id, p.187. 21 the legal clinics foundation also worked out a scholarship program for clinical teachers. each year the kosciuszko foundation sponsors one representative from a polish legal clinic who particiapates in the fellowship program arranged by pili at columbia university in new york. website).22 additionally, clinical teachers can publish articles and share their experience in the “klinika” magazine published by the foundation and communicate through a group e-mail list created specially for clinical teachers. the legal clinics foundation within just a few years of the first legal clinic being established in 1997, the clinical idea spread throughout the country and in 2001 fourteen new programs were opened at different schools. at that moment it was important to arrange some future planning to consolidate the clinical objectives and also to create a common platform for communication and experience exchange among polish clinics. at the turn of 2001 and 2002 the decision was made to establish a legal clinics foundation which presently operates under the institutional financial support of the batory foundation and polish-american freedom foundation. in december 2001 three representatives from polish legal clinics were invited to participate in a study visit to the republic of south africa, where the clinical teaching program had been successfully developing for the past 30 years.23 the trip resulted in the devising of a strategy for the development of the polish legal clinics program based on the experience of the republic of south africa, and consequently in the establishment of the legal clinics foundation which would take on the duty of strengthening the present clinical structure and shape the future of the clinical movement in poland. the idea was not only to ensure the financial stability of the clinics, but also to constitute a forum which would bring together the efforts to enhance the clinics’ position in the academic and legal community, and would search for a formula to inscribe legal clinics into the polish legal system.24 according to its statute,25 the legal clinics foundation’s goals include: 1) financial support of the legal clinics’ activity and other programs of practical legal education; 2) elaboration and promotion of the legal clinics’ activity standards; 3) elaboration and propagation, of the legal regulations and drafts of legal regulations covering legal clinics’ activity. the structure of the foundation consists of the council of the foundation (council), board of the foundation (board), and advisory board. the council consists of the academies having legal clinics operating according to the standards and accredited by the foundation and other subjects supporting the foundation’s activity. it holds the executive power as it appoints the board and approves financial plans and activity projects proposed by the board. legal education and clinical legal education in poland 53 22 the first polish book dedicated to the clinics which has been quoted many times in this article has been translated into english and is available at the foundation’s website: the methodology of clinical teaching of law[in:] the legal clinic. the idea, organization, methodology, c.h. beck warsaw 2005. other guides include: i. mulak, m. szeroczynska: how to teach lawyers a good communication with clients, ch beck warsaw 2006, l. bojarski, b. namyslowska – gabrysiak: moot court as a teaching method, ch beck warsaw 2008. 23 the visit was designed and organized by the public interest law initiative (pili) affiliated with the columbia university in new york and financed by the ford foundation. the study visit report was published in the conference materials of the fifth annual colloquium on clinical legal education which was held in warsaw on november 15–16, 2002. the english version is available at the founadtion’s website: http://fupp.org.pl/down/ legal_clinics_rpa.doc more on the origins of the legal clinics foundation: f. czernicki: the legal clinics foundation – the creation, the objectives and an outline of activities [in:] the legal clinic. the idea, organization, methodology, c.h. beck warsaw 2005, p.209–221. 24 id, p.209–210. 25 the statute of the legal clinics foundation along with other documents is available in english at the foundation’s website: http://www.fupp.org.pl/ index_eng.php?id=statute the board consists of five members elected for a two year term and it manages the affairs of the foundation and represents the foundation. it carries out the everyday work of the foundation by searching for resources for the planned activities, coming up with new projects, communicating with the clinics etc. the present board consists of the president and four other members representing different universities. the advisory board is appointed by the council and sits as a consultative and advisory body. it includes persons whose competence and authority are essential to the foundation’s activity. at the moment the advisory board among others includes the polish ombudsman, president of the constitutional tribunal, president of the national council of advocates and some foreign representatives from pili, the catholic university of america in the usa or the association of university legal aid institutions trust in the republic of south africa. to meet the goals included in its statute, the foundation has undertaken a great number of tasks and carried out different projects aiming at the improvement of the clinical environment. there are three main fields of the foundation’s activity: 1. financial support for the clinics based on the standardization of clinical programs, 2. improvement of the clinical programs on administrative and educational level, 3. promotion of pro bono work in the polish legal community. the first field, dealing with financial support, requires constant search for possible sponsors and organization of grant competitions for the clinics. it has been the rule that only clinics which meet the set of standards set by the foundation can apply for financial support.26 those grants allowed the clinics to obtain all the necessary equipment, hire secretaries and cover other needs. the foundation also obtained a great deal of support from the beck publishing house which donated legal information software and basic legal literature to every clinic. there have also been some donations of equipment from several law firms located in warsaw. the second field is dedicated to a wide range of tasks and projects including the national and international conferences, workshops, seminars and training for the clinical students and teachers, publishing activity of the foundation described above, co-operation with the ombudsman of the republic of poland, cooperation with law firms and associations of legal corporations, constant exchange of information and clinical know-how, responding to the needs and ideas presented by the clinics, implementation of new programs such as medical clinic, mediation clinic, ngo clinic etc. in addition, the foundation is fully engaged in the work on the new law on access to legal assistance and works towards the legal clinics being incorporated into the new system. the third field reaches beyond the strict clinical movement. the foundation’s mission is to inculcate the idea of pro bono work deeper into the polish legal community. the annual pro bono lawyer contest aims to promote the issue of involvement of lawyers in pro publico bono work and 54 journal of clinical legal education december 2008 26 there are 11 standards covering the clinical functions and tasks securing that a legal clinic: provides reliability of its services, assures the supervision of faculty teachers over the students, assures the necessary confidentiality of its services, assures the protection of the documents submitted by the clients; legal clinic odes not accept original copies of the documents, establishes secretary office according to the scope and characteristics of its activity, informs the client in written about the rules of the clinical services, carries out a qualifying procedure regarding their clients which is to assure that the client can not afford payable legal advice, sets, according to the proper rules of law, information system about the clients which is to guarantee minimal risk of the conflict of interests, is obligated to conclude an insurance contract on the liability for damages, the guarantee amount can not be lower than 10,000 euro, submits to the foundation information on the activity and that legal advice is free of charge. the title of the pro bono lawyer is awarded to a person providing free of charge and voluntary legal services to other persons, social organizations or institutions. the newest project – pro bono clearinghouse – started in january 2008 and aims to create a network of collaborators, including law firms and ngos, with the centrum pro bono as the coordinating centre, to deal with the issues of free of charge legal support.27 clinical legal education in poland can serve as an example of a success story. all the initial problems have been overcome and the initial lack of interest or even distrust has turned into a great deal of engagement and extensive use of clinical teaching methodology. based on the recently published data, there are around 60,550 students at polish law schools. every year around 1,300 (2%) of them participate in clinical programs and this number will grow as the program develops. there are of course more challenges ahead. clinics should become integral parts of the university structures and thus be incorporated into the schools’ budgets. a lot has still to be done to improve the teaching process and convince more law professors that this is actually one of the most effective ways to educate future lawyers, both in the legal and social aspects of each case and each client. the bologna process provides an opportunity for introducing practical approaches into traditional legal education.28 clinical methodology has a chance to become better recognized and more frequently used in other european law schools. it is possible only if european and international cooperation between clinical associations and institutions continues to grow and deepen. legal education and clinical legal education in poland 55 27 the project is sponsored by the polish-american freedom foundation. more information: http://www.centrumprobono.pl/en/ 28 l. hovhannisian: clinical legal education and the bologna process, pili papers, nr 2, december 2006, p.6. reviewed article – teaching and learning in clinic a concentrated certificate program incorporating experiential education: helping students prepare for a career in the dynamic area of health law leslie e. wolf, j.d., m.p.h. (lwolf@gsu.edu)[footnoteref:1]* [1: *leslie e. wolf, jd, mph is professor and director of the center for law, health & society at georgia state university college of law. she conducts empirical research and publishes frequently in non-law venues. prior to joining the law school, professor wolf taught medical ethics and research ethics at the university of california, san francisco. ** stacie kershner, jd is associate director of the center for law, health & society at georgia state university college of law. she recently served as program coordinator for the robert wood johnson funded future of public health law education: faculty fellowship program and previously was an orise fellow in the public health law program of the centers for disease control and prevention. *** lisa radtke bliss, jd is associate dean of experiential education, associate clinical professor, and co-director of the help legal services clinic at georgia state university college of law. she is co-editor and author of “building on best practices: transforming legal education in a changing world” (lexisnexis 2015) with deborah maranville, carolyn kaas, and antoinette sedillo lopez.] stacie kershner, j.d. (skershner1@gsu.edu)** lisa bliss, j.d. (lbliss@gsu.edu)*** georgia state university college of law, usa acknowledgements: this paper relies on the history and research that was laid out in the health law certificate proposal written by professor charity scott and submitted through georgia state university for approval of the health law certificate. professor scott is the founding director of the center for health, law & society at the georgia state university college of law and led efforts to create a health law certificate. without her vision, leadership, and efforts, there would be no health law certificate and, therefore, this paper would not exist. christine lee, a georgia state law student, helped with transforming the proposal into a paper and conducting supplemental research. luke donohue, a georgia state law student, provided additional research and critical feedback. we are indebted to each of them for their efforts. introduction as law practice becomes both increasingly more complex and more specialized, law students must choose how to direct their course of study. in the u.s., practice in the area of health law, in particular, requires lawyers to be familiar with a wide range of federal, state, and administrative rules and regulations that affect all aspects of the healthcare industry. lawyers practicing in this area also must be able to engage in complex processes and procedures to serve the needs of clients. law students who wish to practice in the area of health law must acquire knowledge, skills, and values that are necessary for them to have an understanding of the legal issues that challenge lawyers and that prepare them for life-long learning in this rapidly growing and changing industry. this paper explores how a concentrated health law certificate program provides students a focused path through the law curriculum. not only does the program require students to take a range of health law courses, but students take multiple courses that incorporate experiential learning, including clinics, externships, and other courses that integrate clinical teaching methodology. this article highlights the development of a health law certificate program, designed to guide students through the law curriculum to choose among the most beneficial courses for a health law practice. to identify the necessary courses, health law faculty and health law practitioners first explored the knowledge, skills and values that a successful health law practitioner needs. this article also examines the process of developing and implementing the certificate program. it also explores how the integration of experiential learning into multiple courses required by the certificate allows students to gain insight into the practical realities of a variety of careers in health law and to direct their study in alignment with their chosen career path. the involvement and integration of experiential learning as a strong component of the program allows clinical educators to have a positive impact on the overall curricular experience of students receiving the certificate. moreover, the infusion of clinical pedagogy throughout the health law curriculum benefits not only students who are enrolled in the certificate program but any law student who elects to enroll in any of the numerous health law courses. the success of this focused curricular program demonstrates that this model is effective, can be adapted to other areas of law,[footnoteref:2] and provides a more coherent and integrated education for future law students who will become the practitioners of tomorrow. [2: since the inception of the health law certificate, gsu law has modeled three additional certificate programs after it. the school now offers certificates in environmental and land use law, intellectual property law, and public interest law and policy. like the health law certificate, other certificate programs require students enrolled in the programs to take experiential courses to satisfy the certificate requirements.] background in the united states, a law degree is a three-year post-graduate course of study. the first year typically is devoted to required courses covering a range of foundational legal areas (e.g., torts, property, contracts, criminal law, and legal research and writing), whereas the second and third years provide greater freedom for students to choose their course of study. there may be a few required courses (e.g., georgia state law requires that all students take a specialized course in litigation, “lawyering: advocacy”) and recommended courses (e.g., topics that are tested on the bar exam, a necessary precursor to licensure), but, overall, the second and third year curriculum is primarily directed by student choices. students may base their choices on disparate factors ranging from area of interest, scheduling convenience, or affinity for a particular professor. this relatively unfocused approach is largely unchanged from the model langdell introduced at harvard law school over 100 years ago, and has been the subject of substantial criticism and calls for reform in recent years.[footnoteref:3] proposed legal education reforms have included calls for the elimination of the third year[footnoteref:4] but mostly have focused on providing more coherence to the three year course of study.[footnoteref:5] [3: william m. sullivan et al., educating lawyers: preparation for the profession of law (san francisco: jossey-bass 2007) [hereafter the “carnegie report,” so called because sponsored by the carnegie foundation for the advancement of teaching under its preparation for the professions series]; roy stuckey et al., best practices for legal education: a vision and a road map (2007), available at http://law.sc.edu/faculty/stuckey/best_practices/best_practices-full.pdf [hereafter “best practices”]; building on best practices: reflections on transforming legal education in a changing world (d. maranville, lisa radtke bliss, carolyn wilkes kass, antoinette sedillo lopez eds., lexis-nexis 2015) [hereinafter building on best practices]; new york state bar association, report of the task force on the future of the legal profession (feb. 2011), available at http://bestpracticeslegaled.files.wordpress.com/2011/03/taskforcereport.pdf (particularly discussion on educating and training new lawyers, at 36-47); and ali-aba, critical issues summit, equipping our lawyers: law school education, continuing legal education, and legal practice in the 21st century (2010) (final recommendations available at http://www.equippingourlawyers.org/documents/summit_final09.pdf). ] [4: colleen flaherty, 2 years for law school?, inside higher ed, aug. 26, 2013, https://www.insidehighered.com/news/2013/08/26/president-obama-calls-cutting-year-law-school.] [5: building on best practices, supra note 3at 52-58 (discussing pathways, integration and sequencing the curriculum), at 59-65 (discussing a three-year law school curriculum that engages students and effectively prepares them for the practice of law), carnegie report, supra note 2; best practices, supra note 2. ] the move for reform has been advanced by influential reports, books and commentary over the last decade, including best practices, the carnegie report and building on best practices.[footnoteref:6] for purposes of this paper, we focus on a primary theme of the reform movement: the need for law schools to provide integrated learning and learning in context. embracing this concept, which was one of central tenets of best practices, the carnegie report explained: [6: carnegie report, supra note 3; best practices, supra note 3, building on best practices, supra note 2. ] the key idea in [best practices] is that the findings of the learning sciences have converged on what the authors call “context-based education” [citation omitted]. the report’s thesis: ‘students cannot become effective legal problem-solvers unless they have opportunities to engage in problem-solving activities in hypothetical or real legal contexts’ [citation omitted]. we concur with this thesis.[footnoteref:7] [7: carnegie report, supra note 2, at 95.] the core insight behind the integrative strategy [in contrast to the traditional additive strategy of legal curriculum reform by simply adding new courses] is that effective educational efforts must be understood in holistic rather than atomistic terms. for law schools, this means that, far from remaining uncontaminated by each other, each aspect of the legal apprenticeship – the cognitive, the practical, and the ethical-social – takes on part of its character for the kind of relationship it has with the others.[footnoteref:8] [8: id. at 191. the aba resolution and report, adopted as revised august 2011, http://www.abajournal.com/files/10b_2011.pdf, also acknowledges the importance of integrating theory with practical experiences and contexts in law school, and suggests aba accreditation rules should address this integration: “academics and others began to conceptualize professional development as a complex process involving an ongoing cycle of abstract learning and engagement with professional practice. that cycle permits each professional to develop individualized cognitive structures which enable the rapid problem-solving that characterizes expertise. . . . the process of developing judgment is individualized, difficult and time consuming. . . .accreditation rules should emphasize how to apply theory and doctrine to actual practice, as well as encourage the process the development of professional judgment.” id. at 3-4, 7. building on best practices also addresses the importance of providing curricular pathways and concentrations to reinforce student learning and build connections across courses. building on best practices, supra note 2, at 52-58.] over the last ten years, georgia state law school has reflected on the carnegie report and other calls for reform, assessed its curricular offerings, and implemented a number of initiatives designed to improve the educational experiences of students. the full extent of these efforts is beyond the scope of this paper; rather, this paper will describe the georgia state law school’s health law certificate as a model for providing the kind of direction and integrated learning experiences that have been called for. in doing so, we connect the features of our program to best practices in legal education, as well as the needs of the legal profession. the development of a health law certificate by 2011, georgia state law had grown its health law faculty to several professors, representing substantial breadth, depth, and expertise in this rapidly growing area.[footnoteref:9] informed by recent critical analyses of legal education,[footnoteref:10] the georgia state health law faculty decided to develop a health law certificate program to allow students to develop core competencies in health law through a coherent curricular path. the faculty performed its analysis of what should be required with particular attention to the carnegie report[footnoteref:11] and best practices.[footnoteref:12] these resources emphasized the importance of providing students a well-rounded curriculum that includes simulation,[footnoteref:13] as well as real-world experiential learning opportunities,[footnoteref:14] thus integrating the teaching of theory, doctrine, and practice.[footnoteref:15] the faculty also noted that a 2011 aba house of delegates resolution echoed these recommendations in directing the aba to “take steps to assure that law schools . . . provide the knowledge, skills, values, habits and traits that make up the successful modern lawyer . . . [and] implement curriculum programs intended to develop practice ready lawyers, including . . . capstone and clinical courses that include client meetings and court appearances.”[footnoteref:16] the georgia state health law faculty heeded these recommendations in developing the framework for the health law certificate program. the incorporation of experiential education was a central value in the development of the certificate program. [9: georgia state law now has 12 faculty and 10 faculty fellows and adjunct faculty members teaching in the area of health law, which comprises six major areas, (health and business regulation, public and environmental health, health equity and social justice, bioethics and legal medicine, and health sciences and technology) and includes the on-site health law partnership (help) legal services clinic and more than 20 courses and externships, health law: quality & access, health law: finance & delivery, health care transactions, health care fraud and abuse, public health law, bioethics, hiv/aids and the law, food and drug law, genetics and the law, human subjects research law and ethics, law and health equity, mental health and the law, forensic medicine, and biotechnology, law, policy and ethics. for a complete listing of the health law curriculum, go to http://clhs.law.gsu.edu/education/health-law-courses/.] [10: a wide variety of resources were reviewed during the course of discussions. (1) background reading on health law programs included: (a) lawrence e. singer & megan bess, combining pedagogy and practice: creating a 21st century health law curriculum, 37 j. l. med. & ethics 852 (2009) (discussing process for developing health law curriculum at loyola-chicago); (b) diane e. hoffmann, a health law practice workshop: bridging externship placements and the classroom, 37 j. l. med. & ethics 513 (2009) (discussing integrating health law externships through a course targeted at health law topics and skills); (2) background reading on curriculum reform included: (a) new york state bar association, report of the task force on the future of the legal profession (feb. 2011), available at http://bestpracticeslegaled.files.wordpress.com/2011/03/taskforcereport.pdf, particularly discussion on educating and training new lawyers, at 36-47) (b) ali-aba, critical issues summit, equipping our lawyers: law school education, continuing legal education, and legal practice in the 21st century (2010) (final recommendations at http://www.equippingourlawyers.org/documents/summit_final09.pdf); and (c) aba, section of legal education and admissions to the bar, standards review committee, student learning outcomes subcommittee, draft for april 2-3, 2011 meeting, standard 302, learning outcomes; standard 303, curriculum (the final version of the learning outcomes standard was adopted, along with other revisions, at the aba’s august 12, 2014 annual meeting. the complete revised standards are available at http://www.americanbar.org/groups/legal_education/resources/standards.html); (c) hanover research council, health law programs (february 2010) (examining health law programs at various law schools across the country) [hereafter “2010 hanover report”]. the faculty conducted an analyses of the literature, as well as information about the gsu program in health law.] [11: carnegie report, supra note 2. ] [12: best practices, supra note 2.] [13: simulation-based courses are “courses in which a significant part of the learning relies on students assuming the roles of lawyers and performing law-related tasks in hypothetical situations under supervision and with opportunities for feedback and reflection.” best practices, supra note 1, at 179. simulation-based courses can achieve educational goals more effectively and efficiently and develop professional skills and understandings essential for practice. see best practices, supra note 2 at 179–88. aba standard 304(a) states, “a simulation course provides substantial experience not involving an actual client, that (1) is reasonably similar to the experience of a lawyer advising or representing a client or engaging in other lawyering tasks in a set of facts and circumstances devised or adopted by a faculty member…2016-17 aba standards and rules of procedure for approval of law schools available at https://www.americanbar.org/content/dam/aba/publications/misc/legal_education/standards/2016_2017_standards_chapter3.authcheckdam.pdf. ] [14: experiential courses generally are those courses that rely on experiential education as a significant or primary method of instruction, and include simulation-based coursers, in-house clinics, and externships. id. at 165–67.] [15: id. at 97. ] [16: aba resolution and report, adopted as revised august 2011, available at http://www.abanow.org/2011/07/2011am10b/.] the development process was an iterative one. after identifying key knowledge, skills, and values for the proposed program, the health law faculty mapped the health law curriculum to identify the knowledge, skills, and values taught in each existing health law course in the curriculum. the faculty studied the map to ensure that a certificate student would achieve an appropriate distribution of desired outcomes based upon the proposed certificate requirements. additionally, local attorneys, representing a wide range of health law practices, including major law firms, hospitals, state and federal government agencies, and legal services organizations, participated in focus groups to provide feedback on the proposal to ensure that students obtaining a certificate through gsu’s program would be equipped with the necessary knowledge, skills and values to be effective legal professionals in the health law field. four key conceptual themes underlie the certificate program. first, health law is a broad, general field of practice. competent health lawyers are usually generalists, working in, among other things, corporate, administrative and regulatory, tort, contract, and employment law. as generalists, their skills are applied to the demands of diverse legal work, which encompasses a broad array of general and specific laws affecting health and health-related organizations in a wide range of public and private practice settings. second, contemporary health lawyers need to have a solid and well-rounded background and be able to work with professionals from other non-legal, health-related disciplines. third, trends in legal education favor structuring a curriculum not only to integrate doctrinal knowledge and theories, but also to promote development of sound lawyering skills, effective interpersonal behaviors, and professional values, ethics, and habits.[footnoteref:17] finally, while the certificate program uses the health field as a lens and context for studying law, the required curriculum offers a foundation in knowledge, skills, and values that is readily transferable to other legal fields. students generally seek a health law certificate to acquire focused preparation for a career in health law. however, even students who do not plan a career in health law have recognized the benefits of following a prescribed curricular path the develops transferrable skills. participating in the certificate program promotes students’ resourcefulness and their ability to adapt successfully to rapidly changing legal, political, social, technological, and global environments, regardless of their ultimate area of practice. [17: carnegie report, supra note 1, at 27–28, 145–47. the carnegie report refers to three domains (knowledge, skills, and values) as the three “apprenticeships,” which can be summarized in its discussion of moving toward an integrative model of education for law schools. “law school should provide an initiation into all three aspects of that development [of professional competence and identity] . . . when thinking of the law school curriculum as a three-part model, whose parts interact with an influence each other, those elements are: the teaching of legal doctrine and analysis, which provides the basis for professional growth introduction to the several facets of practice included under the rubric of lawyering, leading to acting with responsibility for clients a theoretical and practical emphasis on inculcation of the identity, values, and dispositions consonant with the fundamental purposes of the legal profession.” id. at 194. this three-part framework of competencies in knowledge, skills, and values has also been adopted in the recent draft of aba standard 302 on “learning outcomes.” see supra, note 7. it is also reflected in the aba’s report that accompanies its recently-adopted resolution, supra note 11 (“we used to think that being a good lawyer simply meant knowing the law. today, we are more likely to think that good lawyers know how to do useful things with the law to help solve client problems. society has shifted from a static understanding of professional competence as memorized knowledge to a dynamic conception of lawyers adding value through judgment and their ability to manage to solve complex problems . . . the basic impulse [in legal education reform] is two-fold: to sharpen both our understanding of the competencies, skills, knowledge, practices and values of a good lawyer and our ability to measure progress toward those goals.” id. at 2–3. these principles are further supported in building on best practices, supra note 2.] core competencies in health law. to determine the specific course requirements of the certificate program, the health law faculty first identified the core competencies in health law each student should develop. “competency” does not mean mastery, but rather, at a minimum, an initiation to the fundamentals of the subject matters, skills, and values that are considered central to an understanding of and orientation to the health law field. the faculty also agreed that development of any of these core competencies – particularly in skills and values -does not depend on having specific health law courses to foster them. nevertheless, if the faculty deemed a specific knowledge, skill, or value a core competency, then it was imperative to ensure that every certificate student had an opportunity to develop that core competency. thus, knowledge competencies are typically delivered through the required courses, although they may be reinforced in other courses. a. knowledge competencies: the health law educational program offers foundational subject-matter content that initiates students into the key concepts, theories, doctrines, laws, policies, ethics, systems, and institutions in the health field. with respect to knowledge competencies, reflecting the breadth of the health law field, the faculty identified a wide range of topics (as well as specific u.s. statutes and regulations within those topics) to which every health lawyer should be exposed. these include: (1) access to, payment for, and cost regulation of healthcare in both the private and public sectors; (2) regulation of healthcare providers; and (3) provider and institutional liability to patients. these topics are all addressed, in varying degrees, in two required health law courses – one that primarily addresses provider and institutional liability and the other that primarily addresses healthcare regulation. students may opt to delve more deeply into these topics through health law electives. given that healthcare is a heavily regulated business, any student seeking a career in health law must understand administrative law, which addresses the ability of government to regulate, and corporate law, which addresses the legal structure of business entities that can influence how health care is delivered.[footnoteref:18] finally, the faculty identified exposure to either public health or bioethics as a core competency.[footnoteref:19] for this competency, students choose from among several course offerings in either track. while students who elect the public health track may miss exposure to bioethics and vice versa, the faculty agreed to limit the requirements to maximize students’ ability to take courses throughout the general law curriculum. moreover, there is sufficient overlap between the two to feel confident that, in most cases, students will be exposed both topics throughout the various certificate course offerings. [18: the decision to include administrative law and corporate law as required courses was strongly supported by the health law attorneys consulted while developing the program. it is also supported by the 2014 recommendations by the american health lawyers association regarding health law curricula which were issued after the launch of our certificate program. the american health law association, the ahla health law curriculum manual 9 (2014) (hereinafter ahla manual). the american health lawyers association is the u.s.’s largest educational organization devoted to legal issues in the health industry with active members who practice in law firms, government, in-house settings and academia, and who represent physicians, hospitals and health systems, health maintenance organizations, health insurers, life sciences, managed care companies, nursing facilities, home care providers, and consumers. see http://www.healthlawyers.org/about/pages/default.aspx.] [19: all core competencies and the relationship between core competencies and the requirements for the certificate are found at http://clhs.law.gsu.edu/education/health-law-certificate/core-competencies/.] in sum, the knowledge competencies for students enrolled in the certificate program are achieved by requiring two courses in the general law curriculum (administrative law and corporations), two specific courses in the health law curriculum, and one elective course from the health law offerings in either public health or bioethics.[footnoteref:20] more in-depth knowledge may be developed through additional electives in health law, as well as through the skills and values competencies described below. [20: on an on-going basis, there are approximately 6 offerings in public health and 5 in bioethics from which students may choose.] b. skills competencies: the health law certificate program offers instruction in the key cognitive, behavioral, and lawyering skills needed for successful professional practice and permits students to take advantage of similar offerings in the law program generally. just as many knowledge competencies are common to lawyers practicing in other legal fields, the skills competencies in health law are common to many fields of legal practice. the following core professional skill competencies were identified as critical to health law: (1) critical thinking and analysis, including the ability to apply common law, constitutional law, legislation, and regulations in health law contexts, (2) the ability to undertake both legal research and interdisciplinary research reflecting the interdisciplinary nature of health law; (3) the ability to engage in a range of types of writing in health law contexts, including writing for private and public audiences and for publication; (4) the ability to communicate effectively in a range of settings, including with colleagues, clients, and others privately and publicly; and (5) the ability to engage professionally in real-world contexts, including working collaboratively, engaging in creating problem-solving, developing practice management skills, and demonstrating cultural competency. students have multiple opportunities to develop professionally from courses across the health certificate curriculum. indeed, georgia state law has established a reputation for innovative, experiential teaching throughout its courses, and our health law faculty have been integral to that movement.[footnoteref:21] our faculty have infused experiential learning into traditional, doctrinal courses.[footnoteref:22] for example, students in the required health care liability course have two experiential learning exercises: an interview of “clients” about end-of-life treatment preferences and drafting of a complaint as a way of applying concepts of institutional liability to a group of institutions not discussed in class. both assignments have a mandatory self-assessment, which enables these assignments to be used in a larger class (25-50 students). students in our public health law classes regularly draft legislation or regulation as part of their coursework. students in gsu’s forensic medicine course have conducted mock hearings. these activities augment and complement the more in-depth training students receive through lawyering skills courses. [21: the infusion of experiential learning throughout the curriculum at georgia state law has been supported through the offering of “teaching innovation grants” by dean steven kaminshine. see also, building on best practices, supra note 2 at 427. additionally, gsu professor andrea a. curcio reported on experiential learning activities across georgia state law’s curriculum at the educating tomorrow’s lawyer’s conference held at the university of denver in october 2014 through a video of participating faculty (available at http://law.gsu.edu/practice-based-learning/ under “hands-on learning in the curriculum”). the college is also home to the health law partnership (help) legal services clinic, which is an interdisciplinary collaboration among georgia state law, atlanta legal aid society, and children’s healthcare of atlanta that allows students to develop professionally while representing clients and working side-by-side with physicians, social workers, and other health professionals (information available at http://law.gsu.edu/clinics/help-legal-services-clinic/).] [22: see courtney l. anderson, jessica gabel cino, nicole g. iannarone, leslie e. wolf, “incorporating experiential learning into every class: required courses, seminars and live-client representation” in experiential education in the law school 63-84 (e. grant, s. simpson, k. terry eds., forthcoming 2017).] all certificate students are required to take a lawyering skills course because the faculty believes it is the experience, rather than exposure to the substantive content, that is essential to student development. the goal is for students to have extensive experiences engaged in realistic lawyering work.[footnoteref:23] students may satisfy this requirement through enrollment in any of the in-house clinics (including tax and investor advocacy), externships, or simulation classes (e.g., negotiation).[footnoteref:24] however, gsu offers an increasingly rich range of lawyering skills options that are health law specific. gsu’s medical-legal partnership clinic, the health law partnership (help) legal services clinic, provides students with the opportunity to represent low-income children and their families in a range of cases with the goal of improving the children’s health.[footnoteref:25] a course in health legislation and advocacy engages students in working with community partners, developing proposed legislation and shepherding it through the legislative process. gsu also offers several externships that allow students to work in health law practice environments, including with the centers for disease control and prevention, the u.s. department of health and human services, the veteran’s administration, and the georgia hospital association. other options include innovative courses that teach doctrine in context through either direct client interaction or simulation. for example, students in law and health equity class learn about the social determinants of health and apply legal analysis of those concepts while working with members of atlanta neighborhoods to address issues that negatively impact the community’s health.[footnoteref:26] additionally, students enrolled in a new team-based and client-oriented capstone course, the health care transactions practicum, learn how to negotiate and draft deals through realistic simulations carried throughout the semester. the course provides students the opportunity to hone critical skills in drafting, reviewing, and negotiating health care contracts; applying health laws and regulations, conducting due diligence, and collaboration.[footnoteref:27] it is co-taught by a full-time faculty member together with two local attorneys who focus their practices in health law. the course was designed on the kinds of work that the practicing attorneys wished their entry-level attorneys knew how to do.[footnoteref:28] [23: this responds to one of the issues addressed by best practices: law schools not fully committing to preparing students for practice. see best practices, supra note 2, at 17. ] [24: gsu’s rich array of experiential offerings and the mix of both real and simulated practice environments meet the best practices identified for experiential education, see building on best practices, supra note 2 at 162-187. ] [25: information about our help legal services clinic is available at our center website: http://law.gsu.edu/clinics/help-legal-services-clinic/.] [26: for a full description of law and health equity, see incorporating experiential, p. 81-83. more information about this course is available at: http://clhs.law.gsu.edu/2014/09/09/hands-course-addresses-health-disparities-local-neighborhoods/. ] [27: see http://clhs.law.gsu.edu/2014/11/28/health-car-transactions-course.] [28: id.] in addition to the lawyering skills course requirement, students further their analytical skills through the certificate writing requirement, which must be based on a health law topic. the law school already requires a research paper as a requirement for graduation. certificate students can use their health law paper to meet their graduation requirement or may do an additional health law paper.[footnoteref:29] most health law topics require research of non-law resources. accordingly, the required paper allows students to develop their interdisciplinary research skills, as well as their communication skills. the writing requirement also provides an opportunity for health law professors to mentor students as they investigate important issues of health law, and to assist them in seeking publication opportunities as appropriate. several faculty have helped students to publish in law and non-law venues, which has fostered students’ professional development.[footnoteref:30] [29: the ahla encourages a “capstone” course with a strong writing component, which is consistent with gsu’s writing requirement. ahla manual, supra note 13, at 13-14.] [30: see, e.g., katie hanschke (student), leslie e. wolf (faculty) & wendy f. hensel (faculty), the impact of disability: a comparative approach to medical resource allocation in public health emergencies, 8 st. louis u. j. health l. & pol’y 259 (2015); jessica d. gabel (faculty) & karyn d. heavenrich (student), reigning in the wild west: the necessary outcomes and inevitable pitfalls of reforming forensic science, 24 alb. l.j. sci. & tech. 81 (2014); leslie e. wolf (faculty), mayank j. patel (student), brett a. williams (student), jeffrey l. austin (student) & lauren a. dame, certificates of confidentiality: protecting human subject research data in law and practice, 14 minn. j.l. sci. & tech. 11 (2013); rachel l. hulkower (student) & leslie e. wolf (faculty), federal funds for syringe exchange programs: a necessary component toward achieving an aids-free generation, 22 annals health l. 307 (2013). jonathan todres (faculty) & michael baumrind (student), human trafficking: a global problem with local impact, ga. b.j. at 12 (2012); jessica d. gabel (faculty) & ashley d. champion (student), regulating the science of forensic evidence: a broken system requires a new federal agency, 90 tex l. rev. 19 (2011).] the requirement for experiential education in the health law context allows students to gain insight and develop critical skills and connections needed for a successful health law practice. it also means that clinical and other faculty can have a significant impact on students’ professional development. often, faculty who are engaged in clinical pedagogy develop an accurate and deep understanding of a student’s skills, weaknesses, and abilities. this intimate knowledge of a student’s capability means that faculty engaged in experiential teaching are able to transmit to potential employers specific examples of a student’s skills and experience in a way that is more meaningful than a grade report. additionally, clinical and other experiential faculty are connected to practice and have a wide network that enables them to assist students in securing opportunities for employment, fellowships, and advanced degrees that may enhance their professional development. finally, the requirement for experiential learning as part of the certificate program is a way to integrate all of a student’s learning in the health law area. this knowledge is transferable to any practice, and will have lasting benefits for certificate program students as well as students from the general jd program who take health law classes as electives. c. values competencies: in addition to developing specific knowledge and skills, the health law certificate program fosters professional ethics and values, including habits of mind and mindsets that promote the responsible, civil, and ethical practice of law generally and in the health law field particularly. just as many knowledge and skill competencies are developed through the law program generally, the values-oriented competencies in health law are common to all fields of legal practice. core competencies in professional values in health law are the abilities to: (1) appreciate how professional ethics plays out in health law contexts; (2) engage in self-reflection and self-awareness, including the ability to self-critique and commit to life-long learning and self-care; (3) develop professional identity; (4) retain sense of personal and professional fulfillment; (5) treat others with respect and civility; (6) promote justice in health; and (7) commit to pro bono and community service.[footnoteref:31] [31: the core values-oriented competencies in health law are consistent with the best practice of integrating professionalism throughout the program of instruction and best practices for teaching professionalism generally. see best practices, supra note 1, at 79–91, and building on best practices, supra note 1, at 253–80.] as with the experiential learning requirements, the values competencies are taught throughout the health law curriculum, as well as through the general law curriculum. however, our lawyering skills, particularly the clinical courses, play a special role in developing these professional values, providing a context in which these issues become more salient and alive.[footnoteref:32] [32: see, e.g. building on best practices, supra note 2 at 203-04, 291-93. ] to further instill the professional values critical to a health lawyer, certificate students are also required to participate in fifteen hours of extracurricular activities or attend five approved health law events over a student’s second and third years of law school. such activities can promote many of the core values competencies the faculty identified, including leadership, community-building, developing professional identity, and commitment to pro bono service. this requirement lays the foundation for an actively engaged professional life. activities that students may use to satisfy this requirement include participation in student activities that have an educational component and require a significant time commitment, such as moot court,[footnoteref:33] law review, leadership in any student organization, or serving as a research assistant to a professor, the various health-related events sponsored by the various organizations on campus, including our center for health, law & society, our student health law association, and our partners in the business school and public health, and externally sponsored health law-related events, including state bar programs and health-related service activities.[footnoteref:34] [33: for example, gsu health law certificate students have participated in health law competitions, including the university of maryland compliance & regulatory competition, the siu national health law moot court competition, and the loyola health law transactions competition. ] [34: the center for law, health & society regularly sponsors events that educate about current issues in health law. for example, recent center events have addressed u.s. supreme court cases involving the affordable care act, state legalization of medical marijuana, and laws regarding end-of-life decision-making. the center also sponsors students to attend two annual continuing legal education events in health law and encourages students to attend the bar’s health law events. these activities provide greater exposure to health law as experienced by those in practice and an opportunity to network with those in the field. the center and student health law association (shla) also regularly bring practicing attorneys and others working in health law to campus to discuss their work in the profession that help students appreciate the various options available in health law and what the work entails. volunteer opportunities, from working with asylum seekers to blood drives, instill a commitment to serving the community that is an essential component of the profession, ] d. additional considerations in developing the requirements, the number of required credits was limited to ensure that students had the freedom to explore other topics in the general law curriculum or to dig more deeply into the rich health law course offerings.[footnoteref:35] accordingly, the certificate program requires only 16-21 credits, depending on courses selected. a minimum grade point average (gpa) is not required for a student to enter the certificate program so as not to discourage students who may have found their first year of law school particularly challenging and who are fully capable of overcoming those challenges in their upper-division years, especially where they may be motivated by a specific interest in the health law field. however, to ensure that certificate represents a level of achievement and education to the legal community, to qualify for a certificate a student must attain a minimum gpa (of 3.0) for all courses taken in satisfaction of the certificate requirements and the writing requirement. the minimum gpa for health law courses ensures that the certificate is evidence of a level of achievement in health law study. [35: gsu law regularly offers over 20 health law courses. http://clhs.law.gsu.edu/education/health-law-courses/] the benefits of the health law certificate program the health law certificate program provides multiple benefits to our students. the primary benefit is to provide a thoughtful pathway through the curriculum, designed to provide students with an integrated and progressive learning experience in the area of health law.[footnoteref:36] the combination of required courses, elective courses, experiential learning, and additional activities gives students necessary guidance through the curriculum that allows them to take advantage of the second and third years of law school in a way that meets their individual learning goals and better prepares them for their careers. an integrated health law curriculum offers students the opportunity for spiral learning – building and reinforcing the basics as they progress through courses and applying the core competencies in more advanced contexts.[footnoteref:37] a secondary benefit is the commitment of the health law faculty to giving enhanced advisement to certificate students. although all students in our law school are assigned a faculty mentor in their first year, these assignments are done administratively and do not reflect students’ educational and career interests. thus, students may not take full advantage of these relationships. assignment of a curricular-specific advisor through the certificate program can provide more targeted guidance. through the health law certificate program, students have faculty available not only to assist them in designing course packages in health law and from the jd program generally that match their intellectual and employment interests, but also to provide guidance on career paths, and to suggest opportunities for future professional development, such as dual-degree programs and fellowships in health law.[footnoteref:38] while not a primary reason for adopting the program, certificate programs with a robust experiential component can also be a way to distinguish a law school and attract students who are interested in a school’s existing curricular strength. for example, many students report that the reason they chose to attend georgia state law over other law schools is the help clinic and/or the health law certificate program. [36: carnegie report, supra note 1; best practices, supra note 2. ] [37: an integrated curriculum has three parts that interact and influence each other. best practices, supra note 2, at 255. those elements are first, the teaching of legal doctrine and analysis; second, introduction to the several facets of practice included under the rubric of lawyering; and third, a theoretical and practical emphasis upon inculcation of the identity, values, and dispositions consonant with the fundamental purposes of the legal profession. id.] [38: the georgia state college of law offers multiple dual-degree programs, including programs in health administration and business and in public health. (see http://clhs.law.gsu.edu/education/dual-degree-programs/). dual-degree programs can help develop additional domain knowledge and interdisciplinary skills that can be a competitive advantage in an increasingly complex practice environment. they also can provide contacts with potential employers or clients from those fields through involvement in the other departments’ professional and student organizations, activities, and networking opportunities.] the carnegie report notes the importance of on-going coordination among faculty at a law school in order to develop an integrated curriculum.[footnoteref:39] to ensure genuine integration, the health law faculty strives to reinforce in their respective courses the knowledge, skills, and values that have been identified as core, and to build on these domains across the health law curriculum.[footnoteref:40] this requires a level of self-conscious discipline and on-going collective discussion by health law faculty among themselves and with faculty colleagues across georgia state law to examine opportunities for integrating knowledge, skills, and values in each course and across courses. having a certificate program and a dedicated faculty to administer it provides motivation and structure for such on-going faculty collaboration to ensure the program’s quality and responsiveness to student needs. [39: “integrating the three parts of legal education would better prepare students for the varied demands of professional legal work. in order to produce such integrative results in students’ learning, however, the faculty who teach in the several areas of the legal curriculum must first communicate with and learn from each other. . . . [i]ntegration can flourish only if law schools can consciously organize their emphases through ongoing mutual discussion and learning.” executive summary, carnegie report, supra note 1, at 8, 10. development of a structured curriculum is also discussed in detail in the book, building on best practices, supra note 1.] [40: best practices also identifies the importance of an engaged, effective faculty. the effectiveness of full-time and part-time faculty in these types of courses is enhanced by “hiring qualified faculty, providing professional development opportunities, and assigning reasonable workloads.” best practices, supra note 1, at 178. ] as part of overall coordination efforts, the center committed to engage in assessments of the certificate program to ensure it continues to meet students’ needs. the health law field has changed dramatically over the past several decades, and it is expected to continue to change in response to changes in the delivery of health care in america and other external forces. for example, after the certificate program began, the american health lawyers association (ahla) issued recommendations for developing a health law foundation for law students.[footnoteref:41] for the most part, gsu’s required classes align with the ahla’s recommendations with respect to topics required to develop a foundation for health law students.[footnoteref:42] however, there are a few health law topics not covered in the required courses. for example, the required courses do not directly cover life sciences and the food and drug administration, but students may choose among electives that do.[footnoteref:43] the ahla also suggested requiring a course in labor and employment,[footnoteref:44] which is not currently required for the gsu certificate. however, the law curriculum contains a variety of labor and employment courses relevant to health law settings that students may take, and the requirements are sufficiently flexible to permit students to take such a class. however, gsu will consider whether changes are necessary in light of the ahla recent recommendations. if gsu does not change its requirements, the ahla’s recommendations can be incorporated into student advisement to provide better guidance to them about what courses employers might like to see. similarly, the ahla recommended covering the importance and limitations of public health law, including laws relating to vaccinations, tobacco control, and others.[footnoteref:45] while these topics are covered in several of the public health and in some of the bioethics offerings, not all certificate students are guaranteed to study these topics. requirements could be revised, or gsu could offer a blended bioethics and public health course that ensures coverage for all students. periodic assessment of offerings provides the opportunity to make appropriate changes and keep pace with the knowledge, skills, and values students need. [41: ahla manual, supra note 13.] [42: id. at 12–13. ] [43: id.] [44: id. at 14.] [45: id. at 13. the importance and limitations of public health law, including mandatory vaccinations, tobacco control, wellness programs, and emergency preparedness/quarantine powers.] although the certificate program is only entering its fifth year, the curriculum has already been reviewed to ensure that it is meeting the promises made through the program. specifically, faculty have reassessed whether gsu is delivering core knowledge, skills, and values in each course and across courses and whether changes are necessary based upon this review and on student feedback. certificate students are surveyed annually. while these responses have not resulted in substantive changes, they have highlighted some areas to change to improve the student experience, such as scheduling courses to facilitate completion of the certificate, especially in conjunction with our dual-degree programs. gsu continues to seek input from the legal community, which guides our assessment of how to respond to the ahla recommendations. on-going reflection and reconsideration of the effectiveness of the program is essential to maintaining a quality program and meeting students’ needs. the growth of the health law certificate program since its launch in 2012 suggests that gsu has been successful in creating a program that responds to students’ needs. in its first year, 7 students completed the requirements of a health law certificate. enrollment now averages 30 2ls and 3ls, with 15 students graduating each year. of the 40 students completing a health law certificate, 19 have graduated with honors[footnoteref:46]. [46: honors are awarded to students who earn a gpa of 3.6 or higher in their health law courses (required courses and electives).] conclusions in developing a health law certificate program, georgia state law sought to incorporate best practices in health law education. accordingly, the health law certificate program offers an integrated learning experience that reflects and reinforces foundational knowledge, skills, and values across the program and that leverages the strength of offerings in the jd program generally. the program is structured to offer a coherent, progressive learning environment where foundational knowledge, skills, and values are reflected and reinforced across courses. the program also promotes the habits of the reflective practitioner, encourages the skills of self-awareness and self-critique, and fosters commitment to life-long learning, and professional and community engagement. additionally, the health law certificate program is designed to meet the needs of students. the curriculum has sufficient breadth in health law, policy, ethics, and practical skills for students to appreciate the real world of health law practice as well as sufficient depth for them to be able to hone their skills and begin to develop expertise in their chosen area of health law interest. there is also sufficient flexibility to meet the needs of part-time and full-time students. because the practice of health law is not static, the faculty is committed to regular evaluation and, if needed, revision of the certificate program to ensure that its requirements correspond to the needs and realities of legal practice and the qualifications of future legal professionals. these experiences can be adapted and will inform other efforts to provide students with an integrated learning experience. 4 reviewed article 111 the law in the community module at northumbria university working in partnership with citizens advice as an effective teaching tool lyndsey bengtsson, callum thomson and bethany a’court, northumbria university, uk1 abstract this article discusses the law in the community module, which has recently been introduced into the curriculum at northumbria university. in this module, the students attend fortnightly workshops with their university tutor and volunteer each week at their local citizens advice. the aims of the module are to develop the students’ knowledge and professional skills and appreciation of access to justice challenges, whilst simultaneously advising members of the community through their volunteer work at the citizens advice. the purpose of this paper is twofold: firstly, to present and discuss data from a semi-structured interview with the academic responsible for the design and delivery of the module during the first year of its inception. secondly, to evaluate the pedagogical benefits and the benefits to the wider community. 1 lyndsey bengtsson, callum thomson and bethany a court are all lecturers and clinic supervisors in the school of law at northumbria university. reviewed article 112 key words: clinical legal education, law in the community, legal education, citizens advice, access to justice introduction the student law office (slo)2 at northumbria university has, for over 20 years, provided law students with the opportunity to develop their professional skills by providing free legal advice and assistance to members of the public.3 the law in the community module has recently been introduced into the curriculum and provides an alternative clinical option to the slo module4 to the law students. in this module, the students learn through a combination of fortnightly workshop groups with their university tutor and conduct volunteer work each week at the local citizens advice where they provide legal advice, assistance and/or legal education, under their supervision, to the organisation’s service users. northumbria university remunerates citizens advice for each student they supervise. 2 for further information about the slo please see the webpage https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-lawschool/study/student-law-office/ accessed 4 july 2020. 3 c sylvester, j hall and e hall (2014) ‘problem-based learning and clinical legal education: what can clinical educators learn from pbl?’ international journal of clinical legal education vol 4, pp.39-63; dunn, r (2017). ‘the knowledge, skills and attributes considered necessary to start day one training competently and whether live client clinics develop them’ doctoral thesis, northumbria university 4 the slo provides a full representation assistance to members of the public. students in their third year of the llb hons and mlaw exempting degree undertake the slo as a full year module. the module is also available to the legal practice course students as a 12 week module in the second semester. https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/ https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/ reviewed article 113 citizens advice is a charitable organisation which provides free, confidential and impartial advice to the local community on diverse areas including welfare benefits, family, housing and employment law.5 legal aid cuts introduced by the legal aid, sentencing and punishment of offenders act 2012 (laspo),6 together with cuts to charitable organisations,7 has resulted in a significant loss or reduction of legal services. the volunteer work undertaken by the students in this module increases the capacity of citizens advice to provide advice and assistance to those who may not otherwise be able to access legal services,8 whilst simultaneously allowing the students to develop their knowledge of the law and professional skills under this model of clinical legal education (cle). 5 for further information, see the webpage https://www.citizensadvice.org.uk accessed 4 december 2020. 6 the reforms being implemented through the legal aid, sentencing and punishment of offenders act 2012 (laspo) http://www.legislation.gov.uk/ukpga/2012/10/contents/enacted accessed 4 december 2020. 7 d morris and w barr (2013) ‘the impact of cuts on legal aid funding on charities’ journal of social welfare and family law vol 35 (1) pp79-94. see also citizens advice ‘ citizens advice submission to the justice enquiry into the impact of changes to civil legal aid under the legal aid, sentencing and punishment of offenders act 2012 https://www.citizensadvice.org.uk/about-us/policy/policyresearch-topics/justice-policy-research/access-to-justice-policy-research-and-consultationresponses/access-to-justice-consultation-responses/jsc-inquiry-into-the-impact-of-changes-to-civillegal-aid/ accessed 9 december 2020. 8 for a discussion on whether clinical legal education fills a gap in legal aid see e campbell (2014) ‘pro bono is great education for law students but they shouldn’t fill the gap left by legal aid cuts’ published in the conversation, https://theconversation.com/pro-bono-isgreat-education-for-lawstudents-but-they-shouldnt-fill-gap-left-by-legal-aid-cuts-34323 accessed 4 december 2020. see also d nicholson (2006) ‘legal education or community service the extra curricular student law clinic’ web journal of current legal issues, http://www.bailii.org/uk/other/journals/webjcli/2006/issue3/nicolson3.html accessed 4 december 2020. https://www.citizensadvice.org.uk/ http://www.legislation.gov.uk/ukpga/2012/10/contents/enacted https://www.citizensadvice.org.uk/about-us/policy/policy-research-topics/justice-policy-research/access-to-justice-policy-research-and-consultation-responses/access-to-justice-consultation-responses/jsc-inquiry-into-the-impact-of-changes-to-civil-legal-aid/ https://www.citizensadvice.org.uk/about-us/policy/policy-research-topics/justice-policy-research/access-to-justice-policy-research-and-consultation-responses/access-to-justice-consultation-responses/jsc-inquiry-into-the-impact-of-changes-to-civil-legal-aid/ https://www.citizensadvice.org.uk/about-us/policy/policy-research-topics/justice-policy-research/access-to-justice-policy-research-and-consultation-responses/access-to-justice-consultation-responses/jsc-inquiry-into-the-impact-of-changes-to-civil-legal-aid/ https://www.citizensadvice.org.uk/about-us/policy/policy-research-topics/justice-policy-research/access-to-justice-policy-research-and-consultation-responses/access-to-justice-consultation-responses/jsc-inquiry-into-the-impact-of-changes-to-civil-legal-aid/ https://theconversation.com/pro-bono-isgreat-education-for-law-students-but-they-shouldnt-fill-gap-left-by-legal-aid-cuts-34323 https://theconversation.com/pro-bono-isgreat-education-for-law-students-but-they-shouldnt-fill-gap-left-by-legal-aid-cuts-34323 http://www.bailii.org/uk/other/journals/webjcli/2006/issue3/nicolson3.html reviewed article 114 this article adds to the sparse literature in this area through an exploration of the design and implementation of this clinical module, including an evaluation of the pedagogical benefits and benefits to the wider community. the article will first set out the key features of the module. the second part will set out the methodology adopted in this article. the third part will discuss the design and implementation of the module, presenting data as a case study from a semi-structured interview with the academic responsible for its design and who was module leader during its first year. the aims of the module will be explored, together with challenges faced during the design and implementation stages. the fourth part of this article will analyse the benefits and limitations from a student and community perspective from the authors’ own experience of teaching this module during its first two years. introducing the law in community module working with citizens advice as a model of cle law schools working in partnership with external organisations and indeed, citizens advice is not a new concept in cle. 9 there is an increasing use of citizens advice as 9 for an example of law schools working in partnership with external organisations, see l bengtsson and a speed (2019) ‘a case study approach. legal outreach clinics at northumbria university’ international journal of clinical legal education vol 26 no 1 pp.179-215; m castles (2016) ‘marriage of convenience or a match made in heaven? collaboration between a law school clinic and a commercial law firm’ international journal of clinical legal education, vol 23, pp. 7-47; l bleasdalehill and p wragg (2013) ‘models of clinics and their value to students, universities and the community in the post 2012 fees era’ international journal of clinical legal education, vol 19, pp.257-270. reviewed article 115 a means of furthering cle; for example, in the university of plymouth10, birmingham city university11, university of central lancashire12, lancaster university13, university of northampton14, among many others. notwithstanding the increasing prevalence of such a partnership, there appears to be no typical module structure or uniform link with citizens advice. universities differ in their approach, from students volunteering and receiving a citizens advice qualification/accreditation, to the module being mandatory, or the citizens advice providing ad hoc assistance and experience for the student. the approach of the law in the community module at northumbria university is considered in the case study section below. this model of cle with universities working in partnership with citizens advice not only prepares students for the world of work15 but supports unmet legal need in the local community.16 access to justice is often the subject of debate among academics, practitioners, the judiciary, government and the public more generally, particularly so 10 university of plymouth, ’law clinic: work-based learning and volunteering’ (2018/2019) https://www.plymouth.ac.uk/uploads/production/document/path/9/9747/law_clinic_handbook.pdf accessed 24 august 2020. 11 birmingham city school of law, ’legal advice and representation unit’ https://www.bcu.ac.uk/law/student-experience-and-employability/legal-advice-representations-unit accessed 24 august 2020. 12 university of central lancashire, ’law clinic student support’ https://www.uclan.ac.uk/students/support/law_clinic.php accessed 24 august 2020. 13 lancaster university, ’law clinics’ https://www.lancaster.ac.uk/study/why-lancaster/law-clinics/ accessed 24 august 2020. 14 university of northampton, ’pro bono advice clinic’ https://www.northampton.ac.uk/aboutus/services-and-facilities/pro-bono-advice-clinic/ accessed 24 august 2020. 15 c sparrow ’reflective student practitioner – an example integrating clinical experience into the curriculum’ (2009) international journal of clinical legal education vol 14 (4) pp 70-76. 16 ibid. see also b waters and j ashton (2018) ’a study into situated learning through community leadership partnership’ international journal of clinical legal education, vol 25(2), pp. 4-47; f s bloch (ed.) (2011) the global clinical movement: educating lawyers for social justice, (new york: oxford university press). https://www.plymouth.ac.uk/uploads/production/document/path/9/9747/law_clinic_handbook.pdf https://www.bcu.ac.uk/law/student-experience-and-employability/legal-advice-representations-unit https://www.uclan.ac.uk/students/support/law_clinic.php https://www.lancaster.ac.uk/study/why-lancaster/law-clinics/ https://www.northampton.ac.uk/about-us/services-and-facilities/pro-bono-advice-clinic/ https://www.northampton.ac.uk/about-us/services-and-facilities/pro-bono-advice-clinic/ reviewed article 116 since the introduction of laspo on 1 april 2013. a key aspect of a person’s access to justice is the ability to receive legal advice and assistance, whether privately paying, through insurance or by way of state support. the concept of the state making payments to lawyers to act for members of the public is not a new concept. the formal legal aid system was introduced on the recommendation of the rushcliffe committee following the second world war, wherein it was stated that, ‘legal aid should be available in all courts to a wide income group and at a scale of contributions for those who could pay something towards costs but free for those who could not’.17 richardson and speed note that the benefits of legal representation for a client cannot be overstated; clients, ‘often lack the experience and skill required to identify the key issues in dispute and put forward their strongest legal arguments’ and, ‘legal aid is often regarded as the fourth pillar of the welfare state, alongside health, education and social security’.18 the introduction of laspo systematically dismantled aspects of the welfare state.19 it is appreciated that the conservative liberal democrat coalition government needed to reduce the financial deficit for the united kingdom, which had reached £956.4 billion in 2009/201020, but such drastic measures for the justice system have impeded access to justice. it was 17 k l richardson and a k speed (2019) ‘restrictions on legal aid in family law cases in england and wales: creating a necessary barrier to public funding or simply increasing the burden on the family courts?’ the journal of social welfare and family law, vol 41(2), pp. 135 – 152. 18 k l richardson and a k speed (2019) ‘restrictions on legal aid in family law cases in england and wales: creating a necessary barrier to public funding or simply increasing the burden on the family courts?’ the journal of social welfare and family law, vol 41(2), pp. 135 – 152. 19 b waters and j ashton (2018) ’a study into situated learning through community legal companionship’ international journal of clinical legal education vol 25(4) pp. 4-47. 20 g heung (2017) 'the underprivileged see no light in laspo act 2012' legal issues journal 23 (5) , pp. 26. reviewed article 117 envisaged in 2013 that the proposed cuts to legal aid would result in annual savings by the state of £220 million.21 there may be a cost saving, though this saving is reversed somewhat by the effects of the covid-19 pandemic. even just within the criminal courts, ’the government will need to devote additional spending to the criminal courts for up to two years after the crisis: £55m–£110m per year for two years would be sufficient to clear the backlog...and return waiting times to 2019/20 levels‘22, which is, ’somewhat ironic that this is the exact same amount that it was hoped would have now been saved through the civil and criminal legal aid reforms, although stage 1 of the legal aid sentencing and punishment of offenders act 2012 (laspo) review has indicated that the real amount saved to date is much lower’.23 there are serious non-financial consequences that must be addressed if the justice system is to continue functioning. in consequences of the dismantling of the system, the most foreseeable non-financial impact was the increase in self-representing litigants (otherwise known as litigants in person).24 there is a greater likelihood of litigants in person suffering access to justice issues compared with legally represented 21 ministry of justice, ’transforming legal aid: delivering a more credible and efficient system’, (9 april 2013), page 5 https://www.justice.gov.uk/downloads/consultations/transforming-legal-aid.pdf accessed 17 july 2020 22 the institute for government, ‘the criminal justice system: how government reforms and coronavirus will affect policing, courts and prisons’, page 8 (28 april 2020) https://www.instituteforgovernment.org.uk/sites/default/files/publications/criminal-justicesystem_0.pdf accessed 25 august 2020. 23 a speed, c thomson, and k richardson (2020) ‘stay home, stay safe, save lives? an analysis of the impact of covid-19 on the ability of victims of gender-based violence to access justice’ the journal of criminal law, https://doi.org/10.1177/0022018320948280 24 a speed and k richardson (2020) ‘restrictions on legal aid in family law cases in england and wales: creating a necessary barrier to public funding or simply increasing the burden on the family courts?’ the journal of social welfare and family law vol 41(2), pp 135 – 152. https://www.justice.gov.uk/downloads/consultations/transforming-legal-aid.pdf https://www.instituteforgovernment.org.uk/sites/default/files/publications/criminal-justice-system_0.pdf https://www.instituteforgovernment.org.uk/sites/default/files/publications/criminal-justice-system_0.pdf https://doi.org/10.1177/0022018320948280 reviewed article 118 parties, worsened by the erosion of legal aid eligibility, most notably in civil and private law family cases. there was a fall in civil law cases from, 724,243 prior to laspo, to 258,460 in 2015/2016.25 the lord chief justice provided data on the rise of litigants in person to parliament in january 2019 for private law family cases, whilst acknowledging the dearth of statistics pre-2012/2013, particularly for defended civil claims.26 the lack of data hinders the prospect of a comparative analysis of prelaspo and post-laspo statistical data. in the financial year 2012/2013, the lord chief justice provided that, ‘a total of 58% of parties were recorded as having legal representation in private law cases that had at least one hearing. in 2017/2018...this had reduced to 36% of parties’.27 the reduction in representation was noted as similar for both applicants and respondents.28 ‘in 2012/2013, 72% of applicants and 46% of respondents had legal representation, compared with 45% of applicants and 28% of respondents in 2017/2018.’29 given the withdrawal of legal aid for advice and representation, there needed to be a plug for this gap in legal assistance. the plug should be made by government, though this is unlikely in a system realistically 25 g heung (2017) 'the underprivileged see no light in laspo act 2012' legal issues journal 23 (5), pp. 28. 26 lord burnett of maldon, ’statistics on litigants in person’ (25 january 2019) https://www.parliament.uk/documents/commons-committees/justice/correspondence/250119-lcjstatistics-litigants-in-person.pdf accessed 13 july 2020 27 lord burnett of maldon, ’statistics on litigants in person’ (25 january 2019) https://www.parliament.uk/documents/commons-committees/justice/correspondence/250119-lcjstatistics-litigants-in-person.pdf accessed 13 july 2020 28 lord burnett of maldon, ’statistics on litigants in person’ (25 january 2019) https://www.parliament.uk/documents/commons-committees/justice/correspondence/250119-lcjstatistics-litigants-in-person.pdf accessed 13 july 2020 29 lord burnett of maldon, ’statistics on litigants in person’ (25 january 2019) https://www.parliament.uk/documents/commons-committees/justice/correspondence/250119-lcjstatistics-litigants-in-person.pdf accessed 13 july 2020 https://www.parliament.uk/documents/commons-committees/justice/correspondence/250119-lcj-statistics-litigants-in-person.pdf https://www.parliament.uk/documents/commons-committees/justice/correspondence/250119-lcj-statistics-litigants-in-person.pdf https://www.parliament.uk/documents/commons-committees/justice/correspondence/250119-lcj-statistics-litigants-in-person.pdf https://www.parliament.uk/documents/commons-committees/justice/correspondence/250119-lcj-statistics-litigants-in-person.pdf https://www.parliament.uk/documents/commons-committees/justice/correspondence/250119-lcj-statistics-litigants-in-person.pdf https://www.parliament.uk/documents/commons-committees/justice/correspondence/250119-lcj-statistics-litigants-in-person.pdf https://www.parliament.uk/documents/commons-committees/justice/correspondence/250119-lcj-statistics-litigants-in-person.pdf https://www.parliament.uk/documents/commons-committees/justice/correspondence/250119-lcj-statistics-litigants-in-person.pdf reviewed article 119 propped up by goodwill of the professionals therein, so it inevitably falls to law clinics, charities and other pro bono services to plug said gap. in other jurisdictions, there is a mandatory contribution to pro bono work by lawyers; for instance, pro bono work is a condition for admission to the new york bar and lawyers are required to dedicate a small proportion of hours to pro bono work in australia.30 waters and ashton recognise that, ‘initiatives have...been explored and implemented by the ministry of justice through investment in personal support units (psu), lawworks, law for life and the royal courts of justice advice bureau’.31 in consequence of general austerity measures and the cuts to legal aid, there is greater use of law clinics and services akin to citizens advice by the public. richardson and speed note: whilst these organisations provide a valuable service, they can by no means fill the gap left by legal aid because they are often unable to assist in complex or urgent matters. for example, the purpose of law school clinics is to provide a practical, educational benefit to its students, alongside providing free legal advice to the community. the cases those clinics take on therefore have to be suitable for students with little to no prior practical legal experience.32 30 g heung (2017) 'the underprivileged see no light in laspo act 2012' legal issues journal 23(5), pp. 50. 31 b waters and j ashton (2018) ’a study into situated learning through community legal companionship’ international journal of clinical legal education vol 25 ( 4), pp.4-47. 32 k l richardson and a k speed (2019) ‘restrictions on legal aid in family law cases in england and wales: creating a necessary barrier to public funding or simply increasing the burden on the family courts?’ the journal of social welfare and family law, vol 41(2), pp. 135 – 152. reviewed article 120 clinics are often unable to assist in complex matters, but that does not preclude the possibility entirely.33 for instance, sussex university won advice project of the year from citizens advice in 2018.34 of the 722 people helped over the academic year, 532 were “complex cases”, though this phrase is not defined in the award announcement and is a subjective term.35 this demonstrates the importance of clinics joining forces with citizens advice, who can advise on a wide range of complex legal issues. citizens advice is a vital service which offers legal advice and assistance to the public in 2,540 locations across england and wales, with 21,400 volunteers and 8,150 members of staff.36 the service helped 2.8 million people in 2018/2019 in person, or by telephone, email or web chat.37 furthermore, in 2018/2019, citizens advice saved the government and public services at least £485 million.38 citizens advice clients are often ‘the most disadvantaged in society with the greatest needs.’39 indeed a 2015 33 k l richardson and a k speed (2019) ‘restrictions on legal aid in family law cases in england and wales: creating a necessary barrier to public funding or simply increasing the burden on the family courts?’ the journal of social welfare and family law, vol 41(2), pp. 135 – 152 34 university of sussex, ’sussex law students win ’advice project of the year’ from citizens advice’ (29 october 2018) http://www.sussex.ac.uk/broadcast/read/46413 accessed 17 july 2020 35 university of sussex, ’sussex law students win ’advice project of the year’ from citizens advice’ (29 october 2018) http://www.sussex.ac.uk/broadcast/read/46413 accessed 17 july 2020 36 citizens advice, ’introduction to the citizens advice service’ https://www.citizensadvice.org.uk/about-us/introduction-to-the-citizens-advice-service/ accessed 13 july 2020 37 citizens advice, ‘our impact’ https://www.citizensadvice.org.uk/about-us/difference-wemake/impact-of-citizens-advice-service/all-our-impact/ accessed 3 december 2020 38 citizens advice, ’making a different: our impact in 2018/19’ https://www.citizensadvice.org.uk/global/public/impact/impactreport_2019_v6.pdf accessed 13 july 2020 39 citizens advice, ‘our impact’ https://www.citizensadvice.org.uk/about-us/difference-wemake/impact-of-citizens-advice-service/all-our-impact/ accessed 3 december 2020 http://www.sussex.ac.uk/broadcast/read/46413 http://www.sussex.ac.uk/broadcast/read/46413 https://www.citizensadvice.org.uk/about-us/introduction-to-the-citizens-advice-service/ https://www.citizensadvice.org.uk/about-us/difference-we-make/impact-of-citizens-advice-service/all-our-impact/ https://www.citizensadvice.org.uk/about-us/difference-we-make/impact-of-citizens-advice-service/all-our-impact/ https://www.citizensadvice.org.uk/global/public/impact/impactreport_2019_v6.pdf https://www.citizensadvice.org.uk/about-us/difference-we-make/impact-of-citizens-advice-service/all-our-impact/ https://www.citizensadvice.org.uk/about-us/difference-we-make/impact-of-citizens-advice-service/all-our-impact/ reviewed article 121 study showed that seven out of ten of their clients live in poverty.40 arguably, law schools should raise awareness of unequal access to justice and also to ‘implement strategies aimed at ameliorating these’.41 this wealth of experience within citizens advice and significant insight into charitable working within the access to justice arena can only benefit students and the local community. the public can attend citizens advice on an ad hoc basis for initial advice, application drafting and signposting to relevant services for full representation. citizens advice seek to partner with local organisations to extend their reach in assisting the public with accessing justice. key features of northumbria university’s slo law in community module within northumbria university, all students studying the llb (hons), llb (hons) with business and llb (hons) with international business degree may choose the law in community module as a second semester option during their third year. if they choose this as a module, it is worth 20 credits of their mark for the year.42 the module was introduced in the academic year 2018-2019 as an alternative clinical option to the 40 citizens advice, ‘briefing local citizens advice income profile’ https://www.citizensadvice.org.uk/global/public/impact/client%20poverty%20briefing%20%20england%20and%20wales%20-%20june%202015.pdf accessed 3rd december 2020. 41 l carasik (2016) ‘justice in the balance: an evaluation of one clinics ability to harmonise practical skills, ethics and professionalism within social justice mission’ southern california review of law and social justice 16, pp23. see also e campbell and v murray ‘mind the gap: clinic and the access to justice dilemma’ international journal of legal and social studies vol 2(3) pp. 94-106. 42 along with this module, the students also complete a dissertation which is worth 60 credits during the second semester. https://www.citizensadvice.org.uk/global/public/impact/client%20poverty%20briefing%20-%20england%20and%20wales%20-%20june%202015.pdf https://www.citizensadvice.org.uk/global/public/impact/client%20poverty%20briefing%20-%20england%20and%20wales%20-%20june%202015.pdf reviewed article 122 year-long 60 credit slo module. during the first year of this module, 30 students chose this option and in the second year, there were 22 students. the module involves six, two-hour workshops, which take place within the law school with the students’ university tutor and also weekly attendance for one day at the citizens advice under the supervision of members of staff who work there. the students therefore gain the benefit of learning from multiple supervisors.43 whilst at citizens advice, the students are involved in giving advice to clients at the daily face-to-face drop-in sessions. at these sessions, up to 60 members of the public can attend and be advised on a range of legal issues. the students are also involved in giving telephone advice to clients. they are exposed to a diverse range of practice areas, including welfare benefits, debt, employment, consumer protection, housing, immigration, tax and travel. they also undertake a wide range of activities on behalf of their clients, which involves some, or all, of the following: • interviewing clients, taking instructions and advising clients • undertaking legal research • drafting client statements and court documents • preparing case strategies and identifying appropriate next steps in relation to a case 43 for a discussion on the benefits of learning from multiple supervisors see l bleasdale-hill and p wragg (2013) ‘models of clinics and their value to students, universities and the community in the post 2012 fees era’ international journal of clinical legal education, vol 19, pp.257-270 and also l bengtsson and a speed (2019) ’legal outreach clinics at northumbria university’ international journal of clinical legal education vol 26 (1) pp 179215. reviewed article 123 • producing a legal information leaflet or a factsheet for members of the public • engaging in campaign work around the law or legal practice at the end of the module, the students are assessed by way of a portfolio, which is securely stored at the offices of citizens advice throughout the module and only brought into the university on the specified hand in day. the portfolio contains both their workshop work and live client work undertaken at citizens advice throughout the module.44 the same assessment criteria are applied for both the workshop work and work undertaken at citizens advice.45 within their portfolio, the students also include a reflective journal, which represents the student account and associated reflections on the module. morrison notes that a reflective journal offers ‘personal, academic, professional and evaluative development’.46 allowing the students to reflect in a journal as the module progressed is more authentic than asking a student to write an essay at the end. as crowley highlights, the student reflective journal leads to the development of self-awareness, ’inculcating a greater awareness of their personal and academic development.’47 44 the workshop work is printed at the university and put on their portfolio when they next attend citizens advice. in terms of their live client work, clients are asked to sign an agreement authorising the students to put the work they have done on the case into their portfolios. this is explained in further detail during the case study. 45 the assessment criteria for the portfolio is divided into 7 grade descriptors: knowledge and understanding of the law/legal practice, written communication skills, research skills, case and task management and strategising, teamwork skills including contribution to community based project and workshops, oral communication skills and reflective analysis and insight. 46 k morrison (1996) ‘developing reflective practice in higher degree students through a learning journal’ 21(3) studies in higher education pp., 317-332 doi: 10.1080/03075079612331381241 47 l crowley (2020) ’the family law clinic at ucc understanding the law in the classroom and beyond’ international journal of clinical legal education vol 27 (3), pp 175-228. https://doi.org/10.1080/03075079612331381241 reviewed article 124 methodology a two-hour semi-structured interview took place with the academic responsible for designing and implementing the module, ana speed.48 the interview was recorded and transcribed. the data from the interview will be presented as a case study arising from the long interview method of data collection. woodside, who also refers to mccracken, states that the typical features of long interviews include49: (a) a two to six-hour, face-to-face meeting with the interviewer and respondent; (b) interviewing the respondent in his or her life space, that is, the environment related to the topic under study; (c) asking open-ended, semi-structured questions with deeper exploration of unexpected topics related to the study as opportunities occur; (d) tape recording of responses (when not disruptive) during the interview; (e) verification of responses by triangulation of research methods (e.g., comparing answers with data from direct observation and documents); and (f) developing thick descriptions of individual cases (individual customers’ buying and using behavio[u]rs). woodside’s identified indications of the long interview method are used within this study. as aforesaid, the two-hour semi-structured interview took place with the academic responsible for designing and implementing the module. the limited ability 48 ana speed is a solicitor tutor in the student law office at northumbria university. 49 a g woodside, case study research : core skills in using 15 genres, emerald publishing limited, 2016, pp 274, proquest ebook central, https://ebookcentral.proquest.com/lib/northumbria/detail.action?docid=4717024. https://ebookcentral.proquest.com/lib/northumbria/detail.action?docid=4717024 reviewed article 125 to generalise is a particular disadvantage of long interview data collection using one participant,50 though generalising is not the main purpose of this study; rather the aim is to evaluate the law in the community module to assist with development of the module at northumbria university and to showcase the possibility of this model being used in other aspects of cle or at other universities. this approach, therefore, does not necessarily affect the validity and value of case study research from a generalisability perspective, which was highlighted by johansson (2003), merriam (2009) and stewart (2014), as cited by harrison et al.51 a framework of questions was used to guide the interview and to address key considerations, such as how the module was designed, the impetus for its introduction and any challenges faced during the design and implementation. in consequence of the covid-19 pandemic, the participant was interviewed over microsoft teams, which is akin to the ‘life space’ that was adopted towards the end of the module as a result of the prohibition on persons entering the university and citizens advice during the uk lockdown period. as regards the third of woodside’s typical features, the participant was asked open-ended questions to facilitate a semi-structured interview, thereby allowing the participant to develop their responses and allowing the 50 a g woodside, case study research : core skills in using 15 genres, emerald publishing limited, 2016, pp. 277, proquest ebook central, https://ebookcentral.proquest.com/lib/northumbria/detail.action?docid=4717024. 51 h harrison, m birks, r and j mills (2017), ’case study research: foundations and methodological orientations’, forum qualitative sozialforschung / forum: qualitative social research, 18(1), art. 19, http://nbn-resolving.de/urn:nbn:de:0114-fqs1701195. http://nbn-resolving.de/urn:nbn:de:0114-fqs1701195 reviewed article 126 interviewer not to be curtailed by a fixed structure, but to further explore unexpected topics related to the study. the ability to learn the reasons for certain responses and to use probing questions is an advantage of this research method.52 as regards the fourth of the typical features, there was a recording taken of the interview to allow considerable analysis of the responses. the verification of the responses by triangulation of research methods arises from the authors’ observations from teaching on the module, as well as from anonymous feedback of the students in the ordinary module appraisal and from materials used in the development and progression of the module, including the module handbook and workshop materials. this approach is a particular strength of using the long interview research method, which also seeks to mitigate the inherent potential issue of researcher bias, often associated with case studies and this method of data collection.53 the descriptions, evaluations and consequent developments that follow in this article satisfy the final typical feature of the long interview method outlined by woodside. the study received ethical approval from northumbria university and the academic who agreed to the interview signed an informed consent form. the consent form 52 a g woodside, case study research : core skills in using 15 genres, emerald publishing limited, 2016, page 276, proquest ebook central, https://ebookcentral.proquest.com/lib/northumbria/detail.action?docid=4717024 53 a g woodside, case study research : core skills in using 15 genres, emerald publishing limited, 2016, page 275, proquest ebook central, https://ebookcentral.proquest.com/lib/northumbria/detail.action?docid=4717024 https://ebookcentral.proquest.com/lib/northumbria/detail.action?docid=4717024 https://ebookcentral.proquest.com/lib/northumbria/detail.action?docid=4717024 reviewed article 127 reminded the participant that she could withdraw from the interview at any stage and her participation was voluntary. permission was given to record the interview. the qualitative data from the semi-structured interview and the authors’ views, open a window to the value of this module.54 however, future research involving a survey or interviews with staff at citizens advice, a client questionnaire to the service users and focus groups with the student volunteers over a few years is needed to build upon this research. the next part of the article sets out the data from the semi-structured interview with ana speed, the academic responsible for the design and implementation of the module. case study the design and implementation of the law in community module during the summer of 2018, ana was tasked with the design and implementation of the law in community module (the module). she highlighted that the aim of the module is for students to gain the practical legal experience and develop their 54 s rahman (2017) ‘the advantages and disadvantages of using qualitative and quantitative approaches and methods in language “testing and assessment” research: a literature review’ journal of education and learning 6(1), pp.102-112. reviewed article 128 professional skills. she explained that ‘northumbria university intended to provide law students with a clinical experience, whether they were undertaking the llb or mlaw degree.’ the slo, at the time, did not have capacity to supervise llb students in addition to mlaw students, so the law in community module was created to enable students to obtain practical legal experience and develop their professional skills. the addition of the module was a useful tool in maintaining the number of students in the slo. without such a module, there would have been around a further six to eight firms, which would have required additional staff supervision and additional live client enquiries. furthermore, the module gives students another clinical option, one which is shorter alongside a dissertation to the year-long slo module. as well as aiming to provide the students with a clinical experience, ana explained that ‘clinical modules typically receive a very high feedback rate’ which was further inspiration for designing this module. she believes that the high level of feedback is due to a combination of the fact that students tend to build relationships with supervisors, which they would not do on an ordinary black letter law module and secondly it is such a different way of learning to what students are used to. these modules boost student satisfaction rate, thus benefitting the law school and university as a whole. there is a greater focus on student satisfaction with the introduction of the national student survey and the teaching excellence framework (tef).55 55 for specifications see https://www.gov.uk/government/publications/teaching-excellence-andstudent-outcomes-framework-specification accessed 3 december 2020. https://www.gov.uk/government/publications/teaching-excellence-and-student-outcomes-framework-specification https://www.gov.uk/government/publications/teaching-excellence-and-student-outcomes-framework-specification reviewed article 129 offering a law in the community module, coupled with a dissertation, can impact positively on student satisfaction. due to the nature of the module and the fact that an external organisation is involved, there was an abundance of additional legal and administerial duties and challenges to comply with at design and implementation stage. ana described this as ‘3 months’ full time worth of work’. the help from her clinic team and those who engage in pedagogical research at northumbria university ‘was invaluable’. others had already designed clinic modules, so they were willing to provide constructive assistance. the director of the student law office and the colleague responsible for designing the street law module were able to offer their input and assisted ana with determining the appropriate workload and level of assessment for a 20-credit module. the first task for ana when designing the module was to find a partner organisation with which to work, to provide the students with a clinical experience and this involved a consideration of all those organisations with which the university had previously and currently worked. ana was aware that there may be potentially 60 students that would be enrolled on the module. there was one organisation who ‘stood out in terms of meeting capacity and live client experience’ and who ‘is famous for providing pro bono advice to people who cannot afford legal advice or assistance elsewhere’. this organisation was citizens advice. they were very receptive when they were initially approached by the university to be the partner organisation for this module. citizens advice agreed based on the fact the students would help increase their reviewed article 130 capacity to advise members of the public and they received remuneration in return. there was also the potential of volunteer retention if the students lived locally and were able to continue after their degree. having identified the partner organisation, funding needed to be secured. a proposal was put forward to an external funder, an alumnus of northumbria university, and it was agreed that the nature of the module was fitting with the funder’s objectives. the fund is managed by the university and is treated as a budget to pay citizens advice annually. this creates further administerial duties, for example invoicing to remunerate citizens advice, which needs to be done through the university procurement process and tendering, being a public sector organisation. as with any new module, proposal forms needed to be completed and signed off and standard university documentation needed to be written such as, the module handbook, the workshop materials, and the assessment criteria. in addition, there was legal documentation and documentation of citizens advice. the documentation included a legal agreement between the university and citizens advice, a privacy policy, which allowed the students to obtain consent from the clients of citizens advice to enable them to place confidential work on their portfolios, and a confidentiality agreement, which was signed by every student. citizens advice also reviewed article 131 have several policies and procedures that the students were required to read and to which they were to adhere.56 in addition, before starting citizens advice, the students are asked to complete an online training course, covering several core areas, including reception duties, knowledge of the law, interviewing, conducting research, negotiating and recording cases. at the end of the online training, there is an online assessment, and the students must attain 80% for a pass. the students cannot begin their volunteer work at citizens advice until they have completed the training course and passed the assessment. ana explained that the intention is that by completing the same training as the volunteers already at citizens advice and having access to the same resources, the students will ‘hit the ground running’. ana made the online training available around 6 weeks before the module started, however a challenge during the first year was that some students instead completed this in the first few weeks of their volunteering, and this reduced the ability to undertake live client work straight away. ana explained that the number of policies and procedures with which the students were expected to familiarise themselves, in addition to the online training course, understandably left many students feeling as if there had been an “information overload” before the module had properly commenced. 56 these included the following: clear desk policy, client confidentiality policy, dealing with aggressive or abusive clients policy, health and safety policy, equality and diversity policy, dress code policy. reviewed article 132 at the very start of the module, an induction lecture took place. during this lecture, ana introduced the module and ensured that the students signed all the necessary forms to take over to citizens advice57. ana then took the students to citizens advice to introduce them to the staff, and the students were then given a tour of the building.58 at this point, the students agreed with citizens advice the day that they would attend each week based upon their university timetables and availability of supervisors at citizens advice. this presented another challenge, as citizens advice had capacity to supervise 6 students per day and it transpired that there were some days that were more convenient than others for the students. all students were scheduled for a suitable day to attend citizens advice during each week of the module. with regards to their scheduled day, ana acknowledged that she had not been completely clear about how to deal with students missing a week through illness. citizens advice were at capacity most days, so students could not rearrange their missed session. she, therefore, had to adopt a ‘strict line’ of refusing student requests to rearrange, which was better than using discretion to decide which excuse was appropriate for missing a week. this was useful, as between january and march, she had ‘around 20 requests from students to change sessions.’ the reasons for the requests ranged from illness, to family deaths, to work commitments. the answer remained 57 namely the confidentiality declaration, the student advisor agreement which sets out the roles and commitments of the students and citizens advice, training record, emergency contact form and risk assessment form 58 this tour was also mandatory to comply with citizens advice’s healthy and safety policy. reviewed article 133 the same for each request: citizens advice do not have capacity. a further consideration had to be the additional administration of changing sessions for students, whether that be administration for ana, or for staff at citizens advice. all questions and requests had to be made to ana direct, save for questions relating to the actual work, so that a consistent line could be taken. although there were no disabilities, chronic illnesses or disabilities disclosed at the time, if this were to arise in future, this would need special consideration in line with the university’s dssr procedure and in cooperation with student support and relevant programme leaders. bespoke arrangements could then be developed to cater for the individual students’ needs. for ana, the main challenge in designing the module was gdpr59, confidentiality and data security. the clients that the students advised remained the clients of citizens advice, as opposed to the university’s clients. there had to be a way, therefore, for the students to collect client data from their volunteer work at citizens advice to use on their portfolios. permission had to be obtained from the university for the students to use hard copy personal files, rather than electronic files, to satisfy gdpr, client confidentiality and data security. this meant a departure from the standard university electronic portfolio; therefore, a special exception had to be granted. for the special exception to be granted, ana had to show that she had exhausted all other options, including use of the popular software, pebblepad. 59 general data protection regulations 2016. reviewed article 134 online platforms, such as pebblepad, are not sufficiently secure and bespoke to protect confidentiality of client information. furthermore, students could have opened pebblepad on their home devices, which may not be a confidential environment. with a hard copy portfolio, students could only print it out, or would have to purposefully breach confidentiality by emailing the work from citizens advice, which would be an issue for citizens advice, rather than the university. it was agreed that the students would have to print and compile hardcopy portfolios and bring them to the university from citizens advice on the day that they were due to be submitted for assessment. an added challenge was how to get the students’ portfolios from citizens advice to the university at the end of the module for marking, as there were concerns around lost files and students taking files home. in this regard, it was ‘drilled in’ to students at their induction lecture and at regular intervals throughout the module, that their files must always be kept at citizens advice and at no point must they take them away from there, as it would breach client confidentiality. the only exception to this was on their very last day when they were directed to walk directly over to the university from citizens advice. ana explained ‘i went as far as to say that they should collect their files in a rucksack, zipped up’ and they were only allowed to put client information into their portfolios if the clients had signed the relevant consent form. indeed, this is a limitation of the portfolio, as some students may not obtain or receive consent from clients to allow their information to be included within the portfolio. reviewed article 135 regular review meetings were set up to take place between the university and citizens advice, to deal with any challenges or concerns. if something of concern arises, the organisation emails the concern to the university. ana explained that this worked well as feedback was forthcoming. however, more can be done to obtain feedback from the clients, and this could be developed with citizens advice. in addition to the administration associated with the clinical experience at citizens advice, the fortnightly workshops at the university also had to be designed. as well as wanting the students to develop their practical skills, ‘a key learning outcome on this module was understanding their experience in context.’ ana wanted the students to ‘contextualise their experience’ and develop ‘an understanding of the issues surrounding access to justice.’ this theme runs throughout the workshop tasks. students are given questions around access to justice to discuss and are set written tasks to complete following their workshops to develop their social justice awareness and appreciate the valuable role that they play in supporting unmet legal need. these workshops were designed by ana to allow the students to situate their experience, consider their role and explore what access to justice barriers are faced by individuals. within the workshops, ana was also keen to include an opportunity for students to reflect on their work at citizens advice and to consider feedback from their external supervisor. the module was therefore designed so that citizens advice provide not only day-to-day feedback to the students, but also two summaries of students’ performances with a mark of 1 to 5 in relation to how the students are reviewed article 136 performing. ana also highlighted that in theory, if a student does not attend citizens advice, but does attend the university workshops, the supervisor would ‘still have sufficient work on which to assess them, including reflective tasks detailing how they deal with the case, presentations, research report, blog article and legal writing’. this would allow the workshop tutor to assess the students against the requisite skills. the workshop tutor would also still see work from the portfolio, which should have written feedback on it from the supervisors at citizens advice. oral feedback could be written down by the students and included within the portfolio. ana was asked what she would change if she was to redesign the module. she said firstly, she would have had the students attend citizens advice for half a day every week rather than one full day. the students fed back that an introductory lecture, a workshop every two weeks and volunteering at citizens advice one day a week was a high workload for a 20-credit module, with which ana agreed. ana stated that it became apparent midway through the module’s first year that half a day a week would be better and would ‘still be an appropriate amount of work’ with a ‘similar level of experience”’ ana accepts that this may not be quite as extensive, but the students would still be carrying out the same tasks and types of work on the cases that they are working on by going in for half a day a week. ana also feels that there needs to be a way to streamline the administration attached to the module but states: reviewed article 137 maybe i have the blinkers on because i designed the module but unfortunately, i can’t envisage a way of streamlining that process while still adhering to the legal, gdpr requirements and making sure everything runs smoothly between us and the partner organisation. also, there is ‘an ongoing obligation on the module leader to liaise with the in-house university law department to ensure documents remain up-to-date’, including privacy policies and adhere to gdpr, as well as compliance with procurement and tendering. inevitably, this can be time consuming to work through the documentation and to draft and approve agreements. a report must also be provided each year to the external funder to detail how the module has progressed, including feedback from citizens advice and students about the module overall. the ongoing administerial duties is an issue that must be anticipated and managed by those contemplating developing similar modules. analysis of the law in community module as well the financial benefit to citizens advice, the module increases their capacity to advise and assist members of the community, thereby supporting unmet legal need.60 60 the literature is well established on the community benefit of cle. see, for example, s wizner (2001) ‘beyond skills training’ 7 clinical law review pp. 327-340; a sedillo lopez (2001) ‘learning through service in a clinical setting: the effect of specialization on social justice and skills training’ clinical law review 7, pp. 307-326; j giddings (2008) ‘contemplating the future of clinical legal education’ griffith law review 17( 1); w. warren h. binford (2008-09) ‘reconstructing a clinic’ clinical law review 15, pp. 283. reviewed article 138 in theory, the students should be of the same standard, if not better, as the existing volunteers at citizens advice, having completed two years of a law degree, completed the same training and having been provided with the same resources. this increases the capacity of citizens advice to assist with those unable to obtain legal advice and assistance elsewhere. during the first year of the module, the students advised a total of 475 clients and in the second year, a total of 73.61 the impact of the module to the community attracted media attention in two local newspapers where the students’ work in helping ’plug the legal aid gap’ was reported.62 this also had reputational benefits to the university. it is important to acknowledge, as ana mentioned, that the students only provide one-off advice to clients, so ‘it’s only as good as one-off advice can ever be’. however, in the authors’ experience of cle, one-off advice can often be sufficient to resolve the client’s problem and if not, the clients gain the benefit of being referred onto an organisation who may be able to help further.63 there may be a perceived risk of referral-fatigue when clients are signposted to third party services, however the clients are aware that they are accessing citizens advice rather than a 61 the number in the second year is substantially lower as a result of the fewer students who participated in the module and also the fact the module was cut short by 4 weeks as a result of the covid19 pandemic. the covid19 pandemic resulted in the students moving to online teaching and they could no longer undertake their volunteer work at citizens advice. the students completed the module by working on a simulated enquiry with their university tutor. 62 the chronicle ’legal aid cuts and nightmares leave citizens depending on law students‘ accessible at https://www.chroniclelive.co.uk/news/north-east-news/legal-aid-cuts-benefits-nightmares15973512 accessed 21 november 2020 and the journal ‘students help plug the legal aid gap‘ 24 march 2019, http://thejournal.newspaperdirect.com/epaper/viewer.aspx accessed 21 november 2020. 63 see l bengtsson and a speed (2019) ‘a case study approach. legal outreach clinics at northumbria university’ international journal of clinical legal education vol 26 (1) pp.179-215 for a discussion on how students giving one off advice at a local law firm could often refer clients on for further help and the benefits of this. https://www.chroniclelive.co.uk/news/north-east-news/legal-aid-cuts-benefits-nightmares-15973512 https://www.chroniclelive.co.uk/news/north-east-news/legal-aid-cuts-benefits-nightmares-15973512 http://thejournal.newspaperdirect.com/epaper/viewer.aspx reviewed article 139 service known for providing, or potentially providing, longer term legal services and retainers. it is important to ensure that clients are aware of the extent of the assistance being provided to them. it is important to explicitly document the limitations of the service, just as clock does with its community care letter, though it is acknowledged that clock perhaps requires greater emphasis through not providing legal advice64. the benefits of cle to students are well established,65 however the model adopted in the law in the community module ensures that students gain an appreciation of the access to justice challenges faced by their clients by going into the local community66 and contextualising their experiences in the fortnightly workshops. their legal knowledge, professional skills and understanding of professional conduct rules develop as a result of participating in the fortnightly workshops and volunteering at citizens advice. from the authors’ experience of teaching the workshops, each one effectively focuses upon all valuable skills that the students will need for both legal 64 ben waters and jeanette ashton, 'a study into situated learning through community legal companionship' (2018) 25 int'l j clinical legal educ 4, 29 65 the literature on cle and its educational benefits are extensive. see for example r grimes (1995) ‘legal skills and clinical legal education’ web journal of current legal issues vol. 3; r maccrate (2004) “yesterday, today and tomorrow: building the continuum of legal education and professional development” clinical law review, vol. 10; j giddings (2008) ‘contemplating the future of clinical legal education’, griffith law review vol. 15, pp.15; j hall , k kerrigan (2011) ‘clinic and the wider law curriculum’, international journal of clinical legal education, vol. 15, available at: http://www.northumbriajournals.co.uk/index.php/ijcle/issue/view/15 ; r dunn (2017). the knowledge, skills and attributes considered necessary to start day one training competently and whether live client clinics develop them. doctoral thesis, northumbria university. 66l bengtsson and a. speed (2019) ‘a case study approach. legal outreach clinics at northumbria university’ international journal of clinical legal education vol 26 (1) pp.179-215 http://www.northumbriajournals.co.uk/index.php/ijcle/issue/view/15 reviewed article 140 practice and other professions; notably, written and oral communication skills, negotiation and research to name a few.67 a study by walsh suggests that students lose their desire to engage in social justice as they continue their studies.68 evans highlights the importance of class content and reading, and supervision and reflection to ensure that social justice aspects of law are incorporated into clinical teaching.69 as previously discussed, the design of the workshop tasks allows students to develop their social justice awareness. in addition to this, working at citizens advice gives the students the opportunity to participate in policy work and to provide public legal education to citizens advice clients.70 participation in policy work allows the students to contribute to law reform.71 this gives students the opportunity to see how laws can be influenced and leads them to 67 for example, in workshop 1, students are tasked with taking part in an ‘auction‘. in groups, the students are provided with a list of skills and a ‘sum of money‘. the task involves formulating a strategy for which values/skills they will bid on and the sum of money they are prepared to pay for each skill/value. the workshop tutors found that this inevitably involved negotiation between the students within their groups when they were deciding the level of importance of each skill/value, prior to bidding in the auction. in workshop 3, students develop their written communication skills through a task where they are asked to discuss in groups the purpose of written correspondence and consider what could make written correspondence poor. the students‘ verbal communication skills are also developed throughout the workshops when they are tasked to present their work to the workshop tutor and the whole group. 68 tamara walsh, ‘putting justice back into education’ (2007) 17(1) legal education review 119, 131. 69 adrian evans et al australian clinical legal education: designing and operating a best practice clinical program in an australian law school (anu press 2017) 122. 70 it has been argued for years that students should undertake policy work: see for example s h leleiko (1979-80). clinical education, empirical study and legal scholarship. journal of legal education, 30(1), pp. 149. see also r dunn and r glancey (2019). using legal policy and law reform as assessment in a bone and p maharg (eds) critical perspectives on the scholarship of assessment and learning in law (pp.139-163). anu press. 71 r dunn, l bengtsson and s mcconnell (2020) ’the policy clinic at northumbria university: influencing policy/law reform as an effective educational tool for students’ international journal of clinical legal education vol 27(2), pp. 68-102. reviewed article 141 being more engaged, as they see it ‘may have a positive impact in generating change.’72 policy work also helps foster a social justice ethos, allowing students to identify any contentious issues and areas for reform.73 a social justice ethos is instilled in the students and as rosas argues, students who experience pro bono work while in law school are likely to continue to do so in their future careers as lawyers.74 policy work develops similar professional skills to that in live client work; however, they are developed from the perspective of research and law reform.75 students gain an appreciation as to why their participation in both the policy work and live client work can have a wider impact on society.76 the partnership between the university and citizens advice also enriches the student learning experience as the students learn from, and work under, at least two supervisors.77 giddings argues that a learning environment can be diluted where the 72 l curran (2007) ‘university law clinics and their value in undertaking client-centred law reform to provide a voice for clients’ experiences’ international journal of clinical legal education, vol 12, p107-108. 73 l f smith (2011) ‘fostering justice throughout the curriculum’ georgetown journal on poverty law and policy, vol 18(1), pp. 427. 74 c m rosas (2002) ‘mandatory pro bono publico for law students: the right place to start,’ hofstra law review vol. 30 (3), article 18 1069, 1078 75 r dunn, l bengtsson and s mcconnell (2020) ’the policy clinic at northumbria university: influencing policy/law reform as an effective educational tool for students’ international journal of clinical legal education vol 27(2), pp. 68-102. 76 r dunn, l bengtsson and s mcconnell (2020) ’the policy clinic at northumbria university: influencing policy/law reform as an effective educational tool for students’ international journal of clinical legal education vol 27(2), pp. 68-102. 77 l bleasdale-hill and p wragg (2013) ‘models of clinics and their value to students, universities and the community in the post 2012 fees era’ international journal of clinical legal education, vol 19, pp.257-270. see also l bengtsson and a speed (2019) ’legal outreach clinics at northumbria university’ international journal of clinical legal education vol 26 (1) pp. 179215. reviewed article 142 supervision is focused on controlling casework rather than student learning.78 the law in the community module arguably alleviates these concerns through its supervision model. citizens advice supervisors provide continuous feedback to the students on their work and performance alongside controlling the casework, which is a system analogous to many law clinic environments. however, in addition, the university workshop tutors facilitate the learning and development of skills and this is their sole focus, ensuring a rich learning environment. this not only provides students with more support and the opportunity to develop their skills, but as ana highlights, it is also reflective of practice. rather than being assessed by a single supervisor, which is common practice in legal clinics, they are provided with feedback from multiple supervisors at citizens advice, as well as their workshop tutor, who are likely to have different styles and approaches. the module also allows the students to gain experience and an appreciation of what it is really like to be a legal practitioner in order to decide whether this is the career that they want79 and specifically, the different areas of law in which they could practice. during their time at citizens advice, the students may be exposed to a wide variety of issues and areas of law. indeed, during the first two years of the module, the students advised in areas of: welfare benefits, debt, finance, employment law, 78 j giddings (2008) ‘contemplating the future of clinical legal education’ griffith law review 17 (1), pp.1-26 at 17 79 p childs, n firth and h d rijke (2014) ‘the gap between law student career aspirations and employment opportunities’ the law teacher vol 48 (1) pp. 51-68. j marson, a wilson and m van hoorebeek (2005) ‘the necessity of clinical legal education in university law schools: a uk perspective’ international journal of clinical legal education vol 7, pp. 29-43. reviewed article 143 consumer, education, health, housing, immigration, relationships, tax and travel. as curran highlights, students who are afforded experience in different areas of law may ‘have more choices about the areas of law they may wish to practice in.’80 the students may also advise and assist a number of clients on the same area of law. gaining experience in the same area of law is equally beneficial, as they are exposed to the same problem, but from different perspectives.81 if a student is interested in a particular area of law, they are informed by the university tutor at the outset that citizens advice will try to ensure that they gain experience in that area, however this is not guaranteed. the students are ultimately asked to advise and assist on where the legal need may be. it is important to note that the clinical experience embedded in this module could also be considered as a limitation. as this module is part of an llb degree, the students may not have any desire to progress into a career as a lawyer. students may feel that this clinical experience has been imposed on them. however, as noted above, the workshops and work undertaken at citizens advice develop key skills, which are valuable in professions, other than law. as kemp et al state ‘there are many ways in 80 l curran (2004) ‘innovations in an australian clinical legal education program: students making a difference in generating positive change’ international journal of clinical legal education, vol 6, pp.162-176 at pp.174. 81 e winkler (2013) ‘clinical legal education: a report on the concept of law clinics’, https://www.academia.edu/40214205/clinical_legal_education_a_report_on_the_concept_of_law_cli nics accessed 4 december 2020. https://www.academia.edu/40214205/clinical_legal_education_a_report_on_the_concept_of_law_clinics https://www.academia.edu/40214205/clinical_legal_education_a_report_on_the_concept_of_law_clinics reviewed article 144 which students can be given experience of law in the real world and provided with transferrable skills which they can then use in occupations other than being a lawyer.’82 this means that the module is undoubtably beneficial to students in terms of employability.83 employability is ‘a critical issue for both government and higher education institutions’.84 it is also important for teaching excellence and student outcomes framework (tef) and its emphasis on post-graduate employment.85 law students enter a competitive employment market on completion of their degree. practical work experience during their law degree increases self-confidence, practical experience and consequently, employability.86 many students are working alongside their studies, which is a barrier to gaining unpaid legal work experience87 and some students would not necessarily have the confidence to put themselves forward for 82 clinical legal education and experiential learning: looking to the future https://hummedia.manchester.ac.uk/schools/law/main/news/clinical-legal-education-finalreport28.09.2016.pdf accessed 3 december 2020 83 for a discussion on the benefit of cle in enhancing student's skill profile see r hyams (2008) ‘on teaching students to “act like a lawyer”: what sort of lawyer?’ international journal of clinical legal education vol 13, pp. 21-32; s caplow (2006) ‘clinical legal education in hong kong: a time to move forward’ hong kong law journal vol 26, pp. 229; f dignan (2011) ‘bridging the academic/vocational divide: the creation of a law clinic in an academic law school’ international journal of clinical legal education vol 15, pp. 75-84. 84 v saunders and k zuzel (2010) ’evaluating employability skills: employer and student perceptions’ bioscience education vol 15 (1) pp1-15, p1. 85 the proportion of graduates in employment or further study after six months of graduation is one of the six metrics to rate universities for the tef. 86 f. cantatore (2015) 'boosting law graduate employability: using a pro bono teaching clinic to facilitate experiential learning in commercial law subjects' legal education review vol 25(1), pp. 147172. see also l bleadale hill and p wragg (2013) ’models of clinics and their value to students, universities and their communities in the post 2012 fees era.’ international journal of clinical legal education vol 19, pp.257-270. 87 j alexander and c boothby (2019) ‘stakeholder perceptions of clinical legal education within an employability context’ international journal of clinical legal education vol 25 (3) pp. 53-84. https://hummedia.manchester.ac.uk/schools/law/main/news/clinical-legal-education-final-report28.09.2016.pdf https://hummedia.manchester.ac.uk/schools/law/main/news/clinical-legal-education-final-report28.09.2016.pdf reviewed article 145 work experience88. this module gives students the opportunity to undertake work experience within an organisation as part of their degree, thereby allowing them to develop skills and enhance their cvs. in addition to these employability benefits to students through the work experience gained at citizens advice, students could also benefit in terms of employability through forming and continuing relationships with citizens advice. indeed, as highlighted by ana, this one was of the reasons for citizens advice agreeing to be the partner organisation. these continued relationships would also provide long term benefits to citizens advice in terms of capacity. as regards the solicitors qualifying exam, it is noted that time spent ‘at a voluntary or charitable organisation such as citizens advice…’89 can constitute as qualifying work experience. a solicitor or compliant officer for legal practice (colp) would be required to confirm that the candidates qualifying work experience. it is pertinent to note that the solicitor or colp is not assessing competence as a solicitor; rather, that the work experience has taken place. the competence to practice is assessed by the sqe. although the benefits to students, citizens advice and the wider community have been highlighted, there were some lessons learnt from the module’s first year. the initial administration required at the first induction lecture, as highlighted by ana, 88 j alexander and c boothby (2019) ‘stakeholder perceptions of clinical legal education within an employability context’ international journal of clinical legal education vol 25 (3) pp. 53-84. 89 solicitors regulation authority, ’qualifying work experience for candidates’ https://www.sra.org.uk/trainees/qualifying-work-experience/qualifying-work-experience-candidates/ accessed 19 february 2021. https://www.sra.org.uk/trainees/qualifying-work-experience/qualifying-work-experience-candidates/ reviewed article 146 and the online training required, could not be streamlined in the second year. all administration and training were necessary. however, in response to the students in the first year feeling that there was an ‘information overload’, a short video was produced in the second year which, in the authors’ view, helped with this issue. the video was produced between northumbria university and citizens advice and was an excellent way of reducing information that needed to be given to the students on this module. the video gave an overview of what they should expect during their time at citizens advice and what is expected of them. students respond particularly well to video as an educational tool90 and indeed, informal feedback from the students was that they found this helpful at the outset. another change to the module in the second year was that the students’ time at citizens advice was reduced from one day per week to half a day. from the authors’ perspective, this was an appropriate and positive change. the students gained the same experience of client drop-in sessions and undertook the same range of tasks. overall, from the first few years of the module running, the participating students valued the blend of workshops and volunteer work at citizens advice and the opportunity to develop their professional skills whilst promoting access to justice. informal feedback from the students was that they feel that they developed valuable 90 r kay (2012) ‘exploring the use of video podcasts in education: a comprehensive review of the literature’ computers in human behavior vol 28 pp. 820-831 reviewed article 147 skills for the world of work and gained a direct insight into the access to justice many clients faced who attended the drop-in service: ’it's been challenging yet interesting module. i personally find that the knowledge gained will be a life changer in the future.’ ‘the practical nature of the module, with direct access to client advisory work at citizens advice, provides a fantastic opportunity to develop a range of interpersonal professional skills through experiential learning. these skills are further developed through university workshops and assessed tasks, focusing students' development on the legal practitioner context.’ conclusions the law in community module was designed with the aim of engaging law students in a model of cle which ensures they understand their experience in the vital context in which citizens advice operates. through the blend of workshops and weekly volunteer work at citizens advice, the students not only develop their professional skills, but also contribute to the greater public good. through the method of a long interview, this article provides an insight into the design and implementation of the module, together with challenges faced and lessons learnt. future research would be beneficial in this area; including client questionnaires to measure community benefit and student performance from the clients. interviews with supervisors at citizens reviewed article 148 advice to obtain their views on the module and focus groups with the students to measure student perceptions on the value of the module would also be beneficial. the authors would recommend that other law schools consider implementing a similar law in the community module into their curriculum. whilst we should all be realistic as to the administrative time and documentation involved, this model not only develops students’ professional skills, but also empowers students to better understand access to justice challenges and enables them to play a pivotal part in supporting their local community. editorial why do we do clinic and how on earth do we manage it? elaine hall northumbria university, uk elaine.hall@northumbria.ac.uk in this edition we continue the conversation linking values, intent, pedagogy and context to understand the complexity of clinic in the 21st century. we begin with a paper from martha simmons and marian mac gregor that challenges us to consider who can contribute to clinical work. their focus on students with disabilities and the challenges and opportunities of providing access to clinic is timely and compelling. we are witnessing an expansion of clinical programmes which can be an opportunity to ask ourselves where the evidence lies that some students are better suited to clinic than others, whether there are pre-existing attributes that fit students to serve our communities or whether social justice ideals demand that more diverse students get to benefit form a clinical experience. following on from their paper on emotional competency in interviewing[footnoteref:1] we have a new paper from colin james and felicity wardhaugh exploring the emotional impact of clinical work and the pedagogies and experiences that can support students in providing both client-centred practice and the kind of self-care that enables long term professional resilience. [1: ijcle 20, 2, 2014] ann thanaraj’s paper elaborates the theme of student development and identity, using a methodological framework unusual in legal studies. this phenomenographic approach offers the potential to capture data that has proved elusive in the past and others may find it helpful as a way of making more concrete their felt sense of what students gain from the clinic. we are grounded in the realities of sustaining clinic by our practice report from barbara preložnjak and juraj brozović, who describe the croatian context with great detail and energy. readers will immediately make the link to the key themes for sustainability identified by tribe mkwebu[footnoteref:2] and we welcome this paper and any others that colleagues might wish to share from their own countries. [2: mkwebu, t. (2015) a systematic review of literature on clinical legal education: a tool for researchers in responding to an explosion of clinical scholarship ijcle, 22, 3 mkwebu, t. (2016) unpacking clinical scholarship: why clinics start and how they last, ajle (3, 3) forthcoming, available online] we end this edition (as t.s. eliot predicted) at the beginning, with the voices of law students, by showcasing the winners of the 2016 pro bono essay competition at northumbria university. they sum up the various approaches to understanding clinical work: academic, idealistic, pragmatic and above all highly personal. we all have our motivations and our rewards, one model does not have to ‘win’ in order for clinic to flourish. as you will hopefully have heard through your networks, three organisations are coming together for the 2017 conference. we look forward to welcoming you to newcastle! ijcle – encle cleo the international journal of clinical legal education in association with the european network for clinical legal education and the united kingdom clinical legal education organisation conference 3-5 july 2017 at the university of northumbria, newcastle upon tyne, uk “bringing it all together: clinical legal educators in the 21st century university” clinicians wear many hats: teacher, group facilitator, project manager, lawyer, researcher, mentor, activist, administrator, supervisor, academic, fund raiser, practice manager, collaborator, role model, counsellor… this year’s conference continues our exploration of the key, often overlapping, issues arising for clinical legal education in the 21st century from the clinician’s perspective; juggling sometimes competing priorities and often making difficult choices. papers are invited which consider one or more of these themes below while still encouraging participants to locate their papers either mainly in one of those areas or by exploring the overlaps. themes: · the clinician and community needs · the clinician and research into the impact of clinic · the clinician and academic identity · the clinician and curriculum and student learning in particular, we would like to encourage participants to include student and other partners’ voices in their presentations, ideally through collaborative writing and presentation in person or through video calling or recordings. taking part presentations at ijcle/encle/cleo can take one of three formats, each with its own structured proposal application form: · paper presentation · these will be in traditional conference paper format, with a twenty minute presentation followed by questions. participants will be invited to indicate if their paper falls into one or more of the four areas: community need; curriculum and students; academic identity; research and impact. · interactive seminar · these sessions will be 90 minutes long, will involve active participation from the audience as well as input from the presenters and will be designed to generate discussion and new learning for the participants and the convenors. participants will be invited to indicate if their seminar falls into one or more of the four areas: community need; curriculum and students; academic identity; research and impact. · pechakucha · a pechakucha consists of 20 slides timed to change every 20 seconds, so each presentation lasts 6 minutes and 40 seconds. each presenter in pechakucha session will be assigned a 10 minute slot to allow for a question to be posed. we anticipate that pechakuchas will consist of short introductions to new work, methodological innovations or insights from the field. please follow this link to learn more. participants are encouraged to offer pechakuchas in addition to traditional papers. key dates • call for papers, seminars and pechakucha opens – november 21, 2016. please follow this link to submit and learn more. • call for papers, seminars and pechakucha closes – january 31, 2017 • confirmation of papers, seminars and pechakucha accepted for the conference – rolling through december and no later than february 10, 2017 • registration opens – january 16 2017 • early-bird registration closes – march 3, 2017 • registration closes – june 2, 2017 • deadline for submission of papers and outlines to website. – june 9, 2017 6 1 editorial dr lyndsey bengtsson lyndsey2.bengtsson@northumbria.ac.uk our autumn issue of the ijcle has contributors from across the world, including the us, uk, nigeria, kenya and india. our contributors explore whether clinics can play a role in eradicating statelessness and in improving the accessibility of protective injunctions. the value of clinics in legal aid delivery is also explored, including whether the aspirations match the reality of practice and what lessons can be learnt. lessons learnt are also explored in the context of teaching during the covid-19 pandemic and whether our experiences can strengthen our face-to-face teaching as we return to the classroom. firstly, maryam idris abdulkadir’s article provides valuable insight into the role of law clinics in the fight against statelessness by the united nations high commissioner for refugees (unhcr). in a national action plan in 2018, the unhcr set out their strategies and their belief that nigerians are not aware of the concept of statelessness. in her article maryam tests their assertion via a questionnaire to target groups. she argues that law clinics in nigeria can assist the unhcr in the fight against statelessness and she recommends that clinicians can be the ‘foot soldiers’ and help to gather data through client interviews and outreach activities. mailto:lyndsey2.bengtsson@northumbria.ac.uk 2 in k rajashree and sonika bhardwaj’s article they share a fascinating exploration of india’s law school legal aid clinics. they map the aspiration of legal aid through an analysis of the key legal education policy documents. they also analyse two institutions by way of a case study to verify whether practices match those aspirations. the article puts forward arguments which are crucial to understanding the gaps between the aspiration and practice. in ana speed’s article she highlights how clinical legal education can be an effective tool in improving the accessibility of protective injunctions. she explores the various models of clinical legal education that may be used to support victims of domestic abuse. using a case study, she highlights the benefits and limitations of each option for the students and victims and provides an important contribution to the literature in this area. the article provides a valuable insight for clinicians who are considering offering support in this area. in our practice report section asha mikinyango and judith nguru explore legal aid in the context of the challenges and lessons learnt from practice in kenya. they provide an important insight into the role of law schools as legal aid providers, drawing a contrast between law schools based in kenya and south africa. the article discusses the challenges faced in the organisation and delivery of legal aid services in one law school and concludes by offering very useful advice on the strategies that can be employed to mitigate the challenges. 3 finally, amy l wallace provides a topical and interesting reflection of experiences teaching street law in a virtual environment during the covid-19 pandemic. the article considers what lessons have been learnt and whether it is possible that some of our experiences of virtual teaching may enhance our teaching when we return to the classroom. in june 2021, the ijcle had the privilege of hosting an online worldwide conference in partnership with the global alliance for justice education and association for canadian clinical legal education. we had 466 attendees from over 40 countries (including malaysia, afghanistan, australia, us, canada, turkey, trinidad and tobago, brazil, germany, italy, ireland to name a few). although we were unable to all meet in person this year; it was great to see so many attendees make connections, share ideas, discuss the challenges we all have faced and explore how these challenges can be turned into opportunities going forward. thank you to all those who attended. finally, we are very excited that the clinical legal education podcast is now live. in the first episode our hosts, elaine gregersen and molly doyle, interview lydia bleasdale, an associate professor from the university of leeds, about the importance of understanding your community’s needs and the value of teamwork. if there is anything that our guests cover that resonates with you, or if you wish to discuss the podcasts further, please do not hesitate to get in touch with elaine or molly via the twitter account @ijcle. https://twitter.com/ijcle reviewed article 195 unregulated immigration law clinics and kant’s cosmopolitan right: challenging the political status quo omar madhloom, university of bristol law school, uk1 abstract unregulated law clinics in england and wales are prohibited from directly offering immigration advice and assistance. this article argues that this restriction should not be a barrier to teaching immigration law. kant’s duty-based ethics and his cosmopolitan right can provide a useful normative framework for challenging the political status quo in relation to the regulation of law clinics and policies affecting migrants. it is argued that introducing normative values into clinical legal education can address the limitations of the conventional ‘hired-gun’ model and engender students to a more holistic approach to lawyering. in other words, a model which promotes the causes of third parties. keywords: clinical legal education; cosmopolitanism; hired-gun; immigration law; kant. 1 omar madhloom is a senior lecturer and solicitor at the university of bristol law school. reviewed article 196 introduction unregulated law clinics in england and wales are prohibited from directly offering immigration advice and assistance. this article argues that this restriction on the services clinics can offer should not be a barrier to teaching immigration law. kant’s duty-based ethics and his cosmopolitan right can provide a normative framework for challenging the political status quo in relation to the regulation of law clinics and policies affecting migrants. it is argued that introducing normative values into clinical legal education (cle) can address the limitations of the conventional ‘hired-gun’ model and engender students to a more holistic approach. in other words, a model which promotes the causes of third parties. normative values are concerned with how things ‘ought to be’ (schwieler & stefan ekecrantz, 2011: 60). in the context of cle, normative values address questions such as ‘what is just and fair?’, ‘do clinic students owe moral duties to non-clients?’, and ‘do students have a moral duty to engage in law reform?’. adopting a values-based approach in cle can contribute to the development of a ‘mature moral identity’ and fostering an attribute necessary for effective citizenship (webb, 2010: 9). the term ‘values’ tends to have a variety of meanings, for present purposes it is regarded as a particular type of belief about what an individual holds valuable, namely human dignity. kant’s moral philosophy, which is committed to respecting the dignity of all persons, will be applied to cle to critique the united kingdom’s (uk) current laws and reviewed article 197 policies towards migrants. these policies first entered the political debate in may 2012, when the then home secretary, theresa may, announced the government’s aim ‘to create, here in britain, a really hostile environment for illegal immigrants’ (kirkup & winnett, 2012). the overarching objective was to make life as difficult as possible for migrants whom the home office deemed to be potentially illegal. this policy was not limited to controlling immigration through border control but also included an internal approach. according to webber (2019: 77), the immigration policies have: [t] he avowed aim of making life impossible for migrants and refugees who do not have permission to live in the uk, and which remove such migrants from the rights to housing, health, livelihood and a decent standard of living, liberty, freedom of assembly and association, family and private life, physical and moral integrity, freedom from inhuman or degrading treatment, and in the final analysis the right to human dignity and to life. there are two main reasons for using the uk’s ‘hostile environment’ policies as a case study for developing students’ analytical skills. firstly, unregulated law clinics, unless they are partnered with non-government organisations (ngos) or immigration lawyers, are prohibited from offering immigration advice and assistance. this prohibition can prove to be a barrier to teaching immigration law and theory. secondly, ethics of immigration (carens, 2015) can add value to cle by providing a framework, in the form of normative ethics, for challenging the political status quo. although there are various forms of cosmopolitanism, this article will draw on kant’s reviewed article 198 theory of cosmopolitanism, the right to hospitality, and his duty-based approach (deontology) to moral decision-making. deontology is one of several ethical theories2 used in cle. while a cle curriculum grounded in comparative legal ethics, that includes kantian philosophy, would better serve the aims of law clinics and cle, the contribution of kant’s ethics will be the focus of this article. in the absence of legal obligations, from a student’s perspective, towards clients and third parties, immanuel kant’s theory of ethics, which is the major theory within the deontological tradition (eberle, 2012: 13), can provide cle students with a useful framework for identifying their moral duties. kant’s philosophy deals with ethical duties owed by the individual moral agent. he grounds his system upon principles of universality; our moral obligations must be applicable to all people at all times and in similar situations. kant’s critique of the right to hospitality of non-citizens and the duties of the state towards visitors will be applied to the uk’s ‘hostile environment’ policies to develop legal ethics beyond the dominant lawyer-client model found in live-client clinics. this article is based on the premise that there is a need for students to be provided with an ethical framework that promotes respect for the dignity of all individuals, irrespective of their nationality, gender, sexual orientation or any other characteristic. this article will proceed in seven sections. section one will argue that the conventional lawyering model, with its value-neutral approach, is inadequate in terms of 2 other ethical theories include consequentialism, ethics of care, intuitionism, and virtue ethics. reviewed article 199 promoting normative values. public interest lawyering, namely cause lawyering, is a more appropriate pedagogic approach for promoting normative values such as duties towards third parties. sections two and three identify moral cosmopolitanism as the normative framework for enhancing cause lawyering. section four will examine kant’s deontological ethics and his theory of cosmopolitanism. this section will outline the value of incorporating kant’s concepts of autonomy, respect and dignity to developing the cause lawyering model. section four will also analyse kant’s cosmopolitan right in order to outline a moral framework for critiquing law and policies affecting migrants. sections five and six will describe the regulatory framework regarding immigration law and the uk’s ‘hostile environment’ policies. the final section will apply kant’s theory to cle. 1. clinical legal education and legal ethics cle is generally understood to mean the provision of pro bono legal services to real life clients, under the supervision of academic members of staff (giddings, 2013). while there is no universally accepted definition of cle, giddens (2013: 14) puts forward the following explanation: clinical legal education involves an intensive small group or solo learning experience in which each student takes responsibility for legal or law-related work for a client (whether real or simulated) in collaboration with a supervisor. structures enable each student to receive feedback on their contributions and to take the opportunity to learn from their experiences through reflecting on matters including their interactions with reviewed article 200 the client, their colleagues and their supervisor as well as the ethical dimensions of the issues raised and the impact of the law and legal processes. cle, as a form of experiential learning, can include a diverse range of teaching methods such as placements, case-studies, and simulations. consequently, the teaching of law and policies affecting migrants can form part of a cle curriculum through non-live client models. the value of cle, as a vehicle for teaching immigration law, is that it not only serves to bridge the gap between theory and practice but can also develop practical skills, ‘with the incorporation of the affective domain needed for sensitive and ethical client care’ (mcallister, 1997: 3). however, the aim of teaching legal ethics is not to create ‘moral whizz-kids’ (hursthouse, 2013: 650), but to provide students with conceptual tools that allow them to address the question: ‘how should we respond to this situation?’ (herring , 2017: 4) and more specifically, ‘do we owe a moral duty to others?’. with regards to incorporating conceptual tools, such as values, into the curriculum, webb argues that ‘[i]f it is to take values seriously, legal education has to become more experiential’ (webb, 2010: 21). this can be achieved through a variety of pedagogies such as cle, problem-based learning, and simulations. the focus of this article is the role cle in relation to incorporating normative values. reviewed article 201 1.1 the ‘hired-gun’ model while a certain amount of guidance for resolving ethical dilemmas can be found in the professional codes of conduct, teaching these rules and duties does little to promote a critical approach to their content (nicolson, 2018: 88). this article addresses the ethics component of cle by incorporating a deontological dimension that goes beyond the traditional lawyering model. this aim is achieved through the use of a case-study centred on the uk’s immigration law and policies. the analysis of this case study requires a normative framework, which the dominant conventional lawyering model lacks. legal advice and assistance in law clinics incorporates both the conventional lawyering model and its alternative: the public interest lawyering model. lawyers in the conventional model are considered to be detached professionals. in other words, neutral partisans who are not associated with the morality, causes, or beliefs of their clients (chen & cummings, 2013: 274). the ‘hired-gun’ approach is often associated with lawyers in private practice, where the lawyer, in exchange for a fee, defends a client’s rights and puts forward the best possible defence. this is carried out without any consideration on the impact on third parties (herring, 2017: 29). the hired-gun metaphor promotes a value-neutral model where lawyers act as amoral mouthpieces for their clients and zealously pursue their clients’ self-interests (pearce & wald, 2016: 601). defenders of this model view the concept of partisanship as being central to the role of the lawyer (pepper, 1986: 617-18). according to fried, a lawyer reviewed article 202 must display ‘hyper zeal’ in pursuing a client’s case, even if this might appear to be unethical (fried, 1976). the hired-gun approach was recently criticised by the solicitors regulation authority (sra)3 (2018: 3): [a]lthough solicitors must advance their clients' cases, they are not ‘hired guns’ whose only duty is to that client. they also owe duties to the courts, third parties and to the public interest’. however, the sra omits to offer any guidance on how these competing interests should be balanced or how a lawyer should determine the meaning of ‘public interest’. an alternative model to the ‘hired-gun’ approach, that has the potential to address the sra’s concerns regarding duties to third parties and to the public interest, is ‘public interest lawyering’. 1.2 public interest lawyering generally, a public interest lawyer is one who is alert to something or someone beyond their commitment to their client (chen & cummings, 2013: 278). public interest lawyers embrace a cause which sets them apart from the value-neutral technician who adheres to the conventional model of lawyering. public interest lawyers who advocate for a cause, such as immigration rights, are driven by a moral commitment (chen & cummings, 2013: 279). cause lawyering, therefore, aims to ‘reconnect law and 3 the regulatory body for solicitors in england and wales. reviewed article 203 morality’ (sarat & scheingold, 1998: 3) by challenging the central activity of the legal profession, namely the provision of legal services in exchange for payment. this is achieved through amending aspects of the social, political, or economic status quo. a normative framework provides students with a conceptual tool to critique law and policies affecting both clients and non-clients. this framework can facilitate the examination of broader issues such as the impact law and social institutions have on individuals and the extent to which laws and policies hinder or promote persons from realising their life goals. such analysis goes beyond the narrow confines of the conventional lawyering model. a moral framework that can contribute to the theory of public interest lawyering, in cle, is kant’s theory of ethics and his cosmopolitan right to hospitality. 2. cosmopolitanism ‘cosmopolitan’, derived from the greek words kosmo and politēs (‘citizen of the world’), is a normative ideal used in various disciplines such as education (papastephanou, 2016), global health justice (ruger, 2018), moral philosophy (van hooft, 2014), and international law (pierik & werner, 2010). cosmopolitanism is distinguished from globalisation which is associated with the global spread of capitalism and a deregulated market society (litonjua, 2008: 254). globalisation has been criticised for promoting neoliberal policies (knyght et al, 2011) that encourage self-interest (jordà et al, 2010). cosmopolitanism, on the other hand, promotes the reviewed article 204 ideal that every individual, regardless of their citizenship status or other affiliation, enjoys equal moral standing (brock, 2009: 3). philosophers from kant to jacques derrida associate cosmopolitanism with hospitality to the stranger. similar to cle, there is no universally accepted definition of cosmopolitanism. however, thomas pogge (1992: 48) outlines three elements shared by cosmopolitan theories: first, individualism: the ultimate units of concern are human beings, or persons— rather than, say, family lines, tribes, ethnic, cultural, or religious communities, nations, or states. the latter may be units of concern only indirectly, in virtue of their individual members or citizens. second, universality: the status of ultimate unit of concern attaches to every living human being equally—not merely to some sub-set, such as men, aristocrats, aryans, whites, or muslims. third, generality: this special status has global force. persons are ultimate units of concern for everyone—not only for their compatriots, fellow religionists, or such like. pogge’s definition is useful to cle because it draws attention to the moral status of a person as an ‘ultimate units of concern’. moral cosmopolitanism, therefore, views all individuals as members of a single moral community and they owe moral duties to all other individuals, irrespective of their nationality, background, or religion. cosmopolitanism allows students to adopt the view that ‘there exists a global community which all people, by virtue of their humanity, are members’ (van hooft, 2014: 6). cosmopolitanism, therefore, gives rise to moral duties towards individuals outside our immediate community, such as non-citizens. moral duties can enhance reviewed article 205 cle in three ways. firstly, it views ‘all humans as worthy of equal moral concern’ and advocates ‘impartiality and tolerance’ (kleingeld, 1999: 507). impartiality towards clients may be absent due to the fact that ‘unconscious racism and biases often play a role in our everyday decisions’ (lyon, 2012: 758). thus, incorporating cosmopolitan values into cle can assist in addressing issues of bias towards clients. this can be achieved through a moral duty-centred approach that promotes self-reflection. secondly, moral cosmopolitanism provides students with a normative framework for critiquing the content of the professional codes of conduct. thirdly, it creates a duty towards all persons irrespective of whether they are clients or not. this duty towards clients and third parties can be applied to cle to engage students in law-reform by providing a ‘voice’ for those who may not have access to legal representation or who may not be able to access a clinic’s services.4 thus, moral cosmopolitanism is closely aligned with the public interest lawyering model. it is necessary to briefly outline kant’s deontological and cosmopolitan theories in order to illustrate their application in cle. 4 for a discussion on how cle students can use casework to inform work on law reform, see curran (2007). reviewed article 206 3. kant’s ethical theory kant’s duty-based approach to moral reasoning is known as deontology, which is derived from the greek words for deon (duty) and science (or study) of (logos) (alexander & moore, 2016). deontology can be contrasted with consequentialism, an umbrella term, that describes ethical theories that frame morality of actions on the types of consequences produced. examples of consequentialist theories are utilitarianism, egoism, and nationalism (cohen, 2004: 6). deontology, on the other hand, places duty, both to one’s self and to others, at the heart of morality. for deontologists, an action is deemed to be morally right or wrong not because of the consequences it produces but because it conforms to a specific moral law or principles. in other words, actions are judged not on the cause or effect they produce but on what our duty demands. to apply kant’s theory of ethics to cle it is necessary to identify the source of this moral duty and what it entails. by rejecting the consequences of an action as the basis of morality, kant viewed reason as the foundation of morality. a moral individual is one who is able to deliberate on, and act upon, valid reason. to determine the right moral reason, kant formulated the categorical imperative (ci) as his supreme principle of morality. at the heart of the ci is the concept of a good will, ‘a good will is not good because of what it effects or accomplishes – because of its fitness for attaining some proposed end: it is good through its willingness alone – that is in itself’ (kant, 1948: [4: 394]). a good will relates to an individual’s capacity to recognise and to act from a duty to follow the moral law. reviewed article 207 a good will is always good regardless of the consequences it produces, whether intended or not, or even if it fails to produce the intended results (kant, 1948: 17). in the context of cle, a good will compliments the professional codes of conduct, which are predominantly consequentialist in nature (madhloom, 2019), by reminding students to reflect on moral duties such as respecting their own autonomy and that of their clients, being mindful of paternalism towards their clients, and holding the state accountable for morally impermissible actions (madhloom, 2019). for an action to be morally good it should not only conform to the moral law but must also be done from a duty towards the moral law (kant, 1948: [4: 390]). to illustrate this point, kant gives the example of a grocer who refrains from acting dishonestly towards his customers by overcharging them (kant, 1948: [4: 397]). kant argues that there is a difference between a grocer whose actions are in conformity of what is expected of him as a seller, but not necessarily done from a duty to the moral law, and one who conducts his business from the intention to act honestly. it is only in the latter case, acting from duty and the principle of honesty, that the grocer’s action can be said to have moral worth. kant expounds on this point by providing another example, which is of direct relevance to law clinics: that of a person who is not inclined to ‘help those in distress’ (kant, 1948: [398]). their action has moral worth where they, out of duty to the moral law, perform acts which benefits those in distress (kant, 1948: [4:397]). kant (1948: [4: 398]) contrasts this example with that of a person who is naturally disposed to assist those in distress: reviewed article 208 i maintain that in such a case an action of this kind, however right and however amiable it may be, has still no genuinely moral worth. it stands on the same footing as other inclinations – for example, the inclination for honour, which if fortunate enough to hit on something beneficial and right and consequently honourable, deserves praise and encouragement, but not esteem; for its maxim lacks moral content, namely the performance of such actions, not from inclination, but from duty.5 a person’s moral worth, whether a client or not, is not dependent on inclinations or feelings. what drives a person’s actions is recognition of duty, rather than the consequences of an action. it is this reasoning which led kant to reject utilitarianism. the moral worth of an action is not judged by the consequences it produces or intended effect but by the fact that it was motivated by duty. the concept of duty helps shift the focus from the amoral ‘hired-gun’ approach to a more public interest lawyering model which promotes the examination of our duties towards ourselves, our clients, and society. kant’s ci raises the question ‘why are only acts that are motivated by duty possess moral worth?’. this ‘motivational rigorism’ (timmermann, 2009: 58) is a result of kant’s interest in developing an account of ethics that is concerned with a person’s character. clinic students who, out of duty for the moral law, show care for third parties, whom they do not owe any legal duties towards, can be said to be have moral worth. incorporating the concept of a moral duty towards clients and third parties can 5 emphasis in the original. this applies to all subsequent quotes. reviewed article 209 promote a critique of law and policies affecting those individuals and groups such as migrants and non-citizens. to determine our duties to the moral law, it is necessary to examine kant’s supreme principle of morality. 4. kant’s supreme principle of morality: the categorical imperative kant formulated the ci to distinguish between right and wrong actions. the ci is an unconditional command that is binding irrespective of the outcome or whether it serves a benefit, either directly or indirectly, to us personally. although kant insists that there only one ci, he provides various formulations of it each with a different emphasis: 1. the formula of universal law: ‘act only on that maxim through which you can at the same time will that it should become universal law’ (kant, 1948: [4: 421]); 2. the formula of humanity: ‘act in such a way that you always treat humanity, whether in your own person or in the person of another, never simply as a means, but always at the same time as an end’ (kant, 1948: [4: 429]); 3. the formula of autonomy: ‘the idea6 of the will of every rational being as a will which makes universal law’ (kant, 1948: [4: 431); and 6 ‘idea’ with a capital ‘i’ refers to kant’s technical term. an idea is a rational concept which arises out of our knowledge of the empirical world, yet seem to point to a transcendent realm. once such idea is ‘the greatest possible human freedom according to laws, by which freedom of every individual is consistent with the freedom of every other’ (kant, 2015: [a316/b372]). reviewed article 210 4. the formula of kingdom of ends: ‘act on the maxims of a member who makes universal laws for a merely possible kingdom of ends’ (kant, 1948: [4: 439]). the various formulations of the ci will be briefly discussed to illustrate their application in critiquing laws and policies affecting migrants. 4.1 the formula of universal law the ci, according to kant, is the principle for achieving consistency and universalisation of our maxims. a maxim is a ‘subjective principle of action…on which the subject acts’ (kant, 1948: n 51). the ci can provide students with a conceptual tool to determine whether their maxim, which underpins their actions, can be applied universally, that is, to everyone including themselves. maxims are useful in that they identify contradictions (kant, 1948: [4: 424]): some actions are so constituted that there cannot even be conceived as a universal law of nature without contradiction let alone willed as what ought to become one. in the case of others we do not find this inner impossibility, but it is impossible to will that their maxim should be raised to the universality of law of nature, because such a will would contradict itself. there are two types of maxims: those that are contradictory when they are applied, and those that cannot be willed to be universally applied. kant provides the example of willing a world in which we do not help ‘others who have to struggle with great reviewed article 211 hardship’ (1948: [4: 423]). there is clearly no contradiction in conceiving of such a maxim when applied universally. the maxim is not self-defeating in the same manner that it is possible to envisage such a society. however, willing a principle in which we do not help those suffering hardships, such as clients who are unable to access legal assistance, would result in a conflict with itself; there may come a time when we may need help from others, but none would be forthcoming as we could have willed that we do not receive any assistance. thus, the formula of universal law allows students to reflect on actions beyond the conventional value-neutral lawyer-client model. it promotes reflection on laws and policies that disadvantage certain groups such as migrants. 4.2 the formula of humanity in relation to the second formula, ‘humanity’ includes the capacity to set ends for oneself (korsgaard, 1996: 110). this capacity is a feature of a person’s freedom, understood as the ability to self-govern. in other words, the freedom to engage in self directed rational behaviour and to set ends for ourselves (johnson & cureton, 2019). to exercise freedom to set ends for oneself (positive freedom) clients must be free from interference such as coercion and deception (negative freedom). christine korsgaard writes (1996: 140-141): according to the formula of humanity, coercion and deception are the most fundamental forms of wrongdoing to others – the roots of all evil. coercion and reviewed article 212 deception violate the conditions of possible assent, and all actions which depend for their nature and efficacy on their coercive or deceptive character are ones that others cannot assent to…physical coercion treats someone’s person as a tool, lying treats someone’s reason as a tool. that is why kant finds it so horrifying; it is a direct violation of autonomy. for kant (1948: [4: 447]), a free or autonomous individual is one whose motives and actions are in accordance with the moral law. however, it is permissible to use coercion in certain circumstances if the aim is to promote positive freedom (kant, 1996: [6:231]): [i]f a certain use of freedom is itself a hinderance to freedom in accordance with universal laws…coercion that is opposed to this (as a hindering of a hinderance to freedom) is consistent with freedom in accordance with universal laws…it is right. the state can limit our freedom provided the purpose is to promote freedom generally, such as criminalising theft and murder. kant articulates the linkage between rights, freedoms, and equality by stating that the ‘civil state’ (kant, 2006: [8:290]) ought to be based on the following principles (kant, 2006: [8:290]): 1. the freedom of every member of society as a human being. 2. the equality of each member with every other as a subject. 3. the independence of every member of the commonwealth as a citizen. reviewed article 213 with regards to freedom, ‘the member of the commonwealth, is entitled to this right…as a human being to the extent that the latter is a being capable of rights in general’ (kant, 2006: [8:290]). a ‘state’ is defined as ‘a union of a multitude of human beings under laws of right’ (kant, 1996: [6: 230]). kant uses ‘state’ and ‘peoples’ (kant, 1996: [6: 312]) synonymously suggests that states and their peoples have the same duties towards migrants that they owe towards their own. thus, it can be argued that unregulated law clinics owe a duty to third parties. he defines ‘right’ as ‘the sum of the conditions under which the choice of one can be united with the choice of another in accordance with a universal law of freedom’ (1996: [6: 313]). this ‘universal law of freedom’ or ‘the universal principle of right’ maintains (kant, 1996: [6: 230]): any action is right if it can coexist with everyone’s freedom in accordance with a universal law. or if on its maxim the freedom of choice of each can coexist with everyone’s freedom in accordance with a universal law’. individuals are, therefore, free to act in whatever manner they see fit, provided their actions do not interfere with the freedom of others. a client’s ability to set ‘ends’ for themselves gives rise to the notion of respect in relation to the ‘rational choices, the plans, and intentions we and others may form’ (nelson, 2008: 104). stephen darwall distinguishes between two types of respect: ‘appraisal respect’ and ‘recognition respect’ (darwall, 1977). appraisal respect involves a positive appraisal of a person either as a person or in relation to their engagement of a particular enterprise. this type of respect is determined following an evaluation of other individuals to reviewed article 214 determine whether the person, when judged by objective standards, has special merit and deserves our respect (darwall, 1977: 39). the latter refers to the attitude of regard for others which is due to their being persons, and as such, worthy of being respected by virtue of the fact that they are persons deliberating on their actions. recognition of respect is ‘not how something is to be evaluated or appraised, but how our relations to it are to be regulated or governed’ (darwall, 2006: 123). unlike appraisal respect, recognition respect requires that we demonstrate respect for others not because of our appraisal of them but because we are morally obliged to do so (allan & davidson, 2013: 347). in other words, recognition respect does not require fulfilling a standard of evaluation appropriate to the individuals. darwall’s recognition respect captures kant’s notion of respect which must be afforded to every individual (kant, 1996: [6:464]): i cannot deny all respect to even a vicious man as a human being; i cannot withdraw at least the respect that belongs to him in his quality as a human being, though though by his deeds he makes himself unworthy of it. we ought to have recognition respect even for people whom we do not have appraisal respect for. this creates a moral justification for defending the guilty7 on the ground that respect is not a matter of degree based on the recipient, for example a client, of our respect having met some standard of assessment (johnson & cureton, 2019). this raises the question as to why we are obliged to morally respect every person no matter 7 in relation to the ethics of criminal defence, see (mitchell, 1980); (markovits, 2003); (seleme, 2013). reviewed article 215 their character or actions. according to kant, respect towards others is necessary due to their dignity (kant, 1948: [4: 435]). sandel (1996: 82) equates dignity with a person’s capacity as an autonomous agent to choose their ends for themselves. following sandel’s interpretation, autonomy presupposes an individual’s ability to make choices free from external constraints. in the context of cle, external constraints on personal autonomy include undue influence from a student advisor as well as laws that prevent people from realising their life goals. the concept of a person’s dignity is further explored in kant’s formula of autonomy. 4.3 the formula of autonomy autonomy, kant (1948: 4: 436) writes, ‘is the ground of the dignity of human nature and of every rational nature’. as a human moral creature, what kant calls ‘homo noumenon’ (1996: 6: 434), a person exists in the moral realm of dignity. it is this dignity, inherent in every person, that demands respect because ‘every man has a legitimate claim to respect from his fellow men and is in turn bound to respect every other’ (1996: 6: 462). kant (1948: [4: 435]) differentiates things which can have a ‘price’ and can be exchanged for something else, and things with a ‘dignity’ which are ‘exalted above all price’ and have no equivalent. individuals possess unconditional value compared to other things, such as material goods, which can be valued by persons. clients and third parties are, therefore, not to be valued simply as a means to the ends of others but as ends in themselves by virtue of their dignity. an example of reviewed article 216 using a client as means is where a student volunteers in a clinic purely out of self interest as opposed to altruistic reasons. for kant (2015: [5:88]), a person’s value as a rational being is linked to their autonomy: a human being alone, with him every rational creature, is an end in itself: by virtue of the autonomy of his freedom he is the subject of the moral law…such a being…is to be used never merely as a means but as at the same time an end. dignity, as a universal concept, is possessed by every individual due to their autonomy and is grounded in the requirement to treat others, including their own person, ‘as ends in themselves’ (bognetti, 2005: 89-90). however, historically, individuals outside one’s national borders were not considered to have moral standing (chadwick & o’connor, 2015: 26). individuals with moral standing are those who are considered to be moral agents. for kant (1948: [4: 435]), a moral agent is one who possesses dignity. moral agency is essential to being a rational agent (bowie, 1999: 45). in relation to the concept of rationality, kant writes (1948: [4: 429]): rational nature exists as an end in itself. this is the way in which a man necessarily conceives his own existence: it is therefore so far a subjective principle of human actions. but it is also the way in which every other rational being conceives his existence on the same rational ground which is valid also for me; hence it is at the same time an objective principle, from which as a supreme practical ground, it must be possible to derive all laws for the will. reviewed article 217 this highlights kant’s assertion for the necessity of respecting all rational individuals because rationality is a product of an individual’s freedom and enables them to act as moral agents (kant, 1948: [4: 447]). freedom permits individuals to act on laws they formulate themselves rather than being subjected to causal laws. therefore, moral agency is what gives individuals dignity (bowie, 1999: 45). the concepts of freedom and dignity can be useful analytical tools for critiquing the principle that lawyers must act with independence (sra, principle 3) and acting in their clients’ best interests (sra, principle 7). taking into consideration a person’s freedom and dignity allows students to be mindful of a client’s dignity by virtue of them being autonomous persons. this dignity-centric approach to client care may prevent students from being paternalistic when advising their clients. a further advantage of this approach is that it allows students to reflect on the impact of law and policies, which restrict freedom, on persons who are outside their immediate community. this is achieved by incorporating into cle the concept of a moral community that transcends geographical boundaries, namely kant’s ‘kingdom of ends’. 4.4 formula of kingdom of ends kant’s third formula requires that actions be considered as if their maxims provide a law for a hypothetical ‘kingdom’ (1948: [4: 433]). a ‘kingdom’ is ‘a systematic union of different rational beings under common laws’ (1948: [4: 433]). a kingdom of ends is an ideal community of rational beings living in harmony with one another. unlike reviewed article 218 ‘humanity’, which every person possesses, a kingdom of ends is an ideal which every person should strive to achieve (hildebrand, 2017: 23). this formula conceptualises kant’s ideal community where the authority that legislates moral laws and norms are binding on everyone. these norms are derived from rational standards accessible to all the community’s members and accord with their dignity (hildebrand, 2017: 23). the formula of the kingdom of ends acts as a domain for the normative framework necessary for a cosmopolitan community. in his essay ‘toward perpetual peace’ (tpp), kant argues that, ‘[t]he growing prevalence of a (narrower or wider) community among the peoples of the earth has now reached a point at which the violation of right at any one place on the earth is felt in all places’ (kant, 2006: [8: 360]). it would seem that kant anticipated the current climate change (european commission, 2020a) and refugee crises (european commission, 2020b) whereby catastrophes in one part of the world may have consequences on other nations (mader & schoen, 2019). this can create a realisation in students that they ‘are not citizens just of specific nation-states but are also citizens of the world’ (van hooft, 2009: 4). 4.4.1 kant’s cosmopolitan right in tpp, kant (2006: [8: 358]) equates the idea of a ‘cosmopolitan right’ to ‘hospitality’ which he defines as ‘the right of a stranger not to be treated in a hostile manner by another upon his arrival on the other’s territory’. kant (2006: [8: 357]) limits his cosmopolitan right to ‘universal hospitality’. the use of the word ‘universal’ implies reviewed article 219 that this cosmopolitan right is a type of ci valid for everyone (saji, 2009: 126). thus, any person can exercise the right to arrive on any land. however, kant’s cosmopolitanism, which is a right as opposed to philanthropy (kant, 2006: [8: 358]), is not an absolute right. a stranger can be turned away provided this can be achieved without their death (untergang) and the stranger must not be treated with hostility, ‘so long as he behaves in a peaceable manner in the place he happens to be’ (kant, 2006: [8: 358]). under this right, non-citizens can claim the ‘right of resort’, which everyone possesses ‘by virtue of the right of common possession of the surface of earth’ (kant, 2006: [8: 358]). the right of resort is merely an entitlement to present oneself in the lands of others. kant’s cosmopolitan right is not ‘a right to make a settlement on the land of another nation (ius incolatus)’ (1996: [6: 353]). a non-citizen’s right to ‘make a settlement’ can only be secured through a special contract (kant, 1996: [6: 353]). kant elaborates on this conditional requirement by stating that it requires ‘a special, charitable contract stipulating that he be made a member of the household for a certain period of time’ (kant, 2006: [8: 358]). kant’s hospitality model, which is limited to a right to visit (besuchsrecht) rather than a right to residence (gastrecht), has been described as being ‘inappropriate’ (cavallar, 2002: 323) and ‘empty’ (benhabib, 2004: 36). derrida criticises kant for providing a restricted right to hospitality that gives rise to a precedent for the special conditions imposed on refugees and asylum seekers (derrida, 2001). this criticism appears, at first glance, justified when we consider that in relation to a stranger’s right to visit, the reviewed article 220 state has the authority to refuse entry with respect to non-citizens, and thereby overriding a stranger’s right to hospitality. however, derrida’s (2001) reading of kant, namely the exclusion of asylum seekers in europe, is unjustified because kant’s laws of hospitality explicitly hold that visitors should not be turned away if it results in their ‘death’ (kant, 2006: [8: 358]). kant’s narrow conception of the right to hospitality can be disregarded in relation to cle because this right which ‘pertains…only to conditions of the possibility of attempting to interaction with the old inhabitants’ (kant 2006: [8 358]), was primarily aimed at restricting european colonisation (kant, 2006: [8: 358]; see also brown, 2-14: 684): if one compares with this the inhospitable behaviour [sic] of the civilized states in our part of the world, especially the commercial ones, the injustice that the latter show when visiting foreign lands and peoples (which to them is one and the same as conquering those lands and peoples) takes on terrifying proportions. kant (2006: [8: 358]) restricts the right of hospitality to visiting other countries. for european states this meant colonisation and ‘oppression of the native inhabitants’. kant’s cosmopolitanism was, therefore, mainly concerned with restraining colonial rule and aggression (kleingeld, 1998: 76). he (kant, 1996: [6: 353]) attempts to introduce a further limit on european colonialism by excluding from the right to visit ‘a right to make a settlement on the land of another nation (ius incolatus)’. although kant did not explicitly mention the rights of refugees and economic migrants, the plight of reviewed article 221 refugees in eighteenth-century europe8 is unlikely to have escaped his attention. in an early draft for tpp kant (cited in kleingeld, 1998: 78) argues that ‘a ship seeking a port of refuge in a storm, or a stranded group of sailors cannot be chased away from the beach…where he saved himself and sent back into imminent danger…instead, he must be able to stay there until there is a favourable opportunity to leave’. here, kant not only anticipates the rights of refugees but also the principle of non-refoulment established in the twentieth century (kleingeld, 1998: 77; on the rights of refugees, see goodwin-gill & mcadam, 2007). under customary international law and the convention relating to the status of refugees (1951 and 1967) (the refugee conventions), states are prohibited from removing individuals from their jurisdiction when there are substantial grounds for believing that an individual would be at risk of harm upon return, including persecution, torture or other serious human rights violations based on their ‘race, religion, nationality, membership of a particular social group or political opinion’ (article 33 of the convention relating to the status of refugees 1951). using the refugee convention as a frame of reference, kant’s theory of cosmopolitanism ‘has some room for limits on the range of legitimate reasons for rejection’ (kleingeld, 1998: 77). thus, a state’s laws, which prevent individuals from exercising their right to hospitality, are discriminatory and contrary to the ci. as stated previously, a stranger should only be turned away if it can be carried out without causing their death (kant, 2006: [8:358]). can the state refuse entry to an 8 for an account of refugees in eighteenth-century prussia see hans fenske, ‘international migration: germany in the eighteenth century’ (1980) 13(4) central european history 332. reviewed article 222 asylum seeker if this would not result in death on return to their country of origin? kant’s right to hospitality appears to allow such an action on the part of the state. however, pauline kleingeld (1998: 76) argues that kant’s term ‘untergang’, which she interprets as ‘destruction’,9 can include ‘mental destruction or incapacitating physical harm’. it is, therefore, possible to widen kant’s cosmopolitanism to include migrants who would suffer or are at risk of suffering ‘destruction’, as interpreted by kleingeld, if they were to be deported. this interpretation of kant’s cosmopolitanism does not imply that states lose their powers to exclude non-citizens. on the contrary, kant (2006, [8: 359]) himself supported china and japan in their attempts to limit interaction with european traders. kant’s cosmopolitanism supports state sovereignty in four ways. firstly, it permits states to limit interaction with non-citizens. secondly, migrants can be turned away provided this can be achieved without causing their destruction (broadly defined). thirdly, non-citizens do not have an a priori right to settle, they only have a right to visit. fourthly, the right to hospitality can be revoked if a migrant fails to behave in a peaceable manner. kant does not explain what constitutes ‘behaves peacefully’, but presumably what he had in mind was a visitor adhering to the norms and laws of the host state. conversely, he limits state sovereignty by requiring a state to fulfil four conditions (saji, 2009: 127). firstly, every non-citizen is to be treated equally and without hostility provided they behave peacefully. secondly, as long as a non-citizen behaves peaceably, they should not be 9 in some translations this term is interpreted as ‘death’. reviewed article 223 forced to conform to the people of the state simply because they have entered the state’s territory (saji, 2009: 128). thirdly, but unlike the first two conditions which are unconditional, a stranger can enter into a specific contract to ‘make settlement in the land of another nation’ (kant, 1996: [6: 353]). finally, admission is obligatory if refusal of entry will lead to the individual’s destruction. kant’s cosmopolitanism is a useful analytical tool for teaching immigration law in cle because it affirms an individual’s humanity through respect for their autonomy and the requirement to afford them hospitality, albeit on the condition that an individual behaves peacefully. it provides a framework for recognising that individuals have a moral right to travel within a global community and not to be treated with hostility. kant’s kingdom of ends and his theory of cosmopolitanism can develop public interest lawyering by introducing a deontological approach to cause lawyering. kant’s ci can, therefore, provide the foundation of our moral duties towards society and acts as a framework for critiquing the law. to demonstrate the application of kant’s ethics to cle, it is necessary to provide a brief overview of the current regulatory framework regarding the provision of immigration advice and assistance. 5. law clinics and regulation of immigration advice and assistance in england and wales, the office of the immigration services commissioner (oisc) regulates the provision of immigration advice and services in the uk. ‘immigration advice’ and ‘immigration services’ are defined in s. 82(1) of the immigration and reviewed article 224 asylum act 1999 (iaa 1999). section 84(2) of the iaa 1999 allows persons to provide immigration advice and services provided they are authorised to practise by a designated qualifying regulator. the sra, which derives its regulatory authority from the law society, is a designated qualifying regulator. anyone in england and wales is permitted to offer legal advice, provided they do not ‘hold’ themselves out to be a qualified person. however, only a qualified person may provide immigration advice or services. a person who offers immigration advice or immigration services in contravention of s. 84 of the iaa 1999 is guilty of a criminal offence. the iaa 1999, therefore, prohibits unregulated university law clinics from offering immigration advice and services. the oisc’s position statement (2018) justifies this framework of regulation on the grounds that ‘those seeking immigration advice and/or services in the uk should receive them from persons who are fit and competent’. however, this argument can apply to law clinic clients generally in that unregulated clinics are permitted to offer legal support to vulnerable clients without the need for regulation. section 84 of the iaa 1999 could, therefore, be amended to allow unregulated clinics to provide immigration advice and assistance. to apply a cosmopolitan approach to clients and third parties, in cle, it is necessary to examine the relevant law affecting certain migrants. reviewed article 225 6. the united kingdom’s ‘hostile environment’ the uk’s policies on immigration control were translated into legislation by the immigration acts of 2014 (ia 2014)10 and 2016 (ia 2016).11 the government sought, through the ia 2014, to make it ‘harder for illegal immigrants to rent accommodation’ (united kingdom. parliament, 2014). sections 22 – 28, inclusive, of the ia 2014 create an obligation on landlords of private rental accommodation to conduct checks for the purpose of establishing that tenants have the ‘right to rent’12 in the uk. landlords who rent to illegal migrants without conducting these checks will be liable for a civil penalty. in r (on the application of joint council for the welfare of immigrants) v secretary of state for the home department [2020] ewca civ 542, the court of appeal held the scheme to be compatible with european convention on human rights (echr) article1413 in conjunction with article 8.14 the court upheld the legality of the right to rent scheme that requires landlords to check the immigration status of tenants. despite finding that the scheme did, to an extent, increase the risk of discrimination, hickinbottom lj (r (on the application of joint council for the welfare of immigrants) v 10 received royal assent on 14 may 2014. 11 received royal assent on 12 may 2016. 12 right to rent means simply that the occupier has a right to rent a property in the uk. 13 the enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 14 1. everyone has the right to respect for his private and family life, his home and his correspondence. 2. there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. reviewed article 226 secretary of state for the home department [2020] ewca civ 542, para. 75), delivering the leading judgment, stated: i am satisfied that, as a result of the scheme, some landlords do discriminate against potential tenants who do not have british passports, and particularly those who have neither such passports nor ethnically-british attributes such as name. by “as a result of the scheme”, i mean that, but for the scheme, the level of discrimination would be less. almost all of the evidence – notably the evidence from mystery shopping exercises and surveys – points clearly in that direction. the court concluded that those who do have a right to rent, but not a british passport, were subject to discrimination based on their nationality. however, the court highlighted that this discrimination is not a rational or logical outcome of the scheme. according to the court (r (on the application of joint council for the welfare of immigrants) v secretary of state for the home department [2020] ewca civ 542, para. 151), the scheme is a ‘proportionate means of achieving its legitimate objective’ and, therefore, justified. section 38 of the ia 2014 also requires temporary migrants to make contributions to the national health service (nhs).15 uthayakumar-cumarasamy (2020: 133) criticises this ‘weaponization’ of the uk health service: ‘[h]ostile environment’ policies are designed to be most detrimental to some of society’s most marginalized and vulnerable, such as undocumented migrants and 15umbrella term for the publicly-funded healthcare systems of the uk. reviewed article 227 unidentified victims of trafficking, creating an underclass whilst more privileged groups continue to benefit from access to healthcare. the ia 2016 extends the scope of the ‘hostile environment’ policy by introducing new sanctions on illegal workers, preventing certain migrants from accessing housing, and new measures to deport illegal immigrants. in april 2013, the legal aid, sentencing and punishment of offenders act 2012 (laspo) came into effect. laspo, which was introduced, inter alia, in response to increasing pressure on the legal aid budget, resulted in funding cuts to legal aid and narrowed the scope and financial eligibility criteria. three areas of law that have suffered extensive scope cuts as a result of laspo are housing, welfare benefits and immigration. consequently, many individuals who would previously have been eligible for legal aid have been unable to gain legal assistance to pursue their cases in court or at a tribunal (law works, 2018). immigration lawyers have also been the target of the government’s immigration policies. the civil legal aid (remuneration) (amendment) (coronavirus) regulations 2020 (coronavirus regulations 2020),16 which amend the fee regime for legal aid providers, have been criticised for not adequately reflecting the work required by immigration lawyers. according to the immigration law practitioners’ association (ilpa) the new fee regime ‘will inevitably deter people from taking on 16 came into force on 8 june 2020. reviewed article 228 the more complex cases, which require the most work’ (ilpa, 2020). the next section will apply kant’s philosophy to cle. 7. applying kantian ethics to cle kant’s theory of ethics is a useful analytical tool for enhancing student reflection and analysis of the law for three reasons. firstly, it is committed, through the ci, to the equal moral worth of rational individuals, regardless of their nationality, religion, or any other characteristic. in other words, individuals are considered ‘equal’ irrespective of their citizenship and background (barry, 1998: 145). this ethical framework demands that we show concern not just for our fellow citizens but for all human beings, especially those who are affected by poverty, war, climate change or injustice. secondly, we have a moral duty to promote a person’s autonomy, including our own. thirdly, students are encouraged to reflect on whether maxims leading to coercive laws and policies that restrict the freedom and autonomy of certain migrants, can be willed to be a universal law. the university of bristol’s cle < http://www.bristol.ac.uk/law/law-clinic/ > programme introduces kant’s theory of ethics to students through lectures that outline the various formulations of the ci. this ensures students gain an awareness of a deontological approach to legal ethics. the emphasis in the lectures is on the dignity and autonomy of all persons, as opposed to focusing solely on clients. prior to the workshops, students are provided with pre-reading material on cosmopolitanism, http://www.bristol.ac.uk/law/law-clinic/ reviewed article 229 kant’s ethics, the regulation of legal services, and the relevant laws and policies affecting migrants. seminar questions are designed to promote analysis and critique of the law and policies through a cosmopolitan lens. the starting point of critique of the uk’s policies is whether migrants have a moral right to hospitality. as stated above, non-citizens have a moral right to visit and must not be turned away if this would result in their destruction. students are then asked to examine the impact the ia 2014 and 2016 have on non-citizens’ autonomy. policies that prevent a person from accessing employment, housing, legal advice, and medical care not only prevent her from realising her life goals but also cannot be morally justified according to kant’s theory of cosmopolitanism which creates a right to hospitality. a deontological approach to legal practice can also draw attention to the fact that certain migrants are prevented from accessing legal advice because of the restrictions placed on unregulated law clinics and the fee structure introduced by the coronavirus regulations 2020. reflecting on the impact of the law on third parties has the potential to enhance students’ reflective practice and critical analysis. with regards to developing public interest lawyering in cle, kantian’s theory of ethics can direct the student’s attention to the fact that they, as moral agents, have a role to play in law and policy reform in relation to unjust practices. kant (2006: [8: 304]) argues that citizens have the right to inform their governments of any injustices and petition for redress and reform. this right ensures that we owe a moral duty not just to clients but also to those who do not fall within the scope of a clinic’s work such as asylum reviewed article 230 seekers. this creates a moral right, as far as clinic are concerned, to engage in policy reform. a clinic can inform the state of any injustices and petition for reform through partnering with ngos and immigration law firms. the university of bristol’s law clinic fulfils this moral duty by partnering with bail for immigration detainees (bid) < https://www.biduk.org/pages/2-about-us >, an independent charity that exists to challenge immigration detention in the uk. this partnership allows students to apply cosmopolitan theory to assist bid with policy reform and research reports. this facilitates an understanding and appreciation of the some of the issues facing migrants. analysing the issues facing migrants provides students with the opportunity to develop their nascent emotional intelligence (douglas, 2015) through exposure and analysis of the laws and policies affecting migrants. thus, even though immigration law is regulated, clinic students can still take an active role in promoting the causes of third parties. 8. conclusion this article has demonstrated that unregulated law clinics can engage, albeit indirectly, with immigration clients through a cosmopolitan approach grounded in a duty towards all individuals. kant’s cosmopolitanism theory adds value to cle by firstly recognising the dignity of both clients and third parties. secondly, there has been a gradual shift in recent years towards a more social justice-oriented approach in cle (nicolson, 2016; mckeown & ashford, 2018). kant’s ci can contribute to this https://www.biduk.org/pages/2-about-us reviewed article 231 approach by introducing a normative framework for students to pursue social and political justice which focuses on the autonomy and freedom of all rational persons. thirdly, kant’s cosmopolitan right, which refers to ‘conditions of universal hospitality’ (kant, 2006: [8: 357]), recognises that individuals ought to be free to move to different parts of the world and, thus, providing a norm for assessing situations which result in oppression, such as barriers to trade and interaction (nascimento, 2016: 108). fourthly, cosmopolitanism promotes the ideal that individuals ought to be free from national, cultural, and political biases (waldron, 1999; caney, 2005; nussbaum, 2010). law students and individuals generally are susceptible to confirmation bias, ego-centric and self-serving biases (adler, 2005; eigen & listokin, 2012; stark & milyavsky). this issue of bias in cle is of particular relevance given that the sra states that a solicitor is under an obligation to ‘act with independence’ (sra, principle 3). a student’s heuristic bias may affect their ability to maintain impartiality and independence towards their client. cle programmes have been criticised for minimising the importance decision-making skills, namely ‘study of the cognitive strategies needed to properly identify and prioritize goals, to process information free of psychological biases that undermine objectivity, and to creatively generate potential solutions to a problem’ (rand, 2003: 733). kant’s cosmopolitanism allows students to address discrimination, whether their own or resulting from a social institution such as the home office, towards clients and third parties who happen to be members of a different nationality, ethnicity, or any other form of identity designed to label individuals as members of discreet groups. fifthly, cosmopolitanism fosters a reviewed article 232 moral obligation ‘to the worldwide community of human beings’ (nussbaum, 2010: 155). this allows students to reflect on duties beyond those prescribed by the professional codes of conduct: duties towards their clients, the court, and, in limited circumstances, towards third parties. a cosmopolitan moral obligation, on the other hand, provides students with an opportunity to reflect on issues beyond their immediate community, such as climate change, refugee crisis, and the covid-19 pandemic. limiting the scope of universalizability to ones’ own community or country risks ‘educating a nation of moral hypocrites, who talk the language of universalizability but whose universe has a self-servingly narrow scope’ (nussbaum, 2010; 160). moreover, the formula of universal law creates a moral duty, incumbent on individuals not to act selfishly by disregarding the plight of others. this formula, therefore, promotes public interest lawyering. finally, cosmopolitanism can add value to the legal profession beyond cle. it can develop legal practice by engaging lawyers in three levels of analysis. the first level focuses on an individual’s (client, lawyer, or third parties) autonomy and dignity. second, the organisational level promotes reflection on corporate social responsibility, and the moral permissibility of in-house policies that benefit only a small number of stakeholders in an organisation. the third level concerns duties towards the moral community, be it a law firm, immediate community, or other jurisdiction. reviewed article 233 references adler, r. s. 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(2019). on the creation of the uk’s ‘hostile environment’. race & class, 60(4), 76-87. editorial how do we know what we know about clinical legal education? elaine hall northumbria university, uk elaine.hall@northumbria.ac.uk my habit of relying on a poet’s eloquence to support my editorial comment continues. this edition looks to r.d. laing to evoke and crystallise the sense we have that understanding is ‘out there’ if only we knew how to grasp it. there is something i don't know that i am supposed to know. i don't know what it is i don't know, and yet i am supposed to know, and i feel i look stupid if i seem both not to know it and not know what it is i don't know. therefore, i pretend i know it. this is nerve-racking since i don't know what i must pretend to know. therefore, i pretend i know everything. i feel you know what i am supposed to know but you can't tell me what it is because you don't know that i don't know what it is. you may know what i don't know, but not that i don't know it, and i can't tell you. so you will have to tell me everything. of course the idea that we can know ‘everything’ is part of the painful delusion – so here at the ijcle we’ll settle for an exploration of what we do know and how we know it. tribe mkwebu’s paper breaks new ground in clinical legal education as the first systematic review of the clinical literature. he reports on the techniques of mapping the field in this way and gives a quantitative description of what we have to work with. rachel dunn and paul mckeown make us of another key source of knowledge – clinical colleagues. their from the field report gives insight into the experiences of clinicians from the european network and how the competing elements in academic and legal practice work are playing out in particular countries and jurisdictions as well as across europe. we then move from the pursuit of knowledge to new approaches to its’ use. ann thanaraj and michael sales share a practice report on virtual clinic which encourages us to think about how our legal expertise can be shared through new media. their account gives insight into the parameters of such a service, through setting up, client and student experiences. finally, amy barrow’s paper looks in great depth at the need for and the growth of public interest law in hong kong – encouraging us to look at this place, this legal and philosophical position and the role of lawyers and law teachers in a new way. please let me know of upcoming events in the cle world for our february 2016 edition. next year (1-3 april 2016) our colleagues in south africa host the ed o’brien international street law and legal literacy best practices conference, which will honour our late colleague ed o’brien and celebrate the 30th anniversary of the first international street law programme established at the university of kwazulu-natal (formerly the university of natal), south africa. the conference will be preceded by a three day ed o’brien memorial safari (29-31 march 2016) to the world famous hluhluwe-imfolozi game reserve where the white rhinoceros was saved from extinction). looking further ahead, a reminder of the two events scheduled (relatively) near to one another in time and space next july. the ijcle conference with the association for canadian clinical legal education (accle) conference will be hosted by the university of toronto from 10-12july. the conference, entitled the risks and rewards of clinic encourages participants to reflect on the balance between risk and reward for all the stakeholders in clinic. we have a fantastic range of papers, seminars and symposia and i’m delighted to announce that we have managed to secure sarah buhler and adrian evans as keynote speakers. this will be followed by the international legal ethics conference vii (ilec vii), which fordham law school will host in new york city on july 14-16, 2016 focusing on legal education, ethics, technology, regulation, globalization and rule of law (www.law.fordham.edu/ilec2016). i hope to meet many more colleagues in 2016. laing, r. d., (1971) knots. ringwood, victoria: penguin. clinical legal education in asia accessing justice for the underprivileged, edited by shuvro sarker (palgrave macmillan), 2015, 288pp, £65 (hardback), isbn 978-1-137-51752-4 asia has slowly but surely been emerging as an exciting addition to the clinical legal education (cle) family. this text is therefore a timely publication, drawing attention to the development and current state of cle in the east. the book aims to provide “the history, present status, and possible future models of clinical legal education” in asia. to that end it comprises 12 chapters organised by country, from turkey travelling to japan and covering all regions in between, namely, israel, palestine, india, sri lanka, china, thailand, hong kong, singapore, south korea and taiwan. collectively the sections provide a striking overview of cle with each chapter locating clinic in the context of its regional characteristics. editor shuvro prosun sarker, who is fast developing a reputation of being a figurehead for legal education in asia, has curated an insightful set of essays. the list of contributors is extensive, embracing well known global clinicians, such as bruce lasky, and emerging names from the region. the text has an accessible structure; there is an overarching introduction which briefly outlines the history of cle and the characteristics of asian clinical approaches. the extensive list of conferences held since 2005, listed in chapter 1, is probably only of interest to diehards but it does demonstrate how quickly the power of cle can spread and take hold. each of the following 12 chapters focuses ( ijcle vol 23 no 2 ) ( 78 ) on a particular country so one can dip in and out to suit one’s interests. content wise, the book guides the reader through some of the most developed cle regions (eg india) to newcomers such as china (which developed cle programmes in 2000) to those still struggling to gain a foothold on the clinical ladder (eg the maldives). over approximately 20 pages each, the respective chapters provide a sound synopsis of how cle operates in a particular jurisdiction. this summary is supplemented by helpful references to additional sources for readers wishing to delve further into the scholarship. sarker identifies that cle in asia is characterised by empowerment, justice and skills, topics which permeate the whole book. the text also addresses the familiar issues of social justice, clinic as a tool for bridging the gap between legal education and practice, and a variety of pedagogical models, which readers from across the globe will be able to relate to. there are a range of themes which emerge from the text, all of which provide food for thought. the importance of sustainability is noted; the influence of socio-political and economic factors on clinical success and design is also apparent. collaboration has clearly played a crucial role in establishing and maintaining the respective projects featured in the text. this latter point provides an opportune reminder, particularly to uk clinicians and indeed governments, as we see the erosion of third sector agencies in these continuing times of austerity. it was particularly interesting to learn about the endeavours of clinical projects in rural areas and the challenges this can bring. that has not stifled creativity however, with countries offering assistance in the areas such as farmer’s justice (china). the breadth of cle projects is also impressive addressing the rights of the disadvantaged, women’s rights and labour rights (china) people living with hiv (vietnam) and transgender rights (thailand). cle in asia is in its infancy but this has benefit of fresh perspective, youthful enthusiasm and innovation, as is evidenced in some of the clinical projects explored in this book. despite being in its formative years, experienced clinicians will enjoy reading about, and indeed can learn from, the myriad of models employed by our asian clinical cousins. the range of case studies, statistical data and student feedback which feature in the book are equally informative. whilst the story of cle in asia is largely positive, the book does not gloss over the barriers faced in establishing and embedding the pedagogy. despite best efforts, cle has failed to gain any traction in the maldives. whilst it may seem incongruous for this chapter to be included alongside its more successful neighbours, it provides helpful insights into what obstacles exist and how these pitfalls might be avoided in future projects. in terms of target audience the book will naturally be of particular interest to clinicians. however its appeal will also extend to legal educators more generally, since each chapter positions cle within the broader legal and educational framework of the respective countries. it will be an invaluable reference point for asian based academics seeking to engage with cle or establish a clinic in the area, or global practitioners looking to work in the locality. in some respects our asian counterparts are more radical in their adoption of cle programmes, with several universities imposing mandatory pro bono work (eg taiwan and singapore). for this reason the text has the potential to reinvigorate established clinicians providing renewed impetus, and inspire colleagues new to the field. the price of the book may be slightly prohibitive for some clinics and small law school libraries operating on a tight budget and it is hoped that a paperback will soon make an appearance to help disseminate more widely the great practice that is emerging from asia. failing that, an ebook is available. the book has received positive reviews from leading voices who have worked extensively in the realm of asian cle. frank bloch proclaims that the book “offers important insights into the evolution of clinical programs throughout the region. its various chapters demonstrate a shared commitment to the social justice mission of clinical legal education that is emblematic of a vibrant global clinical movement. it is an important addition to the growing literature on the spread of clinical legal education around the world.” [backcover comment] this is indeed “an opportunity to reflect on the curious lineage within which this branch of legal education has developed.” however, as comprehensive as this text is, an additional final chapter drawing together all of the themes and future direction of travel would have resulted in a less abrupt ending to the travels through the asian clinical world. nonetheless, as contributors marsh and ramsden proclaim, this is indeed a “dynamic corner of the globe” and this book is a delight to read. i look forward to watching with interest how asian continues to build its cle projects – as this book evidences, it has certainly laid strong foundations. victoria murray northumbria university v.murray@northumbria.ac.uk reviewed article: teaching and learning in clinic online clinical legal education: challenging the traditional model les mccrimmon*, ros vickers** and ken parish***, charles darwin university, australia it has been suggested that the “digital age provides an opportunity to revitalize and modernize legal education and to make it more individualized, relevant, human, and accessible”.[footnoteref:1] delivery of law degree programs fully online is one way the internet has begun to change, if not (yet) revolutionise, legal education in the twenty-first century. in australia, law students have been able to obtain their law degree online for a number of years. online clinical legal education, however, is still in its infancy. [1: *les mccrimmon is professor of law at charles darwin university and a fellow of the australian academy of law. he was formerly a full-time commissioner with the australian law reform commission, and the director of clinical programs at the university of sydney. he also served on the international steering committee of the global alliance for justice education for six years. **ros vickers is a lecturer of law at charles darwin university. she is the northern territory editor of the australian environmental law review. ***ken parish is a senior lecturer of law at charles darwin university. he pioneered and oversaw the implementation and development of cdu’s online law degree program starting in 2003. w binford, ‘envisioning a twenty-first century legal education’, (2013) 43 ujl&pik’y 157.] in this article, the authors argue that the greater use of technology in legal education is inevitable, and law schools offering degrees fully online will continue to increase, at least in australia. the rewards and risks of online legal education are considered from the perspective of a law school in which over 80% of its 855 students study law fully online. the development and implementation of clinical opportunities for students studying online also is discussed. introduction in 2000, three respected american clinicians were invited by the clinical law review to consider the issues they regarded as important to the future of clinical legal education. in responding to this challenge, martin barry, dubin and joy, when considering how clinical legal education should adapt to the digital age, noted: aside from influencing the place of clinical education in the new millennium, technological advances will affect the forms of clinical education by making possible new and different teaching and service opportunities and clinical models.[footnoteref:2] [2: m martin barry, j dubin, p joy, ‘clinical education for this millennium: the third wave’ (2001) 7 clinical l rev 1 at 53.] while only an idea in 2000, the ability of law students to undertake a clinical unit while studying fully online has become a reality in at least one australian law school; charles darwin university (‘cdu’). how this clinical unit fits within the evolution of clinical legal education is discussed, as is the evolution of online legal education more broadly. the risks and rewards of online legal education, and online clinical legal education in particular, are canvassed, and the structure of the cdu clinical unit is explained. binford has suggested that advances in digital technology have ushered in a new age in legal education.[footnoteref:3] we agree and it can be anticipated that clinical opportunities for those studying law fully online will continue to evolve not only in australia, but also in other countries. it is hoped that the experiences of an early adopter of online clinical legal education will assist others considering a similar path. [3: w binford, ‘envisioning a twenty-first century legal education’, (2013) 43 ujl&pik’y 157 at 180.] the evolution of clinical legal education the role of communication and information technologies in clinical legal education must be considered in the context of the evolution of clinical legal education. the latter is a well-trodden path and, therefore, the treatment of the topic in this paper will be brief.[footnoteref:4] [4: generally, see j frank, ‘why not a clinical law school?’ (1933) 81 u pa l rev 907; g grossman, ‘clinical legal education: history and diagnosis’ (1974) 26 j leg ed 162; j giddings, ‘contemplating the future of clinical legal education’ (2008) 17 griffith l rev 1; m martin barry, j dubin, p joy, ‘clinical education for this millennium: the third wave’ (2001) 7 clinical l rev 1; j giddings, r burridge, s gavigan, c klein, ‘the first wave of modern clinical legal education: the united states, britain, canada and australia’ in the global clinical movement: educating lawyers for social justice (f bloch ed, oup, 2011) ch 1.] an early iteration of clinical legal education was that conceptualised by the american academic, legal philosopher and jurist, jerome frank, in the 1930s.[footnoteref:5] while not the first call for a change to the way law was taught in american law schools,[footnoteref:6] frank is recognised as a leader of the legal realist movement and a pioneer in the cause of clinical legal education.[footnoteref:7] [5: j frank, ‘why not a clinical law school?’ (1933) 81 u pa l rev 907 at 917-918. see also g grossman, ‘clinical legal education: history and diagnosis’ (1974) 26 j leg ed 162 at 169.] [6: martin barry, dubin and joy note that as early as 1917, william rowe “advocated “law school based clinical legal education as the best way to train law students to become competent lawyers”: m martin barry, j dubin, p joy, ‘clinical education for this millennium: the third wave’ (2001) 7 clinical l rev 1 at 6. see also w rowe, ‘legal clinics and better trained lawyers – a necessity’ (1917) 11 ill l rev 591. in russia, the call for change sounded 16 years earlier. wilson notes that “as early as 1901 clinical legal education was proposed by a russian professor, alexander lyublinsky, who believed that a law school clinical component could be modelled on medical training”: r wilson, ‘training for justice: the global reach of clinical legal education’ (2004) 22 penn st int’l l rev 421.] [7: m martin barry, j dubin, p joy, ‘clinical education for this millennium: the third wave’ (2001) 7 clinical l rev 1 at 8; g grossman, ‘clinical legal education: history and diagnosis’ (1974) 26 j leg ed 162 at 168-169. ] concerned about the prevalence of a ‘library law’ approach to legal education based on dean christopher columbus langdell’s casebook method of law teaching,[footnoteref:8] frank, influenced by the teaching method employed in medical schools,[footnoteref:9] advocated for the establishment of legal clinics in law schools run by academic staff and assisted by graduate students, undergraduate students, and leading members of the legal profession. such clinics “would be done for little or no charge”,[footnoteref:10] and the “teacher-clinicians would devote their full time to their teaching, including such clinical work, and would not engage in private practice”.[footnoteref:11] [8: j frank, ‘why not a clinical law school?’ (1933) 81 u pa l rev 907 at 908.] [9: j frank, ‘why not a clinical law school?’ (1933) 81 u pa l rev 907 at 917.] [10: j frank, ‘why not a clinical law school?’ (1933) 81 u pa l rev 907 at 917.] [11: j frank, ‘why not a clinical law school?’ (1933) 81 u pa l rev 907 at 917.] it was not until the 1960s, and the establishment of the council on education in professional responsibility (coepr), that “clinical legal education solidified and expanded its foothold in the academy”[footnoteref:12] through the “establishment of law clinics at a number of law schools”.[footnoteref:13] these early clinics focused on legal service delivery, usually to disadvantaged members of the community. according to grossman, community service, rather than educational benefit, was the main objective.[footnoteref:14] [12: m martin barry, j dubin, p joy, ‘clinical education for this millennium: the third wave’ (2001) 7 clinical l rev 1 at 12. ] [13: g grossman, ‘clinical legal education: history and diagnosis’ (1974) 26 j leg ed 162 at 172-173.] [14: g grossman, ‘clinical legal education: history and diagnosis’ (1974) 26 j leg ed 162 at 174.] in the early evolution of clinical legal education, the distinction between in-house clinics located in, or run by, the law school, and externships, was not pronounced. grossman, writing in 1974, noted: the format of service-orientated clinical programs generally involves the farming out of students to various community law offices … at the law offices students work under the supervision of a staff attorney. a member of the law faculty or a clinical appointee is also responsible for supervision from the law school – at least on a part-time basis. a classroom component may be added to the program to orient students at the start and/or to take stock of their experiences during or after their field work.[footnoteref:15] [15: g grossman, ‘clinical legal education: history and diagnosis’ (1974) 26 j leg ed 162 at 175.] the clinical legal education movement was not confined to the united states. as giddings notes, “countries including australia, canada, chile, england, india, south africa, the united states and zimbabwe saw the development of clinical programs in the 1960s and 1970s”.[footnoteref:16] whether in-house or ‘farmed out’, clinical legal education in the 1960s and 1970s focused on caseload management and service delivery to real clients in a law office setting. [16: j giddings, ‘contemplating the future of clinical legal education’ (2008) 17 griffith l rev 1 at 2. see also r wilson, ‘training for justice: the global reach of clinical legal education’ (2004) 22 penn st int’l l rev 421 at 421-422; j giddings, r burridge, s gavigan, c klein, ‘the first wave of modern clinical legal education: the united states, britain, canada and australia’ in the global clinical movement: educating lawyers for social justice (f bloch ed, oup, 2011) ch 1.] today, clinical legal education is truly global in scope,[footnoteref:17] and takes a variety of forms. in addition to real-client clinics, law students around the world are involved in raising community awareness of legal rights through street law programs,[footnoteref:18] legal policy formulation through externships at law reform bodies and government agencies,[footnoteref:19] and learning professional ethics and practice skills thorough simulations.[footnoteref:20] [17: as evidenced by organisations such as the global alliance for justice education (www.gaje.org), and the international journal of clinical legal education (www.ijcle.com). generally see f bloch, ‘access to justice and the global clinical movement’ (2008) 28 wash u j l & pol’y 111; the global clinical movement: educating lawyers for social justice (f bloch ed, oup, 2011) pt 1.] [18: for a description of street law, see www.streetlaw.org. see also r grimes, d mcquoid-mason, e o’brien, j zimmer, ‘street law and social justice education’ in the global clinical movement: educating lawyers for social justice (f bloch ed, oup, 2011) ch 15.] [19: see l mccrimmon, e santow, ‘justice education, law reform, and the clinical method’ in the global clinical movement: educating lawyers for social justice (f bloch ed, oup, 2011) ch 14.] [20: see n duncan, s kay, ‘addressing lawyer competence, ethics, and professionalism’ in the global clinical movement: educating lawyers for social justice (f bloch ed, oup, 2011) ch 12.] according to milstein, clinical legal education is defined by the educational outcome achieved, rather than by the existence of a ‘client’ in the process. he divides clinical legal education into three branches; in-house real-client clinics,[footnoteref:21] externships, and simulations. [21: we prefer the term ‘real-client’ rather than ‘live-client’ when describing the nature of an in-house clinic.] not all would agree with milstein’s broad definition of clinical programs. evans, for example, takes a more traditional view when he describes a clinic as “supervised experiential encounters between clients and their legal advisors, in the interest of just case outcomes, the processes of law reform and political renewal”.[footnoteref:22] one of the authors of this article, relying on the work of rice and coss,[footnoteref:23] previously distinguished clinical from other forms of legal education based on the following:[footnoteref:24] [22: a evans, ‘global agendas, cultural capital, and self-assessment of clinical legal education programs’ (2012) 38 monash u l rev 55 at 59. see also r wilson, ‘training for justice: the global reach of clinical legal education’ (2004) 22 penn st int’l l rev 421 at 422-423.] [23: s rice, g coss, a guide to implementing clinical teaching method in the law school curriculum (sydney, centre for legal education, 1996).] [24: l mccrimmon, mandating a culture of service: pro bono in the law school curriculum (2003-2004) 14 legal ed rev 53 at 57.] · the presence of a real client in the student’s activities; · a focus on ethics and professionalism, social needs and the lawyer’s role in society, rather than development of legal skills competency; and · emphasis on community service to people with legal need but without the resources to address the need to a sufficient degree or at all. based on these criteria, the absence of a client disqualifies a program from being described as ‘clinical’. pro bono placements, simulations, and externships that do not involve advice to, and representation of, a real client would not qualify as a clinical program. while historically the existence of a client in the law student’s activities was critical to a determination of whether the activity could be considered ‘clinical’, the primary focus of clinical legal education has shifted to place a greater emphasis on the student’s learning experience.[footnoteref:25] while community service through assisting disadvantaged members of society is still an important component of most clinical programs, we agree with giddings that, [25: for example see r wilson, ‘training for justice: the global reach of clinical legal education’ (2004) 22 penn st int’l l rev 421 at 424.] clinical teaching can be usefully characterised by way of a clinical continuum which relates to the degree of control exercised over the teaching setting. the emphasis on critique and reflection is a constant while control over the environment varies.[footnoteref:26] [26: j giddings, ‘a circle game: issues in australian clinical legal education’ (1999) 10 legal ed rev 33 at 35.] while the clinical program at charles darwin university (‘cdu’) does not include stand-alone legal skills units such as trial advocacy and alternate dispute resolution within its definition of clinical offerings, we do apply a broader definition of ‘client’ than that used by evans, rice and coss. for example, a student externship at an independent law reform body whose notional ‘client’ is usually broadly defined as a state or federal government would warrant the designation of a ‘clinical placement’. further, if a student was placed in the legal policy unit of a community legal centre,[footnoteref:27] such a placement would still be considered ‘clinical’ notwithstanding that the student would not interact directly with the centre’s clients. finally, law students involved in a street law unit would, at least as we apply the definition, be considered a clinical legal education program.[footnoteref:28] [27: the ability of community legal centres to engage in policy work has decreased significantly in australia since 1 july 2014 as a result of the actions of the commonwealth government prohibiting legal centres receiving commonwealth government funding from using such funds for law reform projects: see http://www.lawyersweekly.com.au/news/15506-ala-slams-ban-on-clc-advocacy (accessed 27 september 2016). ] [28: for a description of street law, see www.streetlaw.org. see also r grimes, d mcquoid-mason, e o’brien, j zimmer, ‘street law and social justice education’ in the global clinical movement: educating lawyers for social justice (f bloch ed, oup, 2011) ch 15.] this broad definition of clinical legal education sits comfortably with the concept at a global level. the fact that clinical legal education can now be described as a global movement is evidenced by a number of sources, including: · the large number of transnational collaborations among clinicians from different parts of the world;[footnoteref:29] [29: the global clinical movement: educating lawyers for social justice (f bloch ed, oup, 2011) pt i; f bloch, ‘access to justice and the global clinical movement’ (2008) 28 wash u j l & pol’y 111 at 116.] · the existence of truly global organisations such as the global alliance for justice education (‘gaje’)[footnoteref:30] which, at its 8th worldwide conference held in eskişehir, turkey in july 2015, attracted 350 delegates[footnoteref:31] (most of whom were clinicians) from all regions of the world; [30: for a discussion of the history of gaje see e santow, g mukundi wachira, ‘the global alliance for justice education’ in the global clinical movement: educating lawyers for social justice (f bloch ed, oup, 2011) ch 25.] [31: the number of delegates had to be capped at 350 due to venue capacity.] · the ever-increasing incorporation of clinical teaching methodology in law school curricula worldwide;[footnoteref:32] and [32: for example see the global clinical movement: educating lawyers for social justice (f bloch ed, oup, 2011) pt i; f bloch, ‘access to justice and the global clinical movement’ (2008) 28 wash u j l & pol’y 111; y cai, ‘global clinical legal education and international partnerships: a chinese legal educator’s perspective’ (2011) 26 md j int’l l 159; s rosenbaum, ‘the legal clinic is more than a sign on the door: transforming law school education in revolutionary egypt’ (2012) 5 berkley j middle e & islamic l 39; b lasky, n nazeri, ‘the development and expansion of university-based community/clinical legal education programs in malaysia: means, methods, strategies’ (2011) 16 int’l j clinical legal educ 59.] · legal publications dedicated to fostering international clinical legal education, the most prominent being the international journal of clinical legal education published in the united kingdom,[footnoteref:33] and the book, the global clinical movement: educating lawyers for social justice edited by professor frank bloch (oup, 2011). [33: see www.northumbriajournals.co.uk/index.php/ijcle (accessed 27 september 2016).] while the content of a clinical legal education program can differ between countries, and between universities within the same country, bloch suggests that the clinical dimension of any program has common features. to begin, three elements stand out as constituting the most important commonly conceived notions of clinical legal education around the world: professional skills training, experiential learning, and instilling professional values of public responsibility and social justice. these three elements interact, with varying degrees of emphasis, to form the core of a global conception of clinical legal education. although they can be described separately, they often are interdependent, and each can influence how the others are conceived and implemented.[footnoteref:34] [34: f bloch, ‘access to justice and the global clinical movement’ (2008) 28 wash u j l & pol’y 111 at 121.] it follows that, in a global context, the concept of clinical legal education is broader than that espoused by evans and others, discussed above. the absence of a client in the process would not disqualify a program from being designated as ‘clinical’. further, it is broader than that three branches of clinical legal education identified by milstein;[footnoteref:35] in-house real-client clinics, externships, and simulations. [35: e milstein, ‘clinical legal education in the united states: in-house clinics, externships, and simulations’ (2001) 51 j legal educ 375 at 376.] in particular, the involvement of law students in many street law programs, which are expanding rapidly in central and south america, eastern europe, africa, the middle east and asia,[footnoteref:36] would warrant designation as a clinical program. we agree with bloch who has observed that the diversity of clinical programs has contributed to its richness worldwide.[footnoteref:37] [36: for example see b lasky, n nazeri, ‘the development and expansion of university-based community/clinical legal education programs in malaysia: means, methods, strategies’ (2011) 16 int’l j clinical legal educ 59 at 63; r grimes, d mcquoid-mason, e o’brien, j zimmer, ‘street law and social justice education’ in the global clinical movement: educating lawyers for social justice (f bloch ed, oup, 2011) ch 15; a pandey, s shukkur, ‘legal literacy projects: clinical experience of empowering the poor in india’ in the global clinical movement: educating lawyers for social justice (f bloch ed, oup, 2011) ch 16.] [37: bloch, ‘access to justice and the global clinical movement’ (2008) 28 wash u j l & pol’y 111 at 115.] online legal education definitions the definition of online legal education, like clinical legal education more broadly, warrants consideration. what constitutes an online course varies, depending on the mode of distance learning used. the term ‘distance learning’ can be defined as “communication which connects instructors and students who are separated by geography and, often, time”.[footnoteref:38] [38: h leskovac, ‘distance learning in legal education: implications of frame relay videoconferencing’ (1998) 8 alb l j sci & tech 305 at 309. see also m perlin, ‘an internet-based mental disability law program: implications for social change in nations with developing economies’ (2006-2007) 30 fordham int’l l j 435 at 439.] as twining reminds us, “distance learning or distance education are relatively new names for long-established practices that have gone by less enticing titles, such as correspondence courses and external degrees”.[footnoteref:39] in the context of legal education, such programs can trace their roots to at least the mid-nineteenth century. the university of london external llb, which is still offered,[footnoteref:40] started in 1850 and has been available to international students since 1858.[footnoteref:41] [39: w twining, ‘developments in legal education: beyond the primary school model’ (1990-1991) 2 legal ed rev 35 at 45.] [40: see www.londoninternational.ac.uk/llb (accessed 27 september 2016).] [41: w twining, ‘developments in legal education: beyond the primary school model’ (1990-1991) 2 legal ed rev 35 at 45.] the concept of e-learning can be defined as “learning facilitated and supported through the use of information and communication technologies”.[footnoteref:42] online, or e-learning, legal education “involves the use of information, communication and instructional technologies to enhance students’ learning of the law and to provide law teachers with environments and tools for teaching the law”.[footnoteref:43] through the use of online systems software such as blackboard learn[footnoteref:44] and moodle[footnoteref:45] (to name but two), students can undertake degree programs without ever setting foot on a university campus. [42: s bloxham, ‘widening access and the use of ict in legal education’ (2005) 39 law teacher 93 at 99.] [43: p maharg, a muntjewerff, ‘through a screen darkly; electronic legal education in europe’ (2002) 36 law teacher 307.] [44: blackboard learn is a virtual learning environment and course management system developed by blackboard inc. as at the date of writing this article, it was the most widely used leaning management system used by law schools in australia. for a general discussion of blackboard learn, see www.blackboard.com/learning-management-system/blackboard-learn.aspx (accessed 27 september 2016), or en.wikipedia.org/wiki/blackboard_learn (accessed 27 september 2016).] [45: moodle is a free, open source, learning management system. generally see https://moodle.org (accessed 27 september 2016); en.wikipedia.org/wiki/moodle (accessed 27 september 2016). moodle was originally an acronym for “modular object-orientated dynamic learning environment”: https://en.wikipedia.org/wiki/moodle (accessed 7 january 2016).] online learning can be either synchronous or asynchronous, or a combination of the two. synchronous e-learning takes place when all participants are interacting at the same time, commonly supported by audio and videoconferencing software such as skype, virtual classrooms such as blackboard collaborate,[footnoteref:46] and chat facilities in the online systems software. asynchronous e-learning occurs when teachers and students are not online at the same time, and is commonly supported by email, discussion boards, wikis, blogs, podcasts and audio recordings which students can access at a time that suits them.[footnoteref:47] [46: for a description of blackboard collaborate see www.blackboard.com/online-collaborative-learning/index.aspx (accessed 27 september 2016).] [47: generally see s hrastinski, ’asynchronous & synchronous e-learning’ (2008, no 4) educause quarterly 51 at 51-52; https://en.wikipedia.org/wiki/educational_technology (accessed 27 september 2016); evaluation of evidence-based practices in online learning: a meta-analysis and review of online learning studies (us department of education office of planning, evaluation, and policy development policy and program studies service, september 2010) at 4.] why online legal education? as noam observes, the lecture method of face-to-face teaching, which requires the physical aggregation of students in one place, “remained remarkably stable for 2,500 years”.[footnoteref:48] noam argues that, with the advent of information and communication technologies, the predominant paradigm is breaking down. [48: e noam, ‘electronics and the future of law schools’ (2008) 17 j contemp legal issues 51 at 52-53.] the reason is not primarily technological. technology simply enables change. the first fundamental reason is that the production of information has undermined the traditional university structure, making it ready to implode once alternatives to its function become possible.[footnoteref:49] [49: e noam, ‘electronics and the future of law schools’ (2008) 17 j contemp legal issues 51 at 53.] another factor placing strain on the traditional mode of face-to-face teaching is the increasing demand on a law student’s time. gone are the days, at least in australia and we suspect elsewhere, when most law students studied full-time and worked only in the university breaks. today, students juggle a variety of commitments; work (often full-time), family and social. an increasing number of students want to study at a time and in a place that suits them, not at a time and in a place mandated by the university. for students living in rural, remote and regional centres without a tertiary institution, undertaking a degree online is a viable, and often the only, way to attend university. in australia, students living in such areas are less likely to attend university than those living in larger cities.[footnoteref:50] this is due to a number of factors, including the comparatively greater number of students from low socioeconomic backgrounds in regional and remote areas,[footnoteref:51] lower secondary school completion rates and lower university entrance scores. these factors make it more difficult for students from rural, remote and regional centres to move to larger cities to attend university.[footnoteref:52] as kemp and norton note, “[l]ong distances to campuses create logistical problems in getting to a higher education provider for many people outside the major urban centres. leaving home to study adds to the total cost of education”.[footnoteref:53] [50: d kemp, a norton, review of the demand driven funding system (australian government, 2014) at [4.4].] [51: australian government department of education, employment and workplace relations, regional participation: the role of socioeconomic status and access (commonwealth of australia, 2010) at 4.] [52: d kemp, a norton, review of the demand driven funding system (australian government, 2014) at [4.4].] [53: d kemp, a norton, review of the demand driven funding system (australian government, 2014) at [4.4]. see also, australian government department of education, employment and workplace relations, regional participation: the role of socioeconomic status and access (commonwealth of australia, 2010) at 6.] the low tech, lecture based, system of education often venerated by the baby-boomer generation[footnoteref:54] also no longer resonates with students in the digital age.[footnoteref:55] as rosenberg suggests: [54: the term ‘baby boomer generation’ in an australian context refers to people born post-world war ii approximately between the years 1946 and 1965, giving an age range between 50 and 70 as of 2016: abs newsletter 4914.0.55.001 at www.abs.gov.au (accessed 27 september 2016); macquarie concise dictionary (4th ed, 2006) at 76.] [55: the ‘digital age’ is “defined as the time period starting in the 1970s with the introduction of the personal computer with subsequent technology introduced providing the ability to transfer information freely and quickly”: see www.yourdictionary.com/digital-age (accessed 27 september 2016). see also cambridge dictionary online at: www.dictionary.cambridge.org/dictionary/english/digital-age (accessed 27 september 2016).] as the presence of technology becomes increasingly ubiquitous and user-friendly, and the lives of our students are inextricably linked with technology, we should embrace the potential of online learning to enhance the quality of our teaching, the learning experience of our students, and most importantly, how effectively we prepare students for the challenge of lawyering in the twenty-first century.[footnoteref:56] [56: j rosenberg, ‘confronting cliches in online instruction: using a hybrid model to teach lawyering skills’ (2008-2009) 12 smu sci & tech l rev 19 at 82.] the transmission of information and ideas is not the exclusive purview of face-to-face teaching. this can be done as effectively online.[footnoteref:57] further, as e-learning systems software continues to improve the comparative advantage enjoyed by face-to-face law school instruction – namely, mentoring, teacher/student and student/student engagement, and skills training – diminishes. for example, since 2010 law students studying online at cdu have been able to complete skills units such as trial advocacy and dispute resolution, and, through the use of blackboard collaborate, can interact with staff and other students synchronously online. as binford has noted: [57: e noam, ‘electronics and the future of law schools’ (2008) 17 j contemp legal issues 51 at 61-62; evaluation of evidence-based practices in online learning: a meta-analysis and review of online learning studies (us department of education office of planning, evaluation, and policy development policy and program studies service, september 2010) at xviii.] the world that twentieth century law professors know is no more. fortunately, we stand at a crossroads where we have an opportunity to build a new one. this is our gutenberg moment.[footnoteref:58] [58: w w binford, ‘envisioning a twenty-first century legal education’ (2013) 43 wash u j l & policy 157 at 180.] the reference to gutenberg is informative. a technological revolution was ushered in by gutenberg’s invention of mechanical moveable type.[footnoteref:59] in the words of mcluhan, “[t]he mechanical printed page was crossed with a new organic form that changed layout as it changed politics and society”.[footnoteref:60] while it is too early to ascertain whether the advent of the digital age will mark a comparable milestone in human political and social evolution, there are some interesting parallels between the advent of the printing press and the rapid development of the internet and its offshoot, online education. of particular note in the context of this article is the ongoing resistance of admissions bodies in recognising law degree programs offered fully online, and of academics in engaging with digital technologies. [59: whether gutenberg invented movable type is questionable. as briggs and burke note: “in the early fifteenth century … the koreans invented a form of movable type with what has been described by the french scholar henri-jean martin as ‘an almost hallucinatory similarity to gutenberg’s’”: a briggs, p burke, a social history of the media: from gutenberg to the internet, (polity press, 2002) at 15.] [60: m mcluhan, the guttenberg galaxy (10th ed, 2010, university of toronto press) at 129. ] as briggs and burke note, “the triumphalist accounts of [gutenberg’s] invention were matched by what we might call catastrophist narratives”.[footnoteref:61] those whose perceived self-interest was affected by the new technology – publishers of hand-written texts, and the churchman and wealthy who enjoyed a virtual monopoly on literacy – did not embrace the printing revolution.[footnoteref:62] this notwithstanding, the gradual ubiquity of the printing press was a catalyst for change,[footnoteref:63] and it can be anticipated that both the use of, and rapid advancements in, digital technology in the twenty-first century will result in significant changes both to the way law students are taught and to the way they learn.[footnoteref:64] [61: a briggs, p burke, a social history of the media: from gutenberg to the internet, (polity press, 2002) at 17.] [62: a briggs, p burke, a social history of the media: from gutenberg to the internet, (polity press, 2002) at 17-18.] [63: briggs and burke noted that adaption of the new print medium was gradual, and posited whether “a revolution which is not rapid can be regarded as a revolution at all”: a briggs, p burke, a social history of the media: from gutenberg to the internet, (polity press, 2002) at 22.] [64: flood opines that technology will have a profound effect on legal education, but goes on to note that “it has not occurred yet”: j flood, ‘global challenges for legal education: competing for the world’s law students’ (2015) 24 nottingham l j 79 at 87.] further (as occurred in the decades following gutenberg’s invention[footnoteref:65]), today not everyone embraces the digital revolution in learning and teaching occurring at this early stage of the twenty-first century. the ability of students to complete their undergraduate law degree fully online is actively discouraged in some jurisdictions. in the united states, for example, standard 306 of the american bar association’s (‘aba’) standards and rules for approval of law schools denies accreditation to any law school that provides a juris doctor (‘jd’) degree fully by distance education.[footnoteref:66] as the aba warns would-be lawyers on its website, “earning an education completely via distance education may drastically limit your ability to sit for the bar in many states”.[footnoteref:67] despite such a significant deterrent, a number of unaccredited law schools offer online jd degrees, with graduates who wish to practice law sitting the bar exam in jurisdictions, such as california, which permit them to do so.[footnoteref:68] [65: while the printing press was embraced by europeans, the orthodox christian and muslim worlds resisted the new technology: a briggs, p burke, a social history of the media: from gutenberg to the internet, (polity press, 2002) at 16-17.] [66: generally see http://www.americanbar.org/groups/legal_education/resources/distance_education.html (accessed 27 september 2016).] [67: www.americanbar.org/groups/legal_education/resources/distance_education.html (accessed 27 september 2016).] [68: s bennett, ‘distance learning in law’ (2014) 38 seaton hall legis j 1 at 3.] the resistance to online legal education from within law schools also cannot be underestimated. many legal academics are reluctant to embrace new teaching approaches and methods. as martin barry, dubin and joy noted, “law faculty are extremely adept at resisting changes in legal education that ‘disrupt the comfort of life within the institution’ or are otherwise contrary to self-interest”.[footnoteref:69] [69: m martin barry, j dubin, p joy, ‘clinical education for this millennium: the third wave’ (2001) 7 clinical l rev 1 at 52, quoting from r uphoff, j clark, e monhan, ‘preparing the new law graduate to practice law: a view from the trenches’ (1997) 65 u cin l rev 381 at 421.] fortunately for proponents of online legal education and law students in australia, the governing admissions body, the law admissions consultative committee (‘lacc’), has adopted a different, more enlightened, view. lacc is the national body which sets the academic requirements for the admission of australian lawyers, and is made up of representatives from the law admission authorities in each australian jurisdiction, the committee of australian law deans, the australian professional legal education council and the law council of australia.[footnoteref:70] [70: generally see www.lawcouncil.asn.au/lacc (accessed 27 september 2016). ] this is not to suggest that lacc has been unconcerned about the proliferation of online llb and jd programs offered by australian universities. to accept a change in the status quo, lacc had to be convinced that a fully online law degree program was not a diluted version of the standard law curriculum taught face-to-face. in february 2012, lacc invited professor les mccrimmon from cdu and professor stephen colbran, then from the university of new england, to address committee members on the teaching of law in the digital learning environment. subsequently, lacc was satisfied that the educational and professional standards it sets can be achieved through a fully online degree program. for the purposes of admission to legal practice in australia, therefore, no distinction is made by australian admission authorities between students who have completed their law degree fully online and those who were taught on-campus. in 2015, there were 36 law schools in australia. a small, but increasing, number offer llb and/or jd programs fully online.[footnoteref:71] writing in 2013, emeritus professor david weisbrot, a former dean of sydney university law school, noted that: [71: as at the end of 2015, an llb or jd could be obtained fully online at 7 australian universities: charles darwin university, university of new england, southern cross university, university of southern queensland, central queensland university, edith cowan university, rmit (through open universities australia).] a generation ago, distance education was seen as the poor cousin … this has all changed enormously with the revolution in information and communications technology, which permits access to high-quality online materials, more regular contact and interactive discussions with staff and fellow students, and virtually limitless online access to legal and research materials.[footnoteref:72] [72: d weisbrot, so you want to be a lawyer (acer press, 2013) at 49.] while online legal education is gaining in popularity in australia, the inclusion of a clinical legal education unit as part of an online degree is still in its infancy. of the law schools offering a fully on-line law degree, only cdu offers external students the opportunity to undertake a clinical unit for credit. another online law degree provider, central queensland university (‘cqu’), is developing clinical opportunities for students, but as at the date of writing, this program is at a very early stage of development. students enrolled in civil procedure and employment law at cqu have the opportunity to log in via the zoom web-conferencing service[footnoteref:73] to observe online client interviews conducted by legal practitioners in partner legal centres, but cqu is not yet at the stage of allowing students to provide legal advice under supervision. over the next five years, cqu plans to embed clinical opportunities for students into substantive law units, although such opportunities are still being developed. [73: for a discussion of the zoom web conferencing service see: https://zoom.us.] as shall be discussed in greater detail below, an online component of a clinical legal education program changes the way in which students interact with clinical faculty, other students working on the same project, and a client (if there is one). such interaction involves the use of information, communication and instructional technologies to facilitate the unit’s educational objectives; and in particular the process by which students reflect on their experiences. the way in which clinical faculty interact with site supervisors at the clinic or placement also is affected. rewards and risks of online education an assessment of the rewards and risks of any form of education is often subjective, influenced significantly by the way those making the assessment were taught, the stereotypes to which the assessor subscribes,[footnoteref:74] and the degree of self-interest involved in the assessment. generally, however, the perceived rewards and risks of online education tend to be described as follows.[footnoteref:75] [74: e noam, ‘electronics and the future of law schools’ (2008) 17 j contemp legal issues 51 at 61.] [75: generally see: e noam, ‘electronics and the future of law schools’ (2008) 17 j contemp legal issues 51 at 61-62; j rosenberg, ‘confronting cliches in online instruction: using a hybrid model to teach lawyering skills’ (2008-2009) 12 smu sci & tech l rev 19 at 19-21.] table 1 – rewards and risks of online learning rewards risks overcoming the constraints of space, time and distance. the impersonal nature of computer mediated communication leading to a feeling of isolation in both the student and the teacher. broadening access to higher education to those who, for a variety of reasons including cost, employment and family responsibilities, and where they live, cannot attend classes at a set time or place. the cost in human and financial resources in establishing and maintaining online learning.[footnoteref:76] [76: for example, see j flood, ‘global challenges for legal education: competing for the world’s law students’ (2015) 24 nottingham l j 79 at 86.] providing an environment where students, and in particular mature aged students, feel they belong. the loss to the student of the ‘on-campus experience’.[footnoteref:77] [77: while everyone’s ‘campus experience’ is different, this includes such things as discussion on academic subjects both in and outside of class, involvement in law school and campus activities such as clubs and sporting events, and, through face-to-face interaction making new, and sometimes life-long, friends.] encouraging innovation in the way students learn, and in the way academics teach, through the use of an ever increasing array of educational tools. the negative impact online learning has on the traditional paradigm of the classroom and the academy. as the following discussion illustrates, most of the above-noted rewards and risks of online teaching have merit. whether the advantages of implementing a fully online degree outweigh the disadvantages depends on a number of factors, perhaps the most important being the law school’s physical location. generally, at least in australia at this early stage of the development of online legal education, law schools located in regional centres have more to gain from implementing an online degree program than established law schools in major cities. in this assessment of the rewards and risks of online legal education, it is important to note that the authors of this article cannot be described as either ‘enthusiasts’ or ‘naysayers’ when it comes to online legal education. according to rosenberg, ‘enthusiasts’ are “true believers in technology, and they are certain the future has arrived with online classes, programs, and universities that promise, and deliver, a cure for much of what ails the modern education enterprise”.[footnoteref:78] ‘naysayers’, by contrast, are “sceptical of any technology that interferes with face-to-face human interaction, and they worry about the danger of online learning”.[footnoteref:79] [78: j rosenberg, ‘confronting cliches in online instruction: using a hybrid model to teach lawyering skills’ (2008-2009) 12 smu sci & tech l rev 19 at 20.] [79: j rosenberg, ‘confronting cliches in online instruction: using a hybrid model to teach lawyering skills’ (2008-2009) 12 smu sci & tech l rev 19 at 20.] it is the authors’ view that greater use of technology in legal education is inevitable,[footnoteref:80] but like gutenberg’s printing ‘revolution’, the realisation of the rewards of online learning will be more of an evolution than a revolution. in particular, unless the movement to online learning is carefully managed, it simply will mimic online the standard, traditional, practices that have characterised the face-to-face teaching it replaced.[footnoteref:81] maharg and muntjewerff describe this as ‘profoundly paradoxical’ because “technology is used by an institution to avoid change by allowing the institution to appear to embrace change through the introduction of new technology”.[footnoteref:82] given the movement of courses online, the ability to challenge the dominant paradigm then becomes more difficult.[footnoteref:83] [80: in this we agree with binford who noted that “the emerging omnipresence of digital technologies in legal education is inescapable”: w w binford, ‘envisioning a twenty-first century legal education’ (2013) 43 wash u j l & policy 157 at 158. see also e noam, ‘electronics and the future of law schools’ (2008) 17 j contemp legal issues 51 at 63.] [81: p maharg, a muntjewerff, ‘through a screen darkly: electronic legal education in europe’ europe’ (2002) 36 law teacher 307 at 311.] [82: p maharg, a muntjewerff, ‘through a screen darkly: electronic legal education in europe’ europe’ (2002) 36 law teacher 307 at 311.] [83: p maharg, a muntjewerff, ‘through a screen darkly: electronic legal education in europe’ europe’ (2002) 36 law teacher 307 at 311.] institutions are not the only catalysts of such a paradox. legal academics may either consciously, or unwittingly, transfer online, and teach, units in the same way such units were taught face-to-face; particularly if the online learning software allows for synchronous delivery. for example, an expository approach may be adopted where content is transmitted through digital devices. lecturers upload online course materials – for example, links to case law and journal articles, etc – and present lectures synchronously through the online platform. this results in little control being vested in the student. student’s simply work their way through course materials in a set sequence, much as they did in a traditional face-to-face lecture.[footnoteref:84] such an approach can be contrasted with interactive learning where students work together, either synchronously or asynchronously, through group learning activities to explore information and solve problems.[footnoteref:85] for example, in the indigenous justice stream of cdu’s clinical unit, discussed below, students working on a tort class action collaborated synchronously in a wiki to draft documents, and communicated using both the text and chat functions in blackboard collaborate. [84: evaluation of evidence-based practices in online learning: a meta-analysis and review of online learning studies (us department of education office of planning, evaluation, and policy development policy and program studies service, 2010) at 4-5.] [85: evaluation of evidence-based practices in online learning: a meta-analysis and review of online learning studies (us department of education office of planning, evaluation, and policy development policy and program studies service, 2010) at 4-5.] adopting a traditional approach to teaching may be the result of inadequate training in online course design,[footnoteref:86] or simply a desire to take the least arduous path to achieve an outcome (teaching) which, in many institutions, is still not valued as highly as other academic activities; in particular research. whatever the cause, such an outcome will not result in the ‘cure’ to the pitfalls of traditional teaching practices envisioned by the enthusiasts. [86: as flood, writing in 2015, noted, “law faculty have not fully embraced the varieties of e-learning available to them nor have they been trained in their use”: j flood, ‘global challenges for legal education: competing for the world’s law students’ (2015) 24 nottingham l j 79 at 86.] further, by definition undertaking a law degree fully online will not result in a student obtaining a ‘campus experience’. many law students, however, will have already had an on-campus experience in a prior undergraduate degree. this is particularly the case in jurisdictions, such as canada and the united states, where the first degree in law is preceded by an undergraduate degree in another discipline. in addition, for mature age students, which make up a significant percentage of those undertaking fully online law degrees, having an on-campus experience may not be as important as it is to a school leaver[footnoteref:87] entering university for the first time. at cdu, for example, of the 855 law students enrolled in cdu’s law degree program in 2015,[footnoteref:88] 71.35% were 25 years or over. of the 28.65% of law students under 25 years, only 3.16% enrolled as school leavers.[footnoteref:89] [87: ‘school leaver’, as that term is used at cdu, means a commencing student whose highest educational attainment before commencement of their course enrolment was a completed final year of secondary education in the academic year or two years prior.] [88: of the total of 855 students, 302 (41.29%) studied full-time and 502 (58.71%) studied part-time.] [89: in almost all australian law schools, students can commence their law degree program immediately after completing their secondary education. the exception is melbourne university law school, which offers only a jd degree taught at a graduate level.] these numbers compare to at least one other australian regional university offering online law degree programs. while the data is somewhat dated, collins noted that in 2008 that only 32% of the university of southern queensland students were under 25 years of age, and 70% of students enrolled in the law degree program studied in a distance education mode.[footnoteref:90] it appears that a similar trend is evident in at least one online law school in the united states, concord law school. cahak notes that, [90: see p collins, ‘inclusive team assessment of off-campus and on-campus first year law students using instantaneous communication technology’ (2010) 44 law teacher 309 at 312. ] [a]lthough nearly all applicants to brick-and-mortar law schools [in the united states] are under the age of thirty, the average concord student is forty-three years old. furthermore, 40% of concord’s student body possess a previous graduate degree.[footnoteref:91] [91: a cahak, ‘beyond brick-and-mortar: how (cautiously) embracing internet law schools can help bridge the legal access gap’ [2012] u ill j l tech & policy 495 at 502. as has been noted above, students in the united states cannot enrol in a law degree without a prior degree in another discipline, therefore, the age of law students is generally higher than in australia.] finally, given that “the lives of our students are inextricably linked with technology”,[footnoteref:92] the ‘on-campus experience’ many, particularly older, commentators envision is very different from the actual experience of our students. we are reminded of a café sign one of the authors saw in bali which read: “no, we do not have wifi. try talking to each other.” those undertaking an online law degree generally have other priorities, including where they live, cost, work and family commitments, and desire for flexibility in the way they study, which outweigh the need to study on-campus. [92: j rosenberg, ‘confronting cliches in online instruction: using a hybrid model to teach lawyering skills’ (2008-2009) 12 smu sci & tech l rev 19 at 82.] feelings of isolation are perhaps the greatest risk of online learning.[footnoteref:93] computer mediated communication, be it audio, visual or written, is not the same as communicating face-to-face. it is generally acknowledged that non-verbal communication, consisting of a person’s appearances, movements, expressions and body language, makes up a significant percentage of our communication.[footnoteref:94] while the use of audio and visual conferencing facilities available through online systems software can pick up some of the non-verbal cues, many are missed. it can be anticipated that the software will continue to improve, however, we are not yet at the stage where such software can duplicate the face-to-face experience.[footnoteref:95] [93: not all would agree with that online education can be an isolating experience. for example see, e fredericksen, ‘is online education good or bad? and is this really the right question?’ (the conversation, 4 february 2015): https://theconversation.com/is-online-education-good-or-bad-and-is-this-really-the-right-question-35949 (accessed 11 october 2016).] [94: p peters, ‘gaining compliance through non-verbal communication’ (2007) 7 pepp disp resol l j 87. peters, relying on the studies cited in fn 1 of her article, maintains that such non-verbal communication constitutes 55% of our communication.] [95: for an interesting discussion of real as compared to virtual spaces, see l gibbons, ‘law and the emotive avatar’ (2009) 11 vand j ent & tech l 899. for a discussion of the use of non-verbal communication in the courtroom, see l mccrimmon, i maxwell, ‘teaching trial advocacy: inviting the thespian into blackstone’s tower’ (1999) 33 law teacher 31.] further, it goes without saying that sitting alone in front of a computer is a very different experience to physically attending (or teaching) a class full of one’s peers (or students). in the virtual classroom, interaction tends to be more stilted, although again advances in technology will continue to narrow the gap between online and face-to-face communication. in particular, continued advancements in the integration of audio, video, whiteboard and chat facilities in online educational software will improve the students’ learning experience. those teaching online units need to think creatively about how to minimise the feelings of isolation that will arise from learning online. this may involve a complete re-conceptualisation of what learning tasks and activities constitute an online classroom experience. in particular, an interactive, rather than an expository, framework for online learning should be adopted. for example, increasing use of student collaboration and teamwork involving high levels of peer to peer communication,[footnoteref:96] increasingly sophisticated virtual learning environments,[footnoteref:97] and interactive simulator programs,[footnoteref:98] should become standard components of a well-designed online unit.[footnoteref:99] the use of such tools and teaching methods will help to alleviate, but not eradicate, feelings of isolation. [96: j flood, ‘global challenges for legal education: competing for the world’s law students’ (2015) 24 nottingham l j 79 at 87. for a discussion of the use of teamwork in an online law unit, see p collins, ‘inclusive team assessment of off-campus and on-campus first year law students using instantaneous communication technology’ (2010) 44 law teacher 309.] [97: for example, see p mckellar, p maharg, ‘virtual learning environments: the alternative to the box under the bed’ (2005) 39 law teacher 43.] [98: e noam, ‘electronics and the future of law schools’ (2008) 17 j contemp legal issues 51 at 59-60.] [99: see also c dunham, s friedland, ‘portable learning for the 21st century law school: designing a new pedagogy for the modern global context’ (2009) 26 j marshall j computer & info l 371.] admittedly, such methods and tools are not the exclusive purview of online instruction. in the latter part of the twentieth century, such methods and tools have been used increasingly by australian legal educators teaching on-campus students.[footnoteref:100] this trend has continued, however, as kift noted in 2006, “the pace of change from the traditional model … has been glacially slow”.[footnoteref:101] this observation continues to resonate a decade later. [100: the latter part of the twentieth century in australia saw the advent of alta law teaching workshop (in 1988), and the publication of influential texts on learning in higher education; the two most influential being: m le brun, r johnstone, the quiet revolution (the law book company, 1994), and p ramsden, learning to teach in higher education (routledge, 1992).] [101: s kift, ‘my law school – then and now’ (2006) 9 newcastle l rev 1 at 10.] there is a cost in human and financial resources in establishing and maintaining online learning, however, to some extent this cost is inevitable in the digital age. even law schools which do not offer online degrees have to invest a significant amount in the infrastructure of online learning – computers, fast internet connection, access to online research databases, and, of course, the technical expertise required to maintain such equipment. further, increasingly law schools are implementing online learning software to facilitate staff/student interaction outside of on-campus lectures and tutorials, provide an online space for students to interact, and to facilitate the writing and submission of written work. on the ‘rewards’ side, however, it must be noted that there is a cost-saving to students who undertake their studies online. in australia, funding rates for australian government supported places do not differentiate between degrees taught online and degrees taught on campus. this means that the cost of the degree program generally will be the same regardless of the mode in which the degree is taught. as has been noted above, however, for students living in remote, rural and regional centres there are inherent cost savings in not having to move to a larger metropolitan centre to attend university; which could include, for example, the cost of moving, renting accommodation and transportation. further, for students with mobility issues or with child care responsibilities, it is often more cost effective to stay at home while completing their degree, thereby avoiding transportation and child-care expenses. finally, for those in full-time employment, undertaking a degree online provides the flexibility to complete the degree program without taking time off work to attend on-campus classes. for cdu, like many regional law schools in australia, investing in the establishment and maintenance of online learning infrastructure is critical to the law school’s survival. the closest major centre to darwin, where cdu law school is located, is adelaide, which is over 3,000 km away. in fact, darwin is closer to jakarta, indonesia (2,700km), than to any australian capital city. as at june 2015, the northern territory had population of 244,600,[footnoteref:102] of which over one-half (140,400) live in the greater darwin area.[footnoteref:103] the catchment area simply is too small to support an on-campus only law school, as evidenced by the fact that only 19% of cdu law students study on-campus or in mixed mode (both on-campus and online), and 81.05% study fully online. [102: abs, australian demographic statistics, jun 2015: www.abs.gov.au/ausstats/abs@.nsf/mf/3101.0 (accessed 27 september 2016).] [103: www.abs.gov.au/ausstats/abs@.nsf/mf/3218.0 (accessed 27 september 2016).] the size of the potential student catchment area, together with the large number of law schools per capita[footnoteref:104] and the fact that australian students tend not to travel interstate to attend university, means that law schools in regional centres have had to embrace online learning. for many, including cdu, it was more a question of survival than choice. [104: as has been noted above, australia has 36 law schools servicing a domestic population of 24 million people. by comparison, canada has just under 36 million people and only 18 law schools teaching common law. for population figures see: www.countrymeters.info (accessed 27 september 2016). ] the provision of an online law degree program vastly expanded cdu’s ability to attract students. as at 2015, the home location of cdu law students, as defined by the australian bureau of statistics’ australian standard geographical classification,[footnoteref:105] was as follows: [105: available at www.abs.gov.au (accessed 27 september 2016).] table 2: cdu law student enrolments by home location remoteness (2015) home location enrolment percentage major cities of australia 76.14% inner regional australia 9.71% outer regional australia 7.72% remote australia 3.39% very remote australia 0.82% international 2.22% total 100.00% leaving a law school’s economic survival to one side, the provision of an online law degree also allowed 22%, or approximately 190 students, from regional australia to undertake a law degree at cdu. considering that cdu is but one australian university offering a law degree fully online, the opportunity online education provides to those living in regional centres to undertake law studies is self-evident. the above discussion illustrates that it is fallacious to characterise the economic cost of establishing and maintaining online learning as a risk. the well-known american economist professor eli noam correctly noted in his 2008 article, ‘electronics and the future of law schools’, that: the question is not whether universities and law schools are important to society, to knowledge, or to their members – they surely are – but rather whether the economic foundation of the present system can be maintained and sustained when electronic communication provides alternatives. these are the drivers of change. research and teaching as activities will not be questioned – they will be more important than ever – but rather their present main instructional setting. we have come to equate legal education with traditional law schools. not much longer.[footnoteref:106] [106: e noam, ‘electronics and the future of law schools’ (2008) 17 j contemp legal issues 51 at 63. ] for a law school perched at the top of australia, the movement to an online law degree program was critical to the law school’s continued existence. if the northern territory wanted its only university to have a law school, an online degree program had to be included in its suite of offerings. online clinical legal education at cdu as has been noted above, cdu has developed a legal clinic elective for online and on-campus students. in this section, we discuss the development of the unit, the assessment regime, the unit learning outcomes and the experiences of students undertaking the program. approximately 75% of the students enrolled in the clinical unit have been, and in the future are expected to be, online students. the unit began as a placement program within an existing environmental law unit in 2014, and was expanded in 2015 to include placement opportunities in refugee law and indigenous justice, and with reprieve australia. in 2016, the pilot program became a fully accredited unit available to on-campus and online students entitled, somewhat unimaginatively, legal clinic. the unit aims to: · improve students’ practical legal skills such as client interviewing, research, communication and legal drafting; · instil in students a sense of professional responsibility and social justice; · promote student participation in community and professional engagement; · meet legal need amongst vulnerable and disadvantaged members of society in the northern territory and internationally; and · foster students’ understanding of the global nature of legal practice. enrolment in the unit is limited based on the number of placement sites and the capacity of the particular site to accommodate students. students apply for admission to the unit and are required to submit an expression of interest outlining the aspects of legal practice in which they are interested, and why they wish to undertake legal clinic. if accepted into the unit, students are allocated to an organisation that matches as closely as possible their interest in a particular area of practice. further, students are required to sign a confidentiality agreement in a form approved both by cdu and the placement site. the ethical issues surrounding client confidentiality also are explored in the first of the weekly legal skills workshops, discussed below. the host organisations include local darwin law firms undertaking pro bono work, local legal non-governmental organisations (‘ngos’), community legal centres interstate and international organisations involved in pro bono legal assistance. both online and internal students are accommodated at the placement site and, as is discussed below, online students have been accommodated in all but one placement site. the streams, and the organisations that took part in the program in 2015, are outlined below, together with a description of how online students participated in the program. these streams constitute the legal clinic unit being offered in the first semester of 2016. environmental law stream students have been placed with one of two organisations: 1. the legal response initiative, which is an international pro bono organisation that provides advice to developing countries on climate change obligations under the united nations framework on climate change and working groups associated with the climate change convention; and 2. the environment defenders office of the northern territory, which is a northern territory based community legal centre specialising in public interest environmental matters and access to justice.  online students placed in both organisations communicated with their supervising lawyer via skype, email and telephone.  documents were shared via email in accordance with the site’s policies regarding client confidentiality and secured document transfer, and online resources were used for research purposes.  within the environment defenders office, students had the opportunity to sit in on a client interview by phone (with the client’s permission). refugee law stream students were placed with a local darwin law firm within the firm’s pro bono refugee law program.  the placement site accommodated one online student who was partnered with a local student. the students undertook research on a current case being handled by the firm, and observed the supervising lawyer in court. the online student attended court hearings online via the federal court’s video-link system. the local, but not the online, student also observed client interviews. internship with reprieve australia this placement site accommodated one online student who took part in researching and drafting a submission to the joint standing committee on foreign affairs and trade on the topic of australia's advocacy internationally for abolition of the death penalty. the student was supervised by a member of reprieve australia, and a cdu academic with experience in death penalty cases. the student’s work reflected as closely as possible international legal practice involving the drafting of policy based reports and submissions.  indigenous justice stream the indigenous justice stream had three components: 1. a placement with a darwin law firm acting on behalf of indigenous claimants in a tort class action relating to the sexual abuse of children while resident at a children’s home in darwin from 1947-1981. darwin based and online students carried out legal research into both the substantive law relating to the abuse, and the procedural issues related to the running of a class action. they also attended client interviews, took witness statements, drafted documents and accessed physical resources close to their home location such as government archival records.  online students participated in interviews and meetings using blackboard collaborate and telephone. the supervising lawyers also met face to face with online students if the lawyers had occasion to travel to where the students were living. 2. an indigenous justice and exoneration project which focused on freeing innocent persons who had been wrongly convicted.  students, working under the supervision of a lawyer based in the state of tasmania, researched relevant legal issues pertaining to an ongoing appeal for a conviction of murder and investigated whether there was any admissible new evidence. the students in this component also researched and produced for the united kingdom based advocates gateway[footnoteref:107] an advocacy toolkit pertaining to the effective participation of indigenous people in the justice system. students also produced policy documents and reports requested by the advocates gateway indigenous steering group. the placement simulated as far as is possible an international law firm as online students communicated with supervisors and each other in person, using blackboard collaborate, and by email.  all research was undertaken using online or digital resources. [107: the advocates gateway is a united kingdom based organisation set up to help address communication needs in the justice system. see www.theadvocatesgateway.org (accessed 16 february 2016).] 3. a placement at the north australian aboriginal justice agency (naaja),[footnoteref:108] in the local court bail section, where students were actively involved in assisting their supervising lawyer in seeking bail for disadvantaged indigenous clients. students interviewed clients and made contact with family members on behalf of clients. given the nature of the work done at the placement site, naaja requested that only darwin based students be placed with the organisation. [108: naaja is an aboriginal legal service which addressed the legal need of disadvantaged indigenous australians living in the northern part of the northern territory.] as with traditional externship placements, students were supervised by a lawyer within the organisations as well as by a cdu academic who met with the students, either face-to-face or online, regularly throughout the placement. the students’ placement experience also was supplemented by weekly legal skills workshops. such workshops were presented face-to-face for on-campus students and online using blackboard collaborate for external students. the workshops covered practical lawyering skills such as client interviewing, mediation, working with interpreters and legal research and writing skills.[footnoteref:109] professional responsibility issues such as legal professional privilege and maintaining client confidentiality were addressed, and the workshops also provided an opportunity for students to share with each other their experiences at various placement sites. [109: if a particular need was not covered in the workshop program, then additional skills workshops were scheduled. for example, the need for further skills training was identified often in the students’ reflective journals. ] assessment the assessment consisted of a reflective journal, worth 70% of the final mark, and an essay, worth 30%. the reflective journal was used to enable students to analyse critically how knowledge and skills acquired through the study of law related to the legal practice setting in which they were placed. in particular, students had the opportunity to reflect on how their legal knowledge and skills could be used to achieve social justice outcomes. the reflective journal also allowed students to reflect on their personal motivations for studying law, and their goals and career aspirations. finally, it provided students with a record of their personal and professional growth during the course of the placement, and, hopefully, equipped them with the skills to be a self-reflective professional. once the weekly entry in the students’ reflective journals were completed, they were submitted, either by email or through the submission function in blackboard collaborate, to the academic responsible for the stream. students received weekly feedback on their journal entries. further, the students’ well-being, skill development, placement experiences, and communications skills were monitored through their reflective journal entries.[footnoteref:110] [110: it is widely agreed that a reflective practice enhances learning, promotes wellbeing and psychological health and is useful for professional development for work and life. for example see j mcnamara, t cockburn, c campbell, good practice guide (bachelor of laws): reflective practice (australian learning and teaching council, 2011) at 11. ] that timely and relevant feedback enhances student learning and their learning experience is undisputed,[footnoteref:111] however, a reflective journal also assists students to understand the subject matter,[footnoteref:112] and develop their legal identity.[footnoteref:113] students had the opportunity to amend their journal entries after receiving feedback from the cdu academic responsible for the unit. this was critical as the purpose of the reflective journal was both for formative and summative assessment.[footnoteref:114] the revised journal was graded at the end of the semester with input from the supervisor at the placement site. [111: stuckey, r et al, best practices for legal education: a vision and a road map, (clinical legal education association, 2007) at 174-177.] [112: j mcnamara, t cockburn, c campbell, good practice guide (bachelor of laws): reflective practice (australian learning and teaching council, 2011) at 11] [113: l barron, ‘learning how to learn: carnegie’s third apprenticeship’ (2011) 18 clinical law review 101 at 101-103.] [114: for a discussion of formative and summative assessment see m le brun, r johnstone, the quiet revolution: improving student learning in law (law book co, 1994) at 181-182; j mcnamara, t cockburn, c campbell, good practice guide (bachelor of laws): reflective practice (australian learning and teaching council, 2011).] in addition to the reflective journal, the individual student’s well-being and experiences at the placement site was monitored in regular meetings between the student and the cdu supervising academic. these meetings took place either by phone, in person (if possible), by skype or through blackboard collaborate. the assessment rubric and ‘prompt’ questions for completing the reflective journal, adapted from burton and mcnamara’s article on assessing the skills of reflection,[footnoteref:115] were provided to students at the beginning of the semester. students also were given a guide which covered the purpose of reflective journals and instructions on how to complete the weekly entries. [115: k burton, j mcnamara, ‘assessing reflection skills in law using criterion-referenced assessment’. (2009) 19 legal ed rev (2009) 171 at 184. ] the second component of the assessment tasks used in the unit was an essay question. the essay questions were set in consultation with the students’ placement site and related to a piece of work that the student was expected to undertake during the placement. the essay question was designed to assist students to gain a better understanding of the concept of social justice, in addition to being of benefit to the placement site.[footnoteref:116] [116: for example, the question set in consultation with the legal response initiative was: “inequities in wealth and resources can lead to inequitable outcomes, particularly on the world negotiating stage. discuss a strategy developed and used under the united nations climate change framework that aims to address the inequities between negotiating states and evaluate whether it addresses an inequity meaningfully.” this related to the students’ specific research for the placement site, which concerned developing nations’ obligations and abilities to access funding under the united nations climate change framework.] feedback from the pilot unit at the conclusion of each semester, informal verbal feedback and formal written feedback was sought from the students, site supervisors, and cdu academics who participated in the program. of particular note was the difference in the students’ experience of the program. while it was anticipated that experiences would differ depending on whether the student was a local or online, such a difference was not reflected in the feedback. rather, student satisfaction was influenced by such factors as: the ability to work collaboratively with other students, whether online or local; the allocation and explanation of set tasks by site supervisors; and the receipt of timely feedback from site supervisors and academic advisors. in this regard, the feedback received was no different than what might be expected from an externship unit that did not accommodate online students.[footnoteref:117] [117: l ryan cole, l wortham, “learning from supervision’ (in l wortham, a scherr, n maurer, s brooks eds, learning from practice: a text for experiential legal education (west academic publishing, 2016)) at 33-34; s mcclellan, ‘externships for millennial generation law students: bridging the generation gap’ (2009) 15 clinical law rev 255 at 272-274, 276-278.] local and online students who were allocated a placement site as part of a student group, and given set roles within that group, reported the highest levels of satisfaction with the program. conversely, those students who were placed individually with an organisation, either locally or in an online externship, reported feeling isolated and unsure of their supervisors’ expectations. strategies used to address feelings of isolation included increased cdu academic monitoring of the students, and facilitating student discussion of their experiences at the placement site as part of the weekly workshops. as a result of these strategies, students reported decreased feelings of isolation, and increased feelings of being a part of a common endeavour. further, those students who were not placed at a site as part of a group also made efforts to continue contact with other students placed alone. finally, the students reported high levels of satisfaction with the primarily online communication methods, subject to timely feedback from supervisors. students living in rural and remote areas were particularly satisfied with online communication and online placements. supervisors generally were happy with the provision of online supervision, although the cdu staff responsible for the unit had to work closely with site supervisors to explain how the online platforms worked. some of the other initial issues that needed to be addressed included ensuring confidentiality, software compatibility, internet connectivity and scepticism arising from the supervision of students that the supervisor had never met in person. once the supervisor’s unfamiliarity with the technology was addressed, however, and the supervisor met the online student using the video-conferencing facilities, such initial reluctance was overcome.[footnoteref:118] [118: it should be noted that some organisations, such as the legal response initiative based in the united kingdom, did not have any concerns with supervising students remotely as such supervision was routinely done at that organisation. ] to take but one example, in the indigenous justice stream the supervising lawyer in the tort class action case took part in the first online blackboard collaborate workshop session with students. such participation demonstrated to the lawyer the capacity for synchronous engagement with students through the use of collaborate’s audio, video and chat facilities. subsequently, the lawyer was able to interact both synchronously and asynchronously with both local and online students using phone, email and collaborate. he also was able to monitor the work done by students, and the student-to-student interaction, on the smartsheet data entry system[footnoteref:119] used to organise the voluminous documents pertaining to the case. [119: for a discussion of the smartsheet data entry system, see: www.smartsheet.com (accessed 11 october 2016).] lessons learned and possible refinements while student feedback indicated that students generally were satisfied with their experience at the placement site even if they are unable to experience immediate interaction with clients, increasing opportunities for such real client interaction was one refinement that has been identified as a worthwhile goal by cdu staff involved in the various streams. consequently, ways to expand legal clinic to increase external students’ opportunities to interact with clients are being explored, including: · developing relationships with host organisations in other cities (especially those with significant external enrolments such as adelaide and melbourne); · offering external students the opportunity to travel to darwin (hopefully with a travel subsidy) to undertake intensive placement with a darwin host organisation;[footnoteref:120] and [120: research suggests that a blend of online and face-to-face instruction provides the most effective learning environment: evaluation of evidence-based practices in online learning: a meta-analysis and review of online learning studies (us department of education office of planning, evaluation, and policy development policy and program studies service, september 2010) at xviii.] · offering online (and internal) students the opportunity to work more closely with the courts. in this regard, judges of the northern territory local court in darwin have expressed interest in hosting both online and local students as quasi-associates on an intensive placement. this would give external students further opportunities for real-time interaction with both civil litigants and criminal defendants before the court. student workload is another aspect of the legal clinic unit currently under review. generally, over the 12 week semester, students are expected to devote 6-8 hours per week to placement site work, attend a two hour workshop each week, and complete both a 2000 word research essay and a 3000 word reflective journal. whatever the objective reality, there is a perception among students that the workload and time demands of the legal clinic are excessive compared to other elective units. while clinical units generally require a substantial commitment on the part of students, there is scope to address workload issues while still achieving the unit’s educational objectives. in particular, changes to the unit delivery structure under consideration include replacing the weekly workshops with an intensive weekend seminar at the beginning of each teaching semester. the intensive seminar would include the key content currently covered in the weekly workshops, together with simulated client interviews and other role plays to prepare students better for real client interaction. in addition to the intensive seminar, students would attend a fortnightly online meeting with the stream academic supervisor. in the meetings, experiences at the placement site could be discussed, and any issues with the placement identified. conclusion with advances in digital technology, the next major advance in the evolution of clinical legal education is upon us. in 2000, when envisioning the impact of technology on clinical legal education, martin barry, dubin and joy noted: improvements and cost reductions in distance learning and video conferencing technologies will provide greater opportunities for clinical work across local, state and national borders and permit more mult-school, multi-venue collaborations. this technology will be particularly useful in expanding externship offerings and increasingly their sophistication.[footnoteref:121] [121: m martin barry, j dubin, p joy, ‘clinical education for this millennium: the third wave’ (2001) 7 clinical l rev 1 at 53-54.] what was speculation in 2000 has now been realised, at least at cdu. online students undertaking cdu’s legal clinic in 2016 have the opportunity to work with darwin-based, national and international organisations in a wide variety of public interest placements. further, cdu clinicians, through their own networks and global networks such as gaje, can work with like-minded colleagues in asia and elsewhere to improve clinical offerings and maximise the rewards digital technologies provide. for clinicians dedicated to instilling in our students the skills, both practical and ethical, that they will need to practice law, the advent of digital technologies has indeed provided us with a gutenberg moment. through advances in communications technology, a placement site now can be located anywhere in the world. through advances in video technology, a student now can conduct an interview with a client located in another city, state or country. in the future it can be envisioned that, subject to local student practice rules, the provision of adequate supervision by site supervisors and the technical capability of individual courts, a student in a remote region of australia could appear in a court in any australian city. in australia, it can be anticipated that law schools situated in regional areas will pioneer the use of technology to change the way our students learn, and the way in which we as legal educators teach. the challenge for any law school incorporating technology into its clinical offerings is to ensure that the rewards are maximised and the inevitable risks minimised. in particular, great care must be taken to ensure that a student’s feelings of isolation, which is an inherent risk of online learning, are minimised. the greater use of technology in legal education is inevitable, and it makes sense to harness the benefits such technology provides to expand the scope and content of, and student participation in, a law school’s clinical offerings. while this article has focused on developments in australia, clinical legal education is a global movement and the inherent benefits of online clinical legal education are not defined by national borders. while each country faces unique challenges in terms of accreditation of online degrees, access to a fast and reliable network, and access to the resources necessary to implement online degree programs, it is our hope that cdu’s experience will assist others considering the implementation of online clinical opportunities for law students. how such a change is effected will be both a significant challenge, and an exciting opportunity, facing clinical legal educators in the twenty-first century. 79 ijcle vol 23 no 3 reviewed article: clinic, the university and society “our roots began in (south) africa[footnoteref:2]”: modelling law clinics to maximise social justice ends [2: *i am grateful to jobst bodenstein, james campbell, rosaan kruger and helen kruuse for their comments, advice and assistance with this article. with apologies to pharoah sanders (song title taken from message from home (verve, 1996)). ] donald nicolson*[footnoteref:3] [3: donald nicholson is professor of law and director of law clinic school of law, university of strathclyde, glasgow.] university of strathclyde, uk abstract this article explores the ways in which law clinics can be organised to maximise their impact on social justice in south africa. such impact can be both direct, in the form of the actual legal services offered to those in need, or indirect, in the form of encouraging law clinic students to commit to assisting those most in need of legal service after they graduate either through career choice or other forms of assistance. the article develops a decision-making matrix for clinic design around two dimensions, each with a number of variables. the first, “organisational” dimension relates to the way clinics are organised and run, and involves choices about whether: (1) clinics emphasise social justice or student learning; (2) student participation attracts academic credit or is extra-curricular; (3) participation is compulsory or optional; (4) clinics are managed and run by staff or students; and (5) there is one “omnibus” clinic structure covering all clinic activities or a “cluster” of discrete clinics conducting different activities. the second, “activities” dimension involves choices about whether services are: (1) specialist or generalist; (2) exclusively legal or “holistic”; (3) provided only by students or qualified legal professionals; (4) located in community neighbourhoods or on campus; (5) provided by students working “in-house” in a university clinic or in external placements; (6) designed to benefit the wider community rather than just the individuals directly served; and (7) designed to remedy existing problems or educate the public on their legal rights and duties. while not intending to set out a blueprint for existing law clinics, the article argues that, if south africans are motivated to enhance their impact on social justice and level of community engagement, they can learn much from the first law clinic to be established in south africa, at the university of cape town, which was entirely student-run, optional and solely focused on ensuring access to justice rather than educating students. drawing on his experience in adapting this model for use in scotland, the author looks at the advantages of combining the volunteerist and student-owned nature of this clinic with some formal teaching and staff involvement to maximize both the direct and indirect impact of clinics on social justice. 1. introduction twenty years after the advent of democracy in south africa, it is clear that many of the benefits which might have been expected to flow from the defeat of apartheid have yet to materialise. while the state, ngos and various elements of civil society will obviously play the biggest role in seeking to ensure social justice, university law clinics can play their part in increasing the number in society who are aware of and capable of enforcing their legal rights, thereby helping to equalise access to law and the benefits it may bring.[footnoteref:4] [4: for an overview of problems of access to justice in south africa, see david holness, ‘improving access to justice through compulsory student work at university law clinics’, 16 potchefstroom elec. l.j. 327, 332-33 (2013).] in the light of this role, this paper seeks to explore how best to design clinics to promote social justice and respond to what are regarded as the two[footnoteref:5] biggest challenges facing university law clinics in south africa (and indeed more widely), namely the precarious nature of funding, and the low academic status and employment conditions of clinical staff. [footnoteref:6] i will do so in terms of a decision-making matrix setting out the various choices about clinic organisation and activities which clinics need to consider when deciding how to operate. while i will orient the discussion towards exploring how law clinics can be designed to maximise the goal of social justice, there is, however, no reason why the matrix cannot be used in relation to other goals which clinics choose to pursue. [5: cf also neels swanepoel & inez bezuidenhout, ‘the institutionalisation of community service and community service learning at south african tertiary institutions: with specific reference to the role of the university law clinics’, 45 de jure 1 46, 55 (2012) (noting the limited time students have for clinical legal education).] [6: peggy maisel, ‘expanding and sustaining clinical legal education in developing countries: what we can learn from south africa’, 30 fordham int'l l.j. 374, 377, 388ff (2006-7), and on the second challenge: see also willem de klerk, ‘unity in diversity: reflections on clinical legal education in south africa’, 12 int'l j. clinical legal educ. 95, 99-101 (2007); philip f. iya, ‘addressing the challenges of research into clinical legal education within the context of the new south africa’, 112 s. african l.j. 265, 272-74 (1995).] in exploring how clinics can best be designed to serve social justice goals, i will draw upon my own clinic experiences. indeed, it was my involvement with uct [university of cape town] legal aid, which was entirely student-run and solely focused on ensuring access to justice, that inspired me to set up clinics along similar lines at the universities of bristol and strathclyde. admittedly, this model has been modified at the university of strathclyde law clinic (henceforth, uslc) in that i, as a full-time academic, direct the clinic, four part-time solicitors supervise cases, and an optional clinical llb[footnoteref:7] allows students to integrate their training and experiences, and reflection on both throughout the standard llb. nevertheless, the uslc still prioritises social justice and is run jointly by staff and students. it is this model which has been replicated by most law clinics in scotland – hence the title of this article – and on which i will draw as a possible example for south african law clinics motivated to expand their social justice mission. [7: see at n 47 below.] in doing so, i am very mindful of the dangers of suggesting solutions for a country in which i no longer live. [footnoteref:8] while i have some contact with south african law clinics (including as a visiting professor at rhodes university), i do not purport to be aware of all clinic activities pursued, nor their means of organisation, let alone the history and contextual factors affecting the choice of particular clinic models.[footnoteref:9] nor am i suggesting that south african law clinics have not made the best choices for promoting social justice. in many ways, they compare very favourably with other jurisdictions, and are certainly more developed and better funded than those in the united kingdom generally,[footnoteref:10] and particularly in scotland. instead, in order that the full implications of choices about clinic design for pursuing social justice may be appreciated, my aim is both to foreground such choices, some of which are often made unwittingly and many of which may have unforeseen knock-on effects for other aspects of clinic design and ultimately for their possible impact on social justice. in addition, i will suggest that clinics in south africa (and indeed more widely) might benefit from exploring some aspects of the first law clinic to be established in that country. [8: cf richard j. wilson, ‘beyond legal imperialism: us clinical legal education and the new law and development’, in the global clinical movement: educating lawyers for social justice (frank bloch ed., 2011) esp. 144.] [9: for recent comprehensive accounts, see maisel, note 4; willem de klerk, ‘university law clinics in south africa’, 122 s. african l.j. 929, (2005).] [10: de klerk, ibid, 932-35.] 2. law clinics and social justice before doing so, it is useful to start with an idea of the potential impact law clinics might have on social justice. if we adopt the oft-quoted definition of social justice by david mcquoid-mason, father of the south african clinical movement,[footnoteref:11] as involving “the fair distribution of health, housing, welfare, education and legal resources in society”,[footnoteref:12] it is clear that access to legal assistance is important both as an aspect of social justice itself, but also in helping members of the community to benefit from whatever means law provides to achieve other public goods. law clinics can most obviously play an important role in ensuring such access to justice, but, as we shall see, they can also engage in law reform activities, community legal projects and public legal education in order to help people gain the benefits provided by law and avoid the detriments or burdens that it may impose on them. [11: see his pioneering an outline of legal aid in south africa (butterworth, 1982).] [12: ‘teaching social justice to law students through community service’, in transforming south african universities – capacity building for historically black universities (philip f. iya, nasila s. rembe, & j. baloro eds., 1999) 89.] in addition to enhancing social justice in this direct manner, law clinics may also have an indirect effect by inspiring law students to go on to play some role in redressing social injustice after they graduate, whether through career choice, engaging in pro bono work or making donations, providing training or other forms of assistance to organisations which promote access to justice or social justice more widely.[footnoteref:13] thus, drawing on educational theory, many clinicians claim that student exposure to clients may cause “disorienting moments”[footnoteref:14] whereby their pre-existing assumptions about the world clash with their observation of social deprivation, unequal access to justice and substantive legal injustice, especially when repeated exposure reveals that these problems are endemic rather than exceptional.[footnoteref:15] according to adult learning theory,[footnoteref:16] learning from experience rather than abstract teaching is likely to make these lessons particularly profound. and, when the experience is that of someone in dire need and it is realised that they may have no other source of assistance, knowledge may be transformed into empathetic care. furthermore, aristotelian theories of moral development[footnoteref:17] teach that satisfaction at helping others (or regret at not being able to do so), particularly if accompanied by guided reflection on experience and the example of positive role models, may convert knowledge about social injustice and empathetic concern for its victims into an ongoing commitment to contribute to social justice. if so, given that this may translate into years of pro bono or financial assistance or even a career devoted to helping those most in need, the indirect role of law clinics in promoting social justice may in the long run be even more important than their direct role.[footnoteref:18] [13: for similar analyses of this dual function, see jon c. dubin, ‘clinical design for social justice imperatives’, 51 s.m.u.l. rev. 1461 (1997-8); lauren carasik, ‘justice in the balance: an evaluation of one clinic's ability to harmonize teaching practical skills, ethics and professionalism with a social justice mission’, 16 s. cal. rev. l. & soc. just. 23 (2006-7).] [14: fran quigley, ‘seizing the disorientating moment: adult learning theory and the teaching of social justice in law school clinics’, 2 clinical l. rev. 37 (1995).] [15: e.g. jane harris aiken, ‘striving to teach “justice, fairness, and morality” 4 clinical l. rev. 1 (1997); stephen wizner, beyond skills training’, 7 clinical l. rev. 327, 327-8 (2000-1); donald nicolson, ‘education, education, education: legal, moral and clinical’, 42 law tchr. 145 (2008); juliet m. brodie, ‘little cases on the middle ground: teaching social justice lawyering in neighborhood-based community lawyering clinics’, 15 clinical l. rev. 333, 379-83 (2008-9).] [16: quigley, note 12; frank bloch, ‘the andragogical basis of clinical legal education’, 35 vanderbilt l. rev. 321 (1982).] [17: see e.g. r.s. peters, moral development and moral education (1981), ch. 2; joel kupperman, character (1991); hubert. l. dreyfus & stuart. e. dreyfus, ‘what is morality? a phenomenological account of the development of ethical expertise’ in david. rasmussen (ed), universalism versus communitarianism: contemporary debates in ethics (1990).] [18: steven wizner & jane aiken, ‘teaching and doing: the role of law school clinics in enhancing access to justice’, 73 fordham l. rev. 997, 1005 (2004).] on the other hand, one can at least be certain when a clinic has enhanced social justice through providing legal services. by contrast, despite qualitative research supporting predictions about the impact of clinic on students’ knowledge of social injustice, the development of empathy and a commitment to remedy social injustice, [footnoteref:19] and despite numerous anecdotal accounts from clinicians[footnoteref:20] and students,[footnoteref:21] only a few more quantitative empirical studies show clinics inspiring students to provide pro bono legal assistance or embark on a career which serves social justice.[footnoteref:22] moreover, these studies were rather small-scale, and only suggestive in not controlling for students’ predispositions before entry to the clinic and/or tracking students into practice. indeed, other more extensive studies show little or no impact by clinics or other law school programmes involving voluntary legal services[footnoteref:23] or at best that they sustain rather than develop a commitment to altruistic service.[footnoteref:24] [19: donald nicolson, ‘learning in justice: ethical education in an extra-curricular law clinic’, in the ethics project in legal education (michael robertson, et al, eds., 2010), 171.] [20: see e.g. quigley, note 12; jobst bodenstein, ‘access to legal aid in rural south africa: in seeking a coordinated approach’, obiter 304, 310 (2005) katherine r. kruse, ‘biting off what they can chew: strategies for involving students in problem-solving beyond individual client representation’, 8 clinical l. rev. 405, 443 (2001-2).] [21: see e.g. frank trinity, ‘homelessness and the use of reality to enrich the experience of law school’, 40 clev. st. l. rev. 513, 514 (1992); donald nicolson, ‘legal education, ethics and access to justice: forging warriors for justice in a neo-liberal world’, 22 int'l j. legal prof. 1 (2015).] [22: sally maresh, ‘the impact of clinical legal education on decisions of law students to practice public interest law’, in educating for justice: social values and legal education (jeremy cooper & louise g. trubek eds., 1997); josephine palermo & adrian evans, ‘almost there: empirical insights into clinical method and ethics courses in climbing the hill towards lawyers' professionalism’, 17 griffith l. rev. 252 (2008); deborah a. schmedemann, ‘priming for pro bono publico: the impact of the law school on pro bono participation in practice’, in private lawyers and the public interest: the evolving role of pro bono in the legal profession (robert granfield & lynn mather eds., 2009).] [23: robert granfield, ‘institutionalizing public service in law school: results on the impact of mandatory pro bono programs’, 54 buff. l. rev. 1355 (2007) (though see at 1379 and 1399-1341 noting that university pro bono experience influenced 34% of those surveyed in their career choice and had at least a marginal impact on the motivation to continue once in practice); deborah l. rhode, pro bono in principle and in practice: public service and the professions (2005), ch. 7 (though see at 156 noting that 22% were encouraged by their law school experience to engage in pro bono after graduation, but 19% were discouraged from doing so).] [24: rebecca sandefur & jeffrey selbin, ‘the clinic effect’, 16 clinical l. rev. 57 (2009).] at the same time, however, even if clinics only sustain pre-existing commitments to serve social justice, such a role is in itself incredibly valuable given that studies show that legal education tends to have negative impact on student altruism and commitment to careers promoting social justice. while this research largely emanates from the us,[footnoteref:25] the apparently similar nature of legal education in south africa[footnoteref:26] with its emphasis on 'thinking like a lawyer', the marginalisation of issues of ethics and justice, the dominance of law subjects devoted to the law of the rich and the dominant image of lawyers as advocates or corporate lawyers is likely to lead to a similar dampening of students’ enthusiasm for using their legal skills for the least privileged in society.[footnoteref:27] certainly, such an education is not best calculated to inspire in students a desire to do so. [25: summarised in robert granfield & philip veliz, ‘good lawyering and lawyering for the good: lawyers’ reflections on mandatory pro bono in law school’, in granfield & mather (eds.), note 20, 53-4, but see also avrom sherr & julian webb, ‘law students, the market and socialisation: do we make them turn to the city’, 16 j. l. & soc'y 225 (1989).] [26: see eg bodenstein, note 18; lesley greenbaum, ‘experiencing the south african undergraduate law curriculum’, 7 de jure 104 (2012); joel m. modiri, ‘transformation, tension and transgression: reflections on the culture and ideology of south african legal education’, 24 stellenbosch l. rev. 455 (2013).] [27: see generally, on this “hidden” “ latent” or “implicit” curriculum”, nicolson, note 13.] 3. a matrix for modelling clinics if law clinic students can play both a direct (and tangible) and indirect (but less tangible) role in contributing to social justice, the question then becomes how to maximise these two as we shall see, often competing means of doing so. the matrix which i will use to answer this question involves two broad dimensions, each with a number of different variables. the first dimension relates to the way clinics are organised and run, and the second to the activities it conducts.[footnoteref:28] and, while i will discuss the different variables as involving binary oppositions, it must be emphasised that in reality the design and activities of the vast majority of clinics fall somewhere on a spectrum between the various opposing poles. moreover, at least in relation to clinics which pursue multiple activities, it is possible to have different emphases on one or other side of the binary opposition in relation to different activities.[footnoteref:29] [28: for a similar discussion of some of the variables under the second dimension, see frank bloch & mary anne noone, ‘legal aid origins of clinical legal education’, in bloch (ed.), note 6.] [29: e.g. public legal education might be conducted on a voluntary basis but case work attract academic credit.] 3.1 clinic organisation the organisational dimension of the decision-making matrix involves choices about five variables, namely whether: (1) clinics emphasise social justice or student learning; (2) student participation attracts academic credit or is extra-curricular; (3) participation is compulsory or optional; (4) clinics are managed and run by staff or students; and (5) there is one “omnibus” clinic structure covering all clinic activities or a “cluster” of discrete clinics conducting different activities. while the organisational dimension is largely about how clinics are organised and run, much of this will be affected by their goals and hence i will start by exploring those aspects of clinic organisation which flow from choice of goals. 3.1.1 social justice versus educational orientation in addition to the main goals of social justice and student education, many south african law clinics seek to assist in the transformation of the legal profession by employing candidate attorneys from previous disadvantaged groups.[footnoteref:30] given that these posts are largely funded by the state and the profession itself,[footnoteref:31] and can be aligned with both social justice and educational goals, i shall concentrate on the question of which of the latter two goals should be prioritised. [30: see e.g. de klerk, note 7, 944-45; maisel, note 4, 414; m.a. du plessis, ‘university law clinics meeting particular student and community needs: a south african perspective’, 17 griffith l. rev. 121, 126 (2008).] [31: maisel, ibid, 397.] social justice and student education are not, of course, mutually exclusive alternatives. students serving the community cannot help but learn about law, the way it operates and its justice, and about legal practice and legal ethics. moreover, in order to be able to effectively serve the community, clinic students need to be taught legal skills and, in my view, also legal ethics;[footnoteref:32] neither of which currently form part of the typical south african law school curriculum. conversely, when students learn about law, justice, legal practice, etc. in the context of a live-client law clinic, they are likely be serving members of the community most in need of legal services, not least because those who can afford a lawyer are unlikely to seek help from students.[footnoteref:33] [32: see donald nicolson, ‘problematizing competence in clinical legal education: what do we mean by competence and how do we assess non-skill competencies?’ 23 int'l j. clinical legal educ. 66] [33: whereas eo clinics can choose to serve anyone who wants to use their services, sjo clinics are likely to want to confine services to those most in need and hence may means-test potential clients and/or refer them to other available services in order to optimise their social justice impact.] but, whereas all clinics inevitably serve both social justice and educational goals, choices must unavoidably be made as to which to prioritise. by contrast to many, if not most, south african law clinicians,[footnoteref:34] i have long believed[footnoteref:35] that the former should take precedence over the latter. otherwise, they risk being seen as practising law on the poor rather than for the poor,[footnoteref:36] and implicitly conveying to students that their interests now educational, later commercial trump those of clients and the community.[footnoteref:37] it is true that universities are most obviously associated with educating students. however, they have also long sought to serve the general public through research and more recently by “knowledge exchange or transfer” whereby they share learning, ideas and experience with the community, and by other forms of community engagement.[footnoteref:38] this vision has particular resonance in south africa given the community’s desperate need for the knowledge and skills of its universities and indeed has now been explicitly adopted by south african universities.[footnoteref:39] moreover, it can be argued that those who benefit from the public investment in educating lawyers and maintaining a legal system which guarantees their often affluent livelihood have a duty to ensure that legal services are available to all in society rather than those fortunate enough to pay high lawyer fees or who qualify for legal aid. for law graduates, this involves contributing in some way to enhancing access to justice and for law schools it involves ensuring that law clinics maximise both the direct and indirect role they can play in enhancing access to justice and social justice more generally. producing highly skilled and knowledgeable lawyers who go on to prioritise their own needs as lawyers over those who need them most is not just a wasted opportunity for law clinics, but is also likely to cause further social injustice when they defend the interests of the most powerful in society to the detriment of the most vulnerable in society. [34: e.g. de klerk, note 4, esp 98; willem de klerk & shaheda mahomed, ’specialisation at a university law clinic: the wits experience’, 39 de jure 2 306 (2006); m.a. du plessis, ‘closing the gap between the needs of the students and the community they serve’ 33 j. for jurid. sci. 1, 14 (2008); m.a. du plessis & d. dass, ‘defining the role of the university law clinician’, 130 s. african l.j. 2 390 (2013), esp. at 397 (claiming that this is the general view), but see contra philip f. iya, ‘fighting africa’s poverty and ignorance through clinical legal education: shared experiences with new initiatives for the 21st century’, 1 int'l j. clinical legal educ. 13 (2000).] [35: see above n 13; donald nicolson, ‘legal education or community service? the extra-curricular student law clinic’ (2006) web journal of current legal issues http://www.bailii.org/uk/other/journals/webjcli/2006/issue3/nicolson3.html (last visited june. 22, 2016)] [36: margaret thornton, privatising the public university: the case of law (2010) 83.] [37: see also wizner & aiken, note 16, 1007; kruse, note 18, 423-44; sameer m. ashar, ‘law clinics and collective mobilization’, 14 clinical l. rev. 355, 387 (2007-8).] [38: see thornton, note 34, ch. 5.] [39: see e.g. louise africa, ‘ipf and social justice initiatives in south africa’, in leadership for social justice in higher education (terance w. bigalke & mary s. zurbuchen eds., 2014).] if this preference for a social justice-oriented (henceforth sjo) over an educationally-oriented (eo) clinic is accepted, then it would seem obvious that such clinics will better serve social justice. certainly, this is true of the extent of services offered. [footnoteref:40] thus, in eo clinics the need for opportunities for regular reflection, the educational benefits of allowing students to make their own mistakes in their own time and the use of supervisor time to bring out the educational lessons of experience in real time mean that fewer cases are taken on and staff-student ratios are far lower than in sjo clinics. for instance, compared to staff-student ratios of between 1:6 to 1:10 in the us,[footnoteref:41] the suggested 1:12 in the uk,[footnoteref:42] and an average of between 1:20-1:30 in south africa,[footnoteref:43] the sulc has a ratio of around 1:150! where supervision does take place, it is on a “final product” basis in terms of which students exercise considerable autonomy in their research but need to gain approval for letters, pleadings, etc, and experienced students play an important role in mentoring less experienced students and monitoring their work.[footnoteref:44] in this way, relatively meagre resources (around £100,000 a year) stretch far and there is the potential for more generous resources to stretch even further to maximise community service. [40: a fact realised by some students despite benefitting from an eo clinic (kruse, n. 18, 443-44); cf. also jeff giddings, ‘contemplating the future of clinical legal education’, 17 griffith l. rev. 1, 17-19 (2008).] [41: marjorie anne mcdiarmid, ‘what’s going on down there in the basement: in-house clinics expand their beachhead’, 35 n. y. l. sch. l. rev. 239, 254-55 (1990).] [42: the clinical legal education organisation, model standards in clinical legal education live-client clinics (1995), reproduced in hugh brayne, nigel duncan, & richard grimes, clinical legal education: active learning in your law school (1998).] [43: de klerk, note 7, 949 n.141.] [44: a practice also adopted in yale: wizner, note 13, 335-38 (describing its “tiered system”).] there are downsides to such a high volume clinic, most obviously in terms of the possibility that, even if students are given extensive training, the quantity of legal services is bought at the expense of quality. but if this is a concern – and here it can be noted that client goals are at least partially met in over 90% of uslc cases which go beyond advice – the balance between quantity and quality can be adjusted by providing for more hands-on supervision without making the students’ educational interests predominant. however, less obviously, the indirect means of serving social justice may be undermined by the absence of opportunities for students to reflect, and read related literature, on how law operates in practice, problems of access to justice and social injustice, and the lawyer’s responsibility for these problems.[footnoteref:45] thus, it is noticeable that, where in-house clinics and wider pro bono programmes involving externships have been shown to have a positive effect on students’ commitment to enhancing access to justice, they have been combined with courses which provide for such educational opportunities. [footnoteref:46] [45: cynthia f. adcock, ‘beyond externships and clinics: integrating access to justice education into the curriculum’, 62 j. legal educ. 566, 573-74 (2013).] [46: see nicolson, note 17; palermo & evans, note 20, schmedemann, note 20.] in other words, combining a sjo clinic with an educational programme may ensure the best of both worlds,[footnoteref:47] as long as the programme focuses primarily on making students “justice ready” [footnoteref:48] through exposing them to issues of social justice and the moral obligations of lawyers to remedy injustice rather than just practice ready through skills training and substantive law teaching. thus, uslc students can take an optional ethics and justice class in their final year in which they reflect on their prior and current clinic activities in the light of reading and discussion on legal ethics and access to justice, or they can opt to take a clinical llb which integrates their clinic training and activities into the standard llb and requires them to reflect inter alia on ethics and justice in journals and clinical essays throughout the studies.[footnoteref:49] indeed, even if students are directly taught skills and legal knowledge, they will not necessarily see clinic work as merely a means to their educational and vocational needs if they are also taught, their tutors model, and the prevailing clinic ethos emphasises that student needs can never take precedence over those who are served by the clinic. thus, cases and other clinical work should be chosen not for their value in teaching skills and substantive law, but in terms of client and community needs or at least for the lessons they might bring about the dire state of access to justice and social injustice as well as the role of the legal profession and law in relation to both problems. [47: see nicolson, note 5.] [48: jane h. aiken, ‘the clinical mission of justice readiness’, 32 b.c. j. l. & soc. just. 231 (2012). see further wizner & aiken, note 16, 1008-10 on the importance of guided reflection to bring out the lessons of experience in delivering social justice, and brodie, note 13, 365-67; jane h. aiken, ‘provocateurs for justice’ (2000-1) 7 clinical l. rev. 287 on how to exploit clinical experiences for social justice learning.] [49: for details, see nicolson, note 30, 81ff note 5, and donald nicolson, ‘calling, character and clinical legal education: a cradle to grave approach to inculcating a love for justice’, 16 legal ethics 36, 51-55 (2013).] 3.1.2. curricular versus extra-curricular activity the second organisational variable involves whether clinic students undertake work for academic credit[footnoteref:50] or on an extra-curricular basis. prima facie there seems to be a natural fit, between curricular and eo clinics, on the one hand, and between extra-curricular and sjo clinics, on the other hand. however, while extra-curricular eo clinics seems unlikely,[footnoteref:51] as the ulsc and other clinics show,[footnoteref:52] it is possible to provide academic credit for work in a sjo clinic without undermining its social justice mission. what is more important than the formal question of whether students obtain credit or not, is whether the prevailing ethos and operational decision-making on matters like the number and types of cases undertaken prioritise serving the community rather than providing students with skills and knowledge. moreover, given that the award of marks for a particular activity implicitly valorises that activity, it is important that academic credit is provided as much for commitment to community service and/or reflection on aspects of justice than for technical performance. [50: as argued for by holness, note 2, 342.] [51: thus, if clinical experience is being used for learning experience, it seems logical for this to attract credit. on other hand, some activities within an eo clinic can be done without credit, such as getting students to act as receptionists before they can take a clinical class (as in some uk clinics).] [52: see jonel newman, ‘re-conceptualizing poverty law clinical curriculum and legal services practice: the need for generalists’, 34 fordham urb. l.j. 1303 (2007); malcolm m. combe, ‘selling intra-curricular clinical legal education’, 48 law tchr. 281 (2014).] in other words, while a social justice orientation usually coincides with extra-curricular clinics, there is no necessary connection between volunteerism and prioritising community service over educational goals. indeed, given that students are less likely to engage in the reading and reflection that is necessary to maximise their learning about social injustice and the lawyer’s role in redressing injustice if they do not gain academic credit for doing so, there is a positive argument for at least some level of curricular activity in sjo clinics. on the other hand, if all activity is curricular the number of students involved and resulting level of community service will be reduced. like the close supervision of cases designed to enhance the development of skills and legal knowledge, running courses and evaluating student performance are time-consuming activities. moreover, not being tied to a particular class and being involved for longer than the usual curricular experience of one semester or at most a year, students in extra-curricular clinics may assist the community over a much longer period (up to four years in south africa and five years in scotland). depending on how much time students are prepared to devote to their clinic work in addition to their formal classes[footnoteref:53] and the need to engage in part-time work to fund their studies,[footnoteref:54] this may allow for overall greater community service than the more intensive experience of students involved in clinical classes.[footnoteref:55] but even if overall levels of activity are roughly equivalent, i am inclined to think that the impact on student attitudes is likely to be more profound if students have as much time as is necessary to reflect on their experiences rather than being overwhelmed with case work and clinic teaching. [53: here, it has to be admitted that scottish law students attend fewer classes. however, short of rethinking the drive for coverage in the south african law curriculum, there are ways of building in academic credit for voluntary work without necessarily involving the problems of directly linking all clinic work to academic credit, such as providing students with academic credit in their final year for their voluntary work in early years (and preferably also reflection on such work).] [54: another difference with scotland is that a significant proportion of south african students might not be able to afford the time to engage in voluntary work, though it can be noted that virtually every student (at least at strathclyde) engages in some level of part-time work and that, if south african universities are committed to both social justice and equity, they will need to think of ways of ensuring that opportunities for voluntary work are not confined to economically comfortable students. the difficulties in doing so and the associated danger that south african clinics become the preserve of privileged students is perhaps the most compelling argument for curricular clinics.] [55: e.g. more committed uslc students often undertake five or so cases a year, often alongside non-case work legal services. one student conducted 46 cases in just over three years.] another possible drawback to giving students credit for their clinic work is that this runs the risk that they might abandon clients or de-prioritise their needs once they have received the required credit for their work. on the other hand, worries about loss of marks for letting down clients might be said to lead to students providing better client services than their volunteer counterparts. in response, however, psychologists suggest that attempting to ensure compliance through rewards and punishments is less effective than a personally felt intrinsic motivation to act virtuously, and may in fact undermine the development of such motivation.[footnoteref:56] if so, selecting students on their commitment to social justice and relying on a strong and internally socialised social justice may, as at the uslc, be as (if not more) effective in ensuring quality service to the community than the extrinsic motivation of academic credit. indeed, it was this confidence in the strength of the ethos that led to the development of the clinical llb, which despite my concerns about associating clinical activity with academic credit, allows students admitted into uslc to opt for using their clinical experiences as an alternative form of assessment throughout the standard llb. revealingly, less than a third of every new uslc cohort opt to do so. [56: see eg david carr, educating the virtues: an essay on the philosophical psychology of moral development and education (1991), 150-155; alfie kohn, ‘how not to teach values – a critical look at character education’, 78 phi delta kappan 6 428 (1997).] 3.1.3. compulsory versus voluntary involvement there is no logical connection between whether clinic involvement is curricular or extra-curricular and the independent variable of whether it is compulsory or voluntary. although the idea of compulsory pro bono legal services may strike many as oxymoronic [footnoteref:57] many law schools make a certain number of pro bono hours compulsory and more than half of south african law schools require students to take a clinical class.[footnoteref:58] in other law schools, clinic involvement may be optional, whether it be for credit or on an extra-curricular basis. [57: cf. rhode, note 21, 37.] [58: de klerk, note 7, 932, and cf. holness, note 2, 342-3 arguing for this to be extended.] from the perspective of promoting social justice, it is arguable that there is no clear benefit to making clinical involvement compulsory and possibly some disadvantages. it will not necessarily increase the number of students involved in a clinic at any one time and hence the level of community service. clinics who take students for the duration of their studies may have as many as, if not more, participants than if final year students spend a year in the clinic.[footnoteref:59] and, as noted in the previous section, each student volunteer may undertake as much clinical work over the course of a degree than one taking a clinical class or undertaking pro bono legal services for a limited period. moreover, without the discipline of working for academic credit, those forced to provide legal services may not display the same level of commitment to clients and the community as those who volunteer. [59: the uslc currently has approximately 50 more members than the average size of the final year of the university of strathclyde llb.] but even if compulsory clinical involvement enhances clinics’ direct role in serving social justice, it might well weaken their indirect role. inculcating in all students a long-standing commitment to serving justice is a very tall order. the legacy of apartheid and the exclusion of many from the legal profession make it perfectly understandable for most of the population to want to use a law degree solely for personal and family advancement. moreover, as we have seen,[footnoteref:60] research in the us shows that even those who enter law school with the desire to serve others tend to be funnelled into commercial and other non-justice oriented jobs by student debt, the dominance of commercial law firm recruiters, and the commercial and private law-bias of law school curricula. although no equivalent research has been undertaken, it seems that this is unlikely to be very different in south africa.[footnoteref:61] consequently, law clinics will do well just to sustain the commitment to social justice of incoming law students. falling between these two groups of students are those who study law simply because they want to keep their options open or, as many claim in uk surveys, because they think it will be interesting.[footnoteref:62] how likely are they to be transformed into justice activists by clinic involvement? the answer seems to depend on a combination of their underlying personality as either tending more toward altruism than egotism, various factors relating to the length, intensity and type of their clinic involvement (does it expose them directly to problems of those most in need and provide them with opportunities to gain satisfaction at what they achieve or regret at any failures),[footnoteref:63] and the extent to which their clinic experiences are accompanied by opportunities to learn about social injustice and the lawyers’ responsibilities to redress it. [60: at note 23.] [61: see references in note 24.] [62: see nicolson (2013) above note 47 , 41-42, and the other surveys cited.] [63: see sections 2.2.6. and 2.2.7. below in relation to retail and wholesale, and remedial and educative activities, respectively.] however, even with the best conditions possible, us research does not suggest that compulsory pro bono programmes have much success in creating a pro bono legacy.[footnoteref:64] a number of factors[footnoteref:65] combine to suggest mandatory clinical programmes are unlikely to transform many students into future justice warriors: the fact that the personality of incoming students is unlikely to be radically altered from one of egoism to altruism; the length of time which moral psychologists suggest is required for the development of deep-seated moral commitments; and the usual location of compulsory clinical programmes in the later years of study after students have been exposed to an education and law school experience which implicitly teaches them that they owe no particular responsibility to remedy social injustice. providing a smaller group of students with a long-lasting clinical experience seems likely to have more of an impact, especially if generous clinic resources or a cost-effective clinical model allows a substantial portion of all law school students to have this experience[footnoteref:66] and especially if it is combined with classes highlighting issues of ethics and justice. [64: granfield, note 21; rhode, loc cit note 21.] [65: see nicolson, note 13, 156-62 passim.] [66: around a third of all strathclyde law students join the uslc.] if participation in a sjo clinic is to be optional, then it becomes necessary to decide whether all volunteers are to be admitted and, if demand outstrips the places available, what criteria should be used to select students. the goals of maximising social justice suggest that only those primarily motivated to serve the community (and who have certain minimum levels of competence) should be admitted. otherwise, clinics risk exposing clients and other service users to inadequate services. on the other hand, if through training, supervision and informal means of socialisation, incoming students are confronted with a strong and hegemonic ethos of community service, sjo clinics may be able to cope with, and even transform, some students who are equally motivated by their own interests. the likelihood of this happening depends, inter alia, on the approach to the final two organisational variables, to which we now turn. 3.1.4. staffversus student-managed clinics the first of these relates to whether clinics are run by staff or students. as with many variables, the distinction between staffand student-managed clinics is one of degree. clinics can be totally staffor totally student-managed, but various management tasks can also be divided or shared between staff and students. for example, clinic direction can rest with a committee or management team involving both students and staff, who can have equal or weighted decision-making power. this mix can in turn vary from one area of responsibility to another. for example, staff could (and should) have sole responsibility for finances and academic programmes, but students could control selection to extra-curricular aspects of the clinic and what type of community services to provide. similarly, as in the uslc, day to day clinic management can be shared between: academic and clinical staff, who supervise case and run the educational programmes; paid administrative staff, who make client appointments and service committees; and students, who are responsible for fundraising, it and publicity, and running (but not necessarily delivering) training. as the early years of uct legal aid show, it is possible for students to be supervised by volunteer attorneys or even experienced students, at least where services provided are not particularly complicated. indeed, using attorneys may become increasingly attractive if other south african law societies follow the example of the cape law society which has made pro bono work compulsory.[footnoteref:67] admittedly, most clinics will tend to prefer supervision by employed staff. it is also much more conceivable that clinics will involve staff leadership and students undertaking more mundane administrative tasks than follow the early uct legal aid model and reverse this division of labour. [67: de klerk note 7, 945.] probably because of the dominant desire to use clinics to educate students, the idea of students playing a central role in clinic direction and administration has fallen out of favour in south africa. certainly, there are a number of obvious disadvantages to this option. first, students will usually lack experience and knowledge of the policy and legal justice landscape, and of university procedures and politics, as well as institutional memory of clinic policies and the reasons for them. consequently, they might unwittingly cause problems with their universities, funders and other stakeholders. secondly, it is inefficient to have a regular turn-over of students, each of whom will encounter a steep learning curve as regards their new area of responsibility. thirdly, clinic management can suffer when academic work, casework and part-time jobs overburden students who, because they are volunteers, cannot be line-managed like paid employees. finally, collaborative leadership and management between staff and students can lead to a problematic blurring of the status distinction between academic staff and students, especially when they are involved in a teaching relationship. on the other hand, there any many, arguably overriding, advantages to student-led or mixed management clinics.[footnoteref:68] first and most obviously, using students to run clinics allows finances to stretch further.[footnoteref:69] this allows sjo clinics to expand the services provided and the number of students exposed to the potentially transformative experience of serving the community. secondly, students learn valuable skills from the tasks they perform and their management roles, with a concomitant impact on social justice if they later use these skills to assist those most in need, rather than just those who are prepared to pay high fees. thirdly, clinic management is less dependent on key staff members who, if they leave (as regularly occurs in south african law clinics),[footnoteref:70] cannot be easily replaced without disruption. by comparison, the impact of one or even a few students not fulfilling their obligations is far less damaging and more easily rectified. [68: for a rare acknowledgment, see robert a solomon, ‘teaching morality’, 40 cleveland state law review 507, 509 (1992).] [69: relying on student volunteers to help run the uslc covers the cost of approximately one supervisor, who as we have seen (text following note 41) can supervise 150 students.] [70: maisel, note 4, 402-05.] other advantages to student responsibility are more difficult to measure, but no less important. thus, drawing on the ideas and experiences of a wide range of people – many of whom might be closer to the communities they serve than law clinic staff – may generate more innovative and effective ideas for enhancing social justice. moreover, students responsible for running clinics are likely to feel a sense of “psychological ownership” in “their” clinic. according to empirical research,[footnoteref:71] this encourages them to go the extra mile in fulfilling their responsibilities, and as my experience confirms,[footnoteref:72] to use their initiative to enhance the means and effectiveness of serving the community, thus demonstrating that they can remedy social injustice without waiting for others to show them the way. [71: jon l. pierce, tatiana kostova, & kurt t. dirks, ‘toward a theory of psychological ownership in organizations’, 26 academy of management review 298 (2001); michael p. o' driscoll, jon l. pierce, & ann-marie coghlan, ‘the psychology of ownership: work environment structure, organizational commitment, and citizenship behaviours’, 31 group and organization management 388 (2006).] [72: uslc students initiated and developed its public legal education work, its online advice system and a partnership with an hiv/aids organisation.] a final group of advantages relates to the transmission of values. committee meetings and extended mentoring relationships between students (which can replace the more hands-on supervision of eo clinics), arguably provide a more effective process of values socialisation than that provided by a few staff members. while respected staff members may model a commitment to access to justice, the impact might be lessened if they are paid employees and their focus is on teaching. by contrast, students (and volunteer lawyers and academics) who give up their free time to run clinics act as powerful altruistic role models. finally, long-standing involvement in a distinct organisation, with formalities like a constitution and elections or an appointment process for committee positions, creates conditions conducive to the development of a strong and cohesive ethos which can be transmitted through agms, committee meetings, supervision and mentoring, as well as social events and other opportunities for informal socialisation which arise when people are involved in working closely and forming friendships with like-minded colleagues.[footnoteref:73] [73: cf. e.g. elton f. jackson et al., ‘volunteering and charitable giving: do religious and associational ties promote helping behaviour’, 24 nonprofit and voluntary sector quarterly 59 (1995); e. gil clary et al., ‘understanding and assessing the motivations of volunteers: a functional approach’, 74 journal of personality and social psychology 6 1516, 1518 (1998).] 3.1.5. “cluster” versus “omnibus” clinics the advantages of a cohesive student body creating an enduring ethos which is transmitted to each new cohort has implications for a final organisational variable. thus, a choice faces law schools whose clinics conduct multiple activities (case work, law reform, public legal education, etc.) or multiple specialisms (consumer cases, family law, etc.) or who act for more than one class of clients (refugees or domestic violence survivors, etc.). they can either set up separate clinics for each activity, specialism and/or client type, which are only loosely connected with each other – what can be called a cluster clinic – or they can conduct all activities within a single clinic with a uniform selection process, training, practice rules, etc. – what can be called an omnibus clinic. while cluster clinics are often chosen in order to link clinical activity to substantive areas of law or legal practice for teaching purposes, it also enables a more intensive socialisation process through more personal relationships with staff. on the other hand, if – as is common in cluster clinics – students remain in a particular clinic for short periods their exposure to this process is limited. furthermore, they cannot realistically engage in clinic management with all its benefits in terms of psychological ownership and role modelling. omnibus clinics also have greater potential for inculcating a common social justice ethos over a longer period of time. finally, they are efficient in not requiring separate student and induction training for each clinic, as well as allowing for other efficiencies of scale as regards publicity, fund-raising, etc. 3.2 clinic activities having looked at five organisational variables, we turn to seven variables relating to the activities dimension of the decision-making matrix, namely whether services are: (1) specialist or generalist; (2) exclusively legal or “holistic”; (3) provided only by students or qualified legal professionals; (4) located in community neighbourhoods or on campus; (5) provided by students working “in-house” in a university clinic or in external placements; (6) designed to benefit the wider community rather than just the individuals directly served; and (7) designed to remedy existing problems or educate the public on their legal rights and duties. 3.2.1. specialist versus generalist services the first activity variable is closely linked to the last organisational variable. this is because opting to provide at least more than one specialist service often leads to law clinics adopting a cluster clinic. by contrast, omnibus clinics tend, at least when first established to provide generalist services to the community whereby clients or community groups are provided with whatever legal help they need. such generalist service can be available to all (at least in a sjo if they fit means testing criteria) or only those from certain geographical areas or who fall within client or community groups (such as students or those with hiv/aids). however, there is no necessary connection between generalism and omnibus clinics on the one hand, or between specialism and cluster clinics on the other. discrete generalist clinics can co-exist in the same law school with specialist clinics under the cluster model, [footnoteref:74] and omnibus clinics can set up units focussing on specialist areas of practice or types of clients, and/or allow students to specialise within the clinic either for the duration of their involvement or at particular stages. [74: as at the university of witwatersand: de klerk & mahomed, note 32.] in terms of the benefit to clients and the community, specialist and generalist services have competing advantages. specialist services allow clinics to target those seen as most in need (such as asylum seekers or domestic violence survivors). they also allow staff and students to develop greater expertise and experience in the areas of law practised, and clinics to foster cooperative relationships with institutional players and parallel organisations.[footnoteref:75] to the extent that client and community needs are confined to that area, specialist clinics or specialist units within omnibus clinics are likely to provide better services than generalist clinics. but where client needs cross areas of law as they frequently do[footnoteref:76] clients will have to be referred to other clinics or to external agencies, causing them inconvenience and possibly “referral fatigue” and the abandonment of their claims.[footnoteref:77] specialist clinics have other drawbacks.[footnoteref:78] students and staff who grow accustomed to working in a particular legal area might not see the relevance of other areas and may also be less likely than those in generalist clinics to appreciate the frequently significant connection between legal and non-legal solutions to clients’ needs,[footnoteref:79] especially where specialist clinics are designed to teach substantive law subjects. [75: de klerk & mahomed, ibid. other south african supporters include du plessis, note 32, 14-5; holness, note 2, 340.] [76: see e.g. hazel genn & alan paterson, paths to justice scotland: what people in scotland think and do about going to law (2001) 44-48 on “problem clusters”.] [77: see e.g. hazel genn, et al. understanding advice seeking behaviour: further findings from the lsrc survey of justiciable problems (2004), 30-32.] [78: newman, note 50; antoinette sedillo lopez, ‘learning through service in a clinical setting: the effect of specialization on social justice and skills training’, 7 clinical l. rev. 307 (2000-2001).] [79: see section 3.2.2., below.] as regards clinics’ possible indirect impact on social justice, students who concentrate on one clinic activity, legal area or type of client are less likely to appreciate the full range of problems and injustices facing disadvantaged members of the community, and may not find that the particular clinic activity undertaken inspires them to a career serving social justice. on the other hand, where they are attracted to the work undertaken, their much greater immersion in it is likely to have a much deeper and longer-lasting impression than a fleeting exposure to a variety of activities. given these competing advantages and disadvantages of both specialist and generalist services, clinics might be best advised to encourage, if not require, students to undertake a variety of specialisms during the course of their clinical involvement. once again, this requires the longer student involvement associated with extra-curricular, as opposed to curricular, clinics. 3.2.2. holistic versus exclusively legal services closely related to the question of whether services are specialist and generalist is the question of whether they draw only on the expertise of law staff and students to provide exclusively legal services, on the one hand, or whether law clinics enter into partnerships with professionals and/or students from other disciplines, or at least ensure that students are trained in such disciplines to provide “holistic” (or “wraparound”) services to clients and the community, on the other hand. there is little question that the latter is far more beneficial to those receiving clinic services.[footnoteref:80] thus, legal problems are often inextricably mixed with social, medical and economic problems,[footnoteref:81] making their resolution difficult without resolving one or more related non-legal issues, such as where clients have mental health problems or are heavily in debt. but even where issues can be compartmentalised, clients benefit from having all relevant types of help on hand, rather than having to do the rounds of different agencies in different locations, especially where they have transport and time restrictions. similarly, multi-disciplinary approaches are often essential where clinics seek to improve the lives of community members through transactional work or litigation strategies, not least because law may not be the only, or indeed the most effective, way to empower communities or remedy problems.[footnoteref:82] [80: see e.g. dubin, note 11, 1491-93; stephanie k. boys, carrie a. hagan, & valerie voland, ‘lawyers are counselors, too: social workers can train lawyers to more effectively counsel clients’, 12 advances in social work 241 (2011); susan mcgraugh, carrie hagan, & lauren choate, ‘shifting the lens: a primer for incorporating social work theory and practice to improve outcomes for clients with mental health issues and the law students who represent them’, 3 mental health l. & pol'y j. 471 (2013-14).] [81: see again, genn and paterson, loc cit note 74.] [82: see the references in note 92 below; esp ashar.] 3.2.3. “professional” versus “amateur” responsibility a second question involving who does what in clinics relates to the balance of responsibility between the students and relevant qualified professionals (whether they be paid or voluntary, legal or non-legal).[footnoteref:83] are services provided by qualified professionals, with students learning from observation and engaging in discrete tasks like researching particular legal points or drafting routine letters, or alternatively by students acting entirely on their own? between these two extremes lie what many[footnoteref:84] regard as the optimum “student ownership” educational model, whereby students act under supervision of clinic staff, or (less preferably) voluntary lawyers or those in in placement agencies. [83: cf. giddings, note 38, 20-21.] [84: see e.g. april land, ‘'lawyering beyond' without leaving individual clients behind’ (2011-2) 18 clinical l. rev. 47, esp. at 56.] where particular clinics fit on this spectrum depends in part on how many paid staff can be afforded, the existence of agencies to host placements, the extent to which local lawyers will lend their assistance, and crucially in south africa the extent to which law clinics wish to employ candidate attorneys. in addition, a major obstacle to south african law clinics fulfilling their social justice potential is the continuing prohibition on students appearing in court.[footnoteref:85] this means either that representation stops short of advocacy, thus giving opponents an advantage, or that, absent pro bono advocates, clinic staff have to take time out from supervision to appear in court. it also deprives students of the thrill of court advocacy and the potential sense of achievement at satisfying legal victories which may help foster a life-long commitment to helping those in need. [85: cf. david mcquoid-mason, ‘whatever happened to the proposed south african student practice rules?’ (3) de jure 591 (2008).] to the extent that students can represent clients, the choice of how much autonomy they should have in sjo clinics will depend on whether one would prefer to ensure high quality services to a few by increasing professional involvement or to maximise the number of community members served (at least subject to guaranteeing minimum quality standards through training and “final product” supervision). it will also depend on what sort of work is involved. some activities such as public legal education or help with legal form filling, require minimal or no supervision. others, such as preparing test cases in the constitutional court, might be close to impossible without experienced lawyers.[footnoteref:86] [86: see e.g. anna e. carpenter, ‘the project model of clinical education: eight principles to maximize student learning and social justice impact’, 20 clinical l. rev. 39 (2013-4).] 3.2.4. neighbourhood versus campus law clinics turning from questions of who provides clinic services to those of their locality, it needs to be decided first whether clinics should be located in the community itself or on campus. where clinics work with particular communities to ensure social change or law reform, locating themselves in the neighbourhood of the community is seen as essential.[footnoteref:87] matters are less simple in relation to providing legal services to individual clients.[footnoteref:88] neighbourhood law clinics[footnoteref:89] seem to be preferable in terms of ensuring ease of access and consequent expansion of the number of clients served, and in the signal they gives clients about their importance. but this requires accommodation in all relevant neighbourhood localities. where this is not possible and the university is situated near a transport hub, a central campus clinic might make more sense in that it is likely to be cheaper and easier for those living in satellite areas to travel to the clinic, rather than making more than one journey from their own locality to another satellite area.[footnoteref:90] [87: on the value of a neighbourhood location, see brodie, supra note 13; nancy cook, ‘looking for justice on a two-way street’, 20 wash. u. j.l & pol'y 169 (2006).] [88: a further complication derives from the possibility of providing (as is done at uslc) online legal services (see e.g. robert m. bastress and joseph d. harbaugh, ‘the 25th anniversary of gary bellow's & bea moulton's the lawyering process: taking the lawyer's craft into virtual space: computer-mediated interviewing, counseling, and negotiating’, 10 clinical l. rev. 115 (2003)). however, while this has obvious advantages in resolving geographical problems of access to justice, insufficient numbers of south africans most in need of legal services are likely to have easy access to online services or the necessary computer literacy to make this currently a viable alternative to face to face services.] [89: according to iya, note 32, 27, these have mushroomed in south africa.] [90: travel to neighbourhood clinics might also pose problems for some students: jobst bodenstein, personal communication, 14 april 2015.] neighbourhood clinics also have advantages in terms of a desire to educate students about social justice in that they force students out of the comfort of the campus’ “protective bubble”[footnoteref:91] and confront them first-hand with the social deprivation their clients encounter on a daily basis. however, in order to maximise learning experiences, it is desirable to have supervisors on hand either on site or shortly after the students’ return to campus. [91: margaret martin barry et al., ‘teaching social justice lawyering: systematically including community legal education in law school clinics’, 18 clinical l. rev. 401, 444 (2011-2) (albeit making this point in relation to placements).] 3.2.5. in-house versus external placements particularly if similar teaching arrangements are put in place,[footnoteref:92] a similar conscientising and educative effect may be achieved by placing students with external organisations providing advice and representation, running law reform campaigns or otherwise serving the community. this placement or externship model has the merit of enabling students to gain clinical experience usually under professional supervision at little or no cost, and thus might provide a useful means of extending student involvement beyond that which can be catered for in an in-house clinic.[footnoteref:93] on the other hand, to the extent that in-house clinics can be afforded, they have the benefit of enabling staff to have greater control over student activities.[footnoteref:94] [92: resulting in what margaret martin barry, jon c dubin, & peter a joy, ‘clinical education for this millennium, the third wave’, 7 clinical l. rev. 1, 7 (2000) call a hybrid in-house/externship program.] [93: e.g., those not selected for admission to the uslc are offered placements at advice agencies and an optional class on legal practice, ethics and access to justice.] [94: henry rose, ‘law schools should be about justice too’, 40 clev. st. l. rev. 443, 452 (1992).] 3.2.6. “retail” versus “wholesale” legal services having in a sense cleared the ground by looking at the preceding activity variables, we turn to the final two, and perhaps most defining variables, of clinic activity, namely the scale and type of legal services provided. as regards scale, here one can distinguish between what can be called “retail” and “wholesale” services.[footnoteref:95] the former category involves services provided to individuals with legal problems or other legal needs. most obviously, retail services may involve the “bespoke” services of advice and representation, as well as transactional work such as that provided to non-profit organisations. it may also involve “unbundled” services, ranging in complexity from form-filling to writing letters and even drafting pleadings.[footnoteref:96] wholesale services involve assistance to larger groups of people using efficiencies of scale. thus clinics can provide workshops guiding groups of prospective claimants on how to mount particular types of legal claims or training those who provide services to others. [footnoteref:97] more commonly and more ambitiously, clinics can seek to improve the situation of large groups of people through various more direct means. [footnoteref:98] this may involve impact litigation, law reform campaigns, and educating the public about their legal rights, remedies and duties so that they can avoid legal problems before they arise or know how to resolve them when they do. increasingly, clinics also engage in community empowerment projects where they work in partnership with communities to bring about lasting changes to people’s lives through, for example, economic empowerment, transactional support for community and political groups, and campaigns for living wages and basic community services. [footnoteref:99] [95: like many other distinctions, there is a spectrum rather than a bright line between these poles. at one extreme are individual services, with unbundled services being the most individualised; at the other is impact work where the benefit of assisting an individual or group of individuals extends beyond the particular client or group; and somewhere between can be placed non-impact work for groups.] [96: for a critical analysis, see mary helen mcneal, ‘unbundling and law school clinics: where's the pedagogy?’, 7 clinical l. rev. 341 (2000-1).] [97: see e.g. peggy maisel, ‘the consumer indebtedness crisis: clinics as laboratories for generating effective legal responses’, 18 clinical l. rev. 133, 171-73 (2011-12) (describing activities of the university of pretoria law clinic).] [98: see e.g. maisel, ibid; carasik, note 11, esp. 46ff; kruse, note 18; ashar, note 35; peter pitegoff, ‘law school initiatives in housing and community development’, 4 b. u. pub. int. l. j. 275 (1994-5); jayashri srikantiah & jennifer lee koh, teaching individual representation alongside institutional advocacy: pedagogical implications of a combined advocacy clinic, new york law school clinical research institute, research paper series (no.10/11 #1), (2010); praveen kosuri, ‘"impact" in 3d maximizing impact through transactional clinics’, 18 clinical l. rev. 1 (2011-2012).] [99: see e.g. caraisik, ibid, passim; cf. also paul r. tremblay, ‘toward a community-based ethic for legal services practice’ 37 ucla l. rev. 1101 (1989-1990).] the choice between retail and wholesale service is one of the most difficult facing sjo clinics. on utilitarian grounds, the latter seem preferable in potentially having a far wider and longer-lasting impact. wholesale services also seem likely to provide students with a better idea of the structural nature of social injustice, and effort and type of activity needed to redress it. furthermore, the sense of personal achievement in making noticeable improvement to the lives of many may inspire some to engage in similar work once they qualify.[footnoteref:100] the fact that impact work takes time to achieve may also lead to continuing contact between different generations of students, replicating some of the benefits of omnibus clinics in terms of their socialising ethos. finally, students who undertake long-term projects may continue their involvement after graduation and hopefully develop the habit of pro bono work.[footnoteref:101] [100: see carasik, ibid, 69ff; kruse, note 18, 411443 passim, 443; ashar, note 35, passim; pitegoff, note 94, 285, 288.] [101: kosuri, note 96, 42.] on the other hand, there is also no doubt that clinic clients “demand and appreciate the individual services they receive.”[footnoteref:102] aside from the material benefits provided, there is something very valuable in students showing marginalised and underprivileged community members that they matter by taking time to listen to them and doing their best to resolve their problems. the impact on those who are usually subjected to, rather than protected by, law and lawyers may start a process of healing that is carried through to other aspects of their lives.[footnoteref:103] moreover, compared to long-term involvement in impact litigation or law reform campaigns where students might not see the results of their hard work, meeting and assisting a wide variety of individual clients is likely to provide students with much greater exposure to the personal impact of social injustice and engender a sense of achievement in making a difference to their lives. as we have seen, [footnoteref:104] it is such exposure which is so important to the development of student empathy and to inspiring a life-long commitment to helping others. [102: brodie, note 13, 369.] [103: but see the scepticism of ashar, note 35, 407 and 411.] [104: notes 17-19 above and accompanying test; see also land, note 82; srikantiah & koh, note 96, esp. 462-65 passim.] one also needs to consider that obtaining positive outcomes is far less certain with long-term projects than with individual case work. this is largely because legal strategies designed to have wide-ranging consequence are more likely to be resisted by powerful opponents potentially adversely affected by such consequences. while they might succumb to small or self-contained claims because of their nuisance value, such opponents are likely to throw all available resources at preventing more permanent and wide-reaching consequences materialising. 3.2.7. remedial versus educative legal services in discussing the previous variables, for reasons of clarity i have largely focussed on legal services aimed at making material changes to people’s lives. these can be called remedial services in contrast with educative services which involve providing people with relevant legal knowledge to enable them to take advantage of their legal rights, avoid legally sanctioned harms or persuade them to respect those of others. admittedly, there is a considerable overlap between these two categories. thus, clinics can seek to remedy legal problems through educating people to help (and hence empower) themselves, for instance by running workshops on how to pursue existing legal claims or providing people with the necessary legal knowledge for when problems arise. alternatively, other agencies can be educated to help others, such as the valuable training south african law clinics provide to para-legals working in rural areas.[footnoteref:105] however, public legal education is usually associated in south africa and elsewhere with “street law” programmes in institutions likes schools or prisons involving various relevant areas of law and human rights. [105: de klerk, note 7, 941 n. 92.] deciding whether social justice is better enhanced through prioritising remedial or educative services takes us into the realm of speculation, not least because there seems to be little hard evidence on the effect of street law. research suggests that it can reduce prisoner recidivism,[footnoteref:106] but as far as i can gather there is no evidence of street law helping its beneficiaries from avoiding future legal problems, acting more in accord with others’ rights or generally furthering the goal so important in south africa of developing a society which values and respects human rights, the rule of law and democracy. street law has been shown to foster student skills and confidence, and to increase public awareness of the law, empower communities and create a sense of shared community.[footnoteref:107] but, while many of those who provide street law sessions on human rights and democracy may well themselves develop an enhanced commitment to these values, i am not aware of studies investigating whether street law programmes develop or reinforce a commitment in students to serve the community once they have graduated. here, however, one might imagine that, by contrast to the satisfaction of personally helping others through remedial work even of a wholesale nature, the sense of satisfaction engendered by street law and workshop teaching is likely to be lessened by the prospective and uncertain nature of its impact. [106: see david mcquoid-mason, ‘street law as a clinical program-the south african experience with particular reference to the university of kwazulu-natal’, 17 griffith law review 27, 33, (2008), citing l. arbetman et al., street law: a course in practical law (4th ed, 1990).] [107: mcquoid-mason, ibid, 46; kamina a. pinder, ‘street law: twenty-five years and counting’, 27 j.l. & educ. 211, 225-31 (1998); richard grimes et al., ‘street law and social justice education’, in bloch (ed.), note 6; ajay pandey & sheena shukkur, ‘legal literacy projects: clinical experience of empowering the poor in india’, in bloch ibid.] finally, comparing all forms of remedial and educative work with each other in terms of their ability to open students’ eyes to the extent and structural nature of social injustice and to provoke disorienting moments and empathy for the victims of social injustice is made fiendishly complicated by the fact that some forms of remedial and educative work do not involve contact with such victims or allow for an overview of the extent of social injustice. consequently, one can only compare certain types of remedial with similar types of educative work, without being able to gain an overall picture of what to prioritise. 4. conclusion in fact, these problems are multiplied exponentially when considering whether remedial and educative work is conducted on a retail or wholesale basis, and whether it involves specialist or generalist services.[footnoteref:108] and then decision-making becomes vastly more difficult when one also factors in the dilemma over whether it is better to prioritise certain but less extensive positive impacts on social justice over more extensive impacts which are less likely to materialise. this dilemma came up frequently in the preceding discussion, but most notably in relation to comparing retail with wholesale services and, even more fundamentally, in exploring whether to prioritise direct or indirect means of enhancing social justice. [108: leading to eight possible configurations of services: specialist retail remedial; specialist retail educative; specialist wholesale remedial; specialist wholesale educative; generalist retail remedial; generalist retail educative; generalist wholesale remedial; generalist wholesale educative.] these complications and uncertainties do, however, suggest one conclusion that flows from the analysis of the activities domain of the decision-making matrix. this is that law clinics that seek to maximise their social justice impact might be advised to aim at providing as many different forms of legal service as is possible (specialist as well as generalist, wholesale as well as retail, and educative as well as remedial). moreover, where choices have to be made within each type of service, they should choose those which will have the widest known impact and/or serve clients or community groups whose needs are most pressing. it would also seem sensible for clinics to work with other disciplines to provide holistic services in a locality most convenient to the communities they serve. furthermore, in order to extend the level of services and student exposure to the potentially transformative impact of clinical experience, clinics should utilise external placements as well as in-house services and provide students with as much autonomy in the conduct of cases as is compatible with reasonable levels of quality services. if these suggestions as regards the activities domain of the decision-making matrix are persuasive, this has implications for clinic organisation. thus, instead of students becoming overwhelmed by competing deadlines and the disparate skills involved in all forms of services (retail and wholesale, remedial and educative, specialist and generalist),[footnoteref:109] their activities could be structured to involve a skills progression. for example, incoming students could initially provide wholesale educational services and low-key or unbundled retail work (such as form-filling and possibly also litigation workshops). later they could graduate to more intensive client-focussed work and more specialist educational work (such as the training of other agencies). finally, they could engage in the high profile and high skill work involved in impact and community empowerment work, while also mentoring and, if properly trained, even supervising less experienced students in order to save valuable staff time. [109: cf. srikantiah & koh, above note 96, 466.] while this progressive approach to clinic activity can be achieved in cluster clinics, it is easier to manage in omnibus clinics. moreover, where clinical involvement is limited in duration, it is more difficult to expose all students to a variety of activities, and to maximise the potential to develop or at least sustain their commitment to redress social injustice, while simultaneously allowing them to gain the training and experience necessary to provide quality legal services. thus, in addition to the reasons already given for not making clinic involvement compulsory and entirely curricular,[footnoteref:110] the value of a progressive approach to clinical activities (or indeed any other model which exposes students to a wide variety of activities) suggests that – absent substantial increases in clinic resources – clinical participation should be optional so that it can be spread over the course of the degree. such long-term clinic involvement is particularly useful in meeting the problems of institutional memory as regards both impact work and maintaining ongoing relations with community leaders. but it is also essential if students are to have the necessary institutional knowledge and experience to help run clinics and ensure all the associated benefits. [110: see, respectively, sections 3.1.3. and 3.1.4, but note the discussion of the clinical llb at note 47, which does not however by any means give students credit for all their clinic activities.] however, while tentatively offering a number of suggestions as to how clinics might be designed to maximise their impact on social justice, this article is not intended to provide a blueprint for the redesign of existing south african clinics, even if clinicians were inclined to prioritise social justice to the extent argued for here and even if they were free of constraints imposed by local conditions, such as the absence of partners to host placements or the resources to afford neighbourhood clinics. instead, my primary aim was to offer a decision-making matrix which makes clear the wide range of choices and their implications so that law schools and law clinics fully appreciate how decisions about clinic design and choice of activities impact on social justice. this, in turn, will allow them – to the extent desired and possible – to modify clinic organisation and activities to better serve social justice (and indeed other goals as well). thus, while some of these choices and their implications are well known, this article will have hopefully heightened awareness of less prominent variables (such as whether or not clinics are solely staff-run or only provide legal services). it should also now be clear that some choices involve exclusive binary oppositions, for instance as to whether clinical participation is voluntary or compulsory, and services are exclusively legal or holistic. however, with many variables, both alternatives can be combined in various proportions in the same clinic. thus we have seen that clinic can combine specialist with generalist services, retail with wholesale services, and remedial with educative services. similarly, these services can be provided both in-house and through placements, and on campus and in neighbourhood premises. the possibility of combining alternatives also applies to organisational variables such as whether or not clinical involvement attracts academic credit. and, then again, other variables do not involve distinct binary oppositions but merely a spectrum between two poles. most notably, all clinics are more or less rather than exclusively oriented towards social justice or education, but they can also involve greater or lesser degrees of student ownership of both the services provided and clinic management (and indeed different degrees in relation to different activities and management responsibilities). this article should also make clear that, whereas some variables like the choice of locality for service provision, are relatively self-contained in their impact, many have significant consequences for other variables, making one or other option impossible or more difficult. for instance, curricular clinics preclude giving students sole or major responsibility for clinic direction and make an education orientation highly likely, whereas compulsory clinical involvement will prevent students participating in a wide range of remedial and educative activities unless there are very generous resources or minimal student involvement and/or supervision. conversely, focusing on impact work, whether involving litigation or transactional services, will necessitate much higher supervision levels and work better with extra-curricular student involvement which can be spread over a number of years. however, this article was not simply intended to analyse how decisions about the different variables relevant to a law clinic’s design and activities might in the abstract maximise its social justice impact. it was also intended to analyse their implications for responding to the two main obstacles facing south african law clinics. the first is the currently limited and always precarious nature of clinic resources. here, we have seen that the much lower staff-student ratios of sjo clinics make them far more cost-effective, even when combined with teaching designed to ensure justice, rather than practice-readiness. for instance, the uslc currently has approximately 280 students who provide advice and representation in the lower courts and tribunals, run street law programmes in prisons and schools, engage in law reform activities, investigate alleged miscarriages of justice, assist destitute asylum seekers and survivors of gender violence, and run workshops to assist those with housing disputes and evening advice sessions staffed by pro bono lawyers. yet the clinic only employs four part-time supervisors and one full-time administrator, whereas i devote less than half my time to clinic management and the clinical llb. the other reason for the uslc’s low costs is the role played by the students in its running. even leaving aside the advantages of drawing on the energy, enthusiasm, initiative and life experiences of a wide group of student volunteers to run a clinic, it is undeniable that involving students in running clinics enables more students providing more extensive activities. in south africa, it would create a bulwark against the precarious nature of the current reliance on non-university funding.[footnoteref:111] resources can also be made to go further if clinics prioritise social justice rather than teaching law and developing skills because of the lower staff-student ratios. this is so even if curricular opportunities for exploring issues of social justice are combined with largely voluntary student activity in either dedicated classes or something like the clinical llb. such a model may offer a more effective alternative to responding to law clinics’ ongoing funding problems by highlighting their educational benefits in order to persuade universities and others to increase clinic resources.[footnoteref:112] [111: cf. de klerk, note 7, 949.] [112: cf. ibid, 948.] a focus on social justice delivery and teaching may also be more effective in persuading law schools to accord clinicians the same status as other academics in terms of remuneration, promotion and working conditions. teaching and writing on issues of social injustice and the means for their redress is more likely to be seen as aligning with prevailing conceptions of legal education and scholarship than the perceived[footnoteref:113] dumbed-down nature of teaching skills[footnoteref:114] and writing about clinical legal education. furthermore, universities in the new south africa espouse a social justice mission which runs alongside that of teaching and scholarship,[footnoteref:115] and law clinics can justifiably claim to be the primary means of law schools fulfilling that mission. in leading the charge on behalf of their universities and law schools, law clinicians ought to be rewarded and law clinics expanded, not marginalised. hopefully, my suggestion for a return to the roots of the south african law clinic movement with its emphasis on student activism and social justice can help ensure that law clinics achieve the funding and status they deserve. [113: in fact, teaching and writing about issues relating to legal practice can be as intellectually demanding as other forms of legal education and scholarship, certainly that involved in expository teaching and black-letter scholarship.] [114: see iya, note 4, 272-73, and for an example, see stuart woolman, pam watson & nicholas smith, ‘toto, i've a feeling we're not in kansas any more: a reply to professor motala and others on the transformation of legal education in south africa’, 114 s. african l.j. 30 (1997).] [115: africa, above n. 38.] 89 23 multidisciplinary clinics – broadening the outlook of clinical learning ross hyams* faye gertner** introduction students exposed to the clinical legal education environment quickly acknowledge that clients’ presentation of their legal problems is much more complicated, subtle and multifaceted than they could ever have believed was possible� they regularly report to their clinical supervisors that their classroom experience has not adequately provided them with either the practical skills or legal knowledge that they need in order to deal confidently and competently with the many factors and complexities underlying clients’ legal problems� they report feelings of inadequacy in their dealings with issues that often form a deep-rooted subtext to clients’ legal problems� these issues may be a mixture of psychiatric, financial, social, educational and ethnic or language factors� in recognition of this inadequacy reported by clinical students, this paper focuses on the necessity of developing multidisciplinary legal clinics law students working in a clinic together with students from other disciplines, such as social work, financial counselling and psychology� professionals across a wide range of fields have increasingly recognised the advantages of multidisciplinary practice in teaching, scholarship and service delivery to clients1� a multidisciplinary approach to legal practice is becoming more relevant as legal systems change2 to encompass processes and procedures of justice delivery which deviate from the traditional adversarial paradigm� the aim of this paper is to investigate the challenges of establishing and working in such a clinic� * senior lecturer, monash university ** director monash oakleigh legal practice, monash university 1 see schlossberg d “promoting justice through interdisciplinary teaching, practice, and scholarship: an examination of transactional law clinics in interdisciplinary education” (2003) 11 washington university journal of law and policy 195; green b “reflections on the ethics of legal academics: law schools as mdps: or, should law professors practice what they teach? (2001) 42 s� texas law review 301; kritzer h “ the professions are dead, long live the professions: legal practice in a post-professional world” (1999) 33 law and society review 713 2 potter d, “lawyer, social worker, psychologist and more: the role of the defence lawyer in therapeutic jurisprudence” (2006) elawmurdoch university electronic journal of law special series 95� 24 international journal of clinical legal education issue 17 other writers have explored the integrated service model3 in which clients can be referred from a community legal service to aligned services, often co-located in the same building�4 however, such a service model is not a multidisciplinary environment� this paper will explore the perceived educational benefits to students of working in a genuine multidisciplinary environment, including exposure to a social justice agenda which, the writers contend, is currently lacking in legal education� further, it will consider the perceived tension between the orientation of lawyers as “zealous advocates” and other caring professions� finally, the paper will look at the practical aspects of forging effective alliances between organisations in order to create the appropriate environment for a multi-disciplinary legal clinic, including issues of resourcing� the paper will conclude that, despite the ideological and practical issues which need to be resolved in order to create an effective multidisciplinary clinic, law students would derive great benefit from involvement in such a clinic� why change clinical practices? in order to maintain relevance, clinical legal education needs to teach about practices and processes that are going on “out there” in the legal system� it is clinicians’ responsibility to ensure that legal clinics provide students with educational opportunities which will best enable them to take their place in the workforce� it has been long accepted that lawyers require an understanding of how to perform in teams within the legal profession�5 however, there is also a burgeoning understanding that lawyers need to develop skills in working in multidisciplinary environments, as team members with non-lawyers such as social workers, psychologists, financial planners, interpreters and other professionals6� currently, many clinical legal education units embrace the notion of “student teaming”7 but it is rare to find student legal teams which encompass students from other disciplines, working together in a clinic� there is no doubt that the call for multidisciplinary clinical legal education is a timely one� in australia, initiatives such as drug courts necessitate lawyers working in a new non-adversarial environment, together with prosecutors, psychologists, therapists, support workers and other court officials in order to secure a therapeutic outcome for the defendant�8 indigenous sentencing courts around australia require lawyers to work, often in a roundtable environment, with a magistrate, an aboriginal elder, the defendant’s support people and indigenous court support 3 see noone m “towards an integrated service response to the link between legal and health issues” (2009) 15 australian journal of primary health 203; clarke s & forrell s (2007) “pathways to justice: the role of nonlegal services� justice issues” law and justice foundation of nsw: sydney; curran l “ making connections: the benefits of working holistically to resolve people’s legal problems (2005) e law -murdoch university journal of law 12 4 springvale monash legal service, operating since 1975 as a joint venture in clinical legal education with monash university, melbourne, is very successfully co-located with the springvale community aid and advice bureau� 5 see chavkin d (2002) clinical legal education: a textbook for law school clinical programs. chapter 9 – collaboration. 6 king m, freiberg a, batagol b, hyams r (2009) non-adversarial justice, the federation press at 238� 7 evans a & hyams r, “independent evaluations of clinical legal education programs: appropriate objectives and processes in an australian setting” (2008) 17 griffith lr 52 at 72� 8 moore d (2007) ‘translating justice and therapy: the drug treatment court networks’ 47 british journal of criminology 42 at 48� multidisciplinary clinics – broadening the outlook of clinical learning 25 workers�9 these modes of hearing are no longer pilot programs or idiosyncratic initiatives, but are becoming an integral part of the australian legal system, as are many other types of problem-solving courts such as mental health courts, family violence courts, alcohol courts and neighbourhood justice centres�10 all these courts have processes and requirements of teamwork which are a far cry from the traditional adversarial paradigm that law students are usually exposed to in their legal education� thus, clinicians need to acknowledge that the current style of clinical legal education does not prepare students very well for working in a multidisciplinary team environment� students need to understand the language and philosophy of professionals in other disciplines; they need to have at least a rudimentary understanding of the fundamentals of other disciplines in which lawyers regularly intersect and interact�11 it is exceedingly rare that a client of a legal clinic presents with a problem that can be defined strictly as “legal” only – more often than not, clients’ legal problems are combined with a myriad of social, financial, psychological and other issues� often, despite lack of training, clinical supervisors are able to identify these issues and refer clients to appropriate professionals� whether clinic students have the skills to do this is debatable� clinicians need to acknowledge that legal knowledge does not have hegemony over the resolution of clients’ problems and that other professionals can assist towards a positive resolution of the issues that clinical clients present� further, both clinicians and law students need to resile from the “superior” status that they give the legal system and accept that clients’ problems may be better resolved by taking a multidisciplinary and holistic approach� educational benefits of collaboration in a specialist clinic the majority of writings on multidisciplinary clinics relate to specialist clinics�12 these clinics involve law students working with students from other disciplines – usually from the social sciences, in clinics that deal with domestic violence, children’s interests and criminal defence�13 st joan14 refers to the educational benefits of collaboration and the influence of social sciences to inform clinical legal education, specifically in the context of the domestic violence specialist clinic known as the domestic violence civil justice project (dvcjp) established by the university of denver college of law� having referenced the many writings by academics and clinical practitioners, she distils the essence of the influence of the social sciences on clinical legal education to include – • strengthening the development of case theories; 9 marchetti m & daly k (2007) “indigenous sentencing courts: towards a theoretical and jurisprudential model” 29 sydney law review 415 at 421� 10 king et al, n 6� 11 id� 12 see schlossberg d “an examination of transactional law clinics and interdisciplinary education “ (2003) 11 washington university journal of law & policy 195; benson s “beyond protective orders: interdisciplinary domestic violence clinics facilitate social change” 14 cardozo j. l. & gender 1; bratt c “beyond the law school classroom and clinic – a multidisciplinary approach to legal education” 13 new eng. l. rev. 200 1977-1978; enos v & kanter l “who’s listening? introducing students to client-centred, client-empowering, and multidisciplinary problem-solving in a clinical setting” 9 clinical l. rev� 83 2002-2003� 13 st joan j “building bridges, building walls: collaboration between lawyers and social workers in a domestic violence clinic and issues of client confidentiality” (2000-2001) 7 clinical l review 403 at 415� 14 id� 26 international journal of clinical legal education issue 17 • appreciating and enhancing the psychological dynamics of the lawyer-client relationship, and • modelling effective interviewing and counselling skills�15 the impact of this influence can be seen when a multidisciplinary clinic attempts to explain and understand its role and function in relation to clients and to the students who work together to provide services to the clients� one of the fundamental concerns when establishing a multidisciplinary clinic is to ensure that it serves its purposes, which must be clearly defined and understood by all participants, including the students and supervisors� where quality service delivery to clients and long term educational benefits to all students involved are two of the goals, the multidisciplinary clinic must develop and implement a rigorous and effective training program to achieve the outcomes sought� the study of law does not guarantee students a particular perspective or understanding about social justice and certainly does not usually deal in the social sciences� the training provided to students at a multidisciplinary clinic needs to be specialised in subject matter and skills as well as philosophically relevant� the pedagogical underpinnings of the domestic violence multidisciplinary clinic described by st� joan firstly involved the provision of information (about domestic violence) to students� professional skills and interdisciplinary collaboration are also taught during an intense orientation period and throughout the students’ time at the clinic� in addition, case reviews with the students occurred regularly� students were provided with written materials, but the focus was on discussion and reflection�16 the role of specialised training that evaluates processes and methods of collaboration in addition to the training of students in traditional lawyering skills ensures that students are encouraged to reflect and provide input� specialised training in collaborative processes itself has tangible pedagogical benefits for students� st joan identifies two distinct styles of collaboration that emerged which she describes as “sideby-side” and “hand-on-hand” styles� the first involves the law and social work students working separately on different matters for the one client� the second style involves the students working together at the same time and place on the same or different issues for the one client� research showed that most students drew from both styles depending on their need at a particular time�17 the “side-by-side’ style enabled students to be more efficient and effective with their time and enabled law students to work separately or together with social work students as required however there was always the risk of “triangulation” where the client is part of a three-way relationship�18 this is less likely to occur in the “hand-in-hand” style� the flexibility afforded by collaboration is evidenced by the fluidity of adapting and adopting the different styles of collaboration at different times in attempting to fulfil different needs� allowing students to work matters out for themselves allows them to develop a style of working with others that best suits their personality and interpretation of their respective roles� however, supervisors having provided clear guidance and ongoing training as to the expectations and framework of the clinic ensures that students are clear about their boundaries and the goals and aims of the multidisciplinary clinic� 15 ibid at 405� 16 ibid at 418� 17 ibid at 417� 18 ibid at 418-419� multidisciplinary clinics – broadening the outlook of clinical learning 27 the importance of clear boundaries from a pedagogical perspective is that the multidisciplinary clinic has an established and apparent framework for its operation� however, there must be sufficient flexibility within it to provide guidance to students and supervisors whilst also enabling students to engage in ways that is most meaningful for them individually -ultimately this ensures the maximum benefit for the client� from a pedagogical viewpoint, students being encouraged to participate in, reflect upon and contribute to the methodology and operating systems of a clinical framework with a sound educational objective would serve to only enhance their experience� in st� joan’s paper, students identified various benefits of collaboration, including provision of improved client services; a broadened student perspective; and the advantage of sharing the experience of caring about a client�19 social work students stated that they had helped the law students deal with their emotional needs and that they had learnt more about the law and the legal system�20 the social work students also indicated that they felt there was a power imbalance in favour of the law student at times� st joan explains that, as the clinic is primarily a law clinic, clients generally perceive lawyers as being more authoritative than social workers and that lawyers are seen to be more devoted to the client’s case than a social worker�21 these matters go to the very core of the issues that underlie multidisciplinary clinics� changing a client’s perception of different professionals and their role will alter only with their own individual experience� social worker and law students’ perceptions and understanding of each other and the role that they each play in relation to a particular client will be reinforced or re-evaluated based on experience� this is augmented by formal teaching and a developing understanding (based on knowledge) of the other’s role and guiding philosophy� the social justice agenda for law students, there is much more to be gained from multidisciplinary practice than the mere acquisition of multifaceted skills� working in a multidisciplinary team exposes law students to a social justice agenda which is enriched by their participation and interaction with students and professionals of other disciplines� it is rare for law students, within the context of a classroom, to be taught to both question and practise law within a broader social justice framework� legal clinics provide law students with the opportunity to place law in its social milieu and multidisciplinary clinics expand the opportunities for students to perceive law in a much broader social context� the myriad of factors (social, financial, psychological and the like) which lead clinic clients to experience legal problems are often implicit in the way a client presents to legal clinic� multidisciplinary practice makes these factors explicit� rand22 believes that law students’ concept of social justice must not occur as a by-product of their exposure to clients, but must be “strongly held and operational�”23 he complains that the us model rules of professional conduct does not provide enough guidance as to concepts inherent in 19 ibid at 420� 20 ibid at 421� 21 ibid at 422� 22 rand s “teaching law students to practice social justice: an interdisciplinary search for help through social work’s empowerment approach” (2006) 13 clinical law review 459 23 ibid at 463� 28 international journal of clinical legal education issue 17 social justice�24 this complaint is echoed by aiken and wizner in their comment that there are no ethical or professional rules governing lawyers’ ability to simply possess adequate professional skills when dealing with clients, except a very general rule requiring lawyers to be “competent”�25 certainly the same can be said of the rules governing professional interactions within australia� in victoria (the writers’ jurisdiction) the most recent professional conduct rules26 require practitioners to serve their clients “honestly and fairly, and with competence and diligence”,27 but this is as far as the rules take any concept relating to the pursuit of social justice or fairness� accordingly, it is difficult for law students to evolve a social justice agenda in their understanding of law, as often the social justice perspective is not made explicit in classroom studies and will only be implicit in their dealings with clients in a clinical environment� the same may be said of practitioners if they have had no exposure to social justice issues during their legal education and professional conduct rules provide no further guidance, it is difficult to imagine that a social justice perspective to their legal work will simply emerge out of nowhere� it may be argued that is not necessary for lawyers to approach their professional role with a social justice perspective� even if one accepts this contention, the fact still remains that a lawyer working in a multidisciplinary environment is at the very least required to understand the professional mindset of the other disciplines (such as social work) who see their professional responsibilities as including a social justice agenda� considering the increasing requirements on lawyers to work in collaborative teams and non-adversarial environments, which require an understanding of other professionals’ perspectives and skills, the fact that both law students and lawyers receive little or no direction as to social justice issues does not augur well for lawyers’ ability to operate professionally and competently in the future� if, as anderson, barenberg and tremblay contend, both social workers and lawyers “strive to hold fundamental society values and promote public service”28 then law students have much of value to learn from working with other disciplines such as social work� there is a strong social justice and client empowerment tradition in social work studies going back at least a century29 which can enrich law students’ interactions with their clinic clients� obviously, there are tensions between social workers’ broader social agenda understanding of their role with clients compared to the traditional notion of lawyers as zealous advocates, which will be discussed in the next section of this paper� however, despite perceived ideological differences between the two disciplines (which the writers of this paper believe can be quite adequately resolved) interdisciplinary collaborations between social work and law students have shown that the law students’ interactions with their clients become more nuanced, subtle and comprehensive because of their interactions, observations and modelling of social work students’ approaches to clients�30 24 ibid at 473� 25 aiken j & wizner s “this isn’t law, it’s social work” (2003) 11 washington university journal of law and policy 63 at 66� 26 professional conduct and practice rules 2005 (vic)� 27 ibid rule 2�1� 28 see anderson a, barenberg l & tremblay p “professional ethics in interdisciplinary collaboratives: zeal, paternalism and mandated reporting” (2006 – 2007) 13 clinical law review 659 at 665� 29 rand, n22 at 480� 30 anderson et al, n28 at 689� multidisciplinary clinics – broadening the outlook of clinical learning 29 tension between orientations of lawyers and other professionals whilst there is no doubt that members of different disciplines – law and social work – want to work in the best interest of their clients, how this is achieved will vary� the underlying philosophies and professional rules that govern each profession will at times come into conflict, especially in a multidisciplinary context� how these differing approaches can be reconciled is one of the challenges facing multidisciplinary clinic students and supervisors alike� it may be that the tension of competing and sometime inconsistent focuses of the different disciplines can cause disruption to the provision of quality service to clients� in an educational setting, however it can also provide the opportunity to explore the reasons for the disparity between the two professions and the possible alternatives to resolve the differences, whilst at the same time improving each discipline’s understanding of themselves and each other� anderson et al acknowledge that interdisciplinary collaboration by social workers with lawyers provides lawyers with skills that will enhance their ability to provide a quality service to their clients�31 they also raise the question of the impact of the different orientations of lawyers, who typically are zealous advocates for their clients and social workers who attend to the larger moral community and social justice concerns�32 the issue is whether a lawyer’s zealous advocacy for their client, when working with a social worker, is diluted� the question which must be answered is whether a lawyer’s zealous advocacy decreases when confronted with the broader community orientation of a social worker, especially when working together in an interdisciplinary clinic� what impact or conflicts do the two disciplines’ ethical/professional rules face in situations where there is multidisciplinary collaboration? whilst we may be tempted to focus on “zealous advocacy” seemingly as the only position for lawyers to adopt, parker & evans posit the view that there is more than one ethical position for lawyers to adopt�33 these positions include the moral activist view where the lawyer’s role is to do “good” because it is the right thing to do in the greater interests of social and political justice and relational lawyers who integrate their personal ethics with legal practice and present an outlook that might be considered more holistic�34 in the context of a multi-disciplinary clinic these alternate views of a lawyer’s “ethical” position and the impact it may have on practice and interactions with members of other disciplines may well inform tensions and ways to resolve them, should they become apparent� many us writers take their starting position as the model rules of the profession,35 whilst parker and evans challenge us to go beyond the professional rules of practice in our perception of lawyering and its ethical intersections� anderson et al’s position is that the focus on “conflict” between the professions is overstated; rather that collaboration provides an opportunity for the client’s goals and options to be fully 31 ibid at 661� 32 ibid at 663� 33 parker c & evans a (2007) inside lawyers’ ethics, cambridge university press, port melbourne at 37 34 id� 35 for example, rand n22� 30 international journal of clinical legal education issue 17 explored by their lawyer through legal means and through “zealous advocacy with third parties”36� this position does not appear to sit easily with st joan’s styles of collaboration – where the social work and law students are more like “partners” than one practitioner who accesses other disciplines on an “as needs” basis� there are similarities and differences between the disciplines that will create a pull and push situation in a multidisciplinary clinic� both social work and law are professions that strive to help their client, at times in similar ways – advocating, advising and facilitating resolution� shared values are apparent37 yet there are distinctions and tensions which are also are important� the professional orientation and focus of the two disciplines provide the potential friction, which is neatly summed up by galowitz: there is an inherent tension between a lawyer’s and a social worker’s ethical responsibilities� the lawyer’s responsibility is to advocate zealously for the client’s wishes, while the social worker’s is to safeguard the client’s best interests�38 accordingly, as galowitz points out39 that tension may emerge in relation to the different disciplines’ approach to clients’ instructions� lawyers usually see their responsibilities towards clients instructions quite clearly – providing advice and guidance and then being bound by the client’s instructions, regardless of whether the individual lawyer believes those instructions to be in the best interests of the client or not� by comparison, social workers will generally look at clients’ issues more holistically40 and will often see their involvement in terms of an “intervention” in an attempt to resolve issues in the best interests of the client� stanger uses the example of child delinquency proceedings�41 she opines that social workers would approach the matter with an attempt to determine the problem in the best interests of the child, family and the community,42 whereas traditionally a lawyer would see their role as advocating specifically from the instructions of the client� despite this, where detailed guidelines and protocols are put into place to assist both supervisors and students in dealing with the client and each other, the tensions between the disciplines, as well as any impact on clients, can be minimised� ongoing dialogue, both informal and formal, between the students and supervisors, case reviews and detailed orientation and training are all tools that can be used to acknowledge and understand the competing and sometimes inconsistent approaches and aims of the two disciplines� it is unrealistic to ignore the tension that might arise between disciplines of a multidisciplinary practice, but it is also not helpful to overplay it� rather, any friction in the way the disciplines approach mutual clients should be acknowledged and energy directed towards striving to work within those differences� resolving differences and overcoming any professional tensions can be achieved by the mutual understanding of one another’s professional roles and expectations 36 anderson n28 at 665� 37 id� 38 galowitz p “collaboration between lawyers and social workers: re-examining the nature and potential of the relationship of the relationship” (1999) 67 fordham l rev 2123 at 2140 39 ibid at 2141� 40 peters j “ concrete strategies for managing ethnically based conflicts between children’s lawyers and consulting social workers who serve the same client” (1991) kentucky children’s rights journal 15� 41 stanger l “conflicts between attorneys and social workers representing children in delinquency proceedings” (1996) 65 fordham law review 1123 42 ibid at 1125� multidisciplinary clinics – broadening the outlook of clinical learning 31 from those roles, having clear policies and protocols in place and ensuring that there is open communication�43 this is the key beyond any other factor� the issue of whether law students lose their “zealousness” and begin to view their professional role more holistically as a result of working with social workers or whether social workers lose their broader perspective of an issue can become minor compared to the possibility of poor or confused service delivery – which has the potential to completely undermine any attempts at a successfully functioning interdisciplinary clinic� anderson et al pose the question of whether lawyers will be “tainted” and therefore less able to properly undertake their obligations and responsibilities as lawyers, if they adopt the social workers’ approach of ‘what is in the best interests of the client’ as opposed to ensuring that a client’s decision is fully respected�44 ultimately, based on their experiences in the interdisciplinary clinic, the authors conclude that this is not likely to happen� in fact, the lawyers were able to synthesize various approaches and without compromising their fundamental obligation to the client, were able to provide their clients with more layered and informed assistance in the client making their decisions on how to proceed in their matters�45 much published work that considers interdisciplinary clinics focus on those combining lawyers and social workers46, but one of the most influential writings on multidisciplinarity in clinical legal education by schlossberg examines an interdisciplinary clinic with a small business and law focus�47 a number of interesting concerns unique to small business, as compared to social worker, matters are discussed� schlossberg gives consideration to the educational aspect of clinics for the students involved� she emphasises the differences in culture and training between different disciplines and points out that in successful social justice collaboration, emphasis must be placed on group dynamics, the value of listening and mutual respect� she also acknowledges that there is a perception that law students are arrogant and that this will impact in their dealings with other disciplines�48 some of the tensions that exist between disciplines can be explained by the difference in training and emphasis on preparation for work� whilst it may be trite to state that law schools traditionally only teach law, there is generally little focus on practical skills whilst in business school an obvious feature is the preparedness of students for working in their chosen field�49 accordingly, it is important to acknowledge that underlying tensions between disciplines may always be a characteristic of multidisciplinary clinics� what is important is the acknowledgment that such tensions exist and why – which means consideration must be given to the background 43 anderson n28 at 667-668� 44 ibid at 679� 45 ibid at 689� 46 see galowitz p “collaboration between lawyers and social workers: re-examining the nature and potential of the relationship of the relationship” (1999) 67 fordham l rev 2123; zawisza c & beckerman a “two heads are better than one: the case-based rationale for dual disciplinary teaching in child advocacy clinics” 7 fl. coastal l. rev� 631; faller k & vandervort f “interdisciplinary clinical teaching of child welfare practice to law and social work students: when world views collide” 41 u. mich. j. l. reform 121 2007-2008� 47 schlossberg d “an examination of transactional law clinics and interdisciplinary education” (2003) 11 washington university journal of law & policy 195 at 212� 48 ibid at 214� 49 ibid at 216� 32 international journal of clinical legal education issue 17 and theories underlying each of the disciplines, understanding and respecting each other’s viewpoint and contribution in achieving an outcome for a client, and having a system in place that encourages discussion and collaboration in developing solutions to problems that emerge� forging an effective alliance between organisations whilst there are different models for collaborative clinics, the question of how to best ensure a co-operative and effective clinic essentially relies on several key points� according to eckel and hartley,50 the main challenges for collaboration are for the participants to reconcile organisational goals and to develop clear and compatible expectations� central to this is the need to address the participants’ disparate sets of values and assumptions and to ensure that there is, at least, respect for the each participant’s viewpoint�51 at a practical level, the parties to the joint effort need to regularise processes and procedures and to understand and reconcile their own and their collaborating parties’ set of norms and expectations�52 when forming partnerships in a collaborative environment, the parties must develop a common set of rules which are derived from each party’s previously formulated rules� this set of rules must be embraced by both parties through negotiation� further, new rules must be created that will deal with new situations that come up as a result of the collaboration� 53 eckel and hartley’s basic premise is that where parties (usually organisations) come together in a collaborative fashion, they have chosen each other because they share common ambitions and objectives� there is recognition of the inherent tensions between the interests of the individual partners and as a collective� there is a personal commitment between the participants based on face to face interaction rather than strict adherence to policy and protocols, based on mutual trust and respect and a sense of common purpose� finally, there is the capacity and desire to establish a “shared identity” which reduces the chance for conflict and misunderstanding�54 there are a variety of models for collaborative and interdisciplinary clinics and different names given to them – interdisciplinary collaborative,55 curricular joint ventures (cjv),56 interdisciplinary clinic,57 interdisciplinary or multi-professional collaborations in transactional law clinics58 or multi-disciplinary practices,59 all of which have their own meaning as ascribed to them by the authors� despite the varying nomenclature, they all struggle with similar issues in resolving the differences and tensions between the participating parties and in creating structures and rules that better equip that venture to work effectively towards the aim of providing valuable experience to 50 eckel p & hartley h “developing academic strategic alliances: reconciling multiple institutional cultures, policies and practices” (november/december 2008) the journal of higher education vol 79 no� 6, 613� 51 ibid at 615� 52 ibid at 616� for a definition of organisational culture see 616� 53 ibid at 617� 54 ibid at 632� 55 anderson n28� 56 eckel n50� 57 see st joan n13� 58 see schlossberg n47� 59 trubek l & farnham j “social justice collaboratives: multi-disciplinary practice for people” 7 clinical l review 2000-2001� multidisciplinary clinics – broadening the outlook of clinical learning 33 the students and an improved service to the clients� amey and brown60 put forward the proposition that interdisciplinary collaborations work through three stages to achieve collective thinking on behalf of the participants� based on a case study conducted over a period of 18 months, the authors examined the creation and development of an interdisciplinary team and examined strategies, leadership, resolution of differences and conflict and setting of goals�61 the initial stage of the interdisciplinary collaboration was identified by the participants (as a group) functioning and thinking independently� each group put forward its own view as the dominant one and the leadership was traditional in the sense that it was leadership from the top down�62 the second stage was marked by the groups reaching an agreement and understanding of some of the goals and values and being more able to work parallel with one another� it also found groups, (whilst still sticking to their disciplines) more able to acknowledge the importance and contributions of the work being done by each other� the nature of the leadership altered as was demonstrated by being more facilitative and inclusive in style�63 the third stage, which the authors note was never completely achieved, would be evidenced by the groups acting as a collective and the ideas and implementation of those ideas being shared by all members� the collective would be dominant in the mindset of the participants� the interaction and dialogue would lead to new knowledge, ideas and solutions being devised and implemented, leading to fundamental change� at this third stage, challenges would only serve to make the members of the collaborative work better together through listening, learning and reflection�64 the essence of a successful alliance appears to lie in a range of factors, including the nature and philosophies of the parties concerned� values and goals need to be well communicated and shared amongst all disciplines involved in the collaboration� there needs to be the capacity to make and adapt to rules and the desire and ability to evolve together, striving to achieve particular goals� any alliance will not be without issues that need resolution, but the best path to success will necessarily require the parties to participate with a maturity that enables them to change and grow, without it being perceived as a weakness or defect when changes are made� resourcing issues there is no doubt that the costs of establishing any form of clinical program will be very substantial, even prohibitive� the simple start-up costs of a clinic that operates on a two days per week basis may be in excess of aus $100,000� there is then the ongoing commitment to both administrative and professional salaries, in addition to the myriad of outgoings required to maintain a legal office� even if there is a solid clinical infrastructure already existing, there will be costs associated with expanding clinical programs to enable a multidisciplinary practice to function effectively� we would not be the first to point out that law school deans are often not 60 amey m and brown d “interdisciplinary collaboration and academic work: a case study of the university – community partnership (summer 2005) new directions for teaching and learning (102) 23� 61 ibid at 24� 62 ibid at 25–26� 63 ibid at 28� 64 ibid at 28 – 29� 34 international journal of clinical legal education issue 17 particularly encouraging of clinical expansion,65 but as evans and hyams note, there will be many collateral outcomes of clinical programs that are especially apposite in a multidisciplinary practice – for example, research and teaching collaborations which emerge from the clinic, the increase in student satisfaction across a number of university faculties and the benefit to the university of increased benevolent interactions with the community�66 however, as schlossberg67 points out, because most academic departments or faculties are quasi independent institutions within their university, this leads to competition for limited resources and does not encourage multidisciplinary collaboration� further, questions arise as to which faculty or department should bear the brunt of sustainability� these are issues that need to be resolved before the doors open to the first client and cannot be left to be resolved “on the run”� an underutilised resource, certainly in australia, is university alumni� whilst approaching alumni for donations towards particular clinical projects may be appropriate, it is not a strategy that will ensure long-term sustainability of the multidisciplinary clinic� rather, alumni can be a great source of wisdom, knowledge and ideas and may also be of great assistance in making connections with appropriate funders� accordingly, it may be appropriate to establish a multidisciplinary clinical advisory board with members being alumni of the various university faculties involved in providing direction and support for the multidisciplinary clinic� in this regard, the clinic creates a stakeholder network68 which can be called upon to provide assistance in a multitude of ways with the ongoing sustainability of the clinic� as there are various faculties involved, it would be possible to draw upon a multitude of disciplines and potential funders by establishing such a stakeholder group� arguably, the ongoing sustainability of a multidisciplinary clinic may rely on the existence of such a group, especially if there is an external review process in place which may seek to evaluate the clinic simply on the basis of resource or cost implications� if such an evaluation is imposed upon the clinic, the ability to call upon an established alumni network for support and direction would be invaluable� this has certainly been implemented in the past with great success in established clinics�69 the way forward the clinical team of the faculty of law, monash university in melbourne, australia has formulated and commenced the implementation of a research project relating to the development of a multidisciplinary clinic� the clinic has both a service orientation and a research objective� the aim is to research whether students receive a better quality education when involved in a multidisciplinary clinic� the research will attempt to clarify whether there is a measureable difference between single service as opposed to multi-service delivery� as far as we understand, in australia it has not yet been researched (from a law faculty perspective) as to how a legal clinic can deliver more effective legal and social services� the pilot project has been created in conjunction with other stakeholders within the university (the schools of medicine, business and economics, arts, social work) who are also part of the multidisciplinary clinic pilot program at monash 65 evans and hyams, n7 at 59� 66 ibid at 60� 67 schlossberg n47 at 212� 68 evans and hyams, n7 at 79� 69 id� multidisciplinary clinics – broadening the outlook of clinical learning 35 oakleigh legal service, a well-established legal clinic which has been in operation in conjunction with the faculty of law since 1979� it is anticipated that a successful research funding grant will enable the clinical team to conduct empirical research as to the efficacy of multidisciplinary service delivery on pedagogical objectives – that is, whether there are benefits to students of a combined legal/social orientation to the acquisition of lawyering skills� further, the research aims to determine the challenges to pedagogy encountered by teachers involved in the multidisciplinary clinic and to discover how these challenges might be resolved� in this way, a multidisciplinary clinic has been established without an initial exorbitant financial outlay, as it is drawing upon a 30 year established infrastructure which only has to make minor alterations to its practices and procedures in order to enable a pilot multidisciplinary practice to commence� as such, this is a low-risk method of piloting the concept which can involve discovering the difficulties and/or benefits associated with multidisciplinary practice and resolving them, prior to committing large resources to establish and sustain a purpose-built clinic� based on the results gained from the pilot project and as part of the monash university faculty of law long term vision, it is hoped ultimately to establish a new integrated clinical services suite70� this would be presided over by the faculty of law as a permanent multidisciplinary clinical practice and would provide a holistic legal, medical and financial-related advice service to low income clients� clinical services would be delivered through supervised later-year students of the faculties of law, medicine, business and economics and arts, with services made available to non-english speaking clients/patients through a partnership with students studying language translation and interpretation� by focusing on assisting low income clients/patients and meeting their needs in a fully coordinated manner, academic staff and students involved in the practice would deliver ‘whole of person’ services to the community on a permanent basis� conclusion legal educators ignore the changing landscape of the legal system to their students’ peril� the need to understand team work and to function professionally in a multidisciplinary environment is an essential skill for today’s law graduates� as discussed above, there are a number of issues, both ideological and practical, which require resolution in order to establish and maintain an effective multidisciplinary service� these issues are not insurmountable, but they require identification and open communication in order to resolve them� the writers maintain a robust belief that law students will derive educational advantage from participating in a multidisciplinary setting� however, direct empirical evidence is needed to put that belief to the test� our expectation is that the monash university faculty of law multidisciplinary clinic pilot project will provide the data to demonstrate the pedagogical value of students incorporating multidisciplinary ideologies and practices in their clinical work� if results are positive, as expected, we would hope to make multidisciplinary practice in clinical legal education the rule, rather than the exception� these changes are timely, given the transformations 70 idea proposed by dr� adrian evans, associate professor, faculty of law, monash university 36 international journal of clinical legal education issue 17 in ideology and practice being experienced over recent years in the australian legal system� these changes are also necessary in order for law graduates to be better equipped to practise effectively in a changing legal environment� 101101 foreword foreword welcome to issue 18 of the journal. international journal of clinical legal education conference july 2012 my thanks again to all those who attended this conference (all 185 of you from 22 countries)� it was our most successful conference to date with a huge diversity of papers and experience from across the globe� the theme of the conference was: entering the mainstream: clinic for all? my growing sensation is that clinical legal education is now gaining momentum such that one day clinic may well be available to the majority of students – whether we see the methodology pervade the law curriculum as much as some hope for, remains to be seen� i am busy considering all of the papers that were submitted after the conference and it is clear that there will be a rich conference journal to publish early in the new year� aside from the usual benefit of formal and informal discussions about our teaching, i and many others particularly enjoyed the ceilidh� international journal of clinical legal education conference, griffiths university, brisbane, 15–18th july 2013 professor jeff giddings and i are busy arranging this conference as i write� the theme of the conference will be “common ground” and we hope to explore cross cultural and cross model sharing of best practice in experiential legal education� we have secured keynote speakers: professor leah wortham and professor catherine klein from the us with their extensive experience in clinic across the world; professor ernest ojukwu from the nigerian law school, a key figure in the hugely successful recent rise of clinic in nigeria and professor stephen billett of griffiths university whose research is in the fields of vocational learning, workplace learning and conceptual accounts of learning for vocational purposes� professor billett’s presence is an indication of our desire to learn from and with those outside of legal education – a desire shown increasingly in the pages of this journal in relation to interdiscplinary clinics (two of the papers in this issue are on this theme)� a call for papers will have been sent by the time you receive this journal and i encourage as many of you as possible to join us in australia for what promises to be a very lively and interesting conference� european clinical network of clinical legal education (encle) as notified in an email to our international network, several european clinicians including myself, met recently in poland and agreed to form encle� encle’s mission is to support the growth and quality of cle programmes in europe through facilitating transnational information sharing, fostering research on cle, convening conferences, workshops and training sessions, establishing a website as an open resource for information sharing and promoting collaboration between cle programmes and legal professionals� all those practising clinical education in europe are invited 102 international journal of clinical legal education issue 18 to join and can email encle�info@gmail�com for more details� a strong european network will also assist the growth of clinic internationally� in this issue in “autonomy-masterypurpose,” professors wortham, klein and blaustone examine intrinsic and extrinsic motivation in students� they argue that those law students who rely on extrinsic motivation through law school (particularly the competitive pursuit of the top grade in the class) and beyond are likely to feel unfulfilled as lawyers whereas those who are intrinsically motivated (foucusing on personal growth, close relationships and helping others) are likely to be more satisfied with their lives, more creative and better functioning as lawyers� one crucial aspect of intrinsic motivation is student autonomy� the authors elaborate on pink’s application of autonomy to the business setting to describe how clinical teachers can pursue autonomy supportive teaching� the paper also looks at mastery and provides a powerful restatement of the role of reflective learning in achieving mastery and the power of clinic to give students the opportunity and tools to become reflective practitioners� the paper is not merely a paean to clinic however� the authors indicate ways in which the clinical teacher can provide reflection opportunities which develop the student’s learning process� clinical teaching has the capacity for achieving autonomy and mastery but care must be taken over the pedagogical process� as editor of the journal i very much welcome papers such as this one that consider theories of learning and their application in the clinical setting� professors lisa bliss sylvia caley, and robert pettignano examine the health law partnership at georgia state university in their paper� the paper posits that interdisciplinary projects promote co-learning, holistic problem-solving and community building for young professionals� it is clear from the article (and from other articles published and to be published in this journal) that public health legal services are a growing phenomenon that are more capable of attacking the social determinants of ill health for vulnerable members of society while providing a rich learning experience for all of the professionals and students involved� the paper gives useful examples of how the partnership can function and some of the challenges that are encountered� paula galowitz also reports on an interdisciplinary clinic� her article provides some very useful sources of inspiration for the many interdisciplinary clinics springing up around the world� it is interesting that in both papers in this journal on this subject, students were able to identify significant commonalities between their respective professions and broaden their perspectives as to each other’s roles� it is particularly clear from this article how valuable seeing the patient/client from a different perspective can be� rachel spencer considers some of the vast literature on reflection in her paper “holding up the mirror�” while there is a wealth of literature on the subject, many clinicians will recognise that teaching reflection is no simple matter� spencer rightly looks beyond the field of clinical legal education into other fields such as medicine, nursing and social work where much has been written on the subject� the appendices to the article include many interesting approaches to reflection 102 103 and, at appendix g, the marking criteria for a reflective portfolio at the university of south australia� my colleagues at northumbria, particularly kevin kerrigan and carol boothby, have been working to describe student performance for our criteria in this area and it is interesting, and useful to us, to see a similar process in australia� street law in malaysia is the focus of asnida suhaimi and nur zulkifli’s paper: “street law based cle: a student-impact –assessment�” the paper considers the history of street law at the university of malaya and a short survey to determine the motivation of students who took part and the skills they believed that they had learned� it is interesting that the authors report that while students clearly believed that many of their interpersonal skills and other “soft” skills had been improved a larger majority (79%) believed their academic performance had been improved by this extra-curricular activity� c benjie louis looks at clinical teaching for a new supervisor� in “reflections upon transitions: an essay on learning how to teach after praticing law,” he considers not only this but his reflections on unique lessons for a clinician of colour in the us and provides a set of 5 core tools he argues would be useful to any new clinician� the reflection is a personal one in the main but many of the experiences and lessons that are described can be encountered in live client clinics across the world and the tools suggested can be useful to clinicians, old and new alike� i look forward to seeing many of you in australia in 2013� jonny hall editor 104 international journal of clinical legal education issue 18 special issue: european network for clinical legal education 6th conference “networking: a (un)necessary evil in an unsettled market?” kerry trewern and rhona mcnair[footnoteref:1], school of law, university of glasgow, scotland, uk [1: kerry trewern and rhona mcnair are director and deputy director respectively of the diploma in professional legal practice at the university of glasgow, scotland. both spent a number of years in private practice with large national and international legal firms, before becoming involved in legal education.] introduction clinical legal education (cle) involves training the solicitors of tomorrow to be the best they can be whilst acting ethically and with integrity. as educators, one of the ways we do this is by simulating the professional environment for our students as much as possible, for example by using real-life scenarios in our teaching and by encouraging participation in pro bono legal clinics. however, when our students leave higher education and join the workforce, a key skill they will be expected to have attained by employers is that of networking. this is because, in the current marketplace, it is no longer enough for lawyers to be able to understand and apply the law to complex situations. they also need to be able to get along with clients, colleagues and other lawyers – and help their employers win and retain business. networking can be an unpopular concept, and an anxious prospect for many of our students. yet the very act of working with peers under the guidance of legal practitioners as part of cle is, technically, networking. student engagement with our various workshops, competitions, pro bono offerings and social events fall into the same category. since so much of cle therefore involves networking, and since it is highly valued by employers, is networking any different from the other vital skills taught in cle, such as drafting or advocacy? seen in this light, are we doing our students a disservice if we don’t teach them how to network properly? and if networking is something that ought to be taught, what teaching methodology/ies should we employ in doing so? to explore this theme, we will consider the role that networking plays in the diploma in professional legal practice (dplp) at the university of glasgow. the dplp is a one year, vocational postgraduate course regulated by the law society of scotland and designed to prepare scots law students for legal practice, and our student numbers at the university of glasgow range from 150 to 200 each academic year. our students go on to complete a two year traineeship either in-house or in a private law firm. we will examine networking in the context of the scottish legal community. this community is relatively small and so, given many of our practitioners are actively involved in cle in one way or another, how students network can have a huge impact on their career in a short timeframe. we will also examine networking in the context of an unsettled market and political climate. what is “networking”? networking is an amorphous concept. some studies suggest that it originated in britain during the industrial revolution in the late 18th and 19th centuries, as businesses could expand more rapidly and it was “not enough to develop a few partners and customers then work with them for the rest of your life, as often happened with simple artisans and craftspeople” [footnoteref:2]. its original focus was on capitalising on existing business relationships and building new ones, but in the 21st century the meaning has expanded to include research peers meeting each other to exchange ideas, parents meeting to share child-rearing tips… there are endless permutations. indeed, the oxford english dictionary defines a “network” as “a group of people who exchange information and contacts for professional or social purposes”. a colleague, however, once described it as “the worst part about being a lawyer…”! [2: http://changingminds.org/disciplines/networking/networking_history.htm ] our interpretation of “networking” in the context of cle simply means students meeting with each other, their tutors and other legal professionals, and beginning to grow relationships that will (hopefully) assist and advance their career. why does networking matter? as well as networking being an opportunity for students to build professional links that should stand them in good stead in their personal careers, it is also one of the tools students need to enable them to maintain and even help grow their firm’s business when they join the legal profession. the ability to speak to people, be interested in them (and come across as such), ask questions, hold conversations, is (or should be) at the heart of what lawyers do because law is, essentially, a “people business”. people do business with people, and clients want lawyers who are not only excellent at the legal element of their job but who are decent and personable. particularly in an uncertain market in which law firms are increasingly competitive on price, it is strong lawyer-client relationships that can make or break a pitch or fee negotiation, and can encourage a client to stay or to take their business to a different firm. the ability to forming solid relationships with clients as early and as effortlessly as possible therefore sets trainees apart from their peers and pegs them as “ones to watch”. in addition, there’s never a guarantee that a trainee will be kept on by their training firm or organisation, a particular issue in scotland where there are more qualified solicitors than there are jobs. skill in networking directly leads to client popularity, and by honing this skill early on, students are making themselves that bit more indispensable to their employers through helping them maintain and grow their client base. the aforementioned uncertain scottish legal market, driven by our current political and financial climate, provides additional context for student networking: brexit v globalisation at the time of writing, it is anybody’s guess how brexit is going to impact on the legal market long-term – but what is certain is that the short-term uncertainty is unsettling, for law firms and their clients. in contrast to the uk’s exit from the eu, we are seeing increasing globalisation, as one by one scotland’s oldest law firms are absorbed by larger international firms. in 2014, only 5 years after celebrating 250 years in business, renowned scottish law firm dundas & wilson merged with international firm cms cameron mckenna. similarly, mcgrigor donald became part of pinsent masons in 2012, and most recently, maclay murray & spens merged with dentons in 2017. further, the recent recession has resulted in fewer job opportunities in-house, whether in government departments, large businesses or financial institutions. whilst the future of what is left of scotland’s independent law firms will be interesting to watch in light of this trend, what is certain is that tomorrow’s lawyers will need to be adaptable, flexible and resilient – and will need to be able to build strong relationships quickly with people (peers, clients, potential employers) the world over. what is that, if not networking? scottish independence scotland voted to remain in the uk in its 2014 referendum. despite this, and largely due to how scotland voted in the brexit referendum when the results are considered from a geographical perspective, a second independence referendum cannot be ruled out at some point in the (near) future. whatever the views of scottish lawyers on scottish independence, there can be little doubt that a further referendum would result in further uncertainty. again, though, it is the lawyers who can build and maintain strong client relationships that will be better able to withstand whatever the result may be. changes to qualification route in england a major cle issue south of the border is the forthcoming change to the route to legal qualification in england and wales. the solicitors regulation authority (sra) is introducing a new, centralised assessment for all prospective solicitors. this new approach involves an overhaul of the current system, which more closely mirrors the scottish system (law degree, diploma, two year traineeship). prospective solicitors in england and wales will no longer be obliged to study particular courses or subjects and, instead, will simply have to pass what the sra suggests will be a rigorous assessment. the law society of scotland, our sra equivalent, has said that is has no current plans to follow the sra’s approach, but is nevertheless watching with interest – as are scottish legal educators and practitioners. and where our english counterparts go, we sometimes follow. networking: our approach on the dplp networking has always played a large part in the dplp at the university of glasgow. since we joined as directors relatively recently (2016/17), we have retained a focus on networking, but approached it from a more informal perspective in an attempt to make it slightly less intimidating for students and to encourage participation. below are examples of this change of approach, as well as statistics on its success, gleaned directly from student feedback. introductory week at the beginning of the academic year, our students join us for an intensive week of workshops aimed at helping them transition from the academic undergraduate law degree to the vocational, practical dplp – a transition that can, understandably, be slightly intimidating for some. in addition, our students come from universities across scotland, therefore many of them have not only moved to a new city but have left their existing friendship groups behind. to help our students not only feel at home at the university of glasgow (and in glasgow more widely) but to begin to make new friendships – and therefore to begin to build their network – from day one, we have incorporated the following changes into introductory week: · in 2017/18, we introduced a drinks event at the end of introductory week, giving students a chance to get to know each other and the dplp team; · also in 2017/18, we created a “treasure hunt”, putting students into teams of 12, with each team containing students from all home institutions. teams had until the end of introductory week to follow clues and complete challenges around the university and local area, with a mock “awards ceremony” held at the closing drinks event; and · in 2018/19, we adopted a conference-style approach and held the morning of introductory week, when all our students are together for the first time, in a local hotel. this allowed us to seat students in their treasure hunt teams, facilitating introductions and encouraging networking at the earliest stage possible – which we had found was more difficult to achieve in the usual classroom / lecture theatre setting in 2017/18. we surveyed our students at the end of the academic year in 2017/18, and found that 65% felt the networking during introductory week was useful. we still have some way to go, but hope that the additional changes made in september 2018 for the 2018/19 cohort will lead to even more positive feedback. glasgow legal network the glasgow legal network (gln) is a network of scottish legal professionals from all areas of practice and at all levels of qualification, from trainee to partner, in-house lawyer to judge. the practitioners involved not only have an interest in cle, but are passionate about student development and fully support students being given the opportunity to practise their networking skills with them. as such, we invite all members of the gln to come and meet our students over drinks and canapés once per semester. although always an excellent initiative, we have recently relaxed the dplp’s approach to the gln as follows, with the aim of making it more appealing to students: · attendance is no longer compulsory; · we no longer enforce a dress code or require our students to wear name badges; and · we schedule gln events on days when the majority of the cohort are on campus for classes, making attendance more convenient. these changes have had a positive effect. in the past, when attendance, business dress and name badges were compulsory, some students would simply turn up for two minutes to sign in, look uncomfortable and leave! having relaxed the approach, feedback suggests that more students are willing to attend, given the more laid-back environment. indeed, numbers increased (which is surprising, given it was supposed to be “compulsory” in previous years!). one student said that they “attended the first event and thought it was fantastic was able to mingle and meet great contacts”, while another suggested it was “good fun and a useful way to meet legal professionals”. mentoring we have introduced a mentoring scheme, whereby we connect students with legal professionals in their chosen field of interest. once we have facilitated these connections, it is over to the student and their mentor to arrange whatever suits them, ranging from phone conversations or meetings over coffee, to cv advice, to work shadowing. this works best when students (and the mentors) put in effort. one student said that the scheme was “insightful” and that they “gained a good contact for the future”. competitions we participate in the international client consultation competition (iccc) and the international negotiation competition, running heats for dplp students and coaching our own finalists for the scottish and, when successful, international finals. in april 2018, the university of glasgow’s dplp team came second in the international final of the iccc – a phenomenal opportunity for our finalists to meet and network with peers from all over the world, as well as the judges and organisers of the competition. building on this success and to further enhance student opportunities for skills development, including in relation to networking, we entered the uk mediation competition in 2018/19. we were delighted to take joint first place and will be hosting the 2019/20 event, another excellent chance for our students to put their networking skills to good use. pro bono pro bono work, such as legal clinics, obviously has innumerable benefits for students and for the community they serve. specifically considering the networking perspective, it is clear that working for “clients” under the supervision of qualified legal practitioners is an invaluable opportunity for students to practice their networking skills. at the university of glasgow, we do not run a “traditional” law clinic. however, we have a number of initiatives under the umbrella of glasgow open justice or “go justice”. opportunities include placements and work experience opportunities with charitable partners, e.g. shelter scotland or the citizens advice bureau. dplp students also have the option to take part in our corporate law advisory support project (“clasp”). clasp allows dplp students to provide advice to student start-up businesses. the university of glasgow has a flourishing business school, where numerous students are entrepreneurs and keen to set us new businesses. our students, under the supervision of qualified solicitors, meet with these clients and offer support and advice, making them “lawyer-ready”. general queries involve which business vehicle to use and clarification on the business’s intellectual property rights. we have plans to expand clasp to include advice on employment law, as many of the clients require support in that area. feedback from students who have taken part in clasp is positive. from a networking perspective, our students gain huge benefits from their involvement. tutors and peers all dplp teaching is carried out by qualified, practising scottish solicitors. class sizes are limited to 12 students per tutor, and the practical nature of dplp teaching means that each of our students has the chance to not only learn from, but to get to know, experts in a variety of legal fields. each year, at least one student is offered work experience by a tutor, and often this converts into a two year traineeship – opportunities that would not have arisen for these students if it weren’t for the strong relationships they had built with their tutors. similarly, students network from day one on the dplp, working with their peers on a daily basis and building strong relationships from the outset. there are also a number of committees with which our students can get involved. some are student-only (e.g. our social committee and social media committee) and some involve staff (e.g. our dplp committee and staff student liaison committee), but all provide an opportunity for students to extend their networks. given the changes implemented, we are keen to obtain feedback from students on a regular basis. we were delighted to note that 86% found diploma networking events useful in general in 2017/18 – an increase of 45% on 2016/17. given the positive feedback our networking-focused initiatives are receiving from students, and the impact they are therefore having on the student experience, we will be continuing to develop these initiatives as well as new ones, and continuing our informal approach, for future cohorts. pedagogical perspective as demonstrated above, networking is an integral part of the dplp and, we would argue, cle more broadly. but this begs the question: can networking be taught? should it be? if it should, then how should it be taught? and taking this one step further: can, and should, networking be assessed as part of cle? we raised these questions at the 6th encle conference, clinical legal education: innovating legal education in europe. they inspired many of our peers at that conference to discuss their approaches to student networking with us, and engendered healthy debate on best practice. the consensus seemed to be that whilst there is certainly a place for networking in cle, whether it can actually be taught is less clear. teaching networking? from our perspective on the dplp at the university of glasgow, we are teaching networking – but our students don’t necessarily realise that this is the case. networking is embedded on the dplp. our students start to build their network from their very first day with us, and develop it throughout the course through group and class work, involvement in competitions and committees, and attendance at our networking events. however, we do not provide any lectures or workshops on “how to network”. nor is there any coercion to attend networking events, meaning there is little resentment from students. instead, we foster a safe, non-judgmental environment and, from there, encourage networking skills to develop naturally through the various opportunities we present daily to students for practising them. this is because we believe that best practice on a vocational, professional course such as the dplp must always be that the best way to learn is by doing – and it is no different with networking. we further believe that our informal approach, and the environment we create, enables even our more introverted students to begin to embrace networking. assessing networking? the dplp requires all students to be assessed on their in-class participation, as well as their professionalism in their relationships with peers and tutors. does this mean that we are assessing networking? in some respects, we are assessing it indirectly. however, we do not necessarily believe that networking should be directly, formally assessed as part of any cle programme. it is difficult to imagine introducing an assessment whereby we create a mock networking event, hire actors to play “clients” and then grade our students on how well they get on with them. our view – based on what has been a success for us on the dplp – is that it is better to wrap any assessment of networking into a broader assessment of student participation in the subject matter and professionalism towards others. conclusion our experience, and our discussions with our peers at the 6th encle conference, leads us to the view that networking is a necessary evil from a cle perspective. however, that does not mean it has to be an intimidating chore for students – and we believe we can avoid it being so by adopting the dplp’s model of encouraging students to practise networking skills in a relaxed, non-judgmental environment. 222 practice report enhancing legal aid through university law student engagement: a case study of ebsu law clinic model cosmos nike nwedu[footnoteref:1], federal university ndufu-alike ikwo, nigeria [1: cosmos nike nwedullm (uk), bl, llb (nig.) is a solicitor and advocate in the supreme court of nigeria and a lecturer at federal university ndufu-alike ikwo (funai)] abstract the provision of legal aid to underprivileged and vulnerable citizens who could not have ordinarily been able to provide for self legal representation and access to the court system is infrequent in many societies today, especially in most developing countries. there is also an observed non-inclusiveness in the delivery of legal aid. these have starkly resulted to a gap that impacts administration of justice negatively. however, the emergence of clinical legal education (cle) at different law schools and universities around the world becomes a remedial approach both to increasing the consistency and breadth of legal aid activities, including promoting inclusiveness. cle is gradually assuming a great height of unprecedented importance and progress in academic curriculum globally. many universities and law schools have begun to incorporate law clinics into their educational curriculum not just as an essentially approved aspect of their legal education or a novel course of study that involves different pragmatic approaches of engaging law students on learning, but also as a practical mechanism for providing unmatched pedagogy that focuses on diverse lawyering skills successively maximized in providing free legal services to those citizens whose survival depends on the public mercy. this paper discusses how the engagement of university law students from cle perspective helps to enhance the provision of legal aid to underprivileged and defenseless citizens. consequently, ebonyi state university (ebsu) law clinic model is used for a methodological case study analysis to that effect. ebsu is a state university in nigeria and has effectively run its law clinic since inception till date, combining both empirical and theoretical approaches in providing pro bono oriented legal services to unprotected nigerians. the paper further examines the modus operandi of the ebsu law clinic and highlights significant reasons why the clinic stands to be a reference practice model. 1. introduction the provision of financial support or other legal services usually by government in the form of legal aid to underprivileged and vulnerable citizens who could not have ordinarily been able to provide for self legal representation and access to justice remains an inevitable core component of the justice system and of course the foundation of cle particularly in the modern society. the notion of legal aid in principle underpins four cardinal principles: unrestricted access to the court system, equality before the law, the right to counsel, and the right to fair trial. these fundamental principles have been unmistakably articulated in a wide range of supreme national and international laws. although a variety of cases ranging from criminal to civil can receive legal aid, what really constitutes a legal aid may differ from country to country especially in terms of the nature of cases and qualifications of those who receive it. for example, the primary rule within england and wales in the united kingdom (uk) is that a recipient of legal aid in non-criminal matters will not have earned above the gross income of £2,657 monthly.[footnoteref:2] in nigeria, the extent of legal aid and access to justice delivery encompasses three major areas that include criminal defense service, advice, assistance and legal representation in civil cases and community-based legal services for which legal aid recipient will not have earned an income exceeding national minimum wage,[footnoteref:3] save in exceptional circumstances as encapsulated under the legal aid act.[footnoteref:4] additionally, case determination as to qualification for legal aid is generally subject to the test of merit and proof of indigeneship in nigeria. whereas the need for legal representation and access to the court system anywhere in our contemporary time calls for support of mainly the poor people irrespective of the nature of the crime allegedly committed, perhaps, it is also pertinent to consider legal advice to the needy and the rich as an essentially prerequisite of legal aid delivery services since both may lack the mental and intellectual abilities desirable to seek the right direction for legal representation and access to justice in-spite of their income levels. most importantly, timeous representation of these people is the key exceptionally upon being suspected or accused of committing a crime, mindful of the need to guarantee absolute presumption of innocence. [2: the civil legal aid (financial resources and payment for services) regulations 2013, section 7 (1) (b) (entered into force on april 1 2013) ] [3: the current basic national minimum wage (nmw) for employee salary earners in nigeria is 18,000 thousand nigerian naira per month equivalent to $57 us dollar. see nigeria’s national minimum wage (amendment) act 2011 ] [4: legal aid act 2011, act no. 17, articles 8 (1) and 9(2) respectively] however, it is noted with dismay that the delivery of legal aid to citizens ensnarled by extreme pauperism is in a measure in many societies, specifically in the developing countries and this has taken a continuous decrease. the reason for this is not far-fetched. it has become a tradition to see government as the only right institution to offer legal aid by way of monetary help to citizens whose financial status makes it practically impossible for them to access the court system and be represented in a court case. this has resulted to many negative effects hampering the administration of justice mostly the congestion of prisons, excessive courts caseloads, including the marring of equality before the law in some jurisdictional settings. for instance, a statute[footnoteref:5] introduced in the uk in 2012 has been widely criticized because, it undermines free legal services as it cuts legal aid budget by £350 million.[footnoteref:6] the implication of this can lead to non-inclusive representation of people that deserve free legal support within the regions. [5: legal aid, sentencing and punishment of offenders (laspo) act, 2012] [6: see, ‘legal aid: why equality before the law no longer exists in the uk in 2016’ (lawcareers, 01 february 2016) <http://www.lawcareers.net/information/features/01022016-legal-aid-why-equality-before-the-law-no-longer-exists-in-the-uk-in-20> accessed 01 may 2017] against the common perception that the provision of free legal representation and access to justice remains within the exclusivity of government responsibility and sometimes to includes non-governmental organisations (ngos), we must understand that such does no longer align with the legal demands of the contemporary society. this eccentricity falls out of the context of modern justice education (jed) and as such, inhibits the streamlining of the traditional notion of legal aid. the emergence of cle has, therefore, come to aid mainly as an innovative socio-legal tool for university and law school students in enhancing legal aid. the general purpose of this paper is focused on the discussion of how ebonyi state university (ebsu)[footnoteref:7] law clinic model promotes effective legal aid that underscores the preceding four cardinal principles to the indigent and vulnerable citizenries in nigeria within the framework of cle. the paper is divided into 5 sections of which section 1 is on introduction. section 2 discuses cle as a tool for enhancing legal aid while section 3 takes a look at the overview and the modus operandi of ebsu law clinic. section 4 discusses why the clinic is a practice model for a case study. finally, section 5 draws a conclusion. [7: ebsu is a multi-disciplinary state university created by ebonyi state university law no. 7 1999, with its faculty of law located at the former college of agricultural science (cas) campus in abakaliki, the capital city of ebonyi state. the ebsu law clinic, founded by the former and current dean of the law faculty professor amari omaka c. now a senior advocate of nigeria (san) is a general interest legal clinic for law students of the university’s law faculty <http://ebsu-edu.net/history-overview/> accessed 6 may 2017 ] 2. clinical legal education-a tool for enhancing legal aid? the delivery of legal aid at different levels around the world has become an important development so much that the present meaning and scope ascribed to it has become dynamically broader like never before. firstly, it is now crystal clear to understand that charting legal aid causes does not only involve governments, it also includes higher institutions of learning where law is taught as a professional course. secondly, it is noted that other organisations such as civil societies or ngos, including non-profit or profit-based private organizations like law firms alike voluntarily provide free legal services to those citizens whose survival depends on the public mercy. it is by this understanding that the actual role of lawyers in the society reflects the real essence of legal education on one hand whereas on the other hand, the actual role of law schools and universities then reflects partly in their students engagement towards delivery of free clinically-based community services, in either sense, for the pursuit of social justice in the society. this establishes a strong interface between legal education, legal aid and social justice[footnoteref:8] that meets increasing legal calls of the modern society. [8: ibijoke patricia byron, ‘the relationship between social justice and clinical legal education: a case study of the women’s law clinic, faculty of law, university of ibadan, nigeria’ (2014) international journal of clinical legal education, 20(2) 531-646] indeed, cle is gradually assuming a great height of phenomenal importance and progress in academic curriculum globally. many universities especially modern ones[footnoteref:9] and law schools alike have begun to incorporate law clinics not just as an essentially approved aspect of their legal education[footnoteref:10] or a course of study that involves different approaches of learning,[footnoteref:11] but also as a practical mechanism for providing unmatched pedagogy that focuses on different lawyering skills to law students[footnoteref:12] and which they in turn maximize in providing realistic legal aid to indigent and vulnerable people. it is not doubtful whether cle has come to stay. nevertheless, its sustainability demands a match of innovative ideas that would mirror the realities of our time, environments, needs, and divergent legal systems. there is need to synthesize old ideas for a broad-based new justice initiatives. to achieve this literally means we must look beyond the normal learning environment. our definitions of the subject must also transcend parochial thinking for a deeper understanding that truly appreciates it as a tool for enhancing legal aid as opposed to definitions that only appreciate cle as a mere learning process. for example, as quoted in emil winkler, grimes defined law clinic to mean, [9: nicola antoniou and patrick hassan-morlai, ‘live client clinics: bridging the gap’ (2014) international journal of clinical legal education, 21(2) ] [10: william pincus, clinical legal education for law students (new york, 1980) 467. see also richard j. wilson, ‘training for justice: the global reach of clinical legal education’ (2003) penn st. int’l l. rev. 22, 421 ] [11: mark spiegel, ‘theory and practice in legal education: an essay on clinical education’ (1987) ucla l. rev. 34, 577 ] [12: binny miller, ‘give them back their lives: recognizing client narrative in case theory’ (1994) mich. l. rev. 485. see also robert d. dinerstein, ‘client-centered counseling: reappraisal and refinement’ (1990) 32 ariz. l. rev. 501; philip f. iya, ‘legal education for democracy and human rights in the new south africa with lessons from the american legal aid movement’ (1994) j. prof. legal educ. 12, 211 ] ‘a learning environment where student identify, research and apply knowledge in a setting which replicates, at least in part, the world here it is practiced…. it almost inevitably means that the student takes on some aspect of a case and conducts this as it would… be conducted in the real world.’[footnoteref:13] [13: r. grimes, ‘the theory and practice of clinical legal education’ (1996), in j. webb and c. maugham (eds.) teaching lawyers’ skills, 138.] this definition no doubt lacks one of the sacrosanct pillars of cle, but instead succeeded in accentuating the scholastic constituent of it, forgetting that legal aid is the foundation of a law clinic. in like tension, woodruff and bucker argued that, ‘clinical legal education is a method of training law students by putting them in situations where they must apply the legal theory, principles, and doctrines they have studied in a class room setting.’[footnoteref:14] this is a far weaker definition, as it perceives cle a replication of typical classroom knowledge of law in the legal practice. these foregoing definitions have not only direct implications on the broader understanding and application of cle; they also have correlated impacts on the delivery of legal aid within the framework of jed for transformative social justice. while that is the case, some authors have certainly attempted to offer thicker explanations of cle. one of such attempts comes from jeff giddings who argued that, [14: william a. woodruff and andreas bucker, ‘the bologna and german legal education: developing professional competence through clinical experiences’ (2008) german l.j. 9, 575. ] ‘clinical legal education involves an intensive small group or solo learning experience in which each student takes responsibility for legal or law-related work for a client (whether real or simulated) in collaboration with a supervisor. structures enable each student to receive feedback on their contributions to take the opportunity to learn from their experiences through reflecting on matters including their interactions with the client, their colleagues and their supervisor as well as the ethical dimensions of the issues raised and the impact of the law and legal processes.’[footnoteref:15] [15: jeff giddings, promoting justice through clinical legal education (justice press, 2013) 14] although giddings’ definition to a great extent focused on the learning side, it is at minimum contemplative of a wider understanding with an implied assumption suggestive of client-based legal aid and is rooted in the understanding that cle is a progressively important tool driven by student-clinicians together with university law professors, and or teachers to providing hands-on skills for law students in rendering varied free legal and civic services in the society.[footnoteref:16] [16: james marson, adam wilson, and mark van hoorebeek, ‘the necessity of clinical legal education in university law schools: a uk perspective’ (2005) international journal of clinical legal education 7, 29-43 (2] better still, emil winkler simply argued that law clinic is, “a combination of practical legal education and legal aid.”[footnoteref:17] and subsequently broadens his definition in the following words, ‘the term clinical legal education or law clinic, traditionally refers to a nonprofit law practice usually serving a public interest or a group in the society that are in a underprivileged or exposed situation and (for various reasons) lack access to legal system.’[footnoteref:18] he further reasoned that law clinic could involve almost everything of student initiatives accomplished on extracurricular basis that is completely disconnected from the usual school premises to an ordinary part of a university clinical programme.[footnoteref:19] winkler’s definition is indeed apt, broad-based and has equally captured the historical rationales of cle by setting a platform for current and future researchers to articulate beyond the ordinary perception of theory, even beyond a practice that has not straddled the area of free legal service delivery to the community. he has certainly severed cle from a hidebound perspective and projected it in a spectacular forward-looking encircling image of social justice because the non-profit or pro bono aspect of a university cle is indispensable and lies at the heart of every legal clinic. cle per se is not legal aid, but it is the tool for enhancing legal aid and without which cle in the twenty-first century onwards would fall short of adequate meaning and relevance across the world. [17: emil winkler, ‘clinical legal education: a report on the concept of law clinics’ <http://law.handels.gu.se/digitalassets/1500/1500268_law-clinic-rapport.pdf> accessed 10 may 2017] [18: ibid.] [19: ibid.] the european network of clinical legal education (encle) has offered one of the most embracing and inspiring definitions of cle. according to it, ‘clinical legal education is a legal teaching method based on experiential learning, which fosters the growth of knowledge, personal skills and values as well as promoting social justice at the same time. as a broad term, it encompasses varieties of formal, non-formal and informal educational programs and projects, which use practical-oriented, student-centered, problem-based, interactive learning methods, including, but not limited to, the practical work of students on real cases and social issues supervised by academics and professionals. these educational activities aim to develop professional attitudes, and foster the growth of the practical skills of students with regard to the modern understanding of the role of the socially oriented professional in promoting the rule of law, providing access to justice and peaceful conflict resolutions, and solving social problems.’[footnoteref:20] [20: encle, definition of a legal clinic <http://encle.org/about-encle/definition-of-a-legal-clinic> accessed 10 may 2017] of all the definitions above, the encle offers what is likely the current broadest meaning of cle and as such, provides a working definition for this study. the definition captures two roles of cle: proactive and reactive functions. while the former focuses on activities that equip contemporary student lawyers with theoretical knowledge for offering preventive solutions to societal problems and ensures law students gain advance practical insights of how the law works through learning-by-doing approach especially in understanding justice hurdles and how to defeat them,[footnoteref:21] the latter is concerned with applying both the knowledge and practical skills gained in responding to the actual prevailing needs of disadvantaged citizens in the society. this is how cle fosters social justice, legal aid, and increased access to justice for all via the engagement of university law student-clinicians on varied justice initiatives. [21: orla drummond and grainne mckeever, ‘access to justice through university law clinics’ (ulster university law school 2005) 60. see also anthony g. amsterdam, ‘clinical legal education-a 21st century perspective’ (1984) j. legal educ. 34, 612 ] as the historic rationale of cle has evolved in the united states due to the need for social justice campaign to offer pro bono-based legal services to the poor,[footnoteref:22] its use has accordingly transcended the shore of developed nations to becoming a food for thought in developing countries.[footnoteref:23] cle has morphed into a modern global legal instrument that reveals students desire to stir social change.[footnoteref:24] to this extent, it can be utilized as an inclusive practical approach to unearth and address a myriad of untold societal problems and proffer solution to them for the betterment of humanity anywhere in the world. overall, cle fosters legal aid and increases access to justice for all by engaging university law and law school students on wide-ranging justice initiatives. [22: judith dickson, ‘clinical legal education in the 21st century: still educating for service?’ (2000) int’l j. clinical legal educ. 1, 33 ] [23: philip f. iya, ‘fighting africa’s poverty and ignorance through clinical legal education: shared experiences with new initiatives for the 21st century’ (2000) journal of clinical legal education 1, 13-32 ] [24: richard a. boswell, ‘keeping the practice in clinical legal education and practice’ (1992) hastings l. j. 43, 1187. see also alan a. stone, ‘legal education on the couch’ (1971) harv. l. rev. 85, 392 ] 3. the ebsu law clinic model-an overview the ebsu law clinic is housed and run under the faculty of law of ebonyi state university, abakaliki-ebonyi state, nigeria. while the faculty board approved the clinic in 2005 for the delivery of cle programme, it was not until june 2006 that it received ebsu senate endorsement.[footnoteref:25] the clinic was also registered in the same year as a member of network of university legal aid institutions (nulai),[footnoteref:26] making it one of the experimental law clinics in nigeria.[footnoteref:27] the ebsu law clinic was further raised to a directorate in 2008 by the university management immediately after one year of the formal approval and given its historic performance in cle, the council of legal education of nigerian law school (nls) rated it as a center for quality cle.[footnoteref:28] thus the clinic within a short period of inception achieved a sharp remarkable ascension into repute. the status quo of this fame has remained consistently uncompromised and has been equally marked by steady improvement in attending to diverse justice needs of the disadvantaged people. [25: ernest ojukwu, odinakaonye lagi and mahmud yusuf, ‘compendium of campus based law clinics in nigeria’ (2014) nulai nigeria, p. 10 < http://www.nulai.org/index.php/media1/downloads-resources/file/45-compendium-of-campus-based-law-clinics-in-nigeria> accessed 6 may 2017 ] [26: nulai is a nigerian-based not for profit non-political organization poised to fostering cle, legal education reform, legal aid and access to justice and the nurturing of future public interest lawyers in nigeria. it was established in 2003 < http://www.nulai.org> accessed 12 may 2017] [27: ojukwu, lagi and yusuf (n. 24)] [28: ojukwu, lagi and yusuf (n. 24).] one of the primary goals that inspired the establishment of the ebsu law clinic was due to inert and depraved justice system, including the need to decongest prisons in nigeria. with this in mind, the clinic has since risen to the fore in addressing these concerns particularly within the criminal justice administration in nigeria by providing access to justice and prison decongestion.[footnoteref:29] consequently, the concern for prison decongestion and the delivery of pro bono oriented legal services have specifically grown remarkably from vision to becoming a conspicuous fundamental priority; areas of focus that have indeed resulted to detectable social achievement and change in the lives of underprivileged nigerian citizens. the functionality of this vision has, however, become so broad that other objectives enmeshed thereof to include among other things: the training of law students on public interest law and community services and helping them acquire desirable real-life skills that meet legal demands of the present day society while promoting access to justice for deprived citizens by focusing on parts that range from street law programmes or community outreaches, child rights education in primary and secondary schools, freedom of information (foi), community education and support, to environmental law.[footnoteref:30] specific service areas of the clinic includes: counseling, legal advice, alternative dispute resolution (adr), prison pretrial detainee services, public interest law, street law outreaches, case referral on advocacy health and environmental protection, case analysis, writing of legal opinion, filing legal processes, provision of support services that enhance access to justice, et cetera.[footnoteref:31] this has led to the adoption of different justice initiatives by the clinic in ensuring that the needs of many underprivileged nigerians are met uncompromisingly. [29: amari omaka c, faiza haswary and omar b. maniar, ‘code of conduct and ethical challenges of law students assisting prisoners in nigeria and pakistan’ (2014) a paper presented by the authors at the sixth international legal ethics conference (ilec) at the city university london uk, july 10-12 2014 < http://www.teachinglegalethics.org/assisting-prisoners-nigeria-and-pakistan> accessed 10 may 2017] [30: ojukwu, lagi and yusuf (n. 19)] [31: ojukwu, lagi and yusuf (n. 24).] the ebsu law clinic focuses on student-centered learning evinced by hands-on experience designed to meet nulai syllabus on cle while both 4th and 5th year students normally take a required course on law practice as an academic part of the clinic’s cle.[footnoteref:32] typically, 5th (final)[footnoteref:33] year law students are assigned to different tasks that are entirely pro bono driven and which also form an assessment criteria of the students for which they are usually graded as a continuous assessment under the supervision of the clinic’s directorate. clinicians, however, constitute mainly students working under the directive of a law professor who is always the clinic’s director with the support of assistant clinic director, all of whom are appointed and supported by the university management. likewise, there is a clinic supervisor supported by three lecturers whereas the clinic director usually appoints a final year student-clinician leader who becomes responsible for all the routine activities of the clinic through the help of the management team.[footnoteref:34] [32: ibid.] [33: as a requirement for nigerian universities, the normal standard duration for the study of undergraduate law programme is 5 years. students are classed and described according to their level of beginning and progress in the course from 1st to 5th year. those in their 5th year are otherwise regarded as 500 level or final year students. see national universities commission, benchmark minimum academic standards (bmas) for undergraduate programmes in nigerian universities, april 2007 < http://fuwukari.edu.ng/wp-content/uploads/2015/04/bmas-law.pdf> accessed 12 may 2017] [34: ojukwu, lagi and yusuf (n. 24)] the ebsu law clinic generally finances its pro-bono oriented activities or projects through varying funding sources that include: approvals from ebsu management, state government support, individual donors, students’ clinic fees, and personal contributions.[footnoteref:35] these could be categorized into external and internal sources. although this is the position, evidence from research tends to show that external development partners like the open society justice initiative (osji),[footnoteref:36] and internal development partners such as the network of university legal aid institutions (nulai)[footnoteref:37] remain key funders of the most previous legal aid activities or projects undertaken so far by the clinic. of this, it suffices to note that there is no any statutorily provided funding source that readily supports the clinic’s projects and initiatives either at the faculty or central university management levels. the internal approval from the university management highlighted above merely stems from a formal application request for funds based on detailed budget to justify the work for which the fund is sought, which may or may not be approved. this raises a great concern on the sustainability of the clinic since funding is a crucially critical sustainable factor for law clinics. [35: these sources of funding are based on the information provided in an email enquiry addressed to professor amari omaka c (san), the founder and current director of the ebsu law clinic as well as the presently serving dean of the faculty of law when in the course of writing this article, it was extremely inevitable for adequate and reliable information regarding how the clinic funds its activities or projects.] [36: for information about osji, see https://www.opensocietyfoundations.org/about/programs/open-society-justice-initiative ] [37: for more information about nulai, visit http://www.nulai.org ] consequently, the administration of ebsu law clinic is not without issues. funding and logistics certainly remain key challenges affecting student–clinicians initiatives and particularly in undertaking assigned tasks that commonly result to non-refundable out of pocket expenses. from a student experience and which informs the writing of this article, i have had the rare opportunity of working as a student-clinician of the ebsu law clinic in a project tagged, ‘street lawyering and access to justice programme.’ i was singly assigned to a case of an accused murder that had stayed quite long in abakaliki prison without prompt trial. my experience during the time evinces that the clinic faces funding and logistics challenges. my colleagues who were equally working under the same programme, but whose place of assignment was far south of ebonyi state where one of the federal prisons in nigeria (afikpo prison) is located suffered the brunt of these challenges as most of them had to transport themselves each time they were going to or returning from the prison. despite the foregoing fact, the clinic has achieved tremendous longstanding success and recognition in the delivery of legal aid through student-clinicians engagement. since the past decade, the ebsu law clinic has truly justified the ultimate goals for which it was established and the evidence of that is clear as highlighted in this study. 3.1 the modus operandi the ebsu law clinic as a general interest law clinic combines empirical and theoretical approaches in carrying out its varying pro bono projects and the rendering of other free legal services to the penurious and vulnerable nigerians. the approach the clinic adopts in a particular project, however, depends heavily on a case-by-case basis, but typically embraces the purpose, type and nature of such project. most of the clinic’s undertakings deal with empirical studies involving field trips after pre-field trainings. the primary purpose of the pre-field trainings is firstly to acquaint student-clinicians with the knowledge of rules of professional conduct and to imbue them with the spirit of professionalism, as well as to take ethical consideration of the prisons when interviewing client inmates.[footnoteref:38] advocacy visitations to attorney general and commissioner for justice, nigerian bar association (nba), and nigerian prison authorities usually follow up this process.[footnoteref:39] [38: amari omaka c. ‘decongesting prisons in nigeria: the ebsu law clinic model’ (2014) international journal of clinical legal education, 20(2) 531-646. the paper was first presented by prof. dr. amari omaka c at the 8th ijcle conference at northumbria university newcastle upon tyne, england united kingdom, july 7 2010 ] [39: ibid.] since prison congestion has utterly increased to its worst height of attention, including the necessity to attend to unattended underrepresented and vulnerable nigerians, the directorate of the ebsu law clinic had frequently engaged student-clinicians mainly 4th and final year law students on first-hand empirical studies dealing with the evaluation and inquisition of facts regarding challenges faced by inmates predominantly in abakaliki and afikpo federal prisons in ebonyi state, nigeria, which projects captured realities on the inmates well-being, rate of access to justice by the inmates, welfare of the prison’s staff, facilities at the prisons, situation of the prisons structures, extent of infrastructures at the prison and with other issues comprising the nature of offences, over age, and children in the prisons.[footnoteref:40] administering cross sectional surveys on the inmates for data collection that produces sample result representing a fairly larger population has always inspired the empirical study of the clinic. [40: amari (n. 37)] the theoretical aspect of the clinic’s work principally lies in the academic component of its cle programme, advocacy, and the delivery of other pro bono services that do not involve real fact finding. the ebsu law clinic between 2008 and 2009 collaborated with an ngo, agape foundation to enlighten quarry workers within ebonyi state in the specific areas of health law, hiv and aids, non-discrimination, and stigmatization,[footnoteref:41] as these could provoke human rights issues. [41: ojukwu, lagi and yusu (n. 24)] accordingly, another investigation carried out by the clinic on the health implications of quarry operations within abakaliki capital city of ebonyi state revealed a shocking academic knowledge of health and ecological implications of quarry activities in the city. the result of the investigation prompted an immediate recommendation to ebonyi state government for the repositioning of the entire quarry and blasting operations out of the city, which was given an immediate action. among many other justice initiatives or projects of the clinic, its outreach activities had covered tenancy disputes, family and domestic disputes, unlawful termination of employment to assault and unlawful detention by police.[footnoteref:42] [42: ibid.] 4. why ebsu law clinic as a bespoke model for case study? while clinical legal education movement is budding in nigeria, there are currently about 22 campus established law clinics across universities and law schools in the country.[footnoteref:43] an in-depth review of activities of those clinics shows one commonality reflecting ambitious objectives to providing law students with rounded skills based on real-life classroom instruction and experimental learning process, training of competent and impassioned lawyers capable of fitting domestically and internationally in law practice, including providing pro bono oriented legal services to the less privileged and vulnerable citizens. most of the clinics incorporated academic and legal aid service delivery components or either in their cle curriculum design.[footnoteref:44] there are usually no taught courses, and of course formal assessments of the student-clinicians for the clinics that have only legal aid service delivery component. the scope of legal aid delivery and instruction of each clinic though shows a seamless resemblance with other clinics activities mostly in the areas of outreach activities or community enlightenment, human rights campaign, prison pre-trial detainee services, and freedom of information (foi), yet the methodology applied by all the clinics in fostering cle is somewhat not commonly analogous in a practical sense. [43: ojukwu, lagi and yusuf (n. 24) 5-41] [44: ibid., p. 6-41] with a careful analysis, ebsu law clinic has remarkably stood out amongst the clinics examined in nigeria. as pointed out in section 3.1 of this article, the clinic typically involves empirical research approach not utilized by others in providing free legal aid to the society. this methodology has enabled the clinic produce research outcomes[footnoteref:45] that have had significant inputs to government policy and decision-making process, administration of criminal justice, and prison reform in nigeria. this has been clearly evinced by stupendous recorded projects and activities to which student-clinicians have been very instrumental. more interestingly, of all the pilot and non-pilot legal clinics in nigeria, it is only ebsu law clinic that has been rated by the council of legal education, nigerian law school as an embodiment of quality in cle delivery just after a short period of its establishment. generally, the clinic has been dynamically transformative in social justice education (sje) mainly by undertaking motley of justice initiatives. [45: amari (n. 37). see also amari, haswary and manjor (n. 28).] this is why the practicality of ebsu law clinic has positioned it as a model in the frontier of legal aid delivery through cle both in nigeria and beyond. some of the key specific achievements of the clinic extend from mobile clinics on outreach activities carried out in 2009 and 2010 within abakaliki city that had assisted in resolving approximately 66 cases covering wide-ranging concerns of under-represented people to a research conducted from 2007 to 2008 on the environmental and health implications of quarry activities in abakaliki, which also culminated into a crucial report submitted to ebonyi state government and other development allies. as a result of this, all the blasting activities and quarry sites within the state were immediately relocated from the city to a remote umuohara village in ezza north local government of the state.[footnoteref:46] while the state government received commendations from all quarters for her great decision, the motivating source for such decision is appreciably attributed to the ebsu law clinic. [46: ojukwu, lagi and yusuf (n. 24).] between 2010 and 2013 alone, verifiable record shows that 77 pre-trial detainees in abakaliki and afikpo federal prisons (aafps) gained access to justice through ebsu law clinic prison pre-trial detainee services,[footnoteref:47] and has consistently secured the discharge of several pretrial detainees.[footnoteref:48] there is no doubt that the ebsu law clinic has not enhanced the four pillars or principles of legal aid through cle. in the same spirit, it has advanced legal education in a practical way, helped law students hone their practice skills in facing disparate challenges hampering effective criminal justice administration in nigeria and have equally offered students new opportunities for legal practice and research. besides professional practice, there has been indeed a new generation of leaders nurtured and produced by the ebsu law clinic. whether these extraordinary clinically trained graduates of law have begun to bear their inspiration and professional expertise in leadership in nigeria remains a question of time to come. what makes the ebsu law clinic a good practice model is certainly determined by the range of its activities and projects and similarly the methodological approaches it uses to actualize them, which approaches have helped to reveal most pressing concerns that mar the efficient working of criminal justice system, more precisely in ebonyi state of nigeria. [47: ibid.] [48: amari, haswary and maniar (n. 28)] 5. conclusion recognizing the need to augment legal aid delivery through cle as a cost-effective socio-legal mechanism with which university law clinics can utilize, it is nevertheless important to point out that cle involves a plethora of justice initiatives that can be focused on ‘need, environment, context, time and purpose.’[footnoteref:49] in effect, the adoption and extent of use of a model law clinic in providing free legal services will depend on the above factors, which could be determined by the historical antecedents of a country in dispensing with its justice system. generally, this does not dispel the fact that a model law clinic of a particular jurisdiction cannot be practically replicated in another country, but only that it should be tailored to meet targeted needs of the citizens. thus, the impetus for adopting the ebsu law clinic not as a fit for all purposes, though as a bespoke practice model for a case study in this article. the clinic in this sense is typically essential because the scope and nature of its pro bono based legal services and projects are considerably encompassing and utilizes both theoretical and empirical research methodologies in fostering cle. therefore, it can serve to lead a guide for other countries in enhancing legal aid and access to justice delivery through the engagement of law student-clinicians. [49: neil gold, ‘why not an international journal of clinical legal education?’ (2000) int’l j. clinical legal educ. 1, 7] as the scope of activities with which law student-clinicians can turn justiciable societal problems into real-life solutions are increasingly intensifying, the ebsu law clinic standard provides insights to that effect. it remains an epitome of excellence with global relevance and will always be a reference source for possible replication anywhere in the world whenever the need for a good workable model law clinic that delivers a complete and efficient legal aid arises. in this context, it is hoped that the clinic will rouse the consciousness of law schools and universities around the world to practically engage their students on different approaches in ensuring legal representation and access to justice is provided at no cost to indigent and vulnerable citizens. accordingly, governments, non-governmental organisations, law schools, universities, academics, judicial bodies, legal practitioners, and students alike will largely find this study very useful. bibliography and notes amari omaka c. ‘decongesting prisons in nigeria: the ebsu law clinic model’ (2014) international journal of clinical legal education, 20(2) 531-646. this paper was first presented by prof. dr. amari omaka c at the 8th ijcle conference at northumbria university newcastle upon tyne, england united kingdom, july 7 2010. amari omaka c, faiza haswary and omar b. maniar, ‘code of conduct and ethical challenges of law students assisting prisoners in nigeria and pakistan’ (2014) a paper presented by the authors at the sixth international legal ethics conference (ilec) at the city university london uk, july 10-12 2014 < http://www.teachinglegalethics.org/assisting-prisoners-nigeria-and-pakistan> accessed 10 may 2017. as a requirement for nigerian universities, the normal standard duration for the study of undergraduate law programme is 5 years. students are classed and described according to their level of beginning and progress in the course from 1st to 5th year. those in their 5th year are otherwise regarded as 500 level or final year students. see national universities commission, benchmark minimum academic standards (bmas) for undergraduate programmes in nigerian universities, april 2007 < http://fuwukari.edu.ng/wp-content/uploads/2015/04/bmas-law.pdf> accessed 12 may 2017. binny miller, ‘give them back their lives: recognizing client narrative in case theory’ (1994) mich. l. rev. 485. ernest ojukwu, odinakaonye lagi and mahmud yusuf, ‘compendium of campus based law clinics in nigeria’ (2014) nulai nigeria, p. 10 < http://www.nulai.org/index.php/media1/downloads-resources/file/45-compendium-of-campus-based-law-clinics-in-nigeria> accessed 6 may 2017. emil winkler, clinical legal education, a report on the concept of law clinics, available at http://law.handels.gu.se/digitalassets/1500/1500268_law-clinic-rapport.pdf> accessed 10 may 2017. encle, definition of a legal clinic accessed 10 may 2017. ebsu is a multi-disciplinary state university created by ebonyi state university law no. 7 1999, with its faculty of law located at the former college of agricultural science (cas) campus in abakaliki, the capital city of ebonyi state. the ebsu law clinic, founded by the former and current dean of the law faculty professor amari omaka c. (san) is a general interest legal clinic for law students of the university’s law faculty accessed 6 may 2017. for information about osji, see https://www.opensocietyfoundations.org/about/programs/open-society-justice-initiative for more information about nulai, visit http://www.nulai.org ibijoke patricia byron, ‘the relationship between social justice and clinical legal education: a case study of the women’s law clinic, faculty of law, university of ibadan, nigeria’ (2014) international journal of clinical legal education, 20(2) 531-646. jeff giddings, promoting justice through clinical legal education (justice press, 2013) 14. judith dickson, ‘clinical legal education in the 21st century: still educating for service?’ (2000) int’l j. clinical legal educ. 1, 33. james marson, adam wilson, and mark van hoorebeek, ‘the necessity of clinical legal education in university law schools: a uk perspective’ (2005) international journal of clinical legal education 7, 29-43. legal aid act 2011, act no. 17, articles 8 (1) and 9(2) respectively. legal aid, sentencing and punishment of offenders (laspo) act, 2012. mark spiegel, ‘theory and practice in legal education: an essay on clinical education’ (1987) ucla l. rev. 34, 577. nicola antoniou and patrick hassan-morlai, ‘live client clinics: bridging the gap’ (2014) international journal of clinical legal education, 21(2).  neil gold, ‘why not an international journal of clinical legal education?’ (2000) int’l j. clinical legal educ. 1, 7. nulai is a nigerian-based not for profit non-political organization poised to fostering cle, legal education reform, legal aid and access to justice and the nurturing of future public interest lawyers in nigeria. it was established in 2003 < http://www.nulai.org> accessed 12 may 2017. orla drummond and grainne mckeever, ‘access to justice through university law clinics’ (ulster university law school, 2005) 60. philip f. iya, ‘legal education for democracy and human rights in the new south africa with lessons from the american legal aid movement’ (1994) j. prof. legal educ. 12, 211 philip f. iya, ‘fighting africa’s poverty and ignorance through clinical legal education: shared experiences with new initiatives for the 21st century’ (2000) journal of clinical legal education 1, 13-32.  richard a. boswell, ‘keeping the practice in clinical legal education and practice’ (1992) hastings l. j. 43, 1187. r. grimes, ‘the theory and practice of clinical legal education’ (1996), in j. webb and c. maugham (eds.) teaching lawyers’ skills, 138. see also richard j. wilson, ‘training for justice: the global reach of clinical legal education’ (2003) penn st. int’l l. rev. 22, 421. see also anthony g. amsterdam, ‘clinical legal education-a 21st century perspective’ (1984) j. legal educ. 34, 612. see for examples, the provisions of the 1999 constitution of the federal republic of nigeria (as amended) particularly section 36 and article 7 of the udhr 1948. see nigeria’s national minimum wage (amendment) act 2011. see also alan a. stone, ‘legal education on the couch’ (1971) harv. l. rev. 85, 392. see, ‘legal aid: why equality before the law no longer exists in the uk in 2016’ (lawcareers, 01 february 2016) <http://www.lawcareers.net/information/features/01022016-legal-aid-why-equality-before-the-law-no-longer-exists-in-the-uk-in-20> accessed 01 may 2017. see also robert d. dinerstein, ‘client-centered counseling: reappraisal and refinement’ (1990) 32 ariz. l. rev. 50. the current basic national minimum wage (nmw) for employee salary earners in nigeria is 18,000 thousand nigerian naira per month equivalent to $57 us dollar. the civil legal aid (financial resources and payment for services) regulations 2013, section 7 (1) (b) (entered into force on april 1 2013). these sources of funding are based on the information provided in an email enquiry addressed to professor amari omaka c. (san), the founder and current director of the ebsu law clinic as well as the presently serving dean of the faculty of law when in the course of writing this article, it was extremely inevitable for adequate and reliable information regarding how the clinic funds its activities or projects. william a. woodruff and andreas bucker, the bologna and german legal education: developing professional competence through clinical experiences (2008) german l.j. 9, 575.  william pincus, clinical legal education for law students (new york, 1980) 467. 119 reviewed article 155 blogging, journaling and reflective writing: a snapshot of students’ preferences & perceptions from two australian universities matthew atkinson & margaret castle1 abstract this paper investigates the pedagogical benefits and challenges of using blogs as well as journals in assessing reflective writing in clinical legal education learning. recognising that millennial students have diverse learning preferences, the authors administered a survey to explore student preferences for different styles of reflective activity, contrasting peer to peer blogging with student to teacher journaling. our findings suggest that some of the traditional ideas about privacy and self-disclosure in reflective writing are not of significant concern to students, who see benefit in sharing experiences with each other as part of a learning community. however, our 1 matthew works at the unisa australia (“unisa”). he is the managing solicitor of his law school’s inhouse legal clinic and also coordinator and teacher in two cle courses: legal advice clinic and law professional placement. margaret works at adelaide (“adelaide”). director of the clinical legal education program, she manages four law clinics operated by the law school, a small externship program, and teaches the elective subjects clinical legal education, alternative dispute resolution, and dispute resolution and ethics. matthew and margaret acknowledge the kind support of the australian collaborative education network limited (acen) grant which has supported our research. we also thank our colleagues for their support in this project. of course, all mistakes are our own. reviewed article 156 findings also indicate that the opportunity of private reflection with a teacher is valued by students as part of the reflective learning experience. this paper outlines the approach to blogging adopted in our teaching practices and concludes that there are many benefits to thoughtfully designed blogging in clinical legal education reflective exercises. designers of reflective writing assessment will find this paper a useful source of related literature and ideas for developing journaling and blogging for reflective learning. i introduction reflective journaling has been a consistent component of learning in clinical legal education (cle) for decades. technological change does not just offer different media for reflection but enables different learning dynamics that reflect the technology driven lives of our cle students. in 2018, matthew atkinson at the university of south australia (“unisa”) and margaret castles at the university of adelaide (“adelaide”) started using blogging in addition to journaling as a medium for students to engage in reflective writing as part of their cle course assessment. in both matthew and margaret’s cle courses, student learning occurs on placement at their respective university’s law clinic or at an external organisation such as a law firm or government agency, with students doing legal work for clients under the supervision of a solicitor. matthew and margaret’s reviewed article 157 course assessments are underpinned by the understanding that reflection and reflective writing are key components which enable students to find meaning and context in the law and the legal work that they are doing,2 and that reflective practice is a core function of cle.3 margaret’s approach to reflective writing has evolved over 20 years teaching cle. originally, students submitted a collection of journal entries to be marked at the end of the teaching semester. over the years this process has been adapted first, to require sequential submission and grading of journals so that students receive feedback on their work before submitting the next entry; now based on two sequential dialogic journal discussions4 between student and teacher, with both original journal entry and students’ responses to questions graded. these adaptations were prompted by concerns around the authenticity and equity of journaling, particularly that many 2 hyams, r. (2010) ‘assessing insight: grading reflective journals in clinical legal education’ 17 james cook university law review 25, p.27; stuckey, r. (2006) ‘can we assess what we purport to teach in clinical law courses’ 9 international journal clinical legal education 9, pp.14-15; grimes, r. (1995) ‘reflections on clinical legal education’ 29 the law teacher 169, p.171; medina fuentes, j. n. (1991) ‘reflections on lawyering and clinical methodology’ revista juridica universidad de puerto rico 41, pp.57-58. 3 evans, a. et al, (2017) australian clinical legal education: designing and operating a best practice clinical program in an australian law school, anu press, p.300; stuckey, r. et al, (2007) best practices for legal education: a vision and a road map, clea, pp.48-49; evans, a. et al, (2013) best practices: australian clinical legal education (government of australia, office of learning and teaching, 2013) p.13 <http://www.law.monash.edu.au/about-us/legal/altc-project> 4 dialogic journaling takes the form of students writing a journal entry, with the marker providing feedback, asking for further explanation or discussion, and directing the student to either resources or other issues that students could discuss to deepen the reflective process. both schon and moon amongst others support dialogue (whether written or in person) as a foundational aspect of reflective learning. see schon, d. (1987) educating the reflective practitioner, jossey bass, p.304; moon, j. (2006) learning journals, routledge, 2nd ed, pp.53-55. reviewed article 158 students had not encountered deliberate reflection or journaling in prior study.5 several years ago, margaret introduced an ungraded online blogging exercise on interviewing challenges to complement the face to face seminar program. she noted differences in tone and approach in the reflective writing students’ language was more casual with easier reference to personal feelings and reactions in this informal medium. further, students reflected on the blog discussions in seminars and in their journals and seemed to value common experiences and reactions. blogging seemed to help build a sense of community within the cle class and develop valuable group communication opportunities. matthew’s experience with teaching reflective writing spans several years teaching cle, and his use of blogging in cle is somewhat fortuitous. for over 9 years, matthew’s experience in cle has primarily been as a clinical supervisor of students at unisa’s legal advice clinic. in 2018, this role changed when matthew was given the responsibility for creating two newly established final year capstone cle courses, legal advice clinic and law professional placement. the former caters for students placed in the in-house clinic and the latter caters for student externships. these two newly established courses were based on an existing cle program at his university, which used reflective writing in the form of a critical incident report and a reflective 5 some students assume that they are naturally not very good at reflection thus have difficulty or resist engaging in the process. see moon, j.a. (2013) a handbook of reflective and experiential learning theory and practice, taylor and francis, p.89. added to this is reflective learning is the exception rather than the rule in legal education and few students will have hand any engagement in the process or have even heard of it. many students need prompting to move from narrative to reflection. see woodward, h. (1998) ‘reflective journals and portfolios: learning through assessment’ 23(4) assessment and evaluation in higher education, p.417. reviewed article 159 portfolio as a means to assess students’ learning from a clinical placement.6 however, the new capstone cle courses included an online assessment component that provided for early feedback and opportunity for students to share their placement experience with peers. matthew knew that margaret was using blogging in her cle course, and thus thought he should speak with her. matthew and margaret’s discussion and collaboration about the use of blogs and journaling gave rise to the idea of conducting research into student preferences and perceptions of blogging and journaling in reflective writing. they were particularly interested in probing the perceptions and preferences of it sophisticated post millennials,7 who have grown up using online communication modalities that could not have been imagined in the days when journaling as a model for reflective writing in cle was first adopted.8 it is worth noting that as the paper goes to press we are emerging from an unprecedented period of isolation, as a result of the coronavirus pandemic, with enhanced dependence upon technological communication, making this discussion very timely. 6 see spencer, r. (2012) ‘holding up the mirror: a theoretical and practical analysis of the role of reflection in clinical legal education" 17(2) international journal of clinical legal education 181, pp.198200. 7 while there is debate about the time range of millennial students’ birth years, it is generally accepted that millennial students as those who are born between the early 1980s and the late 1990s. see palmer, j.s. (2015) ‘the millennials are coming: improving self-efficacy in law students through universal design in learning’ 63 cleveland state law review 675, p.676; benfer, e.a. and shanahan, c.f. (2013) ‘educating the invincibles: strategies for teaching the millennial generation in law school’ 20 clinical law review 1, 7. our student cohort could as well be described as post millennials or generation z. 8 see ogilvy, j.p. (1996) ‘the use of journals in legal education: a tool for reflection’ 3(1) clinical law review 55. reviewed article 160 this article reports on the results of our research and is divided into five parts. part ii provides background into our cle courses and contextualises the use of blogging and journaling as pedagogical tools to promote reflective practice both in and out of the classroom. part iii outlines the research design and methodology employed in examining student preferences and perceptions of reflective writing in blogging and journaling. part iv sets out discussion and analysis of student response to the research questionnaire and also data from follow-up focus group sessions. part v offers some preliminary conclusions and recommendations to contribute to best teaching practice when integrating blogs and journals in teaching and assessment. ii our cle courses and contextualising blogging, journaling and reflective practice (a) how matthew and margaret teach blogging, journaling and reflective practice our cle courses follow a typical pattern for cle in australian law schools. cle is generally a final year subject, coming towards the end of the substantive law curriculum (after the students have completed foundational subjects including contract, tort, criminal, administrative law, etc.) at which time students have a reasonable grounding in these basic legal principles. at the university of south australia, the cle courses are categorised as 9-point (which is a double-weight credit course for the law program) final year capstone reviewed article 161 subject.9 all students enrolled in the law program are required to obtain 18 points of capstone courses and most law students enrol in at least one of the cle courses, legal advice clinic or law professional placement.10 together the cle capstone courses have approximately 120 students enrolled over a year across 3 teaching terms of 10week duration.11 assessment of both courses comprise of placement evaluation (attendance together with a work portfolio worth 40%), online forums (3 x 300/400 word blogs, each worth 5%), and a reflective report (3,000 word journal for legal advice clinic/4,000 word journal for law professional placement respectively worth 45%). the online forums, which are due in weeks 2, 5, and 8 during the teaching term for both cle courses, require students to write a blog entry about a topic relating to their placement experience and learning. these include reflection on placement goals, and depending on the cle course, also involve students reflecting on client interviewing, supervisor feedback, access to justice and challenges faced on placement. for both courses, the blogs help students prepare for their reflective report: teacher feedback is designed to help students engage in deeper reflection of their topic and also understand how to write in the reflective genre; likewise, students have an opportunity to learn about their peers’ experience and approach to reflective writing. 9 unisa cle course information webpages: <https://study.unisa.edu.au/courses/165121/2018> and <https://study.unisa.edu.au/courses/165302/2018>. 10 unisa law program webpage: <https://study.unisa.edu.au/degrees/bachelor-of-laws-honours>. 11 in 2019, one of the teaching terms converted into a 5-week intensive. the assessment and placement requirements remain the same; students are simply complete placement in assessment in half the time. https://study.unisa.edu.au/courses/165302/2018 reviewed article 162 teacher feedback and participation in student blogs therefore has both formative and summative aspects. the reflective report, which is due a fortnight after the conclusion of the teaching term, is a journal of placement learning students are required to reflect on their placement performance, and topics relevant to their placement including client-centred practice, access to justice, and wellbeing in the law. in this reflective report, students are expected to highlight their learning by synthesising their placement experience with relevant academic literature from a teacher curated reading list. further, students can expand on their published blog topics and are also required to use their peers’ blogs as a perspective to analyse their placement experience and learning. appendix a sets out full details of unisa’s instructions for students with respect to the online forums and reflective report together with the assessment rubrics. at the university of adelaide, the cle course is a three-point elective (which is the common credit weight for most subjects across the law program) titled clinical legal education. it takes about 110 students (who are typically in their final year of their degree) per annum over 3 semesters; students are placed in one of five law school clinics, one of which post-dated the commencement of this research.12 assessment of the subject comprises assessment of placement engagement (worth 35%); 4 reflective writing pieces (blogs and journals in total worth 35%) and a single major project which may be completed individually or in small groups (worth 30%). all assessment is 12 see adelaide cle course information webpage: <https://law.adelaide.edu.au/free-legal-clinics/> reviewed article 163 summative. for blogging, students must complete 2 x 6-800 word blog entries (each worth 7.5%) in the first part of the semester, specifically to capture student thoughts in the first 5 weeks of placement when the learning curve is very steep, and to help establish a sense of community between students at the start of the subject. each student posts a blog and also responds to another student’s blog with their own ideas, observations and suggestions. students can read all of the blog entries and replies but are only required to answer one. students have so far agreed to a protocol to answer a blog that does not yet have a response so that everyone gets comments.13 both contributions (original blog and answer) are graded and students are given specific feedback on examples of good reflective writing and on how the students could engage in deeper reflection. suggested blog topics that coincide with seminar topics and the anticipated learning arc students will follow are provided for each entry, but students may also choose their own topics. in addition to blogging, students must also complete 2 x 800 word journal entries and are then required to respond to specific teacher feedback and questions about their entry via a private discussion board (each sequence being worth 10%.)14 journals occur in the last 4 weeks of the course when students have greater experience on placement, 13 while this restricts students from answering a particular blog that they are really interested in if someone has already done so, it does require intellectual engagement and perspective development by turning students’ minds to diverse issues. students are also permitted to add a second answer to an existing blog, provided students have already answered one without an answer. 14 in first semester 2018 assessment comprised 3 x journal entries. however, after this semester margaret felt that the depth expansiveness and quality of journal entries was such that reducing this to 2 entries each worth 7.5% was appropriate. in 2019 the structure has been varied: 3x blog entries/responses worth 5% each, followed by 2x journal dialogues each worth 10%. reviewed article 164 and have completed most of the seminar program, to ensure sufficient material and experience to draw on in reflective journals. teacher comment and feedback on this assessment is designed to prompt deeper, focused reflection and to ask students to consider different perspectives. for example, the teacher may direct students to additional literature or pose a question to prompt further thought about the reflected topic. appendix b sets out full details of adelaide’s instructions for students with respect to the blogs and journals together with the assessment rubrics. both matthew and margaret use blogging and journaling as a tool to promote reflection in their cle courses. with blogging, students are able to practice reflective writing, see their peers’ work, and obtain guidance from the teacher that assists with journaling. however, matthew and margaret’s approach differs in that margaret’s assessment provides for a more structured conversation between students and the teacher. margaret’s students are assessed on their feedback and peer learning through their responses to other blogs to demonstrate the following: first, students have “heard” the comments of the blogger; second, to contribute something of their own experience or thoughts to the conversation; and, third to leave the blogger with something new to think about or consider. matthew’s blogging and journaling activities are not designed in this manner, mainly due to the due dates of assessment. however, he encourages this process through discussion of blog entries in the classroom and during placement at the legal advice clinic. furthermore, although it is not required, some students also provide supportive written responses to their reviewed article 165 peers’ blogs. as discussed above, our courses only require two or three blogs from students. this is contrary to some views that multiple entries are ideal if reflective practice is to become embedded.15 our experience has been that students rapidly develop blog/journal fatigue, which can affect the value of reflection. matthew and margaret’s cle courses provide students with guidance on reflective processes to support students with their journaling and blogging. this takes the form of kolb's learning cycle, modelling the four phases of preparation for the task by reference to existing resources, engagement in the task, reflection on the process, and preparation for the next engagement incorporating further preparation based on reflection.16 at adelaide, students are asked to do short activities in class and then write a reflection on it demonstrating these four steps, and the students are evaluated in class on a document viewer so that all students can see the process in action. at unisa, students are introduced to reflective practice by considering georgina ledvinka’s student a and student b interviewing vignette.17 through this introduction students use mentimeter to highlight their understanding of reflective practice by creating a word-cloud which contains the reasons why they think student b (who is far more reflective about their experience) will learn more than student a 15 freeman, w. and brett, c. (2012) ‘prompting an authentic blogging practice in an online graduate course’ 59 computers and education 10, p.14. 16 ledvinka, g. (2006) ‘reflection and assessment in clinical legal education: do you see what i see?’ 9 international journal of clinical legal education 29, p.32. 17 ibid, p.30. reviewed article 166 about legal interviewing. 18 both matthew and margaret’s student cohorts also receive examples of reflective writing in course materials. (b) contextualising reflective practice and reflective writing the benefit of reflective practice and the concomitant pedagogical role of reflective writing is well accepted in cle.19 law student engagement in reflective practice ‘promotes innovative and critical thinking, strengthens legal professionalism, and builds a stronger aptitude for problem-solving’20. schon coined the term reflective practice and it is used to describe the process of developing professional knowledge and skills. he posited that mastery of professional knowledge and skill is best achieved when a professional can reflect in and not just on their action.21 schon’s work has had a profound influence on course design in cle; and, since his exposition of multiple models of reflective practice have been developed to highlight different levels and stages. for example, hatton and smith propose four levels of reflection: descriptive (recall); descriptive reflection (individual perspective); dialogic reflection (stepping back from individual perspective and recognising alternate views and explanations); and, critical reflection (analysing and synthesising multiple perspectives together with historical and socio-political critique).22 most recently, 18 for further detail about mentimeter, see webpage: <www.mentimeter.com>. 19 burton, k. and mcnamara, j. (2009) ‘assessing reflection skills in law using criterion-referenced assessment’ 19 legal education review 171. 20 leering, m. (2017) ‘integrated reflective practice: a critical imperative for enhancing legal education and professionalism’ 95 canadian bar review 47. 21 schon (n 4), pp.62-67. 22 moon (n 5), p.97. reviewed article 167 leering conceives of reflective practice as having three overlapping aspects: reflection on practice; self-reflection; and critical reflection. she notes that these overlapping aspects exist in a community, and the rigour of reflective practice is maximised when it is shared with others to enable feedback and further investigation.23 both the leering and hatton and smith models logically break down the micro-reflection that students will ideally follow to become reflective practitioners. all models of reflective practice are conceptually consistent;24 the aim is for students to develop the skill of being able to contemporaneously act as a legal professional and also engage in innovative and critical thinking to solve problems.25 cle courses are designed to give law students an opportunity to reflect and think critically about the law from a range of perspectives and to help provide a legal service.26 matthew and margaret’s cle courses focus on promoting access to justice, target disadvantaged and vulnerable clients, and also utilise a multidisciplinary framework to help students to reflect and recognise new perspectives in law. 27 students are encouraged to reflect on their performance with functionally evaluative questions including: what did or did not work? if i had this experience again, what 23 leering, m. (2014) ‘conceptualizing reflective practice for legal professionals’ 23 journal of law and social policy 83, pp.95-98. 24 casey, t. (2014) ‘reflective practice in legal education: the stages of reflection’ 20 clinical law review 317, p.331. 25 ibid, pp.350-1. 26 evans, ‘best practices in clinical legal education’ (n 3), pp.4 -7. 27 in matthew’s cle course some of his students attend at a health justice clinic. see ferrar, k. et al, (2019) ‘interdisciplinary learning opportunities for clinical students and teachers – a case study shared’ australian journal of clinical education 1. reviewed article 168 would i do differently? what have i learned from this experience? how will i incorporate what i have learned into future practice? of course, answering the above questions and building professional identity and expertise does not occur in a vacuum. meaningful analysis and evaluation of performance also requires students to reflect on themselves as individuals and their place in a community. such introspection is necessary because performance is inextricably linked to the individual and the community within which an individual’s performance takes place. for law students, introspection about performance and their relationship to the legal professional community generates questions like, what are my strengths and weaknesses?28 how do i learn best?29 what assumptions, values, and personality traits do i hold?30 to provide students with different perspectives in answering these questions, both matthew and margaret use reading lists and students are expected to incorporate literature into blogs and journals. this literature includes discussion on practical legal skills, legal ethics, professionalism and the role of lawyering, social and legal justice, and wellbeing in the law.31 reflection on providing a legal service in the community especially to those who cannot otherwise access it together with exposure to relevant literature has the power to generate ‘disorienting 28 james, c. (2011) ‘law student wellbeing: benefits of promoting psychological literacy and selfawareness using mindfulness, strengths theory and emotional intelligence’ 21 legal education review 217. 29 hyams, r. (2011) ‘nurturing multiple intelligences through clinical legal education’ 15 university of western sydney law review 80. 30 leering (n 23), p.98 31 the reading list includes the articles cited above including hyams (n 29); james (n 28); and leering (n 23). further detail about the instructions provided to students for reflective writing prompts can be found at appendix a and b. reviewed article 169 moments’ for students that may expand their perspective, professional aspirations and understanding of law.32 capturing this moment in reflective writing helps ensure it is memorable. (c) the challenge of teaching reflective practice and writing however, teaching and facilitating reflective practice and writing is challenging. both practices are deeply personal activities, involving intimate self-disclosure. they can provide both unflattering self-discovery33 and an opportunity to explore personal thought and its relationship to the outward professional world.34 in addition to selfdiscovery, meaningful reflection and reflective writing also requires students to critique and contextualise their performance and its relationship to the community using different perspectives including historical, social, and political.35 these perspectives are often introduced through literature and students are often assessed (including ours) on their ability to analyse and synthesise their placement experience against such material.36 our experience with law students has been that even before they encounter these challenges, they may be unfamiliar with reflective practice (in 32 donnelly, l. (2017) ‘putting disorienting moments at the centre of legal education’ 24 international journal of clinical legal education 80; fran quigley, ‘seizing the disorienting moment: adult learning theory and the teaching of social justice in law school clinics’ (1995) 2 clinical law review 37. 33 hess, g. (2002) ‘learning to think like a teacher: reflective journals for legal educators’ 38 gonzaga law review 129, p.146; ogilvy (n 8) p.91. 34 elkins, j. (1993) ‘writing our lives: making introspective writing a part of legal education’ (1993) 29 williamette law review 45, 68-69. 35 burton and mcnamara (n 19), pp.186-7; ledvinka (n 16) p.43; balsam, j., brooks, s.l. and margaret reuter, (2017) ‘assessing law students as reflective practitioners’ 62 new york law school law review 49, p.70. 36 ibid. reviewed article 170 fact, cle may be the first time students have encountered this concept) and are often quite uncomfortable with the idea of using first person language and expressing their own views. 37 student discomfort with reflection and reflective writing is largely the product of years of learning about the law in an environment that privileges a belief that black letter law and “legal” reasoning is paramount.38 often students say they “don’t know what to talk about”, or need to be assured that their own ideas are “ok”.39 we and other cle teachers and supervisors often recommend to students that a particular issue or an event that students are discussing is worthy material for reflection. we also encourage (and as discussed above require through assessment) students to synthesise and analyse their experience using different perspectives through literature and conducting independent research. students seem, at least in the early part of clinical practice, to have difficulty identifying issues from their placement experience as important enough to discuss. likewise, students often have difficulty with connecting their reflected placement experience to different perspectives highlighted in literature. prompting reflection and reflective writing in a manner that maximises its benefit to a cohort of law students requires diverse teaching strategies 37 spencer, r. (2014) ‘first they tell us to ignore our emotions, then they tell us to reflect’ 21 international journal of clinical legal education 33. 38 castles, m. and boothby, c. (2020) ‘which hat shall i wear today? exploring the professional and ethical implications of law clinic supervision’ in strevens, c. and field, r (eds) (2020) educating or well being in law: positive professional identities and practice, routledge oxford, p.117. 39 this experience is shared by other cle teachers. see, for example, miller, s. r (2013) ‘field notes from starting a law school clinic’ clinical law review 137, pp.156-7. reviewed article 171 and tools. this conforms with moon’s recommendation that support be provided to enable students to engage effectively with reflective writing.40 (d) bringing blogging into the equation one of these ideas is blogging, an activity that is popular among students, reinforces learning, and fosters a shared, collegial learning environment. in 2011, kift et al identified a range of features in legal education that contributed to heightened law student distress, nationally and globally.41 since that time there has been a surge in commentary on the importance of “community” in learning in other disciplines, both to complement learning, and manage wellbeing. the value of networked community engagement,42 the impact of peer support in creating productive learning communities,43 with communities expanding things in common, sharing private and collective work achievements, and equipping students to become leaders in their future professional communities.44 unlike journaling, which is traditionally characterised by solitude, and an emphasis on individualised introspection, blogging permits peer-to-peer reflection and immediate peer-to-peer (and teacher) feedback. these claims align with research into effective teaching strategies for the millennial 40 moon (n 4) 115-117. 41 kift, s. et al, (2011) excellence and innovation in legal education, lexisnexis butterworths, 1st ed. 42 prenger, r., poortman, c. and handelzalts, a. (2019) ‘the effect of networked professional learning communities’ 70 journal of teacher education 441; stejin, w., schouten, l. and vedder, a. (2016) ‘why concern regarding privacy differs: the influence of age and (non-)participation on facebook’ 10(1) cyberpsychology: journal of psychosocialc. research on cypberspace 3. 43 zacharopoulou, a. and turner, (2013) ‘peer assisted learning and the creation of a “learning community” for first year law students’ 47 the law teacher 192. 44 kim, b. (2018) ‘things in common in learning communities’ 46 instructional science 627. reviewed article 172 generation. millennials have embraced technology and value “real time” feedback, prefer channel broadcasting (blogging and social media) over one-to-one electronic communication (email and short text message), and value peer teamwork, learning and collaboration.45 for the millennial generation blogging may therefore have tremendous pedagogical benefit. of course, blogging is not without potential downsides.46 students need training in how to write for an (academic) blog to understand the difference between narrative storytelling and critical evaluation of experience. this is particularly so of law students for whom blogging and journaling is novel, against the context of legal education in which personal opinions (as opposed to precedent and predictable scholarly conclusions) are not valued.47 voluntary engagement with blogs can be sporadic and decline over time.48 intentional blogging can be done “in the moment”, but in reality is likely to be done some distance from the events. this might require a two-step process – the student first captures what happened and some of their initial 45 desy, j.r., et al, (2017) ‘milestones and millennials: a perfect pairing – competency-based medical education and the learning preferences of generation y’ 92(2) mayo clinic proceedings 243; price, c. (2009) ‘why don’t my students think i’m groovy? the new r’s for engaging millennial learners’ 19(2) psychology teacher network 1; carver, t. (2011) ‘peer assisted learning, skills development and generation y: a case study of a first year undergraduate law unit’ 37(3) monash university law review 203. 46 for a good summation of the concerns blogs in legal education, see black, p. (2006) ‘uses of blogs in legal education’ (2006) 13 james cook university law review 8, pp.20-23. 47 berger, l.l. (1999) ‘applying new rhetoric to legal discourse: the ebb and flow of reader and writer, text and context’ 49 journal of legal education 155, p.156. 48 black (n 46) p.21. also see roper, v. (2018) ‘blogs as a teaching tool and method of public legal education: a case study’ 2(1) international journal of public education 46, p.64. reviewed article 173 thoughts, and then later engages in deeper reflective writing to allow thoughts to be explored and analysed.49 the few published refereed articles in legal education that refer to using a blog for reflective writing have assumed that student authorship is kept anonymous.50 anonymity in journaling is also considered critical.51 maintaining this anonymity is based on the expectation that it will improve authentic reflective practice amongst students. we have taken perhaps a unique approach that diverges from traditional orthodoxy in that we have used blogging in such a way that the students know the identity of their peers’ blog entries. this is partly for the practical reason that neither university’s online learning platform enabled anonymous contributions to blog or discussion functions.52 specific protocols for public blogging were therefore required. we both developed protocols that are explicitly communicated and agreed with students. ensuring that students do not feel threatened or belittled by any commentary; courtesy; always being constructive; acknowledging different perspectives; taking time to consider the content and phrasing of comments; and, being respectful of both views and people is discussed in the classroom at the 49 beveridge, i. (2006) ‘teaching your students to think reflectively: the case for reflective journals’ 2 teaching in higher education 33, p.34. 50 ashford, c. (2007) ‘from baghdad to sunderland: weblogs and reflective learning, or how i learned to stop worrying and love the blog’ 41 law teacher 206, p.209; allen, r. and jackson, a. (2017) ‘contemporary teaching strategies: effectively engaging millennials across the curriculum’ 95 university of detroit mercy law review 1, 18. 51 ogilvy (n 8) p.91. 52 blogs are not public; they are available only to the enrolled class. when faced with this reality, we concluded that the potential benefits of identifying peers by name and creating a respectful community of practice was sufficiently good reason to continue without anonymity. blogging is managed through university learning platforms, myuni and at adelaide and moodle at unisa. reviewed article 174 commencement of each semester. course material and class content consider the role and values of feedback, and how to give and receive constructive feedback.53 it is also consistent with our expectation that students reflect the standard of inter-collegiate behaviour expected among lawyers. we both oversee and curate the blogs throughout the course, which enables issues arising to be canvassed when needed, both individually with students, and in the classroom. this monitoring also enables us to refer students to their peers’ blogs and encourage further discussion where students might find this useful. our experience has been positive, with students predominantly reporting satisfaction and confidence in the public nature of blogging. towards the end of the period of this study, adelaide accessed and used software that concealed student names in blogging. that experience is subject to a current survey seeking to establish the value that students place on anonymity in this context. responses so far suggest marginal but not overwhelming preference for anonymity. (d) goal of our research in light of the foregoing, research into our students’ preferences and perceptions about reflective writing and the use of blogs and journals in cle is timely, especially in the millennials era. in contrast to the journal between teacher and student the risk of judgment (real and perceived) is much higher in a broader communication loop such 53 the value of this learning extends beyond immediate reflective writing skills – giving receiving and evaluating feedback is a critical aspect of day to day professional life. reviewed article 175 as blogging. such risk may impinge on enhancing reflective practice. that said, introducing class interaction built on student engagement with online blogging enables shared reflection, peer-to-peer knowledge sharing and feedback, and can make good use of group dynamics as a learning strategy. the online format allows instant posts about issues of interest, and for most of our students this medium is part of the pervasive social networking communication that students engage with on a daily basis.54 socially connected communication is a key feature in the lives of our students, and blogging enables an element of that social connectedness into the classroom. having a greater insight into our students’ perceptions and preferences with blogs and journals will give us a better understanding of these dynamics and also with their experience of reflective practice. we hope this research will also assist in developing best practice for teaching reflection and reflective writing when blogs and journals are used in clinical classes. research design and methodology the research design comprised of a survey-monkey questionnaire (see appendix c) and focus group sessions to follow up any questions that arose from the survey results. all students enrolled in cle courses at adelaide and unisa during teaching terms 1 and 2 in 2018 were invited to participate in the research. the student cohort during this timeframe totalled 70 at adelaide and 102 at unisa. the relevant ethics 54 freeman and brett (n 15) p.10. reviewed article 176 committees from both universities approved the research55 and students were invited to participate by way of group emails that attached a participant information sheet and consent forms. as matthew and margaret are involved in teaching and assessing the cle courses while conducting research on their students, research design explicitly facilitated students being able to participate anonymously. the survey did not ask students to provide any identifying details and it is impossible to individualise any of the data received from survey-monkey software. likewise, the focus group sessions were facilitated and conducted by third party staff members at our respective universities. 56 transcripts of these focus group sessions were created by using a zoom recorder that enables uploading and conversion of recorded conversations to text. matthew and margaret each received de-identified text transcriptions of the focus group sessions. protecting students’ confidentiality helped to ensure candid student response and voluntary participation. iv discussion and analysis of student response matthew’s student cohort yielded 19 responses to the survey-monkey questionnaire and 3 students participated in the follow up focus session.57 the anonymity of the data 55 human research ethics committee at the unisa and human research ethics committee at the adelaide. 56 jane knowler conducted the focus group session for matthew at unisa and lecturer kellie toole conducted margaret’s focus group at adelaide. 57 the first email to students was sent by kelly ladyman an employee of the unisa, and it yielded a low number of student responses. matthew sought and obtained an amendment to his ethics application that permitted him to personally email students inviting them to participate in the research, which improved the response to 18.5%. reviewed article 177 precludes comparison of student perception between matthew’s two courses. for margaret, 48 students completed the survey-monkey questionnaire and 7 students participated in one follow up focus session. response rates to the survey were variable, with about 2/3 of adelaide students participating, a smaller proportion of unisa students. although participation in focus groups was low it provided value in terms of more detailed insights from students. this part sets out an analysis of the student response to the survey-monkey questionnaire together with their discussions in the focus group sessions. these follow-up sessions provided students with an opportunity to have a more expansive discussion about their experiences with blogging and journaling in our courses. student response to the questionnaire – which is divided into parts a, b, c and d – generate a mix of quantitative and qualitative data. our analysis first summarises the quantitative data to provide a general understanding of student perceptions and preferences with respect to reflective writing in blogging and journaling. this is followed by discussion of the qualitative data where we highlight the key themes in students’ comments. the focus group session data underpins and adds depth to this thematic discussion. (a) questionnaire: quantitative data in parts a and b of the questionnaire, which focused on blogging and journaling respectively, student response to both styles of reflective writing were positive. about 90% of unisa and 80% of adelaide students strongly agreed or agreed that blogging reviewed article 178 helped them see issues from different perspectives and to focus deeply on topics, challenges and ideas.58 likewise, almost 70% of unisa and 85% of adelaide students strongly agreed or agreed that making and receiving comments in their blogs helped them to appreciate the value of feedback.59 about 90% of both unisa and adelaide students strongly agreed or agreed that reading and receiving comments from peers and receiving feedback from the marker helped them to prepare better blog entries in the following weeks.60 all students considered that their blogs were treated respectfully.61 unisa and adelaide students also viewed journaling as a valuable tool for learning. over 75% of students indicated that journaling helped them to organise their thoughts, apply theory to practice, and improve their problem-solving skills. 62 almost 95% of students agreed that journaling assisted with performance improvement, developing self-awareness and seeing other perspectives. 63 with respect to the statement that blogging helped with their reflective journal, almost 80% of unisa students and 90% of adelaide students agreed with this proposition.64 only 50% of unisa students strongly agreed that the feedback on journal entries helped them to focus deeply on issues. 65 this is in contrast to adelaide student response where almost 58 see appendix c, questions 3 and 4. 59 ibid, question 6. 60 ibid, question 1 and 2. 61 ibid, question 5. 62 ibid, question 13. 63 ibid. 64 ibid, question 7. 65 ibid, question 8. reviewed article 179 all of the students thought the feedback helped with deep focus on issues. the explanation for this difference is probably due to the difference in assessment discussed above for our cle courses. in margaret’s course, students are required to respond to feedback and questions for two pieces of journaling assessment, while in matthew’s course, students submit a reflective report as the final assessment piece at the end of the course and do not have to respond (or otherwise consider) the feedback provided. part c of the questionnaire asked students the following: first, whether and why students preferred blogging or journaling;66 second, whether confidentiality changes their approach to reflective writing;67 and, third whether students prefer a single submission of assessment worth more or multiple smaller submissions of equal value.68 from the unisa cohort, 50% preferred journaling, 25% preferred blogging, and 25% said both activities were equally preferable. almost 70% of students said confidentiality changed their approach to reflective writing. for the adelaide students, there was not a clear majority preference for blogging or journaling, with almost equal preference. just over 50% of adelaide students said that confidentiality changed their approach to reflective writing. matthew and margaret do not have an explanation for the differences in these specific results. however, as discussed in further detail below, the public nature of blogging appeared to have an impact on 66 ibid, question 15. 67 ibid, question 16. 68 ibid, questions 17 and 18. reviewed article 180 adelaide and unisa students’ willingness to share reflected topics with peers. students appear to frankly acknowledge this as a factor in blogging, with some apparently not concerned, and others more so. without further investigation, we conclude that there is a lost benefit in blogging arising from the reluctance of some students to fully embrace self-revelation. this may relate to anonymity but may also have deeper causes. margaret has noted that student blogs are typically self-reflective and commenting on personal experience with clients, but journals often go into revelatory and detailed discussions of relationships with supervisors and other students that students clearly do not want to disclose outside of the student/marker relationship.69 the assessment question about preferencing a single submission worth more or multiple smaller submissions of equal value indicate preference for multiple smaller submissions for both unisa and adelaide students. while this question did not explicitly ask students to compare their experiences with blogging and journaling, it probably further highlights student desire for feedback on their reflective writing. as discussed above, our experience is that students seek assurance with their reflective writing, and multiple smaller submissions enables recurring feedback. blogging, which permits comparison and instant feedback from peers together with feedback 69 at adelaide the journals are not marked by the students’ direct supervisors. on occasion feedback to students includes suggestions and ideas for evaluating and managing relations with other students and/or supervisor. reviewed article 181 and assessment by the teacher, may better cater for students’ learning needs.70 this is consistent with student comments that they found benefit in hearing what other students were doing, in appreciating commonality of experiences, and in receiving feedback along the way. this suggests that the value of blogging accumulates as students become more confident both in their experience in placement and their trust in the blogging process. part d asked students to compare their learning experiences and participating in journaling and blogging. it required students to nominate either journaling, blogging or neither in response to 14 statements about which activity students felt helped with a particular aspect of their learning experience in the cle course.71 in summary, the student responses between adelaide and unisa students were varied. over 80% of unisa and adelaide students thought that blogging was more helpful in their assisting others with feedback and support. likewise, almost 75% of adelaide and unisa students thought that blogging was more helpful in developing new perspectives. these results appear to be consistent with the interactive, shared nature of blogging. conversely, adelaide and unisa students differed in their views about whether journaling or blogging was more helpful in: questioning or challenging their beliefs, values or knowledge; planning their professional life and developing career goals and plans; learning from experience; receiving critical feedback and, developing 70 garcia, e. et al, (2019) ‘student learning in higher education through blogging in the classroom’ 136 computers and education 61, pp.63-4. 71 appendix c, question 19. reviewed article 182 self-awareness, problem-solving together with interpersonal skills. with respect to these learning experiences, approximately 60% of unisa students thought that journaling was more helpful while approximately 60% of adelaide students thought it was blogging. the variation in these results may be the product of differences in the assessment regime. for example, margaret provides feedback responses on journaling to which her students are expected to respond. this may account for why a majority of her students nominate journaling as being more helpful in reflecting deeply on experience. while matthew’s students submit one longer journal (reflective report) at the end of the teaching term where his students are asked to analyse their goals and reflect on their placement experience and what this means looking forward into their professional lives.72 this may be why his students say that journaling better helps with their planning their professional life and developing career goals and plans. for both universities, the data shows that students perceive benefits for their learning about reflection and reflective writing in both blogging and journaling. close analysis of the responses suggests that student responses are quite tightly linked to elements of content, for example, valuing feedback that enables them to think more deeply and enhance their grades, noting the impact of reflection on future career options when that is specifically requested, and responding positively to the “sharing” of experiences and uncertainties in the early stages of a challenging course. 72 see appendix b, reflective report for law professional placement. reviewed article 183 (b) questionnaire: qualitative data matthew and margaret together reviewed the survey-monkey questionnaire comments and focus group discussion transcripts and segmented this data into overarching themes.73 this was achieved by identifying and grouping specific words and phrases used by the student cohort who participated in the research. we have developed four main themes from the data in our investigation of students’ preferences and perception of blogging and journaling: (1) marker feedback and students’ preference in the quality and style of that feedback; (2) peer feedback, which raised consideration of the impact and relationship between summative and formative assessment of reflective writing; (3) sharing reflection with peers and being part of a community where personal feelings and experience can be validated; and (4) sharing personal thoughts with peers and the impact on reflection and reflective writing. (i) marker feedback almost all of the adelaide and unisa students who completed the questionnaire, and also those who participated in the focus group sessions, provided comments about marker feedback. on the pragmatic level of being assessed, students commented that feedback helped them understand “what the marker wanted to see”, “what areas i needed to improve 73 we followed a similar process to that described in hess, g.f. (2014) ‘qualitative research on legal education: studying outstanding law teachers’ 51(4) alberta law review 925, pp.934-7. we did not code our data using computer software because our data was not so voluminous as to require this technology. reviewed article 184 on”, “where to expand”, “how to approach writing” and to confirm “whether i was on the right track or not.”74 important characteristics of marker feedback for students included it being “constructive”, “immediate”, “detailed and personal … rather than generic.”75 there is nothing particularly novel or ground-breaking with this data. thoughtful feedback in cle is viewed as an integral pedagogical tool that enhances student learning and promotes reflective practice.76 summative assessment increases student attention and motivation for graded work.77 additionally, formal criterionbased student evaluation provides structure for feedback; such structure is beneficial for students because it gives clarity on the requisite skills to master and the parameters of evaluation.78 however, from our analysis of the qualitative data about marker feedback, we note two important issues with promoting reflective practice and writing. first, students at both universities commented on the perceived value of personalised questions the marker posed on their blogs (and the journals too for adelaide). asking questions in feedback clearly promoted self-assessment and reflection leading to improved learning outcomes and engagement with new material.79 students comments included: 74 unisa and adelaide student focus group comment extracts about marker feedback. 75 ibid. 76 mack, k. (1993) ‘bringing clinical learning into a conventional classroom’ 4 legal education review 89 77 hyams (n 2) p.34. 78 ibid p.35; also see barry, m.m (1995-1996) ‘clinical supervision: walking that fine line’ 2 clinical law review 137, pp.163-4. 79 see withey, c. (2013) ‘feedback engagement: forcing feed-forward amongst law students’ 47 law teacher 319, pp.328-342. reviewed article 185 ‘i like the additional questions that margaret would put in our blogs, it gives you a different perspective you might not have thought of yourself’ ‘... [t]he marker would ask me questions that would make me really think about how i react and behave the way i do. i began asking myself similar questions when completing future blog posts, and constantly asked myself why i think the way i do. i think it allowed me to be more introspective.’ second, students at both universities also highlighted caring, authentic feedback from the marker as being critical for them to engage and “feel okay” about reflective practice when blogging: ‘my initial blog was terrible because i was afraid to open up and did not believe the supervisors would care, however based on how much feedback i received, i realised they do genuinely care and took the time to read my blog and critically evaluate it.’ ‘i noticed that when marking, language such as ‘a minor criticism' was used. i am assuming the lecturers are very careful about this, for example to not make students feel bad.’ ‘i never felt that i was being judged for how i was feeling.’ extant literature highlights that quality reflective writing hinges on safety, respect and non-judgment from academics involved in responses or grading.80 with respect to the preceding students’ comments, we suspect that sharing reflection with peers in 80 ogilvy (n 8) p.60. reviewed article 186 blogging makes caring, authentic feedback from the marker an even greater imperative. in contrast to the proponents who see benefit in using feedback as a tool for graded student evaluation,81 critics point to this process as being ‘more judgmental, and suggest[ive] [of] a power dynamic that is inconsistent with selfreflection clinics encourage’.82 it is argued that a teacher’s grading is unnecessary for expressing ‘encouragement or concern’ and it is a ‘simplistic mechanism … attractive to teachers precisely because it is unspecific and impersonal.’83 while these concerns about grading were not borne out in students perceptions of marker’s feedback to students posts (which were detailed personal and specific), the authenticity of the feedback from other students who were subject to grading in their response was questioned by students at adelaide. (ii) blending summative and formative assessment with peer feedback at adelaide, there were mixed responses concerning the authenticity of the graded blogs. one student in the focus group thought having peer blog responses marked meant that, ‘naturally they had thought about it and it contained value’. however, others disagreed and suggested that peer responses were not genuine because they were designed to maximise grades. these concerns were expressed by a number of students and encapsulated in the following comments: 81 hyams (n 2); barry (n 78); withey (n 79). 82 barry (n 78) p.158. 83 rice, s. (2007) ‘assessing but not grading clinical legal education’ (working paper no 2007–16, macquarie university) 1 < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1061622>. reviewed article 187 ‘the difference i felt between other students [comments] and margaret’s feedback was that we all know her well enough and [she] had lots of encounters with us and [we] knew we genuinely asking us those questions and be genuinely interested as opposed to [a] student we met once.’ ‘feedback given in the course of the exercise was clearly done so to achieve grades. the feedback i received felt as though it was written as much for the markers eyes as it was for mine. this kind of exercise cannot be properly done when it is compulsory and graded.’ when grading is taken out of the equation, peer feedback about the blogging was viewed favourably. at both universities, students highlighted how blogging provided a forum for them to develop self-confidence in their abilities and also build their critical thinking skills through acknowledging different perspectives. these sentiments are captured in this unisa student comment: ‘it helped reduce the stigma associated with reflection. it allowed me to realise that other people experience similar emotions during the clinic. i could use this discussion with other students’ as well to strengthen my reflective writing too, and demonstrate that i acknowledge other perspectives.’ while margaret and matthew do not intend to weigh into the debate about graded vs non-graded evaluation in this paper,84 feedback undoubtedly plays a vital role in 84 see moon (n 5) pp.149-58; hyams (n 2) 25; boothby, c. (2016) ‘pigs are not fattened by being weighed – so why assess clinic – and can we defend our methods?’ 23 international journal of clinical legal education 137. reviewed article 188 students’ perception of the value of reflection and their development of a reflective mindset. in terms of striving for grades and understanding what is required in reflective writing, the marker’s feedback was highly valued. likewise, students recognised the benefit of peer feedback in enabling them to see other perspectives and thus produce better quality reflective writing that met marking criteria. moreover, it appears that students on our courses were able to utilise both styles of feedback to enhance reflective practice: evaluation (being able to compare and comment on their peers’ blogs) and also valuation (considering the markers’ grade, comments and assessment criteria). one final issue that we consider beneficial using blogs and journals and blending formative and summative assessment for these tasks is that it makes them more accessible and achievable. many of our law students have not engaged with personal or reflective writing in their prior study. our subjects place high assessment values to reflective writing (45% at unisa and 35% at adelaide). it is important that students are equipped to make as good an effort at reflective writing as they can at more typical academic assessment tasks. both of our courses focus closely on how to “be reflective” providing guided readings, exercises in class, and in class discussions and practice exercises in reflection. this range of inputs in blogging and journaling support students to be able to perform well in reflective writing as well as gaining the learning and insight that we want them to develop as part of their ongoing reflective practice. reviewed article 189 (iii) sharing reflective writing with peers and being part of a community another impact blogging has on students’ reflective writing, which is also noted in the feedback discussion above, was the sense of having personal feelings validated and being part of a community. at unisa, students in the focus group were in agreement that: ‘reading other students blogs made me feel like i could be more open with my blogs because i could see that they were having similar experiences and feeling similar things to me.’ this relational aspect of blogging and helping students to feel that they are not alone may make it a valuable tool in contributing to students’ wellbeing. two adelaide students made insightful comments on the benefit of blogging in creating a sense of professional community: ‘i also agree that the blog system is certainly forcing us to work together, which creates a sense of community between all of the cle students. i'm certainly enjoying this feeling as it is rare amongst the law fraternity.’ ‘what i have come to realise, is that that being a collegiate lawyer extends beyond a paternalistic relationship. over the last couple of weeks, i have really felt a sense of collegiality with other law students. this is largely attributable to being able to read and respond to other people’s cle experiences, and also receive feedback myself through the blogs.’ reviewed article 190 emerging scholarship emphasises the importance of community and connection in effective learning in legal education.85 legal education in many respects is typified by a linear, competitive, black and white reasoning process.86 it encourages a thought process that is rooted in an objective, adversarial and catastrophising paradigm.87 thinking like a lawyer turns clients into solvable legal problems where calculations of risks and prediction of outcome can be performed for any particular action throughout the legal battle. this thought process makes it difficult for law students to conceptualise human behaviour as being intimately linked to emotion, bias, frailty, and error in perception and judgment.88 the blogging activity stands outside of this paradigm and in fact highlights to students that their peers are undergoing a similar experience. field et al discuss the multiple stresses that face students in legal education and that students will need to build resilience to in practice89. our view is that blogging supports recognition of emotional intelligence, and humanises legal education, with overall benefit to their wellbeing.90 85 field, r., duffy, j. and huggins, a. (2014) lawyering and positive professional identities, p.21. 86 huggins, a. (2012) ‘autonomy supportive curriculum design: a salient factor in promoting student wellbeing’ 35(3) university of new south wales law journal 683. 87 field, r. and duffy, j. (2012) ‘better to light a single candle than to cures the darkness: promoting law student well-being through a first year law subject’ 12(1) queensland university technology law & justice 133, pp.153 -54. 88 ibid p.154. 89 field, duffy and huggins (n 85) p.241. 90 ibid. reviewed article 191 (v) sharing personal thought with peers and the impact on reflective writing reflective practice and writing can be seen as deeply personal activities, which involve intimate interrogation of personal thought and reaction to experience.91 we therefore were keen to find out what students thought about sharing their reflective writing with peers through blogging. with respect to whether confidentiality changes our students’ approach to reflective writing,92 our data indicates that adelaide students appear to be generally less concerned than unisa students about sharing their reflective writing with their peers. as mentioned above, approximately 70% of unisa and 50% of adelaide students indicated that confidentiality does change their approach to reflective writing. as to why confidentiality changes their approach,93 unisa and adelaide students can be categorised into three groupings: first, students who were not prepared to share deep, personal reflection with peers; second, students who shared the sentiment of the first group, but changed when students felt safe to share with peers; and, third students who felt comfortable and liked sharing reflective thought with peers. the first group, who were simply not prepared to explore or discuss some matters that would be read by their peers, expressed aversion towards being reflective in their blogging. at unisa, these students said with blogging they felt “inhibited”, “could 91 hess (n 33) p.146; ogilvy (n 8) p.91; elkins (n 34) pp.68-69. 92 appendix c, question 16. 93 ibid. reviewed article 192 not be personal” and “would not be speaking about deep issues”. likewise, in the adelaide focus group session students stated: ‘with blogging there was a sense of restriction in that what you’re writing because you know that the rest of the cle cohort can read it. the journal allowed me to speak frankly.’ ‘i felt that i could discuss issues in more detail when i was writing them for margaret. margaret was great at making students feel comfortable and open.’ it would be useful to glean a deeper understanding of this category of student and the reasons why students do not feel comfortable with engaging in reflection with their peers. only one student at unisa elaborated on why he or she did not feel comfortable blogging this student states: ‘as a student who does struggle with ... writing and has an access plan to reflect i found it extremely daunting knowing that my writing would be published for the entire cohort to see. whilst i do believe that there are many benefits to reflective writing i think the potential for the blogging to be edited slightly even if it is just the students names removed from the blog entries would have a big impact on the students willingness to participate…’ the second group of students said that they were fearful and not prepared to “openup” until they knew that it was safe to do so. at both universities there were variations of this type of comment: reviewed article 193 ‘i was terrified that other students would be able to read about my feelings, and innermost thoughts because they were not anonymous. this is why i think i refrained from truly getting to the heart of reflection in my first blog post... i was grateful that every student i spoke to was respectful about the posts.’ the third group of students thought that sharing reflective writing with peers was a positive experience from the outset. in this group, students commented that peer sharing encouraged them to “put extra into it” and that it appealed to their “competitive nature”. in the unisa focus group session, one student stated that, ‘…the public nature of it forced me to properly think about reflective writing from the beginning of the semester. whereas if it was just left at the very end, and i didn’t have to write something so that i wouldn’t be embarrassed in a sense, my last piece [the reflective report] would have been terrible.’ this preliminary data shows that blogging shared with peers has the potential to promote effective engagement with reflective practice and writing. matthew and margaret do not have a firm view about whether reflective writing and blogging should be confidential or otherwise anonymised. moreover, we are of the view that anonymous blogging is likely to generate a different set of concerns and hesitation amongst a student cohort.94 on our data and teaching experience, the key is to ensure that students feel safe to share their feelings and to harness law student predilection 94 adelaide recently accessed and used software that concealed student names in blogging in subsequent semesters. that experience is subject to a current survey seeking to establish the value that students place on anonymity in this context. reviewed article 194 for competitiveness in a positive manner.95 of course, this will not always be straightforward in a law classroom where there are a range of learning styles. v preliminary conclusions and recommendations to contribute to best teaching practice when integrating blogs and journals one of matthew and margaret’s aims in introducing blogging in addition to journaling in their clinical courses is to better inculcate reflective practice both in and outside the classroom. a reflective law student enters the legal profession as a selfdirected learner with increased self-awareness,96 emotional intelligence,97 and a sense of professional identity.98 likewise, reflective law students are better able to transition into the legal profession because they have already started to develop their professional resilience, knowledge and expertise. 99 at its essence, the ultimate goal of reflective practice in clinical legal education is deep metacognitive development of students and their integrating the professional and personal self.100 this process can be a deeply private activity that involves inward 95 field, duffy and huggins (n 85) p.243; sturm, s. and guiner, l. (2007) ‘the law school matrix: reforming legal education in a culture of competition and conformity’ 60(2) vanderbilt law review 515. 96 hess (n 33) p.136. 97 james (n 28) p.226. 98 darrow-kleinhaus, s. (2012) ‘developing professional identity through reflective practice’ 28 touro law review 1443. 99 leering (n 23) pp.102-104. 100 ibid p.99. reviewed article 195 looking personal analysis, which may generate feelings of discomfort and vulnerability.101 when students are required to engage in this process in writing as part of assessable work it is traditionally achieved through explicit guarantees of privacy in submission. blogging does not on its face fit within that deeply personally reflective framework for a number of reasons, most stemming from the lack of privacy. our research suggests that the anxieties of some of the student cohort may have diverse impacts on the authenticity, honesty, accuracy, and openness of blogging. there is a perception that people around the millennial generation are more “carefree” and less concerned with privacy. this arises from the often self-revealing behaviour of this generation online.102 our study suggests that levels of comfort with personal self-revelation in a social media environment does not extend into the educational or professional arena, and that students are very mindful of the manner in which they reveal personal observations and thoughts, and relate experiences in this more formal context. conversely, the values of community and peer connection that flow from blogging may contribute to the development of perspective, flexibility and collaboration skills. blogging appears to introduce a collective experience to reflection and reflective practice for students, which cannot be replicated in journaling. with blogging, students valued sharing experiences as a means of normalising both feelings and 101 hess (n 33) p.146; ogilvy (n 8) p.91. 102 stejin, schouten and vedder (n 42) p.3. reviewed article 196 challenges; students recognised that different perspectives were prompted by the blogging exchange; they found that peer feedback helped them to learn and reflect more deeply, and they felt that blogging helped create a sense of community and connection within the cohort. matthew and margaret are of the view the blogging and journaling are in a sense complimentary. irrespective of student preference for blogging or journaling, our data indicates blogging helps students recognise other perspectives and also fosters a greater understanding of their individual experience. these are vital aspects of the reflective process and are important ingredients for a rich introspection or selfreflection which does not necessarily need to be made public. further to this, it may be the aspects of reflection that blogging promote positively feed into journaling where privacy is protected. to this end, we suggest that using blogging as an introductory assessment tool for reflection may lead to deeper overall learning outcomes for students. however, neither process occurs naturally or intuitively.103 if anything our experience has shown that what we ask students to do, how we equip them to engage in the process, and the stage at which processes are used, is integrally linked to their successful engagement with the process. this conforms with beveridge’s view that effective reflection requires a combination of factors – the 103 spencer (n 6) p.181. reviewed article 197 trustworthiness of the reader (be that teacher or students); clear expectations, and effective feedback.104 to conclude, blogging and journaling can be seen to have slightly different roles. as our experiment has unfolded, we have discovered that blogging has a tripart purpose within the overall reflective process in cle. first, it helps to create a learning community in which students can connect to each other both personally and by comparing experiences. this supports wellbeing as well as the development of perspective.105 second, it creates a pool of material that can be woven into the teaching strategy bringing to light experiences, observations, common and diverse, that connect theory to practice in the classroom. finally, it introduces students to the idea of critical reflective learning, which then takes on greater depth in subsequent journaling/ dialogue with their teacher. 104 beveridge (n 49) p.64. 105 field, duffy and huggins (n 85) p.252. identify maintaining perspective as one of the key elements of wellbeing in law school. reviewed article 198 appendix a unisa guidelines for blogging and journaling: blogging prompts for legal advice clinic online post # 1 in 300 words please do the following: • state a s.m.a.r.t goal you want to achieve at the legal advice clinic (25 words) • discuss the results of your via strength test: do you think these results have any relationship to your above stated goal why or why not? (275 words) online post # 2 in 400 words, reflect on your performance for your mock interview. in this post, please: • analyse and evaluate one aspect of your performance in the 'mock' interview with other interviewing experiences at the legal advice clinic (250 words); • consider what part(s) of the interviewing process outlined in the text 'practical legal skills: developing your clinical technique' are relevant to your experience (50 words); • outline what you need to work on to improve your interviewing skills, and how will you do it (100 words). online post # 3 in 300 words, discuss an experience in the legal advice clinic and its relationship to access to justice. describe the experience (50 words) and using literature in the e-reading list reflect on its relationship to access to justice (250 words). blogging prompts for law professional placement online forum post # 1 in 350 words, answer the following questions, which you should be able to respond to even if you’ve not yet started your placement: • describe the work of your host organisation. (50 words) • what types of legal matters does your organisation handle (or come in contact with)? (50 words) • state a current placement goal. how will you achieve this goal and why exactly do you want to reach it? (250 words) online forum post # 2 in 350 words, address the following: • describe a task you have undertaken, undertaking or will undertake and the associated challenges you are experiencing. (100 words) • reflect on possible solutions and next steps with reference to relevant literature. (250 words) online forum post # 3 in 350 words, address the following: • describe feedback you have received on a task. (50 words) • discuss in detail what you learned from this feedback, and any changes that you plan to make for future work based on it together with relevant literature. (300 words) alternatively, if you have not received any feedback discuss what the barriers are in your receiving feedback and what you can do to overcome them using relevant literature. (350 words) reviewed article 199 reflective report prompts for legal advice clinic part 1: self-awareness and performance analysis (1200 words) using material from the seminars, authentic happiness/vark tests, and ereading list to assist your analysis of your legal advice clinic placement performance and learning: • briefly describe your clinic goals and then critically discuss them in light of your placement performance. do this by reflecting on your placement performance: evaluate what you did well or poorly; consider what strengths and weakness you noticed discuss how you can develop the former and counteract the later; and, analyse what you have learnt from fellow students at the clinic and the role they have had in your performance. (800 words) • respond to two forum student posts (identify the posts to which you are responding). outline what you learnt about yourself and your experience at the clinic from reading these posts. (400 words) part 2: client-centred practice (900 words) using the text and relevant e-readings together with your experiences at the legal advice clinic, engage in reflective analysis of client-centred practice by addressing the questions listed below: • what skills did you develop and use to assist clients to tell their narrative and make an informed decision to resolve their legal and (non)-legal problems? • what barriers inhibited you from being client-centred, and if you could "redo" an interaction with a client, fellow student, or supervisor in order to help you be a 'client centred' professional, what would you do differently if you had your time again? • do you think there are situations when client-centred practice conflicts with the professional obligations of a legal practitioner why or why not? do your conclusions about this have anything to do with your experiences at the legal advice clinic? why/why not? part 3: access to justice and lawyers' ethics (900 words) critically analyse an experience you had at the legal advice clinic using all four approaches to lawyers' ethics that are described in christine parker's, 'a critical morality for lawyers: four approaches to lawyer's ethics' (2004) 30 monash university law review 49. in your critical analysis, you should: • highlight the connection between each of the four approaches and its respective impact on access to justice • outline why a particular approach is (or approaches are) preferable using access to justice literature (in the e-reading list or from your own independent research) to support your conclusion. reflective report prompts for law professional placement part 1: goals, performance analysis (1. 1,500 words; 2. 1,000 words) using material from the seminars, authentic happiness/vark tests, and ereading list to assist your analysis of your placement experience and practical learning: 1. briefly describe your placement goals and then critically discuss them in light of your placement performance. do this by reflecting on your placement performance: evaluate what you did well or poorly; consider what strengths and weakness you noticed discuss how you can develop the former and counteract the later; and, analyse what you have learnt from your supervisor and the role they have had in your performance. 2. respond to four forum student posts (identify the posts to which you are responding). outline what you learnt about yourself and your placement experience from reading these posts. part 2: your future in the profession and wellbeing, values and ethics (1,500 words) critically analyse at least three of the articles on the e-reading list which focus on values, ethics or wellbeing by examining their relationship to your placement experience and your plans for personal, educational and career development. how do you plan to stay well in the law (or professional life)? did your placement engage you in work consistent with your own values? how does this realization help you understand your identity as a lawyer and the path that you may take going forward? reviewed article 200 rubrics for blogging and reflective report [adapted from susan l brooks, and margaret reuter, ‘assessing law students as reflective practitioners’ (2017) 62 new york law school law review 49] fail pass credit distinction high distinction marking criterion 1 object of the reflection the focus of the online post does not address the question(s). online post topic(s) are confused, and very little of the writing clearly supports or flows from the topic(s) of reflection. overall, the answer to the online post question is not coherent. the focus of the online post partly addresses the question(s). online post topic(s) are mostly defined, and some of the writing supports or flows from the topic(s) of reflection. overall, the answer to the online post question is somewhat clear. the focus of the online post mostly addresses the question(s). online post topic(s) are defined, and most of the writing supports the topic(s) of reflection. overall, the answer to the online post question is mostly clear. the focus of the online post clearly addresses the question(s). online post topic(s) are well-defined, and all of the writing supports the topic(s) of reflection. overall, the answer to the online post question is clear. the focus of the online post addresses all of the question(s) in an articulate and sophisticated manner. online post topic(s) are well-defined, and all of the writing clearly supports all of the topic(s) of reflection. overall, the answer to the online post question is clear and concise. marking criterion 2 critical perspectivetaking in the reflection the online post is too descriptive and the topic(s) of reflection only consider the writer’s perspective in an uncritical manner. the online post is too descriptive, and the topic(s) of reflection partly consider the writer’s perspective in a critical manner. when needed some perspectives are supported by evidence, but it is done in a superficial manner. the online post has a partial balance of description, interpretation and evaluation, and the topic(s) of reflection mostly consider the writer’s perspective in a critical manner. when needed some perspectives are supported by appropriate evidence (for example, from e-readings, seminar discussions, and additional research). the online post has a good balance of description, interpretation and evaluation, and the topic(s) of reflection consider the writer’s perspective in a critical manner. when needed most perspectives are supported by appropriate evidence (for example, from e-readings, seminar discussions, and additional research). the online post has a complete balance of description, interpretation and evaluation, and the topic(s) of reflection consider the writer’s perspective in a critical manner. when needed all perspectives are supported by appropriate evidence (for example, from ereadings, seminar discussions, and additional research). marking criterion 3 personal engagement in the reflection the online post shows no introspection about the student’s experience and reaction. the online post shows some introspection about the student’s experience and reaction. the online post shows introspection about the student’s experience and reaction. the online post shows introspection and demonstrates selfawareness about the student’s experience and reaction. the online post shows deep introspection and keen selfawareness about the student’s experience and reaction. marking criterion 4 writing mechanics the online post is poorly organised, has multiple errors in grammar, and requires extensive editing to produce clarity and concision. the online post is somewhat organised, has some errors in grammar, and requires some editing to improve clarity and concision. the online post is organised, has negligible errors in grammar, and requires minor editing to improve clarity and concision. the online post is organised and paints a vivid picture. it may have a negligible error in grammar, but editing to improve clarity and concision is not required. the online post is organised, flows well and paints a vivid picture. it has no errors in grammar. editing to improve clarity and concision is not required. reviewed article 201 fail pass credit distinction high distinction marking criterion 1: object of the reflection the focus in the reflective report does not properly address the question(s) in parts i and ii. the topics in the reflective report are confused, and there is inadequate detail to explain the relevance of the reflection to the reader. overall, the reflective report topic setup is cursory and lacks specific contextual detail in response to the part i and ii questions. the focus in the reflective report partly addresses the questions in parts i and ii. the topics in the reflective report are mostly defined, and there is adequate background information to explain the relevance of the reflection to the reader. overall, the reflective report topic setup is sufficient but it lacks specific contextual detail in some of the response to the part i and ii questions. the focus in the reflective report mostly addresses the questions in parts i and ii. the topics in the reflective report are defined and there is detailed background information to explain the relevance of most of the reflection to the reader. overall, the reflective report topic setup is clear and there is specific contextual detail in response to most of the questions to the part i and ii questions. the focus in the reflective report addresses all of the questions in parts i and ii. the topics in the reflective report are well-defined and there is detailed background information to explain the relevance of all of the reflection to the reader. overall, the reflective report topic setup is very clear and there is specific contextual detail in response to all of the part i and ii questions. the focus in the reflective report addresses all of the questions in parts i and ii in an articulate and sophisticated manner. the topics in the reflective report are well-defined and there is detailed background information to explain the relevance of all of the reflection to the reader. overall, the reflective report topic setup is faultless and there is specific contextual detail in response to all of the part i and ii questions. marking criterion 2: perspectivetaking in the reflection the reflective report is too descriptive and the topics of reflection only consider the writer’s perspective in an uncritical manner. the reflective report is too descriptive, and the topics of reflection partly consider the writer’s perspective in a critical manner. some of the reflective report addresses multiple perspectives, but it fails to identify and examine the perspective of one or more important actors in the topics of reflection. perspectives are supported by evidence, but it is done in a superficial manner. the reflective report has a balance of description, interpretation and evaluation, and the topics of reflection mostly consider the writer’s perspective in a critical manner. the reflective report addresses multiple perspectives and all of the important actors in the topics of reflection are identified and examined. most perspectives are supported by appropriate evidence (for example, from ereadings, seminar discussions, online posts, and additional research). the reflective report has a balance of description, interpretation and evaluation, and the topics of reflection consider the writer’s perspective in a critical manner. the reflective report addresses multiple perspectives and all of the important actors in the topics of reflection are identified and examined in a sophisticated manner. all perspectives are supported by appropriate evidence (for example, from e-readings, seminar discussions, online posts and additional research). the reflective report has a balance of description, interpretation and evaluation, and the topics of reflection consider the writer’s perspective in a critical manner. the reflective report addresses multiple perspectives and all of the important actors in the topics of reflection are identified and examined in a sophisticated manner. all perspectives are supported by appropriate evidence in a sophisticated manner (for example, from e-readings, seminar discussions, online posts and additional research). reviewed article 202 marking criterion 3: personal engagement in the reflection the reflective report shows minimal introspection. the evaluation of the writer’s reaction to his or her experience is missing or incoherent. the reflective report shows some introspection about the student’s experience and reaction. there is minimal evaluation of the writer’s strengths and weaknesses in relation to the topics of reflection. the reflective report shows introspection about the student’s experience and reaction. there is some evaluation of the writer’s strengths and weaknesses in relation to the topics of reflection. the reflective report shows deep, genuine introspection about the student’s experience and reaction. there is evaluation of the writer’s strengths and weaknesses in relation to the topics of reflection. . the writer’s evaluation of strengths and weakness highlights what he/she needs to learn going forward is articulated. the reflective report shows deep, genuine introspection about the student’s experience and reaction. there is keen selfawareness and a sophisticated evaluation of the writer’s strengths and weaknesses in relation to the topics of reflection. the writer’s evaluation of strengths and weakness highlights what he/she needs to learn is clearly articulated. marking criterion 4: lessons learned from reflection the reflective report is descriptive and there are not any identifying takeaways or learning that is personal to the writer. the reflective report considers lessons learned from reflection, and partly addresses how this learning will be used in the future. the lessons learned are supported by evidence, but it is done in a superficial manner. the reflective report considers lessons learned from reflection and mostly addresses how this learning will be used in the future. the lessons learned are supported by appropriate evidence (for example, from ereadings, seminar discussions, online posts and additional research). the reflective report considers lessons learned from reflection and clearly addresses how this learning will be used in the future. the lessons learned are supported by appropriate evidence (for example, from e-readings, seminar discussions, online posts and additional research). the reflective report considers lessons learned from reflection and clearly addresses how this learning will be used in the future in a sophisticated manner. the lessons learned are supported by appropriate evidence in sophisticated manner (for example, from e-readings, seminar discussions, online posts and additional research). marking criterion 5: writing mechanics the reflective report is poorly organised, has multiple errors in grammar, and requires extensive editing to produce clarity and concision. aglc compliance is nonexistent. the reflective report is somewhat organised, has some errors in grammar, and requires some editing to improve clarity and concision. aglc compliant in some areas, but there are errors. the reflective report is organised, has negligible errors in grammar, and requires minor editing to improve clarity and concision. aglc compliant save and except for multiple minor errors. the reflective report is organised and paints a vivid picture. it may have a negligible error in grammar, but editing to improve clarity and concision is not required. aglc compliant save and except for a minor error. the reflective report is organised, flows well and paints a vivid picture. it has no errors in grammar. editing to improve clarity and concision is not required. aglc compliant. reviewed article 203 appendix b adelaide university guidelines for blogging and journaling: blogs blog responses a good blog outlines the experience event or issue with just enough detail to give it context, frames the issue you want to discuss, and then discusses with reference to theory and your own experience.  blog # 1 – share your experience/thoughts of your first day on placement. how did you feel on the first day? relate your feelings to how a client might feel? what specific strategies will you use to help the client through the process.  blog # 2 – what do you need advice on? there are 20 smart students in this course. identify one or more things that you would like some advice/support. frame your questions with reference to theory and to your preliminary thoughts on the issue.  blog # 3 – challenges and successes. you should by now have been involved in one or more interviews or other interactions with clients or other advisors. select an interesting experience. explain what you learned from the experience, with reference to your starting point and where you are now. focus on things you have learned or questions you have arising from the experience. not inspired by any of these? you can blog about anything you like. just remember to frame your discussion in a way that another student can learn from and respond to. a good blog response generally covers the following: • show that you have heard what the blogger says – not be repeating it but by summarising what was said in context (much as you would provide reframed feedback to a client in an interview) • engage with the blog by adding your own thoughts experiences or suggestions to the discussion • build on the conversation by adding your own understanding from further research, or by asking carefully thought out questions research does not just mean law journals! it means looking for resources that help explain interpret or build understanding and experience – it is completely acceptable to search online for whatever information you find that is helpful it does not have to be a scholarly resource. style – use your own authentic voice, speak in the first person, tell a story rather than a de personalised academic discussion. try to engage in a conversation with each other. reflective journal reviewed article 204 journal # 1 journal # 2 i will read and comment on your journal entry within the nominated time, and ask you further questions, which you should answer by the nominated date. i will read and respond to your journal entry within the nominated time, and you may respond within the further time nominated. blogs and journal posts – marking rubric pass (2) fail (1) c (3) d (4) hd (5) discusses and evaluates client interviews/client management primarily narrative summative conclusions without reasoned and referenced discussion reference to readings showing relation of theory to practice. c – reference to readings or additional materials without critical evaluation application and discussion. minimal narrative. descriptive analysis (what was said, observed, responses) critical discussion of readings showing application and understanding of range of sources and ideas. reviewed article 205 discuss/evaluate interprofessional relationships evaluates others’ performance and role primarily observational discussion of others role in interviews or other activities. d – critical discussion of readings and integrated discussion of found sources demonstrating capacity to relate additional sources to experiences evaluates working style, relational style, group dynamics, demonstrating learning from engagement with and critical observation of others. additional self-directed research and investigation. self evaluation learning style mainly narrative/descriptive discussion of own learning process including reactions to situations, identification of challenges, and strategies to overcome. d – identifies and discusses personal reactions responses and perspectives honestly and with insight. explores personal reactions with references to sources or different perspectives. insightful evaluation of own engagement with legal process identifying processes behaviours and work management issues. informed strategies to develop further with reference to readings and other sources as relevant. justice access/system issues identifies justice access/ system issues but does not discuss with reference to readings and extra research identifies and discusses system and access issues with reference to experiences on placement, with reference to broader interrelationship of justice access from whole system/social legal perspective. reasoned personal reviewed article 206 opinion; reference to up to date relevant resources. ethics and professionalism reference to relevant readings and professional standards in reference to work experiences crelates ethical issues arising on placement or elsewhere in own experiences and relates to ethical rules dconsiders found sources and applies with reasons to issues raised. evaluative discussion of readings relating to professionalism and ethics with apparent connections between day to day experiences and broader concept of ethical and professional practice. reasoned/ wellargued opinions. journal/blog topics brief and narrative response to issues showing personal thought but not going beyond readings; matters discussed in seminars; personal views. deep analytical discussion of journal questions showing personal insight and application of observations and experiences to underlying themes supported by reference to prescribed and additional materials reviewed article 207 reviewed article 208 appendix c reviewed article 209 reviewed article 210 reviewed article 211 reviewed article 212 (a) how matthew and margaret teach blogging, journaling and reflective practice (b) contextualising reflective practice and reflective writing (c) the challenge of teaching reflective practice and writing (d) bringing blogging into the equation (d) goal of our research (a) questionnaire: quantitative data (b) questionnaire: qualitative data (i) marker feedback (ii) blending summative and formative assessment with peer feedback (iii) sharing reflective writing with peers and being part of a community (v) sharing personal thought with peers and the impact on reflective writing blogs and journal posts – marking rubric book review the global clinical movement: educating lawyers for social justice edited by frank s. bloch [oxford university press, 2011, 400 pp., £46.80, (hardback)] the benefits of clinical legal education transcend borders as clinicians all over the world try to make legal academies and the legal profession more permeable to the advancement of the cause for social justice. spare a second and think about the everlasting global recession; the declining economies of the world; the incomprehensive welfare reforms; the ever changing face of the welfare benefits system; the crippling legal aid funding cuts; the progressive erosion of the rule of law in certain parts of the world and a deprivation of basic human rights. you will agree with me that this is the nightmare world that indigent communities face every day. clinical legal education programmes within law schools can be used to alleviate some of these problems. we can achieve this by setting up and running law clinics where law students, under the direct supervision of their lecturers, can provide free legal advice and representation to members of the public who otherwise would not afford solicitors and barristers’ fees for legal services. reaching out to other proponents of clinical legal education on a global level and setting up and running a law clinic in any jurisdiction requires a deep understanding of the socioeconomic, political and cultural fabric of each targeted country. knowledge of the social justice mission of clinical legal education and the importance of forming an alliance to perpetuate the global clinical movement’s future role in educating lawyers for social justice is also paramount. central to achieving the two objectives of clinical legal education, i.e. educating future lawyers and delivering legal advice, is the consistency in contributing to clinical scholarship by different clinicians from different jurisdictions whose experiences in clinical programmes is shaped by the different contexts in which such programmes are introduced, implemented and sustained. in an apparent response to the needs of clinicians and the research community to forging a global alliance for justice education, frank s. bloch and 50 other prominent clinical legal education scholars, drawn from different jurisdictions, centralised relevant information on the development of the global clinical legal education movement. the book succinctly describes a global clinical movement in motion; sweeping across five continents and elucidating the increasingly important role clinical legal education plays in the education of future lawyers. the book is a platform from which contributors describe the emergence of clinical legal education; its models and its benefits. among its’ themes, the book provides a helicopter view of the different pedagogical methodologies of clinical legal programmes while placing emphasis on the justice mission of clinical legal education. the book invites its audience to engage in the debates around the importance and the benefits of engaging relevant stakeholders in bridging the academic skill of thinking like a lawyer to the professional skill of lawyering. the book is littered with informative narratives of experiences of seasoned and leading clinical legal educators who explicitly highlight the challenges of trying to introduce, implement and sustain clinical programmes. nevertheless, amidst these challenges, the reader is constantly reminded of the importance of constantly engaging in justice education that links legal education and professional skills. the reader’s attention is drawn to this cause through a thorough examination of the influence of linking legal education and professional skills to law schools and the actual practice of law. it is this influence that stimulates vibrancy of the global clinical movement in generating a sense of collegiality among clinicians who might otherwise feel isolated in their own faculty because of perhaps, the feeling that they ‘do not fit.’ the subtitle -educating lawyers for social justicetells the reader what the book is all about, the values espoused by bloch and his team. it is from here that the reader is first introduced to the reasons why the now ‘global reach of clinical legal education has aided and facilitated its growth and acceptance’ (xxiii). it is also here that we engage with the argument that an emerging global clinical legal education movement is playing an increasingly important role in educating public interest lawyers for social justice and the empowerment of indigent communities. summary structurally, the book tells a coherent and logical story of the global reach of clinical legal education in 25 chapters arranged in 3 different parts. in part one, we are introduced to the emergence of clinical legal education through a vivid description of the different continental and jurisdictional contexts in which experientially based clinical programmes are introduced, implemented and sustained. in part two, we are guided through a maze of different ways in which clinical pedagogy and clinical programmes can be used to promote public interest lawyering in advancing a social justice agenda that aims at empowering indigent communities. it is argued that the idea of treating law students as empty vessels in which the theory of law and legal information is poured into through the use of a traditional lecture and/or seminar method of teaching substantive law is no longer tenable in modern societies. a critical analysis of the state of the global clinical movement is laid bare in part three. contributors take turn in making strong, opinionated and sometimes polemic suggestions for the future role of the global clinical movement in educating lawyers for social justice. they set forward a clear agenda for the global clinical movement to adopt in pushing forward a narrative that not only promotes clinical programmes but goes further in providing the world citizenry with a legal education that is socially relevant to the needs of our modern societies. history and influence bloch, with contributions from his team of clinical experts, presses home the point of the global reach of clinical legal education in several ways. the reader is made aware that while important early developments occurred in other countries and in other parts of the world, clinicians in the usa, britain, canada and australia ‘laid the groundwork for the modern clinical movement and set the stage for its spread around the world’ (p.3). in order to inform his and other clinicians’ arguments in the latter parts of the book, the text tells a story of the emergence of clinical legal education as a revolutionary pedagogical method and gives a narrative of the origins of cle in the usa, britain, canada and australia. the introduction and implementation of clinics in africa through the adoption of some models from the usa and britain, for example, is a good example of clinicians working together to promote clinical legal education as a global movement and a tool that aims at advancing the cause for social justice. the fact that ‘university legal aid clinics in africa and in developing countries can play a valuable role in supplementing the work of the national legal aid bodies’ (p.34) is a clear illustration of the need for a global reach of clinical legal education in educating lawyers for social justice and for promoting public interest lawyering. by making reference to the bologna process, a pan-european framework for promoting a convergent restructuring of higher education throughout europe, the contributors assert their view that this process creates an arena for experiential learning in legal education curriculum through the creation of clinical legal education programmes which may help in pushing forward an agenda for reforming legal education (p.132). chapter 9 of the book seeks to break the myth that the export of clinical legal education from the united states constitutes legal imperialism by arguing that expenditure on clinical legal education outside the usa by the usa government and its agents is far less compared to other investments in foreign assistance. the chapter concludes the first part of the book and argues that ‘the us export of clinical legal education is not now and arguably never has been legal imperialism’ (p.147). embedding and sustaining the book demonstrates the need for persistence even where the experiences of unsustainable clinical programmes may seem to be having a derailing effect on the global clinical movement’s momentum. the implementation and sustainability of clinical programmes in south east asia seem significantly affected by law schools that still preserve the status quo and ‘continue to use an archaic lecture-oriented pedagogical method’ adopted at the time when these law schools were established (p. 37). thus the movement’s goal to bring full accredited clinical programmes in south east asia and south asia that include a social justice aspect is far from complete. the contributors suggest that the mindset of the community must change if clinical legal education is to succeed in this region. they posit that ‘promoting legal aid and social justice can no longer be treated as an extracurricular activity, but instead must be undertaken as a regular activity of the law school, fully integrated and supported not only in the law schools, but also in the community’ (p.49). in central and eastern europe, the contributors trace the origins of the clinical legal education and the challenges faced by such programmes. they also propose potential directions for the future development of clinical legal education programmes. they discuss opportunities and challenges within the wider european context especially in countries where the adherence to the rule of law doctrine has been called into question. they argue that ‘the role of legal clinics in assisting in shaping the future profession is without any doubt a topic that should be constantly present in political negotiations and discussions within the legal profession and with regard to the long term-term success of the rule of law reforms’ (p.67). they have also observed that even though clinical legal education is not yet fully consolidated in latin america, there is still hope that that new approaches to clinical legal education based on the practical tenets of public interest lawyering (pil) will add to the momentum of the clinical movement in the region. in an apparently polemic fashion, the book states that ‘legal clinics in latin america have come to stay’ (p.83). the contributors argue that the ‘stand against formalism and the inspiration that some clinics’ pil cases have had on law students and professionals have made clinics an increasingly better known model for channelling expectations of legal education reform which so far has been deeply disappointing for law students and the communities that the law and the legal system should serve’ (p.84). justice education in the second part of the book, bloch and others seek to argue that access to justice must be seen and accepted as a central component of learning the law with ‘enormous transformative potential for both legal aid and clinical legal education’ (p163). they argue against the idea of treating law students as empty vessels, constantly bombarded with legal information and theories of law as a way of preparing them for future practice as lawyers. to assume that such future lawyers would be effective in the delivery of legal services within their communities upon graduation would be foolish. this is certainly one good reason why we find value in pursuing law school pedagogy via an integrated curriculum that incorporates experiential learning with the commitment to serve the community through legal practice. according to the contributors, ‘this opportunity often transforms the ways students think about social justice and their role in achieving it’ (p.181). nevertheless, it is also important to reinforce professional responsibility in clinical pedagogy that aims at educating lawyers for social justice because ‘education is the art of making human beings ethical’ (p.183). it is argued here that real understanding of legal ethics is best understood by students undertaking classes which expose them, in simulation or reality, to the actual practice of the law. the contributors argue that there is ‘need to ensure legal education which does not merely teach the rules and how to manipulate them, but which explores the ethical codes of the profession, the values which underpin those codes and the questions of social justice inherent in any legal scheme’ (p.194). clinical legal education can also be used as a ‘tool for social change’ (p. 209) through community service and street law programmes, especially in jurisdictions where law is seen as merely an instrument to preserve and prolong dictatorship and to perpetuate the interests of a privileged minority at the expense of the majority. as clinicians, we owe a duty of care to the students and the communities we serve and hence ‘law students should be encouraged to participate in community service and be given academic credit for their efforts’ (p. 238). furthermore ‘it is in the greater interest of society to make legal education more socially relevant, and the way to do that is to integrate socially responsive clinical programs into the law school curriculum’ (p. 250). an integration of the alternative dispute resolution (adr) and a clinical legal education component beyond the tenets of negotiation skills is effectively argued by bloch and his team: ‘in adr clinics and clinics that embrace adr, law students develop their professional identity and fundamental lawyering skills and values as problem solvers, conciliators, mediators, and peacemakers’ (p. 262). a movement in motion in the third and final part of the book, clinical legal education it is argued that ‘common educational goals and professional values can bring a diverse worldwide community of clinicians together in a movement aimed at transforming legal education into justice education’ (p.265). the spheres in which clinical legal education operate are presented as numerous, including legal aid, social justice, internal clinics and externships, sustainable development and good governance and as such there is no doubt that a ‘new jurisprudence on social justice is evolving out of clinical experiences, one that enhances the social relevance of legal education and offers great opportunities for the global clinical movement’ (p. 277). effectively argued is the story of the global clinical movement as a vehicle for the mission to educate lawyers and provide professional assistance and that this is a mission of continuous improvement in legal services and the pedagogy that underpins them. in order to sustain a vibrant clinical movement that recognises law schools as a bridge for community and professional engagement there is need to encourage, build and sustain contributions by different stakeholders such as academics, students, the community, government agencies, the legal profession and the alumni (p. 307). in general, bloch and his team point to the importance of scholarship on the effectiveness of the clinical pedagogy and its contributions to justice and they lament the locality nature of clinical scholarship given the potential for a global movement. they suggest clinicians should consider the audiences they write for ‘if clinical scholarship is to remain part of a larger conversation with an engaged community of law teachers’ (p. 320). in order to transcend borders clinical scholarship must sensitise cultural and national differences. a clear agenda for the global clinical movement is to avoid the promotion of leadership that is dominated by the western countries but that which is shared by ‘representatives from all regions of the world so that they can bring together the worldwide clinical movement needed to implement a truly global agenda’ (p. 336). the development of the clinical legal education movement requires a concerted effort for the consolidation of the work of clinicians in different jurisdictions and then setting ‘an ambitious yet realistic agenda for the future’ (p. 350). such an agenda must promote normative attractions to law and their recipe for accountability and then go further in rejecting ‘lawyer-dominated businesses which persist with positivist denial of justice objectives and individual preoccupation with last-century monetary gain’ (p. 362). the last chapter of the book is dedicated to the essence of the global alliance for justice education (gaje): ‘a network of people… diverse in origin, in expertise and in profession, who share the common goal of achieving social justice through education’ (p. 380). the reader’s perspective the part of the global clinical movement a reader may find particularly appealing is that the book’s core thesisthat clinical legal education is important in advancing the cause of social justice – is advanced early on in the book’s introduction (p. xxiii). bloch argues that the existence of clinical programmes around the world has helped ‘the committee of chinese clinical legal educators to push for expansion of clinical programs in china’ (ibid). in order to support his argument, bloch asserts early on in the introduction that ‘prominent examples of support for new clinical initiatives that reached across borders include south africa’s association of university legal aid institution’s work in nigeria that resulted in the establishment of the nigerian network of university legal institutions and the efforts by the polish legal clinics foundation, the russian clinical legal education foundation, and others to bolster clinical programmes throughout their region’ (ibid). the importance of the book lies in its ability to centralise clinical scholarship in a single volume. the global clinical movement oozes vibrancy into a global clinical movement whose agenda is, among other things, to lend support and provide a sense of collegiality to those members of the law faculty who may feel left out of the legal academy due to the nature of their work on clinical legal education in comparison to colleagues who teach non-clinical subjects. collegiality, which must be so engrained in the life of a legal academy, sustained by the unstinting dedication of fellow clinicians around the world, plays a pivotal role not only in the education of future lawyers for social justice but in safeguarding the future of the global clinical legal education movement itself. the value of the book lies in its ability to provide a platform for clinicians around the world to share their experiences and insights on establishing and sustaining clinical legal education programmes. the book’s year of publication is timely. the book was published in 2011 when the world was still reeling under a seemingly unending global recession making it even more imperative and inevitable for clinicians to continue to gather as a unit where ideas, insights and practices are shared and evaluated with a view of sustaining existing clinical programmes and establishing others. in this way clinicians meet an unmet need in the provision of legal services for members of the community who otherwise would not be able to pay for solicitors and barristers’ fees. a potential disadvantage is that with 400 pages, the book may be considered too long and readers may be put off by the sheer scale of the book; nevertheless, such a length can itself aid understanding of the text if it is read episodically, giving the reader an opportunity to reflect on and enable percolation of the ideas presented. the only other potential weakness to the goal of the book is the fact there is no inclusion of clinical education scholarship and/or contributions that reject the tenets or indeed benefits of clinical legal education. therefore the book may, potentially, expose itself to the charge of bias and polemic. however, the book may equally be deemed a project of advocacy and in this respect, it is good that bloch provides the reader with biographical information on each of the 51 clinical contributors who share their thoughts and experiences on the subject. in this way, the reader is made aware of the context in which these leading clinicians write before even reading their contributions in the book and can make their own judgements about the strength of the arguments presented. to conclude, this is an excellent book to read and to own. it does exactly what it says on the tin … educate lawyers for social justice. tribe mkwebu phd law candidate school of law faculty of business and law university of northumbria editorial locating clinic and ourselves within it elaine hall northumbria university, uk elaine.hall@northumbria.ac.uk in this edition we return to a key theme for this journal, mapping our clinical practice. why is this process of mapping so important? i’d like to advance the argument that mapping in academic practice can be seen as a mindfulness technique, enabling us to evaluate the past, to dream of and plan for the future and most crucially to experience the present. this awareness of where we are now allows us to be engaged actors, rather than the cranky passive consumers that john brehm describes: … we'd still be waiting for the next thing to happen in heaven, the next violin concerto or cotton candy festival or breathtaking vista to open beneath our feet, and thinking this place isn't quite what it's cracked up to be, and why in hell does everybody want to get here? we'd still be waiting for someone else to come and make us happy, staring through whatever's in front of us, cursing the light that never seems to change. mailto:elaine.hall@northumbria.ac.uk this time we use a number of lenses: geographically, in terms of partnerships and pedagogy and also theoretically. adrian evans and ross hyams’ paper is particularly useful as an aid to future travel, since they give us the benefit of a range of perspectives: they provide a large scale map of externship practice in australian clinical legal education, then swoop down to street level to give a case example of externship partnerships at monash university before gaining reflective distance on externships as a phenomenon, offering an analysis of strengths and weaknesses. clelia bartoli from palermo reports from the field not just on the development of separate clinics across italy but also on the sense that a movement is growing, suggesting that like-minded (she specifies philosophical and speculative as leading characteristics) law teachers have identified clinic as a vehicle for a larger social and pedagogic project. elaine campbell’s reflexive exploration of her practice as a clinical supervisor takes us further down this road, focusing on the internal tensions for the supervisor of ceding power to the student and the uncertainty that comes from disrupting the relational expectations. the eventual rewards are significant for (most) students and this is a telling account of a particular voyage. finally, rachel lofthouse reviews learning in landscapes of practice, a book that helps us to locate our work theoretically but not in a scary way! rather, she found it “a genuine invitation into other lives and ideas… thought-provoking, evocative and illustrative”. if as clelia bartoli suggests, we are inherently philosophical, we would do well to engage with the ideas in this book so as to be able to link our work into wider networks, across disciplines and into different maps. as usual, before signing off i would like to draw your attention to a series of upcoming events in the cle world. late this year, encle will host their 3rd conference: ‘(r)evolution of clinics in europe’. it will be held on 26 and 27 october 2015 at the faculty of law, elte university, budapest. the call for papers closed on 15th july and it promises to be a vibrant and exciting meeting, please see the encle site for updates www.encle.eu. looking further ahead, there are two events scheduled (relatively) near to one another in time and space next july. we are delighted to be able to give you early notice that for 2016 the ijcle conference with the association for canadian clinical legal education (accle) conference will be hosted by the university of toronto. the conference, entitled the risks and rewards of clinic encourages participants to reflect on the balance between risk and reward for all the stakeholders in clinic. in particular, we would like to encourage participants to include student and other partners’ voices in their presentations, ideally through collaborative writing and presentation in person or through video calling or recordings. http://www.encle.eu/ this will be followed by the international legal ethics conference vii (ilec vii), which fordham law school will host in new york city on july 14-16, 2016 focusing on legal education, ethics, technology, regulation, globalization and rule of law (www.law.fordham.edu/ilec2016). i hope many colleagues will be able to come to both events, since two papers for one lot of travel can be sold as good value to budget committees! please send me news of clinical events for our november edition as well as your papers from gaje, ijcle and encle. don’t stick them in a drawer when you get home, get them on the map. john brehm, fragment from getting where we’re going, poetry, january 2008 downloaded from http://www.poetryfoundation.org/poetrymagazine/poem/180547 clinic clients community groups professional colleagues governments and professional bodies the university academic and professional staff students http://www.law.fordham.edu/ilec2016 http://www.poetryfoundation.org/poetrymagazine/poem/180547 aba/ceeli’s law clinic programs in croatia* steven austermiller** i. introduction in 1991, croatia seceded from yugoslavia and was soon involved in a long, painful civil war that would last four years. when the fighting ended, croatia was an independent nation, but it had inherited its governmental institutions, judiciary and centers of learning from the previous regimes, yugoslavia and the austro-hungarian empire. these systems were not equipped to deal with the needs of a modern, democratic, free market-oriented society. as a result, croatia has spent the past decade attempting to transform its economy and governmental systems, with varying degrees of success. the introduction of practical skills training through the aba/ceeli1 clinical programs is a small but largely successful example of this slow transformation. a. the croatian legal system the legal system is a victim of croatia’s transition from a communist to a democratic society. while the main structures of the yugoslav judicial system remain, they are now being asked to perform more effectively. for example, under the communist regime, judicial efficiency was not significant. however, today, parties demand quick resolutions to their disputes. foreign and domestic economic investment depends upon the ability to have disputes resolved quickly and transparently. additionally, the failure to provide a fair and public trial within a reasonable time violates article 6.1 of the european convention for the protection of human rights and fundamental freedoms.2 despite these pressures, the judiciary now has a 1.4 million case backlog and over one million new cases are filed every year. this is an extraordinary number of cases, given the fact that croatia’s population is only 4.4 million. clearly, something is not working. * this article relies on the observations and findings made by professor terry wright in her capacity as consultant to aba/ceeli in the february–april 2002. ** steven austermiller is currently the country director for the aba/ceeli program in croatia. he graduated from northwestern university school of law in 1992 and, prior to joining aba/ceeli, was a partner at pedersen & houpt, a 50-lawyer business firm in chicago, il. 1 aba/ceeli (american bar association/central european and eurasian law initiative) is a non-profit ngo working in over 25 countries around the world. it uses american and local lawyers to provide technical legal assistance to developing countries in an effort to promote the rule of law. aba/ceeli has had a program in croatia since 1993. for more information about aba/ceeli and its various programs, see www.abaceeli.org. 2 croatia is a signatory to this convention. 58 journal of clinical legal education june 2003 aba/ceeli’s law clinic programs in croatia 59 one reason the system is failing is that the rules of procedure are inefficient. for instance, subpoenas for testimony are routinely ignored so cases must be frequently continued. attorney often fail to appear at hearings3, with no consequences, and new evidence can be introduced at the appeals stage, causing re-trials. it is not uncommon to hear of cases over ten years old. croatia has lost a number of cases in the european court of human rights because its judicial system is so slow.4 however, another significant problem stems from the fact that many of the participants lack the appropriate basic skills. many of the judges lack basic research and writing skills. they also often lack the ability to ‘stand up’ to attorneys who abuse the system or violate the rules.5 many attorneys and prosecutors lack advocacy skills. the problem is further compounded by the fact that individuals usually choose which legal career to enter (judiciary, private attorney, prosecutor, etc.) without any experience or information as to which path would be most appropriate for them. b. legal education in croatia there are four law faculties in croatia-zagreb, split, rijeka and osijek. zagreb is the capital and largest city in croatia while the other three are regional capitals. in some sense, each law faculty reflects the character of the very different regions. however, on paper at least, much of the system is standardized throughout the country. students enter the law faculties as undergraduates, as in most of the rest of europe. students matriculate after passing a standard entrance exam. while there is some migration to zagreb, most students attend the faculty closest to home. the ministry of justice pays for most full time students’ tuition. although the first year class usually totals more than 400 students, graduating classes generally have only 100 to 150 students.6 attrition rates are high for a variety of reasons. because the official unemployment rate is over 20%, students often leave school if they find a employment – even if it is outside of the legal world. in addition, many students leave due to boredom or lack of interest, as most classes are just long lectures, without any student participation. still others don’t drop out but rather extend for many years the standard four-year program by taking less than a full load of classes and delaying final exams. it is not uncommon for students to delay graduation for two, three and even more than five years. while this may seem bizarre to an american or english lawyer, students find no advantage in graduating quickly when there are no good jobs waiting. classes usually consist of the professor giving lectures from pre-written notes. students take handwritten notes on what is said and few textbooks or other books are used during class. casebooks are almost unheard of and the socratic method is not used. in addition, there is very little student participation. questions are rarely raised and open debates are virtually forbidden. until recently, there has been no attempt to incorporate technology into the learning process. 3 lawyers at the zagreb municipal have a 30% no show rate for hearings. 4 see, e.g., rajcevic v. croatia, 07/23/02 5 this is partially due to lack of experience. approximately two thirds of croatian judges have less than eight years of professional experience. most advance directly from law faculty to the bench. on the other hand, attorneys who are members of the croatian bar association (the only permitted court barristers) enjoy a great deal of privilege and power. they tend to control the court process to a far greater extent than do attorneys in, for instance, the united states. 6 zagreb is far larger than the other three and has roughly 1,000 first year students and roughly 300 graduates each year. the content tends to be theoretical, often historical in nature. finally, there is little effort to link the content to everyday circumstances or practical use.7 exams are orally administered, usually in a private, one on one meeting with the professor.8 the system is good at imparting certain kinds of information to students and accurately measuring their understanding of it, however, most students find their legal education to be of little practical use after graduation.9 most students graduate with ineffective writing, reasoning and advocacy skills. as mentioned above, many students choose their particular legal career path without any helpful information or assistance, as the law faculties provide almost no career planning resources. unfortunately, most professors have little practice experience. in addition, there is no “on campus recruitment” by lawyers or other employers, as can be found in north america. there are no publications given to students, explaining the pros and cons of the various professions. and, equally important, there are no publications or other resources explaining to students how to apply for jobs in particular areas, such as the state’s attorney’s office or the local municipal court. most students (outside of the clinical programs discussed herein) have never seen the inside of a courtroom or witnessed a trial or hearing. one the great ironies of croatia’s newfound media freedom is that most croatians know more about the american justice system (such as the ubiquitous miranda warnings) through american tv shows than their own justice system. ii. the osijek law faculty clinic osijek is the traditional capital of the region known as slavonia. it lies in the northeast portion of the country. it borders serbia (along the danube river) to its east, hungary (mostly along the drava river) to the north, and bosnia (along the sava river) to the south. it is traditionally a rich agricultural region. until the middle of the 20th century, slavonia was more prosperous than most of the rest of croatia. it also has a mixed croat-serb population, with a smaller hungarian minority. in the early 1990s, after croatia declared independence, the yugoslav army and ethnic serb irregular forces invaded slavonia. much of eastern and southern slavonia was occupied for several years, and osijek was surrounded on three sides by yugoslav forces and subject to regular artillery bombardment. after the war ended, a un peacekeeping force took over parts of the region and remained until 1997. as a result of this fighting, osijek was transformed into a bombed-out, refugee-filled city. the economy has yet to recover and one can still see bullet holes and shrapnel marks on the elegant nineteenth century façades, including those of the osijek law faculty building. the community may be short of resources, but the will to improve remains. igor bojanic and vjekoslav puljko are co-directors of the criminal law clinic in osijek, which was established with aba/ceeli’s assistance in 1995. when aba/ceeli discontinued funding after the second year, the clinic closed. in 2001, aba/ceeli was able to reestablish its funding and restart the clinic. the clinic’s new iteration has a different organizational structure and curriculum from the initial one. bojanic and puljko decided early in the planning process they that wanted as 7 while they are undoubtedly intelligent, well published and informed, most croatian professors have no practice experience so it is not surprising that they favor a theorybased approach to education. 8 the ministry of science and technology requires that students be examined orally. some professors augment the oral exams with written ones. 9 see report of professor terry wright, april 14, 2002, zagreb, croatia. 60 journal of clinical legal education june 2003 aba/ceeli’s law clinic programs in croatia 61 many students as possible to experience the clinic’s opportunities. so, all fourth year students have an opportunity to participate in the clinic. in each of the past two years, over 100 fourth year students have participated.10 since the directors opted for breadth over depth, each student participates in clinic activities for a limited period of time – about one month with a minimum 35 hours total. the class is divided into two groups of about twenty students who participate in the clinic activities simultaneously. the participants are then subdivided into four groups of about five students. the subgroups spend a week in each of three different offices – a prosecutor’s office, a private law office and a county court judge’s office. then, the students spend a week on a simulation, one subgroup acting as the prosecutor, one as the defense counsel and the third group playing the judge. at these different offices, “mentors” assist students with exercises. the students do not work with actual pending files, but rather are given typical assignments with real case files. while not revolutionary in some systems, this is usually the students’ first exposure to legal papers and a professional environment. during each week, the students spend about one half of their time working directly with the mentors and the other half working on their assignments. the mentors are local prosecutors, defense attorneys and a county court judge. a typical experience would be as follows:11 at the initial meeting for the students’ week with the prosecutor’s office, the mentor would give a presentation on what goes into a case file and the steps taken by the office prior to filing a suit. then the mentor distributes real case files to the five students and walks them through each document. students have a chance to ask questions about issues on process, documentation, rules of procedure and the prosecutor’s role. the mentor also provides information on where and how students can perform legal research. after this introduction, students are given an assignment with a partial file from an old case and are instructed to draft an indictment based on the documents in the file. after completion, the mentor discusses the students’ indictment, line by line. the students have this kind of experience at each of the three offices during their term. the skills they learn include basic drafting skills, critical and strategic thinking as well as criminal procedure rules from different perspectives. they will also have engaged in open discussions about ideas, tactics, style, etc. the students’ work is then forwarded to the directors, and the mentors discuss the students’ progress. in the fourth and final week of the clinic program, students participate in a simulation exercise. there, students are given a simulated case file, including police reports, expert witness statements, court investigation reports and other documents. one subgroup plays the role of the prosecutor, one group plays the role of the defense attorney and the last group serves as the trial court judge. after the groups draft and exchange court papers, they hold a mock closing argument. the mentors and the directors observe and then direct a final discussion session. this exercise gives students the opportunity to actually compete with each other in a ‘moot court ‘ setting. the mentors and directors provide essential observations and critical feedback. students are also required to maintain a journal of their activities throughout the month, which is then submitted after the completion of the simulation. 10 in contrast, the previous osijek clinic had admitted only the top few students. 11 see wright report, at 25. at the end of the term, students are given either a pass or fail grade. if they fail, students must reenroll because they cannot graduate from the law faculty without a pass from the clinic. one problem encountered is that some students must wait almost two years after taking the basic criminal procedure course to participate in the clinic. so, many students must re-learn portions of the criminal procedure code in their fourth year, to participate effectively in the clinic’s placements. to mitigate this problem, there is discussion about closer integration of the theory and practice components of students’ criminal law education. the clinic recently found office space at the law faculty and some of the aba/ceeli funding in the 2002 year went towards the purchase of furniture and equipment for the office. prior to that, the clinic was essentially run out of the co-directors’ offices. the program works well given the community’s limitations. osijek has a limited number of lawyers or judges who are willing to spend the required time serving as mentors. therefore, the program must rely on a few dedicated professionals who receive only partial compensation for their efforts, which requires that many students rotate through these few professional offices. although students have only one month to experience this program, they do learn some important practical skills and information, which was unavailable to their predecessors. iii. the split law faculty clinic the city of split lies midway along the dalmatian coast, almost directly south of zagreb. it is the capital of dalmatia and second largest city in croatia. split is the site of the ancient roman emporer diocletian’s palace, still intact today in the center of the old town.12 in contrast with osijek and zagreb, split has a distinctly mediterranean feel, with palm trees and white marble facades. split, like osijek, suffered from the wars of the 1990s when irregular serb forces took over large portions of inland dalmatia and the yugoslav navy blockaded split from the sea. although split was bombed during the war, it does not have the visible scares that mark osijek. split’s economy suffered in the 1990s, as tourists largely stayed away from the croatian coast. after several years of peace, the situation is improving. the split law faculty is the second largest in croatia. the split criminal law clinic received aba/ceeli funding in 1995–7 and partially survived the period of discontinuation of funds with a limited fourth year program that provided practical skills for around ten students. criminal law professor goran tomasevic may be the reason that the program survived at all. he continued the limited clinical program by donating his time and efforts so that a few students could continue to enjoy the benefits. when the aba/ceeli funding was restarted, the clinic was expanded and improved. now, the program has a third year and a fourth year component. the third year component has about 115 students this year. the first semester consists of students analyzing cases. they are given a set of new fact patterns each week, on a different topic. they then have the opportunity to think about how to apply the facts to the law they have learned in the previous two years. while not “clinical” in the strictest sense, this work does give students the opportunity to apply the content learned in other classes to real life situations. students learn how to think critically and practically and at the end of the semester, they are tested on their ability to apply the facts to the law. 12 interestingly, diocletious was from split and is known in history as the roman emperor who “split” the empire into east and west. 62 journal of clinical legal education june 2003 aba/ceeli’s law clinic programs in croatia 63 the second semester is devoted to court simulation. the class is divided into three groups. each group is then subdivided into five activity groups of roughly ten students. the activity groups represent a mock prosecutor’s office, defense attorney’s office, court, appeals court and “other”. students in the last group serve as journalists, scribners, witnesses, etc. the students pick which activity group they want to be in, based on an order developed by a complex formula using grades from the first semester, other criminal law classes and other considerations. all of the students work on the same fact pattern, which is developed by the director, goran tomasevic, and judge josip cule, the president of the criminal division of the split county court. the facts are based on a criminal case that is pending in front of judge cule. during the second semester, the students work on the case, using a file developed from the actual court file. they meet with each other and their mentors. while the mentors assist the students with questions and strategies, students are encouraged to find the answers themselves. initially, the prosecutor activity group drafts and presents its indictment. the defense group presents its response papers and the “other” group serves as a court panel, ruling on pre-trial issues. then, the groups engage in a mock trial, with the “other” group serving as witnesses, journalists and court reporters. finally, after the court group issues its decision, the groups prepare appeals and argue those matters in front of the appeal court group. while some groups do more work (prosecutors, defense attorneys) than other groups (appeal court, “others”), everybody has a chance to experience the difficulties, the frustrations and the challenges that real life criminal litigation presents. after the final simulations, the entire third year class watches the actual trial, on which their simulation was based. the county court has one large courtroom that can accommodate everybody and judge cule arranges for the trial to take place soon after the simulations are completed. this is usually the highlight of the year, as students can compare their trial with the real one. this year, the case was an attempted murder trial, which took place on april 29, 2003. the fourth year component is limited to 12–15 students. these students are chosen pursuant to a complicated formula and only the best students are accepted. some of the competition is due to the intense interest in the fourth year program’s content. however, many students also recognize that acceptance into the fourth year program gives them a head start in their job searches. the split fourth year program is similar to the externship placement components at osijek and rijeka. fourth year students receive about ten weeks of externship placement at various professional offices in the area. they are usually placed in groups of two students, for about two weeks at each office. the five office placements are at the county court, the misdemeanor court, the prosecutor’s office and two private defense attorney offices. at these placements, the students receive some basic practical guidance and are then given practical assignments. the program works in a fashion similar to the placement components at the other clinical programs. students tend to work on basic research and basic drafting. the mentors tend to give some guidance but try to make sure that students learn the process by themselves as much as possible. at some placements, students are given current tasks that the mentor must complete in the mentor’s practice. unlike the placement program at osijek, the students in split also attend a two-hour classroom session each week of the semester. there, students discuss practical issues with the professors, largely relating to the students’ assignments. students are required to keep a journal of their activities and must it turn in to the director, with all written work product, at the end of each placement. at the conclusion of the semester, there is a written exam relating to practical issues that students handled in their placements. the split criminal program reaches most of the third year students and is a very popular course. the fourth year program is also popular and well run, but is only for the elite students. the mentors’ offices are aware that they are dealing with the top students at the split law faculty. while most enjoy the work with students, they also see the benefit of having an inside look at potential recruits, especially since there is no organized recruitment regime and most jobs come through personal connections. so, some fourth year students receive job offers from these offices in addition to practical skills training. iv. rijeka law clinic rijeka (fiume in italian) is croatia’s largest port and third largest city. it is located in the northwest corner of the country, where italian influence is the strongest. in fact, between world war i and world war ii, rijeka was part of italy and even today, italian language can be heard on the streets and on local radio stations. rijeka has the reputation of being more cosmopolitan and business oriented than its two regional rivals, split and osijek. the rijeka law clinic survived aba/ceeli’s discontinuation of funding in 1997. this was due to the fact that the clinic’s directors, dr. vesna crnic-grotic, international law professor, and dr. aldo radolovic, istria county court president, were able to convince the law faculty’s hierarchy that the clinic should be continued with local law faculty funding. so, unlike split, the rijeka clinic did not have to rely upon extensive pro bono efforts by the directors and mentors. as a result, aba/ceeli’s funding in the past two years focused on improving and expanding the clinic’s resources, instead of the more basic assistance that it provided to the other programs. unlike the other aba/ceeli clinics, rijeka is a civil law clinic. fourth year students participate in this clinic after they have completed a series of basic law classes, including civil procedure. as with the fourth year program in split, the rijeka clinic has a limited number of positions (18), and only about one out of three student applicants is accepted. the program has three main components: externship placements, simulations and classroom seminars and a fourth experimental component, a limited live client clinic. in the externship placements, students spend about six hours per week for a total of ten weeks at a local professional office. most of the placements are in private law firms, but there were some new placements in 2003 at the rijeka municipal court and the rijeka ngo (non-governmental organization) center. unlike the rotation systems in osijek and split, the rijeka placements tend to be fixed for the entire semester. while this obviously reduces students’ opportunities to compare different professions, it gives them a more extensive experience with their mentors. it also allows for greater involvement in a legal file. it is difficult to assign anything other then a small, discrete task when the student has only a few weeks in the office. but in the rijeka program, the mentors can get students much more involved in a particular case. it appears that many of the lawyer mentors are giving students actual, pending work assignments (like drafting an opinion letter or a motion) and are using them in the case. as with other clinics, rijeka students are required to keep a daily log of their activities and then turn them in when the placement is completed. 64 journal of clinical legal education june 2003 aba/ceeli’s law clinic programs in croatia 65 the program’s second component is the simulation work. here, students participate in semesterlong simulated civil trials, which are developed by judge radolovic and based upon real life cases he has currently pending before his court. the students are divided into two main groups of nine and those groups are further subdivided into three activity groups – plaintiff, defendant and court. each group drafts the court papers from initial filing through to the trial and decision. along the way, the clinic’s staff assists the students but the emphasis is on making sure that students solve their problems themselves. outside experts are brought in to assist the students and this year, real medical and sports experts served as witnesses in the simulated case, which involved an athlete suing for damages resulting from a car accident. the simulation component has been improved with the arrival of the new simulation courtroom in 2003(funded by aba/ceeli). this is the first such facility in croatia, where students can practice their skills in a courtroom like setting. previously, students had to use a small office or classroom. aba/ceeli funded the furniture and equipment and the law faculty donated the building space. this is an important step because it shows that the law faculty is willing to make a permanent, visible commitment to practical skills training. the clinic’s third component is the classroom seminar. here, students receive basic information that is designed to help them with their work in the other components. the seminar consists of a weekly lecture series where guest professors, lawyers and judges speak about different aspects of a current legal case. the students are given extensive background information on that case at the beginning of the semester and the guest lecturers speak about aspects like legal ethics, examination, appeals, etc. at the conclusion, students engage in a mock trial. the fourth and final component is an experimental one, called “live client clinic”. under croatian law, students cannot represent parties in a lawsuit. they cannot sign pleadings or appear in court. this prohibition has made it difficult for croatian clinics to offer legal services to live clients. however, in 2002, the rijeka clinic decided to try an experiment. the clinic decided to offer quasi-legal services to other students. the services would be essentially researching and finding answers to students’ questions on their rights and responsibilities arising from their student status, in areas such as insurance, class credits, graduation, grades, housing, etc. the 18 fourth year students in the clinic would staff the clinic’s office and be available to receive questions. the theory was that students would have the opportunity, for the first time in croatia, to experience being completely responsible for somebody’s legal or administrative problem. they would learn how to handle a real client with a real problem. in practice, the live client clinic proved to be too ambitious. the students felt that this was extra work and tended to ignore this part of the program. apparently, the students were just too busy to handle the live client problems. in addition, since this part was apparently not incorporated into the grading scheme, students may have had less incentive to participate. as a result, the rijeka clinic is considering changes to the program that might make this component more effective in the future. v. the zagreb law faculty zagreb is the capital and largest city in croatia. it is three to four times larger than split, the next largest city. zagreb hosts most of croatia’s largest companies and receives most of the foreign investment and international assistance. zagreb also has the largest13, oldest14 and, arguably, most prestigious law faculty, the zagreb law faculty. until 2003, the zagreb law faculty declined to participate in clinical assistance programs. however, in 2003, professor ivo josipovic agreed to incorporate elements of the aba/ceeli clinic program into his second year criminal procedure class. the top 40 students (out of about 100) from the first semester of criminal procedure were accepted into the program. the students had a classroom seminar component similar to the one in rijeka, which included guest speakers, moot court practice and discussion about practical elements of criminal practice. the program also had an externship placement component. there, students were to spend about six hours per week during the semester, working at a private law office, a prosecutor’s office, a court or a prison. they were to be assigned mentors who were to brief them on the activities of the office and provide basic assignments relevant to pending cases. at the time of this writing, the program had just begun and aba/ceeli had yet to receive the results or details about the program’s administration. however, professor josipovic is a highly skilled and reputable professor and aba/ceeli has every confidence that this program will be a success. vi. conclusions while the clinics have different organizational approaches, each has found a way to teach the same basic practical skills. students are very pleased with the clinics and they continue to be among the most popular classes. students realize that this is their first and only pre-graduation opportunity to see what it is like to work in a court or a law office. students also learn basic drafting and other practical skills that they would not otherwise have. in addition, students have an opportunity to integrate (in some programs more than others) what they learn in theory with the real world. equally important, the clinics are designed so that students learn most skills by trial and error, on their own or with other students, instead of having the information handed to them in a lecture format. of course, some aspects of the programs could be improved. the results from the live client clinic experiment at rijeka were disappointing. in addition, the osijek clinic needs to better integrate the classroom information with the field placements. however, on balance, all the clinics have been a resounding success. the biggest challenge in the immediate future is financial sustainability. rijeka and split appear to have achieved this. osijek has not, but is considering some creative funding options. for zagreb, it is too early to speculate since its first semester is still running. 13 there were about 4,000 students enrolled in the zagreb law faculty 14 the zagreb law faculty was established in 1776. 66 journal of clinical legal education june 2003 evaluation of collaborative assessment of work integrated learning judith mcnamara and elizabeth ruinard1, queensland university of technology, australia introduction the international trend towards an increasingly standards-based approach to higher education and the resultant focus on the assurance of learning in tertiary programs have generated a strong emphasis on the assessment of outcomes across the higher education sector. in legal education, curriculum reform is highly prevalent internationally as a result of various reviews of legal education, including the publication in 2007 of the report by the carnegie foundation, educating lawyers: preparation for the profession of law, and more recently, the 2013 review of legal education and training (letr) in england and wales. the report of the letr included a recommendation to: “enhance consistency of education and training through a more robust system of learning outcomes and standards, and increased standardisation of assessment” (legal education and training review, 2013). the shift in focus of legal education has resulted in a reconsideration of the way in which outcomes are assessed. traditional assessment in legal education involves a mix of essays, case notes, problem solving tasks, research assignments and examinations which have targeted assessment of the understanding of the core areas 1 judith mcnamara is the assistant dean, learning and teaching in the faculty of law at qut. elizabeth ruinard is learning and teaching developer, law and health at qut. ( special issue problematising assessment in clinical legal education ) ( 10 ) of legal knowledge and legal reasoning skills. more recently assessment techniques have been broadened to include a range of instruments, such as role plays and simulations, for the assessment of legal skills. these assessments may lack authenticity in that they are decontextualised, restricted to defined knowledge, tasks and settings, and are subject to other constraints such as time limits in examinations (hughes, 2009). as legal education focuses more on the attainment of a broader set of outcomes encompassing soft skills, capabilities and attributes, more authentic assessment will need to be developed appropriate to this new environment, meaning that modes of assessment with strong application in real-life settings should be preferred. in designing new assessment frameworks, legal educators can draw upon the body of literature around the assessment of professional competence in medicine and other professional education. professional competencies in the context of medicine are well defined through a multi-dimensional model encompassing a broad range of knowledge, skills and attributes including soft skills, professionalism and metacompetencies (epstein and hundert, 2002). the existence of these competencies has driven more innovative approaches to medical education and assessment of outcomes (letr, 2013, p.142). for example, a commonly used assessment technique in medical education is the objective structure-clinical examination (osce) which is a “form of practical, usually simulation-based, assessment” (letr, 2013, p.142). this form of assessment corresponds to “showing how” in miller’s model. in the model there is a movement upwards and increase in complexity from the cognitive “knowing” and “knowing how” to the behavioural “showing how” and “doing”. figure one – a simple model of competence from: www.faculty.londondeanery.ac.uk/e-learning/workplace-based-assessment/what-isworkplace-based-assessment the assessment of medical undergraduates (and legal undergraduates) has tended to focus on the triangle base: “knows” – i.e. the straight recall of knowledge; and “knows how” – the application of knowledge to problem-solving and decisionmaking. assessing “shows how” is challenging but achievable through osce in the medical context. nonetheless with osce validity risks being lost at the expense of reliability, since complex skills, requiring an integrated professional judgment, become fragmented by the relatively short length of time assessors are able to spend at each station (van der vleuten, shatzer and jones, 2001, p. 646). the real challenge lies in assessing a student’s actual performance on the wards/in the consulting room (or with the client/in court). composite medical examinations and portfolio assessment have been recommended to assess “doing” in the medical context although this can be time-consuming and costly (van der vleuten, shatzer and jones, 2001, p. 649). in the light of the shift in emphasis in legal education to a more outcomes-based approach, the unique capacity of experiential learning in law, including clinical legal education, to contribute to and enliven the development and assessment of outcomes has come to prominence. experiential learning provides “rich contexts” for the implementation of more authentic forms of assessment (hughes, 2009). assessment of clinical legal education (cle) has unique insights to offer in relation to ways in which the legal curriculum might develop robust and academically accepted ways of assessing competence more generally. as new assessment instruments are developed it is indispensable that they be evaluated to ensure they satisfy the basic principles of assessment such as validity, reliability and fairness. in this regard van der vleuten proposes a “utility model” offering a framework for the evaluation of assessment instruments. the model is said to be useful in helping “educators make considered choices in selecting, constructing and applying an assessment instrument” (van der vleuten, 2005, p. 310). the paper will foreground the advantages of work-integrated learning (wil) for the assessment of professional judgment and demonstrate how such an impetus accords with van der vleuten's approach to assessment. wil is defined as an “umbrella term for a range of approaches and strategies that integrate theory with the practice of work within a purposefully designed curriculum” (patrick, peach et al 2008, p. iv) and subsumes cle and other types of work-based, experiential learning. the paper proceeds to explain the distinction between the learning outcomes versus professional competencies curricula, where wil belongs to the latter and where wil assessment has strong potential to incorporate multiple viewpoints and be discerning about the development of the student’s professional judgment. part of the wil assessment approach will be articulated with van der vleuten's position on validity, reliability and educational impact, with wil being well-placed for demonstrating emerging professional judgment because of the strong dimension of reflection and reflective writing on the wil learning experiences which occurs therein. legal education in australia in australia, the advent of the new standards-based regulation of the higher education sector, including the australian qualifications framework, and the threshold learning outcomes for law, are key drivers for reform. since the 1980s, australia has gradually shifted to a more outcomes focussed legal education regime. while the principal requirement for the academic qualification for admission to legal practice remains the prescribed areas of knowledge known as the ‘priestley 11’, this is supplemented by the regulatory framework for higher education incorporating the threshold learning outcomes for law. the educational requirements for admission as a legal practitioner in australia consist of an approved academic qualification and practical legal training. the academic requirements are constituted by an approved course of study representing at least three years full-time study of law and a satisfactory understanding and competence in the prescribed areas of knowledge.2 there are eleven prescribed areas of knowledge: criminal law and procedure, torts, contracts, property, equity (including trusts), company law, administrative law, federal and state constitutional law, civil procedure, evidence and ethics and professional responsibility.3 generally the course of study is a university bachelor’s degree, bachelor honours or juris doctor. as tertiary qualifications, such courses are regulated by the australian qualifications framework (aqf) which provides a comprehensive, nationally consistent but flexible framework for all qualifications in post-compulsory education and training in australia. comprising fifteen qualifications, ranging from certificate i to doctorate, the aqf specifies the relevant skills, knowledge and application of skills and knowledge as well as volume of learning for each qualification. the aqf guidelines articulate the main criteria for defining qualifications based on the specific characteristics of education and training at each qualification level. these characteristics are expressed principally as learning outcomes. law qualifications in australia are typically either level 7 bachelor, level 8 bachelor honours or level 9 juris doctor. 2 for example refer to rule 6 supreme court (legal practitioner admission) rules 2004 (qld). 3 for example in queensland see attachment 1 to the supreme court (legal practitioner admission) rules 2004 (qld). for example, bachelor honours degree qualifications must be designed and accredited to enable graduates to demonstrate the learning outcomes expressed as knowledge, skills and the application of knowledge and skills specified in the level 8 criteria and the bachelor degree descriptor. graduates at this level will have advanced knowledge and skills for professional or highly skilled work and/or further learning. knowledge: graduates at this level will have advanced theoretical and technical knowledge in one or more disciplines or areas of practice. skills: graduates at this level will have advanced cognitive, technical and communication skills to select and apply methods and technologies to: · analyse critically, evaluate and transform information to complete a range of activities; · analyse, generate and transmit solutions to complex problems; and · transmit knowledge, skills and ideas to others. application of skills and knowledge: graduates at this level will apply knowledge and skills to demonstrate: · autonomy, well-developed judgment; and · adaptability and responsibility as a practitioner or learner. in addition to complying with the descriptors for the relevant qualification, the outcomes for the qualification must reference the threshold learning outcomes (tlos) developed for the discipline of law and implemented in 2013. the tlos were developed by discipline scholars appointed by the national office of learning and teaching and are defined in terms of minimum discipline knowledge, disciplinespecific skills and professional capabilities, including the attitudes and professional values expected of a graduate from a specified level of program in a specified discipline area. one set of tlos pertains to both level 7 and 8 qualifications whilst a separate but comparable set exists for level 9 qualifications. the tlos for level 7 and 8 qualifications comprise tlos including: tlo1 knowledge, tlo3 thinking skills, tlo4 research skills and tlo5 communication and collaboration but for this discussion the focus falls particularly on tlo2 and tlo6. typically law schools in australia have developed and articulated program learning outcomes which reference, incorporate or in some cases directly mirror the tlos. for the purposes of this paper, the tlos will be treated as if equivalent to program learning outcomes. different approaches might be taken however, in accordance with the principles of whole-of-course design, and in order to provide assurance of learning, the tlos would usually be developed throughout the course and mapped to assessment in individual units. in addition to the academic requirements, an applicant for admission to legal practice must also have completed the practical legal training requirements. the completion of an award which includes the competency standards for entry-level lawyers, along with a minimum of fifteen days supervised experience in a law or law-related work environment, serves to fulfil the practical legal training requirements. the prescribed competencies comprise skills (lawyer’s skills, problem solving, work management and business skills, and trust and office accounting), compulsory practice areas (civil litigation practice, commercial and corporate practice, and property law practice) optional practice areas (any two of various practice areas) and values (ethics and professional responsibility). each practice area includes a number of specific descriptors in addition to a number of elements for which relevant performance criteria are defined. these criteria in turn list specific tasks that the student must be able to perform in order to demonstrate competencies. accordingly, it is apparent that in australia, there is an epistemological divide between the assessment of outcomes for the purposes of academic qualifications in undergraduate law and the assessment of specific competencies, broken down into specific tasks in the graduate diploma in practical legal training, completed after the undergraduate qualification. in the australian system legal clinics and other wil subjects such as externships are generally completed in the undergraduate qualification. the placement component of the practical legal training (plt) is largely assessed on a pass/fail basis upon completion of the required hours rather than the demonstration of specific competencies or outcomes, unlike undergraduate wil placements. this renders the assessment approaches for practical legal training somewhat at odds with van der vleuten’s recommended model, which advocates the assessment of integrated competencies. the whole-of-task approach is foregrounded in the competency emphasis presently receiving endorsement. assessment in wil is particularly wont to capture the performance of integrated competencies through the demonstration of whole tasks or a series of associated tasks and evidence of associated judgments made and attitudes revealed. wil assessment is also liable to encode the perspectives of multiple assessors in the workplace, utilise different weightings of criteria, negotiated criteria and a more ‘qualitative’ approach than is available in other contexts, as per the above model (van der vleuten and schuwirth, 2005). wil in law wil implicates learning in three domains: learning theory (understanding how to learn), critical reflection and capability (brodie & irving, 2007). capability involves transferrable skills and know-how, and discipline specific knowledge and skills, essentially, professional competence. “capability” is used here to signify the ability to apply different professional skills and knowledge in the workplace in a general sense rather than a particular sense. given these components of wil, the relevant tlos that might particularly be assessed in wil include: · tlo 6(b) reflect on and assess their own capabilities and performance, and make use of feedback as appropriate, to support personal and professional development. · tlo 6(a) learning and working independently; · tlo 2(d) a developing ability to exercise professional judgment. while the capability outcomes learned and assessed in wil might include a range of knowledge, skills and professional judgment (maurer and cole, 2012), wil is particularly well placed to assess professional judgment because it “can offer an efficient method of teaching students about professional values and identity essential to becoming effective lawyers” (maurer and cole, 2012, p. 143). tlo 2(d) requires law graduates to be able to demonstrate a developing ability to exercise professional judgment. professional judgment generally has been defined as the “ability to use knowledge, skills and judgment to perform effectively in the domain of possible encounters in professional practice”.4 according to the commentary on the tlos, it includes ‘the application of knowledge, skills and professional values to serve the interests of clients, justice, the profession and the public good’ and ‘an understanding of the consequences of professional decisions’.5 this current investigation is thus particularly concerned with the assessment of the developing sense of professional judgment in general in the student and even though this has chiefly been interpreted to relate to ethics and professional responsibility (e.g. evers, houston and redmond, 2011), the approach adopted here is to consider professional competence more generally. professional competence includes the exercise of professional judgment, discretion and reasoning in the application of knowledge and skills in a professional context. it is posited in this paper that professional competence in this sense cannot be dissected into a series of knowledge propositions or professional skills; professional competence is dependent on the understanding of the importance of the context in which knowledge and 4 kane, mt, 1992. the assessment of professional competence, sage. 163-182. 5 kift , s, israel, m & field, r. 2010. threshold learning outcomes for the llb. altc. skills are applied and requires the exercise of judgment and discretion (cooper and ord, 2014). the importance of experiential learning in the development of professional competence is highlighted by the carnegie report, which suggests that legal education “should seek to unite the two sides of legal knowledge: formal knowledge and experience of practice” (sullivan, colby, wegner, bond and schulman, 2007, p. 8). it has been advanced that clinical legal education and experiential learning are the most favourable environments for students to learn about and practise professional judgment. the good practice guide for the teaching of tlo 2 ethics identified as areas for further investigation (evers, houston and redmond, 2011): · best practice for learning and teaching professional judgment, including clinical and experiential legal education; and · the design of effective feedback and assessment methods for determining students’ developing ability to exercise professional judgment. wil assessment assessment practices in wil might be said to be more concerned with assessment for learning, than is more traditional assessment which focuses on assessment of learning. this diverges from traditional legal assessment such as essays and examinations which effect the assessment of knowledge of legal doctrine and theory and where law is taught in a traditional academic environment. such a situation offers limited opportunity to assess the application of knowledge and skills in a professional context (hewitt, 2008). in contrast to traditional forms of assessment, wil assessment tends to highlight the centrality of the learner as an active participant in the assessment process. assessment is critical to how students make sense of their experience, elevating the learning experience from considerations of process or the application of specific knowledge and skills, to the understanding and exercise of professional judgment. this centrality of the learner is evident in common forms of assessment in wil which include learning plans, reflective journals, reports, student presentations, classroom discussions (or “rounds”), oral questioning, portfolios, supervisor’s assessment and career plans. assessment of performance in the workplace can occur through observations, extracted examples of performance of workplace tasks, and various forms of simulation. in wil it is difficult to predict the learnable moments that will present during the experience, and accordingly, assessment of wil is generally holistic, focusing on the development of the student’s level of self-understanding, efficacy in the workplace, and awareness of career options rather than on the attainment of particular knowledge or skills (bates, 2003). after sylvester, the legal clinic’s context is unique in that it uses a “real client/real emotions, has an unknown dynamic/ changing and evolving factual perspectives, has an unknown outcome/uncertain content and is delivered through a distinctive working relationship with a supervisor” (2015, workin-progress). with this dynamic in mind this paper focusses on assessment of professional competence in the clinic generally rather than on the specific knowledge and skills that may be developed during the experience. while these may be incidentally assessed, the key emphasis of the assessment falls upon the student’s individual learning strategies and their transformational learning through the reflective process. (these relate to learning to miller’s “showing how” and “doing”). despite the student-centred nature of the various wil assessment methods, they nevertheless might be limited in assessment of professional competence where they rely on the student’s own claims of learning, rather than demonstrated competence (brodie and irving, 2007). engaging the supervisor in the assessment can provide a direct assessment of professional competence. however it is important that where a workplace supervisor is involved in the assessment process they clearly understand what it is they are being requested to assess and that well-defined criteria addressing the required learning outcomes are developed. an emerging interest in collaborative assessment which combines input from the student, workplace supervisor and academic supervisor seeks to find alternative ways of involving supervisors in the assessment process. collaborative assessment involves the active participation of both the student and the workplace supervisor in the assessment, in addition to the academic supervisor. for example, zegwaard, coll and hodges (2003) propose a framework for workplace assessment mediated by academic supervisors and workplace supervisors. bates, bates and bates (2007, p. 127) suggest that: “university and workplace staff should also supervise student assessment collaboratively, negotiating the detailed requirements with each student and ensuring that appropriate personal reflection on the experience has occurred”. according to ram, 2008, the use of a portfolio assessment which requires students to provide evidence of learning is a means of supplementing collaborative assessment to ensure that the learning outcomes of wil are accurately assessed. it is recognised, however, that there can be some limitations to portfolio assessment. portfolios also have the advantage of fostering learner-centred education and active learning as the students take on their own learning responsibility and effectively manage their own learning. other advantages include the easily shared dimension of electronic media (in eportfolios) which enable the students’ learning to reach a wide audience in a meaningful way. in addition, the program of learning for students is evaluated in eportfolio using pre-determined criteria, thus obliging students to devise a specific plan and generally adhere to the plan (tosun and baris, 2011, 47-8)). further, the ability to present oneself in a professional manner, which the usage of portfolio affects, is an important skill to be acquired by the emerging professional. some of the disadvantages of portfolios and eportfolios, however, carry the risk that if academics do not model, direct and support the students sufficiently in learning how to reflect, the students tend to find this process overly challenging and come to resist reflective assessment whenever possible, thus failing to develop adequate reflective skills with sufficient confidence (p.48). formal assessment of reflection is recognised as contributing to a more profound learning experience for students, raising what might otherwise merely be considered to be work experience to a transformative learning experience from an academic point of view. the author has previously proposed a collaborative model for the assessment of wil that is reliant on evidence from a mix of sources to ensure professional competence is assessed. the assessment model proposed was: a placement plan individually negotiated between the academic, student and supervisor; a student portfolio or journal which includes student assertions as to capability and direct evidence of work undertaken in the placement, and a supervisor’s report. more recently cooper and ord, 2014, have proposed a collaborative assessment implicating a three-way critical review of practice which focusses on the planning, delivery and evaluation of a specific project undertaken by the student during the placement. the utility model suggested by van der vleuten provides a framework within which to evaluate the collaborative model of assessment. utility model the utility model proposed by van der vleuten (1996) holds that methods of assessment of competence can be evaluated using a framework to weigh the utility of the assessment method according to certain criteria: validity, reliability and educational impact. the framework also implicitly addresses two further variables, acceptability and cost/practicality. the model was developed in the context of assessment of clinical competence in the health sciences. competence as referred to by van der vleuten designates an “aggregate of different components or latent attributes” where expertise in a component allows a person to act professionally regardless of the particular nature of the situation or circumstances. (1996, p. 42) for the purposes of this paper, professional competence refers to the emerging exercise of professional judgment, which cannot necessarily be fragmented into specific, demonstrable competencies. in this regard, competence as defined by van der vleuten and assessed in the health sciences may be more closely aligned to the particular competencies which are the domain of practical legal training than it is to the intellectual competencies and emerging professional judgment that more appropriately belong in the domain of the undergraduate law degree. however, this distinction only serves to heighten the importance placed by van der vleuten on assessment being holistic rather than being reduced to assessment of the component skills and knowledge that students are required to perform. after van der vleuten, it is important to verify that those assessment approaches and instruments adopted are characterised by validity, reliability and educational impact or consequential validity, acceptability and feasibility (messick cited in van der vleuten and schuwirth, 2005, p. 314). validity expressed simply, validity of assessment refers to whether “the assessment measures what it purports to measure” (hewitt, 2008, p. 145). an assessment method might be shown to be useful if results of the assessment correlate highly with subsequent student performance (van der vleuten, 1996, p. 51). van der vleuten acknowledges the deficiencies in much of the research in relation to assessment validity; however trends are emerging from the literature. studies reveal an unexpectedly high correlation between different methods of assessment, e.g. between free response tests and multiple choice questions. (see also driessen, e., van der vleuten c. and van berkel, h., 1999) it is contended that the content of the assessment is more relevant to the validity of the assessment than the format of the assessment (p. 51). for example, the validity of a multiple choice quiz is not fixed but depends on the content of the questions. further, particular assessment types might be more valid in measuring some outcomes than others. van der vleuten posits that “what is being measured is not dictated by the method but rather what is put into the method” (p. 51). in the context of a portfolio assessment, it might be argued that the validity will be closely linked to the assessment encoding precise task descriptions and specific criteria for assessment. if the assessment is of specific skills or capabilities then these would need to be the specific criteria for the assessment. more general criteria will not result in the assessment of specific skills and capabilities. similarly in relation to a supervisor’s report, if specific skills or capabilities are not specified, the supervisor’s assessment of competence in the work placement will not provide any measure of any particular outcome. van der vleuten warns against breaking capabilities down to behavioural components in order to promote objectivity as this may lead to the assessment instrument not assessing what is intended as it will not reflect the complexity of the skill being assessed (p. 51). accordingly, in order for the wil collaborative assessment model to be considered to be valid, it would be a pre-requisite that the particular outcomes being assessed are specified, either in the subject learning outcomes, or negotiated in the placement plan. the criteria for the portfolio and the supervisor’s report would then need to refer specifically to these outcomes. in the proposed law wil assessment model the outcome being assessed is professional judgment rather than particular skills or knowledge and as such it may not be necessary for specific outcomes to be established. it will be necessary, however, to be explicit in establishing what is meant by professional competence, and the criteria and standards that must be met. the need for consistency is paramount. a further issue that might impact on the validity of collaborative assessment is that the assessment might arguably be assessing the ability of the student to articulate professional competence rather than the demonstration of competence. however, as argued by cooper and ord, 2014, the ability to articulate one’s competence is more important than merely being competent. in this regard the "think aloud interviews" proposed by krieger and martinez, 2012, call for assessment of experiential learning that focusses primarily on reasoning rather than performance. inspired by the medical domain's "think aloud" protocol, this experimental assessment method has been developed to identify the different kinds of cognitive processes used by students as they solve problems in practice. according to such an approach, students in a clinical program are allocated a hypothetical problem that is typical of work they have undertaken in the program. they are then recorded as they talk through the problem, with the hypothesis being that by prompting students to talk about a problem without a filter, a great deal can be ascertained about what they are thinking “in practice”. (in certain domains, however, “think aloud” is only used for research). reliability assessment can be said to be reliable if it is “objective, fairly administered, and consistently marked” (hewitt, 2008, p.145). in the field of the health sciences and many other disciplines, assessment of professional competence has been found to present reliability issues demonstrated by variable performance of candidates across tasks. the reliability of assessment is said to increase with the number of items being assessed; assessments that contain only a “small sample of items … produce unstable or unreliable scores.” (van der vleuten, 1996, p. 48) further, the reliance on a single assessor is also said to reduce reliability; reliability is increased where various assessors are used for each item of assessment. van der vleuten suggests that clinical ratings used in clerkships in medical schools are “hopelessly unreliable” (1996, p. 49) as they are based on unstandardised performance and are not on direct observation. other issues impacting on reliability in wil are the close relationship between the assessor and the student, and the need to assess performance over an extensive period in the past. for these reasons, the reliability of the workplace supervisor’s assessment in the wil law model might be questioned. the portfolio assessment is intended to address this issue; the notion of evidence from a mix of sources resembles van der vleuten’s support of sampling of a range of assessors’ professional perspectives on the item being assessed. further, cooper and ord’s study indicates that the provision of relatively detailed grading criteria supports the supervisors in making reliable assessments of the students’ performance. however, it may not be reliable if the samples of work provided are not sufficient to disclose the student’s capability in the workplace, particularly if the outcomes assessed are broad and not specific. the issue of reliability of a participatory collaborative assessment in a professional placement is examined by cooper and ord. the study concluded that the reliability of the selfassessment and supervisor assessment was improved by the use of more detailed standardised criteria. there is some discussion about inter-rater reliability or a measure of reliability used to assess the extent to which different raters agree in their assessment decisions in this study. mostly, however, it is the phenomenon of proportionately higher marks being globally awarded to critical reviews as opposed to those allocated to essays which is more intensively emphasised by these authors with reasons for this being suggested (cooper and ord, 2014, p, 524). the issue of reliability may not be as of much a concern in the assessment of outcomes in an undergraduate program, which is not assuring attainment or particular competencies, however it remains an issue to be weighed in evaluating the assessment model. hewitt, 2008, argues that subjectivity is an issue in any skills assessment because of the degree of subjectivity that is inherent in the assessment process. while explicit marking criteria which break skills down into specific components can improve reliability, this strategy has the drawback of trivialising and atomising the complexity of the skills being assessed (van der vleuten, 1996, p. 51). however, as cooper and ord demonstrate, it is possible to design explicit criteria which retain the holistic assessment of professional competence. further collaborative assessment which engages all three parties in the wil relationship actively participating in grading improves validity as it is not limited to the exercise of judgment by a single marker. educational impact and acceptability; feasibility the van der vleuten model also includes consideration of educational impact or “consequential validity” (van der vleuten and schuwirth, 2005, p. 314); given that assessment drives learning, the impact of assessment on learning should be considered (van der vleuten, 2005). it might be argued that the wil collaborative assessment model addresses this factor positively because it is based on biggs’ constructive alignment theory. hence learning activities and assessment tasks are designed to align to the learning objectives of the subject. the authors acknowledge, however, that there is a dearth of literature sharing such insights and suggest that this might be related to the near-impossibility to: “study the impact of assessment on learning without knowing about the context of the assessment” (van der vleuten and schuwirth, 2005, p. 314). the provision of feedback to students on their performance in the placement is another significant educational matter. in this instance, stuckey et al (2007) argue that recording student performance, providing prompt feedback and training students to receive feedback are key principles that should be met by wil in law. involving the supervisor in the assessment is a means of ensuring that feedback is provided. however, the need to provide regular feedback throughout the wil experience also needs to be addressed. this might be an issue in relation to the overall design of the wil subject rather than necessarily an assessment issue. acceptability, an associated concept, is where students’ perceptions of the assessment process are positive and where they believe that the assessment has been conducted according to the stated procedural guidelines; they have obtained valuable insight into their current level of attainment and they have received useful feedback as to how to rectify their shortcomings and enhance their strengths (mckinley, fraser, van der vleuten and hastings, 2000, p. 574). an issue emerging in relation to acceptability is the common feedback from students about the difficulty they frequently experience in regard to carrying out reflection. feasibility refers to the quantum of assessment and assessor training deemed sufficient and necessary to facilitate the conduct of a valid and reliable assessment at the relevant level, together with the provision of structured verbal and written feedback on student performance, with specific prioritised strategies for improvement which students perceive to have high educational impact. feasibility is therefore what is considered reasonable and cost-effective to meet the purpose of the assessment. (mckinley et al, p.578). it is acknowledged that more could almost always be done but that it is necessary to put limits somewhere. conclusion the current international trend towards a more outcomes based approach to legal education has prompted legal educators to reconsider assessment and other educational practices more generally. the investigation of a kind of epistemological divide between assessment of learning (e.g. in the llb) and assessment for learning (eg wil in particular), with practical legal training sitting perhaps somewhere in the middle, may lead to progress in this regard. assessment techniques currently utilised in wil in legal education and other disciplines suggest possible approaches that are more focussed on the assessment of outcomes or capabilities than other more traditional methods. despite the innovative approach taken in assessment in wil in law, there has been limited research into the effectiveness of such assessment to date. the utility model proposed by van der vleuten provides a positive framework within which to evaluate assessment practices in order to provide continual improvement both in the assessment of wil and of other aspects of legal education. the application of the model to an existing assessment approach in a wil subject in law suggests that further refinement of assessment could lead to improvements in assessment validity and reliability as well as impacting positively on the educational impact of the assessment, its acceptability, cost and feasibility. exploring issues related to assessing the developing sense of professional judgment and professional competence in the student, cle offers unique models of assessment that might also be adapted to the legal curriculum more generally to unite the dimensions of discipline knowledge and the experience of practice. the augmentation of reflective processes in both realms might further make a positive contribution to the holistic development of the legal practitioner through the various aspects of australian legal education. references bates, m. 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[type text] [type text] [type text] ijcle vol 23 no 3 reviewed article: clinic, the university and society to work or not to work… before law school: apprehension, confidence, and cynicism among law students yung-yi diana pan[footnoteref:1],city university of new york, usa [1: diana pan is assistant professor in the department of sociology at the city university of new york] abstract most socio-legal scholarship does not examine pre-law school preparation, more specifically, work experience. the recent american economic recession brought many working adults back into the fold of school. with regard to legal education in particular, how might work experience before law school affect students’ perceptions of the profession, themselves, and their career trajectories? and, how do these experiences vary between law schools, and among law students? drawing on an ethnographic study at two divergently-ranked american law schools between 2009-2011 (the beginnings of the economic crisis), i argue that student work experiences (or lack thereof) before law school matter for their own perceptions of their school and overall career outlook. i typologize those students who transitioned immediately from undergraduate to law school as “conventionals,” and those with work experience prior to commencing legal education as “returnees.” i find that overall, returnees are more confident about completing law school, yet cynical about legal education, while their conventional counterparts respect the pedagogy but remain apprehensive regarding their career outlook. in this respect, work experience provides a form of “capital.” notably, most immigrant students in this study are conventionals, and i provide some suggestions to better incorporate these students who already feel as if they are posturing in an unfamiliar cultural and professional environment. clara worked for three years between college and law school. when asked if she had advice for aspiring law students, she said: “i would encourage them to work for a while before they go to [law] school because i think it will give them some perspective on school so they won’t get so stressed out about it… i think, it just makes you more of an asset to the school.” scott, who also returned to law school after working, suggests aspiring law students “do a little soul searching. and find out why you want to go to law school and what it really is you want to end up doing.” clara was a researcher before law school, and scott, a banker. students who worked before law school often see their pre-law school experiences as strength and recommend their pathway to others. most literature and representations of law students focus on those who immediately transition to law school after college graduation, which is the typical pathway. the experiences of students like clara and scott suggest that students like them, who may diverge from the so-called “modal” student, represent a fertile area for study. debates abound within the american legal profession as to the purpose of legal education, and the best course to educate law students.[footnoteref:2] removed from the apprentice model, american law schools have become largely an intellectual exercise. some literature speaks to the merits of apprenticeship and clinical courses during law school, but most focus on how students learn to “think like lawyers.”[footnoteref:3] further, most scholarship paints in broad strokes a generally homogenous experience for all law students. [2: see bethany rubin henderson, ‘what is the purpose of law school?’, 53 j. legal education, 48-79 (2003); wayne s. hyatt, ‘a lawyer’s lament: law schools and the profession of law’, 60 vand. l. rev. 385 (2007).] [3: see anthony g. amsterdam, ‘clinical legal education – a 21st century perspective’, 34 j. legal education, 612-618 (1984); elliot s. milstein, ‘clinical legal education in the united states: in-house externships and simulations’, 51 j. legal education, 375 (2001); kelly terry, ‘externships: a signature pedagogy for the apprenticeship of professional identity and purpose’, 59 j. legal education, 240-268 (2009).] prior research has addressed divergent experiences of law students, particularly between those from differently ranked law schools. but these works do not necessarily engage the meaning and effect that personal backgrounds, such as age, race and ethnicity, socioeconomic history, and importantly, work experience have on students’ perceptions of themselves – as law students and as aspiring attorneys. in this paper, i underscore how pre-law school work experience may serve as a primary influence, and personal background as secondary on student perceptions of the profession, themselves, and their career trajectories. in other words, the experience of working before law school serves as a form of capital. i also unpack student experiences by focusing on the conjoined role of school rank, immigrant background, and race. in particular, i find that the nonwhite students in this sample tend to not engage in pre-law school work experience, thus are deficient in this particular capital. the findings unveil a fresh understanding of the impact of various identities, and how a current change in american law student demographics requires creativity in defining these identities. the implications speak to legal career preparedness for law students, generally. drawing on an ethnographic study at two divergently ranked american law schools between 2009 and 2011, i argue that student experiences before legal education influence their approach to their schooling, attitude toward law school, and career outlook. my findings suggest that work experience before law school seemingly produces better prepared law students, which may lead to more competent lawyers. however, it also appears select students—native born, white students— are more likely to work before law school and garner capital. racialized immigrant students – in this case, asian americans and latinos – do not as frequently reap these benefits. i begin by situating this discussion within literature on professional education, social capital, and stereotype threat. i then briefly discuss the data and methods, followed by the findings. i offer a typology of pathways through law school, typologizing students who transitioned immediately to law school as “conventionals” and those who worked before returning to school as “returnees.” findings suggest returnees report more knowledge and comfort with the profession, express more cynicism toward law school, and are more excited about their forthcoming careers. conventionals view law school as an intellectual exercise, yet are apprehensive about their schooling and career. i argue that returnees and conventionals think about law school differently; returnees are cynical experts, and conventionals are adoring imposters. further, many of the asian american and latino law students transitioned immediately to law school after graduating from college. as conventionals, they are already worried about their performance in law school, but race and immigrant background add another layer of anxiety. i provide some possible explanations for the differences, followed by analysis and discussion. literature review professional education social scientists’ unwavering interest in professional education has produced voluminous scholarship examining the socialization of neophyte doctors, surgeons, and social workers among others.[footnoteref:4] professional students learn the norms of their respective professions through rigorous education that prepares them academically, socially, and most of all, professionally for their careers. in addition to learning how to do professional school, these students must also assimilate the demeanor and cultural expectations within each profession.[footnoteref:5] [4: see howard s. becker, blanche geer, everett c. hughes, and anselm l. strauss, boys in white: student culture in medical school (1961); charles l. bosk, forgive and remember: managing medical failure (1979); spencer e. cahill, ‘emotional capital and professional socialization: the case of mortuary science students (and me)’, 61 social psychology quarterly, 101-116 (1999); carrie yang costello, professional identity crisis: race, class, gender, and success at professional schools (2005).] [5: becker et al.’s seminal work (1976) on medical students finds that neophyte doctors, at the end of medical school, learn to become medical students.] an overriding institutional language and culture characterize legal education.[footnoteref:6] first year students adapt to expectations and assimilate norms of the profession, which favors the “modal” student. as timothy clydesdale describes, [6: howard erlanger, charles r. epp, mia cahill, and kathleen m. haines, ‘law student idealism and job choice: some new data on an old question’, 30 law and society rev. 851-864 (1996); robert granfield, making elite lawyers: visions of law and harvard and beyond (1992); elizabeth mertz, the language of law school: learning to “think like a lawyer,” (2007); robert v. stover, making it and breaking it: the fate of public interest commitment during law school (1989).] the typical (i.e. modal) first-year law student is a white male in his early twenties, who speaks english as his first language, attends law school full time, expresses high self-confidence, possesses no physical or learning disabilities, is neither married nor has children, plans 0-9 weekly hours of paid employment during the first year, and comes from an above-average socioeconomic background.[footnoteref:7] [7: timothy t. clydesdale, ‘a forked river runs through law school: toward understanding race, gender, age, and related gaps in law school performance and bar passage’, 29 law and social inquiry, 711-769 (2004).] there is no guarantee that this archetypal law student will perform well in law school, but these students possess advantages, especially the ability to identify with the established law school culture. clydesdale’s “modal” neophytes have one less script to learn than other students. for example, students from working class backgrounds often “fake it to make it” in law school by avoiding conversations about their parents’ jobs, and hide non-middle class speech patterns.[footnoteref:8] [8: granfield, 1992] non-modal law students cannot escape what they perceive to be deficient from their backgrounds. and because of that, they carry with them apprehensions as they embark on their legal training. they, like their traditional peers, pore over outlines and study for exams. they learn how to dress for interviews, and use legal language. but students who deviate from the mold often feel as if they do not genuinely belong. while virtually all law students contend with anxiety at times, non-modal students engage with a different set of concerns. these students often do not have the social capital to navigate the established cultural scripts of law school. the qualitative value of social capital social capital invigorates individuals with a sense of well-being and familiarity. known as “tastes,” divergent signals of class and privilege persist in societal stratification.[footnoteref:9] in other words, knowhow for the purposes of socioeconomic mobility is an insidious characteristic of social capital. mobility requires a certain type of social capital. embedded in nuanced cultural practices, this “right” type of capital can lead to educational, social, and cultural rewards.[footnoteref:10] [9: see pierre bourdieu. distinction: a social critique of the judgment of taste (1979).] [10: pamela e. davis-kean, ‘the influence of parent education and family income on child achievement: the indirect role of parental expectations and the home environment’, 19 j. of family psychology, 294-204 (2005); jacquelynne s. eccles and pamela e. davis-kean, ‘influence of parents’ education on their children’s educational attainments: the role of parent and child perceptions’, 3 london review of education, 191-204 (2005); robert ream, ‘toward understanding how social capital mediates the impact of mobility on mexican american achievement’, 84 social forces, 201-224 (2005).] how does this capital relate to lawyers and law students? in a study of canadian lawyers, sociologists fiona kay and jean wallace find that although women junior attorneys had as many senior mentors as their male counterparts, they did not accrue the same types of professional benefits.[footnoteref:11] the authors conclude, “the social position of women within the legal profession does not afford them the strategic capacity to mobilize their social capital through mentoring relationships to secure coveted career outcomes, particularly in the forms of earnings and career advancement.”[footnoteref:12] junior attorneys all have access to mentors, but the qualitatively different outcomes between men and women necessitate an evaluation of the divergences in the value of social capital. without the right type of capital, some individuals (i.e. those who are not male and not white) may experience anxiety about their social positions. evidence suggests this concern begins in law school, and that managing stereotype threat is a key aspect of this concern among non-modal students. [11: fiona m. kay and jean e. wallace, ‘mentors as social capital: gender, mentors, and career rewards in law practice’, 79 sociological inquiry, 418-452 (2009).] [12: kay and wallace, 445, 2009.] stereotype threat among professional students students experience status anxiety when they feel as though they are imposters in an educational setting. psychologists pauline rose clance and suzanne innes first identified the “imposter phenomenon” among high-achieving women who “maintain a strong belief that they are not intelligent; in fact they are convinced that they have fooled anyone who thinks otherwise.”[footnoteref:13] the imposter phenomenon directly relates to “stereotype threat” that negatively affects african american students’ perceptions of their own academic abilities.[footnoteref:14] stereotype threat can also characterize university professors’ assessment of their teaching evaluations;[footnoteref:15] employees who feel undeserving of their jobs;[footnoteref:16] and professional students at elite institutions.[footnoteref:17] studies on status anxiety and imposter syndrome among professional students often include the experiences of neophyte attorneys (as law students, and fledgling attorneys). rigorous legal socialization creates a sense of under-preparation among these students as they aspire to join an elite profession.[footnoteref:18] at the same time, women and minority lawyers experience human capital barriers to their achievement,[footnoteref:19] including unequal secondary and collegiate education that hinder their professional success.[footnoteref:20] [13: pauline rose clance and suzanne innes, ‘the imposter phenomenon in high achieving women: dynamics and therapeutic intervention’, 15 psychotherapy theory and practice, 1-8 (1978).] [14: claude m. steele, ‘a threat in the air: how stereotypes shape intellectual identity and performance’, 52 american psychologist, 613-629 (1997).] [15: christine brems, michael r. baldwin, lisa davis, and lorraine namyniuk, ‘the imposter syndrome as related to teaching evaluations and advising relationships of university faculty members’, 65 j. of higher education, 183-193 (1994).] [16: william c. mcdowell, nancy g. boyd, and w.m. bowler, ‘overreward and the impostor phenomenon’, 19 j. of managerial issues (2007).] [17: becker et al. 1976; costello 2005; debra j. schleef, managing elites: professional socialization in law and business schools (2006).] [18: granfield 1992; mertz 1997.] [19: hilary sommerlad and peter sanderson, gender, choice, and commitment: women solicitors in england and wales and the struggle for equal status (1998).] [20: hilary sommerlad, lisa webley, liz duff, daniel muzio, and jennifer tomlinson, ‘diversity in the legal profession in england and wales: a qualitative study of barriers and individual choices’, legal board – university of westminster (2010).] the literature remains deficient however, in the divergent psychosocial outcomes of being an anomaly. american law students who transition to law school immediately following their undergraduate careers ostensibly appear to represent the modal law student. students who took time off between law school and college appear non-modal, yet, unlike the nonwhite students in others’ research, they reported more confidence about the pursuit of their juris doctorates than their modal counterparts. these findings do not correspond to current literature on stereotype threat, or professional socialization, yet may speak to a hidden benefit of a particular form of social capital. rather than focusing on the “modal” versus “non-modal” descriptions of law students, i propose a new characterization that underscores the role of social capital. in this paper, i present the nuances of modality and social capital by focusing on the reported experiences of returnees and conventionals. data and methods data derives from semi-structured interviews with 107 american law students, and nonparticipant observations of law student organizations between 2009 and 2011. interview questions were the same for all respondents, regardless of race, gender, or law school attended (although some respondents chose to elaborate on their answers while others did not). some interview questions included, “how would you describe your law school experience, thus far?” “did you feel adequately prepared to attend law school?” and “do you have friends, family, or relatives with law degrees?” the two field sites are on the west coast of the united states, and consist of highly ranked western tier 1 (wt1), and lower-ranked metro tier 4 (mt4). these field sites were selected to capture divergent student characteristics, and to also accentuate similarities among law students, more generally. although there are some school-level differences, conventionals and returnees populate both law schools. their status as law students do not qualitatively differ, despite difference in school rank. more of the mt4 group were returnees; the typical mt4 student in this sample spent at least two years working, and a good portion of those students worked as legal support staff. those who embarked on their legal studies immediately following college were a minority, in contrast to the wt1 respondents. i gained entrée with the administration through established contacts at each institution. i contacted student leaders from panethnic student organization websites at each campus, and observed, and recruited at meetings and orientations. i used an intentional snowball sampling method, asking respondents to refer me to friends from their small groups. i believe this method mitigated selectivity bias as law schools assigned the small groups at random, so they were racially, socioeconomically, and geographically heterogeneous. in the end, my sample consisted of asian americans, latinos, whites, and “others”[footnoteref:21] (refer to table 1 for sample breakdown by race). [21: other racialized law students include black/african american, persian, and one mixed-race, latino/asian student who identified as such. the other mixed-race students in this sample identified with a conventional racial category (asian american, latino, or white).] table 1. sample by panethnicity asian american latino white other western tier 1 22 23 9 3 metro tier 4 23 12 12 2 total 45 36 21 5 table 1 shows the study sample by race and ethnicity and by law schools attended, consisting of 45 asian americans, 36 latinos, 21 white americans, and five law students who did not fall into these broad categories. asian american and latino law students are overrepresented in this study, and the other two combined racial categories serve as a control. this sampling anomaly thus may not be representative of american law school demographics where asian american and latino law students represent 7.2 percent and 9.3 percent of the student body, respectively, as compared to this sample’s 42 percent asian americans and 33.6 percent latinos. the strategic oversampling however, allows us to direct attention to these particular populations’ unique experiences in american law schools.[footnoteref:22] [22: oversampling is a method used to establish not only representation, but also reliability in the respondents’ experiences. as sociolegal scholarship does not generally focus on asian americans and latinos in particular, oversampling provides a more accurate representation of their experiences.] the law students in the sample had one shared characteristic: they were all enrolled in law school during an extremely uncertain economic period. graduate school can act as a shelter from career unknowns, and the u.s. “great recession” of 2007-2009 was no exception. working adults went back to school in an effort to weather financial insecurity; many college graduates also found themselves transitioning immediately to graduate schools. as the data for this paper was collected between 2009 and 2011, the sample includes large numbers of both “traditional” and “nontraditional” law students, providing an ideal platform to understand how work (or lack thereof) before law school influences student experiences in law school.[footnoteref:23] roughly 45.8 percent of the sample worked for two or more years before returning to law school. those who worked for less than one year often interned temporarily, or held hourly jobs, such as baristas, and were coded as conventionals. i conceptualize “work before law school” as a permanent or semi-permanent paying job that was, or could lead to an eventual career. some examples are legal secretary, paralegal, banker, consultant, and counselor. students who worked in the service industry for a long period of time, and tout gaining “life experiences” were also coded as returnees. [23: traditional students refer to those who transitioned immediately from college to law school, which is the common practice. nontraditional students return to school at an older age, often to prepare for a second career, and are commonly known as owls – older and wiser law students.] interviews lasted between 45 minutes and two hours, and mostly took place on or near the law schools (with some exceptions at respondents’ homes, or places of work). i took notes during the interviews, and also recorded the conversations. all interviews were transcribed and later coded. initial thematic coding identified anxiety among respondents about entering an elite profession. i noted differences between students’ work experiences before law school, and divided the sample into those who worked before law school (returnees), and those who entered law school immediately following college graduation, or held odd jobs for less than one year (conventionals). overall, returnees were cynical about legal education, but they appeared confident in their legal and “real world” knowledge when compared to their conventional peers.[footnoteref:24] conventionals described having gained knowledge about law school from hearsay, and imagined difficult tests, copious amounts of reading, and responding to “cold calling.” in contrast, most returnees garnered work experience from law-related jobs, and/or established mentor/mentee relationships with attorneys, and possessed expert knowledge about law school and the profession. findings suggest students’ lives after college and leading up to law school shape their educational experiences and career trajectories. [24: two students in this sample worked for over 10 years in the service industry before returning to law school, and are coded as “returnees” because they mentioned garnering “life experiences.”] findings – adoration versus cynicism student experiences before law school influenced their learning of the law and the new language and decorum that accompanies it. table 2. characteristics of returnees and conventionals returnees conventionals · worked for two or more years between college and law school · law school is a means to an end · possess a good idea of what to do with one’s law degree · see law school as a welcomed relief from work responsibilities · cynical toward pedagogy and competitive culture in law school · transitioned immediately from college to law school, or worked odd jobs in anticipation of attending law school · law school is an intellectual exercise · a law degree can be versatile · often unsure of what to do with a law degree · open to second career after law school · optimistic about future looking at table 2, we see that returnees better understood the legal profession and had a clearer idea about the type of law they wished to practice than conventionals. students who had work experience for two or more years between college and law school looked to applying their “real world” skills. they were however, cynical about the pedagogy and competitive culture among law students. conventionals on the other hand, regarded law school as an intellectual exercise. they lauded the versatility of a law degree, and remained hopeful about their career options. without regard to race, the students who transitioned immediately to law school—conventionals—were not confident about their abilities to succeed in law school. but, they also overwhelmingly “loved” the experience. the majority of the returnees, brimming with confidence, considered themselves “experts,” yet remained cynical about legal pedagogy. in the next section, i describe the characterization of imposter versus expert. conventionals often aligned with an imposter identity where they felt underprepared to undertake law school. returnees, on the other hand, asserted an expert identity bolstered by their previous work experience. the imposter and the expert ben is a white law student at mt4, and anticipated a career in law while he was pursuing a bachelor’s degree in political science, and a master’s in public policy. he worked as a paralegal for four years, to learn more about the profession before investing time, energy, and money in law school. working as a paralegal affirmed his affinity for the profession, and kindled an interest in real estate law. regarding whether he felt prepared for law school, ben said, “i felt overly prepared. with four years of work in the legal profession, i felt i was [comfortable with] a lot of the material. … i had a pretty easy first year and it was fun! i didn’t have to work. i [have] pretty much had to work all my life, and it was the first time i could just do school.” ben’s enthusiasm further translated into a sense of confidence. with regard to his first year classes ben says, “civil procedure – i mean civil procedure is so easy because i actually dealt with a couple of complaints and a couple of lawsuits from start to finish. i never went to trial or anything like that but i dealt with a majority of it, and it made application of the stuff i didn’t know so well, easier.” likewise, spencer, another white mt4 law student also worked as a paralegal before law school, and found a smooth transition. he says he likes law school “a lot!” and credited his three years working as a paralegal: “i mean i worked with lawyers. honestly, they just said if you keep up with all the reading, and take good notes, that it all worked out. … there’s no secret to it. you work hard and then you will do well.” this advice was reassuring to spencer and freed him to enjoy law school. law students like ben and spencer espoused an expert identity. working among attorneys as paralegal or secretary provided them with professional familiarity, which led to a boost in confidence—a belief that they will be able to succeed in law school. further, professional interactions with attorneys assuaged their anxieties about being able to face the challenges of law school. these students intimated they were less anxious about exams and answering questions in front of peers and professors than their peers. returnees who did not work in law-related fields also espoused confidence. while they did not claim expertise in topical matters, they approached law school with ease and comfort. when asked to compare college and law school, clara, a white student from wt1 says, “i’ve been more confident [compared to college] and i know who i am more. i just like my relationship with school more now. … just the fact that i’m more confident with who i am has made law school a lot better.” scott, a white student from mt4 reports, i don’t really care about grades, which is another anomaly in law school. to me, an indicator of success in law school is feeling prepared to take the bar [exam]. and feeling prepared to be successful in practice. i’m not too concerned with the day-to-day monotony of tests and grades... my primary concern is making sure that i’m prepared to substantively know what i need to know to practice law. scott could focus on the long-term aims of his career in a way that conventional students could not (i.e. short-term grades). even without the “expert” legal knowledge of students like ben and spencer, these students were confident about their abilities to complete law school in a way that conventionals weren’t.[footnoteref:25] [25: although returnees were also anxious about exams and found learning the new materials overwhelming, they were generally positive about the workload.] esperanza, a latina wt1 law student who followed the conventional route, was determined to become an immigration attorney. esperanza describes her law school experience: a roller coaster, like a never-ending roller coaster. it’s ups and downs. constantly ups and downs. it’s feeling really into it one day and feeling like “wow, i’m studying really hard and completely immersing myself in this, in this really hard experience, [this] legal program!” and then at other points, “i don’t know what’s going on, i don’t know what i’m doing here. and, i don’t know why they let me in. and maybe i need a career change, before i’m even a lawyer.” esperanza feels like an imposter. she and others who feel this way seem as dedicated to becoming attorneys as their expert peers. after all, the psychological, financial, and social costs of legal education are rather high. but, they espoused less confidence when they spoke about law school. to take another example, marvin, an asian american law student at wt1, said: the stress, it’s natural. it’s part of the territory when you come to a school like [wt1]. when you first start out, you always think everyone is smarter than you. everyone has more experience than you. they come from a lot better schools… it puts a lot of pressure on you! and, you never know how you’re going to do in class, just because you’re surrounded by all these people. marvin also felt like he was posturing. amid a sea of peers who attended american ivy league institutions for college, conventionals at wt1 felt the sting of competition. not only did they need to learn new material, and make friends, they were also status-conscious about their undergraduate alma maters. brett, a white conventional student, summarizes this sentiment: i was terrified before my first exams because i came from a state school; i went to [a large public school], right? most of my classmates, like yuan for example, came from yale and there were people from harvard, and [wt1], right? like great schools. … [t]hat anxiety of “how do i really stack up against the best of the best of my generation right now? how do i stack up against that?” because schools such as wt1 attract high achieving students, most of the sample assumed that their peers attended elite undergraduate institutions. wt1’s entering class profile, which prominently lists the prestigious undergraduate institutions of admitted students, supports this assumption.[footnoteref:26] nor did having attended elite schools prevent conventionals from experiencing anxiety about law school; yuan had graduated from yale but he expressed no less anxiety about law school than brett who attended a public university for undergraduate. [26: students are admitted from yale, harvard, university of pennsylvania, etc. a quick internet search readily yields this type of admissions information.] yuan is asian american; findings reveal that asian american and latino law students in this sample – many of whom are first-generation college students (refer to figures 1a, 1b, and 1c) – are particularly likely to feel marginalized and therefore feel like imposters. akin to part-time law students in the united kingdom—whose demographics deviate from their full-time peers—asian american and latino law students experience marginalization. andrew w. francis and iain w. mcdonald find that part-time law students’ divergent backgrounds from their full-time peers disadvantages them toward successful law school completion.[footnoteref:27] for one, part-time law students exist at the intersection of multiple disadvantages—they are typically older, ethnic/racial minorities, attended lower-ranked institutions, and earned less impressive grades. as suggested by the francis and mcdonald, unlike part-time students, full-time law students are advantaged by being a part of the normative representation: “the full time law student typically belongs to a broad tribe of students who have moved, relatively unproblematically, from a-levels to degree-level study—they share ‘a feeling of inevitability’”.[footnoteref:28] part-time students do not possess the requisite experiences, or habitus, of their full-time counterparts. in the same vein, asian american and latino law students, most of whom are first-generation college students, also lack the habitus of the normative american law student. i will return to this discussion of racial disparities. [27: andrew w. francis and iain w. mcdonald, ‘preferential treatment, social justice, and the part-time law student’, 33 journal of law and society, 92-108 (2006).] [28: andrew francis and iain mcdonald, ‘after dark and out in the cold: part-time law students and the myth of “equivalency”’, 36 journal of law and society 220-247 (2009).] as figure 1 suggests, the majority of the students in this sample hail from families where at least one parent is a college graduate. beyond college however, we see that fewer than half of the asian american and latino students have even one parent who completed graduate or professional school, while more than half of white students do. figure 1. highest degree attained by one parent among asian american, latino, and white law students in sample all of the white students with parents who hold professional degrees, have at least one parent who possesses a jd.[footnoteref:29] minority students tended to assume that their white peers have lawyer relatives or friends, an assumption the sample supported—35 percent of the white students without lawyer parents have relatives or close family friends with law degrees. in other words, the assumption, which increased asian american and latino law students’ imposter syndrome, that white students have jd role models and networks, appears accurate. [29: while this may be a sampling anomaly, it does not distract from the divergent experiences between conventionals and returnees.] falling in love and going through the motions. law students have complex feelings about law school. the intellectual pursuit of law infatuates some. others describe law school as a means to an end. as a rule, conventionals “fall in love” with law school – its rigor, status as an elite profession, and the intellectual value attributed to complex language and puzzle-like problem solving – and returnees see it instrumentally. conventionals’ experiences of falling in love bryn adores law school. an asian american wt1 law student and a conventional, she is enamored by the intellectual pursuit of law. she says, “i have been really lucky to find professors that i love and respect. and, i have been lucky to find organizations that are socially conscious of dynamics – especially around race and gender.” conventionals from both schools admired their professors’ intellect and appreciated like-minded peers. their friends and the logic of learning the law was a source of excitement. natalia, a latina student from wt1, also found law school exciting, albeit at times overwhelming. she said: what surprised me about law school is that it’s a big exercise in reasoning, more so than being taught concrete information about the law. it’s more general doctrines of the law rather than concrete, which is what i had expected prior to coming. for students like bryn and natalia, social aspects are a large part of their schooling. natalia distinguished the role of the latino law students organization, saying, “in terms of social experiences, it’s better than what i expected. i have been able to make a lot of friends here.” brandon, one of the conventional respondents at mt4, hails from the american midwest. an asian american student, he relocated to metropolitan city to attend mt4. he connected his love for law school directly to its challenge: i do love it here, even when it gets really rough and i haven’t slept anywhere close to enough, exams are coming up, i don’t feel prepared for them... i think that everybody has worked harder than me, knows more than me and i feel like i’m constantly the underdog. even though i know i’m not – i’m top ten percent of my class… so, i do think you have to love what you’re doing in order to be able to keep pushing yourself like that. because you are working almost every waking hour in law school, or at least you should be. … and, you can only do that if you really like what you’re doing. even if you don’t like the subject matter. real estate law, not the right thing for me to be doing. but, i love learning about the law and doing the law. so, even if i have to take an unpleasant class, it’s part of an experience that i really want. so it keeps me going. and of course, i have had some wonderful and fantastic teachers. my first property teacher, fantastic. hence the future interest – wills, that stuff. i did really well there. my criminal class, i loved criminal law, that was an amazing teacher. it was probably my best experience yet in law school. fantastic. as seen from his comments, brandon enjoys law school. he acknowledges competition as a part of the law school experience, but he thrives in this environment. moreover, brandon enjoys his coursework because they are all related to the law. whitney, another asian american student from mt 4, was raised in metropolitan city, and grew up in an impoverished neighborhood, which prompted her interest in pursuing criminal law. she directly relates her difficulties in law school to her youth: i actually did really poorly my first semester. when i started law school, i was only twenty-years-old! so, i couldn’t even drink the first week of school. … i was having a really hard time grasping some of the concepts, just because there were lots of archaic words and concepts i didn’t get because of lack of experience in life, especially things to do with financial cases. some of them [cases] talked about finances or business. my parents handled all that stuff for me [in my life]. so when i started law school, i had no idea what was going on with investing money or economics or any stock market. i had no idea! so that was really hard for me and i had to learn legal concepts, but i hadn’t even learned the foundational aspects of it yet. like, i had to learn more things than the other students because they already knew all that stuff! in spite of these difficulties, whitney notes, “it’s been really good. the professors have been good.” yet she herself suggests that the returnee path might have been good for her, attributing her lack of understanding the legal language to her youth and deficient life experiences. transitioning immediately to law school meant more than learning the legal language, or learning about the law. for whitney, it also meant learning about finances and how to budget. purposive schooling and a break from work those returnees who seem to really enjoy law school frame it as a welcomed break, and an opportunity to seriously explore a new career. in general, they are cynical about law school pedagogy, but appreciate a respite from work. they also look forward to graduation. supriya, an asian american wt1 student, worked for three years on political campaigns in washington d.c. she says, “law school is different. just different than any other type of school i’ve ever been in. [it] took like the first semester to figure out how to read a case and how to study. it just takes more time than school’s ever taken me before. but it’s easier than working on a presidential campaign.” supriya appreciates law school. she describes remembering how to study as a task but not necessarily a difficult one. will, a white mt4 student who worked in record stores and restaurants for roughly 10 years before pursuing a law degree, described law school this way: i think i had the advantage in some ways because i did work all the way through undergrad. i was working forty hours a week and going to school full time. so as far as time management goes, i was pretty well prepared to face a whole lot of work. because i wasn’t working at all during the school year, in some ways i felt like i had more time than ever to do my [school] work. for the first time in his academic life, will is only focusing on his course work. the workload does not overwhelm him, and he credits his 10 years of work experience for this. across the board, returnees described time management as their largest asset. because returnees worked before law school, they espouse learning “life experiences.” it is possible that the experiences are conflated with their older age—they are more mature and take more seriously their schooling and career development. regardless, having worked (and maturing during the time of work) seems to affect how returnees perceived law school. returnees also didn’t share conventional students’ pleasure in law school’s social scene. cindy, a white student at wt1, was an engineer for several years before returning to school. she says: i was used to having a lot of responsibility at work and i felt like i fulfilled a purpose. and then coming to law school, your purposes are all very selfish. you’re not doing good for other people or a company; you’re doing good for yourself by getting good grades. and, i’ve never really given a crap about grades or differentiating myself on that basis. … and then also, i think that the way law schools teach is really inefficient. just the methods – reading a casebook and the socratic method. it’s not the way i learn the best. so that was frustrating. also, and this is perhaps the biggest thing, by and large, but there are very few people that i actively like in law school. and, i think it’s just that i’m way too chill. and most people are all uppity and gunnerish. and like, i don’t know, i find them irritating. as a returnee who worked for several years, the pervasive “gunner”[footnoteref:30] atmosphere in law school disappointed cindy. further, she disliked the pedagogy and found the socratic method to be inefficient. her perceptions contrast sharply with the collegiality among peers by conventional students. [30: respondents describe “gunners” as law students who will stop at nothing to achieve the best grades, and success. they are perceived as straining to answer professors’ questions, tearing pages out of library casebooks, and compete with their peers to acquire the best internships. and, they boast about their accomplishments. these types of students are so pervasive (and disliked by some), that the tag “gunner” is in common usage by law students, including appearing on the popular legal blog, abovethelaw.com.] similarly, ricardo, a latino mt4 student who, before law school, worked several years for insurance companies, had this to say: honestly, i think [law school]’s fine. it’s not the paper chase.[footnoteref:31] there are people that are super stressed out. but it’s not that intellectually challenging. it just seems like at first, you have to learn how to go to law school. once you know how to do law school, you just kind of use the same process with different subjects. … it is a different way of thinking, it is a different way of applying certain things with certain rules, right? you have your facts and you have your rules. and, you have to learn how they interact. and, once you learn that process, it’s just a matter of learning new rules and new facts. go through that process of how they interact. how to craft an argument or something like that, using those facts and rules and their interactions. [31: a 1973 film about an elite american law school, the paper chase stars actor john houseman who plays unforgiving law professor, charles w. kingsfield jr.] the intellectual experience that excited conventional students held few charms for returnees. this might suggest that returnees gain less from law school than conventionals. but the picture becomes more complicated when we take into consideration the students’ panethnicity, or race. rac(e)ing toward the jd the conventional and returnee groups included students of all racial backgrounds, but the way students talk about their experiences signaled divergent expectations. figure 2 presents pre-law school preparation by race and ethnicity. figure 2. pre law school preparation among asian american, latino, and white law students in sample only 24 percent of the white students transitioned immediately to law school from college, or held temporary jobs that were easy to quit; the remainder typically worked in career-building or professional positions prior to law school. roughly 56 percent of asian american and 53 percent of latino respondents were conventionals, and the remainder typically worked as temporary interns or volunteers. perhaps the asian american and latino students who hail from families with professional parents did not need to take time off between undergraduate and law school in order to earn money for law school expenditures, but this should also have prevented white students, who were more likely to have professional parents, from doing so. what we see instead is that roughly 66 percent of the white students from this sample did not transition immediately to law school. but, the opposite appears to be true for asian american and latino law students, which could signal a social capital effect. the legal and professional role models in middle-class students’ lives may be the source of information about the benefits of taking time off before starting law school. if that were the case, we would see a greater proportion of students from higher socioeconomic backgrounds, without regard to race or ethnicity, garnering work experience before law school. but, this was not apparent from this sample of asian american and latino law students. the findings appear to support an immigrant effect (deficient capital) among the asian american and latino law students from higher socioeconomic backgrounds; over 80 percent of the asian american and latino law students from this study are second-generation immigrants, meaning their parents immigrated to the united states. even the highly educated immigrant parents do not have the cultural capital to advise their children to take on meaningful work before enrolling in law school. conceputalized by pierre bourdieu, cultural capital describes the attitudes and knowledge parents transmit to their children for educational success. sociologist annette lareau further applied cultural capital to the understanding of educational stratification, taking into consideration class, race, and family factors. she characterises middle class families as using “concerted cultivation” to nurture their children’s ability to perform in school through ideas about education, and involvement in extracurricular activities. working class and poor parents do not have access to organized activities, and were more focused on letting their children experience “natural growth,” not least because of the effort involved in providing basic support. lareau’s findings on the intersection of race and class suggests that the parents of white, middle-class law students encouraged them to work before law school as part of “concerted cultivation.” it may be that immigrant parents, even middle class ones, do not recognize the benefits of avoiding burnout and/or gaining industry knowledge, versus transitioning immediately to professional school. alternatively, asian american and latino law students may have transitioned immediately to law school in an effort to climb the socioeconomic ladder, or to accelerate the immigrant adaptation process. sociologists alejandro portes and rubén g. rumbaut’s comprehensive studies on immigrants and their children find that firstand second-generation immigrants strive to ascend the socioeconomic ladder to actualize the american dream. known as “immigrant optimism,” this mindset contributes to the overall successful scholastic performance of second-generation immigrants, and it may shape the conventional path of asian american and latino law students in this study.[footnoteref:32] [32: see alejandro portes and rubén g. rumbaut, immigrant america: a portrait (2006).] it could also be that the concerted cultivation upper-middle class immigrants practice with their children does not compensate for the lack of attorney family members, relatives, or friends. the american legal profession has experienced, and continues to witness, an increase in the number of asian american and latino law students and lawyers, but this phenomenon has not yet spread to local panethnic communities. perhaps, in one or two generations, a critical mass of panethnic attorneys will engage networks, supporting guidance and career advice. but, we do not see this trend yet. the fact that the few asian american and latino law students with attorney friends or siblings in the sample worked in law-related fields before enrolling in law school suggests it will be transformative. conclusion, limitations, and implications as i suggest in this paper, both the returnee and the conventional paths have benefits and drawbacks. returnees overall convey more ease in navigating law school, but are also cynical toward the pedagogy, and see law school as nothing more than a vehicle to a career. conventionals experience status anxiety, yet report optimism about their legal training and impending career; they enjoy learning to think like a lawyer more than returnees. students from lower ranked mt4 are typically returnees while wt1 has a greater proportion of conventionals. panethnicity and immigrant background further complicate this picture. a majority of asian american and latino law students are conventionals, and their ethnic identities compound the anxiety of conventionals generally with additional dimensions of imposter syndrome. asian american and latino law students in this study suspect that their white peers have attorney networks to turn toward when needed, whereas they do not have that available resource. the divergence among students is both real and imagined. asian american and latino law students imagine their white peers receiving more guidance on surviving law school and becoming an attorney, and the data reveal that white respondents have the opportunity to seek such guidance from friends and family. peer socioeconomic background thus further exacerbates the imposter syndrome among asian american and latino law students. these nuanced findings challenge our current understandings of stereotype threat, social capital, and the modal law student. first, as demonstrated in this paper, a conventional is not necessarily the “modal” law student, or the most confident. tellingly, returnees actually appear to be more confident. although returnees take a more blasé attitude to law school, they espouse more confidence than their conventional counterparts. they do not fear divergence from their younger peers, but rather boast of their real world expertise (social capital). conversely, conventionals felt the least prepared for law school, and feared competition with other high achievers. what we see is that nonwhite law students appear to be mostly conventionals who transition immediately to law school, which challenges timothy clydesdales’ description of “modal” law students. in some respects, conventional students embody the racial and socioeconomic disadvantages experienced by andrew francis and iain mcdonald’s part-time students. conventionals intimate more anxiety about law school, and are disproportionally nonwhite, second-generation immigrants. this study reveals that white law students appear to possess a hidden capital in that so many are returnees. theoretical implications notwithstanding, these findings also suggest practical steps to mitigate anxiety among students who transition immediately to law school, especially for nonwhite law students. for one, american law schools may consider placing added value on practical work experience. lawrence foster notes that the current teachings of american law schools focus too much on the theoretical components of law at the expense of practice application. foster argues that the merits of clinics are that “law students represent real clients in real cases, under the close supervision of faculty.”[footnoteref:33] in this way, students are not only more confident in their abilities to work with clients, but they also garner “real world” experience. [33: lawrence foster, ‘the impact of the close relationship between american law schools and the practicing bar’, 51 the journal of legal education, 346-349 (2001).] some law professors support this endeavor. eric j. gouvin argues that clinics are crucial for the successful understanding and practice of business law as most clinics use a “law firm” model where professors take on the role of partners, while students are the associates.[footnoteref:34] gouvin impresses, “business clinics may help students better appreciate the challenges of business lawyering, which they sometimes misunderstand as merely a form of practice. by putting students in the middle of real transactions, they gain a deeper understanding of the subtleties of making a transaction come together.”[footnoteref:35] similarly, amy l. ziegler argues that clinics are instrumental for students interested in public interest work by enhancing their problem-solving skills on actual cases for which they are held accountable.[footnoteref:36] [34: eric j. gouvin, ‘learning business law by doing it: real transactions in law school clinics’, 14 business law today, 52-55.] [35: gouvin, 55, 2004.] [36: amy l. ziegler, ‘a law school clinic and the bar: promoting development’, 2 aba journal of affordable housing and community development law, 16-17 (1993).] these studies on clinics underscore the importance of work experience. because clinics are expensive to administer, and most law schools in the united states do not appear to house many of them, it is thus important for law schools to consider other ways to nurture student confidence (and competence).[footnoteref:37] perhaps then, american law schools may consider the role of work experience as a part of applications. admitting mostly returnees could mean increasing the cynicism of the student body. but, the students would also direct their attention to learning the law and appreciating the applicability of their pre-law school work experience with a better eye toward their career trajectories. this model may mitigate some angst among non-modal law students more generally – in this case, asian americans and latinos – who currently do not have widespread professional guidance, and who transition immediately from college in large numbers. a shift to prioritizing pre-law school experience could benefit all students, and the profession. rather than being deficient in this hidden social capital, all students are aware of expectations for real world work prior to applying. [37: see elliot s. milstein, ‘clinical legal education in the united states: in-house externships and simulations’, 51 j. of legal education, 375 (2001) for discussion of the dearth of clinics in american law schools.] affirmatively accepting law students based on a holistic evaluation of applications suggests commitment to a diverse student body. admitting former paralegals, doctors, engineers, teachers, and others would no doubt enrich classroom discussions, and inject a “real world” element to the enterprise of legal education. in the midst of debates surrounding affirmative action, law school diversity, bar passage rates, and post-law school careers, giving returnees preference in admission (and publicizing this on law school admissions sources) could serve as a step in the right direction.[footnoteref:38] while the long-term effects of such admissions policies are outside the scope of this paper, the findings presented here serve as a starting point for future research to interrogate the significance of work experience before enrolling in law school, as well as graduate programs, writ large. [38: see richard h. sander, ‘a systemic analysis of affirmative action in american law schools’, 57 stanford law review, 367-483 (2004); richard h. sander and kate l. antonovics, ‘affirmative action bans and the “chilling effect”’, 15 american law and economics review, 252, (2013).] references anthony g. amsterdam, ‘clinical legal education – a 21st century perspective’, 34 journal of legal education, 612-618 (1984). howard s. becker, blanche geer, everett c. hughes and anselm l. strauss, boys in white: student culture in medical school, university of chicago press, 1961. charles l. bosk, forgive and remember: managing medical failure, university of chicago press, 1979. pierre bourdieu, distinction: a social critique of the judgement of taste, university of harvard press, 1984. christine brems, michael r. baldwin, lisa davis, and lorraine namyniuk, ‘the imposter syndrome as related to teaching evaluations and advising relationships of university faculty members’, 65 j. of higher education, 183-193 (1994). spencer e. cahill, ‘emotional capital and professional socialization: the case of mortuary science students (and me)’, 62 social psychology quarterly, 101-116 (1999). pauline rose clance and suzanne innes, ‘the imposter phenomenon in high achieving women: dynamics and therapeutic intervention’, 15 psychotherapy theory and practice, 1-8 (1978). timothy t. clydesdale, ‘a forked river runs through law school: toward understanding race, gender, age and related gaps in law school performance and bar passage’, 29 law and social inquiry, 711-769 (2004). carrie yang costello, professional identity crisis: race, class, gender, and success at professional schools, vanderbilt university press, 2005. pamela e. davis-kean, ‘the influence of parent education and family income on child achievement: the indirect role of parental expectations and the home environment’, 19 journal of family psychology, 294-304 (2005). jacquelynne s. eccles and pamela e. davis-kean, ‘influence of parents’ education on their children’s educational attainments: the role of parent and child perceptions’, 3 london review of education, 191-204 (2005). howard erlanger, charles r. epp, mia cahill, and kathleen m. haines, ‘law student idealism and job choice: some new data on an old question’, 30 law and society review 851-864 (1996). lawrence foster, ‘the impact of close relationship between american law schools and the practicing bar’, 51 the journal of legal education 346-349 (2001). andrew w. francis and iain w. mcdonald, ‘preferential treatment, social justice, and the part-time law student: the case for the added part-time degree’, 33 journal of law and society 92-108 (2006). andrew francis and iain mcdonald, ‘after dark and out in the cold: part-time law students and the myth of “equivalency”’, 36 journal of law and society 220-247 (2009). eric j. gouvin, ‘learning business law by doing it: real transactions in law school clinics’,14 business law today 52-55 (2004). robert granfield, making elite lawyers: visions of law at harvard and beyond, routledge, 1992. bethany rubin henderson, ‘what is the purpose of law school?’, 53 j. of legal education, 48-79 (2003). wayne s. hyatt, ‘a lawyer’s lament: law schools and the profession of law’, 50 vanderbilt law rev., 385 (2007). fiona m. kay and jean e. wallace, ‘mentors as social capital: gender, mentors, and career rewards in law practice’, 79 sociological inquiry, 418-452 (2009). elizabeth mertz, the language of law school: learning to “think like a lawyer”, oxford university press, 2007. elliot s. milstein, ‘clinical legal education in the united states: in-house externships and simulations’, 51 j. of legal education, 375 (2001). alejandro portes and rubén g. rumbaut, immigrant america: a portrait, university of california press, 2006. robert ream, ‘toward understanding how social capital mediates the impact of mobility on mexican american achievement’, 84 social forces, 201-224 (2005). richard h. sander, ‘a systemic analysis of affirmative action in american law schools’, 57 stanford law rev., 367-483 (2004). richard h. sander and kate l. antonovics, ‘affirmative action bans and the ‘chilling effect,’’ 15 american law & economics rev., 252 (2013). debra j. schleef, managing elites: professional socialization in law and business schools, rowman & littlefield, 2006. hilary sommerlad and peter sanderson, gender, choice and commitment: women solicitors in england and wales and the struggle for equal status, ashgate, 1998. hilary sommerlad, lisa webley, liz duff, daniel muzio, and jennifer tomlinson, diversity in the legal profession in england and wales: a qualitative study of barriers and individual choices, legal services board, university of westminster, 2010. claude m. steele, ‘a threat in the air: how stereotypes shape intellectual identity and performance’, 52 american psychologist, 613-629 (1997). robert v. stover, making it and breaking it: the fate of public interest commitment during law school, university of illinois press, 1989. kelly terry, ‘externships: a signature pedagogy for the apprenticeship of professional identity and purpose’, 59 j. of legal education, 240-268 (2009). amy l. ziegler, ‘a law school clinic and the bar: promoting development’, 2 aba journal of affordable housing and community development law 16-17 (1993). latino latino > hs hs grad college grad grad/professional 0.21 0.27 0.18 0.34 white sales < hs hs grad college grad grad/professional 0 0.09 0.38 0.53 asian american career/professional grad school temporary jobs/immediate transition 0.39 0.05 0.56000000000000005 latino career/professional grad school temporary jobs/immediate transition 0.41 0.06 0.53 white career/professional grad school temporary jobs/immediate transition 0.66 0.09 0.24 asian american asian american < hs hs grad college grad grad/professional 0.04 0.21 0.33 0.42 5 from the field 244 building a policy clinic network – cleo workshop 13th may 2021 rachel dunn, lyndsey bengtsson and siobhan mcconnell, northumbria university, uk* defining policy clinics policy clinics/work are not a new concept and there have been many other legal educators who have established this kind of work.1 there is no set definition of policy clinics, nor a prescription of what they should and shouldn’t, or can and cannot, do. it may be that you are already doing this kind of work at your institution without realising it. we take a very liberal stance with policy and law reform education, taking it to mean any pedagogic methods which incorporate or fully embrace the contribution to policy and/or law reform as an end result. this can be through a full credited module, policy work incorporated into an already established module, or extra-curricular activities, such as responding to consultation papers. some modules may incorporate elements of it, for example, by assessing students on a report outlining an area of law which should be reformed and sending it to a relevant *rachel dunn, lyndsey bengtsson and siobhan mcconnell are senior lecturers in the law school, northumbria university. 1 for example, please see william wesley patton 'getting back to the sandbox: designing a legal policy clinic' (2011) 16 international journal of clinical legal education 96; michael coper, 'law reform and legal education: uniting separate worlds' (2007-2008) 39 university of toledo law review 233; liz curran, ‘innovations in an australian clinical legal education program: students making a difference in generating positive change’ (2004) 6 international journal of clinical legal education 162 from the field 245 stakeholder, e.g. local mp.2 some supervisors and students in live client clinics will experience an area of law or policy which is not working well in practice, and do further law reform work to try and change it.3 others will do smaller projects, such as client newsletters to external organisations. at northumbria law school, and other institutions such as the open university, we have a full policy clinic, whereby students undertake empirical and desk-based research for non-governmental organisations (ngos) and researchers. ultimately, no work big or small aiming at influencing policy and law reform, which engages students in the process, should go unnoticed or undervalued. why do policy clinic? we have written elsewhere about why law teachers should consider policy clinics/work and the benefits this brings to students.4 policy clinics/work allows students to engage with the kind of research they may not have the opportunity to elsewhere on their programme, for example empirical work or large-scale projects for external clients. through this, they develop a range of skills, such as project 2 rachel dunn and richard glancey, ‘using legal policy and law reform as assessment.’139-163. found in bone, a. and maharg. p. (eds) critical perspectives on the scholarship of assessment and learning in law. (2019 anu press) 3 liz curran, ‘university law clinics and their value in undertaking client-centred law reform to provide a voice for clients’ experiences’ (2007) 12 international journal of clinical legal education volume 105; jeff carolin, ‘when law reform is not enough: a case study on social change and the role that lawyers and legal clinics ought to play’ (2014) 23 journal of law and social policy 107 4 rachel dunn, lyndsey bengtsson and siobhan mcconnell, ‘the policy clinic at northumbria university: influencing policy/law reform as an effective educational tool for students’ (2020) 27(2) international journal of clinical legal education 68 from the field 246 management, oral and written skills, teamwork and data management.5 further to the skills gained and developed through policy clinics/work, students are also given the opportunity to make their voices heard and contribute to how the law can be, not just how it is already. students can see how their work ‘may have a positive impact in generating change’6 and thus develop a social justice ethos. through this social justice ethos, they can realise how they can be drivers of change, both during their education and later in their careers. as maccrimmon and santow highlight 'while it is crucial for students to learn how to identify and apply legal rules, this should not be the sum total of their skills set.'7 thus, policy clinics/work can be a vehicle for opening conversations with students as to how the law should be and actively work together to influence it. further to the student benefits, it also creates opportunities for universities to engage with ngos, build research and policy networks and be at the forefront of influential research. an added bonus for universities is that anyone who can research can teach or supervise policy clinics/work, as there is no need for practising certificates or specific qualifications. this opens up clinical activity to those it may have been previously closed to and brings together academic and clinical staff where there may 5 ibid. 6 liz curran, ‘university law clinics and their value in undertaking client-centred law reform to provide a voice for clients’ experiences’ (2007) 12 international journal of clinical legal education volume 105 7 les mccrimmon and edward santow, ‘justice education, law reform and the clinical method’ 211224. found in frank s. bloch, the global clinical movement: educating lawyers for social justice, (2010 oxford university press) from the field 247 have previously been tensions.8 policy clinics can be integrated into already established live client clinics and policy work can be integrated into any already established modules or extra-curricular activities. policy clinic network during a connecting legal education session with rachel dunn (northumbria university) and liz hardie (open university), there was a lot of interest in policy clinics and how to establish one.9 it was decided that a loose network would be created for academics to come together, from all disciplines. the aim of the network is to share best practices and experiences from policy work, help academics to engage with this kind of teaching, and discuss ways in which the network can go forward. there will be a teams site academics can join, which will feature research and documents relating to policy clinics/work, which can be used to establish or extend the work at interested institutions. it will also be a place where academics can talk, meet and share ideas. an ultimate aim of the network is to have policy clinics and students work together to create national and international research. 8 for example, frank bloch, ‘the case for clinical scholarship’ (2004) 4 international journal of clinical legal education 7; paul mckeown and rachel dunn, ‘the european network of clinical legal education: the spring workshop’ (2015) 22(3) international journal of clinical legal education 312 9 for more information, please see the alt blog post: http://lawteacher.ac.uk/connecting-legaleducation/connecting-legal-education-being-the-change/ http://lawteacher.ac.uk/connecting-legal-education/connecting-legal-education-being-the-change/ http://lawteacher.ac.uk/connecting-legal-education/connecting-legal-education-being-the-change/ from the field 248 clinical legal education organisation (cleo) workshop on 13th may, cleo are hosting a free 1 hour zoom workshop on policy clinics/work and we would love to see as many academics there as possible. the aim of the session is to bring together likeminded academics who are, or want to, create impactful work through their teaching and engage with this kind education. the session will start with a short presentation from siobhan mcconnell, lyndsey bengtsson and rachel dunn on what policy clinic and law reform work is, highlighting the work done at northumbria university. attendees will then be put into break out groups to discuss the work they do at their institutions or are planning to do. we will come together at the end to share ideas for the network and future policy clinic/work ideas. attendees are encouraged to share their contact details, to be added to the teams site and set up an informal cleo mailing list. for more details on the cleo workshop and to register, please visit: https://www.cleo-uk.org/events/ https://www.cleo-uk.org/events/ 227 reflections upon transitions: an essay on learning how to teach after practicing law c. benjie louis* abstract every academic year, new law school faculty enter legal academia� many of these new teachers are practitioners with varying levels of legal practice experience� while the transition from practice to teaching is particular to each person, for clinical professors there are some specific challenges that transform our professional identity� clinical professors wear many hats: teacher, lawyer, mentor, and scholar� navigating those many hats and adjusting to various goals of teaching emerging attorneys is only a couple of challenges� other challenges include changing the focus of our professional identity from career-centered, in its many facets, to student centered� a core component of clinical legal education is the reflective process� a reflective lawyer is one who thoughtfully digests information and thinks about how an experience affects his or her professional growth� a reflective teacher does the same� this article shares some of my reflections on becoming a clinician and what i learned through experiences about becoming a more effective teacher� in part i, i reflect on my role as a supervisor of emergent attorneys and a goal facilitator for these same students who are exploring their educational and professional development� part ii includes lessons unique, i believe, to a clinician of color� finally, part iii concludes with reflections on five core tools i have used that helped me in my transition; these tools, i believe, could be useful to new clinicians, especially those that have been practicing for a long time before teaching� * c� benjie louis, assistant clinical professor of law, albany law school� i would like to thank my colleague, prof� melissa breger, and my research assistant, kyle meredith, for their invaluable support and assistance in the creation of this essay� copyright © 2012 c� benjie louis, esq� all rights reserved� 228 international journal of clinical legal education issue 18 reflections upon transitions: an essay on learning how to teach after practicing law “the only person who is educated is the one who has learned how to learn and change�” carl rogers introduction four and a half years ago, i began teaching at albany law school (albany law) after more than a decade of practicing law as a public interest attorney� most of my time at albany law has been spent teaching a clinical course; i spent one year teaching non-clinical courses� i did not know a great deal about the mechanics of teaching at the graduate level before i started, but i just knew i was extremely excited about the opportunity� having supervised summer law interns, i was confident that my transition would be seamless� while some aspects of teaching came naturally to me, others did not; moments, particularly during my first semester at albany law, created opportunities for personal growth� a core component of clinical legal education is the reflective process�1 a reflective lawyer is one who absorbs information and thinks about how an experience affects his or her professional growth� a reflective teacher does the same� this article shares some of my reflections on becoming a clinician after many years away from academic life and includes challenges that are universal to teachers� my preparation for teaching my first semester at albany law was brief and i, like all new teachers, learned a great deal on the job during that first semester� there is wonderful scholarship that introduces new clinicians to the historical context of clinical legal education and to the hallmarks of clinical pedagogy, such as case rounds, client-centered representation, and the stages of supervision2; this article focuses on the essential ingredient that makes teaching so fascinating and challenging: the students� i ascertained that my professional persona, which was principally selfcentered and client-centered, had to modify to being student-centered� my interactions with students, especially during the first semester of teaching, give a snapshot of the typical challenges of a new clinician� i had to adjust my desire to control cases3 and, thus, figure out what my role as a supervisor entailed�4 appreciating the nuances of fostering student autonomy was another important matter to be learned� in addition, my role as a clinician of color impacted my experience as well� in part i, i reflect on my role as a supervisor of emergent attorneys and a goal facilitator for these same students who are cultivating their educational and professional development� part ii includes lessons unique, i believe, to a clinician of color� finally, in part iii, i conclude with reflections on 1 william p� quigley, introduction to clinical teaching for the new clinical law professor: a view from the first floor, 28 akron l� rev� 463, 481-82 (1995)� 2 see generally justine a� dunlap & peter a� joy, reflection-in-action: designing new clinical teacher training by using lessons learned from new clinicians, 11 clinical l� rev� 49 (2004); william p� quigley, introduction to clinical teaching for the new clinical law professor: a view from the first floor, 28 akron l� rev� 463 (1995)� 3 dunlap & joy, supra note 2, at 67� 4 david f� chavkin, am i my client’s lawyer?: role definition and the clinical supervisor, 51 smu l� rev� 1507 (1998)� reflections upon transitions: an essay on learning how to teach after practicing law 229 five core tools i have used that helped me in my transition ( and which i still use); tools that could assist new clinicians, especially those that have been in practice for many years prior to teaching� part i a. reflection on the beginning in january 2007, i took a sabbatical from my job as a housing attorney in a legal services office in order to teach a clinical course at albany law called “introduction to litigation”; the subject matter of the course was unemployment insurance benefits� albany law is a private, independent law school in new york’s capital�5 i had been a legal services attorney for many years before i started to teach and my entry coincided with the genesis of major changes to legal education where criticisms on the delivery of legal education were taking root from different factions�6 i was far removed from my own law school experience and my familiarity with law students prior to teaching was limited to interaction with summer interns� i remembered participating in a clinic in law school but i could no longer fully appreciate what it was like to be a student� what was foremost in my mind during those couple of weeks in early january were two things: what would the students be like and what will i say during the first class? so what is my most striking memory of my first class? a story that i have told to almost every subsequent clinic class since i started teaching (7 classes altogether) is when i asked a returning student to share thoughts on the student experience of the litigation clinic from the previous fall semester� she stated that “all of the clients lied”� there was laughter in the room and, after i took my jaw off the floor, the wheels spinning in my head were calculating how long it would take me to pack my bags and return to my old job� i asked her what she meant and she elaborated that when talking to her fellow student interns about their experience at administrative hearings, the testimony of the clients differed when they were under oath during those hearings from the stories they told the student interns� i was so taken aback that i really did not know how to respond and i mumbled something about not all clients lie� after class, i wondered about their cynicism at such an embryonic stage of their professional development� my experience with clients was so different� sure, some do lie, but the amount of facts and information culled from a client and understanding those facts and what facts really changed could be a complex process at times; consistency in stories is critical to a client’s credibility� at that moment i figured out that the initial impact of a live client experience had the power to shape the students’ view of the attorney/client relationship in a negative way� i wondered how many students had experience in law firms and how many had conversations with practicing attorneys about fact gathering that occurs during the attorney/client relationship� later that week, the student told me that she felt bad about her statement, but i appreciated her honesty� honesty is important, especially in the clinical setting where there is so much close 5 about albany law school, http://www�albanylaw�edu/sub�php?navigation_id=1 (last visited aug� 4, 2011)� 6 see generally jill schachner chanen, re-engineering the j.d.: schools across the country are teaching less about the law and more about lawyering, 93 a�b�a� j� 42 (july 2007); roy stuckey et al�, best practices for legal education: a vision and a road map (clinical legal education association 2007); william m� sullivan, anne colby, judith welch wegner, lloyd bond & lee s� shulman, educating lawyers: preparation for the profession of law (jossey-bass 2007)� 230 international journal of clinical legal education issue 18 interaction between students and teachers� her statement in class taught me a few lessons� one, my mindset that first semester was that, as a teacher, i needed to have an answer or sage comment for everything said in class� room for the unpredictable was not something that i thought about in the beginning� having practiced and gained some expertise and confidence in my ability to practice, i was in a place in my professional life where there was little variability� so, very soon into my legal teaching career, i was snapped out of that complacency� two, the live client experiences, and unpleasant ones at that, would exist and i needed to think about different scenarios that can shape the student experience in a potent way� third, if you plan to call on a student about sharing a specific topic for a specific purpose, it is sometimes beneficial to find out what the student is going to say ahead of time� this last lesson is not to suggest that you script your class; on the contrary, some topics, like client credibility, are ripe for exploration and discussion� but treading carefully with the unpredictable is an important part of the transition� on a more pedantic note, after the class, someone asked me a practical question that did not occur to me as i was preparing for my first class: where did the money to pay for unemployment benefits come from? i answered the question, but started second-guessing myself about the amount of material i covered� how much to cover in one class (or one semester) and in what amount of detail is a universal struggle for any teacher� asking yourself what the students should absolutely know by the time they leave your class that day is a way to overcome this issue; this was a question i would ask myself when i would prepare for court appearances� the idea behind this method is akin to one of the components of backward design where designing with clarity about what you want the student to learn before teaching it is critical�7 i did not know the theory of backward design when i started teaching; however, i, and many professors, employ it without necessarily knowing its details� another memory of that class is that i talked a lot� the socratic method8 is the predominant model in law school, depending on class size�9 however, creating a classroom where there is active student engagement is the aspirational clinic seminar model�10 i was unaware of this when i started because i was focused so much on what i needed to tell the students that i had very little time to absorb andragological methodology prior to commencement of the first semester� having taught now for four and a half years, and having read about active learning and student engagement, scaling back on lectures has been a conscious goal� i think it would be wise to cutback even more 7 “one starts with the end-the desired results (goals or standards)-and then derives the curriculum from the evidence of learning (performances) called for by the standard and the teaching needed to equip students to perform�” grant wiggins & jay mctighe, understanding by design 8 (assoc� for supervision and curriculum development 1998)� 8 “socratic method� a technique of philosophical discussion – and of law-school instruction – by which the questioner (a law professor) questions one or more followers (the law students), building on each answer with another question, esp� an analogy incorporating the answer… most law professors who employ this method call on students randomly, an approach designed to teach students to think quickly, without stage fright�” black’s law dictionary 662 (3d pocket ed� 2006)� 9 william m� sullivan, anne colby, judith welch wegner, lloyd bond & lee s� shulman, educating lawyers: preparation for the profession of law 48-50 (jossey-bass 2007)� 10 stuckey et al�, supra note 6, at 196-97 (where the authors list the variety of activities that a clinical seminar can undertake, most of which, like “group case planning exercises” or simulations, require active student engagement to succeed)� 231 and use a more problem-solving approach�11 a clinical seminar is a great place to have students talking in a meaningful way� so how do you seek to engage students during the classroom component of a clinic? what i have done is incorporate questions into my teaching outline, ask students during class if they agree or disagree with a statement that has been made, and i try not to interrupt a dialogue between me and a student or two students until an objective is reached� also, do not be afraid of the awkward silence,12 what i like to call the crickets singing in the night, in a classroom� there is a level of comfort that a student must feel in speaking up in class and eventually either someone will say something, or you can use a follow-up question to stir discussion� anticipate misunderstandings13 and questions that your material does not cover� this is easier said than done in some instances because some of the most interesting issues arise organically� b. reflection on supervision frequent supervisory meetings with students are a part of the clinical teaching experience�14 prior to the first official supervisory meeting, at the beginning of the semester at albany law, students fill out an educational planning form which asks a series of questions about, among other things, the student’s most enjoyable law school class, reasons for enrolling in the clinic, and what special skills the individual brings to the clinical experience� the next step is to meet with the student to discuss the content of the form� so, the form gives the student an opportunity to think about goals and gives the teacher insight into student goals and expectations for the semester� in my transition during the first semester, having the educational planning form proved to be a great launching pad into forming supervisory objectives and progressively developing my relationship with the students� the questions not only allowed me to start a conversation but also crystallized key targets of each student’s expectations and the form is student-centered� a valuable insight that i got from a colleague prior to starting to work was about the different prototypes of students that he had encountered during his years of teaching� i have named these prototypes as the following: the overconfident, the under confident, the workaholic, the adequate, the well rounded, and the unmotivated student�15 i could not discern upon the first meeting which prototype a student conformed to, but i kept it in mind as i talked to each of them� which category a student falls into takes me, at most, until mid-semester to decipher� their characteristics are as follows: the over-confident student believes, without a strong frame of reference, that (s) he knows the answers right away� the under confident student is one who is unsure about his or her decision-making and is constantly looking for answers from the teacher� the workaholic 11 the carnegie foundation’s report on educating lawyers provides parallels of the problem-based method utilized with success in business and medical schools, saying that the technique, “in its wanderings… has enriched many other forms of professional preparation� welcoming it back with its various enhancements would be to reclaim a legacy while acquiring new resources for legal education’s own renewal�” sullivan et al�, supra note 9, at 199-200� 12 laurie shanks, whose story is it anyway? – guiding students to client-centered interviewing through storytelling, 14 clinical l� rev� 509, 522-23 (2008) (highlighting the “beachballing” technique, where the role of a professor’s questioning is to “[lob] a beach ball into a group,” placing the onus on the students to “keep the ball in the air�”)� 13 wiggins & mctighe, supra note 7� 14 dunlap & joy, supra note 2, at 67, 90-91; william p� quigley, introduction to clinical teaching for the new clinical law professor: a view from the first floor, 28 akron l� rev� 463, 478-481 (1995)� 15 dunlap & joy, supra note 2, at 90-93� reflections upon transitions: an essay on learning how to teach after practicing law 232 international journal of clinical legal education issue 18 is the type of student that does clinic work to the detriment of other studies, thereby exposing a lack of work-life balance, another clinical teaching hallmark�16 the “adequate” student does the necessary work, but just scratches the surface on the intricacies of practice and is not particularly reflective� the well-rounded student is one who considers all components of the clinical learning experience� the unmotivated student is one that needs continual prompting in completing tasks and being reflective�17 these descriptions are not meant to be pejorative since; in fact, a good clinical experience meets these students where they are and facilitates their journey, hopefully, into a self-aware, reflective, and ethical practitioner�18 i give these descriptions to help the new teacher attune to the different personality types� as practicing law is a social profession, teaching law is a social profession multiplied tenfold� my expectation in supervisory meetings is that the student is prepared to convey fact developments in a case or their research and those they have thought of, or struggled with, next steps in their preparation� i found that asking the student many questions and then having the student wrap up our conversation with a conclusion is sometimes helpful� it is an extension of the common clinical pedagogical technique of asking “what do you think�”19 for example “what is your legal authority for making this argument or reaching that conclusion?” “what is your frame of reference for that comment?” “what would you do if this happened to you? the more questions asked, the less likely my own viewpoint intrudes into their process of coming to a conclusion� c. reflection on fostering student autonomy i was away at my first clinical conference, in new orleans, louisiana� the conference took place right after the last week of albany law school’s spring semester� there were a few cases that were still pending at the end of the semester and one of the cases involved a client, i will call him john doe, who was waiting for a hearing date� the student on the case stated that he wanted to continue representing the client even after the semester ended, something he was not obligated to do as per albany law clinic policy, so i allowed him to continue working on the file� while in new orleans, i checked my e-mail periodically� one day, the student handling mr� doe’s case sent me an email documenting how he was having a hard time with his client� doe had not been returning calls thereby hindering the student’s preparation of the case� in the email, the student told me that he reached the conclusion that the lack of communication with this client was such that he felt we should withdraw from representing him� my reaction was swift and decisive� the case was still in its preliminary stages so my immediate reaction was “no” and that is what i replied to the student� my decision was neither deliberative nor reflective; i just decided to handle this as i would have in practice which was to basically give the client “another chance” to get in touch with me� rather than engage in a dialogue with the student, albeit via e-mail, to explore whether the student’s recommendation was an action that was warranted, i substituted my judgment for that of the student� i did not consider his own deliberation or reflection until i had a face-to-face meeting with him when i returned from the 16 id. at 92 � 17 id� at 90-93� 18 quigley, supra note 1, at 489� 19 quigley supra note 1, at 482-83� 233 conference� i realized, in hindsight, that by this juncture in the semester, the student had worked in the clinic for four months, had developed a good understanding of unemployment law, had the capacity to exercise judgment on the struggles on communication within this attorney/client relationship and was really in the best position to make a recommendation of withdrawal from representation� the decision-making process is part of being a lawyer and my quick, substituted judgment did not allow the student the opportunity to experience this essential part of lawyering� what i learned from this experience is the foremost issue, in my opinion, that must be grappled with for a new clinical law teacher – when and how to let go of control over a case�20 this decision encompasses two clinical theories: directive versus non-directive,21 as well as the role of a supervisor in client decision-making�22 this is a recurring issue that is written about extensively and discussed at clinical conferences� i overheard a colleague say once that in teaching a clinic the “clients” were our students and the students had clients� this was a hard lesson to learn early on in my transition because i thought of myself as a lawyer first and, at that point, i could not wrap my mind on the idea that i was a “professor”� the struggle between being directive and non-directive varies per student�23 in this anecdote, the student had represented two other individuals and he had a good grasp of unemployment insurance law� yet, i was eager to seize control of doe’s case without much thought because i was quick to assume, without reflection, that the student was not making a good choice and i, with experience under my belt, could “fix” the client with a reality check� it turned out that the student’s judgment of mr� doe was accurate and i ended up having the same communication problems with mr� doe once i officially took over the case when the student started a summer job� so the lesson that i learned here was that the key to giving up control of a case was in reserving judgment on a decision until i let a student present a recommendation, and then probe the steps by which the student reached a conclusion� probing such steps could take one supervisory meeting, or it could take multiple meetings� a student’s decision could be simple or complex� asking the question “why did you reach that conclusion” is only the first step� but, autonomy and exercising professional judgment are aspects of professional development that are essential to any lawyer’s progress� the opportunity to do that as a law student should be cultivated by a teacher� so, the nuances of fostering student autonomy include giving the student the time and space to reach a conclusion, asking the student his or her decision-making process, and respecting a student’s thoughtful determination� the example i just gave involved a very serious decision� also important, but more mundane, is decision-making on what could be perceived as minor, administrative tasks� i assigned a case to a student that was transferred from one semester to another� the client had been retained and during the course of a month, he was hard to reach via telephone� the client had been waiting for 20 dunlap & joy, supra note 2, at 64� 21 “non-directive supervision may be viewed as the manifestation of the socratic method within clinical teaching� the questions that the teacher asks the student – guiding the student to explore issues, angles, facts, and theories the student may have left unconsidered and untested – is the measure of directiveness� on the more directive end of the scale, the teacher asks fewer questions and gives more instructions� at the opposite end, the teacher gives virtually no instruction but rather asks the students questions such as “what do you think?” dunlap & joy, supra note 2, at 84� 22 see generally david f� chavkin, am i my client’s lawyer?: role definition and the clinical supervisor, 51 smu l� rev� 1507 (1998)� 23 dunlap & joy, supra note 2, at 85� reflections upon transitions: an essay on learning how to teach after practicing law 234 international journal of clinical legal education issue 18 an administrative hearing so the new student was understandably anxious to speak to him� i advised the student that we should send a letter to the client advising him that his case would be closed if he did not contact us� a few days later, the client called during a time outside of the assigned student’s clinic hours� i spoke to him and he asked me to not close his case and also advised me that he received a hearing notice� the hearing was scheduled within two business days of our conversation, so i told him i would speak to the student about reopening his case and requesting an adjournment� when i saw the student again, we discussed the situation and whether to continue representation; i had decided that we would but wanted a dialogue with the student about the impact of the lack of communication� i directed him to send a letter to the hearing office, via fax and regular mail, requesting an adjournment� after approving the letter, the student was left to follow up with getting it in the mail and faxing it� the next day, which happened to be a friday, the student did not have office hours, so i checked the client file� the hearing was on monday, so i wanted to call the client to confirm the fax had been sent� i saw the letter i had approved, but no fax transmittal sheet� i checked the copy machine area, but no transmittal sheet was there either� i asked the paralegal for my clinic to confirm with the hearing office that the fax had been received (it was)� when i saw the student the following monday, i asked about the whereabouts of the transmittal sheet� he said that in his haste, he stuffed the transmittal in his knapsack and left the clinic� nothing adverse happened to the client’s case, but that missing piece of paper caused me momentary panic� i talked to the student about how documentation is so important, especially in litigation, and it would have taken a minute to put the sheet in its proper place� this incident highlighted for me that in addition to the clinic offering an environment where theory and practice are bridged; it also offers an example of working in a law office� autonomy does not only include the ability to make decisions on a client’s case; it includes the ability to function in a professional setting� there have been calls to make students more “practice ready” by the time they graduate from law school�24 what does practice ready mean? i posit that it not only includes the ability to see a case or a client holistically, but it also includes the ability to function within an office with its myriad responsibilities� following the administrative tasks can be bothersome and cumbersome� filling out time records, making multiple photocopies of documents, and properly picking up a call that is on hold are a few examples of tasks that lawyers must do, especially if administrative support is scarce� i remember the tedium of proofreading my letters and making copies of pleadings� taking care of these unexciting tasks can lead to awareness of the more serious things such as, re-reading an ethical rule on confidentiality or remembering to call a client back at a precise time when the client is available� by reinforcing the fact that clinical work, even the uninteresting, mirrors real world work expectations, and having real consequences for failing to follow work rules, students can at least 24 the american bar association section of legal education and admissions to the bar’s 1992 “maccrate report” is perhaps the most notable call for increasing the practical aspects of modern legal education� legal education and professional development – an educational continuum, report of the task force on law schools and the profession: narrowing the gap, july 1992� 235 see that part of being practice ready is adhering to office rules� i learned that teachable moments are also contained in routine office procedures� by keeping expectations high of all aspects of the clinic, students get a better picture of expectations that would be made of them in the “real” world� d. reflection on being a goal facilitator teaching in the clinic is a constant source of activity� between supervising cases, preparing for seminar lectures, meetings within and outside the clinic, supporting school events, and supporting the work of the institution, finding the balance has not been easy for me, a sentiment shared by many clinicians of varying experience levels�25 however, being a clinical professor gives me the opportunity to interact with students on a cognitive and social level that is unique in the clinical environment� most law school clinics have an 8 to 1 student/teacher ratio�26 this is true of the clinics at albany law and the student clinic office hours vary from 10 to 14 hours per week�27 in addition to the seminar component of the clinical course, you can expect to spend a lot of time with your students� naturally, more personal information is being exchanged because an organic component to working in a clinic is collegiality� more than mentoring, students and clinical professors are at a level where the actual practice of law, something that the student may be doing for a life time, is dissected, probed and examined� in practice, there is always time for socializing and the line between what is appropriate socialization with students and what is not is one that you should discuss with your colleagues� because of the close nature of teacher/students in clinics, supervisory meetings and discussions on cases allow for many hours with a clinic professor�28 as students became more comfortable with me, it was not unusual for me to have conversations with them about more than their casework� some have been initiated by students, others by me� conversations about their career goals, learning styles, and reputations have been recurring topics with my students� since many clinic students are second years, the exploration of what to concentrate on and where to focus a job search are typical issues� students, understandably, are focused on finding a job as soon as they graduate, especially in this bleak job market�29 therefore, their stress level can be more intense� however, i think it is also wise to encourage students to think beyond the first job, examine their talents and be open to exploring what their law degree can be used for beside practicing law, especially with the glut of law students that are graduating compared to the number of legal jobs that are available� over the years, i have listened to the anxiety of students who wonder whether going to law school was a mistake� some of the procedures used in client interviewing and negotiations, such as identifying 25 dunlap & joy, supra note 2, at 60� 26 “the most frequent student-teacher ratio for the classroom component of in-house clinics is 8 to 1 (38�1%), followed by 4 to 1 (11�2%), 6 to 1 (9�3%), 5 to 1 (8�7%), 10 to 1 (7�9%), and 12 to 1 (5�2%), with all other reporting ratios below 4%�” center for the study of applied legal education, report on the 2007-2008 survey 15, available at http://www�csale�org/files/csale�07-08�survey�report�pdf� 27 albany law clinic and justice center registration material on file with author� 28 quigley, supra note 1, at 488� 29 william d� henderson and rachel m� zahorsky, paradigm shift, 97 a�b�a� j� 40 (july 2011), available at http:// www�abajournal�com/magazine/article/paradigm_shift/� reflections upon transitions: an essay on learning how to teach after practicing law 236 international journal of clinical legal education issue 18 goals and active listening, are useful tools in developing the teacher/student relationship�30 because of time constraints, it is not easy to take the time to listen to students about non-clinic related subject matter, but i think it is important to do so� clinical professors have access to students that carries significant capital� with the amalgam of factors that are weighing on a student’s time, taking the time to listen to the student allows for insight into the student’s professional development� my clinic has a litigation focus and i am able to decipher, at least by the end of the semester, who is good litigator material and who would struggle within that setting� i can also identify those who will work well in an office setting and those who should be a solo practitioner� having a sense at least of the solid skill set they would need and how to translate that into a successful presentation was essential� our charge includes helping students to think beyond their clinical experience, as well, to gravitate towards classes that will help them achieve their goals� i have incorporated questions about career goals in some of my supervisory meetings and i try to address it in some form during the end of semester meeting� all future litigators are advised to take negotiations and mediation� for students that are afraid of public speaking, i suggest that they take small seminars to build their confidence in talking in front of a group� i say during my first class of the semester that a semester in the clinic is a snapshot of what kind of lawyer a student will be� sometimes, however, the student doesn’t know fully what s/ he wants once the reality of practicing law sets in� it is not glamorous and it is hard work� as we encourage students to look at a client’s case holistically, we should do the same with our students� clinicians could be the first exposure to a practicing attorney that a law student has, therefore, an innate knowledge of the rigors and benefits of real life practice can only enhance a student’s comprehension� part ii. reflections on being a clinician of color i am the only clinician of color at albany law and shouldering that status has been a learning process for me, one that really started towards the end of my first semester� at that time, i was casually approached by two students of color who were not in my clinic� we spoke for a few minutes about the stresses of the end of the semester; then the conversation turned to comments about the discomfort they felt in expressing themselves in class� the conversation was in the clinic’s kitchen, a public but distant part of the clinic� i listened to them and while we were talking, someone, who happened to be white, came to the kitchen� i, and the two students, immediately stopped talking and just looked at each other� it was a familiar, and universal, halt of conversation that is had when you do not want the new person entering the room to know about the content of a conversation� i realized at that moment that i did not consider that my presence in the clinic was positive for these particular students� i do not think they could have the same conversation with a white professor and i told them to come and speak to me again� this conversation illustrates the most personal aspect of my teaching transition which is the impact that students of color have had on me� i am haitian-american and grew up most of my life in new york city� i am acutely aware of the feelings of isolation and discomfort that can be exacerbated when entering a new environment� it is the mission of law schools, including albany 30 see generally harriet n� katz, stories and students: mentoring professional development, 60 j� legal educ� 675 (2011)� 237 law, to increase and encourage diversity at their institutions�31 much has been written about the importance of having racial diversity in law schools32 as well as law school clinics�33 when i practiced law in chemung and dutchess counties in new york, there were very few lawyers of color� i have had a few memorable and disturbing interactions with clients that were directly related to my race, but for the most part, i was used to being the minority in many situations� over the years, other students of color, even those who were not in my clinic class, have talked to me about their social struggles at albany law; mainly identified as fitting into the culture of the school and the law where you do not have a lot in common with the people around you, feelings that are endemic in the academic setting for students of color�34 i have heard about feelings of exclusion and perceiving that their voice was not heard, not sought after or respected� i did not have the benefit of having someone in my family that was a lawyer, so i really did not know what to expect from law school� my experience is not unusual for people of color, especially africanamericans and latinos�35 comments that are common among minority groups; feeling uneasy around white students, a lack of outreach made by the “majority” at the school, feeling uncomfortable with verbal expression because of limited english proficiency, unfamiliarity with or indifference to the social expectations of practicing law (e�g� presence in business related social events), and feeling the burden of educating people about the complexity of the minority experience in america are recurring themes in my conversations� these types of topics are not unfamiliar to me� my experience that first semester made me aware that i should be an outlet for students of color and that race, in spite of the assertion by some that we live in a “post-racial” society,36 is still a palpable topic in the minds of some students� for a student of color who is entering a workplace or a profession with unfamiliar rules, the clinical experience affords an extra dimension when they can open up to a teacher who has faced similar struggles� for those who have limited english proficiency, navigation of the dominant language is an extra weight attached to learning social norms� my background, especially my 31 for the purposes of this article, the use of the term “diversity” will be relegated to people of color� 32 see generally kevin r� johnson, the importance of student and faculty diversity at law schools: one dean’s perspective (u�c� davis legal studies research paper series no� 242, 2011), available at http://ssrn�com/ abstract=1769285� 33 see generally jon c� dubin, faculty diversity as a clinical legal education imperative, 51 hastings l�j� 445 (2000)� 34 pamela edwards, the culture of success: improving the academic success opportunities for multicultural students in law school, 31 new eng� l� rev� 739, 757-59 (1997); paula lustbader, teach in context: responding to diverse student voices helps all students learn, 48 j� legal educ� 402, 403-04 (1998)� 35 according to the law school admission council, of all students that entered law schools in fall 2010, black/ african-american and latino/a students represented 7�2% and 6�1% of matriculants, respectively� law school admission council, matriculants by ethnicity, http://www�lsac�org/lsacresources/data/matricsby-ethnicity�asp (last visited aug� 9, 2011)� these numbers stand in stark contrast to the percentage of blacks/african-americans and latinos/as present in the general population: 12�6% and 16�3%, respectively, according to the 2010 census� u�s� census bureau american factfinder, profile of general population and housing characteristics: 2010, http://factfinder2�census�gov/faces/tableservices/jsf/pages/productview� xhtml?pid=dec_10_dp_dpdp1&prodtype=table (last visited august 8, 2011)� 36 “just as john f� kennedy was only incidentally a catholic, so is obama only incidentally a black man� it is not just that he is post-racial; so is the nation he is generationally primed to lead�” richard cohen, the election that lbj won, wash� post, november 4, 2008, available at http://www�washingtonpost�com/wp-dyn/content/ article/2008/11/03/ar2008110302609�html?hpid=opinionsbox1� reflections upon transitions: an essay on learning how to teach after practicing law 238 international journal of clinical legal education issue 18 immigrant upbringing, makes me sensitive to the concerns of students and i have come to be mindful of my availability to this population of students and providing them a safe place to express sensitive topics� i have had informal conversations with students of color in my office about practicing law in a predominantly white profession�37 giving them anecdotes of blatant and subtle racism that i have encountered with different factions of the legal world has offered them a taste of reality and validated their fears, to some extent� and, it has offered them a forum to vent their frustrations about racism’s impact on their professional development� being very specific about why i am asking a question related to race is another lesson� the teaching of cultural competence is a hallmark of clinical legal education� the teaching of cultural competence has another dimension to the conversation because of my race� how or when to offer personal anecdotes is a delicate balance, in my experience� the benefit to having faculty diversity in clinics is well documented�38 the lessons that i have learned are to make myself emotionally available to talking about race, be open to bringing up the topic of race, no matter what the color of the student, when i think the topic should be considered, and encourage students of color that the pursuit of a law degree will not only benefit them, but the legal profession as well� part iiireflection on practical aids as clinicians we spend a great deal of time tracking the progress of our students throughout the semester� we juggle assessment of their intellectual capacity, interpersonal skills, and ethical knowledge� while supervisory meetings give tangible opportunities to assess a student, i have found that other tools, such as rubrics, are very useful� the clinical community is generous about sharing information on rubrics and other assessment tools� i did not have the benefit of attending a new clinicians conference before i started teaching� my first semester teaching was jam-packed with information that required much effort to absorb in a short period of time� different people have different approaches to teaching, especially because of the nature of the subject matter of their clinic�39 having the benefit of hindsight, i can reflect on tools that really helped my transition in being less self-focused and more student-focused� in reflecting on what practical tools have helped me in doing so, i relay five the five below that were critical tools in my transition to clinical teaching� 37 among those students entering law school in fall 2010, only about 26% of those who responded were minorities� law school admission council, matriculants by ethnicity, http://www�lsac�org/lsacresources/data/matricsby-ethnicity�asp (last visited aug� 9, 2011)� in practice, the picture is even bleaker� among private law firms, only 6�16% of partners were minorities� national association for law placement, a closer look at nalp findings on women and minorities in law firms by race and ethnicity, http://www�nalp�org/jan2011wom_min (last visited aug� 9, 2011)� only 15�4% of federal judges are minorities� pat k� chew and luke t� kelley-chew, the missing minority judges, 14 j� gender race & just� 179, 179 (2010)� 38 see generally dubin, supra note 35� 39 dunlap & joy, supra note 2, at 109 (survey results from the 2003 conference participants show the variety of clinics available, from criminal defense and prosecution to elder law to immigration law)� 239 i. agendas one of the greatest challenges, and part of fostering autonomy, is to have students take ownership of their cases�40 taking ownership means investing the time, diligence, and intellectual discernment to be thoughtful about every step in a case� i remember agenda setting as an instrument that was suggested at the first new clinicians conference that i attended after my first semester teaching� in my supervisory meetings, i ask the student or student team to give me agenda items first� they do not need to give me something in writing, they just need to think about it first and then i jot down the item when they come in my office� i then add my own agenda items after theirs� giving the student the first opportunity to set the agenda is helpful, i think, to furthering ownership goals of a case� often times, especially in the beginning of the semester, a student is grappling with what the next steps are in a case� i do remember that the start of my clinical experience as a student was overwhelming� navigating what ownership means is a delicate balance for a novice because (s) he does not necessarily have the requisite experience to think two steps ahead in a case� in having an agenda and sticking to it, i find that i listen more than speak; i identify struggles more pointedly because the student can tell me what he or she is struggling with� this will allow you to use the time more efficiently and a consensus can be reached from the very beginning on what needs to be addressed before the meeting is over� such structure may not be feasible if an emergency situation comes up in a case, but agenda setting is a valuable tool� i am thankful that allowing the student to set the agenda in the first instance minimizes my desire to control the case� ii. case plans at albany law (and other clinics nationwide), several clinic professors have students use case plans for their cases: the template for the plan depends on the individual clinic director�41 when i started teaching, i used the case plan template of my predecessor and i found it to be the most useful device to track a student’s thinking and struggles, particularly in the area of legal analysis� the format is similar to an appellate brief and it can go through multiple drafts throughout the semester� i give comments on each draft, give praise for some items, and point out when an issue has not been addressed� the ability to follow the student’s progress in a way that contains the essential components of a litigated case: the facts, legal issues, opponent’s arguments, and the client’s arguments, also helps me as a supervisor identify the needs of the case in a way that is balanced� reading multiple drafts of a case plan has allowed me to give comments and suggestions in a time efficient manner and, i believe, it helps the student to see gaps in their formulation of the different aspects of building a case (factual theory, legal theory, and persuasive theory)� feedback from students about case plans has been mostly positive, including feedback that they will use them in practice� iii. going beyond “what do you think”? i have had some blank stares when i ask this question� being mindful of the inexperience of students is important� while the question is a critical tool, thinking about what comes after the answer from the student is equally useful� i think it is important to challenge students to express fully how they reach a conclusion� this means giving them space to think about a situation and 40 id. at 62� 41 the case plan that i use for my clinic appears at appendix a� reflections upon transitions: an essay on learning how to teach after practicing law 240 international journal of clinical legal education issue 18 help them along the way to reach a legal argument� it may mean that you give the student a few hours or a few days to mull over the situation� or, you could give the student hints about where they need to go to find an answer� students need to develop professional judgment and ownership of a decision or conclusion is salient when they are encouraged to develop the steps to reach a conclusion� iv. survey at the end of several semesters, i have administered an evaluation survey42 to my class that is different from the clinic’s evaluation and albany law’s faculty evaluation�43 the idea for a survey came from a colleague with whom i co-taught a skills course� my clinic survey is very short and asks questions about what worked and did not work in the clinic that semester and i ask for reactions on something new that i have introduced� for example, i have used the movie “rashomon”44 three times as a companion to the lecture that i give on fact investigation; one semester i used the short story on which the movie is based, “in a grove,” by ryunsuke akutagawa� i use the film for several reasons� first, to encourage my students to listen to the same story, with conflicting testimony, in an effort to demonstrate that there are different “facts” they must investigate in their efforts to create a persuasive argument� second, to impress upon students the fact that a lawyer cannot have tunnel vision when it comes to looking at a case holistically� third, the film serves as a view into a different culture and generation, so it can serve as a springboard to discussing cultural competence, an important component of a lawyer’s professional growth� the first time i showed the film, there were positive comments about the movie being a nice change from regular class work� i also got some comments that it was hard to connect the movie to the aims of fact investigation� so, i refined the assignment45, with the help of a more experienced colleague, by taking the feedback from the students and modifying it to better fit the lecture on fact investigation� i have had a couple of comments that i need to select a more “current” film at least from the “90s” but my goal would be skewed, i believe, if the students recognized the actors� why have the survey completed anonymously? for the same reason that faculty evaluations are administered anonymously, in order to encourage honesty� in an office setting, complete honesty is not to a rule of thumb; you need only review blogs or books on proper office etiquette to know it is wise to keep certain comments to yourself� getting this extra feedback from students has given me better insight on what i needed to clarify for some assignments� v. confidential notes developing a system of keeping track of an individual student’s progress and problems is especially useful� unlike a traditional class where one exam or a mid-term measures a student’s legal knowledge, a clinical professor can see dramatic changes on a weekly basis� having a mechanism to remind me of milestones, issues, and observations of the student has helped me in providing 42 i got this idea from my colleague, laurie shanks� 43 both evaluation forms on file with author� 44 rashomon (daiei studios 1950)� david chavkin suggests this film, among others, in the teacher’s manual for “clinical legal education�” 45 i was helped a great deal by my colleague, nancy maurer� 241 feedback throughout the semester and especially at mid and end of semester meetings� giving meaningful feedback is essential to the clinical experience�46 however, giving good feedback is a universal pursuit of teachers and one that is encouraged in the current push for law schools to create outcome and assessment tools�47 either at the end of the day or the end of the week, i jot down notes about the performance of each student�48 the notes are basically in three categories-supervisory meetings, seminar, positive and negative anecdotes� i do not share these notes with anyone but i use them to refresh my memory when i meet with my students� taking time to write notes to yourself throughout the semester on how each individual student is growing, or not, so that your feedback can not only be supplemented with concrete examples, but can also remind you of the noteworthy highlights of each student’s progress� conclusion the transition into teaching in the clinical setting has been a process filled with many highs and lows� the aspects that are familiar to practiceinterviewing, formulating arguments, thinking about strategytake on a new dimension when they are being cultivated in an emerging lawyer� being student-focused is what teaching is all about; what i have talked about regarding relinquishing control, being a mentor, and being available to students is a balancing act that is part of being a clinical teacher� these aspects flow and change depending on the student and they continue as each semester brings the same and new challenges� while my aim in writing this article was to convey concrete examples and ideas for new clinical teachers, my hope is that it resonates with experienced ones, as well� there has been much talk about reforming legal education49 and i think that seasoned practitioners add to the richness of legal education in ways that complement the traditional law school curriculum� seeing someone’s professional growth, someone who will be a future colleague, is a tremendous privilege� 46 “the guidance and feedback that students receive in experiential education courses influences the quality of the experience more than any other component�” stuckey et al�, supra note 6, at 175 47 id� at 239-40� 48 a sample is attached as appendix b� this is an example only� the names in this form have been made up, as have the notes attributed to these fictional students� 49 karen sloan, aals urges delay in debate over law school accreditation standards, the nat’l l� j�, march 30, 2011, available at http://www�law�com/jsp/nlj/pubarticlenlj�jsp?id=1202488584781&slreturn=1&hbxlogin=1 (highlighting the american association of law schools’ objections to several proposals being floated by the american bar association’s standards review committee, which is currently updating law school accreditation standards)� reflections upon transitions: an essay on learning how to teach after practicing law 242 international journal of clinical legal education issue 18 appendix a case plan template client: ___________________________________________________________________________ date of file origination: ____________________________________________________________ intern responsible: ________________________________________________________________ supervising attorney: prof� c� benjie louis bloui@albanylaw�edu dates and pages of case plan updates and comments: ____________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ case plan initiated: ________________________________________________________________ case plan updated _________________________________________________________________ i. parties in this action: name of dwelling’s owner: _____________________________________________________ address: _____________________________________________________________________ phone: _______________________________________________________________________ contact: _____________________________________________________________________ ii. summary of facts: iii. factual questions/problems specifically to be addressed: iv. questions of law specifically to be addressed: (i�e�, notice to vacate, eviction notice�) 243 v. statutes and regulations involved: vi. legal position: (prior legal decisions) a� lower court decisions b� appellate court decisions c� court of appeal decisions vii. owner’s position: a� factual b� legal viii. best facts to support owner’s version of the issues: issue best fact source how to get fact reflections upon transitions: an essay on learning how to teach after practicing law 244 international journal of clinical legal education issue 18 ix. apply law relevant to specific issues (from 8 above): x. our position a� factual b� legal xi. best facts to support our version of the issues: issue best fact source how to get fact xii. apply law relevant to specific issues (from 11 above): xiii. notes for negotiation/oral argument/closing: (i�e�, summary of testimony, arguments) 245 appendix b introduction to litigation clinic spring 2011 week one (1/10) doe, john – missed scheduling a meeting to discuss educational goals� i had to send two emails to remind him� apologized for oversight� –meeting – made very little eye contact� during meeting, he took notes and advised me that he struggles with writing� stated contracts was his favorite class so he was able to follow the overview on landlord/tenant law during class very well� states he does not like public speaking� moe, molly – meeting was very productive� she was thoughtful about her strengths and weaknesses� both parents are lawyers� she was clear about her desire to be a litigator� does not think that she will like writing reflections� she had to do so for field placement and found them boring� – came to court appearance with me on friday� asked pointed questions about client’s legal argument and got a good grasp of the two main issues in the case� she was able to relay the legal issues to me on the way back to school� – on a journal and states she has time management problems� jones, jane – disorganized at the meeting� she did not answer all of the questions on the educational planning form� stated she hated law school so far and hopes clinic will give her motivation to continue� (2l) feels at a disadvantage because she is first in her family to go to graduate school� – per aa, she was distracted during computer training� – in class, she stated during introductions that she has had family members who were homeless and came to live with her and her mom� seems open to sharing her feelings� smith, bob – hard to read so far� he missed extra class this week but gave no explanation of why� – epf had thoughtful answers about his skills (strong writer, hates public speaking, legal research skills are efficient)� he already knows he does not want to be a litigator� thinks this clinic will take him out of comfort zone� does not like idea of collaboration� reflections upon transitions: an essay on learning how to teach after practicing law 246 international journal of clinical legal education issue 18 week two (1/17) doe, john – assigned a case from last semester� seemed very uncomfortable in class when it was his turn to present his case during case review� the facts were not presented in chronological order (as i had advised)� talked to him about this and he said he forgot my suggestion� i suggested that we do a run-through of his case before the next class� – he initiated a meeting with me before he called the client (proactive) moe, molly – assigned a case from last semester� gave the facts in chronological order� she was following a written outline-good preparation� – she made some suggestions to jd about research and offered to help him (collegial) jones, jane – did not contribute to discussion forum on twen and her first timesheet was not detailed enough� was late for class and did not participate� appointment made for monday to discuss this� smith, bob all assignments completed� i advised him that i would assign a case to him and jane to work on together� i gave some suggestions on collaboration and lent him a book; told him to read the chapter on collaboration� i asked him to come to my office on tuesday to discuss the reading� week three (1/24) doe, john – good reflection paper about his fear of messing up a client’s case� lots of typos even though i suggested spell check� he seemed more comfortable with me during supervisory meeting� more eye contact and more questions about next steps in the case� we looked over the paper together� he stated he is dyslexic but that will not stop him from improving� i suggested seeing the writing specialist in the main building� moe, molly – reflection was a recitation of what she did over the past two weeks� i made suggestions at end of paper on how to tie the information into a comment about her professional growth� – we discussed conference call with client� she feels that the client was rude because he asked so many questions� we talked about her perception of “rude” and she realized he was anxious about 247 a new person on his case� – good comments in class about lack of access to lawyers in housing court jones, jane – honest reflection paper on her difficulty with school and life and how the clinic’s law firm format will give her a dose of reality� – during our meeting, she said that she was recovering from an illness and missed deadlines� she has job on the weekends so she is adjusting to a lot� we discussed her schedule, principles of professionalism and strategies� – told her she would work with bob on a new case� she was relieved; states she is a good collaborator and bob will help her stay on schedule� we discussed balancing work and school� smith, bob – well-written reflection on how he would have to make many adjustments because of the clinic� he hopes to get along with co-counsel� – articulated good points from this week’s reading in an organized manner during class� – we discussed collaboration and he said he decided that dividing tasks will be best way for him to work� i urged him to talk to co-counsel first before making a decision on that� reflections upon transitions: an essay on learning how to teach after practicing law 248 international journal of clinical legal education issue 18 special issue: european network for clinical legal education 6th conference the ‘second wave’ of spanish clinical legal education: empirical, pedagogical, and institutional lessons for a pilot course and program at the university of granada masao javier lopez sako,[footnoteref:1]i universidad de granada, spain [1: i associate professor of law, universidad de granada.] eduardo r.c. capulong,[footnoteref:2]ii city university of new york, usa [2: ii professor of law and director, lawyering program, city university of new york school of law; formerly professor of law and associate dean for clinical and experiential education, university of montana alexander blewett iii school of law, and co-chair of the american association of law schools section on clinical legal education.] andrew king-ries,[footnoteref:3]iii university of montana, usa [3: iii professor of law, university of montana alexander blewett iii school of law.] pilar fernandez artiach,[footnoteref:4]iv universidad de valencia, spain [4: iv associate professor of law and director of the legal clinic for social justice, universidad de valencia.] spanish clinicians today benefit from the ‘first wave’ of early adopters. we also benefit from decades of clinical scholarship—most recently about the western european and global clinical legal education movements—and empirical data on what lawyers actually do and need in practice. in this article, the authors summarize key empirical, pedagogical, and institutional lessons to ground the creation of a pilot course and program at the university of granada. i. introduction the benefit of being a later adopter is that we learn from our predecessors. having blazed the trail, the founders of spanish clinical legal education—the “first wave” of clinicians— have provided important lessons for those of us now embarking on the project of creating a clinical course and program at the university of granada. our nascent endeavor also benefits from the broader european experience, from the clinical legal education movement internationally, and from studies of present-day lawyering. no longer do we proceed from conviction but, apropos of our project, now proven experience. at the 2018 european network for clinical legal education conference in turin, laura scomparin called for a “deeper theoretical framework” for the integration of clinical methodology into the entire european legal curriculum.[footnoteref:5] in this article, we offer a modest response to this call by describing the project to create a clinical course at the university of granada—the first of its kind at the university and hopefully the precursor of a program—that we ground in three sets of lessons: the empirical, the pedagogical, and the institutional. empirically, we draw from actual law practice, in particular studies of what lawyers need in their day-to-day work—especially during their first years after graduation—and the use of such data to reverse-engineer a modern legal curriculum. pedagogically, we draw from what is now an international canon on clinical legal education. and institutionally, we draw lessons from spanish clinicians who have successfully translated personal interest into institutional commitment. [5: conference notes on file with authors.] ii. spanish clinical legal education: innovation in the context of the european, u.s., and global movements we begin with a brief history of spanish clinical legal education. unlike our counterparts in central and eastern europe—which, during the mid-1990s, received considerable financial and training resources for the creation of legal clinics in that region[footnoteref:6]—clinical legal education arrived in spain during the first decade of the 21st century, with no such help other than the influence of and contacts with latin american and u.s. clinicians. until then, the spanish academy had been focused on “what to teach” rather than on “how to teach” law students. [6: a brief description of this financial aid can be found in alberto alemanno & lamin khadar, reinventing legal education: how clinical education is reforming law teaching and practice in europe, 9 (cambridge univ. press 2018) [hereinafter alemanno & khadar].] it has been common in european clinical literature to point to the bologna process as the catalyst for the creation of legal clinics in that period.[footnoteref:7] this is so because the bologna process concerned itself in part with how to teach and learn law.[footnoteref:8] in spain, in addition, the public debate caused by the bologna declaration of 1998 made it possible to update, in 2010, a curriculum that had not undergone any significant reform since the end of the franco dictatorship in 1975. alberto alemanno and lamin khadar cite other concurrent factors that may have caused such a development and that occurred simultaneously with the implementation of the bologna declaration; they include: [7: see, e.g., diego blázquez-martín, the bologna process and the future of clinical education in europe: a view from spain, in frank s. bloch, the global clinical movement: educating lawyers for social justice 125 (oxford univ. press 2010).] [8: id.] the internationalisation and europeanisation of domestic legal fields; the emergence of supranational and international jurisdictions and tribunals; the emergence of a european and a global market for legal education; increasing demands for relevance in law school education; the emergence of csr/service learning/community engagement ethic within european higher education institutions; increased focus on innovation and practical-skill-based education within european higher education institutions.[footnoteref:9] [9: alemanno & khadar supra note 2, at 17.] spain was in the vanguard of the clinical movement in western continental europe, but was quickly followed by italy, france, and germany. what is now known as the “first wave” of spanish clinical legal education refers to the four universities that initiated the clinical movement in spain during the process of reforming the law curriculum to adapt it to the european higher education area: the rovira i virgili university in tarragona, the pioneer, with its establishment of a penitentiary clinic in 2002; carlos iii university of madrid (2005); the university of barcelona (2005); and the university of valencia (2006).[footnoteref:10] [10: see pilar fernández artiach, jose garcía añón & ruth mestre i mestre, the birth, growth and reproduction of clinical legal education in spain, in richard grimes, re-thinking legal education under the civil and common law: a road map for constructive change 148 (routledge ed., taylor & francis group 2018).] since then, the spanish clinical legal education movement has grown and consolidated slowly. it has taken time to introduce clinical legal education to both universities and professors, an introduction that has occurred mainly through the exchange of experiences in conferences focused on innovative law teaching.[footnoteref:11] another factor influencing the development of the clinical legal education movement has been specific national meetings of legal clinics, at times during the congress on teaching innovation in legal studies. these initiatives have bolstered the clinical movement and led to the creation of the spanish network of legal clinics.[footnoteref:12] to date, the network has a registry of 26 legal clinics.[footnoteref:13] a final, no less important, factor is the participation of spanish clinicians as active members in european and international networks.[footnoteref:14] the last meeting of the network, in october 2018, saw the approval of the so-called “declaration of salamanca,” which, among other content, pledged the promotion of the clinical legal education in spain.[footnoteref:15] [11: notable among these conferences was the ii national congress held in malaga in 2007—considered the place and time of the official birth of the spanish clinical movement, see blázquez-martín supra note 4, at 129, and the v national congress held at the university of valencia in 2013, which featured panels exclusively devoted to clinical legal education and the presence of foreign professors who specialized in the subject.] [12: the network was established through different meetings held in 2007 at the universitat rovira i virgili, in tarragona; in 2010, 2013, and 2016 at the university of valencia; in 2014 at the carlos iii university, in madrid; in 2017 at the university of alcalá in madrid; and in 2018 at the university of salamanca.] [13: red espanola de clínicas jurídicas, quienes somos, http://clinicas-juridicas.blogspot.com/p/quienes-somos.html (last visited january 7, 2019).] [14: in this regard, there are spanish professors appointed as members of the board of directors of the european network for clinical legal education (encle) and members of the steering committee of the global alliance for justice education (gaje); meetings or conferences of these networks have been organized in spain, specifically at the university of valencia, where spanish clinicians actively participate as panelists or lecturers.] [15: the text of the declaration reads, “declaration of salamanca legal clinics and university social responsibility (october 19, 2018). members of the spanish university network of legal clinics, gathered in salamanca on october 19, 2018, in the context of the 7th national meeting of legal clinics and the 8th centenary of the university of salamanca, joining the european and global movement that defends the relevance and necessity of clinical legal education, and considering: that society needs professionals who, in addition to having solid technical knowledge, exhibit and deploy a critical thinking for the defense and guarantee of our system of rights and freedoms. that the need to train professionals with an open and creative mind should be vindicated to address the new challenges that contemporary societies face, with special attention to the situation of the most vulnerable groups. that the clinical legal method promotes the acquisition of skills, abilities and competences that are essential for a rigorous and committed performance of the legal profession. that the university, for the sake of its social responsibility, may and should contribute to building a more equitable and just society, in which the principles and values ​​associated with the social and democratic state of law inform its action. we proclaim the following commitments: first: to promote and improve active and experiential learning and practical training of students, through clinical legal education. second: to contribute to the training of critical of the system professionals and sensitive to the idea of ​​social justice in the current socio-political context, linking learning to social needs existing in the vicinity. third: to promote the defense of the rights of persons and less favored groups, at risk of social exclusion, in a situation of special vulnerability, or who have been subjected to some form of inhuman or degrading treatment or discrimination. fourth: to promote in students the social conscience, ethical values ​​and commitment in the defense of human rights and the rule of law in the local, state and international context. fifth: to promote the creation of joint knowledge, between civil society and the university, as well as to promote the transfer of knowledge and research generated at the university. sixth: to contribute to the development of university social responsibility as a strategic factor for the involvement of the university in society and the presence of society in the university. seventh: to promote the networking and collaborative work of the legal clinics in the state, european and international context, encouraging new universities to join the clinical legal movement and sharing experiences and knowledge.” (the translation are the authors’.)] currently, the main challenge for the network is the signing of a framework agreement for collaboration between it and the general council of the legal profession,[footnoteref:16] so that legal clinics can use the agreement as a referent with regional bar associations, in case there are no specific agreements in this regard. according to the agreement’s provisional content, the parties’ aim is to reinforce the teaching of values and social responsibility to undergraduate and postgraduate students of law and facilitate practical training of students through participation in socially responsible activities and pro bono cases related to persons and groups in vulnerable situations, supervised by volunteer lawyers and professors. [16: in spanish, consejo general de la abogacía española, a body similar to a national bar association.] since clinics (as yet) do not have legal status and, therefore, cannot participate directly in the signing of the agreement, the conference of rectors of spanish universities (crue) has been the elected delegate to represent them. the text of the agreement, which is awaiting final signature, includes, among other issues, the collaborative working commitments assumed by clinics and bar associations—it regulates cases in which non-profit entities participate, the voluntary nature of all activities, and the confidentiality of information handled and developed during the collaborative work. iii. empirical, pedagogical, and institutional lessons for second-wave spanish clinicians a. empirical data: lawyering and modern european practice—what do spanish lawyers actually do? for the clinical legal education movement, the motivating question always has been: what are we preparing students for? this threshold question ought to define curricular content—and is the reason we are intent on reforming spanish legal education. in spain, as elsewhere, a chasm continues to exist between what and how law students are taught and what and how they are expected to be able to do upon graduation. global as the clinical legal education movement has become, the law school curriculum remains mired internationally in doctrinal instruction. in the u.s., the case-dialogue method conducted in the large lecture class continues to dominate the first year of law school. the same is true in spain. in contrast, actual lawyering and, in particular, empirical studies of actual law practice, repeatedly and consistently have emphasized the need for law students to develop professional skills and values. in the u.s., these studies date at least as far back as 1914, when the carnegie foundation published a study of the socratic method.[footnoteref:17] that study was followed by alfred reed’s seven-year examination of the legal curriculum, which was published in 1921.[footnoteref:18] more recently and influentially among these studies are the 1992 maccrate report, the 2007 carnegie report, and roy stuckey’s 2007 book on “best practices for legal education.”[footnoteref:19] [17: see william m. sullivan, after ten years: the carnegie report and contemporary legal education, 14 univ. of st. thomas l j. 331, 332-33 (2018) (discussing inter alia 1914 and 1921 carnegie reports).] [18: id.] [19: see also deborah maranville, lisa radtke bliss, carolyn wilkes kaas & antoinette sedillo lopez, building on best practices: transforming legal education in a changing world (carolina academic press eds., 2015).] richard wilson summarized four recent sets of supporting data in his recent book on the global clinical legal education movement:[footnoteref:20] the 2008 shultz-zedeck study, which interviewed hundreds of lawyers, law faculty, law students, judges and clients;[footnoteref:21] the 2012 national conference of bar examiners study, which looked at the work of more than 1,500 lawyers in practice from one to three years;[footnoteref:22] the 2016 institute for the advancement of the american legal system (iaals) study, which examined the work of 24,000 attorneys representing all 50 states;[footnoteref:23] and a 2013 university of dayton law school study, which analyzed a focus group of 19 dayton-area practitioners.[footnoteref:24] like findings before them, these studies show that knowledge of legal doctrine or theory is only one among numerous other competencies required for able practice. for example, the shultz-zedeck study identified eight categories of “effectiveness factors” that, in addition to the doctrinal knowledge—which they grouped under the “intellectual and cognitive”—includes “research and information gathering,” “communications,” “planning and organizing,” “conflict resolution,” “client and business relations,” “working with others,” and “character”.[footnoteref:25] [20: richard j. wilson, the global evolution of clinical legal education (cambridge univ. press 2018) [hereinafter wilson].] [21: id. at 18-19; see marjorie m. shultz & sheldon zedeck, final report: identification, development, and validation of predictors for successful lawyering, 24-25, (sept., 2008), https://www.law.berkeley .edu/files/lsacreportfinal-12.pdf [hereinafter shultz & zedeck].] [22: id. at 20.] [23: id. at 21.] [24: id. at 21-22.] [25: shultz & zedeck, supra note 17.] these findings are nearly identical to those of a similar studies of lawyering in europe. in 2005, for example, the law society of england and wales developed a list of “core general characteristics and abilities that solicitors should have on day one in practice.”[footnoteref:26] these characteristics include the ability to: “effectively use current technologies and strategies to store, retrieve and analyze information,” “apply techniques to communicate effectively with clients, colleagues and members of other professions,” “manage their personal workload and manage efficiently and concurrently a number of client matters,” “effectively approach problem-solving,” “recognize clients’ financial, commercial, and personal constraints and priorities,” “demonstrate the capacity to deal sensitively and effectively with clients, colleagues and others from a range of social, economic and ethnic backgrounds,” and “demonstrate appropriate behavior and integrity in a range of situations.”[footnoteref:27] [26: roy stuckey, best practices for legal education: a vision and a road map 53-54 (clinical legal education association 1st eds. 2007) at http://www.cleaweb.org/resources/documents/best_practices-full.pdf, citing the law society, second consultation on a new training framework for solicitors, § 4, ¶ 46 2003) [hereinafter stuckey].] [27: id. at 52-53. see also gold, mackie, & twining, w. (eds.), learning lawyers’ skills (butterworths: london 1988); caroline maughan & julian webb, lawyering skills & the legal process (cambridge univ. press 2005).] most notable from this data is that doctrinal knowledge ranks below the other competencies required of the new lawyer. for example, the central question the iaals study asked was “what do attorneys need right out of law school to succeed?”[footnoteref:28] alli gerkman and zachariah demeola found that new lawyers needed three types of foundational skills, competencies, and characteristics: legal skills, cross-vocational professional competencies, and characteristics such as integrity and trustworthiness.[footnoteref:29] it is worth quoting their findings with respect to doctrinal knowledge at length: [28: alli gerkman & zachariah demeola, the bar examiner: foundations for practice, 17 (summer ed. 2018), http://www.ncbex.org/assets/media_files/bar-examiner/issues/be-870218-online.pdf [hereinafter gerkman & demeola].] [29: id. at 18.] [s]urvey results suggest that it is not the granular, practical knowledge or knowledge of substantive law that new lawyers need to have in hand immediately. in fact, foundations that fell into the legal skills type made up only 16 of the 77 foundations identified as being necessary for practice right out of law school—by far the lowest among the three foundation types. moreover, of the legal skills that practitioners believed new lawyers need to be successful, maintaining core knowledge of substantive and procedural law in the relevant focus area(s) was low on the list. only 50.7% of respondents believed that maintaining core knowledge of the substantive and procedural law was necessary right out of law school. indeed, that foundation barely made the list of 77 foundations that are necessary out of law school.[footnoteref:30] [30: id. at 25.] such knowledge becomes even less important when we consider how it is taught—i.e., impractically or abstractly, and passively, usually, as mentioned, through lectures in large classes. in other words, the data on actual practice make clear the irrelevance of most legal instruction—a finding stunning in its absurdity and consistency. the empirical data also call into question not just how we teach but what we teach. as alemanno and khadar observed, european lawyering is undergoing internationalization and europeanization. no longer is practice defined by national boundaries. instead: any lawyer, regardless of the geographical scope of her practice, is increasingly expected to work and research across countries and regions with differing legal traditions … it is no longer possible to teach consumer law, tax law, or environmental law, to name just a few, without at least some basic notions of international law. yet the progressive internationalization of law has not been followed up by a parallel internationalization of legal education. in other words, the traditional legal curriculum has not been denationalized.[footnoteref:31] [31: alemanno & khadar, supra note 2 at 13.] according to alemanno and khadar, internationalization and europeanization have come alongside the proliferation of other professional roles[footnoteref:32] and the emergence of a european and global market for legal education.[footnoteref:33] [32: “the new legal professions include compliance officers, regularly affairs specialists, and in-house lawyers, as well as policy-makers and legal consultants (e.g. tax experts, lobbyists, regulatory affairs).” id. at 15.] [33: id. at 17-23.] actual practice demands training equal to these challenges. empirical data must be the bases upon which any reform of legal study ought to come. hence, there are two lessons here: first the need to study the actual practice of spanish lawyers and, second, to use such data to reform legal education—at least on the master’s level—to better prepare lawyers for such actual practice. we need a concrete understanding of what modern law practice looks like in order to reform curricula accordingly. what do lawyers actually do? what substantive knowledge do they need? what skills? what values? how should we equip them—particularly in light of the current historical moment? b. pedagogical theory in the u.s., as mentioned, critics have long criticized american law schools for not sufficiently preparing students for the practice of law. as roy stuckey observed: since the 1970’s, numerous groups of leaders of the legal profession and groups of distinguished lawyers, judges, and academics have studied [american] legal education and have universally concluded that most [united states] law school graduates lack the minimum competencies required to provide effective and responsible legal services.[footnoteref:34] [34: stuckey, supra note 22.] in addition, a consensus has emerged from these assessments that the best way to prepare u.s. law students for practice is through experiential learning in clinics or field placements.[footnoteref:35] participation in experiential learning has been associated with many positive educational outcomes. for example, “[e]xperiential education gives students opportunities to be actively involved in their own education, and it has positive effects on their motivation, attitudes toward the course, willingness to participate in class, ability to ask insightful questions, and acquisition of knowledge and skills.”[footnoteref:36] more importantly, clinical education has been identified as critical to “responsible professional training.”[footnoteref:37] as the carnegie report noted, experiential learning is “the law school’s primary means of teaching students how to connect the abstract thinking formed by legal categories and procedures with fuller human contexts.”[footnoteref:38] [35: id.; see also gerkman & demeola, supra note 24.] [36: id. at 122.] [37: id. at 123 citing william m. sullivan, anne colby, judith welch wegner, lloyd bond & lee s. shulman, educating lawyers 98 (draft july, 2006).] [38: id at 123.] in response to these insights, the american bar association—the body responsible for establishing u.s. law school accreditation standards—has recently adopted a requirement that all u.s. law students must receive some experiential learning and that law schools must provide “substantial opportunities” for students to participate in law clinics and field placements.[footnoteref:39] [39: aba standard and rules of procedure for approval of law schools 2018-2019, 16 (2018) https://www.americanbar.org/content/dam/aba/publications/misc/legal_education/standards/2018-2019.] according to the aba standards, to be considered a field placement or a clinic, a course must satisfy ten requirements. the field placement course must (1) be “primarily experiential;” (2) be integrated in teaching legal knowledge, skills, and values; (3) theorize skills instruction; (4) provide “substantial lawyering experience;” (5) provide “multiple opportunities” for student performance; (6) be directly supervised by a faculty member and placement staff attorney; (7) be accompanied by a seminar or tutorial; (8) have formative and summative assessment ; (9) include student self-reflection; and (10) be “sufficient[ly] control[led]” to ensure quality.[footnoteref:40] [40: id. at 17.] these requirements serve to distinguish clinical learning from classroom education and to emphasize that clinics and field placements—or externships—engage students in actual law practice under the supervision of a licensed practicing attorney and a faculty member. because students are engaged in the actual practice of law, a clinic or externship necessarily integrates the teaching of substantive knowledge (legal doctrine), professional skills, and professional identity, values, and ethics,. a clinical course is not just about the law but also about lawyering, in particular, skills and ethics, and how these competencies interrelate in a practitioner’s day-to-day work. as stuckey noted in best practices, the primary value of field placements and clinics is to assist students to “adjust to their roles as professionals, become better legal problem-solvers, develop interpersonal and professional skills, and learn how to learn from experience.”[footnoteref:41] these are the fundamental competencies needed to successfully practice law. clinics and field placements, therefore, help students obtain “minimum competencies required to provide effective and responsible legal services.”[footnoteref:42] [41: stuckey supra note 22, at 124.] [42: id. at 1.] c. institutional support today, first and foremost on the spanish clinical legal education movement agenda is institutionalization.[footnoteref:43] as our predecessors have found, personal commitment is not enough to sustain a program of legal education.[footnoteref:44] maria marques-banque has observed that “[a]t a time in which law teachers are compelled to focus on research and the resources available are scarce, the creation of legal clinics cannot rely on the initiative of those personally committed to the idea of educating lawyers for social justice. again, what is required is an institutional approach to expanding [clinical legal education].”[footnoteref:45] [43: maria marquès i banqué , towards the institutionalization of legal clinics in spain, in alemanno & khadar, supra note 2.] [44: see, e.g., wilson, supra note 16.] [45: banque supra note 39, at 98.] institutionalization has at least five pillars. first, as marques-banque and others suggest, second-wave spanish clinicians should tie their projects to their institutions’ missions: how does clinical legal education fit into a school’s and university’s strategic plan and social responsibility mission? the bologna process provided the impetus for this second clinical wave.[footnoteref:46] how do we follow through with this agenda? second, faculty interest and support are key; without them, any program is doomed to failure. third, support from bar associations—as well as from intermediary organizations—is also key, hence the network’s current effort on executing and implementing a framework agreement. the bar needs to be assured that clinics are not a market threat but rather are a means of supplementing services, promoting pro bono publico service, and ensuring graduates better able to practice. fourth, these self-same lawyers and organizations are sources of both external clinic placements and co-instructors. as externship clinicians long have found, broad and deep relationships with lawyers and offices in the community are mutually beneficial: they enrich students’ education, address gaps in legal assistance, and forge a closer relationship between law schools and the bar. fifth and finally, the services provided by the clinic ought to be based on community need. addressing community need reinforces all the other pillars of institutionalization: it discharges the school’s and university’s social responsibility mission, orients faculty to important social issues, serves those marginalized by the legal market, and fuses the university with the broader community. [46: frank s. bloch, the global clinical movement: educating lawyers for social justice (oxford scholarship online 2011).] iv. ‘proceso administrativo’ at universidad de granada again, as others have observed, “european lawyering is undergoing internationalization … yet the progressive internationalization of law has not been followed up by a parallel internationalization of legal education.”[footnoteref:47] aware of this deficiency at the university of granada, the dean asked a few years ago for faculty to collaborate on introducing english as the working language in a number of courses. as a member of the dean’s team at that time, and vice-dean for international relations, professor lopez sako obliged. as a result, he began teaching a course in english in the academic year 2015-2016. only one other professor would be willing to do likewise. as a result, there are just two english taught courses in the faculty of law at the moment. the course our project is “clinicalizing” is one of them. thus, to the novelty of using english as a vehicular language we are going to add another challenge that will hopefully contribute to addressing the internationalization of legal education. [47: alemanno & khadar, supra note 2, at 13.] along with internationalization, we also plan to add another aspect of legal training that the bologna process addresses: socialization. public university students in spain have an added obligation or duty to return to society something in exchange for what they have gotten almost free compared to other countries (the tuition fee for one year of study at the faculty of law is less than 1,000 euros). in this context, turning a course into a clinical one or introducing at least some clinical component into a course allows students to give something back to society, which promotes justice. as well, increasing the practical side of legal training has been a long-asked-for request or desire from the majority of our undergraduate law students, as the current study load consisting of practical activities in the undergraduate degree is embarrassingly low. “proceso administrativo” may be translated into “administrative court procedure” or “judicial review procedure.” as the object of study is spanish national law (civil law system), it is sometimes difficult to produce a reliable translation into english (common law system). nonetheless, the course, which is offered in the spring, contemplates a study of four months. its current syllabus is as follows: • lesson i: the ‘contentious-administrative’ jurisdiction (jurisdiction for judicial review). 1) historical evolution. the system in spain and other european countries. the legal reform of 1998. 2) the judicial review of the activity of public administration. 3) the scope of judicial review. 4) the judicial bodies in the administrative jurisdiction. • lesson ii: the appeal for judicial review. 1) introduction. 2) the parties to the court proceedings. 3) the object of the appeal. • lesson iii: the judicial review procedure. 1) the ordinary procedure. 2) the short procedure. • lesson iv: the special procedures. 1) procedure for the protection of fundamental personal rights. 2) questions of illegality. 3) procedure in cases of prior administrative suspension of resolutions. 4) procedure to ensure market unity. 5) procedure for a court order extinguishing a political party. • lesson v: the appeals against procedural decisions. 1) appeals against writs and orders. 2) ordinary appeals to the next higher court. 3) appeals to the supreme court. 4) review of a final judgment. 5) appeals against decisions issued by the court clerk. • lesson vi: the execution of rulings. 1) the obligation to execute. 2) execution modes. 3) voluntary execution (compliance). 4) forced execution (enforcement). • lesson vii: the precautionary (interim) measures. as currently taught, apart from being almost entirely in english, it is mainly based on the traditional teaching method of master classes together with some supplementary practical activities such as: small group preparation of certain specific issues and subsequent presentation of the results and debate in the classroom; individual elaboration of diagrams and/or summaries; reading and discussion of rulings; and group preparation and presentation of mini lessons to their classmates. these clearly are not enough, on the one hand, for the student’s training in skills and abilities to perform as future lawyers and, on the other hand, for gaining consciousness of their training as a meaningful activity within and for society. a. introducing a clinical approach: preliminary considerations there are a number of preliminary issues that need to be addressed prior to the introduction of a clinical course in a spanish university. many of these concerns have been gleaned from the experience of the “first wave” clinicians. in order to be successful, a clinic needs institutional support, should have a narrow practice focus, needs protection against malpractice, supervision by practicing attorneys, and qualified students. each of these considerations will be addressed in turn. changing the content of any mandatory or elective course of a degree program in a spanish university is not an easy task; it has to undergo and overcome several bureaucratic requirements starting—after all the preparatory work of designing the changes to be introduced to the course—from the approval by the faculty board (junta de centro), which may be the first (and hopefully not) insurmountable barrier. and even if you have the approval by the faculty board, the subsequent support of the rectorate is necessary. the dean of the faculty of law of the public university of navarra, for example, tried to implement a legal clinic in his faculty (he already supposedly had the approval of the faculty board), but could not go any further due to the lack of support from the rector of the university. aside from the formal requirements and conditions that are to be met, the choice of the approach to be given to the clinic is fundamental. as mentioned, there are quite a few legal clinics functioning in spain. some of them are more successful than others. success depends, mainly, on the scope that has been pursued in each case; the clinics that work best are those that do not have a general character but rather focus on a specific object—as an example, environmental law (rovira i virgili in tarragona) or human rights (university of valencia). but the main challenge seems to be the lack of institutional support and the lack of commitment of teaching staff (faculty members). it seems essential, as well, to have some other institution different from the university that can act as an intermediary between the university and larger community: for example, a foundation linked to a law firm, a non-governmental organization, the ombudsman, the city council, or the autonomous communities. having this intermediate institutional support helps to solve one of the most challenging problems that arise: the responsibility in the face of possible unsound advice; this institution would be accountable and not the university. on the other hand, the involvement of the bar association may be key to success; as mentioned above, to reach an agreement with the bar associations so that they do not see the clinics as a threat but as a collaboration with the university. legal clinics in spain do not provide actual representation and legal defense in courts. rather, they are limited to consultation and advice. it can even be pointed out that the academic advisor could recommend the subsequent advice of a lawyer. as for the teaching staff (which is not easy to secure, as our experience in implementing english as vehicular language in our faculty of law tells us), the ideal is to have teachers with practical experience and to whom this experience would be useful, either because the time devoted to clinical activity counts as normal teaching time for them or because they have some type of economic supplement or incentive. it would also be advisable to have a practicing attorney teach with a faculty member, as is the practice in externships. but all this takes money and an open mind on the part of the decision-making bodies to accept the extra cost and consider it as a forward-looking investment for the future. the selection of students who can participate in a future clinic or clinical activity is another important question. in the faculty of law at the university of granada the number of undergraduate students enrolling in the law degree every year is very high: about 500. and the number of students admitted to each group is also very high; in proceso administrativo during the spring semester of 2018 there were nearly 90 students enrolled in the english-taught group (there’s another group in which the vehicular language is spanish). providing clinical opportunities for each and every student may be complicated if there is no support from the rectorate in terms of hiring new teaching staff in order to be able to split current groups into smaller, more manageable ones. in this regard, the selection of just a few students within the group to participate in a given clinical activity may be necessary. but how to select them if there’s a larger number of students wanting to participate? as well, in spain, law studies are divided into undergraduate and postgraduate degrees. even though we inevitably intend to focus on the latter, it is worth asking: is it better for the training of law students to have some kind of clinical experience during their undergraduate studies or is it better to wait until they are at the graduate level? from the point of view of fulfilling the needs of society, it may be too challenging for undergraduate students, at least in their first or second year; but from the point of view of their training, a more practical approach is something that most students feel is lacking from the very beginning in their current undergraduate program. at the university of granada, it’s not until their fourth and last year of undergraduate studies that students have their first—and only—practical experience with the mandatory course prácticas externas (or externships), which are only three weeks long. b. ‘clinicalizing’ proceso administrativo to establish this clinical foothold at the university of granada, among the threshold questions we need to answer are: do we want to start right away even though we have to make do with a modest beginning and develop a more complete and definitive plan on later, based on the results of first experiences? or is it better to have an ideal plan, very well-defined and designed from the beginning, and stick to it even though the conditions to make it possible are not in place for a long time (or maybe forever!)? if we pursue the second option some further questions are appropriate: what do (administrative) lawyers actually do? what parts of the syllabus are best taught experientially? or from another point of view, what does the community need? if we opt for the first alternative, the questions to be made in the beginning are quite different: what can be done to start with? what is feasible right now taking into account the human and material resources available? further development, of course, would require answering the other questions, but that could be done at a later stage. since turning proceso administrativo into a clinical course needs the initial approval of the decision-making bodies of the university and having some previous positive experience would help convince these bodies, introducing some clinical component to the course as it is now, just by changing one or some of the current practical activities into an activity or activities with a clinical approach, would allow us to start right away with little effort and to ensure positive results (for example, in the form of students’ or external institutions’ opinions) thanks to the limited and easily manageable scope of the experience. we decided, therefore, that the first step would be just an individual decision with no institutional involvement or commitment. given these initial considerations and constraints, a “street law” model may be most appropriate here at the outset. there’s a good example of this model in spain in the university of oviedo.[footnoteref:48] the model aims to teach law in a practical way to non-lawyers, so that it can be useful in daily experience—i.e., “in the street.” in this model, law students (underor post-graduate) supervised by their teacher turn into educators, trainers or disseminators with respect to a certain social group in a given subject matter while they reinforce the theoretical and practical training they have just acquired at the law school by presenting what they have learned in a clear and pedagogical way to an audience with little or no legal knowledge.[footnoteref:49] [48: 8 miguel ángel presno linera, un proyecto de innovación docente y de transformación social: la clínica del máster en protección jurídica de las personas y los grupos vulnerables de la universidad de oviedo (a teaching innovation and social transformation project: the clinic of the master on legal protection of vulnerable people and groups from oviedo university) (oñati socio-legal series 2018) http://ssrn.com/abstract=3126178] [49: id. at 3-4.] the street law model adopted by the university of oviedo is aimed at high school students, as would our clinical activity in proceso administrativo. but some important differences may be found between the experience in the university of oviedo and the one we intend to develop: in the case of the university of oviedo the participants are postgraduate students of the “master on legal protection of vulnerable people and groups” with different academic backgrounds (not law graduates, but from social work, psychology, pedagogy, education, labor relations, etc.). in ours, they are undergraduate law students in an elective course—proceso administrativo; in oviedo, the language in which the classes are taught is spanish, in our case it is english (which may make it difficult for the students to communicate what they learn in a different language); the master course of oviedo has a duration of one year (which they consider to be a short time), in proceso administrativo it is even shorter – only four months. the first difference implies that our students are less academically prepared in general, but they also are more specifically trained in legal matters. it also may be more difficult to attract the interest and attention of high school students as the content of proceso administrativo is probably much less attractive to them than the protection of vulnerable groups. that means we’ll have to focus on the preparation of the presentations so as to be able to capture the attention of high school students in the usefulness of administrative law, which is a subject law students themselves usually need to know and to be aware of (though they tend to think of administrative law as a boring and not practical subject). thus, the handicap is turned into an incentive. the language of instruction is another important issue. proceso administrativo is taught almost entirely in english, but the presentations to the high school students must be done in spanish as their level of english is not enough to understand a topic which is difficult enough for them even in their mother tongue. that poses a further complication and a greater challenge. on the other hand, it may serve as a way to check our law students’ level of understanding—in spanish—of some difficult-to-translate legal terms and concepts that are taught directly in english. again, in the face of this difficulty, the clinical activity favors a positive outcome. the short duration of proceso administrativo compared to oviedo’s master course has to be taken into account as well. the shorter duration is a strong reason to choose the street law model, since other clinical activities require longer dedication and follow-up. but the effective organization of the preparation, execution, and assessment of the sessions becomes paramount. in oviedo, in the first two weeks, the students enrolled in the master course are informed of the existence of the clinic, its objectives, functioning rules, and activities. when they are about to finish the classes corresponding to the elective modules of the course (mid-january), they are reminded again about the clinic and asked for their collaboration. at the end of january, once the number of students willing to participate is known, an intensive session with students and teachers is conducted to explain the organizational and operational details. during the month of february the groups (which consist of a teacher and several students) are formed based on the different topics (gender violence, asylum and refuge, school bullying, gender equality in labor relations, poverty and social exclusion, and disabled persons’ situation). during the months of february and march the groups and their respective teachers, together with the coordinator of the clinic, establish ongoing contacts with one or more high school teachers in order to select the audiences of the presentations, outline the topics, and organize the sessions—as many as 13 in the master course’s second edition. between february and april, the teacher of each group guides the students in the realization of content and supervises the preparation of teaching materials for the sessions at the high schools. finally, during the months of may and june, the planned presentation sessions are carried out. obviously, in proceso administrativo, the timeline, although very similar in content and sequence, must be shortened and some changes must be introduced in order to start the clinical component: the initial information about the clinical activity would be given in the first instructional day; during the month of february, the group or groups (the topics for the presentations, at least at first, should be limited to the first and second lessons of the syllabus), depending on the number of students interested in participating, should be prepared and then formed and the organizational and operational details explained in one single session before the end of february; the contacts with the high school teacher/s would be established as soon as possible after the previous explanatory session; at the same time, the teacher (the only one, in our case) will start guiding and supervising the students in the preparation of the presentations at the high schools; finally, at the end of april or, at most, in the first week of may the presentation session/s should be carried out as the term (instructional period) finishes on may 14, 2019. c. assessing the pilot we plan on implementing these changes in the spring term of 2019. and to further our goal of institutionalization, or at least sustainability, we of course plan on assessing how we meet all our goals. [footnoteref:50] [50: see jose garcia añon, how do we assess in clinical legal education: a reflection about reflective learning, 23 int'l j. clinical legal educ. 48 (2016).] among such assessments will have to be surveys of all the stakeholders: our law students in the first place, high school students, high school teachers, and other professionals who may occasionally collaborate. in line with best practices, we will also assess whether students have achieved their learning outcomes—from there, their instructors’, and third-party perspectives. as is done in oviedo: “once the activities are carried out in each high school, they are assessed by collecting the opinions of the participants in the group that made the presentation, of the teacher of the clinic that accompanied them and of the high school teachers that attended the presentation, who may also provide us with the impressions of the [high school] students.”[footnoteref:51] we also will need to assess institutional outcomes, that is, whether we’ve progressed on convincing our law and wider university colleagues of the importance of clinical teaching. among other measures, this would be concretized by actual support—financial and otherwise—from the law school, the university, the bar, and the wider community. [51: see n.44.] v. conclusion we have a ways to go at the university of granada. but we have a deep well from which to draw, empirically, pedagogically, and institutionally. we have empirical consensus on what it takes to be a competent practitioner. we have scholarly consensus on how to teach competence. and we have consensus on an institutional agenda. above all, perhaps, we have a network of active spanish—and european, u.s., and other international—clinicians as comrades. we’ve attempted to sketch a plan for the university of granada in this article. with this solid grounding, we are hopeful in taking the first step. 147 aba/ceeli’s1 clinical legal education programme in serbia professor emilija stankovic karajovic2 the goal of the ceeli legal education reform program in serbia has been to assist serbian law faculties in reforming the curriculum so that law students become lawyers who can contribute to the development of the rule of law and the transition to a market economy. as a country in transition, serbia must prepare future lawyers who are capable of absorbing and implementing the breadth of changes underway in the legal system. unfortunately, in both its pedagogical methodology and its resources, the education predominantly provided to law students in serbia is woefully inadequate. education is typically based on memorisation of code provisions, with little opportunity for practice-based learning or creative thinking, and many of the textbooks used by law students date back to the socialist era. ceeli introduced legal education reform through the concept of the development of practical skills in legal education and legal clinics for students in the law faculties in belgrade, nis, kragujevac and novi sad. the novi sad and belgrade law faculties teach classes on legal ethics and document drafting. the nis and kragujevac law faculties offer classes on legal ethics, counselling and interviewing skills. the belgrade law faculty plans to begin a live client clinic focusing on family law issues in fall 2003. the nis law faculty is also planning to develop a live client clinic. ceeli provided advice, advocacy grants and technical assistance to all four law faculties (the law faculties are not being funded by soros3): – in december 2000, ceeli organised a week long visit by professor carrie hempel, a clinical law professor from university of southern california. ms hempel spoke at several law faculties about the concept of clinical legal education and the advantages of practical teaching methodologies. at the time of her visit, clinical legal education was completely unknown to serbia. – ceeli’ s next effort in introducing clinical legal education in serbia was a workshop in may 2001 in rousse, bulgaria, for professors and students from three serbian law faculties who expressed the greatest interest in promoting clinical legal education at their respective universities. the workshop provided valuable information about how an actual family law clinic based at a law faculty operates. aba/ceeli’s clinical legal education programme in serbia 81 1 aba / ceeli – the american bar association / central east european law initiative 2 professor emilija stankovic karakovic is the legal clinics co-ordinator at the faculty of law at kragjevac university 3 the soros foundation – ceeli brought three law professors to serbia to work with the law professors at the law faculties who were interested in starting clinical legal education programs. larry albrecht, former ceeli liaison and former law professor, visited serbia in november 2001 and lectured on clinical methodologies and worked with the nis, belgrade and novi sad law faculties on the development of their practical skills programs. in march 2002, professor peter hoffman, university of houston law school presented a workshop for all the law faculties in nis on teaching methodologies for practical skills education. sixteen law professors participated. professor lee schinasi, university of miami law schools came in may 2002 and gave demonstrations of modern teaching methodologies and worked on program development at all four law faculties. – in november 2002, ceeli held a round table discussion with law professors from all four law faculties in nis to share lessons learned and discuss common problems and how to overcome them. one of the outcomes of the meeting was to organise a meeting with the minister of education. later that month the meeting was held and the minister of education (a former law professor) expressed strong support for the concept of clinical legal education, but gave little hope of financial support. the legal clinics continued to exist at the law faculties in serbia mostly thanks to a number of enthusiastic professors. legal education in serbia there are five law faculties in serbia: the university of belgrade, university of novi sad, university of nis, university of kragujevac and university of pristina. belgrade is the capital city of serbia, while the other university cities are the capitals of serbian main regions and provinces. in a way, every law faculty bears and reflects the characteristics of its own region. despite these minor differences, all law faculties work under common regime of studies prescribed by the ministry of education. in order to enroll in the faculty students must have a high school diploma and pass the admission exam. the largest enrolment is in the university of belgrade which admits 2000 new students every year (compared to 800 enrolled in the university of kragujevac). only the best ranked students are financed by the government while all the others pay the tuition fee which is still relatively low compared to those at other european universities. very few students complete the four year study-course within this time; their studies last much longer. this is mostly due to lack of motivation among the students since they know that even if they finish their studies in time, it will be very difficult to find a job. teaching methods are exclusively old-fashioned. professors mechanically present their lessons in front of a large number of students and give them the list of literature for future reference. the class participation, if there is any, is almost negligible. teachers rarely allow time for students’ questions and discussions. most of the professors have expertise in theoretical matters and lack practical knowledge since they have never worked in practice. only during the so called exercises do students get the opportunity for more active participation in the educational process. students very rarely go to courts for practical training and, thus, they lack immediate contact with future vocation. the exams are in the oral form which is also considered to be one major deficiency. 82 journal of clinical legal education july 2004 the legal clinic kragujevac kragujevac is the capital of jumadija region covering the central part of serbia. it is located 120 km south from belgrade. after the turkish liberation, during the reign of prince milo (obrenovi), kragujevac was the capital of serbia. the first serbian parliament proclaimed the first serbian constitution, the so called sretenjski ustav, in kragujevac on january 15, 1804 (next year will be its 200th anniversary). also the first major state institutions such as the first court, theatre, high school and lyceum (the first institution of higher education) were founded in kragujevac. when belgrade became the capital all these institutions were moved there. the law clinics, as a form of students’ practical education, was brought to the faculty of law in kragujevac by aba/ceeli, thanks to mrs. terry ann rogers who is the director of the association for serbia. generous aid for completion of the law clinic was given by the association office in nis including mrs. mirjana golubovic, mrs. mirjana stankovic and ms. jelena jiri. the law clinic at the faculty of law in kragujevac would not have been put into effect without professor emilija karajovic who is meritorious as the coordinator. the first generation of students during the 2002/2003 school year could learn and accomplish practical knowledge following the introduction of the new methodology thanks to professor karajovic. this is was a special pioneer project in innovative teaching at the faculties of law in serbia, besides the faculty of law in kragujevac, similar programs are underway at the law faculties in novi sad, nis and belgrade. it would be superfluous to indulge in explaining the need for these changes in teaching and emphasise the benefits for the students who will be lawyers after completing their studies, whether they work in administration of justice or as judges, prosecutors and attorneys or in any other field which requires legal knowledge. we are familiar with the fact that graduate law students could acquire practical knowledge after completing their studies at their first places of work. this, so called, practical training of students who have just graduated, depended on their teachers’ (experienced colleagues) will and free time at the work place. in addition let us not forget that experienced colleagues are not experts in transmitting their knowledge, no matter how good they are in their work. law clinics represent something new and a step further in teaching at the faculty of law in kragujevac and at another three law faculties in serbia. professors engaged in clinical work were introduced to numerous educational programs either through the visit of american clinical professors which lasted for several days or serbian professors attending conferences in riga, sarajevo, skopje, budva, warsaw, moscow, timisoar, etc. the faculty of law in kragujevac maintains a good co-operation with law center in houston. the two faculties organised the exchange of students and professors so one professor and two students from each faculty were on study visits in the usa and serbia respectively. practical education of prospective lawyers is not a novelty. law clinics originated in the usa, but even romans were, in fact, acquainted with that kind of education. they were introduced into american law schools almost 30 years ago and have continued to develop internationally with russia and the rest of the former soviet union countries participating at the beginning of the last decade of the 20th century. today there are more than 5000 law faculties which include legal clinic training. law clinics have developed also in other parts of the world: in macedonia, bulgaria, bosnia and herzegovina, lithuania, poland, romania, etc. serbia is joining that great family now. it is necessary to mention that legal clinics are also widespread on the african and asian aba/ceeli’s clinical legal education programme in serbia 83 continents. a step towards the integration of law clinics was performed in 1999 in india when the world organisation gaje (global alliance for justice education) was established. there are law clinics in more than 2000 countries all around the world. this paper presents the methodology and program review of the law clinic implemented at the faculty of law in kragujevac. i hope that it may contribute to further studies in this field because new generations of students seem to be enthusiastic about it. they are aware of the benefits for their future which result from it. let us quote some students and their opinions: – ‘i am glad because someone has the courage, and this is courage indeed, to start with this kind of work in such a conservative society’. – ‘i did not like law when i enrolled in the faculty of law in kragujevac, but the law clinic is something rare and i have really become interested in it. they should have introduced them earlier’. – ‘this kind of conducting instruction is exceptional and should become part of the regular program as soon as possible’. what has been done at the faculty of law in kragujevac the program included four thematic wholes: – introduction to new methods: playing different roles, simulation, brainstorming, the case study analysis, – ethics: general course, judicial ethics, lawyer ethics, – client interviewing: psychological elements of the interview, preparation for the interview, simulation, – preparing legal documents: agreements, legal suits, appeals, wills including witnesses, criminal charges, (requests for bringing charges against drug dealing, producing and handling, etc.) methods as we already mentioned, the standard educational process mostly included teaching where the students are merely passive observers and the teachers present their lessons without their active participation. legal clinics change such behaviour. the students are no longer passive observers but very active participants and that is why these methods are called interactive methods. the next characteristic is work in small groups. legal clinics do not accept teaching in large classrooms (amphitheatres) before the audience of a few hundred students. they require smaller groups up to 10–15 students. it is also important to note that the method allows the students to reach independent opinions and conclusions without intervention. the advantage of this work (interactive methods and small groups) is that the students are very motivated by the active participation since it appears that their opinion finally matters, which an excellent starting point for future successful work. besides acquiring specialised professional knowledge, the students develop other legal skills. they practice rhetoric, argumentative 84 journal of clinical legal education july 2004 presentation of their opinions, defending their standpoints and fighting for them, as well as accepting other people’s opinion through a democratic and constructive discussion. among the methods which proved to be the most successful are: – role playing – simulation – brainstorming – case study. we should not neglect the panel discussion, the socrates’ method, round table discussions, presentations, database, etc. role playing what characterises this method is that the teacher assigns a role to the student and he is supposed to act it out. this method provides many possibilities to the teacher. he can stress different aspects himself or use the student who is acting out the role. it is possible to emphasise good sides of somebody’s behaviour, or maybe his weaknesses. this method enables students to practice different skills. simulation the core of this method is to assign to students different tasks from the subject matter which is being practiced and then to perform the simulation of that subject. the subject matter can be imaginary. it can be prepared in advance or simulated on the spot. the imaginary subject matter allows the teacher to create a situation he wishes to have in working with students and to cover all vital elements of training. its weakness is that the teacher is not always in a position to have the concrete answer since he cannot anticipate all possible situations. but from this weakness the teacher can draw the advantage since he is in the position to teach his students how to do their work in the highest professional way. where the subject matter is prepared in advance this allows the teacher to have a situation set according to his wishes and prevents time being wasted when the simulation is conducted on the spot. short discussions with students and taking notes on their comments can help teacher before assigning the roles. even better results can be achieved if the subject is handed out to students before the simulation so that they can have enough time for preparation. each student receives a role for simulation with guidelines as to which aspects should be emphasised. if a civil law case is in question, then the students are assigned the roles of the parties, judge, lawyers, witnesses, court experts etc. then the students simulate the case. in this whole process the teacher is not a passive observer but someone who conducts the simulation setting out its objectives. it is not necessary that all the students from the group participate in the simulation. those who do not participate can analyse the simulation process. when the simulation is completed, then follows its analysis. it can help if the simulation is video recorded so that this recorded form can be used to facilitate the discussion on the simulation. a check list prepared in advance, listing necessary topics to be discussed, can also help. it is highly advisable that the actors themselves analyse their performance in order to have an insight in what aba/ceeli’s clinical legal education programme in serbia 85 they have achieved. when performing the analysis it is important to start with positive things. the teacher can start the analysis by bringing out his opinion on the parts of simulation which were well performed. brainstorming this is the method in which a group of students focuses their attention to a certain topic(s) and work towards problem solving through a joint process of brainstorming. the topic for discussion can be assigned in advance, but it is not mandatory. it is also optional to assign it in written or oral form. the blackboard is a helpful tool in this process because, firstly, the ideas written on it are obvious and, secondly, the teacher can ask a student to do it instead of him. this method represents a quick way for collecting ideas on a certain subject or issue. it is important to note that in this method there are no good or bad ideas, correct or false answers provided they are within the previously set boundaries. in this method the teacher also plays an important role in streaming the discussion towards certain aspects, but he is someone who only directs and not influences the discussion by bringing out his personal opinion. the teacher should always bear in mind that the students are different individuals and that there are some students who have difficulties in expressing themselves. it is important that the teacher should include such students into discussion as well. upon completing the list of ideas it is useful to go over them once again and make a short summary, that is, to narrow the list through a constructive discussion. this final list should include different opinions of students and not only the standpoint of the majority of students where the arguments of individuals are exempted. the advantages of this method are that it allows creative, unlimited and always new possibilities and that gives the students the opportunity to obtain a realistic view of other people’s opinion on their ideas. case study this method is similar to the role playing method since it uses specific situations or specific scenario as a teaching material. however, this method also resembles the brainstorming method since it is very important to encourage the students to enter discussion and to make a list of ideas which will help in the analysis of a particular case. the subject matter of a particular case study should be prepared in advance and handed out to students in the printed form. the teacher should also prepare the questions in advance in order to facilitate assigning of a concrete tasks such as problem identification, choosing the priorities... this method allows different combinations. it is possible to divide students even into smaller groups and then to assign to such groups different, similar, or even the same tasks. the advantage of this method is that it can be used for building up students awareness of the challenges and problems without assigning direct blame or guilt to any particular individual from the group. 86 journal of clinical legal education july 2004 ethics the general course the general course represents an introduction into the entire course in ethics at legal clinics. the general course lectures include basic terms such as: professionalism, moral, ethics. the method used in the introductory part of the lecture is brainstorming. judicial ethics students are introduced to problems of judicial ethics. they are asked to describe the role of judges in a society or, for instance, to give their own description of positive characteristics of a judge. then, the topic is related to the perception of the judiciary by the public and is discussed with the special emphasis placed on the role of judges in creating the general public opinion on judiciary in a society. this topic on judicial ethics is also treated in an interactive way where the students are encouraged to seek the answers independently. again the brainstorming method is used along with other techniques such as: video presentation, work in small groups, discussions on hypothetical situations and case study. lawyer ethics general public opinion on lawyer ethics is not positive, that is, it is widely considered that they are not always guided by ethical principles. even as early as in the 17th century clients complained about their legal representatives. the following passage reflects generally accepted opinion about this profession: november 26, 1686 i had dinner with my colleagues, lord chancellors, which was also attended by three legal representatives. after the dinner they were in good mood and loosened themselves revealing some parts of their legal experience, for example how they had dragged some processes to exhaustion using various tricks. they resembled a gang of bandits telling each other how many wallets they had stolen just for the sake of mocking. however, you can not mock the god. john evelyn (1620–1706). preparing legal documents this was the easiest part of the program for the professors included in the work of these clinics. since the students worked in small groups of a maximum of 10 students and the professors were well trained and experienced in this field, success was easily attainable. as an example of the work in the legal clinic at the faculty of law in kragujevac, i think it would be a good idea to enclose the letter of two law students from the university of houston, texas who spent some time at the faculty of law in kragujevac as exchange students: aba/ceeli’s clinical legal education programme in serbia 87 dear clinical professors, on behalf of my fellow exchange student heather and professor beassie in houston, allow me to say that it has been a great privilege and honour to have taken part in your classes for the past month. our time here is winding down and i must bid you all farewell. i hope our paths cross again very soon because i enjoyed my experience here and i learned quite a bit from you and your colleagues. you asked me to compose a short e-mail with my thoughts on what i observed in our class. it is a pleasure to reflect on this issue. first of all, i would like to say that the level of enthusiasm and participation in the clinic classes is very impressive. i think that the class is a great forum to develop ideas and convey them in a classroom setting. from what i understand, it is very unusual to be allowed this freedom at the pravni pakultet. the subject matter was very useful from a clinical legal education standpoint, too. judicial and lawyer ethics are practical things to study and the classes on preparing legal documents were also informative. i think the best way to approach any comments would be to emphasise the difference between your class and the one i experienced at the university of houston. an overview of our clinical education can be found on the website www.lah.uh.edu. we have a civil, juvenile, immigration, mediation, transactional, and consumer clinics. furthermore, we have judicial externship where professor beassie places students in courts to do some work there. my own clinic was the immigration clinic. we had a week-long orientation where, for several hours a day, we would learn about the statutes we would be working with, clinic procedures, strategies for interviewing clients, and courtroom decorum and advocacy. we started meeting with our clients from the first week that classes started. for cases that can not be resolved in one semester, it is a student’ s responsibility to prepare transfer memoranda to the student who takes over a case. we helped indigent clients with, for example, obtaining a status that the law allowed for them, obtaining work permits, obtaining permanent residence cards, and representing in court those clients who were facing involuntary removal from the country. our physical set-up is also very useful to note in understanding how we operate. students have their own desks all in one location specifically designated for clinic business. phones and computers were available to each student as well. weekly meetings on case strategy would take place between a student and professor. there are also classes once a week to discuss the case law that is relevant to the subject matter of the specific clients problems. mainly, i think the differences between your clinic and ours is that the classroom aspect of the program is conducted at the same time as the students represent clients. students are required to work on their clients’ cases for a certain number of hours per week and keep accurate notes of everything they do, including every phone call. i think that further discussion is necessary between american faculty and their serbian counterparts because they can all learn from each other. overall, i am impressed with the level of teaching at the kragujevac law faculty and the only thing that i would have liked better is to observe some actual interactions between clients and students. thank you for your attention and for being wonderful hosts as we visited your country. sincerely, bruce godzina 88 journal of clinical legal education july 2004 aba/ceeli’s clinical legal education programme in serbia 89 conclusion if we take into account that this is a new working method and new way of approaching the problem and legal education in the serbian law faculties, i can say that i am very much satisfied with the results achieved. of course we encountered many difficulties: some colleagues were unprepared for this kind of work, lawyers were not used to working with students, etc. however, i was fascinated with the enthusiasm of professors and the great interest the students expressed for this kind of work which, along with their natural intelligence and passively acquired knowledge enabled their more active participation in the class. i sincerely hope that we shall find the way to financially support our legal clinic in the following academic year. we have already prepared the program for a new group of students and planned to involve the previous group of students in the work with clients. editorial the special issue: problematising assessment in clinical legal education elaine hall northumbria university, uk elaine.hall@northumbria.ac.uk on 4th june 2015 northumbria university hosted an interactive seminar and discussion forum, problematising assessment in clinical legal education 1 , featuring professor judith mcnamara (queensland university of technology), professor donald nicholson (strathclyde university), professor jose garcia anon (valencia university), richard grimes (university of york), cath sylvester (northumbria university) and carol boothby (northumbria university). this seminar was supported by the association of law teachers and their journal the law teacher as the recipient of their seminar prize. the participants, representing legal educators from across the uk but also from finland and indonesia, explored the theme of how experiential learning in law is assessed. the international move towards an increasingly outcomes based approach to legal education and training has raised the profile and encouraged the development of a wide range of experiential learning practices in legal education. a 1 https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/lawresearch/legal-education-and-professional-skills/problematising-assessment-in-clinical-legal-education/ ( special issue problematising assessment in clinical legal education ) ( 1 ) key area of scrutiny for us at the ijcle is the extent to which these practices evidence the multiple and complex competencies they lay claim to. the challenge of how to assess and what to assess in work integrated learning, problem and enquiry based learning, clinical legal education and simulated leaning is emerging as an important and developing issue and was eagerly and critically discussed by our speakers and participants, addressing the following key questions: why has experiential learning (and clinic in particular) historically been a voluntary element in legal education? what are the implications of making cle and experiential learning assessed options? where cle is assessed, what is the nature and (implied) purpose of that assessment? can the reflective and experiential elements of cle be codified into assessment rubrics that provide guidance to students without reducing their depth and complexity? how is the clinical training and assessment of students linked to the wider discourse of what a lawyer is and can do? the presenters all made use of the work on constructive alignment by cees van der vleuten2 and we were delighted and honoured that he agreed to act as discussant for this special issue. the papers presented at the seminar were revised in the light of the discussion and challenge from the participants and then reviewed and responded to by cees. his contribution takes us beyond the legal education context and into wider debates about education and professional competence. 2 http://nrl.northumbria.ac.uk/21582/ the papers represent honest and transparent reflections on the limitations and potential of current practice. there are strong pragmatic and ethical themes about the virtues of experiential learning and the ways in which such experiences can be assessed. in particular, the claim that experiential work and clinic in particular are more ‘real’: this is attractive but also perilous, for if the student must be real and seen in the whole then the stakes for assessment are very high indeed, as cath sylvester emphasises with her title: “for now we see through a glass, darkly; but then face to face: now i know in part; but then shall i know even as also i am known” (the bible, 1 corinthians 13:12, king james version). the papers therefore represent the opening of a complex and fascinating discussion about assessment, to which i hope many of you will add your own contributions in future issues. here is the reminder of upcoming events in the cle world: there is still time to submit a proposal for two conferences. firstly, (1-3 april 2016) our colleagues in south africa host the ed o’brien international street law and legal literacy best practices conference, which will honour our late colleague ed o’brien and celebrate the 30th anniversary of the first international street law programme established at the university of kwazulu-natal (formerly the university of natal), south africa. the conference will be preceded by a three day ed o’brien memorial safari (29-31 march 2016) to the world famous hluhluwe-imfolozi game reserve where the white rhinoceros was saved from extinction. secondly, the international legal ethics conference vii (ilec vii), which fordham law school will host in new york city on july 14-16, 2016 focusing on legal education, ethics, technology, regulation, globalization and rule of law (www.law.fordham.edu/ilec2016). this conference follows hot on the heels of the risks and rewards of clinic, the ijcle conference in partnership with the association for canadian clinical legal education (accle) conference, hosted by the university of toronto from 10-12 july. submissions are now closed and we have a fantastic range of papers, seminars and symposia with sarah buhler and adrian evans as keynote speakers. registration for this event is now open! https://www.eventbrite.com/e/the-risks-and-rewards-of-clinical-legal-education-programsa-joint-ijcle-accle-conference-registration-20017850931 editorial exploring the why and how of clinic elaine hall northumbria university, uk elaine.hall@northumbria.ac.uk in this issue of the ijcle, we have a number of papers that illuminate the purposes and values of clinic. 'clinic' is a term that covers very disparate activities, as tribe mkwebu's review of frank bloch's essential handbook reveals. bloch's book is a key reference point for clinical and justice educators and this review gives an overview of the material, which will enable readers to access the aspects they need more easily. if you would like to contribute a book review, or a review of another resource, please contact me for a discussion. four of the papers in this edition address the underlying pedagogies of clinical education and, in doing so, reveal the authors’ key beliefs about the educational and societal priorities of clinical educators. judith mcnamara, catherine campbell and evan hamman explore the particular elements, potential and challenges of community lawyering, which combines pro bono ethos, lawyering skills and identity as a lawyer. they locate their work with in the service learning pedagogic tradition, one which is useful in communicating the complexity and un-evenness of clinical education experience: students have a range of learning opportunities which they mailto:elaine.hall@northumbria.ac.uk have to draw together themselves in order to construct their learning and their developing professional identity, a form of being and becoming that characterises autonomous and experiential learning (fromm, 1955; bryson and hardy, 2012). this being and becoming is notoriously hard to track and so we are fortunate to have, in two linked papers, rachel spencer’s detailed analysis of the student experience of reflective writing highlighting the cognitive and emotional challenges for faculty and students. these papers also emphasise the number and complexity of process skills and interpersonal development necessary for clinical learning and while work in this area has a long tradition, there has been a lack of clear guidance for teachers wanting to develop and assess these skills and attributes. no longer! richard grimes gives us a fine-grained account of problem-based learning (pbl) in which the roles and processes are explained step by step. alongside these pedagogical reflections we are fortunate also to have a rich example of organisational practice. nicola antoniou and patrick hassan-morlai have produced an account of the establishment of a new clinic at the university of east london which makes clear the links between the ideals of social justice and community engagement, the educational goals for students and the practical issues of governance. this paper was originally presented at the ijcle conference in olomouc in july 2014 and several others from that fantastic meeting of nearly 300 delegates from over 30 countries are currently in the review process. the next conference will be held jointly with the global alliance for justice education at anadolu university in eskişehir, turkey between 22nd and 28th of july, 2015. the call for papers will be issued very soon. references bryson c and hardy c. (2012) the nature of academic engagement: what the students tell us. in: solomonides, i. reid, a., petocz, p, ed. engaging with learning in higher education. london: libri publishing, , pp.25-46 fromm, e. (1955) the sane society. new york: henry holt & company. how do we assess in clinical legal education? a “reflection” about reflective learning josé garcía añón1 universitat de valència, spain abstract i suggest this hypothesis and these premises from the perspective of my experience in clinical legal education and the use of experiential learning methods in other “traditional” courses. firstly, institutional assessment must be distinguished from the assessment of learning. traditionally, assessment is reduced to institutional assessment: that is, to give a mark depending on the achievement of knowledge instead of focusing in the student’s learning. however, i propose (to remember) that: 1) (formative) assessment is part of learning; 2) reflective learning (and reflective skills) is/are a part of assessment. this implies a process of continuous evaluation instead of summative evaluation, for example, through an exam or a similar procedure. so, i agree with the idea that assessment “is not a measurement problem but an instructional design problem.” (van der vleuten & schuwirth). to clarify what assessment is, we have to discuss several interlinked aspects (validity, reliability and fairness), which are connected to questions that must be answered: when is the assessment considered valid…? how do we assess…? what do we assess…? some ideas to answer these questions may include the need to provide space (s) and time (s) to reflect on the learning (as a way of learning and as a skill to be acquired), which in turn implies a multiplicity of assessments and/or reflection about learning. this should also include a variety of assessments: self-assessment, peer-assessment, team-assessment, and (external) assessment. and last, but not least: as it is said, reflection should be considered not only a skill but a part of learning. reflection about learning is an exercise that promotes life-long learning (including that among future lawyers). a reflection about context and experience is the first step for future professional action. the benefits of experiencing autonomy and reflection are the same in a real or in realistic environments. but the experience of responsibility requires a real environment. 1 legal clinic for social justice, human rights institute (idh.uv.es), universitat de valència. (www.uv.es/clinica) e-mail: garciaj@uv.es. ( special issue problematising assessment in clinical legal education ) ( 48 ) 1. introduction assessment, supervision, giving feedback, and (non) directiveness have been identified as perpetual challenges for new and experienced legal clinicians alike (dunlap, 2004:60 and 61). indeed, accurate assessment of the process of learning is in and of itself a complex task. the ideas and comments presented in this article derive from the experience and practice not only in our clinic2 but also from other “traditional” courses in which i have used experiential learning methods3: basic legal skills4 and legal ethics 5. 2 in our clinics we use a problem based learning methodology, as a part of our training program at the beginning of each term, and at the same time the students work with real cases. legal clinic for social justice, universitat de valència (www.uv.es/clinica). the legal clinic for social justice is a university project running from 2006 at the school of law in the university of valencia. (www.uv.es/clinica), recognized as an educational innovation project and a consolidated group for innovative teaching. in this academic year (2014-2015) we have around 50 students, 3 pro bono lawyers and 30 professors supervising from 9 different areas of law. we develop a variety of activities and methodologies across five different clinics: penitentiary clinic, public interest law clinic, private interest law clinic, migration and foreigners’ rights clinic, and international human rights clinic. we work in several areas (disabled people, prisons, human rights, migration...) giving advise and support to ngos, organizations, associations and non-profit entities. our students learn through clinics as a part of compulsory credits in the law degree, criminology degree, double degree in law and business, and the master degree on human rights. we have volunteers too. the aim of the legal clinic is to train law students with real cases. students provide free legal advice under the supervision of teachers and professionals connected to the university. students provide assistance with legal research, drafting legal arguments, and meeting with clients. previously they have been trained in client interviewing exercises, simulations, research, drafting, legal ethics and professionalism and other contents not developed in the curricula. 3 i have used a problem based learning methodology based on font ribas 2004, 2009, 2013 and grimes, 2013. 4 legal skills is a basic course of first year in the law degree with a load of 6 ects (european credit transfer system). the course aims to introduce students to university life from a legal point of view it provides tools that can help to study law and to work with the law: legal research, oral skills, writing skills... the subject is an approach or introduction to the legal methods and the fundamental legal skills that can be developed in the years of degree and post-graduate studies and that will be used in the professional or academic life. since 2013-2014 i use a problem based learning methodology to teach. 5 legal ethics in the criminal justice program and in the undergraduate criminology degree. it is a legal ethics mandatory course of 4.5 ects (european credit transfer system) for private detectives in the criminology degree. i have taught these courses using different active while it will be described in greater detail later, it should be noted at the outset that our approach to assessment is based on several methods: (1) supervision (giving feedback, advising and assessing), (2) weekly reflective journals using portfolios in a virtual platform (reflective learning and self-assessment), and (3) monthly rounds (peer assessment). this means that we apply several different approaches in assessing: self-assessment, peer-assessment, team-assessment, and (external) assessment. our goal is to promote responsibility through experience and reflective learning not only as a skill but also as a tool for lifelong learning. at the same time, we use rubrics6 as grading tools to ensure that standards of performance are based on concrete, objective, and well-defined competences/learning outcomes. as a starting point, in our view, clinical legal education (cle) should be defined as a space of active learning, in which law students’ training experience is designed and planned, in a real or realistic context, in such a way that they are able to take responsibility for the outcomes of their learning through a process of reflection (garcía-añón, 2014a, 2014b). whereas the real context is developed in the clinic by working with real cases, a learning techniques: problem based learning, collaborative learning and creative writing (with micro-stories). however, last two years (since 2013-2014) i introduced a pure problem based learning methodology. 6 a rubric, as a “ a standard of performance for a defined population”, is a scoring tool that lists the criteria for a piece of work, articulates the expectations for an assignment and describes its levels of quality. (andrade, 1997). see http://rubistar.4teachers.org realistic context is developed in the other courses (basic legal skills and legal ethics) or in the first stage of clinical training using problem based learning methods of teaching. if we focus on the general scope of our inquiry, we have to answer the question: why assess? the obvious answer should be to know what students are learning; however, the reality is that most of us have in mind assessment which is not centred on the student’s learning, but rather on institutional goals. in my opinion, this is part of the problem that i’ll try to explain. we are going to start from the following premises: first, assessment cannot be reduced to institutional assessment; and second, a competence approach of learning better reflects the connection between learning and assessing. if we were asked about what the nature and (implied) purpose of that assessment is, the answer should be to understand assessment of learning. institutional assessment (that is, to certify a level of knowledge) must be distinguished from assessment for learning (that is, whether the student really learns). traditionally, assessment is reduced to institutional assessment: that is, to give a mark depending on the achievement of knowledge instead of focusing on student’s learning. as it is said: “… assessment is not merely a measurement problem, as the vast literature on reliability and validity seems to suggest, but that it is also very much an instructional design problem and includes educational, implementation and resources aspects.” (van der vleuten & schuwirth, 2005:309) but we don’t have, as law professors, strong evidence about what the relationship between learning and assessment is. in fact, in our years of experience teaching by using traditional methods and preparing exams, it is our conviction that we are not doing things in the wrong way, although other alternatives in teaching and assessing exist. a second premise is that a competence approach of learning better reflects the connection between learning and assessing and provides for more effective learning. learning is improved when all tasks are integrated: “… this ‘wholetask’ approach is reflected in the current competency movement. a competency is the ability to handle a complex professional task by integrating the relevant cognitive, psychomotor and affective skills. in educational practice we now see curricula being built around such competencies or outcomes.” (van der vleuten & schuwirth, 2005:312-313)7. that is, learning is better-served when there is an alignment between learning outcomes, teaching activities and assessment. as it is stated by biggs in his theory of constructive alignment: “when there is alignment between what we want, how we teach and how we assess, teaching is likely to be much more effective than when it is not (aligned)... traditional transmission theories of teaching ignore alignment.”(biggs, 2003) or, put in another way: “the best teaching practices include regular assessments that are carefully tied to clearly 7 “competence for the purposes of this report has been defined primarily as the cluster of knowledge, skills and attributes necessary for a person to function effectively in a legal role.”(webb et al, 2013:274) articulated teaching goals.” (barry et al 2008: 226; stuckey, r. et alter, 2007, pp. 235-264). if this is the point, we should focus on how we learn. and according to the level of learning that we intend to foster, we should propose a corresponding kind of assessment. and “…choosing an assessment method inevitably entails compromises and that the type of compromise varies for each specific assessment context.” (van der vleuten & schuwirth, 2005:310). it is not only important to decide what the learning objectives and learning outcomes of a course and its design are, taking into account abstract levels/areas of knowledge in the process of learning, but also their relationship with the methods of teaching used and their evaluation. i think this is a training process in which professors and supervisors of our clinics have participated--thinking about and designing the main learning outcomes, the learning activities and the assessment rubrics. for this reason, in cle, as in other parts of the curricula: 1) (formative) assessment is part of learning, 2) and reflective learning (and reflective skills) is/are a part of assessment. only to clarify concepts, it should be mentioned that formative assessment is a systematic and systematized reflection that aims to improve student learning: “it has been described as assessment that “refers to all those activities undertaken by teachers, and by the students in assessing themselves, which provide information to be used as feedback to modify the teaching and learning activities in which they are engaged” (black and williams, 1998).” (kennedy, 2007:20) to explain what assessment is implies discussing the different interlinked aspects: validity, reliability and fairness (letr, 2013:4.123), all connected to questions that must be answered: when is the assessment considered valid…? how do we assess…? what do we assess…? first, the question, when is the assessment considered valid…? this refers to the aspect of validity. that is, it must be capable of assessing that which it sets out to assess. the problems to be discussed focus on the dilemma of the assessment’s context: what are the best conditions for doing assessment. for example, a controlled place through simulations, or the experiences of the real world. second, the question about how do we assess…? this refers to the aspect of reliability. that is, the assessment must produce consistent and replicable results. the problems are related to the objectivity/subjectivity standards or the (lack of) consistency of results. third, the question stated is what do we assess…? this refers to the aspect of fairness treatment. that is, it must assess against the syllabus and learning outcomes that have been set out, as well as the problems that are related to the (lack of) transparency or the clarity of outcomes. aspect problem/dilemma proposal scope of assessment to know what students are learning why assess? institutional assessment/student’s learning assessment no reduction to institutional assessment. provide the possibility of reflection about learning. validity authenticity and realism. it must be capable of assessing that which is set out to assess when is the assessment considered valid…? real environment/ realistic environment (real world, simulations…) direct assessment? provide scenes for responsibility/autonomy link learning outcomes with what the learner should be able to do at higher and complex stages of learning. reliability it must produce consistent and replicable results how do we assess…? objectivity/subjectivity standards reproducibility of scores? use methods of assessment focused on the student’s learning and give the possibility of reflection about learning. (lack of) consistency variation in assessment methods and practices. sampling: quantitative and qualitative information. fairness it must assess against the syllabus and learning outcomes that have been set out what do we assess…? +(lack of) transparency rubrics with clear learning outcomes and performances to be achieved provide trust below, i will try to develop some of these aspects introducing why reflective learning is needed as part of this process of assessment. 2. validity: when is the assessment considered valid? in cle if we have to assess that which we set out to assess, we should do so in a real environment. some clinics around the world do it, others do not. and some academics discuss that legal clinics should be developed only with real cases and clients (for example, wilson 2004). as van der vleuten & schuwirth explain, it is not important if the assessment is developed in the real world or with simulations… (van der vleuten & schuwirth, 2005:312) even though the setting is not (entirely) significant, it is important to create a situation in which the student becomes autonomous and responsible. but in cle, the final goal should be learning with real clients. in this sense, learning with simulations should be a preliminary step in training with real cases. for this reason, what matters is linking learning objectives as concrete elements of what is required at any stage of the formation. miller’s pyramid of assessment provides a framework for assessing clinical competence in education and can assist clinical teachers in matching learning outcomes (clinical competencies) with expectations of what the learner should be able to do at any stage. cle provides opportunities for performing the skills and competencies required to be a lawyer. in fact, in the 30s, in the legal realist challenge to the case method and formalism tradition, jerome frank said that it was important to understand the “atmosphere of a case” or “cases as living processes” vs. the case method because “the practice of law and the deciding of cases constitute not sciences but arts -the art of the lawyer and the art of the judge. only a slight part of any art can be learned from books. whether it be painting or writing or practicing law, the best kind of education in an art is usually through apprentice-training under the supervision of men some of whom have themselves become skilled in the actual practice of the art.” (frank, 1933a:923) we are interested in his emphasis of the importance of lawyering tasks as a part of how students should learn law and how “the law school would resemble a sort of sublimated law office” (frank, 1933b:723-724). moreover, the development of the cle movement from the 1960s onward focuses on the connection between learning and the provision of a service to society (spiegel, 1987: 589-590). this activity can hardly be achieved without a connection with reality, and with the needs borne out of the difficulties of accessing justice. for this reason, cle “seeks to relate the teaching of legal skills to the social justice issues that law students experience through dealing with indigent and marginalized clients” (mcquoid-mason, 2008:2; mcquoid-mason et al, 2011:23) and “to make students socially aware of the problems faced by poor people in society and how these can be addressed.” (mcquoid-mason & palmer, 2013:81) 3. reliability: how do we assess? methods of assessment(s) in cle reliability means that assessment methods must produce consistent and replicable results. it is true that no method has an inherent or immutable value: “the degree to which the various quality criteria are attained is not an inherent, immutable characteristic of a particular instrument. (…) there is no such thing as the reliability, the validity, or any other absolute, immanent characteristic of any assessment instrument.” (van der vleuten & schuwirth, 2005:310, 312) that is, objectivity is one sort of influence in the measurement because some subjective exams could be reliable too. so what is needed is the use of methods of assessment focused on the student’s learning and that give the possibility of reflection about learning. first, this means to provide space(s) and time(s) to reflect about learning (as a way of learning and as a skill to be acquired) in real or realistic contexts and provide tools for transparency in the discussion about learning. and although objectivity and subjectivity are not the point of discussion, to develop reliability it must imply to develop public possibilities to discuss about the learning got. second, it means to use methods of assessment focused on the student’s learning and that give them the possibility of reflection on learning. and third, from the point of view of the professor, it implies multiplicity of assessments or reflections about learning. various sources of information or evidence of learning are necessary to evaluate complex competencies: “…assessment … complex competencies… requires quantitative and qualitative information from different sources as well as professional judgement.” (van der vleuten & schuwirth, 2005:309) as has been noted, our experiences about assessment are based on several methods: supervision (giving feedback, advising and assessing 8 ), weekly reflective journals using portfolios in a virtual platform (reflective learning and self-assessment) and monthly rounds (peer assessment). that includes selfassessment, peer-assessment, team-assessment, and (external) assessment9. the use of a reflective journal as portfolio is the main tool we use as a part of the continuous assessment10. the portfolio is a weekly individual report to be uploaded in the virtual classroom platform. the content of this report is, first, a description of the activities that the student has done that week in this subject (in class and outside class). all of them are evidence of a student’s learning that must be shown at the end of the term. second, it must include the report done by the team on the delivered scenario they have been working on or the activities carried out in the clinic. and third, a reflection and assessment of everything the student has learnt or thinks that he has to learn. it must include 8 it is true that engaging in formative assessment in clinical practice with a genuine impact on learning is complex. it is shown that the factors to be taken into account are individual perspectives on feedback, a supportive learning environment and credibility of feedback. (dijksterhuis et al, 2013) 9 in the health domain you can see the same kind of experiences in schuwirth et l, 2011; van der vleuten et al, 2012; and van der vleuten et al, 2015. it is shown in the “programmatic assessment” as an integral approach that maximization of learning is achieved with the aggregation of several methods of assessment including the value of feedback. 10 "journal writing provides a space for personal, declarative discourse that is stifled in most law school writing assignments. the second contribution that journals can make is to help the law student to maintain a sense of self throughout the process of professional socialization that takes place in law school. by using the journal to relate the values that she brought to law school to the methods and materials of law study, the student can appropriately evaluate what is being taught and learned. journals provide a space for students to work through how they feel about the roles that they are asked to assume in the law school, whether in the traditional classroom of the clinic.” (ogilvy, 1996:81) the problems and difficulties found in this process. for this reason, a portfolio designed as a “programmatic assessment” of an integrated clinical placement, as proposed by van der vleuten & schuwirth (2005, 2011) has sufficient evidence of validity to support a specific interpretation of student scores around passing a clinical placement, although with some modest precision in some competencies that could be reduced focussing more on feedback and supervision. (roberts et al, 2014) additionally, each month we hold a “round” in which students talk and discuss their cases together, and show the problems they had, including ethical issues. rounds in law clinics are meetings in which all the students discuss their real work with their classmates and professors. participants exchange information about what they have done, discuss issues they are working through, identify next steps, and ask their classmates for assistance in thinking through the issues in the scenario. 4. fairness. what do we assess…? rubrics in cle the third question was about what do we assess…? it refers to the aspect of fair treatment. it must assess against the syllabus and learning outcomes that have been previously set out, as well as the problems related to the (lack of) transparency of these tools. learning outcomes specify the minimum acceptable standard to enable a student to pass a module. grading criteria are statements that indicate what a student must demonstrate to achieve a higher grade. these statements help to differentiate the levels of performance of a student. by making these criteria clear to students, it is hoped that students will aim for the highest levels of performance. for us, the use of general rubrics previously published is a good tool for students and professors. students don’t usually know what their performance levels are. they only want to know what has to be written in a final exam. with the rubrics and samples provided they could know what is expected of them in the activities that require different levels of performance and that cannot be “measured” in an exam. in the case of professors, we use rubrics for two reasons. first, to avoid a complete “subjectivity” in the assessment and as a tool that lets to justify and to give reasons about a decision. and second, in supervising tasks we work with professors of different departments and styles, and a common base that shows a fair treatment to the students is needed. it should be shown as a minimum of what is intended. 5. conclusions it is not decisive if the assessment is developed in the real world or with simulations… however, it is important to create a situation in which the student becomes autonomous and responsible. in cle the final goal should be learning with real clients, so learning with simulations should be a preliminary step in training with real cases. various sources of information or evidence of learning are necessary to evaluate complex competencies. our experiences about assessment are based on several methods: supervision (giving feedback, advising and assessing), weekly reflective journals using portfolios in a virtual platform (reflective learning and self-assessment) and monthly rounds (peer assessment). that includes selfassessment, peer-assessment, team-assessment, and (external) assessment. the problem based learning method, combined with others, benefits an effective learning in an interactive environment and "it is based on constant feedback to the student." (font, 2013) benefits of the experience of autonomy and reflection are the same in a real or in realistic environments. however, the experience of responsibility requires a real environment. students complain about the lack of a “text-book” to consult and see all the contents of each part of programme. but, at the same time, they recognize they are putting in practice most of the theoretical contents they have studied in other subjects. with this method law is “integrative”: you can analyse and define what the problems are, as well as links with legal institutions or legal subjects, because most of the problems can include different perspectives of law and permit different ways to solve them. through the process of reflection about learning students become aware of what they have learned and do this from the first moment: a) they are working with all the tools needed and all parts of syllabus, b) they are learning from their mistakes, c) they are reflecting about the learning. and reflection about learning is an exercise for life-long learning. the use of rubrics is a good tool for students to understand what the highest levels of performance are. for professors rubrics are a common base, a minimum of what is intended. by these reasons the described methods of assessment and the “programmatic assessment of performance” provide a more valid, reliable and fair tools for learning than traditional methods. references andrade, h. g. (1997). “understanding rubrics”, educational leadership, 54(4), 14-17. biggs, j. (2003). aligning teaching and assessing to course objectives. teaching and learning in higher education: new trends and innovations. university of aveiro, april 2003. dijksterhuis, m., schuwirth, l. w. t., et al (2013), “a qualitative study on trainees' and supervisors' perceptions of assessment for learning in postgraduate medical education”, medical teacher, 35(8), 1396-1402 dunlap, j.a. & joy, p.a., “reflection-in-action: designing new clinical teacher training by using lessons learned from new clinicians”, clinical law review, vol.11, 2004 :49-113 http://scholarship.law.umassd.edu/cgi/viewcontent.cgi?article=1070&context=fac_pubs font ribas, antoni: “líneas maestras en el aprendizaje por problemas”, revista interuniversitaria de formación del profesorado, nº 49, 2004 (ejemplar dedicado a: el reto del espacio europeo de educación superior) :79-96 http://www.redalyc.org/articulo.oa?id=27418106 font ribas, antoni: “aprendizaje basado en problemas en la facultad de derecho de la universidad de barcelona”, en buenas prácticas en docencia y política universitaria, coord. carmen vizcarro guarch, universidad de castilla-la mancha servicio de publicaciones, 2009 :113-134 font ribas, antoni: “la incidencia del aprendizaje basado en problemas (abp) en la integración laboral de los licenciados en derecho”, revista de derecho mercantil, 2013 :237-284. frank, jerome (1933a), 'why not a clinical lawyer-school?', 81 university of pennsylvania law review, vol. 81, 1933 :907-923 http://digitalcommons.law.yale.edu/fss_papers/4109 frank, jerome (1933b), “a national bar program subject: what constitutes a good legal education?”, american bar association journal vol. 19, no. 12 (december, 1933) :723-728 garcía-añón, j. (2014a), “transformaciones en la docencia y el aprendizaje del derecho: ¿la educación jurídica clínica como elemento transformador?”, teoría y derecho. revista de pensamiento jurídico, nº 15, 2014, pp. 12-33 garcía-añón, j. (2014b), “la integración de la educación jurídica clínica en el proceso formativo de los juristas” redu. revista de docencia universitaria, número extraordinario “formación de los licenciados en derecho”, 2014, 12 (3),153175 http://red-u.net/redu/index.php/redu/article/view/867 grimes, richard; “clinical legal education and problem-based learning: an integrated approach to study fit for purpose?”, en jose garcía añón (editor), transformaciones en la docencia y el aprendizaje del derecho. actas del quinto congreso nacional de docencia en ciencias jurídicas. valencia, 11-13 de septiembre de 2013, unitat d’innovació educativa, facultat de dret, universitat de valència :291331 www.uv.es/innodret/pub/2013actas_congreso.pdf kennedy, declan; hyland, a.; y ryan, n.; writing and using learning outcomes. a practical guide, quality promotion unit, university college cork, 2007. http://sss.dcu.ie/afi/docs/bologna/writing_and_using_learning_outcomes.pdf mcquoid-mason, david j., law clinics at african universities: an overview of the service, delivery component with passing references to experiences in south and south-east asia, journal of juridical sciences, 9, 2008. mcquoid-mason, david j.; ernest ojukwu, y george mukundi wachira, “clinical legal education in africa. legal education and community service, the global clinical movement. educating lawyers for social justice, edited by frank s. bloch chapt. 2, oxford university press, 2011 :23-35 mcquoid-mason, david y robin palmer, african law clinicians’ manual, open society foundations/university of kwazulu-natal/institute for professional legal training, 2013. ogilvy, j.p.,"the use of journals in legal education: a tool for reflection", clinical law review, (1996-1997) 3, :55-107 roberts, c., shadbolt, n., clark, t. and simpson, p. (2014), “the reliability and validity of a portfolio designed as a programmatic assessment of performance in an integrated clinical placement”, bmc medical education, 14:197 http://www.biomedcentral.com/1472-6920/14/197 spiegel, mark "theory and practice in legal education: an essay on clinical legal education." ucla law review 34, (1987): 577-610. schuwirth, l. w., & van der vleuten, c. p. (2011). “programmatic assessment: from assessment of learning to assessment for learning”. medical teacher, 33(6), 478-485. van der vleuten, c. p. & schuwirth, l. w., (2005). “assessing professional competence: from methods to programmes“, medical education, 39: 309-317. van der vleuten, c. p. m., schuwirth, l. w. t., driessen, e. w., dijkstra, j., tigelaar, d., baartman, l. k. j., & van tartwijk, j. (2012). “a model for programmatic assessment fit for purpose”, medical teacher, 34(3), 205-214. webb, j; ching, j; maharg p. y a. sherr (2013); setting standards: the future of legal services education and training regulation in england and wales (london: legal education and training review, 2013). http://letr.org.uk/the-report/index.html wilson, richard j., “ten practical steps to organization and operation of a law school clinic” (february 1, 2004). available at ssrn: http://ssrn.com/abstract=2465038 or http://dx.doi.org/10.2139/ssrn.2465038 reviewed article 5 preparing students for 21st century practice: enhancing social justice teaching in clinical legal education dr jacqueline weinberg, monash university, australia * abstract social justice has always played an important role in clinical legal education (cle).1 clinicians are aware that students need to acquire the necessary legal skills and strategies related to client-centred lawyering, process choice and procedural justice. this paper shows that increasingly, despite clinicians’ recognition of the value of teaching social justice in cle, those who promote it face various challenges in instilling in students the notion that social justice is important. this paper discusses some of these challenges, including, that as experiential education expands, students are being offered clinical placements in the private sector where clients do not face the barriers in accessing justice similar to those in community settings. it therefore becomes imperative to encourage students to retain the notion that social justice is an important value. this paper makes suggestions for how these challenges can be * dr jacqueline weinberg is a lecturer in the faculty of law, monash university. 1 refer to adrian evans et al, best practices: australian clinical legal education (report for office of teaching and learning, 2013). see also weinberg, jacqueline, ‘keeping up with change: no alternative to teaching adr in clinic. an australian perspective’ (2018) international journal of clinical legal education 1. reviewed article 6 overcome to enhance students’ awareness of the importance of social justice and ensure that it remains a value they retain as 21st century practitioners. introduction students undertake cle to learn what lawyers do in practice.2 students engage with real-life clients and manage their matters, learning practical legal skills under the supervision of qualified legal practitioners (‘clinical supervisors’).3 students learn about the various technical, ethical and procedural obligations with which lawyers must comply. notably, the value of law clinics extends well beyond their pedagogical function; these clinics play a vital role in the advancement of access to justice, as they serve disadvantaged and marginalised members of the community who could not otherwise afford a lawyer. during their placements at law clinics, students are encouraged to reflect critically on the nature and meaning of access to justice, including how and why it is constrained and how it might be fostered. students are guided to develop the skills and strategies that are fundamental to their ability to manage clients and establish trusting lawyer–client relationships, all of which are essential to their future careers as legal practitioners with a ‘justice’ focus. 2 adrian evans et al (n 1). 3 adrian evans et al (n 1). see also jeff giddings, promoting justice through clinical legal education (justice press, 2013). reviewed article 7 this paper argues that retaining a social justice mission in cle has become challenging for clinicians today. these challenges arise for various reasons, including that experiential learning in law schools has expanded into the private sector, where clients do not face barriers to accessing justice similar to community contexts. as such, it becomes more difficult to instil in students the notion that social justice is an important value to retain. also, students’ interests in employability has lead them to focus on seeking work in the private sector with the risk that they develop the notion that social justice is no longer a value they need to aspire to. this paper argues that despite these challenges, social justice teaching remains an important component of cle. as such, clinicians need to focus consciously on this teaching. this paper discusses some of the best-practice protocols and methods that can be used to enhance social justice teaching in cle so that students develop a deep understanding of social justice, which in turn will strengthen their ability to manage client matters and enhance their lawyer–client relationships in their future legal practice. this paper begins by providing context for social justice teaching in cle. it then goes on to define the concept of social justice, which is essential to better teach students the notion of ‘justice readiness’. reviewed article 8 social justice teaching in cle a longstanding relationship exists between cle and social justice, both nationally and internationally.4 as mckeown and hall state, ‘cle has a long and persistent tradition of seeing the formation of “social justice” clinicians as a principal educational goal’.5 since its inception, cle has established the dual foci of providing access to justice to disenfranchised members of the community and teaching law students practical legal skills.6 the primary aim of cle is for students to engage in clinical work while being educated about the practical function of the law.7 cle enables students to experience the practice of law and thus gain an appreciation of how it functions in a real-world setting.8 students’ involvement in the legal process is intended to help them develop practical legal skills, including critical and analytical thinking, ethical conduct, social values and responsibility.9 these skills encompass several aspects that are captured under the umbrella term ‘social justice’.10 4 paul mckeown and elaine hall, ‘if we could instil social justice values through cl, should we?’ (2018) 5(1) journal of international and comparative law 143. see also frank bloch (ed), the global clinical movement: educating lawyers for social justice (oxford university press, 2011). 5 paul mckeown and elaine hall, ‘if we could instil social justice values through cl, should we?’ (2018) 5(1) journal of international and comparative law 143. see also frank bloch (ed), the global clinical movement: educating lawyers for social justice (oxford university press, 2011). 6 mckeown and hall (n 4). see also frank bloch and mrk prasad, ‘institutionalising a social justice mission for clinical legal education: cross-national currents from india and the united states’ (2006) 13 clinical law review 165. 7 ibid. 8 refer to evans et al (n 1). 9 ibid. 10 ibid. see also deborah rhode, ‘pro bono in principle and in practice’ (2003) 53(3) journal of legal education 413; david singo, ‘clinical legal education and social justice—a perspective from the wits law clinic’ (2018) 2 stellenbosch law review 295; chris ashford and paul mckeown (eds), social justice and legal education (cambridge scholars, 2018). reviewed article 9 south african clinical academic, david singo, suggests that clinical aims and learning outcomes should be designed to accommodate this approach.11 however, singo warns that although clinicians often argue that social justice, as a concept, cannot be divorced from the clinical teaching methodology and is an inherent by-product of cle programs, it is not enough to make vague averments that clinics and cle play a role in social justice.12 rather, social justice must be specifically and overtly incorporated into and made a learning outcome of cle programs.13 byron supports this notion, suggesting that clinics perpetuate a learning environment in which law students either acquire or fail to acquire essential social justice teaching.14 to prevent the latter circumstance, clinicians need to ensure that the cle program involves social justice teaching.15 this must be done ‘at curriculum planning level together with the formulation of educational objectives and learning outcomes of both the law school or faculty and the cle program’.16 before social justice teaching can be included in the clinic curriculum, it is important to ensure that clinicians have a clear understanding of what social justice means. 11 david singo, ‘clinical legal education and social justice—a perspective from the wits law clinic’ (2018) 2 stellenbosch law review 295 12 singo (n 11). 13 ibid. see also spencer rand, ‘teaching law students to practice social justice: an interdisciplinary search for help through social work’s empowerment approach’ (2006) 13 clinical law review 463. 14 ip byron, ‘the relationship between social justice and clinical legal education: a case study of the women’s law clinic, faculty of law, university of ibadan, nigeria’ (2014) 20 international journal of clinical legal education 568. see also ya vawda, ‘learning from experience: the art and science of clinical law’ (2004) 29(1) journal of juridical science 131. 15 ibid. see also stephen wizner, ‘is social justice still relevant’ (2012) 32(2) boston college journal of law & social justice 345. 16 ibid 568. reviewed article 10 definitions of social justice given that the central aim of cle is to instil social justice awareness in students, there is a need for clarity as to what social justice means.17 however, defining the term ‘justice’ and clarifying the concept ‘social justice’ with absolute authority may be an impossible task.18 singo argues that ‘it is equally impossible for a clinician to teach law students meaningful lessons regarding social justice without clear understanding of what the term and concept entail’.19 it is thus necessary to identify distinguishable elements of social justice with as much clarity as possible to formulate a definition.20 when reviewing definitions of social justice, it is clear that this term is a debated concept that is applied differently in different contexts.21 there are many perspectives of social justice. in the south african context, macquoid-mason defines social justice as ‘the fair distribution of health, housing, wealth, education, and legal resources on an affirmative action basis to disadvantaged members of the community’.22 byron further suggests that social justice adheres to ‘the natural law that all persons, irrespective of ethnic origin, race or religion are to be treated equally and without 17 singo (n 11) at 304. 18 ibid. 19 ibid 309. 20 ibid. 21 ibid. also refer to evans et al (n 1) 98. 22 david mcquoid-mason, ‘teaching social justice to law students through clinical legal education and community service: a south african experience’ in mutaz qafisheh and stephen rosenbaum (eds), experimental legal education in a globalised world: the middle east and beyond (cambridge scholars, 2016). reviewed article 11 prejudice’.23 singo describes social justice as a ‘system of values and conscientiousness, predicated on an innate sense of justice, which enjoins every socially responsible person to take positive action for the betterment of fellow human beings and society at large’.24 singo stresses that the ultimate aim is ‘to attain a basic set of entitlements for all people, which at the very least must include human dignity, freedom, equality, and justice for all members of society’.25 in the us, lawton posits that social justice is often viewed as a ‘code for socialism and as antithetical to classical liberal ideas of individual liberty’.26 social justice is viewed as ‘normative’, which suggests that ‘laws and policies should be designed so as to create a just and equitable society’.27 bellow and kettleson hold the view that a public interest lawyer as ‘an attorney who provides subsidised legal services, on a full-or almost full-time basis, to those who would otherwise be underor unrepresented’.28 similarly, solorzano and yosso believe that advocating for social justice means 23 byron (n 14) 567. 24 singo (n 11) 302. 25 ibid. 26 julia lawton, ‘the imposition of social justice morality in legal education’ (2016) 4 indiana journal of law and social equality 57. 27 ibid 58. 28 gary bellow and jeanne kettleson, ‘from ethics to politics: confronting scarcity and fairness in public interest practice in lawyer’s ethics and the pursuit of social justice’ in susan d carle (ed), lawyers ethics and the pursuit of social justice (new york university press, 2005). see also michelle s jacobs, ‘pro bono work and access to justice for the poor: real change or imagined change’? 48 florida law review 509. reviewed article 12 ‘transforming the system by changing the structures of the system, which disempower underrepresented minority groups’.29 according to evans et al., in australia, the idea of social justice is ‘comfortably accepted as a legitimate progressive social policy position’. there is a general, contemporary idea of social justice as: the provision to all people of basic human needs including income, housing, education and health care; equal enjoyment of human rights, including nondiscrimination, freedom of expression and movement, the right to liberty and the right to live free from violence; and some redistribution of resources to maximise the position of the worst-off.30 whatever definition of social justice one adopts, certain distinguishable elements are evident: equality, human dignity, freedom, basic education, healthcare and justice. the notion that society should redistribute wealth and accept some responsibility for the wellbeing of disadvantaged members of society is also fundamental to any such definition.31 further, social justice means that able members of society should challenge political, economic, societal, legal and other structures that oppress the less 29 daniel solorzano and tara yosso, ‘maintaining social justice hopes within academic realities: a freirean approach to critical race/latcrit pedagogy’ (2000) 78(4) denver university law review 595. 30 evans et al (n 1) 98. 31 ibid. reviewed article 13 advantaged.32 as singo states, ‘any definition of social justice would therefore need to incorporate at least the aforementioned elemental factors’.33 cle and community legal centres the longstanding association between cle and community legal centres (clcs) has contributed to the notion that social justice has its origins in the fight against poverty, injustice and the underrepresentation of minority interests in the legal process. 34 clinics fit well within clcs, as clcs are ‘committed to striving for equitable access to the legal system and justice, and the equal protection of human rights’.35 three essential aspects of clc work are the provision of legal advice and the conduct of casework for disadvantaged clients and communities, the provision of community legal education, and the promotion of law and policy reform. 36 clcs mostly provide legal assistance with tenancy, credit and debt, administrative law, social security, criminal law, family law and domestic violence matters.37 students practising in legal clinics associated with clcs are exposed to the law as it affects disadvantaged clients. these clinics take a holistic and interdisciplinary approach to understanding clients’ 32 ibid. 33 singo (n 11) 300. 34 see jeremy cooper and louise trubek, ‘social values from law school to practice: an introductory essay’ in jeremy cooper and louise trubek (eds), educating for justice: social values and legal education (ashgate, 1997) 5. see also alicia alvarez, ‘community development clinics: what does poverty have to do with them?’ (2007) 34 fordham urban law journal 1269. 35 ibid. 36 ibid. 37 ibid. see also national association of community legal centres australia, annual report 2012/13 (web page, 2016) <perma.cc/9w9h-76kl>. reviewed article 14 legal problems, whereby several professionals (from social workers to business advisors) help clients to achieve their goals. 38 teaching students within the community context encourages them to think critically about the role of law in society and how it can be used to further social justice.39 walsh adopts the view that cle programs are one of the primary forums in which social awareness among students can be promoted. 40 walsh notes that cle exposes students to people facing challenges, and students come to learn of the ‘multiple layers of disadvantage faced by these people, including non-legal ones’. 41 by working with and taking responsibility for disadvantaged clients in cle programs, students may begin to feel socially responsible for disadvantaged people in general.42 walsh further notes that cle introduces students to ‘role model public interest lawyers and provides students with proof that they are able to use their knowledge to promote social justice, and to assist those in need’. 43 38 see anna cody and barbara schatz, ‘community law clinics: teaching students, working with disadvantaged communities’ in frank bloch (ed), the global clinical movement: educating lawyers for social justice (oxford university press, 2011) 167. 39 ibid 168. 40 tamara walsh, ‘putting justice back into legal education’ (2007) 17(1–2) legal education review 119. 41 ibid 121. see also irene styles and archie zariski, ‘law clinics and the promotion of public interest lawyering’ (2001) 19 law in context 65. 42 walsh (n 40). see also stephen wizner, ‘beyond skills training’ (2001) 7 clinical law review 327. 43 walsh (n 40). see also irene styles and archie zariski, ‘law clinics and the promotion of public interest lawyering’ (2001) 19 law in context 65. reviewed article 15 although the nature of the relationship between cle and community settings has meant that social justice has commonly been viewed within the context of the economically disadvantaged members of society; it has become apparent this context might need to be broadened. some students may practice in private settings, where clients do not face the obstacles to accessing legal service that are prevalent in community settings. it becomes a challenge then to ensure that such students are still aware of the value of applying a social justice approach to their practice. challenges of social justice teaching historically, both in australia and worldwide, cle has required students to engage in live-client experiential learning by providing pro bono legal services to low-income clients.44 in the us, law schools have invested heavily in instilling a ‘social justice morality’ in their students.45 lawton notes that they have done so in their ‘pro bono requirements’,46 ‘experiential learning opportunities’47 and by providing more funding to students working in the public interest than to those working in business 44 refer to richard grimes, ‘legal literacy, community empowerment and law schools—some lessons from a working model in the uk’ (2003) 37 law teacher 273; paul bergman, ‘reflections on us clinical education’ (2003) 10(1) international journal of the legal profession 109; peggy maisel, ‘expanding and sustaining clinical legal education in developing countries: what we can learn from south africa’ (2007) 30(2) fordham international law journal 374; frank bloch and mary-anne noone, ‘legal aid origins of clinical legal education’ in frank bloch (ed), the global clinical movement: educating lawyers for social justice (oxford university press, 2011); jeff giddings, promoting justice through clinical legal education (justice press, 2013). 45 refer to peter joy, ‘political interference in clinical programs: lessons from the us experience’ (2005) 8 international journal of clinical legal education 83; lawton (n 26) 67. 46 lawton (n 26) 67. 47 ibid. reviewed article 16 disciplines.48 such investments appear to reflect law schools’ attempts ‘to convince law students of the validity of working in the public interest for social justice’.49 more recently, us law schools have recognised that they may need to revise the focus of their education mission from developing ‘legal thinkers’ to producing ‘job-ready’ graduates.50 similarly, in australia, a major review of higher education in 2008 and the government’s response to this review acknowledged the need for universities to prepare graduates for the world of work.51 experiential education in australia has traditionally involved students engaging in live-client clinics with a poverty law focus; however, more recently, there has been a growth in offerings such as externship clinical placement programs52 and work-integrated learning (wil),53 mostly in the private sector. in both externship placements and wil, students work in host 48 ibid. 49 ibid. 50 refer to david rigg, ‘embedding employability in assessment: searching for the balance between academic learning and skills development in law: a case study’ (2013) 47 the law teacher 404. 51 refer to denise bradley et al, review of australian higher education: final report (canberra, 2008); giddings, j. & weinberg, j. (2020). experiential legal education: stepping back to see the future. in c. denvir (ed.), modernising legal education (pp. 38–56). cambridge university press. 52 refer to evans et al (n 1) ch 2. evans et al refer to the term ‘externships’ to describe ‘the form of clinical legal education where individual students are placed in an independent legal practice, community legal centre, government agency or not-for-profit organisation’: at 56. 53 evans et al (n 1) refer to ‘work-integrated learning’ as ‘a curriculum design, which combines formal learning with student exposure to real professional, work or other practice settings’: at 43. for a broader discussion on the program risks of wil, refer to craig cameron et al, ‘the program risks of work-integrated learning: a study of australian university lawyers’ (2018) 40(1) journal of higher education policy and management 67. see also janice orrell, good practice report: work-integrated learning (australian learning and teaching council, 2011); stephen billett, integrating practice-based experiences into higher education (springer, 2015). reviewed article 17 organisations to gain the knowledge, understanding and skills considered essential to workplace practices.54 due to the expansion of experiential learning in law schools and new clinical externship opportunities both nationally and internationally, students are being offered a variety of clinical placements in community contexts and the private sector. students can choose to participate in clinics at which they will perform pro bono legal services with a social justice focus or in the private sector. notably, clients in the private sector do not generally face the same barriers to accessing justice as those in community settings. students may choose externship placements in private settings for several reasons, including that they simply are not interested in engaging in social justice.55 after all, students have their own legitimate interests for attending law school;56 for example, they may wish to help the vulnerable and impoverished or to pursue careers in corporate law, providing legal services to the privileged.57 according to lawton, american law schools often accentuate this notion by creating a competitive environment in which the ‘best’ students are those who receive the ‘best’ grades and are offered the most coveted jobs in large private law firms.58 as lawton posits, ‘students cannot accept sole responsibility for these choices as law schools are 54 refer to evans et al (n 1). 55 refer to lawton (n 26) 70. 56 ibid. 57 ibid. 58 ibid. reviewed article 18 subtly perpetuating this preference for working in the private industry by focusing courses on individual needs rather than the public good’.59 it therefore appears that although clinical educators have long held the belief that the value of clinical experience for students is in the exposure they gain by interacting and engaging with social justice issues, the expansion of experiential education into the private setting has caused some academics to question whether a new perspective is needed. is a new perspective needed? lawton contends that clinicians should guard against ‘indoctrinating students’ or ‘imposing [their] social justice moralities on law students’.60 she cautions legal educators against ‘pushing students into a particular practice area based on the educators’ moralities’61 and notes that they should expand students’ ideas and train them to see context and recognise the need for perspective.62 similarly, mckeown and hall warn clinicians ‘not to impose [their] own moral perspective on [their] students but to provide students with the framework to critique the world in which they live and strive to develop their own moral position’.63 students should be offered opportunities for exposure to different areas of law ‘to determine for themselves their 59 ibid 71. 60 lawton (n 26) 73. 61 ibid. 62 ibid. 63 mckeown and hall (n 4) 179. reviewed article 19 morality and what role they want this morality to play in their professional lives’.64 this is arguably even more crucial with respect to courses on private law and the expansion of experiential learning in the private sector. kosuri argues that if increased experiential learning opportunities for students are a real objective of law schools, and clinics are viewed as ‘the pinnacle of those opportunities, then broadening the portfolio of clinical offerings to include those that are not focused on social justice should be a valid proposition’.65 kosuri stresses that law school clinics can no longer presume that a social justice mission (to represent the indigent and underrepresented about poverty law issues) is the only legitimate goal for clinic clients and matters;66 rather, leaders of clinical programs should accommodate different models of clinics, thereby expanding clinical education to more students and ‘unleashing the next phase of innovation and creativity in law school education’.67 clinical opportunities should be provided to every interested law student, and the notion that clinics are only for ‘public interest’ students or special factions of students should be abandoned.68 kosuri views the greatest contribution of cle as not merely ‘creating a haven for public interest-oriented law students or in promoting social justice causes, but rather in a methodology that teaches students how 64 ibid. 65 praveen kosuri, ‘losing my religion: the place of social justice in clinical legal education’ (2012) boston college journal of law and social justice 338. 66 ibid. 67 ibid 337. 68 ibid 338. reviewed article 20 to learn from experience, whatever that experience may be’.69 for example, in a ‘finance clinic’, students may represent businesses seeking to acquire early-stage investment from financial sponsors.70 kosuri acknowledges that this type of clinic is ‘devoid of traditional social justice issues’,71 but suggests that it could still be viewed as a ‘legitimate clinical offering providing students with a rich experience learning what motivates people and how to align interests to achieve a desired outcome’.72 kosuri is not advocating that social justice be removed from all clinics, but that there should be a more ‘expansive and inclusive view of what clinics can do for law students’.73 finally, kosuri adds that ‘clinicians should strive to provide a portfolio of opportunities that appeal to a wide array of students as more students are driven to clinics looking for competitive advantages when they enter the workforce’.74 not all scholars agree with kosuri’s view that certain clinical settings (e.g., externships and those with a more corporate focus) are ‘devoid’ of social justice considerations. clinical educators, like cole, have suggested that these clinics can still support a social justice mission for the following three reasons: 69 ibid. see also jeanne charn, ‘service and learning: reflections on three decades of the lawyering process at harvard law school’ (2003) 75 clinical law review 77–8; quintanilla et al, ‘experiential education and access-to-justice within u.s. law schools: designing and evaluating an access-tojustice-service learning program within the first-year curriculum’ (2019) 7(1) indiana journal of law and social equality 1. 70 kosuri (n 65) 338. 71 ibid. 72 ibid. 73 ibid. 74 ibid. reviewed article 21 first, many people experience the need for social justice on a daily basis. second, most law students enter law school open to the idea that part of being a lawyer is serving the public good. third, is the view held by most lawyers, law teachers, and law schools that a lawyer’s role is defined, at least in part, by his or her obligation to serve the public and work towards social justice.75 according to cole, it is the role of the supervising lawyer to commit to social justice and persuade students of the value and practicality of social justice work.76 horrigan takes this point further, suggesting not only that social justice considerations are central to corporate work, but also that lawyers have an obligation to consider the relationship between big business and poverty; they may even have an obligation to fight poverty.77 as horrigan states: 75 liz ryan cole, ‘a special focus to help understand and advance social justice’ in frank bloch (ed), the global clinical movement: educating lawyers for social justice (oxford university press, 2011) 327. see also jp ogilvy, leah wortham and lisa lerman (eds), learning from practice: a professional development text for legal externs (thomson/ west, 2007) 76 cole (n 88). 77 bryan horrigan, ‘the role of lawyers in steering corporate governance and responsibility towards addressing social injustice and inequality’ in pd maynard and n gold (eds), poverty, justice and the rule of law: report of the second phase of the iba presidential task force on the financial crisis (international bar association, 2013) 139. see also bryan horrigan, corporate social responsibility in the 21st-century: debates, models and practices across government, law and business (edward elgar, 2012). reviewed article 22 it is the role of the global legal profession to embrace action on poverty abroad and at home as an integral part of the profession’s own socio-ethical, professional and even legal responsibilities.78 horrigan views it as the responsibility of lawyers ‘to connect the threads between what lawyers and business enterprises do (or not do) and the endgame of alleviating and even eliminating poverty’.79 according to horrigan, there is no reason for private lawyers and other businesses not to care about ‘what happens to people afflicted by poverty’;80 rather, their focus should provide a ‘new lens’ that allows lawyers and others to ‘see some conventional aspects of their work in an unconventional perspective’.81 horrigan encourages lawyers to reframe their lawyerly roles and responsibilities in fighting poverty and use their roles in the public, private and community sectors to make a difference to poverty.82 this may include connecting their work as lawyers in areas of corporate governance and finance to make a difference to poverty alleviation.83 arguably, horrigan’s focus on fighting poverty aligns with the social justice ethos of cle. it follows that if lawyers in corporate and private legal settings adopt horrigan’s suggestions and reframe their roles, then students placed in these settings will benefit from exposure to the social justice 78 horrigan (n 77) 143. 79 ibid. 80 ibid. 81 ibid. 82 ibid. 83 ibid 144. reviewed article 23 mission. in such circumstances, clinicians with views similar to kosuri will have to reconsider whether a ‘finance clinic’ should (or actually can) be completely ‘devoid of traditional social justice issues’.84 having regard to these arguments and the challenges clinicians may face to the education of students about social justice, there are ways these obstacles can be overcome. while it may not be possible to expect all students to engage in clinical placements that are focused entirely on social justice nor that the lawyers with whom they engage will be attending to such issues, nonetheless, instilling in students the message that social justice is a system of values and a consciousness that is predicated on an innate sense of justice remains important. 85 social justice teaching remains important if social justice is to remain one of the central missions of cle, students should be encouraged to be value-driven or possess a sense of social justice regardless of where they receive their clinical teaching.86 the risk of not doing so is that students will fail to appreciate that social justice is important and assume that a social justice ethos is 84 kosuri (n 65) 331. 85 refer to singo (n 11) 302. see also bryan horrigan, ‘designing and implementing an enhanced clinical program in the age of disruption. part one: the environment for clinic’ (2019) 26(2) international journal of clinical legal education 75; bryan horrigan, ‘designing and implementing an enhanced clinical program in the age of disruption. part two: the environment for clinic’ (2020) international journal of clinical legal education 204. 86 singo (n 11). see also supporting social justice through student supervision practices’ in chris ashford & paul mckeown (eds), social justice and legal education, 2018, cambridge scholars publishing, 43-64. reviewed article 24 essentially an optional attribute. in law schools in which the curriculum focuses on corporate units (and other units lacking in social justice orientation), singo warns that there is a ‘tacit institutional discouragement for law students to pursue social justice ambitions’.87 this ultimately leads students to believe that a successful law graduate is someone who gains a position in a corporate and/or commercial private law firm rather than a law firm focusing on social justice issues.88 it follows that if social justice is to retain its prominence in clinical teaching, no matter whether students engage in poverty-focused live-client clinics or private law firms, they should be made aware that the values that underlie social justice are values that any legal practitioner (and responsible member of society) should possess.89 these are values that are essential for every socially responsible person to hold for the betterment of fellow human beings and society at large.90 students engaging in clinical programs need to be provided with opportunities to develop a sense of social responsibility and to recognise injustice in society and the legal system. byron supports this notion, suggesting: cle inculcates in students a sense of professionalism, a spirit of community lawyering and social justice. lawyers should see themselves as trustees of 87 ibid 310. 88 ibid. see also lawton (n 26). 89 singo (n 11). 90 ibid 302. reviewed article 25 justice. on them lies the fiduciary responsibility to see to it that the legal system provides, as far as is practically possible, justice for all citizens, not only for the rich and powerful. on the other hand, law teachers should realise that the students they teach will be advocates, judges, political persons and so they have a responsibility through their teaching to ensure their students commit to social justice.91 in this way students become justice ready (i.e., able to provide options for their clients to access justice).92 social justice teaching is aligned with preparing students for justice readiness. as aiken explains: everything a lawyer does has to do with justice or injustice, sometimes on the surface and sometimes in the background. justice is about doing, and clinicians are among the only faculty in law schools who teach students how to ‘do’ law. therefore, clinical faculty ought to pull back the curtain and reveal the injustice; they ought to teach within a context of justice, showing the effect that all lawyers have on society.93 91 byron (n 14) 567. 92 refer to jeremy cooper and louise trubek (eds), educating for justice: social values and legal education (ashgate 1997); stephen wizner and jane aiken, ‘teaching and doing: the role of law school clinics in enhancing access to justice’ (2004) 73 fordham law review 997; evans et al (n 3) 98. 93 jane aiken, ‘the clinical mission of justice readiness’ (2012) 32 boston college journal of law & social justice 233. reviewed article 26 aiken suggests that law schools need to do more than strive to teach students to be ‘practice ready’;94 but rather students need to be ‘justice ready’—to be aware of injustice and committed to fighting it in their legal careers.95 justice-ready graduates can recognise injustice and appropriately evaluate the consequences of their actions in a way that mere practice readiness does not teach.96 clinics must move students beyond being just practice ready and prepare them ‘to identify injustice when they see it and develop the skills and strategic thinking to remedy it’.97 clinicians must determine which skills and knowledge will improve students’ ability to identify injustice.98 further, they must develop and implement teaching interventions to ensure that students acquire these skills.99 as aiken concludes, ‘clinicians can help their students make a commitment to justice in their lives as lawyers. the tools just need to be refined’.100 within the clinical context, structured methods and models can be implemented to develop and maintain a more uniform approach to focus on issues of social justice. as supervision plays a crucial role in clinical teaching, an effective way to implement these methods and models is to support supervisors to focus on issues relating to access to justice and social justice. 94 ibid. 95 ibid 234. see also jane aiken, ‘provocateurs for justice’ (2001) 7 clinical law review 294. 96 aiken (n 93). 97 ibid 235. 98 ibid. 99 ibid. 100 ibid 236. reviewed article 27 the role of supervision in social justice teaching supervision is viewed as the cornerstone of best practice in cle.101 giddings posits that effective supervision is ‘integral to harnessing the rich learning potential of clinic experiences and as such plays a valuable role in providing students with a deeper understanding of social justice concepts and the complex nature of public policy debates’.102 clinics are particularly well suited to generating discussions relating to concepts such as fairness, justice, due process and ethical awareness.103 supervisors have a critical role in guiding students to understand the implications of the “disorienting moments” they encounter where a social justice-oriented clinical experience challenges student understandings, particularly the impact of laws on marginalised people.104 davys and beddoe identify the need to focus on supervision as a ‘reflective learning process rather than one of direction and audit’.105 according to these writers, supervision should involve a process of ‘teaching a way of thinking rather than teaching a set of techniques’.106 supervisors can use frameworks that 101 refer to jeff giddings, promoting justice through clinical legal education (justice press, 2013). see also jeff giddings, ‘the assumption of responsibility: supervision practices in experimental legal education’ in mutaz qafisheh and stephen rosenbaum (eds), global legal education approaches: special reference to the middle east (cambridge scholars, 2012). 102 jeff giddings, ‘it’s more than a site: supporting social justice through student supervision practices’ in chris ashford and paul mckeown (eds), social justice and legal education (cambridge scholars, 2018). 103 ibid. 104 ibid. see also quigley, fran, ‘seizing the disorienting moment: adult learning theory and the teaching of social justice in law clinics’ (1995) 2 clinical law review 37, susan brooks, ‘using a communication perspective to teach relational lawyering’ (2015) 15 nevada law journal 477. 105 allyson davys and liz beddoe, ‘the context of professional supervision’ in allyson davys and liz beddoe (eds), best practice in professional supervision: a guide for the helping professions (jessica kingsley, 2010) 18. 106 ibid 20. reviewed article 28 recognise and address the social justice dimensions of both their supervision role and the legal work in which they engage.107 within the clinical setting, students are given opportunities to learn legal skills to promote access to justice; however, if they are to explore larger issues of systemic injustice, deep exploration and learning is required.108 students need to engage in critical reflection and introspection to develop greater insight into, make a long-term commitment to and take responsibility for justice.109 reflection is a critical step in the transformative learning process.110 aiken stresses that clinicians must teach ‘reflective skepticism’ in which students learn ‘to understand that knowledge is constructed, and to gain the ability to challenge assumptions and explore alternatives’.111 to provoke reflective thinking, clinicians identify cases that are likely to stimulate transformative learning and create opportunities for students to reflect on their experiences.112 by 107 ibid. 108 refer to liz curran, judith dickson and mary-anne noone, ‘pushing the boundaries or preserving the status quo? designing clinical programs to teach law students a deep understanding of ethical practice’ (2005) 8 international journal of clinical legal education 104; barry, margaret martin, jon c dubin and peter joy, ‘clinical education for this millennium: the third wave’ (2000) 7 clinical law review 1. 109 aiken (n 93). 110 ibid. 111 ibid 288. see also kevin kerrigan, ‘how do you feel about this client?’ a commentary on the clinical model as a vehicle for teaching ethics to law students’ (2007) international journal of clinical legal education 37; anna cody, ‘what does legal ethics teaching gain, if anything, from including a clinical component?’ (2015) 22(1) international journal of clinical legal education 1. 112 aiken (n 93). reviewed article 29 reflecting, students can critically analyse their current assumptions to determine if their world view is accurate.113 a structured approach to supervision ensures that clinical teaching focuses on social justice learning.114 without clear guidance and support, students will struggle to appreciate the complexities and practicalities of the environment in which they are working.115 this may be accentuated when students are dealing with particularly challenging matters and adopt unsuitable practices as a result.116 clients may suffer if students fail to gather key information and address all of the legal issues.117 further, without clear and supportive supervision, students may receive insufficient feedback and are unlikely to develop reflective practices.118 as evans et al. observe, ‘the confidence that builds from being effectively supported and appropriately challenged is critical to clinic students’.119 113 ibid, citing michael christie et al, ‘putting transformative learning theory into practice’ (2015) 55(1) australian journal of adult learning 11. 114 ibid 1255. see also allyson davys and liz beddoe, best practice in professional supervision: a guide for the helping professions (jessica kingsley, 2010). 115 giddings, jeff and michael mcnamara, ‘preparing future generations of lawyers for legal practice: what’s supervision got to do with it?’ (2014) 37(3) university of new south wales law journal 1226 see also ross hyams, susan campbell and adrian evans, practical legal skills (oxford university press, 4th ed, 2014). 116 giddings and mcnamara (n 115). 117 ibid. see also barry, margaret martin, jon c dubin and peter joy, ‘clinical education for this millennium: the third wave’ (2000) 7 clinical law review 138. 118 giddings and mcnamara (n 115). 119 evans et al (n 1). reviewed article 30 evans et al. stress that for supervisors to provide students with clear guidance, they need to be aware of the best methods for teaching those skills and strategies.120 clinical pedagogy encourages clinical educators to focus on promoting those learning opportunities that are particularly well suited to clinic contexts, including ethics and values, skills development and legal problem-solving.121 to promote structured learning, the clinical learning framework emphasises the importance of program design, particularly the articulation of clear objectives and assessment criteria and the effective provision of feedback.122 strategies for social justice teaching when interacting with students in the clinical setting, it is essential for supervisors to actively engage with students about social justice in order to ensure students are made aware of their clients’ needs and interests and, in this way, understand their clients’ circumstances more deeply.123 supervisors should discuss with their students social justice issues that could impact on clients’ options for dispute resolution such as societal concerns, equity, self-determination and social responsibility.124 these discussions might include the clients’ socio-economic circumstances, whether the 120 ibid 124. 121 ibid. 122 ibid. 123 refer to cooper, jeremy, ‘social values from law school to practice: an introductory essay’ in jeremy cooper and louise trubek (eds), educating for justice: social values and legal education (ashgate, 1997) 5. 124 douglas, susan, ‘humanising legal education: lessons from adr’ (2012) 23(3) australasian dispute resolution journal 216. reviewed article 31 clients are literate, can speak english as a first language or require special communication methods, all developing the students’ awareness of the clients’ lack of access to justice and social inequality. supervisors engage with students on a level beyond skills training to involve them in discussions regarding inequality of resources, and encouraging a sense of responsibility for using the law to challenge injustice and to provide options for their clients to access justice.125 for the purposes of providing an example of how social justice teaching can be enhanced within the clinical context, we can look at a common matter encountered in law clinics, where a client seeks advice regarding a traffic infringement. traffic infringement case study factual scenario: a woman visits the clc for advice about a parking infringement she has received. the client is a single mother with four children, all under 18. the client had received a fine of $480 when she had collected her two youngest children (aged five and seven) from school and exceeded the 40km/hr speed limit outside the school (she was recorded travelling at 60km/hr). the client cannot afford to pay the fine and is seeking assistance in having the fine waived. the client is distressed during the interview and seeks advice on how to deal with this matter. 125 douglas, kathy, ‘shaping the future: the discourses of adr and legal education’ (2008) 8(1) law and justice journal 118. reviewed article 32 in this instance, the supervisor guides the student to apply critical and analytical thinking, by encouraging the student to look closely at the client’s needs and adopt a client-centred approach. the supervisor engages with the student about the client’s social and financial circumstances that may have contributed to the infringement, and her consequent ability to pay the fine. other factors to be considered include, her ability to understand the legislation and the legal process and her inability to speak fluent english, which impacts on her ability to write a letter to get a review of the fine and waiver. the supervisor encourages the student to consider whether the client requires any support from a financial counsellor, social worker or external agency during the process. additionally, the supervisor might provide the student with strategies for communicating the advice to the client. this includes addressing any language-related constraints and whether the client might require an interpreter to better comprehend the advice.126 the supervisor addresses the barriers to access to justice, such as the client’s socioeconomic circumstances, communication difficulties, and general inability to understand and navigate the legal system.127 in this way, the supervisor engenders in the student an understanding of the hardships the client faces due to her 126 refer to giddings, jeff, ‘the assumption of responsibility: supervision practices in experimental legal education’ in mutaz qafisheh and stephen rosenbaum (eds), global legal education approaches: special reference to the middle east (cambridge scholars, 2012). 127 giddings, jeff, ‘it’s more than a site: supporting social justice through student supervision practices’ in chris ashford and paul mckeown (eds), social justice and legal education (cambridge scholars, 2018) reviewed article 33 circumstances and focuses on the client’s interests or needs, in order to explore alternative options to litigation for resolving the client’s matter. stephen wizner cautions: it [is] not enough to simply provide students with the opportunity to experience the real world through the representation of low-income clients [it is important] to also sensitise the students as to what they were seeing, to guide them to a deeper understanding of their client’s lives and to help students develop a critical consciousness imbued with a concern for social justice.128 to improve supervisors’ fostering of students’ awareness of social justice, supervisors must first appreciate the central role they play in helping students learn in a clinic or placement environment129 and in explaining the limitations of the law and legal processes.130 giddings suggests that training workshops ‘that aim to place effective supervision at the forefront of experiential learning for supervisors are a valuable opportunity for building relationships between law schools and the supervisors involved in their clinical and placement programs’.131 such workshops challenge 128 stephen wizner, ‘beyond skills training’ (2001) 7 clinical law review 327. see also stephen wizner, ‘the law school clinic: legal education in the interests of justice’ (2001–2002) 70 fordham law review 1929. 129 wizner (n 128). 130 ibid 63. 131 giddings (n 102) 64. reviewed article 34 assumptions around the quality of supervision and emphasise the importance of effective preparation of students for the supervision relationship.132 it follows that if supervisors in clinical settings are going to be responsible for students’ social justice learning, they may require more understanding of appropriate supervision techniques. skills workshops have been held at various cle conferences, focusing on training to support supervisors.133 these workshops provide a guided and structured approach for supervisors to integrate social justice teaching into their practices. 134 clinical educators are encouraged to adopt an integrative framework to support students to incrementally develop knowledge, values, skills and the capacity to learn from experience. integration of methods the best practices report endorses an integrated approach, referring to the value of seeing experiential education ‘as part of a connected whole’.135 when the objective is 132 ibid. see also supporting social justice through student supervision practices’ in chris ashford & paul mckeown (eds), social justice and legal education, 2018, cambridge scholars publishing, 43-64. 133 ibid. skills workshops have been held at national and international clinical legal education conferences. refer to <https://www.monash.edu/law/home/cle/clinical-legal-education-conference>. 134 giddings (n 102) 60. see also jennifer lyman, ‘getting personal in supervision: looking for that fine line’ (1995) 2 clinical law review 211; jenifer gundlach, ‘this is a courtroom, not a classroom: so what is the role of the clinical supervisor?’ (2006) 13 clinical law review 279; carolyn grose, ‘flies on the wall or in the ointment—some thoughts on the role of clinic supervisors at initial client interviews’ (2008) 14 clinical law review 415. see also liz ryan cole and leah wortham, ‘learning from practice’ in jp ogilvy et al, learning from practice: a professional development text for legal externs (thomson/west, 2007). 135 refer to evans et al (n 1) 97. see also kenneth kreiling, ‘clinical education and lawyer competency: the process of learning to learn from experience through properly structured clinical reviewed article 35 for students to develop proficiency in the application of professional skills, students should have ‘repeated opportunities to perform the tasks to be learned or improved upon until they reach the desired level of proficiency’.136 before taking on substantial professional responsibility, students need to be prepared via supervision that directly emphasises the significant duties lawyers owe both to clients and the administration of justice.137 as students develop their skills and become more confident, they can be allowed to take greater control over their future learning as they determine for themselves the best ways to approach issues and problems.138 role play is one method that can be effectively integrated into the clinical framework to prepare and support students’ social justice learning. 139 role play as a learning and teaching strategy can be described as the ‘signature pedagogy’ of cle as it provides the opportunity for deep learning through active, authentic experiences that simulate real-world contexts.140 supervision’ (1981) 40 maryland law review; malcolm m combe, ‘selling intra-curricular clinical legal education’ (2014) 48(3) the law teacher 281. 136 evans et al (n 1) 142. see also jennifer lyman, ‘getting personal in supervision: looking for that fine line’ (1995) 2 clinical law review 211. 137 evans et al (n 1). 138 evans et al (n 1). 139 lee shulman, ‘signature pedagogies in the professions’ (2005) 134 daedalus 52; deborah maranville et al, ‘re-vision quest: a law school guide to designing experiential courses involving real lawyering’ (2012) 56(2) new york law school law review 517. 140 refer to douglas (n 1); hyams, campbell and evans (n 186); paul s ferber, ‘adult learning theory and simulations—designing simulations to educate lawyers’ (2002) 9 clinical law review 417. reviewed article 36 role play and clinical pedagogy the best practices report describes cle as ‘a pedagogy that places students in reallife environments. it is a form of experiential learning where students learn by doing and then reflecting’.141 similarly, simulation-based activities help students to understand and consolidate their learning experiences. when designed and implemented in a coherent and structured way, simulation can be used to complement and support other learning and teaching methodologies. 142 as grimes states, ‘[simulation] is not a “one-off act” that is then followed by problem solving learning and/or clinical activity, instead, it can be seen as a strategic part of an educational plan in which the student is required to assume part-responsibility for how he or she learns’.143 in cle, simulation can be used to develop learning opportunities for students and implemented in a pedagogic model that uses ‘problem’ analysis (and to an extent problem-solving) as the baseline for the delivery of clinical programs.144 while ‘clinic’ is a generic term to describe the context in which students learn through 141 refer to evans et al (n 1). see also hugh brayne et al, clinical legal education: active learning in your law school (blackstone press, 1998) 2; ra bush, ‘using process observation to teach alternative dispute resolution: alternatives to simulation’ (1987) 37 journal of legal education 46; elliot milstein, ‘clinical legal education in the united states: in-house clinics, externships, and simulations’ (2001) 51(3) journal of legal education 375. 142 richard grimes, ‘faking it and making it? using simulation with problem-based learning’ in legal education: simulation in theory and practice, edited by caroline stevens, et al., taylor & francis group, 2014 proquest ebook central, http://ebookcentral.proquest.com/lib/monash/detail.action?docid=1825708. see also barry, margaret martin, ‘clinical supervision: walking that fine line’ (1995) 2(1) clinical law review 137; beddoe, liz and allyson davys, ‘the context of professional supervision’ in allyson davys and liz beddoe (eds), best practice in professional supervision: a guide for the helping profession (jessica kingsley, 2010). 143 grimes (n 142). 144 ibid 182. reviewed article 37 exposure to real or realistic casework, simulation can be considered a form of a clinic. as grimes states: the learning comes from direct experience of working with clients (actual or fictional), but is used here in the specific context of real (or, as it is often described, ‘live’) clients. what renders the whole ‘clinical’ is the opportunity provided to the student to deconstruct that experience and to actively reflect, as an individual and as a team, on what has happened (or not) and why. clinic is therefore learning by doing and learning through reflecting on that ‘doing’.145 similarly, mccoid-mason states that simulation is a ‘flexible tool that can enhance learning and teaching by engaging and motivating students through hands-on exercises that draw on real or realistic case studies’.146 simulation can be viewed as a strategic part of an educational plan in which a student assumes active responsibility for how they learn.147 role play might be used to give students a feel for the nature of an adversarial system, the complex nature of client/lawyer relations, the extent of police powers or the contractual and statutory responsibilities of landlords and their tenants.148 145 ibid 172. 146 ibid 175. 147 ibid. 148 ibid 172. reviewed article 38 employment case study for the purposes of providing an example of how role play can be used to enhance social justice teaching, we can look at a role play scenario of an employment matter. students are able to assume the roles of any of the parties in the dispute: the employee (client), the employer, or the lawyers advising the employee and employer. factual scenario: a client visits the clinic seeking advice about a workplace incident. he was employed to clean an office building after working hours (usually from 12am). he was required to meet three other cleaners at the building at 11:45pm to be allocated floors to clean each night. on the night in question, the client reported to work late, arriving at 1:00am. the client informed the student that this was because he was responsible for his children until his wife returned from her job, and she had arrived late. the client explained his lateness to his manager the next morning. when he reported to work the following evening, the manager informed him that he would only receive pay for the hours he had worked and at a reduced rate. when the client asked why, he was told ‘as you were late, you have no right to ask questions’ and ‘you will lose your job if you utter another word’. the client is distressed during the interview. specifically, he wishes to know if he was able to claim full pay for the shift, how this could be done and whether he could lose his job. the rationale for providing students with this type of scenario is to get students to work through the dispute, which involves a multitude of issues, both legal and nonreviewed article 39 legal. the aim is not for students to attempt to resolve the problem, but rather to identify the issues, research the relevant law and endeavour to explain how the legal process might impact on the given scenario.149 through this analysis, students will assess outcomes and critically consider the law in relation to the dispute from the perspectives of all parties.150 the student playing the role of the client is invited to consider how the client’s circumstances may impact on the resolution of the dispute.151 this includes addressing any language-related constraints on the client’s understanding of the advice.152 the client’s ability to understand and speak english and whether a telephone interpreter is needed to convey advice to the client.153 also, whether the client requires any 149 refer to evans (n 1). see also hyams, ross, ‘on teaching students to ‘act like a lawyer’: what sort of lawyer?’ (2008) 13 international journal clinical legal education 25; hyams, ross, susan campbell and adrian evans, practical legal skills developing your clinical technique (oxford university press, 4th ed, 2014). 150 refer to james, colin, ‘seeing things as we are. emotional intelligence and clinical legal education’ (2005) 8 international journal of clinical legal education 123. see also hyams, ross and fay gertner, ‘multidisciplinary clinics: broadening the outlook of clinical learning’ (2012) 17 international journal of clinical legal education 25. 151 refer to field, rachael and roy alpana, ‘a compulsory dispute resolution capstone subject: an important inclusion in a 21st century australian law curriculum’ (2017) 27 legal education review 73. see also fisher, tom, judy gutman and erika martens, ‘why teach alternative dispute resolution to law students? part 2: an empirical survey’ (2007) 17(1–2) legal education review 67; gutman, judy and matthew riddle, ‘adr in legal education: learning by doing’ (2012) 23(3) australasian dispute resolution journal 189. 152 refer to ojelabi, lola akin, ‘communication and culture: implications for conflict resolution practitioners’ (2008) 19(3) australasian dispute resolution journal 189. see also rand, spencer, ‘teaching law students to practice social justice: an interdisciplinary search for help through social work’s empowerment approach’ (2006) 13 clinical law review 459; stevenson-graf, lindsey, ‘clinical programs, social justice and transformation through student learning’ (2019) 44(3) alternative law journal 232. 153 refer to styles, irene and archie zariski, ‘law clinics and the promotion of public interest lawyering’ (2001) 19 law in context 65. reviewed article 40 support from social workers or external agencies during the process. focusing on the parties’ respective interests will focus the students’ minds on the relative strengths and weaknesses of the matter from all perspectives and assist students to contemplate realistic outcomes for their clients.154 students are encouraged to reflect and consider external influencing factors such as the suitability of dispute resolution processes, the ability of clients to self-represent at these forums and therefore engage with wider issues, such as public policy concerns and access to justice.155 one of the principal advantages of using simulation as a clinical teaching method is that it provides a safe environment in which students can learn.156 no client confidentiality concerns need to be safeguarded; the use of simulated situations makes it easier to provide students with scaffolds to support them as they begin to engage with the issues and interests raised by particular legal situations; and students can be prepared for their later contact with real clients, particularly in relation to skills such as interviewing.157 simulation, therefore has the capacity to expose students to the 154 refer to sullivan, william m et al, educating lawyers: preparation for the profession of law (report, 2007). see also sylvester et al, ‘problem-based learning and clinical legal education: what can clinical educators learn from pbl?’ (2004) 4/6 international journal of clinical legal education 39. 155 refer to frank bloch (ed), the global clinical movement: educating lawyers for social justice (oxford university press, 2011) 253. see also tokarz, karen and v nagaraj, ‘advancing social justice through adr and clinical legal education in india, south africa and the united states’ in frank bloch (ed), the global clinical movement: educating lawyers for social justice (oxford university press, 2011) 253; liz ryan cole, ‘a special focus to help understand and advance social justice’ in frank bloch (ed), the global clinical movement: educating lawyers for social justice (oxford university press, 2011) 324. 156 giddings (n 102) 85. 157 ibid. see also paul s ferber, ‘adult learning theory and simulations—designing simulations to educate lawyers’ (2002) 9 clinical law review 417; gregory baker, ‘do you hear the knocking at the door? a “therapeutic approach to enriching clinical legal education comes calling”’ (2006) 28 reviewed article 41 complex intergroup and interpersonal dynamics of lawyering.158 as giddings further states: [simulation exercises] can assist students to better understand their own feelings: why they are likely to over-identify with their client’s perspective, come into conflict with the representatives of the other party, forget ethical precepts and have their judgement clouded by strong feelings.159 overall, role play engages students in social justice learning, enhancing their understanding of it and increasing their appreciation of its importance.160 by integrating methods such as role play into social justice teaching, students are encouraged to engage with their learning.161 not only do clinics provide a rich source of potential material for simulation, they also provide opportunities for clinic students to observe real outcomes and reflect on what happened and why.162 role play enables whittier law review 379; d maranville, ‘passion, context, and lawyering skills: choosing among simulated and real client experiences’ (2007) 7 clinical law review 123. 158 giddings (n 102). see also schrag and meltsner (n 8). 159 giddings (n 102) 36–7. 160 singo (n 11) 299. 161 singo (n 11) 300. see also ference marton and roger saljo, ‘on qualitative differences in learning—2: outcomes as a function of the learner’s conception of the risk’ (1976) 46 british journal of educational psychology 115; deborah maranville, ‘passion, context, and lawyering skills: choosing among simulated and real client experiences’ (2000) 7(1) clinical law review 123; ferber (n 218). 162 for further reading in this area refer to evans et al (n 1) ch 7; c maughan and j webb, ‘taking reflection seriously: how was it for us? in c maughan and j webb (eds), teaching lawyers’ skills (butterworths, 1996); ross hyams, ‘assessing insight: grading reflective journals in clinical legal education’ (2007) 17 james cook university law review 25; rachel spencer, ‘holding up the mirror: a theoretical and practical analysis of the role of reflection in clinical legal education’ (2012) 17 international journal of clinical legal education 181; michele leering, ‘encouraging reflective practice: conceptualising reflective practice for legal professionals’ (2014) 23 journal of law and social policy 83. reviewed article 42 students to understand and perform important lawyering tasks, such as questioning, listening, consolidating issues and problems and engaging in creative legal analyses.163 in this way, students develop the essential legal practice skills to enable them to problem solve and think critically about their approach to advising clients. a classroom component the classroom component of clinics can further support student learning.164 according to the best practices report, each clinic should include classes that enable students as a group to examine the broader context of law and the legal system.165 the goal of the classroom component is inextricably linked to the overall goals of the program.166 in line with best practice, clinical programs often include seminars to support students’ learning in practice areas, reflective practice and legal ethics. in designing a clinical curriculum that includes seminars focusing on social justice teaching, students are provided with seminars that are devoted to particular skills or processes (interviewing) with simulation and/or real case experience.167 163 refer to lee shulman, ‘signature pedagogies in the professions’ (2005) 134 daedalus 52; deborah maranville et al, ‘re-vision quest: a law school guide to designing experiential courses involving real lawyering’ (2012) 56(2) new york law school law review 517. 164 evans et al (n 1). 165 evans et al (n 1). 166 ibid, citing mary jo ester, ‘designing and teaching the large externship clinic’ (1998–1999) 3 clinical law review 347, 348. see also roy stuckey, ‘ensuring basic quality in clinical courses’ (2000) 1 international journal of clinical legal education 49; roy stuckey et al, best practices for legal education: a vision and a road map (us best practices) (clinical legal education association, 2007); sally kift, ‘21st century climate for change: curriculum design for quality learning engagement in law’ (2008) 18(1–2) legal education review 1; jonny hall and kevin kerrigan, ‘clinic and the wider law curriculum’ (2011) 16 international journal of clinical legal education 37. 167 for further reading in this area refer to refer to liz curran, judith dickson and mary-anne noone, ‘pushing the boundaries or preserving the status quo? designing clinical programs to teach law reviewed article 43 by example, seminars on intercultural competency are important to enhance students’ understanding and awareness of being a culturally competent lawyer.168 this seminar can cover strategies that enable students to understand, communicate, collaborate and work effectively with clients and other stakeholders (court, social workers, health professionals) irrespective of the ethnicity of person, their religious beliefs, sexual orientation, disability, class and education. this seminar can include discussion and training on how to work with interpreters when providing legal assistance to clients, including strategies for students when working with interpreters.169 additionally, a seminar on legal ethics, encourage students to focus on ethical issues that may impact on their interaction with clients, such as confidentiality and conflict of interest.170 during this seminar, students can be provided with scenarios containing ethical dilemmas, which through discussion, they can consider alternative means to students a deep understanding of ethical practice’ (2005) 8 international journal of clinical legal education 104; barry, dubin and joy (n 9); c menkel-meadow and b moulton, beyond the adversarial model: materials on negotiation and mediation (west publishing, 2007); kevin kerrigan, ‘how do you feel about this client?’ a commentary on the clinical model as a vehicle for teaching ethics to law students’ (2007) international journal of clinical legal education 37; anna cody, ‘what does legal ethics teaching gain, if anything, from including a clinical component?’ (2015) 22(1) international journal of clinical legal education 1. 168 olejabi (above n 152). see also carrie menkel-meadow, ‘pursuing settlement in an adversary culture: a tale of innovation co-opted or “the law of adr”’ (1991) 19(1) florida state university law review 3. 169 refer to gregory baker, ‘do you hear the knocking at the door? a “therapeutic approach to enriching clinical legal education comes calling”’ (2006) 28 whittier law review 379; d maranville, ‘passion, context, and lawyering skills: choosing among simulated and real client experiences’ (2007) 7 clinical law review 123. 170 liz curran, judith dickson and mary-anne noone, ‘pushing the boundaries or preserving the status quo? designing clinical programs to teach law students a deep understanding of ethical practice’ (2005) 8 international journal of clinical legal education 104. reviewed article 44 resolve.171 students are encouraged to respond and they should not be fearful that their answers will be ‘correct’ or ‘wrong’, rather they are provided with supportive ethical frameworks within which they can work in future practice. 172 similarly, a seminar on dispute resolution processes enhances students’ understanding of the importance of seeking alternative options for resolving clients’ disputes.173 these seminars may include videos to enhance social justice teaching.174 douglas et al. suggest that an effective way to incorporate technology into teaching is to combine videos with an online discussion of practice skills and then ask the students to demonstrate these skills in role plays. 175 students are provided with readings prior to the seminars to engage in advance preparation to ensure greater participation and cooperation in the seminars. their feedback is encouraged, ensuring 171 ibid. 172 ibid. 173 refer broadly to beryl blaustone, ‘training the modern lawyer: incorporating the study of mediation into required law school courses’ (1992) 21 southwestern university law review 1317; pauline collins, ‘student reflections on the benefits of studying adr to provide experience of nonadversarial practice’ (2012) 23 australian dispute resolution journal 209. see also james nikolas, ‘logical, critical and creative: teaching “thinking skills” to law students’ (2012) 12(1) qut law & justice journal 66. 174 refer to judy gutman and m riddle, ‘adr in legal education: learning by doing’ (2012) 23 australasian dispute resolution journal 194; kathy douglas, josephine lang and meg colasante, ‘the challenges of blended learning using a media annotation tool’ (2014) 11(2) journal of university teaching and learning practice 3–4. 175 kathy douglas, tina popa and christina platz, ‘teaching mediation using video and peer discussion: an engaged video learning model’ (2019) 29(3) australasian dispute resolution journal 182. also refer to kathy douglas and belinda johnson, ‘legal education and e-learning: online fishbowl role-play as a learning and teaching strategy in legal skills development’ (2010) 17(1) elaw: murdoch university electronic journal of law 28; michele ruyters, kathy douglas and siew fang law, ‘blender learning using role-plays, wikis and clogs’ (2011) 4(4) journal of learning and design 45. reviewed article 45 they gain a deeper understanding of the topics. this enhances students’ social justice learning, as they ‘become active rather than passive learners’.176 conclusion although cle has long focused on preparing law students to enter practice with a deeper understanding of social justice issues and the skills necessary to assist persons in accessing justice, this well-established mission has been increasingly challenged. with the expansion of cle and the growth of externships, clinical students are increasingly placed in corporate settings or private law firms in which social justice may not be the central ethos. clinicians have differing views in this regard. kosuri argues that while clinics offer a rich experience that cannot be replicated by other forms of experiential learning, not all clinical law programs need to include social justice teaching to be recognised as cle.177 cole challenges these views and argues that these clinics can still support a social justice mission and reinforce lessons about social justice that will carry on into the rest of the students’ professional life.178 clinical pedagogy incorporates a social justice mission that enables students to explore and reflect on the issues that affect access to justice. in doing so, these programs teach students skills in communication, problem-solving, critical thinking and conflict management. 176 douglas et al (n 176) 46. 177 kosuri (n 65). 178 cole (n 75). reviewed article 46 despite the challenges that exist, this paper has explored ways in which social justice can be retained as a key focus of cle developing students’ understanding of social justice and conflict management. this paper has highlighted the effective ways that social justice teaching can be included in the clinical curriculum. notably, supervisors play a critical role in this teaching with methods including role play, simulation-based exercises, seminars and skills teaching, all intended to introduce students to the knowledge and skills needed to become critical thinking client–centred practitioners. 179 the suitability of these methods will depend on the clinic type, the model of cle and the resources available. to ensure a standardised approach to social justice teaching, clinicians need to be trained in the aspects and theories of social justice and its connection to clinics. a focus on client-centred lawyering and access to justice will enhance students’ ability to manage conflict and establish trusting lawyer–client relationships in whichever context they practice. in this way, cle can ensure that law students continue to develop a deep understanding of the importance of retaining social justice as a focus for their future as 21st-century legal practitioners. 179 refer to julie macfarlane, ‘the evolution of the new lawyer: how lawyers are reshaping the practice of law’ (2008) 61 journal of dispute resolution 61; julie macfarlane, the new lawyer: how settlement is transforming the practice of law (ubc press, 2008). reviewed article 47 bibliography a articles/books/reports aiken, jane, ‘the clinical mission of justice readiness’ (2012) 32 boston college journal of law & social justice 231 aiken, jane, ‘provocateurs for justice’ (2001) 7 clinical law review 294 aiken, jane, ‘walking the clinical tightrope: embracing the role of teacher’ (2004) 4 university of maryland law journal of race, religion, gender & class 267 alexander, nadja and michelle lebaron, ‘death of the role-play’ in christopher honeyman, james coben and giuseppe de palo (eds), rethinking negotiation teaching: innovations for context and culture (dri press, 2009) 179 alvarez, alicia, ‘community development clinics: what does poverty have to do with them?’ (2007) 34 fordham urban law journal 1269 american bar association, legal education and 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learning using a media annotation tool’ (2014) 11(2) journal of university teaching and learning practice 1 douglas, kathy, tina popa and christina platz, ‘teaching mediation using video and peer discussion: an engaged video learning model’ (2019) 29(3) australasian dispute resolution journal 182 du plessis, ma, ‘university law clinics meeting particular student and community needs a south african perspective’ (2008) 17(1) griffith law review 121 reviewed article 54 ester, mary jo, ‘designing and teaching the large externship clinic’ (1999) 5(2) clinical law review 347 evans, adrian, ‘best practices: australian clinical legal education’ (2013) 47(3) the law teacher 421 evans, adrian, the good lawyer (cambridge university press, 2014) evans, adrian, ‘specialised clinical legal education begins in australia’ (1996) 21(2) alternative law journal 79 evans, adrian et al, australian clinical legal education: designing and operating a best practice clinical program in an australian law school 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stephen rosenbaum (eds), global legal education approaches: special reference to the middle east (cambridge scholars, 2012) giddings, jeff, ‘contemplating the future of clinical legal education’ (2008) 17 griffith law review 15 giddings, jeff, ‘it’s more than a site: supporting social justice through student supervision practices’ in chris ashford and paul mckeown (eds), social justice and legal education (cambridge scholars, 2018) reviewed article 56 giddings, jeff, promoting justice through clinical legal education (justice press, 2013) giddings, jeff, ‘using clinical methods to teach alternative dispute resolution: development at griffiths university’ (1999) australasian dispute resolution journal 206 giddings, jeff, ‘why no clinic is an island: the merits and challenges of integrating clinical insights across the law curriculum’ (2010) 34 washington university journal of law and policy 261 giddings, jeff et al, ‘the first wave of modern clinical legal education: the united states, 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‘transformative learning as a metatheory: definition, criteria, and typology’ (2016) 66(1) adult education quarterly: a journal of research and theory 57 horrigan, bryan, corporate social responsibility in the 21st-century: debates, models and practices across government, law and business (edward elgar, 2012) horrigan, bryan, ‘designing and implementing an enhanced clinical program in the age of disruption. part one: the environment for clinic’ (2019) 26(2) international journal of clinical legal education 75 horrigan, bryan, ‘designing and implementing an enhanced clinical program in the age of disruption. part two: the environment for clinic’ (2020) international journal of clinical legal education 204 reviewed article 59 horrigan, bryan, ‘the role of lawyers in steering corporate governance and responsibility towards addressing social injustice and inequality’ in pd maynard and n gold (eds), poverty, justice and the rule of law: report of the second phase of the iba presidential 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reviewed article 63 milstein, elliot, ‘clinical legal education in the united states: in-house clinics, externships, and simulations’ (2001) 51(3) journal of legal education 375 ojelabi, lola akin, ‘communication and culture: implications for conflict resolution practitioners’ (2008) 19(3) australasian dispute resolution journal 189 janice orrell, good practice report: work-integrated learning (australian learning and teaching council, 2011) rand, spencer, ‘teaching law students to practice social justice: an interdisciplinary search for help through social work’s empowerment approach’ (2006) 13 clinical law review 459 rhode, deborah, ‘pro bono in principle and in practice’ (2003) 53(3) journal of legal education 413 rigg, david, ‘embedding employability in assessment: searching for the balance between academic learning and skills development in law: a case study’ (2013) 47 the law teacher 404 riskin, leonard, ‘mediation in law schools’ (1984) 34 journal of legal education 259 reviewed 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approach to critical race pedagogy’ (2000) 78 denver university law review 595 sourdin, tania, alternative dispute resolution (thomson reuters, 5thed, 2016) stevenson-graf, lindsey, ‘clinical programs, social justice and transformation through student learning’ (2019) 44(3) alternative law journal 232 stuckey, roy, ‘ensuring basic quality in clinical courses’ (2000) 1 international journal of clinical legal education 49 stuckey, roy et al, best practices for legal education: a vision and a road map (us best practices) (clinical legal education association, 2007) styles, irene and archie zariski, ‘law clinics and the promotion of public interest lawyering’ (2001) 19 law in context 65 taylor, edward w, the handbook of transformative learning theory, research, and practice (jossey-bass, 2012) reviewed article 66 taylor, edward w, ‘the theory and practice of transformative learning’ (1998) a critical review 7 walsh, tamara, ‘putting justice back into legal education’ (2007) 17 legal education review 119 weinberg, jacqueline, ‘keeping up with change: no alternative to teaching adr in clinic. an australian perspective’ (2018) international journal of clinical legal education 1 wilson, richard, ‘beyond legal imperialism: us clinical legal education and the new law and development’ in frank bloch (ed), the global clinical movement: educating lawyers for social justice (oxford university press, 2011) 135 wizner, stephen, ‘beyond skills training’ (2001) 7 clinical law review 327 wizner, stephen, ‘the law school clinic: legal education in the interests of justice’ (2001–2002) 70 fordham law review 1929 wizner, stephen and jane aiken, ‘teaching and doing: the role of law school clinics in enhancing access to justice’ (2004–2005) 73 fordham law review 997 reviewed article 67 wizner, stephen and william o douglas, remarks (paper, boston college journal of law & social justice symposium, 28 october 2011) <http;//www.bc.edu/schools/law/newsevents/events/conferences/carnegie_symp_tw lj/carnegie_video.html> wizner, stephen, ‘is social justice still relevant’ (2012) 32(2) boston college journal of law & social justice 345 social justice teaching in cle definitions of social justice challenges of social justice teaching social justice teaching remains important the role of supervision in social justice teaching role play and clinical pedagogy a classroom component conclusion bibliography practice report: clinic, the university and society the financial challenges of clinical legal education: an example from a zagreb law clinic barbara preložnjak and juraj brozović[footnoteref:2]*** [2: * barbara preložnjak is assistant professor in the department of general theory of state and law, juraj brozović is research assistant in the department for civil procedure law. both are assistants to the director at zagreb university. this work has been supported in part by croatian science foundation under the project 6988.] university of zagreb, croatia authors lay out the debate over the composition and direction of legal education in an era of law school’s curriculum reform and limited financial resources. croatian legal aid act created an opportunity for law students to become more actively involved in delivering primarily legal aid to local community. if law schools are not sufficiently financially resourced, they can hardly equip students with the needed skills to practice law and provide legal aid. finally, the authors argue who should play a guiding role in financing a clinical legal education in law schools that are focused on educating students as social justice lawyers. keywords: clinical legal education, legal aid, financial sustainability 1. introduction the concept of practical problem solving is an important means of developing skills which employers are expecting from young lawyers on the labour market.[footnoteref:3] therefore, modern law school curriculums require that they increase the quantity and quality of experiential education provided to students. clinical legal education is one form of experiential education which has grown in importance globally due to its potential to improve the quality of legal education.[footnoteref:4] clinical legal education aims at developing the perception, attitudes, skills and sense of responsibilities which lawyers are expected to possess when they complete their professional education[footnoteref:5] thus, clinical legal education provides students with opportunities for professional and intellectual development and prepares them for the practice of law.[footnoteref:6] [3: research has shown that the modern law firms share ideas of what they expect from law graduates. there are certain competencies which are most important in the hiring decision (hamilton, n. w., law-firm competency models and student professional success: building on a foundation of professional formation/professionalism, university of st. thomas law journal, vol. 11, issue 1, 2013, pp. 6-38). ] [4: bloch, f. s, access to justice and the global clinical movement, washington university journal of law & policy, vol. 28, 2008, p. 113. for a broader perspective and overview of different clinical models and experiences worldwide see bloch, f. s. (ed.), the global clinical movement: educating lawyers for social justice, oxford university press, new york, 2010.] [5: vadapalli, r., the perspective of clinical legal education" selected works, 2010, p. 1. available at: http://works.bepress.com/ranganath_vadapalli/9/ (24/10/2016).] [6: ibid.] the article is divided in four parts. the first part examines the role of clinical legal education at law schools and their service to the local community. the second section briefly discusses the financial challenges that law schools face when they want to introduce and sustain a clinical curriculum. the third section presents an example of financial sustainability of clinical legal education at zagreb law school (the law school).[footnoteref:7] finally, the fourth section discusses the general financial implications for clinical legal education sustainability based on the zagreb law clinic (the law clinic) experience and discusses whether clinical legal education should be as done so traditionally, financed by law school, or if the burden should be also divided among legal practitioners, local community and the state. [7: see http://klinika.pravo.unizg.hr/law-clinic-zagreb (16/08/2016).] 2. the role of clinical legal education the intellectual roots of clinical legal education date back in the 1930s when academics at the yale law school, together with colleagues at columbia and one or two other law schools, developed a new approach to the study of law.[footnoteref:8] their teaching was based on the idea that law should be used to help solve social and economic problems, so students needed to be encouraged to question existing legal rules and procedures with an aim to learn to think like a lawyer, rather than memorising rules and doctrine.[footnoteref:9] but it was not until the late 1960s that idea of clinical legal education received financial support and found effective advocates.[footnoteref:10] starting with a small number of demonstration grants in the late '60s and early '70s clinical legal education was introduced into the majority of american law schools.[footnoteref:11] today, more than 100 law schools in the united states have clinical programs which are permanently included in law school budgets, as do some in canada, the uk, australia, latin america, europe, china, israel, etc.[footnoteref:12] [8: wizner, s., the law school clinic: legal education in the interests of justice, fordham law review, 2002, vol. 70(5), pp. 1931 -1933.] [9: ibid., pp. 1931, 1932.] [10: ibid., p. 1933.] [11: barry, m., et al., clinical education for this millennium: the third wave, clinical law review, 2000, vol. 7(1), pp. 19-20.] [12: ibid, p. 20-22.] although legal education has undergone rapid change since late 1960s, law schools are still in the midst of adjusting clinical curriculum to meet the demands of employers who increasingly want to hire students who are ready to practice law.[footnoteref:13] therefore, clinical legal education is becoming popular within law schools, as it establishes an opportunity for the students to gain important practical experience whilst providing a valuable legal aid service to the local community.[footnoteref:14] they have become the primary places where law students can learn to be competent, ethical and socially responsible lawyers.[footnoteref:15] though in modern welfare state the primary obligation to provide legal aid services to the poor resides with the government and with the legal profession,[footnoteref:16] law schools can also contribute to the solution of the crisis in access to justice.[footnoteref:17] on the basic level, law clinics become like law firms, where students can engage in supervised law practice by providing legal services to clients in the legal aid system and at the same time develop a critical view of that system.[footnoteref:18] on the other hand, tasks that students perform in law clinics can be distinguished from the work they perform in law firms while attending law school.[footnoteref:19] students in law clinics have an exceptional opportunity to learn that legal doctrine, rules and procedure, ethical considerations and the social, economic and political implications of legal aid services are interrelated[footnoteref:20] thereby, law clinics can provide an instructional program that is intellectually situated within the law school curriculum as an integral part of legal education with particular valuable opportunities for students to learn how the law functions, or fails to function, while serving low-income clients.[footnoteref:21] [13: radvany, p., preparing law students to become litigators in the new legal landscape, review of litigation, 2014, vol. 33(4), p. 881.] [14: marson et. al. 2005, p. 29.; quigley 1995, p. 471.] [15: wizner 2002, p. 1929.] [16: or at least that are the citizen’s average expectations. see social welfare law: what the public wants from civil legal aid. findings from a nationwide opinion poll, lag, the baring foundation, p. 7. available at: www.lag.org.uk/media/47770/social_welfare_law_what_the_public_wants_from_civil_legal_aid.pdf (24/10/2016). ] [17: wizner et. al. 2004, p. 997.] [18: wizner 2002, p. 1930.] [19: ibid.] [20: law schools have a unique opportunity and obligation to make access to justice a more central social priority. rhode, d. l., access to justice, oxford university press, 2004., p. 193. cited in wizner et. al. 2004, p. 997. students are in contact with real life clients and they are engaged in activities which are usually done by graduate lawyers. such experience gives them unique opportunity to develop needed skills for working in practice. they interview the clients, do their own research, give their own advice etc. in order to do that in a proper manner, they need to understand the system in which they are going to work. for a further overview of the benefits of law clinics, see kerrigan, k., murray, v., a student guide to clinical legal education and pro bono, palgrave macmillan, london, 2011, pp. 13-17.] [21: ibid, p. 998.; rhode, d., l., in the interests of justice: reforming the legal profession, oxford university press, 2000, p. 199.] 3. the challenges of clinical legal education legal education curriculums that tend to satisfy labour market demands require law schools to increase the quantity and quality of experiential education.[footnoteref:22] at the same time, law schools are under pressure to control costs.[footnoteref:23] it is the most pressing challenge many law schools face because they have a relatively fixed budget, which they can spend on matters that are most valued by the school.[footnoteref:24] law schools must weigh the relative costs and merits of clinical experiential learning against those of other aspects of practical courses such as externships, which usually allow higher student-to-faculty ratios, and therefore, lower costs per student.[footnoteref:25] the cost per student for clinical education varies greatly depending on the type of clinical program and course.[footnoteref:26] the variations in costs may stem from different factors such as status of the faculty teaching the courses, student-to-faculty ratios, the number of credit hours awarded, law clinic facilities, including a research library, interview rooms, conference rooms and offices equipped with state-of-the-art technology.[footnoteref:27] in comparing the costs, it is often difficult to understand the true financial costs of clinical courses versus other practical law school courses.[footnoteref:28] therefore, law schools must decide how much experiential education they want to offer and what they need to trade off to accomplish that goal.[footnoteref:29] beside the educational goal, law clinics also have the task to meet the needs of low-income clients and their communities whom depend on legal aid services which students provide. this is to help ensure their access to crucial legal rights and procedures that protect the basic necessities of life, such as social assistance, housing, health, education and human rights. therefore, sustainability of clinical legal education is not only crucial for the academic community but also for local communities. we should not forget its significance for local law firms that could benefit of this type of legal education which makes students with this experience more employable and successful in law practice.[footnoteref:30] the broad scope of clinical legal education benefits are continually challenging law schools to find more cost-effective and innovative ways of gaining outside funding. this can be ensured from the state as funding for the representation of indigent clients and from law firms and attorneys as in-kind contributions.[footnoteref:31] although clinical legal education programs can be more expensive than the socratic or lecture and seminar classroom environment type of education, financial commitments from the whole community (academia, professional lawyers, local community and state) may be of great help to overstate that expostulations.[footnoteref:32] [22: katz, m., understanding the costs of experiential legal education, journal of experiential learning, 2015, vol. 1(1), p. 28.] [23: ibid.] [24: ibid., p.36.] [25: joy, p. a., the cost of clinical legal education, boston college journal of law and social justice, 2012, vol. 32(2), p. 327.] [26: ibid.] [27: ibid., for detailed financial planning clinical legal education see more katz 2015.] [28: ibid, p.328.] [29: see kuehen, r. r., pricing clinical legal education, denver university law review, 2015, vol. 92(1); joy, p. a., the maccrate report: moving toward integrated learning experiences, clinical law review, 1994, vol. 1(2), pp. 401, 404.] [30: marson, j., wilson, a., van hoorebeek, m., the necessity of clinical legal education in university law schools: a uk perspective, international journal of clinical legal education, 2005, vol. 7, p. 29.] [31: haydock, r. s., clinical legal education: the history and development of a law, william mitchell law review, 1983, vol. 9(1), p. 142-144. in-kind contributions can be given basically in any goods, commodities or services, as long as they are not money-based.] [32: kramer, j. r., who will pay the piper or leave the check on the table for the other guy, journal of legal education, 1989, vol. 39(5), pp. 655, 661.; kuehen 2015, pp. 21-22.] 4. zagreb law clinic practice for better legal education 4.1. clinical legal education and the preservation of access to justice zagreb law clinic was established in october 2010, with an aim to enable direct and active, practical education of students by their participation in live client cases and delivering legal aid to socially vulnerable groups of citizens. in accordance with the regulation on study (the regulation)[footnoteref:33] and statute of zagreb law clinic (the statute),[footnoteref:34] the law clinic is defined as a form of teaching in which students provide free legal assistance in practical legal matters under the supervision of academics and legal practitioners.[footnoteref:35] the law clinic represents, along with simulated trials and internships in law firms and public notary offices, one of three forms of practical training in the ninth semester of the educational curriculum.[footnoteref:36] student participation in the work of the law clinic is evaluated as equivalent to six hours of work per week during one semester, and equals 10 ects credits.[footnoteref:37] students who enrol in the law clinic go through several stages and kinds of clinical education. at the start of their clinical practice students are obliged to attend introductory seminars, where they gain knowledge on the techniques of taking on and processing legal cases.[footnoteref:38] after finishing introductory seminars students take their daily duties in the central office where they work in groups in order to provide general legal information, legal advice and prepare written legal opinions (primary legal aid)[footnoteref:39] to citizens who have applied for clinical legal aid.[footnoteref:40] students are not allowed to directly represent clients in the court, but they may attend the hearings and, within the work of law clinics, they may assist persons authorised to represent clients in the court.[footnoteref:41] students provide primary legal aid to socially vulnerable citizens, but they are also authorised to provide legal aid in various kinds of legal cases,[footnoteref:42] which are of great importance for gaining practical knowledge.[footnoteref:43] although students are obliged to work in the group, they also may undertake individual research regarding preliminary processing of cases.[footnoteref:44] in our central office, students have at least one meeting per week of working groups, where they discuss the results of their clinical work and any problems they are facing during their clinical practice.[footnoteref:45] at least twice in a semester students and clinical leadership hold plenary meetings with the aim of discussing organisational and strategic issues of clinical work, such as enrolment of new students, new projects of cooperation with ngos and other regional law clinics and planning the schedule for providing legal aid in mobile clinics (outreach projects).[footnoteref:46] beside the work in the central office, students are obliged to work in a mobile clinic, where they provide legal aid in areas of croatia where legal aid is most needed.[footnoteref:47] [33: regulation on study of 26 february 2014. for the whole text (croatian only) see: www.pravo.unizg.hr/images/50000902/pravilnik%20o%20studiju%2014-04-11%20usvojen%20 tekst.pdf last cited 12/08/2016] [34: statute of zagreb law clinic of 02 july 2014. for the whole text (croatian only), see http://klinika.pravo.unizg.hr/sites/default/files/akt_o_pravnoj_klinici_-_statut_pk.pdf last cited 12/08/2016 ] [35: art. 16. of the regulation 2014.; art. 2., para. 1. of the statute 2014.] [36: see law study program, curriculum for ix semester available on website: www.pravo.unizg.hr/diplomski_studij/5.godina/nastavni_plan?_v1=ckipgg_h0qgu0cwjvwovgawnrlbp2a_roltuulzyi6gzzczxqmljvlhyzb9q659usnn9jmmfg-q0g7pmai1_ga==&_lid=22629#news_22629. ] [37: ibid.] [38: preložnjak, b., clinical legal education in croatia – from providing legal assistance to the poor to practical education of students, international journal of clinical legal education, 2013, vol. 19(1), p. 375.] [39: according to art. 9. of croatian legal aid act (off. gaz. 143/13), primary legal aid comprises of general legal information, legal advice, help with the drafting of submissions in administrative procedures and procedures before international courts and organisations, representation before administrative bodies and legal help in alternative dispute resolution.] [40: art. 13. of the statute 2014; see uzelac, a., pravna klinika pravnog fakulteta sveučilišta u zagrebu koncept programa ustrojstva i rada (legal clinic of the faculty of law, university of zagreb the concept of program of its organization and operation), zagreb, 2010., p. 3.] [41: ibid. those would primarily be lawyers, but also other authorised representatives in accordance with law (e. g. union representatives in labour disputes).] [42: according to art. 10. of croatian legal aid act, primary legal aid can be provided if the client applying for legal aid does not have sufficient knowledge to exercise his or her rights, if the client has not received free legal aid elsewhere, if the application is not manifestly unfounded and if the financial background of the client is such that paying for legal help could jeopardize his or her maintenance, as well as the maintenance of the members of his or her household. so any case can potentially be subject to primary legal aid.] [43: art. 16. para. 3. of the regulation 2014; art. 5. of the statute 2014.] [44: ibid.] [45: ibid.] [46: ibid. ] [47: ibid.; art. 4. para 3. of the statute 2014. the idea behind outreach projects is to go outside the central office, located in croatia’s capital and visit other areas of croatia. this decentralisation of legal aid was inspired by norwegian model. see http://gratisrettshjelp.no/testside/jussbuss/ (16/08/2016).] as the law clinic functions to provide assistance to members of especially vulnerable social groups and individuals who are not capable of exercising and protecting their legal rights, it aims to contribute to the overall system of legal aid. it is thus registered as one of the providers of legal advice and assistance at the ministry of justice.[footnoteref:48] this segment of the clinical education, which comprises practical resolution of legal cases in the form of providing legal aid, represents a significant contribution not only to legal education, but also to the community. as a result, the law clinic became one of the major providers of legal aid in croatia. during 2015 and in the first half of 2016 the law clinic has received more than 3,720 cases. the significance of this caseload can be judged on the background of the data supplied by the ministry of justice for the state sponsored legal aid and advice cases. in 2014 there were, altogether, approximately 2,758 legal aid and advice cases, and in the whole of croatia the state gave support for only about 647 legal advice cases.[footnoteref:49] [48: see .https://pravosudje.gov.hr (16/08/2016).] [49: report ministry of justice 2015.] 4.2. organisational structure the law clinic is governed and its work coordinated by the clinical leader, who is a law professor and member of zagreb law school.[footnoteref:50] the administrative affairs of the law clinic are carried out by assistant leaders with the help of student administrators.[footnoteref:51] all the important decisions on the provision of legal assistance in specific cases are brought independently by students[footnoteref:52]. strategic questions about the direction of clinical actions, organisation and other decisions that require the engagement of additional resources or work, are decided at joint meetings by students, in agreement with the clinical leader, his deputies and assistants, academic mentors.[footnoteref:53] [50: art. 17. para. 1. of the regulation 2014.; art. 11. of the statute 2014.] [51: art. 11. para 2., art. 16. of the statute 2014.] [52: one of the students is a reporter in charge of the case and the group is the one deciding on the final opinion. of course, legal opinions are subject to supervision, but supervisor tend to reach a mutual decision instead of simply correcting and amending the students' opinions.] [53: meetings of clinicians are held monthly in the form of the small council. the clinical leader, his deputies, assistants, academic mentors, administrators and students which represent clinical groups discuss important questions of clinical organisation, collaboration with civil society organisations, government agencies, legal practices, as well as presenting and analysing the performance achievements of students in providing of legal aid. also at the meetings current difficulties in the work with which students and their mentors meet are discussed, with the aim of proposing concrete suggestions for their successful resolution. for more information, please see art. 14. of the statute 2014.] the law clinic has clinical groups that serve as working groups.[footnoteref:54] they are independently formed in accordance with characteristics of specific cases and areas to which they pertain.[footnoteref:55] in the beginning the law clinic was operating through three working groups: civil and family law group in which the cases concerning the property and status were handled; administrative and labour law group in which the cases concerning labour and social issues were handled; and criminal law group in which the cases concerning criminal implications in the broader sense (criminal, misdemeanour, disciplinary and similar cases) were handled.[footnoteref:56] however, since this classification of the working groups was too general and less client oriented,[footnoteref:57] at the end of academic year 2010/2011 a new classification of working groups was made. thus, the law clinic now operates in eight working groups: for asylum seekers and foreigners, anti-discrimination and rights of minorities; for the rights of children and family support; for protection and assistance of crime victims; for protection of workers’ rights; for protection of patients’ rights; for public relations and for special cases and projects.[footnoteref:58] [54: art. 13. of the statute 2014.] [55: ibid.] [56: uzelac 2010, p. 4.] [57: the clients started to address the law clinic with specific issues which needed inter-disciplinary approach. e.g. cases dealing with the issue of medical negligence needs to be assessed from a standpoint of criminal law (medical malpractice), civil law (negligence claim/insurance) and administrative law (special administrative procedures for patients). so the law clinic decided to focus on the client’s case in whole and not just one aspect of their rights.] [58: see art. 13. of the statute 2014.] with the growth in its popularity and coupled with the knowledge of the public about its existence, the law clinic has grown considerably. in 2010/2011, initial generation of students who worked in the clinic counted about 20 persons. during 2012-2014, and now in 2015, the number of clinical students rose to 112. this number needs intense engagement of the mentors and supervisors. currently, the law clinic has about 20 academic mentors (selected among the teaching staff and attorneys who are assisting in training of the students), 10 student-mentors (selected among the best clinical students of the past generation).[footnoteref:59] with the exception of people who are exclusively engaged in administration and strategic planning (clinic leader, assistant leaders and student administrators), all other collaborators (students and their mentors) are directly involved in provision of legal information and advice in concrete legal aid cases. [59: the principle of autonomy is one of the cornerstones of the work in the law clinic, not only are the students autonomous in regard to the solving of the cases (subject to supervision), but they also choose their own leaders (student-mentors). they are the ones we feel know their teams the best and who can truly evaluate their colleagues.] 4.3. mentoring the law clinic has academic mentors, chosen among the professors and faculty associates, depending on their interest and knowledge in specific matters of significance for the law clinic.[footnoteref:60] academic mentors monitor the work of their clinical groups, they advise students regarding the direction of their research in solving the legal cases and discuss various legal issues that are needed for the successful providing of legal aid.[footnoteref:61] although mentors are involved in the student’s work, they are not allowed to solve the cases instead of the students, nor are they allowed to impose on students their legal opinions.[footnoteref:62] in addition to academic mentors, the students are also mentored by ‘senior’ students who, after finishing one semester of active work in the law clinic, continue to volunteer within it. [footnoteref:63] [60: art. 12. para 1. of the statute 2014.] [61: ibid.] [62: ibid.] [63: ibid.] external mentors, selected on a voluntary basis among interested members of the legal profession (lawyers, lawyers in ngos and other legal professionals), also participate in activities of the law clinic.[footnoteref:64] they help students with the practical training, mainly by participating in the reception and analysis of specific cases (receiving instructions from the client, identifying the main issues and advocacy strategies, etc.).[footnoteref:65] so far, the law clinic has successfully cooperated with several attorneys specialising in various aspects of the law, lawyers working in ngos and bodies of state administration. [64: ibid., art. 12. of the statute 2014.] [65: ibid.] 4.4. funding the standing financial source for the work of the law clinic is the law school. it covers the basic costs of the law clinic (office space, postage, utilities and the costs of three student-administrators). other costs (including the costs for equipment, promotional materials, field activities, external outreach programs, institutional visits, and occasional honoraria for the academic mentors and coordinators) are covered from the state budget (ministry of justice) and the local community budget (city of zagreb grant). the legal provision grants rights to the law clinic as a legal aid provider to request compensation from the state budget, but the annual value of budgetary funds allocated for the legal aid providers are low and have been constantly decreasing.[footnoteref:66] therefore, the law clinic was in 2010-2011 fully financed from the law school budget and was supported by projects with international institutions, as well as foreign and international organisations.[footnoteref:67] when the projects were initially proposed, the law clinic was setting up its organisation, informing the public about its existence and activities and discussing the format and targets of its activities. in the second half of 2011, the law clinic started with its practical work but, until the end of 2011, it had altogether received approximately 300 cases.[footnoteref:68] the work of the law clinic was difficult inter alia because of the lack of resources for regular work on the cases. although the law school provided some office space to the law clinics, this was a rather limited space shared by several other organisations, with a low supply of computers, printers and other office equipment necessary for office work. the law clinic acquired some of the needed equipment and supplies with the financial support from the law school and other donors (unhcr, world bank). however, the logistics were still insufficient, specifically considering the dynamic growth of the number of cases and students working in the law clinic. [66: art 36. para 1. of croatian legal aid act (off. gaz. 143/13; claa); see european judicial systems edition 2014 (data 2012): efficiency and quality of justice european commission for the efficiency of justice (cepej), council of europe publishing, strasbourg, 2014, p. 77.] [67: in the period of 2011-2014 the zagreb law clinic has succeeded in winning projects with the british embassy, the norwegian embassy, and as well with the european citizens action servis – ecas. see http://klinika.pravo.unizg.hr/medunarodna-suradnja-i-pomoc. ] [68: see http://klinika.pravo.unizg.hr/broj-i-vrsta-predmeta.] in the international project period (2011-2014), the law clinic was able to develop extensive activities in providing legal advice for marginalised groups and the less affluent parts of the croatian population and to properly deliver practical experience to students.[footnoteref:69] coupled with the growth in its popularity and the knowledge of the public about its existence, the law clinic has grown considerably. initial generation counted approximately 20 students who worked in the law clinic. during 2012 and now in 2016, the number of student clinicians has increased over 100 students. the end result is that the law clinic became, in the period of international projects, one of the major clinical legal education programs and providers of legal aid in croatia.[footnoteref:70] [69: ibid.] [70: see ft. 47. this could not have been done without pro bono engagement of the law school staff (young researchers, assistant professors and professors) and legal practitioners (mainly lawyers) who have supported the law clinic from the very beginning.] 5. sustainability of clinical legal education 5.1. global challenges in funding of clinical legal education resources are “a critical issue of the establishment and sustainability of clinics” and, more importantly, they “affect the size of program that can be established”.[footnoteref:71] it is of no surprise that the question of financing clinical legal education often arises in scholarly debates. however, one thing needs to be emphasized before discussing the different funding models. financial challenges will differ depending on the source of faculty funds, so not all debates are applicable to every clinical model. for example, there is research analysing the influence of clinical legal education on the tuition of law schools.[footnoteref:72] this is certainly a very important question for privately funded law schools, however not of major importance for publicly funded law schools, such as the ones in croatia.[footnoteref:73] this needs to be taken into account when reading the about different economic models of law clinics. [71: giddins, j., promoting justice through clinical legal education, melbourne, justice press, 2013, p. 145. available at: www.justice-press.com/e-books/giddings/promoting-justice/projet/promoting-justice-through-clinical-legal-education---jeff-giddings.pdf (17/08/2016).] [72: the answer is negative. research shows that 84% of law schools already have the capacity to provide the students with clinical legal training, so there is no need for them to increase the amount of tuition. kuehn 2014, p. 39.] [73: the tuition students pay is dependent on the ects credits. each university is autonomous in regard to the rates of each ects point, however rates are determined in accordance with the recommendations of the ministry of science, education and sport. this means that faculty’s decision to include law clinic in the program could hardly influence the rates determined by university. see rules on the tuition rates of university of zagreb (croatian only) of 13 march 2013, available at: www.unizg.hr/fileadmin/rektorat/o_sveucilistu/tijela_sluzbe/senat/sjednice/2012_2013/pravila_participacije_03.2013._odluka_senata-corr_scan.pdf (16/08/2016).] the costs of law clinics depends on the status of the faculty teaching the course, student-to-faculty ratio, the number of credit hours awarded, etc.[footnoteref:74] katz adds faculty compensation costs and the complexity of the clinic to this list[footnoteref:75]. he explains that there are three important variable costs: professor labour costs, other labour costs (e.g. for hiring administrative stuff, outside attorneys etc.) and other expenses (e.g. travel, case management software etc.).[footnoteref:76] of course, different types of experiential legal education models are faced with different costs.[footnoteref:77] [74: swords, p. d. & walwer, f. k., cost aspects of clinical education, in: clinical legal education: report of the association of american law schools—american bar association committee on guidelines for clinical legal education, 1980, pp. 139-143., cited in joy 2012, p. 327. katz argues that such data is out-of-date (katz 2015, p. 34).] [75: katz 2015, p. 45.] [76: ibid., pp. 36-38. ] [77: ibid., p. 44.] recent increase in market orientation and liberalisation of traditionally public education systems[footnoteref:78] will influence the need of alternative funding opportunities for publicly funded law school clinics. the general lack of support on the university and government level can be generally solved by way of using trusts, cooperative agreements, international resources, where available, as well as by using the private bar.[footnoteref:79] [78: which is certainly one of the trends characteristic for europe (jongbloed, b., funding higher education: a view from europe, funding higher education: a comparative overview, organised by the national trade confederation of goods, services and tourism (cnc) brasilia, october 13, 2008, p. 6). available at: https://www.utwente.nl/bms/cheps/summer_school/literature/brazil%20funding%20vs2.pdf (16/08/2016)] [79: the need for finding the appropriate funding alternatives is the strongest in developing countries. maisel, p., expanding and sustaining clinical legal education in developing countries: what we can learn from south africa, fordham international law journal, vol. 30, issue 2, pp. 388-398.] an alternative solution for clinical sustainability is to adapt the clinical programme. for instance, a slightly cheaper alternative is to organise different types of externships.[footnoteref:80] however, if not planned carefully, they will not give the same effects as in-house clinical programs.[footnoteref:81] it is thus prudent to try to minimise the costs elsewhere, without risking the quality of law school education, e.g. by electrification of library collections or eliminating under-enrolled courses.[footnoteref:82] [80: joy 2012, pp. 321.] [81: although practitioners are well qualified to teach the students the necessary skills, academic mentoring and close supervision are required to achieve optimal education goals. ibid., pp. 322-323. ] [82: ibid., pp. 329-330.] 5.2. financial challenges of the law clinic the law clinic is today extremely well received by students, who regularly apply for work in the law clinic in numbers bigger than that of available places. it also enjoys a high reputation among numerous legal aid clients in zagreb and in other areas which have been reached by project activities so far. unfortunately, the law clinic faces several challenges to its future development as a legal aid provider. 2010 2011 2012 2013 2014 2015 2016 primary legal aid 46,000 € 20,150 € 26,700 € 21,350 € 193,150 € 193,150 € 93,250 € secondary legal aid 180,000 € 25,500 € 140,900 € 235,350 € 161,315 € 366,325 € 306,380 € total 226,000 € 45,650 € 167,600 € 256,700 € 354,465 € 559,473 € 399,630 € table 1: legal aid funds in croatia[footnoteref:83] [83: the presented data is approximation of the funds granted in croatian kuna (hrk) and does not represent a precise amount of funds granted. the data was presented on eleventh public and private justice course in dubrovnik during panel “challenges in clinical legal education sustainability of clinical programs” by lidija zajec, advisor in the minister’s cabinet in the ministry of justice. see the official web page of the course http://www.alanuzelac.from.hr/text/iuc-course.htm. ] the most important challenge is the dysfunctional financing of the legal aid system, which essentially lacks relevant willingness to commit appropriate state funds for legal aid and advice. table 1 clearly shows that legal advice and primary legal aid has mostly been underfunded over the years. as these funds, reserved for primary legal aid, are almost non-existent, the sustainability of some clinical activities, such as mobile clinics, depend on the ability to find another way of funding. in the light of the economic crisis, there is no real state willingness to commit appropriate funds that would improve quality of access to justice and improve practical education for law students. the maximum budget that may be granted to the law clinic in 2016 according to the public tender (app. 10,000 €) will be sufficient to finance less than 30% of its real needs. the approximate costs of running the law clinic[footnoteref:84] are shown in table 2: [84: the table 2 shows a rough estimate of the funds the law clinic needs at yearly basis. this approximation does not include in-kind contributions which some of the partners give. e.g. it is impossible to estimate the value of in-kind contribution of lawyers engaging in supervision of legal opinions.] expenses (per year) approximate amount in eur 1. organisation of outreach projects travel and sustenance costs for students coordination 11,000 2. administration of the work of the law clinic 10,000 3. office costs monthly rent utilities costs office supplies 10,000 4. publications pro bono – official newsletter student manuals advertisement 5,000 5. organisation of the annual round table regarding clinical legal education in dubrovnik (within public and private justice conference, held in may/june every year) 1,000 # total costs 37,000 table 2: the approximation of costs for running the law clinic if the law clinic wishes to maintain its goal, to enable as many citizens to access to justice as possible, then it cannot limit its work to the activities which can be funded by the government. namely, when the law clinic started its work, it was located in a very modest office, with very limited space both for students and for clients. if one compares the years 2011 and 2015 of the law clinic, discussed under title 4.4. funding, one can notice that the number of students and clients has increased more than five times. it is only natural that the costs of the project rose along with the new responsibilities. it is thus of the utmost importance to locate the funds elsewhere, since the necessary public funds are not available. at the beginning, the international grants were a chance to receive at least part of the very much needed funds that covered the activities that could not be sponsored by the framework organisation, the law school. with the help of those grants, the law clinic provided practical legal education to students and advice and assistance to people outside of zagreb, who are most socially vulnerable. it seems that the law clinic, with the support of the law school and international grants, has reached the point where its prospects were good, but the continuation of work on financial sustainability is needed to secure clinical activities. therefore, projects with state and local community are important to secure some external funding for the essential legal aid activities of the law clinic. without those funds, the law clinic will hardly be able to keep up with the expectations of the clients which also means that less students will be given the opportunity to engage in its work. conclusion a central goal of clinical legal education is to provide professional education in the interests of justice and it poses new challenges regarding the improvement of student education.[footnoteref:85] apart from its significant role in legal education, the existence of law clinics is also very important in terms of enhancing the legal aid system, by broadening the cycle of legal aid providers to which underprivileged citizens can turn when they are in need of legal aid. moreover, clinical legal education has a positive impact on the strengthening of public policies, of exercising constitutional principles of equality before the law, the right of access to justice and a fair trial within a reasonable period.[footnoteref:86] these important goals, which clinical legal education aims to achieve, are closely linked and should be constantly improved by powering the law school’s curriculum. therefore, to maintain the positive development of clinical legal education, law schools have to retain strong financial resources for work of law clinics and to develop the cost model for deans and curriculum committees as they think about how to manage and expand their schools’ experiential offerings.[footnoteref:87] that is the only way to keep track with the development of modern clinical legal education, which aims to support students interested in gaining theoretical and practical experience through provision of legal aid, in the interest of the public benefit.[footnoteref:88] [85: wizner 2002, p. 1935.] [86: preložnjak 2013, p. 380. by informing the clients about their rights, law clinics can correct the imbalance between the parties of different socio-economic background. they can advise the clients when to initiate the court proceedings, as well as advise them on certain procedural issues within the proceedings, if they have already been initiated.] [87: katz 2015, p. 29.] [88: ibid.] as a final remark we have to stress that the combinations of financial investments of state, local community and law schools are crucial for financial sustainability of clinical programs. to achieve that goal the law clinic has to periodically raise awareness among the whole community, highlighting the importance of financial support of clinical legal education and its impact, not only on education of future lawyers but, also on legal aid system which is, and should be, the first line of defence in providing equal access to justice for all.[footnoteref:89] [89: now there is research showing the importance of law clinics in that regard. see drummond, o. & mckeever, g., access to justice through university law clinics, ulster university law school, 2015, p. 32. available at: www.ulster.ac.uk/lawclinic/files/2014/06/access-to-justice-through-uni-law-clinics-november-2015.pdf (24/10/2016).] 136 special issue: european network for clinical legal education 6th conference pro bono legal work: the disconnect between saying you’ll do it and doing it vinny kennedy, northumbria university, uk abstract: pro bono is a significant component of one of the many professional obligations a lawyer has to fulfil for the public good. it is evident that this is acknowledged by not only those who practice law, but those who are training to be a lawyer and by the professional bodies. despite this acknowledgement there is a clear disconnect between the importance placed on delivering pro bono services and the actual delivery of the same. there have been previous suggestions that in order to increase the commitment to pro bono work, there is a need to mandate its delivery. however, the notion of mandatory pro bono work has always been dismissed and therefore it is now appropriate to consider other ways in which a commitment could be encouraged and adopted. this paper will consider the reasons why the profession, at all stages, considers pro bono to be such an important social function and whether such motivations are sufficient to sustain a commitment throughout a lawyer’s career. such considerations will be made from the perspective of a solicitor in england and wales, as this is connected to the author’s own pro bono experience. the paper will also consider why there is a disconnect, and what the rationale is for non-participation in pro bono work once in practice. it will consider the key barriers to full participation and recommend action that ought to be taken in order to develop a pro bono culture and therefore commitment. key words: pro bono solicitors professional obligations public service introduction pro bono is considered to be an important element of being a lawyer, it sets the profession apart from others and it is acknowledged that lawyers have a professional obligation to support and deliver pro bono services. it is understood that ‘… lawyers have reasonable moral duties to employ their specialised legal knowledge and skills to help people who need but lack access to the law’.[footnoteref:1] at a time where public funding is ever decreasing the importance that pro bono plays in providing access to justice is increasing. however, pro bono is not considered as a replacement to government funding and intervention, and rightly so. currently pro bono work is delivered on a voluntary basis,[footnoteref:2] in an ad hoc manner and it is unclear the extent to which such services are being delivered. what is clear is that throughout the various stages of legal practice, from student to retirement, there is an understanding that lawyers should provide pro bono services. [1: reed elizabeth loder, ‘tending the generous heart: mandatory pro bono and moral development’ (2001) 14 gjle 459, 463] [2: it is considered as voluntary on the basis that there are no statutory requirements to undertake pro bono work, as there is in the us. however, it is noted that for some undergraduate law degrees students are required to undertake a clinical legal education module, which may incorporate pro bono work, and as such they are ‘required’ to undertake the same.] despite this understanding, there seems to be a disconnect between the assertion of pro bono work as an important contribution to society that lawyers ought to provide, and the reality of such provision. it is suggested that if we continue to have a purely aspirational approach to pro bono obligations, as is currently the case, there will be insufficient participation as a result.[footnoteref:3] statistics demonstrate that commitment to pro bono work amongst the profession remains low.[footnoteref:4] this paper will explore the tension between this disconnect. it will consider the motivations of higher education in exposing students to pro bono work, and the impact that this may have on the student’s future commitment to such work. it will also highlight the approach taken by the professional bodies, namely the law society of england & wales, suggesting that there is a significant push to encourage the profession to increase contributions. the paper will then consider the actual contribution by the profession, namely practising solicitors, and what barriers may exist that could prevent participation. finally, it will provide recommendations of the steps that need to be taken in order to begin to address the disconnect. such recommendations include widening the definition of pro bono so as to include the actual perceptions by the profession of what pro bono might entail; introduce a requirement of mandatory reporting of contributions to pro bono work by the profession; and to commence a cultural change in the view taken by the profession as a whole to pro bono work versus billable hours. [3: rima sirota, ‘making cle voluntary and pro bono mandatory: a law faculty test case’ (2018) 78 l law rev 547-595, 567] [4: lawworks, ‘lawworks clinics network report april 2016 – march 2017’ (dec 2017) < https://www.lawworks.org.uk/sites/default/files/lawworks%20clinics%20report%202016-17.pdf > date accessed 21 november 2018] the impact of defining pro bono it is commonly understood that pro bono publico means for the public good and by extension it is viewed as ‘… the provision of free legal advice for the public good’.[footnoteref:5] the joint pro bono protocol for legal work (joint protocol) states that ‘pro bono work means legal advice or representation provided by lawyers in the public interest, including … [to those] … who cannot afford to pay and where alternative means of funding are not available’.[footnoteref:6] this definition has been endorsed by the law society of england & wales, the bar council of england and the chartered institute of legal executives. [5: law society of england & wales, the pro bono charter (2017) 1] [6: law society, pro bono manual a practical guide and resource kit for solicitors (nov 2016) 8] this definition appears to have been adopted by some of the larger firms operating within england & wales such as dla piper and shoosmiths, who have incorporated the definition in the joint protocol within their own policies.[footnoteref:7] however, research undertaken in 1998 suggested that there were various other interpretations of what pro bono could entail. although this research was undertaken twenty years ago, and before the joint protocol was introduced, it could be argued that some of these alternative definitions are still prevalent today. such alternative definitions include: [7: dla piper, pro bono guidance <www.dlapiperwin.com/export/sites/win/dowloads/win_pro_bono_guidance.pdf> date accessed 31 august 2018 and shoosmiths, pro bono policy statement < www.shoosmiths.co.uk/about-us/pro-bono-policy-statement-13361.aspx > date accessed 31 august 2018] · ‘… the provision of free first interviews …’ · ‘… charitable work … even though this could cover non-legal activity, including fundraising for a local charity …’ · for legal aid lawyers, pro bono also includes ‘… finishing legal aid cases for free when funding had run out or providing representation outside the scheme.’ [footnoteref:8] [8: lisa webley, ‘pro bono and young solicitors: views from the front line’ 3(2) le 152-168, 154 ] in addition to having a variety of domestic definitions, there is also variation in definitions based upon jurisdiction. we are familiar with the mandatory requirements of pro bono activity in the us, and so in the american bar association’s model rule 6.1 pro bono is defined as ‘… the provision of a minimum of 50 hours of legal services to persons of limited means … contributions to law reform as well as voluntary financial contributions to organisations which support disadvantaged members of society’.[footnoteref:9] within this requirement it is stated that an activity will not be considered as pro bono if a student has gained academic credit. in this instance it would largely decimate contributions to pro bono by students in england & wales where the opportunity to take part in pro bono activities are within a law school legal clinic, where pro bono is embedded into the curriculum and academic credit is awarded. [9: alpheran babacan and hurriyet babacan, ‘enhancing civic consciousness through student pro bono in legal education’ (2017) 22(6) the 672-689, 672-673] in light of the above, it is important to appreciate that despite the formalised definition in the joint protocol individuals will have their own interpretations. this has a significant impact upon the perception of the opportunities available to participate in pro bono activities once in practice. it may therefore be the case that a large proportion of the legal profession contribute their time to undertake pro bono work which is not formally recognised. furthermore, the variations in definitions also make it difficult to compare between jurisdictions and so lessons learnt in a different jurisdiction is not directly applicable to any other. this is supported by mcleay[footnoteref:10] who suggests that it is difficult to compare the volume of pro bono work around the world because of the variations in definitions and the lack of consistent reporting of such work. nevertheless, this paper will draw on experiences in the us and australia for illustrative purposes. [10: fiona mcleay, ‘the legal profession’s beautiful myth: surveying the justifications for the lawyer’s obligation to perform pro bono work’ (2008) 15(3) ijlp 249-271, 251] professional bodies standpoint tewksbury and pedro state that ‘… what characterizes all pro bono legal work is a commitment and professional obligation to provide legal services for the betterment of society’.[footnoteref:11] this is supported by the law society of england wales who within their pro bono policy (the policy) state that pro bono work is an ‘… exceptionally important contribution to society …’[footnoteref:12] the provision of pro bono services is therefore considered to be a professional obligation, which is endorsed by the professional bodies in england and wales. in particular, the law society have developed significant guidance to promote pro bono amongst the legal profession (namely solicitors). they have created the pro bono charter (the charter), they have contributed to the pro bono joint protocol on legal work and have implemented a pro bono policy (the policy). it is therefore clear that the professional bodies value and encourage individuals to undertake pro bono work. [11: richard tewksbury and elizabeth pedro, ‘giving back and helping others: pro bono legal work by young attorneys’ (2000) 12(4) cjs 409-422, 410] [12: law society of england and wales, pro bono policy (undated) < https://www.lawsociety.org.uk/support-services/practice-management/pro-bono/pro-bono-policy/ > date accessed 14 november 2018] within the policy it states that the objectives of the law society[footnoteref:13] in encouraging pro bono activities include: to promote the social contribution made by the profession; to improve access to justice and to meet unmet legal needs; to support solicitors to undertake pro bono work; and to strengthen existing networks to enable a collective response to the legal aid, sentencing and punishment of offenders act 2012.[footnoteref:14] under the charter the law society recognises that ‘… at all stages throughout their career, solicitors have the capacity to use their professional expertise to help those with legal needs and [they] will strive to encourage a commitment to pro bono throughout the solicitor profession’.[footnoteref:15] this commitment is reflected in the joint protocol, which highlights that ‘commitment to the delivery of pro bono work is encouraged throughout a lawyer’s professional life, as a student and in practice, through to and including retirement’.[footnoteref:16] for this to be supported it is suggested that pro bono champions are required through all stages of the profession so as to ensure appropriate role models exist for the promotion of pro bono work.[footnoteref:17] [13: law society of england and wales. thereafter any reference to the law society is that of the law society of england and wales.] [14: pro bono policy (n12)] [15: the pro bono charter (n5) ] [16: joint pro bono protocol for legal work < https://www.lawsociety.org.uk/support-services/practice-management/pro-bono/the-pro-bono-protocol/ > date accessed 14 november 2018] [17: loder (n1) 500] although the guidance makes it clear that pro bono is not a replacement to legal aid, it does focus significantly on the commitment to improve access to justice, and to meet unmet legal need. abbey and boon go as far as to suggest that ‘if government cannot or will not guarantee [access to justice], a profession which controls access has a social responsibility which it should not seek to evade.’[footnoteref:18] there is therefore a tension between the professional bodies’ objectives to promote pro bono work, which by extension includes access to justice, and the views of the profession, who become resentful of having to fill the justice gap that ought to be addressed by the government. certainly in the us it has been argued that the professional bodies’ approach to the delivery of pro bono work is aspirational, and as such actual participation remains low.[footnoteref:19] that could apply to england & wales, particularly when consideration is made to the actual hours contributed to pro bono by the profession. [18: robert abbey and andy boon, ‘the provision of free legal services by solicitors: a review of the report of the law society’s pro bono working party’ (1995) 2 ijlp 261-280, 277] [19: sirota (n3) 567] the attitude of the profession sossin suggests that ‘if access to justice includes as one of its components access to lawyers, then it is appropriate to look to the legal profession for leadership in advancing access to justice in this sense’.[footnoteref:20] the profession does not appear to be in dispute with the premise that the provision of pro bono work is a professional obligation. this obligation is articulated by hoffman, who confirms that ‘because access to legal services is important, and the position of lawyers is quite privileged, some conclude that the legal profession has an obligation to ensure that everyone has access to the legal system’.[footnoteref:21] the commonality in the arguments put forward for the justification for delivering pro bono work therefore seems to be that in order to facilitate access to justice, lawyers should make themselves accessible whether this be charging for their services, or providing it free of charge. this perception is perhaps as a result of the historical viewpoint of what a lawyer is and their standing in the community. lawyers were once seen as serving for the public good and given their monopoly in providing legal services they are best placed to provide assistance where required.[footnoteref:22] as a result of this privileged position, it is strongly felt amongst the profession that lawyers should not be allowed to escape this professional/ethical responsibility.[footnoteref:23] [20: sossin referred to in francesca bartlett and monica taylor, ‘pro bono lawyering: personal motives and institutionalised practice’ (2016) 19(2) le 260-280, 267] [21: elizabeth hoffman, ‘legal education and early career mentoring: mid-career attorneys’ pro bono commitment’ (2007) 14(1) ijlp 81-96, 83] [22: mcleay (n10) 254] [23: abbey & boon (n18) 277] however, it could be argued that the traditional concept of a lawyer is no longer applicable. it is questionable as to whether the practice of law is still considered as a profession, or whether it has transformed into a business. there has been an increase in the deregulation of lawyers, the solicitors regulation authority (sra) have shifted to an outcomes focused approach and the onus is very much on the individual to comply with their professional obligations. in addition, and more significantly, there has been an increase in the areas of law that is no longer considered to be a regulated activity, which requires supervision by the sra. for example, there are licensed conveyancers; there has been an increase in will writing companies; and with the introduction of alternative business structures there are a number of companies that offer legal services (such as the co-op). further to this, there are an increasing number of in-house legal departments. [footnoteref:24] mcleay also highlights that ‘… the heterogeneity of lawyers as a group and the shrinking of many of their associated monopolistic practices makes their pivotal role as the holders of keys to the justice system less secure …’[footnoteref:25] to say that it is only the ‘legal profession’ that offer legal services is no longer the case, and therefore it raises the question of whether it should be the sole responsibility of the legal profession to provide access to justice in the way that has been identified above. [24: abbey & boon (n18) 261-263] [25: mcleay (n10) 263] the notion of legal services being a business is also supported by academics and employers who emphasis commercial awareness as a key graduate attribute. understanding how a law firm or barrister chambers work as a business is highly regarded by employers. this further contributes to the debate as to whether the profession should in fact be the sole provider of pro bono services. if operating purely as a business, it is clearly not a profitable activity to undertake work free of charge. when compared to other professions such as accountants, there are no equivalent obligations (although the argument regarding access to justice remains, for which there is perhaps no equivalent in many other professions). some argue that ‘the responsibility of ensuring access to justice [should rest] with government and that the profession’s acceptance of an ethical responsibility to do pro bono may weaken the state’s obligation to make adequate provision’.[footnoteref:26] however, others view pro bono work as enabling the individual to reconnect with the professional elements of the role of being a lawyer as a profession, rather than as a business.[footnoteref:27] [26: abbey & boon (n18) 265] [27: mcleay (n10) 254] irrespective of whether it is the sole responsibility of lawyers to provide pro bono services, many still consider it to be an important element of being a lawyer. it is acknowledged that there are many benefits to undertaking pro bono work, not only to the individual receiving the assistance, and the local community, but to the lawyer providing that service. indeed ‘… pro bono legal work is seen as a valued and valuable component of a career by the majority of young lawyers’.[footnoteref:28] rhodes ‘describes many positive personal impacts that pro bono participation may have on lawyers, including alleviating depression and reviving sagging professional morale’.[footnoteref:29] davis also suggests that in addition to receiving emotional benefits from undertaking pro bono work, ‘… the experiences associated with doing pro bono work can re-shape their political attitudes’.[footnoteref:30] the more cynical view is that undertaking pro bono work is for self-promotion, particularly by firms who wish to demonstrate their compliance with social responsibility. in particular criticisms suggest that firms undertake pro bono work in order to improve their image, to help retain high quality staff, and to recruit high achievers.[footnoteref:31] indeed it has been reported that firms use pro bono to market themselves to graduates, perhaps on the basis that they believe that graduates value the delivery of pro bono work. however, within the job description and attributes, a commitment to pro bono is not a criteria, inferring that employers are not concerned as to whether or not a candidate is in fact committed to pro bono work.[footnoteref:32] [28: tewksbury & pedro (n11) 417] [29: rhodes referred to in martha davis, ‘access and justice: the transformative potential of pro bono work’ (2004) 73 f law review 903, 907] [30: davis (n47) 908] [31: mcleay (n10) 251] [32: linden thomas, ‘it puts the law they’ve learnt in theory into practice: exploring employer understandings of clinical legal education’ in l thomas, s vaughan, b malkani and t lynch (eds), reimagining clinical legal education (hart 2018) 138] many law firms do, however, see the benefit of their staff undertaking pro bono activities. in australia, it has been suggested that the increase in the number of much larger firms has shifted the obligation from the individual to the firm.[footnoteref:33] this shift in responsibility can be seen in england & wales, where the top 10 firms[footnoteref:34] have dedicated pro bono initiatives and have integrated pro bono work within their day-to-day activities. however, it is also the case that although participation in pro bono work may be increasing and becoming more widespread, the actual time spent delivering pro bono work is relatively low.[footnoteref:35] mckeown argues that ‘… at a time when demand, or at least a need, for pro bono legal services is increasing, the percentage of solicitors providing such services is decreasing’.[footnoteref:36] there are some stark statistics that reveal the actual, reported, contribution to pro bono work by the profession. webley identified that ‘twenty-seven percent … of the pro bono active profession carried out less than 2 hours’ pro bono work a month …’[footnoteref:37] in their 2016-2017 report lawworks confirmed that ‘last year 6,000 individuals volunteered across the lawworks clinics network, a 24% increase on the previous year’.[footnoteref:38] this may be so, but given that there are currently 146,625 practising solicitors in england & wales,[footnoteref:39] that only represents approximately 5% of the population of practising solicitors. it should perhaps be noted that these statistics are reflective of activities that are reported, and based on an earlier discussion, not all pro bono work is therefore being reported. nevertheless, it does demonstrate a disconnect between the importance of pro bono work advocated by the profession, and the commitment given to pro bono work. [33: mcleay (n10) 250] [34: according to the lawyer uk 200 2017 and based on annual turnover < https://www.prospects.ac.uk/jobs-and-work-experience/job-sectors/law-sector/top-uk-law-firms > date accessed 21 november 2018] [35: mcleay (n10) 251] [36: paul mckeown, ‘pro bono: what’s in it for law students? the students’ perspective’ (2017 24(2) ijcle 43-80, 47] [37: webley (n8) 159] [38: lawworks (n4) ] [39: solicitors regulation authority < https://www.sra.org.uk/sra/how-we-work/reports/data/population_solicitors.page > date accessed 21 november 2018] if students value undertaking pro bono work within their undergraduate degree (discussed below); if the professional bodies encourage individuals to participate throughout their legal career; and if employers say they believe it to be a professional obligation why is there a lack of commitment from qualified solicitors? reasons cited for not undertaking pro bono work whilst in practice include: lack of experience/knowledge in the law, lack of time, limitations imposed by regulation, and not being aware of the opportunities available.[footnoteref:40] it is the case that regulations may restrict, even prevent, participation. in particular the joint protocol states the following: [40: these appear to be the overriding reasons for lack of participation, which have been identified in numerous studies including mckeown (n16) 45 and tewksbury & pedro (n29) 417] 2.5 the pro bono legal work should only be undertaken by a lawyer who is adequately trained, has appropriate knowledge, skills and experience and, where necessary, is adequately supervised for the work in question. 2.6 … minimum level of legal expertise and experience as would be required if that particular work in question was paid for. 2.9 pro bono legal work must not be undertaken without appropriate insurance. whilst it is clear that these measures are required to protect the client/consumer, it is also understandable that they can form a barrier to participation by lawyers who lack support from their firm to undertake such work. those in this position often dedicate their personal time and funds to providing pro bono services, and are aware that such dedication will not be rewarded by their employer.[footnoteref:41] therefore, to dedicate additional hours outside of the standard contractual obligations requires a significant commitment. therefore, the lack of participation in pro bono work can be attributed to the prioritisation afforded by the employer to such work.[footnoteref:42] this is highlighted by bartlett & taylor who identified that although ‘our junior respondents were … inculcated with the spirit of pro bono, they knew they must carefully manage their hours with an eye to the corporate imperatives of their employers’.[footnoteref:43] [41: webley (n8) 277-278] [42: tewksbury & pedro (n11) 147] [43: bartlett & taylor (n20) 276] there seems to be a general sense that pro bono work is not valued as the equivalent to billable hours, and although the profession considers pro bono work to be important, yet again it does not appear to reflect the reality. it is suggested that in order to increase a commitment to pro bono work by practising solicitors, firms need to be willing to ‘… view pro bono as a partnership between themselves and their staff, if they allow them time, provide them with supervisory support and offer sufficient recognition for their efforts’.[footnoteref:44] this viewpoint is reflected in a response within the study undertaken by bartlett & taylor, where a respondent commented as follows: [44: webley (n8) 168] i think the bottom line is, it has to be work which has a value, that people aren’t being punished for doing, and by that i mean if you’re in a firm and the structure in the way in which lawyers are assessed is they write down things on a time sheet, pro bono has to be part of that, it’s got to be treated as real work … it’s got to be actually seen as being part of someone’s day to day practice as opposed to some special added extra that you’re meant to do when all the other work is finished.[footnoteref:45] [45: bartlett & taylor (n20) 274] this would potentially be difficult for small-medium sized firms whose profit margin is prioritised. as identified earlier, the current top 10 firms in england & wales are already integrating pro bono within the day to day activities of their solicitors. however, the opportunity or ability to undertake pro bono work is dependent on the ethos and commitment of the firm itself. where there is a ‘… non-existent programme or the [lack of a] time recording system [it] meant pro bono work was hard to undertake and was not encouraged by the employer’.[footnoteref:46] furthermore, webley argues that ‘high street practitioners were more likely to receive a strong signal from their firm, either being encouraged to carry out pro bono legal services … or discouraged from doing so …’[footnoteref:47] despite the barriers placed on practitioners there is a sense that given the opportunity to do so solicitors do want to take part in pro bono work.[footnoteref:48] there is therefore scope to increase and develop commitment to pro bono work that is reflective of the importance placed on undertaking the same. [46: bartlett & taylor (n20) 277] [47: webley (n8) 157] [48: tewksbury & pedro (n11) 419] legal education and pro bono if there is scope to develop a pro bono commitment, this may well need to start at the beginning of an individual’s legal career. it is therefore prudent to ascertain whether such a commitment could be taught, or inculcated within an undergraduate law degree. contribution by law schools higher education institutions often place great emphasis on the provision of clinical legal education (cle) within which pro bono is featured. there is an argument suggesting that there is a distinction between cle and pro bono work, whereby the former is embedded into the curriculum and focuses on the development of skills and the teaching of professional obligations.[footnoteref:49] although the intricacies of defining cle and pro bono is beyond the scope of this paper, it is acknowledged that differences in definitions generally exist. nevertheless, there are some overlaps between cle and pro bono activities offered in law schools, and so this paper will consider, in the more general sense, students providing a legal service free of charge to the general public. [49: babacan (n9) 676] grimes and musgrove suggest that pro bono enables students to ‘… develop their commitment to, and understanding of, professional values, which should in turn lead to their active involvement in pro bono work later in their professional lives’.[footnoteref:50] participation in such activities is multi-faceted. not only does it provide students with an opportunity to enhance their employability skills but also enables them to contribute to access to justice through the provision of legal services. it is the first stage to legal training and therefore it also introduces professional practice to students, allowing them to ‘try before they buy’. dignan and others identify the increase in the number of law schools offering students pro bono and clinical work within the undergraduate law degree, confirming that in 2014 ‘over 70% of uk-based law schools have clinics’.[footnoteref:51] there is therefore great potential for the desired outcome, referred to above, to be realised. there is plenty of opportunity for law students to be exposed to the harsh realities of life and to appreciate the struggles experienced by others when trying to access the law. as such, there are numerous opportunities for students to develop altruism, which they can continue to develop in their professional careers, and which motivates them to continue to participate in pro bono work. [50: grimes and musgrove quoted in babacan (n9) 673] [51: frank dignan, richard grimes and rebecca parker, ‘pro bono and clinical work in law schools: summary and analysis’ (2017) 4(1) ajle 1–16, 1] however, this idealistic impact of pro bono work upon an undergraduate student is perhaps unrealistic. not only are law schools motivated to provide these opportunities for reasons of access to justice, but also for reasons of ‘… the consumerization of legal education, the employability (or otherwise) of graduates entering a competitive job market and, possibly, an increasing recognition that effective learning requires an active engagement by students in the educational process’.[footnoteref:52] these factors impact upon the provision of pro bono work, which could either be voluntary or compulsory (as an academic credit bearing module); it could be ad hoc depending on the demands of the local community, or sustained as part of a student legal clinic; and it could be focused on social justice or simply exposing students to legal work experience. the conclusions drawn by babacan and babacan in 2017 was that ‘… unstructured experiences in student pro bono is not likely to result in the social transformation necessary to instil a commitment to providing access to justice and service to disadvantaged groups following graduation’.[footnoteref:53] mckeown further argues that having pro bono in a legal clinic as an assessed component of a degree leads to extrinsic motivation and as such it will not lead to an inherent desire to continue to undertake pro bono work once the ‘reward’ of the grade has been given.[footnoteref:54] the ideal also relies on academics, who are potentially seen as mentors, actively encouraging students to build a pro bono ethic. for this to occur there are several assumptions that have to be made, including; that the academic is/was a practitioner, that they actively take part in pro bono activities themselves and that whilst in practice they had a positive experience of pro bono work. if this is present, students could potentially mirror this behaviour and develop a pro bono ethic to take forward to their professional lives. hoffman suggests that ‘having a group of teachers and/or mentors who confirm the importance of pro bono might be critical in attorney’s continued commitment to pro bono work’.[footnoteref:55] therefore, although law schools appreciate the importance of pro bono work, beyond graduation, there are no incentives for a law school to ensure that a student continues to undertake pro bono work. [52: dignan (n51) 1] [53: babacan (n9) 673] [54: mckeown (n36) 51] [55: hoffman (n21) 85] student motivations there have been several studies that consider student motivations in undertaking pro bono work.[footnoteref:56] in a study conducted by rhodes, and cited by mckeown, ‘only 31% of the respondents indicated a desire to promote social justice ...’[footnoteref:57] as being a reason for undertaking the same. in mckeown’s study, it was reported that ‘respondents … valued the skills development and enhanced employment prospects rather than the altruistic benefits of carrying out such work’.[footnoteref:58] this therefore suggests that students are motivated by personal gain, and view their pro bono experiences at undergraduate level as a form of work experience. given the current job market, it is understandable that students want to ensure that they provide themselves the best opportunity to gain employment once they have graduated. this, in part, is ensuring that they have the requisite skills to be ‘job ready’, something which employers have expressed concerns about. hoffman argues that although law schools encourage students to appreciate pro bono work ‘… law students hear not only the words within the classroom, but also the external pressures of the job market, their student debt, and the stress of billable hour minimums’.[footnoteref:59] this is understandable, however, it does little to contribute to a commitment to pro bono work. [56: an example of which is paul mckeown, ‘law student attitudes towards pro bono and voluntary work: the experience at northumbria university’ (2015) 22(1) ijcle 22] [57: mckeown (n36) 11] [58: mckeown (n36) 22] [59: hoffman (n21) 84] in essence, a student may undertake pro bono work for practical reasons, whereby they wish to develop their skills and enhance employability. alternatively, they can be motivated by tactical reasons, where they see the benefit of promoting the image of lawyers and the institution that they attend; or for ethical reasons where they feel that it is the profession’s moral obligation to provide such services.[footnoteref:60] the latter is somewhat reflective of the profession’s attitude towards pro bono work, as previously discussed. despite these differing motivating factors, it is also the case that students do appreciate the importance of pro bono work within the profession and the need to provide a public service.[footnoteref:61] yet again, the importance of pro bono is emphasised, but research (as highlighted) suggests that the number of individuals that are committed to pro bono on a long-term basis is low. it is perhaps limited to those that had entered higher education with a desire to undertake such work, or to those who ‘… originally become exposed to pro bono work because it is mandated, or they wish to achieve a good grade, [where pro bono is embedded within the curriculum, who] … may then experience the intrinsic value of the work itself thus shifting their own values’,[footnoteref:62] which supports continuation of pro bono work once qualified. in a study conducted by bartlett and taylor,[footnoteref:63] a respondent suggested that their motivation to undertake pro bono work once in practice stemmed from the fact that rather than having to pay tuition fees, they had received a grant. on this basis, they felt that as society had paid for their education, it was appropriate for them to give back to society by providing pro bono services. presumably, the introduction of tuition fees will have had an impact on students perception of what they feel they owe society, or what society owes to them. [60: mckeown (n36) 49] [61: mckeown (n36) 58-60] [62: mckeown (n36) 53] [63: bartlett & taylor (n20) 270-271] student attitudes to pro bono work can be demonstrated from the reflections of students in the birmingham law school pro bono group (the group).[footnoteref:64] following activities undertaken in the 2017 national pro bono week four students reflected on their involvement within the group and the activities they had been involved in. they commented upon the practical legal experience that pro bono work provides to students. they also identified that pro bono work enables them to network with the profession, presumably for future employability purposes, and that they could learn and develop their skillset further. however, they also recognised that their involvement in the group contributed positively to the local community who had nowhere else to access such assistance. although they were able to identify the positive impact of pro bono work, whether their involvement in the group instilled a long-term commitment to pro bono work is open to question. nevertheless, students who undertake pro bono work as part of their undergraduate law degree often comment upon their experiences positively, and those students tend to express ‘… a stronger opinion that students should undertake pro bono work as a mandatory part of their programme of study …’[footnoteref:65] mandating pro bono work at undergraduate level may not have the desired effect of instilling a long term commitment to pro bono. loder[footnoteref:66] suggests that students who have a predisposition to pro bono work will not be adversely affected if they are required to do pro bono work on a mandatory basis. however, where a student did not have this pre-existing desire to do pro bono work, they are more likely to feel resentment towards such work, which can have a negative effect on building a pro bono culture and/or long-term commitment. [64: gurpreet ballagun, emerald hutton, jasmine lalli and catherine ruta , reflections on participation in the birmingham law school pro bono group (2017) < http://epapers.bham.ac.uk/3068/ > date accessed 14 november 2018] [65: mckeown (n56) 29 ] [66: loder (n1) 475-476] thus, at the legal education stage emphasis is placed on the importance of pro bono work as a means to develop a student’s understanding of the law and professional practice. the positive by-product of this is the contribution made to access to justice to the local community upon which the law school serves. it is not in dispute that law schools and law students value the importance of pro bono work, identifying it as a professional obligation. however, as has been demonstrated above, beyond graduation there is a lack of a consistent and systematic approach to actively encourage students to commit to pro bono work on a long-term basis. recommendations for developing a pro bono commitment as has been identified the significance of undertaking pro bono work is understood throughout a lawyer’s career, as a student through to retirement and is both supported and encouraged by the professional bodies. the reality is that there are lawyers who dedicate a considerable amount of time and effort to delivering pro bono services, whether this be for personal, professional or ethical reasons. such efforts should be commended as an ‘… exceptionally important contribution to society’.[footnoteref:67] [67: pro bono policy (n12)] the de-regulation of the profession has brought into question where the responsibility for providing pro bono services should lie. in particular, the question is whether it should be the sole responsibility of lawyers. irrespective of this, it is acknowledged that those who do provide legal services are in a privileged position, as specialist training enables them to negotiate complex legal rules which the general populace would be unable to successfully do without assistance. in light of this, it is perhaps fair to suggest that if lawyers hold the key, they should be prepared to use it to let others through the door. the concern therefore is not whether the profession considers pro bono an important social function, but the level of commitment and dedication shown by the majority of practising solicitors. looking to the lawworks statistics from their 2016-2017 report, less than 5% of solicitors with a practising certificate were noted as having volunteered in that year, whilst in that same year the number of enquiries to clinics within the network were 58,511. this would seem to be disproportionate[footnoteref:68] and not reflective of the significance placed on the role of pro bono in society. it is perhaps also not reflective of people’s desire to undertake pro bono work but for the perceived lack of opportunities available. [68: lawworks (n4) ] it is argued that there is an abundance of opportunities, but this is highly dependent on the definition of pro bono that is being used. the first recommendation would therefore be to re-define pro bono, or at least widen the scope. the definition in the section above highlights that it is essentially the provision of free legal advice or representation for which the lawyer is not receiving payment in exchange. some of the alternative definitions identified would clearly fall within this definition, the provision of a free first interview with a client is the provision of legal advice, for which the lawyer receives no payment for. it is appreciated that the intention is for the client to subsequently instruct the lawyer, however, this is not guaranteed and the time spent discussing the matter and providing limited advice still falls within the definition of pro bono (albeit might not be directed at someone who cannot afford to pay). in addition, representing a client outside the scope of a legal aid certificate, is still the provision of legal representation for which no payment is made for the services, and again, clearly also falls within the definition. the research undertaken to obtain these alternative definitions was conducted some twenty years ago, and it is perhaps important to ascertain what the profession currently considers to be the provision of free legal advice and representation. a dialogue needs to be opened with the profession so that the definition can be widened, and the opportunities made clear to those who perhaps already undertake pro bono work. once an expanded definition has been established it would be appropriate to formally record the activities undertaken, which demographic undertake such activities and the number of hours delivered. it would then be possible to draw conclusions on the balance between what is said, and what is done. a clear picture could then be formed as to whether the profession are delivering the services that they profess to be of such importance and significance in society. previous studies have attempted to record these issues so that such conclusions can be drawn. however, given that there are currently 146,625 practising solicitors a larger scale study would be in order. the second recommendation would therefore be that there should be mandatory reporting of pro bono activities. even if the return is nil, it reminds the individual of their professional obligations and the professional bodies desire to encourage and promote pro bono activities. the practicalities of mandatory reporting would require some thought. at the time of renewing a practising certificate, the solicitor needs to confirm that they have completed their reflection of practice and undertaken all relevant activities to ensure they remain abreast of current practices. therefore, it is possible that at that time of renewal a tick box exercise could be completed for the type of pro bono activity that the solicitor has been involved with, with a corresponding number of hours recorded, even if this is nil. the results can then be published by the sra alongside their regulation population statistics. although lack of opportunities is cited as a reason for not undertaking pro bono work, of significant impact on the individual’s commitment is the attitude to pro bono work by their employer. employers need to send a clear message that pro bono is morally and professionally valued and that firms will not only support but also encourage their solicitors to participate.[footnoteref:69] the third and final recommendation, which is aspirational, is that there needs to be a cultural change within the profession of how pro bono is viewed by the majority. there is a need for firms (not just individuals) to show a commitment to pro bono work, which they regard as an important part of being a lawyer. this would therefore require pro bono hours to be considered as worthy as billable hours, with their own targets and contributing to career progression. firms need to demonstrate their willingness to make a positive contribution to society and act as role models for their employees to emulate. in the current economic climate, where profit margins and sustainability are key concerns for firms (particularly the smaller firms) it may be difficult to effect such a cultural change. therefore, having gone full circle, we need to look to students to carry the flag for pro bono work. although students cannot be taught altruism, undertaking pro bono work within an undergraduate degree can have an impact upon them, particularly where they are taught and supervised by pro bono champions. momentum is needed throughout the lawyer’s career for such a commitment to be sustainable. [69: hoffman (n21) 93] 25 understanding how a law clinic can contribute towards students’ development of professional responsibility ann thanaraj* cumbria university, uk abstract there is rich international literature spanning over decades giving valuable insights into the educational benefits of clinical legal education (cle), however there is little in the way of empirical data evaluating the link between utilizing cle to develop specific skills. this paper aims to discover the link between cle as a learning methodology and the extent to which students become more aware of professional responsibility skills after a clinical experience. the study employed a phenomenographic methodology to evaluate the variations in student learning. the findings suggest that students believe they have developed a greater sense of awareness and learning of a variety of lawyering skills and a greater awareness of values and characteristics of a competent lawyer through the clinical experience. introduction clinical legal education (cle) is a popular teaching and learning methodology used by law schools across a number of jurisdictions.[footnoteref:1] there is rich international literature spanning over decades on the educational value of the use of cle[footnoteref:2] however, in the best practice report of 2007,[footnoteref:3] professor stuckey, a distinguished professor emeritus of cle, recommended that the actual effectiveness of cle needs to be assessed to help determine what students are learning.[footnoteref:4] [1: *ann thanaraj is principal lecturer in law at the university of cumbria one of the leading advocates of cle is neil gold in gold, n. (2015) ‘clinic is the basis for a complete legal education: quality assurance, learning outcomes and the clinical method’, international journal of clinical legal education, vol. 22, no. 1, available at: http://www.northumbriajournals.co.uk/index.php/ijcle/issue/view/53 and mary ann noone in noone, m.a., (2013) ‘time to rework the brand ‘clinical legal education’, international journal of clinical legal education, vol. 19, no.1 available at: http://www.northumbriajournals.co.uk/index.php/ijcle/issue/view/13] [2: the literature on cle and its educational benefits are in abundance. examples of pioneering work are from grimes, r. (1995) “legal skills and clinical legal education” web journal of current legal issues vol. 3; maccrate, r. (2004) “yesterday, today and tomorrow: building the continuum of legal education and professional development” clinical law review, vol. 10, spring edition; giddings, j. (2008) ‘contemplating the future of clinical legal education’, griffith law review vol. 15, p.15, available at: https://www.researchgate.net/publication/29469123_contemplating_the_future_of_clinical_legal_education; hall j., kerrigan k., (2011) ‘clinic and the wider law curriculum’, international journal of clinical legal education, vol. 15, available at: http://www.northumbriajournals.co.uk/index.php/ijcle/issue/view/15; ] [3: stuckey et. al. (2007) ‘best practices for legal education’, clinical legal education association, available at: http://www.cleaweb.org/resources/documents/best_practices-full.pdf] [4: stuckey, r. (2006) ‘can we assess what we purport to teach in clinical law courses? international journal of clinical legal education, vol 9, available at: http://journals.northumbria.ac.uk/index.php/ijcle/article/view/85] existing literature suggests that the clinics can appropriately facilitate the learning of professional responsibility.[footnoteref:5] this paper aims to discover the link between cle as a learning methodology and the extent to which students become more aware of the knowledge, skills and the values and behaviour of professional responsibility.[footnoteref:6] [5: foley et al. (2012) ‘teaching professionalism in legal clinic – what new practitioners say is important’, international journal of clinical legal education, vol 17, available at: http://www.northumbriajournals.co.uk/index.php/ijcle/issue/view/8] [6: this study is not claiming to establish that professional skills are developed by clinical legal education] a phenomenographic empirical study will be employed to determine: 1. how students recognise and understand their learning and acquisition of knowledge, skills and character building during clinical experience? 2. what are the challenges students face during a clinical experience? 3. using the findings from the students’ awareness and learning, to offer some reflections on how to use clinics constructively to capture the development of professional responsibility. a phenomenographic approach to an empirical study in cle is a new method of identifying and analysing data from students who agreed to participate in this study. it is envisaged that employing this methodology in this subject discipline will help academics go further in considering the variations in student learning within a clinical curriculum. the methodology section will offer details of how the study was constructed and the methods employed to arrive at the findings of the study. why teach using clinics? the underlying pedagogy used in designing a cle curriculum maps into a constructivist experiential learning framework. the maccrate report explains that the value of undertaking actual legal work exposes students to the “…essential values of the legal profession: provision of competent representation; promotion of justice, fairness, and morality; continuing improvement of the profession; and professional self-development.”[footnoteref:7] [7: american bar association section of legal education and admissions to the bar – an educational continuum, report of the task force on law schools and the profession: narrowing the gap (1992), p.207, available at: http://www.americanbar.org/content/dam/aba/publications/misc/legal_education/2013_legal_education_and_professional_development_maccrate_report).authcheckdam.pdf also known as the maccrate report.] this means through participation in the clinical experience, students will have the opportunity to develop their existing knowledge and understanding of the substantive law by building on previous learning, application and understandings of the law to solve client problems.[footnoteref:8] alongside this, it has been suggested that clinical education will enable students to gain experience in performing various lawyering activities[footnoteref:9] such as legal research, managing their case, interviewing clients, gathering facts and preparing advice and negotiating on behalf of a client, and perhaps even attending court with a client which are commonly present in many cle experiences. through this, students will learn to integrate knowledge of substantive law and its application in practice using the experience gained.[footnoteref:10] [8: moliterno, j. (1996) ‘legal education, experiential education, and professional responsibility’, vol. 38, william and mary law review, p.78, available at: http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1657&amp;context=wmlr cruess & cruess (2012) ‘teaching professionalism: general principles’ medical teacher, vol.4(4), p.259 available at: http://www.ncbi.nlm.nih.gov/pmc/articles/pmc3987476/] [9: as discussed on page 9 on identifying professional responsibility ] [10: much literature on cle discusses the integration of substantive law with actual application of the law in practice as a key benefit of cle. this is true. however, in order for students to gain a useful learning experience from cle, they will need to be equipped with the theory of various lawyering skills and lawyer values and characteristics so that this knowledge can be utilized and built upon during the cle experience.] the benefits and opportunities of learning within the constructive experiential framework can be utilized by encouraging students to reflect on the experience and opportunities. when reflection takes place, it facilitates awareness of learning, awareness of skills development, and an awareness of areas for improvement.[footnoteref:11] learning through this process become more focused, personalised and at a deeper level, which helps to promote development of personal and professional values, attitudes, and beliefs,[footnoteref:12] with students taking a greater role and responsibility for their learning, preparing for continual lifelong learning and professional development.[footnoteref:13] using the insight of students’ learning obtained through the phenomenographic methodology, this study seeks to test if students believe they have developed the skills and values of professional responsibility. it must be clarified that this study was unable to test if the students have actually gained or improved these skills. [11: leading literature on reflecting in professional practice is from schon, d. the reflective practitioner: how professionals think in action (1983) new york: basic books, p.7] [12: clubb, k. (2014) ‘masters of our destiny the integration of law clinic into post graduate masters provision. international journal of clinical legal education, vol. 20 (2), available at: http://www.northumbriajournals.co.uk/index.php/ijcle/issue/view/11] [13: when students undertake learning in the context of a lawyer’s role with appropriate supervision and timely feedback this create a rich learning environment. for discussion on cpd in professional setting, the gmc’s report on the effectiveness of continuing professional development final report, 2010 college of emergency medicine is available at: http://www.gmc-uk.org/effectiveness_of_cpd_final_report.pdf_34306281.pdf] gaps in the literature cle has been advocated as the gold standard for delivering a successful legal education curriculum.[footnoteref:14] the maccrate report emphasized the benefits of cle recommending law schools to “determine how its school can best improve the process of helping students acquire the skills and values that are important in the practice of law, . . . [footnoteref:15] the carnegie report echoes this central role and value of clinics explaining that ‘…clinics have made, and continue to make, an invaluable contribution to the entire legal enterprise. they are a key component in the development and advancement of skills and values throughout the legal profession”.[footnoteref:16] through successful advocating of its’ effectiveness and educational value, cle is a teaching and learning methodology used widely across law schools across the globe. there are also conferences and forums for academics to share best practices in cle.[footnoteref:17] [14: gold, n. (2015), supra 1] [15: the maccrate report (2002) supra 7, recommendation 8] [16: sullivan et al. (2007) ‘educating lawyers: preparation for the profession of law’, the carnegie foundation for the advancement of teaching, p. 187–88, available at: http://archive.carnegiefoundation.org/pdfs/elibrary/elibrary_pdf_632.pdf also known as the carnegie report] [17: conferences such as the international journal of clinical legal education conference held annually across the globe, and forums such as the national institute for teaching ethics and professionalism set up by georgetown university and in the uk by city law school are leaders in the areas of cle and professional responsibility.. ] it has been argued that assumptions are made about the educational benefits of cle to contribute towards a student’s skills and professional development.[footnoteref:18] this is based on the lack of testing and evidence of data showing actual learning and development through cle.[footnoteref:19] it must be noted that the literature on cle is rich, encouraging and offers an extensive amount of support for new clinicians and law schools new to cle,[footnoteref:20] describing how it works, different models of cle and the skills gained through a cle study. however, despite the support for cle, there is little evidence in existing literature to help academics understand how, why and in what context clinics can deliver the educational benefits and to explain the relationship between cle and the practical and professional development of law students. [18: bergman, p. (2003) ‘reflections on the us legal education’, international journal of legal professions, vol 10, no. 1, p,112.] [19: evans a. & hyams r. (2008) ‘independent evaluations of clinical legal education programs: appropriate objectives and processes in an australian setting’, vol 17, no. 1, griffith law review. p.14.] [20: there is a compilation of literature on various aspect of cle, see ogilvy & czapanskiy, (2005) ‘clinical legal education: an annotated bibliography’ clinical law review, special issue no. 2, available at: http://faculty.cua.edu/ogilvy/biblio05clr.htm. note however that the compilation is approximately 11 years old, although this discussions are still relevant today.] it has been questioned whether it is the cle itself or whether some other form of teaching methodology integrated into the cle programme of study might help contribute to professional responsibility.[footnoteref:21] bergman’s work on clinical legal education is a useful starting point to this research paper. [21: bergman, p. (2003), supra 19. also see discussion in evans a. & hyams r. (2008) ‘independent evaluations of clinical legal education programs: appropriate objectives and processes in an australian setting’, vol 17, no. 1, griffith law review, p.15] two major studies on cle have taken place. first, in 2008, an insightful study by the predictors of successful lawyering project[footnoteref:22] surveyed members of the legal profession and judiciary, law academics, students and clients on lawyering skills and competencies. although this study was most valuable in identifying the key components of effective lawyering, it did not address the mechanisms through which legal education can support the acquisition of these skills (thereby making a case for or against clinics).[footnoteref:23] [22: shultz, m. & zedeck, s., (2009) ‘predicting lawyer effectiveness: a new assessment for use in law school admission decisions’, available at: http://papers.ssrn.comlsol3/papers.cfm?abstractjid=1442118.] [23: ibid., p.26-27. the studies show that there are 26 effectiveness factors in eight umbrella categories intellectual and cognitive; research and information gathering; communication; planning and organizing; conflict resolution; client and business relations entrepreneurship; working with others; and character.] the year after, another study by an australian law school[footnoteref:24] surveyed students in the third year of the law programme and followed their professional journey for two years after graduation and found that students who received clinical training were more often than not more willing to undertake pro bono work than those without clinical experience during law school.[footnoteref:25] both these studies are really useful as they offer valuable insight into how clinical experience may have helped shape a future lawyer but they have yet to investigate any data from which to establish a relationship between the clinical experiences and the acquisition of lawyering skills and development of professional responsibility. [24: evans, a. & palermo, j., (2009) ‘lawyers and ethics in practice: the impact of clinical and ethics curricula on lawyers' ethical decision-making’, monash univ. faculty of law, legal studies research paper no. 2007, available at http://ssrn.com/abstract=1349427] [25: ibid.] aaronson’s[footnoteref:26] paper had set out to establish good lawyering skills and concluded that the facilitation of cognitive and emotional development in students will provide them with a solid foundation to become lawyers who are able to fulfil key responsibilities. similarly, breger’s[footnoteref:27] paper featured a law school’s effort to teach professionalism, using a variety of techniques and covered a variety of subject matter and o’grady’s[footnoteref:28] paper questions whether collaborative learning in a law school clinic adequately prepares students for practice. all this rich research is valuable in discussing the benefits of cle, however the research does not provide insight into the validity of clinics through a methodological framework within the context of their research questions. neither do the papers investigate and establish the extent clinical experience serves in the development of professionalism and lawyering skills. [26: aaronson, m., (2002) ‘thinking like a fox: four overlapping domains of good lawyering’, clinical law review, vol.9, available at: http://repository.uchastings.edu/faculty_scholarship/7] [27: breger, m., et al. (2004), ‘teaching professionalism in context: insights from students, clients, adversaries and judges’, south carolina law review, vol. 55, pp. 303-347, available at ssrn: http://ssrn.com/abstract=566061] [28:  gage, c, (1998) ‘preparing students for the profession:  clinical education, collaborative pedagogy, and the realities of practice for the new lawyer’ clinical law review, vol. 4, p.485, available at: https://litigation-essentials.lexisnexis.com/webcd/app?action=documentdisplay&crawlid=1&doctype=cite&docid=4+clinical+l.+rev.+485&srctype=smi&srcid=3b15&key=4c8ba8ea21344d37b5dcc1a2c2684354] recent work from engler[footnoteref:29] pays homage to the maccrate report and most helpfully provides us with a roadmap on how to use the report to develop competent and ethical lawyers. hyams’[footnoteref:30] work on teaching students to act like a lawyer investigates the type of lawyer we want students to act like and leads the current literature on lawyering skills, values and characteristics of professional responsibility. however empirical research on the relationship between cle and professional responsibility could have added some useful insights into why the characteristics identified were relevant for professional practice. [29: engler, r., (2003) ‘from 10 to 20: a guide to utilizing the maccrate report over the next decade’, vol. 23 pace law review, p.519, available at: http://digitalcommons.pace.edu/plr/vol23/iss2/4] [30: hyams, r. (2008) ‘on teaching students to ‘act like a lawyer’: what sort of lawyer?’, international journal of clinical legal education, vol. 13, available at: http://journals.northumbria.ac.uk/index.php/ijcle/article/view/65] identifying professional responsibility the formation of professional responsibility in law students has been of global interest amongst the legal professions.[footnoteref:31] major work in this area include the maccrate report which sets out ten fundamental lawyering skills[footnoteref:32] and four professional values[footnoteref:33] that “every lawyer should acquire before assuming responsibility for handling a legal matter”[footnoteref:34] as part of a standard legal education.[footnoteref:35] the report identified that providing competent representation to clients, promoting justice with fairness, and improving oneself[footnoteref:36] are essential professional traits of lawyers.[footnoteref:37] in addition, another major work in this area, the clea best practice report[footnoteref:38] also called for law graduates to demonstrate competency and professionalism in resolving legal problems. [31: the most insightful work on the knowledge, skills and characteristics of a professionally responsible lawyer is seen in the maccrate report, the clea best practice report and the carnegie report. examples of professional responsibility discussions across the jurisdictions include: england and wales solicitors regulation authority, legal practice course: outcomes 2011, version 2, available at: www.sra.org.uk/documents/students/lpc/outcomes-sept2011.pdf furthermore, the 2013 report on the legal education and training review can be found at: http://letr.org.uk/ canada federation of law societies of canada, task force on the canadian common law degree, final report available at: http://www.flsc.ca/_documents/common-law-degree-report-c.pdf and http://www.flsc.ca/en/national-admission-standards/ new zealand institute of professional legal studies, graduate competencies, available at: http://www.ipls.org.nz/for-employers] [32: as set out by the maccrate report, the ten fundamental lawyering skills the report identified are: problem solving; legal analysis and reasoning; legal research; factual investigation; communication; counselling; negotiation; litigation and alternative dispute resolution; organization and management of legal work; and recognizing and resolving ethical dilemmas – the maccrate report, supra 7, p.123] [33: the four fundamental values set out in the maccrate report are: provision of competent representation; striving to promote justice, fairness and morality; striving to improve the profession; and professional self-development the maccrate report, supra 7, p.140 ] [34: the maccrate report, supra 7, p.7] [35: see also engler r, the maccrate report turns 10: assessing its impact and identifying gaps we should seek to narrow, (2001) 8 clinical law review. p.115] [36: maccrate, r. (2000) ‘professional values in the practice of law’, william mitchell law review vol 27(2) available at: http://open.mitchellhamline.edu/cgi/viewcontent.cgi?article=1776&context=wmlr] [37: the 2007carnegie report discussed the development of a professionalism as ‘conceptual knowledge, skills and moral discernment and concludes that in legal education ‘professionalism, social responsibility, or ethics draws to the foreground the purposes of the profession and the formation of the identity of lawyers guided by those purposes’ (the carnegie report, supra, 16, p3)] [38: stuckey, r. (2007) ‘best practices for legal education’ available at: http://www.cleaweb.org/resources/documents/best_practices-full.pdf] in response to the discussions[footnoteref:39] surrounding lawyer proficiencies and professionalism within the law curriculum in england and wales,[footnoteref:40] a range of ‘day one outcomes’ were developed setting out the requirements of knowledge, attributes and ethics expected of a newly qualified solicitor,[footnoteref:41] including appropriate behaviours, integrity, sensitivity to clients and others,[footnoteref:42] and the ability to recognise and resolve ethical dilemmas.[footnoteref:43] [39: the solicitors regulation authority has undertaken a number of reviews and consultations. see: law society consultation: training framework review (london, law society, 2001) the first consultation was on the inclusion of ethics into the curriculum (consultation in 2001, paragraph 21-22) the second consultation was on understanding of professional responsibilities, ethics and values required of a solicitor (consultation in 2003, paragraph 87) the third consultation was on a trainee solicitor’s core values and skills (consultation in 2005, paragraph 73)] [40: an independent review by the law society found that “it is difficult to see how lawyers can be expected to be responsible/feel accountable when they are taught nothing of the history of their own profession, its challenges and aspirations…some deeper understanding of the professional project of lawyering … it might also more generally be argued that development of an understanding of the ethical basis of law (not just lawyering) is also a necessary prerequisite of vocational training in professional ethics and conduct…” – see reference made by boon, a., & webb, j., (2008) ‘legal education and training in england and wales: back to the future?’, journal of legal education, volume 58, number 1, available at: http://letr.org.uk/references/storage/u7rc3rr2/boon%20%26%20webb,%20back%20to%20the%20future.pdf] [41: a new framework for work based learning: consultation annex 1 – day one outcome “knowledge of … the rules of professional conduct (including the accounts rules) …understanding of … the values and principles on which professional rules are constructed, available at: http://www.sra.org.uk/solicitors/qlts/day-one-outcomes-table.page. for specific attributes see outcome c and f] [42: ibid. outcome c] [43: ibid. outcome d] in addition, the quality assurance agency (qaa) benchmark standards of 2015 for law expects that “…a law graduate is far more than a sum of their knowledge and understanding, and is a well skilled graduate with considerable transferable generic and subject-specific knowledge, skills and attributes.”[footnoteref:44] [44: these can be found at http://www.qaa.ac.uk/en/publications/documents/sbs-law-15.pdf which sets out the key characteristics and skills a graduate of law should be capable of demonstrating. some of these include intellectual independence, self-management, awareness of principles and values of law and justice, and of ethics, study in-depth and context of substantive areas of law, ability to conduct self-directed research, ability to interpret a range of data, ability to tolerate ambiguity and deal with uncertainty in law, ability to produce a synthesis of relevant literature, critical judgement of the merits of particular arguments, ability to apply knowledge and understanding to offer evidenced conclusions, ability to communicate and engagement with their own personal and professional development, and academic integrity” – benchmark standards, section 2.4, p.7] there are a number of research papers from law academics on teaching professional responsibility. for example, noone and dickson[footnoteref:45] identify that a professionally responsible lawyer is someone who fulfils the duties attached to a fiduciary relationship[footnoteref:46] through skills such as actively engaging in serving the community, effective communication; identifying ethical issues and using the law justly and fairly.[footnoteref:47] [45: dickson j & noone m.a, teaching towards a new professionalism: challenging law students to become ethical lawyers (2001) vol.4(2) legal ethics p.127] [46: ibid. ] [47: ibid.] hyams[footnoteref:48] explains that autonomy demonstrated through an independent and self-directed manner is a necessary skill of professional responsibility. the ability to make sound judgements,[footnoteref:49] through practical wisdom, a process of imagination, careful deliberation, and intuitive comprehension"[footnoteref:50] is one that is not limited to legal matters alone.[footnoteref:51] good lawyering and professionalism require an ongoing process of understanding personal limitations by reflecting on experience,[footnoteref:52] to continually improve through a lifelong learning and professional development.[footnoteref:53] [48: hyams, r. (2008), supra 30.] [49: ibid. further, the clea best practice report provides a comprehensive list of "good lawyer" traits which includes the ability to make competent judgements: integrity; honesty; diligence; fairness; courage; wisdom; compassion and balance – the best practice report, supra 50, p.51-53] [50: eberle e. j. three foundations of legal ethics: autonomy, community, and morality (1993) 7 georgetown journal of legal ethics, p.123.] [51: sampford c. & blencowe s. educating lawyers to be ethical advisers in economides, kim (ed), ethical challenges to legal education & conduct, (hart publishing oxford 1998) p.319.] [52: hyams, r. (2008), supra 30] [53: ibid.] from reviewing the literature and through a degree of consensus from this and my own views, i have developed a range of learning outcomes in table 1 below which could be incorporated into clinical modules to help students learn and demonstrate professional responsibility. within this study, these learning outcomes will assist in forming a basis for a definition of professional responsibility which will be used to test students’ awareness of their development of professional responsibility through a clinical experience and to determine the extent to which students feel they have become more aware of what these skills are and what level of proficiency is required. knowledge of professional responsibility through: • developing new knowledge and deeper understanding of law through solving problems [footnoteref:54] [54: the maccrate report, supra 7; noone, m. and dickson, j, supra 45] • conducting research and undertaking analysis in an independent and self-direct manner [footnoteref:55] [55: hyams, r. (2008), supra 30] • resolving client’s problem through effective use of judgement and reasoning skills[footnoteref:56] [56: ibid. the maccrate report, supra 7; noone, m. and dickson, j, supra 45] • recognising and understanding ethical challenges [footnoteref:57] [57: the maccrate report, supra 7; hyams, r. (2008), supra 30 the maccrate report, supra 7 and the sra education and training committee day one outcomes april 2007] • understanding the values, behaviours, attitudes of a solicitor[footnoteref:58] [58: sra education and training committee day one outcomes april 2007] lawyering skills of professional responsibility through • exercising appropriate levels of judgement in resolving problems for clients[footnoteref:59] [59: hyams, r. (2008), supra 30] • providing appropriate explanation and communication that is understandable[footnoteref:60] and tailored to client needs [60: the maccrate report, supra 7; noone, m. and dickson, j, supra 45 ] • working with autonomy and self-direction to produce work of high quality [footnoteref:61] [61: hyams, r. (2008), supra 30] • resolving ethical dilemmas[footnoteref:62] [62: the maccrate report, supra 7; noone, m. and dickson, j, supra 45; sra education and training committee day one outcomes april 2007] • being well prepared and organised and being able to think on your feet [footnoteref:63] [63: hyams, r. (2008), supra 30] • coping well with pressure [footnoteref:64] [64: the maccrate report, supra 7; noone, m. and dickson, j, supra 45] • demonstrating effective client rapport, interviewing skills, negotiation skills and analytical skills of the law and of facts[footnoteref:65] [65: sra education and training committee day one outcomes april 2007] values and behaviours of professional responsibility through: • upholding the standard expected of the profession [footnoteref:66] [66: the maccrate report, supra 7 and the sra education and training committee day one outcomes april 2007, and noone, m. and dickson, j, supra 45 striving to promote justice, fairness and morality] • being reflective and responsible about own behaviours and actions to ensure continuous self-improvement [footnoteref:67] [67: hyams, r. (2008), supra 30] showing integrity and sensitivity towards clients and others [footnoteref:68] [68: sra education and training committee day one outcomes april 2007 being honest and trustworthy showing respect for the client ] • exerting judgement in a manner that uses the law justly and fairly [footnoteref:69] [69: hyams, r. (2008), supra 30 and noone, m. and dickson, j, supra 45] • raising ethical concerns where appropriate [footnoteref:70] [70: the maccrate report, supra 7; noone, m. and dickson, j, supra 45 and the sra education and training committee day one outcomes april 2007] • fulfilling the duties of the fiduciary relationship[footnoteref:71] [71: noone, m. and dickson, j, supra 45] table 1: professional responsibility learning outcomes this framework of learning outcomes will be utilized throughout the study to: a) assess whether students believe their experience of clinic contributed to their development of the knowledge and/or skills and/or character development of professional responsibility; b) determine the extent to which students believe they have become more aware of what professional responsibility is and whether the level of proficiency required; c) draw out and label the themes from the data to assist in determining students’ awareness of professional responsibility; d) using the findings from the students’ awareness and learning, to offer some reflections on how to use clinics constructively to capture the development of professional responsibility; the study and methodology this study features a module in which law students participate in the representation of actual clients under the supervision of a tutor/solicitor. a phenomenographic methodology can be used systematically to explore the different participants’ experiences and identify their understanding and meanings of the phenomenon being studied.[footnoteref:72] a phenomenographic method is relevant for this study as the research aims to study students’ lived experiences and conceptions of professional responsibility. the existence of variation in experiences is founded on the hypothesis that individuals experience the world in unique and different ways.[footnoteref:73] [72: marton, f. (1986). phenomenography a research approach investigating different understandings of reality. journal of thought, vol. 21, p.28-49.] [73: säljö, r. (1988). learning in educational settings: methods of inquiry. in p. ramsden (eds.), improving learning: new perspectives. london: kogan page, pp.32-48; marton, f., pong, w. y. (2005) ‘on the unit of description in phenomenography’, higher education research and development vol. 24, p.335] the data was collected from 36 self-selecting participants and the breadth of the representation of the participants across the second and third year programmes has provided ‘useful insight’ into the different ways in which cle had facilitated awareness and development of professional responsibility in students. the findings from this study will be analysed to find evidence of students’ awareness of professional responsibility (as outlined in the learning outcomes in table 1) which students feel they may have developed after a clinical module. from these findings, it is hoped that we will be able to better understand and improve the use of clinics to draw out the desired learning outcomes of professional responsibility most effectively. sampling, interviewing and transcription a pool of 36 participants was drawn from a second and third year class in the law programme through a self-selection process. the second year participants had undertaken nine months of a cle curriculum and the third year participants have had a further three to six months of work experience with law firms during the course of their study at the time of data collection. the study did not seek to explore whether the additional experience would have facilitated a more enhanced development of professional responsibility. each interview lasted around 30 minutes. the dialogue took place in a free-flowing joint discussion between the researcher and the participant. the dialogues were conducted by myself as the researcher and clinical tutor. each interview began with a clear explanation of the purpose of the research and what i hope to learn from the discussion. confidentiality and anonymity was assured. i adopted an informal intentional-expressive approach[footnoteref:74] to the dialogue, where participants were asked to discuss their experience on the clinical module, in particular, for me to draw out any awareness and development of professional responsibility skills. [74: anderberg, e. (2000) ‘word meaning and conceptions: an empirical study of relationships between students’ thinking and use of language when reasoning about a problem instructional science’, vol.28, available at: http://www.springerlink.com/content/l82l42t6356h3m31/] follow up questions are asked to encourage participants to reflect on and confirm the intended meanings in the expressions that they have used, thereby helping to establish objectivity to the interviewees’ perspectives,[footnoteref:75] and minimizing any assumptions or influence of the interviewer. further, there were five open-ended[footnoteref:76] questions which participants were asked towards the end of the conversation to encourage them to reflect and discuss aspects of developing professional responsibility.[footnoteref:77] this also helped with providing some structure to the dialogue especially when students weren’t too sure on what aspects to discuss. [75: svensson et al. (2006a)] [76: anderberg, e. (2000) supra 76] [77: walsh, e. (2000) ‘phenomenographic analysis of interview transcripts’. in bowden, j., walsh, e. (eds) phenomenography. melbourne: rmit university press, 19–33.] the questions were: a) in your view, what are the learning benefits of cle? b) having completed the cle module with the reflective portfolio, what do you understand by the term ‘professional responsibility’? c) can you give examples of ways in which your cle experience has facilitated your knowledge of professional responsibility? d) can you give examples of ways in which your cle experience has facilitated your professional responsibility skills? e) can you give examples of ways in which your cle experience has given you the opportunity to gain and demonstrate the values and behaviours of someone who is professionally responsible? it is acknowledged that these questions make the assumption that there is a link between the cle experience and professional responsibility, however questions (a) and (b) are addressed first to determine whether the participant is able to articulate an awareness of professional responsibility before the more direct questions to establish link is discussed in questions (c) to (e). in a phenomenographic study, critics may question the credibility of the data gathered because of the conversation between the researcher themselves with the participant and the potential lack of independence from the study. i was also mindful of the potential differences in the use of language and meaning in interview data. as such, there was continual clarification of intended meanings through follow up questions so that assumptions were minimised.[footnoteref:78] i avoided offering alternative phrases or more accurate expressions; instead i listened attentively. throughout the interviews, i was thoughtfully analysing the data i was hearing, to confirm the categories identified from previous dialogues, to discover emerging categories, and sometimes to reject some categories which i had previously identified.[footnoteref:79] [78: hammersley (2003) recognized these issues but does not advocate abandoning all uses of interview data. he advised researchers to be aware of the dangers of using interview data and to exercise great caution in interpreting, using and drawing conclusions from them.] [79: according to akerlind (2005), categories of description for the same phenomena can vary depending on the group of participants and different researchers’ ability to develop different categories from the same data. see akerlind, g.s. (2005b) variation and commonality in phenomenographic research methods. higher education research & development 24(4): 321–334, available at: http://dx.doi.org/10.1080/07294360500284672] practitioners of this methodology have warned that the written notes could change the intended meanings of participants[footnoteref:80] and could run the risk of misinterpretation of the data.[footnoteref:81] in this study, the dialogues were recorded by way of written notes as exact as possible, including expressions and clarified intended meanings,[footnoteref:82] which was crucial, since the categories of description were to be constructed from the participants’ experiences gathered from this process. there may be criticism over the possibility of bias and assumptions being made about the true intent of the notes made, however i have tried to put my preconceptions of cle and definition of professional responsibility aside and not to presuppose the view of the participants. my aim during the data gathering and data analysis process was to engage fully with participants’ lived experiences to understand their conceptual meanings. [80: kvale, s. (1996) interviews: an introduction to qualitative research interviewing. thousand oaks, california: sage publications.] [81: barnacle, r. (2005). interpreting interpretation: a phenomenological perspective on phenomenography. in j. a. bowden & p. green. (eds.), doing developmental phenomenograph, melbourne: rmit university pressm p.47.] [82: anderberg, e. (2000) ‘word meaning and conceptions: an empirical study of relationships between students’ thinking and use of language when reasoning about a problem instructional science’, vol.28, available at: http://www.springerlink.com/content/l82l42t6356h3m31/ svensson, l., anderberg, e., alvegard, c., johansson, t. (2006a) the interplay between thought and language in understanding problems from a student perspective. in svensson, l., anderberg, e., alvegard, c., johansson, t. (eds): pedagogical reports: the interplay between language and thought in understanding problems from a student perspective. lund, sweden: department of education, lund university, p.1–5] other limitation include data collected at a certain point in time may not sufficiently represent the perspectives of the entire student population in the law department. further, due to time constrains, no pilot interviews were used to ensure the questions were phrased clearly. however, it must be acknowledged that although the questions could have been refined, it sufficiently captured the essence of the research. data analysis process[footnoteref:83] [83: to fully comprehend the conceptual meanings of the participant’s experiences, and to demonstrate reliability between the data obtained and the categories in describing the ways in which a phenomenon is experienced, marton and booth (1997) and ashworth and lucas (2000) advise researchers to deliberately set their opinions and preferences aside in the interpretation of data. aspects of the validity issue in phenomenographic studies have been addressed comprehensively in svensson, anderberg, alvegard, and johansson (2006b) and t. johansson, svensson, anderberg, and alvegard (2006).] in this study, sjöström and dahlgren’s (2002) data analysis steps were implemented. these are: 1. familiarisation – to fully comprehend the conceptual meanings of the participants’ experiences and to demonstrate reliability between the data obtained and the categories in describing the ways in which a phenomenon is experienced. the interview notes were read three times throughout the process to ensure that the data and categories were linked.[footnoteref:84] the aim was to look for qualitatively different conceptions of the phenomenon of interest collectively rather than the conceptions of individual participants.[footnoteref:85] as such, the interview notes were interpreted collectively rather than individually, with cautious awareness of language differences and choice of terminology used during the dialogues. each participant’s dialogue notes were analysed as a whole rather than by way of extracting individual answers from the notes, which helped maintain the intention, expressions and essence of the conversation. [84: sjöström, b., dahlgren, l. o. (2002) applying phenomenography in nursing research. journal of advanced nursing. 40: 339–345] [85: marton, f. (1994) phenomenography. in: husén, t., postlethwaite, t.n. (eds) the international encyclopaedia of education, 2nd edn. oxford: pergamon press, 4424–4429.] 2. initial grouping – similar emerging themes from the dialogues were grouped together. the result was a number of different groups of data. 3. comparison of groups/categories: re-reading and re-analysing the data to confirm the initial groupings and then comparing each of the groups to show the differences between them. 4. labelling categories – themes were drawn out from each participant’s dialogue notes. similar themes were grouped together to form categories. it must be noted that the epistemological stance taken in this study is that of social constructivism where variations in the way we view the world and what is around us are attributed to our own experiences and existing knowledge. as such, it is acknowledged that the categories for the same phenomena, in this case cle and professional responsibility can vary depending on the group of participants and different researchers’ ability to develop different categories from the same data.[footnoteref:86] [86: åkerlind, g. (2005). variation and commonality in phenomenographic research methods. higher education research and development, 24(4), 321–334.] 5. outcome space – the results of the data analysis below has been presented in categories, sustained by quotations from the interviews. the outcome space (table 2) makes a graphical representation of the critically different conceptions, understandings and experiences of the participants[footnoteref:87] and how the categories described correlate together. [87: bruce, c., buckingham, l., hynd, j., et al. (2004) ways of experiencing the act of learning to program: a phenomenographic study of programming students at university journal of information technology education, vol. 3, p.143–160, available at: http://jite.org/documents/vol3/v3p143-160-121.pdf] results of the study evaluating the extent of professional responsibility gained this paper aims to determine the extent to which students believe they become more aware of professional responsibility and the level of proficiency required for a clinical experience. the discussion of results presented below is taken from the individual answers obtained from the interviews. the information from the interviews were summarised collectively to obtain the main themes in the dialogue before attempting to preliminary group similar answers, thereby drawing out the categories of description. attention was given to language differences and choice of terminology used by the participants. the results of the study demonstrate some useful insights into students awareness of how the cle experience has helped with development of professional responsibility. the knowledge, skills and values will be discussed below. the challenges faced during the clinical module will be addressed in the reflection section with the aim of identifying enhancements to better utilize the module. students’ awareness of developing knowledge of professional responsibility through application of the law to actual problems the findings suggest that students believed they were capable of demonstrating knowledge of professional responsibility through the opportunity to develop a clear understanding of how the law applies in a practical context, being able to identity the key areas of legal issues within a case, an improvement in the ability to research the necessary areas of law. participant 5: i leant what the day to day life of a lawyer would be like through the integration of practical work in our studies…this experience has helped with improving my level of responsibility, and to think about the skills expected of a lawyer and to use my subject knowledge in practice. it was interesting to learn how the law applies in practice, and in my view it is a common sense approach rather than a straightforward application of legal principles. participant 27: i am really proud of myself…i didn’t think i had it in me to handle a real case…real client. i was able to resolve the problem for the client in a way that required me to think for myself, research all the necessary law, understand and apply these to the facts and make a decision using all the information i had on the best course of action for the client. i also made decisions on practical solutions based on my knowledge in the area …and the client seemed very pleased… participant 30: when a client comes in with a problem, usually there are a number of issues which need to be addressed – some of which are straightforward, some are practical issues, some are more complex confidence related issues and others are evidential and legal issues. i have learnt to draw out the different types of issues after a preliminary client interview and tackle each one… this was a skill that wasn’t easy to master however as i became more familiar with the subject knowledge and procedures, it became easier to draw out the issues …detailed research also helped with this and a better understanding of the application of law was really helpful too… i feel that i have grown to develop these skills over the past year. students felt that the clinical experience allowed them to take these skills further to demonstrate improvement in the analysis and application of research to the client’s problems and the ability to offer suitable solutions through the process of reasoning and decision making. participant 4: …being able to explain why one option is better for the client over another requires a fair amount of skills… empathy, research, understanding and reasoning skills. analysing the documents from the opponents were time consuming and required meticulous fact-finding and strong analytical skills….especially when trying to strengthen our own case. participant 7: …i feel as if i have understood what analytical now means. i used to receive feedback on my assignments saying my work required further analysis, but never really understood what it means, until i began working on this module…i have learnt to break an issue into manageable parts and look in-depth at each part using supporting cases or principles and relevant evidence for and against in order to find solutions for my client... now i use that skill and process in my assignments too. students’ awareness of developing knowledge of professional responsibility through learning to solve a client’s problem most students identified improvement in the process of problem solving as a key skill which improved through the clinical module. some students explained that that they gained new insights into the application of the law but none were comfortable with trusting their own understanding from new knowledge which was being developed and constructed as a result of the experience. participant 1: ...i learnt how to problem solve properly when i began working in the clinical component of the course. i can confidently say i now know how to identify a client’s problem, pick out the legal issues and offer solutions that are both law based and sensible for both sides... participant 24: i have understood how to investigate facts effectively, assess the credibility of evidence and present findings logically in a format understandable to the client. participant 35: during the negotiations i felt i coped well even when it was necessary to think on my feet and i was only able to do this because of the preparation i had done and having a clear understanding of the case. work is also needed across the entire law programme to build in further opportunities for legal research. being able to exercise appropriate judgement in resolving a client’s dispute is an essential skill for a lawyer. further work is needed in the clinical module and across the full suite of modules in the law programme to embed opportunities for students to undertake reasoning and judgement skills. students felt as if the horse was put before the cart in some instances of the cle experience independent research was a key skill demonstrated by all students, although there were varying degrees of corrections and omissions in the work. students commented that the responsibility of undertaking independent research, and making decisions on offering solutions to clients were the two main challenges they faced because of the lack of experience of exercising academic freedom in other modules. further questioning is needed to gather specific details on why students were not confident in trusting their research and understanding skills. participant 22: i took part in the clinical module in my second year and attended to a dispute surrounding a matter of asset division. because i had not studied family law and was just beginning to study land law, i didn’t understand the research i was gathering and felt as if i didn’t quite learn about the subject area as well as i would have if i was in class. i also felt that because i didn’t have any basic knowledge of the two areas of law, my advice to the client was sparse, lacking the credibility of a knowledgeable person….. i doubted myself and checking my notes constantly to make sure i understood what i was saying was correct…. i don’t think i have learnt much about the areas of law presented by the client but i definitely am a little more confident in taking the initiative to learn something new on my own and to apply new knowledge using my problem solving skills. but i would still prefer a lecture first before attempting to apply my own research. participant 25: learning a new area of law by being thrown into the deep end was challenging but interesting. it made me pay more attention to what i was researching and made me research more deeply into the area to ensure that my research was accurate…but i am not too sure if i actually learn enough of employment law through this method – i definitely couldn’t take an exam and pass it without the traditional teaching. students’ awareness of their development of some of the lawyering skills of professional responsibility the findings suggest that students believe the clinical experience has been helpful in gaining insights into making the transition from law school into vocational studies and/or employment. students also revealed that the clinical experience has been most effective in comparison to other modules. students say that they feel better prepared for work. further in-depth research is needed to establish the exact reasons and factors which make students feel better prepared. participant 10: most law firms are now looking beyond knowing the substantive law…the clinic has provided me with hands on experience and opportunities to attend court as a mackenzie friend, represent a client, show evidence of preparation, legal analysis and offering practical solutions. i am confident in gaining employment after my degree. participant 27: feedback on performance or preparation…has really motivated me and encouraged me to pursue a career in law…i have understood the law in a much clearer and substantial manner…research skills improved and i feel as if i now understand what analysis means – looking into cases and facts in a way that helps discern the key pieces of information. the case i worked on also showed that i have reasoning and decision making skills, which i hope to improve over time, with further legal case work. the evidence suggests that a number of the key lawyering skills of professional responsibility were developed in this module. these include team working, although there were some challenges in appropriate work between team members, problem solving, paying attention to details, reasoning and decision making skills and working responsibly and under pressure to tight deadlines. an assumption can be made based on the office and case management work that students have had to undertake independently, alongside the various skills and research that has been developed over the course of the module. participant 13: the clinical experience has given me an employment edge…actual evidence of team working, problem solving, communication with a variety of people, business awareness, flexibility and working under pressure; being attentive to detail; willingness to learn and good decision making skills. participant 21: i have worked well to deadline and under pressure, and i utilized these strengths in the clinical module…i feel also that i have developed a better approach to problem solving by paying close attention to details in documents such as dates, names of individuals, consistency and discrepancies in multiple pieces of evidence…this has helped me develop a more confident approach to reasoning and explanation skills to clients, supervisors and team members… the interview however did not delve further into establishing whether there were any improvements to the existing professional skills which students mentioned they had developed. student’s awareness of their development of lawyering skills through effective, accessible and clear communication there was good evidence to claim that students understood the effective techniques to establish client rapport, understanding of good questioning and listening in client interviews with the aim of gaining as much details from the client, and knowledge of some effective strategies for use during negotiations. using this existing knowledge, students felt they were able to plan and execute their own way of dealing with a client. participant 7: i listened carefully to my client and understood exactly what he was hoping for. the client was happy with how i kept him updated on the progress i was making. the client preferred telephone calls, so i called him with updates and then followed it up by way of an email for my own records. i think this worked well for both of us. participant 15: the advice i provided my client helped them understand and decide what the right way was forward for them. i also encouraged my client to explore each of the options available to them in a way that benefitted them and helped achieve their goals. i found this challenging but learnt that this is one of the key lawyering skills of a successful lawyer. from this analysis, it is clear all students were working responsibly and were dedicated to find the best solutions for their clients, however there was insufficient evidence to suggest that students had thorough knowledge of the key values and characteristics of professional responsibility, as identified in table 1 of this paper. students were capable of demonstrating practical skills alone through their commitment to do right by their clients such as through sound practical application of the law, good research, effective communication and employing good strategies for problem solving. students felt they lacked the understanding of what competency actually means however, the findings confirm that not all students had this existing knowledge and many went into interviews without planning an agenda or setting out gaols of the task, let alone go in equipped with the knowledge of good practice. there needs to be introductory and refresher workshops highlighting good practice in key lawyering skills, for students to use this as a foundation. because of the lack of existing knowledge on good practice, there were many students who felt that they could have been more prepared, anticipating what to expect and as such being able to build a better rapport with the client. most felt they managed to cope well under pressure. participant 9: the learning outcomes in this module list number of skills such as competency in case management and competency in developing rapport with client. however, there is no explanation of what competency means and how we could achieve this competency. i would benefit from a set of criteria which explains the levels of competency and during feedback which level i am at to attaining competency of a particular skill. i found it hard to reflect on any improvements without a rubric of some sort. participant 21: one of the skills we had to reflect on was our level of competency in understanding and working towards the standard expected of the profession….we have had a number of lessons and debrief sessions on profession, values, standards, behaviours. …reflecting on where i am at on the competency ladder was a challenge as i didn’t know what it is to be competent and not competent. evidence suggests students were providing appropriate explanation and communication to clients that are meaningfully tailored to client needs, although as already mentioned, there is work to be done within the curriculum on reasoning and judgement skills. students also commented that they are now more confident in communicating with members of the public and figures of authority for a variety of reasons. this finding does not tell us that clinic made students more competent or skilled after the experience, but it does suggest that clinic was beneficial in developing and improving a range of lawyering and transferable skills. students’ awareness of their development of values and behaviours of professional responsibility through ethical awareness the findings also indicate that there is awareness and demonstrable evidence of students showing sensitivity towards clients. participant 11: …i would never have learnt to apply the law to this extent if not for the clinical experience. i developed some good communication skills and had time to consider the conflict between the parties…i also had time to reflect on the extent i have developed my professional skills in particular through the weekly debriefing. participant 22: it was really good to use my knowledge to help a client. i improved on my legal research, fact analysis and application skills…i improved in offering practical solutions which has now helped me obtain a training contract. participant 31: i grew in confident and became more responsible as i had the welfare of someone else on my hands. there were many instances where i had to question my own belief – especially in the misconduct case – and where i found this to be challenging, i strived to do what is right by my client within the codes of conduct. interestingly however, the findings show no link between the clinical experience and a strong desire to serve the community in the context of pro-bono work. this is intriguing because most students had mentioned during their admission to the law programme that they wished to fight for what is right and facilitate access to justice for all.[footnoteref:88] possibly, more specific questioning is necessary to form a better opinion on the motivations to support the public through the cle module. [88: recent work into insights of pro bono participation has been undertaken by mckeown, p., (2015) ‘law student attitudes towards pro bono and voluntary work: the experience at northumbria university, international journal of clinical legal education, vol 22 (1) available at: http://www.northumbriajournals.co.uk/index.php/ijcle/article/view/407] however, whilst developing competent problems solving skills, there was insufficient evidence to suggest that more often than not students were able to recognise any ethical challenges that may be present in their cases, unless prompted to do so by a supervisor. nevertheless, it was evident that students took a narrow view in understanding ethical behaviour and legal ethics to mean working in a way that does not contravene the codes of conduct. participant 1: …applying client confidentiality in the day to day handling of a case really helped me learn how to deal with matters professionally. it gave a much deeper recognition and understanding to ethical practices. participant 32: i understand the word ethical to mean doing what is right and moral within the codes of conduct and expectations of a lawyer. i am not sure whether i learnt how to become ethical, but through the debriefing sessions and reflective exercises i had some time to think about how i behaved, how i dealt with a case and i have set out some areas to work on. i do think though that being committed to the client, to the case and to the law is important and that is what being ethical is about perhaps? questioning in this area suggested that students were unaware of some of the basic ethical and professional constrains. initial teaching and refresher workshops in this area are necessary to give students the confidence to identify and address similar issues in the future. students felt that it was ok to make mistakes, but most importantly learn from them it is evident from all students interviewed that being able to reflect critically had helped improve their performance in future lawyering tasks, and students began to identify areas for improvement and set out action plans to achieve their goals. more work is needed to support students through the reflective process to help draw out specific areas of professional responsibility development. participant 24: it is ok to make a mistake, reflect upon it and improve the next time. the reflective questions…helped with establishing priorities and setting out goals for improvement…. considering how you go about acquiring the skills of ‘a good lawyer’ and how will you know you have achieved your goals helped me focus, draw up a list of what i though t a good lawyer should be, and with feedback…worked towards achieving these skills. the reflective opportunity weekly helped with improvement of how i deal with preparation and clients. participant 33: …gave me time to reflect on the skills and experience…opportunity within the module to think hard about my learning and my career goals, based on the experience and feedback on their strengths and how to overcome weaknesses. participant 8: the weekly debrief discussion on various skills and professional responsibility…helps us to draw out issues we may not have thought was important. i was able to consider carefully the role of an effective lawyer…. to really think about how i engage with clients, undertake research and do the best in each case. students were capable of demonstrating the values and behaviours of a lawyer through evidence of their commitment and hard work to do the best for their client as fairly and justly as possible. however further exposure is needed for students to understand the depths of the standard expected of the profession. participant 7: i would say being able to research, understand that research, analyse and find solutions for the client are the key skills of a lawyer. being ethical is important too, but i am unsure what that actually means – probably i will follow the codes of conduct closely. participant 12: communication, analytical and research skills are key components of being a lawyer participant 29: academic intellect, research and finding the right solution are the main skills i would expect from a lawyer most students stated that legal research, analysis and finding the right solution for the client are the top three skills expected of a lawyer. there is no doubt that these skills are vital, work is needed in the clinical module literature to help students understand the wide ranging necessary skillset and characteristics which should be embedded into the learning outcomes of the clinical module and explicitly assessed. illustration of variations the table below has been created by mapping the findings from the study to the professional responsibility learning outcomes set out above. the table shows the percentage of participants who have gained a range of knowledge, skills and characteristics of professional responsibility. the information presented in the table derives from my interpretation of the themes and learning outcomes contained within the data gathered. reviewed article: teaching and learning in clinic 90 table 2: illustration of the variation in students’ learning of professional responsibility after a clinical module reflection on use of clinics to capture the development of professional responsibility 1. guiding students’ understanding of learning outcomes and assessment measures of a clinical module a broad brush approach to assessing how competent a student is doesn’t capture the extent of their learning from a clinical module.[footnoteref:89] instead, clear articulation of what each learning outcome means, how to effectively achieve each of the outcomes and clear assessment criteria to help students understand what is expected of them may encourage students to measure their improvements and become reflective and empowered autonomous learners.[footnoteref:90] [89: stuckey (2014), ‘can we assess what we purport to teach in clinical law courses?’, vol. 9 international journal of clinical legal education, available at: http://www.northumbriajournals.co.uk/index.php/ijcle/article/view/85 also see: grimes & gibbons (2016) ‘assessing experiential learning – us, them and the others’, special issue problematising assessment in international journal of clinical legal education, vol 23(1) available at: http://www.northumbriajournals.co.uk/index.php/ijcle/article/view/492] [90: stuckey (2014), supra 91.] a feedback matrix that recognises the stages and characteristics of professional development such as beginner, competent, proficient and expert[footnoteref:91] will assist tutors and students to measure competency more effectively and rigorously. [91: daley, b. (1999) ‘novice to expert: how do professionals learn?’, adult education quarterly, vol.49, available at: http://newprairiepress.org/cgi/viewcontent.cgi?article=1998&context=aerc] 2. understanding the value of putting the horse before the cart clinics alone are insufficient to offer a full critical academic depth of a substantive area of law. however, it should be explained to students on clinical modules that one of the key characteristic of a successful graduate is to show that they are capable of independently learning and applying new knowledge accurately. within the context of professional responsibility, a future lawyer should be able to demonstrate and exercise a high level of autonomy in professional settings. to facilitate this, clinics are well-suited for giving students opportunities to demonstrate and develop the ability to work autonomously, by demonstrating a variety of lawyering skills, to complement the attainment of subject matter knowledge. 3. adopting a living education theory framework of learning and assessment in clinical modules the art of learning to become professional or responsible or ethical will only be possible if the learning is structured in a way that facilitates and draws out these specific intended learning outcomes within a module. in the context of a clinical setting, the most effective way to learn from experience is to use a process of ‘….self-reflective inquiry… to improve the rationality of their own… practices, their understanding of these practices, (and) the situations in which the practices are carried out…the analysis which follows is focused upon the nature of the validity of an individual claim to know his or her own professional development’.[footnoteref:92] this process is known as living theory which immerses the practitioner into the mind-set of ‘how do i improve my practice?’.[footnoteref:93] [92: whitehead, j. (1985) an analysis of an individual's educational development the basis for personally orientated action research. published in shipman, m. (ed.) educational research: principles, policies and practice, p.97-108; falmer; london, p.97. for more recent work see whitehead, j. (2009) self-study, living educational theories, and the generation of educational knowledge, studying teacher education, 5(2); p.107-11.] [93: whitehead, j. (1989). creating a living educational theory from questions of the kind, 'how do i improve my practice?', cambridge journal of education, 19, 41-52, available at: http://actionresearch.net/writings/writing.shtml] this framework begins with what students know about how they come to acquire new knowledge from actively engaging in practical and professional work.[footnoteref:94] for example, the knowledge in this context may involve information about how lawyers should conduct themselves in a fact finding interview or in a negotiation, the rules governing civil or employment practice, key skills such as building a rapport of trust and confidence with clients, questioning techniques in interviews and strategies of achieving goals in negotiation. [94: whitehead, j. & mcniff, j. (2004) ontological, epistemological and methodological commitments in practitioner-research. paper presented at the bera symposium 2004 in manchester on: "have we created a new epistemology for the new scholarship of educational enquiry through practitioner research? developing sustainable global educational networks of communication] the findings from this study indicate that further work is needed prior and during the clinical experience to give students adequate knowledge to understanding the depths of the standard expected of the profession, which should be embedded into the design of the clinical module with clear learning outcomes to be reflected upon and assessed. as such, there needs to be some introductory theoretical sessions on good practice of key lawyering skills, values and characteristics which will help students learn how to become competent in performing a task. then, the student will be guided to articulate a plan for how they intend to perform a particular skill. this knowledge can be used to compare the performance actually exhibited. after a clinical session, it would be useful to hold a peer debrief to share experience between students on how the actual performance related to the planned performance, discuss differences and what the student would try to do differently the next time. a checklist to guide the discussion could include technical lawyering skills, ethical and emotive issues, and specific discussions on professional responsibility. if the performance demonstrated was incompetent, a feedback session with the tutor/supervisor can analyse what caused the ineffectiveness, the student's skills, values, or knowledge demonstrated. this process of embedding continual planning, acting and reflecting within the clinical module provides a basis upon which students can evaluate their performances leading to practical change.[footnoteref:95] furthermore, the ability to reflect critically on one’s own knowledge and skills is vital[footnoteref:96] especially if we accept the pedagogic rationale of experiential learning where learning is seen as an active, self-constructed and intentional process.[footnoteref:97] [95: quigley, a. & kuhne, g (1997) ‘creating practical knowledge: posing problems, solving problems and improving daily practice’, new directions for adult and continuing education. no.73. san francisco, ca : jossey-bass..] [96: england and wales solicitors regulation authority, outcomes statement of 2011: www.sra.org.uk/documents/students/lpc/outcomes-sept2011.pdf. the 2013 report on the legal education and training review can be found at: http://letr.org.uk/] [97: leading work on experiential learning can be seen in healey, m. & jenkins, a. (2000) kolb's experiential learning theory and its application in geography in higher education, journal of geography, 99, pp.185-195. original advocate of experiential learning is kolb, d.a. (1984) experiential learning: experience as the source of learning and development, prentice-hall, inc. englewood cliffs, nj.] this also allows for new knowledge to be formed, opportunity to test and refine a theory and thereby continually improve one’s performance. hammersley (1993) encapsulates this type of learning process as “sound practice cannot amount to the straightforward application of theoretical knowledge, but is an activity that necessarily involves judgment and draws on experience”.[footnoteref:98] [98: hammersley, m. (1993) ‘on practitioner ethnography’ in hammersley, m. ‘controversies in classroom research. buckingham: open university press, p. 430) ] in many instances, the findings from this study indicate the effectiveness of the time, space and guidance provided to reflect. reflective practice of involving ‘how i can improve’ is designed to entrench learning from experience by assisting students to think critically on the basis of experience and feedback, to improve the continuing work on behalf of the client and help students to understand the qualities of their work to date and what to do to improve those areas which are less developed.[footnoteref:99] bergman suggests that reflections can expose students to new understanding in a constructive and explicit way, rather than just hoping that students will absorb the important lessons of how to behave in a professionally, ethically and responsibly simply through a clinical experience.[footnoteref:100] as such, it has been argued that the need to embedded reflective practice is a developmental path to a higher level of professionalism.[footnoteref:101] [99: the best known work on reflective learning in a professional context is by schon who created the term ‘reflective practitioner’ – supra 11 ] [100: bergman, p. (2003), supra 18, p.109] [101: leering, m (2014) ‘conceptualizing reflective practice for legal professionals’, journal of law and social policy, p.99-100, available at: http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1191&context=jlsp] the clinical module featured in this study requires students to write a detailed reflective[footnoteref:102] account about preparation for a task, how they performed and how they intend to improve taking into account the theory of practice. in this paper, the findings have shown that students have begun to develop critical thinking about their performance and methods to continuously improve. [102: hyams, r., (2010), supra 30] some of the generic questions students were asked to reflect on at the start of the module and then to evaluate this at the end of the module include questions such as: · what do you understand by the term ‘a good lawyer’? · what sorts of skills should a ‘good lawyer’ possess? · how is ‘a good lawyer’ different from ‘a lawyer’? · do you possess these skills? · how will you go about acquiring the skills of ‘a good lawyer’? · how will you know you have achieved your goals? however, from reflecting on the findings, it is proposed that a more constructive approach to reflection would help to explicitly draw out the key learning outcomes of professional responsibility. constructive reflection is built on the premise that learning is an active process, necessarily situated to construct knowledge[footnoteref:103] rather than acquiring it through a detailed and guided cycle designed to assist the students in deeper and more personalized engagement of learning. from reviewing the findings, a proposed constructive reflection cycle has been illustrated in table 3. [103: dewey, j. (1938) experience & education. new york, ny; vygotsky, l. (1978), mind in society: the development of higher psychological processes. cambridge, ma: harvard university press.] constructive reflection requires the active role of the tutor to help students construct knowledge.[footnoteref:104] tutors are encouraged to provide clear questions or statements aligned to learning outcomes which creates a robust framework for students to question themselves and their strategies, formulate ideas, action plans for improvement after the clinical process. through the constructive guidance, students are able to construct their knowledge actively, aligned to the aims and outcomes of the module. [104: vygotsky, l. s. (1978). mind in society: the development of higher psychological processes. cambridge, ma: harvard university press. p.58] as such, it would be useful for students to use the professional development matrix designed in table 1 of this paper against which to evaluate themselves.[footnoteref:105] [105: see table 1 on pg.7 of this paper which comprises of the fundamental knowledge, skills and characteristics of professional responsibility. ] figure 1: framework of embedded reflection in a clinical module students will be directed to identify the skills and values of a good lawyer as currently being required, but more specifically using the skills and values now identified as key components of professional responsibility. this will help serve two purposes: it will enable students to develop the life-long skill of self-reflection and continual improvement and it will give students the opportunity to become familiar with the requirements for competent practice.[footnoteref:106] [106: the maccrate report, supra 7, the carnegie report, supra 16 and the best practice report, supra 38.] 4. for academics integrating skills and values throughout the law curriculum here are some thoughts which may help programme leaders to consider when thinking about how to integrate and embed relevant skills and values into the curriculum. · undertake a skills audit within the law programmes to determine gaps in the teaching of the components of professional responsibility[footnoteref:107] [107: in section c of recommendation 8, the maccarte report recommends law schools to undertake a skills audit to determine which of the skills and values described in its statement of skills and values are presently being taught in its curriculum.] · identify three sets of top 5 skills and values to integrate into each year of the law programme. this study indicates that further work is needed in the clinical module and across the full suite of modules in the law programme to embed opportunities for students to undertake reasoning and judgement skills in particular. · consider the steps that will be put in place to bridge the gaps identified. this study indicates that initial teaching and refresher workshops on professional responsibility are necessary to give students the confidence to identify and address similar issues in the future. it is also necessary to highlight good practice in key lawyering skills. · reflect on whether the skills and values of professional responsibility are taught across the programme and how they are taught. findings indicate that it is helpful for students to understand the learning outcomes and how they will be taught and assessed. · reflect on whether these skills and values can be gained through experiential learning · develop relevant support for students to draw out the learning gained from experiential learning, in particular the characteristics of professional responsibility. · consider how personal development activities enhance the overall skills and values training? conclusion the aim of this study was to examine whether cle as a learning methodology can successfully facilitate the development of students’ awareness of professional responsibility in law students. although there is a rich repository of literature in this field, there is little in the way of empirical data evaluating the link between utilizing cle to develop specific skills. the study employed a phenomenographic methodology to evaluate the variations in student learning and presented findings which suggest that clinics have the capability of developing and enhancing a variety of lawyering skills, awareness of values and characteristics of a competent lawyer and facilitate the development of new knowledge and deeper understanding of the application of law. the findings from this study show that students believed they had acquired learning and acquisition of knowledge, skills and character building during the clinical experience and their comments demonstrate a greater awareness of this.[footnoteref:108] the findings suggest that students learned most effectively through: [108: however, this paper did not seek to make an assessment of whether students’ learning of professional responsibility actually had developed.] · understanding and applying the law in actual problems; · learning from mistake made; · making mistakes and learning from it; · developing confidence in some key lawyering skills such as learning to solve a client’s problem; · communicating clearly in an accessible manner with clients and stakeholders; · and in a small number of situation identifying ethical considerations within a client’s problem. there is some indication from the study that students believe they have developed greater awareness of professional responsibility such as working autonomously, learning to deal with uncertainty and emotions, working with integrity and confidence. there is also some evidence of a sense of professional identity and some sense of attitudes, moral and ethical practicalities in legal practice. despite students’ awareness of this high quality learning, they were unable to confirm whether they were approaching a competent professional standard, including not understanding what competency means within the context of various skills and values and undertaking practical work without adequate knowledge of the substantive law. the study concluded by offering a reflection on how clinics could be better utilized to constructively capture all the opportunities to develop professional responsibility. these reflections include thoughts on guiding students to understand the learning outcomes and assessment measures of a clinical module, guiding students to understand the value of putting the horse before the cart, designing a clinical module around a living theory framework as identified in table 3 of the paper on, whilst embedding reflections in a constructive and structured manner in the clinical module. with the ongoing research in this field, some key areas are in need for future research: · whilst it is acknowledged that employing a suitable methodology could be challenging, it is proposed that clinicians and academics could describe and measure how effectively their clinics achieve the intended outcome and aims of a clinical module. this will offer valuable insight into the real educational value of cle and establish its link between various skills development through this learning methodology; · develop a level of competency feedback matrix that is meaningful for students;[footnoteref:109] [109: there is already some work on this has been undertaken by gold, n. (2015), supra 1; stuckey (2014), supra 4 and grimes & gibbons (2016) supra 91] · develop effective methods of embedded reflection in clinical courses throughout a variety of stages of the clinical experience to actively draw out students’ development of professional responsibility; · constructively aligning elements of professional responsibility to the learning, teaching and assessment in clinical modules using the living theory framework; finally, the paper concludes by offering some thoughts on what all of us could do to integrate skills and values throughout the law curriculum. personally, these reflections will help me redesign and enhance the existing module and i hope that there is some value in this for other clinical modules. problem-based learning and clinical legal education: what can clinical educators learn from pbl? cath sylvester1, jonny hall2, elaine hall3 this paper originated as a session at the society of legal scholars conference in leicester in september 2002. the writers4 have been teaching in northumbria university’s student law office for a number of years. we knew the practical benefits of clinical legal education but two particular problems presented themselves. the first was articulating the rationale for doing it beyond the fact that it exposes students to real practice. given the fact that the uk already has a training contract regime whereby trainee solicitors spend the first two years of their professional life being supervised and supported by qualified professionals, what is the purpose of clinical legal education? the second problem we had arose when we looked at our year 3 training programme5 and then student attitudes and ability when they reached the year 4 programme. we found that many of our new year 4 students did not engage in our firm meetings to discuss other students’ cases very well. that once the client had been interviewed many of them simply approached their supervisor for the next step. that they effectively expected the supervisor to tell them where to look for the law, or just tell them the law. in short that they had some way to go in becoming effective problem solvers. problem-based learning and clinical legal education:what can clinical educators learn from pbl? 39 1 principal lecturer, director of student law office, school of law, northumbria university 2 senior lecturer, deputy director student law office, school of law, northumbria university 3 research associate, school of education, communication and language sciences, university of newcastle upon tyne 4 reference to the writers throughout this paper is to cath sylvester and jonny hall who work in the student law office. elaine hall was responsible for designing the research and evaluating it 5 in year 3 of the degree students run a simulated case study. they are required to interview an actress about a legal problem and then undertake certain simulated tasks: writing to the client and opponent, keeping attendance notes, managing the file etc. in year 4 students run cases fully for members of the public under the supervision of qualified lawyers. it was these difficulties that drew us to the theory of problem based learning (pbl) and its methodology. this paper explores this element of what we are trying to achieve through the clinic experience, the basic theory of pbl6, a description of the problems that we have encountered with our programme, the implementation of pbl in our year 3 programme and some research conducted into the student experience in our new year 3 programme. clinical legal education at northumbria unlike other providers of professional education, both for the barrister’s qualification – the bar vocational course – and solicitors – the legal practice course, northumbria university places the activities of the students in the law office at the heart of the professional training that students are being given. there can be many claims for the positive role that the clinic can play. it has been argued that the clinic experience can encourage students to undertake pro bono work7, that it can orientate some students towards social welfare law8, that skills can more effectively be taught through real cases. we believe that all of these are true but that a key goal of clinic training should also be to assist students to bridge a gap. the gap between on the one hand being taught discrete law subjects in the classroom and reproducing that knowledge for examination and on the other assisting a client in real life whose problem stretches across several areas and encompasses law that they may not have encountered before. the clinic at northumbria is one of the longest running clinical programmes in the uk9. it started in 1981 based in a room in the university (then polytechnic) and was offered to small numbers of students taking a legal methods and institutions course. because of the constraints of the then professional practice rules for solicitors and a general concern about a possible threat to local solicitors it was limited in what it could do. the clinic could only advise students in the university, it could not go on the court record as acting and could not apply for legal aid for eligible clients. the programme was motivated entirely by educational objectives and, as student enthusiasm for it grew, the university expanded its provision. in the early days it appears that no one thought of the clinic as having a role to play in provision of legal services in the area and because of the above limitations its contribution was restricted. indeed, in 1988 the clinic was based in a local law centre10 in order to increase the number of cases in the clinic because at that time there was a struggle getting enough appropriate work. it was only in 1992 when the student law office as it now is, opened in the university. the professional rules had changed to allow us to act for members of the public and the local profession had been reassured that we would not jeopardise their practices. in the same year the 40 journal of clinical legal education july 2004 6 while it has been described many times we believe a brief description of the theory is necessary due to the fact that pbl has seen very little take up in law schools. 7 including for example the attorney general for england and wales 8 see for example “beyond skills training” stephen wizner clin. l. rev 7/2 2001 and see also “striving to teach justice, fairness and morality” jane harris aiken, clin. l. rev. 4 1997 9 the first cle programmes in the uk were started in the mid 1970’s at warwick and kent universities. by 1980 only four clinics remained in existence at birmingham, warwick, south bank and northumbria. 10 gateshead law centre hosted an advice session run by students from 1988 to 1991 university enrolled its first year of students on a new four year exempting law degree course11 which combined the academic and professional requirements for legal training in one integrated course. clinical legal education was an obvious contender for delivering some of the skills elements required by this new degree12 and the change in the rules gave us the opportunity to offer a much more intense programme. the exempting degree from its outset aimed to incorporate the development of skills with the learning of academic law. the degree meets all the necessary academic requirements for the qualifying law degree13 together with the more practice orientated areas covered by the current legal practice course for those wishing to become solicitors and the bar vocational course for those wishing to become barristers. however, the course is unique in that it integrates the two elements from day one of the 4 year degree and does not distinguish between them. consequently in year 1 students cover some of the more traditional subjects such as contract and property law but will also study a combination of criminal litigation, crime and evidence in a series of concurrent and interlinked lectures and seminars. in year 2 students study tort, civil litigation and procedure using a similar method. from the outset legal skills will be incorporated where appropriate, so year 1 students start to practice and develop their advocacy skills in criminal litigation seminars by presenting mock bail applications. students are introduced to the student law office programme in year 3 when they undertake a training programme. in year 4 the student law office real client programme is a substantial part of their final year programme. although year 4 students also study additional options, the core of the year is the student law office programme and a project. this combination gives students enough flexibility in time to manage their student law office case load professionally and complete their other academic commitments14. the motivating force behind the development of the clinical programme to its current form at northumbria was hugh brayne, who following a visit to a clinic at the university of connecticut in 1990, realised the potential of clinical education ‘i was able to see what law students were really capable of...they took almost total responsibility for big cases, including serious crime and appeal cases, and were clearly doing it well’15. he also saw the benefits of proper training programmes to prepare students for clinical work. clinical work at northumbria has had the luxury of being driven primarily by educational and not practical objectives. from the outset the real client programme was backed up by a training programme concentrating on the more widely recognised lawyers’ skills; interviewing, research, drafting, negotiation and advocacy16. by 1994 the student law office was a compulsory element for all year 4 students taking the exempting degree and we provided a training programme based on a simulated case study to year 3 students with the aim of preparing them for their real client work. problem-based learning and clinical legal education:what can clinical educators learn from pbl? 41 11 the university of northumbria remains the only provider of the integrated course which combines all the elements required for a qualifying degree and the requirements of the legal practice course or bar vocational course. 12 the contents of the law degree legal practice course and bar vocational course are determined by the joint announcement of the council for legal education and the general bar council 1995 and 1999 and the lpc written standards or the bar vocational course core specification requirements and guidance. 13 ibid 14 for more detailed breakdown of the 4 year curriculum for the exempting degree see the appendix e. 15 hugh brayne ‘law students as practitioners’ teaching lawyers skills webb and maugham 1996 butterworths 16 referred to by the acronym drain skills. these skills were originally identified as key skills to be assessed as part of the legal practice course with a few permutations on the way we have broadly retained this approach but it is the year 3 programme that we have subsequently changed. both year 3 and 4 programmes have evolved. in 2002 the year 4 programme expanded to play a more significant role. in terms of staffing we have been able to establish some academic staff as being entirely law office based and have retained and increased a group of staff who are enthusiastic about clinical work. we currently cater for intakes of over 120 students on each of years 3 and 4. we have 3 members of staff based full time conducting cases in the law office, two trainee solicitors and 12 other staff members who supervise law office work. in addition we have quality marks from the legal services commission for providing specialist advice in housing and employment law. over the years we have become very skilled at identifying appropriate cases for clinic and have become more adventurous about what students can do. our programme forms a compulsory element of the exempting degree and is an assessed course integrated into the curriculum. the aims of the law office were not only to develop traditionally recognised lawyers’ skills17 and to give the students a taste of real practice. from the outset we also wanted to encourage a shift in approach to tackling legal problems; one that took into account all the complex influences that affect the outcome of every case. we wanted students to solve problems not just by reference to text books but also by reference to the other factors affecting legal decisions. central to this was that there should be time within the programme for students to reflect upon what they do. the idea of the reflective practitioner, established by donald schon’s work18 is widely recognised as an important element of experiential learning. schon talks of a ‘professional artistry’ whereby experienced practitioners ‘frame new problems’ with reference to their past experiences. our undergraduate students didn’t have much past practical legal experience but they had legal knowledge and general knowledge and a range of personal experiences all of which could help frame the problems presented by the law office work. the year 4 programme aims and learning outcomes19 set out clearly some of the wider educational aims behind the development of the law office programme. it comes as no surprise that the document refers to the development of skills of research, interviewing, negotiation, drafting and advocacy. however, this is just one of ten aims the majority of which support the overall aim of ‘shifting the emphasis of student learning from a subject centred to a client centred approach’20. the objectives embrace the necessity of reflective work21 as part of the experiential learning cycle, they also refer to development of students’ analytical skills and of their abilities to plan, progress and action cases and to identify and respond to the a particular needs of the client. these were ambitious objectives, but we hoped that the integrated nature of the exempting degree would prepare students for the year four programme. in addition all students taking part in the year 4 programme had to participate in a programme in year 3 which was to prepare them for the live client work. 42 journal of clinical legal education july 2004 17 ibid 18 donald schon – educating the reflective practitioner 1987 19 slo aims and learning outcomes, see appendix a 20 see appendix a. 21 see donald schon’s work on the reflective practitioner and kolb’s learning cycle for the part played by reflection in experiential learning. the mechanics of the year 4 programme are that students are split into small ‘firms’ of six students. each firm is supervised by a qualified member of staff and specialises in a subject area22. the firm members are not selected with reference to any criteria and many students will be specialising in an area of law they may not have learnt in lectures or seminars prior to the law office programme. within the firms the students usually work in pairs on a case and typically will have two to three cases on the go at any one time. cases are not pre-selected; indeed the only indication of what is in store is a brief enquiry form which gives a short statement of the problem described by the client. students initially undertake an information gathering interview and it is at this stage that the students and the supervisor take a decision whether to accept the case or not. the firms meet once per week for an hour meeting. the contents of the meetings are not prescribed. they may be used to review skills work, to plan ongoing cases and discuss tactics, to review the entire case load of the firm or to concentrate on one particular case. the day to day work on the file is carried out by the students, individually or in pairs, when they prepare letters, research and carry out interviews. a lot of work progressing the file is done individually and then checked and discussed with the supervisors. students are assessed on their work though the year. assessment is not only on the basis of the development of the drain23 skills and reflective ability but also on their imput in practical sessions through the year. initially the law office assessment regime avoided assessment of anything that could not be evidenced in written work, but in 1998 the criteria changed to allow some recognition of the students’ participation and development in practical sessions. to reflect this, assessment criteria were prepared for practical work which included some rather cautiously worded requirements for the development of some of the lawyering skills identified in the objectives. one of the criteria we look for when assessing the students practical work is that they ‘begin to develop an ability to review case files and to plan the conduct of a case and to begin to develop an ability to manage and analyse factual information on case files’. the tentative use of the word ‘begin’ reveals how much of a struggle we felt this would be when we first drafted these criteria. increasingly we were having conversations with others teaching in the law office that, whilst the students were coming into the year 4 programme with a basic understanding of interview skills and drafting procedures, it was an immense struggle to get them to ‘think like a lawyer’. some of these concerns are obviously shared by the profession who have often bemoaned the compartmentalisation of legal subjects and the inability of students to relate their learning to real problems: “as lawyers we don’t get a set of instructions and say “that is a contract issue. i don’t have to think of anything else.” so why do we teach law that way?”24 problem-based learning and clinical legal education:what can clinical educators learn from pbl? 43 22 in 2002 the slo yr 4 programme moved towards establishing three specialist areas of work ; employment law; housing law and civil litigation. whilst other areas have developed through the year these areas remain very fertile sources of appropriate cases. 23 op cit. 24 melissa hardee chair of the legal education and training group “law society gazette,” 13th november 2000. there is concern also about students’ ability to research and analyse the law and facts: “we would not mind the law degree covering less areas of law so long as graduates had good analytical and research skills.”25 there is also concern expressed about the ability to problem solve: “a criticism sometimes made of solicitor’s training is that it is insufficiently rigorous; that trainees are not taught adequately to manipulate the law and devise strategies to meet the facts of a case and the demands of a client”26 we argue that two central aims for professional education have to be to prepare students for continuing education27 and help them become effective problem solvers.28 we believe that clinic can help deliver these aims and that when one looks at other disciplines (most obviously in medicine, engineering and health care) these issues are being tackled through the use of pbl. a definition of pbl “problem based courses start with problems rather than the exposition of disciplinary knowledge. they move students towards the acquisition of knowledge and skills through a staged sequence of problems presented in context, together with associated learning materials and support from teachers”29 the crucial and defining element of pbl is the presentation of the problem before complete subject knowledge is acquired.30 it cannot simply be the addition of a problem to a single area that students have been taught via the traditional methods.31 the method of delivering single subject areas through lectures and a textbook and then presenting students with a simulated problem that can be answered by reference to those sources is extensively used throughout england and wales 44 journal of clinical legal education july 2004 25 andrew holroyd, chairman law society’s training committee “law society gazette,” 23rd november 2001. 26 “training framework review consultation paper” the law society, 2001. 27 see for example moskovitz: “doctors (like lawyers) spend their careers trying to solve problems and to do so they must learn how to learn” in “beyond the case method, it’s time to teach with problems,” m mostkovitz, journal of legal education, vol 42 (1992) and citing barrows and tamblyn: “no medical student can learn all the scientific knowledge she might need in practice, and much of what she does learn will soon be forgotten or obsolete. when she gets into practice, she must be able – without the help of any teacher – to read what she needs to read in order to learn how to solve a patient’s current problem. the problem method is the best way to get a medical student headed in that direction.” from “problem based learning: an approach to medical education”, hs barrows and tamblyn, springer verlag, new york 1980. 28 in fact some of the key components of this skill are contained in the joint statement issued by the law society and general council of the bar (1999) relating to qualifying law degrees in england and wales: “b. general transferable skills students should be able: i. to apply knowledge to complex situations; ii. to recognise potential alternative conclusions for particular situations, and provide supporting reasons for them; iii. to select key relevant issues for research and to formulate them with clarity; iv. ... v. to make a personal and reasoned judgement based on an informed understanding of standard arguments in the area of law in question; vi....” 29 “the challenge of problem based learning,” boud and felleti eds, kogan page, (1997) 30 programmes appear to differ upon how much traditional teaching there is prior to presentation of the problem 31 ibid. on the legal practice course and bar vocational course. this is not pbl and limits, in our view, the learning process while of course providing some opportunities for students to imitate expert’s skills.32 pbl pioneers barrows and tamblyn33 described the detailed steps involved in pbl: 1. the problem is encountered first 2. the problem is presented in the same way as presented in reality 3. the student works with the problem in a way that permits ability to reason and apply knowledge to be challenged and evaluated appropriate to his level of learning 4. learning areas are identified in the process of work with the problem and used as a guide to individualised study 5. skills and knowledge acquired are applied back to the problem to evaluate the effectiveness of learning and to reinforce it 6. learning that has occurred is summarised and integrated into the student’s existing knowledge and skills boud added the following: 1. students take an active part in planning, organising and evaluating their own learning 2. problems are multidisciplinary or transdisciplinary courses – this is far closer to real life where problems are not encountered in neatly packaged subject areas. 3. focus is on the process of knowledge acquisition rather than the products of such processes – for our clinic experience the focus on the process of knowledge and acquisition and of producing a solution is even more important than in pbl courses designed to deliver knowledge and understanding of substantive areas 4. staff are facilitators not instructors 5. students learn to assess their own learning rather than relying on others for this34 for an example of pbl on a law course the reader is referred to the examples given and explanation by jos moust35 of maastricht university which remains the pioneering law school in europe which has embraced the method. a brief summary of the process used is that students are presented with a problem and work in groups. in his article moust describes this as the “seven steps” method: “step 1 clarify terms and concepts not readily comprehensible problem-based learning and clinical legal education:what can clinical educators learn from pbl? 45 32 “in fact, most teachers use problems to test, or promote, application of previously acquired knowledge. the problem is not posed first in the sequence. there is no independent inquiry outside of the assigned materials or resources. the teacher remains the expert who eventually provides a solution to the problem. students may learn by imitating the expert’s steps some problem-solving skills” “ david a cruickshank “problem-based learning in legal education,” in “teaching lawyers’ skills” webb and maughan eds, butterworths, 1996. we discuss some of these problems later in this paper. 33 op cit. 34 “problem based learning in perspective,” boud, in “problem-based learning in education for the professions,” boud ed, higher education research and development society of australia, sydney (1985) both cited by cruickshank op cit. 35 “the problem-based education approach at the maastricht law school,” jos moust, the law teacher step 2 define the problem(s) involved step 3 analyse the problem(s): brainstorm step 4 analyse the problem(s): make a systematic inventory of the results from the brainstorm step 5 formulate learning objectives step 6 collect additional information outside the group (independent study) step 7 synthesise and test the newly acquired information”36 the advantages of pbl many claims have been made for the advantages of pbl. one theory is that learning in the context of a problem should improve students’ abilities to recall that information at a later stage37. however, research findings are at best mixed with some finding no difference or a decrease in performance and others finding increased retention.38 this could be explained by the fact that over the same time period students are not just learning the subject but also process skills.39 there is clearly a debate that continues about the efficacy of using the pbl method exclusively to impart knowledge to students. the writers themselves have concerns about whether the use of a pbl approach can adequately provide the students with the fundamental doctrinal knowledge necessary for the foundation subjects of an english law degree40. we wonder whether it is time effective to always require students to begin with the problem and learn the detail of the discipline by forming their own learning objectives and then meeting to synthesise findings. we have concerns that there can be full coverage of the discipline within the time frame available using this method. on the other hand, if some traditional methods of teaching are inserted at the start of the course will that not defeat the object of the students defining their own learning objectives and taking responsibility for their own learning? in the context of clinical legal education at northumbria university we are not primarily focussing on the acquisition of knowledge however. before entry into the student law office students on 46 journal of clinical legal education july 2004 36 ibid. p.17 37 “pbl forces the students to learn the fundamental principles of the subject in the context of needing it to solve a problem. hence, the subject knowledge is learned in formats different from those from the traditional subject-based format. we hope (and are yet awaiting irrefutable evidence) [our emphasis]that this makes a significant improvement in a student’s ability to recall and later use the subject knowledge.” “problem-based learning: helping your students gain the most from pbl” d.r. woods, waterdown, canada (1995) 38 see summary of findings in “students’ evaluation of a learning method: a comparison between problem-based learning and more traditional methods in a specialist university training programme in psychotherapy,” sunblad et al “medical teacher, vol 24, no.3, 2002,pp.268–272.” on measures of knowledge, the latest reviews of research in the medical field point to little or no difference between students in traditional programmes and those in pbl ones. see “effectiveness of problem-based learning curricula: theory, practice and paper darts,” geoffrey r norman and henk g schmidt, medical education 2000; 34:721–728 and. “effectiveness of problem based learning curricula,” j colliver, acad med 2000;75:259–66. 39 d.r. woods op cit. citing the view of albanese and mitchell that about 20% less subject knowledge can be covered in a pbl course compared to a conventional course “problem-based learning: a review of the literature on outcomes and implementation issues.” 1993, academic medicine, 68, 52–81. 40 as required to practise as a barrister or solicitor with a qualifying law degree (“schedule 2 joint statement issued by the law society and general council of the bar” 1999) our law degree learn through a blend of what might be termed the case method and through what might be termed teaching using problems. the intended learning outcomes of the student law office experience are not primarily focussed on coverage in a discipline in the way that a more traditional lecture seminar course would be. this would not be possible anyway given the fact that the law the students encounter is dependent upon the types of cases that come into the office. our important aims and learning outcomes include:41 ● shift the emphasis of student learning from a subject-centred to a client-centred approach. ● develop skills of problem solving by analysing factual information arising from your case, applying the results of legal research and identifying the strengths and weaknesses of your case. the power of the clinic experience to assist students to become better problem solvers has been recognised for some time. indeed, moskovitz recognised this when he advocated moving to the “problem method”: “problem solving is the single intellectual skill on which all law practice is based...”law school clinics can give students this training, but clinics are at the fringe of legal education, usually reserved for a small number of third-year students.”42 we believe it to be true that clinics, as with pbl, can develop some of the attributes of problem solving. we also recognise that problem solving as a skill of itself is ill defined and there is much doubt about whether it can be taught. cruickshank43 argues that a less ambitious case can be made for pbl. that pbl can provide: ● a basis for trial and error use of problem-solving strategies and hints ● a connection for the individual between the specific knowledge base and best personal approaches to typical problems ● an exposure to how others, peers and experts, solve the same problems ● a potential for learning and articulating an individualised method of problem-solving that will shorten the time span between novice and expert skill attainment the question is whether clinical legal education, and in particular the model used in our slo year 4 programme is pbl as defined? they share some of the same attributes. the problem is of course posed first in the sequence, the students never have full knowledge of the law on which the problem is based (sometimes they have none). students discuss the problem collaboratively (in pairs at least) and will identify the areas for research. they will feedback this research at the weekly firm meetings and discuss it with their peers and their supervisor. they will go on to identify new learning objectives (fact gathering and legal research) and they are required to reflect on the learning experience. however, while some of the elements of the pbl approach were present in the year 4 programme, they were not being utilised in a way that fully assisted students with problem solving. of course some students did develop these skills to a high level and others to lesser degrees. we considered what it was that appeared to be restricting the universal development of problem solving skills in the year 4 programme and identified the following issues: problem-based learning and clinical legal education:what can clinical educators learn from pbl? 47 41 a full list of the aims and learning outcomes appears in appendix a 42 op cit. although this article appears to advocate the use of problems without some of the other methodology usually associated with pbl. 43 op cit. the nature of the problem whilst clinical programmes always produce a wealth of raw learning materials in the form of client instructions these can be overwhelming to students. barrows and tamblyn44 identified the complexities brought by using real clients as a source of learning material, ‘the available patient may present complexities or unrelated problems that can distract or confuse the learner. ....although important at some time, these may detract from the immediate value of the patient as a learning experience in certain stages of the student’s education’. we were providing students with tools to refine their interviewing techniques and their research but we did not seem to be providing them with techniques for problem solving. some students were failing in the basic steps in organising the material given to them by their clients. they were failing to identify the issues or problems arising from the case and to distinguish the relevant from the irrelevant. they had difficulties processing and analysing information in such a way as to develop a case plan or theory and in reviewing each step of the case in the light of their previous case plans and findings. the tunnel vision approach to problem solving one of the benefits of the exempting degree is that from the outset practice and procedure are taught in such a way as to highlight the links between the areas. so, for example criminal litigation is taught in conjunction with evidence and criminal procedure. nevertheless the teaching methods are typically through the traditional lecture/seminar method. of course the typical seminar poses a problem, having provided students with the necessary information and references through prior lectures. problem solving in this form is quite rightly, at the heart of the degree. however, some of the techniques required for seminar preparation are not necessarily useful for clinical work, indeed they can militate against developing a technique for solving problems in a clinical setting. the significant differences are that the seminar problem has been written to test the students understanding of a subject area. the scenario is fixed and students preparing for the seminar learn very quickly to ‘interpret’ what is being asked for from the particular set of facts presented by the problems. the problem contains a series of cues which will send the student off to research the relevant area and come back with a range of answers. there is rarely any wholly irrelevant information in the question or any information which draws in knowledge from another areas or even general knowledge. the information is usually already presented in an organised and logical way, in fact usually the first stage of any problem solving approach has already been done for the student – the information clearly defines the problem. indeed both lecturers and students alike find it very disturbing when students do go off on tangents. everyone likes to feel that there is a finite number of possible answers to the question. in a clinical setting problems are client centred. the problem itself comes from the client and may include much unnecessary information. it may disguise a number of different problems not all of which will necessarily be legal. it will almost certainly cut across subject boundaries and will require interpretation and investigation of the factual information before students can even ascertain what the problem is. add to this an undercurrent of non verbal information such as whether the client would make a good witness, what are the client’s real motives behind this – just defining the problem 48 journal of clinical legal education july 2004 44 barrows and tamblyn op cit. is a huge step. generally, early first interviews with clients are over very quickly. students don’t appreciate the range of information they need, for example that it is as important to know whether your client can afford to pay the court fee as whether their case demonstrates all the legal elements of a claim in negligence. students struggle to understand their role in identifying the problem and expect the client to do this for them in a much more coherent way. in addition students are not prepared for the fluid nature of the case. having identified the issues in the case they are often positively annoyed when the client changes what they say or is confused. when the students have found their range of answers they are not just putting them to their clinical supervisor to approve they are putting it to the client who has the ultimate say in which way the case will progress. ‘many fail to recognise that the information they can learn only from the client – the client’s perceptions, opinions and concerns, as well as her strengths and resources – is vital to building and executing a litigation strategy that will constitute success in the client’s eyes.’45 the problem of the preconceived roles. the study of law does not necessarily explain to students what the role of the lawyer is. ‘whilst the student has vivid images of dealing with court, staff, negotiating with the opposing counsel and arguing before judges, the relationship with a client is often abstract and minimised’.46 often traditional teaching methods reinforce this. the lawyer is the expert, just as the lecturer is the expert. the lawyers’ job is to find the range of legal answers to the problem and to present them persuasively to the relevant legal tribunal and to manipulate the adversary system as far as possible to the client’s advantage. in the same way the seminar tutor takes an answer and uses it to throw up different aspects of the same subject area or to challenge the students’ response. problem solving tends to be approached from the stand point of how the court would interpret the facts. whilst this is a necessary skill for student to master in order to advise properly, it is not necessarily the same approach as that required to assess the best solution for this particular client with these particular circumstances. students have never had a client at the centre of the case determining its development and this may come as a shock. some thrive on the motivation of representing a real person others never accept that the client is king; ‘we have to put up with too much rubbish from client’s not turning up. we are expected to be there at their beck and call, at the end of the day we are doing them a favour – it would be nice to be treated with more respect’47. reluctance to draw their own and on others’ wider experience in the problemsolving process. students are rarely required to work collaboratively during their studies. whilst students probably do so informally in preparation for seminars there is no encouragement of a sharing of ideas. obviously all contributions will inform a seminar discussion but there is no sense of working together to produce the complete range of responses. in clinical work it is the working out process that is as important as the conclusions. if students don’t understand how the decision was reached problem-based learning and clinical legal education:what can clinical educators learn from pbl? 49 45 who’s listening? introducing students to a client centred, client empowering and multidisciplinary problem-solving in a clinical setting – v pualani enos and lois h kanter. clinical law review, fall 2002 . vol 9 no.1 46 ibid p86 47 extract from an anonymous feedback sheet from a year 4 student at northumbria participating in the clinical programme they can’t monitor the ongoing conduct of the case and respond to unexpected developments. therefore the concept of being a ‘firm’ – a group with a common interest and of the meeting being a venue to try out ideas with a view to developing a case theory, is totally unknown to our students. in addition there is a feeling of inhibition about expressing their own views or bringing to bear their own experiences. in some firms this happens naturally usually led by one student who takes the lead by being very open about their thought processes which reassures the others that this is acceptable. in other firms students remain focussed on their own cases, looking for acknowledgement from their supervisor that their proposed course of action is the right one. when the firm meeting works well collaboratively it is widely appreciated by students and this is often referred to in student feedback.48 creative and co operative thinking this is all part of the reflective process; the idea of framing each new enquiry against the experience we already have. student’s found this relatively easy when assessing the strengths and weaknesses of an interview but much harder when trying to frame the issues in their cases with reference to their wider knowledge. of course students often do lack a wider understanding in which to put the issues in context and this may inhibit creative and expansive thinking but it can be a benefit too ‘ once acclimatised to the context, the student’s lack of experience can be a boon, ...by making them less jaded and more open to thinking ‘outside the box’49. conflicting pressures of course one of the pleasures of teaching in a clinical setting is that student motivation is usually very high. students normally take very seriously their responsibility to their clients and take ownership of their cases. on entry to the clinical programme their main priority is to have their own case load. this in turn places pressures on what can be achieved in a firm meeting. there is a law of diminishing returns; when the firm is handling only one or two cases it is easier to get all the students to focus on all the issues of that case and to participate in decisions on it. however, when the firm is handling 12 to 15 cases it is not possible to focus on each case in the same way and students become territorial about what they do. they do not always see the need to contribute to other cases when they have their own to work on. of course there are ways round this; more complex cases involving a wider group or clinics taking a narrower area of work so that subject matter overlaps more. however, it is hard to justify to students the educational imperatives of progressing in this way when their overwhelming interest and motivation is to have their own case. the other ever present conflict with legal clinical work is conflict between educational objectives and professional good practice. whilst all our clients are aware of the educational objectives of the clinic,50 our aim is to demonstrate to students good professional practice not just the bare minimum of keeping within the professional rules. students who work efficiently and respond to issues quickly are rewarded. much of the case work never gets to the firm meeting. it is done by 50 journal of clinical legal education july 2004 48 in end of year feedback at northumbria one student identified the most enjoyable aspect of the fourth year course was ‘the sense of teamwork and support i gained from being part of such a bonded firm in the slo’. 49 biting off what they can chew: strategies for involving students in problem solving beyond individual client representation’. katherine kruse, clinical law review, vol 8 no.2 50 all clients sign a form acknowledging the educational priorities of the law office efficient students realising they need to respond to developments quickly. this hinders developing the problem solving process. in normal circumstances students take instructions and discuss these briefly at the firm meeting. they then go and research issues. there may be no time to bring this back for discussion to the firm meeting as the client cannot wait indefinitely for their letter of advice. clinical supervisors, whilst mindful of professional conduct requirements, also have time constraints on their time. the group problem solving process is curtailed or simply overtaken by events, that is not to say that individual students are not going through a problem solving process, but the message sent out to them is that this not a skill prioritised within the law office. each step of the case is not transparent and available as part of the learning process to the whole firm. the supervisor’s role – facilitator/partner not teacher. the demands of clinical work often make it very tempting to take a very interventionist role in casework, kruse refers to this as ‘the role of expert and expedition leader’ which continually threatened the goal of ‘giving the students primary and ultimate control over the problem solving process’.51 this is not surprising as the normal professional requirement for teaching in clinical programmes is a degree of expertise in an area or procedure covered by clinic. in these circumstances it is to be expected that students look to supervisors for guidance in a way that allows them to opt out or not fully engage in the problem solving process. indeed this division of labour is more comfortable for everyone concerned. at the university of maastrict tutors are given a number of introductory workshops in the pbl method. they are taught to use questions to assist the problem solving process, to control discussions so that they do not go too far off course and to assist with the group dynamics. the lecturer is more a facilitator than a lecturer. this is important; if students always perceive the tutor as the expert giving the right answer they will never truly assume responsibility for solving their own case problems. as kruse identified ‘my supervision emerged in some respects as more of a partnership between the students and me than i had experienced in the past. it was not a partnership of equals, because i knew more than the students did. but it was a partnership in which i, like my students, shared all i knew and all the limits of what i knew’.52 as a result of our concerns about the preparation of our students for the clinic experience, both through their education generally, and in the specific year 3 training programme, we turned to the pbl methodology to see what lessons could be learned from it. for several years, the year 3 programme had revolved around a problem scenario. however, it appeared to the writers that there were several difficulties with the problem and the approach to the teaching sessions surrounding it. it had not been devised with a view to any of the existing experience and literature on pbl. it revolved around a faulty sofa. the difficulty that we perceived with this was that the problem covered knowledge that the students had previously covered in contract law (sale of goods legislation) and on an area that required little research. the legal issues were very straightforward and not multi layered. little was required from the students in respect of the research. instead the programme concentrated on the drain skills. this was obviously an important part of the preparation for year 4 but the skills were being practised in isolation from problem-based learning and clinical legal education:what can clinical educators learn from pbl? 51 51 see above note 42 p441 52 ibid attempts at problem solving. feedback from students was generally not encouraging. particularly feedback53 from students in year 4 who described the programme as being not good preparation for year 4 and too easy. for the year 2002/3 we decided to revamp the course. we introduced a more complex problem which the students would encounter through interviewing a client in pairs. the problem had the following features: ● the client has a disrepair problem with the window in her flat which is causing discomfort and damaging her furniture. her landlord refuses to repair it ● the next door neighbour is a tenant of the landlord. she is an alcoholic and because of this a waste problem has developed in her flat to the extent that rats have now infested both her flat and the client’s ● the client has reported both problems to the landlord who refuses to do anything about it and has told her that if she continues to complain/ goes to a lawyer he will force her to leave the flat the problem thus encompasses several areas of law including: ● the nature of the particular tenancy ● the law on security of tenure ● the law on unlawful eviction ● the law on disrepair ● the law of nuisance ● environmental health legislation ● the civil procedure rules (cpr) with the exception of the cpr students were not lectured on these topics. students had some knowledge that they could build upon in respect of nuisance and property law but had not encountered most of the areas in any detail before. we had also foreseen possible difficulties for the students in determining the type of tenancy and so had had an introductory workshop which students had prepared for by researching the facts of the client’s agreement to ascertain the type of tenancy (the difficulties that were encountered with this are discussed later). students were given prior instruction in interviewing technique and in research methods. following the interview the students met in a workshop54 having prepared an attendance note (note of the interview). they then worked in firms of 6 to identify the facts of the case (some students having got more detail than others). they were then asked to identify the problem as they perceived it and identify the learning objectives55 including both legal and factual research. 52 journal of clinical legal education july 2004 53 admittedly the feedback referred to here was not gathered in a systematic way 54 workshops generally had 1 tutor and 18 students. occasionally 2 tutors were used 55 a copy of the form used can be found in appendix b. the design of the form borrowed heavily from an example given by jos moust op cit. the tutors’ role was to go amongst the students assisting them by asking pertinent questions. tutors attempted not to give answers but to guide the students through prompting.56 the students then worked in pairs in their own time to research the problem. each pair was allocated a different area by the firm. this tended to be along the lines of the basic 3 areas: environmental health/ private law nuisance, disrepair and security of tenure. having researched the allocated areas the students returned to the workshop with a research report57 which all the members of the firm were given and the firm discussed the outcome. their task was to formulate further legal and factual research objectives arising from their learning and to begin to agree what the advice to the client should be – in preparation for each pair drafting a letter of advice to the client. the research reports were taken in by the tutors and commented upon within 7 days in order to provide the students with formative feedback. at the next workshop letters of advice were discussed by the firms with tutor feedback at this stage also. the firms were also required to begin to draft a letter of claim to the landlord and in the final workshop students considered the response of the landlord and the action and further factual research that was necessary in respect of that. throughout this sequence students were identifying disputed factual issues. where these were identified and requested relevant evidence would be provided to the students. where they were not identified by certain firms they were not provided. at least 1 student commented that he realised that he had to be more proactive in thinking about the case and what was necessary because if he did not then he would not receive the information and his client would potentially suffer. assessment the case study file that the pair kept was marked on a competent/ not yet competent basis. to a large degree this was in order to ensure that the students could keep a file properly, draft letters to a reasonable standard etc in order that they can function in year 4 and be able to develop skills in year 4 without being a liability or being unable to proceed. the assessment of the file was also in place to ensure student participation throughout the year. we also set an additional coursework assessment that was on an entirely different problem. this problem was again on an area largely unknown to the students and required research of the legal issues which spanned several disciplines. the work was completed by the students individually. it was designed to test the process of practical legal research rather than knowledge acquisition. tutor assessment of the impact of the course and strengths and weaknesses tutors discussed these issues. all 3 tutors were surprised at how well the students took to the group discussion. students often discussed the issues as if the tutor were not there. it was also felt that most of the students engaged with the problem and took finding out about the law seriously. problem-based learning and clinical legal education:what can clinical educators learn from pbl? 53 56 so, for example, when the students had simply decided to look at the possibility of the neighbour being forced to deal with the rat problem the tutor might ask if the students felt anyone else might take action 57 a template for this is to be found at appendix c. we note that the research report template (invented by others not involved with the pbl programme) has some similarities to the process the students are going through when they are working on the problem in the pbl format there were several perceived difficulties however. the most important of these revolved around the nature of the tenancy and security of tenure. it was found that the students found it incredibly difficult to navigate this area without significant input from the tutors. on a pbl course that is designed to deliver subject knowledge these difficulties may have been surmountable by allowing for several workshops on the subject to help the students slowly find their way through it. our course is not built with this objective in mind. we wanted students to gain practical legal research skills across a range of legal areas over a relatively small number of workshops. textbooks and practitioner texts concerning the nature of the tenancy at english law are a minefield for the uninitiated. we discovered that it was too difficult for the students to understand without a guide through the area. this is not to say that environmental health legislation and the law on disrepair is simple. merely that students can research these areas and then be assisted with further guidance to a good level of understanding without being given much more heavily interventionist traditional teaching in order to assist them. the above is all rather impressionistic of course. having put this new course into place we then decided to research the effect that it had had on the students from their perspective. the research design a questionnaire58 was given to all students in slo year 3 after they had completed the pbl course, comprising five point lickert scale questions designed to elicit students’ feelings about the format of the pbl element, their levels of confidence about their learning and the desirability of this format compared to more traditional methods of instruction. sixty-five of 112 students completed the questionnaire when they came to collect their case study files. this response rate is in part due to the files being the joint work of two students – frequently only one of the pair came to the office. the responses were analysed using spss software. results structure of the pbl element the pbl elements of working in a pair, working in a group to identify problems and working in a group to discuss research were all rated favourably by the majority of students, though the question of how much time was taken on group and pair work was less clear cut. 54 journal of clinical legal education july 2004 58 a copy can be found at appendix d most students (58.7%) reported that they would have preferred to be lectured on housing law before the element began. although some students felt that there might be a danger of superficiality, this did not have a significant relationship with their levels of confidence about knowledge of the law. problem-based learning and clinical legal education:what can clinical educators learn from pbl? 55 table x: positive statements about pbl element was enjoyable helped my own learning contributed to the progress of the case agree disagree neutral agree disagree neutral agree disagree neutral working in a pair 82.3% 3.2% 14.5% 81.2% 6.3% 12.5% 81.2% 4.7% 14.1% working in a group to 79.1% 6.5% 14.5% 76.2% 7.9% 15.9% 75.3% 7.7% 16.9% identify problems working in a group to 77.7% 3.2% 19% 85.9% 1.6% 12.5% 81.5% 1.5% 16.9% discuss research table xx: negative statements about pbl element was frustrating was too time-consuming agree disagree neutral agree disagree neutral working in a pair 19.7% 63.9% 16.4% 27.4% 38.7% 33.9% working in a group to 9.8% 67.3% 23% 16.4% 52.5% 31.1% identify problems working in a group to 8.2% 65.6% 26.2% 12.9% 50% 37.1% discuss research the case study agree disagree neutral was more realistic 83.1% 3.1% 13.8% was more confusing 7.8% 56.3% 35.9% was more complex 36.9% 30.8% 32.3% tried to cover too much 7.8% 46.9% 45.3% required more preparatory work 66.1% 10.8% 23.1% the case study was deemed to be more realistic than the examples used in other parts of the course and most students did not feel that it was too confusing or tried to cover too much. students were evenly split, however, in terms of the complexity of the case in relation to other example cases given in other subjects. again, the heavier workload of pbl is acknowledged by most students, though it is important to note that there is no significant relationship between considering the workload heavy and a more negative attitude to the pbl element. the case study – overall overall, while pbl appears to have had positive impacts on students’ confidence and enjoyment of the course, there is a breadth of opinion about whether more of the degree should be taught in this way, with just over half of students welcoming more pbl, just under 20% actively disagreeing and the remaining group undecided. 56 journal of clinical legal education july 2004 the case study agree disagree neutral led to an overly superficial 12.5% 50% 37.5% study of the legal issues did not cover general issues of 18.8% 46.9% 34.4% landlord and tenant law research confident un-confident neutral using textbooks 77.7% 1.6% 20.6% using practitioner texts 79.3% 0% 20.6% using halsburys 82.6% 1.6% 15.9% using the internet 82.6% 3.2% 14.3% knowledge confident un-confident neutral disrepair 50.8% 3.2% 46% security of tenure 46.1% 6.3% 47.6% environmental health law 47.6% 4.8% 47.6% practical legal research confident un-confident neutral applying all aspects of the law 81% 0% 19% to the case identifying further legal research 77.8% 1.6% 20.6% identifying further factual research 79.4% 3.2% 17.5% integrating own research with 82.5% 4.8% 12.7% others in the firm understanding of procedural issues 69.8% 3.2% 27% client relationships 79.4% 1.6% 19% tackling a similar problem in 77.8% 3.2% 19% the future readiness for slo year 4 66.7% 6.3% 27% the case study – learning the law student confidence pbl in this instance appears to have ● been an enjoyable experience for students, even though time-consuming and hard work relative to more traditional methods ● in particular, sharing research in groups was a particularly good experience for students (positive aspects of all making individual contributions contr. normal seminar format) ● been an experience that around half of students would like to repeat ● encouraged students to develop high levels of confidence in research skills and practical legal skills ● had a positive, though not so strong effect on students confidence about their knowledge of the law ● made the majority of students feel that they can cope with real cases in year 4 conclusions if nothing else, we believe that the students will come better prepared for firm meetings in year 4. given the positive responses of the students to working in groups to identify problems and learn from each other we believe they will come to the weekly firm meeting with more of an idea of what is expected from it. we believe that this will be a success in itself. we also believe that the generally good levels of confidence in legal and factual research, and the application of the results, bode well for year 4. good levels of student enjoyment and confidence should help to ensure a positive start to a challenging year for our fledgling lawyers. problem-based learning and clinical legal education:what can clinical educators learn from pbl? 57 it would be better if more of the degree was in this format. 0 10 20 strongly disagree 30 disagree neither agree strongly agree n u m b er o f re sp o n se s we believe that the pbl methodology has improved the year 3 experience. the question remains about whether it can better inform our teaching in firms in year 4. the writers attempted to use the “seven steps” model59 in initial firm meetings with all 6 students at the beginning of year 4. this did promote student discussion, cooperation and interest. the model was not persevered with however partly because the students then have to work in pairs on their cases. it became much more difficult to involve the 4 who were not running the case in the model beyond the initial meeting because they were not researching and running the case. one way forward may be to involve all 6 students in one case throughout the year while allowing the pairs to continue with running their own individual cases. the difficulty would be using cases sufficiently complex to warrant 6 students spending their time on it. we still have to continue to consider how pbl might further inform our year 4 programme. appendix a student law office year 4 “aims introduce students to real legal practice in a supervised environment and to encourage their development as reflective practitioners. shift the emphasis of student learning from a subject-centred to a client-centred approach. develop the skills required to become effective legal practitioners and in particular the skills of interviewing, research, drafting and case management. to develop students’ awareness of the professional responsibilities and obligations of solicitors and to foster a culture of client care and adherence to the rules of professional conduct for solicitors and the student law office procedures. to develop students’ abilities to analyse factual material, gather evidence and plan in order to progress their client’s case. to further develop file management, time management and recording skills. to encourage students to discuss, plan and action cases both collaboratively and individually. to prepare students for the training to be given in training contract. to facilitate an awareness of wider social, cultural, ethical and political forces that shape the legal system and are affected by it and to appreciate some of the differences between law in theory and law in practice learning outcomes students should be able to assume responsibility for the conduct of one or more student law office cases. attend and contributed to discussions in weekly firm meetings. 58 journal of clinical legal education july 2004 59 see moust op cit. plan and interview a client and accurately record and analyse the information provided by the client. identify your client’s needs and concerns and conduct your case in such a way as to address those needs. identify and research legal issues arising from your casework and present your research in a clear and effective way. develop skills of problem solving by analysing factual information arising from your case, applying the results of legal research and identifying the strengths and weaknesses of your case. develop both oral and written communication skills through preparation of written correspondence, client interviews and, when appropriate, representing clients at hearings or in telephone conversations with opposing representatives or third parties. organise, record and file information, correspondence, documentation and telephone information received in connection with your case in such a way as to comply with law office procedure and good file management. conduct your case so as to comply with the rules of the student law office and the rules for the professional conduct of solicitors. learn to work with your supervisor and other students in your firm to achieve the most effective way of conducting your case. develop time management skills so as to conduct your case efficiently and comply with all deadlines required for the proper disposal of the case. draw on your experiences from casework and your discussions within your firm meetings to analyse the skills required by live client work and to develop those skills through the slo programme. draw on your experiences from casework and discussions within your firm meetings to assess what factors affect the conduct and progress of your casework including the wider social, cultural, ethical and political considerations that might be relevant. you will be competent in the legal skills of interviewing research and advocacy in accordance with the standards prescribed by the legal practice board.” appendix b firm notes of meeting in workshop 4. you may want to make rough notes first before filling this in continue on separate sheet if necessary identification of problem/what the client wants areas for research (remember to record who is researching what) problem-based learning and clinical legal education:what can clinical educators learn from pbl? 59 keywords/phrases possible sources of information any additional notes (eg factual information you think you may need) appendix c research report identification of problem/area for research keywords research report additional information required conclusion sources updating 60 journal of clinical legal education july 2004 appendix d student law office year 3 questionnaire this has been the first year of approaching teaching slo year 3 in a different way. as part of our evaluation of this experience we need feedback on your experience of it. we would be very grateful if you would fill in the attached questionnaire before picking up your case study file and manuals. please hand the questionnaire to the office administrator. this questionnaire is entirely anonymous. the administrator will simply note that you have completed it so that you can be entered in a draw for a prize (a choice of wine or chocolates to the winner). please note that the questions relate to the first 7 workshops only and not the advocacy part of the course. problem-based learning and clinical legal education:what can clinical educators learn from pbl? 61 s tr o n gl y ag re e a gr ee n ei th er ag re e n o r d is ag re e d is ag re e s tr o n gl y d is ag re e i would have preferred to have been lectured on housing law before the case study working in a pair on the case was enjoyable frustrating helpful to my own learning too time-consuming effective in making progress on the case working in a group to identify the problems was enjoyable frustrating helpful to my own learning too time-consuming effective in making progress on the case working in a group to discuss findings and share research was enjoyable frustrating helpful to my own learning too time-consuming effective in making progress on the case 62 journal of clinical legal education july 2004 dawn lander’s case, compared to other seminar examples was more realistic was more confusing was more complex tried to cover too much required more preparatory work for each session led to overly superficial study of the legal issues did not cover general issues of landlord and tenant law the experience of working on dawn lander’s case has made me feel about researching the law through textbooks about researching the law through practitioner texts about researching the law through halsburys about researching the law on the internet about knowledge of the law on disrepair about knowledge of the law on security of tenure about knowledge of the law on environmental health problems about applying all the aspects of the law to the case about identifying further legal research as the case progresses about identifying further factual research as the case progresses about integrating my own research with others in my firm about my level of understanding about procedural issues about my understanding of client relationships/ professional etiquette about my ability to tackle a similar problem in the future it would be better if more of the law degree was delivered in this format i feel confident about working in the student law office next year. v er y co n fi d en t c o n fi d en t n ei th er co n fi d en t n o r u n co n fi d en t u n co n fi d en t v er y u n co n fi d en t s tr o n gl y ag re e a gr ee n ei th er ag re e n o r d is ag re e d is ag re e s tr o n gl y d is ag re e s tr o n gl y ag re e a gr ee n ei th er ag re e n o r d is ag re e d is ag re e s tr o n gl y d is ag re e problem-based learning and clinical legal education:what can clinical educators learn from pbl? 63 *foeeul – foundations of english and european legal systems appendix e the structure of the four year exempting law degree at northumbria university. 4-year ll.b (hons) exempting degree year 1 induction programme property 1 crime litigation & evidence contract foeeul* year 2 property 2 public law tort litigation & evidence full option year 3 property law & practice ll.b half option jurisprudence law of business associations student law office yr 3 case study year 4 ll.b one full option or two half options probate & administration ll.b one full option or two half options student law office real client programme project reviewed article: clinic, the university and society law student attitudes towards pro bono and voluntary work: the experience at northumbria university paul mckeown, northumbria university, uk paul.mckeown@northumbria.ac.uk abstract this study considers whether participation in pro bono legal work during a programme of academic study at northumbria university increases the likelihood of future participation in pro bono activity amongst law students. this was a quantitative study in which an online survey, measuring altruistic attitudes, was sent to students enrolled on the m law exempting degree programme at northumbria university. the author analysed the data by comparing the attitudes of those students who had engaged in pro bono activity during the fourth year of the programme against those students who had yet to engage in pro bono activity, being those students in years 1, 2 and 3 of the programme. the data suggests that whilst the students value engagement in pro bono activity, this is principally due to the personal benefits which they gain. in particular, respondents reported improvement in legal skills and enhanced employability as a consequence of participation in pro bono work. the data indicates that there is an increased awareness of social and economic issues whilst engaged in pro bono work but this does not translate into a desire to continue pro bono work after graduation. 1 mailto:paul.mckeown@northumbria.ac.uk it was therefore concluded that participation in pro bono work during the course of academic study does not increase the likelihood of future participation in pro bono activity following graduation. introduction the availability of public funding in the uk in relation to legal disputes has significantly reduced following the changes to the scope of legal aid under the legal aid, sentencing and punishment of offenders act 2012 coming into force on 1 april 2013.1 as many areas of law have been taken out of the scope of legal aid, individuals who previously qualified for legal aid will either be required to represent themselves or seek an alternative source of funding in relation to their case. it has been reported that the number of uk-based universities engaging in pro bono work has increased. 53% of respondent law schools stated they ran a pro bono programme in 2006 2 increasing to 91% of respondent law schools 1 the scope of legal aid was limited by the access to justice act 1999. areas such as personal injury (other than clinical negligence), business cases, boundary disputes, company and trust law were removed from the scope of legal aid. despite this most areas of law remained within scope although funding for representation at most tribunals was not available. the legal aid, sentencing and punishment of offenders act 2012 reduced the scope of legal aid further with the default position that all areas were excluded from scope with only a limited number remaining within scope. 2 grimes, r. and musgrove, j. (2006) lawworks students project pro bono – the next generation. [online] available at: http://www.probonogroup.org.uk/lawworks/docs/student%20report%20final.pdf (last accessed: 28 january 2015) p.6 http://www.probonogroup.org.uk/lawworks/docs/student%20report%20final.pdf in 20103, and 96% of respondent law schools in 2014.4 the 2014 report suggests that 70% of law schools of pro bono opportunities, assuming those that did not respond do not offer any opportunities.5 as more universities develop pro bono work programmes, and more law students have the opportunity to engage in pro bono work, it is plausible to suggest that future participation in pro bono activity might increase in the profession. this study will consider whether participation in pro bono activity whilst at law school influences future participation in pro bono activity following graduation and in their future careers. the study will be in the context of the m law exempting degree programme at northumbria university. altruism and pro bono to understand the concept of pro bono and the motivations for individuals to undertake pro bono activities, it is necessary to understand the concept of altruism as pro bono work is a manifestation of altruism in the legal 3 grimes, richard and curtis, martin, lawworks student pro bono report 2011, lawworks [online] available at: http://lawworks.org.uk/tmp_downloads/x63c118c111s132z58f116a76p34d16m64y22v10i24l80g83/ lawworks-student-pro-bono-report-2011.pdf (last accessed: 28 january 2015) p.10 4 carney, d. dignan, f, grimes, r. kelly, g and parker, r (2014) the lawworks law school pro bono and clinic report 2014 [online] available at: http://lawworks.org.uk/tmp_downloads/k150c69y95y80r23d40x93s30c57g25v44t110q78i113t5/10 14-033-lawworks-student-pro-bono-report-web.pdf (last accessed: 28 january 2015) p.10 5 ibid. http://lawworks.org.uk/tmp_downloads/k150c69y95y80r23d40x93s30c57g25v44t110q78i113t5/1014-033-lawworks-student-pro-bono-report-web.pdf http://lawworks.org.uk/tmp_downloads/k150c69y95y80r23d40x93s30c57g25v44t110q78i113t5/1014-033-lawworks-student-pro-bono-report-web.pdf profession. pro bono, or ‘pro bono publico’, literally means ‘for the public good’. however, beyond the literal translation there are many definitions. one definition of pro bono comes from the pro bono protocol: ‘legal advice or representation provided by lawyers in the public interest including to individuals, charities and community groups who cannot afford to pay for that advice or representation and where public funding and alternative means of funding is not available. legal work is pro bono legal work only if it is free to the client, without payment to the lawyer or law firm (regardless of the outcome) and provided voluntarily either by the lawyer or his or her firm.’6 if we consider this definition, pro bono work requires lawyers to act without charge or expectation of charging their clients. as such, it is arguable that in the provision of pro bono work, lawyers are displaying altruistic behaviour that is ‘generally understood to be behaviour that benefits others at a personal cost to the behaving individual.’7 gleitman et al state that ‘[o]ne of our great sources of pride as a species is our ability to exhibit prosocial behaviors [sic], behaviors [sic] that help others – assisting them in their various activities, supporting and aiding them in their time of need. but, of course, 6 lawworks. (2013). protocol text. [online] available at: http://www.lawworks.org.uk/protocol_text (last accessed: 18 january 2015) 7 kerr, b. godfrey-smith, p. feldman, m.w. (2004). ‘what is altruism’. trends in ecology and evolution. 19(3): 135-140 [online] doi:10.1016/j.tree.2003.10.004 (last accessed: 18 january 2015) http://www.lawworks.org.uk/protocol_text we don’t always help.’8 when we do help, it is often based on some ‘expectation of later reciprocation.’9 gleitman et al are of the opinion that true acts of altruism, those acts where there is no personal benefit at all, are fairly rare.10 when people are asked why they engage in such activities, most state that ‘altruistic actions make them better people’.11 it could be argued that this, in itself, could be seen as a benefit to the individual concerned. bateson and shaw have written that understanding altruism from a psychological point of view has been dominated by the ‘universal egoism hypothesis’, that is, persons act altruistically primarily for egotistical reasons. their work suggests a complementary hypothesis, the ‘empathy-altruism hypothesis’ that suggests the notion that both egoism and altruism operate simultaneously. it is also suggested that people can act for personal benefit, the benefit of others or, indeed, a combination of both.12 it must therefore be considered whether it is possible to teach or instil a sense of altruism through education. 8 gleitman, h. gross, j. and reisberg, d. (2011). psychology. 8th edn. london: w.w.norton & company ltd p.532 9 ibid. p.534 10 ibid. 11 piliavin & callero, 1991; m. snyder & omoto, 1992 as cited in gleitman et al, 2011 (see note 6) 12 ibid, pp.341-342 ‘where socrates appeared to argue that no one teaches virtues, protagoras argues that everyone teaches them’13 aristotle drew a distinction ‘between self-control and virtue applied primarily to moral dispositions as honesty, temperance, courage, justice, liberality and so on.’14 values as principled commitments are rules which are followed although not wholeheartedly committed. values as virtues are exhibited and embodied as at least a matter of second nature.15 this is an important distinction within the context of this study. we can teach students the rules, such as the professional code of conduct, but can we teach or instil a moral commitment to pro bono work, meaning that it becomes second nature to our students. it has been a matter of some debate as to the role of higher education in teaching students not just knowledge but also social virtues. heuser argues that ‘when moral and ethical considerations are built into every aspect of the primary activities of higher education-research, teaching and public servicethe ability of colleges and universities to create academic social cohesion is greatly amplified, as is their propensity to generate social cohesion in 13 pence, g.e. (1983) ‘can compassion be taught’. j med ethics. 9(4):189-91 [online] available at: http://www.ncbi.nlm.nih.gov/pmc/articles/pmc1059297/pdf/jmedeth00011-0005.pdf (last accessed: 18 january 2015) p.189 14 carr, d. (2011), ‘values, virtues and professional development in education and teaching’, international journal of educational research, 50(3), pp.171-176, [online] doi:10.1016/j.ijer.2011.07.004 (last accessed: 18 january 2015), p.172 15 ibid. p.173 http://www.ncbi.nlm.nih.gov/pmc/articles/pmc1059297/pdf/jmedeth00011-0005.pdf society.’16 lewis observes that ‘universities have forgotten their larger educational role… that the fundamental job of undergraduate education is to turn eighteenand nineteen-year-olds into twenty-oneand twenty two-yearolds, to help them grow up, to learn who they are, to search for a larger purpose for their lives, and to leave college as better human beings.’17 clinical legal education and pro bono there are many academic articles considering clinical legal education and pro bono. mccrimmon states that ‘while clinical courses and pro bono projects share common attributes, they are separate and distinct entities.’18 mccrimmon draws upon the association of american law schools pro bono project report, learning to serve, to illustrate his point. in particular, the report states: ‘both clinics and pro bono programs serve important educational values. they each provide students an opportunity to learn about the legal needs of people who are poor. they each provide an opportunity to learn about the satisfactions of serving a client. but the principal goal of most clinics is to teach students lawyering skills and sensitivity 16 heuser, b. l. (2007) ‘academic social cohesion within higher education’, prospects 37, pp.293-303. [online] doi 10.1007/s11125-008-9036-3 (last accessed: 18 january 2015) 17 lewis, h. r. (2007) excellence without a soul: does liberal education have a future? united states: publicaffairs p. xiv 18 mccrimmon, l. a. (2003) ‘mandating a culture of service: pro bono in the law school curriculum’, legedrev 4 [online] available at: http://www.austlii.edu.au/au/journals/legedrev/2003/4.html (last accessed: 18 january 2015) http://www.austlii.edu.au/au/journals/legedrev/2003/4.html to ethical issues through structured practice experiences and opportunities to think about and analyze those experiences. by contrast, the most important single function of pro bono projects is to open students' eyes to the ethical responsibility of lawyers to contribute their services.’19 whilst the report states there are similarities between clinical legal education and pro bono, it states that they are different in their objectives. however, bloch identifies that the ‘original “subject matter” of clinical legal education was essentially legal aid and public interest practice’20 whilst ellman et al state that ‘one goal of clinical teaching is to foster, and to carry on, legal practice in the public interest. but our understanding of this goal is changing, and so is our understanding of the means by which it might be achieved.’21 it appears the objective of clinical legal education has historically been public interest practice and therefore clinical legal education is a form of pro bono practice. however, bloch goes on to identify that ‘[s]ome have felt recently that a more deliberate skills orientation is needed in clinical scholarship.’22 it appears that it is this focus on skills development that differentiates clinic from pro bono. however, it is also arguable that 19 association of american law schools commission on pro bono and public service opportunities, (undated), ‘learning to serve: the commission’s findings and proposed actions’, [online] available at http://aalsfar.com/probono/report2.html#findings (last accessed 18 january 2015) 20 bloch, f.s. (2004) ‘the case for clinical scholarship’ 4 int’l j. clinical legal educ. pp.7-21. heinonline [online] available at http://heinonline.org (last accessed: 18 january 2015) p.12 21 ellmann, s. gunning, i.r. and hertz, r (1994), ‘why not a clinical lawyer-journal?’, 1 clinical l. rev. pp.1-7, heinonline [online] available at: http://heinonline.org (last accessed: 18 january 2015) 22 op.cit. note 18, p.13 http://aalsfar.com/probono/report2.html%23findings http://heinonline.org/ http://heinonline.org/ individuals conduct pro bono work for reasons other than altruistic reasons of benefiting society. setting aside the definition of clinical legal education and pro bono, clinical legal education has the potential to be used as a tool to increase a student’s sense of social awareness. grose identifies clinical education as having ‘three broad goals: providing learning for transfer; exposing students to issues of social jus-tice; [sic] and offering opportunities to practice lawyering skills.’23 for the purposes of this study, it is the second goal, namely the exposure to social justice, which the author was interested in exploring and the extent to which this goal is being achieved. however, it will be necessary to include the other goals in order to consider whether there is more than one motivating factor. it is suggested that ‘encouraging law students to become involved in pro bono work is likely to develop their commitment to, and understanding of, professional values, which should in turn lead to their active involvement in pro bono work later in their professional lives.’24 giddings comments that clinics ‘are often identified as important in enhancing the commitment of students to professional ideals and values, 23 grose, c. (2013) ‘beyond skills training, revisited: the clinical education spiral’ clinical l. rev. 19, pp. 489-515 heinonline [online]. available at: http://heinonline.org (last accessed: 18 january 2015) p. 493 24 op.cit. note 2 fostering the values that promote pro bono contributions.’25 however, giddings goes on to recognise that these claims are difficult to support with empirical data.26 in considering whether clinical programmes influence students’ sense of ethical and social awareness, schrag and meltsner recognise that there are no empirical studies that compare law graduates who took clinic with those who did not.27 however, they go on to state that ‘many thousands of lawyers have begun their careers much better able to take responsibility for helping clients, with much greater understanding of how social institutions really work, and with greatly heightened awareness of ethical issues and how to address them.’28 palermo and evans recognised this issue and stated ‘a central motive for undertaking [their] study was the need for empirical information about lawyers’ responses to ethical challenge over time’.29 interestingly, and contrary to the stated aims of clinical legal education, palermo and evans study suggests that students who had a clinical experience were less interested in pro bono work over time.30 25 giddings, j. (2013) promoting justice through clinical legal education melbourne: justice press, p. 64 26 ibid 27 schrag, p.g and meltsner, m. (1998) reflections on clinical legal education boston: northeastern university press, p.9 28 ibid 29 palermo, j. and evans, a. (2008), ‘almost there: empirical insights into clinical method and ethics courses in climbing the hill towards lawyers’ professionalism’, 17 griffith l. rev., pp.252-284, heinonline [online] available at http://heinonline.org (last accessed 18 january 2015) p.253 30 ibid. p272 http://heinonline.org/ there have also been a number of studies, conducted in the united states, regarding the impact of pro bono programmes at law schools. granfield states that: ‘while there has been anecdotal evidence supporting the value of law school pro bono, no institution has taken an empirical examination of the impact of pro bono participation on law school graduates. this seems to suggest that many proponents of law school pro bono view such policies as an unqualified public good that is consistent with the service ideals of the legal profession.’31 rhode undertook what may be considered the first empirical analysis of lawyers and their attitudes towards pro bono work.32 rhode reports that 59% of the lawyers surveyed cited a desire for a financially rewarding and secure career as the reason for choosing a legal career. the next most common motivations were finding intellectual challenges (52%) and keeping options open (41%). only 31% of the respondents indicated a desire to promote social justice whilst 29% stated that they wanted to prepare for public service.33 rhode goes on to state that fewer than a third of the respondents had changed their objective during law school. of the respondents who did 31 granfield, r. (2007). ‘institutionalizing public service in law school: results on impact of mandatory pro bono programs’ buff. l. rev. 54: 1355-1412 heinonline [online] available at: http://heinonline.org (last accessed: 18 january 2015), p.1372 32 rhode, d l. (2003) ‘pro bono in principle and in practice’. j. legal educ. 53:413-464 heinonline [online]. available at: http://heinonline.org (last accessed: 18 january 2015) 33 ibid p. 454 http://heinonline.org/ http://heinonline.org/ report a shift in attitude, a ‘significant number’ reported a change in attitude concerning pro bono and public interest work. a fifth (22%) of these respondents reported that a positive law school experience had encouraged involvement in pro bono activity, whilst about a fifth (19%) reported a negative law school experience had ‘dampened’ their desire to do pro bono work. other factors steering lawyers away from public interest work included student loans and differential salary levels.34 rhode states that her study fails to confirm the belief that a law school pro bono experience increases the likelihood of continued pro bono contributions. a positive experience with ‘public interest work’ can have a significant impact, but such an experience need not come from a ‘pro bono placement’ nor does a pro bono placement ensure a positive experience.35 granfield reports that 58% of respondents to his survey believed they had acquired valuable legal skills from their participation in pro bono activity at law school whilst 28% report that their pro bono experience helped them acquire their initial job after graduation.36 further, granfield also comments that, ‘contrary to anecdotal evidence, half the respondents did not believe 34 ibid p. 455 35 ibid p. 457 36 op.cit. note 29 p.1379 their law school pro bono experiences made them more committed to doing pro bono work as a practicing attorney.’37 both granfield38 and rhode39 cite commitment to public service and a sense of personal satisfaction as the principle motivations for conducting pro bono work whilst factors such as enhancement of legal skills were of secondary importance. the data from the studies carried out by both granfield and rhode produce very similar conclusions, both casting doubt on the notion that you can promote pro bono work in the legal profession by exposing law students to pro bono during law school. however, in granfield’s opinion it is ‘still too early to perform a post-mortem on the law school pro bono movement.’40 he goes on to state that ‘[m]any respondents… reported that their law school pro bono experiences were not well integrated into their overall education… for the law school pro bono movement to have an impact, the pro bono experiences of law students must be better integrated into the general law school curriculum.’ 41 whilst the studies of granfield and rhode provide substantial evidence for the proposition that law school pro bono programmes do not influence the 37 ibid 38 ibid p. 1399 39 op.cit. note 30 pp. 446-447 40 op.cit note 29 p. 1412 41 ibid attitudes of students in relation to their future career, it is noted that both studies consider data drawn from practising lawyers rather than current students. it is arguable that in both studies, respondents’ answers may have varied had they taken the survey whilst at law school or shortly after leaving law school. it is plausible to consider that their attitudes have been shaped by their experiences since leaving law school. additionally, as granfield recognises himself, the respondents’ attitudes could be shaped by their experience at law school.42 in particular, granfield refers to better integrating the pro bono experience into legal education.43 schmedemann has also considered whether a pro bono participation in law schools encourages future participation whilst in practice. this study, which considered a voluntary pro bono programme, found a significant correlation between participation in a law school pro bono programme and participation in practice. a further correlation was shown between attitudinal dispositions related to pro social values and pro bono involvement in practice.44 the research indicates that there is no definitive answer to which clinical and pro bono programmes enhance students. 42 ibid 43 ibid 44 schmedemann, d. (2009), ‘priming for pro bono: the impact of law school on pro bono participation in practice’ in granfield, r. and mather, l. (eds) private lawyers in the public interest, new york: oxford university press, pp.73-94, p.79 altruism and other professions it may also be useful to consider attitudes towards altruism in other professions as altruistic attitudes are often seen as ‘a defining characteristic of professionalism.’45 of note is a study by coulter et al that compared the altruistic attitudes of business, law and medical students.46 coulter et al report that 3% of business students and 17% of law students felt that working with the poor was important to their careers. however a significantly higher percentage (33% of business students and 40% of law students) ‘felt that doctors should be required to provide medical care to the poor.’47 cruess, states that altruism is thought to be a defining characteristic of professionalism and a key feature of medical practice.48 however, roche et al, drawing upon coulehan and williams, state that ‘in medical education, students go through a maturational process that some claim undermines any idealism they may have had upon entering.’49 they go on to state that ‘some 45 cruess and cruess, 1997 as cited in coulter, i. d. wilkes, m. der-martirosian, c. (2007). ‘altruism revisitied: a comparison of medical, law and business student’ altruistic attitudes’ medical education. 41: 341-345 [online] doi: 10.1111/j.1365-2929.2007.02716.x, (last accessed: 18 january 2015) p.342 46 coulter, i. d. wilkes, m. der-martirosian, c. (2007). ‘altruism revisitied: a comparison of medical, law and business student’ altruistic attitudes’ medical education. 41: 341-345 [online] doi: 10.1111/j.1365-2929.2007.02716.x (last accessed: 18 january 2015) 47 ibid p. 345 48 ibid p. 342 49 roche iii, w. p., scheetz, a. p., dane, f. c., parish, d. c. and o’shea, j. t. (2003). ‘medical students’ attitudes in a pbl curriculum: trust, altruism, and cynicism’ academic medicine 78(4):398-402. p. 398 educators note that some students who enter medical school with compassion and altruism become more cynical.’50 problem based learning and an early introduction to clinical medicine were considered two possible changes that could address the cynicism observed in medical students. 51 it is reported that the effect of problem-based learning curriculum has been seen to prevent a more cynical or less altruistic attitude from developing in medical students and has in fact had a positive effect on their attitudes towards altruism. 52 wear and zarconi highlight the effect of role modelling on the attitudes of students.53 they draw upon the work of coulehan that urges an environmental change via role modelling: ‘the first requirement for a sea change in professionalism is to increase dramatically the number of role model physicians at every stage of medical education. by role model physicians i mean full-time faculty members who exemplify personal virtue in their interactions with patients, staff and trainees; who have a broad, humanistic perspective; and who are devoted to teaching and willing to forego high income in order to teach….[sic] their presence would dilute and diminish the conflict between tacit and explicit values, especially in the hospital and the clinic. the teaching environment would contain fewer hidden 50 ibid 51 ibid p. 399 52 ibid p. 402 53 wear, d and zarconi, j. (2008) ‘can compassion be taught? let’s ask our students’ j gen intern med 23(7):948-953. [online] doi: 10.1007/s11606-007-0501-0 (last accessed: 21 august 2013) messages that say “detach” while at the same time overt messages are saying “engage.” what trainees need is time and humanism’54 this argument puts forward the idea that students can learn virtue through role modelling and therefore if they are taught by individuals who themselves exhibit virtues, and as such are positive role models, then this will in turn have a positive effect on the students. however, wear and zarconi also recognise that having ‘a few positive role models in a clinical setting will not do the trick.’55 pence states: ‘morality is not learned the way one learns to play a flute or to do a tracheotomy by observing a ‘master’ proficient in a certain craft or technique. compassion similarly is not learned from a master of compassion (or the chief role-model thereof). instead it is developed or not by the ‘shape’ of the medical environment in which students learn medicine. the overall medical context in which students thrive or stagnate is more important than the efforts (however noble) of any one individual.’56 the literature above suggests that one must look at the whole educational institution. whilst the empirical evidence to date suggests that pro bono and clinical legal education does not instil a sense of public service, or altruism 54 ibid 55 ibid 56 op.cit note 11 p. 190 within law students, there is explicit criticism of the programmes that students perceive as ‘not well integrated into their overall legal education.’57 it is clear from the literature that there is little empirical evidence regarding the participation in pro bono and clinical legal education programmes, or indeed other altruistic activities, and the influence this has on students’ altruistic attitudes and their participation in altruistic activity during their career. the literature in relation to legal education, particularly with reference to clinical legal education and pro bono, suggests that altruism is considered a key aim. however, the empirical research by rhode and granfield does not support this assertion. there have been small-scale studies within medicine suggesting that altruism can be instilled through role modelling and the environment in which students learn. the study carried out by roche et al concludes that students were not any less altruistic than their junior counterparts as a consequence of problem-based learning.58 this study relates to retaining altruistic attitudes rather than instilling them. this can therefore arguably be distinguished from the present study on the basis that it is about instilling altruism rather than retaining it. further, despite the conclusions, the authors could not establish whether the results were as a consequence of more women 57 op.cit note 29 p. 1412 58 op.cit note 47 p. 402 attending medical school rather than the introduction of problem-based learning into the curriculum. the study by wear and zarconi utilised a qualitative approach and as such it is difficult to generalise the findings. the authors identify a limitation in their own research that only 46% of potential respondents gave permission to participate in the study. again, this limits the generalisation of the results. methodology whilst the above-mentioned studies each have their limitations, the data drawn from each is useful in designing the research for this study. the model of legal education at northumbria university, and in particular the m law exempting degree is an integrated model with clinical legal education at its core. the programme is described as one where ‘[s]tudents are introduced to legal rules and concepts on both their theoretical and practical contexts from day one. they engage in clinical and experiential learning throughout the course culminating in full case work on behalf of real clients in the final year.’59 as such, it is arguable that the m law exempting degree is the integrated model described by granfield. 59 northumbria university. (2012) llb (hons)/m law exempting full-time. available at: http://www.northumbria.ac.uk/sd/academic/law/courses/ug/innovative/mlawexempting/ (last accessed: 18 january 2015) http://www.northumbria.ac.uk/sd/academic/law/courses/ug/innovative/mlawexempting/ in the fourth year of the programme, students participate in the student law office module. this is a credit-bearing module where student advise and represent real clients. students can also participate in extra curricula activities such as streetlaw throughout any year of the programme. the programme integrates problem-based learning and clinical elements in earlier years which, as identified above, have the potential to mean students are less cynical and have a positive effect on their altruistic attitudes. the model of legal education adopted by northumbria university also appears to align with the models discussed above in medical education. northumbria university has arguably created an environment where students are taught by lawyers, from who they can model themselves. it is therefore to be seen whether the northumbria university model, integrating legal education and pro bono work can instil a sense of altruism in students and encourage participation in future pro bono activity. this study received ethical approval from northumbria university. a questionnaire (see annex a) was sent electronically to all students studying on the m law exempting degree programme at northumbria university in the academic year 2012/13. respondents to the survey were anonymous. the survey was designed to elicit information regarding students attitudes to pro bono work at university, whether mandatory or voluntary. ‘pro bono’ was defined in the survey as ‘the provision of legal services without charge to the client’. this is a wide definition and encompasses the clinical legal education module carried out in the student law office as no charge is made to the client. however, students were also asked about their volunteering outside of university. ‘voluntary work’ was defined as ‘work without reward other than expenses’. voluntary work could be either legal or nonlegal. this study considers the altruistic ethos of the students and therefore, it does not matter whether this is manifested by legal or non-legal work. voluntary work is unlikely to fall within any definition of clinical legal education as it is not conducted through the university. however, it may fall within the definition of pro bono if the provision of legal service is not mandated. the survey utilised likert scales, rankings and free text boxes to elicit to attitudinal responses. the questionnaire was sent to a total of 1010 students. the breakdown of student numbers by year group: year 1 – 348 students year 2 – 288 students year 3 – 198 students year 4 – 176 students a descriptive statistical analysis was used to provide a profile of the respondents, outlining their experiences and their attitudes towards pro bono and voluntary work. a mann-whitney u-test60 was conducted to determine statistical significance of the relationship between students’ pro bono experience and their altruistic attitudes as well as their attitudes towards future participation in pro bono activity. the survey had a low response rate with a total of 44 questionnaires returned. 7 questionnaires were returned from each of the year 1, 2 and 3 groups whilst 23 questionnaires were returned from year 4. discussion data analysis suggests that the primary motivation behind both pro bono work and voluntary work is for personal benefit. respondents also valued the skills development and enhanced employment prospects rather than the altruistic benefits of carrying out such work. 60 there is debate as to whether parametric tests, such as t-tests, are appropriate for ordinal data. see jamieson, s. (2004) ‘likert scale: how to (ab)use them’ medical education. 38:1212-1218 [online] doi: 10.1111/j.1365-2929.2004.02012.x (last accessed: 18 january 2015) and norman, g. (2010) ‘likert scales, levels of measurement and the “laws” of statistics’ adv in health sci educ 15:625-632 [online] doi: 10.1007//s10459-010-9222-y (last accessed: 18 january 2015). as the data collected was ordinal, it was deemed a non-parametric test was deemed the appropriate statistical test for this study. generally, students in year 1 (n=6), year 2 (n=7) and year 3 (n=5) stated that they did not currently undertake any pro bono work as part of their programme of study. one year 1 (n=1) student stated that they did not know whether they undertook pro bono work as part of their programme of study whilst one year 3 (n=1) student stated they did not know and one year 3 (n=1) student stated they did undertake pro bono work as part of their programme of study. nineteen year 4 (n=19) students responded to the question, all of whom undertook pro bono work as part of their programme of study. four year 4 (n=4) students did not respond to this question. figure 1 below illustrates the perceptions of students who had undertaken pro bono work as part of their programme of study compared with those who had not. students were asked whether they agreed or not with the following statements in relation to pro bono work as part of their programme of study: • pro bono improves legal skills; • pro bono assists in obtaining employment; • pro bono work improves academic performance; • pro bono work increases awareness of social and economic issues; • pro bono work changes perception of social and economic issues; and • pro bono work increases likelihood of continuing pro bono work after graduation. figure 1 it can been seen that the respondents expected pro bono work to provide a personal benefit to them; such as improved legal skills and enhanced employability, and further, the respondents who have engaged in pro bono work perceive that they have been rewarded with these benefits. this perhaps supports the educational imperative of pro bono work as part of a programme of study but does not assist in determining whether students are instilled with a sense of altruism. figure 1 also suggests that there was marginally more appreciation of social and economic issues. it is plausible that this is due to the fact that students are faced with real legal issues and therefore have a greater appreciation of the problems society faces. however, further research of a qualitative nature would be required to investigate this. despite an apparent greater appreciation for social and economic issues, it is highlighted that respondents were neutral to the statement as to whether they would participate in future pro bono activity following graduation. this may indicate that participation in pro bono activity at law school may not encourage future participation in pro bono activity. further research is required to establish why respondents are of this view. 89% (n=34) of respondents reported that they undertook, or had undertaken, voluntary work. further, there appears to be no correlation between students participating in pro bono work at university and an undertaking of voluntary work outside their programme of study as 76% (n=16) of respondents from years 1, 2 and 3 stated they undertook, or had undertaken, voluntary work whilst 78% (n=18) of respondents from year 4 undertook voluntary work. this may suggest that the respondents had an altruistic ethos and supports the view that individuals with an interest in the subject matter of the survey are inclined to respond. this may highlight the problem of non-response bias, and in particular that because those responding are self-selecting, their views are unlikely to represent the views of the population as a whole. this is particularly so given the low response rate to the survey. as the independent variable in this study is whether or not students have participated in pro bono work at law school, it is irrelevant that the survey is unlikely to represent the views of the whole student cohort on the m law exempting degree. in any event, when the rationale behind the voluntary work is analysed, this suggests that respondents may not be so altruistic. only 26% (n=8) of the respondents who provided a reason for undertaking voluntary work reported a reason without personal benefit to themselves such as helping people or ‘giving something back’. whilst it is acknowledged that a higher percentage did provide some altruistic motive, many of these respondents also provided a reason encompassing some personal benefit such as enhanced employability. 36% (n=12) of respondents did not cite any altruistic motive for undertaking voluntary work. the reasons for engaging in both pro bono and voluntary work appear to show that respondents generally have a desire to attain some personal gain from their altruistic actions, and results are therefore consistent with the empathy-altruism hypothesis espoused by bateson and shaw, as cited in coulter et al.61 61 op.cit. note 44 this concept must therefore be borne in mind when considering whether conducting pro bono work at law school can instil an altruistic ethos in students. if we first consider the perceived benefits of undertaking pro bono by those students yet to undertake pro bono work against the those students who had undertaken pro bono work, it is apparent that the common expected benefit is some form of personal gain. this includes improved legal skills, enhanced employability and improved academic performance. the respondents were in general agreement that they do or will benefit from the pro bono experience. when considering the altruistic benefits, respondents who had not undertaken any pro bono work did not really consider these benefits to be an issue, providing neutral responses to the statements. however, respondents who had undertaken pro bono work at law school did report a change in attitude. they strongly agreed that pro bono work had increased their awareness of social and economic issues. they also agreed that pro bono work had changed their perception of social and economic issues. this is indicative that whilst students may not undertake pro bono work for altruistic reasons, the work they carry out can potentially influence their attitudes going forwards. whilst the primary motivation for engaging in pro bono activity is personal, it is plausible to conclude that students, through exposure to social issues, do gain a degree of altruistic appreciation. whilst many law schools engage primarily in clinical legal education and pro bono work due to the educational value, there are other benefits associated with the provision of pro bono work for society as a whole. the data suggests that it is the personal benefits of clinical legal education and pro bono work that students value more than any social benefit. when asked to rank statements, respondents ranked enhanced employment62 and enhanced legal skills63 as the most important reasons to undertake pro bono work at law school. statements reflecting altruistic motives, such as improving awareness of social issues64 and encourage future involvement in pro bono activity65 were ranked lower by both groups. whilst the work may increase a student’s social awareness, it may not influence their future behaviour. respondents, whether having carried out pro bono work or not at law school, were neutral when it came to the statement as to whether they would carry out pro bono work following graduation as shown in figure 1 above. as such, this suggests that the benefit to society as a whole may be of limited value. the provision of pro bono and clinical programmes at law school is unlikely to result in a generation of 62 both groups, years 1, 2 and 3 and year 4 students, gave a median rank of 2 63 years 1,2 and 3 gave a median rank of 2 whilst year 4 gave a median rank of 2.5 64 both groups gave a median rank of 4 65 both groups gave a media rank of 5 altruistic lawyers providing free legal advice in the future. however, by utilising the educational value of this activity, law schools can go some way towards meeting the needs of society themselves. in essence, if more law schools adopt a mandatory pro bono/clinical programme, this will create capacity for the public to obtain free legal advice from the law school itself and as such go some way towards filling the legal advice gap. however, attitudes did differ in relation to whether law schools should offer mandatory or voluntary pro bono opportunities. respondents who had not undertaken mandatory pro bono work as part of their programme were neutral as to whether law schools should offer mandatory pro bono programmes. respondents who had undertaken pro bono work expressed a stronger opinion that students should undertake pro bono work as a mandatory part of their programme of study; the difference between the two groups of respondents was statistically significant.66 whilst the median suggested both groups agreed that there should be voluntary pro bono opportunities at law school, those respondents who had not undertaken a mandatory programme held a stronger opinion. however, this difference was not statistically significant67. the data suggests that whilst students do value pro bono work within their programme of study. students who have not had the opportunity to undertake pro bono work want voluntary 66u=102.000, p=.022 67 u=158.500 p=.534 opportunities to do so, whilst students who have done pro bono work state that students should do so. it is likely that this is due to the personal benefits that the students gain as a consequence of pro bono work rather than the social benefit of such work. the data appears to be consistent with the earlier studies carried out by granfield and rhode. in particular, it is noted that the data suggests students are not more inclined to engage in future pro bono work if they have participated in pro bono activity whilst at law school. limitations the low response rate is a clear limitation in relation to this study. the principle issue relates to external validity of the results as clearly it is difficult to generalise to results across all students enrolled on the m law exempting degree. as norman points out, ‘[i]t is difficult to argue that 2 physicians or 3 nursing students are representative of anything…’68 however, this study does not purport to generalise the views of all students on the m law exempting degree. this study is principally concerned with establishing whether there is a link between pro bono engagement in law school and the likelihood of future pro bono activity. as this research has elicited a similar 68 norman, g. (2010) ‘likert scales, levels of measurement and the “laws” of statistics’ adv in health sci educ 15:625-632 [online] doi: 10.1007//s10459-010-9222-y (last accessed: 18 january 2015), p.628 number of responses from those students engaged in pro bono activity, and those students who are yet to engage in pro bono activity, a comparative descriptive analysis can still be made. moreover, whilst it has been suggested that the response rate was linked to the attitudes of the student towards pro bono there are a number of alternate and non-exclusive explanations. for example, the students may have had other commitments such as exams or coursework. alternatively there may have been survey fatigue as they are faced with numerous surveys at the end of the academic year. a further limitation of this study is that it relates to students studying on the m law exempting degree at northumbria university. the author makes no claims regarding the application of the data to other students or institutions and it is recognised that further research is required although the findings cannot be generalised. norman also highlights a further issue with small sample sizes, namely that there may be concern about normal distributions.69 by utilising the mannwhitney u-test, there were no presumptions that the data was normally distributed in the performance of the statistical analysis. likert scales often have skewed or polarised distribution70 and this was considered at the 69 ibid. 70 jamieson, s. (2004) ‘likert scale: how to (ab)use them’ medical education. 38:1212-1218 [online] doi: 10.1111/j.1365-2929.2004.02012.x (last accessed: 18 january 2015) p.1218 design stage as outlined above. however, by utilising the mann-whitney utest, it is acknowledged that it is not as sensitive to statistical significance and therefore it may be that the data has not been tested as robustly as it might otherwise have been. however, for the reasons outlined above, it was deemed inappropriate to use alternative tests such as the t-test. there is a further issue relating to the internal validity of the research. in so far as any causal relationship between the independent and dependent variables are suggested, it is noted that correlation does not necessarily mean causation. this study merely aims to establish a potential relationship between pro bono activity at law school and the likelihood of future pro bono activity. a further limitation of this study relates to the reliability of the data, and in particular, reference should be made to the stability. the author highlights above that identifies respondents answers can change over the course of time. this is seen as an inherent issue within social research concerning attitudes as individual attitudes can alter over the course of time. however, with this in mind, the data is consistent with the studies of granfield (2007) and rhode (2003) suggesting that it should be considered reliable. conclusion whilst acknowledging the limitations of this study and that there is scope for further research, it does suggest that participation in pro bono work whilst at northumbria university is not likely to increase the likelihood of future participation in pro bono activity following graduation. the study supports the limited literature currently available indicating that law school pro bono programmes do little, if anything, to instil a sense of altruism in law students. however, the data further suggests that students value pro bono programmes and it is perceived that they carry substantial personal benefits. in particular, students report improved legal skills and enhanced employability. it is suggested that for these reasons, pro bono programmes are worthwhile and it is plausible to conclude there is value to society in adopting such programmes through the provision of free legal advice. annex a ijcle vol 23 no 3 conference report the ed o’brien street law and legal literacy international best practices conference, durban, south africa , april 2016 rebecca grimes[footnoteref:1], [1: rebecca grimes is a solicitor tutor in the school of law at northumbria university.] northumbria university, uk background south africa has been the home of a vibrant public legal education (ple) programme for many years[footnoteref:2]. indeed its street law initiative has been described as one of the strategic responses to and a catalyst for change during the apartheid era[footnoteref:3]. the focus on democracy and human rights for all in the lead up to and following the 1994 election has aided the transition from the old regime to the new[footnoteref:4]. [2: the history of this and street law’s wider international presence is set out in r. grimes, e. o’brien, d. mcquoid-mason and j. zimmer, ‘street law and social justice education’, in the global clinical movement: educating lawyers for social justice, f. bloch (ed.), oup, 2010.] [3: see the preface to south africa street law: practical law for south africans, l. coetzee and d. mcquoid-mason (eds.), juta law 2004.] [4: at the beginning of 1994, street law south africa and street law, inc. published the democracy for all manuals for learners and educators in time for the run-up to south africa’s first democratic elections in april.] ignorance of the law and legal process is of course a problem in many developing and developed countries[footnoteref:5] and an international conference was therefore planned last year to bring the ever-expanding international legal literacy scene to durban in order to identify and share best practice an attempt to promote and support a better understanding of rights and responsibilities under the law. [5: see arthurs, sean, g., ‘street law: creating tomorrow’s citizens today’ (2015) lewis & clark law review vol 19:4 925-960 for a recent us perspective on civic knowledge among high school students.] the untimely death of the street law co-founder, ed o'brien[footnoteref:6], in july 2015 gave the event even greater poignancy. the conference was not only a global sharing of experience but also an important reminder of how this movement began and of ed's (and others') role in that process. [6: edward lee o’brien, 21 september 1945 – 2 july 2015. former (and emeritus) ceo of street law inc, washington dc, usa.] introduction the conference took place from 1 to 3 april 2016 hosted by the school of law university of kwazulu-natal (ukzn) and street law south africa in durban, south africa and was preceded by a three-day ed o’brien memorial safari (29-31 march) at the hluhluwe-imfolozi game reserve. those who attended will recall the tranquil surroundings, the many and varied game sightings (including the once near-extinct white rhinoceros) and, of course, the impromptu monkeys’ picnic! this was a conference to honour ed o’brien and celebrate the 30th anniversary of the first international street law programme established at the university of kwazulu-natal (formerly the university of natal), south africa. the conference intended to provide a platform for the sharing of best practices in public legal education through street law and other legal literacy and community outreach programmes and was attended by law teachers, law clinicians, law educators, law school staff and ngo co-ordinators and representatives. conference programme/theme the main theme of the conference was best practice lessons. the conference timetable was structured to incorporate a number of strands, based on this theme. they were: · street law curriculum development · building capacity for street law programmes · youth-based street law programmes · using street law as a pathway to law school · street law and democracy education · street law and human rights education · general human rights education · the protection of the rights of vulnerable groups · using street law to teach about commercial and labour law the conference consisted of a series of sessions/workshops in which best practice approaches addressing these themes were presented. delegates from over 25 countries were represented and interactive papers (many incorporating the interactive street law methodology[footnoteref:7]) were given looking at the design, delivery and evaluation of street law programmes worldwide. [7: street law originated at georgetown university, washington dc in 1972 where groups of law students went into local schools to teach pupils about basic rights and responsibilities. the idea was that both the pupils and the students would learn in the process. a structured methodology now exists that has been developed by street law inc. also of washington dc and the street law approach or adaptations of it is now being used in over 50 countries of the world to promote a better understanding of law, democracy and human rights.] day one the start of the conference set the scene for the origins of street law and ed o’brien’s unique contribution[footnoteref:8], the development and key contribution of street law in south africa and subsequently the range of street law programmes and ple initiatives world-wide. [8: ed’s widow, may gwynne o’brien; margaret fisher, seattle university school of law (usa); commissioner mahomed ameermia, south african human rights commission (south africa) and david mcquoid-mason were amongst those who provided addresses and tributes.] presentations under ‘curriculum development’ provided delegates with an insight into a number of innovative established and proposed ple initiatives spread across four continents. the first[footnoteref:9] introduced the juvenile justice programme in the usa which has expanded from 94 youth courts in 1994 to more than 16,000 by 2015. these are voluntary process courts which involve young people, working with adults, to sentence their peers for a range of youth misconduct or juvenile offences. sentences can include, inter alia, community service, jury duties in future youth courts and writing apologies to victims. the session highlighted how the widely accepted benefits of many street law programmes active learning experiences that allow young people to: explore rights and responsibilities under the law; appreciate the legal system; confront and resolve disputes, and discuss and analyse public issues are also acquired through youth court in a very real setting. [9: m. fisher, seattle university school of law, youth delivering justice through restorative justice peer courts, street law conference, durban 2016.] a vision for the middle east followed which, if realised, would be a progressive achievement. this was to develop a street law programme that might potentially harmonize rules of islamic law with human rights principles and tackle disputed or debated interpretation of the quranic verses that could precipitate exploitation of young and vulnerable people.[footnoteref:10] this contrasted with the presentation of an embedded street law programme in a compulsory legal practice module that addressed the challenge of supervisor-student ratio in a live-client clinic. the developed structure allows a relatively large number of students to experience community engagement and providing a legal knowledge service in different settings over 2 semesters.[footnoteref:11] the penultimate workshop in this strand demonstrated part of a lesson incorporating an investigative crime approach and using a real-life murder case to introduce students to the criminal justice system and enhance reasoning and critical thinking skills.[footnoteref:12] [10: mohamed y. mattar, qatar university college of law, utilizing the ‘street law’ mechanism in raising awareness about the true principles of islamic law, street law conference, durban 2016.] [11: m. welgemoed and d. david, nelson mandela metropolitan university, the incorporation of street law into the legal practice module at the nelson mandela metropolitan university, street law conference, durban 2016.] [12: j. lunney, the law society of ireland, dead bodies and live minds – the michael morton story: street law students as detectives, street law conference, durban 2016.] based on the premise that it is assumed that raising public awareness and understanding of the law and legal system should arm and empower people to tackle legal problems and contribute to addressing existing inequalities, this strand concluded with a call for empirical research to substantiate anecdotal evidence that improving levels of legal literacy could enhance access to justice more generally. the workshop highlighted the need for and challenges faced by this proposal as well as possible means of developing such an evidence base.[footnoteref:13] [13: r. grimes, university of york, developing and evidence base for measuring the outcomes of street law lessons, street law conference, durban 2016.] a lively participatory presentation launched the ‘building capacity’ theme. this featured a history of establishing community legal education (street law) programmes across the asia region utilising common interactive approaches[footnoteref:14]. a focus on methods and paths to monitoring and evaluating the programmes linked effectively to the previous session. [14: b. lasky and w. moorish, bridges across borders south east asia community legal education (babseacle), street law and interactive teaching methods – the south east asia model, street law conference, durban 2016.] the first day concluded with a workshop looking at the role street law can play in assisting those whose focus it is to provide services to others such as law centres, advice agencies and varied community-based organizations from a uk perspective. the group proposed possible solutions or strategies to the challenges inherent in delivering ple to professional audiences.[footnoteref:15] [15: r. grimes, university of northumbria, newcastle, training the trainers – a lesson for capacity building, street law conference, durban 2016.] day two again, four continents were represented on the second day. a local organization set off the youth-based street law programmes strand with a presentation focusing on an initiative that includes law students trained to facilitate lessons and other activities based on the south african constitution for schools and other community groups.[footnoteref:16] a main aim is to inspire and empower people to see and make use of the constitution and move towards making its promises more of a reality in society in general. [16: c. bruintjies, south african constitutional literacy and service initiative (clasi), using law students as ‘teaching fellows’ to promote the south african constitution, street law conference, durban 2016.] the second and final workshop in this strand described a pilot project in community colleges in california designed to create a pathway to six of the state’s most prestigious undergraduate institutions and their affiliated law schools intended particularly for groups traditionally under-represented in the legal profession. each college is required to provide a ‘street law-based’ course as part of the core curriculum and a ‘taster’ street law lesson used as part of the initiative was demonstated.[footnoteref:17] [17: e. s. quinlan, saddleback college, california, using street law to create pathways to law school from community colleges, street law conference, durban 2016.] the first ‘democracy education’ workshop gave an insight into the key role of street law in preparing south african citizens to vote in the country’s first democratic elections in 1994.[footnoteref:18] delegates participated in one of the ‘road to democracy’ exercises from the democracy for all manual.[footnoteref:19] this contrasted with an interactive session highlighting the compulsory voting system in australia and a lesson on democratic participation and the importance of voting delivered by students to schools and community groups.[footnoteref:20] the final interactive session in this stream focused on developing students’ understanding of key democratic principles[footnoteref:21] once again demonstrating the value of street law in raising citizens’ awareness of and promoting active participation in democratic institutions. [18: d. mcquoid-mason, university of kwazulu-natal, the genesis of the democracy for all street law programme, street law conference, durban 2016.] [19: see note 4.] [20: j. giddings, griffith university, democratic participation and making your vote count, street law conference, durban 2016.] [21: l. madlenakova, palacky university, democratic banana republic, street law conference, durban 2016.] a number of varied and vibrant presentations reiterated and confirmed the vital part ple and street law plays in promoting and developing human rights awareness and education world-wide often through law school engagement and particularly working with other organizations. some highlighted inherent challeges to student and lawyer participation in ple programmes[footnoteref:22] and others the benefits students themselves derive from their own developed understanding of human rights in practice through working with sufferers of human rights violations.[footnoteref:23] delegates were also introduced to street law programmes targeting specific marginalized and vulnerable groups and communities which provide both students and participants with understanding and empowerment. these included work with a range of people and human rights issues: disability groups;[footnoteref:24] gender-based violence[footnoteref:25] and violence against women and children.[footnoteref:26] resources have also been developed to support the multi-disciplinary street law training programme (in south africa) focused on effective evidence collecting in domestic violence cases.[footnoteref:27] [22: a. s. mizan, north south university, challenges of street law in developing countries: lessons from bangladesh on promoting human rights and legal literacy amongst common citizens, street law conference, durban 2016.] [23: u. aydin, k. turani and e. b. demirayak, anadolu university, how to start the first ever law clinic promoting human rights in a state university: lessons from turkey, street law conference, durban 2016.] [24: l. ernst, university of hong kong, engaging persons with intellectual disabilities: transforming communities through street law, street law conference, durban 2016.] [25: c. ojiaka, imo state university, gender-based violence outreach programme: best practices, street law conference, durban 2016.] [26: l. coetzee, nelson mandela metropolitan university, the ‘crimes against women and children’ street law programme, street law conference 2016.] [27: the training manuals are: crimes against women and children: a medico-legal guide and forensic medicine and medical law.] day three following the conclusion of the human rights sessions, the final stream focused on how street law can be used in teaching about commercial and employment law through novel and exciting initiatives. delegates were introduced to one such programme in the uk that involves postgraduate law students providing classes to school pupils on law and entrepreneurship and associated legal issues with the opportunity to pitch their own technology or enterprise business ideas to a large technology law firm.[footnoteref:28] another is aimed at supporting self-represented parties at employment tribunals by providing guidance on tribunal procedure. the programme also allows students to work with the tribunal service to try and address some of the effects on the justice system of cuts to public funding.[footnoteref:29] in the carribean, the focus is on the development of a community project to inform ordinary citizens about basics of contract and commercial law that affect daily personal and business transactions and how this impacts on sustainable economic development.[footnoteref:30] [28: p. cahill, queen mary college, university of london, teach tech law: an entrepreneurship street law programme in east london, uk, street law conference, durban 2016.] [29: l. thomas, university of birmingham, the employment tribunal procedure in england and wales: developing a street law programme to assist litigants in person in the wake of cuts to legal aid, street law conference 2016.] [30: c. malcolm, mona law institutes, university of the west indies, taking law to the streets: fostering a new form of engagement in support of economic development through community-centred legal education, street law conference, durban 2016.] overall, the sessions/workshops highlighted the range of ever-expanding[footnoteref:31] programmes and approaches and the power of public legal education in general and street law in particular in reaching many communities and groups in developing and developed countries who are unaware of their legal rights and responsibilities. [31: for example, the jamaican street law initiative is due to be launched by the mona law institute in early june 2016.] as well as the public benefit, it was also clearly shown that law students can be closely involved in preparing and delivering presentations/workshops and in doing so can gain considerably in terms of their own education, appreciating both substance and context. knowledge, skills and wider ethical considerations can all be effectively studied through involvement in ple in general and street law in particular. for all (the law student and the wider public) to realise that law involves not just individual rights and responsibilities but choices and values is, it is suggested, an important lesson. ple can, as demonstrated in south africa, also see greater community involvement and empowerment in daily life, in the democratic process and in the shaping of law and policy. conclusion & outcomes apart from the informative value of the 3-day conference it is anticipated that the event is likely to have longer term impact. a book is to be published setting out models for public legal education and practical guidance on the development of street law and other legal literacy programmes including best practice lessons[footnoteref:32]. a street law global network group has been set up for individuals involved in supporting street law or public/community legal education programmes across the globe to link up.[footnoteref:33] it is also planned that an international journal will also now follow to enable the sharing of ideas to continue into the future and to provide a conduit for serious discussion on the nature, role and impact of public legal education. [32: d. mcquoid-mason (ed.), street law: best practice from around the world, juta law, forthcoming, 2017.] [33: for further information or to join the network please contact: streetlawglobal@googlegroups.com ] the legacy left by ed o'brien is profound and likely to have a lasting and positive effect. thanks are due to david mcquoid-mason and his team at the university of kwazulu-natal and street law south africa[footnoteref:34] for organising such an important event. [34: in particular to melanie reddy, melissa murray, eban van der merwe & lloyd lotz.] 147 ‘pigs are not fattened by being weighed’ – so why assess clinicand can we defend our methods? carol boothby1 northumbria university, uk for those clinics that assess their students, there can be a panoply of issues to consider. the nature of clinic means that the experience of students is nonstandardised, not least in terms of workload. is it appropriate to assess such an experience? how can clinical teachers be sure that their assessment methods are valid and reliable? why assess in clinic? perhaps because teaching and participating in a clinical experience can take such a wide variety of forms, the approaches to assessment have been similarly diverse. many law schools have students involved in a range of pro bono activities, the majority of which will not be assessed. according to the lawworks law school pro bono and clinic report 2014,2 of those law schools that responded to the survey, 96% do pro bono work. this report suggests that (in the uk at least) clinics are increasingly becoming assessed as a credit bearing part of the curriculum and whereas previously only 10% of law schools in 2010 assessed student performance, 1 carol boothby is director of the student law office at northumbria university 2 carney, f. dignan, r. grimes, g. kelly, g and r. parker, “the lawworks law school pro bono and clinic report 2014”, lexisnexis. ( special issue problematising assessment in clinical legal education ) ( 137 ) today this total is around 25% relatively low, but apparently increasing, perhaps as clinics move from extra to intra curricular.3 views diverge on the value of assessing clinic, as well as how to do so. in terms of the views of students, recent work by combe indicates a minority (40%) responded negatively to the question “would you feel comfortable being assessed on law clinic work?”, suggesting that the majority were ‘either perfectly happy or indifferent to the prospect of assessment’.4 brustin and chavkin also found that the “overwhelming majority of the students believed that clinical courses should be available on a graded basis”, one student commenting that ‘grading permits rewarding those who make greater effort and excel…’.5 other writers do not challenge assessment per se, but challenge the idea of grading. rice argues that; ‘grading undermines the collaborative role of the clinical teacher. this is not a journey where we arm students with a map and compass drop them in the wilderness, and give a prize to the first one home. this is a journey we travel with them, clearing the path ahead, holding back to 3 see d. nicolson, “legal education or community service? the extra-curricular student law clinic” [2006] 3 web journal of current legal issues at http://www.bailii.org/uk/other/journals/webjcli/2006/issue3/nicolson3.html and subsequent exploration of the challenge of bringing clinic within the curriculum; d. nicolson, “calling, character and clinical legal education: inculcating a love for justice from cradle to grave” (2013) 16(1) legal ethics 36. also m. m. combe (2014) “selling intra-curricular clinical legal education” , the law teacher, 48:3, 281-295. 4 combe, supra n. 2, at p. 292 5 stacy l. brustin and david f. chavkin, “testing the grades: evaluating grading models in clinical legal education” (1997) 3 clinical law review 299, p. 316. let them go ahead, offering them a steadying hand, coaxing them on narrow bridges over deep ravines, exhorting them to climb steep hillsides… grading distracts us from our teaching’.6 hyams disagrees, seeing the reluctance to grade as ‘an evasion of our duty to our students’7and levine sees pass /fail as not providing enough feedback to enable improvement.8 nelson and murray, reviewing the move to the use of grade descriptors at the clinic here at northumbria student law office , also challenge the case for pass/fail in clinic, arguing that grading recognises the efforts displayed by students and it motivates them to achieve. 9 perhaps the idea that grading distracts from teaching is more likely where the assessment is summative in nature. where supervisors are providing ongoing formative feedback, and where the method of assessment is fully aligned with the clinical work, assessment can drive learning. from the clinical supervisor’s point of view, one reason for assessing and grading could be that it isn’t enough to simply get students to a ‘pass ‘ level we are wanting to help students to move along a continuum towards being ‘ practice ready ’and perhaps for them also to have some awareness of how near or far they are from that. stuckey’s definitive work, the best 6 s. rice, “assessing but not grading clinical legal education”, macquarie law working paper no. 2007 – 16 available to download at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1061622 (last accessed 29 october 2015) 7 r. hyams, “ assessing insight: grading reflective journals in clinical legal education” (2010) 17 james cook u. l. rev. 25 p. 34. 8 m. levine, “toward descriptive grading” (1970-71) 44 california law review 696. 9 v. murray and t. nelson, “assessment – are grade descriptors the way forward? “ (2009) 14 international journal of clinical legal education 48, p. 57. practices report, suggests that assessment methods may have more influence on how and what students learn than any other factor.10 the benefit of assessment in providing information to students is touched on by foxhoven; ‘assessment is a powerful tool because law students uniformly desire to be prepared to become competent lawyers, but, being novices in the legal profession, they are unable to identify core competencies themselves.’11 like a runner who checks their times and receives advice from their coach in order to improve their performance, students in clinic can (depending on the nature of the clinical experience) use formative assessment feedback to improve their performance. as brown and knight argue, ‘far from it being the case that you’ll not fatten a pig by weighing it… the science of weighing is necessary for the art of development’. 12 assessment provides information about student learning – but a stronger claim (according to brown and knight) is that assessment shapes the curriculum; ‘assessment defines what students regard as important ’.13 coffield et al, in a comprehensive and critical examination of learning styles, refer to the work of desmedt in finding that, ‘because of the curriculum, students are not 10 r. stuckey et al. , “best practices for legal education: a vision and a roadmap “ (usa, clinical legal education association, 2007) p.266. 11 j. r. foxhoven, “ beyond grading: assessing student readiness to practice law” (2009) 16 clinical law review 335, p. 344 12 s. brown and p. knight, “ assessing learners in higher education” (london, kogan page, 1994 ) p. 46 13 ibid., at p. 12. interested in learning, but in assessment.’ 14 this may seem a depressing indictment of students, but surely it is not specific to students, but simply of human nature; if the way in which a race is run is judged on time, then no matter how much we may exhort a particular running style, unless this actually contributes to the goal of ‘best time’, it is likely to be discarded or ignored. for many clinicians in law clinics, particularly those driven by a social justice motive, (as rice is) there is a risk that, unless the assessment and any grading leads to and measures progress in social justice terms, these aspects are merely a distraction. so what is ‘good’ assessment? arguably, a crucial factor underpinning all the support for assessing is how useful the assessment actually is in driving learning. what do we mean by ‘useful’? taking forward the point about concerns over validity of assessment, this can be a perplexing area. one field that legal clinicians can (and have) drawn from is the medical profession. the use of problem based learning in the teaching of law has been derived in this way, as was the use of standardised clients and the training used in medicine continues to provide a rich seam of expertise. those assessing medical students have puzzled over many of the same issues as legal clinicians. in particular, the work of van der vleuten, an academic in the field 14 f. coffield et al. “learning styles and pedagogy in post 16 learning: a systematic and critical review”. the learning and skills research centre, 2004. http://hdl.handle.net/1/273 (accessed 29th october 2015) not of medicine, but of education, led to him becoming the “accidental hero” 15 of medical education, who wanted to discover “promising ways to advance and to prevent repetition of the mistakes of the past in the future”, 16 moving away from high stakes assessment. in summary, van der vleuten uses a conceptual model for confirming the ‘utility’ 17simply put, the ‘usefulness’ of an assessment method by using a mathematical model incorporating key aspects such as validity, educational impact, and acceptability. this model can help us to examine what good assessment in clinic might look like, and this is a process which has been started at northumbria university’s inhouse law clinic, the student law office. assessment at northumbria student law office can the reflective and experiential elements of cle be codified into assessment rubrics that provide guidance to students (and staff) without reducing their depth and complexity? at northumbria, the law clinic moved in 2007-8 from criterionreferenced, outcomefocussed assessment to the use of 10 grade descriptors, including a range of skills and attributes from oral communication, written communication, to key skills such as a student’s ability to demonstrate autonomous 15 l. pritchard “cees van der vleuten accidental hero” (2005) medical education vol.39, issue 8 p. 761. 16 l. w.t schuwirth and c. van der vleuten, “changing education, changing assessment, changing research?” (2004) medical education vol 38: p. 805. 17 c. p m van der vleuten and l w t schuwirth, “assessing professional competence: from methods to programmes” (2004) medical education vol.39, issue 3, p.309 learning. 18 there is no explicit ‘justice’ agenda within the clinic curriculum, although it is implicit in many of the activities and experiences. so how is the clinical training and assessment of students linked to the wider discourse of what a lawyer is, and can be? through the development of reflection and reflective / reflexive practices, students have the opportunity to consider their own development, (see appendix a for assessment matrix). in addition to carrying out casework under supervision, and being assessed on these through the grade descriptors, students are currently required to produce two reflective pieces, 2000 words each, one on the development of their skills, and a second drawn from a list of topics such as ‘law in action’, ‘clinic and my career’, ‘justice and ethics’ and ‘clinic and legal education’. these reflections are submitted with the portfolio evidencing their casework, at the end of the module. if challenged, how could we defend our use of our current form of assessment? attacks can come from either end of the spectrumthose who see the social justice mission as too important for things like assessment 19 and grading 20 to get in the way, and others who worry that the experience of clinic is too non-standard and that this variety of experience needs to be narrowed into a check list of activities. the writer experienced such a challenge from an external examiner, who questioned the variability of the clinic experience, and the lack of control staff or students have over 18 murray, supra n.7, pp. 48-60. 19 nicolson, supra n.2. 20 rice, supra, n.5. this, which provided much food for thought, reflection, and a useful opportunity to critique and justify our existing methods. it brought a realisation that it may not be enough to rely on the mantra of clinic being so good that challenging assessment validity is a heresy. on the other hand, it cannot be that simply because clinic is a non-standard experience, (arguably one of the reasons students engage with it) and because this makes assessment difficult, that we give up either on clinic within the curriculum or assessment of it. being able to deconstruct and critique clinical methods, including assessment tools, should help to understand our clinical teaching more deeplyand perhaps also to see it from the students’ point of view, in terms of alignment and authenticity. so if non standardisation is one purported challenge to the validity of assessment in clinic, what are the other potential components of validity? van der vleuten’s work based on the ‘utility model’ gives a framework within which to carry out a methodical examination of our use of assessment. the utility model van der vleuten uses the idea of ‘utility’ as a conceptual model, whereby criteria are multiplied together to produce a utility index. those criteria can include; 1. validity (does an assessment instrument measure what it purports to?) 2. reliability (can scores for an assessment be reproduced ) 3. educational impact – the impact of assessment on learning 4. acceptability to stakeholders/cost – in terms of resources he makes 2 further points; that · selecting assessment methods involves context-dependent compromises · assessment is not a measurement problem but an integrated design problem21, made up of educational, implementation and resource aspects. what was already known was that the usefulness of assessment depends on compromise between various quality parameters, but what van der vleuten highlights in his later work is that ; 1. any method of assessment may have ‘utility’, depending on use 2. we need more methods using qualitative information relying on professional judgement, the latter being highly valuable. 3. assessment is an ‘educational design problem’22 that needs a holistic approach. in terms of reliability, here lies the importance of sampling, by which van der vleuten appears to mean that because competence is highly dependent on context or content, we need to use a large sample across the content of the subject to be tested, particularly if there are other potential effects on reliability, such as, in the case of clinic, clients, and single supervisor. this has relevance for assessment at northumbria slo, where it could be argued that, through the use of a wide range of grade descriptors, and ongoing assessment, we compensate to some extent for the ‘single supervisor ‘ aspectbut is that enough? the northumbria slo clinic assessment includes a thorough moderation process, where a sample of each supervisor’s marking is examined by a different supervisor. but we do not directly 21 van der vleuten, supra n.17, p.310. 22 van der vleuten, supra n.18, at p.314. involve more than one supervisor in the clinic assessment. further, there is no real link between the practical work, the grade descriptors and the 2 reflective pieces, save that these pieces purport to be a reflection on the clinical experience. in reality, students treat these as an end point assessment, and for many it seems to take until the end of the clinic module for them to grasp what is required. therefore the use of reflections as part of the clinical assessment is currently being re-examined, and van der vleuten’s framework has provided a useful structure. assessing reflective practice there is widespread use of reflections as a key part of clinic assessment; some clinics incorporate a presentation as well as written work, but no assessment of casework carried out by students.23 others are all written but include formative pieces such as a ‘critical incident’ report.24 all appear to embrace the concept of reflection with gusto, although there have been critiques of the use of reflections.25 in looking to apply van der vleuten’s work on assessing competence, the area of student reflection is one which has been of concern to clinic staff. in 2013, the writer introduced the reflections matrix (appendix b) to northumbria slo assessment, 23 j. mcnamara, “validity, reliability and educational impact of reflective assessment in clinical legal education”, presented at alt seminar, 4 june 2015, https://www.northumbria.ac.uk/aboutus/academic-departments/northumbria-law-school/law-research/legal-education-and-professionalskills/problematising-assessment-in-clinical-legal-education/ (last accessed 29th october 2015) 24 r. spencer, “holding up the mirror: a theoretical and practical analysis of the role of reflection in clinical legal education” (2012) international journal of clinical legal education, no. 18, pp. 181-216, available at ssrn: http://ssrn.com/abstract=2482873 (last accessed 29th october 2015) 25 j. tummons, “‘it sort of feels uncomfortable’: problematising the assessment of reflective practice”, (2011) 36:4 studies in higher education , pp. 471-483. providing rubrics to help clinic supervisors in assessing, and feedback from these assessors was generally positive, but other aspects of the way in which reflection was assessed remain the subject of concern, for example, the structure of the reflections as being essay-style pieces, submitted at the end of the module. testing our assessment in clinic against the utility model using grid structured questions provides a structure for discussion. as an overview, the grid below can help to summarise van der vleuten’s approach, and enable a critique of current or proposed assessment practice. utility model applied to slo practical work using grade descriptors element of trustworthiness criteria to what extent is this achieved through current assessment strategy in the northumbria clinic? high low credibility (internal validity) aligned with stage of competency (miller’s triangle) complex tasks/requiring mastery of skills, similar to legal practice authentic integration of competencies at each stage good integration of legal skills lack of real integration of reflective practice structural coherence within the programme grade descriptors align to the skills required for clinical casework some coherence and alignment of reflective work, but could be improved prolonged engagement, triangulation and member checking good training of assessors (clinic supervisors) limited involvement of more than one supervisor(only at moderation) transferability (generalizability) time sampling judgement based on broad sample of data points , repetition of tasks thick description assessors justify decisions in detail dependability (reliability) domain or content specificity test across content and contexts, over time awareness of complicating conditions awareness of impact of different clients/case complexity actual impact of different clients/case complexity stepwise replication through sampling uses assessors who have credibility only one assessor used per students confirmability (objectivity) review and audit detailed moderation process, with marks being sampled – peer review no real possibility for students to appeal or challenge the assessment decision for supervisors less familiar with the terminology used by van der vleuten, a more user friendly approach asks the question; ‘what would failure to meet/ meeting/ exemplary practice in relation to this criterion look like?’. a pilot group using this table plus a brief explanation of van der vleuten’s work were able to engage with a valuable critique of our current assessment of reflections. points raised in relation to the current clinic assessment at the student law office were: competencywe would expect students to be able to reflect at a reasonably sophisticated level – but have we provided sufficient previous experience and support to raise their reflective skills to the level of study they were at, which is masters level (level 7)? integration of competencies the use of end-point essay-style pieces for assessment of reflection separates reflective practice from the ongoing development and mastery of complex legal skills, so that learning and development of competency in reflection is not perceived by students in the same way as their development of those legal skills. this is reinforced by the contrast between the high level of formative feedback provided for practical casework, and the limited opportunities built in to the assessment for the purposes of reflection. structural coherence within the programmethe reflections matrix sets out the way in which the written piece will be marked, but this does not link to or facilitate an ongoing reflective processand perhaps fails to assess authentic growth in reflective skills. at a programme level, it could be argued that there is little prior preparation for the development of reflective skills. prolonged engagement, triangulation and member checking – the current perception of the reflective pieces as ‘end point’ led them to be summative in nature. in reality, students can prepare them during the year, but the only point at which they have the opportunity to gain supervisor feedback is at the mid year appraisal, when students submit a one-page draft. there is little triangulation, in the sense that the reflections are freestanding pieces of writing. the use of a different format such as presentations might provide an opportunity to engage with students directly and assess the level of true understanding and genuine reflection. conclusions the good news for clinicians is that, as van der vleuten says, there is ‘no need to banish from our toolbox assessment instruments that are rather more subjective and not perfectly standardised, on condition that we use them sensibly and expertly. we can move assessment back to the real world of the workplace as a result of the development of the less standardised but nevertheless reliable methods of practice based assessment’.26 authenticity is valued, as is the role of professional judgment by those assessing. tasks should be treated in a holistic rather than reductionist way. we need to ‘construct an overall judgment by triangulating information across these sources’ 27– perhaps something analogous to the way in which judicial judgements are reached. a thoughtful and informed approach to assessment in authentic learning environments such as law clinics should enable this assessment process to be both informative in terms of student development and reliable as a measure of achievement. 26 van der vleuten, supra n. 18, p. 312. 27 van der vleuten, supra n. 18, p.313. appendix a: grade descriptor for student law office (the assessment criteria are equally weighted.) ( special issue problematising assessment in clinical legal education ) ( 151 ) assessment criteria grade descriptor f(below 50) 2:2 (50-59) 2:1(60-69) 1st (70-79) +1st (80+) autonomy and efficiency knowledge and understanding of the law / legal practice strength of oral communication skills poor initiative shown; routinely relies on supervisor / routinely requires instruction / routinely requires prompting / requires prompting significant correction of work poor knowledge and understanding of law / legal practice issues; rarely draws on appropriate prior knowledge or legal principles poor oral communication skills indicating enduring difficulties in articulating legal and factual material; regularly fails to plan, listen or adapt to the needs of the audience fair/reasonable initiative shown, and often relies on supervisor / often requires instruction / often requires prompting / often needs significant correction of work fair/reasonable knowledge and understanding of law / legal practice issues but little thinking across subject disciplines; sometimes draws on appropriate prior knowledge or legal principles fair/reasonable oral communication skills; sometimes shows strong ability to articulate legal and factual material, plans, listens and adapts to the needs of the audience good initiative shown but there is some evidence of the following; reliance on supervisor / requirement for instruction / prompting / significant correction of work good knowledge and understanding of law / legal practice issues including thinking across subject disciplines; regularly draws on appropriate prior knowledge or legal principles good oral communication skills; regularly shows strong ability to articulate legal and factual material, plans, listens and adapts to the needs of the audience very good initiative shown and there is little evidence of the following; reliance on supervisor / requirement for instruction / prompting / significant correction of work very good knowledge and understanding of law / legal practice issues including thinking across subject disciplines; routinely draws on appropriate prior knowledge or legal principles very good oral communication skills; routinely shows strong ability to articulate legal and factual material, plans, listens and adapts to the needs of the audience excellent/outstanding initiative shown, and the following are extremely rare; reliance on supervisor / requirement for instruction / prompting / significant correction of work; a very high level of trust and responsibility can be given excellent/outstanding knowledge and understanding of law / legal practice issues including thinking across subject disciplines; almost always draws on appropriate prior knowledge or legal principles; stretches supervisor’s own understanding excellent/outstanding oral communication skills; almost always shows strong ability to articulate legal and factual material, plans, listens and adapts to the needs of the audience; instils confidence in clients strength of written communication skills poor written communication skills; rarely shows clarity, precision and accessibility; drafts routinely require significant amendment fair/reasonable written communication skills; sometimes shows clarity, precision and accessibility; drafts often require significant amendment good written communication skills; regularly shows clarity, precision and accessibility; drafts sometimes require significant amendment very good written communication skills; routinely shows clarity, precision and accessibility; drafts rarely require significant amendment excellent/outstanding written communication skills; almost always shows clarity, precision and accessibility; drafts very rarely require significant amendment; excellent sentence and paragraph structure displays eloquence strength of research skills commitment to clients and the student law office poor research skills; rarely shows appropriate depth, detail and comprehensiveness; reports rarely display effective practical awareness and application demonstrates little commitment or enthusiasm for achieving the best solution for clients; rarely puts more than the minimum required to perform tasks; completes insufficient work fair/reasonable research skills; sometimes shows appropriate depth, detail and comprehensiveness; report sometimes display effective practical awareness and application demonstrates some commitment or enthusiasm for achieving the best solution for clients; performs tasks with fair/reasonable diligence; completes sufficient work good research skills; regularly shows appropriate depth, detail and comprehensiveness; reports regularly display effective practical awareness and application demonstrates a good level of commitment or enthusiasm for achieving the best solution for clients; performs tasks with a high degree of diligence and shows pride in the work; completes sufficient work and shows willingness to help further very good research skills; routinely shows appropriate depth, detail and comprehensiveness; reports routinely display effective practical awareness and application demonstrates a very good level of commitment or enthusiasm for achieving the best solution for clients; performs tasks with a very high degree of diligence and shows pride and zeal for the work; completes sufficient work and actively seeks to help further excellent/outstanding research skills; routinely shows appropriate depth, detail and comprehensiveness; reports almost always display effective practical awareness and application; research addresses problems holistically demonstrates an excellent/outstanding level of commitment or enthusiasm for achieving the best solution for clients; performs tasks with an excellent degree of diligence and shows pride and zeal for the work; completes sufficient work and goes the extra mile for clients and the student law office; supervisor has to work hard to keep up case management and strategizing organisation: time and file management cases are progressed poorly; very few ideas about cases are offered or are poorly formed and not thought through; there is little or no evidence of proactivity or thinking about the overall strategic direction of clients’ cases displays poor organisational skills; makes little effective attempt to manage time; regularly fails to anticipate how long tasks will take or to plan use of time effectively; late on more than three occasions; files are often disorganised and not up to date; copes poorly under pressure and fails to achieve results when time is of the essence cases are progressed reasonably; some ideas about cases are offered – these are sometimes poorly formed or not thought through; there is some evidence of proactivity or thinking about the overall strategic direction of clients’ cases but this tends to be limited and lacking imagination / insight displays fair/reasonable organisational skills; makes a real attempt to manage time; sometimes fails to anticipate how long tasks will take or to plan use of time effectively; late up to three occasions; files are reasonably well organised but inconsistent and are sometimes not up to date; struggles under pressure but manages this cases are progressed effectively; quite a few ideas about cases are offered – these are often well formed and thought through but with inconsistency; there is good evidence of proactivity or thinking about the overall strategic direction of clients’ cases with some imagination / insight displays good organisational skills; makes a good attempt to manage time; generally anticipates how long tasks will take and plans use of time effectively but with some defects; late up to two occasions; files are well organised and up to date with few significant defects; copes well under pressure cases are progressed highly effectively; lots of ideas about cases are offered – these are regularly well formed and thought through; there is very good evidence of proactivity and clear thinking about the overall strategic direction of clients’ cases with imagination / insight displays very good organisational skills; makes a very good and sustained attempt to manage time; routinely anticipates how long tasks will take and plans use of time effectively with few defects; late up to one occasion; files are very well organised and up to date with very few significant defects; copes very well under pressure cases are progressed excellently; lots of ideas about cases are offered – these are routinely well formed and thought through; there is excellent/outstanding evidence of proactivity or thinking about the overall strategic direction of clients’ cases with imagination / insight; routinely thinks “outside the box” which generates creative potential solutions to problems displays excellent/outstanding organisational skills; almost always displays excellent time management; almost always anticipates how long tasks will take and plans use of time effectively with no significant defects; never late; files are excellently organised and up to date with no significant defects; organisational skills reveal a calm, unhurried attitude that can easily cope with significant pressure teamwork skills and contribution to firm meetings understanding of client care and professional conduct poor working relationship with supervisor / partner / peers; ineffective or negligible or disruptive contribution to firm meetings; may sometimes fail to attend firm or other meetings; relies heavily on other people to achieve client goals displays a poor understanding of professional obligations; fails to take client care procedures seriously or fails to ascertain the appropriate office procedure; commits a significant breach of the code of conduct or error of professional judgment fair/reasonable working relationship with supervisor / partner / peers; some effort to contribute to firm meetings but mainly reactive / focused on own cases; contributes to achievement of client goals but provides limited support to others and little leadership displays a fair/reasonable understanding of professional obligations; tries to comply with client care procedures but requires significant guidance; follows basic office procedure but is not always fully aware of the significance of this; struggles to articulate the rationale for ethical rules; treats clients well good working relationship with supervisor / partner / peers; good effort to contribute to firm meetings including discussions of other people’s cases and general discussions; contributes to achievement of client goals; provides ideas and support to others and some leadership displays a good understanding of professional obligations; complies with client care procedures with limited guidance; follows office procedure and is aware of the significance of this; is capable of articulating the rationale for ethical rules; treats clients with care and respect very good working relationship with supervisor / partner / peers; very good, creative contribution to firm meetings including discussions of other people’s cases and general discussions; contributes fully to achievement of client goals; provides ideas and support to others and effective leadership but does not dominate others displays a very good understanding of professional obligations; complies precisely with client care procedures with very little guidance; follows office procedure and is fully aware of the significance of this; clearly articulates the rationale for ethical rules and appreciates the context of slo service; treats clients with a high degree of care and respect excellent/outstanding working relationship with supervisor / partner / peers; excellent, creative contribution to firm meetings including discussions of other people’s cases and general discussions; contributes fully to achievement of client goals; provides ideas and support to others and strong leadership but does not dominate others; embraces the notion of mutual assistance in clients’ best interests displays an excellent/ outstanding understanding of professional obligations; complies precisely with client care procedures with no significant guidance; follows office procedure and is fully aware of the significance of this; clearly articulates the rationale for ethical rules and appreciates the context of slo service; treats clients with a high degree of care and respect; makes clients feel the utmost confidence that their best interests are being served appendix b reflections matrix student law office third/fail (below 50) lower second (50-59) upper second(60-69) first/strong first (70+) reflective no significant analysis or reflection on the fair analysis and reflection on the good analysis and reflection on the excellent relevant in depth analysis topic topic. using some detailed topic. specific and personal, using analysis and reflection on the examples but primarily descriptive some detailed examples, showing topic. specific and (where with a lack of development or good ability to synthesise and appropriate ) personal, using analysis. evaluate information and ideas detailed examples showing excellent ability to synthesise and evaluate information and ideas (self) exhibits little or no self-awareness, exhibits fair/reasonable levels of exhibits good levels of self exhibits high /very high levels of awareness and generalises experiences, fails to take into self-awareness, but some awareness, avoids generalisation of self-awareness, avoids insight (where account other perspectives or examine generalisation of experiences, experiences, often takes into account generalisation of experiences, appropriate, potential value sometimes takes into account other other perspectives and examines always takes into account other dependent on perspectives and examines potential value perspectives and examines the topic) * potential value potential value. evidence of development/learning and future development/learning needs context no evidence of relevant knowledge or little evidence of relevant some evidence of independent good/ excellent evidence of (knowledge of independent reading. knowledge. relies solely on reading such as books or journal independent reading such as relevant personal anecdote. articles. books or recent journal articles material and which supports the reflection and sources) or provides context clarity of not always clear what was intended. very some points may not be expressed most points expressed clearly and all points expressed clearly and expression poor style. extensive grammar or clearly. poor style. a number of succinctly. mainly engaging and succinctly. engaging and vocabulary errors grammar or vocabulary errors. comprehensible style. mainly correct comprehensible style. correct grammar and vocabulary grammar and vocabulary organisation little or no organisation of the material clear organisation of material but very clear organisation of material. excellent organisation of the at times the transitions are unclear. material, forming a coherent whole. *this may be slightly less relevant in some of the optional titles, such as clinic and legal education reviewed article 66 clinical legal education as an effective tool for improving the accessibility of protective injunctions for victims of domestic abuse: a case study example of the models of support available at northumbria university ana speed, northumbria university, uk* abstract protective injunctions are at the forefront of the family justice system’s response to protecting victims of domestic abuse. the accessibility of orders, however, has been compromised by the legal aid, sentencing and punishment of offenders act 2012 which has reduced the availability of public funding for victims of domestic abuse and led to an increase in victims representing themselves in such proceedings. research indicates that without legal support, a victim’s prospects of securing protection can be adversely affected, demonstrating a need for pro bono assistance for those who cannot afford to pay privately for legal services. whilst the provision of pro bono support in areas of unmet need is a principal aim of clinical legal education, research shows that few clinical programs in england and wales offer specialist services for victims of domestic abuse. this paper therefore considers the role that clinical legal education can play in improving the accessibility of protective injunctions. part one sets out a review of recent reforms within the family justice system and analyses how they have created an increased demand for pro bono legal reviewed article 67 support for victims of domestic abuse. part two examines the clinical landscape and the potential benefits to students of providing support to victims. by drawing on the case study of the student law office at northumbria university, part three sets out the various models of clinical legal education that may be utilised to support victims of domestic abuse. the benefits and limitations of each option for students and victims will also be considered. the paper is a helpful point of reference for clinicians and family law practitioners working in partnership with law school clinics who are considering offering support in this area. introduction since the 1970s protective injunctions have been at the forefront of the family justice system’s response to protecting victims of domestic abuse. the demand for protective injunctions can be attributed, in part, to the low rates at which domestic abuse offences are prosecuted1 and to victims prioritising their protection and that of any relevant children above the punishment of the perpetrator.2 over the last decade, however, reforms have taken place within the family justice system which have compromised * ana is a senior lecturer and clinical supervisor in the school of law at northumbria university. 1 over the last five years, there has been a decrease in the number of successful domestic abuse prosecutions year on year – from 70,853 in 2017, to 45,532 in 2020. this represents a fraction of the 758,941 domestic abuse offences which were recorded to the police in england and wales in 2020. see office of national statistics, domestic abuse in england and wales: year ending march 2017 (ons: 2017); office of national statistics, domestic abuse in england and wales overview: november 2020 (ons: 2020). 2 c. mcglynn, j. downes, j and n westmarland, ‘seeking justice for survivors of sexual violence: recognition, voice and consequences’ in e. zinsstag and m keenan eds restorative responses to sexual violence: legal, social and therapeutic dimensions (2017) routledge frontiers of criminal justice, 179–191; j herman, ‘justice from the victim’s perspective’ (2005) 11:5 journal of violence against women, 571-602. reviewed article 68 the accessibility of protective orders. the most notable change has been the legal aid, sentencing and punishment of offenders act 2012 (laspo) which has reduced the availability of public funding for victims of domestic abuse.3 research indicates that laspo has led to an increase in both the number of victims who do not take any action to secure protection through the family courts and the number of victims appearing as litigants in person in applications for protective injunctions.4 many litigants in person experience difficulties navigating the court process5 and this is exacerbated for victims of domestic abuse whose ability to effectively participate in proceedings may be compromised by having to face their abuser in court.6 research indicates that without legal support, a victim’s prospects of securing protection can also be adversely affected, demonstrating a need for pro bono assistance for those who cannot afford to pay privately for legal services.7 whilst the provision of pro bono support in areas of unmet need is a principal aim of clinical legal education, research shows that 3 d. hirsch, priced out of justice: means testing legal aid and making ends meet (loughborough university centre for research in social policy, 2018). 4 rights of women, evidencing domestic violence: nearly three years on (london: rights of women, 2015); ministry of justice and national statistics, family court statistics quarterly: october to december 2020 (ministry of justice and national statistics, 25 march 2021). 5 l. trinder, r. hunter, e. hitchings, j. miles, r. moorhead, l. smith, m. sefton, v. hinchly, k. bader, and j. pearce, litigants in person in private family law cases (ministry of justice, 2014). 6 j. birchall and s. choudhry, what about my right not to be abused? domestic abuse, human rights and the family courts (women’s aid, 2018); m. coy, k. perks, e. scott and r. tweedale, picking up the pieces: domestic violence and child contact (rights of women, 2012); m. coy, e. scott, r. tweedale and k. perks, ‘it’s like going through the abuse again: domestic violence and women and children’s (un)safety in private law contact proceedings’ (2015) 37:1 journal of social welfare and family law, 53-69. 7 a. speed and k. richardson, ‘should i stay or should i go now? if i go there will be trouble and if i stay there will be double: an examination into the present and future of orders regulating the family home in domestic abuse cases in england and wales, unpublished paper; a. durfee, ‘victim narratives, legal representation, and domestic violence civil protection orders’ (2009) 4(1) feminist criminology, 7-31. reviewed article 69 few clinical programs in england and wales offer specialist services to support victims of domestic abuse. against this backdrop, this paper considers the role that clinical legal education can play in improving the accessibility of protective injunctions. accessibility is interpreted broadly and within the paper is used to refer to the ease with which victims can access the family court to pursue an application and thereafter navigate the court process. further, it refers to the rates at which orders are granted compared to the rates at which they are applied for, since this is indicative of a victims’ prospects of securing protection. part one sets out a review of recent reforms within the family justice system and analyses how they have created an increased demand for pro bono legal support for victims of domestic abuse. part two then examines the clinical landscape and the potential benefits to students of providing such support. by drawing on the case study of the student law office (slo) at northumbria university, part three sets out the various models of clinical legal education that may be utilised to support victims of domestic abuse. the benefits and limitations of each option for students and victims will also be considered. the paper is a helpful point of reference for clinicians and family law practitioners working in partnership with law school clinics who are considering offering support in this area. reviewed article 70 part one: a review of the context and existing literature injunctive protection for victims of domestic abuse in england and wales, victims of domestic abuse can apply for injunctive protections in the civil courts or at the conclusion of a criminal trial (post-conviction or acquittal) under the protection from harassment act 1997. more commonly, however, injunctive relief will be sought through the family courts because of the wider range of orders available and because ‘the issues surrounding an abusive relationship can rarely simply be dealt with by way of an injunctive order alone and other interrelated family proceedings may be required’.8 the two main forms of injunctive protection available through the family courts are non-molestation orders and occupation orders (although more specialised forms of protection exist in forced marriage protection orders9 and female genital mutilation protection orders10). non-molestation orders aim to ‘prevent domestic abuse, stalking and harassment by prohibiting the offender from contacting the victim and/or attending certain places’.11 in contrast, occupation orders regulate the family home. they can be used to declare existing rights in the 8 k. richardson and a. speed, ‘two worlds apart: a comparative analysis of the effectiveness of domestic abuse law and policy in england and wales and the russian federation’ (2019) 83(45) the journal of criminal law, 324. 9 the forced marriage (civil protection) act 2007 introduced provisions into section 63a(1) of the family law act 1996 to protect a person being forced into a marriage, from any attempt at being forced into a marriage and by providing protection and assistance for those already forced into a marriage. 10 section 73 of the serious crime act 2015 inserted a new section 5a and schedule 2 into the fgma 2003 making provision for fgm protection orders. 11 l. bates and m. hester, ‘no longer a civil matter? the design and use of protection orders for domestic violence in england and wales’ (2020) 42(2) journal of social welfare and family law, 135. reviewed article 71 property, determine who should or should not live in the property and can potentially exclude one of the parties from living in or attending a specified area around the home.12 the remedies available to protect victims of domestic abuse are set to undergo reform shortly with the introduction of domestic abuse protection orders (dapos) through the domestic abuse act 2021. the home office has stated that dapos will ‘bring together the strongest elements of existing protective orders into a single comprehensive, flexible order which will provide more effective and longer-term protection to victims of domestic abuse and their children’13. whilst there is no intention at this point to repeal non-molestation orders and occupation orders, the home office has acknowledged, ‘it is our intention that dapos will become the ‘go to’ protective order in cases of domestic abuse’.14 dapos are likely to be more accessible than non-molestation orders and occupation orders as it is anticipated that third parties (i.e. the police, domestic abuse support services, and friends and family of the victim who have leave of the court) will be able to pursue an application on the victims’ behalf. nonetheless, it is still envisaged that victims will be the main category of applicant given that protection orders are praised for empowering victims to decide when and how to access protection.15 at this point, however, there is no set date for the introduction of dapos, as the home office have announced their intention for regional pilots prior to a full nationwide rollout. 12 family law act 1996, ss 33-38. 13 home office, policy paper: domestic abuse protection notices/orders factsheet (home office, 2020). 14 ibid. 15 bates and hester (n 11). reviewed article 72 research indicates that for many victims, protective injunctions are an effective means of reducing post-separation violence and abuse. cordier’s systematic review, for example, found that across 25 studies, protective orders reduced the quantitative occurrence of abuse.16 this aligns with the findings of humphreys and kaye’s study that the presence of a protective order made some women feel better protected.17 proceedings for non-molestation orders and occupation orders are started by completing the relevant application form18 and preparing a witness statement which addresses the circumstances leading to the application. it is anticipated that the same procedural requirements will apply for dapos in most cases.19 there is currently no court fee to apply. the court may grant an injunction without notice to the respondent where it considers it ‘just and convenient to do so’20, having regard to the circumstances set out in the legislation.21 if the application is made without notice, the reasons why notice has not been given must clearly be stated in the witness statement.22 where an order is made following a without notice hearing, the court must afford the respondent an opportunity to make representations relating to the order as soon as is just and convenient at a full hearing.23 at the ‘return’ hearing, 16 r. cordier, d chung, s. wilkes-gillan and r. speyer, ‘the effectiveness of protection orders in reducing recidivism in domestic violence: a systematic review and meta-analysis’ (2019) trauma, violence and abuse, 1-25. 17 c. humphreys and r. thiara, ‘neither justice nor protection: women's experiences of postseparation violence’ (2003) 25:3, journal of social welfare and family law, 195-214. 18 form fl401 applies to both forms of protection. 19 domestic abuse act 2021, ss 27-49. 20 family law act 1996, s 45(1). 21 family law act 1996, s 45(2). 22 family procedure rules 2010, rule 10.2(4). 23 family law act 1996, s 45(3). reviewed article 73 negotiations will take place to determine whether the respondent is in agreement to the order continuing, or whether a contested hearing to determine the truth of the allegations is required. proceedings which are not contested may therefore be concluded relatively quickly (i.e., within one month of the application) whilst those which are contested are likely to take up to six months to reach a disposal. barriers for victims of domestic abuse to access the family courts and secure protection reduced accessibility of legal advice and representation the family justice system has undergone significant reform over the last decade, driven by the introduction of laspo which came into effect in april 2013. laspo removed legal aid from the scope of most private family law cases, except where strict criteria are met regarding domestic abuse (including forced marriage and female genital mutilation), child abduction or child abuse.24 victims applying for a protective injunction do not need to provide evidence that they have been a victim of domestic abuse to secure funding (as they would if they were starting divorce or child arrangements proceedings), however they must still satisfy the means and merits tests, which research indicates is prohibitive for many victims.25 laspo introduced changes in respect of means testing for legal aid including freezing the financial 24 legal aid, sentencing and punishment of offenders act 2012, sch 1. 25 hirsch (n 8). reviewed article 74 thresholds, requiring all applicants to have capital under the assessed threshold and increasing the financial contributions which applicants may be required to make towards their legal costs. despite the government’s objective that victims of domestic abuse should continue to be eligible for legal aid, research suggests that in 2017, over 40% of victims were no longer able to access public funding.26 more recently, there have been judicial developments which should positively impact the availability of legal aid in applications for protective injunctions, such as the judgment in r (gr) v director of legal aid casework27, which will allow the legal aid agency to afford a ‘nil’ value to capital that victims cannot access (‘trapped capital’) in cases where they would otherwise pass the means assessment. further, as a result of a separate legal challenge brought on behalf of rh by the public law project and supported by the law society, the government agreed to change the rules on ‘imaginary capital’ by allowing for the full value of a person’s mortgage to be deducted when considering the value of a property for the means test. this change was subsequently implemented in january 2021 through the civil legal aid (financial resources and payment for services) (amendment) regulations 2020. nonetheless, even with these deductions some victims will still have capital over the threshold. other victims will not satisfy the means test based on having an income that exceeds the prescribed limits. as such, 26 legal aid practitioners group (lapg) manifesto for legal aid (second edition, 2017). 27 r (gr) v director of legal aid casework [2020] ewhc 3140 (admin) reviewed article 75 this development will not result in all victims of domestic abuse being eligible for funding.28 research indicates that the availability of funding directly impacts a victim’s decision to seek protection. a survey of 239 women in the uk found that over half took no action in respect of their family law problem because they were not eligible for funding.29 similar findings were reported by speed who noted that more than half (54%) of the domestic abuse specialists in her study felt that barriers to funding led to an increase in service users not pursuing legal claims where they may have done so previously.30 alternatively, victims who do not qualify for funding but who cannot afford to instruct a solicitor on a privately paying basis may, through limited alternatives, choose to represent themselves should they pursue proceedings.31 statistics on representation group all ‘domestic violence’ family court cases together. however, they demonstrate a yearly increase in the number of unrepresented applicants since laspo was introduced in april 2013, with 19.3% of applicants self representing in applications for injunctive protection in 2013, compared to 40.3% in 2019.32 28 speed and richardson (n 7). 29 rights of women (n 4). 30 a. speed, ‘an exploration into provision by specialist domestic abuse support services for victims/survivors in family court proceedings in england and wales, unpublished paper. 31 trinder et al (n 5). 32 ministry of justice and national statistics (n 4). reviewed article 76 difficulties securing legal advice and representation have been compounded by austerity measures which have de-funded support services and charitable organisations who otherwise may have been well placed to guide victims through the court process on a pro bono basis.33 as a result, it is now common for third sector organisations to provide one-off ‘general’ information about the court process (often by unqualified volunteers) rather than tailored advice or full casework due to high levels of demand.34 whilst domestic abuse support services are likely to be an exception to this, with research showing that many organisations have stepped up to offer some casework in family court proceedings, often these services are limited in the amount of time they can work with victims.35 further, support workers who are not qualified as independent domestic violence advisors (idvas) receive very little (if any) legal training. research suggests that as a result, some professionals misunderstand the law or fail to appropriately manage victims’ expectations about the legal process.36 this has also been recognised by the transparency project who noted that ‘parents are often given (well meaning) information or advice by support agencies (domestic abuse services... etc) that may include a mixture of what those 33 j. organ and j. sigafoos, the impact of laspo on routes to justice. research report 118 (equality and human rights commission, england; 2018). 34 ibid. 35 speed (n 30). 36 ibid. reviewed article 77 services think the law is or should be, but which isn’t really what is likely to happen at all’.37 research demonstrates that, at least in the early days of the pandemic, covid-19 exacerbated pre-existing barriers to accessing advice and support for many victims. the respondents to speed et al’s study highlighted the existence of physical barriers to seeking support where victims remained in the same home as their perpetrator.38 in addition, they considered that as most victims are women, they were disproportionately more likely to take on physical and psychological burdens as caregivers, resulting in time barriers to accessing support. ivendic et al found that whilst many support services had experienced a greater demand for their services, this was all driven by third party reporting/referrals, suggesting that under-reporting of domestic abuse was still present, particularly during periods of lockdown.39 the impact of reduced support was exacerbated by an increase in the rates at which nonmolestation orders and occupation orders were sought over the first year of the pandemic.40 although there has now been some return to ‘normality’ following the vaccine rollout, it is likely that some services will have not survived the pandemic 37 the transparency project, how do the family courts deal with cases about children where there might be domestic abuse? a guidance note for parents & professionals (the transparency project; 2018), 9-10. 38 a. speed, k. richardson and c. thompson, ‘stay home, stay safe, save lives: an analysis of the impact of covid-19 on the ability of victims of gender-based violence to access justice’ (2020) 84:6, the journal of criminal law, 539-572. 39 r. ivandic, t. kirchmaier and b. linton, changing patterns of domestic abuse during covid-19 lockdown: discussion paper. (centre for economic performance, 2020). 40 a. speed, k. richardson, c. thomson and l. coapes, ‘covid-19 and the family courts: key practitioner findings in applications for domestic violence remedy orders’ (2021) 33:3 child and family law quarterly, 215-236. reviewed article 78 whilst others will still be operating at a reduced capacity. statistics from january to march 2021 suggest that rates of applications for injunctive protection have not yet slowed and are 12% higher than the same period in 2020.41 navigating the family court as a victim litigant in person it is well documented that without a professional advocate, many litigants experience difficulties understanding the law and legal process. moorhead and sefton found, for example, that litigants struggle to ‘translate their dispute into legal form, i.e. understanding the purpose of litigation, confusing law with social and moral notions of ‘justice’ and identifying which legally relevant matters are in dispute’.42 unrepresented litigants are also more likely to experience difficulties in securing and funding evidence to help prove their case. 43 these issues are exacerbated for victims of abuse whose effective participation may be compromised by facing their perpetrator in the courtroom, notwithstanding that improvements to the current law around special measures and prohibitions on victims being cross examined by their perpetrator are set to be introduced by the domestic abuse act 2021.44 41 ministry of justice and national statistics, family court statistics quarterly: january to march 2021 (ministry of justice and national statistics; 2021). 42 r. moorhead and m. sefton, litigants in person: unrepresented litigants in first instance proceedings (london: department for constitutional affairs; 2005), 256. 43 k. richardson and a. speed, ‘restrictions on legal aid in family law cases in england and wales: creating a necessary barrier to public funding or simply increasing the burden on the family courts?’ (2019) 41(1) journal of social welfare and family law, 135-152. 44 family procedure rules 2010 rule 3a and practice direction 3aa; domestic abuse act 2021, ss 63 and 65. reviewed article 79 studies indicate that without legal representation victims’ prospects of securing injunctive protection may be compromised. durfee, for example, noted that ‘even with ‘victim-friendly’ procedures and forms, individuals without legal representation are significantly less likely to have their requests for protection orders granted’.45 her study found that ‘in cases where the abuse was severe and/or externally documented, the use of legal assistance by the respondent did not appear to affect hearing outcomes… in contested cases, however, where respondents retained a lawyer and/or filed affidavits disputing the petitioner’s claims of abuse, there was no external documentation of the abuse, or it was unclear whether the incidents described met the legal criteria for a protection order; variations in the form, content and structure of the narrative had important implications for case outcomes’.46 factors which seemingly made a difference to the outcome in these cases included that statements of case prepared by legal representatives were more focussed on satisfying the threshold criteria, contained very specific descriptions of events and were more likely to include supplemental supporting evidence. in contrast, applications filed by litigants in person were often short, contained incomplete information or focussed on general details about the relationship rather than specific incidents. applications containing information about specific incidents were successful in 74% of cases compared to 39% for those which did not. whilst durfee’s study was conducted in the usa, similar findings have been reached in relation to applications for injunctive protection in 45 durfee (n 7), 7. 46 ibid, 24. reviewed article 80 england and wales. speed and richardson’s study into the accessibility of occupation orders, for example, found evidence of applications being refused for containing substantive deficits (i.e., insufficient information about the abuse) and minor procedural deficits (i.e., applications for occupation orders and non-molestation orders being filed as two separate application forms rather than on the same form), whilst a separate study also suggested that this issue continued once hearings were moved online because of covid-19, as part of the remote access family court.47 part two: clinical legal education and support for victims of domestic abuse the literature examined in the preceding section demonstrates that there is a clear need for pro bono legal advice and representation for victims of domestic abuse in applications for injunctive relief. given that some of the central goals of clinical legal education are to render services to those who are unable to afford legal services, challenge injustice and imbue students with a social and professional responsibility to pursue social justice in society’48 supporting victims of domestic abuse in applications for injunctive protection would appear to be a worthwhile endeavour for clinical programmes, capable of promoting and upholding these ambitions. this has been 47 speed and richardson (n 7), speed et al (n 40). 48 i. byron, the relationship between social justice and clinical legal education: a case study of the women’s law clinic, faculty of law, university of ibadan, nigeria (2012) paper presented at the 11th international journal of clinical legal education conference, entering the mainstream: clinic for all. reviewed article 81 recognised by the american academics breger and hughes, who identify four main benefits – for victims and the students who support them – of incorporating teaching about domestic abuse into the clinical curriculum.49 firstly, they argue that it promotes access to justice for families in need. this argument draws on the idea considered above that ‘the legal system is currently confronted with increasing numbers of victims of family violence, primarily children and women, who are in dire need of legal representation and facing a system that simply cannot accommodate them… the unfortunate reality is that but for student clinic representation, many litigants would have no representation at all’.50 secondly, they argue that clinical teaching in the context of domestic abuse can provide an important foundational tool for teaching lawyering skills. whilst this is arguably true of most practice areas, they note that cases involving domestic abuse typically possess characteristics that make them ‘particularly appropriate for clinical study’ including that applications for injunctive protection return to court regularly over a short period of time.51 thirdly, breger and hughes recognise that domestic abuse is an evolving area of law and practice which intersects with many other legal topics which are typically taught in an undergraduate legal curriculum including personal injury/trespass to the person within tort law and offences against the person under criminal law. finally, they argue that enabling students to engage with domestic abuse law in clinic can be a vehicle to inspire law 49 m. breger and t. hughes, ‘advancing the future of family violence law pedagogy: the founding of a law school clinic’ (2007) 41 university of michigan journal of law reform, 167-188. 50 ibid, 174. 51 ibid, 176. reviewed article 82 graduates to practice family violence law and to educate the future bar and bench. whilst inevitably not all students will go on to become family practitioners, law students are ‘future judges, policy specialists, prosecutors and criminal defence attorneys’ who need to be ‘well-informed and sensitive to the issues they will encounter in practice’.52 although breger and hughes were writing in the context of the american legal system, similar issues have been identified in england and wales where despite there being extensive practice guidance, some professionals (including legal practitioners, the police and the judiciary) demonstrate a poor understanding of the dynamics of domestic abuse.53 the above argument highlights a need for greater understanding of the impact of trauma and vulnerability in family court proceedings. canadian clinicians smythe et al recognise that practising areas such as domestic abuse law in clinic can address this gap by enabling students to become ‘trauma informed’ practitioners, capable of understanding ‘how trauma occurs and its consequences, as well as being educated about the political context in which it has arisen’.54 in turn, this enables clinical students to ‘communicate, interpret narrative, and build trust – all of which are 52 ibid, 179. 53 r hunter, a barnett and f kaganas, ‘introduction: contact and domestic abuse’ (2018) 40:4 journal of social welfare and family law, 401-425; ministry of justice, assessing risk of harm to children and parents in private law children cases: final report (ministry of justice: 2020), 1-216; m. burton, ‘civil law remedies for domestic violence: why are applications for non-molestation orders declining?’ (2009) 31(2), journal of social welfare & family law, 110-20. 54 g. smyth, d. johnstone and j. rogin, ‘trauma-informed lawyering in the student legal clinic setting: increasing competence in trauma informed practice’ (2021) 28:1 international journal of clinical legal education, 161. reviewed article 83 foundational to the lawyer-client relationship’.55 smythe et al acknowledge there are particular advantages of such work taking place in a clinical setting. whilst recognising that trauma is a universal human experience, they also argue that it is ‘experienced more often, and often with greater impact, by people who are marginalised within dominant power structures’.56 this makes understanding trauma particularly relevant for lawyers in student clinics given that many clients who seek their support experience multiple intersecting forms of marginalisation.57 building on the idea that teaching clinical students to litigate on behalf of women subjected to abuse exposes them to different approaches to lawyering, goodmark argues that clinics can develop students’ understanding and experience of ‘clientcentered lawyering’, which prioritises the empowerment of victims through assisting women to ‘make their own choices and then working with them to realise those choices’.58 she also argues, however, that with their focus on challenging injustice, clinics also encourage students to think beyond advocating for a particular individual and consider the ways that ‘systems work to benefit or harm their clients and what they can do to improve or change those systems’.59 in turn, they can contribute to the development of domestic abuse law and policy. she notes that in comparison to campaigners, practitioners and law makers, students can be ‘less dogmatic about the 55 ibid, 149. 56 ibid, 150. 57 ibid. 58 l. goodmark, ‘the role of clinical legal education in the future of the battered women’s women’ (2013) 22 buffalo journal of gender, law and social policy, 32. 59 ibid. reviewed article 84 appropriate responses to domestic violence, less tied to the current law and policy and more open to thinking about a range of experiences and opportunities, enabling them to be more creative in their thinking’.60 they are also more willing to acknowledge the limitations of the law in addressing domestic abuse and think about ‘ways to find justice beyond the justice system’.61 this could include engaging clients in restorative justice, mediation and community-based justice. as this paper will go on to consider in part three, such forms of alternative dispute resolution continue to be largely discounted as a means of achieving a resolution for victims of domestic abuse, both within and outside a clinical setting in england and wales. in one of the only studies to discuss domestic abuse and clinical legal education in the context of england and wales, speed and richardson evaluated student participation in the 16 days of activism against gender-based violence campaign, part of which involved students providing one-off advice to victims of domestic abuse as part of an outreach clinic.62 supporting smythe et al, speed and richardson found that students who participated in the project demonstrated increased competency in understanding the breadth and scope of abusive conduct and recognising triggers that may indicate a client had been subject to abuse. in turn, this allowed the students to ask more effective fact-find questions, produce higher quality research and offer more tailored 60 ibid, 44. 61 ibid, 35. 62 a. speed and k. richardson, ‘promoting gender justice within the clinical curriculum: evaluating student participation in the 16 days of activism against gender-based violence campaign’ (2019) 26:1 international journal of clinical legal education, 87-131. reviewed article 85 support. their data also suggests that law students are often drawn to legal issues which allow them to support individuals through a time of crisis. the students described finding value in the work, with feedback including ‘working in this project has helped me learn and grow and i think become a more well-rounded individual never mind practitioner’ and ‘working in communities and with women where they seemingly have no other access to legal advice made it more satisfying that i was able to be a part of it’.63 supporting breger and hughes, following their participation in the campaign several of the students decided to pursue a career working with victims of domestic abuse, albeit not in the legal sector. reflecting that many clinics with an offering for victims of domestic abuse are based in the usa and canada, most of the literature considered above is based on the experiences of north american clinicians. it is estimated, for example, that in 2010, there were 40 clinics in the usa dedicated primarily to domestic violence and a further 39 clinics primarily practising family law which were also likely to deal with domestic abuse cases.64 goodmark attributes this, in part, to the availability of funding through the legal assistance for victims grant program which many legal clinics have been able to access. she notes that the funding was a ‘tremendous boon for domestic violence clinics, because it made money available to provide civil legal services and train future generations of lawyers to provide civil legal assistance to women 63 ibid, 115. 64 goodmark (n 58), 30. reviewed article 86 subjected to abuse’.65 accordingly, she recognises that clinical legal education and the violence against women and girls (vawg) movement have had ‘parallel and intersecting paths’ with both movements developing alongside each other.66 in contrast, the clinical legal education movement in england and wales developed much later than in the usa.67 further, in england and wales very few law school clinics hold legal aid contracts, and most are funded entirely by their institution, leading to restrictions both on the areas of practice and the extent of work that can be carried out for clients.68 whilst 70% of the 78 law school clinics in the united kingdom who responded to the 2020 lawworks survey reported providing family law services, less than 30% offered services in relation to domestic abuse.69 this is an increase, however, on the position in 2014 when only 10 clinics offered family law services, one clinic specialised in supporting victims of domestic abuse and four clinics reported sending students on externships with a partner organisation which specialised in domestic abuse.70 in terms of services offered, half of the respondents to the 2020 survey reported that their clinic provided generalist advice only, half provided quasi-legal services such as form 65 ibid, 31. 66 ibid, 27. 67 o. drummond and g. mckeever, access to justice through university law clinics (ulster university and the legal education foundation, 2015). 68 one exception to the basic position that law clinics in england do not offer legally aided services is the university college london who were awarded a contract for housing and community care law in 2018. 69 j. sandbach and r. grimes, law school pro bono and clinic report 2020 (lawworks and cleo; 2020). 70 d. carney, f. dignan, r. grimes, g. kelly and r. parker, the lawworks school pro bono and clinic report 2014 (lawworks 2014). reviewed article 87 filing and mckenzie friend services, 36% provided specialist advice and around 20% offered representation in court proceedings for clients.71 either alongside or instead of client services, 30% of clinics engaged in law reform projects and nearly 70% offered students an opportunity to undertake public legal education. the conclusions that can be drawn from this data are that whilst domestic abuse is a growing area of practice in clinics, it is still relatively uncommon for students to engage in this area within their clinical curriculum. further, for those that do, it is often in relation to discrete aspects of a case (i.e., akin to an unbundled service) or through providing non case work related services. part three: methods of incorporating support for victims of domestic abuse into the clinical curriculum – the case study of the student law office all northumbria university students enrolled on the four-year m law exempting law degree (a programme which combines the undergraduate law degree with the requirements of the legal practice course (lpc) or bar practitioner training course (bptc)) undertake a year-long assessed clinical module in the slo in the penultimate year of the degree programme. this option is also available to students on the llb programme, and for lpc and bptc students as an elective module in the second 71 sandbach and grimes (n 69). reviewed article 88 semester. students provide pro bono advice and potentially representation to members of the public under the supervision of a qualified solicitor, barrister, or caseworker. alongside their client work, students may also engage in public legal education work which aim to educate members of the public about their legal rights and responsibilities. more recently, with the development of a policy clinic within the slo72 students have also been able to work in partnership with an external organisation to research, critique and make proposals for reforming the existing law. around 200 students undertake work in the clinic each academic year.73 two of the clinicians (kayliegh richardson and the author) are family solicitors specialising in supporting victims of domestic abuse. between them, they supervise around 24 clinical students each year. the development of initiatives to support victims of domestic abuse was the result of these two practitioners joining the slo team in 2015 and 2016 respectively, together with an increase in requests for support within the clinic from victims of domestic abuse often in desperate need for protection and with no other prospects of assistance. it should be noted that this increase in requests is anecdotal given that the slo does not maintain a record of the number of enquiries specifically from victims seeking injunctive protection and indeed, any such records would likely be unhelpful given that it is often only after receiving advice that 72 r. dunn, l. bengtsson and s. mcconnell, ‘the policy clinic at northumbria university: influencing policy/law reform as an effective educational tool for students’ (2020) 27:2 international journal of clinical legal education, 68-102. 73 information about the student law office can be accessed at: https://www.northumbria.ac.uk/aboutus/academic-departments/northumbria-law-school/study/student-law-office/. https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/ https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/ reviewed article 89 some victims become aware that they require protection. whilst advice and representation services are available every academic year, some of the other models of support operate on a more discrete basis, for example, where a partner organisation approaches the slo to engage in a collaborative venture. the different initiatives, together with the benefits and limitations associated with each model, are considered in detail below. (a) providing initial advice in line with the adage that knowledge is a route to empowerment, the provision of early advice is recognised as a cornerstone of access to justice.74 trinder et al note that ‘without some form of informed guidance at the initial stages, litigants face great difficulties in attempting to understand and act upon the substantive law’ and may resort to unofficial sources which contain inaccurate or incomplete information.75 the provision of initial advice in the slo therefore aims to increase victims’ knowledge about their legal options so they can make an informed decision about whether it is in their interests to seek protection. in this sense, the slo embraces client-centered lawyering, as discussed by goodmark, by recognising that ‘the client is best suited to 74 organ and sigafoos (n 33). 75 trinder et al (n 5), 37. reviewed article 90 assess her tolerance for risk and to determine the possible non-legal consequences of legal intervention’.76 as with any client who comes to the slo, the students take the lead on conducting the initial factfind appointment, researching the merits of the case, conducting an advice appointment, and confirming the advice in writing. however, the nature of domestic abuse cases means there are some additional considerations. firstly, students must quickly become familiar with the legal aid criteria to enable them to carry out a preliminary assessment of the client’s eligibility. in cases where it appears that a client is eligible, a referral will be made to a legal aid firm and the slo will have no further involvement given that this is a preferable funding option. supporting goodmark, who argued that clinics encourage students to think beyond advocating for a particular individual, this provides students with an important introduction to the different options for funding cases and often sparks a conversation about the fairness of the decision-making criteria and the recent legal aid reforms. secondly, in contrast to other cases, advising a victim of domestic abuse requires the students to think about what other needs – such as for housing, welfare benefits and therapeutic counselling – a client may have. whilst the students are not expected to act upon this, discussions should take place with the client about whether referrals to appropriate services should be made. the need for a holistic approach to advising clients suggests that there is also value in clinical models where students work in 76 goodmark (n 58), 31. reviewed article 91 partnership with external organisations, meaning a range of services can be provided under one roof. an example of such a project is the future living hertford family law clinic where students provide initial legal advice to victims at the facilities of a specialist provider of counselling and therapeutic support.77 thirdly, although true of all practice areas, but particularly evident in domestic abuse cases, safeguarding student wellbeing must be prioritised during the conduct of a case. at the start of the module, students are asked to confirm whether they feel comfortable working on cases involving domestic abuse and other sensitive issues. however, even where students have agreed to this, they may still experience vicarious trauma through their clients or else relive their own trauma.78 as identified by smythe et al, it is therefore vital that they ‘employ modes of self-care’ to counterbalance these effects.79 within the clinic, students are encouraged to prepare reflections on their experiences which can remain private or be shared with their supervisor. regular debriefings also take place during weekly firm meetings. whilst the author is not aware of any circumstances where this has been needed because of a students’ participation in domestic abuse work, free on-site counselling services also exist for northumbria university students. 77 see https://www.herts.ac.uk/study/schools-of-study/law/pro-bono-activities/future-living-hertfordfamily-law-clinic. 78 smythe et al (n 54). 79 ibid, 161. https://www.herts.ac.uk/study/schools-of-study/law/pro-bono-activities/future-living-hertford-family-law-clinic https://www.herts.ac.uk/study/schools-of-study/law/pro-bono-activities/future-living-hertford-family-law-clinic reviewed article 92 the final consideration which distinguishes domestic abuse from other practice areas is the speed at which advice often needs to be provided. in many cases, the students will be aware that the case relates to domestic abuse protection, and this allows them to consider what additional information they require, conduct research, and begin formulating some basic advice in advance of the appointment. invariably, however, there are some clients who will come to the slo seeking advice about a separate matter (usually divorce or child arrangements) and it is only during the factfind appointment that it becomes apparent the client is experiencing domestic abuse and requires urgent protection. this may be identified as part of basic screening questions that the students have asked or because the students have picked up on subtle disclosures made by the client, which have been identified because of training the students receive at the start of the module. from a supervisory perspective, the need to identify disclosures is crucial in reducing the risk of a negligence claim where we fail to advise clients about any claims which may arise out of the abuse.80 however, it also protects the client because otherwise requiring them to recount their experience on multiple occasions risks retraumatising them.81 where domestic abuse is identified at an initial appointment, it is not acceptable for the usual process of researching and advising the client (which may take some weeks) to take place. instead, the supervisor will need to work with the students to consider the extent of the retainer and, where 80 m. drew, ‘lawyer malpractice and domestic violence: are we revictimising our clients?’ (2005) 39:1 family law quarterly, 7-25. 81 ibid. reviewed article 93 this is limited to initial advice only, conduct some basic research about the process of applying for protection and the merits of the client’s application, so that the client receives some oral advice on the same or the following day. the supervisor may also join the advice appointment so that any of the client’s questions can be addressed fully. more detailed research can then be carried out by the students before the advice is confirmed in writing. consideration will also be given to whether there are any other local pro bono organisations who may be able to support the client through proceedings or whether a referral through courtnav should be made.82 on the one hand, the speed at which advice is provided in these cases is more reflective of legal practice (thereby upholding the clinical aim of giving students a realistic experience) where emergency applications are often issued on the same day that initial instructions are taken. on the other hand, however, the supervisor will likely need to provide higher levels of direction than in non-urgent cases. whilst it is correct that this is somewhat counterintuitive to clinical objectives, it is the author’s position that student autonomy cannot come at the cost of client safety. further, the limitations of this are offset by the fact that alongside general clinical skills (i.e., research skills and written communication) working on a domestic abuse case also allows students to develop enhanced or specialised skills compared to other areas of law. breger and hughes argue, for example, that whilst the statutes which govern 82 courtnav is a digital tool provided by rcj citizens advice which can support a victim to prepare an application for injunctive protection. more information is available at: https://injunction.courtnav.org.uk accessed 14 october 2021. https://injunction.courtnav.org.uk/ reviewed article 94 applications for protection orders (in the english context, the family law act 1996 and the domestic abuse act 2021) are relatively straightforward instruments, meaning students are quickly able to develop a working understanding of the law and legal process, factually, cases are often ‘complex and nuanced… enhancing law students’ mastery of fact investigation, interviewing and client counselling’.83 further, in the author’s experience, working with victims of domestic abuse challenges many of the students’ initial misconceptions and judgements, such as a belief that physical abuse is more harmful than emotional abuse, that some forms of abusive conduct do not constitute domestic abuse (i.e., financial abuse) and failing to understand why many victims remain in abusive relationships. this suggests that working in clinic can improve students’ understanding of the dynamics of domestic abuse, whilst also resulting in them becoming more sensitive, trauma informed practitioners who are capable of understanding how trauma occurs and its consequences.84 from a client perspective, receiving tailored advice through the clinic empowers victims to make informed decisions about whether and when to seek protection. in contrast to online sources, where the relevance and quality of information is often difficult for victims to determine85 advice received through the clinic has been tailored to an individual client’s circumstances and approved by a qualified practitioner. through facilitating referrals to other support services, clinics can also help clients 83 breger and hughes (n 49), 176. 84 smythe et al (n 54). 85 trinder et al (n 5). reviewed article 95 gain access to non-legal forms of support, including refuge accommodation and resettlement services, therapeutic support and community-based services.86 a limitation of this model, however, is that support does not extend to preparing the initial application form or witness statement. research consistently demonstrates that this is where assistance is particularly valuable, given that ‘errors and omissions in the preparatory work done by litigants in person impact on court staff workloads and on the conduct of the hearing itself’87 and that applications prepared by victims without any assistance may in some circumstances be more likely to result in an application being refused.88 for those clinics already offering initial advice in these cases, consideration should therefore be given to whether there is the capacity and expertise to extend support to the application stage. where resourcing is an issue, clinics could follow the partnership model, such as between city university london law school and the national centre for domestic violence, where the students conduct a telephone appointment and thereafter prepare the witness statement for court.89 without such support, clinics may improve accessibility of protective orders by empowering victims to pursue an order, but fail to arm clients with the skills to increase the prospects of their application being granted. 86 l. kelly, combating violence against women: minimum standards for support services (directorate general of human rights and legal affairs, council of europe; strasbourg, 2008). 87 ibid. 88 speed and richardson (n 7); durfee (n 7). 89 v. lachkovic, mckenzie friends for victims of domestic violence: training law students to assist the court and the victim (paper delivered at the 8th worldwide gaje conference, eskisehir, turkey, july 2015). reviewed article 96 (b) casework/representation in appropriate cases, such as where the victim has no other form of support and the supervising solicitor has capacity and sufficiently enthusiastic students, the slo will conduct casework and representation on behalf of victims in injunction proceedings. whilst it is the supervising solicitor who will go on the court record as the representative, the students remain the point of contact with the client, conducting research and preparing advice as required, complying with court directions, and assisting the client to collect evidence. it has been recognised that injunction proceedings are well suited to being practised within a clinical setting because proceedings are usually concluded in between one and six months, meaning students can ‘typically draft at least one pleading, interview several witnesses, negotiate, appear in court and potentially conduct a trial all within a single academic period’.90 whilst the workload is likely to be relatively high throughout this period, the students are rewarded by gaining a holistic understanding of the law and the legal process. in turn, they gain more opportunities to develop their case management skills, ability to strategise and experience managing a client relationship than when services are restricted to initial advice. injunction proceedings also differ from other types of cases in that they are often started on an ex-parte (i.e., without notice) basis. this provides students an opportunity to exercise their advocacy skills in an uncontested and therefore 90 breger and hughes (n 49), 177. reviewed article 97 potentially less challenging environment. following the ex-parte hearing, research suggests that less than 14% of respondents in injunction proceedings secure representation (based on figures from 2019 and 2020)91, meaning that even at the return hearing stage, students are likely to have more understanding of the legal and factual issues in dispute than their opponent. as recognised by speed et al, injunction applications (at least until they become contested) are usually conducted by junior fee earners and it is in such proceedings that paralegals and trainee solicitors cut their teeth in the courtroom.92 accordingly, for those students seeking a career in family law, the opportunity to develop their advocacy skills at such an early stage is useful experience for what is to come. proceedings for injunctive protection are typically heard in judge’s chambers within the family court or in the magistrate’s court.93 whilst prima facie clinical students do not have rights of audience, the legal services act 2007 provides that a person is an exempt person for the purpose of exercising a rights of audience before a court if they are conducting litigation under the supervision of an authorised person (i.e. a qualified solicitor).94 these rights have subsequently been extended to apply in the family court under the crime and courts act 2013.95 the provisions do not, however, apply to cases heard in the magistrates court and therefore a students’ ability to conduct advocacy will depend on which court the 91 national statistics and family court statistics, family court statistics quarterly jan – march 2021 (national statistics and family court statistics, 2021). 92 speed et al (n 40). 93 kelly (n 86). 94 the legal services act 2007, sch 3 para 1(7). 95 the crime and courts act 2013, sch 10 part 2 para 98(1). reviewed article 98 hearing is allocated to. in the author’s experience, when faced with the opportunity to conduct advocacy, most students opt to clerk the hearing (i.e., by observing the proceedings and keeping an attendance note of the matters discussed). this is potentially reflective of student demographics in the slo where most students are prospective solicitors in the third year of their undergraduate studies. the position may, therefore, be different for clinicians supervising prospective barristers or those who undertake a clinical programme as part of a postgraduate programme, who may have more confidence and incentive to develop advocacy skills from this early stage. it is recognised that starting a full representation model is not viable in all clinics, principally due to limitations on resourcing. in contrast to the usa, where full representation domestic abuse clinics are popular, many law school clinics in the uk are poorly resourced.96 academics have acknowledged that law is a particularly underfunded subject area due to a misconception that it is a solely classroom-based subject, meaning it attracts the lowest level of per student funding.97 funding issues have been exacerbated by cuts to state funding for higher education which have led to increased scrutiny of the resources allocated to clinical activity98 and more recently, by covid-19 which has impacted income streams at many institutions, at least in the short term. resourcing can impact a law school’s capacity to conduct injunction proceedings because clinics need to be staffed by solicitors and barristers, whose 96 drummond and mckeever (n 67). 97 j. marson, a. wilson and m. van hoorebeek, ‘the necessity of clinical legal education in university law schools: a uk perspective” (2005) 7 international journal of clinical legal education, 29-43. 98 drummond and mckeever (n 67). reviewed article 99 practising certificates must be renewed each year. further, staffing resources affect the amount of time that can be dedicated to clinical activities. the lawworks study identified that 70% of clinical supervision in the uk is provided by members of law school’s academic staff.99 academic staff typically teach across multiple modules and increasingly have administration and research commitments which may reduce their capacity to develop and lead new clinical offerings. in the author’s experience, supervising injunction proceedings can be particularly onerous at the outset where cases are made on an urgent basis, given that cases are usually taken on at the start of the academic year when the students have the least experience. moreover, only 65% of clinics in the uk currently operate outside of term time.100 this would preclude the remaining 35% from providing a full representation service, given that cases may operate all year round. from an institutional perspective, however, there are merits in supporting clinicians to deliver ambitious projects, both because students report considering the availability of clinical programmes in deciding where to apply to/attend university and because of the availability of awards which can enhance a university’s reputation. supporting this, northumbria law school was awarded the ‘best new pro bono activity’ at the lawworks and attorney general student pro bono awards 2018 in recognition of the slo’s work supporting victims of abuse. from a client perspective, there are clear benefits to providing casework assistance. as trinder et al recognise, ‘much of the work in a family case is conducted before and 99 sandbach and grimes (n 69). 100 ibid. reviewed article 100 between hearings rather than in the courtroom itself’.101 offering casework can therefore alleviate this pressure on victims at a time when they may be uprooting their lives following the end of an abusive relationship. the important role of casework, however, does not detract from the need for full representation services given that ‘the court process is predicated upon a full representation model, and this becomes even more apparent when litigants in person reach the courtroom’.102 litigants in person are more likely to participate in hearings at a ‘lower intensity’ yet make more mistakes.103 in the context of domestic abuse, representation also has value in preventing victims from being required to present their case in the presence of her perpetrator, which is likely to be distressing notwithstanding the availability of special measures. regardless of the scope of support offered by law school clinics, there will always be limitations on such services. the number of victims who can be supported by the slo, for example, is correlated to the level of support offered, meaning that the two slo family practitioners who specialise in domestic abuse only have capacity to take on a handful of cases on a full representation basis each year (the exact number will depend on the number of cases which are resolved after the return hearing and the number which are contested). in addition, some cases will be taken on with a more limited retainer. supervisors may also take on non-domestic abuse cases. if support was 101 trinder et al (n 5), 35. 102 ibid, 53. 103 moorhead and sefton (n 42), 255. reviewed article 101 provided on an advice-only basis, however, higher numbers could receive some assistance. family court statistics show that there are between 4,500 and 5,500 applications for occupation orders each year (and more than 20,000 applications for non-molestation orders) with between a third and half of applications in any given year being made by litigants in person.104 as such, the number of victims supported through the clinic is a drop in the ocean compared to the number of victims seeking support, albeit it is anticipated that with the introduction of dapos some of these applications may be pursued by vawg stakeholders (i.e. the police and domestic abuse support services) once dapos are introduced. a further limitation concerns inter-related proceedings. as highlighted elsewhere by the author, injunction proceedings usually precede other family applications, including divorce and child arrangements.105 due to the limitations on capacity, it would be unusual if support could also be provided in interrelated proceedings. as such, victims may find that whilst they benefit from legal representation from the clinic in one set of proceedings, they face no choice but to act as a litigant in person in the other proceedings. (c) policy work 104 figures directly obtained from ministry of justice and national statistics, family court statistics (ministry of justice) <https://www.gov.uk/government/collections/family-court-statistics-quarterly> accessed 23 september 2021. 105 richardson and speed (n 8). https://www.gov.uk/government/collections/family-court-statistics-quarterly reviewed article 102 covid-19 posed challenges for victims of domestic abuse, with reports that in the first lockdown the frequency and severity of abuse worsened for many victims who remained in a relationship with their abuser.106 covid also posed challenges for law school clinics, with clinicians identifying that supervisors had to think creatively and act fast to keep clinical programmes running.107 given that there was a marked reduction in the availability of pro bono support for victims in family court proceedings at the early stages of the pandemic108 the most effective way to support victims seeking protection during this time would arguably have been to continue offering client services remotely. whilst some clinics have reported setting up remote advice-only clinics serving victims of abuse during this period109 the slo ultimately did not operate a live-client model during the 2020/21 academic year because of concerns around protecting client data and maintaining confidentiality where students were not able to attend the clinic due to university closures. as a result, covid-19 presented an opportunity for the slo family law practitioners to find innovative solutions to supporting victims seeking protection, whilst also meeting the educational aims of the module. in response, a decision was made to undertake a policy project which clinicians may otherwise not have had capacity to supervise due to the amount of time ordinarily dedicated to providing a full representation service. 106 ivandic et al (n 39); women’s aid, a perfect storm: the impact of the covid-19 pandemic on domestic abuse survivors and the services supporting them (women’s aid, august 2020). 107 a. thurston and d. kirsch, ‘clinics in time of crisis: responding to the covid-19 outbreak’ (2020) 27:4 the international journal of clinical legal education, 179-195. 108 speed et al (n 38). 109 thurston and kirsch (n 107). reviewed article 103 whilst it is well-documented that in the usa clinics are involved in ‘domestic abuse task forces and coordinating councils; engage in legislative reform to address deficiencies in the legal system and in the law; and study the operation of police and courts, making suggestions for improvement’ the author is only aware of one other policy project (which was supervised by the author’s colleagues kayliegh richardson and rachel dunn in 2019 and which is not discussed further in this paper) conducted in a clinic in relation to domestic abuse. the author has not been able to find any published case studies from similar projects taking place in the uk, suggesting that policy work in the context of domestic abuse is relatively uncommon.110 the project saw 15 clinical students conducting research on behalf of the national charity surviving economic abuse (sea). the research explored trends in the rates at which occupation orders were sought and granted and aimed to identify any barriers victims face to securing protection. sea was motivated to commission the project because of a perception that their service users’ applications for occupation orders were frequently unsuccessful. the clinicians considered that the project could uphold the social justice aims of clinical education due to its focus on the importance of maintaining a robust legal response to domestic abuse and because the project was underpinned by a shared recognition between the clinicians and sea that ‘women who want to invoke the power of the civil and criminal laws should have access to a system that provides a timely, effective and victim-centered response’.111 data was 110 goodmark (n 58), 33. 111 ibid. reviewed article 104 collected through an analysis of family court statistics, a questionnaire of professionals who represented or otherwise supported victims through proceedings for injunctive protection and in-depth interviews with victims who had applied for an occupation order. whilst this project involved a new partnership with an external organisation, it would also be possible for students to undertake legal research in ‘an area of concern raised by a client case’.112 however, working for an external organisation was beneficial in that it appeared to give the students a sense of ownership of the project and accountability in terms of managing tight timescales. supporting dunn et al’s findings the project upheld the pedagogic aims of clinical education by allowing the students to undertake a wide range of activities on behalf of their client including ‘conducting a literature review of the relevant area of law to explore the background and to appreciate the importance of the research’, ‘analysing the data collected to gain the experience of working with raw data and deciding how to code that data in order to report on their findings’ and ‘writing up their research findings in an evaluation report for their client which includes recommendations for law and/or policy reform’.113 in common with the advice and representation models considered above, engaging in policy work allowed the students to develop the skills assessed in most clinical modules, including teamwork, research skills, written communication, critical analysis, the ability to strategise, knowledge and understanding of the law and reflection skills. the project also facilitated the students 112 dunn et al (n 72), 72. 113 ibid, 73. reviewed article 105 to develop skills that they otherwise might not have. in contrast to live client work, for example, which only requires students to consider how the present legal position impacts a client, the policy project required the students to examine the law in its context and analyse the impact of past and forthcoming changes to the legal landscape including laspo, covid-19 and the domestic abuse act 2021. moreover, participating in the project gave the students an opportunity to develop ‘first-hand experience of the crucial role a lawyer can play in recommending and influencing law reform for the greater public good’.114 this supports the idea that policy work in the field of domestic abuse can bring together scholarship and activism, when these worlds may ordinarily be quite separate.115 the data analysed by the students highlighted clear deficiencies in the law including that the strict threshold criteria is difficult for victims to satisfy, that the courts are hesitant to grant victims extensive protection over the family home and that barriers to securing orders particularly impact litigants in person. these findings make a significant and original contribution to the existing knowledge in this area, suggesting that policy work conducted in clinics can be ‘an essential part of the dedicated working on behalf of women subjected to abuse’.116 a limitation of the project from a student perspective, however, was that due to the participants involving potentially vulnerable subjects, ethical approval was refused 114 ibid, 77. 115 e. schneider, ‘violence against women and legal education: an essay for mary joe frug’ (1992) 26 new england law review, 843-875. 116 dunn et al (n 72). reviewed article 106 for the students to conduct interviews with the victims. as such, this restricted their involvement in some parts of the project and placed an increased workload on the supervising solicitors. this decision is somewhat at odds with the fact in the ordinary course of the module, the students would have been able to conduct fact-find and advice appointments with victims as part of a live client case. a further limitation was that as the students were not also running a live client case in conjunction with their policy work, there were some gaps in the students’ practical experience of the law, meaning they were not always able to appreciate the ‘symbiosis between individual representation and policy work’.117 this suggests that there would be value in engaging in hybrid policy/live client model, as discussed by dunn et al. 118 in terms of the benefit to victims of domestic abuse, policy work has the potential to make a difference to greater numbers than live client work. in contrast to advice services, the policy work undertaken for this project could not lead to a reduction the numbers of unrepresented litigants. however, insofar as the recommendations made within the report are taken on board, it could contribute to improvements in the court process. as such, it offers a qualitatively different form of support for victims. effecting change through policy research is not, however, a guaranteed outcome and whether the recommendations are reviewed by the appropriate bodies and thereafter acted upon will ultimately depend on the channels through which the work is disseminated, the connections between the clinic and/or underlying client and law 117 goodmark (n 58), 33. 118 dunn et al (n 72). reviewed article 107 reformers and the quality of the research. this is something which clinicians involved in policy work must consider at the outset of a project to maximise the prospects of the work achieving its goals. given that our policy work for sea only concluded in may 2021, it is potentially too soon to see what, if any, impact the work will have. a further benefit to victims may result from engaging in policy research as a research participant. many of the victims who were interviewed as part of the study with sea volunteered that their rationale for participating was to improve the family court process and the effectiveness of remedies for other victims, often because of their own difficult experience. studies also suggest that participating in research around domestic abuse and ‘sharing their story’ is a key component of ‘thrivership’ for victims – the transition from surviving to thriving after domestic abuse.119 (d) public legal education: developing the capacity of others to assist victims it is well documented that specialist domestic abuse organisations offer advocacy services to support victims throughout legal proceedings.120 research suggests that in contrast to other pro bono organisations, support services often engage in more extensive levels of casework, including assisting women to identify their legal needs, prepare and file court paperwork, comply with court directions, and attending 119 i. heywood, d. sammut and c. bradbury-jones, ‘a qualitative exploration of ‘thrivership’ among women who have experienced domestic violence and abuse: development of a new model’ (2019) 19:106 bmc women’s health, 1-15. 120 speed (n 30); kelly (n 86). reviewed article 108 hearings in a supportive capacity.121 whilst it is promising that such support is available to victims, it is nonetheless concerning that research has identified that some support workers lack a sufficient working understanding of the law and this compromises the quality of information provided to service users.122 this is particularly worrying in light of the introduction of dapos which may permit support workers to make applications for protection on behalf of victims.123 the data therefore identifies a need for better training for idvas and support workers to improve the quality of support for victims in family court proceedings. alongside this, there is a recognised need for legally accurate, accessible, and up-to-date materials for litigants in person themselves.124 drawing on these findings, the family clinicians in the slo held discussions with a local women’s organisation to identify their (and their service users’) legal needs and consider how these could be met. three needs were identified (1) training for idvas/support workers about the options available for victims of domestic abuse to pursue a civil claim for compensation against their perpetrator (2) training for idvas/support workers about preparing an effective application for protective injunctions and (3) written factsheets for victims of domestic abuse about the process 121 speed (n 30). 122 ibid. 123 the domestic abuse bill delegated powers memorandum suggests that the third parties who might be specified by the secretary of state as capable of applying for dapos without prior permission of the court include ‘local authorities, probation service providers, specialist domestic abuse advisers and specialist non-statutory support services (for example, refuge support staff). see home office, ministry of justice and ministry of housing, communities and local government, domestic abuse bill: delegated powers memorandum (home office, 2021), para 24. 124 trinder et al (n 5). reviewed article 109 of applying for a non-molestation order or occupation order which could be distributed to service users from the women’s organisation. whilst in this case there was an existing relationship between the clinicians and the support service, given that research supports a need for training within these organisations and the fact that third sector organisations often do not have the budget to pay for such training, there would be merit in developing new relationships to achieve this purpose. alternatively, given that only 38% of the participants to the civil and social justice panel survey claimed to understand their rights in the case of domestic abuse, there would also be value in clinical students offering training directly to women’s groups about their legal options.125 this project is currently ongoing and therefore the benefits and limitations of this model are still being experienced. to date, the students have prepared and delivered a training session on civil claims for compensation and the factsheets are being finalised. it is anticipated that training on preparing effective applications for protective injunctions will take place in the next academic year, which will likely coincide with the introduction of dapos. given that this work does not attract strict deadlines, the benefit of public legal education activities is that they can be delivered at any point in the academic calendar, either as a standalone project or to bolster other clinical activities. further, whilst the materials need to be approved by a clinician with 125 reported in l. wintersteiger, legal needs, legal capability and the role of public legal education: a report by law for life, the foundation for public legal education (law for life and the legal education foundation). reviewed article 110 a good knowledge and understanding of the law, this does not necessarily need to be a qualified practitioner. from a student perspective, public legal education activities allow students to work on behalf of vawg stakeholders who operate outside a legal setting. this is particularly valuable for those students who may be interested in pursuing a career in domestic abuse work but who do not wish to qualify as a solicitor. for those who do wish to have a career in law, it is common for junior practitioners to deliver continuing professional development training to external organisation and therefore such activities are reflective of work the students may be expected to undertake from an early stage in their career. the support service has provided feedback that the training which has been delivered to date has improved the knowledge of support workers and increased their capacity and confidence to support women in these claims. further, following durfee’s findings, it is anticipated that improving support workers’ ability to prepare an effective court application may improve victims’ prospects of securing protection.126 in relation to the factsheets, it is recognised that the provision of informative materials is not an adequate substitute for tailored legal advice and that ‘the support needs of litigants in person will not be met solely by relying upon written or online materials’.127 further, such materials are unlikely to assist litigants who experience language and/or literacy difficulties. this suggests that the provision of written materials may be most effective when used in conjunction with other models outlined 126 durfee (n 7). 127 trinder et al (n 5), 108. reviewed article 111 above, such as where clients receive tailored one-off advice about their case and are able to discuss some of the information contained in a factsheet. whilst invariably such an approach will not be possible in all cases, it would address concerns raised by academics that some litigants in person also need to have the opportunity to have verbal explanations or face-to-face support and that the effective use of written materials is also ‘dependent upon a baseline level of legal knowledge and understanding’.128 nonetheless, the use of written resources is not redundant. by providing information about the process of applying for a protective inunction written directly for a litigant in person audience, the factsheets will go some way to help address the ‘overwhelming need for more and better information for litigants in person at every stage of the court process’.129 further, given many litigants in person take a ‘reactive or passive approach to help-seeking’130 it is hoped that making the resources available at a venue where they may be attending for other therapeutic services (i.e., the women’s organisation) will assist their accessibility. preparing the materials as part of a clinical module can also provide some assurance about the quality of information. this can be achieved by including the university/clinic logo and, if applicable, a statement indicating that the information has been reviewed by a qualified practitioner. 128 moorhead and sefton (n 42), 257; trinder et al (n 5), 108. 129 trinder et al (n 5), 105. 130 ibid, 106. reviewed article 112 a note on models of dispute resolution outside the formal justice system academics have observed that ‘from their inception, clinics recognised that there are women for whom the legal system provides no benefit and, in fact, can be harmful’.131 some scholars have therefore queried whether clinics can play a role in supporting victims of domestic abuse to resolve their disputes away from the formal justice system. goodmark, for example, notes that ‘few clinics restrict themselves to litigating within the criminal or civil justice systems; most domestic violence clinics seek other forms of justice for their clients’.132 she argues that in comparison to practitioners and advocates in the vawg movement, law students are not ‘entrenched in the position that interventions like mediation are unsafe and, therefore, unsuitable for women subjected to abuse’ and are better able to think creatively to find innovative solutions for women.133 further, she posits that to develop responses to domestic abuse, clinics could ‘test and assess’ what role models of dispute resolution such as mediation, victim-offender dialogue and restorative justice could play in domestic violence cases ‘before attempts are made to implement such schemas more broadly’.134 none of the models pursued at northumbria university involve supporting women to seek protection through routes outside of the formal justice system. whilst 131 goodmark (n 58), 33. 132 ibid, 46. 133 ibid. 134 ibid. reviewed article 113 elsewhere the author has weighed up the potential merits of victims of domestic abuse entering into alternative dispute resolution in financial and children matters135 these approaches are simply untenable for victims seeking protection, where an order of the court is required to obtain legally enforceable protection. research consistently demonstrates that the threat of criminal action is a powerful means of securing compliance with an injunction, a finding which has led to breach of non-molestation orders and forthcoming dapos becoming a criminal offence.136 accordingly, supporting a victim to secure an agreement which has no legal standing through alternative dispute resolution would be a disservice to victims by leaving them with substantially weaker protection than is available through the courts. in relation to other family law disputes where domestic abuse is or has been prevalent, it remains the case that alternative dispute resolution is still widely discouraged in england and wales. the domestic abuse guidelines for prosecutors137 and the acpo guidance on restorative justice138, for example, provide that police policy does not support the use of restorative justice for domestic abuse in intimate partner cases due to the complex and protracted nature of domestic abuse offences. likewise, the family procedure rules 2010 seek to remove obstacles to victims accessing the courts, by providing an exemption for victims of domestic abuse (and those needing to issue 135 a. speed, ‘just-ish? an analysis of routes to justice in family law disputes in england and wales’ (2020) 52:3 the journal of legal pluralism and unofficial law, 276-307. 136 bates and hester (n 11). 137 crown prosecution service (cps), domestic abuse guidelines for prosecutors (cps; 29 september 2021). 138 association of chief police officers (acpo), restorative justice guidance and minimum standards (2011). reviewed article 114 proceedings urgently) to attend a preliminary mediation information and assessment meeting (miam) prior to starting court proceedings.139 in relation to victims who do not receive legal aid, court proceedings also remain a more cost-effective means of securing protection given that there is no court fee to apply for a protective injunction and litigants in person will not incur any costs of representation. this can be contrasted to mediation where the charge (outside a clinical setting) is around £140 per hour.140accordingly, whilst in other practice areas clinicians have recognised the need to reform clinical education to account for the fact that ‘litigation is no longer the default model of resolution of legal disputes’141 facilitating alternative dispute resolution with victims of domestic abuse in a clinical setting could give students a misleading impression of practice, which is counterintuitive to the educational aims of clinical education. it is recognised that outside a clinical setting, laspo has resulted in both a decline in the overall number of family law cases being mediated142 and an increase in cases being mediated which exhibit ‘higher conflict levels and/or more complex problems such as… where there are significant power imbalances between the parties’, because of pressures on mediators not to screen out cases.143 barlow notes that by ‘withdrawing legal aid for (prior) legal advice (as well as representation at 139 family procedure rules 2010, rule 3.8. 140 family mediation council, family mediation council survey results (fmc; 2019). 141 k. tokarz and a. appell, ‘introduction: new directions in adr and clinical legal education’ (2010) 34 washington university journal of law and policy, 1-9; k. emery, ‘assisting indigent families in conflict: a pro bono test drive for a family alternative dispute resolution (adr) clinic (2010) washington university journal of law and policy, 239-259. 142 a. barlow, ‘rising to the post-laspso challenge: how should mediation respond?’ (2017) 39:2 journal of social welfare and family law, 203-222. 143 ibid, 205. reviewed article 115 court) and making mediation the only legally aided out of court dispute resolution option, those who could not pay were effectively given the stark choice of mediating an agreement or representing themselves in court’.144 she therefore describes that mediation was ‘likely to become a hobson’s choice for many, a constraint which in itself often militates against a successful mediated outcome’.145 accordingly, it is suggested that the use of mediation within the current landscape is not indicative of a progressive or creative approach to supporting victims, but is instead the product of a family justice system at breaking point where desperate attempts are being made to divert cases elsewhere.146 concluding thoughts by examining the various models through which the slo supports victims of domestic abuse, this paper has sought to highlight how clinical legal education can be an effective tool for improving the accessibility of protection orders. the analysis demonstrates that whilst the number of law school clinics offering domestic abuse services is still low, such services can be incorporated into most clinical settings, whether through more resource intensive models like case work and policy projects or in less onerous models such as public legal education activities. further, the analysis suggests that the impact of clinical activities in improving the accessibility of 144 ibid, 204. 145 ibid, 205. 146 speed (n 135). reviewed article 116 protective orders can be evidenced in various ways, including through a reduction in the numbers of litigants in person in applications for protection (even if not in a way that is statistically significant), in building the capacity of others to support victims in proceedings (and with the introduction of dapos, to potentially make applications on their behalf) and in making evidenced-based proposals to make the legal process for securing protection more victim-focussed. just as significantly, however, the literature also suggests that by exposing clinical students to domestic abuse work at an early stage in their career, future practitioners will enter practice with a strong understanding about the dynamics of domestic abuse and a commitment to supporting clients in a way that is client-centered and trauma-informed. these findings, it is argued, provide a compelling case for practitioners to consider extending their clinical offering and develop the presence of domestic abuse in clinics in the uk. ijcle vol 23 no 3 editorial committed to examining our roles: clinic for communities and students elaine hall northumbria university, uk elaine.hall@northumbria.ac.uk clinic has so many possibilities and while this is enticing and engaging for academics and students alike, it is clear that a naïve commitment to clinic can lead to unintended problems when the needs of various stakeholders come into conflict. all the papers in this edition contribute to the growing sophistication of our clinic discourse, critically examining the intents, processes and positions of the actors involved. we begin with a perspective from sociology: diana pan’s research enables us to explore the student experience of work and identity. this is not a paper specifically about clinic, nevertheless it offers us a wider view and her rich qualitative data and theoretical framing will have an impact on how we understand our students’ engagement with clinic. the needs of communities are both desperately sought and difficult to acquire: shristi banerjee, raveena rao kallakuru, ambedkar bhavan, yamini kumar, maithili pai, nirmal kumar upreti and david tushaus have a rich account of research design, community engagement and collaborative understanding of domestic violence across contexts that reflects both on practical and ethical issues. in understanding what we do and why we do it, sometimes it is helpful to return to the beginning and in this issue we have both a narrative and an analysis based in south africa from donald nicholson which teases out a number of elements in clinic design that could be, have been but perhaps, need not be in conflict with one another. this piece will be a reference point for our work on the intent and purpose of clinic and i happily foresee what the late caroline aherne dubbed ‘heated debate’. as a companion to this, rebecca grimes provides a vivid report from the ed o’brien memorial conference in south africa, where the latest in streetlaw from across the world was showcased. this will serve to whet your appetite for our practice reports: michal urban and hana draslarová bring us up to date with a long-running collaboration with the roma community in the czech republic and farzana akter indicates the impact of influential work from india to bangladesh. my usual plug for upcoming events in the cle world: · in october the european network for clinical legal education (encle) will host its 4th annual conference on 27th and 28th october 2016 (2 days conference) at the faculty of law, university of valencia, valencia (spain). the conference, entitled “clinical legal education and access to justice for all: from asylum seekers to excluded communities”, aims to bring clinicians together from across europe to discuss all aspects of teaching and learning, learn from each other and share best practices on how to improve the access to justice to, in particular, vulnerable persons, through clinical legal education. the encle conference will be as usual open to all kinds of cle activity focuses. however, given the on-going influx of refugees in europe and the fact that more and more law clinics are focusing their work on the support to refugees and asylum seekers, encle is particularly encouraging papers dealing with cle and access to justice for refugees and asylum seekers. proposals for either paper presentations or workshops should be sent to encle.info@gmail.com by 31st august 2016. meanwhile i’m heading off to the ijcle conference with the association for canadian clinical legal education (accle). the conference, which will be hosted by the university of toronto from 10-12 july, is entitled the risks and rewards of clinic and encourages participants to reflect on the balance between risk and reward for all the stakeholders in clinic. we have a fantastic range of papers, seminars and symposia and i’m delighted to announce that we have managed to secure sarah buhler and adrian evans as keynote speakers. papers from this conference will be available on the legal education and professional skills research group website www.northumbria.ac.uk/leaps . this will be followed by the international legal ethics conference vii (ilec vii), which fordham law school will host in new york city on july 14-16, 2016 focusing on legal education, ethics, technology, regulation, globalization and rule of law (www.law.fordham.edu/ilec2016). i look forward to catching up with many of you in the next week! 4 38 international journal of clinical legal education issue 17 legal clinics and professional skills development in nigeria s.k mokidi and c.a. agbebaku* introduction the educational sector has a direct bearing on the social, economic, political and scientific development of a nation hence there have been increased anxieties, in recent times, about the deteriorating state of nigeria’s educational system� the growing concerns stem from the quality of our university graduates, which has become less than satisfactory and the law graduates are no exception� thus there is a growing demand for reforms not only in the training of lawyers but of the entire educational system in nigeria� the declining professional skills of lawyers has taken an alarming trend over the last decade with the result that, clients most often do not get value for money paid for legal services and society does not also feel the much needed impact of lawyers� the present situation is attributed to a number of factors ranging from inadequate curriculum, inadequate manpower and training facilities both in the universities and the nigerian law school, to unfavourable government educational policies� the challenges confronting the 21st century nigerian lawyer are growing every day� some fifty years ago not many people in nigeria knew about the computer or knew about deoxyribonucleic acid (dna) test or how to apply it in evidence� today the computer is a necessary household facility in nigeria; today we are faced with the problem of how to apply electronic generated evidence� the modern lawyer must be relevant to his1 society and so should be concerned not only about representing his client in court and making money for himself but with how the law can be used to resolve disputes peacefully, redress injustice and help in the emancipation and social wellbeing of the less privileged in his society� there appears to be a consensus of opinion among nigerians that the present method of training lawyers has become inadequate and that if the modern nigerian lawyer must confront these challenges, there is a need to overhaul the entire legal system particularly the method of training� bayo ojo, writing on the need to reform legal education said “i would like to reiterate that there is urgent need to reform the whole system of producing lawyers in the country…for the past four * lecturers, faculty of law ambrose alli university ekpoma, nigeria� this paper was first delivered at the international journal of clinical legal education conference in newcastle upon tyne, july 2010� 1 all references in this piece indicating the masculine gender are intended to refer equally to the feminine unless the context clearly indicates otherwise 39 decades or so, there had been no review of legal education programme inspite of the fact that the country has undergone profound changes”2 some opinion writers have advocated increase in the length of training, and continuous legal education as antidotes to the problem of declining legal skills while others suggest a review of the entire legal education curriculum to reflect the changing face of the legal profession� one of the advocates of a review of the legal curriculum and the teaching methodology, in our universities is ernest ojukwu3� this paper, synthesizes the various views that have been articulated on how to reform legal education in nigeria with the objective of developing the professional skills of lawyers at a formative stage� it traces the history of the legal profession in the country and the society’s expectation of lawyers� drawing from our experience on the students’ ‘law offices’ in our university, this paper posits that introduction of the clinical method of training at the academic stage of our legal education can help to arrest the current unacceptable trend of declining skills� brief history of legal profession in nigeria due to nigeria’s historical nexus with britain, the legal profession in nigeria is historically connected with the english legal system and legal profession� before, the advent of colonial rule, the various ethnic nationalities that existed in the territory now known as nigeria had their traditional methods of dispute resolution and maintenance of law and order� with the annexation of lagos and the introduction of colonial rule all that changed� in 1861 lagos become a british colony� until the amalgamation of 1914, nigeria consisted of the northern and southern protectorates and the colony of lagos� when nigeria came under british tutelage with the attendant social-economic changes, the british government needed to establish and assert its authority in order to protect its commercial interest� the result was the introduction of the english common law with its methods of dispute resolution and adjudication, which were alien to the indigenous people� the laws applied were meant to secure economic and commercial advantages for the colonial power� this no doubt accounts for why the first set of indigenous lawyers in nigeria came from the early coastal settlements, which were mainly trade centres4 and the predominance of foreigners on the bench, in the preindependence era5� before the attainment of nigeria’s independence in 1960, there existed no institutions for the training of lawyers in the country and nigerians had to travel abroad, particularly england for legal training� in england, they were trained either as barrister or solicitors� a three-month postcall practical course and one year pupilage in a law chambers was required for a barrister who 2 the punch, october 2, 2006 p�42� bayo ojo was a former president of the nigerian bar association and former attorney general of the federal republic of nigeria� similarly, in vanguard, 12 may, 2006 p�34 while writing on the need to shift focus from litigation to lawyer’s development he opined that the legal education curriculum either in the university or law school is no longer broad and good enough� 3 ernest ojukwu is the deputy director of the nigerian law school, enugu campus and the president network of university legal aid institutions (nulai nigeria)� 4 balogun h� aderinsola, “upsurge of lawyers in the last two decades: challenges, problems and solutions” being a paper delivered at the 1999 nigerian bar association annual conference held at kwara hotel ilorin, nigeria� 5 kehinde sofola san, keynote address at the nigerian bar association 1999 annual conference, ilorin, nigeria 39 40 international journal of clinical legal education issue 17 intended to practice in england, but it was not a requirement for lawyers who did not intend to practice in england� on coming home, the english trained lawyer enrolled at the supreme court and practiced as barrister and solicitor� it is on record that the first indigenous lawyer to enroll at the supreme court was christopher alexander sapara williams� the english trained lawyer who then came back home to practice law had some deficiencies: 1� while in england he studied as either a barrister or solicitor but on coming home he was faced with a fused profession� 2� in england he studied the english legal system and constitutional law but on coming home he found that nigeria was a federation� he had no knowledge of nigerian customary law, which is an integral part of our legal system� 3� until 1967 there were no mandatory courses of lectures for aspirants and a university degree was not also required and as earlier stated they were not required to do the one year mandatory attachment to chambers for those who wished to practice in england� it was as a result of these deficiencies that the e�i�g� unsworth committee was set up in april 1959 to deliberate on future of the nigerian legal profession and made recommendations� the committee, among other things, recommended the establishment of the nigerian law school at lagos for practical training and examinations� following the enactment of the legal education act of 1962 the nigerian law school was established in 1962 in lagos and it took off in january 1963 with an initial eight students� as earlier observed, in the colonial era there were no formal institutions for the training of lawyers� in 1961, the first law faculty was established at the university of nsukka and this was followed by the establishment of law faculties at the university of lfe (now obafemi awolowo university) in 1961, ahmadu bello university zaria in 1962 and the university of lagos in 1965� with the establishment of these pioneer law faculties and the nigerian law school the stage was set for the training of lawyers in nigeria� do we need a reform of legal education? the nigerian universities commission (nuc) and the council for legal education (‘council’) control legal education in nigeria and it is in two stages� the first stage is the academic training at university while the second is the vocational training at the nigerian law school� the academic stage involves the acquisition of university education leading to the award of bachelor of laws (ll�b) degree�6 the ll�b is a five-year program for those students who entered university through the university matriculation examination (ume) and four years for those who entered through the direct entry�7 at the academic stage the focus is on stuffing the student with legal principles and basic tools of 6 to ensure minimum standards the nuc designs a uniform curriculum, which the council approves for all faculties of law� 7 to qualify for admission by ume to study law the candidate must possess a minimum of the senior secondary school certificate or its equivalent with at least five credits at a sitting; for the direct entry he must have a minimum of gce ‘advanced’ level or its equivalent� prior to the nuc report on minimum academic standard for legal education from 1990/1991 academic session the ll�b programme was four years for those who entered by ume and three years for direct entry� 41 legal analysis� according to nuc in its minimum academic standards for law “academic legal education should therefore act, first, as a stimulus to stir the student into the critical analysis and examination of the prevailing social, economic and political systems of his community and, secondly, as an intellectual exercise aimed at studying and assessing the operation, efficacy and relevance of various rules of law in society�” the above encapsulates the basic objectives of the ll�b programme of the various law faculties in nigeria� in line with the objectives and in accordance with the nuc prescribed curriculum, all the law faculties in nigeria must teach twelve core courseslaw of contract, criminal law, legal system, constitutional law, torts, commercial law, equity and trust, evidence, land law, company law, jurisprudence, legal methodsand a compulsory long essay� there are also compulsory non-law courses like use of english, history and philosophy of science, logic and philosophic thoughts, nigerian people and culture, and introduction to computer application� in addition, there are optional law and non-law courses from which the law student is expected to choose to make up the required credit load�8 as submitted by onalaja, the curriculum is sufficient and capable of delivering a sound academic legal education because this stage is concerned primarily with the search for principles and not to teach students all the knowledge that they would require to practice”9 on successful completion of the ll�b programme, the law graduate proceeds to the second stage, which is the one-year vocational training at nigerian law school� the training at the nigerian law school is expected to equip the student with requisite practice skills to meet the needs of a fused profession and to effectively function in a globalised world� towards this end, procedural courses are taught in the law school� the courses are legal drafting and conveyance, civil procedure, criminal procedure, company law, commercial practice, law of evidence and general paper which consists of professional ethics, law office management, legal skills and solicitor’s accounts� at the end of the course and on passing the prescribed examination, the council of legal education issues the law graduate with a qualifying certificate� he is then called to the nigerian bar, if he is certified and found fit and proper by the body of benchers� we have seen the circumstances that led to the setting up of e�i�g� unsworth’s committee that recommended the establishment of the law school� the unsworth report was to serve as a blue print for tackling the challenges of the legal profession then, and for shaping the future of the nigerian legal profession� the question is whether that report of 1959 can still serve the needs of the legal profession for the 21st century? aderinsola is of the opinion that it cannot�10 ernest ojukwu opines that although the “nigerian law school is supposed to be a school of practical studies, but with no properly formulated objective it is impossible to determine if its outcomes are meeting any set goals�”11 there is a general consensus that there is a sharp decline in basic professional skills of entrants in 8 the optional law courses include customary law, intellectual property law, revenue and taxation law, oil and gas law, labour law, administrative law, law of banking and insurance, international law, legal drafting and conveyance and in some cases procedural laws like civil and criminal procedure� 9 onalaja m�o�, “problems of legal education in nigeria” in the guardian december 13, 2005 p�68 10 aderinsola, supra note 3 11 ojukwu ernest, “crisis of legal education in nigeria: need for reform or attitudinal change? in niki tobi ed� a living judicial legend: essays in honour of justice karibi whyte (con) ( lagos, florence & lambard, 2006) p� 249 at 252� legal clinics and professional skills development in nigeria international journal of clinical legal education issue 17 the legal profession in recent years, and this is glaring in their performance in court, preparation of legal documents and offering of professional advice, ethics etc� yet the quality of justice we get depends on the quality of lawyers we produce� we must concede, as observed by justice m�m� akanbi (rtd) at the 1999 nba annual conference in ilorin, nigeria, that just as the training of a child starts from the cradle in the home and the schools he attends in his formative years, so does the training of a lawyer and acquisition of professional skills start from the university and the law school�12 the patent deficiencies in some of our young lawyers are directly related to their training both at academic stage and the law school� at the university in the majority of cases, no attention is ever paid to the teaching of practical skills because it is generally believed that ‘academic legal education is concerned primarily with the search for principles and practical training should be left for law school� this is not just the only problem� the major problem is that the much of the quality of teaching is diminishing and some of it is grossly inadequate� it is either that ‘handouts’ prepared in form of lecture notes are sold to students or the teaching is merely reduced to dictating of notes copied obviously from books without any attempt to update them or both� the result therefore, is that there is little or no time for meaningful interaction between the students and the teachers�13 whereas in times past, tutorial classes were reserved for interactive engagement between the teacher and the students this is hardly the case today� another problem is that teaching at the law faculties of our universities is still restricted to the traditional subjects, which limits the student’s scope� in today’s globalised world the lawyer is more exposed to diverse societal challenges than our great forebears� today much attention is being given to human right issues; attention is shifting to alternative method of dispute resolution, information technology, e-commerce, e-law, and internet law etc� these are emerging trends and specialist areas, which ought to be introduced in our law faculties rather than slavish adherence to the traditional subjects� clement akpamgbo a former attorney general of nigeria seems to have echoed this view when he said: “tomorrow’s lawyer, if he to be relevant cannot just be a lawyer familiar with rules of procedure of our courts with smattering knowledge of substantive law… he should be familiar with the various regional economic treaties and conventions and their implication for trade and business in the african region”�14 the law school that is assigned the role of practical training of the lawyer has not fared better� what has emerged over the years is that the teaching method is not remarkably different from what is obtainable in the universities� there are hardly moot/mock trials and only a few students participate, if they are held at all� the tutorial classes are conducted at the approach of the examinations and tailored towards the students passing the prescribed examinations� in the course of training at the law school students are sent on law offices and courts attachment to familiarize themselves with general office work, legal practice, legal research and appreciate the ethics of the profession thus exposing them to practical skills but each of these attachments do not normally exceed six weeks� experience has shown that students see the period as an opportunity to read the voluminous notes they received in school and, in the absence of close monitoring by the law school, the students do not take the attachments seriously� the result is that most students 12 a paper presented at the 1999 nba conference held at ilorin, nigeria 13 ojukwu ernest, supra note 10� 14 address at the law teacher’s conference, on 27th april, 1992, at ogun state university, ago-iwoye� 42 gain nothing from the exercise� the lawyer and societal challenges law is an instrument of social engineering� indeed, the legal profession plays a dominant role in any society because all human activities revolve within a legal framework� lawyers are known to have and still make tremendous contributions to the social, political and economical development of their societies� as observed by bayo ojo, lawyers in the united states, for instance, were in the forefront of the struggle for constitutionalism and feature prominently in the chronicles of the american revolution15� emphasizing the importance of lawyers in the society newton d, in an address at the columbia university in 1993, stated: “one of my deepest conviction is that so far as the institutional progress of a people is concerned its salvation lies in the hands of the profession of the bar”16 indeed, the public repose much confidence in the lawyer as the ‘learned man’ to help advise government, commerce, industry and private citizen; he is seen as a defender of human rights and promoter of the rule of law� olisa agbakoba, former president of the nigerian bar association captured the challenges facing the modern lawyer in nigeria when he said: “our great forbears in this profession did not have to contend with the challenging realities of the internet and globalization, they lived and practiced our profession before deregulation economic and political reforms, and fast spaced transnational environment that we must live with in today’s nigeria� our practice environment changes around us by the minute� the challenges that confront us as citizens and professionals are evolving rapidly� if we are to approach anywhere close to the respect that our great professional forbears commanded in their time, then we have to go the extra mile to renew our profession and build a 21st century bar for the nigeria of tomorrow�”17 if the institutional progress of a people depends so much on the lawyer then he must be a part of the society he lives and understand it if he is to be able to participate in its development and the economic and social well being of its members� the modern lawyer must be sufficiently equipped in knowledge and skill to assume his role and it is submitted that the training of the nigerian lawyer must go beyond the traditional functions and incorporate those areas that will bring social changes� otherwise, as suggested by karibi-white such a training is bound to be myopic and likely to deal with societal problems in a truncated manner18� what we have tried to do so far in this rough historical excursion is to show why the existing legal curriculum and teaching method can no longer meet the needs of the 21st century legal profession� to continue to maintain it will merely lead to producing what sam amadi referred to as lawyers “simply trained to function as bricklayers whose mind [is] the ‘job’ of adding one block after another, without a clear vision of what edifice is being constructed”19� 15 bayo ojo supra note 1 16 cited in onalaja m�o�, supra note 8 17 agbakoba o�, “re-imagining the 21st century nigerian lawyer” in vanguard, 6 october, 2006 p�44 18 karibi-whyte jsc cited in nuhu mohammed jamo, “upsurge of lawyers in the last two decades: challenges, problems and solutions being paper presented at 1999 nba annual conference held in ilorin 19 amadi s, legal education, public interest lawyering and social justice in nigerian bar journal vol 2 no�2 2004 legal clinics and professional skills development in nigeria 43 44 international journal of clinical legal education issue 17 legal clinics and professional skills a good cause also needs a good lawyer� a good advocate can deploy his good skills to turn an otherwise bad case to good against a weak advocate� the impact of globalisation is changing the face of legal practice and nigeria as an emerging democracy must begin to think of what role it wants lawyers to play in its political, social, cultural and economic development� today, issues like high-jacking, kidnapping, piracy, delay in administration of justice, human rights abuses e�t�c, stare us in the face� an understanding of these problems can help us reshape and redefine the structure and contents of our legal education� faced with these numerous challenges, the lawyer should have the requisite skills to function effectively� it is generally agreed that the legal curriculum is such that the university training is theoretical and not practice oriented, yet good knowledge of principles is not sufficient to prepare the students for today’s legal practice when eventually called to bar� this underscores the need for introduction of a practice oriented method of training at the various faculties of law because a lawyer must be well equipped to apply knowledge of principles to solve legal problem� legal skills refer to the ability to apply knowledge of law to solve legal problems� the basic skills that a lawyer requires are in the area of advocacy, legal drafting, negotiations, legal research, management and verbal communication� to understand the role law clinics will play in these, we must consider the goals of clinical legal education� clinical education requires the student to learn by doing; it therefore requires his active participation� the objective is to train lawyers who will be highly skilled, effective and responsible in whatever capacity they find themselves� through the student’s active participation in the process of learning, he is exposed not only to legal skills but also to the essential values of the legal profession: provision of competent representation, promotion of justice, fairness and morality; continuing improvement of the profession, and professional self development�20 at this stage a brief consideration of the activities of students’ ‘law offices’ in the faculty of law, ambrose alli university nigeria will, by way of analogy, help us understand how law clinics would help in skills development�21 in the faculty of law students are encouraged to join any of the student operated ‘law offices’ and ‘counsel’ in these offices ‘practice’ before ‘courts’ in the university22� the students take on live cases affecting students and in the process are involved in extensive research, drafting, and legal representation in court� where the matter is purely civil and the need for litigation arises, pleadings may be filed and the students may consider it necessary to consult with their staff adviser or legal practitioners�23 decisions of the ‘courts,’ in cases affecting law students only, are transmitted to faculty of law management for enforcement while those involving other students are sent to university management through the dean of students’ affairs 20 margaret martin barry et al, clinical education for this millennium: the third wave, 7 clinical l� rev 1, 13 (fall 2000) 21 student ‘law offices’ which operate only in the faculty of law are neither law clinics nor products of law clinic in the faculty� they are formed and managed by law students but are required to be registered with the law students association (lawsa)� they are named after notable legal practitioners and jurists� 22 the courts are the lawsa jural court, the students union government high court and the supreme court, which are manned by students except that the dean of law is the chief justice of the supreme court� 23 they also provide legal representation in matters like violation of dress code which are considered as quasi criminal and prosecuted by the lawsa attorney general 44 for enforcement24� unfortunately, because the management of these ‘law offices’ is left in the hands of students much of the emphasis is on advocacy such that little attention is paid to developing other legal skills� again, because membership is voluntary and no academic credit is attached the level of participation by students is low� however, experience has shown that students who are members of these ‘law offices’ form the nucleus of those that do represent the faculty in moot trial competitions� the success the faculty has recorded in national and international competitions can be attributed to the skills gained from the students’ participation in these ‘law offices’� the experience gained at this formative stage has also helped a good number of them in legal practice; some have turned out to be notable human rights crusaders25� we have also found that since the establishment of the faculty law clinic a greater number of our student clinicians, who are enthusiastic about the programme, are members of these students’ law offices notwithstanding the fact that the law clinic is open to all students in year three and four who offer legal practice as a course�26 the point being made here is that drawing from the gains of these campus law offices we can safely say that there is a need to introduce some form of practical training at the university stage in the training of our lawyers� indeed this is the objective of setting up law clinics in the universities– expose students in their early life to practical training and experience about the justice delivery system� the training of our lawyers should focus on achieving public good� our personal experience reveals that a good number of those who aspire to study law in nigeria, do so because of the notion that a lawyer is influential and ‘a big man’ in the society and not because of any commitment to development of his society through promotion of rule of law, protection of human rights or service to the less privileged in the society� the introduction of clinical legal education in law faculties will change this attitude and lay the foundation for law students to carry with them throughout their professional careers as attorneys a great sense of professional commitment to the ethics and values of public service�27 the recent experience from the prison visits undertaken by the clinicians in the faculty reveals that with proper training we can have lawyers whose main focus will not only be litigation but service delivery to their community28� lawyer’s skills are acquired through practical experience and that experience can as well start at the universities rather than wait for the one-year vocational training at the nigerian law school� law students should have that opportunity of familiarizing themselves with general office work, 24 the “cases” are usually disputes emanating from union and associations’ elections, violation of dress code, issues bordering the running of the students’ union government and other matters, whether contractual or tortious between students� they do not accept briefs involving students and non-students� 25 it is on record that the faculty of law ambrose alli university participated at the all african human rights moot court competition 1999, won justice m�m� akanbi’s interfaculty debate 2002, james iboris’ cup for advocacy 2002, wole olufon clasfon best advocate prize five consecutive times, national championships of the phillips c� jessup international law moot court competition 2003, 2004 and 2005, and represented nigeria in world championship in washington, d�c april 2005 and 2006 26 legal practice 1 and legal practice 2 are compulsory elective for law students in year 3 and 4 respectively� 27 see yemi akinseye – george, “legal aid and university law clinics in nigeria” in nigerian bar journal vol 2 no� 2 (2004) 173 at 175� 28 the enthusiasm displayed by the students during the visits and follows up amply demonstrated their commitment to access to justice for the less privileged� legal clinics and professional skills development in nigeria 45 46 international journal of clinical legal education issue 17 legal practice, legal research, and inculcate the ethics of the legal profession�29 herein lies the justification for the introduction of clinical education in our faculties� law clinics will fill the lacuna in the legal curriculum for the following reasons: • law clinics provide legal services to the poor who would not ordinarily have been able to access justice� through contact with clients, the participants are able to internalise the value of public services�30 • by meeting with and relating to people of differing backgrounds and perspectives, participants are able to understand their viewpoints and beliefs particularly in a multi-ethnic and cultural society like nigeria� this will help the lawyer in actual practice� • participation in law clinics enables the law student to inculcate the spirit of legal research thereby constantly updating his knowledge of law� • clinicians, through full involvement in the management of the clinics are able to acquire basic skills in drafting and law office management� • serving as paralegals will integrate the students into the real workings of the legal profession�31 • interactive teaching methodology enables student to have a better understanding of the subject� again by observing and experiencing it the student is placed in a better position to remember what he was taught� envisaged problems there is no gainsaying that clinical education offers the students a unique opportunity to learn and develop practical skills� however, the introduction of clinical education in the faculties of law in nigerian universities will meet with certain challenges� a law clinic may be the type that deals with ‘live – client’ or moot/ simulation clinics; it may even be a specialized one� although each of these has its distinct features, they share certain characteristics� the characteristics include the use of the interactive method of teaching and supervision by a clinical instructor who is an experienced practitioner� first, a ‘live-client’ clinic is likely to face resistance from qualified legal practitioners who will see the clinicians as encroaching on their territory� the functions of the live-client clinic include interviewing and counseling of clients, mediation and where necessary preparation of court processes under the supervision of a qualified legal practitioner� in some jurisdictions it may involve actual legal representation in courts� in nigeria, a law student cannot represent the client in court and cannot frank any legal document for filing in court� the reason is that only persons whose names are on the legal practitioners’ role can practice as a barristers and solicitors in nigeria32� 29 see national needs assessment for the justice sector, nba programme unit (nba 2007) 30 legal clinics: serving people, improving justice, manual of open society justice initiative p� 4 31 see national needs assessment for the justice sector, nba programme unit (nba 2007) 22 32 see section 1 of the legal practitioners act chapter l11 lfn 2004� there is even the raging controversy on the issue of courtroom attendance by law teachers in view of sections 172 and 209 of the 1999 constitution of the federal republic of nigeria� see particularly giwa a�o�, “law lecturers and courtroom attendance” in nigeria bar journal vol� 1 n0� 4 (2003) 505 and taiwo, e�a� “public officers and private practice: the legal issues arising under the 1999 constitution of nigeria” in nigerian bar journal vol�3 no�2 (2005) 26� 46 another challenge is how to overcome the traditional methods of teaching that our law teachers are used to� this will involve retraining of our teachers or employing non-academic professionals with the attendant financial implications� according to sam amadi33 “if we intend to run effective clinical programs in nigeria… we should be willing to retain the services of non-academic professionals who have special and consummate skills to expose students to the ‘practical’ of public interest lawyering in their legal education”�34 it is doubtful whether the universities are prepared to shoulder the additional financial burden of employing non-academic professionals� implementation of clinical legal education requires some basic infrastructures� one of the reasons for the falling standard of university education in nigeria is lack of adequate infrastructures� for a sustainable clinical education there must be provision of audio-visual aids, adequate classrooms and furniture, information technology and adequate teaching aids including textbooks� one major problem nigerian public universities are facing is inadequate funding and the internally generated revenue will be grossly inadequate to meet these essential requirements� the present legal curriculum is inadequate and does not accommodate most of the practice-based subjects� for an effective clinical programme, there will be the need for curriculum development which shall include procedural courses, moot trials, research methodology and also accommodate emerging trends and specialist areas like alternative dispute resolution, mediation and conciliation, information technology etc� conclusion we proceeded on the premise that the declining skills of lawyers in nigeria is attributed mainly to the training method� we tried to argue that the practice of law is becoming globalised and new issues are emerging that pose a challenge to the 21st century lawyer� the 21st century lawyer must not be estranged from his community and must be prepared to undertake public service and thereby foster professionalism� we submitted that the skills of the modern lawyer can be developed at the formative stage and clinical legal education will enable the lawyer to acquire the requisite skills early in life to face the challenges of the future� though we conceded that the introduction of clinical legal education in nigerian law faculties will meet with some challenges, it is submitted that they are not insurmountable� 33 amadi sam supra at 156 34 in view of the restrictions on private practice by lawyers in public service, it is even doubtful whether the academic lawyer who supervises the students can impact the much-needed skills since he is not involved in everyday practice� legal clinics and professional skills development in nigeria 47 48 international journal of clinical legal education issue 17 how should we assess interviewing and counseling skills?1 lawrence m. grosberg introduction. the need to teach interviewing and counseling skills has long been established among clinical legal educators.2 even among our non-clinical colleagues, these skills are recognized as integral to competent lawyering.3 while there remains considerable difference of opinion within the united states as to whether teaching such skills should be in a required course or simply be available as an elective, there is no doubt that a twenty-first century american law school must include the teaching of these skills in its curricular array.4 how should we assess interviewing and counseling skills? 57 lawrence m. grosberg, professor of law, new york law school 1 this essay is derived from a talk given at the journal's conference at edinburgh in july, 2004. while it is written from the perspective of an american clinical teacher, the underlying skills concepts increasingly are reflected in clinical education programs around the globe. 2 see robert m. bastress & joseph d. harbaugh, interviewing, counseling, and negotiating: skills for effective representation (1990); gary bellow & bea moulton, the lawyering process: materials for clinical instruction in advocacy (1978); david a. binder, paul bergman, susan c. price & paul r. tremblay, lawyers as counselors: a client-centered approach (2d ed. 2004); stefan h. krieger & richard k. neumann, jr., essential lawyering skills (2nd ed. 2003). philip g. schrag & michael meltsner, public interest advocacy: materials for clinical legal education (1974). 3 see jay m. feinman, "simulations: an introduction", 45 j. legal educ. 469 (1995); cf. american bar association section of legal education and admissions to the bar, task force on law schools and the profession: narrowing the gap, legal education and professional developmentan educational continuum (1992) [hereinafter maccrate report] (report on the essential components of competent lawyering). 4 the aba accreditation standards do not now require that all students take clinics or interpersonal skills courses. they do require, however, that every school have a clinical and skills program. see, e.g., richard a. matasar, "skills and values education: debate about the continuum continues", 46 n.y.l. sch. l. rev. 395 (2002); robert maccrate, "yesterday, today and tomorrow: building the continuum of legal education & professional development", 10 clinical l. rev. 805 (2003). recent amendments to aba accreditation standard 302 may add to the pressures on law schools to require such interpersonal skills learning. but it is far from certain whether the changes in the standards will result in any significant increase in skills teaching, or indeed, in any meaningful curricular reform. see john sebert (june 8, 2004). http://www.abanet.org/legaled/standards/standardsd ocuments/standardsreview302305commentmemo.d oc. accompanying the teaching of these skills has been the challenge of evaluating the student performance of such skills. clinicians knew from the outset that assessment would be qualitatively different from the evaluation methods used for doctrinal teaching.5 we also knew there would be two fundamentally different functions of clinical assessments: the traditional grading or sorting purpose and the feedback/constructive learning function. it is the latter which is and always has been at the core of clinical teaching.6 in the competitive world of law students, however, as with anything that is taught, the formal assessment or grading label remains crucial.7 if it is not tested and graded, it will be devalued by the students.8 the question of how best to do that remains the challenge with which we are grappling.9 a central aspect of assessment is the learning goal. what are we trying to teach? what is the ideal outcome we would like a student to achieve? it is critical that the method of assessment be directly correlated with those learning objectives. an evaluation is valid if it accurately measures the student in terms of the instructional objectives.10 to state the obvious, if we want the student to learn how to draft advocacy briefs, we do not assess by conducting an oral exam with the student. and then, there is the level of proficiency. are we talking about an introductory or very elementary level with respect to the skill involved? or, is a much more advanced level of learning the desired goal? thus, in discussing alternative methods of assessing interviewing and counseling skills, we need to be clear about what our objectives are. different methods of evaluation may be more or less appropriate depending on the desired outcome. thus, clinical evaluations of interviewing or counseling skills could include assessing the examinee's knowledge of interviewing models or theories, the method of preparation, the actual performance of the skill, a self-critique of her or his performance, the resolution of ethical dilemmas or all of the above.11 this paper first briefly describes the structure of legal education in the united states (insofar as clinical and skills teaching is concerned) and the almost total absence of any bar admission training or apprenticeship requirements. if the law schools are not required to fully train all future lawyers 58 journal of clinical legal education august 2006 5 student performance and critique assessment were central to skills teaching. e.g.: "intellectual mastery is not sufficient .... the goals must include both the student's ability to understand and ability to perform effectively."... "it is essential that each student have at least one opportunity to be critiqued in conducting a full interview". david a. binder & susan c. price, instructor's manual for legal interviewing and counseling, 4 and 22 (1979). 6 see, e.g.,robert dinerstein, "report of the committee on the future of the in-house clinic", 42 j. legal educ. 508 (1992); peter toll hoffman, "clinical course design and the supervisory process", 1982 ariz. st. l.j. 277, 292 (1982); david f. chavkin, "matchmaker, matchmaker: student collaboration in clinical programs", 1 clinical l.rev. 199, 202 (1994); kenneth r. kreiling, "clinical education and lawyer competency: the process of learning to learn from experience through properly structured clinical supervision", 40 md. l. rev. 284, 330-334 (1981). 7 stacy l. brustin & david chavkin, "testing the grades: evaluating grading models in clinical legal education", 3 clinical l. rev. 299 (1997) ( a report on a survey of students as to whether they prefer a pass/fail grade or the usual number or letter grades, together with a recommendation for grades with an option for pass/fail). 8 see steven friedland, "a critical inquiry into the traditional uses of law school evaluation", 23 pace l.rev. 147, 171 (2002); brustin & chavkin, supra note 7, at 306; lawrence m. grosberg, "should we test for interpersonal lawyering skills?", 2 clinical l. rev. 349, 351 (1996 ). 9 the broader subject of law school testing generally, is of course, worthy of re-examination, and as has been observed, "has been widely overlooked", friedland, supra note 8, at 149. 10 michael josephson, learning and evaluation in law school, volume 1, principles of testing and grading, learning theory and instructional objectives at 8, submitted to association of american law schools' annual meeting, january, 1984. 11 roy stuckey, assessing law student learning in clinical courses: issues for discussion, slide 6 (power point presentation, 4th international clinical education journal conference, july 14, 2006) and the bar admission authorities likewise disavow responsibility for doing so, should clinical law professors assume the burden?12 i then go on to discuss the primary clinical evaluation technique of directly observing the student's performance, sometimes referred to as the gold standard method of assessment. against the backdrop of the assertion that it is beneficial to use multiple methods of assessment, i then describe the several methods i have used to address the question of how best to assess interviewing and counseling skills. as an aside, it becomes clear that much more empirical analysis is in order.13 1. u.s. legal education and bar admission standards. whether you reside inside or outside the united states, it is important to recognize some key differences between american legal education and licensure and the comparable legal institutions abroad. much of the rest of the world has a law school and licensing structure different from that in the united states. in the u.s.14 almost all lawyers first obtain a four year undergraduate college degree (typically a ba or bs) and then go on to complete either a full-time three year law school program or a four year part-time program, both culminating with a jd degree.15 following the acquisition of the jd, an applicant for admission to the bar must successfully pass a bar examination in the state in which the future lawyer wishes to practice.16 once admitted to the bar, the new attorney is licensed to practice in any and all areas of law and inside or outside of the courtroom. while nearly all states have some form of post-graduate mandatory continuing education requirements17, there are almost no apprenticeship requirements18, as there frequently are elsewhere in the world. in the u.s., the american bar association section on legal education and admission to the bar is the entity that is authorized by the u.s. department of education to accredit law schools. it is the aba, therefore, that determines what a law school is required to do or not to do in order to be accredited. with the exception of a very small number of states, one cannot sit for a bar examination unless one is a graduate of an accredited law school. the aba has a fairly detailed set of regulations covering everything from the size of the faculty and the physical how should we assess interviewing and counseling skills? 59 12 more specifically, should clinicians devise and recommend ways to teach and evaluate skills learning for that large group of law school graduates who elect not to take clinics of skills courses? 13 i am in the process of addressing this dearth of data by conducting various studies of the efficacy of various assessment methods. 14 there are exceptions to all of the following generalizations in the text, however, this abbreviated summary of the differences, i believe, will be useful in considering the main theme of this essay regarding methods of evaluating interviewing and counseling skills. 15 robert b. stevens, law school: legal education in america from the 1850s to the 1980s at 209 (1983). see also aba lsac official guide to abaapproved law schools 2007 (wendy margolis ed., 2007 ed. april 2006). 16 there is one state, wisconsin, where taking a bar exam is not required if the bar applicant graduated from an accredited law school in wisconsin. this is referred to as the "diploma privilege." new hampshire has just begun the experimental webster scholar program pursuant to which a limited number of students are selected to participate after completing the first year. the students then will participate in clinical and skills activities during their last two years of law school. if they satisfactorily complete those tasks, they may be admitted to practice without taking a bar examination. see the discussion of this program in clark cunningham, "rethinking the licensing of new attorneys an exploration of alternatives to the bar exam: introduction", 20 ga. st. u. l. rev. vii at xiii xv (2004). 17 much, if not most, of american continuing legal education requirements do not involve graded evaluations of any written or oral work. rather, using new york as an example, the only requirement is that the attendee sign an attendance sheet at the beginning and at the end of a cle session. 18 vermont and delaware require forms of an apprenticeship. see v.r.a.b. § 6(i) and del. sup. ct. r. 52(a)(8). plant to guidelines on the curriculum.19 with respect to experiential learning, either in the form of students working on real cases under the supervision of law professors or practicing lawyers (cf. apprenticing), or in the form of simulation exercises, the aba does not require that every law graduate complete such training. the accrediting standards do encourage law schools to develop clinical education and they do mandate that every law school actually maintain some kind of a clinical or skills program.20 likewise, the state bar admission authorities, all of which are completely independent of the aba and the law schools, do not require any type of apprenticeship or experiential testing as part of the requirements for admission to the bar.21 there are some bar exam pen and pencil tests that call on bar applicants to demonstrate some familiarity with lawyering skills such as investigation or interviewing or counseling or trial advocacy skills. but, these questions, called "performance tests"22, do not in any way require the applicant to perform an oral skill. what all of this means is that it is very possible for a law student to graduate law school in the u.s., pass a state bar exam and be admitted to practice law, without ever having interviewed or counseled a client (real or simulated) or tried a case or negotiated a transaction or even without having observed such lawyering activities. thus, in terms of assessment of the actual performance of interviewing or counseling skills, there is neither a formative nor a summative evaluation requirement in law school or after, prior to being licensed to practice law. i am not aware of any data that specifies precisely how many american law graduates fall into this category of persons bereft of any clinical or skills training. but, extrapolating from my own law school experience and my familiarity with many others, it is clear that there is a significant number in this category, perhaps even half or more of american law graduates. moreover, the remaining students may have taken only a single clinical or skills course, hardly a basis upon which one might conclude that such a student is well versed or even minimally competent in those skills. it is in this context that law schools must address their institutional responsibilities to produce competent lawyers. if the bar admission officials are not taking steps to ensure the public that this is the case, then law schools, and particularly its clinical faculty, it seems to me, must confront this reality. even if the aba does not require that law schools address this need, the law schools certainly are not prohibited by the aba standards from trying to meet this deficiency. assuming then that law schools want to address and, indeed, are addressing this need, we come full circle, back to the task of determining how best to teach and evaluate these skills, beginning with interviewing and counseling. 2. professorial observation of student performance. how does a teacher evaluate a specific student's skills, either in a typical one-on-one live client clinic or in a larger simulation course such as trial advocacy or negotiating, counseling & interviewing? a professor's first response to this question must take account of the teacher's objectives. one clinician might focus on ethics and community empowerment23, while another 60 journal of clinical legal education august 2006 19 see maccrate report, supra, note 3 at 260-268. 20 but, see f.n. 4 supra. 21 but, see f.n. 18 supra, regarding apprenticeship requirements in delaware and vermont. ibid at 274284. 22 i do not mean to diminish the value of this form of written testing. i believe performance tests are an excellent format. i use them extensively, with and without an additional video component. see grosberg, supra n. 8 at 2 clinical l. rev. 366-379. 23 daniel s. shah," lawyering for empowerment: community development and social change", 6 clinical l. rev. 217 (1999). targets interpersonal skills such as the effective use of empathy. what are the skills or knowledge to be assessed, therefore, is the threshold issue for any teacher. a second issue is whether the assessment is in the nature of a constructive critique24 or a "graded" evaluation that directly affects a law student's standing and progression in law school or entry into the profession. there has been a considerable amount of clinical scholarship that focuses on giving constructive feedback, but much less on graded evaluations. among other things, the critiquefeedback literature has produced the detailed criteria that clinicians invariably use in one-on-one supervision sessions.25 the critique literature also appropriately centers on self reflection and the life-long learning process that is so central to clinical teaching.26 a critical dimension of any graded evaluation of a skills performance is that it be fair. this raises the same kinds of basic testing issues the reliability and the validity of the testing measures that ought to be confronted by anyone who is administering a formative or summative assessment tool of any kind.27 does the assessment tool accurately and consistently measure what it purports to measure? this holds true for an elementary school teacher giving an english exam to a fifth grade student as well as for a law professor grading a torts essay exam or a bar examiner testing an applicant for admission to the bar.28 despite the many years that i have been evaluating law students' performance of interpersonal lawyering skills in live client clinics, upper class simulation courses and first year introductory lawyering courses i still have recurring bouts of concern as to whether i am being fair in applying commonly accepted assessment criteria. for example, in the case of counseling skills, can i apply the criterion that a client receive a "clear summary of options" in a manner that would justify giving one student a b+ and a second, a b? these doubts were fueled by a group of studies done by medical educators who examined the results of analogous clinical evaluations conducted by medical professors.29 what they found was that the medical professors were not consistent in their evaluations, as a result of which, the analysts concluded, those assessments were not fair. the same performance might be assessed differently by different medical professors. or, the nature of the student-patient interactions observed were so different as to preclude consistent comparative grading of the students. indeed, similar results were reached with respect to the inconsistency of law professor essay grading.30 one consequence of the medical findings was that medical educators began to resort to other techniques one might say unorthodox or previously untried how should we assess interviewing and counseling skills? 61 24 see sources cited, supra note 6. 25 see maccrate report, supra note 3, at 138-148. 26 see richard k. neumann, jr., "a preliminary inquiry into the art of critique", 40 hastings l.j. 725 (1989); amy l. ziegler, "developing a system of evaluation in clinical legal teaching", 42 j. legal educ. 575 (1992); kenneth r. krieling, "clinical education and lawyer competency: the process of learning to learn from experience through properly structured clinical supervision", 40 md. l. rev. 284 (1981). 27 see rachael slaughter et al., "bar examinations: performance or multiple choice?", the bar examiner, august 1994, 7. 28 this is not the place to examine generally the fairness or unfairness of all of our law school assessment tools. my focus here is only on the individual and systemic aspects of evaluating interviewing and counseling skills. see friedland, supra note 8. 29 m.h. swartz et al., "global rating of videotaped performance versus global ratings of actions recorded on checklist: a criterion for performance assessment with standardized patients", 74 acad. med. 1028 (1999). 30 see, e.g. friedland, supra note 8, at 184 n.154. see also greg sergienko, "new modes of assessment", 38 san diego l. rev. 463, 471-72 & n.37-38 (2001). (discussing first a study that showed that when a law professor re-read an exam paper, there was only a seventy-five percent chance that the second reading would produce the same pass/fail result. a second study showed a bar exam question had only a sixty-seven percent chance of being graded consistently as to pass/fail by a second reader). methods of evaluating medical students' clinical performance.31 if the medical professors could not assess fairly the clinical interactions of their students, why do we think we are more able to do the same with our students? traditionally, clinicians have graded clinic students' interviewing and counseling skills by observing them performing these tasks. this continues to be the most generally accepted method of assessment. the clinical professor presumably is the most qualified person to assess whether a student's overall interviewing and counseling skills performance meets the standards of competent lawyering and to ensure that their evaluations are measuring what they purport to measure.32 this is the so-called "gold standard" evaluation.33 its validity is also reinforced when the students receive the applicable criteria with adequate advance notice.34 also, typically, the same criteria would be the learning vehicle for constructive non-graded feedback and student self-reflection as well as the bases upon which an ultimate grade would be determined.35 as stated above, however, while teacher assessments are quite valid, they may not be reliable in terms of consistency. the professorial observations more often than not would be faculty reviews of videotaped simulations. usually, in a typical clinic that i have taught, however, we would be lucky to have completed one videotaped simulated preparatory session prior to the student meeting with a real client or a witness. thus, the notion of repetition as the most valuable aspect of preparation, practice and more practice, is difficult to achieve.36 observing a student interviewing or counseling a real client might also take place, but the scheduling conflicts and unavoidable distractions and supervisory tensions often would interfere with the accuracy of these assessments or even prohibit these observations.37 3. multiple methods of evaluation. the question raised here is: is the teacher's direct observation of a student's performance of interpersonal skills the most effective way or, indeed, the only way to grade such skills? most importantly, is it fair? or, to use testing terminology, is it reliable, accurate and consistent from student to student? would another clinician give the same grade? and is it the most valid way to assess the overall levels of interviewing and counseling competency, or for that matter, specific components of the skills such as question form or the use of empathy? why shouldn't we consider other potentially supplementary or complementary ways to assess a student's interviewing and counseling skills? 62 journal of clinical legal education august 2006 31 one of these is the "standardized patient" (using actors first to portray patients and then second, to give evaluations of performances). see infra. 32 see kristin booth glen, "thinking out of the bar exam box: a proposal to "maccrate" entry to the profession", 23 pace l.rev. 343, 428 n. 357 (2004). (to be valid, any assessment must be certain to accurately measure what it purports to measure.) 33 see swartz, supra note 29. 34 cf. sophie m. sparrow, "describing the ball: improve teaching by using rubrics-explicit grading criteria", 2004 mich. st. l.rev. 1 (2004). 35 in my case, the interviewing and counseling grades would be part of the computation of a final grade. see gerald f. hess, "heads and hearts: the teaching and learning environment in law school", 52 j. legal educ. 75, at 107 (2002) (reporting on the importance of detailed criteria). 36 see david a. binder & paul bergman, "taking lawyering skills training seriously", 10 clinical l. rev. 191 (2003). 37 see joshua d. rosenberg, "interpersonal dynamics: helping lawyers learn the skills, and the importance of human relationships in the practice of law", 58 u. miami l. rev. 1225, 1234 (2004) (noting that the absence of repetition and the stepped development of these skills necessarily affects the quality of both feedback and grading. there are at least two rationales that favor using more than one method of evaluating a student's performance of interviewing and counseling. assume, for example, that the objective is achieving an overall novice level in initial client interviewing. first, using one method for example, observing a single live client-student interaction could have, depending on the circumstances, a distorting effect for any one of several reasons and, therefore, an unfair impact on any grade. it could be an interaction with a extremely difficult client. it could involve a much more complicated legal situation. there could be unreasonable time constraints or difficult physical conditions under which the meeting took place. the student might be feeling bad that day, etc. for any of these reasons a grade for interviewing based on this single interaction would be an inaccurate assessment of the student's overall competence level.38 why not err on the side of caution by not relying too heavily on only one method of evaluation? how can it hurt to use multiple assessment methods? one can also give different weights to different methods. still another reason for using more than one kind of testing device (e.g. multiple choice as well as essay questions) is that different students learn differently and, therefore, do better or worse depending on the type of assessment tools used.39 using a variety of methods enables the students to demonstrate their talents in at least some of the tests. this also improves the "validity" of the overall grade, because it accounts for different ways in which to register the multiple competencies that are necessary for lawyering.40 in addition, there is an element of repetition that favors giving students an opportunity to improve their abilities to both perform the same skill and reflect their full understanding of the skill and to improve their mastery of the testing device. the latter, i would characterize not in the pejorative phrases "teaching to the test" or teaching "test-taking skills" but rather as the opportunity to become familiar and comfortable with a particular kind of exercise. just as the typical law student learns through repetition how to handle the usual law school essay exam question, they are less prepared for some of these skills testing methods that they may encounter only once. for example, in the case of the standardized client exercises discussed below, the students conducting the second, third or fourth standardized client exercise know and understand the mechanics of administering the exercises better than they did for the first exercise. their added comfort level often facilitates a higher level of performance. it likewise seems indisputable that a student's experience with repeated tests of an interactive skill such as interviewing or counseling will benefit greatly from such opportunities. the value of repetition was noted earlier.41 another way to describe the repeated use of testing tools is that it is a way of giving stepped feedback to a student thereby reflecting that student's progress which is recognized as an "essential ingredient for how should we assess interviewing and counseling skills? 63 38 cf. friedland, supra note 8, at 185-86 (referring to this similar distorting impact when the grade is based solely on a single end of term exam and even worse, if the single question exam deals with the 1 of 6 course topics the student didn't prepare for.) see also glen, supra note 32, at 405 n.264; id. at 446. likewise, with respect to evaluating the overall competency of an interviewing performance, one student might be superb in establishing rapport with a client but quite ineffective in the use of properly formed questions, whereas a second student would be the reverse, but in a way that totally undermines the efficacy of the interaction. limiting the evaluation to a single event or to only one aspect of the skill may result in a misleading overall assessment. 39 see ian weinstein, "testing multiple intelligences: comparing evaluation by simulation and written exam", 8 clinical l. rev. 247 (2001). see also, john. m. bauman, "oral examination as a method of evaluating students", 51 j. legal educ 130, 136 (2001)(students performed well on oral exams while others did better on written exams.) 40 friedland, supra note 8, at 196. 41 see binder & bergman, supra, note 36. this would seem to be true whether it is repetition of overall assessments of complete client interviews or repetition (in the sense of drills) of more narrow skills (e.g. active listening or use of t-funnel questioning). advancement".42 professors binder and bergman have certainly persuasively made this "practice and more practice" point regarding interviewing, deposition and counseling skills.43 finally, before reviewing specific new assessment tools, it is worth noting clinicians' dislike of the grading process generally. brustin and chavkin recognized this reality in constructing their study as to whether a clinic should be graded in the usual fashion (a, b, c, etc.) or with a pass/fail.44 while i very much believe in detailed feedback and constructive advice as to how students might improve their skills, i frequently find myself delaying the final calculation of grades until the last possible minute. in my experience, the notion of giving a clinic student a "test", therefore, has an even more unpleasant sound to most clinicians. yet, most of us ultimately do in fact generally give a formal grade of some sort. if giving clinic students something that might be characterized as a test would make our grading better, fairer and more accurate, why not use these other devices. it is against this backdrop of more traditional methods of clinical assessment that i continue to experiment with different ways to evaluate students' interviewing and counseling skills. the following assessment tools are intended to complement or supplement, not replace, the traditional clinician's direct observation.45 [a] videotaped performance test.46 this is a written exam in which a student views a videotape depiction of a lawyering activity and is asked to analyze all or part of what is on the tape. the ability of a student to articulate (either or both verbally or in writing) why a lawyer effectively counseled a client would suggest a cognitive understanding of skills theory and its requisite components. it not only would reflect a student's knowledge of skills models and theories, but an understanding of how someone succeeded or failed in applying those theories. assuming one's teaching objectives included an understanding of skills theories, this is a valid way to assess that understanding. being able to parse the deficiencies of a golf swing will not make you a top golfer.47 but, it certainly cannot hurt in the development of the reviewer's swing. in simulation classes, we have asked students to view a videotape of someone else conducting a client interview or a counseling session and to write a critical analysis using those same criteria that i use in evaluating them.48 we have used this method in large skills classes both with an in-class exam (open book and closed book) as well as in a take-home exam. i have also given students a narrative of a factual situation or a transcript of a lawyer-client interaction, not unlike a traditional law school exam, and asked them to write an essay as to how they might handle counseling a client in that situation, or 64 journal of clinical legal education august 2006 42 id. at 204. 43 id at 201; see also rosenberg, supra note 37. 44 see brustin & chavkin, supra note 7, at 300-01. 45 i would be extremely reluctant to eliminate direct professorial observation of student performances even in the face of questionable reliability and accuracy data. rather, in addition to implementing the theme of this paper (namely, using multiple methods of assessment) i would take steps to improve the observation method. 46 see grosberg, supra, note 8 at 366-378. 47 contra rosenberg, supra, note 37 at 1234. 48 to make this assessment a more meaningful one, i give the students a case file that provides the context for the session. for example, for a counseling session, the file would include an initial client interview memo, as well as file memos and documents reflecting an investigation. it utilizes the same technique used on many bar exams (the "performance test") but adds the video component as part of the exam question. i have referred to these as "videotaped performance tests". grosberg, supra, note 8. see stephen p. klein, "an analysis of the relationship between trial practice skills and bar examination results," january 10, 1983 at 272 of learning and evaluation in law schools, supra n. 10. (in an analysis comparing the scores of a videotaped performance type exam and a traditional bar exam, the conclusion was that the former scores "were just as reliable" as the traditional essay questions id at 293.) in the case of a transcript, analyze the efficacy of the lawyer-client encounter. the former would call for an outline of a counseling session; the latter a critique. these kinds of questions would more explicitly call for an effective application of the readings and videotaped lessons that i typically assign in any course involving interviewing and counseling.49 the desired teaching outcome is for the student to clearly reflect an understanding of the applicable theories and why the lawyer was effective or ineffective. in many ways such a written critique of another's performance is comparable to a student's self appraisal, especially if it is facilitated by a videotape of the performance.50 in the ideal binder and bergman world, the student would have several opportunities to repeat performances of a skill. in that context, it seems to me, the ability to do an effective critique of another's performance would be transferable and identifiable in the student's next performance of the skill. for that reason, the critical analysis skill can play an important role in the student's development of the performance skill. this is in addition to using this assessment method for the independent purpose of testing the student's understanding of and the ability to apply the skills theories. the term "performance test" (pt) has come to mean in the world of bar exams and legal education, an opportunity to draft a written document that a lawyer might produce; e.g. a deposition outline, a jury summation, an opinion letter, etc. thus far, bar examiners have not yet extended it to include any oral lawyering performance or, indeed, to include a video component.51 the pt typically gives the test-taker a file with original fact documents and some law (cases, statutes, etc.) and asks the student to produce the requested document in a stated period of time based on that file. the pt is in stark contrast to the typical traditional law school exam which gives a one paragraph hypothetical and asks the student to write a judicial opinion resolving the dispute. in the "videotaped pt", the student is given similar fact and law files and then asked to provide an analysis of both doctrine and the interpersonal skill. for example, the student would then observe a lawyer counseling a client in the case reflected in the case files. in addition to analyzing the case and possibly producing a practice document of some sort (e.g. a negotiation outline), the student would also be asked to provide a critical analysis of the lawyer's counseling skills performance. in evaluating a student's response to a videotaped pt, the clinician can assess the students' legal reasoning and analysis skills as well as their understanding of what worked or didn't work in the interviewing or counseling performance and why. this depiction of a lawyer applying the law in how should we assess interviewing and counseling skills? 65 49 see books cited supra note 2. these works offer a theoretical foundation for a full discussion in an examinee's response to any test device that asks for an analysis of some aspect of a lawyer-client interaction. 50 see steven a. lieberman, "introduction of patient video clips into computer-based testing: effects on item statistics & reliability estimates", 78 academic med. s48 (2003). here again our medical colleagues have examined the use of such video exams and found them to be sufficiently reliable compared to text based questions. 51 the genesis of the performance test (pt) was an experiment in california in 1981 when the california board of bar examiners established an experimental "assessment center" in which applicants for bar admission completed both oral simulation exercises, videotaped performance tests as well as traditional bar exam questions. the results of the experiment were positive, however, both oral simulation exercises and video taped components were rejected for administrative and cost reasons. to my knowledge, the recommendation or even a modest suggestion to implement these more comprehensive testing techniques was never to be heard again, at least not publicly. those 1981 experiments did, however, lead to california's implementation of the threehour pt and later to the development and implementation by the national conference of bar examiners a ninety minute pt. see stephen p. klein & roger b. bolus, "an analysis of the relationship between clinical skills and bar exam results", july 1, 1982 at 164, josephson, learning and evaluation in law schools, volume 1, supra note 10. context offers the students the opportunity to analyze the lawyer's attempt to synthesize the law and the facts and then explain the law and the options available to the client. to make this assessment tool even more realistic, a professor might dispense with the typical in-class short time limits. for example, instead of giving students two or three hours to complete a videotaped pt, they might be given 2-3 days.52 as far as the ultimate grade in a live-client clinic, the video pt could play a role there as well.53 this, of course, assumes that learning and understanding skills models and theories is an objective of the clinician. the notion of a written final exam in a clinic, and often even in a simulation course, is contrary to most clinicians' pedagogical instincts. based on my experience, the use of any kind of a written exam in a clinic remains rare. once again, however, the starting point or premise for this survey of alternative methods of evaluating interviewing and counseling skills, is that what we're now doing might not be as fair or accurate for that matter as we might like to think it is. if that is true, we should be considering ways to move it closer to that ideal.54 the question is whether we remain open to improving our method(s) of evaluation. [b] multiple choice questions. the use of multiple choice questions on law school exams or the bar exam has often elicited controversy.55 for some law teachers, this testing method constitutes a poor substitute for an exam that calls on the student to write an answer demonstrating the ability to use and apply the law to a factual situation. the essay question continues to be the dominant form of law school exams.56 i was among those who reacted skeptically (even negatively) to the suggested use of multiple choice questions both on the bar exam and for traditional doctrinal courses. i never even contemplated using them for assessing interpersonal skills proficiency. yet some professors rely exclusively on multiple choice questions (evidence is one example57) and others are even now proposing their use for skills evaluations.58 overcoming a certain amount of resistance, we first began to use this assessment method in our first-year lawyering course. initially, we used multiple choice questions as ungraded in-class quizzes and then later as part of a final exam. one set of questions was based on a transcript of a videotaped interview that the students had viewed. 66 journal of clinical legal education august 2006 52 see glen, supra, note 32 at 368 (criticism of bar exam questions because of the disparate racial effect of exams with time limits). 53 see larry grosberg, "evaluation of oral lawyering skills through a video exam", in gerald f. hess & steven friedland, techniques for teaching law 308 (1999). 54 sparrow, supra, note 34 at 28-9, noting a colleague's use of her suggested rubrics as a way to make grading more consistent. 55 committee on legal education and admission to the bar, association of the bar of the city of new york, "report on admission to the bar in new york in the twenty-first century a blueprint for reform", 47 record 464, 482 (1992). (criticism of bar exam because of too much use of multiple choice questions.) 56 see greg sergienko, supra n.30. 57 interview of my colleague, professor eugene cerruti, with respect to evidence. october, 2004. 58 my colleague, professor stephen ellmann, encouraged me to use multiple choice questions for some limited teaching objectives regarding the assessment of interpersonal lawyering skills. professor sergienko discusses the use of multiple choice questions for "skills testing" in a recent article, but his focus is on "higher level cognitive skills" (sergienko, supra n. 30 at 493-501) and not the kind of interpersonal verbal skills that are the focus of this paper. the students were asked to choose the best of four assessments of an exchange.59 or, they might have to select the applicable concept or rule of law.60 still another multiple choice question we used was to select the best assessment(s) of a lawyer-client interaction.61 there is much to be said for using such quizzes simply because of the speed with which the student receives the test results. the quick turn-around to students can be extremely useful in terms of their improvement of their performance.62 as with other methods to assess interviewing and counseling skills the threshold issue is does it assist us in achieving our teaching objectives, and, therefore, is it adding anything useful to our how should we assess interviewing and counseling skills? 67 59 q#1. at the beginning of the excerpt from the session between attorney mary hogart (at) and maureen redhail (mr), this exchange takes place: mr: so, can you tell me what to do? i'm torn between my choices. at: well, i understand why you might be torn in this situation, you're facing a really tough decision. but, really it's your decision. ummm, and as tough as it is, you're in a much better position than anybody, including me, to make the decision. because you know what's important to you and also you're, you know, you're going to have to live with the consequence of your decision. so i'mmr: right. at: i'm very happy to help in any way that i can. is there anything that i can tell you that might help you sort this out? in light of the options that maureen redhail had (as explained in the prior dialogue), which of the following assessments of this exchange is the soundest? a. since no one could reasonably have chosen to go to trial in this case, the lawyer should simply have said right that right away. b. in responding this way, the lawyer is showing no empathy for the client's understandable uncertainty and desire for help. c. the lawyer bluntly and properly refuses to answer this question since lawyers should never state their opinions about what to do in case. d. the lawyer rightly urges the client to reach her own decision, since it is her case and her life, but does not absolutely refuse to answer the question. [correct answer to q#1: d] unpublished quiz, lawyering, spring 2004 (on file with author) 60 friedland, supra note 8, at 165. this would be relevant to the legal reasoning and analysis skills as opposed to oral lawyering skills. 61 q#3. based on prior dialogue between the attorney mary hogart (at) and her client maureen redhail (mr) regarding the client's concern for the welfare of her two children, they go on:. at: so, one of the things that might help you with this decision is trying to sort out, ummm, what is the most important priority. knowing that the kids are really important to youmr: right. at: is the chance of getting a better financial settlement at the end of trial, ummm, and being in a slightly better position financially more important to you than the risk of having them deposed and having this continue? mr: yeah. i see. well, the settlement, what they're offering, is already better than what i've had this past year. at: it is better than what you've had. it's absolutely better... please consider the following assessments of this excerpt: 1. because the lawyer's job is to help the client to clarify her own thinking, it makes good sense for the lawyer to ask the client to compare two different ways that she might help her children and to judge which is more important to her. 2. the lawyer potentially skews the comparison she is asking the client to make by recognizing the extent of the financial improvement that the trial might produce. 3. the lawyer's statement that the settlement is "absolutely better" than what maureen has had for the past year is accurate but may be so strongly phrased as to encourage maureen to lean towards settlement. 4. by putting the comparison in terms of the client's own values, the lawyer avoids taking on the role of telling the client what values she should hold. which of these statements are well-founded a. 1 & 3 b. 2 & 4 c. 1, 2, 3, & 4 d. 1, 3, & 4 [correct answer to q#3: c] quiz, supra note 49. 62 see sergienko, supra, note 30, at 493. repertoire of evaluation tools. i think the answer is a modest yes. while it does not evaluate a student's ability to perform, it does enable us to evaluate a student's understanding of skills theories and lawyering models. one prerequisite, of course, is that the questions are valid, reliable and efficiently administered.63 do the questions measure what they purport to measure? in our case, did the questions measure a student's cognitive understanding of basic interviewing and counseling concepts? i believe the answer is yes. while intellectual understanding of applicable lawyering theories does not mean someone will be a good interviewer, it does mean something, and it could later aid in someone's actual ability to perform. more importantly, if a lawyer understands why certain interpersonal concepts are valid, that lawyer is more apt to ground her behavior in those principles than to just act instinctively or spontaneously in a very ad hoc manner. finally, the use of multiple choice questions simply adds an alternative evaluation device. its use means that a student's entire assessment is not unduly placed on one evaluation tool.64 it enables us to minimize the deficiencies of an one particular method of assessment. to the extent such questions are used in mid-semester quizzes, and then repeated in a course summative final exam, it also is an effective and efficient method both of providing ongoing or interim feedback (always useful from a learning perspective) and giving them notice of the testing method to be used on the final. from an instructor's perspective, it's also much easier and speedier to grade such questions than essay or other textual test responses, an especially important factor in large classes. [c] self reflection or self evaluation. this has certainly been one of the traditional ways in which clinicians have engaged students in the process of evaluation. indeed, teaching the skill of selfcritique is itself often a clinical teaching objective.65 to the extent that student development of life-long learning habits is a goal, self evaluation can be a valuable tool. a student's selfevaluation/critique often is done in the form of a written document, typically without any (or much) time pressure. but it also could be done more informally and only verbally. for me, in clinics, this is often part of a semester-end one-on-one meeting with students. the care with which a student analyzes her or his own performance will necessarily reflect the student's understanding of and application of interviewing and counseling theories to the specific situation that is the object of the critique.66 and as discussed above, the same would be true of an analysis of someone else's performance. both provide additional components of what might be a student's final grade on her interviewing and counseling skills. [d] standardized clients. still another method of evaluating student skills performance is the "standardized client". this is a method that is based on the medical education model the "standardized patient" in which a lay person is trained to portray a patient and then to give written feedback to the student interviewing and examining them. i have been experimenting with my adaptation of this tool to law school in several contexts.67 essentially, we train actors first, to 68 journal of clinical legal education august 2006 63 friedland, supra, note 7 at 157-163. 64 id. at 182 (measuring skills has "perplexed" professors, especially those that typically administer essay exams). 65 see nina w. tarr, "the skill of evaluation as an explicit goal of clinical teaching", 21 pac. l. j. 967 (1990) and ziegler, supra, note 26. 66 "helping students identify when they had difficulty acting consistently with their intentions enhances skills learning." don peters, "mapping modeling, and critiquing: facilitating learning negotiation, mediation, interviewing, and counseling", 48 fla. l.rev. 875, 924(1996). 67 see, e.g. see e.g., lawrence m. grosberg, "medical education again provides a model for law schools: the standardized patient becomes the standardized client", 51 j. legal educ. 212 (2001); and lawrence m. grosberg, "standardized clients: a possible improvement for the bar exam", 20 ga. st. u. l. rev. 841 (2004). role-play clients or witnesses and second, to complete an assessment of the student's performance on a checklist68 that the professors prepare. while dispositive results are not yet in, the preliminary findings69 suggest that this is a valuable assessment tool which gives students multiple70 opportunities to perform a skill and to receive valid and reliable feedback as to how they are doing. in our first-year lawyering course, these exercises facilitate achieving the objective of introducing students to the basics of interviewing and counseling and fact analysis. we do not purport to do more. at most, a student might reach a novice level as an interviewer. on a more mundane level, the sc exercises also offer students some feedback on how a stranger might perceive them. it also affords them the opportunity to achieve a higher comfort level in trying to engage a client or a witness in a conversation. for many students, it is the first time they have had such a human interaction with a stranger. as i suggested at the outset, a major concern is whether our overall assessments are fair, sufficiently objective, and, ultimately, accurate measures of a student's interviewing and counseling skills. one of the reasons that this device began to be used in medical education was that the professors concluded that their direct observations of their students' clinical skills were too variable and unpredictable.71 observing a student performing a tonsillectomy is not the same as observing that student operating on a broken back. similarly, a medical professor might be called away from an observation of a student for an emergency. the use of standardized patients was one way to ensure that all students got the full, as well as the same, array of cases to deal with.72 very similar obstacles (and others as well) get in the way of law school clinicians in observing student performances on real cases. thus, it could be a useful supplement even in our live-client clinics and simulation courses. the standardized client can also be valuable as a vehicle for introducing students to skills learning in situations where it is practically or financially impossible to provide professorial feedback on skills performances. that in fact is the context in which i have been conducting most of my experiments with this technique. our first-year required course in lawyering is a large class (we have four sections of 110 students each) which has as its purpose, the introduction to fact analysis and interviewing and counseling.73 one-on-one teacher feedback is not financially feasible. providing each of them with three standardized client opportunities, how should we assess interviewing and counseling skills? 69 68 for an example of such a checklist, see www.nyls.edu/grosberg. 69 the institutional research specialist at new york law school, dr. joanne ingham, compared the scores given by forty-two actors and four law professors on a random sample of 99 professoractors pairings from three different sc exercises conducted during the actor training sessions. she found that the average agreement levels for sc exercises i, ii and iii were 64%, 70% and 53% respectively. an assessment of the data indicated that future modifications to the training program will produce an increase in the current agreement levels. in her opinion, these data are sufficient to support the reliability and the validity of low stakes grading of the sc exercises. see also karen barton, clark d. cunningham, gregory todd jones & paul maharg, "valuing what clients think: standardized clients and the assessment of communicative competence", clinical l. rev. (2006) (forthcoming). (the preliminary results of their full-scale study of the use of standardized clients in scotland as part of the scottish requirements for admission to the bar suggest strong correlations with assessments by the scottish tutors, attorney-teachers already admitted to the bar.) 70 binder & bergman, supra, note 36 at 201 (noting the significance for value of opportunities for repeat performance). 71 see also sergienko, supra, note 30 at 471-472. 72 see mark h. swartz & jerry colliver, "using standardized patients for assessing clinical performance-an overview", 63 mount sinai j. med. 241 (1996); grosberg, "medical model", supra note 67 at 215. 73 for a fuller description of the lawyering course, see grosberg, "bar exam improvement", supra note 67. however, is a viable option.74 as a result, each of our students has the chance to conduct an initial interview of a potential client, an interview of a witness in another case and a counseling session with a client in still another matter.75 we also use a videotaped pt as part of the final exam in this course. in the simulation skills courses (e.g interviewing, counseling and negotiating) as well as the liveclient clinics76, the use of standardized clients may be the only way to accomplish the kind of repetition of skills exercises which some feel is critical to meaningful skills learning.77 it is worth noting that repetition is integral to law students' learning of legal reasoning and analysis skills; they are developing those skills in all of their first year classes, as well as most of the upper class courses. the same should be true as to interpersonal skills. again, the goal in the use of standardized client exercises is not to displace other evaluation methods, especially direct professorial feedback, but to supplement those clinical assessment tools with additional and repeated measures of competence. [e] computerized assessment tools. the videotaped performance test and the use of multiple choice questions are assessment devices that may now be used via the computer.78 the technology (either on line of via cd's of dvd's) is available for use either as a formative or summative assessment tool or as a self-learning device for students to take home and use as desired. in the latter case, it raises basic questions about how to lay the groundwork for effective student use of such a self-learning vehicle. in its more extreme form, the "distance learning" concept is similarly raising these questions.79 to what extent can students develop the necessary lawyering skills (legal reasoning and analysis and writing, as well as skills such as interviewing and counseling) simply by sitting next to a computer? has the law school socratic discussion become an anachronism? this is not the place to address these fundamental issues about how people learn and the extent to which it is reasonable to rely on self-learning techniques. but, it is clear to me, that just as the video pt assessments and multiple choice test questions can have some benefit in students' learning, the computerized versions of those methods might do the same.80 they cannot be a replacement, however, of interpersonal live interactions. professor maharg has taken things a step further by 70 journal of clinical legal education august 2006 74 the cost of standardized clients is not insignificant. to conduct nearly 1500 standardized client exercise entails approximately $45,000 out-of-pocket costs. but consider how much it would cost if professors gave feedback on that many lawyer-client interactions. also, we hope to establish a center that could be used by more than one law school, thereby reducing the costs via the economy of scales. this is what medical schools often do as well. 75 last year we received faculty approval to giving grades on the standardized client exercises; 10 % of the students' grades in this two credit course is based on their sc evaluations. this would be considered a "low stakes" evaluation, as contrasted with the "standardized patient" exercises that are now, as of june, 2004, an integral part of the medical licensing exam a "high stakes" evaluation. the results from this past semester suggest that a small but vociferous minority had strong objections to being assessed by a non-lawyer. similar complaints, however, are made to medical educators' use of standardized patients, even after thirty years of use and full acceptance by the medical schools and the medical licensing authorities. 76 some clinics may not include skills training as a teaching goal. 77 see, e.g., binder & bergman, supra, note 36 at 201. 78 professor paul maharg at the glasgow graduate school of law has been doing innovative work with regard to interactive computer programs. i have also produced an interactive cd for use in a firstyear property class. the cd contains alternative video depictions of a lawyer-client counseling session, the contents of the case file, the relevant law and a series of multiple choice questions calling for analysis of the various aspects of the case. it is available by contacting the author at lgrosberg@nyls.edu. . 79 see e.g. phil agre, "the distances of education", 85 academe 37 ((1999)(discussion of distance learning in education). 80 the grosberg cd is essentially a videotaped performance test via a computer. again, i believe these computer modes are not a substitute for traditional skills feedback, but simply supplements or complements. developing a virtual world in which students can practice law and have their virtual world law work evaluated.81 practicing law in the virtual world gives maharg students the opportunity to be creative and do things not possible in a clinic, or even in a traditional simulation course and to do so without the concern that they will make a mistake with a real client. for example, they can exercise initiatives to bring a lawsuit or alternatively, to propose an adr device to resolve a dispute without litigation, just to name two. the opportunities in the virtual world provide a potentially richer base upon which to assess the students' strategic as well as interpersonal lawyering skills. the computer records provide the basis upon which the assessments of student work are based. while he has not yet developed avatars who could be interviewed and counseled by the students in an interactive and interpersonal sense, he has taken simulation several steps further than anything i have seen in the u.s. there is certainly room for some american pedagogical initiative here. conclusion evaluating interviewing and counseling skills calls on us to apply different measurement tools from those used to assess students' grasp of doctrinal law. we should approach this responsibility as clinicians in the same open-minded manner we would like to think we approach all educational issues. numerous ways to evaluate skills have been developed and we should use or at least consider the potential use of all of them, having in mind the ultimate refinement of the most appropriate mix in each situation. while clinicians have made much headway in developing sophisticated critique and feedback tools, there has been less effort expended on the more formal grading evaluation. to the extent we make progress in developing law school measuring tools, we should try to carry over developments to the bar exam. how should we assess interviewing and counseling skills? 71 81 paul maharg, "legal sims: from everquest to ardcalloch (and back again)" 2004; and patricia mckellar and paul maharg, "virtual learning environments in action" , 2002 and patricia mckellar and paul maharg, "presence, emergence and knowledge objects: user interaction in a virtual learning environment", all available at http//www.ggls.strath.ac.uk/itdu/research/default.ht m (description of professor maharg's virtual world of the city of ardcalloch in scotland in which his law students conduct law practices). 72 journal of clinical legal education august 2006 405 do moot courts belong to high schools? and if so, under what circumstances? tereza krupová lenka pošíková tomáš friedel jan potucký1 introduction moot courts are considered to be a common clinical legal education method� the purpose of the following article is to demonstrate advantages and disadvantages of using moot courts as a teaching method at high schools� this will be based on the experience of street law assistants and their survey held among high school students� gathered and analysed information will hopefully provide answers to the questions mentioned above� the article is divided into four parts� the first part introduces charles university law school street law course since it serves as prime source of our experience with high school students teaching and organising moot court� the second part deals with basic benefits and set backs of high school moot courts� the third part is dedicated to survey results presentation and the fourth part is composed of our experience of moot court organisation� the purpose of our article is to offer basic information about the moot court simulation itself, present our survey research of high school students’ simulation perception and share our 1 authors of this text are street law assistants at charles university law faculty street law course� tereza krupová, lenka pošíková and tomáš friedel have received their master degree at faculty of law, charles university, prague, and are currently ph�d� students at this faculty� jan potucký is an undergraduate student at faculty of law� they all teach law at secondary schools (high schools) in prague and apart from this they help teaching street law� 406 international journal of clinical legal education issue 19 experience which might serve as encouragement for moot court organisation and also as basic advice on which common mistakes to avoid and what to pay close attention to� street law programme at charles university law faculty the street law programme was founded at charles university three years ago and it is designed as an optional course with one semester duration usually attended by fifteen students� seminars are taught by one teacher and three assistants who help with lesson preparations and provide mentoring for street law students� the course is divided into two parts� the first part is the “theoretical” one and initiates the semester� university students are taught basic teaching skills and methods and work to improve their presentation skills� the second part is the “practical” one� university students are split into groups of three and teach at high schools under the street law teacher or assistant supervision� this part lasts approximately six weeks (each group should teach at least ten 45minute long lessons) and represents the peak of the course� street law students are expected to conclude their teaching efforts in an appropriate way� some of them choose a written test, some prefer a closing discussion and some decide to organise a high school moot court� according to our experience approximately 80% of street law students choose this option and approximately half of them refuse proven moot court model cases offered by the street law teacher and create their own stories� pros and cons of moot court organisation by university students as already mentioned above, the street law course has been taught only for three years� nonetheless the organisation of high school moot courts was studied comprehensively and both advantages and disadvantages were examined properly� first of all it should be pointed out that high school moot courts are in general an attractive and challenging teaching method� this bold claim is justified by improved employment of creativity of both university students who create the case and manage the whole simulation and high school students who play different roles and learn to cooperate while extending their knowledge� additionally high school moot courts test university students’ knowledge of positive law, their organization skills and creativity� on the other hand, high school moot court organization is very time-consuming and university students usually spend a lot of their spare time since it is necessary not only to prepare the case and roles, but also to possess perfect legal knowledge, because of the frequent appearance of unexpected situations during the moot court performance� moot court performance requires a certain legal knowledge which high school students mostly lack and the teacher’s task is to find a proper balance between the necessary basics and overextension� so high school students will know what to do yet they won’t be discouraged or even demotivated� despite the mentioned disadvantages or complications the organisation of high school moot court is a very popular teaching method among university students� the survey and its results the survey was held among high school students who already participated on moot court simulation� in total we collected almost 30 answers which serve as a base for our research� we asked several questions combined both from simple yes and no ones and more narrative ones� however presented will be only some of the most important ones� our goal and research purpose is both to ensure students receive desired impact and simulation serves its true educational purpose while held without any organisational troubles� moot court is a method which differs from typical education� maybe this uncommonness makes it so popular among high school students, at least according to our questionnaires results� most (70%) of students looked forward to it� another 20% were unsure and only 8% expressed their rather negative concern� was moot court participation beneficial for you? many students also consider moot court as a very or rather useful educational method (92%) and no student stood in opposition claiming the method was useless� 407 0 10 20 30 40 50 60 70 80 90 no 4 not sure 13 yes 83 do moot courts belong to high schools? and if so, under what circumstances? 408 international journal of clinical legal education issue 19 do you consider moot court as a beneficial teaching method? most students (92%) would also integrate moot court as a compulsory high school teaching method� the rest of the students (8%) disagreed however they would make it optional or not compulsory for every high school or vocational school� do you think moot court should compulsory part of the high school curriculum? most students (78%) considered their legal knowledge improved by the moot court simulation� neither, nor rather not certainly not yes, a little yes, very 0 10 20 30 40 50 60 70 8 27 65 0 0 10 20 30 40 50 60 70 80 90 100 no 8 yes 92 0 409 do you consider your legal knowledge positively improved by moot court? we also asked students how exactly they benefited from the simulation� except knowledge gain (40%) and justice system awareness increase (47%) some students were just excited about the new teaching style (13%)� how exactly have you benefited from moot court participation? finally we wanted to know if the simulation changed students’ relationship to the law� to our surprise the dominant answer was no (75%) which students later explained was as a result of having a positive approach to the law already� rather no no do not know yes 0 10 20 30 40 50 60 70 80 90 4 11 7 78 do moot courts belong to high schools? and if so, under what circumstances? gained awareness of real justice system refreshing teaching style knowledge gain/increase 0 5 10 15 20 25 30 35 40 45 50 47 13 40 410 international journal of clinical legal education issue 19 have your moot court participation changed your relation to law? moot court organisation the main advantage lies with the fact that no matter what role is performedjudge, state prosecutor, witness or attorneystudents must prove their newly consolidated and intensified knowledge at the “court”� this method also develops logical thinking, rhetorical abilities and performance in public as well� the unusual experience of the court room atmosphere might strengthen the bond among the students and increase their relationships and cooperation within the group� according to the questionnaire high school students value the knowledge extension, experience gain and attractiveness of the teaching method itself almost equally� preparation of such a project is organisationally demanding and time consuming for both students and teachers alike� the following will deal with some of the most common difficulties and also provide suggestions and possible solutions according to our best experience� the initial tasks of the university student teacher, or anyone organising moot court with high school students, are to choose and modify or adapt the case, assign roles to the high school students and most importantly prepare them for their performance� first of all a choice of the legal branch must be made� most common are the criminal cases which are very attractive to high school students and thus beat civil law with its favoured family law cases� criminal cases are very interesting also because of their close proximity to our own lives and environment meaning almost every student had seen a murder or robbery in the news� civil issues are not such a preferred topic of mass media despite their charm and they also do not offer so much variety or numbers of roles for students as criminal cases� after choosing the legal branch the teacher should create or choose a case� either option has its pros and cons� while creating a case will suit the class’ needs perfectly, choosing one from real pleadings is less time consuming� both options include a storyline which the teacher stops at a certain moment� the moment might be the very beginning of the investigation when nobody truly knows who the perpetrator is, or s/he can narrate everything till the end providing students with a vast knowledge of procedural options� yes 25 no 75 0 10 20 30 40 50 60 70 80 411 do moot courts belong to high schools? and if so, under what circumstances? no option is absolutely correct and the teacher must balance the extremes to create the case which suits the class best� generally with specialised seminars with enthusiastic students it is better to give them legal and procedural freedom based on their knowledge� with larger groups of compulsory subjects it might be better to line up the facts a bit more� some students incline to certain roles as they embody different type of powers and responsibilities� this might be caused by their personal references based on their perception, abilities or family experience� students might thus be driven by the need of deciding the dispute (judge), represent justice (state prosecutor) or maybe improving their acting talents (accused or witness)� though not every student will strive for a certain position some might choose the passive approach and wait for directive role assignment� role numbers and types vary according to the number of students participating, from smaller seminars of 10 to whole classes of 30 students� nonetheless every student must have a role to perform and participate in a simulation� in order to achieve this goal we assign three or four students as state prosecutors or increase the number of attorneys no matter what is the reality� such changes are acceptable as long as they serve an educational purpose� easing the burden of prosecution or defence by distributing it among more students is definitely beneficial since team work might increase student productivity, cooperation, self-confidence and actually allow them to cover a wider range of knowledge� the teacher’s task is to make the team work effectively by selecting proper group members so the eventual contribution would not be unequal� an additional benefit is task delegation among group members in case of illness or any other genuine reasons for absence of a student� in large student groups we might need to deploy auxiliary roles such as journalists, additional witnesses and even security guards� another option is to widen the process� some students might be assigned police officers work such as providing proofs, testimonies and other background for the prosecution or eventually defence� this composition will however claim additional time� where to hold the simulation? moot court can be organised directly in a classroom or any lecture room at your disposal with sufficient capacity� even p�e� classrooms might serve the purpose reasonably well� some of the law faculties possess their own court room, specially designated and equipped for court session simulations� this environment adds a certain dignity and unique atmosphere to the simulation and students experience will be only enriched with these strong emotions� similar improvement might be achieved by wearing the proper robes including wigs where appropriate� transportation, additional time demands, securing the room and other organizational requirements might be seen as disadvantageous� schools frequently lack required space for such activities� how do you deal with the insufficiency of time while keeping the regular class in tact? outsource every possible activity, communicate organizational details via emails and assign roles, law and case studies as homework? another very important issue is the teacher’s intervention frequency� how much should the students‘ performance be interrupted and how do you give proper feedback? to answer this question we must first realize the purpose of the simulation which is to educate students� no matter how close this teaching method is to theatre play and acting its’ prime focus is education� students should thus not only recite legal texts but fully understand the sense and order of each act� for example when and why can testimony be denied, how are basic rights ensured and justice served� 412 international journal of clinical legal education issue 19 feedback is a necessary part of education and also moot court simulation cannot be without it� the teacher may also choose how to provide students with feedback based on their performance� the first option is to stop the simulation and comment on what has happened both correct and not so well� the frequency of these interruptions can be pretty high but they must not exceed a certain level in order not to spoil the “fun” and become mere lectures resembling others� the second option is no interruption at all� feedback is thus given as a whole after the simulation� a balance of these options seems to work optimally� however the teacher should focus on feedback amount and quality no matter which method he/she chooses to incline to more� conclusion in the end we would like to provide one of our survey results which deals with high school students satisfaction with the organization of moot court� most of the students would not change anything (38%) while others would appreciate more time to prepare (19%) or more accurate role descriptions (14%)� 29% of students had different propositions like a more serious atmosphere, undisciplined student class or the need for a more complicated case� after all, we hope that we have shown that despite the fact that high-school moot courts are demanding to organize and manage they are very challenging and definitely worth doing� so let’s start another moot court! what would you change on moot court organisation? after all, we hope that we have shown that despite the fact that high-school moot courts are demanding to organize and manage they are very challenging and definitely worth doing� so let’s start another moot court! more accurate role description nothing other add more time for preparation 0 5 10 15 20 25 30 35 40 14 38 29 19 579 clinical legal education and cultural relativism – the realities in the 21st century professor oluyemisi bamgbose dean of law/director women’s law clinic, faculty of law, university of ibadan, nigeria and omolade olomola, lecturer in law/clinician women’s law clinic, faculty of law, university of ibadan, nigeria paper presented at the 6th worldwide global alliance for justice conference and the 9th international journal of clinical legal education conference at the university of valencia in valencia july 11-15, 2011. 580 international journal of clinical legal education issue 20 abstract ‘ubi jus ibi remedium’ is a latin maxim that means ‘where there is a wrong, there is a remedy’. human rights are expected to be universal and applicable to every human being. in reality not all rights guaranteed in the international instruments are applicable in some african societies with different culture, religion and norms. culture shapes the identity of people generally in africa and elsewhere thus the issue of cultural relativism is germane to the very existence of people of african descent. international convention and instruments provide for women’ rights generally and particularly the right to life. the experience in the women’s law clinic (the clinic) of the university of ibaden has shown the imbalance between clinical legal education (cle) and the realities in practice. this paper considers the cultural practices in some societies in nigeria, the techniques of cle adopted in the clinic and the challenges of the 21st century. key words – clinical legal education, cultural relativism, 21st century. suggested theme: -what clinical legal education can and cannot achieve 581 introduction in the case of owonyin v. omotosho, (1961, scnlr) bairamian, fj, described customary law as “a mirror of accepted usage.” this definition was adopted by the supreme court in the case of kindey & 11 ors. v. military governor of gongola state, (1988) 2 nwlr (pt.77) 445. the definition in owonyin v omotosho, (1961, scnlr) was applied and explained further in the case of odoemena nwaigwe & 2 ors. v nze edwin okere, (2008 sc) where it was stated per niki tobi jsc that: “customary law emerges from the traditional usage and practice of a people in a given community, which, by common adoption and acquiescence on their part, and by long and unvarying habit, has acquired, to some extent, element of compulsion, and force of law with reference to the community. and because of the element of compulsion which it has acquired over the years by constant, consistent and community usage, it attracts sanctions of different kinds and is enforceable” culture is usually believed to guide the values of the society. what is considered moral in one society may be considered immoral in another, and since no universal standard of morality exists, no one has the right to judge another society’s customs. the ideology that all beliefs, customs, and ethics are relative to the individual within his own social context is known as cultural relativism. according to falola (2008), culture shapes the perception of people in africa and some other places; it also affects the interaction between people and their environment. he reiterated further that culture defines or explains the habits of the people such as respect for old age, giving birth to many children, taking care of the children, hard work, practise of polygyny and the support of patriarchy otherwise known as male dominance. furthermore, culture is referred to as the way of life of a group of people (olaoba, 2002). olaoba defines culture to include the existence of a legal system which is fundamental to the maintenance of peace and harmony so that life will be meaningful and worth living. in essence, law in traditional african society is never defined in a vacuum, it is as matter of necessity clothed with the gown of culture in order to justify its applicability and ensure observance by the people. thus, in the application of law in the traditional african setting there must always be a recourse to the culture of the people. this is stemmed from the fact that the fundamental feature of african legal culture is the notion of collective responsibility for offences committed by an individual in the society. in addition, african legal culture is embedded in traditional religion because africans believe in the influence of ancestors on virtually all human activities. the goals of the women’s law clinic are to train law students in the practice of law, utilizing techniques of clinical legal education; and to provide legal services to the less advantaged women in society. it is a specialized clinic in the sense that it is for women and it started off in the areas of human rights and family law, which are in fact very wide areas and has since expanded to accommodate other areas of law. for clinical legal education and the practice in the university of ibadan women’s law clinic; the traditional approach of settling disputes without litigation is adopted. there have been many achievements. however a lot of challenges are still being faced when dealing with certain issues especially those relating to marriage, child custody and inheritance. the major hurdle in the achievement of the objective of the women’s law clinic is the dictates of culture and traditions. clinical legal education and cultural relativism 582 international journal of clinical legal education issue 20 cultural relativism from an anthropological perspective, cultural relativism is the position that all cultures are of equal value and need to be studied from a neutral point of view (glazer, 1996). thus this type of study views any culture with a cold and neutral eye and understands the particular culture on its own merits and not another culture’s. the first use of the term as recorded in the oxford english dictionary was by the popular philosopher and social theorist alain locke in 1924. he adopted the term to describe robert lowie’s ‘extreme cultural relativism’ (htpp://dictionary.oed.com ,2009). cultural relativism is a system of social beliefs in the modern world. whether a culture is good or bad is specific and this cannot be imposed in cultural analysis. thus what is good in one culture may be categorized as bad in another. this implies that every culture determines its own ethical judgments to regulate the proper behavior of its members. cultural relativism maintains that there are differences in ideas, views, values and perception among people of diverse cultures. it is contended that rights and rules about morality depend on cultural context. culture as employed here goes beyond indigenous and customary practices to include political and religious ideologies and institutional structures. thus notions of right and wrong necessarily differ throughout the world because the cultures in which they take root themselves differ (www.oppapers.com last accessed on 20/06/11). it should be noted that the issue of cultural relativism seems to be a well-won debate as the court has laid credence for the issue. in igra v igra (1950), the court was conscious of cultural relativism in its final decision to recognize a german divorce which was obtained during the war at the instance of the gestapo on what was suspected to be racial grounds. in that case, pearce j. held that: “the interests of comity are not served if one country is too eager to criticize the standards of another country or too reluctant to recognize decrees that are valid by the law of domicile” furthermore, in the case of syndicat north crest v amselem (2004) the supreme court of canada in its critique of freedom of religion and culture made it clear that even where a practice is found to have a religious or cultural essence, courts must still consider how that conduct affects the rights and interests of others. the acceptance of cultural relativism as an ideology believes that nothing is inherently wrong or right with any cultural expression. however, cultural expression is limited when rights and interests of other people are involved. according to james rachels, (http://www.squidoo.com/culturalrelativism) cultural relativism while being useful in helping people to keep an open mind to other cultural practices, it should not be held true in its entirety. thus the practice of cremating the dead as juxtaposed with eating the recently deceased are both correct according to the community involved and each view the other as appalling. 583 legal education in nigeria according to elias (1962) formal legal education was not established in nigeria until after the country attained independence in 1960. until 1962, nigeria had no legal education curriculum of its own as it is known today. prior to this time, nigerians received legal training at british institutions having passed through an academic curriculum based largely on english values (bamgbose, 2010). the effect was that they had no instructions on nigerian law with its traditional socio-legal milieu and nigerian customary law. it was then realized that there was the need to indigenize training of legal practitioners in nigeria, the need to correct defects and lacuna in legal education of british trained lawyers. the federal government, then set up a committee, called the unsworth committee (named after the chairman) with the mandate to consider and make recommendations on the future of legal education in nigeria (fawehinmi, 1988). the report of the committee may be said to be the genesis of legal education in nigeria. the committee recommended in its report that nigeria should establish its own system of legal education and also recommended the establishment of faculties of law in universities in nigeria (elias, 1962). legal education is a tiered structure. the academic discipline is conducted by accredited law faculties under the control of the national universities commission (nuc), while the professional training is carried out by the council of legal education. the nuc conceives legal education as being purposive, therefore it is expected that the product of the program must be able to use law as a tool for resolution of societal problems and the resolution of various social and legal conflicts. for many decades, law faculties and the nigerian law school teaching relied on an education model that focused on theory, providing minimal opportunity for students to learn and apply the practical problem-solving skills critical to becoming a competent lawyer in real world settings. clinical legal education with its modern approach to learning has provided direction, and the tools for improving the legal education system and students are more prepared for the practice of law. clinical legal education in nigeria there is no doubt that education and educational policies are decisive in the long term development of any society (bamgbose, 2010). a crucial challenge to successful education is to create interest in new and emerging areas and to tackle new issues. this brings about an improvement of people and their attitude to life (bamgbose, 2010). it is therefore important that for law to perform its role in the society, legal education must be enriched with emerging concepts to improve the information and knowledge base of law students clinical legal education provides and significantly contributes to the continuum of legal education (maccrate report, 1992). the importance of clinical legal education in the acquisition of skills and values needed to make a competent and conscientious lawyer from a societal and cultural perspective cannot be overemphasized. clinical legal education through legal clinics exposes law students to professional and societal responsibilities and the need to meet the legal needs of the poor and underrepresented in the society. in nigerian legal education, a new curriculum of clinical legal education was introduced as part of the undergraduate ll.b programme in the 2008/2009 session. the clinical legal education curriculum was developed for nigerian universities’ law faculties/ clinics by the network of university legal aid institutions (nulai). prior to the introduction of clinical legal education into clinical legal education and cultural relativism 584 international journal of clinical legal education issue 20 the law curriculum in nigeria, the law faculties continued to function with strict and conservative attitudes towards the training programme (nulai, 2010).then, the law faculties taught only the theories of law without imparting practical or applicable skills and the only semblance of practical training to which the nigeria law student was exposed was at the nigeria law school. the position at the law school was very similar to the instruction at the faculties but they did manage to give some practical training through the attachments to courts and chambers; this also was inadequate. a lot of skill subjects were taught in theory only without exposing the students to practical training. the current law school curriculum has changed significantly with the introduction of the clinical legal education system in the current syllabus. in times past, the faculties and the law school curriculum did not expose the students to practice skills such as interviewing and counseling. also the exposure to litigation and oral advocacy skills in moot and mock trials was also limited. therefore the foundation of the need for the introduction of clinical legal education stemmed from the realization that there must be a holistic approach to the training process of law students in order to produce a wellrounded professional lawyer. furthermore, exposure to live cases and practical situations during the five year ll.b programme and the one year programme at the nigerian law school will afford the students opportunity to experience the realities of legal practice and understand the context in which laws develop and towards what role and end. presently clinical legal education is a priority area for tertiary institutions in nigeria. now there is a general drive to implement clinical legal education and changes in teaching methods in the various law faculties and the nigerian law school. the women’s law clinic university of ibadan the women law clinic of the university of ibadan hereinafter referred to as the clinic, is a law school based in –house clinic located in the law school, university of ibadan. the clinic was formally inaugurated on the 18th of july, 2007. the goals of the clinic are to train law students in the practice of law, utilizing techniques of clinical legal education; and to provide legal services to the less advantaged women in society. it is a specialized clinic in the sense that it is for women and it started off in the areas of human rights and family law, which are in fact very wide areas and has since expanded to accommodate other areas of law. the clinic focuses on the use of interactive teaching methodology, development of practice and practical skills such as interviewing, counseling, negotiating and oral advocacy, while also placing emphasis on the ethical dimensions of legal practice. with the introduction of clinical legal education, the clinic has been able to demystify law for students. the clinic embraces training in lawyering skills for the students and provision of access to justice for indigent clients within the community. in addition, the clinic uses law as an instrument for social change. through clinical legal education, student and staff clinicians in the clinic have been able to educate and promote the ideals of good and well-rounded counseling in rural communities in ibadan, oyo state, nigeria. 585 the vision statement of the faculty of law, university of ibadan is to be a world class faculty of law, dedicated to excellent legal training, research and development aimed at meeting the needs of the society; and the mission statements of the faculty are:1. to expand the frontiers of legal knowledge through learning and research. 2. to produce law graduates who are worthy in character, learning and sound judgment. 3. to contribute to the transformation of society through legal creativity, research and clinical legal education. 4. to serve as a dynamic custodian of society’s legal rights and values and thus sustain its integrity. 5. to be a center of excellence in research for legal models of cutting edge global issues. 6. to be a focal point and voice for law faculties and legal education in sub saharan africa. in furtherance of the above stated vision and mission of the faculty of law, the women’s clinic has been involved with several outreaches with focus on access to justice for indigent women. to achieve its aims and objectives, the clinic embarks on an ambitious sensitization drive among the women in the various communities. however in doing this, great care has to be taken because the cultures of the various communities have to be taken into consideration. this fact is not only applicable during the outreaches to the communities, but in relating and trying to resolve conflicts during clinic visits. this has posed a lot of problems to clinicians especially where there are conflicts in the carrying on of the function of the clinic and the cultural values of the people. individualistic outreaches have been an uphill task. this is a cultural problem. this is because generally, the culture of the people is such that does not allow for an individualistic campaign aimed directly aimed at women. the campaign or outreach must pass through the community protocol in terms of their leaders and representatives. community leaders, market leaders, trade groups through the leaders, and religious leaders have played major roles in the successes and failures of works embarked on by the clinic. these outreaches are held on a regular basis in various communities, markets, churches, hospitals and schools. indigent women are the target group of the clinic and these places have a higher population of this target group. since its inception, the clinic has organized clinical legal education workshops for staff and student clinicians. the academic staff have developed the clinical method of teaching and classes are now more interactive and very lively. the clinic makes information about legal rights widely available to all members of the community, male and female, even as it focuses on educating women in particular. often there are fears expressed when efforts are made to disseminate knowledge to all persons within a community because those with greater advantages might feel threatened. however it is believed that such fears are unfounded. a knowledgeable society with knowledgeable women is an upwardly mobile society. as women remain the primary caregivers in the society, their greater awareness will be clearly seen and felt in the younger generation. the huge response from the local communities shows that the clinic is a welcome and positive addition to the communities of ibadan and ultimately nigeria. the students are fully involved in the clinic’s outreach programmes and the client counseling. clinical legal education and cultural relativism 586 international journal of clinical legal education issue 20 in addition, with the introduction of clinical legal education students are exposed to professional values which include provision of competent representation, promotion of justice and fairness and professional self-development. students are therefore taught how to learn from experience. a few cases from the clinic are discussed below. case studies the majority of the issues that come for determination in the women’s law clinic of the university of ibadan relate to marriage and other familial disputes. these include wife battering, child abuse, wife maltreatment, child custody and inheritance. ordinarily, when one is faced with such problems as these, there is the temptation to have recourse to the law, often seeking formal legal sanctions and/or remedies, in order to deal with the culprit involved. however in most cases, culture dictates how to deal with such circumstances. clinicians are sometimes in a dilemma when the client reporting the case is reluctant to pursue the case adopting the legal process, because of certain cultural practices known to her or common to her ethnic group. the issue is more complicated when the client in the clinic wants to proceed with an action in line with her culture, but which the clinician is not familiar with. cases on marriage, child abuse and inheritance as a social institution, marriage is founded on, and governed by the social and religious norms of any given society. there is no doubt that the sanctity of marriage is a well-accepted principle in the world community. (nwogugu, 1990). in nigeria, there were basically two systems of marriage; islamic marriage – which is now recognized – is now a third. in times past, islamic marriage was categorized as part of customary marriage, however looking at the incidences of islamic marriage; it is now considered as a category that can stand on its own. case 1 a case was reported in the clinic by a woman who was separated from her husband. the children were living with the husband because he was the only person who was economically empowered. a twenty (n20.00) naira bill (about 1/8 of an american dollar bill) went missing and the man thought it was the daughter that stole it because he saw she had another twenty naira bill. with this belief, he beat the girl to a stupor. it was the erstwhile wife who reported the matter to the clinic after rushing the girl to the hospital. in dealing with this issue, it was glaringly obvious that the embittered wife did not want the husband to go to prison for battering the child or even her. according to her, the cordial relationship that existed with her in-laws would be jeopardized. she pleaded that the clinic should protect her daughter and not report her husband to the police. the clinic had to counsel the woman, call her husband, educate him on the implication of what he had done, counsel him and also the child. the clinic had to follow up the case to ensure that there was no repeat of the child abuse. this is just one of the ways in which the culture of the people changes the nature of the solutions offered in the clinic and impacts upon the legal education of the students. traditionally it is an abomination for a wife to report the husband to the police and it is assumed that only dissident women will go all the way to deal with erring husband. 587 case 2 another case is the one involving a woman who was hitherto happily married to her husband until the husband impregnated another woman and decided to marry her. the first wife was not pleased with this decision. the husband gave her an ultimatum of either accepting the second wife and remaining in the matrimonial home, or rejecting her with the consequence of her husband evicting her from the house she built with him. after educating her on her rights concerning the property, and when asked by the clinicians what she wanted, she stated that she would want to stay in the house with her husband even if it meant staying with the second wife who was the same age as her first daughter, but her interest in the property is protected. case 3 this is the case of a young lady who was denied her share of her father’s inheritance because she is female and married. the father died intestate and therefore subject to customary law. the clinic took the case up. the client was advised and educated about the legal position. she was told about the former position in the law as stated in nwanya v nwanya (1987) where it was held that a female cannot inherit the property of her father under the ibo customary law. she was also informed about the court of appeal decision in mojekwu v. mojekwu (1997) which marked a turning point in the law and happily held that females can inherit the property of the father. our client informed us that she wanted what was hers without offending the family and disrupting the custom. it took the intervention of the clinic, a lot of persuasion and mediation before she was given only a small portion of her entitlement to her father’s estate. to our amazement, our client was content with this small portion because according to her, the family “consented” to this small portion for her as against the whole entitlement which the family would not agree to give her. in addition she informed the clinicians that she would not be able to enjoy the whole property even if the court made an order that it should be given to her. while the law of inheritance and succession under english law is reasonably settled, especially where a will is written, the aspect dealing with customary law is not. it causes a lot of disaffection amongst family members. certain family members have rights of inheritance and others do not. this causes a lot of discrimination. case 4 similar to this case is the case of a young woman who was driven away from her matrimonial home after the death of her husband. this was based on the cultural argument that she had only female children and also that she could not inherit her late husband’s property because she is not related to them by blood. this is the position under customary law as stated in shogunro davis v. shogunro (1929) and nezianya v. okagbue &ors (1963). in both cases, it was held that the widow could not inherit the property of the husband under customary law. in this case the late husband of our client made a will. during the visit to the clinic, the woman was educated and counseled that she was entitled to the property given to her by her husband in his will. the brother-in-law who had taken over some properties of the deceased was shocked and furious at the action of the widow. he then decided, with the deceased’s family in full support, to send the woman and the children from the matrimonial home. with the intervention of the clinic, the woman was given the property by the law. our client however expressed her fears as to whether she may be able to take full possession or enjoy that property taking into consideration the cultural milieu and the clinical legal education and cultural relativism 588 international journal of clinical legal education issue 20 location of the property. the above cases are just few of the cases dealt with on an everyday basis and the conclusion is always tilting towards culture and traditions. there is definitely a conflict between culture and clinical legal education. in developing practical skills and training for students, student clinicians are confronted with actual problems, the real people involved in it and cultural realities. during sensitization outreaches, such realities are brought to light. two of such outreaches were held at shasha community, in ibadan, oyo state,nigeria and oje market, also in ibadan, oyo state,nigeria. the two communities are local suburbs in ibadan metropolis with very large numbers of indigent populace. the clinic could not invite the women together as a group to sensitize and educate them because of the nature of their businesses which is predominantly petty trading and selling of perishable food items. the clinic had to take this into consideration in its access to justice program for the communities. the clinicians organized themselves into groups, designed the methodology of effectively communicating to them while at the same time not disrupting their daily routine. this was done by staging short play-lets in the market place while the women were attending to their wares but at the same time listening. this was very effective. without leaving their business location, the clinic was able to effectively communicate to the women. this is in conformity with street law initiatives around the globe and a direct example is the model in georgetown law center where the first street law programme started in 1972. (d.c. street law program in http://www.law.georgetown.edu/academics/academic-programs/clinical-programs/our-clinics/ dc-street-law-program/index.cfm retrieved on 1 july 2013). during outreaches in rural communities, where the clinic is able to obtain the permission of community leaders and relevant leaders, and the women are gathered together in one place, it is not uncommon to give some incentives during the meeting. this depends on the type of group being addressed and it ranges from light refreshment to small household utensils. all these have cultural relevance as it has been observed that the outreaches have more participants in attendance when such incentives are sighted. having looked at the process of legal education in nigeria and the functioning of the clinic, it is important to consider the realities of the 21st century. the realities of the 21st century the education of the lawyer never ends because they must constantly be abreast of information which may be of use to the client. our world in the 21st century is changing rapidly. populations are more mobile. economic markets are becoming global. transactions demand cultural understanding. the internet and other communication technologies bridge time zones and distances to form new communities not bound by territory. the law, too, is changing to reflect and adapt to these new conditions and circumstances. in the light of advances in technology and globalization, the 21st century lawyer is one who ethically delivers legal services more efficiently, effectively, and in a manner that helps ensure the continued success of the legal profession. it has been easy to measure success as a lawyer. this may include attending a law school, obtaining 589 a good grade, getting employment at any of the popular firms, and becoming a partner. a lawyer uses legal skills to get work from (and develop relationships with) the firm’s longstanding institutional clients. in the corporate world, the guarantee of uninterrupted employment with a stable and growing company fostered avenues of career diversification. with the onset of economic growth, this has changed. the shift is now towards individual professional reputations rather than law firm affiliations. specialized expertise is now in demand, and the 21st century lawyer must now identify and market to clients the transferability and relevance of his/her experience rather than rest on the accomplishments of his/her firm. this means that he needs to approach his career development as a special enterprise, an effort nurtured by him, but created and directed by him individually. the 21st century lawyer is more self-reliant as he seeks new skill-building assignments and client interactions. this requires active initiative in mastering necessary skills and taking control of one’s own professional development. the 21st century lawyer must proactively identify and offer a skill set tailored to fit each client’s individual needs. personal and professional accountability to clients and one’s professional growth is a feature of the 21st century legal practice (sisson and mccormack, 2010). law faculties and law schools, lawyers, firms, and corporate counsel who demonstrate flexibility and innovation will be the ones considered “successful” in the 21st century (manman, 2010). lawyers serve the people and organizations they represent through a blend of practical and intellectual activities, with their mind and heart. effective lawyers need to understand people and organizations to handle the human aspects of resolving legal problems. lawyers who excel at problem solving become fulfilled leaders – serving their clients and communities by promoting fair processes and just outcomes. the last century of the last millennium was characterized by improvement and development in the field of science and technology including communication and information technology and law. in that century we witnessed the emergence of new technologies and globalization which have simultaneously on the one hand generated opportunities for expanded world commerce, communication, and cultural interchange. on the other hand, they have also generated world-wide concern over environmental, financial, commercial, and human rights issues accompanied by the creation of regional and global political and economic organizations, and a plethora of public and private transnational legal issues, treaties, legal guidelines, standard form contracts, alternative dispute mechanisms and domestic legislation attempting to respond to new problems and new opportunities for their creative resolution. globalization has changed the dynamism of the entire polity and society (www.legalservice.india. com on 10th may, 2010). in this changing scene of the world order, the law and legal practice play an important facilitative role. the law provides a framework which guides the global system. this necessarily means the availability of legal services to provide for the legal needs of these entities and activities requiring significant adjustment in the nature of legal practice and legal education and training that feeds it (manman, 2009). the realities with the introduction of clinical legal education in tertiary institutions in nigeria in the 21st century are that law students learn by experience; there is proactive participation of students in the learning process; students are motivated; the students are more involved with the local community and more relevant to the community and the students acquire the necessary skills clinical legal education and cultural relativism 590 international journal of clinical legal education issue 20 to be better practitioners. the importance of clinical legal education in the acquisition of skills and values needed to make a competent and conscientious lawyer from a societal perspective cannot be overemphasized. clinical legal education through legal clinics – street law – also exposes law students to professional and societal responsibilities such as community or public interest lawyering to meet the legal needs of the poor and underrepresented in the society, particularly in communities with indigent persons where the standard of living is generally low. through the street law programme, law students are trained to be relevant in the society. the lawyering strategy of street law helps to meet the legal needs of the poor and illiterate in the society, particularly in communities with low literacy level and where the standard of living is generally low. legal education in nigeria is not exempted from the influence of cultural relativism because; any law that affects the traditional moral order would be ineffective. with the advent of street law, the society is beginning to understand the implication of the formal legal system. the original and traditional mode of instruction in the faculties of law was not effective because it did not take into consideration the legal needs on the street. conclusion the realities of clinical legal education and culture in practice are multifaceted. this is in view of the techniques adopted to settle disputes in the clinic. the techniques are mainly mediation and reconciliation and the clinic strives to settle disputes without necessarily offending the norms and culture of the people except when it is extremely important to do so. the practice in the clinic is to avoid litigation as much as possible because of the cultural belief that once people go to court they can never be reconciled again. there is a yoruba adage that says that “a kiiti kootu de ka sore” which means you do not come back from the court after a dispute and remain friends. thus cultural relativism appears to serve as an impediment in realizing the goals of clinical legal education. it is worthy of note that in as much as every individual has the right to choose their own culture, which includes the right to enjoy and develop cultural life and identity, this right should not be used as a weapon of oppression and punishment against other people. in other words, using cultural relativism as a defense in violating human rights is an abuse of the right to culture itself. in many parts of africa, nigeria included, a clear distinction is not made between the past and the present whilst recent changes are taking place (cobbah, 1987). patriarchy (a social system where male dominance is established and practiced) is an accepted practice which has long been established in nigeria. the manifestations of this practice are clearly shown in various aspects of gender relations (falola, 2008). it is important to mention that even when the male leaders of communities and groups are invited, their first reaction when they see a female clinician is to disregard her. this is mainly because in patriarchy, a woman is supposed to be quiet and remain in the background always. it takes a lot to win the confidence of the men in such matters. in essence the challenges being faced by the clinic are two-fold; firstly the issue of culture and the personality of the clinician, secondly, the issue of culture and the subject matter of the case. it has been argued that in calling for total abolition of an entrenched cultural practice it may be desirable to find acceptable substitutes (falola, 2008). in other words some compromises may be accepted with a future hope of total abolition of oppressive customs. 591 conclusively, as the united nations human rights committee observed: “inequality in the enjoyment of rights of women throughout the world is deeply embedded in tradition, history, culture, including religious attitudes…states parties should ensure that traditional, historical, religious or cultural attitudes are not used to justify violations of women’s right to equality before the law and to equal enjoyment of all covenant (iccpr) rights (human rights committee (hrc) general comment 28). from the discussions above, it is glaringly obvious that cultural relativism is one major clog in the wheel of protecting women’s rights generally; however with effective clinical legal education techniques this obstacle is surmountable. in conclusion, techniques of clinical legal education are good and laudable however its practice must take into cognizance the culture of the environment so that its purpose can be achievable. end notes owonyin v. omotosho (1961) 2 supreme court of nigeria law reports 57 kindey & 11 ors. v. military governor of gongola state (1988) 2 nigerian weekly law report (pt.77) 445. odoemena nwaigwe & 2 ors. v nze edwin okere (2008) 5-6 supreme court reports (pt ii) 93 falola t.(2008), the power of african cultures, university of rochester at page4 olaoba o.b.(2002), an introduction to african legal culture, hope publications ltd. pg 11 glazer m.(1996) “cultural relativism” available via www.utpa.edu/faculty/mglaazer/theory/ cultural_relativism.html last accessed on 17th june,2011 cultural, adj. and n., oed online, sept 2009, oup. http://dictionary.oed.com/cgi/entry/50055630, citing locke’s article “the concept of race as applied to social culture”, howard review 1(1924): 290-299. www.oppapers.com/essays/cultural-relativism/37092 last accessed on 20/06/11. igra v igra (1951) all er 404 (2004) 2scr 551 http://www.squidoo.com/culturalrelativism accessed on 17/06/2011 elias t.o. 1962 journal of african law, volume 6 no 2 (summer 1962) pp17-125 bamgbose oluyemisi (2010) the old and the new wine: introducing reproductive law in the curriculum of faculties in nigeria in multiculturalism in the age of the mosaic. essays in honour of rudolph g wilson.afolayan, m.o ed. nova science publisher, inc. new york.pp 171-184 maccrate report of the american bar association, 1992 from www.apps.americanbar.org/ accessed on 15th june, 2010 network of university legal aid institutions (nulai), training manual on clinical legal education teacher training workshop for law teachers, university of ibadan. 26th-27th clinical legal education and cultural relativism 592 international journal of clinical legal education issue 20 february, 2010. p.5 nwogugu e.i, (1990) family law in nigeria ibadan heinemann educational books (nigeria) mojekwu v mojekwu 1997 7 nigerian weekly law report 283 nwanya v nwanya 1987) 3 nwlr (pt. 62) 697 shogunro davis v. shogunro (1929) 9 nlr at 79/80 nezianya v. okagbue & ors. (1963) 1 all nlr p. 352 tahir mamman., “globalisation and challenges for legal education in nigeria”., the punch, 21st december, 2009. martha ann sisson and amy leafe mc cormack., success in 21st century private practice. retrieved from www.law.virginia.edu on 10 may 2010. curriculum of legal education to meet challenges of globalisation”., retrieved from www. legalservice.india.com on 10th may, 2010 cobbah j.a.m. 1987; african values and the human rights debate: an african perspective in human rights quarterly 9.3, pg 309-331. falola t 2008; the power of african cultures. university of rochester press. pg 250-271 human rights committee (hrc) general comment no.28 on equality of rights between men and women”(article 3). un doc ccpr/c/21/rev 1/add 10 (2000) at paragraph 24. curriculum of legal education to meet challenges of globalisation retrieved from www.legalservice.india.com on 10th may, 2010 reviewed article: teaching and learning in clinic start-ed: a model for commercial clinical legal education david collins[footnoteref:1], eric klotz[footnoteref:2], ben robinson[footnoteref:3], city, university of london, uk [1: david collins is professor of international economic law; jd, bcl, phd; solicitor (england and wales), admitted to the bars of ontario and new york] [2: eric klotz is a visiting lecturer; phd, gdl; solicitor (england and wales)] [3: ben robinson is the community volunteering officer, ge llb] abstract this article outlines a pro bono student law clinic project focusing on providing legal assistance to startup businesses in central london. serving more than 500 clients over this period, the clinic adapted to a number of problems by modifying its format with an emphasis on flexibility and informality. additionally, the clinic implemented a survey in order to streamline the delivery of its advice. data was collected from over 460 startups over a two year period between 2013 and 2015 regarding the nature of their business as well as the type of legal challenges they faced. the study revealed the primary need for basic legal advice on a few select matters including most notably company structure. in addition to collecting data on startups in london, the clinic project is presented as both a model for successful clinical education and example of how the university sector can act to boost innovation and the entrepreneurial economy. i. introduction clinical legal education is now widely viewed as one of the most important contributors to law students’ employability, yet many law schools in the uk and abroad offer very limited exposure to such opportunities, particularly those which engage with commercial law. this is problematic because students struggle to satisfy law firms’ requirement of “commercial awareness” among their recruits during their law studies. this dilemma within legal education must be viewed in the context of the often under-appreciated need for low-cost commercial legal advice for many small businesses, especially those which have untested ideas or unproven track records of success, such as startups. just as law students require exposure to genuine commercial settings to apply their knowledge with a view to developing skills which will advance their careers, startups are needful of assistance from those with legal expertise who are willing to share it for free. operating legal clinics can be resource intensive and careful planning must be undertaken to ensure that the experience has maximum benefit for students and for the clinic’s clients. the role of lawyers to the success of startups is well recognized by commentators[footnoteref:4] much as it is understood that failure to appreciate the importance of legal issues and plan accordingly from an early stage can be fatal to a startup.[footnoteref:5] the need for governments to reduce startup costs in order to stimulate economic growth through self-employment and innovation have also been identified.[footnoteref:6] perhaps nowhere is this more evident than london, which is a hub of commercial activity in a wide range of sectors and which is host to a vibrant startup ecosystem, just as it is home to thousands of law students seeking exposure to commercial law. [4: a weinberg and j heine, counseling the startup: how attorneys can add value to startup clients’ businesses, 15 journal of business and securities law 39 (2014)] [5: r royse, dead on arrival: how to avoid the legal mistakes that kill your startup (dog ear publishing, 2012)] [6: u dulleck, p frijters and r winter-ebmer, reducing start-up costs for new firms: the double dividend on the labor market, 108:2 scandinavian journal of economics 317 (2006)] hourly rates for commercial lawyers in london can be upwards of £400 per hour[footnoteref:7] and legal aid is unavailable for civil matters. given the high cost of legal advice, early stage startups typically lack access to the very resources they require in order to protect their future interests until a time when their capacity to secure advice may be more feasible. this paradox is particularly troublesome given that studies have shown that it is often the least well-financed startups which demonstrate the most dedication to their business.[footnoteref:8] the implication is clear that the inaccessibility of legal advice operates as one of the main barriers to the innovation and self-employment that could otherwise be generated by the startup sector. [7: civil justice council costs committee, report to the master of the rolls: recommendations on guideline hourly rates for 2014 (may 2014) <https://www.judiciary.gov.uk/publications/master-of-the-rolls-decision-and-committees-report-on-guideline-hourly-rates/> ] [8: h hvide, j moen, lean and hungry or fat and content: entrepreneurs’ wealth and start-up performance, 56:8 management science 1242 (2010)] while the startup phenomenon itself, including london’s “silicon roundabout” cluster has received much attention from scholars[footnoteref:9], as well in the media[footnoteref:10], there remains surprisingly little research into the legal problems faced by early stage startups, nor, crucially the extent to which it can be serviced by legal clinics based in universities. better identification of the nature of the legal queries brought by startups to their lawyers could help contribute to the streamlining of basic legal services by legal clinics (as well as law firms), particularly if this identification were to include an understanding of the difference between the startups’ perceptions of their own legal problems (often based on misinformation) and reality. this could channel legal resources in the form of lawyers’ billable hours toward more efficient uses. most importantly, this information could also facilitate the delivery of legal advice to startups from non-traditional sources, such as pro bono clinics at universities such as the one which forms the basis of this study. a clearer understanding of these issues could help eliminate some of the costs associated with progression from early stage to maturity among startups, freeing up scarce resources to develop their businesses through the acquisition of talent or through market entrance. [9: e.g. , r dale and k zell, startup ecosystems: a look at entrepreneurship in london and boulder (15 oct 2014) <http://www.leedsscholars.com/wp-content/uploads/2014/10/startup-research-paper-final-draft.pdf> (accessed august 2015)] [10: e.g. b thompson, london tech hubs evolve to challenge silicon roundabout, the financial times, 16 june 2015] with these trends in mind, this article will outline the activities of start-ed, the pro bono law clinic for startups operating at city, university of london. in addition to dispensing legal assistance to more than 500 startups since its inception in 2012, the clinic also administered a client survey resulting in a significant quantity of data on the profile of the startups themselves and on the nature of the legal issues for which they sought advice. during this time the clinic also adapted its model of delivery from its original law-firm style format to a more flexible and informal one, an approach which has met with positive responses from users and ensured its longevity as an extra-curricular activity. ii. overview of the start-ed clinical education project as a legal clinic, start-ed was created in response to the demand amongst law firms as employers for their trainees to demonstrate well-developed “commercial awareness” combined with the lack of entrepreneurial education[footnoteref:11] within the city law school of city, university of london’s standard curriculum, including its pro bono initiatives. recognising the barriers faced by students from low income backgrounds in gaining commercial experience which is sought by legal employers, as well as the dearth of affordable legal advice available to startups alluded to above, we created start-ed in january 2012. it is the law school’s first and only commercially focused pro bono law clinic. initially sponsored by an employability grant from the uk higher education academy, the clinic subsequently received grants from the uk government’s intellectual property office and the uk legal education foundation. although there are a now a number of pro bono law clinics which offer legal assistance to startups and small businesses in the uk, start-ed was the first clinic in the uk devoted exclusively to startups and remains the largest in terms of the number of clients that it has served. university pro bono clinics targeting startups have a somewhat more established pedigree in the us where law clinics have been embedded in the curricula of law schools for some time.[footnoteref:12] the relative scarcity of pro bono law clinics for startups in the uk is remarkable given the growth of technology incubators in the uk over the past ten years,[footnoteref:13] possibly disclosing a lack of dynamism within british legal education or a diversion of teaching resources to more traditional clinical education projects, such as the free representation unit. [11: entrepreneurial education has become more popular in us law schools: j bell, validating the relationship between law and entrepreneurship: compelling commentary and programme development as entrepreneurship becomes an offering at us law schools around the country, 4 small business institute journal 1(2009)] [12: see s dangel and m madison, innovators esq: training the next generation of lawyer social entrepreneurs, symposium: entrepreneurial lawyering: solo and small firm training, law school post-graduate incubators and residency programs 83:4 university of missouri kansas city law review 967 (2014-15) at 970-971] [13: p miller and k bound, the startup factories: the rise of accelerator programmes to support new technology ventures, nesta discussion paper, june 2011 <https://www.nesta.org.uk/sites/default/files/the_startup_factories_0.pdf> ] start-ed was created in part based on our view that basic legal advice is all that is required for many startups to advance to the next stage and progress into a position to seek funding from venture capitalists. we theorized that such routine assistance can be readily dispensed by legally trained individuals such as students supervised by lawyers at relatively low cost, precluding some of the barriers associated with clinic projects at law schools such as the need for expensive, specialized training for students and multiple visits from clients. this is why, in addition to its societal function to dispense free legal advice to the startup community, start-ed can also be seen as a sector-leading example of the remarkable effectiveness of experiential learning.[footnoteref:14] most importantly it is an activity through which law students can gain exposure to real clients and participate in providing legal assistance under the supervision of qualified lawyers. the clinic was designed to target london’s vibrant startup ecosystem, regularly identified in the press and by politicians as one of the key engines of the uk’s future economic growth. city, university of london is exceptionally well placed to offer a pro bono service to this particular segment given its proximity to london’s silicon roundabout, an area with a high density of technology-oriented firms. [14: the values and practices of experiential learning have been identified by j roberts, beyond learning by doing: theoretical currents in experiential education (routledge, 2012) at 2-5] the format of the start-ed clinic was (and is) as follows: during weekly evening sessions (tuesdays) undergraduate and graduate law students worked directly with a lawyer who offered commercial legal advice to early stage startups. law students were enrolled in the start-ed clinic on a first come, first serve basis, initially attracting interest from about seventy students across all taught programs (including professional programmes), with twelve attending on each evening in groups of three or four students (three or four lawyers attended each evening). over its first three years of operation (2012-14) start-ed normally attracted between 8-15 clients per weekly session, with less in the early stages because of the clinic’s lack of recognition within the startup community at that time. most of the clients initially discovered the clinic through direct marketing at local startup incubators such as the nearby google campus where adverts were posted. over time the clinic’s outreach was done primarily through on-line professional networking websites such as meetup as well as word of mouth as our reputation grew. students were not assessed for their participation in start-ed as it was (and remains) an extra-curricular activity. there was always one full time member of staff present who normally acted as a greeter, although there was often two members of staff, with one assisting in the timing of the sessions. during the sessions, students conducted an initial intake interview with the client, outlining the nature of the service provided and determining the general nature of the business and potential legal matters raised. the lawyer would then join the session offering advice / assistance based on his or her assessment of the client’s needs, typically with input from the students over a 20-30 minute session with each client. the relatively short time spent with each client captures start-ed’s unique model of delivering high-level signposting of key legal issues that the startup has already encountered or may do so in the future, often putting the clients in a position to re-assess their approach and assess whether they need additional and more comprehensive legal advice from other sources. while clients were welcome to return to subsequent sessions for additional assistance, the service offered by start-ed was in no way intended to offer full legal representation nor did we form ongoing relationships with particular startups. this was always made clear to clients who signed a waiver at the beginning. students completed non-disclosure agreements to ensure the confidentiality of any sensitive commercial information disclosed by clients during the sessions. this format allowed us to maximize the number of startups we were able to help, giving students wide exposure to the practice of identifying legal issues and, interestingly, giving the clinic a representative overview of the nature of london’s startup scene. in other words, we were able to get a sense of the ideas that people were attempting to commercialize and how this process engaged with the practice of commercial law. this experience was intended to foster law students’ capacity to approach the clients’ needs from an entrepreneurial standpoint, anticipating what commercial problems may exist now or in the future, rather than exclusively focusing on legal matters. we observed that clients were often very eager to explain their ideas to a receptive but critical audience willing to offer constructive feedback, an environment which might possibly be unrealistic in the context of a lawyer billing by time. the application of entrepreneurial skills to traditional legal advice is now recognized as a key expectation that clients have of their lawyers[footnoteref:15] as well as a vital component of modern legal education often requiring more experiential type environments such as law clinics.[footnoteref:16] [15: weinberg and heine, supra note 1] [16: dangel and madison, supra note 9 at 969] the informal setting avoided some of the stress associated with traditional legal advice in an intimidating, office-like environment. moreover, the interplay between the students and the lawyer/advisor arrangement allowed students to develop their basic client-facing skills at their own pace. it also facilitated the application of the taught knowledge from their classes to actual legal problems. we conducted a number of mandatory training sessions for the student participants prior to the sessions commencing each term. these included instruction on corporate and commercial law and basic intellectual property law. through its popularity among students and its growing prominence in london’s startup scene, by 2013 the clinic had become one of the flagship extra-curricular activities offered by the city law school. through a grant from the legal education foundation, the clinic model has now (as of 2016) been expanded to three other law schools in the uk: liverpool john moores, birmingham city university and manchester metropolitan university. the clinic is a viable project in any university that is near to a centre of startup activity as a source of clients, which is now most of the large cities in the uk. iii. challenges and adaptations the chief problems we experienced during the clinic consisted of the non-attendance or under-attendance of either students, lawyers or clients. a contingency plan was arranged for each of these scenarios as follows. first, with respect to the non-attendance of lawyers (a regularly occurring problem since the lawyers were not paid for their participation and often arrived late or cancelled due to other commitments) the sessions would proceed in an even less formal manner, with clients discussing their business idea with groups of students and then students offering their thoughts, with the clear understanding that this was not genuine legal advice. this necessitated a more emphatic explanation of the difference between legal advice and legal assistance. during sessions without lawyers, clients were also given more time to network with each other before meeting the students, an approach which was met with much success and positive feedback from our clients as well as the students. in sessions without clients, which occurred on a few occasions particularly during poor weather or nearer to christmas, the sessions were re-structured as informal discussions between students and lawyers with lawyers given the opportunity to talk about their practice and some of the legal issues they commonly face which could be of interest to startups. one of our attending lawyers led an impromptu conversation on intellectual property issues commonly faced by tech-oriented firms. these informal sessions were invaluable because they served the purpose of training for students for when they met actual clients. of course these arrangements also served the useful purpose of allowing students to interact with potential future employers who were able to give them career advice. despite the fact that the clinic was non-assessed, there were no sessions in which there was non-attendance by all students – we never had less than five students present at each session. the volume and dedication of students, while laudable, posed one of the key difficulties associated with start-ed in its second year when it had become a popular extra-curricular activity at the city law school. somewhat of a victim of its own success, clients reported to us that having large groups of students sitting with them could be intimidating. but faced with pressure to include as many students as possible because of the beneficial impact upon student employability, there was little we could do to decrease student numbers, particularly when the number of startups attending was small. we responded to this problem by emphasizing the informality of the process, having sessions on couches rather than around tables and specifically telling our students not to wear formal clothing (in our first year we had urged students to wear business attire when attending the clinic). the setting of the clinic itself (the law student common room) was a much less formal one than that which we used initially (break-out meeting rooms in a library which resembled board rooms). we adopted a more easy-going manner when greeting clients at the door and encouraged everyone to relax during the sessions. this was a very successful approach which appeared to be in keeping with the working environments associated with well-known startups like facebook and google. another problem which we encountered during our first two years was managing the expectations of the clients who had attended as a consequence of our marketing on various social media websites, including notably meetup. this website organizes “events” such as lectures or networking parties rather than meetings in the conventional sense as would occur between a lawyer and her client. consequently many of the clients attending expected that they would passively witness a lecture rather be pressed to explain a business they had started and for which they sought precisely formulated legal queries. accordingly many of the clients again reported that they felt “put on the spot” and that they were not ready to receive formal legal advice. we dealt with this issue again by reducing the formality of the process and encouraging the clients to network with each other in the waiting area before they met with the students. we would modify the language we used by saying that the clients would “have a chat” with the students and referring to the clients themselves as “startups” or “founders.” in this way they did not perceive themselves as clients but rather as individuals attending an event in which they would acquire legal knowledge which would or could help them. there were ongoing issues about the level of participation by our law students, with some adopting a more passive role and some a more active role. typically our postgraduate students spoke more often and tended to have more confidence in terms of their legal knowledge (although this confidence was not always well-placed). this remains one of the pressing problems with having a non-accessed clinic – it is difficult to make certain that students are actually proactively learning. in one sense this could also be viewed as a strength because it allowed students to get involved at their own pace and within their own comfort zone. we encouraged the lawyers to try to get each student involved and curiously many of the clients wanted to hear what each student had to say, but this was impossible to ensure and could not be monitored. we have considered turning the clinic into an assessed module going forward, however we are concerned that this may interfere with the flexibility engendered by the informal and flexible processes discussed above in response to the particular situation which arises during each session. as a final problem, as soon as we realized that the clinic was successful and would become a permanent fixture at the city law school there arose issues of legacy planning. we did not intend from the outset that the clinic would last beyond one or two years and the time commitment involved became considerable as the clinic grew. despite its popularity, our department committed minimal resources to it such that a regular organizer could not be hired. this problem has been resolved through the dedication of our former student participants in the clinic who have been willing to donate their free time to assisting in the planning and running of the clinic sessions each week. in order to ensure that such individuals are readily available for the next year, we recruit from among our existing student participants, two individuals who are willing to act as organizers for the following year and they are paid by the university. we found that this format has the added advantage of introducing new students to former students who can share their experiences. while applying a flexible approach to our clinic sessions addressed many of our problems, we also recognized the need for our student advisors and lawyers to be able to adequately respond to legal queries, which would require that we were properly prepared given our limited time and resources. we felt that this could be achieved by collecting data on the nature of the legal queries which our clients were bringing to the clinic each week. iv. client surveys this section will expand on the client surveys conducted by start-ed which, as indicated above, was used as a tool to tailor future advice sessions for the purposes of streamlining the clinic services. it should be noted that a second survey is being conducted among our students which should yield insight into how students enjoyed the experience. the data used in this study undertaken through the start-ed sessions described above was collected from surveys which were undertaken with the clients attending each week. the vast majority of startups attending completed the surveys giving rise to a substantial body of data regarding the nature of the individuals seeking the advice of the clinic as well as, by implication the nature of the startup ecosystem in central london. one survey was completed for each startup attending, even if more than one individual was present on behalf of that business. in total 460 surveys were completed over the two year duration of the study. as far as we are aware, our study through the start-ed clinic was the first of its kind in the uk and possibly the most comprehensive anywhere in terms of the volume of data collected and in terms of the legal issues that startups encounter. it should be noted that a similar study on the nature of legal queries brought to university pro bono clinics focusing on startups was undertaken at uc hastings college of the law during the 2014-15 academic year.[footnoteref:17] [17: a armitage, e frondorf, c williams and r feldman, startups and unmet legal needs, utah law review [forthcoming] <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2628900> (9 july 2015)] the survey was handed to each of the clients upon arrival and they were informed that it was optional and that they only needed to answer the questions they wished. the full list of survey questions was as follows: 1. name of start-up/project: 2. description (1 sentence summary): 3. website (if applicable): 4. your age: <25 |_| 25-35 |_| 35-50 |_| 50+ |_| undisclosed |_| 5. your gender: m |_| f |_| 6. date started: 7. sector: social media/webdesign |_| games |_| financial tech |_| consumer |_| marketing/advertising |_| consulting |_| social enterprise |_| fashion |_| other (please specify) 8. postcode where majority of work is carried out (business location, office/home; where you travelled from to here): ________________________________ 9. size of team (number of people): 10. looking for interns? yes |_| no |_| if yes, please provide contact details (name, phone, email): __________________________________________________________________________ 11. how did you hear about us: meet-up group |_| flyer |_| google campus |_| word of mouth |_| other (please specify)________________________ v. survey results & analysis several issues emerged from the data collected during our study which allowed inferences to be drawn regarding the nature of startups in london and, most importantly, the types of legal problems that they face. our primary findings related to the nature of the legal queries which were most commonly raised by our attendees. a. primary results: difficulties with company structure still evident we found from our data that, despite the extensive support in london from national and local governments in terms of setting up businesses, many of the startups which attended the clinic sessions (53%) still had difficulty in determining the most appropriate corporate vehicle and in structuring their companies. these are among the most basic forms of legal advice, and were often capable of being addressed to full client satisfaction by students in intake interviews before progressing to the advice session with a lawyer. in the context of multiple business partners, even where attendees appeared able to incorporate a business entity with relative ease, they still had difficulty determining appropriate division of ownership rights and formulating agreements between the respective shareholders. such team-based startups found general issues relating to shares and options extremely difficult to understand and manage. in other words, the majority of queries coming from attendees at the clinic related to the creation of the business entity itself, not the protection of assets or liability matters regarding its relationship to customers. confirming the study undertaken by uc hastings noted above, in numerous instances our lawyers and students had to diagnose the nature of the legal issues in question based on the attendees’ statements, as the attendees themselves often had difficulty identifying these issues on their own. given this trend in the legal advice most commonly sought by our clients at the clinic, it would appear that there may be a greater need for law clinics to provide more complete information to startups about not simply registering a business but also basic information concerning division of ownership rights, corporate structure and decision making and shareholders’ agreements as well as option documentation to clarify how startups might reward partners, employees and shareholders in a manner that is less legally complex. after queries regarding company structure, the most significant area of concern related to vendor contracts and terms and conditions. approximately 21% of clients had such queries. this covered a wide range of contractual terms from terms and conditions on websites of recently developed startups to terms and conditions as part of contract negotiations with customers. it was a positive reflection of the startups in attendance that many of the terms and conditions which they required assistance with covered potential engagements with customers. this suggested that many of them already had a product in the market and were actively in discussions or negotiations with potential clients. in contrast, there were very limited queries relating to employment, most likely indicating that few startups were in a financial position to hire support outside of the core team. as the third leading issue, approximately 12% of clients had queries related to intellectual property. this trend indicates that many startups at least perceive that they have developed some kind of novel idea worth protecting, although more often than not our attendees had not actually created rights worthy of legal protection, demonstrating the gulf between our attendees’ perception of their situation and the legal realities as identified by our lawyers and students. some of the intellectual property queries stemmed from the complexity of the patenting system in the uk in particular as it applied to software. our startups showed more awareness of trademark requirements and a number were familiar with the system through which a trademark can be filed online through the uk government website.[footnoteref:18] however, the attending startups were less aware of the additional support and guidance that the government provides in the context of classification of trademarks and in responding to queries where there are similar marks. finally, our startups demonstrated limited awareness of the government’s search capabilities to establish whether a trademark had been previously registered – perhaps once of the most fundamental (and important) checks before establishing business names. [18: the intellectual property office: <https://www.gov.uk/government/organisations/intellectual-property-office> ] b. secondary results: the nature of the startups themselves as discussed above, one of the objectives of this study was to gather information regarding the nature of the individuals who were starting their own businesses in london as well as the precise location and type of business activity. this could help us target our marketing initiatives as well as improve the delivery of our clinic service. it was also used as the basis for our introducing a less formal atmosphere during the clinic sessions. first, our study revealed that the 25-35 year old age bracket was by far the most common one to seek legal advice through our clinic. fifty three percent of the surveyed group fell within this range. the next most prevalent category, falling between the ages of 35-50 years old made up only 16% of the total surveyed.[footnoteref:19] only 6% of our clients were over the age of 50. these results may be attributable to several facts. perhaps most obviously, this trend may reflect that starting a business based on a novel idea (a startup) is less appealing to older people, many of whom are already established and have secure employment. it may also indicate that older people who are seeking to become self-employed have sufficient resources to hire their own lawyers or that they have extensive life experience or networks such that they do not require basic legal assistance from a pro bono clinic in a law school. it may be equally possible that the format through which we advertised the clinic (primarily on-line as well as posters and flyers in office hubs) was more conducive to attracting younger age groups. the younger age group seemed particularly responsive to our more informal style of discussion on couches rather than around tables. [19: for data on age in which there was more than one individual present for each company, we asked clients to nominate a leading representative for the purposes of the study.] secondly, our data showed that in terms of the male/female split among clients attending our clinic, there were substantially more men than women (60% male to 38%, with 2% of businesses comprising men and women combined). this fact broadly concurs with trends observed by larger studies conducted in the us.[footnoteref:20] encouragingly, the gender gap observed in our study was not as substantial as that found in other british studies which have reported female participation in self-employment to be less than one third that of men.[footnoteref:21] the difference in these figures may signify that women are more comfortable seeking legal advice than men, or perhaps more likely, that they are more likely to seek free legal advice from clinics situated in universities such as ours than most men. indeed, a study of the british startup ecosystem found that men are 86% more likely to be funded than women[footnoteref:22], suggesting that female founders are more likely to be needful of free assistance than their male counterparts who can pay for their own lawyers. in terms of the type of business focus by gender, our study found that there are substantially more men in fintech (financial services technology startups) than women (a ratio of 14:3) whereas there were far more women in fashion startups than men (a ratio of 7:2) which may be taken to confirm traditional gender stereotypes. we note that there was a near perfect gender balance among our student participants (as well as our advising lawyers), which occurred accidentally as we did not select students or lawyers on this basis. [20: v kuppuswamy and e mollick, hubris and humility: gender differences in serial founding rates ssrn.com/abstract=2623746 (26 june 2015)] [21: labour force survey, office of national statistics (uk) 2013. ] [22: a guttman, why men are 86% more likely to be funded than women, forbes entrepreneurs, (15 september 2015) <http://www.forbes.com/sites/amyguttman/2015/09/15/why-men-are-86-more-likely-to-be-funded-than-women/#4d860dd22bc7> ] third, we found that only 30% of our clients were solo entrepreneurs, with the majority of businesses attending comprised of between 2-4 individuals (48%). fifteen percent had more than 5 individuals working on the project. the preponderance of teams coming to our clinic was encouraging given that there is evidence to suggest that solo entrepreneurs are less likely to succeed in business than teams.[footnoteref:23] the relatively high incidence of teams using our service may also reflect the fact that there is some apprehension associated with seeking legal advice, or indeed attending an event with strangers on one’s own. people tend to be more confident in groups. if most startups are indeed characterized by teams rather than individuals, it might be worthwhile for university clinics or business/law faculties to establish match-making type programmes in which individuals with certain talents can be paired with those with other abilities in order to create “synergies” which could lead to profitable team-based businesses. again, group-based clients seemed particularly well-suited to the casual discussion format as well the networking opportunities at the start of each session on which we placed greater emphasis over time. [23: d klonowski, strategic entrepreneurial finance: from value creation to realization (routledge, 2015) at 54. start-ed did not collect data on the success or lack thereof of the startup in terms of securing funding or any other metric going forward.] fourth, social media startups were the most popular sectors using our clinic, with over 30% operating in this area. as a representative sample of startup activity in london, our study confirms that the london startup ecosystem is very much characterized by social media startups, despite the city’s image as a hub of technology or financial services-oriented entrepreneurialism. this trend may be explained by the fact that costs associated with social media startups are lower. generally speaking there is no need for investment in equipment or inventory other than a website. businesses sensitive to such costs would likely be the ones which would need to resort to a free legal advice clinic rather than hire their own lawyers. the popularity of social media startups may also reflect the community which was most responsive to our clinic’s marketing, namely individuals who use social networking sites such as meetup or who have links to universities or law students. to some extent this trend may also be driven by popularity of social media platforms among younger age groups as well as the pervasive presence of the young billionaire archetype in social media startup mythology. it is clear that financial sector startups, which one might more readily expect in london given its status as a global financial hub, face their own set of challenges, including most notably extensive regulation. this may explain why less than 10% of our attendees were working on projects in this sector. still, one might expect that fintech startups would accordingly be the most likely to seek legal advice for compliance purposes. recent uk government initiatives such as grants for cybersecurity[footnoteref:24] and compliance assistance may be supporting many fintech startups, thereby making them less likely to seek free legal advice. furthermore, it is worth noting that very few bio technology firms attended our clinic, which may indicate that either this sector is less vibrant in london than is often thought[footnoteref:25] or that such firms, which tend to require significant capitalization, are more likely to secure their own funding and once this is obtained will not require free legal advice. alternatively such firms may embedded in universities where in house legal support is made available to these so-called spinouts. [24: new £5000 government grant for small business to boost cybersecurity, (16 july 2015) uk department for culture, media and sport, https://www.gov.uk/government/news/new-5000-government-grant-for-small-businesses-to-boost-cyber-security] [25: d roland, london to complete “golden triangle” of uk bioscience, the telegraph (5 april 2014)] finally, it appears from our data that london’s silicon roundabout cluster of startup activity remains a key hub, despite reported migration of startups to other parts of london.[footnoteref:26] most of the clients attending the clinic reported place of business addresses in or near london’s so-called silicon roundabout (near the old street underground station) at the boundary between the city of london (effectively the financial district) and the area of shoreditch. this finding is consistent with a study which revealed that this area is the most popular postcode for new technology businesses in the uk.[footnoteref:27] of course, this zone is also the one in which city, university of london (and the clinic itself) is located, leading to another possible and somewhat more banal interpretation that startup owners do not want to travel far for legal advice, even if it is free. the second most popular place of business for attendees was central london (westminster/mayfair) capturing the density of that area’s population as well as its association as another cluster of significant startup activity. other popular areas of london in which our attendees’ place of business was located were knightsbridge (associated with affluence and retail) and adjacent to canary wharf (a second financial district). the clumping of our clients into distinct areas rather than an even spread across the london area suggests that clustering may be a genuine phenomenon for startups. we will continue to target our clinic promotion initiatives as these zones. [26: thompson, supra note 7] [27: h williams, new study reveals london’s top tech post codes, startups, startups.co.uk, 15 september 2015 <http://startups.co.uk/new-study-reveals-londons-top-tech-postcodes/> ] v. conclusions: policy implications for clinic practice legal advice clinics in law schools are well placed to provide commercial legal assistance to the growing number of self-employed startups and in so doing offer an invaluable experience to law students seeking elusive commercial awareness. for their part, startup founders often find themselves in the invidious position of choosing between short-term and long-term prosperity. their company’s long term health would benefit from a large investment in legal advice upfront, but such expenditures are impossible where there are insufficient resources available at the early stage before the project has been identified as viable.[footnoteref:28] for law clinics, there is often simply not enough time or sufficiently knowledgeable advisors to provide adequate legal assistance in brief sessions. [28: armitage, frondorf, williams, and feldman, supra note 15 at 15] a plausible resolution to this dilemma is for clinics to follow start-ed’s model by identifying the basic legal issues which appear to face most early stage startups and to train students, supervised by qualified lawyers, to administer this high level advice for free. this serves the dual purpose of firstly providing routine but essential legal assistance to low-resourced firms in order for them to proceed to the next stage of their development when more comprehensive legal representation is warranted and affordable and, as a subsidiary benefit, offering experiential entrepreneurial education to law students potentially enabling them to be more employable at modern full service firms. such environments could also facilitate a future training model for junior and unqualified lawyers to meet the demanding technological and commercial awareness requirements of modern law firms. although the value of superficial preliminary legal assistance for early stage businesses has been questioned by commentators, in particular in circumstances where more sophisticated agreements are needed,[footnoteref:29] our study suggests that this this type of advice, such as that relating to basic matters like company structure, is still very much needed by startups in london. at an early stage this basic information is often the extent of the advice that is actually needed in order to progress to the next level of business development which may include marketing, purchasing equipment or hiring employees. in many respects our findings complement those of studies which have shown that in addition to requiring basic legal advice concerning business structure, startups also benefit from assistance in the identification of potential future risks, such as controlling liability through establishment of effective terms and conditions on websites. this is likely because of the high degree of uncertainty and unpredictability under which these organisations operate relative to more established businesses.[footnoteref:30] on the understanding that the businesses attending our clinic are most likely those with the least resources (otherwise they would hire their own lawyers) the fact that we were able to offer simple advice in an often formulaic manner was an effective use of the clinic’s lawyers’ as well as the clients’ and students’ time. this viewpoint can be supported anecdotally by the fact that some of our clients reported that they had contacted specialist lawyers previously without satisfaction and expressed plans to do so again in future, optimistic that they would have better results once equipped with the information gained from the clinic sessions. commentators agree that poorly-resourced startups are in many respects ill-suited as clients for specialist lawyers billing by the hour, with clients accordingly pressured into rushed communications which fail to capture their actual, often rudimentary concerns. this may be one reason why entrepreneurs are often highly sceptical of the value of the lawyer to their business.[footnoteref:31] often all they need is a simple answer to a basic question with some helpful signposting as to potential problems that may arise in the future. [29: ibid at 16] [30: s sommer, c loch and j dong, managing complexity and unforseeable uncertainty in startup companies, 20:1 organizational science 118 (2009)] [31: weinberg and heine, supra note 1 at 46-47] university law school clinics seeking to assist the startup sector should focus their resources on providing clear information regarding basic structural matters beyond simply incorporating companies, mindful of the fact that many startups are characterized by groups rather than individuals, which raises a different set of legal issues concerning share and reward structures. this could include more straightforward information about shares, options and company capitalization tables (a spreadsheet showing the ownership breakdown of the company), for instance, perhaps using real life case studies in a more digestible form. it could also include online chat resources where standardized information on these topics can be disseminated on a case by case basis. as poorly-resourced startups tend to be operated by younger people, it makes the most sense to dispense this information on-line and possibly via professional networking events like start-ed itself, which are especially popular in larger urban centres like london and will hopefully be replicated successfully in liverpool, manchester and birmingham following our model. moreover, targeting clusters of startup activity may be both an effective and efficient strategy for government policies attempting to incentivize entrepreneurialism, as it would appear that startups do tend to be established in identifiable geographic zones and will likely seek services offered in close proximity. if it proves true that legal advice sessions among strangers may be an intimidating setting and in particular that this poses a barrier to females attending such sessions, then it may be worthwhile to offer female-only clinic events through start-ed in the future. perhaps most crucially, clinics must be able to offer informal and flexible sessions which can adapt to the situation which arises on each night in terms of the number and nature of the clients in attendance. 105 reviewed article: teaching and learning in clinic transferring power: a reflective exploration of authentic student-centred small group work in clinical legal education elaine campbell1 northumbria university, uk abstract researchers use self-reflection and personal narrative as a lens through which to identify thoughts and feelings about lived experience. this article uses reflexivity in order to capture, critique and develop small group work practice in clinical legal education. it draws on the concept of constructivism and queries whether small group work in a clinical setting can truly be a paradigm of student-centred teaching. at its core, it argues that an authentic studentcentred approach is best achieved when power is transferred to clinic students and they are given the opportunity to lead their own group work. introduction the notion of deep learning associated with autonomy is almost universally recognised as the goal of educational practice in higher education. deep learning encourages active participation, promotes autonomous learning and allows dynamic formation of knowledge and understanding. students who deal with a task using a deep approach are interested, challenged and afforded a sense of importance.2 in stark contrast, surface learning is teacher-centred and controlled. the emphasis is on 1 elaine campbell is a solicitor tutor at northumbria law school. she is also to be found on twitter @alawuntoherself. 2 biggs, j. and tang, c. (2011) teaching for quality learning at university. 4th edn. society for research into higher education and open university press, p.26. 1 repetition, content coverage, and a step by step approach to attainment of learning outcomes facilitated by rote learning. 3 this arises largely as a consequence of attempting to complete tasks quickly in order to meet course requirements.4 deep, autonomous learning is particularly linked to piaget 5-inspired constructivist philosophies. the central tenet of constructivism is that students develop conceptual frameworks or “schemas” within which they can explore ideas and solve problems.6 educational programmes based on constructivist principles, such as clinical legal education, see students as individual learners with the ability to build their schema through experience and reflection on that experience. the student is at the centre of the learning process, and the idea is that the power is transferred to them. constructive pedagogies also make use of groups as a route to this type of learning. proponents of group work argue that it gives students the opportunity to actively explore, clarify and analyse perceptions, knowledge and understanding, and that it encourages student-student interaction. 7 there is an assumption that groups are automatically constructivist and that the power lies with the students in that group. it so follows that if we place group work into an experiential setting like clinical legal education, then this is inherently a model of student-centred teaching. but is this truly 3 see e.g. stewart, m. (2004) “learning through research: an introduction to the main theories of learning” 4 john moores university learning & teaching press 7; biggs, j. and tang, c. (2011) teaching for quality learning at university. 4th edn. society for research into higher education and open university press. 4 biggs & tang, supra n2, p.24. 5 see e.g. piaget, j. (1950) the psychology of intelligence. london: routledge and kegan paul. 6 for a useful, albeit brief, summary of the history of constructivism, see biggs and tang supra n. 2 pp 22-23. see also perkins, d. (1999) the many faces of constructivism, educational leadership, 57(3), p.6, for an engaging exploration of the reasons for the rise in constructivism in teaching and learning. 7 see collier, k.g. (1983) the management of peer-group learning: syndicate methods in higher education. guildford: society for research into higher education; johnson, d.w. and johnson, r.t. (1990) learning together and alone: co-operation, competition and individualization. englewood cliffs, nj: prentice-hall. 2 the case? in this paper, as well as drawing on the contents of a reflective journal, i use my personal voice and experiences as a clinician to critically reflect on that assumption. i argue that an authentic student-centred approach to clinical small group work (commonly known as rounds or firm meetings) is best achieved when the power that the clinician holds is transferred to the students and they are able to design and deliver sessions themselves. however, i do not pretend that this change in practice is not without its tensions. those tensions can include the fear of relinquishing control and apprehension about student choices. concerns as to how students (particularly those less inclined to contribute to group work) will cope with leading the group can also be anxiety-inducing. by exploring these issues, my aim is to provide a lens through which we, as clinicians, can capture, critique and develop small group work practice. part 1: student law office: learning by doing the student law office at northumbria university began as a part of the legal methods and institutions course in 1981. situated in a small room in the basement of the law school building, it comprised a handful of students and two supervisors who provided advice to students at the university. in 1992, professional rules changed and the clinic was able to open its doors to members of the public.8 today, the student law office is compulsory assessed module for all final year law students undertaking 8 for a detailed history of the student law office see hall, j., sylvester, c. and hall, e. (2004) “problem based learning and clinical legal education: what can clinical educators learn from pbl?” 6 international journal of clinical legal education 39. 3 the four year m law (exempting) degree9 at the university. students are divided into “firms” of six, with each firm having a designated supervisor. all supervisors are senior lecturers in the law school and are practising solicitors, barristers and caseworkers. each firm deals with a specific area of law.10 in order to provide an idea as to size, in the 2013-14 academic year 176 students worked in the student law office under the supervision of 24 staff, there were 767 new enquiries and the compensation recovered for clients exceeded £130,000. madhava menon talks of the “beauty”11 of clinical legal education as a pedagogic technique: “its focus is on the learner and the process of learning”.12 university based legal clinics come in various shapes and sizes but for all of those clinics the key theme is that students are being exposed to the reality of providing legal services to members of the public. it is a combination of hands on training and the provision of access to justice, which also allows for reflection on the ethical values of the legal profession. the students take responsibility for their cases and clients; taking instructions, undertaking intense practical legal research, advising the client face to face and in writing, drafting documents, managing a client file, dealing with third parties such as other solicitors or persons with whom the client is in dispute, and, in some instances, providing representation at court. the “commitment to shifting the focus of student 9 this is an integrated masters programme where students obtain a masters level qualification as well as completing the qualifying law degree and obtaining an exemption from the vocational legal practice course. 10 business & commercial, employment, civil litigation, family, housing, welfare benefits, crime, planning. 11 madhava menon, n.r. in giddings, j. (2010) “why no clinic is an island: the merits and challenges of integrating clinical insights across the law curriculum” 34 washington university of journal of law and policy, p. 267. 12 ibid. 4 learning from the classroom to the real world”13 distinguishes clinic, both theoretically and practically, from traditional teaching. my view is that clinic facilitates the cognitive and emotional development of students in a way that chalk and talk education cannot provide. a student could, as ward notes, build “an entire law school career” from “text books, occasional attendance in large lecture halls, and late semester cram sessions”.14 this is the personification of a surface approach to learning. contrast this with giddings’ definition of clinical legal education an intensive experience which enables each student to receive feedback on their contributions and to take the opportunity to learn from their experiences through reflecting on matters including their interactions with the client, their colleagues and their supervisor as well as the ethical dimensions of the issues raised and the impact of the law and legal processes 15 and the benefits of the pedagogy are clear. it is worth pausing for a moment to consider the relationship that students and clinical supervisors have. the traditional teacher/student relationship has been described as two people rowing a boat to a distant shore.16 the teacher’s role is to steer, pointing out the goal and encouraging the student, but she must not take the oars. the student’s role is to row; approaches, pauses and speed are entirely in their control. superficially, this appears to be in line with the ideals underpinning clinical teaching. however, in practice, when dealing with live client work the realities are very different. there is an inherent tension between the educational goals and the needs of 13 bloch, f.s. (2011) the global clinical movement, oxford university press, p. 271. 14 ward, j. (2009) “one student’s thoughts on law school clinics” 16 clinical law review, p.490. 15 giddings, supra. n. 11, p.265. 16 tiberius, r.g. (1999) small group teaching: a trouble-shooting guide. kogan page, p.100. 5 the client. it is not always possible to allow the student to have ultimate control over the sequence and pace of the legal advice. at times, the supervisor needs to take the oars and do more than just encourage the student, lest the client’s interests are compromised. in this sense, the student law office is a place of transition. a clinical supervisor is a task and socio-emotional leader.17 she is concerned with productivity, but must also have a care for the educational life of her students. her function encompasses teacher, assessor, role model, colleague, administrator, manager and counsellor.18 because of this students can find themselves talking to their supervisor on a “completely different level”.19 students are not quite students, but they are not quite colleagues either. the goal is to make sure that the rowing boat gets to its destination; sometimes the student can take the rudder, sometimes the teacher needs to help the student to drive the oars through the water. small group sessions: “firm meetings” due to the nature of live client work, the teaching programme in the student law office deviates from the traditional design of lecture followed by seminar/workshop. as soon as students arrive in the student law office they are introduced to their fellow firm members and their supervisor. their supervisor then provides the student with a prospective client enquiry and they begin their journey towards assisting that 17 hare, a (1996) “roles and relationships”, in hare, a., blumberg, h., davies, m., and kent, m. (eds) small groups: an introduction. praeger, p. 87. 18 mcleod, s., romanini, j., cohn, e.s., and higgs, j. (1997) in mcallister, l., lincoln, m., mcleod, s. and maloney, d (eds) (1997) facilitating learning in clinical settings. stanley thornes (publishers) ltd, pp.53-59. 19 gowland, j. and mckeown, p. (2011) in kerrigan, k. and murray, m. (eds) a student guide to clinical legal education and pro bono. palgrave macmillan, p.89. 6 person. supervisors regularly communicate with the students in their firm, often on a daily basis. e-mails are exchanged and informal discussions take place in the student law office or the supervisor’s office.20 there is an almost constant stream of formative feedback.21 the only time that students are compelled to come together with their fellow firm members is in weekly 50 minute firm meetings. they take place in one of the purpose built interview rooms in the student law office. from the students' perspective, firm meetings have an additional importance compared to the seminars and workshops they may have experienced during their degree. this is because the level of student input into firm meetings is part of the student law office assessment criteria. 22 for example, to obtain an upper second grade (60-69%) for the descriptor relating to firm meetings, a student must have demonstrated that s/he has made a "good effort to contribute to firm meetings including discussions of other people’s cases and general discussions". 23 firm meetings are not mini-lectures, nor is there a set of materials or session outlines that must be followed. when supervisors join the student law office, they are provided with examples of firm meeting exercises which experienced supervisors 20 i have shared an office with a number of clinical supervisors and during the course of a working day there is usually a steady stream of students who want to “pop in” for a “chat” about their client cases. 21 carol boothby recently reflected on the hundreds of emails she exchanges with students each year, most of which have casework attached either for review (from the student) or providing feedback (from carol): boothby, c. and campbell, e. (2015) from rote to realism: the role of clinical legal education in providing best practice in assessment and feedback [paper delivered at association of law teachers’ 50th annual conference, st. david’s hotel, cardiff]. 31 march. 22 the assessment criteria is divided into 10 descriptors: autonomy and efficiency; knowledge and understand of the law/legal practice; strength of oral communication skills; strength of written communication skills; strength of research skills; commitment to clients and the student law office; case management and strategising; organisation: time and file management; teamwork skills and contribution to firm meetings; and understanding of client care and professional conduct. 23 student law office assessment criteria for practical work, northumbria university, 2014-2015. 7 have tried and tested but each supervisor is left to determine how they will utilise their meetings. weekly meetings are used for a variety of purposes. some supervisors use meetings to provide feedback on case work. others use the time to discuss and develop concepts such as social justice and pro bono practice. certainly, there is a sense in our clinic that supervisors are actively looking for new ideas and ways in which to engage students in those sessions. i myself have wandered into other supervisors’ rooms to ask if they had “any good firm meetings”. in terms of my own practice, i tend to use firm meetings as an extra opportunity to explore concepts and tease out interesting issues relating to clinic, the profession, and skills. during my time in the student law office my firm meetings have dealt with office procedure and induction, letter writing skills, commercial awareness, reflections, interviewing skills, dealing with difficult clients, solicitor negligence, discrimination in the profession, the difference between clinic and private practice, finding a new patron saint of lawyers and project management skills. i also use meetings for case reviews, where students update each other on what is happening on their client cases. other supervisors have held advocacy competitions, taken students on visits and created interactive skills and reflection-centred exercises. 8 group work and a student-centred approach in terms of learning environments, small groups are thought to be “ideal”. 24 collier remarks on the “almost startling shift” from surface to deep learning when groups are formed and utilised.25 others note that the benefits of group work include heightened levels of motivation, a greater sense of satisfaction, a stronger sense of mutual obligation amongst peers and a better capacity of applying learned concepts in new situations. 26 drawing on the constructivist tradition, groups are supposedly the vehicle within which students can build their own knowledge rather than simply acquiring it ready-made. 27 it is strongly associated with the move from teachercentred learning to student-centred learning, the features of which are set out below. teacher-centred student-centred emphasis on superficial understanding emphasis on deep understanding passive student active student student not given responsibility student given responsibility creativity discouraged creativity encouraged teacher as authoritarian interdependence between student and teacher student replicates what they have been taught student has a reflexive approach low level of student choice high level of student choice closed, directive questioning open, non-directive questioning power primarily lies with the teacher power primarily lies with the student the student-centred approach emphasises activity, choice and responsibility, or, put simply, autonomy. the concept of autonomy in the context of learning has been explored vociferously over the decades. benson’s excellent history of the pedagogic 24 exley, k. and dennick, r. (2004) small group teaching: tutorials, seminars and beyond. routledge, p. 2. 25 collier, g. (1983) “syndicate methods placed into context” in collier, g. (ed) the management of peer-group learning: syndicate methods in higher education. society for research into higher education, p.11. 26 ibid., p.10 27this observation is not confined to higher education. there are numerous studies which have found that children of lower than average ability, when working in teams, gained either the same or more knowledge than more intelligent children working alone. see aebli, h (1963) didactique psychologique paris: delachaux et niestle and oldfield, w.j (1964) individual versus group methods in programmed instruction, both referenced in amaria, r.p., biran, l.a. and leith, g.o.m. (1969) “individual versus co-operative learning ii” educational research 11. 9 and psychological research relating to autonomous learning from rousseau (“suggest problems but leave the solving of them to him”28) through to the emergence in the 1990s of the link with the notion of interdependence and the learner being responsible for his conduct in the social context 29 demonstrates the depth of the theoretical framework surrounding autonomy. there is even some speculation as to whether “autonomy” is the correct term. candy has identified 30 different phrases, including: independent learning, learner controlled instruction, non-traditional learning, participatory learning, self-direction, self teaching and self organised learning.30 autonomy is often explored as a capacity issue: students have the capacity to be autonomous, or not. 31 whilst this seems logical, it is important to recognise that autonomy is not a personality trait. in order to develop such a capacity students need to be allowed to take charge of their own learning. there must be a shift in power from teacher to student. this does not mean that the student needs to have completely free rein. as candy suggests, teachers and students occupy positions on a continuum from teacher-control at the one extreme to learner control at the other “where the deliberate surrendering of certain prerogatives by the teacher is accompanied by the 28 boyd, w. (1956) emile for today: the emile of jean jacques rousseau. london: heinemann in benson, p. (2011) teaching and researching autonomy. 2nd edn. pearson education limited, p.28. 29 see kohonen, v. (1992) ‘experiential language learning: second language learning as co-operative learner education’ in d. nunan (ed.) collaborative language learning and teaching. cambridge: cambridge university press, pp.14-39. 30 candy, p. (1987) evolution, revolution or devolution: increasing learner-control in the instructional setting, in boud, d.j. and griffin, v.r. (eds) appreciating adults learning: from the learner’s perspective, london: kogan page, pp. 159 -78. 31 holec, h. (1985) “on autonomy: some elementary concepts” in riley, p. (ed) discourse and learning. london: longman, pp.17390. 10 concomitant acceptance of responsibility of the learner”.32 as the figure above shows, the student-centred approach requires that power lies primarily with the student. due to the notion of a transfer of power, there exists an assumption that groups are automatically constructivist and facilitate a student-centred approach to learning. this is also true of experiential learning. therefore, the inference must be that small group sessions in a clinical context are the epitome of such an approach. this was my argument when i was working towards a professional teaching qualification33, and i was asked to evaluate my own teaching practice and that of the student law office in general. initially, i felt proud that the teaching underpinning the student law office experience refrained from seeing students as empty vessels to be filled with knowledge, a feature of the much maligned behaviourist theory.34 however, when reflecting in more depth about firm meetings in particular, i was struck by the lack of power that the students had. i noted the following in my reflective diary: i wonder whether the module, and my style of teaching, is truly an exemplar of constructivism. are my students really the masters of their own destiny? no. the module determines that there will be weekly meetings. i decide what happens in those meetings... this is learning by way of a continual process grounded in experience, but it is a tightly controlled experience. in collier’s study on group work, a student noted the change from a didactic lecture session to working in a small group. he said, “we have a leader who co-ordinates our work and guides our thinking and planning, yet the hierarchy has become blurred as 32 candy, p. (1991) self-direction for lifelong learning. san francisco, ca: jossey-bass. 33 postgraduate certificate in higher education practice. this was assessed by way of reflective portfolio and viva voce. 34 see stewart, supra n. 3. 11 in an organic structure. we are, therefore, allowed much individual or small group autonomy... the leader interrupts this autonomy only when it is in danger of becoming erratic”. 35 on first glance, it appears to be a positive experience for the student but the power clearly remains with the teacher. 36 this represents what happens in firm meetings. therefore, i was left with this question: how can a firm meeting facilitate student-centred learning where the student is truly active, responsible, creative and has choice, if the power relating to content, format, dynamics and delivery ultimately lies with the supervisor? transferring power the challenge was to tip the balance of power in the favour of the students. i started by exploring what other supervisors did in their firm meetings, primarily by way of discussion but also by attending others’ meetings. one meeting in particular had a transformative effect on the way that i approached my clinical small group work from that point. when i arrived for the meeting i was surprised to see that one student took the lead straight away. she facilitated the meeting, having decided on the topic, the structure and the exercises to be undertaken. the most striking aspect was that the firm supervisor and i were treated like members of the firm and not as authority figures. we were required to take part in the exercises (which included a test on financial and commercial matters in the united kingdom) 35 collier, supra n. 25, p.18. 36 this is perhaps demonstrated by the student’s insistence on referring to him as the leader. 12 and to give our answers like every other attendee. the student leading the session took great pride in delivering it, drawing on her own knowledge of commercial awareness. the other students all contributed to the discussion and appeared to be enjoying it. following this positive experience, i ran similar scheme as a pilot with my students later that year. i told them that if anyone wanted to lead a firm meeting then they could do so. all they had to do was discuss it with me first. only one student took up this opportunity.37 it was clear to me that my exploration of the concept of student led firm meetings needed greater clarity and further planning. during the summer, in readiness for the next academic year, i listed four “rules” in my reflective diary: 1. all students must lead a firm meeting during the second semester 2. i provide a session planner detailing which meetings will be student led, but students complete the planner deciding who goes when 3. the student leading the session decides the topic and designs the session with no input from me 4. students can do whatever they like it is their one hour of learning and teaching so they decide what they want to do here, the power would be primarily with the student leading the session. the element of teacher-control was reduced to deciding when a firm meeting would be student led. due to timetabling restraints the meetings should be restricted to 50 minutes in length, but i did say that alternate arrangements could be made if required. in all other respects the students were free to do as they wished. 37 the student organised a firm trip to a local law firm to watch a presentation on charity law. 13 transferring power was liberating. each firm has 26 firm meetings during the course of the year. six of those would now be student led. as i supervised three firms this meant that i no longer needed to be concerned about what i would do in 18 firm meetings in semester two. however, with this came a growing sense of trepidation, especially after speaking to colleagues about my plans. in my reflective diary i wrote: what topics will they choose to deal with? how will they structure the session? will weaker students struggle with the task? how will i react to being part of the group rather than leading it? what if i’m failing them by not providing leadership? will they see this as lazy teaching? key concerns fell into the following categories: • relevance of topic • format • level of challenge • leadership style • link with learning outcomes table 1 in the appendix provides a summary of the meetings each student led, briefly setting out the general theme and the activities that were carried out for each session. what follows is an analysis of those concerns, drawing on my reflective journal and my lived experience of changing my clinical practice. relevance of topic 14 i was anxious about the topic that the students would choose to focus their sessions on. would students merely replicate the subject matter we had already covered? alternatively, would they choose to focus on an issue that had little to do with the module, programme or even degree? my colleagues had great fun teasing me that the students would just go to the pub! having implemented student led firm meetings into my teaching for two years now, i would not be troubled if students wanted to run a session in a public house – so long as the topic/activity was of relevance, and of course, there was strictly no discussion of any client-related matters. take for example the student led meeting which was devoted to psychometric or numeric testing (see table 1: student g). the student who designed that meeting downloaded tests from the internet, gave printouts to each person in the meeting and gave us all a period of time to answer the questions on the test sheet. they then marked the test sheets and as a group we discussed the answers. superficially, this looks like something that takes very little time to prepare and has little bearing on a clinical legal education module. however, in the united kingdom, solicitors’ practices looking to employ graduates as trainee solicitors or paralegals have been increasingly moving away from standard one hour interviews. they have now embraced assessment days. 38 these days are made up of a selection of activities designed to test cognitive, oral communication and team work skills, and will 38 assessment days have become so imbedded into the framework of law firms’ recruitment procedures that firms and legal journals are providing advice about assessment day processes: http://www.eversheds.com/global/en/where/europe/uk/overview/careers/graduates/assessment-day-hints-and-tips.page; http://www.sghmartineau.com/trainingcontracts/application/assessment-centre-interview-tips.asp; http://l2b.thelawyer.com/careers/how-to-survive-assessment-days/1011494.article/ (accessed 12 june 2014: 8:42am) 15 http://www.eversheds.com/global/en/where/europe/uk/overview/careers/graduates/assessment-day-hints-and-tips.page http://www.sghmartineau.com/trainingcontracts/application/assessment-centre-interview-tips.asp http://l2b.thelawyer.com/careers/how-to-survive-assessment-days/1011494.article/ invariably involve some form of psychometric or numeric testing (or both). the student leading the meeting effectively replicated the testing which takes place at assessment days. he said that he had thought about his own experiences attending those days and how he had been ill prepared for this type of testing. he wanted to share his experiences and help his fellow students by allowing them to practice the tests in a supportive environment. as the table demonstrates, the majority of students chose a theme around which to base their meeting. those themes can be grouped into the following streams: • skills the mlaw degree at northumbria university seeks to integrate legal theory with legal practice. it was therefore not unexpected that some students would focus on practical skills such as presentations, time management and letter writing. some students looked at skills that related specifically to the law, such as the negotiation of a legal dispute. interestingly, despite spending three years learning about specific pieces of legislation and a plethora of cases, no-one chose to base their firm meeting on black letter law. • employability this was the most popular stream. as i have alluded to with the firm meeting on psychometric/numeric testing, there was a desire to focus on activities and discussions which would help students looking for a job. most students framed this around a legal job (a training contract to be a solicitor, for example). however, 16 some students did not want to join the legal profession after graduation and many sessions were designed so that the knowledge and skills acquired could be used in any number of settings. for example, one student focussed on the art of networking. • team building some students pointedly called their firm meetings “team building sessions”. i have reflected more about this below, although it is important to note at this point that these sessions had a multitude of designs and we delivered in very different ways. the students came up with a spectrum of exercises from balloon making to what your handshake says about you to a handmade board game (called “legalopoly”) designed to test students’ knowledge of the student law office and encourage reflection. only one meeting lacked a clear theme. the activities were well prepared but there was a lack of coherence. it followed that the learning outcomes for the session were not made explicit and there were associated consequences for the level of challenge. my immediate reaction to this firm meeting was that i had failed. failed to prepare the student. failed to help them succeed. failed to give all the students in that group a good experience in that particular meeting. this goes back to the idea of the teacher as leader. after all, isn’t it the teacher’s role to make each session a valid and relevant learning experience for all? however, it would be entirely against the point of the meetings if i had asked each student to tell me what they were going to do and to 17 work with them to ensure a relevant topic and coherent delivery. the balance of power would have swung back and the student’s level of choice, responsibility and creativity diminished. format i suspect that the students’ choice of format for their firm meetings was influenced by the firm meetings that they had seen me lead during the first semester. using bligh’s catalogue of group techniques39, my firm meetings tend to be a combination of control and free group discussion and brainstorming. i use activities either as a precursor to the discussion or to help move the discussion on. therefore, it is not surprising that the majority of the students’ meetings followed suit. only one student made an effort to differentiate the format of their meeting. they invited the chief executive officer of a local business to come to the meeting as a guest speaker. the guest went round the table asking all of the firm members to introduce themselves and asked them about their goals. he gave a short speech about his career and the ideals that he aligned himself with. the group then asked him questions. the student leading the session did very little: she introduced her guest and then he proceeded to speak. however, in terms of format it distinguished her firm meeting from that of others. level of challenge 39 bligh, d. a. (1971) what’s the use of lectures? london: university teaching methods. 18 a significant proportion of meetings had a low or medium degree of challenge for participants. discussions were mainly free forming with individual members contributing when they wanted to. only one student asked firm members to prepare materials before the session, and this was to simply bring a pre-written letter to the meeting. the two meetings which had a high level of challenge for participants utilised exercises where we were asked to complete tasks which required a demonstration of skill in front of others. for example, student c prepared a fictional scenario where two organisations were in dispute. he split the group into two and asked each team to prepare for a negotiation with the other. we had a short period of time to, separately, create roles for each member of the team, agree upon strategies and goals, find arguments and consider alternatives. every person had a role to play; it would have been difficult for them to remain silent or in the background. there was a goal – both teams wanted to win – and this added an extra dimension to the meeting. leadership style it has been argued that the expectations for a role "are most easily met by the individual whose personality fits the role".40 it is true that the majority of the students who i would have identified as socially confident did live up to this expectation when they led their meeting. they gave direct supervision and told us what we needed to do and when. alternatively, they asked for opinions at certain times in the meeting. 40 hare, supra n.17, p.83. 19 firm meetings are very exposing for students who are quieter than others. in a group of six, in a small interview room, it is easy to pick out those who have not contributed during a meeting or contributed less than others. over the years, a number of students i have supervised were clearly academically capable but sat back in firm meetings and let others speak. one of my concerns was how students who had not demonstrated leadership skills and had been less willing to contribute would deal with the experience. my colleagues also raised similar concerns: “what if it’s terrible and the other students feel it is a waste of time?”. my own fears were perhaps reflected in my feedback to quieter students: “you have the opportunity to run and lead your own firm meeting in a few weeks’ time. you should think carefully about what you are going to do in that meeting as it provides an opportunity for you to show your abilities in respect of team working, communication and leadership”41. there was only one meeting where i had to step in. the student appeared to be unprepared. the meeting involved a general discussion but the students did not seem engaged and it came to an end after 25 minutes when the student leading the session said that they had nothing further to contribute. i facilitated the rest of the session. my experience here is a negative one. however, i also had the positive experience of watching students who had not demonstrated strong leadership or communication skills rise to the challenge. a student who had identified that he had struggled with the student law office in the first semester said that he used the student led firm meeting to show what he was capable of. he went from a student who would make 41 anonymised extract from student appraisal. 20 sparse contributions to firm meetings to delivering a well structured meeting with a combination of group activity, discussion and elements of traditional teaching. it had a clear theme and purpose and he engaged all members of the group. i argue that my experience shows that we should not dismiss students just because their past work has suggested that they do not have the correct temperament or level of skill for a role or activity. i mentioned earlier that i saw the student law office as a place of transition. it is not just a location for the development of skills – it is a site for human transition as well. by giving students the opportunity to appreciate their human capabilities, student led firm meetings in experiential education can have a powerful effect on those who we might not see as having natural leadership potential. learning outcomes half of the students made the learning outcomes for the session explicit. most started their session by providing an explanation as to why the firm meeting was going to be about a particular topic or how they had decided on the activities that we were going to undertake. i suspect that many students did this because they wanted to (a) justify the reason they had chosen the theme/activities and (b) show how much thought they had put into it. talking to the students, there appeared to be a competitive element to these firm meetings, with each student wanting their meeting to be “better” than others they had seen. re-setting the leadership role 21 in most small group sessions students rarely arrange themselves in the best configuration.42 in the student law office, the meeting room is arranged so that there is one table with three chairs on one side, three chairs on another and one chair at the top. students naturally sit on each side of the table and the supervisor sits at the top. the interview rooms where the meetings are held are very small and just about fit the seven people in there. in my experience, students choose the same or similar seating formation each week. most students take up a self-selected position at the start of the year. each week they go back to that chair. in the first student led firm meeting i attended i did not sit at the top of the table. i chose one of the six free chairs around the table, not the chair at the top. interestingly, when the students arrived for the meeting they all seemed to avoid the chair at the top, even the person who was leading that meeting. it was a symbol of power. over time, the students who led the meeting began to position themselves in that chair, although, as i noted in my reflective diary, the idea that i had a set place remained: my perceived “place” at the top of the table was emphasised today when, after she had led her meeting, a student remarked “i don’t like being in your chair”. at first, students did not want to sit in the power chair. as they came into the room they looked at it, and then quickly avoided it. however, over time the students became used to the idea that i had “joined the circle”43. in doing so, i had physically symbolised the transfer of power to the student leading the meeting. 42 exley, k. and dennick, r. (2004) small group teaching: tutorials, seminars and beyond. routledge, p. 17. 43 ibid. 22 this represented a real change in my views about room configuration. before i began the student led meetings, i had written in my diary the following thoughts: we sit around a table, with me, the facilitator, at the head of the table. this is naturally how the room (which is very small) is organised and how the students position themselves. exley and dennick44 state that changing the configuration of the seating "sends a powerful message to students". what is my message? well, i want to set out right from the beginning that the work that the students do in the student law office is real live case work and that brings with it a level of responsibility. i also want to ensure that they understand that what they do reflects on me professionally they are working under my supervision and my practising certificate. my fear is that if i represent myself as being an equal to the students in the group which is what exley and dennick advocate with their call to "join the circle" then i lose this. since the commencement of student led firm meetings, at no point have i felt that there has been a decline in the students’ appreciation of professional conduct issues or that they have taken the transfer of power to mean that they do not have to be responsible for the progress of their live case work. in fact, one of the consequences of my experiences of implementing student led firm meetings has been that i now join the circle right at the start of the academic year and someone else (usually on a rotating basis) sits at the top seat (which no longer is seen as such). i am now – as i alluded to earlier – fully and firmly in the boat in all aspects of clinical life. implications 44 ibid. 23 once the student led firm meetings were over i noted in my reflective diary the main features of the meetings. i wrote that each student tasked with leading a meeting had the opportunity to: • identify their and others’ learning needs • plan and set the goals for the meeting • choose when and where they did their planning • create problems to tackle or find issues to discuss • prepare relevant resources and materials • make all of the decisions about the content and format of their meeting • make use of or develop creative talent • decide when the meeting was at an end • engage in self-assessment i have highlighted in bold the words that align with the characteristics of studentcentred learning. in student led firm meetings the student is at the heart of the activity, responsible for all significant decisions, has a high level of choice and encouraged to be creative and reflect on their work. in simple terms, the students’ behaviour changed from simply turning up to a firm meeting and engaging as much or as little as desired, to being responsible for the meeting going ahead as well as the content it covered and the way in which it was delivered. authority, control, influence and impact sat primarily with the student, not with me. 24 anecdotally, i have heard other teachers express the view that it is not for us to change students’ behaviour, especially in a higher education setting. they argue that students know what they have to do and what is expected of them and that it is for them to choose whether they contribute to small group sessions or not. this falls into the trap of thinking that autonomy is a personality issue. students cannot build their own knowledge if they are not afforded the opportunity to be in control of their and others’ learning in small group sessions. in a clinical setting such as the student law office, this has to go beyond students freely discussing their cases or taking part in exercises the supervisor has chosen. the overwhelming effect of experiences of the student led firm meetings which took place that year was to force me to reflect on my own teaching practice. in all but one of the student led firm meetings, i was treated just like any other student. i had to take part in the games, complete the psychometric tests, give my opinion when asked, find an article to discuss in the meeting, be tested on my presentation skills, and answer questions about my goals, development and case work. as a participating member of the group, i was trained in presentation skills, interviewing techniques, business development and networking, educational changes, issues relating to the local economy and negotiation skills. additionally, and perhaps more surprisingly, i was shown how to deliver a successful small group session by my students, how to use activities to engage the group and how simple materials can be utilised to facilitate teaching. 25 i had also underestimated the importance of team building. i presumed that my students would talk to each other outside of firm meetings whilst they got on with their work in the student law office. i thought that they would build a relationship with one another, as they did with me as the year went on. however, many students began their firm meetings by saying “we don’t really know each other” or “i think we should get to know each other better”. at this point, they had been in the same group for nearly 5 months so it was surprising that they felt the need to focus their meeting around activities designed to build relationships and get to know each other. at the time, i wrote: at this stage in the degree, i would naturally hesitate from doing team building sessions (especially in the second semester) as i would worry that the students would perceive this as time wasting. student feedback has always been that they have a very busy final year and they are critical of anything they think does not relate directly to their final mark. team building activities included question cards and games (electronic and handmade). one student bought buzzers from the early learning centre so that firm members could “buzz” to say when they had an answer to a question. there was much more laughter and a relaxed atmosphere. we learned about each others' life goals, work experience and interesting moments. this often led to further discussion. for example, one student had got his head stuck in a set of railings when the queen visited the region in the 1990s. this prompted a discussion on local history, where students were from, and how that affected their career ambitions, all topics which could inform the reflective essays that formed part of their assessment. 26 teachers may be reticent to incorporate team building activities into their small group sessions, especially in the second semester of the final year of a degree course. the fear is that students do not pay thousands of pounds to put sticky notes on their head and press colourful buzzers. my experience is that these sessions can and do facilitate greater engagement in later meetings (both student and supervisor led). you would not run a team building session every week, but a strategically placed bonding exercise where the purpose is clearly set out and which links back to an educational/assessment topic 45 can be more effective in the long term for group dynamics. one of the regular comments that i receive from fellow teachers when i talk about student led small group sessions is: “don’t we have enough to do without shoehorning in these “alternative” sessions?”. my typical response is to point out that they’re looking at it from the perspective that sessions where the tutor facilitates a discussion (but retains ultimate control) is normal and, accordingly, the right way to teach. student led sessions should not be an alternative. they should be weaved into the programme appropriately and with proper consideration at the outset as to how they will work. conclusion 45 i often link a team building exercise back to discussion on group work, asking questions such as: should students have to work in pairs? are there any benefits in working with someone who has the same personality traits as you? should you be able to choose the people who make up your team? how does group work in the student law office differ from other pro bono providers or private practice law firms? 27 i have made visible, through reflection, the practice of small group work in a particular clinical setting. my journal entries and indeed this paper itself have allowed me to document internal processes as a supervisor when approaching weekly firm meetings. going back to the question that i posed at the start of this piece – is small group work in experiential legal education an inherent model of student-centred teaching? – the answer is clearly no. it is not inherent. however, we can align small group work in clinical legal education to a constructivist vision by transferring power to students in a way that provides space for those students to engage in a dialogue of their own choosing. acknowledgements i am very grateful to dr elaine hall and the two anonymous peer-reviewers for their extremely helpful comments on earlier drafts of this paper. finally, thanks must go to my colleague siobhan mcconnell who first introduced me to the concept of studentled firm meetings. 28 table 1: summary of student led firm meetings (2013 -2014) student theme activities a skills student a had prepared a word search. each person had 90 seconds to do the word search in front of the others and to guess when the 90 seconds was up. each word search was different. student a then asked the group questions which included: can you tell how long you’re taking? do you want to get the task finished despite the time constraints? does it matter if you can’t find all the words? this was followed by a group discussion about productivity and what can affect it. the session finished with student a providing time management tips. b employability student b put the group into pairs. the people in the pairs were up against each other for a job. each person had to pick a card from a pile student b had prepared. each card had a word written on it, such as “sociable”, “motivated”, “ambitious”, “reliable” and “talkative”. each person had to use those words in a 1 minute speech to get the job. this was followed by a general discussion about students’ experiences of interviews. c skills the firm was asked to split in two – one group would be the claimant and the other the defendant. the group was given a mock scenario written by student c. the groups prepared their arguments separately and then came together to negotiate a settlement. student c was the judge. d employability student d asked students to bring an article on the economy with them to the meeting. in the meeting, student d invited each person to discuss that article. discussions included reference to tesco, hmv and peter jones’ purchase of jessops. this was followed by a round table discussion based on recent article entitled “50 reasons to do business in the north east” which student d brought to the meeting. 29 e team building student e invited each member of the group to complete a numerical reasoning test. he marked the completed papers and results were given out. student e then asked the group questions such as “what would you do if you won the lottery today?” and “what vegetable would you be?” f skills student f showed a clip of a presentation from a teacher giving his final lecture. the teacher was terminally ill with cancer. this was followed by a discussion of good and bad presentation skills. g employability students were asked to complete psychometric tests on patterns and shapes and then student g provided answers. h team building student h created a board game called “legalopoly” with question cards about the student law office. it was a combination of snakes and ladders and monopoly. all members of the group (apart from student h) played the game. student h read the question cards. there was a prize for the winner. i employability student i led a discussion on the meaning of business development and why it is important. student i had designed a number of small exercises including “what does your handshake say about you?” and provided useful tips for networking. this included recognising when to/ not to join a group at a networking event. j skills student j asked each student to bring in a letter to a client that they had written during their time in the student law office. students were invited to discuss the feedback that they were given on that letter. student j then gave the group an article on writing well to read in the meeting and invited discussion about that article. k team building student k split the firm into two teams. each team was given a buzzer and then asked questions on the economy/financial matters. he provided prizes for the winning team. 30 l team building student l asked the group to take part in a number of team building games (getting to know you, truth/lie) involving buzzers and other props such as balloons. m team building each person had a sticky note put on their head with the name of a company that had been in the news. they had to ask questions and guess the company. this exercise was followed by a “high/low” game in respect of certain companies’ finances. n employability student n brought a number of articles about the changes to legal education and led a group discussion drawing on various ideas raised in those articles. this was followed by a discussion about the students’ career choices and what they want to do next. o team building student o prepared question cards about people’s experiences in life and the student law office. students were invited to take a card and answer the question. p employability student p invited the ceo of a local business to attend the firm meeting and speak about his experiences. he gave an overview of his life in business and he asked the students questions about themselves and what they want to do. q employability led a group discussion about the benefits and challenges of pro bono legal work. r employability psychometric testing – a verbal reasoning test. then student r produced a home made board game based on snakes and ladders with questions about their clinic experience, clinical legal education, and improvements they might wish to make to the clinic model. 31 from the field 138 what can be learned from international exchange between legal clinics: report on the experiences made during the encle conference in 2022 hannah franz, university of hamburg* 1. introduction “encle” is the european network for clinical legal education. it is the networks’ goal to connect persons committed to achieving justice through education. encle brings together persons from different countries, who exchange perspectives and work collaboratively from a variety of legal, educational and organizational settings in order to promote justice and increase the quality of law teaching through clinical legal education.1 the yearly encle conferences are one part of achieving this goal. the 9th conference will take place on july 17 and 18th 2023 in liverpool. in joyful anticipation of the conference, i would like to share my experiences as a (former) german clinic student at the 8th conference in brescia, italy. 2. presenting the conference subject the conference was held under the motto “solidarity: we are all in this together”. picking up the theme, mariia tsypiashchuk and yuliia lomzhets from the association of legal clinics of ukraine gave descriptive input on the current situation in ukraine ∗the author is a phd student and research assistant at the university of hamburg, germany; chair of prof. dr. gabriele buchholtz (social security law, migration law and digitaliziation). 1 https://www.encle.org/ (last reviewed: 24.03.2023). https://www.encle.org/ from the field 139 and what challenges arise for legal education due to the ongoing war. besides material damages to facilities, they face challenges in regard to missing staff and students, psychological stress, issues with the financing of the clinics, pressure and an increased workload for faculty, missing practical training and an increase of corruption risk. in this context, bian sukrow, leader of the law clinic at the bucerius law school in germany, gave an inspirational quote regarding the word “refugee crisis” which is generally used when many people are fleeing to another country. whereas most recipient countries use crisis as a word to describe the situation they are in to deal with a large number of refugees, it should always be kept in mind, that the crisis is actually quite present for those fleeing from war, persecution, environmental degradation, natural catastrophes, ethical conflicts etc. with this in mind, we went on into our sessions. the variety of the topics was tremendous. the topics included, for example, the digitalization of clinical legal education and the covid-19 pandemic; specific country reports on the immigration system; dealing with specific situations such as the new migration wave from ukraine; and promotions of specific legal clinics such as policy or statelessness clinics. some subjects also targeted topics of internal forced displacement due to natural disasters, protection of lgbtqia+ people and children. what was common to most of these sessions was the focus both on the practice of law and the practice of teaching. the speakers focused on explaining their programs and pedagogies that encompassed the spectrum of lawyering skills and roles, including counseling and mediation but from the field 140 also put the spotlight on supporting inclusion, equity, belonging and wellbeing within the classes. other topics included training law clinic students to be resilient and trauma-informed; dealing with a multi-disciplinary team consisting of students, academics and professionals; introducing classes on the right to legal aid into a curriculum and expanding the clinical program and examining implicit bias in order to train effective lawyers in a multicultural world. 3. experiences from some of the workshops 3.1.personal background and experiences coming from germany where most legal clinics are mainly voluntarily run by students and clinical legal education is not part of the curriculum2, it was insightful that in other countries university professors focus on how to train students not just in different areas of law but also on how to apply the law.3 they also train them on how to become “good” lawyers that encounter their clients with empathy. i was amazed to learn that the focus in other countries is not merely on providing free legal advice to those in need, but also on developing an extraordinarily useful enrichment legal education by making sure the students acquire “soft skills” such as competencies in reflection, leadership, ethics, professional responsibility, continuity, negotiation, lobbying, mediation, time management, legal research, strategic planning, 2 hannemann/dietlein, studentische rechtsberatung und clinical legal education in deutschland, 2016, p. 9; kilian/wenzel, law clinics in deutschland: zahlen, typologien und strukturen, anwbl. 10/2017, p. 964; wenzel/kilian, law clinics in deutschland, 2022, p. 5, 27. 3 see also e.g. evans/cody/copeland/giddings/joy/noone/rice, australian clinical legal education – designing and operating a best practice clinical program in an australian law school, 2017, pp. 48 f. from the field 141 communication and strategic, critical, entrepreneurial, social and intercultural thinking. behind this, is a whole different understanding of legal education than what i experienced in germany. in germany law students seem to be understood as empty vessels into which legal information can be poured into without end. clinical legal education shapes these vessels by providing students with so much more of what they need to understand, including the nature and processes of law and to operate effectively as a legal professional. in that regard, i was quite astonished to find out that a lot of educators in other countries are concerned with the well-being of their students and share the approach that psychologically strong students will be better and more resilient lawyers in the future. in germany the student’s mental health is not (or cannot be due to lack of institutionalization of the legal clinics) part of the legal clinics and not even part of any academic course within the entire legal studies. 3.2.student well-being within clinical legal education to form wholehearted lawyers kerrry trewern, director of the diploma in professional legal practice at the university of glasgow talked about student wellbeing in legal education. the main inputs from her session were that problems exceed in seriousness and when students leave university, they especially suffer from mental health issues. therefore, mental health training for educators is very much needed for student needs. the subsequent session by brontie ansell from the university of sussex pointed out one reason students might from the field 142 need mental health support: climate grief. brontie ansell talked about how to train law clinic students who will practice in a time of climate breakdown to be resilient and trauma-informed. it was outlined that the stages in climate grief are quite like normal grief. it is important to teach students not to cling to hope but to be courageous in the way they address trauma. in another session przemek kubiak, assistant professor at the university of lodz, poland gave some helpful ideas for strong mental health for students and their educators, as well as lawyers and other professionals. he explained the importance of keeping it strong and simple: a strong motivation is key to dealing with life which again is important to function regardless of the surrounding circumstances. it is also important to train psychological flexibility, therefore finding a reasonable balance between doing what matters, being present, and being open. to train this, everybody should define their own values, try daily to be aware of mindfulness and lastly train their acceptance in every possible way. 3.3. awareness of clients and contexts to train effective and empathetic legal professionals besides making sure that students are psychologically healthy, there were also a couple of other suggestions to ensure students are good advisors. non-clinical subjects such as language, history, political science and sociology should be incorporated to motivate students to undertake the responsibility to face complicated problems and from the field 143 analyze facts with the help of studies in literature, art, economics, and other relevant subjects. on this subject, ways to remind students of the delicate position their clients are in were put in the of the session. students are supposed to tell strangers about personal problems and rely on these strangers for help. in order to center client relationships and interactions in empathy, it is quite effective to bring students into a somewhat similar situation. as an identical situation regarding the topic will not be possible, one should try to find another situation which might lead to a comparable discomfort as the clients feel. lee-anne paula fraschia and ulrich stege from the international university college of turin promoted an approach which is called “teaching refugee/migration law through the arts”. the needed discomfort in students can be created by asking them to dance or sit on the floor for the first half of the class, therefore bringing them out of their comfort zone. furthermore, art is an important tool for introducing students to other cultures and enables them to engage with them in depth which also strengthens their understanding of these cultures. finally, the session by carolyn frazier and uzomaka nzelibe from the northwestern pritzker school of law, chicago, the importance of implicit bias was explored. they stated that in the interest of building empathetic and effective lawyers, stereotypes that effect our understanding and action need to be addressed. in order to know about our implicit bias, self-awareness and reflection need to be encouraged. students must understand, that sometimes our brain links two things together that are not from the field 144 necessarily linked. it is important for students to know about this effect as to reflect on it and take means to prevent this from having any affect outcome on their actions. as an example, it was explained that oftentimes, hesitant behavior of clients will be read as them preparing for a lie even though there might be various other reasons for the hesitation such as difficulty in understanding the question due to lack of language or cognitive ability or simply being unsure about the circumstances that are asked about. however, since students tend not to know their clients on a personal level, instead of trusting the answer they are given in these circumstances, students start to doubt. to overcome this psychological circumstance, it is important for students to replace judgement with curiosity. the students should also question their own assumptions: what might be the reasons for the clients to lie? what else might the behavior signify besides lying? they should also question the data they did or did not collect. are any biases within that data? as a first step for students to overcome their first doubt towards clients, they should think about the similarities and differences they share with their clients. by thinking about the background of their clients, the client becomes more human and therefore more trustworthy from a psychological point of view. 4. concluding remarks on the encle conference the sessions have made it very clear, that legal clinics consist of far more than students giving free legal advice to those in need. they are also a means of educating law students in the field and enable them to gain experience with real cases. in order for from the field 145 students to become competent advisors, it is important to sharpen their emotional skills, develop their awareness of social (in)justice and appreciate the role of the law and law in society.4 with clinical legal education, students learn how to adjust to different psychological states, to language barriers and how to understand the nonlegal issues behind legal problems and the diverse functions of law and the legal profession. they also learn to critically analyze the law, its limits and its rationales within the framework of access to justice. 5 therefore law clinics can be seen as a guarantee for learning experiences that promote an understanding of the possibilities, limits and deficits of the law and legal processes, and highlight the importance of ethical standards for legal professionals.6 what was almost even more important than the sessions themselves was getting to know all these people who engage in clinical legal education. the information and project ideas shared during the breaks, the start of new collaborations between 4 see also: aiken/wizner, teaching and doing: the role of law school clinics in enhancing access to justice, fordham law review, 03/2004, accessible at: https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1296&context=facpub (last reviewed: 15.08.2022), p. 1009; bücker/woodruff, the bologna process and german legal education: developing professional competence through clinical experiences, german law journal 09/2008, p. 610; onoja/sule, clinical legal education in nigeria and the united states: a comparative perspective, public law research 2015, p. 3. 5 see also: curran/dickson/noone, pushing the boundaries or preserving the status quo? designing clinical programs to teach law students a deep understanding of ethical practice, international journal of clinical legal education, 08/2005, accessible at: https://www.northumbriajournals.co.uk/index.php/ijcle/article/view/90 (last reviewed: 15.08.2022), pp. 104, 121. 6 see also: evans/cody/copeland/giddings/joy/noone/rice, australian clinical legal education – designing and operating a best practice clinical program in an australian law school, 2017, p. 12; giddings, promoting justice through clinical legal education, justice press 2013, pp. 3, 49; kilian, klinische juristenausbildung als element einer modernen juristenausbildung – warum die nebenwirkungen und risiken gering sind, der gewinn für die rechtspflege aber erheblich ist, anwbl 10/2017, p. 953. https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1296&context=facpub https://www.northumbriajournals.co.uk/index.php/ijcle/article/view/90 from the field 146 different legal clinics and all the bundled expertise that came across were mindblowing. for me personally, the encle conference showed me a whole new view on how to think and teach clinical legal education: clinical legal education can be so much more than it is right now in germany. when it is systematically organized, structured, built into the regular curriculum and focuses on student needs, clinical legal education can be a valuable approach to building strong future legal professionals. it is important to keep the international exchange alive since we can all learn and thrive from other countries’ experiences. it also strengthens our awareness for other challenges and how we can work together to overcome these and build a better, more peaceful world. at this point, i would like to thank all the organizers of the encle conference very much for providing this opportunity to engage with each other, share experiences and work together on promoting clinical legal education. since a lot of the sessions at the encle conference dealt with the needs of students and a lot of lecturers often raised the question of what might be wanted and needed by students, it might be an idea for future conferences to explicitly invite more students to attend. by students, academics, and supervisors sharing their knowledge and expertise, an even broader range of research-related contributions could be acquired. getting back to the sandbox: designing a legal policy clinic william wesley patton introduction perhaps my fondest educational memory is the first day of kindergarten after i was led to the sandbox� when i looked around i saw seven other students entering and then sitting on the sand� several toys [tools] rested on top of the sand� the teacher gave us no directions and no goals; we were self-directed and our task was self-selected1� each of us was placed in a laboratory where we could explore our imagination� the variables of our experiment were few: a limited number and type of instruments (a shovel, large plastic clawed fork, an assortment of shapes and sizes of containers); a sea of sand which upon closer inspection contained its own unique properties and identity (size and shape of grain, color of silica, degree of opacity and opalescence, moisture content [slightly moist on top from the morning dew, dusty-dry mid-layer, and wetter strata deeper into the body of the sand], and odor [from light-nosed top bed to dank cellar-like olfactory presence in the depths of the pit])� we did not feel observed, but watched we were by our mentor/teacher like from an orbiting satellite peering down upon us� she would have observed seven individual children working independently upon seven unconnected projects� we were not at that stage of our development motivated toward co-operative pursuits, nor were we hampered by notions of individuality, originality, and plagiarism2� the teacher could observe intellectual theft as some 96 1 “while solitary play frequently has been maligned as indicative of poor social-cognitive adjustment, recent findings suggest that solitary play frequently involves goal-directed and educational activities… [and] that participation in activities in which there is not a great deal of adult involvement encourages the development of independence, initiative, and novel use of materials�” jane a� goldman, social participation of preschool children in same – versus mixed-age groups, 52 child development 644, 649 (1981)� 2 the theory that children’s play evolves in a direct line and relationship to stages of intellectual development is currently undergoing a more nuanced interpretation� “for piaget the ontology of play must be viewed in relation to the development of intelligence in the child and therefore each cognitive stage, which piaget has outlined, exhibits a characteristic type of play activity� play in the sensory-motor period is characterized by repeated performance of newly mastered motor abilities and evidence of pleasure in engaging in such activities…� corresponding with the concrete operational phase is the appearance of games-with-rules� through the use and development of collective, as opposed to individualize, symbols… the child’s reasoning becomes more logical and objective, and therefore presumably closer to reality, preparing him/ her finally for the for operation period�” helen b� schwrtzman, the anthropological study of children’s play, 5 annual review in anthropology 289, 310–311 (1976)� for many years the act of children independently playing side by side but not interacting, or parallel play, was “viewed as a getting back to the sandbox of us copied other’s designs, and our expertise slowly increased by adopting and adapting sand manipulation methods invented by our peers� we became much more comfortable with the sand than with the dynamics of sand play� we did not perceive group identity; we did not yet explore the concept of “co” in cohort, cooperate, or coordinate, but simply played in coexistence� our pattern of play changed over time� during that year we often moved toward group digs and constructions, but we never abandoned, and often returned to, our original methodology of individualized parallel play� recently, i have discovered that the image of this kindergarten sandbox individualized experimental laboratory is a cross-cultural jungian archetype� for instance, yoko hino uses a scene in a kindergarten sandbox to illustrate the japanese educational philosophy of play activity or “zokei asobi” which is based upon the notion that “children’s expression naturally comes from within and is expressed as spontaneous play… [b] ecause children have a natural curiosity, play is not to be derived by someone else, but by their own will�” she tells the following story of a kindergartner who “was fully absorbed in digging in the sandbox, certain that a mole would come out� he believed that since the sandbox adjoins the field, a mole must surely come out� although one child digging with him expressed doubt about this possibility, and others laughed or tried to interrupt him, he continued digging for almost an hour, waiting for the encounter with a mole� the idea that a mole would indeed come out from a sandbox seems foolish to adults� no one directed him to do this; it was only important to him to try to meet a mole� his reason and a firm belief in this ‘play’ came from his own will and originated in his heart�”3 97 international journal of clinical legal education autumn 2011 characteristic of a ‘stage’ through which children pass as they develop from solitary players to social players�” roger bakeman and john r� brownlee, the strategic use of parallel play: a sequential analysis, 51 child development 873, 873 (1980)� many now argue that parallel play is one of a continuing number of types of play activities that children, and even adults, continue to use even after having cognitively advanced beyond that play phase� “contrary to the hypothesis that parallel play is a more ‘immature’ form of peer involvement… no age-related differences were apparent from time spent in this kind of activity�” lawrence v� harper and karen s� huie, the effects of prior group experience, age, and familiarity on the quality and organization of preschoolers’ social relationships, 56 child development 704, 714 (1985)� harper and huie note that individual or parallel play “is best seen as an alternative to peer involvement, rather than as one pole of a dimension of social activity, and that parallel play may function as a short-term, ‘strategic’ bridge between more solitary pursuits and greater involvement with age-mates�” id�, at 716� some have even placed in doubt “the role of parallel play in generating early peer relations…” edward mueller and jeffrey brenner, the origins of social skills and the interaction among playgroup toddlers, 48 child development 854, 854 (1977)� others have postulated that parallel play is a more immature form of expression since older children continue to engage in solitary play, but less often engage in parallel play� james e� johynson, joan ershler, and collen bell, play behavior in a discovery-based and a formal-education preschool program, 51 child develop� 271, 274 (1980)� in addition, some have argued that young children’s choice of solitary play rather than group play is “an insufficient criterion for characterizing children as ‘socially withdrawn�’” robert j� coplan, kenneth h� rubin, nathan a� fox, susan d� calkins, and shannon l� stewart, being along, playing alone, acting alone: distinguishing among reticence and passive and active solitude in young children, 65 child development 129, 136 (1994)� these concepts of solitary and parallel play are relevant to the discussion of the selection and implementation of legal projects by novice law students in a legal policy clinic, infra�, at section iii� 3 yoko hino, restrictions and individual expression in the ‘play activity/ zokei asobi’, 37 j� of aesthetic educ� 19, 20, 22 (2003)� the image of a sandbox has also been used to describe the evolutionary development of skills� “process skills may easily be developed through the child’s play… this kind of practice, which uses process skills, may be applied to many other learning experiences such as sandbox play…” thomas daniels yawkey and steven b� silvern, kindergarten goals and contemporary education, 77 the elementary school j� 25, 27 (1976)� the antithesis of a “structured game” is “a “sandbox” is also the designation for a contemporary computer game design and development structure� “sandbox is a type of game mechanic that is very non-linear and lets players do whatever they want… the idea behind the term is that there’s you, here’s the sand, now do whatever you want with it� sandbox games are often only limited by your imagination, or what you could find to do with the materials given to you�”4 this idea of self-directed exploration in a laboratory environment also forms the structure of the last twenty years of children’s museums which provide constructivist materials and tools for children to experience and manipulate�5 this article will analyze contemporary educational psychology in an attempt to: (1) determine whether a sandbox can and/or should be added to the law school curriculum; (2) describe a constructivist learning environment with the goal of providing law students self-selected pro bono publico projects that may help internalize a life-long goal of public service; and, (3) provide an interdisciplinary model that is feasible both in the large university law schools and in small and/ or free-standing law schools� the second half of the article will describe my attempts to build a sandbox model into my legal policy clinic� a cautionary note i offer the reader a cautionary warning regarding this and other articles applying contemporary educational psychology to law school pedagogy� first, educational theory has historically fluctuated among warring camps, and what is vogue today may quickly become passé tomorrow� second, no one has the answer for the perfect educational methodology for every learning environment or for every student/teacher relationship� “at least three dangers are likely to accompany any educational innovation� the first is that the proponents will create the impression that at last the solution to all problems is contained in one package… the second danger is that the description of the proposed getting back to the sandbox 98 child building a castle in the sand with no defined goal and with no clear rules or guidelines� we could say that the castle ‘builds itself’ through her actions (in contrast to the child who builds a house from lego blocks following detailed instructions…� can we say that unstructured games, played according to no clearly defined rules, assume some degree of (internal) control? it seems to us that the answer is an affirmative one, at least in most of the cases in this category� for in these cases it is still possible to give some kind of description of the action (building a castle in the sand…), and there exists those actions relevant to the realization of the characterization of the action�” roni aviram and yossi yonah, ‘flexible control’: towards a conception of personal autonomy for postmodern education, 36 educational philosophy and theory 3, 13 (2004)� 4 wikia gaming, http://gaming�wikia�com/wiki/ sandbox, (visited 9/23/09)� “in a sandbox game, you wander around and do what you want instead of following a plot� game stew, the game mastering blog, http://www�gnomestew�com/gming-advice/ nonlinear-sandbox-games, (visited on 9/23/09)� a sandbox symposium on computer game design is held annually� (http://sandbox�siggraph�org/ about�html)� the term “ ‘sandbox game’ was discussed 3,926 times on 256 sites” from 6/23/09 to 9/23/09� boardreader, http://boardreader�com/tp/ sandbox%20game�html (visited on 9/23/09)� 5 for example, see an interactive guide to the imaginarium discovery center in alaska which is a “hands-on, minds-on science discovery center, a place where families and visitors of all ages can explore art, history and science through play�” http://www�anchoragemuseum�org/expansion/ imaginarium�aspx, visited 9/10/09� the concept of “play” in adult pedagogy is beginning to be better recognized� “[a]dults do engage in a variety of assimilative play activities�” schwrtzman, supra�, note 1, at 311� the role of play in adults is also an important life component� “the pioneer of terminal care and thanatology, elizabeth küblerross said, ‘we are able to begin to play again regardless of age, place, and situation� all we have to do is just to shake-up the sense of play, because it is sleeping in ourselves�’” hino, supra�, note 3, at 23� kübler-ross also noted that “many program will be so appealing that enthusiastic support for and adoption of the approach will occur prior to the appearance of any empirical evidence to support the basic tenets of the innovation… [and] [t]he third danger is that the initial developmental phases of the movement will be accepted as the final version, thus stagnating efforts to improve and expand preliminary programs as new insights are gained in practice�”6 an example of an often insufficiently explored trend is the proliferation of team and group projects based upon limited empirical data regarding the characteristics of the gen-x generation who, among other traits, are supposed to “gravitate toward group activity…”7 but there are two problems with so easily riding on the gen-x group learning theory train� first, researchers are now seriously questioning whether any large group of students has sufficiently generalized learning styles and personalities to support any meta-pedagogy� “to accept generational thinking, one must find a way to swallow two large assumptions� that tens of millions of people, born over about 20 years, are fundamentally different from people of other age groups – and that those tens of millions of people are similar to each other in meaningful ways�”8 second, one would have to disregard the conflicting data on whether all students really enjoy and benefit from group projects� for example, on the positive side in one study “intrinsically motivated people showed greater commitment and devoted more time to task completion” in team projects�9 other studies have found that cooperative education increases students’ willingness to take on difficult tasks, result in better long-term retention of data and more intrinsic motivation�10 in addition, another study found that “culturally diverse groups generated more perspectives on a problem and more alternative solutions than culturally homogenous groups but took longer to achieve equal levels of group process effectiveness, accurate problem identification, and solution quality than less diverse groups�”11 however, studies have also demonstrated that for many students the group tasks create such an anxiety provoking environment that their ability to participate and learn is greatly overbalanced by 99 international journal of clinical legal education autumn 2011 terminal patients talk with their loved one about a memory of playing happily together�” id�, at 23� law teaching through computer simulations that have many elements of play and strategy are being used to teach law students procedural, as well as, policy and theory� see, e�g�, cali computer programs and kathleen goodrich and andrea kupfer schneider, the classroom can be all fun & games, marquette university law school legal studies research paper series research paper no� 09–36 (http://ssrn�com/abstract=1485532)� 6 kenneth castain, an examination of the basic assumptions of ‘individualized’ instruction, 59 the modern language j� 334, 334, 344 (1975)� 7 leslie larkin cooney, giving millennials a legup: how to avoid the “if i knew then what i know now” syndrome, 96 ky� l� j� 505, 505–506 (2008)� see, also, linda s� anderson, incorporating adult learning theory into law school classrooms: small steps leading to large results, 5 appalachian l� j� 127, 131 (2006); rodney o� fong, retaining generation x’er’s in a baby boomer firm, 29 cal� u� l� rev� 911, 912 (2001)� 8 eric hoover, the millennial muddle: how stereotyping students became a thriving industry and a bundle of contradictions, the chronicle of higher education (2009) [http://chronicle�com/article/themillenial-muddle-how/48772/?sid]� 9 simon taggar, individual creativity and group ability to utilize individual creative resources: a multilevel model, 45 the academy of management j� 315, 315–316 (2002)� 10 david w� johnson, roger t� johnson, and karl smith, the state of cooperative learning in postsecondary and professional settings, 19 educ� psychol� rev� 15, 19 (2007)� see also, noreen m� webb, megan l� franke, marsha ing, angela chan, tondra de, deanna freund, and dan battey, the role of teacher instructional practices in student collaboration, 33 contemp� educ� psych� 360, 361– 362 (2008)� 11 michael sweet and larry k� michaelsen, how group dynamics research can inform the theory and practice of postsecondary small group learning, 19 educ� psychol� rev� 31, 43 (2007)� their fear of appearing less capable than the other group members� these students have “[w]orry, anxiety, and attention to non-task relevant information (e�g�, others’ perceptions of one’s ability) [which] are likely to divert attention from the task and to limit students’ cognitive resources… moreover, a concern with appearing unable may also decrease students’ willingness to invest effort, as effort and ability have an inverse relationship�”12 in addition “social rejection and the stress it often causes can interfere with normal learning activities�”13 another study found that “[s] tudents valued the traditional lecture component of the college classroom equally well with the active learning projects… however, cooperative learning ranked the lowest… [and many] perceived cooperative learning in general to be an ineffective motivator�”14 professors who accept the generalization that students want to actively participate in classroom group dynamics may often misinterpret the silence of those who have problems participating as a lack of interest or a failure to prepare� however, there are many reasons for student resistance to group projects� “personal factors such as interest, comprehension and confidence…” [and] “[c]ultural and language factors have also been identified as having a role in constraining student participation…”15 professors may incorrectly generalize about students’ personalities and aptitude based upon their unwillingness or ineffectiveness in group problem solving dynamics� further, “[i]n a relational perspective one cannot hold that a person is a certain way – talented, reasonable or noisy – only that these manifestations articulate phenomena that tend to appear in certain situations (relations)�”16 and catherine o’grady has warned us, “because clinical collaborations tend to differ markedly from a new lawyer’s typically hierarchical practice collaborations, clinical collaborative pedagogy may not adequately prepare students for the realities of legal practice�”17 despite the conflicting data regarding the benefits of group projects and the information that it can have a substantially negative impact on some students’ learning, professors have dramatically increased their use of this pedagogical technique� in a 2008 survey by ucla, 36% of college professors indicated that they assigned group projects�18 with these “cautionary notes” regarding the efficacy of educational philosophy and psychology in mind, proceed carefully� getting back to the sandbox 100 12 yeolla berby-meyer and avi kaplan, motivational influences on transfer of problem-solving strategies, 30 contemporary educational psychology 1, 4, 16–17 (2005)� 13 stephane d� dandeneau and mark w� baldwin, the buffering effects of rejection-inhibiting attentional training on social and performance threat among adult students, 34 contemporary educational psychology 42, 42–43 (2009)� 14 patricia l� machemer and pat crawford, student perceptions of active learning in a large crossdisciplinary classroom, 8 active learning in higher education 9, 13, 24 (2007)� 15 louisa remedios, david clarke, and lesleyanne hawthorne, the silent participant in small group collaborative learning contexts, 9 active learning in higher education 201, 202 (2008)� 16 moira von wright, the punctual fallacy of participation, 38 educational philosophy and theory 159, 161–162 (2006)� 17 catherine gage o’grady, preparing students for the profession: clinical education, collaborative pedagogy, and the realities of practice for the new lawyer, 4 clinical l� rev� 485, 529–530 (1998)� 18 data points: more faculty members adopt ‘studentcentered’ teaching, the chronicle of higher education, oct� 23, 2009, lvi, #9, at a4 (relying on the american college teacher: national norms for the 2007–8 heri faculty survey (university of california at los angeles higher education research institute)� although clinical legal education has been using problem based learning for decades, seldom have clinicians delved into the empirical analyses of effective problem design and into the educational effects of that methodology� “problem-based learning (pbl) is a sophisticated instructional strategy, which depends heavily, but not entirely, on collaboration among students within a group�” marilla d� svinicki, moving beyond “it worked”: the ongoing evolution of research on problem-based learning in medical i. what variables should be considered in determining the substantive focus for a selfdirected legal policy clinic? frequently the types, scope, and procedural arena of issues litigated in a legal clinic are decided based upon the professor’s legal expertise or interest, the law school’s surrounding community’s legal needs, or some form of funding stream� these factors are obviously important in assuring the continuing viability of the clinic (professor interest), legal expertise (professor education and training), relevance to the community at large, economic viability and the sustainability of the clinic� however, rarely do students themselves have an opportunity to help define the legal universe in which they will learn and ply their developing lawyering skills� legal clinics are also often designed to further a professor’s definition of social goals� as one clinician has stated: “clinical legal education offers students direct experience as lawyers working for social justice�”19 at least historically, many clinicians have defined social justice in large part as bringing legal services to the underserved�20 however, few have studied the impact of professor selected definitions of social justice on law student motivation to enroll in a particular clinic, on the impact on students’ participation, vigilance, and persistence while in the clinic, or on the long-term intrinsic interest of those students to continue with the professor’s or an alternative 101 international journal of clinical legal education autumn 2011 education, 19 educ� psychol� rev� 49, 50 57 (2007) [outlining many of the problems that can arise from ill-structured problems and the disjunction between teaching content versus process and diagnosis]� some question whether problem based instruction is effective with novices who lack sufficient “‘domain’ knowledge” to provide them with the ability to craft creative solutions� linda morton, a new approach to health care adr: training law students to be problem solvers in the health care context, 21 ga� st� u� l� rev� 965, 980–981 (2005)� and when engaging in interdisciplinary instruction, the differences between the disciplines may complicate developing problem solving rubrics� “legal and medical training offer useful, but often conflicting, approaches to problem solving, thus, potentially impeding our abilities to understand and communicate with others regarding a shared issue or problem�” linda morton, howard taras, and vivian reznick, encouraging physician-attorney collaboration through more explicit professional standards, 29 hamline j� pub� l� & pol’y 317, 317 (2008)� problem based instruction is heavily dependent upon the ability of the mentor “who stimulates the discussion, provides students with relevant content information if needed, evaluates the progress, and monitors the extent to which each group member contributes to the group’s work�” sofie m� loyens, joshua magda, and remy m� j� p� rikers, self-directed learning in problem-based learning and its relationship with self-regulated learning, 20 educ� psychol� rev� 411, 413 (2008)� although problem-based legal instruction has been demonstrated to increase student motivation and completion of assignments, we must also be aware that the group and problem method can impede some students’ progress and may seriously interfere with those students’ abilities to concentrate on the content rather than upon the psychological consequences of their anxiety and frustrations� see, e�g�, wilfired admiraal, theo wubbles and albert pilot, college teaching in legal education: teaching method, students’ time-on-task, and achievement, 40 research in higher education 687, 700–703 ((1999)� 19 jane h� aiken, provocateurs for justice, 7 clinical l� rev� 287, 287 (2001)� aiken further states that “i aspire to be a provocateur for justice� a provocateur is one who instigates, a person who inspires others to action… [and] imbues her students with a lifelong learning about justice, prompts them to name injustice, to recognize the role they may play in the perpetuation of injustice and to work toward a legal solution to that injustice�” id�, at 288� 20 for instance, stephen wizner has indicated that “[c]linical legal education has been focusing on legal services for the underserved and on the justice mission of law schools for years” and he argues that “law schools do have some obligation to contribute to the solution of the crisis in access to justice…�” stephen wizner, teaching and doing: the role of law school clinics in enhancing access to justice, 73 fordham l� rev� 997, 997–998 (2004)� it is no wonder that clinicians focus their clinical goals on social justice since codes of ethics and studies such as the “mac crate report suggest that legal education could be doing a better job of instilling the value of promoting justice, fairness, and morality�” jane harris aiken, striving to teach vision of social justice through pro bono publico participation� therefore, one question is whether and to what extent clinical teachers should take “an active role in facilitating clinical students learning lessons on social justice?”21 and an equally important issue concerns the methodology of defining social justice and in communicating the professor’s vision of that better legal system� we sometimes act as though there is one definition and one set of criteria that define social justice�22 but “[w]hat criteria can we use to judge whether an educational policy or practice is socially just? how do we make comparative assessments of social justice in education?”23 it has been argued that all education which involves not only theory, but also action, must necessarily be political� “[t]raining is not neutral… [i]t attempts to advance social change activism toward a more participatory and democratic society� radical training, therefore, is a much more getting back to the sandbox 102 ‘justice, fairness, and morality’, 4 clinical l� rev� 1, 6 (1997)� “the legal strategies for social change course explores the roles lawyers have played and should play in trying to bring about social change to benefit disadvantaged or subordinated groups�” bill ong hing, raising personal identification issues of class, race, ethnicity, gender, sexual orientation, physical disability, and age in lawyering courses, 45 stan� l� rev� 1807, 1807 (1993)� 21 fran quigley, seizing the disorienting moment: adult learning theory and the teaching of social justice in law school clinics, 2 clinical l� rev� 37, 37–38 (1995)� 22 “public interest law is usually defined broadly as legal practice in the service of otherwise unrepresented or underrepresented persons or interests��� however, [it] is usually used to refer only to representation of the underdog in each of these areas�” philip g� schrag, why would anyone want to be a public interest lawyer?, inaugural address of the delaney family professorship, september 23, 2009, at 1 (ssrn: http://ssrn�com/ abstract=1486246)� however, clinic students may more broadly define public interest in pro bono public work to include working with corporations to better serve the general public even though that legal work does not involve the representation of individual underrepresented clients� although state bar associations sometimes include pro bono services outside the category of legal services to the poor, the predominant theme is usually single client representation in the areas of “family, consumer, housing, immigration, and employment” law, but other areas such as “legal assistance to small nonprofits” is also included� the true meaning of law: rediscovered, at 2–3 (minnesota state bar association report on pro bono legal services, june 2007)� there is thus a disconnection between “pro bono” legal work that is often described as “‘work on behalf of indigent individuals or other uncompensated legal work in conjunction with an individual lawyer, law firm or organization on behalf of a disadvantaged minority…” and “public interest” defined as representing “‘a position on behalf of the public at large on matters of public interest…’ [and which] does not include the direct representation of litigants in actions between private persons, corporations…�” depaul college of law offers a certificate in public interest law that defines a broad range of courses as public interest, including: (1) mental health law, advanced criminal procedure, evidence, animal law, complex civil litigation, state constitutional law, and labor law� (http://www�law� depaul�edu/ centers_institutes/public_interest/program_req� asp)� although the aba admits that the “meaning of [public service] may be debatable around the edges…at its core is the responsibility of the profession to insure access to justice for all…�” directory of law school public interest and pro bono programs, introduction (http://www�abanet� org/legalservices/ probono/lawschools/introduction)� cynthia f� adock and alison m� keegan, a handbook on law schol pro bono programs: the aals pro bono project 70 (june 2001)� social justice can also be part of a larger political agenda: “the ‘out-crit’ denomination is an effort to conceptualize and operationalize the social justice analyses and struggles of varied and overlapping yet ‘different’ subordinate groups in an interconnective way… [and] must be designed to ensure that critical legal education operates as a principled platform for selfempowerment and social justice activism in everyday life�” francisco valdes, outsider jurisprudence, critical pedagogy and social justice activism: marking the stirrings of critical legal education, 10 asian l� j� 65, 66, 88 (2003)� 23 sharon gewirtz, towards a contextualized analysis of social justice in education, 38 educational philosophy and theory 69, 69 (2006)� gerwitz suggests that we at least consider “a) looking at the multi-dimensional nature of justice; b) looking at the tensions between different dimensions of justice; c) being sensitive to the mediated nature of just practices; and d) being sensitive to differences in the contexts and levels within which justice is enacted�” id�, at 79� political act as it is a pedagogical act�”24 however, even if the clinician has sufficiently defined and described her definition of and goal for social justice, there are still several central problems that must be addressed�25 first, students may disagree with the professor’s notion of social justice� although “[m]any students are at least partly attracted to law school due to their own social, political or moral values”, they may have a very different notion of what social justice entails�26 as babich has articulated in defining his “apolitical law school clinic”, students “look to their professors to help them develop as lawyers and professionals, but not necessarily for political guidance�”27 there is, of course, a considerable difference between the role of the law professor as mentor/symbol of the public activist or servant and the role as political proselytizer� in addition, a professor-defined and driven social justice clinic runs counter to the educational psychology research on non-directed learning, student autonomy, and motivation� cooperative 103 international journal of clinical legal education autumn 2011 24 john d� holst, conceptualizing training in the radical adult education tradition, 59 adult education q� 318, 332 (2009)� holst defines “radical training” as the “mastery of action (practice) and the master of principle (theory) conceived dialectically� training is about building the skills, understanding, and confidence of people� second, a significant amount of training takes place in the actual activities of social movements; it is training in action�” id�, at 332� since teachers have a tremendous influence upon their students, there has been a legitimate concern that students, especially young children, might be unreasonably led by the teacher piedpiper� “the so-dubbed ‘indoctrination objection’, however, calls into question whether education, aimed at cultivating autonomous critical thinkers, is possible� the core of the concern is that since the young child lacks even modest capacities for assessing reasons, the constituent components of critical thinking have to be indoctrinated if there is to be any hope of the child’s attaining the ideal�” stefaan e� cuypers and ishtiyaque haji, education for critical thinking: can it be nonindocrinative?, 38 educational philosophy and theory 723, 723 (2006)� cuypers and haji contrast indoctrination to “authentic education” that is “a molding process that is conducive to the attainment of a primary educational aim of transforming children into morally responsible agents� if this aim is not realized owing to manipulation or paternalism, attainment of this aim is frustrated as a result of the inauthenticity of the educational process�” id�, at 734� 25 “[i]t has generally been assumed that the teacher is an agent of influence� how that influence should be expressed has been the critical question�” joan i� roberts, freedom, the child, the teacher: a gap between ideas and action, 15 interpersonal relations and education 319, 319 (1976)� 26 henry rose, law schools should be about justice too, 40 clev� st� l� rev� 443, 444 (1992)� it is difficult to compare law schools’ devotion to pro bono and public service because of “the use of an array of terms, such as ‘public interest,’ ‘public service,’ and ‘pro bono�’” russell engler, from the margins to the core: integrating public service legal work into the mainstream of legal education, 40 new eng� l� rev� 479, 481 (2006)� of course, some students may greatly benefit from a professor’s passionate quest of an individualized conceptualization of social justice� i am not arguing for a completely politically neutral clinic environment, but one in which students have an opportunity to define the politics of the clinic’s practice and one in which both faculty and students can debate their visions of justice� as one recent graduate has noted “many clinical professors have found a middle road between the danger of indoctrination, on the one hand, and the myth of neutrality, on the other� many faculties address the indoctrination threat with honesty and openness, by being ‘up front about [their visions of justice] from the beginning, [f]rom the time students choose whether to enroll…�” jeffrey ward, one student’s thoughts on law school clinics, 16 clinical l� rev� 489, 517–518 (2010)� 27 adam babich, the apolitical law school clinic, 11 clinical l� rev� 447, 455 (2005)� babich describes the apolitical law school clinic as one that “(1) emphasizes a commitment to professionalism – rather than to a political viewpoint – as the motivating force behind each student attorney’s activities, (2) is fully consistent with the clinics’ roles as public-service organizations and their duties to clients, and (3) helps defuse controversy by offering compelling, politically neutral, and — best of all — honest justification of a clinic’s advocacy of even the most unpopular viewpoints�” id�, at 449–450� but it is almost impossible for a professor to be politically neutral� “when assuming the position of being a teacher, there is always a question of erasure� this erasure of life, which has to be expelled from the ‘body’ for it to function as a body… will have to be a more learning theory posits that the role of the professor is to engage in “the ‘spirit of mutuality’ of learning between students and instructors�”28 according to self-determination pedagogical theory, students will more fully engage in an educational activity when the goals of that assignment are aligned with students’ philosophy� “feelings of autonomy are particularly strong when the task is perceived as being closely connected to the values, interests, and goals that constitute the core of one’s authentic self and identity…”29 although a professor-defined clinic substantive focus is obviously necessary in most contexts, a legal policy clinic offers an example in which the clinic students themselves can determine the subject matter and the political focus of their lawyering tasks� ii. the collateral benefits of a self-directed and self-selected legal policy clinic on students’ lifelong desire to provide pro bono publico services in its landmark 1992 survey of the public’s attitude about attorneys, the american bar association discovered that 43% responded that if attorneys would perform more pro bono services, it would “significantly increase their favorable impressions about the profession…”30 for the past twenty years non-profit organizations,31 state and local bar associations, the american bar association,32 getting back to the sandbox 104 or less blind neutralization, or a pretending to be neutral, of the possibility of a neutral position and a neutral agenda�” james steinnes, transformative teaching: restoring the teacher, under erasure, 41 educ� philos� & theory 114, 123 (2009)� 28 quigley, supra�, note 21, at 58-59� there are, of course, a number of different clinic models: (1) those that solely represent individual clients; (2) pure policy and/or impact clinics that promote specific justice objectives or which assist targeted communities in advocating positions; and (3) “a combined advocacy model in which students represent individual clients while simultaneously participating in efforts to achieve broader social change�” jayashri srikantiah & jennifer lee koh, teaching individual representation alongside institutional advocacy: pedagogical implications of a combined advocacy clinics, 16 clinical l� rev� 451, 451–452 (2010)� skrikantiah and koh argue that although most individual client representation clinics are based upon a student-centered pedagogy that permits then “ownership” of clients’ cases, when the clinic shifts to “institutional advocacy work” the “students should act as collaborators, working as one member of a project team that includes their instructor(s)�” id�, at 454� skrikantiah and koh describe a policy clinic that, in effect, partners with “communities and organizations the clinic seeks to serve�” id�, a 456� they explain that the traditional clinical model of student ownership does not function well when students work on impact issues affecting larger constituencies because students lack the substantive knowledge, procedural and advocacy strategies, and the time to competently advocate those positions� id�, at 474–477� in the policy clinic model i discuss, infra�, the student is, in essence, her own client since she is the one who has complete ownership in the selection of the legal issue, the research, and the advocacy necessary to perfect that student’s notion of social justice� since there is no attorney/client relationship and no formal relationship with an institutional client, many of the problems identified by srikantiah and koh, such as the student’s “struggle to establish attorney-client relationships with more sophisticated clients”, simply do not arise� id�, at 475� 29 idit katz and avi assor, when choice motivates and when it does not, 19 educ� psychol� rev� 429, 431 (2006)� 30 gary a� hengstler, vox populi, 79 a�b�a� j� 60 (1993)� 31 for instance, the public interest law initiative was “[o]riginally founded in 1977 as ‘the chicago law student public interest internship program’” to “cultivate… a lifelong commitment to public interest law by creating opportunities for law students and lawyers to provide public interest and pro bono work in illinois…� pili’s programs first capture emerging lawyers when they are law students and new law school graduates, and then extend into legal practice to reach new associates, seasoned layers, and senior attorneys working in every sector of the legal community – private, academic, and government and nonprofit�” (http:// www�pili-law�org)� 32 the american bar association promulgated aba standards 302(b) which requires law schools to provide students with opportunities for “participation in pro bono opportunities” which and the association of american law schools33 have all attempted to proselytize and empower law students and attorneys concerning their role in providing free legal services and access to justice�34 the pro bono movement has been largely founded upon a non-empirically based infection theory: once law students are exposed to the opportunities and rewards of providing free legal services, they will internalize those values and provide the public with a life-long career that involves public service� however, this intuitive model and students’ self-reports about the effects of law school pro bono programs are just beginning to be empirically examined� for instance, almost a decade ago deborah rhode noted that “[s]chools with pro bono requirements have found that between twothirds and four-fifths of students report that their experience has increased the likelihood that they will engage in similar work as practicing attorneys� however, no systematic studies have attempted to corroborate such claims by comparing the amount of pro bono work done by graduates who were subject to law school requirements and graduates who were not� nor do we have research comparing the effectiveness of such required programs with well-run volunteer opportunities�”35 a new study brings into question whether the pro bono infection model is actually effective� sandefur and selben recently analyzed the data in after the j�d�: first results of a national survey of legal careers which surveyed 5000 attorneys and which will continue to track those attorneys 105 international journal of clinical legal education autumn 2011 interpretation 302-10 specifically defined as: “pro bono opportunities should at a minimum involve the rendering of meaningful law-related services to persons of limited means or to organizations that serve such persons; however, volunteer programs that involve meaningful services that are not lawrelated also may be included within the law school’s overall program�” aba standard 404(a) (5) includes “[o]bligations to the public, including participation in pro bono activities” within the definition of the responsibilities of full-time faculty� aba model rule 6�1 provides that “[e]very lawyer has a professional responsibility to provide legal services to those unable to pay� a lawyer should aspire to render at least (50) hours of pro bono public legal services per year�” 33 the aals, in its pro bono project, learning to serve, not only notes that its “commission’s central factual findings indicate that most students do not participate in law-related pro bono projects”, but also that “[e]fforts to build broader cultures of commitment must begin in law schools� to that end, the aals commission’s primary recommendation is that every law school should seek to make available for every student at least one well-supervised pro bono opportunity and either require participation or find ways to attract the great majority of students to volunteer�” deborah l� rhode, foreword to learning to serve, at 1–2 (http://www�aals�org/probono/report�html)� the aals commission also recommends a broad definition of the types of lawyering activities that constitute student pro bono involvement: “all work that students do for the benefit of others has important values… schools need not adopt a narrow view of what counts as a project that draws on lawyer’s skills and knowledge… [and] some of the most satisfying law-related projects currently in place do not involve individual legal representation at all�” (id� at 5)� 34 scott l� cummings, in the politics of pro bono, 52 ucla l� rev� 1, at 1 (2004) has provided one of the best descriptions of the evolution of the legal pro bono movement in america: “whereas for most of american legal history, pro bono was ad hoc and individualized, dispensed informally as professional charity, within the last twenty-five years it has become centralized and streamlined, distributed through an elaborate institutional structure by private attorneys acting out of professional duty� pro bono has thus emerged as the dominant means of dispensing free representation to poor and underserved clients, eclipsing state-sponsored legal services and other nongovernmental mechanisms in importance�” cummings has noted significant problems that have arisen as “the professional ideal of pro bono as an act of individual kindness clashes with the image of institutionalized pro bono as an instrument to promote large firm commercial interests�” (id�, at 107)� he notes that shifting pro bono representation to large for-profit law firms leaves some individuals, groups, and public interest issues substantially underrepresented because the “chief consideration for law firms is cultivating their paying client base� decisions about pro bono are therefore always filtered through the lens of how they will affect the interests of commercial clients�” id�, at 116, 147–148� 35 deborah l� rhode, essay: the pro bono responsibilities of lawyers and law students, 27 wm� mitchell l� rev� 1201, 1212 (2000)� “no for a decade�36 although sandefur and selben were aware of the tremendous number of articles which have celebrated the benefits of clinical education, they were also aware that “existing research does little to reveal, explain or otherwise inform our understanding of the relationship between clinical legal education and the practical and professional development of law students�” the after the j�d� results were mixed regarding the effects of clinical legal education upon new lawyer behavior� first, the attorneys expressed that having taken clinical courses was the third most helpful law school experience in preparing them for practice�37 however, “on average clinical training experiences during law school bore no relationship to participation in pro bono work by new lawyers working in private practice or as internal counsel… [and] on average, there was little relationship between clinical training experiences and lawyers’ rates of participation in community, charitable, political advocacy and bar-related organizations…”38 there also was not a statistically significant relationship between pro bono activity and those students who entered law school “to help individuals or change or improve society” and those who took clinical courses�39 on the other hand, there was “a strong relationship between clinical training experiences and public service employment�”40 although studies have found that forces outside the law school experience have a greater impact on attorneys’ behavior than any school related variables, changes in the law school curriculum might increase the effects of those three years on attorneys’ pro bono activities�41 for instance, specific courses and/or assignments on professionalism throughout the curriculum might increase students’ attitudes toward civic duty� in addition, a greater number of clinical course offerings spread among the three year curriculum might have a synergistic effect on students’ attitudes� further, a clinical course in which students select their own cases and projects to match their own political philosophies and interests might provide them a more persistent desire to later engage in pro bono activities� finally, as deborah l� rhode and scott l� cummings have recently elucidated, much of the pro bono work in american law is accomplished through large law firm formalized free legal services networks in which an individual attorney’s conceptions of public service may directly conflict with the firm’s institutional self-interest�42 one of the principal goals of large getting back to the sandbox 106 comprehensive national data exist on the extent of lawyers’ pro bono contributions� full information is difficult to come by because only three states mandate reporting of contribution levels, because the definition of pro bono is often expansive and ambiguous, and because lawyers often stretch its scope to include work for which they expected to be paid but which turned out to be uncompensated or undercompensated�” deborah l� rhode, pro bono in principal and in practice, 26 hamline j� pub� l� & pol’y 315, 3260327 (2005)� 36 rebecca sandefur and jeffrey selbin, the clinic effect, 16 clinical l� rev� 57 (2009), analyzing ronit dinovitzer, bryant g� garth, richard sander, joyce stering, and gita z� wilder, after the j�d�: first results of a national survey of legal careers, (nalp foundation for law career research and education and the american bar foundation, 2004)� 37 after the j�d�, supra�, note 36, at figure 11�1 and table 11�1, at 81� the effects upon preparation to practice were, in decending order: (1) legal employ during summers; (2) legal employ during school year; (3) clinical courses; (4) legal writing; (5) internships; (6) upper-year lecture; (7) course concentrations; (8) first-year curriculum; (9) legal ethics; and (10) pro bono� id� 38 sandefur and selbin, supra�, note 36, at 82� see also, robert granfield, the meaning of pro bono: institutional variations in professional obligations among lawyers, 41 law & soc’y rev� 113 (2007)� 39 id�, at 94–95� however, “[n]ew lawyers who recalled civic motivations for entering law were twice as likely to be working in public service jobs a those who did not (20% versus 10%)�” id�, at 99� 40 id�, at 102� 41 “outside of the law school environment, studies of lawyer professionalism consistently find four factors to be very powerful in shaping lawyers’ behaviors: where they work, with and for whom they work, and the market conditions within which they operate�” id�, at 104� 42 scott l� cummings and deborah l� rhode, managing pro bono: doing well by doing better, 78 firm pro bono practice is to provide skills training to their young associates, and case selection is often driven, in part, by the lawyering activities inherent in the selected representation�43 therefore, cases providing associates with certain skill sets, such as motion and trial experience, are preferred, whereas other potential pro bono activities such as community organizing, lobbying, and legislative analyses are less favored�44 large law firm pro bono case selection is also greatly influenced by the economic and/or political ramifications to the law firm� as a shield “[o]ver threefifths… of firms” rely upon a law firm committee for pro bono case selection and/or approval�45 large law firms generally categorically reject pro bono representation in employer/labor, mortgage foreclosure, family law and estate planning, and bankruptcy based upon actual ethical conflicts, law firm economic interest in not offending existing or potential clients, and substantive areas with procedures and evidentiary rules different from those used in ordinary civil law practice�46 in addition, law firm pro bono case selection focuses on individual client representation, “matters which can be completed expeditiously…” rather than on more systemic legal problems like environmental law or homelessness�47 since many students, once they are employed in law firms, will have a constricted selection of the types of pro bono cases and clients that they can represent, it is important to provide them with an opportunity in law school to work on cases that they, themselves, find important� once they gain the confidence to represent “their” public service issues and once they feel the satisfaction of that representation, they may be better equipped and more empowered to attempt to change the pro bono culture in the law firms where they will later work� for the purposes of this paper, i want to explore just one variation on the law school pro bono theme: what effect might student selected clinical cases have upon their attitude toward pro bono activities and upon the persistence of that attitude throughout their legal careers?48 we know from 107 international journal of clinical legal education autumn 2011 fordham l� rev� 2357 (2010)� they demonstrate not only that large law firms dominate american pro bono activity, but that those firms have in many ways supplanted traditional sources such as legal aid societies, that have provided access to justice� (id� at 2360–361, 2372–2375)� 43 “the institutionalization of pro bono programs, however, has blurred the line between paid and nonpaid work; the training, recruitment, and reputational functions of pro bono service are increasingly integrated into the economic framework of large law firms� nowhere is this more evident than in the growing linkages between largefirm pro bono and career development programs�” id�, at 2426� 44 “of particular value were cases that had a ‘high likelihood of… going to trial�” (id�, at 2427)� 45 id�, at 2391� 46 id�, at 2392–2394� 47 richard abel, the paradoxes of pro bono, 78 fordham l� rev� 2443, 2448� in addition, the state of the economy’s economic health also drives law firm pro bono case selection� “the economic contraction increased pressures to choose matters that could be resolved with predictable and limited resources�” (id�)� 48 i am not alone in seeking more emphasis on students’ involving in selecting clinic clients� for instance, adrienne jennings lockie has recently “encourage[d] clinical supervisors to involve students in the decision of whom to represent; students benefit in a number of ways from being involved in the client selection� providing students with as much autonomy as possible enhances student learning�” 16 clinical l� rev� 357, 360 (2010)� there is a difference between motivating students to perform required course assignments and helping them develop an internalized desire to continue pursuing a self-defined goal or activity� “a major reason for calling attention to the distinction between behavior in controlled motivation situations and in the on his own situations is that this distinction makes it clear why it is important to help the pupil develop a feeling that what he is studying has significance for him� if an individual is to use some knowledge or skill when he is on his own, he has to feel that the rewards of using the knowledge or the skill will be greater than the rewards of not using it�” ralph h� ojemann, should educational objectives be stated in behaviorl terms?, 68 the elementary school j� 223, 226 (1968)� adult learning theory that self-directed education is more than merely providing students with some discretion in designing their own curriculum�49 one of the critical results of self-directed learning is that students’ projects “are ‘owned’ by the learner who is in control of what is learned, when learning starts, where it goes, and when it is complete�”50 psychological motivation literature also emphasizes that people organize their lives around “a persistent motivation for the experience of ‘happiness,’ contentment, or well-being” and around the desire for “virtually unlimited choice regarding our own beliefs, attitudes, and behaviors…”51 in addition, the educational experience getting back to the sandbox 108 49 at the basis of adult learning theory originally advanced by malcolm s� knowles, abraham h� maslow and carl r� rogers is the psychological need of older learners to be self-directed, to use reflection in learning experiences and to immediately apply what they learn� frank s� bloch, the andragogical basis of clinical legal education, 35 vand� l� rev� 321, 326–331 (1982)� for a history of adult learning theory, see, li-kuang chen, young sek kim, paul moon, and sharan b� merriam, a review and critique of the portrayal of older adult learners in adult education journals, 1980–2006, 59 adult education q� 3 (2008)� one branch of adult learning pedagogy, achievement goal theory, “posits that students often pursue one of two broad goals in a class: mastery goals or performance goals� [citations omitted] both goals concern the pursuit of competence and the assessment of one’s own skill level, but they do so in different ways� when pursuing a mastery goal… students strive foremost to develop their ability and knowledge base in a content area� when pursuing a performance goal… students instead try to outperform peers�” corwin senko and kenneth m� miles, pursuing their own learning agenda: how mastery-oriented students jeopardize their class performance, 33 contemporary educational psychology 561, 562 (2008)� senko, et� al, found that the approach that students take in a course, master goal versus performance goal, may substantially affect test performance; “using an interest-based approach may lead mastery-oriented students to under-achieve to some degree if it guides them toward a learning agenda that differs from the teacher’s agenda�” id�, at 565� one study “found a strong correlation between mastery goal orientation and law school success (as measured by class rank)� in contrast, there was no correlation between performance goal orientation and class rank� however, performance goal orientation did correlate to higher lsat scores�” leah m� christensen, enhancing law school success: a study of goal orientations, academic achievement and the declining self-efficacy of our law students, 33 l� & psych rev� 57, 66 (2009)� 50 donald n� roberson, jr� and sharan b� merriam, the self-directed learning process of older, rural adults, 55 adult education q� 269, 270 (2005)� selfdirected learning “can be described as intentional… and self-planned… learning, where the individual is responsible for… and in control… of learing�” id�, at 270� in addition, “[e]xperiential education is commonly defined as learning that involves participants in direct experience and focused reflection���� through the process of reflecting on experiences students are said to produce knowledge and meaning rather than being the recipients of knowledge and meaning from the teacher�” robyn zink and michael dyson, what does it mean when they don’t seem to learn from experience?, 39 cambride j� of education 163, 164 (2009)� of course, some have argued that adult learning theory, or andragogy, is not the proper pedagogical analogue to apply to law school teaching “because our students have not always reached the stage of ‘adulthood’ the androgigical method requires, and also because we feel it necessary to teach specific content�” linda morton, janet weinstein, and mark weinstein, note quite grown up: the difficulty of applying an adult educational model to legal externs, 5 clinical l� rev� 469, 470 (1999)� therefore, one might envision in law school a modified form of adult learning theory which provides students with a much greater degree of self-directed learning, but which also provides for “[a]utonomy support [which] has three prototypical features: (a) choice provision, in which the authority provides subordinates with as much choice as possible within the constraints of the task and situation; (b) meaningful rationale provision, in which the authority explains the situation in cases where no choice can be provided; and (c) perspective thinking, in which the authority shows that he or she is aware of, and cares about, the point of view of the subordinate�” kennon m� sheldon and lawrence s� krieger, understanding the negative effects of legal education on law students: a longitudinal test of self-determination theory, 33 personality and social psychology belletin 883, 884 (2007)� for an interesting discussion selfdetermination theory in relation to the evolution of lifetime learning objectives and life transitions, see, jennifer g� la guardia, developing who i am: a self-determination theory approach to the establishment of healthy identities, 44 educational psychologist 90 (2009)� 51 lawrence s� krieger, human nature as a guiding philosophy for legal education and the profession, 47 washburn l� j� 237, 249–250 (2008)� “identity is enhanced by students’ “positive emotions like enjoyment, pride, and hope as experienced in educational settings�”52 although legal education has focused on individual students’ learning styles for years,53 only recently has attention been devoted to individual students’ emotional reactions to the educational environment� “[i]n classroom learning, students may be especially sensitive to the emotional meanings of their academic experiences, as well as to the experiences of others, who are in such close proximity… similarly, teachers are simultaneously interacting with 109 international journal of clinical legal education autumn 2011 learning…’ cannot be separated from a person’s experienced life, nor from his or her social commitment’; thus, identity is at the same time individual and social�” jennifer a� sandlin and carol s� walther, complicated simplicity: moral identity formation and social movement learning in the voluntary simplicity movement, 59 adult education q� 298, 299 (2009)� “adult education scholarship… understands learning as a lifelong pursuit embedded in everyday life experiences�” dae joong kang, rizoactivity: toward a postmodern theory of lifelong learning, 57 adult education q� 205, 205 (2007)� students’ attitudes toward particular learning environments and methods affect their willingness and ability to learn� “metacognitive experiences are online feelings, judgments/estimates, and thoughts people are aware of during task performance� in a broader sense, the affective experiences that the person becomes aware of in connection with the task at hand — e�g�, interest, liking, disappointment, etc� – are also part of the metacognitive experiences� these affective experiences co-occur with metacognitive feelings and metacognitive judgments/estimates, such as feeling of knowing, feeling of difficulty, feeling of familiarity, feeling of confidence, feeling of satisfaction, estimate of solution correctness, etc�” anastasia efklides, metacognitive experiences: the missing link in the self-regulated learning process, 18 educ� psychol� rev� 287, 288 (2006)� therefore, within students’ discretion to select different types of courses, the “interest value” of the course will play a heavy role� “expectations for success, confidence in one’s abilities to succeed, and personal efficacy have long been recognized by decision and achievement theorists as important mediators of behavioral choice�” jacquelynne eccles, who am i and what am i going to do with my life? personal and collective identities as motivators of action, 44 educational psychologist 78, 81 (2009)� course selection will also be influenced by “anticipated anxiety, fear of failure, and fear of the social consequences of success� cost can also be conceptualized in terms of the loss of time and energy for other activities that may be more central to one’s personal and collective identities�” id� at 83� in addition, persistence is related to the concept of self-efficacy, or how individuals perceive their own competence in relation to different challenges� “empirical research illustrates that students with ‘high self-efficacy for a specific task are significantly more likely to do the things necessary to succeed at the task and far more likely to persist in the face of adversity than are individuals with low self-efficacy in relation to that specific task�” christensen, supra�, note 43, at 72, citing to ruth ann mckinney, depression and anxiety in law students: are we part of the problem and can we be part of the solution?, 8 legal writing: j� legal writing inst� 229, 234 (2002)� christensen found that “law students with higher class rank tended to have lower academic self-efficacy” which may, in part, be due to the nature of law school pedagogy� christensen, supra�, note 43, at 71–72, 77–78� 52 thomas goetz, anne c� frenzel, nathan c� hall, and reinhard pekrun, antecedents of academic emotions: testing the internal/external frame of reference model for academic enjoyment, 33 contemporary educational psychology 9, 10 (2008)� teachers’ perceptions of whether or not students are engaged and are actually internalizing the educational experience are often incorrect� “[i] t can be assumed that teachers’ domain-general conceptions can lead to false inferences regarding the emotions experienced by individual students in different domains� for example, a teacher may incorrectly assume that a student who is bored in his or her class also feels bored in most other classes� such a dispositional, domain-general explanation could result in less responsibility being felt by teachers for students’ affective engagement in their own classes�” id�, at 28� 53 for instance, approximately 18 years ago i wrote an article applying visual learning theory to law teaching, opening students’ eyes: visual learning theory in the socratic classroom, 15 law & psychol� rev� 1 (1991); see also, william wesley patton, an opening gambit in teaching juvenile law: creating icons of normative family structures, 20 law & psychol� rev� 1 (1996)� “interestingly, only 26% of the first-year law school students we tested had high auditory strength, whereas 5% of their classmates were low in auditory strengths� as for visual strengths, only 8% of those we tested had high visual strengths, whereas 12% were low in their visual strengths… [also] 21% were high in tactual strengths [what they write], and 16% were high in kinesthetic strengths�” robin a� boyle, teaching law students through individual learning styles, 62 alb� l� rev� 213, 227–228 (1998)� multiple students experiencing a variety of emotions… [and] the teachers’ emotions are integral to their motivation and cognition and ultimately their teaching effectiveness�”54 however, in the majority of law school clinics the clinical professor selects a substantive field of practice and focuses any pro bono efforts on a target group� the professor’s act of selection projects to students the professor’s subjective sense of “justice”�55 however, what effect does the professor’s definition of justice have on clinic students who do not share the same ethical, political views, and/or sociological perspectives?56 for instance, in a law school landlord/client clinic, what does the professor’s valuation of representing the tenant have on a student who thinks that, at least sometimes, landlords are the ones who are unjustly treated by the legal system?57 or in an environmental law clinic, what affect does the professor’s normative and evaluative decision to litigate a case to protect an endangered moth have on the student who comes to a very different getting back to the sandbox 110 54 debra k� meyer and julianne c� turner, re-conceptualizing emotion and motivation to learn in classroom contexts, 18 educ� psychol� rev� 377, 388 (2006)� one of the goals of selfdirected learning is to increase student engagement through motivation strategies� there are “three main forms of engagement: behavioral, emotional, and cognitive� behavioral engagement is indexed by participation measures, for example, school attendance, effort, persistence and attention� emotional engagement includes affective reactions to classroom, school or teacher and is measured as specific affects such as interest, boredom, happiness, anxiety� cognitive engagement refers to cognitive forms of investment in learning, for example, goals, strategic and self-regulatory processes�” mary ainley, connecting with learning: motivation, affect and cognition in interest processes, 18 educ� psychol� rev� 391, 401 (2006)� however, there are some drawbacks to permitting students too much latitude in using self-directed motivation in structuring their learning� “from the standpoint of their potential for having adaptive or societally desirable effects on the contents of motivation… it appears that identities are double-edged swords� in their early stages of development, they provide important sources of motivation for curiosity and exploration� however, as they become more clearly delineated, and especially if they become rigidly solidified… they begin to guide us more strongly toward certain experiences but away from others�” jere brophy, connecting with the big picture, 44 educational psychology 147, 155 (2009)� “[t]he interplay of student motivation and identity development can be usefully understood within a co-regulation (cr) model� co-regulation refers to the relationships among cultural, social, and personal sources of influence that together challenge, shape, and guide (‘co-regulate’) identity�” mary mccaslin, co-regulation of student motivation and emergent identity, 44 educational psychologist 137, 137 (2009)� although professors may be experts in the substance and pedagogy relating to the topic of the course, “students are likely to be experts in the contingencies of their social environments���” id�, at 137� 55 the clinical experience is obviously more than an environment in which students learn advocacy skills� it is also an environment in which they can view relative depravation, explore the power dynamics of legal institutions, and can begin to form an ethical and professional role model� it offers students an opportunity for “[c]ontemplative education [which] is concerned with the development of the ‘whole person’” and is “a set of pedagogical practices designed to cultivate the potentials of mindful awareness and volition in an ethical-relational context in which the values of personal growth, learning, moral living, and caring for others are nurtured�” robert w� roeser and stephen c� peck, an education in awareness: self-motivation, and self-regulation learning in contemplative perspective, 44 educational psychologist 119, 127 (2009)� 56 one of the major goals of a law school education is to help students develop critical thinking skills� “modernist theorists conceive of it [critical thinking] in terms of both the ability and the disposition to critically evaluate beliefs, their underlying assumptions, and the worldviews in which those beliefs are embedded�” duck-joo kwak, re-conceptualizing critical thinking for moral education in culturally plural societies, 39 educational philosophy and theory 460, 462 (2007)� clinical students can develop their critical thinking skills both by engaging the clinical faculty and other students in the dynamics and results of case selection, as well as by making individual case and substantive area clinical choices as well� 57 at the beginning of my teaching career at ucla law school, i co-taught a trial advocacy course with paul boland� that course was interesting because the students represented two different groups: tenants in eviction proceedings and parents in the dependency system who were charged with child abuse and/or neglect� our students had cost/benefit analysis regarding ecology and commerce?58 a professor’s social justice selection can conflict with the essence of self-directed learning� “in autonomy-supportive contexts, instructors empathize with the learner’s perspective, allow opportunities for self-initiation and choice, [and] provide a meaningful rationale if choice is constrained…”59 in addition, the nature of the legal task and the students’ involvement in those lawyering activities often determine the types and quality of student motivation� thus, learning may be “intrinsically motivated (i�e�, was undertaken for its inherent interest and enjoyment) or was extrinsically motivated (i�e�, was done to attain an outcome that is separable from the learning itself… [a]utomomous motivation [which] involves the experience of volition and choice… [and] controlled motivation [that] involves the experience of being pressured or coerced�”60 in addition to motivation, emily zimmerman has recently noted that “law student enthusiasm” toward the study of law is a critical determinant of students’ quality of educational experiences, their emotional levels of distress, and their post-graduation attitude toward the practice of law as 111 international journal of clinical legal education autumn 2011 radically different reactions to the two groups of clients� some students found the battle of tenants against landlords as a form of crusade for the disadvantaged, while a much smaller group found it very problematic that rent control ordinances and the “technicalities” of eviction law permitted tenants to stay in apartments even though they had unreasonably failed to pay at least a fair rent for the habitable portion of their apartment� of course, i attempted to provide a teachable moment by discussing descriptions of lawyers’ and students’ reactions to the politics of landlord/ tenant law by introducing law review articles such as homer c� larue’s, developing an identity of responsible lawyering through experiential learning, 43 hastings l�j� 1147 (1992)� but those discussions, although interesting, did not appear to have a significant impact on many students’ attitudes about this type of pro bono representation� the reactions to representing accused child abusers were equally mixed� most students initially were repulsed by the facts discovered in the parents’ cases, while others saw these as cases where the government must be put to the test of meeting its burden in order to curtail unreasonable official conduct and social engineering� although it has been argued that “[e]mpathy is among the most important lawyering skills that students can learn in a clinic”, we have no empirical evidence that our introduction of empathic literature actually affects a substantial percentage of clinical students or whether those momentary glimpses of compassion persist during the students’ legal careers� philip m� gentry, clients don’t take sabbaticals: the indispensable in-house clinic and the teaching of empathy, 7 clinical l� rev� 273, 275, 278 (2000)� “there are there phases of adult learning when encountering ‘disoreinting moments’ that can result in perspective transformation� first, there is the ‘disorienting experience’ in which a meaning scheme is placed in jeopardy� next, the learner engages in exploration of and reflection on the content of the problem itself, or the premise upon which it is predicated� finally, the learner enters a ‘reorientation’ stage� here the learner creates means for coping with the problem should it arise again�” aiken, supra�, note 19, at 25� but we do not posses empirical data on how many clinic students actually transform their personal views after having encountered “disorienting” lawyering contexts� 58 “fairness theory also offers important distinctions among the concepts of self-interest, fairness, and satisfaction� perhaps most importantly, fairness is related to, but not synonymous with, selfinterest��� additionally, it is necessary to make a vital distinction between outcome satisfaction and process satisfaction�” craig w� wendorf and sheldon alexander, the influence of individual – and class-level fairness-related perceptions on student satisfaction, 39 contemporary educational psychology 190, 194 (2005)� in other words, a student may be quite pleased with the process and lawyering skills gleaned from a clinical course, but may be equally dissatisfied and troubled by the outcome or the perceived justice in achieving what the professor concluded was a just goal and result� 59 maarten vansteenkiste, willy lens, and edward l� deci, intrinsic versus extrinsic goal contents in selfdetermination thoery: another look at the quality of academic motivation, 41 educ� psychologist 19, 21 (2006)� 60 id�, at 19� “[p]eople have a primary motivational propensity to engage in activities that allow them to feel a sense of personal causation… [and] individuals experience ‘causality pleasure’ when they perceive themselves as the initiator of their behavior�” id�, at 20� educational psychology is beginning to understand that the types and degree of student motivation have a great impact on a profession�61 zimmerman notes that student enthusiasm has two variables, interest and vitality, and that interest is a four staged process in which professors need to tailor pedagogy and both summative and formative assessments according to the students’ individual stages of interest and knowledge�62 vitality refers to “law students’ subjective feelings of energy regarding law study�”63 vitality is closely related to self-determination theory since vitality scores increase as tasks are autonomously selected and based upon external motivation�64 research on student enthusiasm supports “giving students choices about topics to study� both interest and vitality can be promoted when individuals feel that they are engaged in an activity of their own choosing�”65 as margaret barry has warned us, there is a “risk of permitting clinic precepts of social justice, commitment and professionalism to deconstruct into alienation, intolerance and mediocre performance” for some clinic students�66 although clinical professors may hope that students’ reflections upon meaningful lawyering events may be transformative in relation to those students’ notions of social justice, we simply do not have sufficient evidence to determine the frequency of such change�67 iii. a review of three years of data regarding the whittier law school legal policy clinic at first my sandbox image and my goal of introducing a legal laboratory for pedagogical play68 into getting back to the sandbox 112 student achievement� the “differences between the percentage of variance in student performance… [is explained] by three types of motivation: goal types, sources of enjoyment and general motivation to learn�” david kember, amber ho, and celina hong, the importance of establishing relevance in motivating student learning, 9 active learning in higher education 249, 252 (2008)� 61 emily zimmerman, an interdisciplinary framework for understanding and cultivating law student enthusiasm, 58 de paul l� rev� 851, 853–854 (2009)� 62 zimmerman, supra�, at 857-860� zimmerman describes the “four phases of interest as ‘triggered situtational interest,’ ‘maintained situational interest,’ ‘emerging individual interest,’ and ‘well-developed individual interest�’” id�, at 859 (discussing and quoting from suzanne hidi, k� ann renninger & andreas krapp, interest, a motivational variable that combines affective and cognitive functioning, in motivation, emotion, and cognition: integrative perspectives on intellectual functioning and development 89, 92 (david yun dai & robert j� sternberg, eds�, 2004)� students progress dynamically through the four levels of interest in relation to different topics based upon whether the interest is internally or externally triggered, whether and what kind of support the student receives, the amount of knowledge acquired surrounding the topic, and the degree of independence and perseverance attached to the exploration� zimmerman, supra�, at 859–861� 63 zimmerman, supra�, at 857� 64 zimmerman, supra�, at 870, 884� 65 zimmerman, supra�, at 909� zimmerman suggests that giving first year students a choice of one elective from a menu of courses will add to their enthusiasm for the study of law� id�, at 911� 66 margaret martin barry, clinical supervision: walking that fine line, 2 clinical l� rev� 137, 138 (1995)� “if a student who signs up for a public benefits clinic becomes disenchanted with the idea of welfare, and further, the beginnings of a firm moral objection to it grows out of the clinic experience, this can generate significant barriers to performance predicated upon a commitment to assuring clients get the benefits for which they qualify�” id�, at 154� 67 “[r]eflection and internalization go hand in hand, with an understanding that reflection includes a gradual transformation of originally discrete external social knowledge into embedded and absorbed personal knowledge�” alison le cornu, meaning, internaliztion, and externalization: toward a fuller understanding of the process of reflection and its role in the construction of self, 59 adult education q� 279, 284 (2009)� although clinic students’ reflections may be transformative, we do not necessarily know transformative of what and in what ways their concepts of social justice and professionalism are modified by the clinic experience� 68 although some might accept the concept of play as important to the development of younger children, historically play has not been easily accepted as the law school curriculum appeared inconsistent with the realities of creating a graded69 clinical course that must jibe with all law school academic rules and regulations�70 however, the more difficult problem was actually implementing a student self-directed and self-selected process for legal projects� as i quickly discovered, as legal novices in the area of public policy advocacy, many of the clinic students were not yet equipped with sufficient expertise to intelligently select the types of projects and the specific topics within those projects that they would advocate�71 cognitive load 113 international journal of clinical legal education autumn 2011 a serious pedagogical device� for instance, in “colonial times, the tendency of children to play was taken to be a sign of their moral laxity, and adults admonished children to avoid the frivolity of play in favor of work and study… [however in] 1896 george herbert mead called on educators to base children’s early educational experiences on spontaneous play activities called forth by the proper use of natural stimuli�” “[t]he history of the pedagogy of play reveals practices of delimiting and governing what counts as valuable play, and the suppression and assimilation of particular aspects of the child’s will to play�” andrew gibbons, philosophers as children: playing with style in the philosophy of education, 39 educational philosophy and theory 506, 513 (2007)� nancy r� kind, play: the kindergartners’ perspective, 80 the elementary school journal 80, at 80–81 (1979)� “[f]reedom of choice and action are fundamental to the pedagogy of the kindergarten���” mary boomer page, the present point of view of the plays and games of the kindergarten, 9 the elementary teacher 341, 341, 345, 353� see also, jaipaul l� roopnarine, mohammad ahmeduzzaman, seanna donnely, preeti gill, andrea mennis, lauren arky, kristen dingler, mary mclaughlin, and enayet talukder, social-cognitive play behaviors and playmate preferences in same-age and mixed-age classrooms over a 6-month period, 29 american educational research j� 757, 772 (1992)� 69 some argue that adult learning theory requires a different method of student evaluation and grading� “as a zero-sum system, a mandatory curve also creates anxiety and undermines the security and relatedness needs��� zero-sum grading also obstructs the natural impulse for growth through integration of personal authenticity and competence with social connectedness and sensitivity… because the system sets its primary indication of personal competence in direct conflict with helping and supporting others�” krieger, supra�, note 44, at 297–298� “although traditional grading methods usually are based on the one-sided evaluations of students by teachers – which is disfavored in andragogical theory – the solution is not necessarily to eliminate grades or to reduce the rigor of the evaluation process by means of a pass/fail system� instead, the student, together with the instructor, should assess the students’ performance at critical points during representation in order to evaluate the work in the case, to determine the student’s learning needs and to measure the student’s overall progress� just how students finally are graded or evaluated at the end of the course is not so important, since the positive, andragogically based process of shared evaluation between the student and the teacher already will have taken place�” bloch, supra�, note 43, at 350� 70 the legal policy clinic is a hybrid course� clinical courses have traditionally been declined into: 1) live-client; 2) simulation; and 3) field placement externships� deborah maranville, passin, context, and lawyering skills: choosing among simulated and real clinical experiences, 7 clinical l� rev� 123, 124 (2000)� in the legal policy clinic, although students do not represent individual clients, they do engage in advocacy in a variety of actual cases and/or controversies in the appellate courts, congress and state legislatures, and in the media� in addition, although they do not provide services in offcampus externships, they must often engage in interdisciplinary fact investigation with experts in a variety of business and legal environments� further, some of the students’ work product, especially their legislative analyses and community lawyering projects are similar in structure to seminar papers and/or independent study projects� therefore, the exact grading requirements for the clinic overlapped with the specific and often conflicting grading policies for live-client, simulation, seminar and independent study requirements at whittier� also, if the class must be graded on a curve, how does the professor compare the extremely diverse bodies of work of different students? if students have discretion to define their projects, comparisons among clinic students become much more difficult� additionally, what should be measured in determining a grade in such a hybrid clinic? should the grade be a comparison of similar assignments, growth of the students in terms of policy advocacy skills and/or sensitivity to the need for and expertise in pro bono and public interest law? i ultimately decided to grade on several variables: (1) students’ selection of and the student’s growth in selecting projects; (2) sophistication of research; (3) caliber of finished project; and (4) students’ self-evaluation and reflection on the processes and products� 71 although “experts are reluctant to accept problems as defined by others and are willing to explore multiple differential diagnoses in parallel processes theory is increasingly demonstrating that learning theory must assess students’ individual cognitive structures in order to properly assess the most effective methods and pace of instruction� because inexperienced students increase their cognitive abilities “instructional designs need to change� for more knowledgeable learners, the limitations of wm [working memory] are not the same as novices, because previously learned information stored in ltm [long-term memory] can be activated, effectively increasing the capacity of wm for domain-related information�”72 therefore, at least at the beginning of the semester providing clinic students with ultimate discretion over project selection is not consistent with educational psychology because “[r]ealistic whole tasks are often too difficult for novice learners without some form of simplification�”73 in addition, novice student competency regarding difficult task selection is not affected by students’ motivation levels; they may be excited about the task or take ownership in task selection even if they lack sufficient competency to determine the variables inherent in case or project selection�74 thus, inexperienced law students’ motivation and excitement to tackle a social problem might lead to overly ambitious projects that could lead to considerable frustration during implementation� even though adult learning theory supports student autonomy, the “debate over the benefits and drawbacks of offering choice in the classroom has intensified in recent years…[and] [t]he empirical findings concerning the benefits of choice are equivocal and confusing�”75 there is no simple equation of: adult student desire for autonomy + student motivation + student task selection = successful clinical instruction since the process and environment of choice is both complex and involves interrelationships among the professor and the student making the choice and among that student and all other students in the class: getting back to the sandbox 114 in order to discover, even ‘create,’ the real problem to be solved”, novices do not necessarily relish such discretion and often do not have the framework for making those fundamental decisions without instructor assistance� brook k� baker, learning to fish, fishing to learn: guided participation in the interpersonal ecology of practice, 6 clinical l� rev� 1, 46 (1999)� although adult learning theory prizes student autonomy, it also recognizes that skills instruction must be tailored to students’ stages of development� robin a� boyle, supra�, note 47, at 232� for a discussion of the social and pedagogical concerns of the coordination student experience and pedagogy, see, craig l� feldbaum, terry e� chirstenson, and edgar c� o’neal, an observational study of the assimilation of the newcomer to the preschool, 51 child development 497, 506 (1980)� 72 paul ayres and fred paas, interdisciplinary perspectives inspiring a new generation of cognitive load research, 21 educ� psychol� 1, 2 (2009)� 73 rob j� nadolski, paul a� kirschner, and jeroen j� g� van merienboer, optimizing the number of steps in learning tasks for complex skills, 75 british j� of educ� psychol� 223, 224 (2005)� nadolski, et� al� further found that especially when teaching professional degree students topics such as “diagnosing diseases” or “preparing a plea in court”, “[l]imiting the number of steps in learning to solve complex tasks leads to optimal learningeffectivness… [t]oo many steps made the learning task less coherent… [and] too few steps led to a lower performance on the learning task�” id�, at 223, 234� 74 “increasing task motivation is not helpful for a learning task that is so difficult that it is impossible to solve�” id�, at 226� clinicians, of course, can help increase student competencies for autonomous case selection� “the following aspects of instruction and teacher behavior have an effect on the way students’ self-regulate their learning: clarity and pace of instruction, the amount of structure provided, autonomy granted, teacher enthusiasm, humor, fairness, and teacher expectations about students’ capacity�” monique bockaerts and eduardo cascallar, how far have we moved toward the integration of theory and practice in self-regulation?, 18 educ� psychol� rev� 199, 204 (2006)� cognitive psychology clearly demonstrates that the learning process has different stages and contexts� “the first stage involves taking in new information� the second stage involves the integration of the new information into the structure of the learner’s existing knowledge structure� the third stage involves the process of recalling that information for use at appropriate times in the future�” paul s� ferber, adult learning theory and simulations – designing simulations to educate lawyers, 9 clinical l� rev� 417, 432 (2002)� 75 katz and assor, supra�, note 29, at 429� choosing to engage in an activity and choosing a mode of engagement are conceptualized as being affected by three factors: the person’s traits, the person’s behavior and the environment� for example, teachers’ feedback (an environmental factor) influences students’ self-efficacy (a personal factor) and leads students to choose more difficult tasks or more complex strategies (a behavioral factor)� in turn, choosing to employ more complex strategies promotes acquisition of skills and can lead students to feel more efficacious, thus inducing them to choose strategies and tasks in the future with even greater complexity�76 the reverse is also true; if students select topics that are too difficult in relation to their capacity or which are too complicated to perform competently within the constraints of the limited clinic semester, they are more likely to choose future tasks that are significantly less challenging than they are capable of performing�77 in addition, students’ motivational levels may decrease in relation to the negative feedback and/or from a sense of failure they experience from overambitious projects�78 after considering all of the different educational psychology theories, i chose a semi-autonomous case selection methodology for the legal policy clinic� first, i determined the genres of the legal assignments that students as non-lawyers could file on their own without me signing as the attorney of record:79 115 international journal of clinical legal education autumn 2011 76 id�, at 430� 77 “[m]ost people tend to choose tasks of intermediate difficulty, as this type of task gives them the most information about their capabilities and provides an optimal opportunity to increase their sense of competence… [i]n contrast, choice options that are too easy or too difficult undermine motivation�” id�, at 435� novices use “backward reasoning” which is a form of thinking “ ‘backward from goals, by mapping the various roads that might be taken to each goal, by proceeding backward step by step along each road and asking what steps have to be taken before each following step can be taken�’” however, experts us “forward reasoning” by taking “‘the entire pattern of symptoms and laboratory results and reasoning forward from them to a likely diagnosis� it is not difficult to see that it is the expert physician’s vast store of templates, of patterned symptomology, that makes forward reasoning possible�” mare neal aaronson, we ask you to consider: learning about practical judgment in lawyering, 4 clinical l� rev� 247, 293–294 (1998)� 78 according to self-determination theory, “there are three basic psychological needs that when satisfied enhance intrinsic motivation and lead to autonomous internalization of behaviors of initial extrinsic origin��� the three psychological needs posited by sdt are the need for autonomy, the need for relatedness, and the need for competence�” id�, at 430–431� however, the relationship between the emotional reactions to achievement is still not fully understood� “research on emotions in education and on human emotions more generally, is in a state of fragmentation� while theories and studies prevail which address single emotions… or single functions of emotions… more integrative approaches are largely lacking� the control-value theory of achievement emotions… offers an integrative framework for analyzing the antecedents and effects of emotions experienced in achievement and academic contexts�” reinhard pekrun, the control-value theory of achievement emotions: assumptions, corollaries, and implications for educational research and practice, 18 educ� psychol� rev� 315, 315 (2006)� see also, peter op‘t eynde and jeannie e� turner, focusing on the complexity of emotion issues in academic learning: a dynamical component systems approach, 18 educ� psychol� rev� 361 (2006)� “interested and challenged learners who believe that they will understand the learning material come up with better strategies and enjoy learning� when each factor was considered separately in correlation analyses, anxiety turned out not to be a good predictor of performance�” regina vollmeyer and falko rheinberg, motivational effects on selfregulated learning with different tasks, 18 educ� psychol� rev� 239, 249 (2006)� 79 unlike the normal legal clinic in which the professor chooses the clients and issues, in the student self-selected policy clinic students often take political and legal positions that run counter to the professor’s philosophical and legal positions� it is therefore important to find lawyering tasks in which students can not only be the authors, but also, if possible, to use types of legal documents that they can file on their own� the first year that i offered the clinic one student decided that for his community lawyering project that he would work with a group of local environmentalists to (1) a letter to the editor;80 (2) a legislative analysis of a pending bill;81 (3) an appellate brief in the california court of appeal or california supreme court;82 and (4) a community lawyering project�83 getting back to the sandbox 116 protest the construction of an ikea warehouse store approximately one-half mile from the law school because it arguably would negatively impact the traffic congestion� the problem is that the project was being built on land owned by the person who was selling the law school land it wanted to develop and that person had donated considerable money to the law school� even if i might have agreed with the student’s community lawyering project in trying to stop the development, i would have placed the law school in a politically compromised position by signing on to the project if they sought an injunction or filed an opposition to the environmental impact report� however, since the student was not representing the clinic or the law school, we ameliorated a difficult problem� 80 students were asked to select any news article in any written media source on any legal topic of their choice, and were then asked to write a letter to the editor in response� if students choose a foreign language media source they must provide me with a translation of both the original source and with their response� 81 this exercise permits students to select a bill pending in any of the fifty united states legislatures or in congress� the students are required to select the topic, write a legislative analysis of the bill, and to send the bill to the appropriate legislative committees and to any lobbyists who might use the student’s analysis to perfect change in the legislation� 82 in california non-lawyers, including law students, can file four different types of documents in the appellate courts� since california court of appeal decisions are only selectively officially published, students can file a request for publication of an unpublished opinion pursuant to california rule of court, rule 978 that provides: “[a] request by any person for publication of an opinion not certified for publication may be made only to the court that rendered the opinion� the request shall be made promptly by a letter stating concisely why the opinion meets one more of the publication standards [stated in rule 976]� the request shall be accompanied by proof of its service to each party to the action or proceeding in the court of appeal�” [emphasis supplied]� students can also file a request for depublication in the california supreme court to overrule the decision of the court of appeal to officially publish the case� california rule of court, rule 979(a) provides that “[a] request by any person for the depublication of an opinion certified for publication shall be made to the supreme court within 30 days after the decision becomes final as to the court of appeal… and shall state concisely reasons why the opinion should not remain published and shall not exceed 10 pages�” students can also file a brief in support or opposition to granting petition for review in the california supreme court pursuant to california rules of court, rule 14 (b) which provides that “[a]ny individual or entity desiring to support or oppose the granting of a petition for review or original writ in the supreme court shall lodge a letter in that court in lieu of a brief amicus curiae…�” finally, in california since filing an amicus curiae brief as a true friend of the court, and not as a one representing a party in the appellate action, is not the practice of law, students can arguably file amicus curiae briefs in the california appellate courts without noting that it is in support or in opposition to any party� for instance, in duggan v� commonwealth of virginia, 1993 wl 44562 (feb� 23, 1993, not reported), a non-party who also was not an attorney filed an amicus curiae brief on behalf of the virginia division of motor vehicles� the court refused to file the brief, in part, because it was not signed by an attorney as required by rules of court, rules 5a:23(c) and 5a:20(g)� however, the court noted that if the brief had been filed in the person’s “individual capacity” rather than as the representative of another person or organization, the signature by an attorney requirement would not have been applicable� (id�, at *2)� see also, state bar of michigan v� galloway, 335 n� w� 475 (1983); boumediene v� bush, 476 f� 3d 934 (2006) [amicus brief denied for other policy grounds]; in re carlos, 227 b�r� 535 bkrtcy�c�d�cal� (may 20, 1998)� 83 although all “[s]ervice-learning promotes its objectives to increase opportunities for students in the community, strengthen community relationships, and provides integrative learning experiences for students”, in order for students to internalize the community service in a way that will have long-lasting effects, students “require a sense of ownership in the civic experience: engage in meaningful experiences, discuss their activities, and make decisions that influence the quality of their service�” self-directed learning is thus a relevant component to designing and implementing community lawyering projects� thomsas d� bordelon and iris phillips, service-learning: what students have to say, 7 active learning in higher education 143, 143, 145 (2006)� 84 since some of my foreign students and some of my llm students wanted to write in their native tongue in their community newspapers, i expanded the range of publications for their letters to the editor� the students provided me with the assignment in english and in their own language� the expansion of options noticeably increased some of the students’ motivation to write the letters to the editor� the only problem arose when one student who is a political exile chose to write the letter to the editor in his previous hometown newspaper� i was worried that some type of political retaliation might place the student at risk� thankfully, nothing happened, possibly because his letter to the editor was never accepted for publication� 85 because of my other responsibilities as associate dean for clinical programs, i have only been able to offer the legal policy clinic three times� however, i intend to offer the course again in the fall 2010 semester� in the second year of running the policy clinic, based upon student input, i added the following modifications to the assignments: (1) a letter to the editor of any newspaper or journal in the world;84 (2) the legislative analyses were extended to any bill in congress or in any state legislature and/or to students drafting their own bills, writing a legislative analysis, and attempting to find a sponsor for their bill; and (3) i permitted groups of students, if they so chose, to work on a community lawyering project� but the greatest difference between these assignments and those that i for years have assigned in my live-client clinics is that the students had sole discretion to choose the topics for each of the lawyering tasks that i assigned� thus, the clinic had no specific substantive focus� here is a list of the types and substantive topics of the students’ legal projects during the first three years of the legal policy clinic:85 appellate briefs: in re charles t� [juvenile]; mason v� california dept� of real estate [real property]; in re kekoa s� [delinquency]; people v� canty [criminal]; people v� english [criminal]; martin v� county of los angeles [emotional distress damages]; in re michael g� [child abuse]; in re anthony c� [termination of parental rights]; in re s�s� [domestic violence, sexual abuse]; santos v� grand portage band of chippewa indians [native american family doctrine]; motevalli v� los angeles school district [first and fourth amendment rights]; people v� stewart [criminal]; in re kendall [dna evidence]; people v� ferguson [search and seizure]; rackohn v� goldberg [attorney fees]� legislative analyses: abx4–15 [workers’ compensation]; h�r� 2198 [mental health]; h�r� 2873 [foster care]; s� 156 [crime bill]; a�b� 540 [immigrant rights]; a�b� 1450 [parolee tracking]; 117 international journal of clinical legal education autumn 2011 h�r� 1198 [reparations under the state prisoner of war act]; s� 911 [endangered species recovery act]; s� 1147 [aviation security act]; h� r� 46 [education]; h� r� 863 [sentencing]; h�r� 912/s 486 [student loan forgiveness]; h�r� 2437 [child protection services workforce improvement act]; h�r� 119 [right to bear arms]; h�r� 5005 [homeland security]; h�b� 2862 [anti-smoking]; s� 1165 [juvenile crime prevention]; s� res� 35/ h� res� 88 [victims’ rights]; s� 800 [innocence protection act]; s� 342 [quality classroom act]; a�b� 1447 [child abuse reporting]; s�b� 2816 [armed services tax fairness act]� community lawyering projects: culturally focused domestic violence counseling in the asian american community; wheels of justice: legal aid services from a roving motor home; community organizing over hazardous storm drains; community organizing regarding land usage; community education on rent stabilized housing; counseling for non-english speaking vietnamese immigrants in places of worship; kinship caregivers’ rights; developing the urban focused legal services project in toledo, ohio; volunteer family maintenance program for parents with custody of wards of the court; creating a free local legal data base for the public; a feasibility study for adding public parking spaces for tenants in long beach; creating an animal education and awareness program in the city of paramount; bundling services for latch-key children; work force development strategies for the poorly education in santa ana, california� the breadth of student selected legal projects is astounding when compared with the narrow focus of most law school legal clinics� section iv discusses the challenges for the clinical law professor as legal specialist operating in such a generalist’s legal universe in which students’ projects may be diametrically opposed to the professor’s sense of social justice� iv. the role of the clinical faculty member in a student project selected policy clinic the students’ legal policy clinic advocacy topics are extremely broad and encompass what traditionally might be termed both conservative and liberal political issues� therefore, it is likely that the clinical professor will need to adjust to at least two variables not always present in other professor-defined clinics� first, since the clinician will probably not be an expert in many of the substantive areas in which students conduct their research, how can the professor properly mentor the students, and what is the professor’s role in this type of clinic? and, second, what pragmatic getting back to the sandbox 118 and psychological effects will the clinical faculty member have from the mentoring of students on projects that might be antithetical to the professor’s own political vision? a. the partially effaced narrator clinician we are used to being at the center of the universe in our clinics because we are usually substantive and procedural experts, we choose the types of cases the students will work on, and we are ultimately the one responsible to the client under the rules of professional responsibility�86 one might conclude from my call for a “sandbox clinic” which is student directed and selected that i am effacing the clinical professor from the clinic experience�87 nothing could be further from the truth; a clientless policy clinic permits us to transmogrify into a different kind of mentor�88 119 international journal of clinical legal education autumn 2011 86 for an interesting discussion regarding why teachers tend to control students and the learning environment, see, johnmarshal reeve, why teachers adopt a controlling motivation style toward students and how they can become more autonomy supportive, 44 educational psychologist 159 (2009)� “students need to learn to become autonomous learners and they need to be made aware that levels of achievement at university are directly related to the development of the skills of autonomous learning�” diane railton and paul watson, teaching autonomy: ‘reading groups’ and the development of autonomous learning practices, 6 active learning in higher education 182, 191–192 (2005)� professors can derive great comfort in helping students become independent� “it is the empowerment that comes from acknowledging that the pupil is an active reasoned, a judge, not a mimic, someone who is responsive to the teacher’s invitation to join in the business of reasoning and making sense of ourselves, does so with the autonomy and, oftentimes, alacrity�” michael luntley, learning, empowerment and judgment, 39 educational philosophy and theory 418, 429 (2007)� 87 an effaced narrator is one that melds into a background where the storyteller’s value judgments are more or less tacit� “it widely held in theories of narrative that all works of literary narrative fiction include a narrator who fictionally tell the story� however, it is also granted that the personal qualities of a narrator may be more or less radically effaced�” george m� wilson, elusive narrators in literature and film, 135 philos� stud� 73, 73 (2007)� “hemingway’s narration seems designed to lessen the effect of a judging presence� his omniscient narrator may see and know all, but precious little is offered for consideration� this is called an effaced narrator��� more important, this narrator does not describe a character’s psychology, or tell the reader what should be thought about a character or event… but strives for objectivity� the readers are to judge what the characters say and do for themselves�” a clean, well-lighted place (style), answer�com, http://www�answers�com/topic/a-clean-wel-lightedplace-story-5; jahn manfred, narration as noncommunication: on ann banfirld’s unspeakable sentences’ [revised version of a paper originally published in kolner anglistische papiere 23 (1983) (http://www�uni-koeln�de/~ame02/jahn83�htm, at 14)� perhaps the best known effacement of an artist took place in john cage’s 1952 performance of his musical compositon 4’33” in which cage “created what is perhaps the ultimate form of minimalist creation” where the performance of the orchestra ‘consisted entirely of four minutes and thirty-three seconds of silence�” rikki sapolich, when less isn’t more: illustrating the appeal of a moral rights model of copyright through a study of minimalist art, 47 intellectual prop� l� rev� 453, 460 (2007); alan l� durham, the random muse: authorship and indeterminacy, 44 wm� & mary l� rev� 569, 604605 (2002)� “the meanings of silence are complex, varied, and often beyond interpretive understanding of the dominant culture� such resistance is also evident in the law school classroom, where students of color can withdraw their participation as a way of destabilizing the power dynamics and resisting the pressures to assimilate to the socializing norms of the credentializing experience�” margaret e� montoya, silence and silencing: their centripetal and centrifugal forces in legal communication, pedagogy and discourse, 5 mich� j� race & l� 847, 854 (2000)� montoya indicates that one linguist has catalogued 20 different meanings of “silence” in communication� id�, at 860� on silence in the classroom, see also, stefan h� krieger, a time to keep silent and a time to speak: the functions of silence in the lawyering process, 80 oregon l� rev� 199 (2001)� 88 professors’ identities grow, shift, reshape, and sometimes morph during our careers� and our “[i] denities are constructed within discourse, through difference and in the context of contingency and ambiguity�” matthew clarke, the ethico-politics of teacher identity, 2 educational philos� and theory 185, 196 (2009)� “[a] number of theorists have framed learning to teach in terms of the development of a teacher identify, where identity references individuals’ knowledge and naming of historically, the triad of clinic professor, law student, and client has forced us to delicately balance our ethical duties of competence and zealousness to our clients with our equally essential pedagogical ethics of providing our clinic students with superb pedagogy�89 we have debated this balance at numerous clinical conferences and in dozens of law review articles, and as one might expect, no meta-model has emerged�90 we shed much of this concern in the clientless policy clinic as our focus intensifies on the student, and to a somewhat lesser extent, on the student’s choice of topic� in the law school legal policy sandbox the students, to a large degree91 “construct their own knowledge…” where constructivism replaces “the teacher as the center of knowledge (objective), with the learner (subjective)� independent of the teacher, each learner’s subjective experiences getting back to the sandbox 120 themselves, as well as others’ recognition of them as a particular sort of person�” id�, at 186� 89 of course, under the modern legal ethics movement the triad is becoming the quadrad as governmental agencies add the community to the list of those for whom the lawyer is ethically responsible, for example, under the sarbannes/oxley statute� “in recent decades, the law governing lawyers has begun to fragment� nowadays, a lawyer’s duties often cannot be found in a single body of rules, such as the aba model rules of professional conduct, but are likely to vary with the lawyer’s specialty, the tribunal or agency before which the lawyer practices, the state or states in which the lawyer is acting, and other factors�” john leubsdorf, legal ethics falls apart, 57 buff� l� rev� 959, 959 (2009)� leubsdorf recognizes several trends in the “fragmentation” of legal ethics: (1) rules restrain lawyer’s representation of express clients’ goals; (2) the new rules are specialized by area of practice; (3) the new rules include non-lawyers and may not even specifically mention attorneys or address conflicts with other ethical rules systems; (4) a greater variety of different regulatory bodies have sought to regulate attorneys; and (5) the new regulators, legislative, administrative and judicial are mainly federal regulators� id�, at 959–962� 90 “clinical theory currently emphasizes that student learning is highly dependent on a close, supportive, but ultimately non-directive relationship with a clinical supervisor whose principal agenda is teaching before-and-after-the-fact, not lawyering during-the-fact�” baker, supra, note 60, at 3� “the primary reason cited for these conflicts between clinicians’ opinions and practices [regarding nondirective, modeling, and collaboration theories] was a commitment to provide high quality client service� respondents were concerned that nondirectiveness meant that clients were served by the modest abilities of most students, thereby reducing the quality of service that the supervisor believed could have been delivered�” harriet n� katz, reconsidering collaboration and modeling: enriching clinical pedagogy, 41 gonz� l� rev� 315, 324 (2006)� for a discussion of the nuances of supervision and recognition that the level of supervision might fluctuate with the abilities of different students and as students gain competence, see, caroyln grose, flies on the wass or in the ointment? some thoughts on the role of clinic supervisors at initial client interviews, 14 clinical l� rev� 415, 420–422 (2008); justine a� dunlap and peter a� joy, reflection-in-action: designing new clinical teacher training by using lessons learned from new clinicians, 11 clinical l� rev� 49, 84 (2004)� 91 peter boghossian, behaviorism, constructivism, and socratic pedagogy, 38 educational philos� & theory 713, 714–715 (2006)� “behaviorism is diametrically opposed to constructivism� unlike constructivists, behaviorists believe that knowledge does not depend upon introspection, and they completely reject discussion about internal mental states� rather, behaviorism’s focus is on the external observation of lawful relations and among outwardly observable stimuli and the responses that flow�” id�, at 715� “there are three fundamental differences between constructivist teaching and other teachings� firstly, learning is an active constructive process rather than the process of knowledge acquisition� secondly, teaching is supporting the learner’s constructive processing of understanding rather than delivering the information to the learner� thirdly, teaching is a learning-teaching concept rather than a teachinglearning concept� it means putting the learner first and teaching is second so that the learner is the center of learning�” jong suk kim, the effects of a constructivist teaching approach on student academic achievement, self-concept, and learning strategies, 6 asia pacific education review 7, 9 (2005)� some studies have shown that constructivist pedagogy results in higher and more persistent student achievement� “more discoveryoriented and student-active teaching methods ensure higher student motivation, more learning at higher cognitive levels, and longer retention of the knowledge [citations omitted]� not only do active learning exercises help students learn… they also increase their confidence with class materials�” isabelle d� cherney, the effects of active learning on students’ memories for course content, 9 active learning in higher eduation 152, 154 (2008)� now have a special and unique meaning� it is both the student’s learning experiences and her perceptions of those experiences that have educational value�”92 so, what is the clinician’s role in the policy clinic? even if the professor may not be an expert in the substantive area of the students’ chosen projects,93 the professor still possesses expertise on the procedural aspects of the advocacy�94 for instance, in my policy clinic i can introduce students to the technical procedural and advocacy skills inherent in the genre of lawyering assignments the students will practice: letters to the editor, legislative analyses, appellate briefs, and community lawyering projects� for example, take the shortest assignment, the letter to the editor� this is the perfect introductory assignment because its structure and content seem so intuitive; a student just reads an article and gets on a computer and types a very short response� however, writing letters to the editor is a microcosm of all legal advocacies� first, the students must determine the procedural rules for this type of advocacy such as the limit on the number of words, the timeline between the article’s publication and receiving letters to the editor, and whether or not and to what extent the student must supply identifying information�95 second, students must learn the best advocacy strategies for getting their letters to the editor published, the publicity benefits to themselves and their potential law firms and/or clients in using letters to the editor, and the potential political and 121 international journal of clinical legal education autumn 2011 92 boghossian, supra�, note 78, at 715� 93 i acknowledge that my policy clinic is counter trend since it is a generalist’s clinic at a time when most clinics have moved to more and more specialization� “civil clinical programs have moved to specialize for multiple reasons� specialization promotes efficiency in delivering legal services� second, specialization makes the teaching experience more predictable� it increases the comfort level of both students and teachers� there is a perception that the quality of representation is likely to be higher� some clinics specialize to further a specific service or social justice agenda� some clinics specialize because of faculty expertise and interests… [but] [a] clinical program that begins with a limit on the subject matter or the representation invariably limits who the clients will be…�” antoinette sedillo lopez, learning through service in a clinical setting: the effect of specialization on social justice and skills training, 7 clinical l� rev� 307, 309, 320 (2001)� 94 those who argue that non-directed constructivist pedagogy is ineffective rest their arguments on the cognitive distinction between working memory which is limited in duration and short-term unless quickly rehearsed and long-term memory where data and patterns are permanently retained� under this cognitive load theory, if novices are required to use extensive short term memory in learning new information and/or procedures, they will be less able to transfer that information into long-term memory� some researchers have “noted that despite the alleged advantages of unguided environments to help students to derive meaning from learning materials, cognitive load theory suggests that the free exploration of a highly complex environment may generate a heavy working memory load that is detrimental to learning� this suggestion is particularly important in the case of novice learners, who lack proper schemas to integrate the new information with their prior knowledge�” paul a� kirschner, john sweller, and richard e� clark, why minimal guidance during instruction does not work: an analysis of the failure of constructivist, discovery, problem-based, experiential, and inquirybased teaching, 41 educational psychologist 75, 80 (2006)� there is also some empirical data that demonstrates that a purely problem based pedagogical model is inferior to one that also includes traditional instruction in “knowledge organization and schema acquisition” which requires a more directed teaching approach� id�, at 82–83� the model i proffer for the legal policy clinic combines elements of both non-directed and student-selected learning with the more formal and directed elements of knowledge and schema acquisition regarding the legal procedural elements of each genre of public policy advocacy� the public policy teacher/ mentor thus provides specific information to enable students to implement their self-selected and politically defined projects� 95 some of the students whose letters to the editor were published were very surprised at receiving emails from the journal’s editor asking for a confirmation response as a check on the authenticity of the author� other students have received telephone calls as well� social benefits and risks of publishing their views on controversial topics�96 but the clinician’s place in the policy clinic also entails the traditional roles of mentor and role model� the law’s historical apprenticeship system reflects to some degree modern notions of the novice law clinic student learning by emulating the instructor’s expertise� “[s]everal strategies for interactions seem particularly important in the replication of expertise: (1) enlisting fully engaged participation by the novice; (2) being directive, but pluralistically so, in offering interpretative guideposts and suggestions for performance, (3) contextualizing performance tasks and being relatively task-centered with respect to the novice’s activities, and (4) demonstrating expert performance and exploring exemplars of practice�”97 mentoring by modeling is not necessarily inconsistent with student self-directed and student-selected pedagogy� for instance, i offer my students three types of expert modeling experiences� first, during the introduction of each genre of advocacy, and after we have studied the procedures and techniques of our advocacy model for that particular lawyering product, i provide the students with a number of my own work products for their critique� i have noticed that this sharing provides many educational benefits: (1) my willingness to become vulnerable to student criticism quickly helps to establish a bond with the students who, as novices, are equally vulnerable in this new legal environment ;98 (2) my sample of published letters to the editor ratifies the success of the strategies discussed in the class readings; and (3) my actual involvement with the lawyering skill as a pro bono activity helps model the goal of life-long public service� second, after students complete the graded legal policy clinic, they can getting back to the sandbox 122 96 i have the students read several articles on the strategies for getting letters to the editor published� for instance, they read, cliff schaffer, how to write letters to the editor (http://www�druglibrary� org/schaffer/activist/ howlte�htm); letter to editors hints, critical mass sydney (http://www�nccnsw� org�au/member/cmass/ advocacy/letters/hints� htlm); mesia quartano, animal rights: writing letters to the editor: step by step (http://animalrights� about�com/newissues/animalrights/library/weekly/ aa080799¬_example�htm); gary plummer, letters to the editor: credibility builder (http://www�grayrun� com/lettered�html); letters to the editor: why to write & how to get published (http://www� soundvision�com/media/lettertototheeditor�shtml); tips for writing effective letters to the editor, the cityherald�com (http://www�tri-cityhearld� com/ opinion/howtowriteletters�htm)� 97 baker, supra�, note 60, at 65 [emphasis supplied]� the mentor in the classical era was “at the same time a father-figure, a teacher, a role model, an advisor and a guide�” pau hennissen, frank crasborn, neils brouwer, fred korthagen, and theo bergen, mapping mentor teachers’ roles in mentoring dialogues, 3 educational research review 168, 169 (2008)� “although good mentoring is certainly helpful and inspirational, judgment is taught only in part by example and through imitation�” mark neal aaronson, we ask you to consider: learning about practical judgment in lawyering, 4 clinical l� rev� 247, 250 (1998)� “collaboraton and modeling provide excellent environments for students to begin their development as lawyers�” katz, supra�, note 60, at 316� the clinician’s role as mentor and model helps law students shape the reality of their experiences� “in short, what is called an ‘experience’ – even if a highly ambiguous one which seems to yield nothing more than a ‘sense’ of confusion and uncertainty – is precisely meaningful for the subject only insofar as its sheer sensuousness has been ‘overlayed’ by a grid of truth – or, what is perhaps more likely, by several overlapping and possibly conflicting grids of knowledge� such a theory of affective experience is central for a critical understanding of the very subtle ideological processes and practices operative in legal education…�” jerry leonard, the eleventh plateau: the lost object (ive) of legal education, 4 law and critique 81, 88 (1993)� 98 we often fail to recognize how vulnerable our clinic students are since we may assume that they have “toughened up” after having four years of undergraduate training� but, “[d]uring their time in higher education students move backwards and forwards along a spectrum of vulnerability� the vulnerability they feel as beginning under-graduates may be different from, but just as intense as, the vulnerability they experience when engaged in postgraduate studies�” denise clarie batchelor, vulnerable voices: an examination of the concept of vulnerability in relation to student voice 38 educational philosophy and theory 787, 799 (2006)� continue to volunteer on one of the clinic’s long-term public policy projects� for instance, my public/media child dependency open courts project has been ongoing for more than a decade�99 that project has resulted in the publication of four law review articles,100 an hour-long debate with a live-feed to dozens of california courts,101 numerous mlce presentations,102 several legislative 123 international journal of clinical legal education autumn 2011 99 another long-term pro bono public policy project involves sibling advocacy, especially the establishment of statutes and court opinions that recognize the importance of the sibling bond� this project has resulted in the publication of: william wesley patton and sara latz, severing hansel from gretel: an analysis of siblings’ association rights, 48 univ� miami l� rev� 745 (1994); patton, the status of siblings’ rights: a view into the new millennium, 51 de paul l� rev� 201 (2001); patton, the interrelationship between sibling custody and visitation and conflicts of interest in the representation of multiple siblings in dependency proceedings, 3 children’s legal rights journal 18 (2003); patton and amy pellman, the reality of concurrent planning: juggling multiple family plans expeditiously without sufficient resources, 9 u�c� davis j� of juv� l� & policy 171 (2005); patton, the whittier law school legal policy clinic’s amicus curiae advocacy on behalf of siblings, 5 journal of child and family advocacy 449 (2006); patton, chapter 5: the rights of siblings in foster care and adoption: a legal perspective, in siblings in adoption and foster care: traumatic separations and honored connections (praeger, 2009)� the sibling project has also generated numerous mcle training sessions: conflicts of interest in representing minor clients, (aals workshop on clinical legal education, dallas, texas may 3–6, 1997); also a small group leader; new issues and pending legislation in dependency law (october 22, 1998 at the fourth annual dependency law conference); siblings’ association rights in the new millennium (national association of counsel for children conference, portland, oregon october 9, 1999); establishing permanency through adoptions: sibling relationships (october 5, 2001, 7th annual a new beginning conference, los angeles convention center); balancing relationships and permanency through adoption (october 2, 2001, national association of counsel for children conference, san diego/coronado, california); keynote speech: the constitution, statutes, and legislative policies regarding siblings’ rights, (february 9, 2002, portland oregon state bar conference); paper: conflicts of interests in representing sibling groups in dependency proceedings (dependency court legal services, sept� 25, 2002); post-adoption sibling rights (whittier law school children’s rights symposium: special needs children and adoption, march 22, 2003); conflicts of interest in representing multiple sibling groups (u�c� davis medical school 2003); the adoption and safe family act, concurrent planning, and sibling association (center for adoption law & policy, capital university law school, columbus, ohio, october 20, 2003); where have all the siblings gone, how did they get there, and why?, california judicial council’s juvenile court centennial conference, december 5, 2003); and, successive versus concurrent conflicts of interest and the duty of loyalty (wls alumni luncheon lecture, july 22, 2008)� finally, the sibling project has resulted in a number of legislative analyses, appellate briefs and oral arguments on sibling issues: oral arguments and amicus curiae briefs in the california supreme court in in re zeth s� (calif� supreme court #s099557) and in in re celine r� (calif� supreme court #s111138) [legal representation of siblings] (may 2003); legislative analysis of proposed judicial council rule 1438�5 regarding conflicts of interest in representing multiple children (2005); amicus curiae brief filed in the california supreme court in in re charlisse c�, supreme court no� s152822 (august 2007) [conflicts of interest in the successive representation of abused children]� 100 william wesley patton, pandora’s box: opening child protection cases to the press and public, 27 w�s�l� rev� 181 (2000); an empirical rebuttal to the open juvenile dependency court reform movement, 38 suffolk univ� l� rev� 303 (2005); the connecticut open-court movement: reflection and remonstration, connecticut public interest l� j�, fall 2005; when the empirical base crumbles: the myth that open dependency proceedings do not psychologically damage abused children, 33 univ� of alabama l� & psych� rev� 29 (2009)� 101 should dependency court proceedings be open to the public? inside justice, sponsored by the california judicial council, jan� 2004� 102 an analysis of recent changes in child delinquency and dependency law (presented october 15, 1999, at the l�a� convention center 5th annual a new beginning conference); hot topics in dependency law, practice, procedures, and policies, (january 12, 2002, university of california riverside); the trend of opening dependency proceedings to the press and public (national association of counsel for children annual conference, new orleans, august 14, 2003); confidentiality v� openness in child protection court hearings, the legacy family institute and the every child matters education fund, web cast seminar broadcast on may 12, 2004; the evils of ab 2627: an empirical and policy rebuttal, national association of counsel analyses of different states’ proposed open dependency court bills,103 and my expert testimony in superior court�104 the clinic students benefit from involvement with these long-term legal policy projects in a number of ways: (1) they learn that legal change sometimes take years and that the law, even once decided, continues to change in ways that require further policy advocacy; (2) they learn persistence from the professor’s modeling in which the long-term legal advocacy continues even after setbacks; (3) they have a chance to see the myriad avenues for policy advocacy involved in a single issue, including action in courts, journals, print media, television, conferences, and in congress and state legislatures;105 (4) and once in awhile they have the opportunity to celebrate the success of pro bono policy advocacy� since legal policy students’ involvement in these professordriven long-term pro bono public policy projects is voluntary and does not factor in the students’ clinic grade, this opportunity does not interfere with nor frustrate the clinic’s sandbox pedagogy of student directed learning� and these continuing projects provide students a roadmap toward a life-long pro bono publico path even if they choose to practice in an area outside the public interest field�106 b. the challenges for a legal specialist in teaching a general policy clinic most of us have developed legal specialties that we often rely upon when teaching specific liveclient clinics� what concerns should clinicians have in teaching a course in which they may not have expertise in many of the areas of law in which the students are performing lawyering skills? for instance, since i never enrolled in a law school tax course and have never practiced tax law, i knew very little about the student’s project of writing a legislative analysis of the armed services tax fairness act� however, unlike in the live-client clinic, since the clinic supervisor is not ethically responsible for competent, zealous, loyal, and confidential representation to a particular client, the getting back to the sandbox 124 for children southern california chapter, april 2004; child abuse victims re-victimized by the legal system, univ� of suffolk law school symposium: beyond prosecution: sexual assault victim’s rights in theory and practice (april 16, 2004); debunking sunshine: open child dependency proceedings, university of connecticut, november 17, 2004; pediatric psychiatric implications of open child abuse proceedings, wls faculty colloquia, september 16, 2008; prophylactic protections for child witnesses, widener law school symposium on child witnesses (april 9, 2009)� 103 testimony, by invitation by california senator adam b� schiff, chair of the state senate select committee on juvenile justice, in two senate hearings: (1) “confidentiality in the juvenile court” on may 21, 1999; position paper used by the national association of social workers and several children’s organizations in defeating sb 1391 which would have opened california dependency courts to the press and public; testimony in the california state assembly committee on the judiciary regarding ab 2627 (should child abuse proceedings be open to the press and public?), april 11, 2004; testimony in the california senate judiciary committee in opposition to press access to child abuse cases, june 2004; legislative analysis of proposed arizona house bill 2024 [open dependency courts] (2006); legislative analysis of kentucky hr 421 [open juvenile dependency proceedings] (february 5, 2008); legislative analysis of georgia proposed bill no� hb 616 [modifying confidentiality rules in juvenile court (march 11, 2009); legislative analysis of connecticut proposed bill no� 5320 [presumptively open juvenile dependency proceedings] (february 3, 2009); and, legislative analysis of connecticut proposed amendment lco no� 7314 [juvenile open court pilot project], filed at the request of the connecticut state child advocate office (may 20, 2009)� 104 i testified as an expert witness on the child dependency system and on the pediatric psychiatric effects on child abuse victims who testify in open court, in san mateo county v� superior court (2005)� 105 since this project does not involve the representation of a particular client, some state legislatures permit non-attorneys students to testify before committees� 106 one of the advantages of students having taken the legal policy clinic is that they know the procedures for expressing their views on public policy issues� hopefully, when these students read an article in the local newspaper or legal journal, they will concerns are mainly pedagogical: do i have the competence to provide these students with a high quality learning experience? as long as you are able to “check your ego at the door” in terms of your accustomed role as legal expert, there are a variety of methods for marshalling your general legal and experiential knowledge to compensate for a lack of substantive specific expertise� first, this is an excellent opportunity for modeling competent practice and for teaching or reminding students of their ethical duty of competence� for instance, aba model rules of professional conduct, rule 1�1[2] provides that “[a] lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar…” rule 1�1 further provides that attorney competence can be acquired “through the association of a lawyer of established competence in the field in question” or “by reasonable preparation�”107 even though students are not representing actual clients in their policy clinic advocacy, these same methods are available for your mentoring and for their establishment of sufficient expertise to perform competent policy analysis� for instance, as their mentor, you can work with the students to develop a game plan for their acquiring sufficient expertise for each assignment�108 in addition, some students’ policy projects may require interdisciplinary expertise� however, the client-less policy clinic can avoid many of the most difficult aspects of providing interdisciplinarity to student’s clinic experiences� for instance, the serious legal issues of client confidentiality, conflicts of interests, and conflicting rules of professional responsibility among different credentialed experts rarely arise in client-less advocacy�109 since the policy clinic does not have a substantive focus, the myriad of interdisciplinary issues which may not often reoccur do not warrant the formal and ongoing associations with interdisciplinary experts often required in liveclient clinics�110 thus, the budget, coordination, and student supervision problems associated with 125 international journal of clinical legal education autumn 2011 feel empowered to write a letter to the editor rather than just mumbling to themselves their disagreement with the author’s opinion� and when they read an appellate opinion with which they disagree, hopefully they will use their tools to seek depublication, a review in the california supreme court, or file an amicus curiae petition� 107 aba model rule, rule 1�1[2]and [4]� 108 helping policy clinic students brainstorm the methods for developing sufficient expertise to competently analyze their policy issues provides an opportunity for collaboration between the clinician and student� since the clinical professor also confesses an absence of expertise, a form of bond can be developed as the “team” works on a roadmap for acquiring expertise� the clinician can relate that many advocates, even in order to engage in competent fact investigation when dealing with expert witnesses, must learn a subject sufficiently to determine what is and what is not relevant expert opinion� 109 one of the oldest interdisciplinary relationships is between clinics that represent children and/or families and the social workers� since attorneys’ ethical universe focuses more narrowly than the social worker’s focus of society and the interests to all involved in a dispute, conflicts in confidentiality rules often create risks to clients� “social workers are mandatory reporters of child abuse and neglect� lawyers are not��� the development of interdisciplinary practice has spawned a body of literature that addresses the ethical and practical issues that may arise in collaborations between lawyers and social workers�” jacqueline st� john, building bridges, building walls: collaboration between lawyers and social workers in a domestic violence clinic and issues of client confidentiality, 7 clinical l� rev� 403, 425–426 (2001)� see also, maryann zavez, the ethical and moral considerations presented by lawyer/social worker interdisciplinary collaborations, 5 whittier j� child & fam� advoc� 191, 192–194 (2005); 110 for instance, several of the projects in my legal policy clinic have involved psychiatric expert evidence� the legislative analyses regarding the psychological effects of separating siblings and of forcing child abuse victims to testify before the public and press were heavily laden with psychiatric questions� however, rather than having a staff psychiatrist or a formal teaching arrangement with a psychiatrists at another school, i helped the students on a case by case basis� fortunately, i teach a course, forensic child and adolescent psychiatry, at the ucla david geffen school of interdisciplinary work are much less onerous in the policy clinic�111 depending upon your law school context, a number of resources may be readily available on campus� for instance, you may guide a student who is working on an environmental policy issue to the following sources: (1) a colleague with that specialty in the law school; (2) a professor in another department in the university or college;112 and (3) a list of legal and substantive specialists who might act as a mentor for the project� finally, if you teach at a free-standing law school or one that is located a substantial distance from your main college campus, you might cultivate a group of law school alumni who are willing to provide guidance to your students in their areas of legal expertise�113 getting back to the sandbox 126 medicine, department of psychiatry, and i was able to have some of my psychiatric fellows participate in the writing of the legislative analyses� in fact, one of the ucla psychiatrist’s statements regarding the harm to child witnesses testifying in public actually was quoted in the california legislative analyst’s legislative report� for discussions of collaborations between law schools, lawyers, and psychiatrists, see, eric s� janus, clinical teaching at william mitchell college of law: values, pedagogy, and perspective, 39 wm� mitchell l� rev� 73, 79 (2003); susan r� schmeiser, the ungovernable citizen: psychopathy, sexuality, and the rise of medicolegal reasoning, 20 yale j� l� & human� 163, 166 (2008); jennifer l� wright, therapeutic jurisprudence in an interprofessional practice at the university of st� thomas interprofessional center for counseling and legal services, 17 st� thomas l� rev� 501 (2005); donald n� duquette, developing a child advocacy law clinic: a law school clinical legal education opportunity, 31 u� mich� j� l� reform 1, 7 (1997); joan s� meier, notes from the underground: integrating psychological and legal perspectives on domestic violence in theory and practice, 21 hofstra l� rev� 1295, 1297 (1993); w� warren h� binford, restructuring a clinic, 15 clinical l� rev� 283, 311 (2009)� 111 mary nyman ballard, interdisciplinary law and psychology training at indiana university, 47 fam� ct� rev� 485, 485–486 (2009); paul r� tremblay, professional ethics in interdisciplinary collaboratives: zeal, paternalism and mandated reporting, 13 clinical l� rev� 659, 666, 700–701 (2007); melissa breger, suellyn scarnecchia, framk vandervoret, and naoimi woloshin, building pediatric law careers: the university of michigan law school experience, 34 fam� l� q� 531 (2000); christina a� zawisza, two heads are better than one: the caser-based rationale for dual disciplinary teaching in child advocacy clinics, 7 fla� coastal l� rev� 631 (2006); katherine r� kruse, lawyers should be lawyers, but what does that mean?: a response to aiken & wizner and smith, 14 wash� u� l� j� & pol’y 49, 63, 65, 73 (2004); ann moynihan, mary ann forgey, and debra harris, foreword: fordham interdisciplinary conference achieving justice: parents and the child, 70 fordham l� rev� 287, 329 (2001)� 112 some have noted that interdisciplinary programs are much easier to implement at large universities than they are at smaller colleges� ballard, supra�, note 97, at 490; sara r� benson, beyond protective orders: interdisciplinary domestic violence clinics facilitate social change, 14 cardozo j� l� & gender 1, 5 (2007)� inter-university interdisciplinary collaborations are problematic because of distances between campuses, conflicting academic schedules, and insufficiently flexible professor schedules and “different educational styles and goals between the two professional schools�” ronald w� filante, developing a law/business collaboration through pace’s securities arbitration clinic, 11 fordham j� corp� & fin� 57, 80-81 (2005)� for a discussion of the many different models of law school interdisciplinary programs, see karen tokarz, nancy l� cook, susan brooks, and brenda btratton blom, conversations on ‘community lawyering’: the newest (oldest) wave in clinical legal education, 28 wash� u� j� l� & pol’y 359, 382-385 (2008); melissa breger and theresa hughes, advancing the future of family violence law pedagogy: the founding of a law school clinic, 41 u� mich� j� l� reform 167, 182–184 (2007); 113 involving law school alumni in the students’ lawyering skills projects has the collateral benefit of improving alumni relations, and your director of alumni relations may be more than willing to provide you with a list of alumni by area of specialization� conclusion although there is currently a serious debate regarding the effects of learning style pedagogy on student performance,114 there is consensus among cognitive researchers that motivationally nuanced pedagogy affects students’ performance, persistence, and longitudinal behavior� however, more empirical data is needed regarding the possible connection between self-directed learning in law school and students’ life-long pro bono behavior� the clarion call from the american bar association,115 the carnegie foundation,116 and from the clinical legal education association117 for improvements in the practical training of law students has currently morphed into a debate regarding law student assessments and law education outcome measures�118 the most recent aba standards review committee draft on outcome 127 international journal of clinical legal education autumn 2011 114 for instance, a recent article has concluded that “extant data do not provide support for the learning-styles hypothesis…�” harold pashler, mark mcdaniel, doug rohrer, and robert bjork, learning styles: concepts and evidence, 9 psychological science in the public interest 105, 116 (2009)� pashler, et� al�, studied all current learning style literature and determined that there is insufficient empirical evidence to support the “meshing hypothesis” of learning style data that supports the concept that “instruction should be provided in the mode that matches the learner’s style�” id�, at 108; see also, david glenn, matching teaching style to learning style may not help students, the chronicle of higher education, dec� 15, 2009 (http://chronicle�com/ article/matching-teaching-style-to/49497/?sid=a)� for a 50-page bibliography of learning style studies, see, http://www�learningstyles� net/ i n d e x � p h p ? o p t i o n = c o m _ d o c m a n & t a s k = c a t _ view&gid=34&itemid=73&lang=en� for studies on the application of learning styles to law teaching, see, e�g�, r� a� boyle, applying learning-styles theory in the workplace: how to maximize learingstyles strengths to improve work performance in law practice, 79 st� john’s univ� l� rev� 97 (2005); r� a� boyle, teaching law students through individual learning styles, 62 albany l� rev� 213 (1998); k� russo, effects of traditional versus learningstyle instructional strategies on the legal research and writing achievement of first-year law school students (dissertation abstracts international, 63 (07), 2478a)� 115 in 1992 the aba published american bar association, section on legal education and admissions to the bar, legal education and professional development – an educational continuum, report of the task force on law schools and the profession: narrowing the gap 3 (1992) [known popularly as the maccrate report] which outlined law schools’ failure to provide sufficient skills training for law students� 116 in 2007 the “carnegie report” was published� see william m� sullivan, anne colby, judith welch wegner, lloyd bond and lee s� shulman, educating lawyers: preparation for the profession of law (2007)� 117 roy stuckey, et� al�, best practices for legal education: a vision and a roadmap (2007)� for an interesting discussion of law student assessment methods, see, jerry r� foxhoven, beyond grading: assessing student readiness to practice law, 16 clinical l� rev� 335 (2010)� 118 the aba’s movement to assessment and outcome measures as part of the accreditation process havsbeen rapidly progressing� in 2008 the aba outcome measures committee concluded that “legal education has lagged behind these other fields in using outcome measures, [and] we should now actively consult the literature in those other fields to learn from them and thereby to replicate their successes and, if possible, avoid whatever pitfalls they encountered�” catherine l� carpenter, et� al�, american bar association section of legal education and admissions to the bar, report of the outcome measures committee 64 (july 27, 2008)� a month later, at its august 2008 meeting, the aba standards review committee began considering the question of “student outcome measures���” donald j� poldon, chair’s notes, march 6, 2009, at 2 (http://www�abanet� org/legaled/committees/comstandards�html)� the aba standards review committee has already released three different drafts of proposed aba accreditation learning outcomes standards� student learning outcomes draft for october 9–10, 2009 meeting; student learning outcomes draft for january 8–9, 2010 meeting; and student learning outcomes subcommittee april 17, 2010 draft ( h t t p : / / w w w � a b a n e t � o r g / l e g a l e d / c o m m i t t e e s / comstandards�html)� 128 119 student learning outcomes subcommittee april 17, 2010 draft, at 4 (supra�, note 110)� getting back to the sandbox measures requires “that law schools use both formative and summative assessment tools during the course of their students’ education�”119 therefore, in response to the new outcome measure trend, the next phase of the research on the whittier law school legal policy clinic will be a longitudinal study of whittier law school graduates to determine whether there is a significant difference in the career involvement in pro bono activities between those clinical students who were able to choose their pro bono cases and define for themselves the meaning of social justice and those who were not provided that opportunity� 423423 foreword welcome to issue 20 of the journal – such a large issue that it is in two volumes� in volume i are the refereed articles and in volume ii can be found the clinical practice papers� this is the final paper edition of the journal and my final edition as editor� after this edition, we are taking the journal online, freely accessible to all� i conclude this foreword with further information about the new online journal� eleventh international journal of clinical legal education conference and twelfth australian clinical legal education conference: common ground sharing across models of experiential legal education brisbane, australia tuesday 16 to thursday 18 july 2013 our eleventh conference was very kindly hosted by griffith university� my particular thanks to professor jeff giddings and his colleague zoe rathus for organising such a vibrant, well organised and fun conference� a significant number of papers focused on pedagogy but there were also many papers presented on themes of social justice and streetlaw� further details of the proceedings can be found at http:// commongroundconference�info/ twelfth international journal of clinical legal education conference, in association with the european network for clinical legal education (encle), palacky university, olomouc, 15-17th july 2014 we are hosting this conference jointly with encle for their second conference� the theme of the conference is clinic without borders� as the clinical legal education movement continues to push pedagogical, geographical, jurisdictional and discipline boundaries this conference will provide an opportunity for us to explore these new frontiers� for those interested in attending the conference, details can be found here: www�ijcle�com in this issue one of the factors leading me to this year’s conference theme was the thread running through the vast majority of papers in this edition as clinical legal education continues to push boundaries in many and diverse ways� this edition contains several interesting papers on the birth and growth of clinic in new jurisdictions� in “an examination of the challenges, successes and setbacks for clinical legal education in eastern europe,” professors askamovic and genty consider the history of clinical legal education in eastern europe and ask searching questions about why it has flourished in some countries and not others� in volume ii, a series of articles by nigerian academics consider the achievements, challenges and growth of clinic in that country� two articles (“the relationship between social justice and clinical legal education: a case study of the women’s law clinic, faculty of law, univeresity of ibadan, nigeria” and “clinical legal education and cultural relativism – the realities in the 21st century”) consider the work of the women’s law clinic at the university of ibadan� both contain interesting insights into the work of the clinic and the 424 international journal of clinical legal education issue 20 culture of the local community when undertaking outreach work� further articles from nigeria consider the prison system there: “decongesting prisons in nigeria: the ebsu law clinic model,” and an overview of developments in nigeria more generally: “meeting the required reforms in legal education in nigeria: clinical legal education – ten years after�” volume i of this edition also sees expansion of clinics in another direction: multidisciplinary clinics� in “the value of incidental learning in a multidisciplinary setting,” ross hyams and denise sadique investigate multidisciplinary work between social work, law and business students and the informal learning opportunities arising in that environment� there are clearly wonderful opportunities for both students and their supervisors to learn from other disciplines and approaches� one of the key insights is the influence that this exposure can have on law students’ developing sense of professional identity as lawyers� it seems to me that multidisciplinary clinics represent a further maturing of clinical legal education as we explore the opportunities that this offers to truly understand for ourselves and our students the role of the lawyer in society� also in volume i, “clinical collaborations: going global to advance social entrepreneurship,” deborah burand et al discuss a partnership which pushes yet more boundaries� the paper explores their cross-university collaboration with ashoka (a global non profit organisation) to deliver transactional clinical legal services globally to advance social entrepreneurship� again it is clear that this is a further sophistication of clinical work; building on existing international transactional work to partner with other universities and a global non profit partner to better serve client needs, learn from each other and inspire students and academics to study and contribute to social entrepreneurship� i hope i have convinced the reader that many of the papers in this edition are a part of this broader theme of crossing borders� i will not attempt to stretch this for the remaining papers in this edition, which provide different insights� in volume ii, “assessing law clinic – the use of digital patch text assessment as an alternative to traditional portfolios,” evaluates the use of digital media in the use of patch text assessment and its application within a law clinic module� patch text assessment appears to offer several key advantages over traditional portfolio assessment� michael appleby and judy bourke present important work regarding the well being of future lawyers� in volume i of this edition they look at: “promoting law student mental health literacy and wellbeing: a case study from the college of law, australia�” this study gives a valuable insight into work at the college to address important concerns about the mental wellbeing and mental health literacy of law students and, therefore also subsequently, lawyers� of all their recommendations, it seems to me that as legal educators we should take most seriously the call to consider making mental health literacy training and wellbeing training part of the core curriculum� in a not wholly unrelated article, in volume ii, the authors consider: “a client-focused practice: developing and testing emotional competency in clinical legal interviews�” the authors describe initial research into training in emotional competencies for client interviews and whether or not students who have undertaken that training perform better in the initial legal interviewing process� this paper provides an interesting prelude to the publication of fuller results from the research� finally, in volume i, my colleague here at northumbria, elaine campbell, considers: “regulating clinic: do uk clinics need to become alternative business structures under the legal services 424 425 act 2007?” this provides an important commentary for uk (particularly in england and wales) clinicians, and policy makers, on the potential unintended consequences of the significant changes to the structure of law businesses� elaine considers developments towards alternative business structures in australia and the new legislation in england and wales� the potential outcome of the new regulatory regime could be that the ability of law clinics to offer a full legal service to clients could be severely curtailed� clearly this is of importance to those of us in this country� i think the article is important for our international colleagues because it is an indication of possible future direction in other jurisdictions as the boundaries between law firms and other businesses continue to blur in an increasingly competitive, global and multidisciplinary environment� the future of this journal as indicated in the opening paragraphs, we are taking the journal online and dr elaine hall becomes the managing editor� moving the journal online will lead to an increased profile and readership for the journal, lending more impact both for individual papers and for the cle work more broadly� it will also allow us to have a more streamlined and transparent review process and easy access to our archive� finally the move online gives us the opportunity to change the format of the journal, certainly by using multi-media content and to move to publishing more frequently with themed issues� in the new format, each volume will consist of three issues, delineated by strand� • clinic, the university and society: this strand addresses the role of clinic as an instrument for civic engagement, access to justice and societal change� reviewed articles in this strand will engage with the theory of clinic, relating to purpose, ideals and conceptualising the value that clinic offers to students, staff, the institution and wider society� these papers will explore the complex relationships between clinical education and social justice agendas, between university vision statements, student expectations and the demands of the legal profession� practice reports in this strand will deal with procedures and governance for clinic development, partnership working within universities and beyond, including statutory and voluntary sectors and practical aspects of managing clinical work including attendant issues such as data management� papers co-authored with partners and stakeholders are particularly welcomed� • teaching and learning in clinic: this strand investigates the curriculum, pedagogy and assessment used to prepare students for and support students during their clinical experience� reviewed articles in this strand will contribute to the wider pedagogic literature, contextualising on-going debates in education within the particular disciplinary and local contexts� they may contain detailed empirical explorations of the impact of particular learning environments, opportunities or processes� from a policy perspective, some papers may explore the tensions between legal education and preparation for practice as a lawyer� practice reports in this strand will report innovative work, giving clear guidance for other practitioners who may wish to replicate their approach� reports in this strand will typically include learner perspectives and we encourage co-authored papers with students� 426 international journal of clinical legal education issue 20 • research and impact: this strand will focus on the evidence base for clinical education and will explore the weight of evidence and the knowledge claims� the issues will develop our sense of how secure our conception of the impact of clinic is by giving the rigorous presentation of a range of empirical data a strong critical and epistemological frame� papers in this strand may therefore have a topic focus from another strand but the balance of the paper will be weighted towards an exploration of the research methods used (in a report of a particular empirical study) or of the balance of approaches to research in cle (in a review of existing studies)� reviewed articles in this strand will engage critically with the tools and methodologies used to investigate clinic and provide evidence about the unique opportunities and limitations afforded by these choices of research design� practice reports in this strand will focus on single methods within on-going investigations of cle, for example a review of the validity of a questionnaire used to tap into student experiences each issue of the journal will contain • an editorial by the strand or managing editor • three or four reviewed articles of up to 8,000 words each� these articles will be blind peerreviewed by an editorial board member and an external reviewer� feedback from these reviews will be given to the author by the strand editor� authors wishing to submit papers as reviewed articles will need to remove all identifying details from the paper before submission� • two or three practice reports of up to 6,000 words each� these reports will be internally reviewed by the editorial board� authors submitting papers as practice reports do not have to anonymise their work, though they can do so� • a ‘from the field’ report of 2,000 words giving news of practice and innovation from a particular geographical or jurisdictional context� • reviews of book, articles, events and multimedia resources of between 200-800 words� authors preparing papers for the journal during the transition period are invited to contact elaine hall (elaine�hall@northumbria�ac�uk) if they would like to discuss where to place their contribution� although i am no longer editor of the journal i will continue to contribute to it and to the organisation of our annual conference, as well as continuing to work in northumbria’s student law office� i look forward to continuing to meet with all of our colleagues and share experience and best practice as clinical legal education continues to grow across the globe� jonny hall editor ensuring basic quality in clinical courses 47 ensuring basic quality in clinical courses roy t. stuckey* learning the law is easy. the difficult part of entering the legal profession is learning to be a lawyer. this is because the primary function of most lawyers is to help clients resolve their legal problems, and these problems do not come in neat, tidy packages like cases and statutes in law books. nor do lawyers have law professors by their sides to help discover the right answers; they must figure out solutions on their own. lawyers need an in-depth understanding of law and legal institutions, but they must also have specialized skills that enable them to apply that knowledge to the resolution of their clients’ problems. as members of the legal profession, lawyers are expected to have a clear understanding of and a commitment to the values of the legal profession and the standards of practice that guide lawyers’ behavior. these values and standards are only partially expressed in the formal rules of legal ethics. the rest must be learned by word of mouth or by observing and participating in law practice. personal characteristics such as integrity and good work habits, as well as professional virtues including loyalty to clients and zealous advocacy, are also indispensable traits of competent lawyers. learning to be a lawyer is a life long activity that begins in law school. clinical education courses1 offer law students their first opportunities to discover firsthand how difficult it is to be a professional lawyer. students can test and hone their knowledge and skills in clinical courses, but clinical education is especially valuable as a way for law schools to teach students the differences between professional and unprofessional behavior and to inspire them to become committed to the highest standards of practice. students in clinical courses must move beyond theoretical discussions and apply their ideals about ethical standards in law practice settings. they learn about the standards of practice from other lawyers, who may or may not be members of a law faculty, and they observe the degree to which these standards are followed. one of the most valuable things about clinical education is that, unlike law practice, clinical courses allow students to discuss what they are learning and experiencing with other students and faculty, and often with practicing lawyers and judges. * alumni professional skills professor of law and director of the nelson mullins riley & scarborough center on professionalism, university of south carolina school of law, usa 1 some clinical courses are entirely simulated. students are restricted to working on hypothetical problems. other courses involve some simulated work and some exposure to actual law practice. when actual law practice is contemplated, this exposure might be provided through an externship course or through an inhouse clinic. externships share some characteristics with in-house clinics, particularly the experience of practice. externships, however, have two characteristics that distinguish them. first, the students’ direct mentors/supervisors are not members of a law faculty but, instead, are practicing lawyers and judges. second, students do not usually undertake primary responsibility for the representation of clients. 48 journal of clinical legal education november 2000 this article describes some of the features of clinical course design that are essential for ensuring basic educational quality. it does not attempt to be thorough. a number of years ago, i served on a committee that began discussing whether it is possible to come up with “indicia of quality” that could be used to measure the quality of a clinical program or course. the question that framed the issue was “if someone wanted to determine whether one school’s professional skills program is likely to be better than another school’s program, what elements should be examined?” the committee not only guessed that it was possible to define those elements, we also believed that it could be accomplished without a great deal of trouble. though i still think it is possible to define indicia of quality, we were wrong that it would be easy. our initial effort foundered fairly quickly. from time to time others renewed the effort, only to abandon the project, with one exception. sandy ogilvy, a law professor at catholic university school of law in washington, d.c., is making the most serious effort to date to describe “indicia of quality” for clinical programs. the last time that i saw a draft of professor ogilvy’s product was in september 1999. the document was titled draft guidelines/standards for the evaluation of clinical legal education programs. it was thirty-three single-spaced pages long, filled with one sentence statements of potential guidelines/standards related to educational quality and dealing with every imaginable aspect of clinical courses. it is a wonderful, thoughtfully-prepared document, and i look forward to seeing the next draft, although i think he has put the project aside for a while. i expect that it will eventually become an important document that clinical programs will use for self-evaluation purposes. this article takes a very different approach than professor ogilvy’s project. it describes only the most basic components for ensuring the educational quality of clinical courses. the insights in this article are neither profound nor novel, but they underscore the central elements of clinical education. the article may be useful to law schools that are thinking of establishing clinical courses, and it may help the rest of us remain focused on the fundamental reasons for law schools to offer clinical courses. clinical courses can take many forms and still accomplish important educational functions if they are thoughtfully designed. various factors will affect how a clinical course is structured, most notably the preferences of the faculty and the resources of the school. designing a clinical course provides opportunities for creative and new approaches, and very few clinical courses look exactly alike. law schools, however, should approach clinical course design with care if they want to ensure that clinical students have the most effective educational experiences possible in relation to available resources. it is a fair question to ask at this point why any structure is needed. arguably, students will benefit from any chance they have to experience the real worlds of lawyers and judges, either as participants or observers. after all, it is often said that experience is the best teacher. it is probably impossible not to learn from experience, and it is equally likely that simply exposing students to the realities of law practice will benefit most of them in some way. the real issue is not whether students can learn from unstructured clinical experiences. of course they can. rather, the key question is whether academic credit should be awarded to students who participate in clinical courses. the answer is that academic credit should be awarded only if a law school is prepared to establish clear educational objectives and to structure clinical courses in a way ensuring basic quality in clinical courses 49 that will facilitate the achievement of those objectives.2 experience acquired in a well-designed clinical course is the best teacher. the importance of a law school establishing educational goals for clinical courses cannot be overemphasized, but it is equally important that clinical courses retain the flexibility to take advantage of unanticipated learning opportunities that arise during clinical courses. when students are exposed to the real world, they encounter things that neither they nor the faculty expects. these encounters often engage students’ attention very significantly, and the structure of a clinical course should help students take advantage of opportunities to learn from unexpected and unplanned events. some students, either on their own or with encouragement from the law school, establish their own personal learning objectives upon enrolling in clinical courses. i view student-selected goals as supplemental to the educational objectives established by a law school, not as replacements for them. it is possible to conceive of a clinical course in which the only educational objectives are those that are set by the students. in this case, the clinical course would operate like a collection of independent study opportunities for students. there is no reason to prohibit students from pursuing personal educational objectives in clinical courses, and some good reasons exist to support them, so long as the law school ensures that the educational goals selected by the students are appropriate and that a reasonable plan and sufficient resources exist for accomplishing the student-selected goals as well as those established by the school. i recognize that in some parts of the world, including some law schools in the united states, the primary motive for establishing clinical programs is to provide desperately needed legal services to people who cannot afford lawyers. the education of law students is a secondary consideration, although some valuable learning clearly occurs even in the most unstructured program. providing free legal services to poor people is a worthy thing for everyone in the legal profession to support; however, i am personally critical of those who find it acceptable to put the burden of providing legal services to the poor on law students rather than on practicing lawyers. even where service, not education, is the primary purpose of a clinical course, the essential components of structure that are outlined in this article should be employed. if for no other reason, the existence of these components will reduce the risk that clients will be harmed by the efforts of students, many of whom after all cannot be expected to render fully competent legal services because of their inexperience. educational goals the educational goals of a clinical course should be determined by the mission of the law school, the interests of the faculty, and the needs of the students. virtually any educational goal can be accomplished in a clinical course. clinical education is a methodology, not a substantive topic of study. clinical methods, however, are more suitable for accomplishing some specific educational goals than others. many scholars have described the wide range of specific topics that are most 2 for a more thoughtful and thorough discussion of the importance of setting clear educational goals in clinical courses, see peter t. hoffman, clinical scholarship and skills training, 1 clinical l. rev. 93 (1994). professor hoffman criticized law school clinics in the united states for not setting clear educational objectives. in part because of professor hoffman’s article, many clinical programs in the united states and around the world have established much clearer objectives. 50 journal of clinical legal education november 2000 appropriately taught and learned in clinical courses.3 the following list describes what i believe are the five most important educational objectives that can be accomplished in clinical courses: 1. developing problem-solving skills. a fundamental purpose of legal education is to teach students how legal problems are resolved through legal processes and to teach them what lawyers, judges, and other legal professionals actually do to help resolve them. clinical courses can effectively help law schools achieve this central goal. students in clinical courses, especially those involving actual law practice, experience the multitudes of factors that affect decisionmaking, and they begin to understand the relationships of the factors and how they can help or hinder problem-solving. they begin to see how the pieces fit together, and they begin developing legal problem-solving skills. 2. becoming more reflective about legal culture and lawyering roles. students in clinical programs develop a better sense of their strengths and weaknesses as lawyers. they also become more aware of the social experience, institutions, and interactions that comprise the legal culture. students’ clinical experiences form the basis for insights into the functioning of the legal system and raise questions about the legal system’s capacities and limitations. clinical students also learn how the law in action actually operates and what lawyers can accomplish in the world and what they cannot. 3. learning how to behave as well as how to think like a lawyer. clinical courses give students opportunities to perform in professional roles or to observe lawyers practicing litigation skills or pretrial lawyering skills such as interviewing, counseling, negotiating, and drafting. students in clinical courses are confronted with professional responsibility issues that must be resolved, not just discussed. thus, clinical courses increase students’ sensitivity and awareness about ethical and moral dilemmas that lawyers regularly face and resolve, and they begin developing personal systems of professional values and responsibility. clinical courses expose students to the demands, constraints, and methods of analyzing and dealing with unstructured situations in which the issues have not been identified in advance. they learn how to transform the analytical aspects of lawyers’ work into predictive decisionmaking capabilities for counseling clients and resolving clients’ problems in a manner that is consistent with the relationship, role, and responsibility of the lawyer to society, clients, and the legal process. clinical students begin to understand the difference between professional and unprofessional behavior. they learn the importance of the following characteristics of professionalism, to name only a few: client-centered practice; civility and fair play; doing good and doing well; honesty, diligence, perseverance, creativity, hard-work, adaptability, responsibility, toughness, timeliness, character, good judgment, and honor. 3 see william p. quigley, introduction to clinical teaching for the new clinical law professor: a view from the first floor, 28 akron l. rev. 463 (1995); report of the committee on the future of the in-house clinic, 42 j. legal educ. 508 (1992); carrie menkel-meadow, two contradictory criticisms of clinical education: dilemmas and directions in lawyering education, 4 antioch l.j. 287 (1986); frank s. bloch, the andragogical basis of clinical legal education, 35 vand. l. rev. 321 (1982); committee on guidelines for clinical legal education, aals-aba, clinical legal education (1980); e. gordon gee & donald w. jackson, bridging the gap: legal education and lawyer competency, 1977 byu l. rev. 695. ensuring basic quality in clinical courses 51 4. understanding the meaning of justice and the responsibility of all lawyers to strive to do justice. clinical students learn more about justice in their society from their clinical experiences than any book could teach them. they gain insights into what justice is, why it is important, what systems exist for adjudicating disputes, and the roles and limitations of lawyers and judges in securing justice. they learn to appreciate the importance of the rule of law for ensuring justice in a society. in 1990, professor david barnhizer called on law schools to conceive of clinical programs as symbols and models of justice in action: “law faculties have the obligation to insist that students pursue the concerns of justice and their professional responsibility because justice is not simply an intriguing intellectual issue, but is a fundamental part of stability of any society. force can substitute for justice to some extent in dictatorial or autocratic societies, but in democratic societies it is not the sterility of law or the reality of brute individual power, but the viability of justice that determines these societies’ ultimate quality and fairness. failing to confront people and institutions who are responsible for injustice shirks the central responsibility of the modern intellectual, that of “speaking truth to power.” unwillingness to develop such fundamental issues with law students, both in traditional courses and in clinical courses, undermines . . . society’s ability to deal with difficult questions.”4 if a law school wants to teach students about justice, clinical courses can play a major role by focusing on the processes, values, and actions involved in “doing justice.” 5. discovering the human effects of the law. clinical courses allow students to begin examining the interaction of legal analysis and human behavior, including interpersonal dynamics and communication. they learn how the law affects people’s lives by bringing hope or fear, sadness or joy, pain or relief, frustration or satisfaction. they learn that the actual results of legal processes are often not the same as predicted by an objective analysis of the facts and law because of the biases and perceptions as well as the relative skills and knowledge of lawyers, judges, clients, and witnesses. many clinical students observe the realities of poverty through clinical programs. they learn to serve the unmet legal needs of the poor, and they develop an appreciation of the importance and benefits of providing pro bono representation to those who would not otherwise have access to the legal system. the remainder of this article discusses how clinical courses can be structured to achieve these basic educational objectives consistently. structuring clinical courses to achieve basic objectives the structure of a clinical course is shaped by the specific educational goals of the course. like any other course, the objective in designing a clinical course is to provide students with an organized and focused, not a haphazard, learning experience. it is beyond the scope of this article to discuss how a specific clinical course should be structured. there are simply too many potential educational goals to consider and too many potential ways to deliver instruction about them. 4 david barnhizer, the university ideal and clinical legal education, 35 nyls l. rev. 87, 112-113 (1990). 52 journal of clinical legal education november 2000 two components must be in place, however, to accomplish consistently the educational goals of clinical education that were described earlier. these are effective instruction in problem-solving and guidance by qualified mentors and faculty. effective instruction in problem-solving requires first and foremost that students be given opportunities to engage in problem-solving in context. problem-solving skills are developed by actually working through the process of resolving problems. repetition and learning in context are essential ingredients for becoming an expert problem-solver. law students begin law school with innate problem-solving skills that were acquired throughout their lives. legal problems, however, present new challenges that require law students to acquire and apply different forms of analytical skills than nonclinical law school courses teach.5 novice problem-solvers approach problemsolving differently than experienced problem-solvers, and students can only become expert problem-solvers through repeated efforts to resolve law-related problems.6 no single course during law school can turn a novice problem-solver into an expert problemsolver. it is unlikely that many students will graduate from law school as expert, or even competent, problem-solvers. they simply do not have enough time to refine their skills during law school. however, they can graduate with some experience in legal problem-solving and become closer to the goal of mastering the skill. it is important, though, that students begin honing their legal problem-solving skills during law school, and that they at least become familiar with the four phases of problem-solving: (1) determining exactly what the problem is that needs to be solved and identifying alternative solutions that might resolve the problem and the potential consequences of each (diagnostic or analytical phase); (2) deciding which alternative solution, or prioritized series of solutions, to apply to the problem and how to do so (prescriptive or planning phase); (3) executing the plan (treatment or action phase); and (4) reflecting on the process and results and determining whether additional work is needed (follow-up or reflective phase).7 5 tony amsterdam points out that legal education traditionally taught six or seven kinds of analytic reasoning to the exclusion of fifteen or twenty others. he describes three that were traditionally taught (case reading and interpretation, doctrinal analysis and application, logical conceptualization and criticism) and three that were not traditionally taught before clinical courses were introduced into the law school curriculum (ends-means thinking, hypothesis formulation and testing in information acquisition, decision making in situations where options involve differing and often uncertain degrees of risks and promises of different sorts). anthony g. amsterdam, clinical legal education a 21st century perspective, 34 j. legal educ. 612, 613-614 (1984). 6 for an extensive discussion from a behavioral science perspective of the problem-solving process and how novice problem-solvers become expert problem-solvers, see gary l. blasi, what lawyers know: lawyering expertise, cognitive science, and the functions of theory, 45 j. legal educ. 313 (1995). 7 this particular description of the problem-solving process is the author’s own formulation. stephen nathanson’s adaptation of generic problem-solving theory to legal problems produced a five step description of the problem-solving process: problem and goal identification, fact investigation, legal issue identification and assessment, advice and decision making, planning and implementation. stephen nathanson, the role of problem solving in legal education, 39 j. legal educ. 167, 172 (1989). the maccrate report uses a slightly different description of the problem-solving process: identifying and diagnosing the problem, generating alternative solutions and strategies, developing a plan of action, implementing the plan, and keeping the planning process open to new ideas. task force on law schools and the profession: narrowing the gap, aba, legal education and professional development: an educational continuum (maccrate report) (1992) at 138, 141-148. neither nathanson nor the maccrate report includes reflective evaluation in their descriptions of the process, but cognitive scientists stress its importance for developing problem-solving expertise. blasi, supra note 6, at 360. ensuring basic quality in clinical courses 53 the second essential component of every clinical course is the participation of qualified teachers or mentors who guide the students’ work. for example, instruction in problem-solving skills cannot be effective, unless one or more qualified people are responsible for (1) selecting and assigning the problems that students will be asked to solve, (2) ensuring that students have sufficient knowledge and skills to solve the types of problems being assigned, (3) helping students figure out during the problem-solving process how to resolve aspects of the problems that are beyond their abilities, and (4) facilitating reflective thought by students about the process and results. these tasks might be accomplished by a single teacher or by a team of teachers, including law school faculty and practicing lawyers and judges. while the degree of direct involvement may vary, the ultimate responsibility for the achievement of the educational goals should always remain with the full-time faculty. in all aspects of a clinical course, students need access to people who can help them learn what it means to become a member of the legal profession. thus, the lawyers, judges, and faculty who work with clinical students must understand and adhere to the values of the legal profession and the standards of practice that guide the behavior of lawyers. it is critically important that the people who are responsible for directing students in clinical courses model personal characteristics such as integrity and good work habits. they should also be able to explain the importance of professional virtues such as loyalty to clients and zealous advocacy and how these and other professional virtues affect the decisions of lawyers who are trying to resolve problems that are similar to those the students are encountering. if a law school wants its students to become committed to doing justice, or to pro bono representation and public service activities, the law school must ensure that the people who guide clinical students’ activities share those commitments. conclusion law schools throughout the world are increasingly recognizing the importance of providing more well-rounded programs of instruction to improve the readiness of law students to enter the legal profession. given the limited amount of time that students attend law school, law schools must make difficult choices about the allocation of resources and the types of educational opportunities that will be provided to students. clinical legal education is an effective, efficient method for delivering instruction that complements the traditional curriculum and eases students’ transition into law practice. the basic educational quality of clinical courses will be ensured if law schools establish appropriate educational goals, give students opportunities to engage in problem-solving in context, and involve lawyers, judges, and faculty who are qualified to help students learn what it means to be a professional lawyer. 499 clinical collaborations: going global to advance social entrepreneurship authors: deborah burand clinical assistant professor director, international transactions clinic university of michigan law school dburand@umich�edu susan r. jones professor of clinical law director, small business & community economic development clinic george washington university law school susanjones@law�gwu�edu jonathan ng global legal director ashoka jng@ashoka�org alicia e. plerhoples associate professor of law director, social enterprise and nonprofit law clinic georgetown university law center aep65@law�georgetown�edu 500 international journal of clinical legal education issue 20 short biographies: deborah burand is a clinical assistant professor of law at university of michigan law school� she directs the international transactions clinic that she co-founded at the law school in 2008 and she teaches in the area of impact investment lawyering� professor burand recently returned to the law school after serving as general counsel to the overseas private investment corporation, the development finance institution of the united states� professor burand writes and lectures on issues related to international finance, microfinance and microfranchise, impact investing, social finance innovations such as social impact bonds and crowdfunding for social enterprise, and developing sustainable businesses at the base of the economic pyramid� prior to joining the law school faculty, professor burand worked in nearly equal amounts of time in the private sector (with the law firm, shearman & sterling), in the public sector (with the us federal reserve board and the us treasury department) and in the not-for-profit sector (with conservation international, finca international, and the grameen foundation)� susan r. jones is professor of clinical law and director of the small business and community economic development (sbced) clinic at george washington university law school� before joining the law school faculty in 1988, she was a partner in a civil private law firm� she has held teaching positions at city university of new york law school at queens college, where she taught lawyering skills and clinical simulations from 1985 to 1986 and as the 2004 haywood burns visiting chair in civil rights where she taught courses on community economic development and economic justice; at american university’s washington college of law, where she taught legal writing; and at antioch school of law, where she taught in an immigration law clinic� professor jones is the former senior editor and editor-in-chief of the american bar association’s (aba) journal of affordable housing and community development law� in addition to holding leadership positions in the aba, professor jones is the co-chair of the association of american law schools (aals), clinical section, transactional clinics committee and a member of the executive committee of the transactional law and skills section� she is a past chair of the clinical section� she has written extensively about microenterprise and community economic development� her research interests include the legal aspects of entrepreneurship, social enterprise, economic development, nonprofit organizations, and the creative economy� jonathan ng is the global legal director and in-house counsel at ashoka� mr� ng oversees ashoka’s in-house legal matters for its global headquarters� he manages ashoka’s relationships with its pro bono legal counsel, which includes some of the leading global law firms� he also coordinates with ashoka’s 33 country offices on matters related to corporate structuring, governance and compliance� ashoka believes it is uniquely situated to be a leader in developing the emerging area of law and social entrepreneurship� because social entrepreneurs do not fit neatly into the traditional nonprofit or for-profit categories, they are constantly pushing the boundaries of the laws that apply to them� as such, mr� ng is working with leading law schools and practitioners to help identify and respond to legal issues unique to social entrepreneurs� prior to joining ashoka, mr� ng practiced law at white & case llp in its new york office as a member of the energy, infrastructure, project and asset finance practice group� alicia e. plerhoples  is associate professor of law and the director of the social enterprise & nonprofit law clinic at georgetown university law center� she has been active in the local and national social enterprise movement, often speaking about laws that best facilitate the work of 501 social entrepreneurs� professor plerhoples’ scholarship focuses on social enterprise and corporate governance� her recent article can an old dog learn new tricks?, 13 transactions: tenn� j� bus� l� 221 (2012), examines traditional corporate law principles and how they might be adapted and applied to the flexible purpose corporation, a new corporate form that allows businesses to pursue social and environmental objectives along with profits� her article representing social enterprise, 20 clinical l� rev� 701 (2013), advocates a method of teaching law students about social enterprise, a subject area frequently taught in business schools but often overlooked by law schools� her article delaware public benefit corporations 90 days later: who’s opting in?, which is forthcoming in the spring 2014 edition of the u�c� davis business law journal, presents original research on what entities are opting into the public benefit corporation—a new corporate form permitted in delaware that requires the firm to produce a public benefit and operate in a responsible and sustainable manner� clinical collaborations: going global to advance social entrepreneurship 502 international journal of clinical legal education issue 20 clinical collaborations: going global to advance social entrepreneurship deborah burand, susan r. jones, jonathan ng and alicia e. plerhoples1 abstract: in the summer of 2012, transactional law clinics from three u�s� law schools: george washington university; georgetown university; and the university of michigan launched a collaboration to serve a common client—ashoka, a global nonprofit organization that supports close to 3,000 social entrepreneurs across 76 countries� while clinic collaborations within universities happen occasionally, clinic collaborations across universities are unusual� this essay focuses on the motivations, operations, lessons, and next steps of this cross-university, clinical collaboration aimed at advancing social entrepreneurship globally� specifically, this essay examines why the collaboration was launched, how the collaboration is structured, what the collaboration offers clients and participating law students, how the collaboration has expanded the skills and knowledge of the three clinical directors who are participating in this collaboration, where this collaboration might go next, and finally, what others might learn from this experience when contemplating their own cross-university, clinical collaborations� 1 deborah burand is clinical assistant professor and director of the international transactions clinic at the university of michigan law school� susan r� jones is professor of clinical law and director of the small business & community economic development clinic at george washington university law school� jonathan ng is global legal director and in-house counsel at ashoka� alicia e� plerhoples is associate professor of law and director of the social enterprise & nonprofit law clinic at georgetown university law center� 503 clinical collaborations: going global to advance social entrepreneurship introduction while clinic collaborations within universities happen occasionally, clinic collaborations across universities are unusual� in the summer of 2012, transactional law clinics from three u�s� law schools: george washington university;2 georgetown university;3 and the university of michigan4 launched a collaboration to serve a common client, ashoka,5 a nonprofit organization based in the washington, d�c� metropolitan area of the united states that is recognized as a global leader in the field of social entrepreneurship� ashoka was founded in 1980 by bill drayton who popularized the term, “social entrepreneur�”6 according to drayton, [social entrepreneurs] have the same core temperament as their industry-creating, business entrepreneur peers� � � social entrepreneurs focus their entrepreneurial talent on solving social problems—why children are not learning, why technology is not accessed equally, why pollution is increasing, and so on� the essence, however, is the same� both types of entrepreneur recognize when a part of society is stuck and provide new ways to get it unstuck� they envisage a systemic change, identifying the j[i]ujitsu points that will allow them to tip the whole society onto this new path, and then persist and persist until the job is done�7 social entrepreneurship is now a widely used term, often conveying different meanings depending on the user�8 for the purposes of this essay and our collaboration, we broaden drayton’s original definition of social entrepreneurs as those who possess a “powerful, new, system chang[ing] idea”9 to include social entrepreneurs who use business techniques or sustainable market mechanisms to “directly address[] an intractable social need and serve[] the common good�”10 social justice is expanded through social entrepreneurship as social entrepreneurs work to instigate social, 2 george washington university law school’s small business and community economic development clinic� more information about the clinic can be found at http://www�law�gwu�edu/academics/el/clinics/sbced/ pages/overview�aspx� 3 georgetown university law center’s social enterprise and nonprofit law clinic� more information about the clinic can be found at www�socialenterprise-gulaw�org� 4 university of michigan law school’s international transactions clinic� more information about the clinic can be found at www�law�umich�edu/itc� 5 ashoka: innovators for the public� more information about ashoka can be found at www�ashoka�org� 6 caroline hsu, entrepreneur for social change, u.s. news & world report online, oct� 31, 2005, available at http://www�usnews�com/usnews/news/articles/051031/31drayton�htm (last visited sept� 27, 2013)� 7 william drayton, the citizen sector: becoming as competitive and entrepreneurial as business 44 cal. mgmt. rev. 120, 123 (2002). 8 see robert a� wexler, effective social enterprise – a menu of legal structures, 6 the exempt org. tax rev� 565 (2009) (“those of us who work with social enterprises recognize by now that there is no legal definition of social enterprise, and there is not even a uniformly recognized nonlegal definition, although there have been many valiant attempts�”) see also, alicia e� plerhoples, representing social enterprise, 20 clinical l. rev� 701, 709-718 (2013) (defining social enterprise through the various business models social entrepreneurs use)� 9 drayton, supra note 7, at 123� 10 what is social enterprise?, social enter. alliance, https://www�se-alliance�org/what-is-social-enterprise (last visited sept� 24, 2013)� 504 international journal of clinical legal education issue 20 economic, and environmental change�11 our cross-university collaboration aims to provide law students with the forum to advance social entrepreneurship globally� this essay discusses the motivations, operations, lessons, and next steps of our cross-university clinical collaboration� specifically, this essay examines why the collaboration was launched, how the collaboration is structured, what the collaboration offers clients and participating law students, how the collaboration has expanded the skills and knowledge of the three clinical directors who are participating in this collaboration, and where this collaboration intends to turn its attention to next� finally, we also offer advice to other clinical law faculty for structuring their own cross-university collaborations� 1. why collaborate? from the outset, we shared several key reasons for participating in this collaboration� first, we believe that ashoka is better served by our three clinics collectively than any of the clinics individually� ashoka is a global network of social entrepreneurs with close to 3,000 ashoka fellows spanning 76 countries�12 ashoka provides “start-up financing, professional support services, and connections to a global network across the business and social sectors, and a platform for people dedicated to changing the world�”13 multiple law firms partner with ashoka to serve its legal needs and the legal needs of its fellows� similarly to ashoka’s law firm partners, our three law clinics also support ashoka and its fellows� we also share the desire to learn from each other� through our collaboration, we see how we each have structured the design and delivery of our legal services in a transactional clinical context and globally� we also wish to support each other in our legal work by sharing legal tools, practice methods, and other resources� finally, and importantly, we are also motivated to work together for the purpose of facilitating and encouraging the legal academy and law students to study and contribute to the growing social entrepreneurship sector� our collaborative approach employs two methods: (1) students at the law schools collaborate to develop and share “best practices” for the sector through the production of legal toolkits and research that helps ashoka further its charitable mission, and in turn, expand the field of social entrepreneurship; and (2) students, through the law clinics at each law school, also provide 11 some social enterprises use not-for-profit models for their operations; other use for-profit models� still others use hybrid models that pair not-for-profits with for-profits in ownership and governance structures, or through contractual relationships� the decision as to how best to structure a social enterprise often turns on a variety of issues that go far beyond just the simple question of whether the founders intend to make money� some of the most common issues range from the mission or motivation of the enterprise’s founders, source of capital available to the enterprise (initially and over the longer term), size of the potential market (hence scalability of the enterprise), and founders’ desire for control� see jim fruchterman, for love or lucre, stanford soc. innov. rev� 42-47 (2011) (describing key business issues that will likely shape a social enterprise’s choice of legal structure)� contra albert hyunbae cho, politics, values and social entrepreneurship: a critical appraisal, in social entrepreneurship 34, (johanna mair, et al� eds�, 2006) (challenging social entrepreneurship approaches for their potential to create two problems: “they may coercively impose entrepreneurs’ visions of terminal objectives and the means appropriate to achieve them, and they may yield incomplete, even perverse solutions that ignore fundamental drivers of social problems�”); fredrik o� andersson, social entrepreneurship as fetish, nonprofit quarterly, apr� 11, 2012 available at http://www�nonprofitquarterly�org/management/20140social-entrepreneurship-as-fetish�html (last visited dec� 12, 2013) (questioning the promise of social entrepreneurship and arguing that because of “the lack of rigorous research and evidence of what it is, what works, and what doesn’t, it appears premature to urge nonprofits to become more entrepreneurial�”) 12 ashoka is registered as a 501(c)(3) tax-exempt organization in the united states� 13 ashoka: innovators for the public, https://www�ashoka�org/about (last visited dec� 13, 2013)� 505 clinical collaborations: going global to advance social entrepreneurship business and transactional legal services to ashoka and individual ashoka fellows who run social enterprises within ashoka’s network� the social enterprises that the clinics serve are intent on making positive economic, social, and/or environmental impacts on the communities in which they operate�14 transactional lawyers have an important role to play in facilitating the social enterprise movement� the clinics at michigan, george washington, and georgetown engage law students in this multi-layered endeavor as they undertake legal representation, strategic planning, and advocacy on behalf of ashoka and ashoka fellows in the u�s� and abroad�  in addition to these shared objectives and methods, each clinic in this collaboration has its own unique reasons for participating in this tripartite clinic collaboration� the primary motivations of each of the clinics follow� first, however, this essay begins with an explanation of why our client ashoka decided to work with all three clinics collectively, instead of engage each clinic separately� a. ashoka’s outreach to the next generation of lawyers ashoka sits in a unique position to help advance the evolving area of law and social entrepreneurship� ashoka has built the world’s largest association of leading social entrepreneurs through an extensive network of ashoka fellows� since 1980, ashoka has elected close to 3,000 ashoka fellows spanning 76 countries� ashoka has an extensive international network that supports the unique mission and objectives of its fellows, in particular, and social entrepreneurs, in general� given ashoka’s position and objectives, jonathan ng, ashoka’s global legal director, recognizes social entrepreneurs’ profound need for access to quality legal advice from lawyers who understand the concept of social entrepreneurship and who are particularly creative and entrepreneurial themselves� furthermore, many social entrepreneurs start and grow new organizations, creating a particular need for transactional legal support� such transactional legal support may consist of advising on entity formation and other general corporate matters� the organizations that social entrepreneurs create sometimes do not fit neatly within the traditional legal confines of a nonprofit or for-profit entity� a social entrepreneur, for example, may seek to generate revenue through charitable grants and donations while also developing earned income revenue streams by providing services for fees or selling products� as such, an ashoka fellow’s choice of legal entity may necessitate a hybrid model whereby an organization consists of both a nonprofit and for-profit entity, either working in parallel as affiliates or under a membership structure (i�e�, this could take the form of a shared governance structure or possibly even a parent/subsidiary-like structure )� once an ashoka fellow’s organization is established, he or she must also deal with other typical legal issues such as entering into contracts, applying for trademarks and protecting other intellectual property, hiring staff, and establishing good governance and internal policies�15 although many of these legal issues may not differ from a typical nonprofit organization or other type of start-up entity, the approach to lawyering for 14 ashoka selects fellows through a rigorous screening process through which ashoka evaluates the social entrepreneur’s creativity, ethical fiber, entrepreneurial quality, and potential social impact of the idea or solution proposed� for a full list of ashoka fellows and more information about their work, see ashoka: innovators for the public, https://www�ashoka�org/fellows (last visited dec� 13, 2013) 15 many of these needs are within the areas of expertise of one or more of the collaborating clinics� for example, students in george washington’s sbced clinic may be certified to file trademark applications on behalf of clinic clients through the us patent and trademark office pilot law school certification program� 506 international journal of clinical legal education issue 20 social entrepreneurs may differ because of the doubleor triple-bottom line objectives of the organization (i�e�, a social and/or environmental mission in addition to a profit-driven mission)� further, as the area of social entrepreneurship continues to evolve, so too have the laws affecting social entrepreneurship� examples include the creation of new forms of legal entities to accommodate social enterprises�16 open-source licensing also can facilitate innovation in social entrepreneurship� as the law begins to catch up with what social entrepreneurs are doing on the ground, lawyers will need to understand these laws and better understand the unique needs of social entrepreneurs to more effectively counsel them� as such, ashoka believes in developing a community of lawyers knowledgeable about, and engaged in, the social entrepreneurship space� ashoka has created an extensive network of pro bono legal partnerships with some of the leading global law firms such as latham & watkins, hogan lovells, and linklaters, among others, that assist both ashoka and ashoka fellows� to expand this community, ashoka believes in investing in law students who will become the new generation of lawyers to work with an ever-emerging client base of social entrepreneurs� for this reason, ashoka has piloted the collaboration with law school clinics that teach law students the transactional lawyering skills required to assist social entrepreneurs� b. why the university of michigan’s international transactions clinic? when the international transactions clinic (itc) was launched at the university of michigan law school in the fall of 2008, it was the first of its kind in the world – a law clinic focused exclusively on providing legal services to support cross-border transactions conducted by organizations seeking to change the world for the better� when announcing the launch of the itc, then dean caminker explained, “this is an exciting opportunity to involve a new generation of bright legal minds in cross-border transactions that will train our students for a lifetime of international business dealings, and that can also make an enormous difference in the lives of the people in the developing world�”17 the itc is living up to its tag line: “doing good by doing deals – globally�” since its launch in 2008, the itc has enrolled nearly 80 students who, in turn, have advised clients in the conduct of over 100 transaction matters� initially the itc focused on serving clients that worked in the microfinance sector� now, five years later, the itc’s clients range from for-profit to not-for-profit 16 social enterprises have a growing number of legal structures available to them in england and wales, and the united states, for example� in england and wales, there are two legal forms that were created specifically for social enterprises – community interest companies (“cics”) and charitable incorporated organizations (“cios”)� see morrison foerster & trustlaw connect, “which legal structure is right for my social enterprise? a guide to establishing a social enterprise in england and wales” (april 2012) (on file with authors)� in the united states, a growing number of state legislatures have enacted legislation specifically designed for social enterprises, such as low-profit limited liability companies (l3cs), flexible purpose corporations (in california), and benefit corporations (in 19 states and washington, dc)� see carter g� bishop, fifty state series: l3c & b corp legislation table, suffolk university law school legal studies research paper series, research paper 10-11 (july 10, 2012); state by state legislative status, benefitcorp. net, http://www�benefitcorp�net/state-by-state-legislative-status (last visited dec� 11, 2013); see also morrison foerster & trustlaw connect, “which legal structure is right for my social enterprise? a guide to establishing a social enterprise in the united states” (may 2013) (on file with authors)� 17 evan h� caminker, branch rickey collegiate professor, professor of law, and former dean of the university of michigan law school (announcing the launch of the international transactions clinic in 2008)� 507 clinical collaborations: going global to advance social entrepreneurship organizations, from start-up companies to well-established businesses, and from impact investors to social enterprises� some itc clients are based in ann arbor, michigan; others are based in such places as bangladesh, kenya, and tajikistan�18 however, what the itc’s clients all hold in common is an international focus and passion for improving the world with innovative business models, products, and services� jonathan ng and his colleagues at ashoka approached itc director deborah burand in the spring of 2012 after hearing her speak at a conference about the itc’s pro bono representation of social enterprises and impact investors engaged in cross-border transactions� they asked if the itc could provide legal services to ashoka and its globalizing fellows19; burand quickly agreed� the clinic’s physical distance from ashoka (its headquarters are based in northern virginia) and globalizing fellows (who are located around the world) was not an impediment as the itc was used to working with clients that were not based in michigan (or in the united states, for that matter)� the bigger issue facing the itc was that of capacity� at the time of the itc’s initial discussions with ashoka, ashoka had more than 50 globalizing fellows� the itc could not serve all of these new ashoka-related clients at once while also providing legal services to its existing client population� this capacity problem coincided with another issue facing itc director burand: the itc’s exclusive focus on working internationally made it an outlier with respect to other transactional law clinics in the united states and elsewhere in the world� burand felt professionally isolated as a result� a few weeks after the itc and ashoka began discussing a potential collaboration, burand spoke at a transactional law clinic conference in the united states and inquired if any other u�s�-based transactional law clinics had considered pursuing international deal work� at this conference, burand connected with the other professors that now participate in the tripartite clinical collaboration� shortly upon returning to michigan, burand called ashoka and asked ng if he would be open to piloting a clinic collaboration with transactional law clinics based at michigan, georgetown, and george washington law schools� given ashoka’s emphasis on developing ecosystems that advance social entrepreneurship, ng agreed� during the first year of the collaboration, the itc took on three transactional matters—one for ashoka as the client and two for ashoka globalizing fellows based in kenya� the legal services the itc provided to these clients varied greatly and included, among other things: (i) developing a compliance guide to raise awareness about and ensure compliance with u�s� laws and regulations in the areas of anti-money laundering, combatting the financing of terrorism, foreign corrupt practices, and economic sanctions; (ii) creating microfranchise agreements easily understood by small shopkeepers in rural kenya; and (iii) analyzing entity formation choices and funding agreements necessary for expanding a social entrepreneur’s business into south sudan� 18 the itc does not offer legal advice about the laws of countries outside the united states� rather, much like global law firms, the itc limits its role on cross-border transactions to that of acting as international counsel, and looks to local counsel to provide local law advice as appropriate� 19 ashoka’s globalizing fellows are a subset of ashoka fellows within ashoka’s networks whose “ideas have the greatest potential to catalyze global systems change�” john converse townsend, going global: ashoka globalizer fellows are off to vienna from nov. 5 to nov. 7, ashoka blog (nov� 3, 2011), available at: https:// www�ashoka�org/story/going-global-ashoka-globalizer-fellows-are-vienna-nov-5-7 (last visited sept� 25, 2013)� 508 international journal of clinical legal education issue 20 c. why georgetown’s social enterprise and nonprofit law clinic? the social enterprise and nonprofit law clinic (senl clinic) was not yet operational when its director, alicia plerhoples, began participating in the collaboration� in spring 2013, plerhoples taught an experiential seminar on social entrepreneurship at georgetown in which law students worked with ashoka to develop legal case studies of globalizing fellows and a social entrepreneur recommended to ashoka by one of its law firm partners�20 ashoka tasked the law students with writing legal case studies that illuminate some of the legal issues that social enterprises face, and identifying how the lawyers of these social enterprises are molding current legal regimes for their clients’ social purposes� working in teams of two, georgetown law students conducted due diligence to learn about the social entrepreneurs who agreed to take part in the case studies� the students conducted in-depth interviews of each participating social entrepreneur and also interviewed the lawyers who assisted the social entrepreneurs in their work� through the class seminar, the law students learned about social entrepreneurship generally and also discussed the many legal issues that social entrepreneurs face as they attempt to launch, grow, and scale their organizations� with that background knowledge in hand, the law students analyzed their research and drafted the legal case studies� the first legal case study explores the innovative capital raising models undertaken by a social enterprise that provides solar power to developing countries� the case study discusses the securities laws that the social enterprise navigated as it sought to crowdfund21 its operations, as well as the founding entrepreneurs’ decision to join an accelerator whose management team understood the organization’s social impact mission (as opposed to an accelerator that prioritizes fast-growth startups with a potential for high profit)� the second legal case study details the organizational structure and governance methods used by a social enterprise that works with mexican communities to develop wind farms on their most valuable community asset—land� the legal case study discusses how the social mission of the social enterprise was anchored through legal mechanisms (including corporate form) and communities were engaged and mobilized through direct participation in the social enterprise’s decision-making process� these legal case studies were undertaken under the auspices of the first objective of our collaboration: the production of legal tools and research that helps ashoka further its charitable mission, and in turn, expand the field of social entrepreneurship� georgetown law students presented the final case studies to participants within ashoka’s network in may 2013, and at the annual conference on social entrepreneurship at new york university’s stern school of business in november 2013� since then, the case studies have been shared through the ashoka network and elsewhere as an educational tool for other organizations facing similar legal issues� with this experiential seminar as its starting point, the senl clinic began its first semester of operation in august 2013� senl clinic’s goals are to: (1) teach law students the materials, expectations, strategies, methods, and lexicon of transactional lawyering, as well as an appreciation 20 two of the legal case studies are available for download at www�socialenterprise-gulaw�org� 21 “crowdfunding is by definition, ‘the practice of funding a project or venture by raising many small amounts of money from a large number of people, typically via the internet�’” tanya prive, what is crowdfunding and how does it benefit the economy?, forbes blog, november 27, 2012, available at http://www�forbes�com/sites/ tanyaprive/2012/11/27/what-is-crowdfunding-and-how-does-it-benefit-the-economy (last visited september 27, 2013)� 509 clinical collaborations: going global to advance social entrepreneurship for how transactional law can be used in the public interest; (2) represent social enterprises and nonprofit organizations in corporate and transactional legal matters; and (3) facilitate the growth of social enterprise in the washington, d�c� area� as the collaboration between ashoka and the law clinics has developed, senl clinic has undertaken direct legal representation of ashoka fellows on transactional and corporate legal issues� ng also participates in senl clinic’s seminar; he serves as a guest lecturer and teaches clinic students about the global social enterprise sector generally as well as discusses his role as an in-house social enterprise lawyer for ashoka� participating in the collaboration provides the senl clinic with a source of established social enterprise clients with complex legal issues to challenge clinic students�22 it also introduces students to the social entrepreneurship sector and a means of using transactional lawyering in the public interest� most business schools in the united states now have courses in social entrepreneurship; however, only a handful of law schools have corresponding classes�23 many transactional law clinics (such as george washington’s small business and community economic development clinic) have engaged social enterprises since such clinics began in the 1970s, although it has not always been labeled as such� thus, for now, law students are most likely to encounter social enterprise in a clinical course representing a social enterprise, nonprofit, or small business� the senl clinic attempts to explicitly engage students in the study of social enterprise through the representation of such clients� d. why george washington’s small business and community economic development clinic? when asked to participate in the collaboration, small business and community economic development clinic (sbced clinic) director susan jones welcomed the opportunity to expand the reach of her well-established clinical program�24 since its inception in 1977 the sbced clinic has represented microbusinesses, nonprofit organizations, and artists� although the sbced clinic has long identified and served several clients working in the social entrepreneurship sector, the clinical collaboration with ashoka provided the chance to include social entrepreneurship into the clinical curriculum in a more robust manner� in addition, the collaboration allowed sbced clinic students to link local community economic development (ced) issues with international and domestic social enterprise concerns� in the u�s�, ced emerged primarily during the civil rights era (1950s-1970s) in response to “tenacious poverty and the need for affordable housing, good 22 for a discussion of complex transactional legal work within a clinical setting and its pedagogical benefits to students, see laurie hauber, complex projects in a transactional law clinic, 18 j� affordable housing & community dev� l� 247 (2009)� 23 for example, deborah burand now teaches a seminar on impact investment lawyering at the university of michigan law school in addition to directing the itc� this seminar examines legal issues that are likely to arise in the life cycle of investments into social enterprises from the perspective of counsel to the investor (the impact investor) and counsel to the investee (the social enterprise)� 24 for a description of the sbced clinic’s operations and goals, see susan r� jones, small business and community economic development: transactional lawyering for social change and economic justice, 4 clinical l. rev� 195 (1997)� see also susan r� jones & jacqueline lainez enriching the law school curriculum: the rise of transactional legal clinics in us law schools, ___wash. u. j. l & soc. pol’y ___(forthcoming 2013)� 510 international journal of clinical legal education issue 20 jobs and affordable health care, and other quality-of-life matters needed for human existence�”25 overall, ced encompasses “a wide range of economic activities …[including] small business development and involves community building beyond that which is purely economic�”26 today, ced is structurally aligned with the social, economic, and environmental (i�e�, triple-bottom line) of social enterprise and has the capacity to link local economy issues to global economic concerns� during the initial phases of the collaboration, the sbced clinic represented ashoka and created a legal audit checklist for social entrepreneurs that is now widely available to ashoka fellows� the legal audit checklist lists topics, identifies legal issues, and poses questions for social entrepreneurs to discuss with legal counsel� by providing social entrepreneurs with the right questions to ask their legal counsel and educating them on legal terminology, the legal audit checklist helps social entrepreneurs establish a productive attorney-client relationship and saves the social entrepreneur time and money that might otherwise be spent on legal fees� next, students in the sbced clinic represented a nonprofit organization founded by an ashoka fellow whose mission is teacher training and education reform� the sbced clinic also directly represents ashoka on contractual matters� going forward, students in the sbced clinic will also represent other social enterprises founded by ashoka fellows� 2. how is the clinic collaboration structured? our clinic collaboration has two tiers� first, each clinical program represents ashoka as a client or community partner� the itc and sbced have established an attorney-client relationship with ashoka and provided legal services to ashoka directly� all three clinics also partner with ashoka to produce research, legal toolkits, and other materials useful to the social entrepreneurs that ashoka supports� sometimes, ng directs the clinics to produce these materials, but just as often, we pitch ideas to ng regarding legal projects that ashoka fellows might find useful� second, ashoka refers its fellows as needed to one of the clinics� the match is made based on the client’s needs and the clinic’s availability and specialty� in these cases, the clinic establishes an attorneyclient relationship directly with the ashoka fellow, which includes entering into an engagement letter with the client� in each attorney-client relationship (i�e�, between a clinic and ashoka, or between a clinic and an ashoka fellow), client confidentiality is maintained� that is, once the match is made or the project is advanced, the clinic directors do not discuss client confidences amongst each other unless the client (either ashoka or an ashoka fellow) has provided informed consent to waive confidentiality�27 moreover, matches are made based on a clinic’s particular expertise and core competencies; at the outset of the collaboration each clinic director provided ng with a description of her clinic’s legal services� an additional, intentional design of this collaboration is the clinic directors’ coordination of efforts in order to ease any administrative burden that ng might feel had he worked with each clinic separately� that is, ng does not have to meet with each clinic director separately to pitch 25 roger a. clay jr. & susan r. jones, building healthy communities: a guide to community economic development for advocates, lawyer and policymakers, american bar association, 2009� 26 id� 27 because separate attorney-client relationships are formed within the collaboration, each clinic operates according to its own governance principles and under its own malpractice or professional liability insurance� the clinics are not responsible for each other’s legal work� 511 clinical collaborations: going global to advance social entrepreneurship projects or clients� every quarter, the clinic directors and ng meet as a group to discuss the collaboration, new ideas, ongoing legal projects, and potential clients� these regular check-ins facilitate the collaboration by reducing administrative overlap and by maintaining transparency and accountability in our collective work, while also keeping us on task to achieve our collective mission� 3. what does the clinic collaboration offer students and ashoka clients? in addition to gaining competence in the many lawyering skills typically taught in transactional law clinics,28 the collaboration provides students with the opportunity to contribute to the social enterprise sector and represent established social enterprises that have complex legal needs� the clients of the clinics gain lawyers who are attune to the particular legal needs of social enterprise clients� transactional lawyers have an important role to play in facilitating social enterprise, similar to their integral role in small business development, the nonprofit sector, and community economic development: business lawyers facilitate economic activity� they structure transactions and navigate laws and regulations for the benefit of their organizational clients� a sophisticated business lawyer must understand the client’s business as well as the context and regulatory framework in which the client operates� the emerging sustainability field thus requires that business lawyers be able to articulate, advocate for, and take into account the client’s sustainability goals when structuring a transaction or otherwise facilitating the client’s business strategy or operations� because sustainability goals are difficult to shape into a viable business model, business lawyers must help their social enterprise clients by spotting routine and novel legal issues, navigating legal gray areas, fitting sustainability initiatives into the existing legal and regulatory framework, and assisting in creating a new framework that can accommodate sustainability goals�29 the clinic collaboration offers law students the opportunity to engage in this important work and contribute to the social enterprise field through direct representation of social enterprise clients as well as by acting as advocates for the sector� in some ways, transactional law clinics and their participating law students are ideally positioned to assist the growing social enterprise sector, 28 lawyering skills learned in the typical transactional law clinic have been well documented and will not be repeated here� see, e.g�, alicia alvarez & paul tremblay, introduction to transactional lawyering practice (2013) (discussing these transactional lawyering skills: interviewing, transaction planning, counseling organizational clients, negotiating transactions and contracts, drafting transactional documents, and navigating ethical issues in transactional practice); susan d� bennett, embracing the ill-structured problem in a community economic development clinic, 9 clinical l. rev� 45 (2002) (discussing problem-solving in the transactional context); ronald j� gilson, value creation by business lawyers: legal skills and asset pricing, 94 yale l.j� 239 (1984); karl s� okamoto, teaching transactional lawyering, 1 drexel l. rev� 69 (2009); lisa penland, what a transactional lawyer needs to know: identifying and implementing competencies for transactional lawyers, 5 j� ass’n legal writing dirs. 118 (2008)� 29 plerhoples, supra note 8, 739-740 (defining “sustainability” in the corporate sector as the strategic pursuit of social, environmental, and financial value creation to facilitate the needs of present and future generations; as opposed to the pursuit of financial value singularly to the detriment of present and future generations)� 512 international journal of clinical legal education issue 20 locally and globally� law students who participate in such clinics have the interest, capability, and time to (i) reflect on the legal work they perform for individual social enterprise clients, (ii) aggregate information across social enterprise clients, (iii) identify patterns of legal needs and deficiencies in the social enterprise sector, and (iv) develop strategies and solutions to satisfy the collective interests of the social enterprise sector� one ashoka globalizing fellow echoed this view after working with the itc during the 2012-2013 academic year: the structure of the [international transactions] clinic is great for what we need as high-growth enterprises, because it allows for the time and dedication to get to know our businesses and culture and risks, rather than rushing to template solutions that really aren’t a good fit�30 “client-centered lawyering,” a pedagogical method used by all three law clinics, also facilitates student learning and clients’ achievement of their individual goals� client-centered lawyering is a lawyering method that emphasizes the client’s voice, decision-making abilities, values, and goals�31 the client-lawyer relationship is collaborative rather than hierarchical� client-centered lawyering is a skill that social enterprises, in particular, require given their blending of profit-motives with philanthropic motives� it is also a skill that students can use to distinguish themselves as social enterprise lawyers� at ashoka’s future forum in may 2013, plerhoples spoke with social entrepreneurs within ashoka’s network about the role of a transactional lawyer in facilitating the social enterprise’s work� a key issue that was expressed by social entrepreneurs at this future forum panel is the need for lawyers who (i) understand the multiple bottom lines (financial, social and environmental returns) of the social enterprise, (ii) view the representation as an opportunity to shape law and regulation for the social enterprise’s benefit, and (iii) charge reasonable and affordable rates� some audience members had encountered lawyers that they characterized as inflexible “naysayers” who were unable to “think outside the box” and failed to fully appreciate the missions of their social enterprise clients� in stark contrast, the law clinics teach students to engage in client-centered lawyering� law students are taught to (i) study an organizational client’s mission, operations, and goals, (ii) see problems from the client’s perspective, (iii) help the client identify and assess benefits and risks inherent in proposed actions, (iv) facilitate the client’s decision-making process, and (v) help the client achieve its goals� by adopting a client-centered approach, students must minimize their own assumptions and think creatively to achieve novel or unlikely solutions to a problem� students also learn about social enterprise business and funding models as a means of understanding the industry they serve� by adopting a client-centered approach, our law clinics and students are better able to serve social enterprise clients that are often pushing the boundaries of the law to fit their multiple bottom line missions� 30 madison ayer, director, honey care africa 31 binder et al., lawyers as counselors: a client-centered approach (1991) (describing client-centered lawyering and illustrating its application to the attorney-client relationship)� 513 clinical collaborations: going global to advance social entrepreneurship 4. what does this clinic collaboration teach the three participating clinical directors? at a most basic level, our collaboration teaches us to “walk our talk” and to reflect on what we ask our students to learn – that collaboration is “a process in which respectful interaction brings the talents of all parties to bear on a problem�”32 as professor david chavkin observes, our students collaborate with their peers and with their clinical supervisors in rounds and in supervision meetings�33 they tend to use one of three collaborative models, “input collaboration” (one team member comments on another team member’s work); “parallel collaboration” (team members divide tasks); and “true collaboration” (all team members brainstorm at all phases of the collaboration—drafting, brainstorming, and final implementation)� true collaborators discuss goals, strategies, and other significant issues so that the viewpoints and insights of all collaborators are acknowledged, choices are explicitly identified and strategies are developed based on the relevant choices� indeed, true collaboration maximizes the benefits of each member’s experience and knowledge brought to the enterprise�34 research shows that there are myriad benefits of collaboration� collaboration improves the outcome of work product, honors the life (and in this instance, the teaching experiences) of each team member, and highlights the fact that that a range of life experiences lead to more effective advocacy for clients� collaboration also recognizes differences as strengths, increases motivation, and reduces anxiety�35 in our collaboration, we are learning not only a great deal from our clients about the need for legal structures to support hybrid business entities, we also are learning from different transactional clinic design choices, different lawyering experiences, and clinical teaching methods� each of these three clinics is at a very different stage of development� george washington has a mature clinic� the senl clinic at georgetown is in its start-up phase� the itc exists between the two clinics, having just celebrated its 5th year anniversary� as clinicians with varying levels of law teaching experience, we also are learning from each other� to illustrate, jones, who leads the most mature clinical program of the three clinics, learned a great deal from burand and plerhoples as they grew and developed their programs� one specific example of a lesson learned is how to incorporate outside lawyers in a clinic, which itc has successfully done�36 burand, in turn, has learned from her collaborators how transactional clinics are particularly well suited to providing 32 david f. chavkin, clinical legal education: a text for law school clinical programs, at 88 (2002). 33 id� 34 id� at 88-89� 35 id at 86-87� 36 the itc makes use of nearly a dozen practicing lawyers in its work� these practicing attorneys, together with fulltime law faculty of the itc, supervise itc law students� and, for more complex cross-border transactions, these practicing attorneys and their collaborating law firms offer legal advice on issues that are beyond the scope of the itc – such as tax structuring advice for cross-border investment vehicles, for example� in these instances, the law firms often structure their collaborations with the itc as a co-counseling arrangement, whereby the law firm enters into a separate engagement letter with the client� 514 international journal of clinical legal education issue 20 action research and policy advice that advances broader sectorial interests�37 as the newest clinician, plerhoples has gained mentors in jones and burand, consulting them on both complex and mundane administrative and pedagogical issues� because of our collaboration, we each have an additional colleague to call upon for professional advice� 5. what are the challenges of the collaboration? despite the early successes of our collaboration, we also recognize the challenges� first, despite our collaborative efforts, we do not have the collective capacity or competencies to assist ashoka on all its legal matters, or to assist all ashoka fellows on their legal matters� the three clinics involved have a dual role—both teaching students and serving clients� therefore, our clients’ legal needs must be balanced against our students’ educational needs� students conduct the client work, and each clinic director builds in the necessary time for careful supervision of student work and reflection by students on their work and clinical experiences� this valuable, but time-consuming pedagogical method constrains the number of clients the clinics can represent� moreover, each clinic has its own constraints related to its pedagogical and service-oriented objectives� while ashoka fellows most often operate globally, both sbced and the senl clinic are also committed to serving nonprofit organizations and small businesses locally� for this reason, international organizations do not constitute these two clinics’ entire client base� there are also some legal matters that fall outside the clinics’ varying scopes of expertise, such as securities law�38 finally, a major challenge relates to the legal practice rules of different jurisdictions� where the clinic directors (and other clinic faculty) are licensed or authorized to practice is taken into account when matching an ashoka fellow with a clinic� if a matter arises in a jurisdiction in which a clinic director or clinic faculty member is not authorized to practice, the clinics may still represent the client if they can limit the focus of the legal work to satisfy practice requirements, or they can work with local co-counsel� for example, the itc collaborates with attorneys at law firms that can tap into their global network of attorneys� the itc also has started to co-counsel with llm graduates of the university of michigan law school that have returned to their home jurisdictions� ashoka is also able to connect the clinics with its network of law firms� importantly, we are each aware of and respect the limitations of our collaboration� 6. what’s next? social entrepreneurship is growing in the world� the number of those investing in such social enterprises (often called “impact investors”) also is growing� many of these transactions are 37 prior to this clinic collaboration, director burand focused much of the itc’s work on specific client deal engagements� she then observed first-hand the “action research” that the other two clinics were conducting for ashoka and its fellows� accordingly, before the end of the first year of the clinic collaboration, law students in the itc were providing public comments on draft u�s� regulations regarding investments into myanmar where the students identified possible confusion that could arise when applying these regulations to investments made into myanmar by hybrid (for-profit and not-for-profit) organizations� 38 the clinic each work with outside attorneys, to varying degrees, to provide additional legal services where possible� 515 clinical collaborations: going global to advance social entrepreneurship taking place across national borders�39 transactional law clinics can play an important role in developing lawyers who understand the unique risks and opportunities in this sector and can bring international transactional legal skills to bear on these new types of deals� knowledge of the local laws relevant to these transactions also is important� finding local counsel that understands the nuances of transactions that are intent on generating multiple types of returns can be challenging� given that so many social enterprises are operating in emerging markets, there is an obvious need for law schools in such markets also to help grow the next generation of lawyers capable of advising social entrepreneurs and impact investors about the laws of their respective jurisdictions� this is a particularly significant role that law schools can play in countries where there is a more limited culture of pro bono representation by law firms� accordingly, extending our clinical collaboration across borders to transactional law clinics in other countries seems a natural and important next step� thus far, we have each taken on legal projects and client representations and enlisted our clinic students to manage the legal projects and represent the ashoka-referred clients, but our students in each clinic have not interacted with each other� that is, students from each of the legal clinics interact directly with ng or the ashoka fellow, but they have not interacted with students from the other collaborating clinics� our interaction has only occurred at the director-level� we hope to build cross-university collaboration among our students in the near future� from there, we hope to expand our clinical collaboration to create a network of law school clinics from around the world and adopt additional clients beyond ashoka and ashoka fellows� we envision a network in which clinic directors and law students from multiple law schools co-counsel with each other – crossing borders to provide legal advice that supports international investments in social enterprises� for example, the senl clinic represents a u�s�-based nonprofit organization that supports rwandan cooperatives� a network of law school clinics working collaboratively would allow u�s� clinic students to work with rwandan-based law students to serve the legal needs of our cross-border social enterprise client� 7. lessons learned despite the early stage of our collaboration, we hope that our clinical collaboration provides useful lessons for other clinicians to work collaboratively and across universities� to launch this collaboration, we undertook the following initial steps, and offer them as advice to other clinical law faculty seeking to engage in clinical collaborations: identify a client whose legal needs are too numerous and/or are too varied to be served by a single transactional law clinic; 1� obtain the client’s agreement to be served by a consortium of clinics; 2� identify each transactional law clinic’s “sweet spot” of legal services to determine 39 a 2011 survey of over 2,200 impact investments conducted by j�p� morgan and the global impact investment network (giin) found that nearly two-thirds of the number of impact investments surveyed were made into emerging markets (67% were made into emerging markets, 31% were made into developed markets, and 2% were made globally)� on the other hand, the notional values of these surveyed impact investments skewed toward developed markets (44% in emerging markets, 53% in developed markets, and 4% globally)� see yasmin saltuk, amit bouri, giselle leung, “insight into the impact investment market: an in-depth analysis of investor perspectives and over 2,200 transactions,” at 12 (j�p� morgan’s social research, december 14, 2011) available at: www�thegiin�org� 516 international journal of clinical legal education issue 20 how and when to allocate work across the collaborating clinics� this necessarily involves a discussion of each clinic’s structure, design, client selection process, timeline for accepting legal work, etc�; 3� develop separate engagement letters with the client for each clinic; 4� discuss confidentiality concerns and respect attorney-client boundaries (e�g� ashoka might engage the itc on a particular matter that the itc then keeps confidential, even amongst the collaborating parties; we also never discuss ashoka fellow client matters with ng or other ashoka representatives unless expressly authorized); and 5� establish regular check-in points so that the collaborating law clinics can discuss ongoing legal products, continue to look for new opportunities to collaborate, pitch project ideas to the client, and obtain feedback from the client as to the value of the collaboration� additionally, although not every clinical collaboration will follow a similar model, there are three lessons that likely are critical to success� these are: (1) pick your clinic collaborators carefully to ensure that the clinics have complementary skill sets and learning goals; (2) choose an appropriate client because not every client is well suited to a clinic collaboration; and (3) invest your time and build trust in the collaboration� 1. pick your clinic collaborators carefully before starting this clinic collaboration, the three clinic directors spent time outlining for each other, and for the potential shared client, ashoka, their respective practice areas and learning goals� they also described to each other and to ashoka their clinic structures, including number of students, number and expertise of faculty, duration of student commitment (both in terms of semesters and credits), and academic calendars� through this process, each clinic drafted a memo to ashoka, identifying those areas where it had particular and unique legal competencies� we agreed in advance to try to match legal projects to a clinic’s complementary areas of expertise and core competencies� at least quarterly, the clinic directors and ng meet (in person or by phone) as a group to discuss the matters that they are engaged in with ashoka and ashoka fellows (within the boundary of preserving appropriate attorney-client confidentiality) as well as brainstorm new collaborative projects� this has allowed the clinic directors to avoid “reinventing” wheels in their representations of ashoka and ashoka fellows� it also has allowed clinic directors to gain further understanding of and respect for the competency of its clinic collaborators� as clinic collaborations expand, an important concern to be addressed is how best to ensure that all of the participating clinics are dedicated to and capable of delivering high quality legal advice and service to their shared clients� this becomes particularly important when and if clinics begin to collaborate as co-counsel with each other while serving a single client� one can imagine circumstances where uneven quality in the legal advice delivered by one clinic could adversely impact the reputation of all of its other collaborating clinics� one potential way to mitigate this issue is to develop clinic collaborations gradually� for example, a clinic collaboration could start 517 clinical collaborations: going global to advance social entrepreneurship by first working on a simulated deal before graduating to a live client� 40 and even then, it may be a good idea to find “pilot” projects where the stakes are not particularly high and the deadlines for performance by the collaborating clinics are relatively relaxed� 2. choose an appropriate client ashoka was particularly well suited for this clinic collaboration because its legal needs are significant� moreover, as an organization that supports thousands of social entrepreneurs, ashoka brings a network of many additional potential clients to the table� this has meant that the clinics do not need to compete for clients� each clinic enters into a separate engagement relationship with the client it represents� additionally, ashoka’s interest in advancing the ecosystem for social entrepreneurship contributes significantly to the success of this collaboration� for example, ng visits law students in each of the three participating clinics and guest lectures in our seminars� he has introduced us to other lawyers who work in the social enterprise sector� and he has invited law students from each clinic to participate in legal webinars hosted by ashoka� in sum, ng has made himself available to both the clinic directors and our law students in order to assist our understanding of the legal issues that social entrepreneurs face� there are also more intangible but equally important aspects of taking responsibility for being a “good” clinical client, which ashoka has embodied� ng has this to say about how he views his responsibilities as a pro bono client of this clinical collaboration: as with any pro bono client, this means partnering with someone who, while being offered free legal services, doesn’t take it for granted� this includes treating pro bono counsel (in this case, the law school clinicians) as if they were paying for legal services and recognizing pro bono legal support as a finite resource� this means being prepared, showing up on time, setting reasonable expectations, and responding to requests in a timely manner� further, given the academic nature of a law school clinic, clients should embrace the learning component involved and do whatever he or she can to enrich the overall learning experience� this may sometimes require additional patience and providing more access to student clinicians so they can pause and reflect on why a certain decision was made or action was taken� ashoka is an extraordinary client, and particularly well suited—by structure and by mission—to participating in a global clinic collaboration� finding other potential clients that are able and willing to make an investment of time and energy in a clinic collaboration may be a challenge� one potential starting point might be to look for other “network-like” organizations that, like ashoka, can provide an introduction to multiple client engagements within their networks� because of their membership structure, incubators and accelerators might be a good fit� incubators and accelerators are programs that provide entrepreneurs with mentors and technical assistance, help refine business models and strategic plans, and offer start-up capital or opportunities to “pitch” to potential investors� 40 under the leadership of one of the itc’s adjunct clinical assistant professors, mary rose brusewitz, a partner with strasburger & price, llp, the itc collaborated with the transactional clinic of law school and business school students at the fundação getulio vargas, located in são paulo, brazil, as part of a simulation exercise to provide guidance to participants in the microfinance industry� students from the schools worked together to draft an array of legal documents, including engagement letters, a legal memorandum explaining how a microfinance participant might structure its entry into brazil, and a due diligence checklist� 518 international journal of clinical legal education issue 20 3. invest time and trust into the collaboration it did not take the three clinic directors long to realize that the potential benefits of this collaboration could (and should) go far beyond the scope of finding interesting clients to represent on a collaborative basis� over the first year of this collaboration, we have learned from each other as well as from ashoka� we often present at conferences together� we share issues and challenges that arise in our transactional clinic practices� we review each other’s scholarly legal research and writing� this broader engagement came about only because each clinical director has made this collaboration a priority� when emails arrive, they are responded to promptly� when calls are placed, they are received immediately� and, the quarterly meetings we hold with ashoka take place only on dates when all three directors are available and ready to participate� this kind of engagement does entail a cost—a commitment of time and trust� the fruits of such a collaboration, however, far outweigh these expenditures� the intimacy forged by such a clinic collaboration has provided a safe place for the clinic directors to challenge each other and learn from each other, without lapsing into the “group think” that sometimes marks larger academic conferences and convenings� and, as this clinic collaboration matures and potentially expands to include other clinics, perhaps outside the united states, it is expected that still more benefits will accrue – to the clinics, the clients served, and the students participating in these clinics� 383 running drop-in advice services in a university setting dr john russell* running drop-in advice services in a university setting in october 2011, london south bank university (‘lsbu’) opened a new drop-in legal advice clinic where law student volunteers – working under the supervision of practising solicitors – provide free, on-the-spot, face-to-face legal advice to the general public� our aim was to establish a drop-in advice service which would deliver a tangible benefit to the local community, develop students’ practical knowledge of the law in context, and provide a basis for developing a teaching and learning resource for other higher education institutions� in february 2012, we were highlighted in the million+ think tank’s report on innovative teaching in modern universities, ‘teaching that matters’, as involving students in a valuable community service while gaining real-world legal experience, developing transferable skills and enhancing their employability prospects� 1 in april 2012, we won a £5,000 lsbu vice-chancellor’s enterprising staff award for our demonstration of enterprise in enhancing the student experience and employability, providing a significant benefit for the local community, and demonstrating a wider significance to other higher education institutions nationwide� the legal advice clinic is now key to the marketing strategy for the law department� this paper describes our new service in its first year of operation� why run a drop-in advice clinic different institutions across the country are running a whole variety of interesting clinical legal education projects that are unique to them�2 however, the underlying basis of most university law clinics is the ‘letters of advice’ model as described by lawworks in its “sample law school clinic * lecturer in law / solicitor-advocate (higher courts civil proceedings� london south bank university 1 million+ (2012) teaching that matters, http://www�millionplus�ac�uk/research/teaching-that-matters� 2 lawworks student pro bono report 2011 and lydia bleasdale-hill, the experience of establishing and maintaining pro bono projects within an educational setting: a narrative (sept 2011) – both at lawworks�org� uk� 384 international journal of clinical legal education issue 19 handbook”�3 in this model, there is no public drop-in service� potential clients telephone the clinic and speak initially to the centre administrator� the administrator passes brief details onto the supervising solicitor who takes a view as to whether the inquiry is appropriate to be handled by the clinic: “factors taken into account include urgency, complexity and available expertise and whether or not the case is likely to be of educational benefit to the students�”4 if an inquiry passes this assessment, then an initial appointment will be for the client in at least one week’s time� a team of students will be assigned to the matter and begin preliminary legal research based on the information provided by the client in the initial telephone-call� after a week of research, the students meet the client for the first time and conduct a “fact-finding” interview where the giving of advice is strictly prohibited� the client leaves� the students have a post-interview review with the supervisor� there is a further reassessment as to whether the inquiry is suitable to be handled by the clinic� if the inquiry is deemed suitable, the students conduct further legal research and then over at least the next two weeks draft successive versions of a letter of advice for the supervisor to check� when the letter of advice is finally approved, it is sent to the client� advice is only given by writing� the drop-in clinic model works much more like a citizens advice bureau or law centre� the core service is delivered at open-door drop-in sessions where members of public simply turn up, and are given on-the-spot face-to-face legal advice� working under supervision, student volunteers interview and assess clients, research the enquiry while the client waits, and then give information and generalist advice, and/or signpost and refer to other local advice agencies and solicitors� there is also the option to refer clients to the clinic’s own appointment-based evening sessions, where volunteer solicitors give face-to-face specialist advice in a number of practice areas� at these evening sessions, students shadow the volunteer solicitor, and assist by writing up the attendance note� the main benefits of the drop-in model include that with suitable premises on the public highway and some local publicity, clinics are likely to find themselves inundated with clients� they will develop close working links with their local network of legal advice providers� according to schön’s terminology of ‘high ground’ and ‘swamp’ that describes the distinction between the rarefied artificiality of law exam problem questions and the messy reality of the undigested world,5 students are dropped in the deep end by making them the first point of client contact without any prior filtering� they will be presented with people who do not necessarily have a readily identifiable legal problem and learn to assist clients in translating their concerns into legally recognisable categories and provide concise explanations of legal concepts and processes which will be entirely new to people� this intensively develops their interview skills, practical legal knowledge and understanding of client care – in particular, learning to be non-judgmental and nondiscriminatory towards clients and their problems, and providing the best possible service within the time-constraints of a busy drop-in service� the table below compares the two models� although it is convenient to describe them in 3 derived from an original manual authored by the law clinic staff at sheffield hallam university in 1999; revised by the college of law in 2006� lawworks sample law clinic handbook 2006 <http://www�lawworks�org�uk/ index�php?cid=163&ctype=document> accessed 25 august 2012� 4 ibid p7� 5 brayne, duncan and grimes, clinical legal education: active learning in your law school (blackstone, 1998) pp35-36� 385 opposition, there is clearly a lot of scope for picking and mixing elements of both models – for example, it would be easy to design a clinic that used the drop-in core service as filter through which it referred on to any number of satellite clinical projects (which could include ‘letters of advice’ in particular practice areas where appropriate expertise existed)� letters of advice model drop-in model enquiries are filtered for suitability and no filtering whatsoever educational benefit clinics can struggle to find suitable clients6 there is generally no shortage of clients advice in writing only face-to-face advice at least 3 weeks from client’s first contact legal advice is instantaneous until the letter of advice tends to function separately from the local deeply embedded in the local legal advice legal advice network network students are forewarned about the nature no forewarning or research prior to meeting of the enquiry and research it in advance the client – students are plunged into schön’s ‘swamp’ no requirement for premises on the requires premises suitable for public drop-in public highway easy to restrict enquiries based on difficult to restrict enquiries because of available staff expertise the open door policy – supervisors need to have a good basic working knowledge of social welfare law at generalist advice level or above can proceed to casework and representation can proceed to casework and representation levels of advice in order to describe the drop-in model, it will help to explain the generally accepted hierarchy of legal advice provision for social welfare matters� the lowest level of advice is basic information� typically, this will involve giving a client a leaflet or a factsheet, or in some other way taking them through standardised information which is not tailored to them as an individual� anyone living in the uk can access that advice by going to the citizens advice bureaux website, where they maintain a publicly available online resource called adviceguide�7 if a client visits a cab in the uk, they will typically get a 10 minute triage appointment with a “gateway assessor” who will see if they can resolve the enquiry at the level of basic information� 6 bleasdale-hill (2011 – n1) confirms that written advice clinics can be “desperate for clients” and available interview slots are unfilled (p11)� 7 www�adviceguide�org�uk running drop-in advice services in a university setting 386 international journal of clinical legal education issue 19 the next level of advice is generalist advice� this is much more sophisticated than basic information� the adviser is now dealing with the client as an individual, tailoring advice to their particular circumstances� it will be based on advice resources that the general public does not have direct access to – principally, advisernet which is a vast subscription-only resource maintained by cab,8 and supplemented by various weighty practitioners handbooks on welfare benefits and other matters�9 this is the second-tier of service at cabx in the uk� if the 10 minute “gateway assessor” appointment cannot resolve the enquiry, then the client will go through to a full generalist advice appointment, typically one hour long� this could be a one-off appointment, or there could also be casework at that level – for example, complex debt management where a client needs ongoing help (depending on what funding the particular bureau has)� generalist advice is a massively complex area, which will cover all social welfare matters prior to legal proceedings� the cab traditionally divides generalist advice into seven areas: benefits and tax credits, consumer goods and services, debt, employment, family, housing, and immigration� generally it takes about 8-12 months to train as a cab generalist adviser – i�e� before an adviser would interview and advise clients on their own, under the supervision of an advice session supervisor� in the drop-in clinic model we employ much more intensive supervision than the cabx in order that student volunteers give generalist advice to clients from day one� the next level up in the hierarchy is specialist legal advice for people involved in (or in contemplation of) legal proceedings, provided by solicitors or some other substitute services – for example, a client might obtain advocacy services at tribunal level from the free representation unit for employment or social security tribunals� in the drop-in clinic model, specialist legal advice is provided at the appointment-based evening sessions where students shadow volunteer solicitors and assist them by drafting the attendance note� the drop-in clinic is a face-to-face generalist advice service, onto which can be added practice areas of appointment-based specialist advice depending on what links develop with local law firms� the drop-in service in our first year of operation, we ran two 3-hour daytime drop-in sessions each week (in the academic year 2012-13, we added a third drop-in session)� our publicity material said that we would: • provide basic information on any topic; • give generalist advice on any area of social welfare law in one-off one-hour appointments (except immigration, because we are not a registered immigration provider); • signpost and refer to appropriate local advice agencies and legal services; and • refer to the clinic’s own evening appointment-based specialist advice sessions. 8 it is issued on cd-rom in monthly updates� the annual subscription charge for voluntary organisations is currently £539 + vat: http://www�citizensadvice�org�uk/index/adviser_resources/advisernet�htm 9 in relation to welfare benefits, child poverty action group provides the finest hard-copy resources and training events� their welfare benefits and tax credits handbook (updated annually) is essential: http://www�cpag�org� uk/welfarerights� disability rights uk (formerly disability alliance) produces superior resources on disability benefits, especially the beautifully readable disability rights handbook (updated annually): http://www� disabilityrightsuk�org� 387 the daytime drop-in sessions worked as follows: • one student acted as receptionist, taking initial details on a pro forma (the students rotated reception duties each week)� • four other students worked in two teams of two. each team had a dedicated supervisor. • the supervisor and students collected a client from reception and took them to an interview room� • we took initial instructions – that is, we got the client talking and found out what the problem was, gathered all the relevant information (using our standard questions booklet as a guide) and identified what the client wanted to achieve�10 • next the interview was paused briefly and the client waited while we returned to the base-room, researched the enquiry and formulated the advice� • then we returned to the interview room and gave the client the appropriate information and advice� • finally, we wrote up a succinct advice note once the client had left. we had a maximum one-hour time-limit to complete that whole process, so in practice we advised approximately six clients in each 3-hour drop-in session� we opened with two weekly daytime drop-in sessions providing generalist legal advice, and one weekly evening 3-hour appointment-based session for specialist legal advice in family and housing law provided by volunteer solicitors from local law firms philcox gray and wainwright cummins� subsequently, we added evening appointments in employment law, long leaseholder matters and personal injury, with volunteer solicitors from anthony gold and russell-cooke� by the end of the year, we generally had two volunteer solicitors working each evening session, with one student shadowing each of them� the students would arrive 15 minutes before the appointment time and familiarise themselves with the drop-in case records� they shadowed the volunteer solicitor as they gave specialist advice� they took a careful note and wrote up an attendance note, which the volunteer solicitor checked and signed off� we told clients that the evening appointments were one-off advice sessions, and that we did not offer casework or representation ourselves (however there is no reason at all why a clinic could not do this if it has the expertise and capacity)� in most cases, this one-off session was sufficient to resolve the enquiry (in the sense that the client had no immediate need of further legal advice)� in other cases: • we invited clients to return to the clinic as the matter developed and we could offer further help – and we had a small number of clients who visited us a number of times as the same matter unfolded� • we assisted the client with finding legal representation by signposting or referring them to local solicitors� • the client was taken on by the volunteer solicitors as a client of their firm (so long as it was made clear to the client that they had complete freedom of choice in respect of instructing a solicitor); 10 students initially observe the supervisor taking instructions and giving advice, until they progress to doing this themselves – see ‘student progression and retention’ below� running drop-in advice services in a university setting 388 international journal of clinical legal education issue 19 outputs in our first year between september 2011 and may 2012 we were open for 27 weeks and conducted 192 face-to-face client interviews� the vast majority of our clinic enquiries fell into the standard social welfare law categories (figure 1)� figure 1 0 10 20 30 40 50 60 debt benefits & tax credits employment housing immigration consumer family other 8 14 17 52 14 5 21 31 enquiry type at daytime drop-in c ou n t 389 figure 2 illustrates the outcome of enquiries at the daytime drop-in sessions� the vast majority (62%) were resolved at the level of generalist advice in the sense that the client was now able to take action and had no immediate need for further legal advice (though they might return to us or another service at a later stage, when there had been some further development)� another very substantial portion (25%) were referred to our own specialist advice evening sessions� only a very small portion of enquiries (9%) were given basic information and signposted on; in practice, that was all immigration enquiries and a small number of commercial cases that were outside our expertise the overwhelming majority were handled internally in our daytime or evening sessions� these statistics show that we ran a very busy and effective clinic, with the majority of drop-in enquiries being resolved at the level of generalist advice� the high resolution figure is important because it means that we are providing a genuinely useful service for the public, which in turn means that our students get a real sense of satisfaction and completion from the work� figure 2 389 running drop-in advice services in a university setting 25% 3% 9% 1% 62% outcome at daytime drop-in sessions client advised and taking action basic information & signposted to agency advice & referral to agency advice & referral to external solicitors advice & referral to specialist evening sesssion 390 international journal of clinical legal education issue 19 for our first 2011-12 session, we recruited 20 student volunteers� we selected applicants by way of application form and short interview� all law students were invited to apply; however we recruited towards the end of semester 2 to begin the following year, so in practice all our volunteers would be in at least their second year of study before they started their placement� we required a minimum of sixteen 3-hour sessions in order to deem a volunteer placement fulfilled� upon completion of the placement, we provided a certificate of clinical legal education placement and permitted the students to use the clinic directors as referees on any job or training applications they made� we promised them a detailed reference based on their work in the clinic� we gave our student volunteers two days initial training in the week prior to week 1 of the semester� this was jointly delivered by us and local citizens advice bureau staff and covered general matters such as working with clients, interview skills, using information resources, our policies and procedures, and how to refer and signpost to the local community advice network� all the rest of our training (i�e� all the substantive law) was delivered on-the-job� this is very different to how the cabx trains and works� a cab generalist adviser training is much more front-loaded – there will typically be many weeks of training sessions about the substantive law before an adviser ever goes near a client, but once trained an adviser works under arms-length supervision� one cab advice session supervisor will supervise multiple generalist advisers working individually (figure 3)� figure 3: cabx supervision we chose to run our project on a much more modelling and experiential learning basis – partly from choice and wanting to ensure the project had educational benefit (rather than simply being pro bono work) and partly because we had no scope to timetable a longer initial training� our students work in teams of two with a dedicated supervisor� this means we are committed to a very high staff/student ratio, and there are no economies of scale in our model – if we want to add another student team then we need to add another supervisor� supervisor generalist adviser generalist adviser generalist adviser generalist adviser 391 figure 4: drop-in clinic supervision by joining the lawworks group of clinical legal education projects, our student volunteers also had access to the comprehensive programme of lawworks training sessions�11 this programme cycles through a wide range of social welfare matters and advice skills every semester� the sessions are principally intended for volunteer solicitors working in clinical projects and they are delivered at a fairly high level� we encouraged our students to attend as many sessions as possible, or listen to the accompanying podcasts available online� generally students found that they got more out of the training sessions once they had a certain level of experience in the clinic� student progression and retention for our 2011-12 session, we recruited 20 volunteers� with hindsight, we under-recruited� two volunteers dropped out over the summer for personal reasons and did not attend the initial training� two volunteer placements were terminated at the start of semester 2 – one at the student’s own request and one for persistent unreliability� three further students reluctantly withdrew from the project for personal reasons� we still managed to run the clinic very successfully, and never had to close the clinic due to low student numbers� however, for the 2012-13 session we recruited substantially more students to give sufficient allowance for terminated placements and withdrawals� at the start of a student’s placement, the supervisor modelled every stage of the 4-part process: • taking initial instructions; • researching the answer; • feeding the advice back to the client; and • writing up the case record. but we very quickly moved on to collaborating with the students in the process� almost immediately, we required them to do the research and write up the note (with less and less guidance as their placement progressed)� next we encouraged them to feed the advice back to the client when we went back into the room� finally, we invited them to take initial instructions from the client� 11 http://www�lawworks�org�uk/� running drop-in advice services in a university setting supervisor student student in our 2011-12 session, all our students learnt to research real-life legal issues and write professional quality case notes� their writing skills – their ability to identify what elements were legally relevant, and to present that information clearly, precisely and concisely – improved tremendously� 85% of students progressed to giving face-to-face advice to clients – that is, once instructions had been taken, and the legal research was done, they formulated the oral advice and delivered that in a clear, systematic manner that was appropriate for the individual client� 69% progressed to taking initial client instructions, which we consider the most challenging stage of the advice process – going into the room without any forewarning, making sense of the client’s story and asking all the relevant follow-up questions� given that it takes about 8-12 months to train as a cab generalist adviser, and we only have our students for 16 sessions (which equates to 48 hours) we are very pleased with that progression rate; although we are providing a very high level of on-the-job supervision – much more than a cab is able to do� originally, we hoped to retain our experienced volunteers into the following year and pair them up with new recruits so that we were not beginning from square one and training up all the students from scratch every year� however, in practice this was impossible to arrange� our university managers wanted to see as many new students benefiting from the project (rather than existing students taking up volunteer places in the following year)� in any event, the student teaching timetables gave little scope to pair up students from different years in the same clinic session� other institutions may not be restricted in this way, and may be able to utilise experienced student volunteers to supplement direct supervision by staff� at the end of the year, student volunteers completed a two-page feedback form� overall, their feedback was excellent� 92% of students said their practical legal skills were very much improved from taking part in the clinic� 92% of students rated the clinic placement as very good or excellent overall� we were inclined to regard a successful placement as a student who progressed all the way through to taking initial instructions, but judging from the student feedback it was not necessary for a student to do that in order to rate the project highly� two students who did not manage to progress to feeding back advice or to taking instructions, both said their practical legal skills were very much improved, and rated the placement as excellent� even on its own the researching, writing up, and shadowing the drop-in service and the specialist evening sessions was very worthwhile for them� staff, premises & insurance our drop-in clinic is currently an extra-curricular clinical legal education project� our two clinic directors are both lecturers in law and practising solicitors� very significantly, both the clinic directors also have extensive experience of delivering generalist advice drop-in services� approximately half their standard teaching allocation is given over to clinic supervision – so together this is approximate to one full-time member of staff (there is no additional administrative support)� in our first year, we received generous donations from russell-cooke and anthony gold solicitors� however, it is likely that we will need to embed the clinic to some extent to ensure its long-term financial viability and we are still considering the best way of doing so� the london south bank university main site is located very close to elephant & castle, a major transport hub in the london borough of southwark� it is located on the south side of the thames and bordered by lambeth and lewisham, with the city of london and tower hamlets north of international journal of clinical legal education issue 19 392 the river� tate modern, the royal festival hall, the globe theatre and borough food market are nearby� however, southwark was ranked the 17th most deprived area out of 354 local authorities and districts in the indices of multiple deprivation 2004 based on an overall aggregated measure of deprivation (income, employment, health, education skills, crime etc)� the clinic premises are part of the campus but on the high street – with a large street-level disabled-access reception area, two interview rooms, a lockable back office and a base-room teaching space� it was very evident to us that there was a huge amount of unmet local need for legal advice in social welfare matters� early on in developing our clinic project we made a site visit to peckham cab and saw 60 people queuing when the doors opened at 10 am and another 30 who arrived before the session ended� if you are considering developing a drop-in clinic and you are unsure about the needs of your local community, then start by contacting your local cab and law centres� they will be able to give you a clear idea of the nature of the enquiries they deal with, and whether there is unmet need in your area� it is very likely that there will be, even if it is not on your doorstep� if you are a campus-based university, think about a town-based outreach� despite being located at a major south east london transport hub where the local cab will regularly have 60 people queuing outside, we still had to do a substantial amount of local publicity in the first few weeks to get started: • we sent out over 3,000 leaflets to every advice agency, library, gp surgery, and anywhere else that we thought might have potential clients� • we got our service listed in every online directory that we could find. • we networked extensively with local services. • we put a huge banner on the front of our building. • we drafted press stories for local free papers and websites. after that we seemed to reach critical mass, and when we reopened after the christmas vacation, we had clients queuing up to be seen from day one� lydia bleasdale-hill’s recent excellent survey of clinical legal education projects also makes a number of suggestions about ways to publicise an advice service�12 with regard to security, every cab in the country runs an open-door public drop-in without any security whatsoever� we have a general security team on campus but none in the clinic building itself� in 192 face-to-face interviews in the clinic, we have only had one client whose conduct required us to call the general university security and he left once security arrived� it is certainly very challenging to have to deal with situation like that while being observed by students looking to you to model best practice, but handle it well and debrief it properly and that becomes a very powerful learning experience� we would only stress that you should have a precise understanding of exactly what powers your security staff have (i�e� can they lay on hands and physically remove someone from the premises, or do you need the police in order to do that)� we recommend that, prior to opening your doors, you meet with your security team to discuss their powers and the most effective way of contacting them urgently, and whether you should call the police at the same time� however, it is important not to allow very occasional difficult clients to have a disproportionate impact – people tend to remember the extremes and recall the one client who 12 see n2� 393 running drop-in advice services in a university setting kicked off in reception rather than the 191 that did not� the prospect of difficult clients should not put anyone off running a drop-in service� the overwhelming majority of our clients are extremely satisfied and effusive in their thanks and that gives students a powerful sense of their capabilities� our clinic is covered by our general university insurance� if you are considering opening a project and your institution insists that you obtain separate professional indemnity insurance then you can do this easily and inexpensively� lawworks particularly recommends adviceuk who are familiar with law clinic work�13 drop-in clinic operational manual in july 2011, we obtained a higher education academy teaching development grant to produce teaching and learning resources for a drop-in model of clinical legal education� our free 73-page drop-in clinic operational manual was officially launched at lsbu’s ‘clinical legal education form and funding’ conference on friday 15 february 2013, at which we and other institutions running innovative clinical projects shared their work with over 100 academics, practitioners and students� the manual can be downloaded from the lsbu website (http://www�lsbu�ac�uk/ahs/ downloads/law/lsbu-drop-in-clinic-manual-v1) and links to all the conference materials are available on the hea social sciences blog (http://blogs�heacademy�ac�uk/social-sciences/2013/02/22/clinicallegal-education-form-and-funding/)� 13 http://www�adviceuk�org�uk/supporting-you� 394 international journal of clinical legal education issue 19 394 through a glass darkly: assessment of a real client, compulsory clinic in an undergraduate law programme. cath sylvester1 northumbria university, uk at northumbria law school the real client clinic (the student law office) is an integrated capstone experience in the four year masters in law course. the programme’s integrated approach with assessed clinic, was introduced in 1992 and drew on the teaching hospital model in medical education where no distinction is made between education and training. the programme was designed to meet the requirements of the quality assurance framework for uk undergraduate programmes, the professional body requirements for subject knowledge2 and the procedural and legal skills knowledge required by the vocational legal practice course 3 . students acquired an academic qualification and met the competence standards required for day one of a training contract. at the time it was unique, in 1996 the aclec 4 report referred to the northumbria model as “allowing for progressive learning of analytical skills and conceptual understanding of both 1 cath sylvester is principal lecturer in law at northumbria and leads on programme design. 2 the requirements for the qualifying law degree were set out in the joint statement on the academic stage of training, 2002 3 the legal practice course is the vocational course required by the solicitor’s regulatory authority for those wishing to qualify as a solicitor in england and wales 4aclec first report of legal education and training 1996 para 2.2, lord chancellor’s advisory committee on legal education and conduct ( special issue problematising assessment in clinical legal education ) ( 32 ) substantive law and procedure, and the acquisition of basic professional skills and values.” however, the academic/vocational divide has persisted and whilst the model has been replicated it has not proliferated. in the recent letr review5 it was identified as one of the examples of ‘considerable flexibility‘ in the system of legal education and training. there are many reasons that law schools may not wish or be able to deliver a similar model and as part of the flexibility agenda no one would want uniformity. however one of the prevailing misconceptions of the integrated approach is that it is only relevant for those wishing to become lawyers and therefore by implication the skills required to become a lawyer are in conflict or detract from the skills acquired as part of the academic study of law. as bradney6 succinctly states “being a lawyer is not the same as studying law and being a lawyer is what only a minority of law students will be”. taking this to its logical conclusion van der vleuten’s longitudinal utility model for assessment of medical training would appear to have limited relevance in the non-vocational law degree where the mastery of the subject is evidenced by traditional undergraduate methods. nevertheless few students would consider an undergraduate programme that did not equip them with anything other than core discipline knowledge and the ability 5j. webb, j. ching, p. maharg and a. sherr, setting standards: the future of legal services education and training regulation in england and wales (london, legal education and training review, 2013) (letr report). available at: http://letr.org.uk/the-report/index.html. 6 anthony bradney sptl ( society of public law teachers) reporter 21, winter 2000 ( n o r t humb r i a d eg r ee i s d e s i g n e d to m eet t h e ex i s t i n g p r o f e s s i o n al b o d y r eq u i r e m e n ts i ts c e n t r al e p i s te m o l ogy i s t h at b y e m b e d d i n g p r o p o s i t i o n al )to study law as a useful investment. in the light of the year on year increase in numbers of students studying law as a discipline 7 there would seem to be a perception that the range of intellectual and other skills developed by the study of law are worth having as useful preparation for employment. whilst the knowledge 8 in a practice orientated setting, students would develop more sophisticated skills for using their knowledge. broudy adopted a four stage model of knowledge use; replication, application, interpretation and association. students using their knowledge in the clinical setting or other enquiry based exercise are required to go beyond application of knowledge and to interpret their knowledge so that it can be applied in a different factual settings9. as eraut identifies when discussing professional expertise “the process of using knowledge transforms that knowledge so that it is no longer the same knowledge”10. the qaa subject benchmark for undergraduate law programmes in england and wales has recently been substantially revised and marks a significant move away from predominantly prescribing discipline knowledge towards a broader use of skills approach. it states “we have made considerable changes to the structure of the 7 the law society entry trend records show that in 2012, 32,345 students applied to study law at university in the uk, of these 20,070 accepted places. 8 m.eraut, developing professional knowledge and competence (london, falmer press, 1994), p103. eraut uses the term propositional knowledge to describe discipline based theories and concepts and practical principles in the applied field. 9 h.s. broudy, personal communication (1980) as referred to by eraut (supra n7) p26 10 eraut, supra n7, p 25 statement. we have done so to reflect the panel’s view that a law graduate is far more than a sum of their knowledge and understanding and is a well skilled graduate with considerable transferable generic and subject–specific knowledge, skills and attributes” 11. the benchmark specifies generic skills linked to broader professional expertise for example “self-management, including the ability to reflect on their own learning, make use of feedback. a willingness to acknowledge and correct errors and an ability to work collaboratively”. this approach is mirrored by the growing use of generic graduate attributes in some universities. such attributes are incorporated into programme outcomes for all undergraduate programmes offered by the university12. at the other end of the training process the sra has recently revised its competency statement for solicitors 13 and has adopted an approach of focussing on “the activities that all solicitors need to be able to do competently, rather than describing the attributes that solicitors require in order to be competent”. it sets out four domains of solicitors’ competence; ethics, professionalism and judgement, technical legal practice, managing themselves and their own work, working with other people. as the language of professional competency and academic programme aims and objectives come closer together and our module, year and programme outcomes and 11 the quality assurance agency for higher education, subject benchmark statement, law, july 2015 section 2 available from www.qaa.ac.uk. 12 northumbria university graduate attributes, 2015 13 solicitors regulation authority, training for tomorrow: a competence statement for solicitors. 20.10.14. graduate attributes start to sound very like some of the professional body competencies it is a good time to review assessment and its place in the law curriculum as a whole and to consider how we can effectively assess these attributes, align them to the objectives and measure them. currently the majority of undergraduate law provision has its emphasis on measuring the student’s ability by subject matter or skills area rather than their reliability as competent practitioners14. adopting the language of competency does not, on its own, ensure programme design and assessment to deliver competency. eraut refers to the assessment of competency as requiring a change in emphasis; instead of making ‘separate judgements about each piece of evidence; judgements of competence have to rest on separate decisions about each element of competence, taking into account all relevant sources of evidence. thus assessment criteria “belong to the elements of competence not to the pieces of evidence”15. this echoes van der vleuten’s longitudinal approach to assessment which should theoretically fit well with the constructively aligned curriculum through which competencies can be tracked at different levels. for example in year three of the northumbria programme, students’ interviewing skills are assessed using a standardised client process, in the year four clinic interviewing is assessed in a real client setting however each of these individual assessments are lost in the overall degree 14d. newble, b. jolly and r.e. wakeford, the certification and rectification of doctors. issues in the assessment of clinical competence.(cambridge, cambridge university press, 1994) 15 eraut, supra n7, p 207 classification which remains the primary concern for students, employers and universities. nevertheless, on a module level, the embedded clinical programme in the curriculum has the potential to assess the development of professional competency and use of knowledge skills and offer an alternative to the measurement approach. by taking assessment seriously in clinic and being able to articulate and justify our approach and grading process we achieve a number of very significant benefits. these include providing a measure of competence which informs students of their strengths and weaknesses as they progress through the clinical module. it also provides a more nuanced and authentic reflection of students’ achievements for external purposes as well as building up a level of expertise amongst assessors in the assessment of broad based professional competence rather than the components of competence. the use of a range of more innovative methods of assessment in clinic adds depth to the range of largely traditional assessment methods elsewhere in the curriculum and the intense scrutiny of clinical work lends itself very well to repeat sampling which impacts on the reliability of clinical marks. clinic is a constructivist teaching methodology – it can deliver discipline and procedural legal knowledge but more often its role is emphasised in terms of teaching legal and intellectual skills and as a method of inculcating professional values and ethics through its traditional involvement in social justice. in the slo we draw on the transformational qualities of the method and the impact of the real client on student learning. whilst the knowledge may be delivered in the classroom, the context of clinic is unique in that it uses a real client/ real emotions, has an unknown dynamic/ changing and evolving factual perspectives, has an unknown outcome/ uncertain content and is delivered through a distinctive working relationship with a supervisor. this is a powerful methodology and students will have variable experiences and construct their knowledge accordingly. standardising assessment in these circumstances takes it out of the clinical setting. eraut argues that the combination of using propositional knowledge and process knowledge (by which he means skills such as how to acquire information and deliberative processes such as planning or problem solving) constitutes professional knowledge “although knowledge may be included in the curriculum because somebody else has deemed it relevant to professional practice, it does not become part of professional knowledge unless and until it has been used for a professional purpose’’16. van der vleuten’s utility model 17 offers reassurance that we can assess what is unique about clinic without disassociating the assessment from the clinic or limiting assessment to specific tasks within clinic. in addition by assessing the real clinical process we require students to focus on developing these complex competencies. as biggs and 16 eraut, supra n7, p 119 17 c. van der vleuten, l w t schuwirth, assessing professional competence: from methods to programmes 2005, medical education 39 tang state “assessment is the senior partner in learning and teaching. get it wrong and the rest collapses.”18 one of the most complex tasks for clinical providers is that of deciding what learning outcomes will be assessed. this process has often been influenced by a desire to assess only outcomes that can be standardised. van der vleuten warns against the risk of atomisation of competencies which has the capacity to “trivialise content and threaten validity” 19 . with multiple sampling opportunities the constraints of standardisation are reduced. nevertheless the first step of the assessment design process in clinic is to ensure that the outcomes/competencies to be assessed are expressed in such a way as to embrace the range of experiences and to fit the type of clinical programme on offer. clinical programmes vary in length and content, students in an advice only, short optional clinic may experience only one client so the concept of sampling across a range of client contact experiences is not realistic. a recurring and legitimate question from students in the live client clinic is how can they be assessed fairly when every student in clinic has a different experience? can we be sure that the student who has a difficult, demanding and disorganised client is assessed on interviewing skills in the same way as the student who has the organised, articulate and accepting client? to some extent these issues can be addressed by carefully worded outcomes. there is a need to share and develop the language of competencies and outcomes in the clinical setting. in the 18 john biggs and catherine tang, teaching for quality learning at university, 4th edition, society for research into higher education and open university press, 2011 19 van der vleuten, supra n16 uk the time is ripe for this with the sra recent statement of solicitor competency and the qaa guidance on levels providing a frame for this discussion. at northumbria the clinical module is the largest credit bearing module in year four. seventy per cent of the clinic mark is attributed to the practical work in clinic and the remaining thirty per cent to two pieces of reflective writing. the practical work is assessed with reference to a set of criteria, each one being described at a range of levels which equate with degree classification. the criteria are evidenced by the collection of the students’ clinical work in a portfolio which is marked by the supervisor and moderated by other members of the team. the criteria for the practical work are not treated as distinct components of the assessment and include professional attributes, intellectual qualities as well as the more predictable tasks associated with work in the clinic such as client interviewing and advising. the student’s portfolio submission is not structured by criteria or competencies and its content is not prescribed. supervisors will have given feedback on students’ work through the year but draw on it to remind themselves of the entirety of the student’s work and are asked to indicate broad grade bandings for each of the criteria by way of explaining their grade and also to focus their minds on the specified elements that make up the assessment for the practical work. this is not a mathematical formula and by necessity expert judgement is called for. applying the validity element of the utility index to this approach concerns may arise over the way the assessment criteria are broken down and then reconstituted into a single mark for ‘practical work’ by the supervisor at the end of the module. in some ways this is a longitudinal approach drawing on the full range of the student’s clinical experience. however, there is no formal process of measuring the various outcomes during the programme. there is a risk that the balancing act carried out by the supervisor is not transparent and when applied to broadly worded assessment criteria lends itself to a middle ground approach. the risk is that students will interpret this for themselves and do only what is needed to achieve what they require. a non-aligned assessment regime has capacity to undermine the effectiveness of the method. driessen and van der vleuten described this tussle effectively when discussing the use of examinations in a problem based learning law programme: “as usual the assessment programme gained the upper hand and slowly but progressively undermined the problem based learning approach”20. viewed through the lens of van der vleuten’s utility index there may also be an issue with reliability. the students are learning by doing and as a consequence their learning will be in response to what they are doing and will be varied both in the nature of the task and its complexity. in addition their work is supervised by a single clinical supervisor. van der vleuten’s evidence that reliability is predominantly a consequence of adequate sampling is of great significance in the clinical setting. it is inevitable that real casework will require every aspect of practice in clinic to be supervised by a qualified practitioner. whilst these supervision processes may not 20e. driessen & c. van der vleuten, matching student assessment to problem-based learning: lessons from experience in a law faculty, studies in continuing education, 22:2, 235-248 take the form of a summative element of assessment, students receive extensive feedback on their efforts. in many settings the prospect of multiple sampling is a stumbling block from the cost effective aspect of the index. in northumbria’s year long in house clinic this level of scrutiny is already in place and with some careful consideration can easily be adapted to provide multiple points of sampling without turning every task into an assessment point. at northumbria students receive a midyear appraisal and are assessed on certain discrete skills for lpc21 purposes. in addition feedback rubrics/guidance may be developed which tie into discreet slo outcomes. what may be lacking in terms of sampling practice is a range of different types of assessment and different assessors. multiple small conversations take place between supervisor and clinic students on a daily basis about strategies on cases and how to respond to developments; it is a short step to use these in a more strategic way. whilst oral assessment and presentations are used in the law curriculum in a variety of formats, clinic provides a wealth of opportunity for developing more practice orientated versions, informed by the experience of other work based assessments. by developing a range of assessments and a community of experienced assessors, clinic has the potential to offer new insights into assessment methodology in the wider law curriculum. 21 the legal practice course currently requires students to pass assessments on specific legal skills including client interviewing and legal writing. these are assessed on a competent / non competent basis. in one significant respect the sampling evidence relating to reliability of a discrete slo module may require significant change in assessment; amsterdam22 argues that the relationship between student and supervisor is a key requirement of the clinical method. typically the supervisor takes primary responsibility for assessment of their supervisees. whilst the normal checks are in place for consistency through the moderation and external examiner’s review of marks, these are hard to achieve effectively on the review of the portfolio alone. one of the ways repeat sampling improves reliability is as a result of the involvement of multiple assessors. the in house clinic is not the same as a teaching hospital where students will learn from many different experts as they rotate through different specialisms. typically the slo supervisor works on a mainly one to one basis with a small group of students throughout the entire clinical programme. this is to facilitate learning, particularly through the process of reflection and feedback, but also as a practical measure to enable supervisors to easily monitor cases within their specialism. however, there are benefits in involving other supervisors both for students and for clinic. the clinical methodology should be the constant here not the practice of the supervisor. facilitating other supervisor involvement may result in students benefitting from a range of practice as well as further developing core principles of approach in both clinical method and assessment. to some extent the expert judgement approach to assessment of the practical work at northumbria is counter-balanced by the assessment of the two reflective reports 22 a. amsterdam, clinical legal education – a 21st century perspective, 34 j. legal education 612, 1984 submitted at the end of the module. the compulsory report is on skills in practice and the other can be selected from a range of optional subject areas including clinic and my career, clinic and legal education, justice and ethics, clinic and public discourse and law in action. within these broad areas students can select any subject matter for discussion although there is an expectation that it relates to some experience they have had through clinic. reflection is an integral part of clinic. eraut includes it in his definition of experiential learning: “experience is initially apprehended at the level of impression, thus requiring a further period of reflective thinking before it is either assimilated into existing schemes of experience or induces those schemes to change”23. students are provided with reading lists and lectures on the theory of reflection during the course of the module, they will undertake preparatory exercises in firm meetings and the content of the firm meeting itself will frequently focus on reflection although not necessarily categorised as such. a practice reflective piece is submitted as part of the mid year appraisal process and students are encouraged to keep short reflective records on all they do in the slo and are provided with a journal for this purpose (this is not part of the assessment). nevertheless students are resistant to the assessment on reflection. as one of our students reflected, “reflective practice is and should be personal; what is valuable reflection will be different for each individual. as such it is difficult to understand how a mark can have any significant meaning and how marking reflection can aid the learning process. ” 23 eraut, supra n7, p107 ledvinka states that the purpose of assessing reflection is to ‘assess the learning journey’24. moon refers to reflective practice as a form of ‘mental processing’25 or as race puts it a way of making “sense of what we’ve learned” and to “link one increment of learning to the wider perspective of learning heading towards seeing the bigger picture”26. it is also a process for learning which is central to continuing professional development. whilst the student above cannot see beyond the content of reflective reports being right or wrong the purpose of assessing reflection is to communicate the value of the ongoing process of assimilating new learning and to instil it as a lifelong approach to learning. the ‘one off/ end of year’ nature of the reflective report would appear to conflict with the utility approach primarily in terms of reliability which is increased with the additional number of samples but also on the grounds of validity, the current assessment is more likely to assess a snapshot of reflection than evidence of a reflective practice. whilst we might be able to assess the degree to which the student sees the links to the bigger picture it is considerably harder to draw from these isolated examples of reflection an approach to mental processing in line with the learning cycle.27 the process of reflection does not always occur through a written process – a more authentic place for reflection might be as part of an assessed interview or presentation around a case. within clinic we can introduce reflection as a routine part of the clinical process, a sort of think 24 g. ledvinka, reflection and assessment in clinical legal education: do you see what i see? 9 int'l j. clinical legal educ. 29 2006 25 j. moon, reflection in higher education learning, pdp working paper 4, ltsn (2001) 26 p. race, evidencing reflection: putting the "w" into reflection, escalate learning exchange (2002) 27 d. kolb, experiential learning; experience as the source of learning and development. englewood cliffs, nj: prentice hall (1984) aloud commentary on the dilemmas faced when encountering day to day slo work. we may also consider assessing reflective work at other points in the curriculum. at northumbria we have a number of modules delivered in a problem based learning format which use reflection but only one of which currently assesses it on a pass/fail basis. the problems surrounding the assessment of clinical work have to some extent been aggravated by the difference in approaches between assessment of academic work (essays, coursework, dissertations meeting grade descriptors) and of assessment of skills (portfolios and competencies). it is not surprising that clinical modules delivered within an undergraduate programme have struggled to find appropriate assessment methodologies. in many cases clinic has remained outside the curriculum entirely, open to self-selecting students and as a methodology that generally engages students without the need for the motivating factor of an assessment process, and some argue that this is where clinic should remain. however, for the reasons explained above clinic has a lot to contribute to the changing regime of legal and professional undergraduate education. van der vleuten urges us to look at the value of the assessment method outside of traditional academic assessment boundaries and focus on their reliability, validity and educational impact. in one significant respect clinic lends itself to a range and number of assessment methods in that the level of scrutiny and feedback on the students’ clinical work is so extensive that formative assessment is taking place on a task by task basis. with some consideration and imagination assessment points can be incorporated into the year to address the full range of criteria and to reinforce the learning delivered as part of the case work. in addition processes can be designed to ensure consistency when marking portfolios28. it is not a major departure from the normal day to day work of the clinic to utilise oral presentations or feedback on letters and research reports in a way that feeds in to the students’ grades in a more transparent way. we have only just started to explore the assessment toolbox and each clinical programme will have its own aims and limitations but we can start to draw on this widening pool of experience. whilst the utility index does not introduce us to new concepts it might give us confidence to use a range of assessment activities in a combination which is designed to support learning as well as to measure it. 28 e. driessen, c. van der vleuten, l. schuwirth, j. van tartwijk and j. vermunt (2005) the use of qualitative research criteria for portfolio assessment as an alternative to reliability evaluation: a case study, medical education 39 (2) 214-220 615 assessing law clinic – the use of digital patch text assessment as an alternative to traditional portfolios karen clubb 616 international journal of clinical legal education issue 20 introduction the paper presents the use of ‘patch text assessment’ as an innovative assessment method being ‘a series of integrated patch text assessments which are ‘stitched’ together with a final ‘patch’ to form a complete coherent piece of work. each patch adds to the overall assessment.’1 the use of patch text assessment is presented within the context of a year long research project which aimed to assess the use of digital media to enhance the use of patch text assessment within a law clinic module in uk law school. this paper presents a brief outline of the context of clinical legal education in relation to its application within the derby law clinic module, outlining the current influences within the field of higher education that guide the assessment process and context. the paper then briefly defines ‘traditional’ portfolios and the concept of patch text assessment before considering these each in turn more fully in relation to their advantages and disadvantages in terms of assessment strategy. the paper then progresses to outline the objectives of the research project and the methodology applied to achieve these. this is followed by an analysis of the project findings to conclude as to the effectiveness of digital media to enhance the use of patch text assessment and any benefits derived from this approach in comparison with ‘traditional’ portfolios for assessment. the derby clinic experience the value of clinical legal education (cle) is evident in the number of law schools that now seek to make provision for student engagement in law clinics, and the research published to date as to the benefits of cle as a pedagogic approach. the type and form of cle varies, some institutions offer this purely as a non-credit bearing learning opportunity. other law schools, such as derby integrate this into a credit bearing module as an assessed component of the undergraduate law curriculum. derby has for many years worked in partnership with local community legal service providers following a ‘placement style’ clinic model. students are required to commit to a minimum number of hours, working within these community services alongside qualified solicitors and advice workers. the experiential model of learning offers a common rationale to all clinic provision, whatever the form. it offers students an insight into the law in practice and the ethical and professional context in which this is situated through their own participation in the provision of legal services. cle affords students the opportunity to develop specific legal skills in a more meaningful way, learning from the context in which the practice of the skill is situated, enhancing their overall student learning experience and their employability. academic discourse and research have to date focused on the value of cle as a pedagogic methodology and its capacity to allow students to ‘experience and observe’ from ‘exposure to law in practice’2 some institutions have phased this experiential dimension of clinical legal education to align with the stages of undergraduate academic progression.3 others have captured the benefits 1 clubb k., ‘the use of patch text assessment in the derby law clinic’ 2011. poster presentation university of derby learning teaching and assessment conference july 2011 2 stuckey, roy, teaching with purpose: defining and achieving desired outcomes in clinical law courses (2006-7) 13 clinical l. rev. 807-838 3 hall j., kerrigan k., ‘clinic and the wider law curriculum’ learning in law 2010 available at http://www.ukcle.ac.uk 617 of experiential learning within developmental models of practice to further the attainment of professional competencies4. there has however been less consideration devoted to the design of assessment of this experience and the challenges this presents for both staff and students. the benefits acquired from cle enhance student development and require careful assessment to capture the depth of the student experience and their skills development, mapped to curriculum benchmarks.5 assessment strategies within undergraduate programmes in the uk have to align with quality standards set by the uk quality assurance agency in the form of subject descriptors. the european commission have sponsored a similar initiative to identify generic subject specific competencies within the european higher education area, to support the bologna process of mutual recognition of higher education and professional qualifications within the european area. learning outcomes need to be carefully crafted to capture the richness of all that cle can offer, reflected in an assessment method designed to match this. not all undergraduate degree programmes, for example in the uk, require assessment of professional skills or practice per se, so there is no mandatory competency based assessment required. this is the case for most undergraduate law degrees in the uk which tend to be academic in focus. the current higher education context in the uk does however, require a consideration of how the degree programmes address the employability agenda. whilst this is not a pressing issue in all jurisdictions, a consideration of the employability context has merit, if only to ensure that the clinic experience offered continues to reflect professional practice, and in light of clarifying student career aspirations. in the uk the higher education academy (hea), an independent champion of standards of excellence in teaching and learning, provides subject guidance to assist in addressing the employability context in law recognising that ‘law is taught both as an academic subject and as a precursor to gaining a professional qualification’.6 this is common to many jurisdictions. it is also recognised that only ‘approximately 50 percent of law graduates go on to train, but not necessarily to qualify, as solicitors or barristers.’7 the use of cle is therefore valuable as an effective teaching methodology given its potential to enhance academic attainment in a relevant professional context. cle offers a ‘real world’ experience that is particularly relevant in addressing the employability agenda in providing a realistic insight into professional practice, enabling students to apply and develop their knowledge to seek solutions to ‘real’ legal problems, often in relation to areas of law not previously studied.8 in the uk the quality assurance agency that sets the quality standards for undergraduate education in the uk ,in the form of subject benchmarks which indicate the minimum requirement in terms of substantive areas and levels of assessment and performance required for the award of a law degree. higher education institutions offering undergraduate law degrees retain freedom 4 brooks s., ‘meeting the professional identity in legal through a relationship centred experiential curriculum’ education challenge 41 u. balt. l. rev. 395 2011-2012, 396 5 law subject benchmarks qaa 2007 <http://www.qaa.ac.uk/publications/informationandguidance/ documents/law07.pdf> accessed 2/05/2012 6 rees c., forbes p., kubler b., ‘student employability profiles: a guise for higher education practitioners’ hea, chie september 2006, 97,98 7 rees c., forbes p., kubler b., ‘student employability profiles: a guise for higher education practitioners’ hea, chie september 2006, 97,98 8 rees c., forbes p., kubler b., ‘student employability profiles: a guise for higher education practitioners’ hea, chie september 2006, 97,98 assessing law clinic – the use of digital patch text assessment as an alternative to traditional portfolios 618 international journal of clinical legal education issue 20 to ‘integrate assessment of key skills into performance on particular modules’ which may be ‘demonstrated by extra-curricular activities’ or by engagement in law clinics.9 the law subject bench marks allow the flexible integration of cle as a teaching methodology. in reality the model of cle adopted is more likely to be constrained by the staff skills mix and capacity for student supervision as well as the student demand, affecting the higher education institution’s ability to resource this. the potential benefit of participation in a law clinic, regardless of the model adopted would seem to afford the opportunity to assess most if not all of the subject benchmarks as well generic and transferable skills. the skills selected for assessment by a law clinic module are likely to be dependent upon the model adopted for the cle experience and the form of legal service within in which cle is situated, alongside the expected student role within this and degree of supervision afforded. learning outcomes will no doubt reflect the skill areas that the academic team assess as being capable of being developed by the engagement in the law clinic experience, matched by assessment methods which are capable of evidencing their attainment. there is no set formula for this and learning outcomes will be institutionally specific and sufficiently broad to capture evidence of attainment of as full a range of skills as possible. assessment methods – defining key terms law clinic offers the potential to assess a range of skills and knowledge, some generic and some legal, through assessed portfolios. portfolios are ‘simply a collection of self-selected student work. its primary purpose is to provide avehicle for students to reflect’.10 portfolios have been described as: ‘a purposeful collection of student work that exhibits the student’s efforts, progress and achievements. the collection must include student participation in selecting contents, the criteria for selection, the criteria for judging merit, and evidence of student self-reflection’11 the work students select for inclusion in the portfolio must be of sufficient quality to satisfy the relevant learning outcomes and include ‘those pieces that best reflect their learning.’12 portfolios are ‘a useful way of getting students used to writing reflectively, introducing them to the idea of providing evidence for their reflection.’13 portfolios have been described as having two dimensions, a positivist one where the ‘purpose of the portfolio is to assess learning outcomes and those outcomes are, generally, defined.’ here the portfolio acts as ‘a receptacle for examples of student work which are used to infer what and how 9 qaa law subject benchmarks 2007, 4.7 available at http://www.qaa.ac.uk/publications/informationandguidance/documents/law07.pdf 10 johansen s ‘what were you thinking?”: using annotated portfolios to improve student assessment’ (1998) 4 legal writing j. legal writing inst. 123, 135 11 pauleson f., pauleson p. meyer c ‘what makes a portfolio a portfolio?’ new directions for teaching and learning , 2008(74) 79-87 12 johansen s ‘what were you thinking?”: using annotated portfolios to improve student assessment’ (1998) 4 legal writing j. legal writing inst. 123, 136 13 hinett k ‘developing reflective practice in legal education’ ukcle 2002. 619 much learning has occurred.’14 additionally the constructivist dimension assists in going beyond merely recording learning but assisting the learning process. here portfolios capture and enhance ‘the learning environment in which the learner constructs meaning’ and facilitate the presentation of a record of the processes associated with learning itself. reflective portfolios have the advantage of potentially capturing both these dimensions. a different approach – innovative assessment and patch text assessment patch text assessment (pta) has been used in a number of different contexts but is common in the context of the education and training of teachers and the medical professions. it was developed as a tool to facilitate the development of the reflective process to assist reflective writing as a tool to further professional development and competence in professional practice. the capacity for reflection on professional practice is highly relevant to the vocational training of these professions, which necessitates a critical reflection on the professional role within the context of service delivery. pta has most commonly involved learners sharing and commenting upon each other’s work, incorporating both peer review and tutor review and feedback within the pta process. these rich sources of feedback offer the potential for students to improve their capacity for critical and in depth reflection by promoting critical enquiry and the defence of their reflections amongst their peers. the concept of pta employs an assessment comprised of a series of single ‘patch texts assessments’, patches of reflective critique, that when finally ‘stitched’ together demonstrate the attainment of specific learning outcomes.15 the final work is not a collection as with the portfolio but a complete and coherent whole,16 one piece of work. the relationship between the different patches as a product of learning and an assessment method contributes to the structuring of the learning process. ovens describes pta as the integration of written pieces across the module, which demand critical and personal engagement, and have been the subject of peer and formative feedback, to produce a structurally unified reflective synthesis.17 the final piece is a synthesis of learning derived from the previous patches. winter has described pta as representing an ‘attempt to combine the coherent structure of the essay with the open-ness of the portfolio.’18 the benefit of pta lies in the perspective and understanding at the outset of the relationship of each individual assessment task and the skills that this draws upon and the relationship between these elements and the final piece of work and end learning outcomes. this requires the synthesis 14 paulson, f.l. & paulson, p. (1994) “assessing portfolios using the constructivist paradigm” in fogarty, r. (ed.) (1996) student portfolios. palatine: iri skylight training & publishing, 36 15 winter r. (2003) ‘contextualising patchwork text: addressing problems of coursework assessment in higher education, innovations in education and teaching international, 40(2)112-122 16 brunsden v., goatcher , j., 2008. enquiry based learning . in: the higher education academy psychology network new lecturers forum, aston university, birmingham, january 2008 .   17 ovens p. (2003). using the patchwork text to develop a critical understanding of science. innovations in education & teaching international, 40(2), 133-143 18 winter r 2006 a patchwork text online periodical service company (www.periodicals.com) assessing law clinic – the use of digital patch text assessment as an alternative to traditional portfolios 620 international journal of clinical legal education issue 20 and coherence between the learning outcomes and the pta design at the outset. the advantage of pta potentially over a portfolio is that the former focuses on the learning process, as well as the learning product/ outcome, providing a clear and purposeful structure to the assessment process. indeed pta readily requires students to make full use of formative feedback and the assessment process can drive the learning process. pta is therefore relevant to cle and an experiential law clinic module providing a structure to support the learning experience to enable students to extract the meaning from their reflection on their learning in context. experiential learning whilst rewarding and motivating for students requires a greater degree of student autonomy and responsibility for their learning, through active participation rather than a passive consumption type approach. it potentially yields richer deeper learning by structuring the assessment process and using the process of reflection to both evidence and enhance learning, raising the student’s awareness of further learning opportunities. pta potentially captures the transformative and developmental learning associated with the law clinic experiential learning and uses these to drive the learning experience and student performance. traditional portfolios portfolios19 are a common form of assessment in undergraduate education and the range of learning technologies allows for the use of e-portfolios. the traditional paper based portfolio is regarded as a collection of student work on their experiences in the law clinic experience over the period of the module. the expectation is that students reflect on the development of their skills and also their personal development during the clinic experience, reflecting on the impact of this on their learning, particularly in relation to the role of the lawyer, their future career and professional practice. portfolios can readily be tailored to assess a diverse range of learning experiences, to evidence the attainment of a breadth of skills and the extent of learning according to the specific module learning outcomes, offering the possibility of multidimensional assessment tool.20 the reflective element of writing in the reflective diary or journal, is a critical element that draws together the student’s observations, perceptions and critique of their experience. this element of the portfolio demands more than demonstrating knowledge and new insights through a mere descriptive articulation of learning. it further requires a demonstration of critical analysis and synthesis of learning, drawing on the relevant features of the context of the experience and their impact on the student’s learning and their understanding of the context of legal practice. the reflective element of the portfolio is the mechanism by which the students evidence their understanding of theory and practice21 and its integration and relevance to the specific context of learning and the wider context of delivery of legal services and professional practice. reflections are the ‘student voice’ demonstrating the student’s knowledge and the application of this within the given legal context. that which the tutor is unable to observe or know in relation to the student performance and knowledge acquired in the clinical legal practice/education setting, the student can convey in their reflections. 19 portfolios are defined as “a collection of work that relates to a given topic or theme, which has been produced over a period of time” qaa explaining contact hours guidance for institutions providing public information about higher education in the uk, august 2011. 20 venn, j. j. assessing students with special needs ( 2002 2nd ed nj: merrill) 21 santos m , ‘portfolio assessment: and the role of learner reflection’ english teaching forum 35 (2): 10–14 621 the process of reflection, whilst sufficient to demonstrate the required learning outcomes, is by its nature, the student’s perspective of their learning and/ or performance. this requires further validation by reference to external evidence to support the student reflections. this is especially the case where students are expected to demonstrate application and development of specific legal skills. there is however the danger that the portfolio may become a ‘tale of two halves’ in relation to the student experience, comprised of two separate elements and processes. the separation of the evidence / record of practical skills development and learning from the parallel reflective process on learning can result in the portfolio becoming a collection of individual episodes or moments of learning rather than a seamless representation of the whole clinic learning experience as one ‘joined up’ piece of work. consequently portfolios are not always perceived as leading to ‘integrative’ assessment of /or learning.22 in part this may arise from the quality of the reflective critique and/ or selection of episodes of learning for reflection and inclusion in the portfolio. the problem in relation to portfolios, is that students may focus on one time frame of the clinic learning experience, rather than to reflect more widely back and forward in time to link their learning from these experiences. the reflective process is critical to learning, to enable students to make sense of their clinic experience and to synthesise new knowledge, understanding and insights into their portfolio through their reflections which evidence the learning outcomes. portfolios do however have obvious advantages in terms of student ownership of their work, and in terms of their ability to record the learning acquired over a period of time where this may vary in pace and depth. reflective portfolios offer the capacity to be assessed both formatively and summatively. portfolios allow students to draw on a wide range of different types of academic work and readily accommodate different styles of writing to evidence learning. they do however pose a challenge for students in terms of their ability to manage their workload and learning over time and to sustain their capacity for reflection over the life of the whole module which is usually the selected assessment period. it is not uncommon for law students engaging in the clinic setting who are required to complete a reflective portfolio /log/ to develop ‘reflective fatigue’, feeling obliged to write and add ‘content’ to their portfolio but having no new insights to offer. the danger then becomes one where ‘reflective journals tend all too frequently to remain as fragments held together merely by a chronological sequence.’23 the learning process can become fragmented so that students see their reflective portfolio as a product and outcome of their learning rather than part of the learning process itself. the main criticism of portfolios is the tension between capturing a range of learning outcomes, given that students have to design and deliver the structure to support the attainment of these. portfolios are most effective when conceived as fusion of process and product24 not solely a product of the learning process, achieved by the process of reflection which contextualises the evidence in the portfolio.25 moreover students can all too easily reflect continuously but without synthesising the totality of learning from their experiences, focusing on reflections as single 22 maisch m. m(2003) ‘restructuring a master’s degree dissertation as a patchwork text’, innovations in education and teaching international, 40: 2, 194-201 23 scoggins j winter r, ‘the patchwork text: a coursework format for education as critical understanding’ teaching in higher education, (1999) 4 (4) 485 – 499 24 winsor, p. & ellefson, b. ‘professional portfolios in teacher education: an exploration of their value and potential’ the teacher educator, 31(1) (1995) 68-91. 25 baume d. (2001) ‘a briefing on assessment of portfolios’ assessment series 6 (york :ltsn generic centre) assessing law clinic – the use of digital patch text assessment as an alternative to traditional portfolios 622 international journal of clinical legal education issue 20 events over the direction of the module. portfolios then become a mere collection of individual elements selected to evidence learning26 each connected to the same theme but not synthesised to each other and related to the overall learning experience. to use the analogy of a jigsaw in a box, the same elements are present unassembled, but the view is entirely different once the jigsaw is assembled and complete. the difficulty for students in compiling portfolios, relates to the often wide assessment parameters that assessment of law clinics require. requiring students to demonstrate practical skills development and their understanding of their relevance, value and application in practice through reflection, is a challenge. in addition students also have to select the most appropriate learning events on which to reflect to meet the diverse range of parameters often assessed by law clinic modules. where portfolios are summative, if students fail to integrate and synthesise their work beyond a collection of individual pieces, they risk not meeting the assessment parameters and ‘missing the mark’. a selection of pieces alone without drawing these together in a synthesised coherent way denies the student the opportunity to fully review and reflect on the totality of their learning, and diminishing the capacity to demonstrate the quality of their learning. this is crucial where clinic modules are assessed, as is often in the final year of study and where the period of time over which the clinic module offered is linked to the provision of credit in a single or even a double credit module. outline of research aims and methodology this paper aims to outline the participation of the derby law school in a year long project funded by jisc (joint information systems committee). jisc is a uk national charity that works to support educational institutions, including those in higher education, to support new developments in information and digital technologies and their application in the higher education sector. the depta project – digitally enhanced patch text assessment was funded by a learning teaching and innovation grant from jisc. this project aimed to investigate the use of digital technologies to enhance the use of pta in a variety of higher education environments. the project was a collaborative project involving the participation of five higher education institutions offering a range of different traditional and non-traditional subjects at degree level. the evaluation of the project was undertaken by the centre for recording achievement. the project aims were defined as follows: • to assess the extent, if any, to which digital media could enhance the use of pta • to extend and assess the relevance and utility of pta to the more traditional undergraduate subject areas ( such as law) in different higher education institutions for the purpose of this paper reference is made to the application of the methodology and the findings in relation to the law subject area only and its application within a law clinic module. project methodology in total there were five participating institutions, selected on the basis that there ‘is a notable absence of evidence that innovative forms of assessment are being used in the more traditional 26 baume d. (2001) ‘a briefing on assessment of portfolios’ assessment series 6 (york :ltsn generic centre 623 academic disciplines and institutions’.27 participating institutions were required to allocate a project partners/ contact person from the academic team who was engaged in teaching /supporting the module and would support the project throughout. the pta was to be applied to a final year module on an undergraduate degree. the selection of the digital technology was made by the participating institution according to the technology available and that most appropriate to align with the assessment strategy. the design and configuration of the pta including the number of patches was also determined by the partner institution, the only requirement that all institutions provided assessment criteria for each assessed ‘patch.’ in implementing the project methodology the participating institutions needed to attend to the project objectives. these included: • to extend the use of e-assessment into undeveloped areas i.e. traditional subject areas such as law • to evaluate the extent to which the scope of pta assessment can be extended to embrace subject benchmarks and graduate skills, in particular difficult-to demonstrate attributes where evidence needs to be captured from learning processes as well as products • to consider the capacity to enhance and evidence student learning at a high-stakes level, and the sustainability in relation to staff workload. the project was evaluated using two approaches, one designed to capture student feedback on the use of pta within the specific the module to which this applied, using a student questionnaire. this has a number of questions to which the student has to give a rated response (score of between 1 and 5) giving a crude indicator of the depth of agreement with the statement. this was completed at the end of the project and after students had submitted their coursework. this was additionally supplemented within the law school by a semi-structured interview with student participants, to gain a more in depth student perspective of the value of the module and their participation in the project overall. the second component of feedback was that obtained from the partner institutions, through semi-structured interviews with the project coordinator, to gain their perspective of the project. this was supplemented by a case study video presentation by the project partner, which described in more detail how the project was implemented in that partner institution and briefly outlined some of the findings relevant to the subject area. the project as applied at the partner institution. the project involved the use of pta in the context of a final year module on an undergraduate degree in subject discipline. the law subject implemented the pta into the clinic module, a year long optional module on the final year of a uk qualifying law degree. the law clinic module is delivered several times a year, cohort sizes being small, given the module was a double credit module and seven students from the cohort of twelve, selected participated in the project. as a final year module, it contributed to 25% of the marks for the final year, with the final year marks comprising 80% of the final degree classification. this made the module ‘high stakes’ for those taking part in the project. 27 marcangelo c., ‘jisc final report’ 02/08/2011 para 3.2 available at http://dpta.wordpress.com/an-overview/ assessing law clinic – the use of digital patch text assessment as an alternative to traditional portfolios 624 international journal of clinical legal education issue 20 the law clinic module is assessed by reflective portfolios, student reflections additionally supported by evidence demonstrating the student engagement with the learning setting and their participation in and observation of a variety of legal tasks. the evidence may include records of meetings attended, interview observations, client case studies, minutes of team meetings, feedback from placement supervisor / mentor. additionally anonymised samples of practical tasks such as client letters, statements of claims, undertaken by the student may also be included.28 a detailed activity attendance log was also required as part of the assessed portfolio, requiring students to account for their time, as required of practitioners and is also relevant to voluntary sector accountability for funding. this enables students to be commercially aware and promotes good time management skills. student portfolios may also include reflections on outcomes of assessment of their competence in key tasks such as drafting. due to the depta project lead time, there was insufficient time to change/ modify the existing module learning outcomes under the university quality assurance processes. one of the challenges was the use of the existing learning outcomes and assessment methodology and the incorporation of pta within this. it is worth mentioning here that ideally the use of pta should be undertaken alongside specifically configured learning outcomes rather than using pta as a ‘bolt on’ to existing learning outcomes. the pta consisted of 4 patches 1. critical reflection on: a) an aspect of professional practice b) an aspect of legal process and service from a client’s perspective. 2. submission of client case studies. 3. critical reflection of the service area and the role of legal advisors, as to their value to community they serve. 4. final reflection – this brought together previous pta tasks and supporting evidence, which was presented as a single piece for assessment. patches one and three were submissions where the students could view the work of the other students and offer feedback on ‘patches’ submitted by the other students, as well as being able to read the tutor (member of the academic team) comments on the patches submitted. the feedback process for the shared submissions was therefore reciprocal, with the opportunity to both give and receive feedback from their peer group and the module tutor. the shared submissions aimed to enhance the student’s capacity for critical reflection and develop their individual style of reflective writing through encouraging critique of the reflections and writing styles of other students. the requirement to provide peer feedback was not part of the assessment requirements and was entirely voluntary in the sense that the provision of feedback by the tutor was not conditional upon student having provided peer feedback. 28 ledvinka g. ‘reflection and assessment in clinical legal education: do you see what i see?’ (2006) 9 int’l j. clinical legal educ. 29 ,46 625 the aim of the project was to evaluate the relationship between the use of pta and digital media and to establish what factors would support, facilitate or enhance any student engagement with pta and the assessment outcomes. the aim was not to review the digital media as an assessment tool. the digital media selected was the ‘pebble pad’ on-line e portfolio system and virtual learning environment. e-portfolio systems are generally recognised to be ‘an archive of material, relating to an individual, held in a digital format’.29 pebble pad is similar in structure and presentation to paper portfolios, but potentially offers a broader representation of student work and learning due to the expansive nature and ability to capture, store and present work in different digital forms. the selection of pebble pad was not aimed to reproduce the paper based portfolio in a digital form, but to enable students to share patches electronically at pre-determined dates. students and tutors create an institutional account within the module. the tutor creates common access areas to enable student submission of pta and submission and viewing of feedback. the tutors can view all material within the online student portfolio. pebble pad enables the student to create reflections and daily diaries in a variety of pre-set formats. students can also upload word documents, scanned images, video footage, audio files, and add weblinks, termed ‘assets’ the student can create a portfolio within the pebblepad platform which allows the tutor to view selected work and assets. the tutor receives an email of the title of all assets uploaded to the student portfolios and any amendment to the portfolio, so can view the pace and extent of student progress and track changes made to the pta in light of the feedback given. the selection of this digital media was carefully made in consideration of its ease of use and the implications for any student training, for those unfamiliar with this.30 pebble pad was selected for its ease of use and accessibility and its capacity to enable students to integrate evidence to support their reflections and their learning.31 it also enabled students to submit their pta online and to make shared submissions and to engage in and view peer feedback. additionally, one advantage of the pebble pad portfolio system was that students would continue to have access to the pebble pad platform after completion of their degree, which they could use to potentially develop their own cv,32 customising their presentations and access,33 for self-marketing to enhance employability.34 the inclusion of work from the clinic module was only possible due to the constraints of submission which ensured that no material referred to in the ‘patches’ would compromise client confidentiality, being purely generic and reflective in nature. 29 madden. t., ‘supporting student e-portfolios: a physical sciences practice guide’ september 2007 , 4. 30 hudson l ‘techniques’, 79 (5) (2004) 19. 31 chappell d s and schermerhorn j r ‘journal of management education’, 23 (6) (1999) 651 32 madden. t., ‘supporting student e-portfolios: a physical sciences practice guide’ september 2007,9. 33 joyes, g., gray, l. & hartnell-young, e. (2009). effective practice with e-portfolios: how can the uk experience inform practice? in same places, different spaces. proceedings ascilite auckland 2009. http://www. ascilite.org.au/conferences/auckland09/procs/joyes.pdf ‘learners may create multiple e-portfolio presentations, for a range of purposes, for different audien’ces, at different times. for example, for presenting evidence of skills and achievements to an employer, or presenting reflections on a work placement as part of a course of learning.’ 34 merrit dj., ‘pedagogy, progress, and portfolios (2010)25 ohio st. j. on disp. resol. 7, 14 assessing law clinic – the use of digital patch text assessment as an alternative to traditional portfolios 626 international journal of clinical legal education issue 20 project outcomes the overall project findings are limited as student numbers here were small, only seven students out of the twelve participated. other institutions and subject areas had larger student cohorts. the overall project aimed to investigate the use of digital technology to enhance the use of pta in more ‘traditional’ undergraduate subjects, but absent any control group using pta without drawing on the use of digital technology, it has been difficult to isolate the benefits of the digital technology alone other from the participant feedback questionnaires. it was noticeable that students were influenced in their engagement and their willingness to participate in the project, by their response to the use of the digital media. in some instances the digital media was the reason for some students declining to take part in the project. here the perception being that the time taken to construct the online portfolio within which the pta sat, would take longer than construction of a paper version. this response may indeed have been different if the pta had stood alone and not been integrated into the original assessment by portfolio, for this module. the fact that a number of students were adverse to taking part in the project seemed to be related to the selected digital media or the use of pta as part of an assessment strategy, both of which could be considered to be innovative assessment methods for this student group and outside their experience of more ‘traditional’ assessment methods. the views of students who declined to participate was captured by the student questionnaire. one student commented that they did not like engaging with technology and were put off by the ‘technical stuff.’ another student commented that they were put off by their previous use of pebblepad describing this as ‘inefficient and slow.’ two students who did not participate advanced the timing of the project as the reason for this, wishing to focus on their final classification and the pressure of participation generally. for those students who did take part, five when asked stated that they agreed that the use of the pebblepad had had a positive impact on their work, but there were no further comments to illuminate as to the nature of this impact. students were provided with a two hour demonstration and use of pebblepad. whilst some responded very positively to the use of the pebble pad, all acknowledged that uploading of anonymised evidence as assets to support their reflective pta was difficult requiring the scanning of these which was time consuming. the scanning of assets also countered the benefit of accessing their pebblepad electronically at distance from the university, since scanners were only available on campus. the academic environment draws on a variety of learning technologies which students make full use of through the university platform. in contrast there is a more limited use of digital technologies in legal practice, particularly by the small scale legal service providers in which students were situated for their clinic placement. the law profession has a very traditional approach to record keeping, and it remains the case that client files and documents are typically in paper form. the cultural and professional context of the law in practice is still very much geared to paper evidence, claims submitted and case file correspondence being in paper form .this factor was an additional encumbrance and separated the assessment media from the reality of the context of practice. this is however subject specific relating to the context of the practice of law and the module selected for the depta project at this institution. one of the other participating institutions selected a photographic design module for which the production of a digital online portfolio was highly relevant to the subject discipline. whilst the use of digital media is subject specific it remains relevant for promoting engagement 627 with pta in some subjects. for law however, student feedback confirmed that the digital media facilitated the ‘ease’ of submission and the opportunity to provide and access feedback whilst off campus. the digital media did not however increase student motivation to provide peer feedback. crucially for this project the digital media did not have a significant impact on the engagement of law clinic students with the pta. students stated that they did however gain from reading the pta submissions of other students, but their engagement with providing peer feedback on this was poor. further investigation into the poor response to peer feedback, indicated that this was due to not feeling ‘skilled’ in providing feedback, wary about how useful this would be to recipient students and not wanting to appear negative. they also perceived the tutor as adopting the role of ‘expert’ in this regard. the reluctance of students to engage in providing peer review is no doubt borne of their heightened sensitivity to the personal nature of reflections and their content, one of the few occasions where students can legitimately write in the first person in offering personal insights and their ‘feelings’ regarding their learning experiences. here the use of digital media to provide feedback may make the availability of feedback easier, but may make students uncomfortable with the level of formality. feedback given in tutorial groups by comparison may feel a more familiar process, can be provided verbally and more informally. this author considers that had the feedback to the patches, in relation to the shared submissions been given in face to face in groups sessions, students’ participation in the project would have been greater an in relation to offering peer feedback. there was however a reliance on tutor feedback which was perceived as valuable, focused and aligned to both the individual pta assessment criteria and the overall module learning outcomes so was more useful to students. again the perception of the value of the tutor feedback was relevant to the value of the pta as a process but the use of the digital media to enhance this is unclear. students in the final questionnaire were only asked if the use of technology had a positive impact on their work, arguably too broad a question to isolate the role of the digital in enhancing the use of pta. five of the seven agreed; stated that it did, but did not illuminate as to what the precise benefits of the digital technology were, and the semi structured interviews did not illuminate further. students obviously have their own individual perceptions of the value and limitations of the selected digital media in relation to the assessment task and further research needs to be done to investigate this relationship in more depth absent a specific connection to pta. however balanced against this two students created their own e-portfolios on line which they planned to use in relation to supporting their future job applications and career progression. the appreciation of this potential was a motivating factor in the use of the digital media.35 in the main the feedback from students was that pta in this instance did not significantly reduce the workload associated with the module assessment from the student or tutor perspective, but neither did it increase workload. what tended to emerge, was students focused more on the assessment brief of each patch and reworking this in light of feedback, rather than on the volume of writing usually associated with portfolios. this was not aim of the project, but the use of pta did however help students write more concisely, critically and with purpose, so enabling them to work smart. this emerged from the tutors’ previous experience in teaching on the module and marking portfolios, as well as from informal feedback to the tutor during the project and from the student semi-structured interviews at the end of the project. the improvement in quality and 35 welzer k and strudler n ., ‘journal of research on technology in education’, 38 (2) (2005)231 assessing law clinic – the use of digital patch text assessment as an alternative to traditional portfolios 628 international journal of clinical legal education issue 20 penetration of critical reflection is important to secure the required level of analysis36 associated with final year study. the use of pta also enabled students to be more clear and confident in their progress, in light of the feedback received on each patch, and to identify early on gaps in their learning and synthesis of this. this was evident to the tutor from their observation of the changes in the quality of student writing with the completion of each patch in response to feedback provided. the author believes this ‘work smart’ effect could be better achieved by the use of word limits for each pta, which was not a parameter in this project. in this project the pta was integrated into the existing module assessment and learning outcomes. a more effective and flexible approach would be design the module learning outcomes and the pta at the same time. from a tutor perspective one concern about the sharing of pta for the future in its application to other modules is the need to counter any possibility of plagiarism or collusion. this in fact was not an issue here, as the students on the clinic module all have very different learning experiences deriving from being placed with different placement providers and the uniqueness of their learning experience and environment. this would however be a concern for application to other law subjects where substantive knowledge is the central focus of module assessment. students did however state that they derived considerable benefit and assistance from the structure that the pta provided in relation to the assessment strategy and clearly felt more confidence in knowing they were on track in attaining the learning outcomes. pta process based on a formative assessment model enabled students to make full use of feedback to identify any gaps in their learning, facilitating the structuring of their learning alongside and integral to the reflective process. in particular the submission guidelines which were available to all students on the module, including those not participating in the project, were also valued for their contribution in deconstructing the overall learning outcomes into small assessed ‘pieces’. the guidance illuminated as to the assessment parameters and the relationship between the individual patches, their relationship to each other and the overall learning outcomes. the pta does appear to encourage active and dynamic use of tutor feedback on patches assessed, which was shown in the number of changes students made to their patches after having received feedback on these. this would not usually occur within the concept of traditional portfolios which were previously summatively assessed. students in the feedback at the end of the project and their informal interviews, stated that the individual nature and specificity of the feedback motivated them to make use of this in revisiting their current patches and their work on future patches, individualising the learning process.37 all but one of the student participants stated that the feedback they received helped them improve their final submitted work. students also stated that the feedback was helpful in synthesising theory and practice more effectively, this was also evident in the qualitative changes in their work across the patch text assessment process. the pta structure and process helped students to link the pta guidance to the overall learning outcomes to more clearly outline their progress to date. the feedback acted to feed forward to inform future reflective writing. it also focused student attention to improvements needed and how this could be achieved. the underpinning structure of pta enhanced student autonomy, and as feedback was directed to the reflective process not the context or content. the feedback offered no right or 36 ledvinka g. ‘reflection and assessment in clinical legal education: do you see what i see?’ (2006) 9 int’l j. clinical legal educ. 29 ,39 37 waye v, faulkner m, ‘embedding e-portfolios in a law program: lessons from an australian law school’ 61 j. legal educ. 560 2011-2012, 564 629 wrong but was geared to promoting more critical enquiry into the student experience, attitudes and observations and knowledge. students did however identify that it enhanced their ability to reflect in depth and holistically. the pta potentially enables students to more effectively synthesise their learning experience and integrate theory and practice promoting what winter has described as a ‘gradual’ model of learning as ‘making sense over time’ lies at the heart of the pta.. the sequence of tasks within ..is intended to build into the assessment process a recognition of learning as a gradual ‘coming to know’38 this resulted in what this author regards as an active and upward spiral/ cycle of learning along the life of the module with students motivated by the feedback they received and keen to apply this to future work. the motivational aspect of pta and its alignment with the learning process in maximising the use of formative feedback has an obvious advantage over the traditional portfolio type of assessment. unfortunately the findings do no indicate a relationship between the digital media used and the benefits arising from the use of pta, other than student agreeing that the digital media had a general ‘positive impact’ on their work. conclusions – future use of pta the use of pta in assessing cle offers a number of benefits also recognised in other learning contexts.39 it provides a framework for the provision of feedback to students against clear assessment guidelines. this enables student to maximise the potential use of feedback for the future since this is linked to the process of learning and critical thinking and the process of reflection. this reduces concerns in providing feedback related to ‘content’ where tutors may have concerns about the their feedback, and the balance between assisting the learning process and feedback filling the gaps in student knowledge directing students to the ‘answers.’ assessment guidelines when provided offer the means for students to link the requirements of each ‘patch’ to each other and the overall assessment goal, reconstructing the broad learning outcomes and the process of assessing these, to enable students to more effectively meet these. it also assists the learning process since pta is crucial to enable students to maximise learning opportunities directed by the pta assessment process.40 this helps students keep on track and avoid ‘portfolio drift’ whereby student continue to add pieces to their portfolio without consideration of their value or contribution. however it remains the case for this project that the disadvantage of portfolios could also have been overcome by the provision of clearer guidance in their structure. the real gain in pta is the structuring of the assessment process and its capacity to drive the learning process through the use of feedback to develop the skill of reflection, targeted to more narrow assessment parameters, one patch contributing to the larger whole. all the work the students do is perceived as relevant in contributing to the final product, important given that 38 (n25) 39 rees , b. and preston, j (2003) the international patch work: introducing reflexivity into the business curriculum innovations in education and teaching international vol. 40 (2) 123-132. 40 khan, p (2006). supporting reflective processes with students: insights from a review of research, available at: http://www.heacademy.ac.uk/assets/york/documents/ourwork/research/literature_reviews/reflective_practice_ with_students.pdf assessing law clinic – the use of digital patch text assessment as an alternative to traditional portfolios 630 international journal of clinical legal education issue 20 students are increasingly focused on assessment tasks. in addition if each pta is supported with assessment guidance as well as formative feedback on completion then the pta process ‘feeds’ forward to assist future learning and development closing the ‘feedback loop’41 through the resulting action. this maximises the opportunities for future learning through reflection since each pta can be amended up and until the final submission with all patches being incorporated into the final ‘patch.’ these qualities are often not incorporated into traditional portfolios which focus on the form of content, including reflections, sample case study, case conference meetings, rather than the process of reflection linked to these.42 previous studies have shown that the use of portfolios, in particular eportfolios such as pebblepad, without the embedding of the pta within them, as was the case in this project, focus students attention to the construction of the portfolio as to content, without being accompanied by the relevant learning.43 in the case of the derby law clinic, the use of pta as a replacement for the traditional portfolio has much to offer for the future, even without the use of digital media to support this, since the findings of the project revealed that the selected digital media itself did not appear to add value to the overall assessment or learning process. the impact of pta on learning may have been more apparent had the pta been specifically designed alongside the learning outcomes rather than grafted onto these. the engagement with pta may have varied with the selection of a different form of digital media, or indeed allowing students to select the form they felt comfortable with. for the future the author is keen to explore the use of pta as an alternative to portfolios given some of the advantages they have yielded within this project. pta offers a structured form of assessment that can potentially be applied to other law modules. however such an application needs careful consideration as to its application to other law modules as to the number of patches, student numbers and time available for providing feedback. the sharing of patches for assessments sharing the same substantive content/ knowledge may need consideration regarding plagiarism and collusion. the depta project allowed students to share their unique ‘clinic’ experience and reflections on these, the substance of which varied for each student and so avoided any concern arising over the originality of the student’s work the provision of generic feedback can overcome some of these concerns, students in this project valued the individualised nature of their feedback which was manageable for tutors given the small size of the student cohort. the provision of pre-assessment guidance and post submission feedback can assist learning but a careful balance is required in maintaining student autonomy and encouraging students to take a lead role in the assessment process so reducing tutor dependence in this respect. pta is an innovative form of assessment which has the potential to enable students to learn and work effectively where the learning outcomes and assessment strategy are creatively designed and aligned to promote this. it potential as an assessment strategy is directly linked to the context of learning and assessment. the design and aims of pta align well to the experiential model of 41 hounsell, d.,mcclune, v.,hounsell, j. & litjens, j. (2008) the quality of guidance and feedback to students. higher education research and development, 27(1), 55-67. 42 ledvinka g. ‘reflection and assessment in clinical legal education: do you see what i see?’ (2006) 9 int’l j. clinical legal educ. 29 43 waye v, faulkner m, ‘embedding e-portfolios in a law program: lessons from an australian law school’ 61 j. legal educ. 560 2011-2012,576 631 learning, which had the most significant impact on learning. the use of digital media to enhance pta is however more sensitive to the profession and practice norms, which seemed to operate as a barrier to engagement with pta here, rather than a trigger to facilitating this. student attitudes to the mode of assessment are very much influenced by their previous experiences and understandings44 and their confidence in any digital media used in this process. the concept of patch text assessment aligns well to assessment strategy of law clinics, in promoting concise and incisive reflection on experiential learning. it also provides a structured assessment process that is aligned to capture and promote the development of personal and legal skills and substantive knowledge acquired from practice settings, which the essence of the law clinic experience. karen clubb university of derby ijcle conference durham, july 2012 44 marcangelo c., ‘jisc final report’ 02/08/2011 para 2.3 available at http://dpta.wordpress.com/an-overview/ assessing law clinic – the use of digital patch text assessment as an alternative to traditional portfolios 632 international journal of clinical legal education issue 20 reviewed article: teaching and learning in clinic specialist legal clinics: their pedagogy, risks and payoffs as externships adrian evans and ross hyams1 monash university, melbourne, australia introduction within clinical legal education there is a great deal of discussion at the moment about externships. part of the motivation for all this conversation is the desire of law schools to get in on the clinical ‘act’ as inexpensively as possible. some law deans have the view that they can outsource clinics to firms and agencies and achieve reputable clinical outcomes with little or no expenditure. we beg to differ and in this article we explain why law school management of an externship experience is resource intensive and nearly as complicated as an in-house clinic. it may be less expensive, but an externship can never be set and forgotten. 1 adrian evans is professor of law and ross hyams is senior lecturer in law and convenor of law faculty legal practice programs at monash university we also discuss the peculiarities of specialist externships, since many externship sites are in fact specialist legal practices. in fact, the attraction of an externship is the access it provides for students to participate in a specialised area of law, while overseen by specialist lawyers. we set out in detail the advantages and disadvantages of operating such placements and connect these to the recent australian best practices in clinical legal education. to begin with however, we need to define some terms as they are used in an australian clinical setting. definitions of clinics in an australian context between 2010 and 2012 an australian study of clinical practices in over 30 law schools (the best practices2) came to the very definite conclusion that specialist clinics are clinics, even though there may be no conventional client or there is a research task. what is important is that students work on real-life projects rather than simulations. the best practices recommended by the australian study were unanimously adopted by the council of australian law deans (cald) in late 2012. they defined and described clinics as follows: 2 see adrian evans, anna cody, anna copeland, jeff giddings, mary anne noone and simon rice, best practices: australian clinical legal education, australian government, canberra, 2013, ‘definitions’, at p 20. in the united states, similar best practices for externship clinics can be found in roy stuckey and others, best practices for legal education: a vision and a road map (us best practices*), clinical legal education association, usa, 2007, section d. united kingdom scholars or clinics have not thus far sought to identify and establish best practices for externships. see philip plowden (ed), model standards for live-client clinics (uk model standards), clinical legal education organisation, united kingdom, 2007. what is ‘clinic’? ‘clinic’ or clinical legal education (cle) is a significant experiential method of learning and teaching. cle places law students in close contact with the realities, demands and compromises of legal practice. in so doing, cle provides students with real-life reference points for learning the law. cle also invites students to see the wider context and everyday realities of accessing an imperfect legal system. clinical pedagogy involves a system of self-critique and supervisory feedback so that law students may learn how to learn from their experiences of simulated environments, observation and, at its most effective level, personal responsibility for real clients and their legal problems. cle is, in summary, a learning methodology for law students that compels them, through a constant reality check, to integrate their learning of substantive law with the justice or otherwise of its practical operation. what is ‘live client’? live-client cle is intensive, essentially one-on-one in nature, with an implicit expectation that (mostly) self-selecting students will do well as they apply legal theory, develop lawyering skills and build their confidence in solving the legal problems of real clients for whom they are responsible, under supervision. liveclient cle entails a high staff-student ratio and collaborative learning environments so each student is motivated to improve and perform at their best. students are so motivated because of the personal responsibility of working with and being accountable to clients, as opposed to software or other simulated accountability structures. clinic type definition australian example wholly law school funded in-house liveclient clinic on campus, wholly funded and controlled by law school for student education university of south australia legal advice clinic in-house live-client clinic (some external funding) substantially funded, substantially controlled by university, for student learning and client service kingsford legal centre, unsw external* live-client clinic (‘agency clinic’) university students placed in an agency, under substantial supervision of agency, assessed by university, with input from placement springvale monash legal service, monash university externships* (includes ‘internships’ and ‘placements’) university students placed in an agency, under supervision of agency, assessed by university, with input from placement griffith university semester in practice.3 any of these clinic types can accommodate specialised legal service delivery, as we describe further below. in practice, it tends to be the externships (as above*) in the australian setting that provide a natural fit for specialised delivery, because the external agencies have most often been established to offer such specialised services. but it is important that we first emphasise something which the best 3 ibid. practices’ research underlined: that the nature of supervision is the key linking ingredient between all types of clinic and the main reason why a ‘set and forget’ approach to externships (be they general practice or specialised) cannot be tolerated. the best practices contain a number of specific practices that deal with this key requirement for a successful externship: the quality of supervision. supervision the agreed principles of supervision include several which frame the ideal relationship between an external supervisor and their students: • supervision arrangements are designed to assist students to link theory and practice and to work collaboratively with supervisors in addressing clients’ needs. • supervision is structured, with ground rules and clear learning objectives. as a system, it ensures students’ right to supervision and feedback, together with support and respect for both supervisees and supervisors. • supervisors meet with each student on a regular basis as well as have the capacity to respond to unpredictable events. • development of a strong supervision relationship relies on supervisors as role models.4 4 evans et al, n 6, p 55. externship supervisors, just as much as their in-house colleagues, need these attributes, according to the best practices: supervisors also need to have particular personal attributes. they should • be able, both as teachers and practitioners; • model constructive work relationships; • provide feedback and constructive criticism (see ‘feedback’ below); • be available, in that they are co-located with the students or are able to meaningfully interact through use of technology; • be approachable; • be adaptable and flexible in maintaining a constructive and student-focused approach; • communicate effectively; and • self-evaluate and accept evaluation by supervisees and peers.5 furthermore, external supervisors are asked to be accountable for their supervision in the same way as in-house supervisors. this list of best practices goes on to make it obvious that an externship is not a cheap dumping ground for students who cannot be housed in an in-house clinic. all supervisors, including short-term, locum and agency-employed supervisors, must be trained in the process of supervision and provided with the time and resources to fulfil their responsibilities. supervisors must also be able to participate in specific supervision training courses and skills development 5 ibid. processes. universities should be able to give ongoing commitment to the professional development of supervisors.6 in agency clinics and externships the training is provided to supervisors by the law school in conjunction with the agency. training addresses the ways in which the dual purposes of client service and student learning can be advanced together. there is a shared commitment to meaningful liaison between academic staff and externship agency staff. training includes a clear understanding of: • the learning outcomes of the externship; • the role of the supervisor in supporting the student learning; and • how the assessment from the agency staff feeds into the students’ academic progress. law schools and their clinical courses provide to supervisors: • structures to effectively support junior and sessional supervisors; • a supervisor manual; • access to other clinical supervisors for mentoring purposes; • sufficient time to develop supervision skills before a full supervision load is required of them; and • sufficient time and resources to ensure their professional development – in both clinical teaching and the areas of law in which they are practising. 6 for a general discussion of the importance of all supervisory issues in the australian context, see jeff giddings, promoting justice through clinical legal education, justice press, melbourne, 2013. in agency clinics and externships, supervisors receive an induction into clinical methodology and some training in supervision. this training addresses the provision of feedback to students. supervisors are sufficiently accessible to deal promptly with unexpected critical incidents. supervisors also enable the student to incrementally develop the understandings and skills identified by the clinic as important. in externships, supervision arrangements, including regular meetings, are discussed and established collaboratively by the student, the supervisor and the clinical academic responsible for the course. the constructive provision of feedback is central to student supervision. feedback is clear and is focused on enabling the student to build on good performance and develop their skills and understandings. it must also be provided in a timely manner so as to enable the student to address and build on the feedback. further students need to undergo training to constructively receive feedback. in an agency clinic, the nature and timeliness of feedback is planned collaboratively between university and externship agency.7 if supervision must meet these standards in a general externship setting, can they be any less rigorous in a specialised setting? in principle, the answer is no. in the next section, we describe in more detail the nature of a specialist clinic and its relationship to the externship setting, in an effort to demonstrate why clinical externships that deliver specialised legal services must be treated with the same 7 evans, et al, op cit, p 57. respect as in-house clinics if quality educational outcomes are to be achieved for law students placed there. describing and explaining specialist (or specialised?) clinics specialised clinical legal education commenced in australia in 1995, with a sexual assault clinic at monash law faculty. this description of that inaugural clinic, which was located inside the then springvale legal service inc. (sls), was written a year later: “in conjunction with the south eastern centre against sexual assault (secasa) and monash medical centre (mmc), sls has commenced a pilot joint clinical legal service to assist victims of sexual assault. this is the first of a number of specialised options to be made progressively available to law students over the next few years. a steering committee of sls and secasa selects as possible 'staff', students who have performed competently and demonstrated a developed feminist analysis during their placement at the legal service. those selected have been invited to volunteer for the pilot clinic and all have done so. the pilot process is limited to three or four students, each with a maximum of three clients referred from secasa. initial interviews will be conducted jointly with the referring secasa counsellor. clinical services will concentrate on crimes compensation applications, civil actions for damages (if appropriate), emergency housing relocation and police-victim liaison (in the event of criminal proceedings commencing). professional and educational acceptance of this innovation depends on demonstrating that the low file load and high supervision ratio (four students supervised by two volunteer, experienced community lawyers) can ensure both quality clinical education and because the students will work in conjunction with secasa counsellors and have more time available per file than private practitioners far better than average professional services. specialised clinical experience of this sort is designed to consolidate and deepen a student's perception of a range of professional issues, including drafting, advocacy, multi-disciplinary approaches and 'client care'. sexual assault is only one example of this potential.8” in 1995, the monash law faculty already had a 20 year history of running a general practice clinic at sls. sls was then and is now an externship site, with its own community elected board of directors and its own client service and law reform agendas. but the peculiar history of sls9 meant that its director had always been a legal academic10 and this person had come to understand that there were advantages for an advanced approach to teaching a specific area of law and serving a particular type of clients to a higher standard than was feasible in a general practice clinic. specialisation has since become commonplace in australian clinical programs. these clinics have thrived not only because they mimic the way in which most 8 adrian evans, ‘specialised clinical legal education begins in australia’ (1996) 21 alternative law journal 79. 9 see generally, kerry greenwood, it seemed like a good idea at the time, springvale legal service inc., 1994. 10 as of 2014, the leadership of smls has been divided between an academic director (a law faculty academic) and an executive director, a lawyer employed by smls. law is practised in the private profession,11 but because they make pedagogical sense, particularly when they develop organically from earlier general practice clinics. specialised clinical students who come out of best practice approaches to legal education are, we assert, likely to be among the most proficient and balanced of any clinical graduates. where a law school has embraced good law teaching wholeheartedly, it will have invested in good skills simulation, critical awareness of access to justice issues and general practice clinical environments. students entering a specialised clinic with such a background will automatically build on the skills and attitudes they have already acquired in previous simulated and clinical experiences. from excitement to contribution. so what is the pedagogical and developmental value of a specialised clinic? what can it provide over and above that of a generalist in-house clinical experience? the first and most obvious advantage is the consolidation and refinement of primary professional skills and legal knowledge. these are both made more acute because of the narrower legal content of the specialisation and the greater similarity of presenting client problems, allowing students (and their supervisors) to acquire a greater depth of experience in the available time. 11 see for example, adrian evans and clark cunningham, ‘speciality certification as an incentive for increased professionalism: lessons from other disciplines and countries’ (2003) 54(4) south carolina law review 987-1009. it is not the case that a general practice clinic automatically offers an inadequate preparation for the realities of legal practice. far from it. many graduates of such clinics have made profound contributions to the law and to wider society. a significant general practice experience is central to translating simulations into dealing with real clients (see figure 1 below). but specialised clinics take the experiential process to its logical conclusion: the emulation of all aspects of private specialised lawyering, save that of billing. specialisations ‘speak’ directly to the burgeoning particular interests of individual students and can generate an even greater degree of energy for the specialisation than they experienced in the general practice clinic. if general practice students suddenly find themselves becoming passionate about legal practice, specialised students become committed. the general practice flush of excitement becomes the specialist’s vocation. they suddenly recognise the opportunity to link personal passion with the chance to develop long term expertise – and for some, realising that they actually have a sense of ambition about a particular workplace environment and career path. despite these profound connections, there are occasional queries about the legitimacy of describing a specialised clinic as a ‘clinic’. the following case studies from monash university tease out the difficulty of achieving externship best practice in concrete, specialised settings. case study – the monash faculty of law suite of clinical offerings currently, monash law offers a suite of seven ‘specialist’ clinics which operate as externships inside a ‘shell’ unit known as clinical externship, in addition to the original and primary clinical unit, professional practice. specialised clinic gp clinic simulation figure 1: … from simulation to specialised clinic – gp clinics are central to the progression. in some of these specialist clinics, a student who seeks entry and who has satisfactorily completed professional practice will receive priority consideration over other equally credentialed students who have not completed professional practice. the priority entry process is intended to emphasise and incentivise the sequential nature of clinical methods for monash law students in the manner outlined above. the published outcomes for these specialist clinics identify that at the completion of the unit students should: a. have further developed the personal and communication skills acquired in professional practice to a higher level of sophistication b. have a good understanding of the principles of law in their chosen area c. have an understanding of the practical application of the law in their chosen area d. be able to assess the effectiveness of the law and applicable legal remedies in their chosen area e. have further developed their ability to work jointly with a professional in another discipline f. graduate with highly developed skills and recognised expertise in their chosen field. the seven specialist clinics are: 1. sexual assault clinic12 in conjunction with the south eastern centre against sexual assault (secasa) at springvale monash legal service (4 places, three times per year) legal services to victims of sexual assault. 2. human rights clinic in conjunction with the castan centre for human rights at holding redlich, solicitors (2 places, twice a year) litigation involving human rights in the broadest sense everything from compensation for workplace injuries and discrimination to assisting asylum seekers and elderly victims of fraud and predatory lending. immediate casework supervision is provided by the law firm and academic coordination by a member of the clinical staff. 3. family violence clinic assisting victims of family violence (2 places, three times per year) assisting victims of family violence by attending the court on family violence list days and assisting the duty lawyer to help clients make victims of crime applications to the victims of crime tribunal (victoria). 4. jobwatch clinic students are based at jobwatch, in central melbourne (2 places, twice a year). students receive extensive training and support to give advice on the telephone advice line in relation to various employment law issues, and assist with legal education materials. 5. monash/ashurst corporate governance and responsibility clinic (4 places, twice a year) this clinic is open to students who have completed corporations law. students participating in this clinic work with faculty members, 12 this is the original monash specialist clinic referred to above, n2 practitioners and corporations to provide advice on corporate governance and social responsibility issues to not-for-profits and/or asx listed companies. 6. supreme court clinic (2 places, twice a year). students participating in this clinic work with judges and other judicial staff members of the court. students are required to assist judges and other judicial staff in judges’ chambers at the court in drafting speeches, preparing case summaries and undertaking complex legal research. they also assist judges’ associates in other legal and administrative duties in chambers and court. as part of their assessment, students are required to prepare an oral presentation of 20 minutes on a topic approved by their court mentor in consultation with clinical legal education staff. the presentation is assessed jointly by a judge of the supreme court of victoria and a member of the clinical teaching staff of the faculty. 7. victorian civil and administrative tribunal (vcat) self help centre (10 students, twice a year). students attend vcat for one full day each week over a 12 week period, providing unrepresented parties with information about vcat’s practices and procedures that will help parties make or defend claims in diverse areas such as planning and environmental, tenancy, consumer, guardianship, mental health, equal opportunity and building and property law. these clinics generally follow the same assessment regime, however alterations to this format are made in discussion with the hosting body, depending on the nature of the tasks being performed at the clinic and the educational objectives of the clinic: assessment task value 1. casework at clinic (the actual criteria change, according to the work of the clinic) 80% 2. research paper (1000-1500 words) 20% the following section provides a detailed description of one of the most recent monash specialist clinics: objectives, operation and reality in the corporate social responsibility clinic this clinic was created because we realised we had a gap in clinical offerings. there was nothing to appeal to students who had a more commercial leaning and we saw no reason why students with a strong interest should not receive a clinical experience. students participating in this clinic work with faculty members, practitioners and corporations to prepare corporate governance reports for asx listed companies. students work alone, or in pairs or groups of up to four on a report under the supervision of a faculty and/or practitioner mentor. there is some debate among monash clinicians as to whether this new ashurst clinic can truly be considered a clinic, considering the ‘client’ is a corporation and the social justice routes of the monash program. in fact, the clinic has a high-order social justice agenda and teaches very practical skills and these two aspects appear sufficient for it to be considered a clinical externship, rather than just ‘work experience’, work integrated learning or an observational placement. casework inside the csr clinic is divided up as follows: skill area mark ability to accept responsibility, exercise initiative, respond to feedback, collaborate with others and work effectively as part of a team out of 25 ability to communicate effectively with clients and colleagues and act in an ethical and professional manner out of 25 ability to research, understand and analyse the relevant law, and the relevant factual and commercial context, and apply the law in a practical manner out of 25 ability to write clearly and succinctly, in an appropriate style, and with a logical structure out of 25 total /100 the csr clinic has provoked excellent feedback from students: my experience with the clinic was overwhelmingly positive, largely due to the support, enthusiasm and guidance of bruce and corey [the ashurst partners], and also the really lovely team dynamic we developed amongst our little group of students. i think the best aspects of the unit were the chance to experience life at ashurst, our ability to drive our own research and divide work amongst ourselves, the chance to work for and meet a real client, and the in-depth understanding we gained of a very specialised area of corporate law (although i picked up a lot of general knowledge about the financial world as well). i also really appreciated bruce and corey's efforts in making us feel at home we had security passes, meeting rooms booked, were introduced to many staff members and were invited to several functions. i think we all felt very included, and that bruce was really proud of the project which was nice. this sort of feedback emphasises how important it is to have ‘buy in’ from the firm! why operate specialist clinics as externships? specialist clinics are and can be both in-house and external, without loss of pedagogical value and there is no imperative to operate a specialised externship clinic (sec). however there are several reasons why they make sense. first, the externship site will itself often be engaged in precisely the specialised area of service delivery that a law school considers attractive or offers a good fit to the law school’s priorities. well-known in-house clinical ‘norms’ of practice, for example, human rights and some types of criminal practice can be standard bearers and encourage more recent specialisations (such as corporate social responsibility). if the same specialisation were to be offered in-house, the law school might face considerable logistical and recruiting problems, attempting to find suitable staff and develop the sort of profile and reputation that specialist clients would consider appropriate. all this takes a lot of time. so a law school will typically prefer to bypass many of these difficulties by going straight to an established and reputable ngo or law firm and begin to talk about the potential externship clinic. second and for similar reasons, the sec is potentially more affordable than an inhouse equivalent. specialised externships can be cost neutral or lower cost to the law school because the external agency or firm can often be persuaded to fund the cost of the supervision itself, in return for the labour and commitment of the allocated students. third, a sec offers complete alignment with the growing recognition that ’work integrated learning’ (wil) concepts are central to all educational approaches. 13 the sec is ‘real’ and foreshadows the experience students will require in that specialised practice area. while law and medicine (for example) have always understood the importance of integrating academic learning with its application in the workplace, much wider service sector recognition has now reached the point that many ngos and niche law firms find it unsurprising that a law school would propose a specialised externship. fourth, the external clinic can reduce the insular nature of some law school environments. reliance on external skills and expertise means the potential within 13 see for example the february 2014 agreement between universities australia, the australian chamber of commerce and industry and the business council of australia, at http://theconversation.com/universities-australia-deal-to-get-students-work-ready-23719. an in-house clinic for internal exclusivity or narrowness of competence and attitudes is reduced. finally, a sec is also a very good way to harness the goodwill of clinical alumni. connections with these graduates can be developed to locate externship sites and potential supervisors at those sites can be carefully nurtured, benefiting both those professionals by allowing them the chance to give back to their law school and the sec students, by connecting them with possible future employers. the process completes an alumnus-student-alumnus loop that may be both expanding and self-sustaining within a few cycles. firms led by alumni recruit from trusted current students, who become the next group of employers and so on: a sec can operate without a primary (general practice) clinical experience preceding it, provided the externship itself is carefully and thoroughly set up – but it’s not as seamless or productive in the educational outcome sense as the preferred, progressive gp>specialisation model advocated here, simply because there is less time for students to develop in their understanding of practice. the one specialised externship graduate encourages their supervisor to welcome more students. the specialised externship expands and generates good will for students and the objectives of the ngo or law firm. stand-alone sec may also be educationally deficient because students entering a sec as their first clinic are not necessarily doing so with full knowledge of their own attributes, learning styles and learning needs. taken as a whole, the specialised externship does best when it follows a significant in-house gp experience, but even in this context, these clinics must be organised and set up carefully if they are to avoid some well-known traps. what are the pitfalls of specialised externships? the principal issue in setting up a secure and stable externship is not the area of specialisation, but the quality of the externship set up per se. a number of factors are in play here: no control over the day-to-day experience of students to a large extent, the quality of day-to-day student experience is a leap of faith. clinicians have to be confident in the educative abilities of externship partners and rely on them to provide the students with educationally useful and valuable activities. reliance is also placed on the students being adult, independent and autonomous individuals who will report back any dissatisfaction with the quality of the experience. monash tries to deal with this via a mid-semester visit to all externships to speak with a firm representative and students independently, in order to gauge whether expectations (on both sides) are being fulfilled. quality control of mentors. legal education is being delivered by non-university staff and practitioners do not necessarily make good teachers. as such, the university cannot control what is being taught and how. the quality varies widely. experience has demonstrated that the firms who are interested in offering clinical placements are keen and enthusiastic and that there is usually a ‘champion’ who is not only a good practitioner, but also a good teacher. however, students do sometimes complain that, apart from the ‘champion’, other members of the placement firm were uninterested or even hostile. this is very hard to control. part of the way of resolving this is to ensure that assessments in all externships are finalised by clinical staff. accordingly, the host firm will assess the ‘casework’ aspect and sometimes provide a mark for the written work, but the program convenor will always second mark and second check the assessments and sign off on all final marks. student expectations and the reality of practice part of having successful external placements is the management of student expectations. students need to have a good (and realistic) idea of what they will and won’t be doing as part of the externship experience. sometimes they have an idealised concept of practice in which they are very important and lauded for their intelligent insights. the reality very rarely matches this expectation. efforts are therefore made to be very clear to students about what they’ll be doing in the externship, where they will be on the ‘totem pole’ (usually, the lowest of the low) and what they should expect to get out of the experience. maintaining student interest getting the word out to the student body about the suite of externships available is the hardest thing to do and takes the most effort. in a large law school in a very large university with many different double degree combinations and choices of electives, word of mouth is nowhere near as effective as might be thought. the adage of “build it and they will come” does not necessarily apply here. the mantra therefore is promote, promote, promote. global emails and printed advertisements are a given, but scheduled information sessions where members of the hosting body come to speak to students are more effective. however, such visits are incredibly time consuming and administratively demanding. the difficulty is that if the program convenor does not have the appropriate students to provide for a particular externship, momentum is lost within the host firm, or worse their ire is incurred, as they are relying on their positions to be filled semester after semester. dealing with and managing external interests – time consuming! management of the externship relationship is probably the most significant issue with specialist clinic placements. the program convenor requires considerable patience and time in order to deal with externship personnel. their expectations of the relationship (kudos, free labour, fulfilling their pro bono requirements) must be juggled so that law school interests in appropriate work for students and professional on-site supervision are not compromised. the relationship cannot be maintained entirely by email or telephone and requires regular site visits, plus the willingness to go and meet externship supervisors at the site when a particular problem arises. considerable negotiation is always required to come to a reasonable conclusion regarding student hours of work, the type of work, the avoidance of entirely junior supervisors of students and the assessment regime and other similar matters. as the best practices make clear, it’s important to agree on a memorandum of understanding before the first group of students commences, so that everyone is in agreement with these basic matters.14 the on-going externship relationship also requires a lot of work. contacting each externship before each group of students starts to ensure they are preparing for the next group can never be neglected. this is not a role for an introvert. at least one site visit during a placement period is also a good idea, to demonstrate the law school’s investment and involvement to both students and the firm. 14 best practices, op cit, n 6, infrastructure, best practice #3, p 65. ideological and educational disparities law firms tend to point out the difference between conventional law school learning and the ‘real world’. part of the large law firm mentality is the focus on time sheets, profits and efficiency. this is important for students to learn, but a mature understanding of clinical process requires a social justice agenda, the promotion of best practices and ethical interaction with clients.15 there may be a disparity between clinical legal education core beliefs and a pragmatic, big firm mentality. it is important to ensure that externship students are pre-equipped to deal with and discuss the large firm mentality in the interests of strengthening their understanding of the importance of a strong social justice priority in their own professional futures. this, again, is very hard to control. however, differing practice cultures can be managed in a number of ways: a) acceptance of pedagogy in establishing the clinical externship, it is essential to ensure that those in authority at the externship site and the people who are dealing with students day-to-day understand the philosophical and ethical position of the clinical program, and particularly its social justice agenda. 15 op cit, ‘law in context in a clinical setting’, p 53 b) counselling students regularly students should be de-briefed during the externship period in order to draw out these issues and the clashes the students might be experiencing between the clinic’s lawyering objectives and that of the firm. c) reflective journaling – this requires students to formally write up confronting issues and submit them for discussion. journaling forces students to unpick issues and incidents which may go unnoticed and undiscussed. these journals can be readily assessed.16 d) moral and ethical preparation – increasingly, it is necessary to prepare students to encounter ‘real world’ profit priorities in some externship sites by checking to see that their law school ethics curricula are not just focussed on rote learning of local professional conduct rules, but are underpinned by a more substantial understanding of general morality17 and legal ethical types.18 experience suggests that a student who has reflected on the deeper issues of access to justice via these frameworks will manage some big firm cultures with a 16 see for example, michele leering, ‘encouraging reflective practice: conceptualizing reflective practice for legal professionals’, (2014) 23 journal of law and social policy 83; hyams, r "assessing insight: grading reflective journals in clinical legal education" (2010) 17 james cook university law review 25 17 see for example, hyams, et al, practical legal skills, 4th edn, oup, port melbourne, 2014, ch 4 ‘keeping out of trouble’.; evans a, the good lawyer, cambridge university press, port melbourne, 2014. 18 see for example, christine parker and adrian evans, inside lawyers’ ethics, 2nd edn, cup, south melbourne, 2014, chs 2 and 3 and appendix. stronger capacity to engage confidently in justice discussions inside the externship and subsequently. room for improvement there remain several areas where improvements can be achieved in the management of clinical externships. expansion – more clinics or more students per clinic? the problem with expansion is the danger of ‘over extension’. there is no point having dozens of clinics and no students to participate. however, the wider the range of clinics available, the wider the appeal to a greater pool of students. part of the difficulty of expansion is that programs tend to draw on a limited pool of students who understand the value of a clinical experience. there will always be a hard core of ‘commercially driven’ students who cannot see any value in a clinical experience and thus will not expose themselves to a clinic, even if that specialist clinic focuses on an area of law (such as small business) that they envisage themselves working in, in the future. clinical programs can rarely draw from the entire student body and this will limit the number of potential applicants to fill all the places in all the clinics provided. the other problem is that clinics take a lot of administrative work for small numbers of participating students. more clinics amounts to more administrative time. if the clinical convenor cannot absorb that work, someone else has to. for the public face of the law school, these clinics have to be efficiently managed. the more there are, the harder it is for one person to administer them. so, specialist clinics ought only to expand with caution. it is essential to ensure that the program has the administrative infrastructure and the sheer student numbers to support expansions, not just faculty goodwill. developing understanding of benefits of clinical pedagogy amongst students and faculty colleagues clinical method can be introduced early to students in the curriculum in various ways and when this occurs, the long-term development of clinical benefits is more likely. this can be done by: • observation and placement assignments in foundation years – students are able to observe, shadow &/or ‘buddy’ students19 in the later-year clinics for a period of time and write a ‘content of the law’, reflective or ‘access to justice’ assignment. • continuous ‘awareness training’ – staff should constantly remind students of how to test doctrine being learnt in law school against the reality of practice, by participation in a clinical unit or by volunteering in appropriate ngos or externship sites. 19 see hyams, r ‘clinical buddies: jumping the fact-law chasm’ in naylor b and hyams r (eds) innovation in clinical legal education: educating future lawyers — monograph no 1(2007) alternative law journal it may be a little more difficult with faculty staff, who often have very entrenched views of the (perceived lack of) value of clinical experience. the best way to work with this limitation is by being very proactive by, for example, providing presentations at staff teaching seminars of educational approaches occurring in the clinics (such as reflective writing/skills and other exercises such as simulations and role plays) which may have relevance to mainstream units. it also adds credibility if clinical staff engage in presentations at staff research seminars of outcomes of clinical research, in relation either to pedagogy or “legal content’ issues. clinical teachers need to engage with mainstream staff in academic environments to demonstrate the validity of clinical pedagogy and thus make it more relevant and less confronting for mainstream academic staff. developing a deeper understanding of pedagogical aims amongst ‘host’ placement firms. again, encouraging the acceptance of pedagogical objectives is an evolutionary, long term process. it is a matter of being very focussed on why a clinic is being established and maintained with a placement firm and an agreed set of goals. the firm needs to see and deeply accept the difference between ‘observation’ or ‘work experience’ on one hand and clinical experience on the other.20 the first two questions that should always be asked when an externship is suggested is: 20 see further, best practices, op cit, introduction, pp 10-11. 1. what are the aims of the clinic (i.e. student learning outcomes)? and 2. what will the students actually do? the firm needs to be reminded about what benefit the students are receiving from participating in the clinic. they need to understand that students are not merely a source of free labour or that the firm can expect low-cost kudos from its association with a university. this means that the program convenor overseeing the externships must be very clear about their purpose and communicate that clearly and consistently to the host firms. deeper links between the profession and the faculty through externship pedagogy. the aim is mutual benefit from the relationship. it is very useful to have strong, wealthy and influential allies in the profession, if there is ever any threat to the clinical program from within the university. if the clinical program has a review, it is very powerful to have external, powerful firms speaking on its behalf and extolling its virtues. many of these firms will also draw employees from students who have completed clinical placements, thus further strengthening the ties. law firms will also provide feedback to the law school about the sorts of skills and knowledge they are looking for in potential employees, which may influence the faculty’s curriculum development directions. at the least, that conversation provides a conduit for a useful discussion in this area. it is also possible in the long term that they may donate funds for the ongoing work of the clinics. opportunity for multidisciplinary work. the future of clinical work may well be in multidisciplinary partnerships. this model reflects the reality of practice and is a very fertile learning environment for law students.21 placements into ‘non/quasi’ legal environments are an opportunity for students to experience this collaborative agenda first hand. there is room for expansion to non-legal environments such as a) family relationship centres in australia – working alongside mediators and social workers in family law matters. b) business and accounting firms – working with accountants and financial counsellors. c) medical suites and hospitals – participation in medico-legal specialisations, writing wills for terminally-ill patients, etc. d) small business clinics – working with finance and tax professionals. the multidisciplinary pedagogy is also a fertile area for research for clinical teachers. 21 see hyams r, brown g and foster r (2013) “the benefits of multidisciplinary learning in clinical practice for law, finance, and social work students: an australian experience” 33 (2) journal of teaching in social work 159; hyams r “multidisciplinary clinical legal education: the future of the profession” (2012) 37 (2) alt lj 103; hyams r & gertner f "multidisciplinary clinics broadening the outlook of clinical learning" (2012) 17 international journal of clinical legal education 23. conclusion it should never be assumed that creating and sustaining clinical externships are easy because they are cheap and the supervisory work is outsourced to willing (and competent) partners. it is important that the objectives of the clinic are very clear in both faculty and the external partners’ minds and that pedagogical aims are clearly defined before a clinic gets underway. further, the faculty must satisfy itself that educational and ethical standards are being upheld. there are definitely a number of practical limitations and barriers which need to be negotiated in creating, operating and sustaining clinical externships. there are also some exciting pedagogical opportunities and positive consequences for law faculties in forging stronger bonds with the practising profession, all of which makes the effort worthwhile. -------------------------------------- the published outcomes for these specialist clinics identify that at the completion of the unit students should: 341 time to rework the brand ‘clinical legal education’1 mary anne noone introduction at the tenth international journal of clinical legal education, the involvement of more than 200 participants from 22 different countries and jurisdictions highlighted the varying circumstances and challenges facing clinicians around the globe� the conference discussions were vibrant and often inspiring� the conference themes were: clinic for all? should clinic integrate into traditional legal teaching? should all students have the opportunity to do clinic? should clinics engage more with the profession? it was not the first time these themes have been addressed at clinical legal education conferences� they are perennial issues for the clinical legal education movement and their merits have been forcefully argued over several decades� for many of those attending the conference, the definitive answer to all four questions is “yes”� clinical legal educators can readily recite a litany of reasons why clinical legal education is a preeminent form of legal education� the benefits for students, the communities they serve and the legal profession are clearly apparent to clinicians� these positive attributes have been recognised in a range of different documents reviewing legal education� however the real challenge is how to make clinic for all students a reality� how can we make this happen? in reflecting on this question i wondered why if the merits of clinical legal education are so obvious, why is it that we do not have clinic for all? why isn’t clinical legal education an integral part of legal education? why don’t all students get the opportunity to undertake clinical legal education and why isn’t the legal profession advocating for clinical legal education to be a mandatory aspect of law degrees? obviously the answers to these questions are going to be jurisdiction and university specific� in this paper i address one possible response, the branding of clinical legal education� although my comments are informed by what is happening in australian university sector and my recent work with five australian clinicians in our best practices project,2 i hope my remarks have some common resonance to differing clinical legal education environments� 1 this paper given as a keynote address at the 10th international journal of clinical legal education conference in july 2012 durham, uk� 2 evans, a�, cody, a�, copeland a�, giddings, j�, noone m�a� & rice s�, best practices australian clinical legal education office of teaching and learning 2013 accessible at http://www�olt�gov�au/resources?text=clinical legal education ; see also strengthening legal education by integrating clinical experiences http://www�law�monash�edu�au/ about-us/legal/altc-project/ � 342 international journal of clinical legal education issue 19 carer’s victoria story to put the focus of my paper in context i recount a short story� i am a board member of a not-forprofit organisation representing carers� it works to support and advocate on behalf of carers and caring families�3 the organisation is primarily reliant on government funds but it has recently gone through a strategic planning exercise and wants to decrease its reliance on government funding and increase non-government funding� this would enable the organisation to become sustainable into the future and be more involved in advocacy and policy work� as part of this process, the organisation engaged a consultant company to help with fundraising and organising fundraising events� however before the company took on the job they did an informal survey� they went out into the city centre and asked random people what they understood a carer to be? had they heard of the organisation? what did they think the organisation did? and finally would they give money to such an organisation? the results of the survey indicated people were confused about who was a carer, that they did not know the organisation but generally indicated the work of the organisation was worthwhile and said they might donate money to support such an organisation� the consultants concluded that before they could increase fundraising capacity of the organisation, they must create greater awareness of the brand of carers victoria� the public needed to know about carers and the role of the organisation before there would be an increase in donations� this experience resonated for me in the context of this conference’s themes and the work we have been doing on best practices in clinical legal education in australia� in order to achieve ‘clinic for all’ and integrate clinic into traditional legal teaching i suggest we need to improve our brand awareness� we need to have a clinical legal education brand that deans, faculty, students and the legal profession identify and want to be involved with� in order to improve our brand, at least three fundamental questions need addressing: what is the current clinical legal education brand? what are the competing brands? and what could be the cle brand? i explore each of these topics in the following discussion� however there is a preliminary issue that needs clarification� what is a brand? before addressing what is the clinical legal education brand i needed to learn about branding as i am a novice in the discipline of marketing� through web based research i learnt that branding creates visibility; convinces supporters of the commodity/ organization/services’ value; and encourages them to purchase or provide funds� brands are the cultural phenomenon of our time. branding is no longer just about corporations, products and services…. today towns, regions, sports, museums, consumer groups and charities are all branded and have strength of identity, cohesion and a defining role�4 3 carers victoria http://www�carersvic�org�au/ accessed 30/8/12 4 3548qca: branding http://www3�griffith�edu�au/03/stip4/app?page=courseentry&service=external&sp=s354 8qca accessed 7/7/12� 343 time to rework the brand ‘clinical legal education’ wikipedia states: a brand is a “name, term, design, symbol, or any other feature that identifies one seller’s good or service as distinct from those of other sellers. a concept brand is a brand that is associated with an abstract concept, like breast cancer awareness or environmentalism, rather than a specific product, service, or business. brand is the personality that identifies a product, service or company (name, term, sign, symbol, or design, or combination of them) and how it relates to key constituencies: customers, staff, partners, investors etc. 5 [1] individuals want to be part of a brand because of what it says about you and signifies you are part of a particular group� according to a provocative report by an australian brand agency bastion brands, the top three brands in australia are salvation army, the hells angels and apple� the report found they were the most effective brands because consumers understood what they believed in, felt they could belong to the brand and would change their behaviour for it�6 all universities are involved in branding and marketing� they create message packages to sell their product�7 for instance university of sydney states: the university’s brand goal is to achieve a cohesive brand presence and a clearly defined distinctive image in the market. this is much more than designing a logo – it’s about the active management of how the university is perceived and creating a clearly defined, differentiated, sustainable brand over time. 8 and the university of melbourne: through consistency and dedication to brand principles we build recognition and maintain brand loyalty to ensure that the experience of the university of melbourne brand for all our key stakeholders is meaningful, inspiring, and differentiates us from our competitors�9 a related example illustrates how governments also are involved in the branding of education� the australian parliamentary secretary for trade, justine elliot recently announced a new brand for australia’s international education sector, future unlimited� the initiative was claimed to “refocus attention on the benefits of australian educational qualifications, and the doors they open for international students”� the minister claimed, in the past australia has relied on its affordability, spectacular natural environment and friendly lifestyle to attract overseas students however increased competition caused a rethink�10 checco suggests that a brand needs to answer the questions: who are we? what do we do? how 5 http://en�wikipedia�org/wiki/brand#cite_note-0 accessed 7�7�13 6 governance & management pty ltd� http://www�governance�com�au/board-matters/fx-view-article� cfm?loadref=2&article_id=b17e7f62-d942-b207-c0b4f166c9e8b895 accessed 7 july 2102 7 victoria neumark, what’s in a name? the value of a good university brand guardian�co�uk 3 april 2012 http:// www�guardian�co�uk/higher-education-network/blog/2012/apr/03/branding-universities accessed 10 october 2012 8 http://sydney�edu�au/ups/orders_quotes/branding�shtml accessed 10 october 2012 9 http://marketing�unimelb�edu�au/branding/index�html accessed 10 october 2012� 10 http://ministers�dfat�gov�au/elliot/releases/2011/je_mr_110607�html accessed 10 october 2012� 344 international journal of clinical legal education issue 19 do we do it? and why should anyone care? 11 what is the brand ‘clinical legal education’? if a survey was conducted of a random selection of people in the main street and they were asked what do they know about ‘clinical legal education’? what do they think it means? do they think it is a good thing? it is most likely that, like the carers example above, there would be ignorance, confusion and maybe general uninformed support� more importantly, what if this survey was done within the legal profession, academia or potential law students? quite likely there would be more awareness but also significant confusion� as checco posits, would they truly understand what we do? have we made it clear why they should support and align themselves with clinical legal education in a meaningful way? do they understand the impact clinical legal education programs have in the community? why would they choose to support clinical legal education over other legal education developments?12 at the conference i conducted a short exercise where participants were asked to think of a word or short phrase that might encapsulate what the clinic legal education brand meant to them� the responses included the following words: • practical • hands on • experiential • providing services to those in need • social justice • teaching ethical lawyering • skills based • sexy!!! the concept of clinical legal education is not widely understood and there is no clear identifiable brand� in australia, the acronym cle gets confused with continuing legal education for lawyers and community legal education� additionally there is no common visual image for clinical legal education� an internet search for images of clinical legal education reveals the predominant image of students sitting around a table or in a court room, photos of individual clinicians and images of conference locations!13 the images of students involved in clinical legal education are not all that different from other forms of legal education or education more broadly� there is certainly no readily identifiable symbol or image for clinical legal education� it is often associated with the symbol for justice, the scales or 11 checco, larry branding for success a roadmap for raising the visibility and value of your non-profit organization 2005 trafford canada p 40 12 checco, larry branding for successa roadmap for raising the visibility and value of your non-profit organization 2005 trafford canada p 17 13 http://www�google�com�au/search?q=images+of+clinical+legal+education&hl=en&gbv=2&um=1&tbm=ischt ab=wi&oq=images+of+clinical+legal+education&gs_l=img�12���396312�396312�0�397922�1�1�0�0�0�0�94�94�1�1� 0���0�0�ogvezkn2qas accessed 9 july 2012 345 time to rework the brand ‘clinical legal education’ court rooms but this does not differentiate it from other forms of legal education� the term clinical legal education covers many different endeavours� clinical legal education is diverse in its form and substance� in the best practices project in australia we found an amazing diversity of developments� we defined clinic as: ‘clinic’ or clinical legal education (cle) is a significant experiential method of learning and teaching� cle places law students in close contact with the realities, demands and compromises of legal practice� in so doing, cle provides students with real-life reference points for learning the law� cle also invites students to see the wider context and everyday realities of accessing an imperfect legal system� clinical pedagogy involves a system of self-critique and supervisory feedback so that law students may learn how to learn from their experiences of simulated environments, observation and, at its most effective level, personal responsibility for real clients and their legal problems� cle is, in summary, a learning methodology for law students that compels them, through a constant reality check, to integrate their learning of substantive law with the justice or otherwise of its practical operation�14 we identified five different approaches to provding clinical legal education� they are • in-house live-client clinic • in-house live-client clinic, with some external funding • external live-client clinic/ agency • externships/internships/placements • clinical components in other courses, including simulation15� those who seek to expand and promote clinical legal education often face opposition from other academic colleagues� critics or non-supporters claim that clinical legal education is not ‘real’ legal education or that it is not ‘academic’ or intellectually rigorous� a common response from university decision makers is that clinical legal education is expensive� certainly it is resource intensive� the challenge for those convinced of the benefits of clinical legal education is to develop a ‘brand’ that is attractive and appealing to those with the funds� how to create a positive/persuasive brand for clinical legal education? although branding is used intensively by educational institutions, i was unable to locate a relevant reference� instead, the analysis in a book by checco aimed at not for profit organisations, branding for success: a roadmap for raising the visibility and value of your nonprofit organization, provides a simple five-step process addressed at assisting an organization develop successful branding�16 although the focus is not for educational environments, i suggest the basic principles are applicable to the context of clinical legal education� 14 evans, a�, cody, a�, copeland a�, giddings, j�, noone m�a� & rice s�, best practices australian clinical legal education office of teaching and learning 2013 p 20 15 ibid� 16 checco, larry branding for successa roadmap for raising the visibility and value of your non-profit organization 2005 trafford canada; checco’s book, reviewed at http://nonprofit�about�com/od/nonprofitpromotion/fr/branding� htm accessed 5 july 2012 346 international journal of clinical legal education issue 19 the five steps checco describes are: 1� conduct a swot analysis� 2� review your swot analysis for brand messaging opportunities� 3� determine what messages your audiences want or need to hear� 4� create a “messaging package�” 5� before finalizing your message package, go back to your focus group� 1. conduct a swot analysis. a swot analysis is commonly used in strategic planning exercises� it is an acronym for strength, weaknesses, opportunities, and external threats� ideally participants in a swot analysis of clinical legal education would include all stakeholders including the dean, other non-clinical colleagues, clinical staff both academic and administrative, students, local legal profession� most clinical legal educators can easily cite the strengths of clinical legal education but what might be the strengths for other stakeholders not just students, clinical teachers and clients? checco suggests a series of questions for use in each part of the swot analysis� 17 i have adapted these to assist those seeking to promote clinical legal education: • “strengths what do we do best? how do we want our target audiences (colleagues, students, legal profession) to view us? what distinguishes us from our competition? • weaknesses in what ways do we have trouble clearly explaining to people outside our field what we do? how much does our university/law school know about branding, and how effective will the university/colleagues be in promoting and protecting our brand? • opportunities can we identify an expanding market for clinical legal education? what is the current educational landscape and what are the current educational developments? • threats are there external factors that would prohibit clinical legal education from promoting our brand? who/what are our competitors? how much do we know about them?” 2. review your swot analysis for brand messaging opportunities. in reviewing the swot analysis, most clinical legal educators could articulate what they consider to be the strengths of clinical legal education and how it is distinguishable from other forms of legal education� although there may be disagreement between clinicians about the relative merits, what will be just as instructive is the discussion about weaknesses and why the merits of clinical legal education are not clear to other stakeholders� checco suggests the analysis focus on “what have you learned about who you are, what you do, how you do it, and why anyone should care?” 17 ibid p 45 347 time to rework the brand ‘clinical legal education’ 3. determine what messages your audiences want or need to hear. this point is most relevant to further the promotion of clinical legal education� the swot analysis may reveal that “what you might want to say about your organization is not what your audiences want to hear”18� an example checco uses relates to provision of affordable housing� for years, proponents of such housing emphasized the needs of the people being served� but audiences did not like the idea of “subsidized” housing for “needy” people in their communities� when the message was changed to emphasize the positive impact such housing would have such as tax benefits, shoppers to help maintain a downtown, or diversity in the schools, such housing became much more palatable to communities� for at least three decades, those involved in clinical legal education have emphasized a range of benefits in their promotional material� for instance in the australian best practices report we state that clinical legal education has the potential to: • help students reflect on and analyse their experiences; • develop student awareness of law in the context of society; • engage students in deep and active learning, with timely, rich feedback; • develop student emotional skills, values, responsibility, resilience, confidence, self-esteem, selfawareness and humility; • move a student towards responsible professional identity; • sensitise students to the importance of all relationships – including with clients, students, professionals; • benefit from student-centred learning, which comes out of flexible and adaptable approaches; and • educate students to become effective, ethical practitioners�19 given the still marginal state of clinical legal education (in most countries) as indicated by the conference themes, perhaps we need to reassess what other perspectives on clinical legal education could be highlighted� checco suggests that to complete this step in the process, it is useful to survey a representative number of your audience� he suggests a short survey to give a better understanding of (i have adapted the questions for clinical legal education): how they currently perceive clinical legal education? what more they would like to know about clinical legal education and what it involves? what key words come to them when they think about clinical legal education? what kinds of messages they think clinical legal education brand needs to convey? 20 18 ibid p 51 19 evans, a� cody a�, copeland a�, giddings j, noone ma� & rice s�, (2012), best practices australian clinical legal education p 12 20 checco, larry branding for success a roadmap for raising the visibility and value of your non-profit organization 2005 trafford canada p 53 348 international journal of clinical legal education issue 19 4. create a “messaging package.” the messaging package includes a tagline, a mission statement, a positioning statement, supporting statements, and a logo21� as checco says, a ‘messaging package’ is simply a compilation of the core messages you want your brand to convey. its purpose is to help you stay on message whenever you communicate information about your organization.22 a tagline is a “catchy, quick-identifying reference, usually no more than five to seven words in length’� good taglines elicit “an emotion or an energy that people tend to gravitate to naturally, something they can associate with that is positive and good”�23 some current examples of taglines for clinical legal education are: ‘beyond the classroom’24, ‘real, relevant reflective and rad’ and ‘real, committed, active’� once those involved with clinical legal education have clarified the message they wish to convey, ideally assistance could be sought from the relevant university marketing section or staff� 5. before finalizing your message package, go back to your focus group. checco recommends this final step in order to ensure the words that have been chosen have the meaning intended for the audience� he gives examples of words carrying different meanings to different groups� he cautions, “language is a powerful tool� it forms our images, thoughts, opinions and actions� therefore, when defining your brand, choose your words wisely”�25 clinical legal education: opportunities and threats one of the steps in the swot analysis is assessing opportunities and threats� for those interested in improving the brand of clinical legal education, the following questions need to be addressed: what are the competing brands or threats? and what brands could we align with ? related developments in tertiary education in order to answer these questions we need to have an understanding and awareness of other current developments in the tertiary sector� some related examples from the australian context are service learning, community engagement, experiential learning and work integrated learning� these developments are also occurring in other countries� are these developments threats or potential opportunities for clinical legal education? despite being involved in clinical legal education for several decades, until recently i was personally unaware or disinterested or dismissive of these developments� however at the beginning of 2012, my university held workshops in service learning given by dr trae stewart26 and also one by 21 checco p 54 22 ibid 23 p 55 24 law school, university of new south wales http://www.law.unsw.edu.au/current-students/beyond-classroom 25 p 61� 26 http://www.latrobe.edu.au/ctlc/workshops/schedule.php?fldworkshoptid=4 accessed 9/7/12; http://www.aucea. org.au/events/visiting-scholars-program/ accessed 25/10/12� 349 time to rework the brand ‘clinical legal education’ barbara holland on community engagement27� i attended these workshops and was surprised when i was called on to describe our clinical legal education program as an example of the university’s service learning and our ongoing relationship with local community legal service as a strong example of community engagement� the clinical legal education program has generally enjoyed strong support from my law school but this series of events made me reflect on what other opportunities there were to seek further support to expand and consolidate our clinical program� i began to explore what these developments involved� i discovered that a small number of other clinicians had already written on the synergies that might exist�28 experiential learning generally experiential learning encompasses clinical legal education� put most simply, experiential learning is ‘learning by doing’ however many proponents state that to get the most out of the learning experience there should also be feedback, reflection and application of new skills and ideas�29 the various developments including service learning, community engagement and work integrated learning all adopt experiential learning as their pedagogical base� many law schools include, under the banner of experiential learning, their clinical legal education programs� for example yale law school30 and at new york law school there is the office of clinical and experiential learning31 and at university of new south wales there is a director of experiential learning32� service learning the national service-learning clearinghouse in the us describes service learning as “a teaching and learning strategy that integrates meaningful community service with instruction and reflection to enrich the learning experience, teach civic responsibility, and strengthen communities”�33 it is an approach to education that applies to all levels of education and not just focussed on tertiary institutions� the national service-learning clearinghouse gives this example of what service learning looks like� 27 sponsored by engagement australia (formerly australian universities community engagement alliance) http://www. aucea.org.au/ . 28 blissenden, m�, “service learning: an example of experiential education in the area of taxation law” (2006) 16(1&2) legal education review 183; giddings j�, ‘two-way traffic: the scope for clinics to facilitate law school community engagement’ in keyser, p, kenwrothy a� & wilson g(eds), community engagement in contemporary legal education: pro bono, clinical legal education and service-learning (2009 haltstead press canberra ) p 40; morin, l� & waysdorf s�, the service-learning model in the law school curriculum: expanding opportunities for the ethical-social apprenticeship (2011-12) 56 new york law school law review; smith, l�, ‘why clinical programs should embrace civic engagement, services learning and community based research’ (2003-04) 10 clinical law review 723 29 smith p 725-727� 30 http://www�law�yale�edu/academics/clinicalopportunities�htm 31 http://www�nyls�edu/academics/jd_programs/office_of_clinical_and_experiential_learning/ 32 http://www�law�unsw�edu�au/current-students/beyond-classroom 33 ‘what is service learning? ‘ on national service learning clearinghouse us websitehttp://www�servicelearning� org/what-service-learning accessed 9 july 2012 350 international journal of clinical legal education issue 19 if school students collect trash out of an urban streambed, they are providing a valued service to the community as volunteers. if school students collect trash from an urban streambed, analyze their findings to determine the possible sources of pollution, and share the results with residents of the neighborhood, they are engaging in service-learning� 34 at a tertiary level, service learning typically involves the student engaging with a non-government or community organisation to experience work-integrated learning and citizenship in this particular context� “students apply what they have learnt in the classroom to address priorities in the community in partnership with that community.”35 smith argues many high quality clinical legal education externships fall into the category of ‘service learning’ courses�36 she suggests that clinicians and students can rely on “service-learning movements and theories for pedagogical theory and support”�37 there is some indication that law academics, not clinicians, are embracing service learning�38 community engagement the australian catholic university defines community engagement as the process that “brings the capabilities of its staff and students to work collaboratively with community groups and organisations to achieve mutually agreed goals that build capacity, improve wellbeing, and produce just and sustainable outcomes in the interests of people, communities, and the university”�39 the peak body engagement australia has set out the following principles applying to the engaged university: 1� university community engagement is based on a mutually beneficial exchange of knowledge and expertise between universities and communities 2� engaged research is designed, managed and disseminated as a partnership that addresses both academic and community priorities� 3� engaged learning and teaching programs respond to individual and community needs and opportunities and links to specific learning goals and experiences for students� programs are designed and managed in partnership with communities, and are socially inclusive and globally and locally relevant�40 in the usa the term ‘civic engagement’ is used� engagement describes “mutually beneficial 34 ibid� 35 ‘service learning’ griffith university http://www�griffith�edu�au/gihe/resources-support/service-learning accessed 9 july 2012 36 smith p 729� 37 bid p 731 38 blissenden, m�, “service learning: an example of experiential education in the area of taxation law” (2006) 16(1&2) legal education review 183 39 ‘definition of community engagement’ australian catholic university http://www�acu�edu�au/about_acu/ community_engagement/ce_at_acu/definition/ 40 http://www�aucea�org�au/about/structure-charter/ accessed 9 july 2012� 351 time to rework the brand ‘clinical legal education’ community-university knowledge-based relationships”�41 this approach encourages academics and students to engage with the community through research activities and sharing knowledge to improve and enhance jointly identified issues� interestingly jonny hall (the 2012 ijcle conference organiser) is associate dean region, engagement and partnerships at university of northumbria42� universities are increasingly focussed on ‘engagement’ with their communities� work integrated learning work-integrated learning (wil) describes directed or supported educational activities that integrate theoretical learning with its application in the workplace�43 it is a form of experiential learning� the australian collaborative education network (acen) list the following forms of work integrated learning: • internships • cooperative education • work placements • industry based learning • community based learning • clinical rotations • sandwich year • practical projects� 44 clearly in these various developments there are overlapping features with clinical legal education and potential commonality of purpose� for instance at griffith university (in australia) they are exploring the expansion of service learning as a component of its growing work-integrated learning (wil) profile�45 this is because service learning is similar to wil in that it involves the intentional integration of academic theory with practice, with the practice component providing a community benefit� clinical legal education brand clinical legal education has things in common with these ‘competing brands’� clearly there are synergies between service learning, community engagement and clinical legal education� obviously they all encompass learning by doing� they have a pedagogical base of experiential learning� additionally, it could be argued that they all aim to engage students in providing services to 41 holland b, ‘institutional impacts and organisational issues related to service learning’ michigan journal of community service-learning (2000) p52-60 quoted in smith at n�44� 42 http://www�northumbria�ac�uk/sd/academic/law/staff/jonnyhall accessed 9/7/12 43 ‘what is work integrated learning?’ at http://www�flinders�edu�au/teaching/wil/ accessed 30/10/12 44 http://www�acen�edu�au/ accessed 9 july 2012 45 griffith institute for higher education service learning at griffith university http://www�griffith�edu�au/__data/assets/pdf_file/0006/351285/service-learning-at-griffith-university�pdf accessed 9 july 2012� 352 international journal of clinical legal education issue 19 community whilst being involved in a learning experience�46 is it advantageous to align the clinical legal education brand to these other brands? or if branding is about distinguishing a product or service from other competitors and garnering support how do we distinguish the clinical legal education brand? one of the challenging aspects for the brand ‘clinical legal education’ is that it refers to a great many endeavours� a survey of the international journal of clinical legal education and attendance at ijcle biannual conferences illustrates that globally there are many variations of clinical legal education� it refers to different pedagogy, different sites of teaching and often different purposes of teaching� as illustrated in recent australian research it can encompass live-client clinics, externships/ internships/ placements and clinical components in other courses, including simulation�47 ideally we need to find a clinical legal education brand that is inclusive of all the various clinical activities and simultaneously highlights our distinctiveness� what words could be used to describe this variety of clinical experience but is also illustrative of what binds them together? the australian research found that the current features of australian clinical legal education are: • strong focus on service to the community, • discussion of law in context • involvement in a range of legal activities including individual case work, law reform, legal research and community legal education • located in not for profits, community legal centres and legal aid organisations • current growth is in externships� 48 my preference, in context of australian experience, is that we develop a brand that represents the benefits for students, community and legal profession� a brand that indicates this approach to legal education is the best way for students to integrate knowledge and at same time learn about the complex nature of justice and injustice� i would like a tagline that includes reference to justice� perhaps “developing justice’ as this would have two meanings: developing our students as well as seeking to pursue justice� additionally we could align with existing brands for instance, the global alliance for justice education already has a logo and a developed network of “persons committed to achieving justice through education”49� 46 bloch f� and noone m�a� (2010), ‘legal aid origins of clinical legal education’ in bloch f�(ed) the global clinical movement: educating lawyers for social justice oxford university press 47 evans, a�, cody, a�, copeland a�, giddings, j�, noone m�a� & rice s�, best practices australian clinical legal education office of teaching and learning 2013 p 20� 48 evans, a� cody a�, copeland a�, giddings j, noone ma� & rice s�, (2011) strengthening australian legal education by integrating clinical experiences: identifying and supporting effective practices: regional reports http:// www�law�monash�edu�au/about-us/legal/altc-project/regional-reports/index�html 49 for further details see http://www�gaje�org/; organisations like global alliance for justice education bring together clinical legal educators with a common interest in social justice and broader justice themes but not all clinical legal education has this focus� 353 alternatively we could align with service learning and/or community engagement� if the purpose is to achieve ‘clinic for all students; integrate clinic into traditional legal teaching; and have clinics engage more with the profession? we should explore all opportunities� clinical legal education can benefit from being associated with the tertiary education movements discussed above�50 in this way we could encompass all the variations of clinical work� some universities and clinics are already doing this and have benefited as a result�51 could clinical legal education be named something else? if the objectives coincide and the students experience is good and the cause of improved access to justice is achieved what does it matter if a school does not have clinic but instead ‘service learning’ or ‘community engagement’? finally it is critical to reflect again on checco’s steps and advice� if we want the brand clinical legal education to capture the imagination and support of students, colleagues, deans, legal profession and funders, we need to seek their views because the brand needs to be something they relate to, not our preferences� the brand developed needs to ‘speak’ to the jurisdiction specific legal profession and academics, university managers, law school students and communities served� one of the traits i admire amongst my clinical colleagues is their preparedness to listen to new ideas, be innovative and flexible� if we truly want to ‘expand the market’ that is ‘grow the sector’ and make ‘clinic for all’ a reality, we need to be attuned to other educational trends and movements in the tertiary sector and utilise these opportunities� the brand ‘clinical legal education’ has not worked to achieve ‘clinic for all’ to date� it is time to rework the brand ‘clinical legal education’� 50 smith, l�, ‘why clinical programs should embrace civic engagement, services learning and community based research’ (2003-04) 10 clinical law review 723 51 morin, l� & waysdorf s�, the service-learning model in the law school curriculum: expanding opportunities for the ethical-social apprenticeship (2011-12) 56 new york law school law review time to rework the brand ‘clinical legal education’ editorial what have you all been reading? elaine hall northumbria university, uk elaine.hall@northumbria.ac.uk i would like to start this editorial with a couple of apologies. the first is the lateness of this edition, planned for february and delayed by me taking ages to work out how to embed video. the second is that i misjudged you, dear clinical scholars. i thought that you went straight to the ‘meat’ and didn’t pause to read these editorial amuse-bouches. however, while studying the download reports for the journal i realised that some of you do and from now on, i will make extra effort to include something nutritious. the ijcle has been online since 2014 and in that time, more than 20,000 papers have been downloaded. a quick analysis of the data gives some interesting messages: the ten ‘digital age’ issues have an impressive performance in bringing clinical scholarship to a wider audience, over 10,000 downloads and an average of over 300 per paper, which is on a par with established journals like the law teacher. the special issue on assessment attracted the most attention as a collection of papers – so please send your ideas for special issues to me! and currently the most popular paper is paul mckeown’s law students’ attitudes towards pro bono. this seems likely to change (sorry paul!) not only as new papers are published but as the visibility and use of papers in the archive continues to build. as the numerate amongst you will already have noticed, half of all downloads are from the ‘pre-digital’ editions, despite many of these being available via heinonline. this data cheers me enormously for at least two reasons: 1. we can demonstrate the impact of clinical scholarship and the vitality of the audience for the ijcle: it is worth sending your papers here. they will be read, challenged and contribute to the clinical discourse. 2. clinical scholars are heeding the messages from recent systematic reviews[footnoteref:1] and heading back into our history to elicit the lessons buried there. we are becoming more critical and sophisticated in using our traditions, as well as engaging beyond our disciplinary boundaries. [1: mkwebu, t ijcle 22, 3, 2015; dunn ijcle 24, forthcoming.] to add a degree of randomness or serendipity to this process, i’m instituting an idea from my favourite food blog, smitten kitchen – the archive dive. therefore from this issue we direct your attention back to volume 11 where you’ll find papers on multicultural (ada okoye ordor) and indigenous (anna cody and sue green) perspectives, an overview of cle within law (margaret barry) and a paper on ethics (kevin kerrigan). these are still hot topics and i’m delighted to say that you can catch some of these clinicians at the ijcle, encle and cleo conference in july this year – more details below. meanwhile, in this edition, we have an important paper on research methods to investigate the impact of clinic from lisa bliss, sylvia caley and leslie wolf, crystallising the learning from their intensive programme of investigation at georgia state university. many of you who have been able to take part in their interactive seminars at gaje/ijcle at anadolu university in eskisehir, turkey in 2015 and ijcle/accle at the university of toronto in 2016 have been asking for more and we are delighted to be able to provide this paper. we return to the debate around assessment and the value of clinical education for students with the first of our practice reports from patrick koroma and nicola antoniou which looks at the perceived benefits of cle. do our students value their clinical experience and can they parlay that into employment? if these things are not simple and linear, is that in part due to what we as academics appear to value, in part due to the values of the profession and in part due to issues of translation? in the second practice report, we bring you the artefacts from a very exciting day conference held at london south bank university on the 11th november 2016. the report contains the material shared by the participants before the event and videos of the clinicians describing their work and answering questions – click on the pictures on the last page to access the videos, you may need to right click then select ‘open hyperlink’. and finally, the inevitable reminder that three organisations are coming together for the 2017 conference. registration is open and we look forward to welcoming you to newcastle! ijcle – encle cleo the international journal of clinical legal education in association with the european network for clinical legal education and the united kingdom clinical legal education organisation conference 3-5 july 2017 at the university of northumbria, newcastle upon tyne, uk “bringing it all together: clinical legal educators in the 21st century university” clinicians wear many hats: teacher, group facilitator, project manager, lawyer, researcher, mentor, activist, administrator, supervisor, academic, fund raiser, practice manager, collaborator, role model, counsellor… this year’s conference continues our exploration of the key, often overlapping, issues arising for clinical legal education in the 21st century from the clinician’s perspective; juggling sometimes competing priorities and often making difficult choices. these will be explored by our keynote panel: lisa bliss, mary anne noone, shuvro sarker and veronika tomoskova. our welcome keynote comes from professor kevin kerrigan: "if i ruled the world can clinic be required in every discipline?" "such happiness as life is capable of comes from the full participation of all our powers in the endeavor to wrest from each changing situation of experience its own full and unique meaning." john dewey, the granddaddy of experiential learning, was not referring here to the discipline of law. his was a broad pedagogic philosophy that was not discipline-specific. it is well known (although not always acknowledged) that clinical education was not invented by lawyers and although clinical legal education has developed into a distinctive and highly successful strand of experiential learning, it remains a methodology that is at least potentially applicable right across the academy. where university education is closely linked to professional training or development, there is often a motivation to deploy a clinical approach but it is much more challenging to envisage a clinical approach right across the subject spectrum. i am unaware of any institution that has attempted to deliver a comprehensive suite of academic programmes via meaningful clinical engagement. during the selection process for my current role i pitched the idea that we could develop a live client clinical approach right across the undergraduate curriculum. the good news was i got the job. the bad news was that they took my idea seriously. so, can clinic be required in every discipline? even if it can, does it make educational sense? maths clinic anyone? 4 conducting a community needs assessment: a student-client approach to clinic research shristi banerjee, sardar patel nagar, india raveena rao kallakuru, wb national university of juridical sciences, india yamini kumar, university of mumbai, india maithili pai, mumbai, india nirmal kumar upreti (advocate), kathmandu, nepal professor david tushaus, missouri western state, u.s.a.[footnoteref:1] [1: please note that dr. bruce moseley, u.s.a.; advocate sumit kapoor, india; and manju gautam, nepal contributed significantly to this article through their work on this project. christina clark, b.s. candidate in criminal justice with a concentration in legal studies, missouri western state university, helped edit this article.] abstract this paper will discuss how to create a research team and conduct a community needs assessment. the focus will be primarily on the process of conducting such research. the process is adaptable to either an international team of academics, professionals and students or it can be conducted by a clinic in its community without outside collaboration. results of the research will be discussed on a minimal basis. the goals of a law school legal aid clinic should include at least two things. one is to improve the education of students. the other is to provide access to justice for members of the community. these goals may be met in many ways and through many different projects. forming a research team of academics, professionals and law students to study a legal issue, develop a survey and find out what the community needs are in terms of legal assistance provides many excellent learning tools for students. students develop research and writing skills over the course of a research project that includes conducting a literature review, interviewing skills when they survey the community, best practices in being client/community centered and presentation skills if they present their results at a conference as was the case in the study to be discussed here. we often think we know what is needed in our community, or by our client, from our experience; but best practices and professional responsibility point toward finding out what the community or client wants in order to serve their legal needs. introduction there are around four billion people excluded from the rule of law worldwide. this creates a great need to design legal aid systems where law students provide at least some services. part of this process is to determine those with the greatest need in a community and address those needs first.[footnoteref:2] that is where community needs assessments come in. [2: commission on legal empowerment of the poor, making the law work for everyone, rep. vol. i. new york: commission on legal empowerment of the poor and united nations development programme (2008) available at http://www.undp.org/legalempowerment/reports/concept2action.html] community needs assessments are an integrated service learning tool. they provide students with a means to learn by doing, in the topic of study they are engaged in. such service learning improves student analyses of issues, their perspectives on problem solving, and critical thinking skills.[footnoteref:3] community needs assessments are different than the scholarly research typically done in the global clinical legal research movement.[footnoteref:4] scholarly work has tended to focus on the creation and sustainability of clinical legal education programs. a majority of the articles have been by scholars in the u.s. and europe, often about the clinics in those countries; but other countries as well.[footnoteref:5] clinics can use research done to conduct community needs assessments in several ways that are not typically attainable with other kinds of research. for one, needs assessments have purposes similar to interviewing a client. you have to know what the problem is and how you can help before you can assist any client. needs assessments model a professionally responsible way to help a community, much like you would do research to help a client. needs assessments help determine programs that can best address key problems, as well as the agencies in the community that a legal aid clinic or lawyer can collaborate with.[footnoteref:6] needs assessments can also be used to document problems that the community needs to address. the documentation can then be used to advocate for reforms on a system-wide basis, either through legislative or court advocacy.[footnoteref:7] [3: eyler, janet & giles, dwight e., jr. where’s the learning in service-learning? (jossey-bass, 1999).] [4: the global clinical movement: educating lawyers for social justice 313-16 (frank s. bloch ed., oxford university press 2011).] [5: mkwebu, tribe, ‘a systematic review of literature on clinical legal education: a tool for researchers in responding to an explosion of clinical scholarship’, 22 international journal of clinical legal education 3 (2015).] [6: access to justice assessment tool: a guide to analyzing access to justice for civil society organizations, american bar association, page 2 (2012), http://www.americanbar.org/content/dam/aba/directories/roli/misc/aba_roli_access_to_ju stice_assessment_manual_2012.authcheckdam.pdf. ] [7: ibid.] any law school legal aid clinic or research class can engage its students in conducting a community needs assessment. the study here was carried out by volunteer students and advocates with the law schools’ permission; but not under any law school clinic or program. a needs assessment can be done on any one issue, several issues or can focus on community knowledge of legal rights and the community’s legal aid clinic without a focus on a specific issue. in any case, with any topic, ethical considerations must be addressed from the start of the project. ethical considerations and the process whether a community needs assessment is done through a clinic or as a separate project, ethical considerations are very important. these considerations begin at the inception of the project. in this case, the sensitive nature of domestic violence created several ethical issues to be addressed. project supervisors in india and nepal were not clinical law professors; but they were already educated as attorneys and working in the field as professionals. they were aware of cultural and ethical considerations and other issues involved in conducting research and surveys on such a sensitive subject. safety and security of students was a priority. selection of students to volunteer for the project focused on students who had knowledge and experience with working on domestic violence issues. the student volunteer selection process started with the circulation of a detailed advertisement highlighting the area of research in domestic violence and skills involved in carrying out the project, including research, communication and technology skills. the recruitment advertisement was drafted in a way to help students understand the subject and the requirement of community assessment research. recruitment looked at potential volunteers’ statement of purpose, their interest in the study and their resumé within the context of socio-economic issues around domestic violence. a detailed analysis of applicants’ statement of purpose and resumé was done to shortlist suitable candidates based on their interest and experience. a detailed telephone interview of shortlisted candidates was conducted to judge their capabilities to examine their skills in conducting surveys. candidates were questioned on the work they had done in the law and domestic violence; their ability to communicate in local languages effectively; their knowledge of the surrounding areas of the community and their ability to understand issues the community faces. the team of four volunteer students selected in india had all worked on matters relating to domestic violence beforehand and were conversant with the issue. one volunteer had interned in egypt and worked extensively on domestic violence. another volunteer was actively involved in child rights and also had interned in this field. a third volunteer had written articles and was involved in human rights work. the fourth volunteer was a member of the legal aid society and clinic at the law school. once selected, the volunteers spent many sessions discussing the ethics of the surveys, how to conduct the surveys and what to say. volunteers learned more about the issue through the literature review process. during the project the team[footnoteref:8] discussed the safety aspects of carrying out the questionnaire on multiple occasions. this influenced the team’s decision to not include certain questions in the questionnaire about sexual violence. supervisors went against the student team members’ wishes to ask these questions for safety concerns. regarding the possibility of harm, whenever a student surveyor felt she was going to an area that was less comfortable/familiar/safe, the student was required to be accompanied by another volunteer. [8: the team consisted of four indian students, nepali students, one nepali team leader who is an attorney and director of a ngo, one indian team leader who is an attorney and two law professors in the united states.] practice surveys were conducted before going into the field. advisories were developed regarding survey practices and safety. real time monitoring was done by getting in touch with volunteers by telephone and instant messaging, as well as email for less critical communications. choosing a topic as noted earlier, any access to justice topic is a legitimate focus of a community needs assessment. in the example to be discussed in this article, the team focused on domestic violence because it is a serious global problem, which is broadly defined to include all the acts of physical, sexual, psychological and economic violence. both the lack of awareness and the problems in access to justice are a catalyst in the growth of domestic violence. while attempting to gain a cultural perspective, it is crucial to not encourage violence in our attempt to ‘respect’ culture. this is one of the greatest challenges of advocacy and policy work. since both india and nepal address similar issues of domestic violence with similar laws, which includes physical, sexual and economic violence, our study was conducted in kolkata and kathmandu to explore the communities’ knowledge and attitudes toward domestic violence. when characteristics of domestic violence are defined, it is important to remember that these discussions are often influenced and sometimes tainted, by the conflicting political, cultural and social situations of various communities.[footnoteref:9] at the same time, we recognize this right to be free from violence as a universal right.[footnoteref:10] india’s “protection of women from domestic violence act” (pwdva) and nepal’s “domestic violence (offence and punishment) act” were adopted in the year 2005 and 2009 respectively. like india, nepal is predominantly hindu. nepal has its own cultural practices & values regarding the status of women and men. the shrutis and smriti, who influence some nepalese attitudes, consider women as dependent on men, creating unequal status in the society[footnoteref:11]. thus many families are male-dominated and treat women as commodities or child-producing machines. the domestic violence act of nepal[footnoteref:12] defines "domestic violence" as any form of physical, mental, sexual or economic harm perpetrated by a person against another person with whom he or she has a family relationship. this includes any acts of reprimand or emotional harm. the act further defines "domestic relationship" as a relationship between two or more persons who are living together in a shared household and are related by descent (consanguinity), marriage, adoption or are family members living together. the indian protection of women from domestic violence act (pwdva) law is similar; but includes verbal abuse as a form of abuse for which a woman can seek protection from the courts. [9: see elizabeth m. zechenter, ‘in the name of culture: cultural relativism and the abuse of the individual’, 53 j. of anthropological res. (2011).] [10: udhr art. 3, iccpr art. 6, 9; cedaw.] [11: according to manusmirti, men are independent and women are dependent on men. thus women are not even capable to take loans without consent of a husband or son. this was reflected in the “nyayashastra” document brought by king jayasthiti malla in the 14th century to regulate society.] [12: domestic violence (crime and punishment act) 2066 (2009).] a team of four students from the national university of juridical sciences, kolkata was selected to conduct the indian study under the guidance of professor david tushaus and bruce moseley in the united states. advocate nirmal upreti, an attorney and ngo director in nepal, agreed to conduct a parallel study in kathmandu. the research project consisted of various stages: research, writing literature reviews, developing a survey, conducting surveys, field work, data collection and assimilation. before the research was carried out three hypotheses were formed. the team of students predicted that people from the lower economic strata would be largely unaware that there is a legal recourse against domestic violence available to them. the team also thought they would find that the majority of domestic violence would take place amongst families who were uneducated or earned less, which is a common stereotype. finally, the team wanted to see if a majority of men would find domestic violence acceptable in cases where the woman is disobedient, especially men who earned less or had minimal educational qualifications. research process research into the facts and law of a case must be done to develop an understanding of a client’s legal problem. similarly, a community needs assessment must be done to identify the social justice needs of the community before a clinic can know how to best serve the people in its community. conducting research prior to doing the assessment is vital. the literature review will help the team to form the survey questions by researching on distinct topics. during the course of the project each student team member researched and wrote a literature review on a distinct topic. the topics that were covered included issues of domestic violence in india by the indian team, and in nepal by the nepali team. research was conducted on the laws relating to domestic violence, the effectiveness of these laws, and the remedies associated with overcoming the gaps in the law. the research material included scholarly articles, books, case laws, commentaries, newspaper articles, official reports, journals and other online sources. below are some of the team’s findings that helped inform the development of the surveys. the problem of domestic violence the problem of domestic violence, which is ubiquitous in society, includes dowry violence in india and nepal. dowry is a system where the bride’s family pays some amount, in either cash or kind, to the groom’s family. if there is a failure to meet the demands of the groom and his family at the time of the wedding, or sometimes afterwards, the bride is sometimes subjected to torture by the groom’s family, with whom she traditionally goes to live. in the year 2013, a total of 8083 cases of dowry death were reported in india, of which the conviction rate was only 32.3%.[footnoteref:13] the problem of domestic violence is not limited to dowry related torture; but also escalates to wife battering, cruelty, rape and other types of violence. ironically, marital rape is neither included within the definition of domestic violence in india nor is it punishable under any other law in india at this time. [13: crime in india 2013 compendium, national crime records bureau, ministry of home affairs, available at http://ncrb.nic.in/cd-cii2013/compendium%202013.pdf ] in the context of nepal, domestic violence is generally perceived as violence against women as most of the victims are women. action arising from a number of ngos and the government can be interpreted in this way.[footnoteref:14] the secrecy that surrounds domestic violence means that incidents are very rarely reported. data shows that mostly women seek legal assistance.[footnoteref:15] domestic violence is a chronic and under-reported crime as illustrated by the demographic health survey in nepal.[footnoteref:16] it found that three quarters of women who had experienced physical or sexual violence at some point in their lives had not sought any help – and two thirds had never mentioned the violence to anyone. the problem of not seeking care was particularly acute among women who had experienced sexual violence – only 7% had reported the assault. even when care is sought, it is rarely from the state sector – only 4% of demographic health survey respondents who sought care had been to the police, and 3% to medical services. the majority of the care-seeking women had relied on friends and family for care and support.[footnoteref:17] these findings led the dhs authors to conclude that “despite the efforts of the ministry of women, children, and social welfare and nongovernmental organizations to cater to victims of violence, the data suggest that few abused women are accessing these services”.[footnoteref:18] [14: domestic violence act enacted by the government has been formulated from the perspective of women. similarly, a unit has been created under the prime minister’s office to control domestic violence against women. almost all ngos working to end domestic violence have predominantly focused on women like worec nepal, insec etc.] [15: ‘fact on violence against women’ in nepal available at www.worecnepal.org] [16: national demographic health survey, 2011.] [17: ibid.] [18: ibid.] developing the survey developing the survey of community members is one of the most important parts of the project. the survey should result in the collection of a wide range of first hand quantitative data, qualitative data, demographics and valuable inputs through survey subjects’ comments. it is important for the survey to be a collaborative process involving the entire team. ideally, each student team member should develop questions the student thinks would be useful to find out from the community given what was found out in the student’s literature review. students are encouraged to review each other’s aforementioned research, literature review and paper leading up to the survey; but offer questions suggested primarily from their own research. access to all literature reviews is best accomplished through a secure, shared drive. in this case, the team used a google, educational account through professor tushaus’ university account. by using an educational account the google drive is a more secure environment for the research project.[footnoteref:19] [19: the google educational account, with its enhanced features, is considered secure enough for the university to store student specific information, the privacy of which is protected by the family educational rights and privacy act (ferpa), available at 20 u.s.c. § 1232g; 34 cfr part 99. ] any survey team will bring to the process a point of view that will impact the topic and how it is studied. there may be some overlap of questions proposed for the survey; but the process should create a bank of questions for the team to work with and choose from, which will be impacted by the teams’ preferences. the research team must then collaborate to edit these questions down to a manageable number that covers the demographics, knowledge and attitudes of the sample surveyed. in this research project, the team communicated with members from three different countries (nepal, india and the usa) via the internet to develop the survey. the literature review about domestic violence issues provided some different perspectives from nepal and india. the team wanted the two surveys to be identical, or as similar as possible, so that the results could be compared with each other. the india and nepal team members in this project did not have a lot of experience with writing survey questions. one way to address this problem is to ask one or more team members to research the issue of writing survey questions. the team members who conduct the research, and their peers who they will inform, will benefit from learning about striking a balance between quantitative and qualitative questions, using a likert scale[footnoteref:20] and including demographic questions. on this project, the team task was to keep the survey at a manageable length of two pages. the team wanted the survey to solicit sufficient data from each subject; but we did not want to have subjects refuse to do surveys or finish surveys because the surveys were too long or the subject became too sensitive. the entire team debated which questions were most important to include in the survey. the team must ultimately decide on how many demographic questions are necessary, which quantitative and qualitative questions are needed and whether any of the questions are too controversial. this is where the most conflict occurred in this project. there was agreement on many issues, including keeping the survey relatively short at two pages. the basic demographic questions to ask, including age, education and household income were easily agreed to. however, when it came to some controversial issues there were disagreements. [20: a likert scale is a popular rating system for survey research. respondents can indicate the extent of their agreement or disagreement to a given statement in a survey using a five or seven-point scale. the scale usually ranges from “strongly disagree” to “strongly agree”, which is what this research team used.] the kolkata law student team members wanted to include a specific question on sexual abuse in the survey. the student volunteers, all women, argued for inclusion in the survey of this question and issue. team leaders in both india and the united states did not question the value of such an inquiry. team leaders, however, were concerned about asking questions on sexual violence for two reasons. one, there was concern that the extra controversial nature of a question on sexual violence would result in subjects terminating interviews, resulting in incomplete surveys. the other reason was the concern that questions on sexual violence might put the survey team at greater risk.[footnoteref:21] the team engaged in healthy debate over this issue. a consensus was reached to avoid specific questions about sexual abuse; but open ended questions made it possible for subjects to volunteer information on this topic. [21: sensational reports of sexual abuse, especially the 2012 delhi gang rape, heightened the concern for safety. ] engagement of all team members in the research process from the literature review to the development of the survey questionnaire made it easier to develop and conduct the survey in both india and nepal. in this case, the very first draft questions were framed by the professor as the team members did not have much experience with surveys, quantitative and qualitative data collection or likert scales.[footnoteref:22] this issue was not anticipated, or one of the team members would have been tasked with researching survey development so that the student or students could take charge of survey development, as noted above. after professor tushaus developed a draft survey the team’s inputs were invited to comment on the substance and format of the survey. these questions were framed to test people’s awareness about the domestic violence laws, the existence of legal aid clinics, and victimization of people in domestic violence situations. these questions were just a framework that intended to cover the area of study. after debating over the questions, the team suggested to improve the survey by also inserting the age, gender, marital status, and income of the persons taking the survey. this ensured that the team kept track of whether it surveyed an almost equal number of people from different social backgrounds or the results might be skewed toward a particular group. [22: in a previous research project, some team members had experience in writing and conducting surveys and were able to develop their own survey questions quite well. the research team leader must be prepared to adjust to team strengths and weaknesses.] there was a lot of discussion regarding whether ‘sexual abuse’ should be listed as an option as a survey question when referring to the different forms of domestic violence. in light of india and nepal being relatively conservative societies, it was an issue of concern for the mentor to allow a female surveyor to administer that type of question, which is considered to be taboo in indian society. one indian team member felt that having our student volunteers, who were all women, ask about issues of sexual violence, might be too risky. this was particularly a concern given that the goal was to conduct the survey with a broad spectrum of the population in terms of demographics. we expected our surveyors to encounter a relatively equal number of men and women from a variety of socioeconomic and educational backgrounds. the concern was that sexual violence may be too sensitive a topic and cause some respondents to terminate the interview or, worse, become aggressive toward the volunteer student surveyor. it was also agreed to introduce ‘civil or criminal penalties’ in the option where the surveyors were to select the type of penalty associated with domestic violence because it was believed that people may not be aware of the exact nature of penalties associated with the crime. we realized that there existed certain discrepancies with regards to who the perceived inflictor of the violence could be, who the victim was, and what the definition of ‘violence’ itself was. it seemed rather shocking to team members from the united states that only ‘women’ could be victims of domestic violence under the law in the indian and nepal domestic violence protection order context. this was a matter of concern to members of the research team from the united states. to understand the reasons behind this, it would require one to understand the complex historical, political and social contexts in india. understanding this equips someone engaged in grass-roots level work to deal with the issue with a nuanced perspective. the implementation of india’s and nepal’s domestic violence protection acts and people’s understanding about domestic violence were important for the team to survey. in nepal and india, where both countries are predominantly hindu and have cultural practices indicative of a patriarchal value system, domestic violence is predominantly violence against women. so, the survey was developed to target results of domestic violence against women. survey training and administration everyone who conducts a survey must be trained in administering the survey. confidentiality is an important aspect to conducting surveys, similar to practicing law. in this way, law students involved in a research project learn valuable lessons and practice confidentiality as if they are working in a law office. if the survey is to be administered orally, you must give the survey in a safe, confidential environment. once paper surveys are completed, they are scanned by the surveyor and uploaded to a secure, educational account google drive folder dedicated to survey uploads. they will then be tabulated electronically, after which they should be destroyed. no names should be taken during the survey process, which is one of the few differences from a law office environment. survey volunteers should always conduct the survey in a safe environment. much of the survey best practices relate to best practices in a law office. surveyors, like law office personnel, should be trained to appropriately greet the interviewee, make that person feel comfortable, ask open-ended questions as well as close-ended questions, be organized and culturally aware and sensitive.[footnoteref:23] [23: stefan h. krieger, serge a. martinez, ‘performance isn't everything: the importance of conceptual competence in outcome assessment of experiential learning’, 19 clinical l. rev. 251, 292; william m. sullivan, anne colby, judith welch wegner, lloyd bond & lee s. shulman, educating lawyers: preparation for the profession of law 180-2 (jossey-bass, 2007).] safety concerns are always something to address no matter what the survey topic may be. the united states team leaders laid down certain rules for the nepal and the indian team, which included not going to remote places alone and not entering houses of respondents alone. after arriving on a common framework an institutional review board (irb) proposal was developed and submitted by professor tushaus. projects should involve the students in the irb process to educate them on doing research and the ethical and professional responsibilities involved in conducting research, which are similar to those in the practice of law. the irb process is designed to assure that the research being conducted protects the rights of human subjects participating in a research study. a key goal is to protect human subjects from physical or psychological harm. the process assesses the ethics of the research and its methods. it requires fully informed and voluntary participation by prospective subjects capable of making such choices and seeks to maximize the safety of subjects. it was agreed that the team would not survey people they knew personally. abiding by all these conditions, the most important one being anonymity of the survey taker, the team agreed to try to survey a broad cross section of the community. in particular, at least four different groups of people were to be surveyed, including the wealthy and educated class, the middle-educated class, the lower class (predominately uneducated), and working women who were predominately uneducated and engaged in unskilled work. response problems with the survey the survey was completed over a period of four weeks. from the team’s experience, most people agreed to take the survey, but not without some hurdles. the goal was a sample size that would provide a significant sample, preferably close to 100 for kathmandu, nepal and about 100 for kolkata, india. the team effectively reached its goal. the team noticed that some people, especially unskilled women who worked, were at first apprehensive about taking the survey. after learning that it was anonymous and of its purpose, they agreed to answer the questions. these women were unable to communicate in english, so the team decided to administer a parallel survey in the subjects’ language when required. since most of these women were also unable to read their own language, the team decided to translate the questions orally from the english survey instrument as the student volunteers conducted the survey. this was accomplished because some of the team members were fluent in the respondents’ language, which allowed for the survey to be translated orally while at the same time keeping uniformity. the ethical aspect of the survey was important to the team. the team kept the survey anonymous and no attempt was made to mold respondent opinions. surveys included likert scale quantitative questions as well as qualitative questions. a blank survey is available as appendix 1. as noted earlier, an area of concern that arises when researching and studying domestic violence is the engagement of legislation with society; specifically whether violence as defined in the legislation is reflective of the cultural situation of the country. for example, the indian pwdva includes ‘sexual violence’ within the ambit of violence.[footnoteref:24] however, while conducting the survey, we were confronted with simple problems such as explaining sexual violence to the respondent whom we surveyed. those administering the survey must not only be aware of the law, but also the society in which the survey is being conducted. for example, given that the topic of sex itself is not discussed openly in most of indian society, the indian team members were aware that explaining the concept of sexual violence (domestic violence itself is not spoken about very openly), would be difficult in at least some interviews. to do this would require an understanding of the social context. due to difficulties in obtaining data on a nationwide basis, statistical studies on domestic violence have been limited. most of the data is available with the indian national crime records bureau. it was found that on a regional basis, a lot of literature existed on domestic violence in uttar pradesh, although no state-wide data was found to exist. [24: the protection of women from domestic violence act, section 3(a): “..harms or injures or endangers the health, safety, life, limb or wellbeing, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse”.] the nepali team was able to get access and responses from ngos. however the indian team found that the indian ngos were not open to taking the surveys and quickly denied any engagement over the phone. the indian volunteers were often asked questions by ngos who were circumspect regarding the purpose of the study. the surveyors were often asked by the person answering the phone at the ngo to contact other people in the ngo who were the heads of the organization or were said to be more experienced. however, there were no responses to the follow-up phone calls or emails sent to schedule an interview. while there were no clear reasons given for ngo refusals to answer surveys, it appeared to the team that breach of confidentiality was a concern, in spite of clarification that none of the questions required the ngo to reveal any personal or confidential information. as a result of the unwillingness to cooperate on the part of ngos, the indian team was unable to carry out the ngo surveys as planned, which would have enriched the study and findings. given the critical role played by ngos in the legislative process,[footnoteref:25] and particularly the role played by indian ngos in passing the domestic violence legislation, the team was surprised by the lack of responsiveness of ngos with regard to surveys that were specifically designed for ngos working on domestic violence issues. [25: for examples of ways in which ngos are effective in the legislative process see understanding the role of ngos in the legislative process, retrieved at http://www.endvawnow.org/en/articles/113-understanding-the-role-of-ngos-in-the-legislative-process.html] surveys as community education outreach opportunities a community needs assessment can provide an opportunity to conduct community education on a one to one basis. this turned out to be a bonus outcome for this project. after the survey was fully administered, a summary of the domestic violence laws was given to respondents. since the team’s educational institution had no provision for compilation of the survey data, the scanned copy of the survey documents were sent to the u.s. team leader’s technology department to compile the survey data through a computer program. team members in india and nepal felt they were well orientated by the india, nepal and united states team leaders before going out into the field to conduct the surveys. indian surveyors met their respondents mostly in public and open places; however nepali surveyors met their respondents mostly in their offices and homes. linguistically, conducting the survey in nepal was more convenient than in india because all the respondents and surveyors were able to communicate in the predominant nepali language. however, in india due to the variance in respondents’ educational level and language differences most of the surveyors and respondents needed help from a translator. the instructions for administering surveys also brought uniformity among surveyors. the systematic guidance and leadership within team members from professors to volunteers in the project helped to provide guidance to conduct the survey more effectively and efficiently. bringing this diverse group together to collaborate through technology was critical. in order to remain informed about the progress the group communicated over different social networking websites.[footnoteref:26] it was much easier to transfer the data and compile the survey results using this technology. [26: the team used mostly google mail and documents in the premium, educational service with enhanced confidentiality to communicate across international boundaries, as noted above.] survey results survey results were compiled from each of the team members. listed below is a breakdown of each of the team’s results. thorough studies of the results were compiled and it was found that the indian team had surveyed 49% men and 51% women. the nepal survey had a similar distribution. most people who took the survey believed that domestic violence is limited to physical assault. the protection acts in both countries define domestic violence much more broadly to include emotional, economic and sexual abuse. most people were also aware of the criminal penalties against offenders. while only a minority of the survey takers thought domestic violence is justified, clearly any percentage of acceptance cuts against national and international law. most people seemed to personally know people who have suffered from domestic violence. out of the 80 indian respondents surveyed regarding what constituted domestic violence, 75% believed that verbal abuse constituted domestic violence, 67.5% believed that emotional abuse constituted domestic violence, and 63.75% believed that economic abuse constituted domestic violence. the results were in line with our expectations since domestic violence is almost always associated with physical violence. on the contrary, in the indian scenario, where often men are the only income-earning members of the family, and women are rarely financially independent, economic abuse is rarely seen as a form of ‘domestic violence’, although the protective orders act recognizes such abuse as something that can be filed for protection against. regarding a question on whether violence was justified in certain circumstances, 75% of the surveyed respondents believed that violence was not justified under any circumstances. however, 8.75% of the surveyed respondents believed that violence is justified in cases where the woman is not obedient; reflecting on the fact that there are segments of indian society where violence is considered acceptable. perhaps more telling of the incidence of domestic violence is that 45% of the 80 surveyed respondents personally knew of somebody who had been a victim of domestic violence, and 3.75% had been victims of domestic violence themselves. there were 16.75% of those surveyed who knew of someone who had been victims of dowry violence. there were only 27.5% of respondents who claimed they did not know anybody who had been a victim of such a situation. among those surveyed, people belonging to the higher income brackets of the community showed a widespread belief that incidents of violence were limited to the families belonging to lower classes. unfortunately, many of the respondents who had known of people who had been victims of domestic violence or been victims themselves, knew little about the procedure for seeking justice for a victim of domestic violence or the outcome of any complaint that had been filed. there was very little awareness regarding the specific protection mechanisms available under the domestic violence act, 2005, that evolved as a response to the violence against women. however, some individuals who had been involved in seeking justice were able to give an idea of various hurdles faced, pointing to the lack of implementation of the legislation. few individuals who had been victims themselves opened up during the survey in order to understand avenues for seeking justice better, and with the hope of being able to get some form of legal aid. lastly, regarding the form of penalties available against offenders who commit domestic violence, most people believed there was some form of penalty, but were unaware of the exact penalty. almost nobody was aware of the difference between civil and criminal penalties, and a majority of 72.5% of the surveyed respondents believed that a remedy for domestic violence would be criminal in nature. however, 11.5% of the respondents also believed that there is no remedy the law provides for a victim of domestic violence. most people surveyed believed that legal protections against domestic violence included criminal penalties as opposed to civil penalties. perhaps this is a contributing factor as to why a minimal percentage of domestic violence cases are reported. women may be of the opinion that serving a long sentence in jail is too harsh of a punishment for their family member. this shows a need to conduct community legal education programs on the relatively new civil protection laws. there is little awareness about the intricate details of the legal procedures or assistance that is available through legal remedies. while some people are willing to approach the authorities if family problems are not solved amicably, numerous people view the legal system and even ngo’s as formidable, unapproachable institutions. however, very few were well versed with how to use the legal system to protect them against domestic violence. these results suggest several needs for community education that law school legal aid clinics can engage in. the prevalence of domestic violence is not the same across all states; the group of eighty people that were surveyed in kolkata, india was generally aware of the problem of domestic violence and most were of the opinion that it is unacceptable. this does not mean the survey in other communities would get the same results. this is just another reason why each law school legal aid clinic should conduct community needs assessments in their own community and not rely on other studies to guide their institutions. survey results indicated that a large percentage of people believed that physical and verbal violence was associated with the legal definition of ‘domestic violence’ as per indian law, however a far smaller number of people believed that emotional or economic abuse was a form of domestic violence that they could seek legal protection from. furthermore, a minority of those that answered the survey believed that sexual abuse was legally within the ambit of the meaning of domestic violence. what we can learn from the research project technology is important in spreading awareness about the problem of domestic violence through the work of legal aid clinics in india and nepal. unfortunately the effectiveness of technology is limited because many in the population do not have access to the internet.[footnoteref:27] the government and voluntary organizations are making efforts towards ending violence against women through enacting relevant legislation, issuing orders and launching various women welfare schemes. but there appear to be various gaps when it comes to implementation as lower level government functionaries are not gender sensitive and are not adequately trained to give this legislation its full effect. [27: only about one-third of india’s population has internet access in 2016. according to http://www.internetlivestats.com/internet-users/india/ nepal usage is even lower. it was estimated to be 13 percent in 2012. see http://www.internetworldstats.com/asia/np.htm.] the team observed how a community needs assessment is a useful tool in studying awareness of domestic legislation and the role legal aid clinics and ngos might play in addressing a community need. there is a noticeable gap between the law as it appears on paper and how it is understood by and affects the lives of people. a well-intentioned, sensitive and well-drafted law will be ineffective as a tool of social justice unless people from every sector of society are educated and empowered to utilize it. an equally important factor is that the legal personnel must be well-educated and trained to implement the law. lastly, any law will fail to cater to the needs of the people if they are not aware of the laws and of how to set the legal process in motion. a community needs assessment helps us to better understand the law in a given area, to determine the gaps in the law, the awareness and effectiveness of these laws and whether they achieve their purpose as instruments of socio-legal change. a community needs assessment is a necessity for any legal aid clinic to determine what the requirements of the community are, which areas of legal aid should be focused on, and what the methods they adopt should be. each community is different. a universal model for clinic programs will result in a waste of resources and fail to cater to the unique needs of the people in a given community. thus a legal aid clinic must be streamlined through community needs assessments to suit the people it seeks to help. it becomes extremely important for an international audience of activists, social workers and lawyers to reflect upon shared experiences.[footnoteref:28] [28: it might be ‘violent’ in certain communities to deny a woman money or prevent her from earning her own, i.e. it would qualify as economic abuse. this might be considered quite ‘normal’ in other communities. even if considered ‘wrong’, it sometimes does not evoke the same response that physical violence would.] the team presented its research project at the global alliance for justice education (gaje) conference in turkey in 2015. this involved an audience engaged in social and legal advocacy. this is another potential benefit of a community needs assessment research project. students who go to present their research at professional conferences benefit in many ways. they must learn the topic well in order to present it. presentation skills are developed in a real situation. professionalism is practiced. students must work together as a team for a common goal. they also get to meet many other professionals, possibly connecting with someone they can either work with in the future or pursue additional educational goals. such discussions in a global context also broaden law students’ view of social justice issues in the students’ community and on a global basis. this is of greater importance, especially, when social workers and lawyers have to deal with clients from various cultures. the future before conducting the survey, the student team was under the impression that people from the lower economic strata would be largely unaware that there is legal recourse available to them. to the contrary, we found that similar numbers of people in all socio-economic categories were acquainted with the fact that laws exist to protect them, even if they were not educated in how to use them to their benefit. looking back and comparing the results of the survey to what the team’s hypothesis was before the survey gives a better understanding of how respondents view domestic violence. in the beginning the team expected the survey results to indicate that a majority of the domestic violence would take place amongst families who were uneducated or earned less. however, the team found that domestic violence for women is a common problem that transcends social classes. the team also thought that a majority of the men who would find domestic violence acceptable in cases where the woman is disobedient, would belong to the bracket of people who earned less or had minimal educational qualifications. the team realized that this justification for abusing a woman was similarly prevalent even in the homes of educated professionals. the team had the chance to do fieldwork and research where we interacted first-hand with the people that we were surveying; this helped us to understand the problem involving access to legal mechanisms and analyze how legislation and legal aid clinics could change their approach in order to reach out to a larger base of people. interviewing subjects also mirrored what we must learn to do with clients in practicing law, including observing confidentiality. ijcle vol 23 no 3 reviewed article: clinic, the university and society the survey had both quantitative and qualitative data; the latter is extremely useful in terms of indicating what problems people have faced while trying to take legal action or approach an ngo, what kind of legal aid they require and the extent of social stigma attached to domestic violence. the kolkata research team members plan to collaborate with their legal aid clinic in order to streamline some of their practices, keeping in mind what they learned during the survey. in terms of skills, the project has taught the volunteer students teamwork, leadership and communication with people from different parts of the world by effective use of technology. by virtue of a paper on the study being accepted at an international conference, the project helped sharpen team members’ presentation skills and gave them confidence with regard to public speaking – a strength which is extremely important to possess in the legal profession. lastly, the reactions of people during the survey taught students how essential it is to be sensitive and tactful while questioning them about an issue like domestic violence, which is considered a social taboo in various parts of the country and rarely discussed openly. 52 appendix 1: blank survey appendix 2: advertisement reviewed article: teaching and learning in clinic what does legal ethics teaching gain, if anything, from including a clinical component? anna cody1 university of new south wales, australia acody@unsw.edu.au in some law schools legal ethics have been taught very conservatively, focussed on the law of lawyering with a heavy emphasis on ‘professional rules’ and how to ensure solicitors and barristers behave within the professional rules2. others however have proposed different models for thinking about lawyering, lawyers’ ethical duties and the role of lawyers within the legal system. in this article, legal ethics, ethical decision making and values are explored. i ask what value can be gained by including a clinical component within a standard legal ethics course even when it is a short exposure experience. i explore the range of meanings ascribed to ethics and professional responsibility, and the connection between personal and professional identities. finally using three vital elements within the definition of an 1 anna cody is an associate professor of law at university of new south wales and director of kingsford legal centre, australia. i would like to acknowledge the insights and assistance from professor judith welch wegner, professor alex steel, meena sripathy and the two blind peer reviewers in writing this article. 2 australia now has model rules of legal practice which are being used throughout each state and territory. 1 mailto:acody@unsw.edu.au ethical legal professional, i evaluate whether the clinical component contributes to teaching students about how to be an ethical legal professional. i draw from the best practices of australian clinical legal education3 to assist with this process, and discuss some additional learnings which students gain from seeing legal practice modelled for them in a community legal centre, located within a university faculty of law. some of the challenges of developing an effective clinical component are explored such as the importance of training volunteer lawyer supervisors and how to assess the learning by students. the ways of sharing the individual learning across the student cohort is also a further challenge. defining legal professionalism in england4, as well as in australia, there is frequently a lack of clearly defined goals about the teaching of ethics, nor are there clearly defined values to teach. this is in part due to the fact that the “written ethics are found in what are essentially disciplinary, as opposed to aspirational, codes.”5 ethics teaching frequently focuses 3 best practices in australian clinical legal education, , http://www.olt.gov.au/project-strengthening-australianlegal-ed-clinical-experiences-monash-2010, adrian evans, anna cody, anna copeland, jeff giddings, mary anne noone, simon rice. office for learning and teaching, 2013. 4 kevin kerrigan, ‘how do you feel about this client?”a commentary on the clinical model as a vehicle for teaching ethics to law students. 2007 int’l j clinical legal educ 7 2007. 5 julian webb, ‘conduct, ethics and experience in vocational legal education” in ethical challenges to legal education and conduct, hart publishing, oxford 1998 quoted in kerrigan ‘how do you feel about this client?”-a commentary on the clinical model as a vehicle for teaching ethics to law students. 2007 int’l j. clinical legal educ 7 2007. 2 http://www.olt.gov.au/project-strengthening-australian-legal-ed-clinical-experiences-monash-2010 http://www.olt.gov.au/project-strengthening-australian-legal-ed-clinical-experiences-monash-2010 on professional responsibility rules6 or law rather than a discussion of the sort of lawyers we want to produce in our law schools, and the ethical frameworks to use when making decisions. frequently students say that they want to be ‘professional’ and yet when probed, can’t really describe what this means. they will often respond using words such as ‘objective’, ‘skilled’, ‘experienced’. sometimes they will recognise that a professional has a responsibility not just to themselves but to the community also. they frequently refer to the importance of professional work and the relatively high status attached to it. it is a challenge for students to be specific in their definitions. there is an interesting tension between what it means to be ‘professional’ and at the same time, being yourself within your work. many have explored the tension between being a lawyer, a mouthpiece or advocate for someone else, arguing the law on behalf of someone and this being professional. but this can create tensions for those whose personal values may clash with the position they are arguing7. webb8 has explored in depth the concept of ‘ethics’ and ‘being’ and the importance of measuring who you are as a lawyer, as well as what you do. as discussed below, in order to ensure a happy, well functioning legal professional, the person you are as a lawyer is also important, in line with what you do. 6 in england ethics are frequently taught through rules and in australian and the usa this is similarly the case. nigel duncan and susan l. kay, ‘addressing lawyer competence, ethics and professionalism’, in frank bloch ed, the global clinical movement, 2011 london oup. 7 christine parker and adrian evans, inside lawyers ethics, 2nd ed. melbourne, cambridge university press 2014. 8 julian webb, being a lawyer/being a human being, 5 legal ethics 130 2002 3 professional identity highlights social responsibility or ethics but also includes creating competent9 legal professionals who are responsible to the individual client as well as the community.10 each of the professions recognises that in addition to the individual relationship with a client or a patient, a professional also has a responsibility to the community to contribute to it in some form, to provide a service. the carnegie foundation for the advancement of teaching has reviewed the education of various groups of professionals and discusses “professional formation toward a moral core of service to and responsibility for others”11. a number of attempts have been made to try to define professionalism in light of these tensions. the maccrate report identified key values which are essential to lawyers. these include : a) provision of competent representation; b) striving to promote justice, fairness and morality; c) striving to improve the profession; d) professional self development.12 9 in the workshop given on the theme of clinical components within ethics subjects at the 2014 icjle conference, participants included ‘competence’ as one of the key ethical teachings which should be included within even a short clinical component. 10 william m sullivan et al, educating lawyers: preparation for the profession of law (2007) (hereinafter the carnegie report), as quoted in tony foley, margie rowe, vivien holmes and stephen tang, “teaching professionalism in legal clinicwhat new practitioners say is important” international journal of clinical legal education, vol. 17, 2012. 11 neil hamilton and verna monson, ‘legal education’s ethical challenge: empirical research on how most effectively to foster each student’s professional formation (professionalism)’ university of st thomas law journal, vol9:2 2012 p 332 12 report of the task force on law schools and the profession, narrowing the gap: legal education and professional development-an educational continuum (american bar association july 1992), (the maccrate report”) 4 noone and dickson have defined their requirements for a professionally responsible lawyer as someone who: 1.) fulfils the duties attached to a fiduciary relationship; 2.) is competent in the work they perform; 3.) communicates often, openly and clearly with their client; 4.) does not encourage the use of law to bring about injustice, oppression or discrimination; 5.) identifies, raises and discusses ethical issues with current/potential clients; 6.) seeks to enhance the administration of justice and actively engages in serving the community13. hyams builds on the noone and dickson definition, specifically adding to their six points, with three additional points of his own. these are: 1.) the lawyer should be able to work in an autonomous way-in an independent, self-sufficient and self-directed fashion; 2.) the lawyer should be able to exercise judgment-not only relating to how to resolve a client’s problems, but reflective judgement of their own behaviours and actions; 3.) s/he should have an ongoing commitment to lifelong education-over and above that which is required by continuing professional development points. hyams describes this last point as requiring two things--first, an understanding that good lawyering and professionalism require an ongoing process of understanding personal limitations and a commitment to remain fresh, innovative and knowledgeable in professional work. second, it requires the tools to put this 13 mary anne noone and judith dickson, ‘teaching towards a new professionalism: challenging law students to become ethical lawyers’ 4 legal ethics 127 2001, 144 5 understanding and commitment into action14. hyams refers to the understanding that all professionals have an obligation to contribute to the community in some form15. each of these definitions includes the key aspect: • working towards or contributing to justice, fairness and the improvement of the legal system and serving the community, as part of the role of a lawyer. the other two aspects which are used in this article as a framework of analysis are: • gaining a sense of autonomy and self direction; and • ongoing reflection and continual improvement. the last two points are key aspects of an ethically responsible lawyer as the ability to reflect on oneself, how you are and what you do as a lawyer, is vital to being able to improve and be a competent lawyer. ongoing reflection on how a lawyer contributes to the legal system and its ability to deliver justice is also necessary for any lawyer to be able to contribute to the justice system and serve the community. autonomy and self direction is only an element in the hyams definition and yet if autonomy is understood as being connected to motivation theory and an expression of self (discussed below), then it unites individual values with professional work and is thus a vital element of a responsible lawyer. these 3 points that i have identified 14 ross hyams, ‘on teaching students to ‘act like a lawyer’: what sort of lawyer?’. 13 int’l j. clinical legal educ. 21 2008, 44. 15 ross hyams, “on teaching students to ‘act like a lawyer’: what sort of lawyer?”. 13 int’l j. clinical legal educ. 21 2008, 21. 6 also fit within a community legal centre practice. they will be used to evaluate whether or not a clinical component, based in a community legal centre16, where students interview disadvantaged clients, can impact on and develop these 3 key aspects of professional identity, even where it is a brief exposure experience. the 3 elements are interconnected and contribute to each other. the choice of any 3 elements is therefore always going to be arguable. i choose these 3 elements because they are vital to a lawyer being an ethical legal practitioner and because a clinical component within a community legal centre has the potential to teach these 3 key elements. individual values and professionalism; ethical decisionmaking in addition to the difficulties in defining what professionalism means in a legal context, a further significant issue exists in negotiating the connection between individual values and professionalism. there are deep concerns about the ways in which legal education, and legal practice can be alienating for law students17 and 16 there are over 200 community legal centres in australia which provide free legal help (advice, casework, community education and law reform services) to disadvantaged members of the community. www.naclc.org.au 17 larry krieger ‘the inseparability of professionalism and personal satisfaction: perspectives on values, integrity and happiness, 11 clinical l.rev. 4125 (2005), and tony foley, margie rowe, vivien holmes and stephen tang, “teaching professionalism in legal clinicwhat new practitioners say is important” international journal of clinical legal education, vol. 17, 2012 7 http://www.naclc.org.au/ lawyers. students in the common law jurisdictions, learn law largely through the socratic method. this involves using cases to demonstrate the development of law and legal principle. the rich complexity of facts and people’s lives are largely extracted out of the socratic method18 and thus in large part, the human depth is also removed. students are taught to argue a legal principle and doctrine, through case and statute law, and while their views of the particular legal doctrine may be sought at some point, they are secondary to being able to argue the development of the law. this way of constructing argument can be alienating to students. some have argued that, “legal education and early lawyering experiences can tend to erode integrity by separating people from their personal values and beliefs, conscience, truthfulness, and intrinsic needs for caring and cooperation”19. others frame this a little more mildly, as the importance of a ‘value-match’ between a lawyer’s own values and the values of their firm. 20 or that even earlier, it is important to find a value match within the law school experience before entering practice21. 18 unsw doesn’t teach in a pure socratic method and there is a range of practices that are more contextualised – such as structured class participation. see alex steel, julian laurens and anna huggins, class participation as a learning and assessment strategy in law: facilitating students’ engagement, skills development and deep learning (2012) 36(1) unsw law journal 30 19 larry krieger, ‘the inseparability of professionalism and personal satisfaction: perspectives on values, integrity and happiness, 11 clinical l.rev. 4125 (2005) 20 tony foley, margie rowe, vivien holmes and stephen tang “teaching professionalism in legal clinicwhat new practitioners say is important” international journal of clinical legal education, vol. 17, 2012 21 paula lundstad, walk the talk: creating learning communities to promote a pedagogy of justice, 4 seattle j. soc. just. 613 2005-2006; 8 http://works.bepress.com/cgi/viewcontent.cgi?article=1029&context=alex_steel http://works.bepress.com/cgi/viewcontent.cgi?article=1029&context=alex_steel http://works.bepress.com/cgi/viewcontent.cgi?article=1029&context=alex_steel the notion of ‘values’ has an obviously wide meaning. some refer to it meaning a person’s individual, personal and professional values, others refer to it as purely professional values22. this debate connects to the debate around professionalism. if one considers professionalism to be ‘objective’, without judgement, then personal values should not come into professionalism. however in this article, professionalism is defined to include recognising a responsibility to the community in the practice of law. this inevitably means more than just professional values and includes a person’s sense of who they are, and what it means to them personally to be a lawyer. this is a view expounded by law and ethics teachers who connect the two23. many argue that the 2 cannot be separated as a lawyer is more than what they do but also who they are24. the connection between self and professionalism is something which theorists christine parker and adrian evans25 have explored. they posit a theory of ethical frameworks with 4 key frameworks within which lawyers make ethical decisions. a lawyer may choose to use different frameworks at different times, or regularly feel more comfortable in one framework than another. rarely does a lawyer always 22 larry krieger‘the inseparability of professionalism and personal satisfaction: perspectives on values, integrity and happiness, 11 clinical l.rev. 4125 (2005), and tony foley, margie rowe, vivien holmes and stephen tang ‘teaching professionalism in legal clinicwhat new practitioners say is important’. ijcle , vol 17 2012. 23 julian webb, being a lawyer/being a human being, 5 legal ethics 130 2002, catherine klein, leah wortham and beryl blaustone, autonomy-mastery-purpose: structuring clinical courses to enhance these critical educational goals, 17-18 int'l j. clinical legal educ. 105 2012 , paula lundstad, walk the talk: creating learning communities to promote a pedagogy of justice, 4 seattle j. soc. just. 613 2005-2006; neil hamilton and verna monson, ‘legal education’s ethical challenge: empirical research on how most effectively to foster each student’s professional formation (professionalism)’ university of st thomas law journal, vol9:2 2012. 24 julian webb, being a lawyer/being a human being, 5 legal ethics 130 2002, adrian evans and christine parker, ‘inside lawyers’ ethics’, 2013, cambridge university press, ch 2. 25 christine parker and adrian evans, ‘inside lawyers’ ethics’, 2nd ed. 2014, cambridge university press, p32. 9 operate out of one framework. the 4 frameworks are: adversarial advocate in which a lawyer’s role is to advocate zealously for the client’s interests within the bounds of the law. another is that of responsible lawyer who is seen predominantly as an officer of the court and the lawyer is responsible for making the law and the legal system work as fairly as possible. a moral activist model of ethics emphasises the importance of lawyers’ position within society and their role in engaging in law reform activity to make law fairer and also to advise clients about a moral course of action. the fourth model is the ethics of care lawyering. in this the lawyer’s responsibility to other people and to maintain relationships, and to avoid harm is the key consideration26. students have the opportunity to explore ethical frameworks through the clinical component of their legal ethics course. how the clinical component works the clinical component functions as a part of the normal operations of a functioning community legal centre. this centre, kingsford legal centre27, sees over 1800 clients each year providing free legal advice to them, as well as undertaking casework for over 300 clients each year and engaging in community education and law reform and policy work. the centre runs 3 evening advice clinics each week 26 ibid 7. 27 www.kingsfordlegalcentre.org.au 10 http://www.kingsfordlegal/ with 10-12 clients given advice at each advice clinic. each evening advice clinic is supervised by a staff clinical supervisor/solicitor with up to 6 volunteer solicitors and barristers who give their time voluntarily (pro bono). all the students who participate in the clinical component are studying the course lawyers, ethics and justice. some are undergraduate28 students completing a combined degree and so are mostly in their 3rd year of a 5 year program. other students are juris doctor29 students who are studying law as a graduate degree and these students are generally in their first or second semester of a 3 year degree program. students, before coming to the centre are given a 2 hour class on the functioning of the centre and an introduction to interviewing skills in their regular class time of lawyers, ethics and justice. on arrival at the centre before their assigned evening advice clinic a clinical elective student (who is studying an elective clinical course over the whole semester at the centre) and a clinical supervisor teach them about the internal processes of the centre, how to check for conflict of interest, give them a further explanation of the duty of confidentiality and teach them key points about working with interpreters. they also explain the support mechanisms available to students and give them a basic safety training. after this 2 hour induction, students begin to take instructions from clients. after they have taken initial instructions from their first client, they leave the client waiting, go and discuss the case with a volunteer lawyer/supervisor and the 28 http://www.handbook.unsw.edu.au/undergraduate/courses/2015/laws1230.html 29 http://www.handbook.unsw.edu.au/undergraduate/courses/2015/laws1230.html 11 http://www.handbook.unsw.edu.au/undergraduate/courses/2015/laws1230.html http://www.handbook.unsw.edu.au/undergraduate/courses/2015/laws1230.html supervising solicitor/clinical supervisor, devise the legal advice in collaboration with the volunteer lawyer/supervisor, then return with the volunteer lawyer/supervisor. the volunteer lawyer gives advice while the student makes notes of the interview, and records the advice given. the student and volunteer solicitor have a short debrief after the interview, before the student sees another client to take instructions. this article examines whether a brief, intense clinical component of a substantive ethics course can teach key aspects of ethics. as mentioned above, these are: • working towards or contributing to justice, fairness and the improvement of the legal system and serving the community, as part of the role of a lawyer; • the students/lawyers development of autonomy and self direction; and • the need for ongoing reflection on their role, and continual improvement. such a component, even if only short, can give students a sense of how law can impact on disadvantaged people. it contributes to students’ understanding of how they can use their law degrees to improve justice and the legal system as well as giving them a sense of autonomy. by providing a clinical component with real clients early in a law degree, students are exposed to a particular area of legal practice with which they must align their own values. each decision on a case, will affect the life of the client as legal issues have a deep impact on the lives of 12 disadvantaged clients30. working with disadvantaged clients, students see the ways in which law can impact harshly in people’s lives and thus their questioning of ‘justice’ and the ‘law’ is enlivened. the framework for thinking about ethical decision making and their role as future lawyer, is therefore particularly relevant. additional learnings gained by students will be explored. in additional, attention will be given to whether the clinical component meets the best practices in australian clinical legal education. 31 this report was the first of its kind in australia, documenting each of the clinical programs in place over the period 2009 to 201132. it was guided by an international reference group of clinical legal education experts, and an australian advisory council. it documented existing practice across all clinical programs through a survey and interviews with every program. from this empirical research, the research group developed the best practices in australian clinical legal education as a guide for those reviewing clinical programs and creating new ones, in order to develop high quality, rigorous clinical programs. 30 nsw law and justice foundation research on the impact of legal problems on disadvantaged clients. coumarelos, c, macourt, d, people, j, macdonald, hm, wei, z, iriana, r & ramsey, s 2012, legal australiawide survey: legal need in australia, law and justice foundation of nsw, sydney. 31 best practices in australian clinical legal education, , http://www.olt.gov.au/project-strengtheningaustralian-legal-ed-clinical-experiences-monash-2010, adrian evans, anna cody, anna copeland, jeff giddings, mary anne noone, simon rice. office for learning and teaching. 2013. 32 regional reports and final report best practices in australian clinical legal education, http://www.olt.gov.au/project-strengthening-australian-legal-ed-clinical-experiences-monash-2010, adrian evans, anna cody, anna copeland, jeff giddings, mary anne noone, simon rice. office for learning and teaching. 2013. 13 http://www.olt.gov.au/project-strengthening-australian-legal-ed-clinical-experiences-monash-2010 http://www.olt.gov.au/project-strengthening-australian-legal-ed-clinical-experiences-monash-2010 http://www.olt.gov.au/project-strengthening-australian-legal-ed-clinical-experiences-monash-2010 teaching ethics through a clinical course: why this is a valuable way to teach ethics ethics have mostly been formally taught in the classroom. however whenever law33 is taught through clinical subjects, it is unavoidable that ethics issues and therefore ethics teaching34 occurs. additionally there are some law schools which have chosen to teach ethics either wholly through a clinic, or incorporating clinical components. for example, at the catholic university35 in washington dc elements of clinical teaching are incorporated into their professional responsibility course. in many clinical courses, learning about ethical responsibilities is one of the learning objectives of the course.36 there are also clinical courses whose specific aim is to teach legal ethics and professional responsibility37. an alternative is to include a clinical component in an ethics course and this approach may be equally effective. 33 historically, law teaching has passed through many permutations. after the division between the academe and professional practice, jerome frank proposed in the early 20th century that law could be taught through a clinical law school. some law schools have modelled themselves on being ‘clinical law school’’ (newcastle university nsw and northumbria university) but this is not the norm. 34 see the entry for latrobe university at p 15 and the entry for university of new south wales at page 36. clinical legal education guide, your guide to courses offered by australian universities in 2014, kingsford legal centre. 2014. http://www.klc.unsw.edu.au/sites/klc.unsw.edu.au/files/55386_clinical_legal_education_guide_web.pdf 35 leah wortham, interview with the author, december 2014 and leah wortham, thanks for the book and the movie, 10 clin. l. rev. 399 (2003) (invited submission to symposium honoring the 25th anniversary of publication of gary bellow & bea moulton, the lawyering process (1978)). 36 clinical legal education guide, your guide to courses offered by australian universities in 2014, kingsford legal centre. 2014. http://www.klc.unsw.edu.au/sites/klc.unsw.edu.au/files/55386_clinical_legal_education_guide_web.pdf 37 the course run by latrobe university focuses on professional responsibility and has been run at a range of legal services including west heidelberg community legal service, preston legal aid among others. best practices australian clinical legal education, regional report victoria and tasmania 2011 page 5. http://law.monash.edu.au/about-us/legal/olt-project/regional-reports/index.html clinical legal education guide, your guide to courses offered by australian universities in 2014, kingsford legal centre. 2014.page 16. http://www.klc.unsw.edu.au/sites/klc.unsw.edu.au/files/55386_clinical_legal_education_guide_web.pdf 14 http://law.monash.edu.au/about-us/legal/olt-project/regional-reports/index.html “once they encounter a client, the blind faith that there is a ‘truth’ or a ‘law’ that can be applied must give way to a more sophisticated understanding. clients’ cases rarely present simple facts that lend themselves to right and wrong answers. it is the complexity and unpredictability of working with real people that makes clinical legal education so rich.”38 this complexity of clients’ cases is rich ground for learning about ethical decisionmaking and the widespread occurrence of ethical issues. however it cannot be assumed that simply by placing students in a clinic, they will learn ‘ethics’ and ethical decisionmaking. this does not occur via a process of osmosis. it has to be consciously planned and incorporated39. the literature on such clinical approaches highlights a number of important pedagogical matters that are necessary to achieve fuller learning outcomes. rather than assume that experience itself will teach students, the importance of de-brief and reflection is essential. students need the opportunity to talk with each other about what they are learning and reflection is a key part of the learning process40. the groundedness of teaching professional responsibility or ethics through a clinic, allows discussions such as the importance of cultural competence41. the diversity of clients, client 38 jane aitken, ‘provocateurs for justice’, 7 clin.l.rev. 287 at page 292. 39 some have argued that a clinic is not the best place to teach ethics because the ways in which ethical issues arise are unpredictable which means that students will have varying experiences of ethical issues and range of different issues. despite this, ethical issues can be shared and the learning spread amongst a group of students through class discussions, class presentations, group debriefs. margaret martin barry and peter a. joy, ‘clinical education for this millenium: the third wave’, 7 clinical l. rev. 1 2000-2001 40 margaret martin barry and peter a. joy, ‘clinical education for this millenium: the third wave’, 7 clinical l. rev. 1 2000-2001 41 antoinette sedillo lopez, teaching a professional responsibility course: lessons learned from the clinic, 26 j. legal prof. 149 2002. 15 experience and the legal issues clients face, provide rich learning for students around cross cultural communication and the importance of working effectively with a broad range of culturally diverse clients. class-room components of clinical subjects should therefore also include training on cultural competence. conceptualising the role of a clinical office as a role model in legal practice about how a legal practitioner should behave and what ethical decision-making means, is also highly significant. there are legitimately a range of views about what is ethical legal practice and appropriate lawyering styles and approaches. the individual behaviour of the clinic lawyers which students observe, give students rich material to critique, analyse and reflect on how to be a lawyer. as noone et al note, ‘through working with solicitors and being able to observe first hand different lawyering styles, students will begin to develop a deep understanding of ethical practice’42. clinics can also highlight the public nature of the work of lawyers and therefore, the public responsibility that lawyers also hold43. when the latrobe university ethics course was offered through west heidelberg community legal service it included a component which encouraged clinical students to recognise the limitations of the law and develop law reform solutions to problems which they identified through their work on client cases44. students, by identifying problems with the law and 42 mary anne noone, judith dickson and liz curran, ‘pushing the boundaries or preserving the status quo? designing clinical programs to teach law students a deep understanding of ethical practice’ (2005) 8 international journal of clinical legal education 104, 111. 43parker, s 2001, ‘why lawyers should do pro bono work’ 19 (1 and 2) law and context. 44 liz curran (2004) ‘responsive law reform initiatives by students on clinical placement at la trobe law’ 7(2) flinders journal of law reform 287. 16 then by taking an active role in coming up with solutions, were already in the role of responsible lawyer or moral activist lawyer, responsible for ensuring that law and the legal system operate as fairly as possible. thus the model of ethical lawyering which parker and evans discuss45 was actively structured into the clinical course. other clinical courses generally aim to teach ethics as one of their principal learning objectives. this is defined as being about teaching law in context and the role of law in society as well as the role of lawyers in society.46 these learnings are possible within a full clinical course spanning over a semester, with students attending between 1 and 2 days a week at their clinical site, whether it be a community legal centre, a law reform agency or legal regulation authority. embedding clinical components within courses. having outlined the key issues around professionalism and legal ethics and how clinical courses have the potential to explore these issues, this section discusses the extent to which it is possible to teach the 3 key elements, when a clinical component is embedded within an ethics course47, using the example of the clinical component at university of new south wales, australia, kingsford legal centre. 45 parker and evans identify the model of ‘responsible lawyer’ who is an officer of the court and who is concerned to make the legal system function smoothly and fairly. table 2.2 chapter 2, adrian evans and christine parker, inside lawyers ethics, 2nd ed, melbourne, cambridge university press 2013. 46 kevin kerrigan, ‘how do you feel about this client?”a commentary on the clinical model as a vehicle for teaching ethics to law students. 2007 int’l j clinical legal educ 7 2007, p16. 47 other australian courses which include a clinical component in australia are the family law and dispute resolution courses developed by charles darwin university in the northern territory. this clinical component involves students studying in darwin the theoretical component of family law or dispute resolution over a period of 10 weeks, then travelling over 5000 km south to work for 2 weeks in a community legal centre in 17 1. working towards or contributing to justice, fairness and the improvement of the legal system and serving the community, as part of the role of a lawyer; in this post client interview debrief, and also in the initial briefing of the volunteer lawyer by the student there are a range of issues which often emerge. these include: a). a solicitor must act on the instructions of a client and if a client has a disability how do lawyers deal with the client? does a psychiatric disability impact on how a lawyer thinks about a client’s ability to give instructions? what is disability? how are clients impacted within the legal system by having a disability? b). who are the legal profession? who are clients? does the limited diversity of the legal profession impact on the experience of disadvantaged clients seeking legal help? c). what are conflicts of interest? how should a legal practice manage conflicts of interest within families? d). what does acting on instructions mean? e). what is a lawyer’s responsibility when asked for advice about doing something which is illegal? f). what is the role of a lawyer and the limit on students who cannot give legal advice? northern victoria which specialises in family law. the other course in australia as discussed in the best practice research project is the latrobe judicial mentoring component which is a component of family, society and law; and criminal procedure and evidence. www.oltc regional reports, northern territory, and victoria and tasmania. 18 http://www.oltc/ g). how much information should lawyers give clients about why they don’t have a good case, taking into account issues of client autonomy issues versus complexity/paternalism/disadvantage? this range of issues is indicative of the type of issues that arise. it is very wide ranging and depending on the clients who seek legal advice, the issues they raise vary. additionally the discussion which ensues about these issues can vary, depending on the volunteer lawyer/supervisor who is working with the client and student. the strategy the centre has developed for ensuring that some of these issues are discussed is to encourage volunteer lawyers/supervisors to analyse with the student any issues which arose during the interview process. the staff clinical supervisor/solicitor may also participate in these discussions. the two challenges with this approach are: the variability of the issues which arise, and the ability of volunteer lawyers to identify issues and discuss them appropriately. challenges in students thinking about their role and contributing to the community some of the volunteer lawyer/supervisors come from a legal services/legal aid background and are accustomed to working with disadvantaged clients. these lawyers have, for example, thought through issues of working with clients with disability whose ability to give instructions may be challenged in some way, or issues of working with culturally diverse clients. there are also lawyers from large 19 commercial firms and small suburban practices. each volunteer lawyer/supervisor brings their perspective on the issues named above. because of this, each student will experience a different debrief also, not only because they see different clients but because each lawyer will approach the client uniquely. some may be able to see structural injustices more readily, others not. this variability is both a weakness of the clinical component and a strength. it is a strength because it demonstrates to students that each lawyer has to grapple with issues themselves individually, with support, but that there isn’t a ‘one right answer’ to ethical issues. each lawyer brings their experience, individual values and perspectives to the discussion. often the most interesting discussions will be among the group of lawyers and the staff clinical supervisor about how to deal with an issue, and students observe these and can also participate in them. students may observe disagreement or robust discussion about how to deal with a particular client. this emphasises to students that ethical issues are not clear cut and there are a range of ways of dealing with issues. because the issues which arise from each clinical experience vary so substantially between students, it is a challenge to ensure these individual issues can be shared within a larger group. the lessons which are available to be learnt from each of the issues are not made available to all students, rather they are only available to a few students, those present at the evening advice session. this is a weakness of the 20 clinical component as the full learning potential of the issues which arise in each evening advice session, is not fully developed across the cohort of students. two ways of deepening and sharing the individual learning would be to ask some students to present verbally on their specific experiences during their interview session, to the larger class, and also draw on student’s individual experiences when discussing broader ethical issues such as the duty of confidentiality or fiduciary relationships. students could also gain points in their grades for class participation48 for using anonymised examples from the interviewing clinical component. these would be two mechanisms to draw greater learning from the clinical component. the added benefit of these approaches would be that it would also enable peer to peer learning, beginning the process within the formal class setting, of drawing on peers to explore and resolve ethical issues. this would have substantial benefit for the students’ later legal practice49. another method for ensuring peer to peer learning would be to require students to comment on 3 other student assignments. by requiring students to complete a set reflective assignment which asks students to reflect on any ethical issues which arose during their interviewing session, students are all asked to identify specific issues, even though they will have experienced different issues. in this way the experience is assessed equally among the group, 48 at unsw students are graded for their class participation including preparation for class, ability to identify issues and contribute to discussion among other criteria. 49 alex steel, julian laurens and anna huggins , ‘class participation as a learning and assessment strategy in law: facilitating students’ engagement, skills development and deep learning’ (2012) 36(1) unsw law journal 30 21 http://works.bepress.com/cgi/viewcontent.cgi?article=1029&context=alex_steel http://works.bepress.com/cgi/viewcontent.cgi?article=1029&context=alex_steel although the insights that students gain are not shared with the group, limiting the potential of peer to peer learning. responsibility to contribute to the legal system to make it fairer the other implicit message which is given by incorporating a clinical component within a core course on legal ethics, is that universities and law faculties have a responsibility to respond in some way to unmet legal need. students contribute actively in providing legal services to disadvantaged people. by situating a clinical component within an ‘in house’ clinic it gives the clear message to students that this is the core work of the law faculty and integrates students into this role. it communicates to those students that they are part of the legal system, participating in it and they are giving help to people who need legal help and who can’t afford to pay for it. it then prompts the question, what responsibility does each lawyer have, within the legal system, with their skills and training, to provide legal help to disadvantaged people. the law school simultaneously answers that question implicitly by funding an in house clinic and requiring all students to complete the clinical component. ‘law school clinics continue to play an important role in making access to justice a reality for many low-income people. they do so not only by exposing law students to the 22 legal problems that the poor face but also by allowing students to experience what amounts to a "tactile" connection with the obligation to find substantive and creative ways to respond to unmet legal needs.’50 this is another aspect of this first point which students learn through their clinical component. the law school models the answer to the question of what responsibility does each legal practitioner have to the law and the legal system. 2. student autonomy this is the 2nd element of the ethical legal professional which is taught through the clinical component. students do not observe interviewing of clients with legal problems, or only role play it, rather they actually interview real clients. this ideally supports a sense of purpose in students’ lives. according to ryan and deci ‘the needs for autonomy, competence, and relatedness “appear to be essential for facilitating optimal functioning of the natural propensities for growth and integration, as well as for constructive social development and personal well-being.” ‘51 they developed selfdetermination theory which explains what ‘helps people to thrive and maximize positive motivation’. experiences of autonomy and relatedness, such as interviewing clients in a supportive environment, is the type of experience which 50 margaret martin barry and peter a. joy, ‘clinical education for this millenium: the third wave’, 7 clinical l. rev. 1 2000-2001. 51 leah wortham, catherine klein and beryl blaustone, autonomy-mastery-purpose: structuring clinical courses to enhance these critical educational goals. 17-18 int’l j. clinical legal educ. 105 2012, p 113, quoting ryan and deci, self determination theory and the facilitation of intrinsic motivation, social development, and well being, 55 am. psych. 68 68 (2000) rev 23 would maximize positive motivation in students and help them to thrive. this is an issue which would warrant further research with the student group. students comment informally about the impact of being responsible for interviewing the client, finding out what the client needs help with and how they can contribute to that. for many it is their first experience of seeing how law can help people and how impenetrable the legal system can be for disadvantaged people. most students are very nervous about whether they will be able to successfully interview clients before they interview. almost all students feel a sense of accomplishment at the end of the evening advice clinic when they have interviewed clients. in their reflection assignment they readily identify areas for improvement but also refer to what they are able to achieve in their interview. through this it appears that the clinical component builds students’ sense of autonomy and builds their motivation. these accounts are anecdotal and warrant further empirical research. 3. how does the clinical component teach students the importance of reflection and ongoing improvement? this is the 3rd of the key elements found in the various definitions of what makes an ethical legal professional. rather than assume that experience itself will teach students, the importance of de-brief and reflection is essential. students need the 24 opportunity to talk with each other about what they are learning and reflection is a key part of the learning process52. this occurs both formally and informally through the clinical component in ethics at unsw. students are encouraged to discuss their experiences informally in a group setting at the end of, and during the interview advice clinic. they are also asked to complete a formal assignment reflecting on their interview experience. there are two aspects of reflection which should be addressed here. one is the student’s self reflection, about how the interviewer conducted the interview, areas for improvement and issues which arose between the interviewer and interviewee. the other area for reflection is about ethical issues which may have arisen or broader issues around the law and legal system and the client’s participation within it. both these areas of reflection are included in the reflective assignment. generally students are able to effectively answer the question reflecting on their own interviewing practice53. their ability to reflect on the legal system and the law varies. the best practices include reflection as a vital element within clinical components stating: in all clinical courses and components, debriefing and discussion that encourages reflection are emphasised. further structured opportunities for reflection are a 52 peter joy, the ethics of law school clinic students as student-lawyers, 45 south texas l.rev 815 at 839 53 there is no empirical evidence of the students’ ability to reflect, however the clinical component has been in place for over 14 years and a large number of reflective assignments, demonstrating reflective ability have been submitted for assessment. 25 clearly articulated and important part of any clinical course. reflection is informed by relevant literature and incorporated into every clinical course in a structured, planned and thoughtful way54. in this way the clinical component is structured to meet the best practices. the assessment of reflection will be discussed further below. there are additional learnings that students gain from their clinical component and these will now be discussed. modelling collaborative team work and demonstrating a particular type of legal practice in addition to teaching ethics and ethical decision making formally, the methodology of teaching is equally important. if one of the values which is sought to be taught, is collaborative team work, then this must be modelled55. it is vital therefore that in supervision the clinical supervisor demonstrates respectful and mutual relationships with volunteer supervisor solicitors. the relationship between clinical supervisor and volunteer solicitor supervisor must use clear communication. 54 best practices in australian clinical legal education, , http://www.olt.gov.au/project-strengtheningaustralian-legal-ed-clinical-experiences-monash-2010, adrian evans, anna cody, anna copeland, jeff giddings, mary anne noone, simon rice. office for learning and teaching, 2013. p 58. 55 lustbader, walk the talk: creating learning communities to promote a pedagogy of justice 4 seattle j soc just 613, 628. 26 http://www.olt.gov.au/project-strengthening-australian-legal-ed-clinical-experiences-monash-2010 http://www.olt.gov.au/project-strengthening-australian-legal-ed-clinical-experiences-monash-2010 discussing professional values in a clinical setting can assist students to begin to identify their own professional sense, and so be better able to assess in the future whether a particular practice will suit their professional identity56. the role of a clinical office being a role model in legal practice about how a legal practitioner should behave and what ethical decision making means, cannot be overrated. by providing the opportunity to all 1st or 2nd or 3rd year students to participate in the clinical component situated at a functioning community legal centre, students are given the chance to participate in a particular type of legal practice and begin thinking about whether that type of legal practice is one which would suit their values, and their approach to law. it shows other legal professionals volunteering their time, and so, by example they are shown that other legal professionals believe they should contribute to the community with their legal knowledge. it indirectly addresses the issue of ‘what responsibility does each legal professional have to contribute to the community?’ students have modelled for them, ways of being a lawyer with disadvantaged clients. they also have collaborative team work modelled as the supervising clinical supervisor solicitor works with the volunteer supervisor solicitors. they are given a high degree of responsibility through actually taking instructions from clients, briefing the supervising solicitor and researching the law and writing up the advice given. through the reflection assignment and informally at the advice session, 56tony foley, margie rowe, vivien holmes and stephen tang “teaching professionalism in legal clinicwhat new practitioners say is important” international journal of clinical legal education, vol. 17, 2012, 26. 27 students reflect on aspects of the law, the legal system, their own interviewing skills and the experience of the client. this aspect, teaching student autonomy, is another critical learning. training of supervisors within the clinical component and assessment as discussed above under the first point, students are expected to be able to reflect on a range of issues, including the client’s and their own place in the legal system and ethical issues which arise. ideally students during the evening advice clinic discuss with their volunteer lawyer supervisors aspects of their experience. the volunteer lawyer supervisors should also be able to give them formative feedback about their performance. this capacity will vary substantially among the volunteer lawyer supervisors. the best practices report discusses the importance of assessing reflection, using a criterion-based approach that focuses on both the reflective process, the content of the reflection, and the linkage to learning outcomes57. currently students’ interviews are not formally assessed using criterion-based standards although ideally volunteer lawyer supervisors are expected to give formative feedback. students will often raise difficulties they faced while 57 best practices in australian clinical legal education, , http://www.olt.gov.au/project-strengtheningaustralian-legal-ed-clinical-experiences-monash-2010, adrian evans, anna cody, anna copeland, jeff giddings, mary anne noone, simon rice. office for learning and teaching, 2013. p59. 28 http://www.olt.gov.au/project-strengthening-australian-legal-ed-clinical-experiences-monash-2010 http://www.olt.gov.au/project-strengthening-australian-legal-ed-clinical-experiences-monash-2010 interviewing and the volunteer lawyer supervisors, as well as the supervising clinical solicitor, give feedback about how to improve the interviewing practice. the reflection assignment, which follows the interviewing experience, is the summative assessment of the clinical component, which assesses the students’ ability to evaluate their own interviewing, as well as their thinking about their own current and future contribution to the law and legal system. there are 3 questions within this assignment and the mark contributes to 15% of the overall grade students receive for the course. there is a published assessment58 rubric which outlines which aspects are assessed59. students ideally draw on set readings about good interviewing practice60 and identify how they were or were not able to use good interviewing practice. students must identify how they can improve in the future. they don’t have the opportunity to interview further clients. in this way the clinical component reflects the insight from stuckey et al that ‘optimal learning from experience involves a continuous, circular four stage sequence of experience, reflection, theory and application.’61 by including a 58‘ formal assessment, using publicised criteria, is combined with informal feedback delivered when opportunity presents itself or necessity requires it’, best practices in australian clinical legal education, http://www.olt.gov.au/project-strengthening-australian-legal-ed-clinical-experiences-monash-2010, adrian evans, anna cody, anna copeland, jeff giddings, mary anne noone, simon rice. office for learning and teaching, 2013. 59 the rubric informs students that their identification of ethical issues is assessed, the ability to apply ethical frameworks to real life situations, their reflection on experience, their identification of good interviewing technique and their ability to incorporate theory from readings into reflection on practical experience. 60 these are readings which are assigned for the formal class on interviewing including kay lauchland, ch 3, ‘the importance of good communication’, legal interviewing: theory, tactics and techniques, ka lauchland and mj le brun, butterworths australia, 1996 ; chapter 2, ‘interviewing-listening and questioning’ , ross hyams, susan campbell, adrian evans, , practical legal skills: developing new clinical technique, 4th ed, oxford university press, australia and new zealand 2014. 61 stuckey and others, best practices for legal education, a vision and a road map, clinical legal education association, 2007. 29 http://www.olt.gov.au/project-strengthening-australian-legal-ed-clinical-experiences-monash-2010 reflective assignment, which draws on theory, the clinical component teaches students the significance of that circular process. within the clinical component delivered through kingsford legal centre at unsw, volunteer supervisor solicitors who are actively working with students, guide them in taking client instructions, work with them to develop legal advice for the client, supervise their note taking and written summaries of client advice. these volunteers are not given formal training for their role teaching students. there are also clinical supervising solicitors who are trained in clinical supervision who supervise the volunteer supervisor solicitors and who provide on-the-job training through modelling appropriate student teaching and supervision. the volunteer supervisor solicitors do get training in relevant areas of law within a community legal practice, but no training on how to supervise students. one of the concerns has been that it may be too taxing on volunteer supervisor solicitors to require them to also gain training in supervision skills when they are donating their time to the centre for disadvantaged clients. anecdotally however, many of the volunteer supervisor solicitors also comment on the pleasure they gain in working with law students and supervising their work62. at the very least, training in supervision skills should be offered to all volunteer solicitor supervisors. even if they don’t immediately identify the usefulness of 62 each year there is an annual dinner to thank volunteer solicitors at kingsford legal centre, at which many of the volunteer solicitors offer their observations of the sense of worth and pleasure they gain from supervising law students. 30 receiving training in their supervising of students, supervision skills will be transferable to their workplaces where they may supervise other employees. the best practices make clear that: “all supervisors, including short-term, locum and agency-employed supervisors, [should be] trained in the process of supervision and provided with the time and resources to fulfil their responsibilities. 
supervisors [should be] able to participate in specific supervision training courses and skills development processes. universities [will] give ongoing commitment to the professional development of supervisors”63. if the aim of the clinical component is to teach the 3 elements outlined above, then it is key that the volunteer lawyer supervisors are trained how to teach these elements. due to the differences among the group of volunteer lawyers, some from private practice, others from large commercial law firms, others from legal aid practices, they would need an opportunity to reflect themselves on the sorts of issues which arise in interviewing disadvantaged clients. training would provide opportunity for the volunteer lawyer supervisors to reflect on these issues. they could also be asked for their views on ‘good interviewing practice’. as they are experienced lawyers, there would be room for ample discussion of both these issues in the 63 best practices in australian clinical legal education, http://www.olt.gov.au/project-strengthening-australianlegal-ed-clinical-experiences-monash-2010, adrian evans, anna cody, anna copeland, jeff giddings, mary anne noone, simon rice. office for learning and teaching, 2013. p56. 31 http://www.olt.gov.au/project-strengthening-australian-legal-ed-clinical-experiences-monash-2010 http://www.olt.gov.au/project-strengthening-australian-legal-ed-clinical-experiences-monash-2010 process of teaching them to teach the students how to reflect on their role as future lawyers contributing to the community and the need for continual improvement and ongoing reflection. at a base level, due to each lawyer volunteering their time, at the least, these lawyers/supervisors believe they have a responsibility to contribute in some form to the community. small group discussion about both of these aspects would be an effective mechanism to train them. the volunteer lawyer supervisors may then need further support during the advice clinics in encouraging students to think critically about their role, and their interviewing. in order to train the lawyers to teach student autonomy it would be useful to outline some of the history of clinical legal education methodology and the importance of giving students responsibility64 for their work within that. from this a range of ways of encouraging autonomy could be discussed such as students participating in researching advice, students’ views being sought about clients’ issues, students writing up of the advice being constructively critiqued. the broader linking between personal values and self motivation could also be taught with some references provided to the volunteer lawyer supervisors for their further reading. another aspect of developing student autonomy is giving effective and timely feedback. this is also recognised in the best practices which state that: “frequency of feedback [should be] planned before the use of clinical components to ensure 64 simon rice, (1996), a guide to implementing clinical teaching method in the law school curriculum; jeff giddings, clinical legal education in australia: a historical perspective, 3 int’l j. clinical legal educ. 7 2003; catherine klein, leah wortham and beryl blaustone, autonomy-mastery-purpose: structuring clinical courses to enhance these critical educational goals, 17-18 int'l j. clinical legal educ. 105 2012 32 that such feedback is consistent across the student body; and supports the clinical process.”65 to train the lawyers to teach ongoing reflection, ideally the volunteer lawyer supervisors would be trained to ask at the end of each interview “what did we do well? and what could we do better?”. this could then model to the student the importance of self assessment and critique on an ongoing basis. the volunteer lawyer supervisor could also be encouraged to reflect on their interviewing of the client and model the analysis of what worked well, and what could be improved with the client. the volunteer lawyer supervisors could engage in role plays in training in order to develop their skills in these areas. after this training, the following challenge would be to measure whether the students are learning these 3 elements. currently the only way of measuring this is through the content of the reflective assignment completed by each student. these demonstrate that most students are able to reflect on their future role as a lawyer and critique their own interviewing. to assess whether they are learning autonomy is more difficult. the only mechanism is the student’s own evaluation of their sense of growth and learning through the experience. learning about the need for ongoing improvement and self reflection can probably be measured through the reflection assignment and also a student’s before, and after, self evaluation. empirical research on each of these aspects, asking students to give their views on each aspect both 65 best practices in australian clinical legal education, , http://www.olt.gov.au/project-strengtheningaustralian-legal-ed-clinical-experiences-monash-2010, adrian evans, anna cody, anna copeland, jeff giddings, mary anne noone, simon rice. office for learning and teaching ,2013, p 57. 33 http://www.olt.gov.au/project-strengthening-australian-legal-ed-clinical-experiences-monash-2010 http://www.olt.gov.au/project-strengthening-australian-legal-ed-clinical-experiences-monash-2010 before, and after their clinical component may provide a means to measure the impact of the learning through the clinical component. challenges of a clinical component within a substantive law subject from this brief discussion, it is apparent that there are valuable learnings on ethical practice and decision making for students, even within a brief 5 hour, interview advice session, clinical component. integrating clinical experiences and methodologies into the substantive curriculum has been discussed and generally recognized as a valuable innovation within legal education66. other law schools have attempted to incorporate clinical elements within substantive courses such as at the university of maryland, university of new mexico and new york university.67 working with actual clients within the first or second year is not widely adopted and yet has distinct advantages. there are 2 distinct areas for improvement and growth within the clinical component. the integration between the clinical component and the substantive ethics subject at unsw law can be challenging. while the 3 specific elements discussed are taught 66 margaret martin barry and peter a. joy, ‘clinical education for this millenium: the third wave’, 7 clinical l. rev. 1 2000-2001 67 margaret martin barry and peter a. joy, ‘clinical education for this millenium: the third wave’, 7 clinical l. rev. 1 2000-2001, p44. 34 within the clinical component, the greater challenge is ‘how to get the most’ out of a valuable and rare clinical component within a substantive law subject across the cohort of students. a community law centre, which is largely inhouse, cannot offer a clinical learning experience in a range of substantive law subjects especially when there are over 180 students each semester. it is too resource intensive. as some of the learning is individually based, ways to encourage peer-to peer learning, and deepen the learning from the clinical component, should be explored. these possible approaches could include introducing an individual oral presentation to the class, as an assessment alternative, and attributing marks for class participation where students use their clinical component to describe or analyse ethical issues in discussions occurring during the course. the second area for growth is in training volunteer lawyer supervisors to teach the 3 elements more effectively and to explore effective assessment of these. this has been discussed at length above. conclusion from this discussion, it is apparent that ethics training and awareness is a vital part of any legal education and career. rather than focus on disciplinary consequences of malpractice, it is key to recognize that an ethical lawyer will identify their responsibility to contribute to the community, to the legal system and to improving 35 justice for the community. they will also be committed to competent, self directed and autonomous lawyering. ongoing reflection and continual improvement in their work will be a further aspect of their work. these 3 elements of what makes an ethical legal professional are developed, even in a short, sharp clinical component within a broader ethics course. clinics have particular riches to offer the teaching of ethics. a relatively short clinical component within a substantive ethics subject will provide deep learning for students including these 3 key elements, as well as modelling teamwork and modelling the role of other legal professionals contributing to the community. the challenges include ensuring the training of all volunteer lawyer supervisors in supervision skills. as the supervisors will have varying skills and perspectives on the law and their role in the legal system, it is essential to provide a forum in which to explore their own interviewing practice, and values and beliefs around the role of lawyers in contributing to the community. training in giving effective feedback, including using role plays will be an essential way to improve the clinical component. the other area for improvement is to gain as much from the individual experience and reflections of students, across the student cohort through some additional assessment options and sharing of individual experience in class time. finally, it strengthens clinical components to use the best practices in clinical education to assist in their design. 36 257 models of clinic and their value to students, universities and the community in the post-2012 fees era lydia bleasdale-hill* paul wragg* 1. introduction the number of clinics in existence within higher education institutions has continued to proliferate in recent years� the 2011 lawworks1 report examining the pro bono work undertaken within universities in the united kingdom found that at least 61 per cent of all law schools now offer pro bono activities to their students,2 with 40 respondents offering clinic� this compares with 53 per cent of respondents offering pro bono activity and 11 respondents offering clinical activities in 2006�3 this evidence suggests that an increasing number of law schools recognise the benefits of clinic to students� however, the arrival of a new era in higher education funding arguably requires some reflection on (and perhaps greater articulation of) those benefits and the priorities of clinic activity overall, in order to ensure that the expectations of the key clinic stakeholders (the hosting institution, student volunteers and participating members of the public) are met� concerns that the significant reduction in state funding for higher education will impact adversely on institutional resources is well-documented and at an institutional level there is likely to be * lecturer in law, university of leeds 1 formerly the solicitors pro bono group, lawworks assists those in need of free legal advice and supports practitioners, advice organisations and universities wishing to provide such advice� see http://www�lawworks� org�uk/ for further information 2 richard grimes and martin curtis (2011) ‘lawworks student pro bono report 2011’ (lawworks, london) p�4 http://lawworks�org�uk/tmp_downloads/o2v88f3f137p128g145t70j59f52x27r1z128n57l81z67/lawworks-studentpro-bono-report-2011�pdf (last accessed 16th august 2012) 3 lawworks lawworks students project pro bono the next generation (2006, london) pp�3 and 8 http://lawworks� org�uk/tmp_downloads/q101o72i98q12k149j45a111o114o86k44u4e104j98c126r62/student-report-final�pdf (last accessed 16th august 2012) 258 international journal of clinical legal education issue 19 increased scrutiny of the efficiency of devoting scarce resources to clinic activity in a climate of lower (or potentially lower) income streams and leaner budgets� similarly, some students are likely to exhibit a heightened sense of wanting value for money in their expectations of clinical education and may well demand greater input in the design of clinic activity� against this, there has been a general and significant reduction in funding for the provision of free legal advice and an associated increased demand amongst the general public for quality free legal advice and access to justice� therefore, for new and established clinicians alike, the post-2012 era provides the opportunity for, if not necessitates, reflection on the expectations and ambitions of the three key clinic stakeholders (the host institution, the student volunteers and the general public) and, particularly, the question of whether they are sufficiently aligned with each other and the priorities of the clinic activity in place� arguably, the possibility of conflicting priorities for clinic originating from these key stakeholders and methods of resolving them has featured little in the academic commentary� this paper seeks to contribute to such a debate by offering some insights into resolving these tensions� taking the interests of each stakeholder in turn, this paper discusses methods of maximising the efficiency of administering the clinic and managing student expectations� 2. the value and organisation of clinics a) introduction clinic offers a variety of benefits to higher education institutions: it allows them to provide a valuable service to the local community; it allows them to potentially work alongside local service providers, including businesses (some of which might be potential graduate employers, or sponsors of other school activities); and – perhaps most crucially – it allows them to demonstrate a concern with the future employment prospects of their students� the introduction of up to £9000 per year tuition fees in england from august 2012 onwards has been widely linked to an anticipated increase in students viewing themselves as ‘consumers’ of their higher educational experience� such consumerism is evidenced by, for example, the increased focus on the employment record of university graduates; the expectation that students will become ever-more involved in determining how universities are run and how courses are taught;4 and the expectation on the part of the office of the independent adjudicator that the number of complaints about university courses will see a further rise in the coming years�5 this paper does not seek to advocate this consumerist approach to higher education, or to suggest that this approach should be the sole driver behind institutional decisions regarding how to improve the ‘student experience’� however, for those institutions seeking to enhance the employability skills of their law school graduates (and thereby potentially enhance their post-graduation employment prospects), as well as to develop a competitive edge over institutions with which they are in competition for students, clinic represents an attractive way forward� of course, in an uncertain era in higher education it may also be the case that clinics 4 see, for example, the qaa’s student engagement chapter within its quality code for higher education, available at http://www�qaa�ac�uk/publications/informationandguidance/documents/quality%20code%20 -%20chapter%20b5�pdf, as well as the following article by the president of the national union of students: http://www�guardian�co�uk/education/2012/jun/12/power-to-students-says-liam-burns?intcmp=srch (last accessed 16th august 2012) 5 office of the independent adjudicator annual report 2011 p�4 http://www�oiahe�org�uk/media/57882/oia_ annual_report_2011�pdf (last accessed 16th august 2012) 259 models of clinic and their value to students, universities and the community in the post-2012 fees era represent a significant financial risk to many institutions, particularly in light of increased funding pressures� the benefits offered by clinic do carry with them potentially significant resource implications (particularly if the clinic is to be sustainable in the long-term), to which discussion will now turn�6 b) location and client systems in the long term any clinic may need its own office and secure storage space� there are examples of clinics which have initially started operating from a member of staff’s office for example, but this is not a viable long term alternative to having a dedicated, professional space into which clients and potentially external supervisors can come� client documents will need to be stored in a secure area (in order to guarantee client confidentiality) which the students can readily access� the students will need to be provided with clear training about how to maintain client confidentiality, how to ensure paperwork is maintained properly, how to maintain a client file, how to update information both in hard form and electronically, how to record information and where to store it� a reliable system of recording client contact and appointments needs to be established (assuming the clinic operates an appointment system), including all client outcomes (appointment; reasons for rejections; referral etc)� c) financial support costs of the clinic will vary with the supervision model adopted: if the university or school will insure the advice given then the costs will of course be higher than if the advice is insured by external supervisors�7 kerrigan provides further details of the costs which clinics are likely to incur, including office equipment, stationary and access to relevant research materials� 8 d) staffing the amount of time initially required to run the clinic very much depends on, for example, the number of staff within the school working on the clinic, the number of anticipated clients, the 6 the discussion within this section is primarily based on the authors’ experience of establishing and managing an in-house, advice-only model of clinic, whereby all clients are interviewed face-to-face on an appointmentonly basis, with the advice being given in writing� alternative models include clinics focused on specific areas of law/connected with particular charities or other external partners; advice and advocacy service; email-only service; simulated clinics; telephone-only services; face-to-face advice service; and drop-in clinics� for information about such models, or about the factors to consider during the process of establishing or re-developing a clinic see, for example lydia bleasdale-hill (2011) the experience of establishing and maintaining pro bono projects within an educational setting: a narrative, available at http://lawworks�org�uk/tmp_downloads/ i63n13v72v110l44x131t137b32g146t25l83z115a47j85v135/law-school-pro-bono-case-studies---bleasdale-hill�pdf; frank dignan (2011) ‘bridging the academic/vocational divide: the creation of a law clinic in an academic law school’ 16 international journal of clinical legal education 75; stacy caplow (2006) ‘clinical legal education in hong kong: a time to move forward’ 36 hong kong law journal 229; richard grimes and hugh brayne (2004) ‘mapping best practice in clinical legal education’ (ukcle) available at http://www�ukcle�ac�uk/ projects/past-projects/clinic/ (last accessed 16th august 2012); philip schrag (1996-97) ‘constructing a clinic’ 3 clinical law review 175; and w� warren h� binford (2008-09) ‘reconstructing a clinic’ 15 clinical law review 283 7 see richard grimes and martin curtis (2011) ‘lawworks student pro bono report 2011’ (lawworks, london) pp�15-17 for information about the insurance position of law schools surveyed� 8 kevin kerrigan ‘setting up a clinical legal education or pro bono project’ in kevin kerrigan and victoria murray (eds�) (2011) a student guide to clinical legal education and pro bono (palgrave macmillan, basingstoke) pp�31-37 260 international journal of clinical legal education issue 19 number of student volunteers, whether the clinic will only run in term-time and the number of external organisations the clinic will work with� once a clinic is established the potential for growth is highly likely to be linked to staffing� for example, more supervisors and/or additional administrative support might be necessary if an expanded clinic service is to be offered� the experience of the authors is that one member of academic staff with a nominal workload allowance allocated to the clinic can be sufficient to establish and initially run one,9 but that opportunities to evolve, develop and expand are most likely to be grasped only once significant staff time is invested in the clinic (either through an increased workload allowance, or thought the appointment of staff to work specifically on the clinic)� the costs inherent within that model might be easier for clinicians or the wider school to justify to those controlling the allocation of a school’s financial resources if the clinic exists on an assessed (as opposed to co-curricular) basis, primarily because the clinic would thereby be very clearly linked to the educational development of the students�10 3. supervision models broadly speaking, there are three supervision models which are the most popular within the united kingdom context11: 1� member(s) of academic staff (non-practising) directing the clinic, with external practitioners supervising the advice: under this primarily external supervision model at least one member of academic staff oversees the administrative functioning of the clinic as part of a wider job role (perhaps with some clerical assistance), while the advice is supervised by external practitioners� there are several ways of satisfying the insurance requirements under this model, the most common of which is to extend the university’s insurance policy to cover the advice supervised by external partners� a rarer approach is for advice to be supervised and insured by the external parties in question (this is the model used at the university of leeds, where the letters of advice are supervised, insured, signed and dispatched by partner law firms)� the former approach perhaps makes it easier to convince external partners to become involved with the clinic (because there are fewer liabilities and costs attached); the latter approach allows the university to distance itself from any potential liabilities� 2� a full-time or part-time clinic or pro bono director, either holding a current practising certificate or working alongside those with such certificates (with the associated insurance models described above)� the attraction of such a post is that it allows for some continuity (there are countless examples of clinics disbanding as a result of one particularly enthusiastic member of staff who was the main driver behind it departing the institution), and that it allows the clinic to be the primary focus of that person’s attention (something which is not always 9 although it should be noted that the leeds model involves advice being supervised by external practitioners; an internal practitioner model might require additional support 10 however, the decision has been taken at leeds for the clinic to remain outside of the curriculum for a discussion of the reasons why this decision was taken, see lydia bleasdale-hill (2011) the experience of establishing and maintaining pro bono projects within an educational setting: a narrative pp�11-12�there is also ample literature on assessment methods and models; see for example chapter thirteen of kevin kerrigan and victoria murray (eds�) (2011) a student guide to clinical legal education and pro bono (palgrave macmillan, basingstoke), and richard grimes and hugh brayne (2004) ‘mapping best practice in clinical legal education’ (ukcle) pp�78-81 11 examples of different models and their operation are discussed in lydia bleasdale-hill (2011) the experience of establishing and maintaining pro bono projects within an educational setting: a narrative 261 possible when clinic responsibilities are combined with teaching and research responsibilities)� this supervision model does however come with a heavier financial burden to the university due to the associated salary and practising certificate costs, and the potential insurance costs� 3� academic staff with practising certificates supervising the advice: under this internal supervision model academic members of staff in possession of current practising certificates are allocated time to supervise cases and the students working on them (perhaps in conjunction with a dedicated clinic director, or someone for whom that role forms a significant part of their workload allocation)� this has the benefit of creating a more sustainable clinic (because the clinic is not reliant on external partners for case supervision), as well as allowing the school greater control over the areas of law to be advised upon and the advice given� it also ensures the students are supervised in a way which enhances their learning opportunities: solicitors might not be as willing to refrain from simply giving the students the answer to a particular problem as someone with a clearer focus on the students’ development might be, recognising that doing so enhances the opportunity for students to actually learn for themselves� as giddings notes: ‘the practice-based context of clinical legal education has the potential to offer a very rich learning environment� however, the benefits of such an environment may be lost or diluted without close supervision or if the supervision is not focused on facilitating student learning as well as controlling casework� developing an environment in which students feel both suitably supported and challenged is a key aspect of the work of the clinic supervisor�’12 however, this model does carry with it significant resource implications: staff time will need to be allocated to overseeing the cases, and such time cannot always be distributed in an equitable manner (the amount of time staff spend on cases being determined not only by the skills and abilities of the student volunteers, but also by the complexity of the case and the areas of law accepted cases fall into)�13 there are also further potential insurance and practising certificate costs to take into consideration under this model� of course, each model has its own merits and each offers value to the key stakeholders associated with the clinic; this discussion is not intending to suggest otherwise�14 however, the experience of working within an external supervision model at leeds has provided the authors with an insight into the particular difficulties which can arise from that (in spite of an ongoing, supportive and mutually beneficial relationship with several partner firms)� while there are difficulties with an internal supervision model, based on the evidence available,15 the authors would not presently be deterred from recommending such a model to new clinicians (or to existing clinicians wishing to re-develop a clinic)� in order to provide further context for the adoption of this position, attention will now turn to how the value of the clinic to the students’ employability skills set might be enhanced (or otherwise) within any model of clinic� 12 jeff giddings (2008) ‘contemplating the future of clinical legal education’ 17 griffith law review 1, at 17� see also angela macfarlane and paul mckeown, (2008) ‘10 lessons for new clinicians’ 13 international journal of clinical legal education 65, at 68 13 lydia bleasdale-hill (2011) the experience of establishing and maintaining pro bono projects within an educational setting: a narrative pp�29-30 14 indeed, the success of the leeds clinic demonstrates that an externally-supervised model can offer real benefit to all three key stakeholders� 15 primarily gained through the experience of interviewing a number of colleagues running clinics at several institutions – see lydia bleasdale-hill (2011) the experience of establishing and maintaining pro bono projects within an educational setting: a narrative models of clinic and their value to students, universities and the community in the post-2012 fees era 262 international journal of clinical legal education issue 19 4. enhancing the value of clinic to students a) introduction it is well-documented in the academic literature that participation enhances the student’s employability skills profile�16 however, perhaps less discussed is the extent to which the clinic director, when establishing the parameters of the clinic, should orchestrate the type and level of employability skills gained by participants or, instead, should this development occur organically with minimal input by the director? this process is important because it is not inconceivable (it may even be likely) that a post-2012 student will be more instrumentally focussed on engaging only with those co-curricular activities that enhance career prospects� if the director is to take an active role in designing the employability skills outcomes then some decisions will need to be taken about the student profile that will inform these outcomes� designing the profile, however, is not straightforward since it raises a number of interrelated issues� for example, if there is a choice to be made, should the employability skills ambitions of the clinic be confined to enhancing skills peculiar to legal practice or should it cater to a broader market and therefore should there be an emphasis on developing generic, transferable skills? likewise, what kind of legal issue and, therefore, potential client should the clinic focus on? the underlying social justice aspects of clinical legal education suggest that the clinic should focus on those clients least able to afford legal advice,17 for example, by providing a stopgap to the shortfall in legal aid funding and local authority funding for cab�18 however, instrumentally-motivated students may be more interested in gaining exposure to the type of commercial disputes that midto large-sized law firms are involved in if their ambition is to obtain training contracts there� with these questions in mind, it becomes clear that there might be conflict between the community-minded ambitions of the clinic and the consumer-orientated interests of the student as well as conflict between the student who wants to pursue a career in legal practice and the student who wants to follow a non-traditional career path� the following discussion examines these two distinct issues: first, to what extent can potentially conflicting community and individual ambitions for the type of clinic work (and therefore employability skills arising from it) be resolved? secondly, to what extent should the formulation of employability skills be directed at specific legal practice skills or general transferable graduate employability skills? before considering how these issues might be grappled with, it is worth considering the potential range of skills that a clinic might involve� 16 see, for example, the discussion in ross hyams (2008) ‘on teaching students to “act like a lawyer”: what sort of lawyer?’ 13 international journal of clinical legal education 21-32; stacy caplow (2006) ‘clinical legal education in hong kong: a time to move forward’ 36 hong kong law journal 229; frank dignan (2011) ‘bridging the academic/vocational divide: the creation of a law clinic in an academic law school’ 16 international journal of clinical legal education 75 17 see discussion in stacy caplow (2006) ‘clinical legal education in hong kong: a time to move forward’ 36 hong kong law journal 229 on the history and ambitions of clinical legal education in the usa� 18 this concern animates frank dignan’s narrative about the legal advice clinic at the university of hull (frank dignan (2011) ‘bridging the academic/vocational divide: the creation of a law clinic in an academic law school’ 16 international journal of clinical legal education 75) 263 b) generic skills and specific skills arguably, participation in clinic work enhances student employability skills in two distinct ways: through the exercise of those skills and, perhaps more importantly from an instrumentalist perspective, by evidencing the existence of those skills� this latter point is useful to emphasise to the consumer-orientated student because law firms (particularly the larger ones) appear to place greater emphasis on co-curricular activities to evidence the type of skills they value than similar activities on the degree programme�19 indeed, it may be useful to bear this point in mind when considering whether to subsume clinical legal education within the curriculum� although hall and kerrigan for example advocate such a strategy,20 one consequence of this may be to devalue the currency of skills gained from the experience� consequently, employers may not value communication and organisational skills gained on a typical llb programme through active participation in a seminar programme, successful completion of a dissertation or participation in compulsory mooting or presentations to the same extent as communication and organisational skills gained through co-curricular participation in clinic� it may be that this reaction expresses the lack of distinctiveness in the claim that regular curricular activities enhance employability skills and that clinical education would not suffer in the same way because participation is more unusual and, usually, optional� participation provides obvious enhancements to the practice specific skill set through exposure to legal practitioners and the opportunity of interviewing clients, inputting into decisions on potential client suitability for the clinic, collating evidence and drafting legal letters� likewise, by inputting into decisions on a client’s suitability for the clinic and strategy for advice letters, participants have the opportunity to develop their ability to exercise personal judgement, independence or autonomy,21 skills that are characteristic of practising lawyers�22 as foley et al report, new practitioners often feel vulnerable in this regard for want of an opportunity to exercise those skills and the clinic provides an ideal controlled environment in which to take the first tentative steps, particularly since the constant oversight of the director (on questions of clinic suitability) and a qualified solicitor (on questions of advice strategy) provide an obvious safety net� it also introduces students to professional obligations such as preserving confidentiality, treating others with respect and dignity, punctuality, politeness and ethics� however, in common with other skills, time must be devoted to recognising and explaining the value of clinics in providing students with the opportunity to develop an understanding of the ethical demands of being a lawyer (or, indeed, working within a professional context)� kerrigan argues that clinic can be one of the best – if not the best – formats in which to teach students about ethics; not simply the ‘relevant professional lawyer codes but also a broader and deeper engagement with what it means to be a lawyer and the 19 see, e.g., ‘what law firms are looking for from new recruits’, the guardian, 14 february 2012, http://careers� guardian�co�uk/law-firm-careers-advice last accessed 14 august 2012� 20 jonny hall and kevin kerrigan (2011) ‘clinic and the wider law curriculum’ 16 international journal of clinical legal education 25-37� 21 tony foley, margie rowe, vivien holmes and stephen tang (2012) ‘teaching professionalism in legal clinic – what new practitioners say is important’ 17 international journal of clinical legal education 5, 18-19; stacy caplow (2006) ‘clinical legal education in hong kong: a time to move forward’ 36 hong kong law journal 229, at 231� 22 tony foley, margie rowe, vivien holmes and stephen tang (2012) ‘teaching professionalism in legal clinic – what new practitioners say is important’ 17 international journal of clinical legal education 5; ross hyams (2008) ‘on teaching students to “act like a lawyer”: what sort of lawyer?’ 13 int’l j. clinical legal educ. 21-32 models of clinic and their value to students, universities and the community in the post-2012 fees era 264 international journal of clinical legal education issue 19 moral attitudes, decisions and outcomes implicit in legal practice�’23 similarly, joy states that ‘only by taking primary responsibility for clients may any law student fully experience the ‘professional pulls and choices’ and the ‘balancing of loyalties and professional responsibilities’ of being a lawyer’24 however, taking part in clinic cannot, in and of itself, be sufficient to ensure such an understanding does develop� clinic directors should consider how their students will be trained to recognise and reflect upon opportunities to develop such an understanding within the clinic� students should have the opportunity to explore ethical issues and dilemmas which might arise within a case with their supervisor, and with each other: by doing so, ethical obligations offer a learning experience which might not otherwise be grasped�25 through exposure to real life legal disputes, by conducting interviews with clients and drafting advice letters following discussion with practitioners, participants have the opportunity to gain a deeper insight into the nature of legal advice in practice and, therefore, overcome that particular conceptual hurdle which plagues students of law: recognising that identification of liability is not the end sought by a hypothetical client but rather a means to an end, i�e�, advice on the range of options open to the client to resolve their complaint� once this threshold point is reached, participation also allows for an enriched view of the importance of client expectations and desired outcomes in framing advice� it is an opportunity for any remaining idealism about the operation of law to be tempered and realism instilled� in particular, participants glimpse the real world of law: e.g., that establishing liability can depend on any number of imponderables, such as witness performance at trial, evidential weaknesses, the commercial viability of the defendant and the wealth and/or appetite of the claimant for litigation� likewise, since outcomes are often negotiated prior to trial, solutions are often a product of compromise in which the litigation risks and associated legal fees are balanced against accepting a discounted settlement� also, not every litigant is primarily motivated by financial compensation and may attach just as great a weight to an apology or promise to change their practice so as to avoid future repetition� these considerations are often overlooked by the student of law and achieving an appreciation of them is often not helped by the mysterious labelling of them by graduate recruitment managers as ‘commercial awareness’ or ‘business acumen’� finally, student participants on the leeds clinic have reported an increase in their perceived level of specific transferrable skills, such as general communication and organisational skills (in identifying the nature of the potential client’s complaint through initial contact and subsequent interview as well as drafting the advice letter); team working skills; and leadership skills (in deciding strategy in both the interview and advice letter)� it is likely that working in a team will also provide opportunities to exercise negotiation skills, in particular, achieving the delicate balance between compromise and resolve� involvement in determining the suitability of a prospective claim for the clinic, requesting particular documents or evidence are brought to interview, researching 23 kevin kerrigan (2007) ‘how do you feel about this client? a commentary on the clinical model as a vehicle for teaching ethics to law students’ international journal of clinical legal education 7, at 7 24 peter joy (2003-04) ‘the ethics of law school clinic students as student-lawyers’ 45 south texas law review 815, at 837 25 see further peter joy (2003-04) ‘the ethics of law school clinic students as student-lawyers’ 45 south texas law review 815, at 840; chapter three of kevin kerrigan and victoria murray (eds�) (2011) a student guide to clinical legal education and pro bono (palgrave macmillan, basingstoke); jeff giddings (2008) ‘contemplating the future of clinical legal education’ 17 griffith law review 1, at 13� 265 the law to identify potential claims to suggest to the qualified solicitor and following up missing documents or evidence in order to draft the advice may also allow participants to demonstrate initiative and creative thinking� c) respecting specific and non-specific career ambitions in determining the parameters of the clinic experience for the participant, the director may draw inspiration from the us model(s)� however, in doing so, some caution is advisable in light of one significant difference, in particular, between us and uk legal education� law, in the us, is a post-graduate degree and it has been said that ‘most law students expect to practice law upon [graduation]’�26 the same cannot be said for uk students� in a recent survey commissioned by uk centre for legal education 47 per cent of respondents on a law degree course expressed a desire to enter the legal profession�27 in a similar survey conducted at the school of law, university of leeds, we found that 63�65 per cent of respondent students on the llb wanted to become a solicitor on qualification� the dilemma, therefore, for the director establishing a new clinic (or revising an existing one) is the extent to which this should be accounted for in the clinic design and recruiting method� should clinic participation be available only to those interested in becoming a lawyer? even then, there is a question about whether participation is confined to those who will practice in the areas of law that the clinic caters for, or whether it is reasonable to expect that there will be a natural process of self-selection whereby only those students interested in such a career path will apply� perhaps the most pressing reason why the clinic might be confined to those with a strong preference for a career as a lawyer is the expectation that such students are more likely to commit to the programme both in terms of time but also energy� conversely, those who are indifferent (or, even, hostile), to such a career may find the project unfulfilling or dull and there is, thus, a risk that this negativity may be transmitted to any partner law firm(s) and/or clients, damaging the reputation of the clinic over the longer term� of course, there is a certain degree of speculation in this assessment and these are not absolute reasons why those who do not wish to become lawyers should be barred from applying� to some extent, commitment to the clinic might be ensured where the participant is dependent on a positive reference from the clinic director afterwards� even so, it is understandable that sensitivities about the longer term success of the clinic (particularly where it is newly established) may influence directors to take a more restrictive approach to recruitment (and this is another reason why subsuming the clinic within the curriculum might be unattractive)� by doing so, however, the clinic is less inclusive and the opportunity to gain broader employability skills is lost by a higher number of students (in the case of leeds, this would mean up to 40 per cent of llb students excluded from consideration)� the consumer-orientated student may object to exclusion on this basis� there is also the possibility that students may become interested in a career as a lawyer having participated in the clinic, which should be weighed against the possibility that participants may lose interest in such a career having gained insights into the practical realities� 26 stacy caplow (2006) ‘clinical legal education in hong kong: a time to move forward’ 36 hong kong law journal 229, at 231� 27 http://www�heacademy�ac�uk/assets/documents/disciplines/law/hardee-report-2012�pdf last accessed 21 june 2012� models of clinic and their value to students, universities and the community in the post-2012 fees era 266 international journal of clinical legal education issue 19 a further issue for clinic directors to address is whether to restrict clinic involvement to undergraduates, or to also allow postgraduate students the opportunity to be involved� if both cohorts are allowed onto the clinic then consideration should be given to whether the clinic experience will offer the same value to each group� an undergraduate in their second year will potentially have fewer relevant skills than a second year postgraduate student, particularly one who has returned to education from the workplace� the same is true of mature entrants to an undergraduate programme of study� consideration should therefore be given to whether ‘one size fits all’ within the clinic context, or whether specific steps need to be taken to ensure each participant gains new employability skills from their involvement� at leeds both undergraduates and postgraduates are eligible for entry onto the clinic and care is taken to ensure the role each student is assigned is most likely to enhance their skill set� for example, students applying to be part of the 2012-13 clinic at leeds could apply to be either interviewers or managers� briefly, interviewers conduct interviews and research and draft advice letters whereas managers liaise with the clinic director about potential clients, organise interviews and obtain preand post-interview evidence from clients� clearly, different skill sets are being exercised in each of the two roles� the director might therefore take the decision to allocate a student with extensive administrative experience the advising (as opposed to office manager) role, in order to add value to their skills set� it is worth noting, however, that most students will gain some new skills from their clinic involvement, if only in the form of new legal knowledge� the areas of law covered by the clinic at leeds are such that many students have not studied them (family law and employment law being two prime examples)� regardless of whether participation is or becomes more inclusive to allow for participants who are not interested in the profession as a career, or whether it is restricted to particular year groups, the director may wish to consider whether the participant might specify or else nominate which employability skills they would like to develop on the course� by organising the clinic in such a way as to allow students to specify their preferred role (office manager/advisor), specific and nonspecific employability skills may be met� as a possible further enhancement of this, it may be possible for students to nominate the type of claims they wish to gain experience of� for example, those students who want to qualify into a large commercial law firm (at leeds, this accounts for 25 per cent of those interested in a career as a solicitor), may wish to avoid housing claims, for example, and concentrate on tax or employment on the basis they are unlikely to encounter such disputes in practice� of course, the feasibility of this approach is entirely dependent on the prospective disputes that clients bring to the clinic� it may be that a director can do no more than promise to give consideration to this preference in allocating files to participant teams� 5. meeting community, client and individual ambitions for the clinic the prospect of allowing students to decide which types of claims to be involved with raises a separate point� if students are keen to participate in the clinic principally to gain practical experience in those areas of law they wish to practice in, a conflict may emerge between the student’s individual ambitions and the larger social aims of the clinic� to what extent is it, therefore, important to resist student-led design of the clinic programme? to give the discussion context, frank dignan, director of the law clinic at the university of hull, in a thoughtful paper on the social aims of clinics, recently commented that in hull the creation of 267 the clinic had especial significance given the loss of £700,000 of funding for the local cab�28 the loss of financing for cabs as well as diminishing legal aid budgets is a significant contemporary problem and has obvious impact on access to justice� as dignan notes, clinics allow universities to connect with local communities, provide help and support to a broad range of individuals who could not otherwise afford it and provide students with the opportunity to gain deeper insights into the social and personal issues affecting those local communities�29 indeed, the benefits of law clinics to the local community (and to clients drawn from a wider geographical area) are wellestablished in the pedagogical literature30 and the dangers of specialisation to achieving this social justice goal have been outlined by lopez, who argues that the priorities of the community (and, it might also be said, client) should be foremost in clinic design�31 regardless of the type of law that the participant wishes to specialise in, an appreciation of these social issues can only be of benefit� in providing members of the public with free legal advice, many of whom (or even all of whom, depending upon a clinic’s target client base) could not otherwise access legal advice, clinic offers an opportunity for students to: ‘…begin to realise the distinction between legal rights and access to what they might perceive to be justice…injustice in cle has a real face, the students develop the skills to inform clients of the limits of the redress which they have, and a key skill was highlighted to the student lawyers in the necessity to learn to manage their own emotional reactions�’32 so, not only can participation provide personal satisfaction through helping others33 but it also provides valuable insights of benefit in practice of dealing with clients and managing client expectations� often, in larger firms, trainee solicitors may have limited opportunities to interact with clients to the same degree� similarly, since clinic clients are likely to be claimants rather than defendants, participation benefits the student by humanising the claimant’s needs and develops sensitivity to the claimant’s position, which can be valuable to enhancing negotiation techniques in practice� moreover, participation in a clinic focused on meeting social goals can be beneficial to a student’s employability prospects since it allows them to speak to the corporate responsibility agenda that many law firms have adopted (often in response to the corporate responsibility policies of large multi-national corporations who insist that panel law firms have similar policies in place)� 28 frank dignan (2011) ‘bridging the academic/vocational divide: the creation of a law clinic in an academic law school’ 16 international journal of clinical legal education 75, at 76� 29 frank dignan (2011) ‘bridging the academic/vocational divide: the creation of a law clinic in an academic law school’ 16 international journal of clinical legal education 75, at 77� 30 see, e�g�, stephen wizner (2001) ‘beyond skills training’ 7 clinical law review 327-340; antoinette sedillo lopez (2001) ‘learning through service in a clinical setting: the effect of specialization on social justice and skills training’ 7 clinical law review 307-326; james marson, adam wilson and mark van hoorebeek (2005) ‘the necessity of clinical legal education in university law schools: a uk perspective’ 7 international journal of clinical legal education 29-42; jeff giddings (2008) ‘contemplating the future of clinical legal education’ 17 griffith law review 1; w� warren h� binford (2008-09) ‘reconstructing a clinic’ 15 clinical law review 283 31 antoinette sedillo lopez (2001) ‘learning through service in a clinical setting: the effect of specialization on social justice and skills training’ 7 clinical law review 307-326 32 james marson, adam wilson and mark van hoorebeek (2005) ‘the necessity of clinical legal education in university law schools: a uk perspective’ 7 international journal of clinical legal education 29-42, at 34� 33 see discussion in james marson, adam wilson and mark van hoorebeek (2005) ‘the necessity of clinical legal education in university law schools: a uk perspective’ 7 international journal of clinical legal education 29-42, at 38-39� models of clinic and their value to students, universities and the community in the post-2012 fees era 268 international journal of clinical legal education issue 19 6. conclusion clinics hold a number of benefits to participating students, including the opportunity to establish preferred career paths and to develop transferrable employability skills within a controlled, supervised environment� however, this paper has sought to demonstrate that such benefits to students cannot be viewed in isolation, either from the clinical supervision model or from the agendas of the other two key stakeholders within a clinic (the institution within which the clinic is housed, and the clinic client base)� potential clinicians, new clinicians and existing clinicians must be alive to these competing agendas throughout the establishment and management processes and must be conscious of the fact such agendas will not necessarily be resolved once the clinic is well-established� the process of establishing a clinic is fraught with practical concerns regarding supervision, insurance, office protocols and practices, client confidentiality, client selection and recruitment and so on concerns which can easily override the bigger strategic question of why the clinic is being undertaken and who it is intended to benefit� this question applies not only to the students involved (what is it the clinic should give them?), but also to clients: what is their position relative to the students? are they equally important, or will the potential educational benefits of a case trump the client’s needs for support? equally, once a clinic is well-established sight should not to be lost of why it is being run� all clinics are likely to evolve over time in response to internal and external factors (not all of which will be within the immediate control of those responsible for the strategic direction of the clinic)� this paper has sought to highlight areas in which such competing agendas might emerge and to demonstrate how an internal supervision model might provide clinics with the optimum opportunity of overcoming the associated challenges� each model offers specific benefits to the three key stakeholders and each carries with it particular drawbacks, but the internal supervision model appears to offer the most flexibility to respond to competing (and potentially changing) agendas� the model adopted will of course depend upon an institution’s priorities and financial circumstances; the size of clinic; the extent to which it is feasible to work with external partners; and so on� however, the authors’ observations are that an internal supervision model (where the advice is supervised and approved by school staff) offers the most long-term benefits and value to key stakeholders� from an institutional perspective, an internal supervisor, although bearing extra costs, provides the clinic with more long-term stability than a model whereby the advice is approved and insured by external partners� under the latter model, the decision of a partner agency to remove itself from the clinic would have potentially disastrous consequences for the students, clients and institution, particularly if the clinic forms part of an assessed module� the internal supervision model also provides institutions with greater control over the strategic direction and growth of the clinic, allowing as it does the institution to respond to changes in the student and/ or client needs and adapt the clinical model and areas of advice accordingly� partnerships with external practitioners supervising the advice can potentially hinder such change, particularly if those external partners have different strategic aims to those of the institution� 269 from a student perspective an internal supervision model provides for more contact with the supervising practitioner than an external model (where contact might be limited to a short meeting and a few emails), which can in turn enhance the skills gained from clinic involvement� working alongside an internal practitioner provides students with an opportunity to gain more frequent and regular feedback on their clinic performances, with such feedback potentially more likely to be delivered in a pedagogically sound manner� should the feedback not be delivered in such a manner an institution is better able to provide suitable direction to ensure it is in future: doing so in the context of an external supervision model is much more politically sensitive, carrying with it a risk of alienation of partners upon which the operation of the clinic might be entirely dependent� the value of the clinic to the students is also potentially enhanced through an internal supervision model because such a model opens up the opportunity to adapt the manner in which the advice is given and the areas of law in which it is given� at leeds, for example, the clinic has generally been restricted to an appointment only, written advice model� alternative approaches are much more difficult to adopt, even if these would offer enhanced value to the clients� to take the example of a drop-in service, such as the excellent one provided by london south bank university:34 this would, under the leeds model, be difficult to manage because externally-based supervisors are allocated to particular pre-arranged clients on the basis of their areas of expertise something which would be almost impossible to arrange on a drop-in service� finally, the client can benefit from the internal supervision model, primarily because of the longterm sustainability offered by that model, but also because of the flexibility to respond to changing client needs such a model can offer� clinicians ought therefore to not be discouraged from developing, or re-developing, a clinic on the assumption that the competing agendas of the three key clinic stakeholders are likely to ultimately be insurmountable: rather, care must be taken to ensure that the supervision model adopted allows for as much flexibility as possible (within the financial parameters determined by the host institution), in order to respond to those competing (and potentially changing) demands� 34 http://www�lsbu�ac�uk/ahs/departments/law/legaladviceclinic�shtml, last accessed 16th august 2012 models of clinic and their value to students, universities and the community in the post-2012 fees era 270 international journal of clinical legal education issue 19 413 multi-disciplinary practice in a community law environment: new models for clinical legal education richard foster introduction the monash-oakleigh legal service (mols) is a community legal service auspiced by monash university, melbourne australia, and partly funded by victoria legal aid� mols was principally established to provide practical legal education to monash law students over 30 years ago, but has since evolved to focus also on serving community legal needs� incorporated within mols is the family law assistance program (flap) which, as the name suggests, deals exclusively with family law matters� flap students attend the family court each week with lawyers who provide assistance to clients in a duty lawyer capacity, as well as operating four clinical sessions each week within mols� like many community legal services, most mols clients experience a form of disadvantage and resultant financial difficulty� consequently, mols deals with a range of legal matters including: criminal law, family law, tenancy and neighbourhood disputes, and a number of credit, debt, and bankruptcy issues� in july 2010, the multi-disciplinary clinic (mdc) was established at mols to provide a holistic service to clients by involving students from three academic disciplines to deal with client issues� later, in december 2010 (the commencement of the university’s summer semester), students from one other discipline were included in flap and a third discipline was also adopted in the following semester� the mdc within the mdc the law practicum is combined with finance students and social work students who, as a team, provide assistance to clients of mols� the three students simultaneously take instructions from clients and refer the cases to supervisors together (one supervisor from each 414 international journal of clinical legal education issue 19 discipline) who then provide advice to the client� the students then return to their client to issue the advice and take any further questions or instructions� the three supervisors sit together with the three students at the same time so that it is a collaborative exercise� there are currently eight teams of three students operating over two clinical sessions each week� law students tend to lead client interviews and legal matters will usually be prioritised over financial or social issues in the first instance, although often non-legal issues come to share a priority and sometimes take precedence� students from each discipline are required to isolate aspects of the client’s situation that they can assist with in the context of their own discipline� for example, a client presenting with a request for assistance with a criminal theft matter may also be experiencing financial difficulties that the finance student may assist with, this may also be relevant to the court at the time of sentencing� similarly, a family law client may also need assistance with social issues from the social work student (as well as financial assistance)� flap the nature of supervision in flap varies somewhat to the rather structured system developed for the mdc� this is mostly due to the different resources available to flap which have resulted in a more fluid yet equally as effective supervisory model� with the benefit of two administrators (one of which is a lawyer) students are able to receive immediate guidance on the progression of matters� flap also has a comprehensive database of precedents, which has developed extensively over several years, accessible by students to assist with their cases� furthermore, client files are maintained on an electronic system which is accessible by the principal lawyer so that students’ work can be reviewed at any time� supervision with flap’s principal lawyer is regular but on a needs basis with immediate support being provided by administrators� of note is the increasing complexity of family law cases which, if dealt with only in regularly scheduled reviews with the principal lawyer, would require such a lengthy meeting that it would be impractical when compared with the provision of more regular and ad hoc assistance� contrary to the more profoundly team-focussed model applied in the mdc, non-law students in flap are called upon to assist law students and clients on a consultative basis rather than as a permanent member of any one team� in this way, non-law students may work with several different law students over the course of the semester and provide advice on a range of matters� assessment in addition to supervised casework, law students are required to attend weekly seminars, write and submit reflective journals every two weeks, participate in community engagement, and participate in weekly file reviews� their assessment is based 60% on casework, 20% on their reflective journals, and 20% on community engagement activities� finance students are required to prepare a 3000 word report of their experience in the mdc or flap for submission at the end of the semester, as well as prepare and present a 20 minute presentation based on their report� this report is mostly reflective in nature� they are also 415 required to participate in weekly file reviews in the mdc, or regular meetings in flap� their assessment is slightly different to that of law students as it is based 50% on their clinical work (supervisory observations of the quality of casework, client and team interaction) and 50% on their report and presentation� supervision two different models of supervision operate between the mdc and flap� in the mdc, weekly meetings involving each team of students and the supervisor from each discipline are conducted� in these meetings each student is required to provide both a verbal and written update on the progress and activity of each case that they are working on from the perspective of their academic discipline� in turn, supervisors provide feedback and advice on each case whilst at the same time paying due regard to the progress of each matter and the well-being of clients� the supervision model in flap differs markedly insofar as there is not a regular cross-disciplinary meeting between students and supervisors� instead, the non-law disciplines convene a meeting of their respective students on either a weekly or fortnightly basis in which general issues and unique cases are discussed� in this way, students not involved in a particular case can also share in the experience and learning of other students� to compensate for this lack of intensive and specific advice on individual cases during meetings, supervision during non-clinical periods in flap is more intense with administrators and non-law supervisors being available to students during every aspect of follow-up work� by comparison, the mdc favours a model whereby students use their own initiative to progress cases based on in-principle advice by supervisors, which is then confirmed and added to during weekly meetings� in both the mdc and flap, any action taken on a file and advice given to clients is provided and confirmed by the relevant clinical supervisor� learning and pedagogical outcomes orientation programs occur prior to the commencement of student placements and are conducted separately in each discipline� law students attend a comprehensive seminar program running over several days which covers information on specific areas of law likely to be encountered during their placements, as well as interview skills, social justice, communication skills, and procedural/ administrative information� social work students and finance students undergo a more general orientation that introduces them to the role of mols and the mdc, and canvasses the types of matters they are likely to encounter� it is intended that, over time, more advanced and specific sessions will be developed for non-legal students� to date, they have also been encouraged to attend legal seminars on a voluntary basis� in addition to the casework of the mdc, non-law students also have the opportunity to assist with court appearances� of course, the vast majority of learning for all disciplines occurs in the conduct of casework in the live clinical environment� priority is given, at least initially, to legal issues although this often quickly expands to financial and social issues� students are required to prioritise the client’s needs irrespective of which discipline’s expertise may be required, and then prepare a strategy in order multi-disciplinary practice in a community law environment: new models for clinical legal education 416 international journal of clinical legal education issue 19 to address all issues that have been presented� in some circumstances, clients may disagree with the prioritisation of issues that students (under supervision) determine, and at times clients disengage with the process for a variety of reasons, but in the majority of cases students are able to work with a client through the various legal, financial, and social issues they are confronting� this enables students to quickly and actively assimilate a working knowledge of the other disciplines that are contributing to the outcomes the client will benefit from� whilst it is not intended that students become versed in all three areas to the extent that they can provide advice in another field, it is certainly a positive outcome that students almost unavoidably develop a level of knowledge of the capacity of the other disciplines� consequently, students quickly develop an appreciation of longer term issues arising from a presenting legal problem� equally so, over the course of the semester students become increasingly adept at recognising longer term needs of their client even though these needs may be outside the realm of their own disciplinary practice� as the combining of students into multi-disciplinary teams at the commencement of the semester is largely a random exercise, the resultant experience of team based practical experience is amplified� students don’t just learn to “work together”, the experience extends from initially learning about the expertise of other students to establishing professional relationships with each other, and recognising and respecting the knowledge and function of the other students� perhaps obviously, the effect of demonstrating this in a live clinical setting provides for a rather acute form of learning� students also are encouraged to design their own work plans with minimal intervention from supervisors thus providing additional opportunities for students to develop their teamwork abilities� with responsibility for the dissemination of duties mostly left up to the students (subject to the relevance and contribution of each discipline), they develop mechanisms by which each student undertakes specific tasks, liaises with the client and/or other parties in relation to particular aspects of a client’s case, and maintains an active dialogue with the other students and supervisors in relation to the client’s issues� of course, each discipline has different expertise associated with it that would not previously have received particular attention from the other disciplines yet would certainly be beneficial to them� for example, in a practical sense, strong focuses on letter writing and, in a less practical way, special attention to the avoidance of ethical conflicts are both a matter of priority for law students� whilst these issues haven’t usually received the attention they deserve by the other disciplines, they are undoubtedly matters deserving of similar consideration by them� one of the primary considerations for social workers is the identification of possible mental illness; for both lawyers and consumer advocates (finance/accounting students) this often goes a long way towards understanding the reasons for a client’s predicament and should be given close attention before considering a course of action� similarly, social work students are given the opportunity to understand the legal process that their clients will be subject to as well as the financial options and protections that are available to them� finance/accounting students are able to develop a more intimate understanding of legal procedure and also a far more identifiable appreciation of the reasons that many clients find themselves in financial difficulty; these often are matters outside their immediate control such as behaviours of addiction, unemployment/retrenchment, illness or accident, family/marriage breakdown, mental illness, and variety of other influences not usually canvassed in the course of undergraduate education in accounting and finance� 417 consumer advocacy the placement experience and work carried out by finance/accounting students is referred to as consumer advocacy as this essentially denotes the delineation between law students undertaking civil case work and a consumer advocate seeking to avoid litigation� whilst there is a “financial counselling” movement in australia there is a separation between this and the work of consumer advocates (students) at mols as the financial counselling sector has no formal qualification universally attached to it and has little documented ethical or practical standards� however, the subject matter considered by consumer advocates in the mdc is mostly the same� consumer advocates deal with a variety of cases including: • credit and debt matters (including negotiations, debt write offs, and payment plans) • bankruptcy • disputes with banks, utilities and insurers • tenancy • centrelink (social security) • fines and infringements where lawyers are often at a loss to achieve a positive outcome because the costs of litigation in a consumer dispute are prohibitive, and social workers often find it difficult to refer paralegal matters to a cost effective practitioner (such as a community legal service), consumer advocates are able to exercise a client’s rights under industry codes of practices as well as legislation, and are able to advocate for clients in jurisdictions such as ombudsman services and tribunals� furthermore, consumer advocates learn to assess the validity of a claim against a client prior to considering how to negotiate with the other party� for instance, there have been many instances where australian banks and finance companies have engaged in predatory lending and other practices resulting in large debts that many disadvantaged consumers are unable to pay� consumer advocates learn to seek redress for this type of conduct which often results in the waiver or substantial reduction of the debt through either negotiation with the creditor, a complaint to an ombudsman, or a tribunal decision� similarly, positive outcomes for clients have been achieved in tenancy matters by considering the claim against the client in light of the regulatory framework and the views of the tribunal (vcat)� in addition to matters relating to regulation and legislation, consumer advocates are also able to ensure that clients are receiving all the government entitlements, concessions, and grants to which they are entitled� students also learn how to dispute the decisions of government bodies such as centrelink, the child support agency (which assesses child support payments), and the australian tax office, which often involves the drafting of lengthy applications and tribunal appearances� multi-disciplinary practice in a community law environment: new models for clinical legal education 418 international journal of clinical legal education issue 19 case studies mr n one of the mdc’s youngest clients, mr n was 13 years old and presented with his father who he had come to live with after having been involved in the assault of his mother’s new partner� at the time that he initially presented, an intervention order had been made against him as a result of allegations (later proved) that he conspired with his older cousin to have his mother’s partner assaulted by a number of youths in his mother’s home� he had been residing with his mother and his younger sister until the time of the assault, his mother and father had divorced some years earlier and the subsequent relationship with his father had not been close� the intervention order prevented him from going to his mother’s home and from contacting both his mother and his sister� shortly after his initial presentation to the mdc, he was charged with conspiracy to assault, his cousin had also been charged with related offences� the law student acted for mr n by taking instructions and briefing counsel in relation to the criminal charges he was facing in the children’s court� the social work student worked with mr n to try to rebuild the relationship with his mother and his sister, and to deal with issues relating to his mother’s new relationship� there was also some attention by the social work student given to his current living arrangements as his father seemed to become gradually more disengaged� living with mr n and his father were his elderly grandparents which seemed to be increasingly reliant on mr n after his father started to spend more time travelling back to his home country� the finance student was made aware of some financial difficulties that mr n’s father was experiencing� he had accumulated approximately $60,000 in credit card debt and his only income was unemployment benefits� school fees owing to mr n’s private school were also unpaid and it was considered important by all students and supervisors to maintain stability by keeping mr n in the same school, particularly as it had been especially supportive� mr n’s father did not own any material assets, accordingly it was considered that his best option would be bankruptcy although an arrangement was reached in relation to the outstanding school fees� this would extinguish his liability for the debts he couldn’t pay� mr n’s father, however, had applied and had been granted a partial early release of his superannuation over one year earlier and had asked if he could do the same again� he was advised that he could, although as he had not previously considered bankruptcy he instructed that he now wanted both to seek another early release of his superannuation as well as declare bankruptcy� in essence, this would mean that he would be advising the superannuation regulator that he was seeking funds from his superannuation in order to pay his debts, when in actual fact he would be declaring bankruptcy and not paying his debts at all� this would result in him gaining the money from his superannuation under false pretences and not using it to pay his debts� quite obviously, this raised serious ethical issues such that we could not act on these instructions and he was advised accordingly� mr n’s father then instructed that he would seek the early release of his superannuation himself (having done so before)� we understand that he returned to his home country and remained there for quite some time� mr n was required by the children’s court to continue counselling� the court gave due regard to a report by the social work student, and the efforts of the finance student were exceptional despite the somewhat questionable motives of mr n’s father� regardless, the finance student (as well as the other students) gained an invaluable insight into both a new set of options for clients in these circumstances as well as the ethical considerations that must be given to client instructions� 419 mr a mr a’s presenting legal issue was a criminal charge of obtaining property by deception (fraud) from centrelink, the organisation responsible for social security in australia� the charge arose from mr a having under-declared his earnings and thus having received a larger unemployment benefit than he would ordinarily have been entitled to over several years� he had been working as a taxi driver and had been declaring some but not all of his earnings� the mdc’s law student took instructions and briefed counsel in relation to his criminal matter on which he pleaded guilty� emerging from his instructions in relation to his criminal matter was the issue of some $30,000 owing in traffic infringements� for the most part, these related to the regular use of a toll road without the requisite vehicle tag and account� it was apparent to the students that mr a did not appear to completely understand why he had been accused of fraud against centrelink, nor did he have an adequate comprehension of his obligation to report all of his earnings� this gave rise to some concern about his neurological capacity and, despite all attempts, victoria legal aid would not agree to fund a neuropsychiatric assessment� the social work student, however, was able to prepare a psycho-social assessment which was presented to the court and given some weight� the finance student was able to scrutinise the brief of evidence which exposed inaccuracies in the quantum of the alleged fraud� the prosecution had relied upon information from centrelink which essentially considered only mr a’s gross taxi takings in respect of the earnings that he ought to have declared� this was inaccurate because it did not take into consideration the costs of insurance, the toll road (although the fees were unpaid), and fuel for the taxi� the amount was consequently re-calculated by the finance student and the brief was amended by the prosecution accordingly� the finance students continue to assist mr a in connection with his traffic infringements with a view to these being dealt with by a magistrate in court� mr a’s criminal matter was dealt with by the magistrates’ court and, due in no small part to the contribution of the social work student’s report, escaped without a conviction for the offence� despite efforts to require substantial repayments of the amount owed to centrelink, with the assistance of the finance student these were minimised� in short, a summary of pedagogical outcomes can be seen as follows: • lateral analysis of problem solving with exposure to other disciplines • team work across disciplines, negotiation and collaboration • broad understanding of non-legal aspects of legal casework • appreciation of social disadvantage and the causes and effects of poverty • greater awareness of social justice issues and how the various disciplines can play a corrective role multi-disciplinary practice in a community law environment: new models for clinical legal education 420 international journal of clinical legal education issue 19 conclusion the benefits of multi-disciplinary practice are somewhat obvious for students, but the benefits to clients should not be understated� where there are benefits to students, there are usually benefits to clients too� whilst there will always be challenges in relation to finding the right supervisors (that is, those with appropriate and relevant practical experience and knowledge combined with the ability to teach and mentor), once this is overcome the other challenges that inevitably arise are far more easily dispensed with� for example, it is clear that the very nature of multi-disciplinary practice almost invites opportunities for disagreement and conflicts with the priorities of the different disciplines� however, dealing with these constructively and respectfully creates even greater learning opportunities for students and better outcomes for clients� perhaps demonstrable by this paper alone, which should be considered as a summary document of the mdc program, is the substantial research opportunities that programs such as this also invite� contact information: richard foster fellow, faculty of business and economics monash university, clayton campus, australia clinical supervisor monash-oakleigh legal service 60 beddoe street clayton vic 3168 ph: 61 3 9905 4333 fax: 61 3 9905 1113 email: rfoster06@gmail�com assessment in the legal and medical domain: two sides of a coin cees p.m. van der vleuten1 maastricht university introduction it has been such an honour to read the assessment papers in legal education that were written with an earlier paper of mine (c. p. van der vleuten & schuwirth, 2005) as a frame of reference. the papers provide an excellent insight in a number of assessment practices in different law schools. very striking were the similarities of the issues that are discussed from the legal domain to my own domain, the field of medicine. the papers are addressing notions of reflections, reflective practice, the importance of learning (and assessing) in context (either simulated or real) developing professional competences, definitions of professional competence, the relevance of general skills (professionalism, ethics, values, altruism, empathy, clientcenteredness, managing themselves and others in work), and new approaches to assessment (journals, portfolios, extracted examples of work, observation, thinkaloud in practice and holistic approaches to assessment). all these notions completely resonate with developments in the medical domain. for this contribution i thought of summarizing some recent developments in the medical domain having 1 cees is professor in the faculty of health, medicine and life sciences, school of educational development and research ( special issue problematising assessment in clinical legal education ) ( 156 ) relevance to all these topics: competency frameworks, assessment of performance in context, reflection, and programmatic assessment. this is meant merely as an informative mirror on what happens in this other domain. competency frameworks the issue of competency and competency definitions has been articulated strongly in the medical domain in recent years. a whole number of countries around the world have engaged in consensus procedures leading to a set of competency frameworks that are nationally agreed upon. among the most prominent ones are the ones from the us, canada and the uk such as described in table 1 below. united states (acgme)2 canada (canmeds)3 united kingdom (good medical practice)4 · medical knowledge · patient care · practice-based learning & improvement · interpersonal and communication skills · professionalism · systems-based practice · medical expert · communicator · collaborator · manager · health advocate · scholar · professional · good clinical care · relationships with patients and families · working with colleagues · managing the workplace · social responsibility and accountability · professionalism many other countries have similar agreed competency frameworks and they vary to some degree. each of these competencies within the framework is further defined 2 accreditation council of graduate medical education (2009). common program requirements: general competencies. from http://www.acgme.org/outcome/comp/generalcompetenciesstandards21307.pdf 3 frank, j. r., & danoff, d. (2007). the canmeds initiative: implementing an outcomes-based framework of physician competencies. medical teacher, 29(7), 642-647. see also: http://www.royalcollege.ca/portal/page/portal/rc/canmeds/canmeds2015 4 general medical council (2013). good medical practice: working with doctors for patients. from: http://www.gmc-uk.org/guidance/good_medical_practice.asp into behaviours. the frameworks have been developed in extensive consensus procedures with abundant stakeholder input. what is really interesting is that most competencies emphasize skills outside the “knowledge domain”. they also bear similarity to the skills summarized above that were found in the legal papers. these skills are apparently less bound to the domain in which they were developed. the descriptions of the competencies show remarkable similarity across frameworks. so apparently when different organizations consult stakeholder groups for reaching consensus on what professionals should be able to do, they reach rather similar outcomes. the frameworks have had and still have vast consequences in medical education. they have become the standard by which medical training programs are increasingly being structured both at the undergraduate level as well as at the postgraduate level. to give you an example, the netherlands has adopted the canmeds system and has given it legal status. training programs have to be built around the competency framework, assessment strategies have to be developed to assess these competencies and accreditation procedures inspect the attainment of the competencies. what typically happens is that longitudinal curricular lines are created in which teaching, learning and assessment activities take place in a more coordinated fashion. this is not easy to achieve change, because most training programs are very modularly structured with little transfer of information from one module to the other. good implementation of competency-based education is therefore challenging and requires good governance of the curriculum as a whole. many universities and their programs are not used to such kind of governance. nevertheless, the rising importance of the competency frameworks requires universities and postgraduate training institutions to change. an interesting more recent development has been an alternative way of defining what is competence. it is very difficult for clinical teachers to understand exactly what collaboration means or professionalism or communication and how to define if you master enough of it. when a critical professional activity is taken, say handling a normal delivery of a child, it is clear for any clinician with whom to collaborate, how to act professionally and with whom to communicate. subsequently a decision can be taken on the level of entrustment of the learner in relation to performing the critical professional activity independently. often this is done on an entrustment scale with varying degrees of supervision: observing the activity, acting with direct supervision present, acting unsupervised, providing supervision to juniors. standards are now defined language that clinicians understand feel acquainted with it. they continuously make judgments about patient safety and that is what this entrustment related to (kogan, conforti, iobst, & holmboe, 2014). the critical professional activities have been termed entrusted professional activities (epas) (ten cate, 2013). epas are currently conquering the medical education world and various disciplines have identified their epas. by mapping these epas on competencies and by formulating at which level of education “milestones” of competencies in the form of rubrics need to be achieved a comprehensive framework can be developed. epas have helped shaping what we wish to train and assess in the words of the professionals in the domain thereby creating a natural buy-in and a formal language on what to train and assess.5 assessment of performance in context many competencies in table 1 are behavioural in nature. experiential learning is imperative for learning these skills either in the form of simulation or in a real world work setting. behavioural skills can only be assessed by direct observation. therefore many observation instruments have been developed and validated in medical education. for simulated performance simulated performance testing is widely used. they are called objective structured clinical examinations and virtually every medical school in the world uses it (harden, lilley, & patricio, 2015). however, since a number of years assessment methods are developed that used in the unstandardized real clinical environment (norcini & burch, 2007). one very popular method is called the mini-clinical evaluation exercise (mini-cex). an assessor directly observes a learner while doing a clinical activity, fills in an assessment form (usually structured according to the canmeds competencies), and then gives feedback often in the form reflective questioning. finally some actions are formulated. rubrics are often used to describe the performance quality. narrative written feedback is strongly encouraged. the mini-cex is repeated a number of times while the learner is in a same clinical setting. 5 an illustration of such a mapping exercise can be found here: https://www.acgme.org/acgmeweb/portals/0/pdfs/milestones/pediatricsmilestones.pdf another popular instrument is the multi-source feedback (msf). a questionnaire is (electronically) sent to a range of assessors who are relevant to the learner (clinical supervisors, peers, nurses, patients, secretary at the desk, etcetera). the learner also has to complete one as a self-assessment exercise. the questionnaire is also structured according to a competency framework. each assessor completes the questionnaire (mostly anonymously) and data are aggregated across assessors. a feedback report is generated, for example in a spider chart format showing the selfassessment score, the average assessor score and the cohort score. narrative information is also here very much encouraged and is part of a feedback report. often the feedback is moderated in a discussion between supervisor (or mentor) with the learner after the msf has been completed. msf procedures are becoming also increasingly popular to assess clinicians in their daily working role as part of their continuous professional development (overeem et al., 2010). finally portfolios have become very popular. in a portfolio the evidence burden is reversed. not the teacher but learner has to prove competence. therefore the portfolio contains evidence and reflections from the learner. portfolios have been well researched in medical education (e. driessen, van tartwijk, van der vleuten, & wass, 2007), (buckley et al., 2009). many portfolios now are online and provide all kinds of assessment services (e.g. conducting an msf assessment) and aggregation tools. there are many more instrument to assess the performance of learners in a clinical context. the more enriching the feedback is, the more serious assessor and learner take these assessments, the more engaging these assessments can be. as is often mentioned in the legal papers on assessment, time is a concern and finding ways to embed these assessment activities in the routine of daily practice is a challenge. reflection and mentoring experiential learning and reflection are closely related. a number of the legal papers discussed the use of reflections for example in the use of diaries. reflective learning is emphasized in educational theories such the well known model from schön (schön, 1983) and korthagen (korthagen, kessels, koster, lagerwerf, & wubbels, 2001). reflection is the link between the feedback and the performance improvement (sargeant, mann, van der vleuten, & metsemakers, 2009). most of the feedback is ignored by learners (kluger & denisi, 1996) and making learners reflect may facilitate the use of feedback. just like in legal education reflection is not always considered to be enjoyable by learners. reflection should have a clear education value or otherwise learners disengage with it. in medical education this is often done through mentoring either in peer groups of with faculty coaches or both. mentoring has been broadly studied and has shown considerable effectiveness on increased use of feedback, improved professional development, career preparation and success and prevention of production loss such as for example through burnout (e. w. driessen & overeem, 2013). it has also been a key issue to the success of the use of portfolios and self directed learning (e. driessen et al., 2007). reflection has therefore had considerable attention in medical education in recent years and is part of many modern assessment approaches where learners are connected to mentors or coaches and their longitudinal performance on competency development is being monitored and discussed. learning complex skills, experiential learning, assessment providing feedback, longitudinal monitoring and coaching are all important ingredients that mutually influence each other in a positive way. the ingredients provide the bricks of a highly powerful learning environment. programmatic assessment in recent years a more synthetic approach to assessment has been proposed that integrates many of the insights discussed above and is called programmatic assessment (c. p. van der vleuten et al., 2012). in this approach a whole assessment program is purposefully designed very similar to a full curriculum design. methods are carefully chosen for their educational function in that moment in time and in relation to other methods being used in the program. methods purposefully require a variation in activities: verbalizing, writing, arguing, defending, synthesizing, all following the educational purpose of the learning program. each moment of assessment is considered to be one data point. decision-making on pass/failing is disconnected from individual data points. individual data points only provide feedback to the learner. decisions are based on many data points by aggregating the information across data points being gathered. the higher the stake of the decision the more data points are needed. learners are coached in using the assessment information for planning their learning or for remediation. an overarching structure such as a competency framework is used to aggregate the assessment information (and other learning information such a learning or work products) in a meaningful way. independent committees take progression decisions based on all the information. currently a number of education practices are using programmatic assessment in their curriculum (dannefer & henson, 2007), (bok et al., 2013), (heeneman, oudkerk pool, schuwirth, vleuten, & driessen, 2015), (chan & sherbino, 2015) and many more are working towards it. although educationally appealing, changing towards programmatic assessment presents a great challenge requiring substantial staff buyin, good leadership and strong central governance over the curriculum. many universities lack such organizational virtues. nevertheless, parts of programmatic assessment, i.e. the feedback orientation or the mentoring, are very valuable approaches to modernize our assessment more evolutionary. often one hears that assessment drives learning. in programmatic assessment learning drives assessment. perhaps many more ways of assessment are viable in our educational practices inspired on this mantra. conclusion medical education has embraced the move towards competency-based education in which consensus is sought on what to train. assessment methodology is following this movement resulting in considerable more performance assessment in the reality of the professional context. this move has been strongly promoted to the problems in health care and patient safety (frenk et al., 2010). without responding to the needs of society education will fail on its mission to prepare our learners for the labour market. it is difficult to compare the needs in legal and medical education, but from the papers it is clear that many parallels do seem to exist. as has been mentioned a number of times in assessment papers in legal education, cost is an issue. all the assessment approaches above are not cheap. in reality staffstudent ratios are probably worse in legal education as compared to medical education. despite of the cost and the realization that we will not get more funding, we need to think of ways how to implement some of these ideas. we will not be able to resolve this resource constraint without more fundamental scrutiny of our funding allocation in education. in my view we spend too much resources on information transmission to learners (c. van der vleuten & driessen, 2014). learning is about information processing and not about information consumption. in my view it is a waste of resources that the same but different professor gives the same lecture across rather similarly across the world. expensive teacher time should not be wasted to information delivery but to the scaffolding of the information processing of learners, preferably in small face-to-face settings. meaningful assessment information providing the necessary feedback to the learning is part of this scaffold. two of the most powerful effects on learning are then united: the teacher and feedback. what more could you wish for? references bok, h. g., teunissen, p. w., favier, r. p., rietbroek, n. j., theyse, l. f., brommer, h., jaarsma, d. a. 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(2007). portfolios in medical education: why do they meet with mixed success? a systematic review. medical education, 41(12), 1224-1233. driessen, e. w., & overeem, k. (2013). mentoring. in k. walsh (ed.), oxford textbook of medical education (pp. 265-284). oxford: oxford university press. frenk, j., chen, l., bhutta, z. a., cohen, j., crisp, n., evans, t., . . . zurayk, h. (2010). health professionals for a new century: transforming education to strengthen health systems in an interdependent world. lancet, 376(9756), 1923-1958. doi: 10.1016/s0140-6736(10)61854-5 harden, r. m., lilley, p., & patricio, m. (2015). the definitive guide to the osce: elsevier health sciences. heeneman, s., oudkerk pool, a., schuwirth, l. w., vleuten, c. p., & driessen, e. w. (2015). the impact of programmatic assessment on student learning: theory versus practice. medical education, 49(5), 487-498. kluger, a. n., & denisi, a. 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(2010). three methods of multi-source feedback compared: a plea for narrative comments and coworkers' perspectives. medical teacher, 32(2), 141147. sargeant, j. m., mann, k. v., van der vleuten, c. p., & metsemakers, j. f. (2009). reflection: a link between receiving and using assessment feedback. advances in health sciences education: theory and practice, 14(3), 399-410. doi: 10.1007/s10459-008-9124-4 schön, d. a. (1983). the reflective practitioner: how professionals think in action (vol. 5126): basic books. ten cate, o. (2013). nuts and bolts of entrustable professional activities. journal of graduate medical education, 5(1), 157-158. van der vleuten, c., & driessen, e. (2014). what would happen to education if we take education evidence seriously? perspectives on medical education, 3(3), 222232. van der vleuten, c. p., & schuwirth, l. w. (2005). assessing professional competence: from methods to programmes. medical education, 39(3), 309-317. doi: 10.1111/j.1365-2929.2005.02094.x van der vleuten, c. p., schuwirth, l. w., driessen, e. w., dijkstra, j., tigelaar, d., baartman, l. k., & van tartwijk, j. (2012). a model for programmatic assessment fit for purpose. med teach, 34(3), 205-214. doi: 10.3109/0142159x.2012.652239 book review learning in landscapes of practice: boundaries, identity, and knowledgeability in practice-based learning edited by etienne wenger-trayner, mark fenton-o'creevy, steven hutchinson, chris kubiak, beverly wenger-trayner i came to this book familiar with (but not wholly well-versed in) the work of etienne wenger and therefore curious about the developments in his previously proposed themes of communities of practice and social learning through this new multi-editor text. as a teacher educator and researcher in the field of professional learning the book offered an opportunity to extend my knowledge base and reflect on the conceptualisations of learning by other practitioners through their own and other's eyes. it also felt like a genuine invitation into other lives and ideas. the illustrative elements of the book provide windows into the worlds of teachers, social workers, academics, arts practitioners, leaders, health and medical practitioners, childminders, business-people and students amongst others. these are real examples, gathered by the authors through participant engagement in research and professional development structures. without doubt the book fascinates. there is substantial space given to stories of learning in practice. even without engaging at a theoretical level with the conceptual frameworks and lenses offered the stories create reflections on experience which are thought-provoking, evocative and illustrative. their contexts and subjects are diverse. they focus on learners and those who create and manage learning opportunities. they include narratives which interrogate the relationships between individuals and systems. while sharp and interesting contrasts emerge in lives of learners, the stories have a common denominator in the central significance of learners' practices and the landscapes in which they are located. as would be expected the relationships between work and learning and the nature of practice that forges these relationships is explored. even the practices underpinning the writing of the book are reflected upon offering the reader another layer of insight into an often opaque academic practice of combined and collected scholarship. the stories are framed in the theory building process underpinning the book. the metaphor of landscapes for contexts of practice is introduced, sustained and developed. as a former geography teacher i found this metaphor to be vibrant and intellectually engaging. the sense of movement or journeys across landscapes, the fact that landscapes themselves evolve and are influenced by local and more distant forces makes sense. extending the construct to boundaries between landscapes builds the theory and allows the conceptualisation of boundary objects and brokering in practice-based learning to be explored. at times the reader may need to engage with a degree of imagination, reading between the lines to create meaning as the ideas come thick and fast. this depth and richness however offers huge potential for re-visiting the book. taking ideas and relating them to one’s own cases of practice, framing and re-framing learning experiences, hurdles and destinations. the authors provide new means though which knowledge and knowledgeability can be conceptualised. while they offer stories the book is not whimsical or simply documentary. it does not offer a theoretical certainty, these ideas remain in formation, other metaphors may in future be developed and the conditions and nature of contemporary work and practice will continue to evolve. the book does however offer a genuine antidote to a conceptualisation of training, trainees and trainers which dominates so much of the discourse in the disciplines and fields illustrated in the chapters. through the patchwork of chapters the authors deal with complexity in a way that makes that complexity a compelling and alluring aspect of the landscape of practice which we inhabit and through which we learn. it explores critical concepts in practice-based learning such as identity forming, accountability and the competing and sometimes conflicting voices in the landscape. the book will resonate with readers interested in professional and practice-based learning, for those dealing with issues of learning through boundary crossing and participation in communities of practice. it will engage new scholars and practitioners in this field as well as re-engage those of us who have been around this landscape a few times in the past. dr rachel lofthouse, head of teacher learning and development, newcastle university, uk. 257699b_ijcle_july_09 5 foreword foreword ijcle conference july 2009, western australia the 7th international journal of clinical legal education conference was held in conjunction with the 10th australian clinical legal education conference on 9th–11th july 2009 in perth and fremantle, western australia. the host institution was the school of law, murdoch university in perth and the excellent local organisers were the team from scales community legal centre led by anna copeland and gai walker. the conference title was “global, local clinical: clinical legal education in a shrinking world.” it focused on the global reach of clinical legal education and the many ways in which clinical projects cross geographical, social and cultural frontiers the range of delegates was reflective of the conference theme with contributors from a very wide range of jurisdictions including: australia, canada, china, india, hong kong, japan, malaysia, nigeria, south africa, thailand, united kingdom and the usa. the conference was held on lands traditionally owned by the nyoongar people and the conference was graciously welcomed by marie taylor, whadjuk ballardong, nyoongar burdiya yogka, who evoked the image of a conference as a campfire conversation where people gather to relax with friends, share experience and learn. i believe the conference succeeded in achieving these and many other outcomes. delegates were inspired by the exceptional standard and rich diversity of the papers that were presented. it is always invidious to select highlights from a conference but special mention must go to the keynote speeches which underpinned perfectly the conference themes and provided ideal plenary focal points throughout the three days of diverse discussion. professor frank bloch opened the conference with his paper, the global clinical movement: opportunities for growth in an ever shrinking world. he showed how clinical programmes, although primarily dealing with localised concerns, draw upon universal principles relating to education, social justice and human rights. he suggested there is potential for greater international development as clinicians continue to forge partnerships and organisations such as the ijcle and the global alliance for justice education bring clinicians together and raise awareness of opportunities for cross-border collaboration. a significant contribution to international awareness will be the book frank is currently editing on the global clinical movement. we very much look forward to its publication. professor david mcquoid-mason delighted the conference with his interactive session, using kafka’s the trial to teach law students about due process rights. delegates played the parts of prisoner, prison guard, inspector, lawyer and magistrate as josef k’s labyrinthine legal nightmare unfolded. the audience offered insights from their own legal systems as to the rights that were granted and denied by the authorities in kafka’s classic novel. the session provided an excellent illustration of how clinical methodology can be invoked with relatively large groups and using limited resources to raise awareness of human rights norms, contrast levels of protection in different legal systems and focus attention on the importance of due process. anna cody provided an ideal closing keynote with her paper, “yes we can”: teaching clinical students about social justice and human rights. in it she argued that although law students may be motivated to commence clinical programmes for a multitude of reasons they are almost always intensely affected and sometimes transformed by the social injustice they encounter and the realisation that they can contribute to the achievement of social justice and human rights on behalf of individual clients and the wider community. although focusing on the australian situation, the issues were clearly applicable across most clinical contexts. the paper was followed by a panel discussion involving contributions from helen yandell, jeff giddings, fran gibson and anna copeland and a lively debate about potential tensions between educational and social justice objectives. the parallel sessions are the scholarly core of a conference such as this and we were extremely fortunate to present 32 concurrent papers over the course of the conference. we had papers on the interface of law and medicine, international business development, representing children and disabled clients, clinics in conflict zones, new clinics, bi-legal clinics, e-clinics, debt clinics and migration clinics. papers considered how to assess in clinic, how to select for clinic, clinic survival, the use of psychiatry in clinic, the role of ngos in clinic, doctrinal law in clinic, gender in clinic and clinical supervision. we learned about clinic development in various jurisdictions including japan, hong kong, nigeria, malaysia and the gulf region. overall the parallel sessions revealed the rich diversity of clinical activities and pedagogy that enables this conference to flourish. finally, no conference is complete without a social calendar and the ijcle has always prided itself on making the evening sessions at least as lively as the day. an excellent programme was arranged by the scales team including pre conference dinner at a brewery, “sundownder” at the law school, conference dinner at a swan valley winery, a visit to a nature park and an amazing demonstration of aboriginal culture, music and dance. the generosity, warmth and humour of our hosts will be an enduring memory of this conference and will be hard to equal … but we will try… ... ijcle conference 2010: newcastle, england for the first time the ijcle conference will come home to northumbria university in newcastle upon tyne, england. the provisional dates for the conference are weds 7th–fri 9th july 2010. home to fine georgian architecture, the quayside cultural quarter, unspoilt coastline and the world heritage sites of durham cathedral and hadrian’s wall, the region is a gem and the city is a delightful cosmopolitan centre which embraces visitors from all over the world while retaining a strong regional identity. the conference will be hosted in the new purpose built law school at northumbria university and the conference planning group is already busy devising an exciting programme of events. please check the website www.ijcle.com for further details and the call for papers which will be issued in the autumn term. in this edition the opening lines of robert schehr’s article set the scene for a polemical analysis of the state of legal education in the usa and the failure to realise the benefits of clinical methodology: maintenance of status quo law school curricular design and delivery, along with the continued marginalization of live client clinic programs, and the discordant objectives of law schools as compared to the expectations of bar passage, serve to stifle the role of juridic practitioners in the service of justice. 6 international journal of clinical legal education july 2009 schehr adopts dewey’s characterisation of the traditional law professor mentality that “the lord speaks through me” and argues that despite decades of research and debate little has fundamentally altered in law school instruction so that “teachers are the sifters and transmitters of wisdom and knowledge, and they alone serve as the arbiters of truth”. drawing on analyses of the position of innocence projects in legal education the article argues that the marginalised position of such schemes is indicative of a more general failure of law schools to appreciate and embrace the more holistic education that clinical method can offer to law students. he applies postmodern and lacanian insights to law curriculum design and delivery and views the socratic method as a “master narrative” that “perpetuates hierarchical political, economic, and cultural relations” creating a “system-reproducing steering mechanism” that will “inhibit truly innovative pedagogical practices”. the analysis presents a bleak view of current us legal education; although schehr reminds us that the recent carnegie report and stuckey’s best practices report also present damning appraisals of the lack of pedagogic ambition in law schools. the article seeks to provide an indication of a way forward by drawing on student development theory research and arguing for integration of clinical methodology so that “no longer would clinics be marginalized, they would become the normative model of effective law school pedagogy.” victoria murray and tamsin nelson ask the intriguing question, “assessment – are grade descriptors the way forward?” they outline the recent move in their clinic from criteria referenced assessment to the use of grade descriptors and report on the research they conducted into attitudes of staff and students towards the new assessment methodology. these developments are situated in the context of wider issues involved with grading of clinical performance including the debate about the appropriateness of assessing clinical modules at all. the article concludes that the initial research suggests both faculty and students support the use of grade descriptors as a useful benchmark against which to measure existing and potential performance and providing some reassurance of greater transparency and consistency in the grading process. antoinette sedillo lopez, cameron crandall et al outline an innovative collaboration between medical and legal clinics at the university of new mexico. the project adopted a novel amalgamation of the standardised patient, which is a routine teaching tool for medical education and the standardised client, which is a more recent and less widely used method in legal education. this was performed in the context of domestic violence scenarios so that the medical students completed a clinical meeting with an actor playing the part of an abused woman whereas the law students conducted an initial legal interview with the woman as a potential client. sometimes the link between the medical problem and domestic violence would be overt and in others the relationship was covert, thus presenting students with difficult and realistic situations. the law students completed two simulated meetings followed by a focused “curricular intervention” and then completed a further two simulated meetings. perhaps surprisingly, the researchers found no statistically significant improvement in student performance pre and post intervention but did find a range of other potential advantages including unanticipated benefits and the project has led to further collaborative activities. claire sparrow appraises the collaborative project between the university of portsmouth and portsmouth citizens advice bureau (which is a community legal service). the cab was in need of high quality volunteers to participate in its advice surgeries for members of the public whereas the law school wished to enable students to improve their skills, enhance their employability and increase the university’s engagement with the community. the article outlines how the project foreword 7 developed from being an extracurricular volunteer scheme to a fully integrated academic module and explains why this was felt to be necessary. the resulting collaboration appears to be a successful meeting of minds and interests and is a good example of how clinical projects can be developed without the need to build a full live client infrastructure in the law school. kevin kerrigan editor 8 international journal of clinical legal education july 2009 from the field 147 the barriers to the cle practice in russia, in comparison light with the european union and the united kingdom alina kislova, the open university, uk* clinical legal education (cle) is commonly used to refer to a law teaching method that incorporates experiential learning aimed at development of students’ legal knowledge and skills1. at the same time, cle also has social justice mission as it serves the needs of vulnerable members of society2. like any other teaching methods, cle requires a specific environment and factors to be in place to embrace its mission at maximum level and to allow its learners to reach pre-defined learning outcomes. while researching in three western european university legal clinics, and then studying the legal clinics in russia, i have reached the conclusion that cle in russia cannot fully exploit its mission and reach its objectives. while some barriers that prevent russian universities to effectively run cle are obvious, there are also the ones which will be new to a reader. below i discuss the factors that could be considered as barriers preventing cle practice in russia to be effective in driving for its mission and goals, both from educational and social justice perspectives. *alina kislova is a phd student at the open university. 1 european network for clinical legal education statute as registered in october 2013, article 5, item 2 <microsoft word encle statute amendment 2015 registered version.docx> last accessed 01 may 2023. 2 european network for clinical legal education statute as registered in october 2013, article 5, item 2 <microsoft word encle statute amendment 2015 registered version.docx> last accessed 01 may 2023. https://encle.org/upload/lg/about-us/encle_statute_amendment_2015_registered_version.pdf https://encle.org/upload/lg/about-us/encle_statute_amendment_2015_registered_version.pdf from the field 148 authoritarian regime with no human rights and freedoms respected in russia as stated above, apart from teaching and learning objectives, university legal clinics also aim to make a practical contribution to social justice and support democracy proclaimed by many states. they do that through catering pro bono legal service to citizens who otherwise will miss an opportunity for fair and reasonable legal representation3. to allow such social justice-oriented initiatives to be implemented and to run effectively, there needs to be a safe environment supported by the social justice agenda proclaimed and implemented at the state level. keeping that in mind, could an environment and agenda proclaimed and run by the russian state be considered as reliable for an effective run of the pro social justice initiatives i.e., cle university modules? the answer to this question seems to be obvious. limited opportunities for russian universities to secure any form of funding to run a legal clinic most universities in russia are public i.e., they are owned and managed by the state, and hence, the russian universities receive public funds mostly through the russian government, it keeps distribution of the state budget according to the state approved university curriculum. here, it is useful to draw your attention back to the first barrier described above and to think whether the russian authoritarian state that neglects 3 clelia bartoli, legal clinics in europe: for a commitment of higher education in social justice (diritto & questioni pubbliche, 2016) 77. from the field 149 human rights and freedoms has been willing to allocate and approve the state budget for the university teaching method that has the social justice mission. up to the date, according to the human freedom index that is co-published by the cato institute, the fraser institute, and the liberales institut at the friedrich naumann foundation for freedom, russia is ranked at 126 out of 165 countries acknowledged by the ranking. this index is made up based on measurement of personal freedom and economic freedom across the world. personal freedom involves indicators such as the fairness of the laws, personal safety, freedom of movement and assembly, freedom of religion, freedom to run for political office, freedom of the press, freedom of speech and expression, and freedom to pursue same-sex relationships or obtain a divorce4. despite the fact that most of the university legal clinics with their faculty staff members, practicing lawyers and students deliver the legal service pro bono, cle as an educational format cannot function with an absolute lack of budget. the reason is that for an effective functioning clinic, it is required to have at least one administrative staff member working full time who will oversee claims from society and further distributing it among the respective faculty staff members. the structure of legal clinics in the european union presumes a secretary, manager, or an administrator 4 freedom index by country 2023 <freedom index by country 2023 (worldpopulationreview.com)> last accessed 02 july 2023. https://www.cato.org/ https://www.fraserinstitute.org/ https://en.wikipedia.org/wiki/friedrich_naumann_foundation https://en.wikipedia.org/wiki/friedrich_naumann_foundation https://worldpopulationreview.com/country-rankings/countries-with-freedom-of-speech https://worldpopulationreview.com/country-rankings/countries-with-freedom-of-speech https://worldpopulationreview.com/country-rankings/freedom-index-by-country from the field 150 appointed to run the administrative routine5. hiring such an administrator or a manager requires budget allocation equated for an annual salary amount and this is something that the russian universities cannot gain the state budget approval for. the problem of cle funding does not belong to only the russian universities. many universities legal clinics in europe consider the question of funding as the main challenge for running pro bono legal service6. nonetheless, according to the research conducted by clelia bartoli in 2016, more than 60% university legal clinics in the european union who participated in the study receive the funding from universities they operate and around 13 % clinics obtain financial support from local and national governmental levels7. at the same time, in the uk, funding of legal clinic operation comes from university students as during the last decade law schools in the uk have undergone a significant marketisation process and that lead the uk law schools to have the highest tuition fee on the european continent8. the direct financial dependency universities in the uk on their students contribute to the university legal 5 the legal clinics the idea, organization, methodology (2005) the legal clinics foundation warsaw <microsoft word ksiazka eng5.doc (fupp.org.pl)> last accessed 02 july 2023, 59,60,64, 65. 6 clelia bartoli, legal clinics in europe: for a commitment of higher education in social justice (diritto & questioni pubbliche, 2016) 16. 7 clelia bartoli, legal clinics in europe: for a commitment of higher education in social justice (diritto & questioni pubbliche, 2016) 48. 8 emma jones, hugh mcfaul and francine ryan 'clinical legal education in the united kingdom: origins, growth and the technological innovations and challenges of its future' (2017) 4 german journal of legal education 107, 115. https://www.fupp.org.pl/down/legal_clinic.pdf from the field 151 clinics’ growth as experiential, practice-oriented education, increases the level of student satisfaction9. the lack of effective partnership between institutions representing justice system in russia and university legal clinics the cle model presumes to build and maintain various partnerships with institutions of the justice system. this form of partnership and collaboration allows students to see how the justice system works from inside and to observe management of real legal cases from both sides, from justice system institutions and legal representatives10. studying empirically legal clinics in western europe during the last six years, i have seen many successful partnerships and collaborations built between university student clinics and institutions of the justice system. for example, the university of strathclyde mediation clinic run an effective collaboration with the glasgow sheriff court and justice of the peace court, paisley sheriff court and justice of the peace court, while among the wide range of partners of pro bono scheme of university of cardiff were also ones that represent the justice system, for example cardiff employment tribunal. it is useful to notice that the format of partnerships varied from clinic to clinic and hence, while some collaboration was aimed at clients’ referrals for 9 emma jones, hugh mcfaul and francine ryan 'clinical legal education in the united kingdom: origins, growth and the technological innovations and challenges of its future' (2017) 4 german journal of legal education 107, 116. 10 clelia bartoli, legal clinics in europe: for a commitment of higher education in social justice (diritto & questioni pubbliche, 2016) 35. from the field 152 a clinic, other partnerships were focused at providing to clinical students first-hand information on the justice system work processes. the paper of bartoli has shown that 50% of all university legal clinics located around the eu who took part in the study, have been running formal or non-formal partnerships with their state institutions of justice system, while 85 % have official collaborations with institutions of civil society and almost 90% of the responded clinics set partnerships with private legal clinics11. while thinking on potentially effective collaboration between official representatives of the justice system in russia and university legal clinics, it is important to draw attention to some factual data on the nature of the russian justice system. among the statistical data that can characterise the justice system nature is the official figure on the conviction and acquittal rates across the state. to specify, the acquittal rate in russia has been at the level, less than 1 %. as acknowledged by the former prosecutor general of the russian federation (1995-2000) professor jury skuratov, conviction inclination in criminal litigation process in russia is a ‘chronic condition’ of the justice system that is based on an undeniable trust and complete reliance on prosecutor bodies during the litigation process12. to compare, the acquittal rate in the united kingdom was at the level of 10-13 %, over the period of the last years13. 11 clelia bartoli, legal clinics in europe: for a commitment of higher education in social justice (diritto & questioni pubbliche, 2016) 55, 56. 12 hundred to one: why there are so few acquittals in russia (legalacademy.ru, 05 february 2020) <https://lfacademy.ru/sphere/post/sto-k-odnomu-pochemu-v-rossii-tak-malo-opravdatelnyhprigovorov> last accessed 01 may 2023. 13 ministry of justice, national statistics criminal justice statistics quarterly: december 2019 (26 november 2020). https://lfacademy.ru/sphere/post/sto-k-odnomu-pochemu-v-rossii-tak-malo-opravdatelnyh-prigovorov https://lfacademy.ru/sphere/post/sto-k-odnomu-pochemu-v-rossii-tak-malo-opravdatelnyh-prigovorov from the field 153 in the light of the above, it should be said, among legal clinics objectives, there is strengthening of national justice systems and that is in light with the united nations statement on legal clinics that describe them as an effective model aimed to ensure an access to criminal justice14. considering the matters and the figures stated above, the logical question is, whether it is reasonable for the legal clinics in russia to hold out hope for an effective collaboration with institutions representing the russian justice system? furthermore, there is an also a question to pose, whether official representatives of the russian justice system can be considered as reliable agents in passing and communicating legal knowledge and skills to law students? the lack of student time to join university legal clinic and dedicate energy to pro bono work in russia participation and work in legal clinics are an energy and time-consuming process for both academic staff members and students. hence, student motivation to contribute to social justice and student wish to obtain legal skills is not necessarily enough for a student to join the university legal clinic; available time is something also important for any student to have to dedicate energy to pro bono legal modules. the lack of available time from russian students’ perspective can be related to the relatively high number of russian students who are also in full or part time employment. for 14 clelia bartoli, legal clinics in europe: for a commitment of higher education in social justice (diritto & questioni pubbliche, 2016) 71. from the field 154 example, in the year of 2014, 71 % of students in russia were combining university studies with employment15, while the data of the same year in the uk represents the figure of 59 % working students16. although it is also fair to note that the data representing the year 2022 is different, such as the percentage of working students in the uk testifies to a slightly higher figure, i.e., 62% of students in the uk have a parttime job17. turning back to comparison, in russia common among students practice combining studies with work could be related to the unstable socio-economic situation the country had had during the last two decades. this in turn can be one of the reasons why often russian students, who are heavily busy with academic work and job responsibilities, often cannot to find any available slot in their schedule to engage into clinical activities and contribute to pro bono work. on the contrary, a relatively low percentage of european union university students who work while studying allow many of them to dedicate time to various volunteer projects, including work in university legal clinics18. 15 how many russian students combine study with work (the-village.ru, 20 november 2014) <https://www.the-village.ru/business/news/170267-students-work> last accessed 01 may 2023. 16 natalie gil, ‘one in seven students work full-time while they study’ (theguardian.com, 11 august 2014), <https://www.theguardian.com/education/2014/aug/11/students-work-part-timeemployability)>, last accessed 01 may 2023. 17 laura brown, ‘student money survey 2022 – resultsc’, 2022, < student money survey 2022 – results save the student> , last accessed 01 may 2023. 18combining studies and paid jobs, eurostudent, 2018, p. 15 <https://www.eurostudent.eu/download_files/documents/tr_paid_jobs.pdf>, last accessed 01 may 2023. https://www.theguardian.com/education/2014/aug/11/students-work-part-time-employability) https://www.theguardian.com/education/2014/aug/11/students-work-part-time-employability) https://www.savethestudent.org/money/surveys/student-money-survey-2022-results.html#key https://www.savethestudent.org/money/surveys/student-money-survey-2022-results.html#key https://www.eurostudent.eu/download_files/documents/tr_paid_jobs.pdf from the field 155 despite the existing barriers to effectively practice cle in russia, academic staff members at the russian law schools have been doing all possible in their capacity to implement and run the university cle modules. this has been allowing russian law students to benefit from hands-on legal experience within a university setting. clinical legal education (cle) is commonly used to refer to a law teaching method that incorporates experiential learning aimed at development of students’ legal knowledge and skills0f . at the same time, cle also has social justice mission as it serv... authoritarian regime with no human rights and freedoms respected in russia as stated above, apart from teaching and learning objectives, university legal clinics also aim to make a practical contribution to social justice and support democracy proclaimed by many states. they do that through catering pro bono legal service to... limited opportunities for russian universities to secure any form of funding to run a legal clinic most universities in russia are public i.e., they are owned and managed by the state, and hence, the russian universities receive public funds mostly through the russian government, it keeps distribution of the state budget according to the state appr... 295 establishing an international human rights clinic in the new zealand context kris gledhill, faculty of law, university of auckland director, new zealand centre for human rights law, policy and practice introduction whilst clinical programmes are an established and core feature of legal education in the usa, and play a significant role in various other jurisdictions, they are essentially absent from new zealand� the existence of a marked difference is itself a reason to investigate whether experiential learning should have a place in the curriculum of new zealand’s law schools� this is done by examining briefly the growth of clinical legal education in order to illuminate its purpose; and then considering whether structural differences mean that this does not resonate as much in new zealand� it is suggested that there are indeed some reasons for caution, in particular that there is a concern around having a two-tier system of legal provision� but it is also suggested that an international human rights clinic could surmount these reasons for caution; and a prospective design for such a programme is developed and its ability to secure the needs of students and clients is assessed� a. the purposes and extent of clinical legal education 1. the return of clinical legal education in the usa it is worth considering the renaissance of clinical legal education in order to understand its purpose� a brief review of legal education in the usa over the last 150 years1 shows that it was originally entirely experiential through apprenticeship to a practitioner and then became a law school experience of reviewing appellate judgments through the socratic method to discern legal 1 see the account by james moliterno in legal education, experiential education and professional responsibility, (1996) 38 wm and mary law review 71� 296 international journal of clinical legal education issue 19 principles�2 this “library law” process of learning was gradually modified by the recognition of the importance of factors beyond legal principle in the practice of the law, and which might indeed be obscured by reading appellate judgments;3 and of the need for law students to have some practical skills in negotiation, advocacy and legal writing to equip them for their roles�4 it is the expansion of these practical skills courses, together with the building of an infrastructure to support and validate clinical legal education,5 as part of what moliterno has described as “a well-balanced preparation for entry into the legal profession”,6 that has been the feature of the last generation� a second development is relevant, which is the growth of cause-based lawyering, namely by using the law to promote particular goals� at the outset, this was the somewhat amorphous idea of promoting access to counsel by those unable to pay� so, one of the benefits said to accrue from having students involved in more practical matters was that the process could secure access to legal advice for those who could not otherwise afford it (which would benefit students by allowing them to come into contact with the “human side of the administration of justice”)�7 this sowed important seeds for what would happen in the 1960s, when philanthropic money began to “provide grants to law schools to establish legal clinics to serve the poor”�8 hurwitz emphasises that acceptance of funding for this second iteration of the growth of practical education within the law school setting was linked to the social justice mission exemplified by the constitutional cases 2 this is the langdellian method, so-called after the harvard law school professor, christopher langdell, associated with its development: ibid, 72; see also wizner, the law school clinic: legal education in the interests of justice, 70 fordham l rev 1929, (2002) yale faculty scholarship series� paper 1843 (available at http:// digitalcommons�law�yale�edu/fss_papers/1843, last accessed 22 may 2013), at 1930-1931� 3 see in particular the critique by jerome frank, starting in why not a clinical lawyer-school? 1933) 81 u� pa� l� rev� 907, in which he called for practical learning of the art (rather than science) of the law, because many more factors than legal principle were relevant to what happened in practice� 4 moliterno, 38 wm and mary law review 71 at page 75� 5 the infrastructure consists of organisations such as the clinical legal education association (clea) and peerreviewed journals such as the clinical law review; these are replicated transnationally by journals such as this one� 6 moliterno, 38 wm and mary law review 71 at pages 76-77� the need to ensure that american law schools prepare people to enter the legal profession has been a recurrent theme of recent decades: see the maccrate report of 1992 (legal education and professional development: an educational continuum, the report of the task force on law schools and the profession: narrowing the gap, chaired by robert maccrate) and the carnegie foundation report of 2007 (educating lawyers: preparation for the profession of law� william m� sullivan, anne colby, judith welch wegner, lloyd bond, lee s� shulman� san francisco: jossey-bass, 2007, being the report prepared for the carnegie foundation for the advancement of teaching)� 7 frank, (1933) 81 u� pa� l� rev� 907 at 917-920� he noted that whilst medical schools relied to a large extent on free clinics at which eminent physicians gave of their time, the legal aid societies were staffed by poor quality lawyers and able practitioners did not assist: law school-based clinics could remedy this� see also giddings et al, the first wave of modern clinical legal education in the global clinical movement, educating lawyers for social justice, frank s bloch (ed), oup, new york 2011, pp4-5, where the authors credit legal aid clinics within university law schools, starting in 1893 at the university of pennsylvania, as providing a model for further such clinics that developed in the late 1920s� 8 wizner, the law school clinic: legal education in the interests of justice, 70 fordham l rev 1929, 1933, noting the activities of the ford foundation-funded council on legal education for professional responsibility� 297 being taken at that time�9 so, three motivations seem apparent in the support for an experiential component to the law school education� one is ensuring that students learn the skills they will need in their professional careers, which will involve inter-acting with clients and recognising that many things beyond knowing legal principle are required for success in legal practice� a second is assisting in the provision of legal services for indigent people, thereby promoting access to justice, which seems a self-evident good� and a third is cause-based advocacy, reflecting an idealised obligation of lawyers to assist society; this could also benefit law schools by ensuring that they are exciting places to study� these different motivations can be seen in the wide range of legal clinics that now exist in us law schools�10 in the handbook for new clinical teachers (5th ed)11 a taxonomy of clinics by lawyering activity notes that they may involve: (i) litigation: ie formal advocacy, whether before a court (either at trial level or appellate level) of before administrative agencies;12 (ii) dispute resolution: ie negotiation, mediation or arbitration, with the student acting in the role as mediator etc; (iii) judicial: ie acting as a judicial clerk; (iv) advocacy of various other forms – (a) community organising: advocating for community groups; (b) legislative advocacy: ie calls for legislation to be developed; (c) ombudsman or other informal advocacy; (v) transactional: this can have many different forms, depending on the nature of the transaction, which can include regulatory or legislative rule-making as well as individual transactions� (vi) other sorts of work, such as counselling, offering assistance to clients who represent themselves� in terms of the purposes of clinical education, students can learn real-life skills in all these areas, clients without resources can be assisted in most of them, and cause-based legal work can be carried out in particular under categories (i) and (iv), though it could also be that campaigning organisations are the beneficiaries of legal services in the other areas� it is also possible to make a rough estimate of the relative importance of the three purposes 9 deena hurwitz, lawyering for justice and the inevitability of international human rights clinics, (2003) 28 yale j intl law 505 at 523� the central figure was arthur kinnoy, whose article the present crisis in american legal education (1969-1970) 24 rutgers l rev 1 included the call that law schools “reflect the reality of these exciting “new frontiers” of the legal profession”, rather than simply training technicians for corporate and government operations (ibid at page 5)� 10 a 2010-2011 survey by the center for the study of applied legal education, to which 163 of the 194 accredited law schools replied, revealed 1036 clinics that had clients and 1393 “field placement programs”; this grew from the 2007-2008 survey, which had 145 replies from 188 law schools, and identified 809 clinics based in the school and involving direct access to clients and 895 external clinics� see http://www�csale�org/ (last accessed 22 may 2013)� 11 available at http://www�cleaweb�org/new-clinicians (last accessed 22 may 2013)� 12 note that students may in some states be apprentice members of the bar with rights of audience: for example, guideline 15 of the professional guidelines of the virginia state bar (available at http://www�vsb�org/proguidelines/index�php/bar-govt/third-year-student-practice-rule/, last accessed 22 may 2013)� establishing an international human rights clinic in the new zealand context 298 international journal of clinical legal education issue 19 behind clinics� a recent survey of clinics13 notes that the most common forms of clinic – whether in-house or involving external placements – deal with typical lawyering skills (litigation and typical commercial practice areas such as wills and trusts and intellectual property)� cause-based clinics are present, though in smaller numbers� as for the more general cause of access to justice, the suggestion made from this recent survey is that law students are giving some 1,800,000 hours of free legal advice per annum:14 not all of this will involve indigent clients, but much of it may well secure services that would otherwise be beyond the means of clients� 2. clinical legal education in other jurisdictions the us experience is not matched elsewhere in terms of extent, but clinical programmes do exist in other jurisdictions`� in the united kingdom, clinics have been established since the 1970s at kent university, and there are now several programmes after an expansion in interest around the turn of the century�15 these have similar objectives to those in the us, namely the development of skills that would be of benefit in practice but also public service motives (albeit that the “causebased” lawyering does not seem to be an overt feature beyond securing access to justice)�16 similarly, in australia, clinics have been operating since the 1970s, and expanded in the 1990s as several new law schools opened�17 there are now legal clinics at many law schools�18 they tend to be general in nature, though, as campbell and ray describe in specialist clinical education: an australian model,19 some attempt to concentrate on a particular area, noticeably family law� again, the rationale seems to be a mixture of the development of useful skills for students and the need to secure access to legal assistance for those who could not afford to pay privately�20 clinics also exist in many jurisdictions, both of the common law and civil law tradition, in the americas, asia, africa, europe, with similar motivations�21 so the worldwide network, the global alliance for justice education, emphasises the value of clinical education of law students as a way of ensuring that those who chose to enter a legal career are aware of the potential for lawyers to promote access to justice�22 13 the csale survey of 2010-2011, in fn 10 above� 14 csale survey of 2010-2011, fn 10 above, page 20� 15 see richard grimes and hugh brayne, mapping best practice in clinical legal education, uk centre for legal education, october 2004, available at http://www�ukcle�ac�uk/projects/past-projects/clinic/ (last accessed 22 may 2013); and marson et al, the necessity of clinical legal education in university law schools: a uk perspective, (2005) 7 int’l j clinical legal educ 29� 16 grimes and brayne, mapping best practice, pp14-15� 17 jeff giddings, clinical legal education in australia: a historical perspective, (2003) 3 intl j clinical legal educ 7� 18 see the clinical legal education guide (9th ed, for 2009-2010), kingsford legal centre at the university of new south wales, http://www�law�unsw�edu�au/centres/faculty-centres/kingsford-legal-centre/students (last accessed 22 may 2013)� 19 (2003) 3 intl j clinical legal educ 67� 20 so campbell and ray, op cit, note that more specialist clinics were developed at monash university to allow students “to develop ��� skills ��� to a more sophisticated level” and that the some clinics developed in particular response to the reduction in legal aid as part of government policy: (2003) 3 intl j clinical legal educ 67 at 67-68� 21 the global clinical movement, educating lawyers for social justice, frank s bloch (ed), oup, new york 2011, part i� 22 see its mission statement: http://www�gaje�org/about-gaje/mission-statement/ (last accessed 25 may 2013)� 299 3. clinical legal education in new zealand new zealand, however, has not followed its neighbour across the tasman�23 for example, and accepting that the implication from this must be a matter of caution, the membership directory of the australasian law teachers’ association reveals only a handful of new zealand-based members of the clinical legal education group�24 a manual review of law school prospectuses or online lists of course offerings indicates no clinical legal course, save that the university of auckland faculty of law allows students to earn credit from a 75-hour community placement accompanied by a reflective essay25 and to obtain credit towards the compulsory legal research course from a 40-hour community placement�26 in the past, the law school at the victoria university of wellington had offered an internship opportunity for honours and llm students, but this was not available in 2013;27 and similarly the university of canterbury law school has in the past offered a legal internship, but not in 2013�28 on anecdotal evidence, however, it is possible that some work that is clinical in nature is achieved under the guise of individual supervised research projects� moreover, it is also understood that interest about developing a clinical experience, which may lead to programmes being announced imminently� the lack of formal clinical courses thus far does not mean that students do not engage in practical work during their degrees (excluding from this the mooting and similar competitions that do not involve real problems): rather that there is limited such work done for credit� opportunities are provided for students to be involved in legal centres and other community work� for example, the university of otago is involved in the dunedin community law centre (established by students in 1980 and currently having four solicitors and other full time staff supplemented by 120 students and 80 other lawyers)�29 similarly, law students at the university of canterbury may volunteer for the community law canterbury law centre30 and those at the university of waikato may volunteer for the hamilton law centre�31 equally importantly, students have formed their own social justice organisations� students at the university of auckland formed the equal justice project, which is involved in various pro 23 it is not the only jurisdiction to be conservative in the take-up of the model: see lawrence donnelly, irish clinical legal education ab initio: challenges and opportunities, (2008) 13 intl j clinical legal educ 56, describing the nascent programme at the national university of ireland, galway� 24 see http://alta�edu�au/membership-directory�aspx (last accessed 25 may 2013): 5 of 131 members� 25 university of auckland faculty of law undergraduate handbook 2013, pages 57 and 94 (course lawgenrl 447 – community law project)� 26 handbook, pages 76 and 94� 27 see http://www�victoria�ac�nz/law/study/courses/laws-459 (last accessed 25 may 2013)� 28 see http://www�canterbury�ac�nz/courseinfo/getcoursedetails�aspx?course=laws382&year=2013 (last accessed 25 may 2013)� note also that the university of canterbury developed a community engagement course for undergraduate students as part of the response to recent earthquakes: http://www�canterbury�ac�nz/ courseinfo/getcoursedetails�aspx?course=chch101 (last accessed 25 may 2013)� 29 see http://www�dclc�org�nz/modules/content/index�php?id=21 (last accessed 25 may 2013) and the university of otago faculty of law handbook 2013, page 83� 30 university of canterbury school of law undergraduate handbook 2013, page 24; there is also a useful guide for courses students might want to take if they wish to have a career in community law (page 6 of the handbook)� 31 university of waikato te piringa faculty of law undergraduate handbook 2013, page 67; there is a member of staff designated as director of clinical legal education and competitions� establishing an international human rights clinic in the new zealand context 300 international journal of clinical legal education issue 19 bono projects, including working at community law centres�32 a similar body, the wellington community justice project has been established recently by students from victoria university of wellington�33 no doubt these reflect similar motivations of securing wider access to justice whilst learning useful skills� b. concerns as to the extension of clinical legal education in new zealand the mere fact that there has been a growth of experiential learning in other jurisdictions does not mean that it is a good idea for new zealand law schools, even presumptively so� however, it does suggest that there is good reason to investigate and assess the value of adopting experience from overseas to new zealand� the following major questions arise, which may impact on whether a clinical programme should be developed and, if so, the form it should adopt: (i) is the structure of legal education different, such that there is less call for university law schools to be involved in experiential learning? (ii) are there legal or ethical reasons (relating both the interests of students and of clients) why university law schools and their students should not be concerned with the provision of legal advice and services? 1. structure of legal education part of the rationale for clinical legal education, noted above, is the value of experiential learning as part of the move from being a student to being a practitioner� however, that does not mean that a university law school should use clinical courses, because there is a distinct question of where practical skills should be learned� in other words, is it primarily the job of the legal academy or of the profession (including the bar examiners) to ensure that students turn into good practitioners? a number of factors may be relevant to answering the question of the extent to which degreeconferring law schools should be a place for learning practical skills� for example, if a significant number of students undertake a law degree because it gives them an understanding of legal structures so that they are equipped to work in policy-related areas – the concept of a law degree as a good general degree – the introduction of practical skills may be of limited value to that proportion of students� similarly, if the arrangements for admission to the legal profession include a significant period of training before a graduate is admitted to practice before the courts, the legal academy may suggest that its role is to concentrate on teaching doctrine, with more practical skills left to post-degree processes� in this context, it is worth noting that in new zealand law is an undergraduate degree, with those who want to enter practice taking a further professional qualification�34 however, this does not rule out experiential programmes� at most, it means that the construction of the law degree can proceed in the knowledge that there are other places in which a law student could be required to demonstrate practical skills essential for practice� clinical learning would only be excluded from 32 university of auckland faculty of law undergraduate handbook 2013, page 95� 33 http://wellingtoncjp�org/ (last accessed 25 may 2013)� 34 see http://www�nzcle�org�nz/about_us�html (last accessed 25 may 2013) and the various regulations referred to there: there is a requirement for graduates to undertake a professional legal studies course� 301 the law degree if it was shown that it is not possible to teach doctrine other than through typical university-style lectures and seminars� it is worth noting that the different jurisdictions in the uk have undergraduate law degrees, followed by a professional training course; this has also been the case in australia (though some law schools now offer post-graduate law degrees)� this has not prevented clinical legal education developing� of course, it can also be said that the possibility of entry to the profession shortly after obtaining a law degree does not justify giving a priority to practical lawyering skills at the degree stage� after all, those who control admission to the bar can always insist on a wider course of training before admission or take such steps as requiring an apprenticeship period or supervised practice before direct responsibility for client work or solo practice is permitted, thereby ensuring supervised learning of practical skills�35 accordingly, the structure of legal education at both degree and bar examination level is a largely neutral feature in determining the advisability or otherwise of including a clinical programme: the only proviso to this is whether a clinical course can be used to teach students properly, which introduces the ethical component of the question� 2. legal and ethical concerns the propriety of clinical legal education involves the need for pedagogical soundness to satisfy the needs of students� as clients are involved, there must be suitable safeguards to secure professionalism and competence� furthermore, it may also be relevant to examine more systemic matters such as the level of access to justice, which can cover both the needs of those without funds who need fairly typical legal services and also the needs of those who want to use the law to promote a perspective� in short, the legal and ethical concerns reflect the purposes that have been put forward for experiential programmes� (a) the student perspective there are many ways in which tuition can be offered to a student: what works best may depend on the learning style of the particular student and the teaching abilities of the particular academic� as stuckey notes, the experiential approach is one that “integrates theory and practice by combining academic inquiry with actual experience”�36 the essential idea – interactions between students and “real” clients, moderated by the academic – can clearly involve genuine inquiry that furthers the purpose of education and academic study� it happens to do so in the context of a real situation that is developing rather than a past situation that is being described in a case report or text� there is no reason to suggest that this cannot be done in a pedagogically valid manner� there may be practical points, such as whether it is more difficult to organise or requires additional resources: but if those points can be resolved, it becomes a matter for the faculty to ensure academic validity� accordingly, a student’s needs can be satisfied� 35 for example, the english bar’s code of conduct provides in rule 203 that a barrister cannot exercise rights of audience unless he or she has been in practice for three years other than as a sole practitioner (available at http://www�barstandardsboard�org�uk/regulatory-requirements/the-code-of-conduct/the-code-of-conduct/partii-practising-requirements/ (last accessed 25 may 2013)� and in new zealand statutory regulation requires that someone has 3 years’ legal experience in new zealand in the previous 5 years: regulation 12 of the lawyers and conveyancers act (lawyers: practice rules) regulations 2008, sr 2008/188, as amended� 36 roy stuckey, best practices for legal education, clea, columbia, 2007, p121� establishing an international human rights clinic in the new zealand context 302 international journal of clinical legal education issue 19 (b) the client perspective – fair trial and equality rights it goes without saying that an appropriate level of service provision that meets standards of professionalism is necessary� there is, however, a wider perspective to consider, namely the adequacy of access to justice for clients as a group� clinical legal education is linked with a premise that a level of unmet need requires philanthropy through law schools� so, for example, harvard law school’s legal services center describes itself37 as having been established in 1979 “with a commitment to combine education and service in the study of law”� its purposes are set as: “to educate law students for practice and professional service in a fully functioning law office; to harness the energies and efforts of those law students to meet the legal needs of a diverse, urban clientele; to experiment with approaches to increase access to legal services; and to study and understand the public policies and institutions that most directly affect lower income individuals and families�” different readers may find different implications from the emphasised words� a positive reading is that the aim is to allow students to become aware that there are laws which particularly affect these sections of society (housing law, welfare rights etc) and so students should be aware that law is not just a tool used by business (that being the main job market for students from the top law schools)� a less positive reading is that students will benefit from seeing how a law office works and might as do so not at the expense of corporate clients and the law firms they employ but by practicing on “diverse, urban” and poor clients; since such clients do not have corporate law problems, the students will have to learn practical skills in the context of the areas of law relevant to the clients� these implications are on a spectrum involving the interests of the student rather than the client� if the focus is on the interests of the client, it becomes a matter of benefitting from the ‘noblesse oblige’ concept that those who have the good fortune to be entering a lucrative career should donate some of their time and ability to those less fortunate in society�38 but there may be a tension here with the human rights standards for access to justice� in short, a right to a fair trial can be found in international human rights law,39 which may require legal aid for those who cannot afford the costs of a lawyer�40 however, what is essential is that there is adequate provision in a state, not whether there is adequate provision by a state: the obligation of the latter is to intervene when there is a gap in provision� the australian experience is worth reiterating here: part of the growth of clinical legal programmes in the 1990s was that government funding was provided as an 37 see www�law�harvard�edu/academics/clinical/lsc/ (last accessed 25 may 2013)� 38 see the discussion of the benefits of pro bono work by michael kirby, a former justice of the high court of australia, in his forward to keyzer et al (ed), community engagement in contemporary legal education: pro bono, clinical legal education and service-learning, halstead press, canberra 2009� 39 for example, article 14 of the international covenant on civil and political rights, 16 december 1966, 999 unts 171, entered into force 23 march 1976� 40 the express guarantee of legal aid in relation to criminal matters (see article 14(3) iccpr) does not exclude it in civil matters if it is necessary to secure fairness: see, for example, airey v ireland 2 ehrr 305, which decided that article 6 of the european convention on human rights (4 november 1950, 213 unts 222 (or cets no 5), entered into force 3 september 1953), which is similar to article 14 of the iccpr, required legal aid for judicial separation proceedings in light of their complexity� 303 alternative to legal aid in family law cases�41 of course, this may give rise to a significant tension between the law school and the local profession�42 nevertheless, securing adequate provision via legal clinics is both better than having no legal assistance and may be adequate to ensure that trials are fair� fair trial rights, however, are only one part of the rights-based framework� the systematic provision of legal aid in the legal aid and advice act 1949 (uk) followed the report of the committee on legal aid and legal advice (the rushcliffe committee) of 1945�43 its starting point was that “legal aid is not a charity stemming out of private philanthropy but is a right which the state has a duty to foster and protect”�44 so legal aid in the form of paying private lawyers’ fees was part of the series of reforms, including the creation of the national health service, that were designed to be pillars of the more egalitarian society that was to be created out of the destruction of the first part of the twentieth century� in short, socio-economic status would not condition access to necessary professional services, whether from doctors or lawyers� this introduces a new motif: it is not the obligation to ensure a fair trial (which might well be secured through philanthropy, including pro bono service provision by lawyers or law students), but the right to be treated equally� this right is central to the iccpr: article 2 prevents discrimination in relation to other fundamental rights (including that to a fair trial, a part of which is access to legal advice)45 and article 26 goes further and provides a free-standing right to the equal protection of the law, and so not to be discriminated against in relation to any legal right, whether fundamental or otherwise� it is not necessary to reach a final conclusion as to how far this obligation goes: for present purposes, it is sufficient to say that it provides a solid reason for caution about two-tier systems of legal provision� given the state’s obligation to ensure access to legal services irrespective of socio-economic status, this should mean advice from a practicing lawyer, since that it what is enjoyed by those who have the wherewithal to fund such access� (c) the regulation of legal advice there is also a specific issue, at least in the new zealand context, of the lawfulness of students seeing clients; clearly, a university-based clinic would not wish to breach any legal regulations� the lawyers and conveyancers act 2006 (nz) makes it a criminal offence to provide legal services or describe oneself in a manner that suggests one is providing legal services unless one is qualified as 41 campbell and ray, specialist clinical education: an australian model (2003) 3 intl j clinical legal educ 67 at 68: instead of responding to arguments that legal aid be restored from where it had been cut in 1996, the government turned to other options� “one such measure was the discovery by the government of clinical legal education, with its use of students as “free labour” and its connection with universities, which might be expected to contribute to the costs of programs� in its 1998 budget the government allocated funding for new clinical legal education projects “to maximise service delivery to disadvantaged clients and co-operation with universities”�” 42 see giddings et al, the first wave of modern clinical legal education in the global clinical movement, educating lawyers for social justice, frank s bloch (ed), oup, new york 2011, pp10-11� this may be a major concern, given the imperative of finding jobs for graduates and raising funds for the academic mission� 43 cmd 6641� 44 see alex elson, the rushcliffe report, (1946) 13 u chicago l rev 131 at 134: elson called for the supreme court or the attorney-general of the united states to establish a committee to consider the shape of similar proposals in the usa� he noted that if nothing was done and the legal profession remained indifferent, the consequence would be that “injustice and deprivation will be the toll, and our practices will continue to fall far short of our preachments”� (ibid, p144) 45 this is also secured by article 14 of the echr for council of europe members� establishing an international human rights clinic in the new zealand context 304 international journal of clinical legal education issue 19 a lawyer and holds a current practising certificate�46 a somewhat convoluted journey through the definitions in section 6 of the act is necessary to understand what is actually proscribed� first, legal services are “carrying out legal work for any other person”� secondly, there is a definition of legal work: it includes “(a) the reserved areas of work: (b) advice in relation to any legal or equitable rights or obligations: (c) the preparation or review of any document that— (i) creates, or provides evidence of, legal or equitable rights or obligations; …”� thirdly, there is the following definition of the “reserved areas of work” as: “work … (a) in giving legal advice to any other person in relation to the direction or management of— (i) any proceedings that the other person is considering bringing, or has decided to bring, before any new zealand court or new zealand tribunal; or (ii) any proceedings before any new zealand court or new zealand tribunal to which the other person is a party or is likely to become a party; or (b) in appearing as an advocate for any other person before any new zealand court or new zealand tribunal; or (c) in representing any other person involved in any proceedings before any new zealand court or new zealand tribunal; …” accordingly, the “reserved areas” are limited to work in front of new zealand courts and tribunals� as such, any experiential work relating to domestic law has to be done under the supervision of someone with a practicing certificate� however, it is worth noting, as a precursor to the next section, that a clinic operating in international human rights law does not present such practical issues: that is not a reserved area and the other component of what is defined as legal work – referring as it does to “legal or equitable rights or obligations” – does not seem apt to cover rights arising under international legal treaties that are not directly enforceable in the new zealand’s dualist legal system�47 c. the value of an international human rights clinic 1. introduction thus far we have a number of propositions� first, clinical legal education supports various purposes, including worthwhile training for future practitioners and social justice purposes, including extending access to justice and introducing lawyering for causes� as to its application to new zealand, the imperative that clinical education complies with domestic legal and ethical requirements as to the provision of legal services requires supervision by someone with a practicing certificate except in relation to international human rights work� moreover, even if law schools are able to secure this, there remains the concern about whether the existence of clinical education amounts to or supports a two-tier service provision that is problematic from an equal access to justice perspective� 46 lawyers and conveyancers act 2006 (nz), s21; there are exceptions in relation to overseas lawyers who hold themselves out only as able to practice in relation to the overseas jurisdictions (s25) and various situations such as working for a community law centre (which offer various services under contract to the ministry of justice, which can include advocacy, regulated by the legal services act 2011) or appearing when a court permits it (s27)� the practising certificate is issued by the new zealand law society on it being satisfied that fees are up to date and the person remains a “fit and proper person” to be a lawyer: ss39-42� 47 a caveat is that “legal work” is said to “include” the various elements set out and so it might be argued that other areas could be covered, including advice and action in the international legal sphere� 305 this section outlines why an international human rights clinic presents fewer concerns from the unequal access to justice perspective and provides significant opportunities for both studentlearning and meeting unmet needs� 2. the purposes and practices of human rights clinics a recent survey of clinics in the usa48 indicates that there are 30 in-house human rights clinics in usa law schools and 20 that involve field placements� for example, the university of virginia law school clinic49 involves placing students to work on projects with ngos in the usa and abroad, though not undertaking direct work for lay clients� hurwitz, who directs the virginia clinic, has noted of human rights clinics that “students learn many of the same skills in a human rights clinic as they would in traditional clinics – with the added dimension of transnationalism”�50 she provides a useful list of skills that should be acquired in all clinics, including a human rights clinic: research (in domestic and international law), writing skills (legal, factual and advocacy), oral communication, critical thinking, problem solving, integrating theory and practice, professionalism, competence, collaborative working and working effectively under pressure� indeed, hurwitz points out that there may be an additional dimension, because of differences in terms of “the client, the lawyering process and the fora”�51 as such, there may be additional experiences that can be secured from a human rights clinic� it is worth considering these further� (a) the client the client may often be not an individual or typical corporate client but an organisation in civil society:52 indeed, the relevant human rights standard might be viewed as the client in the sense that there is work that might involve seeking to promote access to justice or to give practical effect to equality standards�53 in this way, a human rights clinic is one that can illustrate to law students that there are career opportunities in cause-based lawyering and in functions such as building capacity within a society to operate in a rights-compliant fashion, where legal skills may be particularly useful� if one criticism of a typical law school curriculum is that it might create too narrow impression that the practice of law is all about resolving disputes between two parties, which is the paradigm suggested by an emphasis on reviewing decided cases, then a clinic that focuses on human rights work may be particularly valuable in expanding the horizon� (b) the lawyering process 48 the csale survey for 2010-11: fn 10 supra� 49 http://www�law�virginia�edu/html/academics/practical/ihrclinic�htm (last accessed 25 may 2013)� 50 (2003) 28 yale j intl law 505 at 532� 51 (2003) 28 yale j intl law 505 at 533� 52 hurwitz notes an exception to this in that a clinic with a focus on refugee work will often have real clients: (2003) 28 yale j intl law 505 at 534-6� the csale survey for 2010-11 lists asylum as a separate area, having 22 in-house clinics and 11 field placement clinics� the concern expressed in this article about not allowing clinics to undermine situations when there ought to be proper funding to secure access to a practitioner is one that applies to refugee work, which may involve clients with real vulnerabilities and issues that require experienced advocacy� 53 for example, the relevant clinic at harvard law school involves both work in cambridge and travelling with supervisors “to promote respect for the rule of law” as well as documenting human rights abuses: http://www� law�harvard�edu/programs/hrp/ihrc�html (last accessed 25 may 2013)� establishing an international human rights clinic in the new zealand context 306 international journal of clinical legal education issue 19 hurwitz comments that the lawyering process is different because the subject-matter may be in a state of flux (which often means that work may be on the cutting edge), and it rarely involves the standard legal process of obtaining a judgment and then enforcing it�54 so there are contrasting positives (of securing progress) and negatives (the obstacles to enforcement), which students benefit from understanding by experience� the examples given by hurwitz involve collecting evidence through field-work� other features contribute to this state of flux: in the first place, international human rights standards, arising from treaties, other international standards and jurisprudence, is relatively novel and so is developing as new issues arise for consideration� in addition, new mechanisms are being added: for example, the african court of human rights started its operation in november 2006�55 moreover, more established bodies, such as the european court of human rights and the human rights committee of the united nations, have accepted that human rights treaties are to be interpreted as living instruments, such that there is no strict concept of precedent: there are countless examples of these bodies departing from previous rulings in light of their view that it is time to move the standard forward� (c) the fora as to the fora being different, this is a reference to the mechanisms available within the international human rights framework� using the united nations as an example, its obligation to “achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”56 has led to the development of mechanisms through its human rights council,57 and through the bodies established pursuant to each of the nine main human rights treaties to monitor the implementation of each treaty�58 for example, the international covenant on civil and political rights 196659 provides in articles 28 and following for the creation of the human rights committee�60 these bodies do three types of work� they all monitor progress in the basic obligation to secure compliance with human rights standards by calling on governments to report on the situation in their country� this is reviewed, the process including the questioning of government officials, and comments and recommendations are made� but it is important to note that the process of review involves input by civil society� so, using the example of the human rights committee, it 54 (2003) 28 yale j intl law 505 at 536-538� 55 see http://www�african-court�org/en/index�php/about-the-court/brief-history (last accessed 25 may 2013)� 56 charter of the united nations, 26 june 1945 (available at http://www�un�org/en/documents/charter/, last accessed 25 may 2013)� 57 established in 2006 as a subsidiary organ of the general assembly to replace the commission on human rights: general assembly resolution 60/251� see http://www2�ohchr�org/english/bodies/hrcouncil (last accessed 25 may 2013)� 58 a summary of the treaties, their monitoring bodies, and lists of the additional treaties and standards, is compiled by the office of the high commissioner for human rights at http://www�ohchr�org/en/hrbodies/ pages/treatybodies�aspx (last accessed 25 may 2013)� for a list of the main human rights standards, see http:// www�ohchr�org/en/professionalinterest/pages/universalhumanrightsinstruments�aspx (last accessed 25 may 2013); see also http://www�ohchr�org/en/issues/pages/listofissues�aspx (last accessed 25 may 2013)� 59 16 december 1966, 999 unts 171, entered into force 23 march 1976� 60 a committee of 18 individuals of “recognised competence in the field of human rights”� 307 encourages states to involve members of civil society in the compilation of their reports, and also allows separate “shadow” reports which comment on the government report�61 in addition, the human rights council has a reporting mechanism, the universal periodic review, which judges states against all human rights standards; it also calls for involvement by civil society�62 naturally, successful participation in a shadow-reporting process calls for research-based advocacy, a core legal skill� in addition, un bodies may be able to initiate inquiries, typically into allegations of serious or systemic abuses of human rights� for example, the committee against torture and the committee on the elimination of discrimination against women may carry out such investigations in states that have accepted their jurisdiction to do so; the trigger is the receipt of reliable information�63 similarly, the human rights council has a “special procedures” process, 64 pursuant to which investigations may be carried out into the human rights situation in a particular country or into a theme� naturally, civil society groups can play a role in invoking these processes, which again will benefit from research-based and well-drafted calls for investigation� the special procedures processes may also lend themselves to raising situations affecting individuals, which is akin to the more typical situation of representing a client seeking a solution to a specific problem� similarly, various of the treaty monitoring bodies may consider individual complaints alleging a breach of a particular right� for example, complaints to the human rights committee by individual victims are permitted if the state has adopted the first optional protocol to the iccpr�65 although the procedural rules are relatively relaxed when compared to a typical instance of civil litigation, there are some rules (such as the need to exhaust domestic remedies if they are available and not unreasonably delayed) and persuasive pleading of a case is likely to secure benefits for a client: so, again, core legal skills come into play� it is also worth noting that there might be instances in which third parties can intervene in cases before international tribunals� for example, the european court of human rights allows interventions by third parties, pursuant to article 36 of the european convention on human rights�66 for example, in kiss v hungary,67 which involved a successful challenge to the disenfranchisement of those placed under guardianship� the applicant was represented by a legal officer of the mental disability advocacy center, a transnational ngo that works in particular in various parts of eastern europe�68 in addition, the president of the court allowed a written intervention by the harvard law school project on disability�69 61 see office of the high commissioner for human rights, fact sheet no 15 (rev 1), civil and political rights: the human rights committee, available at http://www�ohchr�org/documents/publications/factsheet15rev�1en� pdf (last accessed 25 may 2013)� 62 see http://www�ohchr�org/en/hrbodies/upr/pages/uprmain�aspx (last accessed 25 may 2013)� 63 article 8 of the optional protocol to the convention on the elimination of discrimination against women 1979, 1249 unts 13, and article 20 of the convention against torture 1984, 1465 unts 85� 64 see details at http://www�ohchr�org/en/hrbodies/sp/pages/welcomepage�aspx http://www�ohchr�org/en/ hrbodies/sp/pages/welcomepage�aspx (last accessed 25 may 2013) 65 16 december 1966, 999 unts 171, entered into force 23 march 1976 66 cets no 005; available at http://conventions�coe�int/ (last accessed 25 may 2013)� 67 appn 38832/06, 20 may 2010� 68 see http://www�mdac�info/ (last accessed 25 may 2013)� 69 http://www�hpod�org/ (last accessed 25 may 2013)� establishing an international human rights clinic in the new zealand context 308 international journal of clinical legal education issue 19 3. new zealand’s engagement with the international human rights regime new zealand is a signatory to most of the core un human rights treaties; as such, it participates in the reporting processes of the various monitoring bodies outlined above (and hence there are opportunities for civil society to engage by providing shadow reports)� in addition, individual complaints are permissible under the iccpr, cedaw and cat� the mechanisms available by virtue of membership of the un, namely those that have their basis in the un charter, are applicable to new zealand: these are the universal period review process of the human rights council and its special procedures� however, it is apparent that there is relatively limited engagement with these mechanisms� so, no individual complaints have been taken under cedaw or cat� there have been individual complaints taken to the human rights committee under the optional protocol to the iccpr, but only 23 decisions have been made�70 of the last 10 of these, which span a decade, one barrister has taken 7 of them� the obvious implication is that there is not an abundance of lawyers who make active use the un complaints mechanisms� in relation to the reporting process, a review of the relevant records reveals that only a handful of shadow reports are typically lodged with the expert body� for example, at the last examination by the human rights committee, in 2010, 5 civil society bodies filed material�71 4. designing a human rights clinic (a) outline with these points in mind, what follows is a suggestion for experiential learning in the new zealand context� a clinical legal education programme can involve placing students in another organisation and/or practitioner, or there can be a cadre of students working within the law school setting: in either form, it is possible that the students will be working with clients, but that is not necessarily so� in the context of international human rights law, the externship opportunity that presents itself is placing students with practitioners or with ngos that might be involved in taking individual complaints to un bodies or in drafting shadow reports� as noted above, the model used by the university of auckland of having students placed somewhere for 75 hours and then required to provide a reflective essay can be used� it can be organised in a systematic fashion, with arrangements made to offer additional capacity for relevant organisations so as to allow them to undertake supplemental projects� as for the model of an in-house clinic, it is possible to put together a group of students who can be involved in the preparation of a shadow report or in taking individual complaints to a un body� 70 as listed on www�bayefsky�com (last accessed 25 may 2013)� 71 98th session of the human rights committee, 8-26 march 2010, http://www2�ohchr�org/english/bodies/hrc/ sessions�htm (last accessed 25 may 2013)� 309 (b) ensuring compliance with ethical standards those designing an international human rights clinic will, of course, wish to ensure that it meets the needs of its students, its clients, and that it complies with any relevant ethical and legal requirements� looking first at the student perspective, it is clear from the account given of international human rights clinics in the usa that these are well-suited to the learning of skills that are useful for would-be lawyers: research and drafting are at the core of the suggested arrangements, including translating the wishes of the client (which may well be phrased in domestic legal terms) into the international human rights framework� if there is involvement in individual complaints, this is akin to pleading a case in any court context; if there is involvement in preparation of shadow reports, this is akin to the many opportunities for lawyers to be involved in advocacy at the policy level, dealing with systemic issues� in addition to these fully-transferable skills, which students can use in other areas of legal work, they will benefit from knowing about the additional fora in which legal skills come in useful, which may expand knowledge as to career options� from the perspective of the student, therefore, experiential education in international human rights law provides the opportunity to develop appropriate skills for a would-be practitioner and also to do so in a context that has some unique features� such a clinic will lend itself to the cause-based lawyering that has played a role in the re-emergence of experiential learning in the usa� from the perspective of the client, whether an individual with a specific problem or an organisation that brings pressure in relation to a particular cause, the need for appropriate professional standards will have to be part of the design for the programme� what of the concerns outlined above of avoiding the governmental obligation to ensure adequate access to justice? it can certainly be suggested that the need for equality of access to justice for individual complainants should extend to making use of international mechanisms� however, whilst the council of europe has a legal aid scheme for complaints being taken to the european court of human rights, the un bodies do not; although individual countries may provide assistance for applications to un bodies, this is not so in new zealand and might well be unusual� accordingly, cases are invariably taken on a pro bono basis if the client is not one who can pay� in any event, as noted above, there is limited use made in new zealand of the individual complaint mechanisms� accordingly, the existence of a clinic that supports such actions is more a matter of building capacity and ensuring that there is some provision made rather than a matter of playing a role in preserving a problematic two-tier structure of legal provision� the proposal is to build capacity to meet an unmet need rather than to be a cheaper, and perhaps less satisfactory, alternative� further, because it relates to matters of international law, the restrictions outlined above on the giving of legal advice without a practicing certificate do not apply� in any event, it should not be a difficult matter to ensure that a clinic is organised in a manner that involves a practitioner to lead the clinic or, if the cost implications of that are problematic, to act as an adjunct to the faculty, sign any submissions as counsel and be on the record as such� indeed, given the limited engagement of the legal profession in the process to date, involving practitioners will educate them as to the possible avenue of complaint for clients: this may be a source of work for the clinic� establishing an international human rights clinic in the new zealand context 310 international journal of clinical legal education issue 19 as for the preparation of shadow reports, this could be done for a client or as an activity of the clinic� if the former, any clients will be a civil society body that is involved in social justice matters and making use of the international human rights mechanisms in this regard� any offering of legal advice by those involved in the clinic will be analogous to being in-house counsel rather than providing externally-regulated legal services� in any event, non-governmental organisations often have lawyers sitting on their governing boards, offering pro bono advice on legal matters relevant to its operations or being involved in campaigning work� placing students within such organisations as part of an experiential learning process should be a way of inculcating the pro bono ethic and allowing the organisations and students to form contacts that may be long-standing� accordingly, it is to be hoped that an international human rights clinic can benefit clients and society by providing access to international remedies that are currently under-used in new zealand, whilst at the same time providing students with the benefits of experiential learning in an area of law that will also serve to widen their horizons as to the value that can be secured by becoming a lawyer� reviewed article: research and impact a systematic review of literature on clinical legal education: a tool for researchers in responding to an explosion of clinical scholarship tribe mkwebu northumbria university, uk abstract identifying where my research, on influential factors to consider in the establishment and sustainability of clinical legal education programmes, fitted within the existing clinical scholarship was by no means an easy task hence the decision to undertake a systematic review of literature. the current explosion of clinical scholarship seems to have been influenced by jerome frank’s call for reform in legal education when in 1933, he asked “why not a clinical-lawyer school?” (frank, 1933). a constant construction of clinical scholarship is critical in understanding many of the facets of clinical legal education so as to sustain clinical programmes and foster new ones. yet a ‘boom’ in literature scares the life out of many a scholar and novice researchers when attempting to find articles that specifically answer research questions. this paper therefore offers guidance in conducting a systematic review of literature on clinical legal education using a grounded theory method. through a fivestage process that involved the formulation of a research question and protocol; the use of systematic methods to identify, select and critically appraise relevant journal articles, this paper outlines each formal methodological step in identifying and selecting journal articles for inclusion in answering the following research question: what factors are influential in the establishment and sustainability of clinical legal education programmes in zimbabwe? the numbers of selected articles were presented in a prisma flow diagram. a final selection of ninety-one journal articles was juxtaposed; integrated and tabulated to produce an overarching explanation which attempts to account for the range of findings (mays et al., 2005a) of the review. through the process of synthesis, i endeavoured to contribute significant added value to my review through an examination of the composite evidence base for similarities of the articles, whether related to the homogeneity or indeed their relatedness of findings. the type of epistemology i favour for my research has also been influenced partly by the methods and findings undertaken in this review (carter and little, 2007). the paper concludes by suggesting that a systematic review method, rather than a narrative review, should be a researcher’s tool in responding to an explosion of clinical scholarship. keywords – boolean logic; boolean operators; database selection; record keeping; clinical legal education; systematic review of literature; narrative review; zimbabwe introduction knowing what information already exists before answering a research question is as important as successfully completing a given research project, hence the need for a literature review of the area under research. different types of literature reviews exist but two are commonly used in research, i.e. narrative reviews and systematic reviews. according to kirkevold (1997), a narrative review summarises different primary studies from which conclusions may be drawn into a holistic interpretation contributed by the reviewer’s own experience, existing theories and models. on the other hand, a systematic review of literature is a type of literature review that is designed to methodologically locate, appraise and synthesise the best available literature that can be used to answer a specific research question (boland et al., 2014). the main purpose for undertaking a systematic review of literature for my research on influential factors to consider in the establishment and sustainability of clinical programmes within law, schools was to investigate the terrain and assess the positive and negative aspects of the zimbabwean context in relation to clinical programmes. why a systematic review of literature? while i accept that narrative reviews have an important role in research because they provide readers with an up to-date knowledge to answer specific topic or theme, they do not describe the methodological approach that would permit the minimisation of the risk of bias in selecting journal articles that answer a research question. the freedom to unsystematically pick and choose papers that support one’s view is clearly a biased approach and using a review that has any kind of bias can lead to inconclusive findings. situating the research project in the literature was by no means an easy task and more often than not, as doctoral researchers, we are more likely to fall into the trap of reading and reading without writing, especially where a lot of material has been written on the area of research. in order that i retrieved literature that would be relevant to the research question and enable my research to make an original contribution to knowledge on clinical legal education, it was important that i knew what sort of information on law clinics already exists. i was intimidated by the amount of literature on clinical legal education. at first, it was not easy identifying where my research fitted within the existing clinical scholarship because of the ‘boom’ in literature. the current explosion of clinical scholarship seems to have been influenced by jerome frank when in 1933, almost 82 years ago, he asked “why not a clinical-lawyer school?” current debates and recent developments in clinical legal education seem to have focused renewed attention upon frank’s influential question. frank’s plea for clinical-lawyer schools has resulted in an extensive literature on clinical legal education. it is this attention that has seen an emergence of keen researchers and clinicians around the globe constantly writing on various clinical legal education issues. as descriptive as they seem to be in their various responses to frank’s question, clinical researchers constantly argue that every law school should have a clinical component within its legal education curriculum, staffed by clinicians with the experience in the practice of law for the purpose of producing lawyers fit for practice. almost 82 years on, the debate by the legal profession, the law faculty, the law students and society rages on. stakeholders are now forced to question with greater intensity whether or not the training of future lawyers prepares them adequately for the future practice of law. as such, i ended up having to deal with a large volume of literature that made keeping up with research evidence in this area of law an impossible feat. it is not unusual for the number of published papers in clinical legal education to run into several thousands. it is, therefore, this explosion in clinical legal education publishing that made me decide to undertake a systematic review of literature in order to keep up with research evidence. systematic review aims the systematic review process i undertook aimed at: 1. establishing whether or not there has been any research on clinical legal education from a zimbabwean context to avoid reinventing the wheel; 2. optimising efficiency by only concentrating on literature relevant to the phenomena being investigated; 3. locating and using specific literature in answering the research question by highlighting influential factors in the establishment and sustainability of clinical programmes; and 4. identifying knowledge gaps in literature on clinical legal education through a rigorous identification, evaluation and a summary of the findings of all relevant individual journal articles on clinical scholarship. systematic review method in order to locate literature relevant in answering my research question, i adopted a search strategy that involved a five-stage iterative process; define; search; select; analyse and present, using a grounded theory method that aids understanding of the place of a systematic review in research (webster and watson, 2002). the first three stages were part of a search strategy that followed a specific method in locating existing studies; in selecting and evaluating articles in such a way that “allows reasonably clear conclusions to be reached about what is and is not known.” (denyer and tranfield, 2009: 671). the analyse and present stages are discussed in a separate paper that describes a process of analysis and synthesis of the selected journal articles by reporting and discussing findings of the review using a grounded theory approach (mkwebu, 2016, in preparation). research question formulation i found out that most structures for formulating questions use the health services research question formulation framework, patient-intervention-comparison-outcome (pico). i considered this framework. i decided against the use of pico for two reasons. first, pico is mostly used in health services research. my research on law clinics is purely social scientific in nature. secondly, there is an alternative structure within the social sciences, i.e. the spice framework (booth, 2006). i chose the spice framework because clinical legal education is a social science subject. the spice mnemonic was a suitable framework because it recognises that evaluations within social science areas of research are typically subjective and require definition of the specific stakeholder view (booth, 2006). the resultant spice framework for the formulation of this study’s research question comprised of the following: · setting – where? zimbabwe, developing country, university of zimbabwe and midlands state university · perspective – for whom? the global clinical movement, the students, the general public, politicians, the legal profession, university of zimbabwe and midlands state university, faculty of law lecturers and law clinicians · intervention – what? emphasis towards the identification of the factors relevant in the establishment and sustainability clinical legal education programmes · comparison – compared with what? the influential factors compared with each other. developed countries’ approaches and experiences with clinical legal education and the utilisation of a lecture/seminar discussion format to the teaching of substantive law · evaluation – with what results? a better understanding of the impact on legal education in zimbabwe of social factors, economic factors, political factors, cultural factors, historical factors and other practical issues in the establishment and sustainability of clinical legal education programmes in order to inform policy and reform my research question was therefore defined in terms of its components according to five common features as set out in the spice framework. reputable data sources and search tools my research on legal education and professional skills considers law in the context of broader social and economic issues; hence it is a socio-legal study. from that perspective, it is interdisciplinary and equally a human and social science study that reflects a multidisciplinary research approach on law, on education and on professional skills. it is this interdisciplinary and multidisciplinary approach in my research that justified the selection of legal and non-legal databases suitable to retrieve clinical scholarship that would be relevant in answering my research question. besides the online legal databases such as hein online, lexisnexis, lawtel and westlaw, other databases outside of law that provide reputable sources proved difficult to find. the non-legal database, web of knowledge (web of science) proved valuable as a premier research platform for information in the social sciences, arts and humanities and provided valuable information on clinical legal education. performing the search the search conducted for this particular review was rigorous, time consuming and extremely episodic. at first, i was tempted to type into the databases, the whole research question as it was. the databases returned no results because they could not make sense of the whole sentence. it was only when i decided to break down my research question into key words and turn them into searchable terms and phrases that i began to retrieve journal articles from the databases. identifying key words clinical legal education is referred to by different terms that essentially mean one and the same thing such as law clinic, clinical programme, student law office, clinical legal education programme, legal aid clinic and clinic. to find out more about that one programme called clinical legal education there had to be at least a further five terms or phrases that i had to use. this was the most challenging aspect of the first stage of the systematic review until i decided to seek help. apart from the regular support and suggestions by my phd supervisor, i benefited immensely from the support of the members of the library team at the university of northumbria’s city campus library who offered guidance on planning the review process. an example of a key phrase i coined for the review following a one to one session with a librarian was clinical legal education. conceptualising the research question the research question was divided into 3 separate concepts: · topic 1 (establishment/development/sustainability of clinical legal education) · topic 2 (management of a law clinic) · topic 3 (pedagogy of a law clinic) synonyms were written down for each topic: · topic 1 – establishment of clinical legal education (start, initiation, formation, inception, creation, construction, foundation); development of clinical legal education (growth, expansion, evolution, progress, spread); sustainability of clinical legal education (defendable, defensible, justifiable, maintainable, supportable, continuity, consistency, persistence, perseverance) · topic 2 – management of a law clinic (administration, managing, running, organising) · topic 3 – pedagogy of a law clinic (direction, indoctrination, guidance, teaching, education, enlightenment, learning, instruction, scholarship, tuition, training, tutoring, study, apprenticeship, coaching) this process allowed me to adopt a search strategy that involved the breaking down of the review question into searchable keywords and search terms; the application of an eligibility criteria and the adoption of an inclusion and exclusion process as follows: the correct format for boolean operators and, or, not was adopted and the three different topics or concepts were ‘and’ed and synonyms were ‘or’ed using the boolean logic. the boolean operators are based on a method of logic developed by george boole, a 19th century english mathematician. if the boolean operator and is entered between two words or phrases, the search will only bring up journal articles that contain both words and phrases. this will narrow the search. for example, i entered into the databases, clinical legal education and sustainability. this search yielded journal articles that contained both the phrase and the word. thus, the more terms i connected with the boolean operator and, the fewer search results i found that were relevant to what i was looking for. the use of the boolean operator and throughout the systematic search was effective because the more words and/or phrases i connected through the boolean operator and, the fewer results i retrieved as all terms were present in every match. i found out that using this strategy reduced the number of results and increased the likelihood of the results being relevant to the factors relevant in setting up and running of clinical legal education programmes. the use of the boolean operator and proved vital in progressing the research on clinical legal education. its use enabled the research to avoid reinventing the wheel. the boolean operator’s effectiveness lies in the results yielded through a search that combined the phrase legal education with the search terms, zimbabwe; university of zimbabwe and midlands state university; all of which were research fieldwork cases for the collection of research data. it was therefore important that i started off by searching for publications addressing legal education and professional skills in zimbabwe as a way of corroborating and defending a knowledge claim, which i made at the commencement of my research, that there was a lack of research on clinical legal education in zimbabwe, particularly on factors relevant in the creation and sustainability of law clinics. where the boolean operator or is entered between two words or phrases, such a search will look for articles that contain either words or phrases. this will broaden the search. for example, i entered clinical legal education or clinical programmes. this search yielded articles that contained either phrases but not necessarily both. thus, the more terms and/or synonyms i connected with the boolean operator or, the more search results i found that were relevant to what i wanted. however, there were occasions during the search that the search terms used would produce too few results. one of the temptations i fell into was to use my identified synonyms as they were in the search engines. doing so gave me too few results and most of them were irrelevant. i then decided to use the boolean operator or, in order to increase the number of search results. this boolean operator was used to link similar or synonymous concepts or ideas. the use of this technique helped in retrieving items which contained either or both phrases. using this technique was quite useful in increasing the number of results retrieved by the search. sometimes, we do come across similar words or phrases that might appear to have the same meaning yet mean one thing in one subject area and mean another in a different area of research. for example, it is common for clinical scholarship to refer to clinical legal education as clinical education that is synonymous with studies that are associated with medicine and/or healthcare services. for a novice researcher, this may prove challenging and does create significant difficulties when one is faced with a huge chunk of papers that have something to do with clinical education in medicine and/or healthcare services but nothing to do with clinical education in the operation of a law clinic. in such instances, the boolean operator not comes in handy. where the boolean operator not is entered between two words or phrases, that search will not bring up articles that contain any words or terms that come after the boolean operator not. this will narrow the search and exclude irrelevant material. in this review, i came across journal articles on clinical legal education in which authors have used the term clinical education to refer to clinical legal education in the context of the law and not clinical education in context of medicine and/or healthcare services. to avoid bringing up results that had anything to do with learning or teaching in medicine and healthcare services, i entered clinical education not clinical education in the healthcare profession. this search yielded journal articles containing only information on clinical legal education and nothing on clinical education in the healthcare profession. the more terms i excluded using the boolean operator not, the fewer relevant search results i found that i needed as the boolean operator not restricted journal articles to studies on clinical education in the operation of law clinics and not on clinical education in the healthcare profession. i used the boolean operator not when i had performed a search, looked at the results and decided that i did not want any items that had anything to do with research on medicine and/or healthcare services. using the boolean operator not reduced the number of results because it excluded items that would have been irrelevant to the aims of the review and only retrieved the ones that would be relevant in answering my research question and achieve the goals of the review. the review also benefited from the advanced boolean search techniques that use quotation marks [“”] as a way of retrieving relevant journal articles. the use of quotation marks [“”] narrowed my search for journal articles. using the phrase clinical legal education on its own, without any quotation marks surrounding the phrase produced so many results. this is because the search treated the words in the phrase as a single word in isolation. i decided to use phrase searching which combined key words surrounded by quotation marks “clinical legal education”. the use of this technique reduced the number of items because the quotation marks indicate a phrase rather than single words and that made the search more effective. this advanced boolean search technique required words to be searched as a phrase in the exact order that i had typed them within the quotation marks. i found this technique extremely useful for searching multiple-word terms such as, for example “legal aid clinic”, “clinical legal education”, “clinical legal education programmes”, “zimbabwe”, “university of zimbabwe”, “midlands state university”. i noticed that using quotation marks in my search gave me different search results than those that were yielded by a search using the boolean operator and, between each word/phrases without quotes. as i became more confident in using the boolean operators to search for literature, i decided to use the operators in a more advanced manner by using the parentheses [()] technique to build my search with a combination of boolean operators. i enclosed search terms and their operators in parentheses to specify the order in which they are interpreted. information within parentheses is read first and then information outside parentheses is read next. for example, when i entered into the databases, (challenges or developing) and clinical legal education, the search engines returned results containing the word challenges or the word developing together with the search term clinical legal education in the fields searched by default. the use of parentheses technique allowed me to combine any of the boolean operators together in a combination. thus, the use of and together with the boolean operator or broadened my search. by using this search string, i found journal articles that had everything to do with clinical legal education as it relates to challenges facing such programmes particularly opposition from different stakeholders who are against the introduction of law clinics within law schools. the addition of a truncation [*] on key words and/or synonyms gave me a few results. for example, the search term establishment, when truncated [establish*] took me back to a point where the word began to change into many words such as establishing; established. i also discovered that most of the databases i used allow truncation searches using the truncation symbol, i.e. asterisk [*]. i discovered that using truncation increased the number of results as the items had to contain the various forms of the key word. systematic review results electronic searches conducted from the 20th january 2014 until the 7th april 2014 identified 8904 journal articles from selected databases as follows: table 1 quantity of included articles database number of hits retained as potentially relevant westlaw 487 103 hein online 5798 518 lawtel 23 7 lexisnexis 140 49 web of knowledge 2456 82 total 8904 759 the journal articles were subjected to a de-duplication process in which duplicates were identified and removed. this stage was followed by a further two-stage process that included, firstly, the screening of titles and abstracts and secondly, the selection of full-text journal articles for inclusion in the review. the de-duplication process left 759 journal articles to be screened for inclusion. these journal articles were subjected to an analysis of their titles and abstracts for relevance in answering the research question. through an examination of the titles and abstracts and a reading of the introductions and conclusions of this batch of papers, 503 journal articles were excluded. this is because their contents did not relate to my research area and their findings were not relevant to the aims and objectives of my review. the screening stage resulted in 256 journal articles being obtained and subjected to further scrutiny in the second stage which involved obtaining full-texts of these journal articles. these articles were subjected to further scrutiny in the selection stage to determine the extent to which they addressed factors that are influential in the establishment and sustainability of clinical legal education programmes within law schools. the aim of this review was not to find articles that discuss the entire broader topic of experiential learning and teaching per se. it is accepted that clinical legal education literature can be viewed through the lens of major differences in theory and approach, this review did not specifically set to address those differences that form distinct poles on various continuums such as, among others, very specific learning objectives or more general learning objectives; classroom student learning or field placements student learning. the review aimed at retrieving articles that have identified those crucial factors we ought to take into consideration when we plan to create clinical programmes or sustain clinical those that are already in existence. out of the potentially relevant batch of 256 papers, 91 papers were selected as relevant. a further batch of 165 articles were excluded because they either addressed the differences in theory and approach of clinical programmes and/or the benefits of clinical legal education without specifically mentioning the crucial factors that we should consider to be relevant in the establishment and sustainability of clinical legal education. the results of the systematic review and identification of the included articles are presented overleaf in the form of a prisma flow diagram: a diagram showing the flow of information through the systematic review stages (courtesy of the prisma-statement.org) from the onset of the search strategy and throughout the search process, i established that the electronic databases i chose could only pick up on the title, subject heading and abstract of the article as the authors had written it. i had no doubt that academic peer-reviewed articles are the best source of data for systematic reviews. nevertheless, i consistently remained vigilant throughout the search process for misleading articles. i had to be on the watch out for authors who may not have given sufficient information for the abstract to be picked up as some abstracts may give a misleading picture of the contents of the article. i therefore decided to widen my search outside the narrow confines of the electronic search to include other methods of searching, such as manual examination of printed journals and looked at other forms of information such as, for example, conference proceedings that i have attended both at local and international levels. there are specific sources in clinical legal education where materials are not published in electronic databases but the material is collated in books which, in response to the needs of clinicians and the research community, is beginning to centralise relevant and up to date information about the global clinical movement. an example of a more centralised clinical resource, i found extremely useful and therefore included in my review, is the book edited by frank s bloch, entitled the global clinical movement: educating lawyers for social justice, published in 2011 by oxford university press. i got to know of this source through contact with one of the experts in the field, an associate dean with the faculty of business and law at the university of northumbria, united kingdom. it can sometimes be worthwhile to contact experts in the field who are familiar with the literature and who might be able to advise reviewers of any unpublished studies of which they are aware. there is no doubt that following up references and hand searching individual journal contents pages can link one up with supplements, news items or indeed clinicians who may have additional information about other research undertaken on clinical legal education. such additional steps can help to avoid bias in the selection of articles. sometimes it is easy to take only the more readily accessible material, which is in the major indexed databases. however, such an approach could potentially defeat the aim of rigour that is associated with a systematic review process. much of the evidence on the factors we ought to consider relevant in the establishment and sustainability of clinical programmes may lie in grey literature and to avoid missing out on information on clinical activity, particularly in zimbabwe, i searched websites of institutions of higher learning in zimbabwe where there was some written evidence of clinical activity within that jurisdiction. however, that information was skeletal and only referred to the existence of legal aid clinics and not the factors i was investigating hence its ultimate exclusion from my review. the consideration of unpublished and grey literature was, nevertheless, essential for minimising the potential effects of publication bias. published studies cannot be assumed to be an accurate representation of the whole evidence base, as studies that show significant, positive results are more likely to be published than those that do not (dickersin 1997). consequently, if systematic reviews are limited to published studies, they risk excluding vital evidence and yielding inaccurate results, which are likely to be biased to positive research outcomes. it was therefore considered essential that active and extensive searching for unpublished and grey literature be undertaken as part of the review process for the identification of influential factors we ought to consider relevant in the establishment and sustainability clinical programmes. summary of the quantitative synthesis the information from the summary tables below illustrates the geographical spread of clinical scholarship reviewed. research on factors that are influential in the establishment and sustainability of clinical legal education programmes is predominantly carried out in the united states rather than in countries in europe, including the united kingdom. there are a significant number of research papers from australia as compared to other jurisdictions but relatively less so in some parts of the world particularly in africa. table 2 geographical spread of articles by country countries clinic studied number of articles per country united states of america 35 england, united kingdom 11 australia 10 china 4 canada 3 ireland 3 nigeria 3 south africa 3 croatia 2 poland 2 botswana 1 chile 1 czech republic 1 fiji 1 germany 1 iraq 1 japan 1 jordan 1 kenya 1 new zealand 1 palestine 1 romania 1 scotland, united kingdom 1 taiwan 1 togo 1 total number of countries (n=25) total number of articles (n=91) as can be seen from the table above, there is therefore a real, strong geographical bias within the global clinical movement itself with the united states topping the table of the location where research on influential factors to consider in the creation and sustainability of clinical programmes is carried out. literature on clinical legal education in africa reveals quite a bit of clinical activity in south africa and nigeria but less so in other parts of the continent. it would be very interesting to find out why there is little or no clinical activity at all elsewhere in africa and those research findings should be documented. any arising issues should be addressed and acted upon by the global clinical movement, if we are to say with certainty, that clinical legal education has a global reach. hopefully, this trend will change in the near future as there now seem to be a lot of clinics emerging from elsewhere around the globe. table 3 geographical spread of articles by region region country in which the clinic is located number of articles per country africa (n=9) nigeria 3 south africa 3 botswana 1 kenya 1 togo 1 americas (n=39) united states of america 35 canada 3 chile 1 australasia and the pacific (n=13) australia 10 fiji 1 japan 1 new zealand 1 europe (n= 22) england, united kingdom 11 ireland 3 croatia 2 poland 2 czech republic 1 germany 1 romania 1 scotland, united kingdom 1 middle east and asia (n=8) china 4 iraq 1 jordan 1 palestine 1 taiwan 1 total number of regions (n=5) total number of countries (n=25) total number of articles (n=91) the results from the table above indicate a very strong regional bias in the publication of studies that address factors we should consider crucial and hence relevant in our efforts to establish and sustain clinical programmes. however, as can be seen from the table, most journal articles come from those countries that have developed economies and stable democracies and less so from regions where the operations of the clinic could be affected by socio-economic and political turmoil. the question therefore is: can we conclude, with certainty, that clinical legal education has a global reach when there is little or no evidence of whether or not the relevant factors identified from clinical scholarship on clinic in developed countries can equally apply to the clinic in those regions where there is little or no evidence of research? it is arguable therefore that until we have studies reporting on the creation and sustainability of clinical programmes from all regions where there is clinical activity there can be no consensus with the assertion that clinical legal education has a global reach. table 4 geographical spread of articles by time of publication decade articles produced africa americas australasia and pacific europe middle east and asia 1950-70 1 1971-90 4 1991-2000 10 3 3 2001-2010 6 15 8 14 3 2011-2014 3 9 2 5 5 as can be seen from the table above, the period from the 1950s up to about the beginning of the millennium, clinical scholarship has been about clinic outside of asia and africa but more so from the united states followed by australia and europe within the decade leading to the millennium. however, this trend seems to be changing with more clinics created globally. there is an interesting trend in the surge of evidence of clinical activity between 2001 and 2010 from all regions including asia and africa. as we all know, this was a period of an economic recession and it could be that as people were losing jobs, law firms closing offices and governments streamlining their spending budgets, the demand for free legal advice became higher than ever before and inevitably led to a surge in the creation of clinical programmes as an alternative avenue for legal services delivery. even though we still have a lot of clinical scholarship addressing factors relevant in the creation and sustainability of clinical programmes from the americas, europe and australasia and the pacific, we now have quite a few articles drawing from the operations of the clinic in asia and africa from 2001 till to date. while the potential impact, on the global clinical movement, of research on the creation and sustainability of clinical programmes in asia and africa is yet to be felt, there seems to be some keenness amongst clinicians from these regions to share their experiences in creating and sustaining clinical programmes from their local bases. however, despite this keenness, it is still difficult to predict exactly when research on clinic in asia and africa will be at par with research from the rest of the world. the table overleaf is illustrative of where most clinical legal education authors are based. out of a batch of ninety-one clinical scholarship papers, forty-four articles are by authors from the united states. this number could be more if we knew where the anonymous author writing about clinic in china is based. a closer look at the table above indicates an interesting trend. journal articles selected for the review are predominantly written by authors based in the united states for the clinic in the united states. not only do the united states based authors write for the clinic in the united states, they also write for the clinic in the americas region except for canada. table 5 geographical spread of articles by where authors are located region for clinic country in which the authors are located number of articles per country africa (n=9) nigeria (authors of the three articles and their co-authors are all based locally) south africa (authors of the two articles are locally based) united states ( one author is based in the u.s but was in south africa for a while; the author of the other article is based in the u.s was briefly in togo as consultant) botswana (author is locally based) kenya (author is locally based) n=3 n=2 n=2 n=1 n=1 americas (n=39) united states (twenty two different authors based in the u.s have published as single authors; six have published either on their own or with others locally based or with others that are based abroad. one author is based in u.s but writes about clinic in chile) canada (main authors in three articles are locally based) n=36 n=3 australasia and the pacific (n=13) australia (main author and a co-author are both based locally; main author and three other co-authors are based locally) england (author is originally from england but have been in fiji for a while as a consultant) new zealand (author is originally from england but now settled in auckland) united states (main author and another co-author are locally based but the other two co-authors are from japan) n=10 n=1 n=1 n=1 europe (n= 22) england (main authors and co-authors in eleven articles are locally based; ireland (three main authors and one co-author in three are locally based) croatia (two authors in two articles are locally based) poland (two authors in two articles are locally based) czech republic (main author and two co-authors are locally based) germany (author is locally based) romania (author is locally based) scotland (author is locally based) n=11 n=3 n=2 n=2 n=1 n=1 n=1 n=1 middle east and asia (n=8) united states (author is based in the u.s. but writes about clinic in china; main author is based in the u.s based and co-author is based in china) anonymous (it is unknown where anonymous is based but writes about clinic in china) china (author is locally based) palestine (author is locally based) united states (author is originally from iraq but is now based in u.s. briefly went back to iraq to create clinic) united states (main author is based in the u.s but went to jordan as a consultant and the co-author is locally based) united states (author is based in the u.s but worked in taiwan and created a clinic there) n=2 n=1 n=1 n=1 n=1 n=1 n=1 what is interesting though is that we do not have evidence of authors outside of the united states writing about the clinic in the united states yet we have quite a number of united states based authors consulting in all other regions but not in europe. europe based authors mostly write about the clinic in their own localities except for one article written by an english author who was briefly tasked with creating a clinic in fiji. there is therefore a lot of consulting by the united states based authors as compared to europe based authors. while there is nothing wrong with having the united states authors topping the table in relation to writing on the creation and sustainability of clinical legal education programmes both within and outside the united states there is a danger that this border transcending dominance may influence how we view research by colleagues in the united states. in the process, we may even attach a higher status to such work at the expense of similar research carried out elsewhere. subsequently, we may end up believing that our research questions can only be answered by referring to such work and nothing else. such an approach leads to citation bias. while we have to applaud colleagues from north america for undertaking research on the clinical movement and in the process riding high on the research treadmill, we need to encourage each other to publish more on the clinic where we are based and value such research. there seems to be a growing interest in clinical legal education topics, particularly around the factors we should consider relevant in the establishment and sustainability of clinical programmes within law schools. a closer look at the table below is testimony to this assertion table 6 geographical spread of articles by publication in academic journals academic journal africa americas australasia and the pacific europe middle east and asia articles per journal ijcle 4 5 4 12 n=25 clinical law review 10 1 1 n=12 griffith law review 2 1 1 n=4 fordham international law journal 1 2 n=3 german law journal 1 2 n=3 berkeley journal of middle eastern and islamic law 2 n=2 legal education review 1 1 n=2 newcastle law review 2 n=2 new york law school law review 2 n=2 osgoode hall law journal 2 n=2 phoenix law review 1 1 n=2 university of michigan journal of law reform 2 n=2 alternative law journal 1 n=1 boston college of law journal 1 n=1 case western reserve law review 1 n=1 cleveland state law review 1 n=1 columbia journal of east european law 1 n=1 commonwealth law bulletin 1 n=1 comparative and international law journal of southern africa 1 n=1 criminal law and justice weekly journals index 1 n=1 denver law journal 1 n=1 drexel law review 1 n=1 georgetown journal of legal ethics 1 n=1 harvard law review 1 n=1 journal of college and university law 1 n=1 journal of law and society 1 n=1 journal of legal education 1 n=1 mcgeorge law review 1 n=1 michigan journal of international law 1 n=1 national taiwan university law review 1 n=1 nebraska law review 1 n=1 pacific mcgeorge global business and development law journal 1 n=1 potchfstroom electronic law journal 1 n=1 scolag 1 n=1 southern california law review 1 n=1 tennessee law review 1 n=1 the law teacher 1 n=1 the new law journal 1 n=1 university of new south wales law journal 1 n=1 university of pennsylvania law review 1 n=1 washington university journal of law and policy 1 n=1 windsor yearbook of access to justice 1 n=1 total n=91 there seems to be a growing interest in clinical legal education topics, particularly around the factors we should consider relevant in the establishment and sustainability of clinical programmes within law schools. a closer look at the table above is testimony to this assertion. as can be seen, a good example is the acceptance of clinical articles from across the globe by the international journal of clinical legal education (ijcle). this is an exciting development, particularly for some of us who have just got onto the research treadmill and are so keen to remain on it for as long as we continue to have the capacity to think intellectually and the ability to type away. as clinical researchers, our reputation and career prospects are largely determined by our publications in academic journals. taking the clinical law review academic journal as an example, the new york university website states the following about the review: the clinical law review is a semi-annual peer-edited journal devoted to issues of lawyering theory and clinical legal education. the review is jointly sponsored by the association of american law schools (aals), the clinical legal education association (clea), and new york university school of law. none of the articles reviewed were from members affiliated with the institution. again there seem to be no bias in the clinical law review’s selection of articles for publication. a further examination of the information from the table above has also revealed an interesting trend. while there is a presumption that law reviews publish more articles from colleagues at their own mother institutions than from academics and practitioners based in other law schools, the twelve articles published in the clinical law review (three by one author and nine by others) have shown that all the ten authors whose work has been published by the review are from outside new york university but all are based in the united states. these highly cited authors include, among others, peter a. joy (1998, 2004, 2006); peggy maisel (2008); richard j. wilson (2002); irene scharf (2006); and phillip schrag (1997). it is not surprising though that a law review with the word ‘clinic’ would attract the attention of such notable clinicians. sometimes it is much easier to associate a journal with the type of articles it publishes by merely looking at the wording of the names it is called by. griffith law review is another good example of a law review that publishes clinical articles, as are the newcastle law review and the phoenix law review. as such we can confidently conclude that clinical journals produce more clinic papers than anywhere else. however, this trend does not necessarily mean that other academic journals do not accept clinic papers. for example, the berkeley journal of middle eastern & islamic law is a digital, student-run publication of the university of california’s law school in berkeley and is not exclusively a clinical legal education journal. yet it does accept papers on this area of law, particularly from the middle east and asia. fordham university’s website states the following: currently in its 35th year of publication, the fordham international law journal is one of the most competitive international law periodicals in the world and, according to a recent study, one of the most frequently cited student-edited legal publications dedicated to the study of international law. the fact that we have these examples of academic journals also publishing material on clinical legal education is indicative of an acceptance of clinical legal education as a discipline and topics on clinical programmes as publication material worthy of a slot in academic journals regardless of ownership and location of the publisher. it is a widely held view that academic journals are representative of quality in publication of journal articles. while it is accepted that every article worthy of publication must be of high quality we know too well that proxy for quality has created two lenses upon which academic journals are viewed, i.e. prestigious journals and less-prestigious journals. there is a presumption that prestigious academic journals publish journal articles of higher quality than the less-prestigious academic journals. likewise, where journals have evidence of just one article published on clinical legal education as shown in the table, the trend could mean that different academic journals have different levels of prestige. their status is measured by their impact factor, a citation-based measure of the perceived importance of a journal in its field. however, the fact that there is evidence of acceptance of clinical scholarship from a wide spectrum of journals as evidenced by the information from the table above, means that as clinician researchers, we have to respond to this wide acceptance by publishing more widely too. this systematic review did not aim solely to identify and merely bring together relevant clinical legal education papers that specifically identified and discussed those factors relevant in the establishment and sustainability of clinical programmes. selected journal articles from the five databases were juxtaposed through a process of synthesis to identify patterns and direction in findings. the selected articles were integrated and tabulated to produce an overarching explanation which attempts to account for the range of findings (mays et al., 2005a). through the process of synthesis i endeavoured to contribute significant added value to my review through an examination of the composite evidence base for similarities in my chosen selection of papers, whether related to the homogeneity of the papers (i.e. how they were carried out, where, when, why and by who) or indeed their relatedness of findings (i.e. what they found in their identification of those crucial factors we consider influential in the creation and sustainability of clinical programmes) as illustrated by the table below: the example below of a categorised article is representative of all of the 91 articles selected for the review. the types of articles selected are qualitative in nature. they use a case study methodology and adopt an observational approach with a descriptive twist to their aims and their findings. table 7 – example of a categorised journal article author date title citation location method aim findings critique anonymous 2007 adopting and adapting: clinical legal education and access to justice in china harvard law review, vol. 120, issue 8, pp.2134-2155. china, asia qualitative; case study methodology; observational approach examines china’s importation and localisation of this one legal institution, the united states of america style legal clinic, with respect to one stated goal of the importation, promoting equal access to justice in china cross-jurisdictional borrowing of institutional models; legal transplantation; indigenous circumstances; spectre of legal imperialism; and the chinese legal systems are factors that are critical for consideration in the establishment and sustainability of a clinical programme descriptive in the process, they contributed to an added value of the case study methodology as a research strategy to be adopted for the completion of my research on clinical legal education, particularly, the identification of the factors that are influential in the establishment and sustainability of clinical programmes. qualitative questions to be addressed in paper 2 of the systematic review having gone through how being systematic and quantitative a systematic review process can be; having created and developed a personal review database; having put all the information about my selected clinical scholarship into the database and having used that information to create some tables, this paper has discussed, among other things, the various stages in which the method of searching and selecting relevant articles was conducted. the process involved dealing with actual numbers. relevant journal articles were counted and summary tables were constructed. as can be seen, the whole process involved a transition from the systematic to the quantitative and from the quantitative to the qualitative making it possible for me to notice patterns and to strategically position myself to map out the gaps in knowledge; identify exactly where those gaps are and suggest ways in which we can address those gaps now or indeed in the future. so based on the method discussed in this paper and the assessment of the selected journal articles relevant in answering the research question on the factors we ought to consider relevant in the establishment and sustainability of clinical legal education programmes, the next paper, mkwebu (2016, in preparation) will describe how a systematic review process was combined with a grounded theory method to form a nexus that identified the following: · what is known (i.e. existing knowledge) · what is unknown (i.e. the knowledge gaps) · how i to contribute to knowledge (i.e. suggestions for filling in the knowledge gaps) conclusion to aid my understanding of various worldviews on clinical legal education in general and on the influential factors in the establishment and sustainability of clinical legal education in particular, a systematic review of literature became a key method for “locating, appraising, synthesising and reporting best evidence” (briner et al., 2009: 24). besides, there is a general agreement that the right method is the one that will answer the research question (holloway and todres, 2003) even though it may not always be so obvious. conducting a systematic review of literature was a mammoth task that required a focused effort to complete. even though i endured months of laborious and tedious construction of the review, it later became apparent that systematic reviews are a wise investment of time when researching on clinical legal education as opposed to the more traditional narrative reviews that have the freedom to unsystematically pick and choose papers that support one’s view; itself a clearly biased approach. references boland, a., cherry, g. and dickson, r. 2014. doing a systematic review: a student’s guide, london: sage publications. booth, a. 2006. clear and present questions: formulating questions for evidence based-practice. library hi tech, 24, 355-368. briner, r., b., denyer, d. and rousseau, d, m. 2009. evidence-based management: concept cleanup time? the academy of management perspective, 23, 19-32. denyer, d. and tranfield, d. 2009. producing a systematic review, london: sage publications. dickersin k. (1997). how important is publication bias? a synthesis of available data. aids educ prev, 9(suppl a),15–21. frank, j. 1933. why not a clinical-lawyer school? university of pennsylvania law review and american law register, 81, 907-923. holloway, i. and todres, l. 2003. the status of method: flexibility, consistency and coherence. qualitative research, 3, 345-357. kirkevold, m. (1997). intergrative nursing research an important strategy to further the development of nursing science and practice. journal of advanced nursing, 25, 977-984. mays, n., pope, c., and popay, j. 2005a. systematically reviewing qualitative and quantitative evidence to inform management and policy making in the health field. journal of health services research and policy, 10, 6-20. webster, j. and watson., r. t. 2002. analysing the past to prepare for the future: writing a literature review. management information systems quarterly, 22, 13-23. excluded clinical education in the healthcare professions development of clinical education in the healthcare professions management of clinic in the healthcare professions pedagogy for clinic in the healthcare professions search limits language english language, geography global (including uk, usa, europe, asia, australia and africa) years all years types peer-reviewed publications, articles and books keywords and string searches legal education and clinical legal education and zimbabwe legal education and zimbabwe law clinic and zimbabwe legal aid clinic and zimbabwe clinical legal education and university of zimbabwe clinical legal education and midlands state university clinical legal education and midlands state university and zimbabwe clinical legal education programmes and management and opposition clinical legal education clinical legal education programmes challenges and developing and clinical legal education programme establishment and sustainability and clinical legal education programme creating and maintaining and clinical legal education programme influential factors and management and clinical legal education programme main search terms legal education in zimbabwe law clinics in zimbabwe legal aid clinic at the university of zimbabwe legal aid clinic at midlands state university development of clinical legal education management of a law clinic pedagogy for law clinic clinical legal education programmes in zimbabwe articles identified through database searching �(n = 8904) screening included eligibility identification additional literature identified through hand searching �(n = 1) articles after duplicates are removed �(n = 759) articles screened �(n = 759) articles excluded �(n = 503) full-text articles assessed for eligibility �(n = 256) full-text articles excluded, with reasons �(n = 165) articles included in the qual-quan synthesis �(n = 91) articles included in the review for the phd research project �(n = 91) � tribe mkwebu is a third year phd candidate and associate lecturer, school of law, university of northumbria, united kingdom 37 interface of law and medicine in clinical legal education: success story of the women’s law clinic in improving the health of women and ensuring women’s access to justice in nigeria* kevwe omoragbon** specialist law clinics now operate both in the developed and developing world� the historical background of these specialist law clinics can be traced to the united states� they also abound in south africa, europe and are fast emerging in several african countries� it is however outside the scope of this paper to describe the wide variety of specialist law clinic models that exist in other countries� at present in nigeria, there are seven nigerian universities with law clinics� these law clinics in enhancing the social justice frontier have developed projects addressing specific problems; making them specialists in service delivery1, but the women’s law clinic, is the only gender specialist law clinic� introduction of clinical legal education to nigeria the objective of legal education in nigeria is stated in the approved minimum academic standards in law for all nigerian universities as: a law graduate must be able to use law as a tool for the resolution of various social, economic and political conflicts in society� the training in law is specifically aimed at producing lawyers * being a paper presented at the seventh international journal of clinical legal education held at murdoch university, perth, western australia, july 9-10, 2009� ** kevwe omoragbon is a clinician in the women’s law clinic, university of ibadan and lecturer in the department of public and international law, faculty of law, university of ibadan, ibadan, nigeria 1 gbenga oke-samuel (2008) ‘clinical legal education in nigeria: development and challenges’ griffith law review vol� 17 no� 1 p�146 49 whose level of education would equip them properly to serve as advisers to governments and their agencies, companies, business firms, associations, individuals and families etc� the activities of governments, companies and individuals are expected to be carried out within the legal framework� therefore, the output or end result of the law program should meet the needs of such agencies and institutions as international organizations, academic teaching and research institutions, federal, state and local government bodies, various industrial, commercial and mercantile associations and various social, family and domestic groups�2 david mcquoid-mason and robin palmer argue that skills training and social justice work are fundamental to clinical legal education�3 clinical legal education is distinguished from traditional legal education because it goes beyond theoretical content of the law to give students the opportunity to acquire the necessary skills for legal practice in addition to inculcating values like involvement in pursuit of social justice and display of professional responsibility�4 prof� yinka omorogbe, the director of the women’s law clinic has also noted that in africa, the provision of legal services and access to justice for the people is the driving force for the establishment of the legal clinics�5 the need to improve legal education was the major focus of the nigerian association of law teachers conferences in 1979 and 1986�6 in 2001 nigeria hosted the first british nigeria law forum in abuja which was sponsored by the british council and the department for international development (dfid)� a follow up legal education forum on the 29th – 31st january 2002 was also facilitated by the british council�7 the result of the lattermost meeting was a general call by stake-holders that legal education be reformed in nigeria and that law faculties, the nigeria law school and the national universities commission should begin to explore opportunities to introduce clinical legal education in their programmes� a few faculties of law which are faculty of law university of ado – ekiti, ekiti state, and nigerian law school enugu campus took up the challenge leading to the british council-facilitated study tour of four clinics in south – africa in april 2002� in june 2003 the open society justice initiatives hosted the 1st all africa clinical legal education colloquium in durban and the law faculties of the following nigerian universities participated in the programme, namely: nigerian law school, enugu campus, university of ado – ekiti and 2 nigerian universities commission (lagos), 1989)� this was repeated in 2004 draft benchmark and minimum academic standards of the national universities commission� the national universities commission is the regulatory body for university education in nigeria� its benchmarks provide a means for the academic community to describe the nature and characteristics of programs in a specific subject; they also represent general expectations about the standards for the award of qualifications at a given level and articulate the attributes and capabilities that those possessing such qualifications should be able to demonstrate� (paragraph 1�12004 nuc benchmark for academic standards) 3 david mcquiod-mason and robin palmer (2007) african law clinicians manual (draft) p�10 4 david mcquiod-mason and robin palmer (2007) african law clinicians manual (draft) p�10 5 yinka omorogbe (2007) welcome address delivered at the inauguration of the women’s law clinic, ibadan, july 18� p�1 6 adeniran olu (2001) ‘benchmark-style minimum academic standards in law: perspectives from nigeria’, paper presented at the legal education forum, abuja, 29 – 31 january 7 ernest ojukwu, (2007) nulai nigeria 2004-2006 activities report, ‘development towards introducing clinical education in nigeria nulai nigeria’ p� 5 50 international journal of clinical legal education issue 17 interface of law and medicine in clinical legal education 51 university of ibadan� nigerian delegates on return from the 1st all – african clinic legal education colloquium came together and formed the network of university legal aid institutions (nulai) nigeria to provide a vehicle to educate for the introduction and development of clinical legal education in nigeria� nulai nigeria in partnership with open society justice initiative, hosted the 1st nigeria clinical legal education colloquium from 12th – 14th february 2004 at abuja� at the end of the colloquium participants supported the introduction of clinical legal education in nigeria and resolved as follows:8 • the introduction of clinical legal education in nigeria should be informed by a coherent philosophy that addresses the needs of the faculties, the students, institutions and processes of governance, and the communities in which all these co-exist� • clinical legal education can reinforce the mechanisms for the delivery of primary legal needs and assistance in nigeria� in this context it is necessary to be clear as to the nature of legal needs and services to which clinical legal education may be relevant� clinic would be supervised by faculty lecturers who are legally qualified as lawyers� • clinical legal education should seek to give students skills in understanding the institutions of governance and equip them to learn as users of and interlocutors with these institutions� for this purpose it is necessary for nigerian law faculties to consider introducing perfective courses into their curriculum� • the introduction of clinical legal education in nigeria should be preceded and supported by the development of a curriculum for clinical legal education and the skills of interested faculty through training and exchange with similar programs elsewhere� this paper deals with the collaboration/partnership that exists between law and medicine in nigeria with particular reference to the women’s law clinic of the university of ibadan, and examines the following issues: (a) the background to the women’s law clinic and an overview of her activities; (b); rationale for the collaboration between the law clinic and medical discipline; (c) the selection of target women’s groups; (d) the objectives of the collaboration; (e) the benefit of the health-legal partnership to students; (f) the challenges encountered� background of the women’s law clinic, university of ibadan the women’s law clinic is a project of the faculty of law, university of ibadan which was set up to totally transform and impact the teaching of law while increasing awareness of the rule of law and human rights in ibadan and its environs� the clinic is an initiative of the consortium for development partnerships (cdp)9 and is under the cdp project on ‘the rule of law and access to justice’� a planning conference was held in april 2005 to deliberate on issues militating against women’s access to justice and the commencement of the women’s law clinic� the clinic was 8 ernest ojukwu, (2007) nulai nigeria 2004-2006 activities report, ‘development towards introducing clinical education in nigeria nulai nigeria’, p� 7 9 the consortium for development partnership (cdp) at inception in 2007 was co-ordinated by the northwestern university, illinois� it is now being co-ordinated by the council for development os social science research in africa (codesria) 52 international journal of clinical legal education issue 17 subsequently inaugurated on the 18th of july, 2009 amidst wide publicity at local and national levels, in print and electronic media� the goals of the women’s law clinic are threefold� first, to train law students in the practice of law utilizing techniques of clinical legal education; secondly, to provide free counselling and legal aid to indigent women in and around ibadan; and thirdly, to undertake research on women’s access to justice and to collect and disseminate information in this and related areas� pruitt has rightly noted that the best lawyers are made not by legal education, but rather through the training they receive; they become the best lawyers by practising law�10 law clinics give the students exposure to the legal problems of their community and ultimately, help to make them more empathetic, responsible and rights-conscious citizens�11 women were specifically chosen as the target in the establishment of the law clinic because the majority of the poor worldwide are women, who remain at the bottom rung of the ladder� this is a recognized fact, and a reason why gender issues feature prominently in development programmes worldwide� women in africa are generally grouped or fall into three categories12: 1� women who don’t know their rights at all� 2� women who know their rights but don’t know where to go to access justice� 3� women, who know their rights, know where to go to access justice but don’t have the means or financial capability to access justice� a planning conference which was set up prior to establishment of the clinic also noted that women face innumerable barriers in society, some of which are ostensibly for their protection, and identified the following as some of the issues affecting women’s access to justice:13 legal barriers the legal barriers include evidentiary requirements in rape, domestic abuse, inheritance and other such matters that make it difficult for women to prove their cases or defend against charges brought against them� it covers evidentiary requirements that favour men and discriminate against women and the customary laws that favour men and discriminate against women� the failure by courts and other adjudicatory tribunals to follow standards set forth by the international community on women’s rights is also a note worthy barrier� 10 lisa pruitt (2002) ‘no black names on the letterhead? efficient discrimination and the south african legal profession’ 545 (23) michigan journal of international law 553 p�599 11 yinka omorogbe (2007) welcome address delivered at the inauguration of the women’s law clinic, ibadan, july 18� p�1 12 elisabeta olarinde (2005) fundamental observations on barriers to women’s access to justice at the planning conference prior to the establishment of the women’s law clinic, ibadan, nigeria, april 24 – 25 p�25 13 consortium for development partnership (cdp) planning conference towards the establishment of the women’s law clinic, ibadan, april 2005 interface of law and medicine in clinical legal education 53 institutional barriers institutional barriers consist of the lack of enabling environments where women can seek redress for violations of their rights including lack of non adversarial fora and too many formalities in the available fora� it also includes the limited access to courts in rural areas and the failure of law enforcement agencies to enforce the rights of women in domestic, rape, or similar matters because of biases or due to a lack of funds or personnel� informational barriers informational barriers touches on the lack of research and documentation of access to justice issues for women, lack of understanding of legal institutions and processes by poor women and the inadequate information for women about their rights� cultural, religious and traditional barriers the cultural, religious and traditional barriers includes the marginalization and feminization of issues affecting women, so that issues affecting access to justice are viewed as women’s issues rather than societal issues� it also covers the stigmatization of women who raise claims, in particular those who confront their husbands or other male members of their community� the activities of the women’s law clinic over the past two years include provision of free legal aid; organizing outreaches and sensitization drives which take place in various communities, markets, religious organizations and hospitals; establishment of mobile clinics at health centres and communities; organizing symposia and training workshops; media programmes; referrals and collaborations with other organizations� the rationale for the collaboration between the law clinic and the medical discipline collaborations between law clinics and health care givers are a very common phenomenon in the united states� dr� barry zuckerman, a renowned paediatrician observed that his skills as a doctor were not enough to keep his patients healthy� he founded the medical-legal partnership in 1993 and then began bringing poverty lawyers into the medical setting to help families� he testifies to the results achieved thus: “we’ve seen the impact that lawyers can have on the health and well-being of the children and families we treat”14� he gave instances of areas addressed which have greatly improved his patients’ health and well being when he rightly pointed out that: “when lawyers secure improved housing conditions or access to food and utilities for patients, families are more likely to get and stay healthy� the expansion recognizes that integrating lawyers into health settings is a medical intervention that works in all clinical and disease populations”�15 14 barry zuckerman (2008) chief of paediatrics at boston medical centre and founder of national centre for medical-legal partnership viewed from site http://www�hdadvocates�org/programpolicy/cmlpc/index�asp accessed on may 28, p�1 15 barry zuckerman (2008) chief of paediatrics at boston medical centre and founder of national centre for medical-legal partnership viewed from site http://www�hdadvocates�org/programpolicy/cmlpc/index�asp accessed on may 28, p�1 in nigeria, this collaboration is relatively new and is being championed presently by the women’s law clinic� the innovation was as a result of our first referral by the university college hospital shortly after the clinic’s inauguration� the client visited the clinic accompanied by her social worker� she was just recovering from a psychological and emotional breakdown which was a consequence of her matrimonial challenges� her doctor noted that she may not completely get over her medical problems if the legal issues were not addressed� our intervention gave her confidence and strength which led to her healing, regaining/ resumingher job, communication with her children which she had been denied and of course her total recovery� this is the only referral received from the health profession in two years as it was observed that due to the high number of patients seeking medical care, doctors are unable to form close knit enough relationships with their patients which will allow them to recognise that their medical condition is as a result of unresolved legal problems� this propelled the clinic to reach out to women at the health centres� the first attempt was an outreach and sensitization drive which involved just speaking to the women, telling them about the existence, activities and areas of operations of the clinic� this yielded minimal results as we noticed that although the women were very enthusiastic, they cooled off on getting home, some of them not wanting to wash their dirty linen in public, and changed their minds from coming to the clinic� the clinic then embarked on another approachthe mobile clinic approach� this involves taking the law clinic to the health centres and receiving clients on the spot� this made the enthusiastic women come out immediately for a case by case analysis of their various legal issues� the aim of the mobile clinic concept is also to enable women who for reasons of distance or lack of means of transportation would have been unable to benefit from the clinic� the clinic on a weekly basis takes mobile file cabinet, files and all other materials used in the clinic, to the health centre� the health centre on their part provides a make shift office space and allocates some time for a brief talk to the women before the commencement of medical consultation� women receive counselling and free legal aid alongside receiving medical attention� due to the high number, women who are expected to wait for their turn to see a doctor have the opportunity of receiving legal services first and vice versa� the most common medical conditions resulting from unresolved legal issues are stress and/or high blood pressure� the clinic follows up case work regularly some of which could take between a few weeks to several months� in some cases this involves direct contact with the client’s doctor in order to monitor improvement in the state of her health� in other cases, the testimony and medical report of the client helps us ascertain progress in her health condition� the aim of the healthlegal collaboration nigeria has a population of about one hundred and thirty million people with a life expectancy of 53�3 and a literacy rate of 55�6%� the infant mortality rate is 89�5 per 1000 births�16 this infant mortality rate is as a result of inadequate medical care mostly due to poverty, ignorance and cultural beliefs� the aim of the health-legal collaboration is to reduce maternal and infant mortality through 16 bruce thom (1999) geographica: the complete illustrated reference to australia and the world, random house property ltd, australia p�341 54 international journal of clinical legal education issue 17 the use of a free legal aid scheme, improve women and children’s health condition by securing adequate maintenance, welfare and child custody� it aims to “improve health outcomes by alleviating legal stressors”�17 the clinic employs a multidisciplinary and holistic approach to provide legal advocacy in a medical setting for clients� many legal related issues can affect the health of low-income families and many of the problems that affect the health of children and families have legal remedies� the collaboration helps patients resolve problems that could adversely affect their health or access to healthcare� to date about 90 clients have applied for legal aid at the law clinic out of which about 20% are as a result of the collaboration with the community health centre�18 a majority of the cases are claims for maintenance and child welfare/custody� others include landlord/tenant relationships, and employee/employer relationship� these claims are mostly by women who have no form of marriage under nigerian law19 but have merely cohabited for over 10 years with the union producing 3-5 children� it is noteworthy that although domestic violence was present in most of these cases, the women never sought any form of legal action in this regard� out of the over 90 cases brought to the clinic, only one client sought relief in respect of domestic violence� 20 lack of women’s empowerment, poverty and ignorance have been identified as reasons for women’s inability to care for their children� many of these children lack medical attention, drop out of school and are malnourished as a result of wilful neglect and abandonment by their fathers� the clinic employs the use of alternative dispute resolution mechanisms in addressing the legal issues� a letter of invitation is sent to the respondent in the first instance as the clinic upholds the principle of fair hearing� the clinic then helps the parties arrive at a concrete resolution on the amount of monthly maintenance to be paid to each child, where it would be paid, when payment is due, custody of the children and what happens when either party defaults� clients receive a range of legal services, including legal advice, referrals, and representation in court� the result of the progress made on client’s case work showed a remarkable improvement in the client’s circumstanceschildren’s health condition improved steadily and they were better taken care of, they went back to school and in most cases the clinic helped both parties reconcile their differences and re-unite� this also gave the children a better environment to grow and improve academically� the selection of target women groups the selection of women at health centres was prompted by the first referral and by the clinic’s experience with other forms of outreach programmes� the health centres are about the only place where you can have a large audience of grass root women who come mainly for child related issues such as immunization, ante-natal and post-natal services� it is also one of the only few places 17 wood (2004), the law and health project: land of lincoln legal assistance foundation viewed from site http:// www�lri�lsc�gov/practice/healthdetail t107r1�asp and accessed on may 28, 2009 18 70% of clients came as a result of media sensitization on both television and radio while 10% are referrals 19 under nigerian law, three forms of marriage are recognizedcustomary marriage in accordance with the various customs that abound in nigeria, islamic marriage, and marriage under the marriage act otherwise known as statutory marriage� 20 the bill on violence against women is yet to be passed into law, therefore domestic violence is still regarded by the police as private family matter for which women are told to go back home to settle their differences 55 interface of law and medicine in clinical legal education where women are seated orderly and are willing to learn from medical talks given by the clinic matron or other nurses on duty� speaking to these women about benefitting from another kind of ‘clinic’ which may jettison the need to seek medical care, not only arouses their enthusiasm but also encourages them to come forward for a free legal aid which will in turn improve their health condition� benefit of the health-legal collaboration to the students and the medical profession it has been said that the best lawyers are made not by legal education, but rather through the training they receive; they become the best lawyers by practising law�21 the benefit of the healthlegal partnership to students cannot be over emphasized� the role of students working in the law clinic is vital to the delivery of legal services to the less advantaged women who benefit from the access to justice scheme while at the same time promoting their medical health status and that of their children� according to david mcquiod mason: the well supervised use of law students will significantly ease limitations under which most of the general programmes in africa work; it is only through student programmes that there is any possibility in the near future for legal services becoming widely available to the poor, among other landmark relevancies�22 the students have not only acquired fundamental lawyering skills but have also mastered skills of effective communication, complex decision-making, problem-solving, ethical behaviour and more specific professional skills�23 they also earn credits for participating in the clinic and are assessed based on their performance� medical personnel learn to listen for non-medical information patients bring them and to better screen for potential legal problems� they also discover that this collaboration which improves health has helped to also achieve their objectives� challenges of the health-legal collaboration ignorance of the law the generality of women who have no form of marriage are ignorant of its consequences�24 the major consequence is that they have no legal remedy except as regards the children of such union� the child rights act protects the best interests of the child and makes it an offence for a parent 21 lisa pruitt (2002) ‘no black names on the letterhead? efficient discrimination and the south african legal profession’ 545 (23) michigan journal of international law 553 p�599 as quoted by ma du plessis (2008) ‘university law clinics meeting particular student and community needs’ griffith law review vol� 17 no� 1 p�126 22 david mcquiod-mason (2000) ‘the delivery of civil legal services in south africa’ 24 fordham international law journal 5111 p�24 23 anne hewitt (2008) ‘producing skilled legal graduates; avoiding the madness in a situational learning methodology’ griffith law review vol. 17 no� 1 p�93 24 there are three types of marriage recognized under nigeria law� the first is marriage under the marriage act which provides for a one man one wife relationship to the exclusion of all others� the second is marriage under customary law which varies from custom to custom and permits a man to marry more than one wife� the third is islamic marriage� 56 international journal of clinical legal education issue 17 or guardian who denies a child the basic necessities of life including food, shelter and education� high level of illiteracy the high level of illiteracy stems from the fact that culturally, women are seen as home makers rather than professionals� the consequence of this illiteracy is a lack of knowledge about their rights as highlighted in the earlier part of this paper� funding law clinics cannot function effectively without funding� lack of funding leads to delay in expediting casework which may sometimes lead to denial of justice for clients� it also stalls staff development and hinders mobility to community health centres� this challenge greatly affected the women’s law clinic in 2008 and 2009� inability of government to domesticate international conventions although the convention for the elimination of all forms of discrimination against women (cedaw) has been ratified by nigeria, it is yet to be domesticated� this can be attributed to various cultural and religious practices, and the complexities involved in domestication�25 unwillingness of the respondent to honour the letter of invitation the women’s law clinic can only successfully handle casework if the respondent voluntarily and willingly honours the letter of invitation sent to him� where he fails to do so, the clinic cannot compel an appearance� this may prevent the client from getting justice on a particular matter� denying the paternity of the child in child welfare issues, where a man denies the paternity of a child in a bid to shy away from his parental responsibility, the clinic’s only option is to refer the parties for a dna test� this may lead to delays and cost implications that may hinder access to justice� lack of infrastructure a legal-health partnership can only function effectively with a well equipped law office located at the community health centre� it therefore poses a challenge where the health centres themselves have insufficient space and facilities for medical work itself before thinking of facilities for a law office� community patronage and support another factor that can pose a challenge to success of the health-legal collaboration is a lack of support and patronage from the community where the law clinic is based� the process of gaining the confidence of the community is not always easy� while law students are usually enthusiastic 25 the procedure for domestication in the 1999 constitution of nigeria provides that, ‘no treaty between the federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the national assembly’� for a treaty to enacted by the national assembly, it must be passed by a majority of the thirty-six houses of assembly in the thirty-six states of nigeria� interface of law and medicine in clinical legal education 57 about the introduction of law clinics at health centres, many observers sometimes react to them with scepticism� if clinics are able to hold out and justify their existence by rendering useful service to their communities, public support will only be a matter of time� capacity building the lack of trained and experienced clinicians is another challenge� this can however be overcome by sending members of the academic staff for training by institutions locally and abroad that have acquired experience and expertise in the delivery of clinical legal education� the opportunity to observe the actual operation of law clinics will go a long way in stimulating the interest of aspiring clinicians� conclusion this paper has examined the linkage and synergy between the legal and medical profession through the instrumentality of clinical legal education� lessons drawn from the health-legal collaboration of the women’s law clinic, university of ibadan can be applicable in law school clinics in any part of the world� this sort of collaborative effort helps to promote interdisciplinary study� it is important that law students be encouraged to participate in community service as students benefit from the experiential learning� it is hoped that other law clinics will take a leaf from the women’s law clinic’s book, improving on our strengths and learning from our weaknesses� 58 international journal of clinical legal education issue 17 editorial an embarrassment of riches elaine hall northumbria university, uk elaine.hall@northumbria.ac.uk this edition is so full of good things and arrives alongside the fantastic bounty of the joint ijcle-cleo-encle conference (follow this link to find out the details of papers and later, to view presentations) that i am going to renege on my promise in the last edition to provide more editorial content. i will simply urge you to feast on · recipes for mapping legal need from richard owen · sustaining data on the student experience of pro bono from paul mckeown · a palate cleansing look at the european clinical literature from rachel dunn · a seven course banquet of streetlaw pedagogy from seán arthurs, melinda cooperman, jessica gallagher, freda grealy, john lunney, rob marrs and richard roe · rich reflections from the development of clinic from stefan kreiger, veronika tomoskova and maxim tomoszek · and just when you thought your appetite was sated, a tempting review of research methods in human rights: a handbook by christopher morris. next edition will see the return of ‘archive dive’ in november – unless the flow of clinical scholarship continues at its current rate and we need to have an extra edition in september. meanwhile, i look forward to meeting those clinicians who are able to come to newcastle for the conference and encourage those of you who can’t be there to follow us on twitter (@ijcle #ijcle17). one final piece of exciting news, the 2018 ijcle conference will take place in hong kong in collaboration with the faculty of law at the chinese university of hong kong – more details soon! 1 mediation and experiential learning how a mediation clinic can inform a law-based curriculum ben waters* abstract the perception that students of law and legal studies should learn about a variety of methods of dispute resolution and not just litigation, has prompted the department of law and criminal justice studies at canterbury christ church university in kent uk to establish a mediation clinic as a focus for undergraduate experiential learning� this article will consider the importance of discipline based research and the integration of clinical legal education within the core curriculum, the benefits offered by a combined live and simulated curricula approach in the context of mediation and the importance of providing a practical input during the academic stage of legal education� introduction there are a variety of ways and settings in which the curriculum can be developed to provide clinical legal education to students at undergraduate level within the uk� the mediation clinic at canterbury christ church university (cccu) in kent is the first such clinic to be based within a uk university and has been established with the intention of providing undergraduate law and legal studies students with the opportunity of learning experientially in a somewhat innovative way� this article explores the importance and value of providing an experiential learning element during the academic stage of legal training in england and wales� the article also provides a view on how discipline based research can help to integrate experiential learning in the core curriculum, and will consider other opportunities which a mediation clinic provides both for the university and the wider community� 90*canterbury chris church university, kent, united kingdom� senior lecturer mediation and experiential learning the move away from the purely theoretical approach to legal study is by no means new in itself, it is an approach which has been advocated and practised for many decades in the united states for instance� the growth of experiential learning within the field of legal education prompted members of the law and legal studies team at cccu to consider the possibility of curriculum development to include experiential elements of study� academic members of the law & legal studies team have become accredited mediators and as a result of having actively led mediations through work generated by the mediation clinic and through mediations performed for other mediation providers, academic staff have themselves developed useful new skills� the integration of experiential learning within the curriculum when designing a curriculum which proposes to utilise clinical experience, it is advisable to undertake preliminary research into the most suitable type of clinic given a whole range of criteria� there is of course a variety of clinical programmes ranging from placements/internships, role play simulation to the ‘live’ clinical experience� the model which has been chosen for the cccu project is the ‘live’ clinical experience supported by simulation� why mediation and what is it? the worthwhile nature of encouraging students of law and legal studies to understand about all kinds of dispute resolution, not just litigation, is reflective of the times we live in and has more relevance now than ever before� since former master of the rolls, lord woolf, produced his report on the civil justice system in 1996 and the subsequent enactment of the access to justice act 1999, a holistic approach to dispute resolution is arguably a fundamental part of a uk lawyer’s education� this view is supported by carrie menkel-meadow who considers that teaching students about dispute resolution, which broadly includes negotiation, problem-solving, and mediation, as well as litigation serves at least four goals: first, a focus on the broad spectrum of actual dispute resolution devices provides a more accurate view of how the legal system operates� secondly, dispute resolution study provides a valuable way to incorporate experiential learning in legal education� thirdly, the concrete lawyering skills that can be taught with a focus on dispute resolution are central to the performance of any lawyering work� fourthly, using the dispute resolution framework for teaching about what lawyers do, facilitates a particular normative agenda as well� a fresh approach failure to educate the next generation of lawyers about the holistic nature of dispute resolution is at best a serious omission and at worst irresponsible� students should be aware that there is often more than one way to resolve a dispute; litigation is not always the answer or indeed need not be the process method of choice� with the arrival of the previously mentioned legislation and the introduction of the civil procedure rules, lawyers who practise in england and wales are required to consider alternatives to litigation where they can� informed by teaching and practise, and so as to assist the reader in gaining a basic understanding about mediation, the author has chosen to adopt the following definition of mediation: international journal of clinical legal education autumn 2011 91 “mediation is a voluntary process conducted confidentially whereby the parties to a dispute are empowered to resolve their differences in a structured yet informal environment with the assistance of an impartial facilitator�” the aims of the university’s mediation clinic are therefore threefold� the first aim is to provide mediation services to the local and wider community� this we have started to do and have so far, in the space of nearly two years, undertaken nearly twenty mediations� the second aim is to enhance teaching across curricula within the university; this is where the clinical element links in� thirdly, the clinic aims to provide a focus for research� mediation and the live clinical experience the aims of ‘live’ clinics according to the higher education academy uk centre for legal education (ukcle) the broad aims of ‘live’ clinics are: • to enhance the students’ learning experience and understanding of the substantive law, legal process, ethics and the role of law in society • to produce students that can take the learning experience offered by live client clinics and reflect upon how and why cases were progressed and how this fits into the overall context of their legal studies • to empower the students to become pro-active in the process of learning • to provide formative assessment methods which are in themselves a strategic and integral part of the learning experience a mediation clinic provides an example of how experiential learning can be implemented in an undergraduate curriculum� the research undertaken by those responsible for setting up and establishing the clinic at cccu, both with regard to the discipline itself and the possible pedagogical opportunities available, has reinforced views about the importance of understanding conflict resolution methods in a variety of different settings from the community forum to those conflicts within the international arena� the mediation clinic at cccu therefore places an emphasis on encouraging and enabling students of legal studies and law as a core part of the practical level of their undergraduate study, to understand how conflict can be resolved through a recognised and effective alternative dispute resolution process� early research into the project revealed that in other common law jurisdictions, notably, the united states, canada and australia, mediation has been taught at university level for many years and in some of the universities in those countries students are given a clinical experience based around the study of dispute resolution and particularly mediation� reflective practice students can also develop an understanding of how a mediation service provider operates and we are involving students in the process as assistant mediators, under the guidance and supervision mediation and experiential learning 92 of experienced members of academic staff, and by being involved in office administration� the assistant positions offered to students are observational in nature enabling them to learn through reflection� part of the early discipline based research acknowledged that reflective practice is a key component for successful experiential learning and that mediation lends itself perfectly to the reflective practice paradigm, being an active process of exploration and discovery which often leads to very unexpected outcomes� learning in this context may, as mezirow has observed [enable the learner to make] a new or revised interpretation of the meaning of an experience, which guides subsequent understanding, appreciation, and action� by experiencing the process of mediation at first hand, students should be able to gain a better understanding and appreciation of a different approach to conflict resolution and undertake comparative studies with other recognised methods� r�a�b� bush outlines the following benefits that “live” observation has over simulation in the context of studying methods of alternative dispute resolution (adr): • the observations [balance] the more abstract study of classroom work and reading • they provided a sense of immediacy and relevance that intensifies students’ interest in adr • the opportunity to sit back and watch critically, rather than directly involved in an exercise with classmates allows students a greater chance to be analytical and critical about the operation, and • students [are] given direct personal contact with the adr field, contact which helps to overcome the kinds of biases towards adr that, it has often been noted, exists among legal professionals� it is not only the students of course who benefit from the experiential nature of this learning approach� the supervisory capabilities of academic staff has been enhanced through their active involvement with the mediation clinic� the work of david kolb, who introduced his now well known four stage learning cycle, is helpful in understanding the value of experiential learning in the context of the study of mediation� kolb emphasises the affective side of learning because in his view, which is a view shared by other educational psychologists, people learn from experience through a direct encounter with life that involves total immersion with all its attendant sensations and feelings� the affective dimension to learning includes emotions and also a deeper, non-rational understanding of the situation� this further embeds the notion that the mediation process, which often involves parties participating in a process of emotional release, fits the reflective practice model of learning quite appropriately� clinical legal education in the uk is still a relatively unadvanced concept� there are notable exceptions; the clinics at northumbria, warwick and kent universities are nationally if not internationally renowned� it has been mentioned that there are a number of different types of clinical experience� for james stark, the emphasis on reflection and critique should be a common factor for all types of clinical experience while the teaching control and the learning environment may differ�the mediation clinic at cccu aims to design and develop new and innovative curricula using the work of the clinic as a focus� as already mentioned, observation experience of “live” mediations is being offered to the students� transferable skills through involvement with the clinic, both by observing “live” mediations and by participating in 93 international journal of clinical legal education autumn 2011 simulated role play exercises, students are not only able to appreciate and understand the ethical dimensions of mediation, but will improve their personal and interpersonal skills, autonomy, independence of thought and decision making skills� they are able to do this by reflecting on their experience� indeed reflection arguably works best with engagement and proactivity on the part of the learner, a concept which is supported by the use of the mediation process as a focus for students’ knowledge development and the development of their transferable skills� the skills which students gain from their “live clinical” experience provide much scope for reflection and will ultimately enhance their employability� this is currently a key issue for graduates from higher education in the uk� the importance of an experiential base for a degree is therefore increasingly acknowledged as important in building employment-related skills� cccu has a rich tradition in providing “vocational” education for those intending to enter public sector employment, from social work and healthcare provision to policing� the work undertaken by the mediation clinic and the exposure which students will have to it, will continue this tradition� with the development of a qualifying law degree which has been offered since september 2008, the clinic forms a cornerstone of one of the university’s driving principles, that being the concept of theory meeting practice and the reinforcement of theory through practice� whilst the mediation clinic is currently situated within the department for law & criminal justice studies, the nature of mediation and conflict resolution as a curriculum taught subject area, lends the clinic to crossfaculty participation; involvement with other departments should therefore be encouraged� the encouragement and promotion of research to enhance the research profile of academic departments, clinics are seen as increasingly important at the academic stage of legal academic study within the uk� the mediation clinic is the first of its kind in a uk law school and the study of alternative dispute resolution will produce a researchbased curriculum� it is providing academic staff with data which will form the foundation of research projects, to be entered into in partnership with other departments within the university, or externally with private sector, public sector and voluntary sector providers� it is also hoped that the clinic will provide a knowledge sharing forum which amongst other things will assist in spreading the message about the appreciable benefits of alternative dispute resolution and particularly mediation� conclusion the establishment of the mediation clinic at cccu clearly demonstrates the benefits of discipline based and research informed teaching� the initial research into the type of the model through visiting other institutions and by talking to experienced academics involved in clinical practice has been invaluable to the success of the initial phases of the project� the pedagogical opportunities for curriculum design and development through studying law based undergraduate subjects not only at the micro level, but also at the macro/practical level through experiential learning, helps to make an important link between theory and practice using conflict resolution and particularly mediation and the work of the clinic as the focus� in addition the combination of the live clinical experience with simulation arguably helps to produce a rather less prosaic undergraduate law curriculum� mediation and experiential learning 94 reference list brayne h, duncan n, & grimes r, (1998), clinical legal education, active learning in your law school, blackstone press limited� bush r�a�b� using process observation to teach alternative dispute resolution: alternatives to simulation (1997) 37 journal of legal education 46� columbia university law school at http://www�law�columbia�edu deutsch, m, coleman, p & marcus, e, (2006), the handbook of conflict resolution, theory & practice, jossey-bass (san francisco)� fordham law school at http://www�law�fordham�edu frank j, ‘why not a clinical lawyer school’ (1933) 81 university of pennsylvania law review and law register 907� fry h, ketteridge s, & marshall s, (2006), a handbook for teaching & learning in higher education (2nd edition), routledge falmer (abingdon)� higher education academy at http://www�ukcle�ac�uk jenkins a & healey m, (2005), institutional strategies to link teaching and research, the higher education academy� john jay college of criminal justice (city university new york ) at http://www�jjay�cuny�edu kolb, d, (1984), experiential learning, prentice hall� marton f, and saljo r, ‘on qualitative differences in learning’ (1976) 46 british journal of educational psychology 115, 117� menkel-meadow c, to solve problems not to make them: integrating adr in the law school curriculum (1993) 46 (5) smu law review, 1995, 2003� mezirow j, (1990), fostering critical reflection in adulthood, a guide to transformative and emancipatory learning, jossey-bass (san francisco)� moffitt m, & bordone r, (eds), (2005), the handbook of dispute resolution, jossey bass (san francisco)� the program on negotiation at harvard law school at http://www�pon�harvard�edu stark j, preliminary reflections on establishing a mediation clinic (1996) 2 (2) clinical law review 457� stark j, developing the links between clinical legal education and alternative dispute resolution at http:// www�griffith�edu�au/school/law/assets/cle stitt a, j, mediation: a practical guide (2004) cavendish (london)� tillett g, (1991), resolving conflict, a practical approach, oxford university press (melbourne)� wizner s, the law school clinic: legal education in the interests of justice, 70 fordham law rev� 1929 2001–2002� 95 international journal of clinical legal education autumn 2011 593 legal education and challenges of contemporary developments in nigeria dr bagoni a. bukar, ll.b (hons.), b.l, ll.m, ph.d email address: bagonibukar@gmail.com; babagonibukar@yahoo.co.uk the author is a reader in law and the head, department of private law, university of maiduguri. he is also part of the law firm of bukar & co. a law firm that engages in general practice with bias in corporate law/international commercial arbitration.  dr bukar  has 25 years experience of teaching and practicing law. he has over 25 published articles in both local and international journals and has also attended and presented papers at international conferences. abstract the development of any society is anchored on the existence of enabling environment for imparting legal education. technological breakthrough and globalization among other things has made the provision of sound legal education to would-be lawyers and continuing legal education for lawyers, judges and academics a sine qua non at national and international levels. hitherto, legal education was and unfortunately is still to a large extent restricted to the domain of domestic law sufficient enough to give a student broad general knowledge and exposure to other disciplines in the process of acquiring legal education. such system of legal education which exists to date hardly if at all expose the student or the lawyer to challenges and the developments in other jurisdictions or in the emerging fields of law. a lawyer or a judge is a mirror of the system of legal education that produced him. sadly, the laws regulating legal education, apart from being obsolete are in some cases conflicting due to the roles assigned to different and disparate organs. 594 international journal of clinical legal education issue 20 i. introduction the history of the western form of legal education in nigeria started with the report of the unsworth committee on higher education which recommended inter alia the following: 1. nigeria should establish its own system of legal education 2.a law school, to be known as the nigerian law school, be established in lagos to provide vocational training to legal practitioners as barristers and solicitors; 3. the qualification for admission to legal practice in nigeria should be a degree in law of any university whose course is recognised by the council of legal education (cle), and the vocational course as prescribed by the council; 4. a council of legal education should be established1. these and other recommendations of the committee culminated in the establishment of council of legal education and the nigerian law school for the purposes of providing vocational training of legal practitioners as barristers and solicitors.2 the academic component of legal education is undertaken by accredited faculties of law whose course of legal studies is approved by the council as sufficient qualification for admission into the nigerian law school. the national universities commission (nuc) on the other hand is charged with the responsibility of advising the federal and state governments on all aspects of university education, in particular, it sets the minimum academic standards for all degree and postgraduate programmes including those of law3, while the general control of the conduct of matriculation examinations and determining the matriculation requirements for entry into degree progmmes in law and other disciples is undertaken by the joint admissions and matriculation board4 (jamb). over the years, the council of legal education act and national universities commission act had respectively undergone amendments;5 unfortunately, these amendments have done very little in the area of teaching pedagogy and course contents both at the academic and vocational levels. for instance, not much was done towards the introduction of courses in emerging fields of law and adoption of new teaching methods especially those engendered by information and communications technologies (ict). it is therefore not surprising to find the same course content 1 see the report of the committee on the future of the nigerian legal profession.(lagos, federal government press,1959) cited from problem of legal education by ho. justice m. o. onalaja http://www.alimiandco.com/ publications. 2 see section 1(2) of the legal education act 1962 now repealed by the legal education (consolidation, etc.) act, cap.l10 laws of the federation of nigeria,(lfn) 3 section 4 national universities commission act, cap.n81 (lfn)2004 4 see section 5(1)(a) of the joint admissions and matriculation board act, cap. j1 (lfn).note : only universities offer law degrees. other degree awarding institutions other than universities cannot run degree programmes in law. 5 see the legal education act no.12 of 1962 ; the legal education( pensions) act no.34 of 1965;the legal education (amendment)act, no.62 of 1970;the legal education (amendment) act, no.37 of 1973; the legal education (amendment) no.37of 1970 (all repealed).note that the amendments were not substantial enough to radically chance the course of legal education; also see the national universities commission(amendment) act, no.10 of 1993; cap.c 23 laws of the federation of nigeria,2004 . 595 being taught for decades without being revised and law teachers adopting the ‘nail and hammer’ approach to the teaching of law. however, with the introduction of clinical legal education in some universities, the foundation for purposeful and practically oriented system of legal education hitherto not contemplated by the national universities commission and perhaps the council of legal education may well be underway. the aim of this article is to examine the respective roles of these various organs vested with the responsibilities of shaping the course of academic and vocational legal education in nigeria. ii. the role of the national universities commission in legal education the national universities commission is saddled with the responsibilities of among other things setting benchmark minimum academic standards and accrediting degree and other academic programmes in nigerian universities. in pursuance of its mandate under sections 4 and 18 of national universities commission act and education (national minimum standards and establishment of institutions) act6 and in consultation with universities, the national universities commission revised the minimum academic standards (mas) 1989 by updating and replacing it with the benchmark minimum academic standards (bmas) for all courses including law.7 one of the reasons for the review of the minimum academic standards in the words of the commission is to meet up with “the impact of information and communications technologies on teaching and learning and the competitiveness engendered by globalization…”8 one of the functions of the academic standards department of the national universities commission is to among other things periodically review courses and curriculum of approved programmes in nigerian universities. a cursory look at the courses in the commission’s bmas and its predecessor, the minimum academic standard (mas) 1989, reveals that the course content for both optional and compulsory law courses to a great extent remain the same. apart from the traditional or core subjects which are compulsory for all undergraduates under the minimum academic and benchmark minimum academic standards, namely constitutional law, law of contract, criminal law, company law, commercial law, law of equity and trust, law of evidence, jurisprudence, land law, nigerian legal system, law of torts and a compulsory final year project, it does appear that no effort is being made by the national universities commission and universities to revise the law curriculum to meet the current needs of the student in a rapidly changing society. if the aim of the periodic curriculum review as stated in the bench mark academic standards document is to bring the law programme in line with the changing society9, then this is perhaps the most appropriate time to make subjects such as international human rights law, international environmental law, cyber and internet law, law on internal displacement, genocide and war crimes, e-commerce and a host of others compulsory. if the student is not exposed to these areas of law 6 cap. n81 and e3 laws of the federation of nigeria, (lfn),2004 7 see national universities commission, benchmark minimum academic standards(nuc bmas) for undergraduate programmes(law) in nigerian universities, april, 2007, p.1 http://www.nuc.edu.ng/nucsite/file/ dass/bmas%20law.pdf visited 13/05/13. 8 ibid. 9 see nuc bmas op.cit para.1.5.5.2 at p.9 which requires curriculum review after every five years. this therefore means the bmas 2007 is due for review. legal education and challenges of contemporary developments in nigeria 596 international journal of clinical legal education issue 20 at the undergraduate level, then it may be too late in the day to educate him on same through continuing legal education or through other ad hoc means. consequently, the student may be handicapped in diagnosing legal issues or in rendering informed legal opinion or even to take appropriate legal action when confronted with challenges in those areas. he therefore becomes dependent on international organizations, such as amnesty international, human rights watch, earth’s rights international and foreign governments for reports of violations taking place in his backyard. if the commission cannot add new courses in emerging fields of law to meet up with the global trends, then the course content should at least be reviewed to include for example some aspects in e-commerce which can conveniently be subsumed under commercial law, contract and company law, while genocide and war crimes can be taught as part of international criminal law. in addition, a fair knowledge of basic aspects of other legal systems of the world and jurisprudence of some commonwealth countries should be introduced in order to assist in the development of intellectual capacities of students and to further make them understand and better appreciate their immediate legal environments as well as those of others. this could be one of the reasons why the bmas document requires library holdings of faculties of law of nigerian universities to include standard precedent books, such as encyclopedia of forms and precedents, black’s law dictionary and law reports from english, american, australian, indian, kenyan and canadian jurisdictions. such law reports include australian commonwealth law reports, canadian dominion law report, indian law reports and the east african law reports. the inclusion of these law reports and standard works in the field of law from these countries is to enable the student have some idea of the working of the law in other jurisdictions with whom we share some similarities and/ or differences. in this age where action of nations is increasingly judged by international legal standards, there is no reason for limiting the law student’s horizon to domestic law alone, hence, the need to update and expand the law curriculum to include jurisprudence of other nations and international law. the faculties of law in conjunction with their respective universities must take the lead in reshaping legal education curricula by putting forward proposals to the appropriate organs for reform. iii. council of legal education the mandate of the national universities commission include among others giving approval for the establishment of faculties, academic units etc.10 in nigerian universities. the council of legal education on the other hand has the responsibility for the legal education of persons seeking to become members of the legal profession.11 to this end, the council is empowered to issue a qualifying certificate to a person which when issued, signifies the successful completion of a course of practical training in the nigerian law school and is eligible for call to the nigerian bar. such persons seeking to become members of the legal profession must however, among other requirements, possess a university law degree whose course for the degree is recognized by the council. it should be noted that the accreditation of a law degree progamme by the nuc does not automatically translate into its accreditation or recognition by the council of legal 10 see s4(1)(b)(iii) cap.n81 op.cit 11 section 1 (2) of the legal education consolidation etc.) act. op.cit 597 education.12 this probably explains why there is a clamour for the amendment of the council of legal education act, so as to give the council of legal education some measure of control over academic programmes (law) in nigerian universities. as it is, there is no legal obligation on the part of the commission to consult the council in approving the establishment of any faculty of law. although such a faculty when established must also satisfy the council’s minimum requirement in terms of curriculum and facilities before it is accredited. thus, while the commission has the power to approve establishment of new faculties and accreditation of existence ones based on its parameters, the council equally has the power to deny accreditation of the same programme approved by the commission based on its own parameters too. it may be observed that the national universities commission has on its board a person representing law as a discipline,13 there is however no corresponding provision for representation of the national universities commission on the council of legal education.14 consequently, there is bound to be conflict in the approach of these two organs to matters relating approval of programmes. the absence of representation of the national universities commission on the council is indeed a serious flaw. the national universities commission being a major stakeholder in legal education is robbed of the advantage of contributing to matters that may have bearing to its area of competence at the council’s regular meetings. there is the need for the council of legal education to involve the national universities commission in for instance, its accreditation visits in the same way the commission does when constituting accreditation exercises for law programmes in nigerian universities.15 the roles of the commission and council in legal education is not mutually exclusive, though they are separate and independent bodies; yet, both are dependent on each other. therefore, these two bodies and indeed the nigerian bar association have the responsibility of co-operating with one another so as to meet up with the challenges facing legal education. the council of legal education, the national universities commission and indeed all other stakeholders in the business of legal education must therefore be on the same page for this purpose. iv. the role of the nigerian bar association in legal education the nigerian bar association (nba) is the umbrella body for all lawyers in nigeria. unlike the american bar association, the nigerian bar association has no direct statutory role in the scheme of legal education. however, all members of the council of legal education are legal practitioners who invariably are members of the nba. sixteen members of the council including the president 12 the council for legal education has refused to accredit the law degree progamme of the national open university of nigeria(noun) for failing to meet up with its benchmark requirements for law degree, see, thisday newspaper, 10th april, 2013,http:www.thisdaylive.com 13 see section 2 (d)(viii) cap.n 81 op.cit. for the composition of the national universities commission. 14 section 2(1), ibid 15 external and internal quality assurance: imperatives for the development of nigerian university system: a paper presented at the workshop on quality assurance and service delivery in nigerian universities, held at the university of maiduguri from 4th 6th june, 2013 by dr n.b saliu, deputy director (undergraduate/ institutional accreditation) national universities commission) abuja, legal education and challenges of contemporary developments in nigeria 598 international journal of clinical legal education issue 20 of the nba are selected or elected to represent the nba, the president being a member by virtue of his office16. considering the rich and varied composition of the council – (lawyers in practice, members of the nba, attorney-general of states and all deans of the faculties of law) among others, one may be tempted to conclude that the council is in a better position than the national universities commission to bring about the desired change in legal education. unfortunately, the legal education (consolidation act) is neither flexible enough nor gives room for change in legal education as is desired unless the same is amended or repealed and replaced with an all encompassing one. for now, the nba is trying to face the challenges of legal education through its progamme of continuing professional development (cpd).17 the continuing professional development programme which is an aspect of legal education include: a) the attendance and participation in accredited courses b) lectures, seminars, workshops and conferences on law approved by the nba. c) writing on the law and its practice in books, journals or newspapers approved by the nba d) study towards professional qualification approved by the nba. e) other approved means of acquiring legal professional knowledge and experience. the aim of the cpd is to continuously improve the quality of legal education by keeping the lawyer abreast of developments professionally and in academic terms. as observed earlier, a lawyer is a reflection, a mirror of the system of legal education that produced him – a good system of legal education produces better equipped lawyers. likewise, a system of legal education can make its product better through continuing legal education as is the case with the cpd of the nba. the judicial arm is similarly facing the challenges of legal education through its programme of continuing judicial education, a progamme carried out by the national judicial institute (nji). the nji performs tasks similar to that of cpd by conducting trainings, courses, organising seminars, conferences and workshops for judicial officers often based on need assessment. these forms of continuing legal education will no doubt enhance the quality of the recipients in particular and the system in general.18 v. challenges of legal education the philosophy and objective behind the law degree programme (ll.b) as enunciated by the nuc is: “… to ensure that the graduate of law will have good general knowledge of law, including a clear understanding of the place and importance of law in society…it is therefore necessary that the student of law should also have a broad general knowledge and exposure to other disciplines in the process of acquiring legal education. the programme should introduce students to the general knowledge in law, acquaint them with principles of judicial process and legal development, and equip them with the basic tools of legal 16 section 2 nuc act, op.cit for composition of the council 17 section 11(1) 2007, made pursuant to the legal practitioners act, cap. cap.l11, laws of the federation of nigeria,2004 18 hon. justice dahiru mustapher (former chief justice of nigeria) , contemporary problems plaguing judicial educators: experience and way forward for national judicial institute, nigeria, nji law journal (2012)vol.7 pp1-14. 599 analysis and methods. legal education should act first, as a stimulus to stir the student into critical analysis and examination of the prevailing social, economic and political systems of his community and, secondly, as an intellectual exercise aimed at studying and assessing the operation, efficacy and relevance of various rules of law in the society. the curriculum must also ensure that law is taught as it exists at any given moment, and that every law student will be comparative in his approach to legal studies bearing in mind that there are many systems of law (statutory law, common law, customary law and islamic law) currently in operation.” this philosophy underpinning the ll.b law pragramme may satisfy the academic requirements of a law student who desires to be content with being acquainted with general principles of law and legal conditions of his immediate environment. however, in vocational terms, a law student needs to go much further in order to actualize his dream of becoming a 21st century lawyer. it is partly in realization of this fact that the idea of clinical legal education was conceived. the aims of clinical legal education include among other things the provision of necessary skills to would-be lawyers by exposing them to practical aspects of law at an ‘impressionable stage’. the question is has the introduction of clinical legal education achieved its purpose. while we do not have any statistics to justify any stand we may take on this poser, one fact however stands out, most of those who teach courses on clinical legal education do not have the necessary skills in the areas being taught. if we agree that the aim of clinical legal education is designed to equip the student with tools and skills necessary for a would-be lawyer to acquire practical skills, then, the teacher must himself be acquainted with the nifty side of practice both as a solicitor and advocate. this means that the teacher must as a matter of necessity be well grounded in the general practice of the law. regrettably, there are not enough practically oriented law teachers to take the students through the most critical aspects of legal education. in order to succeed in meeting the challenges of clinical legal education, the teacher must as a matter of necessity have the necessary skills and experience in advocacy and solicitors work before imparting it to others. as rightly observed by the then chief justice of the united states, justice burger 19: “…the medical profession does not try to teach surgery simply with the books; more than 80 percent of all medical teaching is done by practicing physicians and surgeons. similarly, trial advocacy must be learned from trial advocates”. the above statement is apt when it comes to clinical legal education and the vocational training at the nigerian law school. it will therefore be foolhardy to expect law students to learn the necessary advocacy and other skills from those who do not have them. clinical education must go beyond teaching with the books. the amendment to the legal aid council act20 which recognizes university law clinics as centers for provision of legal aid, presuppose the existence of trial advocates who can represent those eligible to legal aid in accordance with the legal aid (amendment) act. otherwise how else can the lecturer/ clinician render legal assistance to the indigent or those on remand without bail for minor offences? this then brings us to experiential legal education which is what the law clinic and the law school should be involved in for the most part of the students’ training. 19 burger, the special skills of advocacy: are specialized training and certification of advocates essential to our system of justice? 42 fordharm l. rev. 227 (1973) at 232 20 see legal aid (amendment) act,2011 legal education and challenges of contemporary developments in nigeria 600 international journal of clinical legal education issue 20 the nigerian law school as a vocational and skill acquisition center has sadly abdicated its responsibilities of giving practical approach to legal training in favour of a three-month period of court and law office attachment. this may perhaps be the reason for the call for restructuring and reorganization of the council of legal education and the nigerian law school and by implication a call for the review of the legal education (consolidation etc) act as well as other laws on legal education. among those making such calls is the chairman of the council of legal education who is reported to have remarked as follows: “it must be noted that the proposals, for restructuring and  re-organisation of the council of legal education and the nigerian law school,  are geared towards improving the content and quality of the legal education in nigeria, and ensure that the legal practitioners produced by the nigerian law school are duly equipped with requisite character and learning, so that they may be  better enabled to discharge their duties and responsibilities in that regard, not just in nigeria, but throughout the world.”21 any proposal for restructuring or review of legal education must entail substantial amendment or even the outright repeal of the legal education act. lack of review of laws governing legal education is one of the major challenges confronting legal education in nigeria. other challenges which also need to be addressed include the dearth of legal materials and the limited exposure of law teachers to workshops and conference. vi. overcoming the challenges in order to overcome the challenges of legal education, the academic and vocational curriculum has to be redesigned to make it more relevant to the contemporary needs of the student and the society. times are changing; therefore, the teaching of law must change with the tide otherwise the profession will soon be inundated with impostors who cannot easily be distinguished from the lawyer due to poor academic and vocational training. vocational training should in particular be made more practical by attaching law students to law firms and courts for at least seven of the nine month period of the academic session. my experience over the years as a law teacher and practitioner is that law office attachments afford the average student the opportunity of acquiring necessary skills faster than he does with the theoretical aspect. unfortunately, the period allocated for the law office and court attachment is not enough for any meaningful acquisition of vocational education. at the academic level, law libraries should be better equipped with enough up to date legal materials with access to legal resources and all the information communication technology (ict). the teaching of clinical legal education courses should be expanded, streamlined and made compulsory for all law students. in addition, law clinics should establish linkages with law firms so as to enable the student to have early exposure to experiential legal education by following lawyers to court and getting involved in the management of the law office among others. this way, the student will start learning the ‘tricks’ of the trade. most importantly, if vocational education is to remain wholly a government enterprise, then there is the need to harmonise the roles of the council of legal education and the national universities commission under a single legislation on legal education. this is to avoid duplication and conflict in the roles of national universities 21 thisday newspaper, april,10,2013, 601 commission and the council over accreditation, curriculum development etc. on the other hand, if the law school is to be run by the faculties of law of the various universities as is being advocated recently, a view which i also subscribe to, then activities of law clinics should be streamlined and the same should be made the nucleus of university law schools. allowing some selected universities to begin the law school programme will assist in reducing the heavy backload of applicants who for one reason or the other could not be admitted to the nigerian law school. it may well be remembered that the raison d’etre for increasing the number of law school campuses from four to six in the last two years is to allow the ever growing population of law graduates fulfill their dreams of becoming lawyers. the same argument can be extended in allowing some universities to run the law school programme with the ultimate aim of divesting the nigerian law school of functions of providing legal education to persons seeking to become members of the legal profession in the long run since it has become obvious that the nigerian law school cannot cope with the ever increasing number of applicants. when this happens, the council of legal education will remain the central examination body for all the law schools while at the same time retaining its power of issuing qualifying certificates to those entitle to be called to bar. vii conclusion legal education is at a cross road, it is currently facing challenges which i believe are not insurmountable. as it is, the legal education (consolidation etc.) act allows only the federal government to establish and run law school. while the establishment and running of universities including faculties of law in those universities is open to all and sundry. out of the 128 universities in nigeria, 40 are owned by the federal government, 38 by state governments and 50 are privately owned. and of this number, thirty six run degree programes in law with prospect for more. there is however only one nigerian law school with six campuses owned and funded by the federal government that admits candidates for practical training from all the thirty six faculties of law and law graduates of foreign universities. the nigerian law school cannot cope with the increasing number of applicants. hence, the need for universities to run their own law schools. if practical training at the nigerian law school is the three-month court and law office attachment, then law clinics can equally organize and better supervise the students in that respect. finally, whether the nigerian law school remains as it is or the faculties of law of nigerian universities are allowed to run law school programmes as is being advocated, the curriculum of legal education must be restructured. commerce is not only about trade in goods but it is also about trade in services, in order for the nigerian trained lawyer to be able to compete globally, the education curriculum must be made competitive, purposeful and result oriented. legal education and challenges of contemporary developments in nigeria 602 international journal of clinical legal education issue 20 special issue: adrian evans festschrift reflections on the contributions of adrian evans jeff giddings, associate dean (experiential education), monash law faculty my early memories of adrian evans are from community legal centre national conferences in the late-1980s. he was well established at the la trobe src legal service when i started at fitzroy legal service. adrian was the quiet achiever with responsibility for the professional indemnity insurance cross-checks that all clcs needed to complete. adrian arrived at monash law faculty in 1988, taking on the role of director of the (then) springvale legal service (now the springvale monash legal service). in taking over this role from simon smith, adrian had a hard act to follow. my respect for both simon and adrian has continued to grow over the last 30 years. as a student then volunteer at springvale legal service (sls), i saw how simon had shaped the maverick culture of sls, driving progress on a wide range of issues and spearheading the fundraising that enabled sls to build new premises at 5 osborne avenue. with the support of senior monash clinicians, sue campbell and guy powles, adrian developed a more structured approach to establishing the priorities of both sls as a service and the monash clinical program more generally.[footnoteref:1] [1: jeff giddings, promoting justice through clinical legal education, justice press, 2013, chapter 6.] springvale legal service a key focus of adrian’s early casework at sls involved continuing simon’s work on claims against a local solicitor, peter c neil. former clients of neil’s came to sls seeking advice regarding proceedings issued against them by neil, seeking payment of legal fees for work done years earlier.[footnoteref:2] i remember adrian telling me that this work persuaded him that developing socially responsible lawyers required the community ‘to deal with lawyers who are rogues.’ he rightly called out the failure of the law institute of victoria to hold lawyers to the standards expected by the public. ‘we couldn’t be coherent as a clinical program unless we were addressing both ends of the problem.’[footnoteref:3] [2: ibid, 188.] [3: ibid, 188-189.] adrian’s approach to lawyering provided a powerful example to his students and colleagues. my monash clinical colleague, ross hyams shared the following insight into adrian’s time as director of sls: during adrian’s time as director of sls, he always bore such a sense of social responsibility that he felt that he was basically unable to turn a client in need away. this was back in the days before the legal service put a cap on how many clients could be seen on any given day. so, having dealt with the rush of 15-20 clients in the mornings that he was on session, any client who wandered in for the rest of the day would always be seen. this sometimes resulted in another 5-10 clients in the afternoon, rolling into the night. it was well known amongst the students that if you were assigned to adrian’s client session day that you would work and work hard! adrian was the catalyst for moves by the monash clinical program to extend student involvement in community development activities. this involved focused group work with clearly articulated objectives and was in keeping with adrian’s view that ‘clinical legal education can only reach its full social and educative potential in a community environment’.[footnoteref:4] [4: adrian evans, ‘developing socially responsible lawyers’ (1990) 15(5) legal service bulletin 218, 219.] calling canberra! there’s a great story about adrian sending a letter of congratulations to the shadow attorney general after an election, congratulating him (wrongly) on becoming the first law officer in the jurisdiction. this anecdote was no doubt a one-off occurrence as adrian has generally been very effective in balancing ‘big picture’ vision with command of the detail. adrian was closely involved in efforts to raise the profile of clinical legal education with successive federal governments in the 1990s.[footnoteref:5] monash was recognised for its leadership role in australian clinical legal education through the arrangements made for its clinicians, including adrian, to mentor staff involved in establishing the new clinical program at murdoch university in 1996.[footnoteref:6] the 1998 federal budget announced funding for the commonwealth attorney-general’s department to support university clinical legal education programs and, early in 1999, monash was one of the four law schools that secured funding, establishing the family law assistance program (flap) supporting family law clients without legal representation.[footnoteref:7] [5: giddings, note 1, 191.] [6: ibid, chapter nine, footnotes 68-73 for further details. ] [7: jeff giddings, ‘the commonwealth discovers clinical legal education’ (1998) 23(3) alternative law journal 140. in relation to the operation of the flap, see susan campbell and alan ray, ‘specialist clinical legal education: an australian model’ (2003) 3 international journal of clinical legal education 67.] in 1996, adrian wrote about the establishment of a multi-disciplinary clinic addressing the complex issues faced by victims of sexual assault.[footnoteref:8] having observed similar clinics overseas, he approached carolyn worth (co-ordinator of the south east centre against sexual assault (secasa) about the development of a pilot program. this advanced placement became an ongoing part of the monash clinical program.[footnoteref:9] it provided students who had completed the general clinic with opportunities to further develop their skills and ‘gain a deeper understanding of the operation of the legal system through immersion in a particular area of law’.[footnoteref:10] [8: adrian evans, ‘specialised clinical legal education begins in australia’ (1996) 21(2) alternative law journal 79.] [9: fay gertner and carolyn worth, ‘compensating sexual assault victims: the development of a specialist legal clinic’ in bronwyn naylor and ross hyams (eds), innovation in clinical legal education: educating lawyers for the future (2007) 53. ] [10: ibid.] the australian clinical best practices project monash was the lead institution for a collaborative project to develop best practices in australian clinical legal education in 2011-2012. with funding from the australian government office for learning and teaching, clinicians from 6 law schools (anna cody, anna copeland, adrian evans, mary anne noone, simon rice and myself) developed resources to support effective practices in clinical legal education.[footnoteref:11] adrian was the leader of this ambitious project to develop standards or recommended practices (“best practices”) for effective clinical legal education in australia both to improve the delivery of clinical legal education and to assist in the renewal of university law curricula. [11: see best practices: australian clinical legal education: the final report of the project, strengthening australian legal education by integrating clinical experiences: identifying and supporting effective practices. accessible at https://ltr.edu.au/] adrian had to adjust his approach to leading the best practices project. it became clear early on that he had hoped we would develop a set of standards to be met by all clinical programs. other members of the team (me included) saw our aim as providing guidance through the identification of effective practices that programs should consider adopting. i could see the way that it was a challenge for adrian to take this different approach and i was impressed that he managed to do so. it became a consensus-driven project with every team member having lots of ideas and plenty to say. hard work but productive. at one team meeting, adrian asked ‘when are we going to get to my pet thing?’. i’ve enjoyed using that phrase in subsequent discussions. we developed a comprehensive set of best practices, organised under seven themes comprising course design, law in context in a clinical setting, reflective student learning, assessment, supervision, staff and infrastructure. these best practices were endorsed by the council of australian law deans in november, 2012.[footnoteref:12] the project also generated a jointly-authored book, australian clinical legal education.[footnoteref:13] adrian’s role was once again important here as we moved to share more of what we had learnt through the project. [12: ibid, 7.] [13: adrian evans, anna cody, anna copeland, jeff giddings, peter joy, mary anne noone & simon rice australian clinical legal education, anu press, 2017. ] the monash clinical guarantee monash is in the midst of a major expansion of its clinical legal education program. we have introduced a clinical guarantee, assuring every law student that they will have an opportunity to participate in our clinical program if they so choose. we are the first australian law school to do so and you can imagine that doing so has involved a range of opportunities and challenges. monash is seeking to develop approaches to foster legal professionals and thinkers who will be adept in emerging local and global professional contexts. the clinical program has been identified as having an important role to play in preparing students for the world of future legal work. the faculty is implementing the guarantee across 2018-2020. this involves a very substantial increase in the numbers of students able to participate in a clinical experience. we expect that by the end of 2020, more than 80% of students will take up this opportunity to participate before they complete their degree. we are expanding existing clinics as well as building a range of new partnerships and collaborations. 287 students were able to participate in a clinical unit in 2018 and 385 are projected to participate in 2019. this expansion in participation has been enabled by strong support from monash university and its law faculty with extension of one of its key clinic sites, monash law clinics – clayton, and the opening of a new clinic site in the melbourne cbd, monash law clinics melbourne. adrian evans was a key figure in the development of the clinical guarantee as an idea once it was suggested by peter joy when he visited monash law faculty in 2016. having now been given the opportunity to steer this ambitious project, i want to thank adrian for having the ‘can do’ attitude and vision to pursue an ambitious project like the clinical guarantee. adrian had the good sense to work closely with our dean, bryan horrigan and the (then) faculty manager, jane prior, in developing the initial proposal. since then, he has had the strength not to try to be a back seat driver. he has helped melissa fletcher and me in our efforts to juggle an array of interests and agendas as we develop and implement this worthy project. 44 editorial walking the talk: clinic and our values elaine hall northumbria university, uk elaine.hall@northumbria.ac.uk is clinical legal education an inherently moral undertaking? in this issue of the ijcle, we have three papers linked by their focus on the underpinning values of cle: whether we can transmit our values through the clinic experience; whether we can most effectively teach ethics through clinic and whether our commitment to and belief in clinic should be expressed by bringing it from the margins to the centre of legal education. there is a common perception amongst educators that we transmit our values tacitly through the curriculum and that, by providing students with a particular kind of learning experience, we create in them specific dispositions. the logical formula appears to run: 1. we embed the values in the structure of the curriculum (e.g. by running a pro bono clinic) 2. we engage students in the activity 3. they absorb the values and become active agents pursuing those values in future activities. mailto:elaine.hall@northumbria.ac.uk once written down in this way, the potential for diversion from this programme becomes more apparent, not least the likelihood that we had the experience but missed the meaning, and approach to the meaning restores the experience in a different form, (t.s eliot). in his paper, drawing on empirical research conducted at northumbria university, paul mckeown reflects on the evidence for ‘values transfer’ and looks critically both at the complex ecology of what students might take from experiential learning in a capstone1 clinic and how that data can be captured. anna cody takes up the baton in her discussion of the teaching of ethics. her paper provides a detailed engagement with what constitutes ethical and professional identity, developing a social constructivist frame for understanding how ethical cultures are formed and sustained. she develops this into an argument for ‘applied ethics’ teaching through a clinical element within the curriculum and provides a detailed analysis of how this operates in practice for students, supervisors and curriculum designers. finally, neil gold gathers together many years of clinical education experience to give an extended reflection on the untapped potential of clinic. using a detailed analysis of educational standards, assessment and learning outcomes, he challenges 1 a clinic experience placed at the end of a degree programme in which the prior academic and skills learning is operationalised. the marginal status of clinic within the legal curriculum, advancing the argument not just that cle can deliver all the learning outcomes but that it is best suited to do so. these debates continue, are enriched by more participants and on that note i would like to draw your attention to a series of upcoming events. firstly, the forthcoming european network for clinical legal education (encle) workshop which is being held at northumbria university on 15th and 16th april 2015 and which is supported by the open society initiative for europe (osife). the workshop will aim to generate discussion, through themed sessions, as to how clinicians can prepare their students for a clinical experience. delegates will be able to share their own ideas and experiences and learn from others. session facilitators will be drawn from a range of jurisdictions to enhance the discussion and draw out ideas for best practice2. on 4th june 2015 northumbria will host an interactive seminar and discussion forum, problematising assessment in clinical legal education 3 , featuring professor beryl blaustone (city university of new york); professor jose garcia anon (valencia university); richard grimes (university of york); professor judith mcnamara (queensland university of technology) and cath sylvester (northumbria university). 2 for details of how to apply, please contact ustege@iuctorino.it or paul.mckeown@northumbria.ac.uk 3 https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/lawresearch/legal-education-and-professional-skills/problematising-assessment-in-clinical-legal-education/ mailto:ustege@iuctorino.it mailto:paul.mckeown@northumbria.ac.uk https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/law-research/legal-education-and-professional-skills/problematising-assessment-in-clinical-legal-education/ https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/law-research/legal-education-and-professional-skills/problematising-assessment-in-clinical-legal-education/ after that, we look forward to the next ijcle conference, held jointly with the global alliance for justice education at anadolu university in eskişehir, turkey between 22nd and 28th of july, 2015 (http://www.gaje.org/8th-worldwide-conference/). we are delighted to have contributions in the ijcle stream addressing: 1. the map for learning law: clinic and curriculum design papers considering the place of clinics in the wider law curriculum, the connections between legal knowledge and skills taught before, during and after the clinical experience and the specific goals of the clinic. 2. collaborative learning: comparative perspectives on clinic papers involving two or more settings, focusing on how differences of context and ecology have shaped specific elements of practice locally as well as linking core practice and beliefs about clinic, education and outcomes for students and clients. 3. how do we know?: research, evidence and impact in clinical education papers focusing specifically on methods of evaluation and the nature of the evidence that we use to understand and assess our clinics, representing a range of philosophical and methodological approaches. please let me know about cle events and i will publicise them here – do bear in mind our approximate publication dates of february, july and november. i hope to see many of you at these events! http://www.gaje.org/8th-worldwide-conference/ references eliot, t.s. (1941) the dry salvages. published in the new english weekly, collected in the four quartets (1943) new york: harcourt from the field 125 clinical legal education for gender justice in europe zara saeidzadeh postdoctoral researcher in gender studies, örebro university, sweden. bojana cuckovic associate professor of public international law and human rights, university of belgrade, serbia. dragica vujadinovic professor of political and legal theories, university of belgrade, serbia. abstract generated directly from the field, this paper elaborates on the knowledge shared during the process of a research project called lawgem (new quality in education for gender equality – strategic partnership for the development of master’s study program on law and gender) in an effort to develop a gender equality legal clinic to sensitise students about gender issues within legal education in europe. the paper elaborates on the experience of two countries, sweden and serbia through discussing the challenges in achieving gender justice. finally, it introduces gender equality legal clinic as a learning outcome of lawgem project for legal pedagogical purposes. from the field 126 1. introduction this paper is an outcome of a workshop which was organized in may 2022 within the lawgem project (new quality in education for gender equality – strategic partnership for the development of master’s study program on law and gender). the lawgem project was launched in 2019 as a result of collaboration between five european universities including cadiz university in spain, lumsa university in italy, europa institut/saarland university in germany, belgrade university in serbia and örebro university in sweden aimed at building a curriculum for a master of laws program that incompasses legal education and training across subjects among the partner institutions while contributing to the expansion of knowledge on the role and essence of legal professionals and legal clinics. one of the intellectual outputs of the project was to develop a syllabus for gender equality legal clinic (gelc) which is one of the main components of the curriculum for the master study of law and gender. the purpose of the workshop was to understand how legal clinics in the mentioned five european countries have been operating and also to further discuss the implementation of gelc at these universities. thus, the paper first explains the development of legal clinics within legal education and their benefits. after that, it focuses on the importance of gender in clinical legal education and legal research as an alternative to traditional clinical legal education. in doing so, the paper further examines specificities of differentialities of sweden and serbian in the context of from the field 127 europe. the paper concludes by outlining the added value of gender equality legal clinic (gelc). 2. legal clinics and clinical legal education the term legal clinic or law clinic was originally used by anglo-saxon legal scholars to allow law students to work on real cases in real life. legal clinics emerged in early 1900, as a training machinery in a form of non-profit organization to prepare law students for their future legal profession (bradway, 1927; uyumaz and erdogan, 2015). 2.1. from the early to recent developments in europe: roles and benefits of clinical legal education clinical legal education is used as a term which refers to a learning methodology adopted by law schools. its pedagogical capacity is based on the experience that students develop their knowledge and understanding of substantive law as well as lawyering activities (thanaraj, 2016) legal clinics emerged in the uk in the 1970s and in central and eastern europe during the 1990s after the fall of communism. in western europe, legal clinics only started to develop since 2000. the 1999 bologna declaration, aimed at the creation of a common european area for higher education, has played a significant role in clinical legal from the field 128 education. so has the european network for clinical legal education which was established in 2013 with the aim of strengthening the clinical legal education community through organising conferences and training workshops at the european level. this network initiated and stimulated a very vibrant exchange of ideas among legal experts and rising numbers of students interested in getting additional practically oriented legal education. european network of legal clinics enhances students` mobility and strengthens relationships between universities, scholars and activists in the eu. in the recent development of legal clinics in countries such as the uk, germany, spain, italy, portugal, france and denmark, aside from legal information, students receive research and advocacy training for law reforms (uyumaz and erdogan, 2015). furthermore, legal clinics aim to enhance students’ skills to empower those people who are vulnerable, marginalized and disadvantaged in society (meghdadi and erfani nasab, 2011). moreover, nowadays, legal clinics provide pro bono services to people and if necessary, refer them to appropriate governmental, non-governmental bodies or media outlets for further advocacy on the cases. legal clinics are claimed to be “best practice towards social justice” (maria concetta romano 2016:37). it is also proposed to be greatly needed in the current educational programs for the new generations through active personal involvement that is known as “interactive and experiential methodology” (ibid. 39) in education for justice. from the field 129 clinical legal education programs have been increasing in europe. one reason is said to be that the traditional legal education is questioned more and more in europe. law students, young professors and practitioners are not satisfied with law being taught traditionally, such as abstract legal matters which do not correspond with reality of people’s lives. clinical legal education helps to bridge the gap between law in the books and the law in action. another reason is that europe is facing strong social and political challenges. therefore, the ability and capability of the legal system is being challenged by scholars, students, and social activism. also, in line with the eu’s legal system applicable to all eu member states, anti-discrimination laws and gender equality policies are being adopted. general benefits attributed to legal clinics are to enhance the quality of university education and to increase interactions between academia, state and civil society. in europe specifically, legal clinics can enhance attention to fundamental human rights and access to justice through fighting discrimination and inequality while it can promote active citizenship and democratic participation in europe through students’ mobility and relationships between universities in europe. according to clelia bartoli (2016: 25) “the mission of legal clinic therefore is to show the law as human construct historically determined with limits but able to be refined, the product of time, place, circumstances but also the key to make the reality different. they therefore offer young people the exciting experience of being agents of social change, aimed at building a more equitable and inclusive society, or at least trying to from the field 130 reduce the impact of an excessively unbalanced distribution of power, resources and rights.” 2.2. clinical legal education and gender clinical legal education with a focus on women’s rights is important as it facilitates a variety of pro bono projects, among which are those with giving direct advice and assistance to women through the law clinics, and sometimes also an assistance before the courts. women do face gender–based barriers in accessing justice. governmental schemes for legal aid are not sufficient to support women in most jurisdictions and different countries’ social assistance systems. women’s legal empowerment is in principle rooted in their knowledge of law and how to use the law to claim rights. however, poverty and lack of education have represented strong barriers in that respect. insofar, legal aid clinics and clinical legal education have an important role in the knowledge-based empowerment especially in the case of vulnerable groups of women, who do need professional pro bono assistance and help. legal aid clinics and clinical legal education contribute differently but cumulatively to combatting gender-based injustice conceived as discrimination, inequality, violence and as not having access to justice. reasons for ill treatment of women before the law is due to gender insensitive laws – discriminatory laws, male-dominated laws, gender biased laws as well as biased and stereotyped judgments by the judges made in a gender incompetent manner. from the field 131 3. two approaches towards using clinical legal education for the benefit of gender equality: sweden and serbia operating in rather different circumstances and facing diverse legal obstacles, legal clinics in sweden and serbia offer fertile ground for a comparative analysis of their features, modes of functioning as well as challenges en route to gender justice. 3.1. sweden: limited clinical legal education following the social democratic welfare regime based on collective equality and universalism, the nordic countries are reported to be among the countries in europe which have the highest investment on legal aid providing legal services per inhabitant (european commission for efficiency of justice, 2020). among 47 countries in europe, norway stands first in giving the most legal aid per inhabitant, sweden is sixth and denmark is eighth, finland is tenth and iceland is eleventh. northern european states also have a strong tradition of generous legal aid with a significant budgetary share within the total budget of the judicial system: ireland (39%), norway (33%), and sweden (30%). also, norway, sweden and iceland, spend more than 25 € per inhabitant per year on legal aid. as a general trend, the nordic countries and the uk spend proportionally more than the other countries on legal aid, while the less wealthy countries spend proportionally less on legal aids. at the same time, less wealthy countries spend relatively more compared with the richest countries on the prosecution services (european commission for efficiency of justice, 2020). from the field 132 in sweden, the legal aid act was the first legislation to provide free legal aid to poor people in 1919. the subsequent legal aid in the 1960 was influenced by the nordic welfare policy to provide both free litigation aid and legal aid assistance. in 1973 the legal aid act (1972: 429) came into force to equalize access to legal services by enabling everybody in any case legal aid. this was part of the generous welfare policies and programs which was provided to all of the population. the swedish legal aid act was described as the most generous and comprehensive scheme until 1990s but after mid 1990s it is described as a limited act in comparison with other nordic countries. the current swedish legal aid act (1996: 1619) came into force in december 1997 which introduced new eligibility for receiving legal ais and cut out public spending on legal aids in the country (shoultz 2018: 46). based on the current legal aid act in 1997, in sweden, there are public and private covers for legal aid in civil cases. the private one is the legal expenses insurance (rättsskydd) as part of household insurance and the public is the legal aid insurance (rättshjälp) which is provided under certain conditions: the person earns less than 28000 euros or 260000 sek a year, have no legal expenses insurance or have no financial means to cover it and this insurance is only available for private individuals. (shoultz 2018, 43). furthermore, based on the current legal aid act, most people in sweden are not qualified to receive legal aid for civil and family court cases. this was a strategy taken up by the government to enable people to resolve their legal matters from the field 133 without lawyers and outside the courts (regan 2003). in sweden everyone is entitled to receive legal aid, but the current legal aid act has made it difficult for people to access legal aid. what is more, clinical legal education was not institutionalized in swedish universities until 2013. as a result of the current legal aid act, public legal services are less available for people with difficult life situations and those who are disadvantaged in society and those whose legal needs are not even recognized. in the middle of the 1990s, prior to the reform of legal aid, sweden had more than one hundred publicly employed lawyers working in twenty-eight bureaus at the county level (johnsen 1994)). all of these state-financed legal aid bureaus were closed down in 1999 on the grounds that the state should no longer engage in the practice of law. today, there are no publicly employed lawyers who can provide legal aid in sweden. moreover, legal aid is offered by private lawyers called judicare. a legal aid counsel does not have to be a lawyer which means no formal qualifications are required. it should be noted that any person can be a legal counselor in sweden. alternatives to these types of legal aid in sweden are: swedish bar association which gives free legal advice in their spare time on issues like immigration (they are organized within the so-called the swedish advice centre). voluntary student legal clinic in sweden appeared during 2005-2013 in lund and uppsala where new student initiatives started targeting homeless people or socially disadvantaged. legal aid research and education is underdeveloped in sweden, especially in comparison to the neighbouring countries such as norway in which a very famous legal aid clinic called from the field 134 law buss (juss-buss) emerged in oslo during the early 1970s. at law buss prestigious legal experts – lawyers and judges gave legal assistance to people in the public transport of oslo and other major cities (hammerslev and ronning 2018). 3.2. serbia: long tradition of clinical legal education restrained by the legislator though there are differences among universities in serbia regarding the number of thematic clinical legal education programs offered as well as the sub-area of law covered, main goals intended to be achieved through legal clinics may be divided into two categories. on the one hand, legal clinics are perceived as relevant for the society in general. namely, they tend to engage universities in the life of the community, enhance professionalism and professional ethics of future lawyers, educate them about the importance of pro bono work and sensitise lawyers for the needs and problems of marginalized and vulnerable groups. on the other hand, legal clinics contribute to students in a number of ways. perceived as a powerful pedagogical model, legal clinics undoubtedly improve students’ practical and analytical skills, they offer students with a valuable opportunity to be guided by professionals and experts in solving cases related to real life stories of fellow citizens, as well as to be trained to establish quality contact with clients. these diversified goals are achieved through three categories of means. firstly, although dominantly oriented towards practical work, legal clinics do involve highly specialised training of students. besides in-depth lecturing delivered by prominent from the field 135 legal experts and practitioners, students also receive education on legal ethics and successful communication skills, especially on how to conduct interviews and consult with clients. secondly, interactive teaching methods are used that develop students’ analytical and practical skills. these include, but are not limited to, legal case studies, writing of various submissions, legal acts and legal opinions, simulations of proceedings and moot courts. finally, an important tool used by numerous legal clinics in serbia is cooperation with relevant partners such as state bodies, international organizations and non-governmental organizations. established cooperation enables students to engage in various internships, participate in guided study visits, perform field work, attend trials, but also be involved in different kind of practical work at the faculty provided by external experts and practitioners such as judges, prosecutors, lawyers, public notaries, mediators etc. dependence of legal clinics in serbia on partner institutions, as well as reliance on previously mentioned interactive teaching methods, has become one of their main features in 2019 with the commencement of application of the law on free legal aid of the republic of serbia. namely, before the entry into force of the law on free legal aid, students worked with real life clients and offered them legal aid. the law on free legal aid deprived law faculties of a possibility to offer free legal aid and, instead, recognized them only as ‘providers of free legal support’ (art. 12). according to the relevant provisions of the law, legal support does not include offering legal advice which is considered an element of free legal aid (art. 6). instead, free legal from the field 136 support is restricted to providing general legal information, not information relevant for a particular client or his or her concrete legal problem (art. 11). in addition, legal support includes filling out forms, but only upon official registration and once registered, the provider of free legal support has a duty to annually report to the ministry of justice (art. 16 and 17). such a legislative solution imposes significant limitations for the functioning of legal clinics in terms of both the opportunities for practical education of students and offering free legal aid to citizens. this is a general challenge that affects all legal clinics and it is also an important obstacle with regard to clinical legal education related to gender equality. in addition to this, gender equality issues within legal clinics face further challenges due to two main reasons. not only is there insufficient commitment to issues of gender-sensitive practice in the general education of law students, but the complexity and multidimensionality of gender equality as a social and legal phenomenon also makes it very difficult to deal with all of its various aspects (criminal law, criminal procedure, civil law, civil procedure, family law, labour law, international law, human rights law) through a classical organization of clinical legal education related to a particular field of law. this argument is supported by the current state of affairs since there is a limited number of legal clinics at the universities in serbia that specialize in gender equality. women’s rights legal clinic operating at the faculty of law of the university of niš is unique in this regard since it covers a comprehensive range of issues. instead, other existing legal clinics either focus on a single issue such as domestic violence, or, from the field 137 although oriented towards other fields of law, incidentally, deal with particular aspects of women’s rights. as an example of such an approach, the relevance of gender issues in relation to trafficking in human beings has recently been recognized within the legal clinic on combating human trafficking organized at the university of belgrade faculty of law. in 2022, a workshop was organized on risks of human trafficking and gender-based violence within the population of women and girls’ refugees in serbia. three young women from iran, russia and nigeria talked to students about their experiences, the reasons why they left their countries of origin and the risks and challenges women face in migration flows. such an authentic, moving and ultimately startling experience-telling is the best way to sensitise students about the status, real-life and legal problems of this category of women and girls. last but not least, the long-running anti-discrimination law legal clinic operating at the university of belgrade faculty of law regularly focuses in its curriculum on different gender issues such as the legal status of transgender persons, hate crimes and discrimination and domestic violence. in 2021 this legal clinic offered trainings that related to discrimination based on gender, thus demonstrating that the curriculum of existing clinical legal education programs may be adapted to include highly specialised trainings on various gender-sensitive issues despite legislative and practical obstacles. however, a specialised legal clinic dealing with all aspects of gender equality across legal fields would supplement the existing programs and bring valuable complement to developing gender equality through clinical legal education. from the field 138 4. conclusion: gelc as an added value in clinical legal education legal clinics whose primary focus is gender equality issues are still quite rare. the gelc within lawgem project aims to promote gender justice and feminist judgments as insofar to train students on how to be conscious about gender inequality and reject different forms of discrimination based on gender and sexuality as well as other multiple grounds of discrimination such as socio-economic status, religion, class, race, ability, and cultural backgrounds. moreover, the aim of gelc developed within lawgem project is to move away from the conventional understanding of legal clinic and adopt an intersectional perspective as how to provide different types of services to diverse groups of people. this means that the course is not limited to law students, which allows students in variety of subjects such as international law, human rights law, humanitarian law, criminology, economic, gender, sexuality and violence to receive training. the objectives of lawgem gender equal legal clinic training are: 1) to increase students’ gender consciousness and knowledge of intersectional perspective in handling cases, 2) to enhance students’ abilities to critically analyse structural inequalities and propose constructive changes to the legal and justice system, 3) to develop students’ capacities to work with national and international bodies and further cooperate with civil society in their advocacy for gender justice. it is anticipated that the pedagogical outcomes will be: 1) in-depth knowledge on the importance of gender and intersectional gender analysis through looking at policies from the field 139 and practices at national, european, and international levels. 2) necessary skills on how to provide advice including legal services to the victims of certain crimes with special attention to social positionality of the victims in relation to gender, sexuality, race, class, ethnicity, (dis)ability, religion, nationality, and age. 3) required ability on cooperation with other organizations; ngos and gos and practitioners at regional, national, and international levels to advocate for achieving gender justice. however, due to the outlined differences between the respective normative frameworks on legal aid in serbia and sweden, the future gelc will need to use different modus operandi in order to achieve the same set of objectives and outcomes. in serbia, gelc will not only focus on gender but also will cover wide range of issues in all areas in which women are at risk: employment and labour, education, violence against women, hate speech, sport etc, as recognized by the serbian national strategy for gender equality for the period 2021-2030. due to the fact that gelc will not be able to work with real clients, it is important to design appropriate methods that would compensate for the limitations in offering free legal aid introduced by the novel legislative solutions. thus, within gelc students will be trained to draft summaries and factsheets of international standards on various gender issues, conduct analysis of existing national legislative and judicial practices and their harmonisation with international standards, draft reports to be submitted to relevant international bodies, prepare briefs, legal analysis and opinions for different stakeholders, organise debates on legal problems encountered by specific groups of women and other persons of from the field 140 concern for gelc (refugees, roma, women with disabilities, women victims of domestic violence, women victims of human trafficking, migrant workers, transgender persons, …), provide ‘know your rights’ info sessions for specific categories of persons of concern for gelc. in sweden gender equality is institutionalised at the level of state, activism and academia. moreover, gender equality measures between men and women have been introduced into multiple policy areas since the 1970s. such a top-down appraoch to gender mainstreaming has led to the establishmet of gender equality agency (jämställdhetsmyndigheten) in 2018. although monitoring and policy evaluation in the implementation of gender equality policies continue to be reinforced in sweden, a system of gender binary prevails and multiple grounds of inequality is often overlooked in accessing legal aid. thus, in helping with real clients cases, gelc’s aim in sweden is to focus on not only women, but also on gender and sexualy diverse people. moreover, it focuses on problematising the underlying social categories to see how they reinforce discrimination in society. references bartoli, c. (2016). legal clinics in europe: for a commitment of higher education in social justice. diritto & questioni pubbliche, 1. from the field 141 bradway, j. s. (1927). new developments in the legal clinic field. louis l. rev., 13, 122. european commission for efficiency of justice, report 2020. retrieved on 9 february 2023: https://www.coe.int/en/web/portal/-/efficiency-and-quality-of-justice-ineurope-2020-report johnsen, j. t. (1994). nordic legal aid. md. j. contemp. legal issues, 5, 301. hammerslev, o., & rønning, o. h. (2018). legal aid in the nordic countries. in outsourcing legal aid in the nordic welfare states, hammerslev, o., & rønning, o. h (eds). pp. 311-328. springer international publishing. law on free legal aid, official gazette of the republic of serbia, 87/2018. legal aid act (rättshjälpslagen1996:1619). retrieved on february 10, 2023: https://www.riksdagen.se/sv/dokumentlagar/dokument/svenskforfattningssamling/rattshjalpslag-19961619_sfs-1996-1619 meghdadi, m. m., & nasab, a. e. (2011). the role of legal clinics of law schools in human rights education; mofid university legal clinic experience. procedia-social and behavioral sciences, 15, 3014-3017. regan, f. (2003). the swedish legal services policy remix: the shift from public legal aid to private legal expense insurance. journal of law and society, 30(1), 49-65. https://www.coe.int/en/web/portal/-/efficiency-and-quality-of-justice-in-europe-2020-report https://www.coe.int/en/web/portal/-/efficiency-and-quality-of-justice-in-europe-2020-report https://www.riksdagen.se/sv/dokument-lagar/dokument/svenskforfattningssamling/rattshjalpslag-19961619_sfs-1996-1619 https://www.riksdagen.se/sv/dokument-lagar/dokument/svenskforfattningssamling/rattshjalpslag-19961619_sfs-1996-1619 from the field 142 romano, m. c. (2016). the history of legal clinics in the us, europe and around the world. diritto & questioni pubbliche, 16, 27. shoultz, i. (2018). legal aid in sweden. in in outsourcing legal aid in the nordic welfare state, hammerslev, o., & rønning, o. h (eds). pp. 43-76. springer international publishing. strategy for gender equality for the period 2021-2030, official gazette of the republic of serbia, 103/2021. thanaraj, a. (2016). understanding how a law clinic can contribute towards students' development of professional responsibility. int'l j. clinical legal educ., 23, 89. uyumaz, a., & erdoğan, k. (2015). aile hukukundan doğan uyuşmazlıkların alternatif çözüm yolları. dokuz eylül üniversitesi hukuk fakültesi dergisi, 17(1), 119169. reviewed article 213 improving law student resilience: an australian perspective doris bozin, allison ballard, vicki de prazer1 introduction do university legal clinics, clinical legal educators and health practitioners have a role to play in building the resilience of law students to better equip them to manage their academic studies and their professional lives as they move into legal practice? given that mental health issues such as depression and anxiety are rife across australia’s law student and legal professional populations, we wondered if developing a legal clinic model in collaboration with a university-based health service would offer one way to address these concerns. to this end, in june 2017, we piloted a university-based healthjustice legal advice clinic at the university of canberra. the clinic’s tripartite goals were to offer practical legal experience to law students, to assess and develop law student resilience through a strong orientation and pastoral care program, and to deliver a pro-bono community legal service to clients (primarily) sourced and referred from the university’s medical and counselling service. with the guidance of a 1 doris bozin is a clinical assistant professor in law at the university of canberra, dr allison ballard is a lecturer at the school of policing studies at charles sturt university and vicki de prazer is a senior psychologist at the university of canberra. reviewed article 214 psychologist, the program focused on developing individualised resilience-building strategies incorporated into the academic course of study. student-focused strategies directed towards preparing them for personal, academic and professional life challenges encompassed a strong pastoral care component developed in collaboration with a psychologist from the health service. we thought this novel approach might better equip law students to deal effectively with their academic studies and future professional lives. in this article we first consider the relatively poor mental health of australian law students, lawyers, other legal professionals, the possible reasons for such outcomes and their potentially tragic consequences, before examining some of initiatives taken by the legal profession and the academy to address student and practitioner mental health concerns. finally, we discuss the case study of the pilot health-justice legal advice clinic in the context of these concerns. australian lawyers are more likely than the general population to experience depression, anxiety,2 and other forms of mental illness, with almost a third of solicitors and a fifth of barristers suffering from clinical depression.3 lawyers are also more likely than other professionals to self-medicate for stress and sadness using drugs, 2 laura helm, mental health and the legal profession: a preventative strategy final report (australia, law institute of victoria, 2014) 6. 3 ibid. see also norman kelk, georgina luscombe, sharon medlow, and ian hickie, courting the blues: attitudes towards depression in australian law students and legal practitioners (australia, brain & mind research institute, university of sydney, 2009). reviewed article 215 including illicit drugs and alcohol.4 they are also at higher risk of heart disease.5 in addition, the personality profiles of lawyers are often said to ‘cluster around perfectionism and pessimism’ characteristics, known risk factors for severe depression.6 suicide on account of severe depression and a reluctance to seek help are also common throughout the legal fraternity,7 including across australia’s magistrate and judge cohort.8 this dire situation is comparable to that in other common law countries: a study by the canadian bar association for example, suggests the suicide rate of lawyers is five to six times higher than canada’s national average,9 while the new york and chicago bar associations report rampant ‘unhappiness’ and ‘discontent’ among young lawyers.10 in addition, researchers at johns hopkins 4 toni vozzo, ‘new committee focuses on wellbeing of legal profession’ (2012) law society of south australia bulletin 10,10; janet chan ‘work-life balance’ (2015) law society of nsw journal 58,58; cindy penrose, ‘another inconvenient truth: mental health and the legal profession’ (2012) 223 ethos 9; beyond blue: the national depression initiative, annual professions survey: research summary (april 2007) 3 http://www.judicialcollege.vic.edu.au/sites/default/files/2007%20%20beyond%20blue%20-%20annual%20professions%20survey.pdf. 5 martin e. p. seligman, paul r.verkuil, and terry h. kang ‘why lawyers are unhappy’ (2005) 10(1) deakin law review 49, 53. 6 cindy penrose, ‘another inconvenient truth: mental health and the legal profession’ (2012) 223 ethos, 8. 7 ibid. 8 noel towell and adam cooper, ‘struggling magistrates cry for help’ the [melbourne]age (2 april 2018) online: the age <https://www.theage.com.au/national/victoria/struggling-magistrates-cry-forhelp-20180401-p4z7bh.html>; peter wilmoth, ‘loneliness, panic attacks, insomnia: life for some on the judicial bench’ the sydney morning herald (2 august 2018) online: smh <https://www.smh.com.au/national/loneliness-panic-attacks-insomnia-life-for-some-on-the-judicialbench-20180731-p4zukq.html>. 9 skip simpson and paul quinnett, ‘preventing suicide: a challenge to the legal profession’ (2008) gp solo 60, 60. 10 seligman et al, above n5, 49-50. http://www.judicialcollege.vic.edu.au/sites/default/files/2007%20-%20beyond%20blue%20-%20annual%20professions%20survey.pdf http://www.judicialcollege.vic.edu.au/sites/default/files/2007%20-%20beyond%20blue%20-%20annual%20professions%20survey.pdf https://www.theage.com.au/national/victoria/struggling-magistrates-cry-for-help-20180401-p4z7bh.html https://www.theage.com.au/national/victoria/struggling-magistrates-cry-for-help-20180401-p4z7bh.html https://www.smh.com.au/national/loneliness-panic-attacks-insomnia-life-for-some-on-the-judicial-bench-20180731-p4zukq.html https://www.smh.com.au/national/loneliness-panic-attacks-insomnia-life-for-some-on-the-judicial-bench-20180731-p4zukq.html reviewed article 216 university found that even adjusting for socio-demographic factors, the legal profession suffered from major depressive disorders at 3.6 times the rate of other workers.11 in 2009, australia’s brain and mind research institute (bmri) conducted research into depression, distress and other mental illnesses in lawyers and law students.12 its report confirmed what had already been found in the united states (us) and canada; that law students are at high risk of depression and psychological distress. indeed, the bmri found that 35 per cent of law students reported high levels of distress as compared to 13 per cent of the general community. it seems then that both attending law school and practising law are health hazards.13and since law is such a public profession, dysfunction within it can entail ‘…. societal, as well as personal, costs. indeed, the creation of law itself is in one sense bound up with the health of judges, lawyers, legislators, and academics.’14 as thornton observes though, it is difficult to temper the psychological distress of law students (or lawyers) where it emanates from unknown causes.15 therefore, gaining a 11 ibid, 53. 12 kelk et al, above n3, 46; margaret thornton, ‘law student wellbeing: a neoliberal conundrum’ (2016) 58(2) australian universities review 42, 42. 13 penrose, above n4, 8. 14 martin e. p. seligman, paul r.verkuil, and terry h. kang ‘why lawyers are unhappy’ (2005) 10(1) deakin law review 49, 50-51. 15 thornton, above n12, 42. reviewed article 217 better understanding of the factors that contribute to this dysfunction in both populations with a view to identifying possible remedies (or better still, prevention) is a worthwhile exercise. i. why such high rates of mental illness? a number of possible explanations have been proposed to account for the high levels of mental illness and distress within both the legal profession and in law students. these explanations canvas and cross the boundaries of individual, psychological, organizational, cultural and societal perspectives. factors contributing to high levels of psychological distress may, for example, include the individual personality profiles of law students and legal practitioners,16 the work culture of the legal profession,17 workplace bullying and harassment,18 high work caseloads (especially for judges and 16 penrose, above n4, 58. 17 chan, above n4, 58. 18 sophie schroder, ’lawyers some of australia’s worst bullies?’ australasian lawyer (8 october 2014) online: australasian lawyer<https://www.australasianlawyer.com.au/news/lawyers-some-ofaustralias-worst-bullies-192671.aspx>. see also, the international bar association report, us too? bullying and sexual harassment in the legal profession (iba, 2019). reviewed article 218 magistrates), under-resourcing,19 low levels of autonomy and decision latitude,20 the adversarial nature of the legal practice (particularly in common law countries and jurisdictions),21 social trends such as neoliberalism,22 increased levels of (often critical, uninformed, and biased) public scrutiny from the media and politicians, and in the case of judicial officers especially, the solitary and independent nature of their work.23 additionally, relentless public criticism for being “soft on crime”, “tough” or accusatory language around so-called “errors” in judicial decision-making levelled by superior courts in appeal decisions, and the need for judicial officers to advocate on behalf of unrepresented litigants in the context of reduced legal aid funding can all take their toll and have potentially devastating impacts on the psychological well 19 recent figures suggest that in the australian state of victoria, 120 magistrates and court registrars heard more than 680,000 criminal matters in the 2015-16 financial year and could face a daily load of 50 cases on matters ranging from family violence and assault to driving offences: peter wilmoth, ‘loneliness, panic attacks, insomnia: life for some on the judicial bench’ the sydney morning herald (2 august 2018) online: smh <https://www.smh.com.au/national/loneliness-panic-attacks-insomnia-life-forsome-on-the-judicial-bench-20180731-p4zukq.html; each magistrate in victoria oversees an average 8000 hearings [2500 cases] annually, while half the cases in the county court are sexual offences, often involving children: adam cooper, ‘what you don’t understand about our job: judges, magistrates speak out’ the ([melbourne]age (3 august 2018) online: the age <https://www.theage.com.au/national/victoria/what-you-don-t-understand-about-our-job-judges-magistratesspeak-out-20180803-p4zvey.html>. 20 seligman et al, above n5, 50. 21 judy gutman ‘litigation as a measure of last resort: opportunities and challenges for legal practitioners with the rise of adr’ (2015) 14(1) legal ethics 1-21. 22 thornton, above n12, 42-49. 23 adam cooper, ‘what you don’t understand about our job: judges, magistrates speak out’ the age on-line 3 august 2018 <https://www.theage.com.au/national/victoria/what-you-don-t-understand-about-ourjob-judges-magistrates-speak-out-20180803-p4zvey.html>; peter wilmoth, ‘loneliness, panic attacks, insomnia: life for some on the judicial bench’ the sydney morning herald on-line 2 august 2018 <https://www.smh.com.au/national/loneliness-panic-attacks-insomnia-life-for-some-on-the-judicial-bench20180731-p4zukq.html>. https://www.smh.com.au/national/loneliness-panic-attacks-insomnia-life-for-some-on-the-judicial-bench-20180731-p4zukq.html https://www.smh.com.au/national/loneliness-panic-attacks-insomnia-life-for-some-on-the-judicial-bench-20180731-p4zukq.html https://www.theage.com.au/national/victoria/what-you-don-t-understand-about-our-job-judges-magistrates-speak-out-20180803-p4zvey.html https://www.theage.com.au/national/victoria/what-you-don-t-understand-about-our-job-judges-magistrates-speak-out-20180803-p4zvey.html https://www.theage.com.au/national/victoria/what-you-don-t-understand-about-our-job-judges-magistrates-speak-out-20180803-p4zvey.html https://www.theage.com.au/national/victoria/what-you-don-t-understand-about-our-job-judges-magistrates-speak-out-20180803-p4zvey.html https://www.smh.com.au/national/loneliness-panic-attacks-insomnia-life-for-some-on-the-judicial-bench-20180731-p4zukq.html https://www.smh.com.au/national/loneliness-panic-attacks-insomnia-life-for-some-on-the-judicial-bench-20180731-p4zukq.html reviewed article 219 being of practitioners.24 these possible explanations for high levels of mental illness in the legal profession are further explored below. as jenaway points out though, compounding all of the above is of course ‘the unfavourable public perception of lawyers supported by a plethora of movies and jokes as immoral, ruthless mercenaries.’25 a. mental health within the legal profession the nature of the work undertaken by lawyers, including being exposed to vicarious trauma, constant work pressures including hefty caseloads and substantial (and potentially unachievable) ‘billable hours’ targets,26 a lack of workplace flexibility and poor workplace cultures can all add to or cause psychological distress among legal practitioners.27 where there is a working environment which may necessarily ‘[c]ombine [the loneliness of solitary, independent decision-making and] dealing with a really vile and traumatic case involving shocking child pornography and then going 24 peter wilmoth, ‘loneliness, panic attacks, insomnia: life for some on the judicial bench’ the sydney morning herald on-line 2 august 2018 <https://www.smh.com.au/national/loneliness-panicattacks-insomnia-life-for-some-on-the-judicial-bench-20180731-p4zukq.html>. 25 gutman above n21, 8. 26 see for example yale law school, the truth about the billable hour (updated july 2017) online: yale law school <https://law.yale.edu/truth-about-billable-hour-0ome private law firms> where billing 37.5 hours per week (the average australian working-week) requires lawyers to spend long hours at work to achieve revenue targets. 27 kelk et al, above n3; and chan above n4, 58. https://www.smh.com.au/national/loneliness-panic-attacks-insomnia-life-for-some-on-the-judicial-bench-20180731-p4zukq.html https://www.smh.com.au/national/loneliness-panic-attacks-insomnia-life-for-some-on-the-judicial-bench-20180731-p4zukq.html reviewed article 220 home to your kids or grandkids and trying to put that out of your mind and you've been alone all day making decisions. that's a challenge.’28 in addition, australia’s legal professional culture generally tends to be ‘maledominated, money-centred, overly competitive (thus encouraging aggression rather than collaboration)’ with unreasonable expectations around working hours.29 these characteristics are not inherently conducive to achieving good mental health and wellbeing or work-life balance. there is also evidence that the levels of adversarialism inherent in the nature of legal practice in common law jurisdictions: ‘…. negatively impacts on the social well-being and mental health of legal practitioners…. [and that] ... [d]ecreased adversarialism may lead to a happier and healthier legal profession, which [would necessarily benefit] the administration of justice.’30 further complicating a complex and difficult picture – an environment in which overwork and under-resourcing is rife, in which a commitment to social justice is not always translatable into day-to-day basis work practices, and in which practitioners are apparently reluctant to admit to, report, or seek help with their psychological struggles – is the fact that almost a third of legal professional disciplinary matters 28 victorian county court chief judge peter kidd: adam cooper, ‘what you don’t understand about our job: judges, magistrates speak out’ the age on-line 3 august 2018 <https://www.theage.com.au/national/victoria/what-you-don-t-understand-about-our-job-judges-magistratesspeak-out-20180803-p4zvey.html>. 29 chan, above n4, 58. 30 gutman, above n 21, 2. https://www.theage.com.au/national/victoria/what-you-don-t-understand-about-our-job-judges-magistrates-speak-out-20180803-p4zvey.html https://www.theage.com.au/national/victoria/what-you-don-t-understand-about-our-job-judges-magistrates-speak-out-20180803-p4zvey.html reviewed article 221 involve issues of lawyer mental ill-health.31 in other words, severely impaired professional practice can be a consequence of poor mental health, and may in fact be the issue that first brings the practitioner’s mental disorder to light.32 this is a vicious circle in which compromised mental health leads to poor professional performance, judgement and misconduct, the consequences of which in turn, exacerbate poor mental health and distress. b. the mental health of australian law students while some students may self-select to study law because of the status associated with having a law degree,33 research also suggests that certain personality traits such as competitive behaviour,34 high achievement-orientation,35 and pessimistic tendencies also predispose law students to a risk of depression when they become lawyers.36 additionally, law schools may act as potential breeding grounds for future lawyer demoralization.37 legal education is said to promote certain types of behaviours such 31 penrose, above n6, 10. 32 this figure is based on an estimate by john briton, the queensland legal services commissioner, but it is likely that this would be reflected in other australian states and territories: penrose, above n6, 10. 33 wendy larcombe, ian malkin and pip nicholson, ‘law students’ motivations, expectations and levels of psychological distress: evidence and connections’ (2012) 22 legal education review 71, 89. 34 ivar nordmo and akylina samara, ‘the study experience of the high achievers in a competitive academic environment: a cost of success?’ (2009) issues in educational research 255. 35 gerald hess, ‘heads and hearts: the teaching and learning environment in law school’ (2002) 52 journal of legal education 75. 36 seligman et al, above n5, 52-54. 37 ibid. reviewed article 222 as being defensive, pessimistic and perfectionist in law students these behaviours may, in turn, lead to unhappiness.38 australian and other research has found that law students do not demonstrate elevated psychological distress before law school – distress only manifests during the first year of university study.39 still, ‘pessimism’ is not inherently pejorative – it may be reframed as ‘prudence’ – a healthy caution, scepticism and ‘reality-appreciation’ which may be a professional (if not personal) asset for law students and lawyers.40 it is a quality embraced both in legal education41 and by the legal profession because it enables ‘good lawyers’ to see the ‘snares and catastrophes that might conceivably occur in any given transaction’.42 while this ability may well benefit the client, it is not always beneficial for lawyers within their private spheres.43 educating law students to display the qualities of ‘detachment, adversarialism and neutrality’ or to ‘think like a lawyer’ may negatively impact on student well-being.44 this points to the need to 38 susan daicoff, ‘lawyer, know thyself’ (1997) 46(5) american university law review 1337. 39 thornton, above n12, 43; kennon m sheldon and lawrence s krieger, ‘does legal education have undermining effects on law students? evaluating changes in motivation, values and well being’ (2004) 22 behavioural sciences and the law 262, 275; molly townes o’brien, stephen tang and kath hall, ‘changing our thinking empirical research on law student wellbeing, thinking styles and the law curriculum’ (2011) 21 legal education review 149. 40 seligman et al above n5, 56. 41 ibid. 42 ibid. 43 ibid, 49. 44 thornton, above n12, 52. reviewed article 223 develop skills to recognise the difference between the psychological attitudes and approaches needed at work versus those required at play.45 a number of studies have confirmed that australian law students experience high to very high levels of psychological distress in comparison to other people in the community.46 for instance study by leahy et al found that law student psychological distress levels (58 per cent) were higher than those of mechanical engineering students (50 per cent), medical students (44 per cent) and psychology students (40 per cent).47 while (south) australia’s tertiary students generally are four times more likely to be psychologically distressed than their age-matched peers from the general population.48 a further study that compared law and psychology students again found that law students had higher mean anxiety and depressive scores. 49 that said, other research indicates that law students as a group do not necessarily experience more psychological distress than non-law students and that distress is a 45 seligman et al above n5. 46 kelk et al, above n 3. 47catherine m. leahy, ray f. peterson, ian g. wilson, jonathan w. newbury, anne l. tonkin, deborah turnbull, ‘distress levels and self-reported treatment rates for medicine, law, psychology and mechanical engineering tertiary students: cross-sectional study’ (2010) australian and new zealand journal of psychiatry 608 at 609. 48 ibid, 609, 613. 49 natalie skead and shane rogers, ‘do law students stand apart from other university students in their quest for mental health: a comparative study on wellbeing and associated behaviours in law and psychology students’, (2015) international journal of law and psychiatry 42-43, 81-90. reviewed article 224 university student-wide problem.50 for instance, larcombe et al found that veterinary science students at the university of melbourne experienced higher levels of psychological distress than law students,51 although law students recorded higher levels of stress than disciplines such as engineering and science.52 the culture of legal education itself has attracted research attention with much of the early work on the mental health of students undertaken in the us. a longitudinal study led by benjamin found that symptoms of psychological distress in law students increased significantly in the first year of law and persisted throughout their degree studies, to post-graduation,53 having a negative effect on their overall mental health.54 recent australian research mirrors these findings. for example, o’brien et al found that prior to entering law school, law students have similar levels of wellbeing to, and in some cases higher levels, than those reported in the general population.55 however, from the first semester in law school, law students begin to experience stress, anxiety and depression at rates higher than students in other disciplines such as medicine, 50 wendy larcombe, sue fince and rachel sore, ‘who’s distressed? not only law students: psychological distress levels in university students across diverse fields of study (2015) 37 sydney law review 243. 51 ibid. 52 ibid. 53 andrew benjamin, alfred kaszniak, bruce sales and stephen shanfield, ‘the role of legal education in producing psychological distress among law students and lawyers’ (1986) 11 american bar foundation research journal 2. 54 ibid. 55 o’brien et al, above n39, 149. reviewed article 225 psychology and engineering.56 further, a study conducted by lester et al reported a significant increase in symptoms of depression in law students from the beginning to the end of first year.57 lester’s study showed that by the end of first year of law school, 15 per cent of students reported symptoms indicating moderate to very high levels of depression requiring possible clinical investigation as compared to 8.5 per cent at the beginning of first year.58 this then leads to further questions about curriculum design and its potential contribution to the psychological distress of law students.59 for example, does an emphasis on rational legal reasoning and linear thinking (which may be disconnected from social justice issues and de-emphasise creativity, personal values and reflection),60 together with teaching practices such as the socratic method,61 have a negative impact on law student health and well-being? and does the learning environment within law schools – with its typically highly competitive nature and 56 ibid. 57 anthony lester, lloyd england and natalia antolak-saper ‘health and wellbeing in the first year: the law school experience’ (2011) 36 (1) alternative law journal 47. 58 ibid. 59 o’brien et al, above n39, 149. 59 ibid. 60 james duffy, rachael field and melinda shirley, ‘engaging law students to promote psychological health’ (2011) alternative law journal 250; anne colby, judith welch wegner, lee shulman, lloyd bond, and william m. sullivan, educating lawyers: preparation for the profession of law, jossey bass, 2007; jean stefancic and ricard delgado, how lawyers lose their way: a profession fails its creative minds, duke university press, 2005. 61 anna huggins, ‘autonomy supportive curriculum design: a salient factor is promoting law students wellbeing (2012), university of new south wales law journal 683. reviewed article 226 heavy workloads also contribute to reduced levels of law student well-being?62 do they, in turn, reduce student peer support,63 as well as opportunities for it to occur? other contributing factors may include inadequate feedback, a lack of competence and autonomy,64 a lack of social connectedness,65 and inadequate support of services for students.66 extrinsic factors such as why students wanted to study law in the first place,67 and the rewards for doing so, as well as a preoccupation with academic results and ranking,68 may also have a part to play. researchers have also considered the socio-economic context of law students to assess whether these factors are also contribute to psychological distress. those studies highlight that factors such as age,69 gender,70 employment (including the number of 62 ibid. 63 vozzo, above n4, 10 and kelk et al, above n3, 46. 64 huggins, above n61, 683. 65 natalie skead and shane l rogers, ‘stress, anxiety and depression in law students: how student behaviours affect student wellbeing’, (2014) monash law review 40, 2. the authors conclude that social connectedness is central to wellbeing of law students. 66 huggins, above n61, 683. 67 dominic fitzsimmons, simon kozlina and prue vines, ‘optimising the first year experience in law: the law peer tutor program at the university. 68 wendy larcombe, ian malkin and pip nicholson, ‘law students’ motivations expectations and levels of psychological distress: evidence and connections (2012), 22 legal education review, 71, 85, 86. 69 wendy larcombe, sue finch, rachel sore, christina m. murray, sandra kentish, raoul a. mulder, parshia lee-stecum, chi baik, orania tokatlidis & david a. williams ‘prevalence and sociodemographic correlates of psychological distress among students at an australian university (2016) studies in higher education, 41:6, 1074-1091. 70 wendy larcombe, letty tumbaga, ian malkin, pip nicolson, orania tokatlidis, ‘does and improved experience of law school protect students from depression, anxiety and stress? an empirical study of l and the law school experience of llb and jd students’ (2012) university of reviewed article 227 hours worked),71 and caring responsibilities72 may all influence the psychological distress of law students. soh et al found that law students had not acquired a foundational level of mental literacy to ensure their own wellbeing. further, this study found that while many law students suffered from high to very high levels of stress, they also lacked a proactive approach to seek out medical and health services,73 raising questions about why this would be so in an otherwise intelligent and (at least initially, pre-law school) welladjusted cohort of students. it seems then that the high levels of psychological distress among law students is a multi-factorial problem and actually going to law school is (or becomes) part of that problem. but it is also important to consider the broader socio-economic context74 as melbourne law research services,1; nerissa soh, fiona burns, rita shackel, bruce robinson and michael robertson, ‘law student mental health literacy and distress: finances, accommodation and travel time, (2015) legal education review 25 1. 71 helen stallman ‘psychological distress in university students: a comparison with general population data’ (2011) australian psychologist 45, 4. 72 wendy larcombe and katherine fethers, ‘schooling the blues? an investigation of factors associated with psychological distress among law students, (2013) university of new south wales law journal 390. 73 ibid. 74 larcombe et al, above n72. more importantly the study shows that you need to take care before making broad assumptions in relation to the reasons behind law students’ high psychological distress levels. reviewed article 228 well as students’ own personality traits, characteristics, expectations and motivations.75 some researchers have criticised the conclusions drawn from empirical research and argued that looking at the law school experience (including the “legal thinking” taught there) misses the “wider picture”. parker, for example, claims that mental distress is a society-wide problem which cannot be treated at an individual level.76 however, as thornton points out, the growing body of australian literature around law student well-being which emerged in the 21st century offers no explanation for the sudden ‘eruption of psychological distresses among law students’.77 leahy et al did not attempt to explain why tertiary student distress rates are significantly higher than age-matched peers who were not tertiary students but did suggest that changing university cultures may well be a factor.78additionally, the many competing demands faced by students including part-time work, intensive discipline-based academic commitments (common to disciplines such as medicine, law and mechanical engineering) and family obligations are likely to play a role.79 they postulated that 75 larcombe et al, above n72, 85-86. 76 christine parker, ‘the “moral panic” over psychological wellbeing in the legal profession: a personal or political ethical response?’ (2014) 37 unsw law journal 1103, 1121. 77 thornton, above n12, 42. 78 leahy et al, above n47, 608-609. 79 ibid. reviewed article 229 since these multi-factorial demands minimize time for social activities and relaxation, they could contribute to the high rates of reported psychological distress.80 in thornton’s view though, the focus on law student well-being individualises and depoliticises the problem, shifting focus from the significant role played by the neoliberalism of australia’s higher education and transforming it from a public to a private good. in her view, the ways in which law students are taught – the “how” and the “what” of legal education – could be altered to ensure they are better equipped to deal with the pressures of the “age”.81 specifically she argues that law schools should be more transparent about labour market problems and the curriculum ‘diversified to prepare students for a range of employment destinations other than traditional legal practice’.82 this does not deflect from the fact that law students are suffering distress, that many of them will enter legal practice after their studies, and that their future selves are likely to experience the same levels of psychological distress as contemporary lawyers do. unless of course, some action is taken to change either their capacity to cope or the legal culture in which they find themselves. australia’s tertiary sector has long been concerned with the high prevalence of mental health problems in all university students, not just law students, as this cohort has 80 ibid. 81 thornton, above n12, 42. 82 ibid. reviewed article 230 been identified as being an at-risk population.83 stallman argues that this highlights the need for universal “early interventions” to prevent the development of severe mental illness in university students and that it is an issue that should be of concern for all educators.84 ii. law: australian mental health initiatives over the last decade, in line with an increased community awareness of the high levels of mental health issues and distress experienced by the legal profession and law students,85 a number of mental health and wellbeing initiatives have been implemented by the legal profession and the academy.86 there has also been broader support for initiatives that look at cultural, organisational and societal issues to support the legal profession and law students. in 2012, fisher identified a number of initiatives to make life in legal organizations, universities, law firms and the courts ‘less stressful and more supportive for legal practitioners and students’. these included providing education about mental illness (including triggers, preventative measures and effective remedies), addressing toxic workplace cultures, emphasising the role of ‘enlightened leadership’ (including by putting 83 stallman, above n71, 4. 84 ibid. 85 briana everett, perils the profession can’t ignore (12 december 2011) lawyers weekly http://www.lawyersweekly.com.au/news/repairing-the-paradox and bmri report. janet chan ‘depression, anxiety & stress in the legal profession’, law institute of victoria journal december 2014 86 helm, above n2, 6. http://www.lawyersweekly.com.au/news/repairing-the-paradox reviewed article 231 meaningful, confidential and accessible pastoral care systems in place), and examining ways to increase individual and team resilience in the face of work stress.87 a. initiatives within the legal/judicial profession by 2014 australia’s legal professional associations had generally accepted that lawyer mental wellbeing was an industry and profession-wide issue requiring action.88 prior to this though the profession had already been quietly taking steps to address these concerns.89 the peak representative body of the australian legal profession, the law council of australia, provides a national support mechanism through its mental health and wellbeing portal.90 further, the law societies/institutes of each australian state and territory seek to raise awareness of and to remove the stigma of mental illness in the 87 penrose, above n6, 9. 88 helm, above n2, 6. 89 beyond blue and beaton consulting, the national depression initiative report 2007; online: https://www.beyondblue.org.au/media/media-releases/media-releases/professionals-unsure-of-how-to-managedepression-and-anxiety-disorders-in-the-workplace. overall the survey found that professionals and students experience more symptoms of depression than the rest of the population, and that the symptoms of depression amongst lawyers and law students, when compared to other professions were high. 90 law council of australia, online: https://www.lawcouncil.asn.au/policy-agenda/advancing-theprofession/mental-health-and-wellbeing-in-the-legal-profession. https://www.beyondblue.org.au/media/media-releases/media-releases/professionals-unsure-of-how-to-manage-depression-and-anxiety-disorders-in-the-workplace https://www.beyondblue.org.au/media/media-releases/media-releases/professionals-unsure-of-how-to-manage-depression-and-anxiety-disorders-in-the-workplace https://www.lawcouncil.asn.au/policy-agenda/advancing-the-profession/mental-health-and-wellbeing-in-the-legal-profession https://www.lawcouncil.asn.au/policy-agenda/advancing-the-profession/mental-health-and-wellbeing-in-the-legal-profession reviewed article 232 legal profession and in law students. they also provide a range of services to support mental health and wellbeing of their member lawyers.91 along with raising awareness of the mental health issues impacting on members of the legal profession, it has become easier for members of the profession to access mental health services.92 together, these factors have all contributed to a growing national conversation about the mental health and wellbeing of the legal profession,93 much of which has focused on the structural factors leading to poor mental health within the profession.94 a recent inquiry by victoria’s workplace health and safety regulator, worksafe, into employee fatigue at one of australia’s “top-tier” law firm, for example, highlighted mental health issues and safety risks in legal workplaces.95 worksafe’s inquiry arose in the context of a complaint to the royal commission into 91 each law society has a range of services that includes access to counselling services for their members and families and continuing legal education to improve mental health and wellbeing of the legal profession. 92 for example, the victorian bar has a 24-hour counselling service; many large firms and government agencies have employee assistance programs (eap) _ which provide confidential counselling services. 93 those forums include, but aren’t limited to: the national wellness for law which explores issues of mental health and wellbeing in the legal profession and law students through the exchange from the profession, academia and its supporters and the australian wellness network for law that provides hub for sharing of information and resources – a community of legal academics, practitioners and students who are committed to: first, addressing the high levels of psychological distress experienced in law; and second, promoting wellness at law school, in the legal academy, and in the profession. 94 jennifer windsor, maria nawaz submission to the productivity commission inquiry into mental health (law society of new south wales young lawyers, 19 april 2019) 9, available on-line at https://www.pc.gov.au/__data/assets/pdf_file/0012/241203/sub456-mental-health.pdf. 95 ibid, at 3. https://www.pc.gov.au/__data/assets/pdf_file/0012/241203/sub456-mental-health.pdf reviewed article 233 misconduct in the banking and finance services industry about overwork in the profession.96 in relation to this complaint, thompson et al reported on 12 october 2018: ‘graduates were subject to gruelling conditions, with some employees choosing to sleep at the firm’s melbourne office rather than return home. day and night shifts were allocated, so work could continue around the clock’.97 in a follow-up article in the australian financial review on 26 october 2018, whyte et al suggested that the problems of overwork and fatigue in the legal profession extended to the particular law firm mentioned in the worksafe complaint.98 yet, at the same time, a number of law firms have taken initiatives to assist their staff with mental health and wellbeing issues, including by employing an on-site psychologist to provide early intervention to assist staff with any mental health and well-being issues.99 96 ibid, at 9. 97 ibid. see also sarah thompson, jemima whyte and david marin-guzman, ‘king & wood mallesons investigated for overworking employees’ (the australian financial review, 12 october 2019) online: https://www.afr.com/companies/king--wood-mallesons-investigated-for-overworking-employees20181011-h16hei; kate allman ‘the burnout profession’ (law society journal 27 march 2019) online: https://lsj.com.au/articles/the-burnout-profession/. 98 jemima whyte ‘worksafe investigation lifts lid on can of worms’ (australian financial review (26 october 2018) 99 hannah wooton ‘law firm brings psychologist on site as mental health wanes’ (australian financial review 31 october 2019) 6 online: https://www.afr.com/companies/professionalservices/law-firm-brings-psychologist-on-site-as-mental-health-wanes-20191023-p533g6. https://www.afr.com/companies/king--wood-mallesons-investigated-for-overworking-employees-20181011-h16hei https://www.afr.com/companies/king--wood-mallesons-investigated-for-overworking-employees-20181011-h16hei https://lsj.com.au/articles/the-burnout-profession/ reviewed article 234 perhaps more importantly, there has been a generational change occurring in how millennials approach the nature of work. for example, furlong argues that we are at an important transition in the evolution of legal services with a new generation of lawyers demanding a better work-life balance.100 furlong argues that the next generation of lawyers will ‘rewrite he dna of law firms’101 and reshape the legal industry,102 as millennials take-over the legal industry.103 b. initiatives within the australian academy since the bmri report, law schools across australia have implemented a range of strategies to address law student mental health well-being with strategies varying depending upon the particular social and cultural setting of the university. law school budgets, funding for mental health initiatives, leadership commitment, student 100 jordan furlong, ‘the rise of the millennial lawyer’ lawyers on demand report (24 may 2017) online: <https://www.lodlaw.com/reports/rise-millenial-lawyer>. this new generation of lawyer also wants collaboration, connection and diversity of work. 101 ibid. see also doris bozin, allison ballard and vicki de prazer, ‘interdisciplinary collaboration to benefit ‘new’ and emerging lawyers’ in judith marychurch and adiva sifris, wellness for law: making wellness core business’ (lexisnexis butterworths, australia, 2019) 229-238. 102 margot freedman alicks ‘how millennials are reshaping the practice of law’ (colorado biz 19 november 2018) online: https://www.cobizmag.com/trends/how-millennials-are-reshaping-thepractice-of-law/.. 103 amanda robert, ‘millennials are poised to take over; how will the legal industry need to change?’ (american bar association journal 1 march 2019) online: <http://www.abajournal.com/news/article/millennials-are-a-dominant-force.. reviewed article 235 communities, and law course mode of delivery are all important factors in determining the types of strategies that a given law school adopts.104 australian legal academics acknowledge the importance of addressing the issue of high levels of law student psychological distress in a range of different ways.105 many working within this community feel they have a responsibility to ameliorate the high levels of distress experienced by students, believing it to be an ethical responsibility of academics.106 in 2009 though hall noted that some academics (and students) were blinded by certain cognitive barriers that obstructed their understanding of research on psychological wellbeing in law school.107 and that australian law schools needed to take steps to ‘avoid the unintentional denial and rationalisation that can occur around issues of student wellbeing’108 and to ‘consider how to create environments where both academic staff and students are encouraged to reflect on the impact of legal education on their own thinking and emotional wellbeing.’109 as hall observed ‘a spectrum of respected sources tell us that high levels of emotional health, maturity 104 bmri report, 48 105 rachel field and james duffy, ‘better to light a single candle than curse the darkness: promoting law student well-being through a first year law subject’, (2012) 12 qul law and justice journal 1. 106 rachel field, altc fellowship flinders presentation, 17 september 2013, online: http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=2ahukewjq8lla783eahxwbn 0khbpicayqfjaaegqibrac&url=http%3a%2f%2fwww.flinders.edu.au%2fteaching_and_learning_file s%2fdocuments%2faltc_fellowship%2520flinders%2520presentation_17%2520september%25202013.pp t&usg=aovvaw2_rizyblb7-p8a6oummy6e. 107 kath hall, ‘do we really want to know? recognising the importance of student psychological wellbeing in australian law schools, (2009) 9(1) qut law journal 4. 108 ibid, 11. 109 ibid, 12. http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=2ahukewjq8lla783eahxwbn0khbpicayqfjaaegqibrac&url=http%3a%2f%2fwww.flinders.edu.au%2fteaching_and_learning_files%2fdocuments%2faltc_fellowship%2520flinders%2520presentation_17%2520september%25202013.ppt&usg=aovvaw2_rizyblb7-p8a6oummy6e http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=2ahukewjq8lla783eahxwbn0khbpicayqfjaaegqibrac&url=http%3a%2f%2fwww.flinders.edu.au%2fteaching_and_learning_files%2fdocuments%2faltc_fellowship%2520flinders%2520presentation_17%2520september%25202013.ppt&usg=aovvaw2_rizyblb7-p8a6oummy6e http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=2ahukewjq8lla783eahxwbn0khbpicayqfjaaegqibrac&url=http%3a%2f%2fwww.flinders.edu.au%2fteaching_and_learning_files%2fdocuments%2faltc_fellowship%2520flinders%2520presentation_17%2520september%25202013.ppt&usg=aovvaw2_rizyblb7-p8a6oummy6e http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=2ahukewjq8lla783eahxwbn0khbpicayqfjaaegqibrac&url=http%3a%2f%2fwww.flinders.edu.au%2fteaching_and_learning_files%2fdocuments%2faltc_fellowship%2520flinders%2520presentation_17%2520september%25202013.ppt&usg=aovvaw2_rizyblb7-p8a6oummy6e reviewed article 236 and life satisfaction come from understanding and expressing our values, commitments and character.’110 initiatives such as the council and law deans of australia’s support and funding of good practice well-being guidelines provide valuable resources for law schools.111 so too does the development of a set of graduate attributes (the competencies, skills and knowledge of law that relate personal behaviour to professional practice),112 and initiatives to assist the transition to university and to help reduce law student psychological distress while at university. most of the work involves rethinking how the law curriculum is delivered, teaching strategies and the culture of law schools,113 and part of that process has been to develop support mechanisms that are especially related to resilience and changing the legal learning culture.114 110 ibid. 111 the australian council of law deans ‘promoting law student well-being good practice guidelines for law schools, revised (2014), online: https://cald.asn.au/resources. 112 the council of law deans reference national and international statements on competencies, skills and knowledge of law graduates and the descriptors located in the australian qualification framework for bachelor degree. an example includes the threshold learning outcome 6: selfmanagement. 113 field et al, above n105, 133; penelope watson and rachel field ‘promoting well-being and resilience at law school’ in sally kift et al (eds), excellence and innovation in legal education (lexisnexis, 2011). 114 rachel field and sally kift, ‘addressing the high levels of psychological distress in law students through intentional assessment and feedback design in first year law curriculum’ (2010 1 the international journal of first year in higher education 65, 67. reviewed article 237 law schools have also focused on a range of initiatives to deal with mental health and well-being of students.115 those initiatives essentially fall into three categories: a whole of law school approach; a focus on law school culture; and a focus on these issues within a specific course/unit of law degree studies. some approaches combine all three initiatives. as will be seen below, within this framework the pilot health-justice project at the university of canberra sought to utilise the latter: raising awareness about the importance of self-awareness and resilience as a skill, providing resilience-building strategies and providing support mechanisms through pastoral care, in the context of an academic unit which involved working in a health-justice legal clinic within the university environment. field argues that a whole of law school approach that looks structural systemic issues such as curriculum design, assessment and school culture is necessary.116 both field and kift consider the strategic change needed in australian legal education to properly address high level of ‘psychological distress’ of law students is particularly significant.117 they argue that intentionally designing the first-year curriculum design 115 for a comprehensive list of the initiatives see rachel field and james duffy above n 101. 116ibid. 117 rachel field, ‘promoting law student well being through the curriculum’ final report of: stimulating strategic change in legal education to address high levels of psychological distress in law students’, altc teaching fellowship, 2014; sally kift, ‘a decade of transition pedagogy: a quantum leap in conceptualizing the first year experience’ 2 herdsa review of higher education (2015) 2 51. reviewed article 238 to address and prevent psychological distress in law students is critical. firstly, they consider the problem of psychological distress in law students. secondly, they explore a range of theoretical and practical strategies to assist the implementation of good assessment and feedback practice in the first year of legal education.118 they also consider that academic assessment and feedback practice during first year can be harnessed to assist students to successfully transition to studying law at university.119 most law schools though tend to focus only on the first-year law student experience. they typically also develop transitional pedagogies with an integrated approach to student pastoral care to assist students to navigate their degrees, including through promoting student social connectedness.120 james cook university (jcu) in queensland adopted an approach directed towards alleviating psychological distress in first year law student program. jcu’s approach incorporated a variety of student support strategies to scaffold student capacity for dealing with their academic and personal development. strategies such as interactive teaching and learning settings, peer-assisted learning, regular email contact from first-year coordinators, an integrated approach to ancillary support services, and an effective mentor program 118 field et al, above n105, 65, 67. 119 ibid. 120 sally kift, ‘articulating a transition pedagogy to scaffold and to enhance the first year student learning experience in australian higher education: final report for altc senior fellowship program’ (august 2009) online: australian learning and teaching council, 16 <http://www.altcexchange.edu.au/system/files/kift%2c_sally_altc_senior_fellowship_report_sep _09.pdf> reviewed article 239 are all considered as integral to the success of jcu’s first-year law program. academics’ own commitment to caring for students as individuals is also an essential ingredient in effective pastoral care. 121 the approach effectively embeds pastoral care into the law curriculum.122 developing (student) support programs that work alongside the law degree are also seen as a way to (positively) influence school culture. for instance, at the university of new south wales (unsw), the law peer tutor program was designed to assist first year law students successfully transition into law school. the program is funded by the law school and the learning centre and focuses on offering academic support and a social dimension.123 monash university’s faculty of law have designated ‘university student experience manager’ roles and also provides a part-time psychologist to deal with students’ specific concerns. since 2009, mental health awareness, practical strategies designed to nurture resilience and coping behaviours incorporating neuroplasticity and mindfulness have also been included in the law school curriculum. 124 121 kate galloway, rachel bradshaw, neil dunbar and jamie fellows, ‘approaches to student support in the first year of law school’ (2011) legal education review 21 2. 122 ibid. 123 dominic fitzsimmons, simon kozlina and prue vines, ‘optimising the first year experience in law: the law peer tutor program at the university’ (2006) legal education review 6. 124 lester et al, above n 68, 3. the program includes a lecture delivered to first year law students at the beginning of the year. part 1 of the wellbeing and law series, which discuss mental health and wellbeing and specific implications for students. at the end of the first year is part 11 of the series: performance@law discussing students’ performance in light of recent developments in reviewed article 240 other examples of significant initiatives include offering specific units or a course of study within the law degree to assist law students. for example, within the administrative law unit at the queensland university of technology (qut) law school, the content and assessment of the unit were modified to include an interdisciplinary approach. this approach included a psychologist providing psychological support to law students through raising awareness of mental wellbeing; coping mechanisms for studying law; improving student connections with peers, academics and psychological support services. as part of the psychological support provided, students were required to complete a resilience plan which emphasised stress and time management techniques.125 yet despite these many initiatives there are still high levels of mental health issues amongst legal practitioners and law students.126 larcombe et al found that even a “good” law school experience – small classes, strong class connectedness with first year lectures may not correlate with lower stress.127 larcombe’s study indicated that overall satisfaction with a course designed to improve the students’ experience of law neuroplasticity – positive implications for learning, attention focus, attention density, resilience and graduate attributes are highlighted. 125 linda crowley-cyr, ‘promoting mental wellbeing of law students: breaking down stigma & building bridges with support services in the online learning environment’, (2014) qut law review, 14, 1 126 sarah whyte ‘tired, hungry and stressed out: what life is like for many australian lawyers’ abc news 1 february 2018 https://www.abc.net.au/news/2018-02-01/stressed-lawyers-are-suffering-from-eatingdisorders:-study/9375696. 127 larcombe et al, above n72. https://www.abc.net.au/news/2018-02-01/stressed-lawyers-are-suffering-from-eating-disorders:-study/9375696 https://www.abc.net.au/news/2018-02-01/stressed-lawyers-are-suffering-from-eating-disorders:-study/9375696 reviewed article 241 school and enhance their academic engagement, may in fact have limited impact on their level of wellbeing.128 c. the role of students, “stigma”, and adaptation while many australia law schools have invested significant resources in designing curricula and teaching programs that promote mental health in their law students,129 it is likely that the solution is not to be found entirely with law schools and academics. arguably students must also take a degree of personal responsibility and consider what they can do for themselves to alleviate the stress, anxiety and depression that can result from attending law school.130 one underlying issue here may be that law students are reluctant to seek and obtain professional assistance when they experience negative stressors that impact on their mental health.131 this could result from the stigma132 attached to sharing the experiences or symptoms of “not coping”, thereby increasing feelings of isolation and loneliness.133 further, there may be a fear that in disclosing information the students may be singled-out – that is, that any (potentially adverse) information they disclose 128 ibid. 129 field et al above n105, 1. 130 skead et al, above 65, 42-43, 81-90. 131 crowley-cyr see above n125. 132 ibid. a comprehensive definition of stigma at 134. 133 although these studies relate to law students, it is not to say that it wouldn’t apply to legal professionals; see also seligman above n5. reviewed article 242 may be received and/or (mis)used by the university.134 for instance, they may (reasonably) be concerned about any impact of any such disclosure on their academic legal education, and their future admission to, and acceptance within the legal profession.135 this stigma surrounding law students (and legal professionals) disclosing mental health issues, along with a lack of clarity surrounding the professional consequences also raises difficult questions for universities, regulatory bodies, future employees and employers. for law students, but also for legal professionals.136 the recent paradigm shift in understanding mental health in the general population is important here.137 scientific work on understanding mental health has moved away from the factors and mechanisms that determine vulnerability to mental health, to factors and mechanisms that stimulate individuals to remain healthy or recover quickly when facing adversities over the course of their lives.138 within this framework, resilience is considered an important component in individuals 134 crowley-cyr see above n125. 135 ibid. 136mary-jane ierodiaconou, roberta foster, ‘telling admissions: disclosing mental illness among lawyers’ (law institute of victoria jan/feb 2013 87 32) online: https://www.liv.asn.au/practiceresources/law-institute-journal/archived-issues/lij-jan-feb-2013/telling-admissions--disclosingmental-illness-amon>. 137 bart f rutten, caroline hammels, nicole geschwind, claudia menne-lothmann, eshan pishva, koen schruers, daniel louis van den hove, gunter kenis, marike wichers, ‘resilience in mental health: linking psychological and neurobiological perspectives’ (2013) acta psychiatrica scandinavica 128, 1. 138 ibid. https://www.liv.asn.au/practice-resources/law-institute-journal/archived-issues/lij-jan-feb-2013/telling-admissions--disclosing-mental-illness-amon https://www.liv.asn.au/practice-resources/law-institute-journal/archived-issues/lij-jan-feb-2013/telling-admissions--disclosing-mental-illness-amon https://www.liv.asn.au/practice-resources/law-institute-journal/archived-issues/lij-jan-feb-2013/telling-admissions--disclosing-mental-illness-amon reviewed article 243 successfully adapting to adversity throughout their lives.139 defining resilience is difficult, as there are different definitions and variable measurements which can preclude a proper analysis. 140 the concept commonly incorporates the ability of an individual to recover from difficult experiences with minimal long-term adverse effects in other words, the ‘ability to bounce back or cope successfully despite substantial adversity.’141 in this context, the importance of law students and legal professionals being resilient is important and has been identified as an important legal skill. for example, a recent inquiry into the future of legal work recognised the importance of resilience, not just for the legal profession, but also for law graduates.142 the inquiry identified seven skills or areas of practice which were essential both for the future practice of law practice-ready graduate. significantly, those skills included being resilient.143 it emphasised that resilience is a skill that can be learned, practiced and improved.144 139 ronald c kessler, katie a mclaughlin, jennifer g green, michael gruber, ‘childhood adversities and adult psychopathology in the who world mental health surveys’ (2010) the british journal of psychiatry 197, 5. 140 bart rutten see above n137. 141 heidi holtz, katherine heinze and cynda rushton ‘interprofessional’ definition of moral resilience’ (2017) journal of clinical nursing 488 at 489. 142 the law society of new south wales, the future of law and innovation in the profession (2017). 143 the law society of new south wales, the future of law and innovation in the profession (2017). the other skills included: practice skills (interpersonal and professional); business skills; project management skills; internationalisation and cross border practice of law and inter-disciplinary skills. 144 paula davis-laack, larry richard and david shearon, ‘four things resilient lawyers do differently’ law practice today, 14 june 2016. reviewed article 244 while the practice of law has always been inherently stressful, changes to the profession and legal service delivery will expose the legal profession to extra layers of change and stress.145 additionally, the advances in technology, economic pressures to revisit existing legal business models, and the globalisation of legal services, mean that the practice of law will be significantly different in the future to what it is now.146 this means that ‘resilience’ is not only important for the mental health and wellbeing of law students and lawyers, 147 but also that it will also be necessary to cope with ongoing changes to the nature of legal work. 148 in academia, one response to these challenges has been to ‘build resilience, namely resources to sustain well-being in the face of adversity.’149 many law schools acknowledging the link between mental health, wellness and resilience have students 145 ibid. 146 michael legg, ‘new skills for new lawyers: responding to technology and practice developments (1 january 2018). the future of australian legal education (thomson reuters 2018) unsw law research no. 18-51. 147 speech delivered by law council president of fiona mcleod ‘resilience and resourcefulness embracing change, 10 august 2017, online https://www.lawcouncil.asn.au/media/speeches/resilience-andresourcefulness-embracing-change-and-opportunity?platform=hootsuite. 148commission of inquiry, ‘future of law and innovation in the profession, (flip) report (2017) the law society of nsw, online: https://www.lawsociety.com.au/sites/default/files/2018-03/1272952.pdf. european commission, european political strategy, ‘the future of work: skills and resilience for a world of change’ (2016) european commission. the report doesn’t specifically refer to legal work but focuses on the future of work and importance of resilience to the significant pace of change in the workplace. 149 american bar association national task force on lawyer well-being, the path to lawyer wellbeing. https://www.lawcouncil.asn.au/media/speeches/resilience-and-resourcefulness-embracing-change-and-opportunity?platform=hootsuite https://www.lawcouncil.asn.au/media/speeches/resilience-and-resourcefulness-embracing-change-and-opportunity?platform=hootsuite https://www.lawsociety.com.au/sites/default/files/2018-03/1272952.pdf reviewed article 245 develop “resilience plans” and strategies to assist them in their academic studies and professional lives.150 below we explore a health-justice clinic pilot program developed at the university of canberra. the clinic was designed to improve student well-being and resilience through engaging students in an academic unit of study concurrent with the delivery of a legal service to clients while offering individual awareness-raising and pastoral care strategies. the clinic adopted an integrated approach as previously used by other law schools,151 but uniquely focused on developing student resilience and well-being by assessing individual characteristics and providing strategies in the context of a strong pastoral care program. it was significant too that the clinic was campus-based and located proximal to its health service partner. this on-site interdisciplinary program was offered within a unit available to llb and jd students and was designed in collaboration with a general practitioner, psychologist, lawyers and legal academics. iii. a health-justice clinic pilot case study before exploring the uc pilot case study, a brief overview of the origins and history of health-justice partnerships, both internationally and in australia. 150 crowley-cyr see above n125. 151 the legal advice clinic unit has two clinical programs – small business legal advice clinic and the health justice legal advice clinic. the pilot program focussed on the latter clinic, because of the geographic proximity between the university of canberra law school and the university of canberra medical and counselling service involved in the program. reviewed article 246 a. health-justice partnerships: a brief overview the first formal health-justice partnership (hjp)152 was established in the us in 1993 when dr barry zuckerman, head of paediatrics at the boston university school of medicine, employed a lawyer to work with him to treat his patients. zuckerman observed that he was repeatedly treating patients who lived in substandard housing and environments that caused significant and repeated health problems and sought legal assistance to address those poor living conditions and so prevent the ongoing health issues.153 the hjps that followed similarly provided a mechanism for health and legal professionals to work together to address the legal and health-related needs of their mutual patients/clients.154 such partnerships clearly offer significant benefits for the community, particularly where there is an intersection between the legal and ‘social determinants of health’ which often relate to systemic factors outside a patient’s control, including poverty, educational levels, unemployment and discrimination.155 in the context of a hjp, lawyers can often help remedy some of the problems causing health and others problems which may exacerbate health problems. importantly, hjps can also help foster a paradigm shift in which lawyers, academics, 152 they are also referred to as medico-legal partnerships or multi-disciplinary partnerships. 153 barry zuckerman, ‘why paediatricians need lawyers to keep children healthy’ (2004) 114 paediatrics, 224. 154 marnie von wilpert, ‘medico-legal partnerships in mississippi: a model to improve access to justice’ (2013) 82 supra, 199. 155 ibid. reviewed article 247 doctors, and ‘other healthcare professionals work together for a common good.’156 hjps offer innovative, effective, and holistic approach to delivering health and legal services.157 the number of hjps in australia has increased significantly over time. for example, while in 2012 there were only a handful of services self-identifying as hjps, in 2018, there were 48 services located in almost all states and territories in a range of settings, including hospitals, community health settings and aboriginal community health organisations;158 with uc’s health-justice clinic, being one of the first university-based hjps. curran’s work highlights how hjps improve overall outcomes for patients/clients.159 the value and importance of health-justice partnerships help explain why, as curran has observed ‘there are a number of hjps in australia now and they’re starting to pop up like mushrooms.160 156 robert pettignano, lisa bliss and sylvia caley ‘the health law partnership: a medical-legal partnership strategically designed to provide a coordinated approach to public health legal services, education, advocacy, evaluation, research, and scholarship’ (2014) 35 (1) journal of legal medicine 57-79, 78. 157 alexis anderson, lynn barenberg and paul r. tremblay, ‘professional ethics in interdisciplinary collaboratives: zeal, paternalism and mandated reporting’ (2007) 13 clinical law review 659-718, 660; liz curran ‘a research and evaluation report for the bendigo health-justice partnership – a partnerships between loddon campaspe community legal centre and bendigo community health service’ (abridged final report october 2016) 158 tessa boyd-caine, ‘health justice partnerships addressing determinants of health’ (12 september 2018) online: < https://www.healthjustice.org.au/2018/09/12/health-justice-partnerships-addressingdeterminants-of-health/>. 159 curran n 157. 160 kim lester ‘how lawyers improve health care’ (anu reporter volume 48 n 2) https://www.healthjustice.org.au/2018/09/12/health-justice-partnerships-addressing-determinants-of-health/ https://www.healthjustice.org.au/2018/09/12/health-justice-partnerships-addressing-determinants-of-health/ reviewed article 248 utilising law, medical and the students of other professions in hjps, and, other interdisciplinary approaches to education are becoming an increasingly common approach.161 collaboration between and cross-fertilising the disciplines of future professionals using such approaches can foster positive ‘professional attitudes toward collaborating across disciplines [and create] better future attorneys, physicians, nurses, social workers, public health practitioners, health care executives, and other professionals.’162 b. uc’s ‘health-justice clinic’ pilot: an overview the university of canberra (uc) has a small law school which focuses on developing law students’ practical skills and offers two law degree programs: a bachelor of laws (llb) and a postgraduate juris doctor (jd) program. approximately 83% of law students are enrolled in the llb and 17% in the jd program. the law student demographics are diverse at uc, but not unlike many other law schools. there are approximately 53% of students that are female; 47% that are male; 8% of students identify as indigenous; and 42% of students are ‘first generation’ university students (that is, the law student is the first member of their family to attend university).163 161 suzanne weise, ‘defining the role of clinical law students, medical-legal partnerships and probono lawyers’ (2018) 13 tennessee journal of law and policy 18. 162 pettignano n 156. 163 university of canberra, ‘background on university of canberra law students’ policy paper for course advisory committee’ (2012); judy allen and paula baron, ‘buttercup goes to law school: student wellbeing in stressed law schools’ (2004) 86 alternative law journal 29(6); council australian law deans ‘data regarding law school graduate numbers and outcomes’ fact sheet. november reviewed article 249 in june 2017 (winter semester) the authors established a pilot health-justice legal advice clinic (uch-jlac) at the university of canberra, australia. the uch-jlac operated as a collaboration between the school of law & justice, the university’s medical and counselling service, and a private law firm. it brought together health professionals (including doctors, psychologists and social workers), legal professionals (including academics, practising lawyers and volunteers) and later year high-achieving law students.164 the pilot operated within a clinical legal education context – that is, students were enrolled in a ‘legal advice clinic’ unit of study and worked under the supervision of practising lawyers to provide legal assistance and support services to clients who, in the main, were referred from the medical and counselling service. during orientation and for the duration of the program, students were, as a group, provided with resilience-building strategies and pastoral care with the support and guidance of psychologist. students were also particularly encouraged to privately consult with the psychologist if any issues raised during client consultations were in any way triggering 2017 201 online: https://cald.asn.au/wp-content/uploads/2017/11/factsheetlaw_students_in_australia.pdf. 164 the selection process for the pilot clinic involved interested students providing an expression of interest which included a brief summary of their reasons for wanting to participate in the program, together with a copy of their resume and academic transcript. students were then interviewed by the unit convenors who made a decision based on this information as well as their own subjective assessments as to which students would be a ‘good fit’ for the program. since the pilot clinic could only accommodate a very small number of students and because the convenors wanted to give the pilot clinic the best possible chance of success as well as providing an opportunity for those students most likely to benefit from participation, the student cohort selected for participation was inevitably biased towards high-achieving law students who were nearing the end of their studies. https://cald.asn.au/wp-content/uploads/2017/11/factsheet-law_students_in_australia.pdf https://cald.asn.au/wp-content/uploads/2017/11/factsheet-law_students_in_australia.pdf reviewed article 250 for them. students who successfully completed the components of the academic unit (which included completing a reflective journal and making a presentation in addition to attending the clinic and providing client legal services) were awarded 3 credit points towards their degree. after the completion of the unit, feedback was sought from students about their experience of the clinic, and in particular, their exposure to the resilience-building and emotional support provided within the context of the clinic. 165 their responses were overwhelmingly positive. in the context of the pilot, law students were offered an opportunity to appreciate the perspectives of other disciplines and therefore better understand how different disciplinary skills and knowledge might assist in creative problem-solving for the benefit of the client.166 at the same time, we considered that by having students focus on solving the problems of others, this work might ameliorate their own stress,167 including by offering them the satisfaction of helping others achieve good 165 ethics approval to survey and interview the students was obtained after students had completed the legal advice clinic unit. those students who agreed to provide feedback by online survey or through individual interviews with psychologist and unit convenor were required to completed a consent form. 166 doris bozin, allison ballard and vicki de prazer, ‘interdisciplinary collaboration to benefit ‘new’ and emerging lawyers’ in judith marychurch and advia sifris (eds) wellness for law making wellness core business (lexisnexis butterworths, 2020); charity scott, ‘transforming the future of public health law education through a faculty fellowship program’ (2016) 44, suppl, 1 the journal of law, medicine & ethics 6-17, 14; margaret martin barry, jon c. dubin and peter a. joy, ‘clinical education for this millennium: the third wave’ (2000) 7 (1) clinical law review 65-71. 167 alexis anderson, lynn barenberg and paul r. tremblay, ‘professional ethics in interdisciplinary collaboratives: zeal, paternalism and mandated reporting’ (2007) 13 clinical law review 659-718, 661. reviewed article 251 outcomes.168 yet the authors also recognised that the students might experience distress when dealing with clients, particularly clients who were likely to have multiple physical and mental health problems on account of being referred from the medical and counselling service. consequently, we considered that in the context of a clinical legal education setting, incorporating self-awareness raising and resiliencebuilding into the unit design would also be important. the authors also hoped that completing the unit would assist them at university and as future professionals. initially, the development of the pilot involved three main steps:  identifying, developing and designing a clinical legal education university program, with the assistance of a psychologist, to build resilience individual students during the semester by focusing on developing self-awareness and through their work helping clients in the legal clinic;  developing a collaborative approach and working as a team – law academics, legal practitioners and health practitioner staff working together for the benefit of the patient/client, while not breaching any ethical and professional obligations;  training the professionals – lawyers providing training and education to doctors, psychologists and social workers about identifying legal issues and 168 joshua d. rosenberg, ‘interpersonal dynamics: helping lawyers learn the skills, and the importance, of human relationships in the practice of law’ (2004) 58 university of miami law review, 1225, 1228. reviewed article 252 health professionals providing information to lawyers and students about recognising mental illness in a patient/client. the aims of the uch-jlac were three-fold and included: • providing legal practice experience to law students in a safe environment; and • assessing student resilience at the outset and to provide students with education, tools and ongoing pastoral care to develop their resilience throughout the course of the semester; and • improving access to justice for vulnerable people through the provision of an independent pro bono community legal service at the university. client/patients were “warm-referred” from the medical & counselling service (and also to dropin clients and clients referred from other sources). c. how did the programme work? law students enrolled in a subject169 in their law degree, which allowed them to participate in the uch-jlac which operated on one day each week with patients/clients referred by health professionals.170 the students’ clinical education induction and support program involved a series of seminars with a lawyer and a 169 either the legal advice clinic unit or a law internship unit. 170 the relevant health professionals were provided with an education session on ‘how to spot a legal issue’ prior to the commencement of the uch-jlac so that they were able to ‘warm refer’ appropriate patients/clients. reviewed article 253 psychologist, which were held prior to, and after the operation of the uch-jlac, on each clinic day. the induction and support program consisted of three components: induction, debriefing, and evaluation. the induction component involved meeting with a psychologist as a group and participating in a series of psychological resilience related exercises.171 the development of resilience was aligned to psych-education and reflection on character strengths, emotional challenges and strategies promoting the discovery of professional identity. the psychologist then facilitated a discussion and provided insight into the importance of resilience on a personal and professional level, before giving students an opportunity to discuss their individual psychological resilience test results and their reflections. during this initial program, the psychologist focused on resilience as a competency that students should build on at a personal and professional level and provided guidance about what resilience practices and strategies looked like, and how individual resilience could be developed.172 the second de-briefing session component had two aspects: student-lawyer interaction and student-psychologist interaction. during the student-lawyer interaction, students and lawyers met to discuss the days’ cases with an emphasis on the importance of 171 these exercises were made available to students were made available to students on the day of the induction. 172 the psychologist also completed the questionnaires and opened the session by discussing the results of her profile with the group. this was done to make the students feel comfortable about sharing their results with the group. reviewed article 254 providing pro bono services to disadvantaged members of the community. the idea that they were doing important, “good” and “real” work was also reinforced.173 this provided a context for students to think about their role as future lawyers and legal practitioners, as in some instances there was no legal assistance that the uch-lja was able to provide to clients.174 the other part of the session involved students discussing with the psychologist their feelings, values and responses in relation to the client interview work. the students acknowledged that many of the patients/clients had challenging life circumstances and complex mental and/or physical health issues; this often meant containing the interview very difficult. students indicated that observing the strategies used by the different uch-jlac lawyers, including to build rapport and clarify the client’s legal issues, was invaluable. the psychologist sessions encouraged the law students to be more self-aware and reflect on their experience of the case as a resilience-building habit, supported by debriefing as necessary. these sessions also emphasised the evidence around life-style 173 maren robinson, ‘the benefits of volunteerism in the law’ (1998) 42(3) boston bar journal 8. 174 mark heekin, ‘implementing psychological resilience training in law incubators, (2015) experiential learning 286; deborah l rhode, ‘rethinking the public in lawyers’ public service: pro bono, strategic philanthropy and the bottom line, fordham l review 1435-1437. a wide range of evidence suggest that selfless action is good for the self; it enhances satisfaction, health and selfesteem. it was important to emphasis in these de-brief sessions to students how important the work they were doing was to the community. reviewed article 255 choices as very significant in the building and maintenance of resilience, e.g. good sleep, exercise, healthy diet, low alcohol consumption and close relationships.175 the third evaluation176 and reflection component of the program was a discussion between the students, lawyers and psychologist of the legal clinical experience. students, with guidance from the psychologist, discussed strategies and practices they might utilize to build competency in resilience on both a personal and professional level. by evaluating individual competencies in this way, it was considered that personal and professional confidence, good communication skills and reflective practice would be promoted, in turn leading to the further development and maintenance of resilience. while encouraging students and early career lawyers to speak-up about what they don’t understand or can’t do may be an anathema to the culture of the profession, this and other strategies may be essential in reducing mental health issues and promoting resilience. 175 mary c davis, ‘building emotional resilience to promote health’ (2009) 3 (1_suppl) american journal of lifestyle medicine 60s-63s. 176 the evaluation of the program was done as a group-discussion with the students, lawyers and psychologist, in terms of what students resilience-building strategies that they would use in the future. reviewed article 256 feedback provided by students at the conclusion of the program through face-to-face interviews was positive.177 many students reported that they enjoyed having a psychologist included in the program; that it provided pastoral care, along with resilience-building strategies. they also reported that their overall confidence improved. the authors can only make general comments as to why this approach increased their confidence. it is difficult to surmise why students’ confidence improved, and whether it was from the assistance from a psychologist who provided a strong pastoral care program along with resilience-building strategies, the development of their practical legal skills in a legal clinic setting; assisting in delivering a pro-bono community legal service to clients; or a combination of all these factors. the authors plan to conduct further research as to why this approach increased students’ confidence by developing a base-line at the beginning, during and after the program. additionally, providing students with specific questions about each of the components within the program, should provide more valuable information about the program. furthermore, this pilot was extremely resource intensive. the authors will expand the program to make it available to more students by only including the psychologist in 177 ideally students should have been interviewed at the beginning and during the program. this information would have provided a base-line as to their expectations, skill and knowledge development. reviewed article 257 group-discussions on resilience building; (however, if they request it, students would be able to have individual sessions); students completing instruments at beginning and end of program to develop a base-line in relation to their wellness; and a focus on building confidence through understanding the role of a lawyer. conclusion improving resilience is an important component of ensuring the mental health and wellbeing of law students, both in the context of their academic studies and as future legal professionals. building greater resilience is also one way of assisting legal professionals to cope with the significant challenges they face on account of the transformation of legal work. the pilot health-justice clinic at the university of canberra focused on providing practical legal experience for a small select cohort of law students, while simultaneously offering tools to develop their resilience and understanding of “self”, including through a comprehensive orientation program and a strong pastoral care component. the clinic also provided the students with an opportunity to work with, and gain insight into the work of different professions and to develop inter-disciplinary networks. the collaboration between the clinic’s psychologist, who focused on providing resilience-building strategies tailored to individual personalities together with a strong pastoral care component, and the clinic’s academics/lawyers who provided supervised practical legal experience to allow the students to help deliver a pro-bono community legal service, did assist the students. offering law students a legal clinical experience with a strong pastoral care reviewed article 258 component and a focus on resilience-building strategies is one possible piece of the mental health and wellbeing in the law jigsaw puzzle. allowing more students, and a greater range of students, the chance to participate in similar interdisciplinary clinical programs offers a novel approach to improving law student resilience during their academic studies as well as preparing them to stay healthy as they move into legal practice. 427 an examination of the challenges, successes and setbacks for clinical legal education in eastern europe dubravka aksamovic1 and philip genty2 i. introduction the authors first met in 2000, and have collaborated in conferences, workshops, and other projects since then� we also represent two sides of an international exchange that has frequently occurred in the past 15 years: a european law teacher who attends training sessions, networks with colleagues from other european universities, learns about american models of clinical education, and possibly receives some outside funding; and an american law teacher who is graciously hosted by europeans, promotes american models of clinical education, and, one hopes, observes, listens and learns about the european system� we are also experienced teachers within our own universities and teach both clinics and more doctrinal courses� finally we are friends and can be honest with each other� after more than 10 years of working together, we wanted to take stock of the collaboration between american and european academics on issues of clinical education� we wanted to take a close look at what has happened in central and eastern europe since the first “american invasion” of u�s� consultants and funding: what clinical programs were developed? which ones survived after the consultants and funding left? why did some programs survive and prosper, while others disappeared? what do the surviving models look like? we also wanted to ask a series of more subjective and potentially sensitive questions: was the american influence ultimately helpful and productive? to the extent that it was not helpful, what have we learned about improving such cross-cultural international collaborations in the future? have european law schools copied us models of clinical legal education, or have they developed 1 professor, university j�j�strossmayera, faculty of law, commercial and company law, osijek, croatia� 2 everett b� birch clinical professor in professional responsibility, columbia law school� 428 international journal of clinical legal education issue 19 their own models? in the following sections we first discuss the history of clinical legal education in central and eastern europe� we then focus on croatia and olomouc, czech republic, two examples of the ambitious but uneven development of clinical programs in central and eastern europe� we next examine the experiences of clinical programs in countries of cee and some of the challenges these programs have faced in achieving sustainability� we then use a comparison between the european and u�s� clinical program models as a lens for analyzing the experiences of the european programs and assessing the value of collaboration between european and u�s� clinical teachers� finally, we offer some thoughts about the future of clinical legal education in central and eastern europe� ii. history and overview of clinical legal education (cle) in central and eastern european (cee) countries clinical legal education in central and eastern european countries emerged in the second half of 1990’s� it first started on an experimental basis but in time it became an integral part of higher education programs in a number of these countries�3 according to different sources, in only a few years, from 1990 until 1995, more than 100 clinical programs were established in the countries of cee, including many in russia4� clinical legal education was recognized by law schools in the region as a teaching and learning method that actually prepared students to practice law� further, the clinical method of learning – learning by doing – was a “breath of fresh air” in the otherwise typical atmosphere of the “classical” classroom lecture methods applied in most law schools in eastern and western europe5� as discussed below, however, the development of cle in europe has been far from uniform� there are significant differences between cee and western europe, as well as among the countries of cee� a. east v. west: cle’s growth in cee countries and its failure to take hold in western europe while central and eastern european countries accepted cle with lots of enthusiasm, western european countries were resistant to innovations involving the implementation of cle6� only a few clinical law programs have been established so far in western european countries, notably in 3 for a comprehensive discussion of the history of cle in europe, see edwin rekosh, constructing public interest law: transnational collaboration and exchange in central and eastern europe, 13 ucla j� int’l l� & for� aff� 55, 83-92 (2008)� 4 lusine hovhannisian, clinical legal education and the bologna process, pili papers, no� 2, december 2006�, pp�14; richard wilson, western europe: last holdout in the worldwide acceptance of clinical legal education, 10 german law journal 825 (2009)� 5 wilson, supra note 2, at 825-28� 6 id� at 828� 429 the uk7� (this is quite understandable due to the fact that it is a common law country�) besides the uk, successful clinical programs have been established in spain, the netherlands8 and one of the most developed is in norway9� in france10, germany11 and italy12 cle programs exist in only a few law schools� this situation provokes the question: why has cle been so well accepted in the european east and not so well in the european west? we want to suggest a few reasons� first, all central and eastern european countries faced the fall of communism, which resulted in a high level of incentives to change things� in this context, and as said before, cle was a “breath of fresh air” in the otherwise typical atmosphere of the “classical” classroom lecture methods applied in most law schools in central and eastern europe� 7 see james marson, adam wilson, & mark van hoorebeek the necessity of clinical legal education in university law schools: a uk perspective, 7 international journal of clinical legal education, 29-43 (2005); richard grimes, legal literacy, community empowerment and law schools – some lessons from a working model in the uk, 37 the law teacher 273 (2003); julian webb, inventing the good: a prospectus for clinical education and the teaching of legal ethics in england, 30 the law teacher 270 (1996); nigel duncan, why legal skills – whither legal education?, 25 the law teacher 142 (1991); see also model standards for live-client clinics a clinical legal education organisation (cleo)* document (updated 2007) (available at: http://78�158�56�101/archive/law/files/downloads/38/713�83471086�standards�rtf); moving on: new initiatives, new resources: report on the 2002 cleo conference (available at: http://www�ukcle�ac�uk/resources/teaching-and-learning-practices/2002conf/) 8 see http://www�uu�nl/faculty/leg/en/organisation/schools/schooloflaw/organisation/departments/ studieeninformatiecentrummensenrechten/cp/pages/default�aspx?refer=/legalclinic 9 see jon t� johnsen, nordic legal aid, 5 md� j�contemp� legal issues 301, 328 (1994); see also jon t� johnsen, juss-buss and clinical legal education (university of oslo, 1991)� 10 see, e.g�, http://master�sciences-po�fr/droit/en/content/access-justice (law clinic of the sciences po paris law school); http://www�unicaen�fr/recherche/mrsh/crdfed (fundamental rights law clinic of the university of caen); and http://ufr-dsp�u-paris10�fr/ufr-de-droit-et-science-politique-dsp-/etudiants/euclid-386003�kjsp?stna v=&rubnav=&rh=1314308994710 (euclid law clinic of the university paris ouest nanterre)� 11 few legal clinics exist in germany, at least in part due to the rigidity of germany’s higher education laws� see andreas bücker & william a� woodruff, the bologna process and german legal education: developing professional competence through clinical experiences, 9 german law journal 575, 611-13 (2008) (discussing rigidity of german law of higher education as an impediment to establishing clinics in german law faculties)� among those universities that do have clinics are the hochschule wismar, which has established a live client clinic for master degree students, see id�; the heinrich-heine-university düsseldorf faculty of law, which offers a legal advice clinic, see http://www�jura�hhu�de/en/hilfe�html; and humboldt university, which has a human rights clinic� see http://baer�rewi�hu-berlin�de/eng/humboldt-law-clinic� 12 in february 2012, the university of brescia organized an international conference on clinical legal education in europe� see http://www�lider-lab�sssup�it/lider/attachments/article/25/locandinaclinicsdef�pdf� four italian legal clinics presented their work and discussed their models of clinical legal education� those are the legal clinics from turin, rome, florence, and brescia (the host of the conference)� an examination of the challenges, successes and setbacks for clinical legal education in eastern europe 430 international journal of clinical legal education issue 20 second, all central and eastern european markets went through transition� so there was a strong demand from market forces for reforms and legal reforms in particular� third, the transformation, from a non-market to a market economy model, led to an increased need for free legal aid� a number of central and eastern european countries faced massive bankruptcies, lots of people were jobless, and some countries, like croatia, were struck by war� due to all of these factors, there was an increased demand to help the people in need, but the inherited model of free legal aid could not satisfy all of these needs� civil societies institutions, who are currently also important free legal aid providers in cee countries only started to develop at the time� and finally, there was a whole new generation of law students who wanted change� they demanded more from legal education than faculties had previously provided for them� b. different models of cle in cee countries in addition to the different developments of cle in cee and western europe, there have been significant variations among the countries of cee� despite the fact that cle appeared at the about same time throughout cee, it did not follow the same pattern� what we notice, while exploring developments in cle in different central and eastern european countries are peculiarities of cle� each country, and even the law schools within one country, have developed different models of cle� while some countries and law schools unanimously chose the model of live client clinics, others accepted simulation clinics or the placement model (“externships”)� this was surprising if we have in mind the fact that cle in cee was shaped and modeled with the help or assistance of no more than three u�s� partners, pilnet (formerly pili), the soros foundation, and aba ceeli13, and all of these funders specifically promoted the live client model� the same phenomenon occurred in the context of clinical subject matter� different types of clinics were established: constitutional law clinics, criminal law clinics, environmental clinics, business law etc� however, this is perhaps less surprising because the u�s� funders did not focus on any particular subject matter in the models they introduced� this leads to several questions: given that these clinical programs were all based on similar u�s� models and benefitted from the same training and capacity-building efforts, why was a uniform model of cle not accepted or developed in cee? is this diversity of models good or bad for cle in cee countries? what are the reasons for this diversity of cle models? there are several possible answers: a) the design of clinical programs often reflected the particular persons who conceived and developed a particular program� it was usually a particular person within the law school, not the law school as an institution, who created the clinical program� b) clinical design was often regionally or geographically related� different central and eastern european countries were burdened with different problems, and these were reflected in clinical activities� for example, while some countries had an increased need for labor law clinics, others had a need for refugee clinics� 13 see leah wortham, aiding clinical legal education abroad: what can be gained and the learning curve on how to do so effectively, 12 clinical l�rev� 601 (2006)� 431 c) there was also a lack of systematic approaches and strategies towards a more uniform concept of cle in cee� even clinics within a single country did not cooperate on curricular development or clinical pedagogy or other aspects of clinic design� so the clinical movement in cee in the 1990’s can be, to some extent, characterized as an ad hoc approach� as discussed below, this might be the reason why a number of clinical programs failed within a short time� iii. specific examples: croatia and olomouc, czech republic to provide illustrations of some of the general descriptions and conclusions presented above, we offer examples from croatia and the czech republic� these are two countries with which we have experience, the european as a direct faculty participant and the american as an visitor and observer� a. the croatian example: four schools, four different experiences cle in croatia has a short tradition� it started later than in other parts of cee due to the fact that the country was at war� therefore transition came somewhat later� the first croatian clinical program started at the faculty of law in rijeka in 2002, following by the legal clinic established at the faculties of law in osijek in 2003 and in split in 2008� in 2010, a live client clinic was established at the faculty of law in zagreb� the establishment of a legal clinic at the country’s oldest university was actually a major breakthrough for the future of cle in croatia14� clinical programs in croatia were, from the very beginning, recognized and well accepted by legal academics as a new teaching methodology which can enchance legal education� in a short time clinical programs became a part of the mandatory curricula at all four law schools, although clinical programs are carried out in each of the law schools in different ways� the legal clinic established at the faculty of law in zagreb is the country’s only live client clinic� other law schools apply the models of either simulation or placements� despite intensive clinical activitiy and affirmation of clinical programs as an accepted teaching methodology, clinical development in croatia has not been without problems, some examples of which are particularly visible in the smaller law schools which are not located in the capital city� these problems are similar to those mentioned above� they can be summarized as follows: a) staffing problems smaller law schools have a small staffing capacity� the situation is much better in the capital city� b) problems with practicing lawyers in smaller cities 14 see barbara preložnjak, clinical legal education in croatia – from providing legal assistance to the poor to the practical education of students, 10th international journal of clinical legal education conference, durham, uk, july 2012� (unpublished paper; english-language abstract available at http://www�numyspace�co�uk/~unn_ mlif1/school_of_law/ijcle/abstracts�html); see also: http://klinika�pravo�unizg�hr/ (in croatian)� an examination of the challenges, successes and setbacks for clinical legal education in eastern europe 432 international journal of clinical legal education issue 20 in many cee countries, including croatia, clinics must hire private lawyers to supervise law students in the legal work they perform, because law professors are often not permitted to be practing lawyers� finding and keeping involved a practicing lawyer on a stable basis is quite hard in smaller and poorer environments� besides that, lawyers have poor or no knowledge of clinical pedagogy and methodology, which creates additional problems� c) ad hoc approach to organizing cle clinical activity in croatian law faculties depends too much on one person� faculties are not involved enough to take over the responsibility and incentive for clinical development� d) lack of teaching credit for clinical faculty since clinical programs are new, clinical teachers often get no credit for performing cle� it is purely voluntarily engagement, which must be performed in addition to all of the other demands (heavy teaching responsibilities, ph�d� studies, administrative duties) placed upon the faculty members who teach clinics� e) legislative restrictions until 2008, croatia had an additional problem� it was not clear what kind of legal aid clinics could perform� this issue was clarified to some extent in 2008, when the code on free legal aid15 was enacted� b. olomouc, czech republic – the flight of the phoenix the first live client legal clinic in central europe was at palacký university, olomouc, czech republic� it was funded by the ford foundation in 1995-199716� however, this clinic was also one of the early failures, ending as soon as the outside funding stopped� edwin rekosh explains some of the reasons for this: “arguably, those instances of failure were caused by some of the phenomena implicit in the pure export model; they were not sufficiently adapted to local conditions by locallybased champions working (when helpful) in long-term collaborative relationships with foreign partners�”17 rekosh goes on to discuss the demise of the olomouc clinic: certainly, this was the case with the initial experiment at palacky university in the czech republic supported by the ford foundation� the initial local champion of the project, who had been dean of the law school at the time, passed away� the clinic director that his successor had appointed to run the project, a local bar advocate, treated her position supervising the students in the “live-client” clinic as an ordinary job and had no vision for or interest in what the clinic might become � � � � the foreign partner in the project interpreted the deficiencies of the start-up initiative as stemming from a lack of commitment by the local partner to core public interest values� 18 rekosh concludes that these problems were not limited to olomouc: “no doubt many of 15 official journal no� 62/08 and 81/11 16 see rekosh, supra note 3, at 87 n� 98� 17 id� at 88-89� 18 id� at 89, n�102� 433 the initial clinical projects supported by foreign donors were seen even more cynically by local actors as vehicles for bringing in much needed financing to resource-strapped state universities�”19 and yet, after this initial failure, the olomouc clinic has since come back to life stronger than ever, with several different clinics, many of which are live client models, as well as an introductory lawyering skills simulation course, classes on legal ethics, and an energetic and innovative teaching staff who participate actively in international conferences�20 iv. evaluating the experiences of clinical programs in cee: common problems which different clinical programs in cee countries have faced the experiences in croatia and the czech republic provide examples of some of the challenges facing cle in cee, as well as the possibilities for overcoming these to develop strong and sustainable programs� evaluated in general, and from a distance in time of some 15 years, the cle programs that started in cee in the 1990’s were a great success� this is especially true in poland, which is the “gold standard” for european clinical education programs� law clinics exist in law faculties throughout poland, and clinical faculty meet in national and regional conferences� in addition, clinical educators in poland have developed an extensive set of materials to support cle�21 but the success has been uneven� the authors have attended many clinical teaching conferences in cee and have observed that after a successful beginning, a number of clinics faced failure within a short period of time� on the other hand, a number of other clinics, established at the same time and in similar circumstances, experienced great success� this situation again raised the question: why do some clinics tend to be very successful and other clinics fail? the exact reasons are unknown because there is no study which tracks the various clinics that were started in the 1990’s and shows how many of these clinics have been closed� but most of the available information suggests the following problems which are common to many clinics which faced failure: 19 id� 20 to take one example – in 2011, law teachers from six continents gathered in valencia, spain, for the global alliance for justice education worldwide conference� at that conference, four of the sessions were conducted by members of the faculty at palacký university� this only underscores the leadership position of this institution and faculty in international legal education reform� 21 for a description of law clinics in poland, see joanna sliwa, report on the legal education in poland (pilnet 2010), 23-25, available at: http://www�pilnet�org/component/docman/doc_download/45-legal-education-inpoland-building-institutional-will-for�html� see also, rekosh, supra note 3, at 90-92� an examination of the challenges, successes and setbacks for clinical legal education in eastern europe 434 international journal of clinical legal education issue 20 a) funding loss of outside funding frequently resulted in decreased clinical activities� many law faculties were not prepared to take over funding responsibilities once foreign funders withdrew� b) staffing problems it is very typical for cee law schools to have too many students compared to the number of teaching staff� this also caused problems in the context of clinical education� there were often too few university teachers who could participate in student supervision and assessment� c) legislative barriers within the universites of cee there is a wide lack of support and incentives to make the necessary legislative changes to the educational process that would create a system in which cle is a presumed component of the law curriculum� v. comparisons between the european and u.s. experiences in examining this uneven history of cle in europe, it is useful to compare the european programs with those in the u�s�22 as noted above, start-up funding for the european programs was provided by u�s� donor organizations, and much of the technical support and training was provided by u�s� educators� the u�s� has a 40 year history of cle, and many of the european programs were based on successful u�s� models� why, then, have the results been so mixed? this question prompted an engaging and enlightening dialogue between the authors� we have observed that although the bologna process is moving the european system of law and legal education closer to that in the u�s�23, the fundamental historical and cultural differences between the civil and common law systems continue to have an effect�24 in europe, cle – and interactive education more generally – has to be incorporated into the prevailing, traditional, lecture-based doctrinal model of education� the challenge is not in adding clinics formally to this traditional curriculum� in most cee countries, clinics are, in fact, part of the curriculum, because the relevant governing educational body would not otherwise allow them to be taught� in croatia, for example, if a faculty wants to teach a legal clinic, the faculty must write a detailed proposal for the clinical course and seek formal approval from the governing body� this is true of other cee countries as well, because public universities are the prevailing model� 22 for general comparative discussions, see leah wortham, aiding clinical legal education abroad: what can be gained and the learning curve on how to do so effectively, supra note 13; lee dexter schnasi, globalizing: clinical legal education: successful under-developed country experiences, 6 t�m� cooley j�prac� & clinical l� 129 (2003); frank s� bloch, access to justice and the global clinical movement, 28 j�l�& pol’y 111 (2008)� 23 see laurel s� terry, the bologna process and its implications for u.s. legal education, 57 journal of legal education 237 (2007)� 24 for a discussion of the differences between the civil and common law systems and the effects of these differences on cle, see philip m� genty, overcoming cultural blindness in international clinical collaboration: the divide between civil and common law cultures and its implications for clinical education, 15 clinical l� rev� 131 (fall 2008)� 435 therefore incorporating clinics within the cee curriculum is not the primary obstacle to be overcome; rather the challenge to successful implementation of cle in the region is that clinics lack respect from the majority of law professors, who are traditional in their views and resistant to change� they generally oppose curricular reform, particularly with respect to educational content and teaching styles� a related challenge in europe is an underdeveloped clinical pedagogy and the lack of a clear curricular design� students often do not receive academic credit for their work, and clinical seminars frequently operate without a set curriculum, syllabus, or teaching materials specifically designed for clinical courses� it will take time to develop clinical pedagogy in europe� it appears that only poland has managed to do that to some extent� one area in which the u�s� has a clear advantage over most european countries is that the u�s� curriculum is more flexible� because the courses in the u�s� common law system are not typically compulsory after the first year, course offerings and teaching methods tend to be fluid and varied� thus, there is room in the curriculum for clinical courses, offered for many credits (½ of a student’s total semester credits is common), with an extensive syllabus, ambitious curriculum, and well-developed materials, sometimes including textbooks specifically designed for these programs� the american clinical course is therefore a complete “package” of substance, skills, values, and experiences� this is not generally true of european clinics, because the time and space for clinics needs to be “borrowed” from other parts of a set, formal curriculum� european students therefore get only part of this educational “package” in the clinics they are able to take� there are at least six, less fundamental, differences between the european and u�s� experiences with cle� first, there are still relatively few live client clinics in european universities25� is it important that clinics have live clients, or are interactive simulations and project-based clinics equally valuable in the european educational context? much of this is a function of sheer numbers of students� even in universities with live client clinics, demand tends to exceed available opportunities even more than in the u�s� because of larger class sizes� for example, in osijek, croatia, a small school, three instructors in one academic department are responsible for giving lectures, examinations, etc� to 1,200 4th year students� second, the legal assistance provided to clients in european clinics tends to be shorter term than in the u�s�, with a focus on the one-time giving of advice or drafting of legal pleadings or other documents� in this way european clinics resemble some limited scope “unbundled” pro bono programs in the u�s� one practical reason for this is the length of court proceedings� even the simplest cases usually last longer than an academic year, and students do not want to continue their involvement beyond the academic year� third, among the most interesting differences we examined is the focus of the clinics in the two systems� european clinics tend to focus less than u�s� clinics on the dynamics of the attorneyclient relationship, including interviewing and counseling skills and developing a relationship of empathy with the client� the focus in european clinics might be described as being more on “solving the case” than “understanding the client�” 25 there are no reliable data about the number of legal clinics in europe in general, and in particular about the breakdown among types of clinics, e�g� the number of live client clinics� perhaps this situation will improve with the establishment of encle ( european network for clinical legal education)� see: http://www�uc3m�es/ portal/page/portal/instituto_derechos_humanos/sala_prensa/comunicados_de_prensa/encle�pdf� an examination of the challenges, successes and setbacks for clinical legal education in eastern europe 436 international journal of clinical legal education issue 20 solving cases rather than getting to know the client is not specific to the clinics, however – it is the typical approach of practicing european lawyers� in other words the clinics are reflecting actual practice, which is arguably what they should be doing� this observation has significant implications for cross-cultural work� many of the clinical training sessions provided by pilnet, aba-ceeli, and other u�s� organizations for european law teachers have focused extensively on teaching interviewing and counseling skills on the theory that these skills are essential to effective lawyering� however, it may be that these skills are relatively unimportant in european law practice and that a focus on these skills in clinical development work is therefore misplaced� the european author’s own experiences appear to support this conclusion; she noted that she had found this aspect of the training sessions she had attended relatively unhelpful� fourth, related to this lack of focus on the attorney-client relationship, education in ethical issues is not typically part of the european clinical curriculum (but it is not part of the non-clinical curriculum either)� where ethics courses exist, they tend to be taught in a code-centered lecture format, rather than the interactive problem-based model that is more common in the u�s� palacký university in olomouc, czech republic is an exception, because it offers an elective, interactive ethics course, which is taught by one of the clinical faculty members� this course is beginning to be replicated in other czech universities� fifth, in some european countries, especially those in which professors are not allowed to practice law, clinics must contract with practitioners for court representation of clients� there may be an educational gap for the students if the practitioners are not trained in clinical pedagogy and included in faculty discussions of such pedagogy� sixth, european countries do not generally allow for student practice in courts and administrative proceedings� (the republic of georgia is one exception to this�) related to this, it is not clear to what extent attorney-client confidentiality applies to law students who meet with clients in law school clinical programs� all of these differences need to be taken into account in structuring effective collaboration between european and u�s� colleagues� as discussed below, future collaborations should focus more on supporting the new european models of clinical education rather than replicating u�s� models� vi. reflections about the future of clinical legal education in central and eastern europe after the first wave of funding and consultants ended, many european clinical programs did not survive, suggesting that clinical education might not be sustainable in the long-run without outside funding� however, the good news is that the support provided in the 1990’s and 2000’s by outside organizations (ford foundation, aba, osi, pilnet, etc�) planted seeds of “human capital” – the law teachers and students who attended the conferences and workshops have become an energetic new generation of clinical educators� in addition, bologna and other european educational reforms have stimulated the introduction of graduate law programs� these graduate students – especially ph�d� students – are often themselves products of the new clinical education programs, and they have taken on important teaching roles within the clinical programs� this “human capital” may ultimately be a more important factor than outside funding in achieving sustainability for clinical 437 education in europe� however, in thinking about the future it is important to distinguish among three main goals of cle and tensions among them� clinical scholars typically identify the following goals: creating social change by giving disadvantaged groups access to legal services; making experiential courses mandatory so that all students are better prepared for the profession they will be entering; and providing students with a “live client” experience� it is hard, if not impossible, to do all three of these things in existing european systems, and it may not be realistic to think that all three goals can be achieved� live client clinics require a lot of resources, so they will have to be limited to a small number of students� it is probably more realistic to offer simulation clinics, which can be provided to larger number of students� to the extent that live client opportunities are offered, the best way to give the largest number of students this opportunity is to give them short-term cases involving limited scope representation, e�g� advice-only or drafting of pleadings� but these cases will probably not do much to create social change, because social change cases require full representation over an extended period of time� so it is important for law faculties to be realistic and honest about their goals� this may require them to choose among possible objectives� contrary to conventional wisdom, the major obstacles to sustainability of clinical programs may not be a lack of funding� it is, of course, easier when one has funding, and many schools failed to pick up responsibility for funding clinics when outside funding dried up� but since clinics must, for the reasons discussed above, be formally approved and integrated into the law school curriculum, they have space and equipment� the bigger challenge is maintaining the necessary “human capital�” in the european system of legal education, contrary to the u�s�, clinical faculty are burdened by the pressure to achieve academic advancement in a short period of time – ll�m, ph�d, all within 6 years� in addition, early in their careers, european law teachers have substantial departmental responsibilities� they carry significant substantive course teaching loads, administrative duties, and responsibilities for assisting and supporting senior colleagues� (in addition, these senior professors will influence the promotion prospects of their junior colleagues�) finally, they usually do not receive any credit for teaching clinics� so, european law teachers who would otherwise like to teach clinics are often faced with the need to give up activities – such as clinical teaching – which are not important for academic advancement� that is probably one of the reasons why a number of clinics failed in central and eastern europe� an examination of the challenges, successes and setbacks for clinical legal education in eastern europe 438 international journal of clinical legal education issue 20 vii. conclusion what does the future hold? what are the prospects for clinical legal education in central and eastern europe? these are the questions to which, it seems, there are no exact answers� cle, in the last 15 or 20 years spread across central and eastern europe� it “flourishes” in some countries, less in some other� but the fact is that the concept of cle is not unknown any more to european legal educators� there are four possible scenarios for the future of cle in europe: 1� clinics will continue to spread and will be fully accepted and accredited law school programs in all of europe not just in cee� 2� most of the clinics will fail in time because it is not a traditional or typical teaching methodology in europe� 3� most clinics will fail because clinical education is not accepted as a teaching methodology on the eu level� 4� it is not predictable how clinical programs will continue in the future� which one of these scenarios we will witness in the future, in our opinion, depends a great deal on western europe, which to some extent has always influenced legislative and educational processes in cee� this influence is even stronger now, when most of cee countries are becoming part of the eu� what we can see at the moment is that cle is beeing more accepted in western europe too� proof for that is the recent initiative coming from italy to establish the european network for clinical legal education ( encle)26 which will serve as an umbrella organization and as a support to cle throughout europe� this might be the key that will widely open the door to european clinical education� u�s� educators can also continue to contribute to these efforts, but in doing so they must recognize that europe will develop its own cle models, probably to some extent distinct from those in the u�s�, and presumably more appropriate to the needs of european law faculties and civil societies� the best use of u�s� expertise may therefore be to faciliate the creation of opportunites – through conferences and websites – for european clinical teachers to exchange experiences, information, and ideas, and to engage in ongoing conversations with one another� 26 about encle see http://www�uc3m�es/portal/page/portal/instituto_derechos_humanos/sala_prensa/ comunicados_de_prensa/encle�pdf; http://www�iuctorino�it/content/european-network-clinical-legal-education reviewed article: teaching and learning in clinic private lives: confronting the inherent difficulties of reflective writing in clinical legal education. rachel spencer university of south australia rachel.spencer@unisa.edu.au abstract the use of reflective writing has long been recognised as an important component of clinical legal education pedagogy. however, current literature about reflective writing exposes a gap about student perceptions of reflective writing. this article provides an analysis of the results of formal qualitative research that was conducted into student perceptions of reflective writing in the clinical legal education context. the research was designed to investigate whether students perceived any benefit from reflective writing and what difficulties they actually encountered in the process of writing which is particularly different to other forms of academic assessment. the article explores the exact nature of the difficulties experienced by students and suggests an improved pedagogy of reflective writing in the clinical legal education context. the article offers several suggestions and recommendations as to how this might be achieved. key words: pedagogy; reflective writing pedagogy; clinical legal education; reflection; teaching and learning framework mailto:rachel.spencer@unisa.edu.au part i: introduction and background the use of reflective writing has long been recognised as an important component of clinical legal education pedagogy. this article concludes a trilogy of work based on my research into reflective writing pedagogy.1 readers are referred to the first article for a comprehensive literature review of the pedagogy of reflective learning and reflective writing, and also for a comprehensive overview of the assessment scheme in the course which i teach.2 the purpose of this final article in this series is to consider and respond to specific questions that were raised by my earlier research.3 in particular, this article examines the various levels of difficulty perceived by law students in relation to reflective writing. based on the responses of my own students, i have attempted to disclose the factors that law students articulate as difficulties in the reflective writing process. using these articulated difficulties as a guide, i also provide a framework for assisting students to themselves overcome the obstacles that they see in their way when they are required to produce assessable reflective writing. as in my earlier articles in this trilogy, i have deliberately adopted the technique of writing in the first person as an example of both reflection in action and reflection on action. * rachel spencer is the director of professional and clinical programs in the school of law at the university of south australia 1 see spencer, r. (2012) ‘holding up the mirror: a theoretical and practical analysis of the role of reflection in clinical legal education’, 18 international journal of clinical legal education 179-214 and spencer ‘first they tell us to ignore our emotions, then they tell us to reflect’: the development of a reflective writing pedagogy in clinical legal education through an analysis of student perceptions of reflective writing (forthcoming). 2 spencer, above, n1. 3 above. it has been argued that legal writing pedagogy has its roots in the new rhetoric, which departed from the traditional, formalist approach to writing in the same way as client-centred legal practice developed in favour of the traditional paternalistic approach towards clients.4 the two theories developed at about the same time in the 1970s and 1980s. in reflecting upon their work and their reactions to challenges and various experiences within a clinical legal program, law students are able to practise the new rhetoric idea that writing is ‘a process for creating knowledge, not merely a means for communicating it’5 and that it is ‘[n]ot until we are forced to reread and rewrite what we have read and what we have written [that] we come to any clear understanding.’6 the new rhetoric view of reading and writing reflectively encompasses the idea that student reflection involves the ‘continuing audit of meaning’7 which should occur ‘by continuously monitoring their current understanding of what they are reading, writing, researching, or thinking.’8 ‘it is the very process of writing that exposes weaknesses in reasoning and authority and forces the lawyer to delve even deeper into the problem to find the root causes and their solutions.9 for example, drafting pleadings forces the lawyer (or student) to consider the issues, decide what evidence will be needed, and indeed consider if litigation is in fact an appropriate course of action. writing a letter to a client enables the client’s narrative to be 4 kowalski, t. ‘toward a pedagogy for teaching legal writing in law school clinics,’ (2010-2011) 17 clinical law review, 285, 311. 5 berger, linda, (1999) ‘applying new rhetoric to legal discourse: the ebb and flow of reader and writer, text and context’ in 49 journal of legal education 156. 6 berger, above, n 3, 157. 7 richards, i.a. (1942) how to read a page 204, 217, cited in berger, above, n2, 169, n94. 8 berger, above, n 5, 169, n94. 9 kowalski, above, n 4, 312. tested, as indeed it must, and succinct advice to be formulated. committing a commercial agreement to writing focusses the attention of the parties on the detail of their respective rights and obligations. most clinical placements require students to write what has been termed ‘advanced legal writing’10 which requires the exercise of a specific set of writing skills. like these various forms of ‘legal’ writing (letters, court documents, agreements, etc.), reflective writing requires the same level of concentration and the same clarity of thought in order to precisely articulate the thoughts and reactions that the student is experiencing. reflective writing, it has long been argued, assists with ensuring clarity for students as they negotiate their own personal journeys through their legal education, especially in the clinical sector. the reflective journal also provides a vehicle for law students to develop their own voice as writers. mcardle argues that ‘the assignment of imaginative, non-traditional writings can be equally useful, if not more so, to students developing proficiency in formal analytical writing…this work can also open up approaches to professional writing that preserve for the writer a sense of individuality.’11 in australia, out of a total of 26 clinical legal education programs currently operated by law schools, 17 of them (65%) require students to 10 kowalski, above, n 4, 285. 11 andrea mcardle, ‘teaching writing in clinical, lawyering, and legal writing courses: negotiating professional and personal voice’, (2005-2006) 12 clinical law review 501, 522. prepare some sort of reflective report or journal as part of the assessment for the applicable course.12 students engaged in clinical legal education programs ‘spend a great deal of time planning to write, writing, talking about writing, and then writing some more.’13 however, most of the writing that is discussed between a student and the clinic supervisor is ‘professional’ or ‘legal’ writing. legal writing pedagogy is different from reflective writing pedagogy. reflective writing in the clinical context is therefore somewhat paradoxical. it is to be expected that the requirement to produce two very different kinds of writing within the one course could be confusing for students. however, there are a number of elements that are required for good writing of any kind. grammatical correctness, syntax, sentence construction, spelling, appropriately organised paragraphs and the idea of a beginning, a middle and an end are arguably good basic building blocks for any kind of writing in any discipline.14 as explained in an earlier article about this particular project,15 my research started from the premise that there appear to be three key assumptions inherent in the expectation of clinical legal educators that students will write an assessable reflective analysis of their clinical placement. the first assumption is that students know how 12 australian learning and teaching council, 2011, identifying current practices in clinical legal education, san francisco: creative commons. 13 kowalski, above, n 4, 286. 14 for a detailed exploration of the pedagogy of legal writing, see kowalski, above. 15 spencer, this article has also been submitted for review; not yet published. to reflect and that reflection is a natural innate skill. in a previous article16 i have expressed the view that students need to be taught how to reflect, and clinical teachers must teach the skills of reflection before students are able to reflect effectively.17 on the understanding, therefore, that students need guidance on how to reflect, i wanted to ascertain student attitudes towards reflective writing. email exchanges, corridor discussions and informal class feedback had informed me that some students find reflective writing to be difficult. conversely, informal feedback had also informed me that some students find reflective writing to be easy, even pleasurable. my formal research aimed to investigate the source of the difficulties that are experienced by those students who are troubled by reflective writing, so that it might be addressed in the future and accordingly inform an enhanced pedagogy. part ii: approach and methodology. the research design envisaged that all students enrolled in my clinical legal education elective course would be asked to respond to a survey about reflective writing. i conducted qualitative research by way of a personal questionnaire. approval from the relevant university ethics committee18 was sought and obtained to distribute questionnaires to students enrolled in my legal professional and community service experience course. this is a clinical legal education course where 16 spencer, above n 1. 17 see spencer, n 1, especially pages 187-203. 18 human research ethics committee at the university of south australia. students are placed at a variety of external placement offices or within the school of law’s own legal advice clinic. my law school operates on a trimester system, in which the academic year is divided into three terms. the clinical legal education course is offered as an elective course each term. i am the course-co-ordinator and i teach the course for two out of three terms every year. however, in 2013, i did not teach or co-ordinate the course in terms 1 and 2, and a different member of staff performed this role. a questionnaire was handed out to all students present in the last class at the end of each term for four consecutive terms (terms 1, 2 and 3 in 2012 and term 1 of 2013), including those classes whom i had not personally taught. students were provided with an information sheet (see appendix 1) about the research that was being conducted and invited to participate by writing answers to the questions on the student questionnaire (opposite page). not all students enrolled in the course were present during the time of the questionnaires being handed out, so the responses are not representative of the entire student cohort from each term. however, all students present each time filled out the questionnaires. it was made very clear that it was a voluntary activity. none of the students who were present at the time of the distribution of the questionnaires declined to complete the questionnaire. across the period of four terms, there were a total of 51 students enrolled in the course.19 out of 51 students, 28 students completed the questionnaire, representing 54.9% of the enrolled students across that period of time. the answers to the questionnaire were handwritten and then submitted to me. all responses were anonymous. the questions were: 1. have you found keeping a reflective portfolio to be a positive or negative experience? why? 2. do you find reflective writing easy or difficult? explain. 3. have you found writing a reflective journal to be a useful exercise? why or why not? 4. has the process of being forced to reflect made you more reflective now about other tasks/ work/aspects of your life? 5. has the process of reflection enhanced or detracted from your placement experience? please explain your answer. 6. have you been worried / frustrated / concerned about reflective writing? please elaborate. 7. please provide any other feedback you have about the reflective writing component of this course. the responses to the questions were analysed collectively and no data was recorded in relation to differentiation between different cohorts of students. no changes were made to the course or to the assessment across the four terms from which students 19 a total of 8 students in term 1 2012; 17 students in term 2 2012; 9 students in term 3 2012; 17 students in term 1 2013. were asked to respond to the surveys, so they were all responding after having completed the same course with identical content and assessment. the only difference between different cohorts was that two were taught by a colleague; i taught the other two. it is also possible that differences in placement supervision might have impacted on students’ perceptions of reflection. i did not ask students this question and so this issue is not addressed here. however, it is an issue that might merit future exploration. after completing the questionnaires, students were also invited to attend a focus group to speak in more detail about their experiences of reflective writing. nine students participated in a focus group20 which i facilitated. the focus group was a semi-structured informal meeting of students who responded to the invitation to attend. they were initially asked to ‘tell me what you think about reflective writing’ and the conversation flowed organically. the comments obtained from the focus group provided some additional insights into students’ attitudes towards reflective writing. the aim of the focus group was to obtain more details from students about their attitudes to reflective writing that they might not have written on the survey response sheets. the focus group discussion was recorded on a digital audio-recorder (with the permission of all participants) and the results transcribed. students participating in the focus group were provided with a copy of the participants’ information sheet 20 on 4 april 2013. (see appendix 1) and they also signed a consent form (see appendix 2) acknowledging that they were participating voluntarily. approval was obtained from the university human research ethics committee to conduct the focus group. although some quantitative analysis has been conducted in relation to the responses, the research was predominantly a qualitative study of student responses to the seven questions. this article provides an analysis of the responses to questions 2, 5 and 6. an analysis of the responses to questions 1, 3 and 4 has been presented in another article. answers to question 7 of the questionnaire have been discussed where relevant in both this article and in the companion article.21 part iii: results of the research & conclusions. this part sets out a detailed analysis of the responses to the survey questions 2,5 and 6 and also of some data obtained from the focus group. an analysis of the responses to each question are provided sequentially. iii (i): do students find reflective writing easy or difficult? the responses to question 2 of the student questionnaire provided a helpful insight into student perceptions of the writing process. 50% of students specifically articulated that they found reflective writing difficult. a further 17% used words 21 spencer, above, n 15. expressing levels of difficulty with some but not all aspects of reflective writing. for example: i find it relatively easy…what i found difficult was putting my experiences into a broader, societal context. it is easy to write initially about my experiences but reflecting on it later can be different…and… trickier. descriptors like ‘intensive’, ‘overwhelmed’ and ‘difficult’ were used, but the students provided thoughtful analyses of why they found the task of reflective writing difficult. this will be particularly useful when addressing future students. for example, one student explained that the difficulty lay in the uncertainty of the subject matter and that it was hard to relate the reflective writing to the journal articles that they were required to read. this indicates a need for greater certainty and specificity in the instructions. in my experience, the knee-jerk reaction of many students to the idea of reflective writing is hostility. the hostility is often based on a lack of understanding of what is required. for example, one student wrote: at first i found it extremely difficult and was very overwhelmed by the thought of it. one difficulty was described as ‘putting my experiences into a broader, societal context’ – which was an acknowledgement of this as part of critical reflection. this same student said that the identification of ‘feelings and the actions relating to them’ was easy. these are useful insights which can be incorporated into the wording of instructions to students. in addition, it is important to stress that reflective writing is a good exercise in being articulate and using precise language. these are skills necessary in all types of writing, especially legal writing. students may appreciate the writing process more if they are aware that the skills they are developing are relevant to ‘hard’ skills (letters of advice, drafting pleadings, documenting agreements) as well as ‘soft’ skills (emotional intelligence, empathy, communication skills). responses to question 2 identify the specific actions that students find difficult:  tendency to over analyse  uncertainty of direction  deep thinking  presentation of reflection in an understandable way  being concise  standing in the shoes of other stakeholders  making assumptions about others  talking about things with others  writing thoughts down to share  putting experiences into a broader societal context  continuity  avoidance of ‘waffling’  expressing feelings  thinking deeply  keeping a good record of events  looking at the placement from different points of view  being critical  finding motivation  critiquing work progress and feelings  evaluation of self in identifying the difficulties encountered in reflective writing, the students articulated the heart of what makes good reflective writing. so although they have acknowledged that the task was difficult, they have articulated the very attributes that they know are the ingredients of what is required. this reinforces that students need to be taught how to reflect and how to write reflectively. but once they are taught what is required, students embrace the requirements and appear to be intellectually stimulated by the difficulties that the requirements present. the list of difficulties identified above could be presented to students as part of their instructions. this idea is developed in part iv. several students commented on the difficulties of dialogic reflection. these difficulties were:  deep thinking  the ability to present personal reflections that can be understood by others  empathising with other stakeholders  making assumptions about people  sharing reflections with others.  critical reflection one student summarised the difficulties thus: it is easy to write initially about my experiences but reflecting on it later can be different. it requires looking at my placement from different points of views and quite critically, which can be trickier. another view appreciated the value of improving analytical skills through reflective writing: it has not been an easy task. reflective writing has tested my analytical skills, to think about issues arising from my placement that i would not otherwise have contemplated. this observation can be used as basis for discussion about what dialogic reflection involves. again, the identification of these difficulties confirms that students know what is required of them and indicates that while finding the task difficult or uncomfortable, students are conscious of the issues they need to address. a number of the comments identify difficulties that are relevant to all kinds of writing, not just reflective writing: how to get over writer’s block and how to edit rigorously. these are not difficulties reserved for reflective writing. as with all writing, regular practice is the key. one student identified experiencing: … occasions where the ink just flows & thoughts are able to spill onto the paper as an extension of the brain. at other times i think i can tend to over analyse & mull over situations too much creating the scenario where you don’t know in which direction to head. in saying that, a lot of times you start in one direction & by the time your finish (sic) – end up in an entirely different position than one would have thought. the above observation summarises the struggle that many students face. however, ending up in a different position to the originally anticipated position is not necessarily a problem. the shifting of perspective is part of the ‘disorienting moment’.22 one goal of reflection is to venture down paths hitherto unwalked. for the student who might be unused to trying new ways of thinking, reflection is the perfect opportunity to end up in a different position, and be intellectually enlightened because of it. a few commented on the ‘artificiality’ of reflective writing. writing initially about their experiences was generally expressed to be easy, but the critical analysis of their experiences, especially from different points of view was seen to be one of the most challenging aspects of reflective writing. a number of students acknowledged the requirement to write more than, for example, ‘just a basic review of what we’ve done each day at the placement’. an area which was repeatedly described by students as an area of difficulty was the discomfort experienced in writing about the self. students were very articulate about this. one student described this as ‘navel gazing’ in ‘self-indulgent proportions’. a number of students said that they reflected ‘in my own head’ but found expressing their feelings in writing to be difficult. another said: i find reflective writing quite challenging as i feel quite awkward and uncomfortable critiquing my own work progress and feelings. the actual writing poses no difficulty, but the evaluation of my self is hard. it isn’t something i enjoy, but i completely understand its relevance to me and my future. 22 quigley, f. (1995) ‘seizing the disorienting moment’, 2 clinical law review 37, 51, cited in aiken j.h. (1997) ‘striving to teach justice, fairness and morality’, 4 (1) clinical law review 1, 24 and 25. one student was particularly strident about being forced to disclose private feelings: very difficult. reflective (sic) is something that i do every day. i dislike writing my personal reflections and disclosing it to somebody else. it’s something i value privately. one issue of concern that was discussed in the focus group was the fact that some students felt that their training to be objective in their academic writing was so entrenched that it hindered their ability to talk about themselves and their subjective reactions to their placements and the topics covered in classes. when required to engage in deep personal reflection, students found this confronting and confusing because it was the complete opposite to what they had previously been taught. the students also pointed out that they had been taught by all their other lecturers not to become emotionally involved with their work and that they must remain professionally detached from their clients. yet in my course they are required to reflect and develop emotional intelligence and write about their personal reactions. students found it completely disorienting that their training in emotional detachment was being challenged. one student was very passionate about this, and voiced concerns in an urgent, almost desperate tone that would have been difficult to convey in a written response to a questionnaire. it was useful to hear this view in the focus group. the student said: … we are made to look at everything so … objectively and we are meant to like blank ourselves out from having any emotional connection to anything in the sense that you can’t get too attached to something otherwise it will drive you insane and then we have to do all this emotional reflection on stuff and then my brain is virtually, like, ‘stop emotionally reflecting on anything!’ so then you are just basically writing about how you feel about stuff and i’m like, ‘how the hell am i supposed to do that?’ it’s just very different from everything that we’ve been taught how to do. which is obviously a good thing but at the same time it’s like, a pretty difficult thing to do. this urgent plea encapsulates the overarching student difficulty with reflective writing and simultaneously highlights a major problem with modern legal education. other students in the focus group agreed that the subjective nature of reflective writing was contrary to the approach that they had so far been taught. one student said that they had all been taught to ‘turn to stone’ and to ignore any emotional connection with their subject matter when dealing with legal issues. the concept of professional detachment was considered to be so completely anathema to the idea of reflection that it left them feeling very confused. this raises the issue of different teaching philosophies and the approach to clients amongst academic staff within the same school. there is a conflict between those law teachers who advocate maintaining professional distance by disallowing the self from becoming ‘emotionally involved’ and those law teachers who profess that the development of emotional intelligence and empathy are critical not only for efficient and successful legal practice but also for the preservation of mental health and a sense of fulfilment in one’s work as a legal practitioner. for law students, this is creating confusion. for clinical teachers, the challenge is to guide students through these apparently conflicting principles. the scope of this paper does not allow for a detailed examination of this important dilemma, but it is clearly an important factor to be considered when teaching students about the value of reflection. other students provided important feedback about reflective writing as an assessable component of the course. two students were of the view that reflective writing should not be ‘such a big part of the assessment’. others appreciated the opportunity to improve their writing as the term progressed. for example: it’s been a welcomed change doing reflective writing for more than 1 assessment for the same subject. i feel as though i have learnt more on reflective writing than in the past because i get a chance to read the criticism and then try and improve the next assessment. other students comment less favourably about assessable reflective writing: perhaps only make one of the assessment pieces based on reflection. at the moment all 3 pieces of work require “deep reflection”. i don’t feel as though i am learning... it would be nice if it wasn’t such a big part of the assessment of the course. some students took advantage of the opportunity afforded to all students (but not necessarily taken up by all students) to submit weekly journal drafts to me for feedback. those who did this produced noticeably better final pieces of reflective writing for their final assessment. after gathering data for this article, i have implemented a slightly different assessment scheme which requires all students to submit four short journal entries (200 words) across the term. i then provide feedback on those pieces, which the students are at liberty to develop into their final reflective portfolio at the end of the term. each of these short journal entries is worth 5% of their overall portfolio mark. already this has proved successful with students producing better work each time. i have also noticed a considerable increase in both quality and quantity of class discussions since implementing the mandatory journal entry requirement. the pedagogical message from the responses to question 2 is that students require ongoing guidance and encouragement in relation to their reflective writing. guidance and assistance in relation to critical analysis is important to assist students with the development and improvement of their reflective writing. constructive feedback is vital for students whose writing lacks critical insight. for example, comments from supervisors or course co-ordinators like ‘go deeper’ or ‘needs more critical analysis’ are not enough. this was highlighted in the focus group. the marker must identify examples of where and how the student can delve more critically into their own experiences by asking specific questions like:  what aspects of your own background do you think make you feel like this?  you seem to feel very strongly about this? what aspects of your personality are relevant to this?  do your own values have a bearing on this? what are the values that are important to you in this context?  why do you think the client might have said that?  what exactly made you feel frustrated?  how might you do this differently next time?  what made this such a good day?  why do you think this make you angry? why did it matter to you?  are there any articles that cover this subject?  do you agree with what (author of article on reading list) says about clients in this situation? iii (ii): has the process of reflection enhanced or detracted from the student placement experience? 18 out of 29 students said that the process of reflection had enhanced their placement experience. six said that it had detracted from the experience. two said that it had neither enhanced nor detracted from the placement experience. many of those students who said that that the process of reflection has enhanced the experience, focussed on their own learning and personal progress. students commented favourably on thinking back on all the particulars of day to day work / client interviews etc. and writing them down’; many emphasised the ability to ‘reflect on my progress’, look back at my past experiences and learning from them. for example, one student remarked that on the occasion of dealing with a ‘difficult client’, writing about that experience enabled that student to ‘look back on how i first dealt with the experience’ and then to ‘modify… my reactions positively’. those who found that the reflection enhanced their placement experience said that this was because it helped them to organise what they had learned: otherwise so much happens in a day that i might just forget what’s happened & fail to realise what i’ve learnt & what progress has been made. one student said that reflective writing had helped to distil exactly what was being learned from the experience and that it was also helping to shape and direct what that student wanted from the placement experience. this relates directly to the class time that we spend on goal setting and planning for the placement. as part of their placement preparation i always advise students about the unpredictability of workplace environments and that they should ‘expect the unexpected’ while they are on placement. one student directly commented on this: it made me aware to aspect (sic) the unexpected and … think… twice over anything and not to ignore any incident no matter how small or bigger that incident might be. one said that the writing process slightly detracted from the placement experience but: … only because of where i am for my placement. i really do not deal with most of the topics we have talked about so have found it really difficult to try & relate the topics back to my placement & talk about them. this is an important observation which has illuminated the necessity of ensuring that all classes are relevant to all placements. even if most students in the class are placed in one particular location (e.g. the legal advice clinic) it is important to constantly bring the awareness of all students back to the fact that there are a variety of placement environments. this is a deliberate pedagogical strategy for enabling discussion about the variety of work for lawyers and the different approaches to legal practice and the use of legal skills and training. the clinical teacher must be mindful that students may not all be placed in the same organisation or they may have different experiences within an organisation. i endeavour to be inclusive in all classes, but this feedback indicates that one must always be mindful of this. those who found the reflective writing process to detract from the placement experience had various reasons for this: detracted as it means that there is always something else that is in the back of my mind, i.e. that i need to be constantly reflecting on my actions and work, as often there is nothing to really reflect on, as the work is straightforward. therefore, sometimes i need to create something so that i know that i will have something that i can write about, and hence can’t fully concentrate on the work that i have been given. this observation above is interesting. there are two alternate explanations. either this student found that the requirement to reflect intruded into the actual placement tasks which were ‘straightforward’, or the student was not challenged by the placement tasks and therefore could have reflected on why not, and how to seek out more challenging opportunities. this appears to be an indication that the student was actually naturally engaged in ‘reflection-in-action’. five students noted that reflective writing detracted from the placement experience because they were worried about what they were going to write about and that having to write about their placement experiences detracted from the enjoyment of it. there was a feeling amongst some students that the writing became repetitive. it helped / enhanced for the first few weeks of the course when everything was new. now, i find it repetitive and boring. i feel like i’m repeating the same words throughout all 3 assessment pieces.23 this highlights the need for me to emphasise the need for students to reflect on their progress and their goals. on the other hand, the final portfolio submission requires students to submit answers to specific questions (see appendix 4) so the possibility of repetition is eliminated. some students were pragmatic in their responses, finding that reflection enhanced the experience because of the direct link to assessment. some appreciated the 23 this student wrote this same wording twice, for 2 separate questions. the three assessment pieces are actually very different. one is a critical incident report, one is a seminar presentation on an article from the reading list and the third is a reflective portfolio (which cannot include the incident used for assignment 1). opportunity to use the journal writing as a first draft of their final portfolio submission (which was encouraged at the time of this research being conducted and is now mandatory), or because the requirement to write a journal entry provided a task when the placement did not: it has enhanced my experience but that may have been because it gave me something to do – there was a lot of just sitting and listening for long periods of time in my placement, which could sometimes be dull. writing and reflecting on what was occurring filled up my time. some students liked the focus on the emotional aspects of the placement. one student articulated the necessity to: … really focus on my feelings whilst being there, thus being more alert, and willing to perform more tasks. another said that written reflections enabled an acknowledgement of: … what i’m worried about and realise what challenges may be for me. one said: i think it has kept it grounded for me. it puts things into perspective for me. focussing on feelings was said by many to have assisted self-awareness, for example: definitely enhanced my placement experience. i enjoyed reflecting and becoming aware of my strengths and weaknesses and how i could improve. self-awareness is the first step to change therefore reflection is a very effective tool. one student found that it directly facilitated empathy. this student said that reflection enhanced the ability to analyse and understand the behaviour of others. this in turn enhanced the student’s interviewing skills: i am now able to read a client’s expressions and respond appropriately. others emphasised the positive aspects of monitoring their progress. a recurring comment was that students liked to be able to look back on experiences and learn from them. i enjoyed reflecting and becoming aware of my strengths and weaknesses and how i could improve. self-awareness is the first step to change therefore reflection is a very effective tool. the positive comments which assert that reflective writing enhances the placement reinforce the literature which advocates reflective writing as a key component of clinical legal education. other comments suggest that ‘prompts’ need to be included as part of the instructions for reflective writing assessment exercise. they also underscore the need to ensure that assignment instructions are clear. iii (iii): are students worried / frustrated / concerned about reflective writing? the responses to question 6 of the student questionnaire fell into three main categories: those students who felt worried, frustrated or concerned because they felt uncertain whether their writing would achieve the desired grade, those who were uncertain about appropriate subject matter for reflection, and those who stated that they had not been worried, frustrated or concerned. 28% of students were very confident and expressed no concern or anxiety. they felt in control and were not worried at all by reflective writing: no as i feel it’s a task that is very much in my control. i was never worried about reflective writing. i know it is a beneficial tool – helping in learning, using past experiences to perfect future ones. five students repeated the word ‘frustrated’. they were frustrated because they felt they had nothing to write about, or they could not relate to what everyone else was saying in class discussions, or because they did not want to disclose their personal reflections to anyone else: frustrated!! … how can someone question your reflection when it is your experience and not theirs? i am frustrated and concerned about it. frustrated because i dislike disclosing my personal reflections / issues to somebody else. at the same time, writing something artificial because i value my privacy makes me concerned that my artificiality is reflected in my writing. although the term frustration is expressed by only five students, this represents almost one fifth of the surveyed students so it is a concern worth noting. if these comments were raised in reflective writing, i would be asking the student (s) to reflect critically on why they are feeling this way. for example, i would ask them to address questions such as: what is it about your personality that you think makes you feel this way – do you like to be in control? have you been bored? what does this tell you about the type of place you would like to work?24 a number of students repeated the word ‘worried’. this was in the context of concern about lack of subject matter, and therefore a potentially low grade. for example: slightly worried, only in a sense that i have not reflected enough in certain situations etc. i have been worried i won’t have enough content from placement to fulfil the requirements of the portfolio in terms of an assessment i have been worried that i cannot improve my writing style effectively enough to improve my marks. i am only really worried that the experiences i have had do not fit neatly into the pre-ordained reflective categories for the reflective portfolio. i realise that i am not very good at it, so therefore it has been harder to get to the required standard. only one student was worried about disclosing reflections about emotions: 24 see spencer, above, n 1 for a variety of suggestions for stimulating reflective writing. only thing i am worried about is telling you.... i don’t talk about my emotions to anyone. even though only one student voiced a concern about privacy, it is important to consider this complex issue. students should not be expected to divulge sentiments that they do not wish to disclose to anyone. the trust between clinical teacher and student is of critical importance and can take a long time to establish. some students will readily write about their personal thoughts and how they react to different situations. others may be much more private about their feelings. others may have complex backgrounds that they are not comfortable sharing. clinical teachers must always be aware that in any class, it is quite probable that there will be students who live with a wide range of difficulties, such as mental illness, abusive partners, backgrounds of sadness, anguish or torment which have shaped their personalities and their attitudes. not all students will be prepared or able to write about or discuss this. clinical teachers must make it clear to students that they are not expected to disclose anything unless they feel comfortable doing so. on the other hand, teachers must give guidance to all students to be mindful of how past experiences have shaped who they are today. the response about ‘not talking about my emotions to anyone’ is a reminder of the privileged position that the clinical teacher occupies. to be privy to students’ private reflections about their hopes and dreams and their personal recognition of the backgrounds that have shaped their personalities is indeed a rare and special one. it is critical that clinical educators respect this privilege. the dominant theme raised as a concern was the assessment of reflective writing. several comments suggest that while some students were not anxious about the reflective writing task itself, they did have concerns about whether they had reflected “enough”, or “deep enough” or “to the level of detail needed”, for example: i am often worried about reflective writing because i find markers can always find something you could have elaborated on more etc. i find it very difficult to achieve an hd standard in reflection exercises. others were concerned about the way that their writing was assessed. one student said: marking someone’s ability to reflect seems pointless. some questioned the validity of marking a subjective reflection. however, this highlights the need to explain the necessity of dialogic reflection, which takes the student beyond a consideration of merely their own personal reactions to events and situations. for example: how i understand a situation and record these facts may not necessarily be the same as the lecturer. can be subjective... this student’s comment is at the heart of critical reflection writing. students are required to analyse and reflect from multiple perspectives. this has alerted me to the need to discuss this area of concern in classes, and to reinforce the requirement for dialogic reflection. these concerns demonstrate a need for clear guidance to be given to students about the exact requirements of the assessment tasks and how to achieve a high grade. they also reinforce the arguments put forward by me that students do not innately know how to reflect and how to write reflectively and must be taught.25 student responses that indicated a high level of perceived improvement in reflective writing were an encouraging suggestion that my pedagogy of progressively developing trust within the class26 is effective as a means of teaching the skill of reflective writing. for example: before this course and evidence course (where i also had to reflect) i did not like reflective writing because i never really had direction about how to write a good reflection but after reading jenny moon’s articles27 and learning from rachel, i feel much more at ease about reflective writing. at first it took a little to warm up to the activity but it has become easier. it is of concern that the reflective writing tasks within the clinical legal education course causes students to worry, and steps must be taken to alleviate this type of anxiety in the future. it would appear that reflective writing pedagogy must include appropriate recognition of student concerns and appropriate steps to resolve those concerns. this is addressed in part iv (recommendation 8). 25 spencer, above, n 1. 26 spencer, above, n 1, p 196. 27 the author includes several chapters from the following text as reading materials for students: jennifer moon (2004), a handbook of reflective and experiential learning: theory and practice, routledge falmer. part iv: conclusions and recommendations the research unearthed a variety of issues to be addressed in order to enhance reflective writing pedagogy. where concerns and anxieties have been raised it is hoped that these can be reduced or eliminated. some of the students’ responses raised issues that i had not previously considered. this has informed my teaching practice and has added to the scholarship of teaching and learning in this area. dealing with negativity part ii outlined some of the negative reactions that some students described when confronted with the task of reflective writing, such as feeling ‘quite awkward and uncomfortable’ and ‘overwhelmed’. while these feelings are a necessary part of the clinical experience because they contribute to the ‘disorienting moments’28 which are a part of the clinical experience, this research has revealed the necessity to actively warn students that they may feel certain negative emotions during the reflective writing process itself. as part of the introductory sessions on reflective writing, it is considered necessary to advise students that feelings of awkwardness, discomfort, uncertainty, even a sense of being overwhelmed are all to be expected and are a ‘normal’ part of the reflection process. students should be advised that they may find reflective writing to be annoying, tedious or challenging and that it will be timeconsuming. they may find it difficult and they may not enjoy it to start with. however, students should also be introduced to the idea that without these shifts in 28 quigley, above, n 22 and spencer, above n 1, 193. comfort, students are unlikely to reach the requisite level of critical reflection that is the hallmark of good reflective writing. another important factor in overcoming negative sentiments is the necessity to suggest to students that an ability to reflect develops one’s capacity to make moral judgments and to exercise ethically appropriate behaviour. in analysing some of the student comments that express negativity towards reflective writing, it has become clear that this link needs to be made by encouraging active discussion about this in class. care needs to be taken in ‘selling’ the concept of reflection to law students. the ability to reflect is recognised as an important aspect of professional work.29 students need to be guided through the literature on this to demonstrate how reflective practice helps to develop critical thinking, self-awareness and analytical skills.30 in addition, it is important to provide evidence for students (through the literature) that self-awareness has been identified as a skill that lawyers need. an equally important issue which is articulated in the questionnaire responses is the recognition that some students do not find reflective writing to be intellectually vigorous. reflective writing tasks should deliberately and expressly require students to engage with the relevant literature. since commencing this research, i have started to include literature for students to read, discuss and present to the rest of the class 29 see especially schon, d.a. (1983) the reflective practitioner: how professionals think in action, usa: basic books and schön, da, (1995-96) ‘educating the reflective legal practitioner’, 2 clinical law review, 231. 30 see holland, l, (2013) ‘student reflections on the value of a professionalism model, 11(1) journal of information, communication and ethics in society, 19-30 for an overview of reflective learning based on constructivist learning ideals and a discussion of this issue in the context of computer science, especially at page 20. (as a seminar presentation) about self-awareness and emotional intelligence. in a very short time, i have noticed a marked positive change in student attitudes in class towards these concepts. the list of literature that i currently provide to students is appended at appendix 5. recommendation number 1: advise students at the start of the term that feelings of discomfort are not unusual during the reflective writing process. encourage students to write about their level of discomfort, why they think they feel uncomfortable, and whether the discomfort eases with time as they reflect and write more. recommendation number 2: introductory sessions about what is required in “good” reflective writing need to include room for discussion about the value of reflection and of reflective writing. recommendation number 3: assessment tasks should allow for rigorous discussion of the articles on the reading list. for example, students could be given specific questions based on a series of themes and asked to discuss and debate their answers using examples from their placements. for example: what is meant by client-centred practice? do you agree that client-centred practice should be used in any kind of lawyer/client interaction? use references from articles and examples from your own placement to support your answer. reinforce the positives part ii also highlighted that while many students raised negative issues, the research provides evidence that the conclusive response from students about reflective writing is that the majority of them found the positive aspects of the reflective writing tasks to outweigh any negative feelings they had. it is therefore considered important to advise students, as part of the introductory phase, that any negative attitudes they have may well be overtaken with positive responses by the end of the course. it is important to advise students that the reflective writing process evolves on a continuum that may vary in intensity of positive and negative sentiments towards actually doing the reflective writing. just as the pedagogy that i have employed involves a gradual introduction to the skills inherent in the act of reflection,31 the development of those skills by students will involve a gradual understanding of how the process of reflection makes them feel. as the research shows, students themselves develop an appreciation of their own heightened selfawareness, a critical component of emotional intelligence.32 personal awareness has been noted to be an important attribute of law graduates.33 recommendation number 4: when teaching students about the skills inherent in the act of reflection, advise them that whilst they may at times find 31 see spencer, above n 1, 196. 32 james c, 'seeing things as we are. emotional intelligence and clinical legal education,' (2005) 8 international journal of clinical legal education 123, 138, discussed in spencer, above, n 13. 33 boag a, poole m, shannon l, patz c and cadman f, (2010) breaking the frozen sea: the case for reforming legal education at the australian national university, anu law school reform, 5, available at <www.lawschoolreform.com> the reflective process difficult, the overall experience is designed to be a positive one. degrees of difficulty there is no one particular aspect of reflective writing that students find difficult. different students find different aspects and stages of the reflective process to be difficult or challenging. the analysis of responses to question 2 (see part ii(2) above) shows the variety of issues which students perceive as ‘difficult’. some of these can be addressed in a practical way. for example, ‘needs good memory or good record of event’ can be addressed by recommending that students keep daily notes of each day of clinical placement which can be used an aide memoire when later writing a critical and dialogic reflection. whilst this might appear to be an obvious solution, some students need to be given this suggestion. students have identified a number of difficulties that they experience in reflective writing. i now include a list of ‘potential difficulties’ that students may face as part of their assessment instructions. we also discuss these in workshops. in addition, time in class is now devoted to a discussion about these difficulties and strategies for overcoming them. for example, students are provided with the list of potential difficulties and then asked to comment on one or two of them (see appendix 3). a common theme in the list of ‘difficulties’ is that students find it hard to express their feelings and to evaluate themselves. the research did not probe what might have made this easier, nor why they find this difficult, although there are a number of speculatory theories that could be advanced. one is that law students are often ‘a type’ perfectionist, competitive personalities who are reluctant to reveal any kind of ‘weakness’. an analysis of personal feelings, including doubts, hopes and fears may be a confronting task that the competitive law student may be reluctant to undertake. the issue of trust between student and lecturer/clinical supervisor becomes very important here. students must be confident that their reflections remain confidential between them and whoever is reading or marking them. if confidences are to be shared with the class, this must be carefully negotiated. this is where the issue of trust between class members also becomes relevant. the pedagogy of reflective writing must include the development and maintenance of trust, not only between teacher and student but also within student peer groups.34 this is a phenomenon that in my experience usually occurs naturally across a period of time. recommendation number 6: students must be specifically told that their written reflections will be confidential, unless negotiated otherwise. recommendation number 7: open negotiation of the oral ‘sharing’ of experiences must occur in class with consensus as to how that will occur. for example, students might be encouraged to agree that they will not interrupt each other, not criticise, only offer constructive criticism, but be open to new 34 see spencer, above, n 1, 196 for a discussion on development of trust across the term. ideas. it is useful to facilitate such a discussion in the first class in order to reach consensus on how discussions of personal experiences will occur within the group. recommendation number 8: clinical teachers could present students with ‘expectation of difficulty’ as part of their instructions for reflective writing assignments, and discuss these potential difficulties in class. this will not only alleviate student anxiety (‘am i the only one who feels this way?) but it will also enable students to discuss their own experiences of reflective writing with a view to developing strategies for overcoming such difficulties. subjects for reflection not all students feel troubled or surprised by the clinical or placement experience. while some students may be anxious or nervous, many students are confident, happy and enjoy every moment of the placement. they do not have negative feelings to talk about. for example: it’s difficult to just be at placement and take it all in when you have to worry about finding something to worry about. some students expressed concern that that they had nothing to write about. one student made the comment: i wished my placement was a little more law focussed & interactive so i could get the full benefits of reflective writing. reflection need not be about something that is a source of concern. the ‘disorienting’ moment is only one prompt for reflection. it is important that students recognise that writing about experiences that they find positive are just as valid as writing about matters of concern or anxiety. again, prompts are still useful in order to deepen the reflection, such as: ‘what was the best thing about today?’ ‘is there anything you could do in the future to improve this performance?’ ‘what advice would you give to a future student about developing confidence?’ ‘do you want to work in this sort of environment? why or why not?’ ‘what aspects of your supervisor’s personality do you admire?’ ‘why do you think the interview went so well?’ ‘what did you do to contribute to this being a positive experience?’ recommendation number 9: clinical teachers should use prompts to encourage students to reflect on positive experiences. careful prompts need to be given to students who may feel that their placement does not provide enough opportunity for reflection. mental health issues as a consequence of conducting this research, i have contemplated whether the reflective journal might be a tool of empowerment for students that could prevent ‘mental health issues from consuming their life in law school’.35 the setting of personal goals and then the monitoring of those goals across a term can be very 35 gibson, ben, ‘how law students can cope: a student’s view’, (2010-2011) 60 journal of legal education 140. empowering for students. to be able to say, ‘i achieved that’ can be a step towards higher self-esteem and greater confidence. students have a range of goals; it is considered important to always tell students that their goal will not be the same as the person sitting next to them, that they do not need to divulge their goals with the class and that their goals may change across a period of time. but whatever the goal is, it is important to work out a strategy for achievement. some student goals are very practical: write better letters, learn how to draft a pleading, be better organised, update knowledge about a particular area of law. others are more personal: overcome shyness around other work colleagues, overcome the fear of knocking on a supervisor’s door or learn to ask for feedback. and others are quite specific: learn not to be defensive about negative feedback, think about the perspectives of others. being forced to write about their goals through a reflective journal provides students with ‘meaningful opportunities to reflect on their reasons for attending law school.’36 this has recently been found to be an important aspect of the law student experience.37 this desire by law students to be given opportunities to reflect on their reasons for studying law demonstrates that reflection goes beyond clinical legal education, and is important to all aspects of legal education. gray points out that ‘[o]f great significance…is…the need for dialogue’ between students and staff.38 reflective report writing can provide that sort of dialogue which can be critical for 36 boag et al, above n33. 37 gray, j. (2012) ‘thawing out the law school: why we need legal education theory’, 37(3) alt law journal 171. 38 above, 173. students with a mental illness. although this was not canvassed in my formal research, my experience has taught me that the reflective writing process has been extremely beneficial for some students who suffer from depression or anxiety, because it enables them to articulate their concerns and formulate strategies for addressing them, especially if sensitive and constructive feedback is provided. recommendation number 10: clinical teachers need to be mindful of the diversity amongst students and tailor feedback to journal entries sensitively and compassionately. balancing professional distance with reflection-in-action a number of students in the focus group and others who responded to the questionnaire appear to find a lack of congruency between reflection and professional detachment. i am of the view that the two concepts are not mutually exclusive but that they need to be discussed with students. students are coming through law school with the idea that they have to ‘blank ourselves out from having any emotional connection to anything’ and that they have to ‘turn themselves to stone’ in order to ‘think like a lawyer’. i find this alarming. after only a few years in law school, students are feeling that they must not allow themselves to feel anything and that professionalism is dependent upon the necessity to stifle their own emotions. one can only hazard a guess in relation to the effect that this must have on students’ emotional well-being and mental health but it can only be deleterious. it appears that class discussions about these issues are critical. i cover issues such as emotional intelligence, self-awareness, professionalism and clientcentred-practice but it appears that there is a lack of linkage between these topics. what is required is a deliberate and articulated link between each of these concepts. recommendation number 11: clinical teachers should articulate their own ideas about emotional intelligence and client-centred practice whilst making it clear that not all lawyers will agree on these issues. re-badging ‘reflection’ a number of students expressed disdain, wariness and even contempt for the idea of reflection. a number of students when using the word ‘reflection’ in the focus group, used a tone of mock-seriousness combined with rolled eyes or a tone of sarcasm, hinting that ‘reflection’ is not something that serious lawyers do. however, the same students described the need for self-improvement and ‘looking back’ on what they had done. they also appeared to have no difficulty with using examples from their own experiences to explain their understanding of concepts raised in articles provided in their reading lists. a major negative factor appears to be the word ‘reflection’ itself, which seems to invoke discomfort. on the other hand, students say that would be happy to complete a ‘project’, to ‘give them (the markers) what they want’ and to ‘reflect just after an interview’. it is perhaps the over-use of the word ‘reflection’ that is resisted. i am considering re-badging the concept of reflection in order to convey more meaning of what is required. for examples, students might be asked to write an ‘interview analysis’ or an ‘article analysis’, using examples from their own experiences to illustrate their understanding of the article(s). the term ‘reflection’ is viewed by students as heavily bound up with their emotional reactions to incidents and experiences. this is interesting in itself as this demonstrates a level of reflection that is purely egocentric rather than dialogical. however, this demonstrates a need for the clinical teacher to provide convincing explanations of the benefits of dialogical reflection, as well as the development of emotional intelligence as a critical skill for lawyers. ‘recommendation’ number 12: this final idea is a suggestion rather than a recommendation, hence the quotation marks. having not yet tried this myself, i am not in a position to recommend it. however, clinical teachers, might consider re-badging or re-labelling ‘reflection’ and ‘reflective writing’ by using descriptors which may appeal to students who prefer terminology which appears more scientific, such as ‘placement analysis’ or ‘clinical retrospective’, whilst still requiring students to engage in critical dialogic reflection as an essential component of such an ‘analysis’. part v: conclusion this article provides an analysis of the results of formal research that was conducted into student perceptions of reflective writing in the clinical legal education context. the research was designed to investigate whether students perceived any benefit from reflective writing and what difficulties they actually encountered in writing in a way that is particularly different to other forms of academic assessment. the objective of this research was to ascertain whether student perceptions of reflective writing match faculty perceptions of the benefits of reflective writing in clinical legal education. qualitative research has revealed that perceptions differ amongst the student cohort and that not all students perceive a benefit from reflective writing in the clinical legal education context. however, the majority of students surveyed for this research indicated an appreciation of reflective writing as an enhancement to a clinical placement. their responses have generated a series of recommendations that clinical legal educators might consider in their own pedagogical practices. the first aim of this research was to ascertain the perceived benefits of reflective writing from a student perspective. the research has revealed that students perceive a variety of benefits, most particularly the development of critical thinking skills and as a tool for personal and professional development. the second aim of the research was to ascertain the sources of student anxiety in relation to reflective writing. these were revealed to be varied and numerous, and an important recommendation made in response to these concerns is to articulate their potential in advance to students and offer strategies for students to deal with these concerns. the third and final aim of the research was to develop an improved pedagogy of reflective writing in the clinical legal education context. the recommendations set out in part iv offer several suggestions and recommendations as to how this might be achieved. these recommendations are relevant not only in law schools, but in any discipline where reflective writing is embedded within the curriculum. i sincerely thank the two anonymous reviewers who reviewed this article prior to publication. their suggestions for this article, and in relation to potential areas for future research, were very helpful. this research has deliberately focussed on reflective writing rather than reflective practice. it has highlighted student perceptions of difficulties associated with the practical reality of exercising reflective writing skills. yet to be explored are the other potential types of reflective practice that could be employed in addition to (or alternative to) writing. other types of reflective expression may well be possible in the clinical legal education context, such as mind maps, drawing, painting or film production. i have never asked students to produce forms of reflective expression other than prose writing. perhaps this is an area to be further investigated. the possibilities are intriguing and exciting. like my earlier article, this one has been written with a view to sharing my experiences so that other teachers of similar courses might benefit from my research and my conclusions and recommendations. appendix 1 student perceptions of the role of reflection in clinical legal education participant information sheet this information sheet is for you to keep. i am the director of professional programs at the school of law at the university of south australia and i am gathering information for a research project about reflective writing. i would like to document my research with a view to publishing a peer reviewed article about my findings. i invite you to participate in this research study. participation is voluntary. the aim/purpose of the research the aim of the research is: 1) to investigate best practice for teaching reflection and reflective writing in a clinical legal education course, and 2) to investigate law students’ perceptions of reflective writing. what does the research involve? i will ask you to complete a questionnaire. if you are interested, you are also invited to participate in a focus group to discuss reflective writing in more detail. can i withdraw from the research? participating in this research is voluntary and you are under no obligation to consent to participation. you may choose not to answer any of the questions. confidentiality all questionnaires are anonymous and cannot be identified. if you participate in the focus group, your responses will be recorded and then transcribed but they will be de-identified. you will not be identifiable from the transcript. given the nature of focus groups, confidentiality of focus group discussions and participation cannot be guaranteed. all information collected as part of the study will be retained in paper format (questionnaires) and on the unisa computer system for ten years in a locked filing cabinet in my office at the school of law at the city west campus of the university of south australia. only rachel spencer will have access to the data. all records containing personal information will remain confidential and no information which could lead to identification of any individual will be released. results if you would like a copy, i will provide you with a copy of my research findings in due course. ethics approval this project has been approved by the university of south australia’s human research ethics committee. if you have any ethical concerns about the project or questions about your rights as a participant, please contact the executive officer of this committee on telephone number + 61 8 8302 3118, email xxxx@unisa.edu.au if you would like to contact the researchers about any aspect of this study, please contact the chief investigator: if you have any questions or concerns about the manner in which this research is being conducted, please contact: rachel spencer rachel.spencer@unisa.edu.au the executive officer telephone + 61 8 8302 3118 email xxxx@unisa.edu.au rachel spencer director of professional programs, school of law appendix 2 focus group consent form project title student perceptions of the role of reflection in clinical legal education researcher’s name & contact details: rachel spencer telephone: 8302 7946; email: rachel.spencer@unisa.edu.au  i have read the participant information sheet, and the nature and the purpose of the research project has been explained to me. i understand and agree to take part.  i understand that i may not directly benefit from taking part in the project.  i understand that i can withdraw from the study at any stage and that this will not affect my status now or in the future.  i confirm that i am over 18 years of age.  i understand that i will be audio-taped during the focus group discussion  i understand that the digital recording will be saved onto a usb and stored in rachel spencer’s office (room lb2-02b) in the law school. the recording may be given to a person employed by a transcription service in order to transcribe the recording. in the event that the recording is transcribed, the transcription will be saved in digital format on a usb in rachel spencer’s office (room lb2-02b) in the law school and a hard copy will also be kept in the same office. apart from a person transcribing the recording, only rachel spencer will have access to the data.  i understand that any data that the researcher extracts from the focus group discussions for use in reports or published findings will not contain names, but that my university may be identified.  i agree to maintain confidentiality of the focus group discussions and preserve the identity of focus group participation. name of participant signed dated i have explained the study to subject and consider that he/she understands what is involved. researcher’s signature and date this project has been approved by the university of south australia’s human research ethics committee. if you have any ethical concerns about the project or questions about your rights as a participant please contact the executive officer of this committee, tel: +61 8 8302 3118; email: xxx@unisa.edu.au. appendix 3 class discussion question students have identified a number of difficulties that they experience in reflective writing, including: over analyse ...you don’t know in which direction to head deep thinking ...present reflection in an understandable way once you get going the difficulty is stopping it’s an intensive process if you want to do it correctly putting yourself in the shoes of other stakeholders ...try to predict their reactions i don’t like making assumptions about things or people ...talk about things with others ...writing my thoughts down to share ...putting my experiences into a broader societal context ...difficult to have continuity ...in some regards i waffled ...expressing my feelings ...really think deeply ...needs good memory or good record of event ...reflecting on it later ...looking at my placement from different points of views ...have to be critical ...when i’m tired ... i can be unmotivated & then i find reflecting harder ...need to go deeper than just writing about what happened ...critiquing my own work progress and feelings ...evaluation of myself choose one of these issues and be prepared to discuss the following in class:  identify an issue which is causing difficulty for you in your reflective writing.  consider and articulate what exactly is the real difficulty for you.  identify some strategies for overcoming this difficulty.  ask questions about the guidance you need to overcome this difficulty. appendix 4 instructions for students reflective portfolio your portfolio will consist of your revised and edited reflective journal entries as well as evidence that you have read widely on the topic you are covering. you should refer to articles and texts that are on the reading list and on the ereader. you are expected to engage in an intellectually reflective analysis of what these writers have said about certain topics. the portfolio may also contain newspaper cuttings, tables, graphs, cartoons, quotes, notes about films and television shows, descriptions of conversations, and anything that relates to your placement experience or topics covered in class. it will be a bit like a scholarly scrap book. all work of which you are not the author must be properly attributed in footnotes and a bibliography. the portfolio is not intended to consist of anecdotal recitation of activities. it is intended that the portfolio consist of students' observations and insights into their experiences on placement in the context of the specific topics that we cover in classes. in particular, the portfolio must show your development as a reflective learner. you are expected to select and describe experiences, analyse what happened, why it happened, what you learned from it, and how you would approach it next time. honest and constructive analysis of one’s own and others’ performance, and the ability to take control of your own professional development is an integrally important part of the reflective learning process of any professional, and should be discussed in the portfolio. your reflections must be critical reflections, not merely descriptive. the portfolio must contain: 1) two of the following written items: 1.1 a reflective analysis of an ethical issue that arose within your placement, including an analysis of relevant articles and texts. 1.2 a reflective analysis of an access to justice issue that arose within your placement, including an analysis of relevant articles and texts. 1.3 a reflective analysis of a law reform issue that arose within your placement, including an analysis of relevant articles and texts. 1.4 a reflective analysis of a client-centred practice issue that arose within your placement, including an analysis of relevant articles and texts. 1.5 a reflective analysis of a client interview, including an analysis of relevant articles and texts. 1.6 a reflective analysis of your view of the role of lawyers in society in the context of your placement experience(s), including an analysis of relevant articles and texts. and 2) two of the following written items: 2.1 a reflective analysis of your preparation for the placement. this should include an analysis of your motivation (identifying what you wanted to achieve), your intentionality (planning your learning), your leaning objectives, self-awareness (identifying strengths and limitations) and your adaptability (preparing for the uncertainty of the workplace) and a critical reflection on the adequacy of your preparation. 2.2 a reflective analysis of your personal goals for the placement and whether or not you have achieved those goals or perhaps changed the goals as the term progressed. this analysis should include reflection on your own learning, your performance in the placement and your achievements, as well as plans for personal, educational and career development. 2.3 a reflective analysis of an incident during your placement which involved you considering your personality type and your learning style compared with the personality of someone else at the placement office. each item must be clearly identified under one of the above headings. each item may contain information or reflections from more than one day, especially if the incident took place over several days, or you want to talk about a series of events. you are also expected to integrate the material discussed in seminars with your reflections about your placement experiences. even though this is quite a personal piece of work you are still expected to write formally and to use proper footnotes and cite all articles correctly. remember that you will need to edit your work stringently. the writing is the first part of the job. editing it properly will take longer than the actual writing. the portfolio will be assessed according to the following criteria: 1) ability to identify and focus on salient issues from each situation; 2) analysis of your own perspective and the perspectives of others; 3) use of a variety of resources in order to analyse the situation and to cite them appropriately; 4) ability to place the event(s) or situation(s) in the context of broader social, political and professional perspectives and to analyse how these perspectives influence the event or situation; 5) identification of the learning that you have achieved and your learning needs; 6) ability to write clearly and coherently. appendix 5 list of literature for students egan, g. (2002) sharing empathic highlights: communicating and checking understanding, the skilled helper: a problem-management and opportunity development approach to helping, pacific grove, california: brooks/cole publishing co., chapter 6, pp 93-116. ellmann, s. (1987) lawyers and clients, 34 ucla law review 717 binder, d. and price, s (1977) extracts from ‘legal interviewing and counselling: a client-centred approach’, st. paul, minn.: west pub. co. wasserstrom, r. (1975) lawyers as professionals: some moral issues, 5 human rights 1 hyams, r, campbell, s, evans, a. (2014) ‘interviewing’, practical legal skills 4th ed., south melbourne, victoria: oxford university press. allegretti, j. (1993) ‘shooting elephants, serving clients: an essay on george orwell and the lawyerclient relationship’, 27 creighton law review 1. ipp, d.a. (1995) judicial intervention in the trial process, 69 (5) australian law journal 365 genn, h. (1993) tribunals and informal justice, 56(3) the modern law review 393 luban, d. (1988) the case of the wicked uncle, lawyers and justice: an ethical study, princeton n.j.: princeton university press, 3-10 nicholson, r. (2005) can courts cope with self-represented litigants? 8 (2) flinders journal of law reform 139 rhode, d. (2004) access to justice: connecting principles to practice, 17 georgetown journal of legal ethics 369 wertheimer, a. (1998) ‘the equalisation of legal resources’, 17 (4) philosophy and public affairs, 303. sarre, r. and vernon a. (2013) ‘access to safe justice in australian courts: some reflections upon intelligence, design and process’, 2 (2) international journal for crime, justice and social democracy. thompson, e. (2011) ‘does the open justice principle require cameras to be permitted in the courtroom and the broadcasting of legal proceedings?’ 3 (2) journal of media law 211. burgess, s. (2010) ‘aboriginals in the courtroom: recognising cultural differences’, bulletin (law society of south australia), 12-14. minow, m. (1991) ‘breaking the law: lawyers and clients in struggles for social change’, 52 u. pitt. law review 723. young, i.m. (1991) ‘professional ethics and social change: a response to minow’, 52 u. pitt. law review 859. luban, d. (1991) ‘conscientious lawyers for conscientious lawbreakers’, 52 u. pitt. law review 793. balos, b. (1997) ‘the bounds of professionalism: challenging our students, challenging ourselves’, 4 clinical law review 129. ogilvy, j.p. (1997) ‘the use of journals in legal education: a tool for reflection’, 3 clinical law review 55. aaronson, m.n. (2002) ‘thinking like a fox: four overlapping domains of good lawyering’, 9 clinical l. review 1. silver, m. (2006) ‘the professional responsibility of lawyers: emotional competence, multiculturalism and ethics’, 13 journal of law and medicine 431. spigelman, j. (2011) ‘truth and the law’, 85 australian law journal 746. margulies, p. (1990) ‘“who are you to tell me that?” attorney-client deliberation regarding non-legal issues and the interests of non-clients’, 68 n.c. l. rev. 213. aiken, j.h. (1997) striving to teach justice, fairness and morality’, 4 clinical law review 1. james, c. (2011) ‘law student well-being: benefits of promoting psychological literacy and selfawareness using mindfulness, strengths theory and emotional intelligence’, 21 (1/2) legal education review 217. berger, l. (1999) ‘applying new rhetoric to legal discourse: the ebb and flow of reader and writer, text and context’, 49 journal of legal education, 155. giddings, j. (2013) ‘promoting justice through clinical legal education’ (e-book) melbourne: justice press. margulies, p. (1994) ‘the mother with poor judgment and other tales of the unexpected: a civic republican view of difference and clinical legal education’, 88 northwestern university law review 695. 310229_april ed 2 inner ‘bridging the academic/vocational divide: the creation of a law clinic in an academic law school’ frank dignan, practising barrister; director, university of hull law school legal advice centre in january 2009 i joined the law school at the university of hull. my main responsibility has been the establishment and development of a public serving law clinic providing free, confidential and independent legal advice to the local community. clinic became operational from january 2010 and will be offered as an assessed module as part of the llb degree, from september 2010. hull is a traditional ‘red brick’ university. it has a highly rated research profile in such areas as international law, european public law, commercial law, maritime law, and restorative justice. it possesses an enviable reputation in the sphere of socio-legal, and politico legal issues. it does not have a tradition of professional legal education, and as such is still relatively unusual in deciding to establish a law clinic. the purpose of this paper is to discuss the academic context of the new clinic, its social importance to the wider hull community, and how this relates to its aims and its relationship with the law school. the advantages to the law school which are presented by the clinic project are clear. students are able to apply knowledge gained on the law programme, to practical situations. it enables the development of research and drafting skills. there is contact with real people involved with real cases. the students have front line responsibilities for a live client, this inevitably means that students will gain experience of ethical issues, such as; professional conduct, confidentiality and conflicts of interest. law clinic has undoubtedly raised the profile of the university and the law school within the city of hull and the wider area. it meets the university’s commitment to community engagement. it makes the university part of the community in a very real sense. the public benefit takes the form of the advice and assistance given to disadvantaged groups in society. it facilitates bridging the academic/vocational divide 75 empowerment on the basis that the better informed people are, then the better able they are to manage their own affairs. this is in line with the government cohesion agenda and its policies to promote social inclusion. our activities should be seen against the background of changes to the provision of free legal advice in hull which took place in 2008. the ending of local authority funding, £700,000, to the cab(citizens advice bureau) was contentious. a clac(community legal advice centre) came into operation in october 2008. it functions as part of a tri-partite arrangement between the council, a4e(action for employment, a social enterprise organisation) and howells solicitors from sheffield. by the end of this year a clan, (community legal advice network) will be up and running in the east riding of yorkshire (eryc) council area. the clan will also provide one stop generalist help, with specialist issues referred to legal aid franchise solicitors. the location of the clac in the centre of hull means that bus fares have been identified as an issue for some people. the clac, and the clan, will inevitably be target driven which is obviously not a priority with the service which the law school provides. advice at the clac is time limited and a number of opinion leaders identified a lack of generalist advice as a problem. the specialist legal advice offered is that which is available through an ordinary legal aid franchisee. it has been suggested that the intention is to deliver the clac through council customer care centres. this could potentially compromise the independent character of the clac in that the council could be the source of some of the complaints. there does appear to be a gap in provision which was previously met by the now closed, humberside law centre. the developments however presented clinic with a number of opportunities. cab is a strong brand name, and was keen to work as one of our partners, in the referral of their clients to clinic. similarly both clac and clan are useful in that we have tentatively explored the possibility of them providing work based placements as part of our curriculum. this is something that can be further pursued with the legal services departments of both hull, and eryc. alignment with clac/clan could enable marketing as part of wider advice services in the hull area. our hope is to be seen as established advice providers. ongoing discussions take place with both the clac and the cab about a collaborative approach. the clinic gives students the opportunity to develop transferable skills. it provides for an integrated approach to study, combining formal knowledge with the experience of practice. students will be able to utilise legal knowledge and disseminate this in a practical situation. the learning process is largely experiential. it will marry the theory and the legal rules which have been learned, with the development of interpersonal skills. it will seek to improve students’ capabilities. the law is a social function and its practice is a social practice. it has got to be seen in its social and economic context. places of legal education cannot be isolated from the practical world of work and life. nor can law students. they have to be connected closely to the real world. law students may well be exposed to a variety of issues that impinge disproportionately on poorer members of society, such as poor housing, benefit dependency and socio-economic disparities. these may well be pronounced given the widening gap between rich and poor as well as the array of social problems which beset society. students will learn how the law operates and how it can solve problems. they will learn how to relate to clients, how to listen and extract legally relevant information. they will be given the opportunity to translate their complex knowledge into advice which is simple and understandable. 76 international journal of clinical legal education summer 2011 they will have the chance to gain a deeper understanding of their community and the kind of problems or issues which are important to people with whom they may not ordinarily come into contact. not only will they learn the importance of basic practical skills such as recording and storing information. they will be able to reap the rewards of voluntary work and the satisfaction of giving something back to their community. at a higher level the students are involved in a process of participation and democracy. other requirements will prepare the students for the world of work in any setting. the need for punctuality, for appropriate dress, for observation of rules about confidentiality, discretion and politeness. collaborative work based learning enhances employability. one of the aims of legal education should be the laudable one of helping to create a ‘better society’ (johnstone 1999). it is probably not going too far to say that there is a ‘moral dimension’ to disseminating an understanding of law and its functions to a wider social audience (economides 1998). the social benefits are that clinic makes legal advice accessible to those to whom it might not otherwise be available, often due to lack of means. these could include the following groups: the unemployed and people on low incomes people with long term illness or disability young people, including those leaving care older people gypsy/ traveller communities and migrant workers people with problems relating to accommodation (including those in temporary accommodation) victims of violence, including domestic violence single parents hull undoubtedly suffers above average levels of urban deprivation. in 2008 it saw the highest increase of any uk city in the number of people claiming jobseekers’ allowance. a centre for cities report in january 2009, identified long term problems of high employment and large numbers of people with no qualifications. hull has been revealed to be the british city with the highest rate of youth unemployment, with 9.85% of under 25s claiming jobless benefits in may 2009. one other striking statistic is that 34% of hull’s workforce actually lives in the neighbouring east riding of yorkshire local authority area. in addition to providing a service for clients, the law clinic has a number of other social objectives. in addition to informing people of their rights and providing an opportunity to resolve legal disputes, it may be able to prevent legal problems from arising by identifying and addressing issues that repeatedly cause problems for clients. clinic also provides a referral process ensuring wherever possible that clients receive necessary advice from whatever sector that might be. in a society which has become significantly less socialised, it is not too lofty a social ambition for the establishment of a law clinic to be seen as partly about the engendering of a spirit of civic virtue. bridging the academic/vocational divide 77 our approach areas of advice after taking up my post early in january i had meetings with various local representatives, mps, prospective mps, councillors of all parties, cab, officers of the clac and the clan, hull civic society. the head civic engagement at hull city council, and community leaders in various parts of hull. in seeking to determine areas of law where we should offer advice, and trying to identify gaps in existing provision, certain topics perhaps not surprisingly recurred; welfare benefits re-possessions landlord and tenant redundancy debt management these areas are roughly in line with the lsc social welfare categories; debt, employment, housing, welfare benefits, community care we discounted the possibility of dealing with family cases which can be difficult and emotional, and because often the outcome of such cases can lead to recriminations. likewise we decided not to offer immigration advice, in the short term at least. notwithstanding we are able to refer such cases where clinic is unable to deliver advice in a category of law, to other legal advice providers or appropriate practitioners. where there is a problem of a non legal nature, information is given to a client on the best place to go to resolve their issue (signposting). there needs to be an overlap between the service which we provide and areas of staff expertise. in other words we play to our strengths. we are fortunate to have expertise in areas such as consumer, housing, mortgages and employment. type of service types of service can be broken down into 3 main activities, advice, casework, representation. we do not intend to offer representation, at least not in the short term. we do not want to bite off more than we can chew. the standard of service is essential. quality must be good. we should start small, develop an expertise and gain a reputation for providing a reliable service for free, confidential, independent legal advice; before considering expansion into other areas of law or greater levels of service. we should aim to provide advice in the following areas; welfare benefits, housing (landlord and tenant, re-possessions), consumer, employment, generalist civil. the general level advice that will be provided will include: 1. provision of information and initial advice 2. provision of options available to the client 78 international journal of clinical legal education summer 2011 3. identification of further action the client can take 4. assistance filling in forms eg. council tax benefit, job seekers allowance 5. helping to draft letters 6. making enquiries on behalf of client eg. with the benefits agency there was considerable support for this venture from the faculty and the law school, particularly from the head of school. we have been well served by being fortunate enough to have the assistance of a part time member of staff who has extensive contacts within the hull legal community. his knowledge and first hand experience has been invaluable, in gaining access to the local profession and establishing communication links which have proved useful. we have recruited a member of the local bar to our advisory panel, along with local solicitors. a prominent local firm of solicitors has participated in terms of student training and supervision on a pro bono basis. we have been offered a reciprocal arrangement with a firm of solicitors, which has proposed a possible referral fee for taking cases to them. our overall strategy was to inform the likely interested parties of what we were about, what we intended to achieve and to explain how we wanted to work in partnership and collaboration with other like minded individuals and bodies. training i met twice with prof. richard grimes, a rightly respected expert in the area of cle, which i found highly instructive. he provided training sessions for staff and students. participating students underwent extensive training. we worked closely with the college of law at york, which ran taster sessions on legal advice clinics for us. location we confined our activities to the city of hull at least in the first instance. in addition to holding advice clinics on campus, on a regular basis, we intend to provide clinic on an outreach basis at various locations in the community. these will be run at community centres which serve large housing estates. it has been suggested that we ‘piggy back’ clinic on to other ongoing activities, for example running clinics at sure start bases. health and safety meetings were held with the university’s health and safety officer to prepare a risk assessment in terms of staff and student involvement both on campus and for outreach work. insurance enquiries with the university insurance officer identified no problems. clinic activity is covered as part of the curricular education provided in our role as a higher education institution. bridging the academic/vocational divide 79 resource requirements the following space provision was allocated: waiting area interview room student base/ admin office other costs computers telephone practitioner texts eg.welfare benefits law, housing law guides from legal action group, shelter organisation 24 students organised in ‘firms’ of 6 fitting in to the formal curriculum clinic to be incorporated as a long, thin elective module in year 3, starting october 2010. before that we plan to have a pilot scheme which is extra curricular but which ran for 4 months as a dress rehearsal. selection procedure the module was over subscribed. at some universities an essay is required from each prospective participant. at others only those students who list the module as their first choice, are first considered for the module. priority was given to students who demonstrated a commitment by participation on a voluntary basis and who took part in training sessions. we also looked at participation in the various competitions, eg. mooting, negotiation etc. assessment 1. by way of reflective log and project review of a student’s experiences whilst taking the module. this will be based on contributions evidenced by the student file, attendance and participation in ’firm’ meetings. 50% of marks. 2. case study including a critical analysis of legal issues raised by the particular case. 50% of marks. 80 international journal of clinical legal education summer 2011 publicity one of the challenges of a new initiative in a large organization like a university is ensuring public and institutional awareness of the service while not inappropriately raising expectations. we managed to produce some of our own marketing material but also relied on a range of free publicity which was available due to the level of interest in a new pro bono legal service. the outlets we used eventually included: ‘hull daily mail’, the leading regional newspaper weekly advertisers, local free papers bbc radio humberside, the local radio station bbc ‘look north’, regional news programme posters flyers other activities we have a successful street law project which has seen student groups visiting schools and hmp hull to do presentations. the prison recently opened a family centre where a number of different organizations operate, eg pct, alcohol awareness etc. the family centre is keen for lac to become part of the services which they offer. it is still the intention that once lac is firmly established as an on campus provision, that progress is made to deliver the advice function on an outreach basis. key characteristics of the law school advice clinic the clinic was established for sound educational reasons but the process of development has thrown up some key service issues which are starting to shape the nature of the clinic and how it may develop in the future. 1. quality of service to be provided: staff expertise, supplemented by support of other stakeholders; other advice providers, partner law firms. 2.accessibility, in particular with hard to reach groups 3. impartiality in terms of not being part of the local authority or being in receipt of financial support from a government department; being strictly independent. to conclude, the establishment of a law clinic will fulfil two key objectives. not only is it socially desirable that all members of society have access to justice but clinic will provide an opportunity for students to think about the practical aspects of the provision of legal services to those who cannot pay for them. it will allow practical knowledge in social perspectives and therefore enhance academic understanding. active practical work will have the benefit of making students into better academics. bridging the academic/vocational divide 81 what happened in practice ? who needs jack straw anyway despite our best efforts to have the then justice secretary / lord chancellor perform the official opening of the legal advice centre, it was not possible for him to attend. however, we were fortunate in that one of our local mp’s was also a prominent member of the cabinet, and was able to be present. the legal advice centre was officially launched on friday 19th feb by the home secretary, rt. hon. alan johnson mp, in the presence of the lord mayor and the vice chancellor. by common consensus the event was a resounding success, attended by a large number of representatives of the various statutory and voluntary agencies in hull. the chief crown prosecutor, representatives of the probation service, hmp hull and both hull city council and the east riding of yorkshire council were there. the cab and martin curtis from law works were also present. members of the local legal profession, many with links to the law school, were also represented. much positive publicity both for the legal advice centre and the law school in general, was generated. the centre opened for business on wednesday 24th feb. we dealt with 11 cases in that first afternoon, it was a busy first session but a successful one. the students who dealt with a wide variety of types of case responded well and conducted themselves in a professional way. the centre was certainly a hive of activity. the pilot extensive training was provided for students, on a compulsory basis, for those participating in the legal advice centre. sessions were provided by members of the law school staff dealing with areas of specialism e.g. mortgages, landlord and tenant, and consumer. the cab provided training on debt and the local council about welfare benefits. local practitioners, in this case hull graduates, ran sessions on client care. a full day session was facilitated by prof. richard grimes. 24 students have been involved in the lac, divided into ‘firms’ of 6. i have fulfilled the role of supervising solicitor, ably assisted by a part-time member of staff who is a well known hull solicitor. we have also been served by one of our post graduate students, who has a number of years pqe as a solicitor. furthermore 2 other students worked as volunteers. the students response has so far been excellent, with commendable levels of enthusiasm (which sometimes has had to be curbed a little), and commitment. the feedback from service users has also been favourable. since the legal advice centre opened to the public it has dealt with over 70 cases. these have involved a wide range of legal issues about which we were asked to advise. under the social welfare categories used by the legal services commission the numbers in respect of the various categories are as follows: • debt – 3 cases • housing – 19 cases • welfare benefits – 2 cases 82 international journal of clinical legal education summer 2011 • employment – 5 cases • community care – 1 case other cases not covered by the lsc classifications include: • consumers – 15 cases • family & matrimonial (including csa) – 17 cases • criminal – 2 cases • personal injury – 7 cases • environmental – 1 case • immigration – 1 case • disability discrimination – 2 cases the module we have obtained approval to run clinic as a module from september 2010, with a first cohort of 24, final year students. assessment will be based on student attendance and participation, the maintenance of a learning log/journal, and the submission at the end of the module of a written piece of work in the form of the case study of a legal issue encountered whilst participating in the lac. training in anticipation of the module has been organised, supplemented by sessions from the local trading standards dept. and from a welfare rights practitioner specialising in csa cases. lessons learned 1. we operated an appointment system but also had a drop in facility. this proved difficult to manage and at times we were somewhat overstretched, given the number of clients with which we had to deal. it has been decided to restrict our service to appointment only, so as to be better able to both plan ahead and manage demand. 2. the value of using local media was shown by the positive effect of the coverage which we received about the opening of the lac. pieces were done for local commercial radio stations and an on air interview for bbc radio humberside’s afternoon drive-time programme, on the day of the opening. lac was also featured on bbc tv ‘look north’. the ‘hull daily mail’ was also a useful outlet. in addition to coverage of the official opening, a follow up feature ‘behind the headlines’ stimulated interest and generated more lac clients. 3. the lac has succeeded in developing mutually advantageous relationships with existing advice providers in hull and the surrounding area. the cab as well as being the main provider of advice services in hull, has been awarded the contract to run the community legal advice network (clan) in the beverley based, east riding council area. both the cab and hull’s community legal advice centre (clac) have assisted with the training of students in preparation for the commencement of lac operations. the clac have offered the use of an office at their headquarters in hull city centre for use by our students as part of any future outreach work we may undertake. likewise hmp hull have offered accommodation at their recently opened family centre for advice surgeries to be run. these opportunities, together with similar requests for clinics to be run at various community centres, may allow for expansion of our activities in the future. bridging the academic/vocational divide 83 4. the clac is to make their staff training sessions available to our students. we already have access to their benefit hotline in terms of obtaining information for benefit claimants in need of urgent help. the lac has become a partner organisation of the dwp sponsored financial inclusion initiative, which has the objective of promoting the use of credit unions. we have also joined the humberside civil justice forum which is headed by hull’s designated civil justice judge. this multi agency, cross disciplinary partnership approach recently enabled the law school to place one of our students, a participant in the lac; on an hefc funded internship scheme, with the legal services dept at hull city council. the lac has made a good start, so far so good. we intend to build slowly but surely to become a recognised part of the undergraduate education, as well as making local impact. post script hull university legal advice centre has been shortlisted in the annual lawworks attorney generals pro bono awards 2011 for best contribution by a law school. bibliography johnstone j.g. ‘liberal ideals and vocational aims in university legal education’ (1999),web journal of current legal issues in association with blackstone press ltd. economides k,(ed) (1998) ‘ethical challenges to legal education and conduct’ (oxford: hart publishing) ‘new report reveals uk cities most exposed to recession’ centre for cities, 26 jan 2009 frank dignan july 2010 84 international journal of clinical legal education summer 2011 in te rn a tio n a l jo u rn a l o f c lin ica l le g a l e d u ca tio n s u m m e r 2 0 1 1 p a g e s 1 –8 4 from the field the italian legal clinics movement: data and prospects clelia bartoli, università di palermo, italy; european network for clinical legal education, (encle) cleliabartoli@libero.it 1. the inquiry it is not more than 5 years since legal clinics were founded in italian universities: a very recent history indeed and similar to that of other western european countries 1. i will try to explain this through some data collected by an inquiry that i ran in order to have a more detailed map of this phenomena and to conjecture its future evolution2. the survey i submitted to the italian clinics is composed mainly of multiple choice questions with some open-ended questions. it is divided into six sections: a) general description of the clinic; b) economic profile; c) the educational issue; d) areas of interventions and types of clients; e) the network; f) its social impact. the survey was sent to all directors of italian law departments with a letter where they were requested to readdress it to the head of the legal clinic, where these existed. 21 clinics, placed in 13 different towns, have completed the survey: among them are both established and fledgling clinics (fig. 1-2-3). there may be some facts that escaped my enquiry. however, i believe that i can offer a suitable overview of the situation in the country3. anyway we must consider this as a state of affairs in ferment, which is highly changeable. 1 u. stege, evidence of successes and challenges in clinical legal education in europe, in press. 2 i would thank marzia casolari and ulrich stege very much for their important support and wise suggestions. this research is part of a larger inquiry on european legal clinics, conducted with the encle collaboration. it has been required and sponsored by cécile kyenge, member of the european parliament and former italian minister for integration. 3 last updating: may 2015. as far as i know what remains outside of my inquiry is: a) the branch of “l’altro diritto” in emilia romagna, but its answers would be almost the same as the tuscany headquarters and b) a legal clinic with six different specializations in “università cattolica di milano” started at the end of 2014, it is hosted in a private university unlike the others i recorded. not all agree to define that a clinic because it proposes mainly simulations based on real cases already closed, so the students do not come in contact with live clients; c) i am also informed the law departments of bologna and catania are planning to open new clinics. mailto:cleliabartoli@libero.it in the following paragraphs i will present the data inquiry and i will try to explain the process of establishing the italian movement for legal education, its options and challenges. it is worth pointing out why i use the term “movement”. what is going on in italy, and i think elsewhere, is not simply the proliferation of single clinics, but the emergence of a new wave in academia. on the basis of the clinician idea and history, italian scholars involved in this process are formulating a different way to teach law, and a different view of law too. i think it is not by chance that many of the pioneers of clinical education have a philosophical background or a highly speculative approach. it would seem strange that such a practical teaching style is promoted by the most theoretical part of the law faculty staff. the reason for this is probably that the clinician approach needs a paradigm shift through a more realistic, critical and socially committed conception of law. 2. the italian clinics clinics at least four-years-old are located in a few towns (brescia, roma, torino). in bergamo, teramo, perugia and verona clinics have existed for two or three years. we have to note the particular case of “l’altro diritto”. this is an association founded in the university of florence about twenty years ago and, even though it never called itself a “legal clinic” it has always performed in a similar way. at the beginning, the students were involved in providing legal aid for the detainees of some tuscan prisons. in addition, over time, “l’altro diritto” has developed a large number of activities and projects in favour of migrants, refugees, romas and every kind of exploited and excluded people in different towns of central italy, where hundreds of law students and other volunteers are engaged. this association is also a documentation centre, legislation observatory and it produces drafts for social policies. recently it has opened a sicilian branch connected with the human rights phd of the university of palermo. after many years of informal clinician work, “l’altro diritto” has decided to give to a part of its pursuits the status of legal clinic. i have chosen to enclose this association in my survey, not only because “l’altro diritto” was acting as a law clinic, but because it plays an important role in the italian movement for clinical education thanks to its experience and extent. fig. 1 – established clinics name age university department staff l'altro diritto: centro di documentazione carcere, devianza e marginalità 19 dipartimento di scienze giuridiche, firenze 100 clinica legale, univ. di brescia 5 univ. degli studi di brescia dipartimento di giurisprudenza 30 clinica legale i e ii, univ. di brescia 5 univ. degli studi di brescia dipartimento di giurisprudenza 15 clinica del diritto dell’immigrazione e della cittadinanza 5 dipartimento di giurisprudenza, università roma tre 10 human rights and migration law clinic 4 international university college of turin, dg dell'università di torino, università del piemonte orientale 15 clinica legale in diritto dei minori 3 dipartimento di giurisprudenza, univ. roma tre 6 clinica legale di diritto del lavoro 3 università degli studi di teramo 4 diritto ambientale 3 università degli studi di bergamo 2 clinica legale penitenziaria 3 università di perugia, dipartimento di giurisprudenza 15 clinica legale in diritto dei risparmiatori 2 dipartimento di giurisprudenza, univ. roma tre 2 salute, ambiente e territorio 2 dipartimento di giurisprudenza, univ. di perugia 9 clinica legale verona 2 diparti. di scienze giuridiche, università di verona 8 carcere e diritti 2 dipartimento di giurisprudenza, univ. di torino 6 persone e famiglia 1 dipartimento di giurisprudenza, univ. di torino 1 fig. 2 – fledgeling clinics name university department staff clinica legale per i diritti umani digispo palermo 10 spazi violenti. l'empowerment e accesso al diritto delle persone svantaggiate dipartimento di giurisprudenza, università di torino 5 clinica legale di diritto penale dip. cesare beccaria sezione di scienze penalistiche. università di milano 8 da definire dipartimento jonico di studi giuridici ed economici 30 clinica legale "federico ii" dipartimento di giurisprudenza, federico ii, napoli - accesso alla giustizia dipartimento di giurisprudenza dell'università di sassari - da definire dipartimento di sc. sociali e politiche, univ. di milano 5 as can be seen from the map (fig. 3), the concentration of clinics is more in the centre and in the north of italy, but some clinician projects are growing in the south too. fig. 3 –territorial distribution 3. economic profiles money is not the brightest aspect of this story. italian clinics work with extremely low budgets. 35% of them assert that their coffers are empty (of course among these there are the fledgling clinics seeking grants to start), 24% have an annual income under 10,000 €. the remaining 29% have a budget around 15,000 € or a little more, and in any case there is not a clinic performing with 40,000 € or more per year (fig. 4). turin brescia milan bergamo verona florence perugia teramo roma sassari naples bari palermo  established clinics  fledgling clinics fig. 4 – budget in contrast with the united states, but in common with most of europe, in italy a clinical teacher does not have a peculiar professional profile and there is not an allocated budget of law faculties. in this respect it is very interesting to consider the explanation given by ulrich stege: «in contrast with continental europe, legal clinics in the u.s. system of legal education traditionally play an important role. clinical methodology is deeply rooted in a teaching philosophy based on “learning by doing.” if we add to that the fact that legal education in u.s. law school lasts for three years and that in this short period of time students have to learn both theory and practice because there is no mandatory apprenticeship during which they prepare for practice, it is quite understandable why clinics play such an important role in the u.s. system of legal education and why they are still marginal in a number of continental european countries». 4 moreover, cuts in education, the really low level of public and private investment for research and the debt exposure of many universities in italy make the daily survival of these clinics more difficult. the scholars who work at a law clinic offer an additional service, generally without any economic bonus. it is not uncommon for the professor to use funds earmarked for his or her research to allow a clinic to survive. the precarious 4 u. stege, evidence of successes and challenges in clinical legal education in europe, quoted. minuscule budget 35% € 10,000≤ 24% 10,000≥ 20,000 29% 20,000≥ 30,000 6% 30,000≥ 40,000 6% 40,000≥ 0% staff involved in academic jobs, meaning with a short contract or even without one at all, often work in the clinic for no pay. those who have funds for their activities generally utilize the university’s money. 8 clinics out of 21 integrate their budget with donations from private foundations and institutions, mainly open society, but this is not the only one (fig. 5). the other forms of income are residuals, but it could also be promising to compete for european and international grants, also because this promotes supranational networking. fig. 5 – where do the funds come from? nearly all the respondents wish to compete for european union grants with a project related with clinical education. but most of them did not find the right call. 7 clinics out of 21 applied but only 3 were successful (fig. 6). although until now, few clinical projects with a european partnership were approved, going forward we can expect an improvement in the economic situation if the italian clinics enhance their fundraising skills, identify the most appropriate measures among union projects and join in a more proactive national and international network able to plan and achieve more ambitious goals. 4. educational aspects the relatively “senior” clinics involve a good quantity of youth in training, the vast majority are law students, but there is a significant number enrolled in other faculties, furthermore graduates, phd students and post-docs participate in clinical activities too. 0% 10% 20% 30% 40% 50% 60% 70% university public insititutions european projects donations and foundations no budget this would seem to suggest a capability both to face the clients’ situation with an interdisciplinary approach and also to gain and keep students after their degree. clinical legal education in italy is lacking institutionalization, therefore each project must find its own modus operandi and its peculiar solution to stay in the official curricula. so, clinical experience assumes many forms in the different universities, it can be: a) a short seminary with credits; b) one of the optional classes required to complete the path for the degree; c) a way to fulfil the compulsory training or a part of the internship period required to became a lawyer5; d) a post-degree course; e) voluntary work (fig. 7). fig. 7 – benefit for students enrolled into clinical activities due to the variety of ways in which clinical education is offered in the different universities, the number of credits and the required hours differ a lot: we start with a short course of only 10 hours to a long term one of 300 hours. anyway, the average is 40/50 hours corresponding to some 6 credits. of course the time officially scheduled is usually less than the real time taken up in the clinical work. so the credits normally underestimate students’ and teachers’ commitment. for this reason participating in a legal clinic needs a strong motivation and it is never compelled. it is also worth mentioning that 4 clinics give a small wage or scholarships to the students more engaged in the law clinic's management. 5 the law n. 247 of 31st december 2012, title iv, c. i (“professional training”), art. 40 establishes that law faculties, in partnership with the bar, have to offer students the opportunity to do 6 months out of 18 of the compelled internship before the degree. usually the student does the internship in law firm without any academic relation, but in some universities the clinical experience is considered valid as pre-degree internship. 0 2 4 6 8 10 12 14 16 18 credits granted training small wage other probably there is an overabundance of clinical education paths, because this is a very new phenomenon, there is an absence of funds, standards and norms ruling this sector of legal training, it lacks a settled habit or a strengthened model to follow. on the other hand the italian clinics show a high level of creativity and experimentation. each work team – although it has to tackle many obstacles and the tight budgetary situation – builds operative models focusing on the local specificity and optimising the staff’s competences. it needs to be pointed out that, despite the variety of organizational patterns, the educational methodology is what is shared among all the italian law clinics. the directors of the older clinics like the spokespersons for the fledgling ones aim to give precedence to an interactive teaching. in fact, none utilize initial lectures largely, but instead they use more activities such as role-playing games, brainstorming, case by case, videos, meetings with the protagonists of the issues addressed, lessons in contexts outside the university, and of course above all participation in the resolution of real cases in collaboration with lawyers (fig. 8). fig. 8 – learning experiences proposed 0 2 4 6 8 10 12 largely partially few or nothing in this section, the last question aimed to gauge points of view about the impact on students of the involvement in clinical activities. more than half of respondents were shown to be very optimistic, asserting that this experience grew both professional chances and ethical responsiveness. four clinics admitted that they could not foretell the implications on students’ life due to a lack of data. 15% believed this form of education definitely permits human development, but because of the dramatic unemployment crisis of the country they cannot assume a rise of professional opportunities. only two clinics trust in a greater employability, without a certain moral development. it is no accident that one of those is the only clinic specialized in company and banking law. that is certainly the only one not committed to the social justice mission. as in some american law schools, it sees the clinical activity more as an effective teaching method rather than an opportunity to aid vulnerable people and to act in the public interest. fig. 9 – opinions on the impact of clinical experience for the students 15% 10% 55% 20% there is certainly an impact for the human development of the student, but not necessarily greater employability they acquire more skills and opportunities in the professional field, but not necessarily more ethical sensitivity students acquire both professional opportunities and a commitment to social justice there aren’t enough data to detect 5. areas of intervention and types of "clients" as i warned with the results of the last question in the previous paragraph – monitoring the areas of intervention and the types of clients – it is evident that almost all the italian clinics have a strong vocation for social justice. in fact they propose a legal training through the methodology of learning by doing, but also they aim to deconstruct the university as an aseptic fortress, an ivory tower of "navel-gazing" theory afraid to engage with harsh reality. scholars who decide to become involved in a legal clinic generally undergo the alienation and the feeling of uselessness that can sometimes go with academic work. for this reason they consider essential a civic commitment of cultural institutions. so, it is no wonder that areas of intervention where the italian clinics are more dynamic are: migration and asylum, detention, antidiscrimination and human rights (fig. 9). fig. 9 – areas of intervention consistent with the declared areas of intervention, the clients belong to different vulnerable categories such as: indigents and marginalised persons, prisoners, migrants, romas, asylum seekers and refugees, but also associations working for human rights and environment (save the children, caritas, asgi, wwf, etc.) (fig. 10). 0 2 4 6 8 10 12 fig. 10 – clients the main activity that italian clinics propose to students is litigation in collaboration with lawyers. at the same time, delivering legal advice in-house to live-clients is very frequent too, both directly for persons in need and indirectly via associations, insitutions and law firms. 8 clinics have carried out monitoring projects and 7 declare doing street law. although only 4 clinics attend to production of law drafts, reviewing of regulations and design of innovative policy (fig. 11) i believe that is a very promising pursuit. in this case, in fact, the clinic performs as a think tank specialized in law for social justice, the peculiar research capacity of the academy is acknowledged and optimized and it makes the jurist’s role wider and his commitment more proactive. fig. 11 – activities 0 2 4 6 8 10 12 0 2 4 6 8 10 12 14 litigation direct legal advice undirect legal advice street law holistic taking charge monitoring draft production other 6. european relevance the relevance of european law in the italian clinics’ daily work is significant, even if it could be more propelled: it results low for 34%; medium for 19% and high for 48% (fig. 13). fig. 12 – relevance of the european law in the clinical activities on a scale of 1 to 5 lamin kadhar, in a good paper titled why the eu should take note of europe’s newest legal clinics, says: "studies consistently show that people residing in the eu (especially members of marginalized groups) face considerable obstacles in accessing their eu law rights. there seems to be both a knowledge gap and skills gap separating the people of europe and their eu law rights. […] the knowledge gap amongst individual rights-holders is exacerbated by a skills gap within the legal profession. although there are increasingly more eu law specialists, their services are expensive and they are often unwilling to take on unprofitable, simple and run-of-the-mill eu law queries. beyond this group of specialists, most domestic lawyers avoid the vast and seemingly exponentially increasing body of eu law". 6 after this analysis the author presents the movement for clinical education as a good opportunity to improve human rights in europe, through the training of a new generation of lawyers more socially conscious and more skilled in eu law. 6 l. kadhar, why the eu should take note of europe’s newest legal clinics, in www.encle.eu, 2014. http://encle.org/news-and-events/news/25-why-the-eu-should-take-note-of-europe-s-newest-legal-clinics http://encle.org/news-and-events/news/25-why-the-eu-should-take-note-of-europe-s-newest-legal-clinics http://www.encle.eu/news-and-events/news/25-why-the-eu-should-take-note-of-europe-s-newest-legal-clinics developing a vision of the possible role of clinical education on the european stage is particularly important and urgent in an on-going process of institutionalization and definition of standards, where the mission is partially still open. starting from and expanding khadar’s proposal, in the survey i have suggested five potential impacts of the clinics in the eu context on human rights protection: a) to contribute to the formation of a new generation of attorneys/lawyers who are eu law experts; b) to enhance the access of disadvantaged people to rights guaranteed by eu legislation by providing opportunities for pro bono legal advice given by clinics; c) to produce advanced and authoritative case law/doctrines, thanks to research carried out in universities, which will push institutions and european justice towards a growing commitment to human rights protection; d) to collaborate on the production of draft regulations and policies to implement the protection of fundamental rights at the european and international level; e) to create a venue which provides free legal advice outside courts for marginalised people. they are entirely approved by almost all the respondents. 7. network and movement one of the most relevant aspects of legal education is being open to the external world, developing collaborations with subjects out of the academic orbit. so, in order to have a more comprehensive overview, it has been necessary inquiring clinics’ partnership. the data indicates that all clinics have formal or informal relationships with lawyers and law firms. with the bar association 5 clinics are said to be on good terms, 6 act fully independently, while the others do not respond or state that they should improve the relation. 75% of clinics (all the established ones plus some in the pilot phase) collaborate with institutions, mostly by memoranda of understanding or similar formal agreements. among these there are prison admins, courts, job advisers, and so on. 12 clinics are said to be in relationship with organizations of civil society at the national level and 6 of these have developed connections with associations and ngos at european level. among these we find unions, ngos working in international cooperation, groups that uphold the rights of migrants, children, prisoners and the environment (such as: antigone, l’altro diritto, ciss, asgi, caritas, teatro e società, save the children, cospes, cgil torino, cub, usb, gruppo abele, wwf). with few exceptions, the network among clinics is generally good. 14 clinics declare that they are linked with other italian clinics and 6 with european ones (fig. 11). although in my opinion this result underestimates the actual reality, because – in the months after the collection of survey data – a brisk improvement of the national network is taking place and opening more chances of dialogue with encle too. fig. 11 – relationships with other clinics these observations seem to indicate the birth of a movement of italian legal clinics, in fact a movement – differently from a simple network – promotes not only specific actions but its members share a vision. the impetus to enforce the connections is sprung by the pioneer clinicians in italy, among them: marzia barbera of università di brescia, ulrich stege of the international university college of turin and encle, emilio santoro for l’altro diritto and the università di firenze and enrica rigo for università di rome tre. but they were also able to involve the younger and fledgling projects. in fact at each network meeting the number of participants increases. 0 2 4 6 8 10 12 14 at the national level at the european level outside europe absents people acting within the university in the social justice field and with an approach similar to clinicians are joining in this young movement, even if they do not yet have the proper status of a clinic. they manifest a civic and, in a broader sense, political attitude, they often feel like a minority in their faculty, needing recognition in a larger group, that gives name and acknowledgment to their idea of legal education and the jurist’s role in society. the issues most discussed are the definition of the identity profile of a legal clinic and its mandate, the ways to enforce clinical education ensuring more institutionalization and a broader recognition within the university curricula, and evaluation of possible strategies to guarantee the sustainability of the related projects. in this respect i asked which policies could empower the clinics. all the respondents have stressed the need to improve funding, many consider important strengthening networking and exchange between clinics, also a good number believe it is important to reward the universities that activate legal clinics. 6 out of 21 consider it a good idea to make legal education mandatory within law faculties and only 5 think it useful to establish quality standards (fig. 14). fig. 12 – how to enhance the role of legal clinics despite the variety of opinions, all the participants in this movement wish to keep the pedagogic mission and the pursuit of social justice together. in fact to the question about mission only one clinic has answered that its only commitment is professional training, 0 2 4 6 8 10 12 14 16 18 without any necessary involvement with ethics or social work. but this clinic acts independently without participating in the network meetings and discussions. at present, the movement does not have any formal status. but i have to mention the recent birth of an inter-departmental centre with the goal of creating a legal clinic in any associated department, if there is not one already, and developing a synergy among all the members. this centre connects the universities of bari, turin, salerno, naples, cosenza, palermo, pisa, rome and florence and is specialized in human rights, migration, marginality and detention. the emergence of such a movement could influence the professional culture of italian lawyers. the students enrolled in the clinics’ activities have the opportunity to experiment with the law in action, to use their legal competence for rights, equity and public interest; they meet people who rarely arrive in a law firm due to their economic or social condition. so, they usually declare that they have been very affected by clinical experience and claim to have acquired more awareness and even a different sensitivity. of course these young people are much less than the totality of law students, and the scholars involved are a very small part of the faculty staff, but they can play what serge moscovici calls the minority influence 7: “our results support the notion that majority and minority influence are different processes, the former producing mostly public submissiveness without private acceptance, and the latter producing primarily changes in private responses. these processes, called compliance and conversion, are mutually exclusive and to a certain extent, opposite” 8 . this means that the italian movement probably cannot become mainstream and enrol the mass of students and scholars, but it can nonetheless have a deeper effect through changing a little the vision and also the attitude of those jurists who will never become clinicians. 7 s. moscovici, social influence and social change, academic press, london, 1976. 8 s. moscovici, b. personnaz, minority influence and conversion beahviour in a perceptual task, in «journal of experimental social psychology», n. 16, (1980) p. 280. from the field the italian legal clinics movement: data and prospects clelia bartoli, università di palermo, italy; european network for clinical legal education, (encle) cleliabartoli@libero.it fig. 2 – fledgeling clinics fig. 3 –territorial distribution fig. 4 – budget 59 clinique togo: changing legal practice in one african nation in six days stephen a. rosenbaum* chers confrères, chères consoeurs,1 with honour and humility i accepted an invitation from the u�s� state department to participate as a technical advisor in a weeklong rule of law2 seminar in togo, with attorneys, judges, law professors and students� my mission was to explain various models for delivery of free legal services and assist in developing proposals for establishing a bar association pro bono3 programme * lecturer, university of california, berkeley school of law; adjunct professor, golden gate school of law; and chercheur associé, université d’artois, faculté de droit� mr� rosenbaum is a periodic recipient of u�s� state department speaker specialist grants and coordinator of the francophone africa law project (falp)� in 2011-12, he is serving as a legal education advisor to the american bar association rule of law initiative in cairo, egypt and doha, qatar� the author is indebted to miliette marcos, falp project attorney, for her invaluable research assistance and editorial suggestions, and to judge paul fogel, ret�, who introduced him to the speaker specialist program� he also thanks savannah blackwell, j�d�, berkeley law, class of 2010, for research assistance on an earlier draft� an abbreviated version of this article was published in 6 publicist (berkeley journal of international law) (2010), on-line journal, http://bjil�typepad�com/publicist/vol-6-fall-2010/� 1 this is the traditional french salutation made to audiences in seminar or conference settings, after greeting the “honorables invités.” its translation seems to lie somewhere between “dear colleagues,” “dear comrades” and “dear brothers and sisters�” 2 rule of law (rol) programmes have been conducted in newly “democratic” countries by governmental, nongovernmental, inter-governmental and private agencies� in david tolbert & andrew solomon, united nations reform and supporting the rule of law in post-conflict societies, 19 harv� hum� rts� j� 29, 30-33 (2006), two international jurists provide a definitional framework and application of a term that refers to core elements of judicial and legal reform: “despite the ubiquity of its usage and the importance of the idea, the rule of law, much like the concepts of ‘justice’ or ‘transitional justice,’ is endowed with ‘a multiplicity of definitions and understandings’… and “‘ is not a recipe for detailed institutional design [but] an interconnected cluster of values�’ (citing professor gerhard casper)�” id� at 31� 3 an abbreviation of pro bono publico, this term refers to legal services performed voluntarily and without payment as a public service� it is derived from latin, meaning “for the public good”� black’s law dic� (9th ed� 2009) volunteer legal services may go by other names� for example, in south africa, the term is pro amico, see infra note 38, and in lesotho, it is pro deo counsel� adam stapleton, introduction and overview of legal aid in africa, in penal reform int’l and bluhm legal clinic, access to justice in africa and beyond 13-16 (nw� u� sch� of l�, ed� 2007) (hereafter access to justice in africa 3, 14� “���[f]or the christian lawyer, the issue is not so much about pro bono aspirations or improving our professional image� it’s more about the pro deo duty we owe to god�” christian legal society� http://www�clsnet�org/legal-aid/programs/pro-bono-pro-deo-or-both� (last visited 12 oct� 2009)� 60 international journal of clinical legal education issue 17 in conjunction with the nation’s principal law school�4 when the state department first invited me to participate in its speaker specialist programme, i admit that for me it was all about having a glimpse of an otherwise inaccessible part of the world and the attendant cultural, professional and intellectual exchange�5 only after my initial programme visit did i become familiar with the concept of “rule of law” (l’état de droit), as well as the related concepts of access to justice and the law and development movement� 6 this was to be the focus of my journey to togo� beyond expressing a desire to discuss this general theme, no one at the state department or the embassy in lomé, togo explicitly informed me at the time of the invitation about the rationale for the seminar, its timing or how it corresponded to foreign policy or public diplomacy objectives in west africa� while this seemed like a lot to accomplish in one week, the scenario was consistent with my experience on earlier sojourns� typically, the consultant’s scenario is broadly sketched by the embassy public or cultural affairs attaché� these diplomats assume that american jurists have something of interest to say to our counterparts in developing democracies and that this is accomplished by a series of lectures or informal visits in small groups� in togo, the embassy had reason to believe that the overall theme of legal aid to the indigent, particularly as it involved clinical legal education and pro bono service, was suitable for a programme speaker� whether the suitability was informed by discussions with the togolese or by what was in vogue with foreign service colleagues in other african capitals or washington, dc, i do not know� i was not given any background documentation beyond the standard state department country report� 4 the project was funded by the u�s� department of state, which awarded me a u�s� speaker and specialist grant through its international information programs division� letter of 24 may 2007 (on file with author)� for an account of a part-time rol speaker who has obtained personal satisfaction and professional success, see, amelia hansen, the missionary: it’s his calling, calif� lawy� 20 (aug� 2009)� judge clifford wallace of the ninth circuit court of appeals has been speaking and consulting for a number of years in asia, the middle east, pacific islands and africa� he quips: “no one will remember my [judicial] opinions� but i think they will remember my contributions abroad�” id� at 22� 5 i had previously lectured in other french-speaking african states on such themes as judicial independence, human rights and alternative dispute resolution� see, e.g., stephen a� rosenbaum, supporting democracy: senegal needs u.s. help as it races to reform juridical institutions, daily j�(27 sept� 2000)� since 2000, i have been awarded eight grants for rule of law projects in francophone africa, viz�, senegal, guinea, chad, central african republic, togo and cameroon� 6 it appears that i am in good company in my ignorance� see, leah wortham, aiding clinical legal education abroad: what can be gained and the learning curve on how to do so effectively, 12 clin� l� rev� 615, 617 (2006) (confessing unfamiliarity with law and development movement (ldm) scholarship until far into her experience with clinical education outside the united states)� scholar erik jensen cites several works “[f]or those who are interested in the great historical debates about the definition of rule of law�” erik g� jensen, justice and the rule of law, in charles t� call, ed�, building states to build peace (2008) 138, n� 16� see also, ryan s� lincoln, rule of law for whom? strengthening the rule of law as a solution to sexual violence in the democratic republic of the congo, 26 berkeley j� gender, l� & just� 139, 150, 160 (2011) for a discussion of “thin” and “thick” definitions� the term “is notoriously difficult to define, and often means different things to different people� many approach the rule of law from a visceral perspective, what jane stromseth calls the problem of ‘i know it when i see it�’” (quoting jane stromseth, david wippman & rosa brooks, can might make rights?: building the rule of law after military interventions 56 (2006))� id� at 150� clinique togo 61 it was through my perusal of the relevant literature that i assumed the immediate need for legal aid was among prison detainees� only after arrival in togo did i learn that the nation had an inoperative legal assistance statute that had been on the books for decades� the statute, ordonnance no� 70-35, article 107 provided legal aid to the indigent but required the executive to issue an implementing decree� the legal community had also crafted a recent judicial modernisation plan� i was also informed, once in togo, about a new cooperation agreement between the principal law school and largest local bar association� in addition to this administrative framework, there existed an informal pro bono effort by members of the bar to make ad hoc visits to the prison to obtain some releases� these efforts represented the totality of the togolese indigent legal services programme� the united states supports democratisation efforts in countries like togo, which are transitioning from autocratic one-party states with under-developed judicial procedures� typically, the american government contributes its resources to nations which display a modicum of stability and targets a mid-level elite receptive to reform� given its history of political and electoral abuse and violence,8 togo was not well placed to request financial or material aid from foreign governments or non-governmental sources at the time of my impending visit�9 nonetheless, the on-site diplomatic corps endorsed an initiative to address the lack of a genuine legal assistance scheme and to improve togolese citizens’ access to justice� there was a lot of hope riding on the upcoming elections� in this diary cum essay, i describe (1) the background for the visit, (2) the series of exchanges with my hosts, (3) the objectives and means for structural change in the spheres of education and practice, and (4) the togolese legal and political culture� the image of “cook’s tour” 10 or “summer vacation” 11 applied to the visiting consultant needs to be laid to rest� i hope, instead, to capture some of the flavour of the experience, reflect on the capacity of short-term consultants to have an impact on legal reform, and offer some advice for those who are similarly engaged in rol support and solidarity activities�12 7 organisation judiciare ordonnance no� 78-35, art� 10 (09/07/78) in journal officiel de la république togolaise (no� 21 (bis) 11 sept� 1978))� 8 the violence in togo had not totally abated� see, e.g., u�s� dep’t of state, country reports on human rights practices (mar� 8, 2006) 9 the bureau of consular affairs’ succinct, unflattering (and constant) description reads: “togo is a small west african country with a stagnant economy in a state of political uncertainty�” http://travel�state�gov/travel/ cis_pa_tw/cis/cis_1041�html#country� (last visited 15 july 2010)� 10 commentators first applied this term in the late 1960s to the short stints at african universities made by american law professors “arriv[ing] in foreign territory unencumbered by any significant understanding of the local language, law, polity, economy, or culture�” kirsten a� dauphinais, training a countervailing elite: the necessity of an effective lawyering skills pedagogy for a sustainable rule of law revival in east africa, 85 n�d� l� rev� 53, 72 (2009)(citations omitted)� professor dauphinais is mindful that not every expert who visits [east] africa can stay long term� still, “the western law professor involving him or herself in this process must nurture an ethos the opposite of cut and run�” id� at 105� 11 professor richard wilson refers to the “how i spent my summer vacation developing clinics in [insert developing country name here]” phenomenon� richard j� wilson, western europe: last holdout in the world-wide acceptance of clinical legal education, 10 german l�j� 823, 823 (2009) (brackets in original)� 12 self-criticism is still in order� i must neither become (nor be perceived as) just another privileged overseas traveler – a charge that can be leveled against the legal elites in the countries i visit when they travel abroad in “study tours�” see infra note 132� as for the “privileged” part, one disability rights colleague characterizes these visits as “grueling” and underpaid� (telephone conversation with p�b�, 11 aug� 2010)� préparations the scope of the programme had been defined broadly with a focus on the mechanisms for reform� thus, as was the case with my previous visits to other countries, i was free to exercise virtually independent judgement about the project format and the content of my remarks� it was important to me that i not be viewed as yet one more speaker on the circuit—much less the great white saviour— jetting in and out, offering standard bromides for reform�13 a criticism of “access-tojustice” or rol programmes is their failure to “overcome transplant, formalist, and prescriptive criticisms of the 1960s law-and-development movement…”14 this failure is most acute where the justice system is inoperative in rural areas or for poorer citizens� such methods have also been less effective where justice is obtained through informal dispute mechanisms, social movements, or political struggle�15 modern programmes have evolved, however, and are distinguished by three characteristics: the involvement of practitioners (in addition to academics); participation of multinational actors, together with those from the united states; and an effort to work in partnership with african educators and practitioners to develop suitable institutions�16 the programme in togo harnessed the effectiveness of this last change, in particular� direct communication with embassy staff is essential� i immediately contacted the relevant 13 what comes to mind is the image of former treasury secretary, university president and presidential advisor lawrence summers, who reportedly “‘blew into jakarata for a few hours,’ after which he climbed the stairs to his plane, looked out over the unwashed, and said, ‘indonesia needs the rule of law�’” jensen, supra note 6 at 122� 14 jeremy perelman, the way ahead? access-to-justice, public interest lawyering, and the right to legal aid in south africa: the nkuzi case, 41 stanford j. int’l l. 357, 398 (2005) (footnote omitted)� for a discussion of the rationale and criticism of rol programmes, see generally, erik g� jensen, the rule of law and judicial reform: the political economy of diverse institutional patterns and reformers’ responses, in beyond common knowledge: empirical approaches to the rule of law 336, 348 (erik g. jensen & thomas c. heller, eds�, 2003); see also thomas carothers, aiding democracy abroad: the learning curve 164 (1999) and jensen, supra note 6� for an overview of rol and ldm critiques, as seen through the lens of a clinical law professor, see wortham, supra note 6 at 632-53� with regard to early investment in post-liberation african legal education and leadership development, see thomas f� geraghty & emmanuel k� quensah, african legal education: a missed opportunity and suggestions for change: a call for renewed attention to neglected means of securing human rights and legal predictability, 5 loy. u. chi. int’l l. rev. 87, 88-89 (2007) see also, dauphinais, supra note 10 at 55-80 (history and criticism of ldm in east africa)� “‘american legal assistance was characterized in part by a rather awkward mixture of goodwill, optimism, self-interest, arrogance, ethnocentricity, and simple lack of understanding� � � � [t]he law and development movement was � � � flawed and rather inept � � �,’ displaying a ‘missionary spirit�’” id. at 73 (quoting james gardner, legal imperialism: american lawyers and foreign aid in latin america 4-5, 13 (1980)�) 15 perelman, supra note 14 at 398. (footnote omitted)� 16 “culturally-competent collaboration” should be the aim of every visiting consultant, whatever length the visit� it is the mantra of everyone who has taught and thought about this subject� see, e�g�, geraghty & quensah, supra note 14 at 88, wortham, supra note 6 at 640, dauphinais, supra note 10 at 103-06, and peggy maisel, the role of u.s. law faculty in developing countries: strivng for effective cross-cultural collaboration, 14 clin. l.rev. 465, 496-97 (2008)� one commentator writes: “the setting for today’s law and development [movement] is quite different���the consensus is far stronger in favor of reform and the legal approaches identified with the united states, including the core idea of a strong and independent judiciary� lawyers do not have to fight for their role this time� economists have come to see the importance of legal institutions to the markets that they now promote [footnote omitted]�” bryant g� garth, building strong and independent judiciaries through the new law and development: behind the paradox of consensus programs and perpetually disappointing results, 52 depaul l. rev. 383, 385 (2002)� however, dean garth notes that the legal reform initiative process “is a hegemonic one that focuses on the business of exporting and importing [by power elites] on debates and issues that have salience in the north (here in the united states) at a particular time and place� we export our own palace wars” id. at 395-96)� 62 international journal of clinical legal education issue 17 clinique togo 63 personnel in togo and was able to correspond frequently by email with the political affairs officer (pao) and her assistant� neither had a background in law� both were generalists responsible for a number of portfolios in a small embassy� since they were deferring to the local bar association for programmatic detail and leadership, the embassy was either hesitant, or unable, to provide all the information needed to refine the topic, gauge expectations and determine logistics� my attempts to communicate directly with the bar association, however, were frustrated both by poor internet connection17 and a lack of detail in the information the association sent my way� despite my difficulties with communication, it became apparent that the two broad objectives for the togolese were: (1) develop a bar association pro bono programme to facilitate delivery of legal aid to the indigent;18 and (2) establish a clinical education component at the capital’s law school�19 it is now standard advice that the visiting legal educator or consultant prepare by immersing herself in the law, customs and culture of the country of destination before arrival�20 one should expect no less of the very short-term visitor—even if the guest’s preparatory efforts are not reciprocated by the hosts�21 in my case, the overall agenda was clear about the request for technical assistance� however, there was no specification of the pressing legal need to be met by this aid� i took it upon myself to fill in the gaps� the literature suggested that unnecessary pretrial detention and prison conditions would be a priority� togo, like many other african nations, had a history of detaining its citizens for unwarranted periods of time, and in overcrowded and unsanitary conditions�22 to ensure access to justice in togo, it was essential to first understand what the existing system 17 internet communication outside the embassy can be problematic� to minimize interrupted or delayed service, many professionals have a united statesor france-based email address (e�g�, <yahoo�com> or <yahoo� fr>)� however, their use of email may be limited by power outages, lack of computer access or customary correspondence practice� the heavy reliance on email exchanges for business correspondence that we have come to know in the united states has not taken hold in most of africa� 18 for a history of free legal aid services in the united states and the intersection with international human rights law and procedures, see generally, stephen a� rosenbaum, pro bono publico meets droits de l’homme: speaking a new legal language, 13 loyola l�a� int’l & comp� l� j� 499 (1991)� see also access to justice in africa, supra note 3 at 13-16 (analysing difficulties concerning pro bono schemes in africa)� 19 for a brief discussion of legal aid clinics in africa, see david mcquoid-mason, the supply side: the role of lawyers in the provision of legal aid – some lessons from south africa, in access to justice in africa, supra note 3 at 111-113� see also, carothers, supra note 14 at 167 & 169 (noting that legal education may also be a focus of us aid providers)� 20 see, e.g�, maisel, supra note 16 at 492-94 and dauphinais, supra note 10 at 103-05� professor stuart cohn writes: “as obvious as this recommendation appears, i have been told in more than one country of visiting ‘experts’ who arrive knowing practically nothing about where they are, and who deliver set lectures that barely, if at all, touch local concerns� it does not matter how technical the subject matter: an instructor’s failure to know local laws, history, and culture undermines the effectiveness of the presentation�” stuart r� cohn, teaching in a developing country: mistakes made and lessons learned in uganda, 48 j� legal educ� 101, 107 (1998)� these visitors “are engaging, even if they do not realize it, in a form of anthropological encounter�” maisel, supra note 16 at 495 (quoting university of malta senior law lecturer david zammit)� 21 this point was brought home to me just a few days before my departure for togo when i attended a san francisco bar association presentation by stephen mansfield, one of the first prosecutors at the international criminal tribunal for rwanda� mansfield related that when he had arrived in kigali years earlier for an undertaking much more ambitious and consequential than my upcoming workshops, he found there had been almost no preparation by the embassy or local authorities� stephen mansfield, “war crimes investigations & tribunals: lessons from cambodia & rwanda,” san francisco legal aid society (25 sept� 2007)� 22 see, e.g., yao dzidzinyo claude bouaka, garanties des droits des détenus au regard des articles 7, 9 et 10 du pacte international relatif aux droits civils et politiques: une analyse juridique de la situation des droits de l`homme au togo (verlag 2003) and u�s� dep’t of state, country rep� on hum� rts� practices – togo (25 feb� 2009), avail. at http://www�state�gov/g/drl/rls/hrrpt/2008/af/119029�htm� (last visited 15 july 2010)� 64 international journal of clinical legal education issue 17 provided� exercising my own initiative about the nature and scope of the assignment led to library and internet research� the irony was that i was probably better positioned than my prospective togolese hosts to access the texts which are fundamental to reforms in african legal education and practice of law� whether due to the cost of printing, or transportation and communication obstacles, the very codes, reported appellate decisions and international accords on which african jurists rely actually may be unavailable to the judges and lawyers themselves� 23 during an earlier state department visit to guinea, for example, i discovered a curious collection in my hotel gift shop: copies of legal codes on the bottom of a display case, mingled with local crafts and trinkets� while these “goods” were being offered to tourists, guinean judges bemoaned their lack of access to legal materials� my research24 fell into three main topical areas: approaches to clinical education25 with an emphasis on developing countries; 26 model civil law statutes for free legal services delivery; and reform campaigns aimed at reducing prison populations� 27 email exchanges with embassy contacts from an earlier visit to senegal, visits to websites operated by prison reform advocates and frenchlanguage jurists, 28 and materials housed in the boalt hall29 law library30 formed the bulk of my research� 23 professors geraghty and quensah, supra note 14 at 90, describe in graphic terms how “african law schools are starving,” and no less so when it comes to library collections, legal information, technology and (updated and relevant) course books� id� at 90, 97-99, 102� professor dauphinais also writes about insufficient quantities of local statutes and other legal materials amongst students and lawyers� although their articles focus on law schools in african commonwealth nations and ethiopia, the analyses and recommendations from geraghty and quensah and dauphinais are equally apt in francophone africa� dauphinais, supra note 10 at 104� 24 only after my trip did i discover some of the most insightful and useful articles on topic – some of which had not yet been written� 25 “clinical education” encompasses many meanings, ranging from “in-house, live-client” settings in law schools to field placements or externships to simulation classes� aals section on clinical legal education, clinicians’ desk reference (apr� 2009), n� 2� “applied legal education” may be a more useful term insofar as it describes “a reflective and experiential learning process without the economic and efficiency pressures of the workplace, to help students understand how the law works in action while providing sorely needed pro bono representation to the poor�” see, center for the study of applied legal education, http://www�csale�org/need�html (last visited 9 aug� 2010)� 26 see, richard j� wilson, three law schools in chile, 1970-2000: innovation, resistance and conformity in the global south, 8 clin� l� rev� 515, 517 n�5 (2002) on the term “global south” in lieu of what he deems to be the more pejorative and imprecise “developing” country or “third world�” 27 see paddington garwe, developments in penal reform in africa, in access to justice in africa, supra note 3 at 33-35� interestingly, “[p]risons have not been a target of u�s� rule-of-law assistance, despite the horrendous state of prisons in most transitional societies and governments’ interest in receiving external aid to improve them�” carothers, supra note 14, at 167� according to carothers, founder and director of the carnegie endowment’s rule of law project, the potential for criticism from congress or human rights groups “has scared away most u�s� officials�” id� 28 l’association des des cours judiciaires francophones, for example, maintains a website, www�ahjucaf�org (last visited 9 nov� 2011) and reference materials on court-related developments in the francophone world� 29 the law school has since been re-branded as “berkeley law�” see university of california berkley law, memorandum from dean christopher edley (24 apr� 2008), avail. at http://www�law�berkeley�edu/identity/ edley-letter�html (last visited 19 dec� 2010)� however, references to its former name are still permitted, at least in-house, notwithstanding the new name and public image� id� 30 the library has small collections on african human rights and togo� surprisingly, the togolese constitution circulates for only one week, even for faculty� fortunately, i was granted an extension� it is ironic that the constitution was probably more readily available (and in demand) in the u�s� than togo� my contacts at the global alliance for justice education (gaje)31 provided a referral to thomas geraghty, the associate dean and director of northwestern university’s bluhm legal clinic� the clinic had recently helped to facilitate a conference on african legal aid in the criminal justice system, organised by penal reform international� 32 professor geraghty33 was kind enough to quickly ship copies – in english and french – of a just published collection of detailed papers presented at that conference� a clinical attorney affiliated with stanford law school, who had helped establish a community law clinic in ghana,34 provided some sample interview simulations that she used with her students before they departed for a mini-semester in accra� i was considering introducing my togolese workshop participants to simulation exercises, should the opportunity present itself� lastly, a pro bono specialist35 described for me the workings of a sophisticated computerised network of u�s�-based firms� these firms are matched with legal services and public interest lawyers in search of co-counsel or for referrals on matters they are unable to handle�36 of course, to be of value would require adapting this concept to a country where a six lawyer cabinet constitutes a 31 law teachers, judges, legal practitioners and activists from five continents convened in 1996 to form an organisation to promote “socially relevant legal education�” with members from over 50 countries, gaje facilitates cross-national educational exchange programs and joint research projects� its goals include support for “innovative justice education, especially in developing countries” and serving as a teaching methodology and materials clearinghouse� http://www�gaje�org (last visited 26 june 2010)� for more about gaje and the building of a worldwide movement to “advanc[e] the cause of justice through legal education,” see frank s� bloch, access to justice and the global clinical movement, 28 washington univ� j� l� & pol’y 111, 131-38 (2008)� 32 pri is a ngo working in partnership with governments on penal and criminal justice reform throughout the world, including the development and implementation of human rights instruments relating to prison conditions and reduction in the use of imprisonment� http://www�penalreform�org (last visited 12 july 2010)� it was the chief sponsor of a conference, attended by researchers and practitioners from 21 african countries, held in lilongwe, malawi, in november 2004� a conference drafting committee produced the lilongwe declaration on accessing legal aid in the criminal justice system in africa and a plan of action� the committee was chaired by malawi’s justice rezine mzikamanda� professor geraghty served as the only non-african member of the committee and northwestern university law students supported the work with their note-taking� the declaration and plan of action are reprinted in access to justice in africa, supra note 3 at 39-50� 33 i later learnt that professor geraghty has an interest and expertise in african legal education, a field in which the bluhm center’s international human rights students have been active� see, generally, geraghty & quensah, supra note 14� 34 danielle jones, supervising attorney, stanford community law clinic� the stanford community law clinic serves low-income clients in and around east palo alto on mostly employment, housing and criminalrecord-clearance matters� stanford community law clinic, http://www�law�stanford�edu/program/clinics/ communitylaw/ (last visited 12 july 2010)� 35 julia wilson, executive director, legal assistance association of california� laac is an organisation of nonprofit legal services that assists and strengthens its members in their work providing legal assistance and equal access to justice to low-income californians� http://www�calegaladvocates�org/ (last visited 13 mar� 2009)� 36 id. see also pro bono institute, http://www�probonoinst�org/ (last visited 13 mar� 2009)� clinique togo 65 66 international journal of clinical legal education issue 17 large firm37 and where there is no real pro bono38 tradition, much less a codified ethical standard for representing the unrepresented�39 in addition, the structural benefits of a united states pro bono operation, such as furnishing malpractice insurance or training in specialized practice areas, would be irrelevant in the typical west or central african setting� however, the specialist’s other advice about establishing a legal services or clinical office made perfect sense, notwithstanding the smaller scale and less developed legal infrastructure: (1) begin with a small pilot project; (2) select an advisory board; (3) establish a protocol for case acceptance and attorney or professor oversight; (4) form partnerships with other lawyers, judges and ngos; and (5) conduct an evaluation after a fixed period of time� as for concerns about infrastructure, it would be, in large part about the physical and material aspect�40 not surprisingly, lack of funding and staffing is a huge obstacle for legal clinics in developing countries�41 my investigation had thus equipped me with the basic constitutional text; statutes from neighbouring nations; reports on togolese politics, african legal reforms and prison conditions; and press clippings� armed with this information, i came to understand the expansive scope of the project� email exchanges in the weeks just before departure confirmed the mission was overly ambitious: a three day conference to (1) draft a statute establishing free legal services for the poor; and (2) design a clinical legal education programme at the university of lomé faculty of law� again, it was important to avoid an in-and-out visit complete with a one-size-fits-all reform agenda� conference work was to occur in small groups, book-ended by formal plenary sessions�, but it was unclear whether i was expected to facilitate any of these sessions� an email from the pao 37 for countries without large elite law firms, the clearinghouse model is one option: a central agency assigns cases to pro bono members of the bar� in addition to matching clients with pro bono attorneys, these entities monitor the quality of the work and provide training and support to participating attorneys� thomas geraghty, geoffrey anderman, david hamsher, sha hua, nadia majid, david sanders & katherine shaw, access to justice: challenges, models, and the participation of non-lawyers in justice delivery, in access to justice in africa, supra note 3, at 53, 80 (citing scott l� cummings, the politics of pro bono, 52 ucla l� rev� 1 (2004))� 38 but see, david mcquoid-mason, the supply side: the role of lawyers in the provision of legal aid – some lessons from south africa, in access to justice in africa, supra note 3 at 101� professor mcquoid-mason writes that south africa, as a result of british influence, has a tradition of lawyers doing some non-mandatory pro bono or “pro amico” work� law societies in some african countries are making this compulsory for their members� id� under the south african model, an attorney may make a pro amico agreement with a client to work for free until a judgement is issued or a settlement reached� “legal beagle,”durbs magazine (june/july 2006), avail. at http:// durbs�kwazulunatal�com/number13/page11�shtml (last visited 6 aug� 2010)� 39 see, e.g��, american bar association, model rules of professional conduct, rule 6�1, (amended 1992)(avail. at http://www�abanet�org/cpr/mrpc/rule_6_1�html) (last visited 6 aug� 2010): “a lawyer should aspire to render at least (50) hours of pro bono publico legal services per year� in fulfilling this responsibility, the lawyer should��� provide a substantial majority of the���hours without fee or expectation of fee to persons of limited means���in addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means�” 40 see supra note 23 and infra notes 104-06 and accompanying text (describing poor physical state, materials and staffing of campuses and government buildings)� 41 one long-time observer of clinical education in south africa remarks: “…virtually all clinics rely to some degree on short-term grants� as a result, their staff must constantly engage in time-consuming fundraising, they suffer from rapid turnover as grants come and go, their case priorities are often set by the funders rather than community needs, and they have insufficient faculty to provide high quality education for their students [footnote omitted]�” peggy maisel, expanding and sustaining clinical legal education in developing countries: what we can learn from south africa, 30 fordham int’l l�j� 374, 388 (2007)� suggested that workshops, at least as conducted in most american “break out”42 settings, were not a well-established mechanism in africa; past experience told me as much� yet, it seemed the embassy anticipated a series of lectures from me or even some skills simulation sessions�43 in attempting to meet the expectations of sponsors and target audience, the consultant must be prepared for an alternate scenario or improvised presentations� aware of this reality, i departed for togo with a tentative agenda and an open mind� le long voyage my journey had really begun before physical departure, with the research and ruminating� while it takes about a day and a half to travel to lomé, with stopovers and time zone changes, the distance is as much cultural as it is spatial or temporal� the adjustment to the formalities, lack of amenities, slavish adherence to bureaucratic protocols, and the pace of daily life outdid the effects of jet lag� my experience was also coloured by my rapport with my immediate hosts� they would be my guides, mentors, minders and tutors� the pao was an ex-peace corps volunteer married to a musician from neighbouring benin� she seemed to be a less conventional diplomat than her assistant, a long-time embassy staffer and togolese national with a daughter attending college in the united states� to be sure, they represented an elite sector of society, with slightly more mobility than the jurists i would encounter� eventually, after my visit, both had left their jobs in lomé, the pao for another diplomatic post and the assistant had left for a life in america� our interactions would reveal a mix of american and local interests, which did not necessarily fall along predicable lines of nationality, race or diplomatic status� that is, a foreign service officer might express views at odds with the current american administration, while an african national could staunchly defend the u�s� government’s position� outside the embassy walls, the nation’s politics dominated discussion� my visit coincided with the togolese electoral campaign, which the national television station covered extensively� the two-week campaign period had been launched he day i arrived and voters were presented with 395 party lists of candidates from at least 32 parties�44 elections have a different significance in post-colonial africa than in western democracies and the excitement was palpable� walls were plastered with partisan posters� my hotel appeared to be the headquarters for the european union election observers, with many olive green trucks lined up in the front parking lot� i actually awoke one morning to find a photocopied letter slipped under the door of my room� it was a “call to the nation” from the president, urging a peaceful balloting: “togolaises, togolais, mes très chers compatriotes....vive la démocratie! vive la paix!” 45 an enlarged version of the letter was mounted conspicuously on an easel in the lobby� one would be unlikely to encounter a similar display of civic boosterism at an upscale tourist hotel, or indeed any hotel, in western countries� 42 while i acquiesce to the popular “break out” for the convening of small groups, i eschew the equally popular “report-back” for what is adequately described as a “report�” 43 it is commonplace at conference workshops for clinical educators, such as those sponsored by the american association of law schools or the clinical legal education association, to actually introduce a pedagogical concept through simulation or role play� 44 une campagne blanc, rouge, jaune, republic of togo, 1 oct� 2007, http://www�republicoftogo�com/central� php?0=5&s=83&d=3&i=1058 (last visited 2 oct� 2009); http://www�state�gov/g/drl/rls/hrrpt/2008/af/119029� htm (last visited 9 aug� 2010)� 45 letter from faure gnassingbé, president of togo, to togolese citizens (oct� 2007) (on file with author)� clinique togo 67 68 international journal of clinical legal education issue 17 anticipated with a mix of celebration and angst, this represented much more than an exercise in the right to vote freely� this tangible symbol of democracy meant the government could effect change through the political process, and opposition parties could have a chance at power� in togo, and the rest of post-liberation africa, this process of alternance, or change in leadership, is itself a confirmation of belief in the rule of law� togo has a long history under one-party rule� for over thirty years, an autocratic head of state, son excellence, eyadema gnassingbé, governed the country� today, the dynasty continues with his son, faure 46 like his father before him, he is addressed as his excellency and his photo hangs on the wall of every commercial establishment� despite this tradition of praise and obedience, the election raised expectations of democratisation in togo� the previous general elections, in april 2005, resulted in widespread violence, condemnation by african leaders47 and a loss in foreign aid� the political elite were keen to avoid a repeat scenario� although the electoral campaign and the results would not have a direct impact on the seminar and its outcome, it formed an important backdrop� legal reform in general and access to justice in particular would figure as important components of a genuine democracy� 1° jour on the first programme day in lomé, i held two key preparatory meetings: one with the president of the local bar association and the other with the ambassador�48 the bar association was officially in charge of the impending workshop� characteristically, the bar was neither sufficiently staffed nor financed to independently plan or organise this kind of event� le bâtonnier ,or bar president49 is a very prestigious position in togo, as elsewhere in francophone africa�50 in the upcoming seminar discussions, beginning with the meeting at the bar headquarters, participants frequently invoked article 10 of ordonnance no� 78-35� this sole existing statute addressing subsidized legal assistance states: legal assistance may be granted, by decision of the jurisdiction handling the matter, to parties proving their indigence� the particulars of the assistance are governed by décret� 51 article 10, and the failure to appropriate funds and implement the law by executive decree, assumed an almost exaggerated importance� two other documents also appeared central to the 46 kaniye s�a� ebek, the succession of faure gnassingbé to the togolese presidency – an international law perspective, 2005 nordiska afrikainstitutet� 47 u�s� dep’t of state, background note: togo, http://www�state�gov/g/drl/rls/hrrpt/2006/78762/htm (last visited 2 aug� 2010)� 48 david dunn� 49 maître alexis aquereburu, bâtonnier, ordre des avocats du togo� 50 on a subsequent visit to africa, i appreciated even more the deference typically accorded the bar president� my table partners at a lavish cocktail hosted by the local bar president in douala, cameroon were young, but accomplished, lawyers� although they were jovial and informal, they were not on a first name basis with the bâtonnier� they were overly complimentary, bordering on obsequious� but, in the interest of improving my cultural competence, i must set aside my narrow american judg[e]ment about this form of interaction� 51 art� 10, para� 2, supra note 7� somehow this key text failed to turn up in my library research� the constitution contains only vague and indirect references to access to justice� constitution de la république togolaise, arts� 11 (prohibiting favouritism or disadvantage due to economic status); 15 (banning arbitrary arrest or detention); 16 (right to counsel at time of preliminary investigation)� clinique togo 69 debate� first the ministry of justice had issued a draft judicial modernisation programme52 a little more than two years earlier, noting that the legal aid fund allegedly created in 1978 never received any government appropriations� 53 second, the nation’s largest bar association and law school had entered into a partnership agreement or memorandum of understanding earlier in the year� the document envisioned such activities as continuing education of the bar, theoretical and practical training of students; attorney-taught courses and curriculum planning and student externships (recevoir en stage...des étudiants)�54 the modernisation programme had the potential to serve as a springboard for a fully developed legal assistance operation� there was no indication, however, that the modernisation planning document would be translated into reality�55 curiously, prior to my arrival, no one made reference to the modernisation plan, the law school-bar association agreement or the longstanding legal assistance statute� 56 the modernisation program’s coordinator, judge hohueto, was actually present at the meeting with bar members that afternoon, but she did not appear to have a leadership role in the planning of the seminar, much less the implementation of any future legal reform� in what constitutes a pro bono tradition in togo, members of the lomé bar association have occasionally visited the local prisons en masse� this effort to clear the legal backlog would occur during an annual holiday as an act of charity or concurrently with the opening of a new term of the supreme court, the rentrée solonelle. these journées de consultation juridique gratuites, sometimes underwritten by the american embassy, were an ad hoc practice that had the potential for something more formalised� having received local perspective and background from bar president aquereburu, i next met with ambassador dunn� the practice of setting up a briefing with the ambassador, particularly if he has a professional interest in a visitor’s area of expertise, is not unusual in a small country� meeting embassy expectations about a programme and its results can be challenging� the objective may be as simple as creating a space for discussion and reflection, or the objective is not articulated at all, except in the broadest of terms�57 these expectations must also be reconciled with one’s own 52 ministere de la justice, republique togolaise, programme national de modernisation de la justice 2005-2010 (amended final draft, aug� 2005)(on file with author)� 53 rol scholar erik jensen notes that “[p]ublic cynicism will grow if rules are introduced without attention to pace, sequence, local context, and of course implementation�” jensen, supra note 6 at 122� “[t]too many rules in low-capacity regimes can undermine public support and state legitimacy�” id� 54 protocole d’accord de partenariat entre le barreau de lomé et l’université de lomé� (18 jan� 2007)(hereafter “protocole de partenariat”)(on file with author)� the stage in anglophone africa might be referred to as articling or pupilage, particularly if it takes place after law school graduation� 55 jensen appropriately cautions that “[p]lanning documents, government edicts, the passing of laws, or representations made by a key political, legal, or economic actor over a meal are often taken at their face value as demonstrating elite commitment [footnote omitted]�” jensen, supra note 6 at 134� the togolese modernisation programme, like the much-discussed article 10 and the bar-faculty accord, was by no means a demonstration of any commitment to legal reform� 56 i say this not to chastise the hosting embassy staff or host country representatives, but as an acknowledgement that some of the obvious background materials for a visit may not be provided to the visitor� 57 on the other hand, in preparing for a subsequent two-country visit, the state department forwarded me the embassy email messages which described the programme objectives� although almost identical enough to be formulaic, the two emails did display a desire by embassy staff to link the programmes to larger themes important to the united states and the host country—at least on paper� (email from steven lauterbach, 30 june 2010)(on file with author)� 70 international journal of clinical legal education issue 17 personal or professional objectives� to meet the ambassador i entered a newly constructed facility� it was spacious, light and filled with potted plants and works of art� located on the outskirts of lomé, its main feature, like most post-9/11 u�s� embassies, was security� as is typical, the majority of employees were nationals of the host country� from airport expediter to assistant planners and programme coordinators, these are well-paid, desirable jobs� ambassador dunn and i spoke about the need for legal reform and what that might entail� he clearly cared about institutionalising rule of law principles and leveraging u�s� funds to do so� acting on this interest, the ambassador would appear at the opening of the seminar the next day along with togolese justice ministry and bar association officials to speak on the issue� 2e jour my work began in earnest in the conference room of ghis palace, a modest hotel by u�s� standards, situated on the outskirts of the city� a smart hand-painted banner announcing the seminar was hung across the front of the room, reading: “legal aid and strengthening of the rule of law in togo�” long rectangular tables were joined together horseshoe-style� young men arrived wearing wide neckties and pointy fashionable shoes, as did women in western and traditional dresses, together with some older men in dark suits� ardent mid-level and junior jurists (including the daughter of the current, or perhaps former, prime minister) were seated around the horseshoe, but it was not clear whether the more senior men would remain for the work that needed to be done after the plenary� 58 the plenary session59 was opened by le bâtonnier� in his remarks, president aquereburu acknowledged the ineffectiveness of legal aid in togo, in spite of measures provided in article 10� not as much attention was given to the concept of legal assistance itself as to its legal underpinnings or to the precise term of art, which varied from l’aide juridique to l’assistance judiciare to l’aide juridictionelle60 the bâtonnier expressed hope that the seminar work would establish the necessary support for implementing a legal aid programme for the poor� in another set of opening remarks, ambassador dunn noted how the united states, along with bilateral and multilateral partners, had participated in the process of modernisation of togo’s courts� he told those assembled that his government—that would be mine—sought to establish a judicial system that protects and respects individual and group liberties, as well as fundamental rights �61 58 more than one participant later expressed regret on their evaluation forms that more senior attorneys did not attend the seminar� another thought the workshop sessions were very useful� fiches d’evaluation (on file with author)� many of the younger lawyers later stated their unhappiness with the location of the seminar� id� see infra text accompanying notes 130-31� although lunch and a stipend were provided, the cost of transportation outside the city centre was significant� 59 a young conscientious law graduate, darius atsoo, prepared an almost contemporaneous summary of proceedings on his laptop� see, rapport général du seminaire: aide juridictionelle et consolidation de l’etat de droit au togo (2-4 oct� 2007) (hereafter rapport général du seminaire) (on file with author)� i afterwards received periodic requests from me� atsoo for me to friend him on facebook – even before i had joined myself� 60 me� amazohoun, a young lawyer and one-man human rights ngo, had his dalloz dictionary handy to look up cross-references for the various terms, which seem to be interchangeable� 61 rapport général du seminaire, supra note 59 at 2� following dunn’s remarks, the cabinet attaché from the justice ministry62 described the seminar as part of a vast and ambitious programme of justice modernisation and reiterated that the essential subject was legal aid� he thanked president gnassingbé for “nourish[ing] his people with the hope of a promising future through the legal system” and emphasised that justice is “at the heart of the new societal contract” to which togo had subscribed� despite this ceremonial endorsement by the justice ministry, the next speaker, judge agbetomey of the supreme court, was among many to note that the executive had never adopted an implementing degree for article 10�63 the usual round of comments and questions followed� hands were raised and the moderator called on three people at a time� each person began by thanking the speaker for valuable remarks and then delivered a lengthy comment or posed a question� in response to agbetomey’s address, seminar participants suggested that consumer-friendly orientation and assistance booths be stationed in strategic locations, possibly in courthouse lobbies� they also agreed to implement specific recommendations at the end of the seminar, which would serve as the foundation of a décret implementing article 10� this decree would address such matters as the definition of indigence, legal aid eligibility, amount of legal aid, qualifications for assistance and the procedure for requesting aid�64 professor kpodar of the law faculty was among the few speakers to offer concrete suggestions� legal aid, he declared, is at the heart of human rights protection but could not be effective if citizens’ access to justice in their own country is not facilitated by the state through adequate human and financial resources� he urged that assistance be made available to the most impoverished in order to avoid the “ill-fated effects of private justice” that result in violence� kpodar suggested that the concept of legal aid to the indigent be sufficiently publicized65 and integrated into general university programmes, and law school programmes in particular� he called for the creation of a centre for law and reflection, under the supervision of lawyers, judges and university faculty� the centre would be staffed by students preparing for their capa66 or for the national judiciary college, the ecole nationale de la magistrature�67 it is not clear whether the centre kpodar proposed would be more inclined toward service than scholarship� nonetheless, the ability of law school faculty to run such a legal clinic themselves is 62 id. at 2-3 (representing the attorney general and the ministry of justice)� 63 remarks of judge pius kokouvi agbetomey, togo supreme court� id� at 3� 64 id� 65 professor frank bloch argues that before legal aid is made readily available, the people must first be made aware of their rights� bloch, supra note 31 at 118� the so-called “street law” courses offered in many u�s� law schools are a good model for supporting law students who in turn provide lay outreach and community education courses to members of marginalized communities� wortham, supra note 6 at 660� see also, philip f� iya, fighting africa’s poverty and ignorance through clinical legal education: shared experiences with new initiatives for the 21st century, int’l j� clin� legal ed� 13, 17-19 (nov� 2000)(law school involvement in community outreach programmes)� 66 the capa (certificat d’aptitude à la profession d’avocat) is the postgraduate legal qualification needed to practise law� 67 remarks of prof� adama ferdinand kpodar, assistant dean, faculty of law, univ� of lomé� rapport général du seminaire, supra note 59 at 3-4� clinique togo 71 72 international journal of clinical legal education issue 17 highly questionable, given their theoretical training and orientation� 68 in the end, the support of senior faculty would be essential69 to the survival of any curriculum change made to accommodate the clinic, particularly those changes that might involve a reallocation of teaching resources and other funds or the awarding of academic credit� 70 in remarks entitled “the necessity of teaching legal aid to students,” maître attoh-mensah echoed professor kpodar’s emphasis of the need for state financial aid� he defined legal aid as a subsidy granted by the state to allow its poorer citizens to exercise their legal rights in legal matters (mâtière gracieuse ou contentieuse)� 71 he recommended that judges, lawyers and other legal professionals familiarise themselves with the free legal aid concept at an early stage in their training so they could integrate it in their professional lives� 72 he argued that the bar’s recognition of legal aid as a necessity for improving access to justice was an important step in the struggle to provide assistance to the underserved� to capitalise on this momentum, attoh-mensah asserted that the political and legal authorities should be encouraged to implement an adequate means to provide effective legal aid� attoh-mensah also affirmed the importance of teaching about legal assistance to capa students and endorsed kpodar’s proposal of a legal aid outreach campaign amongst law students� in addition, he said students should be allowed to participate in the preparation of case files for 68 for example, professor peggy maisel posits that the “lack of capacity stems initially from the fact that virtually none of [the] south african law professors had the opportunity to participate in clinics themselves while in law school� therefore, they were forced both to establish law clinics and to create a related curriculum without having had any personal experience of what a clinic looked like or how it operated [footnote omitted]�” see maisel, supra note 41 at 409-10� this point was driven home when some colleagues and i formed the projet clinique juridique berkeley-goma and attempted to link a private university law school in the eastern democratic republic of the congo with legal assistance to survivors of gender-based violence� while expressing interest in a practical and service-orientated delivery model, the faculty’s proposal was grounded more in research, data collection and publication than the practise of law and assistance to traumatised clients� 69 wortham, supra note 6 at 668� on more than one programme visit, my embassy interlocutors have cautioned that the senior faculty (or attorneys) may express interest in a proposal but will try to delegate follow-through to less influential junior faculty (members of the bar)� this phenomenon is not unique to african universities and professional associations� professor wortham observes that while senior faculty may be dubious about new pedagogy, such as the clinical model, students will almost always happily embrace the change� id� at 681� 70 professors geraghty and quensah explain that african law schools, like their american counterparts before them, may need to hire recent graduates to teach in clinical programmes� besides the know-how and enthusiasm they will bring to the job, these junior faculty members will be less expensive� geraghty & quensah, supra note 14 at 103� while the majority of existing african law school-affiliated clinics do not award academic credit, id� at 101, this is not necessarily a deterrent to student enrolment� for an account of the challenges in implementing clinical curriculum in a relatively new african university, see t�o� ojienda & m� odour, reflections on the implementation of clinical legal education in moi university, kenya int’l j� clin� legal ed� 49 (june 2002)� see also, iya, supra note 65 at 16-24 (genesis and application of clinical legal education in africa and experience in different countries)� 71 remarks of sylvain attoh-mensah, member of the bar and radar (réseau contre les arrestations et les détentions arbitraires)� rapport général du seminaire, supra note 59 at 4-5� 72 lawyers may graduate from the faculty of law without any training in human rights laws and practices or the “knowledge and requisite skills in contemporary and innovative approaches to rendering legal aid�” nchunu justice sama, providing legal aid in criminal justice in cameroon: the role of lawyers in access to justice in africa, supra note 3 at 161-162� inculcating students with the concept that social justice work is a part of professional obligation is an important objective of transformative legal education� see, bloch, supra note 31 at 116, 126� hearings and to organise pro bono legal intake days in collaboration with the bar association�73 lastly, he proposed the establishment of a legal assistance fund administered by a committee of judges, lawyers and others� the funding source could be the appellate court fines and interest on fees deposited by court clerks in bank accounts� attoh-mensah’s remarks elicited favourable comments� some participants noted that an effective aid programme would permit eradication of the unseemly practice by which lawyers “sell their wares” (démarchage) in the the lomé courthouse corridors�74 i spoke next, offering a way to put these ideas into action by presenting american legal aid options and those that have prevailed in certain african countries� 75 it remains surprising that a white american lawyer from a common law regime has something to say to french-speaking, 76 black african jurists working in a germano-roman civil law system� yet, these differences failed to raise large obstacles to communication despite their divisive potential� to the contrary, i felt a bond that was both professional and personal� 77 in the same vein, one might ask why a former french colony would look to the united states for technical assistance? our language, legal and educational systems, and culture are so distinct from what these nations inherited from france, and continue to rely on in government, schooling, commerce and public discourse�78 notwithstanding their linguistic and legal legacy, and mostly positive diplomatic and economic relations with the french, the togolese may experience a lingering distrust or even rejection associated with their ex-coloniser� 79 the u�s� system, putting aside our own history of hegemony, does provide an instructive model for examining 73 rapport général du seminaire, supra note 59 at 4-5� the lack of hands-on training for african law school students was made vividly clear in the handling of malawi capital crimes cases some years ago� of 91 cases, it was reported that “out of the seven lawyers in the [defence counsel] department, three had just been recruited from university and their first trials were capital cases (footnote omitted)�” stapleton, supra note 3 at 15� the inexperience was compounded by the fact that most of these lawyers had just met their client for the first time “minutes before the trial began�” id. although a similar critique can be made about neophyte or overworked american criminal defence counsel for the indigent, the consequences are obviously different for a misdemeanor, or even felony, than for a crime that could result in the death penalty� 74 id� the public’s ignorance of their rights, along with the perception of lawyers “as some sort of money-grabbers, rather than as professionals disposed to provide legal aid���,” has also been a barrier to accessing legal services in neighbouring countries� sama, supra note 72 at 160� 75 rapport général du seminaire, supra note 59 at 5-7� 76 language is itself a wonderful vehicle for bonding� if the american consultant can bridge the language gap—one of my strongest assets – she or he may well be a winner in public diplomacy� while my communications outside of embassy staff are always in french, i try to sprinkle in a few greetings or other phrases in the so-called national (ethnic) languages that audience members have in common – be it ewe, the togolese native tongue, wolof or chadian arabic� 77 but see, haider ala hamoudi, toward a rule of law society in iraq: introducing clinical legal education into iraqi law schools, 23 berkeley j� int’l l� 112, 120, n� 46 (2005) (fact that u�s� consultants were ethnically iraqi was critical to gaining trust of their hosts)� 78 professor dauphinais notes that the end of colonialism actually allowed for the advent of a legal culture and innovative educational methods – such as those established in the united states – that offer something other than those “received” from the former colonial power and ill-suited to contemporary social needs� dauphinais, supra note 10 at 67-69, 87-88� 79 it remains to be seen whether france can “reinforce [its] place,” in the words of the foreign minister, in language, ideas, art and science with the recent creation of the institut français� the agency is to oversee 143 cultural centres throughout the world� bernard kouchner, “la culture française a les moyens de rayonner à l’étranger,” le figaro, p� 21 (22 july 2010)� clinique togo 73 74 international journal of clinical legal education issue 17 contemporary judicial and legal educational innovations – beyond the general caché associated with made in america� 80 there was a long period of incubation before the american institutions of democratic governance and due process protections took shape, i explained to the audience� the supreme court required 170 years to clearly define the contours of the sixth amendment to the u�s� constitution – a fundamental provision of the bill of rights establishing the principle of legal assistance to those accused of committing a crime�81 extending the right to counsel for the indigent can be a long process in the making for a relatively young government and legal regime� in togo, the practices and funding would take time to catch up with the legal texts� this slow development of a right to representation contrasts with the civil law system of stipulated rights inherited from the french colonial empire� i went on to describe a second unique method of the american legal system that could be instructive in togo’s struggle to provide services to the indigent: the development of clinical programs� through these programmes, law schools have set up clinics permitting students to work under the supervision of lawyers, or skilled teachers, and hold them accountable to indigent clients�82 indeed, clinical education has developed elsewhere in africa, in anglophone countries83 and in legal regimes with no longstanding clinical or practice-orientated tradition� 84 although the 80 in addition to clinical legal education and pro bono representation, the themes of an independent judiciary, mediation and alternative dispute resolution are also popular and have made up the core of my other african programme visits� 81 gideon v� wainwright, 372 u�s� 335 (1963)� 82 a trend that began in the united states and moved to post-soviet europe is now enshrined in european union higher education curriculum policy� see generally, lusine hovhannisian, clinical legal education and the bologna process 12-17 (public interest law institute, 2006), avail. at http://old�pilnet�org/index� php?option=com_content&view=article&id456:pili-papers-no2&catid=122:featured (last visited 21 nov� 2011)� the so-called bologna process is an attempt to make eu higher education systems more compatible, competitive and quality enhanced� id� at 16� 83 in conversations on a subsequent visit to cameroon, my interlocutors suggested that the dominant frenchspeaking civil law regions of the country might be more receptive to the concept of pro bono, and perhaps clinical education, if they saw successful models in english-speaking western cameroon, with its common law tradition – or perhaps even neighbouring nigeria, which now boasts six law faculty legal aid clinics� see, sama, supra note 72 at 156, 158 (noting common law practice of assigning defence counsel in capital cases and early 21st century bar association experience with public legal aid centres, in partnership with the british council)� see also, network of university legal aid institutions, open society justice initiative & open society institute, clinical legal education curriculum for nigerian universities’ law faculties/clinics (oct� 2006)� 84 this is not just about north meets south, i.e. first world meets third world� there are a number of countries without a vigorous tradition of public interest lawyering, much less law school preparation for this kind of practice or practical training� see, e.g., peter a� joy, shigeo miyagawa, takao suami & charles d� weisselberg, building clinical legal education programs in a country without a tradition of graduate professional legal education: japan educational reform as a case study, 13 clin� l� rev� 417 (2006)� professor grady jessup suggests that a “development law clinic” – not to be confused with the discredited “law and development” movement – is a worthwhile model for those in developing nations, as it is concerned with nation building or national development�” grady jessup, symbiotic relations: clinical methodology – fostering new paradigms in african legal education, 8 clin� l� rev� 377, 400 (2002)� its “design and curricular offerings would take into account the conditions of the country and train law students as future leaders and lawyers to help address those conditions [footnote omitted]�” id� clinique togo 75 clinical model, as we have come to praise it, is not intrinsic to common law, 85 the development of law school clinics to provide service appears to be a creature of the anglo-american system� in contrast, the western european civil law countries – and france in particular86 – have historically failed to embrace clinical education or formation pratique� 87 a third easily translatable method for providing service employed in the u�s� legal system is the notion of mandatory pro bono hours for every practising attorney� the american bar association has “set the bar” by placing responsibility on each attorney to aspire to contribute a certain number of uncompensated hours to the defence of indigent clients and worthy cases or causes� 88 in africa, a system of pro bono work may be emerging, in which lawyers and paralegals provide free representation to indigent criminal defendants, independent of any state aid� 89 paralegals have 85 for an overview of models for clinical education outside the united states, with an emphasis on rationale and the importance of diverse, organic and country-specific programmes, see generally, wortham, supra note 6 and bloch, supra note 31� professor bloch warns against adopting a “clinical imperialism” approach in designing overseas curriculum and programme� id� at 132� this advice could also be heeded on one’s home turf� see, suzanne m� rabé and stephen a� rosenbaum, a “sending down” sabbatical: the benefits of lawyering in the legal services trenches, 60 j� legal ed� 296, 297, n� 2 (2010) (commenting on divisions amongst law faculty engaged in the clinical or experiential education enterprise)� see also, richard j� wilson, ten practical steps to organization and operation of a law school clinic (feb� 2004) (unpublished paper on file with author) (mechanics of creating a clinic) and ojienda & m� odour, supra note 70 at 53-59 (suggestions on implementing clinical programme at african university)� kenyan researchers ojienda and odour write that clinical legal education “has been defined simply as learning law by doing law…a method of instruction in which students engage in varying degrees in the actual practice of the law�” id� at 49 (citation omitted)� 86 in a telling remark, a colleague on the université d’artois law faculty replied to one of my emails with: “qu’est-ce que tu entends par’ clinique juridique’?” (“what do you mean by ‘legal clinic’?”)(email from arnaud de raulin, 15 aug� 2007)(on file with author)� professor rick wilson writes of one dual-degree french student who quipped: “after studying in france, i have no idea what the practice of law in france must be like�” wilson, supra note 11 at 832� for an explanation of the resistance of civil law countries to clinical education, see norbert olszak, la professionalisation des etudes de droit: pour le developpement d’un enseignement clinique, 18/7203 recueil dalloz 1172 (5 may 2005)(noting benefits of the venerable medical school training model and france’s lagging approach to clinical education for law students)� 87 reforms in european legal education call for more emphasis on practical experience� see, hovhannisian, supra note 82 at 14 (eu reform spurred by “rapidly changing legal environment,” growing number of students and, in post-soviet europe, by governments transitioning to democracies)� notwithstanding the relatively late and tentative experimentation with clinical education in many civil law countries, there is nothing inherently incompatible between this methodology and the civil law system� but see, pamela n� phan, clinical legal education in china: in pursuit of a culture of law and a mission of social justice, 8 yale hum� rts� & dev� l�j� 117, 140 (2005)(noting importance of recognising system differences)� 88 american bar association, model rules of professional conduct, rule 6�1, supra note 39� although the tradition in the united states is longstanding and increasingly formalized, it was not until october 2009 that the first national pro bono week was inaugurated� 89 see, e.g., african commission on human and peoples’ rights (achpr) resolution on the right to a fair trial and legal assistance in africa (1999) and dakar declaration and recommendations (hereafter, 1999 achpr resolution/legal assistance and dakar declaration), supra note 91 at 169, 175 (states parties should “[i]n collaboration with bar associations and ngos, enable innovative and additional legal assistance programs to be established including allowing paralegals to provide legal assistance to indigent suspects at the pretrial stage and pro-bono representation for accused in criminal proceedings”)� see also david mcquoid-mason, a series of pointers clarifying the role of paralegals, in access to justice in africa, supra note 3 at 291-295� 76 international journal of clinical legal education issue 17 made a significant contribution to the legal assistance efforts in some nations 90 i concluded my remarks by describing some of the independent efforts within africa to incorporate the idea of pro bono service into the practice of law� various declarations and other accords adopted by the african commission on human and peoples’ rights in the last decade or earlier call on the courts, the bar and law faculties to take on a greater role in assuring the judicial systems are accessible to their fellow citizens, particularly long-term detainees�91 although ratification of these texts does not by itself guarantee effective implementation, 92 the principles enunciated in them should nonetheless inform any african legal aid scheme�93 curiously, most seminar participants at ghis palace seemed to be unfamiliar with the declarations and action plans adopted by a series of african congresses of jurists, all of which have provisions requiring their promulgation and publication for lawyers, law students and the population at-large� again, the existence of the texts does not ensure that they are transmitted, even to those studying, teaching or practising law�94 this lack of familiarity also applied to knowledge about legal aid laws on the books in neighbouring countries, some dating back to the early years of independence�95 despite the relevance of outside models, i kept in mind the reality that in adapting a legal aid model, each country must take into account its own laws, traditions, habits and customs� 96 “the transplantation of laws and legal institutions is not always wrong, but formalistic transplantation should come with a caveat emptor� � � �”97 intermediary authorities can be more effective when 90 see, e.g., clifford msiska, rhoda igweta & edouard gogan, the paralegal advisory service: a role for paralegals in the criminal justice system, in access to justice in africa and beyond, supra note 3 at 145 and geraghty et al., supra note 37 at 65-71 (discussing virtues of paralegal model)� see also henry phoya, the view from government, in id. at 31-32 (court backlogs and insufficient numbers of lawyers, as well as traditional reliance on informal justice, favour malawi’s paralegal advisory service) and vivek maru, timap for justice: a paralegal approach to justice services in sierra leone, in id. at139 (variety of advocacy tasks provided by timap (“stand up together”) paralegals, based on south african model, in nation where there is distrust of corrupt formal justice system and rural population has no access to lawyers)� 91 see, e.g., lilongwe plan of action, supra note 32, at 48-49� see also, un basic principles on the role of lawyers (1990), reprinted in access to justice in africa, supra note 3 at 268-269; and 1999 achpr resolution/legal assistance and dakar declaration reprinted in id� at 169, 177 (“bar associations should…[e]stablish programs for pro-bono representation of accused in criminal proceedings���”)� 92 sama, supra note 72 at 161� 93 see generally, achpr resolution on the right to recourse and fair trial [sic] (1992) in access to justice in africa, supra note 3 at 167-68 (right of detainees to prompt judicial review, trial within reasonable time, legal aid for the needy� see also achpr resolution/ legal assistance and dakar declaration, id� at 169, 173 (“it is the duty of governments to provide legal assistance to indigent persons in order to make the right to a fair trial more effective�”)� 94 see, geraghty & quensah, supra note 14 at 97, 99 (outdated texts, inaccessible legal information and technology, poorly stocked libraries) and dauphinais, supra note 10 at 104-05 (“sophisticated-looking statutes and regulations” belies actual knowledge and familiarity due to unavailability of legal texts)� 95 see, e.g., loi no� 61-103/an-rm du mali (18 aug� 1960)(statute setting out terms for legal assistance in civil and criminal matters) and arrêté du sénégal (31 jan� 2006) (establishing commission to administer legal aid funds)� again, enacting legislation is only the first step� professor bloch recently observed that “the overall state of access to justice in africa remains ‘incomplete’ due largely to the lack of government-sponsored legal aid schemes�” bloch, supra note 31 at 118 n� 21 (citing first all-african colloquium on clinical legal education (june 2003), avail. at http://www�justiceinitiative�org/acivities/led/cle/durban2003/durban_report�pdf)� 96 sarah cliffe & nick manning, practical approaches to building state institutions, in charles t� call, supra note 6 at 169� 97 jensen, supra note 6 at 136� clinique togo 77 dealing with laws that are “broadly compatible with the pre-existing legal order”98 and governments are more likely to allocate resources to enforcing and developing the law and legal institutions when adapted to local needs� furthermore, without such integration of the pre-existing legal structure, the challenge of providing access to justice would prove to be much more formidable� mediation and other means of informal dispute resolution are some of the compatible models i highlighted for the seminar audience� 99 while one can hope to improve access to courts and enchance the court personnel and infrastructure, a far more affordable and realiseable short-term goal may be to sensitise village or neighbourhood chefs, councils of elders and family law judges, already engaged in traditional african conflict resolution, about contemporary human rights and other legal norms�100 the focus on encouraging good decisions at the local level also helps to strengthen new laws�101 lastly, having proposed several models for guidance and discussed their applicability, i urged the creation of a law school-associated clinic in togo, which could really benefit from a theory-practice collaboration resulting from the recent partnership agreement between the local bar association and the university of lomé�102 in short, togo presented a rare opportunity to establish a clinic in 98 id� (based on extensive regressions; footnotes omitted)� the observation is not peculiar to developing countries� “historically, the legal profession has resisted change and is generally slow to adapt to modifications to a system in which lawyers feel knowledgeable and adept…�lawyers will be more accepting of change if they feel that they are involved in the process, rather than having change forced upon them�(citations omitted)�” michael king, arie freiberg, becky batagol & ross hyams, non-adversarial justice 230 (2009)� 99 the movement to use alternative forms and forums for resolving legal disputes is one of the most dramatic changes in the practice of law, beginning in the latter part of the twentieth century and continuing� according to a group of common law scholars, “the emergence of a wide range of non-adversarial processes requires a re-appraisal of the conventional view of the lawyering role�” id� at 230� embracing non-adversarial methods also requires a change in legal education; clinical education already incorporates a good dose of non-adversarial justice methodology� id� at 240-43, 248-50� 100 see, stephen a� rosenbaum, le règlement non-juridictionnel comme alternative aux situations de crise in situations d’urgence et de droits fondamentaux (2006)� this chapter, outlining the benefits of the senegalese-inspired m�a�r�c� (méthodes alternatives du règlement des conflits), was drawn from remarks i made at the etatsgénéraux de la justice, 16-19 june 2003, n’djaména, chad� 101 open society institute, ensuring justice for vulnerable communities in kenya (2004) 26 (comments of former kenyan national human rights commissioner)� the so-called “customary law” offers its own rules and norms in a parallel system of justice� sama, supra note 72 at 153� the togolese constitution recognises the traditional chefs as the guardians of local traditions and customs (us et coutumes)� constitution de la répblique togolaise, art� 143� there is a school of thought favouring “deformalizing and deprofessionalizing” dispute settlement in developing countries as a means of assuring poor people’s access to lawyers, rather than “seeking to put more lawyers for the poor into the existing formal court structure�” see, wortham, supra note 6 at 636 (summarising professors david trubek and marc galanter’s critique of the law and development movement)� this conclusion, professor wortham adds, anticipates the arguement in the united states about the value of adr� id� 102 protocole de partenariat, supra note 34� but see, dauphinais, supra note 10 at 62 (customary laws may be inadequate for and detrimental to development, and multiplicity of legal systems may constitute barrier to national unity)� 78 international journal of clinical legal education issue 17 french-speaking africa�103 despite the adaptability of the nascent legal infrastructure, setting up any legal clinic would require mastery of some less theoretical dilemmas� as noted, lack of funding and staffing is a huge obstacle for legal clinics in developing countries� the most dilapidated u�s� inner city school is a palace next to some african university campuses� it is not simply that the paint is peeling, windows are cracked, the paths are unpaved and landscaping is untended�104 office space is limited and lacking in the usual fixtures and furnishings, classrooms are scarce and libraries are comprised of a few bookshelves and a single computer terminal�105 the commons, cafeteria, secretarial pools106 and student meeting rooms are all but non-existent� by comparison, contemporary u�s� law school clinics filled with carrels, computers and phones – and even the vintage storefront legal aid offices – are very well appointed� before locating a physical space for a future clinique juridique, it would be necessary to secure the personnel and institutional commitment� 3e jour in the last of the formal seminar presentations, judge hohoueto, the modernisation programme coordinator, spoke, appropriately enough, on the theme of “legal aid and the modernisation of justice in togo�” 107 she described the six objectives of the national program, which included improving accessibility to the legal system� hohoueto stated that widespread illiteracy and ignorance of law were factors that impeded the effectiveness of measures, such as the indigence 103 after my trip to togo i learned that rwanda’s université nationale rwandaise and université libre de kigali have each established a clinique juridique in recent years� the former has a walk-in clinic affiliated with the law faculty in butaré� see, http://www�law�nur�ac�rw/spip�php?article17 and http://www�tufts�edu/talloiresnetwork/?pid=180 (last visited 19 dec� 2010)� its rural-based clients walk miles for a consultation� kigali offers a one-credit legal aid clinic for third year students� see, http://www�ulk-kigali�net/index�php?page=programme---department-oflaw� (last visited 9 aug� 2010)� however, rwanda’s official language is now english, since the government transformed its entire education system from french to english in 2008� what was ostensibly a move by the former belgian colony to join the predominantly anglophone east african community and the commonwealth was also “a means of rejecting francophone influence and its association with the hutu regime responsible for the genocide�” chris mcgreal, “rwanda to switch from french to english in schools,” the guardian (14 oct� 2008)� a french-speaking clinic has operated in morocco for a few years, with support from the american bar association rule of law initiative� see infra, note 115� 104 of course, how can the grounds be better kept for universities and government ministries if the presidential quarters are not “up to code?” an investigative reporter who recently returned from guinea describes the presidential compound in terms romantic but despairing: “a series of flat-roofed three-story buildings made out of breeze blocks and painted light green, beige, and apricot���,” reminding him of low-income housing projects in florida� jon lee anderson, “letter from guinea: downfall,” new yorker 26, 29 (12 apr� 2010)� 105 professors geraghty and quensah declare that law school libraries “are in a sad state�” geraghty & quensah, supra note 14 at 99� professor dauphinais writes of the acute paper shortage and out-of-print textbooks in tanzania and uganda, “so that even local materials cannot be mimeographed for distribution to students… students compete for a tattered copy [of a casebook or text] in the library… [and] rely heavily on notes taken during lectures�” dauphinais, supra note 10 at 72� upon his return from a short-term stint in sierra leone, san francisco attorney elan emanuel noted the same infrastructure deficiencies in government offices, where electrical power shortages were a regular occurrence and one photocopier was shared by an entire agency� (conversation of 26 apr� 2010)� 106 the shortcomings are not limited to facilities� staff productivity may also be lacking� i am reminded of the public sector librarians in conakry, guinea who seemed to be on a day-long coffee break� apparently, things have changed little, several years – and one new government – later� a recent visitor to the minister of justice writes how he was escorted “past [the] receptionist, who was watching cartoons on tv with several other women�” anderson, supra note 104 at 30� 107 remarks of judge evelyne afiwa kindena hohoueto� rapport général du seminaire, supra note 59 at 7-8� clinique togo 79 provisions of the code of civil procedure�108 following judge hohoueto’s remarks, some of the assembled jurists raised questions about the issue of court fees and costs and their impact on access to justice� the modernisaton programme called for 100 million cfa francs to be set aside in special funds, expended over five years on an experimental basis to finance legal aid for the poor� not only do lawyers and notaries charge fees, but the marshals and bailiffs also require payment before service of summonses or subpoenas, or the seizure of goods�109 as there seemed to be no provision in togolese law for fee waivers, judicial process was simply unavailable for numerous would-be litigants�110 after the discussion, participants divided into two working groups: the first group’s theme, predictably, was: “reflection and proposal of a legal text on the utility of legal aid in togo�” the second theme was: “reflection and writing a programme for teaching legal aid to capalevel students�” i sat in on the second working group, where some of the seminar’s formal plenary session protocols had carried over� in an american setting, a scribe or reporter might volunteer to do duty at this juncture� in this working group, however, a chair was chosen more-or-less by acclamation; he then received comments from the others in an orderly fashion� none of the academics – if any remained at the symposium – participated in this group, but there were veteran attorneys and those who had recently been students themselves� it also appeared that any recommendations made at this gathering about a changed curriculum or establishment of a legal clinic would be subject later to a formidable and centralized decision-making process� at a minimum, a change in law school policy or practice would need approval by university authorities or even the ministries of education and justice�111 the working group discussed the addition of new law courses: legal aid, social justice, clinical techniques, legal practicum� there was also talk about training paraprofessionals, and references 108 sections 405, 406 & 407� a lawyer activist from neighbouring cameroon agrees that illiteracy and rural isolation contribute to the lack of awareness of legal aid schemes and fundamental rights� sama, supra note 72 at 160� 109 in the democratic republic of congo, for example, police officers may ask crime victims for “fees” before an investigation or arrest� international bar ass’n & int’l legal assistance consortium, rebuilding courts and trust: an assessment of the needs of the justice system in the democratic republic of congo 21(2009) (hereafter rebuilding courts and trust), avail. at http://www�ibanet�org/article/detail�aspx?articleuid=6c2be523-f512-48c1-b09cfc9a8b1d0aab� 110 even in countries that allegedly offer fee waivers, it may still be difficult to actually obtain one� for instance, in the democratic republic of congo, a would-be legal aid recipient must first obtain a certificate of indigence� local authorities may charge from $15 to $30 issue one� rebuilding courts and trust, supra note 109 at 21� under cameroonian law, attorney services must be remunerated, which “seems to erode the very essence of legal aid, as it implies that���lawyers are only available to those who can pay�” sama, supra note 72 at 154 (citing law to organise practice at the bar, no� 90-59, § 1 (19 dec�1990))� 111 according to one analysis, it has been the private law schools – with their younger generation of faculty and competition for students – who have been quick to embrace innovative curriculum, such as clinical education� hovhannisian, supra note 82 at 14-15� in the francophone african academic world, this observation is borne out by the receptiveness of both the université libre de kigali (rwanda), see supra note 103, and the université libre des pays des grands lacs (drc), which has recently indicated an interest in starting a law school clinic, in partnership with an ngo, to serve survivors of gender-based violence in rural eastern congo� 80 international journal of clinical legal education issue 17 to clinical education in south africa�112 externships, as part of the law school curriculum, could offer future lawyers the opportunity to work directly in law firms, ngos and public law offices� for example, students would work under the supervision of an attorney for a specified time, for the purpose of acquiring professional experience, absorbing values inherent to the profession and mastering the professional code of ethics�113 in examining possible curriculum changes, the group focused on instituting practical or skillsbased clinical education, inculcating the spirit of volunteerism and social justice, permitting students to acquire legal knowledge before becoming practitoners� as already noted, there are now legal clinics throughout africa� these clinics sometimes specialize in a particular field of law or clientèle�114 but, with few exceptions, these clinics are all situated in anglophone countries with a common law tradition� 115 nonetheless, the obstacles to developing law school clinics in africa have more to do with traditional legal educational models than the country’s particular inherited legal scheme� this problem begins with the type of instructors available� for the most part, professors are recruited directly from the academy, with no law practice experience or training� classes are almost exclusively about theory, delivered lecture style in a large hall, with minimal to no student 112 for lessons gleaned from the south african experience, see generally maisel, supra note 41� see also, david mcquoid-mason, the supply side: the role of lawyers in the provision of legal aid – some lessons from south africa, in access to justice in africa, supra note 3 at 112: (law clinics provide free legal services to the needy in the lower and high courts in both criminal and civil matters in south africa; law students may not represent clients in court but may work on other aspects of cases� 113 the literature on externships is too voluminous to cite here� with regard to programmes for large student bodies, see, e.g., mary jo�eyster, designing and teaching the large externship clinic, 5 clin� l� rev� 347 (1999) and james h� backman, practical examples for establishing an externship program available to every student, 14 clin� l� rev� 1 (2007)� for an extensive annotated bibliography on externships, visit http://www�cua�eduen practical steps/lexternweb/index/htm� 114 see geraghty et al., supra note 37 at 75 (noting that many nations have established, or are currently establishing, legal aid clinics associated with law schools)� clinics exist in sierra leone, ghana, nigeria, kenya, uganda, tanzania, zimbabwe, botswana, malawi, south africa and lesotho, although not all are affiliated with law schools� geraghty & quansah, supra note 14 at 100� clinics have also been put in place in rwanda, morocco, egypt and ethiopia, where the legal systems are not derived from english common law� a new environmental law clinic opens its doors in february 2012 at the helwan university faculty of law, just outside cairo� 115 in 2005, a human rights legal aid clinic was established at the mohammedia, morocco law faculty at the university of hassan ii with support from the american bar association african initiative and the u�s� state department� moroccan law is based on french civil law and french is still the primary language of university instruction� the clinic, the first of its kind in north africa, is now under law faculty management� https://www�abanet�org/rol/news/news-morocco-curriculum-addition�html (last visited 26 june 2010)� see, practical manual for activities of the centre de conseil et d’assistance juridique pour les droits humains (mar� 2006)(on file with author)� see also supra note 103 (clinics operate at rwandan law schools, where the official language is now english, but french is still widely spoken in professional, commercial and government sectors�)� to the extent it is important for prospective clinicians to look for support and guidance from peer institutions, the university of lomé should develop a working relationship with the francophone faculty in rwanda or morocco� while there are a limited number of american clinicians who are proficient in french, some of the canadian law schools have established french-language clinical curricula and programmes� see, e.g., https://capsuleweb�ulaval�ca/pls/etprod7/bwckctlg�p_disp_course_detail?cat_term_in=201001&subj_ code_in=drt&crse_numb_in=2206 (service juridique offered for “university community” at université laval) (last visited 2 aug� 2010); http://www�droit�umontreal�ca/baccalaureat_droit/formationpratique�html (similar clinical offering under the rubric of formation pratique at the université de montréal)(last visited 2 aug� 2010); and http://mlic�mcgill�ca/cijm�html (mcgill university’s bilingual clinique d’information juridique)(last visited 9 aug� 2010)� clinique togo 81 interaction or opportunities for formation pratique�116 upon further working group discussion, it became apparent that students who enter the faculty of law right out of secondary school may have too little background or professional orientation at that stage to fully participate in a legal clinic designed for would-be lawyers�117 this viewpoint has been echoed by other scholars in the field� professor frank bloch, an active gaje member, has previously observed that a clinical programme for an upper teen at an undergraduate college of law in a “lecture-based, code-dominated curriculum” may look different than it does for his american law school counterpart� according to bloch, the american student tends to be older, desirous of a career in the legal field and engaged in an “interactive and advocacy-oriented course of study�” 118 professor kirsten dauphinais notes other ways in which african law students may be unprepared to adopt some of the american innovations�119 one must adopt a model that is compatible not only with national legal institutions and practices, but also with the educational system� professor leah wortham, a veteran clinician in the international arena, goes further with her sage advice that american consultants not be wedded to their “home country model” of what constitutes a law school clinic�120 professor richard wilson has devised a ten-step program in clinic construction, complete with five foundational 116 see, geraghty & quensah, supra note 14 at 90, 97, 100 and dauphinais, supra note 10 at 67-69, 91� 117 this point was reinforced in conversations i had with faculty and others on subsequent programme visits to the universities of dschang, yaoundé, maoura and n’gaoundéré, in cameroon� 118 bloch, supra note 31 at 115� but see, hovhannisian, supra note 82 at 15 (european universities that enrol students in law faculties just after secondary school now recognise the need for “practical training at the early stages of legal education”) and james marson, adam wilson & mark van hoorebeak, the necessity of clinical legal education in university law schools: a uk perspective, int’l j. clin. legal ed. 29, 41-42 (aug� 2005) (noting appropriateness of clinics at undergraduate level)� 119 being accustomed to overly formalistic, theoretically-based teaching is only one barrier� students may come to the university from resource-poor secondary schools� english (or french) may well be a second, third or fourth language and students from diverse backgrounds may have had little cross-cultural interaction before they begin their tertiary education� dauphinais, supra note 10 at 95� the challenge is also “teaching students in an educational culture that is not student-centered, that is lecture-based, and that favors passivity and deference…” id. see also, geraghty & quensah, supra note 14 at 100 (warning that “pervasive politeness” of african law students not be mistaken for enthusiasm for interactive teaching methods)� 120 wortham, supra note 6 at 670-74� wortham, however, seems to discourage the practicum or externship model as bona fide clinical education� id� at 660� but see, geraghty & quensah, supra note 14 at 100 (qualifying “carefully supervised student externships” in government agencies, ngos, and human rights organisations as a “clinical” model) wortham, supra note 6 at 670-74� wortham, however, seems to discourage the practicum or externship model as bona fide clinical education� id� at 660� but see, geraghty & quensah, supra note 14 at 100 (qualifying “carefully supervised student externships” in government agencies, ngos, and human rights organisations as a “clinical” model) id� at 2�pedagogically, financially and/or logistically, the leap to an in-house clinic may be just too great for some institutions— at least in the initial stages of experimenting with experiential education� the externship or field placement has evolved into a more robust and credible vehicle for learning and practice, thanks to efforts by the american bar association and by a number of able law school professionals and academics—including professor wortham herself� see, e.g., aba standards and rules of procedure for approval of law schools, standard 305 (study outside the classroom), avail. at http://www�americanbar�org/groups/legal_ education/resources/standards�html (last visited 21 nov� 2011)� see also, learning from practice (j�p�ogilvy, leah wortham & lisa g� lerman, eds�) (2d ed� 2007) (textbook used in a number of u�s� law schools for extern students’ classroom component)� on the other hand, professor dauphinais points out that “[t]he average african law firm is small and often poorly organized” and experienced lawyers may be “too busy to assist in the development and training of the young lawyers” and “may merely perpetuate the relatively low standards of old�” dauphinais, supra note 10 at 91-92� this critique is familiar to externship detractors� but see, ojienda & odour, supra note 70 at 56-57(externships utilised, together with classroom simulations, to give students clinical experience that is otherwise absent in law school curriculum)� 82 international journal of clinical legal education issue 17 principles�121 although the working group had not raised the issue, i knew from past experience and research that funding the clinic could also prove to be a huge hurdle� the american government’s expectation is that the host government or academic institution will commit its own resources to a clinic, and not rely exclusively on the united states or other foreign donors� togo was not in a position to easily allocate such funds�122 as i listened, i was pleased with the direction of the discourse, as these were themes i had promoted earlier in the week� but, as a foreign advisor and non-togolese jurist, i was wary of steering the group toward a predetermined conclusion, rather than allowing the togolese to organically develop and nurture their own proposals� 4e jour the final plenary of the symposium was devoted to reports from the working groups�123 members of group one proposed the adoption of an executive order or décret to implement the existing indigent assistance statute, article 10, by laying out a definition of legal aid, conditions of access and limitations� even in this proposal there remained a near obsession with the failure of the executive to implement the statute’s spare but precise text for almost three decades� it was as if until the decree were issued and the bureaucratic machinery cranked up, no legal assistance could be offered the poor� on the other hand, the executive delay might be considered reasonable in light of the constitutional separation of powers between the independent judiciary and the government�124 under this framework, action by the executive branch to implement judicial guarantees such as access to the courts, might conceivably be viewed as interference� this tension may well explain the stagnation of the law, even in light of a democratic transition in togo� group one also called for the installation of orientation and assistance booths in all togolese courts� the group advocated for promotion and reinforcement of the role played by the bench 121 wilson, supra note 85� under wilson’s definition of a clinic, it must be part of the law school curriculum, offered for credit, and be accompanied by a course using experiential methodology� its students should be engaged in actual cases or projects, supervised by experienced attorneys, on behalf of clients who may otherwise go unrepresented� professor iya, writes, supra note 65 at 18, that clinical education in africa may be called “skills training” or “professional training�” these are concepts that tend to be devalued by american purist clinicians, as well as doctrinal law faculty� the former view them as a diluted form of the live-client, intensive supervision and reflective lawyering experience, and the latter dislike the trade school connotation� for an overview of how african clinical models draw on professional skills training and simulation and writing exercises to complement live-client representation, see, e.g., dauphinais, supra note 10 at 93-94, 111-13 and ojienda and odour, supra note 70 at 53-56� 122 funding, and particularly local funding, will be a constant concern� the small faculty-student ratio inherent in most clinical programmes is reason enough to ask how can one expect african law schools to invest in what their american counterparts continue to view as an expensive educational venture? geraghty & quensah, supra note 14 at 102� in an important display of solidarity and continental self-determination, the african union (au) has urged richer african nations to regularly fund higher education in poorer nations where internal and other sources were not available� au, second decade of education for africa (2006-2015) plan of action, revised at 2 (aug� 2006), avail. at http://www�education�nairobi-unesco�org/pdfs/second%20decade%cc20of%cc20ed ucation%cc20in%cr ica_plan%20of%20action�pdf (cited in geraghty & quensah, supra note 14 at 96, n� 52)� this is not likely to lead to overflowing coffers any time soon� hence, the “call for action” for the philanthropic and academic communities to fund personnel and infrastructure and otherwise support innovative, revitalized african legal education� id� at 104� see also, dauphinais, supra note 10 at 95, n� 233 & 120 (limited public funding and other resource constraints in african law schools)� 123 rapport général du seminaire, supra note 59 at 9-10� 124 sama, supra note 72 at 161� clinique togo 83 and bar� this approach would include legal aid programmes based in law faculties� these innovations could truly foster a pro bono ethic, building on the current bénévolat and annual visits by lawyers to the prisons�125 it could also give meaning to the recently adopted protocol between the lomé bar and the law school� group two proposed similar changes� it called for a training programme, with theoretical and practical emphases, as an elective at the judicial college and faculty of law� the theoretical curriculum would focus on conceptual definitions, ethical norms, legal foundations, interuniversity exchanges and alternative methods of conflict resolution� the practical programme would concentrate on statutory amendments [redaction d’actes], “drop-in and orientation” centres and legal clinics,126 and reliance on paralegals�127 the objective, the group’s members said, was to give future attorneys and judges the necessary tools to familiarise citizens with their rights and facilitate their access to justice� when other seminar participants expressed some concern about the clinic proposal, the working group responded that its mandate was to suggest a general orientation about instilling a “legal aid consciousness,” while leaving it to the university to determine the practical methods of teaching the subject matter�128 125 in countries without large law firms, a central agency, such as a bar association, may assign cases to pro bono attorney members� geraghty et al., supra note 37 at 80� however, under such schemes, assignments often fall to young and inexperienced lawyers� to develop a more effective model for delivering legal aid, even with financing challenges, the aba rule of law initiative partnered with the moroccan federation of young lawyers and the rabat bar association to organise a study tour for six prominent moroccan lawyers� https://www�abanet�org/ rol/news/news_morocco_new_legal_aid_model_0110�shtml (last visited 26 june 2010)� of course, a new lawyer’s eagerness and earnestness should not be discounted� one west african commentator observes that the “new wigs” may even wait in the courtroom for cases to be assigned to them, a sign of “their disposition to provide legal assistance to desperate defendants�” sama, supra note 72 at 157� 126 according to professor wilson, “…[a] law school can call its clinical legal education program by any name – live-client clinic, legal aid, field placement (externship or internship), street law, simulation or role-play, apprenticeship or any other local name – so long as the focus is on student experiential learning – learning by doing – for academic credit�” wilson, supra note 11 at 829� professor bloch asserts that “access to justice” is a “central component” of clinical education in the u�s� and abroad� see, bloch, supra note 31 at 111 & n� 1 (citing sources that document role law school clinical programmes play in assuring equal access to law and the legal system)� the three key elements of clinical education, according to bloch, are: “professional skills training, experiential learning, and instilling professional values of public responsibility and social justice�” id� at 121� see, appendix ii, a bleuprint [sic] for a francophone african law school clinic� 127 on the current use of paralegals and non-lawyers in african legal regimes, see geraghty et al., supra note 37 at 53; stapleton, supra note 3 at 20� david mcquoid-mason, the supply side: the role of lawyers in the provision of legal aid – some lessons from south africa, id� at 97� see also, david mcquoid-mason, “pro bono work by the legal profession and clinical legal education” (powerpoint, n�d�) (on file with author); iya, supra note 65 at 19 (clinical programmes used to train paralegals); and stephen a� rosenbaum, the juris doctor is in: making room at law school for paraprofessional partners, 75 tenn. l. rev. 315 (2008) (urging law schools to co-educate future lawyers and future lay advocates and paralegals)� 128 the skepticism about clinical methodology expressed by the togolese bar and academics might also resonate with american clinicians who have a fine-tuned sense of what is fundamental to a clinic� as noted above, the projet clinique juridique berkeley-goma, in trying to launch a law school clinic for women survivors of genderbased violence, had to temper its ideas about programme content, service delivery and objectives – even on what might be considered the essentials – when reconciling its proposal with the one conceived by the goma-based law faculty and ngo� flexibility is the byword of veteran international clinicians bloch, wilson and wortham when it comes to designing the appropriate model� see, supra notes 120-21,126 and accompanying text� professor jessup also reminds us that “[a]lthough the american experience is informative and may provide guidance to an african law school contemplating a clinical program, it is imperative that any attempt to incorporate a clinical experience into a current african law school curriculum take into account a cognizance of the political structure of governmental organizations and customary norms� [footnotes omitted]�” jessup, supra note 84 at 380� 84 international journal of clinical legal education issue 17 before the closing ceremony, those assembled adopted the recommendations of both working groups in a final report�129 the session adjourned and we abandoned the air-conditioned hotel meeting room for the hot, dry, late afternoon air� participants completed twenty evaluation forms and returned them to the embassy staff� with the exception of remarks about hardship associated with travel to the site, the comments were all positive in endorsing the seminar themes and recommendations� when asked to name three ideas they retained from the seminar for use in their professional life, many referred to the concept of practical legal education, including: cliniques juridiques, externships for upper-level law students, and fostering a legal aid ethic in the curriculum offered at the law faculty and the ecole nationale de la magistrature� others referenced the need to finally implement article 10, create a legal aid funding scheme, establish a pro bono programme, and to set affordable attorneys’ fees for clients� another mentioned increased utilization of paralegals and more know-your-rights outreach to the public about legal assistance� one participant liked the comparative law perspective� 130 as for suggestions for the future, respondents indicated that more such practice-orientated continuing education seminars should be held� they urged expanding participation to bailiffs, marshals, clerks, notaries, law students, judicial college students, senior attorneys, the human rights minister, and members of civil society and non-governmental organizations� rather than restrict such gatherings to the capital, participants urged that seminars be held in other cities throughout the country and that they be open to the media� another respondent was anxious to see positive effects from the group’s recommendations and produce the fruits of their labour (“produire leurs fruits”) in a reasonable amount of time� in the same vein, another voiced concern that the work product not collect dust in file cabinets (“classés dans des tiroirs”)� 131 before planning the next steps, the coordinators and a small group of participants celebrated the close of the program at a dinner at the home of maître attoh-mensah� an established member of the bar who supports human rights causes and appeared to share the aims of the seminar, attoh-mensah had previously traveled to the united states on state department legal reform exchanges�132 the chair of national human rights commission, 133 koffi kounté was among the guests� one of my embassy hosts had informed me that he had a genuine concern about prisoners 129 rapport général du seminaire, supra note 59 at 10� 130 fiches d’evaluation (on file with author)� 131 id� 132 me� attoh-mensah and his counterparts in other african nations are the kind of informal leaders who could be influential in promoting new legal initiatives� they could also just as easily be dismissed as privileged blowhards or junket seekers – or even what dean garth, supra note 16 at 396, calls the “cosmopolitan elite” – whose objectives are focused more on self-aggrandizement and economic or political gain than socio-juridical improvements� in her evaluative toolkit for funding legal clinics, professor wortham reserves a large space for testing the “competence, sincerity and integrity” of those involved� wortham, supra note 6 at 669� although a challenging trait to measure, the advice is equally apt for funding any start-up� wortham suggests relying on locals to evaluate and to do over time, and in multiple settings� id� at 669-70� 133 constitution de la république togolaise, art� 133 (creation of the commission nationale des droits de l’homme, an independent national human rights commission)� clinique togo 85 with mental illness� 134 he struck me as someone in a position of responsibility with whom i should have some follow-up contact about treatment of detainees� we exchanged email addresses� we talked about the delays in processing prisoner cases135 and how this was particularly detrimental for mentally ill detainees� i suggested that student or postgraduate stagiares,136 might help judges alleviate their docket� he seemed a bit skeptical at the prospect of anyone but the judge actually managing a case� to me, however, encouraging the judiciary to utilize students is merely a variation on the larger effort to convince the bar to supervise and train its future members� we continued our informal conversations over a meal served in a gated courtyard under the stars, with no particular agenda and no need for decision making� it is important to have this type of meeting with prospective reformers, outside of formal settings� there is more opportunity for candor and reiteration� this is particularly the case where the conference is long on theory and short on pragmatics� for real change to take place, we must develop interpersonal relationships to build confidence and to continue the dialogue once the seminar banner is packed away� i regret that i am not always able to maintain these contacts upon departure or to monitor progress on proposed reforms� 5e jour the bar association devoted the day after the seminar to a presentation of the conclusions and recommendations to the full bar membership and the media� i shared the podium that morning in a darkened hall at the bar association headquarters, with the bar’s programme coordinator, maître afangbedji, who also served as liaison to the embassy�137 the auditorium was full� i recognised very few people from the seminar, and i was uncertain who in this crowd was an attorney, a journalist, a government official or a ngo activist� me� afangbedji and i each spoke briefly about the recommendations made at the close of the ghis palace conference concerning legal aid, voluntary lawyer services and legal education� we 134 african prison conditions, including treatment of mentally ill prisoners, is the subject of two extensive human rights declarations issued after pan-african conferences held in the past several years� the declarations are laden with all the right words, just waiting to be given meaning� see infra notes 135, 14145, 149-51 and accompanying text� as mental health law and disability rights are some of the subjects i teach, i have a particular interest in the sub-population of incarcerated persons with mental disabilities� i also worked as a staff attorney for a disability civil rights ngo for over a decade, although i have not traveled to africa in that capacity� 135 notwithstanding statutory and constitutional guarantees, delay in the judicial processing of pretrial detainees is the norm in a number of countries� see, e.g., rebuilding courts and trust, supra note 109 at 22 (up to 75% of congolese detainees were awaiting trial in 2009) and federica dell’amico, the impact on prisons: overview of problems leading to high prison overcrowding, in access to justice in africa, supra note 3 at 297, 299-300 (inefficiency of criminal justice system)� see also, kampala declaration on prison conditions in africa (1996) (hereafter, kampala declaration) reprinted in access to justice in africa (recommending that judiciary ensure prisoners are kept in remand detention for “the shortest possible period” with regular review), reprinted in id� at 223; and ouagadougou plan of action (on accelerating prison and penal reform in africa (2002)) (hereafter, ouagadougou plan of action)(recommending speedy processing of trials by police, prison services and courts and reduced delays of remand detention), reprinted in id� at 234� these declarations and plans of action, along with other related texts, are also available at http://www�penalreform�org (last visited 16 july 2010)� 136 this translates as “apprentices,” “externs,” “interns” or “pupil-lawyers�” 137 maître gil-benoît afangbedji, ordre des avocats, lomé� 86 international journal of clinical legal education issue 17 referenced the lomé bar association-law school protocol signed earlier that year�138 what neither of us noted is that in establishing a law school clinical programme of any sort, the temptation is to rely on members of the private bar or an ngo-affiliated attorney, as they have more practical knowledge and experience than the professoriat� for long-term sustainability, however, it is necessary to have law faculty involvement�139 questions and comments followed� most of the audience comments focused on the role of paralegals, law student clinics and student externships� more than one lawyer expressed skepticism about this advocacy model� their concern generally centered on competition for clients, professional integrity or both� 140 bar associations in many countries tend to be ingrown and protectionist, with controlled access to membership� although small in numbers, the togolese bar is no less concerned than its counterparts in developed countries about non-lawyers giving advice and counsel�141 in addition to asking about the programme, members of the media also asked about the united states’ human rights record at home� these questions are typical of the inquiries made to official visitors� reporters and others asked about the death penalty and its uneven application across the states, the status of guantánamo bay detainees, police abuse and racism� although embassy staff during other program visits have sometimes tried to shield me from impertinent or provocative questions, i did not feel the need to censor my answers� in fact, i believe these issues merit discussion even in the context of a rol conference, in part because a government that is promoting democratisation and celebrating civil society and rule of law must bare its own account� accordingly, journalists often take advantage of the opportunity to question an american visitor even if these are not the topics on the speaker’s menu du jour� after the press conference and some individual tv and radio interviews, i walked down a long unpaved road with a group of lawyers, in the late morning heat, to one of the principal prisons in lomé� most of these lawyers were newer members of the bar, including stagiares, and had attended the ghis palace seminar� i am not sure if the trip to the prison was impromptu or anticipated, but i was glad for the chance to have a personal observation of the prospective clients whose prolonged detention prompted the renewed call for legal assistance� about eight to ten of us entered a dusty prison yard in our suits and ties� the scene before us was overflowing with humanity, and yet a degree of normalcy, as if all the hot, sweaty, teeming life of the streets and shanty towns was transported to this sunny open, but densely populated space� i saw only a few uniformed guards, and they did not carry weapons� near the entry, a plainly lettered sign had been posted by the european union142 with the number of current detainees—a number 138 protocole de partenariat, supra note 34� 139 wortham, supra note 6 at 669� professor maisel’s colleagues in south africa agree that the campus leadership must share the clinical vision� maisel, supra note 16 at 487-88� 140 the same comments have been made by private lawyers and bar associations in the west and elsewhere in africa� see, e.g., rosenbaum, supra note 127 at 322-23 (u�s� attorneys and bar associations voice concern about inexperienced, untrained and/or unsupervised lay advocates) and open society institute, supra note 101 at 24 (concern of private lawyers in kenya)� 141 wortham, supra note 6 at 662� 142 the european union has helped support the pan-african conferences on penal reform has had an on-going interest in detention and incarceration practices in african countries that are recipients of eu assistance� see, e.g, http://allafrica�com/stories/200809080090�html (last visited 16 july 2010) (human rights training for ugandan prison officials)� clinique togo 87 i do not recall� was this meant to assure monitors and visitors, or was it displayed as a proud banner, to see how togo ranks on the overcrowding scale with its neighbours on the continent?143 the prison yard was a picture of petit commerce, visiting, the biding of time� it was at once industrious and carefree� off to the sides were dark caves of cells filled with thin mats, and walls hung with laundry and personal effects� there were no bars on the cells� masses of shirtless men and boys were talking, sitting, lying down, selling, buying� we came as sympathetic observers, and yet it was hard not to feel like voyeurs� the kampala plan of action, which followed the 1996 conference on prison conditions in africa, recommends educational activities, skills-based training and a work programme, incorporating elements of self-sufficiency and sustainability�144 the 2002 ouagadougou plan of action recommends nationally certified vocational training, rehabilitation and development programmes, with ensured access for “unsentenced” prisoners, literacy and skills training�145 the latter plan also calls for more self-sufficient prisons by fostering prison agriculture, workshops, locallymanaged industries and other enterprises “for the good of prisoners and staff�”146 none of that was happening here� chez les femmes, the women’s section, revealed a slightly different story� the handful of incarcerated women (and one or more with a child) were actually separated from the men� throughout the world, women are a minority of the prison population, but their numbers are increasing� according to penal reform international, the increase is “fueling the global trend” toward overuse of imprisonment and under-use of alternative sanctions�147 at the lomé prison, their quarters were more spacious than the men’s� they were almost homey in a modest way� not all was out of sync with the lofty declarations and plans of action: the staff proudly showed us how 143 see, e.g., rebuilding courts and trust, supra note 109 at 22 (in drc, cells are overpopulated, minors not segregated from adults and pretrial detainees are not separated from convicted criminals); sama, supra note 72 at 155 (overcrowding and unsanitary conditions in cameroon, where “vulnerable groups like women, women with babies, juveniles, the elderly, and terminally ill” are amongst the long-term pretrial detainees)� as noted above, three pan-african conferences held since 1996, have resulted in declarations and plans of action aimed at eradicating long-term detention and unsanitary and desultory prison conditions� in addition to the declarations of kampala and ouagadougou, supra note 135, the lilongwe declaration and plan of action also address legal aid to prisoners� see, lilongwe plan of action, supra note 32 at 48-49 (better judicial processing of detention cases, more use of paralegal services, easier access to prisons by ngos, community-based organisations and faith-based groups)� the comparison with advocacy efforts in the united states to eliminate prison overcrowding and impove health care is a bit surreal, given the contrasting conditions and standards� see, e.g�, brown v� plata, __u�s�__, 131 s�ct� 1910 (2011) (affirming lower court order that state of california must substantially reduce prison population due to overcrowding); coleman v� wilson, 912 f�supp� 1282 (e�d� cal� 1995) (mandating overhaul of prison mental health system)� 144 kampala plan of action on prison conditions in africa, reprinted in access to justice in africa, supra note 3 at 226� many prisoners require only minimal security and “should be accommodated in open institutions�” the incarcerated should involve themselves in “educational and productive activitie with the support of staff�” id� at 228� 145 id� at 235� 146 id� in addition, the united nations adopted a set of “minimum rules” for treatment of prisoners in 1957 and another set of rules in 1990 for non-custodial measures for pretrial detainees, as well as principles for the protection of all detained and imprisoned purposes (1988)� these are available at http://www�un�org/disarmament/convarms/ attprepcom/background%20documents/compendiumofunstandardsandnormsincrimeprevention�pdf� 147 see penal reform briefing no. 3 (2008)(1), avail. at (http://www�penalreform�org/publications/penal-reformbriefing-no3-women-prison-0 (last visited 19 dec� 2010)� the largest numbers of incarcerated women are actually in the u�s�, russia and thailand� id� 88 international journal of clinical legal education issue 17 some of the women were learning to sew as an eventual trade� we were told there was a woman prisoner with a mental disability� “c’est une folle�”148 i do not remember if i caught a glimpse of her, isolated in a dark cell, or if there were just the whispers� on the subject of mentally ill prisoners, the kampala and ouagadougou conferences yielded some broad legal standards� the kampala declaration and plan of action, for instance, urge the adoption of “urgent and concrete measures” to improve conditions for persons with mental illness and disabilities, including adequate treatment during arrest, trial and detention, and that access to doctors be allowed�149 the subsequent ouagadougou action plan recommends prison alternatives for people with “mental health or addiction problems;” and social and psychological support by professionals�150 yet, there we were, witnessing what we and other legal reformers in africa hoped to alleviate� it is possible that “sidebar” conversations were taking place outside of earshot, and the attorneys accompanying me were able to process minor cases on the spot, helping to clear the backlog of pretrial detainees� surely, that is what happens during the periodic journées de consultation juridique gratuite� could those free consultation days be institutionalized through a routine bar association pro bono programme? could a law student clinic assist those lawyers or help train paralegals, or provide community education and outreach to families, street merchants, secondary school students, rural villagers and others?151 could law students serve as externs to magistrates to help them clear the detention backlog? a few small and creative steps could begin to breathe life into the promises embedded in a plethora of declarations, action plans, minimum standards, principles, statutes and constitutions� 6e jour as disability rights is the bread-and-butter of my law practise in the united states, i try to find ways to make some connection to the local disability community on these speaker specialist 148 “it’s a crazy woman�” 149 see, kampala declaration, supra note 135 at 222, and plan of action, id� at 227� the declaration also recommends that non-custodial measures be used in lieu of imprisonment� id� at 225� 150 see ouagadougou plan of action, id at 233 & 235� one of the ouagadougou declaration’s principles is that governments recognise they are ultimately responsible for ensuring “prisoners can live in dignity and health�” id� at 232� 151 see, lilongwe plan of action, supra note 32 at 49 (encouraging governments to establish prison paralegal services to assist with bail and release, prisoner legal education and self-help, appeals and special assistance to vulnerable groups)� a few months before my visit to lomé, the embassy published a guide on the rights of detainees� “le nouveau guide des droits du détenu remis aux autorités,” usa-togo: bulletin d’information de l’ambassade des etats-unis au togo 12 (jan�-june 2007) (on file with author)� clinique togo 89 visits�152 the best i managed during my stay in togo was a saturday morning excursion to the local marketplace, where my penchant for local artisanry brought me in contact with an organisation supporting people with disabilities� located in the rural northern zone of togo, the coopérative des handicapés de niamtougou (codhani) is composed of persons with physical impairments who produce crafts for sale in the capital and abroad� its goal is to improve living conditions for disabled persons and support their social and economic integration into society�153 i found codhani’s shop in lomé, after wandering through a warren of vendors–fabrics, spices, potions, ceramics, household goods–with the help of an embassy aide and after many inquiries for directions� in the constellation of recognised human rights, those associated with disability are among the most recently established�154 in 2005, togo enacted a law prohibiting discrimination against persons with disabilities in employment, education and access to health care and government services, but, according to the state department, it is not “effectively enforce[d]�”155 while i would have preferred contact with an advocacy or service provider ngo, i was pleased to purchase colourful tie-dyed fabrics made by and for the economic benefit of individuals with disabilities� post-script the tape that keeps playing in my head throughout this and other visits goes something like: les conferences, les entretiens, les visites� the lectures, the meetings, the visits� a quoi ca sert, tout ca? what is it all about?156 in the end, it may be simply about a beginning: perhaps an opportunity for dialogue – between visitor and hosting jurists, or amongst local jurists who rarely get together 152 on a subsequent trip to africa, the embassy arranged a visit to the modest headquarters of goodwill cameroun, a national multi-disability services and advocacy organisation based in the capital, yaoundé� it was evident at the time of our meeting – and more so in email exchanges with goodwill’s president since then – that even a brief dialogue with a foreign visitor who understands disability issues is an act of immeasurable solidarity and support for a ngo� rapport de visite à goodwill-cameroun (2009)(on file with author�) a year later, the u�s� cultural affairs officer in dakar asked if i would meet with a federation of disability rights ngos� “it’s such an under-served population in senegal,” she wrote� “i hope that’s not too far off field to ask you to meet with them, but we noticed in your cv that this is also one of your areas of expertise�” (email of 13 sept� 2010 from kristin stewart) (on file with author)� the irony in this request was not only the embassy’s off-handed discovery of my primary field of legal expertise, but that management staff at my law office, disability rights california, saw little value in my work in africa, which they considered a distraction from their organisational mission)� 153 see, http://www�facebook�com/pages/coop%c3%a9rative-des-handicap%c3%a9s-de-niamtougou/1596180 54050727#!pages/coop%c3%a9rative-des-handicap%c3%a9s-de-niamtougou/1596180540727?v=info_edit_ sections (last visited 12 nov� 2011)� 154 see, e�g�, united nations convention on the rights of persons with disabilities�http://www�un�org/disabilities� almost one year after my visit, togo signed the convention and optional protocol, in 2008 and, unlike the united states, it ratified the treaty and protocol in 2011� http://www�un�org/disabilities/countries� asp?navid=12&pid=166#t (last visited 12 nov� 2011)� see also, united nations office on drugs and crime, http://www�unodc�org/unodc/en/justice-and-prison-reform/index�html?ref=menuside (last visited 16 july 2010) 155 u�s� dep’t of state, country reports on human rights practices, supra note 8� “there was no overt state discrimination against persons with disabilities, and some held government positions, but societal discrimination against persons with disabilities was a problem����although the law nominally obliged the government to aid persons with disabilities and shelter them from social injustice, the government provided only limited assistance�” id� 156 the english does not quite capture the meaning: what is it all about? what is the point in all this? 90 international journal of clinical legal education issue 17 in the absence of an outside visitor�157 it goes without saying that short-term visits and short-term foreign visitors have their limitations�158 i knew before i left berkeley that i could not will the establishment of a law school clinic or a volunteer legal services programme in togo in one week� nor one semester� perhaps not even in one year� the logistical and cultural gaps are huge� the successful establishment of any new program or institution takes time and it takes others� there must be more face-to-face exchanges and of longer duration� there must be a greater interchange between togolese who study, observe, teach or consult abroad – in africa, europe or the united states – in law school, law practice or ngo settings, and foreigners who come to togo to do the same� any attempt at establishing a clinical system will also require public and private funds, administrative and technical feasibility, and political will� the key for the consultant is to encourage trends or the creation of a new legal or socio-political culture in a way that does not trigger a divisive response� the question from our host country partners should not be: “how can a pays en voie de developpement – or, the global south – be expected to adopt the measures and practices that are available to a pays developpé?” this question misses the mark, because the efforts at issue are not a prescription for establishing relativist standards, but a recognition that a country with fewer resources will have to husband those resources for higher priorities� in the same vein, one must strive to impart information and exchange ideas in a spirit of mutual respect, and not by way of the sermon or financial carrot-and-stick� would-be clinical instructors and bar association activists in togo, or elsewhere, must not feel overwhelmed or demoralized by the knowledge that arguably “better” policies or customs are in place in the united states in the establishment of law school clinics and pro bono programmes� instead, the process of creating a clinical programme and pro bono system is all about the encouragement of what is possible within the existing legal, political, socio-cultural and economic frameworks� the visitor then leaves behind a little reflection and self-criticism, a little passion, some commitment, a lot of goodwill and solidarity – and asks for the same in return� je vous remercie de votre attention. 157 after working in a rule of law partnership with a haitian law school for over a decade, utilising what he terms a “slow law” approach (akin to the “slow food” movement), professor richard boswell cautions against setting a certain set of outcomes or deliverables� have “no expectations” about results, he told an audience recently at the university of california, berkeley school of law� (annual stefan a� reisenfeld symposium: “justice under construction,” 31 mar� 2011)� 158 professor wortham’s criticism of the “drop in” foreign expert lecture approach to effecting change is well-taken� wortham, supra note 6 at 677� the efforts simply cannot begin and end there� clinique togo 91 appendix i seven159 tips for the short-term consultant 1� do not expect the embassy to lay out a clear agenda – beyond an itinerary of activities – or to have answers to all your questions before you arrive� be flexible� 2� do not be afraid to set your own objectives for the visit and its aftermath� be flexible� 3� dispense some theoretical knowledge about american law and practices to the extent it meets your hosts needs and do some homework on your own before you embark or while on your visit� 4� “whet the appetite” of your audience� be charming and gracious� 5� make the most of the intellectual and cultural exchange� be humble enough to know that you too can learn much about your own country by working with another�160 6� as you meet with various players, gauge the local or national support for any idea or practice you propose�161 7� if your visit is to have any impact, follow-up is essential: a� if not asked outright, seek opportunities to advise the relevant embassy staff on where to allocate u�s� funds or other resources�162 b� keep non-u�s� public funding and other resourcing needs in mind with any particular proposal, i�e�, ngos and foundations, united nations, european union and individual european governments163 – and do not discount what the host country must allocate at a 159 there is nothing talismanic – or even kabbalistic – about the number seven� i offer apologies to thomas carothers for advice based heavily on personal experience, although dispensed through the lens of a practitioner “engaged in democracy aid” and not an academic “engaged in democracy theory�” thomas carothers, supra note 14 at 93-94 (decrying reliance of earlier rol and ldm “foot soldiers” on personal experience rather than on research)� 160 wortham, supra note 6 at 675� 161 one of the cultural challenges encountered in one-on-one conversations, particularly with key government officials, bar leaders and faculty members, is determining the degree of directness that is appropriate� given the short time one has with interlocutors, it is tempting to make the most of it – even if not seeking an explicit commitment of time or resources, but perhaps a willingness to “move forward�” directness can be perceived by the host as brusque or impolite� the host may also have his own agenda or may not be in a position of authority to make any kind of commitment� what is a mere courtesy call and what is a working meeting? how senior is that lawyer or professor who seems to express genuine interest? these are the questions you will need to answer as you go, relying on embassy staff to the extent possible� 162 this does not mean u�s� financial assistance should be overlooked� see, e.g�, state department request for proposals: “democracy, human rights and rule of law” to “build the capacity of the judicial sector to strengthen cognizance of and respect for the legal rights of individuals, especially detainees and those accused of crimes, with a special focus on increasing the use of bail (liberté provisoire)�” http://www�state�gov/g/drl/p/130297� htm (last visited 13 nov� 2009)� the application process for this $500,000 grant is full of possibilities and hurdles� 163 for example, togo can count germany as a reliable donor nation, due to its brief tenure as a colonial power before ceding the territory to france and britain� during my visit, its embassy gave a large garden party, to commemorate the unification of west and east germany, where its still popular togolese-bottled lager beer was in plentiful supply� 92 international journal of clinical legal education issue 17 national, agency or institutional level�164 c� try to ensure future “working” exchanges of longer duration (3 to 6 months) by key actors: i� u �s� teachers, lawyers, students and other consultants going to africa; and ii� mid-level elites and junior associate african lawyers, (paraprofessionals), academics, and students coming to the united states: to teach, to advocate, to observe, to critique�165 d� promote local and regional contacts and networks within africa� e� promote long-term personal relationships�166 164 professors geraghty and quensah passionately advocate for an immediate and intensive investment of money and resources in african legal educational institutions� they call upon american academics and lawyers to aid their african peers in seeking funds and collaborating – with africans in the lead – in the assessment and planning process� geraghty & quensah, supra note 14 at 104-05� there are already some established sister school relationships between american schools and those in east and southern africa� dauphinais, supra note 10 at 84, n� 183� 165 one informed commentator argues that (at least for launching a clinical educational programme) inviting wouldbe clinicians to the united states, to observe on-site for a period of time, is a far more useful expenditure of funds than sending a speaker abroad� wortham, supra note 6 at 677� others have stressed the importance of collaborative and genuinely deferential relationships in establishing or improving local institutions� see, e.g. dauphinais, supra note 10 at 105-06 (advocating co-authorship of curriculum materials and collaboration in teaching between african and american legal educators) and maisel, supra note 16 at 489-90 (advising guest educator to come with lack of hubris, open agenda and ask how she can assist hosting colleague in transnational collaboration)� 166 the importance of personal, ongoing relationships cannot be overstated� wortham, supra note 6 at 676-77� thomas carothers’ research reveals the overlooked psychological, moral and emotional support that a foreigner may bring, by showing interest in another country’s problems and by returning and working with colleagues across borders� thomas carothers, assessing democratic assistance: the case of romania (1996) 95-97 (cited in wortham, supra note 6 at 678)� leah wortham also recalls carothers’ comment that one should not assume valuable “psychological, attitudinal and educational” change occurs in every rol or law and development project� id� at 678, n� 279 (quoting thomas carothers, aiding democracy abroad, 312-313 (1999))� clinique togo 93 appendix ii bleuprint for a francophone african law school clinic167 1. synopsis: the goal of the francophone africa law project (falp) is to establish a university-based legal aid clinic in francophone african countries that have adequate infrastructure, support and credibility�  while such clinics currently exist in an increasing number of anglophone, common law african nations – usually where u�s� clinical law professors or nongovernmental organizations have taken the lead in providing technical assistance and funding – french-speaking africa has been largely neglected� 2. introduction: a� u�s� law schools (with or without ngo support) are uniquely positioned to promote and nurture a clinique juridique� a by-product of this effort is a law student exchange programme� b� a necessary component of the clinique juridique should include formalized bar associationlaw faculty collaboration in the designated country to develop a private bar pro bono culture and more integration of practitioners in local law faculties� partnerships or other formalized relationships could be formed with local ngos and/or customary law practitioners and decision-makers� 2. objectives: the first phase consists of a short-term field placement in which a limited number of u�s� students: a� enrol in classes in an african law faculty for one quarter or semester; b� observe trial and/or appellate court proceedings and customary or other informal dispute resolution practices on a regular basis; c� meet once or twice per week with lawyers, judges, court officers, government officials, law enforcement officers, elders or traditional leaders, students in law or magistrature, journalists and/or ngo activists; d� engage in limited, supervised, legal work (where possible); e� conduct an assessment of the potential for a clinique juridique, under the supervision of a u�s�-based clinician and practitioner and local ngos� 167 in addition to milliette marcos, i thank yvonne troya and charlotte martinez for their contributions to this blueprint template for a clinique juridique typique, i.e.,a conventional law school (in-house) clinic� assumptions about staffing and non-personnel expenses will obviously vary� see also, wilson, supra note 85� this should not necessarily be favoured over other approaches to fostering experiential or practice-orientated legal education� adaptability and deference to local preference are essential� 94 international journal of clinical legal education issue 17 future students would continue to build on the “needs assessment,” with the eventual goal of setting up a fully functional clinic: a� funds permitting, united states practitioners and academics would also conduct periodic workshops or training modules on site, with assistance from their african counterparts (including jurists who return to their home country after obtaining an llm); b� american students would help to establish a long-term clinic and pro bono culture, and at the same time, benefit from an educational and multicultural experience, and forge future relationships with their african peers; c� ongoing participation by clinicians and practitioners would be dependent on funding; d� participating students must be fairly proficient in french and will need to secure their own funding for travel, accommodations and food; e� the project would assist in enrolment, on-site contacts, locating lodging and procuring visas� 4. selecting a university pilot project: university in chosen francophone country where the administrative, resource and legal commitments have been established and memorialized� 5. prospective partners (for funding, board of directors, advisory council, service delivery, etc.): a� u�s� law school sponsor(s)� b� open society justice initiative�168 c� american bar association rule of african initiative / africa division�169 d� u�s� department of state� e� global alliance for justice education�170 f� ahead (african higher education activities in development)� g� african national and local bar associations� h� universities in other francophone countries in europe and africa� i� local chefs du village, chefs du quartier, sultans or other facilitators/adjudicators in traditional dispute resolution� j� other partners identified through a needs assessment (see below)� 168 for details on this soros foundation initiative, visit http://www�soros�org/initiatives/justice� 169 for details on programmes and opportunities, visit http://apps�americanbar�org/rol/africa 170 see supra note 31� clinique togo 95 6. structure: space: the university law faculty will house the administrative office of the law clinic� most substantive and skills training will take place in classrooms at the university as well as community venues� staffing: a� one full-time attorney coordinator to act as operations manager� this coordinator, in collaboration with african-based partners, will assist students in conducting a needs assessment, develop a training curriculum and establish effective delivery models� b� one part-time african university professor to supervise the law school clinic students on-site and provide training for the clinic participants� c� one part-time african staff attorney to collaborate with the university supervisor and the coordinator� d� one part-time clinic administrator for clerical, technical and logistical support� 7. time-line: year “1” a. 0-3 months: selection and hiring of clinic staff� solicit applications from u�s� law exchange students� law students begin orientation� initiate needs assessment by surveying law school faculty  and students, local bar association members, ngos and other stakeholders�  by coordinating with other local legal service providers, this needs assessment will ensure that legal services are not being duplicated�  set up administrative offices at the university� engage in collaborative meetings with local bar association, judiciary, and government officials� create an advisory board of african and international members�   b. 3-6 months: complete needs assessment� develop training curriculum� university law students submit applications to participate in the clinic� participating students chosen based on interest and experience� invite african and international practitioners and clinicians for short-term training and exchanges on-site and abroad� 96 international journal of clinical legal education issue 17 clarify role of local bar association members and recruit members and judges to mentor law students� c. 6-9 months: law students begin clinical classroom component with emphasis on sensitisation, ethical training, skills-building and reflective lawyering� law students participate in substantive law training and mentorship� law students begin clinic work and begin preparing community education curriculum for both community members and medical providers� law students will engage in other activities, including opening client cases, researching legal issues, meeting with their supervising attorneys� african and international practitioners and clinicians participate on-site in short-term training and exchanges in classroom and clinical settings� d. 10-12 months: conduct summary review of legal clinic progress to date, modify as necessary, and submit reports to funders� years “2” & “3” continue development of classroom and training curriculum as needed� continue african and international practitioner and clinician short-term training and exchanges on-site and abroad� law students continue clinical classroom component, substantive law training and mentorship�  law students continue working at clinics and conducting community education curriculum for community members� continue collaboration with local bar association, judiciary, and government officials� assess supervisory component and adjust as necessary� develop community education outreach materials for written or broadcast distribution� accept new and continuing law student applicants� incorporate u�s� law exchange student(s)� collaborate with african and international practitioners and clinicians� develop lay advocacy component� conduct summary review of legal clinic progress to date, modify as necessary, and submit reports to funders� 8. costs: salary of coordinator, for years 1-2: $/¤__ salary of university half-time administrator: $/¤__ salary of university full-time supervisor: $/¤__ clinique togo 97 salary of african half-time supervisor: $/¤__ transportation, lodging and meal costs for student participants and presenters: $/¤__ administrative costs (copying curriculum and community legal education materials): $/¤__ translation/interpretation fees: $/¤__ 9. proposed project term and funding: three years; $/¤__ 10. potential concerns: a� will u�s� students enroll in african university as “exchange students” or will they participate for externship credit? b� who will provide the clinical classroom training? c� how long will students from u�s� law schools spend in africa? is there a minimum requirement? d� will students have to be proficient in french? reviewed article 34 the law tech clinic: leading the way in entrepreneurial law clinics jacqueline weinberg and ross hyams, monash university, australia* abstract globalisation, economic forces and technological advancements are changing the way law is practised. clients are seeking innovative solutions to an increasingly broad range of legal challenges. they want greater connectivity and streamlined delivery of legal services. the rate of change has accelerated in response to remote working, with the digital maturity of legal firms advancing more rapidly than ever before, utilising technology such as electronic billing practices, digital mailrooms, e discovery, digital document signing and workflow automation. newly developed and deployed legal technology within the sector has increased demand for lawyers with the skills to adapt and thrive in a technological environment. law firms favour graduates with a ‘technology mindset’ and aptitude to think beyond the traditional professional services model. the monash university * the authors would like to thank christine zhong and khoi cao for their research assistance. international journal of clinical legal education the law tech clinic 35 faculty of law, one of the leading law schools in australia with a pioneering clinical program, has established a law tech clinic (ltc). the ltc provides a unique opportunity for students to work on real client matters and receive end-to-end industry input to develop client-ready applications.1 this paper describes the ltc’s structure and how the clinic is designed to educate students on the changing demands of the legal industry, providing practical knowledge on legal technology usage to advance legal services. this paper outlines how the ltc enables students to develop professional and practical legal skills that will help them become successful entrepreneurial lawyers, adept at integrating technology with innovative legal services. further, this paper demonstrates how the monash clinical program, with a strong focus on best practice in clinical legal education, provides a perfect forum to run such a clinic. we demonstrate how students work with technological systems to assist industry partners, law firms and other organisations and provide accessible legal services to their clients.2 finally, this paper highlights how the ltc educates students on technological advances in legal practice, equipping them with frameworks for the knowledge, skills and attributes to be technologically proficient future legal practitioners. although this discussion is in 1 as will be described later in this paper, the law tech clinic was developed as a collaboration between the monash clinical program, industry partners and current law students from botl,a student-led start-up (https://www.botltech.com.au/) 2 to date monash clinical program has run the law tech clinic in collaboration with lander and rogers (<https://www.landers.com.au/>) and see (<https://www.youtube.com/watch?v=gzm gkn7g3a>), maddocks (<https://www.maddocks.com.au/>) and kpmg (<https://home.kpmg/au/en/home/services/tax/legal-services.html>) http://www.botltech.com.au/) http://www.landers.com.au/ http://www.youtube.com/watch?v=gzmhttp://www.maddocks.com.au/ reviewed article 36 the australian context, it can also apply to other jurisdictions as the associated issues with legal technology and its effects on legal practice are occurring globally. 1. legal technology and legal practice to optimise client service, the legal profession has realised the need to engage in technology.3 many legal service providers in the private and community sectors utilise remote computing access, law practice management systems, document storage and collaboration tools, email, messaging apps and videoconferencing.4 additionally, document automation converts template documents such as leases, trusts, wills and business contracts into personalised legal instruments at a low cost.5 in the end of lawyers? rethinking the nature of legal services, richard susskind posited that technology enhancements leading to improved, sustained and advanced methods of legal services delivery are inevitable and that lawyers must change how they operate.6 3 sarah r. boonin and luz e. herrera, ‘from pandemic to pedagogy: teaching the technology of lawyering in law clinics’ 2022 (1) 68, washington university journal of law and policy 109 at 2. 4 ibid. see also jacqueline weinberg and jeffrey giddings, ‘innovative opportunities in technology and the law: the virtual legal clinic’ in ann thanaraj and kris gledhill (eds), teaching legal education in the digital age. (routledge 2022), richard susskind, online courts and the future of justice (oxford university press, 2019) 186, sam stebin and ashley pearson, ‘community legal centres in the digital era: the use of digital technologies in queensland community legal centres’ (2019) (1) 1 law, technology and humans 64. 5 ibid. see also lisa toohey et al, ‘meeting the access to civil justice challenge: digital inclusion, algorithmic justice, and human-centred design’ (2019) 19 macquarie law journal 133. 6 richard susskind, the end of lawyers? rethinking the nature of legal services (oxford, oxford university press, 2010). see also richard susskind and david susskind, the future of the professions: how technology will transform the work of human experts (oxford university press 2015), richard susskind, tomorrow’s lawyers (oxford university press, 2nd ed, 2015). international journal of clinical legal education the law tech clinic 37 susskind further argued that the focus of preparing for a career in law or for using a law degree for a variety of careers does not only lie in legal competencies. it also lies in upskilling and becoming able to learn entirely new skills and competencies that reflect the new reality of how law is used in the legal profession and more broadly in a multidisciplinary setting.7 at the time of his writing (2010), susskind’s prophecy was slowly coming to fruition, with lawyering technology steadily gaining prominence among a segment of lawyers.8 covid-19 substantially pushed this reality along, with technology being used in every facet of the legal profession.9 lawyers who never considered themselves technologically savvy were forced to rely on a broad range of technologies to maintain operations.10 covid-19 forced lawyers, judges and other legal service providers to become proficient in technology in order to more efficiently serve clients and to improve law practice management and accessibility of legal services.11 law firms, courts, 7 richard susskind, the end of lawyers? rethinking the nature of legal services (oxford university press, 2010). 8 karolina mania, ‘legal technology: assessment of the legal industry’s potential’ (2022) journal of knowledge, john zeleznikow, ‘can artificial intelligence and online dispute resolution enhance efficiency and effectiveness in courts’ (2017) (2) 8 international journal for court administration 30– 45. 9 emma jones, francine ryan, ann thanaraj and terry wong, ‘defining digital lawyering’ in digital lawyering technology and legal practice in the 21st century (2021). 10 sarah r. boonin and luz e. herrera (n 3). 11 ibid. reviewed article 38 administrative agencies and other adjudication sites were required to maintain aspects of remote operations and services through technology platforms, including artificial intelligence (ai) bots, zoom and ms teams.12 technology is impacting practice more than ever by incorporating ai technology to conduct document reviews, analyse contracts, conduct legal research and undertake other tasks.13 legal services also use chatbots and guided interviews to assist self represented litigants in finding resources.14 litigators employ several tools in pre litigation, such as e-discovery, and rely on complex visual and audio technologies in litigation to present evidence in an interactive format.15 the continuing development of virtual delivery of legal services requires practitioners to become adept with a variety of new skills and competencies. in particular, lawyers need to learn to communicate differently, gain mastery of the data in their disciplines, establish new working relationships with technology, and to diversify the services they offer.16 as boonin et al posit, ‘now as the world haltingly returns to face-to-face interactions, the legal profession is unlikely to completely walk away from these adaptations. the 12 sarah r. boonin and luz e. herrera (n 3). see also tania sourdin and john zeleznikow, ‘courts, mediation and covid-19’ (2020) (2) 48 australian business law review 138–158, tania sourdin, ‘justice and technological innovation’ (2015) (2) 25, journal of judicial administration, 96–105. 13 see friedman and guy, ‘litigation post-pandemic: the view from corporate legal departments, (2021) 94, the advocate 17. 14 ibid. 15 ibid. 16 richard susskind and daniel susskind, the future of the professions: how technology will transform the work of human experts (oxford university press, 2015) 114. international journal of clinical legal education the law tech clinic 39 technology of lawyering has gained a larger, permanent foothold in a far broader range of legal settings.’17 smith and spencer take this further, suggesting that the lawyer of the future ‘will exist as a “polytechnic” or “many-skilled” professional, applying their legal expertise to a client’s changing world in an increasingly agile way and within a range of organisational settings’.18 the legal profession is undergoing a technological transformation that is reshaping how lawyers practise and how the nature of legal services is delivered.19 consequently, it is becoming essential for lawyers to develop a necessary understanding of core technologies, their features and functionalities, how they are being utilised and the impact of these technologies on the role of legal professionals.20 2. legal technology and legal education as lawyering roles change and new technologies emerge, law firms are challenged to rethink how legal services are delivered.21 jones et al refer to the ‘digital 17 sarah boonin and luz herrera (above 3). see also lyle moran, ‘legal tech ceos urge lawyers to keep innovating beyond the covid-19 pandemic’ (2021) aba journal <https://www.abajournal.com/news/article/legaltech-ceos-urge-lawyers-to-keep-innovating beyond-the-covid-19-pandemic> [<https://perma.cc/kn5mn9zz>], a johri, ‘engineering knowledge in the digital workplace: aligning materiality and sociality through action in t. fenwick and m. nerland (eds.), reconceptualising professional learning: sociomaterial knowledge, practices and responsibilities (routledge 2014). 18 alexander smith and nigel spencer, ‘do lawyers need to code? a practitioner perspective on the ‘polytechnic’ future of legal education’ in modernising legal education (2020) 18-37. 19 see richard susskind and david susskind. the future of the professions: how technology will transform the work of human experts (oxford university press, 2015). 20 e. jones, et al (n 9). 21 ibid. http://www.abajournal.com/news/article/legalreviewed article 40 transformation’ of the legal profession and the delivery of legal services, and how it is creating innovative opportunities for lawyers and law students to explore new areas of practice.22 as jones et al state, ‘lawyers not only need to be aware of emerging technologies but also have an understanding of how technology works to appreciate the impact that technology has on the practice of law’.23 lawyers must be knowledgeable in understanding where law and technology intersect, being aware of the implications of technology and becoming digitally literate to leverage the benefits of technology in legal work.24 in other words, the legal profession must be knowledgeable in how lawyers can appropriately, safely and effectively use online technological innovations and techniques within the delivery of legal services, often through secure and authentic online law platforms.25 law graduates need access to resources to fulfil this need, to think about the future of legal practice and how technology can be harnessed to support innovation.26 law students are entering legal practices where online communications, paperless offices, cloud services and technology serving to facilitate law practice are all integral 22 ibid 8. 23 ibid 8. see also susskind, richard and daniel susskind, the future of the professions: how technology will transform the work of human experts (oxford university press 2015). 24 ibid. 25 ibid. 26 ibid. see also thanaraj, ann, ‘the proficient lawyer: identifying students’ perspectives on learning gained from working in a virtual law clinic’ (2017) 14(3) us-china law review, 137–167. international journal of clinical legal education the law tech clinic 41 features of digital lawyering.27 the repercussions of the covid-19 pandemic will resonate in the legal profession for many years to come.28 technological advancements in legal practice challenge law schools and legal educators to educate students on adapting to change.29 law schools face increased pressure to prepare students for the realities of modern law practices and to equip students with the skills, knowledge and abilities necessary to meet demands of a global and digital workplace.30 the future marketplace will require lawyers who can translate between business, technology and the law.31 technological skill is becoming a seminal element of law student marketability and relevance.32 cantatore et al posit that the significant leap from ‘student’ to ‘early career lawyer’ or ‘graduate lawyer’ reflects a disconnect between the expectations of employers and graduate preparedness, requiring law schools to be more proactive in incorporating 27 ibid. see also sourdin, tania, ‘justice and technological innovation’ (2015) 25 (2), journal of judicial administration, 96–105. 28 see francina cantatore et al, ‘a comparative study into legal education and graduate employability skills in law students through pro bono law clinics’ (2021) 55 (3) law teacher 322. 29 ibid. 30 see s boonin and l herrera (n 3), ann thanraj, paul durston, and sam elkington, ‘a blueprint for designing creativity into learning design’ in ann thanaraj and kris gledhill (eds), teaching legal education in the digital age (routledge 2022), r.s granat and s.l kimbro, ‘the teaching of law practice management and technology in law schools: a new paradigm’ (2013) 88 (3), chicago-kent law review, 757, anthony volini, ‘a perspective on technology education for law students’, (2020) 36 (2) santa clara high technology law journal 165. 31 see michele pistone, ‘law schools and technology: where we are and where we are heading’, (2015) journal of legal education 586. 32 see simon canick, ‘infusing technology skills into the law school curriculum’, (2014) 42 (3) capital university law review 663. reviewed article 42 practice-based legal skills.33 whether the experience is gained through clinical education, external work placements or pro bono programs, practical work experience aims to increase students’ self-confidence, practice knowledge and employability.34 law students have an increased expectation of graduate employability skills, including information and communications technology skills, problem-solving skills and resilience.35 thus, there is a need for legal educators to consider how education can best prepare future lawyers for this reality and the educational inputs that will best support those forging their careers in the legal sector.36 according to smith and spencer, educators’ focus should be on ‘building students’ core skills in legal, design and logic principles rather than learning specific technologies that may be rapidly superseded’.37 still smith and spencer emphasise that with technology becoming a key enabler of greater service efficiency, students need more than ‘technology knowledge’.38 instead, students should be provided with ‘the skills and knowledge that professional practice will demand from lawyers within the next ten years; and the form of educational and professional experience that best facilitates the acquisition 33 francina cantatore et al, ‘a comparative study into legal education and graduate employability skills in law students through pro bono law clinics’ (2021) law teacher 55(3) 315. 34 ibid. 35 ibid. see also long, l.k. and p.a meglich, ‘preparing students to collaborate in the virtual work world (2013) 3(1), higher education, skills and work-based learning, 6–16. 36 see smith, alexander and nigel spencer, ‘do lawyers need to code? a practitioner perspective on the ‘polytechnic’ future of legal education’ in modernising legal education (2020) 18-37. 37 ibid 18. 38 ibid. international journal of clinical legal education the law tech clinic 43 of these skills and this knowledge’.39 accordingly, educators should focus more on enhancing the broader skill sets of students through experiential learning in client facing settings where students are exposed to a wide and diverse range of learning opportunities.40 murray et al take this further, emphasising the need for students to fully comprehend ‘why’ legal tech is being used in legal practice.41 they speculate that if students do not understand ‘why’, teaching and assessing digital skills ‘simply becomes one more hoop, through which a student must jump to gain their qualifications.’42 these authors call for legal educators to enable students to explore how the use of practical legal tech could be adopted to enhance not only the digital skills of students but at the same time enable them to develop an understanding as to ‘why’ legal tech is used by lawyers and, accordingly, what skills need to be developed.43 as murray et al state, ‘the aim must be for a student to understand the commercial realities of legal tech; a means of achieving efficiencies or compliance, solving legal problems, and of limiting the possibility of mistakes.’44 39 ibid 18. 40 ibid. 41 ryan murray and helen edwards, ‘legal tech and sustainability’ in ann thanaraj and kris gledhill (eds), teaching legal education in the digital age. (routledge 2022) 108. 42 ibid 108. 43 ibid. 44 ibid 108. reviewed article 44 generally, most law schools and universities are confident that their students can gain employment after graduation, so they will try to equip their students with skills they feel are necessary or desirable within the workplace.45 this has already led to an increased number of law schools offering modules, courses or programs focusing on digital lawyering.46 according to jones et al, ‘“digital lawyering” is multifaceted, encompassing knowledge, skills, attributes and professional rules into a mindset and professional way of being’.47 as such, it asks students to consider and develop their impressions on how they can contribute to the challenges of digital transformation of the workplace and the role law plays in innovations and in regulating the digital world.48 3. legal technology and clinical legal education the merger of education and practice at the heart of clinical legal education has sparked the development of a rich, varied and constantly evolving clinical pedagogy.49 an important strand in this movement links teaching technological competence and experiential education.50 within an experiential learning 45 see jones et al (n 9). see also cantacore, francina, ‘new frontiers in clinical legal education: harnessing technology to prepare students for practice and facilitate access to justice’ (2019) 5 (1) australian journal for clinical education 1. 46 jones et al (n 9). 47 ibid 10. 48 ibid. 49 see jeff giddings and jacqueline weinberg, ‘experiential legal education: stepping back to see the future’ in catrina denvir (ed), modernising legal education (cambridge university press, 2020) 38, adrian evans et al, australian clinical legal education: designing and operating a best practice clinical program in an australian law school (australian national university press, 2017). 50 see francina cantacore, ‘new frontiers in clinical legal education: harnessing technology to prepare students for practice and facilitate access to justice’ (2019) 5(1) australian journal for clinical international journal of clinical legal education the law tech clinic 45 environment, students can learn about law technology and utilise technology beneficial to law practice.51 the most effective way to teach the technology of law is to experience it firsthand.52 boonin et al add, ‘the very project of clinical education lends itself to the task of teaching technology’.53 clinical programs are premised on the notion that the professional development of lawyers is incomplete without the opportunity for law students to inhabit the lawyer’s role prior to graduation and legal practice.54 the experiential curriculum aims to expose students to the realities of law practice while teaching them to reflect on their work, their clients’ experience, the communities they serve and their roles in legal systems.55 by design, clinical pedagogy evolves in response to the changing needs of communities, clients and the legal profession.56 education 1, james e. cabral et al, ‘using technology to enhance access to justice’ (2012) (1) 26 harvard journal of law & technology 241–324. 51 see jacqueline weinberg and jeffrey giddings, ‘innovative opportunities in technology and the law: the virtual legal clinic’ in ann thanaraj and kris gledhill (eds), teaching legal education in the digital age. (routledge 2022), f ryan, ‘a virtual law clinic: a realist evaluation of what works for whom, why, how and in what circumstances? (2019) 54(2), the law teacher, 237–248, ann thanaraj, ‘the proficient lawyer: identifying students’ perspectives on learning gained from working in a virtual law clinic’ (2017) 14(3) us-china law review, 137–167. 52 s boonin and l herrera (n 3). 53 ibid 13. 54 see a stickley, providing a law degree for the ‘real world’: perspective of an australian law school’ (2011) 45(1) the law teacher, 63–86, ross hyams, ‘on teaching students to ‘act like a lawyer’: what sort of lawyer?’ (2008) 13 journal of clinical legal education, 21–32, ross hyams et al, practical legal skills (oxford university press 5th ed, 2022), steven wizner, ‘the law school clinic: legal education in the interests of justice’ (2002) 70(5), fordham law review, 1929–1937. 55 see frank s bloch, (ed.). the global clinical movement: educating lawyers for social justice. (oxford university press 2011), a. cody and b schatz, ‘community law clinics: teaching students, working with disadvantaged communities’ in f. s. bloch (ed.), the global clinical movement: educating lawyers for social justice (pp. 167–182) (oxford university press, 2011). 56 see w.m. sullivan et al, ‘educating lawyers: preparation for the profession of law. (jossey-bass 2007), richard susskind, tomorrow’s lawyers (oxford university press 2013). reviewed article 46 clinical legal education also provides opportunities for students to develop new modes of ‘thinking like a lawyer’.57 legal technology offers abundant opportunities for clinical students to engage in innovative and creative thinking, reflecting on technology’s impact on those processes.58 by encouraging students to assess and thoughtfully apply new law practice technologies critically, clinical programs enable students to develop a deeper insight into the benefits of learning in a professional setting.59 a primary goal of clinics is to help students integrate their personal and professional identities.60 thoughtful deployment of technology in clinical settings can spark boundary exploration of professional relationships, particularly the lawyer– client relationship, as mediated by technology.61 it is imperative that students master a range of new technologies and communications methods for the dynamics of modern professional life and legal 57 jeff giddings, ‘clinics and australian law schools approaching 2020’ in a. evans, a. cody, a. copeland, j. giddings, p. joy, m. a. noone & s. rice (eds.), australian clinical legal education: designing and operating a best practice clinical program in an australian law school (pp. 11–39) (anu press 2017), marson, j., wilson, a. & van hoorebeek, m. ‘the necessity of clinical legal education in university law schools: a uk perspective’(2005) 7 journal of legal education, 29–43, ross hyams, ‘the teaching of skills: rebuilding, not just tinkering around the edges’ (1995) 13(1) journal of professional legal education, 63–80 58 s boonin and l herrera (n 3) 28. 59 ibid. 60 see jeff giddings and jacqueline weinberg ‘experiential legal education: stepping back to see the future’ in c. denvir (ed.), modernising legal education (pp. 38–56) (cambridge university press 2020), neil gold, ‘clinic is the basis for a complete legal education: quality assurance, learning outcomes and the clinical method’(2015) 22(1), international journal of clinical legal education, 84–141, margaret barry, ‘clinical legal education in the law university: goals and challenges’ (2007) journal of clinical legal education, 27–50. 61 see c goodman, ‘impacts of artificial intelligence in lawyer-client relationships’ (2019) 72(1) oklahoma law review, 149–184. international journal of clinical legal education the law tech clinic 47 practice.62 clients wish to be more involved in the legal provision process, which necessitates changes in the lawyers’ approaches and attitudes towards their clients, their management of client matters and their relationships with courts and other professionals.63 lawyers need to take a client-focused approach to communication and relationship-building to develop and convey the best possible options to clients. the idea behind this is to offer effective legal services in new, less costly and more client-friendly ways. this may involve using virtually delivered legal services better suited to the client’s needs.64 4. the law tech clinic within the monash clinical program a major review of higher education in 2008 in australia, along with the government’s response to this review, acknowledged the need for universities to prepare graduates for the world of work.65 while experiential education in australia has traditionally involved students engaging in live-client clinics maintaining a poverty law focus, more recently, there has been a growth in offerings such as externship clinical 62 jacqueline weinberg and jeff giddings ‘innovative opportunities in technology and the law: the virtual legal clinic’ in a. thanaraj & k. gledhill (eds), teaching legal education in the digital age (routledge 2022) 63 jeff giddings and jacqueline weinberg ‘experiential legal education: stepping back to see the future. in c. denvir (ed.), modernising legal education (pp. 38–56) (cambridge university press 2020). 64 weinberg and giddings (n 62). 65 see denise bradley et al, review of australian higher education: final report (canberra, 2008). reviewed article 48 placement programs,66 work-integrated learning (wil)67 and industry-based experiences, mostly in the private sector. in externship placements and wil, students work in host organisations to gain knowledge, understanding and skills essential to workplace practices.68 this includes providing opportunities for building skills that law students need to prepare them to be competent lawyers in a technology-led environment. within the monash clinical program, the ltc was established to provide a unique opportunity for students to develop a technology mindset and aptitude to think beyond the traditional professional services model and receive end-to-end industry input to develop client-ready applications. the ltc adheres to the educational aims of continuing legal education (cle): providing students with legal education that enhances 21st-century legal practice and assists the broader community by utilising technology to extend legal services delivery to people whose needs would not otherwise be met. 66 see evans et al, australian clinical legal education: designing and operating a best practice clinical program in an australian law school (australian national university press, 2017) evans et al refer to the term ‘externships’ to describe ‘the form of clinical legal education where individual students are placed in an independent legal practice, community legal centre, government agency or not-for-profit organisation’ at 56, adrian evans and ross hyams, ‘specialist legal clinics: their pedagogy, risks and payoffs as externships’ (2015) 22(2), international journal of clinical legal education, 147–180. 67 evans et al (n 66) refer to ‘work-integrated learning’ as ‘a curriculum design, which combines formal learning with student exposure to real professional, work or other practice settings’: at 43. for a broader discussion on the program risks of wil, refer to craig cameron et al, ‘the program risks of work-integrated learning: a study of australian university lawyers’ (2018) 40(1) journal of higher education policy and management 67. see also janice orrell, good practice report: work-integrated learning (australian learning and teaching council, 2011); stephen billett, integrating practice-based experiences into higher education (springer, 2015). 68 refer to evans et al (n 66). international journal of clinical legal education the law tech clinic 49 5. structure of the law tech clinic the ltc was developed as a collaboration between the monash clinical program, industry partners and current law students from botl,69 a student-led start-up. as digital natives and current law students, botl approached the monash clinical program to collaborate on establishing an ltc. botl aims to alter how australian law schools prepare students for practice.70 it realises that technology is integral to their professional and academic careers. as newly graduated law students who are viewed as the ‘new lawyers’ or ‘21st-century lawyers’, they will be required to forge a pathway enabling this change and implementing innovative technological solutions at firms. graduate law students require opportunities to upskill themselves to become changemakers in the industry and meet the digital disruption in markets, the public sector and society.71 to achieve this, the ltc focuses on educating law students on the intersectionality of technology and legal services. the students work within the clinic’s legal tech framework to design and build transformative legal technology which will enhance 69 botl co-founder: andrea ko, co-founder: henry wu, co-founder: sam chen, co-founder and director: christine zhong, co-founder and director: khoi cao, legal experience designer: carl azar, operations manager: jade smith (<https://www.botltech.com.au/ 70 https://www.botltech.com.au/>) 71 margaret hagan, law by design (web page) <https://lawbydesign.co/>. see also interaction design foundation, ‘what is design thinking’ (web page) <https://www.interaction design.org/literature/topics/design-thinking> margaret hagan, ‘design comes to the law school’ in catrina denvir (ed), modernising legal education (cambridge university press, 2020) 109. http://www.botltech.com.au/ http://www.botltech.com.au/ reviewed article 50 legal services. the ltc equips law students with the skills to facilitate and participate in technological disruption in the legal industry as a result. it is designed to provide students with an understanding of the technologies available to legal practitioners and to educate students with practical design thinking and no-code app-building skills. the ltc ensures that students have practical tools to assist them throughout their careers. to achieve this objective, the ltc is structured over two phases: phase one, where students are taught theory about the intersection of technology and the law; and phase two, where students build their legal technology solutions to address real legal problems. students collaborate with their peers to ideate and design a client facing legal app. students use a no-code app-building platform to build and refine their solution. they then present the deliverable to the industry partner in the final week of the unit. by participating in this clinic, students not only develop the confidence to use legal technology to create innovative solutions but also an ability to adapt to the changing demands of legal practice and an appreciation of the diverse careers available in law. the ltc provides an opportunity for students, as ‘future lawyers’, to enter legal practice and use unfamiliar technological applications to ensure they develop skills and gain confidence in their use. international journal of clinical legal education the law tech clinic 51 6. design thinking the clinic’s structure is consistent with margaret hagan’s legal design process.72 according to hagan, legal design thinking refers to the ‘application of human centred design to law’.73 its fundamental objective is to create legal systems that are ‘human-centred, usable and satisfying’.74 consideration of the target users’ compelling needs is the crucial starting point when developing technological solutions.75 in the legal context, the target users are generally lawyers, clients and other business professionals.76 once the developer comprehensively understands the users’ circumstances, feelings, motivations and concerns, the developer creates legal tech solutions that aim to improve the user’s experiences.77 72 ibid. see also eva köppen and chirstoph meisel, ‘empathy via design thinking: creation of sense and knowledge’ in hasso plattner, christoph meisel and larry leifer (eds), design thinking research: building innovators (springer, 2015) 15, andrea alessandro gasparini, ‘perspective and use of empathy in design thinking’ (conference paper, international conference on advances in computer human interactions, 22–7 february 2015) 50. 73 ibid. see also carina campese et al, ‘benefits of the empathy map method and the satisfaction of a company with its application in the development of concepts for a white glue tube’ (2018) 16(2) product: development and management 104, natasha hampshire, glaudia califano and david spinks, mastering collaboration in a product team: 70 techniques to help teams build better products (apress, 2022) 37. 74 see astrid kohlmeier and meera klemola, the legal design book: doing law in the 21st century (ground m, 2021) 20; natasha iskander, ‘design thinking is fundamentally conservative and preserves the status quo’ (5 september 2018) harvard business review <https://hbr.org/2018/09/design thinking-is-fundamentally-conservative-and-preserves-the-status-quo>. 75 ibid. see also patrick cairns et al, ‘empathy maps in communication skills training’ (2021) 18(2) clinical teacher 142, rachel hews et al, ‘law and design thinking: preparing graduates for the future of legal work’ (2022) 47(2) alternative law journal 118. 76 ibid. see also margaret hagan, ‘legal design as a thing: a theory of change and a set of methods to craft a human-centered legal system’ (2020) 36(3) design issues 3. 77 ibid. see also connie chang, ‘improving access to free online legal information through universal design: user personas, user journeys, a proposal, and a prototype’ (2021) 40(4) legal reference services quarterly 199, lene nielsen, personas: user focused design (springer, 2nd ed, 2019) 4. reviewed article 52 hagan’s steps to effective legal design are designing, synthesising, building, testing and evolving (see figure 1).78 following this structure, the ltc separates the app building process into the discovery process (with user interviews being a primary mode of research), design process, build process and test process so that the students can learn the different nuances between the stages. figure 1 hagan’s design thinking process for lawyers79 6.1 phase one phase one of the ltc is run over four weeks. during this phase, there is a focus on theoretical teaching about the legal technology landscape. the knowledge acquired during this period provides students with the foundations of how to approach and 78 ibid. 79 margaret hagan, law by design (web page) <https://lawbydesign.co/>. eduard albay and delia eisma, ‘performance task assessment supported by the design thinking process: results from a true experimental research’ (2021) 3(1) social sciences and humanities open 1, rikke dam and teo yu siang, ‘stage 2 in the design thinking process: define the problem and interpret the results’, interaction design (web page, 2020) <https://www.interaction-design.org/literature/article/stage-2 in-the-design-thinking-process-define-the-problem-and-interpret-the-results>. http://www.interaction-design.org/literature/article/stage-2international journal of clinical legal education the law tech clinic 53 design a solution to the legal problem. both the botl team and the monash clinical supervisor actively engage with clinical students throughout phase one. students attend interactive workshops delivered by distinguished industry professionals, including technology and cybersecurity lawyers, legal application designers and developers, legal technology consultants and start-up founders. these workshops introduce students to various aspects of the legal technology industry and encourage them to think broadly about alternative career pathways. additionally, the workshops provide students with a foundational understanding of legal technology solutions to assist them with the app building in phase two. the weekly workshops centre around various topics relevant to understanding the legal, technological and client-centred aspects of legal technology. these topics include: • an introduction to legal technology—to develop an understanding of technology and legal practice’s interrelationship.80 • lawyers’ digital tools—focusing on transforming how legal processes and services are delivered by leveraging the power of no-code automation and developing digital solutions to solve business problems. • legal design thinking—to understand design thinking principles and learn to ideate, prototype and execute legal apps. 80 see l.k. long and p.a meglich, ‘preparing students to collaborate in the virtual work world. (2013) 3(1), higher education, skills and work-based learning, 6–16. reviewed article 54 • setting up a legal technology start-up and other legal service companies— strategies to offer tailored solutions to law firms and organisations. • ethics and legal tech—focuses students on ethical issues they may encounter when implementing legal tech.81 • legal research seminar—focusing on techniques for effective legal research. • the intersection of artificial intelligence and public law—focusing on automated legislative decision-making and the impact of technology on the rule of law. • each week, students are expected to complete the relevant reading materials accompanying the workshops. after each workshop, the botl team and monash clinical supervisor arrange group reflections to encourage students to think more deeply about the workshop activities and what they learnt from the guest speakers. 6.2 phase two over eight weeks, with the support of botl team and the monash clinical supervisor, students engage in practical app building by applying the theoretical knowledge 81 see mary-anne noone and judith dickson, ‘teaching towards a new professionalism: challenging law students to become ethical lawyers’ (2004) 4(2), legal ethics, 127–145, liz curran, judith dickson and mary-anne noone, ‘pushing the boundaries or preserving the status quo? designing clinical programs to teach law students a deep understanding of ethical practice’ (2005) 8 international journal of clinical legal education 104, kevin kerrigan, ‘how do you feel about this client?’ a commentary on the clinical model as a vehicle for teaching ethics to law students’ (2007) international journal of clinical legal education 37, anna cody, ‘what does legal ethics teaching gain, if anything, from including a clinical component?’ (2015) 22(1) international journal of clinical legal education 1. international journal of clinical legal education the law tech clinic 55 they acquired in the first phase. this involves designing, building and refining the legal application. the industry partner provides a project brief for students, typically outlining a particular issue or ‘pain point’ that a practice group is experiencing. throughout the eight weeks of phase two, students work in teams to develop a legal tool addressing the project brief. to assist with this, students are allocated an industry partner supervising lawyer, who meets with them weekly to provide legal expertise and feedback on the build. the allocated lawyer also acts as a legal project manager who ensures that the end product meets client specifications. the student–lawyer mentorship is an important aspect of the clinic, as students learn to collaborate with industry professionals to develop a legal tool. during phase two, in line with design thinking principles, students conduct user interviews with lawyers and firm clients to better understand existing processes, pain points and paths to improvement. students research the relevant areas of law and design a framework of their tool on a mind map platform such as lucidspark82 or miro.83 this process involves continuous feedback and iteration, with students sharing their progress with supervising lawyers, the botl team and the monash 82 see <https://lucidspark.com/>. 83 see <https://miro.com/weblinks>. reviewed article 56 clinical supervisor. the students build the tools on an app-building platform such as josef84 or checkbox.85 since the legal industry is undergoing significant disruption, firms are increasingly searching for graduate lawyers who are forward-thinking, collaborative and have the practical skills to develop legal tech solutions. the ltc enables students to develop skills and practical experiences that are in high demand, including using technological solutions for efficiency in delivery and helping students to experience digital learning to prepare them for the tech-focused world of work.86 thanraj et al advocate for learning and teaching practices to cultivate creativity and encourage students to engage with ‘digital fluency’ developing their professional skills through the use of various tools.87 according to these authors, creativity is the foundation for future-ready, digitally-empowered law students.88 it affords opportunities for students ‘to think differently, and innovate, drawing on the experiences of technology and classroom-based practices.’89 84 see <https://joseflegal.com/>. 85 see <https://www.checkbox.ai/>. 86 thomson reuters’ tech & the law 2022 report (<https://www.thomsonreuters.com.au/content/dam/ewp-m/documents/australia/en/pdf/other/tech and-the-law-2022-report.pdf>). the thomson reuters’ tech & the law 2022 report covers the attitudes, perceptions and priorities that legal professionals have towards legal technologies. 87 ann thanraj, paul durston, and sam elkington, ‘a blueprint for designing creativity into learning design’ in ann thanaraj and kris gledhill (eds), teaching legal education in the digital age (routledge 2022). 88 ibid. 89 ibid. http://www.checkbox.ai/ http://www.thomsonreuters.com.au/content/dam/ewp-m/documents/australia/en/pdf/other/techinternational journal of clinical legal education the law tech clinic 57 from an industry perspective, the clinic encourages law firms and legal professionals to get involved in developing legal tech solutions that add value to clients. these student-developed solutions in the ltc streamline processes and eliminate pain points for lawyers, clients and other stakeholders. at the conclusion of the clinic, students are provided with additional seminars by leading legal tech innovators that focus on how to pitch and market their innovations to assist them with preparing for their final presentation. students then present their final tool to the industry partner and university representatives. during this presentation, students demonstrate the key features of the tool and explain how it solves the given project brief and describe their design choices. after the final presentation, students provide a ‘handover brief’ to the industry partner. this document summarises the user scope of the tool, relevant research in the area and further steps to be taken in the future to enable the launch of the platform. the industry partner retains the tool and either deploys it or continues refining it. 7. assessments and learning outcomes the ltc is designed to develop teamwork, project management, stakeholder management and app marketing skills for students. students have significant autonomy in the project management process, independently organising and reviewed article 58 running meetings with the industry partners. for student assessment, the ltc falls within the monash clinical placement unit framework with specific learning as detailed below. on successful completion of this unit, students should be able to: 1. independently undertake complex legal research and: a. assess and articulate options for clients/beneficiaries, including the strengths and limitations of available legal options. b. proactively develop solutions to complex legal problems. c. synthesise large volumes of material, identifying key information relevant to developing legal material supporting casework and/or policy advocacy material. d. recognise and appropriately respond to the strategic and ethical implications of different legal approaches. e. critically analyse legal principles and the legal system from a variety of perspectives, including theoretical perspectives and identifying gaps and inadequacies in providing legal support to clients/beneficiaries. 2. effectively communicate (orally and written) legal information, principles, arguments, strategies and theories of justice with a wide range of audiences involved in the justice system, be it in terms of individual casework or wider policy advocacy. international journal of clinical legal education the law tech clinic 59 3. reflect on their own and/or peer performance, and assess capabilities as flexible, adaptable, and independent future legal practitioners by having developed self-reflection and self-management skills, independently synthesising this information. 4. demonstrate practical legal skills as appropriate to the clinical placement undertaken.90 student performance is assessed according to detailed rubrics.91 students are required to complete two reflective tasks and a video case report. the host organisation provides feedback on the student’s performance, which is converted to an assessed mark by the law faculty clinical team. 8. reflective tasks the reflective assessment tasks introduce students to critical reflection on their clinical placement in the ltc, providing students with an opportunity to review and build upon their experience. students are required to submit two reflections on their participation, interactions, knowledge and experience while undertaking the ltc. students are expected to approach the documentation process formally and thoughtfully, clearly conveying their experience to others.92 90 see <https://www.monash.edu/law/home/cle>. 91 see <https://www.monash.edu/law/home/cle>. 92 see rachel spencer ‘holding up the mirror: a theoretical and practical analysis of the role of reflection in clinical legal education’ (2012) 18 international journal of clinical legal education, 181– 216. http://www.monash.edu/law/home/cle http://www.monash.edu/law/home/cle reviewed article 60 students are provided with online seminars on reflective practice and reflective writing, focusing on the reflection process and models to assist with framing their reflection. for example: rolfe’s reflective model—‘what? so what? now what?’ is used as a communication structure and a presentation format in writing, management and business.93 ‘the 4 rs’—the 4 rs process is based on ‘reflection-on-action’, where actions are analysed and reframed. possible solutions are then developed. the process is designed to encourage students to address their ongoing learning from a practical, cognitive and emotional perspective while taking into consideration their values, ethics and beliefs.94 whatever model students choose, they are encouraged to reflect on the experience and think deeply and purposefully about their work in the clinic, what (besides 93 see rolfe, gary, ‘reflective practice: where now?’ (2) 1 (2001) nurse education in practice 21-29 and rolfe, gary, freshwater, d. and jasper, m. critical reflection in nursing and the helping professions: a user’s guide (basingstoke: palgrave macmillan 2001). rolfe’s reflective model is based upon three simple questions: what? so what? now what? once something has been experienced, the student will start to reflect on what happened. this will enable students to think through their experience, examine feelings about what happened and decide on the next steps. this leads to the final element of the cycle taking an action. 94 ibid. international journal of clinical legal education the law tech clinic 61 technical and legal content) is being learned and how that learning can be applied to future practice.95 cle relies on structured reflection to enable students to analyse the learning and insights they gain from their experience.96 the best practices report, compiled by leading clinical educators in australia to guide clinical teachers on best practice protocols for teaching in clinical settings, portrays reflection as a learning outcome that can be utilised for ‘critical analyses of legal concepts’.97 reflection is considered not only essential for effective legal practice but a critical component of clinical pedagogy.98 as evans notes, clinical legal pedagogy involves ‘a system of reflection, self-critique and supervisory feedback by which law students learn how to learn from their experiences and observation and, at its most effective level, how to take 95 see michele leering, ‘enhancing the legal profession's capacity for innovation: the promise of reflective practice and action research for increasing access to justice’ (2017) the windsor yearbook of access to justice, 34(1) 189. 96 adrian evans et al, best practices: australian clinical legal education (report for office of teaching and learning, 2013) see also margaret barry, jon c dubin and peter joy, ‘clinical education for this millennium: the third wave’ (2000) 7 clinical law review 1; rachel spencer and susan l brooks, ‘reflecting on reflection: a dialogue across the hemispheres on teaching and assessing reflective practice in clinical legal education’ (2019) 53(4) the law teacher 1, susan brooks, ‘fostering wholehearted lawyers: practical guidance for supporting law students’ professional identity formation’ (2018) 14(2) university of st. thomas law journal 412. 97 adrian evans et al, best practices: australian clinical legal education (report for office of teaching and learning, 2013). 98 see evans, adrian et al, australian clinical legal education: designing and operating a best practice clinical program in an australian law school (australian national university press, 2017) ch 7; michele leering, ‘encouraging reflective practice: conceptualising reflective practice for legal professionals’ (2014) 23 journal of law and social policy 83, rachel spencer, ‘holding up the mirror: a theoretical and practical analysis of the role of reflection in clinical legal education’ (2012) 17 international journal of clinical legal education 181, ross hyams, ‘assessing insight: grading reflective journals in clinical legal education’ (2007) 17 james cook university law review 25, c maughan and j webb, ‘taking reflection seriously: how was it for us? in c maughan and j webb (eds), teaching lawyers’ skills (butterworths, 1996) reviewed article 62 personal responsibility for clients and their legal problems’.99 it relies on structured reflection, enabling students to gain insight into their clinical experience.100 clinical educators emphasise clarity on what reflection is and the role it should play in the education or development of professionals.101 clinicians recognise that utilising reflection broadens education from merely teaching legal skills to including interpersonal skills, effective communication, self-knowledge and self-identity. this learning is deeper and more meaningful for the students when they participate as lawyers and later reflect on their experiences.102 as students become reflective practitioners, they develop self-awareness in their roles as legal practitioners. 9. video case report assessment task two is a video podcast presentation of 5–7 minutes prepared by students and uploaded for assessment. students are expected to create a video providing a description and detailed analysis of the legal/ethical issues on a current matter they are involved in during their placement. creativity in presentation is encouraged, so students may submit a case report with flowcharts, infographics, powerpoints or prezi presentations. the assessment task is intended to develop a 99 evans et al (n 97) 41. 100 ibid. 101 ibid. 102 evans et al (n 97) 42. see also roy stuckey et al, best practices for legal education: a vision and a road map (us best practices (clinical legal education association, 2007) 190. international journal of clinical legal education the law tech clinic 63 student’s skills in research, analysis and fact presentation, arguments and conclusions in law-related areas. students are encouraged to choose a topic for the video related to substantive law, the application of a law, or the operation of legal processes and/or professional ethics—provided that the issue has arisen in the day-to-day work at the placement. the video should inform an intelligent but uninformed audience about the topic they have chosen. the video is assessed according to: • understanding of the topic and the legal/procedural/policy/ethical issues it raises • clarity of structure and accuracy of content • originality • effective use of time • presentation (ability to persuade/inform the audience within a short period). 10. host organisation assessment of work performance students are required to have full attendance at the host organisation during the placement. the host organisation provides a report on each student’s performance, considering the student’s ability to demonstrate practical, legal and professional skills. reviewed article 64 11. evaluation based on collated student feedback, students report that the ltc expands their understanding of how legal technology can enhance legal services, builds their interest in the legal technology industry and increases their practical no-code app building skills. some feedback comments include: the development of a project which has a real end-user. it was an amazing experience to define a problem, and implement stages of the project to create a final product that achieves a key need. on one side the project required a close look into the law and our ability to comprehend it and put it into simple language but on the other side, it also required us to be creative and organised in our approach. (student a) the opportunities that are available for enhancing process, access to justice and efficiency. (student b) predominantly, the main take away i think i have learned is the broad array of career options available to law students, other than traditional corporate pathways. listening to all of the incredible speakers in stage 1, not all practising lawyers, or lawyers practising in alternative ways, was eye-opening. i am grateful for that exposure. (student c) international journal of clinical legal education the law tech clinic 65 12. connecting law tech education to future legal practice teaching students about how technology impacts lawyering has steadily become a critical focus within clinical education.103 in many clinical programs, legal technology and/or innovation have become a focus or primary method of clinical work.104 legal technology, access to justice clinics and law school experiential units that focus on technology have increased.105 in australia, several law schools have launched clinics where students develop apps and online materials, host hackathons and engage with other technology solutions for clients, pro se litigants, public interest organisations and the courts.106 in many of these programs, legal technology and/or innovation are the focus or primary method of the clinical work.107 boonin et al posit that the clinics and externships focusing on legal education and legal practice’s intersectionality are ‘uniquely situated—and indeed compelled—to take on this role more broadly’.108 these researchers further emphasise that clinicians are ‘positioned to be leaders in teaching this technology to students, regardless of the substantive area of law in which their clinics specialize’.109 teaching lawyering technology enriches clinical pedagogy and identifies for students the essential 103 see s boonin and l herrera (n 3) and e jones, e et al, (n 9) 104 ibid. see also cynthia l. dahl & victoria f. phillips, innovation and tradition: a survey of intellectual property and technology legal clinics, (2018) clinical law review, 25 (95) 137. 105 see <https://www.landers.com.au/media-centre/lander-and-rogers-law-tech-clinic-launches-in sydney, https://www.maddocks.com.au/insights/maddocks-sponsors-law-tech-pop-up-course>. 106 <https://globallegalhackathon.com/>. <https://www.monash.edu/entrepreneurship/events/2019/global-legal-hackathon>. 107 see s boonin and l herrera (n 3). 108 ibid 25. 109 ibid 25. http://www.landers.com.au/media-centre/lander-and-rogers-law-tech-clinic-launches-inhttp://www.maddocks.com.au/insights/maddocks-sponsors-law-tech-pop-up-course http://www.monash.edu/entrepreneurship/events/2019/global-legal-hackathon reviewed article 66 elements of an infrastructure that can support the incorporation of technology into clinical practice.110 clinical programs continue to recognise their role in preparing students for digitised legal workplaces. as such, it follows that these programs can and should embrace technology integration into their teaching and practices.111 clinical programs can equip law students with grounding practice habits, ethical frameworks and values necessary to apply technologies thoughtfully, creatively and responsibly in practice.112 lawyering technology affects the lawyer’s role in many ways: as an advisor, guide and advocate.113 clinical students are invited to explore the effects of technology on their developing professional identities, broadening their scope of best practice to include virtual service delivery.114 educating students to provide legal services to clients via technology means preparing them for how their personal and professional identities 110 ibid. 111 ibid. 112 ibid. see gary e, marchant, allenby, r braden, joseph r herkert, (eds), the growing gap between emerging technologies and legal-ethical oversight: the pacing problem, (dordrecht: springer netherlands 2011). marchant et al examine the growing gap between the pace of science and technology and the lagging response of legal and ethical oversight that society relies on to govern emerging technologies. the authors offer potential paths to more responsive regulation and governance. 113 s boonin and l herrera (n 3). 114 see jacqueline weinberg and jeffrey giddings, ‘innovative opportunities in technology and the law: the virtual legal clinic’ in ann thanaraj and kris gledhill (eds), teaching legal education in the digital age. (routledge 2022), jeff giddings, jennifer lindstrom and jacqueline weinberg, ‘risk, reward and technology – responding effectively to covid19’ (2021) international legal aid group conference, sydney, conference papers, booklet 2, 146-152, jacqueline weinberg (2020, september). ‘the virtual legal clinic at monash law – providing online access to justice since 2017’. <https://acjiblog.wordpress.com/2020/09/23/the-virtual-legal-clinic-at-monash-law-providing-online access-to-justice-since-2017/>. international journal of clinical legal education the law tech clinic 67 will be redefined in the digital age.115 technology has transformed not only legal practice but specifically the clients’ relationship to the law and legal institutions.116 a focus on the intersection of legal technology and legal service with an emphasis on access to justice and legal design, consolidates key future-ready skills for law students to address diverse client needs by breaking down legal solutions into a set of simple rules brought to life by technological solutions.117 clinical students are encouraged to tailor their communication and advice to the situation and context of each client as part of a client-centred approach, including the reasons clients cannot access onsite legal services.118 these insights provide students with opportunities to analyse and reflect on the relationship between law and access to justice and the contributions that lawyers make.119 students are encouraged to explore issues of unequal access to technology and focus on developing skills that will enhance digital communication and client-centredness, such as self-awareness and responsibility.120 115 s boonin and l herrera (n 3) 116 ibid. see also jeff giddings, ‘it’s more than a site: supporting social justice through student supervision practices’ in chris ashford and paul mckeown (eds), social justice and legal education (cambridge scholars, 2018). 117 ann thanraj, paul durston, and sam elkington, ‘a blueprint for designing creativity into learning design’ in ann thanaraj and kris gledhill (eds), teaching legal education in the digital age (routledge 2022). 118 see jacqueline weinberg and jeff giddings, ‘innovative opportunities in technology and the law: the virtual legal clinic’ in ann thanaraj and kris gledhill (eds), teaching legal education in the digital age. (routledge 2022). 119 ibid. 120 ibid. reviewed article 68 by using technology in practice, students reflect on how and why technology has the ability to facilitate or hamper client relationships, offering new insights into client centeredness and cultural competency.121 clinical legal education has long been aligned with a social justice mission with clinics prioritising the delivery of services to groups who have limited opportunities to advocate effectively for themselves.122 as students become aware of the reality of their clients’ circumstances and how important legal representation is to resolving their clients’ problems, they become more aware of their responsibility.123 they realise that, in all likelihood, their clients would not have access to legal advice if not for their assistance, and thus their social consciousness is raised.124 121 ibid. 122 most australian law school clinical programs are established within, or closely connected to community legal centres (clcs). clcs are independent, non-profit, community-based organisations that provide free and accessible legal and related services to everyday people, including people experiencing discrimination and disadvantage. clcs mostly provide legal assistance with tenancy, credit and debt, administrative law, social security, criminal law matters and family/domestic violence. these are all areas of work that have an affinity with issues of social justice. (clinical legal education guide (kingsford legal centre, 13th ed, 2019). 123 jacqueline weinberg, ‘preparing students for 21st-century practice: enhancing social justice teaching in clinical legal education’ (2021) international journal of clinical legal education; stephen wizner, ‘is social justice still relevant’ (2012) 32(2) boston college journal of law & social justice 345, stephen wizner and jane aiken, ‘teaching and doing: the role of law school clinics in enhancing access to justice’ (2004–2005) 73 fordham law review 997. 124 stephen wizner, ‘the law school clinic: legal education in the interests of justice’ (2001–2002) 70(5) fordham law review 1931. see also jacqueline weinberg, ‘preparing students for 21st-century practice: enhancing social justice teaching in clinical legal education’ (2021) international journal of clinical legal education, jeff giddings, ‘it’s more than a site: supporting social justice through student supervision practices’ in chris ashford and paul mckeown (eds), social justice and legal education (2018) cambridge scholars publishing, 43-64, stephen wizner and jane aiken, ‘teaching and doing: the role of law school clinics in enhancing access to justice’ (2004) 73 fordham law review 997. international journal of clinical legal education the law tech clinic 69 clinical pedagogy has long focused on improving students’ capacity to manage uncertainty, exercise judgment and enhance client services under challenging conditions.125 clinicians can leverage lawyering technology to teach problem-solving, flexibility and adaptation in real-life applications.126 clinicians can assist students in embracing technological uncertainty and equip them to provide direction to clients who experience technical failures or face barriers to accessing technology.127 by helping students centre the perspectives and experiences of clients within technology, clinicians can help students recognise their own biases, assumptions and privileges.128 integrating technology within clinical programs cuts across many facets of clinical legal education, including client interviewing, core skills development and reflective practice.129 clinical pedagogy views skills teaching as truly complementary to a clinic’s social justice mission, enabling students to suspend judgment, communicate and listen across differences and explore solutions creatively.130 the aims and outcomes of cle build on students’ problem-solving skills, reflective thinking about legal culture and lawyering goals, learning how to both behave and think like a 125 evans et al, australian clinical legal education: designing and operating a best practice clinical program in an australian law school (australian national university press, 2017). 126 sarah boonin and herrera, le (n 3). 127 ibid 27. 128 ibid 28. 129 see jacqueline weinberg and jeff giddings ‘innovative opportunities in technology and the law: the virtual legal clinic’ in a. thanaraj & k. gledhill (eds), teaching legal education in the digital age (routledge 2022). 130 evans et al, australian clinical legal education: designing and operating a best practice clinical program in an australian law school (australian national university press, 2017). reviewed article 70 lawyer, and understand the issues of access to justice and social justice.131 students learn to identify how various technologies affect the execution of different lawyering skills and offer feedback to students that specifically addresses their deployment of technology.132 in this way, students are ready to transfer and apply their lawyering skills in the technology-infused legal settings and will emerge as new lawyers.133 13. conclusion clinical programs play a central role in preparing lawyers for practice. this includes preparing them to be technologically competent lawyers, regardless of their law clinic’s specialty.134 as clinical educators, we need to instil in our students an understanding of how technology impacts legal practice and provide them with the opportunity to reflect on this new reality.135 there are many challenges faced by law graduates emerging in the workplace.136 increased expectations in the legal profession require students to seize experiential education opportunities to be competitive for sought-after graduate positions.137 131 ibid. 132 s. boonin and l. herrera (n 3 29). 133 jones, e, et al (n 9). 134 ibid. 135 ibid. 136 see cantatore, francina et al, ‘a comparative study into legal education and graduate employability skills in law students through pro bono law clinics’ (2021) law teacher 55 (3) 334, m pistone, (2015) 64(4) ‘law schools and technology: where we are and where we are heading’ journal of legal education, 586–604. 137 see cantatore, francina et al, ‘a comparative study into legal education and graduate employability skills in law students through pro bono law clinics’ (2021) law teacher 55 (3) 334. international journal of clinical legal education the law tech clinic 71 advances in legal tech, automation and ai will alter a lawyer’s work substantially in the future.138 accordingly, it is more important than ever for law graduates to hone the skills required for the profession and be well rounded to meet future challenges. as thanraj et al emphasise: the futurereadiness of a law student working towards becoming a digitally proficient professional is less about the tech itself and more about understanding what technology works best in a given situation and how to optimise and work in ways which are augmented by technology and legal expertise.139 within the context of the legal industry, this means that the legal practitioner who is a ‘digitally proficient professional’ will be able to appreciate the multi-dimensional aspects of their client’s problem across the physical and digital worlds, and be resourced with innovative ideas about how to attempt to resolve it through the medium of technological tools and solutions where appropriate.140 138 see amy simpson, ‘coronavirus, remote working and the virtual law firm’ (2020), <www.lexisnexis.co.uk/blog/ future-of-law/coronavirus-remote-working-and-the-virtual-law-firm> (accessed 24 september 2020). 139 ann thanraj, paul durston, and sam elkington, ‘a blueprint for designing creativity into learning design’ in ann thanaraj and kris gledhill (eds), teaching legal education in the digital age (routledge 2022) 86. 140 ibid. http://www.lexisnexis.co.uk/blog/ reviewed article 72 law clinics like the ltc provide students with the opportunity to prepare for the real challenges faced in practice by enhancing their communication skills, teamwork, empathy and resilience.141 the ltc provides students with real-world insights into the intersection between legal services and technology. it enables them to reflect on the skill sets that represent critical competencies for them as future lawyers. 141 cantore et al, ‘a comparative study into legal education and graduate employability skills in law students through pro bono law clinics’ (2021) law teacher 55 (3) 315. jacqueline weinberg and ross hyams, monash university, australia* 1. legal technology and legal practice 2. legal technology and legal education 3. legal technology and clinical legal education 4. the law tech clinic within the monash clinical program 5. structure of the law tech clinic 6. design thinking 6.1 phase one 6.2 phase two 7. assessments and learning outcomes 8. reflective tasks 9. video case report 10. host organisation assessment of work performance 11. evaluation 12. connecting law tech education to future legal practice 13. conclusion editorial 1 editorial welcome to the first special edition of 2023 on entrepreneurial law clinics in clinical legal education. this special edition of the international journal of clinical legal education allows for a focus on the current work that is taking place in entrepreneurial law clinics. such clinics have taken various forms including those focusing on business and the impact of human rights protections; business advice for members of the refugee community; start-ups, business structures and incorporation; dispute resolution in commercial settings; the application and use of force majeure certificates and contracts; international collaborations on approaches to the development of business-focused law clinics; the development and operation of community led businesses and cooperatives; and a clinical setting as a forum to learn about the entrepreneurial mind-set. students learn about business formation, development and growth, while assisting entrepreneurs with complex legal issues. the clinics allow students to gain hands-on experience in a range of legal areas, such as corporate law, intellectual property rights, contracts, and employment law. clinics of this type are essential. they allow universities and their students to provide affordable legal services to small and start-up businesses, ensure businesses have international journal of clinical education june 2023 2 access, often, to experts and information across ‘just in time’ and ‘just in case’ scenarios, and the commercial settings in particular lend themselves to mutual education exchange and for the legal and business communities to build strong relationships. these clinics operate on real, live, and simulated client work to achieve the learning outcomes designed in the clinical programme. each form an important element of higher education. in the case of live client work, the full range of problems, emotions, technical issues and regulatory and compliance concerns may be present. clinics with simulated clients provide a different learning experience, facilitating structured learning where challenges and opportunities can be scaffolded to allow the students to develop key skills and gain confidence across a range of attributes which help them to be the graduate lawyers a modern legal sector demands. as well as providing many practical benefits for students such as enhanced employability, networking opportunities, advancing their reputations and providing a competitive advantage in the employment market and workplace, entrepreneurial law clinics offer numerous pedagogic benefits to the students themselves. students in entrepreneurial clinics often develop a deeper understanding of the law given the nature of the needs and issues faced by businesses and their personnel, they can apply their academic knowledge to real-world situations, enhancing their understanding of legal concepts and procedures. they also develop essential skills editorial 3 such as problem-solving, critical thinking, and effective communication. further, the business-related nature of these clinics necessitates interdisciplinary learning and a perspective shift away from seeing problems just in their legal context to a much more nuanced series of issues where traditional adversarial conflict resolution techniques are antithetic to maintaining business relationships. whichever live-client or simulated-client model is used, the development of the students to become modern law graduates with the skills and techniques to thrive in an entrepreneurial setting is paramount. through our clinical programmes we shape our students to become the next generation of lawyers. given this brief outline of some of the work taking place in university law clinics, and the educational narratives driving their direction, i am delighted to share with you the papers we have in this edition. beginning on page 7, elaine gregersen, ‘state of the nation: 10 years of entrepreneurial law clinic supervision in the united kingdom’ is the perfect start to this edition as elaine speaks of her experience as an entrepreneurial law clinic supervisor for 11 years where, using a narrative approach, elaine examines her journey to supervision. elaine explores the extent of these clinics across the uk, whilst reflecting on the us and its clinical suite, considering their strategic plans and pedagogic research. a particularly interesting aspect of the article is in the transition of university law clinics, challenging the traditional conceptualisation of social justice in the context of clinical legal education. students international journal of clinical education june 2023 4 are increasingly being provided with the opportunity to advise business clients and this can have positive impacts for their career prospects. we continue with jacqueline weinberg and ross hyams’ work on ‘the law tech clinic: leading the way in entrepreneurial law clinics’ where the authors, using the backdrop of the global, economic and technical advancements in the practise of law, discuss their pioneering clinical programme. in the article, jacqueline and ross outline the ways in which the clinic enables students to develop professional and practical legal skills that will help them become successful entrepreneurial lawyers. specifically, is explored the development of the students’ skills to integrate the use of technology with innovative legal services, working with live clients, and through endto-end industry input to develop client-ready applications, equipping them with frameworks for the knowledge, skills and attributes to be technologically proficient future legal practitioners. in our third article, ‘thinking like entrepreneurs: qlegal’s experience of teaching an entrepreneurial mindset’ the theme of developing the students’ entrepreneurial outlook is presented by eliza platts-mills and emily wapples. eliza and emily examine how qlegal, the pro bono commercial law clinic within the centre for commercial law studies at queen mary, university of london, teaches students to develop an entrepreneurial mindset. the mindset of an entrepreneur is distinguished from that typically needed in commercial awareness given the need for skills including the editorial 5 ability to capitalize on opportunities, to be flexible and change course when needed, and view mistakes as an opportunity to learn. the authors continue by remarking how entrepreneurs are distinguished by their growth mindset, resilience, appetite for innovation, their comfort with taking risks and in doing things themselves. the conclusions drawn is for law schools to teach law students to think like their entrepreneur clients. this theme is continued in a practice report by james marson and katy ferris. in this piece, katy and i explore the notion of the ‘model’ of the modern, entrepreneurial lawyer. this refers to the range of skills and attitudes necessary for the law graduate to possess to thrive in an increasingly interdisciplinary legal setting. we explain how, through the operation of two clinical modules and using a simulated corporate client model, the model of the t shaped lawyer can be achieved through a structured and scaffolded learning programme. interestingly from our experience, the same skills-set can be developed in both law and non-law students studying these modules. the modules and the learning programme developed also facilitate the interdisciplinary approach, so valuable in the modern, entrepreneurial, t shaped lawyer. the final contribution in this edition is made by stephanie jones who in ‘frustrating times: notes from the field’ offers a fascinating insight into a clinic coming to prominence in the aftermath of the covid 19 pandemic. stephanie examines the impact of the pandemic on the concept of force majeure and contractual remedies international journal of clinical education june 2023 6 for small and medium-sized enterprises in the uk and the role of law clinics in advising the businesses on the use of terms and conditions in business-to-business contracts. indeed, in introducing the first of our articles, stephanie’s commentary becomes even more apt. ‘… these tough times have brought the potential impact of entrepreneurial law clinics to the fore, cementing their significance for industry and commerce.’ dr james marson j.marson@shu.ac.uk mailto:j.marson@shu.ac.uk reviewed article – teaching and learning in clinic pro bono: what’s in it for law students? the students’ perspective paul mckeown[footnoteref:1] [1: paul mckeown is an associate professor and the director of the student law office at northumbria university, newcastle upon tyne, uk] northumbria university, uk abstract in england and wales, there is an increasing need for the provision of pro bono legal services. law students may be a resource that can help fill the access to justice gap, whilst at university and onwards in their future careers. whilst some students are intrinsically motivated towards altruistic behaviour, many are not. this article will consider what motivates students to undertake pro bono work whilst at law school. the article will explore the range of intrinsic and extrinsic motivating factors for student participation in pro bono programmes and consider how students can be encouraged to engage in such activities. the article will also consider whether exposure to pro bono experience can instil a public service ethos in students. in conclusion, the article will highlight experience as an influential factor in encouraging initial participation in pro bono work but also instilling a willingness to undertake pro bono work in the future. introduction many would argue that lawyers have a moral obligation to promote access to justice.[footnoteref:2] it is also arguable that it is more than a moral obligation and is in fact a professional obligation. the international bar association states that a lawyer is ‘an indispensable participant in the fair administration of justice.’[footnoteref:3] further, the united nations also recognise this duty stating that ‘[l]awyers shall at all times maintain the honour and dignity of their profession as essential agents of the administration of justice.’[footnoteref:4] pro bono work may be considered as one of the methods for fulfilling this obligation.[footnoteref:5] [2: for discussion on the role of lawyers in promoting access to justice, see alice woolley, ‘imperfect duty: lawyers' obligation to foster access to justice’ (2008) 45:5 alberta law review 107] [3: international bar association, ‘international principles on conduct for the legal profession’ (2011) available at file:///c:/users/intel_000/downloads/iba_international_principles_on_conduct_for_the_legal_prof%20(4).pdf (accessed 10 october 2016)] [4: ohchr, ‘basic principles on the role of lawyers’ (1990) available at http://www.ohchr.org/en/professionalinterest/pages/roleoflawyers.aspx (accessed 10 october 2016) ] [5: see debra d. burke; george w. mechling; james w. pearce, ‘mandatory pro bono: cui bono’ (1996) 25:4 stetson law review 983; deborah l. rhode, ‘the pro bono responsibilities of lawyers and law students’ (2000) 27:2 william mitchell law review 1201; douglas l. colbert, ‘clinical professors' professional responsibility: preparing law students to embrace pro bono’ (2011) 18:3 georgetown journal on poverty law and policy 309 ] the law society of england and wales reports that 63% of solicitors had conducted pro bono work (undefined[footnoteref:6]) at some point in their career.[footnoteref:7] in 2015, 37% of solicitors reported that they had undertaken at least one hour of pro bono work (as defined by the pro bono protocol[footnoteref:8]) in the preceding 12 months.[footnoteref:9] this is a statistically significant decline on the 42% reported in the 2014 survey.[footnoteref:10] interestingly, 43% of solicitors who did not provide pro bono services suggested that there were not adequate opportunities to do so.[footnoteref:11] unfortunately, it is not clear what is meant by the lack of opportunities. this phrase could be interpreted to mean that solicitors did not believe there was a need for pro bono work which seems unlikely. an alternative interpretation for this phrase is that their firm did not support pro bono opportunities. reasons cited for not undertaking pro bono work include transactional lawyers stating that they are not litigators, lack of time, cost to the firm in terms of time and money, lack of knowledge in relation to relevant laws affecting the indigent, and not knowing how to get involved in an area of pro bono that interests the individual.[footnoteref:12] some lawyers also express concern about a perceived conflict of interest.[footnoteref:13] all these reasons have been recognised as barriers to solicitors undertaking pro bono in england and wales.[footnoteref:14] kutik however identifies one of the biggest barriers preventing pro bono work as ‘inertia’, explaining that lawyers ‘haven’t done it, [they] don’t know how to do it, and [they] won’t make the effort to learn.’[footnoteref:15] [6: there is no universally accepted definition of ‘pro bono’. evans highlights that ‘some lawyers consider work done for legal aid as pro bono because of the low level of remuneration, while other would also include matters in which that have substantially reduced, but not waived, their fees.’ (adrian evans, ‘recognising the conditional nature of pro bono motivation: avoiding ‘aspirational’ compulsion and developing an appropriate pro bono ethic in new lawyers’ available at http://www.nationalprobono.org.au/conference/pdf/2003_papers/3a_evans.pdf (accessed 23 september 2016)) ] [7: the law society of england and wales, ‘the pro bono work of solicitors: pc holder survey 2015’ available at http://www.lawsociety.org.uk/support-services/research-trends/solicitors-pro-bono-work-2015/ (accessed 23 september 2016)] [8: the pro bono protocol defines pro bono as ‘legal advice or representation provided by lawyers in the public interest including to individuals, charities and community groups who cannot afford to pay for that advice or representation and where public and alternative means of funding are not available.’ further, ‘[l]egal work is pro bono legal work only if it is free to the client, without payment to the lawyer or law firm (regardless of the outcome) and provided voluntarily either by the lawyer or his or her firm.’ the joint pro bono protocol for legal work available at http://www.lawsociety.org.uk/support-services/practice-management/pro-bono/the-pro-bono-protocol/ (accessed 23 september 2016) ] [9: ibid] [10: ibid] [11: ibid] [12: robert s. gerber, ‘the top five excuses for not doing pro bono work, and why they’re all bad’ san diego daily transcript 4 may 2005 available at https://www.sheppardmullin.com/media/article/324_pub388.pdf (accessed 2 december 2016) ] [13: for example, see elisabeth wentworth, ‘barriers to pro bono: commercial conflicts of interest reconsidered’ (2001) 19 law in context: a socio-legal journal 166] [14: lawworks, ‘the case for pro bono and getting started’ available at file:///c:/users/intel/downloads/lawworks-pro-bono-mini-guide-the-case-for-pro-bono-and-getting-started.pdf (accessed 2 december 2016)] [15: david a. kutik, ‘pro bono: why bother’(2005) 22:7 gpsolo 44, 46 ] part 1 of the legal aid, sentencing and punishment of offenders act 2012 made significant cuts to the scope of legal aid in england and wales as of 1 april 2013. as a consequence of these cuts, the number of unrepresented individuals in the family courts has increased. the national audit office reports an increase of 30% of family court cases in which neither party had legal representation in 2013-14 compared with 2012-13.[footnoteref:16] the number of litigants in person appearing before the civil courts is also likely to have increased but there is not sufficient data in relation to this.[footnoteref:17] the master of the rolls, lord dyson, in giving evidence to the house of commons justice committee summed up the issue stating: [16: national audit office, ‘implementing reforms to civil legal aid’ (2014) hc 784, session 14-15 para. 1.25 available at https://www.nao.org.uk/wp-content/uploads/2014/11/implementing-reforms-to-civil-legal-aid1.pdf (accessed 23 september 2016)] [17: ibid, para. 1.24] “it is impossible to prove but it would be extraordinary, frankly, if there were not some cases that are decided adversely to a litigant in person which would have been decided the other way had that litigant in person been represented by a competent lawyer. it is inevitable.”[footnoteref:18] [18: house of commons justice committee, ‘eighth report of session 2014-15, 4 march 2015: impact of the changes to civil legal aid under part 1 of the legal aid, sentencing and punishment of offenders act 2012’, para.137 available at http://www.publications.parliament.uk/pa/cm201415/cmselect/cmjust/311/31102.htm (accessed 23 september 2016)] a further issue, as noted by steven matthews of the magistrates’ association, was: “[individuals would be] put off making what may be a legitimate application because of the fact that they cannot get legal representation, have been unable to get advice and are put off by the forms and the process and so on.”[footnoteref:19] [19: ibid] it is difficult to quantify the numbers of individuals who decide not to pursue a legitimate legal claim because they are put off by the process. however, one australian report estimated that not knowing what to do was cited as the reason for inaction in 30% of substantial civil legal problems not acted upon in 2008.[footnoteref:20] [20: productivity commission, ‘access to justice arrangements’ volume 1, 133 available at http://www.pc.gov.au/inquiries/completed/access-justice/report/access-justice-volume1.pdf (accessed 29 june 2017) ] a depressing picture is therefore emerging that at a time when demand, or at least a need, for pro bono legal services is increasing, the percentage of solicitors providing such services is decreasing. there is perhaps a need to consider what steps can be taken to increase the provision of pro bono services by the legal profession, or indeed whether the provision of pro bono should be increased. it has been argued that increasing the provision of pro bono encourages more legal aid cuts.[footnoteref:21] however, these issues are beyond the scope of this article which will focus upon the provision of pro bono services by law students. [21: for example, michael gove mp stated that ‘[w]hen it comes to investing in access to justice then it is clear to me that it is fairer to ask our most successful legal professionals to contribute a little more rather than taking more rather than taking more in tax from someone on the minimum wage.’ (the rt hon michael gove mp, ‘what does a one nation justice policy look like? 23 june 2015 available at https://www.gov.uk/government/speeches/what-does-a-one-nation-justice-policy-look-like (accessed 6 march 2017)). the law society of england and wales maintains that ‘pro bono is never a substitute for a properly funded system of legal aid, which needs skilled and experienced solicitors to provide expert legal advice to those who need it.’ (the law society, ‘law society statement on ‘one nation justice system’ 23 june 2015 available at http://www.lawsociety.org.uk/news/press-releases/law-society-statement-on-one-nation-justice-system/ (accessed 6 march 2017)). see also richard abel, ‘the paradoxes of pro bono’ (2010) 78:5 fordham law review 2443 ] the opportunities for students to undertake pro bono work at law school in the uk is good with at least 70% of all law schools offering pro bono opportunities to their students.[footnoteref:22] however, the evidence as to whether participation in pro bono programmes impacts upon a student’s desire to undertake public service work in their future career is somewhat mixed. some quantitative studies show little or no impact of clinical and pro bono programmes on students’ desire to continue in pro bono/public service work in their future careers[footnoteref:23] whilst other studies suggest clinical legal education and pro bono work can have a positive impact upon students and their willingness to undertake public service work.[footnoteref:24] [22: damian carney, frank dignan, richard grimes, grace kelly and rebecca parker, ‘the lawworks law school pro bono and clinic report 2014’ available at https://www.lawworks.org.uk/sites/default/files/lawworks-student-pro-bono-report%202014.pdf (accessed 23 september 2016). it should be noted that ‘pro bono work’ was defined as ‘an activity organised and/or delivered by a law school that provides a legal service to an individual, group or organisation without charge’. this is a wide definition and encompasses mandatory and voluntary activities as well as credit and non-credit bearing activities. there has been discussion as to what work is included within the meaning of ‘student pro bono’ (for example, dina r. merrell, ‘pro bono, pro you’ (2001) 29:7 student law. 39; tracey booth, ‘student pro bono’ (2004) 29:6 alternative l.j. 280). for a general discussion on the definition of ‘pro bono’ and ‘clinical legal education’ see kevin kerrigan, ‘what is clinical legal education and pro bono?’ in a student guide to clinical legal education and pro bono (kevin kerrigan and victoria murray eds. 2011) ] [23: see deborah l. rhode, ‘pro bono in principle and in practice’ (2003) 53:3 journal of legal education 413; robert granfield, ‘institutionalizing public service in law school: results on the impact of mandatory pro bono programs’ (2007) 54 buffalo law review 1355; paul mckeown, ‘law student attitudes towards pro bono and voluntary work: the experience at northumbria university’ (2015) 22:1 international journal of clinical legal education [vi]] [24: see sally maresh, ‘the impact of clinical legal education on decisions of law students to practice public interest law’ in educating for justice: social values and legal education (jeremy cooper and louise g. trubek eds. 1997); deborah a. schmedemann, ‘priming for pro bono publico: the impact of the law school on pro bono participation in practice’, in private lawyers and the public interest: the evolving role of pro bono in the legal profession (robert granfield and lynn mather eds. 2009) ] why should students do pro bono? if a law student were to carry out a simple google search asking ‘why should students do pro bono’ it elicits pages of results from various professional bodies, universities and the wider media extoling the benefits of such work. academic literature addressing this issue tends to encompass conceptual articles citing reasons why the authors believe students should engage in pro bono activities.[footnoteref:25] surprisingly there has been little empirical research reporting the reasons students cite as motivating them into carrying out pro bono work. [25: for example, howard lesnick, ‘why pro bono in law schools’ (1994) 13:1 law and inequality 25; di mari ricker, ‘pro bono pays’ (1997) 26:3 student law 30; deborah l. rhode, ‘the pro bono responsibilities of lawyers and law students’ (2000) 27:2 william mitchell law review 1201; craig linder, ‘student-lawyer partnerships for pro bono’ (2007) 35:7 student law 29 ] the reasons for undertaking pro bono work can broadly be categorised as practical, tactical and ethical.[footnoteref:26] practical reasons include enhanced legal skills, broader legal knowledge, experience, employability and increased job satisfaction. tactical reasons include promoting the image of the individual, the organisation and the legal profession as a whole. from an ethical perspective, it has been argued that lawyers should undertake pro bono work because they are under a moral obligation to do so due to the privileged position the legal profession occupies in society.[footnoteref:27] [26: stephen parker, ‘why lawyers should do pro bono work’ (2001) 19 law in context: a socio-legal journal 5] [27: see parker n.26; deborah rhode, ‘cultures of commitment: pro bono for lawyers and law students’ (1999) 67 fordham law review 2415, 2419] further, the motivating factors to undertake pro bono work may also be categorised as intrinsic or extrinsic. intrinsic motivation can ‘be defined as the doing an activity for its inherent satisfactions rather than for some separable consequence.’[footnoteref:28] within the context of pro bono work, those who undertake such work due to their own ‘personal characteristics, values and attitudes’[footnoteref:29] are intrinsically motivated. extrinsic motivation ‘is a construct that pertains whenever an activity is done in order to attain some separable outcome.’[footnoteref:30] if pro bono work is carried out to improve skills, enhance reputation or for some other reward, this is extrinsically motivated behaviour. alternatively, extrinsic motivation also encompasses behaviour motivated to avoid adverse consequences such as failing a programme of study if a pro bono requirement is mandated. [28: richard m ryan and edward l deci, ‘intrinsic and extrinsic motivations: classic definitions and new directions’ (2000) contemporary educational psychology 54, 56] [29: rhode, n.27, 2427] [30: ibid. 60] extrinsic motivation has been criticised within education as: ‘the more we reward people for doing something, the more likely they are to lose interest in whatever they had to do to get the reward. extrinsic motivation, in other words, is not only quite different from intrinsic motivation but actually tends to erode it.’[footnoteref:31] [31: alfie kohn, ‘how not to teach values: a critical look at character education’ (1997) phi delta kappan available at http://www.alfiekohn.org/article/teach-values/?print=pdf ] within clinical legal education it has been argued that extrinsic motivation is ‘less effective than, and may actually erode, intrinsic motivation.’[footnoteref:32] however, the fundamental problem is that ‘intrinsic motivation will occur only for activities that hold intrinsic interest for an individual’[footnoteref:33] and therefore if a student has not previously experienced any form of voluntary work, they may hold no interest in the subject matter. if it is envisaged that law schools can instil a pro bono ethos in students then it is necessary to look beyond intrinsic and towards extrinsic motivation to attract and encourage students to participate and value the activity. [32: donald nicolson, ‘education, education, education: legal, moral and clinical’ (2008) 42:2 law teacher 145, 154] [33: ryan and deci, n.28, 59] ryan and deci posit that ‘[t]his problem is described within [self-determination theory (sdt)] in terms of fostering the [internalisation] and integration of values and behavioural regulations.’[footnoteref:34] [original emphasis] organismic integration theory, a sub-theory of sdt, was ‘introduced to detail the different forms of extrinsic motivation and the contextual factors that either promote or hinder [internalisation] and integration of the regulation for these [behaviours].’[footnoteref:35] the oit taxonomy can be visualised at fig.1 below. [34: ibid, 60] [35: ibid, 61] fig.1 a taxonomy of human motivations[footnoteref:36] [36: drawn from ryan and deci, n.28, 61] extrinsic motivation can be categorised as: · external regulation action performed due to an external demand or to obtain an external reward[footnoteref:37] [37: ryan and deci, n.28, 61] · introjected regulation actions performed with a feeling of pressure in order to avoid guilt or anxiety or to attain ego-enhancements or pride[footnoteref:38] [38: ibid, 62] · identification person identifies the personal importance of the regulation and therefore accepts it as their own[footnoteref:39] [39: ibid] · integrated regulation fully assimilate identified regulations to the self through self-examination and alignment with other values and needs[footnoteref:40] [40: ibid] within the context of pro bono work, as identified earlier, students may be motivated to undertake such work for a variety of reasons. if students conduct mandatory pro bono work, or if the work is performed for assessment purposes, this is an example of external regulation and therefore the behaviour is perceived as controlled and lacking autonomy. however, if students engage in pro bono work because they recognise it will enhance their legal skills and improve their employability, they will identify with the value of the activity in relation to their own career objectives. if this is taken a step further, and through reflection, the value of pro bono work is brought into congruence with the student’s other values and needs, then the pro bono work becomes assimilated and extrinsically motivated actions become autonomous and self-determined. whilst the student may originally become exposed to pro bono work because it is mandated, or they wish to achieve a good grade, they may then experience the intrinsic value of the work in itself thus shifting their own values. for example, quigley, drawing upon the work of mezirow, posits that educators can utilise the phenomenon known as the ‘disorientating moment’ where the student is exposed to a disorientating or disturbing experience to transform their ‘societal and personal beliefs, values and norms.’[footnoteref:41] [41: fran quigley, ‘seizing the disorientating moment: adult learning theory and teaching social justice in law school clinics’ (1995) 2 clinical law review 37, 51-56] there are very few reported empirical studies asking students what motivates them to conduct pro bono. combe, with reference to the aberdeen law project, reports that ‘[t]he highest ranking reason for joining was for experience, followed by social justice and skills development…social justice was not the primary factor in their joining the volunteer activity.’[footnoteref:42] nicolson, with reference to the law clinic at the university of strathclyde, reports that ‘self-centred reasons’ (‘to gain useful skills’ and ‘to put into practice theoretical knowledge’) ranked higher than ‘altruistic reasons’ (‘to help others’ and ‘to increase access to justice’) as the reason for wanting to join the clinic.[footnoteref:43] however, those students ‘who successfully completed the rigorous selection process seemed far more motivated by altruism in their decision to apply for membership compared to general clinic applicants.’[footnoteref:44] this is probably explained by the fact students are selected on the basis of their commitment to social justice.[footnoteref:45] [42: malcolm m. combe, ‘selling intra-curricular clinical legal education’ (2014) 48:3 the law teacher 281, 290 doi: 10.1080/03069400.2014.965950; see also ‘student attitudes to clinical legal education’ available at https://basedrones.wordpress.com/student-attitudes-to-clinical-legal-education/ (accessed 22 september 2016) ] [43: donald nicolson, ‘calling, character and clinical legal education: a cradle to grave approach to inculcating a love for justice’ (2013) 16:1 legal ethics 36, 43] [44: ibid] [45: donald nicolson, ‘”our roots began in (south) africa”: modelling law clinics to maximise social justice ends’ (2016) 23:3 international journal of clinical legal education 87, 106] a study by evans and palermo into australian lawyers’ values considered pro bono in the context of professional responsibility.[footnoteref:46] respondents were fairly equally divided as to whether they would agree to pursue a hypothetical pro bono case.[footnoteref:47] of those respondents who would accept the pro bono case, access to justice was ranked as the most important motivating factor for taking on the case. however, this is qualified as ‘participants clearly expressed this issue in relation to personal interests and desires rather than mentioning any professional ethics’.[footnoteref:48] other motivating factors determining how respondents would act include professional ambition (relating to the high profile nature of the case), employer loyalty (prioritise work for employer) and employment security (if they pursued a case against the will of their employer).[footnoteref:49] [46: adrian evans and josephine palermo, ‘zero impact: are lawyers’ values affected by law school’ (2005) 8:2 legal ethics 240] [47: ibid, 249] [48: ibid, 250] [49: ibid] an interesting qualitative study was conduct by behre into student motivations for pro bono following a tornado that devastated tuscaloosa, alabama in april 2011.[footnoteref:50] whilst the circumstances of this study are very specific to the events at the time, the findings are useful. behre reports that students were initially motivated through the ‘need to help’ and ‘as a natural response to the shock of witnessing the tornado’s destruction.’[footnoteref:51] ‘[s]urvivor guilt’ and the ‘need to give back to the community’ were also cited as initial motivating factors to volunteering.[footnoteref:52] these motivating factors are intrinsic and ‘as a direct response to witnessing a natural disaster.’[footnoteref:53] however, the student’s rationale for their continued volunteer effort provides a good level of insight into student motivation. ‘meaningful volunteer experiences’ such as ‘personal, meaningful interaction with strangers’,[footnoteref:54] organisation,[footnoteref:55] ‘opportunities for students to use their professional training’,[footnoteref:56] and the opportunity to gain ‘new legal knowledge and skills’[footnoteref:57] were all cited as motivating factors. behre however notes that ‘[s]tudents in general were more concerned about how they could help people and less concerned about how the experience would benefit them.’[footnoteref:58] finally, ‘membership in the community’ was also cited as a motivating factor for volunteering and the students ‘valued the experiences they had connecting to people from diverse backgrounds.’[footnoteref:59] [50: kelly alison behre, ‘motivations for law student pro bono: lessons learned from the tuscaloosa tornado’ (2012-2013) 31 buffalo public interest law journal 1 ] [51: ibid, 28] [52: ibid, 29] [53: ibid] [54: ibid, 30] [55: ibid, 31] [56: ibid, 34] [57: ibid] [58: ibid] [59: ibid, 34-38] methodology law students at northumbria university were invited to enter an essay competition entitled ‘pro bono: what’s in it for law students?’ the writer of the winning essay was awarded £125 voucher and the publication of their essay in the international journal of clinical legal education.[footnoteref:60] a representative of the international journal of clinical legal education adjudicated the competition. the students were not provided with any guidance as to the definition of ‘pro bono’ and therefore the essays reflect the students’ own interpretation of this term. further, the competition was open to all law students at northumbria university regardless of whether they had any pro bono or clinical legal education experience. this is not a comparative study, merely a study considering the student perspective. the essays were analysed using nvivo software. [60: the decision was also taken to publish three high commended essays at the conclusion of the competition. the writers of these essays also received a voucher to the value of £25.] the competition was arguably subjective; no criteria was set to determine the winning essay. this was deliberate to encourage honest views as to the motivating factor for undertaking pro bono work. the decision was taken to avoid pre-defined criteria as this may have resulted in essays becoming formulaic. what the students say: the essays reveal that the reasons students believe they should undertake pro bono work are varied. the article will explore the various reasons and motivations for undertaking pro bono work in more detail below. before these reasons and motivations are considered, i will first look at the students’ understanding of pro bono. understanding pro bono as stated above, there is no settled definition of pro bono work and this article is not intended to consider what type of work should or should not be included. further, it is beyond the scope of this article to consider whether clinical type activities fall within the definition. pro bono is shortened from the latin term ‘pro bono publico’ meaning ‘for the public good’. there is no requirement, at face value, for the work to be carried out for a particular group or individual, or indeed without charge, for it to be classified as pro bono. however, it is typically expected that work will only qualify as pro bono work if it is carried out for free and on behalf of individuals, charities and community groups who cannot afford to pay for advice and representation.[footnoteref:61] [61: see for example the law society, the joint pro bono protocol for legal work available at http://www.lawsociety.org.uk/support-services/practice-management/pro-bono/the-pro-bono-protocol/ (accessed 15 september 2016); american bar association, aba model rule 6.1 available at http://www.americanbar.org/groups/probono_public_service/policy/aba_model_rule_6_1.html (accessed 15 september 2016)] the consensus amongst the students is that pro bono work should be carried out for low income and vulnerable members of society with statements such as: “at its most primal level pro bono work protects those who do not have the financial means to benefit from the legal system.”[footnoteref:62] [62: essay 4] and “[p]ro bono operates with the aim of protecting those who are most vulnerable in society, whom are in need of legal representation and cannot afford it.”[footnoteref:63] [63: essay 2] further, it is also apparent that the students recognise pro bono work as an innate part of the legal profession stating: “as future custodians of the legal profession, law students should embark on pro bono as it reflects the core values of justice.”[footnoteref:64] [64: essay 5] one student however recognised that there is a conflict within the legal profession between the government (or the state) and the profession’s responsibility to ensure access to justice stating: “the government proposed that pro bono could fill the void left by the withdrawal of funding. many in the profession attacked this notion as fanciful. however, to ignore such a notion would be ultimately unwise. it is clear there is mounting pressure on all entering the profession to complete their fair share of pro bono work.”[footnoteref:65] [65: essay 4] there is also explicit recognition that pro bono work is carried out for reputational advantage, in other words, for tactical reasons. “[pro bono] also operates to support the reputation of the profession overall. lawyers are required to uphold public confidence in the [profession] and pro bono work works to dispel the stereotypes which plague lawyers. it promotes the idea that [lawyers] are not here to charge extortionate fees, but are actually here to provide a public service. pro bono work shows a clear dedication to the law for the right reasons, a desire to help people and an interest in the law, regardless of the time or effort they may have to expel in the process.”[footnoteref:66] [66: essay 6] the essays suggest that students understand pro bono to be an important aspect of the legal profession and further, it involves working for the benefit of vulnerable and indigent clients thus supporting access to justice. the students demonstrate that whilst there are conflicts arising as to where the responsibility lies for ensuring access to justice, there is recognition that the legal profession shares that responsibility. further, the legal profession as a whole benefits from pro bono work due to the positive image it portrays.[footnoteref:67] [67: although see gary a. hengstler, ‘vox populi the public perception of lawyers: aba poll’ (1993) 79 a.b.a. journal 60, 62 which reports that ‘minorities, the unemployed, members of low-income households, and adults under 30 were the most likely to feel favourably towards lawyers’] why should students undertake pro bono? we can broadly categorise the reasons cited by the students for undertaking pro bono as: · public service · skills · employability · networking · experience · satisfaction[footnoteref:68] [68: the reasons cited by the students for undertaking pro bono work accord with reasons cited by parker. see n.26] there are areas of natural overlap in the reasons cited by the student. for example, enhancing skills and experience are likely to improve employability. however, within the analysis, the focus has been on the primary motivating factor. · public service public service was the only reason cited by every student as a reason to undertake pro bono work. however the weight given to public service among the essays varied considerably. whilst one student devoted over half their essay to public service, other students merely acknowledges the public service ethos and instead concentrates their essay on the benefits to the individual: “whilst the case for the utility of pro bono for the aggrieved has been made extensively, this essay considers how the volunteers may benefit themselves in the process.”[footnoteref:69] [69: essay 8] the essays support the notion that law students see themselves as part of the wider community saying, for example, that: “by participating in pro bono work, law students contribute constructively to the community around them in a most unique way.”[footnoteref:70] [70: essay 4] it may be questioned as to how engagement with the wider community is a benefit to the student. in response to this question, the law school is about more than teaching students’ knowledge and skills; indeed it is a ‘professional socialization experience’.[footnoteref:71] this wider role is also recognised by the quality assurance agency for higher education (qaa) in the united kingdom in setting out benchmark standards to describe a law student’s skills and qualities of mind. the qaa states that a graduate of law with honours is expected to have demonstrated, amongst other things, an ‘awareness of principles and values of law and justice, and of ethics’ and a ‘knowledge and understanding of theories, concepts, values, principles and rules of public and private laws within an institutional, social, national and global context’.[footnoteref:72] engagement with the wider community fulfils this wider role for the law school by providing the student with a ‘professional socialization experience’ and facilitating their understanding of the role of law within the ‘institutional, social, national and global context’. [71: james l. baillie and judith bernstein-baker, ‘in the spirit of public service: model rule 6.1, the profession and legal education’ (1995) 13:1 law & inequality 51, 67] [72: qaa, ‘subject benchmark statement: law’ (2015) available at http://www.qaa.ac.uk/en/publications/documents/sbs-law-15.pdf (accessed 28 june 2017)] through exposure to a wide variety of people, especially those from backgrounds that the students may not have ordinarily been exposed to, the student becomes a more rounded individual and thus develops as a professional. this is explained by one student as follows: “clients that students experience in [p]ro [b]ono work tend to come from a variety of social backgrounds. this helps to break down any unconscious social bias they may have, to ensure that in practice they approach each case with an open mind and with the necessary social awareness and empathy required of a lawyer. working in [p]ro [b]ono work prior to going in[to] practice helps students to develop as lawyers whose primary concern is to help their clients rather than being purely motivated by money and career advancement.”[footnoteref:73] [73: essay 12] there is further recognition within the essays that this engagement with the community can place the law into context for the student and add perspective to their aspirations as a lawyer that is unachievable in the classroom environment. for example, baillie and bernstein-baker considered a number of studies and concluded that merely including discussions on the need for pro bono in a classroom setting would not have an effect on student attitudes.[footnoteref:74] it is therefore important for students to experience pro bono so they can therefore feel the intrinsic benefit of pro bono work, a notion summarised as follows: [74: baillie and bernstein-baker, n.71, 64] “it is imperative to understand that the benefits of [p]ro [b]ono are not limited to professional applications; legal involvement within the community allows one to make meaningful contributions to those in need, and in doing so allows the student to appreciate the “vital role the law plays.” legal [s]ervice has been denoted as being “unaffordable and out of reach.” the common view held is that “one of the most perplexing facts about our perplexing legal market is its failure to provide affordable services for just about anyone but the rich and corporations.” thus, by providing legal aid to those who lack financial stability, the student is able to experience “intrinsic morale” and self-worth, something that all lawyers must be familiar with, and something that extends beyond the walls of the classroom.”[footnoteref:75] [75: essay 11] the students’ also demonstrated awareness that the altruistic value of pro bono work also improved the often-tarnished reputation of lawyers and therefore whilst the work is of benefit to the wider community, it is also of benefit to the legal profession as a whole.[footnoteref:76] this is illustrated as follows: [76: for example, the australian pro bono manual explicitly cites ‘reputation’ as a benefit of pro bono work. (australian pro bono centre and victoria law foundation, ‘the australian pro bono manual’ (2005) 1.4)] “lawyers are often branded with a reputation of arrogance and elitism. however, this does not stead well when those who are in need of legal help cannot access it, when [l]egal [a]id has been cut so drastically in the last 3 years. therefore, the english [l]egal[s]ystem relies upon [pro bono] work to not only erode this stereotype, but to show that lawyers and law students alike, can show compassion by working on cases for free.”[footnoteref:77] [77: essay 2] · skills ten of the students referred to skills development within their essays as a reason to undertake pro bono work.[footnoteref:78] both legal and personal skills can be developed as summarised below: [78: earlier research suggests that students valued the personal benefits of pro bono such as skills development. see mckeown, n.23, xxvii] “it allows [students] to develop vital, practical legal skills (eg. advocacy, legal research, interviewing), as well as other relevant ones such as personal organisation, presentation and teamwork (useful in a legal working environment)”[footnoteref:79] [79: essay 3] there is also a distinct overlap between the development of skills through pro bono work and other motivating factors. through the utilisation of lawyering skills, students are able to experience what it is like to work as a lawyer in practice,[footnoteref:80] to gain confidence that they have the requisite ability and provided validation for their chosen career path: [80: see also pam feinstein, ‘gain experience through pro bono’ (2012) 29:1 gpsolo 17; dina r. merrell, ‘pro bono, pro you’ (2001) 29:7 student lawyer 39] “the skills developed in [p]ro [b]ono legal practice are invaluable to the pursuit of a career as a practicing lawyer. almost every role within the front line services of the legal profession requires basic abilities in client and case management. the focus on techniques such as interviewing, legal writing, organisation, and management of the expectations of client qualify students perfectly to move forward in their legal career. not only does the development of such skills help undoubtedly benefit students going into practice, but in my own experience provides the confidence to embark on that course. i for one can say that prior to my experience in [p]ro [b]ono legal work [i] certainly [was not] confident in pursuing a career as a lawyer. however in developing these skills and confidence, and engaging in [first-hand] experience working as a trainee solicitor, albeit in a [p]ro [b]ono setting, verified the enjoyable and exciting nature a career as a lawyer presents.”[footnoteref:81] [81: essay 12] it is important that we do not under-estimate the role of the supervisor within the learning process. within the context of clinical legal education, cozens states that the ‘supervisor is possessed with the ability to place the student’s experiences into a coherent learning structure so that they make sense to the student.’[footnoteref:82] there is an appreciation of this from one student who states: [82: michael cozens, ‘clinical legal education: a student perspective’ (1993) 2 dalhouise journal of legal studies 201, 226] “pro bono volunteers are generally supported and supervised throughout their volunteering enabling them to receive feedback for self-development.”[footnoteref:83] [83: essay 5] this is further supported through students reflecting as an important part of this development: “[u]ltimately it provides an opportunity for students of law to reflect upon their own weaknesses and strengths, to better their own legal skills, to engage with real clients”[footnoteref:84] [84: essay 9] in enabling this self-development, there must be clear boundaries as to the role of the supervisor. cozens sets out two levels of supervisor intervention; the first is guidance thus allowing the student to act in the role of the lawyer and accept responsibility for that role; the second is direct intervention whereby the supervisor will replace the student’s control of the situation.[footnoteref:85] the latter intervention meant there is little educational value in the experience.[footnoteref:86] whilst the supervisor is important within the student’s educational development, the student must assume responsibility for their own learning. [85: cozens, n.82, 231-232] [86: ibid, 233] · experience as cited earlier, a significant motivating factor to undertake pro bono work is the experience of practise.[footnoteref:87] [87: see n.80] “the ideals of [pro bono] give students the fundamental opportunity to experience the expectations of a prospective lawyer”[footnoteref:88] [88: essay 11] there is also a perception that the experience afforded by pro bono work is different to any other experience a law student may have through their university career. the students stated that the practise of law is different to how it is taught in the classroom. further, the experience is more beneficial than work experience within a law firm as it is hands on. “there is a definitive difference between being taught the law and practicing the law. any opportunity in which you can use the knowledge you have been taught, and putting this in to practice, will always be beneficial. working on a [pro bono] basis is unlike any mini-pupillage or vacation scheme. you are not pushed aside and left to shadow the lawyers that are working on the case, but you yourself are involved. you have a legal duty to your client. you are responsible for your client. working a case on a [pro bono] basis creates a strong platform for a future legal career.”[footnoteref:89] [89: essay 2] “the bridge between the way the law is taught at an academic level and the way the law works in reality is a very important distinction for students. pro bono provides a degree of realism that no work experience can replicate, and is arguably a better introduction than anything preceding a [t]raining [c]ontract or [p]upillage.”[footnoteref:90] [90: essay 6] further, the students also perceive that pro bono work will help them stand out from the crowd. “to the careerist, it offers necessary work experience to compliment applications for training contracts and pupillages. with attrition rates for career progression being as gruelling as ever (most notably in the case of the bar), pro bono work offers the aspiring lawyer a chance to apply their academics to real problems. in the current recruitment climate, work experience and a commitment to the legal profession has become a pre-requisite, not a bonus. fortunately, pro bono work offers both, and is a valuable asset to any pragmatic law student.”[footnoteref:91] [91: essay 8] on a final note regarding experience, some of the students cited personal experience of engaging in pro bono work and the effect it has had on them. for example, one student stated: “having engaged with my [university’s] [pro bono] clinic…alongside volunteering at the citizens advice bureau, the importance and value of [pro bono] work for the modern day law student cannot be stressed enough. the benefits are two-fold, first and foremost, the wealth of experience that a student can gain through practical work is incomparable to that of regular modular studies, secondly, engaging with [pro bono] work whether through a clinic or indeed volunteering, not only has the ability to give a law student a humbling experience, but also an appreciation for the legal sector and perhaps further motivation for the students own career.”[footnoteref:92] [92: essay 9] the student goes on to state: “aside from the practical experience that [pro bono] work can provide, i believe it a great way in which to instil a sense of ethics and appreciation of the client-solicitor relationship from an early stage. both the [pro bono] clinic and the citizens advice bureau allowed me to engage with those who would not normally be able to receive legal advice and as a result, i was fortunate enough to experience the appreciation projected from those that i was helping.”[footnoteref:93] [93: essay 9] it is possible that this experience can be created through the provision of a university based law clinic as summarised by another student: “speaking as a product of northumbria university’s exempting law degree and [having] worked in their prestigious student law office the benefits of [p]ro [b]ono are benefits that i have experienced personally. my resounding support for [p]ro [b]ono legal work therefore comes from experience.”[footnoteref:94] [94: essay 10] · employability as discussed above, experience through pro bono work can also enhance employability. students made frequent references to the opportunity to build their cv: “pro bono work is invaluable to the cv of any law student, and is quickly becoming a necessity rather than an addition. it is not difficult to see why. pro bono work provides hands-on experience with real life clients, cases and legal processes. if a candidate can demonstrate a proven ability for the kind of tasks which would be assigned to them during employment, then half the battle is already won.”[footnoteref:95] [95: essay 1] further, another student considered the issue of pro bono from the perspective of potential employers and satisfying their own pro bono initiatives: “more and more law firms see the need for pro bono work and expect their lawyers to contribute. why wait until it’s expected of you? impress them by having made a start on your own initiative” whilst the students suggest that pro bono will assist them in securing employment, interestingly, graduate recruitment is also cited as a reason for law firms to have pro bono programmes. the law society of england and wales report that: ‘new graduates expect much more than just a healthy remuneration package and good career prospects; many law firms report that students being interviewed for vacation schemes ask detailed questions about their firm’s pro bono programme and the opportunities available to them.’[footnoteref:96] [96: the law society of england and wales, ‘pro bono manual: a practical guide and resource kit for solicitors’ (2016); see also australian pro bono centre, n.76 ] it appears that law firms, in part, will offer a pro bono programme to attract high-calibre graduates while students will undertake pro bono opportunities to secure employment. this suggests that pro bono capacity is potentially increased by both law firms and students desire to stand out to each other. · academic four of the students identified enhancing a student’s academic understanding of the law as a motivating factor to undertake pro bono work.[footnoteref:97] the theme of this motivation is that pro bono work improves their academic understanding of the law by placing it into context as shown in the quote below: [97: see mckeown, n.23, xxix. students also reported benefiting from a better academic understanding of the law] “academics have long discussed the ramifications of graduates that are technically sound in knowledge of the law itself and the procedural steps that accompany statute, but could not begin to understand the effects on a client of the application of said statute. for example, you may understand that an application can be made under section 33 of the family law act 1996 for an occupation order but until you have met the client who happens to be a victim of domestic violence, who fears for the safety of her children and understood how this application will affect this whole [family’s] life you cannot truly believe yourself to be educated in that area of law.”[footnoteref:98] [98: essay 10] there was also an appreciation from these students that the academic law can be different to the practical law with one student stating: “[although] it’s easy to get lost in the intricacies of implied terms and the construction of contracts, practical law is often very different to academic law. therefore, for the enthusiast, exposure to real cases and the ability to assist and advise both collaboratively and autonomously is an excellent learning tool and will invariably help cement essential legal principles in the context of tangible problems.”[footnoteref:99] [99: essay 8] · satisfaction personal and job satisfaction is often cited as a reason to undertake pro bono work. there is an inherent satisfaction in doing a good deed and doing a good job for someone. dinovitzer and garth report that engaging in some pro bono work provided a sense of satisfaction for respondents although more pro bono hours significantly decreased satisfaction.[footnoteref:100] this supports the notion that doing some altruistic work is beneficial but doing too much may have a negative impact on the individual. it is suggested that this negative impact may be as a result of too little paying work within the law firm or a ‘lack of fit’ between the pro bono and the business.[footnoteref:101] [100: ronit dinovitzer and bryant g. garth, ‘pro bono as an elite strategy in early lawyer careers’ in private lawyers and the public interest: the evolving role of pro bono in the legal profession (robert granfield and lynn mather eds. 2009),] [101: ibid] satisfaction was also cited and appeared to be a strong motivating factor by six of the students in their essays with one student saying: “law students are rewarded and paid in the sense of job satisfaction. the payment is the feeling you get knowing that you have been able to help someone. knowing that you are able to put what you have learnt in to practice. knowing that if you can successfully handle a [pro bono] case, you can be successful when you graduate”[footnoteref:102] [102: essay 2] further, one student reflects upon the often-perceived burden of pro bono work and the hardships faced by law students stating: “for those that live and love the law, pro bono does not burden the volunteer with having to work; it gifts them with getting to work. it allows the long hours spent in the library, the years of debt following extortionate professional qualification fees, and the mountain of extra-curricular obligations required to succeed as a lawyer to be mere afterthoughts for the student.”[footnoteref:103] [103: essay 8] whilst personal satisfaction may be a highly influential factor motiving students to undertake pro bono, the impact of the work must also be borne in mind. it must be remembered that students have other commitments, whether this be on their programme of study or outside of the university. further, any pro bono programme to complement the students’ studies and thus provide a fit and therefore maintain anticipated satisfaction. · networking/professional relationships pro bono programmes will often bring students into contact with other members of the legal profession. this contact can be categorised as a benefit to the student.[footnoteref:104] this may be due to collaboration between the university and an external law firm. alternatively, students may liaise with opposing lawyers in relation to their case. two students highlighted that pro bono work can result in the development of professional relationships although the perception was be of personal benefit to the student. whilst not explicit in the comment below, it is likely to mean that the student can utilise the contact to enhance future employment prospects for example: [104: harry s. margolis, ‘the elder law clinic’ in the elderlaw portfolio series release #43 (harry s. margolis, christine j. vincent. esq, and daniel waltz eds 2013) 1b-13 ] “[l]inks can be established with important legal organisations. as a law student, it is important to establish as many contacts as possible and pro bono work provides a fantastic opportunity to create meaningful relationships which may prove useful in the future.”[footnoteref:105] [105: essay 1] discussion limitations as with all studies, the conclusions of this study are subject to its limitations. in particular, this was a small-scale study considering the opinions of students based at a one university. it is likely that the students who participated in the study had a predisposition to pro bono and altruistic behaviour, thus were interested in the subject matter of the study. however, the incentive of a prize may have mitigated this factor and attracted the views of those individuals who are more extrinsically motivated. however, i suggest we can learn from the students and assist in the development of future pro bono programmes. student motivations the students who participated in this study clearly demonstrated mixed motivations for undertaking pro bono work. whilst many of the motivations were for personal benefit such as enhancing their skills, knowledge and employability, there was also recognition amongst all the students that pro bono work has wider social benefits including the promotion of access to justice and enhancing the community in which they live. one student expressed this as follows: “pro bono work operates to defend the vulnerable in society…[t]his alone means pro bono is well worth the time and effort for students, regardless of the useful personal skills and confidence they will also develop in the process.”[footnoteref:106] [106: essay 6] whilst another student stated: “you may be able to do some good, and that will be of benefit to you as well as society: we all have to play in social responsibility”[footnoteref:107] [107: essay 7] there is a link between the students cited motivations for undertaking pro bono work and adult learning theory. as such, there is a theoretical basis as to why the provision of pro bono opportunities in law schools will enhance student skills, legal knowledge and consequentially, employability. pro bono work is therefore an educational experience for the students. firstly, it is necessary to engage the students in the culture of pro bono work, recognising that the motivation for each student will be different. as such, perhaps there we should not isolate individual motivators but instead recognise the holistic nature of motivation. the andragogical model assumes that adults, when undertaking to learn something on their own, will invest considerable time into investigating the benefits of the activity.[footnoteref:108] as educators, we can draw the student’s attention to an array of benefits that they can evaluate and align with their own objectives. further, if a student opts to undertake pro bono work, they will feel a sense of autonomy thus aligning with the notion of ‘self-concept’.[footnoteref:109] knowles at al. state that ‘[t]he minute adults walk into an activity labelled “education,” “training,” or anything synonymous, they hark back to their conditioning in their previous school experience, put on their dunce hats of dependency, fold their arms, sit back, and say “teach me.”’[footnoteref:110] through engagement in pro bono activity, students are engaged in self-directed learning and less likely to resent or resist the learning activity. [108: malcolm s. knowles, elwood f. holton and richard a. swanson, ‘the adult learner: the definitive classic in adult education and human resource development’ (2012) 7th edn routledge oxon 63; see also frank s. bloch, ‘the andragogical basis of clinical legal education’ (1982) 35:2 vanderbilt law review 321 for discussion on application of adult learning theory to clinical legal education] [109: ibid] [110: ibid, 64] the pro bono experience in itself aligns with the androgogical model as the emphasis ‘is on experiential techniques – techniques that tap into the experience of the learners.’[footnoteref:111] students also develop a ‘readiness to learn’[footnoteref:112] because they are dealing with real life legal problems that require them to seek out and assimilate the relevant knowledge and skills. [111: ibid] [112: ibid, 65] adults also have a life-centred orientation to learning and therefore learn ‘new knowledge, understanding, skills, values and attitudes most effectively when they are presented in the context of application to real-life situations.’[footnoteref:113] assisting a pro bono client with a real legal problem will therefore assist student in acquiring legal knowledge and skill but also will influence their values and attitudes through exposure to new people and situations.[footnoteref:114] [113: ibid, 66] [114: for example, behre, n.50; maresh, n.24; schmedemann, n.24] finally, the most important motivators for adult learning are ‘internal pressures’ such as a desire for increased job satisfaction and self-esteem.[footnoteref:115] we can see that the students are exhibiting such motivation.[footnoteref:116] [115: knowles, n.108, 67] [116: see n.102 and n.103] the question then becomes how we capitalise on these motivations to instil a culture of pro bono and volunteering within the law school whilst providing a rewarding educational experience for the students. pro bono in law school as outlined above, adult learning theory means there is an educational basis for incorporating pro bono programmes in law schools. however, it is important that such programmes are well designed to engage students and achieve the desired outcomes. extrinsic motivation means that students are likely to engage with the programmes. the students value the skills development, the experience that they will acquire and, as a consequence the enhanced employability. the supervision of the programme and the students are important to ensure that students achieve the learning outcomes, and do not become merely observers but are responsible within the role of a lawyer creating an environment of autonomy and self-directed learning. it is also important that pro bono programmes expose students to new people from different backgrounds. intrinsically, students often value meeting strangers and this has the potential to create the ‘disorientating moment’. again, through guidance from their supervisor, students can reflect upon the situation, challenging their own perceptions of the world. through such self-examination, students can achieve ‘integration’ on the ‘taxonomy of human motivation’ and internalise thus an extrinsically motivated experience will hold intrinsic interest. conclusion we do not have the necessary evidence to draw any conclusions as to whether students will become intrinsically motivated to engage in public service after university as a longitudinal study would be required. however, on a theoretical basis, there is evidence to suggest that students can be extrinsically motivated to engage. through mere experience, some students may experience the inherent satisfaction of pro bono activity and therefore wish to continue. others however may ‘identify’ the personal importance of the activity through an appreciation of its application to their own life and career goals, thus beginning the process of internalisation. as educators we can guide our students through the reflective process, help them make sense of their experiences and integrate the pro bono experience with their sense of self. whilst the students are still extrinsically motivated, the perceived locus of causality will become more internalised thus, hopefully, instilling a continuing commitment to pro bono work in the future. there are numerous reasons why students may wish to undertake pro bono work whilst at law school. of these, experience is a highly influential factor as it not only provides a strong extrinsic motivation to participate in pro bono work initially, but the pro bono experience may also facilitate a deep intrinsic motivation to continue with the work into the future. through experience, students can develop skills and improve their employability but they can also feel the inherent satisfaction of helping others and making a difference. the development of pro bono initiatives in law schools benefits students personally and the students recognise this. pro bono schemes will also benefit the community through the assistance offered by the students whilst engaging in the programme. as such, the university may also benefit from an enhanced reputation amongst the student body and the wider community. as a consequence of providing pro bono programmes, students may reflect upon their experience and assess their own values and attitudes towards society, which may have a transformative impact upon their lives and their continuing participation in such as activity. however, to achieve this, the students must be provided with not only the experience but also the ability to reflect upon that experience. amotivation interest/enjoyment inherent satisfaction extrinsic motivation intrinsic motivation external regulation salience of extrinsic rewards or punishments; compliance/reactance introjection ego involvement focus on approval from self or others identification conscious valuing of activity self-endorsement of goals integration hierarchical synthesis of goals congruence external somewhat external somewhat internal internal internal regulatory style associated processes perceived locus of causality perceived non-contingency low perceived competence nonrelevance nonintentionality impersonal 80 633 a client-focused practice: developing and testing emotional competency in clinical legal interviews felicity wardhaugh, colin james felicity wardhaugh university of newcastle newcastle australia felicity.wardhaugh@newcastle.edu.au felicity wardhaugh and dr colin james are both solicitors and lecturers and teach on the professional program (plt) at the university of newcastle as well as the llb program 634 international journal of clinical legal education issue 20 introduction law students learn interviewing skills as part of their clinical legal education. teaching this skill to students involves helping students relate to clients. recent suggestions for teaching students have included adopting a client centred approach to legal interviewing.1 similarly, in the face of growing concerns about the adversarial culture of lawyers there have been calls for lawyers to develop relationship-centred competencies.2 typically, law students attending law schools are in their early twenties and, in terms of experience and developmental capacities, many may not be at a stage where thinking about the client comes naturally.3 students interviewing clients tend to ignore visual or spoken clues from the client. a law student, observed by one of the authors, recently demonstrated this tendency whilst interviewing a client at the university of newcastle legal centre (unlc). the client’s gaunt physical appearance made it clear that the client was unwell. the student took instructions for a will without asking any questions about the client’s motivation for seeking legal help. it later transpired that the client needed advice about a terminal illness claim. if law students can learn how to improve their emotional competency whilst interviewing a client, they may relate better to clients in a clinical legal setting and be able to obtain more relevant information.4 we have found no recent research in the discourse on clinical legal education as to whether training in emotional intelligence can improve law students’ performance in a client interview. at the university of newcastle we have designed a research project to test whether training students in emotional competence (applied emotional intelligence) can produce a measurable change in the client’s experience of a legal interview. one of the major challenges in researching this question is the lack of guidance in the literature as to how best to train law students for emotional competence. many publications have focused on the validity or measurement of emotional intelligence and less on the functional aspect of how to increase emotional competencies. part of the research project therefore involves designing a training program to assist clinical law students to develop emotional competencies. this paper is in two parts. the first part discusses the background to the research and some preliminary findings from stage one of the research. the second part discusses a proposed outline for the training program. 1 binder et al, lawyers as counsellors: a client centered approach (west thomson 3rd ed, 2011). 2 susan l brooks & robert g madden (eds), relationship-centered lawyering: social science theory for transforming legal practice (carolina academic press, 2010). 3 research by deborah yergulun todd, for example, using brain scans has found that adolescents use a different part of their brain (amydala) and not the pre-frontal cortex when appraising emotions. whilst her focus is on children she notes that changes in the brain occur until the early twenties see deborah yergulun todd 17(2) ‘emotional and cognitive changes during adolescence’ current opinion in neurobiology 251. 4 marjorie a. silver,’ emotional intelligence and legal education’ (1999) 5 psychology public policy and the law 1173. 635 a. background and preliminary research findings 1. history and terminology the interdisciplinary nature of much of the discourse on emotional intelligence makes it difficult to identify a commonly accepted definition. in addition, early claims made about emotional intelligence were not supported by empirical data.5 this is likely to have made the concept of ‘emotional intelligence’ unattractive to legal educators. for the purposes of legal education, more helpful terminology is to describe the process of becoming emotionally intelligent as the acquiring of “emotional competencies”. the emergence of the concept of emotional intelligence can be attributed to many different sources. many accounts start in the 1920s with edward thorndike, who identified what he called ‘social intelligence’ skills.6 in the 1980s, the psychologist howard gardner developed a theory of multiple intelligences that included what he called ‘interpersonal’ and ‘intrapersonal’ intelligences.7 in the 1990s, psychologists peter salovey and john mayer took the research further. they identified ‘emotional intelligence’ and developed a tool to measure it.8 their ideas took hold in popular literature when daniel goleman, psychologist and journalist, made claims that ‘emotionally intelligent’ people were more likely to be successful in life.9 from its base in psychology, the literature on emotional intelligence has grown significantly in a number of disciplines. a 2012 review in the medical discipline found 1,947 articles on emotional intelligence.10 in the mid-1990s the debate in the literature focussed on whether emotional intelligence had any discrete validity that could be distinguished from general mental ability (gma) or personality differences.11 many publications assumed either that emotional intelligence was a trait or an ability. the trait approach has been criticised on the basis that assessments of trait emotional intelligence may not be distinguishable from assessments of personality factors.12 if emotional intelligence were a “trait” then it may not be possible to ‘develop’ it, or change how a person experiences, perceives or engages with emotions in themselves or others. there are studies, 5 for a comprehensive discussion on these issues see kevin r murphy (ed) a critique of emotional intelligence, what are the problems and how can they be fixed (lawrence erlbaum associates, 2006). 6 thorndike e., ‘intelligence and its uses’ (1920) 140 harper’s magazine 22; for a detailed history see frank j landy, the long, frustrating, and fruitless search for social intelligence: a cautionary tale in ibid, ch 4. 7 howard gardner, frames of mind: the theory of multiple intelligences (basic books,1983). 8 the test has been refined and the latest version is version 2.0 see john d mayer et al, ‘measuring emotional intelligence with the msceit v2.0’ (2003) 3 emotion 97. 9 d goleman, emotional intelligence: why it can matter more than iq (blooomsbury, 1996). 10 m. gemma cherry et al, ‘what impact do structural educational sessions to increase emotional intelligence have on medical students?’ (2012) 34 medical teacher 11. 11 m davies, l stankov and r d roberts ‘emotional intelligence: in search of an illusive construct (2008) 75 journal of personality and social psychology 989. 12 m zeidner, g matthews and r d roberts, what we know about emotional intelligence: how it affects learning, work, relationships, and our mental health (mit press, 2009). a client-focused practice: developing and testing emotional competency in clinical legal interviews 636 international journal of clinical legal education issue 20 however, which suggest that training in emotional intelligence can lead to increased emotional competencies.13 in seeking to find ways to develop and measure emotional competency in legal interviewing, the authors adopt the ‘ability’ model. the ability model is described by salovey and mayer: ‘the ability to accurately perceive emotions, to access and generate emotions so as to assist thought, to understand emotions and emotional knowledge, and to reflectively regulate emotions so as to promote emotional and intellectual growth’.14 2. why the time is right to start teaching emotional competencies to law students the australian government is currently developing a new higher education quality and regulatory framework, which includes the establishment of the tertiary education quality and standards agency (teqsa). as part of this process, the notes for the development of threshold learning outcome 6 on self-management state: legal employers have identified the need for graduates to have emotional intelligence – the ability to perceive, use, understand, and manage emotions. the tlos encourage the development of emotional intelligence by attending to both self awareness (tlo 6) and the need to communicate and work with others (tlo 5).15 in the field of clinical medicine, a review found that measures of emotional intelligence correlated with many of the competencies that the modern medical curricula seek to deliver.16 these include the ability to provide more compassionate and empathetic patient care, greater capacity to cope with organisational pressure and enhanced communication with patients. similar competencies are necessary for the developing legal practitioner and are qualities expected in clinical law students.17 legal educators in the us have begun to acknowledge the value of emotional competencies in legal practice and have incorporated discussion about emotion into negotiation training.18 a us 13 nicola s schutte, john m malouff and einar b thorsteinsson, ‘increasing emotional intelligence through training: current status and future directions’ (2013) 5(1) the international journal of emotional education 56; for a finding that training in emotional intelligence results in better patient care see for example h c weng et al ‘doctors’ emotional intelligence and the patientdoctor relationship’ (2008) 42 medical education 703 and for a comprehensive analysis in the medical field see above n10. for findings that emotional intelligence results in better student outcomes in schools see the meta analysis conducted by durlak et al, ‘the impact of enhancing students’ social and emotional learning: a meta-analysis of school-based universal interventions’ (2011) 82(1) child development 405. 14 j d mayer , p salovey, and d r caruso, ‘emotional intelligence: theory, findings and implications’ (2004) 15 journal of psychological inquiry 197, 197. 15 see discussion by anna huggins, sally klift and rachael field, ‘implementing the self management threshold learning outcome for law: some intentional design strategies from the current curriculum toolbox’ (2011) 21(2) legal education review 183. 16 arora et al, ‘emotional intelligence in medicine. a systematic review through the context of the acgme competencies’ 2010 (44) medical education 749. 17 for example, the theoretical framework for best practice in clinical legal education is described as including the ability to develop student emotional skills, their confidence, selfesteem and an ability to sensitise students to the importance of client relationships see <http://www.cald.asn.au/assets/lists/resources/best_practices_ australian_clinical_legal_education_sept_2012.pdf> 18 peter reilly teaching law students how to feel: using negotiations training to increase emotional intelligence (2005) negotiation journal 301; roger fisher and daniel shapiro, beyond reason: using emotions as you negotiate (2005, viking). 637 legal educator who suggests that emotional intelligence should be taught in law schools observes: ‘without great cost or even restructuring the standard law curriculum it can be easily incorporated into legal education. social science research on emotional intelligence has matured to the point that its usefulness is becoming clearer’19 in addition, interest has been growing in helping law students develop their emotional competencies as a way to manage their law school experience and to protect their own wellbeing. this response arises from research in both the us and australia suggesting that law school can be detrimental to law students’ mental health.20 3. the current research project the research is being conducted at unlc. the research project was submitted for human research ethics evaluation and approval was obtained on 25 october 2012.21 the unlc is a community legal centre funded by the university of newcastle which, as well as helping those people with limited financial means or dealing with matters of public interest, teaches clinical skills to students enrolled on the university’s legal professional program. the professional program is an accredited practical legal training program (plt). if students complete the plt program then they gain eligibility to obtain a certificate to practice as a lawyer. the program involves students undertaking 360 hours of professional placement and learning clinical skills in the classroom through practical legal modules. the participating students enrolled on the profession program are senior students in the last 2 years of their studies. as part of their placement, law students on duty at the unlc interview almost all clients who attend the centre’s drop-in clinic as a precursor to working on the clients’ legal problems under the supervision of unlc solicitors. at present the students receive one day of induction training prior to conducting interviews with clients and this induction training is along traditional lines borrowing from standard legal texts on interviewing and includes seminar instruction and role-plays. the emphasis is upon listening, summarising, open/closed questioning, problem identification and fact finding. the format of a standard live client interview at the unlc involves a student or a small group of students, greeting the client, taking them to an interview room, explaining the process (including that the interview is confidential and that the service is pro bono) and then spending time with the client asking them about their problem. the student then leaves the client in the interview room for about 10 minutes to discuss the problem with a supervising lawyer, after which the lawyer and the student return to provide the client with legal advice. 19 john e montgomery, ‘incorporating emotional intelligence concepts into legal education: strengthening the professionalism of law students’ (2008) university of toledo law review 325. 20 krieger,l.s “institutional denial about the dark side of law school and fresh empirical guidance for constructively breaking the silence’ (2002) journal of legal education 52; m townes o’brien, s tang and k hall, ‘no time to lose: negative impact on law student wellbeing may begin in year one’ (2011) 2(2) the international journal of the first year in higher education 49. 21 university of newcastle human research ethics committee, approval no. h-2012-0368. a client-focused practice: developing and testing emotional competency in clinical legal interviews 638 international journal of clinical legal education issue 20 4. research methodology overview the purpose of the research project is to determine whether students who have been trained in emotional competencies perform better in the initial legal interviewing process (described above) than students who have not received the training. the research design involved three stages: a pilot stage in late 2012, a ‘control group’ in stage one in early 2013 (which has been completed at time of writing) and an ‘intervention group’ in stage two which is designed for the first half of 2014. clients assess student performance in the interviews using short questionnaires, which involve the collection of quantitative and qualitative data. in addition, students and supervisors complete similar questionnaires to enable some triangulation of results. the quantitative data involves asking each participant to record a response to a statement using a simple scale of 1 – 5 (‘likert’). the collection of qualitative data is through open questions on the surveys inviting more detailed responses than can be provided in the short likert questionnaires. our questionnaire design, for stages one and two, was informed by two sources: the ‘standardized client’ research by barton et al (2006) and the care questionnaire developed by mercer et al (2004).22 further refinements were enabled by the results obtained in the pilot stage with an early version of the instrument completed by 12 clients. the barton standardised questionnaire was based on existing research about legal interviewing and was designed simply to ‘reinterpret the ‘do’s and don’ts’ of good interviewing’.23 we used the essence of questions from this questionnaire, designed to test rapport creation and information exchange between the client and the student interviewer. the care questionnaire comes from the medical field, and was designed to measure patients’ responses to interviews by medical practitioners, specifically, whether an interviewer was “patient centered”. one credential of the care model was its testing across a diverse population from backgrounds of socio-economic deprivation to those of more affluent people. in our case, the majority of clients who attend the unlc advice clinic are from a low socio-economic background. 5. the pilot the pilot involved survey responses from 12 clients, 25 students and 4 supervisors and was conducted at the unlc legal advice clinic on 31 october 2012. the pilot responses from the clients indicated significant ‘participant bias’. we anticipated that the clients would be positive in their responses, as reported in the barton et al research where live clients ‘gave very positive responses to all the items’.24 however, our pilot clients were overwhelmingly positive in their responses to the student interviews, which made it difficult to 22 k barton et al, ‘valuing what clients think: standardized clients and the assessment of communicative competence’ (2006) 13(1) clinical law review 1; s w mercer et al, ’the development and preliminary validation of the consultation and relational empathy (care) measure: an empathy-based consultation process measure (2004) 21(6) journal of family practice 699; mercer et al, ’relevance and practical use of the consultation and relational empathy (care) measure in general practice’ (2005) 22 (3) the journal of family practice 328. 23 above n 22, 36. 24 above n 22, 27. 639 distinguish and interpret useful information from the data. consequently, we made changes to the questionnaire including an additional qualitative question to invite the clients to think more critically about the interview by asking them to suggest ways the students might improve. we also added a brief explanation to each likert question. the refined questionnaire had 8 quantitative questions and 2 qualitative questions. a copy of the client questionnaire forms annexure “a” to this paper. 6. stage one of the research stage one was conducted during each advice clinic at the unlc on every wednesday morning between 10 april 2013 and 29 may 2013 (8 weeks). a research assistant spoke with the students and invited them to read the participant information statement (pis) and, subject to agreement, to participate in the project by completing the short questionnaire after each client interview. the research assistant also spoke with the supervisors and clients, inviting each client to consider participating. during the research period, 116 clients, 52 students and 4 out of the 6 potential supervisors participated (the remaining supervisors are the authors). of the client responses, 15 responses were not counted for the preliminary results leaving 101 results. two of the 15 responses were not counted because the client did not record any answer at all. the remaining 13 were not counted because the client just circled the same answer and provided no qualitative feedback to suggest they had thought about their answers. 7. preliminary quantitative results of stage one despite the changes to the questionnaires, the stage one clients were very positive when reporting their experience of the interview. for example, in five out of the eight questions, the clients mostly responded as “agree” or “strongly agree” and rarely strayed into the negative or “unsure” categories. for this reason, the answers to questions 3 and 4 stand out because some clients recorded that they “disagreed” with the statements. question 3 asked whether the student had accurately summarised the story from the client. question 3 was “reverse oriented” (ie contrary to all other statements in the questionnaire a positive response required the client to “disagree” or “strongly disagree” rather than “agree” or “strongly agree” and it may be that some respondents failed to appreciate this. question 4 read: 4 the law student was interested in me as a whole person (asking/knowing relevant details about your life, your situation; not treating you as “just a number”) in our view, the key preliminary quantitative result from the client questionnaire is that the clients felt that the quality of their interview with the students was good however just over 10% disagreed or were unsure that the law student was interested in the client as a “whole person” and just over 10% disagreed or were unsure that the student had demonstrated asking/knowing relevant details about the client’s life or situation. a client-focused practice: developing and testing emotional competency in clinical legal interviews 640 international journal of clinical legal education issue 20 8. qualitative results of stage one the questions directed at the clients were: “please use the space below if you would like to explain how the student could improve upon their interviewing skills” and “please use the space below if you would like to explain any of your answers to the questions on the survey”. 58 clients chose to answer one or both of the qualitative questions. some of the answers were discounted as not useful because they were directed at the format of the questionnaire and not the client’s reaction to the interview process. 27 responses provided positive feedback such as: i think they did well i had a very difficult situation and they were very calm and patient and helpful our preliminary analysis reveals three common themes in the responses: those which discussed the importance of “listening” (12), those in which the client stated that their matter was “complex” (4) and those who made references to the concept of an emotional connection (9). examples relating to the emotional connection included the following comments: did not really get to a real human level as did not discuss family issues at this time the students did not ask if everyone was ok. the students seemed keen to help, just a bit distant, hopefully this is helpful this is a speeding fine case, i would be alarmed if the students were overly compassionate and interested in me as a person. a certain level of “detachment” is required to maintain professionalism one interesting response from a student interviewing a client about a will (not the same matter used in the example in the introduction) was: due to the nature of the matter we couldn’t ask detailed and sensitive questions a supervisor reported: the first thing the student said to me was “this client is nuts”..she wasn’t just very passionate and their whole demeanour was “what’s this client on about?” 9. summary of part a overall, the quantitative and qualitative results to date suggest that there is room to improve the quality of the interaction between a law student and a client in a live client interview. as discussed above, in seeking to improve the quality, we aim to train law students to develop emotional competencies and to see whether the training can make a difference to the stage two results. stage two will involve asking clients, students and supervisors to answer the same questionnaires in 2014 but after the students have received emotional competency training. 641 b. training for emotional competency in a live client interview – how much training and what training should the students receive? 1. the amount of the training the teaching of law continues to have a content focus.25 it is difficult to find space in the curriculum to add skills and abilities training. however, research suggests that improvements can be achieved within modest time frames. a small study in empathy training carried out by john barkai and virginia fine written up in 1982 suggests that 4 hours of training made a difference in the rating responses for empathy between a control group and a trained group of law students.26 in the medical context, 14 studies demonstrated a link between training and improvement in emotional intelligence and these involved training periods of between 4 to 30 hours.27 based on this research, the authors believe that a 10 hour training module made up of 8 hours of face-to-face training and 2 hours of reading and reflective activities is sufficient for the purposes of improving student competency. 2. the characteristics of the training students will not be receptive to gaining competency if they see no relevance to the training. thus, whilst ideas can be obtained from other disciplines, the context must be changed. there is a risk of demoralising students if they cannot adjust to the skills training or feel that their abilities are being judged as sub-standard. academic success at law school does not involve assessment of emotional competency and some students who are used to obtaining high marks may feel challenged if they feel they are not excelling immediately. a small qualitative research study from ireland justifies these concerns. the study set out to answer the question why students choose not to avail themselves of emotional competency coaching and includes this response about results of testing for emotional competency: “i’m kind of afraid” and “i didn’t want to go back in case it was really low”:28 to avoid the risk of demoralisation, the “public face” of the training should foster collaborative learning where students work in pairs or in groups and the teacher must be able to encourage noncompetitive behaviour when leading discussions. group discussions both in small groups and with the whole class are extremely important. 25 plt “areas of knowledge” are listed in the fifth schedule of the legal admission rules 2005 (nsw) and there are “core” subjects which must be taught as part of a law degree if students are to gain eligibility for legal practice see schedule 1, law admissions consultative committee uniform admission rules <http://www1. lawcouncil.asn.au/lacc/images/pdfs/212390818_1_laccuniformadmissionrules2008.pdf> 26 the study tested students before and after training using the truaux accurate empathy scale and found that students increased their scores after training, john l barkai and virginia o fine, ‘empathy training for lawyers and law students’ 13 (1982-83) southwestern university law review 505. 27 above n10. 28 aiden carthy et al, ‘reasons for non-engagement with the provision of emotional competency coaching: a qualitative study of irish first year undergraduate students’ 2012 (4) all ireland journal 75. a client-focused practice: developing and testing emotional competency in clinical legal interviews 642 international journal of clinical legal education issue 20 emotions are to some extent “socially determined”29. there is real value in students learning from each other and from the lecturers in the classroom through discussion.30 apart from the teaching of the theory of emotion and emotional intelligence, the training module should not involve didactic teaching but should aim to transform the students’ frame of reference. the training should build on the students’ first impressions of working with live clients or any similar experience and their capacity to try out what they are learning inside and outside the classroom. 3. the four key domains based on the mayer and salovey ability model described above, there are four key domains or “branches” to seek to improve: understanding emotion, identifying emotions in oneself and others, expressing and using emotions and managing emotions. these are discussed below as separate components but in reality the concepts merge into each other. 4. the introduction to the module and understanding emotions it is important to explain to the students at the outset why they should acquire emotional competency. students trained almost exclusively to “think like a lawyer” need a cognitive frame of reference first. a university is well placed to introduce cross-discipline training. students should receive didactic teaching from a lecturer skilled in psychology to introduce students to the theories of emotions. further explanation can include a wide -ranging discussion from law lecturers about the emergence of the study of emotion and why it is important for lawyers. it should also include discussion about the knowledge of the brain and the role of emotion in decision-making.31 students need to understand what causes emotion and how emotions may appear in clients. they need to learn that emotions are fleeting, changeable, overlap and can be deceptive. for example, an angry client may be a frightened client. in australian high schools, for example, where aspects of emotional intelligence are already being taught, the curriculum on understanding emotion teaches the causes and consequences of a wide range of emotions and the ability to label emotions.32 5. identifying emotions in others this skill includes ‘paying attention to and accurately decoding emotional signals in individuals’.33 a helpful way to train students to identify emotions at first instance is through the use of video 29 david r caruso, ei tests emotional intelligence <http://www.emotionaliq.org/test.htm> 30 n clarke, ‘developing emotional intelligence abilities through team based learning’ (2010) 21 human resource development review 119. 31 for a good discussion see richard roche ‘learning and the brain’ in paul maharg and caroline maughan (eds) affect and legal education : emotion in learning and teaching the law (farnham: ashgate, 2011). 32 marc a brackett et al, ‘enhancing academic performance and social and emotional competence with the ruler feeling words curriculum’ (2012) 22 journal of learning and individual differences 218. 33 peter k. papadogiannis, deena logan, and gill sitarenios ‘an ability model of emotional intelligence: a rationale, description, and application of the mayer salovey caruso emotional intelligence test (msceit)’ in james d a parker, donald h saklofske and con stough (eds) assessing emotional intelligence theory research and applications (springer, 2009). 643 rather than a written scenario. it is now relatively easy to make good quality videos for use in the classroom. video clips of actors (who are used to displaying emotion) portraying legal clients can be filmed for use in class. questions generated from these video clips can help strengthen students’ observational skills. group observation sheets can guide student observation. for example, which emotions is the client definitely not feeling? which emotions is the client more likely feeling? is the client displaying conflicting emotions? a video of an actor simulating a client verbally expressing one emotion but displaying another could also encourage observational and listening skills. 6. identifying emotion in oneself -enhancement of emotional self awareness students need to become a good observer of their own feelings, to ‘accept and value them, and to attend to what those feelings might signal’.34 research in psychology helps identify the physiological changes that take place when different emotions are experienced and these changes can be taught to students to help them recognise their own emotions. in addition to the recognition of emotions, self-awareness should also include ‘knowing one’s own values, biases, motivations and attitudes towards others and situations’.35 self-awareness is best achieved through short reflective activities in class and through a journal or self-reflection exercises outside the classroom. students should be provided with appropriate guidance to practice the skill of self-reflection.36 some excellent reflective journal prompts used in nurse education can be adapted for legal clinical practice.37 7. expressing and using emotion using emotions involves “harnessing the effects of emotions”.38 how a person feels can influence how a person thinks, how they remember what was said and how they make decisions. students need to learn how to match emotions to the “task at hand” and to recognise when might be the best time for a client to make certain types of decisions and when is the right time to ask the client more questions. this ability can be practiced by students through role-plays and outside the classroom as material for their reflection journals. 8. managing one’s own emotion if students can recognise their own emotions then students can learn strategies to self manage. strategies can include cognitive exercises. “thinking” strategies include being able to recognise the sensation of emotion and to experiment with ways to maintain or “reframe” feelings. the concept 34 board of trustees of the university of illnois (2007) <http://www.counselingcenter.illinois.edu/self-helpbrochures/self-awarenessself-care/experiencing-and-expressing-emotions> 35 kim foster and heather mckenzie, educational approaches and activities to enhance ei in john hurley and paul linsley (eds), emotional intelligence in health and social care, a guide for improving human relationships (radcliffe publishing, 2012), 127. 36 anna huggins, sally klift and rachael field, implementing the self management threshold learning outcome for law: some intentional design strategies from the current curriculum toolbox (2011) legal education review 21. 37 paula a harrison et al, ‘reflective journal prompts: a vehicle for stimulating emotional competence in nursing’ (2010) journal of nursing education 644. 38 nicola schutte et al, increasing emotional intelligence through training: current status and future directions (2013) 5(1) the international journal of emotional education 56, 56. a client-focused practice: developing and testing emotional competency in clinical legal interviews 644 international journal of clinical legal education issue 20 of “mindfulness” which comes from positive psychology fits nicely with selfmanagement because it involves training to notice and to self -regulate emotion.39 9. managing other people’s emotions students need to learn how to respond to client’s emotions and how to anticipate emotional behaviour. using the video clips and stopping the videos to ask the students “what would you say next to the client?” allow students to start thinking about these management issues. in addition, groups of students can be invited, for example, to think about a particular case study and to develop a strategy for interviewing the client which they can share with the class. as part of the process, students should be asked to think about what the client might be feeling and what it is like to be the client, and what sort of questions they might ask the client based upon those reflections. the class can later brainstorm the ideas generated and to reflect on how to approach a client in a similar situation in the future.40 barkai and fine provide useful detail for the type of discussion, which can take place between a lecturer and the students.41 there is some helpful literature for students to read (as part of their work outside the classroom) which might start students thinking about the client’s presentation, feelings, concerns and motivations when consulting lawyers.42 inviting social workers or lawyers (who have first-hand knowledge of clients and their feelings) into the classroom to explain to the students what it might feel like to be the client in a case study would add some realism to the discussions. 39 see seligman and csikszentmihalyi, ‘positive psychology, an introduction’ (2000) 55 american psychologist 5; m k rasmussen and a m pidgeon ‘the direct and indirect benefits of dispositional mindfulness on self esteem and social anxiety (2011) 24 journal of anxiety stress & coping 227; s l keng et al. ‘effects of mindfulness on psychological healtha review of empirical students’ (2011) 31 clinical pscyhology review 1041. 40 an idea discussed in helen o’sullivan et al ‘integrating professionalism into the curriculum, ammee guide no 61’ 2012 (34) medical teacher e64, e68. 41 above n 26, 525-526 42 tamara relis, ‘it’s not about the money!: a theory on misconceptions of plaintiffs’ litigation aims’ (2006) 68 university of pittsburg law review 701; gillian k hadfield, ‘framing the choice between cash and the courthouse: experience with the 9/11 victim compensation fund’ (2008) 42 law and society review 645; nieke e elbers et al, ‘exploring lawyer–client interaction a qualitative study of positive lawyer characteristics’(2012) 5(1) psychological injury and the law 89, hilary sommerlad, english perspectives on quality: the client-led model of quality – a third way?(2000) 33 university of british columbia law review 491; g gellhorn ‘law and language: an empirically based model for the opening moments of client interviews’ (1998) 4 clinical law review 321. 645 conclusion law students need to learn how to be effective interviewers as part of their legal training. students will be more effective if they can relate well to clients. teaching students how to improve their emotional competency is likely to be an important part of this process. the research project described above and underway at the university of newcastle is positioned to help answer questions about how to train for emotional competency and whether such training can improve student emotional competency. the authors hope that their work will ultimately make a small contribution to the design of teaching programs for law students and look forward to sharing further insights after stage two of the research in 2014. a client-focused practice: developing and testing emotional competency in clinical legal interviews 646 international journal of clinical legal education issue 20 reflection – teaching and learning in clinic the stories clinicians tell stefan h. krieger[footnoteref:1] [1: *professor of law and director emeritus of clinical programs, maurice a. deane school of law at hofstra university. i wish to thank theo liebmann, serge martinez, and rick wilson for their guidance and assistance. i especially express my appreciation to maxim tomoszek and palacký university for their invitation to speak at their conference, complex law teaching: knowledge, skills and values. ] hofstra university, usa introduction unbelievably, it has been more than 15 years since i last visited palacký during the inaugural year of its clinic. so, in preparation for today’s talk, i thought i should go back to my files to refresh my memory of events a decade-and-a-half ago. as i reviewed those documents, it struck me how the events of that time were much more complicated than i initially remembered. in fact, i saw how my retelling of the events reflected in those papers could be constructed – with appropriate spin -into different stories -some of which could be dramatically divergent from others. when we teach our students legal storytelling, we show them how lawyers can filter out certain details in their cases and focus on others to craft a compelling narrative for one party or the other. using this approach in describing my palacký clinic file, i could tinker with the evidence in it and craft multiple narratives. so to begin my presentation at this conference, i thought that instead of addressing complex law teaching in the abstract, i would start more concretely -to tackle the subject by sharing with you two very divergent tales that can be woven about the establishment of the palacký clinic. perhaps consideration of these stories will help to give us some insights on the problems faced in addressing the difficult issues raised by complex law teaching. so let us begin this morning’s story hour with my first narrative: i entitle it, clinical education comes to central europe: hofstra’s and palacký’s partnership in training law students in the practice of public interest law. our narrative begins after the 1989 velvet revolution when palacký’s rector josef jarab sought to establish a law school at the university to train a new generation of lawyers for practice in a democratic legal system dedicated to the rule of law. soon thereafter, rector jarab fortuitously met hofstra professor richard neumann at a conference in new york, and a fruitful relationship was created between hofstra school of law and palacký. five years later, the two schools began to explore the development of a clinical program at palacký. seeking funding for the new project, the schools jointly applied for a ford foundation grant to establish a live-client housing rights clinic, patterned after my own clinic at hofstra. in the united states in the 1960s, ford had been instrumental in spearheading efforts to integrate clinical education into mainstream law school curricula. now, thirty years later, it was hoped that ford would assist the development of clinical education in law schools in the newly democratized eastern bloc. with the overall goal of helping democracy succeed in the czech republic, the grant application listed four goals: i) to demonstrate to citizens on the ground in the czech republic that concrete actions using the legal mechanisms of a democratic state could lead to the rule of law; ii) to train students in the importance and skills of practicing law in the public interest; iii) to create a model law school clinic, which other law schools in the region could emulate to expand the training of public interest lawyers; and iv) to heighten the legal consciousness of government officials, present and future. ford approved this application, and in early 1996, this ambitious project began. pursuant to the grant, palacký hired an experienced olomouc commercial law attorney as a clinical teacher to establish the clinic. early in 1996, she visited my clinic to learn methods of clinical teaching and observe my students in action handling cases -in the law office and courts. returning to olomouc, this clinician established a clinic in fall, 1996. palacký created a law office with its own computer with internet access. ten students enrolled in the clinic and enthusiastically began to work on a variety of cases -an eviction case by a landlord who wanted to have his daughter live in the flat; a marital dispute over the right to a flat; a town's attempts to evict a tenant. for these cases, students interviewed clients, drafted memos, and wrote letters to clients and adversaries. based on her experiences at hofstra, the clinician developed creative seminar classes focused on ethical issues and client relationships. in these seminars, students also had the opportunity to engage in simulated arguments of court cases. in fall, 1996 and then spring, 1997, i visited the clinic. i was deeply impressed with the students’ commitment to their clients and their command of the cases. the clinician was a natural teacher and had a warm relationship with her students. i had some good meetings with the dean and other law school administrators, imbibed slivovitz (your wonderful plum brandy) with them, and shared my thoughts about the program. while ford decided not to refund the program, the work of that year laid the foundation for the vibrant clinical program now existing at palacký under the wonderful leadership of maxim tomoszek. now let me tell you my second yarn: the bumpy road: unrealistic expectations confront a newly democratic legal system. this story begins much the same as our first tale -the development of the relationship between hofstra and palacký; the application to ford and its approval; and palacký's hiring of a clinician. at this point, however, the two narratives diverge quite dramatically. the grant was approved, and in early 1996, the palacký clinician visited my clinic at hofstra. she enjoyed the seminar component of the class and supervisory sessions with the students. but she was very frustrated with the court appearances. my students' cases were in several courts -lower state trial courts and federal court. but every time, after the students prepared for a hearing, when we appeared in court, after hours of waiting, the cases were adjourned to another date. as her stay in the united states concluded, she stopped going to court hearings questioning the benefit of all this student preparation with the only payoff being delay. in fall, 1996, the clinician started the palacký clinic with ten students and eventually each two-student team had one client to represent. when i visited olomouc in december, 1996, i was very impressed with the students' commitment to their clients and the clinician's talents as a teacher. i did, however, express two concerns: (1) the law school had made no attempt to obtain approval for student practice in the courts; and (2) no referral network had been created for developing a stream of low-income clients for the clinic. as to the first issue, the law school responded that the czech bar and courts were strongly resistant to any student practice. in regard to the second issue, the clinician said she was attempting to get more cases referred. all in all, though, as i returned home, i felt fairly positive about the prospects for the clinic. but when i returned in may, 1997, i got a different feeling. very few new cases had been taken. in all my meetings with students, they were still enthusiastic about the first opportunity in the words of one student, "to feel like a lawyer," but they were very frustrated with the fact that the clinic had so few cases and that they could not argue in court. many of the students and the clinician emphatically told me they wanted to be able to accept cases from any possible client, not just poor people. while my meetings with the administration five months earlier had been upbeat, this time around, the mood was cordial but cool. while i continued to applaud the clinician’s teaching methods and seminar classes, i expressed dismay at the lack of movement on the issues of student practice and the development of referral resources for needy clients. the administration was adamant that both the czech bar and judiciary were dead set against student practice and that the limitation on the types of clients which could be accepted by the clinic only stood in the way of the development of a vibrant clinical program. i kept referring to my experiences in america. and the response could be encapsulated by the comment of one of the participants at the meeting, “in the czech republic, things must be gradual.” i reported to ford, and the foundation decided to terminate the grant. ************** i am not relating these two stories to you because i believe one is more truthful than the other. each of them is based on facts reflected in my notes from 15 years ago. and certainly, as a guest of your wonderful law school, my intent in telling these two tales is not to cast aspersions on palacký nor its administration or faculty, nor for that matter hofstra, ford, or myself. all of the participants acted in good faith, with the best of intentions, and with great passion. there is no doubt that in that one year, the students, faculty, and administration of palacký took great strides in starting the process of the development of experiential education in the czech republic and that those efforts sowed the seeds for the strong clinical program that now exists fifteen years later. but, at least in my opinion, primarily retelling the first story and disregarding the second has profound consequences. quite honestly, i love to tell people the first tale. it emotionally makes me feel quite successful about my work with your law school. but, if we want to be honest about what actually happened, we cannot ignore the second tale. in fact, that story has some significant takeaways from which we can learn a great deal: about the tensions, for example, between the cultural perspectives of american legal educators and their czech counterparts; about both the benefits and limitations of outside influence in the development of law schools in newly-democratized countries; and the different roles of skills training and social justice in experiential education. as heartwarming as it may be to sit over a couple of drinks and share the first story with you, nuance is lost. it is only through the messy details of the second tale that we are able to gain some insights into how we can improve complex legal education. use of persuasion and inquiring modes unfortunately, too much of the current literature on experiential legal education has the attributes of my first tale – moving essays which are not necessarily grounded in a critical examination of the messy details. a good example of this storytelling approach to issues in experiential legal education is the treatment of an empirical study i conducted a few years ago on the effectiveness of clinical legal education.[footnoteref:2] in that study, i compared the legal reasoning strategies used in solving a legal problem by different groups of students at the university of chicago law school: second-year students who had not enrolled in a clinic; third-year students who had not taken a clinic; and third-year students who had been enrolled in a clinical program. when it came to the issue of the effectiveness of clinical training, my findings were mixed. i found that – at least in terms of these particular groups -those subjects who had enrolled in a clinic outpaced their nonclinical counterparts in identifying client interests and the next steps to take in the case. but i also discovered that participation in a clinic may not lead to better proficiency in fact analysis or identification of relevant rules. [2: stefan h. krieger, the effect of clinical education on law student reasoning: an empirical study, 35 wm. mitchell l. rev. 359 (2008).] surprisingly, despite these mixed findings, several of the subsequent articles which cite this study disregard or downplay the findings that are negative about clinical education and suggest that my study shows overall benefits of clinical experience. one article, for example, argues, “the benefits of moving from the traditional passivity of the socratic dialogue to adding experience to doctrinal courses via simulation exercises are myriad. in fact, this hypothesis has been tested empirically.”[footnoteref:3] the authors then cite my article with a parenthetical stating that the study “conclude[s] that students who participated in experiential education activities in law school were better able to identify some relevant facts in a legal fact pattern, identify legal rules relevant to a client's problem, identify client interests, and consider next steps in a client representation.” apparently, because it would undercut their overall argument, the authors say nothing whatsoever about the more negative findings. in another article touting the benefits of experiential legal education, the authors cite the study to recite the same list of the purported superior performances by clinical subjects but then hide the mixed results in a footnote.[footnoteref:4] [3: lisa t. mcelroy & christine n. coughlin, failure is not an option: an essay on what legal educators can learn from nasa’s signature pedagogies to improve student outcome, 75 j. air l. & com. 503, 509 n.25 (2010). ] [4: christine n. coughlin et al., see one, do one, teach one: dissecting the use of medical education’s signature pedagogy in the law school curriculum, 26 ga. st. u.l. rev. 361, 397-98 (2010).] another example in this storytelling genre about experiential legal education, is a significant – and much heralded – recent report on american legal education by a major clinical educators association, best practices for legal education.[footnoteref:5] in it, the authors review one-sided polemics in support of experiential education. and then conclude the tale with the bald assertion: [5: roy stuckey et al, best practices for legal education: a vision and a roadmap (2007).] we encourage law schools to follow the lead of other professional schools and transform their programs of instruction so that the entire educational experience is focused on providing opportunities to practice solving problems under supervision in an academic environment. this is the most effective and efficient way to develop professional competence. the authors of this report apparently saw no need to consider research contrary to their preconceived conclusion or even to tone down the language to recognize that a valid counter-narrative might exist. the type of storytelling reflected in these articles and best practices, by its very nature, falls into the category of what robert condlin calls the use of persuasion mode. condlin posits that two types of reasoning are at the core of an attorney’s work: persuasion mode and learning mode. in persuasion mode, the lawyer tries to manipulate a situation to achieve a particular goal. a lawyer in persuasion mode tends to act more or less based on strategic motives. she minimizes any self analysis, tentativeness, doubt, or perplexity over the unknowable and gray areas of her cases. in learning – or what i will call inquiring mode – the lawyer’s reasoning is open ended. she follows her curiosity and interest in exploring things regardless of consequences. a lawyer in inquiring mode is not trying to accomplish anything except to learn more about a subject.[footnoteref:6] [6: see generally robert condlin, the moral failure of clinical education in lawyers’ roles and lawyers’ ethics 318 (d. luban ed., 1983); robert condlin, socrates’ new clothes: substituting persuasion for learning in clinical practice instruction, 40 md. l. rev. 223 (1981).] obviously, effective attorneys need to use and function well with both modes of reasoning. in interviewing, counseling, and mediation, for example, use of the inquiring mode may be crucial to understanding the complete picture of what has occurred in a dispute or what a party seeks to obtain in a particular transaction. but in other arenas – such as trial work or adversarial negotiation -persuasion mode is usually the most effective means of attaining a client’s goals. applying condlin’s model to our own work on complex legal education, it is clear that storytelling in the persuasion mode can be very beneficial to those of us who are committed to experiential legal education. our field is a relatively new movement. from its inception, some traditional legal academics have been quite hostile to the notion that practice-based learning should have had any role in law schools. in america – and elsewhere in the world – many clinical and skills teachers have been deprived of comparable compensation with other law professors, have been denied full participation in governance of their institutions, and remain in second-class status. given this context, it is quite natural that teachers in the field of experiential legal education have been prone to use persuasion mode. we have a strategic goal: to persuade our colleagues and institutions of the value of our pedagogy and to become full-fledged members of the legal academic community. and to achieve that goal, we sometimes filter out damaging facts and gloss over doubts and perplexities in regard to the unknowable and gray areas of the case we are making. but i believe that for a movement that is now half a century old, it is high time that we start to refocus our energies from persuasion to inquiring mode. obviously, we should not sell ourselves short, especially in situations in which others in the legal academy want to shut the door on our status and pedagogy. but, at least in my opinion, we need to step back from our storytelling. in inquiring mode, we need to critically examine our teaching methods, the relative roles of experiential and other forms of legal instruction, and the impact of our teaching on our graduates years into practice. we should explore these issues regardless of the consequences – even if, for example, we find that other types of pedagogy are beneficial throughout legal training or that some of our methods and approaches are simply counterproductive. i believe it is time for us to abandon our shibboleths and familiar narratives. we need to engage in the type of rigorous inquiry that will help us to improve not only our contributions to context-based learning but also to legal education as a whole. four hundred years ago, the influential reformer jan amos komensky traveled these parts challenging prevailing educational theories and advocating the use of new teaching methods. in komensky’s spirit, i hope that we can also challenge prevailing theories in our field in order to develop more effective methods for educating our students. so, for the remainder of this presentation, i would like to give a critique of some of the trendy stories in experiential legal education these days and raise some questions about their validity. before i begin, however, i want to make clear; i am not calling for a total rejection of these narratives. just as there is some truth to my first story today about the palacký clinic, there is some validity in the stories i will be discussing. they have some important points to make. my point, however, is that the evidence supporting these narratives is not as clear-cut as some of those storytellers would like to believe. i submit that we should be willing and eager to explore all the evidence – both pro and con – in regard to the tales now being told in our field. tale 1: the practical apprenticeship model: the vehicle for 21st century legal education the first story i would like to address can be entitled, the practical apprenticeship model: the vehicle for 21st century legal education.[footnoteref:7] [7: for a full discussion of the issues raised in this section, see stefan h. krieger & serge martinez, performance isn’t everything: the importance of conceptual competence in outcome assessment of experiential learning, 19 clinical l. rev. 251 (2012).] this story has been at the forefront of recent efforts for changes in legal education by many in the american experiential legal education community. the source of this narrative was the 2007 carnegie report on legal education – educating lawyers: preparation for the profession of law.[footnoteref:8] it has generated numerous favorable articles; an array of conferences on how best to implement its recommendations; and the creation of law school committees throughout the united states on carnegie reform. unfortunately, however, very few scholars have sat back and given the report the critical analysis it requires. [8: william m. sullivan et al., educating lawyers: preparation for the profession of law (2007).] one of the primary recommendations of the report is increased emphasis on what it calls the “practical apprenticeship.” attempting to adapt the traditional legal apprenticeship model to present-day legal education, the report calls for studying the performance of experts to distill and simplify their techniques. these are the expert’s toolkit. then based on those techniques, we should teach students “scaffolds” for practice: “the rules, protocols, and organizing metaphors for approaching situations or problems.” a scaffold could be, for example, a particular interviewing procedure, a protocol for problem solving, a technique for negotiating a deal, or a method for drafting a contract. in the carnegie model, increased competence comes as a student gradually accumulates a “toolkit of well-founded procedures” in different areas of legal practice. within this performance framework, “the prime learning task of the novice in law is to achieve a basic acquaintance with the common techniques of the lawyer’s craft.” according to carnegie, then, the primary focus of experiential education should be on performance: repeated experiences in which students use expert techniques. in this approach, student reasoning takes a backseat to learning these techniques. in fact, carnegie argues that reasoning and attention to context by novice learners is unhelpful; instead, it posits that students should be taught to “recognize certain well-defined elements of the situation and apply precise and formal rules to these elements, regardless of what else is happening.” carnegie’s story may at first glance seem very enticing to those of us who are committed to context-based learning. in fact, it has been wildly acclaimed by many in the american clinical community. the crucial problem underlying carnegie’s focus on performance, however, is that it does not rest on a sound theoretical or empirical foundation. carnegie’s reliance on the dreyfus theory carnegie’s theory of expert training is based entirely on the work of two brothers, hubert and stuart dreyfus, educated respectively as a philosopher and an engineer. the dreyfus brothers posit that expertise is simply a matter of pattern recognition. they argue, for example, that we are able to ride bikes because of prior experiences operating them, not because we are engaging in some kind of cognitive process. as they observe, “no detached choice or deliberation occurs. it just happens, apparently because the proficient performer has experienced similar situations in the past and memories of them trigger plans similar to those that worked in the past and anticipation of events similar to those that occurred.”[footnoteref:9] they argue, “normally, experts do not solve problems and do not make decisions; they do what normally works.” [9: hubert l. dreyfus & stuart e. dreyfus, mind over machine: the power of human intuition and expertise in the era of the computer 28 (1986).] with this theoretical outlook, the dreyfuses assert that acquisition of this kind of expert intuition requires the novice to learn protocols and strategies for identifying the facts and features of a particular situation and performing in response to these facts. they assert that novices progress through different stages of accumulated experience. these stages of development, the dreyfuses claim, reflect an evolution from the abstract toward the concrete, “from … following abstract rules, to involved skilled behavior based on accumulation of concrete experiences and the unconscious recognition of new situations similar to whole remembered ones.” in the dreyfuses’ own words, as students become experts, they act “arationally.” in other words, expert performance is essentially mindless. accordingly, under the dreyfus approach, expertise is not reflected as much in cognitive competencies as in mindless performances responding to perceived situations. consistent with dreyfus, carnegie envisions that students should first learn rules, strategies, methods, and protocols to enable them to recognize patterns and perform in particular situations. following dreyfus, the report contends that after numerous experiences, students progress through stages and acquire expertise. as they develop expertise, they stop relying on abstract rules and instead respond unconsciously to new situations by perceiving similarities to whole, remembered past experiences. from this perspective, a student’s action, rather than her reasoning process, has paramount importance. 1. cognitive science critique of dreyfus cognitive science research challenges the dreyfus expertise theory and suggests a much different approach to training for expertise. most cognitive scientists do recognize the role that pattern recognition plays in expert performance. nonetheless, they reject the notion that intuitive pattern recognition alone is determinative of expert performance. in fact, the dreyfus theory conflicts with a number of empirical findings on expert decision making. first, contrary to the dreyfus theory, studies show that in many domains requiring complex problem solving, expertise does not produce a decrease in abstract thought and a concurrent increase in concrete thinking. indeed, in these domains, experts have been found to analyze problems at a deeper, more abstract level than nonexperts.[footnoteref:10] [10: see krieger, supra note 6, at 265.] second, the existence of progressive stages in expert development is not supported by the evidence. the dreyfus theory suggests that the more experience individuals have in a particular area, the more intuition they acquire, and the more expertise they gain. studies have shown, however, that those individuals with extensive experience in a field do not necessarily perform better than people with less training. in fact, the number of years of experience in a field is a poor predictor of attained performance.[footnoteref:11] [11: id.] many of us know lawyers who have practiced for decades who simply have not developed expertise in a field. finally, neuroscience evidence does not support the notion of similarity recognition in complex problem solving. this research demonstrates that complex decision making entails a rich connection of different neural subsystems (explicit and implicit) and an interplay between them.[footnoteref:12] [12: id. at 266.] in contrast to the dreyfus pattern recognition theory, cognitive scientists contend that, in fact, experts do use particular cognitive processes in their decision making. these processes are not always conscious and deliberate. rather, they reflect the interaction between implicit and explicit knowledge. complex decision making entails both unconscious abstract representations that experts have acquired through experience and explicit representations -their knowledge of the domain -which are conscious and can be verbalized. especially in domains like law and medicine, in which complex knowledge systems and symbolic representations play an integral role, more is involved in making decisions than mere pattern recognition of previous similar situations.[footnoteref:13] [13: id.] for example, although a physician may not be aware of all the cognitive processes involved, when she evaluates a patient, she is conscious of the patient’s characterization of his symptoms, her own diagnosis of the problem, and her requests for tests. by overlooking the complex and rich interaction between implicit and explicit knowledge, the dreyfus model fails to explain skills that are not just routines but instead involve complex tasks, such as finding solutions to problems. unlike driving a car or riding a bike, handling a legal problem in practice requires more than intuition based on pattern recognition. lawyers must juggle, for example, the substantive legal doctrine, the procedural context, the particular facts of the situation, the client’s needs, and the cultural and social context. the dreyfus theory simply does not address the kinds of complex decision making required in most lawyering. lawyers make decisions at a much more complex conceptual level than just recognizing patterns, and real expertise is associated with this higher level. several researchers in the field of medical education have concluded that the dreyfus model is just too simple to account for the complex pattern of phenomena linked to expert medical intuition.[footnoteref:14] so too should we reach the same conclusion in regard to the practice of law. these insights from cognitive science suggest that expert lawyers need more than a toolkit of simple rules, protocols, and strategies to facilitate pattern recognition. they need to acquire cognitive processes that help them organize and juggle the abundance of information pertinent to a case. [14: id, at 267. ] for client interviewing, for example, students need to learn more than general scaffolds for developing rapport, gathering information, and probing memory. they need to develop the abilities to identify basic doctrinal issues raised by a client’s problem; to consider the interplay between different procedural, substantive, and ethical issues raised in the interview; and to understand the difference between routine issues in a particular area and more difficult ones that require consultation with more experienced practitioners. yet the carnegie story largely ignores these and other essential cognitive processes. as a result, experiential education based on that narrative may not provide students with the rich experiences necessary to develop as true experts in practice. tale 2: the enchanted standardized client the second story which has gained quite a following in experiential education circles is what i call the enchanted standardized client. according to this narrative, experiential educators should use standardized client simulations to evaluate lawyer performance.[footnoteref:15] [15: for a full discussion of the issues raised in this section, see krieger, supra note 6.] the american best practices for legal education report, for example, glowingly tells the story of an experiment using standardized clients at glasgow graduate school of law in 2006 to assess student communication skills in interviewing. in this experiment, instructors used eight explicit criteria to evaluate student proficiency in interviewing: i. were the greeting and introduction appropriate? ii. did the lawyer listen to the client? iii. did the lawyer use a helpful approach to questioning? iv. did the lawyer accurately summarize the client’s situation? v. did the client understand what the lawyer was saying? vi. did the client feel comfortable with the lawyer? vii. would the client feel comfortable having the lawyer deal with her situation? viii. would the client come back to this lawyer if she had a new legal problem? for each of these eight elements, proficiency was assessed on a highly specific scale and given a score between 1 and 5. although such an approach is touted as a straight-forward method for assessing student learning, the standardized client story, like the carnegie tale, has very little empirical basis. advocates for this approach point to the use of standardized patients in medical education, but ignore the fact that very little study of that method has been conducted in the health sciences field. one major study in the medical field, however, suggests that in assessing clinical ability, reasoning ability may be at least as important, if not more important, as performance.[footnoteref:16] in this study, researchers examined the relationship between patient complaints to medical regulatory authorities about the nature of their physician’s care and the physician’s previous performance on the canadian medical licensing exam. the research sample included all physicians – over 3,000 doctors -who took the licensing exam between 1993 and 1996 and were licensed to practice in ontario and/or quebec. [16: robyn tamblyn, physician scores on a national clinical skills examination as predictors of complaints to medical regulatory authorities, 298 j. am. med. ass’n 993 (2007).] researchers then compiled data on all complaints filed with provincial regulatory authorities between 1993 and 2005 which were investigated and found to be valid. for each physician, they determined complaint rates, derived by dividing the number of valid complaints by years of practice time for two different types of complaints: those concerning communication issues and those concerning quality of care. finally, the researchers compared the two different complaint rates with each physician’s performance on the various components of the licensing exam. one part of the licensing exam assessed medical knowledge using approximately 450 multiple-choice questions about different areas of medicine. a second component assessed clinical decision-making skills using write-in or menu-selection response formats on 36 to 40 clinical problems concerning critical aspects of diagnosis or management. grades on these problems were not based on a single correct answer but on the relative quality of the responses regarding critical decisions in situations in which errors could affect the patient outcome. the final part was a performance-based standardized patient examination which asked candidates to interact with simulated patients for five to ten minutes. trained physician-observers assessed candidates in a number of areas, including data collection (e.g. medical history and physical examination) and communication skills (e.g., whether the test-taker used condescending, offensive, or judgmental behaviors or ignored patient responses). after examining the data, researchers found that the best predictor of quality-of-care complaints was the licensing exam’s clinical decision-making component, which focused on the cognitive ability of candidates to solve problems. the better the test-taker’s score on that part of the exam, the lower the complaint rate for that physician. although high scores on the communications component of the performance exam were not as good a predictor of low quality-of-care complaint rates, researchers also found a statistically significant inverse correlation between that measure and such rates. in regard to communication complaints, researchers found that scores on both the communication part of the performance exam and on the clinical decision-making exam served at nearly the same level, as predictors of communication complaint rates. finally, researchers surprisingly found a statistically significant inverse relationship between overall complaint rates and scores on the multiple-choice test. now, i certainly am not describing this study to you so that you can return to your law schools and report that the introductory speaker at a conference on complex legal education called for increased use of multiple-choice tests. in fact, the study seems to suggest that we should be focusing on teaching students how to problem solve and make decisions in practice more than regurgitate information. the primary reason i have discussed this research is to raise questions about the effectiveness of the use of standardized-clients to assess student development. the appeal to teachers of a checklist approach to assessment is not insignificant. this kind of method is relatively straightforward and unambiguous in its application, with clear goals and criteria for evaluation. students are also likely to embrace performance-based assessment. they will be graded favorably if they simply select and apply the proper tool from their toolkit of lawyering techniques. but in its straightforwardness, the standardized-client approach may detract us from focusing on more significant competencies for long-term practice, such as clinical reasoning. this medical study, then, raises significant questions about faddish narratives such as the use of standardized client assessment which are enticing in their simplicity, but which have little empirical support. as geoff norman, a researcher on medical education observes, “i fear that in a few years the outcomes movement too will emerge as one more educational fad, whose major impact was on committee hours reported by academics. this would be unfortunate. the goal of achieving some kind of uniformity is laudable, but the means to the end appear[] too simplistic to be successful.”[footnoteref:17] [17: geoff norman, editorial – outcomes, objectives, and the seductive appeal of simple solutions, 11 advances in health sci. educ. 217, 219 (2006).] tale 3: the gospel of teaching to learning styles the final narrative that pervades some quarters of experiential education is the gospel of teaching to learning styles. for many years now, skills instructors in the states – especially clinicians and legal writing teachers – have enthusiastically preached this gospel. according to the tale, there are at least five learning styles: (1) verbal; (2) visual; (3) oral; (4) aural; and (5) tactile. different learners process information most efficiently through different methods: verbal learners -through writing and reading written texts; visual learners – through pictures, diagrams, and other visual formats; oral – through verbal discourse; aural – through listening; and tactile – through doing. the preachers of this gospel acknowledge right up front that students generally rely to a greater or lesser degree on most, if not all five, methods. but they go one step farther: according to their story, instruction -to some extent -should be tailored to a student’s learning style. individual learning styles should be assessed, and instruction should be focused on that style. the best practices report recommends, for example, that law schools create faculty-supervised learning centers to provide academic support for students. these centers, the report contends, would assist all learners as individuals to make demonstrable progress at their own pace taking their learning styles into account without stigma. and the literature is replete with exhortations such as this one from a clinical teacher at a prominent clinical program, “[r]eaching a learner through his or her preferred learning mode can have a substantial positive effect on learning efficiency and outcomes for that student. when designing an effective learning-friendly classroom community, professors can draw upon these understandings of preferred learning modes.”[footnoteref:18] [18: kate e. bloch, cognition and star trek: learning and legal education, 42 j. marshall l. rev. 959, 968 (2009).] unfortunately, however, the preachers of the learning style gospel have not taken a hard look at the recent empirical evidence about tailoring instruction to learning styles. in fact, that evidence, calls into question the accuracy of this story. a recent article in the journal medical education reviewed the extensive literature on learning styles and concluded, “[a] thoughtful review of the data provides no support for style-based instruction.”[footnoteref:19] research has shown that people, when asked, will volunteer preferences about their preferred mode of taking in new information and studying. such preferences, however, do not demonstrate that assessing a student’s learning style would be helpful in assessing the most effective mode of instruction for that student. [19: doug rohrer & harold pashler, learning styles: where’s the evidence, 46 med. educ. 630 (2012).] the authors of that medical education article observe that the only research design that would support style-based teaching would require the evaluation of the outcomes from different instruction using different modes of instruction. specifically, an appropriately-designed study would require that subjects be divided into two different groups (for example, visual and verbal) based on a learning styles test; the subjects would be randomly assigned to instruction in the different modes so that one-half of each group would receive the right mode of instruction and half would receive the wrong mode; and all the subjects would then be given a test for assessment. these researchers found that only a relatively few studies used this methodology, and most of them that did showed no correlation between the subject’s performance on the assessment test and a subject’s instruction in her preferred learning mode. the authors conclude, “[t]here presently is no empirical justification for tailoring instruction to students’ supposedly different learning styles. educators should instead focus on the most effective and coherent ways to present particular bodies of content.” so here with the gospel of learning styles we have another popular story in the experiential education library that – under close inspection – is not quite as significant as its narrators try to make it. again, i want to be clear that i am not contending that there is no such thing as different learning styles or that, when possible, a teacher should try to use different modes of instruction. in fact, the researchers who have conducted these critical reviews of learning style literature uniformly suggest that different modes can be helpful if the content taught can effectively be taught with that approach. my only point is that before we get on the tailored-learning-style bandwagon, we need to seriously consider the validity of the research underlying that narrative. before law schools expend substantial funds on learning centers focused on individual learning styles or instructors use their limited course time to testing of individual learning style, we need some critical inquiry of the subject. where do we go from here? these stories -the practical apprenticeship model: the vehicle for 21st century legal education, the enchanted standardized client, and learning style gospel are just three of the popular narratives that dominate many discussions in the field of experiential education. unfortunately, there are other similar stories. in classic persuasion mode, these tales are used to validate our pedagogy and approaches to legal education. but, for the most part, they are not the subject to critical inquiry or discussion. these narratives may have some validity, but most scholars in the field have shied away from approaching them with the lenses of inquiring mode. so how do we do that? i would like to spend the remainder of my presentation describing some proposals on how we can use inquiring mode to approach complex legal education – knowledge, skills, and values. first, i suggest that we need to subject our pedagogy and teaching models to evidence-based scrutiny. unlike researchers in other fields such as medical education, scholars in legal education have substituted empirical examination of their work with arguments and theories based on the authors’ own experience in the classroom. perhaps, it is in our dna. as lawyers, most of us would rather argue positions rather than openly explore issues. we do not have the scientific bent of physicians. most scholarship on complex legal education has been no different. in large part, it is based solely on anecdotal experiences in the classroom or clinic or on informal surveys of students in skills courses. nice stories; but too little critical inquiry. the purportedly momentous carnegie report on american legal education, for instance, based most of its assertions about the role of clinical education in law schools on an informal survey of clinical programs at several different law schools. in selecting these schools and analyzing the data, the authors of the report used no methodological controls. accordingly, they have provided us with no basis for assessing the validity of their findings. skills teachers, myself included, are quite gratified by the positive feedback we receive from our students who consistently repeat the mantra,”your course is one of the only classes in law school where i did something practical!” but such acknowledgements or student satisfaction surveys, such as the american law school survey of student engagement (“lssse”), are not substitutes for a hard look at teaching methods. they simply do not tell us whether our pedagogy – in the long run – will transfer into effective representation of clients in practice. what i believe we need to do is approach our research in an inquiring mode with an open mind, not to “prove” a particular theory or validate a pet method for training students. rather, we should attempt to learn as much as possible about the subject to develop inferences and explanations about it. a whole array of subjects in the area of complex legal education are out there that are ripe for empirical study: a) the relative effectiveness of different instruction models -live-client clinics; simulation courses; and externships -in training students in particular skills; b) the impact of different modes of instruction -large-group lectures, seminars, role plays -on development of specific skills; c) the effectiveness of computer-based learning in complex legal instruction; d) the efficacy of early lawyering skills courses in laying a foundation for later skills training; e) the effectiveness of different methods of outcome assessment for evaluating student performance; and f) the long-term impact of clinic courses on attorneys in practice. and there are many other issues i am sure you can identify. i suggest that throughout this conference, we consider issues which we can empirically test. now i can read the thought bubbles over your heads responding to this proposal: “it’s impossible to test with any accuracy most, if not all, of the issues you’ve identified. complex legal education is simply too complex to subject to empirical scrutiny.” while this concern is quite legitimate, i do not think that it undermines -in any significant way – the benefits of such inquiry. no, we are not going to be able to run the kinds of large subject quantitative studies used in some medical research. but we can use the rigorous methods developed for small sample size qualitative research that can start to give us some insights into the questions we wish to study. we can design such valid research by: i) the crafting of concrete and narrow hypotheses; ii) the development – even with small sample sizes -of selection criteria for subjects which attempt to eliminate bias; iii) the use of a methodology, such as video recording or document capturing software, which assures the collection of the full array of data; and iv) the development of valid and reliable rules – explicit coding protocolsfor measurement of the data collected. moreover, the validity of this type of research can be enhanced by replication and sharing of data. the methods of qualitative empirical study require transparency in the research process. researchers disclose all the steps of their studies: hypothesis generation; subject selection criteria; methodology; and measurement protocols. and after they publish their studies, they post their data on websites accessible to other researchers. in this way, other scholars have the ability to review and critique the research methods and to conduct their own analysis of the data. they also have the ability to tweak the methodology and attempt to replicate the study. research, then, becomes a social enterprise, in which multiple researchers are not just telling their discrete stories about a subject but building on the work of others. second, i propose that we collaborate much more extensively with colleagues in other disciplines who are exploring similar complex educational issues. researchers, especially in the area of health sciences, have been studying issues of professional education for decades. we are far behind them, and we can learn a lot from them. i could not have done my own empirical and theoretical research on student legal reasoning without the significant assistance of faculty members at columbia medical school’s department of biomedical informatics. a few years ago, after i published a piece on the role of domain knowledge in teaching legal problem solving, a law professor at another school was highly critical of my conclusions. i suggested that we develop a study together to test our divergent hypotheses. he declined my offer candidly telling me that empirical research is simply just too time-consuming. while such research may be very labor intensive, at least in my opinion, that factor is not an adequate excuse for rejecting empirical scrutiny of our work. by working with researchers in other fields, some of the labor intensive aspects of empirical research can be alleviated. they can help us frame hypotheses and develop research methodologies. many of the issues we are now tackling have been the subject of research in other fields. these studies can be used to frame our own research. for example, medical educators have conducted numerous studies of the issue of the use of simulated versus actual patients in clinical instruction. and the issue of learning transfer – using a concept learned in one context to solve a problem in a different context – is now a very hot topic for research in a number of areas of educational psychology. with necessary revisions, we can attempt to replicate this research. researchers in other disciplines can also train us in the methodology of qualitative empirical research. the columbia faculty, for example, have helped train my own research assistants in the use of the think-aloud protocol for interviewing law school subjects in my studies on legal reasoning. and in a study which i am currently conducting with a colleague on the different reasoning strategies of students using print versus electronic media, a colleague in hofstra’s sociology department is assisting us in using advanced statistical software to analyze the data.[footnoteref:20] [20: subsequent to this conference, this study was published. see stefan h. krieger & katrina fischer kuh, accessing the law: an empirical study exploring the influence of legal research medium, 16 vand. j. ent. & tech. l. 757 (2014).] additionally, colleagues in other fields can give us a deeper understanding of the theories and approaches in other disciplines than we can gather from reading one or two articles. i am the first to admit that empirical research is not the be-all-and-end-all of critical inquiry of our field. serious study of the relevant theoretical literature in other fields can also be quite productive. far too often, however, legal scholars will discover a particular social, psychological, or educational theory and latch onto it, without a full grasp of the place of that theory in the discipline or critiques of its validity, and present it as accepted dogma. apparently, that is what happened with the carnegie report in which the authors focused solely on the dreyfus theory of expertise without considering the contradictory evidence and theories in the cognitive science literature. researchers in other disciplines can provide us a more nuanced grasp of the present state of thinking in those fields and introduce us to all the important literature on a subject. in a similar vein, colleagues in other fields can help us to tamp down our tendency to slide into persuasion mode. several times in reviewing drafts of my articles describing my empirical studies, my colleagues at columbia have cautioned that my data do not fully support some of my extravagant conclusions. they have helped me to understand that any one study is only one piece of the puzzle, and that other research – by me and others – will over time provide a fuller picture. finally, i propose that we reach out to other colleagues in our law schools – especially those who are critical or skeptical of experiential education – to collaborate on studies of effective pedagogy. even after all the decades in which clinical and skills teaching have been part of the curriculum, there is still a divide between “them” and “us.” in my own experience, i have seen that phenomenon even in schools that have a strong tradition of skills education. and it is not just the nonclinical teachers who have this superiority complex that their teaching is deeper and more significant. often clinicians will confide among themselves that students are getting their only real training in clinics. at least in my opinion, if legal education is going to improve significantly, our studies of teaching methods and pedagogy should not be limited to assessing experiential education. we need to explore the entire enterprise of legal education. as the canadian study of performance in practice suggests, there are benefits in complex professional education from both traditional doctrinal study and clinical fieldwork. and it may not be as simple as the carnegie report suggests, as having a first year devoted to study of basic legal reasoning and final years devoted primarily to skills training. we need to persuade our colleagues to work with us to develop studies to test the relative effectiveness of different teaching methods and approaches. both groups need to recognize that arguments in persuasion mode about the relative benefits of different teaching methods are not going to resolve the matter. and both need to approach this research with open minds willing to accept results that are counter to their present positions. conclusion after all this criticism of the scholarship on complex legal education, some of you may be wondering whether i am going to conclude this presentation questioning the merits of my more than three decades as a clinical teacher. but that is far from the case. while i might not have substantial empirical support for my beliefs, i do feel that clinical education has had significant benefits for my students and thousands of others over the past half a century. i acknowledge that much of this feeling is based primarily on stories, but when i talk to graduates twenty or thirty years out of law school and hear tales of the value of clinics on them even today, i know we had some real effect. but, at the same time, i am worried that we will complacently continue – much like our nonclinical colleagues – to rely on stories to support our work rather than critical inquiry. i certainly understand the risks of our questioning the effectiveness of our teaching methods. while experiential legal educators have come a long way, at a vast majority of schools, our status is still less secure than doctrinal faculty. if we follow the path i suggest, we may be giving our critics ammunition to use against us. but if our goal is to improve our teaching, better train our students, and provide quality representation for clients, i, for one, believe the risk is worth it. we need to show our critics that we are confident enough in our pedagogy that we will not shy away from rigorously assessing it. when i look at the alternative stories of the establishment of the palacký clinic, i have to say i like the second one much better. it is not a heroic tale. it highlights the limitations of both the faculties at hofstra and palacký. but in so doing, it helps us -so much better than the first narrative -to explore what we can learn about the establishment of clinical education in newly-developed democracies and the nature of experiential education. in fact, given the present success of the palacký clinic, that story may be a good lesson for us about the need for slow, grassroot development of clinics rather than close direction by experts from abroad. i hope that throughout this conference, we do share our stories of our successes in our field. but i also hope that we do not shy away from identifying our failures, problems, and doubts. most importantly, i hope we can consider ways of collaborating in the future to reflect critically on the important issues now facing complex legal education. 246 reviewed article 54 the law in the community model of clinical legal education: assessing the impact on key stakeholders lyndsey bengtsson and bethany a’court, northumbria university* abstract this article examines a model of clinical legal education where a university law school works in partnership with an external organisation. the partnership enables law students to attend the offices of citizens advice during their law degree and under the guidance and supervision of their staff, advise their service users on a range of legal issues. using data collected from a research study involving student focus groups and semi structured interviews with the citizens advice supervisors, this research contributes to the understanding of whether, and how, this model impacts upon law students, citizens advice and the local community. this study contributes to the knowledge on the value of this model of clinical legal education from both a pedagogical and social justice perspective. the research raises questions as to how a partnership between a university and external organisation can overcome challenges, ensuring an equivalent clinical experience for all students and that effective feedback is provided to students. the results indicate that there are a clear set of pedagogical benefits to the students and benefits to citizens advice with regards to the service they can provide to the local community. the authors argue that this module enables students to engage in transformative and impactful work, whilst obtaining first-hand experience of the access to justice challenges (and other socio-economic issues) faced reviewed article 55 by their local community. the study will be of interest to clinics who incorporate, or intend to incorporate, an externship model in their curriculum, both in europe and beyond. introduction the law in the community student law office module was introduced into northumbria university’s llb hons curriculum during the academic year 2018-2019 and has now been running successfully for four years.1 in this module, the students volunteer for 4 hours each week at citizens advice over the course of the second semester to provide legal advice, assistance and/or legal education to their service users.2 this is in addition to the fortnightly workshops that they attend with their university tutor which further develop the students’ skills and aim to contextualise their volunteering experience. citizens advice is a network of charities, offering free and impartial advice to members of the community.3 it is a vital service which helped over 2.55 million people *lyndsey bengtsson and bethany a’court are assistant professors at northumbria university. the authors wish to thank callum thomson for his help in running the student focus groups. 1 for further information about the student law office please see the webpage https://www.northumbria.ac.uk/about-us/academic-departments/northumbrialawschool/study/student-law-office/. 2 for a discussion on the design and implementation of this module see lyndsey bengtsson, bethany a court and callum thomson, ‘the law in the community module at northumbria university: working in partnership with citizens advice as an effective educational tool’ (2021) international journal of clinical legal education vol.28 no.1 pp. 111-148. 3 citizens advice offers legal advice and assistance to the public in 2,540 locations across england and wales, with 21,400 volunteers and 8,150 members of staff. they provide advice on a range of legal https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-lawschool/study/student-law-office/ https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-lawschool/study/student-law-office/ reviewed article 56 with one-to-one advice in 2021/22.4 legal aid cuts introduced by the legal aid, sentencing and punishment of offenders act 2012 (laspo),5 and cuts to charitable organisations,6 has impacted on access to justice. indeed, those who seek assistance from citizens advice are often ‘the most disadvantaged in society with the greatest needs.’7 accordingly, through the students’ volunteer work, they increase the capacity of citizens advice and play a key role in ensuring advice and assistance is provided to those who may not otherwise be able to access legal services8. the students develop their ‘knowledge of the law and professional skills and simultaneously gain an appreciation of the access to justice challenges faced by their local community.’9 matters including welfare benefits, family, housing and employment law. for further information, see the webpage https://www.citizensadvice.org.uk accessed 22 april 2021. 4 citizens advice, ‘all our impact’ https://www.citizensadvice.org.uk/about-us/about-us1/impact-ofcitizens-advice-service/all-our-impact/ accessed 22 november 2022. 5 the reforms being implemented through the legal aid, sentencing and punishment of offenders act 2012 (laspo) http://www.legislation.gov.uk/ukpga/2012/10/contents/enacted accessed 27 november 2021. 6 debra morris and warren barr ‘the impact of cuts on legal aid funding on charities’ journal of social (2013) welfare and family law vol. 35 no.1 pp.79-94. 7 citizens advice, ‘our impact’ https://www.citizensadvice.org.uk/about-us/difference-wemake/impact-of-citizens-advice-service/all-our-impact/ accessed 3 december 2022. 8 see elaine campbell, ‘pro bono is great education for law students but they shouldn’t fill the gap left by legal aid cuts’ published in the conversation (2014) https://theconversation.com/pro-bono-isgreateducation-for-law-students-but-they-shouldnt-fill-gap-left-by-legal-aid-cuts-34323 accessed 4 december 2020. see also donald nicholson (2006) ‘legal education or community service the extra curricular student law clinic’ web journal of current legal issues, http://www.bailii.org/uk/other/journals/webjcli/2006/issue3/nicolson3.html accessed 4 december 2022. 9 lyndsey bengtsson, bethany a court and callum thomson, ‘the law in the community module at northumbria university: working in partnership with citizens advice as an effective educational tool’ (2021) international journal of clinical legal education vol.28 no.1 pp. 111-148. https://www.citizensadvice.org.uk/ https://www.citizensadvice.org.uk/about-us/about-us1/impact-of-citizens-advice-service/all-our-impact/ https://www.citizensadvice.org.uk/about-us/about-us1/impact-of-citizens-advice-service/all-our-impact/ http://www.legislation.gov.uk/ukpga/2012/10/contents/enacted https://www.citizensadvice.org.uk/about-us/difference-we-make/impact-of-citizens-advice-service/all-our-impact/ https://www.citizensadvice.org.uk/about-us/difference-we-make/impact-of-citizens-advice-service/all-our-impact/ https://theconversation.com/pro-bono-isgreat-education-for-law-students-but-they-shouldnt-fill-gap-left-by-legal-aid-cuts-34323 https://theconversation.com/pro-bono-isgreat-education-for-law-students-but-they-shouldnt-fill-gap-left-by-legal-aid-cuts-34323 http://www.bailii.org/uk/other/journals/webjcli/2006/issue3/nicolson3.html reviewed article 57 the benefits of law schools working with external organisations is not a new concept in clinical legal education and the benefits are well documented in the literature.10 similarly, law schools working in partnership with citizens advice is not new11 however there is a dearth of literature on value of this model from the viewpoint of the students and the citizens advice supervisors. previous research conducted by sparrow reveals that a collaboration between the law school of the university of portsmouth12 and their local citizens advice brings ‘rewards for both teachers and students’ which ‘have been significant’.13 for king and jones the partnership between birmingham city university law school and their local citizens advice14 brings benefits to citizens advice, its clients, the university and to the students. they highlight that it is ‘the glue of mutually reinforcing benefits that makes this partnership so 10 lyndsey bengtsson and ana speed, ‘a case study approach: legal outreach clinics at northumbria university’ (2019) international journal of clinical legal education vol. 26 no. 1 pp.179-215; margaret castles, ‘marriage of convenience or a match made in heaven? collaboration between a law school clinic and a commercial law firm’ (2016) international journal of clinical legal education, vol. 23, pp. 7-47; karen a jordan, ‘enhancing externships to meet expectations for experiential learning’ (2016) clinical law review vol. 23 pp.339; katie spillane, ‘being the change: social justice in externship program evaluation’ (2016) windsor yearbook of access to justice vol. 33 pp. 45; judith mcnamara, catherine campbell and evan hamman, ‘community projects: extending the community lawyering model’ (2014) international journal of clinical legal education vol. 21 no.2 pp.106-138; lydia bleasdale hill and paul wragg, ‘models of clinics and their value to students, universities and the community in the post 2012 fees era’ (2013) international journal of clinical legal education, vol. 19, pp.257-270; martin partington, ‘academic and practical legal education: the contribution of the sandwich system’ (1984) the law teacher vol. 18 pp. 110. 11 see sarah nason, ‘holistic legal support for litigants in person: the north and mid wales law clinic partnership’ (2022) international journal of clinical legal education, vol 29. no 2.pp. 69-111. 12 in this model the students conduct their citizens advice training in year two of their llb hons degree and then act as citizens advice advisers for 120 hours in year three. 13 claire sparrow, ‘reflective student practitioner an example integrating clinical experience into the curriculum’ (2009) international journal of clinical legal education, vol. 14 pp.70-76. 14 in this model the students in the third year of their llb degree attend citizens advice for one day each week. reviewed article 58 strong and enduring.’ 15 a more recent study by nason analysed a partnership between seven local citizens advice branches and bangor university using 13 student reflective reports.16 she concludes her research by highlighting that this model of clinical legal education has helped hundreds of people and students ‘have a greater appreciation and enabling people and communities to help themselves with some elements of their justice problems, as well as being aware that this is increasingly achieved or supported using new technology.’17 finally, in previous research conducted by the authors, the pedagogic value of this module was highlighted from the viewpoint of the academic responsible for designing, and implementing the module. the research concluded that it ‘not only develops students’ professional skills, but also empowers students to better understand access to justice challenges and enables them to play a pivotal part in supporting their local community.’18 this study builds on previous research and presents the first detailed empirical evidence of the importance of the law in the community model, capturing the perceptions of those who supervise students at citizens advice and those students who learn in the clinic. the overarching aim of this research was to assess the impact of the law in the community module on citizens advice, the community and the law 15 christopher king and david jones ‘cui pro bono? working on partnership: a possible blueprint for the future of clinical legal education’ in linden thomas, steven vaughan, bharat malkani and theresa lynch (eds) ‘reimagining clinical legal education’ (hart publishing, 2018) pp. 25-46. 16 sarah nason, ‘holistic legal support for litigants in person: the north and mid wales law clinic partnership’ (2022) international journal of clinical legal education, vol 29. no. 2 pp. 69-111. 17 ibid pp. 106. 18 lyndsey bengtsson, bethany a court and callum thomson, ‘the law in the community module at northumbria university: working in partnership with citizens advice as an effective educational tool’ (2021) international journal of clinical legal education vol.28 no.1 pp. 111-148. reviewed article 59 students. the study used semi structured interviews and focus groups to provide rich qualitative data. students and citizens advice supervisors participated in the data collection between april and may 2022. full details of the method adopted are set out in the method and methodology section. this article begins by providing a brief overview of the law in the community module, highlighting its key features, and providing background and context to the research. the method and methodology adopted will then be explained and thereafter the results will be analysed. background clinical legal education and the clinic at northumbria university the northumbria student law office clinic was first established in 198119 and utilises clinical legal education as the teaching method. there is no agreed definition of clinical legal education however one definition is ‘learning through participation in real or realistic legal interactions coupled with reflection on this experience’.20 the benefit of clinical 19 see cath sylvester, jonny hall and elaine hall, ‘problem based learning and clinical legal education: what can clinical educators learn from pbl?’ (2004) international journal of clinical legal education vol. 4 pp. 39-64. 20 kevin kerrigan, ‘what is clinical legal education and pro bono’ in kevin kerrigan and victoria murray (eds), a student guide to clinical legal education and pro bono (palgrave macmillan 2011) pp. 5. reviewed article 60 legal education in terms of skill development,21 employability22 and the wider community23 is well documented. as gold highlights, clinical legal education can ‘stand on its own as a powerful methodology for learning.’24 such a wide definition of clinical legal education is needed for it can encompass a variety of different models25; including, drop-in clinics, simulation, letters of advice, full representation and policy clinics.26 the student law office at northumbria university is a year long module for students in their third year of the mlaw degree27 and the final year of llb hons 21 richard grimes, ‘legal skills and clinical legal education’ (1995) web journal of current legal issues vol. 3; j giddings, 'contemplating the future of clinical legal education' (2008) griffith law review vol. 15, p.15; jonny hall, kevin kerrigan, 'clinic and the wider law curriculum' (2011) international journal of clinical legal education, vol. 15. pp.25-37. for a discussion on the link between clinical legal education as a learning methodology and the extent to which students become more aware of the knowledge, skills and professional responsibility see ann thanaraj, ‘understanding how law clinic can contribute towards students' development of professional responsibility’ (2016) international journal of clinical legal education, vol. 23 no. 4. pp. 89-135. 22 francina cantatore, ‘the impact of pro bono law clinics on employability and work readiness in law students’ (2018) international journal of clinical legal education, vol. 25 no. 1. pp.147-172. 23 frank dignan, ‘bridging the academic/vocational divide: the creation of a law clinic in an academic law school’ (2011) international journal of clinical legal education vol. 15 pp.75-84; lyndsey bengtsson and ana speed, ‘a case study approach. legal outreach clinics at northumbria university’ (2019) international journal of clinical legal education vol. 26 no. 1 pp.179-215. 24 nigel gold ‘why not an international journal of clinical legal education?’ (2000) international journal of clinical legal education vol. 1 pp. 7-12. 25 for a consideration of the different models of clinic see donald nicholson, ‘our roots began in south africa” modelling law clinics to maximise social justice ends’ (2016) international journal of clinical legal education vol. 23 no. 3 pp.87-136. 26 for a discussion on policy clinics see rachel dunn, lyndsey bengtsson and siobhan mcconnell, ‘the policy clinic at northumbria university. influencing policy/law reform as an effective educational tool for students’ (2020) vol. 27 no. 2 pp.68-102. 27 the mlaw degree at northumbria university is a 4 year qualifying law degree which incorporates a legal practice course (a 1 year post graduate level qualification required to qualify as a solicitor in england and wales). the way in which individuals may qualify as a solicitor in england and wales is changing with the solicitors qualifying examinations. for further information on the solicitors qualifying examination please see https://sqe.sra.org.uk/. https://sqe.sra.org.uk/ reviewed article 61 degree28 to advise and represent clients on a range of legal issues. 29 the student law office utilises the full representation model where students advise and represent members of the public under the supervision of qualified solicitors, barristers or caseworkers employed by the university. 30 bleasdale-hill and wragg highlight that this type of internal supervision model provides for more contact with the supervisor than an external model.31 this is a labour-intensive model of clinical legal education. approximately 200 students undertake this module each year and recover millions of pounds of compensation for clients.32 within the student law office year long module there is also a policy clinic where the students undertake impactful research with a view to influencing law or policy reform.33 as carpenter highlights, law schools are increasingly looking for ways to develop their clinical experience for students beyond the traditional representation model.34 in order to widen the scope of northumbria’s student law office, the law in the community module was introduced in the 2018-2019 academic year as an alternative 28 this is a qualifying law degree which does not incorporate a legal practice course. after completion of the llb degree, students would then need to complete either a 1 year legal practice course or the solicitors qualifying examinations. 29 the student law office advises on a range of legal issues including housing law, employment law, welfare benefits, family law, civil dispute and criminal law. 30 the module is also available to the legal practice course students as a 12 week module in the second semester. 31 lydia bleasdale-hill and paul wragg, ‘models of clinics and their value to students, universities and the community in the post 2012 fees era’ (2013) international journal of clinical legal education, vol. 19, pp.257-270. 32 see https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-lawschool/study/student-law-office/. 33 rachel dunn; lyndsey bengtsson and siobhan mcconnell, ‘the policy clinic at northumbria university. influencing policy/law reform as an effective educational tool for students’ (2020) vol. 27 no. 2 pp68-102. 34 anna e carpenter, ‘the project model of clinical education: eight principles to maximize student learning and social justice impact’ (2013) clinical law review, vol. 20 no. 1, pp. 39-94. https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/ https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/ reviewed article 62 clinical module to the year long student law office module. the aim of the module was for all the law students at northumbria university to have the opportunity to undertake a clinical module and ‘gain the practical legal experience and develop their professional skills.’35 at the time the module was introduced, the student law office did not have capacity to offer a clinical experience to all students.36 with more of an institutional focus on student satisfaction with the introduction of the national student survey and the teaching excellence framework (tef)37, it was also acknowledged that clinical modules often attracted a ‘high feedback rate’ due to ‘a combination of the fact that students tend to build relationships with supervisors, which they would not do on an ordinary black letter law module and secondly it is such a different way of learning to what students are used to.’38 the impetus behind the introduction of the law and the community module is pedagogical driven, however there is also a potential for social justice impact.39 students develop that social justice ethos and help increase the capacity of citizens advice in advising the local community. whilst social justice was not an explicit aim 35 lyndsey bengtsson, bethany a court and callum thomson, ‘the law in the community module at northumbria university: working in partnership with citizens advice as an effective educational tool’ (2021) international journal of clinical legal education vol.28 no.1 pp. 111-148. 36 ibid. 37 the national student survey and the teaching excellence framework are ways in which the government assess uk universities. see amanda french and matt o’leary ‘teaching excellence in higher education: challenges, changes and the teaching excellence framework’ (emerald publishing, 2017). 38 lyndsey bengtsson, bethany a court and callum thomson, ‘the law in the community module at northumbria university: working in partnership with citizens advice as an effective educational tool’ (2021) international journal of clinical legal education vol.28 no.1 pp. 111-148, 128. 39 ibid. reviewed article 63 of the module, from this perspective the students provide support to citizens advice and help fill unmet legal need in the local community.40 furthermore, the students gain a greater understanding of the access to justice challenges their clients face.41 social justice as an aim of clinical legal education has been extensively covered in the literature in the context of live client programmes42 and there is a debate as to whether it should be explicitly mentioned as a primary mission.43 many clinical programmes expressly adopt a social justice perspective44 and there is academic debate as to whether social justice or the pedagogical benefit should take precedence.45 however it is also important to acknowledge that students may not necessarily undertake clinical legal education because of the social justice perspective, with some students 40 anna e carpenter, ‘the project model of clinical education: eight principles to maximize student learning and social justice impact’ (2013) clinical law review, vol. 20 no. 1, pp. 39-94. 41lyndsey bengtsson, bethany a court and callum thomson, ‘the law in the community module at northumbria university: working in partnership with citizens advice as an effective educational tool’ (2021) international journal of clinical legal education vol.28 no.1 pp. 111-148. see also ben waters and jeanette ashton, ’a study into situated learning through community leadership partnership’ (2018) international journal of clinical legal education, vol. 25 no.2, pp. 4-47; f s bloch (ed.) (2011) the global clinical movement: educating lawyers for social justice, (new york: oxford university press). 42 see for example donald nicholson, ‘our roots began in south africa modelling law clinics to maximise social justice ends’ (2016) international journal of clinical legal education vol. 23 no. 3 pp.87-136; praveen kosuri ‘losing my religion: the place of social justice in clinical legal education’ (2012) boston college journal of law and social justice vol. 32 no. 2 pp. 336; richard j. wilson ‘western europe: last holdout in the worldwide acceptance of clinical legal education’ (2009) german law journal vol. 10 issues. 6/7 pp.835. 43riette du plessis, ‘clinical legal education: determining the mission and focus of a university law clinic and required outcomes, skills and values’ (2015) de jure 48, no 2; stephen wizner and jane aiken, ‘teaching and doing; the role of law school clinics in enhancing access to justice’ (2014) fordham law review 73, no 3, pp.997-1012. 44 paul mckeown, ‘can social justice values be taught through clinical legal education?’ in c. ashford, & paul mckeown (eds.), social justice and legal education (first ed., pp. 84-110, 2018). cambridge scholars. 45 ibid. reviewed article 64 motivated to enhance their employability.46 there is no set definition of social justice in the literature. for weinberg ‘social justice means that able members of society should challenge political, economic, societal, legal and other structures that oppress the less advantaged’.47 research has shown that pro bono experience can have a positive impact on students’ willingness to undertake public service work in the future.48 arguably, law schools play a role of raising awareness of unequal access to justice and to ‘implement strategies aimed at ameliorating these’. 49 the authors’ previous article highlights the consequence of austerity measures and the cuts to legal aid have meant that there is a greater need for organisations such as citizens advice and law clinics.50 a balance needs to be struck here, however, to ensure the students are not overloaded with clients, ensuring there is a pedagogic value to their work. indeed, as wilson highlights ‘loading students down with too many cases of poor clients is a disservice to both student learning and client service, and even with 46 paul mckeown ‘law students attitudes towards pro bono and voluntary work: the experience at northumbria university (2015) international journal of clinical legal education vol. 22 no. 1 pp. 6-46. 47 jacqueline weinberg, ‘preparing students for 21st century practice: enhancing social justice teaching in clinical legal education’ (2021) international journal of clinical legal education vol. 28 no.1 pp.567. 48 see sally maresh, ‘the impact of clinical legal education on decisions of law students to practice public interest law’ in educating for justice: social values and legal education (jeremy cooper and louise g. trubek eds. 1997); deborah a. schmedemann, ‘priming for pro bono publico: the impact of the law school on pro bono participation in practice’, in private lawyers and the public interest: the evolving role of pro bono in the legal profession (robert granfield and lynn mather eds. 2009). 49 lauren carasik, ‘justice in the balance: an evaluation of one clinics ability to harmonise practical skills, ethics and professionalism within social justice mission’ (2016) southern california review of law and social justice vol. 16, pp.23. see also elaine campbell and victoria murray, ‘mind the gap: clinic and the access to justice dilemma’ (2015) international journal of legal and social studies vol. 2 no. 3 pp. 94-106. 50 lyndsey bengtsson, bethany a court and callum thomson, ‘the law in the community module at northumbria university: working in partnership with citizens advice as an effective educational tool’ (2021) international journal of clinical legal education vol.28 no.1 pp. 111-148. reviewed article 65 the most accomplished clinical supervisor cannot provide quality oversight with an excessive number of clients served by large numbers of students.’ 51 the law in the community module law schools working in partnership with citizens advice has become more and more prevalent over the years.52 some clinics have operated this model for several years, developing a partnership which is ‘strong and enduring.’ 53 however there appears to be no set model as to how this partnership works in practice, with some universities requesting student volunteers to others making the module a mandatory part of their degree. some students receive a citizens advice qualification/accreditation as part of their volunteer work and others provide more of an ad hoc assistance. although not an exhaustive list, there are models of this partnership operating in birmingham city university,54 university of portsmouth,55 university of central lancashire,56 university of leeds, and lancaster university.57 51 richard j wilson, ‘western europe: last holdout in the worldwide acceptance of clinical legal education’ (2009) german law journal vol. 10, issues 6/7 pp.835. 52 lyndsey bengtsson, bethany a court and callum thomson, ‘the law in the community module at northumbria university: working in partnership with citizens advice as an effective educational tool’ (2021) international journal of clinical legal education vol.28 no.1 pp. 111-148. 53 christopher king and david jones ‘cui pro bono? working on partnership: a possible blueprint for the future of clinical legal education’ in linden thomas, steven vaughan, bharat malkani and theresa lynch (eds) ‘reimagining clinical legal education’ (hart publishing, 2018) pp. 25-46. 54 ibid. see also birmingham city school of law, ’legal advice and representation unit’ https://www.bcu.ac.uk/law/student-experience-and-employability/legal-advice-representations-unit 55 claire sparrow, ’reflective student practitioner – an example integrating clinical experience into the curriculum’ (2009) international journal of clinical legal education vol. 14 no.4 pp 70-76. 56 university of central lancashire, ’law clinic student support’ https://www.uclan.ac.uk/students/support/law_clinic.php last accessed 8 february 2023 57 lancaster university, law clinics’ https://www.lancaster.ac.uk/study/why-lancaster/law-clinics/ last accessed 8 february 2023. https://www.uclan.ac.uk/students/support/law_clinic.php https://www.lancaster.ac.uk/study/why-lancaster/law-clinics/ reviewed article 66 in the third year of the llb programme at northumbria university the students choose between the year long student law office module and the law in the community module. the latter is undertaken alongside their dissertation. in the law in the community module, the students leave their university campus and work from the offices of citizens advice to advise members of the public on a range of legal matters. they undertake this module during the second semester which is between the months of january and may. the students attend citizens advice for half a day each week for 10 weeks during the second semester. they are asked to complete approximately 16 hours of online mandatory training before the module starts so that they are ready to begin advising clients.58 this training is split into induction training and core training. the induction training introduces the students to the aims, principles and work of citizens advice. the core training activities aim to provide the students with key skills and knowledge that they will need to provide clients with information and advice, such as interviewing skills, case recording and telephone skills. the training activities are the same as those that regular volunteers at citizens advice are required to complete. where however, individuals volunteer longer term, they must complete further training.59 58 approximately 2 months before the start of the module the students are sent details of the online training course and asked to complete this before they begin their volunteering. 59 once the module comes to an end the student may agree with citizens advice to continue their volunteer work. reviewed article 67 whilst at citizens advice, the students are involved in advising clients at the daily face-to-face drop-in sessions where up to 60 members of the public can attend. the students are also involved in giving telephone advice to clients. they are exposed to a wide variety of issues and areas of law, including welfare benefits, debt, employment, consumer protection, housing, immigration, tax and travel. they also undertake a diverse range of activities on behalf of their clients, which involves interviewing clients, taking instructions and advising clients. additionally, they may undertake legal research, draft client statements and court documents, prepare case strategies and contribute to law reform.60 the students also attend fortnightly two hour workshops which further develop the students’ skills61 and contextualise their volunteering experience. these workshops take place within the law school with their university tutor. the students therefore gain the benefit of learning from multiple supervisors.62 as bengtsson and speed note, a model using a combination of university and external supervisors has the potential 60 for a discussion on the benefits of students undertaking policy work: see for example steven h leleiko, ‘clinical education, empirical study and legal scholarship’ (1979) journal of legal education, vol. 30 no.1 pp. 149. see also rachel dunn and richard glancey, ‘using legal policy and law reform as assessment’ in alison bone and paul maharg (eds) critical perspectives on the scholarship of assessment and learning in law (2019) (pp.139-163). anu press; rachel dunn, lyndsey bengtsson and siobhan mcconnell, ’the policy clinic at northumbria university: influencing policy/law reform as an effective educational tool for students’ (2020) international journal of clinical legal education vol. 27 no. 2, pp. 68-102. 61 for example, there is a workshop where the students are asked to research an area of law that they are interested in and that is of relevance to the work they do at citizens advice. the students complete a research report for feedback and then convert that research into a blog article. 62 lyndsey bengtsson and ana speed, ’legal outreach clinics at northumbria university’ (2019) international journal of clinical legal education vol. 26 (1) pp. 179215, plerhoples, a and spratley, a ‘engaging outside counsel in transactional law clinics’ (2014) clinical law review vol. 20, pp 379, 393, lydia bleasdale-hill and paul wragg, ‘models of clinics and their value to students, universities and the community in the post 2012 fees era’(2013) international journal of clinical legal education, vol. 19, pp.257-270. reviewed article 68 for ‘great rewards in terms of client satisfaction, community engagement and student development.’63 a theme throughout the workshops is the development of the students’ social justice awareness and ensuring that they gain an appreciation of the valuable role that they play in supporting unmet legal need. the workshops are designed to enable the students to consider their role at citizens advice and also explore what access to justice barriers are faced by individuals. for example, in one workshop the students are asked to deliver a short presentation about a case or task they have worked on whilst at citizens advice.64 in preparing for this presentation the students are directed to consider points such why the client came to citizens advice rather than any other provider of legal services. they are also asked to consider how the case may have developed had citizens advice not been involved and whether there are any implications of the case beyond the individual interests of the parties involved. during the first year of the law in the community module, the students dealt with a total of 475 clients. during the second year, the students handled a total of 73 client enquiries. the reduction in the number of clients in the second year was due to fewer students enrolled on the module and the second-year placements being cut short by 4 weeks due to covid-19. during the third year, due to covid-19 restrictions and concern over client confidentiality, the students conducted work which was non data 63 lyndsey bengtsson and ana speed, ‘a case study approach: legal outreach clinics at northumbria university’ (2019) international journal of clinical legal education vol. 26 no. 1 pp.179-215. 64 to protect client confidentiality, client details or other identifying information are not mentioned during this presentation. reviewed article 69 sensitive and did not have any direct client contact. notwithstanding the covid-19 pandemic, the students were still able to support citizens advice with legal research. given the rapid changes in various areas of law due to covid19, there was a demand for legal research and public legal education.65 in the last academic year 20212022, the students advised 300 clients. at the end of the module, the students are assessed by way of a portfolio containing all the work they have done both at citizens advice and during the workshops.66 this portfolio is stored at the offices of citizens advice and brought to the university by the students on the day of hand in at the end of the module.67 the portfolio is assessed on a range of grade descriptors including contribution to the module, knowledge and understanding, teamwork, research skills, written and oral communication, case and task management.68 each grade descriptor provides a qualitative statement for a range of levels which equate to the degree classification.69 one of the grade descriptors they are assessed on is reflection, which ledvinka describes as the ‘magic ingredient which converts legal experience into education.’70 the students demonstrate their reflective analysis in a reflective journal which they are asked to complete on a weekly basis. 65 notably in employment law and welfare benefits. 66 the students’ portfolio contains all of their draft work they have completed during the module together with all the feedback they have received from their citizens advice supervisor and their university workshop tutor. 67 the students agree the date and time they will transfer their portfolio from citizens to the university with both citizens advice and their workshop tutor. 68 the descriptors are meant to provide a guide to the likely performance level required for each criterion. the assessment criteria are equally weighted. 69 ranging from fail to high first. 70 georgina ledvinka, ‘reflection and assessment in clinical legal education: do you see what i see?’ (2006) international journal of clinical legal education vol. 9, pp. 29-56 at 29. reviewed article 70 this is important to enable the students to evaluate their progress as the module progresses71 and by encouraging students to reflect this develops their skills to be a life-long learner. it is also important to encourage students to begin to reflect at this early stage given that the solicitor regulation authority72 competence statement states that all solicitors need to ‘reflect on and learn from their practice and learn from other people’.73 this will also be an important transferrable skill to those students entering into other professions. method and methodology all students who had undertaken the law in the community module during the 2021/2022 academic year were invited to participate in a focus group at the end of their studies. a total of 25 students participated across two focus groups, representing 70% of the research population.74 each focus group lasted between 40-45 minutes. the use 71 lyndsey bengtsson, bethany a court and callum thomson, ‘the law in the community module at northumbria university: working in partnership with citizens advice as an effective educational tool’ (2021) international journal of clinical legal education vol.28 no.1 pp. 111-148; louise crowley, ’the family law clinic at ucc understanding the law in the classroom and beyond’ (2020) international journal of clinical legal education vol. 27 no.3, pp 175-228; keith morrison ‘developing reflective practice in higher degree students through a learning journal’ (1996) vol.21 no.3 studies in higher education pp., 317-332 doi: 10.1080/03075079612331381241. 72 which regulates solicitors in england and wales. 73 sra statement of solicitor competence, a2 https://www.sra.org.uk/solicitors/resources/continuingcompetence/cpd/competence-statement/ last accessed 8 february 2023. 74 the students were asked by the moderator to sign an informed consent form at the beginning of the focus group, which assured anonymity and confidentiality. therefore their supervisor did not know who had participated and no names were referred to in the transcription. the students were also asked to read an information document before they agreed to participate. in this document, the purpose of the focus group was explained, and the authors made clear that their participation would not affect any aspect of their programme of study and was in no way linked to their grade within the slo. the voluntary nature of their participation was highlighted, as was the fact that they could withdraw their consent to participate at any stage. https://www.sra.org.uk/solicitors/resources/continuing-competence/cpd/competence-statement/ https://www.sra.org.uk/solicitors/resources/continuing-competence/cpd/competence-statement/ reviewed article 71 of focus groups in research is widespread.75 they offer an opportunity to obtain ‘highquality data in a social context where people can consider their own views in the context of the views of others.’76 they offer cost effective data collection77 and can elicit diverse perspectives on a particular topic.78 focus groups may also elicit information in a way which allows researchers to explore why a particular issue is important.79 there are limitations to a focus group however, including ensuring the available response time for each participant is restricted so that everyone can be heard.80 also, those that feel their viewpoint is in the minority may be less inclined to share their opinion.81 a framework of questions was devised to help guide the discussion and to give it focus. an example of one of the questions from the interview framework was ‘what skills do you think you’ve developed and gained during your time in the module?’ the moderator82 however, could deviate from the framework and ask additional questions if required. this approach provided a balance between having a guide and flexibility. 75 jean a king and laurie stevahn ‘interactive evaluation practice; mastering the interpersonal dynamics of program evaluation.’ (2013) thousand oaks. ca. sage; richard a krueger and jean king ‘involving community members in focus groups’ (1997) vol. 4 the focus group kit thousand oaks, ca: sage. 76michael q patton ‘qualitative research and evaluation methods. integrating theory and practice’ (2015) 4th edition sage publishing pp.475. 77 richard a krueger “focus groups: a practical guide for applied research” (1994) 2nd edition thousand oaks, ca. sage. 78 michael q patton ‘qualitative research and evaluation methods. integrating theory and practice’ (2015) 4th edition sage publishing p477. 79 david l morgan ‘focus groups as qualitative research.’ (1988) london: sage. 80 michael q patton ‘qualitative research and evaluation methods. integrating theory and practice’ (2015) fourth edition sage publishing. 81 ibid. 82 who was not involved in the teaching of the module for the students and therefore did not have an input into the students’ assessment. reviewed article 72 in addition to the student focus groups, all those who supervised the law students at citizens advice were invited to participate in a semi-structured, one-to-one interview. interviews were chosen as they ‘achieve a level depth and complexity.’83 all three supervisors agreed to be interviewed. like the focus groups, a framework of questions was used to guide each semi-structured interview. however, the interviewee could deviate from this framework and ask additional questions if needed. from a practical viewpoint, sometimes there is simply not enough time for participants to be interviewed singly.84 however, given there were only three supervisors on the module, a one-to-one interview could be undertaken with each supervisor at citizens advice and it would not be overly time consuming. it also seemed more appropriate to interview the supervisors individually given the fact that one of the supervisors is the director (and manager of the other supervisors). watts found that participants can be inhibited where there is a dominant participant in the group85 so given the relationships between the supervisors and the potential professional hierarchy, individual interviews appeared more appropriate. of course, with any research, there is a risk that the participants could be influenced by the fact they know they are being studied, known as the hawthorne effect.86 this is usually 83 bridget byrne ‘qualitative interviewing’ in c seale (ed), researching culture and society (4th edn, sage 2018). 84 mike watts and dave ebbut ‘more than the sum of the parts: research methods in groups interviewing’ (1987) british education research journal vol. 13 issue. 1 pp. 25-34 85 ibid. 86 the hawthorne effect refers to a phenomenon in which individuals modify an aspect of their behaviour as a result of being observed. the term was coined during research at western electric’s factory in the hawthorne suburb of chicago in the late 1920s and early 1930s. it was concluded that the reviewed article 73 concerned with ethnographical research, but it can also be a challenge in other research methods. for example, in interviews respondents may change their answers to be more ‘correct’ when they know they are being studied. fekjaer explains that a social desirability bias can occur when participants want to give a more favourable image of themselves because they want to make a good impression on others.87 all research was undertaken in accordance with the university’s ethics procedure and each research participant provided informed consent to the study. each focus group and semi-structured interview was recorded88 and transcribed afterwards. following completion of the data collection, the transcripts were thematically analysed to identify key issues and any different experiences or perspectives.89 the transcripts were coded and thereafter organised into themes. the verification of the participant data by triangulation of research methods arises from the authors’ observations from teaching on the module, as well as from anonymous feedback of the students in the end of year module evaluation survey. a limitation of this research is that it examined a small-scale study, which may affect the quality of the study for some.90 the authors would argue that universities workers’ productivity was not affected by the changes in working conditions, but rather it was affected by the fact they knew they were being observed. 87 silje fekjaer ‘old and new methods in police research’ (2018) nordisk politiforskning, vol 5 no. 2 pp.104-123. 88 bryan marshall et al ‘does sample size matter in qualitative research?: a review of the qualitative interviews in is research’ (2013) journal of computer information systems vol. 54 issue. 1, p. 11. 89 virginia braun and victoria clarke ‘using thematic analysis in psychology’ (2006) qualitative research in psychology vol. 3 issue. 3, p. 5 accessed at: (https://uwerepository.worktribe.com/output/1043060) 90 ali alsaawi, ‘a critical review of qualitative interviews’ (2014) european journal of business and social sciences vol. 3 no. 4 pp.149-156, 151. reviewed article 74 operating a similar model of clinical legal education can transfer the results of this research to their work, through transferability.91 however, a larger cross institutional study would further develop insight into the value of this model of clinical legal education. the themes identified are as follows: (1) skill and attribute development (2) impact on the local community and to citizens advice (3) student perception of access to justice challenges and (4) supervision. results & discussion theme 1 – skill and attribute development a qualitative analysis of the data demonstrated that there are clear pedagogical benefits of this module to the students. there was a consensus (amongst both students and supervisors) that the module allowed the students to develop a wide range of skills and attributes, including: communication skills, interviewing, professionalism, problem solving, confidence, case management, time management and teamwork.92 the students felt strongly that they had developed their interviewing and oral communication skills. one student commented: 91 staffan larsson, ‘a pluralist view of generalization in qualitative research’ (2009) international journal or research and method in education vol. 32 issue. 1, p.13. 92 these are all skills students are expected to develop in clinical legal education. reviewed article 75 …you need to be able to communicate with people who may not understand. so, it was beneficial to me because it kind of taught me to communicate to them in a way that they will understand. i think that that’s very important. as one supervisor highlighted, the students advise those in the community who often have no other way to turn for legal advice. some clients may come to the interview distressed, seeking help. citizens advice often advise people who are vulnerable by reason of poverty, mental health difficulties or domestic abuse. one student explained that the clinical experience with these clients helps ‘you learn that this is how you’re supposed to talk to people, and that you need to communicate with them emotionally as well.’ the students learnt how they ‘just had to adapt to the different types of people that came in.’ supporting bengtsson and speed’s research on legal outreach clinics, the fact the students go into the local community to advise from the offices of citizens advice has meant that they have been able to meet ‘people in different walks of life’.93 also, by advising within the community the students have developed their ability to work with those who are vulnerable and who have complex needs. whilst there is no data on the socio-economic class of the students, their experience did expose them to social issues94 with one student commenting ‘just knowing our privileged position, from seeing what people struggle with can be very useful. we can just develop qualities to help make world 93 lyndsey bengtsson and ana speed ‘a case study approach. legal outreach clinics at northumbria university’ (2019) international journal of clinical legal education vol. 26 no. 1 pp.179-215. 94 for a discussion on how clinical legal education exposes privileged students to social issues see jane h. aiken ‘striving to teach justice, fairness and morality’ (1997) clinical law review vol. 4 no. 1 pp.1-64. reviewed article 76 a better place.’ another student described how they resorted to sliding notes across the table to use alternative methods of communication as the client was hard of hearing. the student described how they ultimately managed to advise this client acknowledging that they ‘got there in the end, eventually. it’s hard.’ some students commented on how they felt they had developed empathy for the clients and learnt how to deal with the cases on an emotional level. one student highlighted ‘you have to learn to deal with it emotionally, as well as professionally. it teaches you that too.’ another student commented ‘i had a client who was crying and i just said take your time, say when you are ready to speak. deal with the emotion too. teaches you that too.’ for another student the experience ‘personally opened my eyes to the real world in a sense. people coming in for food vouchers. i knew it went on but didn’t realise it occurred as much as it does. gave me a real kick.’ when students encounter clients who share their problems and emotions this can be a challenge for them.95 as fletcher and weinstein note, this allows the students to deal with such situations both as human beings and as future lawyers.96 part of the mandatory online training focuses on emotional clients in the interviewing skills section to prepare them for these types of situations. the work they undertake at citizens advice allows an opportunity for the university workshop sessions to discuss concepts such as justice and equality with the students and allow them the opportunity to talk about their experiences. 95 lauren e fletcher and harvey m weinstein, ‘when students lose perspective: clinical supervision and the management of empathy’, (2002) clinical law review vol. 9 pp.147-155. 96 ibid. reviewed article 77 at times the students had to provide negative advice to their clients and advise them that their case could not be progressed. this may be because citizens advice did not have the capacity (or area of expertise) to assist or because the claim has little or no merit to pursue. one supervisor commented that these experiences gave the students strength and confidence when dealing with people and another supervisor commented that the students had come on ‘great guns’. this was echoed in the student focus groups which emphasised resilience and confidence as attributes which developed. despite the shift from doctrinal to clinical learning often being a ‘culture shock’,97 the students commented that stressful situations where someone is depending on you, gives you confidence and determination. whilst some felt that they had been ‘dropped in the deep end’, they did feel they had developed throughout the module and their confidence grew. one student felt that they were ‘more confident in practical work in general’ and another commented that initially they felt nervous and worried but by the end of the module they felt they could easily deal with clients because their confidence had increased. the students’ research skills had also really been intensively developed in this module. the supervisors explained that the students overall had advised on a ‘massive’ range of practice areas (including housing law, law, consumer, employment, and welfare benefits) and often when a client came in, it was not just in relation to one issue. the supervisors commented that this meant the students had to ensure they 97 gemma smyth and marion overholt, ‘framing supervisory relationships in clinical law: the role of critical pedagogy.’ (2014) journal of law and social policy vol. 23. pp. 62-82. reviewed article 78 asked the client enough questions to determine what the enquiry was about. the students echoed this and felt that they were faced with clients who had various problems. they explained that they then had to research these different areas and relay the research to the clients quickly and efficiently, which they had never had to do prior to working at citizens advice. this thereby affords the students with a breadth of experience in different areas of law. some students had a few clients in the same area of law, which is equally beneficial as they are exposed to the same legal issue but from a different perspective.98 some students felt that sometimes the work they did felt was more akin to ‘social work’ rather than providing legal advice albeit they did not provide examples of this. however, the inclusion of interdisciplinary work is beneficial as we are also teaching our students that you may need to think outside the legal system and this ‘enhances their ability to identify and cultivate additional resources and partners’.99 the students felt that the module enabled them to develop their teamwork skills both with other students and with their supervisors. in addition, the supervisors enjoyed engaging with the students and 'helping them along and showing them how to do things’. this presented the students with an opportunity to experience a trainee/supervisor relationship, similar to that they will experience in legal practice, or other professional workplaces. the module also offers the students the benefits of learning under 98 emil winkler, (2013) ‘clinical legal education: a report on the concept of law clinics’, accessed at https://law.handels.gu.se/digitalassets/1500/1500268_law-clinic-rapport.pdf. 99 robin s golden, ‘collaborative as client: lawyering for effective change’ (2012) new york law school law review vol. 56 pp.393. reviewed article 79 different supervisors, their citizens advice supervisor who is an experienced worker within citizens advice and their university workshop tutor who is an academic and qualified solicitor and who help contextualise their clinic experience.100 interestingly one supervisor commented that those students who were more confident ‘acted as mentors to those less confident. we saw that in quite a few of them.’ a previous study by dunn highlights that leadership skills are only really developed when students go into practice.101 a more recent study by dunn, bengtsson and mcconnell highlights however that students develop this skill in the policy clinic, where they undertake empirical research with a view to influencing policy or law reform.102 however leadership skills or mentoring were not mentioned in the student focus groups, suggesting that they may not have seen themselves as mentors or developing leadership skills. however, it was apparent from the data that not all students will have developed each of their professional skills at the same level. both supervisors and students commented that those students who attended citizens advice in the morning had a different clinical experience to those in the afternoon. those who attended in the morning had the benefit of the client drop-in service, and so could interview clients 100 lydia bleasdale-hill and paul wragg ‘models of clinics and their value to students, universities and the community in the post 2012 fees era’ (2013) international journal of clinical legal education, vol. 19, pp.257-270. 101 rachel dunn ‘the knowledge, skills and attributes considered necessary to start day one training competently and whether live client clinics develop them’ (2017) doctoral thesis, northumbria university. 102 rachel dunn, lyndsey bengtsson and siobhan mcconnell ‘the policy clinic at northumbria university. influencing policy/law reform as an effective educational tool for students’ (2020) international journal of clinical legal education vol. 27 no. 2 pp.68-102. reviewed article 80 and advise them in person. those who attended on an afternoon did not benefit from the client interviews but dealt with all the email enquiries. one supervisor commented: well the students that have been in the morning have had the advantage because they’ve done face to face work. so they’ve done a lot more because they are been governed by the numbers coming in and us moving them on. the people who came in in the afternoons haven’t not done as much, they’ve been doing email enquiries and enquiries by phone. but it means they’ve done less. some were sufficiently enthusiastic to change around to come in in the mornings. they therefore had the opportunity to change the times they attended to maximise their learning. however, it is apparent that some didn’t take this opportunity or perhaps did not really understand that they could change sessions. one student commented ‘personally (i’ve) only had 2 face to face (clients) and that’s really frustrating for me but i hear morning session students complain about how busy they are. i’d really appreciate it if that could change’. by contrast another student commented that they had had ‘over 20 face to face clients.’ this issue also translated into some concerns expressed by the students about their assessment, given that their portfolios may not have contained enough interview notes or emails. the fact that students can change the times they attend needs to be more explicit going forward (in the induction sessions and reinforced with regular reminders from both the university workshop tutor and citizens advice supervisor), so that students attend a combination of both morning and afternoon sessions. reviewed article 81 furthermore, there were some skills not mentioned in the data (including understanding of legal ethics, critical analysis and commercial awareness). however it is not surprising that students did not mention commercial awareness given the type of work they undertook at citizens advice and what previous research states in relation to this skill. notably, mcconnell suggests that students working in business, civil and employment clinics ranked commercial awareness more highly as a skill they developed compared to those working in family, housing and welfare clinics.103 however it is surprising that there was not more of a discussion on ethics, especially as one workshop explicitly covers this.104 the students did highlight however that they felt they had developed professionalism. given the importance of understanding ethics (this was one of the key recommendations of the legal education training review),105 it would be beneficial if the tutors are more explicit going forward as to the development of these skills during the module. some students were able to think about how they could use their experience and skills gained in the module in future job applications, indicating that the module has had a positive impact on the student perspective on their employability. one student highlighted in the context of discussing communication skills that he has ‘applied for 103 siobhan mcconnell, ‘a study of supervisor and student views on the role of clinical legal education in developing commercial awareness’ (2022) international journal of clinical legal education vol. 29 no. 2 pp. 4-67. 104 focussing on the article from ross hyams, ‘on teaching students to ‘act like a lawyer’: what sort of lawyer?’ (2014) international journal of clinical legal education vol 13. pp.21-32. 105 julian webb et al (2013) setting standards: the future of legal services education and training regulation in england and wales (the legal education and training review [letr]), p.140. accessed at http://letr.org.uk/the-report/index.html last accessed 10th february 2023. http://letr.org.uk/the-report/index.html reviewed article 82 various jobs’ and that this skill tends ‘to be the main criteria they’re looking for. i relate to citizens advice. i can say i worked at a supermarket, but it is not the same as dealing with clients.’ mcconnell highlights that the students must be able to articulate how their experience makes them more employable and they tended to lack confidence in how to use their experience to demonstrate it.106 however the data did not suggest that the students lacked confidence in articulating their skill development in future job applications or interviews. indeed, some students expressed confidence in attending assessment day type interviews because of the workshop tasks. one student explained how in one workshop ‘we did an exercise where you had to rank all the different qualities a solicitor should have. like a diagram of a pyramid from most important, and that could be an exercise that we could have in an interview.’ also, from an employability perspective the time spent at citizens advice may constitute qualifying work experience (qwe). this is important because the solicitors qualifying examination (sqe), which is the new system for qualifying as a solicitor in england and wales, requires at least two years of qwe as well as passing two examinations.107 to constitute qwe, the work must entail providing legal services that allow candidates to develop the competencies required to practise as a solicitor.108 106 siobhan mcconnell ‘a study of supervisor and student views on the role of clinical legal education in developing commercial awareness’ (2022) international journal of clinical legal education vol. 29 no. 2 pp 4-67. 107 for information about qwe see https://www.sra.org.uk/become-solicitor/sqe/qualifying-workexperience-candidates/ last accessed 8 february 2023. for a discussion on the sqe and qwe see andy todd and lucy blackburn ‘qualifying work experience in england and wales: the opportunities and risks presented to university law clinics’ (2022) asian journal of legal education vol. 10 issue. 1. 108 https://www.lawsociety.org.uk/career-advice/becoming-a-solicitor/solicitors-qualifyingexamination-sqe/qualifying-work-experience-qwe last accessed 8 february 2023. https://www.sra.org.uk/become-solicitor/sqe/qualifying-work-experience-candidates/ https://www.sra.org.uk/become-solicitor/sqe/qualifying-work-experience-candidates/ https://www.lawsociety.org.uk/career-advice/becoming-a-solicitor/solicitors-qualifying-examination-sqe/qualifying-work-experience-qwe https://www.lawsociety.org.uk/career-advice/becoming-a-solicitor/solicitors-qualifying-examination-sqe/qualifying-work-experience-qwe reviewed article 83 theme 2 impact on citizens advice and the local community the volunteer work undertaken by the students in this module undoubtably increases the capacity of citizens advice to provide advice and assistance to those who may not otherwise be able to access legal services.109 one student commented ‘i didn’t expect the amount that citizens advice deal with. i expected them to be all benefits. the diversity and amount they deal with – i didn’t realise that.’ another student said ‘i think it definitely showed how many people actually use citizens advice. because it’s just like a constant amount of people coming in. the staff there as well, i know that leslie had said that it makes their lives a lot easier and even being on the phone to people, they’ve got more people that can help.’ all three supervisors clearly shared a similar view to these students and commented that having the students at citizens advice meant that more clients could be dealt with. one supervisor referred to the students as a ‘valuable contribution’ and a ‘massive help’. two of the supervisors commented that the number of volunteers had reduced since the pandemic so having the students made a ‘huge difference’ and one felt that the students ‘filled a useful gap’. the supervisors commented that having students at citizens advice to answer emails, for example, allowed the supervisors to do other work and if clients could not be seen in the morning, students could deal with these 109 for a discussion on whether clinical legal education fills a gap in legal aid see e campbell (2014) ‘pro bono is great education for law students but they shouldn’t fill the gap left by legal aid cuts’ published in the conversation, https://theconversation.com/pro-bono-isgreat-education-for-law-students-butthey-shouldnt-fill-gap-left-by-legal-aid-cuts-34323 accessed 10 february 2023. see also donald nicholson ‘legal education or community service the extra curricular student law clinic’ (2006) web journal of current legal issues, http://www.bailii.org/uk/other/journals/webjcli/2006/issue3/nicolson3.html accessed 10 february 2023. https://theconversation.com/pro-bono-isgreat-education-for-law-students-but-they-shouldnt-fill-gap-left-by-legal-aid-cuts-34323 https://theconversation.com/pro-bono-isgreat-education-for-law-students-but-they-shouldnt-fill-gap-left-by-legal-aid-cuts-34323 http://www.bailii.org/uk/other/journals/webjcli/2006/issue3/nicolson3.html reviewed article 84 in the afternoon, increasing the overall number of clients advised and improving client service. this increase of capacity at citizens advice to advise and assist members of the community supports unmet legal need in the local community.110 indeed, a total of 300 clients were advised by northumbria students taking this module between academic year 2021 and 2022 and one of the supervisors commented that for many of these clients, it is their ‘last hope’. one supervisor remarked that one of the benefits of having the students at citizens advice was that clients were getting the advice ‘very much immediately’. informal feedback received from one client was that the students had provided her with exactly what she needed and that they were ‘brilliant’. the data suggests that the main aims of citizens advice in this module centres around social justice and the impact on the local community. in contrast, the aim of the module from a university perspective was more pedagogically focused. the module was introduced so students could gain practical legal experience and develop their professional skills.111 this is reflected in the student law office’s approach to taking on cases. where supervisors feel cases are too complex, too urgent, outside the area of their expertise or are not in line with the educational aims, they will not take the case 110 see, for example, jeff giddings ‘contemplating the future of clinical legal education’ (2008) griffith law review vol. 17 no. 1; stephen wizner, ‘beyond skills training’ (2001) clinical law review vol. 7 pp. 327-340; antionette sedillo lopez, ‘learning through service in a clinical setting: the effect of specialization on social justice and skills training’ (2001) clinical law review vol.7, pp. 307-326; warren h. binford (2008-09) ‘reconstructing a clinic’ clinical law review vol. 15, pp. 283. 111 lyndsey bengtsson, bethany a court and callum thomson, ‘the law in the community module at northumbria university: working in partnership with citizens advice as an effective educational tool’ (2021) international journal of clinical legal education vol.28 no.1 pp. 111-148. reviewed article 85 on.112 carpenter argues that clinicians who put pedagogical aims first however can still meet social justice goals and engage in meaningful transformative work.113 smyth and overholt also recognise that parties involved in clinical placements often have varying interests which can be challenging, but this can also provide the opportunity for authentic, deep and critically reflective relationships between the parties involved114 ultimately having a positive impact on citizens advice and the local community. it is important to note however that one supervisor did explain that having to spend time at the beginning explaining procedures, supporting students and answering a number of questions can be ‘demanding’ and ‘intensive’ which can put ‘big pressure’ on the supervisor. this could arguably affect the level of productivity in the workplace. on the other hand, the supervision could inadvertently act as continuing professional development for the supervisors. one of the supervisors commented that having the students at citizens advice acts as a ‘good refresher’ for the supervisors because ‘[we] need to remember what we need to explain about, who we are and what we do and the procedures we have.’ this could help develop and improve supervisors’ skills and competencies and in turn enhance the workplace and ultimately the service received by the local community. 112 student law office terms and conditions, section 2. 113 anne e carpenter ‘the project model of clinical education: eight principles to maximize student learning and social justice impact.’ (2013) clinical law review, vol. 20 no.1 pp. 39-94. 114 gemma smyth and marion overholt ‘framing supervisory relationships in clinical law: the role of critical pedagogy.’ (2014) journal of law and social policy vol. 23. pp. 62-822. reviewed article 86 theme 3 – student awareness of access to justice challenges one of the aims of the module is for students to develop an understanding of the access to justice challenges faced by their local community.115 smyth and overholt comment on the importance of students developing an understanding of the marginalising role that law and legislation can play and how impactful it is to meet the people, families and communities systemically affected by the law and legal systems. they suggest that meeting clients in person often catapults students into understanding or at least confronting, the human consequences of legislative and judicial choices.116 similarly, grose believes that the social justice mission of law clinics is not only to expose students to the legal system and its place and role in society, but also to challenge students to think critically about the system and their place in it.117 this critical approach was certainly reflected in the student focus groups where it was found that the experience raised the students’ awareness of current issues and many said they were surprised at how many people came into citizens advice. one commented that citizens advice was a ‘constant flow of helping people’. one student said that the module ‘personally opened my eyes to the real world in a sense’ and similarly, another student commented that the module gave them ‘a different perspective.’ they felt that ‘people are really struggling’ and one student said that the module helped them 115 lyndsey bengtsson, bethany a court and callum thomson, ‘the law in the community module at northumbria university: working in partnership with citizens advice as an effective educational tool’ (2021) international journal of clinical legal education vol.28 no.1 pp. 111-148. 116 ibid. 117 carolyn grose, ‘beyond skills training, revisited: the clinical education spiral’ (2013) clinical law review vol. 19 no.2 pp. 489-516. reviewed article 87 to develop qualities to ‘help make the world a better place’ and ‘attempt to change legal aid cuts.’ the supervisors also felt that the experience opens students’ eyes, encourages them to think about the community and makes them want to help people more. one supervisor commented on the fact that students could see how often individuals are not getting responses from authorities such as the city council and they struggle with accessing information online, often in relation to housing, council tax, rent arrears and debt collection. the supervisor also spoke about how the module helps students develop an understanding of the access to justice issues where it is caused by language barriers which can be ‘quite an issue’ particularly with regards to immigration cases for example. research has found that the monolingual criminal justice services in england and wales can limit access to legal advice, especially in relation to immigration issues; as well as general assistance and information to guide individuals through the criminal justice processes and rehabilitative interventions under the probation and prison services.118 it has been found that a number of individuals suffer anxiety regarding their immigration issues because they don’t understand procedures.119 the lack of support and information is linked to wider funding cuts in the criminal justice 118 gillian hunter, bina bhardwa, tamar dinisman, ania moroz, andrea anastassiou, anna lynall, ‘language barriers in the criminal justice system’ (2022) institute for crime & justice policy research chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.bellfoundation.org.uk/app/uploads/2022/03/language-barriers-in-the-criminal-justice-system.pdf (last accessed 10 february 2023). 119 ibid. reviewed article 88 system. hunter et al highlights the importance of raising awareness of language barriers and their implications for fairness and equality within the criminal justice system.120 their research identified five key areas in which policy and practice reforms are urgently needed to address the language barriers. one of these recommendations was: ‘ensuring that all written and web-based materials offering information and guidance about the criminal justice system are available in easy read formats, using ‘plain english’’.121 whilst at citizens advice, students can be involved in providing advice at drop-in sessions, they also undertake a wide range of activities, including producing legal information leaflets or factsheets for members of the public. students at citizens advice can make a positive impact in this area and are likely to have a particular inclination to do so having been exposed to the difficulties faced by individuals and thus having their awareness of access to justice challenges raised. one student commented that it is important to show people that pro bono work is a huge part of society. furthermore, some studies suggest clinical legal education and pro bono work can have a positive impact upon students and their willingness to undertake public service work122 and indeed students felt that when working at citizens advice, they 120 ibid. 121 ibid. 122 see deborah a. schmedemann, ‘priming for pro bono publico: the impact of the law school on pro bono participation in practice’, in private lawyers and the public interest: the evolving role of pro bono in the legal profession (robert granfield and lynn mather eds. 2009); sally maresh, ‘the impact of clinical legal education on decisions of law students to practice public interest law’ in educating for justice: social values and legal education (jeremy cooper and louise g. trubek eds. 1997). reviewed article 89 had ‘done something good’ and having had this experience, they were more likely to take part in pro bono work in the future. the general consensus amongst citizens advice supervisors and students was that they felt that they were positively helping the local community. however, a number of students commented that they felt they were not doing enough. for example, when they were referring someone onto a solicitor for legal advice, one student said they felt they were ‘shipping people around’ and the students felt this was ‘unsatisfactory’ and ‘not ideal’. they felt that they wanted to take the case further and help more. however, as speed and bengtsson note, from their experience as clinic supervisors, where a oneoff advice appointment is not sufficient to resolve the client’s issue, the advice will usually give the client the confidence, self-esteem and capacity to advance the case themselves.123 theme 4 – benefits and challenges of supervision the students benefit from having two supervisors in the law in the community module, one at citizens advice and one at northumbria university for their workshops, providing them with a dual supervision experience. smyth and overholt explore the differences between clinical and doctrinal approaches to legal education. amongst others, they observe that in a clinical setting teaching is generally conducted 123 lyndsey bengtsson and ana speed, ‘a case study approach. legal outreach clinics at northumbria university’ (2019) international journal of clinical legal education vol. 26 no. 1 pp.179215. reviewed article 90 one-on-one or in small groups. conversely, with regards to doctrinal approaches, teaching is usually conducted in medium/large classes and lectures.124 this one-onone experience with a clinical supervisor is conducive to what the student will experience in the workplace following university and it provides them with an opportunity to practice building these relationships at this early stage. smyth and overholt comment that these relationships can play a crucial role in the formation of students’ professional identity as students often take their clinic supervisor’s advice as reflective of a valid construction of the meaning of legal practice.125 even though the citizens advice supervisors have said that having the volunteers can be quite ‘stressful’ and ‘intensive’ until they have settled in, they generally felt that having the students at citizens advice, was a huge benefit, increasing their capacity and ultimately having a positive impact on the service received by the local community. in contrast, students raised the fact they felt like a ‘burden’ at times and they didn’t have a chance to talk to supervisors. one felt that their supervisor simply didn’t have the time to supervise students. however, these views differed between students who attended in the mornings and students who attended in the afternoon. a student who attended afternoon sessions, reported that they received ‘quite a lot of feedback from supervisors’. furthermore, although some students felt they were ‘dropped in at the deep end’, for example when they had to research areas of the law they had not 124 gemma smyth and marion overholt, ‘framing supervisory relationships in clinical law: the role of critical pedagogy’ (2014) journal of law and social policy vol. 23. pp. 62-82. 125 ibid. reviewed article 91 come across before, one student commented that their supervisors were ‘really good’ when checking the emails and provided them with constructive feedback. it seems therefore that supervisors were less able to spend time with students in the mornings as this was often a busy time for them. it is worth noting that since these focus groups took place, a different approach for students’ attendance times at citizens advice has been adopted and will be implemented in academic year 2022/23. rather than attending either in the morning or afternoon over the course of the module, the students will arrange their volunteer sessions each week, a week in advance, for a mutually convenient time. this will provide them with the opportunity to choose from a variety of times each week. it is hoped that this approach will not only provide them with a more diverse experience at citizens advice, but will also allow them to engage with supervisors more if they are attending at quieter times for some of their sessions. the data also demonstrated that there were some concerns in relation to feedback in regards the work the students conducted at citizens advice126 and in turn whether this translated into a fair assessment.127 this is unsurprising as law teachers report a 126 the students also received formative feedback on their workshop work but this concern was specifically in relation to their work done at citizens advice. 127 a recurring theme in clinical legal education literature is how students can be assessed fairly. see josé garcía añón, ‘how do we assess in clinical legal education? a “reflection” about reflective learning’ (2016) international journal of clinical legal education vol.23 no.1 pp.48-65; justine a dunlap and peter a joy, “reflection-in-action: designing new clinical teacher training by using lessons learned from new clinicians”, (2004) clinical law review, vol.11, pp.49-113. reviewed article 92 consistent criticism that students do not receive enough feedback.128 feedback is pivotal in clinical legal education and as hyams highlights it ‘is a powerful and effective vehicle for student learning.’129 effective feedback will reinforce good practice and provide a pathway for students to improve their skills.130 it will also motivate students.131 although the students in this module were each allocated a supervisor at citizens advice, they tended to seek advice and support during their volunteer work from all three of the supervisors. their allocated supervisor, however, was the one who completed the two feedback sheets. the feedback sheet contains a section for all the portfolio grade descriptors except reflection132 with a qualitative (with room for the supervisor to make comments) and quantitative aspect to each descriptor (numbers from 1 to 5) for them to rate performance (with 1 being poor and 5 being excellent). the first feedback sheet is completed at the midpoint and a second is completed at the end of the module.133 in assessing the portfolio at the end of the module, the university tutor draws upon the citizens advice feedback sheets in addition to all the work that is in the portfolio and work completed in the workshops. 128 david f chavkin, ‘matchmaker, matchmaker: student collaboration in clinical programs’ (1994) clinical law review vol. 1 pp.199-244; susan bryant, ‘collaboration in law practice: a satisfying and productive process for a diverse profession’ (1993) vermont law review vol. 17 pp.459-531. 129 ross hyams ‘student assessment in the clinical environment – what can we learn from the us experience.’ (2006) journal of clinical legal education accessed at file:///c:/users/kdqc2/downloads/79-article%20text-160-1-10-20140718%20(2).pdf (last accessed 27 february 2023). 130 ibid. 131 elizabeth molloy and david clarke, 'the positioning of physiotherapy students and clinical supervisors in feedback sessions', (2005) focus on health professional education, vol. 7, no. 1, pp. 79 90. 132 the grade descriptors include knowledge and understanding of the law, research skills, oral and written communication skills, case and task management and strategising, commitment and teamwork. 133 these feedback sheets are emailed to the student and to the university tutors and the students are asked to reflect on their performance in light of the comments made. reviewed article 93 several students expressed concern about their feedback sheets if they spoke to another supervisor at citizens advice a lot more than their allocated supervisor who completed the sheets. one student commented ‘i feel like it would be fair for us to be judged by the supervisor that we go to the most, rather than the ones we were assigned to.’ another student felt the sheets were ‘quite limited’ and wanted more detailed feedback. concerns were also expressed by the citizens advice supervisors, notably that they felt they the feedback sheets needed amending as they did not feel that they were working as well as they could. one supervisor gave the example that they are required to comment on the students’ knowledge and understanding of the law, however at the mid-point they feel that sometimes students are often still understanding the basics such as interviewing technique and research skills and not yet been able to demonstrate their knowledge. a change has been implemented for the 2022/2023 academic year so that supervisors will now meet with students at the mid-point and conduct a feedback conversation. this aims to encourage learning to reflect and motivate them to improve.134 the conversation will enable the students and the supervisor to reach a shared view on what improvements can be made. moving away from a written feedback sheet to a feedback conversation may also lead to a greater understanding by the student on their performance as they will have the opportunity to ask questions. given the 134 peter cantillon and joan sargeant, ‘giving feedback in clinical settings’ (2008) accessed at https://doi.org/10.1136/bmj.a1961 (last accessed 27 february 2023). https://doi.org/10.1136/bmj.a1961 reviewed article 94 accusation in the literature of subjectivity regarding assessment,135 it is acknowledged that each meeting must adopt the same structure so that the same areas are discussed. it was agreed that citizens advice would use a pro forma feedback document during the meeting to ensure consistency. supervisors will also consult each other in relation to each student before the feedback meeting and inform the students that this consultation has taken place. the onus will be on the student to record a note of the meeting afterwards and place that record on their portfolio. in the focus groups, students also commented that they felt there was a lack of knowledge exchange between university supervisors and citizens advice supervisors. they commented that their university supervisors appeared ‘surprised’ and ‘confused’ at times when they explained what they did during their volunteer sessions and suggested that it could help if the university tutor attended citizens advice to ‘see what goes on’. this module is intended to have a dual supervision model which, as we have seen, has benefits, and having the university supervisor attending citizens advice would not be feasible, nor would it be necessary. moving away from the written feedback sheet to a feedback conversation and allowing the students to record this themselves to document in their portfolio is likely to help alleviate concerns that there is a lack of knowledge exchange between the supervisors. a further change which was implemented for the 2022/2023 academic year was having 135 ross hyams, ‘student assessment in the clinical environment – what can we learn from the us experience.’ (2006) journal of clinical legal education accessed at file:///c:/users/kdqc2/downloads/79-article%20text-160-1-10-20140718%20(2).pdf reviewed article 95 a supervisor from citizens advice attend the induction lecture at the university at the start of the module. this was intended to not only allow students to meet the supervisor and ask them any questions, but also introduce them to this unique dual supervision model early on and provide a sense of partnership and collaboration between the university and citizens advice. conclusions this research contributes to the knowledge and practice on the value of this model of clinical legal education from both a student and citizens advice perspective. supporting previous research that has been conducted in this area; the results demonstrate that there are clear pedagogical benefits to the students, benefits to citizens advice and the local community. this research demonstrates that the model provides a rich and dynamic learning experience for law students, developing a range of professional skills. it also gives them first-hand experience of advising those who are vulnerable and who have complex needs, whilst simultaneously gaining that insight into the access to justice challenges faced by the local community. there are also benefits to citizens advice and the local community as the students increase their capacity so that they can advise and assist more clients. since the module began hundreds of clients have been helped by the students. in addition to this, supervising the students inadvertently acts as continuing professional development for the supervisors, benefitting the supervisors personally, citizens advice as a whole and subsequently the local community receiving the services. the partnership reviewed article 96 between the university and citizens advice engages students in valuable work which fills an unmet legal need in the community in which it operates, an approach to clinical legal education which as king and jones point out is ‘well suited to the ongoing climate of austerity prevailing not just in the uk but many other countries.’ 136 indeed, some students do not stop their volunteering at the end of the module, instead choosing to stay on at citizens advice bringing value beyond the timescales of the academic year. smyth and overholt describe supervision in a law clinic setting as ‘immensely gratifying, particularly when supervisors are able to participate in the development of the next generation of social activist lawyers’137 indeed, the law in the community supervision model has proven very effective. the combination of dealing with live clients under the supervision of citizens advice and contextualising and reflecting on this with their university supervisor has challenged the students to think about their place in the legal system and we have seen that having had this experience, the students feel they are more likely to take part in pro bono work in the future. it has not been without its challenges, but the authors believe the new approaches in relation to supervision and feedback implemented in the academic year 2022/23 will address the previous concerns raised by the students, enhance their educational experience, and ultimately engage in transformative and impactful work for the local community. 136 christopher king and david jones ‘cui pro bono? working on partnership: a possible blueprint for the future of clinical legal education’ in linden thomas, steven vaughan, bharat malkani and theresa lynch (eds) ‘reimagining clinical legal education’ (hart publishing, 2018) pp. 25-46. 137 gemma smyth and marion overholt ‘framing supervisory relationships in clinical law: the role of critical pedagogy.’ (2014) journal of law and social policy vol. 23. pp. 62-82. masters of our destiny – the integration of law clinic into post graduate masters provision karen clubb* increasingly students are looking to their undergraduate law degrees to do more than provide them with a qualification which acts a ‘stepping stone’ to further legal vocational training� the provision of law degrees across the sector includes both qualifying and non-qualifying degrees where the study of law is combined with other subjects, vocational and non-vocational� not all students who obtain a qualifying law degree will continue to the vocational stage of training,1 but all degrees need to address the employability agenda, and law students in particular need to consider future career aspirations early on in their degree� clinical legal education as a teaching methodology has received considerable academic attention for the benefits student engagement can yield in enhancing the overall student learning experience� this paper briefly reviews the benefits of undergraduate clinical legal education (cle) and considers the benefits of developing this at post graduate level in a masters in law programme� this paper considers the distinction between the two approaches and the need for a different approach to the provision of a law clinic module within a postgraduate law masters programme, identifying a possible model of delivery� the paper further presents some of the potential challenges in developing and maintaining this provision over time and attempts to offer some insight into how these have been considered in the development of a postgraduate law clinic module at the university of derby� clinical legal education – undergraduate experience in the last ten years there has been a significant increase in the integration of clinical legal education (cle) into the undergraduate law curriculum�2 the definitions of cle are broad and include participation of students in legal service provision as well as the use of simulated exercises and tasks� the definition of cle offered by grimes defines cle as: * senior lecturer in law, university of derby 1 cole strategic research unit ‘trends in the solicitors profession annual statistical report 2006’ 2 grimes r�, brayne h�, ‘mapping best practice in clinical legal education’ ukcle october 2004, para 3�6 395 a learning environment where students identify, research and apply knowledge in a setting which replicates, at least in part, the world where it is practised… it almost inevitably means that the student takes on some aspect of a case and conducts this as it would… be conducted in the real world� 3 other definitions seek to capture the pedagogic approach: exposure to real or realistic situations in which the student is required to address legal and related matters, taking responsibility (individually or collectively) for the resolution of problems and the associated tasks; coupled with the opportunity for reflection on issues, means of resolution and task performance, as an integral and structured part of a course of study�4 the provision of cle across the sector is varied as are the models of practice supporting this experiential learning provision which promotes student learning by participation in the provision of some aspect of legal service/work�5 only a few institutions are able to offer integrated in house law clinics and the experience of ‘live client work’,6 other institutions rely on community projects, often termed ‘street law,’ as the basis of cle� although cle is valued as an experiential learning model it is not currently a mandatory requirement of qualifying law degrees in england and wales�7 the joint academic stage board (jasb) do not stipulate any particular teaching and learning methodologies, these are left for determination by the institutional providers�8 this is also the case with the legal practice course (lpc), which whilst specifying the minimum contact and teaching hours for core subjects, and stages of study, does not mandate that the learning be derived from participation in a work based learning environment and professional practice�9 although cle is not mandated as a component of a qualifying law degree, its inclusion in the undergraduate curriculum was considered by the aclec report as far back as 1996� this highlighted the need for provision of a “broad and intellectually demanding legal education” which it regarded as “fundamental to our commitment to constitutionalism and an extension of the rule of law�” it identified the need for an awareness of the “ethical and humanitarian dimensions of the law as an instrument which affects the quality of life,” recognising what it saw as the fundamental democratic value of the law, and of the need to impart and preserve the common core professional values and skills� the report clearly recommended as a vision for the future, a reduced demarcation between the academic and professional stages of training, integrating and instilling a commitment to “the rule of law, justice, fairness, and high ethical standards�”10 for institutional providers the 3 grimes r�, ‘the theory and practice of clinical legal education’ in j� webb and c�maugham (eds�) teaching lawyers’ skills (1996) at p 138� 4 browne s� (2001) a survey of pro bono activity by students in law schools in england and wales law teacher vol 35 pt 33, at 34� 5 plowden p�, ‘model standards for live-client clinics’ clinical legal education organisation (cleo) 1995� 6 marson j�, wislon a, m van hoorebeek�, ‘the necessity of clinical legal education in university law schools: a uk perspective�’ available at http://www�northumbria�ac�uk/sd/academic/law/entunit/norlawpress/ jour/ijcle_2/ijcle_aug05/6633812/ date accessed 26/06/2012 7 joint academic stage board handbook, september 2011, appendix m� 8 joint academic stage board handbook, september 2011, para 2�2 9 sra’ information for the provider of legal practice courses’, education and training unit, may 2012� available at http://www�sra�org�uk/lpc/ 10 the lord chancellor’s advisory committee on legal education and conduct, ‘the first report on legal education and training’(aclec) london 1996, paras 1, 1�14, 1�15, 1�19 396 international journal of clinical legal education issue 19 396 provision of cle enables these values to be promoted in a way that is meaningful and derived from real and personal experience and participation of students in a work based and professional context facilitating the development of skills and values relevant to and necessary for professional practice� since the aclec report there has been a greater integration of cle into undergraduate curriculum and the provision of law clinics and to a limited extent there has some movement towards the merger of the academic and vocational stage� some institutions now offer integrated pathways of study that combine undergraduate and vocational stages of study� however the changes in the funding of higher education render the ‘employability’ agenda a more critical consideration regardless of whether students go onto the later vocational stage of legal training or take the route of further postgraduate study of law� equally postgraduate provision also requires students to have ‘an eye’ on the employment context to convert their enhanced academic study into clear transferable skills that are relevant and valuable to future employers and to demonstrate they are in touch with the employment context in which theses skills will be delivered� the experiential learning model the integration of cle and experiential learning at undergraduate level remains firmly grounded in addressing the educational goals relevant to this academic stage of study�11 the engagement within a work-based learning context affords students the opportunity to develop their knowledge of the substantive law alongside their knowledge of the relevant legal processes, as well as developing generic and transferable skills under supervision, equally relevant to those students focused on careers outside law�12 experiential learning is recognised as promoting more effective, deeper and contextualised learning, promoting insight into the professional values, and can illuminate as to the impact of ‘policy’ and the concepts of what some term ’social justice issues’�13 students are also able to develop an understanding of the commercial context and pressures relating to the delivery and operation of legal services� the experiential learning associated with cle is highly motivating and rewarding for learners,14 taking them beyond the classroom where learning from ‘action’ is rooted in ‘real life’ situations� it also affords students the chance to see the tangible benefits to their contribution to both individuals and the community� each learning experience remains unique with students taking a greater role and responsibility for their participation and reflection on their learning, preparing them for the ethos of continuing professional/ skills development�15 in the academic environment the context of theory and practice – legal knowledge and participation in the legal process are more often divorced from each other or limited to specific simulated skills, tasks or problem orientated assessment involving other students� experiential ‘law clinics’ places 11 plowden p�, ‘model standards for live-client clinics’ clinical legal education organisation (cleo) 1995, see appendix 4 for suggested learning outcomes� 12 the lord chancellor’s advisory committee on legal education and conduct, ‘the first report on legal education and training’(aclec) london 1996, para 1�11� 13 plowden p�, ‘model standards for live-client clinics’ clinical legal education organisation (cleo) 1995, para 1�1-1�4 14 cruess r�l�, cruess s�r� ‘teaching professionalism: general principles’ medical teacher vol 28(3) (2006) 205208 15 rees c�, forbes p�, kulber b�, ‘ student employability profiles a guide for higher education practitioners hea ( september2006) 397 masters of our destiny – the integration of law clinic into post graduate masters provision learning in a realistic, genuine and dynamic context offering potentially rich insights into the legal values and norms� the reflective process, which accompanies the experiential learning model16 ensures that students are more highly attenuated to the learning process and their learning needs� experiential learning can be instrumental in offering clarity on future career options� additionally students are further motivated by the perceived value in the engagement with services which have an impact on and offer a value and contribution to the wider community� given the advantages of experiential learning in the context of cle at undergraduate level, the need for students to develop transferable work skills linked to the attainment of generic and subject specific graduate profiles; one wonders why this has not been more readily replicated in postgraduate masters programmes in law� postgraduate masters clinic masters level study is a distinctly different educational provision from undergraduate legal studies, not least as postgraduate law students at masters level may not in every case have an undergraduate law degree, and may indeed have a law degree from a different jurisdiction� for some students their work experience and employment history may secure entry to the programme� masters level provision is a more intensive time constrained pathway of study, demanding a greater degree of learner autonomy and critical reflection� postgraduate study is undertaken with a view to developing niche areas of knowledge and expertise in a distinct and specific programme of study offering intellectual challenge� increasingly programme selection is made in light of anticipated future career pathways and employment opportunities� masters study aims to develop advanced research skills through engagement with a critical analysis and examination of substantive areas of law and theoretical and doctrinal approaches to the selected area� at masters level this requires further consideration of contemporary and emerging approaches to the relevant legal issues as well are a more detailed critique of their rationale and effectiveness� students are expected to demonstrate a greater degree of originality in their work in preparation for possible further doctrinal study� a crucial feature of masters level study is the examination of both the substantive and procedural aspects of the law, and a wider consideration of the socio-economic and political context in which the critical legal issues are situated� students need to draw extensively on academic discourse, empirical research and normative approaches requiring consideration of issues beyond domestic jurisdiction, drawing on the international context and comparative approaches� generic transferable skills relate to the advanced research undertaken and the degree of independent learning accompanied by the ability to critically reflect on a wide range of concerns and conceptualisation of doctrinal and theoretical models to communicate effectively the key issues, propose solutions, and present research findings� for law clinic to be applicable at postgraduate level given the nature and focus of study, the context in which current undergraduate law clinic experiential learning is offered may not yield appropriate opportunities to facilitate the depth of research and critical reflection commensurate with this 16 clubb�, k� ‘using reflection to enhance work-based learning: towards professionalism’ lili conference warwick (2008)� 398 international journal of clinical legal education issue 19 stage of study� the experiential model of learning by doing offers a narrow range of activities and opportunity for practical skills (interviewing, letter writing, drafting) for student engagement under supervision which do not match the required research skills focus relevant to postgraduate study� an important consideration for all undergraduate cle experiential law clinics is that participating students actively contribute to service delivery, delivering a tangible benefit� this is crucial for institutions such as the university of derby that rely on a placement provider type model of provision and is a relevant consideration in developing a clinic module at postgraduate level� at postgraduate level the student process of participation may vary but the clinic experience still needs to deliver benefits for the students and the legal service/ provider� for postgraduate clinic provision the opportunity for experiential learning needs to relate to some form of research activity and service audit� the participation in these areas still requires participation in practical tasks, such as interviewing, and competency in generic skills providing the platform for participation and student engagement� the needs of postgraduate students regarding law clinic provision are very different calling into question the appropriateness and viability of the conception of law clinic at undergraduate level and the experiential model which underpins this� the narrow experiential context (professional practice) and practical tasks undertaken by students in undergraduate law clinics are not likely to deliver limited opportunities for reflection and identification of research opportunities relevant to postgraduate legal study� indeed the service provision in which the experiential law clinics are based may preclude the resources, time and support needed to meet postgraduate student needs in practice� the starting point is to attempt to capture the benefits of learning in the context which experiential learning affords within a model or approach that defines the relevant context for postgraduate law clinic and the process of learning and learning goals� the model adopted will then inform as to the appropriate selection of the relevant learning contexts and the selection of appropriate partner providers� whatever the model of postgraduate provision selected, employability remains as crucial as to the undergraduate experience, as does the need to ‘integrate doctrinal knowledge with a fuller clinical experience throughout the student journey’�17 postgraduate clinic provision can capitalise on the knowledge that students learn most effectively when their learning is context driven, related to current issues and challenges and supported by the knowledge of experts and those with experience in the field� to this end aspects of ‘practice’ as a form of cle are already incorporated in the postgraduate curriculum by integrating the contributions of practitioners and researchers into module delivery� this offers a ‘more intensive, mutual and fruitful partnership which should ultimately break down the distinction between clinical and traditional teaching sessions�’ 18 the clinic module merely shifts the focus and balance of these elements and the context from cle in the classroom to a work based context which offers a richer and broader learning experience that is potentially more meaningful� 19 17 hall j�, kerrigan k�, ‘clinic and the wider law curriculum’ 16 int’l j� clinical legal educ (2011) 25, 25� 18 hall j�, kerrigan k�, ‘clinic and the wider law curriculum’ 16 int’l j� clinical legal educ (2011) 25,30 19 hall j�, kerrigan k�, ‘clinic and the wider law curriculum’ 16 int’l j� clinical legal educ (2011) 25,34 masters of our destiny – the integration of law clinic into post graduate masters provision 399 400 international journal of clinical legal education issue 19 a possible model of delivery – ‘action research’ the author proposes consideration of an action research type model as a basis for the provision of postgraduate law clinic� this has history of use and application in the context of education and business by practitioners to examine and audit the effectiveness of service provision and the methodology of practice and its effectiveness� the aim of action research has been to seek to critically evaluate an aspect of professional practice to offer further insights and improvements on both the context of an identified area of professional practice and the service area in which it is located� the action research model goes beyond the immediate skills focus as to what is done and how, by seeking to critically evaluate the rationale for the practice and its effective application� the model merges both practice and theory and in so doing requires a more holistic consideration of the relevant professional and service context and its underlying values� the experiential model is highly dependent on the quality of the student’s ‘practical performance’ to determine the overall learning experience in terms of the opportunity for participation and observation by the students to facilitate learning� the action research model requires access to the identified professional or service context to ‘trigger’ the identification of the research project and the identification and problematization of critical issues� the student’s participation in the subsequent research project /process yields a potential end gain for the service and the student, whilst simultaneously offering the capacity to reconstruct the role of the student in their clinic experience, to one which compliments and support the attainment of postgraduate masters level learning outcomes� the action research model is traditionally associated with being a stimulus for organisational change and is based on the concept of collaborative team working to bring together a critical investigation of theory and practice through critical reflection and the application of selected research methodology� the approach is both reactive to the current position and practice as well as proactive in seeking to investigate and to further inform change� as a model of practice for postgraduate law clinics, it allows flexible accommodation of critical reflection on current legal issues, and can readily accommodate ‘objective and naturalistic forms of enquiry�’ 20 the model aligns well with the increasing trend to forge links between the academic community and higher education institution’s, public bodies and legal service sector� the latter have the expert knowledge of the law in practice and the former the experience and expertise in research necessary to investigate and scrutinise the value of aspects of practice or service provision� the model aligns theory and practice21 in particular to address the wider context in which the law operates, comparatively and beyond national borders addressing ‘matters such as legal theory, interdisciplinary team working, ethics, issues of internationalisation, and culture and gender’, as appropriate� 22 additionally the identified features of action research identified by stringer as ‘change, reflection, participation, inclusion, sharing, understanding, repetition, practice, community’ are relevant generically to the employment, context, where team working and a participatory and inclusive approach to project management and research are essential� 23 the action research approach offers 20 stringer e�, action research in education (2nd edn pearson press 2008), 10� 21 trehan k�, pedler m�, ‘research and evaluation in assessing outcomes and impacts in action learning’ action learning: research and practice, 7(1) (2010) 1, 1� 22 mackinnon j, ‘problem based learning and new zealand legal education 3 web jcli [2006] at 13 <http://webjcli�ncl�ac�uk/2006/issue3/mackinnon3�html> date accessed 20/06/2012 23 stringer e�, action research in education (2nd edn pearson press 2008), 33� 401 flexibility in selection of research methodology and allows for the merging of a consideration of the legal issues with the context of service delivery, organisational structure, strategic decision making, offering insights into professional values within a ‘community’ context� the action research framework allows for scrutiny of existing practice to find a more positive solution and improved legal and wider service responses to client need and the presenting legal issues�24 it also affords the opportunity for students to demonstrate leadership skills in the implementation of the team research and project management� the aim is for students to work in partnership with the clinic partner, without acting as consultants, to ensure that the research is meaningful and appropriate to the creation of relevant knowledge and originality and delivers meaningful outcomes for the clinic partner� what is critical for postgraduate study is that research derived from a practice setting allows for the development of originality of thought to provide a theoretical frame work to pragmatic external processes that may drive behaviour�25 the action theory model also creates possibilities for the development of theory from practice but additionally shares characteristics with problem based learning, since some of the solutions sought are derived from and are driven by the need to seek resolutions to a particular process, practice concern or problem�26 pedagogic advantages of action research model from a pedagogic perspective the action research approach has much to offer� research indicates27 that this promotes deeper learning across all phases of the action research process with learners better placed to resolve service/ legal problems, dilemmas� further, learners gain a deeper understanding of the learning process linked to on-going critical reflection and continuous deeper rather than episodic learning� the problem based and reflective elements of this model require reflective participants; ‘those who are sufficiently conceptually literate to read and critique key aspects of the social order and to understand their own and others’ status and role,’28 an essential skill for team work and project management� continuous learning and development are crucial to continuous professional development, relevant to both academic and legal practice alike� the offering of a law clinic experience at masters level offers the opportunity to bring alive the rather dry area of legal research methodology by providing a realistic context in which these skills can be learnt, applied and developed� rather than considering hypothetical situations at a distance, students are immersed in a real life context where they have to conceive a research project, design and design, critique and implement this in partnership with external agencies/ bodies� the work based context allows undertaking of data collection and analysis, production of research reports 24 takis karallis & eric sandelands (2011): building better futures: leveraging action learning at kentz engineers & constructors, action learning: research and practice, 8:1, 57-64� the authors here presented learning linked to the corporate context in finding new business solutions and to enable better responses to customer need� 25 takis karallis & eric sandelands (2011): building better futures: leveraging action learning at kentz engineers & constructors, action learning: research and practice, 8:1, 57, 63 26 mackinnon j, ‘problem based learning and new zealand legal education 3 web jcli [2006] <http://webjcli�ncl�ac�uk/2006/issue3/mackinnon3�html> date accessed 20/06/2012 27 skipton leonard h�, and marquardt m�j�, action learning: research and practice vol� 7, no� 2, july 2010, 121,126� here the authors cite the research of von schuyver 92004) on this issue� 28 mackinnon j, ‘problem based learning and new zealand legal education 3 web jcli [2006] at 18 <http://webjcli�ncl�ac�uk/2006/issue3/mackinnon3�html> date accessed 20/06/2012 masters of our destiny – the integration of law clinic into post graduate masters provision 402 international journal of clinical legal education issue 19 within time constraints, demonstrating an on-going sensitivity and consideration of the relevant ethical, social, policy and context and constraints of the partner institution service delivery� further the experience places student in a better position in terms of up skilling them for future doctoral studies and places the advanced research that may have intimidated many within reach of their academic progression� students who engage in research that has a worthwhile impact within the dynamics of live research environments connected to service provision are more likely to be enthused and motivated to further doctoral research and study� they are also more confident and better placed in terms of their skills development to pursue this or to transfer these skills to an employment arena� practical considerations students undertaking a law clinic experience do so for their own personal and academic development, whether the provision is assessed or not� provision at undergraduate level may serve to boost the student cv, may be voluntary and non-assessed� at masters level this law clinic provision is likely and arguably should always form an assessed part of the student programme of study, if the action research and the partnership model advocated in this paper is followed� the selection of projects and placements requires careful consideration and negotiation to ensure that the clinic provision at postgraduate level secures a student experience tailored to meet the learning outcomes of postgraduate study� the implementation of the action research model will require scrutiny of client files, access to documentary evidence from a placement provider, and may involve interviews of service users and staff team� these activities require a robust protocol for the management of the research process and associated ethical issues arising� this will apply to the research design and methodology and ethics approval processes required by the academic institution and the provider, but additionally to the implementation and management of these throughout the life of the project which is the basis of the clinic provision� a close partnership is required between the higher education institution and the providers to secure and manage this throughout� as with undergraduate provision the challenge associated with this kind of experience is in firstly securing the placement opportunities that align with meeting the demands of postgraduate study� this proactive process may entail partnership projects involving a number of students at any one time, where the project operates over a longer period than the individual student placement and modular assessment� students may make an active contribution by engagement with the research projects, completing reflective reports on their learning and contribution, adducing work to evidence this� additionally as with undergraduate provision clear protocols need to be in place to oversee arrangements and clarify areas of responsibility and the degree of supervision and support needed by both the student and the partner provider� students also need an induction process,29 which may include a determination of the student’s skills level, written and oral communication, interview technique, research skills, to ensure students are adequately positioned to be able to gain from the placement and function effectively whilst doing so� 29 plowden p�, ‘model standards for live-client clinics’ clinical legal education organisation (cleo) 1995�para 20�1�1� 403 our approach the distinction between undergraduate and postgraduate clinic is exemplified in a number of ways, not least the different learning outcomes� at masters level these require students to demonstrate an understanding and critical evaluation of the theoretical concepts and frameworks relating to a professional/ legal practice, reflection and research on a substantive area of law / aspect of the law or legal process or service relevant to the context of their overall pathway of study at postgraduate level� the learning outcomes contextualise the approach to learning and the focus and distinction of postgraduate study to ensure that the criticality and research are linked to a furthering of student knowledge and relevant to the focus of their postgraduate study� this is balanced with the needs of the partner providers and their conceptualisation of the issue which forms the focus of the postgraduate clinic research/ activity� the experience of law students to date has been to engage in live court observation with a view to developing a formal research project in conjunction with partner providers, still at the stages of inception� students undertook a comprehensive literature review and through discussion with practitioners and academics identified possible areas of research� as a research activity, students also had to present an outline title and research proposal which they submitted for ethics approval� this required students to select an appropriate methodology and to consider the application and viability of this in practice� additionally students selected an appropriate area of substantive law and through observation of legal proceedings together with further reflection and research of specific aspects of legal process and procedure, considered comparatively with other jurisdictions and where appropriate, the international context� students were offered regular support and opportunities for formative feedback on the progression of their clinic experience and importantly clear guidance on the expected standards of academic engagement required for postgraduate level study� the response from students was positive in that they felt able to apply in practice what they had learnt in their core legal scholarship modules in the context of delivery of legal services affording them a greater appreciation of the context and the relevant ethical issues� students can readily adopt a comparative element in their research, benefitting home, eu and international students thus promoting inclusion� the module was particularly instructive in merging practical observation which stimulated reflection and curiosity, comparison and a critical and questioning approach� this then motivated students to research identified areas with interest and enthusiasm derived from real factual contexts� students became aware that research is a natural, rather than separate, feature of reviewing service delivery and the substantive law and legal process in practice� the module brought alive the classroom based research activities which can often seem divorced from context and lack the interest that situated observation of ‘real life cases’ and proceedings deliver� conclusion for the future it is envisaged that partnerships will be developed with external organisations, such as the crown prosecution service, local authorities and charitable organisations, to develop and support their outreach work, undertake research related to an aspect of their function or service delivery, or aspect of service audit� this may include research that focuses on the impact of their service to their clients, for example relating to an aspect of victim participation or victim impact in the criminal justice process� alternatively this could also involve research related to the legislative masters of our destiny – the integration of law clinic into post graduate masters provision 404 international journal of clinical legal education issue 19 framework relating to the exercise of a legal duty or function by the stakeholder partner and a review of the model of practice and decision making process and factors impacting on this� whatever the core research activity and project forming the basis of the student participation, this will require a sensitive balancing and positioning of service and student needs and expectations, to ensure all are adequately met� the structure of the masters clinic provision presented, offers clear advantages in placing learning in the context of professional practice and service delivery, providing a valuable source of ‘real world’ learning and engagement� this context has the potential to enthuse and motivate students, adding to the quality of their student learning experience� a note of caution does however need to be sounded, at postgraduate level the period of study is arguably more advanced and intensive, and operates within a shorter time frame� students come from more varied backgrounds, with different learning experiences and cultural sensitivities� the organisation of the clinic module and the support integrated into this at induction and on-going, may prove more critical at masters level for the partner organisation as well as for the students� the management of the law clinic placement is arguably high risk for all involved, since postgraduate level learners are expected to operate with a significant degree of autonomy� this raises a different set of a concerns for clinic at masters level, given the commercial sensitivity and confidentiality pertaining to the provider’s processes and data, necessitating clear guidelines to students and robust protocols to manage the central research activity and the clinic opportunity� this paper has considered some of the similarities in the provision of law clinic experiences as a form of cle at undergraduate and postgraduate level, and has sought to highlight the differences and distinction between the two forms of provision� these differences justify the adoption of a different model of development and implementation of the postgraduate law ‘clinic’ experience� the action research model as a starting point, most closely aligns with the aims and expectations of postgraduate legal education and partner providers and capacity to support this� whilst some have considered the wider integration of cle across the whole of the undergraduate curriculum,30 this is not so essential at masters level� the focus of study is more conceptual than skills based, and students by the nature of their studies are expected to consider issues holistically and comparatively more readily addressing the contextualisation of the law in practice, which is the key impetus at postgraduate level�31 the integration of cle at masters level across the programme is however satisfied by inclusion of the perspective of ‘experts’ and those with ‘experience’ in appropriate settings, who can bring a unique perspective to the relevant issues� the greater focus on research informed teaching also supports this approach� this prevents reliance on the postgraduate clinic experience as the sole form of cle, since it is prone to becoming ‘hostage’ to the on-going support of external organisations, whose priorities and commitments may not secure on-going and long term postgraduate clinic provision with the same provider�32 30 hall j�, kerrigan k�, ‘clinic and the wider law curriculum’ 16 int’l j� clinical legal education (2011) 25,29� the authors here considered the wider application of cle into the undergraduate law curriculum but did not advocate this stating ‘we do not advocate that students learn from clinical problems exclusively.simply thatthey sometimes do’ 31 grimes r�, brayne h�, ‘mapping best practice in clinical legal education’ ukcle october 2004, para 3�3�2 32 grimes r�, brayne h�, ‘mapping best practice in clinical legal education’ ukcle october 2004, para 3�5 special issue: adrian evans festschrift some thoughts . . . maria, family & friends thank you all for being adrian’s colleagues, collaborators and friends. a few things you may not know . . . . about our adrian, plus some family and friend thoughts. clinical practice on the home front . . . . one morning as i’m rushing out the door at 5.30am, adrian says “i’m working from home today how about i do spaghetti bolognese for dinner?” “sounds great. how about you put some spinach in it? there’s lots in the vegie garden just make sure you soak it and wash it several times the snails like to hide in it.” many hours later, we sit down for dinner, sprinkle the parmesan, take our first mouthful . . .. crunch, crunch . . . . have we all broken a tooth at the same time? the boys and i look at each other, pause, and then push our bowls to the centre of the table. “just what is in this dad?” the search begins. . . . . dozens of tiny snails.” come for dinner sometime!!! you are most welcome. ethics – on our weekends! over the years when geelong has been in the finals, adrian heads off to monash for the staff grand final football morning tea or whatever it is you have. dressed to kill in borrowed cats jacket, scarf, cap, badges. we need to let you know that he knows nothing about footy. he’s a total fraud! we used to let him come with us. he would sit in the stand reading the age and then the saturday paper, every now and then, trying to tell us stories about corruption or similar. a bit later, after noticing the ads around the ground, would come a lecture about alcohol and gambling advertising. of course, we all totally agreed but “would you just shut up for an hour or so? the game is on a knife’s edge, geelong is behind by 2 points!” a bit later after seeing a screen shot of the afl ceo, we would hear another mini lecture about the corporation that is the afl . . . and being corrupted by gaming companies! and yes, again we agree, for sure, but could we just watch the game please? so now, we don’t let him see the fixture, we don’t tell him how much our memberships cost we just head off. he does however, pay for all the fun cats clothing we buy for our grandchildren! and there’s a little ps: this year on saturday mornings, during the aflw, i would have abc radio on, and would often have to say . . . “please be quiet . . .. it’s the outer sanctum program.” “what’s that?” he would ask! maybe to help adrian live with a feminist . . . . . he’s in a men’s group and for today the blokes collectively sent this message: adrian founded our men’s group 30 years ago so we could all reflect and support each other on the broad range of experiences of being male in a changing world. he is committed to taking action, driven by social justice and responsibility, including reducing the human environmental impact . . . . his house is almost independent from the grid! it will be when he puts in a wind turbine! he is disinterested in competitive physical pursuits unless facing the challenges of a hike. indeed, he is seldom happier than when he’s in the bush, with or without his gastronomic delight – tinned spam! some messages to adrian . . . . adrian’s friend peter . . . . when the definitive research is done on the history of the man hug, adrian will rightly be credited as a pioneer.  although more commonplace now, man hugs could be fairly confronting in those early days.  adrian had the knack of delivering the right combination of affection and force. i even think that occasionally, when there were a few quiet cracks of the vertebrae, adrian’s man hug would realign the spine and improve the energy flow through the chakras. quite a gift!  one of many he will bring into this new season of life. every blessing mate and a big hug. adrian’s friend ray . . . . . adrian it has been a privilege having you as a constant and wonderful friend for more than 40 years. a friendship spanning interests in ethics, world affairs, family matters, and especially what is happening to our planet. your integrity is beyond doubt and your compassion for others, an outstanding virtue. we look forward to seeing more of you now! adrian’s sister caroline says . . . . adrian you give so much of yourself to everyone with whom you come into contact. you are a fantastic father and grandfather and a great brother to me – always listening and affirming of my abilities. i love you very much and am very, very proud of you. adrian’s brother richard . . . . adrian stay strong in your knowledge of truth. and lastly, a few messages from ours, and jenny’s, boys . . . impressive young men . . . . hugh there’s lots i could say about dad as a role model, a teacher, someone who cares a lot about those less fortunate in life. growing up, dad’s sense of humour was right out of the “dad’s sense of humour” handbook, in fact he could have published his own edition, alongside his law books – maybe actually making money from a book. i always hoped i would bypass this generic trait but i realize this humour is part of me too. i’m very proud of my dad. dan dad i mostly remember you looking at me sternly over the top of your glasses, saying in a deep voice “daniel!” i am very proud that you have led a life walking your talk for the good of our society and our planet. james dad you always tell us to vote for the greens but you were seen last saturday handing out how to vote cards for labor? i think you are a most ethical professor unless you find out that aldi is owned by woolworths and then you will be at a loss with nowhere to shop because poker machines are owned by everyone! dad you remain for me the gold standard for doing the right thing in the world! angus dad you taught me a lot, not the boring stuff, but rather the important things – appreciation of good science fiction, trees, the environment new science, feelings. i am very proud of you! and from me . . . . i too am very, very proud of you. adrian . . . . my best friend my partner, my lover what a ride we are on! it sure is never boring! here’s to lots more learning and fun. how privileged to have you by my side. let us now listen to adrian’s favourite song . . . . and your job adrian is to think about: · why we are all proud of you, and · why we all love you! 70 a model for interdisciplinary clinical education: medical and legal professionals learning and working together to promote public health lisa bliss, sylvia caley, and robert pettignano1 interdisciplinary training for professionals is becoming more common in higher education� educators are beginning to understand the benefit of jointly training students in complex and interrelated skills that improve and complement the primary skills needed to succeed in a particular profession� legal educators have recognized the value of encouraging flexible, collaborative 1 lisa bliss, jd, is an associate clinical professor at georgia state university college of law and co-director of the help legal services clinic in atlanta, georgia, usa� sylvia caley, jd, mba, rn, is an associate clinical professor at georgia state university college of law, co-director of the help legal services clinic, and director of the health law partnership (help) in atlanta, georgia, usa� robert pettignano, md, faap, fccm, mba, is an associate professor of pediatrics at emory university school of medicine, medical champion at the health law partnership (help), and medical director for campus operations at children’s healthcare of atlanta at hughes spalding in atlanta, georgia, usa� 149 thinkers who become better problem-solvers through interdisciplinary learning�2 many of these are also coming to realize the importance of interdisciplinary training as a component of readiness for professional practice�3 for many law students, law school clinics are the first opportunity they have to learn legal skills and to engage in problem-solving for real clients� this experiential learning opportunity is often powerful and transformative, and can imprint skills, values, and practice habits that stay with students throughout their professional careers� incorporating interdisciplinary learning opportunities into the law school clinic experience affords opportunities for co-learning, holistic problem-solving, and community building during young professionals’ formative years� learning to be a lawyer in the context of an interdisciplinary law school clinic combines the experience of working with real clients and academic inquiry into the nature of the lawyering process itself and the ethical and fundamental practices of other professionals� clinics serve as incubators for professional development� they provide opportunities for reflection on the practice of law, professionalism, social justice, and countless skills that help ready students for the profession of law�4 the help legal services clinic at georgia state university college of law aims to create an interdisciplinary dimension to such practice and inquiry, and thus influence the way in which the professional students from the law and medicine disciplines work together as learners and future professionals� the clinic is an innovative interdisciplinary education program at georgia state university college of law in which law students learn side-by-side with medical students, residents, attending physicians, and other health care providers, as well as social work and public health students� the education program is part of a medical-legal partnership known as the health law partnership (help)� this unique educational collaboration helps students understand that health disparities experienced by minorities, individuals and families with low economic status, and those with low educational attainment contribute to poorer health outcomes� law students and students from the health professions learn first-hand the effect that socioeconomic determinants have on health 2 lawyer-social worker teams have been recognized as role models for student attorneys� for example, one american scholar calls them “a refined third wave therapeutic jurisprudential practice methodology, capable of addressing twenty-first century legal and social needs of the client�” christine a� zawisza, two heads are better than one: the case-based rationale for dual disciplinary teaching in child advocacy cases, 7 fla. coastal l. rev� 631, 683 (2006)� others have noted the benefits of interdisciplinary collaboration for the university as a whole, insofar as such clinics “provide a public relations benefit to the university as well as opportunities for students to carry the public interest ethic into their careers as lawyers, legislators, or governmental administrators or in other professional occupations�” katherine c� pearson & lucy johnston-walsh, partners in outreach and advocacy: interdisciplinary opportunities in university-based legal clinics, j. higher educ. outreach & engagement, sept� 2007, at 163, 171-72� 3 see c�k� gunsalus & j� steven beckett, playing doctor, playing lawyer: interdisciplinary simulations, 14 clinical l. rev. 439, 441 (2008) (describing an innovative interdisciplinary simulation course and the view that interactions with differently-trained professionals improves the acquisition of fundamental skills�) 4 educators who collaborate in interdisciplinary learning environments have noted that problem-based learning, including the opportunity to practice lawyering skills with real clients in a supervised setting, is a valuable way to help students learn, insofar as students receive ongoing, ungraded feedback to help them improve their skills� antoinette sedillo lopez et al, a medical/legal teaching and assessment collaboration on domestic violence: assessment using standardized patients/standardized clients, 14 int’l j. clinical legal educ� 61, 63-64 (2009)� 150 international journal of clinical legal education issue 18 and how to better address issues that can affect the health and well-being of low income families�5 the curriculum provides a multi-faceted interdisciplinary learning experience for students of multiple disciplines including, law, medicine, social work, public health, pediatric residents and other professionals� the interdisciplinary components of the help clinic are multilayered, involving different activities and students from different professions� for example, fourth year medical students participate in the clinic course as part of a four-week law and medicine elective offered through morehouse school of medicine� clinic students also attend joint classes with third year medical students at morehouse school of medicine where they engage in group learning exercises� residents from emory school of medicine attend the clinic class case rounds to discuss ongoing clinic cases and engage in interdisciplinary problem-solving� clinic students attend patient rounds within the hospital and perform client intake in the hospital’s emergency department and primary care clinic� a masters in social work student from georgia state university dedicates sixteen hours per week to the clinic to meet the requirements for her practicum placement� a fellow from the masters in public health program at georgia state university spends twelve hours per week in the clinic� the article describes the how the authors have incorporated professional students from multiple disciplines into a law school clinic environment� it also provides examples of students’ reactions to their interdisciplinary learning experiences� finally, the article discusses the challenges and opportunities in using this clinic model� introduction to the help legal services clinic the help legal services clinic was developed in 2006 as a component of the health law partnership (“help”)� help is a medical-legal partnership and interdisciplinary community collaboration among children’s healthcare of atlanta6, the atlanta legal aid society7, and 5 as one american scholar has noted, clinics provide students with a model for integrating social justice into their practice by ingraining in them a definition of social justice as empowering the powerless� this definition fuels their dedication to addressing social disparities through legal advocacy and helps direct their work towards achieving social justice� spencer rand, teaching law students to practice social justice: an interdisciplinary search for help through social empowerment approach, 13 clinical l. rev� 459, 463 (2006)� furthermore, clinical education that combines traditional skills-based curriculum with an emphasis on how particular systems (such as the health care system) function has been proposed as one means of resolving the traditional tension between teaching students lawyering skills and training them to think of the law as a practical tool for achieving social justice� meredith j� ross, a ‘systems’ approach to clinical legal education, 13 clinical l. rev� 779, 781 (2007)� 6 children’s healthcare of atlanta formed in 1998 when egleston health care system and scottish rite medical center merged forming one of the largest pediatric health systems in the united states� in 2006, children’s assumed administrative and managerial responsibilities for hughes spalding children’s hospital� children’s now consists of three hospitals and seventeen neighborhood locations all designed to meet the health care needs of georgia’s children� 7 the atlanta legal aid society, established in 1924, provides free civil legal services to low-income individuals in atlanta, georgia� attorneys work to help clients with some of life’s most basic needs – safe housing, access to sufficient, nutritious food, access to a free and appropriate public education, access to quality, affordable health care services, personal safety, and protection against fraud� a model for interdisciplinary clinical education: medical and legal professionals learning and working together to promote public health 151 georgia state university’s college of law8 to address the socioeconomic barriers affecting the health and well-being of low-income children and their families� the defining characteristic of a medical-legal partnership is the integration of lawyers directly into the healthcare system by making attorneys part of the healthcare team�9 thus, if a doctor, nurse, or social worker identifies a patient whose basic social needs are not being met, the medical provider can refer the patient’s family to the lawyer working next door�10 the medical-legal partnership movement in the united states has spawned a number of partnerships between physicians, clinics, hospitals, lawyers and other care providers� physicians, nurses, attorneys, and social workers are now partnered in more than 235 health institutions in the united states at 83 medical-legal partnership sites�11 most of these partnerships focus on the provision of direct legal services to low income clients who are patients of the partnering health provider� help has expanded upon the characteristic delivery of legal services model to incorporate professional education programming, systemic advocacy, and a research agenda as part of its mission� help’s primary premise is that by combining the health care expertise of medical professionals with the legal expertise of attorneys, it can provide a multidisciplinary, cooperative, and coordinated set of services to address the multiple determinants of children’s health� help was born from a realization that the social and economic conditions in which children live can seriously affect their health�12 for example, poor housing conditions, such as unsanitary conditions or lack of heat, can exacerbate health conditions like asthma or sickle cell disease�13 poverty can prevent children or their families from obtaining needed medications and other medical treatment� lack of protection from domestic violence can result in serious injury to children and family members� failure to protect the legal rights of developmentally disabled children can lead to their inability to get remedial special education or other needed services� by partnering with medical providers, lawyers can intervene to address such issues and improve the physical, social, or economic environments in which many children live, resulting in their 8 georgia state university’s college of law was established in 1982 to offer quality legal education to traditional, full-time day students as well part-time students primarily studying at night� the college of law is committed to providing an excellent, affordable, and distinctive legal education to a diverse student body, to promoting legal scholarship and service, and to capitalizing on the unique environment in which the college is located in downtown atlanta, georgia� 9 marybeth musumeci, augmenting advocacy: giving voice to the medical-legal partnership model in medicaid proceedings and beyond, 44 u. mich. j.l. reform 857, 886 (2011)� 10 id. 11 mlp network, national center for medical legal partnership, http://www.medical-legalpartnership. org/mlp-network (last visited apr� 4, 2012)� 12 for a detailed discussion of the development of the health law partnership and its components of direct legal service, education, advocacy and evaluation, as well as a template for developing a successful community collaboration and a medical-legal partnership, see lisa bliss, sylvia caley & robert pettignano, an interdisciplinary collaborative approach to wellness: adding lawyers to the healthcare team to provide integrated care for patients, int’l j. health, wellness & soc’y, no� 2, 2011 at 129� 13 paying more than 50 % of the available household income on rent and/or living in substandard housing often results in poor health outcomes, especially in children� monisha cherayil et al, lawyers and doctors partner for healthy housing, clearinghouse rev. j. of poverty l. & pol’y, may-june 2005, at 65� 152 international journal of clinical legal education issue 18 153 improved health and quality of life�14 the lawyers and doctors working together at help recognized that focusing on changing the culture and professional attitudes of the next generation of physicians and lawyers is an opportunity to improve the socio-economic determinants of health�15 training the next generation of physicians and lawyers to work together to enhance patient outcomes can positively impact the socio-economic determinants of health� although a primary goal of medical-legal partnerships is to address the socio-economic barriers, and thereby improve client health and well-being through the provision of legal services, pursuing that goal in the context of interdisciplinary professional education inures to the benefit of all professions involved�16 the help legal services clinic was developed as a vehicle for delivering interdisciplinary collaborative training to professional students from law, medicine, social work, public health, and other disciplines� advocates of medical-legal partnerships have noted that joint medical and legal education provides a unique opportunity to engage law and medical students in interdisciplinary problem-solving while also expanding their understanding of the complex issues of social justice and inequality in our legal and health care systems�17 cited among the benefits of interdisciplinary education are: developing respect and appreciation among the disciplines, teaching team work and collaboration, developing a knowledge-base about other disciplines, teaching communication among disciplines, and teaching other disciplines’ rules, beliefs, and ethical principles�18 through the help clinic interdisciplinary education model, many of these benefits are being realized� help clinic students and faculty have both reported that their interdisciplinary experiences have deepened their understanding of the healthcare system, as well as their understanding of the training and problem-solving approaches of the medical field� residents have remarked that attending the help clinic case rounds gave them a better understanding of the legal requirements for proving disability under the law and a better appreciation for the work that lawyers do� as the help clinic program has matured, the relationships among the law and medical faculty 14 physicians are generally trained to inquire about the social history of their patients, but often are unfamiliar with the resources and solutions to conditions that contribute to health disparities� for example, pediatricians are generally trained to trace the biological causes of illnesses but are reluctant to inquire about housing conditions, violence, and other social conditions since they are unsure about how to rectify the problems such a line of inquiry might uncover� chen kenyon et al, revisiting the social history for child health, pediatrics, sept� 2007, at e734, e735� 15 david schulman and colleagues have noted that “by understanding that social determinants are a frame for unmet legal need, public health legal services can bridge the gap to address the social determinants at their root� public health legal services are an emerging revolution in service delivery for vulnerable populations in communities ��� that seek to vigorously attack the social determinants of health that affect poor people�” david i� schulman et al, public health legal services: a new vision, 15 geo. j. on poverty l. & pol’y 729, 729, 732 (2008)� 16 lisa bliss & sylvia caley, medical-legal partnerships connecting law and health care to improve the health and well-being of low-income children: promising initiatives, 20 hec forum 2, 102-106 (2010)� see also c�k� gunsalus & j� steven beckett, playing doctor, playing lawyer: interdisciplinary simulations, 14 clinical l. rev� 439, 441; elizabeth tobin tyler, allies not adversaries: teaching collaboration to the next generation of doctors and lawyers to address social inequality, 11 j� health care l. & pol’y 249, 250 (2008)� gunsalus and colleagues note that law students do not generally interact with other professionals and thus have little opportunity to develop relationships with other professionals and engage in interdisciplinary collaboration despite shared values and goals� see gunsalus, supra note 3, at 441� 17 tobin, supra note 16, at 252-53� 18 id. at 272� a model for interdisciplinary clinical education: medical and legal professionals learning and working together to promote public health collaborators have strengthened� this in turn has stimulated more interdisciplinary collaboration, including joint presentations and collaborative scholarship�19 interdisciplinary learning can help improve the problem-solving abilities of all of the professions participating in the program� an interdisciplinary approach to learning helps law students prepare to deal with real-world situations – because real clients do not present problems with the cut-anddried fact patterns of appellate cases�20 exposure to help clinic clients helps medical students and residents appreciate the barriers many patients experience when trying to comply with a prescribed treatment plan� noncompliance may be caused by lack of funds, lack of understanding, or lack of transportation rather than disregard� most of the interdisciplinary learning students engage in under the help clinic model takes place outside the classroom, and is reinforced during joint classes, interdisciplinary case rounds, and interdisciplinary team meetings� the goal of these varied interactions is to expand students’ problem-solving abilities through exposure to the thinking process of different professions while working jointly to solve a single problem� the interdisciplinary approach also forces students from both the health and legal professions to consider their patient/client in the context of the client’s life� for lawyers, this can mean understanding that the client has a medical condition that impacts the nature and purpose of the representation� for physicians, it can mean understanding that there may be legal remedies or legal issues intertwined with the client’s illness� the help clinic course the help clinic is structured as a one-semester, three credit course offered by georgia state university college of law to law students�21 students who wish to continue beyond the first semester to deepen their learning may enroll for a second semester� like most law school clinics, the course is designed to teach lawyering skills by connecting theory and practice via direct client interactions� all cases referred to the help clinic come from the hospital based law offices of help� 22 although the cases handled by the staff attorneys at help cover a broad range of civil legal problems, the cases typically referred to the help clinic are limited to children’s disability 19 see, lisa bliss, sylvia caley & robert pettignano, client and patient relationships: understanding cultural and social context, in poverty, health and law at 125-156 (elizabeth tobin tyler et al� eds�, 2011); lisa bliss, sylvia caley & robert pettignano, an interdisciplinary collaborative approach to wellness: adding lawyers to the healthcare team to provide integrated care for patients, int’l j. health, wellness & soc’y, no� 2, 2011, at 129; lisa bliss, sylvia caley & robert pettignano, a case for including lawyers on the care team, physicians exec� j�, mar�-apr� 2011, at 34; robert pettignano, sylvia caley & lisa bliss, medical legal partnership: impact on patients with sickle cell disease, pediatrics, nov� 14, 2011, at e1� 20 kim diana connolly, elucidating the elephant: interdisciplinary law school classes, 11 wash. u. j.l. & pol’y 11, 37 (2003)� 21 the course is open for cross-enrollment by students from the schools of nursing, psychology, and public health� to date, one public health student has enrolled in the clinic� two additional public health students are working with help and the help clinic as part of their educational requirements� 22 healthcare providers at children’s healthcare of atlanta, including attending physicians, residents, social workers, nurses, and therapists refer patients and families experiencing legal problems affecting the health and well-being of the patient to help� during the weekly new case acceptance meeting help staff triage cases to determine whether the potential client is eligible for help’s free legal assistance and if yes, to decide placement of the case� options include providing direct legal assistance, referring the case to a volunteer attorney, providing self-help assistance, and referring the case to the help legal services clinic for supervised student representation� 154 international journal of clinical legal education issue 18 claims, medicaid and other health insurance claims, housing conditions cases, education cases, and wills� because the cases are referred to the clinic through the main office of help, all of the cases involve a child who has a health condition that is being treated by help’s partner, children’s healthcare of atlanta�23 students in the help clinic work in pairs under the close supervision of clinic faculty� pairs meet at least once a week with their assigned clinical supervising faculty� like many clinical courses, the law students meet before the semester begins for a day-long orientation program, and the early course sessions are focused on interactive simulations to teach skills of interviewing, counseling and negotiation� classes meet biweekly� the classroom simulations are specifically designed to incorporate issues that are common to the help clinic caseload� the simulations all involve matters in which a parent of a very ill child is seeking legal assistance for housing, access to care, educational services, employment, disability, or wills and advance directives�24 students are also specially trained to do interdisciplinary research using medical research databases� these resources can be helpful to law students in understanding their clients’ diagnoses, and also in determining what evidence might be necessary to support their cases or claims� the course emphasizes the development of skills in client interviewing and counseling, fact finding and analysis, legal research and document drafting, pursuit of administrative and other legal remedies where appropriate, and creative problem-solving for the benefit of clients�25 however, through the help clinic model, students learn these skills in the context of interdisciplinary team and group work, with an emphasis on interdisciplinary collaboration and problem-solving�26 this interdisciplinary collaborative work takes place in the classroom, in supervision meetings, at hearings, or in meetings with clients� students also gain exposure to the terminology and culture of various healthcare disciplines, especially the medical profession� developing an interdisciplinary course the help clinic was created as the result of an award of a grant to establish an experiential learning program for law students to address and develop the educational mission of the medical23 there is some debate about whether legal clinics best serve their dual mission of educating students and providing legal services via specialization or general practice� despite a general trend towards specialized legal clinics, antoinette sedillo lopes argues that clinics achieve their dual goals of legal skills training and social justice when they serve a particular community or client base� this approach provides both greater access to legal services for the community while enabling students to observe widespread inequalities in the legal system and develops creative problem-solving skills� antoinette sedillo lopez, learning through service in a clinical setting: the effect of specialization on social justice and skills training, 7 clinical l. rev� 307, 325 (2001)� 24 see also gunsalus, supra note 3, at 444� 25 clinical educators have noted that “one discreet skill that is essential and often under-emphasized” in traditional law school curriculum “is listening, especially as it relates to interviewing� our experience shows that professional training related to interviewing, across disciplines, emphasizes the drafting of questions, acquiring methods of asking questions in order to obtain particular answers and efficiently documenting information obtained�” v� pualani enos & lois h� kanter, who’s listening? introducing students to clientcentered, client-empowering, and multi-disciplinary problem-solving in a clinical setting, 9 clinical l. rev� 83, 90-91 (2002)� 26 such an approach also benefits the clients served by such clinics by enabling the lawyer and the treating medical professional to see the client’s legal goals and health needs as interrelated, thus both empowering the client/patient while also providing therapeutic benefits� susan daicoff, law as a healing profession: the “comprehensive law movement”, 6 pepp. disp. resol. l.j. 1, 12 (2006)� 155 a model for interdisciplinary clinical education: medical and legal professionals learning and working together to promote public health legal partnership� from the outset the goal was to incorporate interdisciplinary learning into the clinic� building relationships and establishing trust are key to success in any collaborative venture� because relationships take time to build and strengthen, the interdisciplinary components of the help clinic course were developed over time, through multiple connections� a pivotal event for the clinic was the selection of a medical champion for help� 27 the medical champion immediately became engaged in operationalizing the many interdisciplinary aspects of the help clinic�28 as an initial matter interdisciplinary education meant creating collaborative experiences among different disciplines, invariably from different academic institutions� in addition to the college of law, georgia state university has schools of public health and social work, but no medical school� therefore, the help clinic faculty reached out to the two medical schools located in atlanta: emory university school of medicine and morehouse school of medicine� creating joint experiences with medical students and residents has proved challenging due to differences in schedules and program requirements for law students, medical students, and residents� because the social work and public health students are also from georgia state university, students from those disciplines have been more easily incorporated into the help clinic course� the willingness of the medical education partners from morehouse school of medicine and emory university school of medicine to be flexible and experiment with different kinds of joint learning opportunities has resulted in the development and growth of interdisciplinary education experiences for law students, medical students, and residents� there are natural complexities inherent in combining students from the three academic centers� nevertheless, the positive response from law and medical students makes it clear that the interdisciplinary elements of the course should be continued� introducing law students to the hospital environment many law students have never set foot in a hospital� those who have likely did so as a visitor� a small handful may have been admitted as patients, but almost none have participated on the provider side of health care� even before the semester starts, law students are exposed to the pediatric hospital environment� in order to be allowed access to the hospital, hospital regulations require that help lawyers, staff, and students obtain the same immunizations as required of other 27 “medical champion” is a term of art suggesting a person in the medical field (usually a physician) who is the lead medical partner in the partnership� the role of the medical champion varies; however, generally it encompasses responsibility for medical direction and interpretation of medical data as it relates to the cases referred to help and the help clinic� in help, the medical champion dedicates a significant amount of time to cultivating relationships to increase awareness of the partnership and its goals to all members of the medical staff� 28 the health law partnership began as a lawyer-driven medical-legal partnership� law faculty from georgia state university college of law, lawyers from atlanta legal aid society, and the general counsel at children’s healthcare of atlanta conceived the vision and worked to bring the project to life� while help achieved great successes in the early years, dynamic progress began with the identification of the physician medical champion� this physician embraced the mission of help and the help clinic and set about opening doors, creating opportunities, making introductions, cajoling colleagues, giving presentations, developing hospital experiences for law students, and attending clinic classes� 156 international journal of clinical legal education issue 18 hospital personnel�29 children’s at hughes spalding is conveniently located near the georgia state university college of law campus so students’ introduction to the healthcare environment continues via a hospital tour by the medical champion for help�30 the tour includes the emergency department where the students later will hold office hours, the primary care clinics, and the inpatient areas of the hospital� the medical champion also educates students about the history of the hospital, the demographics of the patient population served at children’s, and about the specialty clinics and centers specifically developed to address the needs of children seen at this inner city hospital� the tour is the first chance for many clinic students to be exposed to a pediatric hospital and to the referral source for their clients� our goal in walking students through the hospital, and introducing them to the hospital environment, is to begin to help students become comfortable inhabiting another professional environment – one in which their service on legal matters is a component of patient service� the tour assists in accomplishing another goal: getting members of the hospital team familiar with seeing lawyers and law students in their surroundings� bilateral familiarity facilitates communication, the identification of patients experiencing both medical and legal problems, the efficient referral of those in need of legal services to help, and the establishment of interdisciplinary collaboration� a rounds exchange: pediatric residents from emory school of medicine through the help clinic, law students learn about the training and professional lives of pediatric residents, and vice versa� pediatric residents from emory university school of medicine collaborate with law students in the clinic case rounds� help clinic case rounds provide an opportunity for the whole class to meet to discuss clinic cases� all cases assigned to the clinic may be discussed at case rounds at some point during the semester� these group discussions focus on legal, ethical, medical, and other issues arising from client representation in the context of a medical-legal partnership� during rounds, the group may collaborate to resolve a problem, debate an ethical issue, or collaborate in the performance and critique of mock counseling sessions, moot hearings, or other aspects of case work� case rounds are held approximately seven times during the semester� the rounds classes help students explore and deepen their understanding of the benefits of interprofessional problem-solving�31 pediatric residents attend rounds and participate in the case discussions� the discussions are focused on different educational goals for the clinic 29 because students will be in the hospital, in close proximity to members of the health team and to patients and their families, they must be tested to ensure they have not been exposed to tuberculosis, that they have adequate immunization against common childhood diseases and that they have immunization against flu and hepatitis b� before being permitted to enroll, students are tested and must show proof of the required immunizations to the hospital’s office of occupational health� 30 dr� robert pettignano, the medical director for children’s at hughes spalding hospital and help’s medical champion, orchestrates students’ introduction to the hospital environment� he works closely with help clinic faculty and law students to create an interdisciplinary learning environment at the hospital� 31 rounds offer many benefits for legal education, insofar as students combine “what they know about research methods with the clients’ experiences� in rounds, students explicitly build on one another’s knowledge� learning located in experience is powerful; once students integrate learning into prior experiences they recall it more readily and can use it effectively�” susan bryant & elliott s� milstein, rounds: a “signature pedagogy” for clinical education?, 14 clinical l. rev� 195, 208 (2007)� 157 a model for interdisciplinary clinical education: medical and legal professionals learning and working together to promote public health and are geared toward problem-solving of both legal and medical issues for clients�32 by attending interactive case rounds, the residents learn about legal issues that affect their patient population, share medical knowledge pertinent to the clinic cases, and gain a deeper understanding of the legal system� the de-identified clients and cases under discussion represent the very same patient population they are treating, complete with all the same challenges� the residents’ attendance and participation in help clinic rounds satisfies two of the core competencies that they must attain during their three-year residency�33 emory residency program directors34 require that each pediatric resident attend one case rounds class� however, many have returned voluntarily two, three or more times because they find the experience rewarding� these residents are the next generation of health care providers and expanding their awareness of the socioeconomic determinants of health is a best practices endeavor� once exposed to the discussion of help clinic cases, residents often begin to appreciate the value of interdisciplinary discussion and holistic problem-solving� students, residents, and faculty alike agree that case rounds is the most dynamic example of the interdisciplinary learning environment the help clinic aspires to achieve� the rounds exchange is completed as law students make their way over to the hospital to join one of the faculty attending physicians35 as he or she makes daily patient rounds with the pediatric residents� at the hospital, law students are exposed to the dialog, language, learning, and problem-solving process that takes place during rounds and medical training� they also learn about individual diseases and the process of diagnosis in medicine� law students are invited to ask questions and participate actively in rounds� their presence reminds the attending physician and residents that a previously untapped resource exists for families who may have a legal problem affecting the health or well-being of the patient� for example, students attending patient rounds have suggested to the attending physician or residents that an asthma patient’s family be referred to help for a consult regarding housing conditions that may be impacting the child’s disease� law students generally react favorably to this experience� the rounds serve not only as an opportunity for the attending physician to teach residents, but also an opportunity for the residents and law students to teach and learn from one another� participating in rounds allows law students to see how patient care is coordinated and how medical professionals communicate with one another to help patients get well� by joining patient rounds, law students gain a greater appreciation for what it is like to work in the hospital environment, and learn how medical professionals solve patient problems� 32 goals to be achieved during case rounds include developing professional identity, appreciating the ethical frameworks of the different professions, focusing on client-centered lawyering techniques, understanding complex medical diagnoses that affect the legal services to be provided, developing and improving effective communication skills, and developing appropriate professional boundaries� 33 these competencies are set by the american council of graduate medical education,http://www�acgme�org� 34 the authors would like to extend their gratitude to dr� lynn gardner, associate director, pediatric residency training program, emory university school of medicine, and dr� susie buchter, director, pediatric residency training program, emory university school of medicine, for their dedication to excellence in medical training and the pursuit of innovation in resident education� 35 an attending physician is one “having the privilege to admit patients to a particular hospital and to treat them during their stay at the hospital or a physician on the staff of a hospital, but not residing in the hospital, who treats patients admitted to the hospital by the hospital itself (rather than by a private practitioner) and also instructs the interns and residents with regard to treatment of such patients�” j.e. schmidt, attorney’s dictionary of medicine (1997)� 158 international journal of clinical legal education issue 18 intake mondays: law students in the hospital in addition to attendance at hospital patient rounds, law students enrolled in the help clinic continue their hospital experience by taking turns covering shifts for a program called “intake mondays�” law students are trained to perform initial client intake interviews and then are allowed to do so in the emergency department (ed) and the primary care clinic at the hospital� during their shift, students set up in a dedicated workspace either adjacent to the main nurse’s station in the hospital emergency department or in the residents’ workroom� students first greet the nurses to remind the nurses that they are available to conduct initial intake interviews with patients identified as having legal problems and in need of referral to help� the law students are also available via an on-site wireless telephone for a referral from one of the other care clinics inside the hospital� there is a private consultation room available for client interviews when a client is referred� the purpose of this exchange is twofold: to provide students with an opportunity to perform initial interviews of potential clinic clients within the hospital, and to provide hospital patients with the opportunity to directly access legal services while their child is getting medical care� students also learn communication skills since they are often are asked by hospital visitors and staff why they are in the hospital� law students are trained to educate anyone who may ask about the health law partnership, the help clinic, and our goal of collaboration to address the socioeconomic determinants of health for children� encouraging healthcare providers in the hospital to use the law students as a resource to perform legal intakes has taken time� this is due to multiple factors including the fast pace and the number of patients seen in the ed and the primary care clinic on a daily basis, the fact that performing a “legal checkup” has not been ingrained into the fabric of the medical interview, and the time it takes to educate the hospital staff about the purpose of the law students’ presence� in spite of the challenges, the program has proved beneficial to students, even in its early stages� during their time in the hospital, students observe the nurses and doctors in their interactions with each other and the patients and reflect on those observations in class� over time, the purpose of having law students in the hospital is becoming better understood by the hospital staff� slowly they are becoming part of the fabric by which holistic service is delivered at children’s at hughes spalding� residents now take the time to chat with the law students on duty� many of these residents have participated in clinic case rounds at the law school and encountering the law students in the hospital further solidifies the benefits of interdisciplinary, holistic problem-solving on behalf of patients/clients� law students and medical professionals are finding opportunities to learn from one another formally, as well as informally� as familiarity with the program has increased, the number of legal referrals and intakes also has increased� joint classes: third year medical students from morehouse school of medicine during the early development of the help clinic course, clinic faculty approached the director of predoctoral education at the morehouse school of medicine department of pediatrics to 159 a model for interdisciplinary clinical education: medical and legal professionals learning and working together to promote public health explore collaborative opportunities�36 the parties agreed to pursue the creation of joint class experiences for law and medical students� the collaboration began with four joint classes between help clinic students and third year medical students� all help clinic students go to morehouse twice each semester and attend “fundamentals of medicine iii,” a mandatory, year-long class for all third year medical students� attendance at these joint sessions is also mandatory for help clinic students� the help clinic faculty and morehouse faculty have collaborated to develop the curriculum for these joint sessions, which are co-taught by faculty from both schools� the classes are interactive, often involving small group work and discussion� bridging professions: introducing law students and medical students to one another combining a class of medical students and law students requires an introductory activity to help bridge the gap between the two professions and help the students to become comfortable with the idea of collaborating with one another� putting these two groups of students together is something akin to an arranged marriage: both sets of parents think the pairing will be a success based on attributes that the parties may have in common, but the actual introduction and beginning interaction between the parties can be awkward and uncomfortable� we expected this and created some activities to help create a bridge during the first meeting of the two groups� the first exercise is called “who are we?” in this exercise the students are asked to form small groups within their own disciplines� the law students are asked to brainstorm answers to the question, “as a patient, i would like my doctor to be ______�” the medical students are asked to brainstorm answers to the question, “as a client, i would like my lawyer to be ________�” after a few minutes of small group work on this task, the whole group comes together� the faculty writes on the board “doctors” and begins by asking law students to name the qualities they discussed in their small group that they would like to have in a doctor� characteristics such as “educated,” “sensitive,” “caring,” “not charge too much,” “not make me wait,” etc� are quickly accumulated and written on the board� if a law student makes a comment that implies a judgment, negative assumption, or stereotype about the medical profession, he or she is pressed to say more about it and the assumption is explored� next, the faculty writes “lawyers” on the board, and the medical students are asked to identify the qualities that, as a client, they would like to see in their lawyer� similar ideas generally surface, and the faculty facilitator begins to make connections about the two professions and the clients and patients we serve� the medical students often state they would like their lawyers to be “tenacious,” “on my side,” “honest,” etc� judgments, stereotypes and negative assumptions about the legal profession are similarly explored, and lines drawn between the similarities on both sides of the board� finally, all students are asked to reflect and comment on why they think they were asked to perform this exercise� this is the point at which law and medical students begin to warm to one another, and begin to discover that they may share some common ground, not only in what they expect from one another, but what is expected of them� it is also here that the first examples of 36 the authors would like to thank dr� david levine, professor of medicine and chief, division of predoctoral education, morehouse school of medicine for embracing the opportunity to participate with help clinic faculty in creating interdisciplinary learning opportunities for medical students and law students� 160 international journal of clinical legal education issue 18 the benefits of interdisciplinary education become evident�37 after the first class, students begin to think about the other profession’s rules and beliefs, and the window to develop appreciation and respect is opened� a striking aspect of the joint sessions is the realization that the medical students and law students have much in common� generally, they chose their professions because they wanted to help people� most chose their specific school because of the focus on service and giving back to the community� both groups of students are learning about health disparities and the effect of socioeconomic determinants on the health of vulnerable populations� the joint classes afford yet another opportunity to influence the professional development of the next generation and better prepare them for twenty-first century professional practice� these joint classes contribute to an overall program of best practices in professional education of law and medical students� elective rotation in the help legal services clinic: fourth year medical students in “law and medicine” building upon the success of the joint classes in the third year, a subsequent course was developed for fourth year medical students from morehouse school of medicine� the course, “law and medicine,” is an elective rotation�38 students who choose “law and medicine” participate in the help clinic and help activities for four weeks, forty hours per week� up to three medical students are permitted to participate in any given rotation to ensure an optimal rotation� because the medical school schedule does not sync perfectly with the law school schedule, medical students are given a brief training and then folded in to whatever activities are happening in the clinic at the time of their rotation� this could be at the beginning, middle or end of the semester� the medical students are assigned to different supervisory teams and attend weekly team meetings with law students� they also engage in case work with students, do medical research, and interpret medical records and legal rules that may have a medical component� they attend case rounds, case hearing moots, and even case hearings� one group of medical students was able to attend a federal appellate court oral argument on a case dealing with an access to healthcare issue that affects many of help’s clients� the law and medicine elective is part of a continuum� for morehouse students, an integral aspect of the medical school curriculum is understanding and addressing health disparities� by the time help clinic faculty and students meet third year medical students in the “fundamentals of medicine iii” class, the medical students already are developing awareness of the need for community solutions to patients’ problems� the fom class opens that window for collaborating directly with lawyers and law students to address health disparities more holistically� the entire third year class is exposed to the message� while fourth year medical students clearly self-select to enroll in the law and medicine elective and only a limited number do so, information about their experiences and the value of the time spent at help and the help clinic spreads throughout 37 some other benefits of interdisciplinary education have been identified as the development of “necessary analytical skills; necessary practical skills; teamwork training; future marketability; recognition of the increasing client desire for one-stop shopping; understand��� roles��� knowledge of the limitations of legal training; and adding fun to the classroom�” connolly, supra note 20, at 36� 38 the authors, lisa bliss and sylvia caley, were appointed as adjunct assistant professors in the department of pediatrics at morehouse school of medicine and are the supervisors of this elective rotation� 161 a model for interdisciplinary clinical education: medical and legal professionals learning and working together to promote public health 162 international journal of clinical legal education issue 18 the class� a form of indirect “learning by association” takes place� morehouse graduates begin their professional careers as physicians and surgeons appreciating the utility of comprehensive solutions to patients’ problems� the law students, who experienced the opportunity to work shoulder-to-shoulder with medical students in the help clinic, feel both valued and hopeful that relationships between lawyers and doctors will be more collaborative in their generation of professional practice� student assessment the help clinic course is three credit hours of the ninety credit hours students must successfully complete to be eligible for a juris doctor degree� unlike some experiential learning opportunities that are pass/fail, this course is graded� law students in the clinic are assessed in their performance of the multiple learning objectives of the course, including professionalism in relationships and client-centered practice, legal problem-solving, research and writing, professional identity and independent learning, ethical and professional practice, case management, and course participation and collaboration with legal and other professionals� the only other professional students who receive formal assessment of their help clinic participation at this time are the morehouse school of medicine fourth year medical students who enroll in the law and medicine elective� the medical students are evaluated on clinical utilization of knowledge, academic preparedness, oral presentations, case notes, interpersonal relationships, insight, student effort, reaction to supervision and overall performance� this elective is pass/fail� challenges of the help clinic model and opportunities for further development many of the components of the help clinic that make it unique and exciting also provide challenges in keeping the program manageable and cohesive� involving medical students and residents from two different medical schools in different and meaningful ways can be difficult to coordinate� law students, medical students, and even the residents sometimes experience a feeling of “culture clash,” when they are first asked to learn together� while the clinical law students are required to journal about their experiences engaging with the medical culture and their observations, up until now there has been no formal journal requirement for the medical students� medical school may not encourage this kind of reflection, but we have decided to incorporate a reflection component for the medical students participating in the four-week elective� the only feedback received from medical students taking the elective thus far is through the course evaluation forms� however, medical students have responded positively to the course overall� while their comments are encouraging and helpful, a more guided reflection about the experience of medical students may reveal more about the value of the course to them and the faculty� another challenge that has been identified is the cultural differences in the amount of class preparation engaged in by law students and medical students� even though the preparation time required for the joint classes is deliberately kept to a minimum, some is expected� generally, the law students arrive prepared to discuss a short reading or prepare in advance an assignment to write a brief paragraph that contains as much legal jargon as possible, which they will share with the medical students� by comparison, the medical students are not accustomed to doing a great deal of class preparation for this particular course, and are more likely to prepare on the spot while 163 class unfolds� some law students have commented on the differences between the two professions on the issue of preparing for class� finding sufficient time to cover all the useful topics and to practice skills exercises remains a challenge� given the small number of credit hours allocated to the help clinic course, it is difficult to approach the course itself with depth� an enormous amount of material is covered together with the multiple interdisciplinary experiences, which can be viewed as “too much of a good thing�” although it may be possible to add more credit hours for the law students who enroll, it may not be possible to increase the amount of time spent by the medical students and residents, who have their own professional and educational requirements to satisfy� other challenges exist with the development of the intake monday rotation� some students were able to do client intakes during their shift at the hospital and some were not� some enjoyed being part of the busy ed and primary care units, but others felt the time spent was not meaningful unless they actually had a client, and there is no way to control for this possibility� on the other hand, while law students tend to see this experience only through the lens of how it may benefit their own experience, from the medical side the benefit of their presence is to remind medical providers that legal service is available for patients who need it� the intake program was retooled to incorporate the hospital primary care clinic, while also serving ed patients when needed� over time this location may be a richer source of referrals and thus client intake opportunities for students�39 the best opportunities for deep, meaningful joint experience have arisen from the morehouse school of medicine law and medicine elective rotation for fourth year medical students and the rounds exchanges for pediatric residents from emory university school of medicine� the intensive immersion of students enrolled in the law and medicine elective allows the law and medical students to experience working together on cases, and to learn through experience how they can be of help to one another� it also gives them opportunities for informal, friendly conversations, which helps to build bridges between the professions� occasionally, deeper bonds develop� in the age of social media, it may be significant that the law and medical students have become facebook “friends,” and stay in touch with one another long after their time together in the clinic has ended� the future opportunities for development of the help clinic are unlimited� for the first time, during the fall semester 2011, the help clinic served as a placement for a master of social work student who is working in the clinic sixteen hours per week providing case management services on behalf of clinic clients� this proved to be a valuable service for clinic clients and another chance for law students to work side by side with another professional� also, during the fall semester of the academic year 2011-12 two master of public health students fulfilled their practicum placement requirements by working in the help clinic� again, these students brought yet another perspective to the issues affecting low-income, chronically ill, or disabled clients� beginning in 39 children’s healthcare of atlanta at hughes spalding hospital was constructed with an open floor plan on the first floor of the hospital to house the emergency department, the urgent care center, and the primary care center (pcc)� patients flow between the three areas based on the acuity of their health situation and patient census� if a patient presents in the ed in stable condition and also is treated in the primary care center, the patient will be moved to the pcc for assessment and treatment with their primary care physician� the open flow provides a good opportunity for the law students to be easily accessible to both members of the healthcare team and families in multiple contiguous areas� a model for interdisciplinary clinical education: medical and legal professionals learning and working together to promote public health 164 international journal of clinical legal education issue 18 january 2012, a neonatologist attending physician working on a master in bioethics degree spent 150 hours working with help clinic faculty and students� the ethics discussions in case rounds were very rich� by building bridges, being open to opportunities, and effectively communicating the benefits of collaboration, the help clinic truly has become an interdisciplinary enterprise� conclusion the course is evolving as the partners continue to deepen their relationships� feedback in the form of formal course evaluations, the help evaluation instrument, and informal exit interviews of the law and medical students assists the faculty in implementing changes and validating successes of particular class sessions� with the number of people participating, new ideas continually become apparent, and the faculty share a willingness to experiment with new ways of doing things� while this means that the course and its components are in a constant state of flux, and materials must be redeveloped on an ongoing basis, the rewards that come from seeing new ideas take root more than make up for the trouble it takes to reinvent things� the revelation that sprouts from the ever changing environment of interdisciplinary work is that it is never static, and the number of players and disciplines moving in and out of the project creates opportunities for invention� as such, it provides constant fertile ground for ideas to emerge about the development of education for each profession, and ways in which students can engage with one another to become better doctors, lawyers, social workers, and public health professionals� an ongoing opportunity exists therefore for each type of student to become prepared for the practice of their profession in a fast moving, ever changing modern world� special issue: european network for clinical legal education 6th conference editorial clinical legal education: innovating legal education in europe paul mckeown northumbria university, uk paul.mckeown@northumbria.ac.uk how often do we attend a conference, listen intently as various colleagues from around the world share their thoughts, their experiences, their ideas? how often, following the delivery of a paper, is the room electrified with discussion as clinical colleagues are energized with their own thoughts and ideas based upon what they have just heard. we take these thoughts and ideas, we debate them, we test them, we adapt them and we implement them into our own practice. the aim is to enrich and enhance our field. there is a problem however. often, those thoughts and ideas, the content of the discussions remains with the people who attended that particular session of the conference. many clinical colleagues may not have been able to attend the conference; those who did may have been attending a different session. as such, they have not been able to participate in the discussion. the european network for clinical legal education held its 6th conference in turin on 20th and 21st september 2018. we wanted to share some of the thoughts, ideas and experiences discussed throughout the course of the conference to open up the debate beyond those who were able to attend. this special edition brings together a selection of papers delivered at the conference. read, enjoy, discuss, and learn… 1 reviewed article: teaching and learning in clinic community projects: extending the community lawyering model judith mcnamara1 catherine campbell2 and evan hamman3 queensland university of technology, australia j2.mcnamara@qut.edu.au part i introduction law schools in australia and the united kingdom are increasingly adopting clinical legal education (cle) as an important part of their curriculum. models of cle are emerging in those jurisdictions which draw on local experience and the strong tradition of cle and community lawyering in the united states. the purpose of this article is to examine the pedagogy that underlies cle and to consider how it can be applied to newly emerging models of cle. in particular, it will evaluate a community project legal clinic in which students work on social justice projects in partnership with a range of community organisations, not limited to legal centres, with a view to determining whether pedagogical goals are being met in the way that 1 judith mcnamara1 is an associate professor and head of school at qut faculty of law. she researches in legal education 2 catherine campbell is a sessional academic at qut faculty of law. she researches in community legal education and legal clinic 3 evan hamman is a sessional academic at qut faculty of law. he researches in environmental law and is involved in delivering qut’s clinical programs. the authors wish acknowledge the contribution of ms nadine bradley who conducted and analysed the student focus groups. 1 mailto:j2.mcnamara@qut.edu.au the course is being delivered. this article argues that community project legal clinics can result in positive student learning outcomes in relation to the development of a pro bono ethos and commitment to social justice, lawyering skills including client communication, and the development of a positive professional legal identity. part ii of the article provides a brief overview of the history of cle in australia, the united kingdom and the united states, noting the trend towards the development of community lawyering clinics. part iii examines the benefits of community lawyering clinics focusing on the benefits for student learning and the service-learning pedagogy applied in community lawyering clinics in the united states. finally, part iv looks at a case study of a new community project clinic in australia that draws upon the service-learning pedagogy of community lawyering cle. in the community project clinic, students engage in service-learning through undertaking projects with not-for-profit community organisations. community partners identify relevant issues and needs, and the students work in interdisciplinary teams to address these. law students working in these teams are often exposed to a broader social problem or issue than they would experience in a traditional ‘in-person’ legal clinic. initial evaluation suggests that this model for community clinics in law schools assists students to develop lawyering skills and a positive legal identity including awareness of and support for pro bono legal work and a sense of belonging in the legal profession. 2 part ii: overview of the development of cle cle in australia the first legal clinic in australia was established at monash university in the mid1970s.4 since then, the development of cle has been a somewhat slow process.5 giddings attributes the lethargy to an ‘uneasy relationship’ between academics and practicing lawyers and a reliance on ‘apprenticeships’ as the main method of preparing junior lawyers for the profession.6 in the last few decades however, the uneasy relationship between the academy and the profession has been substantially mended. almost every law school in australia now offers cle or a similar practical experience to their students. some, like the university of queensland, offer several clinics per semester in partnership with a variety of external community legal centres.7 others, like monash university and the university of new south wales (unsw) maintain long established centres which form part of the law school itself (monash-oakleigh legal service and kingsford legal centre respectively). clinics in australia have continued to maintain a strong focus on access to justice and providing ‘service’ to the community.8 whilst these goals haven’t changed, the methods for delivering cle have evolved significantly. a general trend is now being 4 jeff giddings, ‘promoting justice through clinical legal education’ (justice press, 2013) 9 5 ibid. 6 giddings, above n 2. 7 university of queensland, pro bono centre submission to productivity commission on access to justice review <http://www.pc.gov.au/__data/assets/pdf_file/0005/129740/sub074-access-justice.pdf> 8 giddings, above n 2, 10. 3 http://www.pc.gov.au/__data/assets/pdf_file/0005/129740/sub074-access-justice.pdf observed away from traditional ‘on-site’ models towards clinics that are joined, or, as giddings describes it, ‘grafted’, onto existing community organisations.9 one major advantage of grafting models is that they can be less expensive because infrastructure costs can be shared between the partners.10 further, such models are seen to be flexible and don’t necessarily “tie the law school to the provision of a yearround service.”11 recently, australian clinics have even experimented with interdisciplinary models where students from different disciplines assist in resolving complex socio-economic issues faced by disadvantaged clients.12 at the monash-oakleigh legal service (mols) in victoria, for instance, finance and social work students work alongside law students to provide a broader range of assistance to clients.13 pedagogical outcomes achieved through the mols model include: a ‘lateral analysis’ of problem solving, opportunities for collaborative team work, and a better understanding of the non-legal aspects of legal work.14 9 ibid. 10 giddings, above n 2, 10. 11 ibid, 104. 12 the united states has led the way in interdisciplinary cle. there are, in fact, a variety of models of interdisciplinary collaboration now recognised in the united states. see karen tokarz, nancy l. cook, susan brooks and brenda bratton blom, ‘conversations on “community lawyering”: the newest (oldest) wave in clinical legal education.’ 28 journal of law & policy 359-402, 382. 13 foster, richard ‘multi-disciplinary practice in a community law environment: new models for clinical legal education’ (2013) 19 int'l j. clinical legal educ. 413, 419. 14 ibid. 4 cle in the united kingdom like australia, the growth of cle in the united kingdom (uk) has been relatively slow.15 the uk’s first legal clinic established at the university of kent in 1973 was closed just three years later. the closure of the clinic left an indelible impression on both uk law schools and the legal profession.16 adrian taylor, the original founder and supervisor of the kent clinic, 17 seemed to attribute the clinic’s failure to an uneasy relationship between lawyers and academics (like in australia) and a degree of confusion as to what strategic direction the clinic should take: a social or legal emphasis. 18 after the university withdrew funding in 1977, taylor reflected on the challenges the clinic had faced: ‘my own view was that a failure to connect was basic to the existing situation. our students seemed to me to be confused by conflicting demands to think like lawyers and to undertake social critiques.”19 taylor also noted that in the uk at the time: “the prospect of expansion of higher education in the early 1960's [had] caught academic lawyers in a state of unpreparedness.”20 it was likely this ‘unpreparedness’ which lead to strategic confusion and disconnect which brought on the ultimate demise of the kent clinic.21 15 giddings, above n 2, 126 16 ibid. 17 sadly, adrian taylor passed away in january 2014. see university of kent, news <http://www.kent.ac.uk/giving/lawcampaign/news/index.html?view=173>. 18 adrian taylor ‘clinical legal education’ (1977) 2(2) studies in higher education 137-147. 19 ibid, 144. 20 taylor above, n 16, 138. 21 the kent law clinic was re-established in 1992. see university of kent, news <http://www.kent.ac.uk/giving/lawcampaign/news/index.html?view=173> for further analysis of the kent clinic see william m rees, clinical legal education: an analysis of the university of kent 5 http://www.kent.ac.uk/giving/lawcampaign/news/index.html?view=173 http://www.kent.ac.uk/giving/lawcampaign/news/index.html?view=173 recently however, cle in the uk has experienced a surge of popularity. law schools have realized the enormous benefits to students (and society) and have now embraced clinical programs as a regular and routine part of training their junior lawyers.22 the uk approach to cle is strongly connected to the experiential learning model:23 a method of learning which is driven by students engaging in ‘reflective practices’ which helps to promote change in the student’s attitudes to their future career.24 as clubb writes: ”experiential learning is recognised as promoting more effective, deeper and contextualised learning, promoting insight into the professional values, and can illuminate as to the impact of 'policy' and the concepts of what some term 'social justice issues’ “25 the concept of experiential learning is neither new nor specific to the uk. writing in the journal of professional legal education in 1989, downs pointed out: ”a movement [resembling experiential learning] has been evident from as early as the mid-nineteenth century as a means of redressing the balance between abstract learning and practical experience.”26 model (1975), 9 law teacher 125. professor avrom sherr also wrote an account of a similar clinic at warwick established in the 1970s. see avrom sherr, clinical legal education at warwick and the skills movement: was clinic a creature of its time? in g wilson, (ed) frontiers of legal scholarship (john wiley & sons, 1995). 22 karen clubb, ‘masters of our destiny the integration of law clinic into post graduate masters provision.’ (2013) 19 int'l j. clinical legal educ. 395. 23 ibid, 398. 24 clubb, above n 20, 398. 25 ibid, 397. 26 r downs, ‘experiential learning: in a practical legal training course’ (1989) 7(2) journal of professional legal education 141-147, 142 6 like australia, the uk has experimented with different approaches of delivering cle. recent research, for instance, has looked at the use of cle in the uk at the postgraduate level.27 it is thought at the masters level, perhaps due to their own life experiences, students can engage in a wider appreciation of the socio-economic factors which underpin the client’s concerns.28 postgraduate students are expected to offer creative and original responses to issues and of both procedural and substantive justice that face those disadvantaged in the community.29 cle in the united states – trends in community lawyering in contrast to the uk and australia, the development of cle in the united states (us) has enjoyed a rich history. early clinical programs emerged in the first half of the twentieth century and although pedagogical outcomes were not the original goal, the benefits of face-to-face client contact were still recognised.30 the 1960s saw a ‘blossoming’ of legal clinics in the us aiming to provide greater social justice outcomes for communities. 31 as brodie remarks, this was largely in response to increased “demands for social relevance”32 likely influenced by the us civil rights movement of the time. 27 clubb, above n 20. 28 ibid, 398. 29 clubb, above n 20, 398. 30 juliet m. brodie, ‘little cases on the middle ground: teaching social justice lawyering in neighborhood-based community lawyering clinics’ (2009) 15 clinical law review 333, 335. 31 ibid. 32 brodie, above n 28, 335. 7 in the last few decades, a particular ‘resurgence’ or ‘theme’ of cle experiences has emerged in the us known as ‘community lawyering.’33 karen tokarz and other researchers self-identify as ‘community lawyers’ and “teachers of community lawyering clinics.”34 the community lawyering model can be neatly summarized as: ”an approach to the practice of law and to clinical legal education that centers on building and sustaining relationships with clients, over time, in context, as a part of and in conjunction with communities.”35 community lawyers in the us have been involved in a wide variety of projects including litigation, mediation, transactional work, law reform and legal education, all of which aim to benefit the community.36 their response to issues of injustice is predominately at a local level rather than broader national or regional responses. 37 interdisciplinary collaboration is also at the core of the approach with participants often partnering with professionals from other disciplines including social work, urban planning and business administration.38 ultimately, however, what really sets us community lawyering apart from more traditional cle models is the emphasis on longer term community change. torkaz writes of community lawyering “transcending individualized claims” in order to 33 ibid, 334. 34 karen tokarz, nancy cook, susan brooks and brenda bratton blom ‘conversations on community lawyering: the newest (oldest) wave in clinical legal education’ (2008) 28 journal of law & policy 359-402, 360. 35 ibid, 363. 36 tokarz et al., above n 32, 363. 37 brodie, above n 28, 344. 38 tokarz et al., above n 32, 363. 8 achieve real “structural change” in the community.39 the method involves working with rather than for the community to deliver lasting change. it is this deeper level of collaboration and promotion of self-determination in society that can yield real and sustained benefits for communities not to mention life changing experiences for students involved. in this way, community lawyering models have made a unique contribution to cle in the us.40 the emphasis on the interdisciplinary context of social problems has led us lawyers (and students) to deeply appreciate and even take on roles that fall outside of conventional legal work – such as community organizers, anthropologists, or social workers.41 part iii: the benefits of community lawyering clinics community lawyering clinics can improve law teaching and learning, raise social justice awareness of law students and enhance the role of law and lawyers in society by helping law students to develop their social justice consciousness and take on the challenges of addressing social issues in systematic ways. 42 karin and runge assert that community lawyering clinics have an important role in teaching students about 39 ibid. 40 brodie, above n 28, 334. 41 tokarz et al., above n 32, 379. 42 ibid. 9 social justice and the role of lawyers in creating social change, and instilling a community service/pro bono ethos: ”we believe that law clinics can be designed to teach students that lawyers have a variety of strategies and legal tools at their disposal to create social change, including individual representation, organizational representation, community education, and policy advocacy.”43 further, goldfarb argues they can provide a real sense of professional purpose; “the prospect that professional identity can serve a public good greater than oneself ... that can enable law graduates to thrive in their professional lives and to contribute at the same time to the thriving of others.”44 a sense of professional identity is the ‘third apprenticeship’ of identity and purpose identified in the carnegie report.45 community lawyering models can thus provide a meaningful experiential learning opportunity where students can make an impact outside the classroom. importantly, they bring students out of the protective environment of the university and, as barry remarks, “into the community – often to physical locations and social situations that students have not encountered before.”46 such experiential learning enables students to develop a more holistic professional identity by creating opportunities for self43 marcy karin and robin runge, ‘toward integrated law clinics that train social change advocates’ (2011) 17 clinical law review 563, 570. 44 phyllis goldfarb, ‘back to the future of clinical legal education’ (2012) 32 boston college journal of law & social justice 279, 283. 45 william m sullivan et al, educating lawyers: preparation for the profession of law: the carnegie foundation for the advancement of teaching. (jossey-bass, san francisco, 1st ed, 2007). 46 margaret m barry, a rachel camp, margaret ellen johnson, catherine f klein and lisa v martin, ‘teaching social justice lawyering: systematically including community legal education in law school clinics’ (2012) 18 clinical law review 401, 444. 10 reflection and for the development of “a deeper and more nuanced understanding of social issues confronting their clients and the broader community.”47 in addition to the benefits for student learning, community lawyering clinics also provide significant benefits in addressing social justice issues by allowing students, academics and communities to work together to address social problems. golden argues that complex social problems can more readily be solved by lawyers working collaboratively with community and with other disciplines. 48 the inclusion of interdisciplinary work is a crucial innovation as it “deepens the ability of lawyers and law students to speak languages outside their comfort zones and enhances their ability to identify and cultivate additional resources and partners.”49 as noted above, the community lawyering model which emerged from the us is uniquely suited to students engaging in interdisciplinary work. its focus on broader problem solving (rather than strict legal analysis and application) encourages a holistic approach to community empowerment spanning non-legal disciplines like social work, mental health, information technology, design and business administration.50 lastly, as barry remarks, community lawyering clinics can reach “segments of community not necessarily reached by traditional legal services, provides support 47 ibid 445. 48 robin s golden, ‘collaborative as client: lawyering for effective change’ (2012) 56 new york law school law review 393. 49 tokarz, above n 33, 380. 50 see for instance: foster, richard ‘multi-disciplinary practice in a community law environment: new models for clinical legal education’ (2013)19 int'l j. clinical legal educ. 413. 11 for individuals not involved in litigation, responds to non-legal concerns or concerns unable to be redressed by the law, develops leadership skills within the community, and transfers knowledge and encourages collaboration within and among communities”.51 service-learning pedagogy generally, cle adopts an experiential model that involves four stages: experience, reflection, theory and application.52 community lawyering clinics apply the clinical pedagogy focussing on personal and professional values of service in the context of working with and for the community. service-learning therefore provides an opportunity for law schools to adapt the experiential pedagogy of cle to the community lawyering context.53 in service-learning, students undertake community service while engaging in reflective practice in relation to their learning during the service. service-learning has been defined as:54 ”… a course-based, credit bearing educational experience in which students (a) participate in an organized service activity that meets identified community needs and (b) reflect on the service activity in such a way as to gain further understanding 51 barry et al., above n 49, 406. 52 roy stuckey, best practices for legal education: a vision and a road map (2007) <http://cleaweb.org/documents/best_practices_for_legal_education_7_x_10_pg_10_pt.pdf>. 53 for an in depth discussion of the role of service-learning in the law school curriculum and the relationship between service-learning and legal clinics see laurie a morin and susan l waysdorf ‘the service-learning model in the law school curriculum’ (2012) 56 n.y. l. sch. l rev 561, 567. 54 r g bringle, j a hatcher and r macintosh, ‘analyzing morton‘s typology of service paradigms and integrity’ (2006) 13(1) michigan journal of community service-learning 5, 12. 12 http://cleaweb.org/documents/best_practices_for_legal_education_7_x_10_pg_10_pt.pdf of course content, a broader appreciation of the discipline, and an enhanced sense of personal values and civic responsibility.” in the law school context, service-learning has been said to be “related [to], yet distinct from clinical legal education.”55 it enhances both doctrinal learning of law and cle by providing an authentic setting for students to engage in social change lawyering and to develop their sense of professional identity. accordingly, the service-learning pedagogy can be seen as ideal for community lawyering clinics. according to morin and waysdorf:56 ”within service-learning, every experiential second is a teachable, if not also disorienting, moment. in short, what is “learned” in the process of effective servicelearning is more than deeper subject matter knowledge or retention of clinical practice skills. more importantly perhaps, students gain self-knowledge brought on by intentional learning through collectivized social justice action. the notion is that becoming a ‘better person’ will lead to becoming a better, more empathetic, and, therefore, more effective attorney.” while the focus of morin and waysdorf’s work is on responses to crisis situations (e.g. hurricane katrina and the gulf oil spill) their comments can also be extended to more immediate 'local' issues. in such a case, the community issue is often more localised and likely less dramatic but with the same potential for significant community harm if left unaddressed. the queensland university of technology 55 laurie a morin and susan l waysdorf, ‘the service-learning model in the law school curriculum’ (2012) 56 n.y. l. sch. l rev 561, 594. 56 ibid, 595. 13 (qut) and environmental defenders office, queensland (edo qld) clinic,57 now in its third year, is a good example of service learning in this context. significant mining and coal seam gas extraction in queensland, if left substantially unaddressed by governments and civil society, could result in severe long-term community (and environmental) impacts. ultimately, it is the ‘flexibility’ of service learning which allows it to respond to emerging issues – whatever the scale.58 an element of service-learning that is essential to student learning outcomes is reflective practice. through reflection, the legal clinic pedagogy of personal and professional service is retained and becomes the focus of student learning. the reflective process allows students to identify their values and beliefs, confront prejudices and bias, question their assumptions, consider alternative perspectives, and ask ‘why’.59 service-learning may prompt students to more fully understand social problems and lose their previously held beliefs in their individual capacity to effect social change. they develop their critical thinking skills and also identify areas for personal change and career goals. in documenting their learning, they can evaluate their reflections and observe change over time. guided reflection tasks make explicit links between academic learning (discipline-based content) and civic 57 for analysis of the edo-qut partnership see evan hamman, rowena maguire and judith mcnamara (2014) ‘pro bono partnerships in environmental law: enhancing outcomes for universities and clcs’ 39(2) alternative law journal 115-119. 58 morin and waysdorf, above n 58, 565. 59 e t pascarella and p t terenzini, how college affects students: a third decade of research. (jossey-bass, san francisco, 2005). 14 learning by “calling attention to the public dimensions and responsibilities of professional practice.”60 a final point to note is that, in service-learning, it is not necessary that the community partner is a legal organisation or that students work under the supervision of a legal practitioner. this increases the range of projects and community organisations that students can work with which in turn enables more students to undertake valuable clinical experiences. this accords with giddings’ suggestion that law schools should develop methodologies beyond traditional legal clinic models,61 and that “[p]roviding an intense and productive clinical experience for students needs to be balanced with making such experiences available to as many students as possible.”62 part iv: case study in 2013, the qut law school introduced a new legal clinic subject which includes a range of clinical experiences from the live client model to community projects. this case study is limited to an evaluation of the community project experiences which are based on the community lawyering model. the range of projects undertaken by 60 bringle, above n 51, 112. 61 jeffrey giddings, ‘contemplating the future of clinical legal education’ (2008) 17(1) griffith law review 1. 62 ibid, 5. 15 students include community based research,63 community empowerment activities64 and street law projects. the projects were developed through a series of community forums involving members of community organisations, academics working across various disciplines and students.65 participants in the forums workshopped “wicked problems” that had been identified by the community organisations for which there was no ready solution and which they believed students could be of assistance in addressing. the forum organisers had posited that students undertaking such projects could attain valuable learning outcomes through a service-learning approach. given this approach was relatively novel in the institution and that there is limited literature examining service-learning in legal education in australia, the authors chose to undertake a thorough evaluation of the impact of the servicelearning on student learning. this case study is the result of that evaluation. as in other clinical and internship/externship programs, community projects promote understanding and awareness of social justice issues and the notion, as noted above, that ‘becoming better people makes [for] better lawyers’.66 community partners can identify relevant issues or needs and clinical models can then be adapted according to the issue or problem being addressed. students address a 63 james backman, ‘law schools, law students, civic engagement, and community-based research as resources for improving access to justice in utah’ (2006) 4 utah law review 953. 64 see barry et al., above n 49, 404 for examples. 65 motivation to hold the forums was in part due to the requirement of the council of australian law deans (cald) that law schools should seek to engage with the community through programs such as legal clinics, law reform projects, public education, and other forms of pro bono service. see council of australian law deans, the cald standards for australian law schools, (adopted 17 november 2009), 9.6.2. <http://www.cald.asn.au/resources> 66 morin and waysdorf, above n 58. 16 broader social problem or issue than they might be exposed to in clinics or internships. this can include client work, but does not have to be client-based.67 they are also required to be more creative in identifying solutions to address the community issue, and have more control of the project outcome than in traditional clinical programs. this community project model at qut goes beyond the traditional field model where students are always supervised by a legal practitioner. instead students may be supervised by non-practitioner academics working collaboratively with the community organisation. the size and composition of the student groups working with each community partner varies and is dependent on the capacity of the organisation, the nature of the project and the degree of student interest. some groups consist entirely of law students and others involve students from a mix of disciplines, including students from social work, creative industries, information technology, science and psychology. the mix of student disciplines helps to develop a broader range of project ideas and influences project processes and outcomes. particular skills from different disciplines enable students to incorporate a wider range of ideas into their project. working in interdisciplinary teams also strengthens students’ understanding of social issues. working with community organisations in teams to address real problems which are complex and have multiple layers helps 67 ibid, 593. 17 students to understand that legal issues never occur in a vacuum and cannot be isolated from other social issues.68 the opportunity to participate in community-based research is an important aspect of the legal clinic subject. students, academics, and community members work collaboratively on research that is useful to the community partners.69 in such a model, the community partner “serves as an active contributor and agent of change by participating in the design, execution, evaluation, and dissemination of academic research.”70 in addition to their placement requirements (which include meetings with their community partner), students attend workshops on campus which address issues relevant to their placement experiences and their development as future legal professionals. the workshops focus on the fostering of a sense of social responsibility and a pro bono ethos. topics covered in the workshops include reflective practice, alternative dispute resolution (adr) and wellness, cultural competency, collaborative practice and ethical and professional obligations, including pro bono work. it has been argued that lawyers’ professional obligations 68 spencer rand, ‘teaching law students to practice social justice: an interdisciplinary search for help through social work's empowerment approach’ (2006) 13 clinical law review 459. 69 the community projects which have been undertaken in the subject include research for a handbook on mining law for the queensland environmental defender’s office, queensland (edo qld), research for the refugee and immigration legal service (rails) in relation to the impact of a high court decision on refugees and family reunion applications, a community health project with the legal services unit at the royal brisbane and women’s hospital on the use of advanced health directives, a website and dvd on tenancy issues for kyabra community association which assists people at risk of homelessness, and preparation of a report on privatisation of prisons for the catholic prisons ministry. 70 backman, above n 66, 954. 18 extend to active engagement in public debate about society, renewed focus in legal education on legal ethics, engagement in dialogue about law firms’ position as corporate citizens and commitment to access to justice and equality under the law.71 qut students are encouraged to engage with these concepts through listening to guest speakers (including academic specialists and members of the legal profession), participation in workshop activities and completion of readings and reflective writing tasks. an important component of the assessment in the legal clinic subject is reflective assessment. as has been reported elsewhere,72 the authors’ experience has been that students find the process of reflecting challenging, and reflective assessment is resisted by some students. accordingly, care is taken to ensure students are taught reflective practice, receive feedback on their reflective writing, are provided with resources to guide their reflection and that reflective activities are undertaken in class to develop students’ skills. students are required to adopt the 4r’s model of reflective thinking which involves four stages of reflection developed by carrington and selva;73 reporting, relating, reasoning and reconstructing. the levels increase in complexity and move from description of, and personal response to, an issue or 71 f mcleay, ‘pro bono lawyering in the 21st century’ (2001) 19 law in context 16. 72 morin and waysdorf, above n 58. 73 s carrington and g selva, ‘critical social theory and transformative learning: evidence in preservice teachers’ service-learning reflection logs’ (2010) 29 higher education research & development 45. the 4r’s model of reflection was further developed by the australian learning and teaching council funded draw project. further information in relation to the model and teaching resources see queensland university of technology, developing reflective approaches to writing (2011) <https://wiki.qut.edu.au/display/draw/home>. 19 https://wiki.qut.edu.au/display/draw/home situation; to the use of theory and experience to explain, interrogate, and ultimately transform practice.74 students are also assisted in workshops to consider the concept of “privilege” and challenged to “unpack their personal backpacks” which helps them to identify their own values and beliefs and how these impact on their understanding of issues raised by their respective community partners.75 for the first reflection task of the semester (out of two total) students are provided with relevant readings and guiding questions for each of the stages of reflection specifically relevant to the topic. a developmental approach is taken with more guidance given for the first reflection and a more open ended approach taken to the final reflection due at the end of semester. the assessment is rigorous, and is graded on the usual scale, with set criteria for marking which relate to the 4r’s model of reflective thinking.76 methodology the community projects were evaluated qualitatively through focus groups conducted by an independent researcher. focus groups are a method of qualitative 74 j d bain, r ballantyne, c. mills and n c lester, reflecting on practice: student teachers’ perspectives (post pressed, flaxton, 2002). 75 feminist scholar peggy mcintosh argues that white [male] privilege is carried around with us “like an invisible weightless backpack of special provisions, maps, passports, codebooks, visas, clothes, tools and blank checks.” see: mcintosh, peggy. "white privilege: unpacking the invisible knapsack." (1988): 31-36 <https://www.isr.umich.edu/home/diversity/resources/white-privilege.pdf> 76 for examples of criteria used see judith mcnamara, tina cockburn and catherine campbell, good practice guide (bachelor of laws), reflective practice (2013) <http://www.lawteachnetwork.org/resources/gpgreflection.pdf>. 20 https://www.isr.umich.edu/home/diversity/resources/white-privilege.pdf http://www.lawteachnetwork.org/resources/gpgreflection.pdf analysis which typically involve 6–12 people responding to informal questions posed by an interviewer.77 they have been described as: ”…performances in which the participants jointly produce accounts about proposed topics in a socially organised situation.”78 the use of focus groups emerged from the study of sociology in the 1920s.79 since that time, they have been used predominately for market research purposes to serve the needs of business (particularly the retail sector).80 more recently, however, they have been found to be a useful tool in gathering opinions on a range of political issues. 81 one of the biggest advantages of focus groups is that they permit researchers to “observe a large amount of interaction on a specific topic in a short time.”82 several perspectives on an issue can be raised and participants have an opportunity to qualify their answers. the interviewer can also seek to clarify participant responses and direct the emphasis of their questioning accordingly. focus groups can also facilitate discussion of sensitive issues and can elucidate more honest responses than might otherwise be forthcoming in a more formal, structured and ‘routine’ method.83 moreover, the face-to-face nature of focus groups allows non-verbal communication 77 janet smithson, ‘focus groups’ in pertti alasuutari, leonard bickman and julia brannen (eds), the sage handbook of social research methods (sage publications ltd, 2008) 358. 78 ibid, 363 79 smithson, above n 81, 357. 80 ibid, 357. 81 smithson, above n 81, 357. 82 ibid, 358. 83 smithson, above n 81, 364. 21 to play a role in influencing data outcomes, a role often overlooked in purely written methodologies. in addition to the above (more general) benefits, a focus group methodology was deemed appropriate because it would produce the best type of data for the research question being: whether pedagogical goals are being met in the way that the course is being delivered. course designers are constantly searching for creative ways of addressing needs of their students through the structure and delivery of the course. focus groups provide an opportunity to explore several possible ideas during the session itself and ‘test the waters’ with the idea against the other students in the group. lastly, the methodology was deemed appropriate due to the small group size of the clinics themselves (4-6 students) such that students felt comfortable collaborating and sharing ideas in that environment. similarly, focus groups also align with ‘reflective practice’ and ‘participatory action research’ techniques which are familiar to the students as part of the required assessment in the course and elsewhere at qut. participants were recruited for the study via a notice on the subject’s learning managing system website84. two focus groups were conducted, each lasting approximately 1.5 hours. the first group included 5 participants. the second group 84 eight individuals participated in the qualitative study (f = 4; m = 4). participants ranged in age from 22 to 39 years (m. age = 26.25years). the majority of the sample were not married (n = 7) and did not identify with an ethnicity other than australian (n = 5). participants were enrolled in a range of courses including a number of double degrees bachelor of laws/business (n = 3), bachelor laws/graduate diploma legal practice (n=1), graduate diploma legal practice (n = 2) and bachelor of laws (n = 2). the majority of students (n=6) were in the later stages of their degree (i.e., fourth year or beyond). five of the eight participants had prior volunteering experience. 22 included three participants. prior to commencing the group discussion, participants were provided with an information sheet detailing the purpose of the research, the voluntary nature of their involvement, and the measures put in place to ensure their anonymity/confidentiality. all students signed a written consent form indicating their approval to participate and were provided with a $25.00 gift card to thank them for their time. focus groups were conducted using a semi-structured discussion guide. the facilitator used prompts and member checking (e.g., what do you mean by that, can you explain further, do others agree?) during discussions to clarify understanding of participant responses and to gain a deeper understanding of the point at hand. both discussion sessions were audiotaped and were transcribed verbatim by a professional transcription company. once transcribed, the audiotapes will be destroyed. a thematic data analysis was completed by a sole researcher. the analysis process was achieved through a number of steps and with the aid of the program nvivo (qrs). data were initially coded according to the overarching research questions (e.g., why did students choose to enrol in the subject, what did they like best about the subject). a second round of coding was then undertaken based on the emerging themes within each of these initial categories. for example, two strong themes were identified within the realms of why students chose to undertake the subject, these being to build their resume and to explore work options. where sub-themes within 23 these key themes emerged, they were also identified. prominent themes were identified based on both the number of students raising the point as well as the depth of discussion around the particular concept or issue. results of the research the purpose of the research was to ascertain whether student learning in community projects adopting service-learning pedagogy are similar to learning outcomes resulting from other cle experiences, particularly community lawyering clinics. the analysis of the focus groups suggested student learning outcomes were contained within three overarching themes: legal skills including technical skills and broader skills around the lawyer/client relationship; transferable generic skills; and raised awareness of pro bono work and helping individuals to access legal services. in addition, a strong theme also emerged in relation to the transformational impact of the subject in relation to career direction and the development of professional identity. did students develop legal skills as a result of undertaking community projects? while literature in relation to cle often reports the development of practical legal skills as a significant outcome of a clinical experience, this has not been the focus of the literature in relation to community lawyering clinics. as might be expected, the focus groups revealed that the extent of the development of legal skills during the projects varied significantly between projects. some projects such as the refugee and 24 immigration legal service (rails) project involved students using particular legal skills such as legal research and writing and file analysis; however others involved little direct legal skill development. while students expressed that they did not always learn or extend their legal knowledge or skills directly during their placement, they identified that they developed broader skills around the lawyer/client relationship including effective client communication. in addition, they acknowledged the value of this complementary skill set and having their level of awareness around what comprises effective lawyering broadened: ‘we had to get across a certain sort of body of information that was really important because we were trying to get support for our event. and that was like we went from talking to people like [former australian high court judge] michael kirby to just people we wanted to come along. organisations, community really grass roots people. so we needed to be really across the information… and then the other stuff was sort of like event management, just keeping a really like constant professional communication with the organisation. ... to kind of maintain that professional relationship and i felt really good about that actually. because i thought okay i can do this now, i know, i’m confident that you know all the work that i’ve done and that i’ve sort of made this network.’ (female) the research reveals that while the development of practical legal skills might not be as significant in community projects as in live client and other more traditional legal clinics, students do develop transferable skills that will make them more effective lawyers. 25 was student learning affected by the autonomy of the projects? students had varying reactions to the level of autonomy provided to them in the projects. in most projects, community partners presented students with a social issue or problem to respond to. generally, partners did not have a set project or approach they required students to follow; it was for the group of students to work together to develop a plan to respond to the issue. it was not expected that the group would “solve” the problem in a single semester. rather it was hoped that students would make a contribution towards understanding of the problem and progress towards a solution. in some instances projects carry over from groups of students in one semester to another. this autonomy and what might at times be seen by students as a lack of clear direction led to mixed responses from students. for example one student noted; ‘i like that you had some autonomy with what you were doing. it had to obviously meet the needs of your community partner or whoever you were with but there was a bit of scope to just run your own project.’ (unidentified respondent) other students commented on the fact that the projects they ended up completing often differed to those initially detailed to them or to what they had expected to be doing. a few students noted this change as a frustration while others saw it as part of the learning experience. ‘but basically when we met with the community partners again it was like well what do you want to do? they were asking us you know like this is the issue and so we’re like oh, okay. it was so, but i mean that’s a good experience in itself i suppose that 26 kind of autonomy and they definitely supported us. but we had to come up with the ideas and deliver yeah.’(female) while the autonomy was an important aspect of the overall design of the projects leading to transformational experiences for many students, a clear learning early on for subject coordinators was that students need clear support during the project scoping phase and it may take time for the value of the learning experience in the project to be clear to them. there was substantial support within the sample for undertaking pro bono work as legal professionals. while some students simply identified that the subject reinforced their existing, positive beliefs about completing pro bono work, others articulated that their level of awareness about pro bono work was enhanced as a result of their involvement in the subject. while discussion around pro bono work was somewhat more explicit and dominant during the discussions than that pertaining to social justice, there was some evidence that participation in the subject expanded student’s knowledge of the challenges some people may face in society, their understanding of social justice, and the important role of social justice within the legal profession. again, a significant proportion of students agreed that they would endeavour to perform social justice oriented work in the future. ‘‘yeah i do think i was very naive in terms of a lot of the issues like the social justice. like it’s kind of sad if i only realise that in my final year.’ (female) 27 students reported that there understanding of social justice had deepened as a result of undertaking the subject. ‘i suppose i kind of just thought that if i had to really define social justice it’s sort of just one of those floaty concepts and it was interesting to kind of think about it in a different way and it’s not just you know what you sometimes think of you know access to courts and you know fair trial. ... it’s kind of a way of thinking and a way of living as well. it’s sort of just i suppose cemented my values, it made me kind of think about them and articulate them. it’s also about the way they interact with everyone and it’s about sort of thinking about our institutions and how they affect different people and stuff like that. ....’ (female) while it is not possible to draw definitive conclusions in relation to social justice awareness-raising, the research suggests that undertaking community projects does contribute to increasing such awareness. however it should be noted there may be a bias in students selecting the subject having a prior interest in social justice issues and the causal connection is not clear. it is also not clear whether students’ initial positive reaction to social justice issues and commitment to future community service will result in changed behaviour in their future professional lives. did students have any personally transformational experiences? in addition to learning outcomes in relation to lawyering and generic skills and the development of a pro bono and social justice orientation, over half of the sample identified that their involvement in the subject had resulted in a substantial ‘transformation’ for them, personally. the subject had provided individuals with 28 substantial career direction. for some students the career transformation related to individuals identifying an area of law that they felt passionate about or were unaware of previously. ‘i’m interested in a few areas like commercial law and also family. but i’m currently also volunteering at a family law firm and they’re a non-profit law firm. so that combined with doing legal clinic kind of just changed what i could do in my legal career. like before then i just had what everybody else would be trying to do which is you know get into a big firm and get into commercial and that sort of thing. but both of them the volunteer experiences really opened up my eyes how i could really serve the community with law. like i never knew it was possible so….’ (female) in addition to helping students to identify a preferred area of law they wish to pursue in the future, for other individuals the subject played an important role in reassuring them that they would be able to find a ‘home’ or ‘fit’ within the legal profession. ‘i suppose i was a little bit lost because i thought although i kind of enjoyed a few of the intellectual aspects of law i thought that i was a bit of too much of a softy. ... and i thought apart from the advocacy i’m very out of place. and i hadn’t really made any friends or anything like that and i thought i’m sort of was at the point where do i change and do something else or do i stay here? and i thought i’d finish the degree but i wasn’t confident that i would find something i’d be able to give to the …like offer the legal community. ... but there’s so much of like of variety in the legal profession and i think that was really good to know….and also the people that i was working with in the charity they were people who’d finished law and thought you know what? i don’t want to practise, i want to do something else. and so they’ve 29 carved out their little niche and they wrote submissions to the australian human rights commission and all those sorts of things on policy changes ... (female). indeed it seems one of the most transformative effects of the community project work on students related to their sense of belonging as future lawyers and the opening of career options in the legal profession. student comments in the focus groups about the impact of undertaking the subject on their sense of professional belonging is also consistent with reports in their reflective assessment and other feedback provided to the teaching staff. one student commented in the focus groups: ‘i think until this year i was really starting to worry like approaching my last year, worry about how i would use my law degree. what i was just going to do after graduating because i felt like the culture at uni you see ... like law students in general and the legal profession you get this i don't know sort of perception that it’s really aggressive. .... so i thought oh no i have to become this different person to practice as a lawyer and it was scary and depressing sort of. and yeah this unit just really changed that. i think they really give you an opportunity that you can be a real person and you can relate to people as a person. and it’s not a weakness to be a person it’s, i don't know an advantage because you’re really connecting with someone. and you can use your legal skills and help someone holistically yeah.’ (female). the reported developing sense of professional identity is also consistent with the literature in relation to community lawyering clinics. however, this research suggests the development of professional identity goes beyond what has been previously reported, which tends to focus on inculcating values of pro bono service and social justice. given students the subject of this research often reported being 30 pre-disposed towards a social justice orientation, the impact of undertaking community projects on students who were becoming disillusioned with the law towards the end of their degrees in finding a fit within the profession is arguably more profound. conclusion the case study provides evidence that law students who undertake service-learning while engaging in community projects develop a range of transferable skills that will enable them to be more effective lawyers. in particular, client skills in relation to communication and cross cultural competency can be developed. accordingly, the overall design of any service-learning experience for law students should include a focus on client skills (interviewing, dispute resolution and cultural and emotional intelligence). further, subject design should assist students to see the connection between the project, the development of these skills and their future careers. if these skills are not taught during the experience, students may miss the unique opportunity to reflect deeply on issues such as their ability to deal with diversity and to develop empathy while exercising an appropriate degree of professional detachment. in addition to an emphasis on client lawyering skills, the overall subject design needs to address the high levels of support required during the initial scoping phase of the project. this is particularly so where there is a high degree of autonomy in the 31 development of the project, as students may undergo a period of disorientation which in itself is a valuable learning experience. in addition to the development of effective client skills, students undertaking service-learning reported significant personal transformation leading to the development of a positive legal professional identity. this transformation related both to their understanding of social justice and values of community and pro bono service and, arguably more importantly, to their own commitment and sense of belonging to the legal profession. this paper argues that given the current emphasis in legal education on the development of professional service-learning should be considered as an ideal means of achieving this goal. while further research is needed, the initial evaluation of the community projects in the legal clinic unit suggests that community project legal clinics have a similar positive impact on student learning in relation to the development of technical skills, broader skills around the lawyer/client relationship and raising awareness of pro bono work and helping individuals to access legal services as has been reported in other community lawyering clinics. further, they can have a transformational impact on career direction and the development of students’ professional identity. it is suggested that a longitudinal study of the impact of community lawyering clinics on values, and future action in relation to the provision of pro bono and community service, would further contribute to an understanding of the extent to which a pro bono and social justice ethos can be inculcated in students. 32 1 editorial dr lyndsey bengtsson lyndsey2.bengtsson@northumbria.ac.uk i would like to start this editorial by highlighting that in summer 2024 it will be our 10 year anniversary of being online. since the ijcle has been online more than 100,000 papers have been downloaded with an average of over 700 downloads per paper! we think this milestone should be celebrated with a bumper summer 2024 edition. further details on this will follow soon and we will invite you to be part of that. meanwhile, in this edition, we have papers which offer valuable recommendations on how clinical legal education can be developed to further benefit our students, the wider community and those who supervise in clinic. there is a flourish of ideas which link across continents. we begin with anne hewitt and natalie skead’s fascinating article on ‘the resource implications of work integrated learning and legal clinics in australian legal system: managing workload, system support and recognition.’ the article explores the resources required to deliver work integrated learning and the authors present survey data on how this is being accommodated by australian law schools. work integrated learning is a term used to describe learning experiences where students engage with workplaces as part of their legal studies. the authors conclude that there are positive aspects to the workload allocation of such work integrated learning programmes, mailto:lyndsey2.bengtsson@northumbria.ac.uk 2 however concerns are raised in relation to both the level of recognition for the external engagement and administration and valuable recommendations are put forward. students gain valuable work experience when they undertake the student law office law in the community module at northumbria university in the uk, which is the focus of our next article ‘the law in the community model of clinical legal education – assessing the impact on key stakeholders’ by lyndsey bengtsson and bethany a’court. in this module the students conduct volunteer work from the offices of their local citizens advice as part of their law degree. drawing on data from student focus groups and semi structured interviews with the citizens advice supervisors, the authors explore how this model impacts upon law students, citizens advice and the local community. it was found that there are clear pedagogical benefits to the students and to citizens advice with regards to the service they can provide to the local community. the students obtain first-hand experience of the access to justice challenges faced by their local community. however, issues were raised which included how to ensure an equivalent clinical experience for students and effective feedback is provided. the authors put forward important recommendations as to how to overcome these issues. in our next article ‘forming lawyers who can contribute to equitable access to justice in south africa’ by melanie walker and christopher rawson, the researchers interviewed candidate attorneys across six university law clinics in south africa to understand the contribution of university legal education and university law clinics to 3 professional formation, and the access to justice challenges faced. the authors propose that clinical legal education should be evaluated in light of contributions to wellbeing and agency freedoms. from our from the field section hannah franz reflects on the sessions she observed whilst attending the 2022 european network for clinical legal education conference at brescia university in italy. she concludes by highlighting the importance of international collaboration, so that we can continue to all learn from each other and overcome challenges. we also have a piece from alina kislova who discusses the barriers which exist in russia which prevent clinical legal education and she compares this to the european union and the united kingdom. she provides an interesting insight from both a social justice and educational perspective. finally, we look forward to seeing you at the upcoming 9th european network for clinical legal education (encle), entitled ‘enhancing clinical legal education in europe: 10 years of encle and – reflections and what is yet to come!’, on 17th and 18th july 2023 in liverpool. we also look forward to seeing many of you (and hearing about your research in progress) at our upcoming ijcle intensive research workshop on 20th and 21st july 2023 at the law society in ireland. special issue: adrian evans festschrift farewell for adrian speech given via video by professor christine parker, melbourne law school, the university of melbourne. christine.parker@unimelb.edu.au hi adrian! hi everybody! sorry i can’t be there. i didn’t want to miss out on the opportunity to pass on my best wishes to adrian and celebrate what he’s been doing, and particularly in legal ethics. so i’ve made this video with the help of my husband, simon kerr. i thought i’d tell you a little bit about what adrian and i have done together and that’s also a good advertisement for the third edition of our book inside lawyers’ ethics [shows book to audience – see photo].[endnoteref:1] [1: christine parker and adrian evans, inside lawyers’ ethics, 3rd edition, 2018, cambridge university press, melbourne.] i first met adrian when i was doing my phd on lawyers’ ethics and the regulation of lawyers, and i had to interview all of the movers and shakers who were advocating for reform to the legal profession at the time back in 1995. everyone said, ‘oh you must talk to adrian evans’. so i went to melbourne; i talked to adrian evans. i can’t remember what he said(!) but it obviously made an absolutely huge impression on me… about seven years later, i moved to university of melbourne and i wanted a friend and a colleague to write a book with, so i emailed adrian and said, ‘could we have lunch? i’ve got something i want to discuss with you’. he came and had lunch and i asked him to co-author what became inside lawyers’ ethics with me. i’d got the agreement of cambridge university press to do something a bit different to the normal law type text book, something a lot more practical and full of case studies, but still very scholarly. i knew adrian was the perfect person to help me with that because i didn’t have as much practical experience as he had. so, i think what we did in this book really picked up a lot of the things adrian had been doing and continues to do in contributing to lawyers’ ethics and justice in the legal profession. he’d established and worked with the latrobe university law clinic and then springvale monash legal service. he’d been helping people who had bad experiences with the legal system and also bad experiences with lawyers. he’d been teaching legal ethics. he’d been writing a regular column for the law institute journal on legal ethics, and just generally advocating for justice in the legal profession. this book picked all those things up. but that doesn’t really tell you the main thing which is that adrian has a unique combination of passion for justice and for doing the right thing, and compassion and care for people in real situations. i think the best illustration of that is the number of times i’ve met somebody who was a student of adrian’s at the springvale monash legal service and they’ve remembered both the vision that he gave them but also the pastoral care that he gave them. i hope that that’s reflected in the way that we write the book, and in the way that we taught legal ethics together at monash and i continue to teach it at melbourne university. now there’s some things that we tried to do together that didn’t work so well, like for example i think we tried about three times to get a research grant to look at ethics in large law firms, and that didn’t work so well. we never got it -although we did publish a special issue of legal ethics on lawyers’ ethics in large law firms and a hard-hitting opinion piece on the topic.[endnoteref:2] [2: christine parker, suzanne le mire and adrian evans (guest editors), special issue of legal ethics, 11(2), 2008 on “ethical climate in corporate and commercial law firms”; adrian evans, linda haller and christine parker, “mccabe case a lesson for all” the sunday age (melbourne), 5 november 2006, 21. see also christine parker, adrian evans, linda haller, suzanne le mire and reid mortensen, “the ethical infrastructure of legal practice in larger law firms: values, policy and behaviour” university of new south wales law journal, 31(1), 2008, 158-188.] and also, as many of you know, adrian has had a rather unpopular passion for years on the issue of how the interest on lawyers’ trust accounts is used. i used to talk to people and mention adrian and they’d roll their eyes when we got to the interest on lawyers’ trust accounts because adrian has a very strong sense of justice that that interest ethically belongs to the clients.[endnoteref:3] also, as a matter of justice, adrian believes that government should be responsible for funding legal aid as a citizenship right, not as a matter of charity from lawyers. and i think he’s right, he’s convinced me of that over the years. [3: see adrian evans, "professional ethics north and south: interest on clients’ trust funds and lawyer fraud. an opportunity to redeem professionalism." international journal of the legal profession 3.3 (1996): 281-300.] i know that kate seear has organised this event as a festschrift that usually occurs when somebody retires but adrian doesn’t like the ‘r’ word – “retirement” – so that’s not to be mentioned anywhere near adrian. in fact really what he is doing is creating more time so that he can go and save the world from ecological destruction and fight for climate justice. i do remember him coming back from an international bar association meeting where mary robinson had spoken about the urgent need for all of us to do everything that we can do in the fight against climate change and she particularly encouraged lawyers to do something. in the latest edition of inside lawyers’ ethics we do include some discussion of those issues as part of the broader ethics for lawyers. so, to finish off, i, and my lovely husband simon kerr, who is about to appear in this video, thought that we would sing a little song to inspire adrian and all of you in the fight for climate justice (see photo). let’s have one last cheer for coal it’s done so much for humanity but now it’s clear it’s simply mad to burn more coal for energy for reasons that are clear and now it’s time to say farewell so cheerio, our old friend coal cheerio coal, cheerio well let’s have one last cheer for adrian he’s done so much for humanity now it’s clear it’s simply mad to do administration for eternity for reasons that are clear and now well he must save the world so cheerio, adrian, cheerio[endnoteref:4] [4: lyrics written by simon kerr, “one last cheer for coal”, 2018. for more about this work, see www.musicforawarmingworld.org ] 61 problematizing competence in clinical legal education: what do we mean by competence and how do we assess non-skill competencies? donald nicolson1* university of strathclyde, uk. “techniques without ideals is a menace; ideals without techniques are a mess.” karl lewellyn (1952) introduction the special issue of this journal is about problematizing assessment. however, in this article i want to start further back and problematize what is meant by competence. i think it is fair to say that when law clinicians speak about assessing competence they usually have in mind the assessment of skills. by contrast, i will argue that competence goes well beyond skills, at least if we understand skills in the narrow sense of technical legal skills, and includes in addition a values dimension. moreover, if this dimension is added to the notion of skills, and clinical legal education (cle) is expanded to include an understanding of how lawyers’ skills are used, for whom and to what end, it might help reverse the traditional and still continuing antipathy in many law schools to cle. for those like myself, who see law clinics as more about contributing to social justice than legal education (nicolson 1 donald nicolson is professor of law and director of law clinic in the school of law, university of strathclyde ( special issue problematising assessment in clinical legal education ) ( 100 ) 2006), the reluctance to embrace cle is rooted (rightly or wrongly) in a political and moral stance. but for most academics, the antipathy or, at best, apathy towards cle might be more to do with its association with skills training and the consequent assumption that it is unintellectual, unfit for the lofty heights of a liberal legal education and thus best left for the grubby business of preparing lawyers for practice (see eg bradney 1995, 2003, brownsword, 1999; guth & ashford, 2014). to the extent that cle is confined to training students in legal skills, i have some sympathy with this view, though it’s questionable whether skills training is any less intellectual than the sort of repetitive, decontextualised and atheoretical teaching of black-letter law which often passes for a liberal legal education. however, in a recent article (nicolson 2015), i joined a number of others who have argued that there is nothing necessarily anti-intellectual about a focus on practice in a liberal legal education. thus, like goldsmith and bamford, i do not see engagement with practice in purely vocational or technocratic terms, but as providing opportunities for connecting the “aspirations of law students with professional ideals (justice, service, fairness) and the goals of a university-based education” (goldsmith and bamford 2010, p. 163; see also goldsmith 1999, 2002; boon 1998, 166). in this article, i first flesh out this argument and justify the focus on ethical as well as skills competence in clinical legal education. i then turn from problematizing the concept of competence per se to problematizing its assessment. this will be done via a critical analysis of the forms of assessment used in the clinical programme offered in the university of strathclyde law clinic (henceforth, the uslc). these include the assessment of simulated training exercises, work on actual cases, reflective essays on aspects of law, legal ethics and law’s justice and reflective diaries on all aspects of clinical experience. drawing on my experience with these different forms of assessment, i will consider their comparative merits in contributing to the two classic goals of clinic assessment, namely reliability – whether the scores obtained from an assessment are reproducible and validity whether the assessment does in fact measure what it is intended to measure (van der vleuten and schuwirth 2005). finally, drawing on the assessment regimes in the relevant clinical classes, i will seek to provide some food for thought about alternative means of assessing clinical teaching. problematising the notion of competency most people think of competent lawyers as those who are knowledgeable and technically skilled at using law in the service of clients. assessment of competence is thus not made in terms of ethics and values indeed they suggest a perceived mutual exclusion of technical and ethical competencies. such a dichotomy is, however, both dangerous and false. it can be seen to be dangerous when we ask ourselves the question – do we really want lawyers who are highly skilled at achieving client goals when it is those with power and money who can afford such lawyers, while their opponents either have lawyers who are overworked and underfunded or have no lawyers at all? the dichotomy between skills and values is, in addition, false because lawyers with ethical competency may in fact be more effective lawyers than those who are merely technically competent. indeed, this is at least implicitly recognised by those (cf chavkin, 2003-4, 254) who seek to train students in client-centered lawyering (see eg binder, bergman, & price 1991) in that always seeking clients’ informed consent to actions on their behalf helps to promote their autonomy and avoids the paternalism which is inherent in more traditional approaches to client relations in which lawyers make all decisions about how to achieve client ends (see eg nicolson and webb, ch 5). ostensibly, the traditional approach leaves clients free to set their own ends, but this means-ends distinction is unsatisfactory for a number of reasons. one is the fact that power and (at least, assumed) knowledge asymmetries between lawyer and client may encourage the latter to defer to the former on issues regarding ends as well as means, especially if clients interpret a lawyer’s suggestions as to what they should seek to achieve as technical advice. another reason is that some decisions as to means might be so significant that the client really should take them rather than the lawyer. for instance, the most effective means to win a child access dispute might be to attack the opposing parent’s character but and especially if this is done using information provided by the client this might not accord with the client’s best interests or even his or her wishes (let alone those of the children), given that they are likely to benefit from an ongoing amicable relationship with the opposing parent. but even under the client-centered approach, unless they are exposed to the full range of issues relevant to the issue of paternalism, students might not become aware of their ability to sway clients even while affording them the power to decide (see eg ellman 1987). this may occur through decisions as to which of the (sometimes myriad) options on offer to put to the client, the way that the choice of alternatives are structured and/or merely by tone of voice in presenting options (simon 1991). improved client service can also be achieved by challenging the standard conception of lawyers’ role morality in terms of which lawyers are expected to pursue their client’s goals irrespective of how immoral they might be or how immoral the means to those goals. such a stance – often called that of neutral partisanship (see eg nicolson and webb 1999, ch 6) not only poses dangers for opponents, third parties or the public interest, but arguably it may also result in inferior services to the client. if lawyers see issues of morality as off-limits, they will not engage their clients in what ethicists call a moral dialogue in which they explore whether certain courses of action are moral and can justifiably be pursued. such moral dialogue is not just a necessary component of what is called moral activism (see nicolson and webb, ch 8), as opposed to neutral partisanship, but it may provide a better service to the client. for instance, in one case the uslc was acting for a trainee solicitor made redundant by a law firm while pregnant. she mentioned in passing that the same partner responsible for this decision has been accused of sexual harassment. but instead of just going ahead to use this information as a bargaining chip, having studied ethics, the student asked the client how she felt about using this information and surprisingly learnt that she was not prepared to stoop to using this “dirty trick” (see nicolson 2010 for this and other examples; aiken, 2000-1, 304 for a similar example). encouraging students to abandon the stance of neutral partisanship may also lead to more empathetic and zealous services for those who do not have the financial resources to buy maximum lawyer zeal. there is a strong argument (see nicolson and webb, 1999, ch 6) that neutral partisanship leads to moral detachment, in terms of which lawyers seek to psychologically distance themselves from their moral feelings and beliefs. but this can be argued to hamper the development of the aristotelian quality of phronesis (practical wisdom), in terms of the lessons of past experience equip lawyers to instinctively know how to respond to practical and ethical issues which arise in practice. according to postema, phronesis is rooted in “ordinary moral beliefs, attitudes, feelings and relationships” (1980, 78; see further postema, 1980, 68ff; postema, 1983, 306ff) and is extremely useful in professional contexts where novel situations arise (see also kronman, 1987 and 1993). moral detachment may also hamper effective lawyering in the sense that moral arguments may play important roles in legal argumentation (cf postema, 1980, 79). lawyers who have shut off their moral faculties are less able to manufacture such arguments than are those with deep moral sentiments. the neutrality aspect of neutral partisanship may also undermine the principle of partisanship with requires lawyers to represent their clients zealously. while written discourses on professional legal ethics certainly encourage lawyers to exercise the utmost zeal, the rules allow them a broad discretion to exercise greater or lesser zeal (nicolson and webb 1999, ch 6). such zeal can be so fierce as to run the risk of breaching professional norms on proper behaviour, or it can be so minimal as to come close to incompetence. however, according to the neutral partisanship conception and its allied strategy of moral detachment, the question as to how much zeal lawyers should exercise in particular cases ought not to be answered by considerations of morality. moreover, with the shutting down of moral feeling may also come a shutting down of related feelings of empathy, sympathy and concern. having detached themselves from moral sentiments, lawyers can no longer see clients in their full humanity. the lawyer becomes interested only “in that part of the client that lies within his or her special competency” (wasserstrom, 1975, 21). the plight of clients and the possibility of them possessing the moral high-ground are unlikely to lawyers who come to see clients as “the divorce”, “the taking without owner’s consent” or “no.20, queens road”. this situation is given bathetic force by the comment of paul hill, one of the guildford four who spent years in jail following his wrongful conviction for murder, that he “got the impression that any of our barristers could easily have...taken over the running of the prosecution.”(stolen years (with ronan bennet), 1990, 126, quoted in pannick, 1992, 132.) having detached themselves from feelings of morality and humanity, it is likely lawyers will ration zeal according to more material considerations: by the client’s status, whether they are one-off or regular clients, by the need to maintain salubrious relationships with those with whom they regularly deal, etc, but above all by their ability to pay. a lawyer’s time and energy are not infinite and given the pressures to provide legal services as a profitable business, money is likely to be the quid pro quo for zeal, and the more quid, the more pro. we thus see that the competent lawyer is also an ethical lawyer who displays both technical competence and a concern for values. ethics have a role to play in providing a good service to the client – including care, consideration and respect for clients’ autonomy (as well as maintaining confidentiality and acting in their best interests). in this first sense, it is not too much of a stretch to see these attributes as matters of lawyering skills in that the good lawyer is not just technically skilful but has what might be called personal or even emotional skills. however, the importance of ethics also has a second, wider (if you like, public as opposed to private) dimension. thus, it can be argued that the good lawyer is not just good at their job. they are also good in their job (or just good full stop) in the sense of being aware of the wider moral dimension of being a lawyer. they are not simple amoral technicians prepared to do everything legal and not prohibited by their professional codes for their clients, but take account of the harm they might do to others, to the legal system and to the public interest. before looking at the role of law clinics in helping to develop this wider conception of competence, it must be stressed that even an expanded notion of competence which goes beyond knowledge, skills and ethics in the sense discussed above, does not go far enough because it does not extend to what i see as perhaps the most important ethical value. this is the sense of obligation to ensure that competent and ethical services are not just received by those with enough money to pay for them or fortunate enough to qualify for the constantly shrinking legal aid pot. as i have recently argued (nicolson 2013, 2015), notions of reciprocity or gratitude towards the community which through its taxes pays for school education and, still in scotland, for much of the cost of legal education suggest that lawyers have a moral obligation to contribute in some way to enhancing access to justice. public investment in their education enables law students to enjoy substantial financial rewards. however, only those fortunate enough to afford lawyers or qualify for legal aid benefit from this investment. moreover, a major obstacle to access to justice is the high fees charged by lawyers. consequently, it can be argued that these lawyers have a moral duty to take some remedial action to repay those who helped put them in their privileged position, but do not benefit from this investment. two further arguments support a moral obligation on lawyers to enhance access to justice. one is that their earnings are partly – albeit decreasingly – protected by state limitations on who can practice law and access legal processes. secondly, many access to justice problems, especially of a relative nature, stem from often unnecessary and difficult to understand legal complexities created by lawyers serving their clients (and indirectly themselves by making legal assistance more necessary). here, lawyers can be said to have a moral obligation to help remedy the resultant access to justice obstacles. indeed, by analogy with rawls’s argument that “[j]ustice is the first virtue of social institutions” (rawls, 1999, 3), it can be argued that the first virtue of the ethical lawyer is to ensure access to justice. it seems obvious to me that ethically aware lawyers who either devote their career to those most in need of legal services or provide pro bono legal services are an improvement on those who provide ethically aware services to the shrinking group of those who can afford to pay or obtain legal aid. in addition, the goal of making practitioners aware of problems with neutral partisanship, confidentiality, conflicts and client autonomy is undermined where their scope for moral manoeuvre is highly constrained by financial considerations which cast morality as an unaffordable luxury or where responsibility for ethics tends to fall into the cracks because of the increasing specialisation of legal work or completely out of sight because of its increasing routinisation (see nicolson and webb, 1999, ch. 3). accordingly, while it is difficult to stretch the concept of values-based competence to include the notion of an altruistic duty to enhance access to justice (except by unrealistically stretching the concept of competence to something like altruistic competence), i would argue that we are failing in our role as educators if we do not give due weight to this aspect of being a good lawyer. the goals of clinical legal education having problematized the notion of competence, i turn now to the possible role clinical legal education may have in instilling this expanded sense of competence and the expanded notion of the good lawyer. van der vleuten and schuwirth correctly argue that choosing assessment always involves compromises (2005), but the same applies to cle. broadly speaking, cle can be designed to serve four broad goals: · skills development, both in narrow technical and broader values-infused sense; · teaching substantive law in context; · ethical education – sensitising students to issues of legal ethics, providing them with the relevant tools to resolve them, and hopefully also encouraging them to care about being ethical and developing the moral courage to resist competing pressures (see generally nicolson, 2008); · ensuring “justice readiness” – exposing students to social and legal injustice, including inequalities in access to justice and helping them to understand its causes and to care about addressing these causes (see aiken, 2012; wizner and aiken, 2004; nicolson 2015). if all law teaching was conducted clinically, then it might be possible to achieve and give equal weight to all four goals, but resource implications mean that most law schools restrict clinical legal education to a term or two, and/or only to a limited number of students. this restricts what can be achieved. consequently, most clinicians need to make choices as to which of the goals to prioritise when they clash. for instance, if one’s goal is to maximise justice readiness then exposing students to as many vulnerable clients as possible broadens their perspectives on the injustice of the world they live in and the extent to which law is either unable to rectify these injustices or is even responsible for them. thus, drawing on educational theory, many clinicians claim that student exposure to clients may cause “disorienting moments” (quigley, 1995) whereby their pre-existing assumptions about the world clash with their observation of social deprivation, unequal access to justice and substantive legal injustice. moreover, when the experience is that of someone in dire need and it is realised that they may have no source of assistance, knowledge may be transformed into empathetic care and hopefully into a commitment to enhance access to justice on graduation. however, for these insights to go deep, exposure to the problems of social and legal injustice need to be repeated with the greater the exposure the more varied are the problems students will encounter and the more they will realise that these problems are endemic rather than exceptional (aiken, 1997; wizner, 2000-1; nicolson, 2008; brodie, 2008-9). clinics with a high volume of cases are thus better suited to ensuring justice readiness. by contrast, if the focus is on skills development (and possibly also substantive law teaching), students will benefit from a close relationship with clinic supervisors who can guide their learning and skills development and allow them to experiment with different ways of practising law so that they can help them to learn from their mistakes as they make them. this is why the clinical legal education organisation suggests a staff-student ratio of 1: 12 (cleo, 1995, cited in brayne, duncan and grimes 1998, 120-135), while the average in us is between 1:6 to 1:10 (mcdiarmid 1990, 254-55) at the uscl, however, we have a ratio of around 1:150! this is largely because most students’ involvement is voluntary. in fact, while the law school wanted the clinic to be used for teaching the diploma in professional legal practice, i insisted that it be offered primarily to undergraduates and solely on an extra-curricular basis. at the time, i had a number of reasons for insisting on an extra-curricular clinic which prioritised enhancing social justice over legal education (see nicolson, 2006), though these were not as thought through as they are now. · perhaps the most immediate was the concern, prompted by the apparent experience of other uk clinics, that students might abandon clients or deprioritise their needs once they have received the required credit for their work. · closely related to this, was the worry that the prioritisation of legal education over serving the community by the law clinic itself and its staff conveys an implicit message to students that their interests now education, later commercial trump those of clients and the community. in my view, there is also something inherently morally problematic about practising law on the poor (rather than for the poor) – even if the latter do benefit from such practice. · more recently, i have formed the view that all those who benefit from legal education – including those who make their living by teaching law have a moral obligation to ensure that these benefits extend to all in society, not just to those who can afford lawyers’ fees or qualify for legal aid (see nicolson 2013, 2015). students can volunteer to provide free legal services to those in need while at university and subsequently either continue to volunteer or better still devote their career to assisting the most vulnerable rather than the most wealthy in society. staff can help run or support law clinics and/or sensitise students through their teaching to issues of unmet legal need, and wider legal social and injustice. this last point shows that law clinics can play both a direct and indirect role in promoting justice: directly by providing legal services to those most in need; and indirectly by developing in students a commitment to do so after graduation or at least sustaining a pre-existing commitment to do so (see nicolson 2006, 2010). moreover, if both these roles are going to be maximised, then it follows that clinics should seek to maximise both the number of students involved and the length of their involvement. more students mean more cases or other forms of community service (law reform work, street law, etc). and the longer the student involvement, the greater their exposure to both the problems of justice and the satisfaction of helping others, and hence, according to educational theory (nicolson 2006), the greater the possibility of them developing the habit of helping others. obviously, these two desiderata are in conflict all things being equal, increasing the number of students involved means that the involvement of each students will be reduced, and vice versa. at uslc we balance these two considerations by providing places for about a third of all undergraduates to serve in the clinic for the duration of their studies (anything from three to five years for full-time students). thus, we currently have 280 clinic students (though only 225 are trained to engage in face to face client work as opposed to online advice, law reform, public legal education and investigating alleged miscarriages of justice). however, after the uslc’s launch in 2003, i gradually came to realise that its entirely extra-curricular nature meant that it was not fully realising the potential of its “justice mission”. this was not so less so as regards the more direct means of enhancing justice through providing legal services to those most in need. in order to maintain the quality and not just the quantity of service to the community, students undertake intensive induction training, have all letters, pleadings and other documents and case strategies checked and are encouraged to attend regular optional training sessions on substantive areas of law and advanced skills like body language interpretation and dealing with vulnerable clients. and it seems to work – over the last few years over 90% of cases going beyond mere advice led to client goals being fully or partly met. on the other hand, reference to the cle literature (eg aiken 2000-1;wizner & aiken, 2004; adcock 2013) suggested to me that without a teaching programme, the uslc was not meeting its potential as regards the indirect means of enhancing justice through educating students to be “justice ready” (cf aiken 2012). according to educational theory, the value of all forms of experiential learning lies, not just in the experience of putting knowledge into practice, but also in the reflection on that activity. as is so well-put in brayne, duncan and grimes, learning from experience “occurs not in the doing but in the reflection and conceptualisation that takes place during and after the event.” (1998, 47). for instance, according to kolb’s well-known learning circle (see eg kolb, 1984), reflection may lead to the adoption of new, or the adaptation of existing, theories about how to handle issues which can then be put into practice when similar situations arise. it helps “build the skills, values and modes of critical thinking required to frame and solve complex problems.” (casey, 2013-14, 320). reflection can be unconscious and subliminal (calmore, 2003-4, 1172). but it is likely to be more profound and long-lasting if time is set aside for the process and reflection is guided by the views of others, especially those experienced in the relevant activity or steeped in the relevant theoretical knowledge (morin and waysdorf, 2013, 606). such guidance can be provided via feedback on written reflection or face to face in supervision meetings or in those attended by colleagues as well as teachers where all provide feedback, ask questions and make suggestions and generally deepen the dialogue (what some call “reflection circles": morin and waysdorf, 2013). conscious reflection is also likely to be taken more seriously if assessed and particularly if this is done for marks (van tartwijk & driessen 2009). clinical legal education and assessment at the university of strathclyde i only discovered the value of experiential learning after establishing a clinical class as a reward to final year clinic students for their voluntary work. it was initially called clinical legal practice, and involved a mixture of classes by practitioners on advanced clinical skills and classes on legal ethics and access to justice, but slowly the skills elements were dropped both because the students took to the other aspects especially legal ethics which they had never encountered and because of the difficulties discussed below with assessing skills through case work. thus case work assessment was dropped in favour of greater emphasis on student reflection in a weekly diary on issues of ethics and justice arising in their cases, clinical experience more generally and in class seminars, and on a reflective essay in which students explore in more depth the issues arising in one of their cases. as a result of the shifted emphasis, the class was renamed ethics and justice. however, the experience of seeing students integrate reflection and background reading on issues of ethics and justice persuaded me about the value of experiential learning as the best means of teaching ethics and seeing its potential to strengthen the indirect impact of clinics on social justice through fostering and sustaining “warriors for justice” (nicolson, 2015). by not formalising what students learn from their case experience, i realised i was wasting valuable educational opportunities as regards ethics and justice teaching. no doubt the same applies to exploiting clinic work to develop skills and teach substantive law. however, i am not convinced that the academic stage of legal training should be required to produce practice-ready lawyers. otherwise, there would have to be the resources to provide all students, many of whom will not go on to practice, with enough clinical and reflective opportunities to fully develop their skills. by contrast, not least because this task is not currently being carried out at the professional stage of legal training, i do think that it is the job of law schools to strive to make students justice-ready or, to put it in the language of liberal legal education, to help develop good citizens (eg brownsword 1999). if successful, this will mean that those who do enter practice, will do so willing and able to contribute to redressing social injustice and practice in an ethically informed way. as stated earlier, i do not favour producing highly skilled and knowledgeable lawyers if those attributes are reserved for those who can afford to pay and used to cause even more social injustice on behalf of the powerful in society. but as also stated earlier, i was also initially concerned that providing students with credit for their clinic work would lead to them prioritising education and assessment marks over social justice and clients thus undermining the contrary message conveyed by the uslc’s goals of directly and indirectly enhancing social justice. however, after being in operation for a number of years i was convinced that the uslc’s strong social justice orientation was being passed on from one generation of students to the next through an appointments procedure, supervision, mentoring and informal socialisation. as long as this ethos remained and participation was largely extra-curricular, i became confident it would be possible to maximise the potential for students to learn about ethics and justice from their raw clinic experience without undermining the clinic’s message about social justice. consequently, from october 2011, strathclyde law students have had the option of enrolling on a clinical llb (cllb), albeit only if they first gain admission to the uslc through an interview which assesses their commitment to social justice. the cllb integrates and assesses students’ clinical training, case work and reflection on their clinical and educational experiences. it is not a totally separate degree to the standard strathclyde llb. instead, students take all the standard llb classes except for law and society which is replaced by legal theory (thus negating any suggestion that cle is anti-intellectual). however, at least a third of the classes taken by cllb students must have a clinical element. four of these are compulsory: · legal methods (clinical) adds training basic legal skills (client interviewing, letter writing, case and data management) as well as an introduction to legal ethics to the standard legal methods class; · voluntary obligations (clinical) augments the standard contract class with training in the skills of advanced legal research, negotiation, advocacy and pleadings drafting in the second semester of the first year; · ethics and justice, taken in the first semester of the final year, involves the renamed clinical legal practice class; · the new clinical legal practice does not involve any teaching but gives students marks for case performance and for reflective diaries which they must write in the second and third years of the cllb. in addition students must take at least two2 “clinically available classes”. these are standard compulsory or optional classes whose subject areas are likely to arise in clinical cases. where a student has a case relevant to one of the clinically available classes they can opt to replace a portion of the assessment for the standard class with an essay in which they explore the legal, practical, factual, ethical, justice and/or political issues arising in one or more of their past or current clinical cases. thus, apart from the various forms of assessment in the standard llb, the cllb has a variety of forms of assessment, both in terms of what is being assessed and the manner in which it is assessed. the rest of this section will provide a critical evaluation of each in turn. 1. general skills – case performance one obvious, but as i shall argue, problematic form of assessment involves performance in case work. thus, 50% of the mark for the compulsory clinical legal practice course is devoted to assessment of the student’s performance in five of their cases. where, as is usually the case, students have conducted more than five, they 2 or one if they are doing the two-year accelerated version taken by non-law graduates. to avoid undue complexity in the following discussion, i will henceforth only refer to the standard three year cllb. in addition most of those taking the latter degree will go onto an honours year where they take at least another two clinical classes and/or write a dissertation on a clinical topic. will choose which to have assessed. given that the cllb is aimed at integrating clinical training and experiential learning into the law degree, it seems to make sense to assess students on what they have learnt from their training, supervision and reflection on how to conduct cases. assessing casework, however, raises three problems in my view. the first is that it is difficult to specify the standard against which students are being marked (see appendix a for an attempt to do so). this might arguably be a general problem of putting conventionally accepted academic standards into marking schemes in order to guide their behaviour of students. however, having marked for years with other colleagues at a number of institutions, being subjected to externals and having acted as an external at different institutions, i am fairly confident about the consistence of my judgment of academic work (though only about the consistency with other markers when we have jointly marked over a number of years). consequently, i now rarely refer to marking schemes and am pretty sure that such references functions more at the level of justification rather than discovery of the “correct” mark. but marking according to conventions within a particular marking community is infinitely more difficult, if not impossible, in regard to assessing case performance for three reasons: · there are usually few clinicians involved in marking within any one institution and so there is less chance of a strong sense of "we all do it this way". · there is also relatively speaking a much smaller clinical educators community in the uk and certainly in scotland, as compared with the us, australia and south africa, for instance. · it is difficult if not impossible to get appropriate moderation or even feedback from other supervisors and from externals on the marks allocated to a particular case if as is certainly the case with externals, they have not been involved in observation of the case performance. colleagues and externals can of course review the written file, but not any other aspects of case performance. this highlights two other main problems with assessing case performance. the first is that, unless the supervisor attends every single client interview, negotiation and court appearance (which in my view would lead to an unwelcome reduction in the quantity of clients served), they cannot assess overall case performance except in terms of how successful the outcome was. even then, there may be no way of knowing whether this was due to luck or the student’s ability when the case was successful and whether the student still performed well despite a disappointing result. given this difficulty, students who keep an impeccable file and produce impressive documents may get a high mark despite an otherwise poor performance, and vice versa. this obviously leads to arbitrariness in marking – a problem exacerbated by the huge role fate plays in terms of what sort of cases are allocated to students. thus, cases allocated to students range from the very simple, when clients need only to be interviewed and given advice on simple matters to month-long disputes ending in litigation and even an appeal. how does one compare the perfect performance of a few simple tasks with the competent, but inevitably not entirely perfect, performance in a case involving complex law, procedure and facts, well-resourced professionally legally represented opponents prepared to pull every trick in the book to win, and a possibly fractious court? to some extent one can apply a tariff approach as in sports like diving where simple dives performed perfectly do not receive full marks but very difficult dives can still get high marks despite not being perfect. but it seems unfair not to give full marks to students who do a perfect job given that they have no choice in what cases they receive. one could of course abandon marking case performance and merely ascribe a satisfactory/unsatisfactory judgment to performance. but this would be unfair under current cllb rules because one unsatisfactory decision would mean that the student fails clinical legal practice and cannot graduate until they can gain another case and perform to a satisfactory basis. it also seems unfair not to reward students who have put in an enormous effort to assist clients in a caring and competent fashion. accordngly, students tend to get very high marks for case performance, leading to high overall marks for clinical legal practice and eyebrows being raised at examination boards! admittedly, the significance of these problems is reduced by the fact that the mark for case performance is limited to only 1/36th of their assessment for the cllb (they take six classes each year) – or even 1/48th if they go on to the honours year (where another six classes are taken). moreover, the extent of the problems of idiosyncratic case performance and the role of fate in obtaining cases, as well as the lesser problem of variance in marking standards between different markers,3 is reduced by the fact that students are assessed on their performance in five rather than one or two cases and hence disparities tend to even themselves out to some extent. 2. specific skills – simulated exercises nevertheless, i remain very ambivalent about marking case performance in live cases. i feel far more comfortable about marking performance in simulated exercises, even though live cases are likely to provide deeper (albeit less controlled) learning experiences than simulated ones. i am also persuaded, at least in theory, by van der vleuten and schuwirth’s argument that it is better to assess overall performance involving a variety of skills than the separate assessment of discrete skills (2005, 31213). in practice, however, it seems easier and fairer to assess carefully controlled simulated exercises involving one or only a few skills. and this is what we do in the initial two classes in the cllb. in legal methods (clinical) a statement of facts based on a simulated interview are each given a mark out of five, with a further five marks for reflection on the client interview (rather than for performance of the interview itself)4 and fifteen marks for a report on ethical issues arising out of the interview (the remaining 75% of the assessment comprising an assignment testing standard legal methods issues). in 3 cf govaerts, van der vleuten, & schuwirth, 2002, 139-40 whose study suggests that students vary in case performance far more than markers vary in assessment performance and hence that being assessed on multiple cases reduces problems with both. 4 this is because students interview in pairs but such pairs often involve a mix of cllb and noncllb students, meaning that they cannot be marked as a pair or individually. plans are however being made to get round this problem and to assess performance rather than reflection, given that reflection on an interview tends to be rather formulaic and unrevealing. voluntary obligations (clinical), the 50% of class assessment devoted to clinical training comprise of: an in-depth research exercise on the sort of contractual issues that arise in clinic cases (25%); the drafting of pleadings based on the research (10%); and participation in either a simulated negotiation or advocacy exercise based on the same case (15%). compared to the assessment of general case performance, we are able to give quite specific guidance on what is expected, can ensure fairness between students because of the simulated nature of the exercise and can ensure moderation by colleagues and externals as all exercises are either written or video-recorded. the only slight concern is that, once again, students tend to do better in such practical exercises, though this is offset by the fact that the clinical assessments replace aspects of the standard classes in which students also tend to do well. 3. learning about law reflective essays for their clinically available classes, students write an essay on a topic based on a relevant ongoing or past case which they set in consultation with me as the cllb director. here, assessment guidelines are broad5 because the idea is that the students take an issue or issues which they find interesting, challenging, surprising and/or on which they have already done some detailed research and would like to do more. in 5 for instance, the legal process (clinical) handbook states: “the aim of this assessment is to test student’s ability to evaluate aspects of the legal process raised by a case they are undertaking or have completed in the law clinic. they are expected to reflect on what the case illustrates and says about relevant aspects of legal processes, whether it shows these processes in a good or bad light, whether and in what way matters could be improved, and what implications there are for any suggested reforms. the student can discuss any issue or issues relevant to the legal process (clinical) syllabus, as long as they first get permission of the class co-ordinator. once you have permission to write an essay reflecting on a law clinic case, you should research it using the reading referred to in the reading materials accompanying the class and any suggestions from the class co-ordinator or class lecturers.” subjects like legal theory or legal process, the topics tend to be quite broad and not unlike an essay set by an academic except that they are sparked by an actual case. for instance students might explore in legal theory what they have learnt from an employment case or cases about the alleged neutrality of law and in legal process whether mediation is always an appropriate means of dispute resolution. topics in substantive law subjects can also be broad, such as the common topic of evaluating the effectiveness of a new rent deposit scheme, but very often they are more narrow, reflecting the actual substantive law question the student had to research in the case. for instance, a recent essay in property law explored “the extent to which consent of a co-owner is a necessary requirement in the area of law concerning repairs and alterations?”, whereas in employment law a student asked “is the band of reasonable responses still effective as the determining test in unfair dismissal cases? if not, is there a better alternative?” in this way, these essays reflect to a far greater extent the sort of enquiries lawyers have to make in practice as compared to the often artificial and unrealistic tasks involved in traditional problem questions in law. but apart from the possibility that, as befits the more instrumental nature of research in actual cases, such essays are narrower than the standard essay questions in the class, there are only two real differences between reflective and standard essays. one is that students might already have commenced research on the topic in their clinical reflective essay and hence will benefit from doing additional deeper research. the second is that they have chosen the topic out of interest or in order to assist the client and thus tend to put more effort into the essay. both of these give cllb students an advantage over other students, but this needs to be offset against the fact that they often have very large burdens imposed on them by their case work. moreover, unlike other students on the class, they have to devote time to thinking of an appropriate essay topic and in most cases engaging in a number of exchanges with myself to ensure an appropriate essay topic. 4. learning about ethics and justice reflective essays similar considerations apply to the very similar reflective essays which form 50% of the assessment in ethics and justice where students are simply instructed to discuss “the relevant various justice and/or ethical aspects of a case undertaken by the student”. however, before the student commences the essay, they will have first presented the case at one of the weekly one hour “case surgeries” that are held alongside more formal two hour seminars. in such surgeries students present a case that they think raises issues of ethics and/or justice and the discussion ensues on how the case might be resolved, what further issues are raised and what reading might be helpful in discussing the case. a topic is then set at the surgery or subsequently once the student has had time to conduct more research and reflection. but apart from this, reflective essays on ethics like those on substantive law topics are not that different to standard essays or, more accurately, the dissertations which students have to write in their honours year. indeed, this gives cllb students a head start in the art of choosing a workable research question for this dissertation. 5. learning about law, life and legal practice – reflective diaries what is even more novel for students and what they most struggle to get to grips with is writing a reflective diary – often called a journal or even turned into the horrible gerund “journaling”. diary writing starts in the second year of the cllb after initial training is over. students must produce a (roughly6 500 word) entry every fortnight in each semester (except in the semester when they take ethics and justice when entries are produced weekly). half way through each semester, they are encouraged to hand in their entries for the first six weeks in order to obtain feedback. i read them and respond with the aim of getting them to think more deeply, raise related issues or suggest relevant reading. the students can then respond to these comments (in roughly 200 words) ensuring both a limited dialogue between us and that students take reflection more seriously knowing that it is being read and responded to (cf van tartwijk, & driessen 2009). for all semesters other than those in which they take ethics and justice, the issues on which they can reflect are very broad. thus the handbook states: relevant experiences on which you can reflect will include, most obviously, any case work, but also clinic training, attendance at an iac [initial advice clinic],7 and attendance at surgeries. as long as it somehow illuminates one of your various clinic activities, you may even reflect on what you have learnt in the standard llb from, for example, classes in legal process on access to justice, classes in legal theory on substantive justice or ethics, and any class in which you learn law relevant and helpful to the conducting of one of your cases. 6 this used to be a maximum, but following feedback a maximum for each entry (and response to entries – see below) was replaced with an overall word limit so that students could tailor the depth of discussion to the significance of the issue. 7 these are run by uslc but advice given by pro bono solicitors, usually uslc alumni. for ethics and justice, students are told the diary should cover “the student's activities in handling cases and participation in case surgeries, as well as reflection on the student's performance, what they are learning from the class and from their clinical experience, and how they might improve their performance”. given that reflection is for most students a novel experience, many struggle to know what to write about and how to go about reflection. as morin and waysdorf also found, “meaningful and effective reflecting requires that we teach students the process of reflection.” (2013, 603). to this end, the cllb commences with a session on the theory of clinical legal education which specifically focuses. in addition, fairly detailed guidance on reflection is provided in the cllb handbook (reproduced in full in appendix b, below and repeated in a session just before students commence writing diaries for the first time. in addition to this guidance, students are provided with a number of diaries from previous years which received high marks, are invited to submit a diary entry as a dry run and are given face to face feedback after their first submission. but it is clear that reflection is an art which is learned from practice and with the help of comments on diary entries, marks and general comments at the end of each semester. many students comment on their difficulties they have at the beginning of the process, but equally many also comment on how they have come to appreciate the task and have learnt from being required to reflect on their experiences. this was particularly so with those students who took the option of providing an introduction to the diaries pulling together themes and providing a retrospective analysis of their growth. for example, one student provided the following overview of her years doing the cllb: the process of keeping a diary and reflecting on case work has been a very helpful one in monitoring my development and learning. by taking time out to think about what i have done and how i have done it has helped to prepare me for what lies ahead in the legal world. i can see legal problems now as a mix of different issues which may all need some attention or at the very least some consideration as potentially significant factors in whether we will act or how we do act if we decide to. i found that at the beginning of my law clinic experience i was concerned about client interactions and making sure that i was representing the client’s best interests, and not acting in a paternalistic manner. as my experience grew in this area, and i began to get involved in cases which required representation, my focus turned to the myriad of issues which present themselves when a court or tribunal hearing looms. first of all is the thorny issue of who out of the co-advisors is going to do the representation. this is left to the co-advisors to resolve, and needs to be dealt with delicately. preparing and representing at the hearing is obviously a highly stressful time, and it tests your strength of character and ability to relate to your co-advisor as well as the client. dealing with clients in these stressful situations is also challenging, and this is where a good relationship with your co-advisor is essential. the importance of investing in establishing those relationships early on cannot be underestimated, and this made a big difference to me when i was faced with the challenge of representation. as i have become more established in the law clinic i find that my reflections have turned to some of the more perplexing aspects of practitioner work: viz. what is substantive justice? and; can it be achieved? i am not convinced that i have found the answers to these questions, but what i have discovered is that there are many different ways of considering these questions, and that each case needs to be considered on its merits. i believe that the merits of a case go beyond what the black letter law says and extend to a consideration of the fairness of the situation, and the ease with which the client can advocate on their own behalf and represent themselves in a formal setting. i have discovered tensions around this issue given the finite resources that we have at our disposal. this means that tough decisions need to be made about who we do and do not represent. in summary, the reflective process has caused me to consider some of the wider issues of client representation. it has opened my eyes to potential problem areas and constraining factors which could jeopardise a client’s case. time will tell, but i believe this has had a major influence on my development as a learning lawyer. from this it can be seen the wide range of issues on which one student reflected – teamwork, ethics, justice (legal, substantive and access). to these can be added myriad others – from more practical issues of how to effectively represent clients, the values of clinical legal education, career choice to highly personal experiences such as being the victim of a sexual assault or witnessing a murder. the opportunity for reflection thus prompts students to prepare for their future careers and for the rest of their personal life. the above extract from a student’s introduction to her diaries also shows the value of students not just reflecting on experiences as they occur, but also on looking back to see how their views and behaviour have changed and how they now see themselves as persons and potential professionals. indeed, it is now compulsory rather than merely optional to provide an introduction to each semester of diaries in which they take a more holistic view of their development. the other insight i have gained about reflection from my students’ diaries is the value of the dialogue between myself and the student which results from my commenting on their entries. such academic intervention can: · alert students to potentially problematic ethical and practical issues which they had not noticed or which if they noticed, had regarded as unproblematic; · expose them to new issues through imagining alternative versions of the facts of their cases or by asking whether a possibly immoral or impractical solution which they had not contemplated might ever be justified; · require students to clarify for themselves the exact nature of their stance on particular issues; · refer students to relevant reading to enhance their understanding of issues; · encourage students to adopt new perspectives in dealing with issues, think more deeply and in a more sophisticated way about issues they had raised or justify ethical or practical positions they had taken. as an aside it can also be noted that reading the diaries has proved incredibly valuable, not just in aiding student development, but also in terms of running the clinic and cllb. for instance, having repeatedly read about the benefit of having to attend evening advice session staffed by pro bono solicitors, it was decided to make these compulsory for all first year clinic – and not just cllb – students. a final point about the diaries is that, while marking them was at least initially unfamiliar, it gave rise to fewer problems than marking case performance. although there is no core of knowledge to be conveyed as in more standard forms of academic work, like traditional academic assessments one is looking for insights and the use of existing learning and additional research. consequently, although it has taken a while to put into words, i found it relatively easily to get a feel for what is poor, competent, good, etc work and have subsequently, with the help of external examiners and others who assess diaries, developed the marking scheme set out in appendix b. ensuring reliability of assessment would be helped enormously by having clinical staff co-marking with me (currently i mark all diaries). this is i think is one of the most effective means of ensuring reproducibility of results. in my experience, when markers discuss with and justify to each other the marks they give to the same assessment, they relatively quickly come to a fairly uniform standard. however, short of this, this assessment method is about as reliable as one can get in the context of any marking which involves making subjective evaluations. moreover, it should be clear that, whatever the problems with reliability, assessment on the cllb must score high in terms of validity, given that, as espoused by van der vleuten and schuwirth (2005, 312-3) clinical elements assessed are largely based on real-life activities or, failing that, simulated exercises based on real-life activities. in addition, when it comes to case performance we are interested not in discrete skills but in a student’s ability to competently perform all those skills in which practitioners should be competent – both technical legal skills as well as softer skills such as the display of empathy, care and consideration for clients. and then when it comes to such reflection, we are looking for student insights into an even wider sense of competency which extends beyond both types of skills to an awareness of the role of ethic and justice in the practice of law and to the development of the individual student’s sense of professional identity. conclusion in this article, i have argued that legal competence should be about values as well as skills, and about ethics as well as knowledge. similarly, cle should aim to assist students become effective and ethical practitioners, and to develop their own style of practice and own sense of professional morality – in short their own professional identity. while various individual exercises and examinations can help them in this regard and certainly with the acquisition of knowledge, it is reflective diaries which are most important in this regard. perhaps most importantly, the diaries encourage students to develop the habit of being a reflective practitioner – in other words lawyers who constantly reflect on what they are doing both after and also, later as they become more experienced, during behaviour (see eg schön 1983, 1995). this process is enhanced by the fact that reflection on the cllb occurs over a period of years rather than months. this opens up the possibility of students returning to issues they had previously encountered with similar but often subtly different experiences. this in turn ensures repeated circles of kolb’s learning circle and this may lead to the development of an increasingly nuanced “theory” of how to act in the future as subtle differences in the context in which an issue arises encourages adaptions to the initial theory of how to respond. i see this regularly in relation to ethical issues relating to the lawyer-client relationship. indeed one student’s experience in trying to negotiate an appropriate course between paternalism, which she first unwittingly displayed before being exposed to ethical theory, and acting in the client’s best interests, which she completely ignored in her next case due to the desire to prioritise client autonomy, led her to write, part-time while working as a lawyer, a dissertation on the subject surely a supreme example of life-long learning! in any event, even if such repeated reflection on the same issue does not occur, the process of regular reflection throughout the law degree is likely to make reflection a 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(2004) teaching and doing: the role of law school clinics in enhancing access to justice, fordham law review, 73, 997-1011. appendix a marking criteria for cases your case should be conducted and your files maintained in accordance with the rules and guidance contained in the law clinic handbook, in particular the practice rules and the law clinic guide. these documents contain a step by step guide on how to handle a case including, for example, the requirements relating to communication with your client, how your paperwork should be managed and what should be recorded on the electronic case management system. the table below gives an indication of the criteria used for marking your files. unsatisfactory competent excellent communication infrequent, lacking in clarity and inappropriate. failure to respond within reasonable time regular, clear and appropriate with reasonable response time frequent, clear and appropriate with quick response time file management poor record of work undertaken with no evidence of research, failure to print e-mails etc., missing papers from file, papers not kept neatly or in proper order, failure to record work on cms, poor communication with coadvisors and/or staff. accurate record of work undertaken with some evidence of research, paper files adequately maintained, cms up to date and accurate and good communication with co-advisors and staff. clear, accurate and up to date record of all work undertaken including research, calls, e-mails etc., all papers filed correctly and neatly, cms up to date and accurate, excellent communication with co-advisors and staff. legal knowledge and skills little or no evidence of relevant research, poor understanding of law with poor analysis of legal position, poor explanation of law to client and little or no awareness of practical and procedural matters, poor advocacy and/or negotiating skills evidence of relevant research, good understanding of law and good analysis of facts and application of relevant law, good explanation of law to client and good awareness of practical and procedural matters, good advocacy/negotiation skills evidence of extensive and thorough relevant research, excellent and accurate analysis of facts and application of relevant law, very clear explanation of law to client and excellent awareness of practical and procedural matters, excellent advocacy/negotiation skills. drafting poor drafting of letters, summons, et1’s and other legal documents lacking in clarity, containing irrelevant material and factual inaccuracies clear, concise, accurate and relevant drafting of letters, summons, et1’s and other legal documents very clear, concise, relevant and accurate drafting of letters, summons, et1’s and other legal documents relationship with client uncaring, insensitive, and/or unprofessional professional and competent service provided professional and competent service provided, but also caring and sensitive to their needs, and prepared to go the “extra mile” ethical awareness unaware of any relevant ethical problems aware of most ethical problems but simplistic solution to the problems provided aware of all relevant ethical problems and sophisticated and nuanced solutions to the problems provided reflection on performance poor awareness or insight into difficulties presented in case, personal performance or any ethical issues arising good awareness of difficulties presented in case, personal performance, any ethical issues arising. excellent awareness of difficulties presented in case, personal performance, any ethical issues arising. note: 1. the above categories of “unsatisfactory”, “competent” and “excellent” broadly translate into a mark of, respectively, less than 40%, between 40-69% and over 70. 2. you will not be marked equally on each of the criteria; some are more important than others, and some, such as ethical awareness, or negotiation or advocacy skills, may be inapplicable. introduction appendix b – guidelines on the reflective diary writing a diary is an exercise in extended reflection on experience. it involves at least three aspects of kolb’s learning cycle: · having a concrete experience, · reflection on that experience · the development of a new, or adjustment of an old, theory (what he calls abstract conceptualisation) moreover, if similar experiences are repeated within relevant period of reflection it might also involve a fourth – active experimentation. this involves the application of a new theory of action, thought, feelings or values to a new experience relevant to the first one. accordingly, a diary entry should involve at least three elements (with active experimentation possibly coming up in a late entry, allowing for further reflection, abstract conceptualisation, etc). what? here you want a clear, focused and engaging description of experience or at most two experiences. relevant experiences on which you can reflect will include, most obviously, any case work, but also clinic training, attendance at an iac, and attendance at surgeries. as long as it somehow illuminates one of your various clinic activities, you may even reflect on what you have learnt in the standard llb from, for example, classes in legal process on access to justice, classes in legal theory on substantive justice or ethics, and any class in which you learn law relevant and helpful to the conducting of one of your cases. if you are unsure whether a particular experience is worthy of reflection for the purpose of writing a diary entry, you should contact the cllb director. choose an experience/experiences which most engage you and/or are which lend themselves to deep reflection and theory development: something that was, for example, shocking, pleasing, embarrassing, disappointing, unexpected, etc and/or which made your change your views, values, ways of doing things etc; something that lead to self-appraisal, some form of change and/or personal growth (in emotions, understanding, values, experience, etc). you are strongly advised to discuss one or two issues in great detail rather than skate over a few in superficial detail. so what? this involves deep reflection on what the experience(s) meant in terms of ideas, emotions, skills and capacities, and/or values. ask yourself what did the experience mean to you, what did you learn, how did you feel before, during and after the experience, what went well or less well than you expected or could be expected. in short, ask yourself how has the experience changed me, my ideas, my values, my future plans, etc? what did you think/feel before and how do you think/feel now; how does it compare with what you already know from previous experiences, what others have told and what you learnt through study, how did such learning help you understand (or not understand) your experience? here you can reflect on the implications for further study, for your clinic experience, future career, etc. in other words, what does the experience(s) tell you about legal education, legal practice, justice, ethics, society, other people, etc. now what? what does your reflection means for the future: · what will you do, think or feel differently? · how can you go about making further improvements or changes: · what literature can you read, course go on, what person can you speak to – or indeed what do these already consulted sources tell about what you need to do? general ensure that the dairy entries are well-written, well-punctuated, grammatical, clearly structured, free of typos, etc. you should strive for the same levels of written communication as is required in essays, clinic letters, pleadings, etc. ensure that diaries are submitted for comments, that you respond to comments and that invitations to read further or otherwise gain information are taken up. ensure consistency in quality and quantity of reflection. favourable features of diaries discussion of experiences that lends itself to deep reflection on relevant topics honest, open and non-defensive self-appraisal curiosity awareness of and thinking through perspectives other than one’s own signs of personal growth – change in thoughts, feelings and values as well as knowledge symbiosis between experience, theory and learning use of what taught and what read in reflection strong sense of how experiences lead to new outlook on law, society, other people, being a lawyer, and being a human being unfavourable features badly written, e.g. unclear, ungrammatical, stream of consciousness writing, repetitive and waffly bland and descriptive over or well-under the word limit no submission for comments no response or very thin response to comments marking the diaries in marking diaries, the following matrix will be used: unsatisfactory satisfactory competent good excellent length very brief, no response to comments mostly uses full word length in initial entries and provides some responses mostly uses full word length in initial entries and responses use full length, full response to all comments use full length, full response to all comments style very bland, highly descriptive, opaque mostly bland description, not very clear clear but mixture of bland description + more engaging writing clear and mostly engaging crystal clear and highly engaging presentation ungrammatica l, littered with spelling mistakes, typos a substantial number of typos, and grammatical, spelling errors a few typos, and grammatical, spelling errors no grammatical, spelling errors, and only a few typos free of all errors structure stream of consciousness, repetitive some structure but mostly stream of consciousness and some repetition largely wellstructured , with some lapses wellstructured , albeit occasionally a bit “flabby” clear narrative structure, concise and succinct analysis description only, no attempt to learn from experience more description than analysis mixture of description & analysis good balance between analysis & description; some use of learning from other sources (eg reading, other classes) deep analysis and very insightful; excellent use of learning from other sources reflection on personal development, description only mostly descriptive one or two insights into personal development, but largely rigid and defensive attitude to change and no self-disclosure fair amount of reflection on personal development, with a few good insights and some openness to self-disclosure and change some good insights into personal development and openness to change extremely insightful about personal development, open to change reflection on description mostly fair amount of some good extremely law, justice, ethics, professionalism and future career only, no reflection descriptive but one or two insights into law, justice etc reflection on law, justice etc insights into law, justice etc insightful about law, justice etc note: · the above categories of unsatisfactory, satisfactory, etc roughly correspond to a fail, 3rd, 2.2, 2.1 and a first. · the various elements are not equally weighted. for instance, elements relating to substance (analysis and reflection) are far more important than those relating to presentation. thus really insightful entries with a few typos and even grammatical and spelling errors may still gain a first class mark; on the other hand, even well structured, perfectly written and lengthy entries which are bland and purely descriptive will struggle to fall into more than the “satisfactory” category, unless there is at least some reflection. further reading casey, t. (2013-4) reflective practice in legal education: the stages of reflection, clinical law review, 20, 317-354. gibbs, learning by doing: a guide to teaching and learning (1998) (electronic access) maughan and webb, lawyering skills and the legal process (2005), ch. 2 esp, pp. 44-46 311 clinical pathways to ethically substantive autonomy philip drake, professor stuart toddington* there is no shortage of support for the idea that ethics should be incorporated into the academic and professional curriculum� there is a difference, however, between, on the one hand, teaching professionals about ethics, and, on the other, demanding that they give ethical expression to the range of professional skills they are expected to apply daily in their work� if this expression is not to be perfunctory, ethical judgement must be genuinely integrated into the professional skill set� the mark of integration in this regard is the capacity for autonomous judgement� ethical autonomy cannot be achieved by a mechanical, rule-bound and circumstance-specific checklist of ethical do’s and don’ts, and it is only partially achieved by a move from mechanistic rules to ‘outcome based’ processes�1 rather, professional ethical autonomy presupposes not only a formal understanding of the requirements of an ethical code of conduct, but a genuine engagement with the substantive values and techniques that enable practitioners to interpret and apply principles confidently over a range of circumstances� it is not then, that ethical skill is not valued by the legal profession or legal education, or that the shortfall of ethical skill goes unacknowledged, it is rather that the language of professional ethics struggles to break free from the cautious circularity that is the mark of its formal expression� to require a professional to ‘act in their client’s interests’, or ‘act in accordance with the expectations of the profession’ or act ‘fairly and effectively’ are formal, infinitely ambiguous and entirely safe suggestions; to offer a substantive account of what, specifically, those interests might be, or what expectations we should have, are rather more contentious� fears of dogma and a narrowing of discretion do, of course, accompany the idea of a search for ethical * philip drake, senior lecturer, law school, univeristy of huddersfield� professor toddington, law school, univeristy of huddersfield� 1 the new sra handbook emphasises a move to ‘outcomes focused regulation’� in this document the sra say: “responsibility for meeting the requirements in the handbook, and for operating effective systems and processes, lies with you� in the sra code of conduct (the code) in particular, we have stripped out a lot of the detail of the previous code to empower you to implement the right systems and controls for your clients and type of practice� you will have more flexibility in how you achieve the right outcomes for your clients, which will require greater judgement on your part�” this reference to greater judgement [on the part of the practising lawyer] is clearly an acknowledgement that autonomy is now necessary in ethical skill application� this is to be welcomed, or point is simply that no amount of contingent examples of ethical rule application can impart the attribute of autonomy to a learner� (see s�3�2) http://www�sra�org�uk/solicitors/freedom-in-practice/ofr/ofr-quick-guide�page 312 international journal of clinical legal education issue 19 substance, and caution is to be expected in response to it� notwithstanding these anxieties, there would appear to be no coherent alternative to the aspiration to substantive autonomy, and this must remain the goal of teaching legal ethics� in light of this, the problem facing educationalists is then perhaps expressed more diplomatically in terms of how ethical skill might be substantively developed, imparted, and integrated into a genuinely comprehensive conception of professional skill� clinical education can go a long way to solving this problem: exposure to the practical tasks of lawyering is the surest and best way of raising consciousness in this regard: ‘hands-on’ is good and consciousness-raising is a step in the direction of autonomy, but raw experience and elevated awareness is not enough� we know that our most influential theories of learning tells us that it is in the process of reflection upon problem solving that the practitioner begins to take autonomous control of skill development�2 in the view of the author, reflection, requires content and direction, and in this paper, with the aid of three models of skill integration inspired by nigel duncan’s detailed analysis and video reconstruction of the ethical and technical skill deficiencies brought to light by r v griffiths,3 we attempt to specify what might be understood in this regard: reflective content refers to the discrete interests and values that compete to produce tension in what we will refer to the ‘matrix’ of concerns that feature in all forms of dispute resolution; reflective direction points to an engagement with the resources and techniques that can empower critical and autonomous judgment� in the context of a clinical process broadly structured by the insights of wenger and by rest’s model of ethical skill,4 guided reflection so specified thus serves as an interface between on the one hand, indeterminate ethical form, and, on the other, the substantive ethical wisdom to be found in the repository of values that underpin the very idea of the legal enterprise� the matrix of technical and ethical skill: three models of integration when we introduce the idea of ethical behaviour into the concept of professional skill we face a logical problem of greater complexity than might first be imagined� skill-sets can be compiled and evaluated simply as linear sets of practical means in relation to a given end (task or enterprise)� if engineering, for example, a range of basic and discrete craft skills might be specified and enumerated as a series: measuring, cutting, milling, filing, welding and so on; the set might be enlarged as other basic skills, or other more advanced skills are added on to the linear series� here the idea of a linear series of skills will be contrasted with a systematic or organically integrated set of skills� the linear analogy is probably an oversimplification even in basic engineering – it is probably true to say that an integrated set of basic skills in combination is minimally required to perform any engineering task, and so the distinction we seek to establish is perhaps a matter of degree� but the problem about ‘adding on’ or rather, ‘adding in’ ethical skills to an accepted linear set of professional skills or competences, is that ethical skill in the form of autonomous moral judgment does not merely enlarge the set of skills and thus increase the range of tasks that might be undertaken� rather, the 2 see david a� kolb, experiential learning: experience as the source of learning and development� (englewood cliffs, n�j, london : prentice-hall) 1984 3 see r v griffiths [2006] all er (d) 19� see also nigel duncan “preparing for the challenge of a corrupt environment” (elfa-afde�eu/app/download/5788681553/n�duncan�pdf)� see video at www�teachinglegalethics�org under ‘resource library’ ‘teaching materials’, then scroll down to ‘nigel duncan’� 4 see fn� 18 infra 313 clinical pathways to ethically substantive autonomy ethical dimensional of skill application radically and qualitatively changes not only the nature of skill application, but the criteria by which we might judge the successful (competent and skilful) completion of the task in hand� in fact, adding in ethical autonomy to the lawyers skill set might profoundly affect the understanding of the goals of the entire legal enterprise� that is to say, we cannot conceive of skill acquisition for lawyers in linear terms, but rather must approach the issue of skills in a holistic way: ethical judgement cannot be ‘added in’ or ‘bolted on’ to a skill-set it must be suitably integrated� relieving the pressure of this abstraction we offer three familiar scenarios that highlight certain ethical constants (judgments about interests and values) that constitute a matrix of concerns common to all lawyer/client interactions� there are five such: (a) the interest of the client, (b), the provisions of relevant law – statute, common law principle practice guidelines, (c) the requirements of the professional ethical code, (d), the orthodoxly accepted set of clerical, technical and administrative skills expected of practising lawyers, (e), the underlying social or moral purpose of the law� the three scenarios present these concerns in a way that shows that our understanding of what is to count as ‘skilful execution’ and ‘successful outcome’ varies in relation to our conception of what constitutes a suitably professional model of skill integration and application�5 the models are drawn from reality, but it is their hypothetical or ‘ideal-typical’ validity that is important in what follows� the first model (see the video reconstruction of stages 1, 2 and 3 of r v griffiths)6 provides a convenient illustration of what we have called the ‘the automatically integrated’ model� (i) ‘automatically’ integrated model what we refer to as an ‘automatically integrated’ model occurs where prima facie it appears that the client interest, the range of orthodox technical skills, and the quality of ethical judgement required to tie their application together are all automatically entwined� a good example of this is provided by the role play corrective to r v griffiths constructed by nigel duncan (see video at www�teachinglegalethics�org)� here, an estate agent approaches a solicitor with a view to acting on the purchase of a property appearing on the market at a remarkably low price� the solicitor is aware that the vendors had recently been convicted of drug dealing and money-laundering and immediately perceived a connection between the low selling price of £43,000 (against a market value of approximately £150,000) and the attempt to dispose of assets prior to potential confiscation under the proceeds of crime act 2002�7 despite what actually occurred,8 the solicitor’s statutory duty in this situation could not be clearer: it is to report any such suspicion� similarly, it seems a straightforward matter for the solicitor to point out to the prospective purchaser that it simply would not be in their interest to acquire criminal property in this regard� it would be inevitably confiscated and very possibly the discrepancy between the selling price and the actual market value might be recovered from the client� if this course of action is followed, the happy coincidence of (a) the interests of the client, (b) the provisions of the statute, (c) the maxims of the professional code 5 by’skill integration’ we are trying to convey the message that julia black expresses such that ‘ethics is what raises competence to professionalism’� julia black “legal education and training and its interaction with regulation”� (paper to the letr symposium, manchester, july 2012 (forthcoming )� 6 r v griffiths [2006] ewca crim 2155,� see video at www�teachinglegalethics�org under ‘resource library’ ‘teaching materials’ then scroll down to ‘nigel duncan’� see fn 3 supra 7 see: proceeds of crime act 2002, s�330 (1) ‘failing to make a required disclosure’� 8 see nigel duncan “preparing for the challenge of a corrupt environment” (op�cit� fn 3 ) 314 international journal of clinical legal education issue 19 (d) the technical and administrative competence skills of the lawyer, and (e) the underlying purpose of the legislation, come together to produce an automatically balanced and cohesive solution to the situation� it would require (as it did in the actual events leading to the prosecution of the solicitor and the client) a determined effort not to act skilfully and diligently in serving cohesively interests (a) – (e)� thus r v griffiths provides an invaluable general model which, when analysed, serves as an interface to a more focused level of reflection: the student or future practitioner takes the first step to ethical autonomy when he or she becomes aware of the matrix of concerns that lie between (a) – (e)� guided reflection by the tutor can bring these concerns systematically to the fore� this contributes not only to elevated ethical awareness, but allows the student or practitioner to push beyond the formal identification of the problem of skill integration towards the kind of knowledge and techniques required to advance substantive solutions to it� models two and three below present this ‘matrix of concerns’ in more problematic permutation� (ii) ‘problematically’ integrated model r v griffiths provided a convenient illustration of an integrated solution and a valuable model to aid our analysis of a problem, but most lawyer/client interactions involve ‘problematically integrated’ situations: a good example of this kind of interaction occurs in cases where legal advice and skilful manipulation of financial arrangements is required to effect, say, a tax burden reduction� here, ‘the client interest’ (‘easing’ the tax burden) and the technical skills of the tax lawyer or accountant might appear to conflict with the apparent clarity of the ethically redistributive and progressive intentions of the statute� but the economic and psychological models that form the rationale behind the legislative intention are highly contentious�9 in addition, what might emerge as an expression of the client interest is ethically and philosophically uncertain ( for example, the client might genuinely be appalled by the leniency of the law in this regard and insist on paying more tax than is legally required) � here, then the integration of the matrix concerns (a) – (e) is disrupted and made problematic� (iii) unintegrated model a third model (drawn from reality, but which could plausibly be mooted hypothetically) is a situation where the ‘client interest’ and what counts as the ‘technical skill’ of the lawyer are entirely antithetical to the universally understood and accepted moral intentions of the legislation: i�e�, and e�g�, ingeniously defending torture at guantánamo bay for the benefit of providing legal immunity for the u�s� military�10 if we assume, ideal-typically, a civilised legislative intention and a 9 one need only to refer to the immense controversy arising from proponents and critics of supply-side economics and in particular, the issue of the ‘laffer curve’ see, for example, arthur laffer, “the laffer curve: past present and future” ( heritage foundation june 1, 2004) http://www�heritage�org/research/reports/2004/06/the-laffercurve-past-present-and-future 10 see richard b builder & detlev f vagts, “speaking law to power: lawyers and torture” (2004) american society of international law, at pp 689-695� the advice provided was that the president as commander-in-chief has constitutional authority to disregard treaty or statutory prohibitions on the use of torture or other coercive interrogation techniques in conducting the “war on terror”� 315 clinical pathways to ethically substantive autonomy principled ‘client interest’ in a democratic society,11 we have an example of an entirely unintegrated application of technical skill and ethical judgment: the ‘skill’ required of lawyers in this situation is what ethical common sense would regard as the capacity to subvert or nullify the legislative and democratic purpose of the law to serve the immoral and unconstitutional interests of the ‘client’� a fully rational reconstruction of this interaction from an ideal-typically ‘integrated’ perspective could not, we argue, regard this permutation of technical competence, client interest and ethical judgment as unproblematically to be regarded as ‘skilful’�12 an interface between ethical form and ethical substance when we speak about an integrated approach to legal education in this sense of producing a cognitive grasp of the relations between skill, interests, legislative intent, and ethical judgment what we are striving to do is express a maximally comprehensive notion of high professional competence� we noted in our introductory remarks that mechanistic and rule-bound regimes, and a pathologically cautious formalism fall short of our aspirations in this regard� ethical skill can sensibly be understood only as a capacity for autonomous, reflective and accomplished ethical judgement and pure form cannot facilitate this autonomy� endlessly insisting on the need for reflection will not magically produce the level of accomplishment we desire, rather we must openly and honestly specify the content and direction of reflection� by the same token, if the educational task is to develop an understanding of ethical skill, impart it, and ensure that it becomes integrated into a genuinely comprehensive conception of professional skill, we need to do more than compile wish-lists of virtues that we would hope to find evenly distributed throughout the profession� such lists are not to be criticised on the basis of their formalism per se, formal articulation of any problem is not only methodologically unavoidable, in the context of ethical endeavour it is also vitally important to us in creating as potter points out, a universal focus of hope�13 lists of desirable virtues thus provide an initial formal orientation:� rowe et al recently and rightly suggest that our understanding of ‘professionalism’ ought to include a recognition of ‘the broader implications of work’� this involves:14 • considering the interests and values of clients and others • providing high quality services at fair cost • maintaining independence of judgement • embodying honour integrity and fair play • being truthful and candid • exhibiting diligence and punctuality • showing courtesy and respect towards others 11 the question here, of course, is who is the client? the government and the military are archetypal public bodies and in it could be(should be) argued law have no interests antithetical to the public interest� see in particular “the meaning of public authority under the human rights act” seventh report of session 2003–04” in relation to s� 6(3)(b) of the hra 1998� 12 this resonates with julia black’s aphorism� see fn� 4 supra 13 see potter 2005: 24 14 m� rowe et al “professionalism in pre-practice legal education: an insight into the universal nature of professionalism and the developemnt of professional identity�” the law teacher (2012 vol 46 no�2) pp�123-124 316 international journal of clinical legal education issue 19 • complying with rules and expectations of the profession. • managing law practice effectively and efficiently • engaging in professional self-development • nurturing quality of life additionally, ‘ professionals’ should support the aims of the legal profession by: • providing access to justice • upholding the vitality and effectiveness of the legal system • promoting justice fairness and morality • and encouraging diversity. they go on to say that traditional law teaching does little to address these values and attributes which could be said “to be at the core of lawyers’ professional identity”� 15 there is nothing in this list that anyone would wish to disagree with; but we should by now be aware that it is the purity of the form – quite literally, the absence of substance – that lies behind this guarantee of unanimous approval� thus despite the unanimity, as rowe et al, point out, little is done, effectively, to promote these virtues� there is no paradox, however, once we acknowledge that this failure lies in the inability of legal ethical discourse to break free from these formalist constraints� ironically, rowe’s list of virtues provide a good illustration of the problem� this is not to criticise tout court what is listed; the analytical process, as noted, renders this formal first step logically unavoidable in identifying the practical problem and providing a systematic orientation to its separable dimensions� its separable dimensions concern, formally, what might be involved in successfully serving ‘the interests and values of clients’ and ‘others’; of providing ‘high quality’ at a ‘fair cost’; of encouraging ‘independence of judgement’; ‘honour integrity and fair play’; of meeting ‘expectations of the profession’; ‘professional self-development’; ‘quality of life’ and so on� but the enumeration of these dimensions of the problem is not a solution to the problem, nor even an identification of what is required to synthesise a solution to the problem� what is enumerated here is infinitely interpretable: a list of ‘blanks’ that must urgently be ‘filled in’ by substantive information� it seems that these empty formal shells cry out for substantive ethical content, but that we are condemned to proceed in circles, trying to fathom what, concretely, it means to teach lawyers to be ‘fair’, ‘effective’, ‘honourable’ and what is entailed by making them aware of the ‘broader implications of their work’� progress beyond this formalism progress towards professional ethical skill seen as substantive ethical autonomy – demands of us that we engage with what we are now naturally conditioned to avoid: ‘value-judgments’, ‘essentially contested concepts’ or ‘metaphysical’ notions� we live, as alisdair macintyre16 pointed out, in an age of emotivism: a world where philosophical orthodoxy and the post-rational rejection of the orthodoxy both regard the engagement with concrete value as not a proper topic of rational or ‘scientific’ discussion� hope, however, lies in the fact that law, in a profound sense, accepts this moral impasse and attempts to fashion and stabilize justificatory norms as a response to the potential for disagreement inevitably arising from it� given this, there is no reason why we should not find answers to what is skilful, fair, effective and honourable 15 ibid� rowe law teacher p� 123,4 16 alisdair macintyre after virtue: a study in moral theory (2nd� edition, duckworth, london) 1982, pp�6-10� 317 clinical pathways to ethically substantive autonomy within the practice of law by looking at the values that underpin the practical wisdom of the very idea of law� we find this suggestion increasingly in contemporary policy discourse concerned with the future of the profession,17 but we also find it throughout the history of philosophy – from aristotle to aquinas, from kant to hume, and in the under-utilized work of lon l�fuller� it is the idea that specific and particular problems relating to ethical means might be resolved by examining the generality of our ultimate ends� a clinical context for guided reflection our aim has been to articulate the nature of the interface that is required to connect the formal and unspecified acknowledgement of the importance of ethical skill with the substantive values required to bring about an autonomous understanding of them� this interface consists in what we have identified as the context and direction of guided reflection provided by familiarity with the ‘matrix of concerns’ that points practitioners towards underlying values� this guided reflection must operate within a suitable structure of clinical learning, and donald nicholson18 has done much to forge a widespread acceptance of the general model which is shaped by the various insights of wenger, rest, and merrit�19 wenger’s notion of a ‘community of practice’ is perhaps the central structural consideration in modern educational theory� learning occurs through a combination of the influence of the cultural environment and the process of negotiating meaning through participation and reification within this environment� but an ethically pristine ‘community of practice’ does not arise spontaneously and automatically, ready to guide inexorably and productively towards autonomy� it should, of course, as nicholson insists, encourage the kind of developmental virtues outlined in rest’s model: the moral sensitivity, capable judgement, active commitment and courage required by ‘altru-ethical’ professionalism�20 but these virtues must function as much as the ability to resist institutional norms and pressures as to act in conformity with them; this is obvious, for a community can just as easily discourage and repress moral development as it can promote and sustain it� thus autonomous ethical judgement must work from within and upon the community if it is to provide what merrit refers to as a ‘sustaining social contribution to character,21 and this points us to substantive foundations and to the notion of a source of autonomous ethical insight prior to community� to be sure, there is a dialectic at work here, but not a paradox: reflection leads to autonomy, but reflection must be guided by substantive insight� this is best explained by augmenting wenger and modifying rest by introducing what 17 see fn� 23 infra 18 see nicolson, donald j teaching ethics clinically, (teaching ethics clinically without breaking the bank,) (2012)�, www�teachinglegalethics�org and more generally “making lawyers moral : ethical codes and moral character” (legal studies vol �25, no� 4, 2005) pp� 601-626 19 etienne wenger, communities of practice : learning meaning and identity (cambridge university press, cambridge, 1998); rest, j� ‘background: theory and research’� in moral development in the professions j�r�rest & d�narvaez eds �(hillsdale, nj: ehrlbaum� 1994) pp�1-26; maria merrit “virtue ethics and situationist personality psychology” ethical theory and moral practice (3, 365 – 383, 2000) 20 see fn� 16 supra 21 see maria merrit “virtue ethics and situationist personality psychology” ethical theory and moral practice (3, 365 – 383, 2000) 318 international journal of clinical legal education issue 19 vigotsky refers to as the ‘zone of proximal development’�22 this high-tech (sic?) phrase simply denotes that part of the process wherein a learner is empowered to achieve something by being provided with guidance without which they would have been unable to progress� subsequent to this intervention and guidance, the zone of proximal development (proximate to the guidance or guide) becomes the zone of actual development� for our purposes, and in the context of ethical learning, the zone of actual development can be understood as progress towards the skills of ethical autonomy� the ethical dynamism of law when ethical reflection becomes focused it goes in search of substantive principle, when it finds it, substantive principle informs clinical judgement; we begin to move from ethical awareness in the simple practical involvement with a task to the beginnings of an autonomous understanding of the task and what is required for its comprehensive resolution� the formally irreproachable values of ethical professionalism attain a concrete and dynamic importance when through an interface they connect with the repository of the ethically substantive� we have suggested that critical engagement with the ‘matrix of concern’s points us in the direction of a repository of values that expansively underpin the idea of law itself� this is undoubtedly the right direction, as those charged with charting the future of the profession now seem to accept,23 and this sounds a lot like a job for ‘jurisprudence’� one can expect antipathies to the colonization of legal ethics by jurisprudence, and unease about the association between dogma and ethical substance, to intensify at this stage of the discussion� but this should not tempt us to evade or obscure the fact that the discipline of legal ethics appears to acknowledge that progress beyond mechanism and formalism must do more to connect the concept of professionalism with the theoretical relationship between legality and morality� this is the relationship that underpins the respect for individual worth implicit (and explicit) in the commitment to the rule of law� this is not to suggest that legal validity – even from the idealist’s perspective – is to be regarded as synonymous with moral validity, nor is it to assume that professional legal ethics is simply another word for jurisprudence and/or moral philosophy� in fact, to be effective, legal ethics must be circumscribed and differentiated as a discipline from the purely philosophical sciences� however, it must answer the questions it appears centrally to 22 see l� s vygotsky mind in society: the development of higher psychological processes� ( cambridge, ma: harvard university press, 1978�) p�86)� saul mcleod, says: the zone of proximal development ��� has been defined as “the distance between the actual developmental level as determined by independent problem solving and the level of potential development as determined through problem solving under adult guidance, or in collaboration with more capable peers” see s�a� mcleod the zone of proximal development� http://www� simplypsychology�org/zone-of-proximal-development�html 23 in paragraphs 87 -89 of the letr discussion paper 02/2012 at p� 30 we find: “both the aclec report and the more recent economides and rogers report (2009), in their recommendations to bring ethics into the initial or academic stage of training for solicitors, have raised uncertainties about what that implies� are we talking about individual professional ethics, per se, are we addressing the institutional ethical roles of the professions, judges and lawyers as a collectivity, or are we primarily concerned with the ‘system ethics’ and values of law itself? this is reflected in boon’s (2011) definition of legal ethics as��� the study of the relationship between morality and law, the values underpinning the legal system, and the regulation of the legal services market, including the institutions, professional roles and ethics of the judiciary and legal professions� ���� if we accept that definition, all of these options are possible���” 319 clinical pathways to ethically substantive autonomy set itself especially about its rationale and method – and if in so doing, it must inevitably draw on the philosophical sciences, it must acknowledge its debt to them� in approaching our concluding remarks on this problem, however, it is worth noting that one very important substantive value is presented to us as a fait accompli requiring no philosophical effort of analysis whatsoever, namely the constitutional and moral issue of access to justice� it is in the context of a much reduced legal aid budget that our clinical students will encounter the general public and their legal needs� whatever ‘justice’ might be, ‘access to it’ in a world of commodified legal services and limited funding generally means ‘being able to hire a skilled legal representative’ or be provided with one free of charge� on the premise that ‘access to justice’ in a constitutional system of laws (i�e� all such systems) means ideally, access to all who require it, or, realistically, as much of it as can feasibly be provided, and that a failure in this regard is unethical and unconstitutional, ‘legal professionals’ are ‘ethically underdeveloped’ to the extent to which they are unaware of this substantive failure� from here we can make a further connection to another aspect of our wish-list of virtues noted above by rowe et al: namely, the ethical requirement for practitioners to ‘recogni[e] the broader implications of [their] work’� reflection on these ‘broader implications’ leads to a wider remit for ‘considering the ‘interest and values of clients’ and ‘others’� here, ironically, ‘others’ will increasingly denote persons who are unable to attain the status of being someone’s ‘client’� thus, these days, ‘access to justice’ becomes automatically integrated into the notion of clinical legal education, and this substantive connection with formal ethical requirements appears to require no deeply theoretical justification: it is simply accepted as a mark of well-rounded ethical professionalism� this natural current of sympathy is to be welcomed, but it should not lead us to believe that autonomous ethical judgement in the professions descends automatically upon all practitioners in all historical circumstances� autonomy requires constant critical and deliberate reflection� interestingly, however, the more closely we examine the jurisprudential rationale for maintaining access to justice and related constitutional and social entitlements, the more our fears about dogma and rigidity in engaging with substantive concerns are allayed� that is, what jurisprudential reflection on foundational values leads us to is not so much a list of conveniently concrete principles, but rather, insight into the method of their dynamic creation� our view is that the more clinical law students and practitioners come to understand the nature of rules, the more they understand what surrounds their ethical interpretation and application, and this surely must signal the start of the journey from the mechanical and formal grasp of the problem, towards the level of autonomous accomplishment required to deal with the problem professionally� there is, to be sure, a great deal that is unedifying in the traditional debates between legal positivism and natural law, but there is much to be learned from the challenge to law’s validity arising from the unavoidably ‘open texture’ of rules� it is this ‘open texture’ that fuels the perennial search for principles which are required to give semantic context and form to rules that will be, or might be, accorded the status of law� positivists and idealists might differ as to how, in preserving the distinction between law and morality, these principles might be incorporated as such in the form of procedurally recognisable sources, but what emerges from the debate is an acknowledgement, reluctant or otherwise, of the nature of the recognition of sources� the educational, doctrinal, professional, procedural, and political problems of law are irreducibly ethical not simply because law is a form of normativity that demands pre-eminence and compliance, but because implicit in its every utterance is a claim to legitimacy� if the acquisition of 320 international journal of clinical legal education issue 19 legal skills requires an understanding of the values that underpin the legal enterprise, an encounter with the philosophical method that seeks to identify these values must necessarily be seen to be of great practical importance� hart’s debate with fuller24 about the ‘inner morality of law’ is as accessible as any, and this famous exchange devotes scrupulous critical attention to whether or not we can detect substantive ethical principle embedded in the very idea of a rule regardless of its content� once we invite dworkin into this discussion the formal stability of the black letter gives way to a much more imaginative structure of creative interpretation where moral good sense reveals itself as legal substance in its own right� dworkin’s famous example in riggs v palmer of the ethical integrity required to make coherent sense of seemingly straightforward probate rules is as valuable to our understanding as it is simple� we might point out to students that (in the usa) probate ‘law’ is to be ignored and the principle that, ‘a person should not profit from wrong doing”, is to override it where appropriate�25 mechanical knowledge of this particular judgement – or several similar to it – would surely be of practical and technical value, but it is not, of course, an indication that one has achieved a level of autonomous ethical maturity� understanding from this illustration that the entire process of adjudication is structured by the constant search for cohesion between ethical principle and rules of general applicability, is, however, a step towards it, and it offers to clinical educationalists a clue as to how progress might be encouraged in this regard� bringing together the content of our model of the ‘matrix of concerns’ and establishing the direction of philosophical analysis exemplified in the debate between hart, fuller and dworkin offers a simple but perfectly coherent example of we understand by an interface of guided reflection: it is a phase of experiential learning that can lead the clinical student to grasp the by which mechanical and formal ethical requirements can be connected synthetically with substantive values� the interface could be said to amount to creating’ a zone of proximal development’� that can enable us to break the bonds of formalism in our educational literature and discourses� ‘knowing the law’ is an indispensable element of technical skill, but once it is revealed and accepted that there is an ethical dynamism and a creativity necessarily inherent in bringing legal rules into legitimate existence, then, the search for ethical principle, or the search for coherent principle overall, becomes an integral part of the professional understanding of the nature of legal practice� 24 h�l�a hart “positivism and the separation of law and morals” harvard law review, vol� 71, (i958)� 593-629 at p� 607� see, importantly fuller’s methodological comments in reply: lon l� fuller “positivism and fidelity to law: a reply to professor hart” harvard law review, vol� 71 no�4, 1958, pp� 630-672� 25 see ronald dworkin taking rights seriously (cambridge, ma: harvard university press) 1977; also law’s empire ( cambridge, ma: belknap press 1986 355 collaborating with other disciplines: best practice for legal clinics a case study of the women’s law clinic, university of ibadan nigeria omolade olomola,* oluyemisi bamgbose,* abstract there is a gradual shift in research towards a multi-disciplinary approach� this paradigm move is in compliance with globalization� according to carla mariano, the human service professions are facing problems so complex that no one discipline can possibly respond to them effectively�1 it has been noted that many clients in the women’s law clinic (wlc) of the university of ibadan not only have problems tagged as legal, but problems closely related to other disciplines such as psychology, sociology, medicine, counselling and social works� it was therefore so obvious that the clinic was not an island; it could not exist all alone and effectively find a holistic solution to the all embracing problems presented by the clients� the clinic therefore partnered with other departments/units to achieve its goals� * omolade olomola, lecturer, faculty of law & clinician, women’s law clinic university of ibadan, nigeria ** oluyemisi bamgbose, professor of criminal law and criminology dean faculty of law and director women’s law clinic, university of ibadan, nigeria collaborating with other disciplines: best practice for legal clinics a case study of the women’s law clinic, university of ibadan nigeria 1 mariano carla (1989) the case for interdisciplinary collaboration nursing outlook november/december 1989 at www�umdnj�edu/idsweb/idst5340/interdisciplinarycollaboration�pdf retrieved on i june 2012 356 international journal of clinical legal education issue 19 the goals of the wlc include providing legal services to the less advantaged women in society� it is a specialized clinic for women� it started off in the areas of human rights and family law, and has since expanded to accommodate other areas of law� thus in the light of the above, this paper considers ways by which legal clinics can collaborate with other disciplines in order to render all-round and balanced services to its clients� it details an interdisciplinary collaboration between the wlc in the faculty of law, university of ibadan, ibadan and other disciplines and units within and outside the university� a personal involvement in the problems of the disadvantaged and a solution to the problem can be one of the most rewarding experiences in the life of a lawyer� clients in a clinic present different cases expecting the clinician to find a solution to the problems whether or not it is legal� this makes partnering with other disciplines a best practice to meet the expectations of the client� history of the women’s law clinic, faculty of law, university of ibadan the idea to start a legal clinic was conceived during a stakeholders’ forum held in 2005 at the premier hotel, ibadan, oyo state, nigeria� at the forum, representatives from some human rights ngos lamented the lack of adequate personnel and funding to reach and service the target population� it was noted at that meeting that systematic efforts at protecting the rights of women would require the provision of additional legal services� it was then suggested that creative legal solutions like clinical legal education that enable women to have greater access to legal representation would help to eliminate barriers to access to justice� it was noted that academic institutions would have to collaborate with ngos and existing governmental legal institutions in addressing these issues in order to make any significant impact�it was also recognized that contribution from the academic community; including the legal education system, could have a significant impact in advancing the response to women’s justice issues in nigeria� university-based activities that include providing legal aid and conducting research would complement and support the exemplary work of ngos working in this area� it was noted that inadequate research on identifying and understanding issues associated with women’s access to justice as well as inadequate information about women’s rights ngos have contributed to women’s lack of access to justice�2 such research findings would help to define or understand the issues related to access facing women; evaluate the effectiveness of current programs addressing justice issues for women and design new programs to do the same�3 it was therefore agreed at the stakeholders meeting that one of the ways to overcome the problem of access of women to justice, is to establish a legal clinic at the faculty of law, university of ibadan, which would provide free legal services to indigent women while training and engaging the services of law students and staff clinicians� the faculty of law agreed to start a specialized clinic to provide pro bono services for indigent women and adopt clinical legal education methods in training the students� the decision of the faculty stems out of the fact that it is committed to the transformation of the society and particularly to fulfil the mission of the university which is to contribute to the transformation of society through creativity and innovation�4 2 ibid 3 ibid 4 vision of the university of ibadan retrieved from http://ww�ui�edu�ng/content/vision-and-mission/ on june 30, 2012 357 collaborating with other disciplines: best practice for legal clinics a case study of the women’s law clinic, university of ibadan nigeria the vision statement of the faculty is to be a world class faculty of law, dedicated to excellent legal training, research and development aimed at meeting the needs of the society; and the mission statements of the faculty are:1� to expand the frontiers of legal knowledge through learning and research� 2� to produce law graduates who are worthy in character, learning and sound judgment� 3� to contribute to the transformation of society through legal creativity, research and clinical legal education� 4� to serve as a dynamic custodian of society’s legal rights and values and thus sustain its integrity� 5� to be a centre of excellence in research for legal models of cutting edge global issues� 6� to be a focal point and voice for law faculties and legal education in sub saharan africa�5 the wlc was formally inaugurated on the 18th of july 2007 with good publicity at local and national levels; in print and electronic media� the women’s law clinic was therefore established in 2007 under consortium for development partnerships (cdp) project on ‘the rule of law: access to justice� the cdp is an international consortium of institutions devoted to conducting collaborative research and capacitybuilding activities in west africa� the faculty of law, university of ibadan, nigeria is one of the cdp member institutions playing an active role in the projects of the consortium� the clinic is one of the eight (8) projects developed and effectively launched� the women’s law clinic, university of ibadan, nigeria (wlc) is a specialized law clinic� it is a specialized clinic in the sense that it is for women and it began offering legal services in the areas of human rights and family law, which are in fact very wide areas and has since expanded to accommodate other areas of law� the clinic is a law school based in–house clinic located within the law faculty, university of ibadan, but in a separate building� it is also a live client clinic as students come in contact with live clients� it is also a clinic where students for academic credit and under the supervision of staff supervisors/clinicians, provide pro bono legal services to indigent and less advantaged women within ibadan metropolis�6 the wlc was established under phase i of the project� the clinic started in 2007 with a director, a full time clinic administrator, a clerk, a driver, five male and female staff clinicians and about twenty law student clinicians� as at the 2011/2012 session, the number of staff rose to ten academic staff clinicians, and eighty (80) students both at undergraduate and post graduate levels� the final year undergraduate students of criminology and public & international law and the 700 level (master’s programme) students of comparative family law, comparative criminal law and procedure, human rights and alternative dispute resolution are now involved in the clinic service�7 5 vision of the faculty of law, university of ibadan retrieved from http://law�ui�edu�ng/visionandmission on june 30 2012 6 bamgboseoluyemisi, olarindesmaranda, akintayo john, ekundayoosifunke, olaleyefolake, olomolaomolade, akinbolabukola, adejumo isaac, lifu peter, byron ibijoke (2011) “access to justice and human rights for women project under cdp 11” final report on cdp phase 11 codesria� submitted by the women’s law clinic, faculty of law, university of ibadan, ibadan� nigeria 7 ibid 358 international journal of clinical legal education issue 19 with a generous grant from the netherlands ministry of foreign affairs in 2007 to the consortium, the clinic was able to take off� the successful operation of the clinic under the phase i project, provided the impetus to embark on the objectives under cdp phase ii which were to continue to provide free legal services to less privileged (indigent) women in ibadan and its environs; continue to train law students using the women’s law clinic in the practice of law by utilizing techniques of clinical legal education to research and document the basic problems on women’s access to justice and to carry out intervention programmes in order to facilitate women’s access to justice� the clinic adopts a multidisciplinary approach in the representation of indigent women: it provides free legal and counselling services; educates women on their rights and follows-up on its cases, encourages alternative dispute resolution mechanisms (besides litigation), that remedy wrongs and at the same time maintain the integrity and harmony of the community� the clients in the clinic as stated above are indigent women� the clinic provides a legal platform for this category of women, who are poor and who have little or no access to justice as a result of social cultural and political factors� at inception, clients who came to the clinic were those that were financially poor and could not afford the services of a lawyer� however, the clinic came to realize that some women were being denied access to justice because of political factors� these categories of women were deemed to be politically indigent� the clinic therefore took in such clients and extended the services to them� the goal of the clinic is therefore to educate them and give assistance with pro bono legal services� the student clinicians who work in the clinic are trained to put into practice their theoretical legal knowledge, using clinical legal education� they interact with, and advise live clients under the supervision and guidance of staff clinicians�8 a day in the wlc a normal day in the wlc starts at 8�am with the clinic administrator and clerk opening up the clinic and resuming for the day’s work� women walk in as new clients, referral cases or on appointment� a roster which is prepared by the clinic administrator is available at the clinic, showing the staff and student clinicians on duty for the day� clinicians on duty for the day report at the clinic and in their cubicles� the cubicles are to ensure confidentiality and privacy during discussions� in the case of new clients; it is the duty of the clinic administrator to preliminarily determine if the client is eligible for representation in the clinic� once this is determined, the case is assigned to a group of student clinicians on duty� a case note is opened for the client and all the necessary details and information are recorded� clients are usually asked what they want or expect from the clinic before any advice is given� this is to allow the client to express herself while at the same time given proper counselling� the clinic has a policy not to impose advice on a client except where it is involves illegality, crime or life is endangered� this is followed by a detailed investigation of the case by the students under the supervision of a staff supervisor� the investigation may include letter writing to parties in the case inviting them to the clinic, immediate intervention in life threatening cases, visitation to parties involved in the case and referrals if necessary� depending on the nature of the case, appointments are given to clients to enable further investigations� after the exit of the client, the case is reviewed by the students and supervisor on how to proceed� where the case involves another party, the party is invited to give his or her 8 ibid 359 in own side of the case� the methods adopted in resolving cases in the clinic are the alternative dispute resolution methods that include mediation and reconciliation� where these methods fail, and there is need to go to court, if the client agrees, court papers are filed on behalf of the client and the client is represented in court� the need for collaboration in the wlc the word ‘collaboration’ is derived from the words com and labor which means to work jointly with others or together especially in an intellectual endeavor�9 the trend for many centuries has been that of single specialization in the different professions and disciplines� there have been arguments between professionals on which profession is the most important or the profession that was first in time and many other arguments� in an article by bamgbose, an illustration of one of such arguments was given�10 it was between a social worker and a lawyer� each boasted that his profession was the first in time� both lay claim to the earlier existence by tracing their profession to the story of creation as contained in the holy bible� the first argument was from the social worker who claimed that god is the first social worker and his first activity was social work inclined in that god created light out of darkness to enable all living things that were consequently created to have the opportunity to see clearly and enjoy whatsoever god apportioned to them� bamgbose further stated that in counter attack to this argument, the lawyer said that the first thing god did was to make a law when he said “let there be light”� not wanting to run in contempt of god’s court, the universe obliged god and there was light�11 he added that the argument had advanced to other areas such as the consideration whether one profession or discipline is relevant to the other or vice versa�12 professionals generally had always looked at cases before them in isolation and only in relation to their own discipline� the effect is that there is no coordinated approach adopted in solving other related cases arising from cases before them and they have not been able to look at problems holistically�this has sometimes aggravated the problem brought before them as problems are at times interwoven� on the approach to issues in contemporary times, bloch says that there is a strong appeal these days to approaching just about any topic from a global perspective�13 in order to provide socially relevant legal education, there is a need to address it from a global dimension� bloch therefore states that legal education has a global reach as it is available in one form or the other all over the world�14 it is high time law clinicians understood that they are members of a team� as such, the overall interest of the client must be their paramount concern� 9 merriam-webster’s dictionary and thesaurus 2006 10 bamgbose, olatokunbo john (2002) social work and the law� an unpublished seminar paper presented for during the 2002/2003 session during a social work course towards the award of a masters in social work in the faculty of education 11 ibid 12 ibid 13 blochfrank (2008) access to justice and the global clinical movement retrieved fromhttps://law�wustl�edu/ journal/28/blochbookpages�pdf on june 30 2012 14 ibid collaborating with other disciplines: best practice for legal clinics a case study of the women’s law clinic, university of ibadan nigeria 360 international journal of clinical legal education issue 19 mariano has stated that there are many crises facing society today�15 she stated that each of these crises requires a comprehensive approach and necessitates that professionals relate to many client institutional systems and collaborate with many professions� legal education is becoming more interdisciplinary� chenault is of the opinion that the historical models of single specialization should not continue� he therefore advocated that there be an attempt to develop an integrated whole rather than a combination of separate professional content areas or field�16 mariano therefore opined that the combination of the expertise in one discipline with another will result in coordinated services and provide a more holistic and integrated approach to addressing issues�17 with special reference to the legal profession, the conventional attitude of law professionals has been a problem for many centuries� in order to tackle the challenges posed by the knotty issues facing globalization, lawyers are now joining with other disciplines in problem-solving collaborations�18 during discussions with clients, it has been discovered that not all cases are solely legal related matters� many clients who come to the clinic face complex legal, psychological, social welfare, medical, financial, communal and juvenile related issues� many of the clients who come to the clinic are poor� apart from the free legal services provided by the clinic, they are not likely to be able to afford the services of other professionals to whom they may be referred to during or after dealing with the legal issue in the clinic or due to lack of knowledge may be unable to pursue the matter to a logical conclusion� the clinic does not have resources to pay for services rendered for these non legal services� as clinicians face the need to solve clients’ legal problems and the myriad of other personal, interpersonal and interdisciplinary problems, the need to develop strategies and tactics, which may involve other disciplines, governmental agencies, and various service providers become inevitable� it therefore became necessary to explore alternative methods of solving issues that may arise while dealing with legal issues without incurring further cost� apart from clients that walk in to the clinic, the clinic is also committed to educating women who are denied access or who do not have the knowledge as to how to gain access to justice� the student clinicians go on outreaches to educate women in medical clinics, hospitals, open markets, women groups in churches and mosques� in order to have a holistic approach to the problem brought to the clinic, an interdisciplinary collaboration with other disciplines, professionals and units had to be adopted� in many of the family related issues pertaining to custody or maintenance, the state social welfare department has had to be involved� where the matter has a criminal related issue, the police had to be contacted and the clinic had to follow up on the administrative issues� health related issues are referred to the university health services where it relates to a staff or student of the university or to the appropriate medical clinic with other clients or the department of psychology where it is 15 mariano carla (1989) the case for interdisciplinary collaborationnursing outlook november/december 1989 at www�umdnj�edu/idsweb/idst5340/interdisciplinarycollaboration�pdf retrieved on i june 2012� 16 chenault, j�andburnford f eds� (1978) future directions for human services� in human services professionaleducation: future directions, new york, mcgraw-hill book co�, 1978� 17 mariano carla (1989) the case for interdisciplinary collaborationnursing outlook november/december 1989 at www�umdnj�edu/idsweb/idst5340/interdisciplinarycollaboration�pdf retrieved on i june 2012� 18 martha minow (2003) public and private partnerships: accounting for the new religion� 116 harvard law review 1229 (2003) 361 a psychological issue� the clinic has enjoyed a cordial working relationship with the nigerian bar association (nba) and the international federation of women lawyers (fida)� in a few cases where clients need to be represented in court, members of these two associations have volunteered their services pro-bono and assisted the clinic� with this approach, the clinic has had clients whose legal issue has not only been looked into or solved successfully, but other non legal related problems dealt with� interdisciplinary work has to a great extent assisted in the training of the law students in solving problems using creative methods while it has also introduced a holistic approach to solving cases in the clinic� knowledge is power� all women who walk into the clinic, whether they are eligible or not are attended to� clients, who are not eligible, are still educated and directed appropriately� the collaboration model used in the women’s law clinic and some case studies will be discussed� collaborative models and the wlc model the wlc works closely with other departments and units of the university of ibadan� the experts from these disciplines, and those from other organizations within ibadan metropolis, work together to enhance services for the clients� in addition to the benefits to the clients, the students’ professional education is enriched� mariano (1989) is an advocate of interdisciplinary collaboration�19 she stated this in relation to health issues� she however stated that the concept is poorly understood� this statement is true� quoting scot20 , mariano went further to state that the term interdisciplinarity is plagued with misunderstandings about terminology�21 she added that terms used interchangeably with the word interdisciplinary include multidisciplinary, transdisciplinary, pluridisciplinary and crossdisciplinary and there are different definitions given to the term� one of the definitions is that “it is the continuous interaction of two or more disciplines organized into a common effort to solve or explore a common problem.”22 the authors of this paper adopt this definition as it best describes the collaborative model used in the wlc as will be discussed below� from the onset, it should be made clear that the wlc does not operate the clinic within clinic model neither does it adopt the integrated model clinic� the other disciplines, professionals or third persons with which the wlc works, are not based and do not have offices within the wlc� clients who are seen or recognized to be in need of any other professional care are “referred” to the departments or units concerned while the clinicians handling the case has the responsibility of following up on the case� as mentioned earlier, the clinic does not only deal with clients that come into the clinic� the clinic regularly goes out on outreaches to educate women about their 19 mariano carla (1989) the case for interdisciplinary collaboration nursing outlook november/december 1989 at www�umdnj�edu/idsweb/idst5340/interdisciplinarycollaboration�pdf retrieved on i june 2012 20 scott, r� (1979) personal and institutional problems encountered in being interdisciplinary� in interdisciplinarity and highereducation� ed� by j� j� kockelmans� university park, pennsylvania state university press, 1979, p� 307 21 mariano carla (1989) the case for interdisciplinary collaboration nursing outlook november/december 1989 at www�umdnj�edu/idsweb/idst5340/interdisciplinarycollaboration�pdf retrieved on i june 2012 22 mariano carla (1989) the case for interdisciplinary collaboration nursing outlook november/december 1989 at www�umdnj�edu/idsweb/idst5340/interdisciplinarycollaboration�pdf retrieved on i june 2012 scott, r�personal and institutional problems encountered in being interdisciplinary� in interdisciplinarity and highereducation�ed� by j� j� kockelmans� university park, pennsylvania state university press, 1979, p� 307 collaborating with other disciplines: best practice for legal clinics a case study of the women’s law clinic, university of ibadan nigeria 362 international journal of clinical legal education issue 19 rights and sensitize them about the clinic� these outreaches and sensitization drives are held in various communities, markets, religious houses, hospitals and schools as these places have a higher population of indigent women� in a study, gross and filante stated that merely bringing together the legal discipline with another discipline in the university setting does not guarantee educational enhancement�23 the above statement was also echoed by barry, dubin and joy�24 while agreeing that interdisciplinary clinical programs offer many valuable skills by means of collaboration, they further stated that bringing professionals together does not ensure that they will function well as a team or make appropriate collaborative decision� the position of the authors of this paper is that though the version of the collaboration between the wlc and other units and disciplines is not based on any specific model, it has worked well for the clinic� the wlc took into consideration certain factors which include administrative, space, logistics and cultural and found this type of collaboration, to be the most appropriate and practical one for the clinic� the cases brought to the wlc differ from one to the other� while some are purely legal, the others vary and are interdisciplinary in nature� therefore, it is convenient for the wlc to refer clients to other collaborating disciplines where there is an existing formal understanding to collaborate� the student clinicians in the wlc are final year law students and postgraduate students of law� this is to ensure that the students have a proper understanding of the issues being handled, with more experience and skill to advice� this model is to provide legal expertise to the clients while facilitating other services which the client may need� with this model of collaboration, files of clients are restricted to only law clinicians and the confidentiality of the client and the case is protected� community collaboration in africa in general and nigeria in particular, there are different cultural practices� one of such is obvious in the selection of communities within which researchers carry out their work� during the course of selecting communities within which to embark on the sensitization drives, the clinicians had to meet with the relevant community leaders for permission to relate with the women in the community� this has to do with the culture� it is a cultural practice in most nigerian indigenous community (where the indigent women live) that the traditional head of the community must give permission before there is any interaction with residents� in idi-omo village, a small rural community in ibadan, nigeria, there is an on-going collaboration with the community through a working relationship with the community head� the clinic has access in to the community and a working relationship with the women with the kind cooperation of the traditional leader and the head of the women in the community known as iyalode�25 through this collaboration, the clinic has been able to intervene and resolve disputes in and for the community, regularly organizing programs for women and there are on-going cases that are being handled for some women who 23 gross, j� i and filante, r� w (2005) developing a law / business collaboration through pace’s securities arbitration clinic in fordham journal of corporate and financial law volume 11 2005-2006 at http://ssm�com/ abstract=1032301 retrieved on 12 june 2012 24 barry m�m, dubin, j�c� and joy, p� a (2000) clinical legal education for the millennium: the third wave� 7 clinical law review. i. 69-70 2000� 25 iyalode is the administrative head of all women in any traditional south-western community of nigeria� she also has some controlling powers on women under her community 363 are clients in the clinic� department of psychology this is a department within the university located near the faculty of law particularly at the faculty of social sciences� in 2009, after clinicians noted that some clients had psychological issues in addition to the legal problems presented at the clinic, the director and the clinic administrator visited the psychology department and met with the head of department and clinicians in the department� the wlc was informed that the department has an active clinic and would be willing to handle cases referred from the wlc� the agreement was documented with an understanding that both the wlc and the department of psychology will benefit mutually� this collaborative relationship is working well� a client whose case is still on-going in the clinic is closely, monitored in the department of psychology� however cases that are completed and or closed in the clinic, but still ongoing in the department of psychology are left to the discretion of the department as to what to do to it� department of social work this department is within the university and located in the faculty of education� the wlc has enjoyed a working collaboration with the department� personnel from the department, posted to the social welfare unit of the university health services (jaja clinic) attend to clients who are referred to them� department of special education the department is located in the faculty of education with different specialized clinics� referrals are made from the wlc to their clinics� department of guidance and counselling the department is within the university and is also located in the faculty of education� the department approached the clinic with a request that some of their final year students be allowed to spend about six (6) weeks internship in the clinic offering free counselling to clients� the students are posted to the clinic, and the counselling is done in the clinic� most of the clients that are counselled are those with domestic violence cases and the children of such families� case files of the clients are studied and appropriate counselling given� the university health center (jaja clinic) the university health center popularly called jaja clinic is the health center of the university of ibadan and located within the university� jaja clinic serves both staff and students of the university and services are offered to students free and staff at a very subsidized rate� the maternal health unit of jaja clinic, which is for nursing mothers, is opened to the public at a subsidized rate on tuesdays� the jaja clinic is headed by a medical director� the wlc has a collaborative working relationship with jaja clinic especially with the maternal health unit� once a month, the wlc addresses the nursing mothers who attend the maternal health unit on reproductive health issues and other right matters� some of the clients in the clinic got to know about the clinic through this sensitization and educative outreach� in addition to the above, medical cases collaborating with other disciplines: best practice for legal clinics a case study of the women’s law clinic, university of ibadan nigeria 364 international journal of clinical legal education issue 19 involving staff and students are referred to jaja clinic while legal issues arising from medical issues are referred from jaja clinic to the wlc� these are mainly assault and domestic violence cases� university of ibadan, diamond fm radio station this is the university owned radio station� the station is located within the university campus from where it transmits within and outside the university covering four states in nigeria� with this relatively large coverage area and the fact that it is aired in ibadan, the station serves as a means of sensitizing and educating the target group of indigent women� the program is broadcast in english and the local languages� through this means some of the clients got to know about the clinic� programs organized by the clinic are also aired on the station� the juvenile/ family court though the wlc is a specialized clinic for women, the family court in ibadan requested collaboration with the clinic� this collaborative relationship has eventually been of mutual benefit to both the court and the clinic� regarding the benefit to the court, a few cases involving female children relating to their sexual habits have been referred to and handled by the clinic� this was as a result of shortage of social workers in the courts� the clinic handled such cases using the legal clinicians, social workers from the university health services and counsellors from collaborating departments� on its own part, the wlc sought the assistance of the juvenile court in the placement of two children for adoption� the oyo state police command on the inauguration of the wlc in 2007, there was wide publicity� at the ceremony, stakeholders including the police, community leaders, magistrates, journalists and many others indicated that they would support the work at the clinic and some agreed to have a collaborative working relationship with the clinic� the collaborative relationship with the police is one of such� some of the clients in the clinic have expressed their concerns about the police� whether the concerns are justified or not is not the crux of this paper� however, bamgbose (1997), in an article, that examined the perception of the police by the poor, stated that the poor would not want to have anything to do with the police� the involvement of the wlc in cases requiring the police coming in, has allayed any fears the clients have� the clinic has enjoyed working with the female divisional police officer in charge of the station, under whose jurisdiction the university falls� a few case studies highlighting the collaboration of the wlc with other disciplines and units are discussed below� 1. case wlc/ cas/ 077 the client was a 400 level student in the university who was being sexually harassed by her lecturer� she reported this case at the clinic� while the case was being investigated, it was discovered that the issue had a psychological effect on the client� the client was referred to the department of psychology of the university and a psychologist took up this aspect of the case� there was need for evidence of this case which the student produced by tricking her lecturer into her hostel and 365 pictures of the lecturer were taken in a compromising situation� the matter was later reported to the students’ affairs unit of the university and it became a disciplinary matter� the lecturer after due process was followed was dismissed from the university� collaborative department/unit: department of psychology 2. case wlc/cas/133 the client came to the clinic because her husband had deserted her and she wanted him to be responsible for her maintenance and the upkeep of the children� the clinician in charge invited the husband to the clinic but he refused to honour the invitation� the clinicians referred the case to the state social welfare unit� (sswu)� the sswu invited the husband of the client for a meeting with the wlc and the sswu� the husband agreed to pay for her maintenance and upkeep of the children� the parties then agreed that the agreed sum was to be deposited monthly in a bank account� collaborative unit: state social welfare unit 3. case wlc/cas/180 the client, a young girl of about sixteen years old was alleged to have been sexually assaulted by four (4) young boys� the boys were arrested by the police and taken before a juvenile court� they alleged that they did not assault the young lady but were having fun with the consent of the girl� the court while considering the case discovered that all parties were sexually active and exposed to sexual activities� the juvenile court referred the young girl to the wlc for counselling� the young girl came to the clinic with her parents� the clinicians in this case had to depart from the normal practice of referral and invited a social worker and a guidance counsellor from the departments of social work and guidance counselling� this was because of the peculiar nature of the case which involved an under aged girl� the three (3) experts advised and counselled the client on sex education and also had a talk with the parents who appeared to have neglected the young girl� after sessions of advice and counselling spanning over a few weeks, the young client was sent back to the juvenile court with a report� the state juvenile court has shortage of social workers which makes comprehensive supervision of young offenders impossible� the collaboration with the clinic has been mutual as cases involving children are also brought to the court from the wlc� collaborative departments/units: department of social work; department of guidance and counselling; state juvenile court 4. case wlc/c.as/181 the client, a girl of 16 years old claimed before a juvenile court that two boys raped her on her way home� she was discovered by a pastor at the scene and the matter reported to her parents� she was taken to the police station and then taken to the hospital� the two boys denied sexually assaulting her� they claimed that they did not forcefully assault her as she claimed, but that our client was the one who persuaded the boys to “sleep” with her� the boys stated that the girl practically begged them to “sleep” with her� the boys are 12 years of age� the parents of both collaborating with other disciplines: best practice for legal clinics a case study of the women’s law clinic, university of ibadan nigeria 366 international journal of clinical legal education issue 19 boys are divorcees� the state juvenile court after listening to the case referred the young girl and her parents to the wlc� two clinicians were assigned to the case to counsel the girl and her parents� a social worker and a guidance counsellor from the departments of social work and guidance counselling were also invited�it was discovered during the counselling that the girl had some mental challenges and other medical issues� the case could not be referred to the university health services as the client was neither a staff nor student of the university� however, the observation of the clinic was in the report sent back to the court and the advice for medical intervention in a government health center� collaborative departments/units: state juvenile court; department of social work and department of guidance and counselling 5. case wlc/cas/140 the client, e, a student of the university, reported in the clinic that she was raped by an acquaintance outside the university campus� e alleged that the incident happened in the house of an influential politician and expressed her fears that it might be impossible to obtain justice� the wlc immediately reported the case at the campus security service (css) and e was taken to the university health services for medical attention� being a criminal offence, the css referred the case to the police having jurisdiction over the matter� e again expressed her fears about going to the police and the clinicians accompanied her� a female police officer and the clinicians then accompanied e to the scene of the crime� upon getting to the house, the suspect had escaped� all efforts to reach him thereafter proved abortive� the police kept surveillance on the premises for some time and e was told to contact the police any time she heard from the suspect� e after a few weeks came to the wlc and informed the clinicians that she was no longer interested in pursuing the case and would like to face her studies� she was however counselled to complete her medical treatment� collaborativedepartments/ units: university health services (jaja clinic); the police 6. case wlc/cas/108 the client, f, came to the clinic to report that her siblings (brothers and sisters) beat her� the reason for the beating was to force her out of their parent’s house which f was occupying� f, a university staff member was referred to the university health services (jaja clinic) for medical attention� several efforts were made by the wlc to invite f’s sibling but this proved abortive� because of the threat to her life, the matter was referred to the sango police station� the wlc observed that f was psychologically disturbed by this problem� she was referred to the department of psychology for further treatment� the police intervened into the family matter with the help of the wlc and the matter was amicably settled� 367 collaborative departments/units: university health services (jaja clinic); department of psychology; the police 7. case wlc/cas/039 the client, g, came to the clinic seeking legal aid for access to her children after her husband deserted her taking the children with him� g’s husband was invited to the wlc and an agreement was reached by the parties on having access to the children� the agreement was adhered to until the children refused to go back to their father’s house� the husband reported at the police station and g was arrested� at the police station, the wlc represented g� both parties were advised and counselled by the police and the clinicians� a concrete arrangement was thereafter made on how g will have access to her children on a regular basis� the husband agreed on an allowance to be sent to g for the upkeep of the baby which was to be left with her� collaborative unit: the police 8. case wlc/cas/111 the initial client, h, now deceased reported to the wlc that she became pregnant to her partner to whom she was not legally married� after her baby died a few months after delivery she continued her relationship with her partner� when she got pregnant again, she alleged that her partner denied the pregnancy and deserted her� she asked the clinic to ensure that her partner took care of her, the pregnancy and the baby after delivery� the partner did not honour the letters of invitation written to him by the wlc� two months after the case came to the wlc, h died� the immediate sister to h referred to as j immediately reported the death to the wlc because the family of h suspected foul play� j was advised to report to the police� because of her reluctance to go alone, the clinician accompanied her to the police station and the partner was arrested� after the arrest, his family members from his community came to the wlc, seeking the intervention for his release from the police� this case according to the community members was a community/family issue that should be amicably resolved� the police after due investigation found out that the allegation of foul play was not true and the partner was released to his community/family members� the community/ family of the partner of late h, approached the wlc to intervene in the matter which j is now pursuing in the wlc� j informed the wlc that she was pursuing the case in the wlc on behalf of her family/community members� investigation by the clinicians handling the case revealed that this was more than a legal issue and that traditional and cultural issues had to be resolved� it was regarded as a taboo in the community of late h, j and the partner, to impregnate a woman without paying the bride price and for her to die with the pregnancy while the bride price remains unpaid� the wlc had a clear understanding of the cultural milieu within which the clinic operated� at this stage, a new clinician who understood the culture of the two parties had to be invited to join in the case� the partner was re-invited to the wlc and he honoured the invitation� to resolve the issue, the wlc advised him to go with the representatives of his community members to apologize to the deceased’s community members and this was done� j came back to the wlc to report that the case had been settled and the case file was closed collaborating with other disciplines: best practice for legal clinics a case study of the women’s law clinic, university of ibadan nigeria 368 international journal of clinical legal education issue 19 collaborativedepartment/ unit: the police, 9. case wlc/cas/122 the client, k, came to the clinic for legal assistance so that her husband can take parental responsibility and support in taking care of the children and for the wlc to intervene in the constant beating by her husband� the wlc was of the opinion that k had to be moved immediately from the home while the case was being looked into� efforts to get her father to accommodate her proved abortive� arrangements were made by the wlc for k and her husband to see a psychologist but they were not willing to submit themselves for counselling session� while the case was on-going, k suffered a psychiatric break down and had to be admitted at a teaching hospital� the wlc was later informed that the issue has been settled amicably� collaborativedepartment/ unit: department of psychology 10. special case this special case was reported to the clinic by the director� the case was that of a student of the university with hearing impediment� this was affecting her studies� the client was interviewed with the assistance of an interpreter and the issue was referred to the special education department for urgent intervention� collaborativedepartment/ unit: department of special education 11. classified case this classified case of an abandoned baby girl was referred to the wlc by the university health services (jaja clinic)�the wlc initially worked with the campus security services and the police� the case is presently being handled by the wlc, jaja clinic, the university social welfare unit, the state social welfare unit and the state juvenile court� collaborative units: the campus security unit, the police, university health services (jaja clinic), university social welfare office,state social welfare office and the juvenile court. benefits of the collaborative model of the wlc the traditional legal education does not provide the training needed to solve non-legal issues� however with the introduction of clinical legal education and the involvement of students in the clinic, coupled with the fact that non-legal issues come up and are referred to the appropriate collaborating units, law students become more creative problem solvers in law practice� a student clinician in the wlc stated, “i am becoming more confident in handling cases of clients� it is not only the case brought by the client that a clinician will have to deal with� other issues come up and if they are not addressed, the legal issue cannot be appropriately resolved� referring non-legal issues to the appropriate units heals the client” 369 another benefit of the collaboration of the wlc with other disciplines is that it brings to reality the multidimensional angle of some cases, therefore letting the student clinician experience what legal practice will be� it therefore prepares a student for practice� a graduate student who spent a year in the wlc had this to say� “i realized that some of the cases i handled in the clinic where not strictly on legal issues� the purported legal issues at times arose out of non legal issues� the clinic was just the first point of call� what i did in most cases was to calm the client down, give a good listening ear, counsel, handle the legal issue, and refer to the appropriate discipline or unit like the social welfare unit� now that i am in practice, i take the cases of clients from a holistic perspective and advise them accordingly� while i handle the legal issues, i advise as to other experts that may be called in and be involved in the case” gross and filante stated that the clients are the greatest beneficiaries when clinics collaborate with other disciplines�26 the authors of this paper agree with this statement� as a result of the collaboration model adopted in the wlc, clients in the clinic have the benefit of free legal services and those with non-legal issues have been able to resolve them free� mrs a, a client in the wlc had this to say� “i came to the clinic because i wanted the clinic to tell my husband who had abandoned me and the children, to be giving me money to take care of me and the children� i was not well and unhappy when i came to the clinic and i thought the money will remove all these problems� at the clinic, the man listened to me very well and asked me what i wanted� he assured me that the clinic will assist me� he told me that i will have to see someone, who is not a lawyer, and who is not in the clinic, who will not take money from me, who will talk to me because i was unhappy and not well and that because my children are involved, the clinic will have to contact the state social welfare department� my husband is now paying some money to take care of me and the children and i collect this weekly from the clinic� they talked to me at the place where i was told to go and i am now well and happy” in this case, the psychology department and the social welfare unit were involved in resolving the case� another benefit of the collaborative model adopted by the wlc is that it exposes law students to non legal problems arising from legal problems� the effect is that the students are able to appreciate the importance of other disciplines� arising from the above benefit is the fact that law students interact with students and experts in other disciplines� as seen in the case studies above, the clinicians from the wlc in certain instances accompany clients whose cases are referred to other collaborating disciplines and also do some follow up with clients in these places� through this, law clinicians have an insight into the work done in other disciplines� the collaboration has made law clinicians move out of their legal confine and boundaries� a few law graduates who worked in the wlc enrolled for postgraduate courses in other disciplines� the interest to take the courses was as a result of the experience with clients in the wlc� the interaction referred to above has mutual benefits to all the collaborating disciplines� a final student from the department of guidance and counselling in the university of ibadanwas an intern in the wlc for three (3) months� in an interview with her, she had this to say on the collaborative model adopted by the wlc� “there is no one way solution to a problem� a problem should be 26 gross, j� i and filante, r� w (2005) developing a law / business collaboration through pace’s securities arbitration clinic in fordham journal of corporate and financial law volume 11 2005-2006 at http://ssm�com/ abstract=1032301 retrieved on 12 june 2012 collaborating with other disciplines: best practice for legal clinics a case study of the women’s law clinic, university of ibadan nigeria 370 international journal of clinical legal education issue 19 tackled from all aspects�” she further stated “from my training in guidance and counselling, i have come to realize that everyone can guide but not everyone is trained to counsel� in my department, there are different areas of specialization just like in law� i like the referral method adopted by the wlc� it allows the client referred from the wlc to the collaborating discipline/unit to have the benefit of having a number of specialist attention needed to resolve her problem” there are cases where the issue that triggered off the legal issue was a non legal one� collaborating with such discipline/unit will be of tremendous benefit in resolving thelegal issue� challenges the collaborative model adopted by the wlc, which is interdisciplinary or multidisciplinary in approach, has some challenges� these include wide scope the scope of the collaboration model adopted by the wlc is too wide� this has brought the clinic into working contact with quite a large number of disciplines� inadequate monitoring/follow up/ feedback the effect of the wide scope is that clinicians in some cases are unable to properly follow up clients who are referred to other disciplines and unable to have feedbacks which is an important aspect of collaboration differences in goals and ethical norms. the goals of the wlc and the ethical norms of the legal profession and that of other disciplines/ units sometimes differ� while a goal of the wlc is to provide free legal access to justice for indigent women, some of the collaborating disciplines do not have the same goal� while clients in the wlc are attended to free, they are at times required to pay a token amount in the department referred to� the authors of this paper therefore agree with connolly (2003) when he stated that some of the barriers to collaboration include cost logistics, and different ethical norms between disciplines�27 an example was the case of a client who was physically assaulted by her husband and had to come to the clinic� the clinic referred the case to the police station� at the station, the male officer who attended to the case quietly advised the client to go back home and resolve the issue amicably to the dismay of the clinician and client� it took the intervention of the clinician at the station for the police to take action� the fact was that while the police viewed the matter from a cultural perspective, the wlc took a legal stand� 27 connolly kim d (2003) elucidating the elephant: interdisciplinary law school classes 11 wash u journal of law and policy 11 at 18� 371 geographical proximity/logistic complications the fact that the clients are referred to other departments which are not within the wlc has its challenges� the geographical proximity poses a problem for some indigent clients who are unable to afford the cost of transportation� this at times causes problems in keeping up with appointments� logistic complication has been identified as a major problem�28 conclusion the whole world is gradually becoming a global village thus there is a paradigm shift of individuality in solving developmental issues to combination of efforts� governments of different countries are not left out in the campaign for collaboration to move their countries forward and internationally relevant� for research, the focus is gradually shifting from personal research to joint research in form of collaboration� an african proverb says “two heads are better one”� in complementing this proverb, researchers are coming together to have comprehensive results� in a bid to be relevant to the immediate community of the university of ibadan and in furtherance of the internalization policy of the university, the women’s law clinic has adopted a collaborative approach in resolving issues� this has been evidenced in the best practice that has been achieved so far whilst more will be done in the nearest future� in order to deal with the challenges posed by the complex problems faced with globalization, lawyers are joining with other disciplines in problem-solving collaborations�29 collaboration is always the next stage when a person is confused and solution seems not to be in sight� collaborations is done to exchange ideas and information and to source for information on the way out� in order to achieve the laudable aims and objectives of legal clinics, collaborative ventures are inevitable� 28 schlossberg d (2003) an examination of transactional law clinics and interdisciplinary education 11 washu law journal and policy 195 at 212 – 214 (2003) 29 minow martha (2003) public and private partnerships: accounting for the new religion� 116 harvard law review 1229 collaborating with other disciplines: best practice for legal clinics a case study of the women’s law clinic, university of ibadan nigeria 372 international journal of clinical legal education issue 19 1 editorial dr lyndsey bengtsson lyndsey2.bengtsson@northumbria.ac.uk our recent, and fantastically successful, conference at stellenbosch university (thank you to our gaje and saulca partners and to all participants!) focused on justice education, building resilience and strong connections. it is fitting that this first edition of 2023 has three articles which focus on africa and continues our conference theme. authors share innovative approaches and research on educational methods which promote social justice and show the value of strong connections. we begin with omoyemen lucia odigie-emmanuel and shiksha dahiya’s article on ‘the role of legal clinics in promoting human rights.’ the authors provide insightful reflections using case studies from the nigeria law school yenagoa law clinic, the legal support and care centre at gd goenka university school of law gurgaon, india and legal aid society at the northcap university, gurugram haryana, india. the article explores how each clinic promotes human rights through their work in schools, prisons and communities. also using nigeria as a case study, emeke chegwe’s article ‘evaluating the role of a nondoctrinal legal research method on legal education and practice in common law africa’ presents the results of a study which examines the link between non-doctrinal legal research method and the quality of legal education. the article explores this mailto:lyndsey2.bengtsson@northumbria.ac.uk 2 relationship, concluding that there is a positive relationship the two and offers recommendations as a way of encouraging this type of research in nigeria. in ngozi maduafor’s practice report ‘peace and conflict transformation through the clinical legal education programme’, the author provides an interesting summary of the history of clinical legal education in south africa, nigeria and uganda. she then goes onto explore ways in which clinical legal education is helping to curtail communal violence. in our from the field section anahita surya and nupur’s paper ‘harnessingngo internships for student learning: project report submission to the gaje symposium 2021’ explores the experiences of the centre for social justice in india, an internship program. the authors provide us with a really helpful overview of the programme and insights into how to strengthen this model of clinical legal education. finally, we have zara saeidzadeh, bojana cuckovic and dragica vujadinovic’s paper ‘clinical legal education for gender justice in europe’ which explores the challenges faced by sweden and serbia in achieving gender justice. the paper introduces us to the authors’ research project lawgem (which is new quality in education for gender equality – strategic partnership for the development of master’s study program on law and gender) and explains the development of a gender equality legal clinic. finally, i’m delighted to say that this july (20th-21st) we will be doing something different in place of our traditional conference format. our ijcle event this year will 3 be focused on research in progress, hosted in the law society of ireland’s headquarters at blackhall place, dublin. over two days you will be invited to share their research, their methods and approach to analysis. the workshop will provide a forum for all participants to give and receive supportive feedback. places on this workshop are limited with successful applicants receiving confirmation before the deadline of 31st march 2023. for full details please see: https://www.northumbria.ac.uk/about-us/news-events/events/2023/07/ijcle-dublin2023 https://www.northumbria.ac.uk/about-us/news-events/events/2023/07/ijcle-dublin-2023 https://www.northumbria.ac.uk/about-us/news-events/events/2023/07/ijcle-dublin-2023 5 teaching professionalism in legal clinic – what new practitioners say is important tony foley, margie rowe, vivien holmes, stephen tang tony foley anu college of law the australian national university canberra act 0200 australia tony�foley@anu�edu�au associate professor tony foley teaches in the legal practice program at the australian national university college of law� margie rowe has been the sub-dean of the program since 2007� vivien holmes teaches and researches in legal ethics in the program� stephen tang is a qualified lawyer, registered psychologist and phd candidate in clinical psychology� 6 international journal of clinical legal education issue 17 introduction anecdotal evidence suggests new lawyers may struggle as they begin legal practice� little is known empirically about their actual experiences� this paper provides some insights into what occurs in this transition� it reports on a qualitative study currently underway tracking new lawyers through their first year of practice� preliminary analysis of data from interviews and from workplace observations suggests clinical legal education can play a significant role in smoothing the transition and helping new lawyers develop their sense of professionalism� into their vocational training year� we track new lawyers in the context of their post-admission practice with a small cohort of recently admitted lawyers interviewed and observed in their day to day practice�1 we describe what these new lawyers say is important to an effective transition – developing autonomy, learning to deal with uncertainty and finding an accommodation between their developing professional values and those modelled by their firm and colleagues� clinical programs offer opportunities for an early reflective exposure to these experiences� legal ‘professionalism’ the notion of ‘professionalism’ involves the development of a ‘professional identity’, much in the sense used in the carnegie report: [professional identity] which is sometimes described as professionalism, social responsibility, or ethics, draws to the foreground the purposes of the profession and the formation of the identity of lawyers guided by those purposes���[this includes] forming legal professionals who are both competent and responsible to clients and the public���2 while the carnegie report’s focus was on an ideal legal education, developing a professional identity continues during a new lawyer’s early exposure to practice� the experiences are in effect an apprenticeship – where certain cognitive, practical and formative milestones ideally need to be met� the report’s authors use the term ‘professionalism’ more or less synonymously with ethics – to connote both the need for competence as well as the need to act responsibly towards clients and the public� the inclusion of competence in the ethics equation is important� lack of competence may not be ’unethical’ in the narrower sense of immoral, but it is nonetheless unethical when it fails to deliver on professional responsibility� acquiring the skills of competent ‘lawyering’ requires grounding in both theoretical and applied knowledge that can only be gained in the actual practice of law� this is the combination that schon3 calls ‘doing-in-action with the aid of knowledge-in action’� it is only through the process of ‘learning to lawyer’ that new lawyers can create themselves as legal professionals� ‘learning to 1 all participants completed timesheets during a discrete period (normally a week), showing how they spend their time at work, what type of activities they are engaged in, with whom they interacted and details of the contexts in which they work� 2 william m sullivan, anne colby, judith welch wegner, lloyd bond, lee s shulman, educating lawyers: preparation for the profession of law (2007), 14� 3 schon, d the reflective practitioner (1983), 141 7 teaching professionalism in legal clinic – what new practitioners say is important lawyer’ requires ‘interactions with others as much as, if not more than, the knowledge [found] in texts’, and as such can only really begin once the new lawyer is in some form of practice�4 methodology the eleven participants in this pilot project (4 males and 7 females) include newly admitted lawyers in private practice (small and medium firms5, specialised family law and criminal law practices) and public practice (government legal department, legal aid and community legal practices)� all participants were in practice in the australian capital territory (act), an area in which canberra, the federal capital of australia is located� the act has a population approaching 350,000 and has approximately 1400 practising lawyers (in private and government practice)� participants were identified through a convenience sample that involved contacting a number of firms within the jurisdiction, as well as targeting new lawyers directly through notices in law society publications� data collection began in 2009 and continued throughout 2010� participants were tracked in their ‘transitionary year’ of practice which we took to be the first 12 months post-admission� ideally, participants were interviewed twice (early and late) in their transitionary year� interviews were also conducted, where possible, with supervisors and with ‘significant others’ in the practice� though not constituting a statistically representative sample, the experiences of these participants do provide some empirically-based insights into the lived experience of lawyers new to practice� this paper is illustrated with extracts from interview data, principally using the comments of one respondent, ‘alison’ as a case study�6 ‘alison’ is a lawyer in her late-twenties working in a private mid size firm specialising in a branch of litigation� she described her level of personal wellbeing and satisfaction during her first year as being ‘up and down’� she routinely worked about 40-50 hours a week, and only sometimes took more work home� she felt most comfortable with the written responsibilities of her work, and felt less confident in oral tasks, particularly court appearances which with the nature of her practice were routinely required� she spoke positively of the training opportunities her practice allowed her in both internal and external programs� she had been rotated through various ‘teams’ in the practice, doing a variety of work in each� she was idealistically motivated; expressly saying ‘i desperately want to have a career where i feel that i’m making a difference’� comments from her interviews and those with her supervisor illustrate factors and experiences which she said influenced her development� while her story is obviously unique, it does highlight the three situational factors which other participants also identified as important in gaining a sense of professional identity� the details of these factors emerged for us through a process of inference and inquiry carried out both before and during the data collection� before we began we developed a number of hypotheses about what factors would be influential� these were based 4 flood, j (1991) ‘doing business: the management of uncertainty in lawyers’ work’ law & society review 25(1) 41, 68� 5 the australian bureau of statistics 8667�0 legal practices legal practices, australia, 2001-02 makes a distinction between solicitor practices with 1-2 working principals, 3-5 working principals, and 10 or more working principals though it does not refer to these specifically as these small/medium/large firms, viewed 13 september 2010 at http://www�abs�gov�au/ausstats/abs@�nsf/lookup/8667�0main+features12001-02� we equate a small practice as having up to two principals and a medium practice as having up to five principals� 6 names of participants are anonymised� 8 international journal of clinical legal education issue 17 upon our own experience as legal practitioners and legal educators, and also from a review of the relevant literature� we hypothesised, for instance, that issues of acquiring competence and gaining autonomy would be core influences� although intentionally guided by these pre-conceived ideas, we applied a data analysis approach based on grounded theory7 to test whether participants identified such factors�8 competence and autonomy did emerge as important, but participants also highlighted exposure to situations which we termed ‘dramatic learning events’ as being particularly influential in their progress� in a similar way, we found that participants placed particular importance on learning to deal with uncertainty� while we had assumed that learning to deal with the emotionality of practice would be important, we had also surmised that law graduates would not anticipate the extent of its intrusion into their legal work� we had assumed they would see the need to integrate the emotional and intuitive aspects of practice in order to make a successful transition to practice� however, the data analysis showed that dealing with emotions was only one aspect of uncertainty management and that this factor in itself featured far more prominently in what they told us� from this combined process of inference and analysis we isolated the three factors described as important to a smooth transition� new lawyers said they needed exposure to experiences which allowed them to: • develop their confidence and competence in their practice by being permitted to balance personal autonomy with appropriate mentoring and supervision� participants had much to say about their experience of surviving ‘dramatic events’; • realise that practice was more than a rational and rule-based activity, and one that of necessity involved persuasive uncertainty� their responses often disclosed feelings of uncertainty about their role as lawyers, about the law itself and about how they were to deal with the complexity of ‘real’ people displaying ‘real’ emotions; and • find a comfortable ‘value accommodation’ between their own developing professional sense and the professional values modelled and practised by their firm� results the importance of each of these factors can be best illustrated using interview comments from participants, principally alison and her supervisor� 7 we depart from grounded theory, however, in that we acknowledge that we have brought a number of prior values, experiences and expectations as practitioners and legal educators to our preliminary conceptual development process� this prior knowledge was used in framing our overall research agenda, although the process of coding and reviewing the data was not driven by specific hypotheses or directions� 8 glaser, g and a l strauss the discovery of grounded theory: strategies for qualitative research� (1967); strauss, a l and j corbin basics of qualitative research: grounded theory procedures and techniques (1990) 9 1. ‘controlled freefall’: acquiring competency and autonomy through controlled exposure to ‘dramatic learning’ events the first group of necessary experiences we describe as ‘controlled freefall’� ‘controlled freefall’ is used to suggest that an effective transition to practice is aided by a work environment that meets the need for competence and autonomy, while exposing new lawyers to ‘dramatic learning events’ within a framework of close mentoring� why ‘controlled freefall’ experiences are a positive influencing factor professional competency is seen to emerge through a balance of autonomy and supervision� we found strong support in the literature for the need to find an appropriate balance between independence and control� self-determination theory, for instance, draws a strong connection between the satisfaction of certain basic psychological needs (principally autonomy and competence) as one means to psychological health and well-being�9 acquiring such a sense of competence and autonomy was seen as crucial to gaining the ‘essential nutriments’ of psychological health�10 we see competency as a baseline professional duty for lawyers� the work that legal professionals do requires the resolution of legal issues, the creative documentation of transactions, the consideration of rapidly changing areas of law, and (at times) the conduct of controversial litigation�11 even routine and repetitive tasks require varying degrees of discretion, challenge, skill and expertise� the new lawyer must gain sufficient competency to begin to meet each of these basic requirements� acceptance by a legal practice of incompetent work can constitute a breach of the practice’s obligations to the court, and to its clients and can lead to disciplinary proceedings against the new lawyer� ‘autonomy’ refers to action characterised by choice rather than by actual independence� ‘autonomy’ in the context of legal practice involves the exercise of judgment or discretion to select the relevant knowledge and appropriate techniques for performing particular legal tasks�12 autonomy does not denote a completely free rein� lawyers will remain subject to their clients’ interests and demands, to instructions from their supervisors, and to external constraints of legality, procedure and shared professional norms� legal practices must provide the necessary ‘autonomy support’ for new lawyers to acquire this capacity�13 such ‘autonomy-support’ involves giving them choice as to how to approach tasks where such scope is feasible, and providing a clear rationale when the choice is limited to ensure their perspective as to how things should be done is at least taken into account�14 9 deci, e l and r m ryan, intrinsic motivation and self-determination in human behavior (1985); deci, e land r m ryan, ‘self-determination theory: a macrotheory of human motivation, development, and health’ (2008) canadian psychology 49(3), 182-185 10 deci and ryan, op cit, 2008, 183� 11 nelson, r l partners with power: the social transformation of the large law firm (1988) 12 engel, g v (1970) ‘professional autonomy and bureaucratic organization’ administrative science quarterly, 15, 12� 13 sheldon k m and l s krieger, ‘understanding the negative effects of legal education on law students: a longitudinal test of self-determination theory’ (2007) personality and social psychology bulletin 33, 883 at 884� 14 this analysis of the self-determination model as applied to law students is taken from hess, g f ‘collaborative course design: not my course, not their course, but our course’ (2008) washburn law journal 47, 367� teaching professionalism in legal clinic – what new practitioners say is important 10 international journal of clinical legal education issue 17 in two longitudinal studies, sheldon and kreiger show that enhanced feelings of autonomy and control are particularly important for the success of law students�15 in the same way, new lawyers will only gain ‘the inner resources to develop and follow’ positive career motivations if their autonomy and competency needs are met: all human beings require regular experiences of autonomy, competency and relatedness to thrive and maximize their positive motivation� in other words, people need to feel that they are good at what they do or at least can become good at it (‘competence’); that they are doing what they choose and want to be doing, that is, what they enjoy or at least believe in (‘autonomy’); and that they are relating meaningfully to others in the process, that is, connecting with the selves of other people (‘relatedness’)�16 the participants in our own project confirmed the importance of supervision which allowed this sense of autonomy and competence to grow� when questioned about this, participants consistently described an apparent symbiotic relationship between: • an exposure to ‘dramatic learning’ events, even those in which they felt as though they were being ‘thrown in at the deep end’, and • a mentoring/supervisory experience which provided a ‘safety net’ to ensure these experiences were generally positive� participants spoke of their development in two parallel ways – increasing their capacity for autonomous practice, whilst being well supervised and supported in their work especially in relation to difficult and unfamiliar tasks� the first twelve months of practice involved finding this balance between excessive hand-holding and unsupervised practice� participants also related incidents of having ‘survived being thrown in at the deep end’ with close mentoring and supervision allowing them to ‘swim rather than sink’� this emergence of a growing sense of autonomy was seen as positive and necessary� one participant said, ‘it’s such a tremendous thing to be able to work independently�’ another felt her autonomy developed as a consequence of receiving direction and feedback about her work: p: i’m a lot more autonomous now� i’ve got this one case that i’m working on which will come up for trial in february which is mine, instead of working with a senior lawyer� i am the lawyer in charge … i: if you’re more autonomous, [your supervisor] doesn’t check your work as often? p: no, she still checks everything� but i suppose there’s a lot less comments back and that’s not necessarily because i am doing it exactly the way she would have done it� she’ll say ‘that’s different but it’s alright; go and do it that way’� at the start [she would have said] ‘this is the way you should do it until you get your feet a bit more’� 15 sheldon, k m and l s krieger, (2004) ‘does legal education have undermining effects on law students? evaluating changes in motivation, values and well-being’ behavioural sciences and the law, 22, 261; sheldon and krieger, op cit�, 2007� see too leah wortham, catherine f� klein & beryl blaustone ‘autonomy-masterypurpose: structuring clinical courses to enhance these critical educational goals’, paper presented at the eighth international journal of clinical legal education / clinical legal education conference, newcastle upon tyne, 8 july 2010� 16 sheldon and krieger, op cit, 2007, 885� 11 effective supervision provided the safety net, even when it appeared to conflict with the new lawyer’s own perceived competence in a particular task� this was recognised particularly when there was a change of supervisor: p: whereas before i got big ticks over everything, now i am actually getting more scrutiny again� i: is that good or bad? p: good, really good� i: but it’s making you feel less competent because you’re getting more things picked up? p: yes, but then i feel like i’m learning more, rather than just flying by the seat of my pants� for most participants, ‘competence’ meant feeling in control� they felt this sooner in relation to tasks like drafting documents or managing general correspondence� these were tasks that could be planned and were not immediately time-critical and so permitted research, review and reflection� in contrast, it was irreversible and ‘on your feet’ tasks, such as giving ad hoc advice or handling unexpected developments in court where they felt less competent and consequentially less autonomous� conversely, exposure to experiences outside their comfort zone caused their sense of autonomy to grow� almost all participants reported instances of ‘dramatic learning events’ within their first 12 months of practice� these experiences often came unexpectedly and forced them to engage in tasks with which they did not feel immediately comfortable� one participant said: getting up [in court] for the first time just for a mention was good� [then] my first appearance in the supreme court was probably a bit of an accelerant ‘cause i actually started to feel a little bit confident after that� … that was a terrific day; i got a real buzz out of that� while these experiences were seen as crucial, they were insufficient to produce significant increases in competency and autonomy on their own� ‘reflective practice’ involving reflective conversations with themselves or with others in the practice was also crucial� these conversations allowed a combined or gradual balancing of the known, safe and comfortable with exposure to the unknown and unfamiliar� another new lawyer reported the effect of being allowed such exposure: [my supervisor] has tried to give me a variety of work [to] challenge and to stretch me – we’ve had some doozies though where i’ve done the wrong thing [as a result]� this is the combination of experiences we have described as ‘controlled freefall’� the transition to effective practice will be hampered where such an exposure is missing or where it is unsustained after an initial period of development� we observed that where new lawyers had only intermittent exposure to such immersive learning opportunities, they reached a plateau in their development and saw a subsequent decrease in their feelings of competence� this is well-illustrated by a new lawyer interviewed near the end of his transitionary year: i would probably say that there was a more noticeable change in the first six to twelve months when i was practicing, and then [it] becomes more gradual� over the last six months, i would say that, yes, i have improved, but i am comfortable with most of what i am doing now so i don’t really feel like i am learning as much as i was when i first started and everything was new� … i don’t really feel like i’ve learnt that much in the last six months� teaching professionalism in legal clinic – what new practitioners say is important 12 international journal of clinical legal education issue 17 where adequate supervision is also missing, development similarly slips� another participant in a small firm said: it’s rare that any of the other solicitors will look at or know about what i’m doing� so i am not really supervised – they are not really aware whether or not i’m doing well� it wouldn’t really be that obvious to them� our first conclusion from this preliminary analysis is that it is crucial for new lawyers to be given exposure to such dramatic learning experiences if their sense of competence and autonomy is to grow� 2. ‘uncertainty management’: learning to deal with uncertainty about the role of a lawyer, the law itself and dealing with real people displaying real emotions new lawyers quickly made the discovery that uncertainty is a constant in legal practice� their comments showed an increasing awareness that they needed to learn to manage such uncertainty� the uncertainty they face is essentially value neutral, it can be either positive in the sense of providing opportunities for change and strategic advantage, or negative as a source of confusion, alarm or chaos� why ‘uncertainty management’ exposure is a positive influencing factor uncertainty is often treated as something that should be eliminated or conquered� but in a contrasting analysis, smithson provides a more positive view, suggesting that we are often blinded to the positive aspects of uncertainty: readers having difficulty conceiving of positive aspects of uncertainty might wish to consider what freedom, discovery, creativity and opportunity really require, namely uncertainties about what the future will bring so that there are actually choices to be made� no uncertainty, no freedom�17 smithson lists four everyday challenges that by their nature will require an appreciation and an acceptance of the positive aspects of uncertainty: 1� dealing with unforeseen threats and solving problems; 2� benefiting from opportunities for exploration and discovery; 3� crafting good outcomes in a partially learnable world; and 4� dealing intelligently and sociably with other people�18 a mix of these factors provide particular challenges for new lawyers and this is exacerbated as he legal profession gives little overt recognition to the value and risks of uncertainty: [i]n the discipline of law there is no coherent discourse or even conscious or structured consideration of uncertainty – despite the fact that uncertainty is pervasive� … in the case of law, the daily grist of making and interpreting everchanging legal rules provides an endless source of [uncertainty for] practising lawyers 17 smithson, m ‘the many faces and masks of uncertainty’ in gabrielle bammer and michael smithson (eds), uncertainty and risk: multidisciplinary perspective (2008) 13, 18� 18 ibid 20� 13 and legal scholars�19 one exception is the analysis provided by flood who sees managing uncertainty as a central role for lawyers�20 he articulated two sources of such uncertainty – that due to incomplete grasp of knowledge, and that based on the limits of current knowledge itself�21 a comparison he used is doctors-to-be who come to realise that ‘feelings of uncertainty will never depart’ and that at best they must learn to negotiate uncertain situations as their own experience grows�22 the same realisations come later to lawyers-to-be given that ‘the maw of uncertainty where [appellate judicial decisions] are rarely invoked, and where solutions are not always found but often created’ is something they will only really confront once practice begins�23 for our participants their uncertainty arose: 1� where they were not uncertain about the law per se but about dealing more with more fluid interpersonal situations involving their clients or other lawyers, 2� where they were in fact ignorant of the specific law and had to find a means to reassure themselves, their clients and peers about this lack of knowledge,24 and 3� where they knew the law but were uncertain as to its satisfactory application to their client’s particular problem or situation�25 our new lawyers found they needed to manage uncertainty both in resolving open conflicts where uncertainty was already present (in criminal matters, family law conflicts, commercial disputes etc) and in situations where there is no clear likelihood of resolution, but at best a hope of reaching an ‘open ended truce’�26 as salacuse says, ‘the challenge [for lawyers in these situations]…is not just ‘getting to yes’, but staying there’�27 sources of uncertainty based on the interview data, we broke this uncertainty into three main categories: • uncertainty about the lawyer’s role, • about the law itself, and • about the need to deal with ‘real’ people displaying ‘real’ emotions� 19 jones, j ‘certainty as illusion: the nature and purpose of uncertainty in the law’ in gabrielle bammer and michael smithson (eds), uncertainty and risk: multidisciplinary perspective (2008) 269, 269� 20 flood, j (1991) ‘doing business: the management of uncertainty in lawyers’ work ‘ law & society review 25(1): 41� flood draws on notions of uncertainty management developed by fox who examined the training of doctors for practice, see renee fox, ‘training for uncertainty’ in robert k� merton et al (eds) the student-physician: introductory studies in the sociology of medical education (1957)� 21 fox, op cit, 208-9� 22 flood, op cit, 43� 23 ibid, 44� 24 ibid, 66 gives the example of lawyers in a us firm being uncertain as to just what letters of guarantee used in the uk entailed (the us legal system had no such equivalent)� they overcame their uncertainty by showing their clients a dummy letter which they had patched together from extracts contained in a series of reported cases� 25 ibid, 44� 26 ibid, 69� 27 salacuse, j ‘renegotiations in international business’ (1988) negotiation journal 4, 347 at 347� teaching professionalism in legal clinic – what new practitioners say is important 14 international journal of clinical legal education issue 17 new lawyers found the habit of constantly asking questions and waiting for further information to emerge was one strategy by which to confront the uncertainty which arose in these situations� when they felt less certain in ‘controlled’ situations, such as court work they were hampered because they had less time for reflection� alison recognised this� she expressed anxiety about her performance in an urgent court application but also realised: i absolutely learnt a lot� i didn’t even know how to talk to a registrar before then, what do i call you even, how much am i supposed to say to you, am i allowed to say [that the other party’s] a jerk, how formal do i be? what’s prejudicial and i am not allowed to say it? i just didn’t know what i was doing, i had to guess and after that i thought, well, if i can handle that then, no worries� ideally, the practice in which new lawyers are based will provide them with opportunities to address these feelings of uncertainty through adequate mentoring and preparation� one supervising partner was alert to this: they don’t get sent down to the court, without [preparation]� before [x] went to court, we would practice� i would throw things at her which i thought the magistrate was going to ask her to make sure that she had the answers� she might say ‘i’ve got to do [some type of matter] in court today’, and i would say ‘okay, let’s sit down and do it”� law students may find themselves well trained to think in terms of applying the law to concrete, well-defined problems (to ‘pick out the issues from the facts, apply the law, and come to a conclusion’) but much less prepared to deal with potential uncertainties, particularly those produced by the emotional aspects of practice� as maharg and maughan contend the ‘academic stage is grounded upon technical rationality [which effectively] engineers out the affective’�28 these ‘affective’ aspects involve the emotional and interpersonal aspects of practice which constitute an underlying element to most legal activities� technical rationality may remain a critical part of legal practice but new lawyers must also learn to deal with the non-rational aspects� in this sense new lawyers need to learn to live with and adjust to the unknown� for beginning lawyers the strength of the emotions involved may come as a surprise� alison said: i entered into my law degree with the ambition of working in [an area of litigation] and i didn’t have many illusions� i suppose the only real thing i wasn’t expecting was the terror of the court work…i wasn’t expecting it to be so painful� [also] you think, yep i’m going to go to court and i’m going to win but you don’t think of the poor client along the way who is actually having this traumatic time in their life and having every mistake they have ever made being stripped bare� i didn’t expect the emotion behind it� the emotional aspects are heightened in situations of complexity and where full communication is lacking� the lawyer must be open to the particular challenges this produces� their and their client’s motional reactions will influence their judgment and will create situations in which their rational-and-logical skills are insufficient for the task� learning to manage this becomes a key 28 maharg , p and c maughan, ‘simulation and the affective domain’ (2010), paper presented at alt annual conference: making a difference, clare college cambridge, 29-31 march� 15 additional practice requirement� as suggested, the uncertainty will be heightened when new lawyers need to undertake new and unfamiliar tasks� alison recognised that, while she could handle written ‘paperwork’: court work is another thing entirely, i feel like i have a bit dunce hat on my head and everyone can see it and they will either poke at me or pity me because of it� the [judges] have been really lovely, and i want to take them at face value and decide that they are just nice people, [but] part of me thinks they’re thinking ‘poor little girl doesn’t know what she’s doing’� i feel extremely incompetent� the uncertainty we have described comes from anxiety about their professional development process (how do i become successful in my job? what do people expect of me? what do i need to learn?) as well as insecurity about knowing what their job requires (how do i find out this information? what is my client’s problem?)� there is also an overlap between the requirement to have ‘controlled freefall’ experiences and the need to learn to accept and make use of uncertainty� novel problems and challenging tasks, when supported by appropriate mentoring and supervision, will heighten uncertainty-related exposures� firstly, there are situations where the new lawyer must confront ‘known unknowns’,29 that is tasks and situations in which they know that they lack experience or competence (e�g� appearing in court)� secondly, there will be opportunities to discover ‘unknown knowns’,30 that is where the new lawyer recognises that they are not in fact venturing into completely unchartered territory and that beneath the unfamiliar complexities are more familiar and flexible building blocks� a number of lawyers in our study reacted with joy and pride to moments when they realised they could in fact do something that they initially thought was beyond their reach� thirdly, new lawyers must always confront ‘unknown unknowns’; that is blind spots, surprises and unpredictable twists in the practice of law which will be entirely new to them� the transition to a competent legal professional is marked not only by filling in gaps in knowledge and experience, but also by bringing to awareness what is already known� at the same time, new lawyers find they must remain comfortably alert to situations in which there can never be any certainty� it is in such situations that we concluded that new lawyers must learn to manage and make use of the effects of uncertainty in their practice as part of their growing sense of professional identity� 3. ‘value match’: finding a comfortable value accommodation between one’s own values and those modelled and practised by their practice new lawyers consistently reported the need to be comfortable with the professional values modelled in their practice and to find a satisfactory balance between their own values and those practised by their colleagues� why finding a ‘value match’ is a positive influencing factor the notion of ‘values’ has an obviously wide meaning� it can refer to personal values and the 29 bammer, g and m smithson, et al� the nature of uncertainty in uncertainty and risk: multidisciplinary perspectives� g� bammer and m� smithson (eds)� (2008), 289� 30 ibid� teaching professionalism in legal clinic – what new practitioners say is important 16 international journal of clinical legal education issue 17 need for the new lawyer to feel their personal values are aligned with those of the practice� our particular focus is limited more to shared ‘professional’ values, in the sense of a shared ‘concern’ with professional responsibility�31 the new lawyer will develop their own sense of this responsibility as they become more accustomed to practice� they will begin to develop their own ‘ethical compass’ to guide their professional behaviour� this compass will of course be refined and calibrated by the practice in which they work� the ‘version’ of professional responsibility articulated by the practice will reflect its own particular circumstances in terms of its history and its practitioners’ interests,32 the type of legal work they perform, its size and location, and the particular characteristics of its clientele�33 it is in the intersection between these two that the new lawyer needs to find a comfortable match or at least an acceptable accommodation� the practice’s sense of professional responsibility will be reflected in its ‘ethical infrastructure’ – its stated policies and procedures and its unstated customs, work and management practices�34 these influences will provide direct and indirect incentives and disincentives to encourage the practice’s new lawyers to act and behave in certain ways�35 their own behaviour will be subtly altered to adopt these shared values, attitudes and customs�36 in the process of developing and refining their own ethical compass, new lawyers may need to accommodate an underlying desire to make a contribution to the community, to contribute to what hyams calls ‘the interests of a substantive social value’�37 their practice may give them scope to do this, or it may frustrate their attempts to contribute to social justice�38 such frustration can cause the new lawyer ‘a considerable level of disquiet’�39 the championing of ‘truth and justice’ by law schools may have fostered a career orientation towards an altruism, and it may not be accommodated to the reality of practice�40 even new lawyers practising in areas with a conscious 31 sullivan et al, op cit, observation 3� 32 nelson, r l partners with power: the social transformation of the large law firm (1988)� 33 this is illustrated vividly in research undertaken by winter of mid-tier personal injury firm in sydney, new south wales with ‘with strong catholic foundations and an established reputation for personal client contact and service’� see winter, r (2010) ‘the principled legal firm: insights into the professional ideas and ethical values of partners and lawyers’ journal of business ethics, forthcoming, 4 34 see chambliss, e and d b wilkins, ‘promoting effective ethical infrastructure in large law firms: a call for research and reporting’ (2002) hofstra law review 30, 691 and parker, c, a evans, l haller, s le mire and r mortensen (2008) ‘the ethical infrastructure of legal practice in larger law firms: values, policy and behaviour’� university of new south wales law journal, 3 (1)�158-188� 35 the queensland legal services commissioner has an ‘ethical culture check’ which practices can use to assess their firm’s ethical infrastructure� see the qlsc website http://www�lsc�qld�gov�au/537�htm 36 briton, j (legal services commissioner, queensland), (2008) ‘incorporated legal practices: dragging the regulation of the legal profession into the modern era’ paper presented at the 3rd international legal ethics conference, gold coast, 13-16 july � 37 hyams, r (2008) ‘on teaching students to ‘act like a lawyer’: what sort of lawyer?’ international journal of clinical legal education 13, 21 38 simon,w h the practice of justice (1998), 1� 39 moorhead, r and f boyle, ‘quality of life and trainee solicitors: a survey’ (1995) international journal of the legal profession 2, 217, 218 40 evans, a and j palermo, ‘australian law students’ perceptions of their values: interim results in the first year – 2001 – of a three-year empirical assessment’ (2002) legal ethics 5, 103� see too seligman et al� ‘why lawyers are unhappy’ (2005) http://www�austlii�edu�au/au/journals/deakinlrev/2005/4�html and schlitz, p j (1999) ‘on being a happy, healthy and ethical member of an unhappy, unhealthy and unethical profession’� vanderbilt law review 52, 871 17 public service orientation (such as legal aid or community justice centres) may be disappointed when they find that they are at times forced to act as little more than ‘agents of the state … rationing justice’, rather than directly meeting social needs�41 new lawyers may of course find other means to express this commitment� some of our participants said that where their paid work did not provide it they looked to satisfy this instead through pro bono work� alison said: i do volunteer work [every week], which i love� [the pro bono practice] has more clearly articulated where they’re going, they put out what their goals were and their purpose statement and it was something like ‘to help people using your resources and compassion’ and i saw it and thought that’s what i want and that’s fantastic and excites me� alison had expressed early disquiet about whether she could find a convergence between her own values and those modelled by her practice i am trying to figure out whether you can be ruthless and ethical or whether they are two separate things� yes, [the practice partners] encourage you to be ethical by the letter of the law, [but] i have experienced instances where i was treated in a way which i felt was unethical, in a holistic way, or i was asked to treat somebody else that way and refused and felt the ire of [the partners] because i refused to do it� when interviewed six months later she was even more convinced that the value match she had tried to accommodate was not working: i struggle with it [the way the firm operates], this is the area that i find problematic� i think it’s meant to sound clever but [the way the firm operates] comes across as cunning� it feels manipulative and dishonest, even though, i am sure that’s not the intention� it’s probably what my goal [should be, that is being] more strategic about how i handle a case, it just doesn’t sound it, that’s all� and it doesn’t feel it� she subsequently left the practice� when interviewed later she was more explicit about the source of her discomfort: [t]o me it speaks to the culture of the firm, the direction that they’re taking, the direction that they’re willing to take, the actions that they’re willing to take to get ahead, and i don’t want to have a part of that� but most other lawyers had achieved a satisfactory value match� one said: i think i fit in quite well� i’ve got friendships and relationships here� i’ve got a commitment to access to justice… but i think it’s good that we’re all here, we’re all on the same page, it’s about access to justice, it’s not about money� another said: i want to be an ethical lawyer, money isn’t everything and [they] agree – i’m not permitted to take short cuts� 41 sommerlad, h ‘the implementation of quality initiatives and the new public management in the legal aid sector in england and wales’ (1999) international journal of the legal profession 6, 311 teaching professionalism in legal clinic – what new practitioners say is important 18 international journal of clinical legal education issue 17 this is our third tentative conclusion – that new lawyers need to be able to develop their own sense of professional responsibility and to find a satisfactory match between their own values and those modelled in their practice� how cle programs can assist in developing legal professionalism it is these three factors (balancing autonomy and supervision, managing uncertainty and finding a value accommodation) which were seen as important in developing a professional identity� participation in legal clinic can provide a much earlier exposure to these experiences� our preliminary findings have caused us to reflect more critically on the three clinical programs in which we are directly or indirectly involved: • a youth law clinic, operating from the youth law centre in partnership with both australian capital territory (act) legal aid and a national legal firm; • a community law clinical program, operating in partnership with the act welfare rights & legal centre (a community justice centre); and • a legal aid clinic operating in partnership with act legal aid� these programs are ‘live client’ clinics and so our focus has been mainly on the scope for exposure to such experiences offered by these programs� but we see an important role for other forms of clinic, particularly for simulation clinics as important means to provide similar exposure� legal clinics offer students a range of opportunities dependent upon the work the clinic undertakes, the experience and ability of individual students, the balance it strikes between student learning and client care, the needs of the community the clinic serves, the resources available and the attitude of the legal community in which the clinic operates� each program affords different opportunities to teach and model approaches conducive to learning professionalism� what contribution can clinic make to developing competence and autonomy? as we have detailed, participants spoke of the benefits of autonomous practice supported and supervised by effective mentoring� however ‘in a clinical setting, the concept of autonomy [which makes the presumption of] law graduates being able to work independently and be self-directed in tackling and completing tasks without direction or supervision’ faces particular challenges�’42 one is the need to ensure client care� another is the need to overcome the learned dispassionate analysis, demeanour of non-involvement and neutrality which law students may bring with them as a consequence of their legal studies background� 43 these challenges can be overcome in various ways, most notably through clinicians ‘being less directional in the approach to problem solving, by encouraging initiative and showing that the tasks students are undertaking are valued�’44 this may simply be through ‘answer[ing] a question 42 hyams, r (2008) ‘on teaching students to ‘act like a lawyer’: what sort of lawyer?’ international journal of clinical legal education 13, 21, 26 43 maharg, p transforming legal education, learning and teaching the law in the early twenty first century (2007),222 44 hyams op cit teaching professionalism in legal clinic – what new practitioners say is important 19 with a question’, 45 in a way that encourages students to suggest their own solutions and learn for themselves� as kerrigan highlights, clinics can offer unique opportunities for exposure to ‘disorienting dilemmas’ and these are very similar to the dramatic learning events we have discussed� such dilemmas can start students on the path of self evaluation and lead to increases in their competence and confidence� kerrigan gives as an example a client interview that goes ‘horribly wrong’, and where the student’s sense of failure provides the ‘disorienting dilemma’ which can lead to a critique by the student and colleagues, not just of that interview, but of the way students communicate with clients and others about the law�46 similar dramatic leaps can come from experiencing a supervised court appearance (where the jurisdiction allows it), conducting a solo client interview or taking responsibility for preparing particular parts of a client’s larger matter� the benefit of this early exposure is to allow considerations of the exercise of good judgment to be part of student’s development of a professional identity� hyams refers to such judgment as an ‘elusive quality’ which is difficult to teach�47 he suggests that one starting point may be to encourage students to take a holistic approach to their clients’ problems and in the process consciously note and evaluate the factors that are influencing their own judgment� this approach can foster the ‘potential to analyse critically rather than merely reproduce the discourse of professionalism’ and so begin to develop a personal professional identity�48 what contribution can clinic make to dealing with uncertainty? as we have detailed, participants reported learning to manage uncertainties similar in many respects to those faced by students in clinic� clinic has a significant role to play in giving students the skills and confidence to deal with uncertainty� contact with ‘real’ clients with ‘real’ problems can enrich student learning by highlighting that there are uncertainties over which the student has little or no control� duncan says this ‘realness’ of practice produces much closer attention: the motivating effect of taking on a real case is wonderful to see� i have seen students whose application in classes was poor putting vast amounts of work into preparing for their tribunal case, and every hour of work provides an hour with learning potential�49 the tools of reflection and collaboration can be successfully deployed to make students more comfortable with such aspects of uncertainty� clinicians can facilitate collaborative reflection to encourage students to discuss the uncertainties they confront and reassure them that others are confronting similar concerns� reflection can foster and encourage students to critically consider contextual and systemic issues� reflection can take the form of spontaneous, informal, ‘taking the teaching moment’ discussions, as well as being embedded in a more formal learning structure� collaboration with other students can make the most of these informal learning opportunities, as 45 macfarlane, a and p mckeown, ‘clinical practice:10 lessons for new clinicians’ (2008) international journal of clinical legal education 13, 104 46 kerrigan, k (2007) ‘how do you feel about this client? a commentary on the clinical model as a vehicle for teaching ethics to law students’, international journal of clinical legal education 24 47 hyams, op cit� 48 maharg, op cit, 191 49 duncan, n (2005) ‘ethical practice and clinical legal education’ international journal of clinical legal education 7,11 20 international journal of clinical legal education issue 17 students give each other feedback and share their experiences� clinic gives students the opportunity to also recognise the limitations of the law in the context of human problems� students conducting client interviews may find that problems are often emergent; with sometimes both the student and the client not know the full issues until they are worked through – with issues continuing to emerge during the interview� this realisation requires flexibility on the part of the student and increased preparedness to keep asking questions� as a supervisor explained about our recently graduated lawyers: the thing they’ll struggle with is [that] they think that most things are definitive, that there is a solution� and that that solution is to be found either by going through a text or going through a case, and it’s not so� noone and colleagues note that clinicians themselves can operate as role models for students�50 the clinician can model client interviews to give students the opportunity to see them deal directly with uncertainty� students can learn that saying to a client ‘i don’t know but i can find it out’ is a legitimate way of dealing with content uncertainty� students lacking confidence in their own capacity to deal with client emotions can see the approach a clinical teacher takes to deal with such matters� a clinical program can also provide opportunities to explore various paradigms of ‘lawyering’, such as those identified by parker (adversarial advocate, responsible lawyer, moral activism and ethics of care)�51 clinic gives students the chance to reflect about where they fit in these paradigms and consider what they think makes an ethical practitioner� being aware that their behaviour as ‘role models’ is also being observed requires clinicians themselves to be more explicit about the role they are adopting and the type of lawyering they are displaying�52 what contribution can clinic make to finding a value accommodation? as we have detailed, participants spoke of the need to find for themselves a practice which did not pressure them to suppress their values but allowed them to cultivate and develop their own ethical compass� we agree with hyams that ‘learning by osmosis’ or ‘on the run’ is no way to learn or acquire a sense of professionalism�53 expecting that ethical learning will naturally occur simply through exposure to real or realistic cases is misguided�54 what is required instead is a much ‘broader and deeper engagement with what it means to be a lawyer and the moral attitudes, decisions and outcomes implicit in legal practice’�55 a well structured clinical exposure provides a pre-practice means to do this� 50 noone, m a, dickson j� & curran e� (2005) ‘pushing the boundaries or preserving the status quo? designing clinical programs to teach law students a deep understanding of ethical practice’ international journal of clinical legal education 8,104 51 parker, c ‘a critical morality for lawyers: four approaches to lawyers’ ethics’ (2004) monash university law review 30,49-74� 52 hyams, op cit, 24; noone et al, op cit,106 53 hyams, op cit, 29 54 kerrigan, op cit, 7 55 kerrigan, op cit� 21 teaching professionalism in legal clinic – what new practitioners say is important clinic plays an important role in engaging students in discursive discussion about the sort of lawyer they aspire to be, and where they see themselves fitting into the profession� duncan argues that it is important that students are exposed to at least a simulation of the pressures of legal practice ‘in an environment in which it is possible to explore the problems in principle…in order to provide them with a sound foundation in values which will strengthen their ability to deal with the vicissitudes of practice’�56 this is a theme also echoed by noone and her colleagues: the contest of views about what is ethical legal practice and the different lawyering paradigms provides fertile ground for debate and growth amongst students to which clinical supervisors can contribute with their blend of practice, academic rigour and reflection� in this way students begin to develop a deep understanding of ethical practice�57 discussing professional values in a clinical setting can assist students to begin to identify their own professional sense, and so be better able to assess in the future whether a particular practice will suit their professional identity� pepper58 stresses the importance of giving scope to students’ intuition in developing their ethical judgment� extrapolating to a clinical situation, students need to be encouraged to ask themselves ‘is this the right thing to do? is there some perspective from which it is the wrong thing to do? will it harm people who do not deserve to be harmed? is it dishonest, even though not unlawful?’�59 the opportunity to consider such questions and then have one’s judgment exposed to discursive examination can provide invaluable preparation for acquiring an ethical intuition� for many, it may seem to be asking too much of a clinical program that it play all these roles, particularly given the relatively limited time most students will spend in such a program�60 but adding engagements in simulation clinics can extend the valuable exposure to the types of experiences our new lawyers have highlighted�61 conclusion participants reported that a practice which allowed them to find a suitable balance between autonomy and supervision, which helped them to recognise and deal with the uncertainties of practice and which allowed them to find a comfortable value accommodation positively aided their development as professionals� an appropriate clinical experience can assist law students to be ready for these experiences long before practice� 56 duncan, op cit, 17 57 noonan et al, op cit, 111 58 pepper, s l how to do the right thing: a primer on ethics and moral vision (2010)� university of denver sturm college of law legal studies research paper no� 10-01� available at ssrn: http://ssrn�com/ abstract=1542170, accessed 30 august 2010 59 pepper, op�cit� 60 in australia at least, though this is less likely to be the case in the us for example� 61 we have now implemented such an approach in the graduate diploma in legal practice at the australian national university based on and adapted from the program developed by paul maharg at the university of strathclyde� the program of practical legal training exposes students to the experience of what it is to be a professional and what it means to be an ethical practitioner well before their admission to practice� 22 international journal of clinical legal education issue 17 book review research methods in human rights: a handbook isbn: 978 1 78536 778 6 price: £150 (web £135) whilst undoubtedly rooted legal scholarship, human rights, as a field, continues to undergo significant diversification in terms of the methodological techniques used to generate research. research methods in human rights: a handbook provides researchers with insight into the various approaches that have emerged, along with the relative benefits and drawbacks of each. edited by bård a. andreassen, hans-otto sano and siobhán mcinerney-lankford, the volume is available from edward elgar publishing. the editors have compiled an interesting and diverse set of contributions, drawing from the growing body of human rights research. when considered as a publication, the handbook serves to advocate for more a critical approach within the field, as well as serving to guide the researcher through the various methodological tools that have proliferated into human rights research. in light of the many challenges characterising the global environment, the requirement for interdisciplinary collaboration within the field of human rights should be increasingly clear; the publication is effective in providing the researcher with a critical discussion of the various approaches available, and accordingly its utility will be clear to researchers from both legal and social science backgrounds. several of chapters themselves provide the reader with clear and comprehensive instructions as to how to go about utilising various methodological techniques, as well as suggesting areas where they may be best applied. phd and masters students may find the book to be particularly useful in developing effective methods for analysing human rights problems. the book itself is divided into 2 major sections, with chapters 2 to 7 covering research methods that may be procured from within existing disciplines, and chapters 8 to 18 covering interdisciplinary methods. the first chapter represents an introduction, doing an effective job of outlining the historical developments in the field, in addition to outlining the reasons behind the lack of methodological development within human rights. the chapter goes on to clarify the conceptual blind spots and shortcomings that have characterised the field in the past as well as briefly summarising the contents of the book. the second chapter by martin scheinin outlines the central importance of interpretation within human rights law, whist concurrently acknowledging the difficulties that exist in developing a sufficiently rigorous methodology. whilst ultimately advocating for a more scientific approach to international legal scholarship, the chapter does not shy away from acknowledging the difficulties in accomplishing effective interpretation of human rights law. the chapter refers to treaties as well as customary law, discussing how interpretation relates to each. considerations include the means of interpretation, the sources of international law, and the various barriers to a scientific method of interpretation. chapter 3, authored by mcinerney-lankford provides a frank assessment of the methodological weaknesses prevailing in the otherwise solid body of human rights research. much of the chapter approaches the lack of a critical approach inherent in much human rights scholarship, and the failure for researchers to be sufficiently critical of the norms foundational to human rights law. the chapter also consider the lack of emphasis on impact. the chapter suggests legal scholars approaching human rights should proceed with fewer assumptions and more readily consider the use of supplemental information and methods in order to better understand the impact and uptake of the norms they approach. chapter 4 introduces hermeneutics as a methodological approach to human rights, considering the interpretation of both legal text as well as human rights treaties the chapter provides a compelling description of how the approach of hermeneutics can provide a sufficiently critical means to engage with human rights problems. chapters 5 to 7 explore the relevance of a range of other disciplines and research methods to human rights. chapter 5 for instance documents and discusses the exchange between economics and human rights scholarship. the chapter explains that there exists a solid basis for meaningful collaboration between the approaches, observing a convergence in terms of methods in recent published works; anderson also notes how many methodological tools that are used in economics can be readily adapted to the analysis of human rights. in the same vein, chapters 6 and 7 go on to discuss the relevance of historical and ethnographic techniques to the study of human rights respectively. part 2 deals with cross-disciplinary issues applicable to human rights research, including discussion of research ethics, the use of comparative methodologies and a range of issues surrounding conducting quantitative and qualitative research. in addition to identifying these key issues, part 2 provides a wealth of practical advice as to how to address methodological problems. the reviewer found georges ulrich’s perspective on research ethics to represent a particularly salient contribution, perhaps being of interest to researchers conducting studies of an empirical or sensitive nature. whilst many of the problems explored in the second part of this book may have long histories outside of human rights research, discussion of their relevance to this expanding area of scholarship represents a key contribution. in summary, the volume sets out to “advance methodological awareness, competence and rigour, and therefore contribute to a greater understanding of the role of human rights in context”. when considered in accordance with these aims, the book certainly achieves its goal, and will serve to not only inform new researchers, but also open up new areas for more established scholars. whilst the price of the book is certainly a factor to consider, this book would represent an effective investment for researchers and institutions considering new approaches to human rights research. christopher j morris phd researcher, northumbria university 283 533533 decongesting prisons in nigeria: the ebsu law clinic model dr amari omaka c1 associate professor of law abstract due to the growing problems of overcrowding and prison congestion in nigeria, the need to conduct this pro bono study became imperative. this study is a needs assessment, evaluation and fact finding of the challenges and access to judges problems of detainees of abakaliki and afikpo federal prisons in ebonyi state nigeria. bearing in mind the un standard minimum rules and other instruments in international law, the project report generally captures the following information: • state of the structure of the prisons • infrastructure at the prisons • facilities at the prisons • welfare of the inmates at the prison • welfare of the prisons staff • access to justice by the inmates and 1 this paper was presented by prof dr amari omaka c at the 8th ijcle conference at northumbria university newcastle upon tyne, england united kingdom july 7, 2010. he carried out this project in liaison with clinicians of ebonyi state university law clinic abakaliki. financial support for the exercise was provided by open society justice initiative (osji). special thanks to the network of university legal aid institutions (nulai) and open society justice initiative (osji) for facilitating and sponsoring this prison project respectively. we appreciate the vice chancellor of ebonyi state university abakaliki, prof. francis idike and ebonyi state university management for giving us the enabling environment to conduct this study. we specially thank the deputy controller of prisons in charge of abakaliki prisons dcp oluwasemire s.i for facilitating our visit to the prisons. we also thank the deputy controller afikpo prisons for allowing then students access to the prisons for this work, despite several challenges and bottlenecks. we also remain grateful to the chief judge of ebonyi state, justice aloy nwankwo, the attorney general of ebonyi state, barr. jossy eze among numerous others that participated in imbibing ethical values to our students before entry to the prisons for the pro bono work. 534 international journal of clinical legal education issue 20 • other ancillary issues such as children in prison, over age in prison, nature of offences etc. in carrying out this study, empirical method of data collection and analysis was used. the two prisons in the state were visited and 250 prisoners responded to both the questionnaire and direct interview. some staff of the nigerian prison service and warders were also interviewed. the findings of this study were significant and highly revealing. the study specifically highlights certain issues of concern and proffers recommendations to address identified challenges. the report would serve as a national and international reference material as well as a programmatic tool for working out specific programmes and interventions to address the myriad problems facing the nigerian prison system specifically, and the criminal justice administration system in nigeria generally. the findings in this project are significant, the recommendations rich, we enjoin the government and development partners to implement them. outline: the paper comprises five parts, with the following outline: part i 1.1 background of the study 1.2 statement of the problem 1.3 project objectives 1.4 delimitation of the area of the project 1.5 significance of the project / expected outcome 1.6 limitations / challenges of the prison project part 2 research methodology 2.1 selecting sample population 2.2 research design 2.3 sample design 2.4 instruments of data collection 2.5 modus operandi part 3 presentation, analysis of data and findings 3.1 introduction 3.2 data presentation from abakaliki prison respondents 3.3 data presentation from afikpo prisons respondents 534 535 part 4 summary of findings part 5 recommendations and conclusion 5.1 recommendations 5.2 conclusion appendix a: questionnaire part i 1. 0 introduction the abakaliki and afikpo prison project is a programme designed to ascertain the number of inmates at the prison. those that are awaiting trial, those that are serving their sentence and those that are just remanded there by the magistrate or such like courts that have no jurisdiction on that particular matter. in addition, this project aims at knowing the welfare of the inmates in abakaliki prisons. this welfare includes their feeding, health condition, educational support. to know whom amongst them needs a lawyer. this study became imperative because, from the available literature, the prison service in nigeria has for many years been faced with many challenges. this is as a result of many factors, including overcrowding, inefficient criminal justice system, inadequate accommodation for both inmates and prison officers, high number of awaiting trial cases, obsolete/dilapidated infrastructural facilities. others include; lack of recreational and vocational facilities, poor feeding for inmates, etc. the study was conducted with a view to collating data on these and bringing such to the attention of government and development partners in order to reverse the trend. 1.1 background of the study from available statistics,2 there are 227 prisons in nigeria, spread across the six geo–political zones of the country. available literature3 shows that these prisons, most of which were built by the colonial government, harbour more untried inmates than those properly convicted, some of which include children and women. the facilities are dilapidated and most of the inmates have no access to justice, and the facilities are in a state of decay.4 the prisons’ congestion is a serious affront 2 however 133 prisons was reported as visited during the national prison audit report 2007-2008, conducted by the national human rights commission in partnership with undp, norad et al 3 nigeria national prison audit report 2007-2008 4 ibid decongesting prisons in nigeria: the ebsu law clinic model 536 international journal of clinical legal education issue 20 to human rights. in pre-trial cases, nationwide, most detainees have no legal representation5, case processing is slow, remand periods are exceeded, charge sheets frequently get lost and many cases lack the necessary evidence to prosecute them, making a mockery of a five-year wait for a trial that can only end in acquittal6. in nigeria, prisons are grossly congested. records7 have it that they are overcrowded to a capacity of as much as 250%. kirikiri maximum prison for instance, built for 956 prisoners is occupied by over 2,600 inmates, the majority of whom are awaiting trial.8 prison overcrowding is a major concern of the nigerian criminal justice system. remand prisoners account for a substantial contribution to the problem of congestion in nigerian prisons.9 a greater part of awaiting trial detainees in the prisons are held under the holding charge10 and many have spent up to ten years awaiting trial11. for a long time, nigerian prisons have been centres of human rights abuses.12 people are detained unlawfully for as long as the police want.13 nevertheless, in spite of the sad fact that prison congestion has become a “national embarrassment”, not much has been known about the issue of prison decongestion in law textbooks in the country. a careful research and perusal of our books have unearthed the sad reality that our libraries do not contain much information about prison decongestion.14 prison congestion can be said to result if the number of prison inmates in a prison yard exceeds the number it is originally meant to accommodate, leading to inconveniences on the inmates as well as difficulty of control on the authorities concerned. prison decongestion thus means the reduction in the amount of inmates.15 reduction of the inmate intakes in prison to the available space becomes necessary if one looks at the inconveniences obtainable, to the inmates, the authority and the public. little wonder, disease spread, violent break up of prisons and general public fear occurs, negating the essence of prison for reformation.16 in a public discourse organised recently by the “detainees and indigent help centre”, resource fellows identified undue delay in criminal trial as one of the causes of prison congestion. this is more so because the cases of awaiting trial detainees are not disposed of in a good time. the forum further observed that where advice is sought from the director of public prosecution, it may take months or even years to obtain because of the bureaucratic bottleneck in the administration of 5 the prison decongestion project in nigeria: an appraisal by mbanefo ifeyinwa. see www.lawfirmsinnigeria.com 6 anon, the poor state of the prisons. www.clearinternational.org downloaded on april 11, 2010 7 the prison decongestion project in nigeria: an appraisal by mbanefo ifeyinwa. see www.lawfirmsinnigeria.com 8 ibid 9 omaka c. a. assessing justice: a challenge to nigerian prison detainees. daily trust, april 4, 2008 10 detention order under the ruling of a magistrate because the magistrate has no jurisdiction to try the case. this is an aberration as there is no law backing this unfortunate judicial tradition. 11 ibid 12 omaka c. a. assessing justice: a challenge to nigerian prison detainees. daily trust, april 4, 2008 13 www.newswatchngr.com op cit 14 the prison decongestion project in nigeria: an appraisal by mbanefo ifeyinwa. see www.lawfirmsinnigeria.com 15 ibid 16 omaka c. a. assessing justice, op cit p.7 537 justice and administration in nigeria.17 furthermore, the resource noted that inadequate number of judges and magistrates to try cases is also one of the causes of congestion of prisons in nigeria. they further observed that a situation where the same judge or magistrate handles both criminal and civil cases is no more acceptable in the developed world because it does not make for rapid dispensation of justice. in addition, the forum noted that vehicles conveying awaiting trial detainees to courts are not enough. added to this as observed by the forum is the constant strike by the judiciary workers thereby keeping detainees in custody for many months without hearing their cases at all18. another factor identified as one of the causes of prison congestion is the centralisation of the management of nigerian prisons.19 another factor leading to congestion of prisons in nigeria is the inadequate number of prisons. it was disclosed at the forum20 discussed above that there are 227 prisons in nigeria, which accommodate over 40,000 inmates. this number is grossly inadequate because if the facilities are inadequate in number and in size, there will be over congestion. in his contribution on the issue of prison congestion, prince olagunsoye oyinola, osun state governor, in the daily sun issue of march 16, 2010 implored the judiciary to evolve ways of tackling cases of those awaiting trial across the nation’s prisons. further, prince oyinlola observed that the problem of prison congestion was caused by the judicial process and awaiting trial syndrome. according to chief bayo ojo, former attorney-general of the federation and minister of justice, there are 45,000 inmates in our prisons out of which 65% are awaiting trial. chief ojo posited that the problem of over congestion was also occasioned by missing case files among other things. in a similar vein, mohammed fawehinmi, son of human rights activist, chief fawehinmi, recently disclosed after his tour of the various prisons in the country that he found about 28,000 awaiting trial inmates (ati) in our prisons across the country. this corroborates the above disclosure made by the former federal attorney-general and minister for justice, chief bayo ojo to members of the house of representatives on october 13, 2005 that there are 25,000 awaiting trial inmates rotting away in various nigerian prisons. one clear deduction from the disturbing revelations of fawehinmi and ojo is that over-congestion in nigerian prisons is caused by ati. in the course of his lecture with final year students of ebonyi state university, abakaliki on 18/01/2010, dr. okpara okpara, human rights lecturer, maintained that the “holding charge” as used by the police to arrest and detain people without charge is also a cause of prison congestion, as well as violation of citizens’ human rights. contributing still to the cause of prison congestion, chief bayo ojo traced over-congestion to long delays in bringing people to trial. these shortcomings notwithstanding, nigeria has not closed its eyes or folded its hands on the problem of congestion as to ameliorate the situation. many propositions, policies and private opinions have been generated, some applied, in a bid to neutralise the menace of this congestion. 17 a non-governmental organisation at the conference hall of the university of lagos on how to decongest the heavily congested nigerian prison. see www.lawfirmsinnigeria.com, op cit 18 ibid 19 peter onu, prison chaos: what went wrong? daily mirror march 6, 2009. note also that the management of the nigeria prisons is placed under the exclusive legislative list and therefore being controlled solely by the federal government by virtue of the constitution of the federal republic of nigeria, 1999. 20 “detainees and indigent help centre”, op cit decongesting prisons in nigeria: the ebsu law clinic model 538 international journal of clinical legal education issue 19 in a recent knee-jerk approach to decongest nigerian prisons, the 36 governors have consented to the execution of condemned prisoners. the governors took the decision after debating the challenges posed by prison congestion at the national economic council (nec) meeting in abuja on april 20th 201021. the decision was sequel to a presentation by the nigerian prison service informing the gathering that the governor’s inability to approve the execution of condemned prisoners, in some cases years after their sentences were passed was partly responsible for prison congestion. the problem of congestion is indeed a major challenge in nigerian prisons, abakaliki and afikpo prisons in ebonyi state are not exceptions. this is a time for action. 1.2 statement of the problem from the above background, it is evident that prison congestion and violation of the fundamental human rights of inmates is a challenge to criminal justice administration in nigeria. preliminary findings in abakaliki prison show that it is operating above built capacity; in addition, both abakaliki and afikpo prisons have more awaiting trial men (atm) than convicts. again, most of the inmates had no legal representation nor access to justice. for example, our preliminary needs assessment findings revealed that 714 inmates were detained in abakaliki prison whose carrying capacity is a maximum of 387. following the need to be part of the federal government of nigeria and development partners, multifaceted approach to prison services and consequent decongestion, we in ebonyi state university law clinic22 decided to make prison projects one of her cardinal projects for 2009/2010. 1.3 project objectives the purpose of this study is not only geared at assisting the inmates of the two federal prisons in the state to access legal service, but also to avail the pivotal law students an opportunity to work and learn with real live clients, viz the ati and those wrongly detained. the objectives of the project specifically: 1. to train the clinical law students on the dos and don’ts in prisons, especially in relation to inmates; 2. to identify the precise legal needs of afikpo and abakaliki prisons’ inmates; 3. to identify the available legal aid facilities presently available to the inmates of the two prisons; 4. to investigate or access the impact of available legal aid, if any, to identify legal needs most imperative to them; 5. to carry out advocacy on the legal aid need of the inmates; 6. to secure bail, and as much as practicable, secure release of the inmates. 21 prison congestion: published 28/04/2010–www.thenationonlineng.net 22 succinctly known as ‘ebsu law clinic’ 539 1.4 delimitation of the area of the project the scope of this project will be restricted to the two available prisons in the ebonyi state, namely: • afikpo, and • abakaliki prisons. incidentally, the areas where the two prisons are located reflect the two political blocs (carved out of abia (afikpo) and enugu (abakaliki) state) that make up the present ebonyi state. the project is mainly a research project and also embodies pro bono legal aid. 1.5 significance of the project / expected outcome it is hoped that this publication would be a useful benchmark and reference point to governments, the united nations agencies, development partners, researchers and relevant stakeholders x-raying the prevailing conditions in prisons across the country with a view to using the data contained here-in as a basis for strategising on necessary interventions. this would help in improving the physical and mental health of officers and inmates and especially achieving the overall goals of imprisonment as a means of reform and rehabilitation while complying with human rights standards. in addition, if the recommendations are implemented: • justice would be more accessible to the detainees/convicts; • there would be proper identification and categorisation of the legal needs of prison inmates; • documentation of the legal needs of prison inmates in ebonyi state would be easy; • there would be better understanding of the legal aid needs of the prison detainees; • the law students would know the role of law clinics in prison projects and be part of the solution through their free legal aid services; • the law students would learn the law by doing, which will ultimately translate to functional and effective law practices by graduates of ebsu the clinic. 1.6 limitations / challenges of the prison project the problems encountered in the course of this work include: 1. the difficulty of embarking on this project together with other demanding academic works; 2. the decline of interest in the project by some prison staff; 3. the absence of official ebsu law clinic bus; 4. institutional/in-house administrative delays, bottlenecks and challenges; 5. the protracted asuu23 strike delayed the projected timing of the project. 23 this acronym means academic staff union of nigerian universities. decongesting prisons in nigeria: the ebsu law clinic model 540 international journal of clinical legal education issue 20 part 2 research methodology 2.1 selecting sample population this research deals with prison decongestion and access to justice. it is not often easy to carry out a study in all the prisons in nigeria. consequently, the abakaliki and afikpo federal prison were selected for study, simply because of accessibility to the two prisons and because they fall within the jurisdiction of ebsu law clinic. not all staff and detainees were interviewed in the two prisons, rather a random sample of the population was selected to be studied. this sample was deemed to be a true and fair representation of the entire population. 2.2 research design the research design to be utilised was field survey.24 the data collection was done through valid and reliable questionnaires administered to the sample population and personal interviews by the researchers with the controller of the two federal prisons involved in the stress area as well as the wealth of literature that exist helped the researchers to conceptualise the area which served as the basis for the formulation of the questionnaire. the questionnaire was designed in such a way that it contains a blend of fixed alternative questions that are meant to specifically limit the responses of the respondents to specific alternatives and an open ended question that offers the respondents opportunities of expressing their opinions. again, personal interviews were used to augment information obtained through questionnaire, and in some cases, to assist those who could not read and write. 2.3 sample design as at the time of this study there were 227 prisons across the country. due to time and financial constraints, this research work was specifically carried out in the two federal prisons located in ebonyi state. in the selected prison, the controllers and the deputy controllers and other principal staff and inmates either responded through questionnaires or were physically interviewed, because of their expert knowledge of the workings of prisons. 2.4 instruments of data collection primary sources of data on the other hand are sources from which raw data can be obtained. data or information that were received from the prison staff and detainees constitute the primary data. the following methods were used in the collection of primary data.25 24 ogbazi, j.n., & okpala, j. (1994). writing research report: guide for researchers in education, the social sciences and humanities. enugu: press time ltd. 25 olaitan, s.o. (1983). likert research style adopted by author while considering factors associated with nonutilisation of hospital services for antenatal care by pregnant women in rural communities of anambra state of nigeria. in o.s. okobiah, a. ali & g.b.i. onuoha (eds.), occasional publication of institute of education, university of nigeria, nsukka (no. 4, 65-70). nsukka: institute of education, university of nigeria. 541 i. questionnaire survey – a well structured epdafeq was designed.26 the questionnaire survey was the major method of data collection. it was also a basis for opinion assessment. questions contained in the questionnaire were intended to ascertain the condition of prisoners and access to justice. to achieve the reliability of the data, the questionnaires were administered on the prisoners, together with oral interview. as the prisoners’ answer in the interview, their responses in most cases were recorded in the questionnaire. others interviewed were persons in key positions namely, the controller, the deputy controller and principal staff of the prisons in the stress areas. ii. interviews – in addition to questionnaires, interviews were used to collect data. this proved effective as it helped the researchers in determining in time the actual scope of the topic that was being studied and the identification of contemporary problems in the management of prisons and accessibility of justice. iii. observation – during the research process, the researchers examined some documents that relate to the area of study, and the physical condition of the prisons and detainees. in addition, the researchers found valuable unpublished lectures delivered by individuals with adequate knowledge of the topic. these no doubt are very good sources of secondary data collection. although this research work is a field one which involves extensive use of communication, observation and interviews, comprehensive review of related literature was made. this derives from primary and secondary sources, communication and observation were based on primary sources while review of related literature was based on secondary source literature which was obtained from various libraries. in order to collect accurate and reliable data, we extensively visited the abakaliki and afikpo federal prisons all in ebonyi state, nigeria. 2.5 modus operandi before the commencement of the research, a pre-field training workshop on the code of conduct in prisons was organised for the researcher and the clinicians. resource persons included inter alia prison officials and other experts. in addition, advocacy visits were arranged with stakeholders like nigerian bar association, the attorney general of ebonyi state and the prison authorities. all activities of the clinicians were under the supervision of qualified clinical lawyers. part 3 presentation and analysis of data 3.1 introduction during the field work, 227 questionnaires titled “epdafepq” were distributed and we successfully retrieved information from 222 respondents, while 4 questionnaires were not recovered generally. two were lost at abakaliki prisons. similarly, 65 questionnaires were given to 65 respondents, 63 were recovered, while two were lost. hence, 98.5% recovery rate was achieved. we consider the retrieval rate quite impressive. this result in collection of data was made possible by the on-the26 similarly see ogbazi, j.n., & okpala, j. (1994). writing research report: guide for researchers in education, the social sciences and humanities. enugu: press time ltd. decongesting prisons in nigeria: the ebsu law clinic model 542 international journal of clinical legal education issue 20 spot distribution and collection after assisting the respondents in completing the forms. tables one to 14 are a presentation of the data from both abakaliki and afikpo prisons. while tables 1-7 relate to abakaliki prisons, tables 8-14 represent findings from afikpo prisons. 3.2 abakaliki prison – 159 respondents table 1: bio-data of detainees sex age marital status men women children below 18 above 18 married single 139 20 4 155 33 126 the above data in table 1 shows that there are more men than women in abakaliki prisons. the data in table one reveals as follows: 87.4% of men and 12.6% women; children 2.5% and adults of 18 years and above 97.5%. it also shows that 20.8% are married while 79.2% are single in abakaliki prisons. table 2: types of detainees and nature of offences nature of crime rape armed robbery cultism stealing breaking and entry arson murder kidnapping assault and battery 6 23 7 33 43 4 10 3 30 table 2 reveals the following percentages on the nature of crime: rape 3.8%, armed robbery 14.5%, cultism 4.4%, stealing – 20.8%, breaking and entry – 27%, arson – 2.5%, murder – 6.3%, kidnapping – 1.8% and assault and battery – 18.9%. table 3: nature of detention, legal representation and access to justice nature of detention number of years detained number with legal representation delay in representation/ recidivists atm convicted undergoing trial below one year above one year i have a lawyer i don’t have a lawyer there is speedy trial there is delayed trial very few many 132 20 7 3 156 29 130 1 158 39 120 table 3 show the following analysis: there are 83% awaiting trial men (atm), those properly tried and convicted – 12.6%, those undergoing trial but detained without conviction – 4.4%, detainees below 1 year – 1.9%, those detained for over 1 year without due process of trial – 98.1%, those with legal representation 18.2%, those without legal representation – 81.8%, respondents who believe that there is delayed prosecution – 99.4%, those who 543 responded that there is no speedy prosecution – 0.6%, those who say that there are few recidivists – 24.5% and those who believe that there are many recidivists in detention – 75.5%. table 4: facilities available – sanitary, toiletry and environmental sou rce of w ater t oilet facilities c lean lin ess of toilet u se of toiletry bed d in g k itch en con d ition c lean lin ess of th e bed d in gs c lean lin ess of th e en viron m en t g o o d b ad w ater clo set p it b u ck et c lean n o t clean t o iletries av ailab le n o t av ailab le f o am m at c lean n o t clean d o n o t k n o w clean n o t clean t id y u n tid y 60 99 159 nil nil 20 139 30 129 121 38 21 128 10 45 114 102 57 table 4 shows the following from those interviewed: good water supply – 37.7%, bad water supply – 62.3%; use of water closet – 100%, use of pit toilet – 0%, use of bucket toilet – 0%; the toilets are clean – 12.6%, toilets are messy – 87.4%; toiletries are always available – 18.9%, toiletries not available – 81.1%; i sleep on foam – 76.1%, i sleep on mat – 23.9%; the beddings are clean – 28-3%, the beddings are not clean – 71.7%; the kitchen is clean – 13.2%, the kitchen is not clean – 80.5%, no idea whether clean or not clean – 6.3%; cleanliness of the prison environment – 64.2%, there is untidy environment – 35.8%. table 5: facilities available – power and healthcare facilities l au n d ry / u n ifo rm s p o w er h ealth -care clin ic a d eq u ate d o cto rs an d n u rses d ru gs c lean lin ess o f h ealth care facility g o o d b ad p h c n s tan d b y gen erato r c an d le an d lan tern y es n o a d eq u ate in ad eq u ate a lw ay s av ailab le n o t alw ay s av ailab le c lean n o t clean 77 82 159 nil nil 150 9 69 90 40 119 125 34 table 5 shows the following responses: good laundry and uniforms – 48-4%, bad laundry and uniforms – 51.6%; sole dependence on epileptic power supply – 100%, standby generator – 0%; clinic available – 95%, clinic not available – 5%; there are adequate doctors and nurses – 43.4%, there are inadequate doctors and nurses – 56.6%; availability of drugs – 25.2%, dearth of drugs – 74.8%; clinic and health care facility is clean – 78.6%, filthy health care facility – 21.4%. decongesting prisons in nigeria: the ebsu law clinic model 544 international journal of clinical legal education issue 20 table 6: facilities available – conscience, sporting and recreation f reed om of w orsh ip an d w orsh ip facilities p laces of w orsh ip a vailability of sch ools an d ed u cation al a vailability of recreation facilities sp ortin g facility available y es n o c h ristian s m o slem s trad itio n al a v ailab le n o t av ailab le s u ffi cien t n o t su ffi cien t f o o tb all w eigh tliftin g d raft an d o th ers 147 12 136 23 nil 159 nil 90 69 159 159 107 on conscience, sports and recreation, table 6 shows the following line of response: freedom of worship – 92.5%, no freedom of worship – 7-5%; christians place of worship – 85.5%, availability of islamic place of worship – 14.5%, traditional place of worship – 0%; availability of school in the prison – 100% and none said that there is no school. there is sufficiency of recreational facilities – 56.6%, insufficiency of recreational facilities – 43.4%; availability of football facility – 100%, availability of weight lifting facility – 100%; draft, chess, monopoly, scrabble and other indoors facility – 67.3%, no other sporting availability – 32.7%. table 7: availability of vocational facilities a v ailab ility o f v o catio n al facilities c arp en try w o rk sh o p         t ailo rin g w o rk sh o p        w eld in g w o rk sh o p          b arb in g w o rk sh o p         e lectrical w o rk sh o p       c o m p u tin g s h o e m ak in g adequate not adequate 159 159 159 159 159 159 159 54 105 table 7 shows that 66% of the respondents agree that there are adequate vocational facility while 34% said that there are not enough vocational facility. 100% of the respondents said that the following workshops are available in abakaliki prisons – carpentry, tailoring, barbing, welding, electrical, computing and shoe making workshops. 545 3.3 afikpo prisons 63 respondents table 8: bio-data of detainees sex age marital status men women children below 18 above 18 married single 52 11 4 59 18 45 table 8 shows that following in relation to afikpo prisons: men – 82.5%, women – 17.5%; children – 6.3%, adults above 18 years – 93.7%; married prison inmates – 28.6%, single – 71.4%. table 9: types of detainees and nature of offences nature of crime rape armed robbery cultism stealing breaking and entry arson murder kidnapping assault and battery 2 5 2 21 13 4 4 3 9 on nature and character of offences upon which detention is based, table 9 reveal as follows: rape – 3.2%, armed robbery – 7.9%, cultism – 3.2%, stealing – 33.3%, breaking and entry – 20.6%, arson – 6.3%, murder – 6.3%, kidnapping – 4.8%, assault and battery – 14.3%. table 10: nature of detention, legal representation and access to justice nature of detention number of years detained number with legal representation delay in representation/ recidivists atm convicted undergoing trial below one year above one year i have a lawyer i don’t have a lawyer there is speedy trial there is delayed trial very few many 48 8 7 3 60 7 56 1 62 30 33 on access to justice and legal representation table 10 shows as follows: those awaiting trial and not convicted – 76.2%, the convicted – 12.7% and those undergoing trial –11.1%. those detained below 1 year – 4.8%. those above 1 year in detention – 95.2%. those with legal representation – 11.1% and those without legal representation – 88.9%. delayed prosecution – 98.4%, speedy prosecution – 1.6%. few recidivists – 24.5% and 75.5% said there are many recidivists in afikpo prison. decongesting prisons in nigeria: the ebsu law clinic model 546 international journal of clinical legal education issue 20 table 11: facilities available sanitary, toiletry and environmental sou rce of w ater t oilet facilities c lean lin ess of toilet u se of toiletry bed d in g k itch en con d ition c lean lin ess of th e bed d in gs c lean lin ess of th e en viron m en t g o o d b ad w ater clo set p it b u ck et c lean n o t clean t o iletries av ailab le n o t av ailab le f o am m at c lean n o t clean d o n o t k n o w clean n o t clean t id y u n tid y 9 54 59 4 nil 18 45 17 46 50 13 20 40 3 20 43 34 29 table 11 shows the following in relation to sanitary, toiletry and environmental condition of afikpo prison. good water supply – 14.3%. bad water supply – 85.7%. use of water closet lavatory – 93.7%. use of pit toilet – 6.3%. use of bucket toilet – 0%. the toilets are clean – 28.6%. the toilets are unkempt – 71.4%. toiletries are always available – 27%. toiletries not available – 73%. there is foam to sleep on – 79.4%. i sleep on mat or poorly improvised beddings – 20.6%. cleanliness of the beddings – 31.7%. beddings not clean – 68.3%. kitchen is clean – 31.72%. kitchen is not clean – 63.5%. no idea whether kitchen is clean or not – 4.8%. cleanliness of environment – 54% and untidy environment – 46%. table 12: facilities available – power and healthcare facilities l au n d ry / u n ifo rm s p o w er h ealth -care clin ic a d eq u ate d o cto rs an d n u rses d ru gs c lean lin ess o f h ealth care facility g o o d b ad p h c n s tan d b y gen erato r c an d le an d lan tern y es n o a d eq u ate in ad eq u ate a lw ay s av ailab le n o t alw ay s av ailab le c lean n o t clean 32 31 63 nil 63 54 9 10 53 20 43 32 31 table 12 reveals the following in relation to power and healthcare: good laundry and uniforms – 50.8%, bad laundry and uniforms – 49.2%. sole dependence on public epileptic power supply 100%. standby generator – 0%. clinic available – 93% and 7% said no healthcare facility. adequate doctors and nurses – 15.9%. inadequate doctors and nurses – 84.1%. availability of drugs – 31.7%. dearth of drugs – 68.3%. on whether or not clinic is clean, 50.8% said yes, while 49.2% said no. 547 table 13: facilities available – conscience, sporting and recreation f reed om of w orsh ip an d w orsh ip facilities p laces of w orsh ip a vailability of sch ools an d ed u cation al a vailability of recreation facilities sp ortin g facility available y es n o c h ristian s m o slem s trad itio n al a v ailab le n o t av ailab le s u ffi cien t n o t su ffi cien t f o o tb all w eigh tliftin g d raft an d o th ers 57 6 58 3 2 nil 63 25 38 34 15 14 table 13 discloses as follows: there is freedom of worship – 90.5%. no freedom of worship – 9.5%. availability of christian place of worship – 92.1%. availability of islamic place of worship – 4.8%. traditional religion – 3.1%. on availability of schools, 100% said no school, while 0% responded in the positive. are there sufficiency of recreational facilities – 39.7% said yes, while 60.3% said no. on availability of football facility – 50% said yes, availability of weight lifting facility – 20% said yes, draft and others – 20%, while 10% said there are no other sporting facility. table 14: availability of vocational facilities a v ailab ility o f v o catio n al facilities c arp en try w o rk sh o p        t ailo rin g w o rk sh o p        w eld in g w o rk sh o p          b arb in g w o rk sh o p         e lectrical w o rk sh o p       c o m p u tin g s h o e m ak in g a d eq u ate n o t ad eq u ate 63 63 nil nil nil nil nil 31 32 table 14 shows that in afikpo prisons 49.2% said that there are adequate vocational facility, while 50.8 responded that the vocational facilities are inadequate. while 100% responded that the prison has carpentry and tailoring workshops, they however wished that they had in addition a barbing, welding, computer and shoemaking workshops, which is presently absent in afikpo prisons. decongesting prisons in nigeria: the ebsu law clinic model 548 international journal of clinical legal education issue 20 3.5 summary of analysis of data from tables 1 to 14 in percentages abakaliki afikpo average remark tables 1 and 8: biodata of detainees men 87.4 82.5 84.95 women 12.6 17.5 15.05 children 2.5 6.3 4.4 against minimum standards adult 97.5 93.7 95.6 married 20.8 28.6 24.7 single 79.2 71.4 75.3 crime and youthfulness tables 2 and 9: nature of offences of detainees rape 3.8 3.2% 3.5 armed robbery 14.5 7.9% 11.2 cultism 4.4 3.2% 3.8 stealing 20.8 33.3% 27.05 highest crime rate breaking and entry 27 20.6% 23.8 arson 2.5 6.3% 4.4 murder 6.3 6.3% 6.3 kidnapping 1.8 4.8% 3.3 emerging crime since 2008 particularly in south eastern nigeria assault and battery 18.9 14.3% 16.6 549 abakaliki afikpo average remark tables 3 and 10: nature of detention, legal representation and access to justice atm (awaiting trial men) 83% 76.2% 79.6% imprisonment without trial is unacceptable convicted 12.6% 12.7% 12.65% low undergoing trial 4.4% 11.1% 7.75% unacceptable: lack of access to justice detained below 1 year 1.9% 4.8% 3.35% low above 1 year 98.1% 95.2% 96.65% high and unacceptable: access to justice those with lawyers 18.2% 11.1% 14.65% poor access to justice without legal representation 81.8% 88.9% 85.35% lack of access to justice delayed prosecution 99.4% 98.4% 99% delay in criminal justice delivery speedy prosecution 0.6% 1.6% 1.1% poor few recidivists 24.5% 24.5% 24.5% many recidivists 75.5% 75.5% 75.5% recidivism: a bad omen tables 4 and 11: facilities available – sanitary, toiletry and environmental good water supply 37.7% 47.6% 42.65% bad water supply 62.3% 52.4% 57.35% a problem water closet toilet 100% 93.7% 96.85% good pit toilet 0% 6.3% 3.15% bucket 0% 0% 0% clean toilet 12.6% 28.6% 20.6% not clean 87.4% 71.4% 79.4% a problem toiletries are always available 18.9% 27% 22.95% toiletries not available 81.1% 73% 77.05% a problem i sleep on foam 76.1% 79.4% 77.75% i sleep on mat 23.9% 20.6% 22.25% bad cleanliness of the beddings 28.3% 31.7% 30% beddings not clean 71.7% 68.3% 70% a problem kitchen is clean 13.2% 31.72% 22.46% decongesting prisons in nigeria: the ebsu law clinic model 550 international journal of clinical legal education issue 20 abakaliki afikpo average remark not clean 80.5% 63.5% 72% a problem i don’t know 6.3% 4.8% cleanliness of environment 64.2% 54% 59.1% untidy environment 35.8% 46% 41% not good enough tables 5 and 12: facilities available – power and healthcare facilities good laundry and uniforms 48.4% 50.8% 49.6% just for the convicted bad laundry and uniforms 51.6% 49.2% 50.4% sole dependence on epileptic power supply 100% 100% 100% a problem standby generator 0% 0% 0% clinic available 93% 95% 94% good clinic not available 7% 5% 6% adequate doctors and nurses 43.4% 15.9% 29.65% inadequate doctors and nurses 56.6% 84.1% 70.35% a problem availability of drugs 25.2% 31.7% 28.45% dearth of drugs 74.8% 68.3% 71.55% a problem clinic is clean 78.6% 50.8% 64.7% a problem not clean 21.4% 49.2% 551 abakaliki afikpo average remark tables 6 and 13: facilities available – conscience, sporting and recreation freedom of worship 92.5% 90.5% 91.5% good no freedom of worship 7.5% 9.5% 8.5% christians 85.5% 92.1% 89% moslems 14.5% 4.8% 9.65% traditional religion 0% 3.1% 1.55% school available 100% 0% n/a good not available 0% 100% n/a a problem sufficiency of recreational facilities 56.6% 39.7% 48.15% fair not sufficient 43.4% 60.3% 51.85% availability of football facility 100% 50% 75% good availability of weight lifting facility 100% 20% 60% good draft, chess, monopoly, scrabble and others 67.3% 20% 43.65% not good enough no other sporting availability 32.7% 10% 21.35% tables 7 and 14: availability of vocational facilities adequate vocational facility 66% 49.2% 57.6% fair not adequate 34% 50.8% 42.4% carpentry 100% 100% 100% good tailoring 100% 100% 100% good barbing 100% 0 n/a good/bad welding 100% 0 n/a good/bad electrical 100% 0 n/a good/bad computing 100% 0 n/a good/bad shoemaking 100% 0 n/a good/bad decongesting prisons in nigeria: the ebsu law clinic model 552 international journal of clinical legal education issue 20 part 4 summary of findings 1. after fact finding visits to the two federal prisons in ebonyi state of nigeria, we discovered that we have 914 detainees/convicts in prisons for which capacity is 387. 2. afikpo prison is operating within the built capacity by having 162 inmates with capacity of 200. 3. in afikpo 138 are awaiting trial (atm), while only 24 are serving their terms after proper court conviction. 4. in abakaliki prison 848 detainees are awaiting trial, while only 66 are serving their terms after proper court conviction. 5. out of 269 inmates so far interviewed directly or via a questionnaire in both abakaliki and afikpo prisons only 65 agreed that they have access to justice, while 204 have no counsel representing them, despite the supposed federal government of nigeria prison decongestion programme. 6. out of these 269, only 65 are presently going on in court. the rest were merely charged and detained without more. 7. according to our findings, they were remanded because the magistrates courts where they where charged under ‘holding charge’ had no jurisdiction. 8. there were cases which were sent to the director of public prosecution (dpp) for advice. the advice has either not been given, or the dpp was yet to put their papers together for information or charge to be brought to high courts of competent jurisdiction. 9. afikpo prison is generally old, the facility old, obsolete and overdue for repairs or replacement. in both abakaliki and afikpo prisons, basic facilities were either inadequate or totally lacking. for example, both afikpo and abakaliki prisons have no functional standby generator, and water is a major challenge. irregular water and power supply in the prisons reflected the general situation in the country. most prisons had no alternative source of power while water supply was irregular and inadequate. 10. although recreational facilities, like football and weightlifting are available in abakaliki, they are grossly inadequate; and completely unavailable in the afikpo prisons. both prisons need well established facilities for recreation, like football, basket ball, lane tennis, table tennis and indoor games like monopoly, scrabble, draft, chess etc. 11. there was general unavailability of drugs, medical personnel and equipment in the prisons. only one doctor serves both afikpo and abakaliki, and none has resident doctors. afikpo prison, for example has only a doctor who visited occasionally from abakaliki. the prisons did not have the facility to handle psychiatric and ante-natal cases. 12. transport facilities were grossly inadequate in the two prisons. the prisons need more green maria, mini vans, pick-up trucks and ambulances. 13. while abakaliki prison has a modest computer room for inmates, mini-library and classrooms where inmates receive primary and secondary education and are subsequently 553 registered for external examinations, however, this facility is lacking at afikpo prison. there is no school or library facility nor do they have a computer room or any educational facilities at all at afikpo prison. 14. abakaliki prison have provision for vocational training in one form or the other. for example, at abakaliki there are tailoring, electrical, barbing, welding and carpentry workshops, where the trades and vocations are taught in the prison. to the contrary these vocational facilities are absent in afikpo prison, apart from tailoring and carpentry workshops. although the inmates at afikpo are interested in barbing, shoe making and computing, there were no such facilities. even at abakaliki where most of the vocational equipment existed, the workshops were ill-equipped with obsolete tools and lacked trained instructors. 15. like in most prisons in urban areas, there was overcrowding in prisons in abakaliki prison, with over hundred percent extra detainees; while afikpo prison operates within built capacity. 16. the state of the cells was poor and hardly fit for human habitation. this was especially so in the awaiting trial cells. ventilation was poor due to overcrowding. the poor state of the toilets in the cells contributed to the deplorable condition of the cells thereby posing health risks to inmates. 17. beds and beddings were generally inadequate with many inmates having to sleep on improvised mats and beddings in both prisons. 18. many inmates had no uniforms. the few uniforms available were old and thread-bare. 19. feeding in both prisons were thrice in most cases, but not well made and balanced. the prisoners said that the quantity and quality was highly poor and unacceptable. some of the prisoners, especially at abakaliki commented that feeding was generally poor even though it was three times a day (but not all days). 20. residential accommodation for prison officers was virtually non-existent in both afikpo and abakaliki prisons. where they existed, it was grossly inadequate. office accommodation was also inadequate and more often than not, dilapidated. office equipment such as file cabinets, computers, photocopiers amongst others, were also not available. communication and security equipment were also lacking. chairs and tables were old and needed replacement. 21. it was difficult to obtain records of inmates with legal representation, inmates whose case files were missing, and those whose cases were stalled on account of unavailability of the investigating police officer (ipo) and advice from the dpp. this was because of poor record keeping system in the prisons. most records in this regard, were obtained through direct interviews with the inmates. 22. legal representation was generally low in both afikpo and abakaliki prisons visited. there were many persons awaiting trial who did not have legal representation. although some prisons did benefit from the federal government’s prison decongestion exercise, many prisons did not have records of this exercise to assess its impact. it was also observed that the federal government decongestion exercise, especially assignment of cases to private law firms, concentrated on prisons in urban centres, and in any case was very selective, as over 90% had no access to justice. 23. there were no facilities for the care of pregnant women or nursing mothers in the prisons. children born in prison were kept with their mothers until they were weaned. no extra decongesting prisons in nigeria: the ebsu law clinic model 554 international journal of clinical legal education issue 20 provision was made for the care of such babies. 24. although very few, children were found in some of the prisons visited. three children were seen at abakaliki and one at afikpo. no special provisions were made for children as this was not a consideration for classification and separation of inmates in the prisons. 25. there were inmates with life threatening ailments in the prisons visited. such ailments include tuberculosis, hiv/aids, cancer, amongst others. 9 of such cases were seen in abakaliki and 6 in afikpo prison. though the clinics were not equipped to handle complex cases like these, there was provision of drugs for some of the ailments like tuberculosis. the anti retroviral drugs for hiv/aids were available but were not supplied regularly. cases involving surgery were referred to the general hospitals. skin diseases like eczema and ringworm were a common place in both prisons. 26. 12 lunatics were seen at abakaliki prisons. it should be noted that lunatics require special care and should not to be kept in the prison where there are no facilities for their care and treatment. state of afikpo prison 27. on the state of the prisons, we discovered that afikpo federal prison is one of the oldest in the country. it was built by colonial masters as far back as 1911. 28. it is one of the first 20 out of the over 227 prisons in nigeria. 29. not surprisingly therefore, the environment is very untidy with dilapidated structures mainly made of asbestos 30. it has not had any significant renovation since its inception about 100 years ago. state of abakaliki prison 31. it was built by the colonial administration in 1946. 32. although the compound outwardly appears neater than the afikpo prison, the cells are not as neat. 33. the cells may have been left unkempt possibly to deter recidivists from contemplating a comeback. 34. like the afikpo prison, no significant renovation has taken place since its construction 63 years ago. 35. again, open interviews randomly done during the course of our prison outreach programmes revealed as follows: • out of 222 detainees interviewed, only 20 representing about 8% of the population studied agreed that they had access to justice and can afford a lawyer. • 93% said that they often concede their legal rights because they can’t afford the services of a lawyer. • some said that many times they don’t even know when their legal rights are denied them or infringed on. 555 part 5 5.0 recommendations and conclusion we recommend that federal and state government, the united nations and its specialised agencies, development partners and well meaning nigerians should come to the aid of abakaliki and afikpo prisons, and indeed nigerian prisons by building a very good structure to accommodate all the inmates in a humanitarian and reformative environment and that would help to improve their welfare. we further recommend as follows. 5.1 recommendations 1. to forestall the problem of overcrowding, as revealed especially in abakaliki prison where we discovered that we have 914 detainees/convicts in a prison whose capacity is not 387; there is need for urgent expansion of the existing prisons and/or construction of new ones to address congestion and to take account of rising crime rate, which in turn inevitably, leads to an increase in prison population. 2. to minimise the burden of atm, as evident in both prisons. there is need for urgent proactive action. for example, in afikpo 138 are atm, while only 24 are serving their terms after proper court conviction. in abakaliki prison 848 detainees are awaiting trial, while only 66 are serving their terms after proper court conviction. there is need for the establishment of permanent court houses in the larger prisons, to ease access to justice and liberalisation of bail terms. 3. there is need to ensure that administration of justice committees in the states are established and functional. regular prison visits by the chief judges of the states would help a great deal to speed up trial and reduce congestion. in other words, jail delivery should be conducted on a more regular basis. this will go a long way in decongesting our prisons. this is the view of all the interest groups in the business of justice dispensation. according to chief bayo ojo, former attorney general of the federation and minister of justice, those to benefit from this exercise should be the aged, those with terminal illness, and those whose terms would have expired if they were convicted on time. it was through the jail delivery programme that ebsu law clinic secured the release of two prisoners within the period under review (2009). during the jail delivery of the chief judge, hon. justice a.n. nwankwo the clinic helped in the release of ngozi eden of igbeagu izzi and chukwuma ereke of ezza umuhuali. 4. establishment of prison reforms and decongestion commission to coordinate all the necessary reforms and promote synergy in the various sectors of the criminal justice administration. law clinics should be made part of the synergy in the decongestion reform agenda. ebsu law clinic based in this jurisdiction will gladly welcome the synergy and partnership in the area of research, fact finding, paralegal advocacy, interview and counselling, among others. 5. there is need to appoint the legal aid council and national human rights commission as prison inspectors to improve implementation of penal policy. although these federal government agencies operate minimally at abakaliki, they have no office at afikpo. more offices should be sent gto ebonyi state to cover both prisons. decongesting prisons in nigeria: the ebsu law clinic model 556 international journal of clinical legal education issue 20 6. provision of an adequate, well trained corps of professional ipos and police prosecutors, who should be well distributed within the state. they should not be too frequently transferred. 7. the location of courts should have consideration for proximity to prisons and there should be in place a regular comprehensive evaluation of the prisons to establish their conditions, to determine the kind and extent of intervention needed. this should be on stated intervals. 8. constitutional amendment that involves the states in the establishment and running of prisons especially as an overwhelming majority of inmates are sent to confinement by state courts for infractions or alleged infractions of state laws. an assumption of responsibility for prisons by the states would make them amenable to accepting reforms especially where such reforms are cost saving. 9. radically increasing the funding of legal aid, and recognition of university based law clinics as partners in the prison decongestion business. 10. to minimise the problem of lack of access to justice and legal representation by detainees, there should be mandatory provision of legal aid for accused persons in detention. 11. reform of the legal aid scheme that enables judges to have at all times, a list of lawyers within their jurisdiction in either abakaliki or afikpo, who are registered with the legal aid scheme, so that such lawyers can be appointed by the judges as necessary for persons in detention who do not have legal representation. 12. provision of adequate and functioning transportation for the conveyance of atms to court and hospital, where the need arises. 13. reform of criminal trial system to ensure speed, for instance: • imposition of time limits for criminal trials where the accused person is denied or unable to satisfy bail terms. • courts within a state, to be given jurisdiction to try detainees regardless of where the offences alleged were committed and, regardless of the detainee’s place of detention. 14. immediate provision of special facilities for the benefit of special categories of prisoners like • nursing and expectant mothers • infants • prisoners with psychiatric problems • prisoners with special medical conditions like hiv/aids, tb, and other transmittable diseases. 15. the prisons are old; therefore, there is need for massive renovation of afikpo prison which was built in 1911 i.e. about a century (100 years) ago by the colonial masters. it comprises of broken-down structures. cells are constructed from foundation with asbestos and therefore very hot and not fit for habitation. abakaliki prison built 35 years after afikpo prison in (1946) also requires extensive renovation to serve the growing capacity of the prison, as part of the structures are almost collapsing. 16. it need not be emphasised that recreation is vital for the physical and mental well-being of the inmates. there is a dearth of recreational facility at afikpo prison. the ones at abakaliki are grossly inadequate; hence efforts should be made to provide spaces within the prison yards 557 for inmates to have daily exercises indoor games alone cannot serve as adequate source of recreation for inmates. 17. the vocational facilities aimed at making prisons self sufficient in repairs and minor services should be established. block moulding industries, electrical and painting workshops should be established. tailoring workshops should be made more functional to cater for the uniform needs of staff and the inmates at abakaliki prison. there is near absence of these facilities at afikpo prison, save tailoring and carpentry. it is recommended that urgent efforts must be made to provide equipment and trainers for shoemaking, barbing, computing, electrical and electronic repairs etc. at afikpo prison. this will help in eliminating the recidivism in criminal justice system in nigeria. 18. as is the case with abakaliki, educational facility should be established in afikpo prison, as there is none there as at the time of our evaluation. we recommend that, government should establish a standard primary/secondary school and employ qualified teachers to enlighten the inmates. again, the educational facilities in the prisons should be made functional, as education is a key component of the rehabilitation and reformation process of inmates. there is also need for provision of functional libraries in the prisons. the prisons authority should explore the possibility of liaising with organizations such as book aid international (uk), national commission for mass literacy and others, for this purpose, especially abakaliki prison that already has a school. 19. a functional healthcare facility should be established at afikpo and resident doctors and nurses deployed. the provision of essential and relevant drugs should be made a priority in the health units of the prisons. in abakaliki prison, and indeed afikpo, access to antiretroviral drugs for hiv positive inmates needs to be scaled up. there is also need to provide adequate medical personnel and equipment in all prisons. in addition, special provisions should be made for nursing and/or pregnant mothers taking into consideration their special needs. 20. there is need to provide transport facilities in both prisons to augment the existing one. this is essential, because the absence of transport facilities delay trials and contribute to prison congestion. 21. water supply is a big challenge to both abakaliki and afikpo prisons. adequate water supply must be provided in all the prisons. the contracting of water supply to water vendors is not reliable. the fetching of water from streams outside the prisons exposes inmates to unsafe water and carries much health and security risks. this must be stopped as soon as practicable. this is because, inadequate water supply means that toilets which are located within the cells give offensive odour thereby making the cells intolerable and increasing the likelihood of the outbreak of epidemics. this should be addressed in line with national and international standards. 22. similarly, power supply to the prisons must be improved to aid food and drugs storage as well as make prison environment more habitable. it will enhance the welfare and security of inmates and staff. hence provision of alternative power supply generator that is well maintained and functional is essential. 23. there is urgent need to reduce prison population especially the ati. inclusive within this decongesting prisons in nigeria: the ebsu law clinic model 558 international journal of clinical legal education issue 20 broad recommendation is the need to institutionalise prison decongestion schemes and streamline all programmes geared towards decongestion. 24. the environment of abakaliki prison is a smokescreen from the situation inside. afikpo prison is deplorable within and outside the cells. it is therefore essential that the conditions of prison cells with particular regard to toilet facilities and ventilation needs immediate improvement for health and security reasons. 25. the increase of the feeding allowance of inmates to n200 per day is a welcome development. this has however not impacted significantly on the quality of food in the prisons. efforts should be made to ensure efficient application of the improved funding for food in the prisons. in addition, the provision of good food storage facilities in the prisons is recommended as this would improve food handling. 26. most of the prison staff interviewed, mentioned poor condition of service. the welfare of prison officials needs to be given urgent attention in order to motivate them to provide the services more professionally and appropriately. 27. similarly, adequate barracks should be built for the officers close to the prisons while the existing barracks which are in a state of disrepair should be renovated. car loans and housing loans should be organised for prison officials to boost their morale in the job. 28. the prison authority should provide uniforms for the officers at reasonable intervals, considering the need for the officers to be in the uniforms daily and the type of duty some of them are involved in. there is need for them to appear smart at all times so that the inmates can accord them appropriate respect. 29. the prison staff interviewed at both abakaliki and afikpo prisons gave inconsistent figures as to the number of inmates in their custody. this is unfortunate. the inability of the prisons to provide accurate necessary data on inmates in their custody should be addressed urgently. record keeping in prisons should be improved. this should be computerized in line with standards in other establishments and organizations. in this regard, there is need to build the capacity of prison officials in information technology for better record keeping to facilitate study, research and reform efforts in nigeria prisons. 30. young and under aged children were sighted in both prisons. there is urgent need to ensure that juveniles are not kept in prisons designated for adults. in this regard, borstal institutions should be established in each geo-political zone in the country. 31. to meet international standards, there is urgent need to remove all mentally ill inmates from prisons to psychiatric hospitals or institutions where they can receive appropriate care and treatment for their health conditions. this is particularly vital in abakaliki prison. 32. the condition of lifers and inmates on death row should be improved. the relevant authorities may commute the sentences appropriately, in view of the unofficial moratorium being enjoyed by such inmates. in this regard, there is need to consider the desirability of abolition of death penalty during the on going constitutional reforms. 33. stoppage of “holding charge”. a situation where people are put in prison custody without charge and pending the completion of investigation makes for over congestion of the prison. this practice would be discouraged in order for the prison to be decongested. according to our findings, most of the inmates are detained on “holding charge”. they were remanded 559 because the magistrates courts where they were charged under “holding charge” had no jurisdiction. it has been said at the courts and all fora that “holding charge” is not part of nigerian law. this should be enforced by a joint effort of the courts, the police and the prison authorities. the policemen always charge respective cases to the appropriate courts. in the same vein, the police should always take or charge the offenders in the court that has the competent jurisdiction to entertain the matter, to avoid declining jurisdiction and dump most innocent people in the prison, in the name of remanding the person. 34. the courts who give remand orders pending advice from the dpp should ensure that return dates are given to ensure expedited compliance, instead of just adjoining the case sine die at the cost of the detained, who may be there sine die! 35. provision of prison alternatives. penal reform should address the need for the introduction of non custodial measures as an alternative to imprisonment. the absence of prison alternatives like probation or suspended sentence, plea-bargaining, community service, parole, etc. which are absent in nigeria have gone a long way in compounding prison congestion. these prison alternatives should be provided for non-violent offences like misdemeanour. 36. compulsory provision of pro-bono services by lawyers and interest groups. adequate probono services should be provided by lawyers in order to ease-off the over-congestion in nigerian prison. the resource persons at the detainees and indigent help centre upheld this point. they maintained that the option of pleading guilty or not guilty does not relieve the prison of heavy traffic since the two still lead suspects to the prison. therefore, a suspect needs a lawyer to guide and defend him. it noted that the legal aid council that would have been doing pro-bono services has not been effective because of poor logistics and inadequate human resources. therefore, very little help or none at all is coming the way of poor accused persons in nigeria thereby making them to continue to congest the prisons. 37. use of prerogative of mercy exercised. the use of prerogative of mercy by the country’s president and governor of a state is one sure way of decongesting the prison. this means the pardoning of a convict on the basis of mercy. this is determined by so many factors among which are: old age, sign of penitence on the part of the convict, long-delay in the dispensation of justice which has led to the accused staying in awaiting trial for a period longer than the time which the accused would have served if convicted on time. 38. prompt dispensation of justice. there is a saying that justice delayed is justice denied. quick dispensation of justice is sine-quo-non to good justice. this can be achieved by employing more legal officers, creation of more magisterial districts and judicial divisions. decongesting prisons in nigeria: the ebsu law clinic modeldecongesting prisons in nigeria: the ebsu law clinic model 560 international journal of clinical legal education issue 20 5.2 conclusion the above findings show that prison outreach programmes cannot be timelier than now. it is clear in the two federal prisons studied that most prisons are carrying more than built capacity, due to the problem of “holding charge”, lack of legal representation and access to justice, recidivism, slow criminal justice system, and poor judiciary and prison infrastructure, inter alia. this reflects the general prison condition in nigeria. we in ebsu law clinic have decided to use bicycle-type access to justice, leaving pajero -type justice delivery system to lawyers. student clinicians are a ready paralegal pool to use to enhance access to justice. our prison project is poised to change the status quo, and drive towards reform, which the prisons are meant to do. while commending the government on steps taken so far, the government is urged to strengthen efforts to improve the appalling state and living conditions in nigerian prisons as well as overhaul the criminal justice delivery system. against the background that prison reforms in isolation of overhauling other arms of justice-delivery would not achieve desired results, we also use this medium to reiterate the need for quick passage of the prison act (amendment bill) as well as strengthen other measures aimed at reforming the criminal justice administration in nigeria. if the above findings and recommendations are implemented, the problem of prison congestion will be a thing of the past. 561 appendix a questionnaire ebsu law clinic prison decongestion and facility evaluation project questionnaire (epdafepq) for abakaliki and afikpo federal prisons 2010 dear respondent, this project is aimed at accessing the conditions of the inmates of this prison, with a view to seeing how best the clinic can assist in the decongestion of the prison by providing legal and other services to the inmates. we therefore, beseech you to give us accurate information to the best of your knowledge so that we can assist you optimally. we shall assist you in putting down your answers where necessary. thank you. 1 i. name of inmate: ...................................... ii. nationality: .......................................... state of origin ............................................ lga .................................................... village ........................................................ 2 i. age: ..................................................... ii. sex: ........................................................ 3. marital status: ............................................. 4. why are you here?  (i.e. the offence / accusation what brought you here)  ............................... 5. for how long? ............................................. 6. are you: (a) awaiting trial / or (b) convicted / or (c) still undergoing trials? (please underline . the category) 7. if under a or c above, do you have a lawyer representing you? (yes)  (no) 8. if yes, how often do you keep in touch with him/her? ---------------------- 9. do you think that your prosecution is being delayed?  yes or no (underline)  9. do you know why your prosecution has been or is being delayed? yes or no.  (circle please ) if yes why .................................................... 10. would you like to be freed? ........................   decongesting prisons in nigeria: the ebsu law clinic model 562 international journal of clinical legal education issue 20 prison facilities assessment              11. what is the state of infrastructural facilities? sources of water i. (eg. pipe borne water, bore hole water, well (underline), any other souce ....................... ii. is the water good      yes     no  (circle please) 12. toilet and sanitary facilities: i. types of toilet  (pit, water closet system, bucket system) ii. is the toilet well kept?    yes   no  (circle please) iii. do you have toiletry?     yes    no    (circle please) iv. do you use soap? yes  or  no  (circle  please) 13. sources of light or power supply i. phcn or generator or lantern or candle  (underline) ii. is the supply regular?  yes no  (circle please)         14 what is the state of the following facilities? i. beddings: (a) foam, mat,  floor  (underline) (b) do you share your space with anyone? yes   or   no (circle please)   15. uniforms: (a) do the prison authority provide you with uniforms? yes or no (circle please) (b) if yes, do you wash it often  yes or no (circle please)  16. what is the state of facilities for worship? ............................................................................. .............................................................................................................................................. 17. what is the state of healthcare facilities and personnel? i. healthcare facilities (clinics, hospital) etc ....................................................................... ii. healthcare personnel  (doctors, nurse etc) ...................................................................... 18. are there adequate recreational facilities? yes or no  (circle please) if yes name those available a ............................................................. b ................................................................ c ............................................................. d ............................................................... 19. are there vocational skill facilities? yes or no (circle please) if yes name them. ................................................................................................................. .............................................................................................................................................. thank you for your time 251251 foreword welcome to the 19th issue of the journal. this issue is a special issue containing papers from our conference in durham in july 2012� these include the keynote address from mary anne noone which provided a timely reminder that as well as our concerns with pedagogy and social justice, we cannot afford to neglect the practicalities of ensuring clinic continues to grow and thrive� in this, creating a positive and persuasive brand for our work is an important, and overlooked, issue� the papers in this edition reflect the growing true internationalisation of clinic� the conference had delegates from over 25 countries� we had an unprecedented number of submissions to the journal and i am pleased to report that the papers we publish here are written by clinicians practising in nigeria, croatia, the czech republic, australia, india, and new zealand as well as numerous papers from our colleagues in the uk� as clinical legal education grows around the world we are witnessing the growth in this journal of international colleagues publishing their work� the papers we publish in this issue are of course a small proportion of the papers presented at the 2012 conference� my colleague christopher simmonds chaired many of the sessions at the 2012 conference and the remainder of this foreword is given over to his observations on the themes that he identified while attending those sessions� jonny hall editor international journal of clinical legal education june 2013 introduction these comments draw out some of the themes that i noticed with the aim of promoting debate and reflection and highlighting some of the challenges and opportunities that we face as clinicians� it also highlights what i see as being one of the biggest selling points of clinical legal education – the passion that we as clinicians have for the way in which we teach� economic challenges: one of the most significant themes that emerged throughout the conference was in relation to the challenges that we are facing as clinicians both in terms of the delivery of existing clinical programmes, but also in terms of expanding the clinical legal education movement throughout the world� we have all seen recent news stories relating to the state of the world economy and the austerity measures that are being implemented internationally� but what is perhaps not as clear is the impact that the economy is having on our own work as clinicians� 252 international journal of clinical legal education issue 19 one of the last sessions that i chaired was a paper by prado perez and casey (2012)1� in it they discussed the challenges faced by clinics both in america and in spain for numerous reasons, but underlying everything was the current economic climate� in spain, there are relatively few clinics and of those that exist not all will give credit to the student for their participation� yet the picture that emerged from the paper was one of a growing acceptance of clinics and a drive to expand and integrate them into the law curriculum� america is perhaps at the other end of the scale� the majority of law schools there offer some form of clinical experience and in some cases they will offer several different models� their clinics are well established and the majority will award the student credit for taking part on the course� in some cases a form of clinic must be included in the student’s course in order for them to graduate� in both jurisdictions clinic is expensive though� that is, i suspect, something that is common to clinics around the world� the result is that questions are being asked as to whether clinical legal education is worth the money that it costs� at a time when universities are having to justify their expenditure and minimise their debts there is a growing fear that those who criticise clinical teaching will lobby for the closure of clinical programmes� this is not a minor threat� when a student can obtain a practical legal experience without any cost to the university by attending work experience or by taking part in a compulsory placement (without any pedagogical intervention by the university) then the issue arises as to whether the university management will see the unique educational benefits that are inherent in clinic� but while the economic climate is causing universities around the world to tighten their belts, it is also having the effect of increasing the demand for clinics� one of the common themes that emerged from the papers from england, including my own 2, was related to the decision of the british government to significantly reduce the scope of legal aid as one of the austerity measures targeted at reducing the national debt� the effect of this is that far fewer cases will now be eligible for financial assistance from public funds� unless a person is at risk of losing their home, their life or their liberty then it is unlikely that they will benefit from legal aid� yet the question that remains to be answered is who will pick up those clients whose cases are too expensive for them to fund privately but that are too important to just sweep under the carpet and forget about� the answer that is increasingly being given by the government is that they expect that role to be filled by pro bono legal advice, whether from law firms or from clinics, charities and other similar organisations� other jurisdictions are undergoing similar processes and as austerity measures bite there will no doubt be an increased demand for the services offered by clinics� we will therefore have to plan ahead to ensure that we can continue to meet the needs of our 1 prado perez, r and casey, t (2012) ‘a comparative approach to clinical legal education’ entering the mainstream: clinic for all: the 10th international clinical legal education conference radisson blu hotel, durham 11-13 july 2012� summary available at http://www�numyspace�co�uk/~unn_mlif1/school_of_law/ijcle/materials�html (accessed 08 september 2012)� 2 simmonds, c� (2012) ‘legal advice byker – clinic on the high street’ entering the mainstream: clinic for all: the 10th international clinical legal education conference radisson blu hotel, durham 11-13 july 2012� abstract available at http://www�numyspace�co�uk/~unn_mlif1/school_of_law/ijcle/abstracts�html (last accessed 28 september 2012)� 252 253 communities while doing so in a cost-effective manner� ultimately, though, the question will be whether we will grow to meet the increased demand or shrink in order to reduce costs or whether we can maintain the status quo in spite of all of the pressures� innovative projects: but what is impressive given the climate i describe above is the number of new and innovative projects that are developing around the world� clinicians are a strange breed� we are usually practitioners in our jurisdictions but we are also academics, tasked with educating the next generation of lawyers and as with all academics there is an expectation that we will engage in research alongside clinic� a fascinating paper by mullen (2012) 3 from the catholic university of america, usa highlighted the fact that research and clinic need not be mutually exclusive concepts� she highlighted her own work with students carrying out discrete pieces of research that benefitted not only the university, herself and her students but which were also of benefit to the university’s community partners� by way of a practical example, she presented a research project that she undertook with her clinic students whereby they investigated what turned out to be a misapprehension that judges were forcing employees to give evidence against their best interests in undefended wrongful dismissal cases� in another paper, russell (2012) 4 from london south bank university described the development of his own clinic which operates as a drop-in advice service on a scale previously unheard of in england� the area of london within which the university is based has a high level of depravation� some investigations with the local citizens’ advice bureau showed that they had a high demand for their services that they could not meet� the university established a weekly drop in clinic where general advice was offered on a variety of legal problems� in the event that follow up advice was needed the university teamed up with local solicitors and barristers to offer a further evening advice session where the original advice could be built upon and the client’s case could potentially be taken on for full advice and representation� in running a programme such as this, the university was able to meet demand for free legal advice in an area in extreme need and at the same time give students a broad and varied experience of advising clients with legal problems� it also meant that students were exposed to social justice issues that they would not ordinarily face through a doctrinal undergraduate law degree in england� focus on students: this leads neatly into the third trend that i observed throughout the conference� attempts to define clinical legal education have led to differences of opinion as to whether social justice should always play a part in clinic and there will no doubt be debates in relation to this in future years� 3 mullen, f� (2012) ‘engaging with the profession: teaching clinical students to conduct small-scale empirical research on behalf of community partners’ entering the mainstream: clinic for all: the 10th international clinical legal education conference radisson blu hotel, durham 11-13 july 2012� abstract available at http://www� numyspace�co�uk/~unn_mlif1/school_of_law/ijcle/abstracts�html (last accessed 28 september 2012)� 4 published in this issue foreword 254 international journal of clinical legal education issue 19 nonetheless what was clear throughout the conference was that as clinicians our focus remains on students� the projects that i have described above all had a single aim – achieving the best possible experience for the student� they sought to make clinic interesting, educational and reflective of practice� at the heart of clinical education remains a recognition that clinic is above all a means of training and educating future practitioners� some would argue that at the heart of any clinical programme must therefore be credit for the student� clubb (2012)5 presented a paper exploring the use of patch text assessment as an alternative to the traditional portfolio as a means for assessing students undertaking clinical programmes� the use of patch text addresses the issue of students struggling with reflection, having to recall experiences at the end of the year that they have often forgotten� drawing on wider pedagogical theories and research and adapting it to the clinical environment, clubb investigated the benefits that could be gained by drawing on wider educational theories to enhance our own practice� passion for clinic: by far the most common theme that came through the conference for me, though, was the passion that we as clinicians have for the work that we do� nazeri and mohd suhaimi from the university of malaya, malaysia presented a paper that they had written jointly with colleagues from the univeristy of pasundan, indonesia6 which described a project that they had undertaken where they sought to educate migrant workers coming into malaysia from indonesia about key areas of law that they needed to understand� the project itself, which involved travelling to another country and presenting the law in a way that overcame language barriers, was a fascinating subject but for me the main thing about the presentation was the energy, the passion and the humour that emerged� the room was in fits of laughter and everyone left the room smiling� this presentation was followed by a paper by rauch (2012)7 from the university of british columbia, canada in which she described the work that she has undertaken with the indigenous populace� 5 clubb, k� (2012) ‘assessing clinic – the use of patch text assessment as an alternative to portfolios’ entering the mainstream: clinic for all: the 10th international clinical legal education conference radisson blu hotel, durham 11-13 july 2012� abstract available at http://www�numyspace�co�uk/~unn_mlif1/school_of_law/ijcle/abstracts�html (last accessed 28 september 2012)� 6 nazeri, n; mohd suhaimi, a; hasballah, w; widi mulyani, l and septianita, h ‘ working with migrant workers: a cross border cle experience’ entering the mainstream: clinic for all: the 10th international clinical legal education conference radisson blu hotel, durham 11-13 july 2012� abstract available at http://www� numyspace�co�uk/~unn_mlif1/school_of_law/ijcle/abstracts�html (last accessed 28 september 2012)� 7 rauch, s� (2012) ‘in whose interest? listening: indigenous clinical practice and pedagogy’ entering the mainstream: clinic for all: the 10th international clinical legal education conference radisson blu hotel, durham 11-13 july 2012� abstract available at http://www�numyspace�co�uk/~unn_mlif1/school_of_law/ijcle/abstracts�html (last accessed 28 september 2012)� 255 she talked about the way that the indigenous tribes and people used stories as a means of passing on knowledge and experience and explored how that approach could be used to educate students� encouraging students to listen to the stories of their clients helped them to understand the context of the case and to come to empathise with the client much more effectively� underlying it all was a real desire to help people� in this instance, to help a group of people who had lived in a country for centuries before it was colonised by the western world but who now faced laws and restrictions that had been thrust on them� in much the same way that indonesian migrant workers had insufficient knowledge of the laws of the land that they were working in, here there was a population having to come to terms with the laws of their own country, because they were not their own laws� conclusion: having listened to so many papers over the three day conference it struck me that there are undoubtedly challenges that we are facing and that we will have to overcome, such as the economic issues that we face in coming years� yet despite that, we continue to seek out new challenges for our students� we look to improve our links with communities� we look to improve our assessment methods and ensure that our students have the best opportunity to do as well as they possibly can� overall, we continue to have a real passion for clinical legal education, for learning through and from experience� we have a real desire to help people and to carry out casework to the best of our abilities� passion, in any form of teaching, is key to engaging students with the subject and getting them to enjoy learning� our passion is our main strength� so moving forward to the next ijcle conference in 2013 we will have to face challenges, we will be working hard to introduce new schemes and new ideas, at times we may even wonder if it is worth all of the effort� but our passion for clinic leaves me in no doubt that we will all be back for next year’s conference and, more than that, we will have overcome our challenges through working together and will have more innovative projects and more enhancements for students to talk about� i have only been able to mention a small number of the interesting, informative, and enjoyable papers that i heard through the conference and of course there are the many papers that i was not able to hear� i would like to thank everyone for their participation and for making the conference such a success� christopher simmonds solicitor tutor student law office northumbria university foreword 256 international journal of clinical legal education issue 19 461 promoting law student mental health literacy and wellbeing: a case study from the college of law, australia1 michael appleby2 and judy bourke3 1 the authors greatly appreciate the very helpful comments and support given by dr michelle sanson, dr nicola reavley and dr monica hayes� 2 michael appleby is a lecturer at the college of law, sydney, australia and lawyer of the supreme court of nsw� 3 judy bourke is a senior lecturer at the college of law, sydney, australia and lawyer of the supreme court of nsw� 462 international journal of clinical legal education issue 20 1. introduction a number of studies have been undertaken about the mental health of law students and the reports as to the findings of those studies have all expressed concern about the high levels of psychological distress4 suffered by them�5 australian studies indicate that while university students suffer from emotional distress at a rate greater than that of the general population and at a higher rate than their non-student (age group) peers,6 law students are more distressed than their university peers�7 this has led to many calls for action�8 most law students undertake their degree with a view to practising law� it is now also accepted that legal practitioners suffer depression or emotional distress at higher rates than other professionals, other workers more generally and the general population�9 research shows that there is a strong correlation between high levels of emotional distress and the incidence of mental illness�10 law students suffering high or very high distress levels are therefore at an increased risk of suffering a mental illness, most commonly anxiety and/or depression� 4 the most common mental health surveys used by researchers in this area do not enable them to determine whether or not a participant has a diagnosable mental illness� however measuring emotional distress allows them to estimate ‘the risk that a person with a particular score is suffering from a mental illness’� courting the blues: attitudes towards depression in australian law students and legal practitioners, at 6 (2009) [hereinafter bmri repot]� 5 see for example, id�, wendy larcombe, ian malkin and pip nicholson, law student’s motivations, expectations and levels of psychological distress: evidence of connections, 21 legal education review 1-34(2011)� c� m� leahy, et al�, distress levels and self-reported treatment rates for medicine, law, psychology and mechanical engineering tertiary students: cross-sectional study, 44 aust n z j psychiatry (2010)� todd david peterson and elizabeth waters peterson, stemming the tide of law school depression: what law schools need to learn from the science of positive psychology, 9 yale journal of health policy, law, and ethics 357(2009)� k� m� sheldon & l� s� krieger, does legal education have undermining effects on law students? evaluating changes in motivation, values, and well-being, 22 behav sci law (2004) [hereinafter education]; k� m� sheldon & l� s� krieger, understanding the negative effects of legal education on law students: a longitudinal test of self-determination theory, 33 pers soc psychol bull (2007) [hereinafter understanding]; tani, m� and vines, p�, law students’ attitudes to education: pointers to depression in the legal academy and the profession?, 19 legal education review 3(2009)� note that peterson follows the studies of law student emotional distress in the usa back to 1957� 6 see for example, courting the blues, supra note 1, at 12; molly townes o’brien, stephen tang and kath hall, changing our thinking: empirical research on law student wellbeing, thinking styles and law curriculum, 149, 161 (2011); leahy, et al�, aust n z j psychiatry, 608, 159-161 (2010)� 7 see for example, courting the blues, supra note 1, at 12; leahy, et al�, supra note 3, at, 611� 8 see for example, watson p� & field r, promoting student wellbeing and resilience at law school, in excellence and innovation in legal education (sally kift ed� 2011), at 395; dr colin james, law student wellbeing: benefits of promoting psychological literacy and self-awareness using mindfulness, strengths theory and emotional intelligence 21 legal education review 217, 232 (2011); dr wendy larcombe and professor ian malkin, the jd first year experience: design issues and strategies, 21 legal education review 1, 15 (2011); peterson and peterson supra note 2, at 413; 9 see for example, w�w� eaton, j�c� anthony, w� mandel, r� garrison, occupations and the prevalence of major depressive disorder�, 32 journal of occupational medicine 1097(1990); bmri report supra note 1; and the summaries of previous research set out in; sheldon and kreiger, education, supra note 2 and tani and vines, supra note 2� 10 ronald c� kessler, phd; peggy r� barker, mph; lisa j� colpe, phd, mph; joan f� epstein, ms; et al�,screening for serious mental illness in the general population, 60 arch gen psychiatry 184-189, 188-189, (2003)� 463 faced with this problem, the question arises: how should legal education institutions11 respond? this article describes the approach taken by one legal education institution, the college of law, australia (the college), in answering this question� the college identified the value in improving students’ mental health literacy and stress management and now trains its lecturers to deliver an educational workshop (the workshop) in these areas� the workshop forms part of the core curriculum for the college’s practical legal training program (plt)� part 2 of the article reviews some of the literature about health promotion, health literacy, mental health literacy and promoting student wellbeing, providing the underpinnings for the intervention� part 3 describes the development of the workshop for pre-admission graduate law students� part 4 outlines the content of the workshop and delivery methods� part 5 considers evaluations of the workshop, from both the student and teacher perspective and student learning outcomes, and part 6 contains recommendations based on our experience in designing and delivering the workshop� 2. research basis for the intervention 2.1 the state of law student mental health and their knowledge of and attitudes towards mental health issues mental illness is a serious problem in the general population of countries such as australia� for example, in 2007, the australian bureau of statistics (abs) conducted a national survey of mental health and wellbeing� its report drew on surveys completed by 8,841 randomly selected australian households�12 participants were surveyed in relation to mental illness at any point in their lives, and in the 12 months before completing the survey (a 12-month mental disorder)� the results showed that in the year prior to the survey, 20% of australians aged between 16 and 85 years had had a mental disorder (a diagnosable mental illness)� more specifically, the report noted that 26% of people aged 16-24 had had a 12-month mental disorder� that level was almost matched by the next age group 25-34 years� anxiety, depressive and substance use disorders were the most common disorders revealed by the survey�13 young people make up the vast majority of university students�14 as disclosed above, about one in four young people will have had a mental disorder in any one year and this includes university students (and amongst those law students)� statistically, mental illness and psychological distress are the greatest burden of disease in young people�15 these facts should strongly inform universities and other tertiary education institutions, including law schools, in developing and implementing 11 we have used this term to apply to all organisations offering academic training to law students including university law schools and those offering, for example, practical legal training in countries such as australia (graduate diploma of legal practice), the uk (graduate diploma in law) and canada, for example in british columbia (professional legal training course)� 12 see, 4326�0 national survey of mental health and wellbeing: summary of results, 2007 at, http://www�abs� gov�au/ausstats/abs@�nsf/mf/4326�0 accessed 20 september 2012� 13 id., at 4 14 in 2012 the australian bureau of statistics reported that in 2010 that there were about 523,000 young people aged between 15 and 24 enrolled in higher education� see, australian bureau of statistics 1301�0 year book of australia, 2012 at http://www�abs�gov�au/ausstats/abs@�nsf/lookup/by%20subject/1301�0~2012~main%20 features~higher%20education~107 accessed 3 july 2013� 15 bmri report supra note 1, at 37 and 42� promoting law student mental health literacy and wellbeing: a case study from the college of law, australia 464 international journal of clinical legal education issue 20 policies regarding the health and wellbeing of their students� some research has been carried out to look at the mental health of university students� two recent studies in australia16 have respectively shown levels of emotional distress amongst university students to be higher than that of age matched population counterparts, and the general population� in only one of these studies did the researchers record and report data by reference to the degree course enrolled in� in that study, law students and mechanical engineering students distress ranked highest amongst those university students surveyed�17 this recent data concerning law students is broadly consistent with the other major australian studies which have looked at the mental health of law students� this includes the report of the brain and mind research institute of the university of sydney (bmri) entitled ‘courting the blues’18 and studies conducted at the australian national university19 and the university of melbourne20� it is also consistent with comparable studies conducted in the united states of america (u�s�)�21 the australian research, in addition to confirming the levels of emotional distress suffered by law students, also discloses (consistent with u�s� research) that there is a decline in their mental health within their first year of study�22 this is the case regardless of whether the students are graduates or undergraduates23 (including in the case of undergraduates for whom law subjects form less than half of the subjects studied in the first year of a combined degree)�24 the same outcome is apparent when curriculum designers take particular care to intentionally design a first year program for graduate students delivering a very good first year experience of law school�25 many studies of emotional distress in the literature (including that of the bmri) use the kessler k10/k6 non-specific distress scales to measure emotional distress� these were found in a study reported in 2003 to be statistically significant predictors of serious mental illnesses�26 the study conducted by the bmri disclosed that 35�4% of law students surveyed were found to 16 leahy et al� supra note 2, at 611; helen m� stallman, psychological distress in university students: a comparison with general population data, 45 australian psychologist 249, 253(2010)� cf n. j. reavley, et al�, actions taken to deal with mental health problems in australian higher education students, 6 early interv psychiatry 159(2012)� reavely found a rate of emotional distress in students less than in the general population and suggests that the levels in students needs further investigation, at 164� 17 leahy et al� supra note 2, at 611� 18 see bmri report, supra note 1� 19 see o’brien et al�, supra note 3� 20 see larcombe et al�, supra note 2� 21 see for example, peterson and peterson supra note 2; sheldon and kreiger, education, supra note 2� 22 o’brien et al� supra note 3, at 159-160; sheldon and kreiger, education, supra note 2 at 272� 23 o’brien et al� supra note 3; sheldon and kreiger, education, supra note 2� note that in the u�s� law is only offered as a graduate degree� 24 o’brien et al� supra note 3� in australia most universities offer law as an undergraduate degree� it is also most commonly offered as a combined degree with another discipline� by contrast in the u�s� law is undertaken as a graduate degree� 25 wendy larcombe, letty tumbaga, ian malkin, pip nicholson and orania tokatlidis, does an improved experience of law school protect students against depression, anxiety and stress? an empirical study of wellbeing and the law school experience of llb and jd students, 35 sydney law review 407, 432 (2013)� 26 kessler, supra note 7, at 188-189� 465 promoting law student mental health literacy and wellbeing: a case study from the college of law, australia have high or very high distress levels and almost 70% had moderate to very high distress levels (68�5%)� it also reported that law student distress was higher than that of other university students and higher than a sample of the general population� while some studies have pointed the way to possible causes of this phenomenon, no study has been able to conclusively identify them� they include some key australian studies� the first is a study by tani and vines� it showed that law students were more competitive, less interested in their studies, more focused on grades and more likely than their peers in other disciplines to have been influenced by others in the choice of their field of study� from this it was inferred that law students may have certain personal characteristics including lack of autonomy and lack of social connectedness27 which might be indicators of depression or depressed thinking�28 it is often asserted that in addition to these characteristics, lawyers and law students are perfectionists or tend towards perfectionism and this is referred to in the tani and vines study� they define this characteristic as one in which people have ‘high and unrealistic standards combined with relentless self-criticism’�29 this characteristic has been said to contribute to the emotional distress of both law students and legal practitioners�30 in a later study, researchers from the university of melbourne considered both intrinsic reasons for studying law (such as personal interest) and non-intrinsic reasons for studying law (such as parental pressure or perceptions of the status of being a lawyer)� their results supported the view that increased psychological distress in law students is ‘associated with increases in non-intrinsic reasons for studying law’31 and that the law school experience might re-orient students away from 27 tani and vines, supra note 2, at 25� 28 tani and vines, supra note 2, at 30� 29 tani and vines, supra note 2, at 28� 30 paul r verkuil & terry h kang martin e p seligman, why lawyers are unhappy, 10 deakin law review 49(2005) at 54� 31 larcombe et al� supra note 2, at 16� 466 international journal of clinical legal education issue 20 intrinsic to non-intrinsic reasons�32 those researchers have undertaken a further study which has just been published�33 the research looked at the factors (both personal and course-related) that might be contributing to law students’ emotional distress� those factors were studied both in relation to the level of distress (moderate and severe) and also in relation to the different forms of distress (depression, anxiety and stress)� one of their major findings was that different factors were associated with the different levels of distress and for each form of distress� this research supports the notion that many different initiatives will be required to respond to law student psychological distress� it also provides (for the first time) very valuable data to support law education institutions in developing targeted initiatives with respect to the various forms of law student distress and associated factors (many examples of which are provided in the paper)� at the australian national university researchers found a significant shift in students’ thinking styles in their first year at law school� specifically, there was a decrease in their experiential (intuitive) thinking and a corresponding increase in their rational (analytical) thinking� the authors looked at the relationship between this shift in thinking styles and depressive symptoms and concluded that for the survey group: 32 larcombe et al� supra note 2, at 20� the university of melbourne reseach and that of tani and vines draw significantly upon the work of sheldon and kreiger: see sheldon and kreiger, education, supra, note 2 and sheldon and kreiger,understanding, supra, note 2 and self-determination theory� that theory and its application in the work of sheldon and kreiger has been neatly summarised as follows: ‘why do motivations and values as— people’s reasons for engaging in activities — affect wellbeing? according to self-determination theory (‘sdt’), external motivations and values tend to reduce or impair people’s experiences of autonomy, competence and relatedness to others� experiences of autonomy, competence and relatedness are known to be basic psychological needs, essential for positive wellbeing� sheldon and krieger’s……��research was designed to test sdt’s capacity to explain high levels of psychological distress among law students and their findings confirm the soundness of the underlying theory: that ‘psychologicalneed deprivation appears to be a principal source of human distress’’, see larcombe, supra note 2, at 4� a later university of melbourne study concludes that its results provided strong support for the work of sheldon and kreiger in explaining law student distress� wendy larcombe and katherine fethers, schooling the blues? an investigation of factors associated with psychological distress amongst law students, 36 unsw law journal 390(2013)� self-determination theory posits that if individuals are provided with what is called ‘autonomy support’ (which in turn supports their psychological needs) that one of the outcomes of providing that support is psychological health and wellbeing � an integrated model of thriving based on self-determination theory was tested in the law school context by sheldon and kreiger: see, sheldon and kreiger,understanding, supra, note 2 (surveying students at two law schools)� the study found that the provision (at one of the law schools) of greater perceived autonomy support predicted greater needs satisfaction (autonomy, competence and relatedness) in its students� that greater needs satisfaction led to ‘higher subjective well-being relative to baseline’ (although it should be noted that the subjective wellbeing of students from both law schools declined during law school attendance), id� at593� the application of self-determination theory to clinical legal education and, in particular, meeting the needs of students for autonomy, competence and relatedness through clinical legal education has been considered� wortham et al argue that clinical legal practice might provide students with improved autonomy support and discusses ways in which this might be achieved� leah wortham, katherine f� klein, beryl blaustone, autonomy-mastery-purpose: structuring clinical courses to enhance these critical educational goals, 18 international journal of clinical legal education 105� 33 larcombe and fethers, supra note 29� 467 promoting law student mental health literacy and wellbeing: a case study from the college of law, australia a propensity towards experiential thinking is a stronger overall predictor of lower levels of depressive symptoms. less experiential-thinking students showed a statistically significant heightened level of depressive symptoms in the end-of-year group34 all of these studies demonstrate the effort being made to understand the characteristics of law students and their mental health� further research continues to be undertaken to identify the causes of law student emotional distress and the contribution to that which is made by the law school experience� as noted earlier, the bmri report found that 35�4% of law student respondents were suffering high or very high levels of emotional distress� it was also reported that almost half of the law students surveyed reported that they had suffered depression (46%) and that of those (23%) had been treated for it�35 the bmri study also asked questions aimed at finding out about participants’ understanding, and self-awareness, of depression� the study surveyed both legal practitioners and law students� some of its key findings were that: • both law students and legal practitioners surveyed tended not to be able to recognise the most commonly identified symptoms of depression36 • law students appeared to have less understanding of the symptoms of depression than medical students and that consequently that they might not be as able to readily identify depression when it occured in themselves or their peers37 • more than one in five law students thought that depressed people were dangerous to others38 • about 20% of participants (both legal practitioners and law students) thought that their friends or family might discriminate against them if they experienced depression – this rose to over 50% in relation to the attitudes of employers39 • over 30% of the participants said that they would not seek help from any professional if depressed and for students that figure rose to 39�4%40 • over one third of participants who reported having experienced depression also reported never having sought information about it41 • a majority of participants expressed mixed views about depressed people�42 there are three clear conclusions that might be drawn from this bmri material in relation to law student literacy about depression� the first is that some law students have difficulty in identifying 34 o’brien, supra note 3, at 165�, 35 see also leahy, et al�, supra, note 3 at 612; leahy reported that 12% of law students had been treated for mental illness� 36 bmri report supra note 1, at 39� 37 bmri report supra note 1, at 39� 38 bmri report supra note 1, at 31� 39 bmri report supra note 1, at 30� 40 bmri report supra note 1, at 20� 41 bmri report supra note 1, at 26� 42 bmri report supra note 1, at 40� 468 international journal of clinical legal education issue 20 the symptoms of depression� secondly, a significant proportion of law students would not seek professional help if depressed (39�4% in this study)� thirdly, many of them held negative, stigmatising views about those with depression� the authors went on to argue: these views might well have a strong detrimental effect on their attitudes towards their own depression and help-seeking behaviour, and towards any peers or employees who approach them for support regarding psychological distress43 it was findings such as these which formed the basis of our conclusion that mental health education would be of real benefit to law students and informed the development of an intervention as part of the college’s plt program� there is arguably a clear role, or at least opportunity, for legal education institutions to develop educational responses aimed at addressing the stigma attaching to mental illness, providing information about common mental illnesses and influencing the help seeking behaviours of law students�44 the bmri report itself indicated that ‘[p]rimary strategies for intervening to improve mental health outcomes of legal educational institutions include: increasing legal educators’ and students’ awareness of mental health issues’�45 before proceeding further, it should be made clear that the college is not a university law school, although it is a provider of post graduate education (other than a juris doctor degree) to the legal profession� part of its core business is to provide practical legal training to law graduates prior to their admission to legal practice� the college educates about 2,400 students a year in this program� the college’s plt program includes coursework of 15 weeks duration for fulltime students and 30 weeks for part time students� the coursework component of the training is delivered by way of blended learning, being a combination of online and small group tuition� students attend the college for three separate weeks of classes (onsites) aimed primarily at skills acquisition (and also assessment)� there is also a work experience component which requires students to complete 15 weeks work in a legal workplace (broadly defined) supervised by a practicing lawyer� the work experience component is somewhat similar to university clinical legal education programs offering law students experiential learning opportunities� as foreshadowed in the introduction, we will go on to write in detail about a mental health initiative developed by the college for its students� as college plt courses are of short duration it has only been possible for us to design and deliver an educational intervention of three hours 43 bmri report supra note 1, at 40� 44 as we write this paper (13 august 2013) a student rang one of us to ‘apologise’ for having to talk about a recently developed anxiety condition with accompanying panic attacks, about which the student was ‘embarrassed’� incidents like this, involving students suffering internalised stigma and shame, continue to underline the need for mental health education of law students� 45 bmri report, supra note 1 at viii� the concil of australian law deans has recently adopted as best practice that law schools ‘ to actively educate and and disseminate information around the issues of mental illness and student distress with staff and students’� see promoting law student well-being good practice guidelines for lawschools at http://www�cald�asn�au/assets/lists/resources/promoting%20law%20student%20wellbeing%20good%20practice%20guidelines%20for%20law%20schools�pdf accessed 11 december 2013� 469 promoting law student mental health literacy and wellbeing: a case study from the college of law, australia (initially two and a half hours)� many of the interventions we review in this article are of longer duration than that of the college� the appropriate length of any intervention will continue to be the subject of research and discussion� university law schools, which would normally have their students enrolled for at least three years have the opportunity to design and implement more substantial interventions� nevertheless, we argue that useful lessons for legal education institutions generally arise from the design and implementation of the college’s intervention� 2.2 the value of mental health literacy whilst much work is being done to review and renew the law school experience and curricula, in light of the literature referred to in the earlier part of this paper, the issue of the mental health of law students might also be considered from a health perspective� in that regard, it is useful to consider the literature on health education� health education is now generally seen as an element of what is defined as health promotion, together with the elements of prevention of disease and health protection�46 one of the aims of many health interventions, including health education, is to develop health literacy in the target population� a definition of health literacy is now included in the who health promotion glossary and is as follows: health literacy represents the cognitive and social skills which determine the motivation and ability of individuals to gain access to, understand and use information in ways which promote and maintain good health47 good health includes good mental health� or, as is articulated by the world health organisation; ‘mental health is an integral part of health; indeed, there is no health without mental health’�48 in relation to the development of health literacy more generally, nutbeam suggests that there are three levels at which it works�49 the first he calls ‘functional health literacy’ which is promoted by traditional education and the communication of ‘factual information on health risks, and on how to use the health system’� the second is ‘interactive health literacy’ focused on ‘the development of personal skills in a supportive environment’� the third is ‘critical health literacy’ which supports cognition and skills in and around identifying the social determinants of health and looking at effective social and political action� nutbeam also argues that increasing health literacy in a greater proportion of the population also brings social benefits�50 later in the paper we argue that this analysis might assist legal education institutions by providing a framework to inform the design of mental health education programs for law students� in the specialised field of mental health, the more specific term of ‘mental health literacy’ is used� 46 see who health promotion glossary at, http://www�who�int/healthpromotion/about/hpr%20glossary%20 1998�pdf accessed 26 september 2013� 47 id. 48 see who factsheet at, http://www�who�int/mediacentre/factsheets/fs220/en/ accessed 6 september 2013� 49 don nutbeam, health literacy as a public health goal: a challenge for contemporary health education and communication strategies into the 21st century, 15 health promotion international 259, 265 (2000)� 50 id.at 264, 470 international journal of clinical legal education issue 20 this term was coined in 1997 by jorm and others and is defined as ‘knowledge and beliefs about mental disorders which aid their recognition, management or prevention’�51 the terms ‘health literacy’ and ‘mental health literacy’ are not well known in legal education institutions and the legal profession� jorm argues that if a person has a mental health problem and they are able to recognise it as a mental disorder then they are more likely to seek help� he refers to a study by wright et al from which the following conclusion is drawn: ‘young people who recognise a disorder in a scenario tend to have better help seeking and treatment preferences’�52 he goes on to say that in order for people, who are able to identify a disorder in themselves or others, to get effective help (or refer others to effective help) they also need to know where professional help might be obtained� these are key insights which might inform initiatives seeking to develop the mental health help-seeking behaviours of law students� these ideas have received further support in a recent australian study of university students and university staff� in that study, the participants were given a vignette containing a description of a person suffering a common mental illness� the results showed that a capacity by participants to identify the common mental disorder was ‘associated with greater likelihood of seeking professional help’�53 the concept of mental health literacy extends further to encompass first aid behaviours� based on these principles, mental health first aid (mhfa) was developed by kitchener and jorm in 2001 and was aimed at teaching mental health literacy including first aid behaviours to nonhealth professionals in 12 to 14 hours of face to face tuition�54 the mhfa program has now been evaluated a number of times using both controlled and uncontrolled trials�55 the authors concluded from two controlled trials that there were consistent positive benefits from the program� one of the findings of the studies was that the course led to a decrease, in participants, in stigmatising attitudes�56 given the findings of the bmri study, decreasing stigmatising attitudes should be an important aim in developing any mental health initiative for law students and this study demonstrates that the teaching of mental health literacy has the capacity to do this� the argument has been made in australia that tertiary students should be encouraged to undertake mhfa training, particularly its first aid component, as it has been shown that for university students with mental health concerns the most popular self-help strategy is to talk to a friend�57 it stands to reason that the more mental-health literate that friend is, the more scope there is for appropriate assistance to be given� conversely, the less mental-health literate the friend, the higher 51 a� f� jorm, mental health literacy: empowering the community to take action for better mental health, 67 am psychol 49 (2012)� 52 id. at 3� 53 reavley et al�, supra note 13, at 159� 54 we are aware that a new mode of delivery is being developed for mhfa in order that it might be undertaken predominantly online� 55 betty a� kitchener and anthony f� jorm, mental health first aid training: review of evaluation studies, 40 australian and new zealand journal of psychiatry, 6, 7 (2006)� 56 in the u�s� providing mhfa to teachers and others who interact with young people is part of president barack obama’s plan to reduce gun violence, see plan at 14, http://www�whitehouse�gov/sites/default/files/docs/ wh_now_is_the_time_full�pdf accessed 9 august 2013� 57 reavley et al�, supra note 13, at 163-164� 471 promoting law student mental health literacy and wellbeing: a case study from the college of law, australia the risk that the friend will either fail to recognise the signs of mental illness or emotional distress or suggest appropriate help� in summary, scientifically based health promotion is globally acknowledged as an appropriate response to health issues� in the area of mental health, health promotion has many potential positive benefits� providing students with good information about mental illnesses and their symptoms may give rise to a greater capacity to recognise those symptoms in themselves�58 this then may lead them to have better help seeking and, if good information is provided about where to seek help, to better use of the health system�59 it also has the capacity to lessen stigmatising attitudes�60 with appropriate training it can support people to assist others in the midst of a mental health crisis�61 2.3 the contribution of positive psychology later in the paper, we report our conclusions from having conducted focus groups with law students� in those groups, students were clear that they were interested in approaching mental health issues through concepts such as resilience, wellbeing and the maintenance of good mental health� this raised questions regarding health prevention and positive psychology� the following material looks at some of the growing body of research in these areas, which we found to be relevant to the development of mental health programs for law students, and from which we continue to draw ideas� one of the aspects of health promotion, referred to above, is health prevention� health prevention is said usually to have three different levels – primary, secondary and tertiary� ratzan, in relation to health literacy generally, suggests that the three levels might be described as follows: primary – ‘how do i stay well?’ secondary – ‘how can i detect disease/illness early and treat it appropriately?’ tertiary – ‘how can i live best with illness?’62 in the mental health field the question, ‘how do i stay well?’ has two parts� the first is about avoiding or preventing mental health disorders� the second is about enhancing wellbeing and supporting flourishing� ideas such as these have formed the foundation of the new and emerging field of ‘positive psychology’� seligman, a key figure in the field, says that positive psychology focuses on learning about, and teaching the elements of, positive emotion, engagement, meaning and positive relationships�63 in a review of the growing body of research evidence regarding psychological wellbeing, huppert concludes that ‘[i]nterventions which encourage positive actions and attitudes have an important 58 jorm, supra note, 48� 59 jorm supra note 48, at 3; reavley et al�, supra note 13, at 164� 60 kitchener and jorm, supra note 52, at 7� 61 kitchener and jorm, supra note 52, at 7� 62 scott c� ratzan, health literacy: communication for the public good, 16 health promotion international 207, 212 (2001)� 63 martin e�p� seligman, flourish 12 (william heinemann (australian edition)�2011)� 472 international journal of clinical legal education issue 20 role to play in enhancing well-being’�64 in a very general sense this is what positive psychology is all about – shifting the focus of attention from illness (including preventing illness) to the enhancement of wellbeing� one of the continuing questions for us is: can you teach wellbeing or the enhancement of wellbeing? and can you teach it in a law school? teaching wellbeing (in the contemporary sense), in an educational setting, was pioneered by seligman� the programs that he and his team developed have now been operating for more than 20 years� one of these programs, the penn resiliency program (prp), has been positively evaluated against control groups more than 17 times�65 the prp is aimed at developing in adolescents, the ability to handle day to day stressors and the stressors particular to their time of life� it is delivered over a number of classes (12 of 90 minutes or 18 of 60 minutes)66 and covers resilience concepts and skills, including coping and problem solving skills�67 the evaluations have shown that the program prevents clinical levels of depression and anxiety, reduces the symptoms of those conditions, prevents anxiety and reduces hopelessness�68 we note here that one of the recommendations of the bmri report was that ‘law students and legal professionals need to be made aware of, and prepared for, normal forms of stress in the normal workplace’�69 we would add to that; and to the stresses involved in law school education. the prp may provide good support to legal education institutions seeking to implement mental health and wellbeing programs as it provides an example of a program which is preventative with respect to some forms of mental illness in an educational setting and because it is also particularly aimed at teaching young people to handle stressors� it has already been proposed that positive psychology in support of student wellbeing in various 64 felicia a huppert, psychological well-being: evidence regarding its causes and consequences, 1 applied psychology: health and well-being 137, 154 (2009)� also of interest from an educational perspective is huppert’s additional conclusion that the science now shows that people with positive emotions tend to function better in life� this extends to (most forms of) cognition including having more flexible and creative thinking� this alone would seem to be a good reason for teaching some forms of positive psychology in universities� 65 martin e� p� seligman, randal m� ernst, jane gillham, karen reivich and mark linkins, positive education: positive psychology and classroom interventions, 35 oxford review of education 293 (2009)� seligman has also developed a program of more general positive psychology for adolescents called the positive psychology program� this program is based on signature strengths training together with interventions to promote ‘resilience, positive emotion and students’ sense of meaning or purpose’� the program was taught to year 9 high school students in america� the students attended about 25 classes each of 80 minute during a school year� on evaluation it was found that the program had been shown to increase students’ reports of their own engagement in school and their social skills� however, it appeared to have no effect on students’ reports of their experience of depression and anxiety� in an even more ambitious program seligman and his collaborators are working with geelong grammar in australia to not only teach positive psychology to students but to embed it throughout the school curriculum� the elements of the positive psychology skills which are taught to students are ‘resilience, character strengths, gratitude, positive communication, optimism’� at the time of his writing no evaluations of this initiative were available, id at 302� 66 see, penn positive psychology center at, http://www�ppc�sas�upenn�edu/prpsum�htm accessed 7 february 2013� 67 seligman et al�, supra note 60, at 297� 68 seligman et al�, supra note 60, at 298� 69 bmri report supra note 1, at 49 � 473 promoting law student mental health literacy and wellbeing: a case study from the college of law, australia forms be taught as part of the law school curriculum�70 for example, peterson and peterson propose the teaching of learned optimism, the building of positive emotion and the use of strengths theory to law students�71 as part of their research they ran a trial of the use of strengths theory at the george washington university law school� strengths theory is based on the notion that each person has personal strengths and qualities and that by identifying those strengths and using them in a conscious way, a person will thereby promote their wellbeing� this empirical study found a correlation between how often students used their top strengths in their daily lives and the three measures of wellbeing tested (satisfaction with life, stress measures and depression measures)�72 peterson concluded that, theoretically, a university law school program including formal curriculum, which incorporated and focused on strengths theory might be able to provide a ‘buffer against psychological distress’�73 the use of strengths theory has been empirically shown more generally, in other studies, to lead to increases in wellbeing�74 in australia, it has been argued that law school curricula should include programs to increase students’ levels of psychological literacy particularly through the use of strengths theory� james also proposes that instruction should include emotional intelligence training and mindfulness�75 mindfulness is an intervention particularly mentioned by huppert as supporting wellbeing� it is defined as including ‘bringing one’s complete attention to the experiences occurring in the present moment, in a non-judgemental or accepting way’�76 mindfulness has its origin in the spiritual practices of buddhist meditation, and in recent times these have been adapted for secular use� hassed et al� explain mindfulness in the following way; mindfulness involves attention regulation and being in the present moment. it is based on the premise that while both pleasant and unpleasant experiences arise in daily life, the habit of judging or resisting those experiences heightens their impact. thus acceptance is also a core element of mindfulness practice. mindfulness meditation is the cornerstone of fostering mindfulness in day-to-day life. 77 mindfulness practices have been specifically adapted for stress management in a program known 70 see for example, peterson and peterson, supra note 2; james, supra note 5� 71 peterson and peterson, supra note 2, at 395-408� 72 peterson and peterson, supra note 2, at 411� 73 peterson and peterson, supra note 2, at 414� 74 see alex m� wood, et al�, using personal and psychological strengths leads to increases in well-being over time: a longitudinal study and the development of the strengths use questionnaire, 50 personality and individual differences (2011)� 75 subsequently james and others tested the relationship between emotional intelligence and psychological wellbeing� they found that ‘personality subsumes any effect of ei on our wellbeing’� colin james, miles bore and susanna zito, emotional intelligence and personality as predictors of psychological well-being, 30 journal of psychoeducational assessment 425, 435(2012)� 76 r� a� baer, et al�, using self-report assessment methods to explore facets of mindfulness, 13 assessment 27, 27(2006)� 77 c� hassed, et al�, enhancing the health of medical students: outcomes of an integrated mindfulness and lifestyle program, 14 adv health sci educ theory pract 1, 3 (2009)� 474 international journal of clinical legal education issue 20 as mindfulness-based stress reduction (mbsr)� we have noted that stress management has been identified as an important skill for law students� in 2011, keng examined 17 randomised controlled trials of mbsr (a number of which were studies involving american college undergraduates) and found that, overall, benefits included reductions in self-reported levels of anxiety, depression, anger, general psychological distress (including perceived stress), improvement in positive affect, empathy, satisfaction with life and quality of life�78 in other words, its effects are both potentially preventative or ameliorative with respect to emotional distress and supportive of enhanced wellbeing� an example of a program aimed at enhancing student wellbeing and teaching mindfulness based stress management in an australian higher education setting is provided by the faculty of medicine, nursing and health sciences at monash university (monash)� first year students as part of their core curriculum undertake a program entitled the health enhancement program (hep) which includes mindfulness based stress management and lifestyle programs�79 it is conducted by way of eight lectures and six two-hour small group tutorials� in 2006, 148 students in this course were surveyed twice during their first year of study (at the beginning and the end of a six week period)� the researchers concluded that the data suggested that ‘self-care in the form of mindfulness-based stress management and lifestyle programs can improve student wellbeing’.80 in particular, the study showed that the symptoms of depression and hostility in the students had decreased over the survey period�81 not only does this program support the notion that wellbeing can be taught, it also provides an example of the provision, in a university setting, of mindfulness based stress reduction as part of the core curriculum� mindfulness programs are being run at a significant number of u�s� universities�82 an example is provided by the extensive programs run at the university of miami, school of law (miami)� mindfulness is taught at miami in stand-alone subjects and also as part of more traditional subjects including professional responsibility and succession� additionally, it forms the core of many extracurricular courses and activities� looking at the range of offerings suggests that mindfulness has become a facet of the culture of the law school� as yet this approach has not been evaluated� education in positive psychology or wellbeing as part of health promotion is relatively new, as is the science of wellbeing� when designing mental health interventions for law schools, a range of established programs will be considered� two being used in law schools are interventions based on strengths theory and mindfulness based programs� both have been evaluated (although primarily with groups other than law students) and have been found to have ameliorative effects on emotional distress and to enhance wellbeing and thus should be considered by curriculum designers� 78 shian-ling keng, et al., effects of mindfulness on psychological health: a review of empirical studies, 31 clinical psychology review, 1042, 1044-1045 (2011)� 79 c� hassed, et al�, supra note 74, 4-6� 80 c� hassed, et al�, supra note 74, 9� 81 c� hassed, et al�, supra note 74, 8� 82 see for a list of many of them, scott l� rogers, the mindful law school: an integrative approach to transforming legal education, 28 touro law review 1189, 1190 at note 5 (2012)� 475 promoting law student mental health literacy and wellbeing: a case study from the college of law, australia if one accepts the bmri report’s recommendation in relation to preparing students for the stress of practice any such intervention should contain a significant element dealing with stress management� 3. intervention – development, design and implementation 3.1 background and the need for change the catalyst for change for the authors of this article was their attendance at the first of the annual public lectures in 2006 organised by the tristan jepson memorial foundation (tjmf)�83 the tjmf was established by the parents of tristan jepson, a former law student at the university of new south wales (unsw) who took his life at age 26 after a period of suffering from severe clinical depression� in discussions subsequent to his tragic death, tristan’s parents discovered a culture of secrecy among some of tristan’s friends who also suffered depression but had not sought help for it� the aims of tjmf include finding ways to address the causes of depression and anxiety in the legal profession� at the outset tjmf focused on two initiatives, one for law students and the second an annual public lecture targeting the legal profession� as with several of the participants, we were prompted to consider what the first annual public lecture meant for us� the college plt program seeks to prepare law graduates for practice� our initial question was; is there an educational role in preparing law graduates for practice from a mental health point of view? 3.2 consultation phase 3.2.1 consultation within the college and the profession for three years we consulted informally and formally with the lecturers at the college� in november 2009 we invited a number of key external stakeholders to join lecturers at a meeting, to consider the educational needs of the college’s plt students in light of the developing concerns about the mental health of law students and lawyers� this group subsequently formalised into the consultative committee�84 it comprised representatives from the college, new south wales law society, new south wales bar association, lawcare,85 lawcover,86 a leading university law school, the bmri, two national law firms, beyondblue,87 a psychiatrist, a social worker and the tjmf� in essence, the committee took the view that there was a need to provide law students with mental health training� 83 see tjmf webpage at, http://www�tjmf�org�au/ accessed 11 september 2013� 84 this college meeting took place in nov 2009 85 lawcare is a professional and confidential counselling service for solicitors and their immediate family members run by the law society of nsw� it is also available in other australian states� 86 lawcover underwrites compulsory professional indemnity insurance (pii) for solicitors and provides other insurance services� 87 beyondblue is the national depression organisation 476 international journal of clinical legal education issue 20 3.2.2 depression and anxiety working group arising out of the discussions with the consultative committee, the college was invited to join the managing partners’ depression and anxiety working group (dawg)� this group was established by managing partners at five major law firms88 to try and address the increasing incidence of depression and anxiety among lawyers in australia� the group met regularly and worked collaboratively on, what was decidec to be, an educational response� as a member of dawg, the college became involved in the final design and production of a short film on mental health in the legal profession in australia entitled resilience@law (the short film)�89 we were also given access to information from member firms of dawg some of which had conducted focus groups of new lawyers within their respective firms� figure 1: consultation phase of workshop development 88 allens, blake dawson now ashurst, clayton utz, freehills now herbert smith freehills, mallesons now king & wood mallesons 89 the college has subsequently taken responsibility for the ongoing distribution of the short film resilience@law to legal institutions and individuals working in law� it is made available free of charge subject to agreement as to use� graduate law students focus groups with students lecturers college of law academic board college of law management consultative committee depression and anxiety working group (dawg) australasian practical legal education council (aplec) 477 promoting law student mental health literacy and wellbeing: a case study from the college of law, australia 3.2.3 australasian professional legal education council (aplec)90 an aplec conference is held annually and includes attendees mainly from australia and new zealand but also from south east asia and the pacific� during the consultation phase this provided us with a forum to present on aspects of our developing thinking and to generate discussion within the aplec community� as awareness of the problem grew so did the interest of aplec conference attendees� 3.2.4 law student focus groups law graduates enrolled in the college’s plt program are our key stakeholders and as such it was very important to obtain their input on any proposed component of the caaiculum� we wanted to hear their observations of legal education and the legal workplace and explore with them their perceptions of what a workshop on mental health for law graduates should include and what would be of most interest and benefit to them� three focus groups with students were held to obtain this information� the focus groups were facilitated by a college lecturer together with law firm representatives of dawg (each of them being a human resource professional)� the process involved generation of discussion by asking a series of trigger questions and then encouraging a free flow of discussion around the issues� 3.2.5 outcomes of the consultation phase a number of conclusions were drawn following this comprehensive and lengthy consultation phase, namely that: • the need we perceived in 2006 for the education of law graduates about mental health issues was confirmed; • it was appropriate for the college to include such education in its plt program, placed as it is between law school and legal practice; • such education should be part of the core national curriculum to ensure a broad reach and impact,91 noting that the issues would in one way or another impact most if not all graduates at some stage in their careers (or in life); • a key issue for the college was deciding who was to teach any such training; and • law graduates enrolled in the college’s plt program wanted any such education to approach mental health issues from a positive point of view, including information on how to remain well and build and maintain resilience� 3.3 benchmarking we also investigated what other legal educational institutions in new south wales were providing by way of wellbeing and mental health training� there were a number of initiatives that we became 90 aplec represents all professional legal training courses in australia, new zealand and the asia pacific region� 91 about 2400 students per year complete the college of law plt program� 478 international journal of clinical legal education issue 20 aware of including, the university of wollongong law school’s vitality for life program,92 the unsw law school lawplus program, the macquarie university law school’s peer assisted learning program (pal),93 and the faculty of business and law at the university of newcastle’s peer assisted study sessions (pass)�94 all these programs are voluntary and, with the exception of wollongong’s vitality for life and law program, all are peer assisted programs� however, although some address life and work or study skills, more often the focus is on course content and study skills rather than on developing psychological resilience and gaining awareness about mental health issues� our early thinking was to design and implement a program similar to the vitality for life and law program but which would be compulsory for all students in the college’s plt program� that intervention, we planned, would focus on positive health and wellbeing and mental health literacy and be taught by appropriately trained facilitators� 3.4 design phase 3.4.1 mental health education as part of the core curriculum the psychological distress of law students and lawyers is a matter of significant concern requiring a proportionate response�the college took the view that mental health education should be a part of the core curriculum so that it might have a broad impact and maximum effectiveness for all students� in early 2010, the college committed to developing a program of mental health education as a compulsory part of the curriculum for incoming plt students� 3.4.2 designing the intervention the design phase led to the development of the resilience and wellbeing for lawyers component of the college’s plt program� our aims in designing the workshop were to support student wellbeing, particularly in providing stress management training, to provide mental health education including the provision of resources to support appropriate help seeking and to address the stigma attaching to those having a mental illness� at the outset, it was important to identify that the new training would align with the plt competency standards for entry level lawyers as prescribed by the rules of the supreme courts of 92 it aims to provide students with the opportunity to learn life and work skills which will enable them to thrive in their personal and academic life and to build a successful and sustainable career in the legal profession� the program involves a commitment to a series of evidence based interactive and experiential one hour weekly seminars which focus on strategies for minimising stress, maintaining a healthy lifestyle, enhancing physical health and wellbeing, building a supportive environment, developing psychological resilience, communication skills and reflective learning skills, strengthening emotional intelligence and self-awareness� 93 the learning sessions are run weekly for one hour and are peer facilitated, student supported and voluntary� the session reviews the weekly material, both lecture and tutorial, focusing on elements the pal participants want to discuss and revisit and integrates course content with study skills and exam preparation� see pal information at ,www�arts�mq�edu�au/current_students/undergraduate/peer_assisted_study_sessions accessed on 18 september 2012� 94 the pass program consists of one hour weekly review sessions which provide students with an opportunity to compare notes discuss difficult concepts and review weekly materials in an informal setting� the sessions are conducted by pass leaders who are students who have already completed the course and who have excelled in their results� see pass information at, www�newcastle�edu�au/faculty/business-law/for-students/current/pass/ accessed 18 september 2012� 479 promoting law student mental health literacy and wellbeing: a case study from the college of law, australia the various states and territories� the competencies included standards for work management and business skills and ethics and professional responsibility95 and we concluded that the new training would align with these� as we did not have prior training in mental health or psychology and in order to educate ourselves prior to designing the new training, we completed a mhfa course� the training provided by that course is designed to enable delivery of mental health training by non-health professionals to nonhealth professionals� one of the key aims of the mhfa course is to make it broad-based so as to reach as many people as possible while still maintaining appropriate standards� this approach was an important discovery for us and was a turning point in our thinking� we realised that it was possible for law lecturers (as non-health professionals) to be trained to deliver mental health information to the college’s non-health professional law graduates� as the college did not have the resources to carry out the full design and preparation of materials for the new training, it was decided to consult and collaborate with a professional mental health educator� the person we approached was (at that time) a professional mental health educator and a former lawyer�96 figure 2: inputs for and influences on workshop design 95 see aplec competency standards at http://www�aplec�asn�au/pdf/competency_standards_for_entry_level_ lawyers�pdf accessed 11 september 2013 96 susan goldie – mental health educator and trainer of mhfa trainers� resilience and wellbeing for lawyers aplec competencies naming dawg mental health first aid (mhfa) course mental health educator and consultant focus groups benchmarking 480 international journal of clinical legal education issue 20 a key issue for us was what mode of delivery should be used� we felt strongly that, as it was to involve mental health and self-care skills training, it should be taught face-to-face� however, the plt onsite programs were already very full� given the time constraints it was agreed, after much discussion, that the new training would take the form of a two and a half hour workshop97 to be conducted during an onsite in small groups of up to 20 students� having decided on the workshop format, consideration was given to assessment� it was decided that the workshop would require attendance and adequate participation and that it would be graded as satisfactory/unsatisfactory� this was considered appropriate given that the aims of the workshop and the nature of the material covered lend themselves to a non-threatening and noncompetitive environment� this approach was also consistent with the college’s policies relating to other areas of skills training (for example advocacy and negotiation)� given that law lecturers would facilitate the workshops, as a design principle, it was also important to acknowledge the limits of what could be taught by them as non-mental health professionals� a lecturer’s role in the workshop was determined to be one of providing information and facilitating discussion and not one of counselling or advising� this was a strong focus of lecturer training� we chose to call the workshop ‘resilience and wellbeing for lawyers’ to reflect the student preference expressed in focus groups, for mental health material to be introdueced by way of concepts such as resilience and wellbeing� throughout the design process we were supported by and drew from the many ideas that had been offered to us during the consultation phase including the dawg and the materials they provided, the focus groups and the input of the consultative committee� by late 2010 we were ready to run the first pilot workshops� 4. the workshop: resilience and wellbeing for lawyers 4.1 elements 4.1.1 teaching method as the workshop is taught in small groups, the teaching spaces are set up so that students can work flexibly in groups of four-five and also as a whole group� in the workshop, the lecturer takes the role of facilitator, provides information and more importantly opportunities for discussion in both small groups and as part of the whole group� a key task for the lecturer is to develop a supportive environment in which to do this� students are encouraged to raise any questions they have or concerns with the facilitator during or after the workshop�98 97 the workshop is now 3 hours� 98 at the outset we were concerned about how to respond to a student becoming upset in class� in order to manage this we now have in place a backup system involving having a lecturer with mhfa training outside class designated as a ‘go to’ person should the need arise� the lecturer, if the need arises, can take the student to the ‘go to’ lecturer and return to class� fortunately this backup has been needed in less than a handful of cases� 481 promoting law student mental health literacy and wellbeing: a case study from the college of law, australia it was initially envisaged that a co-facilitation model be adopted for the workshop� this model is considered to have advantages for the facilitators who can complement and support each other and for the students who have the benefit of a diversity of perspectives and styles� such an approach would also have the benefit of modelling of collaborative behaviours� however in light of the number of courses and students being taught this has not been possible to achieve� 4.1.2 materials working with our consultant, it was decided that the student materials would take the form of a workbook and that lecturers would be supported by print and online resources� the workbook99 was designed to be used in the workshop and for students to take away and use in the future at work or at home� it includes a mix of information, discussion points, activities and other resources� students are encouraged to reflect on the material covered in the workshop and what they might take away and adopt from it in their daily lives and also to complete the workbook activities not covered in class� they are also encouraged to retain the workbook as a useful resource� 4.1.3 content part of the college’s workshop seeks to educate students about common mental illnesses and their symptoms through discussion, supported by the workbook� students’ learning is further enhanced by viewing the short film in which lawyers graphically describe their lived experience of mental illness� the workshop then covers appropriate help seeking� again this is undertaken though discussion supported by the workbook, which provides material about the sources of appropriate assistance and lists other resources (mainly online resources)� 99 a copy of the index to the workbook is appendix 1 482 international journal of clinical legal education issue 20 figure 3: workshop and workbook structure conceptually we use the term ‘resilience’ in two ways� the first is that of considering resilience as a preparation for challenge� here students are asked to consider the important elements of good mental health which include a full range of emotional responses, important relationships and a range of personal resources to support their overall wellbeing� we also consider the nature of resilience and the resources we have or may develop to support resilience� students complete activities in class (or at home) that support the development of proactive steps or strategies to build or maintain resilience� resilience is then considered in the context of that which we require when responding to challenge� this is considered in terms of our cognitive, emotional and behavioural responses to challenge, particularly stress� the concept of stress, both good and bad, is explored and warning signs of negative stress are considered� students complete activities which look at what causes stress at work, realistic thinking, managing stress and time management� these all support the development of strategies to help students manage stress� the workshop then moves to a discussion of what occurs when the individual’s resources and resilience are not enough� we commence to work with a definition of mental illness and provide information about the way that it impacts a person’s whole being; emotions, cognition, behaviour and physical wellbeing� depression, anxiety and substance misuse are discussed as they are the most common mental illnesses suffered by australians (and commonly coexist)� signs that a resilience what is resilience? what is good mental health? preparing for challenge what supports our resilience? strategies and resources stress strategies and resources having a conversation about mental health mental illness (depression, anxiety and substance misuse disorder) responding to challenge 483 promoting law student mental health literacy and wellbeing: a case study from the college of law, australia person who has depression, anxiety or a substance use disorder (or a combination of these) might exhibit at work are discussed, together with statistics on common mental illnesses in the broader australian community and the associated poor rates of help seeking� the workshop is underpinned by the short film� lecturers can use their discretion as to when this should be played, but our experience has shown that it is effective to play the short film prior to any discussion on mental illness� this is because it provides stories from real life describing what depression, anxiety and substance use disorder can look like more generally and in the workplace� the short film can be confronting but, in our experience, is ultimately uplifting� it sends a message of hope that collectively and individually we can reduce the impact of common mental illness at work and at home�100 components on how to talk about mental health concerns (our own or another’s), being an effective listener and getting help for a mental health concern are also covered� finally, reference is made to the part of the workbook which includes information on types of professional help available and other related resources� 4.2 implementation 4.2.1 pilot workshops prior to rolling out the workshop nationally we conducted two pilot workshops� on both occasions the workshop worked well� informal discussions with the students prior to and during the workshops helped us to further develop our approach� for example, on the basis of feedback from the first pilot workshop, in the second pilot workshop we made it clear at the beginning of the workshop that there was neither a requirement nor expectation that students would make personal disclosures during the workshop� following each of the pilots there was further fine tuning of the content and the ordering of activities� we also asked the students who participated in the pilots to complete an evaluation� the responses were overwhelmingly positive in relation to both the relevance of the material and presentation of the workshop� 4.2.2 timing the workshop was initially placed towards the end of an onsite week, prior to a number of assessments� however the challenge was that the attention of some students was significantly diverted towards their assessments, and after careful consideration the workshop was moved in the timetable to the first day of the second face-to-face intensive onsite week, where the focus was on teaching and learning rather than on assessments� the workshop is therefore now scheduled approximately two-thirds through the plt program, and it has been observed that students are more able to focus on the workshop at this time� 4.3 law lecturers as mental health educators formal expressions of interest were called from lecturers who would be interested in presenting the workshops� consideration was given to these, as well as the level of interest and enthusiasm the lecturers had expressed more informally about the workshop during the consultation and design phases� for the first intake of lecturers to teach the workshop, consideration was also given to the 100 in fact students in evaluations most often cite the short film as the aspect of the workshop that they most like� 484 international journal of clinical legal education issue 20 attributes of lecturers most appropriate to teach it� as the workshop became more accepted as a normal part of the plt program some lecturers who had been sceptical or non-committal about its inclusion have come forward actively seeking to train for and teach it� lecturers at the college are drawn from the practising legal profession and do not (with one or two exceptions) have any prior training in psychology or mental health� as stated above, it was important for all lecturers seeking to teach the new workshop to complete mhfa training� completion of the mhfa course would enable lecturers to achieve a level of mental health literacy and assist them to acquire the knowledge and confidence to teach the new workshop effectively and improve their interactions with students generally� after completing the mhfa course lecturers received a further one day of in-house training� this further training was designed to assist lecturers to become more familiar with and competent in using community mental health language, to practise the skills they acquired at the mhfa course and to familiarise themselves with the key concepts of resilience and stress which are pivotal to the teaching of the workshop� lecturers are then guided through the students’ workbook allowing opportunity to explore the student activities in small groups� the overall pace and timing of the workshop was considered� many lecturers expressed their concerns about teaching subject matter outside their ‘comfort zone’� the train the trainer program provided an opportunity to address lecturers’ fears and to manage their expectations about possible student reactions to and in the workshop� examples of difficult questions or conversations that might arise in the workshop are addressed by working through a hypothetical student response scenario and general discussion� more than half the lecturers in the college’s plt program, have now completed the training requirements to teach this workshop� as the majority of lecturers teach across most subjects in the program, the percentage of trained lecturers is expected to grow over time�101 the teaching by the lecturers is supported by lecturers’ resources� these resources include definitions of key terms used in mental health, suggested approaches to setting the context of the workshop, discussion points and resources to support key activities, suggested timetable and copies of relevant articles� ongoing peer support is provided for lecturers in the form of debriefs both formal and informal� periodically there are meetings to discuss content or process issues arising from the teaching of the workshop� this is a valuable opportunity for lecturers to share their experiences and gain insight into ways that particular student questions or concerns have been addressed� following each offering of the workshop at a college there is often an informal debrief among lecturers on how the workshop went on that occasion, any difficulties that arose and how improvements could be implemented� as the workshop is facilitated by a single lecturer there were concerns as to how best manage the workshop particularly if a student became distressed� the solution was to appoint a designated 101 the college operates in six locations and is staffed by lecturers from four campuses� the mhfa training and the train the trainer program were mainly undertaken by lecturers in their own city� with multiple fulltime and part-time general courses offerings of practical legal training through each of the four colleges and numerous other courses offered with large and medium size firms around the country there is a significant and ongoing demand for lecturers to teach this workshop� as mentioned earlier more than 2,400 students are now completing this workshop as part of their practical legal training each year� 485 promoting law student mental health literacy and wellbeing: a case study from the college of law, australia ‘go to’ person whenever the workshop was taught� that person would be an appropriately trained lecturer who would be available to provide support for a distressed student if the situation arose� this would allow the lecturer running a workshop to hand the distressed student to the ‘go to’ person and then continue with the workshop without undue delay� this solution has proved to be effective and there are only three cases, of which we are aware, where this has occurred in almost three years of running these workshops� 5. workshop evaluation and outcomes student evaluations student evaluations were sought across the first six months of workshop implementation and1216 students from all college campuses completed evaluations�102 the response rate was 76�91%, which may be regarded as being relatively high� we think that this rate was achieved because the evaluations were completed and collected in class at the end of the workshop� the evaluation questionnaire included six questions, seeking both quantitative and qualitative responses� in 2011 women comprised 60% of and men 40% of college students� although the survey did not record the gender of respondents we have no reason to believe that it did not accord with the gender balance in the student population for that year� in the same year 80% of our students were 30 years of age or under� in future surveys we intend to gather more specific data about gender and age� this will assist us in further research including differentiating responses by gender� in the evaluation, students were first asked to score the relevance of materials presented in the workshop; 83�06% of students indicated a score of 6 or higher where 0 indicated ‘not at all relevant’ and 10 indicated ‘very relevant’� 102 participant evaluation forms for the workshop are at appendix 2 486 international journal of clinical legal education issue 20 figure 4: student perceptions of workshop relevance second, students were asked to score the presentation of the workshop; 93�09% of students indicated a score of 6 or higher where 0 indicated ‘not well presented’ and 10 indicated ‘very well presented’� 0 0.25% 1 0.90% 2 1.23% 3 2.30% 4 2.63% 5 9.62% 6 10.53% 7 21.79% 8 23.68% 9 10.53% 10 16.53% 487 promoting law student mental health literacy and wellbeing: a case study from the college of law, australia figure 5: student perceptions on how well the workshop was presented from these responses, the comments made by students in answering qualitative questions in the evaluations and from the experience of those teaching the workshop, it would appear that the students perceived the workshop to be highly relevant to them and very well presented� third, students were asked what aspects of the program103 they particularly liked� the responses most commonly referred to the short film (dvd) and the ‘openness’ of the program which suggests that students value the opportunity to discuss mental health issues openly and in a supported environment. student comments included the following: the dvd provided more of a personal approach to the topic. inspiring and motivating to learn about other practitioners experience with depression and anxiety. the dvd. it showed that many people go through it especially in law. makes it feel like it is okay to have these feelings of stress and that you can get help and still continue your career. you don’t need to hide from the world. it was good to be able to talk about the issues of depression and anxiety. opportunities to discuss the issues with people with different experiences. 103 in the evaluations the workshop was referred to as the ‘program’� 0 0.25% 1 0.16% 2 0.49% 3 0.82% 4 1.07% 5 4.11% 6 6.99% 7 18.34% 8 29.11% 9 19.49% 10 19.16% 488 international journal of clinical legal education issue 20 some comments supported the idea that psychological or mental health literacy should be taught at different points in a law student’s life as part of a continuum� all of it. this should be shown at the start of law school and again when people start as grads. fourth, students were asked whether there were aspects of the program they particularly disliked� almost 70% of students did not respond to this question, from which we concluded that the majority of students did not dislike any particular aspects of the workshop� the 30% of students who responded to the question made comments related mainly to timing, structure and length of the workshop, rather than the content� fifth, students were asked whether there was anything else they would like to be included in the program� again, almost 70% of students did not respond� of the approximately 30% who responded a significant number wanted more! they wanted more personal stories (ideally) by guest speakers and they wanted more skills, information, discussion and activities� given the frequency and multiple locations of our workshop offerings it is not possible for us to provide guest speakers at each workshop� these responses from students would support those in legal education institutions seeking to implement longer and more comprehensive interventions� sixth, students were asked about their overall response to the program� the responses were grouped into positive, neutral and negative: 82% of comments were positive, 15% were neutral and 3% were negative� examples of student comments are shown below� discussing the problem of depression openly and with sympathy. gave practical advice on coping strategies and how to help others. delivered well. good that it was delivered by a lawyer with experience. the course is a must. given the statistics and the prevalence of mental illness, this course provides a basis to work from and a help in recognising the signs in yourself before it advances to a level that requires extensive assistance. i think it is fantastic that college of law is running this program. it has heightened my awareness and no doubt others. it is the right time to discuss these issues when many are starting out. i believe the program is extremely relevant and should form a permanent fixture of the college of law it was great it reinforced for me that stress and depression are real and treatable, and that i’m not alone in feeling overwhelmed at times. very useful and informative. has made me aware of the issues, associated with work and personal circumstances and i felt better equipped to deal with a situation should it arise. very positive. i think it is an important subject to have in the overall course. good. made me realise how prevalent mental illness is in the legal profession and helped us learn to deal with these issues rather than be embarrassed or ashamed it is a great program for students to do. it helps them understand how to better cope with stress and anxiety – which i’m sure most students feel when they are fresh out of uni and about to start work in a law firm. about time the legal profession are recognising that people do experience anxiety and depression – well done. 489 promoting law student mental health literacy and wellbeing: a case study from the college of law, australia very beneficial seminar. hopefully other law firms will follow by example. we plan to collect a further set of student evaluations shortly using the same questionnaire� 5.2 lecturer experiences while there has not been a formal evaluation of lecturers’ experiences in delivering the workshop we have had formal and informal debriefs with lecturers (at each campus and nationally) in group settings and individually� lecturers have told us of their heightened awareness of mental health issues and the development of their skills through their training for and delivery of the workshop� they spoke of the challenge and stimulation arising out of varied experiences in the workshops and the sense of accomplishment they felt having successfully taught it� they also reported a greater insight and understanding of their own students and a feeling of being better prepared to respond to their students’ needs, particularly their mental health needs�104 from our own observations, and also as reported to us by other lecturers, it would appear that there has been very little if any resistance or reluctance by students to attending and participating in the workshop� 5.3 learning outcomes 5.3.1 student mental health literacy although we have not yet formally assessed the learning outcomes, there are some indicia of success� first, the comments made in student evaluation forms referred to above suggest that some have been able to ‘take on board’ a measure of health literacy�105 second, we know of students who have realised, during the course of the workshop or following it, that they have a mental health problem or concern and that they have subsequently sought appropriate advice and treatment� earlier we referred to nutbeam’s analysis of the three levels at which health education might operate�106 the college workshop promotes functional health literacy (the first level) as it provides students with mental health information including the sources of appropriate assistance in the health system� at the second level is ‘interactive health literacy’ which is focused on ‘the development of personal skills in a supportive environment’.107 the workshop also works at this level� it is not simply an information session� it is interactive and undertaken in a supportive small group environment and is aimed at some skills development� learning about the symptoms of common mental illnesses and where to seek help for a mental health concern are the subject of an activity and class discussion supported by the short film and its expression of the lived experience of common 104 which extends only to general pastoral care and providing mental health first aid (as first responder)� 105 for example: ‘a help in recognising the signs in yourself before it advances to a level that requires extensive assistance’; ‘it reinforced for me that stress and depression are real and treatable’; ‘made me realise how prevalent mental illness is in the legal profession and helped us learn to deal with these issues’� 106 nutbeam, supra note 46, at 265� 107 nutbeam, supra note 46, at 265� 490 international journal of clinical legal education issue 20 mental illnesses by members of the profession� ‘critical health literacy’108 which is the third level, supports cognition and skills in and around identifying the social determinants of health and looking at effective social and political action� at this level, the workshop provides a forum in which new law graduates may further explore the culture of the legal profession and the culture of law firms� they then may go on to consider how those institutions might need to change to better support the health and wellbeing of those working in the profession� the issues raised, and the manner in which they are raised, vary considerably from workshop to workshop (this is both a source of pleasure and challenge for our lecturers)� thus whether these broader issues are considered in a class is determined by the class itself� some classes focus significantly on them and in doing so function at this third level� to what extent does the workshop develop the social benefits referred to by nutbeam? in the case of law students and in the context of the form of health literacy dealt with in this article, these might include an increased ability to respond to peers, family or friends experiencing the symptoms of mental illnesses� this is briefly covered in the workshop and the workbook also contains supporting material� for some students it might also lead to an increased ability to engage in community action in and around mental health law and policy and the rights of those suffering mental illness� another aspect of critical health literacy supported by the workshop is the development of social capital� this might include greater knowledge and understanding of mental illness itself and of (future) clients who may be suffering a mental illness (or emotional distress)� at the beginning of the paper reference was made to the study undertaken in 2007 by the abs109 of the mental health of the australian adult population� as it concluded that a very significant proportion of the adult population suffered a mental illness in any one year it is likely that many students who go into legal practice will at some time act for a person (or persons) with a mental illness� it would almost seem reasonable to assert, that for this reason alone, that all law students, particularly those intending to practice, be trained in mental health literacy� in the university context, where clinical legal education is taught, it would seem that mental health literacy might appropriately be taught as part of or associated with that subject� self reflection is an important aspect of clinical legal education� as part of that process students are required or encouraged to reflect on their performance and as part of that, their capacity to assume the professional role� students might be encouraged also to reflect on the personal resources they have and may need to develop to assume that role� part of the context, for undertaking such a reflection, could include information about mental health issues in the profession and mental health literacy training� it might also include evidence based wellbeing and resilience training, particularly stress management training� we argue above that mental health training may lead to the development of social capital� in a clinical legal education program this might also prove useful in the context of student reflection� students might be encouraged to reflect on a client’s responses in any interaction and the student’s own assessment of the client� both the reflection and the assessment might, in appropriate cases, 108 nutbeam, supra note 46, at 265� 109 see national survey, supra note 9� 491 promoting law student mental health literacy and wellbeing: a case study from the college of law, australia be informed by such training� it has been said that there is a strong correlation between malpractice and misconduct by legal practitioners and their having suffered a mental illness� it would be worthwhile considering and researching the ameliorative effect (if any) of mental health literacy on the rates of malpractice and misconduct in the profession� the relevant argument might be that receiving mental health literacy training will enable law students and lawyers to more readily identify the symptoms of mental illness in themselves, leading to earlier treatment and thereby reducing risks to clients (of a practitioner who may continue to practice with an untreated mental illness affecting their ability to function)� finally, the workshop works at one other level� it demonstrates to students that as lawyers we can discuss mental health issues, resilience and stress management together in an open way� our very clear perception is that law graduates are ready, willing and able to engage in this� the words of students in workshop evaluations best express this; discussing the problem of depression openly and with sympathy. opportunities to discuss the issues with people with different experiences. it was good to be able to talk about the issues of depression and anxiety. 5.3.2 supporting law student wellbeing and resilience in designing the college program students told us that this was the way to engage them about mental health issues, that is, by focusing on resilience and maintaining wellbeing� the workshop commences with a focus on wellbeing and resilience – both prevention of illness and measures to enhance wellbeing� in our experience law students are keen to participate in discussion about these topics, and although we have not measured whether their wellbeing and resilience has improved after the workshop, student evaluations provide support for the proposition that they have gained a greater understanding of what they need to do to stay well� 6. recommendations 6.1 law students should receive mental health literacy training we suggest that all law students receive mental health literacy training on the basis of the material set out in sections 2�2 and 5�3�1 and primarily for the many potential benefits it might bring to both law students and their communities� 6.2 mental health literacy can effectively be combined with wellbeing and resilience training although we are not entirely sure of the reasons, we know that there is a significant decline in the wellbeing of the student population as they attend law school� it is reasonable to assert that it is the responsibility legal education institutions to implement appropriate interventions which might both ameliorate students’ increasing emotional distress and enhance their wellbeing� in this paper we have reviewed three interventions which have been the subject of positive 492 international journal of clinical legal education issue 20 evaluations� these and others might form the basis of interventions in our institutions and further research� it would seem both appropriate and feasible to combine interventions aimed at enhancing the wellbeing of law students including stress management together with mental health literacy training, as they are so closely related� the college’s workshop confirms that this can be accomplished� one key reason for this is that as we have noted law students asked us to take a positive approach (an approach promoting student wellbeing), to mental health traing� we can now say after three years that, that from our experience working with australian students, that this is a way in which to engage law students in learning about mental health issues� 6.3 legal education institutions should consider making mental health literacy training and wellbeing training part of the core curriculum it is generally agreed that the emotional distress of law students and lawyers is an important issue� legal education institutions and the bodies regulating them are considering how appropriate responses might be reflected in relevant standards� for example the college, as a plt provider, is governed by the aplec competency standards for entry-level lawyers (2002) (the standards) which are currently under review� some possible matters for review have been identified and a proposition for each matter has been formulated for the purpose of facilitating discussion� proposition 5 provides – that the standards should require plt providers to make students aware of resources available to them relating to cultivating wellness, developing resilience and dealing with depression� this aligns our view that mental health literacy and wellbeing should be a compulsory part of the plt curriculum (and we argue by extension the curriculum of all legal education institutions) so as to achieve broad and equitable impact� 6.4 law lecturers can be mental health educators our experience has been that law lecturers suitably trained and with a genuine interest and ability to engage with mental health material and issues are adaptable to teaching courses related to law students’ and lawyers’ mental health� mhfa training for lecturers has significantly supported the teaching of the workshop� in light of the proportion of young people suffering mental illnesses and the greater proportion of tertiary students, particularly law students, suffering emotional distress, it would be prudent for all lecturers and other student-interfacing roles in legal education institutions to be trained in mhfa�110 in our view this should be a priority� 110 we understand that as part of a range of mental health initiatives being undertaken by victoria university, that all staff of the university (academic and non-academic) have been offered the opportunity to undertake mhfa training� as yet no evaluation of this program is available� this would seem to be a very appropriate initiative� 493 promoting law student mental health literacy and wellbeing: a case study from the college of law, australia 6.5 mental health training should align with standards for law schools in 3�4 above we noted our decision to align the resilience and wellbeing workshop with the relevant competency standard� for australian universities threshold learning outcomes (tlos) have been established for the australian bachelor of laws degree, as part of the learning and teaching academic standards project (ltas)� if metal health and wellbeing training is to be provided to law students it will be important to align the programs with the appropriate standards� in australia that is tlo 6, ‘self management’, the text of which is as follows; graduates of the bachelor of laws will be able to: (a) learn and work independently, and (b) reflect on and assess their own capabilities and performance, and make use of feedback as appropriate, to support personal and professional development111 in consultations with the profession, tlo 6 was acknowledged as critical to professional practice because it incorporated a capacity for resilience through personal awareness and coping skills that might include openness to assistance in times of personal and professional need�112 huggins and others have written a very detailed paper on the implementation tlo 6�113 in the paper they write that tlo 6(a) ‘may address a broad range of skills including time management, stress management, resilience and emotional intelligence’�114 the paper goes on to offer advice and strategies for implementing tlo 6 in the design and delivery of law school curricula� in so doing the authors say that their work was informed by the ‘aim of promoting students’ wellbeing’�115 during the college workshop we have noted that students reflect on the nature of the meaning of good mental health and resilience, what supports resilience in themselves and others, the nature of stress and the way that they manage stress� this type of material falls directly within the scope of tlo 6� although admittedly the workshop is only 3 hours long, the evaluations and our own experience suggest that students are strongly engaged by the workshop and describe a shift in their awareness and perceptions as a result� as such, this aligns with tlo 6� 111 australian learning and teaching council, learning and teaching academic standards project bachelor of laws learning and teaching academic standards statement, 50 (2010)� 112 australian learning and teaching council, good practice guide, threshold learning outcome 6 self management, 23 (2011)� 113 anna huggins, sally kift and rachel field anna huggins, implementing the selfmanagement threshold learning outcome for law: some intentional design strategies from the current curriculum toolbox, 21 legal education review 183(2011) [hereinafter implimenting], see also a. huggins, autonomy supportive curriculum design: a salient factor in promoting law students’ wellbeing, 35 unswlj 683(2012)� 114 huggins implimenting, supra note 111, at 184� 115 huggins implimenting, supra note 111, at 193� 494 international journal of clinical legal education issue 20 7. conclusion many law students experience elevated levels of emotional distress during their time at law school� research shows that elevated levels of emotional distress are statistically significant predictors of serious mental illnesses� thus it can be asserted that law students are an ‘at risk’ group� lawyers are experienced at managing risk and it is likely that many different initiatives will be needed and will be designed and implemented by legal education institutions to respond to this risk� much work is being done to identify the factors associated with psychological distress in law students, particularly in the structure, pedagogy and curriculum of law school� informed by this context much work is also being done to renew law school curricula and teaching� earlier in the paper we noted that many different interventions will need to be developed to meet the risks that have been identified� this argument has been significantly supported and developed by the university of melbourne researchers�116 mental health literacy and wellbeing training, we argue, should form part of the training of all law students� however, it is only one part of any comprehensive response to law student psychological distress� the intervention we propose has two elements� the first is to provide all law students with mental health literacy training� providing such training would appear to be a most appropriate response to risks that students face� it is likely that this form of training will also have indirect benefits including the building of social capital� our experience at the college is that this form of training can be undertaken at little cost� using the mhfa as a model program, mental health training can be appropriately provided by non-mental health professionals, in our case law lecturers� this approach has been successfully implemented at the college� the second element is developing programs to support law student wellbeing� in light of research finding about the mental health of university and college students and an increased public discourse about mental health, it is increasingly common for policy making bodies and those setting the learning standards (or best practice guidelines) for students to include a requirement that institutions work to support the wellbeing of students� in our view interventions which might be developed to meet these aims might effectively be taught in association with training in relation to mental health literacy and should include stress management training� in light of the mental health risks faced by law students it is both necessary and feasible to include such interventions as part of the core curriculum of legal education institutions� there is now a healthy community of learning developing in this field and we and many others hope that the momentum which has now built for the development of new initiatives supporting the mental health and wellbeing of law students will continue� at the college we aim to move to a formal evaluation of the workshop and also to review its current form particularly, the extent to which we teach first aid behaviours, improvements in our teaching of mindfulness and stress management and the addition of suicide prevention material� the growing body of literature about the metal health of law students perhaps sheds new light on the words of john dewey: education is a social process . . . ….education is not a preparation for life; education is life itself. 116 larcombe and fethers, supra note 29� 495 promoting law student mental health literacy and wellbeing: a case study from the college of law, australia appendix 1 – resilience materials index resilience@law: mental health and wellbeing in the legal profession contents introduction what the research says about... awareness and education removing stigma self care strategies support and resources workbook overview resilience why does this program focus on resilience? what is resilience? building resilience preparing for challenge good mental health and wellbeing building resilience responding to challenge building resilience understanding stress what is stress? what are some warning signs of negative stress? are there any quick fixes for negative stress? a quick stress audit tool taking control of stress when resilience is not enough – responding to mental illness what is mental illness? how to talk about mental health concerns a few facts depression what might it look like what might depression look like at work? anxiety what might it look like what might an anxiety disorder look like at work? substance misuse what might it look like at work 496 international journal of clinical legal education issue 20 how to talk about mental health concerns a few tips how to be a better listener listen more effectively at work and at home getting ready to listen listening effectively getting help for a mental health concern what types of help are available? what might my workplace offer? what does mental illness and recovery look like at work? getting further information 497 promoting law student mental health literacy and wellbeing: a case study from the college of law, australia appendix 2 – resilience workshop evaluation form for students course:  not at all relevant very relevant  1. how relevant was this material to you? 1 2 3 4 5 6 7 8 9 10  not well presented very well presented→ 2. how well was it presented? 1 2 3 4 5 6 7 8 9 10 3. were there aspects of the program which you particularly liked? .............................................................................................................................................................. .............................................................................................................................................................. .............................................................................................................................................................. .............................................................................................................................................................. .............................................................................................................................................................. .............................................................................................................................................................. 4. were there aspects of the program which you particularly disliked? .............................................................................................................................................................. .............................................................................................................................................................. .............................................................................................................................................................. .............................................................................................................................................................. .............................................................................................................................................................. 5. is there anything else you would like included in the program? .............................................................................................................................................................. .............................................................................................................................................................. .............................................................................................................................................................. resilience and wellbeing for lawyers participant evaluation 498 international journal of clinical legal education issue 20 .............................................................................................................................................................. .............................................................................................................................................................. 6. what is your overall response to the program? .............................................................................................................................................................. .............................................................................................................................................................. .............................................................................................................................................................. .............................................................................................................................................................. .............................................................................................................................................................. .............................................................................................................................................................. foreword welcome to the summer edition of the journal for 2006. this edition of the journal it is curious how little academic attention has been focussed on issues of assessment and grading in clinical programmes. it is almost as if the struggle to establish clinical learning and teaching as a valid part of the law curriculum even in jurisdictions such as the united states where clinical teaching is arguably most embedded in legal education has meant that clinicians have tended to focus their energies on defending learning outcomes and student engagement rather than on the vexed issue of whether we should be seeking to assess clinical learning. a clinician once made the point to me that perhaps one reason that our students seem reluctant to challenge the potential lack of transparency in our clinical assessments is because the closeness of the supervisor/student relationship in clinics often means that our students trust us in a way which is uncommon in other learning contexts. if this is right, then it arguably makes it even more imperative that we ensure that our assessment practices meet the gold standard of being transparent, rigorous and fair since if we do not do this, it seems that our students may be reluctant to challenge us. clinic clearly has the potential to pose enormously difficult assessment issues. do we assess the core practical skills that we observe or, as georgina ledvinka addresses in her article, are we also looking for the element of self-analysis by way of reflective skills, which will satisfy us that students know what it is that they are doing well, and are able to take the habit of reflection into practice with them, so that they are able to become life long learners? where does the balance lie between the assessment of reflection and the assessment of practice? do we need to shift the assessment away from the live client context with all its unpredictability and lack of comparability and towards high level simulation, such as the standardised client model described by larry grosberg in his article? roy stuckey in his article addresses most broadly the key issues around assessment, asking what it is that we seek to achieve with assessment and with clinic, and how this fits with the general expectations of higher education in the different jurisdictions of the united states and the united kingdom. not only does he remind us that when we talk about assessment it is a term that may encompass a huge variety of different functions, but he also addresses the distinctions between formative and summative assessment which may often become so blurred in the clinical context where supervision and mentoring blur into an assessment function. georgina ledvinka's article starts with an analysis of what we are looking for when we require our students to reflect on their clinical practice, and how the practice of reflection fits with educational theories of learning generally. from this ledvinka moves into a detailed analysis of the strengths and weaknesses of the assessment of reflection in the context of her own clinical programme at northumbria, and analyses whether there is the sort of level of consistency across markers that meets the requirements for assessment processes to be rigorous and fair. foreword 5 finally, larry grosberg focuses on assessment in the context of interviewing and counselling, looking at the skill both within its clinical and non-clinical teaching contexts, and asking the critical question of how we can avoid subjectivity in our assessment of lawyering skills. starting with an analysis of why the teaching of core interviewing and counselling skills is so important given the relative lack of practical experience prior to qualification for many lawyers in jurisdictions in the united states, he then valuably draws on the clinical assessment experiences of the medical educators, and outlines different assessment strategies which might be brought to bear within the assessment of legal skills. while the three articles in this issue of the journal each take a different route towards the issue of assessment, the issue of whether our clinical assessment practices stand up to close scrutiny is at the heart of each of the papers. it is a theme that i hope we will continue to address in later editions of the journal. the development of robust assessment methodologies is surely a necessary precondition for the promotion of clinical learning to the heart of learning and teaching in law. or, at the risk of extreme heresy, should we be challenging the entire assessment emphasis of the academy, and celebrating the fact that within the clinical field we have the potential to achieve much more than a traditional grading-based assessment, with the ability to describe our students, their strengths and weaknesses, so much more fully than a mere grade would normally capture. the summer 2006 conference and plans for 2007. the summer 2006 ijcle conference took place in london, and was extremely well-attended, with delegates from almost all the major jurisdictions. (the journal still has relatively little reach with the important clinical developments in the countries of south america something which i am keen to redress.) papers ranged across a huge range of topics, clustering around the theme of emancipation through clinical learning. as at previous conferences, delegates commented not just on the quality of the papers, but also the supportiveness of the conference environment. i have to say that i have always taken it for granted that clinicians are a uniquely generous group of educators always willing to share experience, and eager to learn from one another's different experiences but it is an aspect of the conference that i think deserves to be celebrated. delegates arrive from an ever-widening group of different jurisdictions and from clinical programmes of all kinds, and in all different stages of development. it is a huge strength of the conference that it is able to provide a welcoming environment for all different models of clinical activity. plans for 2007? i can take this opportunity to confirm that the 2007 conference will take place in johannesburg, south africa. the conference is scheduled for 9th and 10th july 2007, although it is likely that there will be a range of activities taking place both before and after the formal conference. i am delighted that the conference will take place alongside the south african clinical conference a model that worked extremely well when we joined with the australian clinical conference in melbourne in 2005. this model of joint conferences will ensure we have a continuing focus on international clinical activities within the journal conference streams, but will also offer delegates the opportunity to learn more about the hugely important south african clinical context, with its range of clinical teaching methodologies and community legal projects. the theme of the conference will be: unity 6 journal of clinical legal education august 2006 in diversity. it is a theme which not only has clear relevance for our hosts, but also enables us to celebrate the huge range of different clinical programmes and activities which i hope are addressed by this journal. details about the conference will soon be available on our new website: www.ijcle.com a development which has been needed for some time now and which i hope will be up and running in the near future. in the meantime, i am more than happy to field any questions about the conference and any early proposals for papers and indeed any suggestions for articles for this journal. i can as ever be contacted at philip.plowden@unn.ac.uk philip plowden editor foreword 7 8 journal of clinical legal education august 2006 1 editorial the clinical is political elaine hall northumbria university, uk elaine.hall@northumbria.ac.uk our winter issue has serendipitously gathered a collection of papers that reflect clinicians’ engagement with society. our recent and fantastically successful (thank you monash colleagues and all participants!) was all about adding value and in this issue our authors demonstrate the range of ways in which this can be done. i am positing that we are all political in our actions, whether or not we consider ourselves to be, since we are interacting moment by moment with our societies and each microinteraction, as well as each ‘4 star impact’ is a part of our political contribution. seamus heaney’s 1966 poem ‘digging’ speaks to the dignity of all kinds of labour and in this spirit we offer you many kinds of action, many ways to make a clinical mark on the world, many tools with which to dig. by god, the old man could handle a spade. just like his old man. my grandfather cut more turf in a day than any other man on toner’s bog. mailto:elaine.hall@northumbria.ac.uk https://www.monash.edu/law/home/cle/clinical-legal-education-conference 2 once i carried him milk in a bottle corked sloppily with paper. he straightened up to drink it, then fell to right away nicking and slicing neatly, heaving sods over his shoulder, going down and down for the good turf. digging. the cold smell of potato mould, the squelch and slap of soggy peat, the curt cuts of an edge through living roots awaken in my head. but i’ve no spade to follow men like them. between my finger and my thumb the squat pen rests. i’ll dig with it. from ‘death of a naturalist’ there are so many causes and issues competing for our attention. appropriately enough, adrian evans starts us off to actually save the world with his greenprint for a climate defence clinic, focusing on opportunities both to inform students and to harvest their enthusiasm for this fight. 3 yvette maker, jana offergold and anna arstein-kerslake highlight an emerging area of clinical work in equalities, looking at the work done in melbourne’s disability rights clinic. next, jill alexander and carol boothby look at equality from the students’ point of view, considering the impact on employability for clinic students, who may otherwise lack opportunities for work experience. janet thompson jackson and susan r. jones consider how clinic can support businesses, both in terms of the advantages to society of better businesses from a purely functionalist legal point of view and also in terms of providing support for businesses to consider how to be better, technologically, socially and environmentally. many clinical colleagues across the world are actively involved in immigration work, though in some countries there are jurisdictional limits to what clinics can do. in our practice report, frances ridout, deirdre gilchrist and jeremy dunn report on the work at queen mary university of london where an active and positive engagement with the office of the immigration services commissioner has led to new insights and practice – an object lesson of how to ‘dig in’ to the possibilities. finally in this edition, a focus on tools: if we are going to dig then as well as spades we might need hoes, picks and shovels. paul dargue’s review of empirical legal research in action reminds us to look beyond our accustomed tools to what might be revealed if we picked up another. 4 research opportunity promoting wellbeing through clinical legal education calling all legal academics and clinical legal educators! are you actively involved in teaching a clinical subject? have you taught a clinical subject in the past? have you contributed to teaching a clinical subject? a research team at monash law faculty would like to invite you to complete brief questionnaire which provides an indication of your motivational orientation. your involvement will contribute to clinical legal education scholarship, and it will help the research team to explore ways in which clinical legal education might be associated with law student wellbeing. you may also benefit from reflecting on your own motivations for teaching! for further information please contact: claire carroll, student researcher faculty of law phone: 0484006270 email: claire.carroll@monash.edu there are so many wonderful clinical events for 2019! the association for canadian clinical legal education (accle) will be returning to western university, faculty of law, for their 10th annual conference, “looking back, moving forward: future challenges for clinical legal education in canada”. june 12-14, 2019. the call for proposals closes on 31st january 2019 mailto:claire.carroll@monash.edu http://accle.ca/wp-content/uploads/accle-2019-call-for-proposals-final.pdf 5 encle – ijcle 2019 comenius university, bratislava, slovakia 3-5thjuly improving the future: using clinical legal education to educate lawyers for a just society in this year’s conference we look at a core goal of clinical legal education – justice. as the world faces unprecedented challenges in terms of climate, challenge to the rule of law and political and social upheaval, the conference provides an opportunity to consider and plan for the role of clinical legal education in this new environment. as always papers are welcomed from the broad spectrum of clinical legal education and particularly on the following themes: • the role of clinic in maintaining liberty rights and advancing the rule of law • climate change and environmental justice through clinical legal education • educating future lawyers – in what ways can clinic shape future lawyers’ aspirations and contributions to a just society? • researching the impact of clinic • interdisciplinary approaches to advancing justice and educating for a just society • technological innovation in the pursuit of a just society: access and information for all in the law taking part presentations at ijcle/encle can take one of three formats, each with its own structure and proposal application form: • pechakucha o these short presentations are timed and rely on strong visuals. please follow this link to learn more. a pechakucha consists of 20 slides timed to change every 20 seconds, so each presentation lasts 6 minutes and 40 http://www.pechakucha.org/ 6 seconds. each presenter in pechakucha session will be assigned a 10 minute slot to allow for a question to be posed. we anticipate that pechakuchas will consist of short introductions to new work, methodological innovations or insights from the field. • paper presentation o these will be in traditional conference paper format with a twenty minute presentation followed by questions. please indicate which conference theme(s) your paper addresses to aid the programming team. • interactive seminar o these sessions will be 45 minutes long and will involve active participation from the audience as well as input from the presenters and will be designed to generate discussion and new learning for the participants and convenors. key dates papers open for submission january 2019 deadline for submission of papers 29.3.19 confirmation of paper accepted no later than 30.4.19 conference registrations open 28.2.19 gaje’s 10th worldwide conference will take place in bandung, indonesia from the 4th through the 10th of december 2019 on the campus of pasundan university. once again, the conference will consist of two parts: a general conference, with plenaries and concurrent sessions on various themes and topics (4-8 december), and a training-of-trainers (tot) workshop on practical aspects for implementing justice education, including clinical teaching methods (9-10 december). further information about the conference, including a call for proposals, registration, and other program details will be announced in early 2019. promoting wellbeing through clinical legal education 603 meeting the required reforms in legal education in nigeria: clinical legal education – ten years after charles olufemi adekoya femairea@yahoo.com the author is a senior lecturer and sub-dean, postgraduate, faculty of law, olabisi onabanjo university, ago-iwoye, ogun state, nigeria. he is the faculty’s law clinic coordinator and holds a ph.d. in international human rights law from university of ghent, belgium. 604 international journal of clinical legal education issue 20 a. introduction in many parts of the world, including nigeria, legal education systems have been severely criticized both by stakeholders and consumers for being deficient in many respects in preparing “future lawyers, with many failing to provide the core competence necessary to practice law after a university education.”1 a global review has indicated that legal education systems are generally inadequate and needs to be improved upon.2 also, a series of discussions at both international and regional levels have emphasized the need for transition in legal training in order to enhance its effectiveness.3 legal education systems around the world have been under surveillance for failing to produce students who possess problem solving abilities, and the skills and values required for the profession.4 in nigeria, as it is in other jurisdictions, criticisms against legal education by stakeholders and consumers are severe, focusing on the quality of training, which is regarded as inadequate.5 for these and other reasons, critics have called for reforms in legal education in nigeria.6 based on the above, this paper attempts to examine the legal education deficits in nigeria requiring reforms, and how clinical legal education (hereinafter called “cle”) introduced in nigeria in 2003, ten years ago, best meets the required reforms, the challenges confronting the practice and institutionalization of clinical education, towards the objective of having a legal education which inculcates knowledge, skills and values, and is more practice oriented. this paper is divided into 1 see hovhannisian, lusine, clinical legal education and the bologna process, pili papers number 2, december, (hungary: public interest law initiative, 2006) p. 3. 2 ibid at p. 4. 3 ibid at p. 6. 4 see nisreen mahasneh and kimberly thomas, “learning from the unique and common challenges: clinical legal education in jordan”, vol. x:n (2012) berkeley j. of middle eastern & islamic law, p. 101. 5 these, basically are: 1. a majority of nigerian law graduates are not able to practice immediately upon graduation, see stuckey, roy and others, best practices for legal education (first edition, clinical legal education association, 2007 available at <http://cleaweb.org/resources/documents/best_practices-full. pdf> last accessed 26 june, 2013 p. 14.; 2. the main emphasis of legal education is too narrowly focused on substantive knowledge and skills, while it is deemed that graduates will learn other things in practice. see feldman, marc, “on the margins of legal education”, 13 n.y.u. rev. l. & soc. change 607 (1985) p. 618.; 3. there is disconnect in the legal training provided in the law faculties and the law school, the law faculties teaches substantive law while law schools teaches procedural law. see sam erugo, c.k. nwankwo, nath ikeocha and emeka okoroafor, “legal education and social change in nigeria”, paper delivered at the 2012 nigerian association of law teachers conference, held at university of lagos, akoka on 20 june 2012 p. 7.; 4.the teaching methodology in most law faculties and the law school (until recently) is purely traditional and attitudes of law teachers towards legal training is conservative. see ojukwu, e, “introduction”, in clinical legal education curriculum for nigerian universities’ law faculties/clinics (network of university legal aid institutions, 2006) p. 3.; 5. examination at both faculties of law and the law school, mostly require students to demonstrate substantive legal knowledge than they require for successful practice, and passing examination is often determined by ability of students to memorize notes and reproduce them, which are quickly forgotten after examinations. see stuckey, roy and others, op. cit. at p. 9, and ojukwu, e, op. cit. at p. 5. 6 see onalaja, m.o., “problems of legal education in nigeria”, pp. 1, 10 and 11. available at: http:// www.alimiandco.com/publications/accreditation%20and%20legal%20education%20 in%20nigeria.pdf last accessed 22 august 2013; sam erugo, c.k. nwankwo, nath ikeocha and emeka okoroafor, op. cit. at p. 7.; see ojukwu, e, “introduction”, in clinical legal education curriculum for nigerian universities’ law faculties/clinics (network of university legal aid institutions, 2006) p. 3.; ernest ojukwu, “moving from red to green: sharing the nigerian experience of transforming legal education”, being a keynote address presented at the 11th international journal of clinical legal education conference, held at griffith university, brisbane, australia on 16-18 july, 2013. 605 five parts, part ii examines the introduction in nigeria; part iii discusses the capability of cle to meet the required reforms in legal education in nigeria; part iv examines the achievements, and challenges confronting the practice, mainstreaming and institutionalization of cle in law faculties and the law school, and an evaluation of cle; while part v captures the conclusion and recommendations. b. introduction of clinical legal education in nigeria the introduction of cle in nigeria was the brainchild of the network of university legal aid institutions (nulai nigeria, hereinafter called “nulai”),7 as part of its efforts to reform legal education and expand access to justice for the poor. nulai was established in 2003 and some of its most significant efforts with respect to clinical education were the setting up of four (4) pilot clinics in 20048 and producing a model cle curriculum for nigerian universities in 2006 which was reviewed in 2012.9 from the introduction of cle in 2003 to 2013, that makes it a decade that clinical education has been introduced in nigeria. from four clinics in 2004, a total of sixteen (16) law clinics have so far been established at law faculties and the law school, through nulai efforts, while plans are in place to influence the setting up of additional ones.10 with the deficits in nigerian legal education and clamour for reforms, the introduction of clinical education by nulai was timely and could not have come at a better time when desired reforms in legal education by concerned authorities/stakeholders were coming too slowly.11 cle has as its core content, the establishment of live clinics. some law faculties have established law clinics only, while some have in addition to that incorporated clinical education into their curricula. in addition, cle brought a new teaching pedagogy which is clinical, thus changing the face of legal education in nigeria.12 the cle curriculum has resulted in new curriculum and teaching methodology that matches modern legal training with social needs, and through an array of novel subjects,13 some of which 7 nulai is a non-profit, non-political and non-governmental organization established in 2003 and dedicated to promoting clinical legal education, reform of legal education, legal aid and access to justice. its membership is open to law clinics/legal aid institutions in nigeria’s universities/law schools. see http://www.nulai.org/ last accessed 22 august 2013. 8 at abia state university, university of maiduguri, university of uyo, and adekunle ajasin university, akungba, ondo state. see network of university legal aid institutions (nulai nigeria), 2004 – 2006 activities report (abuja: nulai nigeria, 2007) p. 9. 9 see nulai, nigeria annual report, 2012 p. 2. 10 see nulai nigeria annual report, 2012 p. 11. 11 there was effort to reform legal education in 2006 with the federal government setting up a national committee on the reform of legal education in nigeria. the council of legal education on its part set up a committee to review the nigerian law school curriculum but before the committee concludes its task, there has been a shift in the teaching methodology at the law school from the traditional towards a more interactive one. see ojukwu, e, op. cit. at p. 5. 12 for some law faculties, they incorporated cle into their curriculum in 2006 while for the law school, it was in 2008. see sam erugo, c.k. nwankwo, nath ikeocha and emeka okoroafor, op. cit. at p. 13. 13 such as, street law advocacy, access to justice, legal research and case analysis, interviewing and counseling, and public interest lawyering, etc. meeting the required reforms in legal education in nigeria 606 international journal of clinical legal education issue 20 are entirely new in law faculties’ curricula, and law students are required to undergo experiential learning, geared towards legal service delivery.14 in the last ten years, nulai has done a yeoman service in promoting cle, fund raising and sustenance of law clinics,15 capacity building for law teachers/students,16 organising and funding of workshops17/conferences18 for law teachers/students, organising competitions,19 promotion of human rights and expanding access to justice, promoting a culture of community service among future lawyers, conducting impact assessment of law clinics in nigeria, and expanding the frontiers of clinical education movement.20 nulai has produced resources on cle, such as, the handbook on prison pre-trial detainee law clinic, the manual on prison pre-trial detainee law clinic and it publishes a peer-reviewed journal, the african journal of clinical legal education and access to justice, among others. these resources have assisted in galvanising research and scholarship on clinics, clinical teaching and learning, thus inciting research in this fledgling area of law in nigeria. c. capability of clinical education to meet the required reforms in legal education in the last ten years, cle has positively impacted upon legal training and holds promises as an educational method that will remedy and compensate21 for the many myriad of deficits in the current patterns of legal education in nigeria, on the following basis: 1. clinical education infuses theory and practice together clinical education integrates the teaching of theory and practice22 as a form of instructional pedagogy, by combining substantive law with skills, and also values, while the law clinic serves as the laboratory for practice, on the basis that the primary aim of legal training is to prepare students for practice.23 clinical education exposes students to law practice during legal training, unlike the traditional method, and does not teach theory alone in the belief that students will learn everything else in practice. 14 ibid at p. 23. 15 nulai conducted report writing and fund raising workshops for law clinics and law faculties. see ernest ojukwu, op. cit. slide 6. 16 see nulai, nigeria annual report, 2012 pp. 6, 7, 9 and 20. 17 nulai performs evaluation visits to law clinics and conducted in-house teacher training workshops for 14 law faculties. see ernest ojukwu, op. cit. at slide 6. 18 for instance, nulai hosted the 1st nigerian clinical legal education colloquium and 2nd all africa clinical legal education colloquium in nigeria. see ernest ojukwu, op. cit. at slides 5 and 6. 19 nulai currently organises law clinics essay writing and the national client interviewing and counseling skills competitions. 20 for example, nulai extended its advocacy for the adoption of clinical legal education within the african sub-region by providing technical and capacity support to law faculties in ghana, the gambia and kenya to establish and effectively manage law clinics. see nulai, nigeria annual report, 2012 p. 2. 21 see feldman, marc, op. cit. at p. 617. 22 see stuckey, roy and others, op. cit. at p. 72. 23 ibid at p. iv. 607 at nigerian law faculties and the law school, it is amazing to see students at the clinics handling live cases and meeting real clients. they perform the functions of a lawyer, short of appearing in court, ranging from client interviews, counseling, writing letters, resolution of disputes, negotiations, etc. in their role, students investigate clients’ cases, carry out legal analysis, write legal briefs and evaluate possible solutions, collaborate with colleagues, relate with clients, plan and take action, and accept responsibilities for their action.24 during the process, students interface with so many dynamics thereby acquiring varying lawyering skills such as problem-solving, collaborative skills, drafting and letter writing skills, required for law practice. for law students to undertake the above activities while in training, is unprecedented in nigerian legal education history. students’ role performance is the core of clinical education’s experiential learning methodology, which is “learning by doing”. students are able to put into practice what they learn in the classroom by rendering services to clients in law clinics.25 this greatly promotes active learning, and enhances the rate of assimilation and memory of students about what is learnt practically.26 functioning as lawyers in the clinics gives students a sense of responsibility in ensuring that they render services in the best interest of clients; thereby instilling in them the spirit of professional responsibility. in clinical education, students are able to perform in unfamiliar situations by relying on previous experience27 and use them to find solutions to many legal problems.28 cle builds the skills and strength of students, and also boosts their confidence since they perform in a safe clinical environment, thereby equipping them for the rigours of law practice.29 all these are absent in the traditional method, where case analysis provides the sole raw material for learning.30 2. clinical pedagogy is collaborative and student-centered clinical pedagogy emphasizes the use of carefully designed curriculum which is outcome-based, states the expected outcomes (i.e. what learners would be able to know or do at the end of the lesson) and content (i.e. the areas that will be covered with the purpose of teaching knowledge, skills and values) for the course, and methodology to be used. teaching delivery is by the use of lesson plans, which set out the topic, outcomes, content, activities (this set out the interactive teaching methods that will be used to deliver the lesson) and the resources required for executing the lesson plan.31 these are new and unique features of cle in legal education in nigeria. the array of activities contained in the lesson plan together with the use of different instructional materials now effectively engage the students and promote active learning. dictation of notes and distraction of students through such activity in class, as it is with the traditional method has greatly reduced. nigerian law students are now exposed to clinical pedagogy, through interactive and student-centered learning. students now actively participate in the learning process and are not 24 see feldman, marc., op. cit. at p. 614. 25 ibid. at p. 625. 26 ibid. at p. 615. 27 ibid at p. 614. 28 see matthew i. fraidin, ibidun roberts, jeannine winch and larissa chernock, op. cit. 29 ibid. 30 see feldman, marc., op. cit. at p. 617. 31 e.g. case study, handouts, pictures, flip chart, laptop, powerpoint projector, dvd player, etc meeting the required reforms in legal education in nigeria 608 international journal of clinical legal education issue 20 mere observers as in the traditional method. law teachers now merely play the role of a facilitator, facilitating the ideas of students, unlike in the traditional method where the teacher gives a lecture and the students listen without their experience/knowledge being used.32 it is amazing to see students display such high analytical skills during presentations. with the active learning which cle pedagogy stimulates, law students do not need to force-feed their brains with notes dictated in class or textbooks in order to pass tests/exams because they learn by doing, and remembering comes naturally to them and their success is influenced by their own efforts not by how good the teacher was.33 through clinical teaching, law students now place emphasis on the acquisition of knowledge, skills and values, and not on passing an examination, as it is in the traditional method. with this, clinical law graduates are able to apply their knowledge and skills after the examination. drawing a causal link between teaching methodology and students’ learning ability and performance, the committee of provosts and deans of a public university in nigeria, while discussing the students’ failure rate at examinations in their university stated “the need for lecturers to improve on their teaching methodology for the failure rate is an indication that there is a fundamental problem with the teaching methodology”.34 the committee therefore called on colleges/faculties to organize a retreat to educate lecturers on the student-centered learning approach”, which is a feature of cle. although, the committee did not state the failure rate in the university as a whole or on a college/ faculty basis, their statement is however illuminating enough to suggest that the traditional teaching methodology, which is prevalent in nigerian universities, is dysfunctional and harmful to students learning and performance. from the above, clinical method impacts knowledge, skills and values in law students. if both law faculties and the law school adopt clinical education, there will be congruence in legal training in nigeria, and law graduates will be well-equipped for practice. 3. service component of clinical education the clinic serves as the service and laboratory components of cle. in the faculties/law school clinics, students render diverse services to the poor in their host communities, free of charge.35 in clinics, students deal with human beings and not with cases or some abstract situations as in the traditional method; and in the process they acquire critical lawyering skills needed for practice, in addition to an appreciation of the value of professional responsibility.36 nigerian law students now learn and become sensitive to the importance of poverty and access to justice, social justice, rule of law/human rights protection, and other social problems, in the lives of the people and the 32 see christopher white and lynn manfred, guidebook for clerkship directors, 3rd edition alliance for clinical education, 2005 available at familymed.uthscsa.edu/ace/chapter5.htm‎ last accessed 20 august 2013 p. 6. 33 lewis, richard, “clinical legal education revisited”, cardiff law school, cardiff university, wales, uk. http://www.law.cf.ac.uk/research/pubs/repository/212 last accessed 22 august 2013 p. 7. 34 see the decision extracts of special meeting of committee of provosts and deans of olabisi onabanjo university, ago-iwoye, nigeria, in internal memorandum ref. oou/aca/31b dated 8th march, 2013. 35 see sub-paragraph 3.1 above for the various activities of students in clinics. 36 see hovhannisian, lusine, op. cit. at p. 10. 609 important role they can play in all of these.37 this process inculcates public interest lawyering in them and propels them to defend human rights and social justice in practice.38 through various clinical activities, law students widen access to justice for the poor in nigeria, and 13 law faculties now have law clinics.39 in addition to carrying out enlightenment programmes on human rights and democracy, etc, some of the clinics have special projects/community outreach programmes, targeted at specific communities, especially at the grassroots. clinical experience is so unique, outstanding and incomparable, such that students feel highly motivated and inspired when they solve problems of the poor, and for this reason, the clinic stands out as the highlight in the legal training and personal lives of some students.40 4. benefits to faculty clinical education offer benefits not only to the law students but to teachers as well, as it helps to develop the faculty, both in terms of scholarship and teaching methods. through clinical methodology, teachers are exposed to new teaching skills and thereby improve their competence.41 new practice based courses could also be stimulated by engaging in clinical methodology.42 scholarship is promoted by presenting opportunities for nigerian law teachers to write scholarly articles on cle, which have been published both locally and internationally. clinical education also offers opportunities for law teachers in nigeria to have a rethink about the traditional teaching method and the need to shift from this. d. achievements, challenges and evaluation of clinical education 1. achievements of clinical education in the last decade, clinical education has gained much awareness among stakeholders of legal education, especially law teachers, coupled with the advocacy efforts of nulai, some measure of successes have been recorded. amongst these are: i. the council of legal education – which is one of the bodies regulating legal education in nigeria, in its revised accreditation guidelines, now requires the introduction of clinical education and the setting up of law clinics in law faculties as one of the best paths to the development of the faculties of law in nigeria.43 ii. the legal aid act 2011 (as amended) now recognizes law clinics as providers of legal aid, under part iv section 17. 37 ibid at p. 14 38 law commission, review of legal education in bangladesh, final report , op. cit. 39 this was stated by ernest ojukwu, in his keynote address “moving from red to green: sharing the nigerian experience of transforming legal education”, op. cit. 40 see the clinical experience of nigerian law graduates in ernest ojukwu, op. cit. at slides 15, 16 and 17. 41 see feldman, marc, op. cit. at p. 636. 42 ibid. 43 see nulai, nigeria annual report, 2012 p. 21. meeting the required reforms in legal education in nigeria 610 international journal of clinical legal education issue 20 iii. the national universities commission benchmark minimum academic standards for undergraduate programmes in nigerian universities, law,44 now recognise clinical work, amongst other means of determining students’ academic competence for the award of bachelor’s degree, apart from script/examination assessment. iv. the national universities commission (nuc), has now introduced in its minimum benchmarks, community service, as a compulsory course, an ideal already encapsulated by clinical education.45 v. the capacity of legal aid in nigeria has been expanded by an additional 2,000 law students working in the clinics offering pro bono services throughout the country.46 vi. law graduates with clinical experience are more skilled in problem solving in law practice than their non-clinical colleagues.47 at the 2013 freedom of information teacher training workshop for clinical law teachers,48 staff clinicians attest to the quality of clinical law graduates, in terms of their communication, critical thinking and problem solving skills, etc. vii. establishment of law clinics improves the ratings of faculties during accreditation exercises by nuc and council of legal education. 2. challenges of clinical education in spite of the laudable achievements of clinical education within a decade, it is nevertheless being confronted by some challenges inimical to its mainstreaming and institutionalization in nigerian legal education. some of these are: i. apathy to cle: twenty law faculties have neither established law clinics nor introduced clinical education.49 the issue with this is that, those who resist the introduction or mainstreaming of clinical education are from within the law faculties, especially senior faculty members, who are unfamiliar or unclear with the concept.50 ii. lip service to cle: some of the law teachers pay lip service to the adoption of clinical methodology, while in actual fact, they still continue with traditional habits and practices,51 making legal education, business as usual. iii. inimical actions by some deans/provosts: the actions/inactions of some deans/provosts of faculties/colleges of law are inimical to clinical education where it has been introduced with the component of law clinics,52 e.g. by not allowing clinics to be integrated into the curriculum 44 published in april, 2007 p. 24. 45 this was stated by ernest ojukwu, in his keynote address “moving from red to green: sharing the nigerian experience of transforming legal education”, op. cit. 46 see nulai, nigeria annual report, 2012 p. 3. 47 see krieger, h. stefan, “the effect of clinical legal education on law student reasoning: an empirical study”, vol. 35:1 (2008) william mitchell law review p. 396. 48 organized by network of university legal aid institution (nulai) nigeria held at best western ajuji hotel, gudu, abuja 23rd – 24th may, 2013. 49 see ernest ojukwu, op. cit. at slide 13. 50 see nisreen mahasneh and kimberly thomas, op. cit. at pp. 112 and 130. 51 see ernest ojukwu, op. cit. at slide 14. 52 see ernest ojukwu, op. cit. at slide 14. 611 or by not allowing clinical work to be graded. this has the effect of relegating clinics to a second-class status in the minds of both the faculty and students.53 iv. lack of proficiency in curriculum and lesson plans’ development: most teachers in law faculties with clinical curriculum still struggle with developing proper and effective lesson plans, as a vehicle for teaching delivery. the inability to successfully develop lesson plans make teachers easily revert to the traditional method. v. clinics operation violate best practices: the way some clinics are run and the services rendered violates best practices and professional ethics.54 the result is that, clients’ interests may be compromised, in addition to rendering clients with “second-hand” or “substandard services”. vi. low staff-students ratio in some clinical programmes:55 in some clinical programmes, there are a few staff clinicians supervising many student clinicians. the immediate consequence of this is the overburden of the staff clinicians and in addition, there may be ineffective supervision of clinical work, resulting in shoddy services. vii. disruption of clinical service: most law clinics in nigeria are situated within faculty premises and operate from campuses. when there is a strike action, especially by the academic staff union of universities (asuu) whether at national or local level, to press governments/ university authorities for various demands, clinical services/projects in public universities are disrupted. some of the strike actions can last for several months.56 3. an evaluation of clinical education from the consideration of capability of cle to meet the required reforms in legal education in nigeria, and the achievements of cle, it can be opined that clinical education, has the potential to meet the needed reforms in legal education in nigeria. the timeless maccrate report, 199257 gave the recipe of what should be the content of modern legal education and the core competences it must instil in students, comprising of basic skills58 and values.59 cle encapsulates all of these, as can be gleaned from the examinations above. “a lawyer can only be as good as the system of legal education that produced him.”60 for this 53 see feldman, marc., op. cit. at p. 621. 54 see ernest ojukwu, op. cit. at slide 14. 55 ibid at slide 14. 56 the nationwide one declared on 2nd of june, 2013 by asuu, for instance, to compel the federal government to honour an agreement reached with the union in 2009 on adequate funding of universities and provision of infrastructure, is running to four months now at the time of writing this article. 57 a report of the american bar association’s task force on law schools and the profession: narrowing the gap. 58 these include: 1. problems identification and solving; 2. legal analysis and reasoning; 3. legal research skills; 4. factual investigation; 5. communication; 6. counseling; 7. negotiation skills; 8. trial and adr procedure; 9. practice management; and 10. recognition and resolution of ethical dilemmas. see lawlearn, “equipping our lawyers 2: integrate attorney standards into law student education”. available at: <http://lawlearn. wordpress.com/tag/maccrate-report/> last accessed 24 august 2013. 59 these include: 1. competence; 2. promoting justice and fairness; 3. improving the profession; and 4. professional development. see lawlearn, op. cit. 60 see onalaja, m.o., op. cit. at pp. 1, 10 and 11. meeting the required reforms in legal education in nigeria 612 international journal of clinical legal education issue 20 reason, clinical education, which has been adjudged as successful in filling some of the gaps that exist in traditional legal education,61 should be seriously considered in nigeria if we want our legal education to be richer in educational opportunity and professional promise,62 by ensuring that all law faculties embrace cle both as part of curriculum and as teaching methodology. in spite of the capability of cle to meet the desired reforms in legal education in nigeria, there is the human element necessary to drive the change. therefore, there must be willingness and more commitment on the part of law teachers, to change from current traditional practices and attitudes63 to clinical method, in order to offer excellent teaching and learning environments. on the evaluation of the introduction of cle, it can be said that clinical education has been very beneficial to legal education in nigeria and its performance with the last decade a huge success, judging from the examination made above, despite some of the challenges identified. for these efforts to be improved upon and the challenges to be surmounted, it will take sustained efforts on the part of nulai and faculties/law school, to build capacity of law teachers and for clinical education to be firmly entrenched in the breath and ethos of legal training in nigeria. one issue that must not be glossed over in legal education is funding because preparing students for legal practice is a big and important task. the maccrate report was criticized for glossing over the issue of funding.64 clinical programmes must therefore be well funded by the university, in terms of provision of adequate physical space, equipment, staffing and funding of projects, etc.65 the best way to fund clinical programmes is for it to be incorporated into the faculty budget, since the clinic is the laboratory and a content of legal education.66 this is necessary for clinical programmes to be taken seriously and be seen as part of the educational programme of the faculty.67 before this is attained, law clinics in the interim, can partner with bar associations, ngos and individuals for technical, service and financial support.68 the status of law clinics in law faculties that have not integrated clinics into the curriculum is murky, in the sense that, clinical work will not be graded and will merely be taken as an extracurricular activity. this has the tendency for clinics not to be seen as part of the faculty programme and thus not to be taken seriously by students, with the consequence that students will not like to devote their time to clinical work that would not earn them any credit and might ultimately affect clinical services or its survival.69 it is vital that national best practices and benchmarks for legal education be articulated by nulai and stakeholders of legal education in nigeria, as it exists in other jurisdictions, such as united states, u.k. and australia, in order to create an atmosphere for academic excellence. 61 ibid at p. 3. 62 see feldman, marc., op. cit. at p. 621. 63 see stuckey, roy and others, op. cit. at p. 3. 64 see rose, jonathan, “the maccrate report’s restatement of legal education: the need for reflection and horse sense”, 44 j. legal educ. 458 (1994). 65 see nisreen mahasneh and kimberly thomas, op. cit. at p. 115. 66 ibid at p. 131. 67 see nisreen mahasneh and kimberly thomas, op. cit. at p. 131. 68 ibid at p. 132. 69 see feldman, marc., op. cit. at p. 621. 613 e. conclusion and recommendations the examination of clinical education above has revealed that it is practice-oriented and offers an excellent teaching and learning environment, if best practices are followed and this paper therefore concludes that cle has the capacity to address the deficiencies in legal education in nigeria and meet the desired reforms which have been sidestepped for a long time, towards a legal training that builds competence, value and more practice oriented. cle is therefore recommended as a template for legal education reform in nigeria, and other countries in a similar situation to nigeria. this paper recommends that legal education should urgently be reformed and clinical education be adopted as a template for this reform. it equally recommends that the regulatory authorities for legal education in nigeria should make the adoption of clinical education in law faculties curricula part of the accreditation requirements, and that clinical courses be offered as compulsory courses, including taking part in clinical work. this will go a long way towards improving legal education and make it more practice oriented, before any major reform is carried out. meeting the required reforms in legal education in nigeria 614 international journal of clinical legal education issue 20 reviewed article: clinic, the university and society situating social problems in the context of law: fostering public interest lawyers in hong kong amy barrow[footnoteref:1] [1: amy barrow is assistant professor in the faculty of law at the chinese university of hong kong. this article draws on research conducted by amy barrow (principal investigator) and joy l. chia (co-investigator) on fostering public interested lawyers: the individual, the community and the law funded by a lee hysan foundation research grant and an endowment fund research grant awarded by united college, the chinese university of hong kong. the author would like to thank garf chan and esther erlings for their invaluable research support during the project.] the chinese university of hong kong abstract hong kong is often perceived as a global financial centre; an international, cosmopolitan city. though hong kong has prospered economically, a myriad of social problems persist which undermine equity and social justice in society and many interest groups lack political and legal representation. consequentially, the development of public interest law provides a pedagogical opportunity to cultivate individuals with the capacity to critically engage with and respond to social problems in society. while clinical legal education programmes provide one avenue of fostering public interest lawyers, socio-legal courses also provide a valuable means of developing socially responsible lawyers. first examining the context of hong kong law, this article considers the development of public interest law in hong kong and the role of socio-legal courses in fostering the development of public interest lawyers. specifically, the article examines the chinese university of hong kong, faculty of law’s flagship course, ‘the individual, the community and the law’ to explore how socio-legal courses can foster socially responsible lawyers. introduction many will be familiar with hong kong’s neon skyline, which firmly asserts its status as a global financial centre, yet masks a society riddled with inequalities and social problems. hong kong’s economic success belies a significant wealth gap, with more than 1.3 million[footnoteref:2] hong kong residents living below the poverty line as well as a significant number of vulnerable social groups including migrant workers, refugees and asylum seekers. hong kong’s social problems stem from a number of unique historical and political factors, which have helped to shape hong kong’s distinct cultural, legal and political identity. hong kong was formally handed over from british colonial rule to the people’s republic of china (prc) on july 1st, 1997. founded on the principle of ‘one country, two systems,’ hong kong special administrative region (hksar) enjoys a high degree of autonomy. the adoption of hong kong’s basic law,[footnoteref:3] a quasi-constitutional legal framework provides for the continuation of the common law system premised upon the rule of law and independence of the judiciary for a period of fifty years until 2047.[footnoteref:4] [2: this figure is out of a total population of more than 7 million. 19.6 per cent of the population is classified as poor. see 1.3 million hongkongers live in poverty, government says, but offers no solution http://www.scmp.com/news/hong-kong/article/1319984/hong-kong-draws-poverty-line-13-million-living-below-it 29 september 2013 (last accessed 16 april 2015).] [3: the basic law of the hong kong special administrative region of the people's republic of china (adopted at the third session of the seventh national people's congress on 4 april 1990 promulgated by order no. 26 of the president of the people's republic of china on 4 april 1990 effective as of 1 july 1997). see www.basiclaw.gov.hk] [4: ibid at article 5. there are a number of notable exclusions to hksar’s autonomy, principally matters of national security, diplomacy and international affairs, which fall under the power of the central people’s government of the prc. ] while hong kong prides itself as a society built upon the rule of law with a strong, independent judiciary, hong kong is undermined constitutionally by a lack of separation of powers between the legislative council and the executive branches of government. further, hong kong currently faces a constitutional crisis with tensions over political reforms in the lead up to the 2017 appointment of the chief executive. presently there is no universal suffrage, although article 45 of the basic law[footnoteref:5] provides that the chief executive of hong kong should eventually be elected through a process of universal suffrage. [5: article 45 of the basic law specifies that the chief executive of the hong kong special administrative region shall be selected by election or through consultations held locally and be appointed by the central people's government. the method for selecting the chief executive shall be specified in the light of the actual situation in the hong kong special administrative region and in accordance with the principle of gradual and orderly progress. the ultimate aim is the selection of the chief executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures. the specific method for selecting the chief executive is prescribed in annex i: "method for the selection of the chief executive of the hong kong special administrative region". ] given hong kong’s post-colonial legacy and uncertain political and legal future, this article argues that cultivating law students with the ability and willingness to engage with and work towards addressing social problems is essential for strengthening social justice in hong kong. socio-legal studies potentially play an instrumental role in fostering public interest lawyers, with the capacity to identify social problems, ensuing legal needs and underrepresented litigants. first, this article will consider the political situation in hong kong as well as cultural and social factors, which shape the 'context of law.' second, the article will explore public interest law’s potential in hong kong including the current use of strategic litigation. while individuals have increasingly turned to the process of judicial review as a mechanism of redress in the face of hong kong’s democratic deficit, the article will argue that there is scope to strengthen public interest law by fostering socially responsible lawyers with the capacity to identify social problems and unmet legal needs. the article will finally turn to consider the role of socio-legal education in fostering public interest lawyers in hong kong, by critically examining the flagship course, the individual, the community and the law (icl), at the faculty of law, the chinese university of hong kong (cuhk). though this paper focuses specifically on the hong kong context, the author hopes to add to comparative pedagogical discourses on how socio-legal studies can be effectively integrated into law curriculums in different jurisdictions to foster socially responsible lawyers with an awareness of the intersections between law and society. the ‘context of hong kong law’ a number of unique historical and political factors have shaped the context of law in hong kong and continue to have implications for the rule of law and civil liberties. hong kong was under british colonial rule for a period of 150 years.[footnoteref:6] in the early eighties, with the lease of the new territories due to expire in 1997, hong kong’s sovereignty was again called into question. negotiations between deng xiaoping and margaret thatcher led to the signing of the sino-british joint declaration[footnoteref:7] in 1984, which provided for the resumption of chinese sovereignty over hong kong. the declaration stipulated that the socialist system of the people’s republic of china (prc) would not be practiced in hong kong for a period of fifty years and this principle is clearly articulated in hong kong’s basic law.[footnoteref:8] only a few years after the signing of the sino-british joint declaration and prior to the handover, the tiananmen square massacre on june 4 1989 caused grave political concern of the potential consequences of chinese rule on the territory, particularly that the rule of law and civil liberties may erode.[footnoteref:9] [6: following the defeat of china’s qing dynasty government in the first opium war of 1842, hong kong island was ceded to the british, followed shortly after by kowloon. the new territories was leased to the british for a period of 99 years from 1898 to 1997. british colonial rule was briefly interrupted during the japanese occupation of 1941-1945. under british rule hong kong evolved into a centre for international trade. the population of hong kong rapidly expanded, with the arrival of large numbers of refugees from china in the early 20th century, particularly during the cultural revolution in china. though hong kong flourished economically, the british colonial government faced considerable dissent from chinese nationalists as well as other opposition groups. in 1967, for example, hong kong experienced a series of riots triggered by labour disputes. leftist sympathisers rioted against the then colonial government. according to official statistics 51 persons were killed and 832 people were injured. by the end of 1967, 1,936 people had been convicted for their participation in the riots. 2012 marked the 45th anniversary of the ’67 riots. see old leftists pay respects to workers killed in ’67 riots south china morning post, 7 may 2012.] [7: joint declaration of the government of the united kingdom and northern ireland and the government of the people’s republic of china, cap. 2301, 19 december 1984. ] [8: hong kong basic law article 5 states that ‘the socialist system and policies shall not be practised in the hong kong special administrative region, and the previous capitalist system and way of life shall remain unchanged for 50 years.’] [9: chen, albert h.y. "the rule of law under 'one country, two systems': the case of hong kong 1997-2010" (2011) 6:1 national taiwan university law review 269-299.] significantly, a number of international human rights instruments were extended to hong kong by the british colonial government[footnoteref:10] prior to the handover, including the international covenant on civil and political rights (iccpr)[footnoteref:11] as well as the international covenant on economic, social and cultural rights (icescr).[footnoteref:12] article 39 of the basic law acknowledges that the iccpr remains in force and shall be implemented through hong kong laws. the iccpr has been formally incorporated into hong kong law through the hong kong bill of rights ordinance (boro) including the principle of non-discrimination.[footnoteref:13] a number of laws also aim to protect distinct groups within society that have traditionally been disadvantaged, marginalized or underrepresented within society such as women and ethnic minority groups. [10: the british colonial government failed to extend human rights protections to hong kong at an earlier stage, even though some treaty provisions were already applicable in the uk context.] [11: international covenant on civil and political rights, 16 december 1966, 999 unts 171.] [12: international covenant on economic, social and cultural rights, 16 december 1966, 993 unts 3.] [13: hong kong bill of rights ordinance (boro) cap. 383, 1991, article 1.] following the adoption of the beijing declaration and platform for action (bpfa)[footnoteref:14] in 1995 at the international level, the british government also extended the convention on the elimination of all forms of discrimination against women (cedaw) to hong kong in 1996. further, a series of piecemeal anti-discrimination legislation provide protection on the grounds of sex, disability, family status and race, specifically the sex discrimination ordinance (sdo)[footnoteref:15] and disability discrimination ordinance (ddo)[footnoteref:16] adopted in 1995, the family status discrimination ordinance (fsdo)[footnoteref:17] adopted in 1997 and latterly the race discrimination ordinance (rdo) adopted in 2008.[footnoteref:18] [14: beijing declaration and platform for action (bpfa).] [15: sex discrimination ordinance (sdo) cap. 480, 1995.] [16: disability discrimination ordinance (ddo) cap. 487, 1995.] [17: family status discrimination ordinance (fsdo) cap. 527, 1997.] [18: race discrimination ordinance (rdo) cap. 602, 2008.] on paper, hong kong appears to have a strong rights-based legal framework[footnoteref:19] providing for the protection of individuals and distinct interest groups within society, thus creating an enabling environment for cause lawyering particularly around civil and political rights.[footnoteref:20] however, there are noticeable absences in legal protection, which leave minority groups susceptible to discrimination. specifically, there is no anti-discrimination legislation on the basis of sexual orientation and gender identity. in the absence of statutory protections, individuals have increasingly sought legal redress through judicial review to challenge the constitutionality of legislation. [19: additionally, a number of institutional mechanisms potentially help to support the advancement of equal opportunities, principally, the equal opportunities commission (eoc), a statutory body charged with advancing equality and eliminating discrimination. the eoc has no powers of adjudication and its role is limited to those powers and functions prescribed by s. 64 of the sdo s. 64 of the sex discrimination ordinance 1(d) for example states that where any unlawful action under the ordinance has been determined, the commission should effect a settlement of the matter by conciliation.] [20: tam, waikeng ‘political transition and the rise of cause lawyering: the case of hong kong’ law & social inquiry vol. 35, issue 3 at 671.] strategic litigation as a means to secure legal protections and its limitations significantly, the use of strategic litigation in the form of judicial review has been adopted to secure rights, while simultaneously being used as a tool to foster public education and awareness of minority rights. to illustrate, the development of legal protections for lgbti individuals has been piecemeal and largely as a result of judicial review cases launched to challenge existing laws which contravene hong kong’s basic law. for example, the landmark 2006 case of william tc roy leung[footnoteref:21] successfully challenged a number of provisions under the hong kong crimes ordinance[footnoteref:22] for violating privacy and equality protections situated within hong kong’s basic law (articles 25 and 29) and boro (articles 1, 14 and 22) including s. 118 (c) of the crimes ordinance, which set the age of consent for buggery between same-sex couples at 21 years of age, with punishment of life imprisonment for offenders. conversely, the age of consent for vaginal intercourse was set at 16 and punishment limited to five years. [21: william tc roy leung v secretary for justice [2006] 4 hklrd 211 (ca).] [22: crimes ordinance cap. 200, 1972. the applicant specifically challenged provisions under s.118c, h and j, which were added to the crimes ordinance in 1991.] in evaluating the inconsistency in age of consent between same-sex and opposite-sex couples, judge geoffrey ma stated that “[d]enying persons of a minority class the right to sexual expression in the only way available to them,[footnoteref:23] even if that way is denied to all, remains discriminatory when persons of a majority class are permitted the right to sexual expression in a way natural to them.”[footnoteref:24] though the court declared relevant sections of the crimes ordinance unconstitutional, the ordinance was only recently amended to reflect the court’s ruling in december 2014. the time lag between the ruling and the legislative council’s amendment of legislation is thus severely protracted and points to the limitations of using judicial review as a form of strategic litigation to secure minority rights. [23: holning lau, who has significant expertise on gender, sexuality and the law in hong kong suggests that there are limitations in the court of final appeal’s reasoning, which focused on penetrative sex thus oversimplifying expressions of human sexuality between same-sex couples. see lau, holning ‘sexual orientation and gender identity: american law in light of east asian developments’ harvard journal of law & gender 31, 67, 2008 at p.85.] [24: leung tc william roy v secretary for justice [2006] 4 hklrd 211 (ca), at para. 48.] on the one hand, a surge of judicial review cases suggests that there is broad recognition of the independence and impartiality of the hong kong judiciary as well as the rule of law in society.[footnoteref:25] on the other hand, the use of the courts as an avenue to seek redress could also be due to hong kong’s perceived democratic deficit as a result of its executive-led government structure, which potentially undermines equity and social justice. significantly, the legislative council is made up of both geographical[footnoteref:26] and functional constituencies.[footnoteref:27] functional constituencies represent professional groups within society such as the legal sector, education sector and other interest groups, for example the heung yee kuk, which represents rural indigenous interests within the new territories. while geographical constituencies are voted in by a process of direct election, functional constituencies are voted in by a select group of eligible voters. this leaves noticeable absences in legal and political representation, particularly for groups within society such as women who stay at home or work in the informal sector, as well as other individuals who do not belong to a recognized profession and other minority groups. [25: kong, karen ‘public interest litigation in hong kong’ civil justice quarterly vol. 28, issue 3 (2009) at 331.] [26: there are five geographical constituencies in hong kong, hong kong island, kowloon west, kowloon east, new territories west and new territories east.] [27: the basic law of the hong kong special administrative region annex ii.] further, the political polarization of pan-democrats and pro-establishment lawmakers potentially risks undermining the due process of lawmaking leading to substantial delays in law reform. in 2014 for example, the marriage (amendment) bill,[footnoteref:28] which sought to provide post-operative transgender individuals with the right to marry following the landmark case of w v registrar of marriages,[footnoteref:29] was vetoed in the legislative council by both pan-democrat and pro-establishment lawmakers.[footnoteref:30] pro-establishment lawmakers suggested that the parameters of marriage should not be extended without wider public consultation while pan-democrats objected to the requirement that transgender individuals should gave to go through full sex reassignment surgery before being recognized in their acquired gender. [28: the marriage (amendment) bill was triggered by the case of w, a post-operative transgender woman, who challenged the constitutionality of the marriage ordinance cap. 181, s.40 and the matrimonial clauses ordinance, which in effect impaired her right to marry under article 37 of the basic law and article 19(2) of the bill of rights ordinance. the marriage ordinance replicates the english case, hyde v hyde’s definition of marriage (hyde v. hyde and woodmansee [lr] 1 p&d 130), that is the heteronormative union of one man and one woman to the exclusion of all others. the court of final appeal reasoned that the denial of w’s right to marry her male partner, effectively denied her right to marry at all and was therefore unconstitutional.] [29: w v registrar of marriages [2013] hkcfa 39.] [30: see transgender marriage law vetoed by legco http://www.scmp.com/news/hong-kong/article/1622339/legco-vetoes-transgender-marriage-law-minister-accused-not-lobbying, 23 october 2014. (last accessed 17 april 2015).] significantly, these and many other landmark cases in hong kong result from strategic litigation challenges, which go to the heart of the basic law. while constitutionally significant, pedagogically these cases also offer important illustrations of strategic litigations' promise as well as limitations, and thus form the bedrock of clinical legal education and other experiential learning courses including mooting. though cause lawyering and the use of strategic litigation have been able to achieve considerable successes over the years, pedagogically it is also important to look beyond case law alone to wider claim-making in society and the framing of social problems, which may offer an alternative means of identifying unmet legal needs. claims-making: framing social problems in the context of hong kong law merton explains social problems as physical or mental damage caused to individuals in society which may offend the values or standards of a large segment of society. [footnoteref:31] spector and kitsuse theorise social problems as a process of claims-making.[footnoteref:32] first, private problems have to be transformed into public issues, a process which is very much dependent on the power of claims-making by different groups and whether it is feasible to secure wider support from the public. during this process, resistance towards opposing claims may help to secure the objective of bringing the issue into the public domain, or if claims-making is ineffective, issues may shrink back into the private domain. interest groups may adopt a range of strategies in a bid to secure formal recognition, [footnoteref:33] whether through public demonstrations, petition campaigns or through mass media campaigns. there is a risk however, that governments may effectively try to bury the issue at this stage. at the third stage, the absence of or inadequacy of solutions generated to address the issue further problematise the issue. finally, in the absence of an effective institutional response, groups may seek to develop alternative solutions, which lead to the generation of competing claims that effectively sustain the issue as an ongoing social problem. equally this process of claims-making is applicable to the hong kong context. [31: merton, robert k., social theory and social structure, free press, 1968.] [32: malcolm spector and john kitsuse (2001), constructing social problems, transaction publishers pp. 143-148.] [33: to be established as a social problem, issues need to transcend the private domain and require open acknowledgement in the public domain by policymakers and other stakeholders. formal recognition of the claims by governments, could for example include establishing a committee to review the issues or claims, may help to cement the issue publically.] in recent years, hong kong has witnessed a growing protest culture with regular protests taking place on a range of political, economic, social and cultural issues, which suggest a clear process of claims-making by different interest groups in society. the roots of some of hong kong’s social problems, many of which are interconnected, in part stem from policies and laws enacted both prior to and following the handover of hong kong from the british colonial government to the people’s republic of china in 1997. from concerns over pressure placed upon the hksar government to implement article 23[footnoteref:34] of the basic law, which requires the hksar government to enact laws to prohibit any act of treason, secession, sedition or subversion against the central people’s government, [footnoteref:35] to contentious proposals on national education reforms,[footnoteref:36] individuals and groups within society have actively participated in public demonstrations. increasing social and political awareness is evidenced by the growth of civil society organisations campaigning on a range of issues including the status of refugees; working conditions of migrant domestic workers; and the lack of legal protections of vulnerable groups within society including sexual minorities.[footnoteref:37] [34: article 23 of the basic law provides that ‘the hong kong special administrative region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the central people's government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the region, and to prohibit political organizations or bodies of the region from establishing ties with foreign political organizations or bodies.’ ] [35: the article 23 concern group was formed in response to the hong kong sar government’s attempt to enact legislation to implement article 23 in hong kong law. following significant public pressure and mass demonstrations on 1 july 2003, the bill was shelved indefinitely.] [36: scholarism is a student activist pro-democracy group, which formed in 2011 in response to concerns over the autonomy of hong kong’s educational policy. in 2012 the group protested against the proposed adoption of moral and national education by the hong kong education bureau. controversially, the proposed curriculum appeared to praise communist and nationalist ideology, while being dismissive of democratic governance. ] [37: hong kong has a vibrant and active civil society including community organisations. the last comprehensive overview of hong kong’s civil society seems to have taken place in 2006. the civicus civil society index (csi) project was carried out between 2004 and 2005 in hong kong. see civil society index report: hong kong special administrative region of china, may 2006 available at centre for civil society and governance, university of hong kong, http://web.hku.hk/~ccsg/css.html (last accessed 26 march 2015). ] the mushrooming of civil society groups, as well as cause lawyering, has firmly entrenched recognition of some of these issues, such as the status of refugees, as social problems. other issues, for example proposals on national education, appear more transient in nature but may nevertheless link to the way in which hong kong and its citizens’ culture and identity are framed and contested, an issue which may itself develop into a social problem. since the 1997 handover, a significant number of mainland chinese immigrants have moved to hong kong,[footnoteref:38] while numbers of mainland chinese visitors[footnoteref:39] has also risen, which has resulted in social tensions between hong kong chinese and mainland chinese.[footnoteref:40] these tensions have been heightened by the recent political crisis, which has drawn attention to the fragility of a political and legal system founded on the principle of “one country, two systems.” [38: chinese migrants now make up ten per cent of hong kong’s population. as of march 2013, 760,000 chinese migrants arrived to permanently settle under the hong kong sar government’s one way permit scheme. see http://www.scmp.com/news/hong-kong/article/1195642/mainland-chinese-migrants-1997-now-make-10pc-hong-kong-population 21 march 2013(last accessed 31 march 2015). ] [39: tensions have arisen as a result of increased numbers of chinese tourists to hong kong as well as other short term visitors, for example the increasing numbers of chinese women who come to hong kong sar with the specific intention of giving birth. in january 2013 the hong kong sar government banned chinese women from giving birth in public hospitals to try to alleviate the problem. private hospitals continue to provide maternity and neonatal services to chinese women. there are a number of pragmatic reasons why chinese women wish to give birth in hong kong, from the implications of china’s one child policy to desiring better educational opportunities available to children born in hong kong.] [40: the equal opportunities commission is currently conducting a discrimination law review to evaluate how hong kong’s existing anti-discrimination ordinances may be improved. one of the central questions has been how to alleviate tensions and practices perceived as discriminatory but not formally recognized as such in law against chinese immigrants and visitors to hong kong sar. further details of the discrimination law review can be found at http://www.eocdlr.org.hk/en/index.html (last accessed 26 march 2015).] occupy central and the umbrella movement hong kong currently stands at a political impasse as whether to implement constitutional reforms in line with the central people’s government’s interpretation of ‘universal suffrage.’ if the executive fails to implement constitutional reforms accordingly, it must continue with the existing nomination process of hksar’s chief executive by a 1,200-member election committee. in september 2014, ‘occupy central,’[footnoteref:41] a civil disobedience campaign was initiated to challenge the perceived failure of hong kong’s executive to implement universal suffrage in accordance with international standards under the international covenant on civil and political rights (iccpr). article 25(b) of the iccpr specifically states that: [41: occupy central was initiated by professor benny tai, an associate professor in the faculty of law at the university of hong kong together with associate professor kin-man chan in the department of sociology at the chinese university of hong kong and reverend chu yiu-ming.] “every citizen shall have the right and the opportunity (b) to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors” the central people’s government’s current proposal has interpreted this provision to allow for one person, one vote; however chief executive candidates will first be screened and selected by a nominating committee. in effect, hong kong residents will have the capacity to elect the chief executive from a pool of only two to three candidates.[footnoteref:42] significantly, the umbrella movement (as it is often referred due to the images of protestors shielding themselves with umbrellas from the police’s pepper spray) lasted for almost three months from 26 september to 15 december 2014. during the protests, the hong kong bar association condemned the excessive and disproportionate use of force used by the hong kong police.[footnoteref:43] the umbrella movement has led to significant scrutiny of the rule of law in hong kong and whether it is being eroded along with other civil liberties including freedom of expression.[footnoteref:44] [42: according to the standing committee of the national people’s congress (npc) ‘the session is of the view that in accordance with the provisions of article 45 of the hong kong basic law, in selecting the chief executive of the hong kong special administrative region by the method of universal suffrage, a broadly representative nominating committee shall be formed. the nominating committee maybe formed with reference to the current provisions regarding the election committee in annex i to the hong kong basic law. the nominating committee shall in accordance with democratic procedures nominate a certain number of candidates for the office of the chief executive, who is to be elected through universal suffrage by all registered electors of the hong kong special administrative region, and to be appointed by the central people's government.’ for further detail see para. 4, full text of npc decision on hong kong’s constitutional development, office of the commissioner of the ministry of foreign affairs of the people’s republic of china in the hong kong special administrative region http://www.fmcoprc.gov.hk/eng/syzx/tyflsw/t944943.htm (august 31, 2014).] [43: statement of the hong kong bar association on the use of force by the hong kong police at harcourt road on 28 september 2014, press release 29 september 2014, available at hong kong bar association http://www.hkba.org/index.html (last accessed 29 january 2014).] [44: the world justice project (wjp) rule of law index ranked hong kong 16 out of 99 countries measured. rule of law in the world justice project: rule of law index http://worldjusticeproject.org/rule-of-law-index (last accessed 20 march 2015).] given hong kong’s unique legal and political environment, as well as an absence of adequate statutory protections and legal and political representation for vulnerable groups, there is scope to strengthen public interest law. pedagogically, while clinical legal education courses offer one means of exposing students to public interest law, socio-legal courses may also potentially foster socially responsible lawyers with heightened sensitivity to social problems that undermine equity and social justice in hong kong. in turn, socially responsible lawyers may choose to go on to practice public interest law. the development of socially responsible lawyers may help to strengthen public interest law and facilitate greater public awareness of vulnerable, unrepresented groups in society. public interest law and its development in hong kong broadly construed, public interest law is employed as a tool used to help marginalized individuals and groups in society though public interest lawyering is undertaken by a wide range of organisations including non-governmental organisations that work to promote and protect human rights or raise awareness of, for example, consumer claims or environmental issues.[footnoteref:45] traditionally, clinical legal education courses have been used as a means to foster public interest lawyers. specialised legal clinics expose students to experiential learning opportunities which potentially enhance their commitment to public interest and pro bono lawyering. many law schools in the united states have demonstrated a clear commitment towards promoting student lawyers’ participation in public service.[footnoteref:46] other jurisdictions including australia and the united kingdom,[footnoteref:47] have adopted clinical legal education programmes. the nature of legal clinics varies substantially. clinics may be wholly law school funded and housed on campus,[footnoteref:48] whereas some programmes are offered on an externship basis[footnoteref:49] and include supervised internships with key partner agencies.[footnoteref:50] [45: chaifetz, jill ‘the value of public service: a model for instilling a pro bono ethic in law school.’ stanford law review. vol. 45, no. 6 (jul., 1993), pp.1695-171 at 1704.] [46: see for example public interest law programmes at chicago law school and columbia law school.] [47: see for example, manchester law school, which set up its first legal advice clinic in 2000 and has subsequently opened a second clinic to cater to the needs of the community in east manchester http://www.law.manchester.ac.uk/law/legal-advice-centre/ (last accessed 26 march 2015). ] [48: for example, university of south australia legal advice clinic. ] [49: for example, griffith university semester in practice program.] [50: see discussion of australian clinical legal education at best practices australian clinical legal education http:///www.cald.asn.au/assets/lists/resources/best_practices_australian_clinical_legal_education_sept_2012.pdf (last accessed 26 march 2015).] in 1996, the american bar association encouraged law schools to provide both voluntary and mandatory legal work opportunities to law students, due to the relatively low number of pro bono lawyers compared with numbers of lawyers in practice.[footnoteref:51] such work may be counted towards the accreditation process upon becoming a legal practitioner. the american bar association encourages legal practitioners to complete at least 50 hours of pro bono work annually.[footnoteref:52] it is important to recognize that not all pro bono work, that is the provision of free legal advice to unrepresented litigants, would automatically fall within the realm of public interest law, though free legal advice is often facilitated with the aim of benefiting marginalized individuals or vulnerable groups with unmet legal needs. rhode suggests that the rationale behind fostering pro bono services rests on recognition of access to legal services as a fundamental need, with lawyers bearing some responsibility for ensuring that such legal services are accessible and available.[footnoteref:53] further, in a ‘democratic social order, equality before the law is central to the rule of law and to the legitimacy of the state.’[footnoteref:54] [51: rhode, deborah l. cultures of commitment: pro bono for lawyers and law students, 67 fordham l. rev. 2415 (1999) at 2415-2416.] [52: see american bar association http://www.americanbar.org/groups/legal_education/resources/pro_bono.html (last accessed 17 april 2015).] [53: supra note 50 at 2418.] [54: supra note 50 at 2418.] a common objective of promoting law students participation in mandatory[footnoteref:55] or voluntary pro bono legal programmes is to provide practical legal training[footnoteref:56] and skills as well as raise awareness of future lawyers’ professional duty to help marginalized groups in society to access justice.[footnoteref:57] through participation in pro bono programmes, it is anticipated that upon admission to practice, lawyers will be committed to providing pro bono legal services, irrespective of their other professional duties and demands on their time. while there is no such equivalent requirement of pro bono hours stipulated by the hong kong bar association or law society[footnoteref:58] there is growing recognition of the need to strengthen legal ethics in hong kong. significantly, the redman-roper report on legal education in hong kong, which was commissioned by the advisory steering committee of the review of the legal education and training in hong kong in 2000, highlighted the importance of experiential learning opportunities as a means to instill students with a sense of social responsibility.[footnoteref:59] [55: some scholars have advocated implementing mandatory pro bono programmes as a method of exposing all students to a broad range of public services. see rosas, christina m. (2002) ‘mandatory pro bono publico for law students: the right place to start’ hofstra law review vol. 30, iss. 3 at 1076. ] [56: granfield, in his evaluation of mandatory pro bono programs found that even if participation in mandatory programmes did not lead to a significant increase in pro bono services, such participation nevertheless proved valuable in honing students’ professional skills while also providing direct client contact. see granfield, robert institutionalising public service in law school: results on the impact of mandatory pro bono programs 54 buffalo law review 1355, 2006-07 at 1470. ] [57: see examples of mandatory pro bono law programmes lesnick, howard, ‘why pro bono in law schools,’ 13 law and inequality 25 (1994).] [58: the hong kong law society states: ‘the law society supports and encourages a wide variety of pro bono legal services provided by lawyers to the public of hong kong,’ but does not stipulate a recommended number of hours service per year. see hklawsoc.org.hk (last accessed 17 april 2015). ] [59: redman, paul and christopher roper, legal education and training in hong kong, august 2001 at 299.] the redman-roper report expressed concern that legal education in hong kong adopted a black-letter law approach, with the result that law graduates lacked an expanded view of the world.[footnoteref:60] further, the report suggested that narrow, doctrinal approaches to the study of law inhibited the development of law graduates’ ability to respond professionally to the needs of ordinary people or those in the ‘sandwich class,’ that is those in the lower-middle class bracket, whose legal needs were often not met. significantly, the report suggested that ‘law should not be seen as a narrow, self-referential discipline, but as one intimately connected with other bodies of knowledge and modes of social control and organization.’[footnoteref:61] the report’s findings are particularly salient given the number of vulnerable groups in hong kong including female migrant workers, refugees and those living in poverty, who lack adequate access to justice, a constitutional right guaranteed under article 35 of the basic law.[footnoteref:62] [60: ibid at 122.] [61: ibid at 68.] [62: article 35 of the basic law states ‘hong kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies. hong kong residents shall have the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel.’] awareness of public interest law in hong kong, though limited, is developing and there are notable examples of public interest lawyering. during the 1980s, pamela baker, a solicitor, pioneered the use of public interest law by bringing a series of landmark cases to challenge government policies on the treatment of vietnamese refugees.[footnoteref:63] subsequent strategic litigation cases on minority rights, as discussed above in relation to lgbti rights, and environmental issues such as the judicial review case of clean air foundation ltd v the government of hong kong[footnoteref:64] can also be construed as public interest cases. more recently, a network of public interested lawyers, hong kong public interest law group,[footnoteref:65] which draws together legal practitioners, academics and students was founded in 2013. [63: see for example r. v director of immigration and refugee status review board ex parte do giau & others (1992) 1 hklr 287; tran quoc caong and khoc the loc 1991 2 hklr 312; re: chung tu quan & ors 1996 1 hkc 566] [64: clean air foundation, an ngo sought a declaration that the government had a duty to protect its citizens from the harmful effects of air pollution given the constitutional protection conferred by article 28 of the basic law on the right to life and that the air pollution control ordinance, cap. 311 and its subsidiary legislation were accordingly inconsistent with basic law article 28. see clean air foundation ltd v the government of hksar [2007] hkec 1356.] [65: hong kong public interest law group was co-founded by azan marwah, barrister, hong kong and robert precht, founder and president of justice labs. robert precht’s previous positions include federal public defender, assistant dean of public service at the university of michigan law school, and china country director for pilnet: the global network for public interest law.] further, several faculties of law in hong kong have sought to develop clinical legal education programmes largely in response to the recommendations of the redman-roper report, which suggested that clinical legal education should be incorporated at all stages of legal education.[footnoteref:66] the law faculty at the chinese university of hong kong (cuhk), founded[footnoteref:67] with the vision that all law students should be engaged in the active learning of law in its social context,[footnoteref:68] developed the refugee rights clinic programme in partnership with the justice centre hong kong.[footnoteref:69] this particular clinical legal programme was also developed at the law faculty of the university of hong kong. additionally, the cuhk’s law faculty developed a flagship course, the individual, the community and the law, which adopts a ‘context of law’ approach. [66: supra note 58 at 167.] [67: the faculty of law at the chinese university of hong kong is a relatively young institution and the youngest law faculty in hong kong, having been established in 2008. its predecessor, the school of law at the chinese university of hong kong was founded in 2005 and the first cohort of students enrolled in 2006.] [68: the law school at cuhk was founded in 2005 with the vision that all students should acquire the necessary lawyering skills and ethical values to demonstrate leadership and serve the needs of the community. school of law (cuhk) mission statement, submission to the legislative council, lc paper no. cb(2) 1760/05-06(01)] [69: formerly the hong kong refugee advice clinic (hkrac).] socio-legal studies: an alternative means of fostering public interested lawyers? while clinical legal programmes have been adopted by law schools with a view to fostering public interested lawyers, it is less clear whether socio-legal courses such as the individual, the community and the law course, have the capacity to foster the same level of engagement with public interest law. first, the doctrinal bias of the undergraduate law curriculum makes the integration of socio-legal studies and empirical research methods particularly challenging.[footnoteref:70] second, law schools often exist in a vacuum and there is limited engagement with other disciplines such as the humanities or the social sciences, which means that legal scholars often lack the requisite empirical research and wider interdisciplinary skills required to teach and support student learning of alternative approaches to the study of law. [70: caroline hunter introduction: themes, challenges and overcoming barriers in integrating socio-legal studies into the curriculum (ed. caroline hunter) palgrave macmillan socio-legal studies at 1.] further, in the context of hong kong’s legal education environment, jones suggests that as a result of globalization and neo-liberalist capitalism, lawyers have been discouraged from critical engagement with the law and this has proved to be the case in hong kong, particularly as a result of the socio-political context post-97,[footnoteref:71] though this may be changing as the rule of law and other founding principles of the hksar come under pressure.[footnoteref:72] the law society professional practice requirements[footnoteref:73] also leave less room in the curriculum to develop elective courses as compared with other non-vocational degree programmes. [71: jones, carol, ‘legal education in hong kong: producing the producers in steele,’ s. & taylor, |k. (eds.) legal education in asia. australia. routledge.at 108.] [72: according to the hong kong’s public opinion programme’s latest survey results on social indicators released on 4 august 2015, people are less positive about hong kong society on issues including compliance with the rule of law and freedom compared with the past ten years http://hkupop.hku.hk/english/ (4 august 2015). ] [73: hong kong law society http://www.hklawsoc.org.hk (last accessed 17 april). ] rather than taking law as the starting point, the faculty of law’s flagship course, the individual, the community and the law (hereafter icl) adopts a ‘context of law’ approach, [footnoteref:74] which first focuses on the identification of ‘social problems’ affecting distinct groups in society. this is not to preclude analysis of law and how it relates to social problems. while a ‘context of law’ approach does consider the role of the law, importantly law is not presented as the primary solution to social problems, which may instead be addressed by other cultural, economic, political or social means. indeed the law can sometimes exacerbate social problems through inadequately or poorly drafted legislation or through the ‘silences’ of the law,[footnoteref:75] which can result in unmet legal needs. it was envisaged that a ‘context of law’ approach would steep students with a rich understanding of law’s limitations as well as its promise and potentially foster students’ awareness of social justice and public interest lawyering. similar to mandatory pro bono programmes the icl course is compulsory for all third year undergraduate llb law students. [74: though doctrinal legal studies as a discipline have traditionally been resistant to interdisciplinary research the development of alternative approaches to the study of law including socio-legal studies and critical legal studies have been influential in areas of law, which touch upon social policies and regulation, and increasingly law schools are shifting away from purely doctrinal legal research. see banakar, reza and max travers ‘law, sociology and method’ in theory and method in socio-legal research hart publishing oxford and portland oregon, 2005 at p.9] [75: hilary charlesworth referred to the silences of international law in considering the notable absence of gender and women’s experiences in the drafting of international legal instruments. see charlesworth, hilary ‘feminist methods in international law’ 93 american journal of international law (1999) 379. the term is useful more generally to encapsulate the way in which the ‘silences’ of law more broadly serve to exclude vulnerable groups in society from legal protections.] in the longer term, emeritus professor mike mcconville, the founding dean of the law faculty at cuhk, conceived that the course may influence students’ career aspirations and choices. though it may take several years for graduating students to reflect on their icl learning experience,[footnoteref:76] for some students, the course would heighten their awareness of inequity and social injustice within society and they would thus become socially responsible lawyers. in the longer term, it was envisaged that through students’ exposure to social problems, the empirical research and learning opportunities offered by the icl course would encourage llb graduates to give something back to the community whether through engagement with public interest law, pro bono or other community service provision. [76: the icl course is now in its 6th year of operation on the llb programme.] without black letter law as the familiar starting point, icl proves to be somewhat tempestuous. given that the majority of the compulsory law courses on the llb programme adopt a doctrinal approach to the study of law and focus on substantive law with little consideration of the cultural, social and political context in which the law is situated, many students feel somewhat uncomfortable to engage with contextual factors as well as social research methods. starting from the social problem, students are introduced to qualitative and quantitative research methods as well as research ethics before undertaking fieldwork with multiple stakeholders across legal, policy, ngo and other circles. while the course does not include any direct client representation or shadowing of practicing lawyers as such, students do have direct contact with research subjects during empirical research which may involve a process of identifying unmet legal needs. a principal aim of the icl course is to encourage students to develop socio-legal research projects for the benefit of selected vulnerable groups within society such as minority groups, migrant workers, ex-offenders and unrepresented litigants. the nature of the icl course does not lend itself to the traditional lecture-tutorial model, which most doctrinal law courses follow. pedagogically, the course is delivered through multiple methods including interactive lectures, tailored individual group tutoring as well as drop-in advice sessions. working in groups, students design and implement empirical research projects to effectively unpack how social problems impact upon individuals and the wider community, taking account of the role of the law in relation to the social problem. since the first cohort of icl students in 2008/09, students have identified and engaged with a wide range of social problems. icl groups have researched on a broad range of topics, though specific topics routinely surface each academic year including access to housing; the status of refugees; the status of lgbti individuals; and implications of the small house policy on land use and rights in the new territories.[footnoteref:77] [77: under the small house policy, an indigenous male villager over the age of 18 can apply for a grant to build one small house in the new territories http://www.landsd.gov.hk/en/legco/house.htm (last accessed 17 april 2015).] during the first semester, groups focus on drafting a research proposal which includes a detailed, critical review of secondary literature from which substantive research questions are identified and an appropriate research methodology designed. at the beginning of the course, delivery is weighted toward interactive lectures, where all groups are introduced to socio-legal analysis of social problems and to research ethics, which are particularly important given the human element involved in the design of such research projects including direct engagement with vulnerable individuals or groups. for example, student groups study the stanley milgram experiment to learn about the use of deception and its ethical implications[footnoteref:78] as well as review different academic disciplines’ ethics codes.[footnoteref:79] [78: see milgram, s, ‘some conditions of obedience and disobedience to authority,’ (1965) 18 human relations, 57.] [79: for example, the socio-legal studies association (slsa) code of ethics is introduced to students as well as the american anthropological association’s (aaa) code of ethics to consider the applicability of different discipline’s ethical parameters and how these may apply to social research undertaken under the auspices of the icl course.] formal screening of research proposals by the university survey and behavioural research ethics committee may help to legitimise the research process and strengthen student’s understanding of the role and importance of ethics in research. during the drafting of ethics applications, student groups receive substantial guidance and support from the course leader on research design and administrative colleagues provide additional research support by screening ethics applications. the application is primarily vetted at the faculty level before submission to the university level. thus applications are reviewed and refined multiple times before submission to the university level. student groups are also introduced to both quantitative and qualitative research skills including questionnaire planning and design, interviewing social research subjects and focus group planning and facilitation. though initially lectures are interactive, individual groups ordinarily break off to undertake group exercises and then relate generic case-based and research methods exercises to their own research topics. alongside these modules on socio-legal analysis and social research methods, external speakers including ngo representatives, pro bono lawyers and academics are invited to give guest lectures on public interest lawyering. to illustrate, the hong kong federation of women’s centres (hkfwc), [footnoteref:80] which runs a free legal advice clinic, is invited to introduce student groups to the situation and status of women in hong kong including issues such as disparity in economic earnings between men and women. further, hkfwc help to facilitate the sharing of pro bono lawyers, peer counsellors and service users, which gives student groups’ direct insight into the scope and nature of services provided by hkfwc’s free legal advice clinic. the aim of these sessions is to draw the connection between public interest lawyering and the design and development of student groups’ own empirical research projects. [80: hong kong federation of women’s centres (hkfwc) see http://womencentre.org.hk/en (last accessed 26 march 2015).] with ethics approval confirmed, during semester two, student groups undertake fieldwork with research subjects. student groups design research instruments including interview schedules and questionnaires, which are reviewed during individually tailored group tutoring. during the design process, the course leader offers detailed feedback on the phrasing and sequencing of interview and survey questions as well as any complications which may arise including the potential for bias in the design of questions or interviewer bias. additionally, student groups are introduced to data analysis, particularly analysis of qualitative data using coding or framework analysis, which is informed by grounded theory.[footnoteref:81] given that it is difficult to teach generic social research skills when each individual group is working on a highly specialized topic, over time the icl course design has evolved[footnoteref:82] to allow greater use of group tutoring individually tailored to the needs of each icl group. group tutoring is scheduled at key points in the research process including during the formation of research topics, submission of research ethics applications, design of research instruments and supervision during fieldwork. [81: framework analysis’ roots are in glaser & strauss’ pivotal work, which suggested that theory should be grounded in the data generated through research (i.e. inductive research). framework analysis allows for the identification of a priori themes (deductive research) as well as emergent themes (inductive research).] [82: several colleagues have been involved in the course design including the article author; prof. mike mcconville; dr. arthur mcinnis; former colleagues prof. marlene le brun and prof. mark hsiao. each colleague has contributed their respective perspectives, skills and insight to the course design, but the course has been inhibited by llb programme constraints.] the course includes both formative and summative assessment. in semester one student groups are required to give an oral research presentation in the latter part of the semester, which frames the social problem, identifies a research question and an appropriate research methodology to answer the question. groups also submit a written research proposal, which includes a detailed literature review as well as a proposed research methodology, which may include quantitative or qualitative social research methods or a combination of both. in semester two, student groups are again required to give an oral research presentation to present preliminary empirical research findings from their fieldwork. importantly, during oral research presentations other peer groups are invited to ask questions and give written feedback directly to individual groups for their consideration. this interactive process is designed to support student learning by encouraging student groups to identify any limitations in the research process including any potential for bias and how this may impact upon research findings. individual groups are also required to undertake a self-evaluation of their group's research process in relation to each assessment. including all groups in the evaluation process (while not informing the formal assessment process) helps to foster a sense of collegiality in the research process. at the end of the course student groups submit a final written report which includes an executive summary, a detailed literature review, research methodology, empirical research data analysis and findings as well as a conclusion. though some groups present recommendations, this is not ultimately the goal of the icl course, which instead aims to focus on unpacking the complexity of the social problem. the design and implementation of the icl course has not been without problems. the faculty initially adopted the icl as a compulsory[footnoteref:83] course requirement on both the undergraduate (llb) and postgraduate (jd) programmes. however, the structure and design of the course deviates substantially. on the llb programme the course is offered across two semesters, allowing for substantial guidance and support during the research process. conversely, on the jd programme the course was only offered in summer semester, a substantially shorter term spanning seven weeks. this proved to be inherently problematic as student groups were required to design and implement research projects within a substantially shorter timeframe. further, the course structure did not allow for the same level of guidance or support at all stages of the research process.[footnoteref:84] [83: from 2015/16 the course is no longer compulsory on the jd programme and will be offered as an elective. the status of the icl course on the llb and whether it will continue as a compulsory course is currently being evaluated. ] [84: the university requires that all students undertaking social research should be screened by the survey and behavioural research ethics review process. given the seven week timeframe allocated to delivery of the icl course on the jd programme, this formal review process is lacking and thus the legitimacy of the aims and objectives of the icl course on the jd programme may be undermined. from 2015/16 the course is no longer compulsory and will be offered as an elective.] at the undergraduate level, given the doctrinal bias of the undergraduate law curriculum, students often lack a solid grounding in socio-legal research at the point upon which they enter the course, which may hinder their understanding of the aims and objectives of the course as well as their socio-legal analysis of social problems. the recent adoption of foundational core courses on legal analysis and argumentation as well as jurisprudence and ethics in the faculty of law’s llb curriculum may allow greater scope to strengthen students understanding of alternative approaches to the study of law. further, given the limited number of elective courses that law students can opt to take in the first and second year of the llb degree, the majority of students lack a solid grounding in public interest law although courses such as administrative and constitutional law do expose students to strategic litigation cases and a limited number of individual law students also take clinical legal programmes such as the refugee rights clinic alongside the icl course. compared with doctrinal law courses, icl is labour intensive [footnoteref:85] for both students and the course leader, particularly during the second semester when student groups go out into the ‘field’ to interview civil society actors and policymakers. greater flexibility is required to provide the tailored group tutoring, which individual student groups rely upon during the research process. on average, there are twelve icl groups each year, the projects of which are distinct and consequentially require the design and implementation of different research methodologies. thus the course leader has to be adaptable in order to respond to the individual research needs and challenges of each group. [85: socio-legal research and teaching is also susceptible to the doctrinal bias of the undergraduate curriculum. for socio-legal courses to be sustained effectively they require adequate support through recognition of the ‘value’ of the course including for example, the allocation of an appropriate number of course credits to account for the unique nature of the course and the significant time required to conduct empirical research. students on the icl course currently complain that the course is not given an adequate number of course credits. additionally, the same numbers of contact hours are allocated to icl as with other compulsory core courses, which follow the traditional model of two hours lecture per week and one-hour tutorial. ] as with other law courses, each semester students must complete a course teaching evaluation questionnaire to provide feedback on their learning experiences. however, this generic evaluation does not adequately capture how the icl course impacts, if at all, on students’ perceptions of the rule of law, access to justice and public interest law, key elements which underpin the philosophy of the icl course’s design. thus, in 2014/15 a pedagogical research project was initiated fostering public interested lawyers: the individual, the community and the law.[footnoteref:86] this empirical research project aims to learn more about students’ specific learning experiences on the icl course including the influence that the course has had, if any, on llb students and graduates’ career aspirations and choices as well as perceptions of access to justice, the rule of law and public interest lawyering in hong kong. [86: we aim to map and track the year of graduation to try to gauge the impact over time, if any, of the icl course on llb graduate’s pursuant careers. the impact of the icl course may not be immediate but in the longer term the course may influence perceptions of public interest law, including whether llb graduates participate in pro bono legal advice or other work in the public interest domain. an anonymous questionnaire was distributed to students entering the icl course in september 2014. with limited exposure to the icl course, following the introductory lectures, we wanted to survey students in relation to their perceptions of the nature of the icl course in comparison to the broader learning experiences on the llb, as well as gauge students’ views on rule of law, access to justice and vulnerable groups in hong kong. this cohort of students will also be surveyed upon completion of the icl course to map whether their initial expectations of the course were accurate and to try to evaluate if the course has influenced their views on rule of law and access to justice in hong kong.] while not directly inspired by any similar pedagogical evaluations of clinical legal programmes, insight was drawn from two large-scale surveys in the united states, after the jd.[footnoteref:87] however, the research project differs substantially given that the aim of the survey is to evaluate the influence, if any, of a single socio-legal course as opposed to the entire jd or llb programme’s impact on career aspirations and choices. further, given the focus of the icl course on social problems, the research specifically intends to evaluate whether the course influences llb students and graduates' understanding of the connection between social problems, the individual, the community and the law. [87: ‘after the jd the first ten years’ was a longitudinal study to learn more about the influence, if any, of the jd course on career aspirations and choices. see http://www.americanbarfoundation.org/publications/afterthejd.html (last accessed 17 april 2015).] at this stage it is too premature within our pedagogical research project to fully evaluate whether socio-legal education, and specifically the icl course, can provide an effective means of fostering public interested lawyers as a way to strengthen equity and social justice in hong kong. however, from our initial survey results with students entering the icl course,[footnoteref:88] the majority of students are aware that public interest law aims to help marginalized groups within society (77%), though there is a lack of awareness amongst students as to the practicalities of public interest law including whether it is not-for-profit. 60% of students were uncertain as to whether public interest law is not-for-profit and 14% of students think it is carried out on a for-profit basis. the majority of students have undertaken legal internships (88%), and many students have also undertaken community service programmes (49%) with a relatively small percentage having undertaken overseas social service programmes (14%). only a minority of students have participated in any of the law faculty’s public interest programmes such as the refugee rights clinic (9%) or the refugee pro bono project (5%). these findings suggest that only a limited number of llb students voluntarily enter public interest law programmes. [88: the questionnaire was sent to 119 students entering the icl course. our response rate is lower than expected at 36%. there could be a number of factors for the response rate. some students who gave further feedback on the icl course expressed concern that they had only recently entered the course and therefore they did not have a clear understanding of the course’s objectives at that stage. additionally, relatively shortly after the questionnaire was circulated, the hong kong students federation called for a boycott of classes in response to the perceived failure to implement universal suffrage of the chief executive in hong kong in line with international standards. the boycott commenced on 22nd september shortly after the questionnaire had been circulated. attendance at lectures dropped as low as 45% and attendance at lectures only started to recover in the latter weeks of the course in late november 2014. ] while the pedagogical aims and objectives of the icl course may differ substantially to clinical legal education programmes, the inclusion of empirical research with multiple stakeholders from legal, ngo and policy circles may effectively sensitize students to the cultural, social and political context in which law operates, and thus heighten students’ awareness of the limitations of the law and lawyering. by exploring social problems experienced by vulnerable groups, students are exposed to different social strata within society. by engaging directly with stakeholders from civil society as well as policymakers and members of the vulnerable groups themselves, students can gain meaningful insight into the practical constraints of the law in providing an effective remedy to such vulnerable groups and the problems which they experience. our ongoing pedagogical research aims to give an indication of the impact of icl over time, if at all, on students’ perceptions of the rule of law, access to justice and public interest law. conclusion though historically hong kong has prospered economically, a myriad of social problems persist which undermine equity and social justice in society. the development of public interest law in hong kong provides a pedagogical opportunity to cultivate socially responsible lawyers with the capacity to critically engage with and respond to social problems in society. law schools within hong kong have increasingly adopted clinical legal education programmes as a means of fostering public interest lawyers. while pedagogically distinct, socio-legal courses such as icl may complement efforts to foster public interest lawyers through allowing students to engage in empirical research with multiple stakeholders to unpack the context of law in which social problems are situated and consider the role of the individual, the community and the law’s response. this article has demonstrated how pedagogically law schools can contribute meaningfully to the development of law students' sense of social responsibility. the ‘impact’ of socio-legal courses may be challenging to measure longitudinally, but potentially such courses allow for a seed of social awareness to be planted, which may bear fruit in the future. 36 special issue: adrian evans festschrift introduction: (graeme hodge, monash university) what can we say about adrian? we have heard many times this afternoon that adrian is a person who has long been passionate about legal ethics, about virtues and about conflicts of interest; that he is an author and close colleague to many in the room; and that he is now retiring. i, for one, have valued his personal advice, his integrity and his wisdom. in fact when i think about it, he has spent much of this life advising others how to behave in difficult situations and how to live a better life. he has always handled other people with real care. i think we should turn the tables here and ask not what his advice is to us about a situation, but ask ourselves how each of us should behave towards adrian as he enters a profoundly different period of life – retirement. joshua yuvaraj and i formed a group (last week) and called ourselves the travelling strawberries (with due acknowledgment to the slightly better known the travelling wilburys). this is our advice on how we should deal with emeritus professor adrian evans in the future. handle with care (adrian evans style) he’s been in law and he’s been around he’s been sent up, and he’s been shot down but he’s the best thing that we ever found, so handle him with care associate deans they are changeable (their) tasks are barely tolerable maria you are adorable (for) hand’ling him with care (now) he’s re-tired but he’ll never be lonely (there’s) so much life he’s yet to live won't you show him that you really care? it was cambridge uni press that they first tried on now that text book ‘lawyers ethics’ is relied on he’s been fobbed off, and he’s been fooled his sensitivity to conflicts has been ridiculed been teaching decades in monash law school handle him with care (music break) he’s been stuck in airports, and been terrorized in faculty meetings he’s been hypnotized (and) over-exposed, commercialized handle him with care (now) he’s retired but he’ll never be lonely (there’s) so much life he’s yet to live won't you show him that you really care? it was cambridge uni press that they first tried on now that text book ‘lawyers ethics’ is relied on now there’s no more uptight and there’s no more mess ahead is bees and honey (and walking) i guess oh, the sweet smell of success handle him with care 63 the growth of legal clinics in europe – faith and hope, or evidence and hard work? from the field: developments in clinic around the world the growth of legal clinics in europe – faith and hope, or evidence and hard work? maxim tomoszek, palacky university, olomouc, czech republic maxim.tomoszek@upol.cz clinical legal education is a quickly growing and developing concept. even in countries with traditionally conservative approaches to legal education and within very traditional institutions, we can observe significant growth of legal clinics. throughout the western europe, which was considered to be the last holdout in the worldwide acceptance of clinical legal education,1 many new legal clinics are being founded, changing the traditionally theoretical approach to legal education. does it mean that the global environment of legal education is changing? what are the sources of this unprecedented spread of legal clinics? and what will be the consequences of this trend for legal education in a broader sense? i will endeavor to answer these questions mostly from the czech and european perspective with a goal to bring some inspiration in a global context. in the end, i would like to share the surprising insights about clinical legal education i have gained at the conference dedicated to judicial independence and accountability. first, i would like to make several observations. legal clinics certainly are not a recent concept. the first clinics were established in the end of the 19th century and 1 wilson,r., western europe: last holdout in the worldwide acceptance of clinical legal education part i/ii, 10 german law journal 823-846 (2009), available at http://www.germanlawjournal.com/index.php?pageid=11&artid=1123. 93 mailto:maxim.tomoszek@upol.cz there was a significant discussion among scholars about the necessity of this type of legal education.2 i find this very logical, since law is perfectly suited, or even requires to be taught in a practical way. the legal profession, as one of the helping professions, requires its members to master many professional skills. that is why law students quickly understand that a purely theoretical method of teaching law cannot prepare them properly for their future career in the legal profession and start looking for other sources of practical experience to compensate for that. it is remarkable that students also recognize the educational value of clinics on the area of theoretical knowledge – legal clinics allow them to acquire deeper and practical understanding of theoretical concepts, and most importantly require the students to combine and connect knowledge from different areas of law (i.e. different subjects) to get a full picture of the legal situation of the client. thus legal clinics also offer a solution to the criticized compartmentalized nature of law studies. another important element often lacking in traditional legal education are professional values, again often due to theoretical nature of legal studies. a third factor important for development of legal clinics is the fact that there are many people in need of professional legal aid, who cannot afford to pay for a professional lawyer, despite the fact that states, bars or ngos make huge efforts to make the situation better. at the same time, raising the awareness of law student to social 2 bloch, f., the global clinical movement. education lawyers for social justice. oxford: oxford university press, 2011, p. 5; rekosh, e.,the development of clinical legal education: a global perspective – international experience, the history of legal clinics. in: łomowski, d. (ed.) the legal clinics. the idea, organization, methodology. warszawa: c. h. beck, 2005, p. 45; stilwell, p. (ed.), clinical law in south africa. lexis nexis butterworths 2004, p. 1; who we are?, accessible at http://archive-dk.com/page/214151/2012-0827/http://www.retshjaelpen.dk/eng/who-we-are, accessed on 30th may 2014. 94 http://archive-dk.com/page/214151/2012-08-27/http:/www.retshjaelpen.dk/eng/who-we-are http://archive-dk.com/page/214151/2012-08-27/http:/www.retshjaelpen.dk/eng/who-we-are justice elements of law motivates them and makes them better prepared for legal practice. legal clinics contribute significantly to all these areas, so it is remarkable that there were so many unsuccessful clinical projects all over the world, but especially in europe. therefore the question we ask should not be “why did clinics develop now?” but rather “why they did not last in the past?” and “why are they rediscovered (in certain countries) exactly now?” i would like to start answering these questions by using the example of the czech republic, which can be perceived as a bridge between western and eastern europe and shares many common features with countries from both parts of europe. the legal education was traditionally very theoretical, with occasional discussions about the lack of practical elements.3 in the 1990s, there were several clinical projects taking place at different law schools, but none of them was particularly successful.4 the reasons why these projects were not successful in the sense of long-term sustainability were astutely analyzed by richard wilson5 focusing on situation in western european and especially germany and stefan krieger analyzing the 3 bobek, m. o (ne)reformovatelnosti studia práv v čechách. právní rozhledy, no. 10/2005, pp. 365–370; no. 12/2005, pp. 446–451; no. 14/2005, pp. 523–529 and no. 16/2005, pp. 601–606. bobek also cites discussions from 1927 pošva, k., k reformě studia právnického. hovorna časopisu právník, vol. lxvi (1927), pp. 132-133, dymeš, b., k reformě studia právnického. hovorna časopisu právník, vol. lxvi (1927), pp. 196 a 197. 4 a very illustrative example of such a project was the housing clinic in olomouc – krieger, s. h., the stories clinicians tell. in: tomoszek, m. (ed.), complex law teaching: knowledge, skills and values. olomouc: palacký university, 2013, pp. 11-36. available at: http://www.pf.upol.cz/fileadmin/user_upload/pf/centrum/complex_law_elektronicky-_upravena.pdf, accessed on 30th may 2014. 5 wilson, 2009, p. 831-835. 95 http://www.pf.upol.cz/fileadmin/user_upload/pf/centrum/complex_law_elektronicky-_upravena.pdf situation in the czech republic.6 the factors they identified as main obstacles to development of clinical legal education were the higher demands on methodology and organization within live-client clinics, existence of apprenticeships as a first stage of legal professions, legal obstacles such as non-existent student practice rule, the organization of legal practice and lack of social justice sensitivity at law schools. other common obstacles perceived by starting clinicians in europe are the fact that many law teachers are members of the bar and the bar opposes legal clinics as unfair competition due to potential low quality of advice, and criticizes clinics due to lack of insurance and confidentiality. the story of legal clinics in olomouc continues in 2002, when a very young dean, michal malacka, decided to re-establish legal clinics at the law school. there were two main reasons to do that – one of them was the ‘tradition’ or rather an institutional memory of having the clinic in the 1990s. the other was the need to distinguish the relatively new law faculty in olomouc from other, much more traditional and well-established law faculties in the czech republic. the clinic did not respect any basic rules of clinical legal education methodology, since it was organized and taught by the people with no experience in this area. in 2006, the law faculty in olomouc acquired a substantial financial support from european social fund,7 which allowed it to train the teachers in the clinical methodology and to 6 krieger, 2013, pp. 13-15. 7 project of hrd op “development of practical forms of teaching at lf pu” (reg. no. cz.04.1.03/3.2.15.2/0273), financed from the sources of european social fund and state budget of the czech republic. 96 develop a complex clinical programme, which is not only still operating, but steadily growing. at first, the clinical programme in olomouc was considered to be an experiment by other law faculties. however, after it became well established and positively appraised by students and professionals, the law faculties of charles university in prague and masaryk university in brno have realized the importance of having complex systems of practical legal education embedded within the law school curriculum, including legal clinics, and currently offer several clinical or skillsoriented courses. does it mean that the above-mentioned obstacles have been overcome? i have the impression that the recent intensive development of legal clinics in the czech republic (and also in other european countries) derives from understanding that traditional legal education was inefficient and did not focus enough on skills and professional values. the importance of skills and values as a qualification requirement for legal profession is clearly formulated in ccbe (council of bars and law societies of europe) recommendation8 similar to aba’s so-called maccrate report.9 the need for development of key competences during higher education is 8 ccbe recommendation on training outcomes for european lawyers, accessible at http://www.ccbe.org/fileadmin/user_upload/ntcdocument/en_training_outcomes1_1196675213.pdf; 9 american bar association, legal education and professional development – an educational continuum. report of the task force on law schools and the profession: narrowing the gap. accessible at: http://www.americanbar.org/content/dam/aba/publications/misc/legal_education/2013_legal_education_and _professional_development_maccrate_report).authcheckdam.pdf 97 http://www.ccbe.org/fileadmin/user_upload/ntcdocument/en_training_outcomes1_1196675213.pdf expressed in the resolution of european parliament.10 legal clinics were even recognized by united nations resolution.11 these documents were undoubtedly strong enough arguments to overcome the resistance of conservative members of law academia and the voices saying that clinical legal education is too cost-inefficient. however, other obstacles were not so easy to overcome. the newly established wave of law clinics is therefore still lacking with regard to student representation in court or filling the gap in the free legal aid system. it is striking that in many european countries, the social justice element of legal clinics is often neglected and underrated, or even non-existent, due to focus on simulation clinics or diminishing the extent of help provided by clinics to people in need. the change in overall attitude to legal education can be demonstrated on the influence of legal clinics on the law school curriculum. in olomouc, there are many members of the faculty who combine teaching of substantive, compulsory subjects, with supervision in legal clinics. this combination allows them best to understand the problems of traditional legal education, especially when compared to legal clinics. this experience leads them to improve their teaching methodology in substantive subjects and slowly changes the overall methodology in the curriculum. since 2006, the attitude to teaching changed significantly and lead to accreditation of 10 recommendation of a european parliament and council no. 2006/962/ec on key competencies for life-long learning, accessible at http://www.cmepius.si/files/cmepius/userfiles/grundtvig/gradivo/key_competencies_2006_en.pdf 11 resolution adopted by the general assembly of the united nations: united nations principles and guidelines on access to legal aid in criminal justice systems. accessible at http://www.unodc.org/documents/justice-andprison-reform/un_principles_and_guidlines_on_access_to_legal_aid.pdf, accessed on 30th may 2014, para. 61 (a), 71 (e), 72 (a) and (b). 98 http://www.unodc.org/documents/justice-and-prison-reform/un_principles_and_guidlines_on_access_to_legal_aid.pdf http://www.unodc.org/documents/justice-and-prison-reform/un_principles_and_guidlines_on_access_to_legal_aid.pdf a new curriculum in 2009, profoundly different from any previous law school curriculum in the czech republic. at this point, i come to the insights i have gained at the conference on judicial independence and accountability, which took place on 31st may and 1st june 2014 in brno.12 its main focus was the administration of judiciary and especially the functioning of judicial councils in different countries. it is remarkable that they were adopted in many countries in a wave, which was argued to be caused by international pressure but also by attractiveness and fashionableness of judicial councils. countries that resisted this trend were among others germany and the czech republic. in the presentations at the conference, a research was presented concluding that judicial councils in fact do not increase judicial independence. in several countries, the judicial council had the opposite effect – some of the top officials from within the judiciary used them to control the judiciary as a whole for their own purposes. i would like to make a parallel between the adoption of judicial councils and growth of clinical legal education in european countries. the basis for this parallel is the fact that the current developments in the area of clinical legal education can probably be also, at least partially, attributed to the fact that clinics are trendy and fashionable these days. and some countries with more conservative approach to legal education, for example germany, also opposed this trend. the positive contribution of clinical 12 you may find the detailed programme of the conference at http://jinepravo.blogspot.cz/2014/03/konference-politics-of-judicial.html 99 legal education towards the overall outcome of legal education system still has not been proven by a rigorous empirical evidence-based study – it is mostly based on belief of clinical teachers and clinical students.13 so put in simple words – many of us very much like the idea of implementing something, lot of other people say it is great, we ourselves consider it to be great (or maybe we just feel that we should not be the only ones without it), so we do it! i think there are two major lessons to be learnt from this parallel: first, it is important to be sure and to have evidence that clinical legal education really can achieve the goals that are usually attributed to it. most of the clinical teachers and students are intuitively convinced that legal clinics have these effects. however, latest research shows that intuitive conclusions can be very wrong, especially when there is strong bias.14 therefore it is of utter importance to rigorously research the outcomes of clinical legal education and present clear scientific evidence of their benefits. i am convinced that the conditions right now allow conducting such research very effectively and on global scale, making the outcomes of the research relevant and persuasive. there are several international clinical networks, which could serve as a platform for organizing and conducting such research. the second lesson to be learnt is that when adhering to a widely spread trend and adopting some new features (judicial councils or legal clinics), it is extremely important to do it well, especially if we ourselves are convinced that these new 13 for detailed analysis see krieger, 2013, pp. 30-33. 14 kahneman, d., thinking, fast and slow. macmillan, 2011. 100 features are really a positive development and want them to spread further. if we do not do it well and fail, we will significantly weaken the reputation of other people doing the same thing somewhere else, because we will be an example that it does not work or even works in opposite direction and that is excellent ammunition for critics and opponents. it means that becoming a member of international community of legal clinicians brings a lot of responsibility. luckily, clinicians all over the world are in my own experience extremely forthcoming and helpful people, who gladly share their know-how and provide help to anyone in need. the exchange of information is already working on global, regional and national scale. there are several associations, which serve as platforms for such exchange, there are regular conferences taking place all over the world, and there are many supporters of idea of clinical legal education among members of legal professions, ngos, international organizations, or human rights activists. going back to the questions from the beginning of this text, i would like to conclude that the environment of clinical legal education has definitely changed a lot. it is currently very open to innovations improving its results in the area of skills development and professional values. legal clinics are widely accepted as a very effective mean to achieve that. the sources of this change were the recognition of importance of practical methods of teaching on many different levels and in many different contexts. what does all this mean for the future development in clinical legal education? 101 all these factors significantly increase the importance of networking. there are several excellent examples of benefits of establishing a clinical network, be it on national level (cleo in uk, clea in usa or fupp in poland) or globally (gaje). several new networks are being established right now or have been established recently (european network for clinical legal education, francophone network on clinical legal education, jordanian association for legal clinics). this all leads to unprecedented global communication and exchange of information. it also means that clinics are not experiment involving a couple of (hundreds of) people anymore – clinical legal education is a massive and global phenomenon. however, the global clinical community should not get too comfortable and rest. there are certainly countries of regions (including europe), which still need significant help to make legal clinics a standard part of legal education. however, in my understanding, clinical legal education is not a goal in itself; it is just one of the steps on the road to achieve truly important goals on global scale, most importantly reforming legal education and achieving social justice for everyone. i think that now the focus within clinical legal education will shift from expansion to quality and effectively achieving these goals, (re-)opening questions such as “how can we improve non-clinical legal education by our clinical experience?” and “how can legal clinics have greater social impact?” 102 special issue: adrian evans festschrift designing and implementing an enhanced clinical program in the age of disruption. part one: the environment for clinic professor bryan horrigan[footnoteref:1] [1: ba, llb (hons) (qld), dphil (oxon); dean, faculty of law, monash university, melbourne, australia. i am grateful to emeritus professor adrian evans for comments, jarryd shaw for research assistance, elaine hall for creating and assisting with diagrams, and the anonymous peer reviewers for comments. all responsibility is mine.] clinical legal education (cle) has become a transnational project with a borderless community of expertise and support. no contemporary discussion of the globalisation of legal education and training is complete without appropriate reference to cle.[footnoteref:2] the annual conference of the international journal of clinical legal education in different corners of the globe is a testament to cle’s evolved global state and reach. far from being a niche area of legal education and law school activity, on a grander scale cle forms part of the ecosystem of socio-economic justice and broader access to justice under the rule of law, in ways explored in this article. [2: e.g. w. van caenegem and m. hiscock (eds), the internationalisation of legal education: the future practice of law, 2014 (edward elgar, cheltenham uk and northampton ma, usa).] accordingly, this two-part article takes as a starting point the inherent value of cle, existence of a global community of cle practice, and extensive body of pedagogical and other scholarship about cle by individual lawyers across all arms of the legal profession. it addresses from an australian decanal perspective some of the less extensively explored aspects of cle beyond its pedagogy, practice, and range, through the lens of contemporary law school environments under pressure from numerous disruptive forces confronting the university, legal services, and community legal sectors. this article begins by locating cle in law schools within the evolving societal and regulatory contexts for access to justice, before moving to a particular institutional example of how to expand and otherwise enhance a cle program – the ‘clinical guarantee’ offered by the faculty of law at monash university. it ends by connecting that earlier discussion to broader questions about the involvement of law schools and cle in contemporary lawyering, democracy, and social justice. in doing so, this article joins others in this collection in honouring emeritus professor adrian evans, based upon the festschrift celebrating his work and contribution to the international cle community at the 2018 melbourne conference for the international journal of clinical legal education. at that conference, i was honoured to make public the news that monash university had conferred the title of emeritus professor upon professor evans, to take effect upon his formal retirement at the end of 2018. emeritus professor evans thereby becomes the first emeritus professor from and associated with the clinical program at monash university’s faculty of law. his outstanding contributions over his career to international scholarship on legal ethics, clinical legal education, and contemporary lawyering[footnoteref:3] are matched only by his equally outstanding service, collegiality, mentoring, and care for his colleagues, students, and cle community colleagues. [3: e.g. a. evans, the good lawyer: a student guide to law and ethics, cambridge university press, melbourne.] access to justice and cle[footnoteref:4] [4: parts of this section use and amplify material first presented by the author at the annual council of australasian tribunals (coat) conference in 2016. ] access to justice is a fundamental political and legal issue in both developed and developing countries. it is co-existent with concerns for human rights, requirements of effective legal and judicial systems, conditions for the rule of law, and evolving features of democracy, in ways explored further below. arguably, the societal need to ensure adequate access to justice has never been more acute, given the current global inability to organise effective collective action or even litigation to address the emergency of climate change, with ripple effects for battles over water rights, modern slavery, political destabilisation, corporate inaction and abuse of power, migratory movements, and burgeoning refugee numbers. to that extent, access to justice is also connected to one or more of the world’s sustainable development goals (sdgs). the local and transnational significance of access to justice in countries that say they subscribe to the rule of law is captured in a speech by (former) chief justice marilyn warren from the supreme court of victoria, as follows:[footnoteref:5] [5: chief justice marilyn warren, ‘the access to justice imperative: rights, rationalisation or resolution?’, eleventh fiat justitia lecture, monash university law chambers, 25 march 2014, at p 4.] a recent international report on access to justice noted that in oecd countries ‘for many today the law is not accessible, save for large corporations and desperate people at the low end of the income scale charged with serious criminal offences’. in other words, only the very rich and the very poor can readily access representation in the courts. in short, if you find yourself needing to engage with a court or tribunal, you cannot afford a lawyer, and you do not qualify for publicly funded legal aid (which is never able to cover every legal need and is more thinly spread than ever), presently your remaining options are largely confined to seeking assistance from a community legal centre (clc) or law school-supported legal clinic, or doing it yourself – hence the growing significance of the topic of self-represented litigants. yet access to justice is imperfectly realised at best and a meaningless mantra at worst if justice is not really accessible to most people because they are neither corporations who can afford it nor criminal defendants in a trial. cle provides a clear pathway towards enhanced access to justice. in the good lawyer, professor evans defines and personalises cle and its fostering of lawyerly values for law students in the following way:[footnoteref:6] [6: adrian evans, the good lawyer, 2014, cambridge university press, melbourne, at p 12; original emphasis.] (y)our own emotional intelligence, client sensitivity, understanding of how the law works in practice, ethical judgment, and, through a real personal experience of social inequality, a sense of compassion for victims of injustice [are] qualities [that] are developed by best practice clinical legal education (cle) – a form of work-integrated learning (wil, also known as ‘service learning’ or ‘learning by doing’) that puts law students in a position of responsibility for real clients who are facing immediate and demanding legal problems. cle has been endorsed by the council of australian law deans (cald) and best practices for cle have been identified for law schools that offer such programs. cle is now much more than just an aspect of university education for aspiring lawyers. it has systemic, professional, collaborative, and community significance too. key recommendations from the australian productivity commission report, access to justice arrangements (‘a2j’), are illustrative of this multi-dimensional significance of cle. recommendation 7.1 says:[footnoteref:7] [7: australian productivity commission, access to justice arrangements: productivity commission inquiry report (report, volume 1 no. 72, 5 september 2014) 46.] the law, crime and community safety council [i.e. the successor to the standing committee of attorneys-general], in consultation with universities and the professions, should conduct a systematic review of the current status of the three stages of legal education (university, practical legal training and continuing professional development). the review should commence in 2015 and consider the: · appropriate role of, and overall balance between, each of the three stages of legal education and training · ongoing need for each of the core areas of knowledge in law degrees, as currently specified in the 11 academic requirements for admission, and their relevance to legal practice · best way to incorporate the full range of legal dispute resolution options, including non-adversarial and non-court options, and the ability to match the most appropriate resolution option to the dispute type and characteristics into one (or more) of the stages of legal education · relative merits of increased clinical legal education at the university or practical training stages of education · regulatory oversight for each stage, including the nature of tasks that could appropriately be conducted by individuals who have completed each stage of education, and any potential to consolidate roles in regulating admission, practising certificates and continuing professional development. consideration should be given to the western australian and victorian models in this regard. the law, crime and community safety council should consider the recommendations of the review in time to enable implementation of outcomes by the commencement of the 2017 academic year. (emphasis added) first, these sadly neglected recommendations rightly call attention to the need for both taking stock and developing a more nuanced view of what range and level of legal education and training should occur at each of its three discrete stages of university career, practical legal training (plt), and continuing professional development (cpd). secondly, all of cle, adr, and related work-situated education and training are together mainstreamed as core components of legal education and training for each of those three phases of legal education and training, as a joint or collective responsibility for the various arms of the legal profession at different points in a qualified lawyer’s lifelong learning and career. thirdly, the significance of cle as one prong of such a review is reinforced by the mainstreaming of cle within standard legal education at university and its heightened relevance for law school accreditation, law school competitive positioning, law student and university expectations, law student employment prospects, and employer and community expectations of job-ready law graduates. fourthly, these recommendations crystallise the relevance of a large group of equal stakeholders – government, courts, law schools, the legal profession, the legal aid community, clcs, and accrediting and funding bodies – in forming a key constituency and network for improving how legal education and training advances the community’s growing access to justice needs. in that enterprise, such a multi-constituent community also plays important professional, institutional, and societal roles that connect cle to access to justice, contemporary democracy, and the rule of law. finally, such recommendations go to the heart of what law schools can do in making cle part of the university student experience, through initiatives such as clcs as well as partnerships with courts and tribunals that also serve the wider public interest in enhanced access to justice. commencing from 2018 onwards, the monash faculty of law has started implementing a ‘clinical guarantee’, whose origin and implementation are outlined further below. we have also opened a cbd clinic for the first time in our faculty’s proud history of cle, and ‘monash law clinics’ – our new clinical identity – now operate in suburban, cbd, and overseas locations. our range of clinics has expanded beyond criminal law, family law, and general practice, to embrace international trade law, corporate governance and social responsibility, modern slavery, family violence, small business, public commissions and inquiries, and death penalty cases in the asia-pacific region, with further areas of coverage and expansion planned in successive phases of implementation. ‘think globally, act locally’ – the monash law experience the world-class law school that i have the privilege to lead pioneered cle in australian university legal education almost 50 years ago, and aims to continue leading the way in cle training, research, and innovation. ours was the first law school in australia to have a clinical program and clinic-based experiential legal education.[footnoteref:8] as described by professor jeff giddings in his landmark text on cle (long before he joined our law school as a staff member), the monash law faculty established a model since followed by other australian law schools that combines four key ingredients – law school involvement in cle, through ‘a live-client clinic’, located in ‘a community legal aid setting’, and drawing upon ‘a mixture of funding sources’. [footnoteref:9] [8: j. giddings, promoting justice through clinical legal education, 2013 (justice press, melbourne), at p 163.] [9: j. giddings, promoting justice through clinical legal education, 2013 (justice press, melbourne), at p 163.] the monash law faculty now pursues its involvement in cle by funding and staffing three clcs[footnoteref:10] with extensive cle programs, [footnoteref:11] providing work-situated student placements with courts and other organisations,[footnoteref:12] modelling relationships between courts and lawyers in delivering access to justice for local communities,[footnoteref:13] spreading the lessons of cle to international audiences,[footnoteref:14] and facilitating communities of practice for academic scholarship and expertise devoted to cle.[footnoteref:15] [10: monash law clinics @ clayton (formerly monash oakleigh legal service (mols)), monash law clinics @ melbourne cbd, and springvale monash legal service (smls) – the first two wholly funded and managed by the faculty of law, with some australian government and victorian legal aid funding support.] [11: llb students and jd students who meet eligibility requirements can do an elective clinical unit of one kind and duration or another, for course credit.] [12: more than 300 monash law students each year benefit from a variety of work-situated experiences in legal clinics, internships, and externships that are organised by the monash law faculty and its centres with community legal centres, law firms, courts, other legal organisations, and ngos in australia, asia, europe, and north america. ] [13: although well-developed in the usa, student appearance regimes are still relatively novel developments elsewhere. the long-term development of relationships and trust between local courts, local lawyers, and the monash faculty of law’s community legal clinics has reached the point where local courts by leave permit students to represent needy clients in court under the supervision of a qualified legal practitioner. in practice, very few requests for such leave to appear are refused by judicial officers. many alumni and local lawyers who are familiar with this system offer to provide such supervision in court to enable this form of in-court student involvement in facilitating access to justice for people who cannot afford it and do not receive any legal aid. ] [14: two-way international exchanges of clinical legal training and expertise are provided through a variety of means in the monash law faculty’s cle program. a visiting clinical scholar scheme funded by the susan campbell memorial fund provides for a period of residence with the community legal centres for an international expert in clinical legal training and scholarship. in addition, the model of cle pioneered at monash law has recently been the subject of site visits and exchanges involving judges, legal practitioners, legal academics, and law students from countries such as vietnam and indonesia. the lessons of the family law assistance program (flap) are being shared with local courts, lawyers, law schools, and communities in indonesia through a publicly funded research project in partnership with other organisations. ] [15: for example, see the various contributions to cle training and scholarship by the monash law faculty outlined in: jeff giddings, promoting justice through clinical legal education, 2013, justice press, melbourne. ] as an organisation with collective responsibility for thousands of clients and their families who cannot afford a lawyer and who do not qualify for free public legal aid, and with a significant stake in three of victoria’s active community legal clinic sites of operation, the monash law faculty is also a major stakeholder in access to justice and governmental, professional, and community debates about it. accordingly, the faculty made a submission to the victorian government’s 2016 access to justice review and participated in follow-up governmental discussions aimed at implementing its recommendations, together with clcs and other stakeholders. it is another illustration of what cle-engaged law schools contribute as participants in a broader ecosystem of legal and policy reform in a fair and just society. strategic and resourcing implications of ‘the clinical guarantee’ in 2017, the faculty made a public commitment to have a ‘clinical guarantee’ for its law students. the journey towards this public commitment is instructive. it was neither accidental nor easy. under the clinical guarantee, all commencing undergraduate law and jd students from 2018 onwards who want and qualify for it have the opportunity of at least one clinical experience during their law degree for course credit. it gives them real-life work experience and inculcates an ethic of service and professionalism, while doing something that also contributes to access for justice for those most in need of it. so, a natural starting point for this discussion is the strategic significance of embedding cle in a law school’s dna and at scale. many clinical legal academics and practitioners across the globe operate with scant resources and support, toiling largely alone with the help of a few like-minded academic colleagues and local lawyers if they are fortunate. while passionate about the value of cle, their particular clinic(s), and the importance for their students and community clients, they often operate with less than fulsome understanding, recognition, and support from their other academic colleagues and institutions. the dividing line between clinical legal academics and other legal academics reflects deeper gulfs in orientation, experience, and valuing between legal theory, substantive law, and legal practice. how do a law school and its management and staff bridge this divide, if it is a reality to any extent for their constituency? more significantly, how is cle embedded in a law school’s dna and at scale from an institutional and strategic perspective? every dean at every law school anywhere in the world with a cle program could offer something of value about the numerous paths available and the issues to be navigated on that journey. some of those lessons will be bespoke to a particular law school in question, and others will need sorting as different species of the same genus, given the various permutations of legal clinics that are possible. still, some broader patterns and common themes are discernible. documenting and analysing such things from the reflective standpoint of those charged with the care of a law school and its experiential education is just as valid and necessary an object of legal scholarship as anything else,[footnoteref:16] although it is not as voluminous as other aspects of cle and broader legal scholarship. to that extent, this article also seeks to fill a gap in the literature. [16: eg m. coper, ‘my top ten tips for good deaning’ (2012) 62:1 journal of legal education 70; and m. m. barry et al, ‘exploring the meaning of experiential deaning’ (2018) 67:3 journal of legal education 660. ] first big step – strategic alignment and positioning the first big step in developing and launching something as ambitious and extensive as monash law’s clinical guarantee lies in strategic alignment with institutional values and history, strategic priorities, and competitive differentiation from other law schools. like many law schools, ours has a long-standing commitment to social justice, community lawyering, and access to justice more broadly. as a law school founded from the outset to be innovative and different from more traditional counterparts, engagement with cle became an important way of translating those values into reality. our publicly declared ambition as a law school is to have the leading blend of international, clinical, and technological expertise for our educational and research audiences in australia’s near region. victoria is a full legal education market, with eight accredited law schools, not all of which offer both an llb and a jd as equal pathways to admission as a legal practitioner, and none of which have anything approaching the scale and resourcing commitment of the clinical guarantee, as a differentiating feature in the increasingly competitive world of attracting the best students from all backgrounds and destinations. in short, cle and the clinical guarantee are a good fit for our past history, present circumstances, and future trajectory. second big step – resourcing and implementation the second big step is to plan and resource such a large-scale clinical commitment. everyone knows that the best laid plans can come unstuck if their implementation and resourcing are not adequate. for something as strategically significant and resource-intensive as the clinical guarantee, with a need to bring both faculty and university stakeholders on board, and without sufficient business development capability in-house, we developed a brief for and with external consultants on the business case assessment for the clinical guarantee, with a multi-year projection, phased implementation, and return on investment. most importantly, especially in convincing academic sceptics and building cross-institutional consensus internally, we had strong support and guidance from our alumni and the representatives of various arms of the legal profession on our external professional advisory committee. strategic business case to convince all stakeholders in terms of normal institutional politics, the strategic business case was an important step in socialising such an ambitious and resource-intensive proposal at both university and faculty levels, including within the internal clinical community. the business case rests upon a mixed funding model, with contributions from each of the annual operating budget (funded largely by student teaching income), a dedicated philanthropic and alumni campaign as part of a broader university-level fundraising campaign, and retained strategic investment funds based upon annual surpluses from exceeding university-set budget targets, in addition to pre-existing annual governmental funding for clinical programs providing access to justice. such a mix of funding is essential in an national tertiary sector environment that lacks widespread institutional endowments and a culture of alumni philanthropy (as in the usa), and without recourse to other regulated funding mechanisms, such as access on public interest grounds to interest accrued on funds held in trust for clients by their law firms. institutional and other funding at the same time, no institution could move quickly or easily from not having a cle program to having something like the clinical guarantee, at least not without a dedicated multi-million-dollar bequest or donation to that effect anyway. long before our law school entertained the idea of the clinical guarantee, we already made regular multi-million-dollar commitments annually to prioritising and resourcing our existing cle program, and to supporting our involvement in more than one clc. a natural result of our involvement in more than one clc, and our status within victoria and australia as a leading ‘player’ in delivering access to justice to thousands of people who are most in need of it, is a recent move towards one monash law identifier (or ‘brand’) for our clinical efforts across various locations and with multiple partners. other important sources of pre-existing institutional funding support come from individuals and foundations in philanthropic donations, a dedicated faculty fund whose interest supports small annual bids from each of our clcs in rotation, and the publicly supported sue campbell fund.[footnoteref:17] the latter honours the memory of one of the pioneers of our cle program and facilitates visiting cle experts from overseas and an annual oration in her memory that brings together the local clinical community – another aspect of our broader leadership role in this field as a leading clinically-orientated law school. [17: the late sue campbell was one of the pioneers of monash law’s clinical program: see richard fox and adrian evans, ‘clinical in legal teaching to get justice’, the age (melbourne, 18 april 2011) 12. ] every single alumni i meet who went through our cle program almost always says that it was the most valuable experience of their university legal education, not least in making law real and come alive for them, and often in stimulating life-changing career choices because of their clinical experience. still, most of those alumni went through law school when student numbers were smaller and anyone suitable who wanted a clinical option got one. those alumni are taken aback when i report that we are not able to provide the same life-changing clinical experience for all suitable current students based just upon governmental and university funding, and without their philanthropic and in-kind support. leadership and recruitment another key component of resourcing cle generally and the clinical guarantee in particular from a decanal perspective is the attraction and retention of appropriately skilled staff and partners. resourcing and replenishing leadership in the clinical space is just as significant as other faculty recruitment and leadership capacity-building. in terms of faculty governance and resourcing, the clinical program straddles functional and enabling portfolios servicing education, research, academic resourcing, engagement, and finance. so, academic and professional leadership is critical in ensuring the clinical program’s success. in this context, as deans come and go, it is important in gaining traction to have broad university support for cle as the exemplar of wil in law, so that cle initiatives are maintained throughout successive deanships. in the lead-up to developing the clinical guarantee, the faculty introduced new clinical leadership by creating roles such as the director of work-integrated learning and placements, with associate professor ross hyams – one of our most experienced clinicians and lecturers – becoming the inaugural holder of that role. starting with a platform of dedicated and passionate clinicians, we also recruited a renowned australian and international leader in cle and adr (professor jeff giddings) to develop and steer the team implementing the clinical guarantee, backed with additional recruitment of new ongoing staff with cle management and supervisory experience. that additional recruitment includes, for example, some part-time staff from the broader legal profession (e.g. with practical experience in family law) and partner organisations (e.g. a supervisor from the capital punishment justice project (formerly known as reprieve australia) to supervise the pilot anti-death penalty clinic). most pleasingly, the demonstrable prioritisation of cle through the clinical guarantee and the need to have sufficiently diverse clinical options to cater for student demand have together resulted in some existing academic staff with relevant substantive law expertise being willing to become involved in and learn about cle as part of their teaching allocations. other existing academic staff have looked for new ways to include a clinical component in classroom learning and assessment. the resulting ripple effects have been a more diverse range of topic areas for clinics, an increase in the number of both staff and students involved in clinics, and a cross-fertilisation of the clinical and non-clinical constituencies within the faculty. soon after his arrival, professor giddings was also appointed as the associate dean (experiential education) and – through that appointment – a member of the faculty executive committee, commensurate with such roles elsewhere, and hence with a key seat at the table where decisions ae made about faculty-wide strategic priorities, resourcing, recruitment, and external engagement. his appointment added new leadership and perspectives for the existing cohort of committed and passionate clinicians. it also required us to take the professionalization of our approach to managing the clinical program to another level, in terms of examining the inter-relationships between the various management roles within the expanding clinical program and locations. clinical spaces and amenities for staff, students, and clients the penultimate aspect of resourcing concerns the physical space and amenities provided for clinicians, supervisors, other staff, students, and clients. in committing to the clinical guarantee, we also made the case at university level for centrally allocated capital expenditure to expand and upgrade the available space for clinics at our two wholly funded and operated clcs. again, the strategic positioning, competitive differentiation, and demonstrable business case were all critical in securing central funding and support. the three-year roll-out of the clinical guarantee commenced in 2018. most importantly, the faculty of law expanded its own clinical facilities and locations, while also developing new external relationships and potential clinical partners. by the end of the first-year of the roll-out of the clinical guarantee, the faculty (with university support) had committed capital expenditure to expand its existing clinical facilities at the monash-oakleigh legal service (now known as monash law clinics @ clayton), and established a melbourne cbd clinical presence for the first time in the faculty’s history, mainly for jd students who already take classes and have physical studying and collaborative space as a cohort elsewhere in the same building. as part of other capital expenditure to improve and modernise physical amenities for staff and students, we designed and built a new multi-functional and state-of-the-art moot court with embedded technological capability, which also functions as a clinical space for face-to-face clinics, virtual clinics, and live teleconferencing between cohorts of students and clinicians at our various clinical locations. clinical criteria and roll-out at the same time, the range of internships, externships, clinics, and other placements were all re-examined through the lens of core criteria for being part of the clinical guarantee. as a result, some were upgraded to meet those criteria, and some were treated as alternative or incubating experiences for students who might later undertake a genuine clinical experience of sufficient duration, commitment, supervision, and client-based focus to meet the criteria. some clinical opportunities are first tested for viability as pilots through a generic clinical externship unit, especially where external partners are involved for the first time. there are also some specialised clinics – sexual assault and family violence clinics, for example – that work best when they are staffed by students who have already experienced a ‘general practice’ clinic and are assessed by clinical supervisors as being accomplished in a particular specialisation. other clinics that demonstrably meet the criteria for a high-quality clinical experience from the outset can be established and categorised as such. in addressing the inevitable demarcation issues and making the necessary judgment calls – eg is it a pilot clinic or is it a placement? – the leadership, dialogue, and collaboration amongst and between clinicians and academic managers such as the associate dean (experiential education) and the director of work-integrated learning and placements, for example, are essential ingredients for success. by the beginning of 2019 (ie the second year roll-out in implementing the clinical guarantee), as we headed towards increasing the number of clinical opportunities to deliver the clinical guarantee, the expanded clinical program began to take shape on three fronts simultaneously. first, the numbers of llb and jd students collectively increased in the core and long-standing clinical programs conducted at monash law clinics @ clayton (ie near the main university campus), monash law clinics @ melbourne (i.e. our cbd clinic, on a new and dedicated clinical floor of the building where we conduct our jd, llm, and professional seminar activities, in the heart of the judicial and legal precinct), and the springvale monash legal service. secondly, a large number of new clinics were established with external organisations, many of them as pilots in their initial year. as a result, a law school whose clinical experience and reputation was grounded firmly in family law practice, criminal law practice, and general practice, and pursued conventionally through subjects entitled ‘professional practice’, ‘advanced professional practice’, and the ‘family law assistance program’ (flap), found itself piloting clinics in an expanded range of subject areas, some in collaboration with clinical supervisors or co-supervisors form other organisations, and some with an international dimension as well. initially, those pilots included new areas as diverse as trade law, public inquiries and commissions (in conjunction with the australian law reform commission (alrc)), and death penalty case-work and clemency appeals – the latter in collaboration with the capital punishment justice project, as one of the first steps in a broader partnership to develop a region-first institute and southern hemisphere hub as part of a global network doing research, advocacy, and case-work aimed at universal abolition of the death penalty in our time. others in development extend beyond the traditional and local focus of clcs (eg a regionally focused modern slavery clinic), without diluting the core commitment to social justice and access to justice for a range of local community constituencies. managing drains on resourcing the final aspect of resourcing is one that often dare not speak its name, and which deans and associate deans can experience more acutely than others. time, energy, and focus are all valuable and scarce commodities in university life, for individual academics as well as academic and professional staff managers. regrettably, one aspect of resourcing is the adverse impact on available management capacity in terms of those commodities, due to change-resistance and sometimes active undermining by those with other agendas and axes to grind, beyond reasonable disagreement and differences of views. deans who do not bend easily to the demands, power plays, and timelines of others, even those who ostensibly support cle, can spend time and other resources managing such things that are otherwise better spent on active development of clinical and non-clinical opportunities for a law school’s various constituencies. at the same time, it is always both necessary and desirable to spend some time and resourcing dealing with reasonable levels of understandable anxiety of non-clinicians about feared diversion of scarce resources away from their areas, consensus-building and bridge-building across a diverse faculty for something as ambitious as an expansion of a clinical program, and even steering clinicians who benefit from an expanded clinical focus towards new ways of thinking and working in the clinical space. in my experience, the matters outlined above can all be considerable and time-consuming challenges. third step – organisational and individual alignment and culture change the third big step is organisational (and cultural) realignment, normalisation, and prioritisation of cle in the everyday policies, processes, and practices of a law school as an academic (and business) enterprise. legal academics commonly relate to the everyday business of a law school through the individualised lens of what it means personally for them in terms of employment category, formal workload allocations (including allocated roles), promotion and developmental opportunities, recruitment in their area of teaching and research interest, access to resources (including funding for research sabbaticals), and institutional and team recognition. mindsets, attitudes, behaviours, and hence organisational cultures are set (and reset) accordingly. ideal position the challenges here are familiar and long-standing ones for most law schools with a clinical program, but they are rendered more rather than less acute when the clinical program expands, gains traction, competes with others internally for resources, creates personal career development opportunities, requires significant time in upskilling (for clinicians in new clinics and new ways of working, and for non-clinicians in ‘learning the trade’ of clinical supervision and work), and achieves an elevated institutional priority, with all of that being seen through the individualised career-orientated lens of both clinicians and non-clinicians alike. the ideal position is one where all of the following hold true: (1) institutional employment policies and categories, and their correlative functions and performance criteria, are sufficiently flexible or innovative to accommodate what is needed to build and enhance a clinical program, with a combination of bespoke ongoing positions (eg clinical positions that are differentiated in some way from teaching-research positions) and part-time positions (eg part-time professors of practice, to optimise recruitment and engagement of senior members of the legal profession); (2) a significant number of non-clinicians become more involved in clinics, and a significant number of clinicians become more involved in non-clinical faculty work, with experiential, career developmental, and other benefits on all sides; (3) academics with relevant subject matter expertise make that available where relevant to clinical supervisors and students whose client-based work relates to that subject matter; (4) equal parity of esteem applies to clinical and non-clinical supervision, scholarship, and external engagement; (5) academics working in the clinical space secure competitive research grants and fellowships, take research sabbaticals, and become involved in research centres and groups that complement (but are not limited to) their clinical work; (6) the external engagement links that most law academics foster in their fields of research and work become contacts to leverage for potential clinical partnering possibilities too; (7) alignment is achieved between what happens in the clinical domain and a faculty’s overall strategic directions, profile-raising, philanthropy, and relationship-building (as in the case of our pilot anti-death penalty clinics and progress towards the establishment of a region-first institute focused upon abolition of the death penalty in asia); and (8) faculty recruitment, sabbaticals, workload allocations (for teaching and service), education performance standards, and research performance standards are all sensitised to clinical and non-clinical academic work and career progression. in the real world, of course, ideal conditions rarely occur. prioritisation, platforms, planning, progression, and pathways – i.e. the five ps – help in navigating real-life conditions. institutionally, conditions that create strategic institutional alignment, flexible categories of employment and workload allocation, and parity of esteem and opportunity (including career progression, sabbaticals, and resourcing) become foundational platforms for pathways of education, research, and engagement involving clinicians. as a clinical program matures in its profile, scope, and outreach, translation of external networks and links into client-related public advocacy, research grant collaborations, institutional and centre-based networks, and organisational partnering become developmental opportunities for clinicians and their students. where conditions are not ideal, or clinicians face something less than a receptive institutional reaction to clinical plans, obviously choices need to be made. however, those choices are not necessarily limited to sacrificing pursuit of any of the eight ideal conditions outlined above. nor are they limited to focusing upon internal links rather than developing external links, or pursuing educational initiatives at the expense of research-related ones. phasing, pilot schemes, and scaling up or down as appropriate are all techniques that facilitate smart choices, whatever the resourcing and other institutional constraints. the risk in making choices, either individually or institutionally, that do not treat a clinical program and all of its dimensions holistically is that traction is lost in mainstreaming and integrating a clinical program within the core institutional endeavours of education, research, and engagement. in making such choices, it can be helpful to step back and reflect upon the different angles from those choices can be approached. different individual and institutional dimensions are each engaged. a mixture of ‘top down’ and ‘bottom up’ approaches are available, with different priorities and emphases for initial actions on planning, developing, and embedding clinics institutionally, as represented in the following diagrams: this version of the diagram implies the power of the broader institution and the place of faculty, school, clinic and research centres nested within this version implies more generative power on the ground between clinic and law school, creating the conditions in which arguments for parity in the institution can be made in a way that senior management will accept. employment categories consider employment categories, for example. at our institution, we recently achieved sufficient diversity in academic employment categories to attract and retain dedicated clinicians and associated staff, with appropriate career development paths, workload allocations, and performance expectations to match. the variety of employment categories now includes: teaching-research positions; research-intensive positions; education-focused positions; clinical positions; and practice positions (eg ‘professors of practice’ drawn part-time from the legal profession, including retired judges and practitioners). education-focused and clinical roles each retain an aspect of scholarship, but focus upon research that is appropriate to their role – scholarship about legal education pedagogy and research-informed public submissions and advocacy, respectively. indeed, in an era of government-mandated institutional research quality and impact exercises, making clinicians write publications to meet indiscriminate research output targets can be counter-productive, while on the other hand clinically informed research and engagement can provide suitable material for case studies of research impact. in other words, the diversity of employment categories means that we do not try to force clinical ‘squares’ into clinically insensitive ‘round holes’. cognate research critical mass and scale diverse employment categories are not the only institutional infrastructure to be mined or leveraged in providing enhanced scaffolding for an expanded cle program. ‘breaking down the silos’ that can afflict a clinical program as much as any other part of a law school’s endeavours means looking for alignment between clinical practice and scholarship, on one hand, and a law school’s education, research, and engagement, on the other. for example, while law school clinics and associated clcs might characteristically focus upon public advocacy and law reform aimed at access to justice, there is no reason why at least some of those involved in such endeavours cannot also be researching in related and other fields, pursuing high-quality publications, competitive grant and contracted research opportunities, and even forming cognate research groups and centres. the harvard centre for the legal profession and equivalent centres and research groups around the globe, for example, undertake valuable evidence-based research about the future of the legal profession and the contemporary nature of lawyering.[footnoteref:18] [18: e.g. b. heineman et al, ‘lawyers as professionals and as citizens: key roles and responsibilities in the 21st century’, paper, november 2014.] interim conclusion three key dimensions of designing and implementing an enhanced clinical program are outlined in the first part of this article – strategic institutional alignment and competitive positioning in the legal education services market, institutional resourcing and implementation, and alignment and culture change from both organisational and individual perspectives. conceptually, those three dimensions are treated as being analytically distinct here for explanatory purposes, and they interact and overlap significantly in operational terms. as in most law school endeavours, culture and mindsets underpin everything. other aspects of organisational cultural change as cle evolves within a law school focus upon what counts as a worthy ‘access to justice’ constituency for clinical purposes, how clinical experience of legal practice matches or differs from other experience of legal practice (for both clinicians and students), how both cle and ‘access to justice’ initiatives adapt and respond to disruptors such as globalisation and digitalisation, and whether all lawyers – not just lawyers in clcs or law school-associated clinics – have responsibilities towards the constituencies who are most in need of access to justice, regardless of their own particular client base. such matters are already the subject of cle scholarship[footnoteref:19] and professional commentary[footnoteref:20] as well as public reports[footnoteref:21] and professional/judicial commitments[footnoteref:22] in some jurisdictions. the second part of this article concentrates upon some key cultural challenges for clinical programs that derive from various contemporary sources of disruption. [19: e.g. m. castles, ‘marriage of convenience or a match made in heaven: a collaboration between a law school clinic and a commercial law firm’ (2016) 23 international journal of clinical legal education 7; and a. thanaraj and m. sales, ‘lawyering in a digital age: a practice report introducing the virtual law clinic at cumbria’ (2015) 22 international journal of clinical legal education [ci].] [20: b. horrigan ‘the war against poverty is not optional for lawyers’, published in 2015 and accessible via the iba website for the poverty, empowerment, and rule of law working group, available at this link: http://www.ibanet.org/article/detail.aspx?articleuid=f9ce20d3-15f9-417e-a9d8-59198ea304b2. ] [21: e.g. k. miller, disruption, innovation, and change: the future of the legal profession, law institute of victoria, 2015.] [22: e.g. see the forward-looking agenda pursued by the utah supreme court and utah bar association in 2018-2019, as recorded in a statement from the utah bar association, 2019, which included key priorities such as: ‘(1) loosening restrictions on lawyer advertising, solicitation, and fee arrangements, including referrals and fee sharing; (2) providing for broad-based investment and participation in business models that provide legal services to the public, including non-lawyer investment and ownership of these entities; and (3) creating a regulatory body under the auspices of the utah supreme court that would develop and implement a risk-based, empirically-grounded regulatory process for legal services’. such things have implications for clcs, law schools, and their cle programs too.] crossing of clinic/ trad boundaries (2) academics as experts for the clinic (3) parity of esteem for activities (4) flexible/ innovative employment policies (1) clinic aligned with overall strategy (7) all external relationships have value (6) clinicians in research centres (5) parity in recruitment and progression (8) flexible/ innovative employment policies (1) parity of esteem for activities (4) clinicians in research centres (5) clinic aligned with overall strategy (7) parity in recruitment and progression (8) all external relationships have value (6) crossing of clinic/ trad boundaries (2) academics as experts for the clinic (3) 76 practice report: teaching and learning in clinic lawyering in a digital age: a practice report introducing the virtual law clinic at cumbria ann thanaraj & michael sales[footnoteref:1] [1: ann thanaraj is principal lecturer at cumbria university and michael sales is a software developer with over 10 years’ experience in public and private sector roles, currently working at newcastle university providing web and collaborative development support to the university research community.] university of cumbria and newcastle university uk. abstract this practice paper offers a modest proposition that could make law graduates more capable of serving their clients in a modernised and efficient manner. we propose that in addition to law clinics and other forms of experiential activities, law schools could add a new type of clinical component to their curriculum that teaches students to use technology to assist in the delivery of legal services. digital lawyering skills will help law students learn core competencies needed in an increasingly technological profession, and it may help close the gap between offering access to justice by making legal services available online in the most accessible and convenient way possible and in equipping law graduates with a modernised and digital legal education. this is a practice report describing a new technological invention at the university of cumbria law department, and offers information on the reasons behind the creation and how it works. a research paper on the validity of this work, framing the learning outcomes in the context of clinical education and evaluating its effectiveness will be published in 2016. a technological innovation in clinical legal education the cumbria virtual law clinic (vlc) is an online clinic in partnership between students, supervising tutors and pro-bono solicitors in practice locally. the vlc has been designed to enhance the legal education of students through direct experience of legal practice using the medium of a virtual law office under supervision and also to provide a public service for people who need legal advice and representation but cannot afford to pay for it. in working on the vlc, students are expected to have the full responsibility of their cases, undertaking such tasks as legal research, corresponding, drafting statements of case, interviewing clients and expert witnesses and to undertake online dispute resolution on under tutor supervision. all of these activities, including managing their case and keeping time will take place on the vlc platform. the theoretical framework adopts that of the intended learning outcome of clinical legal education,[footnoteref:2] embedded through the pedagogy of collaborative experiential learning with the opportunity to reflect on the transactional learning experience[footnoteref:3] to promote deep learning. [2: the clinical legal education is a term which encompasses learning which is focused on enabling students to understand how the law works in action. this can be done by undertaking actual cases or realistic simulated case work. leaders in the field of clinical legal education have written substantially on this area including kerrigan k., and murry, v ‘a student guide to clinical legal education’, palgrave (2011); hall, j and kerrigan k (2011) clinic and the wider law curriculum. international journal of clinical legal education, 15-16. pp. 25-37; gold, n., nurturing professionalism through clinical legal education, for the international journal of clinical legal education and european network for clinical legal education joint conference, olomouc, czech republic (2014)] [3: the philosophy behind transactional learning was created by paul maharg in maharg, p (2004) virtual communities on the web: transactional learning and teaching, in aan het werk met ict in het academisch onderwijs, vedder, a. (ed),rotterdam: wolf legal publisher, and it was then discussed further in maharg p, (2006) authenticity in learning: transactional learning in virtual communities, journal of information, law and technology (jilt). transactional learning is defined as learning activities and opportunities that exhibit the following design characteristics: active learning; the practical realities of transactions forming the basis of learning opportunities to reflect on learning; collaboration (both within and across teams process, or holistic, learning. immersion in professional role-play task authenticity] the virtual law clinic project has also been an opportunity for international collaboration as one of its earlier prototype was used in an international negotiation exercise between cumbria and a german law school. a paper on the design of the then prototype and the learning outcomes from the international collaboration project will be published in 2016.[footnoteref:4] [4: thanaraj, a., internationalizing education: evaluating the growth of intercultural communication and competency in students through an international negotiation project using an online law office, journal of pedagogic development, 2016, forthcoming. ] the design of the current vlc was completed in may 2015, and showcased in london, berlin and cumbria. after undertaking two pilot studies, the vlc has undergone a range of improvements and changes, taking on board feedback from law firms, student advisors and clients. a further pilot will be carried out by december 2015 with the aim of rolling out the vlc for full use by the public in april 2016. the current edition of the vlc prototype is accessible from www.cloudclinics.co.uk. the intended learning outcomes of the vlc project are: 1. to address the changes to the delivery of legal services · preliminary work is underway with the law society on developing the vlc · working with interested law schools to build a working group on · digital lawyering in clinical education to share ideas and showcase how we can equip our graduates for the 21st century legal profession. 2. to undertake and disseminate research in the field of digital clinical education · with the aim of exploring, understanding and ascertaining the future of the delivery of legal services · examining its impact on the gap in offering a modernised legal education to meet the education and training needs for the future legal industry. · identifying whether digital lawyering is a key component of a modern legal education and if so, what this means and the sorts of curriculum that needs to be developed and embedded into law programmes 3. to offer law students the opportunity to undertake digital lawyering experience · develop understanding and gaining experience in online dispute resolution for solving disputes, using the practice of digital lawyering skills and e-practice management, · gaining a realistic view of the future of legal services and the profession · develop understand the role of technology, privacy and security and how it affects legal ethics and constrains associated with this. · gaining transferable skills in maintain personal responsibility and accountability in both personal and group contexts online, working effectively with others online and undertaking decision-making in complex contexts. changes to the delivery of legal services in the uk and usa there is a real need to provide our community, both locally and nationally with free and easily accessible legal advice. the vlc also offers our students the opportunity to engage with digital lawyering, the skills, experience and ethics involved in this method of delivering legal advice. the legal services act 2007[footnoteref:5] has sought to liberalise and regulate the market for legal services in england and wales, to encourage more competition, facilitated by the creation and delivery of legal services though alternative business structures, thereby offering a more competitive and flexible approach to how legal services are being offered to clients. in a publication entailed ‘legal innovation 2013 new developments in an old profession’, andrew grech, the managing director of slater & gordon explains that ‘if we are looking to 2020 and 2030…i know there’s a big focus on online as a delivery system and of course that’s very important’.[footnoteref:6] similarly, the creator of the website road traffic representation, an online legal service for those faced with prosecution for motoring offences, solicitor martin langan argues that ‘the big game changer is the power of technology to pull back the curtain of mystique…’[footnoteref:7] [5: legal services act 2007, accessible at http://www.justice.gov.uk/publications/legalservicesbill.htm] [6: grech, a., (june 2013) in ‘legal innovation 2013 new developments in an old profession’, baker tilly publications] [7: langan, m., (june 2013) in ‘legal innovation 2013 new developments in an old profession’, baker tilly publications] a similar change is taking place in the usa. since 2010, the american bar association has set up a committee[footnoteref:8] looking into proposing new approaches to the delivery of legal services and new ways of working. in 2014, the state bar of michigan discussed extensively on how technology, globalization, and other forces are transforming the ways legal services are accessed and delivered[footnoteref:9] at its annual conference. [8: the aba’s commission on the future of legal services, accessible at: http://www.americanbar.org/groups/centers_commissions/commission-on-the-future-of-legal-services.html] [9: the aba’s commission on the future of legal services, ‘the future of legal services: changes and challenges in the delivery of legal services’ november 10, 2014, state bar of michigan, accessible at: http://www.michbar.org/file/generalinfo/pdfs/futurereport.pdf ] the concept of digital lawyering as a theoretical framework within legal education is a fairly new idea. there are still many unanswered question such as what does the legal professional need to know about how technology functions to be competent in the practice of law and what methods can we employ to educate law students entering a legal field which is technology-driven. in response to the impact of the legal services act 2007, the research paper by the legal services consumer panel in november 2014 on ‘2020 legal services: how regulators should prepare for the future’[footnoteref:10] identifies that technology will go to the heart of all aspects of legal services in the future, changing how legal problems are identified, people and businesses resolve their disagreements, the way consumers choose providers, how legal services are delivered and law firms run their businesses. [10: legal services consumer panel in november 2014 on ‘2020 legal services: how regulators should prepare for the future’, accessible at: http://www.legalservicesconsumerpanel.org.uk/publications/research_and_reports/documents/2020consumerchallenge.pdf] we submit that the use of technology attracts little overhead cost, can streamline workflow processes and case management, improve efficiency and make easier the ethical and malpractice issues through automated built-in checks, whilst enjoying an expanded client base with a competitive advantage of easy accessibility and flexibility. though this method of obtaining legal services, the public will benefit from greater access to services in our communities through collaboration between local organisations, pooling resources and streamlining referrals and communications. this would help ensure the people most in need of our services were able to be linked quickly with the organisation best able to provide it. we also submit that our legal education system could do more to offer a modernised education which sets up law graduates as the future of the legal profession. it is now time for legal education to adopt technology as a necessary and vital part of learning to become a lawyer through the integration of apps such as the vlc and teaching about issues such as issues relating to security, management of data and privacy, alongside the experience of learning how to undertake lawyering on a digital platform. the vlc created in cumbria takes this one step further to facilitate a client’s full legal matter to be handled through its virtual clinic. how does the cumbria vlc work? the vlc will aim to provide general information and initial advice on solving straightforward legal disputes. students and clients are able to securely discuss legal matters online and handle the transactions of a physical law office within a secure digital environment. all aspects of the case including all aspects of managing the case will be recorded and archived.[footnoteref:11] each firm contains 4-6 students specialising in: landlord and tenant law, family law, employment law, or consumer protection and general contract law matters. [11: the law society is yet to comment on the intricacies, formalities and ethical constrains of different ways of working, especially in the delivery of online legal services. thus, as a reference point, this paper will refer to the american bar association as a benchmark on good practice for the vlc development. the aba of the city of new york gave a formal opinion in 2008 stating that ‘a lawyer’s ethical obligations to retain and to provide a client with electronic documentation relation to a representation’. in practical terms this relates to the need for the lawyer must take affirmative action to preserve any digital communication regarding the representation that may otherwise be deleted or lost from their digital filing system. accessible at: http://www2.nycbar.org/publications/reports/show_html_new.php?rid=794] clients will request legal assistance through the contact form on the client portal. clients will need to provide information relating to themselves and their contact details. we appreciate that many clients are not technology literate and will need access to advisers on the telephone and documents in hard copy. the vlc sets out very clearly that all work on the case and all communications will take place virtually, and it is then for the client to decide if this manner of receiving legal services is something that is suitable for them. terms and conditions will be available for reading and clients will need to click to accept before proceeding with making a request using clickwrap agreements.[footnoteref:12] clickwrap agreements are binding and enforceable contracts provided the user has continued access to the terms they are clicking to accept.[footnoteref:13] [12: accepting terms and conditions in a client-advisor agreement for example using clickwrap agreements is a common method of clicking to accept the terms of agreement. these methods are commonly used in internet banking, social media, or when purchasing items. the application and critical discussions surrounding online contracts and viability of clickwrap agreements in the us is discussed by kunz et.al in ‘click-through agreements: strategies for avoiding disputes on validity of assent’, accessible at: http://www.steptoe.com/assets/attachments/2353.pdf and also by gupta, i, ‘are websites adequately communicating terms and conditions link in a browse-wrap agreement?’, european journal for law and technology, vol. 3, no. 2, 2012 accessible at http://ejlt.org/article/view/47/239. ] [13: in england, the unfair contract terms directive, which applies to all consumer contracts whether online or offline, requires member states to “ensure that contracts concluded with consumers do not contain unfair terms.” (council directive 93/13/eec of 5 april 1993 on unfair terms in consumer contracts). specifically relevant to internet contracts, the directive provides: “a contractual term which has not been individually negotiated shall be regarded as unfair if . . . it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.” (article 3.1) the acts allow for direct enforcement action by the consumer and also empowers the office of fair trading and other regulatory bodies to seek enforcement through the courts. see it consumer contracts made at a distance – guidance on compliance with the distance selling and unfair terms in consumer contracts regulation, publication no.672 (dec. 2005), available at http://www.oft.gov.uk/shared_oft/reports/consumer_protection/oft672.pdf ] tutors supervising the clinic will receive notice of a new registration and enquiry. based on educational benefit, timescale and complexity of the request, tutors will approve or reject client requests within three working days of receiving the enquiry. if the enquiry is deemed to be unsuitable, the vlc will signpost another source of assistance. the vlc will run collaboratively with local firms, pooling resources and streamlining referrals and communications. if accepted, tutors then add the approved user to the system. the client will receive a username/password combination and a link to the clinic. the student advisor/client relationship is formed through an agreement e-signed by both parties which sets out the scope of service, liability and timescale is clearly defined. the client will always have access to the terms and conditions of using the vlc service and the student advisor-client relationship agreement which they can refer to from the client portal. the student providing legal assistance will then initiate contact with the client through a built in communication tool to introduce themselves and explain how their request will be handled. tutors will supervise all work that is undertaken via the portal. clients can request research and advice to be undertaken. all request sent to the clinic will be confirmed in writing. case status will be updated when work is undertaken. clients and advisors can communicate via built-in secure email within the clinic. if further discussions are required, the client and student can hold a video conference session within the client’s portal itself. this will be recorded and achieved for the client, tutor and student advisor to review where necessary. once an appointment has been arranged for a detailed discussion, the client will be interviewed by two student advisors from the university and a volunteer lawyer from a law firm via the vlc’s communication tools. clients will need to upload all the relevant documents for the interview. all communications between the client and the advisors will be undertaken through the secure and encrypted portal with the strictest confidence. in addition to providing legal advice, student advisors will write letters and otherwise communicate with others on the client’s behalf. the legal assistance that will be provided includes legal advice, writing letters, speaking to relevant authorities or opponents, negotiating settlements to disputes, and representation in the courts. work undertaken by the student advisors under supervision will be free of charge. however clients may still need to pay their own legal expenses, such as the cost of instituting proceedings, or other expenses, such as getting to court. any documentations written or provided during this process is uploaded to the secure document repository within the clinic group. it is possible for the client and student to feed back to each other’s submissions using the commenting feature. all matters are recorded for training and auditing purposes. the security used in a vlc is the same high-level technology used by online banking to protect the information being exchanged. documents stored by the firm in a vlo are protected by this level of security and are accessible anywhere as long as there is access to the internet. once the matter has closed, the client and advisor will sign an agreement to bring the representation to a close. the case will be archived and is available for the client and advisor to request access. the client will be provided with a digital encrypted version of their file for download and printing. figure 1: virtual law clinic homepage figure 2: client contact form figure 3 group collaboration page figure 4: process management and document system the design principles of the cumbria virtual law clinic our intention was to create a secure platform which enabled new ways to communicate and collaborate with clients, supervising tutors and pro-bono solicitors, produce documents, settle disputes, interview clients, and fully manage client’s cases online using suitable and secure electronic tools and techniques. the prototype[footnoteref:14] that is currently designed has the ability to encompass the entire process of working with a client online from the start of the client-advisor relationship until the end of the case. it is bound in the real world by the jurisdiction of english law, expecting student advisors to demonstrate a high standard of care and demands close attention to compliance with the rules of professional responsibility, as they would in a traditional law clinic environment, supported with features for efficiency and compliancy such as keeping to limitation periods and deadlines with built in calendar and reminder notifications. [14: the current edition of the vlc prototype is accessible from www.cloudclinics.co.uk] a full research paper which is forthcoming in 2016 will provide a detailed evaluation of the pedagogical benefits of a vlc, drawing upon the already well-established theory of clinical legal education and various pilot studies which have been conducted through this medium in testing the system. nevertheless, the vlc encompasses experimental learning, generating confidence in students as their success is determined by their own efforts, allowing for detailed application of knowledge, reflection and self-examination. it gives students the opportunity to explain why they are taking certain actions and they are able to discuss and reconsider their actions. students can examine the legal and social issues in some depth, developing and acquiring improved skills in research, communication, interviewing, drafting, negotiating, and problem solving. further, the work undertaken through the vlc platform allows awareness of ethics and the professional responsibility and conduct of lawyers, whilst understanding the problems of different generation and background. this experience can add to their understanding of the position of others in society, and can increase their maturity and sense of responsibility. most importantly however, it equips students for the changes that is to come in future years in the delivery of legal services, using alternative cost-effective means, affordable and accessible for clients. given the rate at which technology evolves, and from the pilot studies we are undertaking, we believe that the features of the vlc will continue to expand to provide additional communication and security features. clinical legal education utilizing experiential learning of advising clients and dealing with all aspects of cases under supervision using technology and online delivery to offer accessible and efficient legal service clinical legal education – experiential and real practice of the law under supervision digital lawyering encompasses all the methods that a lawyer may use to practice law online, from the delivery of legal services online, collaborating and communicating, providing legal advice and dispute resolution online, including interviewing, investigating and advocacy digital lawyering – encompasses all the methods that a lawyer may use to practice law online, from the delivery of legal services online, collaborating and communicating, providing legal advice and dispute resolution online, including interviewing, investigating and advocacy figure 5: merging technology with clinical legal education a practical and secure client enquiry system, with built in jurisdiction and conflict of interest checks a process management and workflow system that ensures that administration of cases are dealt with automatically and efficiently. digital lawyering encompasses all the methods that a lawyer may use to practice law online, from the delivery of legal services online, collaborating and communicating, providing legal advice and dispute resolution online, including interviewing, investigating and advocacy ability to communicate with clients, student advisors and supervisors via recorded text-based, audio and video conferencing a fully secure and encrypted client portal for clients to receive updates on their case, communicate securely and review all work undertaken through the recording function figure 6: features of a functioning and secure vlc we began the project by considering the following factors: · software and application framework · identifying and exploring the viability of various types of technology, software and application frameworks which will be relevant to design and function of a virtual law clinic · questioning and determining how will the technology allow document automation and management, collation of client data, automated timesheets and calendar notifications and how clients and student advisors can utilize a variety of communication methods through the platform? our options were to use already available application frameworks as a backbone to creating a vlc we reviewed the use of blackboard and found that it had an intuitive interface and it was a familiar platform to many universities, students and easy to navigate for clients. however the standard version of bb learn did not have collaborative tools or document management and upgrading it to a premium version was expensive for a pilot project. we also reviewed moodle, which is another learning management framework used by many universities. we found that it was open source with an active developer community which made the development and administration of the software more supportive. however it was an unintuitive system with a slightly outdated interface and difficult to administer for the purposes of a vlc and the complexity and functionality required. next we reviewed wordpress, which is widely known for its blogging functions. it is open source with a very active developer community offering a large library of plugins and themes for customisation and adaption. because of the nature of wordpress and the large array of possibilities it offers in terms of what it can be used for it requires regular maintenance. we settled on wordpress, thanks to no costly subscription fees for document management and collaboration features, its readily available plugins for many required features, ease of use for clients, students and tutors, straightforward administration and upgrade procedures and its ability to rapidly develop new features. we configured wordpress to support multiple sites. each site refer to a ‘clinic’ and administering and developing the technicalities behind it allowed for a highly scalable development with any number of clinics and users. within wordpress, we utilized a plugin application called buddypress. this is a collection of collaboration tools for wordpress. we have created groups to organise participants within a clinic, messaging component allows user-to-user communications, buddypress docs for document management (allows users to upload, share and store revisions of materials), bastri for real-time video conferencing and buddypress group email subscription plugin used to notify participants of activity within clinic groups and to ensure the efficient management of each case within appropriate deadlines. · building the virtual law clinic exterior interface · we discussed with student advisors, pro-bono solicitors and law firms on what the look and feel of the vlc platform should be and what it should be capable of performing. we drew up a list of the case management protocol as a starting point. · the vlc had to be capable of managing enquiries from clients and the workflow process of how the enquiry reaches the clinic and then determine what happens once a case is taken on, such as the automated built-in checks on jurisdiction, applicable law, conflict of interest and so on. we have designed the vlc platform to allow tutors the flexibility to adapt to colour schemes, themes, university logo and image branding and an array of widgets useful to a clinic to display in the footer or side bar of each clinic. each clinic template is highly customisable. we wanted an easy to navigate through site content, one which is not overwhelming with too many design features that is distracting. tutors can quickly create new clinics using a bespoke administration tool. the clinics may be archived once complete. during administration upgrade, there will not be any disruption to the clinics or the materials held within it. apart from mimicking the reality of a law firm, we also wanted the vlc to provide the sorts of content that will be educational for the public in order to ensure that all clients are aware of how the vlc functions and how it works, information within the vlc is laid out upfront with the necessary information and advice relating to jurisdiction, that the legal services provided will be purely online only and the turnaround time for handling enquiries. liability clause, terms and conditions, disclaimers, client-advisor agreements are made available on all pages of the platform for clients and potential clients to review at any time. we have undertaken rigorous testing of the functionality of the platform including its security, efficiency and accessibility through two pilot projects involving 3 student advisors, 2 supervising tutors and 2 clients in each pilot. a third pilot involving a law firm will take place in december 2015 to ensure that the client’s portal facilitates client’s needs and expectations followed by making revisions to the portal after pilot feedback. · design and function of the internal site – the client portal · after a number of consultations with various law firms and student advisors, we came up with a list of design principles for the client portal and what it should be capable of doing. · a priority was the security, confidentiality and encryption of the portal · features of the portal such as communication tools, updates and progress on case, ability to contact student advisors, uploading and downloading of documentations were key design and function features having made an enquiry using the vlc enquiry form, and this being reviewed by the supervising tutor and accepted as a matter that will be dealt with by the vlc, the client is provided with a unique login combination which will allow access into the client’s bespoke portal. when the client logs in, they will be taken to their own portal. it is the primary feature of the vlc that facilitates the delivery of the online service. the portal also includes built-in communication functions multiple-way communications between the client, advisor, supervising tutor and others. the communication options are by written correspondence on the portal, audio or video conferencing. no special software is required. the client will require either a mobile phone or personal computer or portal electronic device with a camera. it is through this platform that the client and student advisor will communicate, exchange documentations, hold audio and video conferencing and obtain advice. the platform and its functionality is encrypted to keep the information secure.[footnoteref:15] [15: encryption is a process in which the data is converted into a state using an algorithm that is not readable without a key to decrypt it. information on the use and method of encryption can be accessible at: http://searchsecurity.techtarget.com/definition/encryption ] once client-advisor relationship is formed, the client will always have access to their case files and documentations either uploaded by the client or those prepared by the advisors. these are available for reviewing online, feedback and commenting. the portal also consists of reminders and basic guidance for clients on protecting their computers, backups, keeping their login details secure and security issues and reminders. tutorial have also been created to help clients navigate through the vlc and client portal. educational publications are also made available for useful general knowledge on legal updates. inside the portal, each communication between the client and lawyer is recorded and stored within the client’s portal space with a date and time of when the communication took place. documentations will contain information of when it was uploaded, when work was undertaken on it, when it was last edited and by whom. clients will not be able to delete or amend any information. all the data stored will remain on the hosted system and are subject to regular backups we thought that prospective clients may benefit from watching a short five minute tutorial video that explains the firm’s online legal services or how to register for an account and request legal assistance. before the client can access the full function of the client’s portal, the client is required to undertake a registration process which requires a completion of personal details, address and employment history. the client will then need to read and accept each of the terms and conditions of the client-advisor services using a clickwrap agreement process. in the terms and conditions of service we have included information on liability, disclaimers, nature of the service provided, the methods of communication available, the storage and return of client’s data and the recording of all transactions which take place on the portal. we will also request that the client uploads two sets of identification documents to the portal with a signature to confirm their identity. it is after this process that the client will be able to access the full portal and begin work with the student advisor and supervising tutor. challenges in designing a virtual law clinic a case of mistaken identity when we undertook focus groups to determine what the client portal should be able to do, we came across a number of misunderstood functionality of a vlc. we found out that a vlc is mistaken to be a simulated clinic. some thought that it was a platform to download forms and brochures about the law. although we will be working on developing a section on publications with updates on the law, this is not the sole purpose of the vlc. some also though that it was possible to submit an enquiry but also meet the advisors in person. it is only possible to contact the members of the vlc via the built-in enquiries form on the site, and the conversation between the client and advisor takes place via video conferencing through the secure client portal. our terms and conditions and information for clients section on the portal has addressed all of these mistaken identity factors. managing expectations we wanted to develop a system that was client-friendly ensuring that the needs of the client is taken care of both by the advisors and the functionality of the system itself. we have revised this numerous times to allow the system to automate responses efficiently whenever a client or prospective client gets in touch. for example, we formulated a simple automated response to prospective clients who make an enquiry using the built-in contact form. ‘thank you for your enquiry to the cumbria virtual law clinic. we will get in touch with you within three working days. if we are unable to assist you we will offer you some assistance in finding a suitable law firm at the soonest’. when work is undertaken on a client’s case, the client will be notified. ‘we are working on your case and an update on the progress of work will be made available to you in your portal at the end of the working day. please access the client portal with your secure login details to review and update any requests’. in order to ensure that the client is always aware and reminded of how the vlc functions, the terms and conditions, associated disclaimers and liability clauses are also set out on every page of the client’s portal for convenient reference.[footnoteref:16] [16: this is in compliance with the application of it consumer contracts made at a distance – guidance on compliance with the distance selling and unfair terms in consumer contracts regulation, publication no.672 (dec. 2005), available at http://www.oft.gov.uk/shared_oft/reports/consumer_protection/oft672.pdf] recommendations for security and sensitive data management student advisors, supervising tutors and clients must be educated about security threats when practicing on remote devices and how to mitigate those risks. this will form part of the introductory module to digital lawyering skills. clients and everyone using the vlc will need to be reminded that any data held on portable devices such as mobile phones, laptops and other handheld devices are sometimes not encrypted and the data can be accessible widely. if devices are stolen or misplaced, sensitive and confidential legal matters would be vulnerable. even if data is backed up, the information in the devices can be misused. the law society is yet to comment on the intricacies, formalities and ethical constrains of different ways of working, especially in the delivery of online legal services. thus, as a reference point, this paper will refer to the american bar association as a benchmark on good practice for the vlc development. in 2008, the association of the bar of new york committee[footnoteref:17] on professional and judicial ethics, gave their formal opinion suggesting that the lawyer must take affirmative action to preserve any digital communication regarding the representation that may otherwise be deleted or lost from their digital filing system. this includes discussing storage and retrieval of electronic data and documents at the beginning of client representation. similarly, in 2009, the arizona state bar stated that lawyers may store law office data online and use a system that allows their clients to access the information online as long as the lawyer takes ‘reasonable precaution’[footnoteref:18] to safeguard the security of that confidential information. [17: the aba’s commission on the future of legal services, accessible at: http://www.americanbar.org/groups/centers_commissions/commission-on-the-future-of-legal-services.html] [18: state bar of arizona ethics opinions: confidentiality; maintaining client files; electronic storage; internet, rule 1.6a accessible at: http://www.azbar.org/ethics/ethicsopinions/viewethicsopinion?id=704 ] using the advice given by the aba, we translate the expectations of safe handling of data into the following practical tips to ensure secure storing and access of data: · full disk encryption on the hard drive · avoid free wifi hotspots as these are shared public access points, sometimes with open access · ensure that the data stored is hosted on a server that the organisation controls and has access to, rather than a third party. · only the client and advisor and relevant supervising tutors should have access to the client information. reactions from pilot study having conducted two pilot studies, here are some of the reactions of students and a client having completed a full case on the virtual law clinic. jim, a final year student on the llb programme was a student advisor on this matter. he said “i couldn’t believe what we have here at cumbria. this is quite a cool idea and really innovative! so we had some training on how to use the vlc – straightforward. i knew what to expect from working in law firms – the same process but online. in fact this time it was easier. the system managed a few aspects of timesheets and deadline updates automatically… … today, we received our first enquiry, an employment law matter. i was amazed at how the vlc could automatically assign the cases to the respective firms. the enquiry after being approved by my tutor, just popped up on the employment law clinic inbox. everything we were doing on the firm, including talking to each other was automatically recorded. my tutor could check everything we were doing, and that made me feel more relaxed… …the video conferencing interview was so different to what i was used to. there were no problems in using it though and the client was really pleased she could see us and the conversation went very well. but i think it takes some getting used to not speaking face-to-face. my tutor has plans of using this to collaborate with law schools across the uk and europe. i am really excited to have some international experience in my studies”. sophie, is also a final year student and was an advisor on the employment law matter. she said “… my tutor mentioned digital lawyering – i never thought i would hear that in a small law school – and i am so glad that we are learning about how to run cases online… …i undertook some work experience in new york last summer and a few attorneys were discussing a shift towards online legal services…. ….i loved the experience from the exercise with the client we just completed on the virtual law clinic and i can see this catching on”. holly was our employment law client. she is also an employment lawyer by profession. she agreed to try out the vlc as if she was a client with the aim of exploring its potential in her own practice. she said ‘i completed an enquiry form and within an hour it generated a secure login id. i logged in a few hours later and found out that my case has been accepted by one of the firms. i was sent an automatic document explaining the how confidentiality and the security of the system worked. i felt this is the same as online banking, so didn’t worry about it… ….i think the students at cumbria are fortunate to be getting hands on real life experience of digital lawyering and how legal service can be delivered using technology…with online consultations in law already becoming the norm in america, i think the vlc allows students to learn all about practice and challenges of online law practice… …the software is really well designed and i felt very happy and comfortable. i would recommend this to others who may need some free legal help… future direction of the digital lawyering project phase 5 january-march 2016 client videos and pilot 3 to develop further short video clips and factsheets to make legal advice more accessible to clients. these will be made available by students under supervision. · a final pilot study will take place before the clinic is fully rolled out at university. · commencing work on funding application to the eu promoting the services of the clinic requiring advice on how best to market the virtual law clinic. our clients include new businesses, and clients requiring advice on housing and employment law. phase 6 february-april 2016 implemented in curriculum students will now being advising clients using the virtual law clinic. aim is to provide access to justice to those who otherwise cannot access and afford legal advice. we will be working with local businesses and start-up enterprises on offering advice on intellectual property, employment law or housing law matters. selection of clients criteria include: · the educational benefit of the legal issue for students · capacity and expertise to deal with enquiry · no conflict of interest in line with professional obligations · indemnity insurance · opening hours and term-time limits on clinic phase 7 march 2016may 2016 showcasing and training to members of staff at cumbria encouraging members of staff at uoc to undertake experiments and pilot studies using the virtual clinic for their own programmes. lunch time training events and showcases will be held phase 8 summer 2016 hosting a digital lawyering national conference: d-cle digital clinical legal education law schools will be invited to participate in a one day workshop at cumbria on digital lawyering skills and how best to educate our students for the changing future of the delivery of legal services. conference planning is underway. · creating a community of practice to influence the solicitors and barristers authority in the uk to understand the need to modernise legal education – a scoping paper will be provided. phase 9 july-august 2016 showcasing the vlc and its functionality · at various conferences · research papers phase 10 september 2016-september 2017 research projects and ongoing implementation into law curriculum aim: to bring about a modernised legal education this platform can be used by the wider university for further research and initiations for funding · initiating research projects on digital lawyering in curriculum · changing policy on legal education – equipping for digital delivery, legal ethics for online advice, what this means to legal education? phase 11 september 2016-september 2017 added value and wider dissemination the virtual law clinic will form a key part of the teaching and assessment tool across all law programmes, both ug and pg offered in cumbria starting in september 2016 setting up international collaborative partners further workshops on digital lawyering · thought leadership aimed at changing thinking about legal education · rolling out the virtual clinic to interested institutions and law practice firms future research as part of the project aims, we are intending to undertake some detailed research into how legal education can be modernised and aligned to the new developments and future trends of the profession. we aim to explore the changing policy on legal education, equipping for digital delivery, legal ethics for online advice, what this means to legal education. we will focus on: 1) what innovations are currently underway in law school curriculum to address the competency requirements of digital lawyering? 2) addressing the ethical constrains of delivering legal services online in addition to research projects, we will be hosting a digital clinical legal education one day conference at cumbria to disseminate further details of our upcoming pilot study and to demonstrate the full working of the virtual law clinic project. we would be extremely keen to hear from interested law schools to work with us or to utilize this platform in their own curriculum. references · legal services act 2007, accessible at http://www.justice.gov.uk/publications/legalservicesbill.htm · legal innovation 2013 new developments in an old profession’, baker tilly publications · legal services consumer panel in november 2014 on ‘2020 legal services: how regulators should prepare for the future’, accessible at: http://www.legalservicesconsumerpanel.org.uk/publications/research_and_reports/documents/2020consumerchallenge.pdf · the aba’s commission on the future of legal services, accessible at: http://www.americanbar.org/groups/centers_commissions/commission-on-the-future-of-legal-services.html · the aba’s commission on the future of legal services, ‘the future of legal services: changes and challenges in the delivery of legal services’ november 10, 2014, state bar of michigan, accessible at: http://www.michbar.org/file/generalinfo/pdfs/futurereport.pdf · the aba of the city of new york opinion on digital lawyering and ethics accessible at: http://www2.nycbar.org/publications/reports/show_html_new.php?rid=794 · kunz et.al, ‘click-through agreements: strategies for avoiding disputes on validity of assent’, accessible at: http://www.steptoe.com/assets/attachments/2353.pdf · gupta, i, ‘are websites adequately communicating terms and conditions link in a browse-wrap agreement?’, european journal for law and technology, vol. 3, no. 2, 2012 accessible at http://ejlt.org/article/view/47/239. · unfair contract terms directive, council directive 93/13/eec of 5 april 1993 · it consumer contracts made at a distance – guidance on compliance with the distance selling and unfair terms in consumer contracts regulation, publication no.672 (dec. 2005), available at http://www.oft.gov.uk/shared_oft/reports/consumer_protection/oft672.pdf · the state bar of arizona ethics opinions: confidentiality; maintaining client files; electronic storage; internet, rule 1.6a accessible at: http://www.azbar.org/ethics/ethicsopinions/viewethicsopinion?id=704 4 reviewed article: teaching and learning in clinic acknowledging the relevance of empathy in clinical legal education. some proposals from the experience of the university of brescia (it) and valencia (esp) andrés gascón-cuenca, university of valencia, spain., carla ghitti, università degli studi di brescia, italy & francesca malzani, università degli studi di brescia, italy.[footnoteref:1] [1: andrés gascón-cuenca ph.d. is a senior researcher at the human rights institute, legal clinic for social justice at the university of valencia, spain, carla ghitti ph.d. is a professor working in the labour law clinic, università degli studi di brescia, italy and, francesca malzani phd. is an associate professor working at the labour law clinic, università degli studi di brescia, italy.] legal clinical education is experiencing a great development in the spanish and the italian university context. nevertheless, it comes with new challenges that professors have not faced until now: students working in the field with people in situations of vulnerability or in complex realities. given that one of the major goals of cle is the preparation not only of professionals for the practice of law, but also people concerned about social justice and social diversity, this piece of research looks into the significance of working with students about the key role that empathy plays in the development of their relation with the people they assist. moreover, we will suggest some activities to be introduced in the clinical training plan with this purpose, and lastly, we will construct some final thoughts about this research and the feedback we obtain from our clinical colleagues. 1. working in the field: students facing up complex realities. legal clinics can adopt multiple forms to meet social justice goals, to help individuals and communities with their legal needs, such as penitentiary law clinic, public interest clinic, live-client clinic, and so on. within the vast reality, the legal clinics of the university of brescia and valencia mainly work with cases and projects related to public interest[footnoteref:2]. the services offered are directed to people qualified as disadvantaged or at least in a condition of being a weak party in their relation with the legal system. more specifically, we focus our resources in working hand in hand with disabled persons, inmates, homeless, single moms, lgtbiq, asylum seekers, roma people and many others groups that struggle in their relation with the law for the fulfilment of their rights. indeed, one of the main goals of our clinics is to encourage students to consider how law impacts the members of the disadvantaged groups. [2: mestre i mestre, r. m. (ed). guía práctica para la enseñanza del derecho a través de las clínicas jurídicas. (valencia, tirant lo blanch, 2018), 14 ff.] nevertheless, this works exposes students to stressful situations where they have to work with people in vulnerable situations and challenging realities (roma camps, prison, favelas, etc.). moreover, these particular scenarios may increase biases thoughts or stereotypes the students might have towards the minority groups they are working with, based on cultural differences that may cause misunderstandings and tensions between clients and students, unprepared to manage the emotions coming from that relationship, that might make them feel uncomfortable (embarrassment, bias, fear, anger…). given that one of the major goals of cle is the preparation not only of professionals for the practice of law[footnoteref:3], but also people concerned about social justice and social diversity[footnoteref:4], we work strongly with our students to teach them why building a collaborative relationship with clients is a landmark objective on performance of their legal work, and how to achieve it. thus, in the subsequent sections we will research into, firstly, the importance of empathy as one of the central values of clinical legal education, secondly, we will suggest some activities to be introduced in the clinic in order to work with students about empathy, and finally, we will construct some final conclusions about this piece of research and the feedback we obtain from our clinical colleagues. [3: garcía añón, j. «acceder a la justicia y hacer justicia: la función de las universidades, las clínicas jurídicas y las ong, y su impacto construyendo los límites del derecho», in garcía pascual, c. (ed.), acceso a la justicia y garantía de los derechos en tiempos de crisis (valencia: tirant lo blanch, 2018), 301-328.] [4: gascón cuenca, a., «la evolución de la enseñanza jurídica clínica en las universidades españolas: oportunidades y desafíos de la litigación estratégica en las clínicas de derechos humanos», revista de educación y derecho. education and law review 14 (2016): 5-7.] 2. empathy as a core value in legal clinic education: students’ reactions to human suffering. despite the changes introduced by the bologna process in the european higher educational system, both the italian and the spanish factual reality shows that law students continue to receive master classes in their formation, at the expenses of a more collaborative group-based one. even though the curriculum of the courses has been changed in order to implement the new criteria that came along with it, professors continue to mainly use a theoretical approach to the contents of their lectures, and specially when it comes to law area. given this situation, law professors are not used to manage challenging pedagogical situations, such as the ones introduced by legal clinics, derived from students working directly with the society in different scenarios. moreover, legal clinics dealing with social justice problems, work in especially complicated areas such as: ethnicity, gender, poverty, disability, groups that have been historically marginalized, and many others; making a clear stand for justice, equality, respect, inclusion and non-discrimination. accordingly, this section will introduce the importance of working about empathy within the legal clinics, in order to address some of the challenges that it poses to clinical professors and supervisors. if we research into other realities where clinical legal education has been longer implemented, we realize that clinical professors have faced highly intricate situations that require from them to work with students in areas that are far away from text books and master classes. just two examples to illustrate the above affirmation. professor stephen wexler has descried the law school curriculum as a one that teaches students to deal with law and the rich, leaving aside capital questions like how the law came to be like this or why there are certain groups of the society that are always struggling in their relations with the law (like poor people or ex-convicted)[footnoteref:5]. the second example is the one published by professor gavigan, where she describes the reality she encountered when supervising law students at parkdale community legal services. she depicts the situation as a wartime field hospital, waiting for the worst to happen, remembering that the work they did is like being in the trenches, and the communities they serve, felt constantly under siege[footnoteref:6]. these realities reinforce the ideas of cambron-mccabe/mccarthy[footnoteref:7] and marshall[footnoteref:8]. these authors argue that the forefront activity of a social justice legal clinic is working about the topics we mentioned previously, such as race, gender or diversity, instead of technical competences or a pure positivist knowledge of the law. [5: stephen, w., «practicing law for poor people», yale law journal 79 (1970): 1049-1069.] [6: gavigan, s. a. m., «poverty law and poor people: e place of gender and class in clinic practice», journal of law and social policy 11 (1995): 165-182.
] [7: cambron-mccabe, n., and martha m. mccarthy. «educating school leaders for social justice», education policy 19 (2005): 201-222.] [8: marshall, c., «social justice challenges to educational administration: introduction to a special issue», educational administration quarterly 40-1 (2004): 3-13.] furthermore, these two examples serve us to introduce a core concept for the work we do in legal clinics: empathy. clinical students collaborate in direct contact with communities and persons that have been left aside by the system, like homeless, people being abused, clients that live with hiv, people with functional diversity, with health conditions, and many others. people that had suffer from greatly distressing situations where their rights have been crushed by the most powerful machine we can encounter, the state. within this relation, the sorrow and the torment suffered by clients is somehow transferred to the students, and case supervisors and clinical directors can realize about this when talking with students, specially in case control rounds, where they debate and discuss with the rest of their peers about the cases or projects they are working with[footnoteref:9]. [9: besides our experience in this area, see: buhler, s., «painful injustices: encountering social suffering in clinical legal education», clinical law review 19 (2003): 405428.] previous studies have shown that teaching about dignity, equality and discrimination is not an easy task, as it evokes a wide range of powerful feelings and emotions in both students and educators[footnoteref:10]. when we add to this picture the work clinical students do with communities that have suffered from these behaviours, they react to this reality in different ways, from what we are going to identify as the professional approach to the over empathetic one. thus, we need to provide students with the resources they need in order to manage their empathy towards clients in order to avoid behaviours that can jeopardise or even damage that relationship and the outcome we are expecting out of it. [10: berlak, a. c., «confrontation and pedagogy: cultural secrets, trauma, and emotion in antioppressive pedagogies», counterpoints 240 (2004): 123-144.] as said before, when students encounter clients, and the latter share their traumatic stories and the emotions they have felt, like anxiety or agony, this situation has a challenging impact on students, as they have to deal with it in a twofold way, as human beings, and as future lawyers[footnoteref:11]. consequently, these situations where the rights of certain collectives have been violated, have to be approached from a critical point of view in order to deconstruct concepts like power, and its relation with discrimination and subjugation. this scenario gives us the occasion of discussing with students concepts like equality, justice, indirect or structural discrimination, all placed at the backbone of social justice. moreover, these principles are barely known by them, because they have been expelled or reduced to the ranks (all together with courses about human rights), from the law curriculum, in favour of more practical knowledge of the regulations of the legal system. [11: fletcher, l. e., and h. m. weinstein, «when students lose perspective: clinical supervision and the management of empathy», clinical law review 9 (2002): 147-155.] 2.1. student reactions to human suffering the relation lawyers (and students) adopt when working with clients might be pretty different depending on the case and its features. previous research has made a clear distinction between the traditional conceptions and the client-centred ones[footnoteref:12]. derived from these two major conceptions, we consider the following taxonomy: a) the detached professional approach; b) the over-identification approach; and c) the critical emotional praxis. in next paragraphs, we will research into their characteristics in order to make visible the risks they might have for our work and our relation with the people we are working with, and offer arguments for adopting the third model. [12: binder, a., p. bergman, and s. price, «lawyers as counsellors: a client-centered approach», nyl school rev. 29 (1990): 29-86.] a) the detached “professional approach”. under this conception, lawyers view legal problems as something completely disconnected from client’s emotions and non-legal concerns. in this perspective, lawyers “tend to regard themselves as experts who can and should determine, in a detached and rational manner, and with minimal client input, what solution is best”[footnoteref:13]. [13: chen, k., a., and s. cummings. public interest lawyering: a contemporary perspective (new york: wolters kluwer law & business, 2014), 290.] in a reality as the one described above, this approach may reinforce the vulnerability (victimization) of clients, reproducing a model of systemic psychological violence that might be present in the situation. the clients’ expertise, thoughts and feelings do not play a role in the decision making of the lawyer, as he or she adopts a position of life-saver. this kind of approach is set far away from an idea of clinical legal education as a tool to further social justice values and, among other, social inclusion. on the contrary, we encourage students to estimate clients’ perspectives, goals and values to find way of working contribute to their sense of efficacy end empowerment, avoiding hierarchical relationships. in this regard, if we rather choose to ignore this challenge we can found ourselves and our work, not only reinforcing behaviours that undermine the empowerment of the victims, by reinforcing ideas that represent dominant images of clients as helpless victims or people how have earned their suffering. but also, we will be failing to prepare students to engage with difficult emotional work that requires a shift in values, attitudes and behaviours, limiting their capabilities to address fundamental social justice issues[footnoteref:14]. so that, we have to promote students’ aptitudes and give them the required expertise for them to know, on one hand, how to avoid these pitfalls and, on the other hand, how to work hand in hand with communities to develop their self-empowerment on the given subject. when we allow clients to express themselves, we are in a better position to incorporate the cultural and socio-political vision to the concrete case. this work, not only allows us to both work from the roots to the top of the problem and build up self-empowerment in the community, but also, to overcome the idea of helpless victims, by letting them being the leaders of the cause and not mere observers or sources of information. a critical approach to this scenario helps us to dilute biased thoughts about minority groups, all together with the widespread image of lawyers as life-savers for people that cannot manage their own problems in a right way. [14: cambron-mccabe, n., and m. m. mccarthy, «educating school leaders for social justice». education policy 19 (2005): 214.] b) the over identification approach. whereas the professional approach builds strong boundaries between lawyers and clients, the over identification approach (or compassioned approach) denies any distance between them. when lawyers and students procced with a project or a case by this model, they jump into it with both feet trying to fight against the major problems of society like poverty, racial discrimination, structural discrimination, and so on, without controlling the emotions or the reactions these situations produce in them. they are driven by the willing of battle against injustice (which is a positive thing), but losing the perspective of the case as a whole or withdrawing the ability of making strategic decisions. this situation poses at least two main risks. on one hand this approach may reproduce a paternalistic model that promotes minorities as voiceless groups, that need the majority to guarantee their rights; on the other, becoming too emotionally involved in the clients’ legal and non-legal problems may make lawyers lose their necessary objectively while handling the case. by doing so, lawyer do not practice empathy, but a useless empty empathy[footnoteref:15], with no concrete benefits for clients. [15: buhler, s., «painful injustice: encountering social suffering in clinical legal education», clinical l. rev. 19 (2013): 412.] moreover, as stated above and generally speaking, the law curriculum does not introduce compulsory subjects where law is studied as a factor for social control. thus, students may be not aware of these relations of domination, and their work with the community risk to «reproduce dominant notions and understandings of suffering as a private emotional response of clients, located in the “non-legal” sphere, and therefore unrelated to justice and legal practice»[footnoteref:16]. if we lose sight of the social context and the role law plays in it, we might find ourselves enhancing the power relations that had created the discriminatory situations in the first place, by non-bringing them to the surface, making visible and counteracting them side by side with the affected collective. if our students observe client suffering from a pure private empathetically point of view, they will not be addressing the given problems from its roots, but the other way around, as they will see it as a problem created by the victims without any other correlations. [16: buhler, s., «painful injustice: encountering social suffering in clinical legal education», clinical l. rev. 19 (2013): 408.] c) the critical emotional praxis. turning down the previous two models, we consider the critical emotional praxis, rectius, empathy, non-only as a value but as a core lawyering skill that we, as clinicians, should promote end enhance in our students. according to the oxford dictionary definition, empathy is the ability to understand and share the feelings of another, otherwise than sympathy, which means feelings of pity and sorrow for someone else’s misfortune. when assisting people in a vulnerable situation, adopting an empathetic attitude facilitates to build up a relationship based on trust. by deconstructing and working with this definition and its components, we help students to understand why the detached professional approach or the compassioned one, have negative effects on their work and on the promotion of social justice[footnoteref:17]. later, as critical witnesses in their encounters with suffering, we teach them how to create a balance between empathetic and critical response, to understand the core of the structures of injustice[footnoteref:18]. we must use the force coming from the empathetic approach to overlap the concrete situation and observe the role that political decisions play in the case we are working with, in order to challenge them as the real forces that generate injustice. [17: sedillo lopez, a., «learning through service in a clinical setting: the effect of specialization on social justice and skills training», clinical l. rev. 7 (2001): 307-326.] [18: kaplan, e. w., trauma, social rupture and the work of repair, theatre topics (2005): 171-183, underlines a basic concept «there is nothing as vital to the understanding and communication of experience as distance».] in addition, students have to be able to critically identify the position they hold within the systemic forces that play a role in their society, precisely because the interrogation of students’ “emotional investments in specific assumptions and ideas is an important component of critical pedagogies”[footnoteref:19]. this is what zembylas calls critical emotional reflexivity[footnoteref:20], fletcher and weinstein identify as self-awareness[footnoteref:21], or franck identified as pedagogy of suffering[footnoteref:22] and pedagogy of responsibility[footnoteref:23]. the goal is to teach the students how to examine and manage their emotional responses, to be able to listen to the other people. [19: zembylas, m., «engaging with issues of cultural diversity and discrimination through critical emotional reflexivity in online learning», adult education quarterly 59-1 (2008): 61.] [20: zembylas, m., «engaging with issues of cultural diversity and discrimination through critical emotional reflexivity in online learning», adult education quarterly 59-1 (2008): 61-82.] [21: fletcherl. e., and h. m. weinstein, «when students lose perspective: clinical supervision and the management of empathy», clinical law review 9 (2002): 144.] [22: frank, a.w., the wounded storyteller: body, illness and ethics (chicago: chicago university press, 1995).] [23: martusewicz, r., and j. edmundson, «social foundations as pedagogies of responsibility and eco-ethical commitment», in d. w. butin (ed.), teaching social foundations of education: contexts, theories, and issues (london: lea, 2005, 71 ss.)] in the context of our clinics, where a great number of students belong to the same cultural and ethnic group, we have to invite them to reflect about their assumptions about other members of the society, in order to counteract stereotyped thoughts that put at stake the work we do with members of the society. this activity requires from students to exam their own experiences and assumptions towards social and cultural diversity, by confronting one's owns ideas about ethnicity, poverty, people with functional diversity, and so forth. likewise, it is also helpful to deconstruct concepts that have been use to maintain the status quo inside of these systemic relations of power, such as race or the traditional role of women as caregivers. apart from cases involving suffering clients, empathy has many rewards for lawyers: they become more “effective” in their job[footnoteref:24], improving their performances. generally, as said before, lawyer who can truly view issues as their client do, will develop a stronger relationship with them. [24: zembylas, m., the politics of trauma in education (berlin: springer, 2008, 35 ss.).] once a lawyer recognize that there are emotional components related to their client’s legal problem, she can fully understand their needs and provide a better service. 3. tools experiences of implementing empathy generally speaking, empathy is observed by society as an innate quality, a talent that some people have and others do not. nevertheless, our approach to empathy is somehow different. we consider that our work as supervisors must include exercises where students need to understand the necessity of having an empathetic approach when working with clients, and specifically, with vulnerable groups. as westaby and jones said, working with empathy in the legal profession «can provide both a more effective form of practice and a deeper appreciation of ethics and values»[footnoteref:25]. thus, these pedagogical instruments, not only help students to realize the key role that empathy plays in their relations with clients, but also, they are a mean for students to retain this knowledge as a part of their expertise for the future. [25: westaby, c., and e. jones, «empathy: an essential element of legal practice or ‘never the twain shall meet’?», int’ j. of the legal profession, 25:1 (2018): 107-124.] as said by many commentators, one cornerstone of the legal clinics is «the coexistence (…) of social justice aim and educational aims. the existence of this dual purpose makes clinics a forum that facilitates a better understanding of the nature of legal knowledge and legal practice and a critical reflection on how the right to access to justice is actually enforced»[footnoteref:26]. working about empathy in the legal clinics helps us to underline the importance of this reality, and as we have said, the legal clinic teaching methodology is one of the best approaches to empathy. [26: barbera, m., and v. protopapa, «access to justice and legal clinics: developing a reflective lawyering space. some insights from the italian experience», wp csdle “massimo d’antona”.int, 141 (2017): 22.] in the following sections, we will suggest some exercises we used in our courses in order to develop these threefold purpose, social justice, educational aims, and student’s empathy, in order to train better lawyers. 3.1. the so-called “steaming out exercises”. as said before, while assisting vulnerable clients students may fell embarrassment, fear, bias: emotions that can make them feel uncomfortable and become an obstacle in handling the casework. given this scenario we, as supervisors, should facilitate a process of self-awareness, helping students to 1) identity their feelings and 2) learn how to manage the emotional aspect of their legal work[footnoteref:27]. the idea is to let the steam out before our students blow, to get them rid of frustration and negative feelings. [27: fletcher l. e., and h. w. weinstein, «when students lose perspective: clinical supervision and the management of empathy», clinical l. rev. 9 (2002): 135-156.] 1) identify student’s conscious or unconscious emotional state it’s crucial in order to prevent this thinking from affecting their legal work and their relationship with the client. to do so, we suggest two activities. both of them must be conduct in a “safe place”: students should feel free to explore their own emotions and share their ideas. for that reason, introducing these exercises too early in the semester can be risky and inhibit further sharing. moreover, both of them include a debriefing session, to let the students reflects on the activity performed and capitalize the experience of the workshop. a) self-awareness exercise: the students stress out the possible bias they may have against certain target groups. sharing and discussing “common bias” instead of “own bias” help students to be more secure about exploring and identifying them. supervisors should engage a discussion about prejudices against inmates (or muslims, or homeless, depending on the case accepted by the law clinic) and ask students to share, at the beginning, common opinion about that target group and later, if students agree to, their own beliefs. at a certain point law teacher start exploring how much participants know about the target group, asking on what their opinion is based on (personal experience; newspapers; others). finally, supervisors should report data, statistics, and any reliable documents about the chosen target group (i.e. providing information about inmates’ level of education, family and cultural backgrounds, mental disease, poverty); if possible inviting representatives from the advocacy group to give a speech to the class. b) role play: “a step forward”: taking part to this exercise, also called “privilege walk lesson plan”[footnoteref:28] students experience what is like to be someone else in their society. the purpose of the activity is to learn to recognize how some factors can affect our lives even when we are not aware of. [28: privilege walk lesson plan – https://peacelearner.wordpress.com/2016/03/14/privilege-walk-lesson-plan/] before the class, prepare a list of statements related to money, religion, national identity, race, disability (v. g. “if you’re ill or injured, you can afford medical care”; “you can practice your religion without any restrictions”; and role cards (v. g. a 20-years old asylum seeker from syria”; a famous movie star, a blind student and so on) adapting them to the cases you are going to work on during the semester. in the class, follow these instructions: 1) create a safe atmosphere 2) hand out role card at random one to each student and tell him or her to keep it to themselves and to not show it to anyone. 3) ask students to get into the role and to build up a picture of the character. in order to help them, read out some questions (v. g. “what was your childhood like? what sort of house did you live in? what kind of game did you play? how’s your everyday life? what sort of lifestyle do you have? what are you afraid of?). 4) ask students to form a straight line across the room (or, if possible, across the university yard), leaving space in front. 5) tell them that you’re going to read out a list of statements and to take one step forward if the statement applies to the character, to stand still if don’t. 6) read out the statements and take pauses to allow students to move and to look around to check classmate’s position. 7) at the end, invite students to take note of the final positions. invite the students to sit down in circle, and start the debriefing session asking them what do they think about the exercise. in particular, ask them how do they fell about stepping forward of not, why did they decided to stand still and how was to play a role (how much did they know about the character?). in the final part of the class, introduce a discussion about how the exercise reflect society and how to shorten the distance. 2) after these initial steps, supervisor should assist students to manage their feelings, distinguishing between external triggers and internal over-reactions. in order to maintain a receptive environment, essential in the learning process, teacher may choose if addressing the student in a one to one meeting or, alternatively, in class. in both cases, should be adopt a problem-centred approach to the matter, locating the issue outside the student’s personality[footnoteref:29] and highlighting how it affected the relationship with the client and, consequentially, the casework. [29: fletcher, l. e., and h. w. weinstein, «when students lose perspective: clinical supervision and the management of empathy», clinical l. rev. 9 (2002): 135-156.] 3.2. collaborative or peer approach the usage of a cooperative learning environment in a law clinic is not an easy task to do, at least from the perspective of the spanish and italian university. students are not used to work with their colleagues, as the law curriculum enhances and promotes a purely individualistic model of learning and working in the class, which was not modified by the bologna process. nevertheless, setting up a law clinic requires from the professors in charge of the supervision a strong effort to overcome this model and advocate for a change on how the students interact with each other in these contexts. the benefits of the collaborative training have been discussed by many commentators in a wide range of fields, including clinical education[footnoteref:30], and it is precisely in this context, due to the commitment we have of working with social justice dilemmas, when we have to leave behind the competition model where students struggle among them to be the best, towards a model where the group success is a mean to achieve the formational goals. by creating an atmosphere where, senior clinical students share their knowledge, motivations and experiences with the junior ones, we will be upholding a self-directed behaviour where both groups will learn by gaining information from a variety of resources[footnoteref:31]. [30: prince, m., «does active learning work? a review of the research», j. engr. education, 93-3(2004): 223-231; gorkhale, a.a., «collaborative learning enhances critical thinking», journal of technology education 7-1 (1995: 1-4); burgess, a., k. black, r. chapman, t. clark, c. roberts, and c. mellis, «teaching skills for students: our future educators», the clinical teacher 9 (2012): 312-316.] [31: quigley f., «seixing the disorienting moment: adult learning theory and the teaching of social justice in law school clinics», clinic l. rev. 2-57 (1995): 37-72.] organizing this setting as a structured activity within the clinic will help to obtain a better outcome in the projects the students are working with[footnoteref:32]. it will add important elements of cogitation and adaptation from the social justice point of view, not only because senior students might have been working in similar cases where they faced similar empirical situations, but also because both groups will be able to debate and discuss about the ethical dilemmas that cases and projects pose, and the stances society has towards the groups with which the clinic works from a critical point of view[footnoteref:33]. this task regularly requires from students to realize and undercover the functioning of social relations of power and subjugation (whether structural or coming from the state), in order to identify patterns of discrimination our clients might be subjected to[footnoteref:34]. [32: see the activities proposed by mcquoid mason, d., r. palmer (eds), african law clinicians’ manual (durban: masgrave, 2013), 119-124, in particular about teaching ethics and professional responsibility.] [33: mthethwa-sommers, s., narratives for social justice educators. standing frim (new york: springer, 2014), 12-15.] [34: adams, m., pedagogical foundations for social justice education, 40-42, in m. adams and, l. a. bell, teaching for diversity and social justice (new yok: routledge, 2016).] moreover, this work will help us in two more formative areas: teaching for transfer and working with clients. on one hand, clinic students debating with their senior fellas about the cases they are working with, will add to the picture the necessity of adapting the knowledge they have acquired to similar or new situations. students-to-student discussions promote this activity as they will need to transform their expertise in order to guide the work of their junior peers, for instance by using brainstorming sessions where they confront what they know and what they need to know to better represent the interests of the project. and, on the other hand, it will help students to deconstruct previous stereotypes the might have towards clients that miss appointments or fail to follow the instructions given by sharing their experiences about this, and realizing that it is not a behaviour linked to a certain type of client[footnoteref:35]. [35: quigley, f., «seizing the disorienting moment: adult learning theory and the teaching of social justice in law school clinics», clinic l. rev. 57 2 (1995): 58.] summing up, these are the major areas in which the utilization of collaborative learning might help within a legal clinic based on the promotion of the values of social justice. 3.3. the psychological approach. we decided to interview a psychologist in order to understand, in a deeper way, the opportunity given by a correct use of empathy in our clinics. thus, we chose an expert who has been collaborating with the penal and civil court in brescia, as she has a great expertise working with inmates, victims of domestic violence, children abused or involved in parents’ problematic separations, among other people or groups in a situation of vulnerability. we decided to take this approach, not only because we are sure that a multidisciplinary perspective in necessary to focus on the different (legal, moral, psychological) implications the legal clinic education has for our students, but also because it is crux to improve the value of empathy as a skill for better managing legal strategies. in particular, because working in hostile atmosphere, as said before, requires some cautions and we need to prepare ourselves as teacher but also, and above all, our young student to face up these special situations. the implementation of empathy, as core value in legal clinic education is not an immediate goal. on the contrary, it is the result of a long-run process that requires some efforts and investments. the psychologist suggested us different useful tools and steps to reach our goal, that we can divide in these three macro-steps: 1) the first one is quite elementary: give our students a lot of information. let them be comfortable – or more comfortable as possible – with the new situation (if for example they have to visit a jail/prison, an asylum seeker camp describes the space; explain the access procedures: “you cannot carry the cell phone in jail”). the other steps are more elaborate, they demand an iterative or circular process. 2) in the second macro-step we can find some tools as for example steaming out (supra § 3.1.); intervision, which is an auto-training or a peer-training for teachers (the committee of teachers involved in the clinic share and compare experiences, problems, solutions)[footnoteref:36]. [36: epprecht c., «intervision: a group-based peer-supervision project by emcc switzerland», in bachkirova, t., p. jackson, and d. clutterbuck (eds), coaching and mentoring supervision: theory and practice (milton keynes: open university press, 2011, 265-272).] 3) the third macro-step provides a more specific professionalism (it is a really deeper step). it consists in implementing some therapies or techniques as for example mindfulness[footnoteref:37]; the tools are the same we often use in our courses even if without classify them in a specific taxonomy but the idea is to involve some experts (enforcing the multidisciplinary perspective). we can use these tools to improve a non-judgmentally approach, which may be frequent if our students have some biases or if they believe/promote some stereotypes[footnoteref:38]. [37: roeser, r. w., e. skinner, j. beers, and p. a. jennings, «mindfulness training and teachers’ professional development: an emerging area of research and practice» child development perspective, 6-2 (2012): 167-173.] [38: fulton, p. r., mindfulness as clinical training, in germer, c. k., r. d. siegel, and p. r. fulton (eds.), mindfulness and psychotherapy (london: guilford press, 2016, 59 – 75).] 3.4. others’ methodologies although the methodologies we just explain have been proved as fruitful for us to work with students about empathy, there is a wide range of other activities that can be used within the legal clinics to do so[footnoteref:39]. the experience of “seeing the world through another’s eyes, hearing as they might hear, and feeling and experiencing their internal world”[footnoteref:40] is an activity that can be performed by using other methodologies that can complement the mains ones introduced in the previous sections. thus, is not our intention to explain in detail the following exercises, but to point out that working about empathy requires a set of activities that move along with the clinical courses. so that, depending on the stage we are of it, an activity might be more adequate than the others, and professors are the ones in charge to decide which one should be implemented. [39: for example: angeles, l. c., and g. pratt, «empathy and entangled engagements: critical-creative methodologies in transnational spaces», geohumanities 3:2 (2017): 269-278.] [40: ivery, a. e., m. b. ivery, and l. simek-morgan, theories of counseling and psychotherapy: a multicultural perpective, 7th ed. (boston: allyn & bacon, 1993, 21).] firstly, performing mock interviews where some students adopt a role while being interview by their peers is a good dynamic to point out bias behaviours that they might have towards certain members of the society. this training might rise some important red flags, which can be used to develop the rest of the exercises about empathy during the course. secondly, it has been proved as an important exercise too, the use of documentaries for students to understand the complexities and ambivalences of empathy. when selecting them, we should have in mind that the projections must adopt a critical point of view with the relations of power and subjugation, hierarchy and exclusion, not only within our society, but globally. thirdly, the use of art in the legal clinics. art is a powerful instrument that can be used to deconstruct the concepts mentioned above such as power structures and discrimination[footnoteref:41]. poetry and scenic arts are valuables concepts, useful to make visible acts of intolerance, injustice, sexism, etc., that are present in our daily life but interiorized as ordinary patterns of behaviour. analysing the wording of poems such as pretty normal day (written by a mother participating in a project called sure start), or the message some paintings give us about the different roles people can adopt in the society, it is an interesting activity for the students to critically realize about how they interact with others. [41: foster, v., «the art of empathy: employing the arts in social inquiry with poor, working-class women» social justice 34 (2007): 12-27; foster, v., collaborative art-based research for social justice (oxon: routledge, 2016).] fourthly, teach students about the importance of active listening[footnoteref:42] when doing the interviews to clients, as this approach is essential for understanding their problems. students have to listen not only what the client says, but also to be alert to non-verbal communication as it is essential for better comprehend clients’ problems from a holistic point of view. [42: active listening, or as mcquoid mason says, empathetic listening. see: mcquoid mason, d., r. palmer (eds), african law clinicians’ manual (durban: masgrave, 2013), 164-165.] and last, but no least, invite representatives and members of groups that have been historically marginalized in our societies to participate in the training of the clinical students. first-hand testimonies of people that have suffered from biased or bigot conducts are a forceful vehicle to evidence the impact that the relations of power have in our societies, and how it affects specifically to certain groups, them members of whom observe their life aspirations reduced to the minimum, or their rights being granted poorly. these exercises are a brief comment of a vast set of tools that can be used to work about empathy within legal clinics. as said before, the best scenario is to combine some of them depending on the situation we are facing. 4. conclusions since legal clinics are a program of study aimed at teaching law through direct experience, it has always been clear to us the importance to reflect not only on what we teach and how we teach, but also to reflect on the resources we can use to enhance students legal and non-legal skills, such as empathy, as it has proved as a backbone concept in our work. even if we were not used to manage challenging pedagogical situations such as the ones introduced by legal clinics, we realised quite soon how empathy was relevant to our students, lawyers to-be, to increase their impact and effectiveness in the cases they work with. particularly, this topic raised our attention after the first visit students from the legal clinic of brescia did to the regional prison facility, and the feedback we got from them when they stated to work with the inmates. on one hand some students, frightened by the hostile context, were unable to focus on the legal problem and refused the idea of coming back to jail for a second time. their personal involvement severely affected their ability to manage the case at stake, due to their emotional reaction to the context and their concerns about the “non-friendly” environment they were facing. on the other hand, some other students’ approach to hostile contexts and vulnerable people was to keep the distances with clients in order to avoid any personal involvement. according to theses students’ view, a good lawyer is the one who does not leave room for emotional implications but only offers professional legal solutions to his/her clients. nevertheless, this approach does not take into account of the importance of building a mutual trust relationship with the client. this whole scenario was the main reason for us to start working together about this issue in order to put together synergies and design some activities that empower students to deal with situations. in light of these two opposite approaches, but equally inadequate, we realized that we lacked the necessary expertise to address these situations. so that we needed to build specific knowledge and competences in order to provide students with the necessary means to confront hostile atmospheres when dealing with clients, keeping in mind that empathy is essential to build a mutual trustful relationship with clients. as a result of this work, we decided to present its outcomes in different international meetings for having some feedback from colleagues that have been working already in this field and have confronted the challenges we were facing at the time. through these conferences (ijcle 2016, toronto; encle 2016, valencia; encle 2017, newcastle), and foremost, thanks to their contribution, our work has been growing not only with the intention of offering to students a better approach to the situations described previously, but also to avoid some of the pitfalls pointed out by our peers. accordingly, the major drawbacks that were identified by them are: 1. the lack of time for the preparation of the students in such detailed way only regarding empathy; 2. the inadequate preparation of ourselves as supervisors to deal with these situations by our own; and 3. the risk of working in a superficial way in such delicate areas like equality, discrimination, racism, and many others. once we evaluated them, we enhanced our work to confront these flaws, providing a solution to them. thus, even though we designed diverse exercises that can be included in the training students received when they first enrol in the clinical course, it is true that working in such complicated subjects requires from legal clinics a comprehensive programme to work about them. the ones that adopt a social justice model mainly work with groups in risk of social exclusion or with communities that have suffered from structural patterns of discrimination. bringing experts of other areas, like psychologist or sociologists all together with representatives of these communities have demonstrated as a strong resource to deconstruct biased thoughts about other members of the society that can jeopardise the work we do. nevertheless, it is crux to point out that the exercises suggested are fruitful to start the work, but as previously said, they need to be complemented by other actions, such as the ones suggested in the section 3.4. one of our duties as legal clinical professors is to make visible that the process of enacting and applying the law has not a neutral impact on the people. thus, our students should adopt an empathetic approach to their client’s problems with the intention of better understand their needs, enhance their access to justice and create a more inclusive society. bibliography adams, m. pedagogical foundations for social justice education, 40-42. in m. adams and l. a. bell, teaching for diversity and social justice. new yok, routledge: 2016. angeles, l. c., & pratt, g. «empathy and entangled engagements: critical-creative methodologies in transnational spaces», geohumanities 3:2 (2017): 269-278. barbera, m. and v. protopapa, access to justice and legal clinics: developing a reflective lawyering space. some insights from the italian experience, wp csdle “massimo d’antona”.int, 141 (2017). berlak, ann c. «confrontation and pedagogy: cultural secrets, trauma, and emotion in antioppressive pedagogies», counterpoints, 240 (2004): 123-144. binder, a., p. bergman, and s. price. «lawyers as counselers: a clientcentered approach», nyl school rev. 29 (1990): 29-86. buhler, sarah, «painful injustices: encountering social suffering in clinical legal education», clinical law review, 19 (2003): 405428. burgess a., k. black, r. chapman, t. clark, c. roberts and c. mellis. «teaching skills for students: our future educators», the clinical teacher 9 (2012): 312-316. cambron-mccabe and martha m. mccarthy. «educating school leaders for social justice», education policy 19 (2005): 201-222. chen, k. a., s. cummings. public interest lawyering: a contemporary perspective. new york: wolters kluwer law & business, 2014. epprecht, c. intervision: a group-based peer-supervision project by emcc switzerland, in bachkirova, t.,jackson, p., clutterbuck, d. (eds), coaching and mentoring supervision: theory and practice. milton keynes: open university press, 2011. fletcher, l. e., and harvey m. weinstein. «when students lose perspective: clinical supervision and the management of empathy», clinical law review 9 (2002): 135-156. foster, v. «the art of empathy: employing the arts in social inquiry with poor, working-class women» social justice 34 (2007): 12-27; foster, v. collaborative art-based research for social justice. oxon: routledge, 2016. frank, a. w. the wounded storyteller: body, illness and ethics. chicago: chicago university press, 1995. fulton, p. r., mindfulness as clinical training, in germer, c. k., r. d. siegel, p. r. fulton (eds.), mindfulness and psychotherapy, new york-london: guilford press, 2016, 59 75. garcía añón, j. «acceder a la justicia y hacer justicia: la función de las universidades, las clínicas jurídicas y las ong, y su impacto construyendo los límites del derecho», in garcía pascual, c. (ed.), acceso a la justicia y garantía de los derechos en tiempos de crisis, valencia: tirant lo blanch, 2018, 301-328. gascón cuenca, a., «la evolución de la enseñanza jurídica clínica en las universidades españolas: oportunidades y desafíos de la litigación estratégica en las clínicas de derechos humanos», revista de educación y derecho. education and law review 14 (2016): 1-15. gavigan, shelley a. m. «poverty law and poor people: e place of gender and class in clinic practice», journal of law and social policy 11 (1995): 165-182.
 gorkhale, a.a. «collaborative learning enhances critical thinking», journal of technology education, 7-1(1995): 1-4. ivery, a. e., m. b. ivery, and l. simek-morgan. counselling and psychotherapy: a multicultural perspective, 7th ed. boston: allyn & bacon, 1993. kaplan, e. w., trauma, social rupture, and the work of repair, theatre topics (2015): 171-183. marshall, c. «social justice challenges to educational administration: introduction to a special issue», educational administration quarterly, 40-1 (2004): 3-13. martusewicz, r., and j. edmundson. «social foundations as pedagogies of responsibility and eco-ethical commitment», in d. w. butin (ed.), teaching social foundations of education: contexts, theories, and issues. london: lea, 2005. mcquoid mason, d., r. palmer (eds). african law clinicians’ manual. durban: masgrave, 2013. mestre i mestre, r. m. (ed). guía práctica para la enseñanza del derecho a través de las clínicas jurídicas. valencia: tirant lo blanch, 2018. mthethwa-sommers. a. narratives for social justice educators. standing frim. new york: springer, 2014. prince, m. «does active learning work? a review of the research», j. engr. education 93-3(2004): 223-231. quigley, f. «seizing the disorienting moment: adult learning theory and the teaching of social justice in law school clinics», clinic l. rev. 2-57 (1995): 37-72. roeser r. w, skinner e., beers j., jennings p. a, «mindfulness training and teachers’ professional development: an emerging area of research and practice», child development perspective, 6-2 (2012): 167-173. sedillo lopez, a. «learning through service in a clinical setting: the effect of specialization on social justice and skills training», clinical l. rev. 7 (2001): 307-326. stephen wexler, «practicing law for poor people», yale law journal 79 (1970): 1049-1069 westaby, c., and e. jones. «empathy: an essential element of legal practice or ‘never the twain shall meet’?», int’ j. of the legal profession 25-1 (2018): 107-124 wexler, stephen. «practicing law for poor people», yale law journal 79 (1970): 1049-1069. zembylas, m. «engaging with issues of cultural diversity and discrimination through critical emotional reflexivity in online learning», adult education quarterly 59-1 (2008): 61-82. zembylas, m. the politics of trauma in education. berlin: springer, 2008. 218 practice report: teaching and learning in clinic delivering legal education through an integrated problem-based learning model – the nuts and bolts richard grimes1 university of york, uk richard.grimes@york.ac.uk judging by the number of enquiries received, visits made and conference discussions wide interest has been shown by academics and students alike in the form and content of legal education at the york law school (yls). yls has, since its inception, used a problem-based learning model for study across all foundation and most, if not all, optional modules and at both undergraduate (llb) and postgraduate (llm) levels. following repeated requests to explain how pbl works in an integrated legal education context this contribution sets out to describe exactly how these programmes are structured and will hopefully promote further discussion on the rationale behind and effectiveness of such an approach to study.2 1 richard grimes is director of clinical programmes at the york law school (yls), university of york. he would like to thank several colleagues at york for their vision, enthusiasm and determination in designing and implementing the york pbl model. in particular these are stuart bell (then then head of law), caroline hunter (the current head), lawrence etherington and ben fitzpatrick (now head of law at the university of derby and who was director of undergraduate programmes for the first 6 years of yls’ existence). 2 a more detailed account of pbl including the educational theory underpinning it can be found in problem-based learning and legal education – a case study in integrated experiential study, in a. font (ed.), models for legal education, revista de docencia universitaria, redu, barcelona, forthcoming december 2014. a more detailed description of the theory is set out in clinical legal education and problem-based learning: an integrated approach to study fit for purpose? in j. g. anon (ed.), transformations in legal teaching and learning: proceedings of the fifth national spanish conference on legal education, tirant lo blanch, valencia, 2013, 34. a further account in the context of using simulation in teaching and 1 mailto:richard.grimes@york.ac.uk at the start of year 1 of the llb programme each student at yls is allocated to a group – the student law firm (slf). each student remains with his or her slf for the entire study year. at the start of the following academic year students are assigned to a new firm. they work in their slf for each of the 3 years of undergraduate study and, if relevant, on the yls llm programmes.3 there are currently 12 slfs in each year on the llb programme. each slf is asked to discuss and formulate rules to govern how the group will operate, what it will do to ensure learning progression and how it will handle challenges and conflict. the learning environment, both physical and philosophical, is significant in terms of pbl in general and learning at yls in particular. so far as geography and logistics are concerned yls moved into purpose-built premises in september 2010. the focal point for learning is the pbl area which consists of a customised, large open space off which are satellite offices equipped with mini libraries (of key texts), smartboards (to capture discussion and to aid collaborative research – key features of the pbl process), associated e-technology and boardroom furniture, including a large oval table. each office has 3 slf ‘tenants’ – one from each year of study. each slf has assigned slots when they have exclusive use of the room and for the remainder of the time the space is bookable or can be learning law can be found in faking it and making it? using simulation with problem-based learning in legal education: simulation in theory and practice, c strevens, r grimes and e phillips (eds.), ashgate publications, 2014, chapter 8. the reason it is reproduced and/or adapted in several places is that interest in the programme has been considerable and the requests to publish it many. as far as i am aware this breaches no copyright rules! 3 the llm portfolio currently consists of: international corporate and commercial law, international human rights law and practice and (from october 2014) the theory and practice of clinical legal education. 2 used on a casual basis. the open area is free for students to occupy as they wish and it is, in practice, taken up for informal study, group work and low-key social activity (some of which is part of the designed programme and the rest entirely studentgenerated). as part of their induction in year 1 students will have had the opportunity to observe their more experienced colleagues conducting pbl sessions and will have had student mentors sit in to assist them in their early pbl encounters. the first few weeks of study are also devoted to understanding group work and related dynamics – an integral part of the first year legal skills module. each slf appoints a managing partner or chair and a scribe for every pbl meeting. the chair is responsible for facilitating the meeting and the scribe for capturing the discussion on the smartboard. both are also expected to contribute to the substantive discussion. the roles are normally shared by all slf members on a rotating basis. specific guidance is given by academic staff on the work of both chair and scribe. in year 1, each slf has a senior partner – a member of the full-time academic team – who meets with the slf at least termly (more in the first few weeks of study) to check on progress and to act as a focal point in the event of difficulty. the pbl system at yls runs on a weekly cycle. the students are handed each pbl scenario by their pbl tutor – a member of the full-time academic staff or a pbl teaching fellow. the teaching fellows are part-time appointments and include legal practitioners. all slfs for each study year deal with the same problem at the same time 3 the slf carries out the initial analysis of the problem following the ‘steps’ described below. in the process they agree learning outcomes and develop an outline research plan. this initial meeting takes around two hours. each slf member is then expected to carry out all of the research. they reconvene 4-5 days later to report on their research findings and to identify if further research and analysis is needed. this interim meeting is with limited tutor presence (for the first 30 minutes). they are free to work collectively and/or individually during the period between the initial pbl meeting and final pbl session in that cycle but must each produce an account of their findings (delivered orally on a ‘call-on’ basis). they meet with their tutor at the end of the week’s cycle to report on a final version of their findings and to be given the next scenario. at any one point in time a year 1 slf will have 2-3 on-going pbl scenarios to handle. the numbers of formal pbl sessions diminish as the years progress as other module (both compulsory and optional) fill the programme. the bulk of these use pbl methods but the sessions are not necessarily designated as pbl slots. nonetheless, as students become attuned to ‘pbling’ issues, this process tends to dominate both form and content of the learning process. the problems themselves are designed to address required curriculum content (for example covering the qualifying law degree foundation subjects) but the problems themselves will often cross legal topic boundaries thus requiring students to appreciate and distinguishing between concepts, for example principles of civil and criminal liability, sanctions and remedies or professional responsibility and ethics. 4 each slf member is given a guide to pbl in which the pbl process is explained. indeed the sample scenario set out below has been taken from that guide although adapted for current purposes. to summarise and paraphrase there are 10 ‘steps’ to pbl at yls.4 these are: 1. read and clarify the problem – the chair or other slf members read the words of the problem out loud to see if any terms or words need to be explained or researched. 2. identify parties and interests – the slf identifies all of the relevant parties in the scenario and what their respective interests are. 3. set out chronology of events – the sequence of events in the scenario is recorded to focus minds on the link between fact and law and to ensure that no significant development is missed. 4. mind-mapping what the problem is about including possible ‘learning’ issues – the slf looks in the broadest sense at what the scenario might encompass and to consider law in a non-compartmentalised way. any suggestions are recorded. they can be ignored later if deemed irrelevant.5 5. summarise and give problem a name – this is part initial analysis and part fun – a break from the analysis and something the students enjoy. often very 4 the yls pbl guide, which drew heavily on the model practised at the university of maastricht and york’s own medical school, refers to 7 stages but this has been expanded to 10 here to make the process clear for the uninitiated. it is modestly suggested that this expanded 10-point plan is an improvement on the original version. 5 the mind-mapping or, to use perhaps a more commonly understood term (but one that has attracted some criticism for its possible insensitivity on disability grounds), brainstorming stage is of critical importance. this is currently done at yls as a group activity with the chair expected to encourage everyone to participate. as in all things ‘yls’ there is currently a review of this process. some have suggested that group brainstorming can exclude certain trains of thought as people may be collectively driven, through indirect peer pressure, to follow others ideas rather than pursue their own. for a discussion of this see: sample j. nominal group technique: an alternative to brainstorming, journal of extension, 22 (2), 1984, 21 and pauhus p., dzindolet m., poletes g. and camacho m., perception of performance in group brainstorming: the illusion of group productivity, pers soc psychol bull, 19 (1), 1993, 78 5 silly names are proffered. as light-touch as this may appear it is also a means for recalling the problem when similar issues are discussed in the future.6 6. organise themes – returning to the analysis this is the stage where the slf has to manipulate all of the ideas produced by the mapping activity into research themes. this can be done in a number of ways and the task is made easier and more vivid if it is done on a smartboard where the issues identified can be saved and then physically dragged around the board to group themes with commonalities. 7. define learning outcomes from themes – once the themes have been identified and are clearly stated the learning outcomes should follow – one to a theme or in the case of broadly expressed themes more than one. typically 4 – 5 outcomes are expected. tutors are always present to ensure that the expected learning outcomes (which have been defined in advance at the curriculum design stage) are broadly identified by the slf. 8. plan, agree and carry out research – at the end of the initial pbl session all slf members should document the learning outcomes and consequential research tasks and in the 4-5 days before the interim session each member is expected to carry out the necessary research. 9. share results – this is a two stage process. the slf members report back on their research experience, their management of sources identified and any overt ‘findings’ at the interim meeting and then on those and any further results at the end of cycle meeting of the slf, with their designated tutor. 10. check to see if learning outcomes met – slf members, guided by their tutor, go through each outcome to ensure that the ‘answers’ given are appropriate. this is not an exercise in problem-solving (although variants of pbl may include an element of this as in the yls clinic where advice may be given to real clients) but is more problem and issue analysis. 6 at yls doctrinal issues are often revisited on future occasions in pbl and plenary sessions in what is termed the ‘spiral curriculum’ 6 the process then begins again with the next pbl scenario. typically a new problem is handed out by the tutor partway through the meeting that discussed the findings for the initial problem (that is at the end of the week’s cycle) and the first stage of the pbl process (stages 1-7) are then followed in relation to the new problem. the process is completed for the new problem over the course of the week as described above. a reflection week is built into each term to give the students a break from the rigours of on-going pbl and to give year 1 students the chance to meet with their senior partners to discuss personal and slf progress. let us now consider how pbl at yls works in detail. to do this let us take a fictional scenario and follow a typical slf through the process of ‘pbling’ eavesdropping, as they progress, on their work. for reasons of brevity, the dialogue is limited here to exchanges between the chair, scribe and up to 4 other students. if the full slf discussion were set out here it would be likely to take much longer to describe. the tutor has handed the following scenario to the slf: example dialogue today’s problem mr. davison rings you up. he is a long standing client of your firm. he sounds very upset and reports that he has been interviewed by a policeman who wanted to know more about recent events at st matthew’s, the local church of england (c of e) place of worship – where mr davison was, until recently, a regular member of the congregation. the newly appointed vicar is a leading member of a group which advocates gay marriage within the c of e. mr davison is theologically conservative and objected vigorously to the appointment of the new vicar. for some weeks now he, along with a few like-minded people, has held silent vigils every sunday outside the church entrance. they have been asked to move by the vicar and a passing police officer has told them not to block the footpath or road but mr. davison has maintained his right to protest. last week, he sent an e-mail to all members of parish council which read: ‘why listen to fornicators, blasphemers, hypocrites and liars? he who purports to lead the church is a maker of 7 false statements to police in order to have innocent people arrested. what is he afraid of? the truth should never be concealed.’ on sunday, things took a turn for the worse according to mr. davison. he says that the vicar came out and started shouting and swearing at him in a very aggressive manner. mr. davison was called a ‘bully’ and the vicar confronted the group as a whole shouting that he would not be subject to this sort of distress or harassment any longer. mr. davison said that he was overcome by the emotion of the situation and shouted back that the vicar was ‘the whore of babylon’. the police were called by the vicar and the local policeman came and warned mr. davison that he may have committed several public order offences particularly in relation to the harassment of the vicar. mr. davison insists that he was simply exercising his right of free religious expression and that he feels that it is a reasonable position for him to criticise hypocritical religious leaders. you ask mr davison to come in and see you later in the week to discuss the matter further. how might the slf might approach this problem? the dialogue, fictional but drawn from the collective experience of pbl tutors (including the author of this paper) and used as an induction device for students new to ‘pbling’, is not exhaustive but gives a snap-shot a flavour for what might be said. typically this initial pbl process (stages 1-7) takes around two hours. stage 1 – clarify unclear terms and concepts aims • to engage all members of the slf • to focus members on required task(s) • to start the process of learning • to ensure that everyone understands the terms used including technical expressions the chair (or other person nominated) should read out the full problem. sometimes this task is shared by group each member reading a section each. this can foster effective team work and the assumption of group responsibility. if the problem includes supporting documents, only the main problem needs to be read aloud at 8 this stage. words where meanings or pronunciation are unclear should be identified. they can be looked up directly in a legal or other dictionary and/or the prior knowledge of the whole group can be pooled. if words remain unclear they become a learning outcome. example dialogue member(s) of the slf has/have read the scenario out loud chair: is anyone unclear about the meanings of some of any words? student 1: well i’m not clear about parish council and also the words fornicator, blasphemer and ‘the whore of babylon’ – are they offensive? student 2: i think the whore of babylon is another name for the devil and the other two are also religious in nature. student 1: i’ll look them up in the dictionary or online. student 3: it seems to me that the definition of harassment might be important here? student 2: i think i know something about that isn’t it something to do with stalking people? student 3: but there is also a ‘public’ side to all of this – you couldn’t say that the group outside the church were ‘stalkers’ but they could arguably be harassing the vicar? student 1: it may have a specific legal meaning. student 4: yes i don’t fully understand that so can we make that a learning outcome? chair: that sounds like a good idea. scribe: so i’ll write on the board ‘identify and understand a legal definition of harassment.’ chair: hold on a minute did we put parish council on the board? scribe: yes, we can look that up in a minute. allok. stage 2 – identifying relevant parties and interests aims: • to consider the relevant legal framework that arises in the context of the problem • to identify who might be affected and how • to create a basis for the application of substantive knowledge to the given scenario and if necessary provide advice to one or more parties certain key information needs to be extracted from the problem before it can be further defined and analysed. the nature of this information might vary from problem to problem but will most often involve identifying: who is the client (if 9 applicable); what are the client’s interests; and, are there any other relevant people and interests that need to be considered? this approach allows the slf to concentrate on the relevant issues in the problem by setting out the real-world context for the learning. a problem in this sense is anything relevant to the interests of affected parties and may include social, moral or commercial issues as much as purely legal ones. at yls, pbl problems are often presented as client-focused. this gives a sense of reality and purpose. however in order to fully appreciate the client’s position and, pedagogically, to address the full range of doctrinal issues encompassed in the problem/curriculum it is essential that all parties’ interests are taken into account. some problems may be ‘clientless’ but the same process of identifying interests and basic facts/issues is important because it sets out a framework for further work. in the live-client clinic the same process is followed albeit that the end result addresses the client’s specific concerns, through an advice letter. chair: let’s look at the parties and their interests. first, who is the client? all: mr davison. chair: what are his interests here? student 2: clearly he wants to know whether he’s committed a criminal offence, doesn’t he? student 3: he may also want to know whether he has a lawful right to protest against what he considers to be immoral. chair: what about other interests? student 4: well the policeman and the vicar also want to know whether an offence has been committed. the vicar may also want to know whether he can stop the protests and disruption. scribe: what about the others who are protesting? are they allowed to continue? chair: what do people think? student 2: well, the church authorities may have a view on this. i know that there is a big division in the c of e about things like women priests and gay marriage. student 1: the villagers – they could be affected by the protests and what about the parish council whoever they are student 4: and then there is the policeman – if he is a village bobby he won’t want trouble on his patch 10 stage 3 – facts and chronology aims: • to identify key information which will set the context for the problem • to ensure that all of the problem is considered • to see the facts as a pattern that has developed and has produced, through its various stages, the given problem • to ensure that everyone has a similar understanding of the situation described in the problem • to understand that facts (and evidence) affect the application of legal doctrine when collating key facts the students (through the pbl guide) are advised to be careful only to record the basic information which can be gleaned from the problem. it is important to state the facts as read and make no assumptions or inferences. it is also to get the facts in the order in which they occurred to build an accurate picture of what happened as well as to capture all the relevant events. chair: let’s get a time line here. what are the basic facts? student 2: let’s call the client ‘d’. d along with others holds protest vigils over a period of several weeks student 3: didn’t the appointment of the vicar come first and then there was d’s protest? all: ah yes, that’s right student 1: so then, after d objected he and others start the vigils student 4: the vicar tells them to move and the policeman tells them not to block the path and road. student 3: d then sends offensive e-mail to the parish council chair: hold on there is an assumption there – shall we just say that he sends an e-mail scribe: last sunday, the vicar becomes upset and confronts d and the group. student 1: then d shouts at the vicar and calls him ‘the whore of babylon’ student 3: d is told by policeman that public order offences may have been committed and d then comes to ask us for advice. scribe: great, i’ve captured those key facts on the smartboard. 11 stage 4 – analyse the problem aims • to produce as many ideas as possible which assist in understanding the problem. • draw existing knowledge out of memory and apply it. • form and test links between law and facts. • encourage deeper thinking by analysing and synthesising recalled knowledge. • pool the knowledge of everyone in the group. having read through the problem, gathered the key information and attempted to see the problem as broadly as possible the next stage of the process involves an analysis of the problem at a much more detailed level based upon a range of ideas and assumptions that can be formed by the slf as a whole. students should now try to think about which specific areas of law may be relevant. some of these ideas may be based upon pre-existing knowledge and some from working with the facts or logical conclusions or even informed guesswork. this will involve initial brainstorming, where students are actively encouraged name anything they think may be relevant, followed by a detailed analysis where they discuss everything they’ve put down and figure out what is actually relevant and what may not be. many groups find this easiest by drawing a ‘mind map’ or spider diagram on the smart/white board. the main aim is to try to get down enough ideas to provide a solid base upon which to build further refinement. it is important that students feel comfortable to raise whatever points they feel are 12 relevant and not to be inhibited by thinking there is a right and wrong answer. each student may have a different perspective on the problem, all of which may be equally valid. the pooling of ideas is designed to stimulate others and allow comparison and discussion which is an essential part of the process. the result is a ‘list’ or ‘collection’ of ideas and possible issues. note that this is not (necessarily or likely to be) the definitive set of learning outcomes. it is starting point for further discussion. chair: ok, let’s brainstorm the issues in the problem? student 1: the policeman talked about public order offences and harassment so that must be a major focus for the problem. student 4: how can this sort of stuff become a criminal matter involving the police? isn’t it more of a personal dispute? student 3: the protest has been silent – no threatening or abusive language used, in the protest at least. has anyone been hurt? do we need to have a victim for a crime? student 1: well that may be true at least until the ‘whore of babylon’ line. also ‘other like-minded people’ have been involved student 2: it seems to be a bit over the top to call standing silently outside a church harassment. scribe: but it depends upon how many were with him – i’m not sure i would be happy crossing a ‘picket line’ of objectors. student 1: it’s obviously been going on for some time now – it says ‘some weeks’. they’ve been asked to move along by the vicar and a police officer and seemingly they’ve refused. student 3: the vicar is obviously upset about the various goings on. chair: but it doesn’t suggest that he’s more or less upset about any particular aspect does it? student 4: the e-mail sent to parish council: it says some offensive things – particularly in the context of a vicar. also there’s a suggestion that he had made false allegations to get the police to arrest them. student 1: what about his right to express his own religious views? we did that problem last term where we discussed the freedom of expression under article 10 of the european convention on human rights. you remember the ‘don’t tell me what i can say’ case. student 2: yes that’s right, that included legitimate protest didn’t it? scribe: but what about the individual harassment? i seem to recall that there is legislation to protect people from stalkers – i read about it in the papers in relation to that actress. you can get a court order to stop people from harassing you. student 1: yeah – i remember that – there is definitely some legislation which prevents you from individually harassing people and wasn’t that order called an injunction? student 2: what about the vicar’s right to privacy? isn’t he entitled to lead his life in peace without demonstrators standing outside his church? also can an e-mail be defamatory? student 4: but that doesn’t concern the police does it? chair: no, but we should note both of those down in case we need to look at it later. we can always ignore it or defer looking at it once we have our learning outcomes. 13 stage 5 summarise and name the problem aims • to define the tasks ahead and further engage the whole group. • to stimulate intrinsic interest and curiosity. • to encourage people to think deeply rather than just memorise. • to broaden the horizons of the discussion. • to provide an initial framework and starting point for the rest of the discussion • to give the problem a name so that it can be recalled later when other, related or similar legal principles are being discussed • to provide a natural break from the rigours of the process ideally this should be a fast-moving and involved analysis where the group contributes their views and thoughts to problems under discussion. this links back to the key information gathered at stages 2 and 3. how do the facts and the various interests relate to one another? what exactly lies at the root of the problem? sometimes the problem is clear right from the start – has x committed a criminal offence? has a contract been formed? if this is the case the group may come up with a summary and name quite quickly and will move to the next stage without further consideration. in many problems however the relationships between different elements of the problem may not be clear. certain facts may raise questions rather than clarify matters. sometimes the problem needs to be considered from different angles. the students may need to categorise the information and set it out diagrammatically. looking at the parties involved, the relationships between them and the key issues which link them, can often prove to be a good starting point. 14 once the basic issues have been identified, it is important to try to ‘encapsulate’ the focus of the problem in a memorable sentence or phrase. this helps direct the relevance of the problem analysis. as time goes by, these summaries will become increasingly “legalised”, but at the initial stages they may not necessarily be. this step is important, nonetheless, as slfs need to get into the habit of forming a preliminary idea of what the problem is about before they start doing a detailed analysis. chair: now, let’s try and summarise this. what is at the heart of this problem? student 1: well it seems to me to be whether what the client did was criminal or whether he has a right to express his views scribe: but there seems to be at least two issues here – there is the individual ‘harassment’ of the vicar by the client as evidenced by the e-mail and the shouting match and then there is the issue of the group as a whole and their ‘protest’ outside the church student 3: don’t forget though that there is the issue of the client’s right to express his religious views chair: how shall we summarise this? student 1: how about ‘bully or righteous indignation’? student 2: or what about ‘public disorder and the right to protest – the case of the bullied vicar’ – or just ‘the bullied vicar’ – we might remember that! chair: yes, i like that one but let’s have a question mark at the end as is it really bullying? scribe: shall i write that down then? all: yes, thanks! stage 6 – arrange ideas in a systematic way and consider them in-depth aims • streamline and organise the list of issues. • actively process and restructure issues. • form and test links between facts and law. • encourage deeper thinking by analysing and synthesising information. • define the limits of knowledge • prepare to define learning outcomes • identify basic research resources 15 stage 4 should have resulted in many different ideas which relate to the general interests identified at stage 2. these will, however be relatively unstructured, although the process of capturing them on a board may have identified tentative links. the key now is to scrutinise these ideas in greater depth and try to sort out the ideas into some sort of systematic order and coherent constituent parts. some things may be discounted as irrelevant or not related to the main problem. some concepts will need to be linked and priorities identified. the process should end with a schematic representation of the problem and ‘legal considerations’. this starts to define learning outcomes but writing them down too soon should be resisted as they could be misleading or too general. the slf members may, by now, have a lot of potential themes for study but, especially during the early stages of year 1, may not be clear about which are relevant or have priority in terms of importance to, or overall place in, their learning. they should be cautious not to rush on to define (often unmanageably large) chunks of learning. if they have a list of more than 6 or 7 key themes tutors will probably need to narrow down the issues to make subsequent work manageable. students are told they should look to their pbl guide and at any module guide for help in narrowing down their list. these will give pointers as to what is being studied that week. it is important, however, that they do this at the relevant stage of the overall pbl process (that is, the relevant cycle in terms of where it sits in the curriculum timetable) as it is the process of generating ideas, links between those ideas and the plenary sessions which provide students with the initial platform for group and self16 directed learning. chair: right – let’s try to make sense of all this. student 1: there seem to be two main themes related to whether harassment is a criminal offence. student 4: one seems to be connected to group activities and public disorder and the second to individual harassment. chair: ok….let’s group and link the various relevant facts to each of those issues. student 2: we should probably also note the likely existence of criminal statutes in relation to both – we need to find out what they are because they will define the elements of the offence – which in turn links to the facts student 3: i think there is a third issue which seems to be related to the right to free religious expression. where does that come from? scribe: isn’t it in the echr – article 9 or 10 i think or is it the human rights act now? student 2: we should put the relevant article or section down and i think from what we did in an earlier pbl problem, or was it the plenary on human rights, that there were a few important cases on that too? chair: i wonder whether we can link these three themes? student 3: the underlying question seems to be: ‘when does your right to freedom of religious expression turn into actions which might be deemed to be criminal?’ chair: yes, there do seem to be two competing interests here – on the one hand why should the vicar have to put up with personal attacks on his integrity and on the other why shouldn’t our client have the right to say what he believes to be right and protest against what he thinks to be wrong? student 1: i wonder also whether there might be any difference between the two different types of harassment? student 2: yes, there seems to be a real difference between the two situations but together they form a pattern of behaviour – perhaps the same facts can lead to two different offences? once that has been done it is possible to move on to identify (where relevant) basic primary resources. this should help students to refine the issues further and provide a clear platform upon which to construct precise and specific learning outcomes. chair: we should try to identify any relevant statutes and key cases we should be looking at. student 1: i looked in the back of smith and hogan under ‘harassment’ and it seems as if there is the protection against harassment act 1997 which seems to be on the point. student 4: i’ll look that up on westlaw. chair: we should also start with halsbury’s laws. what about the public order issue? student 2: we talked about some elements of the public order act 1986 in the plenary last week, i wonder if it covers harassment? student 3: let’s also look that up in halsbury’s. scribe: there seem to be a number of possibilities to do with ‘threatening or abusive behaviour’ as well as intentional harassment. these are all in sections 4 to 6. student 1: let’s link the public order act section 4-6 and the harassment act with the relevant issues. we’ll also need to consider the various cases listed. student 4: we also need to look at article 10 of the echr again. 17 chair: let’s check on westlaw on the actual wording and leading cases. could you (the scribe) capture those different issues please? for reasons of brevity, the full content and subsequent manipulation of what was recorded in the brainstorming session (stage 4) is not included here. this process is however important as the grouping of ideas and concepts leads directly to the identification of learning outcomes. on the smartboard this is done by dragging and dropping content into groups and themes. it is a vivid demonstration of through processes at work. if less sophisticated technology is used a similar, if less striking, impression can be gained, perhaps using colour coding to link the identified ideas. stage 7define learning outcomes aims • define the way ahead in terms of knowledge and understanding required. • define appropriate resources for self-directed learning. • produce a list of learning outcomes, mostly in the form of questions that will have to be answered. the slf should now agree on a set of focused and clear (smart)7 learning outcomes. this stage uses the expertise of the entire slf to discuss appropriate and attainable learning outcomes and concludes the initial discussion. the yls pbl guide 7 the smart concept – objectives or outcomes that are variously described as: specific, measurable, achievable, relevant and time-bound/timely was first discussed in a management context. the earliest mention appears to be by doran in: doran g.t., there's a s.m.a.r.t. way to write management's goals and objectives, management review, 70 (11), 1981 , 35–36. the value of smart learning outcomes in legal education is, it is suggested, just as relevant and something yls students are encouraged to consider and adopt. 18 recommends that the learning outcomes should, where possible, be in the form of specific questions that address the problems or issues identified in earlier stages and address the gaps that students have identified in their knowledge. the outcomes produced can be divided into three categories, primary, secondary and deferred to assist structuring and prioritising learning. primary outcomes are those which every member of the group should study. they are of direct importance to the issues raised by the case and support the objectives laid out in the course study guide. secondary outcomes are issues of lesser importance to the case and that week’s objectives (in terms of expected curriculum outcomes) but that may hold interest for some students. these can be researched by those in the group who wish to pursue them. deferred outcomes are important issues that will be addressed later in the course and thus can be deferred until later. student 1: well we need to know whether our client has committed a criminal offence. i think we should look at ‘harassment as a public order offence’ student 4: i don’t think that’s specific enough. chair: we need to consider the offences we’ve just looked up in more detail and what we want to know about them. student 2: so the outcome should be to describe and understand the offences of harassment in the protection against harassment act 1997 and the public order act 1986. student 3: that sounds like two learning outcomes to me. student 4: also the public order act doesn’t necessarily mention harassment as an offence so we need to look a little bit more broadly at that. chair: we mustn’t forget the article 10 issue – freedom of expression. student 2: and the critical overlaps between all of these issues. scribe: so we have three main learning outcomes. student 1: there seems to be a lot of case law in relation to these statutes so we will need to consider the principles the courts have adopted when interpreting these provisions student 3: so that’s a fourth primary learning outcome. chair: i think that there is a more general and interesting question about the way society seeks to 19 balance fundamental rights such as the right of religious expression as against the protection of the individual – i mean what does this problem say about life and law in the 21st century? student 2: that also raises the question of privacy and defamation which everyone seems to be ignoring. student 3: let’s look at the block learning outcomes in the study guide again – none of these seem to map onto to privacy or defamation. chair: i think we may well cover that in a later problem so let’s defer that as a learning outcome. all: ok. potential learning outcomes from the problem let us look at the learning outcomes that the slf may have come up with. as seen above students are encouraged to express the outcomes they have identified in the form of research questions. these may be set out as follows: primary 1. what are the elements of the offence of harassment under the protection against harassment act 1997? 2. are any offences likely to have been committed under the public order act 1986 and if so what are the constituent elements? 3. how is the right of freedom of expression under article 10 of the echr and/or the human rights act 1988 relevant to these offences? 4. how have the courts interpreted these offences and what principles have they adopted when applying the law to specific facts? 5. what issues are raised when trying to balance the competing rights of individuals to freedom of religious expression and the need to protect others from harassment? secondary 1. how does the criminal law and civil law overlap in cases of harassment? 2. what sanctions may apply in the event of a conviction for public order or harassment offences? 3. what remedies may be available under the civil law for defamation or 20 harassment? deferred 1. what are the constituent elements of the law on defamation and the protection of privacy? 2. how does the law on privacy and defamation protect an individual’s reputation? 3. how does the law on privacy and defamation overlap with freedom of expression? students are given the following guidance on defining their learning outcomes: producing learning outcomes a common problem is the setting of outcomes that are unclear or too broad to be realistically covered. writing an outcome as say, ‘offence of harassment’, or ‘liability for defamation’, is a waste of the preceding discussion and will present great difficulties when you set about tackling it. when setting the outcomes try to make them focussed, not on broad areas of study, possible to achieve in the time available and clearly phrased. it is good practice to focus learning by phrasing the outcomes as questions. this gives direction and aids the attainment of a deeper level of understanding during private study. the other advantage of phrasing the outcomes as questions is that you should know you have accomplished the task when you have found a relevant answer! do not be afraid to leave some objectives to be formulated on the midweek interim session for feeding back at the final session of the pbl cycle. this is a good way to avoid work overload. (emphasis in bold added) it is also vitally important that each member of the slf understands what is required of them at this stage before embarking on their self-directed study otherwise focus will be lost. stage 8 – planning and conducting the research – using different resources in selfdirected study to meet learning outcomes aims • to develop students’ ability to research, pursue their individual learning needs and provides material for pooling, discussion and critique at following sessions (interim and end of cycle report back). 21 • to promote private study – an essential complement to the pbl group sessions. where the first pbl meeting serves to activate and explore prior knowledge, private study provides the real opportunity to enhance the depth and breadth of your knowledge. • to gain familiarity with a broad range of research resources including primary sources such as statutes and cases; and other secondary sources such as text books, practitioner texts, journal articles and official publications as has been previously implied a particular strength of pbl is its capacity to integrate and encourage the actual application of learning. to make the most of pbl students must acquire knowledge in parallel with skills and values. self-directed learning combined with the pbl sessions should help students to build up their own repertoire of competence. at stage 8, students come to the end of the initial pbl session for that problem and begin their private study for the week. students are encouraged to use a range of resources to meet the learning outcomes set in stage 7. the module guides list recommended reading for the week, and the electronic support system (the virtual learning environment vle) will often have pointers to additional resources. although the problems used in pbl sessions usually cross legal subject boundaries the support students receive in module guides is directed at each of the foundation (or optional) subjects. the students therefore consider problems in the ‘messy’ world of a replicated reality but then have to bring their attention and research back to the fundamental concepts enshrined in subject-specific material. at york plenary sessions are also an important additional resource. as indicated 22 above they do not purport to give ‘answers’ but are structured in such a way as to promote further collaboration and draw attention to relevant considerations and resources. these are delivered in relation to the defined modules of the syllabus. one of the critical points to understand is that there are no ‘right’ or ‘wrong’ resources; students should use whatever they personally find useful. thus the module and pbl guides and vle provide suggestions. that said over-reliance on internet sources is discouraged unless that source is, in fact, authoritative. it is important however that students keep a note of all resources used as they will need to be able to reference the material used when feeding back at stage 9. notes should be made and adequate active learning conducted to be able students to feedback their findings to the rest of the slf. stages 9 and 10sharing the results of self-directed study with the rest of the firm and checking to see if learning outcomes have been met aims • to consolidate knowledge by putting it into words and discussing it. • to assist each other in understanding difficult concepts: a student who has come to understand a difficult concept is often the best person to help a peer who is struggling with it. • to elaborate and enhance each student’s pool of knowledge. sharing different answers to the same questions elaborates upon the learning of individual students and produces a sum that is greater than its component parts. • to critique and correct any misconceptions. pooling information provides opportunity for students and the academic/pbl teaching fellow to correct each other, resolve conflicts raised by the literature found and add new 23 learning. • to define new questions and the limits of existing knowledge through critical reflection on the answers the group has found. • to train students in the discipline of citing and criticising resources. students should start to be able to judge the credibility and weight of information by its source, critically appraise strength of evidence and learn ‘triangulation’ of information by cross checking different sources. after conducting private study on the learning outcomes, students reconvene for interim and end of cycle feedback sessions and to pool and synthesise the information they have gathered. each student is expected to come prepared to talk through and share the work done on each of the set learning outcomes. the key to this session is to emphasise understanding over repetition of unanalysed notes. the aim of pooling information from private study is to help each other grapple with concepts, to expand on each individual’s knowledge base and to identify areas where confusion or uncertainty still exists. it is possible that during the discussion not all issues will be resolved and new ones may appear. these are dealt with in the same way as for the first session, by identifying fresh learning outcomes. these are then studied privately for the remainder of the week and the results brought back and shared with the group at the following pbl session before the new problems are seen. again tutor guidance is given on how to manage and extract the maximum benefit from feedback. the degree of involvement from the pbl tutor at this stage depends on the extent to which the slf has ‘answered’ the question posed by the learning 24 outcome questions determined earlier in the process. it will be recalled that the learning outcomes are, in this guided discovery model of pbl, broadly predetermined, with each tutor ensuring that their slf covers the ground required. the feedback session is there to allow the students to demonstrate to themselves, their colleagues and the relevant tutor that they have addressed the substantive and/or normative issues raised by the set problem. depending on the framing of the learning outcomes this tends to take the form of problem-addressing rather than problem-solving as such – although the latter is a key feature of the live-client clinic elective. in practice, given that the students have already received interim feedback, tutor intervention at this stage is relatively light-touch. running a recap and feedback session is primarily a matter for each individual slf. there are many different approaches that can be taken and each firm and its members may need to experiment to find a method that works best for them. they could go round the group asking individuals to lead the discussion on a particular outcome and the rest of the group can then be invited to follow. the slf may feel it appropriate for an individual or a sub-group to ‘major’ in a particular outcome and make a short presentation on it again with group discussion following. this may be a useful way to practice presentation skills and also can be helpful in controlling time for each outcome. where the outcomes of the week are heavily detailed and related to substantive topics, the slf could use games or cards with key words or concepts written on them for definition purposes or to test each other. equally the group could use other imaginative ways of making the feedback 25 interactive, engaging and challenging. it may pay to experiment with different methods. students can be encouraged to talk to other slf members about how they are ‘feeding back’ and to consider different methods according to the topics and findings that have been identified. for example they may find that they require a different way of describing detailed substantive law learning outcomes to more discursive topics outcomes. it can be very useful if students feel able to share how their group conducts feedback sessions by using social networking sites (e.g. facebook) or by using a thread on the pbl electronic virtual learning environment site. so there it is – pbl at yls in a nutshell. much could be said here about the ‘why’ as well as the ‘how’ but space does not currently permit. the publications referred to in a previous footnote may assist those wanting to know more. if you are still curious, come and see for yourself. feedback from students, tutors, external examiners and visitors is generally highly positive. the pbl process and the ethos of the law school certainly seems to create a very different dynamic in terms of learning and teaching – one built on a shared vision of how legal education can be delivered and on a shared responsibility for doing that. 26 special issue: adrian evans festschrift festschrift comments adrian evans, emeritus professor, monash university, australia there is an unfair stereotype comparing medical students and law students. medical students commence as healers and often wind up as determined capitalists, while law students begin with dreams of successful commercial careers, and wind up as…? our job as justice educators is to encourage the humanity and compassion of future lawyers and particularly in such a way that they make the jump in connecting those qualities to the idea of justice. and in an intensive, live-client, poverty law clinic we have the best possible methodology to achieve that leap. sometimes students ‘get it’ instantly, but most take some months and i think, benefit most when as teachers and practitioners, we articulate early on to each student the requirements of the individual case against the justice architecture. when this process works well, their flourishing also impacts strongly on their clients’ sense of hope. watching students connect these dots has given me the most joy, even when the medium was tragic. i recall a student at monash’s clinic at springvale legal service in melbourne who related, in a distressed manner, the story of a client they had just interviewed in the waiting room, a young mother with small children around her feet. she said she had nothing to feed them because her partner had been sucked into the addiction machine of the infamous crown casino, and lost their savings. our student asked the question: ‘why was (and is) our state government so willing to see such pain inflicted by the casino, for the sake of its tax revenue and its budget?’ that led to a long discussion about the classic ethical dichotomy of governments the end-justifies-the-means versus ‘do no harm’ and later on, enough contextual confidence for the student to go back to our client and talk about how to support her financially and in her relationship. and then that student became part of a community development team at springvale, which examined and advocated around the casino’s political manoeuvre supporting so-called self-exclusion orders for addicted gamblers. many clinicians have similar experiences. their stories, in this journal and others, encourage us and perhaps sustain us. doing clinic – ideally with clinician friends who are also looking for justice connections in each student and in each client’s case is exciting and nourishing, and it can make a profound difference to human beings in need, as well as graduating the sort of lawyers who can powerfully support the social imperative for justice. clinical legal education is comparatively costly if it is effective, but its’ position within justice education makes that expense worthwhile many times over. both clients and future lawyers can develop a practical understanding of and respect for the rule of law in an age when many can see the concept as old and tired, or just plain irrelevant. with both our climate and global inhumanity now taking over as dominant moral (if not survival) agendas, i see clinics and a renewed emphasis on ethical fluency to be the major upcoming challenges for the legal profession. and i plan to be active in both. encouraging university leaders and education regulators to see the win-win in clinical and justice education and resource our law schools accordingly, is my recipe for at least some human happiness and justice. 73 practice report law students’ clinic experience: is it all hype in relation to performance on black-letter law exams? patrick koroma and nicola antoniou⃰ university of east london, uk. abstract does legal clinic experience really have a positive contribution to students’ performance on black-letter law examinations? this is the question we set out to answer by reference to data we collected from current law students at the university of east london (uel). the sample is small and our findings are limited. however, we hope the results inform fellow legal education clinicians of the perceived and real benefits that law clinic students derive from their legal clinic experience and provide a basis for further research on this subject, such as the correlation between clinical legal education and black-letter law. it is important, now more than ever, that universities adapt to ensure that they are fit for purpose in equipping students with the skills they need for the workplace as well as sound theory and in-depth substantive contents of their subjects of study. introduction this article contributes to the wider discussion of the role of law clinics in legal education. it is based on a small and time-constrained study conducted in june – july 2016. the study looked at law students’ attitudes towards extracurricular activities, especially pro bono law clinic[footnoteref:1] experience. the study sought to ascertain whether such experience enhances or hinders students’ performance on black-letter law examinations. we use the term black-letter law here to refer to doctrinal law or legal rules and principles which are often found in statutes and cases, and are taught to students pursuing a law degree or law related course. the term also refers to the “letter of the law”, the commonly accepted technical rules of law or law as it is and not what it should be in context.[footnoteref:2] [1: ⃰ at the time of writing this paper, both patrick koroma and nicola antoniou were senior lecturers at the university of east london and are director and co-director, respectively, of their school’s law clinic. law clinic is used here as a synonym for clinical legal education as well as to refer to the place where students undertake clinical legal education activities. clinical legal education has been defined as “a learning environment where students identify, research and apply knowledge in a setting which replicates, at least in part, the world where it is practised...it almost inevitably means that the student takes on some aspect of a case and conducts this as it would...be conducted in the real world.” grimes, r. (1996), the theory and practice of clinical legal education, in webb, j. and maugham, c. (eds.) teaching lawyers’ skills, london: butterworths (p. 138) cited by lewis, r. (2000) clinical legal education revisited, dokkyo international review, volume 13, pp. 149 -169. ] [2: pope, d. and hill, d. (2015), mooting and advocacy skills, 3rd ed., london, sweet & maxwell, p.20; see also kennedy, d. (1994), politicizing the classroom, review of law and women’s studies, vol. 4, 81-88 at pp81-82.] legal services provided for the public good or on a pro bono basis typically advance citizens’ rights and promote access to justice. often, those who seek such services have nowhere else to turn for help. pro bono university law clinics therefore provide invaluable services to their communities. and as the law clinic experience forms part of students’ legal education experience, a powerful case has been made about the role of legal education in promoting access to justice: "…law schools should more actively promote access to justice through research, teaching, and pro bono programs. legal education plays an important role in socializing the next generation of lawyers, judges, scholars, and public policy makers to care about this issue and to carry on where current efforts fall short… as gatekeepers to the profession, legal educators have a unique opportunity and obligation to continue conveying these messages."[footnoteref:3] it should however be noted that “[t]he primary obligation to provide legal services to the poor resides with the government, and to a lesser extent, with the legal profession, not with law schools. nevertheless, law schools do have some obligation to contribute to the solution of the crisis in access to justice, and it seems obvious that the obligation is best accomplished by law school clinics assisting low-income individuals and communities that are underserved or have particular difficulty obtaining lawyers because of the nature of their legal problems.”[footnoteref:4] [3: rhode, deborah l. (2004), access to justice: again, still, fordham law review, vol 73, issue 3, article 12, 1013-1029 at p1028 & p1029.] [4: wizner, s. and aiken, j. h. (2004), teaching and doing: the role of law school clinics in enhancing access to justice, fordham law review, vol 73, 997-1011 at p997.] from a pedagogical perspective, pro bono law clinic experience provides ‘…opportunities for connecting the “aspirations of law students with professional ideals (justice, service, fairness) and the goals of a university-based education”’.[footnoteref:5] law clinics are in essence a vehicle through which students learn by working in the role of a lawyer to provide legal advice, legal writing or drafting, advocacy or representation to clients in a live or simulation setting. amongst other reasons, this experience is about the students’ formation of a professional identity as a lawyer”, enabling them to think like a lawyer and reflect on their practice to identify gaps in their knowledge of the law and other areas (e.g. skills, ethics, etc.) to be developed.[footnoteref:6] for others, like the former president of the american bar association, robert maccrate and chief justice warren burger of the united states supreme court[footnoteref:7], addressing the skills gap should first start with fundamental reform of legal education in law schools in order to produce people-oriented and problem-oriented counsellors and advocates.[footnoteref:8] [5: nicolson, d. (2016), problematizing competence in clinical legal education: what do we mean by competence and how do we assess non-skill competencies? special issue: problematising assessment in clinical legal education, journal of international clinical legal education, vol. 23, no. 1, p2. ] [6: thomson, d. i. c. (2015), defining experiential legal education, journal of experiential learning: vol. 1: issue 1, article 3, pp7, 9, & 20. see also kerrigan, k. and murray, v. (eds.)(2011), a student guide to clinical legal education and pro bono.hampshire, uk: palgrave macmillan who defined clinical legal education at page 13 as “…essentially a method of learning as opposed to a subject or discipline in its own right.” ] [7: both writing in the 1950s and 1960-70s respectively. ] [8: phant, pamela n. (2005), clinical legal education in china: in pursuit of a culture of law and a mission of social justice, yale human rights and development law journal, vol. 8, 117 – 152 at p128 fn 58..] involvement in university-based law clinic experiential learning[footnoteref:9] programmes offers students the opportunity to reflect on their experience and increase their awareness of skills, knowledge and become more engaged.[footnoteref:10] they consider their supervisor’s feedback in the process and self-evaluate their learning. they ascribe value to their learning by describing what was learnt, how it was learnt and how it could be learnt better next time. students’ situated learning is evident through their participation in such pro bono clinical legal services.[footnoteref:11] situated learning involves “participation as a way of learning – of both absorbing and being absorbed in – the ‘culture of practice’”.[footnoteref:12] it provides an authentic experience and prepares students to apply what they have learned in the real world of working practice.[footnoteref:13] [9: we adopt the well-known definition of david kolb of experiential learning being “…the process whereby knowledge is created through the transformation of experience”. kolb, d.a. (1984), experiential learning: experience as the source of learning and development. upper saddle river, nj: prentice-hall, p 38.] [10: hall, e. (2015), locating clinic and ourselves within it. international journal of clinical legal education, vol. 22 no. 2, pp.142-146, p142.] [11: lave, j. and wenger, e. (1991), situated learning, legitimate peripheral participation, new york: cambridge university press,p.14.] [12: ibid...p. 95.] [13: hung, d. (2002), situated cognition and problem-based learning: implications for learning and instruction with technology, journal of interactive learning research, volume 13 (4), 393-414. see also contu, a. and willmott, h. (2003), re-embedded situatedness: the importance of power relations in learning theory, organization science, volume 14, 283-296; lunce, l. m. (2006), simulations: bringing the benefits of situated learning to the traditional classroom, journal of applied educational technology, volume 3, 37-45; utley, b. l. (2006), effects of situated learning on knowledge gain of instructional strategies by students in a graduate level course, teacher education and special education, volume 29, 69-82; kimble, c. hildreth, p. and bourdon, i. (2008), communities of practice: creating learning environments for educators, (vol. 2)‬, united states: information age publishing; gardiner, l. r., corbitt, g. and adams, s. j. (2010), program assessment: getting to a practical how-to model, journal of education for business, vol. 85, 139-144.] contextual rationale for this study going through the experience as described above often enables students and supervisors to claim to have seen improvements in law clinic students’ skills such as client interviewing, practical legal research or letter writing. in short, both students and supervisors see clinics as a place to acquire, develop and enhance skills for the workplace. however, one area which appears to have been understudied is the impact of law clinic experience on students’ performance on black-letter law examination. an essential component of any clinical legal education project is to have “learning at its heart”[footnoteref:14]. clinical legal education therefore can be distinguished from clinical experience, as the former will depend on students’ learning as opposed to just delivering services. however, it is our view that all clinical experience, whether confined to a legal education project or whether a student undertakes other legal extracurricular activities, will help with the development of practical skills and confidence within a legal setting. in addition, our central viewpoint is that this hands-on experience should also improve students’ results in traditional black-letter law assessments. the premise for this is based on our contention that the skills and experience gained in clinics invariably broaden the students’ cognitive ability and awareness of the application of the law in a practical setting, which are essential to doing well in black-letter law examinations. [14: kerrigan, k. and murray, v. (eds.) (2011), a student guide to clinical legal education and pro bono, hampshire: palgrave macmillan, p.7. ] black-letter law examinations, to put simply, are assessments of doctrinal or substantive law. the black-letter law examinations often come in timed-constrained settings, where students must answer several questions on the topics of study e.g. contract law, land law, criminal law, etc. students may have a mixture of problem-type questions and essay-type questions where they are to discuss, analyse or apply the black-letter law. so if clinical experience within a clinical legal education project focuses on the practical elements of the law, how will this assist students with this type of examination, and to what extent? it is our view that by putting the law into a real world context, taking into account the commercial, ethical and social contexts in which practitioners operate, this can also develop the necessary skills for students to do well in black-letter law exams. this is primarily because some skills sets acquired in clinical work are directly relevant to performance in black-letter law examinations. according to kerrigan and murray, these skills sets include knowledge acquisition skills, problem-solving, written skills, research skills, etc. the clinical experience provides students with the opportunity to learn about the legal systems and its legal concepts, values and rules. in doing so, kerrigan and murray argue that the students use the clinic experience as “an ideal vehicle for developing in-depth, contextualised knowledge because [the students] tend to work on a specific area of law on behalf of a client and need to understand the area in great detail in order to be able to advise or otherwise advance the client’s cause.”[footnoteref:15] this experience in turn enriches the students’ knowledge of the law to be able to perform well in black-letter law examinations. [15: kerrigan, k. and murray, v. (eds.)(2011), a student guide to clinical legal education and pro bono, hampshire, uk: palgrave macmillan, p13.] furthermore, it has been suggested that whilst undertaking either live or simulated clients’ work, students develop problem-solving skills by application of the law to either a real or hypothetical case study. these are the precise skills that are needed for the traditional modes of black-letter law assessments. it may be that some aspects of the clinic work and advice students provide may relate to procedural matters, however, students still need knowledge of the substantive law. another key skill that is built upon through clinical work is the ability to analyse cases, the law and various resources to determine whether there is merit in a client’s case. sometimes, through research, wider policy issues will arise, and added complications of how the law applies in context may engage the students. these added contextual complexities could also assist students in developing a critical awareness and ability to analyse the law. these skills are relevant in traditional law assessments as well as in legal practice. legal drafting and the ability to clearly present complex arguments in simple english language is another skill that is mastered through experience in a law clinic or extracurricular activities. similarly, in any black-letter law assessment, the examiner will check whether the student has presented their answers in a coherent, well written and structured manner. as a law student, research and the use of legal databases are essential to exploring the black-letter law. research and computer skills that students develop during their time at a law clinic or through other extracurricular activities will serve as valuable skills to help their preparation for black-letter law examinations as well as exploring the issues in a client’s case.[footnoteref:16] so the historic criticism that heralded changes in traditional legal education methodology and that regarded the apprenticeship system[footnoteref:17] of law practice (which can arguably include the clinical legal education experience) as lacking legal theory and inherently inconsistent is debunked and largely unfounded. [16: see generally kerrigan, k. and murray, v. (eds.)(2011), a student guide to clinical legal education and pro bono, hampshire, uk: palgrave macmillan, pp13-15] [17: sonsteng, john o.; ward, donna; bruce, colleen; and petersen, michael (2007), a legal education renaissance: a practical approach for the twenty-first century, william mitchell law review: vol. 34: issue 1, article 7, 303-472 at p319.] our experience at uel is that students do obtain pedagogical benefits from volunteering in our law clinic. like in uel and elsewhere, there is abundant evidence that the benefits of clinical legal education experience are regarded as largely relating to employability skills and less about enhancing knowledge of and performance in black-letter law assessments. perhaps this explains why this remains one area which appears to have been understudied vis-a-vis the impact of law clinic experience on students’ performance on black-letter law examinations and hence our reasons for undertaking this small-scale study in one institution: uel. it is not clear therefore whether the benefits of clinical legal education or clinical experience also enhance students’ performance on black-letter law examinations. so our study sought to discover whether there is a correlation between students’ engagement in law clinic/extracurricular activities and students’ performance on black-letter law examinations. methodology our research design is exploratory and explanatory in nature. we devised and administered a questionnaire with 10 questions[footnoteref:18] to gauge individual students’ experience of undertaking legal work experience and/or extracurricular activities. the questions were also designed to ascertain whether students regarded such experience as helpful to passing their substantive law examinations. we employed a simple random sample approach in this study. our primary sampling unit was the royal docks school of business and law and our law students were the secondary sampling units. we chose this sampling approach as it is a basic type of sampling selection and straightforward considering the timeframe available to conduct the study.[footnoteref:19] after securing approval from our school’s research ethics committee, we opened an invitation to all law students in levels 4, 5, and 6 to participate in the study. [18: you will find the questionnaire questions embedded in the charts we provide below.] [19: bachman, r. d. and schutt, r. k. (2007) the practice of research in criminology and criminal justice, 3rd ed., los angeles, sage publications, inc.; black, t.r. (2005) doing qualitative research in the social sciences, an integrated approach to research design, measurement and statistics, london: sage publications; de vaus, d.a. (1996) surveys in social research, 4th ed., london: ucl press; maxfield, m.g. and babbie, e. (2005) research methods for criminal justice and criminology, 4th ed., united states: thomson, wadsworth; sapsford, r. (2007) survey research, 2nd ed., london: sage publications; sarantakos, s. (1998) social research, 2nd ed., london: macmillan press ltd; bourque, l.b. and fielder, e.p. (2003) how to conduct self-administered and mail surveys, 2nd ed., volume 3, london: sage publications.] some of the students who participated in this study indicated that they had no prior involvement with the law clinic and/or any other extracurricular activities. all students were polled before they sat their black-letter law examinations. the purpose was to gauge students’ perceptions about the benefits of participating or not participating in law clinic activities. students were asked to voluntarily provide us with the results of their black-letter law examinations. we intended to use this information to identify any correlation between law clinic experience and good/poor performance in black-letter law examination. we considered such correlation as helpful in postulating some generalisations about law clinic experience. we hasten to state that any generalisations of our findings will and should be understood from our narrow and homogenous sample (i.e. uel law students in the school of business and law). in any case, our findings should be helpful to future researchers who may want to look at another single institution or embark on a comparative study involving multiple institutions. that in fact is an opportunity we are prepared to explore with readers of this article who may be interested in such collaboration across multiple institutions. results we had 46 student respondents. whilst this is a relatively small number, it provides an example of whether legal clinical experience can impact students’ performance on substantive law examinations. our study showed that 67% of student respondents had undertaken legal work experience (chart 1), and that the majority of these students (i.e. 79%) found that this was a valuable experience (see chart 2 with values 1 – 5: 1 represents “not at all valuable” and value 5: “extremely valuable”). chart 1 chart 2 we discovered that 85% of the student respondents volunteered at our law clinic (chart 3) and the majority of these students (i.e. 86%) found this experience helpful in their study of substantive law subjects (see chart 4 with values 1 – 5: 1 represents “not at all helpful” and value 5: “extremely helpful”). chart 3 chart 4 it was surprising to learn that 65% of our students did not participate in any type of extracurricular activities within the university (see chart 5). chart 5 of those students who answered ‘yes’ to participating in any other extracurricular activities, three students did not provide a mark of how useful they found this experience. therefore, the results are somewhat limited in this respect. however, of the students who did respond, all indicated that they found this experience helpful, ranging from scale 3 to 5 out of 5 (chart 6), with 77% finding that the experience was either very or extremely helpful in their studies and exam performance. chart 6 overwhelmingly, the majority of our students did not provide us with consent to contact their module leaders to obtain their module results for this academic year. this meant that we were unable to carry out specific module analysis for our students (chart 7). chart 7 all students who participated in the survey agreed that a credit bearing clinical legal education module would be an appropriate step for our university and 100% of students stated that they would choose to do such a module (charts 8 and 9). this was an emphatic result, which indicated that students did see the potential benefits of integrating practical legal skills within the curriculum. chart 8 chart 9 we paid particular attention to level 6 (i.e. final year) students and wanted to know what impact, if any, legal work experience and/or extracurricular activities had on their current law subject assessments. the results indicated that there were only three final year students with legal clinic experience (chart 10 below) and eight other final year students had experience of extracurricular activities (chart 11). the three students with legal clinic experience indicated that their actual or predicted degree classification was 2:1. seven of the eight students with experience of extracurricular activities indicated that their actual or predicted degree classification was 2:1 and the remaining one student was predicted to achieve a first class degree. chart 10 chart 11 there were 22 final year student respondents without any legal clinic or extracurricular activities experience. of these students, one indicated a predicted first class degree; 19 were predicted 2:1 degrees; and two were predicted 2:2 degrees. (chart 12). chart 12 we therefore found that those students who had no experience of legal work and/or extracurricular activities appeared not to have been affected because they were predicted to perform as well as those with experience of legal work and/or extracurricular activities. although, we note that by way of comparison, there were no actual or predicted 2.2 grades for those students who did engage in legal experience and/or extracurricular activities overall, from these results, it appears that having legal experience and/or extracurricular activities does not necessarily enhance grades on black-letter law examinations; however, neither does this extra experience hinder students’ grades. we could only postulate that this unclear finding may be down to the small sample size or responses we received. we also asked our students whether they would provide us with their reasons for performing well or badly (as the case may be) in their predicted or actual final grades. the majority of student respondents (i.e. 63%) attributed their good grades to support from their lecturers, followed by their own commitment and motivation. the reasons for poor performance were attributed to personal circumstances. discussion the results above, although may be limited in terms of their reliability and scope, serve as an example that clinical legal experience or extracurricular activities do not necessarily have a positive contribution to the traditional models of black-letter law assessments. the results seemed to indicate that those who did not take part in any extracurricular activities or legal work experience were just as likely to do well in their substantive law assessments. the traditional black-letter law examinations do not necessarily examine students on their practical legal skills, and so the experience gained during clinical legal work may not be best reflected in those types of black-letter law examinations. this view has been canvassed and debated in the literature on legal education. the concern has been that for a long time, traditional legal education modes of instruction and assessments heavily “…place too much emphasis on theoretical learning and not enough on practical learning…. [so that university graduate] students who could think like a lawyer … were unprepared to be a lawyer. the skills gap is often filled during the period of vocational training and the early years of practice as a trainee solicitor or pupil barrister”. [footnoteref:20] the carnegie report makes the following criticism of this approach of legal education: “[o]ne of the less happy legacies of the inherited academic ideology has been a history of unfortunate misunderstandings and even conflict between defenders of theoretical legal learning and champions of a legal education that includes introduction to the practice of law.”[footnoteref:21] [20: thomson, d.i.c. (2015) defining experiential legal education, journal of experiential learning: vol. 1: issue 1, article 3, p2.] [21: the carnegie report (william m. sullivan et al., (2007) educating lawyers: preparation for the profession of law 8 (2007)) and david segal (2011), what they don’t teach law students: lawyering, n.y. times, nov. 20, at a1 cited by thomson, d.i.c. (2015) defining experiential legal education, journal of experiential learning: vol. 1: issue 1, article 3, p2 at footnote 6 &7,] we share this view and the results from our study confirm our conviction. we may not have seen discernible evidence of the positive contribution of law clinic experience in students’ performance on black-letter law examinations because such examinations do not primarily focus on lawyering skills and values but on doctrinal law.[footnoteref:22] the literature on this point is also telling. it is acknowledged that some achievements have been made by legal education providers to equip students with skills and legal knowledge for life after university. however, “…the legal education system does not provide a significant source of training in nine legal practice skill areas: (1) understanding and conducting litigation; (2) drafting legal documents; (3) oral communications; (4) negotiations; (5) fact gathering; (6) counselling; (7) organizing and managing legal work; (8) instilling others’ confidence in the students; and (9) providing the ability to obtain and keep clients. nor does the legal education system provide training in eight important legal practice management skills areas: (1) project and time management; (2) efficiency, planning, resource allocation, and budgeting; (3) interpersonal communications and staff relations; (4) fee arrangements, pricing, and billing; (5) governance, decision-making, and long-range strategic planning; (6) marketing and client development; (7) capitalization and investment; or (8) human resources, hiring, and support staff.”[footnoteref:23] we argue that until these skills are routinely taught and assessed as part of the mainstream legal education system, there will remain very limited evidence of a clear impact of the benefits of clinical legal education or extracurricular activities on students’ performance on black-letter law assessments. [22: one set of lawyering skills and values as listed and endorsed by the maccrate report 1992 commissioned by the american bar association includes the 10 fundamental lawyering skills: 1) problem solving; 2) legal analysis and reasoning; 3) legal research; 4) factual investigation; 5) communications (in writing, and orally); 6) counselling (a client); 7) negotiation (with opposing counsel); 8) litigation and alternative dispute-resolution procedures; 9) organization and management of legal work; 10) recognizing and resolving ethical dilemmas. the four fundamental values of the profession: 1) provision of competent representation 2) striving to promote justice, fairness, and morality 3) striving to improve the profession 4) professional self-development. see the american bar association section of legal education and admissions to the bar, legal education and professional development – an educational continuum (1992), cited in thomson, d.i.c. (2015) defining experiential legal education, journal of experiential learning: vol. 1: issue 1, article 3, p7.] [23: sonsteng, john o.; ward, donna; bruce, colleen; and petersen, michael (2007), a legal education renaissance: a practical approach for the twenty-first century, william mitchell law review: vol. 34: issue 1, article 7, 303-472 at p318.] a student may enquire what can be gained from the legal practical experience, if it does not necessarily improve students’ grades in black-letter law assessments. should we simply view “engagement with practice in purely vocational or technocratic terms”, or as donald nicolson suggests this is about providing opportunities for connecting the “aspirations of law students with professional ideals (justice, service, fairness)…”?[footnoteref:24] [24: nicolson, d. (2016), problematizing competence in clinical legal education: what do we mean by competence and how do we assess non-skill competencies? special issue: problematising assessment in clinical legal education, journal of international clinical legal education, vol. 23, no. 1, p2. ] our view is that clinical legal education programmes in the curriculum can supplement (not substitute) traditional law instruction and assessment methods. this is because such programmes integrate theory and practice, by providing numerous opportunities for students to learn and apply lawyering skills, just as they are used in legal practice (or similar professional settings).[footnoteref:25] in addition, clinical legal education programmes equip students for future employment with practical skills that are not purposefully taught or assessed in traditional law degree courses. [25: thomson, d.i.c. (2015) defining experiential legal education, journal of experiential learning: vol. 1: issue 1, article 3, p12.] as discussed above, our findings indicate that there was no positive or negative contribution law clinic experience had on performance in traditional black-letter law assessments from among the students who participated in this study. however, we hasten to clarify that we do not in any way doubt the practical benefits and employability skills students derive from the law clinic experience. kevin kerrigan and victoria murray outline a number of professional awareness and legal skills which the law clinic experience offers students: development of broad knowledge of the legal system, its concepts, values, principles and rules; application and problem-solving skills; development of factual and legal research skills; development of intellectual skills such as analysis, synthesis, critical judgement and evaluation; professional autonomy and the ability to plan and undertake tasks independently; communication and team work; and the ability to use, present and evaluate numeracy, and information technology.[footnoteref:26] [26: kerrigan, k. and murray, v. (eds)(2011), a student guide to clinical legal education and pro bono, (hampshire, uk: palgrave macmillan), pp13-15.] robert dinerstein also puts forward nine purposes of clinical legal education: developing modes of planning and analysis for dealing with unstructured situations; providing professional skills instruction; teaching means of learning from experience; instructing students in professional responsibility; exposing students to the demands and methods of acting in role; providing opportunities for collaborative learning; imparting the obligation for service to indigent clients; providing the opportunity for examining the impact of doctrine in real life and providing a laboratory in which students and faculty study particular areas of the law; and critiquing the capacities and limitations of lawyers and the legal system. [footnoteref:27] [27: dinerstein, r. (1992), report of the committee on the future of the in-house clinic, journal of legal education, vol. 42, no. 4, pp. 508-574 at 512-517.] we believe the impact of law clinic experience on students’ performance on black-letter law assessments has not been studied or scrutinised to a sufficient degree. the relationship and the impact these two areas have on each other remained understudied while other aspects of law clinic experience have been subject to examination.[footnoteref:28] we argue that the very nature of the law clinic experience itself does not emphasise black-letter law as a priority in its delivery or assessments. however, where the clinic experience is at undergraduate level, it should be imperative that this experience, at the very least, should have regard to its impacts on students’ ability to learn or performance well on black-letter law examination if they are to be effective advice-givers, excellent legal drafters, etc. knowledge of, and the ability to do well in substantive law examination, should also be given attention within the clinic setting. this is to avoid claims that the clinic experience is largely practice-heavy but light on doctrinal law and legal reasoning. [28: for example, see studies like krieger, s.h. (2008), the effect of clinical education on law student reasoning: an empirical study, william mitchell law review, vol. 35 number 1, pp 359 – 400; nicolson, d. (2016), problematizing competence in clinical legal education: what do we mean by competence and how do we assess non-skill competencies? special issue: problematising assessment in clinical legal education, journal of international clinical legal education, vol. 23, no. 1.] the traditional modes of instruction and assessment in undergraduate legal education do not prioritise the assessment of practical legal skills. this in itself does not mean clinical legal education is inferior or less effective in the training of future lawyers; nor does the teaching and writing on social injustice issues is any inferior. in fact this will be regarded as the “prevailing conceptions of legal education and scholarship than the perceived dumbed-down nature of teaching skills and writing about clinical legal education.”[footnoteref:29] what we do know is that the failure of traditional modes of instruction and assessment in undergraduate legal education to produce work-ready graduates contributed to the emergence and growth of clinical legal education. [29: nicolson, donald (2016) “our roots began in (south) africa”: modelling law clinics to maximize social justice ends, international journal of clinical legal education, vol. 23, no. 3, 87-136 at p135.] both theoretical legal educationists[footnoteref:30] and legal clinicians[footnoteref:31] could borrow something from john dewey who really loathes the labels of ‘traditional’ or ‘old’ education and ‘progressive’ or ‘new’ education.[footnoteref:32] dewey acknowledges that in traditional methods of instructions like in new methods of instructions, experience is gained. so what is really paramount is the quality of the experience. dewey writes: “just as no man lives or dies to himself, so no experience lives and dies to itself. wholly independent of desire or intent every experience lives on in further experiences. hence the central problem of an education based upon experience is to select the kind of present experiences that live fruitfully and creatively in subsequent experiences.”[footnoteref:33] students’ learning experience should be one that equips and prepares them sufficiently enough for the future and to influence their later experiences. the clinic experience like that from studying black-letter law should both contribute to providing students with a rich experience for future use. [30: some of whom have often been labelled as perusing ‘traditional’ or ‘old’ education.] [31: some of whom have often been regarded as pursuing ‘progressive’ or ‘new’ education.] [32: dewey, j. (1938) experience and education, 23, new york, kappa delta pi publications, p10.] [33: dewey, j. (1938) experience and education, 23, new york, kappa delta pi publications, pp27-28.] students at uel do obtain pedagogical benefits from volunteering in our law clinic as they are able to apply their theoretical knowledge of the law when providing services to clients. there is evidence that our law clinic students also benefit from this experience by acquiring and developing legal practice and employability skills. although our study does not establish a definite nexus between law clinic experience and good grades in substantive law assessments, it is still an experience which our law clinic students believe has put them in a better stead for the future. this is evident from the views of our law clinic student advisers, maria samuel and sharanjit pal, as follows: maria: “i began my volunteering experience in the law clinic in my second year of the llb. i can safely say that it was one of the best experiences i had whilst studying. i was able to gain an insight into legal practice. as student advisors we were able to write client letters and interview clients which is a surreal experience for anyone who has not been in a legal environment before. the breadth of knowledge of the lecturers and supervising solicitors was invaluable and has also firmly cemented my future career aspirations of studying the lpc. the law clinic helped me realise my potential and greatly improved my research and analytical skills. it also enhanced my employability skills. it has been lovely working with so many talented people”. sharanjit: “the law clinic has been a very valuable experience for me. i have been lucky enough to provide advice to individuals who need help in resolving their legal problems. from the outset i was made to feel supported in my work and this gave me confidence. i needed to ensure i was able to work to the best of my ability. working at the law clinic under the supervision of practising solicitors has been extremely rewarding, and has provided me with the best possible start to pursue my legal profession. my time at the law clinic has provided me with real legal work experience this is something employers will value highly. i have also been lucky enough to have met lord neuberger through the lectures that the law clinic holds, and that was an experience i’ll never forget. my plans now are to qualify as a solicitor and the law clinic has given me an excellent introduction to what it will be like to work in a legal environment”. conclusion from the results of our study, it appears that clinical legal experience may not, as an independent variable, contribute to the students’ successful performance on black-letter law assessments. for students who participated in clinical legal work, despite the extra time that they spent undertaking law clinic work experience, they did just as well as those students who did not undertake law clinic work / extracurricular work, and who perhaps dedicated more of their time studying. the added advantage that students derive from the clinical legal experience is that they may find themselves in a stronger position when it comes to acquiring employability skills. graduate employers want “…real-life evidence and examples that back up what you say. that means: [1] which skills you’ve used, where you’ve applied them and how effective they were[;][2] what you’ve done that demonstrates your interest and enthusiasm for this area of work – internships, experience, volunteering, extra qualifications…”[footnoteref:34] the 2016 government white paper on transforming higher education in england also highlights this point that “employers report a growing mismatch between the skills they need and the skills that graduates offer….” the white paper also focuses on “the importance of students having access to a wide array of work experience opportunities, employers and [higher education] providers working together on curriculum design, and graduates having the ‘soft skills’ they need to thrive in the work environment.”[footnoteref:35] [34: sharp, g. (2012) what do employers look for in graduates?, which? university, available at http://university.which.co.uk/advice/career-prospects/what-do-employers-look-for-in-graduates (last accessed 01/10/2012).] [35: department for business, innovation and skills (may 2016), success as a knowledge economy: teaching excellence, social mobility and student choice, p42.] we are therefore convinced that clinical legal education approaches and traditional substantive law instructions and assessments are essential in the training of students as future legal professionals or preparing students with employability skills for other walks of life. we are supported in this view by reference to the emerging changes in legal education with the introduction of the teaching excellence framework. the need for students to showcase more than just an understanding of the substantive law, will become the responsibility of law schools if law schools or universities are to remain relevant and viable entities. the uk government expresses a desire “to ensure that our higher education system continues to provide the best possible outcomes [based on] informed choice and competition. we must provide incentives for all institutions to improve and to focus on what matters to students, society and the economy….”[footnoteref:36] the variety of clinical legal education programmes available now will go a long way to meeting these objectives. “the small business and enterprise act 2015 enables the government, for the first time, to link higher education and tax data together to chart the transition of graduates from higher education into the workplace better.”[footnoteref:37] it will be imperative on higher education providers to adequately equip their students to enter the workplace with the maximum skills and experience to compete for well paid jobs. we believe clinical legal education programmes will provide significant assistance to universities in this regards. [36: department for business, innovation and skills (may 2016), success as a knowledge economy: teaching excellence, social mobility and student choice, p43.] [37: department for business, innovation and skills (may 2016), success as a knowledge economy: teaching excellence, social mobility and student choice, p58.] so what does the future hold for traditional black-letter law examinations? it is our view that there should be a blend of both traditional doctrinal and practical skills modes of assessment. as with emerging changes in the teaching excellence framework and the need for students to showcase more than just an understanding of the substantive law, more of the clinical legal education could be embedded in all areas of law. selected bibliography 1. bachman, r. d. and schutt, r. k. (2007) the practice of research in criminology and criminal justice, 3rd ed., los angeles: sage publications, inc. 2. black, t.r. (2005) doing qualitative research in the social sciences, an integrated approach to research design, measurement and statistics. london: sage publications. 3. bourque, l.b. and fielder, e.p. (2003) how to conduct self-administered and mail surveys. 2nd ed., volume 3, london: sage publications. 4. contu, a. and willmott, h. (2003) re-embedded situatedness: the importance of power relations in learning theory, organization science, volume 14, 283-296. 5. department for business, innovation and skills (may 2016), success as a knowledge economy: teaching excellence, social mobility and student choice, 6. dewey, j. (1938) experience and education, 23, new york, kappa delta pi publications 7. de vaus, d.a. (1996) surveys in social research.4th ed., london: ucl press. 8. dinerstein, r. (1992) report of the committee on the future of the in-house clinic, journal of legal education, vol. 42, no. 4, pp. 508-574. 9. gardiner, l. r. corbitt, g. and adams, s. j. (2010) program assessment: getting to a practical how-to model, journal of education for business, volume 85, 139-144. 10. giddings, j. (2010) why no clinic is an island: the merits and challenges of integrating clinical insights across the law curriculum, journal of law and policy, volume 34, 261-289. 11. grimes, r. (1996) “the theory and practice of clinical legal education”, in webb, j. and maugham, c. (eds.) teaching lawyers’ skills, london: butterworths (p. 138) cited by lewis, r. (2000) clinical legal education revisited, dokkyo international review, volume 13,149-169. 12. hall, e. (2015) locating clinic and ourselves within it, international journal of clinical legal education, editorial. 13. hung, d. (2002) situated cognition and problem-based learning: implications for learning and instruction with technology, journal of interactive learning research, volume 13(4), 393-414. 14. kemmis, s. and mctaggart, r. (2000) participatory action research communicative action and the public spher, in n.k. denzin, n.k. and lincoln, y.s. (eds.) the sage handbook of qualitative research. 2nd ed. thousand oaks, california: sage publications. 15. kennedy, d. (1994), politicizing the classroom, review of law and women’s studies, vol. 4, pp81-88. 16. kerrigan, k. and murray, v. (eds.)(2011) a student guide to clinical legal education and pro bono.hampshire, uk: palgrave macmillan. 17. kimble, c. hildreth, p. and bourdon, i. (2008) communities of practice: creating learning environments for educators, (volume 2), united states: information age publishing. 18. kolb, david a. (1984) experiential learning: experience as the source of learning and development. upper saddle river, nj: prentice-hall. 19. lave, j. and wenger, e. (1991) situated learning, legitimate peripheral participation. new york: cambridge university press. 20. lunce, l. m. (2006) simulations: bringing the benefits of situated learning to the traditional classroom, journal of applied educational technology, volume 3, 37-45. 21. maxfield, m.g. and babbie, e. (2005) research methods for criminal justice and criminology. 4th ed., united states: thomson, wadsworth. 22. nicolson, d. (2016) problematizing competence in clinical legal education: what do we mean by competence and how do we assess non-skill competencies? special issue: problematising assessment in clinical legal education, international journal of clinical legal education, vol. 23, no. 1. 23. nicolson, donald (2016) “our roots began in (south) africa”: modelling law clinics to maximize social justice ends, international journal of clinical legal education, vol. 23, no. 3, 87-136. 24. phant, pamela n. (2005) clinical legal education in china: in pursuit of a culture of law and a mission of social justice, yale human rights and development law journal, vol. 8, 117 – 152. 25. pope, d. and hill, d. (2015) mooting and advocacy skills. 3rd ed., london: sweet & maxwell. 26. rhode, d. l. (2004) access to justice: again, still, fordham law review, vol 73, issue 3, article 12, 1013-1029. 27. sapsford, r. (2007) survey research. 2nd ed., london: sage publications. 28. sarantakos, s. (1998) social research. 2nd ed., london: macmillan press ltd. 29. sharp, g. (2012) what do employers look for in graduates? which? university. 30. thomson, d.i.c. (2015) defining experiential legal education, journal of experiential learning: vol. 1: issue 1, article 3. 31. wizner, s. and aiken, j. h. (2004) teaching and doing: the role of law school clinics in enhancing access to justice, fordham law review, vol 73, 997-1011. 15% 85% yes no 3) do you currently participate in the university of east london’s law clinic? 7 39 4) if yes, on a scale of 1 to 5, do you find this experience helpful in your study of your substantive law subjects and exam performance? students 14% 43% 43% 0 0 1 3 3 35% 65% yes no 5) if you answer ‘no’ to the above question, do you currently participate in any other extracurricular activity within university of east london? 16 30 6) if yes, on a scale of 1 to 5, do you find this experience helpful in your study of your law subjects and exam performance (3 respondents answered 'yes' without marking the scale)? students 23% 31% 46% 0 0 3 4 6 30% 70% yes no 7) do you give consent to your module leaders to provide us with your grades for some of the modules you took this year: 2015-2016? 14 32 100% yes no 9) do you consider the introduction of an optional credit bearing clinical legal education module within the law curriculum as an appropriate step uel school of business and law should take? 46 0 100% yes no 10) if uel school of business and law introduced an optional credit bearing clinical legal education module into the law curriculum, would you consider choosing such a module as one of your optional modules? 46 0 level 6 students with legal experience actual or expected degree classification students 1st 2.1 2.2 0 3 0 level 6 students with extracurricular activity actual or expected degree classification students 1st 2.1 2.2 1 7 0 level 6 students without legal experience or extracurricular activity actual or expected degreee classification students 1st 2.1 2.2 1 19 2 33% 67% yes no 1) since you started your law degree, have you undertaken any legal work experience, here at uel or anywhere else? 15 31 2) if yes, on a scale of 1 to 5, how valuable did you find that experience? students 7% 14% 79% 1 0 2 0 11 59 extended reflection: teaching and learning in clinic clinic is the basis for a complete legal education: quality assurance, learning outcomes and the clinical method neil gold1 university of windsor, canada introduction clinic is the basis for a complete legal education.2 the time has come to stop treating clinic as a marginal, alternative approach to learning some but not all things requisite for a sound legal education aimed at producing capable practitioners. it is a powerfully effective, experiential and varied, comprehensive approach to the structure and contents of a legal education. i will argue that given a full interpretation of the term “clinical legal education” (cle), cle in its many forms can serve as the model for a legal education. also, in this paper i will examine the relationship between the learning outcomes we have for a legal education and the learning methods characteristic of a 1 neil gold is professor emeritus in the faculty of law at the university of windsor, canada. 2 there is a discussion of the meaning of the term clinical legal education, as i use it, in section 6. some readers may wish to come back to the beginning after reading the section entitled “what is clinical legal education?”. variety of forms of clinical legal education. at another time it will be useful to show how assessment of learning through clinic suits the full range of outcomes as well. 1. learning outcomes in australia, canada, europe, new zealand, uk, and in many regions of the usa, outcomes oriented programme planning, delivering, assessing and evaluating govern tertiary3 education quality assurance. while no two jurisdictions are the same, those conforming to recognized quality assurance models require institutions to demonstrate that graduates have achieved, or are likely to have achieved, a specified range of learning outcomes organized within an acceptable taxonomy or classification system.4 tertiary 3 in some places, “post-secondary” education. 4 1. quality assurance authority for higher education, uk quality code for higher education, part a: setting and maintaining threshold academic standards; chapter a1: the national level. (december 2011)(see p. 9 ff. for outcomes) http://www.qaa.ac.uk/publications/informationandguidance/pages/quality-code-a1.aspx 2. australian qualification framework council, australian qualifications framework, first edition. (july 2011) (see pp. 11-18 for learning outcomes) http://www.aqf.edu.au/portals/0/documents/handbook/greyscale%20%20aqf_hndbkjul2011_locked_printableversion.pdf 3. council of ministers of education, canada, ministerial statement on quality assurance of degree education in canada. (2007) http://www.cmec.ca/publications/lists/publications/attachments/95/qa-statement-2007.en.pdf 4. campus alberta quality council, handbook: quality assessment and quality assurance, first edition. (february 2009, with revisions to december 2011) (council adopts ministerial statement on qa –above) http://www.caqc.gov.ab.ca/media/1102/handbook_december_2011_revised_2012_04.pdf 5. new zealand qualification authority, the new zealand register of quality assured qualifications. (october 2007) (see pp. 8/11 re need to establish outcomes for programs) http://www.nzqa.govt.nz/assets/studying-in-nz/new-zealand-qualification-framework/theregisterbooklet.pdf 2 http://www.qaa.ac.uk/publications/informationandguidance/pages/quality-code-a1.aspx http://www.aqf.edu.au/portals/0/documents/handbook/greyscale%20-%20aqf_hndbkjul2011_locked_printableversion.pdf http://www.aqf.edu.au/portals/0/documents/handbook/greyscale%20-%20aqf_hndbkjul2011_locked_printableversion.pdf http://www.cmec.ca/publications/lists/publications/attachments/95/qa-statement-2007.en.pdf http://www.caqc.gov.ab.ca/media/1102/handbook_december_2011_revised_2012_04.pdf http://www.nzqa.govt.nz/assets/studying-in-nz/new-zealand-qualification-framework/theregister-booklet.pdf http://www.nzqa.govt.nz/assets/studying-in-nz/new-zealand-qualification-framework/theregister-booklet.pdf systems tend to apply the same schema to all baccalaureate programs, preferring professional programs to add anything that they believe the general set of expectations for university graduates may be lacking. many professions have long recognized outcomes orientations that aim for professional competence. competencies and abilities, profession-agreed learning outcomes, are at the heart of accounting, business, nursing, social work, medical, engineering and many other professional education and accreditation models in numerous jurisdictions. 5 outcomes, or competency-based approaches, to university legal education and the professional preparation of lawyers exist in some places but are less prevalent than in other professions. discussion in much of the recent legal education literature moves or aims to 6. middle states commission on higher education, characteristics of excellence in higher education: requirements of affiliation and standards for accreditation. 2006 (see pp. 40-44 standard 11: educational offerings re need to establish learning outcomes) http://www.msche.org/publications/chx-2011-web.pdf 7. wasc (western association of schools and colleges) accrediting commission for senior colleges and universities, handbook of accreditation (2008 , with revision to commission’s decisions, 2012) (see pp. 14-15 – achieving educational objectives through core functions: teaching and learning discusses use of learning objectives) http://www.wascsenior.org/findit/files/forms/handbook_of_accreditation.pdf 8. lumina foundation, the degree qualifications profile (2011) (see pp. 11-20) http://www.luminafoundation.org/wpcontent/uploads/2011/02/the_degree_qualifications_profile.pdf 5 stuckey, r. and others, best practices for legal education, clea (2007) (stuckey) the full volume is available on line as a pdf at http://law.sc.edu/faculty/stuckey/best_practices/best_practices-cover.pdf 3 http://www.wascsenior.org/findit/files/forms/handbook_of_accreditation.pdf http://www.luminafoundation.org/wp-content/uploads/2011/02/the_degree_qualifications_profile.pdf http://www.luminafoundation.org/wp-content/uploads/2011/02/the_degree_qualifications_profile.pdf http://law.sc.edu/faculty/stuckey/best_practices/best_practices-cover.pdf move legal education closer to the mainstream of professional, competency-based 6 education, generally.7 applying a canadian (ontario) model of learning outcomes, as well as specific legal professional views of desired law learning outcomes, this paper will seek to demonstrate that clinical legal education’s aspirations are traditional and mainstream: properly deployed conventional learning outcomes can be achieved through clinic8. as well, clinic learning outcomes are for the most part coterminous with current learning expectations of professional, legal and tertiary education.9 given its role in facilitating the achievement and assessment of key learning outcomes, clinic’s methods and outcomes play a major role in aiding law schools to demonstrate academic quality to regulators, to establish 6 distinctions are often made between “competency-based” and “outcomes-based” on the theory that a competency is a narrow ability that is a part of an outcome. by using the term “competency-based” i mean to focus on professional abilities, and of course these are outcomes. 7 see stuckey op. cit. there is an interesting discussion on competence-based approaches to professional preparation in the current legal education and training review in england and wales http://letr.org.uk/publications/briefing-and-discussion-papers/ 8 there may be arguments about the feasibility of using clinic as a central, overarching, teaching approach or strategy. some would doubt cle’s financial viability; others would question whether there are sufficient clinicians to carry the curriculum; still others would argue that for many subjects conventional teaching approaches work just fine; and others may claim in cannot meet the demand of learning outcomes and subject matter coverage. no doubt there will be other issues and answers. if cle is given the wide definition i suggest in this paper i believe all of the negative arguments can be met, except perhaps finances, depending on the model employed. innovative approaches may overcome financial challenges: how might senior and post-graduate students contribute to the learning and teaching agenda? to what extent can able and interested practitioners be drawn into effective clinical teaching roles? can online learning, as it has at the university of windsor, supplement experiential learning? see for example the use of online learning to support cle at the university of windsor’s city centre live-client clinic: http://www.uwindsor.ca/law/2014-08-24/online-learning-launched and www.clinicallaw.ca not every learning opportunity will be a live client instance, but it will meet the definition others and i offer for cle at page 13 and elsewhere in this paper. as an example, england’s university of york employs a mix of clinic methodologies. http://www.york.ac.uk/law/current-students/learning-teaching/ january 15, 2015. 9 the council of ministers of education of canada, op. cit. draws heavily on the ontario scheme and has been formally adopted by alberta, see op. cit. 4 http://letr.org.uk/publications/briefing-and-discussion-papers/ http://www.uwindsor.ca/law/2014-08-24/online-learning-launched http://www.clinicallaw.ca/ http://www.york.ac.uk/law/current-students/learning-teaching/ graduate competence to professional bodies, and to assure graduates’ readiness for multiple law and non-law career opportunities. 2. why learning outcomes? the inevitable move towards outcomes oriented higher education in canada has been in process for some time. in some jurisdictions it is still an idea worth considering. in at least two, ontario and alberta, it is the way ahead. it is astonishing, though explicable, that it has taken so long for this approach to win a place in tertiary canadian education.10 quality assurance systems and professional/vocational preparation models insist on an outcomes-based approach for several reasons.11 they seek to accomplish a number of coexisting or sometimes overlapping ends. 12 this paper focuses on the contention that 10 the irony will not go unmissed. most higher education leaders and instructors are not trained or educated as educators. until relatively recently there was little interest in the work of post-secondary education researchers among university practitioners, such as presidents, provosts/deputy vice-chancellors, deans, etc. the accountability movement has thrust higher education in canada into the midst of the research outputs of educationists, chiefly for the better. quality assurance schemes are at various stages of development around the developed world, with canada among the last to subscribe. american regional accreditation schemes were largely input oriented until recently; now outputs, particularly student learning outputs, both intended and realized, have come under scrutiny. 11 the following list of purposes provides examples from both the literature and my own experience of the use of learning outcomes in higher education: to provide students with clear statements of what is expected of them and therefore what they will be tested on. this enhances clarity for those who are uncertain about 1. their abilities and knowledge and provides a more comprehensible set of expectations from arrival at university to graduation; 2. to provide quality assessors with clear, coherent and complete statements of the capabilities of graduates, in terms of the minimum criteria and standards of knowledge, skills and attitudes required for the level of the award (degree, diploma or certificate) offered; 5 clinic, a methodology for the promotion of learning, can serve to support student achievement of all learning outcomes, though some more readily. while there are many reasons for outcomes-oriented education (at least 13) 13 , our discussion is limited to the following: 1. to provide quality assessors with clear, coherent and complete statements of the capabilities of graduates, in terms of the minimum criteria and standards of knowledge, skills and attitudes required for the level of the award (degree, diploma or certificate) offered; 3. to provide those evaluating and reviewing institutional performance with clear statements by which to assure institutional accountability for learning and teaching both internally and externally; 4. to assure stakeholders that programs and institutions meet pertinent standards and that student performance according to the standards will be assessed by suitable means; 5. to provide public information that demonstrates how credentials compare by level and standard to those in other jurisdictions; 6. to support the continuous improvement of practices in higher education both intraand interinstitutionally; 7. to demonstrate the comparability of one jurisdiction’s (and institution’s) credentials to those of other jurisdictions (and institutions); 8. to improve student access to further study (post-graduate and professional) by providing postgraduate and professional institutions with a transparent, discernible and comparable set of degree level outcomes; 9. to clarify to post-graduate and professional education providers the entry-level expectations they may apply to graduates; 10. to state for the benefit of professional regulators the capabilities of graduates in terms of the minimum standards of knowledge, skills and attitudes to assure them that the institution/jurisdiction has prescribed and graduates have achieved a clear, coherent and complete set of requirements for the level of the award (degree) and/or professional qualification offered; 11. to provide a means for developing a program evaluation model based in part on student success in achieving specified outcomes; 12. to identify the learning experiences that are most likely to assist in the achievement of the learning outcomes specified; 13. to identify the means of assessment most likely to determine whether these outcomes have been achieved. 13 ibid. 6 2. to improve student access to further study (post-graduate and professional) by providing post-graduate and professional institutions with a transparent, discernible and comparable set of degree level outcomes; 3. to state for the benefit of professional regulators the capabilities of graduates in terms of the minimum standards of knowledge, skills and attitudes to assure them that the institution/jurisdiction has prescribed and graduates have achieved a clear, coherent and complete set of requirements for the level of the award (degree) and/or professional qualification offered; 4. to identify the learning experiences that are most likely to assist in the achievement of the learning outcomes specified; 5. to identify the means of assessment most likely to determine whether the outcomes have been achieved. 3. ontario universities’ undergraduate degree level expectations ontario and some other provinces of canada offer both a three-year “general” baccalaureate degree and a four-year “honours” baccalaureate degree.14 in ontario, law is a second entry bachelor’s degree, as are medicine, dentistry and pharmacy (despite the 14 other designations are also possible including ‘major’ four year degrees and specializations within the honours four year framework 7 degree nomenclature, suggesting doctoral level studies). normally, entrants to law study are expected to have an undergraduate degree, though students may occasionally be admitted after only two years of university. the law degree designation is now almost uniformly juris doctor (jd, just as in canada medicine offers an md, dentistry a dds and pharmacy often a dpharm). there are no honours-designated law degrees in canada such as the llb hons in england. the ontario law schools are in the process of complying with the requirement that they describe the learning outcomes of their graduates in light of the university undergraduate degree level expectations (uudles). for the sake of this discussion i will assume that the ontario second-entry law degree is equivalent to an honours level degree (at least) for the purposes of compliance with the uudles. after all, law school, unlike other canadian undergraduate degree programs, offers a menu of virtually 100% law courses. a committee of university academic vice-presidents (deputy vice-chancellors; provosts) developed the ontario uudles based on a model/schema that focuses on six levels of performance expectations.15 the degree levels are: 1. breadth and depth of knowledge 2. knowledge of methodologies 15 see schedule 1. for the undergraduate honours degree uudles in full. the complete set of the uudles for both undergraduate and post graduate programs can be found at: ontario universities council on quality assurance http://www.cou.on.ca/quality 8 http://www.cou.on.ca/quality 3. application of knowledge 4. communication skills 5. awareness of limits of knowledge 6. autonomy and professional capacity on the one hand, this is not a taxonomy: there is neither a consistent set of element types nor a classification system among the general categories. these “levels” are really different aspects or elements of the kinds and nature of knowledge, skills and attitudes expected of university graduates. except perhaps for uudle 1. to some degree, the levels are not internally ordered by complexity or some other rationale of a consistently applied, developmental or hierarchical kind. they tend to be compound-complex, made up of knowledge, skills and sometimes attitudes and values. on the other hand, each, or at least some levels, or parts of levels, might have their own taxonomic sub-classification. level 1., breadth and depth of knowledge, might in part be explicated by reference to bloom’s taxonomy in the cognitive domain (revised). 16 degree level 6., autonomy and professional capacity, might be understandable by application or extension, at least in part, of krathwohl’s taxonomy in the affective domain.17 each of these taxonomies is 16 bloom, b.s., engelhart, m. d., furst, e. j., hill, w. h., & krathwohl, d.r., taxonomy of educational objectives: the classification of educational goals; handbook i: cognitive domain new york, longmans, green, (1956) and revised and updated l. w. anderson, d. r. krathwohl, peter w. airasian, kathleen a. cruikshank, richard e. mayer, paul r. pintrich, james raths, and merlin c. wittrock (eds) a taxonomy for learning, teaching, and assessing: a revision of bloom's taxonomy of educational objectives allyn and bacon (2000) 17 krathwohl, d. r., bloom, b. s., & masia, b. b. taxonomy of educational objectives; the classification of educational goals. handbook ii: the affective domain. new york: longman, green (1964). 9 organized by an internal system: either increasing complexity, in the case of bloom’s taxonomy in the cognitive domain, with the lower level’s mastery being a prerequisite to the mastery of the next higher level from level 1 to taxonomy level 6, or in the case of krathwohl’s taxonomy in the affective domain, to taxonomy level 5, on a hierarchy of degrees of internalization.18 as noted above, there are counterpart schemes in many places that rely on outcomes for quality assurance. some systems appear to require outcomes statements without prescribing a system of degree level expectations.19 others stipulate a set of outcomes, while leaving room for institution-aligned variations, usually additions. the lumina foundation in the usa has created a degree profile that is to be tailored to institutional mission, mandate and characteristics.20 university law schools in canada, given the existence of apprenticeships or articles, frequently take the view that their primary, and sometimes only, responsibility is to prepare persons to meet the academic requirements for the conferral of a degree, but not necessarily to meet the legal profession or governing body’s expectations for those intending to qualify for legal practice. although that would be many canadian law schools’ preference, the reality is that they will all conform to the requirements of their 18 for an application of both bloom and krathwohl’s taxonomies in the cognitive and affective domain respectively to legal education, see petter, a. “a closet within the house: learning objectives and the law school curriculum” in gold, n., ed., ch. 5 essays on legal education. toronto:butterworths (1981) 19 see for example new zealand op. cit.; western [usa] association of schools and colleges op cit. where only general categories are provided. 20 lumina, op. cit. 10 local governing body, including the prescription of the federation of law societies of canada21. given the scope of this paper i have decided not to address this debate in detail. however, nothing in this paper would require a law school or legal educators to diverge from a commitment to a strong, deep and wide academic preparation in the law; the education promoted in this paper not only serves as a firm basis for professional practice but also for post-graduate study, career scholarship, and a host of legal and nonlegal careers. 4. uudles and legal education how do these learning expectations mesh with our goals for legal education? in looking for a place that comprehensively describes what law schools should aim to produce, one is led initially to the various legal practice courses and legal professions mostly in commonwealth countries that have sought to describe their goals. england and wales has contributed to the discussion in identifying its intended outcomes.22 australia, urged along by its goal of a national profession and the presence of a highly competitive post21 http://www.flsc.ca/en/national-requirement-for-approving-canadian-common-law-degree-programs/ 22 solicitors regulation authority, legal practice course: outcomes 2011, version 2. (september, 2011) www.sra.org.uk/documents/students/lpc/outcomes-sept2011.pdf we can expect much more work on learning outcomes in england and wales as a result of the letr . please see http://letr.org.uk/ 11 http://www.sra.org.uk/documents/students/lpc/outcomes-sept2011.pdf http://letr.org.uk/ graduate professional legal education sector, has played a part.23 canada has contributed in seeking to explicate what it means to be a lawyer.24 new zealand has produced work with statements of learning outcomes focused on the top up role of the professional legal education providers. 25 then there is the ample american literature produced by clinicians who seek to demonstrate the role clinic has in legal education. along the way the work of roger cramton 26 and robert maccrate 27 helps identify the needs and anticipated goals in american legal education. finally, and most currently and comprehensively, we are benefited by the thoughtful and deep analyses provided by the carnegie report (carnegie) 28 and the best practices report by roy stuckey and others (stuckey).29 the organizing principles, classifications or schemas used by authors and professions in describing professional capability or competence are often dissimilar to one another. the analytical framework employed or developed does not necessarily emerge from any conventional systematic analytical or synthetic approach. i am aware of one exception: 23 legal profession admission board – new south wales, practical legal training, statement of reconciliation against competency standards for entry-level lawyers. 24 federation of law societies of canada, task force on the canadian common law degree, final report (october, 2009) http://www.flsc.ca/_documents/common-law-degree-report-c.pdf . and http://www.flsc.ca/en/national-admission-standards/ 25 institute of professional legal studies, new zealand, graduate competencies, http://www.ipls.org.nz/for-employers 26 (american bar association, task force on lawyer competency: the role of the law schools. (“cramton report”) chicago: american bar association (1979) (the chair of the task force was dean roger cramton). 27 mccrate, robert. report of the task force on law schools and the professions: narrowing the gap (“the mccrate report”). chicago: american bar association, section of legal education and admissions to the bar (1992) 28 carnegie, op. cit 29 stuckey, op. cit. 12 http://www.flsc.ca/_documents/common-law-degree-report-c.pdf http://www.ipls.org.nz/for-employers in 1990 and 1991 in british columbia (bc), canada, a group of intrepid course planners carried out a systematic instructional design process for the postgraduate pre-admission mandatory program for intending bc lawyers that entailed job, task and skills analyses. that produced a highly specific “master skills hierarchy” with plentiful sub-skills, but no definition of the knowledge and a limited statement of values and attitudes required. this limits the value of the work for those designing the undergraduate law curriculum. 30 the most instructive and insightful work on what lawyers need to know and be able to do to be fully proficient practitioners is found in stuckey and carnegie. i have developed a rough concordance at “schedule 1” that links the ontario uudles, employed formally for course and program preparation and evaluation, to both the carnegie apprenticeships and tasks, and stuckey’s principles31 that are each aimed at the design of legal education programs intended to produce legal professionals. in so doing i will demonstrate that the uudles, substantially, but incompletely in important ways, serve the interests of lawyer education and that through their explication one would see a range of outcomes for the ideal law school curriculum and as well as for the even less-than-ideal current commonplace curriculum. then i will seek to show how clinical legal education as a methodology of teaching and learning serves to facilitate the accomplishment of the uudles as extended and interpreted through the carnegie and stuckey lenses. if i am 30 gold, n. “the british columbia professional training program: towards training for competence”, 1 journal of professional legal education 1 (1983) 31 stuckey, op. cit., chapter 2 13 successful, or at least to the extent to which the reader concludes that i am successful, i will have shown how clinical legal education serves the goals of all legal education, including a conventional legal education. 5. a closer examination of the uudles first then let’s take a closer look at some of the ontario uudles. here then are the six levels of the uudle 1., “breadth and depth of knowledge”: a developed knowledge and critical understanding of the key concepts, methodologies, current advances, theoretical approaches and assumptions in a discipline overall, as well as in a specialized area of a discipline 1. a developed understanding of many of the major fields in a discipline, including, where appropriate, from an interdisciplinary perspective, and how the fields may intersect with fields in related disciplines 2. a developed ability to: i) gather, review, evaluate and interpret information; and ii) compare the merits of alternate hypotheses or creative options, relevant to one or more of the major fields in a discipline 3. a developed, detailed knowledge of and experience in research in an area of the discipline 14 4. developed critical thinking and analytical skills inside and outside the discipline 5. the ability to apply learning from one or more areas outside the discipline the first element, a), of uudle 1. is compound complex. it seeks “a developed knowledge and critical understanding” and thus aspires to the higher levels of bloom’s taxonomy in respect of “key concepts, methodologies, current advances, theoretical approaches...” “remembering” is level 1. of bloom’s taxonomy. a reasonable surrogate descriptor of the lowest level of remembering information or facts would be represented by the ability of a person to recall (a sub-level) or restate verbatim (a higher sub-level) a piece of information, what might be called a “fact”. in law this level might be evidenced by the rote restatement of a rule. however, this degree level expectation 1. a) uses the words “developed knowledge” suggesting higher levels of the taxonomy such as at least understanding (level 2. of bloom) and perhaps applying (level 3.). as a rule, legal education would want even early students to be at least analyzing, level 4. of bloom. however, the degree level expectation goes on to use the words “critical understanding” suggesting the fifth level of bloom, evaluating. according to the schema it is necessary to be able to understand, apply and analyze before one can evaluate. and so legal education would pursue all these levels and take, or seek to take, students to the highest level, often but not always, to level (6.), creating. certain aspects of legal problem solving 15 no doubt take the student to creating, depending on how fresh the problem is or how close it is to problems previously solved. 32 no doubt we would expect law students to be able to achieve higher levels of the taxonomy in first year, though strategic teaching will take students through the levels of remembering, understanding, applying, analyzing, evaluating and creating, not merely to the higher levels without some practice in the middle levels. not until third year will students be developing their own schemas for critical evaluation thus combining creating with evaluating. in addition students who provide novel, efficient and effective ways forward for clients, public policy development, legislative reform, risk management or project design will be operating at the highest levels of bloom as well as doing what the uudles, stuckey and carnegie would be aiming for. carrying on with the uudle, the item “key concepts” recalls the underlying bases and central ideas of and within the divisions of legal knowledge that are undertaken. “[m]ethodologies” suggest not the ability to do, i.e., carry out a methodology, in this uudle, but rather an understanding of the steps in the operations, procedures, and sequences and perhaps even protocols. the uudle refers to “theoretical approaches” which might be coterminous with knowledge of theories, here legal theories, or describable ways of thinking about material presented. the uudle insightfully declares 32 see petter, a. op.cit. andrew petter examined both the cognitive and affective domain taxonomies and wrote learning objectives for each level and sub-level of both taxonomies. petter’s painstaking, careful and insightful work has to my knowledge never been advanced. contrarily, this paper’s current review of these learning hierarchies is cursory and meant to be illustrative. 16 that disciplines are in effect sub-cultures with “assumptions” of various sorts that at least initially should be made explicit and learned, lest they be passed on as unexplained habits. this examination of uudle 1. a) begins to demonstrate a reasonably sophisticated understanding of the cognitive skill learning requirements of university (law) graduates. the generic uudles do not select content, rather leaving that to the disciplines. also, the uudles are not structured by level of study (year 1, 2 or 3); rather they are statements of the terminal capabilities of a university graduate. as we progress from level 1. a) to level 1. b) we move from a “developed knowledge” to a “developed understanding” of fields, interdisciplinarity, and field intersection. perhaps in law this would include subjects and cognate subjects from other disciplines. at 1. c) i) the uudle calls for “a developed ability” to collect and assess information, to make sense of it and then in 1. c) ii) students are required to evaluate by comparing the qualities of alternate approaches or options in “one or more” or conceivably all fields or subjects in the discipline. moving from c) to d) to e) and f) the student’s expected depth and breadth of knowledge increases along with her analytical and critical thinking leading ultimately to being able to apply learning from outside the discipline to the discipline or fields within it. this somewhat detailed review of uudle 1 illustrates some aspects of its relevance to law study and its relatively traditional cognitive skill and substantive knowledge elements. 17 as one progresses to level 2, application of knowledge, of the uudles one moves through problem solving, argument as a means of problem solving, and the ability to deal with advanced scholarship and current knowledge development (research) in the field development. in level 3, knowledge of methodologies, the uudle takes us to more sophisticated problem solving and the critical assessment of arguments. this is an area rich in aspects relevant to a legal education. uudle 4 is a very brief statement about communications skills, both oral and written. here the uudles are clearly insufficient for the legal educator leaving practically barren the field of most operational lawyering skills33 and related subject matters.34 uudle 5 is perhaps the most practically important outcome for professionals: “an understanding of the limits to their own knowledge and ability, and an appreciation of the uncertainty, ambiguity and limits to knowledge and how this might influence analyses and interpretations.” clearly professionals who do not know their limits pose dangers to their clients. they must know how to deal with their limitations both in action and in preparation for their work. sometimes circumstances leave no option and 33 e.g., interviewing, counseling, negotiation, mediation, writing, drafting, advocacy, and so on. 34 there is an ample and deep literature on legal skills and lawyering generally. i have taken the core of this literature as read, or at least understood in outline, for the purposes of this paper. the richness of the literature was abetted by the seminal and signal work of gary bellow and bea moulton in the lawyering process: materials for clinical instruction in advocacy. mineola, n.y.: foundation press (1978). this is a book on the role of the lawyer in the context of advocating a client’s interests. it is not narrowly a book on “advocacy”, as courtroom representation. 18 professionals must work with what they know and can do; most times they are bound to obtain the knowledge required and to have or somehow acquire the know-how. uudle 6. is autonomy and professional capacity. this uudle is concerned with the ability to learn to learn. it is also the uudle occupied with integrity and social responsibility. here again the uudles sorely but explicably understate the requirement for professional learning and practice. there is nothing to stop legal education from expanding the contents of this uudle in order to meet the requirements of a (professional) legal education. clearly, the uudles do not prescribe the fullest desirable statement for learning outcomes for law students. they miss at least four critical components for legal education. first, professional skills such as interviewing, negotiation, advocacy etc. are not treated at all, though oral and written communication could be expanded to fill this need. these operational capabilities are at the heart of carrying out legal work. secondly, professionalism is only averted to and is really a different subject from uudle 6.’s reference to “academic integrity and social responsibility”, though professionalism partakes of these two elements. thirdly, the uudles do not seek to integrate the professional profile elements that, when combined, make up the discipline of lawyering that both carnegie and stuckey illuminate. professional legal practice is complex and artfully coordinates, orchestrates and integrates the full range of learnings from the variety of outcomes described. fourthly, the understanding of the role that context and 19 circumstances play in finding approaches to meeting clients’ needs is not treated at all in the uudles: the uudles are not organized so as to nuance and texture learning according to context (personal, social, economic, political etc.), a major contributor to the implicit perplexity and indeterminacy of legal problem solving on behalf of clients. the ontario universities council on quality assurance that oversees the uudles scheme would expect a law school to supplement the uudles with degree level expectations for law graduates of this kind. i have developed a concordance of the outcomes statements contained in the uudles, carnegie and stuckey at “schedule 1” that shows the equivalence or comparison of the components of one system to the components of another. given the gaps in the uudles relating to the aims of a legal education, the components of both carnegie and stuckey do not line up perfectly with the uudles’ levels. however their placement suggests where the uudles might be supplemented for law study, were a law school seeking to comply with the ontario degree level expectations. one of the reasons we specify learning outcomes is so we can devise learning activities and assessment techniques that will help us support the achievement of the outcomes on the one hand and tell us to what extent they have been achieved on the other. can clinical legal education support the achievement of the uudles and of the carnegie and stuckey outcomes? 20 6. what is clinical legal education? clinical legal education is frequently described as a methodology for learning and teaching. it is usually defined as a method 35 that entails a student undertaking a recognizable and active role within the legal system, under supervision, usually as a lawyer, though other roles such as decider or investigator or law reformer would also be appropriate. classically, and some might say necessarily, this involves live client representation or its equivalent in other legal roles.36 the supervisor, as guide and role model, should seek to be: thoughtful; insightful; measured-to-person, need and context; learned; holistic; and above all, constructively helpful. the importance of the role of the clinic supervisor in explicating and supporting student learning cannot be understated.37 this interpretive and reflective modeling and methodology can contribute to students’ lifelong habits of learning and problem solving. in engaging the whole student, her thoughts, feelings, 35 bellow, g. “on teaching the teachers: some preliminary reflections on clinical legal education as methodology, in clinical legal education for the law student, working papers prepared for clepr national conference, june 6-9, 1973, new york: meilen press inc. (1973) 36 “for the purposes of this article, the term clinical legal education-including variations such as “clinical programs" and "the clinical method" refers to any law school course or program in which law students participate in the representation of actual clients under the supervision of a lawyer-teacher. courses limited to simulation and unsupervised placements, therefore, are not included in the definition.” frank s. bloch, “the andragogical basis of clinical legal education”, 35 vand. l. rev. 321 at p. 326. (1982) 37 for an extensive treatment of student supervision in externships (a clinical model employing a placement into a setting not directly controlled by the law school, though the supervisor and student have agreed learning related responsibilities) ogilvy, wortham and lerman, learning from practice: a professional development text for legal interns. 2nd. edition. west law school, 2007 21 hopes and fears, the supervisor simultaneously engages the already stimulated affect and intellect of the student in her quest to deliver signal service. in this model, the student’s experiences as primary actor and her thinking and feeling about them before action, in action and upon reflection38 are the focal point for guided debriefings and interpretations by the supervisor and often by the student herself once she has been trained to reflect in and on action. the teacher's role will require her to intervene at strategic moments where learning may be maximized. the special relationship of student and teacher will differ markedly from the traditional one. … the teacher should be a sensitive and caring individual who is able to empathize with the students' feelings… also i think it should be noted that clinical work is not ad hoc. it depends upon a structured program of seminars and workshops, as well as upon didactic sessions. the clinic class must be given opportunity to organize and structure their experiences and to discuss them in a meaningful way.39 38 the work of donald schon is best known for its contribution to learning about the process of reflection with and without supervison and before, after and during the provision of professional service. see schon, donald a., the reflective practitioner: how professionals think in action. london: temple smith (1983) and schon, donald a., educating the reflective practitioner. san francisco: jossey-bass (1987). more recently see leering, michele. conceptualizing reflective practice for legal professionals, 23 j. law and social policy 83 (2014) and casey, timothy. reflective practice in legal education: the stages of reflection, 20 (2) clinical law rev. 317 (2014). 39 gold, n. “legal education, law and justice, the clinical experience”, 44 sask. law review (1978-1979), 98 at p. 99 22 richard grimes takes the following view of what clinic means as methodology: “a learning environment where students identify, research and apply knowledge in a setting which replicates, at least in part, the world where it is practised. ... it almost inevitably means that the student takes on some aspect of a case and conducts this as it would ... be conducted in the real world.” 40 this would seem to allow for simulation and other methodologies to be included within the working definition of clinic as a methodology of learning and teaching. frank bloch adopted “live client under supervision” as his definition for the purposes of his article on andragogy and clinical legal education.41 however, on a careful reading of the footnote supporting his adoption of the definition he notes the preference and desirability among some experienced clinicians for the live client under supervision approach: meltsner and schrag say that simulation alone is not satisfactory. however, even they might agree that a varied clinical model employing several clinical instructional strategies might be satisfactory. also, bloch rules out unsupervised 40 grimes, r. “the theory and practice of clinical legal education” in j. webb and c. maugham (eds.) teaching lawyers’ skills (london:1996) at p. 138 41 bloch op. cit. at p. 326 footnote 15 “most clinicians use simulations to some extent as a part of their method of instruction. indeed, clinical teachers who write on simulation as a teaching technique often include actual client representation as an element in their program. thus, the authors of a widely circulated text on simulation concluded after experimentation that simulation alone was not a satisfactory clinical experience. see melstner, m and schrag, p. toward simulation in legal education: an experimental course in pretrial litigation (2nd ed.). foundation press. (1979) in its recent report the committee on guidelines for clinical legal education of the association of american law schools and the american bar association concluded "the clinical legal studies curriculum should, if at all possible, include some experience working on live cases or problems." id. at 65. cf. id. at 20 (the actual guideline for the use of clinical teaching methods states: "where resources, cases, and law permit, law student work on live cases or problems is a valuable but not an exclusive [clinical] method. …’ 23 experience. clearly without supervision there is no instruction; and while there may be learning there is no “teaching”. in the view i adopt the clinical method requires students to work as if representing a client or undertaking some other legal role very broadly defined, at minimum, and not necessarily, though whenever feasible, in conjunction with or in live-client work. i also accept bloch’s statement, and stuckey’s as well, that it is not only preferable but also ultimately necessary that students engage actively in live client under supervision activities. therefore a phased and varied approach including observation, role-playing, problem-based learning, simulation, and practice in numerous contexts and roles is most useful. simulation activities would be modeled along the lines of common medical, nursing and dental education that makes good use of simulated or standardized clients. 42 in these professions students may: encounter problems, actors and others trained and prepared to be patients; be provided with opportunities for observation; engage in structured and less structured case discussion (various forms of “rounds”); and progress through a progression from simpler to more complex tasks and on to full-time, onsite service and learning under supervision known as clerking or simply placements in other cases. later in the learning program graduates serve as paid and supervised residents. 43 these progressive stages structure learning in a more systematic way. also the model 42 see http://paulmaharg.com, an interesting blog by paul maharg covering a range of legal education topics. the following http://paulmaharg.com/2011/09/16/standardized-clients-northumbria-university-lawschool/ provides insight into his work with standardized patients. a book is expected in a year or two. 43 in great britain and australia the term or a version of the term “registrar” may be employed. 24 http://paulmaharg.com/ http://paulmaharg.com/2011/09/16/standardized-clients-northumbria-university-law-school/ http://paulmaharg.com/2011/09/16/standardized-clients-northumbria-university-law-school/ tends to protect clients from overly fresh novices and provides a baseline for supervisor’s assessment of the qualities, characteristics and personalities of students for later, on-thejob supervisory interventions. importantly, a phased approach builds knowledge, skills and confidence, as well as helping to develop the self-concept of the proficient practitioner. conventionally “clinical” means the direct observation of patients and so a “clinician” is a provider of services to client or patient. in my usage as well as grimes’ it means approximating as closely as possible the clinical incident or problem. clinical legal education is learning-centred and sometimes student-centred, depending on the degree of freedom with which the student is provided in the construction of the learning program and its experiences. 44 it focuses on the learning interests and needs of the student and provides the student with significant control over the learning process. it depends on the student’s input developed through investigation, research and problem analysis, among other skills and procedures. learning centred approaches shift the focus from the teacher to the student and to her needs and interests. learning centred 44 “first, it is important to draw a distinction between student/learner-centred and learning-centred education. (lce) unlike student/learner-centred education, a learning-centred approach does not necessarily imply individual learner control over issues such as content coverage, learning strategies and assessment methods. rather, lce requires a community of students/learners to make choices within a responsive, carefully structured, and guided learning environment. lce does focus, however, on what students are expected to know and are able to do (e.g., demonstrate critical thinking, apply ethical principles and problem-solving skills) in the context of a field of study. lce includes both individual and collaborative learning experiences and places emphasis on the investigation and resolution of authentic problems through interactive and experiential engagement. thus, by calling the programme “responsive,” we mean that it responds to the diverse needs of the learners (in this case, the faculty cohort), critical teaching and learning issues in university settings, and available resources.” harry hubball and gary poole, “learning-centred education to meet the diverse needs and circumstances of university faculty through an eight-month programme on teaching and learning in higher education”, international journal for academic development, vol 8, no. 1-2, p. 12. (may/november 2003) 25 approaches tend to produce deeper and more meaningful learning.45 by and large they are constructivist, building on previous learning and scaffolding it upon earlier understandings and capabilities, making new and personally unique understandings of the things they have experienced.46 this paper contends then that the clinical methodology can and should be both pervasive and the dominant methodology within legal education and that it can, with careful structuring and management, achieve the full range of desired outcomes for the law graduate. there is no room here to elaborate on the diverse clinical methodologies. 45 biggs, j. "what do inventories of students' learning process really measure? a theoretical review and clarification" 83 brit. j. ed. psych. pp 3-19 (1993) and biggs j. and tang c., teaching for quality learning at university (3rd edn) buckingham: srhe and open university press (2007) 46 “the theory of constructivism rests on the notion that there is an innate human drive to make sense of the world. instead of absorbing or passively receiving objective knowledge that is "out there", learners actively construct knowledge by integrating new information and experiences into what they have previously come to understand, revising and reinterpreting old knowledge in order to reconcile it with the new (billett 1996). the cognitive structures that learners build include "procedural" knowledge ("how"--techniques, skills, and abilities) and "propositional" knowledge ("that"--facts, concepts, propositions). often neglected are dispositions--attitudes, values, and interests that help learners decide: is it worth doing? knowing "how" and "that" is not sufficient without the disposition to ‘do’. … using a constructivist approach, teachers facilitate learning by encouraging active inquiry, guiding learners to question their tacit assumptions, and coaching them in the construction process. this contrasts with the behavioralist approach that has dominated education, in which the teacher disseminates selected knowledge, measures learners' passive reception of facts, and focuses on behavior control and task completion. a constructivist teacher is more interested in uncovering meanings than in covering prescribed material.” kerka, sandra, constructivism, workplace learning, and vocational education, eric digest, no. 181, 1997 eric identifier: ed407573; eric clearinghouse on adult career and vocational education columbus oh (footnotes omitted) 26 7. problem based learning and clinical legal education one vibrant and very successful methodology of professional education used extensively in medicine and now to some extent in law47 and elsewhere is student-centred, problembased learning (spbl). in my view it meets the requirements for consideration as a clinical method. following is a description of spbl: 48 as barrows and others suggest, spbl is the learning that results from working toward understanding or resolving a problem. the problem is encountered first in the learning process before any reading in the area and, in the purer applications of the method, before, or often instead of, lectures or other formal course work. the only "preparation" students need is their prior knowledge and experience. the primary objective of spbl is to accumulate the basic concepts of a discipline in 47 see carrie menkel-meadow, taking law and _______ really seriously: before, during and after “the law” 60 vanderbilt law review 555, (2007) section on cide and pbl pp. 591-595 where menkel-meadow discusses a mexican revolution in the use of interdisciplinary pbl. this is for the most part an article about the merits of a truly interdisciplinary legal education in which traditional legal subjects keep company with sociology, anthropology, psychology, philosophy and so on. 48 suzanne kurtz, michael wylie, neil gold, “problem-based learning: an alternative approach to legal education” 13 dalhousie l.j. 800 p. 800-801 (footnotes omitted). (1990) also see jos c. moust & herman j. nuy “preparing teachers for a problem-based, student-centered law course”, 5 j. prof. legal educ. 17, pp. 19-23“ (1987) …[s]tudents are given problems … as the starting point for self-directed learning activities. the students' learning process is, as far as possible, initiated by these carefully described concrete practical or theoretical problems … by learning this way students discover from the outset that working on problems requires an integration of different subject areas, and extensive co-operation with peers . …while discussing a problem, students become aware of uncertainties, questions, and activate ideas they have about mechanisms, processes or procedures which could be responsible for the solution or explanation of this problem. students are asked to formulate their own learning goals, based on the questions unresolved during their discussion…“ 27 the context of problems or issues encountered by practising professionals. instead of learning self-contained and quickly forgotten bodies of knowledge, such as information covered in lectures, information is gradually assembled in a more "helter-skelter" way as students reflect on issues or gaps in knowledge which they identify as they work through problems. an assumption of spbl is that the way information is acquired assists the student in remembering and applying that information in practice. spbl offers other important benefits as well. it develops self-directed, life-long learners, better able to cope with changes in the law. it encourages student independence and responsibility in the learning process. students are more motivated, since the learning seems more relevant. problem-solving skills can be better examined and developed. misconceptions and ineffective reasoning can be identified and confronted. communications skills can be taught using the method. skills useful in group practice can be developed. prior knowledge and experience is reactivated and built upon.” in an excellent discussion of pbl in the context of clinical legal education three authors raise the question:49 there is clearly a debate that continues about the efficacy of using the pbl method exclusively to impart knowledge to students. the writers themselves have 49 cath sylvester, jonny hall, elaine hall, “problem based learning and clinical legal education: what can clinical educators learn from pbl?”, 6 int'l j. clinical legal educ. 38, p. 44. (2004) 28 concerns about whether the use of a pbl approach can adequately provide the students with the fundamental doctrinal knowledge necessary for the foundation subjects of an english law degree. we wonder whether it is time effective to always require students to begin with the problem and learn the detail of the discipline by forming their own learning objectives and then meeting to synthesise findings. we have concerns that there can be full coverage of the discipline within the time frame available using this method. on the other hand, if some traditional methods of teaching are inserted at the start of the course will that not defeat the object of the students defining their own learning objectives and taking responsibility for their own learning? the authors’ challenges to the efficacy of pbl have nothing to do with its appropriateness to learning “the fundamental doctrinal knowledge necessary for the foundation subjects of an english law degree”. and the authors refer to using it “exclusively” to acquire knowledge. while pbl is useful for learning legal knowledge it does that -and much more. they go on to raise doubts about it as an efficient method for acquiring foundational knowledge and question whether it can or should be supported by traditional, information delivery methods. the pbl approach has worked well in medicine where the amount of knowledge required to be learned is very likely well in excess of what legal education requires of its learners. 29 most importantly, they question whether timely and sufficient coverage can be accomplished. i believe that legal educators will need to invest the time into learning how to make the method efficient and effective. when that occurs the learning will expand. in addition, pbl teaches students to know their limits and fill the gaps as needed. the bugaboo of coverage has been used to criticize many a reform with reflective, learning and teaching intensive, components. in my experience the plaint of “coverage” is a form of fear mongering that focuses not on the students’ learning needs but on the teacher’s reluctance to change and acquire the way to manage learning efficiently and effectively employing different models of instruction. those who have complained that not all time spent is valuable may not appreciate the need for students to learn, through experience and supervised discussion, to become clearer about the “issues” to pursue and the means to inquire, investigate and research in order to begin to posit ways forward. the bugaboos of time, coverage and efficiency50 are, i suspect, consequences of our failure to deploy resources adequately, innovatively and efficiently; i fear that the real barrier to the success of pbl and indeed of clinical legal education generally is not the failing of the methodology but the systemic discrimination by university legal education against putting students and their learning first. 51 to repeat, as educators 50 see hall, j and kerrigan, k in “clinic and the wider law curriculum”, 16 int’l j. clinical legal education 25 (2011) 51 it is very difficult to make deep structural change to curriculum and its delivery. the delivery paradigm -one course, one professor; all courses x hours per week, with no variation; sat written examinations etc. - runs deep, with commensurate expectations of professional freedom to choose how time is spent. 30 become better at the deployment of a method they will become more efficient and effective. the scope of this paper limits the extent to which this discussion ought to be pursued at present. i am convinced that trained preceptors (instructors) and experienced students can learn the method and make it more and more efficient and effective over time. this is part of the learning process and is one if its significant outcomes. a further question arises on the issue of coverage. how much substantive and adjectival law must a student “know”? each jurisdiction answers this question differently. in england and wales some intending lawyers need only complete a one year common professional examination. 52 casual conversations i have had with english lawyers, especially barristers, have often reflected their great pride in never having “read” law at university. in most parts of the common law world only some subjects are required, though three years of subjects, without a prescription beyond the initial set of courses, are normally required. there are many lawyers who practise law in fields unknown to their law schools and some practically unknown to their professional colleagues. in the 1960s in canada labour law was a new subject. more recently, computer gaming law has found its way into the curriculum. we have somewhat lazily not tried very hard to clarify and specify the minimum body of knowledge to make a graduate a law graduate, except for 52 in order to qualify for the cpe course of study, an applicant must either have “a suitable academic or vocational qualification or be a mature student. “ see: http://www.lawsociety.org.uk/careers/becoming-asolicitor/routes-to-qualifying/ 31 http://www.lawsociety.org.uk/careers/becoming-a-solicitor/routes-to-qualifying/ http://www.lawsociety.org.uk/careers/becoming-a-solicitor/routes-to-qualifying/ the various prescriptions of minimum specified subjects students must take around the globe which have not been developed from any systematic process i have ever heard of and while maintaining a nearly common first year core, thereafter differ from place to place. good clinical teaching and learning not only provides clear markers for students on the limitations of their knowledge but it also engenders the ability to learn to learn, the most important macro skill any professional should acquire. i will now focus on whether clinic, beyond pbl, could meet the learning outcomes specified in the uudles and in both carnegie and stuckey. 8. the desirable structural complexity of clinic however, pbl is not nearly enough. it is a useful methodology for the introduction of the variety of aspects of substantive and procedural law that we are interested in assuring students know and can work with usefully. it is an active and sure surrogate for didactic and case method/socratic approaches that are so notoriously limited.53 however, even in the early days of a student’s law study pbl should be joined with live-client 53 i need not rehearse the classical challenge against c.c. langdell’s legacy: the heartless, dispassionate, objectifying, reifying lawyer. were we to accept that the langdellian library case titration model should be jettisoned in favour of active, experiential, clinical learning we would forever assure ourselves that students learn about clients’ needs and wants, their struggles and mistakes, their pursuits of the unjustified and the merited, and their hopeless entanglement in the nasty realities of life and the wonders of hopefulness. 32 representation with “real consequences on the line.” 54 the benefits of live client representation are many and varied. first, truth is stranger than fiction and the real world is complex and unpredictable. it is unusual for clients to present problems that are resolved with reference to any single legal notion, field or representational approach. this context is rich and its stimuli are engaging and perplexing. it awakens an interest in managing the complex and tackling the ineffable. second, student motivation to learn is enhanced through the desire to perform proficiently. third, in poverty law clinics, a law reform office, pro bono projects and others where those without resources or resourcefulness are found, students are often motivated to do for clients what clients are unable to do for themselves.55 finally, the presence of peers and a supervisor provides a supportive environment in which to practise with a failsafe protective net -most of the time. besides students usually wish to provide the best possible service to their clients and welcome support in so doing. first and foremost clinic, including pbl, is not a unitary method of learning and teaching. the central feature of clinic is that it demands that students undertake learning in the context of a lawyer’s (or other legal agent’s) role with oversight, supervision and feedback and that there is always a rich context of facts and factors to take into account in 54 stuckey, r. “teaching with purpose: defining and achieving desired outcomes in clinical law courses” 13 clinical law review 807 (2006-2007) “students need to observe and experience the demands, constraints, and methods of analyzing and dealing with unstructured situations in which the issues have not been identified in advance. otherwise their problem-solving skills and judgment cannot mature.” 55 hall and kerrigan op. cit. p.34 33 working through the problem towards its resolution. in the enriched and varied clinic model there will be a mixture of observation, pbl, simulation and live-client or equivalent models. in the “equivalent” models i am referring to legislative clinics, law reform, community development, community education and advocacy clinics. it has been feasible in some places to structure judicial internships. though the student does not take on the role of judge, she does assume the role of judge’s clerk. certain externships that are carefully supervised may also qualify if there is structured and reliable supervision and there are clear learning outcomes specified and achieved.56 problem development for pbl and simulation is itself a complex process and requires instructors’ skill in developing and sequencing problems in increasing complexity both legally and in terms of the contextual and professionalism factors that are in play. fortunately there is significant experience with this in medical education and from some law schools, many international, that have learned how to structure, sequence, manage and support problems. live client problems of course defy being ordered neatly. that is life – it is rarely neat. life is always complex and presents many conundrums, so the sooner and more often one can engage with it the better. sequencing of learning according to a prescribed 56 blanco, barbara a. and buhai, sande l. externship field supervision: effective techniques for training supervisors and students, 10 clinical law review 611. (2003-2004) see especially: b. proposed externship “teaching curriculum”: developing the skills of communication, reflection and self assessment, pp. 635 ff. the article features the models of peter hoffman, liz ryan cole and mary jo eyster. in this article blanco and buhai devise their own approach. see also footnote 31 above. 34 pattern may be marginally manageable with good intake management and case assignment techniques. that cases arrive randomly does not mean that the watchful instructor cannot manage them so as to maximize opportunities for learning.57 following is a suggestion of how that might be accomplished: 1. provide statements of clear learning outcomes for the intended learning using the uudles, carnegie and stuckey (or whatever schema is in place); 2. create a matrix of the learning outcomes for each student (this might be done by the students); 3. project from the case intake record the likely outcomes that will be achieved in the handling of the case at hand and note these outcomes in the student outcomes matrix for follow up; 4. adjust the outcomes as the case progresses; 5. recap the learning at a strategic point in the semester/term of study; 6. look out for cases that will fill the gaps58 57 i recall a student who aimed to be a criminal defence lawyer. he came to clinic to learn how to handle such cases. he traded his civil cases with students who were less interested in criminal defence work. at that time i required students to have a mix of matter types including a variety of forms of representation and subject areas. my vigilance was no match for the student’s resourcefulness and drive to take on criminal cases. however, i did insist and he succumbed. he is his city’s preeminent criminal defence lawyer today. 58 this may be somewhat challenging at first as one learns to identify and record outcomes. students may be charged with responsibility to seek opportunities to meet the requirements of the course outcomes so as not to burden administration and more importantly to improve student focus on learning needs and requirements as well as their achievement. this will also enhance the student’s personal catalogue of learnings and learning gaps. 35 there are many forms and formats that would support such student learning. just as law firms or government departments or panels of judges/tribunal members might meet as a group to discuss cases in progress, so too may clinic students gather with their instructor(s), one-on-one or in small groups. these sessions may take many forms structured for example around formats for pbl learning. pbl may be supported by student requests for information or even brief discussions or lectures from experts arranged by the students where it is difficult to find the relevant material. the support to pbl may become less formal over time but at the same time more intensive in-group and with members. or, there may be special skills development sessions focused on preparing for the upcoming activities (e.g., a hearing, an interview, an advising session, a negotiation or mediation, etc.) in which the students take on the professional role. the session may take the form of “rounds” to provide the student in charge with insights from the class and instructors to aid in the management and progression of a specific case. there may be a group debriefing of a completed or partially completed case to track its progress and the work required to complete it successfully. expert practitioners, judges, government lawyers and staff, in house counsel, social workers and other health care professionals, financial advisers, policy experts, professional regulators, applied ethicists and so on may join sessions at strategic moments or be trained to lead sessions. in my model i am assuming large numbers of clinical experiences in the context of live clients under supervision. i am also assuming a phased process leading to high 36 frequency live client work through other methods employed in medical education such as observation, simulation and pbl. in addition, i am also assuming that within live client work there will be seminars, workshops, case debriefs, rounds and one-on-one supervision or mentoring. the enriched clinical method will be supported by a range of learning and teaching interventions that are either whole group, subgroup or occasionally one-student focused. the interventions chosen will be a function of what outcomes they are capable of supporting. and each method is not itself monolithic nor will it be used completely or exclusively. in different hands with differing elements at different times in varying contexts it may be suited to accomplish different things. there are various models of supervision, of reflection and of debriefing. a lecture is not always purely a lecture and sometimes when a supervisor’s comments on a student’s performance go on for a few minutes she is really delivering a lecturette. pbl has a number of specified traditional or orthodox methods but no single instructor conducts it the same way as another, not only because of personal approach, personality or mode of reasoning etc., style but because of choice related to context, situation or student needs, qualities, or characteristics. within pbl, simulation and live-client representation there will be myriad opportunities to focus on key elements of learning. the instructor may be called upon to search within her instructional repertoire to find the best opportunity and teaching tool to facilitate learning at that time. so for example, the clinic instructor may choose to generalize from 37 many similar student experiences to practice tendencies that are ineffective or inappropriate. to deal with this she may choose to debrief the cases and demonstrate the generalized case-handling problems. perhaps the problem will be in students’ weaknesses in their ability to carry out an effective interview and gather all the necessary facts. this might call for a simulation or demonstration, followed by either or both debrief and student practice. it may also call for a review of the pertinent interviewing literature. perhaps the problems were procedural and related to poor question sequencing; perhaps students were unable to use skills well, through a failure of active listening. the teaching method selected to deal with the issues would be matched to the learning sought, all within the larger pbl or clinical method. 9. matching teaching methods to learning outcomes59 so, within the broad frameworks of live-client under supervision clinics, pbl, and fullblown simulation60 (neither role play nor vignette exercises) the clinical instructor has a full range of teaching strategies at her disposal. selections can be made from among them 59 see e.g., bok, derek, c., our underachieving colleges: a candid look at how much students learn and why they should be learning more: the neglect of pedagogy. new jersey: princeton university press p. 49. (2006) 60 “a simulation is a form of experiential learning. simulations are instructional scenarios where the learner is placed in a "world" defined by the teacher. they represent a reality within which students interact. the teacher controls the parameters of this "world" and uses it to achieve the desired instructional results. simulations are in way, a lab experiment where the students themselves are the test subjects. they experience the reality of the scenario and gather meaning from it. it is a strategy that fits well with the principles of constructivism.” http://olc.spsd.sk.ca/de/pd/instr/strats/simul/index.html 38 http://olc.spsd.sk.ca/de/pd/instr/strats/simul/index.html of the teaching tools most likely to help produce the learning sought or required. 61 however, as broad frameworks for teaching and learning each of these methodologies, used alone or in combination, whether phased or contemporaneously, have dominant characteristics and ways of being deployed. all three share the following common characteristics: 1. students must devise their own learning plan within the method. 2. instructors can facilitate the learning of prescribed outcomes by focusing student performance on them and by directing feedback upon them. 3. they are high engagement activities. 4. they develop the analytical and critical faculties of students. 5. they promote the use of research methods, investigative and planning skills. 6. they build teamwork skills. 7. they raise professional issues in context and pose dilemmas requiring students to act in concert with their values, beliefs and professional requirements or expectations. 8. they illustrate the complexity of real life and virtual problems. 9. they require students to use their full range of resources. 10. they are constructivist in orientation. 61 nilson, linda b., teaching at its best: a research based resource for college instructors. 3rd edition. san francisco: john wiley & sons. (2010) see in particular: “matching teaching methods with learning outcomes” at p. 103. 39 earlier i responded to a critique that neither clinic nor pbl nor the two combined, could deal with the acquisition of whole bodies of relevant, foundational knowledge. there i said i thought that pbl could be a successful way forward and that it had succeeded elsewhere in medicine, and in law, albeit to a limited context. given constraints of space and scope i cannot progress this argument further here; however, i recognize it warrants further attention. this is a work in progress: a review of the medical and wider pbl research literature is indicated to provide better answers. if there is a systematic body of knowledge we believe all students must acquire we must describe and specify it. once it is known and mapped into learning outcomes we can then select the likeliest approach to successfully acquire the knowledge. 62 the case/socratic method that structures the learning of the body of knowledge around a series of reported cases, law review articles and other materials, and questions, is both limited and limiting educationally. however, if desirable because it promotes the achievement of specified outcomes, there might be socratic moments or experiences within pbl or live client clinic to develop and test analytical skill development and the ability to synthesize knowledge for problem solving. within the broader framework of live-client under supervision clinics, pbl, and fullblown simulation a careful instructor proceeds more or less as follows. to begin with the instructor focuses on the achievement of clearly stated, pre-mapped learning outcomes 62 biggs, j., “aligning teaching and assessing to course objectives”, conference paper, teaching and learning in higher education: new trends and innovations, university of aveiro, 13-17 april, 2003 40 for the course. next she identifies the learning components of each outcome to be learned as it may be a compound or complex learning outcome. third, the instructor will reflect upon the learning preferences and learning styles of the learners.63 then she will select interventions, modes of supervision, individual and group activities including, methods, techniques, aids and devices suited to the achievement of the outcome(s). fifth, the instructor will devise and carry out assessments of student performance for both formative (teaching and learning) and summative (certification; final examination) that are likely to promote the acquisition of the learning outcomes. this approach will help instructors assure the achievement of the full range of law school learning outcomes through the development of teaching interventions either in advance of or as required in the context of live client, pbl and simulation clinics. active learning with a focus on reality and live client experience in all phases will remain the watchword. however, to assure the learning of all requisite knowledge, skills and values some of the learning will need to be constructed through pbl, simulation or adjunct activities within live client clinics. there are many reasons why we have developed a preference for active learning. to begin with, it tends to be engaging: the student is attentive and task focused (on task). 63 kolb, d. a., experiential learning, englewood cliffs, nj: prentice hall (1984) kolb’s “cycle of learning” focuses attention on learner’s preferences for different kinds of learning experiences. he suggests that no matter the beginning point of a learner the learning cycle inevitably goes through the four quadrants of the cycle: active experimentations (doing); concrete experience (feeling); reflective observation, (watching); abstract conceptualization, (thinking). 41 second, it centres students on activities that will help them do something they want or will need to be able to do in their practice. then, it permits them to test their knowledge, skills and abilities and obtain constructive feedback. all of these opportunities are offered in a safe environment in which students venture their approach. this active process tends to promote deep, long lasting and aligned learning.64 it also offers observing instructors an opportunity to check the progress of learning to enable them to make any adjustments they consider useful. so, finally can clinic achieve the uudles as supplemented by carnegie and stuckey? my answer is yes, provided that there is a mix of clinical approaches including, among others, both pbl and live-client under supervision models. pbl can meet all of the requirements of the uudles 1. to 4. inclusive. these are “knowledge” and “communication”; each would be addressed both directly and indirectly through pbl’s rich variety of activities, readings, research, exercises, discussions, presentations, constructive feedback sessions and supplementary activities either programmed for or requested by students. as for uudles 5. and 6. 65, students should, as 5. requires, achieve “an understanding of the limits to their own knowledge and ability, and an appreciation of the uncertainty, ambiguity and limits to knowledge and how this might 64 biggs, j. "what do inventories of students' learning process really measure? a theoretical review and clarification" 83 brit. j. ed. psych. pp 3-19 (1993) and biggs j. and tang c., teaching for quality learning at university (3rd ed.) buckingham: srhe and open university press (2007) 65 see footnote 8. above. readers particularly interested in a careful reading of the uudles or who are keen to have them at hand while reading this text will be able to extract them from their source at footnote 8. 42 influence analyses and interpretations” having been through many problems and attempts at their “resolution”. uudle 6. is less clear. it is very likely that the variety of activities once again will achieve: “a) qualities and transferable skills necessary for further study, employment, community involvement and other activities requiring: 1. the exercise of initiative, personal responsibility and accountability in both personal and group contexts; 2. working effectively with others; 3. decision-making in complex contexts.” however, “b) the ability to manage their own learning in changing circumstances, both within and outside the discipline and to select an appropriate program of further study” will likely require live client under supervision experience. finally, “c) behaviour consistent with academic integrity and social responsibility”66 should proceed from pbl. however higher-level professionalism is not fully achievable without live client work. higher education generally has been loath to enter into values education fearing that it would be tantamount to indoctrination.67 just as we do not tell people what to think we may shy away from telling them what to believe.68 we have no difficulty in suggesting rational arguments for doing good deeds. yet we still often take the view that another is 66 ibid 67 see petter op. cit. 68 carnegie op. cit. p. 132 ff. and see also shepard, k. “higher education for sustainability: seeking affective learning outcomes” 9 international journal of sustainability in higher education 87. (2008) 43 entitled to her own beliefs, values, attitudes and feelings.69 we are willing to teach them how to think and maybe we can do the same for learning how to value, feel and believe. similarly we are uneasy about trying to shape others’ feelings. in many professions the concern for commitment to professional norms has resulted in attempts to “teach” in the affective domain. in many law schools we are told professional conduct is taught just like any other law subject that includes a body of rules and underlying principles and required behaviours. in the legal profession, but perhaps less so for law schools, there is little doubt that we require lawyers to abide by ethical prescriptions and rules of conduct. 70 however, do we want to inculcate the qualities of: caring for others; compassion, a commitment to justice, equity and fairness; civility and respectfulness of others and the justice system; honesty and integrity and so on?71 the answer in carnegie and stuckey is yes. clearly experiential learning models including role-plays, simulation, pbl, and live client under supervision clinic are among the methods to succeed in order of increasing likelihood.72 69 see krathwohl, learning objectives in the affective domain op. cit.; also includes motivation, willingness to participate, openness to new ideas. 70 see: e.g., the law society of england and wales’ legal education and training review http://letr.org.uk/ and the work of the chief justice of ontario’s advisory committee on professionalism http://www.lsuc.on.ca/with.aspx?id=610; carnegie and stuckey op.cit. 71 “the university of sydney (2006), for example, suggests that: graduates of the faculty of veterinary science will hold personal values and beliefs consistent with their role as responsible members of local, national, international and professional communities. (e.g. protect the natural environment, maintain biodiversity and conserve endangered species).” shepard op. cit. at p. 92 72 the field of legal ethics is developing quickly and has evolved as a highly intellectual and demanding discipline. we do need to be able to think systematically and deeply about such matters. in the end, if we do not internalize the beliefs we are unlikely to commit to the behaviours with enthusiasm. 44 http://letr.org.uk/ http://www.lsuc.on.ca/with.aspx?id=610 as noted earlier, learning outcomes relating to: 1. lawyering skills education, 2. professionalism learning, 3. the ability to integrate the multiple spheres of learning, and 4. appreciation of the centrality of the influence and indeterminacy of context on the provision of legal services will only progress completely through the live client under supervision model. however, these goals can to some significant extent be achieved through the enhanced pbl model, especially if it is supplemented by simulation. i do not propose this for reasons expressed earlier. 73 rather the live client model coupled with pbl, both supplemented by strategically chosen and aligned learning and teaching methods, has the greatest chance to achieve these outcomes. the greatest challenge for live-client learning is organizing student learning so that it is sufficiently comprehensive when the time for programme completion has arrived. in the absence of supplementation by pbl, live client is very unlikely ever to cover the basic subject matter grounding even a minimalist is likely to describe as basic to a legal education. 73 see discussion infra 45 conclusion a modern legal education seeks to be a very sophisticated multi-dimensional, interdisciplinary venture that prepares graduates for a wide variety of career opportunities. curiously, many examples of it do not prepare graduates to be lawyers, just to be learner-lawyers.74 the ironies of the historical developments in clinical legal education ought not be allowed to slip by unmentioned. 75 the “clinical” method was of course the original method for legal education and training. lawyers learned from seniors. in the united states apprenticeship was abandoned in favour of law school.76 apprenticeship of course had to go: it created barriers to equal access to the profession77 and was vastly uneven in quality. it was also about to be supplanted by technology: the copyist work of articled clerks would no longer be required.78 oddly, there was little effort to save apprenticeship by improving it.79 langdell had already kindled the academic revolution and the access 74 see hall and kerrigan, op cit. at p. 28 quoting aaronson, m. “teaching problem solving lawyering: an exchange of ideas”, 11 clinical law review (2004-2005) at p. 485 75 see gold n., and plowden p., “clinical scholarship and the development of the global clinical movement”, in bloch, f. s., the global clinical movement, new york: oxford university press. (2011) 76 stevens r., law school: legal education in american from the 1850s to the 1980s, chapel hill: university of north carolina press. (1983) 77 delos rogest davis, only the second black lawyer in ontario, was unable to enter the profession for want of being able to find a principal to supervise his articles of clerkship. it took two acts of the legislature of the province of ontario to permit his entry to the profession, first as a solicitor in 1884 and later as a barrister in 1886. he was later appointed the british empire’s first black qc in 1910. 78 rowe w. v., “legal clinics and better trained lawyers – a necessity”, 11 ill. l. rev. 515 (1917) 79 in the early 1980s i served as director of british columbia’s bar admission program. one of its components was articling, or apprenticeship. i was able to persuade the members of the legal education committee to require the structured and detailed supervision of four skills activities followed by feedback. there was to be a written record of the student-lawyer interactions. i was summoned to visit one of the 46 seekers in the us founded evening and open entry law schools at egalitarian sites such as ymcas and private law offices. 80 apprenticeship has survived in canada, some of australia, in the united kingdom, and in many commonwealth countries. for all the reasons articles were originally abandoned, they remain under fire in australia and ontario has approved a pilot scheme that introduces an alternative to articles: a professional preparation programme of 16 weeks accompanied by a placement of equal duration.81 the rise of the clinical movement in the late 1960s and 1970s owed its momentum to many things including the famous clarion call of legal realist jerome frank, “why not a clinical lawyer school?” and all of the arguments about the failings of university legal education in developing professional capability. 82 more so, the movement owed its progress to the social movements in the united states as the struggles against racism and poverty took deep hold in the south and around the country in the form of the civil rights movement and president johnson’s “war on poverty”. richard nixon was indirectly to have his impact on the reform of legal education as the recognition that it was lawyers who facilitated the watergate debacle sunk in. the council on legal education for city’s largest law firms. the training partner and three others met me. i was seated at the doorway to the office with the lawyers arrayed in a semi-circle beside and in front of me. i was told that the firm was considering abandoning its training role if the governing body were to insist on structured practice activities with feedback. no doubt this was a blustery bluff; after all the articling students were the major source of new lawyer recruitment. the point of their disinterest in working to help students achieve specified learning goals did not escape the governing body’s leadership or me. 80 see stevens, op. cit. 81 http://www.lsuc.on.ca/pathways/, http://www.ryerson.ca/lawcentre/lawpracticeprogram.html 82 frank j., “why not a clinical lawyer school”?, 81 u. pa. l. rev. 385 (1933) 47 http://www.lsuc.on.ca/pathways/ http://www.ryerson.ca/lawcentre/lawpracticeprogram.html professional responsibility (clepr) funded legal clinics with human rights, civil liberties, poverty law and professionalism agendas. law schools became part of the social action of the day and clinics were the way to engage actively in them. over the ensuing fifty years we have seen a shift to a wide variety of clinics, concerns for corporate as well as governmental and citizen social responsibility. it was important to show that this public-spirited and important community activism had educational merits; and it had plenty! the legacy of clepr is rich and varied and, beyond clinical legal education, likely includes the vast work in professionalism, the legal profession and legal ethics. 83 finally, somewhere along the way the work of clinics and clinicians became more theoretical and conceptual. unsurprisingly clinicians were seeking a place of respect and importance within the academy and undertook to do important research in the wide range of realms that clinic touches. legal practice became the subject of study and it too was academicized. through this academicization scholars have emerged.84 a part of that scholarship includes the educationists’ contribution, with carnegie and stuckey serving as the primary synthesizers of clinical education. that short tour complete, we can summarize as follows: legal education reform has begun to focus firmly on the centrality of lawyering education founded on both academic 83 see e.g., legal ethics, hart publishing, oxford; the journal of the legal profession, university of alabama school of law, tuscaloosa; international journal of the legal profession, routledge, taylor and francis online, england and many books and scores of articles. 84 see gold and plowden op. cit. 48 and professional, practical bedrock. in part because we know more clearly what the desirable outcomes of a legal education are, clinic’s formerly marginal role in legal education is moving ineluctably to the central and guiding role. we are seeing a joining of the clinicalization and academicization of legal education! our current analyses of desired university and professional preparation outcomes, our greater clarity of purpose, is founded on a determined commitment to producing desirable professional results with the wherewithal of conceptual, theoretical, professional and methodological learning becoming much more firmly within our grasp. the discussion in this paper provides some insights into frameworks for understanding law school learning outcomes and devising ways towards their achievement. the academy, especially in the united states, but also elsewhere, has not been idle; indeed, there are signs that it is restive.85 the work of the global alliance for justice education, 85 following is a summary of recent developments in selected american jd programs. interested readers are encouraged to get the full information at the urls below: case western reserve university school of law, http://law.case.edu/academics/experientiallearning.aspx the casearc four-semester series of courses in year 1 and 2 introduce students to lawyering skills – legal research and writing, client counseling, transactional drafting and negotiation, settlement negotiation, court presentations. in the 4th semester, simulated legal problem are used to approximate the lawyer’s role and explore issues of professionalism and judgment. clinics, externships and research labs (providing research for real clients) are also available but not required. cuny law school, http://www.law.cuny.edu/academics/curriculum.html the law school requires (each semester of year 1 and in second semester of year 2) experiential lawyering seminars, integrating areas of legal doctrine with lawyering skills through use of simulations, role-plays, mock jury trials, mediations, arbitrations, etc. six competencies are assessed: professional responsibility, theoretic perspective, clinical judgment, communication (oral and written), legal reasoning, and management of effort. year 3 includes a required one or two semester (12-16 credits) faculty supervised, live client lawyering course (at an in-house clinic or in a field placement). 49 http://law.case.edu/academics/experientiallearning.aspx http://www.law.cuny.edu/academics/curriculum.html the international journal of clinical education, the commonwealth association for legal education, the european network for clinical legal education and many regional bodies86 have spread the learning and influenced the movement. recently there has been a flurry of curricular innovation that seeks to build on carnegie and stuckey. innovations include phasing learning and practice opportunities into the law student learning experience and include the use of multiple experiential (and other) methods.87 higher education accountability and quality assurance (qa) schemes such as ontario’s uudles, when mated with the results of studies such as carnegie and stuckey, among many other valuable sources, provide a series of learning targets that can be aimed at. new york university law school, http://www.law.nyu.edu/academics/lawyeringprogram/curriculum/index.htm year 1 includes a two-semester lawyering program that uses “a series of increasingly complex simulated exercises” aimed at developing lawyering skills and professionalism. students are introduced to legal interpretation, written advocacy and analysis, fact development, client counseling, a transactional negotiation for a client, an oral argument of a motion before a “judge”. northeastern university school of law, http://www.northeastern.edu/law/academics/curriculum/lssc/index.html the year 1 program, legal skills in social context,, introduces students to “legal research, objective and persuasive legal writing, client representation, crucial analysis and oral skills.” course is organized around small “law offices” in which students work through simulated problems to acquire skills. the “law office” also plans and executes a legal research project for a real “community-based or public service organization.” the law school also has a co-op jd program. washington and lee university school of law, http://law.wlu.edu/admissions/page.asp?pageid=311 year 3 is “entirely based on learning through engagement – combining practicum courses, practice simulations, client interactions, the formation of professional identity and the cultivation of practical skills.” it is designed to transition students to the practice of law and integrates “legal theory, legal doctrine, and the development of professional judgment ethical sensibilities…” it is based on the carnegie apprenticeships. 86 the united states based clinical legal education association, the association for canadian clinical legal education, and the irish clinical legal education association are three examples. 87 pbl, for example is cited by the legal education and training review (letr) in england wales as having a potentially large role to play. for the letr more generally and the array of very informative papers see http://letr.org.uk/ 50 http://www.law.nyu.edu/academics/lawyeringprogram/curriculum/index.htm http://www.northeastern.edu/law/academics/curriculum/lssc/index.html http://law.wlu.edu/admissions/page.asp?pageid=311 http://letr.org.uk/ similarly, both carnegie and stuckey, and other contributors that i have mentioned along the way, suggest some ways of accomplishing the desired results. the strategic selection of clinic as the overarching method is the likeliest choice to assure that the various rings of the target that encompass competent and professional practice as well as sound and sophisticated learning are all hit. 51 schedule 1: a concordance of the uudles, carnegie and stuckey uudles carnegie apprenticeships/tasks stuckey principles 1. depth and breadth of knowledge 1. cognitive apprenticeship adequate core knowledge/ understanding of the law. a) a developed knowledge and critical understanding of the key concepts, methodologies, current advances, theoretical approaches and assumptions in a discipline overall, as well as in a specialized area of a discipline b) a developed understanding of many of the major fields in a discipline, including, where appropriate, from an interdisciplinary perspective, and how the fields may intersect with fields in related disciplines c) a developed ability to: 1) gather, review, evaluate and interpret information; and 2) compare the merits of alternate hypotheses or creative options, relevant to one or more of the major fields in a discipline d) a developed, detailed knowledge of and experience in research in an area of the discipline e) developed critical thinking and analytical skills inside and outside the discipline f) the ability to apply learning from one or more areas outside the discipline a) learn the academic knowledge base b) habits of mind that are considered most important to the profession c) mastery of legal rules taught in year 1 d) research e) how to gather knowledge and bolster comprehension – skills – reading case like lawyer would – meta-lesson – peculiar nature of legal language at once ambiguous and precise (p. 64) f) moving back and forth between detached analysis and empathetic engagement a) jurisdiction, authority, procedures that initiate, develop, interpret, and apply the law, constitutional law and judicial review; b) regulatory and fiscal framework for business transactions and financial services: c) contract, tort, obligations, rights, and remedies, d) criminal law; e) legal concept of property; the protection, disposal, transmission of proprietary interests, f) equitable rights, titles and interests 2. knowledge of methodologies 2. and 3. cognitive/practice apprenticeships the intellectual and analytical skills required to: an understanding of methods of enquiry or creative activity, or both, in their primary area of study that enable students to: a) evaluate the appropriateness of different approaches to solving problems using wellestablished ideas and techniques; b) devise and sustain arguments or solve problems using these methods; and c) describe and comment upon particular aspects of current research or equivalent advanced scholarship. a) methodologies relate to the use of cognitive theory to develop theory of practice b) nature of expertise and how it is required c) able to articulate the conceptual models involved in important lawyering skills (interviewing, counseling, conducting research etc.) (p. 100/2, 116/18) a) apply methods and techniques to review, consolidate, extend and apply knowledge and understanding and to initiate and carry out projects; and b) critically evaluate arguments, assumptions, abstract concepts and data to make judgments and to frame appropriate questions to achieve a solution or identify a range of solutions to a problem. 53 3. application of knowledge 3. practice apprenticeship practical judgment and adequate professional skills a) the ability to review, present, and interpret quantitative and qualitative information to: i. develop lines of argument; ii. make sound judgments in accordance with major theories, concepts and methods of the subject(s) of study; iii. apply underlying concepts, principles, and techniques of analysis, both within and outside the discipline; iv. where appropriate use this knowledge in the creative process; and b) the ability to use a basic range of established techniques to: i. initiate and undertake critical evaluation of arguments, assumptions, abstract concepts and information; ii. propose solutions; iii. frame appropriate questions for the purpose of solving a problem; iv. solve a problem or create a new work; c) the ability to make critical use of scholarly reviews and primary sources a) analyze cases in role by looking at cases from perspectives of their clients/lawyers (p.56/7) b) capacity to engage in complex practice. c) enabling students to learn to learn. d) learn from experience. e) integrate analytical knowledge within ongoing practical contexts which are organized by narrative modes of thinking and often convey meaning through exemplary acts and cases. (p. 96/7) f) iterative mode of improving skills can be applied to wide variety of capacities, blending intellectual and practical – making feature of expert performance explicit for learners … (p. 99). a) the ability to advocate a case on behalf of others, and to participate in trials to the extent allowed upon admission to practice, b) effective use of current technologies and strategies to store, retrieve, and analyze information and to undertake factual and legal research, c) effective skills for client relationship management and knowledge of how to act if a client is dissatisfied with the advice or service provided. 54 4. communication skills 3. practice apprenticeship adequate professional skills … the ability to communicate information, arguments, and analyses accurately and reliably, orally and in writing, to a range of audiences a) lawyering skills: legal research and writing, interviewing, counseling, and negotiation. b) expert performance a) the application of techniques to communicat effectively with clients, colleagues, and members o other professions. b) the capacity to deal sensitively and effectively with clients, colleagues, and others from a range of social, economic, and ethnic backgrounds, identifying and responding positively and appropriately to issues of culture and disability that might affect communication techniques and influence a client’s objectives. 5. awareness of limits of knowledge 3. practice apprenticeship self-efficacy and adequate professional skills … an understanding of the limits to their own knowledge and ability and an appreciation of the uncertainty, ambiguity and limits to knowledge and how this might influence their analyses and interpretations. a) conceptual models involved in the important skills that define effective lawyering. a) the ability to manage personal workload and to manage efficiently, effectively, and concurrently a number of client matters, b) the ability to work effectively as a member of a team. c) capacity to recognize personal and professional strengths and weaknesses etc. (p. 77) 55 6. autonomy and professional capacity 3. professional identity/purpose apprenticeship and ethical/social apprenticeship professionalism a) qualities and transferable skills necessary for further study, employment, community involvement and other activities requiring: i. the exercise of initiative, personal responsibility and accountability in both personal and group contexts; ii. working effectively with others; iii. decision-making in complex contexts; b) the ability to manage their own learning in changing circumstances, both within and outside the discipline and to select an appropriate program of further study; and c) behaviour consistent with academic integrity and social responsibility a) purposes/attitudes guided by values for which the professional community is responsible b) public dimension professional life c) wide, ethically sensitive perspective on the technical knowledge and skill that law practice requires. d) skills, inclination, ethical standards, social roles, and responsibilities that mark the professional e) creating and participating in a responsible and effective professional community. f) able and willing to join an enterprise of public service. g) rules of conduct, “law of lawyering” and wider matters of morality and character h) individual and social justice i) integrity, consideration, civility and other aspects of professionalism. j)keep the analytical and the moral, the procedural and substantive in dialogue throughout learning process k) integrate not only knowledge and skill but the cognitive, practical and ethical-social facets of lawyering appropriate behaviors and integrity in a range of situations. a) the ability to recognize clients’ financial, professionals constraints and priorities b) an appreciations of the commercial environment of legal practice, including the market for legal service c) employment of risk management skills the ability to work effectively as a member of a team. graduates strive to seek justice. graduates foster respect for the rule of law. graduates embody honor, integrity, and fair play and are truthful and candid. graduates deal sensitively and effectively with diverse clients and colleagues. graduates nurture quality of life. graduates demonstrate self-reflection and lifelong learning skills. graduates demonstrate self-efficacy 56 57 reviewed article – clinic , the university and society lawzone: mapping unmet legal need richard owen, swansea university, uk abstract: mapping unmet legal need assists university law clinics plan activities to meet the needs of the communities they serve. this article, by looking at a project where students started mapping unmet legal need in their locality, will consider the pedagogical issues associated with identifying unmet legal need and how it might enable university law clinics to be better embedded into their local communities by considering aspects of physical and human geography when considering injustice. it will also look at exiting research methodologies in this area and how mapping unmet legal need can develop students’ empirical research skills. the article also assesses the project’s aims to develop attributes such as entrepreneurship, as well utilising teaching practices such as visualisation to enable students to think spatially to perceive and understand social inequalities more clearly. it will argue that involving students in mapping unmet legal need will help them make those services more accessible; devise holistic solutions to clients’ problems; and enable them to work more effectively with other disciplines to both their own and their clients’ benefit. there is a strong tradition within clinical legal education of advocating that clinics be embedded in their local communities. there are a number of related theories which reflect this idea such as rebellious lawyering: empowering clients through grassroots, community based advocacy in low income communities, facilitated by lawyers, to bring about meaningful social change; and client-centred lawyering: the idea that clients should be the primary decision-maker in determining the direction of their legal case or transaction, whereas their advisers should maintain the appearance of neutrality and be as objective as possible. both theories are united in their belief that the lawyer, and by extension the law clinic, must be strongly embedded in their local communities and serving their legal needs. but what are those needs, when can they be defined as legal needs, and why is this of interest? if there is unmet legal need that should be of concern to us as citizens, as it undermines the rule of law; it should be of concern to the legal profession as it shows their services are inaccessible to a section of the public; and it should be of concern to policymakers as it reveals that a section of the public are unable to access the advice they need in order to allow policies to achieve their objectives. there is no one who wants to visit a law firm for its own sake. clients instruct lawyers because they are viewed as the agents who can arrange their divorce, recover their debts, obtain their welfare benefits, etc. in other words, the demand for lawyers does not exist independently of the ends the client is seeking to achieve. there is some evidence of failure on the part of the legal profession in england and wales to identify and address their clients’ needs. some groups seem to prefer to avoid lawyers if they possibly can. a survey of small businesses in england and wales found that almost 50% would use a lawyer only as a last resort and only 13% found them to be cost effective.[footnoteref:1] representatives of small businesses have also talked of a ‘considerable failure’ by lawyers to meet their needs.[footnoteref:2] [1: robert blackburn, john kitching and george saridakis, ‘the legal needs of small businesses: an analysis of small businesses’ experience of legal problems, capacity and attitudes’ (kingston university for the legal services board, 2015). ] [2: john hyde, ‘small businesses say lawyers failing to meet their needs’ the law society gazette (london 30 march 2016) http://www.lawgazette.co.uk/news/small-businesses-say-lawyers-failing-to-meet-their-needs/5054452.fullarticle accessed 2 august 2016] although there is a large body of literature on legal need there have been methodological problems in defining what is meant by the term. the early literature from the 1930s to 1970s presented survey respondents with problems to which there were potential legal solutions. if respondents had experienced the problem but had not received the assistance of a lawyer in resolving it then the problem was classed as an unmet legal need.[footnoteref:3] [3: pascoe pleasence and others, ‘local legal need’ (research paper 7 legal services research centre, january 2001, london).] the drawback with this approach is that it privileges legal solutions over all other possible outcomes. clients might want to rationally avoid legal solutions to their problems. for example, if your line manager is harassing you at work you may take the conscious decision to avoid the problem and move to another job thereby avoiding the risk, the stigma, stress, and uncertainty of taking the case to an employment tribunal. avoiding the issue as a legal problem could be the most rational, advantageous solution for that particular client. whereas another client, faced with similar facts but lacking the same mobility, will have no choice but to face up to it as a legal problem. since the 1970s the methodology has become more sophisticated and focuses more on the ends that the client wishes to achieve. in order to prevent privileging legal solutions over other types of resolution the focus is now on problems where a legal solution is just one out of a number of possible outcomes with greater emphasis on what the client wants.[footnoteref:4] [4: hazel genn, paths to justice: what people do and think about going to law (hart publishing 1999). see also pleasance and others (n 3) paras. 7 – 8. ] mapping a community can assist in the process of identifying unmet legal need as particular groups are likely to encounter legal problems of a particular type.[footnoteref:5] the more socio-economic data that is available about the community the clinic serves the better the clinic can prepare to meet the needs of that community, as data of a very large size, which is often referred to as big data, can help predict the problems they are likely to face. not only are particular groups likely to face particular problems but also they are likely to face clusters of problems so big data is also likely to predict their correlation and interrelationship, as well.[footnoteref:6] [5: pascoe pleasance and others, 'multiple justiciable problems: common clusters and their social and demographic indicators' [2004] 1(2) journal of empirical legal studies 301] [6: pleasance and others (2004) (n 5)] big data and its increased availability facilitates greater predictive modelling of a law clinic’s needs. the availability of small area data means there is an abundance of data at the level of local council ward, which further increases the opportunities to target their services efficiently and effectively in an evidence-based way. however, there are limits to big data’s efficacy. predictors can vary between geographical locations.[footnoteref:7] some locations may simply buck the trend whilst it is possible to have ‘postcode deprivation’: a tiny pocket of deprivation surrounded by relatively more affluent neighbourhoods.[footnoteref:8] variation in the prevalence of legal problems between different areas has also been found in other common law jurisdictions.[footnoteref:9] [7: pleasance and others (2004) (n 5)] [8: pleasance and others (2001) (n 3) ] [9: christine coumarelos and others, legal australia-wide survey: legal need in australia (law and justice foundation of nsw, 2012) xiv] law clinics, therefore, need to balance the predictable whilst being simultaneously sensitive to the possibility of the statistically unpredictable in their communities. they can achieve this by being not just closely involved in but part of their local communities in ways that have been advocated by the rebellious lawyering school. this close engagement heightens their awareness of those myriad contextual issues, such as crime rates, affecting their communities which may or may not mean that they deviate from the statistical norm or come to realise that there are micro pockets of relative deprivation in otherwise more relatively affluent areas. in this article, i will examine a project which started in the essex law clinic, which is part of the university of essex, in the 2014-15 academic year called lawzone colchester. this is a long-term project that seeks to map unmet legal need in the town and eventually, it is planned, be rolled out to map unmet legal need throughout the county of essex in the east of england. the essex law clinic was established in 2008, but in 2014 a decision was taken to expand its activities. one member of staff was recruited to be dedicated to clinical activities. he was supported by the students’ union advice centre who administered the clinic, amongst other things, they took initial inquiries from potential clients and assessed whether they would be suitable cases for the clinic’s students and managed files. the clinic had a few projects, but lawzone was intended to support the project that involved face to face interviews with clients. this project involved an initial forty-five-minute information gathering interview with clients followed by an advice letter providing initial advice and assistance to them. the interview and advice letters were either supervised by the law clinic director or a member of the local legal profession. starting in the 2014/15 academic year a maximum of twenty students could engage in this type of clinical activity on an assessed basis although more students could be assessed on other clinic activities. there were also opportunities for approximately thirty more students to be involved on an extracurricular basis for this clinical activity. again, more students were involved on an extracurricular basis for other clinical activities. it was decided that the student advisors should be involved in the clinic’s expansion as much as possible. one of the reasons behind this was to give students experience of all facets of the clinic’s activities such as strategic and business planning. the greater the degree of student autonomy over the expansion plans the more authentic it became as an exercise in strategic and business planning. the desire to introduce this type of planning was motivated by several factors. firstly, to raise students’ awareness of the need to work in an interdisciplinary way to best meet the complex and multifaceted needs of clients. legal needs are often connected to non-legal needs, for example poor mental or physical health can lead to consumer issues if earning capacity is affected as only cheaper goods and services can be afforded, so an awareness of how other disciplines work will enhance students’ effectiveness as clinicians. secondly, there is evidence that legal students need to acquire business skills to enhance their employability. the solicitors’ disciplinary tribunal has claimed that some solicitors ‘do not have the rounded set of skills to run a business’.[footnoteref:10] the leaders of the largest uk law firms say the skills future lawyers need will increasingly include business skills such as project management and financial acumen.[footnoteref:11] thirdly, part of the liberalisation of legal services in the uk brought about by the legal services act 2007 has been the creation of alternative business structures (abss). this allows non-lawyers to manage or have ownership-type interest in legal firms. the only restriction on the services an abs can provide is that it must not engage in any activity which conflicts with a lawyer’s role. greater business acumen will allow law graduates to compete more successfully in such an environment. [10: neil rose ‘number of solicitors appearing before sdt on the up amid warning over poor business skills’ legal futures (10 june 2016) http://www.legalfutures.co.uk/latest-news/number-solicitors-appearing-sdt-amid-warning-poor-business-skills accessed 4 august 2016 ] [11: grania langdon-down, ‘well-targeted training will give solicitors the skills to succeed’ the law society gazette (london 4 november 2010) http://www.lawgazette.co.uk/analysis/well-targeted-training-will-give-solicitors-the-skills-to-succeed/57894.fullarticle accessed 4 august 2016] it also seemed right in principle to involve students in the clinic’s development to ensure that it was meeting their career needs and aspirations. the students were an important resource in the clinic’s development bringing perspectives and skills that would otherwise be lacking. there were significant cuts to civil legal aid in the united kingdom in april 2013 as a result of the legal aid, sentencing and punishment of offenders act 2012 (laspo) in both the scope of assistance and the level of funding. divorce, child contact, welfare benefits, employment, clinical negligence, and housing law cases are now outside the scope of civil legal aid unless there are exceptional circumstances. this has created fresh challenges for access to justice and created greater pressure for innovation in the delivery of legal services, particularly in the fields of social welfare and family law. the lord chief justice of england and wales, lord thomas of cwmgiedd, has said that: ‘there is a vital need for young people to be involved in reshaping the civil justice system in light of the cuts to civil legal aid in april 2013.’[footnoteref:12] [12: the right hon. the lord thomas of cwmgiedd, ‘reshaping justice’ (lecture delivered to justice on 3rd march 2014 at para. 21.) https://www.judiciary.gov.uk/wp-content/uploads/jco/documents/speeches/lcj-speech-reshaping-justice.pdf accessed on 22nd october 2015] lord thomas seems to suggest that young people, as digital natives, will respond to the challenges of providing access to justice in fresh ways which will be innovative in the use of information technology. it is not just the affordability of legal services that restricts access to justice. there are other factors at play such as geographical access. currently there is an extensive court closure programme currently being undertaken in england and wales, which means that, in some areas, people will not be geographically proximate to a court.[footnoteref:13] again, an ability to innovate in the use of information technology will be a particularly useful skill in meeting this challenge, as well. [13: ministry of justice and hm courts and tribunals service, ‘response to the proposal on the provision of court and tribunal estate in england and wales’ response published on 11 february 2016 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/499518/national-consultation-document.pdf accessed 4 august 2016 ] typically, surveys of unmet legal need have been large-scale.[footnoteref:14] however, a number have reported on the possibility of small-scale local variations. this article will aim to put the literature into the context by looking at the communities the essex law clinic serves, particularly the greenstead and hythe areas of colchester where many students live, as well as the pedagogical issues involved in clinic students assessing unmet legal needs. [14: there have been at least 26 large-scale surveys of the public’s experience in the last twenty years in at least fifteen jurisdictions: pascoe pleasence, nigel balmer and rebecca sandefur, paths to justice: a past, present and future roadmap report prepared under a grant from the nuffield foundation (ucl centre for empirical legal studies, august 2013), 3 ] in terms of the methodology used, a group of eight undergraduate students in the 2013/14 academic year initially identified all legal advice providers within the boundaries of colchester borough council by pinning them on a map. the pins were colour coded way to denote whether the provider was a legal firm, on the one hand, or a not for profit provider, on the other. this was a start but more significant progress was made in succeeding academic years. mapping unmet legal need, and methodologies for approaching the topic, was included as part of the induction programme for the twenty undergraduate students who were assessed for this type of clinical activity, and classroom discussions reflected on approaches to this issue. in the 2015/16 academic year one student adviser digitised this map, and added other locations which he felt were of actual or potential importance to the clinic’s clients. future generations of students can make further additions to this digital map as further work is undertaken, so it is a living document. a review of files since the clinic’s inception in 2008 was undertaken recording the subject matter of each inquiry. all the files relating to face to face interviews were recorded: the clinic runs a number of other projects on prison law, miscarriage of justice and various contract research projects but these were not included in the review. the reason for their exclusion was that clients from these other projects are not drawn from the local area, and one of the reasons behind embarking on the project was to become more knowledgeable about the legal needs of the local vicinity. a student adviser initially evaluated the data before the author undertook a further evaluation. in order to provide guidance to students embarking on research into unmet legal need there had to be some definition of what was meant by the term. the definition that has been used is to identify whether there is any statistical or other evidence which suggests that people in the community are unable, or are encountering obstacles, in accessing advisory services to assist with problems where a legal solution may be one possible option in its resolution. in part one the possible pedagogical benefits of mapping legal need in a clinical legal environment is examined. in part two the project itself is evaluated. in part three the issues surrounding the educational management of a long-term project where different cohorts of students will work on the project over time is considered. part one: pedagogical benefits of mapping legal need in a clinical environment there are good pedagogical reasons for teaching clinical students about legal need in their communities. at the most fundamental level it partially fulfils the regulatory requirements for law degrees in the united kingdom. the quality assurance agency for higher education (qaa) is the independent body entrusted with monitoring and advising on standards and quality in uk higher education. its uk quality code for higher education aims to give all higher education providers a shared starting point for setting, describing and assuring the academic standards of their awards and programmes. the subject benchmark: law is the qaa document which defines what can be expected of a graduate on a legal studies programme, in terms of what they might know, do and understand at the end of their studies.[footnoteref:15] paragraph 2.4 (vii) of the benchmark statement provides that law graduates must ‘demonstrate ability to work with a range of data, including textual, numerical and statistical’. mapping legal need meets all aspects of paragraph 2.4 as it requires the need to be aware of how the wider societal context affects qualitative interpretation of data; the need to process big data together with an appreciation of its limits in terms of predicting legal need; and a need to understand how numerical information generated by clinic users relates to other numerical and statistical information. [15: quality assurance agency (qaa), subject benchmark statement law (qaa, july 2015) ] legal process individualises problems. providing students with an overview of recurring problems in the clinic gives them a framework to consider issues of justice and lawyering. it incorporates a socio-legal dimension into their clinical legal education; it develops their quantitative and qualitative research skills as they need to be able not only to process big data but also interpret statistical evidence particularly by examining whether there are inherent biases in the collection of data; it develops their entrepreneurial skills as they seek to devise innovative methods to their community’s challenges; and it will make them think of the need to work in an interdisciplinary way in order to devise solutions to the complex, multifaceted and interconnected problems that communities face. there can be other socio-legal dimensions. it is an opportunity to reconceptualise the law and legal proceedings with students being encouraged to think about clients’ wellbeing more generally, as well as seeing issues more clearly from a client’s and potential client’s perspective. a legal intervention can be seen as possible evidence that an opportunity to address wellbeing has been missed in the past. students can be taught to see the need for intervention of legal process as a type of failure. they can rewind the client’s problem and return to its origin. can they then identify any form of earlier intervention that would have prevented the problem developing to the point where the stress, expense, delay, and risk of legal proceedings could have been avoided? to answer this question they will need to think holistically and draw on the experiences of neighbouring disciplines. it also develops attributes not normally associated with legal education. for example, it develops their spatial thinking, and to think in a multi-dimensional way when it comes to space. spatial thinking has been defined as consisting of three elements: ‘concepts of space, tools of representation, and processes of reasoning. ‘[footnoteref:16] although spatial thinking is a skill which pervades all disciplines, it develops in the context of specific disciplines and it ‘becomes transformed and refined through training and extensive practice.’[footnoteref:17] a person is spatially literate when they ‘can match the norms for what should be known about space, representation, and reasoning.’[footnoteref:18] [16: committee on the support for the thinking spatially, committee on geography, national research council learning to think spatially: gis as a support system in the k-12 curriculum. (national academies press, 2005) ix] [17: n 16, 5] [18: n 16, 18] spatial thinking, therefore, is a vital skill when it comes to mapping unmet legal need. it will assist students in identifying areas which buck the trend or ‘postcode deprivation’ when clinic data does not match legal need based on predictive modelling. they also need to think as to what space it is that their community occupies. there can be variable geometry when it comes to defining the catchment area of a clinic. are the boundaries drawn according to neighbouring streets, council ward, city limits, interest group, subject matter, cyberspace or by other criteria to be defined by the students themselves? it is not just physical space which can be spatialised. are there needs of groups which could be defined by sex, race, religion, age, disability, social class, sexual orientation, nationality that the clinic is failing to meet? whilst the initial manifestation of these groups will be non-spatial in nature, thinking about them spatially can bring new reasoning processes to bear, which will assist in the resolution of problems. [footnoteref:19] [19: n 16, 31] a study of local unmet legal need will not only develop students’ intellectual skills but also their professional skills. it is a particularly suitable vehicle to explore issues surrounding client care, and how advising involves a partnership between lawyer and client. in seeking to identify unmet legal need it is necessary to develop the service with the active involvement of the client and the community. this illustrates to students that the service is not something that is done to the client, but should be a product of a partnership: the outcome of research into the client base and discussions between clients and community groups. it should give insight into business planning. technological innovation has been recognised as creating the potential for realising ‘latent demand’.[footnoteref:20] digitising patterns of demand for legal services will create a database which will help identify gaps in the market where inhabitants may not have traditionally found legal services to be accessible. [20: richard susskind and daniel susskind, the future of the professions: how technology will transform the work of human experts (oxford university press, 2015) 133 134] becoming knowledgeable about the client base and their socio-economic characteristics can also assist business planning as to a certain extent it can assist in the prediction of clients’ needs. whilst the limits of the ability to do this are discussed above, it is still the best starting point for planning the clinic’s future activities. if it can be seen that a particular problem is bedevilling a community that might condition the clinic’s activities, as it offers the opportunity of targeting resources and strategising more effectively. for example, the clinic may decide to alter its activities and instead of giving individual assistance in a certain subject area it might decide it will have greater impact with more efficient use of resources if it focuses on public legal education instead. to assess legal needs effectively requires a study of all facets of a community to gain greater insight into the causes of problems which face that community, and to imagine solutions to them. this includes assessing its social capital: the links, shared values and understandings in society that enable individuals and groups to trust each other and so work together,[footnoteref:21] and gauging the community’s resilience: utilising available resources to withstand, respond to and recover from adversity.[footnoteref:22] potential partners need to be identified who may assist in the resolution, or even the prevention, of these problems. [21: oecd insights: human capital, ‘what is social capital?’ < http://www.oecd.org/insights/37966934.pdf> (accessed on 24th april 2017)] [22: rand corporation, ‘community resilience’ < http://www.rand.org/topics/community-resilience.html> (accessed on 24th april 2017)] the identification of potential partners is a welcome broadening of law students’ education. it demonstrates that law is not the only tool in the toolbox. it also gives them experience of working with people from other disciplines. interdisciplinary working is not only right in principle because of its holistic approach; it also enhances the students’ employability. scholars who have investigated the future for legal services have identified the need for them to diversify and become increasingly multidisciplinary.[footnoteref:23] this will require meaningful engagement with neighbouring disciplines such as management science and business studies, but other areas too such as geography.[footnoteref:24] [23: richard susskind, tomorrow’s lawyers: an introduction to your future (oxford university press, 2013) 113] [24: n 23] in the united kingdom the need for lawyers to work increasingly with other professions, such as accountants and management consultants, has been facilitated by regulatory change as a result of the introduction of abss. working with other groups will give students experience of working with non-lawyers providing insight into their working methods which is a transferable skill of increasing importance in the legal workplace. part two: mapping lawzone in this section, the issues arising from the experience of running a long-term project currently called lawzone colchester but eventually, it is planned, evolving into lawzone essex will be assessed. the historic town of colchester, which is the united kingdom’s oldest recorded town, has a two-tier local authority structure and falls within the boundaries of colchester borough council and essex county council. initially, the project was thought necessary because this part of the county of essex has a weak legal identity. the local law society is the suffolk and north essex law society so its boundaries are not coterminous with either the borough or county boundaries with its remit reaching into the neighbouring county of suffolk. the institutional structure does not exist, therefore, to consider issues, which might affect the county uniquely or with a particular intensity. it was thought that a project of this nature had the potential to influence policy making at the borough and county level through the accumulation of anonymised socio-economic data from clinic clients and the mapping of unmet legal need. whilst there have been a number of large-scale surveys which have increased understanding of unmet legal need, it is recognised that there are gaps in the evidence base.[footnoteref:25] [25: n 14, 51] this project is an opportunity to give students experience of measuring impact in quantifiable and qualitative ways. legal needs surveys have been shown to have impact and their use and impact has varied as a response to regulatory, economic and political change. there is evidence that they have influenced legal aid policy in the united kingdom.[footnoteref:26] however, since the civil legal aid cuts of april 2013, and the liberalisation of legal services, they have also had an impact on understanding of public justice, as well as private and not for profit market service provision.[footnoteref:27] [26: n 14, 42] [27: n 14, 44] when commencing a project of this sort the students can be given a large degree of latitude as to what they explore because there is so much data that could be mined which will potentially be useful. there is a balance to be struck between students needing support and guidance, on the one hand, and allowing the space they need to imagine the future of justice and legal services in relation to their clinic, on the other, if lord thomas’s vision of young people shaping the civil justice system is to be realised, and we are to receive the benefits of their fresh perspectives as a result of their digital nativity. the project started low tech with a group of students pinning the location of legal advisers in the town of colchester on a paper map with different colours being used depending on whether or not it was a legal firm or a free advice provider. this map was then digitised. the exercise was then extended into the mapping of social infrastructure of the town. various additions were made to it such as an emergency night shelter and railway stations. the more this is mapped the easier it will be to assess the town’s resilience. the inclusion of railway stations produced an interesting result. colchester is approximately fifty minutes by express train from london liverpool street station, which is in the heart of the city of london (the financial district of the capital) where there are a great number of well-paid jobs in financial services. hythe station is the closest to the university, and therefore essex law clinic, and is in a relatively deprived socio-economic area compared to wivenhoe station, which is the next closest to the university and is in a more prosperous area. the students had mapped the stations as part of the mapping of the social infrastructure of the clinic’s catchment area to help assess the community’s amenities. however, the author could point out to the students that this is possibly an example of inequality being designed into the environment as there are a greater number of direct trains to london liverpool street from wivenhoe than from hythe. this is also hard to understand as the two stations are on the same railway line. easier access to london liverpool street means easier access to the high paying jobs in financial services. hythe residents will have their journey time increased by often having to change trains with on costs, such as extra child minding fees, often arising from this. in this way, it was possible to model to the students what was required. the difference in the train service meant it was possible to consider whether there was a ‘power geometry’ i.e. ‘relations to [the] flow and interconnections’ between different social groups and different individuals.[footnoteref:28] why should wivenhoe have so many more direct trains to london than hythe when the two stations are on the same railway line? is it because the people wivenhoe are better organised? or is it because of some other reason? [28: doreen massey, ‘a global sense of place’ marxism today (june 1991)] this example was also used to communicate the concept of social capital/infrastructure and how concepts such as spatial injustice may apply to their findings. it could be used to argue that inequality can be geographically constructed. the review of files since the clinic’s inception found the following: table one: percentage of essex law clinic clients by subject matter since 2008 the percentage of landlord and tenant disputes (24.44%) is not surprising. a high percentage of the clinic’s clients are students who frequently live in rented property and therefore more likely to encounter problems with landlords. if you also consider problems students also encounter from time to time with letting agents, which came within the category of property disputes, and were 13.88% of the clinic’s casework, then it can be seen that a total of 38.32% of cases were meeting the legal needs of predominantly students and some university staff. whilst landlord and tenant cases make up a significant portion of the clinic’s caseload it is likely that the clinic is not meeting the legal needs of a substantial part of the population it serves. most housing cases are referred to the clinic by the university’s students’ union and therefore the students are clients. the law society of england and wales have produced an interactive map which found a lack of state funded housing advice in england and wales as a result of the civil legal aid cuts in april 2013.[footnoteref:29] [29: the law society, ‘legal aid deserts campaign’ (briefing for local law societies) august 2016] location of essex law clinic figure one: the law society’s interactive map showing the county of suffolk as a legal aid housing advice red spot where no state funded legal advice is available the map was useful in getting students to visualise the varied and scarce distribution of legally aided housing advice. the legal aid area to the immediate north of the clinic, suffolk, was a red spot with no legal aided housing advice available. colchester is marginally better served as the charity, shelter, provides free housing advice in the town; however, shelter has had its own funding also cut which affects the volume of cases it can serve. this strongly suggests that there is demand in the wider community for free housing advice which the clinic is currently not able to meet. it is just possible that all we were seeing was the clinic staff and student advisers’ cosmology, i.e. how they make sense of the world based on their physical, social, spiritual and mental world, and failing to see a wider cosmology in respect of housing need in the clinic’s own local community. in this cosmology the greenstead and hythe areas of colchester had housing advice needs dominated by their undoubtedly large student population. however, ‘the cosmology of “only one narrative” obliterates the multiplicities, the contemporaneous heterogeneities of space’.[footnoteref:30] within greenstead and hythe there would be those [30: doreen massey, for space (sage publications ltd 2005) 5] with different cosmologies, and who would not imagine the place as being dominated by the university with the need to service its students’ housing needs. they may not even give the university much thought at all. they will have their own cosmologies, which do not involve working or studying at the university, but involve an altogether separate existence. this is the ‘contemporaneous heterogeneities’ massey is referring to. the danger in just seeing the headline figure of 24.44% of the clinic’s caseload being landlord and tenant cases is that it can give a misleading impression as to how well or otherwise the clinic is meeting the local community’s housing advice needs. it would seem that the clinic is doing well in meeting these needs in an area where housing advice is sorely needed. however, when the data is further examined then it can be seen that most of the clients in landlord and tenant cases had some connection with the university whether as students or, occasionally, staff. they were more likely to be aware of the clinic and its services through their proximity to it on campus, but ‘contemporaneous heterogeneities’ within greenstead and hythe may mean that there are other communities co-located within the same locality who are not getting their housing advice needs met. the problems the clinic was encountering tended to be with issues such as representations made prior to letting properties, return of deposits, and properties in multiple occupation. these are problems that could be predicted from a client base involving largely students. it could be that clients with a different background might have other problems such as serious repairs, etc. the importance of this is to ensure that the data collected from clients can distinguish between the university’s students and staff, on the one hand, and members of the general public not connected to the university, on the other. only then will it be possible to assess if the clinic is addressing the needs of all parts of the locality, which will prevent ‘only one narrative’ dominating thinking. this was a good topic from a pedagogic perspective as it was possible to flip the normal question. instead of asking what effect the students have or could have on the community the question was reversed and the students were asked what effect they might be having on the community. the next most numerically significant area is in relationship breakdown, which comprised 17.22% of all cases; however, if child contact cases are also included which are 8.33% of all cases this makes a total of 25.55%. the scope of legal aid funding in the united kingdom for relationship breakdown has been significantly reduced in scope since the cuts to civil legal aid spending were introduced in april 2013. this will explain the increase in the most recent periods of the clinic’s operation. the increase in the volume of relationship breakdown cases is strongly suggestive of unmet legal need. the essex law clinic only provides initial advice and assistance in such cases. clients are frequently looking for on-going legal support which the clinic is unable to provide beyond signposting further avenues of advice and assistance. the effect that the civil legal aid cuts had on the levels of relationship breakdown cases coming to the clinic illustrates the need not only to map the clinic’s activities by place, but to map temporally as well. this has been done by colour coding, by year, types of inquiries onto the map although in housing cases this has been done seasonally to reflect periods when undergraduate students are on vacation. mapping temporally showed a different pattern of advice needs before the legal aid cuts. they increased demand for relationship breakdown advice, but is this a spike or has demand in this area reached a new plateau? the immediate period after the cuts could have produced a shock which causes a spike in demand, but then as technological innovations, new business models, new advice providers enter the market the situation may ease and could change over time. it will only be possible to assess this if demand is mapped temporally in addition to mapping by place. there has only been a slight increase in employment and equality cases in recent years, but this is probably evidence of unmet legal need of a different sort. fees were introduced for bringing cases to employment tribunals for the first time in july 2013 except for those who could claim a waiver or reduced fee on the grounds of limited wealth or low income. the introduction of employment tribunal fees saw a sharp decrease in the number of claims being taken to a tribunal in the first year with the ministry of justice recording a 70% reduction.[footnoteref:31] the fees were introduced as part of a change in policy whereby the government argued that the users of the tribunal system should pay, and it came after employers’ organisations had long argued that there should be some restriction on the bringing of weak or vexatious claims. the fact that the demand for employment and equality advice has risen, despite such a decrease in claims being made, suggests that clients are still encountering problems in their relationship with their employers but now find it hard to access systems of redress. [31: ministry of justice, tribunal statistics quarterly april – june 2014 (11 september 2014), 7 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/352914/tribunal-statistics-quarterly-april-june-2014.pdf accessed 15 august 2016 ] recording the number of employment and equality cases provided further evidence that mapping unmet legal need has to be a collaborative effort between tutor and students. between 2008 and 2016 the clinic did not receive a single inquiry for advice on an equality issue from the lgbt+ community as a result of clients attending face-to-face interviews. however, the clinic is involved in another project advising on prison law with the prisoners’ advice service where 10% of all inquiries are requests for advice on aspects of equality law from the lgbt+ community, which statistically seems more in line with what could be predicted given the size of the lgbt+ community as a proportion of the general population. this does raise issues about unmet legal need and the lgbt+ community. it could be argued that it is evidence that their needs are well met, and they have no need to access university law clinics. stonewall is an organisation which lobbies and campaigns on issues of relevance to the lgbt+ community. they operate a telephone information helpline and will also give advice via email. assistance can also be accessed from the equality advisory support service (eass) discrimination helpline. the service provides advice on discrimination in employment and services and although it is possible to contact the service directly, they prefer referrals from advisory organisations. assistance is also available from the equality and human rights commission’s website, and the normal channels for those looking for equality advice such as citizens advice bureaux, law centres, the free representation unit (for those on low income), etc. whilst it is possible that members of the lgbt+ community have a preference for using a service dedicated to their needs this is only provided nationally by stonewall. the other services such as the eass and the equality and human rights commission are services that deal with discrimination in relation to all protected characteristics under the equality act 2010, and the rest are general advisory services. despite the excellent work all these services do it seems unlikely that they will completely meet the legal needs of potential lgbt+ clients for the essex law clinic. it may be that the clinic is not perceived as being sufficiently welcoming to this particular community. queen mary, university of london has established a dedicated clinic, pink law, which through its marketing makes a public commitment to offer a welcoming and confidential environment to the lgbt+ community.[footnoteref:32] previous studies of unmet legal need have concluded that a number of strategies are required to combat it including tailoring services for specific problems and for specific demographic groups.[footnoteref:33] it might be that the essex law clinic, and other university law clinics, will not respond to the legal needs of this community unless they clearly identify themselves as catering for the community’s needs, which means that the marketing and presentation of clinics should be an integral part of students’ legal education. [32: queen mary university of london, ‘pink law’ http://www.lac.qmul.ac.uk/advice/pink/index.html accessed 16 august 2016] [33: n 9, xxi] negligence cases, mainly personal injury cases, constitute 3.88% of the clinic’s caseload, which is small. litigation is a reserved activity in england and wales so only members of the legal profession can undertake it, and it is not permissible for student advisers to do so. therefore, the clinic only gives preliminary advice in such cases. the 3.33% of cases of the clinic’s caseload that relate to neighbourhood disputes seems low on a statistical modelling basis, i.e. the numbers of that type of case that could be expected using crime rates as a proxy for legal need. many of the clinic’s clients come from the greenstead area of the st andrew’s council ward. this is an area of relative social deprivation. high levels of deprivation are a predictor of civil justice problems with, on a statistical modelling basis, 25% greater chance of neighbourhood disputes.[footnoteref:34] the clinic’s clients do not all come from this area and many come from more economically affluent areas; it is also possible that there is a local variation and the area does not accord with statistical modelling patterns. [34: vicky kemp and others, 'the problems of everyday life: crime and the civil and social justice survey' (briefing 5) [2007] centre for crime and justice studies, 3] however, this seems unlikely. data is collected on a council ward basis. looking at the accompanying map, if the harwich road is seen a boundary and the area north east and north of greenstead but within the st andrew’s ward is excluded and the hythe area, i.e. that area to the south east of greenstead bound by the river and roads, is included then the crime rate is higher than that suggested by the figures at ward level indicate, which makes the caseload for neighbourhood disputes seem even lower than it should be on a predictive statistical basis. the area of greenstead and the part of hythe bound by the river could be a ‘social space’, i.e. a space which is different from the physical space which planners normally use.[footnoteref:35] ‘social space’ has to incorporate both the geographical and sociological imaginations and is an area with a ‘different attractive power’.[footnoteref:36] mapping unmet legal need can therefore lead to a form of variable geometry: redefining boundaries of communities according to their ‘attractive power’. redefining the boundary of the st andrews ward not only brings the challenges that area faces into sharper focus but also offers the opportunity of embedding student advisers more deeply into the community as it is an area with a high density of student population. [35: david harvey, social justice and the city (revised edition, university of georgia press, 2009), 35] [36: n 35] this form of spatial analysis requires an interdisciplinary set of skills on the part of the students. they need the space-time analytical skills of a geographer and the personality trait analytical skills of the sociologist. figure two: map of the st andrew’s ward, colchester bordered in green. the red hatched area is that part of st andrew’s and harbour wards where the crime rate was differentiated from data collected at ward level. it is also an area where large numbers of students live. the 2.22% of the clinic’s caseload which has assisted the legal needs of small businesses is also low even when taking into account that small businesses are known to be a hard to reach group for legal services generally. as previously discussed, there is a high student density in the greenstead area and that part of hythe which hatched in red in figure one. many of these will be undergraduate students who will not be resident for large parts of the year during vacations, etc. this in turn has implications for the economic development of the community. it is more difficult to establish a shop, for example, in an area where population numbers are not stable, and significantly decrease for lengthy periods of the calendar year. it also has implications for business advice to start ups in the area. the percentage of caseload at 0.58% that is devoted to welfare benefits work seems, at first glance, shockingly low for a clinic operating in an area of relative deprivation. however, the clinic has only recently marketed itself as having expertise in welfare benefits work. there are also issues in relation to the delivery of the service as there is a citizens advice bureau located in colchester town centre. this is a well-known and well-established brand for benefits advice work. again, meeting any unmet need probably means thinking strategically about the service offered. the service offered by bureaux varies, the essex law clinic could probably most effectively address unmet legal need in the area by taking referrals from citizens advice to do representation work at first-tier tribunals, which citizens advice tends not to do concentrating instead on initial advice and assistance. the review of the clinic’s clients found a spatial injustice by group, as since its inception in 2008 it has only advised one retired person and, therefore, it appears it is not meeting the legal needs of a group defined by age. there are several possible reasons for failing to meet the needs of this group. other studies have shown that different demographic groups use different strategies in response to legal problems with the 65s and over amongst the least likely to take action in response to a legal problem of any age group.[footnoteref:37] it could be cultural: they could be reluctant to be seen to be complaining preferring to take a more stoical approach or they find the idea of accessing services via a university alienating; it could be practical: they find it difficult for a number of reasons such as mobility problems, to come to the university campus to access the clinic’s services; it could simply be that they are unaware of the university’s services or aware of them but wrongly assume that they are not eligible to use them. the next stage is to evaluate whether this need can be met through outreach work: going out and holding pop up clinics in the community which will be easier for this age group to access. [37: n 9, 17 ] this focus on one part of colchester is intensely local. in order to be a useful part of students’ legal education it has to avoid being parochial. we have already looked at social relations between the greenstead and hythe area, on the one hand, and wivenhoe, on the other. but what lessons can be learnt from the locality’s relations with other parts of the world? mapping a local area can be a vehicle for examining issues of global social justice with students, and how ‘time-space compression’, condensing or eliding spatial and temporal distances, affects different groups in the community and beyond. the university of essex is international in its outlook with 40% of its students (over 5,000 people) coming from outside the uk.[footnoteref:38] on a statistical basis this is likely to be reflected in the composition of the student population of the greenstead and hythe areas of colchester. [38: university of essex ‘key statistics’ (about us) < https://www.essex.ac.uk/about/university/facts_and_figures/key_statistics.aspx> accessed 20 february 2017 ] it could be argued that this shows a ‘progressive sense of place’ – a place which is outward looking and positively integrates the global and the local in that it has relations with other places, and does not feel threatened by them.[footnoteref:39] these relations benefit the students’ home countries who will gain their enhanced skills when they return to work. however, developments in one area will invariably affect another area. less positively are the immigrant medical workers in the area working at colchester general hospital causing shortages in medical centres in their own countries? [39: doreen massey, ‘power geometry and a global sense of place’ in jon bird, barry curtis, tim putnam, george robertson, and lisa tickner (eds), mapping the futures: local cultures, global exchange (routledge 1993) 68 ] part three: management of a long-term educational unmet legal need project the lawzone colchester project is intended to be long-term, which will continue after the student advisers, possibly several cohorts of student advisers, have completed their studies. this creates a challenge: how do students have the desired ownership of the project when they will have to relinquish control at some point and another cohort takes over? for these purposes a project is defined as something which ‘involves students solving legal problems through the use of strategies and tactics other than litigation.’[footnoteref:40] [40: anna e. carpenter, ‘project model of clinical education: eight principles to maximize student learning and social justice impact’ 20 clinical l. rev. 2013-2014, 50] as has been discussed above, the project has been a collaborative effort between tutor and student adviser. it is submitted that this does not compromise student ownership, but the tutor involvement is a form of guidance and support to enhance the students’ work. students still have ownership as there is a client whose needs the students must address, i.e. the community the clinic serves. the various stages of a project have been identified as: (1) problem identification/definition, (2) gathering evidence, (3) identifying and exploring alternatives, (4) developing and possibly implementing a strategy for solving the problem, and (5) repeating the process again if necessary, as problem solving is typically an iterative process.[footnoteref:41] [41: n 40, 72 ] the scale of the project means that it is overlapping a number of these stages. stage one has been completed. the problem has been identified as it has arrived at a workable definition of unmet legal need: problems(s) being experienced by the community where legal process is a possible solution and for which a significant identifiable section of the community is experiencing difficulty in accessing advisory services. it has also spatially defined its community as that part of the st andrews ward which is south east of harwich road and that part of the hythe bound by the river and major roads. it is still at stage two, as the project continues to gather evidence. however, sufficient evidence has already been collected to identify two possible groups as not having their needs met: the lgbt+ community and the retired. stage four has been partially achieved as strategies have been identified to better meet the needs of the lgbt+ and retired communities by reaching out to them either through outreach activities and/or making it clearer through promotional literature, etc. that services are designed with their needs in mind. at the time of writing, preparations are being made to implement these strategies. however, there is a need to go beyond the paper sources and reach out to the community itself. a stakeholder group would enhance the project as well as a survey of local residents. this creates skills and development needs for the students who will have to become proficient in survey design. however, there is guidance available for such survey design.[footnoteref:42] in order to assist with the comparability of data, it is desirable that precedent questions are used unless there are compelling reasons due to local variation to depart from them.[footnoteref:43] if it is necessary to depart from precedent then this requires expert assistance. [42: n 3] [43: n 14, 68] as it is an iterative process then future cohorts of students will repeat various aspects of these stages. whilst it will not be possible in an ongoing project to alter the definition of what is meant by unmet legal need it will still be possible to identify different communities within the essex law clinic’s catchment area. with regard to stage two, the collection of socio-economic data is an on-going process as this is collected from clients at each interview, and there is a need to keep up to date with governmental data. the more data collected the richer the picture. it will provide more opportunity to see if the community has changed over time, as well as assessing if there is ‘postcode deprivation’ or any other reason to think that there is a variation from predictive modelling. there is also further work required in terms of mapping social infrastructure. the project has so far mapped some physical resources. it now needs to identify other resources, particularly human resources, such as community leaders, community activists, employers of local inhabitants, etc. as the stages of the project are iterative, the strategies are the abstract conceptualisation; the experience of implementing strategies has to be kept under review; there needs to be reflection on the experience; which will then go onto create a new experience in the manner of kolb’s experiential learning cycle.[footnoteref:44] [44: david kolb, experiential learning: experience as the source of learning and development (2nd edition, pearson 2014) ] external controls have been established for the next generation of students to work on the project: the work students undertake is confined to any research or activity which furthers understanding of unmet legal need within the jurisdiction of colchester borough council and is within the remit of the essex law clinic. conclusions identifying unmet legal need is something which should concern clinics as it undermines the rule of law; it helps clinicians realise ‘latent demand’; and it is of assistance to policymakers in their decision making. it provides students with an opportunity to gain insight into systemic problems facing the communities they serve. they will gain experience of the methodological problems in establishing unmet legal need, as well as quantitative and qualitative research methods. it requires working with big data but also identifying the limits of the effectiveness of relying on it. they will also be equipped with an awareness of the impact research findings can have. it is a particularly effective way of maximising student ownership as their experience as digital natives enables them to put forward fresh perspectives and participate in clinic on a basis of equality with tutors and practitioners. however, to work effectively, and to maximise student ownership, the mapping project has to set external controls so that its long-term operation can be broken down into discrete aspects which are achievable within the time that students will be working within the clinic. in addition to research skills, it develops skills of project management, entrepreneurship, and interdisciplinary practice. it also allows students to examine issues from fresh perspectives. it can enhance their spatial thinking and allows them to see how causes of injustice can be embedded into the architecture of the environment, as well as developing their visual awareness. it embeds them more deeply into their local communities which enhances their understanding of the clients they serve as well as breaking down barriers between the clinic and the community and overcome the risk of the clinic as being seen as something other. percentage of clinic clients by subject matter percentage of clinic clients by subject matter landlord and tenant relationship breakdown property dispute employment and equality consumer child contact negligence neighbour dispute online dispute small business welfare benefits other 24.44 17.22 13.88 12.77 10.55 8.33 3.88 3.33 2.2200000000000002 2.2200000000000002 0.57999999999999996 0.57999999999999996 23 reviewed article – clinic, the university and society establishing an environmental law clinic in china: a review of relevant factors and various models. evan hamman, school of law, queensland university of technology, australia[footnoteref:1] [1: i am grateful to the editor and the anonymous reviewer as well as the research assistance from queensland university of technology (qut) law students during this writing of this paper: tess van geelen, eva sheppard, ellie prior, kathryn lukin, phoebe mctaggart and joshua dunn. all errors remain my own.] keywords environmental law clinic (elc), china, clinical legal education, environmental law, experiential education abstract this paper looks at the factors which affect the establishment of environmental law clinics (elcs) with a particular focus on models that might be most effective in a chinese context. the paper is the result of desktop research and a clinical program where five law students and one supervising academic from an australian law school attended a chinese law school in early december 2016. during the visit, australian law students conducted a workshop with chinese law students as well as visited several ngos in wuhan and beijing to grasp a better understanding of the environmental issues the country faces. the observations in this paper are preliminary in nature and further discussion of educational goals and community needs will be required before settling on a particular model. brief recommendations and a list of relevant factors for consideration for chinese elcs are provided at the end of the paper. introduction clinical legal education (cle) is one of legal education’s biggest success stories.[footnoteref:2] drawing largely on practices from nursing and medicine, law schools from almost every part of the world have taken up the task of training and educating their students through the powerful paradigm of experiential education. the ‘traditional’ model of cle involves law students attending lawyer-client advice sessions or assisting with upcoming cases. under supervision, these students gain insights into what lawyers do and the types of legal issues their clients face. more sophisticated models of cle have evolved to include students working on initiatives like law reform and education such as workshops, seminars and information sessions. some models have also experimented with other disciplines such as finance, business, science and social work. [2: wilson, r., (2009) western europe: last holdout in the worldwide acceptance of clinical legal education. 10(6) german law journal, 359-382.] the goal of cle has traditionally been two-fold. first, there should be a focus on student ‘learning through doing’ (i.e. the experiential part). it is this work-integrated experience that separates cle from classroom-based learning where students absorb information through lectures and texts. further, most legal clinics involve a social-justice aspect, as opposed to an experience, for example, in corporate firms or private businesses with a focus on making profit (these types of initiatives are more commonly referred to as internships, placements or secondments). the second goal of cle is thus to provide a benefit or service to the community. in the literature, this is often referred to as ‘service learning’.[footnoteref:3] the discipline of law is uniquely placed for service learning because of its ability to address questions of justice, fairness and equality. [3: smith, l. (2004). why clinical programs should embrace civic engagement, service learning and community based research. clinical law review 10(2), 723-754. see also: laurie a morin and susan l waysdorf ‘the service‐learning model in the law school curriculum’ (2012) 56 n.y. l. sch. l rev 561, 567.] environmental legal clinics (elcs) are a specialized form of legal clinic. their focus, as the name implies, is on the application, analysis and improvement of environmental laws. apart from schroeck’s recent work,[footnoteref:4] wei’s paper from, 2009,[footnoteref:5] and pei-pei he and other’s 2016 research[footnoteref:6], little appears to have been published about elcs in china. schroeck’s paper emphasized a need for partnerships with united states (us) law schools which have an established history of elcs but noted there are several challenges that face the chinese context. wei emphasized the differences in legal systems of the us and china, suggesting a focus should be had on training and recruiting professional staff to run the clinics. finally, pei-pei he and others suggested that non-government organizations (ngos) need to be closely aligned with elcs and curriculum development. all authors covered some of the benefits and impediments to the operation of elcs in china. [4: schroeck, nicholas j (2016) "a changing environment in china: the ripe opportunity for environmental law clinics to increase public participation and to shape law and policy." 18(1) vermont journal of environmental law 1-17.] [5: wei, xu (2009) ‘a comparative study of environmental law clinics in the united states and china’ 19 education law journal 75-94.] [6: pei-pei he, yu-jing zhuang, ying lin and cheng-hui zheng ‘environmental law clinics in collaboration with environmental ngos in china’ 9(3) sustainability 2017 337; doi:10.3390/su9030337 ] the arguments in this paper shy away from a ‘casework model’ of an elc where students engage in environmental litigation. whilst china has enjoyed something of an ‘environmental awakening’ of late, with an influx of new laws and specialist environmental courts and tribunals (there are now over 900 specialist forums), the practice of public interest environmental litigation is still relatively scarce. there are several possible reasons for this, including: · a lack of trained judges and lawyers specializing in environmental law; · the complexity and expense of gathering expert evidence; · the time-consuming and laborious nature of litigation procedure; · the possibility that litigation could be seen as political or; · the lack of effective transparency and right to information systems; and · the fact that case law in china plays ‘little role in the whole system of law’ and that lawyers rely more on ‘theoretical explanations of laws and regulations.’’[footnoteref:7] [7: wei, above n 4.] for these reasons, and others, this paper suggests that chinese elcs should focus on law reform, policy and community empowerment – at least in the short term. the focus of such an elc would avoid providing ‘services’ to individual clients but encourage a small group of students (say 5-10) to help deliver a reform or education project (a report, written analysis, journal article, website resource, education video etc.).[footnoteref:8] non-casework models can provide students with a broader array of experiences for their future work, whilst, at the same time, allowing the clinics to be powerful forces for change through the practice of ‘community lawyering.’[footnoteref:9] as robertson has suggested, elcs which undertake tasks outside of litigation (such as compliance and regulatory work) are also able to provide students with: [8: building the clinic around the language of ‘environmental justice’ or ‘environmental governance’ allows students and other stakeholders to situate the practice of the clinic in a broader theoretical space than just law. ] [9: tokarz, karen l. and cook, nancy l. and brooks, susan l. and bratton blom, brenda (2008) conversations on 'community lawyering': the newest (oldest) wave in clinical legal education’ 28 washington university journal of law and policy 45.] a more realistic look at the practice of environmental law, and [one that] better prepares them to enter practice.[footnoteref:10] [10: robertson, h., (1998) methods for teaching environmental law: some thoughts on providing access to the environmental law system, 23 columbia journal of environmental law 237, 269.] pei-pei he’s paper is important in this regard, that is; that ngos need to work closely with elcs and universities to show them the type of work they actually do in practice, most of which is not litigation.[footnoteref:11] [11: pei-pei he above n 5.] in the end, whichever model of elc is considered, the situation is ‘ripe’ for china to start trialing different approaches.[footnoteref:12] us law schools aggressively experimented with clinical models in the 1990s, and today the us leads the world in elcs not to mention the production of passionate and skilled conservation advocates. in the next decade, more than ever, there is the opportunity for chinese law schools to investigate new ways of addressing environmental issues and teaching environmental law. the goal of this paper is to shed some light on the practical aspects of how that might be achieved through the establishment of elcs. [12: schroeck above n 3.] approach and structure the findings in this paper are primarily based on desktop research carried out by the author with the assistance of five australian law students between november 2016 and march 2017. as part of the research, a half-day workshop was held in partnership with a chinese law school. during the workshop, the participants presented and discussed models of elcs as well as the teaching and practice of environmental law in china. the author and students in the clinic also met with ngos in beijing and wuhan to help understand the nature of environmental issues in china. further research on this topic would be beneficial using empirical or case study approaches of existing elcs. in this instance, time and resources did not permit that to occur and the recommendations in this paper should be understood in that light. the paper is structured in three parts. part one gives background and context to the idea of an elc, looking at the benefits of cle more generally and what an elc might involve. it also seeks to clearly define an elc, something that has not been adequately achieved in the past. part two of the paper considers existing elc models categorizing them into casework, non-casework and hybrid/comprehensive approaches (type ‘a’, ‘b’ and ‘c’ approaches). part three of the paper then looks at the chinese context, noting elcs that already exist and pointing out some of the challenges that litigation-focused (type a) models might encounter. finally, part four of the paper provides recommendations about establishing an elc in china including a list of relevant considerations such as funding, staffing, outputs and evaluation. part 1: background and context the benefits of clinical legal education (cle) cle can be a life-changing experience for any law student. it can open their eyes to the realities of the law and the impact of our systems and institutions upon wider society. it can give students a valuable set of contacts on which to call on later in life, and provide them with hands on experience to put on the resume. at the same time, cle can support civil society providing them with much needed assistance on issues they may themselves lack the resources to pursue such as law and policy reform and community education. universities are also recognising the benefits of cle including being able to offer practical experiences to their students and, at a faculty level, engaging with external actors outside of the academic world (i.e. government, non-government and other private actors). some of the main benefits to the university, community and student have been summarised in table 1 shown below. table 1 benefits of cle from three perspectives university student community improve community standing and reputation of the law school in society hands on experience of ‘real life’ legal matters to translate theory to practice attention to legal issues which might otherwise be under-analysed or under-resourced for want of resources opportunities for further research and collaborations with ngos and government actors introduces to group of peers or networks to call on and collaborate with later in life links community to academic and professional sector which they might otherwise have little dealings with chance for academics to show impact from work and apply for further funding opportunities instils a sense of social justice and community empowerment in future practice gives communities a voice, platform or outlet they might otherwise not have had (e.g. through website or social media platforms) ability to differentiate itself from other universities, courses and programs gives students something they can point to in their resume and credit towards their degree reveals to communities how law and justice is relevant to their everyday lives there are various ways of delivering cle in tertiary education and as giddings remarks, there is certainly no ‘one size fits all’ approach.[footnoteref:13] one method involves hosting a clinic onsite at the university using existing space with paid lawyers or legally trained ‘clinicians’ to supervise student work. another option involves running a clinic off-campus (externally) where the law school partners with a legal aid center or other pro bono or community organization.[footnoteref:14] as giddings sets out in some depth, there are various other hybrid models as well.[footnoteref:15] [13: probably the best and most comprehensive exploration for various models is found in jeff giddings, promoting justice through clinical legal education (justice press, 2013).] [14: see giddings, ibid.] [15: ibid. ] in terms of supervision, which is a key question for any clinic, lawyers or clinicians can be employed on the staff of the university on a permanent or part time basis. alternatively, supervisors might be kept ‘at arm’s length’ from the university through a contractual arrangement from semester to semester or year to year.[footnoteref:16] another possibility is that some funding from the law school may be provided to a partner organization as remuneration for their supervisory work of the students (i.e. outsourcing of education responsibilities). in the end, it is about what works best for the law school in the current strategic, financial and educational climate in which it operates. [16: one of the biggest problems in establishing and continuing a clinic is supervision of students. see for instance; giddings, jeff; mcnamara, michael (2014) ‘preparing future generations of lawyers for legal practice: what's supervision got to do with it?’ 37(3) university of new south wales law journal 1226. lawyers are often not trained to assess and provide academic feedback to students and are often not cognizant of the academic context in which the students participate in the program. supervision from universities is often not prioritized as research, collaborations and travel usurps time and effort on the part of more senior academics with the knowledge and wisdom to dispense powerful lessons through ‘light bulb’ moments.] defining an elc elcs, much like the jurisprudence of environmental law itself, are a relatively new phenomenon.[footnoteref:17] whilst examples of elcs are easy enough to find on the web, predominately in the united states (us), from an academic standpoint they have been under-studied and many for example may not be actually operational or fully-functioning. similarly, whilst the benefits of cle to student well-being and employability are increasingly well-known,[footnoteref:18] the pedagogical benefits of elcs, and indeed other specialist clinics (like human rights, intellectual property, labour law etc), are noticeably absent from the literature. accordingly, settling on a definition of what an elc is and what it seeks to achieve is not easy task. nonetheless, drawing from the broader cle literature, a working definition of an elc can be constructed as follows: [17: see wei, above n 4.] [18: see for example james, colin g., (2008) ‘lawyers’ wellbeing and professional legal education’ 42(1) the law teacher: the international journal of legal education, 85-97.] ‘an elc is a form of specialist legal clinic whereby tertiary students, under supervision, engage with various aspects of environmental governance in order to meet community needs as well as their own learning goals.’ this definition is broad enough to integrate students from other disciplines into the clinic (science, media, business, information technology etc), as well as cover the concept of environmental governance, which includes factors within and outside the law such as: the role of the media, ngos and epistemic communities (e.g. universities and scientific bodies); the influence of human rights and other norms, policy considerations and other soft law non-binding instruments etc). the other key part of the definition is that students must be ‘supervised’ in some form that is an integral aspect of what cle entails. the reference to a student’s ‘own learning goals’ is derived from the pedagogical literature, a bulk of which theorises that students learn best when they set their own benchmarks for success through ‘self-regulated learning.’[footnoteref:19] [19: see for instance: barry j. zimmerman (1990) self-regulated learning and academic achievement: an overview, educational psychologist, 25:1, 3-17] specialist clinics like elcs have become more prominent in the united states, australia and europe since the 1980s.[footnoteref:20] the growth has been in response to a demand for more specialised fields of legal practice and more particular (and complex) community concerns. as evans and hyams write, one of the greatest benefits of specialist clinics is that they are able to: [20: see giddings, above n 12, 101.] speak directly to the burgeoning particular interests of individual students and can generate an even greater degree of energy for the specialisation than they experienced in the general practice clinic.[footnoteref:21] [21: evans, a., and hyams r., (2015), ‘specialist legal clinics: their pedagogy, risks and payoffs as externships’ 22(2) international journal of clinical education 147-180.] as wei writes, specialist elcs have a unique capacity to combine: social concerns about environmental issues with more traditional legal education…[and] serve as tools of social equity for helping the victims in environmental issues, especially those who cannot afford to hire a lawyer.[footnoteref:22] [22: wei, above n 4, 76.] establishment and composition of elcs the first elc was reportedly developed in the united states at the university of oregon in 1976. thereafter, they ‘sprouted like mushrooms’ and today, there are about 35 elcs in the us including: harvard, yale, chicago, washington, maryland, duke, tulane, lewis & clark and pace.[footnoteref:23] the growth of elcs in the us has been considerable. so much so, in fact, that it was reported in the 1990s that some universities were ‘using environmental law for experiments with clinical or interdisciplinary approaches to legal education.’[footnoteref:24] [23: babich, a., (2013) ‘twenty questions (and answers) about environmental law school clinics’ 22(1) the professional lawyer 45.] [24: robertson, above n 9.] in addition to the us, canada has a handful of elcs including clinics established at: university of victoria (vancouver island): university of calgary (part of a public interest law clinic); york university’s, (osgoode hall law school); and the university of ottawa’s ecojustice clinic.[footnoteref:25] central and south america are also home to several elcs including clinicas juridicas (juridical clinic) at universidad de palermo in buenos aires and costa rica’s conservation clinic at the university of costa rica (ucr). several law schools in australia (including macquarie university which runs a land and environment court experience), south africa, china and spain also have specialist elcs built into their curriculums.[footnoteref:26] in all, a conservative estimate is that there are approximately 50 elcs worldwide, with about two thirds located in the us. [25: my thanks to canadian academic pierre cloutier de repentigny for confirming these elcs] [26: for an overview of an elc in spain, see borràs, s, et al., ‘the environmental law clinic: a new experience in legal education in spain’ (chapter 5) in daniela ikawa, leah wortham (eds.) the new law school, reexamining goals, organization and methods for a changing world (public interest law institute, 2010).] in the us models, students in elcs are likely to assist with legal advice and casework for individual clients (such as conservation organizations, concerned residents or community associations). there are special rules in many us jurisdictions, unlike in china and australia for instance, which allow students to participate first hand in cases including advocating in court. law students in california for instance, can be accredited, to ‘appear on behalf of clients ‘in any public trial, hearing, arbitration, or proceeding.’[footnoteref:27] likewise, law students in florida can also apply for certification to represent clients in court.[footnoteref:28] various other states in the us have their own rules for student advocacy through cle. [27: rule 9.42 (‘certified law students’) california rules of court 2017] [28: students in florida can achieve ‘legal intern certification’ pursuant to chapter 11, rules regulating the florida bar (the ‘student practice rule’).] in addition to assisting with legal advice or casework in specific cases, students at an elc may also work with academics or other organizations on research, education or law reform initiatives that are useful to broader society.[footnoteref:29] this might involve, for example: [29: mcnamara, judith, campbell, catherine, & hamman, evan, (2014) ‘community projects: extending the community lawyering model’ 12(2) international journal of clinical legal education, 18.] · updating factsheets, handbooks or other community education resources; · assisting in contract drafting or leasing or conveyancing work needed, for instance, to establish a private conservation reserve; · preparing research or co-writing conference papers or journal articles · pressuring companies to ‘become greener’ or go low emission by compiling reports or releasing public information in ‘easy to understand’ formats; · launching and/or maintaining eco-friendly social media campaigns about a topical issue (e.g. water pollution in a local catchment, contamination levels in soil); · commenting or making submissions on upcoming law and policy reforms at the local, state or national level. the potential scope of work at elcs appears broader than other types of clinics and likely reflects the transdisciplinary array of problems that stakeholders in environmental governance face on a daily basis (legal, scientific, technological, financial, conceptual, etc). elcs are likely to be unique in this way and can expose law students (and other students) to a wide variety of community projects outside of litigation, which help develop a student’s notion of social justice and build their capacity to address complex issues in a systematic and supervised way.[footnoteref:30] students who partake in elcs also have the benefit of being exposed to environmental issues first hand and take some degree of ownership or responsibility over their experience. [30: ibid., 9.] for some students, experience in an elc can sharpen their passion for the environment and the natural world, whilst for others they may realize for the first time a desire to pursue a career path in public interest advocacy. some students may also find work with or through the elc or its stakeholders, whilst others might make valuable social and business contacts for future work. most elcs, like other clinics, can also be adapted to focus on the skills which universities wish to build in students by placing an emphasis on specific strategies or legal tools including representation, community education, and policy.[footnoteref:31] [31: karin m., and runge, r., (2011) ‘toward integrated law clinics that train social change advocates’ 17 clinical law review 563, 570.] moreover, because of the public interest and ‘grass roots’ nature of the work that they do, elcs can also be a powerful way of universities connecting with their local community and the organizations that represent them. for those universities that wish to specialize in environmental law and governance, they can also prove a valuable part of competitive advantage acting as a magnet for the country’s best and brightest future environmental lawyers. the number of students enrolled in elcs varies considerably. as robertson estimated in the late 1990s, elcs (in the us) have enrolled ‘anywhere from three to fourteen students each semester.’[footnoteref:32] that said, most elc operations tend to be niche and relatively small initiatives, and student groups are often kept to a manageable size of between 4 and 10 students rotating through the clinic at different times. most law schools with elcs seem to offer it as an undergraduate (elective) option in later years of the degree, though there is no reason why it cannot be offered at the postgraduate (e.g. masters of laws) level or built into practical legal components of legal admission processes post-graduation. as clubb remarks, postgraduate clinics have the potential to engage older students in a wider appreciation of socio-economic factors and deliver more targeted and sophisticated benefits to complex problems in the community.[footnoteref:33] [32: robertson, above n 9, 267] [33:  clubb, c., (2013) ‘masters of our destiny ‐ the integration of law clinic into post graduate masters provision.’ 19 international journal of clinical legal education 395.] challenges faced by elcs elcs face considerable challenges, as giddings remarks, perhaps more so than any other form of clinic.[footnoteref:34] the reasons for this seem relatively straightforward. the practice of environmental law, protection and conservation is often directly opposed to the interests of both government and private enterprise (mining, chemicals, agriculture, shipping, development etc). it comes as little surprise that taking on cases or advocating issues that challenge those interests can result in condemnation or criticism from those who stand to lose from the circumstances. the tulane environmental law clinic in the us, for example, was famously the subject of extensive criticism over litigation it was involved in several years ago.[footnoteref:35] at the time, tulane’s elc program represented citizens who challenged the issuing of environmental permits to the petrochemical industry. in response, the industry ‘developed an eleven-point plan’ to “kneecap” the university financially.’[footnoteref:36] likewise, it has been reported that the university of oregon’s clinic and university of pittsburgh’s have been attacked by state officials and industries.[footnoteref:37] [34: giddings, above n 12, 133.] [35: kuehn, r., (2000) ‘denying access to legal representation: the attack on the tulane law clinic’ 4 wash. u. j. l. & pol’y 033 <http://openscholarship.wustl.edu/law_journal_law_policy/vol4/iss1/>] [36: joy, p., and kuehn, r., (2010) ‘kneecapping’ academic freedom’ washington university in st. louis legal studies research paper no. 10-11-01. available at ssrn: https://ssrn.com/abstract=1719325, 9.] [37: giddings, above n 12, 133.] funding is of course another major roadblock to establishing an effective elc (or indeed any form of clinic). as environmental law is often an elective – or a small component of of university curriculums marketing the idea of an elc to law school management may prove harder than for other initiatives which drive research agendas and increase student enrolments. furthermore, conservation and community organizations which may work with the elc are often member-driven and receive little or no government funding for their activities. reliance on a percentage of a successful judgment in a case is one option for elc funding, but in jurisdictions outside of the us, these forms of ‘contingency fees’ may be illegal. moreover, in public interest environmental hearings ‘there is often no pot of gold at the end of the rainbow.’[footnoteref:38] [38: preston, b (2013) ‘environmental public interest litigation: conditions for success’ (speech delivered at the international symposium: towards an effective guarantee of the green access: japan’s achievements and critical points from a global perspective, awaji island, japan, march 2013) <http://greenaccess.law.osaka-u.ac.jp/wp-content/uploads/2013/04/13en_preston.pdf> 11] like other specialist clinics that focus on public interest issues (consumer advocacy, human rights, refugees, labor law etc.) elcs can also struggle to manage student expectations and attract student interest. in many parts of the world, including china, public interest law is not a lucrative career pathway for law students. this is particularly the case in uncertain economic times where students have accumulated considerable debt over the course of their degree. there are also cultural considerations at play. in china, for instance, students may well be the only child of their household, and there are high expectations that they will one day succeed financially and perhaps avoid the type of work that elcs do. one of the core challenges of elcs is therefore to change the ‘charitable’ image of the work they undertake and be able to market their existence to high performing students with a passion or interest in working in environment, public interest, administrative law or other related areas of law. finally, successful clinics manage their student expectations well. to do this, students need to be given a realistic idea of what they will and won’t be doing.[footnoteref:39] as mcnamara et al writes, without clear expectations and direction, students can be frustrated and confused about their experience.[footnoteref:40] maintaining student interest in a specialist cle along the semester can be challenging, time consuming and administratively demanding.[footnoteref:41] students may tend to focus exclusively on assessment tasks, rather than on the needs of the clinic and its clients, thereby ‘playing the game’ of the law school, rather than contributing to the real community needs. [39: evans and hyams, above n 20.] [40: mcnamara et al, above n 28.] [41: evans and hyams, above n 20.] some of this may flow from the fact that legal clinics are still generally viewed as though they are separate or not ‘as important’ as the rest of the regular law curriculum.[footnoteref:42] this is likely a result of the traditional view of academic tertiary education and its historical focus on teaching ‘black letter law’. nevertheless, those students who have experienced the advantages of a legal clinic often suggest (anecdotally) that the benefits of such a model are so unique to education that clinics should form part of the compulsory curriculum. despite this, it remains that in most institutions clinics are seen as optional rather than a core unit that delivers relevant knowledge and skills.[footnoteref:43] the challenge for elcs are no different in this regard. some universities like rovira i virgili university in spain, for example have tried to address this by making an elc ‘both a core subject in the syllabus of the master’s degree in environmental law and an elective in the undergraduate course in law.’[footnoteref:44] [42: hall, j., and herrigan, k., (2011) ‘clinic and the wider law curriculum’ international journal of clinical education 25-37. ] [43: ibid. ] [44: borràs et al, above n 25. ] part two: existing elc models this part of the paper categorises the different focuses (or models) of elcs into three groups: type a, b and c. table 2 below summarises the three basic models of elcs that are available. the three types were based on desktop research undertaken by the author and clinical students. type a (casework) models tend to focus on litigation, legal advice and work related to court proceedings. an example of a type a clinic model is the columbia law school elc, in which students advocate for citizen and environmental groups before state and federal agencies, and have both a local and national focus on environmental litigation.[footnoteref:45] pace university’s environmental litigation clinic is another example of a type a model, and since the 1990s has run several important cases.[footnoteref:46] another example of a type a clinic is the clinicas juridicas (juridical clinic) at universidad de palermo in buenos aires, argentina. enrolment in this clinic is mandatory for all law students in 4th or 5th year. under supervision, students assist qualified lawyers who are representing clients on issues including civil, criminal, mediation, family, human rights, immigration and environment law. students undertake research, conduct interviews and prepare documents for upcoming cases.[footnoteref:47] [45: columbia law school, environmental law clinic,’ clinical education <www.law.columbia.edu/clinics/environmental-law-clinic>] [46: pace university, ‘pace environmental litigation clinic’ <www.law.pace.edu/pace-environmentallitigation-clinic>] [47: universidad de palermo, ‘clinicas juridicas’, facultad de derecho (law faculty), <http://www.palermo.edu/derecho/facultad/clinicas_juridicas/casos/index.html>] table 2. three basic cle models categorised by the nature of the work they do type a (casework) type b (education-reform) type c (comprehensive) focus of elc predominately litigation-focussed, undertakes casework, representation and legal advice to particular clients in and related to court or tribunal proceedings. concentrates on law reform, and tends to focus on information and education regarding environmental issues rather than one-off legal advices or representation in court focuses on a wide range of legal activity including litigation, case work, advice, education initiatives, policy and law reform. type b (law reform-education) models of elcs tend to concentrate on non-litigious tasks such as students assisting with community education, policy and law reform. these tasks are broader than ‘one-off’ cases and do not necessarily involve serving individual clients, but rather, focus on delivering wider community gains. the university of victoria elc (in canada), for instance, appears to adopt this type of model.[footnoteref:48] it reportedly operates on a local level in order to optimise community involvement, and, in addition to meeting with community groups about their legal issues, produces handbooks and other documents for community organisations and the general public. in another example, at queensland university of technology (qut) school of law in australia final year law students partner with an environmental ngo to prepare law reform submissions, factsheets, handbooks, youtube videos, community events and other non-litigious services.[footnoteref:49] [48: university of victoria, faculty of law ‘environmental law centre,’<http://www.elc.uvic.ca/programs/clinic/>. ] [49: see hamman, e., maguire, r., & mcnamara, j., (2014) pro bono partnerships in environmental law: enhancing outcomes for universities and clcs. 39(2) alternative law journal 115-119.] finally, type c (hybrid or ‘comprehensive’) models involve a combination of type a and b, in which both litigation and reform-education work are undertaken. these clinics are comprehensive in their scope (or at least claim to be) and likely attract significant oversight and funding commitments from the university. there are numerous examples of type c clinics in the united states and most may, by default, end up working on law reform, research and community education where no cases are available or active for students to work on. at berkeley law school (in the us) for example, clinic students undertake litigation, but are also encouraged to develop advocacy skills in law and policy reform. students work on research about particular environmental issues across five main areas: climate change, toxics reduction, drinking and sanitation, green job creation, and equity in access to nature.[footnoteref:50] [50: berkeley law school, ‘environmental law clinic takes on urgent issues’ <https://www.law.berkeley.edu/article/environmental-law-clinic-takes-urgent-issues/>] the advantage of type c clinics is that they offer students the chance to develop courtroom and legal drafting skills as well as see the broader context in which environmental law operates. berkeley clinic director claudia polsky recently commented on the need for developing student skills outside of litigation: i’m not inclined to add another amicus brief to 15 others in a case simply because it would give students useful experience writing an amicus brief. in a world of rapidly rising temperatures and pollution levels, and an alarming rate of species extinction, we need to make a real-world difference in addition to teaching lawyering skills.[footnoteref:51] [51: ibid.] there are several examples of type c clinics in the human rights context as well. at the public interest law clinic at universidad nacional de tucuman (argentina) for instance, students conduct litigation on behalf of individuals for human rights infringements. at the same time, students at the clinic also work on projects related to access to justice and information, such as producing ‘layperson-friendly’ guides to the law and citizen rights.[footnoteref:52] [52: puga, m., (2010) ‘challenges for legal clinics in argentina’ the law teacher 239-259.] the categories a-c are by no means static. at times, elcs may begin as one form of clinic and morph into another. the centre for human rights law and the environment (cdha) in argentina, for example, began as a type c clinic, incorporating a range of programs that included student-led litigation, advocacy, community engagement, and capacity building of key actors locally and nationally. the clinic represented individuals and communities impacted by environmental degradation or unsustainable use of natural resources, and works to protect communities from future negative impacts.[footnoteref:53] in the past it ran a number of successful cases, for example, against mining companies that did not comply with rules regarding clean-up and rehabilitation of the area. however, after a few years, cdha found that student-based litigation was too difficult as cases took too long and the timing was too unpredictable to fit within a university course. thus the organisation now continues as a type b clinic, focusing on community engagement and advocacy.[footnoteref:54] [53: center for human rights law and the environment, ‘mission and activities’, http://wp.cedha.net/?page_id=6271&lang=en.] [54: ibid.] internal or external delivery? external clinics (clinics hosted ‘off-campus’) are often seen as more cost effective than onsite models, but they still have their own set of challenges.[footnoteref:55] they may, for instance, be deficient from a teaching and learning perspective, as students may not understand their own attributes, learning styles and learning needs without effective university supervision present. the law school may therefore have little control over the day-to-day learning of the students, with reliance that the external institution will provide the students with educationally useful and valuable activities, and an expectation that the students themselves are proactive and honest in how they are viewing their experience.[footnoteref:56] the external organization may also hold a different view of social justice from the students or university, which can cause an uneasy relationship between the university and the partner.[footnoteref:57] this conflict may also cause broader image issues for conservative universities or law schools where a partner may be seen as too ‘radical’ or political’ for other forms of work the university undertakes (for instance in other faculties like mining, petrochemicals, business, investment etc). [55: giddings, above n 12.] [56: evans and hyam, above n 20.] [57: taylor, a., (1977) ‘clinical legal education’ 2(2) studies in higher education 137-147. ] internal clinics also have their own set of challenges. first, there are the considerable costs of establishment.[footnoteref:58] suitable office space, computers, reception staff etc may be needed. costs can also increase due to the small student-to-faculty ratio, meaning several students may need to be supervised very closely by a senior academic.[footnoteref:59] further, clients (if the clinic sees clients) need to come on-site at the university to deliver documents, receive advice or give instructions to lawyers. there may be logistical issues where clients are some distance from the university or, in some countries, there can be security issues with attendance by non-students on campus grounds. lastly, internal clinics can also face recruiting problems, attempting to find suitable staff and develop the sort of profile and reputation that specialist clients would consider appropriate for their needs.[footnoteref:60] [58: chmerkinsky, e., ‘why not clinical education’, (2009) 16 clinical law review 38. ] [59: ibid. ] [60: evans and hyams, above n 20. ] one issue which affects both internal and external clinics is that there is a lack of information more generally concerning clinic establishment.[footnoteref:61] the information that does exist mostly relates to the us yet the establishment of clinics should ideally take in to account the local cultural setting.[footnoteref:62] this means that setting up new legal clinics may involve extensive research and due diligence (costs) before the clinic is active including taking into account the culture of the communities for which the services are intended. [61: puga, above n 51.] [62: ibid. ] part 3: elcs in the chinese context why establish an elc in china? china is an emerging superpower. over the last three decades it has lifted millions out of poverty and greatly increased public infrastructure and investment in health and education and other important services. it has also become a major geo-political player on the regional and world scene able to negotiate and influence future international agendas. of course, this has also come at great environmental cost. air pollution cripples major cities like beijing, shanghai and wuhan, particularly in the winter months, and water pollution from sewerage, chemical production and fertilizer run-off has affected large parts of china’s inland lakes and river systems including the mighty yangtze. the impacts on human health and biodiversity are obvious and the financial costs of such degradation are increasingly recognized. in response, the chinese communist party (ccp) has made important advances, strengthening its environmental protection law (in 2015), introducing tort legislation for pollution victims to receive compensation (in 2009), making water pollution a priority in the latest five year plan and allowing ngos to play a stronger role in the co-regulation of pollution. hundreds of newly established specialist environmental courts (including a special chamber in china’s supreme court) will require trained judges and environmental lawyers. ngos, law firms and government agencies will also need practitioners and researchers who have hands on experience of the workplace and environmental issues surrounding compliance. legally-trained graduates will thus play an ever-important role in the refinement and application of china’s environmental governance systems. elcs can play a central role in the development of these skills. china’s graduates will not only need to be passionate about conservation issues, but technically skilled in understanding and using environmental law as a positive source for change in their communities. with their focus on experiential tasks, elcs are one of the only vehicles that can offer that. numerous elcs can also help to establish a movement of younger scholars and practitioners one which is connected to the world to draw examples from, but also one that understands and is able to suggest solutions in accord with its own customs and laws. existing elcs in china china already has (or has had) a handful elcs operating across the country, though they are still in the ‘embryonic stage.’[footnoteref:63] at sun yat-sen university, in guangzhou, for instance, an elc was established in 2003 – said to be the first in china.[footnoteref:64] as pei-pei he and others report, a major grant from the ford foundation in 2000 helped to lay the ground work for other clinical initiatives at peking university, tsinghua university, renmin university of china, wuhan university, zhongnan university of finance and political science, east china university of politics and law and fudan university.[footnoteref:65] the sun yat-sen clinic was originally intended to carry out litigation work (i.e. a type a model), however, due to a lack of public interest cases, the clinic has taken on a policy and law reform approach instead (type b model).[footnoteref:66] reportedly, it took the clinic several years before it could build a rapport with the local community and relevant organizations to conduct such work.[footnoteref:67] [63: pei-pei he, above n 5. ] [64: baskir, c et al., (2015) ‘chinese clinical legal education: globalizing and localizing’, in sarker, shuvro prosun (ed.) clinical legal education in asia: accessing justice for the underprivileged (palgrave macmillan, 2015), 42.] [65: pei pei he, above n 5.] [66: hamman et al., above n 48.] [67: phan, p., (2005) ‘clinical legal education in china: in pursuit of a culture of law and a mission of social justice’ 8(1) yale human rights and development journal 141.] another elc exists at china university of political science and law associated with the centre for legal assistance to pollution victims in china (clapv).[footnoteref:68] the clapv clinic is unique in china as it focuses on litigation and pursues about 15 cases per year.[footnoteref:69] as stern reports, these cases are ‘mostly referrals from clapv’s legal assistance hotline and come from all over the country.’[footnoteref:70] by comparison, the sun yat-sen model, cases only provided a moderate form of work for the clinic.[footnoteref:71] [68: wei, above n 4, 82.] [69: stern, r., environmental litigation in china: a study in political ambivalence (cambridge univ. press, 2013), 196] [70: ibid.] [71: wei, above n 4, 82.] most of the other existing elc projects in china seem to have had assistance or partnered with us universities or funders. other relevant study partnerships also exist. vermont law school in the us, for example, famous for its environmental law focus, has established the u.s.-china partnership for environmental law in 2006 to build capacity amongst chinese students and lawyers. as schroeck reports, vermont partners with renmin university in beijing to deliver a specialist environmental law program.[footnoteref:72] some of its more interesting outputs and learning experiences include the production of joint research papers.[footnoteref:73] the partnership’s geographical focus more recently has shifted to include the rest of asia as well.[footnoteref:74] [72: schroeck, above n 3, 15] [73: vermont law school, ‘joint research project papers’ <http://www.vermontlaw.edu/academics/centersand-programs/us-asia/publications/joint-research-project-papers>] [74: vermont law school, ‘us-asia partnerships for environmental law’ <www.vermontlaw.edu/academics/centers-and-programs/us-asia>] challenges for elcs in china in addition to the challenges that face elcs in other parts of the world, there are particular challenges that face chinese law schools. a recent paper by pei-pei he and others pointed to several defects in the elc system including: a lack of qualified teaching faculties; incomplete legal clinic goals; and a lack of an effective curriculum system.[footnoteref:75] despite recent amendments allowing ‘registered’ ngos to bring public interest suits, public interest litigation is still rare. as schroeck recently commented: [75: pei pei he, above n 5.] the chinese legal system [still] limits the ability of citizens and public interest advocates to affect social change. control still ultimately rests with the communist party, with minimal rights for citizens. corruption is still a significant barrier.[footnoteref:76] [76: schroeck, above n 3, 17] more recently, ngo collaborations (including funding opportunities) have been restricted by tougher laws introduced by the ccp. as fulda recently wrote: a controversial new law regulating the activities of foreign non-profit organizations (npos) in china came into effect on january 1 [2017]. under the overseas ngo law, foreign npos will have to meet very stringent registration and reporting guidelines.[footnoteref:77] [77: fulda, a., (2017) a new law in china is threatening the work of international ngos the conversation <http://theconversation.com/a-new-law-in-china-is-threatening-the-work-ofinternational-ngos-70884>] all this adds to the already tight funding around existing elc models. wei makes this point succinctly: in the us, elcs may receive reward in the form of an order for attorney fees from the judge when they win a case. that is both a relief to the fund-raising problem as well as an impetus to try the hardest to win the case. however, there is not such a mechanism in china….[moreover] in china, most universities are state-owned. although there are also some foundations that are willing to support elcs in china, such as the ford foundation and the lingnan foundation, the general prospects are not so optimistic, and funds themselves are tight…seeking funds [thus] takes a lot of time away from the substantive work of the elcs and sometimes even threatens the initial establishment or the continued existence of elcs.[footnoteref:78] [78: wei, above n 4, 87.] a further impediment to elcs in china is that there are limited opportunities and incentives for law graduates to work directly in public interest environmental law either during or after university. most middle-class students in china are from one-child families and are reluctant to pursue public interest careers where salaries and prestige are far less than the more established commercial pathways. this phenomenon is not necessarily specific to china. countries like australia and the us face a shortage of public interest lawyers not to mention relatively small percentage of students willing to make it their career path in a time of high competition for jobs and salaries. finally, another major consideration in the chinese context is the staffing of the elc. as wei points out, ‘most [chinese] professors feel that they do not have time to take up other roles and responsibilities beyond their [existing] teaching and research.’[footnoteref:79] in comparison, many of the supervisors in the us are experienced clinicians, rather than lecturers or professors with experience in classroom teaching and legal research. universities may have to find additional funds to employ clinicians outside of their research, service and teaching work. the benefits need to outweigh the costs in this regard. [79: ibid., 87] recommendation: establishing an external ‘education-reform’ model the unique set of challenges facing china’s environmental governance systems suggests emulating the litigation-style us (type a) model of elcs may not work particularly well. in the short term, elcs in china should consider focusing on law reform, education and broader advocacy initiatives to develop something of a movement of relevant material and resources. emerging elcs across several universities might be joined together in some collegiate way, for instance, through a chinese association of elcs. the collective could meet regularly to discuss different approaches to pedagogy and community service around environmental law as well as connect with elcs throughout the rest of the world. in terms of a way of delivering such a model, chinese universities would do well to avoid expensive ‘in-house’ approaches where the costs and risks of the clinic are absorbed by the law school. on the contrary, law schools should consider collaborating, on a trial basis, with external established organizations such as china’s global environment institute (gei), friends of nature, natural resource defense counsel (nrdc), institute of public & environmental affairs (ipe), or wwf-china. these organizations (particularly the domestic ngos) can be effective partners in the experiential learning experience for students, as well as help to develop effective curriculum content in cle more generally. indeed, recent empirical research has suggested that ‘curriculums designed in cooperation with [ngos] can better solve the dilemmas’ faced by china’s current environmental law courses.[footnoteref:80] partnerships would of course need to be cognizant of recent changes to overseas ngo funding and collaboration laws in china.[footnoteref:81] although many of the larger ngos are based in beijing or shanghai they may have regional offices or related groups working in other cities. online collaborations (i.e. cyber projects) could also be an option for rural and remote places so the university does not have to pay for the cost of student travel. [80: pei pei he, above n 5.] [81: see fulda, above n 76.] the advantages of an external education-reform model might include: · the ability to produce research or other outputs over a planned period (one or two semesters); · access to existing resources on topical and ‘real life’ issues that affect a variety of people; · the opportunity for students to work across several related disciplines (for instance, science, policy and media); · the ability of the law school to control assessment and supervision in a defined period (including developing student skills in project planning) but not necessarily of the content of the work; · the opportunity to undertake team work which would simulate student practice post-graduation; · the ability of students to work remotely and in their own time without constant client, partner or; · the chance for students (and the university) to reference results of their work (for their resume). additional factors for consideration in addition to the type of model considered appropriate (type a, b and c), there are several specific factors that should also be canvassed. a summary is included in table 3 below. table 3 relevant considerations when establishing an elc in china consideration relevant questions funding: how will the elc be funded? would a trial period be beneficial? how many staff are needed to run the elc? will they be part time or full time? what other resources are needed (computers, texts, translation services etc)? can the elc be ‘built on’ to an existing initiative? supervision: who will supervise the students from an assessment point of view? who will supervise and provide feedback on their substantive work? do guidelines need to be developed? students: how many students will be involved? will they be postgraduate or undergraduate? will the course be mandatory or optional? what length of ‘university’ time will the clinic run for? (one semester or two?) what will be the form of assessment? how will the course be ‘marketed’ to potential students? confidentiality: how will issues of confidentiality and privacy be managed? what happens when students work offsite and may have access to confidential data or systems? focus: would a specific area of law be helpful to look at (water, soil, air pollution, biodiversity etc.)? what scale could the clinic cover (local, regional, national, international issues)? evaluation: how will the clinic be evaluated by supervisors and course coordinators? how will the perspectives of students, supervisors, clients and partner organizations be evaluated? impact and outputs: what scholarly or other outputs can be gained from the elc? can the clinic be built around a research agenda, for instance, ‘access to environmental justice’ in china? linkages how can the elc link with other organizations in the community? how can it link with government? is there the possibility of students doing government work through the elc? how could elcs ‘talk’ to each other? these considerations were generated from the general literature on cle and the workshop experiences undertaken by the author and the clinic students. best practice guidelines are also available online which give excellent advice regarding student assessment and other issues.[footnoteref:82] [82: in australia see: evans, a et al, best practices: australian clinical legal education (australian government, 2013). in the us, see: stuckey, r, best practices for legal education: a vision and a road map, 2007.] conclusion further research, particularly of an empirical nature, is needed to realize the full potential of specialist elcs in china. certainly, there are many environmental challenges facing china and cle provides a small but important part of that solution. one of the most important contributions seems to be for elcs to operate as a basis to assist in capacity building and inspiration of new ideas around environmental challenges for the future. universities can be an integral part of that drive, particularly through the law school. as stern notes, elcs can act as ‘portals’ in this way – a mechanism for generating new ideas about how to tackle the country’s most urgent environmental problems.[footnoteref:83] a more pressing question then arises: what model might work best for such a program? the arguments in this paper suggest although china’s judicial and legislative systems are developing at pace, there are significant barriers to a us-style litigation (type a) clinic. these include: the need for constant funding; the complexity of environmental evidence; the length of environmental hearings; travelling to and from the court; and the politically sensitive nature of cases (see for instance, the tulane law school example). for these reasons, this paper suggests that an education-reform elc model (i.e. a type b model) might be best suited to chinese law schools. it is further suggested that such a model might be best undertaken in external mode in collaboration with domestic ngos in china. [83: stern, above n 68, 166.] 122 123 373 clinical legal education in croatia – from providing legal assistance to the poor to practical education of students barbara preložnjak 1. establishing the legal clinic in zagreb – historical background although clinical legal education has a long tradition in common law countries, the countries of the continental european legal system, to which the republic of croatia (hereinafter croatia) belongs, have recognized its importance in the last few years� the first established legal clinic in croatia was the one of the faculty of law at the university of rijeka� it has been implemented as part of the curriculum for the academic year 1996/1997 and offered to the fourth year students as an elective course entitled “clinic for civil law”�1 within the rijeka clinic, law students were able to acquire theoretical and practical knowledge, by resolving hypothetical cases, under the supervision and with the support of teachers, lawyers, judges, notaries public and state attorneys�2 in 2002, with the support of the institute open society from budapest, the faculty of law at the university of osijek established a legal clinic in the form of practical training for students of the third and fourth year of legal studies�3 4 by participating in the clinic’s activity, students of osijek law faculty helped provide legal aid to citizens of lower economic status� this included help in providing general legal information and legal advice, as well as help in covering procedural costs 1 barić 2004, p� 950 2 ibid� 3 jelinić 2008, p� 183� 4 informations about the legal clinic at the faculty of law, university of zagreb are available on the website: http://zakon�pravos�hr/klinika/ (05� 05� 2012) 374 international journal of clinical legal education issue 19 from the funds donated to the clinic�5 the lack of financial means that were needed for daily expenditures meant that the legal clinic in osijek was temporarily closed� nowadays, faculty members of osijek law faculty are trying to solve financial problems and to continue previous good practice in providing legal aid to the poor citizens� the adoption of the legal aid act6 in 2008 and legal standardization of legal clinics as one of the authorized providers of legal aid, encouraged the establishment of two more legal clinics�7 in 2009 and 2010, the legal clinic of the faculty of law at the university of split and the legal clinic of the faculty of law at the university of zagreb were established, which now actively participate in the system of providing free legal assistance to socially vulnerable croatian citizens�8 the zagreb law faculty legal clinic is distinguished by the fact that in its work the students are directly and actively involved in providing legal aid to underprivileged citizens, with professional assistance and supervision of academic staff and legal practitioners�9 in practice, this means that students have a real opportunity to participate in providing legal aid by solving legal cases in their social context� this challenges students to deepen their knowledge on the application of legal regulations in concrete cases and provides them with an opportunity to acquire practical skills in choosing the best strategy to resolve cases in the best interest of their clients�10 2. zagreb legal clinic – an important contribution to legal education and the preservation of equal access to justice in accordance with the ordinance on the study, the legal clinic study is defined as a form of teaching in which students, under the supervision of faculty staff, provide free legal assistance in practical legal matters�11 legal clinic represents, along with practical exercises and simulated trials, one of three forms of practical training in the ninth semester of the educational curriculum, at a jelinić 2008, p� 184� fifth year of legal studies�12 student participation in the work of legal clinics is 5 jelinić 2008, p� 184� 6 legal aid act (zakon o besplatnoj pravnoj pomoći) (narodne novine rh (official gazette) 62/08, 44/11, 81/11; hereinafter: claa) 7 “higher education institutions that conduct university studies in the scientific field of law may, through legal clinics, and in accordance with its regulations, can provide primary legal aid …” see: čl� 14� zbpp’08 in 2009 legal clinic of the faculty of law, university of split issued two orders (vouchers)� see report ministry of justice 2009� 8 in 2009 legal clinic of the faculty of law, university of split issued two orders (vouchers)� see report ministry of justice 2009� for the period of 2010 there is no availabe data regarding applications for legal aid received legal aid beneficiaries� see report ministry of justice 2010� 9 legal clinic was founded at the faculty of law, university of zagreb, in october 2010� in the academic years 2010/2011 and 2011/2012 around hunderd studends joined legal clinic in providing legal aid under supervision of thirteen academic mentor� see more on website: http://klinika�pravo�unizg�hr/� (5�5�2012) 10 see ibid� 11 art� 14� a�, para� 1� ordinace of study (pravilnik o studiju) available on website: http://klinika�pravo�unizg�hr/ sites/default/files/pravilnik_o_studiju�pdf 12 see law study program, curriculum for ix semester available on website: www�pravo�unizg�hr/diplomski_ studij/5�godina/nastavni_plan?_v1=ckipgg_h0qgu0cwjvwovgawnrlbp2a_roltuulzyi6gzzczxqmljvlhyzb 9q659usnn9jmmfg-q0g7pmai1_ga==&_lid=22629#news_22629 375 evaluated as equivalent to six hours of work per week during one semester, and equals 10 ects credits�13 students who participate in the work of the legal clinic are primarily those who meet the conditions prescribed by the study program, i�e�, the students who are authorized to enroll at least 10 ects credits in the ninth semester�14 by working in the clinic, students provide legally allowed forms of legal aid i�e� they provide citizens with general legal information, legal advice and prepare written legal opinions, in accordance with the study program and legal aid act�15 students are not allowed to directly represent clients in the court, but they may attend the hearings and, within the work of legal clinics, they may assist persons authorized to represent clients in the court�16 students provide legal aid to socially vulnerable citizens but, in accordance with the ordinance on the study, they are also authorized to provide legal aid in various kinds of legal cases, which are of great importance for gaining practical knowledge�17 students who enroll in the legal clinic go through several stages and forms of clinical work� during their clinical practice students are obliged to attend introductory seminars, where they gain knowledge on the technique of receipt and processing of legal cases� after finishing introductory seminars students take their daily duties in residential clinic where they work in groups in order to provide legal aid to citizens who have applied for clinical legal aid�18 although students are obliged to work in the group, they also may take individual research regarding preliminary processing of cases�19 in residential clinic students have at least one meeting per week of working groups, where they discuss on results of clinical work and problems with which they are facing during their clinical practice�20 at least once a month student and clinical leadership hold plenary meetings with the aim of discussing organizational and strategic issues of clinical work such as enrollment of new students, new projects of cooperation with ngos and other regional legal clinics, planning the schedule for providing legal aid in external (field) legal clinics, etc�21 beside the work in residential clinic, students are obliged to work in an external (field) clinic, where they provide legal aid outside the residential clinic, in areas of croatia where legal aid is most needed�22 13 ibid� 14 the legal clinic provides legal aid to citizens regarding their various legal problems so there is a need for ensuring the continuity of the clinical work� this is possible only if we ensure the continuity of theoretical and practical training of students involved in providing legal aid throughout all academic year� in accordance with this need it is very important to enrol in clinical trainings a number of students who have already finished the obligatory part of clinical legal education and are willing to stay and help in further development of clinical legal education� see uzelac 2010�, p� 3� 15 art� 14� a� st� 2� ordinance of study� see: http://klinika�pravo�unizg�hr/sites/default/files/pravilnik_o_studiju�pdf; see also: art� 14� para 2� claa 16 ibid� 17 art� 14� a� para� 3� ordinance of study� see: http://klinika�pravo�unizg�hr/sites/default/files/pravilnik_o_studiju� pdf; see also: art� 14� para 3� claa 18 see uzelac 2010, p� 3� 19 ibid� 20 ibid� 21 ibid� 22 ibid� clinical legal education in croatia – from providing legal assistance to the poor to practical education of students 376 international journal of clinical legal education issue 19 the segment of the clinical work which comprises practical resolution of legal cases, in the form of providing legal aid, represents a significant contribution not only to legal education, but also to the community� by providing general legal information, legal advice and by assisting in the preparation of documents in various types of procedures for individuals with low income, students for the first time during their studies take responsibility for the resolution of actual cases� besides the opportunity to apply theoretical knowledge in practice, the contribution to legal education of students of the faculty of law at the university of zagreb is achieved through international projects� particularly noteworthy, in this regard, is the project “support to setting up of the legal clinic for the zagreb faculty”, achieved in cooperation with the british embassy� 23 this valuable project enabled the exchange of knowledge and experience between legal clinics of the law faculties in newcastle and manchester, and legal clinic of the law faculty in zagreb, with the goal of the improvement of croatian clinical legal education and the improvement of clinical curriculum�24 3. organization of clinical work 3.1. organizational structure of the legal clinic the ordinance on the study prescribes the organizational structure of the legal clinic, according to which the clinic is governed and its work coordinated by the head of the clinic (clinical director), who is law professor and member of faculty�25 the administrative affairs of the clinic are carried out by two assistant managers with the help of two clinic administrators, who are appointed amongst students�26 all the important decisions on the provision of legal assistance in specific cases are brought independently by students� strategic questions about the direction of clinical actions, organization and other decisions that require the engagement of additional resources or work, are decided on joint meetings by students in agreement with the clinical director, his deputies and assistants, academic mentors�27 28 the clinic has clinical groups that serve as working groups� they are independently formed in accordance with characteristics of specific cases and areas to which they pertain�29 in the beginning 23 legal clinic in the period 2011 – 2012 recorded several projects that gave her the possibility of cooperation with foreign partners and acquire new knowledge and experience regarding the clinical legal education� beside the project with british embassy the most interesting projects are: “public and private justice� exchange program between students in london and oslo “with norwegian embassy,” assistance mechanism for effective social integration of roma and people with disabilities “with finish embassy�� see http://klinika�pravo�unizg�hr/ medunarodna-suradnja-i-pomoc (5�5�2012) 24 see http://klinika�pravo�unizg�hr/medunarodna-suradnja-i-pomoc (5�5�2012) 25 art� 14� b� para� 2� ordinance of study� see: http://klinika�pravo�unizg�hr/sites/default/files/pravilnik_o_studiju� pdf 26 uzelac 2010, p� 3 27 meetings of clinicians are held monthly in the form of the small council� the clinical director, his deputies, assistants, academic mentors, administrators and students which represent clinical groups discuss important questions of clinical organization, collaboration with civil society organizations, government agencies, legal practices, as well as presenting and analyzing the performance achievements of students in providing of legal aid� also at the meetings current difficulties in the work with which students and their mentors meet are discussed with the aim of proposing concrete suggestions for their successful resolution� 28 uzelac 2010, p� 3 29 ibid� 377 of its work or during the academic year 2010/2011, the clinic was operating through three working groups: civil and family law group in which the cases concerning the property and status were handled; administrative and labor law group in which the cases concerning labor and social issues were handled; and criminal law group in which the cases concerning criminal implications in the broader sense (criminal, misdemeanor, disciplinary and similar cases) were handled�30 however, since this classification of the working groups was too general and less client oriented, at the end of academic year 2010/2011 a new classification of working groups was made� thus, the clinic now operates in eight working groups: a group for asylum seekers and foreigners, a group for antidiscrimination and rights of minorities; a group for the rights of children and family support; a group for protection and assistance of crime victims; a group for protection of workers’ rights; a group for protection of patients’ rights; a group for pr; and a group for special cases and projects� 31 3.2. mentoring the clinic has academic mentors, chosen among the professors and faculty associates, depending on their interest and knowledge in specific matters of significance for the clinic�32 academic mentors monitor the work of their clinical groups, they advise students regarding the direction of their research in solving the legal cases and discuss with them various legal issues that are needed for successful provision of legal aid� although mentors are involved in students work, they are not allowed to solve the cases instead of the students nor are they allowed to impose on students their legal opinions�33 in addition to academic mentors, the students are also mentored by ‘senior’ students who, after finishing one semester of active work in the clinic, continue to volunteer in the clinic�34 external mentors, selected on a voluntary basis among interested members of the legal profession (lawyers, lawyers in ngos and other legal professionals) also participate in activities of the clinic�35 they help students with the practical training, mainly by participating in the reception and analysis of specific cases (receiving instructions from the client, identifying the main issues and advocacy strategies, etc�)�36 so far, the legal clinic has successfully cooperated with several attorneys specializing in providing legal assistance in various aspects of law, lawyers working in ngos and bodies of state administration� 3. 3. residential and external clinic students gain practical experience by working in a residential clinic at the faculty and external clinics outside the faculty, on the basis of agreements with organizations, institutions and persons authorized to provide free legal assistance� in the residential clinic the students receive citizens’ requests for legal aid via phone, e-mail and in person by citizen’s visits to the premises of the clinic� regardless of the ways in which citizens 30 uzelac 2010, p� 4 31 see http://klinika�pravo�unizg�hr/organizacijska-struktura (5�5�2012) 32 uzelac 2010, p� 4 33 ibid� 34 ibid� 35 ibid� 36 ibid� clinical legal education in croatia – from providing legal assistance to the poor to practical education of students 378 international journal of clinical legal education issue 19 seek legal aid in the clinic, the student on duty takes the case, and, on the basis of standardized questions, enters the basic information on the case and clients (name and surname, contact information, financial status and motivation for addressing the clinic, the nature and basic data of the case, the requirements and interests of the client, etc�) in the database� based on the information gathered by the student on duty, the case is assigned to one of the working groups, within which one student is appointed as referent in charge of the case� exceptionally, for complex cases it can be determined that the case is assigned to more students as referents, between which there should be a clear division of tasks� the task of the referent comprises a preliminary review of the case and the presentation of his proposal at the meeting of the working group� his proposal must include an assessment on whether the clinic should get involved and provide some form of legal assistance (self-protective need of the client, evaluation of individual and social need for legal assistance, the suitability of case for the legal clinic and the chances of success)� for cases which are assessed as eligible for legal assistance, the student referent prepares a preliminary analysis on the basis of which a form of legal aid will be proposed, the actions which the clinic shall undertake and a draft of the contents of legal advice or other document which would be prepared for the client� all the proposals made by the student referent must be presented to the working group in charge, which collectively reaches a decision on all important issues (accepting or refusing cases, the form and content of legal aid)�37 even though the decision of the working groups is autonomous, it is liable to the quality control of the academic mentors�38 the intervention of the mentors in the merit of the content of provided legal aid is limited to cases in which the working group cannot reach a decision on its own, so they need an expert advice regarding the direction or deepening their research regarding the successful provision of legal aid�39 in any event, mentors encourage active and independent research and responsible collective effort of working groups, and, in that respect, refrain from providing legal aid instead of the students�40 based on the decision of the working group, the referent acts accordingly (i�e� finishes the text of the legal advice) and contacts the citizen who demanded legal aid�41 the provided legal aid is referred to at the next meeting of the working group, after which a decision on further acts in the case or closing of the records follows�42 apart from the residential clinic, students can gain practical experience by giving legal aid in external (field) clinics, settled in places with a greater need for free legal aid (poor communities, prisons, detention houses, etc�)�43 students who take part in the work of the clinic can also organize public debates, contact competent authorities, and inform the public of their work and the problems they face�44 as a part of the project led in cooperation with the british embassy, the clinic took part in the organization of two round tables: ‘’reform of legal aid system – the future of legal advice?’’, 37 ibid� 38 uzelac 2010, p� 6 39 ibid� 40 ibid� 41 ibid� 42 ibid� 43 uzelac 2010, p� 4 44 ibid� 379 in 2011, and ‘’promoting effective clinical legal education and discussion and workshop’’, in 2012� in addition, within the framework of the international project ‘’assistance mechanism for effective social integration of roma and people with disabilities’’ launched in 2011 and financed by the finnish embassy, the students of the legal clinic started the ‘’bridge the differences’’ project a charity program aimed at collecting money and material resources (food, clothes, shoes) for underprivileged groups of the roma ethnic minority in croatia� 3.3. malpractice insurance the legal clinic of the law faculty, university of zagreb aims to provide legal aid based on the highest professional standards� thus, a contract has been signed with an insurance company with the aim of insurance against malpractice damage� apart from what has been mentioned about providing legal aid, all users are warned that ‘’the education and training of students is an integral part of the purpose of the clinic, and that the legal aid offered, although composed in good faith, is the result of their work and not the work of the institution or its academic staff and associates�’’45 also, for certain forms of legal aid the users of the aid must provide a written statement about being informed of the previously mentioned circumstances and give a written consent regarding the limiting of the responsibility of the clinic only for the damage done by willful miscounseling�46 3. 4. funding the legal clinic of the law faculty, university of zagreb provides the end user with legal aid free of charge�47 however, the user may, in specific cases and depending on their financial resources, be asked to bear certain expenses in the process of exercising his/her rights, such as evidence gathering costs, costs of external legal representation, costs adjudged to the opposing party in the case, etc�48 the clinic is financed from the budget of the law faculty, university of zagreb, but the funds are gathered from other sources as well, such as the projects within the university of zagreb, contracts with the ministry of justice49 based on the free legal aid act and the projects with international institutions, as well as foreign and international organizations�50 45 ibid� 46 ibid� 47 ibid� 48 ibid� 49 in 2010 the legal clinic received 15,000�00 hrk out of 100,000�00 hrk it asked from the project financing of free legal aid provider from the ministry of justice, that is, the state budget� but at the end of the project period (the end of 2010), the clinic was obligated to give back all the allocated funds despite the fact that the so called ‘’order’’ was used to provide legal aid in two cases outside the system, and that a major part of the funds that exceed 15,000�00 hrk was spent on the equipment of the legal clinic and work training� for the project period of 2011, the legal clinic was not awarded funds from the state budget, which the ministry of justice gathers yearly based on an invitation for tender� therefore, the legal clinic is fully financed from the faculty budget and the projects in cooperation with foreign institutions� 50 until now, the legal clinic of the law faculty, university of zagreb has succeeded in winning projects with the british embassy and the norwegian embassy, through which it will establish valuable contacts with renowned legal clinics in great britain and norway� see http://klinika�pravo�unizg�hr/medunarodna-suradnja-i-pomoc (20�7� 2012) clinical legal education in croatia – from providing legal assistance to the poor to practical education of students 380 international journal of clinical legal education issue 19 4. the impact of clinical legal education on the more efficient exercising of croatian citizens’ right to judicature the fact that student work in the legal clinic of zagreb law faculty is not just ‘’a figure of speech’’, but that clinical legal education benefits the broadening of the practical knowledge of students, is supported by statistical data on actual clinical accomplishment in providing legal aid� in the academic year of 2010/2011, 137 cases were registered, out of which 58 were civil cases, 24 criminal cases, 27 administrative cases and 28 medical cases� in the winter term of 2011/2012, there were a total of 232 cases, out of which 172 were civil cases, 10 criminal cases, 36 administrative cases and 14 medical cases�51 in march 2012, the first month of the summer term of 2011/2012, there were a total of 64 cases, out of which 40 were civil cases, 14 administrative cases and 7 criminal cases� 52 in may 2012, the first month of the summer term of 2011/2012, there were a total of 44 cases, out of which 30 were civil cases, 11 administrative cases and 3 medical and in june there were 28 cases out of which 23 were civil cases, 5 administrative cases and 0 criminal cases�53 5. conclusion clinical legal education is a novelty in croatian law schools curriculums and poses new challenges to law faculties regarding the improvement of student education� apart from its significant role in legal education, existence of legal clinics is also very important in terms of enhancing the legal aid system by broadening the cycle of legal aid providers to which underprivileged citizens can turn when they are in need of legal aid� moreover, clinical legal education has a positive impact on the strengthening of public policies of exercising constitutional principles of equality before the law, the right of access to justice and a fair trial within a reasonable period�54 these important goals, which clinical legal education aims to achieve, are closely linked and should be constantly improved by powering the law schools curriculums through the process of learning from best clinical legal practices� therefore, to maintain the positive development of the croatian clinical legal education, law faculties have to continue to enhance the awareness of students and faculty members on the need of continuous empowerments of clinical curriculums� that is the only way to keep the track with development of modern clinical legal education which aims to support students interested in gaining theoretical and practical experience through provision of legal aid in the interest of the public benefit�55 51 see http://klinika�pravo�unizg�hr/broj-i-vrsta-predmeta 52 ibid� 53 ibid� 54 uzelac 2010, p� 2 55 ibid� 381 literature: barić 2004 sanja barić�, pravna pomoć i neprofitne organizacije u republici hrvatskoj (legal aid and unprofit organizations in the republic of croatia), zbornik pravnog fakulteta sveučilišta u rijeci, vol� 25�, br� 2�, 2004� jelinić 2008 zvonimir jelinić, ostvarivanje prava na pristup sudu kroz sustav besplatne i subvencionirane pravne pomoći (exercising the right of access to courts through the system of free and subsidized legal assistence), zagreb (master thesis), 2008� report ministry of justice 2009 report on the exercise of the right to legal aid and expenditure for the year 2009 (izvješće o ostvarivanju prava na besplatnu pravnu pomoć i utrošku sredstava za 2009�godini), ministry of justice (ministarstvo pravosuđa), zagreb, 2010 (text available on the website: www�pravosudje�hr/ izvjesce-2009) report ministry of justice 2010 report on the exercise of the right to legal aid and expenditure for the year 2010 (izvješće o ostvarivanju prava na besplatnu pravnu pomoć i utrošku sredstava za 2010�godini), ministry of justice (ministarstvo pravosuđa), zagreb, 2011 (text is available on the website: www�pravosudje� hr/izvjesce-2010) uzelac 2010 alan uzelac, pravna klinika pravnog fakulteta sveučilišta u zagrebu koncept programa ustrojstva i rada (legal clinic of the faculty of law, university of zagreb the concept of program of its organization and operation), 2010 clinical legal education in croatia – from providing legal assistance to the poor to practical education of students 382 international journal of clinical legal education issue 19 3 foreword foreword welcome to the seventeenth edition of the journal� eagle eyed readers will have noticed that we have switched from describing the journal via season and year to using numbers for the journal� this is to assist librarians and others in tracking sequential volumes� the ijcle conference, durham, england, 11-13th july 2012 a reminder of this conference in durham� i look forward to seeing old friends and making new ones from around the world� for more information please visit www�ijcle�com� in this edition ross hyams and faye gertner’s article recognises that the environment in which lawyers practice is changing rapidly and, in many jurisdictions, a multidisciplinary approach is becoming more important alongside a move away from the adversarial paradigm� they explore the benefits of students working in a truly multidisciplinary environment and some of the tensions – including the tension between the potential role of the lawyer as zealous advocate as against models that other professionals – such as social workers – follow� the authors also consider whether the student lawyer’s ability to respect client autonomy can be undermined by working in an environment in which those such as social workers have a primary aim to protect the client’s best interests (possibly undermining a client’s freedom to choose unwisely)� having explored how organisations might work together and some of the resourcing issues, the paper finishes by holding out the prospect of further research into the pedagogical benefits of establishing a fully fledged multidisciplinary clinic at monash university through an initial pilot study� professor tony foley, margie rowe, vivien holmes and stephen tang describe their research into the challenge which new lawyers face in the transition from university to professional practice� the paper describes an important small pilot study undertaken by the authors into the experiences of eleven newly admitted lawyers in the australian capital territory� the authors conclude from this early research that there are three factors that are important to developing professional identity� they go on to ask how clinical legal education programmes can assist students by beginning to address these factors prior to entering professional practice� there is a surprising dearth of research in this area and this study provides an important wake up call to clinicians and the profession as to the need for far more investigation� for those of us who are clinicians, the more we know about the key issues for early practitioners, the more we can design clinic around assisting students to make the transition� this initial research adds to our understanding of how clinic can help prepare students to become successful reflective practitioners� the clinical practice section of this edition of the journal focuses on africa� there are two articles considering the (rapidly growing) nigerian clinical experience� s mokidi and c agbebaku argue that there are significant deficiencies in the academic and vocational education for prospective lawyers 4 international journal of clinical legal education issue 17 in nigeria� they argue for the introduction of clinic at not just the final one year vocational study stage but also during the three year academic stage� they also recognise some of the barriers to such a project� those barriers will not be unfamiliar to clinicians from a range of jurisdictions� kevwe omoragbon’s paper moves us from the general to the specific, as she considers the women’s law clinic at the university of ibadan� the clinic is a collaboration between the law clinic and health care centres – particularly focused on improving healthcare by alleviating legal stressors� inevitably these revolve around adequate maintenance, child custody issues and welfare� clear benefits from the collaboration have arisen for students, medical professionals and of course clients� it is interesting that in the nigerian setting there is the move toward non-adversarial solutions to legal problems, adding further weight to hyams and gertner’s point in their paper in this edition� it is clear that multidisplinary partnership is a growing trend and there must be scope for those pioneering these developments to learn from the experience and research being conducted in countries as diverse as nigeria, australia and the us� professor stephen rosenbaum also looks at the african experience� this time in togo� he gives an in-depth account of his visit to the country as part of general efforts to increase access to justice through providing free legal assistance� his detailed diary cum essay gives an insight into the role an outside consultant can play when asked to assist for a short period in a developing country such as togo� clearly there are limitations to the role but there is a clear impression that professor rosenbaum was able to play a part in establishing a dialogue about the creation of student law clinics and other forms of free legal service� his paper ends with seven tips for the short term consultant� i look forward to the opportunity to meet with many of you in durham in july to continue sharing our experiences and insights from our practice as clinical educators� jonny hall editor 4 reviewed article – teaching and learning in clinic a study into situated learning through community legal companionship ben waters, canterbury christ church university jeanette ashton, university of brighton[footnoteref:1] [1: ben waters is senior lecturer in law at canterbury christ church university, and jeanette ashton is senior lecturer in law at the university of brighton, ] abstract against the background of the current graduate skills agenda and its considered importance in relation to a uk law degree, this article considers the value of the clock community legal companion scheme, a collaborative social justice project involving law students, legal services providers, third sector advice agencies and law courts based in two areas of the country namely; canterbury and brighton. in recent years, the uk government has significantly cut civil legal aid in areas such as housing, family and welfare benefits, with a view to easing the strain on the deficit. these cuts have been opposed by many, including lawyers, who have raised concerns that the most vulnerable within our communities could be left unrepresented in court and as a consequence an undue burden placed on our civil justice system. clock therefore provides an opportunity for those within our communities who are caught in the so-called ‘justice gap’, to gain support and guidance from law students when they attend court unrepresented. the findings of a small-scale research project into the perceived benefits of community legal companionship, conducted at two uk law schools; canterbury christ church university and the university of brighton, indicate that the socio-legal experiential learning opportunities for undergraduate law students presented by such initiatives, are also valuable in terms of legal skills acquisition. the research shows that the scheme not only enables law students to use their legal knowledge for the benefit of their local community, but also through analysis of their own perceptions, demonstrates how such a community-based project can provide undergraduate law students with valuable employability skills. experiences of setting up a community legal companion scheme, together with an overview of how the scheme operates in the canterbury and brighton county courts, as well as students’ reflections of participating as community legal companions drawn from the empirical qualitative research, are evaluated in this article. introduction the number of self-represented litigants or litigants in person (“lips”) arriving at court has risen steadily for over a decade. interestingly, the rise in the lip has coincided with implementation of the access to justice act 1999, introduced to promote just that “access to justice”. the reality however is that through various government initiatives and further legislation, most notably the legal aid sentencing & protection of offenders act 2012 or laspo, aspects of the 'welfare state' have been systematically dismantled. this has included the introduction of competitive price tendering for legal aid contracts and the incremental withdrawal of legal aid for many areas of legal advice and assistance within civil justice and perhaps most notably private family law. the reduction in local authority funding of the advice sector, the adverse impact on many people due to the prevailing economic climate, the rising cost of legal services and the reduction in court resources, has meant that a whole raft of uk citizens has been 'marginalised' and now fall within what is commonly termed the ‘justice gap’. as highlighted in a 2017 law society of england and wales report this has given rise to an increased number of lips who have been unable to either afford legal advice or indeed have the awareness to be able to access the few legal services still available which provide pro bono or limited fixed fee advice and assistance. [footnoteref:2] reports from 2016 show that of all the cases defended in the county court, both the claimant and the defendant were legally represented in just 56% of them. neither had representation in roughly 18% and 26% of cases were conducted with just the claimant being represented. consequently, of all the proceedings commenced in the county court during 2016, 44% of those cases involved at least one party who was a self-represented litigant.[footnoteref:3] whilst reliable pre-laspo data on litigants in person are scarce, most available data concern lips in the family courts, although the national audit office (nao) has claimed that the increase in lips has also been evident in the civil courts as well.[footnoteref:4] the nao observed that since the implementation of the government’s 2012 reforms, there had been increases in the numbers of cases in the family courts where either or both parties did not have legal representation. this has included a 22% increase in cases involving contact with children (children act private law matters) in which neither party was legally represented, a 30% increase across all family court cases (including those that remain eligible for civil legal aid) in which neither party had legal representation and 80% of all family court cases starting in the january–march quarter of 2013-14 had at least one party who did not have legal representation.[footnoteref:5] [2: law society of england and wales “access denied? laspo 4 years on: a law society review” https://www.lawsociety.org.uk/support-services/research-trends/laspo-4-years-on/ (accessed on 28.12.17).] [3: national statistics: civil justice statistics quarterly, available at: https://www.gov.uk/government/statistics/civil-justice-statistics-quarterly(accessed on 13.05.17).] [4: national audit office, implementing reforms to civil legal aid, 20 november 2014, hc 784 2014-15: p.15. in grimwood g.g., house of commons briefing paper number 07113, 14 january 2016, litigants in person: the rise of the self-represented litigant in civil and family cases, p.6.] [5: ibid.] judicial concern about the strain this is placing upon the civil justice system, particularly in the area of private family law, is evident.[footnoteref:6] initiatives have therefore been explored and implemented by the ministry of justice through investment in personal support units (psu), lawworks, law for life and the royal courts of justice advice bureau, in an attempt to remedy what is undoubtedly a growing problem for the civil justice system.[footnoteref:7] due to closure of many charitable advice services and law centres during the recent period of austerity (there are now only 46 law centres in the uk compared with more than 60, twenty years ago),[footnoteref:8] universities have started to fill the space once occupied by legal advice services, which traditionally provided advice and assistance to those most in need and at no cost to the end-user. in 2016 nottingham law school's legal advice centre become a teaching law firm after being granted alternative business structure (“abs”) status by the solicitors regulation authority (sra), the first of its kind in a uk university.[footnoteref:9] [6: see the report of the proceedings of the parliamentary select committee on justice printed on 04.03.15 entitled impact of changes to civil legal aid under part 1 of the legal aid, sentencing and punishment of offenders act 2012. in this report representatives of the family justice council reported to the committee that: "the judicial members of the fjc have all experienced a much greater pressure upon hmcts both in terms of the administrative and judicial staff. unwilling litigants in person take more time and resource from the courts, both administrative and judicial, cafcass and other supporting organisations". the parliamentary report of these proceedings is available at https://publications.parliament.uk/pa/cm201415/cmselect/cmjust/311/31109.htm (accessed on 04.01.18). see also; the law society’s report entitled access denied? laspo four years on: a law society review, june 2017, available at www.lawsociety.org.uk p.2. (accessed on 04.01.18).] [7: ministry of justice, “more support for couples and parents”, available at https://www.gov.uk/government/news/more-support-for-separating-couples-and-parents, in mckeown, p., & morse, s. (2015), litigants in person: is there a role for higher education? edited by richard owen. the law teacher, 49(1), 122-129.] [8: law centres network, available at http://www.lawcentres.org.uk/, (accessed on 13.05.17).] [9: see: https://www.ntu.ac.uk/about-us/news/news-articles/2015/nottingham-law-school-granted-abs-licence (accessed on 13.05.17).] clock is a project designed, among other things, to give keen law students the opportunity to gain valuable employability skills by acting as community legal companions (“clcs”) at local county courts.[footnoteref:10] clock stands for community legal outreach collaboration keele and was initiated by keele law school in 2012 following the introduction of laspo and the reduction of legal aid, which has resulted in the growing numbers of people arriving at court without representation.[footnoteref:11] the project enables law students to become trained up as clcs to provide signposting as well as other guidance and support to those in need and who attend court unrepresented. [10: supra, mckeown, p., & morse, s., note 7, at 123.] [11: full details of the clock project at keele are available at https://clock.uk.net/ (accessed on 13.05.17).] access to justice and laspo: formation of the clock scheme the clock legal companion scheme was developed by dr jane krishnadas within keele university school of law (“keele”) following her work with a local domestic violence organisation ‘voices of experience’. through this work it was apparent that, particularly post-laspo, victims of domestic violence often find themselves navigating a number of legal pathways to resolve for example child arrangements and housing needs, often alongside criminal proceedings. the relationship with ‘voices of experience’ led to requests for assistance in court for litigants who were understandably daunted by the prospect of their forthcoming proceedings. keele set up a pilot mckenzie friend scheme, following which dr krishnadas attended an address delivered by the then president of the law society, lucy scott moncrieff, at the north staffordshire regional meeting on the challenges of meeting unmet community legal needs in the wake of laspo. representatives from the local law society, citizens advice bureau and keele considered the impact of laspo and the so-called ‘justice gap’ on the community, particularly important in stoke-on-trent.[footnoteref:12] they considered the inevitable increased pressures on third sector organisations and the sustainability of the city’s high street law firms, many of which had worked under legal aid contracts providing advice on family and housing law matters, areas most affected by the laspo reforms. [12: one of 20 local authority districts with the highest proportion of neighbourhoods in the most deprived 10% of neighbourhoods nationally on the index of multiple deprivation 2010 and 2015 https://www.gov.uk/government/statistics/english-indices-of-deprivation-2010-technical-report, https://www.gov.uk/government/statistics/english-indices-of-deprivation-2015 (accessed on 03.07.17).] the clock legal companion scheme was developed from that meeting, drawing on the mckenzie friend role, but crucially developing it specifically for law students. [footnoteref:13] although wider discussion of the mckenzie friend role is beyond the scope of this article, concern about the increased use of fee-paying mckenzie friends has been expressed in the legal profession on a number of occasions, and it may be that the role of the law student clc will become increasingly important.[footnoteref:14] the clc role is to provide legal information, not legal advice, to assist litigants with form-filling and arranging papers and perhaps most importantly, to signpost litigants to third sector organisations and legal providers who may be able to provide services under a legal aid contract or fixed fee or unbundled services. where this is not possible, the clc can accompany the litigant into court proceedings under mckenzie friend principles, to provide moral support and take notes for them. as seen in the discussion of the study findings to follow, the clc needs to be organised, professional, able to react quickly and calmly under pressure, and to utilise key communication skills such as listening and empathy in order to build a good rapport with the litigant. there is a recognition however that although the clcs provide invaluable assistance and support, the goal is to secure professional advice even in these challenging times. clock national, based at keele, operates a web-based administrative system (the clock.uk.net national dataset) which is available for recording the information gathered from the service users, the aim being that this data will inform policy on a national level.[footnoteref:15] [13: for discussion of the development of the ‘mckenzie friend’ role which provides support and assistance to unrepresented litigants in court, and the growing concern regarding the proliferation of ‘professional’, fee-charging mckenzie friends and the variation in support provided, see moore, s. and newbury, a. legal aid in crisis: assessing the impact of reform, (policy press, 2017), pp 50-53.] [14: for further discussion on this see: https://www.solicitorsjournal.com/news/legal-profession/barristers/25667/bar-council-mckenzie-friends-should-not-be-allowed-charge-leg (accessed on 10.07.17).] [15: e.g. clock submitted evidence to the bach commission on access to justice, which published its final report in september 2017, available at: http://www.fabians.org.uk/wp-content/uploads/2017/09/bach-commission_right-to-justice-report-web.pdf (accessed on 28.12.17).] clock was born out of a collaborative discussion at the meeting mentioned above, looking at community need, and a collaborative, multi-agency approach is key to its ethos. law schools, charitable organisations and legal service providers work together to provide a holistic service for litigants which, moore and newbury suggest; perhaps highlights the key role that family law solicitors played, over and above purely being purveyors of legal advice, in the amount of both emotional and practical support that they were giving to their clients.[footnoteref:16] [16: supra, note 13, moore, s. & newbury, a., p52. ] since its inception at keele, the scheme has grown and now includes a number of universities with clcs volunteering at courts around the country. all law students at these universities participating as clcs are monitored and insured by their respective universities. they are required to undertake dbs checks and are bound by the clock confidentiality agreement. companions from each institution commit to a certain number of court based help desk hours agreed by their respective institutions during term-time. outside of term-time there is a reduced service, where the clcs who live locally, signpost and arrange appointments depending on availability. clcs are bound to report all community legal companion activities. it is important to recognise that clcs do not provide advice and service users are made aware of this from the outset. a key part of legal companion role is signposting, thus being able to develop close links with legal and third sector partners is essential. pedagogical context experiential learning and the skills agenda in december 2006 the government commissioned the leitch review to identify the uk’s optimal skills mix in 2020 to maximise economic growth, productivity and social justice, and to consider the policy implications of achieving the level of change required. one of its recommendations was to widen the drive to improve the uk’s high skills to encompass the whole working-age population, including preparing young adults for their working lives.[footnoteref:17] high skills can be understood in different national contexts such as quality of employment, training opportunities, and the abilities of individual.[footnoteref:18] it is argued therefore that legal education provides rigorous and academically challenging ‘training’ to produce highly skilled students in order to prepare them for high quality (well-paid) employment. [17: the leitch review p.143, published in december 2006 is available at http://www.delni.gov.uk/leitch_finalreport051206[1]-2.pdf (accessed on 08.06.17).] [18: brown, p, green, a, lauder, h, high skills: globalization, competitiveness, and skill formation: globalization, competitiveness, and skill formation, (oxford university press, 2001).] the most recent review of legal education, the legal education and training review (letr) published in 2013, made suggestions about encouraging law schools to embed practice-skills within the legal education curriculum. the review committee acknowledged the growing levels of interest and activity around work-based learning, apprenticeships, and the re-design of cpd points to a renewed interest in the workplace as a site of learning and source of professional competence. the committee considered this a matter of some relevance to the letr in determining focus and direction of travel. [footnoteref:19] mckeown and morse argue that students are often enthusiastic about engaging in clinical activities and, linked to this make the point that in a competitive market, it is important that universities offer courses and extra-curricular activities, which are appealing and relevant to prospective students.[footnoteref:20] [19: webb, j., ching, j., maharg, p. and sherr, a., legal education and training review (letr), setting standards: the future of legal services education and training regulation in england and wales (london: legal education and training review, 2013). available at http://www.letr.org.uk/the-report/index.html (accessed on 26.05.17).] [20: supra, note 7, mckeown, p., & morse, s., p. 128.] the development of a global clinical legal education movement has been well documented by many commentators with an interest in the field and none better so than by bloch, who acknowledges that the uk’s engagement with clinic has been distinctive because of the educational, professional and social context that has shaped the process of lawyer education and training.[footnoteref:21] it is fair to say that clinical legal education (“cle”), in some form, is progressively becoming a more regular component of undergraduate legal studies in the uk, particularly as the number of law schools has grown.[footnoteref:22] [21: bloch, f.s. (ed.), the global clinical movement: educating lawyers for social justice (new york: oxford university press, 2001), p.7.] [22: supra, note 7, mckeown, p., & morse, s., p. 128. see also carney, d., dignan, f., grimes, r., kelly, g., & parker, r. (2014), lawworks law schools pro bono and clinic report, (2014, lexisnexis uk).] duncan argues for cle at undergraduate level of legal education and his views can be applied quite appropriately to the clock project and the experiential learning opportunities available to students when providing assistance to those who are either ineligible for legal aid or cannot afford to pay for legal advice: it provides the most powerful experience of the real context in which the law operates; it is the most effective way of developing transferable and specific professional skills and it provides a sound basis for ethical practice. it works most effectively when reinforced with built-in requirements for reflection and approaches to curriculum design which expect students to take some responsibility for their own learning. this experience should precede the training contract or pupillage. in designing courses which meet these objectives we can also help with the provision of legal services to those who cannot afford to pay for them.[footnoteref:23] [23: duncan n, ethical practice and clinical legal education, 7 int'l j. clinical legal educ. 7 2005, 7-19, p.19.] it is arguable that the clc role is just as powerful in terms of experience of the real context in which law operates. students immerse themselves in the court environment and have ‘hands on’ contact with court procedure and the operation of court process as a means of dispute resolution. the students are not directly supervised when at court, they have to think for themselves, respond to situations as they arise and take initiative as well as responsibility for their actions. in so doing these law students acquire valuable transferable skills. the role requires recognition of a clc’s ethical boundaries in not providing advice. students assist service users without consultation which otherwise would be the case in a formal advice clinic environment. these are all things which the student can reflect upon. in undertaking these tasks at undergraduate level such law students are preparing themselves for the world of professional employment, whilst at the same time helping to provide the kind of legal services which many service users would have received from legal services providers before the withdrawal of legal aid. the growing interest with which uk law schools and those abroad are treating dispute resolution, alternative dispute resolution (“adr”) and its teaching,[footnoteref:24] provides a perfect opportunity for students to work closely with people who are in dispute and apply practically the theory they have learnt in the classroom. any court proceedings arise from some kind of dispute; whether it be a tenant questioning a landlord’s claim for rent arrears; a relationship breakdown involving domestic violence and/or children’s arrangements or a consumer contract dispute between a retailer and customer. all casework with which clcs provide assistance, involves court service users seeking a civil remedy, which will ultimately achieve a resolution to their dispute in some way or another. research undertaken by the authors at university of brighton and canterbury christ church university (the authors’ study) indicates that students recognise the importance of the role in placing their studies in context. an example of this provided by one participant in the study is as follows: [24: waters b.d., the importance of teaching dispute resolution in a twenty-first-century law school the law teacher 51, 2, 2017, pp.1 and 8.] “currently i am studying family law…and have found that a lot of family cases have been assisted by the clock scheme. this has allowed me to view the theoretical teachings of this module in practice” there are also clear links with many aspects of the legal education curriculum (at both undergraduate and postgraduate level) and at undergraduate level, this includes those foundational and/or core modules such as; english legal system, law of tort, property law, equity and trusts and some optional modules such as family law and intellectual property law. teaching dispute resolution as a defined subject contextualises much of what student clcs learn in such a module, it grounds the subject discipline theory and provides the opportunity for practical skills acquisition.[footnoteref:25] even better, linking assessment to the clc role will enable students to gain academic credit for their work-based learning. [25: ibid, 227-246.] employability from the early part of the millennium, uk higher education institutions (“heis”) have been increasingly charged with promoting graduate employability.[footnoteref:26] this coincided with new labour’s neo-liberal third way education policy drive to create a more educated nation, which in turn proposed to contribute directly to the development and enhancement of the so called ‘knowledge economy’.[footnoteref:27] for hei’s, employability statistics are becoming increasingly more important and their performances are monitored[footnoteref:28] with the performance indicators having implications for league table positioning. [26: knight, p. t., & yorke, m. (2003). employability and good learning in higher education. teaching in higher education, 8(1), p.3.] [27: waters, b. (2013). widening participation in higher education: the legacy for legal education. the law teacher, 47(2), 261-269.] [28: see the higher education statistics agency (hesa) and the employment indicator, which is based on the destinations of leavers in higher education (dlhe) survey https://www.hesa.ac.uk/data-and-analysis/performance-indicators/employment (accessed on 30. 05.17).] the letr recognised that from the student perspective, competition generally for recruitment to the legal profession is likely to remain fierce for the remainder of the decade. the review committee considered that for employers it is likely to remain a buyer’s market in the short-to-medium term, at least for those in the larger firms and in chambers generally, though inter-professional competition for those traditionally perceived to be the ‘best’ candidates is likely to continue to be strong, particularly in the commercial sphere.[footnoteref:29] in 2015 the solicitors regulation authority announced its plans for wholesale changes to the qualification requirements for solicitors and in june 2017 the solicitors qualification (sqe) draft assessment specification was published. this document emphasises the requirement to demonstrate a number of practical competencies at stage 2 of the sqe, including; client interviewing, advocacy/oral communication, case and matter analysis, legal research and legal drafting. elements of all these competencies are present within the clc role.[footnoteref:30] [29: supra, note 19, webb, j., ching, j., maharg, p. and sherr, a., paragraph 3.154.] [30: the sra’s draft assessment specification sets out the indicative design and content of the sqe and is available at https://www.sra.org.uk/sra/policy/sqe/research-reports.page (accessed on 10.01.18).] there is an arguable requirement for those students wishing to enter either branch of the legal profession to enhance their curriculum vitae with extra-curricular engagement, which can then give them an edge in the job application process. community legal companion support provides the kind of graduate profile enhancement which is beneficial in this regard. the authors’ research indicates that students who have been involved with the clock project and lucky enough to be invited for interview (for training contract or pupillage) gain an advantage. some students report that interest had been taken in the role at interview and whilst it cannot be claimed that such experience is the difference between being offered a job or not, it enhances employment prospects immeasurably. one clc participating in the study commented that they had already experienced a benefit; “i’ve already been asked about [clock] at interviews and it is a very interesting talking point. additionally, it enables us to understand the court process better than fellow law students who are not part of the scheme.” whilst recognising the challenges presented to university law schools in attempting to make work experience widely available as one way to redress the problems of differential access to the legal profession, francis recognises that student experiences can be a powerful learning and teaching resource.[footnoteref:31] the authors’ research suggests that a number of students acting as companions and who intend to to pursue careers as either solicitors or barristers recognise this: [31: light, g. & cox, r. learning and teaching in higher education: the reflective professional (2001) 79, in francis, a. (2015). legal education, social mobility, and employability: possible selves, curriculum intervention, and the role of legal work experience. journal of law and society, 42(2), 173-201.] “i want to be a lawyer, i am currently applying for lpcs and having the companion scheme on my cv will be invaluable.” another commented: “i would like to have a career at the bar. clock will support this by giving me a great opportunity and experience which will help me to stand out for future employers, scholarship boards and law schools.” from their qualitative study into perceptions of the role clinical education plays in influencing employability, alexander and boothby found that alumni who had participated in cle were overwhelmingly positive about their experience and continued to reflect on what they had learned there. [footnoteref:32] they also found that the diversity of experiences on entering the legal profession was highlighted by this group, including differing levels of support and supervision. the study also questioned employers who revealed that business awareness was considered to be important from their perspective, together with skills such as communication and self-management, although employers emphasised communication beyond conventional written and oral skills, to include interpersonal skills as being key. these are the kind of skills which are acquired by clcs through participation in the clock initiative and the authors’ study reveals that students generally consider their skills are enhanced. for example, one participant revealed that; [32: alexander, j., & boothby, c. (2016). perceptions of the impact of clinical legal education on employability. srhe international conference on research into higher education, december 7-9 2016] “[being a companion has] helped me to apply skills i already have and to use them in a novel situation e.g. when a litigant comes into the room, you have no advance notice of what s/he will need help with, and it’s essential to be calm, inspire confidence, listen and fully grasp the issues before jumping in.” competition in the north american legal employment market is equally as fierce. in the usa research was undertaken into employment competencies and those acquired through law clinic experience. hamilton reviewed a number of studies on the competencies employers want, and his meta-analysis offers this observation on the employment market for students: in this challenging market for employment, a law student can differentiate herself from other graduates by demonstrating to legal employers that the student both understands the core competencies that legal employers and clients want and is implementing a plan to develop these competencies, including an ability to demonstrate that the student has experience with these competencies.[footnoteref:33] [33: hamilton n., law firm competency models & student professional success: building on a foundation of professional formation/professionalism, 11 u. st. thomas l.j. 6, 26 (2013), in kuehn, r. r. (2015), measuring clinical legal education's employment outcomes. wis. l. rev., 2015, 645-537., p. 663.] the competencies which are required for legal practice in england and wales are specifically expressed in the forthcoming sqe requirements mentioned earlier. the way in which these competencies are enhanced through different kinds of work experience initiatives is acknowledged through research undertaken by ching and henderson.[footnoteref:34] whilst not considered by the researchers and authors of that report (clock was its infancy at the time when the data was gathered), the clc role should also be included in the category of such ‘work experience’ type activities. an example of how participants in the authors’ canterbury/brighton study consider that their role as a clc has contributed to the development of some of these competencies is displayed by this clc’s comment: [34: see the report of ching, j. and henderson, p. pre-qualification work experience in professional legal education, (august 2016) and commissioned as part of the sra’s training for tomorrow project, available at: https://www.sra.org.uk/sra/policy/training-for-tomorrow/resources/workplace-learning.page (accessed on 10.01.18).] “[n]ot only does it look good on your cv, but clock has helped develop key skills for employment: client contact/customer care; organisational skills; professionalism.” the key skills mentioned by this clc broadly relate to the kind of skills which indicate competence as recognised by the sra, and which form part of the proposed assessment approach of the sqe.[footnoteref:35] [35: see supra, note 30.] communities of practice the concept of a community of practice is a group of people who share a craft and/or a profession and was first proposed by cognitive anthropologist jean lave and educational theorist etienne wenger.[footnoteref:36] wenger then significantly developed the concept by presenting a theory of learning that starts with the assumption that engagement in social practice is the fundamental process by which we get to know what we know and by which we become who we are.[footnoteref:37] [36: lave, j. (1991). situating learning in communities of practice, perspectives on socially shared cognition, 2, 63-82.] [37: wenger, e., communities of practice: learning, meaning and identity, (cambridge: cambridge university press, 1999).] in the sphere of legal education it is closely associated with professional ethics and an appreciation that aspirational lawyers will be entering a ‘community of practice’ when acting as legal executives, paralegals, solicitors and barristers. baron and corbin argue for a recognised need for law students to ‘be professional and in turn act like professionals’. they refer to the carnegie report which looked into north american legal education and observe that the report argues that law schools can take specific, concrete actions likely to encourage law students to appreciate that they will be entering the legal profession’s ‘community of practice’. this has relevance not only for australia but also for other common law jurisdictions including the uk.[footnoteref:38] [38: baron p., & corbin l., thinking like a lawyer/acting like a professional: communities of practice as a means of challenging orthodox legal education, the law teacher, 46:2, 100-119, pp.100-101.] situational or situated learning presents real time experience of ethical dilemmas. dewey saw this as exposure to the ‘problematic’ that leads to and is the organiser for learning.[footnoteref:39] students need to also have their moral sensitivities challenged to recognise that there are often “relevant others” who may be affected by legal actions.[footnoteref:40] the authors’ research reveals that legal companionship presents perfect opportunities for students to step out of their ‘comfort zone’ and have exposure the real life situations. for some students this has been challenging, as shown by these clcs’ comments: [39: dewey, j. experience and education, (simon and schuster, 2007).] [40: ibid p.104; and hazard, g.c., jr, “dimensions of ethical responsibility: relevant others” (1992–1993) 54(4) university of pittsburgh law review 965–977, at pp.969–971, in baron p., & corbin.] “at times i have felt overwhelmed by having many service users come in and having to deal with them on my own. it’s also been tough to deal with areas of law that i am not familiar with….” and, “at times it can be intimidating as a law student in providing legal assistance when the service user has a case concerning an area of law you are not fully confident in dealing with or haven’t previously looked into.” it can be argued that the clc role forms part of a ‘community of practice’. companions are introduced to professional ethics and in the context of the clc role, this requires students to recognise that they cannot provide legal advice and this can test their ethical boundaries. constructionist theory is applicable here and theorists such as savery and duffy suggest that knowledge evolves through social negotiation and through the evaluation of the viability of individual understandings. they argue that the social environment is critical to the development of our understanding as well as to the development of the body of propositions we call knowledge.[footnoteref:41] [41: savery j. r., and duffy t. m., in wilson b. g., (1998), constructivist learning environments: case studies in instructional design, (englewood cliffs, new jersey, educational technology publications), p.136. ] on ethics, duncan argues; …….. those dealing with real cases within their educational experience will perforce have come into contact with the ethical issues that are endemic in legal practice and will not have been able to evade them. they will have been under a duty to take decisions and actions…..furthermore, their experience will have addressed ethical issues in a way hard to achieve without clinical experience.[footnoteref:42] [42: supra, note 20, p.16.] community engagement another area to consider is the value of public service community engagement in assisting community members gaining access to justice. as well as an inherent sense of philanthropy associated with voluntary work within the community, it could also be a vital component if some voluntary services are to survive. the authors’ study indicated that students recognise the valuable community role they are playing as clcs, this was evidenced by the responses provided by these clcs who participated in the study: “i wanted to participate because the programme seemed like a great opportunity to gain work experience while giving back to the community.” and, “i feel like the scheme really helps the community and it is a way that i can feel like i am helping as well as it improving my studies.” since 2010, successive conservative-led governments have been keen to establish and promote their “big society” agenda in the uk. whilst this seemingly embraces enterprising proposals to reinvigorate communities through greater autonomy, the initiative has in reality been devastating for some services situated in the voluntary sector that have traditionally relied on funding streams from inter alia local authorities, streams which during the current austerity era have all but dried up.[footnoteref:43] [43: see future funding outlook for councils 2019/20 interim 2015 update, available at: https://www.local.gov.uk/sites/default/files/documents/future-funding-outlook-co-18b.pdf (accessed 28.12.17).] clock in kent & sussex: setting up and practical issues setting up after successfully establishing the scheme in some of the staffordshire courts, the clock franchise was adopted by a few law schools across the country. in addition to keele, there are now 8 universities which operate a clock help desk at their local county court run by law students, including; university of brighton, university of sussex, university of wolverhampton, birmingham city university, salford university, liverpool john moores university, staffordshire university and canterbury christ church university with open justice at the open university, university of leicester and lancaster university having recently joined. for the purpose of this paper, experiences establishing the schemes in brighton (university of brighton and university of sussex) and canterbury christ church university will be focused upon. being aware of some of the work done by the civil justice council, the judiciary, the low commission and others in connection with the growing numbers of litigants in person, the master of the rolls (then lj dyson) and head of civil justice asked mrs justice asplin to take on a judicial coordinating role in relation to lips. a national network of nominated judges for lips was established[footnoteref:44] and the initiative in the southeast region was therefore initially driven and by kent and sussex family judges. in brighton, the family court judges specifically asked for the introduction of clock and hhj mary lazarus based at medway county court, the nominated lip judge for the kent area, was supportive of approaches made through canterbury, to establish clock in the canterbury law courts. [44: see the civil justice council’s summary of the third national forum on access to justice for litigants in person, november 2014, available at: https://www.judiciary.gov.uk/wp-content/uploads/2011/03/web-summary-of-lip-forum-2014.pdf (accessed on 11.01.18).] both canterbury christ church and the university of brighton and the university of sussex coordinated meetings in their respective areas attended by potential stakeholders including the judiciary, court staff, and representatives from the legal services community and third sector agencies. the initiatives gained momentum and the help desks in these courts became operational in january 2016 (brighton) and may 2016 (canterbury). staffing of these desks requires the assistance of willing student clcs and through training programmes adapted from the model designed by keele, clcs were trained up by the clock partners and academic leads over a five day period. sussex and brighton collaborated and canterbury christ church conducted their own training. training varies according to the needs of the communities in the various clock hubs, but will typically include training by local law firms on family law issues and court procedure and by local third sector organisations on issues which litigants may experience such as domestic abuse, housing and debt problems. training also includes a visit to the local court with input from the court staff and judges. the academic leads provide training on legal ethics and experienced clcs assist with simulations based on their experience at court so that new clcs feel as prepared as possible before embarking on the role. the scheme in operation structures were put into place including a rota and a reporting system. a collaborative approach was adopted in sussex where law students from both sussex and brighton universities were recruited for training. the training was delivered in canterbury and brighton by members of court staff, representatives from the local legal service community (law firms and barristers chambers) and third sector agencies who are part of the collaborative partner providers. once trained the clcs are allocated to the court rota by choosing their own slots. service users arrive at the court help desk through a number of different routes including; phone calls, applications via the clock admin system which in turn alerts the companion on help desk duty via email and in brighton there is a separate, dedicated clock email service, monitored by clcs, through which applicants can access signposting and arrange appointments as required. partner providers also refer service users. some who attend court for a hearing are directed to the help desk by court staff. brighton offers a drop-in service during term-time for those who need guidance and signposting recommendations. once it is established by the clcs that a service user requires assistance, the service user will sign a ‘community care letter’ which sets out the limitations of the service and most importantly, that the clcs do not provide legal advice. it may be at that stage that the service user is signposted to a legal aid franchised firm, affordable fixed fee or pro bono service e.g. kent law clinic in canterbury and the sussex family law clinic in brighton. partner organisations most commonly include legal aid providers for private family law, and where applicable, those legal service providers who are prepared to give fixed fee legal advice, mediation providers and charitable support services. the brighton and canterbury research study the small-scale qualitative research study undertaken by the authors at the university of brighton and canterbury christ church university, was designed to determine the value of the clock companionship role for law students in terms of skills acquisition, community involvement and employability enhancement. the intention was to find out what such a social justice project says about experiential learning and what it can do for developing law students’ employability and their readiness for the world of work. all clcs from the university of brighton and canterbury christ church university were invited to participate. they were asked to complete a free text questionnaire (“questionnaire 1”) after the training prior to commencing the role and then a free text follow up questionnaire after the three-month pilot (“questionnaire 2”). responses were explored further in a focus group at each university. in brighton, there were 11 responses to questionnaire 1 from a possible 16 and in canterbury 32 responses from 46, giving a combined response rate of 69%. in brighton, there were 10 responses to questionnaire 2 from a possible 14 and in canterbury 23 responses from a possible 46, giving a combined response rate of 55%. in brighton, 6 undergraduate clcs took part in the focus group and in canterbury 2.[footnoteref:45] acknowledged limitations of the study include the small sample size and recognition that the students who participated were likely to be the most motivated of the group, which may impact on the transferability of the findings.[footnoteref:46] [45: the clock project started later in the academic year at canterbury christ church which meant that the timing of the focus group could not be arranged until after the exam period, which is likely to account for the low number of participants. ] [46: denscombe, m. the good research guide for small-scale social research projects (oxford, oxford university press, 2007), p.299.] methodology following ethics approval, in order to gather the data for this empirical research study, a purposive, mixed-method sampling approach was utilised, consisting of questionnaires and focus groups.[footnoteref:47] [47: ibid pp. 178-183.] questionnaire 1 asked students about their motivations for applying for the scheme; whether they had any previous experience of volunteering; their expectations of training and whether the training had met those expectations; whether they had any concerns about the role; whether they thought volunteering as clcs would support their academic studies and finally they were asked about their career aspirations and whether they thought volunteering as a clc would support those plans. questionnaire 2 asked about the assistance they had provided; what they had most and least enjoyed about being a clc; whether they thought the training had prepared them for the role and anything that could be improved for future cohorts; whether they felt volunteering as a clc had supported their academic studies; whether the role had helped them to develop key skills and whether they felt that being part of the clock project could support their future employability. in the focus groups, the findings from the questionnaires were explored in more depth. research findings:[footnoteref:48] [48: the focus for this paper is on the theme of the value of community participation from the students’ perspectives and these are the findings which are presented and discussed here. the feedback on the training itself and issues regarding the administration of the scheme has been used to improve the project for future cohorts.] the data from canterbury and brighton produced similar themes with no discernible difference between the two cohorts. the data is discussed in more detail below but the key findings were as follows: motivation for volunteering and perceived benefits questionnaire 1, completed after the training but before commencing as clcs , revealed gaining experience and enhanced employability as the biggest motivating factor, with helping the local community closely behind. perceived benefits were cv enhancement and supporting their career plans alongside the development of key skills and support for academic studies. questionnaire 2, completed after three months in the role, and the follow up focus groups, gave the students the opportunity to reflect on their experiences as clcs including what they had most and least enjoyed and any actual benefits. the main findings were as follows: helping people in need and access to justice interestingly, helping people in need was what the students had most enjoyed about being a clc. participants in the focus groups spoke passionately about how volunteering as clcs had given them a real insight into the need in the local community for legal support and how personally rewarding they found being able to provide assistance. they also voiced frustration at the lack of support available and the difficulties lips face in navigating the court system. skills development all the students responding felt that volunteering as clcs had helped them develop key skills, including empathy; the ability to communicate with a range of people; and how to deal with unexpected situations. this was alongside gaining greater insight into the court process such as court forms and the various types of hearings. employability closely linked to skills development was the overwhelming feeling that their experience as clcs would support their future employability. the students felt that the role would help them to “stand out” and be a good “talking point” at future interviews. supporting academic studies most of the students felt that volunteering as clcs helped to support their academic studies, particularly for those who were studying or intending to study family law. many commented on how the experience had helped them make links between theory and practice and some that they could apply the professionalism needed for the role to their academic studies. questionnaire 1: table 1: students’ motivations for applying for the clock scheme (some students provided more than one answer) gain experience / employability 54% help those who really need it, the less advantaged 51% help the court system 9% personal development 5% table 1 shows that one of the key motivating factors for participating in the clock scheme was to help the local community. many participants considered that the clock scheme would give them an opportunity to provide community support and help deliver social justice to those most in need: “one of the main motivators behind my decision to participate in the clock scheme was an attempt to help those who are in need of support and guidance.” figure 1: do you think volunteering as a clock clc will support your academic studies? table 2: what are your career aspirations? solicitor (practice area not specified) 44% family lawyer 16% barrister (practice area not specified) 14% legal services 12% unsure 9% other 5% in answer to the question about career aspirations, the answers fell into four categories; career as a solicitor, career as a barrister, uncertainty, and other career pathway. as noted earlier, the majority of participants when responding revealed that they intend to pursue a legal career of some kind, whilst a minority were uncertain. the work experience opportunities presented through the clc role were acknowledged by nearly all the participants who responded to questionnaire 1. for instance, one participant confirmed: “i wanted to participate because the programme seemed like a great opportunity to gain work experience while giving back to the community.” questionnaire 2: table 3: what have you most enjoyed about being a clock clc? helping people in need 82% court involvement 12% finding out more about the legal issues people have; learning about court documents; preparing myself for practice; learning about the different avenues available to litigants in person 6% assisting people in need was what most students did actually find most enjoyable once they had experienced the role as seen in table 3. one student commented: “the sheer feeling you get from helping people and even just supporting them and talking them through things makes me feel like i’m making a difference (be it a cliché).” another reflected on the continuous learning process of being a clc: “it is very rewarding to be able to be a small part of making such a complicated and stressful process more transparent and manageable, especially as it reflects the area i want to work in in the future, and means i can draw from past experiences with litigants to assist future ones as well.” figure 2: do you think volunteering as a clock clc has supported your academic studies? as to whether students felt volunteering as clcs would support their academic studies, the majority felt that it would (see figure 1) “it will allow me to see how the knowledge is applied in real life” and “i am wanting to study family law in year 3 so this matches perfectly.” again, this was borne out after experiencing the role (see figure 2): another noted that the experience “reinforced what i learnt in the first year on legal structures” and, “it has made me even more organised and given me a professional work ethic that i can apply to my studies.” a minority of students were less sure of the role supporting their studies directly including one student who commented: “so far, i would say it has been an additional extra, rather than a support as the areas i’ve assisted lips with have not, strictly speaking, been part of my studies. it’s been a great insight into the barriers faced by those accessing the courts/justice system, or trying to.” figure 3: do you think volunteering as a clock clc may support your future employability? when asked specifically about employability, again students’ expectations were borne out once they had carried out the role, with the vast majority (see figure 4) stating that they perceived their role as a clc would have a positive effect. typical comments included: “i believe that clock will support my future career as a solicitor as it will help me stand out from my peers, help my experience in the legal sector and communication with individuals in difficult situations.” standing out from the crowd in a competitive employment market was a common theme. this is in line with a research study in the usa which asked how law students could stand out and gain employment in a public interest legal job. the responses revealed that employers “value practical experience” and advise students to “[e]nroll in a clinical education programme”.[footnoteref:49] [49: national association for law placement, nalp public interest employment market snapshot report 3, 16 (2012) in kuehn, r. r. supra, note 33 p.661.] development of key skills was an emerging theme from questionnaire 2. all clcs felt that participating in the scheme had helped them develop key skills. these included empathy; dealing with people; time management; professionalism; communication skills; listening skills; and coping well under pressure. as noted earlier when considering the employability value of the scheme some students considered that “every aspect of [the skills acquired as a clc are] transferable”. the key themes of helping in the wider community, impact on academic studies and employability were further explored in the focus groups. university of brighton students talked about the difficulties for often vulnerable people who are “lost in the system”. one said “we are a bridge, someone to talk to”, another “court is so daunting”.[footnoteref:50] what emerged from the groups was an appreciation of the difficulties that litigants in person face when trying to access the court system. it was also clear that students had reflected deeply on their experiences, with one commenting that “[clock has] changed the way you look at people.” another, who had assisted a litigant who had recently served a prison sentence, said that clock had helped her to overcome her own prejudices, saying “there’s more to people than a stereotype”. a recurring thread of the discussion was that they felt they were a link/bridge, particularly as in the brighton family court, where they are based, what was the public counter, is now closed as a result of cuts to court funding. [50: the views of the students correlate with the findings of the law society’s review ‘access denied? laspo 4 years on: a law society review, available at: http://www.lawsociety.org.uk/support-services/research-trends/laspo-4-years-on/ (accessed on 03.07.17).] exploring further the question of whether volunteering as clcs supported their academic studies, a common feeling was that it had helped them “to piece things together.”[footnoteref:51] for some of them, being part of the clock project had shaped their future academic choices, one said that participating “made me want to do family law. i had no interest in family law before.” another said that they were planning to take the innocence project module as a final year elective so that they could explore access to justice further. all of the brighton focus group participants felt that the experience had helped them to be more organised and had added meaning to their academic work, whatever the area. one student noted that having clock as part of a module “would be incredibly useful.”[footnoteref:52] [51: this is in line with maranville, d. a’s view that “[c]ontext helps students understand what they are learning, provides anchor points so they can recall what they learn, and shows them how to transfer what they learn in the classroom to lawyers’ tasks in practice.” ‘infusing passion and context into the traditional curriculum through experiential learning’, journal of legal education, volume 51, no.1 (march 2001) p.52.] [52: at some of the participating universities, including the university of sussex, students can volunteer as clcs as the practical element of a clinical legal education module and this is something that both the university of brighton and canterbury christ church university are looking to develop.] there was evidence from the responses that students like the ‘reality’ of the experience. in support of the ‘real life’ experience which they are exposed to one participant said: “i think it will provide me with valuable experience in terms of what to expect when it comes to dealing with real life disputes as well as understanding the legal environment.” this supports a point that kerrigan and murray make when they say that clinical legal education requires participation in the legal system.[footnoteref:53] another participant commented that at a networking event a lawyer had told her that every day is different and she felt that clock had brought that home to her “this is a real-life job” and “the more you do it, the more you enjoy it.” regarding development, dealing with people/communication skills was the most discussed skill, but participants also reflected on the need to be professional in terms of time-keeping, organisation, dress and keeping a professional distance, all of which they felt would help them in terms of employability. there was a broad acceptance that participating as a clc would be an opportunity to enhance their cvs. participants also talked about developing professional networks with court staff, lawyers they meet at court and the clock partners, which they felt confident would assist with future employability. [53: kerrigan, k., & murray, v. (2011). a student guide to legal education and pro bono. palgrave macmillan, pp.6-7.] the broader research, which is being conducted by a team of clock researchers nationally, considers the value of collaborative frameworks to support social and legal policy research and to monitor and critically analyse legal issues in the local community towards wider dissemination, social advocacy and policy reforms at local, national and international level. our strong impression is that clcs feel part of the wider context of access to justice and we were pleased to see their contribution recognised nationally at the lawworks and attorney general student awards 2016.[footnoteref:54] [54: for further details about the lawworks and attorney general student awards 2016 see: https://www.lawworks.org.uk/solicitors-and-volunteers/get-involved/lawworks-attorney-general-student-awards-2016 (accessed on 10.07.17).] challenges of establishing the scheme establishing such a scheme is not without its challenges though. at both canterbury and brighton it was necessary to take the lead on outreach into the local community to explore the possibility of stakeholder support. it was the responsibility of academic leads within the institutions involved to encourage members of the legal services community, third sector advice services, hm court & tribunal service, to support the initiative. whilst this was initially quite a challenging undertaking (albeit very much supported by members of the regional judiciary), it was soon evident that there was enthusiasm and support for the introduction of the scheme in both areas of the country. indeed, as the scheme became more widely known, both brighton and canterbury were approached by a number of legal service providers wanting to come on board. it was also necessary to publicise the service through the universities’ marketing channels and organise promotional material to distribute to various local community hubs, including mps’ constituency offices to raise awareness of the service. some of the additional practical challenges are those familiar to anyone running extra-curricular activities, such as recruiting sufficient numbers of students, securing training rooms and any other necessary resources. brighton does not have dedicated administrative support and therefore decided to appoint a student liaison from both brighton and sussex to assist with aspects such as publicising rota gaps, forthcoming hearings for which a clc has been requested and to manage the email service. it is important that the scheme runs as effectively as possible and ongoing dialogue with the clcs, partners and court staff is maintained, so that the service can be improved. brighton is in the process of developing shadowing opportunities for their clcs with the partners, with a view to facilitating increased understanding of their services.[footnoteref:55] [55: to date cafcass and two of brighton’s practitioner partners have provided shadowing opportunities for our clcs.] given that this is a public-facing role, it is essential that students are fully committed to the project and fulfil their obligations to the initiative as well as to their fellow clcs.[footnoteref:56] it is also essential to ensure clcs feel supported, particularly given that there is no direct academic supervision of court desk activities. close communication with the academic leads is essential and we also recommend input during the training week from student support services so that clcs are aware of the wider pastoral support available to them should they find a particular case distressing. [56: at the university of brighton for our first cohort we asked students to submit an application letter, outlining why they would like to participate in clock. for our second cohort we followed the same process but with an additional short interview.] to coordinate the scheme, it was considered necessary to form a steering group to support the kent project. the clock in kent steering group comprises student clcs, representatives from local advice and assistance services, law firms, the judiciary and the court service. the role of the steering committee is to provide support, advice and guidance to the clock in kent project to ensure that the project operates effectively and is a sustainable and viable initiative. quarterly meetings of the steering group have been organised and these have been well attended so far. training of the clcs requires the support, supervision and coordination of academic and support staff members as well as representatives of the local partner organisations. the training programme needs to be designed with local community need in mind but broadly will include the use of local legal practitioners to provide guidance on court applications and procedure, local mediators to provide awareness and guidance on mediation referral, third sector agencies to provide awareness of local provision including domestic violence and housing advice and court staff to provide guidance on the court process. conclusion clock has provided an opportunity to introduce clinical legal education to a number of uk law schools, or in other words, enable students to learn by ‘doing’, alongside the curriculum. clinical legal education is intended to produce students that can take the learning experience offered by live clinics and reflect upon how and why cases were progressed and how this fits into the overall context of their legal studies.[footnoteref:57] such approaches intend to empower students to become pro-active learners and to provide formative assessment methods, which are in themselves are a strategic and integral part of the learning experience. the clock project proposes to achieve all these aspirations and there are opportunities to introduce summative credit based assessment, which can provide students with academic credit for their involvement.[footnoteref:58] [57: see ibid, murray, v. pp. 226-249, for helpful analysis of schön’s established approaches to reflection (reflection on action and in action), and greenaway, boud, gibbs & kolb for models of reflection. ] [58: ibid pp. 250-268, for some ideas on assessment methods for such clinical legal education projects. ] the benefits of participating in clock from the perspectives of legal education and employability can also be viewed in conjunction with the requirements for law graduates as per the qaa subject benchmark for law 2015,[footnoteref:59] which highlights among other requirements, the need for communication skills. it is also likely that the skills developed through the clock scheme will become even more crucial as legal education providers transition to the solicitors qualifying exam, which has an emphasis on key legal skills in stage 2.[footnoteref:60] [59: qaa subject benchmark statement: law july 2015 uk quality code for higher education part a: setting and maintaining academic standards: http://www.qaa.ac.uk/en/publications/documents/sbs-law-15.pdf (accessed 10.01.17).] [60: supra, note 30.] law students’ experience is undoubtedly enhanced through the establishment of regional versions of clock and the community legal companion scheme. the advantages of such a project are self-evident. it assists the community, it facilitates potential mediation referrals for local mediation services (through agency signposting), it provides employability opportunities for students through personal professional development/cv enhancement, and gives them a sense of responsibility, independence of thought and achievement through community/public spirited social justice engagement, as well as enabling an appreciation of legal ethics.[footnoteref:61] particularly given the overwhelming social justice motivations for participating discussed earlier, further longitudinal research would be interesting to explore the impact of volunteering for clock as the clcs graduate and progress in their careers, considering inter alia, whether there is an increased likelihood of them pursuing roles in areas more typically associated with social justice and whether they are more likely to engage in pro bono work than peers who have not participated in such a scheme, as a result.[footnoteref:62] [61: see generally; bloch, f. s. (ed.) (2011) the global clinical movement: educating lawyers for social justice, (new york: oxford university press); baron, p. & corbin, l. (2012). thinking like a lawyer/acting like a professional: communities of practice as a means of challenging orthodox legal education. the law teacher, 46(2), 100-119.” 46(2); a. francis, "legal education, social mobility, and employability: possible selves, curriculum intervention, and the role of legal work experience." journal of law and society 42.2 (2015): 173-201.] [62: see e.g. mckeown, p., ‘pro bono: what’s in it for law students? the students’ perspective’, international journal of clinical legal education, vol 24, no 2 (2017) pp 43-80 which explores students’ motivations for participating in pro bono work and considers whether this is likely to instil a public service ethos which they will carry forward. ] 24 439 the value of incidental learning in a multidisciplinary setting ross hyams1 denise sadique2 faculty of law, department of social work monash university, faculty of medicine, clayton campus nursing and health sciences wellington road, monash university  victoria, 3800 caulfield campus, australia sir john monash drive, victoria, 3145 australia          1 ross hyams is a practicing lawyer and senior lecturer-in-law in the faculty of law of monash university, melbourne, australia 2 denise sadique is a social work student unit supervisor, tutor and field education assistant in the department of social work, monash university 440 international journal of clinical legal education issue 20 introduction there is much to be gained by students learning together in a multidisciplinary environment� enabling students to interact in a multidisciplinary clinical setting enhances their opportunity to learn from each other, their supervisors from different disciplines and from their experiences with clients� as well as “formal” learning opportunities which take place in the classroom, seminar environment, or in one-to-one instruction with a clinical supervisor, students working in a clinical setting have a range of opportunities to be exposed to informal, or incidental learning� this is learning that occurs in an opportunistic, unplanned and often, serendipitous fashion� this paper reflects on incidental learning opportunities that have been observed to take place in a multidisciplinary clinical setting, specifically between law, social work and business students� these reflections come directly from practice experience at the monash-oakleigh legal service, operated by the faculty of law at monash university in melbourne, australia� originally established as a pilot project in 2010, the multidisciplinary clinic runs two client intake sessions per week throughout the year, involving approximately 65 students from three disciplines on a yearly basis� the students interview clients in a team (law, social work and finance) and the supervisors also sit together as a team to advise the students� the legal service has a generalist practice, dealing with a diverse range of matters such as car accidents, crime, family law, debt, neighbour dispute and traffic infringements� since its inception, students graduating from the clinic, and their supervisors, have been surveyed about their views regarding their participation in multidisciplinary clinical education� accordingly, one of the main themes that has emerged from these surveys is that students are learning a great deal that supervisors are not necessarily directly teaching them– that is, much “incidental” learning is taking place from the cross-fertilisation between students and supervisors of different disciplines, during the clinical experience at the legal service� there was also incidental learning that took place among the supervisors of the different disciplines, with supervisors stating that they gained knowledge and insights into each other’s disciplines� these were both unexpected outcome of the multidisciplinary clinical methodology, but outcomes which are much welcomed by clinical educators� this paper will first attempt to define and describe incidental learning� it will then focus on the opportunities for incidental learning which can arise in a multidisciplinary clinical setting, concentrating on both formal and informal learning outcomes and will ask whether such outcomes can be measured and if so, how� ultimately, it will be concluded that much insight and wisdomtakes place by incidental learning in a multidisciplinary clinical environment and that we should seek to create and maintain a work environment that nurtures this type of learning� accordingly, recommendations will be made for future clinical education which may be able to capitalise on and nurture collaboration, transfer of learning and informal learning opportunities to provide participating students from diverse disciplines with skills and knowledge that better prepare them for the reality of the workforce� 441 what is incidental learning? garrick3 provides a literature review that offers various definitions of incidental learning� a starting point in defining the concept may be to investigate what formal learning consists of by way of comparison� tusting4 states that formal learning comprises the following characteristics: • it takes place in an educational institution� • it follows a planned curriculum which has been set in advance� • it is accredited using formal means of assessment� • teaching is delivered by way of a hierarchical relationship between teacher and student�5 by comparison, incidental learning is described by garrick as, amongst other descriptors, nonintentional, self-directed, experiential, contextual and reflective�6 in a clinical environment, some experiential, contextual and reflective learning outcomes are intentional on the part of the educator� part of the objective of clinical legal education is to intentionally attempt to enable the student to learn from experience and discover, for example, the appropriate role of a professional� in addition to intentional learning experiences, clinic creates an environment which also offers serendipity – learning can take place in a spontaneous fashion when you least expect it, often in situations that a teacher would find very difficult to simulate in most classroom situations� however, the opportunities for incidental learning will often depend on the learning environment that has been created� a formal classroom or lecture theatre environment may not be fertile ground for spontaneous and reflective learning amongst students� an appropriate “climate” must occur in which the need, motivation and opportunity for learning exist�7 marsick and watkins describe this climate as simply one of context – that is, incidental learning can come as a result of everyday encounters where a challenge arises or a problem must be resolved�8 further, in their study of managerial proficiency reported in 2003,9 enos, kehrhahn and bell discovered that managers consistently reported that their learning of core managerial skills arose mostly from informal, or incidental, learning opportunities�10 this indicates that incidental learning has a key role to play in transfer of learning – that is, how a trainee applies skills learned in their training to a variety of situations required in the work environment�11 arguably, the context requirement described by marsick and watkins is unlikely to arise in formal learning environments and most likely to take place in the context of a clinic – where clients’ problems must be resolved and their needs addressed on an everyday basis� this is why 3 j garrick (1998) informal learning in the workplace: unmasking human resource development�london: routledge 4 k tusting (2003) “working paper no 2: a review of theories of informal learning” literacy research centre, lancaster university, uk 5 ibid 6� 6 ibid 5� 7 v marsick & k watkins (2001) ‘informal and incidental learning’ 89 new directions for adult and continuing education 25 at 28� 8 ibid 29� 9 m enos, m kehrhahn &a bell (2003) ‘informal learning and the transfer of learning: how managers develop proficiency’ 14 (4) human resource development quarterly 369 10 ibid 377� 11 ibid 371� the value of incidental learning in a multidisciplinary setting 442 international journal of clinical legal education issue 20 clinical education is such a fertile ground for incidental learning – it provides the context which forms the central hub of marsick and watkins informal and incidental learning model� students consistently complain that classroom learning of doctrine has little to do with, or is difficult to apply to, real life client situations (this is especially true of law students where the majority of their legal education has been traditional lecture style)� if we apply enos, kehrhahn and bell’s findings about managerial proficiency to university students, it is apparent that much of the skills and knowledge that students acquire from incidental learning can assist them in the transfer of this learning to various client situations both within the clinic and in their future professional lives� lave and wenger12 point out that informal learning is a social process� it requires people to participate in interactions with others in the workplace that arise out of an integrated set of work relations�13 it cannot take place in isolation� again, this is where clinical education really comes to the fore – by their very nature, clinics are social environments requiring students to interact with a variety of people – clients, administrative staff, supervisors and each other� this is a rich and diverse environment which cannot be replicated in a classroom setting where opportunities for informal learning are very difficult to create� enos, kehrhahn and bell found that “interactions with others” was the most prevalent learning activity for new managers in the workplace, and provide a wealth of learning�14 these are important findings which underscore the value of incidental learning for university students in becoming work-ready graduates� important incidental learning in practice is also noted by le clus as learning that occurs within everyday work activities� learning as part of experience and participation indicates that learning occurs using a variety of strategies� making sense of daily occurrences in a workplace involves reflecting on what is known and then experienced in a self-directed way� le clus also suggests that incidental learning is a social process that can occur from observation, repetition, social interaction and problem solving�15 indeed le clus highlights lave and wenger’s more detailed “community of practice” idea, where activities and understandings do not exist in isolation but have meaning as part of a system of relations among persons� learning thus involves transformation as stated by lave and wenger “becoming a different person” and “the construction of identities”�16 incidental learning is also described by le clus as most often occurring in the moment, tacit and situated within social situations and interactions with co-workers� such an environment is available and supported in the clinical setting where the focus is service delivery and the development of students’ skills and knowledge for practice� an explicit purpose of social work field placement is to allow experience to influence the developing professional self�17 le clus characterises tacit knowledge as “the subjective and personal knowledge acquired by individuals�” 12 j lave & e wenger (1991) situated learning: legitimate peripheral learning� in r pea & js brown (eds) learning in doing: social, cognitive and computational perspectives cambridge university press� 13 id� 14 m enos, m kehrhahn &a bell above n 10 at 379� 15 m le clus (2011) ‘informal learning in the workplace: a review of the literature’ (51)(2) australian journal of adult learning 355� 16 j lave & e wenger (1991) situated learning: legitimate peripheral learning� in r pea & js brown (eds) learning in doing: social, cognitive and computational perspectives cambridge university press 17 ching man lam, hung wong and terry tse fong leung (2007) ‘an unfinished reflexive journey: social work students’ reflection on their placement experiences (37) british journal of social work, 91� 443 the value of incidental learning in a multidisciplinary setting she refers to gourlay’s18 review of research studies from different disciplines that suggest tacit knowledge is personal, experiential, job specific, transferred during conversation, known or unknown to the learner and as such, is knowledge that can be learnt incidentally or informally�19 much of this learning may be incidental to the tasks at hand, unintentional and only noticed in journal reflections or conversations with peers or supervisors� however, it may also be critical to the development of skills in learning from and through experience�20 this reflective practice can be improved by making such incidental “implicit knowledge explicit and exposed to scrutiny,” according to fook�21 it is hoped such incidental learning assists growing practitioners to be better at learning to respond and manage change, perform as required and feel satisfied with their efforts as they progress to the workplace�22 in marsick’s examination of incidental learning, it is further suggested that learning is not only implicit or incidental but more easily understood through the broader socio cultural dimension of workplace learning� the interaction of people in their “social, historical and cultural context”23 is identified as affecting learning practices and choices, shaping and being shaped by people, not always consciously� marsick highlights the influence “nurturing socio-cultural and organisational environments”24 such as the context created for students in the multidisciplinary setting, has on formal and informal individual learning� activities such as experimenting, reflection, examining practice, sharing ideas, learning by doing and making mistakes, mentoring and coaching, giving and receiving feedback as well as every day conversations with peers and supervisors are all offered as opportunities to stimulate the development of skills relevant to individual professional practice, no matter what the discipline� supportiveness of an environment for learning in an accidental and incidental way was highlighted during gola’s narrative research�25 gola studied social workers in italy, to better understand informal learning� marsick noted that gola identified that social workers’ learning could be categorised as “deliberative learning, reactive learning and implicit learning�”26 the difficulty gola found studying implicit learning was that even though this type of learning may be driven by values and goals that could be espoused, the learning itself may not be conscious and therefore difficult to identify� an important role of professional supervision is to assist students to identify this implicit incidental learning, as it is experienced� in the multidisciplinary learning setting, supervisors aim to 18 gourlay,s�n (2002) ’tacit knowledge, tacit knowing or behaving?’, paper presented at the 3rd european organisational knowledge, learning and capabilities conference, athens, 5-6 april and gourlay,s�n (2004) ‘knowing as semiosis: steps towards a reconceptualisation of “tacit knowledge”, in h�tsoukas & n� mylonopoulos(eds�), organisational knowledge systems, london: palgrave macmillan: 86-105 in mle clus (2011) ‘informal learning in the workplace: a review of the literature’ (51)(2) australian journal of adult learning 355� 19 m le clus above n 16 at 365� 20 ibid 365� 21 jan fook and fiona gardner (2001) critical reflection in context: applications in health and social care (routledge,hoboken) 3� 22 m le clus above n 16 at 358� 23 victoria j� marsick (2009) ‘toward a unifying framework to support informal learning theory, research and practice’ (21) (4) journal of workplace learning, 265� 24 ibid 274 275� 25 ibid 271� 26 bid 281� 444 international journal of clinical legal education issue 20 encourage the development of a climate where this knowledge can be discovered�27 relevance of a multidisciplinary learning environment for law students, new paradigms of collaborative practice and non-adversarial methodologies in the legal system require law graduates to have a wider understanding of the lawyering roles than was previously expected� as bratt points out, the conventional study of appellate cases, often being large scale commercial law disputes, provides an inaccurate picture of what graduates will encounter in their daily practice�28 this method of studying law also does not provide the background, the narrative or the context of law in its social milieu, which forms a large element of the setting of legal disputes in practice� further, as daly notes, the increasingly complex demands of clients’ legal issues demand integrated advice29 – that is, advice from a lawyer which takes into account a variety of non-legal factors� there are also changes taking place in clients’ expectations of lawyers� there is a growing belief amongst clients that lawyers must be creative and knowledgeable beyond the strict confines of the law and the legal system and that they will provide a common sense30 approach to problem solving from a multi-faceted perspective� this expectation can also be seen in the justice system itself as more courts and judicial officers adopt collaborative practices� for example, drug courts adopt a therapeutic approach that attempts to resolve offenders’ addiction to drugs, rather than just meting out punishments� participation in this, and other ‘problem-solving’ courts, requires lawyers to collaborate with prosecutors, psychologists, therapists, support workers and other court officials�31 these types of courts require a multidisciplinary teamwork approach and a willingness to understand, and work with, professionals in other disciplines� as freiberg points out, in a drug court environment such a team may be a group of legal, health, law enforcement and correctional professionals�32 it requires a range of disparate groups, with often conflicting interests, to work together. the team usually meets prior to each sitting of the drug court to review the cases and remains in court during proceedings.33 working in a new court environment such as this means that law graduates have to take a much less adversarial view of their role in the justice system – in a criminal law context, being a zealous advocate and focusing all energies on simply aiming to acquit one’s client may no longer be 27 id� 28 carolyn s bratt (1977-78) ‘beyond the law school classroom and clinic – a multidisciplinary approach to legal education’ 13 new england law review 199 at 202� 29 mary c daly (2000) ‘what the mdp debate can teach us about law practice in the new millennium and the need for curricular reform’ 50 journal of legal studies 521 at 533� 30 ibid 543� 31 moore d (2007 ‘translating justice and therapy: the drug treatment court networks’ (47) british journal of criminology 42 at 48� 32 arie freiberg (2002) “drug courts: sentencing responses to drug use and drug-related crime” 27 alternative law journal 282 at 284-285 33 id� 445 the value of incidental learning in a multidisciplinary setting an appropriate course, especially in a situation where a client is a repeat offender�34 taking a multidisciplinary approach to such a client will affect how an initial interview is conducted and the resources that are brought to bear from various other professionals in order to deal with the client’s wider life issues� this is a much broader investigative and counseling role than lawyers have previously undertaken� if law students don’t glean an understanding of, and some familiarity with, this enhanced lawyering role from the outset of their legal education, they will find themselves ill-equipped to provide an appropriate level of service delivery when they graduate� this new understanding can be seen in one of the early comments made in the reflective journal of a law student in the multidisciplinary clinic: one of the most interesting events has been meeting the police prosecutor handling the criminal matter of one of my clients to negotiate a potential plea. it was surprising to find that the meeting was not adversarial. rather, there seemed to be a common understanding of what was fair and reasonable and a real interest in working together to resolve the case in a timely manner that also considered the interests of the client. a multidisciplinary learning environment, where students can learn from those in other disciplines in an informal setting, also assists law students to develop self-identity and autonomy as a professional� there are various choices about one’s self-identity as a lawyer that can be made by law graduates� o’grady suggests that lawyering styles can run the entire spectrum from “empathetic connection” to “detached neutrality”�35 parker and evans propose a paradigm of four different lawyering approaches commencing with the traditional “adversarial advocate”,36 in which the lawyer sees themselves as simply having a duty to pursue the client’s interests within the boundaries of legality� at the other end of the spectrum, they posit a self-identity of the lawyer as moral activist�37 rather than simply just absorbing their new employer’s paradigm of lawyering, law students can develop their own self-identity as professionals by exposure to a multidisciplinary learning environment during their undergraduate legal education� a strong self-identity will benefit the new graduate in their complicated, and often challenging, dealings with the reality of practice� lesnick posits that law students must be confronted with “questions of identity”38 in order to promote their professional growth and that a failure to do so sends an unspoken message that legal education is simply a tool to obtaining a well-paid job� in a multidisciplinary clinic, law students have the opportunity to test their understandings of their professional role against those of students in other disciplines, by comparing, for example, their understanding of their professional responsibilities and approach to ethical issues� such an opportunity assists them to create and refine their understanding of the lawyer’s role in assisting with dispute resolution, and more specifically, how they personally define themselves as professionals within that role� when asked 34 michael king, arie freiberg, becky batagol & ross hyams, non-adversarial justice (the federation press 2009) at 231� 35 catherine gage o’grady (1997-1998) ‘preparing students for the profession: clinical education, collaborative pedagogy, and the realities of practice for the new lawyer’ 4 clinical law review 485 at 491� 36 christine parker & adrian evans, inside lawyers’ ethics, (cambridge university press 2007) at 21-37� 37 ibid 28� 38 howard lesnick (1992) ‘being a teacher of lawyers: discerning the theory of my practice’ 43 hastings law journal 1095 at 1099� 446 international journal of clinical legal education issue 20 about the law students’ role identity, one of the supervisors of the pilot project of the monash oakleigh legal service commented as follows: by virtue of having three students from three different disciplines interview the client, i find that each student notices a different emphasis. they’ve all heard the same material, but sometimes they write down different and conflicting information and they have to rationalise it between each other it’s almost like a check and balance which can be a good thing or sometimes is confusing and requires further clarification. i think the students received a greater awareness of the bigger picture of each of their clients. by having to rationalize their perceptions of the client’s problem to students of other disciplines, the law student is confronted with the need to understand why they are focusing on particular aspects of the client’s presentation (and not others)� this requires students to develop self-insight and assists them to form an understanding of their own identity as legal professionals�39 autonomy is an essential aspect of lawyering as the practice of law requires the making of judgments on an everyday basis� ryan and deci define autonomy as “action that is chosen; action for which one is responsible�”40 in a clinical environment, professional autonomy translates to student independence and self-direction�41 in a multidisciplinary setting, law students are forced to rationalise choices to their non-law peers and to take control of the legal aspects of the clients’ problems� working in a team requires a sense of responsibility to other members of that team and this responsibility enhances the notion that they must develop independence� as their team members are looking to them to take responsibility for certain important aspects of the client’s matter, law students develop a sharp sense of self-direction and a feeling of responsibility for the choices they make, thus satisfying ryan and deci’s definition� this awareness of the necessity to act autonomously can also be engendered in a conventional clinical legal education environment, but such students do not feel it as keenly as they are not required to justify their decisions or actions to other members of a peer team: i learnt so much from my finance student, because we were together for three months. if i’d been with my social work student for that period of time, i think i would have learnt the same amount from her. the practical knowledge that i’ve learnt is so valuable, not only legal, but finance and social work knowledge. there is definitely ‘bleeding ‘between the disciplines. the good law students, those who are more empathetic and more attuned to treating a client, not a problem, pick up tips from the social work students and raise finances issues. – comment of clinical supervisor� however, it is worth the effort, as one student notes: i can now issue spot areas really easily in which i think a client could benefit from a 39 catherine gage o’grady (1997-1998) ‘preparing students for the profession: clinical education, collaborative pedagogy, and the realities of practice for the new lawyer’ 4 clinical law review 485 at 499� 40 edward deci & richard ryan (1987)‘ the support of autonomy and control of behavior’ 53 journal of personality and social psychology) 1024 41 ross hyams (2008) ‘on teaching students to ‘act like a lawyer’: what sort of lawyer?’ 13 international journal of clinical legal education 21 at 25� 447 the value of incidental learning in a multidisciplinary setting multidisciplinary approach just by flicking through a file or hearing a student discussing their clients with other students. for this student, this skill obtained through working in the clinic supports enos and kanter’s findings that students working in a multidisciplinary environment “see legal solutions as only one option among a multidisciplinary array of interventions�”42 whilst in the workplace effective team work is viewed as an essential requirement of professional practice for social work students, according to pockett43 limited attention is given to this aspect of practice in professional social work education� she challenges educators to give this element of best practice prominence in the social work curriculum�44 the incoming president of the victorian branch of the australian association of social workers – david maxwell – recently affirmed his commitment to strengthening the professional position of social work in the contemporary scene by focusing his attention on an “increasingly challenging multidisciplinary environment�“45 the multidisciplinary clinic offers students from the social work discipline along with their law and finance counterparts this learning experience� despite differences in discipline approaches to their work with clients, students are unified by a context that is based on social justice principles of providing service to those most in need� the legal circumstances in which clients present are “explored holistically taking into account the complexity of the social and financial concerns of each client”�46 this opportunity enables students to learn much about the complexity of people’s lives and the collaborative effort required to achieve change – but equally important and perhaps incidental to the main task “students learn to appreciate the unique skills and knowledge associated with each discipline, from both their peers and their supervisors�”47 as one social work student highlighted very powerfully: i learnt that legal practitioners and social work practitioners can have overlapping objectives in regards to working for the maximum benefit of clients. although each profession is based on differing philosophical foundations, both can have the similar goal of working for the empowerment of the disadvantaged and vulnerable people of society. furthermore, there are many legal issues that evolve either directly or indirectly from entrenched social economic disadvantage, mental illness or some other form of oppression. i have learnt that the combined efforts of law and social work practitioners will multiply the capabilities of either profession working in isolation. a whole of person approach to client’s problems involves the collaboration of professionals of various backgrounds and expertise. 42 v� pualani enos & lois h kanter (2002-2003) ‘who’s listening? introducing students to client-centered, client-empowering, and multidisciplinary problem-solving in a clinical setting’ 9 clinical law review 83 at 134. 43 rosalie pockett (june 2010) ‘interprofessional education for practice: some implications for australian social work’ australian social work (63)(2) ,207 44 ibid 208� 45 david maxwell (2012) ‘incoming president’s report’,1) ( 3) social work connect 3� 46 ‘hyams r, brown g and foster r (2013) “the benefits of multidisciplinary learning in clinical practice for law, finance, and social work students: an australian experience” 33 (2) journal of teaching in social work 159 47 ibid 22 448 international journal of clinical legal education issue 20 another student observed that: whilst together we had the ultimate goal of gaining the best outcome, how each discipline seeks to address the client’s issues and how they perceive the issues was an eye opening aspect of working in the multidisciplinary clinic. the value of this experiential learning for future practice was described by a social work student and supported by comments that follow from a finance student: working in the multidisciplinary clinic teams has given me a supported experience for future workplaces where i know i will come across multidisciplinary teams again. to have a sense of workplace culture, to gain knowledge of effective team work and develop skills of investigating underlying issues. the research findings of eraut48 confirm that the two forms of informal learning reported by professional workers as most significant were the challenge of work itself and learning from other people� he concluded that the learning from such activities is largely implicit and difficult to explain� this research reinforced that working in groups with individuals who bring different expertise assists practitioners to both understand and utilise this expertise�49 group learning strategies are an important tool in social work education� the team based learning available in a multidisciplinary setting facilitates co-operative learning amongst students� research has shown the benefits of co-operative learning for students across a wide range of disciplines50 and social work educators agree� they suggest it fosters more effective critical thinking, improves student cohesion and respect for diversity amongst social work students�51 this research is supported by the comments of the social work students in the authors’ clinic who commented about their learning: ‘every student approaches it in a different way and more heads are better than one! the more we include each other and contribute, the more the client benefits. other students identified the benefits as follows: a positive would be working in a team and being able to discuss client’s needs and issues between a group of you. if you have a long or tough interview with a client, it can be good to debrief with each other afterwards and especially with people who were in on the situation with you. it is also good to see that everyone can have different opinions about the same issue and to hear what other people thought and if you thought the same thing. whilst i have worked in team based workplaces before, the multidisciplinary clinic experience demonstrated to me how successful partnerships should work. 48 michael eraut(2011) ‘informal learning in the workplace : evidence on the real value of work-based learning (wbl),’development and learning in organizations, (25)(5) 8-12� 49 michael eraut (2011) ‘informal learning in the workplace : evidence on the real value of work-based learning (wbl),’development and learning in organizations, (25)(5) 9� 50 d�w johnson�,&johnson,r�t� (1992) creative controversy: intellectual challenge in the classroom� edina, mn:interaction book co and r�e slavin� (1995) cooperative learning (2nded�)� boston, ma: allyn & bacon in judy gillespie (spring-summer2012‘enhancing social work education through team based learning’, (48) (2) journal of social work education 377� 51 ibid at 377� 449 the value of incidental learning in a multidisciplinary setting work based learning enables social work students to show evidence of their capacity to apply their academic knowledge to practice, as a precursor to learning directly from practice by critically reflecting on everyday tasks once they commence work�52 mirabito suggests that field education in partnership with academics has traditionally served as a central strategy in the education of social workers� she acknowledges that, “schools of social work are continually challenged to provide professional training which effectively prepares students” for the constantly changing and increasingly complex, practice context� new practitioners require a set of integrated social work skills that not only include the ability to provide direct clinical services to a diverse and disempowered client group but the skills to also negotiate demands within an agency, organisation or community; to communicate professionally both verbally and in writing, as well as conduct relevant research and program evaluation as required�53 political skills in managing in difficult environments, inter or multidisciplinary teams, working collaboratively and taking up leadership roles to develop services and programs are also recognised as necessary skills� the ability to maintain a strong social work identity in the face of encroachment from other professions is also a current requirement for the new practitioner� much of this learning is often developed during field education experiences in incidental and spontaneous ways that are context dependent and not always predictable�54 developing a sense of professional social work identity can be particularly difficult for new social work graduates who work in a multidisciplinary environment, according to seden and mccormick�55 social workers that place clients at the centre of their practice and who can identify the influence of social context and use a holistic approach based on a trusting relationship, are encouraged to bring these skills to influence multidisciplinary settings�56 such workplace contexts are where not only professional practice but professional identities are developed�57 davis, gordon and walker noted that professional identity development relies on the building of confidence from reflecting on knowledge and learning through practice – a confidence to challenge, negotiate and provide professional assessments of value�58 agllias reported in her findings that new social work graduates often struggled with role conflict, clarity and value conflicts�59 she highlights the increasingly complex contemporary work environment where the role of the social worker may be overlooked or misunderstood� social work may be 52 roger davis, jean gordon and gill walker chapter 20 ‘learning in practice: some reflections on the student’s journey’, in janet seden, sarah matthews, mick mccormick, alun morgan professional development in social work (routledge, hoboken, 2010)� 53 diane m� mirabito (2011) ‘educating a new generation of social workers: challenges and skills needed for contemporary agency-based practice’ clinical social work journal 1-11 springer link 10.1007/s10615-011-0378. 54 ibid 1, 5 55 janet seden and mick mccormick, chapter 24 ‘caring for yourself, being managed and professional development’ in, janet seden, sarah matthews, mick mccormick, alun morgan professional development in social work (routledge, hoboken, 2010) 171-177� 56 ibid 175-176� 57 jan fook chapter 3 ‘beyond reflective practice reworking the ‘critical’ in critical reflection’ in beyond reflective practice new approaches to professional lifelong learning eds� helen bradbury, nick frost, sue kilminister and miriam zukas (routledge, oxon,2010) 49� 58 davis,gordon and walker above n 53� 59 kylie agllias(2010) ‘student to practitioner : a study of preparedness for social work practice’ australian social work (63)(3) 345-360� 450 international journal of clinical legal education issue 20 rendered powerless as tasks perceived as social work are performed by other professionals�60 interestingly, the social work students in the multidisciplinary clinic found holding onto their identity a challenging task� some social work students may have been intimidated by being in the law students’ “realm�” professional status and power differences were observed� however, the consequent learning opportunity is also highlighted by the comments of students� “law students in a legal service may dominate the way in which interactions between the client and students take place” ”at times it could feel as though the social work component of the multidisciplinary clinic was peripheral to that of the law work” “it can be hard to voice your perspective, but that is something that can be worked around with time.” “there is a bit of a hierarchy” “in terms of viewing myself as a social work practitioner, one thing all of us achieved is our own sense of resilience.” developing the skills and confidence to influence workplace culture in order to advocate for and provide responsive and effective social work service is an excellent learning opportunity offered to social work students in the multidisciplinary setting of a legal service, where the core business is legal and where higher status professions like law lead� there is great value in a pedagogical focus on organisational skills and strategies for social work practice in inter and multidisciplinary settings that include legal or health care services�61 in these workplaces in particular, social work students are required to develop skills in negotiation, collaboration, leadership and interpersonal communication to ensure psycho social issues are voiced and political climates are understood and influenced for the benefit of the client� skills in effective communication with professional disciplines who command more power and influence is a necessity for contemporary social work practice�62 what learning outcomes should we expect from an mdc? in addition to practical skills such as interviewing, negotiation, letter writing, advising and document drafting which are expected outcomes of clinical education, there are a number of other learning outcomes which can be perceived, measured and assessed from multidisciplinary clinical experience� apart from the acquisition of a number of practical professional skills, there are some less tangible learning outcomes which can be derived from a multidisciplinary environment which are a direct result of this unique form of learning� this is not to say that such skills cannot be obtained elsewhere in a vocational university curriculum – however, a multidisciplinary clinic is an excellent environment to nurture a particular set of skills that are necessary for graduates to operate effectively in today’s practice setting� the first of these skills is that of self-reflection� it has been stated before that the clinical environment is the perfect laboratory for action and 60 ibid 354� 61 diane m� mirabito above n 54� 62 ibid 6� 451 the value of incidental learning in a multidisciplinary setting reflection�63 one of the prerequisites for an effective pedagogy of reflection is that students must be placed in situations which are outside of their normal range of experiences�64 it is fair to say that a multidisciplinary clinical environment will certainly present challenges to most students which are far outside of their previous educational experiences� students can be encouraged to develop and refine their reflections of their multidisciplinary clinical education by way of reflective journals or learning diaries65 which can be submitted to their clinical supervisor, discussed and (if desired) assessed�66 the skill of self-reflection is essential to becoming a well-rounded professional and in striving to become what schön describes as the “reflective practitioner”67 – adult learners who reflect on their experiences for the purposes of self-evaluation and improvement� as one student commented: “the process of introspection has helped me to reconceptualise the role of a lawyer as more than just a legal advisor. i now understand that a good lawyer needs to play the role of educator, planner and counselor.” critical reflection learning processes that start with individual experience and include social contexts of professional practice such as workplaces, ‘professional cultures, social, political and cultural contexts’68 are encouraged in social work education – especially clinical practice� this involves examining assumptions that may be implicit or incidental to a task, but significant for practice learning� this reflection is considered critical if it enables ‘an understanding of the way socially dominant assumptions’69 restrict so that more empowering practices may be chosen� fook encourages professional lifelong learning and the role of critical reflection processes�70 she also sees the importance of people developing “a sense of their own professionalism and professional practice”71 separate from workplaces� developing an understanding of how one’s fundamental values impact on the construction of professional identity, which is then translated into professional practices, may occur intentionally or incidentally through critical reflection� workplace cultures can be very powerful and the importance of educating students to be alert to organisational values is not to be underestimated, according to fook�72 in the authors’ opinion, there is no better “laboratory” for this to be nurtured than in the multidisciplinary service delivery environment� the students who were surveyed for this paper were very aware of these issues: “i have learnt to analyse and be critical of client stories as they do not always tell the truth or act in their best interest. think a bit like a lawyer.” 63 jacqueline st� joan, (2001) ‘the clinic as laboratory: lessons from the first year of conducting social research in an interdisciplinary domestic violence clinic’ 47 loy. l rev 317� 64 richard rogers, (2001) ‘reflection in higher education: a concept analysis’ 26(1) innovative higher education 37, 65 ross hyams, (2010) “assessing insight: grading reflective journals in clinical legal education” 17 james cook university law review 25� 66 id� 67 d schön, the reflective practitioner: how professionals think in action (new york, 1983)� 68 jan fook above n 58 at 49 69 ibid 40� 70 ibid 38� 71 ibid at 39� 72 id. 452 international journal of clinical legal education issue 20 “lawyers aren’t all bad, which i believe is a big misconception.” “i have learnt about the assumptions people make about social work.” “taught me how to engage in a working environment where everyone may not agree on the best course of action regarding a client and how that has to be negotiated.” “i have learnt more about people in general (clients, co-workers and friends) and about human interaction and development than in my life and degree thus far.” this purposeful and structured way of achieving insight links in with the concept of autonomy previously discussed in this paper� as law students develop insight into their clinical experiences, they form a self-view of their lawyering style which will be shaped by their interactions with their non-law peer team members� this helps to reinforce their budding notions of autonomy and independence, as noted by this student’s learning: “law is not for the faint hearted and i need to be mindful of my clients and their needs, as ultimately these will make me happier in my chosen profession.” the pedagogy of a multidisciplinary clinic also leads to law students forming an understanding (perhaps for the first time) of social justice issues� this exposure to a social justice agenda is enriched by interactions with peers from other disciplines (such as social work students) who, because of the very nature of the discipline from which they derive, often have a more sophisticated understanding of social justice at the outset of their clinical experience� rand points out that social work students operate from the perspective of an “empowerment model” basing their interventions in their clients’ lives on whether it will improve social justice for the client and the community�73 by contrast, law students often perceive the legal system from a positivist construct and concentrate on understanding and applying existing law, rules and processes� as a result of their legal education, they often have a form of legal myopia – focusing on the law “as is”, rather than the possibilities for reform and change� rand further suggests that during their legal education, law students may be exposed to some awareness of social justice issues, but that pedagogy in legal education generally does not approach the social justice agenda in a creative or structured fashion�74 he contends that law students must form a perception of social justice “that is both strongly held and operational”�75 certainly, being challenged by peers in a multidisciplinary team from disciplines such as social work with a strong social justice agenda will assist in this process� these law students highlight their operational learning: “often, there are underlying financial and mental health problems. this meant helping clients meaningfully needed to involve more than just focusing upon the legal issue they had presented with.” “every time i went to meet a client with a finance or social work student, i felt better equipped to resolve any problems that could potentially arise. 73 rand, s�(2006) ‘teaching law students to practice social justice: an interdisciplinary search for help through social work’s empowerment approach’ 13 clinical law review 459 at 484� 74 ibid 463� 75 id� 453 the value of incidental learning in a multidisciplinary setting “law is more than just statutes and high court judgments but it also deals with people who have issues beyond the black and white legal problem.” “it was refreshing to see how uncompetitive, caring and approachable the social work students were.” in tandem with an increased perception of social justice issues, the pedagogy of multidisciplinary clinic sharpens law students’ ethical awareness of the lawyering role and their understandings of professional responsibility� evans and hyams note that clinics have not only the opportunity, but the responsibility to provide training in these areas,76 as there are minimal opportunities in the traditional legal education curriculum to successfully instill a sense of ethical consciousness in law students77 in an engaging and participatory fashion� clinical legal education, especially a multidisciplinary environment, constantly challenges students in this area as they are forced to deal with ethical issues on an almost daily basis in the context of attempting to obtain the best possible outcomes for their clients� indeed, it is the very random nature of clinic which provides the various opportunities to deal with the spontaneous challenges of ethical issues in an immediate practice setting�78 when an ethical issue is raised in the context of casework, law students must not only consider the published professional rules of conduct, but their own ethical framework, social justice issues and the impact of their conduct on the community�79 working in a multidisciplinary team, law students’ awareness of their personal and professional ethics are sharpened and placed under the spotlight of scrutiny from their supervisors and peers alike� they are challenged by the twists and turns of the legal system in its operation in the social milieu and they must justify their decisions and motivations to their non-law peers� parker and evans refer to this process as ‘values awareness’80 and suggest that legal education can challenge, change and form an early understanding of ethical values in law students which may ultimately lead to better career choices and more satisfactory working lives�81 our research indicated that social work students, like the law students, experienced and learnt from ethical dilemmas in their multidisciplinary practice� ethical principles and values such as confidentiality and taking a client centred approach appeared to be similar for both the law and social work students but were not mentioned by the business economic students� whilst law places a priority on the client’s instructions, the social worker students realised that the best interests of the client and community were most highly valued in their interventions� similarly, the primary focus of law may often appear to be an overriding duty to the court, or the law itself, whilst for social workers, it is more obvious that clients are of greatest significance� this did result in some value differences and the social work students had to reflect critically on their interventions on a number of occasions, where, for example, there was the threat of further domestic violence, child 76 adrian evans & ross hyams (2008)“independent evaluations of clinical legal education programs: appropriate objectives and processes in an australian setting” 17 griffith law review 52 at 69 77 adrian evans and josephine polermo (2006) ‘preparing future australian lawyers: an exposition of changing values over time in the context of teaching about ethical dilemmas’ 11 (1) deakin law review 103� 78 mary anne noone & judith dixon(2001) ‘teaching towards a new professionalism: challenging law students to become ethical lawyers 4(2) legal ethics 127 ay 135� 79 ibid 143� 80 christine parker & adrian evans (2007) inside lawyers ethics, cambridge university press at 254. 81 id� 454 international journal of clinical legal education issue 20 abuse or criminal behaviour� as clients attend the service for legal reasons, the social work students were cautious about the extent to which they might challenge a law student on an issue of concern� they were aware of the importance of balancing their concerns about a client with the aim of team harmony and acceptance by peers�82 cooper notes that social work is about “the judicious and ethical use of power and authority and the accompanying responsibilities�”83 learning to assess a personally challenging situation of a client, whilst maintaining a constructive working relationship, increased and tested the ethical awareness for all students at the legal service�84 agllias concludes from her research that social work graduates need the support of social workers with experience to reflect and challenge boundary conflicts and unethical practices in the workplace�85 eraut’s findings confirm that support and feedback are critical factors for “confidence, learning, retention and commitment�”86 it was found that the quality of this support and feedback as well as appreciation for work completed, impacted on commitment to work�87 at the multidisciplinary clinic where students are expected to perform and achieve outcomes for clients, students quickly learn about the importance of quality supervision� supervision is available to not only social work students but all the students and it was acknowledged by most students as supportive, collaborative and valuable� the other opportunity available to students and supervisors is to engage in research to explore the impact of this model of practice on students, supervisors and clients� undertaking empirical research on the pedagogy of multidisciplinary student learning environments88 is a goal of the program but not easily achieved given the business of students and supervisors attending to the complex needs of the clients that present� a first attempt at a qualitative study to develop a better understanding of students’ perspectives on the influence of the multidisciplinary clinic on their learning and future practice has just commenced� during the last semester of 2012, as students from business economic, law and social work who participated in the multidisciplinary clinic were close to departing; they were emailed a questionnaire by the social work supervisor� a pre and post questionnaire could be introduced in the future to more accurately measure the impact of the clinical experience� structured and semi structured interviews would explore more deeply the views of students� however, limited time and resource constraints have meant that, thus far, only a questionnaire could be undertaken� the questionnaire provided students with the opportunity to voice their opinions about the program� the forty six students invited to participate were completing their placements and reflecting on their experiences was encouraged using a brief questionnaire� sixteen were from the law faculty, sixteen were business economic students and fourteen were social work students� an explanatory statement was forwarded as well as a consent form detailing the research title, voluntary nature of participation and confidentiality provisions, for participants to sign if they chose to participate� 82 kylie agllias above n 60� 83 barry cooper chapter 3 ‘criticality and reflexivity best practice in uncertain environments’ in janet seden, sarah matthews, mick mccormick, alun morgan, professional development in social work (routledge, hoboken, 2010). 84 ibid 20� 85 kylie agllias above n 60 at358. 86 michael eraut (2011) above n 49� 87 ibid 11 88 kylie agllias above n 60 at 357. 455 the value of incidental learning in a multidisciplinary setting the questions asked were open ended, designed by the social work supervisor to enable students to reflect on the following: what they had hoped to learn and what they actually learnt; both the positive and negative aspects of their experience; how the multidisciplinary approach had helped (or not helped) to meet the needs of clients; the impact of their learning experience on their future practice; and an opportunity to contribute any other comments which most students completed� fifteen out of 16 social work students completed the questionnaire; three out of sixteen law students and three students from the faculty of business and economics participated in the research� the high social work student participation may have been a result of their supervisor requesting participation� the other students may have felt less compelled to participate given it was not part of their assessment requirements and assessment was a high priority towards the end of their placement at the multidisciplinary clinic� an interview approach may also have resulted in an increased participation rate� themes were identified and summarised to contribute to further understanding and development of the learning opportunities facilitated by a multidisciplinary setting� a more refined set of research questions that explores the influence of social justice values and principles as well as models of supervision in the multidisciplinary context is also possible in the future� themes arising from the surveys received to date from the law, social work and finance students include the value of learning to transfer academic knowledge into practice� students noted their improved investigative and organisational skills as well as the importance of being thorough and detail oriented� they identified writing skills; insight into the contributions of different disciplines; team work and collaboration as relevant learning� communication skills such as negotiation, leadership and assertiveness were also skills acquired� observing social justice in practice was noted, as was the confidence to holistically meet the needs of complex clients� some students highlighted an increased self-awareness and insight into the value of supervision and supportive peers� learning about workplace culture, policies and legislation; developing practice autonomy; and professional identity development were among the outcomes acknowledged by all the students from the multidisciplinary experience� all the students from the three disciplines highlighted the value of effective teamwork in multidisciplinary practice� the finance students valued the opportunity to be exposed to ‘real life situations’� law students acknowledged a preference for working with “those who really need my help rather than dealing with company mergers and never meeting a client” and the importance of a ‘holistic’ approach to be effective� the unique supportive learning environment was noted by both law and social work students� the importance of supervision for support and guidance was noted by social work students who also highlighted the value of input from other discipline supervisors to their learning� more than half of the social work students highlighted the value of the legal knowledge learnt for their future work with clients� two students expressed their intention to undertake law degrees and two identified working in the legal context as a future goal� some of this learning occurred incidentally to providing services to clients in need� however, it is still early days in the life of the multidisciplinary clinic and the qualitative methodology and small sample size limit the ability to generalise from these findings� however, it can be noted that students identified their own professional practice learning as well as generic skill development necessary for all practitioners in the workplace� social work literature reinforces the need for graduates to bring a broad repertoire of integrated skills beyond the clinical to meet current 456 international journal of clinical legal education issue 20 practice demands�89 in a competitive employment market, it is expected that all professional workplaces would demand similar employability skills, which is an important outcome of this experience based pedagogy� can we measure these outcomes? there has been, and will continue to be, much debate regarding assessment in clinical programs�90 much of this debate surrounds the dispute as to whether a pass/fail or graded regime is appropriate for the assessment of clinical work�91 there has also been debate as to whether it is appropriate (or even possible) to assess the acquisition of ‘professional responsibility’92 and how feasible it is to assess insights demonstrated by student in reflective journaling tasks�93 it is not necessary to repeat these arguments here – however, the authors believe that it is both possible and valuable to measure the learning outcomes of a multidisciplinary clinic, with the aim of providing students with useful formative and summative feedback� formative feedback comes in many modes and can be informal (such as brief casual discussions with students as to their responses to clients or the way they drafted a document) and formal (for example, scheduled file review meetings or mid semester appraisals) or a mixture of both� summative assessment can be by way of a written case study or reflective essay� however, stefani notes that assessment is not just about measuring whether students can deliver a ‘product’ at the conclusion of the learning period,94 but should also be about assessing the learning process itself� this supports the notion that the ongoing assessment of the acquisition, development and refinement of emotional and narrative intelligences (often demonstrated via the reflective journaling process) can be a useful vehicle of student learning� irrespective of the tools that are used for assessment, it is imperative that the multidisciplinary clinic actually assesses the learning outcomes promulgated by the clinic� this was pointed out by stuckey in the incredibly helpful clea best practice report: “outcomes should be measurable� it is self-defeating to state an outcome which cannot be assessed� at the same time, it is important not to be bound by the expectations of objective decimal place accuracy� in this context “measurable” means a general judgment of whether students know, think, and can do most of what we intend for them”�95 if the expectations on students and the learning outcomes of the clinic are made explicit, students can be assessed on practical skills such as interviewing, advising, file management and letter writing 89 see, for example, diane m� mirabito (2011) above n 54� 90 see, for example, simon rice, ‘assessing – but not grading – clinical legal education’ (2007) macquarie law wp 16; ross hyams, (2006) ‘student assessment in the clinical environment – what can we learn from the u�s� experience?’ 10 international journal of clinical legal education 77; stacy brustin& david chavkin, (1997)‘testing the grades: evaluating grading models in clinical legal education’ 3 clinical law review 299; evans & hyams, above n 77� 91 id� 92 evans & hyams, above n 77 at 71� 93 hyams, above n 42� 94 lorraine stefani “assessment in partnership with learners” (1998) 23(4) assessment & evaluation in higher education 339 at 344� 95 roy stuckey et al� clea best practice report (2007) clinical legal education association u.s.a at 49. 457 the value of incidental learning in a multidisciplinary setting as well as the less tangible skills such as reflection, professionalism, creativity, collaboration and teamwork� many of these less tangible skills are also learnt via the vehicle of incidental learning and can be also be reliably assessed� assessment rubrics which identify both practical and less tangible skills can be created which are provided to the students at the outset of their placement in the clinic, and formative feedback provided to students as to whether they are being successful in attaining the skills and qualities expected of them� an assessment rubric of this sort needs to be comprehensive and versatile, enabling students to obtain marks in various areas of both the practical and less abstract skills being taught intentionally and acquired by students in their participation in the clinic�96 this is quite a burdensome task for clinical educators, as it requires much commitment to the assessment regime in terms of observation of the students, appropriate scrutiny and analysis of their performance97 but the outcomes for the students of detailed, timely and continuous feedback which is linked to the learning outcomes of the clinic greatly enhances their learning experience� social work educators are interested in promoting good learning outcomes driven, according to mcdonald,98 by a responsibility for the “well-being of a student’s future clients�”99 social work literature, she suggests, describes student self-efficacy in terms of client outcomes and students’ readiness for practice� continuous improvement in skills education to increase student self-efficacy is recommended� promoting skills in “critical analysis and problem solving within a framework of ethicality”100 is also supported� pocket emphasises the need to prepare social work students with the skill, insight and critical ability to deal effectively with the uncertainties of practice in the postmodern world�101 these skills are assessed during field placement by clinical educators against relevant learning areas� all learning – observed, documented, reported and practiced, structured or incidental is constructively reviewed for discussion during supervision and placement reports provided to the individual student as feedback and evidence of their experiential learning for practice� team based learning evident in multidisciplinary settings assists students to investigate, discuss and explain the best approach to addressing the complex world of professional practice�102 learning about the dynamics of working with others to achieve shared goals involves each student taking some responsibility for outcomes� this learning may develop at different stages for each student�103 ensuring students are assessed fairly and are held accountable for their contribution requires feedback to both individuals and teams about their performance that is frequent and timely� assessment of outcomes can include evaluations of student engagement, supervisor satisfaction as well as student attainment of the specific knowledge and skills necessary for practice� research to date demonstrates that the learning outcomes for students in the team based 96 ross hyams (2006) “student assessment in the clinical environment – what can we learn from the u�s� experience?” 10 international journal of clinical legal education 77 at 87� 97 id 98 catherine mcdonald (2007)“this is who we are and this what we do: social work education and self efficacy” (60) (1) australian social work, 83 � 99 ibid 85� 100 catherine mcdonald above n 106 at 85. 101 rosalie pockett above n 44. 102 judy gillespie above n 48 103 rosalie pockett above at n 44 at214-215. 458 international journal of clinical legal education issue 20 multidisciplinary clinic are significant�104 conclusion – implications for the future to a large extent, our multidisciplinary clinic it still in its pilot phase� the supervisors are constantly learning along with the students� however we have identified, through this research, that incidental learning that has been taking place and the value derived by the students therefrom include the micro skills needed for practice; learning about student preferences for contexts of practice; working with other professionals from their own and different disciplines as well as what approach is most effective with their clients� we believe that we now have some opportunities to capitalize on these benefits� we need to find ways to maintain and nurture an incidental learning environment in order to improve proficiency and transfer of learning in the clinical setting� part of doing this is simply awareness of the value of incidental learning� it also includes the provision of opportunities for students to indulge in what harrison owen refers to as “spontaneous corridor conversations”105 – this requires “open space technology”106, that is, not only informal areas for students to work and socialize, but informal time for them to do so� inevitably, providing both this space and time may require changes in workroom geography and in timetabling client interviews, seminars and other formal learning times� it may mean a reduction in formal teaching time or in the way this is delivered, in order to maximize informal learning opportunities� clinical educators can assist students to link their theoretical learning to workplace practice� this significant learning may be informal or incidental and developed in collaboration with teams of professionals from different disciplines� learning to work with other disciplines in a team context is a particularly relevant skill for social work students, who may find their social work role in the workplace not always clearly defined�107 shared learning experiences (as noted by a number of students in this research) have many benefits that often occur incidentally� most importantly, this includes an increased understanding of the motives and intentions of other professionals, as well as the cultures that influence their practice� the “growth and transformation” of students into professionals occurs from learning from experiences that may be made transparent or more evident to students during the practice of their micro skills in a real life context� some of this learning is incidental and uniquely dependent on the individual student and their experience of the practice context� such educational contexts are found in inter and multidisciplinary practice settings�108 according to research conducted by enos, kehrhahn and bell, “proficiency is the result of informal learning�”109 finding opportunities for learning naturally where support and feedback are available was a critical finding by eraut�110 104 judy gillespie above at n 52 at 378, 382� 105 owen h (1997) open space technology: a users guide� san francisco: berrett-koehler publishers 106 id� 107 rosalie pockett above n 44� 108 j lave & e wenger (1991) situated learning: legitimate peripheral learning� in r pea & js brown (eds) learning in doing: social, cognitive and computational perspectives cambridge university press pp 121 -122� 109 m enos, m kehrhahn&a bell (2003) ‘informal learning and the transfer of learning: how managers develop proficiency’ 14 (4) human resource development quarterly 369 110 michael eraut ‘informal learning in the workplace: evidence on the real value of work-based learning (wbl),’ development and learning in organizations, (2011) vol 25 iss:5, pp�8-12� 459 the value of incidental learning in a multidisciplinary setting our early research from the multidisciplinary setting previously discussed also supports these findings and provides student perspectives on the value of their experiential learning� as such, the results of this research and our new understandings of informal learning provide clinical educators with challenges in order to maximize the incidental learning benefits students receive from a multidisciplinary clinical environment� clinical educators have a responsibility to actively engage students in interactive and innovative initiatives� acknowledging the value of incidental learning for all students, no matter what the discipline, is an important factor in ensuring education prepares graduates well for the increasingly complex workplaces of today� 460 international journal of clinical legal education issue 20 practice report – clinic, the university and society 135 immigration university clinics and regulation: a working case study frances ridout* (queen mary university of london, uk) deirdre gilchrist (office of the immigration services commissioner, uk) jeremy dunn (office of the immigration services commissioner, uk) abstract: this paper seeks to introduce readers to the regulation of immigration advice, and how this can work in practice in clinical legal education. the case study of queen mary legal advice centre demonstrates that although the statute does not ideally seem to fit with the regulation of university law clinics, it is possible to be compliant. far from being a negative aspect, regulation in these unique legal advice settings can actually provide a rich ethical learning environment and produce well rounded future lawyers. the office of immigration services commissioner the office of the immigration services commissioner (oisc)1 is the statutory regulator of immigration advice and services in the united kingdom. the oisc was established by part 5 of the 1999 immigration and asylum act2 in response to growing concerns that vulnerable migrants, in particular asylum seekers, were falling prey to *frances ridout is director of the legal advice centre at queen mary university; deirdre gilchrist is head of operational regulation and jeremy dunn is a case worker at oisc 1 https://www.gov.uk/government/organisations/office-of-the-immigration-services-commissioner (as of 17/08/18). 2 https://www.legislation.gov.uk/ukpga/1999/33/section/83 (as of 17/08/18). https://www.gov.uk/government/organisations/office-of-the-immigration-services-commissioner https://www.legislation.gov.uk/ukpga/1999/33/section/83 practice report – clinic, the university and society 136 unqualified and unregulated immigration advice providers. large numbers of refugees and other migrants, who were seeking advice and assistant in navigating the increasingly complex immigration rules and asylum procedures in the uk, were easy targets for unscrupulous advisers. with little understanding of how long various immigration decisions would take or the work involved, clients paid large sums of money for assistance with some discovering at a later point that no work had been undertaken on the required application. migrants would unknowingly become over stayers with many facing re-entry bans. even within the charitable sector, wellmeaning but incompetent advice was provided which could be just as devastating to the client’s long term prospects of leave to enter or remain in the country. the oisc has been in operation for the last 17 years and currently regulates approximately 3000 advisers operating in 1500 registered organisations. any person providing immigration advice and services in the uk who is not already regulated by a designated qualifying regulator (dqm)3 and thus a ‘qualified person’ under the act, must be regulated by the oisc in order to provide immigration advice and services. that is those that relate to an application to the uk authorities for any type of leave to enter or remain (including asylum and immigration bail work), applications for british nationality and citizenship and admission to or residence in the uk under eu law. it is important to note that it is the entity that the oisc registers 3 designated qualifying regulators include the general council of the bar, law society of england and wales, chartered institute of legal executives, faculty of advocates, law society of scotland, general council of the bar of northern ireland, law society of northern ireland. practice report – clinic, the university and society 137 and through the entity, the immigration advisers that provide the advice and services. to provide immigration advice and services while not regulated is a criminal offence4 and the oisc investigates and prosecutes those who operate when not authorised to do so. the statute whether individuals working within certain bodies are in fact regulated by a dqm can be complex. solicitors working in law firms and barristers in chambers are likely to be fully regulated by their respective regulatory bodies, further; they are normally permitted to supervise non-legally qualified staff to also provide immigration advice and services acting on behalf of the regulated organisation. outside of law firms and chambers the situation becomes less clear. solicitors working in practices which are authorised to operate by a dqm set up under the alternative business structure can also supervise non-legally qualified staff and these individuals do not need to be regulated by the oisc. however, practicing solicitors working in law centres and certain charitable organisations that have been permitted to employ solicitors to provide advice and services to the public are not (in england and wales) permitted to supervise others. this means that while practicing solicitors in these settings may be regulated by the solicitors regulatory authority, or barristers regulated by the bar 4 https://www.legislation.gov.uk/ukpga/1999/33/section/91 (as of 17/08/2018). https://www.legislation.gov.uk/ukpga/1999/33/section/91 practice report – clinic, the university and society 138 standards board, non-legally qualified staff providing immigration advice and services must be regulated by the oisc. this therefore applies to students working in clinical legal education (whether under the supervision of employed and qualified clinicians or volunteer barristers or solicitors). where do university law clinics fit in the statute? what does this mean for law clinics operating in the uk who provide immigration advice and services to the public? those operating in england and wales will need to consider carefully how they deliver their advice and services. where they are provided completely through a practicing solicitor, with all advice and any representations made to the uk immigration authorities’ being made in their name, then it is likely they will not need to be regulated by the oisc even if students assist in the research or gathering of information that supports a particular application. however, if advice and services are provided in the name of the law clinic then the law clinic (or any other similar type of organisation) as an entity, and any non solicitor staff will need to apply to the oisc for regulation. law clinics operating in northern ireland and scotland should confirm with their respective regulators if they regulate students who provide immigration advice and services in the name of the law clinic. practice report – clinic, the university and society 139 a working pilot: the queen mary legal advice centre the queen mary legal advice centre (qmlac)5 is a free community legal advice centre based in the heart of east london an area particularly marred with a reputation for untrustworthy immigration legal advice. qmlac engages undergraduate students in the provision of legal services across a range of clinics including those which cover immigration advice; a general immigration clinic, pink law (where the immigration issues relate to membership of the lgbt+ community) and the eu aire hub (legal queries relating to the free movement of people within the european union). the clinics are advice only, rather than representation. clients attend for appointments and provide the detailed facts of the case to the student who is supervised by a barrister or solicitor (both at the appointment and when compiling the advice). the supervised legal advice is then sent to the client, in writing, within 14 days of their appointment. the advice will typically undergo legal checks from the volunteer barrister or solicitor, and professional checks (such as proof reading) from centre staff. in the academic year 2017-18 there were thirty five clients across these three clinics who received immigration legal advice. fifteen students advised in these areas. there is no doubt that the regulatory position of university law clinics has been a confused picture for some time. it was summer 2017 when the qmlac approached oisc to try and resolve the issue of compliance. far from the reprimanding that the 5 http://www.lac.qmul.ac.uk/ (as of 17/08/18). http://www.lac.qmul.ac.uk/ practice report – clinic, the university and society 140 qmlac expected, the oisc praised the clinic and took a flexible approach to regulation to allow the centre to continue operating in this area. this type of hybrid organisation (not a law centre or a firm) was new to oisc, and quite early on in the discussions it became apparent that a flexible approach was most suitable. step 1: register the clinic: the qmlac completed the relevant form6 to get the organisation registered as an oisc approved body to provide immigration legal advice. the form is primarily designed for independent advice offices meaning some of the information requested was more difficult for the law clinic to provide (for example accounts). however discussions with the oisc around such issues meant that the forms were simple to complete and qmlac became registered a few months later. further, as part of the registration it was necessary to list the barristers and solicitors who volunteer at the qmlac. although a comprehensive list was given, the oisc were pragmatic in realising that sometimes other people from the same law firm may step in at short notice to cover for a busy colleague. the qmlac demonstrated that there were good procedures in place for when this happened to both record the new volunteer details and train them in the qmlac procedures. registration had the added benefit that the qmlac was able to advertise that they were oisc registered (and display the logo on their website). 6https://www.gov.uk/government/publications/oisc-application-for-regulation-of-a-new-legal-entity (as of 17/08/18). https://www.gov.uk/government/publications/oisc-application-for-regulation-of-a-new-legal-entity practice report – clinic, the university and society 141 step 2: authorising the advisers: the turnover of students involved in clinics (whether immigration or otherwise) is always high. further, the academic year is very short, meaning that the moment students start in september / october they need to be in a position to hit the ground running in order to complete a sufficient number of cases and have a meaningful educational experience. applications for new advisers are two fold; firstly students need to complete an oisc ‘new adviser application and competence statement’7. this relatively straightforward form can be completed within 20 minutes or so with guidance from a member of staff. again, oisc took a pragmatic position when the forms asks for applicants to list all jobs and work experience and helped incorporate the qmlac standard training and the student’s degree courses into the form. this helped to keep the process streamline. qmlac had a specific workshop for students to attend to complete this form with a member of staff who had previously liaised with oisc. the staff member was able to help students with stock phrases relating to training and their degree which could be inputted. secondly applicants need to have a suitable data barring service (dbs) check. as part of queen mary university, all the qmlac dbs checks needed to go through a central team. in this case it was the central widening participation team. dbs forms are 7 https://www.gov.uk/government/publications/new-adviser-application-and-competence-statement (as of 17/08/2018. https://www.gov.uk/government/publications/new-adviser-application-and-competence-statement practice report – clinic, the university and society 142 lengthy and can be complex (especially for foreign students). submitting these forms and sending them in with copies of appropriate documents was a very lengthy and drawn out task. the oisc registration was delayed pending the return of the dbs certificate. there were further complications in the certificates sometimes being sent by the dbs service to old addresses that students were in when they did finally come through. this all produced the undesirable consequence that students were nearly finishing their 6 months at the qmlac when their authorisation was complete. this authorisation of advisers was taking up a lot of staff time and causing logistical difficulties. to try and address this issue in the academic year 2018-19 there has been an earlier selection of students so forms can be completed and submitted before the summer break. it was also agreed that the oisc forms could be submitted before the dbs checks have been returned. qmlac students are registered as level 1 advisers8 with permission by the oisc to provide immigration advice and services up to level 2 under supervision. if qmlac wanted to offer advocacy in immigration matters (level 3 work), the students would need to gain authorisation at level 2 which would require additional application procedures for qmlac in additional assessment of the students competence. 8 https://www.gov.uk/government/publications/competence-oisc-guidance-2012 (as of 17/08/2018). https://www.gov.uk/government/publications/competence-oisc-guidance-2012 practice report – clinic, the university and society 143 advisers seeking authorisation with the oisc normally undertake a written competence assessment. at level 2 and 3 this involves a written exam paper taken under exam conditions at an oisc test centre. any adviser authorised by the oisc may apply through the registered organisation to take assessments at higher levels. there is no cost to the individual or organisation to make such an application. law clinics might therefore consider whether they wish to make such applications for students where they feel the student has gained sufficient knowledge and experience and is interested in gaining a higher level of authorisation. it is worth noting that qmlac students are only authorised at qmlac to give legal advice. the authorisation granted to any oisc adviser is not transferable to another organisation, thus a queen mary student would not be entitled to provide immigration advice and services at another clinic or to provide immigration advice or services outside of qmlac. again underpinning that it is the centre which is registered then the adviser through the centre. step 3: auditing: the qmlac has been visited twice by the oisc. firstly a visit was made prior to registration. the oisc considered the premises, handbooks, procedures and client file format to check that it was to a certain standard. after a year of registration, the oisc completed an audit of the centre. as is standard, a list of immigration cases was submitted in advance of the visit. the visit itself took half a day. cases were randomly selected, viewed in electronic format by the oisc and a follow up letter practice report – clinic, the university and society 144 outlining the visit was issued. the preparation for, and timing of doing the audit is not arduous (providing of course that everything is in order). reflection and the future there is no doubt that the regulation of law clinics is complex9 and has not been fully resolved. this niche area within that wider gap can feel like an added layer of intricacy asking already stretched clinicians deal with more bureaucracy. there is no doubt that the gaining authorisation for each student adviser within the qmlac is more work for clinicians. both the oisc and qmlac have tried to approach this seemingly adverse situation with a fresh layer of flexibility and enthusiasm. as such some benefits have arisen. • it provides a real and current clinical example of regulation to the students. this means from an early stage in their education students do not view regulation as a negative to be feared but as a protection mechanism for vulnerable clients and the profession. • regulation has been a rich learning ground for developing a deeper understanding of professional ethics. students at the qmlac undertake reflection sessions at ‘breakfast club’ where the sra principles10 and the bar core duties11 are regularly discussed. linking these to clinical work (especially 9 linden thomas (2017) law clinics in england and wales: a regulatory black hole, the law teacher, 51:4,469-485, doi: 10.1080/03069400.2017.1322858 10 part 1 of the sra handbook. published on 1st october 2017. 11 bsb handbook, version 3.2, updated february 2018, part 2, b. https://doi.org/10.1080/03069400.2017.1322858 practice report – clinic, the university and society 145 those relating to regulators) can sometimes be difficult. this relationship between the oisc and the qmlac provides a simple backdrop to introduce the importance of regulation and link it to a student’s duty to their client and their duty to provide a good standard of care. • students see beyond their clinical setting and are introduced to the wider legal world. through discussions as to the reasons behind regulation they see that the idyllic world of being a barrister or solicitor is not always correct. this sense of realism adds a layer of maturity to student thinking which they take forward to employment interviews. of course there are further changes to be made, and in an ideal world the statute would be amended to allow more flexibility to students in a clinical setting. essentially a recognition that students in clinics are very heavily supervised and that students more often than not feel a deeply committed sense of responsibility to their clients. exactly how this flexibility would be inputted is yet to be seen, but removing the need for a dbs check and / or simplifying the adviser authorisation process would be an important step. if this article has the intended outcome of attracting more clinical legal education initiatives to provide immigration legal advice, this will create more student advisers needing to be authorised. as more clinics start to register with the oisc it will in all likelihood be necessary for the oisc to consider further where efficiencies in the application process might be made, especially when the advisers are usually only practice report – clinic, the university and society 146 needing to be registered for a short period of time such as six months. this may of course lead to changes in the individual adviser authorisation process. however, for the moment the statute remains solid and an in-depth two stage registration process continues, with consideration of the fitness of the clinic itself (how it operates and is managed) and the fitness and competence of the student advisers. previous poor legal advice it is perhaps unsurprising that free law centres and university clinics who offer immigration advice will be some of the front line services to hear of unscrupulous immigration legal advice which clients have previously paid for. the oisc is committed to protecting vulnerable people and stopping poor advice. should your law clinic be aware of clients who have received poor quality immigration advice and services from any person in the uk, the oisc can take such complaints and investigate. if the complaint relates to a person regulated by another dqr the oisc will refer this matter on. where it relates to an oisc registered adviser the oisc will look to investigate the matter themselves. clients may be reluctant to make complaints, particularly if their own immigration status is precarious. as an independent body the osic will never share information with the home office related to a client. their interest is in the adviser only. law clinics can support a client to make a complaint or can make one on their behalf. a complaint that includes details of the specific client is always best as it means the oisc can look into the individuals practice report – clinic, the university and society 147 matter fully, however complaints can also be made which do not name the client but raise an issues of concern around a particular adviser12. the opportunities for teaching ethics which arise from working closely with a regulator are both obvious and subtle. the obvious professional ethics principles to discuss with students include; upholding the rule of law and the proper administration of justice13, delivering a competent standard of work14, and acting with integrity15 etc. but there is a pool of rich learning in situations where clients come to clinics having received bad previous legal advice. is there a duty for the clinic to inform the client that they could make a complaint to the oisc or elsewhere? is there actually a duty on an oisc regulated clinic to make an anonymous complaint themselves? how does a clinic uphold confidentiality in these circumstances? is making a complaint against the wishes of a client acting in their best interests? we are all well aware of the rich and diverse range of ethical issues that clinical legal education already produced. mixing in a regulator which students have to actively 12 https://www.gov.uk/find-an-immigration-adviser/complain-about-an-adviser (as of 17/08/2018) 13 the solicitors regulation authority principle 1 (https://www.sra.org.uk/solicitors/handbook/handbookprinciples/part2/content.page as of 17/08/18), and the bar standards board core duty 1 (http://handbook.barstandardsboard.org.uk/handbook/part-2/ as of 17/08/2019). 14 the solicitors regulation authority principle 5 (https://www.sra.org.uk/solicitors/handbook/handbookprinciples/part2/content.page as of 17/08/18) and the bar standards board core duty 7 (http://handbook.barstandardsboard.org.uk/handbook/part-2/ as of 17/08/18). 15 the solicitors regulation authority principle 2 (https://www.sra.org.uk/solicitors/handbook/handbookprinciples/part2/content.page as of 17/08/18 as of 17/08/19), and the bar standards board core duty 3 http://handbook.barstandardsboard.org.uk/handbook/part-2/ as of 17/08/18). https://www.gov.uk/find-an-immigration-adviser/complain-about-an-adviser https://www.sra.org.uk/solicitors/handbook/handbookprinciples/part2/content.page http://handbook.barstandardsboard.org.uk/handbook/part-2/ https://www.sra.org.uk/solicitors/handbook/handbookprinciples/part2/content.page%20as%20of%2017/08/18 http://handbook.barstandardsboard.org.uk/handbook/part-2/ https://www.sra.org.uk/solicitors/handbook/handbookprinciples/part2/content.page%20as%20of%2017/08/18%20as%20of%2017/08/19 https://www.sra.org.uk/solicitors/handbook/handbookprinciples/part2/content.page%20as%20of%2017/08/18%20as%20of%2017/08/19 http://handbook.barstandardsboard.org.uk/handbook/part-2/ practice report – clinic, the university and society 148 join (rather than the sra / bsb which may feel like a lifetime away) can be another tool to pass over the student responsibility to ensure deeper learning. conclusion clinics work hard to ensure that some of the most vulnerable in society are respected and not taken advantage of, while teaching students good practice. both these principles underpin the work of the oisc who concurrently want to support the provision of good quality, (usually free) legal advice that clinics provide to this vulnerable group in society. while there is undoubtedly some bureaucracy involved in the oisc registration process it is clear that the oisc do not wish to create barriers to innovative programmes such as those designed by law clinics. the oisc recognise that such programmes not only provide a much needed service to local communities but lay the ground work for competent and ethical immigration advisers of the future. should you be concerned that your law clinic may need to be regulated by the oisc please contact the voluntary sector support group at the oisc (vss@oisc.gov.uk). you can e-mail the group with details of how the law clinic operates and we will confirm for you if you do need to be regulated. it is worth noting that how services are delivered affects whether the clinic will need to be registered with the commissioner. mailto:vss@oisc.gov.uk practice report – clinic, the university and society 149 the voluntary sector support group at the oisc also has a dedicated section on their website which provides advice about regulation specifically for the voluntary and community sectors which may be helpful to consult. this can be found at https://www.gov.uk/government/publications/guidance-for-the-community-andvoluntary-sector https://www.gov.uk/government/publications/guidance-for-the-community-and-voluntary-sector https://www.gov.uk/government/publications/guidance-for-the-community-and-voluntary-sector editorial the ‘no apology’ apology elaine hall northumbria university, uk elaine.hall@northumbria.ac.uk dear colleagues, it has been a very busy year so far and at the recent association of law teachers conference i attended many sessions on wellbeing – for law students, practicing lawyers and for legal academics. this led me to think about my own wellbeing, the many strands of my work and how i position myself in relation to each strand. i love being the editor of this journal, discussing ideas, reading early drafts and managing the review process. it is an ‘iceberg’ process – there is much more going on under the surface than shows up in the issue and that’s fine, except that in the final moments i have to construct an editorial and in those final moments i find i have little to say. the pieces speak for themselves, with their own eloquent voices and the process of introducing and linking them seems, to me, redundant. so this time, at least, i’m not going to do it. please let me know if this significantly detracts from your enjoyment of the journal and i will reconsider it. meanwhile, welcome to your late-blossoming spring edition. research opportunity promoting wellbeing through clinical legal education   calling all legal academics and clinical legal educators!   are you actively involved in teaching a clinical subject? have you taught a clinical subject in the past? have you contributed to teaching a clinical subject?   a research team at monash law faculty would like to invite you to complete brief questionnaire which provides an indication of your motivational orientation. your involvement will contribute to clinical legal education scholarship, and it will help the research team to explore ways in which clinical legal education might be associated with law student wellbeing. you may also benefit from reflecting on your own motivations for teaching!  for further information please contact: claire carroll, student researcher     faculty of law phone:  0484006270 email: claire.carroll@monash.edu clinical events the association for canadian clinical legal education (accle) will be returning to western university, faculty of law, for their 10th annual conference, “looking back, moving forward: future challenges for clinical legal education in canada”. june 12-14, 2019. encle – ijcle 2019 comenius university, bratislava, slovakia 3-5thjuly improving the future: using clinical legal education to educate lawyers for a just society in this year’s conference we look at a core goal of clinical legal education – justice. as the world faces unprecedented challenges in terms of climate, challenge to the rule of law and political and social upheaval, the conference provides an opportunity to consider and plan for the role of clinical legal education in this new environment. as always papers are welcomed from the broad spectrum of clinical legal education and particularly on the following themes: · the role of clinic in maintaining liberty rights and advancing the rule of law · climate change and environmental justice through clinical legal education · educating future lawyers – in what ways can clinic shape future lawyers’ aspirations and contributions to a just society? · researching the impact of clinic · interdisciplinary approaches to advancing justice and educating for a just society · technological innovation in the pursuit of a just society: access and information for all in the law conference registration still open gaje worldwide conference to be held in indonesia 4-10 december 2019 here are the particulars (full details, including the online registration form, can be found on the gaje website at: www.gaje.org/2019_conference_home ). location and format: the conference will take place on the campus of pasundan university in bandung, indonesia (approximately 100 miles southeast of the jakarta international airport). the conference will consist of two parts: 1) a general conference with plenaries and concurrent sessions on various themes and topics (4-8 december); and 2) a training-of-trainers (tot) workshop on practical aspects for implementing justice education, including clinical teaching methods (9-10 december). conference theme and streams: the overall conference topic is “the inspiration and diversification of justice education”; sessions will be organized into fourteen thematic streams: o achieving greater rule of law and access to rights and justice for marginalized, excluded or vulnerable clients/communities (such as persons with hiv, disabilities, migrants etc.) through justice education o the science of learning: latest developments and challenges multiple and multidisciplinary approaches from neuroscience, psychology, medicine, pedagogy, etc. o legal empowerment and justice education (this includes community legal education/legal literacy/street law) o pro bono and justice education o academic writing/scholarship and justice education (research design, interdisciplinary research, measuring impact of justice education, etc.) o how to – sharing best teaching methods, information technology and innovative ideas for justice education o the development and sustainability of justice education initiatives o justice education collaboration (networking, multidisciplinary collaborations, international and cross-border projects, etc.) o professional responsibility, legal ethics, and professional identity formation o through justice education o justice education from the students’ perspectives o well-being and reflective legal practice o cross-cultural lawyering and justice education o achieving the sustainable development goals through justice education o the justice education inspiration hub: (justice education posters/banners) fees, waivers and grants: the registration fee is $us 350 for the general conference and $us 425 for both the general conference and the training-of-trainers (tot) workshop. (starting on september 15 there will be late fees of $us 425 for the general conference and $us 500 for both the general conference and the tot workshop.) persons who cannot pay the full conference fee can request a fee waiver or a fee reduction by completing a special section of the registration form. gaje also provides a limited number of grants for travel and accommodations. please note the following deadlines: the registration deadline is 1 november. however: the deadline for applications for travel/accommodation grants (including those requesting both a grant and fee waiver/reduction) is 1 june; the deadline for submission of proposals is also 1 june; the deadline for applications requesting only a fee waiver/reduction (that is, without also requesting a grant) is 1 august. if you have any questions about the registration process or seek clarification of any conference policies or instructions, you may send an email to registration@gaje.org. further information about gaje’s past eight worldwide conferences is available on the gaje website at www.gaje.org/conferences/past-conferences. 1 special issue: adrian evans festschrift special issue: adrian evans festschrift reflections on adrian evans’s contributions internationally to clinical legal education and legal ethics peter a. joy[footnoteref:1]* [1: * henry hitchcock professor of law, vice dean for academic affairs, and director of the criminal justice clinic at washington university in st. louis school of law. i am grateful to the international journal of clinical legal education and especially professor elaine hall for publishing the festschrift proceedings and professor kate seear for editing this special issue. ] it is a privilege to join you today in honoring the work of adrian evans. you have already heard much about adrian, and i will not belabor the point too much – adrian is a wonderful person, colleague, teacher, lawyer, scholar, and friend. nigel duncan has already told you much about adrian’s work internationally, so i will focus more on his contributions to and impact on clinical legal education and legal ethics internationally. my focus is on adrian as a lawyer, teacher, and scholar. i assume that most of us have heard of six degrees of kevin bacon. if you have not, it is based on the theory that any two people on earth are six or fewer acquaintance links apart. with kevin bacon, it assumes that anyone involved in the movie business can be linked through their film roles either to kevin bacon or someone he worked with in six steps or less. for example, the australian film star toni collette was in the sixth sense with bruce willis, bruce willis was in the player with tim robbins, and tim robbins was in mystic river with kevin bacon. that puts toni collette within three degrees of kevin bacon. when it comes to the international clinical legal education and international legal ethics communities, everyone is within three degrees of adrian evans. this is a testament to adrian’s reach, but also it is fortunate for everyone at this festschrift. why you may ask? well, if you have been following along you should realize that because you know adrian you are within one degree of adrian, and everyone you know is within two degrees of adrian. i strongly doubt that there is anyone on this planet who does work in the clinical legal education and legal ethics fields who doesn’t know adrian, you, or those you know. adrian’s interests and motivations for the work he has done as a teacher and scholar come from his personal commitment to be an effective, ethical lawyer, and he has been, and continues to be that and much more. adrian wrote about his philosophy in one of his many publications, the book the good lawyer. adrian’s focus is both practical, and theoretical, as this slide about the obligations of legal practitioners illustrates.[footnoteref:2] [2: this slide is from adrian evans, “inside ethical practice,” available at https://slideplayer.com/slide/13596714/. ] through his work as a clinical teacher, adrian continued to provide much-needed legal assistance to those unable to afford an attorney as he taught and mentored hundreds of students in how to be effective, ethical lawyers. by helping law students learn how to apply what they learned about the law to help individuals and families, adrian has made a significant positive impact on society and, through the work of his former students, he continues to do so. adrian is also a great teacher. adrian won various teaching awards, including the monash vice-chancellor’s award for distinguished teaching, and i have seen adrian in action at conferences doing engaging, thoughtful presentations. i was also fortunate to sit in on some of adrian’s supervision sessions with students when i was a sue campbell visiting scholar at monash. i was impressed not only by his effectiveness as a teacher, but with his extraordinary efforts aimed at ensuring the emotional health of his students dealing with difficult issues their clients faced. i learned a lot from observing him. adrian’s teaching career started in the 1970s with his work on developing the clinical interviewing program for legal studies’ students, and professor mary anne noone has discussed in depth, and much better than i, adrian’s teaching career. but, to put adrian’s teaching career in perspective, here is a short recap. from 1988 to 2000, adrian was the coordinator of springvale monash legal services, the first clinical program in australia. during this same time, adrian’s career blossomed as he progressed from 1988 to 1995 as lecturer in law, to senior lecturer in law from 1995 to 2000, and he has been a professor of law since then. the next phase, which dean bryan horrigan has recently announced is adrian’s new status as emeritus professor of law. as a teacher, adrian also focused on understanding, and helping all of us in the international clinical legal education community to understand, the pedagogy associated with effective clinical teaching. here is one of his slides illustrating effective and engaging teaching.[footnoteref:3] [3: this slide is from adrian evans, “learning lunchbox: thinking through your ethical response,” available at https://www.slideshare.net/rachelsaffer/evans-learning-lunchbox-presentation-on-stimulating-ethical-thought-24-nov-2014. ] lastly, adrian is a prolific scholar with a global reach. from 1998 to 2017, adrian authored or co-authored nine books, thirty-nine articles, five book chapters, five additional papers or reports, and edited or co-edited six books.[footnoteref:4] adrian’s research interests in clinical legal education run the gamut of every important area of the field. among his many works are books and articles on establishing best practices for clinical legal education,[footnoteref:5] student moral development in clinical legal education,[footnoteref:6] the pedagogy of specialist clinics,[footnoteref:7] practical skills development and effective skills teaching,[footnoteref:8] and assessment of and evaluating clinical legal education.[footnoteref:9] adrian’s work has not only influenced the current generations of clinical legal educators, but adrian’s labors promise to influence future generations as well through his publications. [4: adrian evans research output, monash university, https://research.monash.edu/en/persons/adrian-evans/publications/?type=%2fdk%2fatira%2fpure%2fresearchoutput%2fresearchoutputtypes%2fcontributiontobookanthology%2fchapter. ] [5: adrian evans, anna cody, anna copeland, jeff giddings, peter joy, mary anne noone & simon rice, australian clinical legal education: designing and operating a best practice clinical program in australian law school, 2017, australian national university press; adrian evans, “best practices: australian legal education” the law teacher, 47 (3), 2013, 421-423.] [6: adrian evans, “client group activism and student moral development in clinical legal education” legal education review, 2000, 179-190.] [7: adrian evans & ross hyams, “specialist legal clinics: their pedagogy, risks and payoffs as externships” international journal of clinical legal education, 22 (2), 2015, 147-180.] [8: ross hyams, sue campbell & adrian evans, practical legal skills: developing your clinical technique, 4th edition, 2014, oxford university press.] [9: adrian evans, “global agendas, cultural capital and self-assessment of clinical legal education programs” monash law review, 38 (2), 2012, 55-81; adrian evans & ross hyams, independent evaluations of clinical legal education programs: appropriate objectives and processes in an australian setting” griffith law review, 17 (1), 2008, 52-86.] similarly, adrian’s legal ethics scholarship is far reaching, though laser sharp on developing and inculcating ethical behavior. his most frequent areas of interest include delving inside lawyers’ ethics,[footnoteref:10] assessing lawyers’ ethics,[footnoteref:11] reinforcing the ethics of lawyering,[footnoteref:12] what makes the good lawyer,[footnoteref:13] the ethical infrastructure of legal practice in large law firms,[footnoteref:14] the connection between the ethics of combating money laundering and reducing global poverty,[footnoteref:15] and the relationship of virtue ethics to therapeutic jurisprudence.[footnoteref:16] [10: christine parker & adrian evans, inside lawyers’ ethics, 3rd edition, 2018, cambridge university press.] [11: adrian evans, assessing lawyers’ ethics: a practitioner’s guide, 2011, cambridge university press.] [12: adrian evans, “(self) knowledge is power: reinforcing the ethics of lawyering” law institute journal, 86 (6), 2012, 29-35.] [13: adrian evans, the good lawyer, 2014, cambridge university press.] [14: christine parker, adrian evans, linda haller, suzanne le mire & reid mortensen, “the ethical infrastructure of legal practice in larger law firms: values, policy and behaviour” university of new south wales law journal, 31 (1), 2008, 158-188.] [15: adrian evans, “connections between the ethics of combating money laundering and reduction in global poverty” in maynard, p.d. & gold, n. (eds), poverty, justice and the rule of law: report of the second phase of the iba presidential task force on the financial crisis, international bar association, 2013, 169-174.] [16: adrian evans & michael king, “reflections on the connection of virtue ethics to therapeutic jurisprudence,” university of new south wales law journal, 35 (3), 2012, 717-746.] adrian’s work and career demonstrates that it is possible to be an excellent lawyer, gifted teacher in both clinical courses and the classroom, and a highly regarded scholar. on top of all of these accomplishments, adrian served for several years as the associate dean (staff) at monash law school. for most of us, being proficient in any one of those four areas would be a life’s achievement. so, it is fitting that this festschrift recognizing the work of adrian evans takes place as a prelude to the international journal of clinical legal education conference hosted by adrian evans’ home institution, monash law school. everyone who knows adrian is better for having encountered adrian, and i am privileged to be one of his many friends. on behalf of all of us, adrian’s students, and the clients that adrian and his students have assisted for many years, thank you adrian! 105 110 reviewed article 4 the resource implications of work integrated learning and legal clinics in australian legal system: managing workload, system support and recognition anne hewitt, the university of adelaide law school 1 and natalie skead, the university of western australia 2 abstract work integrated learning (wil) has been embraced as a valuable pedagogy by many australian law schools, which offer students the opportunity to engage in a variety of wil including clinical legal education, placements in law firms and industry projects. however, there is widespread recognition that wil pedagogies have unique resourcing requirements in terms of workload and infrastructure. in addition, there is evidence that academic contribution to wil pedagogies is not positively regarded in the context of academic advancement. this article explores the resources required to deliver legal wil and presents novel data about how this is being accommodated by australian law schools. 1 associate professor, the university of adelaide law school. the 2017/2018 research reported in this article was conducted with the support of australian research council’s discovery project funding (‘regulating post-secondary work experience: labour law at the boundary of work and education’, dp150104516). professor emerita rosemary owens, professor andrew stewart, and dr joanna howe were chief investigators on that project and integral to the collection and analysis of that data. 2 professor natalie skead, uwa law school, the university of western australia. reviewed article 5 this analysis informs the development of specific recommendations for australian law schools on the resourcing of legal wil. introduction: the many voices supporting work-integrated learning in our universities work integrated learning (wil) is an umbrella term used to describe a variety of learning experiences unified by the fact “students engage with workplaces …as a formal part of their studies…”.3 for the purposes of this article, wil is restricted to pedagogies which: (1) engage students in aspects of real work; and (2) are part of a university course of study, usually for academic credit.4 in a legal context, the two typologies of wil which will be examined are internship style placements, where students undertake work within legal workplaces, and clinical legal education.5 wil has been endorsed by a range of stakeholders in the australian tertiary education sector, including the australian government (which in 2020 increased the availability 3 jan orrell, good practice report: work-integrated learning (australian learning and teaching council, 2011) 5. see also debra d burke and robert carton, ‘the pedagogical, legal, and ethical implications of unpaid internships’ (2013) 30 journal of legal studies education 99, 101–7. 4 this is similar to the definition proposed by craig cameron, who defined wil as ‘a tertiary program which combines and integrates learning with its workplace application in the workplace’: craig cameron, ‘the vulnerable worker? a labour law challenge for wil and work experience’ (2013) 14(3) asia pacific journal of cooperative education 135, 136. however, the definition in this article differs in that it is restricted to wil programs offered by universities, not all tertiary education providers. 5 the nature of clinical legal education is considered below, in the text associated with fn 41. reviewed article 6 of funding for wil courses),6 professional accreditation bodies,7 industry and universities.8 wil is undertaken by a significant number of australia’s university students, as confirmed by a national universities australia survey conducted in 2017 of australia’s 39 self-accredited universities. the survey found that more than one third of students enrolled at australian universities had undertaken a wil activity, with some students undertaking more than one.9 there is evidence suggesting there are good reasons for this stakeholder support. data from the national graduate outcomes survey10 (gos) suggests undertaking wil improves graduates’ employability and employment outcomes. thirty-one 6 in 2020, as a part of its job ready graduates package, the australian government encouraged the offering of wil courses by enacting legislation to remove the broad exclusion of ‘work experience in industry’ units of study from commonwealth grant scheme funding: higher education support amendment (job-ready graduates and supporting regional and remote students) act 2020 (cth). this enabled universities to offer more wil courses to commonwealth supported place students. 7 the completion of periods of work experience is often required as a pre-requisite for professional accreditation. for example, to be admitted and enrolled as a barrister and solicitor of the supreme court of south australia, individuals must have graduated with a recognised law degree and have completed ‘a period of workplace experience at an appropriate workplace’ sufficient to satisfy the requirements for admission prescribed in the rules of the legal practitioners and admissions council 2018 (sa) part 2; and the 2020 australasian veterinary boards council requires that 30% of the entire curriculum/coursework for the degree of doctor of veterinary science must be ‘practical, hands-on clinical instruction and experience’ in order for the degree to receive accreditation: australasian veterinary boards council, ‘accreditation standards’ (2020) 32. note, these accreditation standards are currently under review, see https://avbc.asn.au/accreditationstandards-review/ [accessed 2 february 2023]. 8 this is demonstrated by a national joint statement in support of wil by peak bodies representing universities, business, and industry in australia: universities australia, australian chamber of commerce and industry, australian industry group, business council of australia, australian collaborative education network, ‘national strategy on work integrated learning in university education’ (2015). 9 universities australia, work integrated learning in universities (final report, april 2019) 8. 10 the gos is a component of the quality indicators for learning and teaching suite of surveys which is commissioned by the federal department of education, skills and employment. the gos is intended to measure the short-term labour force outcomes of graduates approximately four to six months after completing their qualification. reviewed article 7 universities opted to include five questions about wil in the gos survey administered in 2021, and 30 universities in 2020.11 graduates of universities that opted to include the five additional questions were asked to identify if they completed some form of wil during their degree. those respondents who had undertaken wil were also asked the extent to which they agreed or disagreed that participation in wil had improved their employability outcomes. respondents strongly agreed that the wil activities they completed had done so. in summary, • more than eighty percent felt completing wil enhanced their professional capabilities and improved their job prospects (eighty percent / 80.2%); • close to three quarters felt wil increased their awareness of organisations where graduates could work (seventy three percent / 73.1%); • close to sixty three percent stated wil improved their appeal in the labour market (62.9%) and almost sixty two percent that wil broadened their professional contact network which improved job prospects (61.7%).12 in addition, the 2021 gos data indicated a correlation between completing wil and graduate employment, with participation in workplace-based wil during their degree (as opposed to simulations of real work or completing industry projects on campus) increasing graduate employment. within the same graduating cohort, 11 australian collaborative education network, australian collaborative education network – 2021 summary report for graduate outcomes survey items (report, social research centre, october 2021) (2021 summary report for graduate outcomes survey items); australian collaborative education network, australian collaborative education network – summary report for graduate outcomes survey items (report, social research centre, november 2020). 12 australian collaborative education network, 2021 summary report for graduate outcomes survey items 13. reviewed article 8 graduates who completed workplace based wil had a graduate employment rate of seventy-four percent (74.1%) while those who completed on campus or simulated wil had a graduate employment rate of just sixty-four percent (63.7%).13 this confirms data from the united kingdom, where surveys of employers suggest that completing curricular work experience during higher education can improve employment outcomes after graduation,14 and a 2021 analysis suggesting that completing a curricular internship in the united kingdom tends to improve the employability of recent graduates.15 as well as having potential value for students, wil has been warmly embraced by universities as a signifier of the ‘real world’ relevance and industry connection of degree programs.16 this can become a tool to re-market a traditionally academic course with a ‘vocational’ aura that may make it more attractive to potential students 13 ibid 15. 14 carys roberts, the inbetweeners: the new role of internships in the graduate labour market (report, institute for public policy research, april 2017); uk commission for employment and skills, employer skills survey 2015 of 91,000 employers (2015). 15 charikleia tzanakou, luca cattani, daria luchinskaya and giulio pedrini, ‘how do internships undertaken during higher education affect graduates’ labour market outcomes in italy and the united kingdom?’ in andrew stewart et al, internships, employability and the search for decent work experience (edward elgar, 2021) 55, 72. 16 for example, the university of wollongong (uow) states: ‘at uow, we focus on teaching not just specialist knowledge, but also the skills needed to embrace change and solve tomorrow's challenges. that's why practical experience, like an internship, is incorporated into every degree’: https://www.uow.edu.au/study/high-school/7-things-youll-learn-from-doing-an-internship/ [accessed 2 february 2023]. the university of adelaide states: ‘internships are the perfect complement to your academic studies. they give you the chance to apply the principles and theories you learn in the classroom to real, meaningful work in a professional setting—and that’s just the start’: https://www.adelaide.edu.au/internships/students [accessed 2 february 2023]. https://www.uow.edu.au/study/high-school/7-things-youll-learn-from-doing-an-internship/ https://www.adelaide.edu.au/internships/students reviewed article 9 seeking the highest future return for their investment in education.17 this approach has been adopted by some australian law schools.18 together, the many voices advocating for wil risk creating a perfect storm, in which all wil opportunities are extolled as beneficial, regardless of context or content. this is problematic, as there is evidence that not all workplace experiences convey equal benefits. in 2020 o’higgins and piñedo undertook a review of research into the impact of workplace learning on employment. their study confirmed that completing curricular wil (as opposed to non-curricular work experience) has a broadly positive impact on graduate employment in a wide range of jurisdictions and industries.19 however, this positive employment correlation was often either only, or more, apparent when wil was directly related to the student’s study,20 or was elective rather than mandatory.21 it seems, therefore, that some wil experiences have more positive employment outcomes for students than others. 17 indra abeysekera, ‘issues relating to designing a work-integrated learning program in an undergraduate accounting degree program and its implications for the curriculum’ (2006) 7(1) asiapacific journal of cooperative education 7, 15. 18 some law schools promote themselves to prospective students by emphasising their employability rates and the starting salaries of their graduates. see margaret thornton and lucinda shannon, ‘”selling the dream”: law school branding and the illusion of choice’ (2013) 23 legal education review 249, 257-65. 19 niall o’higgins and luis piñedo caro, ‘what makes for a “good’ internship?’ andrew stewart et al, internships, employability and the search for decent work experience (edward elgar, 2021) 35, 36-42. 20 niall o’higgins and luis piñedo, citing péter róbert and ella saar, ‘learning and working: the impact of the “double status position” on the labour market entry process of graduates in cee countries’ (2012) 28 european sociology review 742. 21 niall o’higgins and luis piñedo, citing weiss et al ‘the effects of work experience during higher education on labour market entry: learning by doping or an entry ticket?’ (2014) 28 work employment & society 788. reviewed article 10 as well as research into the potentially differential outcomes of participating in different forms of wil, others have examined the risks inherent in wil.22 for example, hewitt et al considered the extent to which student wil participants were covered by a variety of labour law protections, such as prohibitions of discrimination and harassment, and workplace rights, such as regulation of working hours.23 they identified significant gaps in the legislative protections offered to students engaged in wil, exposing these vulnerable workplace participants to a variety of risks. these risks included the absence of protections against being required to work excessive or unreasonable hours, the failure of prohibitions to regulate workplace discrimination and harassment directed towards student wil participants, and potential failures in the educational regulation of wil which meant some students may have sub-standard learning outcomes. they also identified a lack of regulatory knowledge by those developing and running wil programs, and an absence of mechanisms to ensure regulatory compliance in the design and delivery of wil by universities.24 in addition, it seems that students belonging to some equity groups face obstacles which limit their capacity to secure wil placements, or impede their capacity to complete them.25 for example, in 2019 first nations students were less likely than their 22 craig cameron and anne hewitt (2021) facilitating student engagement with wil: a risk management framework for studentships / final report (acen) https://drive.google.com/file/d/1subuufsdvagju14h4jbwjmvnnmm1xha/view [accessed 2 february 2023]. 23 anne hewitt, andrew stewart, rosemary owens & joanna howe j (2021) protecting students at work: australian universities and regulating for quality work experience (adelaide) https://law.adelaide.edu.au/ua/media/1851/protecting%20students%20at%20work_0.pdf [accessed 2 february 2023]. 24 ibid, 25-42. 25 universities australia, n 6, 27–30. https://drive.google.com/file/d/1subuufsdvagju-14h4jbwjmvnnmm1xha/view https://drive.google.com/file/d/1subuufsdvagju-14h4jbwjmvnnmm1xha/view https://law.adelaide.edu.au/ua/media/1851/protecting%20students%20at%20work_0.pdf reviewed article 11 non-indigenous counterparts to participate in wil (31.1% compared to 37.3% of domestic non-indigenous students); as were those students from low socio-economic status (ses) backgrounds (27.8% compared to 48.6% of students from high ses backgrounds); and students from regional (34.1%) and remote (27.2%) areas compared to those from metropolitan areas (37.7%).26 to date, there is no research definitively identifying the reason/s for these differences in participation rates, however it is probable that they result from a variety of factors including: lack of opportunity; inability to cover the direct and indirect (for example, paid work foregone) expenses of completing wil; absence of professional connections which could facilitate securing wil positions; and discrimination in recruitment for wil.27 given the potential differential in the outcomes of various types of wil, patchy extension of workplace protection for participants, and issues of equitable access, it is important that wil courses offered in australian universities are appropriately regulated and monitored. the australian tertiary education regulator, tertiary education quality and standards agency (teqsa), provides guidance on the expectations for minimum standards of wil in australia. they include: • there must be constructive alignment between the learning outcomes of a student’s degree and the wil placement; 26 universities australia, 2020 higher education facts and figures (report, october 2020), 52–3. 27 these are canvassed in hewitt, a., grenfell, l., abiyat, h., hendry, m., howe, j., & whittaker, s. (2022). weighing the cost of expectations that students complete legal work experience. legal education review, 32(1), 109-128 part 2. reviewed article 12 • wil placements must be supported by adequate facilities and infrastructure to enable student success; • policies and procedures must be put in place to ensure wil placements are of high quality and well supervised; and • the wil experience must be educationally sound.28 however, teqsa’s enforcement process for self-accrediting universities is risk based, and it may not rigorously check compliance with these principles, or only do so irregularly.29 this means that universities themselves are largely responsible for ensuring these threshold expectations are met. however, ensuring this for wil courses has resource implications, the nature of which have unique dynamics in some disciplines.30 rather than exploring the resourcing of wil in australia’s higher education sector generally, this article seeks to explore the issue in a single professional discipline: law. in part 1, the article canvasses some of the broad wil resourcing issues identified in educational literature. in part 2, it addresses resourcing issues specific to legal internships and clinical legal education. part 3 considers qualitative data gathered from interviews conducted with 68 personnel at 15 universities around australia about the resource implications of wil in the australian 28 teqsa (2021) compliance note: work integrated learning (version 2.0), 2. https://www.teqsa.gov.au/sites/default/files/compliance-guide-work-integratedlearning.pdf?v=1634017523 [accessed 2 february 2023]. 29 anne hewitt (2022) ‘is legislation governing tertiary work experience effective? exploring the regulatory role played by australian universities’ federal law review 50(1) 62. 30 issues associated with meeting these resourcing demands are examined in hewitt et al protecting students at work (n 21 above) pp 39-41. https://www.teqsa.gov.au/sites/default/files/compliance-guide-work-integrated-learning.pdf?v=1634017523 https://www.teqsa.gov.au/sites/default/files/compliance-guide-work-integrated-learning.pdf?v=1634017523 reviewed article 13 tertiary education sector generally. in part 4, it sets out novel qualitative data gathered from a survey of the associate deans, learning and teaching (or equivalent) in australia’s law schools about the wil courses they offer and how the workload and resourcing of those courses is managed. this data is discussed in part 5, which informs the development of a series of recommendations for australian law schools, put forward in part 6. part 1: the resource implications of wil pedagogies as discussed above, there is evidence that participating in wil can assist students gain practical skills, develop professional connections, and showcase their worthiness to secure graduate positions, all of which can translate into positive employment outcomes.31 however, evidence suggests not all wil courses deliver equal benefits. overseas data suggests that paid wil positions are ‘associated with better postprogramme outcomes than unpaid’ placements.32 it has been suggested that the remuneration itself is not the reason for this, but that the improved outcomes are rather linked to the more ‘structured and formalized approach’ in paid experiences.33 in contrast, poor quality placements, with inadequate supervision or training (which 31 niall o'higgins and luis piñedo, ‘interns and outcomes: just how effective are internships as a bridge to stable employment?’, (employment working paper no 241, international labour organization, 9 august 2018); universities australia et al, national strategy on work integrated learning in university education (2015). 32 o’higgins and piñedo caro, n 16, 45. 33 o’higgins and piñedo caro, n 16, 53. it is notable that in the australian context completing work experience is associated with better employment outcomes, and that workplace learning undertaken as a part of study is even more effective than extraor co-curricular arrangements: australian collaborative education network, australian collaborative education network – 2021 summary report for graduate outcomes survey items (report, social research centre, october 2021), 15 https://ideas.repec.org/p/ilo/ilowps/994999791602676.html https://ideas.repec.org/p/ilo/ilowps/994999791602676.html reviewed article 14 may also constitute exploitative or illegal unpaid work34) have limited impact on graduates’ employment prospects. it can be presumed, therefore, that wil experiences with the best outcomes are those that are well structured and well supervised. this is consistent with the teqsa guidance regarding expectations of wil discussed above.35 developing and delivering high quality and effective wil courses is time intensive and requires developing in students a particular skill set. as mcnamara has noted in the legal education context: in addition to feedback from the workplace supervisor, students should also be provided with support from the academic supervisor to assist the development of professional competence. this might include preparation for the placement, identification of skills or competencies able to be developed during the placement and the ability to self-evaluate and learn from experience. in addition students need clear guidance as to what the learning expectations from the placement are and how to achieve them and the distinction between work and what is learned at work. students should also be supported in preparing for the commencement of their internship which may be their first experience of a professional workplace. young and blanco (2007–2008) suggest students are often unprepared for the workplace in that they do not know how to dress and 34 in 2018 it was estimated that at least 10% of unpaid work in australia might be illegal: andrew stewart et al, ‘the nature and prevalence of unlawful unpaid work experience in australia’ (2018) 31(2) australian journal of labour law 156, 171. 35 see n 24. reviewed article 15 communicate appropriately; and how to take instructions on assignments. this lack of preparedness can inhibit students from attaining the most from their placement experience and may even embarrass the university which has placed the student.36 a well-designed wil placement with adequate supervision often requires more than just effort on the part of a single academic or placement host working in isolation. delivering high quality wil requires a range of other institutional supports. for example, hewitt et al suggest that ensuring delivery of effective wil programs requires: • appropriate information technology and administrative systems to support wil; • adequate provision for, and recognition of, academic and professional staff workload in relation to wil; • professional development for university staff involved in wil; and • frameworks, procedures and processes to ensure regulatory compliance and risk management, in recognition of the fact there are unique regulatory requirements for wil and specific risks.37 36 judith mcnamara, ‘the challenge of assessing professional competence in work integrated learning’ (2013) 38(2) assessment & evaluation in higher education 183, 187-8 (internal references omitted). 37 for example, labour law issues such as compliance with the fair work act 2009 (cth) arise in the context of wil which are not relevant to non-wil courses. in addition, students undertaking a workbased placement are exposed to a variety of risks the university cannot control, for instance the risk of workplace injury, harassment or discrimination. the regulation of and risks inherent in wil are considered in hewitt et al, n 20, 41-3. reviewed article 16 many of these factors were also recognised in the queensland university of technology project on institutional quality assurance of wil.38 that project developed a framework that recognises that institutional resources are a critical domain of quality assurance with regards to wil. it is important to note that, in many discipline areas, these additional resourcing requirements do not arise or arise to a lesser extent, in the design and delivery of nonwil courses.39 while such courses inevitably involve labour costs associated with the teachers designing and delivering the course and general facility and administrative support costs, there is limited (if any) need for legal advice or drafting of placement contracts, or the education of, or guidance for, host supervisors needed, or the expense of off-site visits or inspections required for many non-wil courses. in addition, most traditional courses utilise fairly generic information technology tools, whereas wil courses may require placement management systems. in the context of law, wil often also gives rise to specific additional resourcing issues. these are canvassed in part 2. 38 matthew campbell, leoni russell, lindy mcallister, lorraine smith, ricky tunny, kate thomson and maria barrett, (2019) a framework to support assurance of institution-wide quality in work integrated learning. https://research.qut.edu.au/wilquality/wp-content/uploads/sites/261/2019/12/finalframework-dec-2019.pdf [accessed 2 february 2023]. 39 in some subject areas other costs, such as fieldwork, laboratory or material costs may be incurred. https://research.qut.edu.au/wilquality/wp-content/uploads/sites/261/2019/12/final-framework-dec-2019.pdf https://research.qut.edu.au/wilquality/wp-content/uploads/sites/261/2019/12/final-framework-dec-2019.pdf reviewed article 17 part 2: resourcing wil in law there are a number of wil typologies in law, two of which will be canvassed here: (1) ‘legal placement wil’; and (2) ‘clinical legal education’. each has discrete resourcing implications. legal placement wil legal placement wil replicates the wil experiences common in other disciplines: work-based placements within the industry in which students engage in supervised professional tasks. the resource requirements of such placements are significant. mcnamara details the various administrative burdens required to facilitate a law student undertaking a legal internship, including: • administrative processes to ensure the host supervisor’s qualifications are checked; • provision of detailed resources to host supervisors regarding the requirements of supervision, provision of feedback, and assessment; and • moderation of marks awarded by diverse host supervisors.40 in addition, academics involved in delivering legal placement wil are often required to locate positions for students, which requires the development and maintenance of 40 moderation of marks awarded by host supervisors may be more onerous that other moderation requirements because many are not experienced markers, and each may only be supervising/marking a very limited number of students, increasing the potential for marking differences. judith mcnamara, ‘internships: effective work integrated learning for law students’ (2009) 10(3) asia-pacific journal of cooperative education 229, 235-6. reviewed article 18 relationships with host firms and lawyers, and (in some instances) compliance with significant university administrative requirements.41 as joubert observes: the lecturer responsible for the wil-components … is burdened with a huge responsibility of taking care of the logistical challenges of this process and playing an active role with the various practicing attorneys and advocates throughout.42 in addition to these time-consuming administrative tasks, academic staff involved with legal placement wil also need to work with students prior to and during the placement to ensure they have the necessary academic, personal, professional and ethical skills expected by their hosts. for example, students need to be aware of critical issues relating to client confidentiality and conflicts of interest.43 clinical legal education the second significant wil typology prevalent in law is clinical legal education (cle). although cle takes a variety of forms and is not amenable to a single precise definition, giddings provides a general description of cle as academic activity: [i]n which each student takes responsibility for legal or law-related work for a client (whether real or simulated) in collaboration with a supervisor. structures enable each student to receive feedback on their contributions and to take the 41 the extent to which placements are vetted by universities, and the paperwork required for placements, varies hugely: hewitt et al (2021) n 20. 42 deidre joubert, ‘innovative work integrated learning for law students in south africa’ (2011) 4(21) international journal of arts & sciences 231, 234. 43 law council of australia (2015) australian solicitor’s conduct rules rr 9 and 12. reviewed article 19 opportunity to learn from their experiences through reflecting on matters including their interactions with the client, their colleagues and their supervisor as well as the ethical dimensions of the issues raised and the impact of the law and legal processes.44 as with legal placement wil, there is a growing awareness of the resource implications of developing and maintaining high quality cle. for example, in 2008 giddings stated ‘[t]he key challenge to greater use of clinical teaching remains its resource intensive nature’.45 mcnamara identifies some of the specific resources required for cle programs, including: ‘intensive academic supervision, partnerships with community legal organizations and government funding’.46 supervision of students undertaking real legal work in a cle context, often on behalf of underprivileged members of the community, can also require a significant element of pastoral care, more perhaps, than in other legal education contexts. as evans et al state, this ‘demands major emotional and energy commitments from clinical supervisors year after year’.47 in addition, cle requires investment in specialised technology, such as case management software.48 44 jeff giddings, promoting justice through clinical legal education (justice press, 2013), 14. 45 jeff giddings, ‘contemplating the future of clinical legal education (2008) 17(1) griffith law review 1, 2. 46 judith mcnamara, ‘internships: effective work integrated learning for law students, (2009) 10(3) asiapacific journal of cooperative education 229, 230. 47 adrian evans, anna cody, anna copeland, jeff giddings, peter joy, mary anne noone and simon rice, ‘australian clinical legal education: designing and operating a best practice clinical program in an australian law school’ in adrian evans et al, australian clinical legal education: designing and operating a best practice clinical program in an australian law school (anu press, 2017) ch 9, 213. 48 martin j katz, ‘understanding the costs of experiential legal education’ (2015) 1 journal of experiential learning 28. reviewed article 20 conclusion as this brief overview demonstrates, the resource demands of legal placement wil and cle (collectively, legal wil) are broadly understood to be significant. this, of course, would not be an issue if australian universities were consistently able to meet those demands. however, a review of the literature regarding the resource implications of legal wil suggests that this is not always the case. instead, a number of common concerns regarding resourcing emerge. first, is the issue of appropriate workload allocation and recognition, and the second is the challenges posed by specific information technology requirements. workload allocation and recognition there is a long history of clinical supervision being regarded as a distraction from research and scholarship, and not in itself worthy of commendation. for example, it is reported that in 1984 the director of research in the monash law faculty, professor richard fox, wrote to the dean stating: [a]cademic staff who devote their time whole-heartedly to the clinical programme may later find themselves at a disadvantage in securing promotion because of their reduced productivity during their time in the programme. their contribution to the teaching, community service and administrative sides of the reviewed article 21 legal service are not seen by those who place prime value on research as compensating for an apparent weakness in the publication record… 49 this was also recognised by shirley et al, who state: the potential drawbacks [of work-integrated learning opportunities] include: … the lack of career development opportunities for the academic staff members involved in such programs as distinct from research based opportunities.50 in some instances, the resource implications have been perceived as leading to a conflict between in-house clinics and cheaper external placements. [t]he cost concern often pits in-house clinical courses against externships because the externship structure usually allows higher student-to-faculty ratios, and therefore, lower costs per student. the cost advantage of externship programs has consistently led commentators to predict that law schools will shift resources into externships as the primary form of clinical education.51 49 jeff giddings, ‘clinical legal education in australia: a historical perspective’ (2003) 3 international clinical legal education 7, 24. 50 melinda shirley, iyla davies, tina cockburn and tracey carver, ‘the challenge of providing workintegrated learning for law students – the qut experience’ (2006) 10 international journal of clinical legal education 134, 137. 51 peter a joy, ‘the cost of clinical legal education’ (2012) 32 boston college journal of law & social justice 309, 328. reviewed article 22 information technology requirements there is also significant consideration in the literature of the technology required to support wil, especially cle.52 the resource implication of technology is recognised as being twofold: involving both investment and training. furthermore, students cannot be expected to receive any educational benefit from using case management software when they are unable to be adequately trained, due to supervisors’ lack of commitment to the software or understanding of it.53 part 3: australian data regarding resourcing wil during 2017 and 2018, as a part of an arc discovery project (2017/18 study),54 a series of 68 semi-structured interviews were conducted with australian university staff working in wil in a variety of roles.55 the interviews were conducted at 15 diverse australian universities located in five australian states,56 including universities with multi-state campuses, those located in the outer suburbs of a city, rural/regional universities and providers of distance education.57 the four participant cohorts were 52 see, eg, ross hyams, ‘clinical legal education management and assessment software (2004) 6 international journal of clinical legal education 177. 53 ibid, 191 54 australian research council’s discovery project grant dp150104516. 55 the university of adelaide human research ethics committee, ethics approval h-2016-254. 56 new south wales, queensland, south australia, victoria and western australia. excluded were tasmania and all australian territories. our rationale for the exclusions was time, cost and particularity (accounts in excluded regions would be sui generis). 57 these categories overlapped in some institutions; for example, a university could be both regional and have campuses in outer suburbs of cities in that region. reviewed article 23 university staff working in: a) policy, legal and risk; b) education; c) careers and volunteering; and d) international service. the interviews shed light on a number of the wil resourcing issues discussed above. the interviews were cross disciplinary and were useful in confirming the continued relevance of many of the issues, including resourcing issues, identified in the wil literature. some of the relevant content from the interviews is summarised here, both to provide context and because it inspired the law specific study described below. as discussed, the literature suggests that clinical supervision in the context of law is undervalued in terms of workload and promotion. the evidence from the interviews conducted in the 2017/18 study suggests that across australia there is a consistent perception that the development and supervision of work experience placements is under-recognised. there are two components to this, the first being that in many universities insufficient workload recognition is awarded compared to the time commitment required to develop and supervise wil properly, with the result that supervisors are poorly resourced or overwhelmed by their supervision responsibilities. one interview participant summarised the problem as follows: it’s massive, it’s massive and i don’t think – well everyone has this rhetoric around work-integrated learning and work placements and industry partnerships – actually, we don’t take it seriously enough because we don’t, noone gets workload though. 58 58 interviewee a. reviewed article 24 the second component is that engaging with wil is undervalued in terms of academic advancement: [t]here's usually just a subject coordinator who runs the show and that is very isolating and non-recognised female activity. so the labour force issues are ginormous because people aren't committed to this area because it's career suicide… 59 while it seems that some institutions are increasing funding and support to address this problem: ‘[w]e are better resourced in the employability space than we used to be’, this is not a common theme. instead, while institutional enthusiasm for work experience is growing almost uniformly, resourcing is not. in this context, many interviewees indicated that cumbersome administrative requirements associated with wil are often overlooked: ‘[b]asically the staff feel they're overworked, and this is just another thing they have to worry about’.60 some universities are seeking to address the workload implications of wil by developing systems and processes to streamline the workload. however, where they exist, these systems and processes are focussed on risk management and accountability, rather than on academic content or the time required to manage and supervise effectively. in addition, there is some explicit recognition that the workload falling on academic and 59 interviewee b. 60 interviewee c. reviewed article 25 professional staff is not adequately recognised in workload allocation systems, and staff are not properly trained or supported: a part of the problem, if i can add that in now, is that negotiating partnerships with our host organisations, which are fundamental to quality work experiences or work placements for our students, is a real problem for us for a number of reasons – staff are not resourced to do that; there is no workload allocated to it; staff don’t know how to do it; staff feel intimidated. i have done a lot of research on that actually, so i know that that is absolutely a fact. 61 the interviewees in the 2017/18 project also touched on the importance of investing in data management systems for wil. in some instances, interviewees recognised that the cost of such infrastructure is a barrier to investment or a cause of delay. i sponsored a project which hasn’t really again got off the ground yet but it has been, you know, it has been approved, looking at an enterprise solution for the recording and tracking of placements. so we don’t have such a thing at the moment. 62 the university has also recently, this year, invested in a system that will create some common templates across reporting and how programs are managed ... so it’s been quite a large investment63 61 interviewee d. 62 interviewee e. 63 interviewee f. reviewed article 26 based on this data, we considered the resourcing of wil in the context of legal education. part 4: law specific data regarding resourcing wil in 2021 and 2022 we undertook an empirical australia-wide study to understand better the resourcing constraints and other challenges facing australian law schools offering legal wil and how they manage, recognise and reward the workload associated with wil in law (2021/22 law study). method the 2021/22 law study involved a survey of the associate deans, learning and teaching (or equivalent) in australian law schools. the invitation to undertake the survey was distributed to participants via email, through the council of australian law deans, and through the law education associate deans network. survey participants had the option of completing the survey online on the qualtrics survey platform or via a telephone interview with one of the project team members. participants representatives from twenty-six law schools completed the survey. twenty-three completed the survey online and three via telephone interview. one representative indicated they did not complete the survey as their law school does not offer a wil course. as there are 39 law schools in australia, this represents a response rate of over 68%. reviewed article 27 survey using a self-designed survey in qualtrics the survey questions canvassed the following six broad areas relating to legal wil: • whether the law school offers wil courses and, if so, how many; • number of students participating in the wil courses; • number of staff involved in delivering wil courses and their roles; • recognition in workload and promotions for academic staff involved in delivering wil; • data management systems in place for administering wil; and • staff training, regulation, and compliance. the survey comprised 20 questions and took approximately 15 minutes to complete.64 eight of the survey questions were open-ended and the remaining twelve gave participants a range of answer options from a drop-down menu. the responses to the eight open-ended questions provided much of the qualitative data used in this article. procedure and method of analysis the online survey was voluntary and anonymous, and participants could withdraw at any time. it contained no unique personal or institutional identifiers. the participants who elected to complete the survey via telephone interview were not 64 the survey is attached as an appendix. reviewed article 28 anonymous, but all unique identifiers were removed from their responses when it was entered into the survey. after the time window for completing the survey closed, the data was collated and analysed using qualtrics to compile and present the demographic and descriptive data and nvivo qualitative analysis software to thematically codify and analyse the open-ended question responses. limitations the data collected in the 2021/22 law study was limited by the knowledge of the survey participants. to ensure accuracy of information collected, we distributed copies of the survey topics with the invitation to complete the survey, so the associate dean, learning and teaching (or equivalent) for each law school could inform themselves of any information required which they may not have otherwise had easily to hand when completing the survey. however, we did not evaluate whether participants availed themselves of this opportunity. as the 2021/22 law study progressed it become apparent that nomenclature was not consistent across institutions. this was particularly true with regard to the designation of staff roles (permanent, full time, sessional, academic, professional etc.) and types of wil. it is possible different interpretations by participants of the terms used in the survey may have affected results. finally, in the three surveys completed during or after a telephone interview, it was possible for the researcher to interrogate responses and seek further information. this reviewed article 29 may have elicited more or different details than if the participant had completed the survey online independently. cumulatively, these factors may constitute minor limitations on the integrity of the data collected. results wil offerings and student participation the majority of participants reported that their law school offers between one and five wil courses. six reported having between six and ten and two have up to 15. no australian law school that participated in the study offers more than 15 wil courses. included in these wil numbers were cle programs, internship courses, and industry projects. cle programs ranged in offering from one to ten per law school and internship courses between one and six. in addition, 15 participating law schools reported providing students with the opportunity to participate in industry projects. as reflected in figure 1, the number of students participating in wil courses range from one to 25 to over 200. most of these students participate in internships in which they attend at a real workplace. figure 1: number of students participating in wil courses each academic year reviewed article 30 staff involved in wil in contrast to the 2017/18 study, participants in the 2021/22 law study reported that, generally, the wil courses in their law schools are well-staffed, with a few exceptions. participants were asked how many staff are involved in wil course coordination, organising placements, marking assessments, supervising students, and data entry and management. one participant reported having only one academic staff member being responsible for the course coordination, teaching, and administration of wil. another had two and another three academic staff undertaking this work. at the other end of the workload spectrum, three law schools reported having over 20 academic staff involved in course coordination, organising placements, assessment, supervision, and data management relating to wil. in all cases, at least some tenured/tenurable academics were involved in the wil courses. however, 60% of respondents indicated additional reliance on sessional teachers. reviewed article 31 all law schools reported having some professional staff support for their wil courses. however, this support varies markedly across law schools, with most receiving minimal support. although one participant indicated receiving support from seven professional staff, including five staff members supporting all aspects of wil, nine (or over 42%) received support from one member of professional staff. for five of these the support is limited to data entry or data management relating to wil courses. another six law schools (or over 28%) are supported by two or three professional staff. almost 60% of professional staff support and 95% of academic staff support for wil is provided from within law schools, with 22% of professional support provided centrally and 18% professional support and 5% academic support provided by a mix of central and school staff. participants were asked to identify any other tasks related to wil courses that were not included in the list of tasks identified above (organising placements, marking assessments, supervising students, and data entry and management). several respondents identified more nuanced roles or specific role titles. for example, relating to the general task of 'organising placements', one participant commented: there is [a] significant amount of relationship management and stakeholder engagement undertaken by academic staff setting up projects, placements etc which is not captured above. this is largely undertaken by academic staff. and in relation to the general task of 'data entry/management', another participant noted: reviewed article 32 for [the] xxx program, [a] professional staff member assists in... maintaining and administering files between semesters. other wil roles not captured in the list provided were: 1) an overarching “wil director” role to develop wil throughout the law program and to implement the university's wil strategic priorities; and 2) facilitating student enrolment in wil courses. academic recognition for work associated with wil workload allocation sixty-two per cent of participants reported that the allocation of academic workload for wil courses was the same as for other traditional law courses: the unit convenor gets same workload as for any other course. for industry project courses, this is given an identical workload allocation to any other course. clinics and internship subjects considered the same as electives. coordination of any course regardless of enrolments or type is given identical academic workload credit. relatedly, some participants stated that academic staff were allocated to wil-units based on teaching load capacity in the course of normal workload allocation: reviewed article 33 teaching of each unit has a prescribed allocation that is considered as part of the academic staff workload. staff are allocated to various wil units according to teaching load capacity. clinical teaching is calculated as part of the workload allocation according to the policy. for most of the clinical supervisors the clinical subject forms only part of their regular teaching workload. however, several participants noted the difference between delivering wil and more traditional law courses. for example, one participant commented: in a more traditionally oriented faculty there is sometimes limited awareness of just how much time goes into organising and maintaining partner relationships, supervising students. the relatively individualised nature of the programs, at least compared to traditional courses is not always wellunderstood. this comment suggests that, in some contexts, allocating wil workload on the same basis as for other courses may not, in fact, be equitable. consistently with this, of the 38% of participants who reported that the workload allocation for wil courses differed from that for other traditional courses, the difference related for the most part to additional workload recognition being given for the high-level coordination, supervision, arranging placements, and ‘significant relationship management and [external] stakeholder engagement’. as one participant noted: reviewed article 34 given that much of the workload is administrative it does not translate to coordination and teaching function. however the cle clinics are legal practices so require senior solicitor management, risk management, staff management and support, liaison with stakeholders such as the law society, insurers, partner organisations, quality assurance, practice oversight and support, training, process management and reporting as per legal practice management. other than allowing admin functions to be dedicated to the clinics, there is no separate recognition of the role as practice manager. it is a significant outward looking role and requires annual accreditation, professional development of myself and supervisors, and meeting professional reporting obligations. the wil workload recognition seeks to take into account all the time spent on arranging placements. several participants indicated, however, that this additional workload for wilspecific duties was recognised in their workload allocations: normal co-ordination hours and seminar delivery hours and extra hours for supervision. co-ordination is the same but extra hours allocated for supervision. standard workload for lectures and tutorial hours, additional 20 hour for convening to account for organising placements. the high level course coordination role is regarded the same, but the workload for supervising the projects is calculated differently. reviewed article 35 greater recognition is given to the engagement and relationship management requirements of a clinical/wil course. an addition 50 workload points is allocated for coordination of wil units as they are categorised as 'high student contact units'. we work on the basis of 1000 annual workload points for a full-time academic in an academic year. the wil workload recognition seeks to take into account all the time spent on arranging placements. in contrast to the results from the 2017/18 study, generally, participants considered the workload allocation for wil courses to be appropriate: the current recognition seems to strike a good balance. … the work is very different involving a more sustained relationship with fewer students and is more flexible. there is a lot less work involved than in a non internship course and so the recognition has seemed adequate. there is no specific credit for administrative workload, however it is assigned as an administrative task in the law school. credit for the teaching component is the same as in other courses. the current workload seems fair and reasonable in my view. fewer hours workload credit given despite need for individual guidance and supervision of students throughout course is adequate but not generous. if i had to facilitate placements, run orientations, check on student reviewed article 36 welfare etc then it would be vastly inadequate. because those things are done externally it is ok. the workload recognition is commensurate with the role of crafting and running an industry project course or a speciality wil experience course (ie overseas wil engagement). academic promotion while the vast majority of participants (over 84%) reported that academic staff receive recognition in the academic promotion process for their work in designing, implementing and running wil courses, only 53% considered that this recognition was proportionate to the importance of the work and the time and expertise it requires. it is concerning that 16% of participants reported not receiving any such recognition and 47% considered that, where such recognition is given, it is not adequate. some commented on the reasons for this: the workload recognition is commensurate with the role of crafting and running an industry project course or a specialty wil experience course (i.e., overseas wil engagement). it can be included in a promotion application as evidence of pursuing the university goal of a wil experience for every student, but there is no clear indication of its impact. the university has a strong focus on stakeholder engagement, and for that reason does give promotion credit to the relationships developed through creating, reviewed article 37 supervising wil project opportunities for students. this has improved as the institutional focus on engagement and wil has been embedded. however, there is still a mismatch between the recognition it receives, the real work commitment, and the work required to be invested by staff. one theme to emerge from the open-ended responses was the undervaluing of work associated with wil in academic promotions, compared to research and traditional teaching: it should be more integrated with academic work, uni's see the cost as per student but the enrolments are typically low but the workload is just as high regardless of enrolments; it is very difficult to find time for research because the work continues beyond the teaching semesters and the cases have to continue to be managed (clinical staff)but still assessed for promotion against traditional academic measures, including research output, so it is difficult to keep up research performance. research academics get most recognition. the view of central administration is that wil does not contribute to student learning, era, or community engagement. wil data management and information technology systems reviewed article 38 participant responses to the question ‘what data management system/s does your school use relating to wil? (i.e. what system/s record/s where placements are located, duration of placements, where do you store associated paperwork, etc.)’ revealed a range of practices, most of which are inadequate. five law schools use “inplace” which one participant described as a ‘terrible system’, three use sonia and two careerhub. a further three participants reported using a centralised system, the details of which were not provided. remarkably, seven participants indicated they maintain their own records on their own device or in a shared drive using excel, word, email, and a learning management system. regardless of the system used, in 90% of instances, all those involved in delivering wil either in the law school or centrally have access to the wil data on the system. staff training, regulation, and compliance. the final suite of survey questions related to staff training, regulation, and compliance. although 80% of participants reported that the course approval process for wil courses in their institution explicitly or implicitly ensures compliance with external regulatory requirements for wil, more than 85% of participants indicated that they receive no training in relation to the external regulation of, and compliance requirements for, wil courses. only three participants indicated they did receive relevant training. part 5: discussion reviewed article 39 while there are many potential benefits associated with wil for law students, there are also a variety of risks for participants, hosts, and law schools.65 risk management demands we adequately resource wil, to maximise the learning outcomes and safety of participants, and minimise the legal and reputational risks for other stakeholders. as the pressure on the tertiary sector to produce ‘work ready graduates’66 increases, risk management through adequate resourcing is likely to become even more important. this is particularly true for wil in law, as the awareness of the risks of engagement in legal workplaces (especially for the young and vulnerable) increases.67 for proof of the potential risks to junior participants in australian legal workplaces we need only consider the june 2020 revelations that while he was a member of the high court, the hon dyson heydon ac qc harassed six judge’s associates.68 65 see, for example, craig cameron, ‘the student as inadvertent employee in work-integrated learning: a risk assessment by university lawyers’ (2018) 19(4) international journal of work-integrated learning 337; anne hewitt, rosemary owens and andrew stewart, ‘mind the gap: is the regulation of workintegrated learning in higher education working?’ (2018) 44(1) monash university law review 234. 66 in the ministerial foreword to the 2019 career-ready graduates report by universities australia, then minister for education dan tehan stated ‘work integrated learning at australian universities is a winwin for students and employers. … it is essential that students are exposed to how contemporary workplaces operate so they can hit the ground running from day one of the job’. 67 anne hewitt and laura grenfell, ‘a call for regulatory reform to make work experience accessible rather than an obstacle’ (2022) 47(4) alternative law journal 301. 68 on 22 june 2020 the chief justice of the australian high court, the jurisdiction’s ultimate court of appeal, released a public statement that multiple former associates had made accusations of sexual harassment against former high court justice, dyson heydon. an independent investigation found heydon sexually harassed six junior court staff during his time on the high court. the findings illustrate the vast power imbalances which can operate in a legal context, and the vulnerability of junior lawyers to inappropriate behaviour. susan kiefel, ‘statement by the hon susan kiefel ac, chief justice of the high court of australia', 22 june 2020 https://cdn.hcourt.gov.au/assets/news/statement%20by%20chief%20justice%20susan%20kiefel%20a c.pdf [accessed 9 february 2023]. https://cdn.hcourt.gov.au/assets/news/statement%20by%20chief%20justice%20susan%20kiefel%20ac.pdf https://cdn.hcourt.gov.au/assets/news/statement%20by%20chief%20justice%20susan%20kiefel%20ac.pdf reviewed article 40 the 2017/2018 study suggested that, overall, wil was not adequately resourced in australia’s 39 self-accrediting universities.69 of particular concern was the limited recognition of the workload involved in creating and delivering high quality wil experiences for students. however, the discipline specific 2021/2022 law study presents a slightly different picture. positively, the data emerging from participant law schools suggests that while the methodologies for calculating workload associated with ”teaching” legal wil vary, they generally offer far greater workload recognition than was reported in the earlier study. the reasons for this change are not clear. it may be that the sector’s approach to wil workload has changed between the two phases of data collection. alternatively, instead of being reflective of a broader change, it may be that this phenomenon is specific to the discipline of law. the current analysis does not shed light on this, but it would be a fruitful area for future research. while the workload allocation for legal wil supervision and teaching was considered relatively good, there were issues reported regarding the adequacy of workload recognition of some of the unique work associated with wil. these included the creation and management of relationships with external stakeholders, including wil hosts, provision of stakeholder training, and managing workplace and legal issues, 69 registered higher education providers can either be authorised as self-accrediting or have each of the courses of study the institution offers accredited by teqsa. at the time of the 2017/2018 study all 39 universities in australia were self-accrediting. there are currently 41 self-accrediting universities plus the university of divinity which is recognised as partially self-accrediting: https://www.teqsa.gov.au/national-register [accessed 9 february 2023]. https://www.teqsa.gov.au/national-register reviewed article 41 such as creating placement contracts and ensuring insurance coverage for wil participants. while the 2021/2022 law study revealed more appropriate workload recognition for wil than we anticipated based on the results of the 2017/18 study, it also disclosed ongoing issues regarding recognition of engagement with wil in academic promotions. the data strongly suggested that contribution to legal wil does not receive recognition in academic promotion processes proportionate to either the work involved, nor its value to students, the community, the legal profession, and the reputation of schools and universities.70 there is a real risk that failing to recognise contributions to wil programs in academic promotions will make it more challenging to attract and retain academics into these roles. this has the potential to undermine the synergies between research, supervision and professional engagement which are facilitated by having academic faculty engaged with wil programs and cle clinics. it this context, it should also be noted that the 2021/2022 law study suggests that a considerable amount of legal wil work is being performed by individuals employed in non-teaching capacities. for example, solicitors hired to supervise legal clinics, or professional staff managing placements. whether outsourcing legal wil from academics in this way is positive or 70 the educating lawyers report, published in 2007 by the carnegie foundation for the advancement of teaching, emphasised the importance of clinical experiences to effective legal education: william sullivan, anne colby, judith wegner, lloyd bond and lee shulman (2007) educating lawyers: preparation for the profession of law, jossey-bass. chs 2 and 3. reviewed article 42 negative remains to be explored. it is, however, consistent with the general trend of reducing academic faculties and increasingly relying on contract and casual staff, which raises a variety of issues for the tertiary education sector.71 two other areas of resource concern identified in the 2021/2022 law study were infrastructure support, and training. managing legal wil courses (whether cle or placement based) requires use of an appropriate data management system with shared access. it was concerning that the law study revealed some wil programs were being administered using an excel spreadsheet on one academic’s computer. the risks associated with this, in terms of ensuring information about placements and placement related issues are accessible to all those who need it, are clear. a final, significant resourcing issue is the lack of training for wil staff (whether sessional, contract, tenured academic or others) on applicable regulation and compliance. this is a clear risk management imperative. the 2021/2022 law study suggests this is not well accommodated even in law, where it appears wil may be better resourced than in other disciplines. the reasons for this are unclear. it may be that those associated with legal wil are not offered relevant training based on a 71 see, for example, hamish coates, ian richard dobson, l goedegebuure and lynn meek, 'australia's casual approach to its academic teaching workforce' (2009) 17(4) people and place 47; anne junor ‘casual university work: choice, risk, inequity and the case for regulation’ (2004) 1 (2) the economic and labour relations review 276; suzanne ryan, john burgess, julia connell and egbert groen, ‘casual academic staff in an australian university: marginalised and excluded’ (2013) 19(2) tertiary education and management 161; jill cowley, ‘confronting the reality of casualisation in australia: valuing sessional staff in law schools’ (2010) 10(1) queensland university of technology law and justice journal 27; john ross, ‘attempts to tackle casualisation in australia “have failed”’ 15 february 2022 https://www.timeshighereducation.com/news/attempts-tackle-casualisation-australia-have-failed [accessed 9 february 2023]; archie thomas, hannah forsyth and andrew bonnell ‘the dice are loaded’: history, solidarity and precarity in australian universities’ (2020) 17(1) history australia 21. https://www.timeshighereducation.com/news/attempts-tackle-casualisation-australia-have-failed reviewed article 43 presumption that they are already aware of the regulatory issues and able to manage compliance. however, given the plethora of specialist issues that may arise, including compliance with teqsa and education services for overseas students legislation, australian qualifications framework requirements, issues of confidentiality, intellectual property and workplace laws, such a presumption is likely to be unfounded. part 6: conclusion and recommendations in conclusion, our assessment of the resourcing of wil in australia’s law schools is mixed. it seems there are some positive aspects to the way in which workload for wil programs is allocated and recognised, however there remain some concerns about the level of recognition of the external engagement and unique administration required. we also query whether reliance on non-tenured academic staff is an appropriate resourcing choice, given its potential to affect wil quality, risk management, or regulatory compliance. in this context, we note that the general lack of commensurate recognition of wil in academic promotions is an obstacle to encouraging tenured academics to commit to wil programs. however, regardless of who is designing and delivering legal wil, it is imperative those individuals receive appropriate training on applicable regulation to ensure compliance. the analysis above informs our development of specific recommendations for australian law schools on the resourcing of legal wil. we have framed the reviewed article 44 recommendations at a high level so that they can be tailored to each law school’s courses, staff and student cohort, and administrative context. nonetheless, we suggest they constitute an important threshold commitment to appropriate resourcing to ensure the sustainability, quality and success of legal wil programs, and facilitate regulatory compliance and risk minimisation. recommendation 1: provision of training individuals involved in designing, delivering, administering and assessing wil courses should receive training in relevant internal (university policy) and external (state and federal legislation) regulation. recommendation 2: university policies and processes university policies and processes applicable to wil (including those regarding development and approval of wil courses, assessments, supervision, intellectual property and data management) should be tailored to ensure regulatory compliance and excellent learning outcomes in wil courses. recommendation 3: appropriate data management systems law schools should adopt and utilise an appropriate data management system for wil courses. reviewed article 45 recommendation 4: workload recognition law schools should ensure the time and effort associated with wil is appropriately recognised in workload models and teaching allocations. workload allocations for wil need to acknowledge not just supervision time but also other activities associated with wil including: • building and maintaining relationships with external partners; • administration (including facilitating placements and putting placement contracts in place); • delivery of preparatory training for students relating to ethical and professional conduct; and • upskilling in the use of technology and specialist data management software. recommendation 5: recognition in academic promotion involvement in the development and delivery of wil courses should be valued and given due recognition in the assessment of promotion applications commensurate with the specialist and skilled nature of the work, and its value to students, the community and law schools. reviewed article 46 appendix 2020/2021 law study survey instrument thank you for participating in this survey about work integrated learning in your law school. we are interested in those courses/units in which students attend a real workplace or do real work remotely and for which they receive academic credit. this could be described as a clinical placement, an internship, an industry project etc. we are not interested in simulated work, or work experience done without academic credit. in reporting the results of the survey, all results will be presented in aggregated form, and no individual or individual law school will be identified with any specific data. 1. approximately many wil courses are offered in your law school? a. 1-5 b. 5-10 c. 10-15 d. 15-20 e. 20+ 2. please provide some additional information about the wil courses offered in your law school. drop down menu reviewed article 47 number of clinical legal education courses 1 2 3 4 5 6 7 8 9 10 10+ number of internship courses (where students attend a real workplace) 1 2 3 4 5 6 7 8 9 10 10+ number of remote internship courses (where students work remotely from the workplace but do real legal work) 1 2 3 4 5 6 7 8 9 10 10+ number of industry projects 1 2 3 reviewed article 48 4 5 6 7 8 9 10 10+ 3. approximately how many students participate in the various wil courses in each academic year? if a student participates in two courses, please count them twice. drop down number of students completing clinical legal education 1-19 20-39 40-59 60-79 80-99 100-119 120-139 140-159 160-179 180-200 200+ number of students completing internships (where students attend a real workplace) 1-19 20-39 40-59 60-79 80-99 100-119 120-139 140-159 160-179 180-200 reviewed article 49 200+ number of students completing remote internship courses (where students work remotely from the workplace but do real legal work) 1-19 20-39 40-59 60-79 80-99 100-119 120-139 140-159 160-179 180-200 200+ number of students undertaking industry projects 1-19 20-39 40-59 60-79 80-99 100-119 120-139 140-159 160-179 180-200 200+ 4. how many staff are involved in delivering those courses, and are they professional or academic staff? if one staff member completes all these roles, please use the “general wil course coordination/teaching/admin” category. however, if roles are divided between individual staff, please use the category which best fits the role undertaken by each staff member. reviewed article 50 role number of academic staff number of professional staff general wil course coordination/teaching/admin course coordination organising placements marking wil assessments supervising students data entry/management re wil 5. if staff members undertake additional roles re wil courses that are not included above, could you briefly describe their role and whether they are academic or professional below. free text 6. are the professional staff members involved in delivering wil courses located within law school or central or a mixture? a. law school b. central/faculty c. mixture 7. are the academic staff members involved in delivering wil courses located within law school or central or a mixture? a. law school b. central/faculty reviewed article 51 c. mixture 8. are they tenured/able academics or sessional staff? free text 9. what workload recognition do academic staff get for that work? if possible, please explain the workload credit in hours/student or hours/course and what percentage of academic staff member’s overall workload this represents. free text 10. if there is a workload document or policy that explains how the workload is determined, could you please provide us with a copy or extract a copy of the relevant part below: free text 11. how does that workload recognition compare to the workload recognition for designing, coordinating and teaching in “traditional” law courses? a. the same per course or per student b. different per course or per student 12. if you indicated the workload credit is different from traditional courses, please explain how. free text 13. do academic staff receive recognition for work designing, implementing and running wil courses in academic promotion applications? reviewed article 52 a. yes b. no 14. do you think the academic workload and promotion recognition given is proportionate to the importance of the work and the time and expertise it requires, or not? a. yes b. no 15. if you indicated the academic workload and promotion recognition for wil is not proportionate to the importance of the work and the time and expertise it requires, please explain why you hold that view. free text 16. what data management system/s does your school use relating to wil? (i.e. what system/s record where placements are located, duration of placements, stores placement associated paperwork, etc.) free text 17. who has access to data on that system? a. all staff involved in wil in all areas of the university b. all staff involved in wil in the law school c. only the individual/s who entered the data d. a small pool of people with access to a shared file reviewed article 53 18. do staff involved in wil courses get any specific training re external regulation i.e., the fair work act, teqsa guidelines etc? a. yes b. no 19. if yes, could you please provide details. free text 20. do course approval processes for wil courses explicitly or implicitly ensure compliance with external regulation i.e., the fair work act, teqsa guidelines etc? a. explicit b. implicit c. not ensured there is evidence suggesting there are good reasons for this stakeholder support. data from the national graduate outcomes survey9f (gos) suggests undertaking wil improves graduates’ employability and employment outcomes. thirty-one universities opte... reviewed article: teaching and learning in clinic ‘first they tell us to ignore our emotions, then they tell us to reflect’: the development of a reflective writing pedagogy in clinical legal education through an analysis of student perceptions of reflective writing. rachel spencer* university of south australia rachel.spencer@unisa.edu.au abstract the use of reflective writing has long been recognised as an important component of clinical legal education pedagogy, not least because it provides an important link between the twin pillars of cle. however, current literature about reflective writing exposes a gap about student perceptions of reflective writing. this article provides an analysis of the results of formal research that was conducted into student perceptions of reflective writing in the clinical legal education context. the research was designed to investigate whether students perceived any benefit from reflective writing and what difficulties they actually encountered in writing in a way that is particularly different to other forms of academic assessment. this article focusses on student perceptions of the benefits of reflective writing. a further aim of the research was to develop an improved pedagogy of reflective writing in the clinical legal education context. the article concludes that students perceive mailto:rachel.spencer@unisa.edu.au limited benefits from reflective writing and offers several suggestions and recommendations as to how this limited perception might be enhanced. key words: pedagogy; reflective writing pedagogy; clinical legal education; reflection; teaching and learning framework part i: introduction and background the twin pillars of clinical legal education are the pedagogical benefits of students being able to provide legal advice to ‘real’ clients, and the social justice component of providing legal services to those in society who might otherwise be denied access to justice through a lack of legal advice.1 the use of reflective writing has long been recognised as an important component of clinical legal education pedagogy, not least because it provides an important link between the two pillars. this article provides a sequel to my previous research about teaching students to be reflective.2 readers are referred to that earlier article for a comprehensive literature review of the pedagogy of reflective learning and reflective writing3 which will not * rachel spencer is the director of professional and clinical programs in the school of law at the university of south australia. i would like to acknowledge and thank the two anonymous reviewers of this article whose suggestions for refinement were extremely helpful. 1 see for example, curran, l, dickson, j and noone m a, ‘pushing the boundaries or preserving the status quo: designing clinical programs to teach law students a deep understanding of ethical practice’ (2005) 8 international journal of clinical legal education 104; and ojienda t.o. and oduor m. (2002) ‘reflections on the implementation of clinical legal education in moi university, kenya’, 2 international journal of clinical legal education 19, 51. see also bloch frank s (ed) (2010) the global clinical movement: educating lawyers for social justice, oxford university press. 2 spencer, r. (2012) ‘holding up the mirror: a theoretical and practical analysis of the role of reflection in clinical legal education’, 18 international journal of clinical legal education 179-214. 3 spencer, above. be repeated here but can be summarised by kennison’s observation that ‘[s]uccessful use of reflection as an effective pedagogy for clinical teaching is dependent on a supportive teacher who knows how to facilitate the process.’4 the purpose of this article is to consider and respond to the questions that were raised by my earlier research. in particular, the research about the pedagogy of teaching reflective writing exposed a gap about student perceptions of reflective writing. do law students like reflective writing? do they find it difficult? is it helpful? an examination of the vast scholarship about reflection and reflective writing has been informative and instructive in relation to the development of teaching philosophy and pedagogy5 and it has generated new developments in my own teaching practices. however, having analysed why reflection is a positive influence on student learning and professional development, especially in the clinical legal education context, and having considered the opinions of a number of authors, teachers and clinicians6, it was clear that to date there has been a gap in the literature concerning student perceptions of reflective writing. it appears that scholars have not surveyed students about their views on reflective writing. one of the attributes of reflective writing is the ‘licence to write in the first person’ and, as i did in my earlier article, i have deliberately adopted this technique in this article. 4 kennison, m (2012) ‘developing reflective writing as effective pedagogy’, 33 (5) nursing education perspectives, 306. 5 see spencer, above n2. 6 spencer, above, n2. students in my clinical legal education course are required to reflect not only on their placement experiences but also to link their experiences to articles about specific issues. students are encouraged to write often, and to re-write their journal entries as the term progresses so that they can add layers of insight to their thoughts. this aspect of the reflective learning pedagogy encompasses the pedagogy of the new rhetoric, a less formal approach to writing.7 sometimes the student focuses on her role as a reader, at other times, the focus is on the student as writer. the students are encouraged to engage in dialogic reflection by engaging in a dialogue with their various selves (as readers and writers) and also with the audience (the teacher / assessor).8 the goal of the reflective writing process is ‘to encourage students to view their early readings and writings as tentative drafts that are open to change; to build in pauses when the student-as-reader or the student-as-writer can reflect on current meaning, goals, and plans; and to give students contextually based rhetorical choices to move forward.’9 while it is recognised that ‘the clinical approach gives students a chance to experiment with the theoretical knowledge they have as they can discuss what they are learning and experiencing with other students, advocates or members of the 7 the new rhetoric is further discussed in the sequel to this article, spencer r. (2014) ‘private lives: confronting the inherent difficulties of reflective writing in clinical legal education’, 21(2) international journal of clinical legal education. see also kowalski, t. ‘toward a pedagogy for teaching legal writing in law school clinics,’ (2010-2011) 17 clinical law review, 285, 311. 8 see berger, linda, (1999) ‘applying new rhetoric to legal discourse: the ebb and flow of reader and writer, text and context’ in 49 journal of legal education 155, 169. 9 berger, above, 169. bench,’10 reflection also gives students the opportunity to question their own actions, motives and responses. the skill of reflection extends clinical legal education into far more than ‘learning law by doing law’.11 however, more than a decade of clinical legal teaching has also informed me that student attitudes to reflective writing are varied and complex. in addition, students have a range of attitudes towards the usefulness and validity of reflective writing. anecdotal evidence over many years (from conversations with individual students and classroom discussions) has suggested that students generally find reflective writing difficult at first, but over time they come to value the skills involved in reflection and the extra dimension that it provides to a clinical placement experience. of relevance also is the fact that the majority of current law students are part of ‘generation y’ or ‘the millennials’ (born between 1982 and 2002).12 the learning styles of this generation have been noted to be different from those of earlier generations, most particularly because they have grown up with digital media as a constant presence in their lives, and also because they may be ‘the most supervised and scheduled child generation ever.’13 members of generation y have been found to be kinaesthetic learners14 who prefer active learning, structure and teamwork, accompanied by an increased emphasis on skills 10 see ojienda t.o. and oduor m. (2002) ‘reflections on the implementation of clinical legal education in moi university, kenya’, 2 international journal of clinical legal education 49, 50. 11 ojienda and oduor, above, n 3, at 49, and grimes, r. (2000) ‘learning law by doing law in the uk’, 1 international journal of clinical legal education, 54. 12 carver, t, (2011) ‘peer assisted learning, skills development and generation y: a case study of a first year undergraduate law unit, 37 (3) monash university law review, 203, 204. 13 neil howe & william strauss, (2000) millennials rising: the next great generation, 134, vintage books, cited in carver above, 205. 14 carver, above n 12, 206. development, or process over content.’15 it was considered important to ascertain the attitudes of current students towards reflective writing, given that it is a predominantly solitary and extremely personal activity. but does the process of being forced to reflect really make students more reflective about other tasks, their work and other aspects of their lives? the research aimed to identify whether reflection-in-action in a professional context is likely to take place after a clinical legal education experience. part ii of this article identifies the aims and objectives of the research that i carried out. part iii of this article explains the research methodology which involved two forms of data collection. individual students were asked to provide responses to a questionnaire. all students who responded to the questionnaire were also invited to participate in a focus group in order to supplement the data obtained from the questionnaires. part iv offers an analysis of the data that was obtained from the research. part v offers conclusions that can be drawn from the research and a series of recommendations for the development of a reflective writing pedagogy, including some innovations that i propose to implement. part ii: aims and objectives of the research the aim of the research was to identify student perceptions about reflection and reflective writing as an assessable component of the clinical course16 which i teach. i 15 carver, above, n 12, 206. consider this to be an important aspect of the teaching-research nexus which underpinned the establishment of the legal advice clinic which is where most students complete their clinical placement for the course. one of the aims of the course is to develop and improve self-awareness in law students, as a means of providing a coping mechanism for stressful situations. the need for such programs has been identified in the literature.17 reflective writing is considered to be an important part of the development of self-awareness but the research aimed to explore student attitudes about this. in particular, the objective of the research was to ascertain whether student perceptions of reflective writing match faculty perceptions of the benefits of reflective writing in clinical legal education. there were three main aims: • to ascertain the perceived benefits of reflective writing from a student perspective. • to ascertain the sources of student anxiety in relation to reflective writing. • to develop an improved pedagogy of reflective writing in the clinical legal education context. much has been written about the value of reflective practice in a professional context. teaching structured reflective practice in a clinical context is said to assist 16 at the writer’s university, each ‘subject’ is called a ‘course’. some universities use the term ‘unit’ or ‘topic’. in this article, the term ‘course’ will be used. 17 see, for example, james c (2008), ‘lawyer dissatisfaction, emotional intelligence and clinical legal education’, 18 legal education review 123, 135. with the development of reflective practice and reflection in action18 after graduation. evans et al also emphasise that reflection in a clinical setting assists students in the development of responsibility, resilience, confidence, self-esteem, self-awareness, courage and humility.19 although the benefits of reflective writing have been well documented, there is a gap in the clinical legal education literature in relation to whether or not law students actually do find reflective writing to be a positive experience. i considered it important to ascertain student attitudes towards reflective writing in order to ‘sell’ reflective writing to future students. i believe that explaining the attitudes of past students to current students is an important part of clinical pedagogy. knowing that some students found reflective writing to be a negative experience, i wanted to formally explore the reasons for the negativity in order to address them. my research started from the premise that there appear to be three key assumptions inherent in the expectation of clinical legal educators that students will write an assessable reflective analysis of their clinical placement. the first assumption is that students know how to reflect and that reflection is a natural innate skill. in a previous article20 i have expressed the view that students need to be taught how to reflect, and clinical teachers must teach the skills of reflection before students are 18 evans, a, cody, a, copeland, a, giddings, j, noone ma, rice, s and booth, e (2013) best practices: australian clinical legal education, office for learning & teaching, department for industry, innovation, climate change, science, research and tertiary education, esp. pp 34, 44, 50, 56, 58. 19 evans et al, above, p 58. 20 spencer, above n 2. able to reflect effectively.21 on the understanding, therefore, that students need guidance on how to reflect, i wanted to ascertain student attitudes towards reflective writing. the second assumption which underlies the expectation that students will produce an assessable piece of reflective writing is that students actually want to reflect. anecdotal evidence and corridor discussions with students suggested that students have a level of concern about reflective writing that is being ignored by clinical teachers and others who require students to produce assessable reflective writing. a formal enquiry was considered necessary to unearth such concerns so that they might be addressed. a third assumption is that students find reflection a useful and positive experience and that reflection enhances the placement experience. the literature strongly argues that it does. in addition to the desired goal of enhancing the placement experience, one of the aims of the development of the skill of reflective writing is to provide students with a useful skill. but i wanted to know whether students find reflective writing to be useful. i wanted to find out whether pedagogical perceptions of usefulness matched student perceptions of usefulness. further, if students do not find reflective writing to be useful, why not? i also wanted to examine whether or not students perceive reflective activity as enhancing their clinical placement experience. i wanted to understand the reasons why some students are finding that reflective writing does not enhance the placement experience. the research aimed to 21 see spencer, above, n2, especially pages 187-203. identify possible improvements in the way that reflective writing is taught in order to enhance both the perception and the actuality of usefulness. this research is not only important for clinical educators. reflective writing as an assessable component of law courses now extends beyond clinical programs and is widely used in a variety of subjects. in the writer’s own law school, for example, reflective reports and other forms of assessable reflective writing are required in a number of introductory first year law courses (such as contract law), as well as in later year courses (such as evidence) and elective courses (such as family law). part iii: approach and methodology the research design envisaged that all students enrolled in my clinical legal education course would be asked to respond to a survey about reflective writing. i conducted qualitative research by way of a personal questionnaire. approval from the relevant university ethics committee22 was sought and obtained to distribute questionnaires to students enrolled in my legal professional and community service experience course. this is a clinical legal education course where students are placed at a variety of external placement offices or within the school of law’s own legal 22 human research ethics committee at the university of south australia. advice clinic. a comprehensive description of the assessable reflective practice exercises in my course is provided in my earlier article.23 my law school operates on a trimester system, in which the academic year is divided into three terms. the clinical legal education course is offered as an elective course each term. i am the course-co-ordinator and i teach the course for two out of three terms every year. however, in 2013, i did not teach or co-ordinate the course in terms 1 and 2, and a different member of staff performed this role. a questionnaire was handed out to all students present in the last class at the end of each term for four consecutive terms (terms 1, 2 and 3 in 2012 and term 1 of 2013). students were provided with an information sheet about the research that was being conducted and invited to participate by writing answers to the questions on the survey sheet. not all students enrolled in the course were present during the time of the questionnaires being handed out, so the responses are not representative of the entire student cohort from each term. however, all students present each time filled out the questionnaires. it was made very clear that it was a voluntary activity. no student declined to complete the questionnaire. across the period of four terms, there were a total of 51 students enrolled in the course.24 out of 51 students, 28 students completed the questionnaire, representing 54.9% of the enrolled students across that period of time. the answers to the 23 spencer, above, n 2. 24 a total of 8 students in term 1 2012; 17 students in term 2 2012; 9 students in term 3 2012; 17 students in term 1 2013. questionnaire were handwritten and then submitted to me. all responses were anonymous and so student participation could have no bearing on their assessment in the course. the questions were: 1. have you found keeping a reflective portfolio to be a positive or negative experience? why? 2. do you find reflective writing easy or difficult? explain. 3. have you found writing a reflective journal to be a useful exercise? why or why not? 4. has the process of being forced to reflect made you more reflective now about other tasks/ work/aspects of your life? 5. has the process of reflection enhanced or detracted from your placement experience? please explain your answer. 6. have you been worried / frustrated / concerned about reflective writing? please elaborate. 7. please provide any other feedback you have about the reflective writing component of this course. after completing the questionnaires, students were also invited to attend a focus group to speak in more detail about their experiences of reflective writing. nine students participated in a focus group.25 the focus group discussion was recorded on a digital audio-recorder and the results transcribed. students participating in the focus group were provided with a copy of a ‘participants’ information sheet’ which outlined the aim of the research, the fact that responses were confidential and that 25 on 4 april 2013. participation was voluntary. participants also signed a consent form acknowledging that they were participating voluntarily and that their responses would be de-identified. approval was obtained from the university human research ethics committee to conduct the focus group. all students who attended the focus group had already been assessed in the course so there was no question of student participation having any bearing on their grades. i conducted the focus group, which was an informal occasion with a pleasant atmosphere. students who agreed to attend the focus group were aware that i would be conducting it. i considered whether my presence would influence the results but the students who attended were very frank and forthright with their comments, and appeared to appreciate the opportunity to discuss their views. i do not believe that my presence affected the results in any way. although some quantitative analysis has been conducted in relation to the responses, the research was predominantly a qualitative study of student responses to the seven questions. this article provides an analysis of the responses to questions 1, 3 and 4 and focusses on whether or not students found reflective writing to be a positive or negative experience. it also examines student perceptions of the usefulness of reflective writing as an ongoing life-long learning skill. the responses to questions 2, 5 and 6 pinpoint specific difficulties identified by students as inhibitors to reflective writing. these responses are analysed in a separate article.26 part iv: results of the research & conclusions this part sets out a detailed analysis of the responses to the survey questions 1, 3 and 4 and the data obtained from the focus group. analyses of the responses to each question are provided sequentially. iv (i) question 1: have you found keeping a reflective portfolio to be a positive or negative experience? why? out of 29 written responses to this question, 24 students specifically stated that they found keeping a reflective portfolio to be a positive experience although they expressed different reasons for this. four students stated that they found it to be a negative experience. one stated a ‘neutral’ position. the responses to question 1 provide a useful insight into why most students find reflective writing to be a positive experience. several of them used words like ‘focus’, ‘interesting’, ‘beneficial’, ‘it helps me’, ‘sense of direction’ and ‘great’. this discourse suggests that students are able to identify specific reasons for deciding that reflective writing is a positive experience. the discourse employed by many students is suggestive of reflection-on-action having the potential to develop into reflection26 spencer r. (2014) ‘private lives: confronting the inherent difficulties of reflective writing in clinical legal education’, 21(2) international journal of clinical legal education. in-action27. expressions like ‘a view to improve’, ‘long term effect’, ‘in the long run’, ‘a great habit / experience to learn’, ‘a sense of direction’, ‘keep tabs on my work and progress’ all imply that reflection is something which might be considered beyond the bounds of the course and into the future. student responses to question 1 identified a number of reasons as to why they found reflective writing to be a positive experience, including the ability to be objective about their own progress and development. this is evident in the students’ terminology which identifies the opportunity for objectivity as a positive aspect of reflective writing. for example, the ability to ‘look back’ on their experiences was regarded positively by a number of students, as was being able to ‘see how i have developed’. the ability to learn from experiences was strongly favoured, as was the opportunity to focus on achievements. for example, one student said: forcing yourself to take a step back & analyse yourself, your effect on others & particular events with a view to improve & reflect on how others perceive situations & the long term effect of such is very interesting. it also allows you to take stock of things & remove yourself from the scenario for a greater depth of analysis. one dominant theme was the positive reaction to self-awareness as part of professional development. several students referred to their ‘development’, a ‘sense of direction’, ‘what i need to improve on’ and the ability to ‘learn from experience’. this discourse suggests personal satisfaction and a demonstrated sense of 27 schön, d.a. (1983) the reflective practitioner: how professionals think in action, usa: basic books. achievement. these types of comments are very introspective and indicative of a level of self-awareness that is desirable for the development of emotional intelligence. the experience is described as positive from a personal point of view; the use of personal pronouns is a recurring theme, indicative of a recognition that the reflective writing process is personal and idiosyncratic. for example: it allows me the chance to reflect back on my portfolio and see how i have developed and grown. it helps me focus at placement & focus on learning at placement, instead of worrying that i’m not performing well enough, then it helps me organise what i’ve learnt once i’ve got home. i have found it to be very beneficial for me on a personal level. i think that it is not easy to know how much you have learnt or grown without reflecting. the concept of ‘focus’ was a common theme. several students liked the fact that reflective writing created order for them: it helps me focus it helps me organise what i’ve learnt it allowed for me to keep tabs on my work and progress interestingly none of the questionnaire responses indicated an adverse reaction to writing in the first person, a critical element of reflective writing which has been noted to be contrary to traditional legal discourse which is ‘clear, orderly, linear, objective and rational.’28 although this was not specifically asked in the questionnaire, it is noteworthy that no students raised it as an issue of frustration or concern. however, students in the focus group did raise this as an issue. the keeping of a reflective journal has been mentioned in the literature as a means of developing emotional intelligence. 29 one student specifically commented on reflective writing as a positive experience in the context of emotional reactions to issues on placement: it also gave me an output for my emotions – as some of my experiences on placement i found to be quite emotional. another student mentioned ‘feelings’: it has been positive to reflect on my learning, outcomes, feelings and my growth from the differing situations experienced on placement / uni. several students raised negative issues. however, the negative comments tended to be in the context of initial hesitation at the start of the reflection process. many students articulated some sort of struggle at first, followed by a deeper understanding and appreciation once the writing process was over, for example: 28 berger, above, n 8. 29 see, for example, spencer, above, n 2; james c, ‘seeing things as we are. emotional intelligence and clinical legal education,’ (2005) 8 international journal of clinical legal education 123; pololi lp and frankel rm, 2001 ‘reply to ‘vanquishing virtue’: the impact of medical education,’ acad med 17(12):1172; duke s and appleton j, ‘the use of reflection in a palliative care programme: a quantitative study of the development of reflective skills over an academic year’, 2000 journal of advanced nursing, 32(6) 1557-1568. it was a little annoying to try to keep up with it each week, however it is more beneficial in the long run. initially i viewed it as a chore, but having done it, i now see the benefit as it makes you stop and think about how and why you do things. the finding that students are initially hesitant, even resistant, to reflective writing reenforces my view that in order to be effective, reflective writing must be practised regularly. many students seem to recognise the value of ongoing reflective writing practice. one student said described it as: a great habit / experience to learn students particularly valued the opportunity to monitor their own performance and development. they also appeared to recognise the importance of the difficulties encountered in the early stages of reflection. a number of students employed a discourse that indicated an appreciation of the experience of disorientation or confrontation. students identified that they need ‘disorienting moments’30 in order to learn from their experiences. from a student perspective, this may be interpreted as a negative factor but from a pedagogical point of view, these ‘disorienting moments’ 31are important in the clinical experience. this forms part of the reflective writing pedagogy. it is important to let students know that they may experience 30 see quigley f, 'seizing the disorienting moment', 2 clinical law review 37, 51, aiken jh, 'striving to teach "justice, fairness and morality" in (1997-1998) 4 clinical law review 1, 24 and spencer, above n 2, 193. 31 quigley, above. these negative sensations and feelings as part of the reflective process. this is all part of the ‘disorienting moment’. one student articulated the need for reflection to develop self-awareness: the more i reflect, the more i become aware of things that happened and how my experiences have shaped me and my thinking. this is one of the foremost lessons of clinical legal education, to encourage students to consider situations from perspectives other their own, in order to develop empathy. once the notion of empathy has been understood, then the concept of client-centred practice makes more sense. some responses demonstrated berger’s notion of constructing meaning from reading and writing, derived from the need to ‘start and continue a conversation’32 between the student as reader and the student as writer, allowing the student to conduct the ‘continuing audit of meaning’ that is necessary for critical reading and writing,33 for example: i already reflect constantly on myself. i clearly understand my negatives & positives in both my personality & actions. however, making it compulsory requires a deeper analysis than what i usually do. 32 berger, above, n 8, 172. 33 berger, above, n 8, 37 173. one student commented on the ability to ‘look back & see how far you have come’ as a positive aspect of reflective writing. this student also noted that being able to develop your deeper thoughts & to put them down on paper was a positive activity. i would say the experience was positive as it provided an outlet for reflection and allows for future recollection – if anything it allowed for me to keep tabs on my work and progress in organising placement. some students admitted that they found the task challenging, but that the challenge produced a positive reaction: positive experience. the more i reflect, the more i become aware of things that happened and how my experiences have shaped me and my thinking. it’s like i’m searching my brain for reasons of why it makes me act in certain ways. it’s a bit of a hassle but i wouldn’t go so far as to call it negative. i find i struggle to think of things to write down because when i internally reflect during a situation i don’t grab onto an idea ready to write it down later. both. positive because it helped me recognised (sic) why i acted the way i did and helps me learn from that experience. negative because the depth required (i.e. talking about your actions re: society as a whole) was quite time consuming and at times perplexing. in relation to the reflective writing experience itself, a number of students used negative descriptors such as ‘confronting’, ‘annoying’, ‘tedious’, ‘a chore’, ‘time consuming’, ‘perplexing’, ‘difficult’, ‘intensive’, ‘challenging’ and ‘hard’. others used negative descriptors when describing themselves during the reflective writing experience, such as: i feel quite awkward and uncomfortable i was overwhelmed i dislike writing my thoughts down to share ...it isn’t something i enjoy some students specifically commented that they had a positive reaction to the act of reflection but a negative reaction to committing reflections to writing on a regular basis: it was a little annoying to try to keep up with it each week… i have found the process a little tedious. …the depth required ... was quite time consuming and at times perplexing. some students linked negativity with reflective writing in the context of the assessment scheme: rather than being reflective, i care more about the marks that i will get. i give out what i think the lecturers will want rather than being reflective of my personal strengths / weakness. further, i dislike how our subjectivity is marked in such an objective way. it’s demeaning for our personal, emotional and reflective values. this concern was discussed in the focus group where there was an overwhelming sentiment that there was too much assessable reflective writing. for example: i don’t think there should be that much reflection, not that much for the whole subject... others argued that the requirement for critical reflection was onerous and difficult. one student said: ... even for our first assignment when we had to do a reflection on something that happened in the clinic, she’s like, ‘go deeper and deeper and deeper,’ and ... i can only go so deep in a thousand words ... you can only go so deep and still relate it to other stuff, you have to get that balance and that balance is really difficult. some students expressed frustration that the person marking reflective writing assignments imposed their own subjectivity onto the students’ reflections. for example one student in the focus group said: what i don’t like about reflection is that they tell you to write how you feel and how you felt and what you did ... but like you write how you feel and whatever and then it’s up to the person marking to say whether what you felt was right. another issue raised by several students was that writing a reflective journal necessitated ‘finding something to worry about’. one survey respondent commented that: it’s difficult to just be at placement and take it all in when you have to worry about finding something to worry about. this is perhaps a misunderstanding about the ‘disorienting’ moment and perhaps also an indication of a misunderstanding about the required subject matter. an important conclusion to be drawn from this finding is that instructions for the subject matter for reflective writing must be made very clear: critical analysis does not equate to criticising the placement or finding something about which to express negativity. reflection is not about finding something to worry about. it is about a deep consideration of the student experience from the perspectives of all involved. iv (ii) question 3: have you found writing a reflective journal to be a useful exercise? question 3 was designed to probe the assumption that reflective writing is perceived by students as a useful exercise. i wanted to find out whether pedagogical perceptions of usefulness matched student perceptions of usefulness. if students did not find reflective writing to be useful, why not? twenty-eight students answered this question. students articulated various categories of ‘usefulness’ of reflective writing. the first category of usefulness was in relation to writing skills. some said that reflective writing was ‘a good skill to have’. one student said that reflective writing had ‘helped me to develop a new writing style.’ a large number of students mentioned organisation as a key positive factor in the usefulness of reflective writing. for example: it has been useful for me as it allows me to keep matters in context. it is somewhat of a natural extension of what i have done internally for many years, now manifest into words. … it helps me organise what i’ve learnt. it also helps me to see how i’ve progressed & it helps me to see how what i’ve learnt in class can be applied to the real world. it has helped me remember what i have done on a daily basis, and helped me identify the skills that i need to work on. one student said that reflective writing was invaluable for ‘life in general’ while another found it useful because: i already keep a journal & have documented my life since about 13. i did this so if one day i get rich & powerful, i can publish a biography of how i did it. the third category of perceived usefulness was in the context of the placement; a number of students said that reflective writing helped in some way with the placement or with the student’s own particular professional development. use of words like ‘progress’, ‘progression’, ‘development’, and ‘improvement’ were common in this response. a common theme in the responses was an appreciation of being able to self-monitor personal development and progress. some students said that the reflective journal helped them to overcome an initial lack of confidence, e.g. keeping a reflective journal has been a useful exercise because it’s allowed me to put on paper my experiences/goals/thoughts at placement. i’ve seen myself develop as a “student advisor” on paper and its (sic) helped me overcome some of my initial fears of placement, i.e. lack of confidence. yes, it was useful in helping me identify aspects of my professionalism that could be improved. very beneficial for learning. your (sic) able to see where you’ve come from and then build on certain skills to improve them. for me, it is always about improvement – and i’ve certainly found that by keeping a reflective journal i am able to do this. one student commented that it was ‘useful to be able to get everything on paper … my reflections would probably be useful if i went back and looked them and thought how they could help my work experience. another student found that reflective writing enabled the creation of ‘a record of my thoughts and reflections’ which enabled the student to ‘consider them more carefully & bring them to the front of my mind.’ this student recognised that this enabled more careful consideration than a ‘fleeting’ reflective thought would have otherwise engendered. there were several comments indicating an appreciation of reflective writing as an exercise in critical thinking. critical analysis of the placement was seen as a useful and beneficial exercise by some students, adding value to the placement experience ‘instead of simply going through the motions’. one student commented on the readings provided as part of the course: 34 34 the readings are scholarly articles, mostly by clinical legal educators, about access to justice, clientcentred practice, empathy, emotional intelligence, law reform, the role of lawyers and legal ethics. some articles about reflective writing are also provided. using the articles we read really helped with the reflecting. it expanded our thoughts & the issues we reflected on. yet another student appreciated that keeping a reflective journal enabled critical thinking about ‘how i would have dealt better or react to the incident, identify ways of improvement in case it happens again in the future.’ the fourth category of perceived usefulness was in relation to dealing with clients. for example, one student said: it was useful in the sense that i was able to relate it to the clients i dealt with. however, in some respects i felt i was becoming too pretentious and it detracted from talking about the ethics and skills involved in placement. finally, the fifth category of perceived usefulness was applying theory to practice. a number of students identified that making notes of placement experiences assisted with learning ‘how the law is applied in the ‘real world’. four out of 29 students did not find writing a reflective journal to be a useful exercise. these students said that keeping a journal was not necessary to facilitate reflection. however, they all made the comment that they were able to reflect and that they believed that reflection was important. but they did not see the necessity to actually record their reflections. i explored this further in the focus group. one student in the focus group said: you sort of more understand with another subject, maybe like psychology or something like that but … to go as deep as we’re required to it’s just...a bit of a pain in the butt to be honest. you go to a certain point and then … it’s just like, really, you know, i know it’s supposed to be helping us, and it does in a sense, but, maybe not to the extent that we’re required to, i don’t think it’s helping. i don’t think that it’s beneficial to me, in that way, to be honest. iv (iv) question 4: has the process of being forced to reflect made you more reflective now about other tasks / work / aspects of your life? out of 29 responses, 15 responses to this question were negative. this suggests that reflection-in-action might not be something that will immediately become part of professional life. this finding demonstrates that even though most students find reflective writing to be useful (refer to responses to question 3), they may not necessarily use the skill of reflection beyond the course. on the other hand, a number of the responses indicate that they may be reflective in other aspects of their life, but not because of having to reflect for this course. some responses suggest that having to reflect in the course will not have an impact on other aspects of life: no. i have never enjoyed reflection to a great extent, so therefore it has not changed how i do things and look back on things. i do reflect on some things, but not any more than i did before. other responses suggested that the students will continue to reflect – many were at pains to point out that they do reflect already – but that the reflective components of the course have not been the catalyst for this. i was already quite reflective before. although it is possible that it has helped me organise my reflections better at times. i have always been a reflective person so it hasn’t really affected other aspects of my life. i already reflect in my head and think about ways things could have happened differently. i’m an expert at critical self analysis & reflection already. a focus group member said: i honestly think we all do it subconsciously anyway. it’s sort of like, after you do something, you always think about, ‘i should have said that, i should have done that.’ you always do it anyway so i honestly don’t think that it makes a difference. however, although some students may be naturally reflective, i am not convinced that all students and all lawyers do think about their words and actions after having done something. in addition, such students could benefit from the development of this skill. for me, this highlighted the need to emphasise the advantages of reflection by using prompts for reflective writing35 to enhance the quality of reflection. 35 see spencer, above, n 2, p 198 & 208 and j.p. ogilvy, ‘the use of journals in legal education: a tool for reflection’ in (1996-1997) 3 clinical law review 55 at 100 from a presentation by paul hettich, journal writing for teaching and learning in psychology at the 99th annual convention of the american psychological association (san francisco, ca 1991).36. some students openly declared that the process of being forced to reflect has not made them more reflective now at all and that they will not be reflecting more in the future. one student said: this is simply because i don’t have time to think about and act reflectively. in my previous work experience i have worked in an industry where you learn on the go and are required to learn quickly. sitting down and writing about it is not something i’ve found to be overly beneficial. not necessarily, at times may think / over-analyse things but not on the whole. these responses suggest that more needs to be included in the clinical teaching program about the benefits of reflection-in-action and that more of the literature on this needs to be discussed in class in addition to simply including texts and articles in the student reading lists. suggestions for implementation of this idea are included in part v. however, some students did say that they would now be more reflective in other aspects of their lives. these students commented on the dialogic aspects of reflective writing, in particular, the ability to consider a situation from multiple perspectives. they used expressions that highlighted new levels of self-awareness, like being ‘especially aware’ and ‘more conscious’: ...especially aware of how others may perceive my actions or their impact... ...more conscious of my reflections ... now i think more about thinking. yes, especially when reflecting about other peoples (sic) perspectives of certain issues. i’ve noticed that i have automatically been doing this all the time now, at soccer, work, at home etc. it will probably force me to look at things from an outsider’s perspective. other students drew a link between reflection and their own personal or professional development. one student said that being forced to reflect had crystallised the importance of reflection in order to grow & develop as a person. reflection was now ‘almost an automatic action’ for this student. another comment was that the requirement to analyse and discuss the placement allowed the student ‘to see where i am within the profession – having nearly finished my degree.’ reflection was also seen as a means of identifying skills…combined with personality and interests. this was seen as important for assisting with the identification of desirable employment after graduation. ...this reflective learning component allows for self awareness and therefore change, deep thinking, reflecting on other areas of your life, improves life skills. many students used language indicating that reflection is something that would form part of their life or work after the clinical placement. one student said that reflection was now almost an automatic action. another said ‘now i think more about thinking.’ another student found that reflection was so useful it had now become part of daily life: … ever since i realised the benefits of reflecting, i have started my own life reflections every night of all the good things i did that day and all the bad things i did so that way i am aware of my daily actions. although its (sic) very brief it still helps a lot and has improved the quality of my life. i can see how it would be useful & beneficial for future aspects at law school. ...to a certain degree i now employ my reflective skills in other tasks. ...it is likely to be beneficial for other aspects of my life, because i am able to look back at past experiences and improve myself. i’ve noticed that i have automatically been doing this all the time now, at soccer, work, at home etc. i feel the whole process and the course was invaluable. in relation to the journal the best aspect was relating my tasks and works / life to the journals of others and articles written by professionals. having to analyse and discuss within my journal allowed me to see where i am within the profession having nearly finished my degree. it will be useful for future students in my course to be aware of the benefits that past students have obtained and perceived from reflective writing. these will be incorporated into future classes. research has shown that students are strategic learners and their focus tends to be on issues which will be assessed.36 a number of the responses to question 4 reinforced this. several answers suggested that the students reflected because this was required for assessment, but did not value the process of reflection in itself. for example, one student said that the assignment submission was ‘[n]ot really reflecting, just telling the marker what they want to hear.’ strategies need to be developed to not only teach students how to reflect and how to write reflectively, but also to articulate the value of reflection. perhaps the word ‘reflection’ itself has developed a somewhat negative image. it may be the case that competitive law students would prefer to engage in an exercise entitled ‘placement analysis’ or ‘personal deliberation’ or ‘achievement analysis’ rather than ‘reflection’. time spent in class discussing schön’s work would likely be beneficial and useful for students who question the value of reflective writing. part v: conclusions and recommendations the research unearthed a variety of issues to be addressed in order to enhance reflective writing pedagogy. where concerns and anxieties have been raised it is hoped that these can be reduced or eliminated. some of the students’ responses raised issues that i had not previously considered. this has informed my teaching 36 ramsden p (2013) learning to teach in higher education, routledge, london, p53; entwistle, n (1981) styles of learning and teaching: an integrated outline of educational psychology for students, teachers and lecturers, wiley, chichester, p 103, cited in holland below, n 58, p 27. practice and indeed has added to the scholarship of teaching and learning in this area. the value of reflection the research shows that students value the reflective writing experience. while teachers can promise each new cohort of students to believe that reflective writing is a positive experience, i now can tell my students that there is evidence to show that students do find it to be a positive experience. new students can be told that previous students found reflective writing to be beneficial, but that it is not an instant effect. the research shows that students talk about the benefits as a ‘long term’ result. most particularly, the students who participated in the research have indicated that one of the benefits of reflective writing is the ability to ‘focus’, to ‘reflect on what [they] may need to improve on’, to ‘organise what [they have] learnt’, and to ‘see how [they have] developed. from this research, i have learned that the pedagogy of reflective writing must include structured sessions that reinforce the idea of student consciousness of their own personal and professional development. uniformity of experience in my clinical program, there are a variety of external placements as well as the internal clinic where students might be placed. this is not unusual. one consequence of this is that students gathered together in one discussion class may collectively be undergoing a wide variety of placement experiences. their responses to discussion topics will therefore be strongly nuances according to the environment in which they are placed. some students will be placed in an environment with a strong individual client focus (especially in the clinic). others will have a law reform focus or an administrative focus. some responses serve as a reminder that the clinical teacher must be deliberately and consciously inclusive of all students in all types of placements in all classes. this means checking with students in the discussion group whether they feel that the topic is relevant to their particular placement. in this way, students can be guided as to how they can interpret the theme of the discussion to match their placement experience. for example, a student placed at an external agency may have to consider who the ‘clients’ of the agency are. my research has taught me that clinical teachers must always be mindful of the variety of student placement experiences, and actively ask students in each class to consider how the discussion topic is relevant to their individual placements. reflection-in-action a number of students said that they already either keep a journal or engage in some sort of reflective activity. others observed that the requirement to reflect intruded into the actual placement tasks. some students expressed frustration in relation to the written aspect of reflection. it is considered necessary to develop reflective writing pedagogy to include class time that assists student understanding that reflective writing can facilitate thinking skills and also to highlight the difference between the reflection in which some students already engage and the deeper reflection that is now required of them. the clarification of the purpose of reflective writing must be effected early in the course. it is also necessary to clarify for students that reflective writing is more than self-evaluation. 37 some students appear to regard reflection as an end in itself rather than a tool for guiding action.38 i provide students with prompts to stimulate reflection but it is possible that when it comes to completing reflective writing for assessment, some students do not use them. including the prompts in the actual assessment instructions will facilitate deeper reflection and hopefully eliminate student frustration. instructions for assessable reflective writing tasks should include reflection ‘prompts’ which encourage and stimulate critical dialogic reflection. one student noted that ‘[t]he formal nature of this reflection has made me more conscious of my reflections. whereas before they were a natural occurrence, now i think more about thinking.’ it is likely that this is not a flippant remark. this student is suggesting that the very process of thinking, or considering and reflecting can be structured. it would be useful to incorporate this discourse into reflective writing pedagogy by saying to students: think about the way you think. do you think like everyone else? why not? how do you know? what influences the way you think? e.g. background, 37 kennison, m (2012) ‘developing reflective writing as effective pedagogy’, nursing education perspectives vol 33, no 5, 306. 38 freire, p (2007) pedagogy of the oppressed. new york: continuum, cited in kennison, above, 306. heritage, age, responsibilities, fears, goals etc. clinical teachers should actively ask students to consider the way that they think and what external influences exist in relation to the way they solve problems and confront dilemmas. part vi: conclusion this article provides an analysis of the results of formal research that was conducted into student perceptions of reflective writing in the clinical legal education context. the research had a dual purpose. its first purpose was to investigate whether students perceived any benefit from reflective writing. the second purpose was to investigate the difficulties that students actually encountered in writing in a way that is particularly different to other forms of academic assessment. this article has analysed the results of the first objective. a further article analyses the results of the second objective. the objective of this research was to ascertain whether student perceptions of reflective writing match faculty perceptions of the benefits of reflective writing in clinical legal education. qualitative research has revealed that perceptions differ amongst the student cohort and that not all students perceive benefit from reflective writing in the clinical legal education context. however, the majority of students surveyed for this research indicated an appreciation of reflective writing as an enhancement to a clinical placement. their responses have generated a series of recommendations that clinical legal educators might consider in their own pedagogical practices. this article has described and explained the first objective of a large research project: to ascertain the perceived benefits of reflective writing from a student perspective. the research has revealed that students perceive a variety of benefits, most particularly the development of critical thinking skills and as a tool for personal and professional development. as a consequence of this research, i have developed an improved pedagogy of reflective writing in the clinical legal education context. part v offers several suggestions and recommendations as to how this improved pedagogy might be achieved. these recommendations are relevant not only in law schools, but in any discipline where reflective writing is embedded within the curriculum. like my earlier article, this one has been written with a view to sharing my experiences so that other teachers of similar courses might benefit from my research and also from my conclusions and recommendations. 257699b_ijcle_july_09 assessment– are grade descriptors the way forward? victoria murray and tamsin nelson* the debate on how best to assess clinic, or indeed if it should be assessed at all has raged for decades and shows no sign of abating. the passage of time has been unable to resolve the question of assessment, no doubt due in part to the expansion and diversification of clinical legal education. the scope of clinic and its role in both society and as a teaching method is constantly evolving and assessment methods must develop to reflect the ever changing clinical profile. in an attempt to bring its assessment regime up to date, in 2007/2008 northumbria university’s student law office modified its assessment regime, replacing outmoded criteria with grade descriptors. this paper focuses on the use of grade descriptors and criterion referenced assessment in clinical legal education, addressing whether clinic should be assessed and which of the two methods is best suited to clinical legal education. the article draws on the experiences of clinicians and students to determine what issues this change in assessment regime has raised for the assessors and the student body. it concludes that it is appropriate to assess clinic by fully grading and suggests grade descriptors are the way forward. introduction in 2007/2008 northumbria university’s award winning student law office (slo)1 overhauled its assessment regime, replacing an outmoded list of criteria with grade descriptors. this paper provides an evaluation of these two assessment methodologies, with specific reference to their adoption in a clinical setting.2 after many years of criterion referenced assessment, grade descriptors were mooted and slo clinicians agreed they should be adopted for the academic year 2007/2008. this change in assessment regime was welcomed not least because it was anticipated the grade descriptors would remedy what the supervisors perceived to be increasingly problematic assessment criteria. in * senior lecturers in the school of law, northumbria university, uk. the authors wish to express their gratitude to their clinical colleagues and students who contributed to a focus group and responded to questionnaires, which enriched our research. our thanks also extend to elaine hall who greatly assisted with the student questionnaires. this paper was presented at the ijcle conference, university college cork, ireland, 2008. 1 in 2008 the student law office was awarded the attorney general’s pro bono award for best contribution by a law school. 2 for a full consideration of assessment in the clinical environment see stuckey, r. & others. (2007) best practices for legal education. available at http://cleaweb.org/documents/best_practices_for_le gal_education_7_x_10_pg_10_pt.pdf (accessed on 11 august 2008). international journal of clinical legal education july 2009 48 3 full time students on the freestanding legal practice course and bar vocational course can also participate in the slo from january to june. 4 where a positive impression of the student has been formed which can inf luence the assessor to subconsciously distort information favourably this is known as the halo effect and conversely, where a negative impression has been formed this is referred to as the horns effect. dunn, l., morgan, c., o’reilly, m & parry, s. (2004). the student assessment handbook. london, routledge falmer. page 255. 5 stuckey, r (2006) ‘can we assess what we purport to teach in clinical law courses?’ 9 international journal clinical legal education 9–28 at page 23. particular, supervisors hoped that the grade descriptors would engender more reliable and consistent marking owing to their explicit detail. in order to appreciate the findings from the research undertaken in the slo, it is necessary to provide some contextual background information. the slo is a year long compulsory clinical module undertaken in the final year of the law school’s exempting law degree (eld).3 the eld is fully integrated, combining the undergraduate law degree with a one year post graduate vocational course. students graduating from the eld are eligible to commence the training stage necessary to qualify as a solicitor or barrister. in 2007/2008 approximately 130 exempting degree students completed the student law office module and clinical supervisors numbered 17. the slo counts for 2 full modules, the largest undertaken on the degree and the final year marks contribute 40 per cent towards the student’s degree classification. the mark achieved for the slo module can therefore play a pivotal role in determining a student’s overall degree classification. how is clinic assessed? clinic has many guises and consequently the modes of assessment are wide and diverse in order to reflect the particular clinical model in question. many clinics assess on both a formative and summative basis. the formative aspect of assessment in clinic is intended to provide feedback and give the student direction on how they can improve their performance. the purpose of summative assessment is to formally assess the student’s output. summative assessment may take the form of a numeric or letter grade, or may be on a pass/fail basis. some modules are not assessed per se but result in award of credits. it is summative assessment that can cause the most difficulty. the problem with clinic is that as students are usually assessed by their clinical supervisor there can be a large element of subjectivity when assessing. consequently, it can prove difficult to mark students objectively due to the close (or in some cases challenging) working relationship which has developed between supervisor and student throughout the year. this is known as the halo and horns effect.4 it is probably a question for another paper as to whether clinical assessment should include an element of subjectivity or if it should be, or is capable of being completely objective. there have been criticisms of having any subjective element in clinical assessment and in order to overcome these concerns, clinic can be assessed in a variety of different ways including obtaining feedback from clients, giving the student a point based score5 and using standardised clients. in order to assess the skills that a student has obtained whilst in clinic there is invariably a degree of subjectivity particularly if the person assessing is the student’s supervisor. one way to counteract this is for all students to write a standardised letter or critique a standard file which is assessed by an independent person. students can also create a portfolio of work that is accumulated over the course of the year and assessed. any of these methods of assessment can be marked on a pass/fail basis or graded. 49 assessment– are grade descriptors the way forward? in the slo, students submit a portfolio evidencing the live client work they have undertaken throughout the academic year. this will typically comprise draft and final versions of correspondence, attendance notes, research reports, legal pleadings and interview plans. the portfolio contributes 70% toward the mark for the module with the remaining 30% attributed to 3 written pieces reflecting on skills in practice, the law in action and one other optional reflective account selected from a prescribed list of titles. the portfolio and reflective pieces are assessed by the solicitor who has supervised the student during the year and these are moderated by a supervisor who has no connection to the student. the question then is how the portfolio or any other means of assessment is best assessed. should clinical work be assessed by way of general criteria or formalised grade descriptors? how should clinic be assessed – grade descriptors versus criteria for many years the student law office assessed student performance utilising a list of criteria. the 13 point list essentially required the clinician to evaluate “to what extent” a student had performed across a range of areas. for example, to what extent did they: • participate in and diligently conduct cases • begin to develop an ability to manage and analyse factual information • begin to develop an ability to plan the conduct of a case • demonstrate an ability to critically consider and analyse the development of their legal skills it can be sen from the above that the criteria were scant in terms of context. criterion referenced assessment the carnegie report hits the nail on the head when it identifies the key difficulty with criterion referenced assessment – ensuring consistency when grading.6 clinicians have qualities which they look for in students, and they will rank some of those abilities and attributes more highly than others. for example, commercial clinicians might rank drafting skills above those of advocacy, and vice versa for criminal clinicians. consequently, the question must be posed – using a list of criteria can we ever be entirely confident that we are marking to the same standards? how can we be certain that one clinician’s mark of 65 is comparable to another’s 65? stuckey highlights further issues with criteria based assessment when he states, “when criteria are given to students, they tend to be checklists that cover the entire spectrum of lawyering activities without any description of different levels of proficiency.”7 this quotation highlights two pitfalls of assessing using criteria. the first is that students will see the criteria as an inventory and may simply tick off what they have achieved from the list without perhaps considering to what extent that skill has been developed. furthermore, if the list is exhaustive students may not strive to achieve above and beyond the criteria specified. from a teaching perspective, the use of criteria may therefore stifle ambition to realise full potential and achievement. and what if a student 6 sullivan, w.m. et al., (2007) educating lawyers: preparation for the profession of law. san francisco: jossey– bass inc, page 170. 7 stuckey, r, best practices, op. cit at page 238. international journal of clinical legal education july 2009 50 displays qualities outside the scope of what is provided for by the criteria; can this be rewarded if those qualities do not explicitly appear within the assessment criteria? the other problematic aspect which stuckey identifies is the lack of guidance offered by written criteria. his assertion that they lack any description or meaningful instruction on performance levels is something of which slo clinicians were acutely aware. the lack of explicit guidance on performance levels resulted in uncertainty that each and every single clinician was marking to the same standard. one might hope that any inconsistencies would be rectified in the moderating process however, it must be extraordinarily difficult for a second marker to evaluate the work without the benefit of having monitored the student’s progress throughout the year. for example, two portfolios of work might contain excellent pieces of work. what may not be evident to the second marker is that one student may have produced excellent first attempts requiring little amendment or input from the supervising clinician, whilst the other student may have needed several attempts before achieving the finished product. furthermore, intangible attributes, such as initiative, will not necessarily be obvious to a second marker from viewing a collection of the student’s written work. whilst the lack of guidance on the one hand may lead to inconsistent marking, some clinician’s may enjoy the room for discretion which this inevitably allows. the flexible nature of assessing via an imprecise list of criteria arguably fits the unpredictable and personal nature of clinic. that is to say, a rigid and static assessment regime may be suited to a controlled form of assessment such as an essay or exam question, but given live client work often takes unexpected turns, clinic should have an assessment method which allows for discretion and flexibility. a list of criteria certainly possesses this quality, but arguably at an unacceptable level. furthermore, where criteria are too vague or lacking in detail, it is too tempting to rely on a subjective, rather than objective, assessment of the student performance, and subjectivity promotes inconsistent marking. it is clear, then, that there are issues with the use of a list of criteria as an assessment method from both student and teaching perspectives. thus, the decision was taken to abandon the use of criteria and a new assessment regime of grade descriptors was introduced. grade descriptors8 as a result of the above concerns, grade descriptors were formulated detailing the level students would have to reach in order to achieve a 2.2 classification (50–59%), a 2.1 classification (60–69%) and a first (70%+). they also profiled a fail student (<50%) and a strong first student (>80%). the grade descriptors were based on discussions with clinical supervisors regarding the factors they concentrated on when assessing students. the descriptors concentrated on the student’s ability to demonstrate autonomous learning. this encompassed the student’s ability to identify and apply the law, plan and manage cases, and learn from past performance. the grade descriptors identify the performance indicators which a student has to achieve across all classification levels. 8 the full grade descriptors can be viewed at http://www.northumbria.ac.uk/sd/academic/law/slonew/assessment/ 51 assessment– are grade descriptors the way forward? for example: a minor failing of the grade descriptors was identified when conducting our research. in some cases a performance indicator was not present across all classifications.9 this only became apparent when a detailed comparison of the grade descriptors was completed. for example, once a relevant performance indicator has been determined, care needs to be taken that it is tracked across the classifications. 9 this anomaly has now been rectified. international journal of clinical legal education july 2009 52 fail student 2.2 student 2.1 student first class student strong first class the student demonstrates little commitment or energy to achieving the best resolution for the client. the student will often demonstrate enthusiasm and empathy but commitment to the client’s case may be undermined by failure to do work to a sufficiently high standard. the student shows commitment to their clients and is able to demonstrate empathy for the client. there will be a high level of commitment to the client. the student’s communications with the client instil a high level of confidence about their ability to empathise with, understand and serve the client’s interests. fail student 2.2 student 2.1 student first class student strong first class the student will look to the supervisor for instruction; there is little sense of the student planning how best to progress the case. case management skills are likely to be weak. the student will carry out tasks assigned to him or her but will rarely show initiative in planning how best to progress the case. [no applicable performance indicator provided] [no applicable performance indicator provided] the student requires little active supervision and can be trusted to identify tasks and take appropriate action subject to supervisor approval. staff opinions on assessing using criteria and grade descriptors to gather staff opinion on the assessment regimes, slo clinicians were invited to a focus session at which both the criteria and grade descriptors were discussed. two staff focus meetings were held; one before and one after assessing using the new grade descriptor regime. both meetings were attended by clinicians of different subject specialism, and in order to obtain a full spectrum of opinion, new slo clinicians who had used neither regime also contributed. the first meeting at the initial meeting supervisors felt that by assessing using the criteria they were effectively free to grade a student as they wished because of the malleability of the criteria. there was a strong consensus that the most important criteria were the ones that related to a student’s proactivity on the file, namely the last two criteria on the list: • begin to develop an ability to review case files and to plan the conduct of a case • begin to develop an ability to manage and analyse factual information on case files there was a solid belief that these two criteria were critical in distinguishing between students and in providing a specific grade. several supervisors confirmed that prior to marking they ranked their students before looking at the portfolios, then they would look at the portfolio to see if their ranking fit the criteria. they paid particular attention to the above two criteria to grade the students, although in most cases they already had the classification in mind. overall supervisors felt the use of the criteria when marking did not particularly influence them in their assessment as most had a good idea of what the final grade was going to be for a particular student. however, they were concerned about the subjective nature of using criteria to assess students. it was agreed that under the criteria it was difficult for students to truly understand what performance was required to achieve a particular classification. this led one supervisor to state that all students “fear the subjectivity of supervisors”. however another supervisor argued that in a non clinical module, markers receive an answer guide but no indication of the level required for each classification, yet this is seen as objective marking.. at this first meeting the grade descriptors were also discussed to ascertain supervisors’ views on their use for the up-coming assessment. there was a general feeling that the descriptors would promote greater consistency of marking and that students would have more guidance as to what supervisors were looking for. this did pre-suppose that the students looked at the grade descriptors and worked with them throughout the course of the slo.10 supervisors generally agreed that having the grade descriptors made them feel more confident that their expectation of a 2.2 was the same as other supervisors 2.2; this was particularly the case for first time supervisors in the slo who had not previously graded clinic. one concern with the descriptors was that they could be used as a ‘tick chart’ with supervisors simply ticking across the range of classifications with the ticks simply added up to establish what classification the student would achieve. it was, however, felt that this was unlikely to happen and the general consensus prior to marking was that a student would not be given a mark that the supervisor did not think they deserved. 10 one supervisor asked his students whether they had used the grade descriptors whilst in the slo and the consensus was that they had looked at them at the start of the year however they had not then referred to them again until the mid-year appraisal. 53 assessment– are grade descriptors the way forward? an issue was raised both with the criteria and grade descriptors as to whether the students were graded on the day that the assessment was handed in or were they graded over the course of the year and therefore credit was to be given for improvement. there was a strong sense that the criteria did not address this and that arguably the grade descriptors did not either. one supervisor stated that, “i assess students all the time and what i am doing is developing an impression of them and varying the level of expectation. on the [hand in date] i will come to my final conclusion. that has got to be my assessment otherwise i will prejudice them ... and not give credit for improvement.” the second meeting after marking using the grade descriptors a second meeting was held with the same supervisors who had attended the initial meeting. they were asked what they felt about the grade descriptors having now utilised them to assess student performance. the initial expectation that the grade descriptors would inform the supervisor’s marking habits was confirmed previously using the criteria supervisors felt they graded using an element of gut instinct, due to the criteria being vague. conversely, the much more informative nature of the grade descriptors promoted objective and consistent marking as everyone was singing off the same explicit hymn sheet. clinicians felt more confident that they were marking to the same standard as their colleagues using the descriptors than when using the criteria, because there was no need to add flesh to the latter’s bones. it was stated above that the flexibility of written criteria afforded room for discretion when marking, which was, to some extent, a desirable feature. in the second focus group it was felt that as the descriptors were particularly descriptive, when grading there occasionally appeared to be a lack of room for manoeuvre. in particular, two supervisors felt that because of the prescriptive wording of the grade descriptors they felt compelled to award first class marks to students, who under the previous regime, would have received a 2.1 classification. furthermore, the grade descriptors have not removed weighting issues. for example, one supervisor might attach more importance to one performance indicator over another supervisor and this might affect overall mark. it was also felt that the descriptors were used much more by some supervisors over the course of the year therefore they were not relied on heavily at the time of assessment since the supervisor already had an idea of the grade in mind. the descriptors still did not remove the normative element of assessing the students as it appeared that there was still a tendency for supervisors to rank students prior to finally assessing them and awarding an overall grade. the grade descriptors did not therefore remove all the subjectivity of the assessment but certainly tempered it and since the mark needed to be justified against the descriptor, objectivity was more pronounced. from the moderation process it was noted that a mix of liberal and strict markers still existed despite moving to a much more explicit marking regime. overall, staff were satisfied with assessing via the grade descriptors and it has been agreed that they will be used for assessment purposes in the next academic year. student perspectives although having no experience of grade descriptors elsewhere on the degree, students appeared equally positive towards them. student views were obtained though an anonymous questionnaire, which was sent to all 130 full time final year students on the module, prior to being summatively assessed. a total of 45 questionnaires were completed, giving a return rate of 35%. 54 international journal of clinical legal education july 2009 the questionnaire selected 5 descriptors (commitment, key skills, insight, awareness of development and use of reflection) and reproduced the statement for that descriptor for each classification (fail, lower second class, upper second class, first class and strong first class student). for example, taking the descriptor for “commitment,” a failing student would demonstrate “little commitment or energy to achieving the best resolution for the client.” at the opposite end of the scale, the strong first class read “the student’s communications with the client instil a high level of confidence about their ability to empathise with, understand and serve the client’s interests.” the questionnaire then asked whether the student was confident that they understood the grade descriptor, whether they were confident they knew which level they were working at (fail, 2.2, 2.1, first class etc) and whether they were clear on what action was needed to improve to the next classification of descriptor. the responses available to students were: question not clear, strongly disagree, disagree, agree and strongly agree. the overwhelming majority of students indicated that they understood the descriptors.11 interestingly, although not all students were confident they knew their current grade level, the results indicate that on the whole, they were clear about what action they needed to take to reach the next level of classification. the questionnaire also included two further statements which were intended to shed light on student motivation. the first statement was “the grade descriptors influence how i carry out my live client work;” the second “i try to perform well because i’m working for a real person, rather than because i am being assessed.” the same responses were available to students and they were also able to comment on the statements. there was an even split: 21 students disagreed or strongly disagreed that the grade descriptors influenced their clinical work and 22 students agreed or strongly agreed with the contrary proposition. the additional comments also reflected the divided opinion. one student commented, “you’re thinking about doing best [sic] for client rather than what grade band you’ll fit into.” another student remarked that they tried, “to treat slo like practice and strive to achieve my best, therefore [i] will meet...the grade descriptors.” opinions about the second statement were much more uniform with 37 respondents agreeing or strongly agreeing that they were client rather than assessment driven. some students further commented that they were motivated by a “combination of the two” and felt it was a matter of balancing the two competing interests as they were not mutually exclusive. one candid student noted “i’d be a liar if i said the slo grade is not always at the back of my mind.” similarly one of the cohort thought it was “unavoidable” that their performance was assessment driven due to the impact the slo can have on degree classification. whereas rice12 views assessment driven motivation negatively, one student observed that, “in striving to get a good mark the client benefits from [a] high standard of work.” assessment– are grade descriptors the way forward? 55 11 for commitment students voted as follows: strongly agree 15, agree 26, disagree 3, strongly disagree 0 and question not clear 0. for key skills: strongly agree, 10, agree 32, disagree 2, strongly disagree 1 and question not clear 0. for insight: strongly agree 6, agree 35, disagree 4, strongly disagree 0 and question not clear 0. for awareness of development: strongly agree 9, agree 35, disagree 1, strongly disagree 0 and question not clear 0. finally, use of reflection: strongly agree 8, agree 30, disagree 7, strongly disagree 0 and question not clear 0. 12 rice, s. (2007) ‘assessing – but not grading – clinical legal education’ macquarie law working paper no. 2007-16 available to download at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1 061622 how the regimes compare – the statistics in 2006/2007, using the list of criteria, the average mark awarded for the portfolio was 65.6%, compared to 67.3% when applying the grade descriptors the following year. this is by no means a dramatic rise, although a closer inspection of further statistics highlights some interesting results. in particular there was a significant increase in the highest overall mark – 76% in 2006/2007 rising to 85% in 2007/2008. similarly, the number of first class marks jumped from 36 to 51. there are notable disparities in the year to year results, but what conclusions can be drawn from this data and how do the results compare to non clinical modules? it is possible that the higher results are a direct consequence of the explicitness of the grade descriptors. that is to say, students have a clear understanding of what is required to achieve the highest level and can therefore strive to reach those said levels. this cannot be said of the former criteria which lacked any meaningful guidance of what levels of proficiency were needed to achieve a particular classification. an alternative supposition is that the grade descriptors are too generously worded resulting in additional students scoring more highly than they ought. this is reinforced by the view, as stated above, of at least two clinicians who would have bestowed 2.1 classifications under the old regime, but for the wording of the grade descriptors compelling the award of a first class mark. this latter explanation for the increase in marks also draws support when one views the results of the same group of students in non clinical subjects. take for example the performance in a taught, classroom based year long module which would typically be assessed by the student sitting an end of year exam and submitting a piece of coursework. whilst the pedagogy will be vastly different, the two modules are of the same duration and both assessed, so the much touted notion of the “assessment driven student” is still omni-present. it is interesting to note therefore that in 2007/2008 the average mark for the clinical module was 68%, compared to 61% for non clinical subjects. what is perhaps more telling is the comparison of the marks awarded for the students’ dissertation, which, like clinic, is completed over an academic year with formative feedback. also, not dissimilar to clinic, the student has relative autonomy over the subject area to be studied.13 one might therefore suspect that the results would be relatively similar. however, this is not entirely reflected in the results; the average mark in 2007/2008 for dissertations being 64%. should clinic be assessed at all? in the staff focus sessions, whilst looking at how the slo approaches assessment of clinical work the question was raised whether we should move away from grading clinic and assess clinic on a pass/fail basis, or whether we should assess clinic at all. given that the aims and format of clinic are incredibly diverse it is not uncommon for clinical modules to lack any form of summative assessment. the trend for not assessing clinic generally attaches to voluntary or optional clinical modules. where law schools do formally assess clinic, again the practices vary. the module may be fully graded, marked on a pass fail basis or the student may be awarded a credit. if we take as a starting point stuckey’s comment that “the current 56 international journal of clinical legal education july 2009 13 in the slo students select a first and second choice area of law from a list of criminal appeals, employment, civil, business, housing, education and welfare benefits. the overwhelming majority if students are successfully placed according to their stated preference. assessment practices used by most law teachers are abominable,”14 we might well question whether no assessment is indeed good assessment. there are a variety of reasons why performance should be assessed, perhaps the most common being that it recognises the efforts displayed by students and it motivates them to achieve. this is supported by brustin and chavkin’s findings that numerical grading had a “significant positive impact” on clinical students’ motivation.15 whereas rice16 is wholeheartedly in favour of assessing clinic, that is where his support for assessment comes to a halt. he suggests that clinicians “take for granted”17 that clinic should be fully graded and advocates a pass/fail assessment regime as an alternative. in his working paper, rice presents a robust attack on grading, arguing that it is “simple and simplistic mechanism. i suspect that it is attractive to teachers precisely because it is unspecific and impersonal.”18 whilst it may be true to say that a number or letter in isolation can be perceived as impersonal or that it is not particularly helpful to the student in terms of highlighting where they have (under)achieved, rice apparently disregards the vast amount of feedback students receive when undertaking clinical work. unlike other classroom based modules, clinical students will invariably have each piece of work formatively assessed and often appraisals, together with regular supervisor contact, are a feature of the unit. therefore throughout the clinical experience, students should have developed a clear understanding of their strengths, weaknesses and how they are performing generally. their final grade is therefore unlikely to be a surprise given the extensive feedback with which they ought to have been furnished. taking this into consideration rice’s supposition that grading is impersonal and unspecific can be rebutted. it can further be argued that clinic is perhaps the most time intensive element of any law degree in terms of providing feedback and assessment. it should also be remembered that unlike traditional assessment methods, for example essays or problem based questions, with clinic there are no right answers. consequently, it is arguably simpler to grade non clinical modules where you have the joy of an answer guide. it is extremely doubtful that students receive anywhere near the level of feedback outside of clinic and rice’s implication that teachers grade because it is an ‘easy option’ is perhaps more than a little harsh. regarding the assertion that a tangible grade will motivate students, rice argues that the “clinical experience transcends students’ need for incentive.”19 he goes on to say that to “rely on grading as incentive for clinical students does either both of: patronising the students, as incapable of pursuing learning for its and their own sakes, and condemning the teachers, as incapable of inspiring students to do just that.”20 whilst clinic can be the most invigorating and stimulating component of a degree, and may well be the sole motivator for some, it is difficult to suppose that this is true of all students. perhaps where rice goes awry is his submission that we rely on grading as a motivator. is it not more accurate to say that it is a by-product of fully grading a module? when put into context and looking at the demands and constraints on today’s students, rice’s assessment– are grade descriptors the way forward? 57 14 stuckey, r, best practices, op. cit page 239 15 brustin, s. l & chavkin, d. f. (1997) ‘testing the grades: evaluating grading models in clinical legal education,’ 3 clinical law review 299 – 336 at page 314. 16 rice, s. op. cit. 17 ibid. 18 ibid. 19 ibid. 20 ibid. views may be criticised for being idealistic. take for instance the notion that students might be incentivised and motivated by an actual grade, be it numerical or a letter grade, as opposed to a mere pass or fail credit. this argument seems feasible given the highly competitive and somewhat limited availability of training contracts or pupillages on graduation. by way of illustration, in order to qualify as a solicitor in the uk, the traditional route, having undertaken the academic stage of qualification, would be to complete a training contract of 2 years duration. in the uk in 2007 a total of 9,850 students had enrolled on the post graduate legal practice course, the final stage academic requirement which renders a student eligible to undertake a training contract.21 however, in the year up to 31 july 2007 only 6,012 training contracts were registered with the law society.22 there is a clear shortfall in the number of training contracts available and the statistics are rendered yet more depressing when you take into account that graduates from previous years who have not been successful in securing a training contract will also be competing with the latest exiting cohort. if this were not competition enough, in 2007 of those who successfully completed the lpc, over one fifth of students were awarded a distinction and in excess of one quarter achieved a commendation, (the remaining students receiving a pass).23 for a student looking to enter a career in law in a climate where there are a disproportionately more candidates for training contracts than places, can we blame students for being assessment focussed? arguably something has to act as a motivating factor for the student; if assessment promotes student engagement with the learning process is this so deplorable? we also have to consider that in clinic there is often a client involved and if students engage with that client’s problem but also work to the best of their ability, or beyond, to get the grade then that is preferable to a student who does not engage or achieve because it will not be recognised by a grade. rice also claims that grading encourages surface learning as it places “greater value on learned skills and retained knowledge than on new thinking and awareness.”24 whilst this may be true of traditionally taught subjects, clinical students do not have the opportunity to score highly from memorising and regurgitating lecture notes; the clinical pedagogy defies the surface learning approach. furthermore, if the assessment incorporates a reflective element, then, on the contrary, this can be said to promote deep learning as the student will have considered their performance and the role of law from several perspectives. another rationale for grading has its roots in the historical view that clinic is inferior to academic subjects and that to be elevated to the same stature, it must be graded.25 it has often been thought that clinic teaches skills rather than robust legal knowledge and consequently has not always been perceived as equal to non clinical subjects. therefore assessing and fully grading students provides clinic with the same integrity as other degree subjects. whilst this argument may at one time have 58 international journal of clinical legal education july 2009 21 trends in the solicitors’ profession, annual statistical report 2007, the law society at page 37. available at http://www.lawsociety.org.uk/secure/file/174971/e:/te amsite-deployed/documents/templatedata/publications /research%20publications/documents/asr2007report. pdf. (accessed 12 august 2008). 22 ibid, at page 37. 23 ibid, at page 35. 24 rice, op. cit at page 13. 25 brustin, s. l & chavkin, d. f. op. cit at page 301. been significant, the authors feel that given the increasing popularity of clinic, it is perhaps no longer a key concern as it may have been decades ago.26 given the criticisms of assessment, discussed above, the slo focus group was asked whether students should be assessed on a pass/fail basis. there was no support for this suggestion for several reasons. these included the notion that since students would graduate with both a law degree and postgraduate professional qualification, it was more befitting to award a mark as opposed to a pass/fail credit. it was also accepted that assessment can incentivise students to perform better, and since the supervisor’s practising certificate is potentially at stake, not to mention the client’s interests, it was thought that this was somewhat desirable. conclusion it would seem overall that supervisors and students alike prefer the grade descriptors to the list of criteria. for supervisors it was felt that the grade descriptors afforded them some measure of the level that students should be achieving for a particular classification. for students the descriptors provided a solid base to work from and informed them of how they could achieve a better grade in the slo. the grade descriptors also went someway to dispelling the fear held by some students that their grade was subjectively decided by a supervisor. it was agreed that the grade descriptors still required some further amendments and discussion but that they were a welcome move away from the criteria previously used, however the argument to retain an element of subjectivity in what is an individual assessment is still strong. the debate regarding the grading of clinic seems set to rumble on. for the slo, due to the fact that it is a year long, compulsory subject that accounts for 40% of the students fourth year mark, it is our view that it has to be graded. this allows the student to demonstrate in tangible and meaningful terms their achievement in clinic. for clinics that are voluntary and/or not as intensive then there may be a more appropriate way to assess or recognise the student’s contribution. it would seem that there is still a long way to go in the debate over how to grade clinic and whether clinic should be graded. overall our research indicated that, certainly for the slo, grading using grade descriptors meant greater transparency and consistency and made grading less of an ambiguous art and more of a consistent science. assessment– are grade descriptors the way forward? 59 26 in 2006 of the 95 law schools surveyed in the uk, 53% were involved with pro bono activity, 12% intended to become involved in the following academic year and 8% were considering undertaking pro bono activity. this is a noticeable increase on the figures obtained in a similar survey in 2003. see law works students project pro bono – the next generation at page 3. available at http://www.probonogroup.org.uk/lawworks/docs/stu dent%20report%20final.pdf special issue: european network for clinical legal education 6th conference legal education in the next future laura bugatti[footnoteref:1], university of brescia, italy [1: laura bugatti, ph.d., research fellow in comparative law, law department, university of brescia (italy). email: laura.bugatti@unibs.it.] abstract the legal profession is facing a new working environment marked by increasing globalisation, competition, technological advances and deregulation. furthermore, the economic perspective imposed by the european union – which leads us to consider lawyers as business as well as professionals – is having a profound impact on national regulations. nobody would doubt that the intellectual professions have experienced a deep transformation whereas competition rules – originally addressing more traditionally commercial ventures – have begun to penetrate in this different area. in this time of changes, the ‘qualitative entry restrictions’ – taking the form of minimum periods of education (and related educational standards), post-university vocational training and professional examinations – are maintaining a key role: ensuring that only practitioners with appropriate qualifications and competence can supply their legal services in the internal market. the first part of this paper is devoted to analysis of the evolution and changes involving legal education in european countries, adopting a comparative and historical perspective. member states have the right to regulate professional services, and they have the primary responsibility of defining the framework in which professionals operate; therefore, regulation of legal education is, first and foremost, a national matter. nevertheless, a historical overview of the different systems shows that even if the starting points of the different traditions are very distant, sometimes even opposite, there are some common trends in the evolution that are going to create a harmonization in the field of legal education. in particular, every system is going to create a pathway to enter in the legal profession that ensures both academic studies and professional training, combining the theoretical knowledge with practical aspects. the second part of the paper focuses on the new role embraced by the law schools, arguing that the new mission of law schools is, at least in part, to contribute to the creation of legal practitioners. in fact, it seems that the division between exclusively academic theoretical study and post-university vocational training is today unsustainable. considering the law schools’ new obligation to create both ‘theoretic and practical’ scholarship and the consequent shift towards more skills-based legal education, the second part of the paper will be devoted, in particular, to the analysis of the fundamental role that clinical legal education should play in this process of reform. summary: 1. european approach towards professionals: competition and better regulation; 2. entry restrictions and their justification: ensuring the quality of legal services; 3. national legal educational models: a case of fragmentation?; 4. a comparative analysis: there is room for harmonization?; 5. current criticisms and progressive trends in legal education; 6. the role of legal clinics in the present and future educational system 1. european approach towards professionals: competition and better regulation the legal profession is facing a new working environment marked by increasing globalisation, technological advances, competition and deregulation.[footnoteref:2] nobody would doubt that, in the last fifteen years, the european union’s approach towards the intellectual professions has constituted a leading force in the transformation of the legal market and profession in europe. in particular, the european union (eu), starting with the lisbon strategy, recognizing the crucial role played by professionals in the internal market,[footnoteref:3] has begun to advocate the application of competition law even in the professional sector.[footnoteref:4] in order to justify this economic approach, the professions have been classified by european jurisprudence and by commission decisions as undertakings. in fact, the eu has adopted a broad definition of undertaking, encompassing any entity that carries out economic activity – consisting of providing services on the market – regardless of the particular status of the entity and the way in which it is financed.[footnoteref:5] as a consequence, the peculiar attributes which characterize the intellectual professions (e.g. the intellectual, technical or specialized nature and the personal and direct basis on which the services are delivered),[footnoteref:6] as well as the circumstance that they are classified as regulated profession in several member states, cannot be deemed as obstacles to classifying lawyers as business. in accordance with this innovative view, the eu commission has introduced rigorous discussions about the justifications for professional national regulation, affecting both entry requirements and the exercise of the service, and member states have been required to revisit their professional rules, according to the so-called ‘proportionality test’, in order to maintain only restrictions that are justified on public interest grounds. the european call for ‘better regulation’ has revitalized the economic theories surrounding professional regulation, and the idea that some pro-competitive mechanisms can be implemented without detriment to the quality of professional services, even if in some cases the protection of clients and collectively as well as the good governance of the profession may impose the maintenance of some traditional restrictive rules. in fact, according to public interest theory, certain forms of regulation might be considered as a remedy for market failures arising from the particular features of the legal service markets. in particular, the lawyer-client relationship is often characterized by information asymmetry:[footnoteref:7] the professional is always aware of the quality of the service being proposed or delivered; the client, however, has to rely on the professional’s judgement due to his/her inability to ascertain the quality of the legal service and its correspondence to his/her legal needs. in fact, most professional services are considered as ‘credence goods’: as a result, it is often not possible for the client to evaluate the quality of the service, either before or after purchasing the service itself. [2: see also g. pascuzzi, ‘verso l’avvocatura e il notariato’, in b. pasciuta & l. loschiavo (eds.), la formazione del giurista. contributi ad una riflessione (roma trepress, 2018), p 83: ‘quattro fenomeni verificatisi negli ultimi decenni che stanno cambiando le professioni legali: la rivoluzione digitale, l’internazionalizzazione del lavoro, le istanze tese a ‘liberalizzare le professioni’, il favore con il quale il legislatore guarda alle alternative al contenzioso’.] [3: see council of the european union, european council presidency conclusions, 22–23 march 2005, http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/84335.pdf; european parliament, follow-up to the report on competition in professional services, p6_ta(2006)0418, http://www.europarl.europa.eu/sides/getdoc.do?pubref=-//ep//nonsgml+ta+p6-ta-2006-0418+0+doc+pdf+v0//en; european parliament, resolution on market regulations and competition rules for the liberal professions, 2004 oj (c 91e) 126, http://www.europarl.europa.eu/sides/getdoc.do?pubref=-//ep//nonsgml+motion+b5-2003-0432+0+doc+pdf+v0//en; communication from the commission to the council, the european parliament, the european economic and social committee and the committee of the regions, professional services—scope for more reform—follow-up to the report on competition in professional services, com(2004) 83 of 9 february 2004 (sec(2005) 1064): com/2005/0405 final, http://eur-lex.europa.eu/legal-content/en/all/?uri=celex:52005dc0405; commission communication, report on competition in professional services, com/2004/0083 final, http://eur-lex.europa.eu/legal-content/en/all/?uri=celex:52004dc0083.] [4: concerning the european attempt to apply competition law to professional services, see: report on the economic impact of liberal professionals in different member states, invitation to tender, open procedure, 2001; i. paterson, m. fink & a. ogus, economic impact of regulation in the field of the liberal professions; european commission, dg competition, stocktaking exercise on regulation of professional service: overview of regulation in the new eu member states, comp/d3/mk/d(2004), http://ec.europa.eu/competition/sectors/professional_services/studies/overview_of_regulation_in_the_eu_professions.pdf; european commission, dg competition, invitation to comment: regulation in liberal professions and its effects: summary of responses, 2003, http://ec.europa.eu/competition/sectors/professional_services/studies/summary_of_consultation_responses.pdf; commission communication, report on competition in professional services; commission communication to the european parliament, the council, the european economic and social committee and the committee of the regions, upgrading the single market: more opportunities for people and business, com(2015)550 final; see also the european parliament’s intervention 2015/2354(ini); communication from the commission to the european parliament, the council, the european economic and social committee and the committee of the regions on reform, recommendations for regulation in professional services, {swd(2016) 436 final}, com(2016)820 final, http://ec.europa.eu/transparency/regdoc/?fuseaction=list&coteid=1&year=2016&number=820&version=all&language=en; communication from the commission to the european parliament, the council, and the european economic and social committee, evaluating national regulations on access to profession, com(2013)676, http://eur-lex.europa.eu/legal-content/en/txt/?uri=celex%3a52013dc0676; european commission, proposal for a directive of the european parliament and of the council on a proportionality test before adoption of new regulation of professions, com(2016) 822, https://eur-lex.europa.eu/legal-content/en/txt/?uri=com:2016:0822:fin; directive (eu) 2018/958 of the european parliament and of the council of 28 june 2018 on a proportionality test before adoption of new regulation of professions, in gu l 173 9.7.2018, pp 25–34, https://eur-lex.europa.eu/legal-content/en/txt/?toc=oj%3al%3a2018%3a173%3atoc&uri=uriserv%3aoj.l_.2018.173.01.0025.01.eng. a similar trend towards deregulation was first endorsed in other jurisdictions, such as the us and australia and, at the international level, by the organisation for economic co-operation and development (oecd). cf. oecd, competition policy and the professions, 1985; oecd, competition in professional services, daffe/clp(2000)2, http://www.oecd.org/regreform/sectors/1920231.pdf; oecd, daf/comp(2007)39. with regards to the us experience: goldfarb v. state bar of virginia, 421 u.s. 773 (1975); bates v. state bar of arizona, 433 u.s. 350 (1977); c.j. gawley, ‘protecting professionals from competition: the necessity of a limited antitrust exemption for professionals’, in 47. s.d. l. rev. (south dakota law review) 2002, p 233; d. vázquez albert, ‘competition law and professional practice’, in 11. ilsa j. int’l & comp. l. (ilsa journal of international & comparative law) 2005, p 555. more generally, see l.s. terry, ‘the european commission project regarding competition in professional services’, in northwestern journal of international law & business 2009, p 1.] [5: case c-41/90, höfner ed elser c. macrotron, ecli:eu:c:1991:161; case 118/85, commissione c. italia, ecli:eu:c:2002:36. l. scudiero, la nozione di impresa nella giurisprudenza della corte di giustizia, in iv. foro it. (foro italiano) 1994, p 113; v. afferni, ‘la nozione di impresa comunitaria’, in f. galgano, trattato di diritto commerciale e diritto pubblico dell’economia, ii (padova: cedam 1978), p 134.] [6: 95/188/ec: commission decision of 30 january 1995 relating to a proceeding under art. 85 of the ec treaty (iv/33.686 – coapi) oj l 122, 02/06/1995, 0037–0050.] [7: b. arrunada, ‘the economics of notaries’, in 3. eur. j. law econ. (european journal of law and economics) 1996, p 5; robert g. evans & michael j. trebilcock, lawyers and the consumer interest (toronto: butterworths 1982); m. faure, j. finsinger, j. siegers & r. van den bergh (eds.), regulation of professions (antwerpen: maklu 1993; r. c.o. matthews, ‘the economics of professional ethics: should the professions be more like businesses?’, in 101. econ. j. (economic journal) 1991, p 737; f. h. stephen, ‘the market failure justification for the regulation of professional service markets and the characteristics of consumers’ and r. van den bergh, ‘towards efficient self-regulation in markets for professional services’ in c.d. ehlermann and i. atanasiu, european competition law annual 2004: the relationship between competition law and the (liberal) professions (oxford and portland, oregon: hart publishing 2006), p 143 & p 155.] as a consequence, the information asymmetry may give rise to quality deterioration resulting from adverse selection:[footnoteref:8] if clients cannot judge the different value of professionals’ services, their willingness to pay might be hampered; conversely, if lower fees become the ‘average prices’ of legal performance, the most qualified lawyers are encouraged to leave the market, as long as their behavioural traits and their efforts are not recognized and properly remunerated. moreover, the information gap might lead to professionals’ opportunistic behaviours, including the overvaluing of services in order to charge higher fees, the delivery of services at higher prices, as well as the provision of additional or totally unneeded services (the so-called ‘moral hazard’ problem).[footnoteref:9] [8: g. akerlof, ‘the market for lemons: quality uncertainty and the market mechanism’, in q. j. econ (the quarterly journal of economics) 1970, p 488; i. paterson, m. fink & a. ogus, economic impact of regulation in the field of the liberal professions in different member states: regulation of professional services (european network of economic policy research institutes working paper 52/february 2007), p 17, https://www.ceps.eu/system/files/book/1455.pdf; r. spiegler, ‘the market for quacks’, in 76. rev. econ. stud. (the review of economic studies) 2006, p 1113; h. e. leland, ‘quacks, lemons, and licensing: a theory of minimum quality standards’, in 87. journal of political economy 1979, p 1328.] [9: f. h. stephen & j. h. love, ‘regulation of the legal profession’ in b. bouckaert & g. de geest (eds.), encyclopedia of law and economics, volume iii: the regulation of contracts (cheltenham: edward elgar 2000), p 989; r. van den bergh & y. montangie, ‘competition in professional services markets: are latin notaries different?’, in 2. journal of competition law & economics 2006, p (189) at 193–194; e. shinnick, f. bruinsma & c. parker, ‘aspects of regulatory reform in the legal profession: australia, ireland and the netherlands’, in 10. int’l j. legal prof. (international journal of the legal profession) 2003, p 237.] in addition, legal services serve public goals such as the good administration of justice and a well-functioning judicial system; for this reason, the quality of the legal performance might have a severe impact, not only on the single client situation, but also on society as a whole: on the one hand, legal services of insufficient quality might generate negative externalities, damaging both clients and third parties involved in the justice system; on the other hand, good-quality legal services generate positive externalities, contributing to ensure the protection of the client’s rights, as well as to safeguard the correct administration of justice in the interest of the community. as a result, among the rationales of professional regulation, there is the need to avoid negative externalities while protecting the positive ones.[footnoteref:10] [10: r.l n.m. graham, legal ethics: theories, cases, and professional regulation (3rd edn., toronto: emond publishing 2014).] the public interest explanations may constitute, therefore, the premise and the justification for the maintenance of a number of professional regulations at the national level. nevertheless, not all the restrictive rules may be justified on the basis of the public interest arguments.[footnoteref:11] the equilibrium between the preservation of traditional restrictive rules and the introduction of pro-competition mechanisms is not always easy to find. [11: moreover, the ‘public interest theories of regulation are challenged by private interest theories’ (r. van den bergh, towards better regulation of the legal professions in the european union (rile working paper series n. 2008/7 2007). several economists are skeptical about the benefits of professional restrictive rules, arguing that professional regulation is used to serve mainly the interests of the legal profession and can be better explained by rent-seeking behavior, effective lobbying and regulatory capture. see j. a. kay, ‘the forms of regulation’, in a. seldon (ed.), financial regulation or over-regulation (london: institute for economic affairs 1988), p 3342. the origin of this approach may be traced in smith’s view, who defined self-regulatory occupational groups as natural institutions for ‘conspiracy against the public’ and ‘contrivance to raise prices’. see, also, a. smith, ‘of wages and profit in the different employments of labour and stock, part ii: inequalities occasioned by the policy of europe’, in a. smith, an inquiry into the nature and causes of the wealth of nations (1776 – new york: metalibri 2007), p 97.] 2. entry restrictions and their justification: ensuring the quality of legal services qualification and entry requirements (encompassing academic education and training as well as professional examinations) are a basic component of the regulation of lawyers. this is not surprising, considering the fact that the legal profession is classified as a regulated profession in almost all member states.[footnoteref:12] nevertheless, according to the commission, with the recent initiatives aiming at giving an economic perspective to the regulation of the liberal professions, the justification of this kind of restriction has been questioned, in order to determine whether the qualitative entry restrictions are effectively justified in the name of public interest, consumer protection and quality of service or, contrariwise, may excessively restrict competition, promoting only lawyers’ interests without yielding corresponding benefits to the society. [12: as it is stated in article 3.1., lett. a, 2005/36/ce, the regulated profession is a ‘professional activity or group of professional activities, access to which, the pursuit of which, or one of the modes of pursuit of which is subject, directly or indirectly, by virtue of legislative, regulatory or administrative provisions to the possession of specific professional qualifications; in particular, the use of a professional title limited by legislative, regulatory or administrative provisions to holders of a given professional qualification shall constitute a mode of pursuit. where the first sentence of this definition does not apply, a profession referred to in paragraph 2 shall be treated as a regulated profession’ (directive 2005/36/ec of the european parliament and of the council of 7 september 2005 on the recognition of professional qualifications, in official journal of the european union, l 255, 30.9.2005, p 22–142).] even if empirical evidence on this aspect is limited and fragmentary,[footnoteref:13] it has been argued that ex ante or input regulation could be a valuable tool to guarantee a high level of quality of legal services, in the clients’ and the public’s interest. when a profession is regulated, only professionals who meet certain requirements and possess the appropriate qualifications are allowed to offer their services in the market. [13: see f. h. stephen & j. h. love, ‘regulation of the legal profession’, cit., p 989; r. van den bergh & y. montangie, ‘competition in professional services markets: are latin notaries different?’, cit., p 193–194.] as has been noted elsewhere, ‘licensing thus attempts to influence the quality of the service before its provision (ex ante) and controls the input (mainly education and/or training) rather than the output. the underlying assumption is that there is a strong complementary relationship between investments in human capital (input) and the quality of the service provided.’[footnoteref:14] as a consequence, when professionals who do not have the required qualifications and competence are excluded from the market, the overall quality of the legal services performed will of necessity be higher. for this reason, the input or ex ante regulation might be considered proportionate to the goal of ensuring professional quality: it is justified by public interest arguments, working both as a remedy for market failures[footnoteref:15] and as a deterrence to moral hazard.[footnoteref:16] [14: t. heremans, professional services in the eu internal market: quality regulation and self-regulation (hart publishing, 2012), spec. p 4. ] [15: see h. e. leland, ‘quacks, lemons, and licensing: a theory of minimum quality standards’, cit.] [16: c. shapiro, ‘investment, moral hazard, and occupational licensing’, 53. the review of economic studies 1986, p 843.] 3. national legal educational models: a case of fragmentation? member states have the right to regulate professional services and the primary responsibility of defining the framework in which professionals operate; therefore, the regulation of legal education is also, first and foremost, a national matter. for that reason, it is not surprising to find many differences among the national legal education models existing in europe: each member state has its own education and training pathway to be followed in order to become a lawyer, and this pathway varies from one country to another. this heterogeneous situation can turn into a potential obstacle to having a common level of the quality of services offered in the internal market. among the main criteria differing from member state to member state, there are: a) the duration of the licensing procedure, with a range from around six to almost nine years (like in slovenia);[footnoteref:17] b) the intensity of the entry controls: some member states impose an ‘incoming and outgoing’ selection in order to become a lawyer. in particular, in order to start vocational training in law, graduates may be required to pass an exam at the end of their university studies, and a second exam has to be taken at the end of the traineeship for becoming a lawyer. for example, a dual bar exam is required by the german regulation,[footnoteref:18] as well as by the polish one.[footnoteref:19] on the other side, some other member states, like italy, impose one single entry selection, i.e. an exam at the end of the traineeship. in some cases the examination is taken before the end of the training (this is, for example, the case of belgian regulation). in some jurisdictions, periodic exams during the training are compulsory (like in poland). in some other member states, before or during the professional traineeship, additional training, vocational courses, notably on matters not covered at all in the university curriculum, such as professional ethics, are required; c) the connection with the educational system imposed for other legal professions: the english and the german systems might be seen as the two extremes – on one side, the uk imposes separate educational and professional paths to the two branches of the legal profession, i.e. barrister and solicitors; on the other side, the german model requires a common education for all the traditional juridical professions in order to create the so-called einheitsjurist, a jurist who is able to work as a judge as well as a lawyer; d) the importance reserved to the continuous professional development: although it is mandatory in the majority of member states, in some of them it remains on voluntary basis.[footnoteref:20] [17: art. 25 of the bar act, the official gazette of the republic of slovenia, no. 18-817/1993, dated 9 april 1993, official gazette of the republic of slovenia, no. 24-1465/1996, 10 may 1996; decision by the constitutional court, official gazette of the republic of slovenia, no. 24-1455/2001, 5 april 2001, official gazette of the republic of slovenia, no. 54/08, 2 june 2008, official gazette of the republic of slovenia, no. 35/09, 8 may 2009.] [18: for more information concerning the licensing procedure in germany, see bundesrechtsanwaltsordnung (brao), arts. 4–17; see also the gesetz zur reform der juristenausbildung vom 11.07.2002, bundesgesetzblatt 2002 teil i nr. 48, 2592; j. riedel, ‘the reform of legal education in germany’, in 0. eur. j. legal educ. (european journal of legal education) 2001, p (3) at 3–10; a. keilmann, ‘the einheitsjurist: a german phenomenon’, in 7. germ. law jour. (german law journal) 2006, p (293) at 297–298. ] [19: for more information concerning the polish formal requirement to be admitted to the bar, see a. bodnar & d. bychawska, the legal profession in poland, 2009, https://www.osce.org/odihr/36308?download=true.] [20: this is the case, for example, in the czech republic, greece, malta, slovakia, slovenia and spain.] this brief excursus on the main traits of the actual national educational models leads us to the conclusion that it is not possible to infer the existence of a common european model of delivering legal education and training. however, a historical comparative analysis can offer a different point of view on this topic that allows us to see an increasing convergence in legal education in europe, especially as regards the continental civil law tradition. 4. a comparative analysis: is there room for harmonization? legal education in continental europe has long since been associated with university education.[footnoteref:21] the italian tradition might be taken as a paradigm. legal education has its origin in the middle ages, when the first university was founded in bologna. the didactic method forged by the school of bologna in 1088 was designed for legal scholars who needed to find and teach the ‘right’ solutions.[footnoteref:22] law was taught as a model or structure, completely cut off from any practical consideration – such as the needs of the client or the means of resolving disputes. such a conception has influenced both the nature of the teaching of law, giving it a theory-based and conceptual character, and the essence of european continental law itself. [21: ‘l'università fu la base comune del poderoso ceto internazionale dei giuristi’: p. g. monateri & a. somma, ‘il modello di civil law’, in a. procida mirabelli di lauro (ed.), sistemi giuridici comparati (torino, 2009), p 33.] [22: see d. rené & j. spinosi camille, i grandi sistemi giuridici contemporanei (5 ed, cedam 2004), p 33: ‘the law, as the moral, is a “sollen” (what we should do) and not a “sein” (what we do in practice)’.] during the napoleonic period this framework shifted a little in favour of the professionalization of a ‘legal class’ and ‘a new socialization based upon competency’.[footnoteref:23] during the eighteenth century, training courses and examinations were gradually established. furthermore, successive law reforms introduced post-university traineeships and exams as requirements for entry to the legal professions. at the end of the nineteenth century, the legal education system started to be articulated in the law degree, a period of training followed by a final test. it has been said that ‘the application of the law to practical cases requires a very particular ability that can only be gained through practice’.[footnoteref:24] [23: see m. malatesta, ‘l'ordine professionale, ovvero l'espansione del paradigma avvocatizio’, in 3. parolechiave 1995, p 270. see also s. parini vincenti, ‘ad auxilium vocatus. studi sul praticantato da napoleone alla legge professionale del 1874: l’esperienza normativa’, in a. padoa schioppa (ed.), avvocati e avvocatura nell'italia dell'ottocento (bologna, 2009), p 59 ff. 
] [24: see a. bianchi, sull'esercizio delle professioni di avvocato e procuratore. testo e commento della legge 8 giugno 1874 (torino, 1886), p 99.] as a consequence, in continental europe, and in the civil law tradition, despite the specifically academic roots, we have seen over the centuries the emergence and consolidation of a process of professionalization that has ensured that professional bodies retain ultimate regulatory control over access to professional titles. contrary to the continental tradition, english legal education and training was born as a product of the legal profession and the inns of court.[footnoteref:25] in the beginning, university legal education in england was almost inexistent. as a matter of fact, the modern legal education system in england and wales has been shaped in part by a series of reforms that began only by the mid-nineteenth century. from the mid-twentieth century, some government reports[footnoteref:26] started to criticize the state of legal education, warning of the poor standards in legal education, recognizing the inefficiency of the system, the need for reform of legal education and the possibility of introducing an entry method that would evaluate not only the practical training but also the university studies. in 1971, the ormrod report[footnoteref:27] advocated the introduction of a three-stage model of legal education: an academic stage, a professional stage and a continuing stage. the normal academic stage has become the law degree, or its equivalent. in the wake of the ormrod report, the law degree was confirmed as the standard mode of entry into the profession also by the reports that followed[footnoteref:28] (almost until the solicitors qualifying exam (sqe) announced reform – see infra). [25: concerning the evolution of legal education in uk, see: c. n. gregory, ‘a movement in english legal education’, in 10 harvard law review 1897, p 418 ff.; r. m. stein, ‘the path of legal education from edward i to langdell: a history of insular reaction’, in 57. chi. kent l. rev. 1981, p 429; a. boon & j. webb, ‘legal education and training in england and wales: back to the future?’, in 58. journal of legal education 2008, p 79; n. picardi and r. martino (eds.), l'educazione giuridica (bari, 2008) and g. morley, ‘legal education in england and wales’, in n. picardi & r. martino (eds.), l'educazione giuridica, cit., 365 ss.] [26: see, in particular: report of the legal education committee, cmd. 4663 (london, hmso, 1934) (‘atkin committee’); report of the committee appointed by the prime minister under the chairmanship of lord robbins, cmnd. 2154 (london, hmso, 1963) (‘robbins report’); report of the committee on legal education, cmnd. 4595 (london, hmso, 1971) (‘ormrod report’); royal commission on legal services, final report, cm. 7648 (london, hmso, 1979) (‘benson report’); a time for change: report of the committee on the future of the legal profession (london, general council of the bar/the law society, 1988) (‘marre committee’); lord chancellor’s advisory committee on legal education and conduct, first report on legal education and training (london, aclec, 1996) (‘aclec’); review of the regulatory framework for legal services in england and wales, 2004 (‘clementi report’); legal education and training review, the future of legal services education and training regulation in england and wales, june 2013, http://www.letr.org.uk/the-report.] [27: report of the committee on legal education, cit.] [28: see legal education and training review, the future of legal services education and training regulation in england and wales, cit., p xiv: ‘a number of recommendations are made in respect of the qualifying law degree (qld) and graduate diploma in law (gdl). these continue to provide an important pathway into the legal services sector for a range of authorised persons, and thus constitute an important foundation for professional training.’ ] as a consequence, in the common law tradition, we have witnessed an opposite evolution compared to the civil law tradition, with the emergence and consolidation of law as an academic discipline, despite its origins being essentially anchored to the professional world. the historical evolution of the different macro-traditions of legal education gives evidence that even if the starting points are very distant, even opposite, there are some common trends in the evolution that harmonize european legal education. in particular, every system has created over the centuries a pathway to enter the legal profession that ensures both the academic education and the professional training/practical experience, combining the theoretical knowledge with practical aspects. moreover, these profound changes of the educational systems have led, in civil law as well as in the common law tradition, to the construction of different stages of education and training which have created distinct spheres of influence for the different stakeholders. usually law schools, as liberal institutions, retain as primary goals the promotion and production of legal culture, the transmission of legal knowledge and the development of students’ analytical and critical reasoning skills.[footnoteref:29] on the other hand, bar associations have the mission to equip graduates with the understanding and acquisition of practical legal skills and competence, and potentially legal ethics, throughout vocational stages, traineeship and/or exam(s). [29: even if the freedom of universities sometimes encountered some constraints, as in the case of the several core subjects of the english gdl imposed by the professional bodies.] 5. current criticisms and progressive trends in legal education nevertheless, as history explains, the relationship among different stakeholders is not a stable one, and also, the three-stage model – university degree / vocational stage and training/exam(s) – is just an artificial division. what is more constant are the critics of the legal educational system, the rethinking of approaches to teaching and learning law, in theory and in practice, and ways to test knowledge, skills and competence, also taking into consideration the ongoing changes involving the legal profession.[footnoteref:30] as recently noted, ‘legal education has come under fire from all quarters, almost everywhere in the world. legal education is criticized in many different contexts, by a variety of actors, and for a great number of reasons.’[footnoteref:31] [30: see s. cassese, ‘legal education under fire’, in 1. european review of private law (eur. rev. priv. law.) 2017, p (143) at 144 and 145: the author considering the french model underlined that: ‘teaching methods and materials are criticized as being too dogmatic and doctrinal, closed to the social sciences, and oriented towards the study of law as set out in books rather than to the study of law in action’ (c. jamin, ‘l’enseignement du droit à sciences po: autour de la polémique suscitée par l’arreté du 21 mars 2007’, in jurisprudence: revue critique 2010, p 125 ff.; c. jamin, la cuisine du droit: l’école de droit de sciences po: une expérimentation française (paris: l.g.d.j. 2012); m. vogliotti, ‘l’urgence de la question pédagogique pour le droit postmoderne’, 72. revue interdisciplinaire d'études juridiques (riej) 2014, p 73 ff.; c. jamin & m. xifaras, ‘de la vocation des facultés de droit (françaises) de notre temps pour la science et l’enseignement’, riej 2014, p 107 ff.; c. jamin & m. xifaras, ‘retour sur la “critique intellectuelle” des facultés de droit’, 4. la semaine juridique (sj) 2015, p 155 ff.; r. sefton-green, ‘démoulages’: du carcan de l’enseignement du droit vers une éducation juridique, société de législation comparée, paris 2015); referring to the situation of legal education in germany affirmed that: ‘german experts too complain that doctrinal subjects are central in legal education, that legal education does not focus sufficiently on the application, active creation and implementation of the law, that law teaching does not pay enough attention to the european legal order and to the comparative approach, that academic reflection prevails over practice-oriented studies, and that there is not enough interdisciplinary cooperation’ (wissenschaftsrat, prospects of legal scholarship in germany. current situation, analyses, recommendations, hamburg 9 november 2012). see also a. von bogdandy, ‘le sfide della scienza giuridica nello spazio giuridico europeo,’ 2. il diritto dell’unione europea 2012, p 22). concerning the critics of the english system, the author, referring to the letr report, recalled as main reasons for critique: ‘insufficient assurance of a consistent quality of outcomes and standards of assessment; limits on the acceptable forms of professional training; knowledge and skills gaps in respect of legal values and professional ethics, communication, management skills and equality and diversity awareness; limits on horizontal and vertical mobility; increasing cost barriers affecting access to academic, professional and workplace training, particularly for solicitors and barristers in non-commercial practice; and the existence of limitations on the capacity for coherent evidence-based policymaking’ (legal education and training review, the future of legal services education and training regulation in england and wales, cit.).] [31: see s. cassese, ‘legal education under fire’, cit., p 143.] this sense of dissatisfaction with the way in which legal education is structured and delivered has led in england and wales to the shocking announcement by the solicitors regulation authority (hereafter sra) that it is going to revise the pathway to qualify as a solicitor. currently, would-be solicitors are required to complete a qualifying law degree (qld) or law conversion course at university (gdl), a one-year vocational course, the legal practice course (lpc) and, finally, two years of supervised training (training contract) in order to qualify as a solicitor. the three-stage structure is similar to the educational model designed for the would-be barrister: graduates (with a qld or a gdl) are required to join one of the inns of court, undertake one-year full-time course, the bar professional training course, be called to the bar and complete a recognized period of training under the supervision of an experienced barrister, the pupillage.[footnoteref:32]  [32: new training requirements for the bar are expected to come into effect in early 2019 (subject to legal services board approval); nevertheless, the three components of education and training (the academic component, the vocational component and the work-based learning component) will be maintained, even if delivered through one of four approved training pathways; for more information on the future bar training (fbt), see https://www.barstandardsboard.org.uk/qualifying-as-a-barrister/future-requirements/; bar standards board, ‘bsb policy statement on bar training’ (2017) www.barstandardsboard.org.uk/media/1825162/032317_fbt_-_policy_statement_version_for_publication.pdf for more information concerning the legal education system in england and wales: a. boon & j. webb, ‘legal education and training in england and wales: back to the future?’, cit., p 79; d. nitti, ‘la professione forense in inghilterra’, in a. berlinguer, la professione forense. modelli a confronto (milano, 2008), p 97 ff.; c. gilligan, la formazione dell'avvocato in inghilterra e galles: qualità professionale, deontologia e mercato, in g. alpa and a. mariani marini (eds.), la formazione dell'avvocato in europa (pisa, 2009), p 113 ff; b. nascimbene, la professione forense nell’unione europea (milano 2010), p 233 ff; r. m. stein, the path of legal education from edward i to langdell: a history of insular reaction, cit., p 429; d. nitti, ‘come cambia la professione forense inglese: spunti per una comparazione’, in contratto e impresa/europa 2006, p 280 ff.; r. crespi, ‘le professioni legali in inghilterra e galles da edoardo i al court and legal service act’, in le carte e la storia, 2005, p 126; p. purpidge, ‘la formazione professionale in inghilterra e nel galles’, in rass. forense 1995, p 399.] nevertheless, the sra has announced that from 2021, as part of a new approach to qualifying as a solicitor in england and wales, it will abandon the qualifying law degree (qld) and the legal practice course (lpc), in favour of a centralized examinations system, the solicitors qualifying exam (sqe).[footnoteref:33] in particular, the announced sqe reform will require would-be solicitors to undergo a centralized exam regulated by the sra, consisting of two parts: the first one, testing legal knowledge through multiple-choice questions; the second one, consisting of skills assessments. the candidates will also have to undertake 24 months of practical training (qualifying work experience – qwe). [33: see sra, statement of solicitors competence (march 2015), https://www.sra.org.uk/solicitors/competence-statement.page; sra, training for tomorrow: assessing competence, consultation paper (7 december 2015), https://www.sra.org.uk/sra/consultations/t4t-assessing-competence.page; sra, a new route to qualification: the solicitors qualifying examination, consultation paper (25 april 2017), https://www.sra.org.uk/sra/consultations/solicitors-qualifying-examination.page; sra, a new route to qualification: new regulations, consultation paper (15 november 2017), https://www.sra.org.uk/sra/consultations/new-regulations.page. for comments on the sra initiative, see r. fletcher, ‘legal education and proposed regulation of the legal profession in england and wales: a transformation or a tragedy?’, in 50. the law teacher 2016, p 371; e. hall, ‘notes on the sra report of the consultation on the solicitors qualifying exam: “comment is free, but facts are sacred” ’, in 51. the law teacher 2017, p 364; e. fry & r. wakeford, ‘can we really have confidence in a centralised solicitors qualifying exam? the example of the qualified lawyers transfer scheme’, in 51. the law teacher 2017, p 98; c. james & j. koo, ‘the eu law “core” module: surviving the perfect storm of brexit and the sqe’, in 52. the law teacher 2018, p 68; j. gibbons, ‘policy recontextualisation: the proposed introduction of a multiple-choice test for the entry-level assessment of the legal knowledge of prospective solicitors in england and wales, and the potential effect on university-level legal education’, in 24 international journal of the legal profession 2017, p 227; m. davies, ‘changes to the training of english and welsh lawyers: implications for the future of university law schools’ in 52. the law teacher 2018, p 100.] the radical changes announced by the sra, which undermined the validity of the traditional three-stage model, are expected to have a profound effect on the entire english model of legal education. because a law degree will not be mandatory in order to sit the sqe, the only choice for the law schools will be between opting in or opting out of sqe preparation. they could, in other words, keep a distance from the interest of the legal profession and provide a more liberal and theoretical education; or – on the contrary – they might move further on, in the direction of professional and vocational courses, in order to reach the standards required to embrace the sqe.[footnoteref:34] both choices have potentially significant and obvious consequences. the replacement pathway to qualify as a solicitor in england and wales offered by the sra, which totally underestimates the role of university and pushes towards a pure apprenticeship model, seems to remove the english system from the harmonized model of legal education described before.[footnoteref:35] [34: ‘with regard to the demise of qlds and gdls, for law schools which choose to continue to offer degree courses or similar which prepare students for the sqe, this will be the first time for most that they have faced an externally devised syllabus and externally set and marked assessments with regard to this aspect of their activity. for those institutions which choose to opt out and, perhaps, use the introduction of the sqe as an opportunity to move their law degrees away from their current professional accreditation focus, this will be the first time in decades that they have faced a significant market test to determine how many students will choose to study law without a professional accreditation attractor’: m. davies, ‘changes to the training of english and welsh lawyers: implications for the future of university law schools’, cit., p (100) at 101.] [35: even if the law degree maintains its validity with reference to the pathway to qualify as a barrister in england and wales, it is well known that the percentage of graduates who become barristers is very low compared to the percentage of the students who qualify as solicitors. in 2017, the total barristers in practice were 16,435 (see bar standards board, practising barrister statistics, https://www.barstandardsboard.org.uk/media-centre/research-and-statistics/statistics/practising-barrister-statistics/); while ‘at 31 july 2017, there were 139,624 solicitors with practising certificates (pc) and 181,968 individuals in total on the roll of solicitors’ (see the law society, annual statistics report 2017, https://www.lawsociety.org.uk/support-services/research-trends/annual-statistics-report-2017/). ] in continental europe, the criticisms concerning the current educational system, as well as the innovations involving the professions in the recent years, are still generating some significant changes (even if the impact is not comparable with the english one). over the past century, despite the growing professionalization of the legal class and the increased importance of the bar association in the legal educational process, continental law schools, reaffirming their own role, have continued to uphold as their exclusive aims the promotion and production of legal culture, maintaining in conformity with such objectives an essentially theoretic teaching methodology.[footnoteref:36] nevertheless, a number of harsh criticisms levelled against academia consistently over the past 100 years are signs of a disconnect between the law school and the wider society. is there a need for an education that insists on keeping theory and practice apart? [36: see m. cappelletti, j. h. merryman & j. m. perillo, the italian legal system: an introduction (stanford, 1967), p 89: the authors, referring to italian academia, affirmed that law schools ‘are not concerned with techniques of problem-solving, but with the inculcation of fundamental concepts and principles’. 
] such criticism is still echoed today in university classrooms and, although it does not appear sufficiently supported, in an ‘atmosphere of dated paralysis’[footnoteref:37] that has perhaps always characterized academia and other institutions under pressure to change, it seems to dictate current (and increasingly noticeable) progressive trends. recently, in fact there have been attempts directed at integrating practical components into the curricula, such as some law school initiatives targeted at introducing legal skills courses and legal clinics.[footnoteref:38] whilst far from the norm, such developments are on the increase across continental europe. the creation of the clinic network encle (european network for clinical legal education) evidences that.[footnoteref:39] one may speculate as to the driving forces, but almost certainly this includes the aim of developing a student’s knowledge and practical skills, both of which are required of a professional.[footnoteref:40] [37: see l. caiani, problemi dell'università italiana (milano, 1955), p 7. 
] [38: in relation to the recent development of clinical legal education in western europe, defined as “the last holdout in the worldwide acceptance of clinical legal education” (r. wilson, ‘western europe: last holdout in the worldwide acceptance of clinical legal education – part i/ii’, in 10. german law journal 2009, pp 823–846), see c. bartoli, ‘‘legal clinics in europe: for a commitment of higher education in social justice’, in 1. diritto e questioni pubbliche 2016; id., ‘the italian legal clinics movement: data and prospects’, in 2. international journal of clinical legal education 2015, p 22; d. blazquez-martin, ‘the bologna process and the future of clinical education in europe: a view from spain’ in f.s. bloch (ed.), the global clinical movement. educating lawyers for social justice (oxford, 2011) 121; h. olàsolo, ‘legal clinics in continental western europe: the approach of the utrecht legal clinic on conflict, human rights, and international justice’, in 104. american society of international law 2010, p 98; jan-gero alexander hannemann & f. czernicki, ‘eine rechtsvergleichende analyse der “clinical legal education” – studentische rechtsberatung in polen und deutschland’, in 2. german journal of legal education 2015, p 27. with regards to the brescia legal clinic, see c. amato, ‘developing strategies for academic and financial sustainability: the brescia legal clinic’s experience’, in e. poillot (ed.), l’enseignement clinic du droit: expériences croisées et perspective pratique (luxembourg: larcier, 2014). in relation to the recent development of clinical legal education in central and eastern europe, see, above all, m. berbec-rostas, a. gutnikov & b. mamysloswska-gabrysiak, ‘clinical legal education in central and eastern europe: selected case studies’ in f.s. bloch (ed.), the global clinical movement. educating lawyers for social justice, cit., p 53.] [39: see: www.encle.org.] [40: the legal studies in several civil law jurisdictions have come under criticism thus their exclusive theoretical nature and the need for more practical elements in the curricula has been suggested; consequently, they have had similar legal studies’ development, even maintaining their traditional and historical features; see, as an example, the czech republic experience: ‘the czech republic, which can be perceived as a bridge between western and eastern europe and shares many common features with countries from both parts of europe. the legal education was traditionally very theoretical, with occasional discussions about the lack of practical elements. in the 1990s, there were several clinical projects taking place at different law schools, but none of them was particularly successful (…). i have the impression that the recent intensive development of legal clinics in the czech republic (and also in other european countries) derives from understanding that traditional legal education was inefficient and did not focus enough on skills and professional values’: m. tomoszek, ‘the growth of legal clinics in europe – faith and hope, or evidence and hard work?’, in 21. international journal of clinical legal education 2014, p 99.] 6. the role of clinical legal education in the present and future educational system in spite of cultural differences among different national models of legal education on the continent, the specific requirements imposed by the national law curricula and the different relationship between universities and the relevant professional bodies, a new harmonized trend is emerging in continental europe: a common and renewed approach to legal education begs a rethink of the curriculum content, embracing knowledge, skills and values.[footnoteref:41] [41: ‘sapere, saper fare e saper essere: è questa la trilogia sulla quale si struttura il mestiere dell’avvocato’: g. pascuzzi, ‘how to become lawyers and able to do so: teaching the ethics of the legal profession through narrative’, research paper no. 11, 2012, http://eprints.biblio.unitn.it/4003/1/11._pascuzzi.pdf. ] in this latest process of reform, the mission of law schools and the mission of post-university training associations (bar associations, professional schools and in some instances universities), while maintaining their own specificities, tend to converge: they each provide knowledge, skills, competences, ability for a defined market; students are required to master theoretical legal concepts as well as to meet standards of technical competency, in order to understand law in its operational context and aspire to be future ethical and competent professionals. experiential learning, in general, and clinical legal education, in particular, may constitute valuable tools for tackling the challenges and meet the needs of the current and renewed educational context. firstly, clinical legal education is a pedagogical means that permits the application of theory to real or realistic (in case of simulation) cases in order to understand the law in practice: students gain the opportunity to discover the law in its operational context, to discuss the meaning of the rules, to question the needs of reform as well as to appreciate the role of the law in society.[footnoteref:42] [42: c. amato, ‘experiential learning from the continental viewpoint: if the cap fits…’, in r. grimes (ed.), re-thinking legal education under the civil and common law: a road map for constructive change (routledge, 2017).] moreover, the clinical method provides the understanding and acquisition of lawyering skills (such as fact-finding, clients interviewing, legal drafting, adr methods and so on) as well as of the development of professional responsibility and wider ethical values. students are required to work as legal professionals; in other words, they have to act with competence and ability in the interest of the client and become aware of the social relevance of their role, acting accordingly, assuming responsibility for their behaviour and facing the consequences of their actions. furthermore, unlike what happens in real life, universities are a ‘place where the learning can be guided, can be structured, can be taught rather than merely learned’.[footnoteref:43] law schools represent a privileged context in which, under the competent supervision of academics and professionals, students can experience the power of reflective learning. students are required to move between action and reflection, visit and revisit the experience, thinking about what has been done, deepening the reasons underpinning actions, wondering how else they could have acted, trying to act differently if needed and appreciate the new consequences. in this way, the reflection also serves as a serious practice of learning. [43: j. e. moliterno, ‘experience and legal ethics teaching’, faculty publications. paper 930, 2001, http://scholarship.law.wm.edu/facpubs/930.] secondly, clinical legal education constitutes a unique opportunity to build links with the practicing profession and empower the dialogue between law schools and professional bar associations. for instance, the university of brescia’s law clinic[footnoteref:44] (the clinic in which i have the privilege of working) has created over the years a strong collaboration with the local bar association and lawyers: the local bar association is permanently involved in the organization of the course and present in the academic committee; moreover, approximately ten local lawyers with significant professional experience are regularly involved in the program as students’ supervisors as well as experts in specific fields (such as legal ethics and adr). [44: for more information concerning the brescia model, see c. amato, ‘developing strategies for academic and financial sustainability: the brescia legal clinic’s experience’, cit., p 141 ff. ] finally, through clinical legal education, academia draws closer to society: law schools, through a creative reinterpretation of their role, open their doors to vulnerable individuals and excluded communities by providing legal services. universities, through legal clinics, have the possibility to tackle unmet legal needs, helping the most vulnerable, who often have very limited access to legal services for financial, logistical or cultural reasons and who have more limited possibilities for enforcing or defending their rights. therefore, clinical legal education represents a valuable tool to enhance access to justice and to foster social change. the law schools, taking advantage of the clinical model of education, gain the chance, through the pursuit of their primary educational mission, to advance social justice and, ultimately, to give the public more confidence in the solicitors’ profession. 24 reviewed article – clinic, the university and society 7 greenprint for a climate justice clinic: law schools’ most significant access to justice challenge adrian evans, monash law school, australia introduction the obvious existential challenge posed by global warming is also an access to justice challenge. as natural resource pressures caused by larger populations are exacerbated by climate catastrophes, corruption increases, law and legal systems lose impact and respect for the rule of law heads downhill. arguably, as this descent becomes established, more individuals and more groups turn away from law and legitimate enterprise and towards terrorism, organised crime and populist or angry self-interest. despite the paris accords of 20151, there is little prospect of willing government action in defence of climate, at least in the limited time available. global emissions are continuing to rise absolutely and per capita, year by year.2 australia is among the ‘leaders’ here,3 with no unconditional commitment in either major party to make the necessary and profound cuts to emissions, significantly beyond those agreed to in paris.4 populist and conservative forces are still in a position to frustrate and delay and remain unconvinced by or hostile to broad 1 the united nations framework convention on climate change (unfccc) received its strongest affirmation in the paris agreement of 2015. see https://unfccc.int/process-and-meetings/the-paris-agreement/what-is-theparis-agreement 2 peter hannam and nicole hasham “‘next decade critical’ to save a warming planet’, the age, 9 oct 2018, p5. 3 lisa cox, ‘australia on track to miss paris climate targets as emissions hit record highs’, the guardian australia, 14 september 2018 at https://www.theguardian.com/australia-news/2018/sep/14/australia-on-trackto-miss-paris-climate-targets-as-emissions-hit-record-highs 4 david crowe, ‘there is no will to find a way’, the age, 9 oct 2018, p 5. https://unfccc.int/process/the-convention/what-is-the-united-nations-framework-convention-on-climate-change reviewed article – clinic, the university and society 8 and penetrating concepts of sustainability. those who hold these opinions are strong in both centrist australian parties have a deep-seated confidence in the fundamental neo-liberal passion for unrestricted economic growth; and they may also just be more excited or even thrilled, by the images of expansion, for their own sake. nevertheless, resistance to such growth is, or needs to be, a major part of the socially responsible law school’s mission and profile, especially through its clinical programs. individuals and communities who are increasingly damaged by steadily rising temperatures, drought and flood have few straightforward means of legal redress. even if those who suffer most from our deteoriating climate have some funds, they are often blocked in seeking climate justice because the causes of action are still in embryonic form and the costs involved in developing such actions have been seen as too high. seeking climate justice is not straightforward. larger private law firm engagement with climate defence is often conflicted out because the short-term profit interests of their large corporate clients often dominate the thinking of both lawyer and client. even those few private lawyers who do want to take action are intimidated by the need for considerable funding for disbursements and likely defendant arguments about the supposed need for security for costs. so far, no one in australia has been able to locate a wealthy benefactor, foundation or not-for-profit prepared to meet these costs. some law schools are nevertheless in a position to fill this access to justice void and assist in the effort to combat climate change by designing and developing a climate defence or climate justice clinic. there are potential causes of action in the areas of nuisance, negligence and reviewed article – clinic, the university and society 9 public trust, as well as specific statutory and general regulatory arguments that can be developed in some jurisdictions. this paper discusses and proposes a greenprint for such a clinic, not just to assist access to justice and climate defence, but to play a part in strengthening the political and social consciousness of the law students who pass through it. the discussion draws on the clinic design principles set out in australian clinical legal education5 and proposes a specific partnership model that leverages existing private lawyer goodwill and harnesses law school alumni beneficence. what a law school clinic can do that a private law firm and barristers have not australia is not a large co2 emitter by volume, but it is among the largest on a per capita basis.6 in consequence, there is arguably a moral and pragmatic obligation on well-resourced australian law schools with moral activist clinicians, to contribute to the concept of climate justice,7 just as many already do to address criminal law and numerous conventional, civil access to justice issues. law schools with well-developed clinical traditions tend to have access to a steady supply of motivated and skilled student researchers. some of these are looking for opportunities to 5 evans et al, australian clinical legal education, anu press, canberra, 2017. available at https://press.anu.edu.au/publications/australian-clinical-legal-education 6 information provided by the climate council in 2015. see https://www.climatecouncil.org.au/2015/05/20/new-report-reveals-that-australia-is-among-the-worst-emittersin-the-world/ 7 there is a specific clientearth legal practice in the united kingdom – see https://www.clientearth.org/, a firm which seeks to represent the earth as the client, utilising the concepts popularised in cormac cullinan’s wild law: a manifesto for earth justice (green books, london, 2003). there is also an australian earth laws alliance, at https://www.earthlaws.org.au. https://www.clientearth.org/ reviewed article – clinic, the university and society 10 pursue graduate research and many of these are capable of investigating, under supervision, likely causes of action. law schools with sufficient staff depth can also provide the necessary academic and practitioner supervision for those students, linked to now commonplace multidisciplinary sustainability resources of their university. finally and most importantly, strong law schools are increasingly able to access high net worth clinical alumni and carefully recruit them to provide the relatively high levels of necessary funding for operating costs, and to meet potential security for costs’ orders. the key element in such recruitment is an alert attitude to possible sources of limited startup funding and slow, careful engagement with potential long term donors to the ongoing operating costs of law school clinics. often, these will be clinical alumni. some will be known personally to clinic directors, others to dedicated alumni managers of the university. not to put too fine a point on it, these people need to be recruited to a cause, and then sustained in their involvement in clinic priorities and direction, consistent with appropriate governance mechanisms. governance and control identifying key partners governance of a climate defence clinic is an especially important task, something that cannot be fudged or rushed. the potential for political and financial missteps is real and accordingly, a strong, unified and specialised advisory board is justified, separate from any pre-existing and overarching clinical program advisory group that will lack a close knowledge of climate law and climate networks. reviewed article – clinic, the university and society 11 ideally, this purpose-constructed climate defence advisory group will consist of five people with gender diversity: a managing partner of a significant mid-tier commercial law firm (which will be prepared to support climate litigation and clinical supervision pro bono, and which is unlikely to be conflicted out because of the commercial interests that are almost certain to be a problem with the largest firms), a major relevant ngo from the environmental law sector (which will provide relevant environmental network expertise and advice), a law school environmental law/ climate law academic and fourthly, a representative of the university’s own sustainability network, institute or centre. the fifth member will be its nominal chair, and ideally, this person will be the overall director of the law school’s clinical programs. note that three of the five members of this body, which is advisory not determinative, are university employed, ensuring that effective control rests with the law school,8 in order to protect the educational objective of the clinic and ensure the same is pursued alongside the access to justice objective, and not relegated behind same. a role for the donor(s), consistent with advice, but not control major alumni and other donors to the clinic are also likely to want a seat at the management table, consistent with the ownership they may feel that arises from their status as significant donors. it is essential to be clear with donors that donation does not equate to control, but does come with an expectation to be consulted. accordingly, if any particular donor is 8 note however that universities are not omniscient and can also misstep, particularly if they think their marketing is threatened. see for example the anu law case in march 2018, where an anu law student was removed from marketing publicity by the university because she wanted to include a statement about the plight of refugees. see emily baker, ‘anu removes law student from marketing booklet in aim for 'political neutrality', sydney morning herald, 19 march 2018, at https://www.smh.com.au/education/anu-removes-lawstudent-from-marketing-booklet-in-aim-for-political-neutrality-20180316-h0xklf.html. reviewed article – clinic, the university and society 12 insistent on a veto of clinic litigation decisions, their donation ought to be clarified and if necessary, respectfully declined with the above reasons given. this position is in any event, very likely to be consistent with general university attitudes to donors’ conditions. but donors’ trust must be respected and they must be regularly consulted and listened to. and for this reason, it is also important to regularly invite donors to be observers at advisory board meetings, and to make presentations on the issues that they think are important. it is best practice that each of the clinic’s partners is consulted on and has provided informed agreement with the clinic’s objectives.9 it is not recommended that a donor or donors be formulated into a separate donor advisory group for the clinic, as this can set up structurallyentrenched and competing advisory groups that will tie the hands of the clinic director. clinic design clinic design if this does not state the obvious must occur before a clinic is in operation and begins with identifying and stating the desired course learning outcomes.10 such identification is harder than it sounds, but can be begun by simply phrased, high level statements. in this clinic, learning outcomes might be stated as: • capacity in each student to understand the scale of climate deterioration and the key human contributions to same • a willingness and capacity to critically analyse the existing law of climate preservation and anticipate areas where it might be extended 9 see evans et al, australian clinical legal education, anu press, canberra, 2017, ch 4 course design for clinical teaching. 10 evans et al, note 7, pp 67-98. reviewed article – clinic, the university and society 13 • an ability to describe the different legal approaches to defending the climate and the factors and strategies to be taken into account in judging which approaches are best in what circumstances • adequate capacity to reflect on their experience in the clinic. in addition to defining learning outcomes, there will be a range of best practices to take into account, as specified in australian n clinical legal education.11 these typically include specifying necessary pre-reading and its assessment, in-course materials if any, clinic attendance times and other required activities. in addition, suitable pre-clinic observation (for example, with prior clinic students showing new students the ropes), is desirable. class room components are commonly seen as mandatory, to allow students to share and understand their clinic experience having regard to published documents and cases, while necessary reflection is often also a class room group activity, mediated through individual student journals. while clinics can be online and remotely delivered to suitable clients, the efficacy of this clinic is likely to depend on meaningful professional relationships that are best developed face to face over a reasonable period. clinic length should therefore be at least a semester and ideally, a whole year, to allow consolidation of relationships, reflection and stronger learning outcomes. student selection into this clinic will be contested, not always for ideal reasons. the selection process should be negotiated with key partners and not just left to any default university procedures, even if the latter, should they exist, appear rigid. it is strongly suggested that: 11 see generally, evans et al, note 7. reviewed article – clinic, the university and society 14 the selection process is transparent and non-discriminatory. the prerequisites for selection are clearly articulated. the reasons for choosing particular methods of selection (which can include ballot, interview, stage of study or completion of a prior clinic) are articulated. there is no presumption that access to cle courses and clinical experiences should be limited to later-year students.12 education and causes of action – strategic litigation against climate change education and compliance around the task force on climate related financial disclosure there is powerful utility in a clinic design that engages law student-education and research strengths by building on the global task force on climate related financial disclosures (tcfd).13 tcfd is an initiative of the uk financial stability board14 which has signed up many global corporations to a commitment to review their own climate preparedness. the incentive for corporations to cooperate with the tcfd protocols is financial: if their shareholders understand and can see that they are actively preparing for future climate impacts by disclosing their climate-related financial risk, they are likely to be persuaded to remain as shareholders rather than exit when their balance sheets are affected by recurring major climate shocks. agriculture, fishing, superannuation and insurance are among the most directly affected activities, but the tcfd now includes nearly all major production sectors across the world. properly supervised, some law students are capable of assisting such 12 best practice 10 of best practices in australian clinical legal education, final report, clinic design, 2012, p 13 at https://cald.asn.au/wp-content/uploads/2017/11/best-practices-australian-clinical-legal-education-sept2012.pdf. 13 see https://www.fsb-tcfd.org 14 the financial stability board is an international organisation headquartered in the uk, with a global responsibility to build resilience into financial organisations. established in the aftermath of the 2008-09 global financial crisis, its mission has since broadened to include the wider and deeper threat posed to financial stability by climate change. see http://www.fsb.org/what-we-do reviewed article – clinic, the university and society 15 corporations in their preparations for such disclosure. for example, monash and the major asian firm king wood mallesons run a specialised climate-preparedness audit for the large corporate clients of that firm, with law students examining each client’s business and developing the details for the audit.15 superannuation litigation this educative approach does not directly challenge emitters in a litigious way, but there are other related approaches to achieve a similar strategic impact. superannuation is particularly fertile ground for climate litigation. one example concerns a young australian landscape ecologist who in 2017 ‘…used the market forces website to ask his superannuation fund, rest, whether it was considering climate risks when making investment decisions.’16 when the fund repeatedly refused to answer his query, he commenced federal court of australia action with the assistance of the major ngo in the sector, environmental justice australia. this litigation highlights that corporations which have super fund shareholders and that is virtually every major company will be under increasingly negative public scrutiny if they are not adopting tcfd protocols for disclosure of their preparations for climate adversity. negligence and failure to act – civil law and specific constitutional protections to date, the case launched by environmental rights group urgenda foundation in the 15 this concept was the brainchild of a monash professorial fellow, dr bruce dyer who, well before the tcfd emerged in 2016, persuaded his then firm ashworths, to develop an environmental audit as a pro bono service to its own clients, in the interests of their own corporate social responsibility. this clinic continues now as an externship partnership with king & wood mallesons. see https://www.monash.edu/law/home/cle/types-of-clinics. 16 julien vincent, ‘it’s time super funds came clean’, business, the age, 2 august 2018, pp23-24. reviewed article – clinic, the university and society 16 netherlands is the most significant example of successful climate action, essentially on the basis of negligence or a deliberate failure to act. 17 in a letter to urgenda, the dutch government acknowledged that its actions are insufficient to prevent dangerous climate change. urgenda concluded that the netherlands is knowingly exposing its own citizens to danger. in legal terms, that is a wrongful act of the state. the dutch supreme court has consistently upheld the principle that the government can be held legally accountable for not taking sufficient action to prevent foreseeable harm. urgenda argues that this is also the case with climate change.18 the dutch government was ordered at first instance and affirmed in the hague court of appeals19 to take affective action against climate change by lowering emissions, but may appeal to the netherlands supreme court. where a particular legal system allows, similar fundamental approaches are possible. in the us state of oregon, 21 teenagers have received us supreme court permission to proceed in a case which challenges the federal government for an alleged failure to protect their constitutional rights. they allege that the government has failed to take meaningful action 17 mark loth, ‘too big to trial?: lessons from the urgenda case,’ tilburg private law working paper series, no. 02/2018, at https://ssrn.com/abstract=3130614. 18 see climate case explained, at http://www.urgenda.nl/en/themas/climate-case/climate-case-explained. 19 arthur neslen, ‘dutch appeals court upholds landmark climate change ruling’, the guardian, 10 october 2018, at https://www.theguardian.com/environment/2018/oct/09/dutch-appeals-court-upholds-landmarkclimate-change-ruling. see also urgenda foundation v the state of the netherlands, c/09/456689/ha za 13-1396 (24 june 2015), at https://www.elaw.org/nl.urgenda.15 https://www.theguardian.com/environment/2018/oct/09/dutch-appeals-court-upholds-landmark-climate-change-ruling https://www.theguardian.com/environment/2018/oct/09/dutch-appeals-court-upholds-landmark-climate-change-ruling reviewed article – clinic, the university and society 17 against climate change and in so doing, has challenged their ‘…rights to life, liberty and property.’20 a trial in this case is also pending. finding plaintiffs, finding regulatory failure while urgenda and the oregon case do not represent obvious precedents for jurisdictions such as australia because the netherlands is a civil law system with specific constitutional protections for the environment and the us appears to permit similar direct constitutional approaches both are enabling actions in the sense that they have encouraged and stimulated similar efforts elsewhere. a sub-page of the foundation (‘global climate litigation’) lists current developments in similar litigation in ireland, new zealand, switzerland, belgium and india.21 in countries without specific constitutional or regulatory protections, or obvious causes of action in negligence or nuisance, the challenge to create a convincing skein of argument continues. fortunately, the current law in australia22 accepts that ‘climate science is acceptable in evidentiary terms; that single construction or extraction projects can contribute to global warming; and that emissions are cumulative.’23 so the challenge may be principally about finding the right factual situation and the right plaintiff. 20 malcolm sutton, ‘climate change litigation rising with the seas as victims revert to 'plan b'’, abc radio adelaide, 10 april 2018, at http://www.abc.net.au/news/2018-04-10/climate-change-litigation-rising-with-theseas-plan-b/9627870. the action is listed for late 2018 and is listed as united states v. u.s. district court for the district of oregon, 18a65. 21 see http://www.urgenda.nl/en/themas/climate-case/global-climate-litigation. 22 the state of play of global climate change law is increasingly accessible. see for example daniel a. farber and marjan peeters (eds), climate change law, edward elgar, 2016. 23 see adrian evans, ‘the climate for whistle blowing’, winter 2017, 27(2) the australian corporate lawyer 34, citing anita foerster, hari osofsky and jacqueline peel, shaping the next generation of australian climate litigation, report on a melbourne law school workshop, 17 november, 2016 (unpublished). http://www.abc.net.au/news/5829868 http://www.abc.net.au/adelaide/ http://www.abc.net.au/adelaide/ http://www.abc.net.au/news/2018-04-10/climate-change-litigation-rising-with-the-seas-plan-b/9627870 http://www.abc.net.au/news/2018-04-10/climate-change-litigation-rising-with-the-seas-plan-b/9627870 reviewed article – clinic, the university and society 18 for example, in the australian context, a plaintiff such as a great barrier reef tour operator might be able to successfully assert that the concerted failure of government (state and federal) to sufficiently lower existing national emissions which contribute to destabilising the reef – already the highest per capita on the planet combined with their positive acts of endorsement of new major coal mine(s), broad scale land clearing and the methane leakages associated with unconventional gas extraction, are all inconsistent with general principles underlying existing environmental protection legislation. other possible plaintiffs might be the national farmers’ federation, especially in the major drought years which are becoming more frequent; fisheries organisations concerned with diminished inshore fish stocks due to increased current and temperature variability; and at local community levels, residents groups that experience property losses due to flash flooding from major, sudden climate events. it is not impossible also, that a major national insurer (supported by their international reinsurers) and cognisant of the worsening effects on their balance sheets of any of these groups and their burgeoning property losses, would fund a test case organised by a prepared and strongly-partnered climate defence clinic, to try out these and other causes of action. it is of course, not easy to commence climate litigation anywhere and that reality must not be understated. and it may be suggested that a university clinic is least prepared for such major work; but universities are one of the lightning conductors for major social change and they can have better antennae for conflicts of interest than private corporations. they are also adept at collaboration because of their research cultures, and their law schools, especially reviewed article – clinic, the university and society 19 those with strong clinical histories, are experienced in cooperating with significant not-forprofit interest groups. the ‘right’ law school can seize this opportunity. the supervising clinician/ clinic director role a small specialised clinic of this nature can be supported administratively through the wider clinical program, but the need to effectively recruit into the key role of supervising clinician cannot be underestimated.24 this is a difficult position, given the governance and remuneration constraints on the role. however, the open legal recruitment market is now mature enough to contain a number of suitable environmental lawyers with the conventionally necessary characteristics: enough relevant experience, technical competence, enthusiasm, personal skills and judgment. but the right appointee must fit other more exacting criteria as well: they must be an inherently capable teacher and be tolerant and accepting of university bureaucracy (especially around inflexible assessment rules and cautious academic hierarchies). even more constraining is the question of salary and career advancement for this clinician. law schools’ budgets are notoriously tight compared to private law firms and their general reluctance to employ a full time clinician for a small single-purpose clinic can be expected. australian law schools are perhaps overdue to experience declining enrolments and declining revenues. it might almost be taken for granted that a law school dean will be reluctant to embark on a climate justice clinic if they must find the necessary supervisor salary solely from law school resources. nevertheless, some of these deans will be willing to 24 see evans et al, note7, ch 9 resourcing live client clinics, pp 203-207. reviewed article – clinic, the university and society 20 engage the ‘right person’ on a fractional appointment, say at 2-3 days per week, particularly if that expense is factored into the approach to major donors that ought to precede the establishment of the clinic. failing success in securing a direct law school appointment, it is also possible (with some safeguards) and perhaps desirable to ask the mid-tier firm which partners with the law school, to second one of its lawyers to the role of supervising clinician, ideally for a minimum period of two years. there are many examples of law firms successfully seconding lawyers to community legal services and clinical programs,25 so the concept is hardly novel. the key safeguard would be the law firm’s agreement to a strong and published conflict of interest protocol, developed in conjunction with the law school’s legal ethicists, which would identify areas where the law firms’ interests could diverge from those of potential clients or the law school, and refer decisions on those issues to an independent third party. a secondary provision would require that student assessment be decided by a law school academic, in consultation with the clinic director. providing such safeguards are in place and such a person is available and willing to be seconded for that period to the role of clinic supervisor/ director, then they can supervise and direct such clinics with confidence. such a collaboration helps to tie in the firm to the law school, with numerous relationship benefits that can add to the sustainability of the clinic. the last major issue with the supervising clinician is their reporting line. whether they are a seconded lawyer or employed directly by the law school, they ought to be responsible to the 25 kingsford legal centre-unsw for example, has a staff solicitor position seconded from herbert smith freehills. see http://www.klc.unsw.edu.au/about-us/klc-staff. reviewed article – clinic, the university and society 21 overall clinical program director, not to the advisory board. any other arrangement will blur the governance process and impede clinic progress. conclusion the value proposition for university fund raisers and alumni a concluding point is to recognise that climate litigation will be opposed not just by individual defendant corporations and various levels of government, but also by entrenched power groups within some industry sectors. some of these groups may apply pressure through university councils. these cases will be quickly politicised. but the politicisation is now not so one sided as it would have been even five years ago. community frustration with government inaction is intense. law schools/ partner law firms and donors are not isolated and need not fear broad longer-term public opposition to their activism in this area, not least because younger people are more concerned than their parents and opponents’ demographic is naturally withering. the ‘right’ judge or judges, capable of understanding and accepting the science, listening to the ‘right’ advocates and possessed of some courage, will inevitably fit together with the ‘right’ case and the ‘right’ plaintiff, for the era. this considerable conjugation of positive factors has occurred before,26 and does so every time the law advances. a climate defence clinic, partnering with appropriate private pro bono lawyers, not-for-profit legal expertise and significant alumni donors, can be alive to suitable plaintiffs and propose representation when approached. 26 as for example (in the australian context), in the mabo litigation of the early 1990s, when the then utterly contentious concept of native title was developed by the high court of australia. see mabo and others v queensland (1992) hca 175 clr 1. reviewed article – clinic, the university and society 22 preparation, engagement and relationship management are the keys, and a lengthy lead time is likely while these players are brought into alignment. but of all these factors and players, the most pressing is the need to identify a suitable benefactor-funder. if climate change is among the most profound challenges faced by our species and its affects are fundamentally contributing to the breakdown of justice and the rule of law, then the innovative, socially responsible law school will get on board soon. they will find an alumni-founded or owned business that already sees climate-sensitive business practices as necessary and appropriate for their own sustainability, and persuade them to connect that sensitivity to the need to for climate justice. the value proposition for such alumni is their legacy, personal and financial. book review reimagining clinical legal education edited by linden thomas, steven vaughan, bharat malkani and theresa lynch pavel glos, palacký university, czech republic[footnoteref:1] [1: pavel glos is a postgraduate student at the law faculty of palacký university in olomouc, czech republic] prompted by a complex of changes in government, markets, and society which push and pull at the aims, organisation and delivery of legal education, linden thomas, the manager and in-house solicitor of birmingham law school’s centre for professional legal education and research (cepler), organised a workshop, held in march 2015, to discuss and explore the implications of such changes for clinical legal education. this edited collection comprises a selection of contributions presented at the workshop. i approached this book as a student who has a several years’ experience with various forms of clinical legal education. the title reimagining clinical legal education inspired my imagination and i did not dare to estimate what it would come after. after reading this book i am able to confirm that the organizers of the workshop, which preceded this book, chose the apposite title. the aim of the workshop, and thus this collection, was to bring together different stakeholders, including leading scholars, senior figures from professional practice, students, and representatives of third-sector organisations who contribute to the delivery of clinical legal education in law schools in england and wales, in order to reflect on the key issues arising from the changing legal services market and higher education sector, and the opportunities and threats presented by those changes. contributors were invited to explore the future of clinical legal education in this transformative period, and this collection comprises chapters based on, or inspired by, a selection of presentations given at the workshop. as such, this collection covers diverse ground and presents a range of perspectives. there are chapters which draw on theory, others which are empirically grounded, and a number that are reflective case studies. one is written by a student, and another by a practitioner with decades of experience of internal learning and development in a law firm. this breadth of insight and multiplicity of perspectives are supported by three post-scripts that offer short commentaries on these thoughts in a global context, based on clinical legal education practice in australia, the united states of america, and eastern europe. however, this collection is not intended to be a roadmap to the future of clinical legal education. the authors make no claim that what they offer up is revolutionary. they are not trying to suggest new models of clinical legal education in the case studies discussed. their intention is to consider instead the role that particular models are likely to have going forward, bearing in mind the current and likely future context in which clinics will operate. their aim is to offer up thoughts, experiences and ideas that could form stepping-off points for conversations between academics (clinicians and others), students, employers, regulators, and third-sector organisations alike on the path to a future in which clinical legal education, and those who deliver it, are sufficiently robust and adequately prepared to rise to the challenges and opportunities that will continue to abound. the main focus of this collection is to examine the extent to which clinical legal education has been (or should be) responding to the dynamic and developing context of the legal services market and higher education sector, whether cuts to legal aid following the introduction of the legal aid, sentencing and punishment of offenders act in 2012 prompted (or should prompt) a re-evaluation of the role and purpose of clinical legal education, specifically in regard to unmet legal need in england and wales. furthermore, the authors explore who engages in delivery of clinical legal education in england and wales and how they carry out it; and whether, or to what extent, those involved in clinical legal education perceive it as preparing law students for the world of (legal) work. finally, the authors come to clinical legal education as a distinct field of scholarship, they are interested in its relationships with other forms of teaching and student experience; and the approaches to, and quality of, clinical legal education scholarship. there is no doubt that this collection provides an appropriate platform for reimagining clinical legal education. distinct ways which shed light on how clinical legal education can be reimagined (supported by contributions of different stakeholders) enable to readers to reflect its own experience and imagining from multiple perspectives. even if it is not possible in a collection such as this to fully capture the diverse and multifaceted clinical offering alluded to above, the main purpose and the intention of the authors remains preserved. the particular chapters encouraged by specific examples from practice underline the importance of clinical legal education as a meeting place where academia blends with practice. although, the ideas raised in this collection are certainly not new, the overall context and different perspectives from which they are discussed demonstrates the potential for future development of clinical legal education. undoubtedly, the book proposes incentive thoughts, experiences and ideas that will resonate for those involved in and interested in this field. it could be considered the cornerstone for conversations between scholars, legal practitioners, students, regulators, and third-sector organisations alike on the path to a future in which clinical legal education, and those who deliver it, are adequately prepared to rise to the challenges and opportunities that will continue to abound. pavel glos, 254 201077je_jcle_july07 1 (2007) clinical legal education association, usa. available for download from: http://www.cleaweb.org/ documents/best_practices_for_legal_education_7_x_10 _pg_10_pt.pdf 2 (2007), sullivan and others. published in the us by josseybass. for a summary of the recommendations and findings see: http://www.carnegiefoundation.org/files/elibrary/ educatinglawyers_summary.pdf 75 foreword foreword two recent publications: clinical legal education has a long history of self-examination, perhaps driven by the initial (and in many cases, continuing) scepticism of the “regular” academy. the danger with such self-examination is that while it drives the development of “clinic” as a teaching methodology, it can obscure the potential role for clinic as a significant element of the law curriculum. i hope readers won’t mind therefore if i draw their attention to two recent publications which examine that curriculum and ask how law as a subject can be more effectively taught, so as to prepare students for ethical professional practice. both books emanate from the united states of america – and there could therefore be a slight tendency for an international audience to discount their value, given the unique american legal education context. in my view, however, both books are models of wider thinking about how we can all, as legal educators, help our students to realise their individual potential, while entering in practice as effective professionals, serving clients and communities. roy stuckey’s long-awaited work, best practices for legal education: a vision and a road map1, is an invaluable analysis of what constitutes best practice in law schools. the book is a model of clarity – setting out key principles for legal education, and then supporting each principle with copious reference to the relevant literature. the book thus serves not only as a “vision and a road map”, but as a form of ultimate literature review of the various writings about different aspects of the provision of legal education. also out is the carnegie foundation’s most recent review of legal education, educating lawyers: preparation for the profession of law2. a very different type of work to stuckey’s analysis of best practices, the book identifies both the strengths and weaknesses of the dominant socratic, case-method of teaching in us law schools, and argues for a bolder and more integrated approach to legal education – one that seeks to avoid some of the simplification and moral unconcern of the traditional discourse. both books should bring of enormous interest to clinicians in all jurisdictions. both see clinic and experiential learning as being at the heart of legal education. stuckey’s chapter on experiential courses is a superb resource for clinicians, helping us to review the way in which we use experiential learning. the carnegie authors look to clinic to help make good some of the deficits that exist in the law school classroom experience – and their recommendations for integrated teaching across an integrated academic and professional faculty will provide support for clinicians everywhere in seeking to establish clinic at the heart of the process of learning law. in this edition this final edition of the journal for 2006 brings together three very different articles, which address the varying fields of clinical assessment practices, collaborative (cross-disciplinary) clinic, and virtual clinic – the planned provision of work-based learning through virtual learning environments. in the first of the articles, ross hyams draws on the australian clinical experience to address the issue of whether american assessment practices are readily transferable to other jurisdictions. the article should, in my view, be seen as a companion piece to roy stuckey’s article in the summer 2006 edition of the journal (can we assess what we purport to teach in clinical law courses?). hyams argues that the clinical assessment process cannot be seen as some form of normative measure based on objective standards, but instead should be seen as the assessment of the individual’s own personal development. particularly valuably hyams addresses the real issues in attempting to assess reflective journals, an assessment vehicle which is widely used in clinical programmes. hyams sees the issue of assessment within clinic as inextricably linked to the process of providing feedback – but argues that the pedagogy on clinical assessment in this field remains comparatively undeveloped. alan lerner and erin talati provide a fascinating account of the development of a cross-disciplinary clinical model, bringing together lawyers, doctors and social workers. the article carefully tracks the arguments for interdisciplinary education – and is frank about the challenges involved. the authors identify the historic reluctance of legal educators to engage in cross-disciplinary collaborative ventures – but readers who look at the case study in the appendix to the article will see immediately the huge value in such an approach, and the enormous opportunity for wider learning that is provided. in a very different context, melinda shirley and her colleagues at queensland university of technology look at the challenges in providing work-based learning for students, and at the potential for the use of e-learning methodologies in this area. the article not only challenges some of our conceptions about how work-based learning can be utilised but addresses the issue of whether, as generations change, student abilities to work within virtual learning environments will present opportunities for experiential learning generally. finally, in this edition of the journal, i am delighted to include in the clinical practice section a short article from maxim tomoszek and his colleagues in the law faculty of palacky university at olomouc, in the czech republic. based on a presentation at the learning in law conference at the united kingdom centre for legal education at warwick university in january of this year, the article looks at some of the particular challenges in running clinical programmes in the civil law jurisidiction of the czech republic, and interestingly concludes that the cultural expectations as to education are more of an issue for new clinics than are the differences between civil law and common law jurisdictions. summer 2007 conference this edition of the journal goes to press (late – mea culpa) shortly before this summer’s ijcle conference, which is being held in collaboration with aulai, in johannesburg. it has been heartening to see the sheer number of papers submitted for the conference, and the huge range of jurisdictions that are now represented. i look forward very much to presenting at least some of these papers in the next edition of the journal. 76 journal of clinical legal education december 2006 editorial reflecting on the ‘power’ of clinical legal education elaine hall elaine.hall@northumbria.ac.uk in this issue contributors from across the world have been reflecting critically on the implications of clinic in different academic and geographical settings. in particular, how student’s experiences of clinic within the university impacts their work outside the university. the flow of skills, knowledge and values between the university and the community invites us to look beyond the classroom and consider the multifaceted impacts of clinical legal education. firstly, melanie walker asks us to think about epistemic justice and the role of legal educators in shaping public good professionals go on to use their skills for the benefit of others. using critical theory she draws out the ways in which legal educators and students must engage with epistemic inequalities in legal knowledge making. these elements are encapsulated perfectly in the closing quote from nelson mandela; “to be free [is] to live in a way that respects and enhances the freedoms of others”. claudia man-yiu tam’s study of student perceptions of clinical legal education at hong kong university indicates a successful integration of experiential legal education in hong kong. she finds that students feel that working in the clinic enriches their understanding of the law and injustices in society more broadly and that they take this with them outside of academic spaces. in australia, francia cantatore explores the effects of clinic experience during university on student’s approaches to pro-bono work post-graduation. she draws together data from the law alumni and clinic client surveys to illustrate the ongoing commitments of law graduates to pro-bono work based on altruistic motives and the deep appreciation that recipients of these services feel. the benefits of clinic are shown here to extend outwards into the community as students move into professional work. louise whitehouse’s illuminating pilot study of research based clinical legal education at the university of hull assesses the impact of clinic work to address the information deficit in housing possession cases. the student clinic alongside other services such as the citizens advice bureau acted to give occupiers in housing possession cases a rafter of information to help them engage effectively with the judges. here students contributed to a joined up service addressing a lack of knowledge and legal empowerment amongst the public. in contrast to the work on the benefits of clinic for students, clients and the community alex nicholson and alireza pakgohar turn our attention to addressing the workload strains that clinic can put on university staff. their article applies the principles of “lean” management to the design of clinical programs at sheffield hallam university in order to make them more efficient and ease the burden of ongoing assessment and the demands of experiential learning on legal educators. moreover, in part ii of bryan horrigan’s detailed piece on the design and implementation of an enhanced clinical program in the “age of disruption” he addresses the macro-level challenges of todays world. he stresses the need to react to ever changing technology, and the effects and trends of globalisation and democratisation to ensure that clinical programs work well for everyone. finally, we have two from the field reports. jennifer lindstrom provides an informative and detailed summary of the ijcle conference at monash in november 2018, so for anyone who could not attend be sure to give that a read. malcolm combe also gives us an insight into the university of coventry and clinical legal education organisations’ event “clinics and sqe – what next?”. many important questions were asked and issues raised by members of various universities and professional bodies including the law society. combe concisely covers some of the implications of the solicitor’s qualifying exam in england, wales and perhaps further afield. i am also excited to share this video on the power of clinic produced by the law school at the university of bergamo and shared by angelo maestroni. it’s a great watch and you can find it here; https://www.youtube.com/watch?v=1nnyqp4j5as in other news, the gaje (global alliance for justice education) conference which ran from the 4th-10th december 2019 in bandung was a great success. we are very much looking forward to the ijcle conference which this year is happening in dublin from the 13th-15th july. for more information and instructions for submitting a proposal follow this link; https://www.northumbria.ac.uk/about-us/news-events/events/2020/07/ijcle-dublin-2020/ last but not least, i would like to wish everyone seasons greetings and hope that you all find time to rest and enjoy the festive period. 4 from the field report the international journal of clinical and legal education conference november 2018 jennifer lindstrom, monash university.[footnoteref:1] [1: jennifer lindstrom is a senior lecturer in law and experiential education at monash university, melbourne, australia ] from 28 to 30 november 2018, over 130 clinical legal educators, researchers and education partners from around the globe gathered at monash university in melbourne, australia for the annual international journal of clinical legal education (‘ijcle’) conference. the theme in 2018 was “adding value: how clinics contribute to communities, students and the legal profession”. led by professor jeff giddings in conjunction with associate pro vice-chancellor johnny hall and professor elaine hall from northumbria university, the team designed a program for australian and international delegates to gather and share learnings from clinical legal education. as a new clinician, i was excited to attend my first ijcle conference as a member of the clinical legal education team at monash university. the conference was hosted at our law faculty in the central business district and melbourne’s legal precinct. the program began with a pre-conference workshop at monash university’s campus in clayton. delegates visited the law faculty’s moot court then attended the workshop in the new learning and teaching building. the workshop titled “reflective practice and assessment in clinical legal education” was conducted by associate professors rachel spencer and ross hyams from monash university. victoria roper from northumbria university subsequently published a paper titled “reflecting on reflective practices in clinical legal education” on highlights of the workshop.[footnoteref:2] [2: roper, v. ‘reflecting on reflective practices in clinical legal education’ (2019) 26(1) international journal of clinical legal education 216.] wednesday 28 november was the first day of the conference. bryan walker of monash university welcomed the delegates with a welcome to country, followed by the opening address by the dean of the faculty of law at monash university, professor bryan horrigan. earlier in the day, associate professor kate seear hosted a “festschrift” for now emeritus professor adrian evans. colleagues and former students spoke about the impact of his dedication and paid tribute through speeches and original songs. this event was well attended by clinical educators from around australia as well as by international guests who have collaborated with professor evans over his long career in education and clinical legal education. a special issue on the festschrift has now been published by ijcle.[footnoteref:3] [3: international journal of clinical legal education, (2019). 26(2).] over the next two days of the conference, clinical educators presented papers in the format of six parallel streams with up to three speakers in each stream. the first morning consisted of two series of parallel sessions on developing interdisciplinary clinics, online externship and learning opportunities, whether law clinics need trigger warnings,[footnoteref:4] supervision, and introduction to developing clinics around the world. in sessions exploring clinics around the world, delegates shared examples of developing clinics in the united kingdom and indonesia. from the uk, alan east spoke about coventry university’s partnership with local charity provides opportunities to students to prepare and present cases in the social entitlement tribunal before a judge or doctor for welfare benefit appeals. cate sumner and nani zulminarni discussed various projects in indonesia, the highlight being how law students and paralegals from pekka (female-headed household empowerment program) provided free legal services to more than 190,000 to individuals in 2016.[footnoteref:5] in 2015, monash student jazmine elmolla visited indonesia on exchange and said “i observed that the process of conducting student legal clinics… was the same as at monash university but carried out with fewer resources and support” and that “the pekka paralegals were very organized. after every clinic the paralegals had a debrief session on the cases that has come to the clinic that day. i was struck by how the clients were facing the same difficulties as clients at the monash clinics”. [4: see seear, k. ‘do law clinics need trigger warnings? philosophical, pedagogical and practical concerns.’ (2019). legal education review, 29(1).] [5: sumner, c. & zulminarni, n. ‘the second decade looking back, looking forward: women’s access to the religious courts of indonesia’ (2018). (report no 16) https://law.unimelb.edu.au/__data/assets/pdf_file/0008/2777759/policy-paper_sumner-zulminarni.pdf. ] in the afternoon, parallel sessions were held on reflective practice, engaging with aboriginal communities, a poverty law clinic in canada, clinical legal education in south africa and kenya, and the clinical guarantee at monash university. monash university established its clinical legal education program in 1975[footnoteref:6] and now guarantees each law student the opportunity to participate in clinical legal education program for credit towards their degree. students gain practical legal experience through placements at monash law clinics, springvale monash legal service, anti-death penalty clinic, climate defence clinic, innovation & start-up clinic, modern slavery clinic and trade lab clinic. [6: giddings, j., ‘clinical legal education in australia: a historical perspective’ (2003). 3, journal of clinical legal education 7. ] the conference dinner was held on the middle evening at the melbourne zoo. participants were transported to the forests of asia and dined amongst the sounds of elephants and birds. on the final day, 19 sessions throughout the day included two plenary sessions. the first plenary in the morning consisted of a panel discussion and interactive exercises on supporting students to act consistently with their values. papers were then presented on establishing a climate defence clinic,[footnoteref:7] achieving excellence in external clinical legal education opportunities,[footnoteref:8] creating a chatbot in a clinic setting,[footnoteref:9] how law schools can teach empathy, and the importance of student well-being in clinical programs.[footnoteref:10] [7: a new clinic to be established by monash law clinics led by emeritus professor adrian evans in 2019.] [8: presented by lisa bliss from georgia state university college of law, kate fischer doherty from melbourne law school and su robertson from westjustice.] [9: flinders legal advice clinic.] [10: a project focussing on student wellbeing supervised by associate professor rachel spencer and lecturer jackie weinberg at monash law clinics with undergraduate law students. ] the ijcle conference utilised technology to engage with participants. delegates actively engaged with sessions and colleagues via twitter. in the session on teaching empathy, the honourable judge michelle christopher presented a paper from her honour’s chambers in canada. delegates addressed benefits and challenges in rising use of technology in papers such as peter joy’s discussions on “client confidentiality and the digital realm”, using robots (ipads on wheels) for students to attend hearings remotely[footnoteref:11] and monash law clinic’s initiatives on establishing virtual clinics for clients who cannot attend clinic offices due to various barriers.[footnoteref:12] matthew atkinson and margaret castles discussed the use of contemporary methods such as blogging by students about clinical experiences. the conference ended in a final plenary session where delegates formed collaboration groups to explore themes which emerged from the conference. [11: alan east’s session on “advocacy in clinical legal education: presenting cases in tribunals”. ] [12: project by jackie weinberg, lecturer from the faculty of law at monash university. ] the post-conference event was an excursion to the dandenong ranges for bird watching. a family of kangaroos did not disappoint and made an appearance for photo opportunities for our international guests. the excursion concluded at a winery in the yarra valley. the next conference will take place in bratislava at the comenius university from 3-5 july 2019. the theme this year is “improving the future: using clinical legal education to educate lawyers for a just society.” information, links to papers, conference presentations from 2018 can be found here. 231 from the field round up of the 2nd commercial law clinics round table – 9th march 2018 victoria roper, northumbria university[footnoteref:1] [1: victoria roper is a senior lecturer and student law office supervisor at northumbria university ] keywords: business law clinic; commercial law clinic; sqe; transactional law clinic the second annual commercial law clinics roundtable took place at the university of sheffield on 9th march. the event was well attended by a range of clinicians and clinic students as well as start-up and enterprise advisers. louise glover, who organised the event, started the day by welcoming delegates before briefly talking about the successful growth experienced by the university of sheffield’s legal clinic. the context for commercial clinics the focus of the first part of the day was the start-up and small business ecosystem. andrew bunn, a start-up adviser from business sheffield, discussed the common areas where advice start-ups need advice. he summarised these as follows: · partnership agreements; · lease agreements; · employment law · intellectual property (ip) including trademarks and copyright; · infringement of ip; · shareholders’ agreements; · terms and conditions (especially payment terms); · technical provenance; · contracts and contract negotiations; · non-disclosure agreements (ndas); and · general data protection regulation (gdpr). darren chouings, a start-up coach from the university of sheffield, then went on to discuss his experiences. there was significant overlap between the key areas of business need suggested by darren, and those covered earlier by andrew: · terms and conditions (payment terms, guarantees, warranties, force majeure etc.); · privacy policies and online disclaimers; · client contracts (including sub-contracting); · copyright and ip; · partnership agreements; · gdpr compliance; and · liability and protection. key points coming out of the presentations and subsequent question and answer discussions were: 1. that business clients often had multi-faceted and complex legal needs – an entrepreneur or business usually approaches an advisor or clinic with multiple different issues. 2. there was a clear unmet need in terms of legal assistance for start-ups and young businesses, usually they need advice but often cannot afford to pay a solicitor. 3. often clients would only seek advice after a problem had already arisen. models of commercial law clinic the second part of the day was dedicated to exploration of the different models of commercial clinic and then a question and answer session. it was noted that commercial clinics operate under various models and supervisory structures, and that new clinics might want to ‘cherry pick’ those aspects from each example which best suited their own needs. 1. commlaw at the university of sheffield commlaw is a student-led project which prepares and delivers free commercial legal advice to businesses in sheffield; particularly small businesses, start-ups and entrepreneurs. this presentation was delivered by students of the clinic and focussed on their personal experiences. the students discussed being supervised internally, although the clinic website does suggest that there is some use of external supervisors from local law firms. [footnoteref:2] the students did not discuss whether they were assessed. the clinic website states that the student advisers are able to deliver advice on a range of commercial legal issues including: [2: https://www.sheffield.ac.uk/law/commlaw (accessed 15 march 2018). ] · website terms & conditions; · business structures; · product labelling regulations; · disclaimers; and · contractual issues. 2. sheffield hallam university sheffield hallam has an existing law clinic which provides a diverse range of advice. rebecca draper from the clinic noted that it is expanding into commercial legal advice and is proposing to apply for an alternative business structure (abs) licence.[footnoteref:3] it was explained the proposed move to abs status should help the clinic better position itself to respond to the changing qualification landscape for solicitors, allow the clinic to widen the breadth and complexity of work undertaken, and ensure authorisation to undertake reserved legal activities.[footnoteref:4] whilst the clinic would offer its services free of charge for the first 12 months, careful consideration was being given to the possibility of charging some fees to support the clinic’s activities. whilst the clinic would obtain a separate identity if it were to become an abs, there would be continued financial and other support from the university. clinic staff had been hired on non-academic contracts specifically to work in the clinic. currently clinic students are assessed by way of reflection, although this may change in the future. students are supervised and will continue to be supervised, internally by qualified solicitors. [3: for a detailed discussion of the issues for clinics involved in becoming an abs, see elaine campbell and carol boothby, ‘university law clinics as alternative business structures: more questions than answers?’ (2016) 50(1) the law teacher, pp.132-137 ] [4: for discussion about the regulatory uncertainty surrounding law clinics see linden thomas, ‘law clinics in england and wales: a regulatory black hole’ (2017) 51:4 the law teacher, 469-485.] 3. leeds beckett university rebecca hopkinson, pro bono/law clinic manager, discussed her work to embed clinic into leeds beckett’s llb programme. following a process of validation, the module (which is still partly in the development stage) will operate as a credit bearing elective. the clinic has been fortunate to be given premises in the centre of leeds by the university and operates on a two week turnaround for provision of advice. rebecca explained that the need to source clients for the clinic had led her to utilize the university’s current business connections, including links to local rugby and cricket organisations. through such organisations’ networks, rebecca has been able to identity a significant number of grass roots clubs that needed advice on funding and structure options, including the possibility of becoming charities. the clinic is still evolving but is likely to employ both internal and external supervision. 4. the small business unit at the university of strathclyde this was another student-led presentation which discussed the small business unit, a pilot stage project, at the university of strathclyde. the university of strathclyde already has a well-established clinic offering advice to individuals on personal matters. the small business unit has been set up with the aim of helping small businesses and charities in and around the glasgow area who could not otherwise afford legal advice.[footnoteref:5] the clinic is not currently assessed and works on an external supervision model with the assistance of commercial law firm dla piper. the clinic’s website states can assist a small number of clients with the following type of work: [5: information taken from the clinic’s website https://www.lawclinic.org.uk/beyond-casework/projects/sblu (accessed 20 march 2018). the students did suggest though that in fact the external firm of solicitors requires the clients to all be charities or have charitable aims so this may be a further restriction. ] · general commercial legal advice; · writing letters; · reviewing contracts and commercial leases; · assisting with drafting of contracts and agreements; · help with establishing a business and choosing a legal structure; · help with protecting non-contentious ip; · information on legal responsibilities across a range of areas of law; and · help with completing companies house forms.[footnoteref:6]  [6: https://www.lawclinic.org.uk/beyond-casework/projects/sblu (accessed 20 march 2018). ] the students discussed the work they had personally carried out which included assisting a charity which required employment law advice. key points coming out of the presentations and subsequent question and answer discussions were: · despite the unmet need, it was sometimes hard for commercial clinics to obtain enough clients. helpful advice was for clinicians to explore both internal and external sources of work: · external clients – think about links the university has to businesses/organisations in the region; · internal clients – do students in other faculties need business law advice/make links with entrepreneurial programmes. · commercial work can be more complex than an initially enquiry might suggest. · we have to think about how best to deal with any limitations on the work we can do. assessment and proposed sra reforms after lunch, the focus moved to assessment and, later, the sra’s proposed reforms in relation to the education and training of solicitors. gill hutchins, director of the freelaw clinic at the university of sheffield, discussed the history of free legal advice at the university with particular emphasis on the freelaw clinic.[footnoteref:7] [7: see discussion of the freelaw clinic in vicky kemp, tine munk and suzanne gower, clinical legal education and experiential learning: looking to the future (2016). available at (http://hummedia.manchester.ac.uk/schools/law/main/news/clinical-legal-education-final-report28.09.2016.pdf (accessed 28 march 2018). ] elaine campbell of northumbria university, newcastle elaine campbell of northumbria university discussed their student law office’s current and proposed assessment structure.[footnoteref:8] at present, every student undertaking the four-year m law degree at northumbria university experiences clinic as a full year, 60 credit module in their fourth and final year. students are assessed on their practical work (70% of their overall mark) and by way of two reflective essays (30% of their overall mark). a student’s final mark for their practical work is not just determined by the physical work they produce and evidence in their portfolio but also by the other skills and attributes they have demonstrated including oral communication, time management and teamwork. in future, under northumbria’s revalidated suite of degree programmes, students will have additional opportunities to work in the clinic. three-year llb students will be able to choose to do clinic as either a 60 credit assessed yearlong module in the third year, or they can do a smaller, advice only 20 credit module for one semester. m law students will, in future, undertake their 60 credit yearlong module in third year, and will also have the option to do a clinic based dissertation in their fourth year. [8: the student law office is the wider legal clinic within which business and commercial legal advice is provided at northumbria university. ] maxine carr, solicitors regulation authority (sra) following on from the discussion of assessment, maxine carr gave an overview of the sra’s proposed changes to the legal education and training of solicitors. the sra intends to introduce centrally set examinations to be undertaken at various assessment centres in england and wales. the examinations will consist of: · sqe1 multiple choice test questions (single best answer questions, extended matching questions and mcqs) which will test a candidate’s substantive legal knowledge and 1 practical legal research and writing assessment. · sqe2 – which will focus on testing 5 practical legal skills client interviewing, legal research, legal drafting, advocacy/persuasive oral communication, case and matter analysis (2 x 5 practical legal skills assessments). in future to qualify as a solicitor an individual will need to: 1. pass sqe1 and sqe 2; 1. hold a degree or qualifications or experience which the sra is satisfied are equivalent to a degree; 1. have completed qualifying work experience (qwe) equivalent to 2 years full time (this can obtained with up to four separate firms, educational institutions or other organisations including legal clinics); and 1. be of character and suitability to be a solicitor. students will no longer be required to have a qualifying law degree (or gld) or lpc. the way in which students prepare for the sqe exams will not be prescribed. the sra envisages that sqe1 will be sat before a student starts their qwe. the sra will recommend that sqe 2 is sat after the candidate has undertaken their qwe (but will not make this mandatory). victoria roper, northumbria university, newcastle in response to maxine’s presentation, victoria roper gave a reply and then led a question and answer session. victoria opined that the sra’s proposed changes offered both opportunities and challenges for legal clinics and law schools. it was noted that, as at the date of the conference, we were still waiting for the legal services board to make a decision on the sra’s proposals (approval has subsequently been given[footnoteref:9]) and that a number of things were still unclear. in particular, the cost of the assessments was not yet known and it was uncertain what impact the proposed changes would have on equality and diversity in the profession. also, victoria noted that the proposed implementation date of september 2020 was fast approaching and that universities usually needed at least 18 months to prepare for any major changes to the curriculum. [9: see the decision at http://hummedia.manchester.ac.uk/schools/law/main/news/clinical-legal-education-final-report28.09.2016.pdf (accessed 28 march 2018). ] in terms of opportunities though, victoria noted that the sra’s proposed changes could be beneficial for clinics and might help to further establish clinical legal education as a mainstream part of legal education. for example, victoria suggested that law schools are likely to be considering how their clinical programmes might help students to develop the competencies required to pass sqe 2. legal clinics, focused on the practical application of the law to real life legal problems and skill development, appear to be natural sqe 2 preparation environments (whether formally or informally). victoria noted that corporate and commercial practice was specifically one of five practice contexts that could be tested in sqe 2. additionally there is the possibility of clinics deciding to sign off on qwe. the person signing off the work experience does not need to confirm that the individual has the skills required to practice (this will be tested by sqe), but rather that the student has had the opportunity to develop some or all of the prescribed competences. the people who can sign off qwe are: · a firm’s compliance officer (colp); · a solicitor working within the organisation; or · if neither the above are applicable, a solicitor working outside of the organisation who has direct experience of the student’s work and who has undertaken a review of the work/received feedback from persons supervising the work in order to satisfy themselves. the solicitor who signs off the qwe does not necessarily have to have a practising certificate, it is sufficient that they be on the roll. victoria suggested that clinics therefore needed to give thought as to whether they wanted to sign off qwe (there will not be under an obligation to do so) and, if so, who in practice would do so. given that students do not work full time/set hours in law clinics, victoria raised asked a question about whether any guidance would be issued by the sra about how clinics should calculate the length of time of a student’s qwe spent in clinic. key points coming out of the question and answer discussions were that the sra: · is currently of the view that multiple clinical experiences/placements done within one university could be signed off as one ‘placement’; · has not decided to what extent it will undertake quality assurance of qwe e.g. spot checking or requesting samples of student work; · does not have any intention at present to provide any rules/guidance about how clinics should calculate the time a student can be signed off as having done in clinic, but welcomes dialogue on this point. maxine did indicate that the sra would likely support an approach of average hours per week x no of weeks and then using this figure to work out how many weeks/months full time work this equated to. however, the sra did not intend to stipulate that this was how it must be done. the student perspective why do students want to work in a legal clinic? the next part of the day was led by students from the university of strathclyde and the university of sheffield and involved them talking about what drove them to work in legal clinics. common themes and drivers were: · employability; · wanting to check if they liked doing legal work in practice, wanting to get a realistic idea of what a solicitor does; · the desire to combine voluntary work and practical experience (where the clinic was not credit-bearing/compulsory); · skills development as well as learning office skills (file management etc.) · the chance to take on a project and develop it; and · helping clients who might not otherwise be able to obtain legal advice/wanting to engage in pro bono – something that the students noted had come up a lot when they had been looking at university prospectuses. the students had mixed views about whether they preferred assessed or voluntary legal clinic. some students noted that being curricular and assessed helped to maximize the learning experience and get the best out of a student. a masters student undertaking clinic as a voluntary extracurricular activity thought there was value in not assessing though as it had allowed her to not worry about assessment and to focus on the experience. turning clinic experience into research and scholarship the last session of the day was dedicated to discussion of how we can use our clinical experience as the basis for research and scholarship. dr david hyatt of the university of sheffield talked about the professional and personal reasons for engaging in scholarship. he discussed an initiative at his university which has utilized scholarship circles/reading groups to stimulate research activity. with the group people had worked in pairs as ‘writing buddies’, setting themselves the challenge of writing two articles in a year. david suggested that working with someone else makes you accountable and more likely to meet achieve your goals. sarah blandy of the university of sheffield then went on to talk about clinical legal scholarship lacking evidence. sarah took us through the life cycle of one of her clinical research projects, prompting us to consider issues such as methodology (qualitative/quantitative/mixed methods), funding, access to participants, and ethics. last, but not least, elaine campbell of northumbria university, newcastle gave some practical advice based on her own research journey. elaine explained that it took her a while to find her niche, and that her first years as a researcher were characterized by outputs which ranged quite widely in topic. elaine explained that it is fine to start small, and it is easiest if you begin by writing about something you are really interested in and/or already know about. elaine’s key message was that each researcher must ‘find their own voice’ and not be afraid to write in a style that feels right to them. summary thoughts and conclusions patrick cahill from queen mary university of london concluded the day by noting that there are ongoing challenges in running commercial clinics but this is balanced out by the learning and skill development opportunities they afford students. he also spoke about the importance of legal clinics as vehicles for employability. he entreated us all to publish more, and to have a voice in relation to the sra’s proposed changes to legal education and training. wise words indeed. 249 257699b_ijcle_july_09 “the lord speaks through me”: moving beyond conventional law school pedagogy and the reasons for doing so dr. robert schehr* abstract maintenance of status quo law school curricular design and delivery, along with the continued marginalization of live client clinic programs, and the discordant objectives of law schools as compared to the expectations of bar passage, serve to stifle the role of juridic practitioners in the service of justice. decades of careful scholarship regarding the problems associated with the quality of legal education have repeatedly called for curricular revisions that should enhance the knowledge and skill base of graduates, develop their level of preparedness to actually serve in the profession, and demonstrate care for students. and while there has been a commitment on behalf of law schools to establish experiential educational opportunities through participation in live client clinics, far too often these clinics appear as appendages to the core curriculum and are marginalized as a result. this essay has two objectives – to address the serious and well-known shortcomings associated with law school pedagogy, and to stimulate consideration of alternate pedagogical methods that draw upon student development theory to enhance what education scholars know about cognition. * professor, department of criminology and criminal justice; executive director, northern arizona justice project, northern arizona university “the lord speaks through me” 9 i. introduction twentieth-century american philosopher, john dewey, famously suggested that much of what passed for pedagogy was the product of an authoritarian dispensation of instruction meant to maintain control over curriculum and classroom behavior. to facilitate an authoritarian pedagogy, dewey contended that teachers at all levels of instruction adopted the belief that “the lord speaks through me.” simply put, teachers are the sifters and transmitters of wisdom and knowledge, and they alone serve as the arbiters of truth. in this essay i assert that maintenance of status quo law school curricular design and delivery, along with the continued marginalization of live client clinic programs, and the discordant objectives of law schools as compared to the expectations for bar passage, serve to stifle the role of juridic practitioners in the service of justice. this essay has two objectives: 1) to address the serious and well-known shortcomings associated with law school pedagogy; and 2) to stimulate consideration of alternate pedagogical methods that draw upon student development theory to enhance what education scholars know about cognition. while the substance of this essay may apply to crosscultural experiences, it is deeply rooted in the pedagogical methods employed by law schools in the united states. furthermore, while i make reference to them, this is not an essay about innocence project clinics, or wrongful and unlawful conviction per se. the three articles referenced below, as well as discussion of wrongful and unlawful conviction courses, serve to reveal a deeply rooted pedagogical problem existing in the majority of us law schools. they will be used here for illustration purposes only. three recently published law review articles advocate for the implementation of live-client law school-based innocence projects as a heuristic tool that offers students interested in careers in criminal law real world legal experience.1 two of the articles focus attention on pragmatic considerations required of innocence project clinic directors,2 while the third moves the discussion further in the direction of desired pedagogical outcomes generated by student participation in innocence project investigation and litigation work.3 for current and prospective clinic directors each article provides invaluable schematic insight into ways of conceiving innocence projects, and the pedagogical reasons for doing so, from well-known and trusted clinic directors and legal scholars. 1 keith findley. the pedagogy of innocence: reflections on the role of innocence projects in clinical legal education, 13 clin. l. rev. 231 (2006); jan stiglitz, justin brooks, & tara shulman, the hurricane meets the paper chase: innocence projects new emerging role in clinical legal education, 38 cal. w.l. rev. 413 (2002); daniel s. medwed, actual innocents: considerations in selecting cases for a new innocence project, 81 neb. l. rev. 1097 (2003). 2 jan stiglitz, justin brooks, & tara shulman, the hurricane meets the paper chase: innocence projects new emerging role in clinical legal education, 38 cal. w.l. rev. 413 (2002); daniel s. medwed, actual innocents: considerations in selecting cases for a new innocence project, 81 neb. l. rev. 1097 (2003). 3 keith findley. the pedagogy of innocence: reflections on the role of innocence projects in clinical legal education, 13 clin. l. rev. 231 (2006) international journal of clinical legal education july 2009 10 in order for the good ideas espoused by keith findley, jan stiglitz, justin brooks, tara shulman, and daniel medwed (as well as the recently published reports encouraging dramatic changes to law school curricula in general) to generate the kind of change i believe is desired by each, a fundamentally different law school curriculum must take shape. at the present time, their good work, and the efforts of hundreds of others who direct and invest in the scholarship of live client innocence projects across the united states4, exists at the margins of law school curricula.5 why is it that given the relevance of twenty years or more of scholarship regarding the leading causes of wrongful and unlawful conviction, very few law schools offer an elective course on this topic, or better yet, integrate identification and analysis of procedural errors leading to unsafe verdicts across the curriculum? in the realm of criminal law and procedure i view an integrated three-year long discussion of how to identify and avoid errors to be important to a prospective lawyer’s training. why? because lawyers, both prosecutors and defense attorneys, must understand the multitude of ways cases can go bad in order to avoid them. they must be armed with the critical analytical skills necessary to deconstruct the political, economic, and cultural explanations for why the institutions responsible for investigating, prosecuting, and defending suspects charged with crimes engage in behaviors known to generate wrongful and unlawful convictions. to the best of my knowledge, these subjects are rarely discussed as part of the core law school curriculum in the us. rather, students are bombarded with an onslaught of black letter law that they need to memorize. this is particularly the case during the first year of law school with its emphasis on case law, statues, and rules.6 in short, “the first year experience as a whole, without conscious and systematic efforts at counterbalance, tips the scales, as llewellyn put it, away from cultivating the humanity of the student and toward the student’s re-engineering into a ‘legal machine.’”7 the failure of faculty to generate an integrated curriculum8 that links legal doctrine from one subject to the next speaks to an overriding concern among pedagogues that law school faculty will not be able to “provide thematic unity, provide comparative insights from other cultures, bring to bear new theoretical critiques, or integrate aspects of their scholarship into their teaching.”9 second and third year curricula are likewise burdened by the absence of a coherent integrated curriculum that stuckey et al. argues represents little more than “a series of unconnected courses on legal doctrine.”10 the problem for stuckey et al. is that faculty make little effort to integrate 4 innocence projects now exist in 47 states. 5 a. amsterdam. “clinical legal education – a 21st century perspective.” 34 j. legal educ. 612 (1984). there are law schools that have moved in an earnest way to incorporate clinics and clinic directors in a more wholistic way into the law school curriculum. in general, however, law school clinic directors are not eligible for tenure, and tend to be treated as second class citizens within law school departments. for examples of law schools that have sought to create an integrated curriculum see gonzaga university school of law, new york university, cuny university, yale law school, and southwestern law school. three states have recently moved to require new law school graduates to work as apprentices with law firms before commencing their practice (delaware and virginia), and to work directly with a mentor (georgia). 6 ronald chester. 1993. “reshaping first-year legal doctrine: the experience in the law schools.” 20 fla. st. u.l. rev. 599. 7 sullivan et al educating lawyers: preparation for the profession of law. the carnegie foundation for the advancement of teaching: 17. 8 by way of example, chester proposes combining contracts, torts, and property in a single course he calls civil obligation. civil and criminal procedure would be combined into a course on procedure. op. cit 19 at 599. 9 supra note 7 at 17. 10 roy stuckey et al. 2007. best practices for legal education: a vision and a road map. clinical legal education association: 17. 11 “the lord speaks through me” upper-division course themes, concepts, and ideas, nor do they “help students progressively acquire the knowledge, skills, and values needed for law practice.”11 to be fair, by way of socratic method law school faculty have attempted to introduce a semblance of dialogicality to classroom instruction. through intensive questioning, parrying, further questioning, and so on of law school students faculty attempt to probe more deeply the application of theoretical concepts to a set of fact patterns.12 application of the socratic method to classroom pedagogy is designed to teach students to “think like lawyers.”13 at its best, it avoids rote memorization, a practice that would scarcely generate the skill-base required of real world attorneys.14 following jackson15, the socratic method is beneficial in three ways “(1) it gives professors the ability to teach large bodies of students in an active manner; (2) it is instrumental in teaching cognitive skill development – to teach students to “think like a lawyer”, and (3) it helps students to hone their verbal skills.” that said, even those who support the application of the socratic method have articulated ways to improve it so as to avoid the negative consequences that have been identified as “terrorizing students,” “perpetuating gender-based discrimination,” “maintains hierarchy,” “encourages time wasting,” “induces student laziness,” and “fails to teach necessary skills.”16 others have argued that, in recognition of the failure on the part of faculty to effectively apply the method, at least some american law schools have slowly moved away from it.17 in short, what supporters of the socratic method appear to be arguing for is a method of dialogical discourse similar to what i will suggest is needed, complete with an emphasis on rigor and competent awareness of the application of abstract principles to real-world fact patterns. but as i will suggest in the second part of this essay, where application of the socratic method is privileged it serves as a master narrative that guides discourse in a direction most privileged by faculty. the terms and boundaries of socratic questioning are determined by faculty. and while this criticism has been acknowledged by supporters of the method,18 the critique typically centers on whether it biases gendered discourse.19 this is, of course, a significant consideration but is only one. the point that i will attempt to make throughout this essay is that a discourse that privileges authoritative voices couched in a master narrative perpetuates hierarchical political, economic, and cultural relations that include gender, but reach far beyond it. if i am correct, the institutional positioning of law school training as a system-reproducing steering mechanism will inhibit truly innovative pedagogical practices. 11 id at 17. 12 my thanks to keith findlay and colin starger for reminding me of this important pedagogical practice. 13 susan sturm and lani guinier. 2007. “the law school matrix: reforming legal education in a culture of competition and conformity.” 60 vand. l. rev. 515. jeffrey d. jackson. 2007. “socrates and langdell in legal writing: is the socratic method a proper tool for legal writing courses?” 43 cal. w. l. rev. 267. 14 michael vitiello. 2005. “professor kingsfield: the most misunderstood character in literature.” 33 hofstra l. rev. 955; david garner. 2000. “socratic misogyny? – analyzing feminist criticisms of socratic teaching in legal education.” 2000 b.y.u.l. rev. 1597. 15 jeffrey d. jackson. 2007. “socrates and langdell in legal writing: is the socratic method a proper tool for legal writing courses?” 43 cal. w. l. rev., 274. 16 id at 284–307. 17 orin s. kerr. 1999. “the decline of the socratic method at harvard.” 78 neb. l. rev. 113. 18 see supra note 15 at 299. 19 lani guenier, michele fine, and jane balin, becoming gentlemen: women, law school, and institutional change. boston: beacon press (1997); paula gaber, “just trying to be human in this place”: the legal education of twenty women, 10 yale j.l. & feminism 165 (1998); sarah e. theimann, beyond guiner: a critique of legal pedagogy, 24 n.y.u. rev. l. & soc. change 17 (1998). international journal of clinical legal education july 2009 12 on the occasions when i have been invited to speak to law schools about the subject of wrongful and unlawful conviction i’ve been struck by the lack of information students possess, regardless of whether they are 1-l or 3-l, when it comes to police and prosecutorial misconduct, the use of jailhouse informants, junk science, false eyewitness identification, and false confessions. these are the now well-researched known causes of wrongful and unlawful convictions. add to that list a host of other related reasons wrongful and unlawful convictions occur,20 and that are seldom if ever discussed during the three years a student spends in law school. when combined with a failure on behalf of law school faculty to educate students about the broader sociological and psychological reasons for institutional behaviors linked to miscarriages of justice, its no surprise why generation after generation we continue to witness replication of those behaviors known to generate unsafe convictions. so while an innocence clinic can right the injustice of wrongful and unlawful convictions through postmortem case analysis and litigation, and may even be able to penetrate young minds alerting them to the potential pitfalls involved in making and defending a case, the fact that discussion of the key structural and institutionally related causes of wrongful and unlawful convictions remain outside the dominant law school curriculum suggests that these ideas, and the faculty who engage the scholarship and teaching of them, will perennially appear as zebra mussels affixed to a large ocean vessel navigating the inland waterways separating “legitimate,” from “illegitimate” discourse. missing in the three innocence project clinic articles, as well as the bulk of legal scholarship addressing the issue of law school curricula and pedagogy in the united states, is theoretical articulation of the system reproducing function of law school instruction and consequent practice by its graduates. law school education as it is implemented in most law schools in the united states fails to empower its graduates with the necessary tools to promote critical analysis and comprehension of juridic institutions and their real-world functions, thereby making attainment of justice, conceived here as a the confluence of law and morality, a near impossibility.21 my guiding assumptions are by no means novel. numerous legal scholars, and the american bar association’s (aba) section on legal education & admission to the bar, the carnegie foundation for the advancement of teaching, and the recently released report by stuckey et al.,22 have painstakingly attempted to affect a change in entrenched law school curricula to promote 20 for example, 1) police interrogation tactics (not necessarily misconduct, but police training in reid school tactics designed to generate confessions); 2) plea bargaining; 3) pretrial discovery; 4) jury perceptions of defendant guilt based on the fact that they are defendants in a trial; 5) the direct connection doctrine (making it difficult for defendants to introduce evidence of a third party suspect); 6) admissibility of eyewitness identification; 7) factual guilt determinations on appeal; 8) harmless error; and 9) the expansive application of the felony murder rule. 21 see supra note 10 at 18–20. this is by no means a hyperbolic point. stuckey concludes that poor training and a dearth of commitment to emphasizing and properly training young lawyers to address the problems of the poor and middle classes results in our law schools failing to meet the needs of justice for the poor and middle classes. 22 an educational continuum report of the task force on law schools and the profession: narrowing the gap. (1992) known colloquially as the “mccrate report.” h t t p : / / w w w. a b a n e t . o r g / l e g a l e d / p u b l i c a t i o n s / onlinepubs/maccrate.html; r. stuckey. 2007. best practices for legal education: a vision and a road map. clinical legal education association. sullivan et al. 2007. educating lawyers: preparation for the profession of law. the carnegie foundation for the advancement of teaching. www.carnegiefoundation. org/files/elibrary/educating lawyers_summary.pdf 13 “the lord speaks through me” international journal of clinical legal education july 2009 14 teaching styles that are less adversarial in nature,23 more gender neutral,24 less race/ethnically and class biased,25 and more appropriately directed at teaching students using methods conducive to critical thought and analysis of complex legal problems.26 in short, “critics of the legal profession, both from within and without, have pointed to a great profession suffering from varying degrees of confusion and demoralization.”27 concerns over the sinking status of american lawyers in two decades of public polling data generated numerous thoughtful reflections regarding ways to improve ethical conduct and professionalism. as it relates to our concerns here, bennett claims that law schools should not relinquish a commitment to teaching “rigorous legal analysis,” but must make certain such analysis is accompanied by “other lawyerly skills, such as the emerging curricula in alternative dispute resolution [and, i would argue, wrongful and unlawful conviction], while making all of it morally relevant.”28 sullivan et al. contend that “the challenge for legal education [is] linking the interests of legal educators with the needs of legal practitioners and with the public the profession is pledged to serve.”29 concern about the quality of legal education in general has confounded legal scholars and practitioners for more than thirty years. for example, in 1983 gary bellow sounded the alarm: “al saks once said to me: ‘well, it seems to me that what you’re saying is that law school is empirically irrelevant, theoretically flawed, pedagogically dysfunctional, and expensive.’ and i am, of course, saying just that. when you add to these deficiencies, the incoherence of the second and third-year course offerings, the amount of repetition in the curriculum, the degree to which unacknowledged ideology pervades the entire law school experience and the fact that no graduate of american law school is able to practice when graduated, you have a system of education which, i believe, is simply indefensible.”30 23 lawrence krieger, the inseparability of professionalism and personal satisfaction (or why the wrong values will mess up your life), unpublished paper presented at the annual conference of the aals section on legal education, vancouver, b.c. (may 17, 2003); christophe g. courchesne, a suggestion of a fundamental nature: imagining a legal education of solely electives taught as discussions, 29 rutgers l. rec. 21 (2005). 24 supra note 19. 25 duncan kennedy, legal education and the reproduction of hierarchy, 32 j. legal education. 591 (1982); duncan kennedy, radical intellectuals in american culture and politics, or my talk at the gramsci institute, rethinking marxism, 1 (3): 101–129 (1988); duncan kennedy, legal education as training for hierarchy, in david kairys (ed.) the politics of law: a progressive critique. new york: basic books (1998): 54–75; karl klare, critical legal politics: left vs. mpm: the politics of duncan kennedy’s critique, 22 cardozo l. rev. 1073 (2001). 26 see todd d. rakoff, the harvard first year experiment, 39 j. legal educ. 491 (1989); anthony amsterdam, clinical legal education as 21st century experience, 34 j legal educ., 612 (1984). john pray and byron lichstein, the evolution through experience of criminal clinics: the criminal appeals project at the university of wisconsin law school’s remington center, 75 miss. l.j. 795 (2006); filippa marullo anzalone, it all begins with you: improving law school learning through professional self-awareness and critical reflection, 24 hamline l. rev. 324 (2001); laura i appleman, the rise of the modern american law school: how professionalism, german scholarship, and legal reform shaped our system of legal education, 39 new eng. l. rev. 251 (2005); keith a. findley, rediscovering the lawyer school: curriculum reform in wisconsin, 24 wis. int’l l. j. 295 (2006); ronald chester, reshaping first-year legal doctrine: the experience in the law schools, 20 fla. st. u.l. rev. 599 (1993); marie a. monahan, towards a theory of assimilating law students into the culture of the legal profession, 51 cath. u.l. rev. 215 (2001); david a. binder & paul bergman, taking lawyering skills training seriously, 10 clinical l. rev. 191 (2003). 27 sullivan et al. 2007. educating lawyers: preparation for the profession of law. the carnegie foundation for the advancement of teaching. 28 cited in stuckey op cit note 10 at 20. 29 sullivan et al. op cit note 27 at 2. 30 cited by stuckey in supra note 22 at 2. 15 “the lord speaks through me” in the sections that follow i’ll attempt to address bellow’s concern with the “unacknowledged ideology” that “pervades the law school experience.” it is this ideological influence that shapes bellows concern that law school is “empirically irrelevant, theoretically flawed” and is “pedagogically dysfunctional.” when combined with the current inadequate licensing requirements established by state bar examinations,31 it is little wonder that law school graduates are ill prepared to practice. in making the case that we must move beyond contemporary pedagogical philosophy and methods of training, i share with dewey the belief that “it is as if no one could be educated in the full sense until everyone is developed beyond the reach of prejudice, stupidity and apathy.”32 during a recently held teaching seminar attendees were asked to think about those pedagogical experiences that had the greatest influence on them.33 specifically, “think of a learning experience in which you felt you were involved, where everything “clicked,” a time where you felt empowered as a learner. or, think of a learning experience where there was a “disconnect,” a time when you felt helpless or frustrated as a learner.” i dare say that were i to pose this same question to readers of this essay the responses would be similar to those of my colleagues who attended the teaching seminar. here’s what i wrote in response to these questions: “most of my learning experiences as a student were frustrating because there was no involvement beyond class work. it was dissatisfying because it was too abstract. alienation from the process is what made the experience a failure.” recognizing that my response to this question had to fit into a small answer box next to it, there are no path-breaking insights. however, it’s clear that while i most certainly experienced influential teachers throughout my many years of education, the pedagogy was stultifying. strangely, what occurred to me as i tried to think about positive learning experiences were those memories i have of playing sports – baseball, soccer, and the martial arts. i was a competitive athlete through college so i can recall with clarity the methods used – orally introduce the skill to be learned, demonstrate the skill to be learned, and finally, execute the skill to be learned. it was a simple path involving the instructor in the first two levels of development, and the player in the third. once again, it was 1) introduce; 2) demonstrate; and 3) execute. einstein draws a similar analogy when discussing his education in the german gymnasium. upon leaving the gymnasium and entering a cantonal school outside of zurich, einstein was exposed to the pedagogical philosophy of johann heinrich pestalozzi. pestalozzi was an educational reformer who believed that the path to real learning was by having students “visualize images.” sounding much like the montessori method, pestalozzi believed that learning “began with hands-on observations and then proceeded to intuitions, conceptual thinking, and visual imagery.”34 for einstein, this method of teaching and learning was far superior to his experience in the 31 society of american law teachers statement on the bar exam: july 2002, 52 j. legal educ. 446; c. cunningham. 2005. “the professionalism crisis: how bar examiners can make a difference.” 74 the bar examiner 6; w. kidder. 2004. “the bar examination and the dream deferred: a critical analysis of the mbe, labor market control, and racial and ethnic performance disparities.” 29 law and soc. inquiry 547; d.j. merritt, l.l. hargens and b.f. reskin. 2000. “raising the bar: a social science critique of recent increases to passing scores on the bar exam.” 69 u. cinn. l. rev. 929. 32 joseph ratner. 1939. intelligence in the modern world: john dewey’s philosophy. new york: modern library: 605. 33 northern arizona university teaching seminar 2008: creating significant learning experience for students in gateway classes. may 13–15, 2008. 34 walter isaacson. einstein: his life and universe. new york: simon & schuster. 2007: 26. gymnasium, which was based on authoritarian administration of rote drills, memorization, and force-fed facts.35 far too often appearing like the german gymnasium of einstein’s day, law school pedagogy as it manifests in the united states, fails to properly prepare students for real-world practice. in its failure, law schools must accept responsibility for their role in inhibiting the realization of justice. to accept responsibility would mean to acknowledge the shortcomings of current pedagogical practices and to redesign them in accordance with contemporary knowledge of student development theory. if we are truly committed to educating students to their civic and professional responsibility to promote justice we must change our current pedagogical paradigm. einstein stated, “the significant problems we face cannot be solved at the same level of thinking we were at when we created them.”36 what is unique with regard to the approach that i bring to this discussion is the application of postmodern and lacanian insights, and the sociology of social reproduction through education. contextualizing this discussion through these lenses accomplishes two prevailing goals. first, it theoretically locates the more than a century old law school curriculum within its proper political, economic, and cultural context to view it as a system reproducing steering mechanism designed to maintain status quo institutional arrangements.37 the second reason for applying postmodern lacanian analysis, and social reproduction theory to analysis of law school curricula is to offer an alternative. by drawing on the sociology of education and locating analysis of law school curricula within the context of lacan’s master and university discourses i am positioned to better understand the ways in which law schools institutionally construct divided subjects, socialized through a master juridic narrative, who continue to perpetuate behaviors known to generate errors leading to wrongful and unlawful convictions. ii. an integrated theory of legal education as hegemon for the last two decades sociological and criminological theoreticians have attempted to bridge paradigmatic divides by developing integrated theories that are designed to analyze the full range of micro and macro influences constituting human behavior. for example, in sociology anthony giddens38 proposed his “structuration theory” which consisted of four levels of analysis that would generate an integrated qualitative and quantitative research model – i hermeneutic elucidation of frames of meaning; ii investigation of context and form of practical 35 id. 36 http://www.quotedb.com/quotes/11. 37 in times of crisis, institutions can be adjusted to respond to perceived crises in important state sectors. as an autopoitic (self correcting) state strategic selection mechanism, education is an institution that plays an important role in reproducing status quo hegemonic political, economic, and cultural relations. i contend that law school curriculum and pedagogy exist as a master narrative due to its continued role in shaping dominant culturel narratives articulating juridic normativity. the remainder of this essay will ouline the specific manifestations of this process, and the resulting marginalization of alternative or counter-hegemonic narratives such as those generated by live client innocence projects and other clinical programs. for a detailed account of state strategic selection as autopoisis see bob jessop, 1990. state theory: putting capitalist states in their place, university park, pa: pennsylvania state university press; rene b. bertramsen, jens peter folund thompsen & jacob torfing. 1991. state economy & society, london: unwin hyman; robert schehr, the criminal cases review commission as state strategic selection mechansim, 42 am. crim. l.r. 1289 (2005). 38 anthony giddens. 1984. the constitution of society: outline of the theory of structuration. berkeley: university of california press. international journal of clinical legal education july 2009 16 consciousness (the unconscious); iii identification of bounds of knowledgeability; iv specification of institutional orders. with each level giddens moved from the level of subjectivity, self-awareness, and interpretation, to an analysis of social systems. by far the most ambitious effort to generate integrated theory has taken place among postmodern criminologists. in 1995, bruce arrigo introduced the idea of postmodern theoretical integration.39 his work was followed in 1997 by dragon milovanovic who introduced the idea of theoretical integration as a way to advance postmodern theorizing about crime and crime causality.40 in 1998, gregg barak published his book, integrated criminologies.41 for arrigo, milovanovic and barak, the prevailing motivation for integration is enhanced understanding of the fluidity of social systems and the constitution of meaning. as opposed to engaging analysis of specific topics through the prevailing and necessarily limiting academic disciplines, barak encourages us to construct a new paradigm of interdisciplinarity that will enable us to be open to new goals.42 following arrigo, postmodern integration refers to, “relational, positional, and provisional function to interpret, reinterpret, validate, and repudiate multiple discourses and their expressions of reality construction in divergent social arrangements.”43 to meaningfully construct an analysis of a social problem “the researcher charts out the relations of the processes of social life that constitute the recursive pathways and tipping points in the integrative field of crime and crime control. in order to locate these social relations, it is argued, criminologists can best achieve this objective by unifying the visions and practices of both modernist and postmodernist criminology.”44 in postmodern criminology, milovanovic identifies eight dimensions along which to compare the differences between modernist and postmodernist thought.45 through his juxtaposition of these eight dimensions milovanovic makes an argument for an affirmative postmodernism that is at once critical, and transformative. there are two related but distinct theoretical paradigms that i believe are relevant to our understanding of education as an institution – lacanian discourse analysis, and social reproduction theory. from a conventional theoretical perspective it may seem that integrating these paradigms violates disciplinary specializations, levels of analysis, and possibly even the conceptual foundations upon which the theories are based. but as i think will become clearer as i move through this discussion, when presenting an assessment of student learning theory there are actually multiple levels of analysis at play and i am attempting to capture some aspect of each. for example, while lacan’s psychoanalytic semiotics emphasizes the subject’s perennial struggle for wholeness, a subjective level of analysis, he locates this process as part of a recursive relationship between hermeneutics and power structures (master and university discourses). theories of dialogicality and cognitive approaches to student learning also tend to focus on ways of promoting care and hope through authenticity in speech situations. the formative question following lacanian analysis is whether one can ever achieve “authenticity.” while it may be the case that subjects are always searching for ways to complete what may be a perennially illusive puzzle 39 bruce arrigo. 1995. “the peripheral core of law and criminology: on postmodern social theory and conceptual integration.” justice quarterly 12(30): 447–559. 40 dragon milovanovic. 1997. postmodern criminology. new york: garland press. 41 gregg barak. 1998. integrating criminologies. london: allyn and bacon. 42 id at 14. 43 id at 226. 44 id at 231. 45 supra note 40 at 3–24. the eight dimensions are: (1) society and social structure, (2) social roles, (3) subjectivity/agency, (4) discourse, (5) knowledge, (6) space/time, (7) causality, and (8) social change. 17 “the lord speaks through me” comprising their “true” self, that in no way suggests that subjects are inauthentic. when they speak from their narrative position as signifiers of one of the four lacanian discourses discussed below, they are clearly speaking with an authentic voice. whether by acknowledging this we also wish to suggest that authenticity is illusive is another question entirely. i do not believe it is. subjects process information imperfectly but they do so based on their experiences and cognitive abilities. through discourse (including speech), dialogical theory seeks to enhance meaning and promote an ethic of care. finally, social reproduction theory speaks to the sociological aspects of institutional hegemony and its reproduction of class, race/ethnic, gender, religion, and sexual orientation biases. it is important to avoid the easy “micro” and “macro” dualism so familiar to social science. the issue we are confronting in this paper – whether legal pedagogy enhances or diminishes opportunities for promoting justice – exists on a continuum from subjective interpretations of political, economic, and cultural stimuli, through analysis of education as a system-reproducing steering mechanism. as marx was fond of saying, “men make their own history, but they do not make it just as they please; they do not make it under circumstances chosen by themselves, but under circumstances directly encountered, given, and transmitted from the past.”46 the intention in this section is to integrate three theoretical paradigms toward a more thoughtful exposition of law school pedagogy. this section proceeds from a discussion of lacan’s four discourses, to dialogical theory, and concludes with the broader structural analysis of education offered through the lens of sociology. law school pedagogy as the discourse of the master law schools, like most american educational institutions, ascribe to a pedagogical philosophy based on the privileging of a master narrative. this narrative evolved out of modernist beliefs in the privileging of elite white culture as a way to distinguish it from popular or mass culture.47 this was particularly true of the emergence of the modern american law school, where pedagogical reform efforts like the introduction of the langdellian case-study method48 were driven by the “bar’s desire to entrench the status of a white, protestant, native-born ruling class – a desire exacerbated by the fear the late nineteenth-century influx of immigrants from sourthern and eastern europe would undermine the legal profession… this elite would have boundaries erected by ability and ethnicity – often assumed to be one and the same.”49 because it failed to take into consideration the political, economic, and cultural aspects of the recursive nature of law as applied to people and institutions, application of the langdellian model to the study of law significantly divorced law from justice.50 in an article published in 1943, laswell and mcdougal sought to challenge the positivist approach to the study of law devoid of justice.51 their primary emphasis was to teach students how to apply the law to public policy, but the courses they recommended spoke to a far ranging set of issues. 46 cited in george ritzer. 1988. sociological theory. new york: knopf: 487. 47 henri giroux. 1988. “postmodernism and the discourse of educational criticism.” journal of education. 170 (3): 5. 48 christopher columbus langdell was the first dean of harvard law school, and was responsible for introducing the case law method of instruction. the method was notable for its attempt to discern abstract rules and doctrines from a set of appellate cases that would enable students and practitioners to approach the study of law as a science. 49 laura appleman. 2005. “the rise of the modern american law school: how professionalism, german scholarship, and legal reform shaped our system of legal education.” new england law rev. 39: 254. 50 ronald chester. 1993. “reshaping first-year legal doctrine: the experience in the law schools,” 20 fla. st. u.l. rev. 599: 603. 51 harold laswell and myres mcdougal. 1943. “legal education and public policy: professional training in the public interest.” 52 yale l.j. 203. international journal of clinical legal education july 2009 18 titles for their courses included: “law and control,” “law and intelligence,” law and distribution,” “law and community development.”52 each course raised questions about the impact of the law on daily life, democracy and power, matters of respect, resource utilization, and the like. in short, theirs was an attempt to generate a counter-hegemonic juridic discourse that would alert students to the political and ideological uses to which law was frequently put. the intervening years, however, have witnessed no appreciable attempt to establish a counter-hegemonic juridic discourse as part of american law school curricula. the reason, i would argue, that there has been no curricular change is due to the dominant cultural interest in retaining hegemonic political and ideological viewpoints consistent with the preservation of advanced capitalist social relations. one way this is accomplished is through the proliferation of law as a master discourse. the discourse of the master, one of lacan’s four discourses,53 signifies life-long socialization to the truth claims, core assumptions, and ideological symbols of dominant culture.54 the discourse of the master commands allegiance to its authoritative voice, it is despotic.55 with respect to the law, the master discourse is “positive law as associated with the ideas of h.l.a. hart… the person (or institution) that engages in positive law is a master signifier in the lacanian sense. the addresser is she who determines the application of the law to the issue at hand by applying the hartian secondary rules of changing (creating), recognizing, and adjucating the law.”56 in lacan’s schema, the discourse of the master signifies a unidirectional transmission of information to be received by subjects. the second of lacan’s discourses, the discourse of the university, signifies the knowledge, reason, or expertise being transmitted.57 for our purposes the discourse of the master can be viewed as representing the authoritative voice of law school faculty, and the american bar association.58 the discourse of the university is signified in the law school curriculum. put simply, the discourse of the university consists of law as a body of knowledge.59 most important, the “discourse of the university can serve as a sophisticated way of making the master’s claims to brute power more palatable through veiling.”60 in short, for lacan the university discourse is meant to rationalize the motives of the master, something that schroeder would contend is “hardly news.”61 but to firmly establish her point, schroeder contends that even left-wing law professors and students share in the reproduction of the master narrative because they work within a single dominant paradigm, and that even the critical legal studies movement operated within the dominant narrative, thereby legitimating it.62 52 id at 256–261. 53 jacques lacan. 1991. l’envers de la psychanalyse. parais, france: editions du seuil. the four discourses are: the discourse of the master, the discourse of the university, the discourse of the hysteric, and the discourse of the analyst. 54 stuart henry and dragon milovanovic. 1996. constitutive criminology: beyond postmodernism. london: sage: 30. 55 christopher robert mcmahon. “hysterical academies: lacan’s theory of the four discourses.” http://www.educ.utas.edu.au/users/tle/journal/ar ticles/mcmahon/mcmahon.html: 6. 56 jeanne l. schroeder. 2000–2001. “the four discourses of law: a lacanian analysis of legal practice and scholarship.” 79 tex. l. rev. 15: 47. 57 id et 54. 58 while not a lacanian, pierre bourdieu makes a similar point with respect to juridical language. according to bourdieu, juridical language “bears all the marks of a rhetoric of impersonality and of neutrality.” the result is to produce “syntactic traits such as the predominance of passive and impersonal constructions. these are designed to mark the impersonality of normative utterances and to establish the speaker as universal subject, at once impartial and objective.” pierre bourdieu. 1987. “the force of law: toward a sociology of the juridical field.” 38 hastings l.j. 820. 59 supra note 55 at 31–32. 60 see schroeder op cit note 56 at 55. 61 id at 60. 62 id. 19 “the lord speaks through me” the receivers of information, our law school students, are what lacan referred to as divided or fading subjects. that is, there is always a “left out,” or that which is unspoken or marginalized in discourse. the “left out” manifests in at least two ways. first, it manifests as the inability of subjects to challenge the deliverer of the master discourse presented as the authoritative voice of the law. law school faculty disseminate jurisprudence to subjects dialogically positioned as inferior to the master. the second way that the “left out” manifests in discourse is through the marginalization of the “other” in the construction of juridic events. the discourse of the university constructs “defendants” as divided subjects based on definitions of illegality in the law. definitions of themselves, their lifeworld experiences, and the like, must comport with the ideologically constructed framework of the law. similarly, law school students may find that their experiences are marginalized in juridic discourse, thereby serving to generate what lacan referred to as the “not all,” the experience of being psychologically and emotionally divided. the psycho-emotional effects for american law school students and practitioners are real and dramatic. ogloff et al. address “problems arising from law school.” among the most prevalent are: high levels of stress leading to alienation and dissatisfaction; substance use and abuse; suicide among law students; and psychological problems.63 according to krieger, lawyers “have the highest incidence of depression of any occupation in the united states,” and “suffer other forms of emotional distress up to 15 times more frequently than the general population.”64 krieger attributes this in part to misplaced values that students first encounter in law school. for example, “values like money, power, and an uncompromising drive to win are displacing values like integrity, decency, and mutuality among many lawyers.”65 these misplaced values speak to a failure on the part of law schools to inculcate students with a properly articulated professionalism. krieger’s own analysis of the psycho-emotional effects of law school confirm earlier studies indicating that law school students who are “depressed or unhappy in the first year … remained so throughout law school.”66 he attributes these results to the competitive nature of law school and the values and motives it generates. moreover, krieger’s data indicates that “despite any efforts at these law schools to teach professionalism in the classroom, orientations, workshops, or other typical formats, the overall law school experience is likely to have an undermining effect on professionalism and career/life satisfaction.”67 sadly, krieger concludes by suggesting that the law school experience transforms the entering law school student into a very different person from the time they begin their studies to the time the complete them. in short, “they become more depressed, less service-centered, and more inclined toward undesirable, superficial goals and values.”68 to remedy the problem associated with constructing divided subjects law schools should generate a “framework for analyzing discursive formations which renders the human subject polycentered and polyvocal, where subjects find an abundance of discursive formations within which to embody desire to construct self, others, and society.”69 63 james r. p. ogloff, david r. lyon, kevin s. douglas, and v. gordon rose. 2000. “annual nebraska survey & survey of legal education: article more than “learning to think like a lawyer:” the empirical research on legal education.” 34 creighton l. rev. 73. 64 lawrence krieger. 2005. “the inseparability of professionalism and personal satisfaction: or why the wrong values will mess up your life.” 11 clinical l. rev. 427. 65 id at 427. 66 id at 426. 67 id at 434. 68 id at 434. 69 supra note 55 at 34. international journal of clinical legal education july 2009 20 application of a postmodern analysis inspired and informed by lacan’s four discourses to assessment of contemporary law school pedagogy is especially provocative and insightful. when conceived as the discourse of the master, law school pedagogy situates law school faculty as the “master and producer of knowledge as power demanding the recognition of his [sic] autonomy at the expense of the perversity of students’ desire.”70 for the master, education “involves an initiation through pain that thereby ‘civilizes’ the desire of students who would otherwise remain feral.”71 for their part, students are expected to demonstrate noticeable appreciation of the knowledge and power of the master, and to sublimate their desire to challenge or refute the master’s knowledge. it is in this way that the discourse of the master is the ‘tyranny of the allknowing and exclusion of fantasy [where we experience] the retreat of subjectivity.72” the basic law school experience, argues kennedy, is a “double surrender: to a passivizing classroom experience and to a passive attitude toward the content of the legal system.”73 for example, in his juxtaposition of “cold” and “hot” cases, kennedy describes the typical first year law school experience as one where students are generally presented with cold cases that are “technical, boring, difficult, [and] obscure legal cases,”74 along with hot cases that are more factually interesting and constituted by moral and ethical questions of significance, and where judicial decisions are so outrageous that students are compelled to passionately argue. unfortunately, argues kennedy, there is little patience in law school pedagogy for passionate argument. in fact, students who are driven by moral and ethical concerns to address the key facts raised in hot cases risk isolation. this is partly due to the fact that the master narrative is designed and administered to delegitimate passionate or emotive responses opting instead for a dispassionate, rational approach. what is needed, argues kennedy, “is to think about law in a way that will allow one to enter into it, to criticize it without utterly rejecting it, and to manipulate it without selfabandonment to their [the student’s] system of thinking and doing.”75 furthermore, metz contends that “law professors, acting as vigilant guardians of the established legal order, patrol the “borders” of these patterns of permissible and impermissible subjects, these privileged forms of rule-based and analogical reasoning,” with the resulting effect being “the voices actually heard and silenced in the classroom also reproduce these patterns, forms, and indifferences.”76 it is in this way that students themselves contribute to their own subjugation in law classrooms. in lacan’s schema, the discourse of the master is juxtaposed to the unsettling rhizomatic discourse of the hysteric, the student [and sometimes faculty member] who refuses to bend to the will of the discourse of the master or of the university. the discourse of the hysteric is “the challenge to or critique of the other discourses.” it is the discourse of the interrogator.77 students who speak through the discourse of the hysteric are more likely to challenge conventional university discourses to engage in real experiential education. these students are divided subjects who recognize and act on what they perceive to be the “left out” in juridic discourse. for schroeder, following zizek, the hysteric “constantly asks the big other, “che voui,?” “what do 70 supra note 40 at 7. 71 id. 72 rose and mitchell, cited in supra note 40 at 8. 73 duncan kennedy. 1998. “legal education as training for hierarchy.” in d. kairys (ed) the politics of law. new york: perseus books 54–75: 57. 74 id at 57–58. 75 id at 62. 76 brook k. baker. 2000. “language acculturation processes and resistance to in “doctrin” ation in the legal skills curriculum and beyond: a commentary on mertz’s critical anthropology of the socratic, doctrinal classroom.” 34 j. marshall l. rev. 131: 137. 77 see schroeder op cit note 56 at 72. 21 “the lord speaks through me” you want (i.e., from me)?” “what do i lack?,” “just tell me what i need to do, to say, to be, in order that you will desire me back – recognize me as a speaking subject.”78 according to mcmahon, “hysterical” law school students would raise questions that are “unrealistic, paranoid, delusional, hypochondriac, unstable, fluxatious, [and] troublesome.” moreover, and most important as it pertains to quality experiential law school education, “hysteria violates textual and disciplinary codes, rules, conventions, modes of production, technologies of knowledge, discursive bounds or limits.”79 in short, the hysterical student (in lacanian terms) is potentially subversive. through hysterical discourse, the subject will learn about what it is that she lacks and must procure in order to become a part of dominant culture. she will also learn what is lacking in dominant culture, thereby allowing her to challenge the methods of law school pedagogy with its emphasis on competition, gender, ethnicity, and class marginalization, rote memorization, mind-numbing lecture, and status quo curricula. she will challenge the law school to generate a real-world experiential education that includes lively dialogue among students and faculty who, rather than approach texts as gospel, will engage them with new ideas and fresh perspectives. she will demand that law school faculty make the materials politically, economically, and culturally relevant. she will resist efforts on behalf of law school faculty to quell passionate articulation of key moral and ethical issues arising in hot cases. to conclude, “the hysteric’s discourse enables us to identify how the substantive content that has been excluded from the law serves to harm the subjects subjected to the law.”80 as dogmatism wanes, a counter-hegemonic creativity with regard to problem-solving becomes the primary emphasis. if properly applied lacan’s four discourses can enable us to understand why law school pedagogy operates as it does, and can open up new ways to approach it. if adopted, a postmodern and lacanian-inspired law school pedagogy would appear dramatically different. following girioux, this is because a postmodern emphasis refuses forms of knowledge and pedagogy wrapped in the legitimizing discourse of the sacred and the priestly, its rejection of universal reason as a foundation for human affairs, its claim that all narratives are partial, and its call to perform a critical reading on all scientific, cultural, and social texts as historical and political constructions provide the pedagogical grounds for radicalizing the emancipatory possibilities of teaching and learning as part of a wider struggle for democratic public life and critical citizenship.81 long ago, american pragmatist, john dewey, made the prescient observation that much of what passed for pedagogy in the united states was really a matter of infusing teachers with the authority necessary to effectively establish control over classroom content and behavior. for it was clear to dewey that entering a classroom as an “individual” would not be enough to generate the aura of expertise necessary to legitimate the teacher as expert. the teacher needed to enter the classroom wearing the cloak of authority. or as dewey suggested, “they clothe themselves with some tradition as a mantle, and henceforth it is not just “i” who speaks, but some lord speaks through me. the teacher then offers himself [sic] as the organ of the voice of a whole school, of a finished classic tradition, and arrogates to himself [sic] the prestige that comes from what he [sic] is the spokesman for.”82 american law schools approach pedagogy in much the same way and have done 78 id at 56: 82–83. 79 supra note 40 at 10. 80 schroeder op cit note 56 at 86. 81 supra note 47 at 26. 82 joseph ratner. 1939. intelligence in the modern world: john dewey’s philosophy. new york, modern library: 623. international journal of clinical legal education july 2009 22 so for more than a century. whether they are aware of it or not, contemporary law school faculty continue to channel the pedagogical method established by the law school “lord,” christopher columbus langdell, and his emphasis on learning to become a lawyer through case analysis, memorization, and intensive competition. through references to the lacanian discourse of the university appearing as canonical texts, statutes, cases, and rules (each of which is likely to be foreign to most of the students in the room) the teacher’s cloak, a master discourse, immediately identifies her as part of a tradition of jurisprudential thought and the authority standing before them. still, questions may be raised regarding whether there is a real problem with a curriculum designed in this way. for some, they may be wondering, “so what?” the answer to the question, “so what?,” was provided by dewey who was among the first to identify what contemporary social scientific scholars have subsequently written volumes about, that “suppression of the emotional and intellectual integrity of the pupil is the result [of an authoritarian pedagogy]; their freedom is repressed and the growth of their own personalities stunted.”83 rather than an emphasis on the creation of hierarchy leading to docility in the classroom, the teacher must use the skills at her disposal to steer students toward “the conditions that arouse curiosity.”84 for dewey, as would be the case for many generations of future pedagogues, including a now well established clinical legal pedagogy, the way to true knowledge was through experiential education that is informed by the need for a polycentered, polyvocal discourse. “education” is an empty signifier: social reproduction as a concept, “education” is an empty signifier, meaningless without explication. and while politicians, media analysts, and education activists commonly extol the virtues of “quality education,” seldom is an effort made to operationalize what is meant by the concept. perhaps it is presumed that when one speaks of education it is apparent what is meant. but as with all hegemonic institutions, political and ideological influence generates a popular sense of the “matter of fact” to the point where there doesn’t appear to be a need for further explanation. it is this aspect of education that imparts to it its greatest hegemonic authority. law school pedagogy has been notoriously bereft of theoretical articulation of the goals to be achieved, the issues to be addressed, and the best practices for developing legal practitioners skilled at avoiding what schopenhauer referred to as the “eddies of misunderstanding.”85 lamenting the dearth of theorizing about law school clinical pedagogy has been ongoing since the 1970s,86 and continues to the present.87 83 id at 623. this is precisely the point made by rose and mitchell cited in note 40 above. exposure to a “tyrannical” master discourse will, by design and by effect, inhibit subjectivity. 84 id at 618. 85 cited in z. bauman, 1978. hermeneutics and social science. new york: columbia university press: 194. 86 g. bellow. 1973. “on teaching the teachers: some preliminary reflections on clinical education as methodology.” in clinical education for the law student: legal education in a service setting. st paul: west publishing. w. sullivan, a. colby, j. welch wegner, l. bond, and l. shulman. 2007. educating lawyers: preparation for the profession of law. the carnegie foundation for the advancement of teachers. www.carnegiefoundation.org/files/elibrary/educatingla wyers_summary.pdf. r. stuckey. supra note 4. 87 r. voyvodic. 2001. “considerable promise and troublesome aspects: the theory and methodology of clinical legal education. 20 windsor y.b. access just. 111. 23 “the lord speaks through me” 88 originally coined by c.wright mills, the sociological imagination requires people to understand social structures in order to gain greater insight into how their personal lives are affected by them. mills also stressed the need to place our experience in historical context to better understand who we are. as such, the purpose of sociology is to understand how society works, especially with regard to group behavior. most important for our purposes is that the sociologist refuses to accept common sense notions of how society works, but rather, seeks to unearth underlying forces that give shape to contemporary institutions. by way of metaphor, sociologists would generally agree to the following: “most of us are danced by strings about which we are unaware, and over which we have no control.” to expose these strings is our sociological mandate. moreover, the argument i am making here suggests that the educational experience signifies one of the key strings influencing every american. see p. worsley. 1992. the new introducing sociology. london: penguin; c. wright mills. mills, c. w.: 1959, the sociological imagination, london: oxford. 89 e. fromm. 1941. escape from freedom. new york: holt, rhinehart and winston: 286. 90 id at 286. 91 michael apple. 1990. ideology and curriculum. new york: routledge: 1. 92 samuel bowles and herbert gintis. 1976. schooling in capitalist america: educational reform and the contradictions of economic life. new york: basic books. 93 it is important to recognize that the opposite is also true. the educational experiences of upper middle class students prepare them to adopt roles of political, economic, and cultural responsibility that are typically unavailable to working class students. pedagogical styles typically privilege intellectual freedom, questioning, exploration, and the like. international journal of clinical legal education july 2009 24 sociological inquiry mandates avoiding easy prima faci understanding of important institutions and concepts. to fully understand institutions means adopting a sociological imagination.88 by adopting the sociological imagination we are better positioned to commence our examination of education and its effects on who we are and what we become. “in the first place,” suggests eric fromm, “we should ask ourselves what we mean by education.”89 for fromm, the purpose of education in every society is to prepare its youth to assume roles later in life. most important, education should “mold his [sic] character, that his [sic] desires coincide with the necessities of his [sic] social role.”90 for theorist michael apple, “education was not a neutral enterprise, that by the very nature of the institution, the educator was involved, whether conscious of it or not, in a political act.”91 for bowles and gintis,92 schooling in capitalist america replicates the structural conditions and role expectations necessary to prepare a large percentage of youth for working class jobs. classrooms in working class communities are structured in such a way that they resemble the power relations that await working class youth upon graduation from high school. rows of desks are neatly arranged in striated space to face the front of the classroom. students must raise their hands before speaking (or going to the bathroom, or doing anything else that is not explicitly recognized as being part of the scripted classroom performance). teachers signify future bosses who demonstrate to youth that their opinion is the only one of consequence, and any indiscretion will produce serious sanctions. these are lessons that working class students must learn if they are to survive in the authoritative and often capricious world of working class jobs.93 in short, for bowles and gintis teaching and education are clearly political acts. while bowles and gintis stimulated considerable debate among sociologists and education experts, their theory was criticized as a too narrow economic determinism that did not allow for variations in teachers, school districts, and students’ efforts to challenge more conventional pedagogy. still, as an explanation for social reproduction of class positions their work continues to resonate as one possible explanation among a complex set of institutional practices. embellishing on the bowles and gintis model, but avoiding its economic determinism, was french sociologist, pierre bourdieu. like bowles and gintis, bourdieu identified education as the prevailing institution responsible for social reproduction. according to bourdieu, cultural capital and habitus combine to assure cultural reproduction of one generation after another.94 cultural capital is the background, knowledge and skills accumulated during a lifetime. like financial capital, cultural capital is parlayed in political, economic, and cultural environments to procure access to power, position, status, and the like. language, humor, taste, wit, art, literature, food, clothing, each is suggestive of one’s accumulated cultural capital. related to cultural capital is habitus. in order to generate a reflexive sense of who we are in relation to others each of us internalizes our lifeworld experiences, that is, our expectations, aspirations, attitudes, and beliefs. these are what constitute our habitus. students exposed to those kinds of cultural capital most valued by dominant culture are likely to have a significant cultural advantage relative to those who are not. together, cultural capital and habitus significantly influence our educational experiences. for bourdieu, students emanating from culturally devalued class backgrounds experience education as a form of symbolic violence. unlike the more privileged student, working class and poor students, female students, gay and lesbian students, and ethnic minority students tend not to learn much about their experiences, or people who are like them, from their textbooks or classroom lectures. rather, by way of omission, their experiences are marginalized and thereby devalued. it’s not that textbooks berate students with working class backgrounds, the reproduction techniques are far more subtle than that. rather, they simply ignore them, their parents, their grandparents, their contributions to history, and so on. they are not present for students to recognize, take pride in, or even to criticize. they simply vanish from history. in short, education works to reproduce cultural stratification by valuing dominant cultural capital and marginalizing all others.95 mertz speaks directly to this point with respect to law school pedagogy.96 as if citing directly from bourdieu, mertz contends that “if students of color and female students tend to be more silent in these [law school] classrooms, then any differences these students bring with them in experience or background are not given voice in classroom discourse. to the extent that these differences in experience reflect race, gender, class, or other aspects of social identity, we again see aspects of social structure and difference pushed to the margins of legal discourse.” in what was a major contribution to the social reproduction literature, jay macleod argued that when faced with the overwhelming weight of poverty, and class and race/ethnic bias, youth in a low income chicago housing project leveled their aspirations,97 decidedly acting to withdrawal their 94 pierre bourdieu and jean claude passeron. 1977. reproduction in education, society, and culture. london: sage. 95 bourdieu applies his theorization of habitus and social reproduction to juridical fields. see supra note 56 at 805. 96 elizabeth mertz. 2000. “teaching lawyers the language of law: legal and anthropological translations.” 34 j. marshall l. rev. 91, 112. 97 macleod’s recognition of the dialectical interplay between structurally imposed obstacles to success, and his subjects’ active participation in psycho-emotionally withdrawing from normative expectations regarding upward mobility and the preparation needed to lay the foundation for it, make his a compelling analysis. with the privileging of “leveled aspirations” macleod builds upon the path-breaking work of paul willis who, in his 1977 publication of learning to labor, identified a similar pattern among working class white youth in england. in each case the author’s avoid easy linear explanations for social reproduction as imposed through education by revealing the active role played by the students themselves in the construction of a dialogic relationship with teachers, principals, and parents toward a negotiated rendering of the meaning of “education.” in each analysis it becomes clear that the students are not naïve about what is happening to them, they understand it well. they are under no illusions that they will in any way benefit from the kind of education being imposed on them. so, they level their aspirations in order to cope with the twin pressures squeezing them 25 “the lord speaks through me” commitment to education and any idea of occupational success.98 with great clarity, and what some may consider pragmatism, macleod’s white subjects, the hallway hangers, had no illusions about the life that awaited them. everyone they knew – extended and immediate family, friends, and neighbors – had lived the same basic life of poverty for as long as anyone could remember. what was the point of deferring gratification long enough to complete high school? education beyond high school was out of the question. these youth had thoroughly internalized their habitus in such a way that when confronted with the requirements and promise of a completed high school education they rebelled. for black youth, the brothers, the experience was initially different. as the first generation of young black students born to parents who experienced the successes of the 1960s civil rights movement, their lifeworld was constituted by stories of hard work, commitment to social change, improving race/ethnic relationships, and the promise of upward mobility. initially, then, despite their devalued cultural capital and overt structural barriers, the brothers were far more hopeful than the hallway hangers that things for them would be different. in a more recently published edition, macleod writes of revisiting the housing project to check up on the hallway hangers and the brothers.99 what he found was that, predictably, the hallway hangers continued to struggle with a life of poverty. to his surprise, however, he also found the brothers to have adopted far more critical attitudes toward upward mobility and life chances than he had witnessed in his initial set of interviews. why? they were shocked to experience structural obstacles to their opportunity to succeed, obstacles that they identified as both race/ethnically and class based. to wit, education is political, and education is ideological. regardless of the level (k-12, undergraduate and graduate), education is a hegemonic institution crafted to reproduce dominant political, economic and cultural relations. law schools, according to kennedy, are “intensely political places.”100 despite the apparent “trade school mentality,” and attention to “trees at the expense of forests,” kennedy is most concerned that the hidden component of law school is “ideological training for willing service in the hierarchies of the corporate welfare state.”101 law school is a system reproducing steering mechanism whose curriculum and teaching methods are designed to generate institutional actors who advance the interests of the powerful. in a provocative underground article by jerry farber in the late 1960s,102 the educational experience for most students in the united states appears analogous to foucault’s articulation of the institutional machinery designated to create docile bodies.103 for farber, as for foucault, (97 cont.) from below and above – their family and its class position, as well as their race/ethnic composition, and structural impediments to upward mobility. see paul willis. 1977. learning to labor: how working class kids get working class jobs. new york: columbia university press. 98 jay macleod. 1987. ain’t no makin’ it: leveled aspirations in a low-income neighborhood. boulder, colorado: westview press. 99 id at: 155–236. 100 supra note 67 at 54. 101 id 73. 102 j. farber. 1968. student as nigger. los angeles free press. http://www.soilandhealth.org/0303critic /030301studentasnigger.html: 1–19. 103 m. foucault. 1977. discipline and punish: the birth of the prison. trans. alan sheridan. new york: vintage. more will be said about the generation of docility later on this essay. briefly, for foucault, recognition of a new “political anatomy” beginning in the 18th century led to numerous innovations in many dominant institutions across europe to promote a technology of control. political anatomony refers to recognition of the myriad ways human beings can be controlled if their bodies can be manipulated by agents representing hegemonic powers. foucault suggests that “a body is docile that may be subjected, used, transformed and improved” (136). foucault’s discussion of the institutional manufacture of docile bodies emphasizes primary and secondary schooling. achieving the necessary discipline leading to docility required structural confinement, what foucault international journal of clinical legal education july 2009 26 dominant cultural institutions like education “teach you by pushing you around, by stealing your will and your sense of power, by making timid square apathetic slaves out of you – authority addicts.”104 how is this accomplished? for farber, and for the dominant thinking surrounding the scholarship of critical pedagogy from the 1970s on, the message is in the method. regardless of the substantive area being taught, what matters most with regard to establishing and maintaining control over students is the method of instruction used. beginning in kindergarten and continuing throughout a student’s educational experience, the method of instruction and the physical nature of the classroom conspire to produce docility and submissiveness, and above all a pathological commitment to please authorities.105 this extensive socialization period generates a strong desire on behalf of students to be told what to do. eighteen or more years of persistent emphasis on rulefollowing effectively generates docile bodies with a strong desire to please, but terribly ill prepared to take responsibility for their own ideas. so when we receive students into the academy as masters, ph.d, and jd candidates, why are we surprised when they tend to demonstrate little in the way of initiative regarding their own learning. by this time in their academic careers students tend to be mercenary about the work and its potential pay-off. graduates of higher education are technically skilled and intelligent enough to competently address the challenges they face. they are, however, ill equipped with enough fortitude or initiative to question in myriad ways, and for a hundred good reasons, the efficacy of their assignments.106 law schools condition students through participation in a set of rituals designed to enhance performance and competition.107 in this way, students participate in the complex set of relationships that come to socialize them into the profession. in the united states, the success narrative commences with consideration of law school admission. peak performance on the law school admissions test (lsat) is imperative for entrance to all law schools, with only the “best” students acquiring consideration from the top law schools.108 whether students are driven by a desire to improve the administration of justice, or by the competition, status, and eventual financial security that may accrue, each must participate in a shared experience of examinations, the pursuit of law review and clerkships, and job searches.109 in doing so, students participate in their own subjugation to the “cultural understandings of success and the formal and informal metrics that communicate those values.”110 but how could it be otherwise? the success narrative “constrains and structures every aspect of law school activity.”111 (103 cont.) referred to as a “protected place of disciplinary monotony” (141). institutions charged with delivering primary and secondary education are referred to as “discreet, but insidious and effective” (141). they are effective in the sense that they manipulate bodies to the point where they are more predictably malleable, easier to control. 104 supra note 91 at 4. 105 id at 6. see also, s. bowles and h. gintis. 1976. schooling in capitalist america. new york: basic books. 106 this is a recurring them for farber. see supra 91. 107 supra note 91 at 13. 108 the lsat examination serves as the primary obstacle for entrance to most quality law schools. the procedure itself can be cumbersome. applicants must prepare themselves for a four-hour test addressing logical reasoning, analytical reasoning, and reading comprehension. the test produces a scale from 120 – 180, with 180 being the highest possible score. upon arrival on testing day, students will be fingerprinted, and they will write a “certifying statement” attesting to their authenticity as a test taker. in short, the lsat examination presents a physical, psychological, intellectual, and emotional test. since so much is riding on successful completion of the test, to prepare, many students will enroll in lsat preparation courses that can cost as much as $3,000.00. in short, these students commence the process of competition and willing capitulation to the authority derived from law school admission before they ever enter the front door. 109 see sturn and guinier op cit note 13 at 523. 110 id at 525. 111 id at 537. 27 “the lord speaks through me” 112 e. fromm. 1965. the heart of men: it’s genius for good and evil. new york: harper and row. first published in english in: e. fromm, on being human, ed. by rainer funk, new york (continuum) 1994, pp. 99–105. http://www.erichfromm.de/e/index.htm 113 id. 114 supra note 91 at 11. 115 supra note 73 at 62. 116 see schroeder supra note 56 at 62. international journal of clinical legal education july 2009 28 it is in this way that education can be engineered in the service of necrophily – a regressive human quality that seeks the “suspension of growth” through continuous mind-numbing repetition and adherence to structures of authority, and an associated avoidance of boundary testing.112 constituted by sempiternal psycho-emotional dissonance caused by progressive and regressive impulses that both stimulate and inhibit “man’s search for meaning” and clearer understanding of subjective identity, human beings driven by power and the need for control as a way to satisfy their desire for self-awareness turn to necrophilia, narcissism, and what fromm refers to as incestuous symbiosis. since his articulation of necrophilia is what is most apropos of our experience with education i’ll focus only on it. fromm suggests that, by necrophilia is meant love for all that is violence and destruction; the desire to kill; the worship of force; attraction to death, to suicide, to sadism; the desire to transform the organic into the inorganic by means of order. the necrophile, lacking the necessary qualities to create, in his impotence finds it easy to destroy because for him it serves only one quality: force.113 students’ survival skills are well honed by the time they enter graduate school. they know what to do and say in order to “get by,” to “get the grades,” or “to impress that special faculty member” who in some measure can generate the prized grant-funded research, or serve as the conduit for a summer externship. in short, “there is very little shit he [sic] will not eat if there is something to be gained by it.”114 for most students it is the dank suffocating irrelevance of contemporary american education, including legal education, that is indicative of its necrophilia. an obsessive adoration of the status quo squeezes pedagogical and dialogic relationships into a narrow corridor framed by an overly excessive commitment to order, authority, control, teaching to the test, teaching to the bar, narrowness of mind, and docility. their education is irrelevant, not because they are disinterested in learning about the world, about their area of substantive interest, about themselves. if left to their own devices these would be the issues and ideas that would likely matter most to students. no, education is irrelevant because it fails to engage students in a dialogical process that leads them to real understanding of the world around them, their substantive interest, and themselves. law school education is necrophilic. while the skills that law school students learn are important (rules, issue spotting, case analysis, case holdings, etc.), they are instrumental, technical skills presented to students via a master narrative that presumes priestly omnipotence. legal rules and holdings, we are to believe, are the product of legal reasoning, rational thought, the science of law. this is inherently problematic because, as kennedy suggests, “rights discourse is internally inconsistent, vacuous, and circular.”115 it’s not that discussion of rights is the problem, but by discussing them in the context of a master narrative means that to “speak of rights is precisely not to speak of justice between classes, races, or sexes.116 moreover, these skills are taught through rote memorization in the static classroom setting devoid of messy real-world experience. 29 “the lord speaks through me” education is a commodity like any other found in a capitalist state. in order for a commodity to be valuable it must also be subjected to measurable quantifiable scrutiny. michael apple’s analysis of education reform movements in both the united states and the uk suggests that the management of education has given way to a market driven ideology. this has led to the position that “only that which is measurable is important,” or what apple refers to as an “audit culture.”117 the effects of the auditing or what could really be referred to as an actuarial model of education are significant insofar as they generate a “remarkably rapid erosion of democratically determined collective values and institutions.”118 transitioning all aspects of dominant culture into marketbased economic analysis denigrates civil society by channeling our lifeworld experiences, dreams, and desires into an economic logic governed by “market realities and relations.”119 in short, an audit culture devalues public goods and services like those that potentially may emerge through quality education. finally, apple suggests that those administrators responsible for implementing the new auditing approach to education see themselves as “moral crusaders” who are “endlessly responsive to ‘clients’ and ‘consumers’ in such a way that they are participating in the creation of a newly reconstituted and more efficient set of institutions that will ‘help everyone’….”120 most important as it applies to my argument here is the fact that a vigorous competition for credentialing has emerged as part of this process. stratification via credentialing is beneficial to this new class of academics and managers because it legitimates their place as purveyors of knowledge. but it also means that “the return of high levels of mandatory standardization, more testing more often, and constant auditing of results also provides mechanisms – an insistent logic – that enhance the chances that the children of the professional and managerial new middle class will have less competition from other students.”121 it is in his analysis of education’s transition to auditing that apple joins bowles and gintis in their economic analysis of the social reproduction mandate of education. iii. student development theory and experiential education an alternative to conventional law school pedagogy as a way of teaching students how to prepare for the practice of law has emerged over the last century in the form of legal clinics. because this is a now well-established literature i will not repeat it here.122 besides, it is my contention that (and this is borne out by the hundreds of articles written over the last decade addressing the subject of clinical legal studies) without substantive changes to the now well ingrained law school pedagogy, legal clinics and the philosophical and pedagogical epistemology that guide them will continue to operate as appendages to more mainstream politically and ideologically driven pedagogy. as such, their relegation to marginalized status in law schools means that live client clinics, including innocence project clinics, while offering a glimmer of dialogical praxis, signify but a ghettoized version of it. in short, the three articles mentioned in the first section of this paper that make the strong claim for the value of live client innocence projects, while noteworthy in their substance and 117 michael w. apple, education, markets, and an audit culture, 47 crit. quart. (2005): 11. 118 id at 13. 119 id. 120 id at 21. 121 id. 122 douglas blaze. 1997. “déjà vu all over again: reflections on fifty years of clinical education.” 64 tenn. l. rev. 939. rose voyvodic. 2001. “considerable promise and troublesome aspects: theory and methodology of clinical legal education.” 20 windsor y.b. access just.: 111. commitment to quality experiential education, are, without dramatic alterations to contemporary pedagogical practices, unlikely to succeed in the way the authors intend. it appears that advocates of law school clinics who recognize that there are serious flaws in contemporary pedagogy with regard to preparing students to actually practice law have attempted to graft on to conventional practices a critical heuristic device to at least provide some exposure to real world problems that students are likely to encounter upon graduation. and while laudable in their effort, because the dominant political and ideological driving force behind what constitutes legal pedagogy is the perpetuation of intense competition, exclusion, elitism, and a positivist commitment to viewing law as a science,123 the effect of clinical programs to emphasize an ethic of care and hope is likely to be minimal. by way of juxtaposition, clinical legal education may bring in to sharper focus the question of whether law is more like science, or like art.124 it may raise questions about whether doctrinal principles taught by careful reading of appellate materials (langdellian method) should be the preferred method for preparing practicing lawyers, or whether a method more closely aligned with medical school pedagogy,125 or one that approximates graduate studies in the social sciences is more efficacious.126 to truly generate a critical legal pedagogy will require implementation of a non-linear, dialogical pedagogy that privileges experiential education where the dominant philosophical and pedagogical emphasis is to expose students to their responsibility for improving the quality of life of those around them. the structural limitations imposed on law school clinicians tend to generate a clinical pedagogy based on experiential learning. learning , argues moliterno, can happen anywhere and does not require 123 while i stand by the suggestion that the contemporary law school curriculum as implemented in most us law schools is consistent with this description, there are law schools, and law school faculty, who readily acknowledge a more nuanced approach to the study of law. one very recent example is the creation of the university of california at irvine school of law. the new dean of this law school, erwin chemerinsky, has sought to create a law school faculty constituted by disciplinary diversity. for example, faculty have been drawn from the social and behavioral sciences, and the humanities. such a move is indicative of a more politically, economically, and culturally nuanced approach to jurisprudence. 124 morris bernstein. 1996. “learning from experience: montaigne, jerome frank and the clinical habit of mind.” 25 cap. u.l. rev. 517. 125 the medical school model has for a very long time served as a beacon of pedagogical inspiration for clinical legal scholars. with its emphasis on combining analytical and experiential training, legal scholars have argued that a version of the medical school model may be well situated for adoption by law schools to improve professional legal training. see jerome frank. 1933. “why not a clinical lawyerschool?” 81 u. pa. l. rev. 907; kandis scott. 2006. “non-analytical thinking in law practice: blinking in the forest.” 12 clinical l. rev. 687; james moliterno. 1996. “legal education, experiential education, and professional responsibility.” 38 wm and mary l. rev. 71; morris bernstein. 1996. “learning from experience: montaign, jerome frank and the clinical habit of mind.” 25 cap. u.l. rev. 517. 126 graduate work in the social sciences is marked by small seminar sessions of roughly fifteen students and a faculty member where in-depth discussion of iconic texts, contemporary scholarship, and data is the norm. students are encouraged to generate thoughtful reflexive interpretations of each to come to understanding of the current state of the discipline. typically, while instructors require students to correctly understand the internal theoretical and conceptual claims made by social scientists to make certain students are clear about what the authors’ claims are, students are encouraged to place social science scholarship in its broader historical context. in short, students are required to engage in dialogue with the authors of leading scholarship and to generate interpretations of that work based on the student’s knowledge of the discipline, and their own subjective understanding of it. because of the influence of social psychology in the early twentieth-century (and an awareness of the contingent nature of identity construction), and later, postmodern discourse analysis which challenged modernist truth claims, social science faculty have been influenced by a body of theory that encourages approaches to texts as open for interpretation in a way that law school faculty have been slower to adopt. international journal of clinical legal education july 2009 30 teachers or mentors.127 what students need most is experiential education. by way of contrast with learning, education “consists of a designed, managed, and guided experience.”128 quality clinical legal education should expose students to “the real impact of the legal process upon members of society; the vicissitudes of poverty; the complexities between persons occupying various roles within the lawyering process and; the values embedded in the legal process.”129 citing the influence of dewey, moliterno suggests that “experiential education proceeds through the process of synthesis [whereby] students are exposed to the theory of an activity; they experience the activity; they reflect on the relationship between the theory and the experience and synthesize the two; they form a new or modified theory; they test it by experience, and so on.”130 clinical mentoring programs, summer jobs, unsupervised externships, moot court competitions, and participation on law reviews, for example, do not generate education, but are clearly opportunities to learn.131 in place of these programs moliterno suggests that what is needed is a three-year long simulated law practice. the simulations will provide experiential education involving a wide variety of thought processes associated with activities other than the application of law to facts. this simulation will cover the ethics and law of lawyering using a combination of methodologies that address the same thought processes addressed in the cases and materials courses, and the clinical courses.132 despite his acknowledgement of the decades of improvements and innovations introduced by simulation teaching and externships, and his forceful and well-argued recognition of the need for changes in legal education, moliterno acknowledges that “no widespread, systematic connection between experiential education and professional responsibility law teaching has occurred.”133 moliterno’s recommendation that law schools implement a three-year simulated law practice is reminiscent of the apprenticeship model that predates academic training in the united states, but with clear pedagogical differences. law office apprenticeship was the prevailing method of legal education prior to the establishment of the first university-based law schools. and while it may be tempting to argue for a return to an apprenticeship model, there are sound pedagogical and professional reasons for not doing so. the bulk of my reasoning will appear in the next section, as i attempt to describe a way forward that is based on insights drawn from dialogical method and student development theory. kandis scott articulates a creative vision for attaining experiential education, one that is similar to moliterno’s, but arrives at it using a different analytical frame constituted by non-linearity, chaos, and rhizomes to make her case for the practical benefits of non-analytical thinking in the practice of law.134 in challenging the modernist inspired positivist approaches to the study of law, scott argues that because a client’s problems are often multivariate a “less logical approach that embraces 127 james e. moliterno. 1996. “legal education, experiential education, and professional responsibility.” 38 wm and mary l. rev. 71. 128 id at 78. 129 rose voyvodic. 2001. “considerable promise and troublesome aspects: theory and methodology of clinical legal education.” 20 windsor y.b. access just.: 113. 130 moliterno op cit note 127 at 81. 131 id at 79. 132 id at 76. 133 id at 94. as with so many who write in the clinical legal education tradition, moliterno’s failure to analyze the reasons why there has been no systematic connection between experiential education and professional responsibility law teaching despite a century’s worth of scholarly acknowledgement of the value of clinical and apprenticeship opportunities, speaks to the limitations of legal scholarship regarding this issue and has been the primary focus of this essay. 134 kandis scott. 2006. “non-analytical thinking in law practice: blinking in the forest.” 12 clinical l. rev. 687. 31 “the lord speaks through me” the complexity of clients’ problems produces better results.”135 following a postmodern line of critique characteristic of the work of deleuze and guattari,136 baudrillard,137 derrida,138 arrigo,139 henry and milovanovic,140 schehr,141 arrigo and schehr,142 schehr and milovanovic,143 arrigo, milovanovic and schehr,144 and brion,145 scott flirts around the edges with a now well established attempt to understand social problems, especially socio-legal problems, using affirmative postmodernism and chaos theory. in doing so (albeit incompletely), she argues that “transient, shifting, disconcerting and ambiguous situations are the norm.”146 given the nonlinearity of most cases practitioners will encounter, scott argues for a method of legal education that will prepare students to “understand the role of intuition in legal representation.”147 intuition, argues scott, is applied by the best legal minds when facing difficult cases and emerges unconsciously based on a storehouse of skills and experience honed over time. intuition does not arise from law school pedagogy, quite to the contrary, it emerges as a result of active engagement with case materials. in short, the typical langdellian approach taken by law schools, one that emphasizes logical processing of statutes, rules, principles, propositions, and case law transmitted through books will never generate the kind of intuition necessary to effectively problem solve actually existing irrational non-linear cases. scott admits that there are many obstacles to teaching students how to approach problems in a non-linear way that values intuition,148 and suggests that more frequent opportunities for students and teachers to work on real cases and be informed by multiple experiences is a good place to start. scott’s method speaks to the heart of dialogicality, and can be improved by including community experts (police officers, prosecutors, public defenders, judges, forensic scientists) as part of the investigation process and/or training. while i share scott’s emphasis on complexity and a rhizomatic approach to understanding complicated problems, in making her point she replaces one essentialism with another. intuition doesn’t appear tabula rasa, even under the best of apprenticeship circumstances. even kennedy, whom i’ve cited above, recognizes the need for students to generate certain skills (issue spotting, rules of procedure, etc.) that would then enable them the flexibility to apply their accrued international journal of clinical legal education july 2009 32 135 id at 688. 136 gilles deleuze and felix guattari. 1987. a thousand plateaus. minneapolis, mn: university of minnesota press. 137 jean baudrillard. 1983. simulacra and simulations. trans. p. foss, p. patton, and p. beitchman. new york: semiotext(e). 138 jacques derrida. 1981. positions. chicago. university of chicago press. 139 bruce arrigo. 1993. madness, language, and the law. albany, ny: harrow and heston. 140 stuart henry and dragon milovanovic. 1996. constitutive criminology: beyond postmodernism. london: sage. 141 robert carl schehr. 2000. “from restoration to transformation: victim offender mediation as transformative justice.” mediation quarterly. 18 (2):151–169; robert carl schehr. 1998. “language and the law: a critique of arrigo’s psychoanalytic semiotics.” social pathology, 4 (1): 39–48. 142 bruce arrigo, and robert carl schehr. 1998. “juvenile offenders and restorative justice: toward a critical analysis of victim offender mediation.” justice quarterly, 15(4): 629–666. 143 robert carl schehr, and dragon milovanovic. 1999. “conflict mediation and the postmodern: chaos, catastrophe, and psychoanalytic semiotics.” social justice, 26 (1): 208–232. 144 bruce arrigo, dragon milovanovic, and robert carl schehr. 2005. the french connection in criminology. suny press. 145 d brion. 1995. the chaotic indeterminacy of tort law: between formalism and nihilism.” in d. caudill and s. gold (eds) radical philosophy of law. new jersey: humanities press: 179–199. 146 supra note 134 at 689. 147 id at 689. 148 in her analysis of the marginalization of law school clinical education and the faculty hired to teach it, voyvodic makes it clear that the framing of clinical legal education as “skills training” by law school faculty and administrators makes it difficult to explore more unconventional, non-hierarchical teaching methods. see supra note129 at 126. experience to complex issues. by recognizing that it’s not necessarily the skills that law school students learn, but often how they are taught, that generates the kind of criticism being leveled in this essay, scott’s frame can be rehabilitated. scott’s emphasis on intuition receives theoretical support from stuckey who contends that clinical education and mature skill acquisition moves from a distanced manipulation of clearly delineated elements of a situation according to formal rules toward involved behavior based on an accumulation of concrete experience. over time, the learner gradually develops the ability to see analogies, to recognize new situations as similar to whole remembered patterns, and finally, as an expert to grasp what is important in a situation without proceeding through a long process of formal reasoning.149 stuckey continues by suggesting that in order for students to fully engage in experiential education they must continuously be exposed to a four stage process that includes: experience, reflection, theory, and application. a way forward in this final section of the paper i will offer two related but distinct assessments of a possible way forward to revised law school pedagogy. first, i will present a discussion of the relevance of dialogicality. dialogicality is related to the second part of this analysis, an emphasis on student development theory. i will conclude this section with a brief description of a pedagogical model that may be used to replace the more conventional law school teaching method. however, it is my firm belief that by supplying the necessary tools for deliberation over the multiple ways to construct thoughtful and effective pedagogy readers can and should invest their time and energy in crafting one that suits their respective courses. with that in mind, in the sections that follow i provide considerable discussion of those criteria now recognized to be associated with generating good courses. at both an institutional and personal level, american law schools and law school faculty must invest in the resources, time, and energy necessary to dedicate themselves to professional development leading to higher quality pedagogy. none of the innovations in teaching discussed below will happen without earnest commitment at each level. dialogical method in the context of this essay, the urgency of dialogical interactions speaks to the need for juridic actors in the united states to engage in dialogical relations as a way to come to a more comprehensive understanding of who we are, all the while enhancing our understanding of those from distinctively different cultures. in this context i am speaking of dialogue to mean “a willingness to enter conversation about ideas, taking a position in openness that can still be altered given additional information; a commitment to keep relationships affirming, even as disagreements over theory occur; and a willingness to ask value questions about information application.”150 to further clarify the key ingredients necessary to promote dialogical intercourse, arnett summarizes rob anderson’s explication of “presence; unanticipated consequences; otherness; vulnerability; mutual implication; temporal flow; and authenticity.”151 in short, dialogical interaction means 149 roy stuckey. 2007. “teaching with purpose: defining and achieving desired outcomes in clinical law courses.” 13 clinical l. rev. 811. 150 ronald arnett. 1992. dialogic education. carbondale, il: southern illinois university press: 10. 151 id at 11. 33 “the lord speaks through me” “reaching out to the other in an authentic fashion, willing to try to meet and follow the unpredictable consequences of exchange.”152 consistent with points raised earlier in this essay, arnett acknowledges three primary obstacles to dialogical education fostered by academics themselves – careerism, a misguided focus on students to the exclusion of scholarship, and institutional survival.153 briefly, arnett suggests that a scholar’s unhealthy near obsession with career objectives leads to narrow specializations that inhibit a more global awareness of social issues. moreover, academics who cultivate specialized knowledge are unable to speak to other academics and the larger community. this inhibits our ability to generate ideas that are important for democracy to flourish because it limits students’ ability to generate conceptually, empirically and theoretically integrated insights. more broadly trained and aware academics can have a significant influence on the university and college campuses where they teach and conduct research. next, arnett suggests that the emphasis on some campuses on being studentcentered, often at the expense of scholarship, damages the dialogical process by inhibiting the ability of teachers to keep up with contemporary research. this move has been spawned in part by the national focus on auditing discussed in the previous section, and emphasizes an approach to viewing students as “clients” or “consumers.” finally, over the course of the last thirty years institutional survival has been among the most pressing concerns for university officials. in response to growing domestic and international competition for students and faculty, increasing costs associated with operating high quality educational institutions, and steadily decreasing state and federal funding for education, american universities have turned to faculty to assist with budget crises by procuring federal and state grants. this process has its own internal dynamic in that grant funding initiatives are often not consistent with the more broadly conceived pedagogical and scholarly pursuits characteristic of a liberal arts education. thus, the internal institutional dynamics generating pressures on faculty to assist with institutional survival necessarily fix our attention on narrowly accepted mechanisms and curricula likely to extend the life and health of the university. to counter what arnett sees as consistent pressures within academic institutions against generating dialogical encounters, academics must press ahead with a broad-minded approach to a kind of scholarship reminiscent of renaissance thinkers who were well versed in the humanities and social sciences. this is important not only because diverse scholarly training represents the foundation of true knowledge, it is important because by our efforts we model for students what it means to be invested in and prepare for a life dedicated to deep understanding. as i alluded to earlier in this essay, students arrive in graduate schools and law schools primarily focused on surviving the graduate school experience, getting a job, and making money. law school curricula, i have suggested, does little to generate an alternative vision for them. faculty who adopt a dialogical approach to their own scholarly gestalt will symbolize a significant counter-hegemonic approach for their students to emulate and in doing so will stimulate greater awareness of the interconnectedness of law with politics, economics, and culture. at bottom, argues arnett, “dialogical education views learning as an ongoing discussion of information between persons in hopes of making a difference in the quality of life we live with one another locally and globally.”154 to accomplish this, a dialogically influenced scholar will approach subject matter with an emphasis on care and hope, while recognizing disappointments, and avoiding cynicism.155 like dewey and james,156 arnett 152 id at 11. 153 id at 87–92. 154 id at 96–97. 155 id at 97–112. 156 william james. 1968. “what pragmatism means.” in john k. roth (ed). the philosophy of william james. new york: thomas y. corwell company, inc.: 275–292. international journal of clinical legal education july 2009 34 privileges the practical philosophical pedagogy of learning by doing. by combining the master narratives found in books and journal articles with praxis-oriented experiential education157 students encounter the twin poles of hope and disappointment and grow accordingly. dialogue includes thoughtful engagement with both human beings and texts. as it is relevant to our interests here, that means sincere interaction between law school faculty and students, students and students, local practicing attorneys and judges, legal practitioners, legislators, and the lay public each in the service of enhanced knowledge of the meaning and application of law in the service of justice. in addition to interaction with people, we must also engage in critical deconstruction and analysis of juridic texts. probing the meaning of statutory and case law is consistent with sidorkin’s first and second discourses.158 the first discourse signifies the authority of the text, a master narrative that establishes common ground where dialogicality exists to generate a common perception of the text. the second discourse provides for “speaking out” about the text. this is an organic process that opens up the master narrative for deconstruction and reinterpretation. for our purposes, a shared introduction to jurisprudence gives way to dialogical deconstruction of the merits of that jurisprudence. since texts are open to interpretation this is inevitably an organic process that will never generate a singular truth, but rather, through the process of engaging the text will likely manifest in a transmogrified set of interpretations expressive of polyvocal and polycentered contingent subject identities, interests, and awareness largely based on demographic factors such as class, race/ethnicity, gender, religious affiliation, age, and the like. how, for example, might a law school student come to understand the ways justice antonin scalia and justice clarence thomas view stare decisis? it is now well known that despite expressing an originalist view of the constitution, justice thomas sees no virtue in adhering to case precedent.159 and what should students make of the epistemological commitment to originalism shared by scalia and thomas? that is, by evoking an originalist constitutional framework for considering contemporary issues appearing before the court aren’t we now in the realm of interpretation? how do we know what the founders intent was? isn’t it possible that thoughtful people will disagree about the founders original intent? a common problem addressed in any law school course confronting separation of powers issues concerns the question, “who is the government lawyer’s client?”160 simply put, “does a justice department attorney advising the white house on a matter of presidential authority represent the united states, the president, the presidency, the department of justice, the people?”161 given the controversy generated by the firing of eight us attorneys during the time when alberto gonzales served as the us attorney general a more timely question would be hard to imagine. the legal framework for allowing the replacement of the eight fired us attorneys without having to receive senate approval appeared in the 2005 reauthorization of the usa patriot act. section 502 “eliminates restrictions on the length of service for interim u.s. attorneys and allows future interim attorneys to serve indefinitely without senate confirmation.”162 157 the greek word, praxis, means “doing,” and “action.” webster’s ninth new collegiate dictionary. 158 a. sidorkin. 1999. beyond discourse: education, the self, and dialogue. new york: suny press: 12. 159 j. toobin. 2007. the nine: inside the secret world of the supreme court. new york: doubleday: 102. 160 peter shane and harold bruff. 2005. separation of powers law: cases and materials. carolina academic press: 43. 161 id at 42–44. 162 will thomas. 2007. tpm canned us attorney scandal timeline. talking points memo. h t t p : / / w w w . t a l k i n g p o i n t s m e m o . c o m / u s a timeline.php. 35 “the lord speaks through me” is this constitutionally protected? how do we decide who a government lawyer represents? the constitution is unclear on this point. in addition, is section 502 of the reauthorized patriot act a subversion of the senate’s constitutional authority to approve us attorneys? another example appears in chief justice rehnquist’s majority opinion upholding miranda v. arizona163. in 2000, the supreme court heard dickerson v. united states164. the question before the court in dickerson was whether to uphold the requirement established in miranda that custodial suspects should be informed of their right to remain silent, their right to legal representation, and acknowledgement that anything said while in custody would be used against them. it was well known that chief justice rehnquist had long held that in his view miranda was bad law and should be overturned. however, the chief justice, writing for the majority, joined six other justices in reaffirming the value of miranda. he did so because the implementation of miranda had become ubiquitous in american culture, and was now established law. so while part of his support for miranda in dickerson rested easily upon stare decisis, chief justice rehnquist’s more nuanced interpretation of the cultural acceptability of the law and its application played heavily on his decision.165 furthermore, an endless array of phrases and concepts continue to perplex legal and social science scholars. for example, what is the meaning of “cruel and unusual punishment?” how do i know when a behavior or item of printed material has “shocked the conscience?” who, exactly, is the “reasonable man” in the law? these questions point to the need for intensive dialogue among law school faculty, students, the community of practitioners, and the public who are served by them. dialogical intercourse is necessary for human beings to realize their humanity. to be truly human is to acknowledge the essence of the other. without that acknowledgement “i” cannot exist. said differently, “failure to affirm the being of the other brings myself into non-being.”166 for buber, “all real living is meeting.”167 when communication breaks down we are prone to view the other with mistrust and misunderstanding. we overly value our own opinions, and devalue those held by our adversaries. consider martin buber’s remarks: man is more than ever inclined to see his own principle in its original purity and the opposing one in its present deterioration, especially if the forces of propaganda confirm his instincts in order to make better use of them… he is convinced that his side is in order, the other side fundamentally out of order, that he is concerned with the recognition and realization of the right, his opponent with the masking of his selfish interest. expressed in modern terminology, he believes that he has ideas, his opponent only ideologies. this obsession feeds the mistrust that incites the two camps.168 polarization of discourse generates misunderstanding. alternatively, a discourse that is relationship-centered169 moves us closer to dialogical communication, and requires a commitment on all sides to empathize with the other to come nearer to understanding. by asking questions in the spirit of a dialogical community we come closer to understanding, and we demonstrate a 36 international journal of clinical legal education july 2009 163 384 u.s. 436 (1966). 164 530 u.s. 428 (2000). 165 supra note 143 at 124. 166 supra note 142 at 12. 167 supra note 142 at 11. 168 buber cited in sidorkin. op. cit 142 at 15. 169 supra note 142 at 7. sincere commitment to enhanced awareness of the multifaceted nature of social problems and the psycho-emotional investment subjects have in them. in the space that exists between questioner and listener, and interpretation of foundational texts, emerges the dialogical moment. through our ability to open up to others we begin to know ourselves more fully.170 this is precisely what buber means when he says that all real living is meeting. through meaningfully shared discourse a process of true awakening unfolds for each interlocutor because each plays the role of questioner and listener. this dialogical process is what moves us nearer to our shared humanity. a really existing dialogic or hermeneutic community would be a place where “partners must cooperate to establish a mutual world in which they may or may not agree. what is important is how partners must coordinate to establish meaning between themselves.”171 guilar suggests that gadamer’s hermeneutic community is similar to dewey’s “organic community” in that, like dewey who emphasized praxis as the way to true knowledge, for gadamer “dialogic conversations about concrete actions and reflections upon them [take] place within a context of historic truths also open to inquiry.”172 most important for gadamer is that interpretation of dialogical moments is open-ended. there is no attempt to establish truth once and for all.173 the most important lesson for us to draw from the body of literature addressing hermeneutics and dialogue is the potential for attaining real understanding. despite our differences, which will always be present, a process exists to promote sincere discovery and growth. through our earnest engagement with the other as listeners and questioners we humanize the other in a way that validates them and ourselves. we learn from them, and they from us. through dialogue we become more fully realized as human beings. a truly dialogical classroom is by design crafted as a humanistic alternative to the discourse of the master. where the master privileges priestly dominance over knowledge, dialogical methods open up that knowledge to critique from all interlocutors. it empowers previously marginalized subjects (students) to become integral participants in the construction and interpretation of meaning. to organize our classrooms as hierarchical fiefdoms by brow-beating our students to the point of disillusionment and illness, or to fail to acknowledge and teach the political, economic, and cultural impact of the implementation of law, or to dismiss the jurisprudential practices and decisions emanating from international courts of law limits our ability to grow, just as our refusal to dialogue with our students, the legal community at large, and the public limits their ability to “the lord speaks through me” 37 170 the notion that we cannot know ourselves without interaction with the other has a long history in philosophy and sociology that gained prominence in the 1930s with the published works of john dewey, george herbert mead, charles horton cooley, w.i. thomas, irving goffman, and herbert bloomer. dewey’s pragmatism emphasized the importance of interaction with the objective world to gain true knowledge. for mead, there can be no self without the other to interact with. without someone to respond to our public self (what mead referred to as “me”) we can have no sense of the “i” – whether we are smart, funny, sad, supportive, in short, we have no feedback with which to determine who we are. for blumer, perhaps the most radical of the symbolic interactionists, every situation we engage in is created anew. that is, we are not the same person today that we were only days before. our experiences have changed us and the way we see the world. with each new interaction we recreate our reality. the primary emphasis for all symbolic interactionists is that human beings are perpetually engaged in a process of interaction with the external world of objects and people, and that through that interaction, and our processing and re-acting to it, we evolve our sense of who we are. 171 pearce and pearce cited in j. guilar. 2006. “intersubjectivity and dialogic instruction.” radical pedagogy. issue 8. http://radicalpedagogy.icaap.org /content/issue8_1/guilar.html. 172 id. 173 h. g. gadamer. 1976. philosophical hermeneutics. berkeley: university of california press. grow. absent dialogue, we remain enshrouded in buber’s apt description of polarizing discourse resulting in the preservation of status quo hierarchical relationships based on power and ideology that continue to stifle our efforts to truly realize a moral and just application of the law. happily, plentiful resources now exist for law school faculty to invest in their own professional development regarding best practices associated with high quality course creation and delivery. at bottom is a strong emphasis on multiple modes of dialogicality leading to the generation of knowledge and its long-term retention, as well as a commitment to teaching students how to teach themselves, and an unapologetic dedication to enhancing student well-being. student development theory at this point it should be clear that law school pedagogy is devoid of dialogue surrounding the latest scholarship addressing student learning theory. frankly, this is a problem facing university teaching everywhere in the us, and in most disciplines.174 many resources are available to provide guidance to law professors seeking ways to enhance student comprehension and mastery of concepts and legal theory. what i wish to do in this final section is to provide an overview of a few selected best practices. then, i will offer some suggestions for ways to improve law school pedagogy. what makes a high quality course? what are the criteria that make learning significant? according to fink,175 good courses are those that prioritize the following: they challenge students to important kinds of learning; they use active forms of learning; they involve a caring teacher; there is good student-teacher interaction; and there is a good system of feedback, assessment, and grading. as for the most significant learning criteria, fink identifies six: foundational knowledge; application; integration; human dimension; caring; and learning how to learn. finally, but perhaps most importantly, we must know the situational factors that combine to constitute the learning environment. in the paragraphs that follow i will discuss the qualities of good courses, especially the criteria for significant learning, and situational factors. a well-designed course will ideally provide for the realization of each, albeit with course-specific uniqueness. at the heart of quality teaching is “the attitudes of the teachers, in their faith in their students’ abilities to achieve, in their willingness to take their students seriously and to let them assume control of their own education, and in their commitment to let all policies and practices flow from central learning objectives and from a mutual respect and agreement between students and teachers.”176 in his careful analysis of the qualities possessed by the nation’s most prolific university teachers, bain’s important insight into how faculty approach the construction and delivery of their classes is invaluable. foremost among these is awareness of how students learn best. as summarized by bain, faculty from across the united states recognize that “people learn most effectively (in ways that make a sustained, substantial, and positive influence on the way they act, think, or feel) when (1) they are trying to solve problems (intellectual, physical, artistic, practical, or abstract) that they find intriguing, beautiful, or important; (2) they are able to do so in 38 international journal of clinical legal education july 2009 174 derek bok. 2006. our underachieving colleges: a candid look at how much students learn and why they should be learning more. princeton, nj: princeton university press. 175 l.dee fink. 2003. creating significant learning experiences. san francisco, ca: john wiley & sons. 176 ken bain. 2004. what the best college teachers do. cambridge, ma, harvard university press: 78–79. a challenging yet supportive environment in which they can feel a sense of control over their own education; (3) they can work collaboratively with other learners to grapple with the problems; (4) they believe that their work will be considered fairly and honestly; and (5) they can try, fail, and receive feedback from expert learners in advance of and separate from any judgment of their efforts.”177 following decades of careful scholarship pointing to the ways people learn and retain information, a new paradigm of university teaching has emerged.178 following the work of campbell and smith, this new paradigm stresses the following: knowledge that is jointly constructed by the teacher and the student; students become actively involved in constructing, discovering, and transforming knowledge; modes of learning that focus more on relating rather than memorizing; where the faculty purpose is to develop students’ competencies and talents; student lifelong learning; a personal relationship between students and students and faculty; cooperative learning in the classroom; diversity and personal esteem, cultural diversity, and commonality; students are empowered, power is shared among students and between students and faculty; assessment is criterion-referenced (using rubrics and pre-defined standards), typically use performances and portfolios; ways of knowing are narrative based; epistemology is constructivist, emphasis is placed on invention and inquiry; technology is used for problem solving, communication, collaboration, information access, and expression; and that teaching is a complex skill that requires considerable training. to facilitate the mandates of the new paradigm there has emerged an impressive array of teaching strategies largely based on the pedagogical commitment to active and experiential learning. among them are: role-playing, simulation, debate, and case studies; writing to learn; small group learning; assessment as learning; problem-based learning; service learning; and on-line learning.179 in addition, law school faculty have been encouraged to institute brain storming (group problem solving), buzz groups (brief period of issue discussion in class), demonstrations, free group discussion, group tutorial, individual tutorials dedicated to one student, problem-centered groups, programmed learning (using computer simulations), syndicate method (group work followed by generation of a report), synectics (group brain-storming with special techniques), and t-group method (group and individual awareness therapy).180 the guiding ethic behind each of these tools is a commitment by quality teachers to generate answers to the following questions: 1) what should my students be able to do intellectually, physically, or emotionally as a result of their learning? 2) how can i best help and encourage them to develop those abilities and the habits of the heart and mind to use them? 3) how can my students and i best understand the nature, quality, and progress of their learning? and 4) how can i evaluate my efforts to foster that learning?181 foundational knowledge is a basic understanding of data, concepts, relationships and perspectives within a given substantive area. comprehension of case law and statutes, for example, signifies foundational knowledge. application is the experience of generating useful skills that can be applied toward realization of a project or action of some kind, and that manifests the foundational knowledge. here the expectation is for the creation of complex high quality projects that require the combination of three modes of thought: practical, critical, and creative. most law school “the lord speaks through me” 39 177 id at 108–109. 178 campbell and smith, 1997: 275–276, cited in fink, supra note 175 at 19. 179 supra 175 at 20–21. 180 see stuckey supra note 10 at 97,98. 181 supra note 176 at 49. projects require practical thinking in that they are focused on issue spotting, problem solving and case methodologies. enhanced application would also introduce students to critical and creative thinking. critical thinking is a pedagogical phrase that relatively few can actually define, let alone manifest in a pragmatic way with exercises designed to cultivate it. i am particularly fond of roger darlington’s articulation of the concept.182 darlington’s exposition both defines the concept of critical thinking, and describes how one masters it. critical thinking, he argues, “centres not on answering questions but on questioning answers” through a process of “probing, analyzing, [and] evaluating.”183 while there is certainly some critical thinking that takes place with regard to legal case analysis, the weight of precedent and demand for perpetuation of the status quo limits the students’ ability to challenge the authority on which decisions and practices rest. one of the key components of critical thinking is the necessity to think outside the box. darlington takes that position one step further by contending that we should, “think the unthinkable.” finally, and this is so much more consistent with training in sociology than in law, to think critically is to perpetually ask, “why?” the question being posed here is, are law school students encouraged to think critically? are they encouraged to always ask, “why?” once one has begun “thinking the unthinkable,” one has ventured into the last of the three ways one can manifest thought and that is through creative application and interpretation of existing works. a more specific set of critical thinking criteria has been set out by arnold arons.184 according to aarons, there are ten reasoning abilities that students must learn. • consciously raising the questions “what do we know…? how do we know…? why do we accept or believe…? what is the evidence for…?” • being clearly and explicitly aware of gaps in available information. • discriminating between observation and inference, between established fact and subsequent conjecture. • recognizing the necessity of using only words of prior definition, rooted in shared experience, in forming a new definition and avoiding being misled by technical jargon. • probing for assumptions beyond a line of reasoning. • drawing inferences from data, observations, or other evidence and recognizing when firm inferences cannot be drawn. • performing hypothetico-deductive reasoning; that is, given a particular situation, applying relevant knowledge of principles and constraints and visualizing, in the abstract, the plausible outcomes that might result from various changes one can imagine to be imposed on the system. • discriminating between inductive and deductive reasoning. • testing one’s own line of reasoning and conclusions for internal consistency. • developing self-consciousness concerning one’s own thinking and reasoning process. university professors are keen to emphasize the significance of critical thinking, especially in the study and practice of law. however, rarely if ever are the principles of critical thought clearly articulated by the professor to the students. this kind of reflexivity is necessary if we are to 40 international journal of clinical legal education july 2009 182 roger darlington. 2008. “how to think critically.” http://www.rogerdarlington.me.uk/thinking.html. 183 id at 1. 184 cited in fink, supra note 175 at 85. generate the critical analytical skills indispensable to engaging legal scholarship and practice. integration is in some ways related to creative thinking in that by engaging in integration a student is required to analyze a problem using two or more disciplines. the idea is expand our knowledge and understanding of complex problems through multiple lenses. by doing so we are less likely to become stultified by disciplinary essentialism. by engaging in a multi-disciplinary approach to problems we are far more likely to generate a more comprehensive, penetrating, and lucid account. we can accomplish integration in a number of ways. we can introduce our students to alternate ways of thinking by having them read in non-juridic disciplines. we can introduce our students to learning communities, associations of professionals, activists, and practitioners who work along side our students to better understand problems we are investigating. finally, through techniques such as journaling we can have the students think through their course-related problems in thoughtful ways that emphasize integration with other disciplines, occupations, voluntary associations, and the like. it is important that students understand that their lifelong learning and occupational experiences have a human dimension to them. as i have already attempted to explain in this essay, far too often the human dimension is sorely lacking in law school pedagogy. what is needed is a set of exercises that allow students to come to know themselves better, to know others better, and to generate a stronger sense of self-authorship. in the long run these exercises, along with all that has come before, will enhance the ethical application of the law. related to the human dimension is the notion of caring. simply put, we can generate exercises that encourage students to consider the ways in which their interests, feelings, and values have changed over time. the last of the criteria that will stimulate learning environments is “learning how to learn.” this is a significant component of any university-based training because it teaches students how to become lifelong learners. in order to become a better student, faculty must facilitate ways for students to develop their underlying concept of learning or of knowledge; they must develop metacognitive awareness, so that they recognize that a deep approach is required, and metacognative control, so that they can make appropriate meaning making moves; make assessment demands explicit so that students understand that only full understanding will be acceptable as a learning outcome; to combine theoretical and conceptual knowledge with methodological analysis; learn to use concept maps to better integrate what students know; become a self-directed learner; encourage deep-level thinking; increase questioning; develop critical thinking capabilities; enhance reading skills; and enhance comprehensive monitoring of their learning. situational factors also affect the quality of course delivery. and while some information that may assist with faculty awareness of a particular factor is hard to know until the class has been formulated, it is important to generate. according to fink185 there are six situational factors: 1) the context of the learning situation; 2) expectations of external groups; 3) the nature of the subject matter; 4) the characteristics of the learners; 5) the characteristics of the teacher; and 6) special pedagogical knowledge. lets briefly consider each. in order to properly facilitate the kind of learning we’ve emphasized in this section the teacher needs to know a few things about the learning situation. specifically, we need to know how many students we’ll have, what level they will be (first, “the lord speaks through me” 41 185 id at 69. second, or third year law), how often the class will meet, and the format in which the course will be delivered. next, what are the expectations being held by external groups with respect to the product we produce. that is, what does society at large need and expect in terms of the education of these students? this is a significant question and one that must be repeatedly addressed by law school faculty, and the american bar association. each faculty member should be able to respond to this question with a statement of principle. for example, a criminal procedure professor could say that she recognizes her role in producing thoughtful, intelligent, capable, well-spoken, good writers with a fundamental knowledge of criminal procedure. is there a curricular emphasis on ethics, or on critical thinking? if so, does the curriculum support the culturally identified expectation? with respect to wrongful and unlawful conviction, for example, what are the broader political, economic, and cultural expectations of law school graduates and their faculty, and how well does the curriculum address those expectations? what is the nature of the subject matter? faculty should identify whether the subject matter is convergent, requiring a single answer, or divergent, requiring multiple possible answers. faculty should also be aware of whether the subject matter is relatively stable over time, or is rapidly changing. next, we’ll want to know more about our students. for example, are they part-time, do they have family responsibilities, work responsibilities, etc. this information will be handy when considering how to use the skill-base of the students to enhance the creation of knowledge in class. why did the students want to enroll in this class? what are their specific career goals? finally, if it’s possible, we want to know about the students’ learning styles. again, some of this information may not be available until after students convene at the commencement of a new semester. but it may be an important set of variables necessary to construct an optimal learning environment. the remaining set of situational variables includes the characteristics of the teacher, and special pedagogical knowledge. here what is required is sincere reflexivity on the part of the teacher. how much knowledge about the topic i’m teaching do i possess? what is my experience in this area? what skills and aptitudes do i bring to bear? by earnestly answering these questions the teacher is better situated to identifying areas of weakness that may require additional focused professional development before embarking on the course. special pedagogical knowledge speaks to the need for teachers to understand the limitations they are facing upon entering a new semester. these may be limitations of space, access to technology, placebound students (making trips off of campus difficult), experience and skill levels of the students, and the level of fear about the material that students bring with them to the classroom. this is clearly an issue for law school faculty who face students who are not only intimidated by the material they are confronting in class, but who are intentionally placed in a highly competitive environment. the combination of these factors makes for a challenging set of pedagogical obstacles to generating true knowledge of the sort that will stay with a student for many years post-graduation. the final bit of student development theory that i’d like to emphasize is assessment. of course, american law schools primarily make use of timed examinations, with a few upper division courses assigning research papers. the question is whether the assessment tool used by law schools has ever been thoughtfully discussed within the context of quality pedagogy leading to information and skill retention. education scholars have been discussing alternative assessment devises for many decades and have argued for what they term forward looking assessment.186 law 42 international journal of clinical legal education july 2009 186 id at 85. school examinations are backward looking in that they focus on assessing what has been covered in the class up to a certain point. forward looking assessment focuses more on doing something with the information and skills generated in the course. some case method analysis certainly gets at the “doing” part of assessment. in general, assessment should be realistic (focused on real-world situations); require judgment and innovation (to solve unstructured problems); active (student has to carry out exploration and work within the discipline); replicate or simulate the contexts in which adults are tested in the workplace (with concomitant contexts, constraints, purposes and audiences); assess the student’s ability to use a repertoire of knowledge and skill efficiently and effectively to negotiate a complex task; and allow appropriate opportunities for students to rehearse, practice, consult resources, and get feedback on and refine performances and products.187 application of student learning theory to law school pedagogy some of our work has been done for us. in two recently published documents – the carnegie foundation for the advancement of teaching’s educating lawyers, and stuckey et.al. best practices for legal education188 – there is a wealth of information available to reconstitute law school pedagogy consistent with insights garnered from student development theory. even the much discussed maccrate report, first published in 1992, contained an effort to divine fundamental lawyering skills necessary for an attorney to be successful.189 these skills form the foundation of a thoughtful approach to developing course-specific goals and bear reading again and again. maccrate identified ten fundamental skills, and four professional values that were tied to the successful practice of law. examples include: • identify and diagnose a problem; • generate alternative solutions and strategies; • develop a plan of action; • implement the plan; • identify and formulate legal issues; • formulate relevant legal theories; • evaluate legal theory; • know the nature of legal rules and institutions; • know of and have the ability to use legal research tools; • determine the need for factual investigation; • plan a factual investigation; • implement the investigative strategy; • organize information; • assess the perspective of the recipient of information; • use effective communication techniques; “the lord speaks through me” 43 187 id at 86. 188 supra note 10. 189 see mccrate report supra note 22, chapter five, “the statement of fundamental lawyering skills and professional values.” • prepare for negotiation; • conduct negotiation each of these course goals emphasizes the identification, analysis, synthesis, and application that was earlier identified as among the most significant mechanisms for promoting long-term knowledge and skill. once these have been articulated faculty can then move to determination of the specific instruction method to be used (e.g., problem based, team based, or accelerated). the carnegie report specifically emphasizes moving to an integrated curriculum that combines an emphasis on legal doctrine and analysis, an active component that focuses on practice as a lawyer, and assuming the values and identity of a practicing attorney.190 with regard to the active learningby-doing emphasis found in student development theory, the carnegie report suggests that law schools must incorporate lawyering, professionalism and legal analysis from the first year on. law schools are encouraged to support faculty to work across the curriculum, and across institutions. finally, the carnegie report suggests that a primary focus should be on weaving together disparate kinds of knowledge and skill. as was mentioned in the previous section, this is a cornerstone of integration and a necessary component of fink’s significant learning criteria. in short, the carnegie report articulates a vision of law school pedagogy that is consistent with best practices. consider the list of six skills that core legal education should provide: 1. developing in students fundamental knowledge and skill, especially an academic knowledge base and research. 2. providing students with the capacity to engage in complex practice. 3. enabling students to learn to make judgments under conditions of uncertainty. 4. teaching students how to learn from experience. 5. introducing students to the disciplines of creating and participating in a responsible and effective professional community. 6. forming students able and willing to join an enterprise of public service.191 once again, these six skill sets represent core goals for all advanced education regardless of the disciplinary focus. a more extensive assessment and forward looking treatment of law school pedagogy was published by stuckey et al. who contend that, “most law schools do not employ the best practices for educating lawyers.”192 so concerned with the current state of law school pedagogy and its failure to properly prepare graduates for the practice of law that the authors titled one section of their report, “the licensing process is not protecting the public.” their first invective is directed at the bar examination process and the failure of the bar to adequately assess the skills needed to succeed as a professional. but their third key point focuses specifically on law school curriculum and pedagogy, “law schools are not fully committed to preparing students for practice.” specifically, stuckey et al. contend that, “law schools should expand their educational goals, improve the competence and professionalism of their graduates, and attend to the well-being of their students.”193 consistent with best practices as they relate to student development theory, 44 international journal of clinical legal education july 2009 190 see carnegie report supra note 22 at 6. 191 cited in stuckey, supra note 10, at 14. 192 id at 8. 193 id at 13. stuckey et al., recommend an overhaul of the law school curriculum. following the work of judith wegner, the first year curriculum should emphasize: intellectual tasks, legal literacy, legal analysis, application, synthesis, evaluation, implicit messages (like how the law interacts with the “outside world”), learning in context (addressing real world profession problems), and notable gaps (understanding law from the perspective of intellectual and social contexts to avoid misimpressions).194 the stuckey et al., report is a comprehensive assessment and set of recommendations for ways to significantly improve law school education consistent with the most recent insight generated by student development theory. as best as i can tell, the authors have attempted to communicate a new way forward that includes each of the points i raised in the student learning theory section. that is, the report focuses on the generation of foundational knowledge, application, integration, the human dimension, and caring. for example, the author’s provide important insight into outcomes based course design, and include examples from law professors across the us. they implore faculty to generate clearly articulated learning objectives that include the levels of competency expected by the faculty. stuckey et al., pay careful attention to the need for developing knowledge, skills and values, and place strong emphasis on the integration of theory, doctrine and practice. consistent with the situational factors listed above, stuckey et al., join with fink in urging faculty to know their subject well, to improve their teaching pedagogy, to create and maintain healthy teaching and learning environments, to do no harm to students, to support student autonomy, to foster student and faculty collaboration, to give regular and prompt feedback, to help students become self-directed learners (a key component of experiential learning – doing something), reduce reliance on the socratic method by employing multiple teaching strategies, employ context-based learning (placing students in the environments they will be working in), integrate practicing attorneys and judges into the learning process, and use technology to enhance access to information. once again it bears repeating that this thorough report moves nearly in lock step with current best practices regarding student development theory, and provides detailed examples for ways law professors can implement the various recommendations. chapter five of the stuckey et al. report is dedicated entirely to the construction of high quality experiential courses. space limitations prevent me from presenting a thorough discussion of this section, so i will simply say that the thorough presentation of best practices and the benefits of experiential course offerings speaks holistically to the criteria established by education theorists fink, bain, and others, as well as clinical law professors findley, stiglitz, brooks, shulman, and medwed, each of who were cited in the introduction and have spent their professional careers enhancing the live client clinic experience. in short, by engaging students in the act of doing we create in them the ability to develop life-long learning skills and professionalism. chapter six provides faculty with alternatives to the socratic method, and chapter seven speaks to quality assessment. the stuckey et al. report is the most comprehensive assessment and proposal for a new and improved law school pedagogy based on student learning theory that i’ve encountered. it pulls together best practices from across a broad spectrum of learning theorists both within and outside of the law school arena. what is clear from this report is that there are many ways for faculty to approach their teaching to enhance student performance and professionalism. i would even go so “the lord speaks through me” 45 194 id at 16. far as to say that the report is a clarion call for law school faculty to engage in their own professional development as it pertains improved pedagogy. if stuckey et al. are correct in their projections the future of the profession is at stake. a pedagogical alternative returning for a moment to moliterno’s recommendation that an integrated law school curriculum would be structured around a three-year long simulated practice is indicative of the recognition of the need to implement the best practices suggested by student development theory. it is also supported by scott’s emphasis on the need for law school students to adopt a sort of legal intuition that can only come from working real cases with real people who have real problems. because no case has precisely the same components the non-linearity of each case requires students to develop their critical thinking skills. moreover, it requires laws schools to prepare students for life-long learning. this is where integration comes in. by reconceptualizing the law school curriculum as a three-year long simulated law practice students will be forced to understand and evaluate legal doctrine and theory, know the nature of legal rules and institutions, know how to use legal research tools, know professional ethical responsibilities, know how to conduct factual investigations, organize information, use effective communication techniques, and conduct negotiations. in addition, this commitment to an integrated curriculum emphasizes closer and more respectful relationships with students. students are required to take greater responsibility for their own education by teaching themselves the information they will need to learn to be effective lawyers. faculty will guide the entire enterprise by paying special attention to best practices associated with course delivery methods and assessment. lacanian concerns over divided subjects are minimized because realization of student-centered learning – one that privileges dialogicality, student investment in their own learning process, respect for polyvocality, and experientially based pedagogy – enables subjects to pursue realization of their own authenticity. in short, a comprehensive three-year long integrated curriculum will produce a law school graduate more prepared to engage the unpredictable world of legal practice. with the proposal for a three-year long integrated curriculum moliterno’s recommendation appears to make a straightforward argument for replacing contemporary law school curricula with a superimposed experiential model. by doing so, the benefits of clinical education would accrue to the full law school student body over the course of their tenure in their respective departments. no longer would clinics be marginalized, they would become the normative model of effective law school pedagogy. iv conclusion if einstein is correct, that we cannot solve significant problems at the same level of thinking we were at when we created them, then i believe we must not only familiarize ourselves with counterhegemonic pedagogical discourses to confront entrenched law school curricula, we must also be willing to aggressively act on the principles guiding those discourses. among other things, this requires headlong engagement with the american bar association and the administrations in law schools across the united states. the scholarly ammunition needed to do this has been provided to us. as referenced in the first part of this essay, the mccrate report, best practices for legal education: a vision and a road map, and the carnegie foundation’s educating lawyers: preparation for the profession of law, each provide us with careful scrutiny of the many problems 46 international journal of clinical legal education july 2009 facing the legal profession, and the tools for law schools to correct their curricula and pedagogy to appropriately address them. but there are clear pragmatic reasons why they won’t. despite claims from law school administrators that clinics are too expensive to operate, the real macro-structural reason for their lack of support is that law schools exist to serve the interests of the dominant and the powerful. their curricula is designed to reproduce status quo political, economic, and cultural relations in such a way that they make the possibility of a truly existing justice virtually impossible to attain. while they may pay lip service to their responsibility for teaching students how to preserve constitutionally protected rights, their graduates are molded in to “legal machines” ill prepared to critically question and analyze the structural variables serving to promote inequitable social relations. and this is by design. live client innocence projects can serve a valuable role by articulating the discourse of the hysteric. from within the broader master narrative, the hysteric will reject positivist attempts to view the law as objective, and the training in the law as monolithic. this is important because the dialectical interplay of opposing forces through the expression of competing narratives has the effect of generating institutional instability. largely because of their participation in clinical education, innocence project graduates are better situated to understand their professional responsibility to serving justice. the results of their work may even generate exonerations and policy changes that serve to fragment dominant cultural expressions of due process. in doing so, opportunities arise to inject alternative discourses – new formerly subjugated narratives seeking more diverse interpretations of behaviors and texts. but until the head of the snake is removed, that is, until status-quo law school curriculum is redesigned in line with the recommendations for greater dialogicality geared toward critical analysis of the confluence of law with political, economic, and cultural factors leading to social justice, i’m afraid that innocence project clinics, like all live client clinics, will continue to be marginalized by a discursive process that separates legitimate from illegitimate discourse. finally, and most dramatically as it pertains to the activities of innocence project clinicians and wrongful and unlawful conviction scholars teaching in law schools, failure to radically redesign law school curricula will have the effect of perpetuating the proliferation of values and behaviors known to generate wrongful and unlawful convictions. until the paradigmatic pedagogical shift i’ve recommended in this manuscript is adopted these clinicians and scholars will be forced to continue shouting their warnings for systemic change from the bleacher seats. “the lord speaks through me” 47 519 regulating clinic: do uk clinics need to become alternative business structures under the legal services act 2007? elaine campbell1 1 elaine campbell is a senior lecturer and solicitor tutor at the school of law, northumbria university, in the student law office 520 international journal of clinical legal education issue 20 in clinical legal education circles we tend to focus on the pedagogical aspects of our work� we enjoy lively debate on topics such as assessment, skills, ethics, student self-efficacy, the role of reflection and balancing the needs of the student with the needs of the client� rarely do we speak or write about the legal framework regulating the work that occurs in clinics� however, the regulatory landscape is changing, and rapidly� the legal services act 2007 allows organisations that are owned or managed by non-lawyers to provide regulated legal services� it permits and encourages new entrants to the legal services market in england and wales� it was heralded as ushering in important new opportunities for solicitors to team up with non-lawyers and to attract capital for their businesses in a carefully regulated environment2� at first glance, there did not appear to be anything within the framework which affected law school clinics� on closer inspection, this is sadly not the case� the aim of this paper is to increase the level of awareness within the clinical legal education community, in england and wales in particular, of the effects of the legal services act 2007 on clinical activity� it will explore the background to the introduction of alternative business structures and compare the approach which australia has taken� it will also look to the future and discuss potential problems and solutions� background to the introduction of alternative business structures australia (more specifically, new south wales) was the first jurisdiction to look to an atypical law firm arrangement� in 1990 it allowed law firms to form multi-disciplinary practices (mdp) but with the proviso that lawyers retained at least 51 percent of the firm’s net income and the majority voting rights3� it also permitted solicitor-corporations� however, as with mdps, only an “approved solicitor” could hold voting shares in the corporation4� these strict caveats meant that whilst outsiders could be involved in the ownership of a law practice lawyers maintained ultimate control� in 1998 the competition policy review of the legal profession act found that the existing rules were non-competitive� following the report, the rules were changed� non-lawyers could have majority voting rights in an mdp and were not prejudiced in terms of the share of net income of the mdp� however, even at this stage, lawyers were reluctant to move to a new form of legal firm structure� it was not until the legal profession (incorporated legal practices) act 20015 came into force in new south wales that the idea that legal practices could and would be incorporated bodies was embraced by the profession6� the new legislation allowed legal service providers in new south 2 solicitors regulation authority (2013) legal services act� available at: https://sra�org�uk/lsa/ (accessed 18 september 2013)� 3 section 48g legal profession act 1987� the “51%” rule was introduced in legislative changes which looked to liberalise multi-disciplinary practices� 4 legal profession (solicitor corporations) amendment act 1990� 5 accompanied by the legal profession (incorporated legal practices) regulation 2001� 6 steve mark, new south wales legal services commissioner (2007) a short paper and notes on the listing of law firms in new south wales to the joint nobc, aprl and aba centre for professional responsibility panel entitled “brave new world: the changing face of law firms and the practice of law from a professional responsibility perspective”� [online] available at: http://www�olsc�nsw�gov�au/agdbasev7wr/olsc/documents/pdf/notes_for_ joint_nobc_aprl_aba_panel (accessed 14 july 2013)� 521 regulating clinic: do uk clinics need to become alternative business structures under the legal services act 2007? wales to register as a company with the australian securities and investment commission� as a company, the firm would be required to adhere to the requirements of the corporations act 2001 as well as the regulations governing the provision of legal advice� the current statute which governs the legal profession in new south wales is the legal profession act 20047� under part 2�6 of the act a legal service provider can incorporate and provide services alone or together with other legal service providers who may or may not be legal practitioners� by march 2008, there were 800 incorporated legal practices (ilps) in new south wales� gradually, other states in australia followed suit and permitted incorporation8� the legal services commissioner has estimated that ilps comprise 20% of all firms in new south wales9� mdps have continued, but have been far less popular10� much like the australian experience, the origins of alternative business structures in england and wales can also be found in a competition policy review� in march 2001 the office of fair trading published a report entitled competition in the professions11. the report focused on the anticompetitive nature of the prohibition on partnerships between barristers, barristers and solicitors, and lawyers with non-lawyers� it also found fault with rules preventing solicitors in the employment of non-solicitors from providing services to third parties12� this led to a consultation paper in the public interest from the then lord chancellor’s department (now the ministry of justice) in 2002 and, the following year, the report competition and regulation in the legal services market13. both raised concerns about the legal services market, and both called for a full scale review� on 24 july 2003 the uk government commissioned sir david clementi to undertake a complete review of the regulation of legal services� he was charged with recommending a framework which would “be independent in representing the public and consumer interest, comprehensive, accountable, consistent, flexible, transparent, and no more restrictive or burdensome than is clearly justified”14� clementi was given until 31 december 2004 to deliver his report� it was published on 15 december 2004� 7 together with the legal profession regulations 2005� 8 in western australia in 2004, victoria in 2005, the australian capital territory in 2006, the northern territory and queensland in 2007� 9 see n5� 10 on 4 october 2011, the president of the law council of australia gave an address to council of the law society of england and wales said that there had been a “strong preference” for incorporated legal practices� full text available at: http://www�lawcouncil�asn�au/lawcouncil/images/lca-pdf/speeches/20111004lawsociety ofenglandandwalesspeech�pdf (accessed 14 july 2013)� 11 great britain� office of fair trading (2001) competition in professions – a report by the director general of fair trading [online]� available at: http://www�oft�gov�uk/shared_oft/reports/professional_bodies/oft328�pdf (accessed 14 july 2013)� 12 the office of fair trading has advisory responsibilities relating to the competition implications of proposed rules and regulations under the enterprise act 2002� it also has advisory powers specific to the provision of legal services under the courts and legal services act 1990� 13 great britain� department for constitutional affairs (2003) competition and regulation in the legal services market (online)� available at: http://webarchive�nationalarchives�gov�uk/+/http://www�dca�gov�uk/consult/ general/oftreptconc�htm (accessed 18 september 2013)� 14 great britain� department of constitutional affairs (2004) report of the review of the regulatory framework for legal services in england and wales [online] available at: http://webarchive�nationalarchives�gov�uk/+/http:// www�legal-services-review�org�uk/content/report/report-chap�pdf (accessed 14 july 2013)� 522 international journal of clinical legal education issue 20 the report strongly favoured greater competition between lawyers� it also sought to permit competitition between different types of economic unit� in short, it set out that a new licensing regime should be available to entities which included non-lawyer owners or managers who wished to enter the legal service market� these were to be known as alternative business structures� it proposed a legal services board, with a non-lawyer chairman and chief executive, to oversee regulation by a list of approved bodies� at the time, the office of fair trading stated that the clementi report took forward a number of the important outstanding issues identified in its earlier work on competition in the legal professions� clementi’s recommendations, said john vickers the then chairman of the office of fair trading, combined “deregulation – greater freedom for legal service providers to compete – with better regulation”15� the government took alternative business structures to its heart� in its subsequent white paper the future of legal services: putting consumers first16 it listed the numerous benefits for consumers and legal providers� for consumers, alternative business structures meant more choice, reduced prices, better access to justice, improved service and convenience� the paper envisaged that alternative business structures would realise savings through economies of scale, increase services in rural areas and be a “one stop shop” for consumers� for legal providers, the suggested benefits included increased access to finance, better spread of risk, increased flexibility and better retention of high quality non-law staff� the legal services bill was introduced 24 may 2006 and the legal services act 2007 received royal assent on 30 october 2007� in section 1(1) the act laid out 8 regulatory objectives: 1� protecting and promoting the public interest; 2� supporting the constitutional principle of the rule of law; 3� improving access to justice; 4� promoting and protecting interests of consumers; 5� promoting competition in the provision of services; 6� encouraging an independent, strong, diverse and effective legal profession; 7� increasing public understanding of citizens’ legal rights and duties; and 8� promoting and maintaining adherence to professional principles� the newly formed legal services board was tasked with acting17 in a way which was compatible with the objectives and which it considered more appropriate for the purposes of meeting those objectives� it would oversee the regulators who would put in place and administer the licensing rules� this took much longer than anticipated� the new regulatory regime became active on 1 january 2010 – 3 years after the act came into force� 15 office of fair trading (2004) oft welcomes clementi recommendations to reform the legal profession [press release]� 15 december available at: http://www�oft�gov�uk/news-and-updates/press/2004/clementi (accessed 14 july 2013)� 16 great britain� department of constitutional affairs (2005) the future of legal services: putting consumers first. london: the stationary office� (cm� 6679) 17 so far as was reasonably practicable� 523 regulating clinic: do uk clinics need to become alternative business structures under the legal services act 2007? reserved legal activities and the licensing regime historically, certain aspects of the work of solicitors and barristers in england and wales have been “reserved” to the legal professions� clementi stated in his report that these areas could be termed “the inner circle of legal services”18� reserved legal activities have been described as the fundamental building blocks of the legal services act 200719� the activities currently reserved, and hence can only be carried out by authorised persons, are listed at section 12 of the legal services act 2007 and defined in schedule 2� they are: a� the exercise of a right of audience20; b� the conduct of litigation21; c� reserved instrument activities22; d� probate activities23; e� notarial activities24; and f� the administration of oaths� an alternative business structure is an organisation that is licensed to carry on one more of the legal activities regulated by the legal services act 2007 and whose owners and/or managers include individual or entities who are not qualified lawyers� an alternative business structure which wishes to carry out any of the reserved legal activities will need to be licensed to do so by the relevant licensing body� for example, if the licensing body is the solicitors regulation authority, solicitors and therefore the alternative business structure can perform all reserved work bar some notarial activities25� it is a criminal offence, under section 14 of the legal services act 2007, to carry on reserved legal activities unless entitled to do so� under the legal services act 2007 the licensing body must approve the holding of a “material interest” by a “non-lawyer” in the alternative business structure� it must also authorise the firm as a whole as being appropriate to provide legal services� in order to assess whether a non-lawyer has a material interest the act distinguishes between authorised and non-authorised persons� 18 see n�13� 19 miller, i and pardoe, m� (2012) alternative business structures, the law society, p�3� 20 the right to appear before and address a court including the right to call and examine witnesses (schedule 2, part 3)� 21 issuing proceedings before any court in england and wales, the commencement, prosecution, defence of such proceedings and the performance of any ancillary functions in relation to those proceedings (schedule 2, part 4)� 22 preparing any instrument of transfer or charge for the purposes of the land registration act 2002, making an application or lodging a document for registration under that act or preparing any other instrument relating to real or personal estate for the purposes of the law of england and wales or instrument relating to court proceedings in england and wales (schedule 2, part 5)� 23 preparing any probate papers for the purposes of the law of england and wales or in relation to any proceedings in england and wales (schedule 2, part 6)� 24 activities carried on by virtue of enrolment as a notary in accordance with section 1 of the public notaries act 1801� 25 see n�18, p�9� 524 international journal of clinical legal education issue 20 authorised persons include solicitors, registered european lawyers, regulated law firms, barristers, licensed conveyancers and legal executives� non-authorised persons are any individual or entity who is not (a) an authorised person (b) a registered foreign lawyer (c) a member of an establishment directive profession entitled to pursue professional activities in an establishment directive state or (d) a firm providing legal services in which all of the managers and owners are individuals within (a)-(c) above or are bodies in which more than 90 per cent of the managers and owners are within (a)-(c) above� paragraph 3 of schedule 13 of the legal services act 2007 sets out the tests for assessing at which point an ownership interest in an alternative business structure is material26 and therefore requires separate approval� this is in stark contrast to the australian system, which is far simpler and easier to navigate� section 14 legal profession act 2004 sets out that a person may not engage in legal practice unless the person is an australian legal practitioner� it then goes on to state that this does not apply to a legal practice engaged in by an incorporated legal practice27� an incorporated legal practice is defined28 as a corporation that engages in legal practice, whether or not it also provides services that are not legal services� legal services are defined, simply, as “work done, or business transacted, in the ordinary course of business”29� a firm wishing to incorporate must simply liaise with the australian securities & investment commission and notify the law society of its intention to commence trading as an incorporated legal practice� in an address to council of the law society of england and wales, alexander ward, the president of the law council of australia noted that australia did not intend to move to a licensing regime for alternative business structures30� although much has been made of the positive experience of australian law firms who chose to become ilps, this “key point of difference”31 is not raised in any of the literature� section 106 legal services act 2007: “special” bodies when the legal services act 2007 came into force, the focus was, and has remained, on the expansion of the legal marketplace and the benefits of innovative business models�32 very little has been written about the parts of the act which have a direct impact on non-commercial legal services providers� these provisions are spread throughout the act and perhaps this has been why they have remained “hidden” from detailed scrutiny� 26 usually, a material interest means ownership of at least 10 per cent of the shares in a licensed body or a body which controls a licensed body, although the legal services act 2007 allows licensing bodies to reduce this figure should they wish� 27 section 14(2)(b) legal profession act 2004� there are other examples of exempted legal practice in section 14(2) legal profession act, including the practice of foreign law by an australian-registered foreign lawyer and legal practice engaged in by a complying community legal centre (which i have explored in more detail below)� 28 section 134 legal profession act 2004� 29 section 4(1) legal profession act 2004� 30 address to council of the law society of england and wales by alexander ward, president, law council of australia (2011) available at: http://www�lawcouncil�asn�au/lawcouncil/images/lca-pdf/speeches/20111004lawsocietyo fenglandandwalesspeech�pdf (accessed: 14 july 2013)� 31 ibid� 32 as of 25 september 2013 there are 189 licensed bodies (abs): http://www�sra�org�uk/solicitors/firm-basedauthorisation/abs/abs-search�page� they include brands which traditionally have been associated with different sectors i�e� c-operative legal services limited (supermarkets) and admiral law limited (insurance)� 525 regulating clinic: do uk clinics need to become alternative business structures under the legal services act 2007? section 106 of the act lists the entities which the act calls “special bodies”33� these are (a) an independent trade union (b) a not for profit body (c) a community interest company (d) a low risk body, and (e) a body of such other description that may be prescribed by order made by the lord chancellor on the recommendation of the legal services board� under the act, special bodies with non-lawyer owners and/or managers that are providing reserved legal activities will need to be licensed by the legal services board in the same way as any other alternative business structure� section 23 of the act states that not for profit bodies, community interest companies and independent trade unions have the benefit of a transitional grace period� during this period, they are not required to apply for authorisation as a licensed body� until this transitional grace period ends, special bodies are free to provide reserved legal activities through individuals who are authorised to do so (for example, solicitors and barristers)� initially, the grace period was due to end in march 2013� the deadline was later extended to april 2014� on 5th december 2012, the legal services board announced that the statutory grace period needed to remain in place for at least the next two years because “there was no regulator ready to provide an appropriate licensing framework”34� do the provisions relating to special bodies in the legal services act 2007 apply to law school pro bono clinics? most english universities and higher education institutions (heis) are exempt charities under the charities act 1993� on 1 june 2010 the higher education funding council for england (hefce) became the principal regulator of those higher heis in england which it funds and which are exempt charities35. the definition of not for profit body under the legal services act 2007 is a body which, by virtue of its constitution or any enactment (a) is required (after payment of outgoings) to apply the whole of its income, and any capital which it expends, for charitable or public purposes, and (b) is prohibited from directly or indirectly distributing amongst its members any part of its assets (otherwise than for charitable or public purposes)36� a charity (exempt or not) therefore falls within the definition� accordingly, it follows that if the body is carrying out reserved legal work, then, once the grace period has ended, it is required to be licensed under the legal services act 2007 i�e� it must become an alternative business structure� engaging with the regulator in april 2012, the legal services board released a consultation paper on the regulation of special 33 there has been some criticism of the way in which the act, and other literature on this subject, uses the terms “special bodies” and “non-commercial bodies” interchangeably� see the response from the solicitors regulation authority to the legal service board’s consultation [online] available at: http://www�legalservicesboard�org�uk/ what_we_do/consultations/closed/submissions_received_to_the_consultation_on_the_regulation_of_special_ bodies�htm 34 legal service board (2012) lsb responds to consultation by revising plans for regulation of special bodies [press release]� 5 december� available at: http://www�legalservicesboard�org�uk/news_publications/press_releases/ pdf/20121205_special_bodies�pdf (accessed 5 december 2012)� 35 according to hefce, all but 18 heis fall into this category� 36 section 207 legal services act 2007� 526 international journal of clinical legal education issue 20 bodies/non-commercial bodies37. the consultation closed on 16 july 2012 and 24 organisations38 in total responded� i prepared a response based on my concerns as to how the act applied to law schools carrying out pro bono activities39� i was subsequently invited to attend a stakeholder engagement meeting at the london office of the solicitors regulation authority on 6th november 2012� 13 representatives from not-for-profit organisations attended� there were no other representatives from higher education institutions� the key issue is that university clinics are rarely companies, entities, or any other type of “body”� they are activities sometimes embedded into the curriculum, sometimes not� some are voluntary, others compulsory� in my own institution, northumbria university, our clinic (the student law office) is a module� it is not a company, or some other form of separate legal entity or “body”� the question then becomes: what is the body to which the legal services act 2007 refers? is it the university within which the clinical activities take place? if this is the case then the act requires universities where pro bono reserved work is being carried out to become alternative business structures� i asked this question in the stakeholder engagement meeting and the answer was yes� an alternate course of action would be for the clinic to become a separate legal entity, distinct from the university structure, so that it can be a licensed body itself� yet, how many universities want to put this in place? and, is there any benefit to the clinic and the members of the public which that clinic serves, beyond complying with rules that do not seem to have been written with all non-commercial legal service providers in mind? lawworks, the national legal pro bono charity, raised similar concerns in its response to the consultation40� the introduction of the licensing rules, it said, will have a significant impact on law school clinics, especially as the clinic is often only a small part of the law school and the university as a whole� the burdensome rules posed “a real threat” to their “very existence”41� in addition, lawworks looked at other models of clinical pro bono work and provided detailed information about legal advice clinics and the ways in which those clinics would be affected by the special bodies provisions in the legal services act 2007� it used the example of a clinic based 37 legal services board (2012) consultation paper on the regulation of special bodies/non-commercial bodies that provide reserved legal activities [online] available at: http://www�legalservicesboard�org�uk/what_we_do/consultations/ open/pdf/3�pdf (accessed 20 may 2012)� 38 advice uk, advice services alliance, action against medical accidents, child poverty action group, chartered institute of legal executives and ilex professional standards, citizens advice, the council for licensed conveyancers, the legal services consumer panel, disability law service, friends of the earth, the institute for chartered accountants england and wales, lawworks, law centres network, liberty, northumbria university school of law, prisoners advice service, shelter, the solicitors regulation authority, the charity commission, the law society, the public law project, trades union congress and unison� the full responses can be read at: http://www�legalservicesboard�org�uk/what_we_do/consultations/ closed/submissions_received_to_the_consultation_on_the_regulation_of_special_bodies�htm� there were also three confidential responses� 39 campbell, e (2012) response to the legal service board’s consultation paper on the regulation of special bodies/ non-commercial bodies that provide reserved legal activities� [online]� available at: http://www�legalservicesboard� org�uk/what_we_do/consultations/closed/submissions_received_to_the_consultation_on_the_regulation_of_ special_bodies�htm� 40 lawworks (2012) lsb regulation of special bodies/non-commercial bodies lawworks response [online] available at: http://www�legalservicesboard�org�uk/what_we_do/consultations/closed/submissions_received_to_ the_consultation_on_the_regulation_of_special_bodies�htm� 41 ibid� 527 regulating clinic: do uk clinics need to become alternative business structures under the legal services act 2007? in the south of london where 20 – 30 volunteers attend a community centre one night a week and assisted over 60 individuals� it is entirely reliant on volunteers, with no permanent member of staff, and has a budget of less than £1500 per annum which is primarily spent on stationary, photocopying costs and legal resource� lawworks stated that they were very concerned “that services such as these, providing access to justice for those most in need, will be unable to continue if burdensome, complex or expensive regulations governing special bodies are implemented”42� the stakeholder engagement meeting demonstrated that there was no “one size fits all” model for the licensing of special or non-commercial bodies� there were significant differences in respect of how each body was organised and what their goals were for the future� for example, many of the organisations noted that they were going to use the new regulatory framework to allow them to have separate charging trading arms which would charge for advice� another issue is the provision of pro bono advice at a private university which would not fall within the definition of a special body� one would expect that they, if they are owned or managed by non-lawyers and are carrying out reserved legal activities, should be licensed now� however, there has been no confirmation that this is the case� indeed there is no reference to section 23 or section 106 of the legal services act 2007 in the legal handbook which was published by the law society last year43 nor has there been any discussion of the effect of these sections of the act on clinic in any capacity in any journal or press article44� changing the definition of reserved legal activity the stakeholder engagement meeting also highlighted that the solicitors regulation authority was considering whether general legal advice should become a reserved legal activity45� this would mean that special/non-commercial bodies providing any type of legal advice would need to be licensed as an alternative business structure once the transitional grace period was at an end� whether this will happen remains to be seen� in may 2013, the lord chancellor chris grayling rejected the legal service board’s recommendation that will writing should become a reserved legal activity, despite the support which the recommendation had� given this, it is hard to see how he would accept what would effectively mean abolishing the concept of reserved legal work altogether� what will the licensing regime look like? at present there is no information stating what the application requirements will be for noncommercial bodies following the expiration of the grace period� many law school clinics will not have obvious “owners”, “managers” and “shareholders” as envisaged by the act� for example, at northumbria university the student law office has a director (an academic post), and is also under the remit of an associate dean, the executive dean of the faculty of business and law, 42 ibid� 43 see n�18� 44 i wrote about the issue last year: campbell, e (2012) ‘no one size fits all: not-for-profit legal services providers cannot be treated like law firms’, solicitors journal, 156 (34), p�10-11� 45 the idea was also mooted in the consultation paper� respondents were asked: “what are your views on the proposed timetable for ending the transitional protection? should we delay the decision of whether to end the transitional protection for special bodies/non-commercial bodies until we have reached a view on the regulation of general legal advice?” 528 international journal of clinical legal education issue 20 the university board of governors and vice chancellor’s office� as lawworks note in their response to the legal service board’s consultation paper on the regulation of special/non-commercial bodies46, there is often a difference between the purpose of the clinic and the aims of the university as a whole� the student law office, like many pro bono service providers, does not handle any client money� it is a free legal advice clinic� the licensing authority currently uses turnover as a basis for the calculation of fees for commercial bodies who wish to become alternative business structures� the legal service board states that special bodies will need to pay a fee to be licensed� it has not announced how the fee will be calculated� the australian experience of alternative business structures and not-forprofit bodies section 134(2)(a) legal profession act 2004 states that a corporation cannot be an incorporated legal practice if it does not receive any form of, or have any expectation or, a fee, gain or reward for the legal services it provides� the difference between the provisions in the legal profession act 2004 as compared to the legal services act 2007 is striking� rather than the legal profession act 2004 trying to impose an “alternative” business structure on not for profit legal service providers, it firmly states that not for profit bodies are not permitted to become an incorporated legal practice� solicitors and barristers supervising clinical work in australia are regulated as individuals, as the position has been in england and wales� a university or clinic does not require any licence in order to provide legal advice� “pro bono clinic” is a term used to describe clinics that are staffed by private lawyers� in contrast, university clinics are referred to as that, or a community legal centre clinic� section 134(2)(d) of the legal profession act 2004 states that a complying community legal centre is not an incorporated legal practice� in england and wales, it is interesting to note that there is still confusion within the profession as to what special bodies are� the law society47 states that: “special bodies are a type of abs. it is currently unclear exactly which bodies will need to apply to become special bodies.” according to the legal services act 2007 and the legal services board’s interpretation of it, special bodies are not a type of alternative business structure – they are a type of entity which must, if carrying out reserved legal activities, become an alternative business structure� the drafting of the legal profession act 2004 does not allow for this uncertainty� there are no “special” bodies� a firm decides for itself whether it wishes to incorporate and then notifies the relevant authorities� as alexander ward said to the council of the law society of england and wales48, a licensing regime for alternative business structures was not an option for australia� 46 see n�36� 47 the law society (2012) setting up an abs [online] available at: http://www�lawsociety�org�uk/advice/articles/ setting-up-an-abs (accessed 31 october 2012)� 48 see n9� 529 regulating clinic: do uk clinics need to become alternative business structures under the legal services act 2007? the future for university law clinics in england and wales in december 2012, the legal services board released a document summarising the responses to its consultation paper and the next steps49� there was no reference to university-led legal clinics, nor to any of the issues which i raised in my response and at the stakeholder engagement meeting� the current expectation is that the transitional grace period will end in 2015� by this date, the solicitors regulation authority should have completed the licensing of all special bodies� the solicitors regulation authority states that the licensing of special bodies will be preceded by a significant programme of work in 2013/14 to develop the framework within which they will be licensed50� if this goes ahead, one option available to university based clinics (and other pro bono legal advice providers) is to stop doing reserved work� put simply, this would mean ceasing to offer full representation and moving to advice only� in the student law office at northumbria university this would mean that we would have to curtail the legal services provided to those requiring assistance with civil and consumer disputes� it is unclear whether this would also affect tribunal work such as employment, welfare benefits and criminal injuries compensation award appeals as no guidance on what constitutes “conduct of litigation” has been forthcoming� naturally, this would have a significant impact on the vulnerable and disadvantaged who access the services offered by clinics� it is also likely to have a knock on effect with the courts – increased numbers of self-represented litigants without any legal assistance and legal knowledge will arguably lead to delays and added cost� of course, if the change to the definition of reserved legal activities proposed by the legal services board is accepted then this option will not be available� the future in terms of the regulation of reserved work carried out by university based law clinics appears uncertain, as does the future of the regulatory framework in general� the ministry of justice has recently said that its aim is to reduce the burdens which hold back the legal industry� in june 2013, in a written statement to the house of commons51, justice minister helen grant said that the ministry of justice would conduct a review which would encompass the ‘full breadth’ of the legislative framework, including 10 pieces of primary legislation and more than 30 statutory instruments� the ministry of justice issued a “call for evidence” from stakeholders52� the rejection of the regulation of will writing and the government’s focus on removing “red tape”53 has led some to query whether there will be a legal services act 201554� for law school clinics which fall within the remit of the legal services act 2007, there are two ways of dealing with this issue� the first is to broach it head on and engage with the regulators as much as possible – highlighting problems, misunderstandings and the reduction in pro bono 49 legal services board (2012) response to consultation and next steps [online] available at: http://www� legalservicesboard�org�uk/what_we_do/consultations/closed/pdf/20121130_lsb_response_to_special_bodies_ consultation_and_next_steps�pdf (accessed 5 december 2012)� 50 http://www�sra�org�uk/sra/strategy�page 51 ministry of justice, legal services review call for evidence [online] available at: http://www�parliament�uk/ documents/commons-vote-office/june_2013/3rd_june/5�justice-legal-services�pdf (accessed 5 june 2013)� 52 i submitted a response on 2nd september 2014 detailing the concerns raised in this paper� 53 the red tape challenge: http://www�redtapechallenge�cabinetoffice�gov�uk/home/index/ 54 rose, n (2013) are we headed for a legal services act 2015? available at http://www�legalfutures�co�uk/blog/thelegal-services-act-2015 (accessed 15 may 2013) 530 international journal of clinical legal education issue 20 service the licensing regime may cause� the second is to wait and see what will happen� perhaps the transitional grace period will be extended indefinitely� perhaps the regulator will carve out an exemption for law school clinics� perhaps the ministry of justice will take heed of the calls for a complete overhaul of legal regulation55� in this author’s view, there needs to be a full and honest discussion between law schools, the legal services board and the sra so that the issue is not overlooked, or, worse, acknowledged but put to one side to deal with another day� 55 the law society, solicitors regulation authority and the bar standards board and bar council have all published their responses to the call for evidence� the bar standards board recommends that the legal services board should be removed and calls for a new legal services act in 2018� book review 150 empirical legal research in action: reflections on methods and their applications, edited by willem h. van boom, pieter desmet, and peter mascini (edward elgar), 2018, 271pp, £85.50 (hardback), isbn: 978-1-78536-274-3 in this volume, the editors have curated fascinating insights into the topic of empirical legal studies (els). the book is divided into eight chapters delivered by empirical legal scholars from europe and the united states. the book is recommended for any researchers new to, or about to enter, the field of empirical legal studies and adds value to the increasing literature on the methodological aspects of empirical legal research. it is published by edward elgar and available online for £85.50. the book begins with a clear explanation of its major themes. for the editors, empirical legal research complements doctrinal research due to the differing methodological premises. “empirical” is to be understood broadly: the key defining characteristic of empirical legal research is that the collection and use of observation is systematic. they do not discriminate between qualitative or quantitative approaches, and this is well reflected in the chapters selected for the book. they go on to briefly discuss a range of empirical methods, such as experiments, surveys, and case studies, which will be valuable to newcomers to the field, and which are discussed and critiqued in the chapters which follow. the book does not claim to be a handbook explaining in detail these different methods – other introductory books book review 151 exist for that. but the book will be useful for introducing new methods and offering a more basic understanding of their benefits and limitations. chapter 2, by hilke grootelaar and kees van den bos, focuses in the use of experiments and surveys in administrative law. they discuss the different types of experiments which could be utilised to study administrative law: laboratory experiments, artefactual field experiments, framed field experiments, and natural field experiments. they provide many ideas of experimental designs and explain how surveys can be used to enhance experimental research. the idea of entering a lab and conducting experiments might appear somewhat alien to legal scholars. however, they provide a well worked example of an experiment, testing trust in administrative law courts by varying (in a lab) whether the experiment’s subjects experience fair or unfair procedures, which is fully referenced, easy to follow, and could be adapted to other research questions. chapter 3, by christoph engel, and chapter 4, by christopher reinders folmer, continue the theme of experimental els. chapter 3, by some way the longest chapter in the book, provides a comprehensive literature review of survey-based els from law, economics, and criminology. chapter 4 covers a similar brief, but for private law. there is a little repetition across these two chapters, although some of the points, such as the limitations of experimental and survey research, may be worth repeating. the sheer amount of literature covered by these two chapters, in particular chapter 3, book review 152 makes them an ideal starting-point for prospective els researchers using these methods. chapter 5, by melissa rorie, sally s. simpson, and breanna boppre, completes the theme of experimental or quasi-experimental els which occupies the first half of the book. they explore their use of factorial surveys to address the impact of environmental law on the decisions people make. factorial surveys combine traditional surveys with the random assignment of case vignettes which allows the drawing of inferences as to how different facts affect respondents’ judgements. their clear explanation of the method, its benefits, and its pitfalls, means that it is a method which could easily be adapted to other areas of law. chapters 6 and 7, by julien etienne, and irene van oorschot and peter mascini, focus on the case study method of els. chapter 7 in particular offers a colourful, reflective, and engaging account of this kind of work on criminal courts. the volume concludes with chapter 8 by jan crijns, ivo giesen, and wim voermans. the authors consider what value empirical evidence can add to scholarship in the areas of private law, criminal law, and administrative law. ultimately, they conclude that the main use of els in law is to add data (or insights) to existing scholarship about the actual working of the law – and that this must be a good thing – allowing for better informed decisions from legal institutions. the authors note that some areas of law – such as criminal law due to its links with criminology – are quite advanced in terms of els history, whilst in other areas – book review 153 private law and especially property law and the like – els is virtually non-existent. scholars in these areas who believe – and most should believe – that most areas of legal scholarship could be improved by an element of empirical study (if done well) the editors of this book have created an insightful and lively discussion of els methods and theory. the authors of the chapters lead the reader through the research process, from initial idea, to developing research questions, and analysing empirical findings. the authors exhibit a good level of openness and honesty in how they conduct their research – good empirical research does not just happen, it takes a lot of work. the result is that the works are engaging in their style, and persuasive in the benefits of els and their particular methods. for a relatively short book, it is bursting with content and authority on empirical legal research, which is highly valuable for a scholar interested in conducting empirical research but not sure where to turn. the price of the book will undoubtedly place it beyond the reach of some. this is a shame because the book makes a valuable contribution to the literature in this area. paul dargue lecturer in law, northumbria university p.dargue@northumbria.ac.uk mailto:p.dargue@northumbria.ac.uk 563 the relationship between social justice and clinical legal education: a case study of the women’s law clinic, faculty of law, university of ibadan, nigeria ibijoke patricia byron paper presented at the 11th international journal of clinical legal education conference; 11 – 13 july 2012, radisson blu hotel, durham entering the mainstream: clinic for all short biographical statement i am the clinic administrator of the women’s law clinic, faculty of law, university of ibadan, nigeria. i ensure the effective running of the clinic on a daily basis. i supervise law students and ensure that the clinicians and students are working as a team. i have a special interest for women and children issues. i received both my bachelor of laws (with honors) and masters of laws from the university of ibadan, nigeria. i am a member of the nigerian bar association and the international federation of women lawyers (fida). 564 international journal of clinical legal education issue 20 i introduction there is a vital connection between legal education, public interest and social justice because lawyers use their education for the benefit of the society. they render their services to those who are unable to afford legal services and in addition, challenge injustice under the justice system. law students are trained by utilizing the techniques of clinical legal education and they are imbued with a social and professional responsibility to pursue social justice in society. much of the literature which propounds clinical methodologies in legal education implicitly understands that exposure to a social justice mission within a guided practice setting provides students not only with a key linkage between their legal education and their practice competence, but also with the intellectual foundation for a long-term engagement with the advancement of social justice.1 the proponents of a social justice dimension and clinical legal education often refer to the “dual goals of hands-on-training in lawyering skills and provision of access to justice for traditionally unrepresented clients”.2 this paper seeks to explore the relationship between clinical legal education and social justice using the women’s law clinic in the university of ibadan, nigeria as an illustration. ii background on clinical legal education in nigeria the network of university legal aid institutions (nulai) is a nonprofit, non-political and nongovernmental organization promoting clinical legal education, reform of legal education, access to justice and legal aid in nigeria. nulai nigeria was established on 16th october 2003. it pioneered the introduction and development of clinical legal education in nigeria and currently coordinates all existing law clinics.3 clinical legal education is the strategic approach adopted by nulai through legal empowerment and public legal education to bridge the gap of gross human rights neglect and violations resulting from ineffective legal aid systems and criminal justice administration; lack of pro-bono culture amongst lawyers; exclusion of the rural population from access to justice and social justice; poverty; and challenges of geographical location of communities. 4 prior to clinical legal education, law was taught to students via lectures and lecture notes without applying much of practical skills as they lacked the ability to analyse, interpret and apply theoretical knowledge to practical cases. this was reiterated by justice warren burger when he stated that “the shortcomings of today’s law graduate lies not in a decent knowledge of law but that he has 1 voyvodic, r. and medcalf, m. “advancing social justice through an interdisciplinary approach to clinical legal education: the case of legal assistance of windsor” washington university journal of law and policy. [vol. 14:101] retrieved through http://www.papers.ssrn.com/sol3/delivery.cfm%3... on june 2012 2 barry, m., dubin, j.c. and joy, p.a. (2000) clinical education for this millennium: the third wave, (reprint from) 7 clinical law review, volume 1, 69-70. the dual goals of clinical legal education are two-fold. students are taught professional and ethical values while at the same time learn professional responsibilities and the need to pursue justice and fairness in resolving client problems. 3 nulai nigeria 2010 activities report & strategy paper. retrieved through http://www.nulai.org/index. php%3foption%3dcom... on may 2012 4 nulai nigeria 2010 activities report & strategy paper. retrieved through http://www.nulai.org/index. php%3foption%3dcom... on may 2012 565 little, if any, training in dealing with facts or peoplethe stuff of which cases are really made.5 the law faculties had functioned strictly on the traditional way of teaching6 and they continued to function with a strict and conservative attitude towards the training program7 and were seen as institutions where theories of law were taught without imparting practical skills through the five year ll.b program.8 the absence of these practical skills was reflected in the quality of lawyers produced by law faculties. the only semblance of practical training to which the nigeria law student was exposed was at the nigerian law school. in the nigerian law school, a lot of skills subjects were taught in theory only without exposing the students to practical training. nulai therefore devised that cle should not only be taught in the nigerian law school but the training should start from the universities.9 these nigerian faculties of law, university based law clinics are non-profit organizations that allow law students under the supervision of qualified lawyers to provide free legal services and access to justice for the under privileged, deprived and neglected members in the different communities.10 a law clinic can be said to be an educative center where students are exposed to the socio-economic injustices in a society which should be viewed as a learning environment where students identify, research and apply knowledge; where they take on cases and conduct them as they would be conducted by actual lawyers.11 law clinics promote social justice and thereby, foster systematic change.12 it can also be defined as offices staffed by law students under the supervision of qualified lawyers who provide free legal services to indigent members of the community ( that is, they deal with live clients with real life problems).13 law clinics in nigeria serve as a medium for students to appreciate the social perspective of legal practice. however, with the addition to the establishment of university-based law clinics, the current nigerian law school curriculum has changed significantly and introduced clinicial legal education into its syllabus.14 exposure to live cases and practical situations through law clinics and the one year program at the nigerian law school give students opportunities to experience the realities 5 burger, w. (1973) the special skills of advocacy: are specialized training and certification of advocates essential to our system of justice 42 ford. l. rev. 227, 232 . law students should be trained while in the university so that they will start acquiring practical skills before they go to law school. 6 this meant that there was no form of interaction between the teacher and the students. the teacher would come to the class; dictate notes without educating the students on practical skills. 7 network of university legal aid institutions (nulai), training manual on clinical legal education teacher training workshop for law teachers, university of ibadan. 26th-27th february, 2010. pg.5 8 clinical legal education curriculum for nigerian universities’ law faculties/clinics retrieved through http://www.nulai.org/index.php%3foption%3dcom on june 2012 9 clinical legal education curriculum for nigerian universities. retrieved through http://www.nulai.org/index.php%3foption%3dcom on may 2012 10 this will depend on the location of the clinics 11 richard l., “clinical legal education revisited” professor of law, cardiff university, wales, united kingdom, pg.5 available at http://www.law.cf.ac.uk/research/pubs/repository/21 last visited on may, 2012 a law clinic best defines this situation where students learn when they come into contact with clients especially indigent people. they will then be able to put into practice what they learn from the classrooms in the clinic. 12 voyvodic, r. & medcalf, m. (2004) advancing social justice through an interdisciplinary approach to clinical legal education: the case of legal assistance in windsor, 14 wash. u. j.l. & pol`y 101, 103 13 mcquoid, dj. (1986) the organization, administration and funding of legal aid clinics in south africa, 1 nui 189-193 14 ibid. the relationship between social justice and clinical legal education: a case study of the women’s law clinic, faculty of law, university of ibadan, nigeria 566 international journal of clinical legal education issue 20 of legal practice and understand the context in which laws develop and how the legal system can improve. there are presently, fourteen established law clinics in nigeria.15 clinical legal education is in the midst of an exciting period of growth and development, prompting clinicians around the world to reflect on what clinical legal education’s remarkable successes over the past 40 years mean for the future.16 it is an emerging trend in nigeria which has been embraced by law teachers and students. it has impacted significantly on the knowledge of law and the acquisition of practical skills by law students.17 the final year students of the faculty of law women’s law clinic learn most effectively by participating in their own education when they come into contact with clients.18 legal education in nigeria operates under curriculum and regulations set by the council of legal education and the national universities commission. the students admitted after secondary school education go through a five-year program in the university. the candidates with bachelor’s degrees in other disciplines and with g.c.e. advanced level or equivalent are admitted to a four year degree program in law. iii conceptual clarification clinical legal education clinical legal education can be defined as an educational program grounded in an interactive and reflective teaching methodology with the main aim of providing law students with practical knowledge, skills, and values… clinical legal education is a dynamic style of learning also described as “experiential learning” or “learning by doing.”if done within a law school, a clinical program may be based on real or hypothetical cases.there are also “simulation” clinics – focused on role-playing and simulating real life situations.19 cle is essentially a multi-discipline, multipurpose education which can develop human resources and idealism needed to strengthen the legal system… a lawyer, a product of such education, would be able to contribute to national development and social change in a much more constructive manner.20 clinical legal education can also be the use of any kind of practical or active training for legal 15 ibid. for more information, see www.nulai.org 16 wizner, s. (2002), “the law school clinic: legal education in the interests of justice, faculty scholarship series. paper 1843. retrieved through http://www.digitalcomms.law.yale.edu/cgi/vie on june 2012 17 clinical legal education curriculum for nigerian universities’ law faculties/clinics retrieved through http://www.nulai.org/index.php%3foption%3dcom on june 2012 18 quigley, w.p. (1995) introduction to clinical teaching for the new clinical law professor: a view from the first floor, 28 akron l. rev. 463, 475 19 ateneo human rights center and open justice initiative, training manual of first southeast asian clinical legal education teachers’ training january 30 – february 3, 2007 manila, philippines, p. 23 20 kaur, k. “legal education and social transformation” available at http://alsonline.amity.edu/docs/alwjlegkk. pdf on june 2010 567 professionals to impart such skills as the ability to solve legal problems through the use of various dispute resolution mechanisms providing legal representation, the recognition and resolution of ethical dilemmas, promoting justice, fairness and morality.21 from the above definitions, clinical legal education has essential characteristics which are included in many clinical programs: firstly, they are linked to a law school; secondly, there are real facts involving real people and thirdly, students are exposed to practical aspects of the legal profession while working in a law clinic under the supervision of clinic supervisors. social justice social justice as it is would depend on a variety of factors, be it social, economic or political. it can be defined as the fair distribution of health, housing, welfare, education and legal resources on an affirmative action basis to disadvantaged members of the community.22 it conforms is to the natural law that all persons, irrespective of ethnic origin, gender, race or religion are to be treated equally and without prejudice.23 social justice through access to justice is aimed at educating the neglected members of a community while addressing their legal problems. the social justice dimension is used by clinical law teachers to teach students on how to educate clients on their rights. the focus on social justice is important “not only because of its effect upon clients but also because of its effect upon students.”24 what clinical legal education does is to take students out of their comfort zone and put them in a place where they are not familiar and which inevitably, enables them to interact with indigenous people. it emphasizes that everyone deserves equal opportunities; economically, politically and socially and it works on the universal principles that guide people in knowing what is right and what is wrong.25. iv relationship between social justice and clinical legal education the central goal of clinical legal education has been to provide professional education in the interest of justice. its objective has been to teach students to employ legal knowledge, legal theory, and legal skills to meet individual and social needs. the end result is that it instills in students a professional obligation to perform public service; and to challenge tendencies in the students toward opportunism and social irresponsibility.26 it therefore teaches students how to learn from 21 wilson, r.j. (1996) “clinical legal education as a means to improve access to justice in developing and newly democratic countries; (a paper presented at the human rights seminar of the human rights institute international bar association, berlin) 22 cf am honore “social justice” in r summers(ed) essays in legal philosophy (1968) 68; pn bhagwati “human rights as evolved by the jurisprudence of the supreme court of india” 1987 commonwealth legal bulletin 236. 23 what is social justice? retrieved through www.businessdictionary.com/definition on june 2012 24 guggenheim, m. (1995), fee generating clinics: can we bear the costs? 1 clin. l. rev. 677, 683 25 social justice definition: retrieved through www.socialjusticedefinition.com on june 2012 26 duncan, k. (1970) how the law school fails: a polemic, 1 yale rev. l & soc. action 71, 80. the relationship between social justice and clinical legal education: a case study of the women’s law clinic, faculty of law, university of ibadan, nigeria 568 international journal of clinical legal education issue 20 experience,27 enabling them to combine the theoretical and practical aspects of law and expose them to social justice issues. social justice and clinical legal education exposes students not only to lawyering skills but also to the essential values of the legal profession and the provision of competent representation; promotion of justice, fairness, and morality; continuing improvement of the profession; and professional self-development.28 clinical programmes have social justice as their objective. through social justice, students experience first-hand how people outside of their community live. it emphasizes societal concerns, including issues of equity, self determination, interdependence, and social responsibility.29 clinical law teachers have a responsibility to teach students about their social and professional responsibilities, the lack of access to justice and the perpetuation of social inequality.30 clinicians must therefore maintain their professional responsibility to clients once representation commences.31 clinical law teachers have the moral responsibility of making these students commit to social justice. they should engage with students on a deeper level by teaching beyond skills training.32 apart from the acquisition of practical skills, law teachers should not only expose students to the inequality of resources in a society, but should also inculcate in them a sense of their own ability and responsibility for using law to challenge injustice by assisting the poor and the powerless.33 clinics are client-centered and are all about building and sustaining relationships within these communities. they foster in students community lawyering. clinical legal education gives a window of opportunity to students by getting them out of the classroom into the real world of law, from which they return to a deeper understanding of how legal doctrine and legal theory actually works -or does not work34 and therefore, instilling in them the value and duty of public service.35 in other words, it empowers students and thereby empowers clients because the knowledge and experience gained by the students are put into practical use from their undergraduate days through to their years in actual practice after call to bar. 27 kreiling,k.r. (1981) clinical education and lawyer competency: the process of learning to learn from experience through properly structured clinical supervision, 40 md. l. rev. 284 28 the american bar association section on legal education and admissions to the bar, legal education and professional development-an educational continuum, report of the task force on law schools and the profession: narrowing the gap 207-21 (1992). this aba report is known as the maccrate report in recognition of robert maccrate, chair of the task force that produced the report. see also what is social justice? retrieved through www.wisegeek.com/what-is-social-justice.html on june 2012 29 bell, l. a. (1997). theoretical foundations for social justice education. in m. adams, l. a. bell,& p. griffin (eds.), teaching for diversity and social justice: a sourcebook (pp. 3-15). new york: routledge. 30 wizner, s. (2002), “the law school clinic: legal education in the interests of justice”. faculty scholarship series paper 1843. retrieved through http://digitalcommons.law.yale.edu/fss_papers/1843 on april 2012 31 chavkin d.f. (1998) “am i my client’s lawyer?: role and definition and the clinical supervisor, 51 smu l. rev. 1507, 1513 32 wizner, s. ibid. 33 aiken, j.h. (1997), striving to teach “justice, fairness and morality”, 4 clin. l. rev. 1, 6 n. 10 34 pincus,w. (2001) concepts of justice and of legal education today, in clinical education for law students 125, 131 (1980). 35 see wizner, s.(2001) beyond skills training, 7 clinical l. rev. 327,329 569 stephen wizner, stated that, “it was not enough to simply provide students the opportunity to experience the real world through the representation of low-income clients but to also sensitize the students as to what they were seeing, to guide them to a deeper understanding of their client’s lives…, and to help students develop a critical consciousness imbued with a concern for social justice”.36 through clinical legal education programmes, students develop a personal commitment to supporting the rule of law, human rights, and social justice.37 they realize how important legal representation is to the resolution of the client’s problems, thereby making the student conscious of her responsibility not only to the client38 but also to the surrounding communities. the most important aspect of their exposure is that they learn to develop and apply legal theory through the actual representation of clients.39 clinical programs therefore, offer students “a practical vision of law as an instrument of social justice,” and provide students an opportunity “to have social impact and create new and better laws”40 and enabling students understand how effective the legal system is.41 this is achieved by helping students develop the skill of self-reflection. a process described by donald schon as ‘reflective practice’ or ‘reflection in action’.42 these skills allow lawyers and law students to solve problems when faced with real life problems.43 according to buckley,44 the process of encouraging students to embrace a commitment to social justice in their future professional work is by maintaining that education infused with social justice and humanitarianism should produce a student who is characterized by three qualities. the first quality is an affective dimension of social justice: the student should have sensitivity to injustice and innocent suffering in the world. typically, an examination of injustice is what yields this sensitivity. this awareness, however, is not sufficient to ensure the transformation process. many students are aware of injustice and only pity those who suffer as a result. the second quality is an intellectual dimension of justice: the student should know the causes/conditions that cause and perpetuate human suffering by understanding theories of oppression and liberation. this is by having direct contact with live clients. this understanding is critical to motivating the student 36 wizner, s. (2001), beyond skills training, 7 clin. l. rev. 327, 338-39 37 a handbook of the open society justice initiative, legal clinics: serving people, improving justice 38 wizner, s. (2002), “the law school clinic: legal education in the interests of justice”. faculty scholarship series. paper 1843. retrieved through http://digitalcommons.law.yale.edu/fss_papers/1843 39 40 wizner, s. (2002), “the law school clinic: legal education in the interests of justice”. faculty scholarship series. paper 1843. retrieved through http://digitalcommons.law.yale.edu/fss_papers/1843 40 askin, f.(1999) a law school where students don’t just learn the law: they help make the law, 51 rutgers l. rev. 855 41 the law clinics help the students to gain a good knowledge of law. clinical legal education enables the students on how the law works in action. see clinical legal educationan overview, available at www.lawyersclubindia.com on 05/06/2012 42 schon, d.a. (1987) educating the reflective practitioner 31-36 43 for more, see menkel-meadow,c. (1994). narrowing the gap by narrowing the field: what’s missing from the maccrate report-of skills, legal science and being a human being, 69 wash. l. rev. 593, 600 44 buckley, m. j. (1998). the catholic university as promise and project: reflections in a jesuit idiom. washington, dc: georgetown university press. the relationship between social justice and clinical legal education: a case study of the women’s law clinic, faculty of law, university of ibadan, nigeria 570 international journal of clinical legal education issue 20 to engage in work that tries to change these conditions.45 the third quality is the pragmatic or volitional dimension of justice: the student must learn tools and skills that will allow him or her to effectively intervene and, in doing so, contribute to a vision of social justice. v benefits of clinical legal education the benefits of clinical legal education are numerous. students learn by doing or experiential learning46 it gives students the opportunity to explain why they are taking certain steps, this enables them to discuss and reconsider their actions.47 clinical programs are meant to teach lawyering skills, ethical and professional values, and to introduce students to the legal profession under the guidance and supervision of clinical law teachers.48 it can promote involvement with the indigenous community: the greatest contribution of clinical legal education is to ensuring access to justice for those who would otherwise have none.49 this the students achieve by their exposure to and interaction with the indigenous people in that particular community. the clinical method enables students to confront challenges, solve legal problems of clients and change their perspective or outlook on the rule of law. involving law students in legal services projects would give the students a deep appreciation of the importance of law clinics. clinics provide students with the opportunity to integrate, in an actual practice setting, all of the fundamental lawyering skills. students sharpen their understanding of professional responsibility and deepen their appreciation for their own values as well as those of the profession as a whole.50 whether actual or suppositional, real life or by simulations or/and by placement, the features of clinical legal education have been summarized by various researchers51 to include: a transition from theoretical teaching to practice; changing students’ mode of thinking; interactive teaching method that allow students and teachers to discuss freely; diversity of teaching places; unique evaluation method based on teaching objectives52; opportunity to apply knowledge; calls for reflection and self examination; embracing a skill based approach, allowing more issues to be 45 for more information, see goodman, d. (2001). promoting diversity and social justice: educating people from privileged groups. thousand oaks, ca: sage. 46 madhava menon,n.r.( 1998), “clinical legal education”, chapter 2, pg.25, eastern book company lucknow 47 see richard l., “clinical legal education revisited” professor of law, cardiff university, wales, united kingdom, pg.5 available at http://www.law.cf.ac.uk/research/pubs/repository/21 last visited on may 2012 48 see richard a. p., (1995) overcoming law 82 not sure what this number refers to? retrieved from http:// scholarship.law.marquette.edu/cgi/v... on february 2012 49 see charn, j. (2003) service and learning: reflections on three decades of the lawyering process at harvard law school, 10 clinical l. rev. 75, 77–78 (2003); howard,j. (1995) learning to “think like a lawyer” through experience, 2 clinical l. rev. 167, 176 50 a.b.a. task force on law schools and the profession, supra note 33, at 238. 51 see richard l., footnote 11 above and shuyun s.,“on the teaching objectives and special features of clinical legal education” in advanced educational technologies; p.167-169. retrieved through http://www. wseas.us/../edute-30.pdf 52 shuyun s., “on the teaching objectives and special features of clinical legal education” in advanced educational technologies; p.167-169. retrieved through http://www.wseas.us/../edute-30.pdf 571 debated openly; promoting students’ motivation and experience; actual practice of lawyering skills such as interviewing, negotiating, and analyzing, drafting, listening advising and confronting ethical issues that arise in real cases.53 clinical legal education is not only beneficial to students but also to clinical law teachers. it therefore encourages: strong interaction between teachers and students; development of theoretical knowledge in practice; significant amounts of feedback by both students and teachers which shows the level of knowledge gained by students from teachers.54 vi law clinics in nigerian universities one of the failings in contemporary legal education is that all too many students graduate with a vast doctrinal base of knowledge sealed within a context that cannot be translated into practice.55 the driving force behind the establishment of law clinics in nigeria was as a result of the review committee set up by the council of legal education56 which recommended that: “the adoption of knowledge and skills based curricula and teaching process that enhanced the competence of lawyers in practice irrespective of area or place of practice…there were recommendations on the teaching methods advising the adoption of active, student centered techniques as against the traditional lecture type which is most inappropriate for a vocational school.”57 it stated that more interactive methods in teaching should be incorporated into the curricula of students.58 vii the women’s law clinic, university of ibadan the women’s law clinic was established on the 18th july, 2007. it is a specialized clinic for women and women-related issues. the establishment of the women’s law clinic (wlc) at the university of ibadan was aimed at serving poor women with a focus on access to justice in ibadan community and its environs. it provides (free legal aid) pro bono services for the community; its main focus being less advantaged women (who are financially indigent) and in addition, sees to the protection of women’s rights. it encourages alternative dispute resolution mechanisms (besides litigation), that remedy wrongs and at the same time maintain the integrity and harmony of the community. this creates a win-win situation as students obtain practical legal skills and legal services are provided for the poor clients. 53 moscato,s. (2007) “teaching foundational clinical lawyering skills to first-year students” the journal of the legal writing institute ,vol. 13, 11/26/2007 54 a handbook on the practical forms of education at the faculty of law of the palacky university, olomouc. a project financially supported by the european social fund and the state budget of the czech republic. 55 mitchell, j.b.; hollingsworth, betsy r, clark, p & lidman, r. (1995) “and then suddenly seattle university was on its way to a parallel, integrative curriculum, 2 clin. l. rev. 1,21 56 the council of legal education is the body that governs legal education in nigeria 57 maman, t. (2009) globalization of legal practice: the challenges for legal education in nigeria, paper delivered at the 2nd annual business luncheon of s.p.a. ajibade and colegal practitioners, 19th november, 2009 pg.15. retrieved from http://www.spaajibade.com/admintoolnew/upl... on june 2012 58 the nigerian law school has done this by changing the one year curricula the relationship between social justice and clinical legal education: a case study of the women’s law clinic, faculty of law, university of ibadan, nigeria 572 international journal of clinical legal education issue 20 the clinic provides a legal platform for women, especially the poor, who have little or no access to justice as a result of social and cultural factors. the objectives of the wlc are: to provide free legal services to less privileged (indigent) women in ibadan and its environs; to train law students using the wlc in the practice of law by utilizing techniques of clinical legal education; to research and document the basic problems on women’s access to justice; and to carry out intervention programmes in order to facilitate women’s access to justice. clinical legal education in the faculty of law, university of ibadan, nigeria, is not taught as an independent course but it is integrated in criminology, public & international law at the undergraduate level; and comparative family law at the postgraduate level. students who work in the clinic are given a window into the real world of practice.59 this is achieved by the students’ involvement and interaction with clients on a daily basis. the wlc teaches and guides students, helping them look at issues from diverse points of view by ensuring that they understand the legal process in the context of social policies and processes. students are given a deeper and more meaningful understanding of the law, the legal profession and the process of becoming a lawyer. the students’ participation in the clinic is a graded component for which they earn credit points under the supervision of staff clinicians/supervisors. they are involved in clinical activities from monday to friday. they work on rotational shifts from 10am till 12.30 pm. the second shift starts from 12.30 pm to 3pm. as part of their active involvement in the clinic, students are divided into groups comprising of four to five students in a group and each group comes up with a typed proposal to visit any community within ibadan metropolis which they may want to visit. they go to these communities wearing their native attire so as to identify with the community members and they represent the wlc through short drama presentations, role-plays and jingles in market places or other places that has vast majority of indigent women. in their presentation, the students communicate by speaking in three different languages so that the women will understand the message they are trying to pass across.60 the aim of these outreaches is to create awareness about the clinic and state ways in which clinic activities can be tailored to meet the needs of these communities in ibadan and to make legal rights available to all members of the community, both men and women, even as it focuses on educating women in particular.61 the skills acquired in the clinic by the students include client counseling, interviewing skills, drafting of legal letters, etc. the postgraduate students are also graded for their involvement in the clinic. in their training, the wlc prompts students to recognize the role they must play in combatting the perpetuation of injustice. this is done when they come into contact with clients 59 mcquoid mason, dj (1985) “legal aid clinics in social service” in d.j. mcquoid mason (ed) legal aid and law clinics in south africa 64 60 the languages are english, the native yoruba language and pidgin english. the reasons for the different languages are as a result of diverse cultural background of individuals. the wlc therefore, tries to identify with the women they come in contact with. 61 each group educate the womenfolk on different areas of law pertaining to women. these issues are domestic violence, violations of human rights, widow hood relating to inheritance, tenancy/landlord issues, marital challenges. 573 who cannot get access to justice or do not know where to go to access justice. other clinic activities include community, market, hospital, church and secondary school based outreaches in which students visit on a regular basis. in their interaction with clients, difficulties can arise when students are faced with complicated issues. in such a case, the staff clinician on duty is called in. for example, each student is assigned case files they work with in a semester and they interact with the clients on a time agreed by both the client and the student. however, there are instances when the client gets too hot to handle for the student or the student might need an input from the staff supervisor; in such cases, there is an urgent call for the staff supervisor.62 as part of the educational training processes of students, seminars and workshops are organized in the first or second semesters. the training is led by staff clinicians in the wlc. the wlc, in training students also seeks to inculcate in students ethical lawyering. there is strong emphasis on the ethics of the legal profession and the clinic. as an illustration, when students come in contact with live clients, they are in the position where they take accountability for another fellow citizen. the clinic focuses on the use of interactive teaching methodology whilst at the same time, developing practice and practical skills such as interviewing, counseling and oral advocacy and placing emphasis on the ethical dimensions of legal practice.63 in settling disputes in the wlc, mediation and reconciliation techniques are used. the students are taught to use non-legal traditional methods to solve legal problems in the communities. the past sets of law students, 2010/2011 session, who took part in clinical work at the wlc and have attended law school have reflected the advantageous effect of clinical legal education.64 it changed their perceptions, attitudes, skills and sense of responsibilities that lawyers are expected to assume when they complete their professional education.65 as a result of the wlc sensitization drives, many cases have been referred to the clinic for legal counseling. for instance, the juvenile court66 in oyo state referred many rape cases involving minors to the wlc. the clinic was able to assist through counseling and legal assistance.67 the women who come to the clinic are from different ethnic and socio-economic backgrounds. cases that have come to the clinic include: rape, marital issues, sexual assault, domestic violence, trespass of land, etc. the wlc deals with cases such as: family law, land law, landlord/ tenancy, or any other matter that relates to women. the majority of the issues that come for 62 such cases include marital issues or spousal differences that needs the intervention of an adult 63 at the beginning of each session, each student is given a case file. the counseling sessions in the clinic are very interactive. the students are very free in answering questions; the clients are interviewed by the students under the supervision of the staff supervisors. 64 the class representative for the above mentioned session was interviewed whilst in law school. she was called on the phone and she stated that she benefitted immensely from the clinic especially in the area of client counseling. in addition, other students stated that they were able to come into contact with clients which they tremendously benefitted from. 65 clinical legal education: retrieved through www.vmslaw.edu/uploadpages/clinical last visited on june 2012 66 the juvenile court is a magistrate that deals with young offenders in oyo state. 67 the clinic is a walk-in basis for clients. there are over one hundred cases in the clinic. from 2011 to 2012, several cases involving minors were referred to the clinic. the clinic through its expertise was able to resolve these matters amicably. the relationship between social justice and clinical legal education: a case study of the women’s law clinic, faculty of law, university of ibadan, nigeria 574 international journal of clinical legal education issue 20 determination in the wlc are marital cases. the following are selected cases handled by the women’s law clinic. review of selected cases handled by the wlc wlc/cas/145 this case is about a woman who breeds pigs in her house. she requested legal assistance with regard to disturbance from her community members who had given her a notice to quit her private quarters due to the rearing of the pigs. the clinic intervened and invited the community members and they all came. the community members were very particular about the pigs because it was polluting their environment. the community members requested a visit from the clinic to the pig farm. the clinic acquiesed, an undergraduate student and post graduate student visited the location in question but did not perceive the pollution complained about. a report was given to the clinic by the students on their visit to the pig farm. the clinic referred the case to fida (international federation of women lawyers). the community members and our client were able to come to an agreement on the breeding of pigs. wlc/cas/041 this was a case of domestic violence. the client came to the clinic and informed the clinic that she had been cohabiting with her partner. the client received a court summons and she was accompanied by a postgraduate student. the presence of the student gave the client emotional support. the client and her partner have two children. the clinic intervened and settled the matter amicably between the parties. the postgraduate student was actively involved in this case. wlc/cas/167 the client b requested the assistance of the clinic with regard to her husband who had deserted her after the birth of their child. she came to the clinic for legal assistance in securing her child’s maintenance. the student clinician wrote a letter inviting the client’s husband to the clinic. he honored the invitation and he was interviewed and he stated his own side of the story. the student involved, upon her investigation, was able to get a real picture of the case. she was able to interpret and analyze the parties’ relationship. the matter is still on-going. wlc/cas/154 the client lodged a complaint against her husband’s brother who came to her house and asaulted her in the presence of her husband. her husband’s brother had threatened her on several occasions to leave his brother’s house. the clinic sent letters of invitation to the client’s husband and her brother-in-law. the parties were counseled by staff clinicians, undergraduate and postgraduate students. the clinic was able to resolve the matter amicably between the two parties. 575 wlc/cas/110 the client, b came to the clinic to report a case of trespass on her land. b is an old woman. some people had buried three corpses on her land without her consent. the trespassers had humiliated b in various ways and threatened to take over the property. b wanted the corpses evacuated from the land. the clinic intervened by sending letters of invitation to the trespassers. they honored the invitation. the trespassers agreed to the request. a letter of agreement was drafted for all the parties concerned and was signed. the matter was settled amicably between the parties. wlc/cas/144 q gave her car to a car dealer to sell for her. the car dealer had paid her the first half of the total sum but did not remit the balance to her. the third party, the person who bought the car, took the car but did remit the balance to the car dealer. letters of invitation were given to the car dealer and the third party. they all honored the letters of invitation. the matter was settled amicably between the parties. the third party agreed to pay the remaining balance to the car dealer, who would then pay the client. after the meeting in the clinic, a student called q and asked whether the money had been paid. q stated that the money had been fully paid by the third party. wlc/cas/106 the client had been married to her husband for six years. her husband abandoned her and moved out of the house. he left her alone with the children. the client came to implore the clinic to assist by getting maintenance for the upkeep and general welfare of the children. a letter of invitation was given to the client’s husband. he was counseled by the staff clinician, students and the clinic administrator. there was an agreement drafted where the husband to our client promised that he would pay the money monthly. he has since been paying for the monthly upkeep of the children to the clinic. wlc/cas/118 the client came to the clinic to lodge complaints of constant beating by her husband and the refusal of her husband to allow her to engage herself in any work. she sought the assistance of the clinic to enable her to have access to the children of the marriage who are with the husband. the clinic intervened by sending letters of invitation. her husband came to the clinic and stated his own side of the story. the clinic was able to settle the matter amicably between the parties. wlc/cas/126 the client, d is the landlady of her house. she rented the apartment to a tenant on a yearly basis. the client was to pay at the beginning of every year. the tenant had been living in the house for a year and five months. the tenant however, did not pay the remaining balance for the previous year. she came to the clinic for legal assistance in evicting the tenants from her house. a letter of invitation was sent to the tenant which was honored. the tenants were counseled by the staff clinicians and the students. the students led the interview session. the tenant agreed to pay up the balance of the previous year’s rent and to also, pay for the new year. the matter was settled amicably between the parties. the relationship between social justice and clinical legal education: a case study of the women’s law clinic, faculty of law, university of ibadan, nigeria 576 international journal of clinical legal education issue 20 wlc/cas/033 the client came to the clinic for legal assistance for the maintenance of three children born during her marriage with her husband. the client’s husband was invited. he was counseled by staff clinicians and students. the matter was settled amicably by the clinic. every month, the husband of the client pays for the upkeep of the children through the clinic. vii conclusion this paper has examined the relationship between social justice and clinical legal education and how law students acquire practical training in their involvement in law clinic with the illustration of the wlc. it should be emphasized here that in trying to access justice through law clinics, the social justice dimension should be brought to light and should not be relegated to the background. clinical legal education through the wlc trains law students dedicated to upholding the rule of law and it inculcates in society the idea that disputes can be resolved peacefully by using the rule of law without resort to a court of law. the law students get a firsthand look at how the rule of law functions. law students are trained in the university law clinics and acquire practical skills before they go to the nigerian law schools. they are comfortable with the benefits of clinical legal educationand how it has helped to shape their way of thinking. clinical legal education programmes focus on legal education and effective legal aid services and access to justice in developing countries. as mentioned in this paper, clinical law teachers have a role to play in molding their students into what they want them to become. there is the satisfaction law teachers experience when they have done their part in training students on the different techniques of clinical legal education. clinical legal education inculcates in students a sense of professionalism, a spirit of community lawyering and social justice. lawyers should see themselves as trustees of justice. on them lies the fiduciary responsibility to see to it that the legal system provides, as far as practically possible, justice for all citizens, not only for the rich and powerful.68 on the other hand, law teachers should realize that the students they teach will be advocates, judges, political persons and so they have a responsibility through their teaching to ensure their students commit to social justice. there are thirty-six states including the fct69 in nigeria and thirty five universities. there are only fourteen law clinics in nigeria. there is therefore a disparity in the number of students who benefit from clinical legal education. what about the other percentage of students who do not benefit at all from clinical legal education? it should be reiterated that the purpose of legal education is to prepare students for the practice of law. this process should therefore shape the legal profession in nigeria. there should be establishment of more law clinics in nigeria. education is a requirement for every aspect of human development without which human beings cannot appreciate the value of life’s entitlements. there is therefore the need for the existing law clinics under the umbrella of nulai to create forums for other universities in nigeria to inculcate clinical legal education in to their curriculum. clinical legal educationshould be seen as a social good in nigeria which has numerous benefits. the quality and introduction of practical teaching has deepened the perspective of the students. they are more confident in their interaction 68 winzer, s. op.cit. 69 fct is the federal capital territory which is abuja. abuja is the capital of nigeria. 577 with community members. this confidence they acquire will inevitably help when they enter into the world of practice and prepare them for the intricacies for the practical use of law. the clinic enables students to acquire lawyering skills before leaving the walls of the university. the skills they acquire are part and parcel of them for life. clinical law teachers therefore after all that has been said have the responsibility of creating opportunities for law students to recognize the injustices in society and in the legal system, to appreciate the role they play in challenging social injustice and in reforming the legal system.70 70 aiken, j.h. & wizner, s. (2004), teaching and doing: “the role of law school clinics in enhancing access to justice” 73 fordham l. rev. 997-1011 georgetown university law center retrieved through http://scholarship.law.georgetown.edu/facpub/303 on april 2012 the relationship between social justice and clinical legal education: a case study of the women’s law clinic, faculty of law, university of ibadan, nigeria 578 international journal of clinical legal education issue 20 from the field the european network of clinical legal education: the spring workshop 2015 rachel dunn and paul mckeown[footnoteref:2], [2: rachel dunn is a second year phd student and associate lecturer and paul mckeown is a senior lecturer in the school of law at northumbria university] northumbria university, uk rachel.a.dunn@northumbria.ac.uk paul.mckeown@northumbria.ac.uk introduction the european network for clinical legal education (encle) was established in 2013 with the aim of bringing individuals and organisations together to exchange ideas and work collaboratively to promote justice and increase the quality of law teaching through clinical legal education. according to its mission statement, ‘encle aims to support the growth and quality of [clinical legal education] programmes in europe through facilitating transnational information sharing, fostering cle scholarship and research, convening conferences, workshops and training session, establishing a website as an open resource for information sharing and promoting collaboration between cle programmes and legal professionals.’[footnoteref:3] [3: encle, mission statement available at: http://www.encle.org/about-encle/memorandum-of-understanding-statute-in-entirety (accessed: 24 september 2015)] in furtherance of the mission statement, encle have organised several conferences and workshops.[footnoteref:4] in april 2015, a workshop was held at northumbria university, newcastle upon tyne, uk entitled ‘preparing students for clinic’. the aim of the workshop was to generate discussion, through themed sessions, as to how clinicians can prepare their students for the clinical experience. sessions were facilitated by experienced clinicians from around europe who drew out ideas for best practice thus strengthening the abilities of attendees to prepare their students for the clinical experience. [4: for more information on other encle events please see, http://encle.org/news-and-events/past-events] the first session, which will be the predominant focus of this article, considered ‘why we do clinic’. it is important that as clinical educators we understand the rationale for what we do. if we do not know where we are going, we will never get there, which was highlighted at the start of the first session. other sessions included: · establishing a legal clinic · running and sustaining a legal clinic · standardised clients · approaches to preparation: legal knowledge or problem based learning · developing ethical sensitivity in clinical students · ethical aspects of clinical design and management · strengthening the social justice mission of clinic · impact of clinic in europe: what do we know so far and where do we go from here (and how)? the sessions covered various forms of clinical legal education, not just those working with live clients. however, throughout the two days other sub-themes started to emerge and the need to justify why we do clinic as a form of legal education was underlying in all sessions. there were approximately 42 clinicians who attended the workshop. the first session of the workshop was recorded, lasting approximately one hour. once we gained ethical approval to use this recording as data for an article and it was transcribed and analysed in order to highlight the main themes discussed during the workshop. attendees were notified of our intention to use the recording, provided with a username and password to access it securely on the encle website and time was given for them to listen to it. they could then decide if they consented to their comments being used and were able to exclude any comments which they did not want to be used in this work. the comments discussed below are only those from attendees who agreed for their contributions to be used. why we do clinic. the first session of the workshop, led by professor kevin kerrigan and carol boothby, asked ‘why do we do clinic’. the purpose of this session, as professor kerrigan highlighted, was to justify why we, as educators, should have law clinics in universities. this justification is not just to deans or vice chancellors, but also to the wider legal profession and community. this justification, or reason for doing clinic, is important for the sustainability of a clinic. however, an attendee also stated that it is important to know why we do clinic ‘because this will then shape in what we need for it, how we do it, how we communicate with the students, what goals do we proceed, what we emphasise. so this is a really important thing to know in order to shape the teaching process in the right way.’ so, it is not just justifying to those outside of the clinic, but also for those working inside it, ensuring the clinic is pedagogically sound. as such, the purpose of the clinic needs to be clear in our own minds as to achieve anything, we need to know what it is we are trying to achieve. there are various reasons why we establish clinics. aksamovic and genty highlight that it is important to distinguish between these reasons, and that two of the main goals of clinicians are ‘…creating social change by giving disadvantaged groups access to legal services; making experiential courses mandatory so that all students are better prepared for the profession they will be entering…’[footnoteref:5] however, this session highlighted other reasons as to why we do clinic and how we can justify it, which surfaced when we discussed the advantages and disadvantages, or the rewards and risks, of clinics. these advantages and disadvantages were to various groups, including the university, the community and the legal profession. discussing the advantages and disadvantages of clinics also brought up other areas of discussion. the themes of this session can be displayed visually, taken from the recording: [5: askamovic d and genty p, 'an examination of the challenges, successes and setbacks for clinical legal education in eastern europe' (2014) 20 the international journal of clinical legal education, p.437] the issues facing clinical programmes identified during the workshop are represented above. the themes flowing from these issues are the main areas which were covered during the discussions, the bigger the circle the more weight placed on the discussion. we then have other comments flowing from these main areas, which attendees highlighted as advantages or disadvantages, or risks and rewards, of clinics. the bigger the comments the more it was discussed. some of these issues link together, even though they were discussed during different themes. looking at the data from the session in this way shows how certain issues can link together, even though they may seem very separate in practice. furthermore, displaying the weighting of the conversations outlines what was most discussed, or was more of a concern to the attendees of the workshop. the issues have also been colour coded. comments in red represent issues which hinder the development of clinic whilst comments in green can be considered to advance the clinical mission, enhancing the education of our students and provide legal support to our community. comments in orange could either advance or hinder the development of clinics depending upon their implementation in practice. at the bottom of the diagram is a comment made by an attendee that did not appear to fit with the other issues discussed, but is an important consideration none-the-less. this attendee wanted to highlight that when setting up a clinic you must be prepared to fail, as so many clinics do fail when they are first established. also that establishing a clinic is a slow process and that you must be patient. this is a valid point to make to those who are considering setting up a clinic, and why it has been placed at the bottom of the diagram. for example, one attendee talked of the educational benefits of law clinics and how there ‘are certain things that a student can only learn in clinic.’ however, even though clinicians claim that this kind of pedagogy is beneficial to students, there is a lack of empirical evidence to help justify such a claim. to make such bold claims for clinics, which are logical to make, we must still be able to support them with evidence and research. these educational claims were then linked to reputation, the attendee advancing, ‘students want to come to our university because we have an attractive clinical programme.’ these claims are connected to many of the issues. reputation links back to students, and ultimately their satisfaction, to the community and their views of the university. in order to strengthen the reputation of clinic, we need more evidence. should clinics be producing more research into their work to justify what they are doing? something which was highlighted during the discussion, and is apparent from the diagram, is the conflicting perception of clinic from the legal profession. there was a comment about how some law firms do not like their trainees to have prior clinical experience and like to ‘mould’ them to their firm. this attendee stated that law firms can be resistant to taking on students who ‘already have a professional identity.’ however, when looking at benefits there is a comment that clinic is beneficial to the profession as they are gaining trainees who are better prepared for practice and would otherwise lack the skills needed if it were not for a student’s clinical experience. thus, it appears that there can be confusion over the expectations of a clinical programmes and what sort of position it can put students in when they have completed their degree. this difference of opinion is not surprising as all clinicians, and indeed the clinical programmes as a whole, have had different experiences with the legal profession and this will feed into their comments. furthermore, different jurisdictions will have different experiences and relationships with the profession, resulting in this area of discussion not meeting a consensus. it was highlighted that there are many reasons of why we do clinic, and these reasons will vary from clinic to clinic. whatever the reason, we must be able to justify our clinics and be honest about the rewards and risks of them. this justification will help us with our teaching and shaping the clinical programme for the students. getting the attendees to think about this from the start of the workshop helped during the other sessions to think about what kinds of clinic is best for their institution and why. issues throughout the two day workshop there were issues highlighted which made sustaining a successful clinical programme difficult. as the diagram above illustrates, the issues faced by clinical programmes are complex. as attendees started to open up about this more people started to share and we realised that these issues are common throughout clinics in europe. knowing what issues there are assists with overcoming them and move forward with our european clinical movement. we will focus the discussion on two issues identified in the workshop, resistance from the legal profession and resistance from the university. as key stakeholders in any clinical programme, it appears useful to address these concerns. resistance/opposition from the profession resistance or opposition from the profession arises from a lack of understanding of a clinical programme’s goals and how it operates. this opposition seems to stem from fear of a clinical programme taking away work from the profession. an attendee spoke about the opposition their programme faced when it was established, how local lawyers felt as though their livelihood was in trouble and they would face more competition for clients. the clinical programme had to ‘justify why we’re doing clinic and the type of clinic that we were running and ultimately, eventually, they came around and now they’re many of our biggest supporters in the local legal profession.’ if the resistance from the legal profession is broken down then the support they can provide for a clinical programme is invaluable. clinical programmes are operating all over the world and many professionals can appreciate and encourage the work they do. this issue is one which most clinical programme have faced in many countries. even countries which now have a well established clinical presence in their legal education have faced this problem when setting up clinical programmes. for example, giddings brings to light resistance from the profession in the early australia movement.[footnoteref:6] whilst this jurisdiction, and many others, have overcome resistance from the profession, this cannot be said of all jurisdictions, where it is still a major hurdle clinical programmes face. wilson has discussed this issue in relation to western europe, in particular germany. he states that clinical programmes, ‘…are seen as a threat to the earnings of those lawyers who have “paid their dues” by going through the rigorous process of admission to the bar.’[footnoteref:7] [6: giddings j, 'clinical legal education in australia: a historical perspective' (2003) 2003 international journal of clinical legal education, pp. 9-10] [7: wilson rj, 'western europe: last holdout in the worldwide acceptance of clinical legal education' (2009) 10 german law journal, p.834] this was addressed by another attendee, who stated that the work clinical programmes do does not really take work from the legal profession as ‘we are doing something else.’ this something else is arguably providing legal services to those who struggle for access to justice. however, providing this service does not mean competition for clients, as this attendee concluded, ‘but i believe there’s no country in the world where the problems of access to justice would be solved in a way that we would really be competing to clients. we might be competing for clients in some segments, but not in a global way.’ this is an opinion which has been argued before, particularly by wilson. from his research in germany he provides two rebuttals to the opposition from the profession. firstly, clinical programmes usually do not represent clients who could not otherwise afford legal services, nor would they be awarded legal aid. secondly, students are limited in the extent they can represent clients, stating that they focus instead on ‘a narrow range of matters.’ [footnoteref:8] a further rebuttal is the availability of legal services. for commercial reasons, the availability of legal services in a particular area of law may not be available. this may be due to the fact a case is not financially viable for law firms to pursue, or alternatively, it is not financially viable for a client to pay for the case regardless of their means. this would often be the case in low value disputes where the legal costs would outweigh the value of the claim. [8: ibid] there will always be a need for legal services for those who do not have access to it, making the competition with the legal professions low. whilst some clinical programmes may be competitive with the legal profession, this is likely to be the exception rather than the rule. an example of a potentially competitive clinical model would be the business clinic. it may be taking some work away from the profession as they are providing free services to those whose primary alternative option is to hire a lawyer. these clinical programmes will find it more difficult to rebut competition arguments and justify their programme as a need for the community. however, not all business clinics assist clients who can afford legal advice. there are clients in these programmes who cannot afford to pay heavy legal fees to help launch their business, and some programmes will establish this through a means test. further, some business or transactional clinics may only assist charities. whilst it is arguable that a charity, especially larger charities would pay for legal services, there is an argument that the wider social benefit is served by retaining money for charitable purposes rather than paying legal fees. even law firms often provide assistance to charities on a pro bono basis recognising these wider social benefits. there is also a strong argument for the pedagogical benefits this kind of clinical programme can give to students, allowing them to work in an area of law whereby they may not otherwise get an opportunity. as campbell states, ‘it would be a shame if clinics focusing on transactional work had to continually fight for acceptance, as a consequence of a perceived detachment of that kind of work from a social justice ideology.’[footnoteref:9] if a clinic is providing a sound education for students, we may ask whether we do have to use social justice as a justification for our clinics. surely a good education and an introduction to practice can only benefit the profession, providing them with new lawyers who have some experience and equipped with the necessary skills. [9: campbell e, 'a dangerous method? defending the rise of business law clinics in the uk' (2015) 49 the law teacher, p.175] it is important in growing the clinical movement to establish what resistance there is to clinical legal education from the profession across europe, and the reasons for this resistance. we cannot address the problem unless we know the reason for it. however, the anecdotal evidence suggests that measures can be taken to lessen the resistance. fundamentally, it is important to open a dialogue with the local legal profession and be clear about what you are doing and why you are doing it. if clinical programmes are seen as a benefit and not a threat, it is likely that they will attract support, rather than resistance. resistance/opposition from the academy this issue is one which has surfaced in many institutions across the globe. when clinical programmes began to evolve there could sometimes be opposition faced internally as well as externally.[footnoteref:10] this opposition seems to still be alive in some european clinical programmes, especially the newer programmes. one attendee stated that: [10: for more information please see, iya, p.f. ‘fostering a better interaction between academics and practitioners to promote quality clinical legal education with high ethical values’, international journal of clinical legal education, vol.3, 2003, pp.41-57. ] ‘…often academics within the faulty, within the school, can be resistant. or, even if they’re not resistant, uninterested. and i think that a clinic can work really well when everybody’s convinced with its value, even if they don’t work within it. and they know what the students are doing with it because it can affect their own teaching.’ bloch characterises the tension in legal education as a ‘conflict between theory and practice.’[footnoteref:11] whilst theoretical scholarship has an established place within the academy, with a clear status and role for those who engage, practice or clinical scholarship has struggled to establish legitimacy. perhaps this struggle goes to the core of clinical legal education, and in particular the background of many clinicians. many clinicians are lawyers, not traditional academics, and see their role as teaching legal skills. as such, clinicians may sense their role is practiced based, and not focused on publishing the theory. thus, it is arguable that it is clinicians who have established the barrier, or at least contributed to it. [11: bloch f s, ‘the case for clinical scholarship’, international journal of clinical legal education, vol.4, 2004, pp.7-21 ] however, there are also cultural barriers to overcome if clinicians are to become an accepted member of the academy. some law schools, especially in countries such as germany, prefer the traditional teaching methods and do not think there is a place for practical legal teaching within their schools. this is better left for after a student has finished their degree. [footnoteref:12] [12: for example see bucker a and woodruff a, 'the bologna process and german legal education: developing professional competence through clinical experiences ' (2008) 9 german law journal, p. 609] it is necessary to consider that theory and practice are not mutually exclusive concepts. whilst theory leads to practice, practice also leads to theory and teaching at its best shapes both research and practice.[footnoteref:13] boyer posits that the term ‘scholarship’ should have ‘a broader, more capacious meaning, one that brings legitimacy to the full scope of academic work.’[footnoteref:14] in doing so, he identifies that academic work has four separate but overlapping functions: the scholarship of discovery; the scholarship of integration; the scholarship of application; and the scholarship of teaching.[footnoteref:15] [13: boyer e l, ‘scholarship reconsidered: priorities of the professoriate’, the carnegie foundation for the advancement of teaching, 1990] [14: ibid] [15: ibid] the scholarship of discovery is the closest element to “research”. boyer states that the scholarship of discovery ‘contributes not only to the stock of human knowledge but also the intellectual climate of a college or university.’[footnoteref:16] scholarship of integration is connected to the scholarship of discovery but relates to the connections across disciplines and the knowledge is seen within a larger context.[footnoteref:17] he goes on to state that the difference between “discovery” and “integration” can be understood in the questions asked. academics engaged in discovery ask, “what is to be known, what is yet to be found?” however, academics engaged in integration ask, “what do the findings mean?”[footnoteref:18] the third element, the scholarship of application, addresses how knowledge can be applied to consequential problems and help both individuals and institutions.[footnoteref:19] boyer is careful to point out that application is not a one-way street; knowledge is not merely discovered then applied. indeed, new intellectual understanding can arise from the application of the knowledge; theory and practice interact so that one will renew the other.[footnoteref:20] finally, the scholarship of teaching is more than transmitting knowledge, it is “transforming” and “extending” it as well.[footnoteref:21] the scholarship of teaching is important as it not only educates but also entices future scholars.[footnoteref:22] [16: ibid, p.17] [17: ibid, pp.18-19] [18: ibid, p.19] [19: ibid, p.21] [20: ibid, p.23] [21: ibid, p.24] [22: ibid, p.23] hutchings and shulman stated that the ‘scholarship of teaching’ has three ‘central features of being public (“community property”), open to critique and evaluation and in a form that others can build on’. they go on to state that there is a fourth attribute, namely ‘that it involves question-asking, inquiry and investigation, particularly around the issues of student learning.’[footnoteref:23] [23: hutchings p and shulman l, ‘the scholarship of teaching: new elaborations, new developments’, the carnegie foundation for the advancement of teaching, 1999] in applying the notion of scholarship of teaching to clinical scholarship, clinicians are uniquely placed to study the legal profession from a different perspective to their academic colleagues. indeed bloch highlights that that a ‘great strength of clinical legal education is that it embraces its ties to the “real world” of law practice. the clinical methodology gains much of its richness when student are immersed in actual lawyer work, with all of its complexities and ambiguities.”[footnoteref:24] it is thus important that clinical work is made public allowing others to scrutinise and build upon the work already undertaken. whilst there has been an historic tendency for clinicians either not to engage in scholarship, or alternatively to talk over one another, this has hindered the development of clinical scholarship within the academy. by engaging in such scholarship, arguably clinical scholarship will become an accepted part of the academy and thus reduce internal friction. [24: supra n.7] however, there are also practical difficulties faced by clinicians if they are to be on equal footing to other academics. as well as running the clinic they may also have the same responsibilities and duties as the other academics within the institution, but will not get paid extra for this extra work or have their other workload lessened. this is an issue which could have an impact on the running and sustainability of clinical programmes. clinical programmes are becoming an accepted form of legal education and the clinicians running them should be allowed the time and support to do so. whilst clinicians work extremely hard to make their programmes successful, there can be a lack of recognition. they may not be publishing as much as other members of academic staff or their achievements not as widely recognised. for example, donnelly argues that, ‘[i]t is grossly unrealistic to hold clinicians to the same boilerplate standard as our colleagues when seeking promotion, especially when there is still little recognition granted to clinical work.’[footnoteref:25] [25: donnelly l, 'clinical legal education in ireland: some transatlantic musings' (2010-2011) 4 phoenix law review, p.15] the publishing element of a clinician’s work provides another issue in the argument of scholarship. as lawyers, and not academics, some clinicians are not provided with, or encouraged, to undertake training in how to conduct research and publish it. this makes it difficult for clinicians to produce the work they would like to and push them further to this scholarship status. furthermore, even if this training is provided not every institution allows sufficient work allocation to conduct and write up research. if a clinician wishes to write research for publication this comes out of their own time, which they do not seem to have a lot of when running a clinic. if clinicians are to have equal status within the academy, it is important that they undertake research or, clinical scholarship. as the clinical movement it growing it is imperative that we gather evidence as to the effectiveness of our practice and that we are sharing our experiences. by making our work public, we allow others to learn from our experience and build upon our work, thus improving the quality of the educational experience. considering these differences, clinicians have a choice as to whether they argue their work is different to that of traditional academics, or whether to argue it has the same status. bloch states that if the distinction is rejected, this can result in ‘a “blood bath” at the time of promotion or tenure.’[footnoteref:26] however, acceptance of the distinction creates ‘an almost unavoidable second-class status for the clinical program and its faculty.’[footnoteref:27] it seems that if clinicians wish to establish their equal status within the academy, their work must be held as equivalent to that of traditional academics. if clinicians are engaged in scholarship, then this must surely have the same standing as others engaged in scholarship. [26: supra n.7] [27: ibid] further, it is only through engagement in clinical scholarship that clinicians can address the issues identified above. examples include evidencing the benefits of clinical programmes, identifying and tackling the barriers to the clinical mission and enhancing the quality of the programme for the students. these are important issues when we ask why we do clinic. as clinical programmes grow within europe and with the knowledge that they can provide students with a rich legal education, we should consider whether there is a divide between academics and clinicians. there should be a mutual appreciation between academics and clinicians of the work done and the value it holds to a university. arguably with the recent educational reforms in europe and the introduction of the bologna process[footnoteref:28] clinic will help with implementation of this.[footnoteref:29] [28: for more information on the bologna process and its implementation please see http://www.ehea.info/uploads/submitedfiles/5_2015/132824.pdf ] [29: supra n.6] where do we go next? as the european clinical movement develops, it is clear that there are challenges ahead. in addressing these challenges, clinicians need to reflect upon their own practice and establish their own identity. this article merely highlights issues raised throughout the two days of the workshop. we must establish a clear vision of the next steps to take and to keep the european clinical movement pushing forward. however, during the discussion there was not a consensus reached on certain issues, different attendees haven different experiences in their clinics. this may suggest that it is not possible to establish a single identity for a european clinical movement with each jurisdiction facing its own challenges. we cannot treat all jurisdictions in the same way, but it may be possible to establish a common thread or adapt the model as and when necessary. research in clinic should now be a leading agenda throughout europe. we learnt during the last session of the workshop that the amount of peer reviewed articles published in clinical legal education is vast. however, europe does not produce as much as other continents. in order for our movement to keep growing we must share experiences, failures and successes. publishing research is a great way to do this. furthermore, the research we can produce will help to justify why we do clinic. as tomoszek states: ‘the positive contribution of clinical legal education towards the overall outcome of legal education system still has not been proven by a rigorous empirical evidence-based study – it is mostly based on belief of clinical teachers and clinical students.[footnoteref:30]’ [30: tomoszek m, 'the growth of legal clinics in europe faith and hope, or evidence and hard work?' (2014) 21 international journal of clinical legal education, pp. 99-100] encle provides the network to support and facilitate this agenda across europe. supporting the growth and quality of clinical legal education through, amongst other things, research and scholarship is at the core of the encle mission. whilst this belief is strong and the claims of the benefits of clinical legal education are logical to make, there is still a need for the rigorous and empirical research to be conducted. this will help to make our argument and justifications even stronger. with sharing these experiences comes the opportunity to help develop clinical programmes throughout europe. the opposition faced by clinical programmes is sometimes great and with help from other established programmes, and experienced clinicians, they can be overcome. 220545d_jcle_july 2007 comp constructing a clinical legal education approach for large multicultural classes: insights from the nigerian law school ada okoye ordor* introduction. the nigerian law school presents a unique case study in the teaching of law in a developing society for several reasons.1 first, attendance at the institution for an average period of ten months is a pre-requisite for sitting for the nigerian bar final examinations to qualify as a barrister and solicitor. the nigerian law school administers uniform training for all aspirants to the nigerian bar, irrespective of where practice is to be conducted. this means that all lawyers currently in practice in nigeria, apart from those who passed through the inns-of-court in england from the colonial period through the 1960s, attended the nigerian law school.2 secondly, each campus is a microcosm of nigerian society, as law graduates from all the accredited law faculties are distributed across the four campuses.3 thirdly, in the highly competitive nigerian labour market, the bachelor of laws degree (ll.b), which is a first degree, is considered incomplete without the bl, which is obtained on successful completion of the bar examinations.4 although the ll.b and the bl are distinct qualifications, they are perceived as fused by employers. the bl is viewed constructing a clinical legal education approach for large multicultural classes: insights from the nigerian law school 65 ∗ former senior lecturer and acting head, department of legal drafting and conveyancing, nigerian law school, enugu campus; panelist, 2nd nigerian client interviewing and counselling skills competition 2006; currently postdoctoral research fellow, faculty of law, university of cape town. 1 the equivalent of the nigerian law school in south africa is the school for legal practice. 2 the development of legal training in nigeria is discussed in detail in c.o. okonkwo, “a historical overview of the legal profession in nigeria” in i.a. ayua and d.a guobadia (eds.) legal education for twenty-first century nigeria (lagos: nigerian institute of advanced legal studies, 2000) pp.1-37. 3 campuses are located in abuja in the north-central, kano in the north-west, enugu in the south-east and lagos in the south-west. 4 bl stands for barrister-at-law. socially as the minimum demonstration of competence in law, whether or not a person intends to practice. indeed, employers prefer to see the one-year legal practice course at the nigerian law school as the final year of the ll.b. these factors, in addition to the traditionally acknowledged roles of law in developing societies, make it imperative that legal education is made more comprehensive, relevant and responsive to changing situations. a key vehicle for achieving this is clinical legal education. this paper starts by discussing ways in which the current teaching system at the nigerian law school reflects a clinical approach. issues examined include classroom participation, court and law office attachment, law dinners, moot court and other practice week activities. certain issues are problematised and options for improving clinical teaching methods for large multicultural classes are proffered. central to the options proffered is a project management approach where, for instance, students do not just participate in a moot court session, but the class executes a moot court project. this means that every stage of the project is constructed as a distinct, but integral exercise in which students need to develop competencies. this would create the opportunity for students to develop ‘extended’ lawyering skills of project management, reporting and evaluation in addition to the already established skills of research, interviewing, counselling, negotiation, advocacy and so on, much in the same way as medical doctors in training are involved in public health projects, within which they practice community medicine. clinical projects would as much as possible, accommodate personal skills preferences, while methods of assessment suited to each area of competence would be developed and applied as part of the overall assessment of students’ performance. in the paper, the term “law school” is used to refer to the nigerian law school, while “law faculty” is used to describe the faculty of law located in the universities. current teaching methods5 in addition to lectures, a number of learning methods are incorporated into the law school calendar as co-curricula activities. these do not form part of the assessment for the overall performance of students, as this is determined solely by performance in the bar examinations. lectures at each campus of the law school, the class is made up of the entire student body. this means that all the students are in class at once. currently, student population oscillates between 500 in the smallest campus and approximately 1,500 in the largest campus.6 lectures are held for students in a large auditorium on each campus, and lecturers deliver lectures using audio-visual equipment which include a microphone and a multimedia system. each course is taught four hours a week, with one hour allotted to each lecture four days in the week. the large class size presents a major challenge to optimal student-participation. lecturers are constantly devising interactive methods to fit into the limited time-allocation for each class.7 66 journal of clinical legal education july 2007 5 some of these methods are briefly discussed in p. c. anaekwe, “vocational aspects of legal training: critique of the content and scope of the law school curriculum” in i.a. ayua and d.a guobadia (eds.) op. cit. at 99-101. 6 the only exception to the extra-large class number is the preliminary bar part 1 course which ll.b. graduates of non-nigerian universities take before proceeding to the bar final course, which tends to have an average of 100 students. 7 more is said on this under “classroom participation” in the section on deconstructing current teaching methods. moot court two scenarios are created, one for the criminal mock trial and the other for the civil moot court. an auditioning is conducted to select students suited to play particular roles. typically, for one moot court session, participants are trimmed down from about one hundred students who may indicate interest, to about twenty, who actually end up playing roles. of these twenty, about eight appear as counsel, four on either side, two feature as court clerks, while the remaining eight is made up of witnesses on both sides. in the course of rehearsals and before final selection, another ten may have been exposed to research, case preparation and advocacy skills. many other students watch the rehearsals. court attachment for a period ranging from two to five weeks, students are posted to various courts across the country to observe court proceedings. in this exercise, students are attached to specific judges or magistrates who usually assume the responsibility of reviewing court proceedings with students at the end of each day’s sitting, or periodically. this exercise serves as a prelude to more sustained court attendance which follows during the law office attachment. law office attachment students are posted to various law offices across the country, where they intern for a period of about two months. this usually comes immediately after the court attachment, and the entire exercise is known as court and law office attachment. in a dual session, that is in an academic year when the law school runs two alternate sessions, the two exercises are split over two terms. this is because the two sets of students enrolled at the law school within a given year alternate in terms of residence on campus, making it necessary to separate the court and law office attachment periods instead of conducting them back-to-back. tutorials8 the class is divided into five smaller groups of about 55 students each for tutorials. in this way, the five tutorial classrooms accommodate about 275 students in total. the other 425 to 525 students (depending on the size of enrolments in a particular session) receive tutorials in the auditorium. this arrangement is alternated every other week to give the auditorium group the benefit of learning in the smaller classes. the tutorial period is one hour of answering problem questions, which usually comes up between 3pm and 4.30pm. tutorials usually start in the second term of lectures. legal skills video screening a set of video tapes on various aspects of legal practice are shown to students during the practice week. students are divided into smaller groups for this purpose and the legal skills video tapes produced for the english bar are used. subjects covered include interviewing skills, advocacy skills and negotiating skills. constructing a clinical legal education approach for large multicultural classes: insights from the nigerian law school 67 8 the information on tutorials given here is based on the system at the enugu campus. each campus organises tutorial classes to fit into its facilities. guest lectures in the course of the academic session, lawyers in various fields of practice are invited to speak to the students on different areas of expertise. guest lecturers are drawn from a variety of sectors, institutions and disciplines. these include the corporate affairs commission, the securities and exchange commission, the energy and petroleum industry, information technology, alternative dispute resolution and so on. occasionally, lawyers visiting from other countries or from diplomatic missions within the country are involved. practice week the practice week is a period lasting from monday to friday, when various activities with a focus on legal practice are held. it is in the practice week that the moot court, legal skills video screening and certain guest lectures are held. these include lectures on the criminal code, the penal code, alternative dispute resolution and information technology in law. the practice week usually comes up in the second lecture term. law dinners twice in the session, students participate in law dinners on campus. dinners are held over a period of three to five days, depending on the size of the student population on each campus. students are divided into groups of 150 to 200, and each group dines on one of the dinner days.9 dinner guests are usually made up of judges, senior practitioners, and distinguished academics. lawyers on the staff of the law school attend and are assigned to dine on different days. the dinner usually ends with a brief address by one of the visiting jurists on aspects of professional ethics and lawyers’ role in society. applying the experiential learning classification to the practical teaching methods discussed in this section, the moot court would fit into simulations, while the court and law office attachment would be categorised as forms of externship.10 deconstructing current teaching methods in this section, a constructive critique of the teaching methods described above is done. the purpose is to highlight certain dynamics of law school teaching that can be positively directed to shape and facilitate a more effective learning framework. the subject matter of this section is treated under three broad heads, namely, academic, vocational or co-curricula and administrative. academic classroom participation as earlier mentioned, the class size is as high as the campus student population, a situation which severely limits participation. each lecturer is tasked with devising creative methods of promoting student participation in lectures. one way is to throw a session open to random participation. often, when this method is applied, only a handful of students tend to participate. from students’ 68 journal of clinical legal education july 2007 9 this is the practice at the enugu campus. 10 see d.f. chavkin, clinical legal education: a textbook for law school clinical programs (cincinnati: anderson publishing co. 2002) pp.4-5. point of view, it takes courage to ‘march up’ to the podium and use the microphone to ask a question, proffer an answer or make a contribution before hundreds of their peers. while the few who summon this courage tend to get more confident with repeated attempts, the staggering majority remains passive. alternatively, or in addition, the lecturer may decide to walk down the aisles, talk show-style, offering the cordless microphone to those who indicate that they wish to speak. this tends to generate responses from more students and especially from those who would not ordinarily stand and face the class. since they speak while seated in their regular seats, and out of view of the majority of the class, a large chunk of the nervous response to crowd engagement is removed. the reasoning seems to be: after all, they can only disagree with my voice, not with me! another option is a phased participation. here, the lecturer rotates between distinct blocs of students according to their seating arrangement. the auditorium is divided into blocs, each made up of several rows by criss-crossing aisles. each row is made up of four connected chairs. the key facilitating factor in the phased method is that seating arrangement is permanent. this makes it possible to continue from where the class stopped the last time. while the bloc of students who participated in the last class can often safely assume that they are ‘off-the-hook’, it is not known which bloc will be next, as there is no particular sequence. this promotes a more evenly spread participation, and it serves to get many more students to prepare for the class. other factors that affect classroom participation are evaluation mechanisms such as needs assessments. when a needs assessment survey was mooted in the legal drafting and conveyancing class in july 2006, there was an overwhelmingly enthusiastic response from students. all were keen to indicate what two topics in the course they found most challenging. the results of the survey clearly confirmed the assumptions of the lecturers in the course, even though this kind of survey had not been done with this class before. it was striking how students readily responded when faced with a motivation that was directed at identifying and strengthening their areas of weakness, rather than testing their strong points endlessly. the dynamics of classroom participation are further affected by the context created or assumed by illustrations used in teaching, especially in multicultural classes. these illustrations could be names, imagery, terminologies used in problem questions, simulations and so on. for instance, it is very common to use examples from large commercial centres to illustrate commercial transactions in teaching. such cities may have the largest single component group in the class, but would often not outnumber the total of all the other students. for example, the status of lagos as the commercial capital and formerly the political capital of nigeria, as well as the sole location of the nigerian law school for over thirty years, made it a very handy teacher’s tool in illustrating commercial transactions. where an illustration was made using streets and areas in lagos, a section of the class could identify, but where names peculiar to another part of the country, was used, it drew contributions from a different set of students. these students may not have been conversant with lagos and may have no plans of practising there as lawyers. the nuances of classroom interaction highlighted in this section and tabulated below are indicative of the internal dynamics which teachers of large multicultural classes expect to engage with and adapt to clinical forms of legal education. multiculturality does present a platform for the exercise of creativity and innovation in the clinical teaching of law. a recent catalyst in this respect came by way of intensive clinical teacher training workshops involving all lecturers of the nigerian law constructing a clinical legal education approach for large multicultural classes: insights from the nigerian law school 69 school.11 in this way, a long dormant potential is being stirred up at an institutional level, a development which can only be advantageous for the future of legal education in nigeria. table 1: class dynamics element/ activity challenge size participation diversity identification multi-campus structure uniform curriculum assignments administering regular assignments is often not feasible with a large class. still, it is important to have a means of assessing students’ understanding of concepts and application of principles. assignments can be given in general to the whole class. alternatively, parts of one broad assignment or different assignments can be given to different blocs of students, in which case there would be group presentation of assignments. with the emphasis on producing ‘internet ready’ lawyers, lecturers are now required to create assignments that require students to search for resources on the internet.12 the fact that students are all in class or out of class at the same time means that there is pressure on the limited number of computers at certain times of the day. with a computer-student ratio of about 1:40, it is imperative that assignments are structured in a way that some members of the class, at least, are able to attempt them, given the infrastructural limitations. one way of doing this is to give simple assignments, one at a time, not to the whole class, but to groups of students, determined either by classroom blocs or tutorial groups or some other workable classification model. a more involving assignment, suitable for the whole class, could be given at the end of the term as a holiday assignment. the academic activities described so far are complemented by vocational exercises, which are examined next. vocational or co-curricula activities practice week activities one week in the ten-month academic calendar is designated as practice week and scheduled for vocational learning activities, earlier mentioned. the highlight of the practice week is the moot court. a mock criminal trial and a civil moot court are usually held. the process leading up to this starts with a compilation of the names of students who indicate an interest in participating in the exercise. a scenario is created and given to students who sign up. students decide whether they want to be in the prosecuting team or the defence team of lawyers. facts need not be based on a real life case, but are generally reflective of current societal realities. the trial is conducted using real laws, and a serving judge of the high court presides and delivers judgment at the end. while the emphasis in the moot court is primarily on developing trial advocacy skills, research 70 journal of clinical legal education july 2007 11 in may 2007, a series of workshops were held in abuja, nigeria for all lecturers of the nigerian law school, featuring notable trainers, professors david mcquoid mason and richard grimes. 12 this trend is facilitated by the completion of stateof-the-art internet facilities provided on each of the four campuses by the uk department for international development. skills are also sharpened as students prepare their respective cases. still, criminal procedure and civil procedure are only two out of six subjects taught at the law school. it is possible to extend the scope of the moot court scenario to incorporate issues that would serve to test skills learned from other courses. for example, a civil trial scenario could be drawn up around a company transaction in way that brings in elements of company law and legal drafting. an unauthorised property purchase on behalf of a company, for instance, will call into play documents such as the memorandum and articles of association of the company as well as relevant conveyancing documents. this then creates the opportunity for students to apply knowledge and skills gained from those courses. the legal skills video tapes screened during the practice week cover core skills of trial advocacy and alternative dispute resolution. tapes produced by the inns-of-court in england are used. these cover client counselling, cross-examination, address, and negotiation. a learn-by-watching approach is complemented by discussion during breaks in each video session. the video screening provides a very useful platform for tying down many of the principles learnt in class to a particular set of facts. with the tutoring given by the judge in the tapes, students begin to identify some strengths and weaknesses in the performance of lawyers. nevertheless, socio-cultural divergences, as well as differences pertaining to jurisdiction often show up when materials produced primarily for a specific jurisdiction are used in another. contextualisation of training tapes to the jurisdiction within which they are to be used will no doubt make the learning experience even more effective. court and law office attachment in this exercise, students choose the city, but not the court, in which to serve the attachment. timing is essential to this process. usually, court attachment is carried out in the middle of the legal year, when courts are in active session. in a dual session, as was the case in 2006 and again in 2007, the timing for the court attachment may not always fit into the peak court season. if an attachment period falls at the beginning or end of a court vacation, students’ opportunity to learn from court proceedings may be severely limited. where this is the case however, the lack of consistency in court sittings is usually made up for during the law office attachment period which presents a lengthier opportunity for court attendance. law office attachment is carried out in an assortment of law firms across the country. a list of accredited law offices is maintained for this purpose. the degree of exposure to legal practice experienced by students during the law office attachment depends significantly on the understanding and commitment of the principal lawyers in the firm to clinical training. with repeated hosting of interns over time, firms tend to create a definite programme of involvement for them. law office attachment supervision experience has shown that the versatility of the practice in a firm impacts on how much students are able to learn. further, the timing of the law office attachment exercise, usually just before the last term, which is also the examination term, engenders a contest between studying and practical learning. quite often, students opt out of court attendance and other activities to focus on studying for the impending bar examinations.13 this problem would be avoided if, for instance, the law office attachment exercise took place during a less-contested period, such as after the bar examinations but before the release of results. that way, students are more open to attending court for the purpose of learning. alternatively, the exercise constructing a clinical legal education approach for large multicultural classes: insights from the nigerian law school 71 13 anaekwe, op. cit. at 100-1 also mentions this challenge. can come up earlier in the session. supervision is key to the success of the externship, as this would ensure that host firms are active partners in meeting the clinical legal education goals of the process. further, the supervision exercise this presents a priceless opportunity for supervising staff to interact more closely with principals of host firms, most of whom are senior alumni of the nigerian law school. more is said on this in the section on developing an alumni funding base. law dinners the inculcation of professional values is a key goal of clinical legal education.14 the law dinner provides an opportunity for students to meet jurists whose textbooks, judgments and arguments they must have read in the ll.b programme. it is an occasion which students attend with great expectations, dressed in their best. this very fact makes this occasion a powerful tool in clinical legal education. relieved from the tedium of lectures and tutorials, and mellowed by the special cuisine, students listen to an after dinner speech presented by one of the visiting jurists. typically, such a speech would last for about ten minutes and takes varying forms such as an address on ethical conduct, an anecdote or a reflection on legal practice development. because students are delighted to be in the presence of jurists whom they revere, it is an occasion that could be better used to draw their attention to topical issues within a law-in-development context. clinical legal education is no doubt about securing students’ attention as much as it is about making good use of the attention when secured. the law dinner presents an excellent opportunity for directing students’ attention purposefully where it is most needed in a society in transition – to issues of social justice, promoting the rule of law, increasing access to justice, legislative advocacy and a contextualised use of law for development. the thrust of the after-dinner speech should be discussed and concluded with a confirmed dinner speaker early on. the two dinners per set of students can be co-ordinated to ensure that the address at the second dinner is not a repetition of the first. currently, the potential of the law dinner, as a tool of clinical legal education is largely unexplored. in many ways, it has become a formality, a mysterious rite of initiation into the legal profession, when it has the capacity to be a social justice catalyst and more. the limitations of certain co-curricula activities are shown in table 2 table 2: limitations of co-curricula activities activity limitation moot court few roles in simulation court and law office attachment observing not doing law dinner underutilised the next section describes some administrative steps that need to be taken to support the development of clinical forms of legal education. 72 journal of clinical legal education july 2007 14 p.a. joy, “law students in court: providing access to justice” in issues of democracy (electronic journal of the u.s. department of state, august 2004) at 19. administrative support framework clinical resources unit it is important that a specific unit is given the responsibility for co-ordinating training resources.15 this is even more important in institutions where a bureaucratic tradition is entrenched. the clinical resources unit proposed would be responsible for contributing to the development of clinical legal education methods, providing training and support, maintaining and managing audio visuals and other clinical legal education resources and materials. this point is clearly brought out in the report of the pioneering clinical legal education work of the network of university legal aid institutions (nulai) nigeria.16 alumni funding base any effort to address the challenges of training large classes of candidates for the bar requires a multiplied input of resources, not just once-off, but on an ongoing basis. government allocations for this are not only inadequate, but may not always be desirable, in the interests of maintaining the integrity of the process of training professionals who staff the judicial arm of government in a country in transition. alternative long-term sources of funding need to be developed. in this context, it is important to explore an income base that is successfully tapped in places with advanced educational traditions, namely, alumni giving. every institution of learning, over time, accumulates a large body of alumni. in this respect the law school occupies an advantageous position, in that virtually all lawyers who qualified to practice law in nigeria since the early 1970s are alumni of the institution. after graduating from the university with the ll.b, practically all law graduates proceed to the law school immediately, or at least queue up to enrol at the institution. thus, it would be safe to say that all lawyers in nigeria with about 35 years post-call qualification attended the same ‘finishing school’. stories of law school experiences are frequently exchanged in courtroom banter across the country, in lawyers’ meetings and bar conferences, as lawyers reminisce over the final stage of their legal training. strangely enough, the law school does not return this compliment of remembering its past students, although it could do so in many beneficial ways. for starters, a database of law school alumni could be created, using the last known contact address of each past student. this would then be updated on an ongoing basis from the records of the nigerian bar association (nba) secretariat which would usually have more current information on practising lawyers. secondly and not necessarily in that order, an alumni fund could be created and a strategy developed for planned alumni giving to the law school. some basic research on the donor attitudes of lawyers will be required, and in this regard, a survey can be carried out in conjunction with the nba. this survey could be conducted by law school staff when they go on supervision of students on law office attachment. developing an alumni funding base would take healthy advantage of the competitive tendencies that already exist among legal practitioners, while promoting ongoing interaction between practising lawyers, law teachers and constructing a clinical legal education approach for large multicultural classes: insights from the nigerian law school 73 15 anaekwe, op. cit. at 101, makes reference to the absence of teaching aids and the lack of resources to acquire them. 16 see e. ojukwu, “developments towards introducing clinical legal education in nigeria” in network of university legal aid institutions (nulai) nigeria 2004-2006 activities report. (abuja: nulai nigeria, 2007) p.7. students. useful attention has been drawn to “the rich traditions of giving in multicultural contexts in different parts of the world.”17 constructing a multi-skill clinical legal education approach clinical legal education is about learning how to practice law, in the twin sense of learning lawyering skills and professional values, while attending to clients’ legal needs.18 as such, it should prepare law students for as many different facets of practice as possible. one of these facets is practice that is conducted through the nonprofit organization, whether the character of the practice is described as public interest law, activism, ngo advocacy and so on. alongside career options in conventional legal practice, government and business, the position of the nonprofit sector as an employer of lawyers is increasing.19 often there are partnerships between nonprofit sector lawyers, government lawyers and lawyers in private practice, usually on issues of social justice.20 to accommodate these forms of legal practice which meet a critical need in transition countries like nigeria, a reconfiguration of current legal training methods is proposed. the aim is to create room for greater student involvement in training processes in a way that gives them the opportunity of learning new skills. for example, a moot court competition is essentially designed to teach students trial advocacy skills. in this court room simulation exercise, students are involved primarily as counsel, witnesses and court clerks. it is possible, however, to optimise this exercise by getting students involved in the conceptualisation, design, planning and execution of the moot court exercise. this exercise would be part simulation and part real life. thus, instead of being limited to participation in courtroom simulation, students would be required to execute a moot court project. the project proposed will involve, at least six distinct activities. first is the establishing of a nonprofit legal aid entity or law service known, for purposes of this illustration, as the clinical law league (the league). secondly, a litigation fund through which the activities of the league will be funded would have to be set up. next, a client’s interview and counselling session in respect of a particular case referred to the league is conducted. at the fourth stage, case analysis and legal opinions are prepared, then comes the trial, and finally, the reporting. the six stages are discussed briefly. establishing a nonprofit at this stage, participants in this section would have to do the necessary solicitor-client consultation, assemble the relevant information and prepare documents for the registration of a nonprofit association under the relevant section of the law.21 in this exercise, students apply interviewing, advising, research and drafting skills. this is perhaps the other side of the coin to 74 journal of clinical legal education july 2007 17 d. everatt et al, “patterns of giving in south africa” in voluntas: international journal of voluntary and nonprofit organizations vol.16, no.3, september 2005, p. 275 at 277. 18 joy, loc. cit. 19 the ll.b programme brochure of the university of cape town mentions the demand for law graduates in organisations such as legal resources centre, lawyers for human rights and women’s legal centre. see online version ‘practising law in south africa’ at www.law.uct.ac.za. 20 see for instance, the profile of the human rights law service (hurilaws) nigeria www.hurilaws.org as well as the constitutional rights project (crp) www.crpnigeria.org. 21 in nigeria, this is done under the companies and allied matters act 1990, part c. joy’s suggestion of externships in nongovernmental organisations and government funded programs in countries where this would be a more feasible option than in-house clinics.22 however, this is not only about gaining legal practice experience through an ngo, but about doing the legal work necessary to set up an ngo. at this stage, the clients are the law students who want to set up a public interest law service. public interest advocacy this will involve both oral and written (non-trial) advocacy articulating the mission of the league and the ways in which this mission will be pursued, including the place of litigation in the achievement of the goals of the league. this will also require the writing of a proposal, motivating contribution and support for the fund from prospective donors and supporters. the proposal will include a budget for the different services involved in case management, including a determination and description of a billing system. this way, law students have an opportunity to reactivate their quantitative aptitude, which is often laid down at the door of legal studies, but which becomes an imperative at the onset of practice. moreover, it is important to keep track of the actual or potential economic value of services that are rendered through clinical law practice to demonstrate its usefulness. since this phase of the project has oral and written components, it creates the opportunity for students to develop skills in proposal writing, budgeting, billing, public interest advocacy and fund raising. the importance of these “extended lawyering skills” in developing jurisdictions is reinforced by the pioneering experience of nigeria’s clinical legal educators, who recommend that “faculty members of clinical programmes should be trained in fund raising and grant management skills.”23 client interview and counselling at this stage, the league is faced with a specific case, which has been brought directly to it by a client or referred from another source. little imagination is required to generate a suitable scenario. life in developing societies is characterised by daily tales of injustice at the personal, communal, institutional and other levels. here, students apply the skills necessary for drawing out the facts of a matter from a client. these include the skills of active listening, effective questioning and appropriate counselling.24 case analysis and legal opinion the facts of the case may or may not be designed to make it eligible for support from the fund. students will also need to exercise research skills and skills of case analysis and consultation, after which a legal opinion is prepared and communicated to the relevant quarters, perhaps the litigation committee of the league or the referring agency as the case may be. students’ ability to analyse a case, determine what aspects of law are involved, advise on what primary course of action should be taken and articulate these in a written legal opinion will be tested and further developed at this stage. constructing a clinical legal education approach for large multicultural classes: insights from the nigerian law school 75 22 joy, op. cit. at 22. 23 ojukwu, op. cit. at 8. 24 these communication skills are described in detail in p. lisnek, lawyer’s handbook for interview and counselling (st. paul, minn.: west publishing co., 1991), chapter 3. the trial this presents the conventional setting for the demonstration of advocacy skills backed by research skills. these include the ability to conduct effective examination-in-chief, cross-examination, re-examination, present an address and so on. this is a traditional focus of clinical legal education, and does not require much description at this point. reporting at the end of the trial, students are expected to write a report for several purposes, including briefing the instructing body such as the litigation committee. the report will also be published in the annual report of the league which should be made available to donors to the litigation fund. the client should also receive a suitable variant of this report. it would also be appropriate at this stage to prepare a final bill or case account, which may be incorporated as part of the report or presented separately. strategy the project-type approach proposed may be done by the law faculties or at the law school, or both. the project will be phased over the session, to be completed before the examination term commences. a different group of students will be involved at each stage in a relay-type progression, which should, as much as possible, accommodate students’ preferences. it is important for students to begin early on to identify their preferred tasks in the legal practice continuum and develop them, as this contributes to their effectiveness in making suitable career choices in the future.25 a number of distinct projects can run concurrently to ensure that all students participate. assessment is done as the project unfolds, and scores are recorded either as part of sessional results or for purposes of recognition and award of prizes or both. however, since the focus is not merely on the end result, but on the learning that takes place in the process, assessment should be designed accordingly. as chavkin points out, “instead of looking at whether you won or lost, we will be looking at the process you used to assist your clients.”26 the early stages of establishing a nonprofit organisation, setting up a litigation fund and engaging in public interest advocacy jointly create a social justice ideological framework or point of reference for the client counselling and moot court proceedings that follow.27 with the unfolding of a consistent story line, the project may take on the appearance of a legal soap opera, albeit with timelines. while this may have its appeal for securing lively participation from students, the phased system also lends itself to termination at the end of any phase if necessary. a new set of facts altogether could then be introduced if desired. the variations that may be made to the project approach seem almost limitless. the co-ordinators of clinical programs will work out which aspects of the project can accommodate real life activity and which to simulate. the fact that clinical legal education methods need not be boxed into a specific mould is captured by the observation that “some form of clinical legal education is possible in every country wishing to involve law students in providing access to justice.”28 76 journal of clinical legal education july 2007 25 chavkin, op. cit. at 155-64, discusses this allimportant subject as ‘developing a theory of ourselves’. 26 ibid. at 20. 27 a tabular representation of the multi-skill project proposed here is shown below. 28 joy, op. cit. at 22. table 3: phased multi-skill project proposal activity key skills character team registering a noninterviewing (the client) first time real, subsequently a profit law service research and drafting simulated public interest proposal writing, nonreal and simulated b advocacy trial advocacy client interview interviewing and real or simulated c counselling case analysis research, analytical, real or simulated d writing mock trial trial advocacy simulated e conclusion with the relative stabilisation of civilian governance in nigeria and the accompanying economic and legal reforms, an enlarged marketplace for lawyers has grown, making it necessary to expand the complement of skills developed through legal education. in the context of a developing society like nigeria, this may require a reconstruction of clinical legal education to create the settings necessary for growing these skills. the demand for legal training, which has always been disproportionately high, is increasing, placing immense pressure on the legal education system, made up of the faculties of law and the nigerian law school, a phenomenon that has been described as no less than a ‘national problem’.29 the time spent at the nigerian law school is short, fragmented and fully apportioned. consequently, the continuity required for running conventional law clinics may not be easily accommodated in the regular law school calendar. the prospects seem more promising in the law faculties, where students spend five years in the ll.b programme.30 yet the law school is the only stage of legal training which presents a uniform opportunity for the reinforcement of the clinical legal education ethos to prospective legal practitioners. the key need at the law school stage of legal training is to advance a clinical legal education that ties together the threads of experience garnered by students through the law clinics and other forms of legal training administered by various law faculties. although current teaching methods are designed to secure a practical component to the law school programme, these methods can be restructured to offer more than they are currently able to. for example, it would be more effective to contextualise legal skills training resources, like video tapes, to local jurisdictions, using local characters and settings. court and law office attachment could be more constructively supervised and the supervision exercise itself can be optimised to promote useful interaction between law school teachers and practising alumni. the development of an alumni funding system presents itself as a sustainable supplement and constructing a clinical legal education approach for large multicultural classes: insights from the nigerian law school 77 29 i.a. ayua, “the objectives of legal education in nigeria” in i.a. ayua and d.a guobadia (eds.) op. cit. at 43. 30 see reports of pilot law clinics in network of university legal aid institutions (nulai) nigeria 2004-2006 activities report, pp.36-52. alternative to government funding. the law dinner component constitutes an excellent platform for motivating and conscientising prospective lawyers on professional values, including the social justice role of their profession of choice. moot court events can be made more comprehensive and inclusive of other law school courses. a project-type, as distinct from case-type approach may be used to create a more expansive field for the learning and application of a variety of lawyering skills. with regard to the key challenge of extra-large class sizes, a multiphase project approach complements a class grouping strategy for more effective inclusion and management of students. these observations are not intended to be exhaustive, but indicative of ways in which the law school can become better positioned to offer ‘finishing school’ training, not in a superficial sense, but in the sense of anchoring the clinical legal education received in the law faculties to a social justice rubric. 78 journal of clinical legal education july 2007 321 empowering the underprivileged: the social justice mission for clinical legal education in india shuvro prosun sarker* i. introduction the 1960s and 1970s were an important time in the history of legal education in india, when the legal aid movement and various legal aid committees’ reports started to draw attention to the importance of experiential learning, or learning on the job, in legal education� the main aim of involving law students in the national legal aid movement was to make them feel more responsible for the considerable part of the indian population who, because of their socio-economic status, couldn’t access justice� the history of how india’s clinical programs were introduced has a lot in common with the history of clinical programs in other parts of the world� there was a desire to create a pool of lawyers, who would serve as soldiers in the fight for social justice for underprivileged groups in the country� while some prestigious universities started their clinical programs in the 1970s, most of the regulators of legal education took a long time to include clinical papers in the curriculum� in 1997 the bar council of india introduced four practical papers in the curriculum� the spirit of public service, and the widespread poverty in a country, has always been central to the push for clinical programs everywhere� but in india, the legal aid committees’ and other statutory bodies’ reports calling for clinical programs to support social justice, were always ignored� the national knowledge commission’s working group on legal education specifically mentioned the need to * this article is based on the author’s ll�m dissertation submitted to the west bengal national university of juridical sciences, india in 2012� author is thankful to prof� manoj kumar sinha, prof� jane schukoske, prof� m� r� k� prasad, prof� ajay pandey and prof� anirban chakraborty for their guidance, and the anonymous reviewers of ijcle for their comments on the earlier draft� author is indebted to his friend, ms lois kapila, for copy editing� 322 international journal of clinical legal education issue 19 introduce students to issues relating to poverty, social change and social exclusion, through clinical legal education�1 after the introductory section, the second section discusses the introduction of clinical programs with their roots in the search for social justice in the united states and india� the third section discusses the continuous deliberation by various bodies, commissions and committees about the need to introduce clinical programs with a social justice perspective in india� the fourth section discusses the social justice-based clinical programs in china and south africa� this section tries to highlight some of the clinical models focused on serving underprivileged groups, that have been introduced and implemented in these two countries and which ~ after local modifications ~ could serve as a template for programs in indian law schools� the fifth section tries to search for clinical models best suited to india with reference to clinical programs in china and south africa� several examples of clinical activities in a few indian law schools have been highlighted in this chapter to explain these models’ effectiveness and suitability for indian circumstances� the sixth section sets out some suggestions for law schools and stakeholders of legal education in india as to how to further the country’s social justice mission of clinical legal education� ii. justice mission of clinical legal education and india a. introduction “what do generations signify? growth in self reflection and wisdom and capacity to serve the underprivileged.” prof� upendra baxi 2 in an interview about legal education reform, prof� upendra baxi expressed his concern that there is no new generation of lawyers coming up in india who will work to help the underprivileged access justice� the reason behind this fear might be the failure of the law school curriculum to put the values of public service and social justice at the centre of young law student’s education, instead encouraging the growth of a corporate culture�3 there should be a teaching method within the law school framework that will inculcate a spirit of public service, and help young law ‘students to confront the uncertainties and challenges of problem solving for clients in fora that often challenge precepts regarding the rule of law and justice’.4 clinical legal education aims at exactly this sort of teaching method and spirit of public service� prof� n� r� madhava menon refers to ‘clinical legal education as a pedagogic technique is its focus on the learner and the process of learning’5 not to create future lawyers who are ‘mere craftsman manipulating 1 national knowledge commission, report of the working group on legal education, ¶ 3�3�2 (2007), available at http://www�knowledgecommission�gov�in/downloads/documents/wg_legal�pdf (last visited on jun� 04, 2013)� 2 interview with mylaw�net, youtube, http://www�youtube�com/watch?v=0y2at-rk6-e (last visited on jun� 04, 2013)� 3 id. 4 margaret martin barry et al�, clinical education for this millennium: the third wave, 7 clinical l� rev� 1, 38 (2000)� 5 n� r� madhava menon, foreword, in a handbook on clinical legal education (n� r� madhava menon ed�, 1998)� 323 advocacy skills in the traditional role of conflict resolution in court’�6 avrom sheer emphasizes that understanding, imagination and the ethics of justice are central to clinical legal education�7 accordingly, clinical legal education plays an important role in making access to justice a reality for many low-income people� it does so not only by exposing law students to the legal problems that the poor face but also by allowing students to experience an obligation to find substantive and creative ways to respond to unmet legal needs�8 this chapter analyzes the social justice orientation of clinical legal education in the united states of america and how the legal realism movement influenced the social justice mission� it concludes with its impact on the indian clinical legal education� b. the ‘social justice’ 9 orientation in the u.s. advocates of clinical legal education lacked any specific, detailed vision during the first fifty years of its existence in the u�s�10 they campaigned for skills training of the students and providing access to justice for the underprivileged and were supported by the legal realism movement�11 the neo-realists’ idea of developing future lawyers as policy-makers led to the addition of new courses like professional ethics into the law school curriculum�12 but the movement for social relevance in the law school curriculum in the unites states of america in the 1960s developed clinical legal education’s primary objective ‘to use law as an instrument for social justice and change’� 13 the idea was to represent indigent clients as there is a different market of legal professionals to represent paying clients� clinical legal education, therefore, should be strictly focused on social justice concerns, which would not only be helpful for indigent clients but also for students given exposure to real world incidents�14 this movement of social justice education is considered a return to the roots of clinical legal education�15 thus ‘clinics play a critical role, both in terms of educating students to their professional 6 n� r� madhava menon, clinical legal education: concept and concerns, in id� 7 avrom sherr, clinical legal education at warwick and the skills movement: was clinic a creature of its time? in frontiers of legal scholarship 108, 119 (geoffrey wilson ed�, 1995)� 8 margaret martin barry, supra note 4, at 15� 9 justice has no absolute meaning because it, too, like all knowledge, is grounded in context� at a minimum, however, those of us who dedicate ourselves to social justice must ask ourselves if our proposed action as a lawyer will support and increase human dignity� see jane h� aiken, provocateurs for justice, 7 clinical l� rev� 287, 296 (2000-2001) (i believe that teaching law students to be socially conscious practitioners is at the heart of clinical education and should be at the heart of a good legal education� equal access to justice cannot be achieved if legal services are not made available to the poor and subordinated and if the barriers they face are not challenged� for many schools, community service and social justice are very much an aspect of the mission of clinical legal education); see antoinette sedillo lopez, learning through service in a clinical setting: the effect of specialization on social justice and skills training, 7 clinical l� rev� 307, 310 (2000-2001)� 10 margaret martin barry supra note 4, at 9� 11 margaret martin barry supra note 4, at 12� 12 harold d� lasswell and myres s� mcdougal, legal education and public policy: professional training in the public interest, 52 yale l� j� 203, 206 (1942-1943)� 13 margaret martin barry supra note 4, at 13� 14 martin guggenheim, fee generating clinics: can we bear the costs?, 1 clinical l� rev� 677,679 (1994-1995)� 15 see generally nina tarr, current issues in clinical legal education, 37 how� l� j� 31 (1993); see generally jane harris aiken, striving to teach “justice, fairness and morality”, 4 clinical l� rev� 1 (1997)� empowering the underprivileged: the social justice mission for clinical legal education in india 324 international journal of clinical legal education issue 19 obligations and sensitizing them to the needs of people’�16 therefore, the goal of social justice education is to ensure equal participation for all visualizing the equitable distribution of wealth�17 clinical legal education promotes social justice in three ways18� firstly, it promotes access to justice for the underprivileged by representing them in various forums� secondly, it introduces law students to ideas of public service responsibility or pro-bono work� finally, it creates an understanding of the relationship between law and social justice among the law students� all three ways have some effect on the law student’s education about social justice values, because the unusual experience gained is different from, and complements, the student’s prior understanding of law and legal procedure�19 the 1992 report of the committee on the future of in-house clinics of the american association of law schools urges clinicians to assist the students in pro-bono works�20 the benefits of instructions on social justice responsibility of legal profession by involving students to legal aid activities will help them to self identify themselves�21 c. legal aid and social justice orientation for clinical legal education in india teaching students that they are responsible for their actions and society has always been at the heart of clinical legal education�22 in india, recognition of the difficulties that the majority of the population faced when they tried to access justice through legal institutions kick started the free legal aid movement� the ministry of law and justice formed three committees in the 1970s to come up with solutions to help deal with the struggle that many faced trying to access justice� all three committees recommended involving law schools in the country’s legal aid mission, but clinical work was only introduced in the curriculum later� in 1973, the expert committee on legal aid23 proposed involving law teachers and students in legal aid programmes� they characterized legal aid services as ‘every step or action by which legal institutions are sensitised to respond to the socio-economic realities’ of india�24 the expert committee’s ‘idea of linking legal aid and law schools had a practical element; given the extent of the need for legal services for the poor and the limited resources available, this made perfect sense’.25 the juridicare committee on legal aid26 submitted its report in 1977 echoing the ideas of the 16 martin guggenheim, supra note 14, at 683; see also jane h� aiken, provocateurs for justice, 7 clinical l� rev� 287, 296 (2000-2001)� 17 jane h� aiken, id� 18 see jon c� dubin, clinical design for social justice imperatives, 51 s�m�u� l� rev� 1461,1475-76 (1997-1998)� 19 id�, at 1478� 20 report of the committee on the future of the in-house clinic, 42 j� legal educ� 508,515 (1992)� 21 frank s� bloch and iqbal s� ishar, legal aid, public service and clinical legal education: future directions from india and the united states, 12 mich� j� int’l l� 92, 108 (1990-1991)� 22 redlich, the moral value of clinical legal education: a reply, 33 j� legal educ� 613,616 (1983)� 23 see generally govt� of india, ministry of law, justice and company affairs, processual justice to the people: report of the expert committee on legal aid (1973)� (on file with the author)� 24 id. at 180� 25 frank s� bloch and m� r� k� prasad, institutionalizing a social justice mission for clinical legal education: crossnational currents from india and the united states, 13 clinical l� rev� 165,169 (2006-2007)� 26 see generally generally govt� of india, ministry of law, justice and company affairs, equal justice-social justice: report of the juridicare committee (1977)� 325 previous expert committee and formulated more focused recommendations relating to legal aid schemes� these were more focused on reaching the most helpless members of society and identifying the broadest possible types of assistance that could be made available to them under the law, including education, community development and community organizing�27 along the same lines, in 1981, the committee for implementing legal aid schemes insisted that court-oriented legal aid programs alone cannot provide social justice in india� the committee concentrated more on the promotion of legal literacy, the organization of legal aid camps to carry legal services to people’s doorsteps, training paralegals to support legal aid programs, establishing legal aid clinics in law schools and universities, and bringing class actions through public interest litigations�28 d. conclusion an important part of the clinical methodology is its emphasis on experimental learning and other interactive teaching techniques that give students a sense of participating in the process as adults and draw them into the role of a lawyer�29 thus legal educators in india had a responsibility to improve the quality of legal education through the legal services clinical method of law teaching, which will help to encourage a sense of justice, equity and public service responsibility among young law students� they have failed to do so� iii. clinical legal education in india a. introduction the idea of involving law schools in legal aid can be seen as the first attempt to introduce some kind of clinical legal education framework in india� the legal aid movement of the 1960s in india ‘assumed that law schools would have a significant role in dispensing legal services’�30 this idea has been reflected in various reports relating to legal aid and judicial reform dating back to the 1970s� reform was considered necessary to foster the country’s nascent democracy and help achieve the goals of good governance, expressed in the constitution of india, by developing competent legal minds�31 in india, after long deliberations, the bar council of india introduced four clinical papers in 1997� the papers introduced are far from comprehensive and do not place much emphasis on the need for young lawyers to struggle for social justice, one of the original aims of clinical legal education� this chapter examines the legal aid orientation of clinical legal education in india and various other reports on legal education reform� it concludes with the need to use law school clinics to further the cause of social justice in india� 27 id., at 52-65� 28 frank s� bloch, supra note 25, at 175� 29 see frank s� bloch, the andragogical basis of clinical legal education, 35 vand� l� rev� 321, 322-23 (1982); see generally bradway, some distinctive features of a legal aid clinic course, 1 u� chi� l� rev� 469, 469-73 (1934); gorman, clinical legal education: a prospectus, 44 s� cal� l� rev� 537, 551-55 (1971); meltsner & schrag, report from a clepr colony, 76 colum� l� rev� 581, 584-87 (1976)� 30 frank s� bloch, supra note 21, at 96 31 see generally a�s� anand, legal education in india past, present and future, 3 s�c�c� (jour�) 1 (1998) (india)� empowering the underprivileged: the social justice mission for clinical legal education in india 326 international journal of clinical legal education issue 19 b. the bay of good hope in 1994, a three-member committee made up of justice a� m� ahmadi, justice b�n� kirpal and justice m� jaganaddha rao dealt in detail with law school teaching methods�32 the committee made important suggestions relating to pedagogy and the more practical side of legal education� the committee’s suggestions marked the starting point for the introduction of a clinical teaching curriculum into the modern indian legal education system� it was after this committee’s report that the bar council of india introduced four practical papers into the curriculum, which was viewed at the time as a ‘big step toward introducing clinical legal education formally into the curriculum and law schools have been required to introduce the four papers since academic year 1998-99’.33 these papers concentrated on specific issues of legal skill training: paper i addresses instruction in litigation skills, including pre-trial preparation and trial practice; paper ii focuses on legal drafting skills and pleading; paper iii covers professional ethics and bar-bench relations; and paper iv introduces legal aid work and public interest litigations� however, most legal educators see the papers as providing only limited support for including instruction in social justice lawyering in the new curriculum or for providing social justice to indigent clients�34 finally, the bar council of india’s mandatory directive to introduce the four practical papers into the curriculum was welcomed only half-heartedly by law school authorities as their staff lacked the skills and experience necessary to teach the course properly or ‘simply put, law faculty neither had a vision for, nor properly understood, the value of these papers.’ 35 nevertheless, the law commission report of 2002 emphasized further the professional skills and values future lawyers need to develop at law school�36 though their central focus on the mac-crate report 37 to be introduced into the curriculum safely by modifying it as per the india circumstances, but some of the legal educators find it unacceptable to start teaching of skills training into the law schools as india need more on to concentrate into the social justice movement elaborated by the legal aid committees in 1970s�38 the bar council of india adopted a resolution, based on the recommendations of the supreme court’s three member committee, to set up legal aid clinics in every law school to provide inexpensive and speedy service to underprivileged groups in society�39 this was a mandatory 32 frank s� bloch, supra note 25, at 179; see also bar council of india, 3 member committee report on reform of legal education (2009), available at http://www�barcouncilofindia�org/wp-content/uploads/2010/06/3-membercommittee-report-on-legal-education�pdf (last visited on jun� 04, 2013)� 33 bar council of india resolution no 04/1997; see also frank s� bloch, supra note 57, at 180� 34 frank s� bloch, supra note 25, at 180� 35 id. 36 the law commission of india, 184th report on the legal education and professional training and proposal for amendments to the advocates act, 1961 and the university grants commission act, 1956 (2002), available at http:// lawcommissionofindia�nic�in/ (last visited on jun� 04, 2013)� 37 american bar association, 1992 38 see frank s� bloch, supra note 25, at 187-195� 39 see 3 member committee report, supra note 32, at 4� 327 requirement, reflected in the bar council of india’s inspection manual 2010�40 it serves as a starting point for a formal system, giving law schools a very good opportunity to build their legal aid programs in line with the requirements of the local community� it affirmed the need for a multi-client-based legal aid program for every community�41 the vision statement of the then law minister on legal education reform played an important role in encouraging the bar council of india to take this initiative�42 another important authority which bears responsibility for regulating legal aid services nationally, the national legal services authority (nalsa), has come up with an important set of rules in line with the bar council of india’s mandatory clinic resolution in 2011� nalsa issued the national legal services (legal aid clinics) regulation on 10th august, 2011�43 this regulation in reality serves as the implementation mechanism for legal aid clinics in cooperation with the local authorities� another planning commission sub-committee, which focused on how to get higher learning institutions involved in community development, came up with effective recommendations for planning and funding�44 the sub-committee came up with several ways to boost academic institutions’ community engagement through networking, funding and policy change� first, it proposed an alliance for community engagement, an active membership-based network to promote ideas and practices of community engagement throughout india, and a funding and policy committee, the autonomous empowered committee on community engagement, to review funding proposals, design schemes to encourage community engagement, and set policy at the level of planning commission and university grants commission� next, it recommended that higher education institutions be given more curricular flexibility in offering programs, courses and initiatives that are more relevant to the needs of society, and that due recognition for public intellectual engagement be given to faculty, students and institutions� lastly, it recommended that a few educational institutions are 40 bar council of india, inspection manual 2010: guideline for inspection of bar council of india of university/ institution, available at http://www�barcouncilofindia�org/about/legal-education/inspection-manual-2010 (last visited on jun� 04, 2013)� 41 bar council of india, inspection manual 2010: guideline for inspection of bar council of india of university/ institution 36, available at http://www�barcouncilofindia�org/wp-content/uploads/2010/06/inspection-manual�pdf� (g. legal aid clinic 24. legal aid clinic: each institution shall have at least one community-based legal aid clinic which shall function under a faculty, preferably who is or was practicing law. 25. link up with district legal aid center: each district has a legal aid program under the chairman of the district judge. guidance would be required to establish links with the program and also with lok adalat organized under the scheme. inspection has to be used as a means of participatory development especially of those institutions away from professional facilities so that professional skills can develop at every level.) 42 the bar council of india, the law minister announces vision for legal educational reform, see http://www� barcouncilofindia�org/law-ministers-vision-statement-for-second-generation-reforms-in-legal-education/ (last visited on jun� 04, 2013)� 43 national legal services authority, national legal services authority (legal aid clinics) regulations 2011, available at http://nalsa�gov�in/schemes�html (last visited on jun� 04, 2013)� 44 rajesh tandon, re-affirming civil engagement of education (2011), see blog at http://priaeducation�org/ rajeshtandon-blog/� empowering the underprivileged: the social justice mission for clinical legal education in india 328 international journal of clinical legal education issue 19 set up to focus on community-based and common knowledge traditions�45 c. conclusion the regulatory authorities overseeing legal education, and other administrative bodies, have taken many initiatives to increase access to justice for the underprivileged� but bureaucratic hassles, and the indifference of almost all of the 950 legal institutions in india, have prevented these initiatives from being properly implemented� the report of the law school based legal aid clinics, 2011 has very effectively pointed to all of the reasons why the legal aid programs at law school clinics have not been running well�46 the next chapter looks at clinical legal education programs focused on community development in other countries around the world, as a way of finding a model useful in india� iv. the ‘global clinical movement’47 a. introduction by the 1970s and early 1980s, clinical legal education had taken root in a number of countries around the world, focused on local problems and on the need to reform legal education to include ideas of social justice� by looking at local developments in various countries, clinicians elsewhere have developed a clear understanding about each other’s work in equally challenging circumstances� within a region, many countries share social, economic, and cultural characteristics and the obstacles preventing accessing to justice for the underprivileged are often the same� clinical educators must look to learn from the experiences of others in similar situations when developing their own models of clinical teaching� this chapter discusses some of these models in china and south africa� china had developed a system or clinical law teaching by the 1990s� however, weak rule of law in the country because of the supremacy of the communist party’s word meant the judiciary has only a small role to play in securing justice for the majority of the population� despite this difficulty, chinese clinical educators are trying to deal with the situation by using clinical techniques to serve the population at large� how they are doing this is instructive� south african clinical legal education is very community-oriented and the history of south africa has much in common with india’s� in south africa, clinical legal education was born about the same time as in india� india is one of the largest democracies in the world with a diverse mix of communities with different languages and cultures� finding a way to help all of these people, and to make sure they can lead a life with liberty and equality is a very difficult task in india� the south african community clinical movement could be a good model for india to use to develop community clinical programs to ensure social justice� 45 id. 46 report of the law school based legal aid clinic (2011), available at http://www�undp�org/content/dam/india/ docs/a_study_of_law_school_based_legal_services_clinics�pdf (last visited on jun� 04, 2013)� 47 prof� frank s� bloch and prof� n� r� madhave menon are the key writers and thinkers behind the ‘global clinical movement’� in late 1990s, the global alliance for justice education (gaje) has been formed by their preliminary initiative� prof� bloch has also edited a book titled ‘global clinical movement: educating lawyers for social justice’ published by the oxford university press in 2010� 329 b. let a hundred flowers bloom48: the chinese model the present legal education system in china has followed a long, tortuous path on the way to becoming a professional legal education system�49 the present day legal education aims to ‘resolve all complicated disputes and safeguard justice in order to meet the needs of social, economic, political, and cultural development in china’� 50 there are four factors which hinder efforts to develop strong rule of law in china: an unprofessional judiciary with corruption and political interference; poorly trained lawyers with no commitment to pro bono work; poor quality of instruction in law schools; and a lack of participation from the civil society�51 the system has been in need of improvement� to a certain extent, the introduction of the clinical legal education program in china resulted from a strong demand for higher legal education reform, and especially for exploring new legal teaching methods�52 seven law school clinics were established in 2000, funded by the ford foundation and some u�s� law schools�53 the establishment of the committee of chinese clinical legal educators (cccle) in 2002 was a major step towards expanding clinical legal education in china� the mission of cccle is ‘to bring all clinical legal educators, administrators and others together to perform theoretical and practical research of foreign and chinese clinical legal education programs, cooperate and carry out exchange of clinical legal education activities with counterparts abroad and at home, and promote the growth of clinical legal education in china’.54 by 2009, cccle had 115 institutional members and 76 out of 115 had formally introduced clinical programs into their curricula�55 the cccle network, along with the clinical faculties at different law schools, has brought significant changes to chinese clinical legal education and there is a lot to learn from how the group has managed to do this in challenging circumstances� northwest university of politics and law’s legislation clinic is the most innovative of all the clinics in chinese universities�56 members of the legislation clinic work with local governmental agencies and civic groups to analyze local problems and then propose legislative solutions to help disadvantaged social groups, such as the elderly or migrant workers� teams of students gather information from a variety of public and individual sources and bring this knowledge into the policy-making process� one of their projects resulted in provincial-level legislation against 48 cai yanmin and j� l� pottenger, jr, the “chinese characteristics” of clinical legal education, in global clinical movement 87, 93 (frank s� bloch ed�, 2010)� 49 see wang weiguo, a brief introduction to the legal education in china, presented at the conference of legal educators, association of american law schools, (may 24-24, 2000) 50 mao ling, clinical legal education and the reform of the higher legal education system in china, 30 fordham int’l l� j� 421,425 (2006-2007)� 51 brian k� landsber, promoting social justice values and reflective legal practice in chinese law schools, 24 pac� mcgeorge global� bus� & dev� l� j� 107,108 (2011)� 52 mao ling, supra note 50, at 432� 53 peking university, tsinghua university, renmin university of china, wuhan university, zhongnan university of economics and law, east china university of political science and law, and fudan university� see mao ling, supra note 81, at 433� 54 id. 55 cai yanmin, supra note 48 56 id., at 94� empowering the underprivileged: the social justice mission for clinical legal education in india 330 international journal of clinical legal education issue 19 domestic violence, another enhanced wage protection for rural migrant workers� others yielded local legislation designed to benefit the urban elderly� hundreds of students took part in these projects, as did a wide array of faculty members, lawyers and judges� the legislation clinic has several elements to it, and it fulfills all the requirements of clinical legal education and helps to further social justice� it is also a model for countries where clinical legal education is short of funding� the legislation clinic is a place where students from diverse backgrounds develop a more mature attitude towards law and their responsibility to society, at very little cost�57 clinical legal education in china has made great strides in a single decade, growing from only one or two ngo-style clinics at leading universities to more than hundred programs integrated into the curricula at law schools and departments throughout the country�58 in the process, distinctive adaptations have emerged to address china’s access to justice issues at a level beyond the individual case� c. education and community service: south african clinical network over the past three decades south african university law clinics ‘have evolved from being ad-hoc student initiatives with limited capacity into mature institutions with a definite presence on the south african legal landscape.’59 law clinics were introduced at south african universities in the early 1970s� after the ford foundation conference on legal aid at university of natal in 1973, the speed at which they were set up increased�60 the earlier clinics have faced various obstacles like a lack of educational values which should be present in clinical programs, a lack of resources, voluntary student participation with no rule of credit, and lack of faculty involvement� but these early efforts highlighted that the aim of south african clinics was to promote equal justice and social justice for the poor people in the country� since the first democratic elections in 1994, law clinics have expanded rapidly with a view ‘to make the law school experience more educational and relevant for students and to promote equal justice and the rule of law, scholars have devoted considerable attention and resources to creating or expanding clinical legal education.’ 61 clinical programs in south africa are more community-based than individual client clinics and the ‘basic guiding principle remains firmly entrenched in the fundamental role that education must play in developing a culture of democracy and respect for human rights as an integral part of the common values and universal heritage of humanity.’ 62 57 adopting and adapting: clinical legal education and access to justice in china, 120 harv� l� rev� 2134, 2152 (2007)� 58 id� at 2155� 59 willem de klerk, university law clinics in south africa, 122 s� african l�j� 929,929 (2005)� 60 id�, at 930; see also peggy maisel, expanding and sustaining clinical legal education in developing countries: what we can learn from south africa, 30 fordham int’l l�j� 374,381 (2006-2007)� 61 peggy maisel, id., at 374; see also kenneth s� broun, black lawyers, white courts: the soul of south african law 235-243 (2000)� 62 philip f� iya, legal education for democracy and human rights in the new south africa with lessons from the american legal aid movement,12 j� prof� legal educ� 211,211 (1994)� 331 the clinical programs try to achieve five different objectives63: the inclusion of poverty and development issues into the curriculum to reflect the realities of the economically disadvantaged citizens to all the students, white or black64; to promote the values to provide equal justice to the disadvantaged; to confront ethical issues by dealing with real cases and to gain basic lawyering skills; to increase access to the legal profession among disadvantaged people; to expand the resources for legal representation for the disadvantaged� in 1987, the association of university legal aid institutions (aulai) was set up, a major step in the clinical legal education movement in south africa� this organization has played a very important role in improving the performance and resources of university-based legal aid clinics� south african law clinics have two different working techniques� first is the palm tree justice65 when paralegals in rural areas, who can speak the local community language, work for poor people who can’t afford a lawyer or where there is no lawyer� up to the year 2000, south africa had only 1,000 black lawyers who would represent the 70 percent black population of the country�66 these community-based paralegals have provided often the only access to justice for poor people in rural areas� secondly, prof� david mcquoid-mason set up south african street law programs, another type of clinical program which introduced students to the idea of preventive legal education practice� street law students learned how to teach lay people about legal rights and responsibilities, and then went to high schools and jails to teach ordinary citizens about their rights in criminal, juvenile, consumer, housing, welfare law, and human rights matters� the teaching methods which the students used included holding mock trials and other interactive learning experiences� they also wrote and distributed pamphlets dealing with common legal problems such as arrest, and housing and credit issues�67 in 2000, a survey of the twenty-one university-based law clinics in south africa was conducted to assess the state of clinical legal education there�68 the survey pointed out four kinds of obstacles to the current development of clinical programs in south africa: a lack of funding; a lack of acceptance of clinical legal education by the faculty members; a lack of skilled clinical teaching; and huge case load� these four problems are similar to those in other developing countries� but some prominent clinical legal educators in south africa have tried and are still trying to overcome these problems in clinical legal education� the formation of aulai and the aulai trust have gone some way to solving problems of funding and training opportunities for clinical teachers with the help of national and international funding agencies and universities from the west� the ford foundation, the international commission of jurists, undp, and gaje have all helped the aulai and universities in various ways to accelerate the funding, organize conferences and workshops on clinical legal education, faculty training, and exchange program for staff members� 63 peggy maisel , supra note 60, at 375� 64 see kenneth s� broun, supra note 61 at 237� 65 see legal aid and law clinics in south africa vii (david j� mcquoid-mason ed�, 1985) 66 kenneth s� broun, supra note 61 at 236� 67 peggy maisel, supra note 91, at 384� 68 the survey was conducted by peggy maisel, associate professor and founding director of the clinical program, florida international university college of law� empowering the underprivileged: the social justice mission for clinical legal education in india 332 international journal of clinical legal education issue 19 since the era of apartheid, social divisions have been a serious problem for south africa� because of this historical inequality, the justice system was struggling to support the underprivileged sections of the society� the university law clinics in south africa have therefore tried to reach a large number of people through their community clinics� clinical legal education should be adapted to different social circumstances� there might be some misbalance on the teaching ethics and the ethics of a clinic� but eventually, the south african model could become a best practice model for all the countries with a large unrepresented and underprivileged population� d. conclusion on the basis of the findings of this chapter on clinical legal education in china and south africa, the next section will begin to establish some best practice models for clinical legal education in india� in the next chapter, some model clinics will be proposed taking into account what indian society needs� v. the indian model a. introduction legal education of india has been described as a ‘sea of institutionalized mediocrity with a few islands of excellence’�69 there are often calls for reform of legal education, for a system which is of excellent quality and can spread its scope to be more sensitive to the underprivileged sections of the indian society� it must be kept in mind that law grows when it engages with society and interacts with other branches of knowledge� engagement with social problems and movements make legal education relevant and contextual� for this to happen, a liberal, holistic and decentralized approach to curriculum planning and development of clinical teaching is necessary, for which each university teaching law should have the primary responsibility� law schools should take up the clinical legal education syllabi to implement it in line with local needs through some clinic-based activity� to implement this sort of activity, a meaningful coordination with the local bar and bench, non-government organizations, and legal services authority is required� this combined effort to set up social justice-based clinical activity will make legal education more socially relevant and meaningful� this chapter deals with creating a model for law schools’ clinical activity which will not only supplement the curricular requirements of clinical legal education but also complement social justice-based clinical legal education and secure the rights of underprivileged groups in india� b. rural access to justice ‘the soul of india lives in its villages’ mohandas karamchand gandhi in the beginning of the 20th century, mohandas karamchand gandhi, father of the indian nation, 69 n� r� madhava menon, to go from mediocrity to excellence, the hindu, june 18, 2010, available at http://www� thehindu�com/opinion/lead/article470073�ece?homepage=true� 333 expressed this thought-provoking statement� even today, the same could be said� data from the census of india, 2011 shows us how many people live in rural india: 833,087,662 persons live in rural india, amongst them 427,917,052 are men and 405,170,610 are women�70 most rural indians do not have in-depth or accurate knowledge about the administration of justice or administration and governance procedures� this lack of knowledge makes it difficult for rural indians to access the system of justice delivery, administration and governance� not only that, the problem of a lack of transparency and accountability in the administration and governance system is, in part, result of that ignorance� the focus of this clinic model is on the reform of legal education to accelerate the empowerment71 of marginalized rural communities in india� this model is primarily inspired by the community lawyering movement of south african clinical legal education� the idea of community lawyering in india as a way to ensure access to justice and legal empowerment for the underprivileged is gaining importance as ‘advocacy on behalf of a group is seen as more efficient and cost effective, particularly when the group as a whole is at odds with the social, economic, cultural, and political situation’ 72� if we look at jindal global law school (jgls) and the institute of rural research and development (irrad), we can broadly determine the nature and duties of a clinic for the empowerment of rural indians� using clinical legal education methodology, irrad and jgls train rural villagers in their locality about government programs enacted to help them� the training explains the right to information act and the proper channels for following up on applications that become stuck in the system� armed with the knowledge acquired over the course of the year-long training, villagers monitor the functioning of local government and share their findings at periodic feedback sessions� residents of over 200 villages have been trained as of december 2011� to conduct the training, irrad staff partner with law students and their teachers at jgls� jgls established a good governance and citizen participation clinic� for the training, irrad has published brochures in the local language, hindi, drafted by law students on government schemes and the right to information� the clinic supports the efforts of villagers in several ways in addition to the governance training, including through panel discussions with government officials, policy advocacy based on problems identified in the field, legal aid camps in villages, and responses to bribe-seeking and other forms of corruption that villagers encounter� irrad and jgls seek to replicate the ngo-law school-community model through conferences, publications and research on its impact� they host an annual conference on good rural governance and citizen participation and in 2011-12 held regional conferences across india�73 to support good governance now partnerships, irrad and jgls offer training to interested ngos and academic institutions to deliver training and support to rural communities� irrad’s rural research center and jgls’ 70 census of india (2011), available at http://censusindia�gov�in/2011census/censusinfodashboard/index�html (last visited jun� 04, 2013)� 71 access to justice for the rural poor includes not only access to courts and legal redress mechanisms, but also good governance including transparency and accountability in the making of laws and process of their implementation and administration� 72 sopriyo routh, experiential learning through community lawyering: a proposal for indian legal education, 24 pac� mcgeorge global bus� & dev� l�j� 1,116 (2011)� 73 in 2011, regional good governance and citizen participation conferences have been held at assam university, silchar; j�s�s� law college, mysore, karnataka and chanakya national law university, patna, bihar� empowering the underprivileged: the social justice mission for clinical legal education in india 334 international journal of clinical legal education issue 19 clinical program also host fellowship recipients and other visitors engaged in research or teaching on rural development and governance� this sort of experiential clinical model can be an inspiration for all law schools in india� the collaboration between a law school clinic and a ngo while working in the rural development sector can bring significant change in that particular area, when it comes to citizen participation in democracy, governance and administrative procedure� the students who were involved in this program were required to prepare legal literacy materials in local languages that explain in easy-to-understand terms government schemes, programs and acts like the public distribution system, the anganwadi system, the right of children to free and compulsory education act, the national rural employment guarantee scheme, the midday meal program, and the right to information act which rural community members should know about�74 they also assist community peers to prepare right to information applications and write letters to government officials� students have also undertaken advocacy on behalf of the rural community to various commissions and statutory bodies�75 the students who work for this sort of clinic have the opportunity to develop skills in interviewing, client representation, fact investigation, report writing and documentation, and emphatic lawyering�76 it could be said that this model cannot be followed or implemented by other law school clinics because of a lack of financial resources� but this lack of financial resources can be overcome through collaboration between that particular law school, a local ngo working in the area of that particular law school and the district or taluka legal services authority� the district or taluka legal services authority can create the platform and take some financial initiative for the combined work with the law schools and ngos with the help of the national legal services authority (free and competent legal services) regulations, 2010, national legal services authority (legal aid clinics) scheme, 2010 and para legal volunteer scheme, 2010� it is now up to law schools to decide whether they are ready to undertake this sort of clinical activity� it will also be up to the law schools to find their local ngo partner and enlist the help of the district or taluka legal services authority� c. human rights litigation and law reform strategic human rights litigation seeks to use the authority of the law to advocate for social change on behalf of individuals whose voices are otherwise not heard�77 in india, the use of public interest litigation has the same meaning� human rights litigation can be a helpful tool to provide relief to a large number of people and to create a policy that state must follow� it can provide ‘broad access to justice and judicial redress to all persons or class of persons that are in a position of poverty, 74 see promoting clinical legal education in india: a case study of the citizen participation clinic 18-22 (2012) (a joint report prepared by cornell international human rights clinic and jindal good rural governance and citizen participation clinic)� 75 id. 76 id., at 9-12� 77 litigation report: global human rights litigation, open society justice initiative (feb� 2012), available at http:// www�soros�org/sites/default/files/litigation-report-20120228�pdf (last visited jun� 04, 2013)� 335 vulnerability, disability and exclusion in general’78 � noble laureate amartya sen refers to poverty as not only the lack of resources but also the concept of capability�79 so it is necessary to provide essential tools to the underprivileged to use their assets to move out of poverty and to change the rule of power in society� human rights litigation is an essential tool to make government policy more comprehensive and functional to alleviate poverty and other social exclusions� it is through both human rights litigation and law reform clinics, that social or economic issue that need to be dealt with can be found�80 china’s legislation clinic, where law students work with civic bodies and grassroot organizations to find specific issues in legislations for amendment, is the inspiration behind this human rights litigation and law reform clinic� in india, there are some examples of public interest litigation by law students81 and also zeal towards law reform activities� the legal aid society of the west bengal national university of juridical sciences (nujs), kolkata has been involved in seeking justice for scheduled castes population in puri district, odisha since 2010�82 they have filed specific complaints with the odisha state human rights commission regarding right to water, right to enter into the temple for the scheduled caste population and free and compulsory education for the scheduled caste children� because of the intervention of the nujs legal aid society, the district legal services authority has been proactive in engaging legal aid lawyers for the scheduled caste population of puri� the change in the lives of the scheduled caste population of puri because of the intervention of the nujs legal aid society has been discussed in the seminar on civil rights of scheduled castes and scheduled tribes�83 in that seminar, leaders of scheduled caste community and various human 78 discrimination on the grounds of poverty often prevents access to the very tools needed to fight this condition� it is important to fight against recognized forms of discrimination which include race, ethnicity, religion, gender and others� poor people are also often discriminated against on the basis of their socio-economic condition� the challenge is to overcome this major obstacle to their empowerment; otherwise, those trapped in poverty may fall into a vicious circle from which it is hard to break out� see maritza formisano prada, empowering the poor through human rights litigation 28 (2011)� 79 drawn up and expanded in the work of amartya sen� see generally amartya sen, development as freedom (1999); inequality re-examined (1995); commodities and capabilities (1987); poverty and famines: an essay on entitlements and deprivation (1982)� 80 law school based, credit bearing course or program that combine clinical methodology around skills and values training with live case-project work, all or most of which takes place in the human rights context� see arturo j� carrillo, bringing international law home: the innovative role of human rights clinics in the transnational legal process, 35 colum� hum� rts� l� rev� 527, 533-34 (2004) (here, ‘human rights context’ refers to ‘a dynamic ecosystem comprised of the formal and informal rules, procedures, mechanisms, and actors that continuously interact at myriad levels to apply, promote, defend or develop human rights principles’)� 81 students of the v� m� salgaokar college of law, goa have successfully filed 14 public interest litigations before the mumbai high court (panaji bench) on various issues ranging from the use of helmets to violations of coastal regulation zones� see v� m� salgaocar college of law, http://www�vmslaw�edu/� 82 author was a part of the team consisting of prof� anirban chakraborty, soumyajit das (ll�m student), sabyasachi chatterjee (ll�m student), s� jyotiranjan (ll�m student), amarendra gogoi (ll�m student), niteesh kumar upadhyay (ll�m student), lokenath chatterjee (ll�b student), puneet rathsharma (ll�b student) and rajesh kumar singh (nujs staff)� 83 the seminar was organized in puri district, odisha jointly by the legal aid society, the west bengal national university of juridical sciences and district legal services authority, puri on september 01, 2012� empowering the underprivileged: the social justice mission for clinical legal education in india 336 international journal of clinical legal education issue 19 rights ngos presented their views and voiced their appreciation for the work done by nujs legal aid society� the activities of the students in this sort of human rights litigation and law reform activity will help them to develop interviewing skills, counseling, drafting capability of the students� as one scholar has put it, ‘…human rights lawyering involve litigation, advocacy, monitoring and reporting, policy and legislative drafting, organizing and lobbying. human rights clinics aim to acquaint law students with this variety of practice, and to engage them critically and practically in developing one or more of these skills.’ 84 it is important that if this sort of clinic is to work, it must be a long-term project� that is the only way to gain people’s confidence� the goals of clinical legal education have to be developed in this sort of clinic and these goals may include advancing human rights and social justice�85 this human rights litigation and law reform clinic can operate alongside the rural access to justice clinic to ensure community engagement� for law schools, community engagement for human rights litigation and law reform should occur in three spheres: teaching and learning; community service; and research� engaging with the community is an important way of making students aware of society around them, teaching them to apply academic learning to real life, providing material for curriculum and research that is relevant to society, preserving traditional knowledge and culture, and promoting social justice� proper collaboration and division of work between the two clinics could bring significant change for the underprivileged and fulfill the goals and values of clinical legal education� d. conclusion these proposed models of clinical activities for indian law schools focus on fulfilling the curricular objectives of clinical legal education at large and also to put some stake on indian socio-economic structure to fulfill the millennium development goals� though it is argued by the western world that clinical legal education is primarily concerned with skills training for law students, in a world full of poverty and discrimination in distribution of wealth, we can set an agenda to serve the underprivileged and develop lawyering skills� the issue of financial resources to run clinical program is important in india as most indian law schools are privately managed� this is also a point where we can learn from clinical programs in china and south africa� china manages its clinical programs using money from donors through the organized efforts of cccle� a developing country like south africa has also formed a national forum of university-based legal aid institutions, named aulai, which can then take a more organized approach towards getting funding� in india, many lacunas can be addressed by forming a national legal aid advocacy institution for law schools, to help them set up their clinical programs and get funds from various governmental, non-governmental and international organizations� it is promising that there is a new generation of legal academics and students who have risen in india with a mission to inspire others to action, particularly in the pursuit of justice� the government 84 deena hurwitz, engaging law school students through human rights clinics. a perspective from the united states, 11 austl� j� hum� rts� 37, 38-39 (2006)� 85 jocelyn getgen kestenbaum, esteban ho yos ceballos & melissa c� del aguila talvadkar, catalysts for change: a proposed framework for human rights clinical teaching and advocacy, 18 clinical l� rev� 459, 482 (2011-2012)� 337 is also expanding its vision of legal education, working towards systematic reform and listening to ideas about how to make legal education more meaningful and relevant for indian society� now, it is only a matter of time until we see law students, under the supervision of their teachers, working closely with underprivileged communities throughout india to make the preamble of the indian constitution a reality for all� vi. suggestions and conclusion having looked closely at the nature and status of clinical legal education in india, and in three other countries, it is clear that indian clinical legal education’s primary objective is to secure social justice mission and work for the empowerment of underprivileged groups in indian society� the two models put forwarded in this paper could be of great value, not only helping to empower the underprivileged but also to ensure the goals and values of clinical legal education� now all the stakeholders of legal education have to take up certain points, to create a platform for the law schools to introduce these models of clinical teaching, get funds to continue with these models, and train faculty members in clinical teaching� these suggestions can be divided into the following headings: a. for law schools/ colleges/ universities: it has been made mandatory by the bar council of india for every law school or college to have a functional clinic which should work with the community to provide basic legal services� it is now suggested that each law school or college should establish their clinic in rural or semi-urban areas� this kind of clinic may be established in association with any local ngo or municipality or panchayat authority� the office must be easily accessible by the community members� it would be helpful if those behind the institution liaise with the district or taluka legal services authority, telling them about the clinic� these government bodies could provide some funding� the community clinic should be open at the weekends like saturday evening or sunday morning because the prospective client must be free to attend� the ideal student group for a clinic should not exceed 25 for each saturday evening or sunday morning� the forth year and fifth year (in case of 5 year ll�b course) students or second year and third year (in case of 3 year ll�b course) students should be divided into several groups to run the clinic each saturday evening or sunday morning and these groups should rotate as is convenient� one faculty member experienced in clinical teaching must supervise the students� in other cases, lawyers appointed by the district or taluka legal services authority may also supervise the students in their clinical activities� if there is continuous clinical activity in a village, villagers will be more confident that they are not going to be left alone, and are more likely to come to the clinic for advice� the cases may range from domestic violence, maintenance, land related dispute, rti matters, to atrocities towards sc/st population� first of all it will be the students who will take care of these cases, interviewing and counseling the client, prepare necessary drafts and instructing the client to approach the appropriate authority for consideration� for example, if the client is in need of a legal aid lawyer to defend his or her case in a court of law then the clinic can act as a bridge between the legal services authority and the client� empowering the underprivileged: the social justice mission for clinical legal education in india 338 international journal of clinical legal education issue 19 b. for bar council of india/ state bar councils/ bar associations: the bar council of india (bci) under the advocates act, 1961 has the authority to regulate legal education� bci has framed several rules, curriculum development committees to bring excellence to legal education� despite these efforts there are areas where gaps exists, like in clinical legal education� as establishing a clinic is now mandatory under the bci rules, so clinical activity of the students in those clinics must be credit-based� it is now urgently required by the bci to take clinical activity under the credit based/ marks based system� it is also important to establish a sub-committee on clinical legal education under the legal education committee of bci, where trained indian clinicians will be members� the sub-committee should work to standardize clinical programs and make it a uniform activity, inspecting and monitoring clinical programs of various law schools, liaise with various authorities to get fund for clinical programs, arrange workshops and seminars for clinical law teachers or designated clinical faculties once in a year� state bar councils and bar associations should play an active role in implementing the clinical programs in each state� state bar councils with the help of local bar association may provide some mentor lawyers for the students in a particular clinic� the mentor lawyers, in-cooperation with the designated clinical faculty, may supervise the works of the clinic students in saturday evening or sunday morning� this would not only build a working relationship between the senior lawyers and the future lawyers but also bring a idea of professional ethics and etiquette� c. for national legal services authority (nalsa): the potential of a law school to reach the community has historically been ignored by the national legal services authority� but recently, some of nalsa’s activities have created a light in the middle of the sea� the nalsa clinic regulation rules, 2010 have shown the direction towards collaboration between the legal services authorities and the law schools� now, nalsa should come up with a resolution for all the district legal services authorities to take appropriate steps to collaborate with law schools in that district to provide legal services at the door steps of the people� the model of starting clinic at rural or semi-urban areas can be effectively implemented with the help of the district legal services authority or taluka legal services authority� one legal aid lawyer may be present there to collaborate on behalf of the legal services authority and if any litigation comes he may take the matter to the appropriate court of law� the clinic students can work under the legal aid lawyer to prepare the necessary documents� it is also important for nalsa to come with some funds for these collaboration activities with the law schools� nalsa should allocate a separate fund for every district legal services authority depending upon the number of law schools in that district� there must be an equal amount of fund for every law school in each district and the district legal services authority may distribute the funds to the law schools for running the clinic activities and at the end of each financial year they may ask for an audited report of the expenditure of funds by the clinic� 339 d. for university grants commission (ugc): finally, the ugc must take some steps to develop the faculty standard for clinical teaching in law� it should start a faculty development course on clinical legal education for staff of law schools in charge of teaching practical papers� first, ugc should look at some model institutions which have exceptionally good clinical activities and have trained clinical faculty members and use these models as a basis to develop a curriculum for a faculty development course in clinical legal education� the duration of this sort of course may range from two to four weeks� the model institutions, after preparing the curriculum, will conduct the course in association with ugc� there should be at least four to six model institutions throughout the country to conduct the course� ugc must provide funds for this course and encourage experienced law teachers who have prior experience in conducting large scale clinical programs in their own university or college to teach this course� another faculty improvement activity which can be undertaken by ugc is to start some fellowships for clinical law teachers to undergo special training in clinical legal education in foreign law schools� previously the united states india education foundation (usief), new delhi in association with govt� of india had the neheru-vanderbilt fulbright scholarship for indian clinical law teachers to study one year specialized ll�m in clinical legal education from vanderbilt university, usa� but this program has been discontinued� now, there is no opportunity for indian clinical law teachers to take such courses, mainly due to a lack of funds� however, the ugc may start similar programs with some foreign universities who offer an ll�m in clinical legal education, pg diploma in clinical legal education, or a diploma in clinical legal education� bringing back the fellowships for law teachers in clinical legal education will also encourage them to work hard for their respective law school clinics and the rigorous training will make them equipped with the art of clinical working and supervising� on a final note, the author is of opinion that indian clinical legal education’s primary objective is to ensure social justice and empower the underprivileged groups in indian society� this mission cannot be achieved unless there is a combined effort from the law schools, bci, ugc and nalsa� the models which have been formulated in this paper and the formality of starting clinical programs like that will be the primary responsibility of the law schools� it is the stakeholders of legal education which must act positively to carry forward with these models� empowering the underprivileged: the social justice mission for clinical legal education in india assessing experiential learning – us, them and the others richard grimes1 and jenny gibbons2 university of york, uk introduction this paper looks at the assessment of experiential learning primarily in the context of the learning and teaching of students using ‘hands-on’, interactive and reflective methods. it will, at various points, also refer to the evaluation of programmes and modules in terms of their impact and where improvements, in pedagogic terms, can be made. the ‘us’ here are the teachers/tutors who are employed to promote, support and otherwise facilitate the advancement of the students’/learners’ education. the ‘them’ is the student body on a particular course of study. the ‘others’ are those who have a vested interest in the form, content and means of measuring achievement of and in legal education – be they professional regulatory bodies, employers or the wider public. the term ‘experiential learning’ refers in this setting to an approach to education in which students are exposed to real or realistic legal issues and problems. in this 1 richard grimes is director of clinical programmes at the york law school, university of york uk. he is a solicitor and was formerly a partner in a provincial law firm in the north of england, director of the institute of justice and applied legal studies at the university of the south pacific, professor and head of law at the university of derby and professor and director of pro bono services at the (then) college of law of england and wales 2 jenny gibbons is a supervising solicitor in the law clinic at the york law school. she is also a programme leader and module leader on the llb at the york law school and formerly taught on academic and vocational law programmes at bpp law school. ( special issue problematising assessment in clinical legal education ) ( 107 ) process they are required, in a structured way, that may or may not lead to the award of academic credit, to apply theory to practice and then deconstruct and analyse what took place (or did not as the case may be) and why. in the world of legal education an experiential approach to study is often termed ‘clinical’ and the word ‘clinic’ will appear frequently throughout this paper in referring to the vehicle through which experiential learning may be presented and delivered. finally, by way of introduction, the word ‘assessment’ is intended to include the measurement of both the quality and extent of student learning (regardless of whether academic credit is gained) and the perceived value of what is being delivered from a learning and teaching perspective, by the ‘us’, the ‘them’ and the ‘others’. a starting point unless one is talking about ‘right’ and ‘wrong’ answers as determined by the assessor and measured by pre-defined criteria, for example in a multiple choice test, we maintain that there is little or no precise science in assessment. rather there are processes and systems aimed at establishing what has been termed elsewhere as validity, reliability and impact.3 we also suggest that assessment in an experiential 3 see cees pm van der vleuten and lambert wt schuwirth, assessing professional competence: from methods to programmes, medical education 39, 309-317, 2005. the same authors make the important point that there are no inherently good or bad means of assessment. we suggest whilst this is an important observation there are certainly better and worse ways and will explore this in the context of clinical legal education shortly. or clinical setting is no different, other than the nature of such study perhaps more readily lends itself to innovative methods of assessing. this will be explored more fully later. if there are no definitives or absolutes on how we assess, we must seek the means by which to establish and ensure the applicability, value and credibility of the relevant process if we wish to justify and monitor what is taking place. in our experience this inevitably means devising a set of guidelines and safeguards starting with an explicit iteration of what is expected, in terms of student performance (typically what the student is intended to achieve). this begins, at least in educational parlance, with what are commonly termed ‘learning outcomes’. we suggest that it is not possible to assess any aspect of a module, course or programme, either student performance or the effectiveness of the teaching and learning, unless clear learning outcomes are set in advance of the period of study and that these are made apparent to and/or by both student and tutor at the outset. the importance of the learning outcome as a pre-requisite to effective assessment is well documented elsewhere and we wish to simply underline its significance here.4 the second of our essentials in terms of a starting point can be summarised by the often quoted acronym smart.5 although this has had term has assumed various 4 see: clauis nygaard, clive holtham and nigel courtney, improving students’ learning outcomes, copenhagen press, 2009. for a wealth of resource materials and instructive discussions see: www.learningoutcomesassessment.org and in particular the transparency framework, accessed 15 october 2015 5 for a useful and very well-referenced discussion about smart principles in general and the link with learning outcomes in particular see: k. blaine lawlor and martin j. hornyak, smart goals: how the incarnations it is normally taken to stand for specific, measurable, appropriate, relevant and timely (or time-bound). we maintain that both module/programme outcomes and assessment tasks should be smart. what does this mean in practice? a range of pertinent questions arise: · having set clear learning outcomes, do the means used for assessing whether they have been achieved relate specifically to each of the relevant outcomes? · are the outcomes and is the assessment regime fitting in terms of the level of the student’s study, the juncture at which the outcome is expected to be achieved and when the assessment is to be carried out? · are the outcomes and means of assessment likely to be perceived by the tutor and student as applicable to the relevant study? · can the outcomes and assessment be logistically fitted into the period of study and any assessment slot that may follow it? · does the whole have credibility for tutor and learner? in other words is there ‘buy-in’ or ownership by all concerned?6 the third point concerns feedback – an essential component and potential complication in any form of learning and teaching. this too can be dealt with, in part, under the smart umbrella. whether or not the students receive marks or grades we suggest that feedback is, unless we are concerned only with the immediate demonstration of competency (such as a driving test), a vital component application of smart goals can contribute to achievement of student learning outcomes, developments in business simulation and experiential learning, volume 39, 259, 2012 6 for a very clear explanation of the importance of shared ownership between learner and teacher (albeit in a school context) see: cheryl a jones, assessment for learning, learning and skills development agency, 2005, and in particular pp 7-8 of the learning process.7 it is sometimes suggested, implicitly at times, that feedback itself is formative assessment whereas the allocation of a number or letter is summative.8 we dispute this. feedback without a mark or grade, be it oral, written and provided by self, tutors and/or peers may be taken to mean ‘formative’ assessment. typically end of module/course/programme assessment, where students receive their results, coupled possibly with inter-year ranking, is termed ‘summative’. in our view however there is no reason why assessment cannot serve both purposes at the same time and indeed, unless we are solely measuring competence at a defined moment in time, there is every reason why it should.9 the ‘us’ and the ‘them’ are likely to find the formative/summative assessment hybrid has most value when used for the dual purpose of measuring performance and enhancing learning whereas the ‘others’, notably regulators and perhaps the wider public interested in the quality of what is emanating from our universities and colleges, may be more interested in a demonstration of competency at the point of exit from or entry to the various stages of the professional education progression 7 see also: harrison, c. j., könings, k. d., molyneux, a., schuwirth, l. w., wass, v., & van der vleuten, c. p. (2013). web-based feedback after summative assessment: how do students engage?. medical education, 47(7), 734-744. 8 for a discussion of the relationship between formative and summative assessment see: kay burke, balanced assessment: from formative to summative, solution tree press, 2010 and m.taras, summative assessment: the missing link for formative assessment, journal of further and higher education, vol. 33, 2009, 1 9 see also: van der vleuten, c. p. m., schuwirth, l. w. t., driessen, e. w., dijkstra, j., tigelaar, d., baartman, l. k. j., & van tartwijk, j. (2012). a model for programmatic assessment fit for purpose. medical teacher, 34(3), 205-214. map. passing a bar examination as required in many countries, (notably us states) and possibly to become the norm in the uk, is an example of such.10 the importance and value of assessment from both formative and summative perspectives is stressed by a number of writers and the desirability of a balance (or at least extensive use of both to enhance learning) is powerfully made by sambell et al.11 our final comment under these basic principles concerns the means by which assessment is carried out. for tutors and students this normally takes one or more of the following forms: written examinations (seen or unseen; open or closed book), course work (essays and other written tasks), oral presentations – including reports, role-play and the viva voce (although in our experience these are means that are largely under-used in legal education outside perhaps of clinical skills and overtly vocational courses), portfolios (ranging from collections of students’ work to reflective submissions), entry and exit questionnaires and attendance/class contribution. one developing area of practice is the use of on-line tools for assessment, which we would suggest certainly have their place in a clinical context. 10 the most recent consultative document by the solicitors’ regulator in the uk, the sra, suggests that testing competency at the point of admission may well be required in future. (training for tomorrow: a competence statement for solicitors, 2014 – we are awaiting the outcome of this consultative process). at the time of writing it is unclear if the barristers’ regulator, the bsb, will require a similar provision. the bsb already has centralised examination components for the relevant vocational course (the bar professional training course or bptc). for admission into legal practice in the uk there are currently a series of hurdles staring with undergraduate qualifications and progressing through a required vocational course and finishing with the completion of an apprenticeship although this, too, is under review. 11 kay sambell, liz mcdowell and catherine montgomery, assessment for learning in higher education, routledge, 2013, 32-48 a fuller picture of the means by which assessment can be carried out is usefully listed elsewhere.12 it is entirely justifiable in our view that, providing the means by which assessment is carried out are clearly articulated and aligned with learning outcomes, then any or all of the means listed or referred to above may have their place. clearly some may be more appropriate than others, given context, and in a clinical setting, for example, it is unusual to have a written examination. that said each format for assessment may be appropriate and the combination used in any particular module or programme should surely be structured to both best assess the level of performance and to provide students with the opportunity of maximising their learning opportunities (and end result capacity)? as indicated above the often intimate confines of experiential work, where students may be exposed to regular and frequent tutor contact and on-going feedback lends itself to particular assessment forms. this is explored below. the complications so far so good. the basics outlined above are, we think, clear and applicable across a range of learning situations, experiential and otherwise. let us now turn to learning in an experiential clinical setting. first, some definitions: 12 see: sue bloxham and pete boyd, developing effective assessment in higher education, oup, 2007, 205 as suggested already, by experiential we mean exposing students to learning and teaching situations where they are expected to apply theory to practice in some guise. this may be through role-play, through simulated case studies or, as we focus on below, in ‘live-client’ work. this exposure provides both an opportunity to experience the application of knowledge and (depending on outcomes set) related skills and values and to deconstruct and reflect upon the experience gained.13 we use the word ‘clinic’ or ‘clinical’ at various junctures in this paper. here we mean the use of real or realistic situations where students engage in legal casework or address and analyse legal issues based on the exposure to such. this inevitably means that the learning is experiential but can be distinguished from the generic term in that clinic, in its various forms, involves both the experience and a structured facility for refection and (possibly) re-application. the clinical models in which this learning can take place are well documented elsewhere and range from simulation through legal advice and representation to campaigning work and legal literacy programmes.14 one final defining term relates to the importance of the compliance of all parties with professional standards within clinical legal education. by professional 13 for a discussion of the role of learning and teaching through simulation see: caroline strevens, richard grimes and edward phillips legal education: simulation in theory and practice, ashgate, 2014 and for the live-client dimension see: hugh brayne, nigel duncan and richard grimes, clinical legal education: active learning in your law school, blackstone press, 1998 14 the models of clinic are set out and analysed in: kevin kerrigan and victoria murray (eds), a student guide to clinical legal education and pro bono, palgrave macmillan, 2011 and for a more international view see: frank s bloch, the global clinical movement: educating lawyers for social justice, oxford university press, 2011 standards we mean the knowledge of (and more importantly the practice and application of) concepts such as conflicts of interest, client confidentiality and professional values. it also includes procedural matters such as keeping client files in order and working with deadlines. for the ‘us’ this is for our own professional credibility and to satisfy the compliance requirements of the ‘others’. for the students this is an important aspect of their learning in relation to professional standards and professional values, and it compliments other parts of the curriculum where these issues are taught often in the abstract. the first complication comes with the reflective nature of experiential learning. kolb’s well-known (if much critiqued) learning cycle sums up the process well, even if it may not be as simple as the graphics kolb uses suggest.15 if students are in a state of constant or at least regular application, abstraction and re-application and much of this involves using teaching staff and co-students as sounding boards, whose work in the end is being assessed? in some ways those who suggest that clinic is problematic because of the influence of tutors in the students’ final products are perhaps being disingenuous as would they fail to respond to a student enquiry at the end of a lecture or seminar on the basis that it may skew what the student 15 a new edition of kolb’s book – david kolb, experiential learning: experience as the source of learning and development, peasrson education, 2014 – has recently been published in which he helpfully addresses the criticisms levelled against the initial iteration that the original theory was rather onedimensional. eventually produces in the exam room or in an essay?16 presumably not. the ‘us’ amongst readers surely intend to assist students and influence, in terms of the progression of their learning, their understanding, assessed or otherwise. on the other hand the extent of tutor input in most clinical settings is often extensive and therefore, understandably, open to suggestions of significant impact on the students – out of alignment with contact that those students (and importantly others without such exposure) may have in the rest of their studies. this clearly raises a subjectivity issue, one that in fairness runs through the world of assessment and can only be answered satisfactorily when considering the individual assessment regime and any related moderation processes – see below. the next challenge is associated with the teaching environment – one where the role of the student group is often to the fore. where students work intensively with each other as a structured part of the programme how do the assessors determine who is responsible for what work that has been done? also, should assessment reflect the group’s input or that of the individual? of course the simple answer is to be found by asking and answering: what are the learning outcomes? if effective group work is one of them is the evidence of performance how well the group functions and, if so, therefore should all members share in the same level of relative success? 16 lest it be thought that our own, admitted, enthusiasm for experiential learning blinds us criticism see a powerful critique of the notion and practice of clinical legal education in robert j condlin, tastes great, less filling: the law school clinic and political critique, journal of legal education, 36 (1), 1986, 45 the final difficulty here is the fact, in live-client clinical work at least, that students will inevitably have different clients with different problems. if we are assessing how they perform does the varying experience make a difference in terms of validity and reliability? to bring some of these issues together let us take an example… imagine a law school clinic where students operate in groups (or as it is often termed ‘firms’). group 1 under this model has an interview with an emotionally upset client in a sensitive family law case. the interview lasts over an hour and litigation looks to be a likely course of future action. the client has never been to court before and she is very uncertain of the process and anxious about the consequences. the students work particularly hard to extract the case details and to reassure the client. by contrast group 2 have a client who is seeking advice on a small business set up. she is relatively experienced in matters commercial and brings to the interview a set of papers and questions she feels she needs assistance with. the interview is over in under half an hour and the students feel they were provided with most of the information they needed without detailed questioning of what turned out to be a very informed and at ease client. the fictional (but we suggest, realistic) module that both sets of students are taking here is credit-bearing. what is the significance of their differing experiences? of course the answer depends primarily on what learning outcomes have been set – is interviewing competence being ‘tested’; is it the professionalism of the students in client-care up for examination; or, is the interview merely a vehicle for other outcomes such as applied legal research, subsequent drafting skills or a critique of the adequacy of the law in relation to client/societal needs? the module involved may, of course, have a combination of learning outcomes to be achieved covering a mix of legal knowledge, lawyering skills and/or professional values, personal attributes and broader ethical concerns. in terms of purely formative assessment (in the sense of assessing their work with the sole purpose of enhancing learning – typically through oral or written feedback) the difference is probably very slight. yes, the experience has been different but through probing a tutor could establish what happened, what could have happened (for example by asking ‘what if your client had been less responsive or more confident?’), what might be done differently next time and what the wider implications are in terms of shaping policy and possible law reform? when it comes to allocating marks or grades in a more traditional summative assessment model the situation could be very different especially if the nature and extent of the interviewing experience affects the opportunity for the student to meet the established assessment criteria. so how can these potentially significant challenges be addressed to ensure, so far as is possible, van der vleuten’s call for validity, reliability and impact? a model for experiential assessment we suggest, based on the literature (albeit primarily in a non-legal education context) and from personal experience in hands-on learning situations, that particular forms of assessment have a certain resonance in experiential learning in general and in ‘clinic’. in particular we consider that these are the learning portfolio, tasks based on simulation, oral examinations (viva voce) and the on-line assessment of the appreciation of applicable professional standards. whatever form of assessment is used the charge of subjectivity raised above needs to be addressed. we suggest that this is done through a robust moderation process – both in-house and externally. let us now turn to these identified assessments’ formats: the learning portfolio by ‘learning portfolio’ we mean a document produced by a student that catalogues the key elements of their learning experience and which includes reflective content. this latter point is what differentiates a learning portfolio in experiential learning from a portfolio produced in other subjects, most notably art; that is a collection of student generated work. the use of learning portfolios in clinical legal education is not a new idea, and there are an increasing number of resources available to help the ‘us’ to guide the ‘them’ in how to document and evidence their learning experience.17 we do not intend to replicate any of the ‘how to’ guidance here. our focus here is on the ‘why’. from our day-to-day interactions with students in clinic it is clear that for the majority of them it is a transformative experience. in all stages of the process, from evaluating the basic case, to preparing for interview, identifying the clients’ needs, researching the legal issues, drafting the letter and beyond the students readily articulate in conversation that they have learning from the experience. the learning portfolio as an assessment task is a way for the students to capture and express the extent of this learning and receive credit (either formal or not) for the way they articulate this developmental process. there is scope for a learning portfolio to demonstrate whatever aspects of the experience is required by the learning outcomes and the assessment framework. we would suggest that the scope of the content can be very broad, for example it can include discussion on the types of cases undertaken, the substantive law, the procedural rules, the legal skills involved and the professional and ethical issues encountered. the reason the content can be so broad, is that the assessment is of the students’ reflection on their experience, rather than the actual experience itself. the experience is therefore a vehicle for the reflection. 17 for useful guidance on the use of reflective portfolios see the work of moon, most notably, jennifer moon, learning journals: a handbook for reflective practice and professional development, routledge, 2006 how to facilitate reflective practice is another topic in itself and that will not be explored here. it is however widely accepted that reflection is an important component of experiential learning and comprehensive guidance can be found elsewhere.18 the discussion here is on why the reflective element of a learning portfolio is of such benefit to students in a clinical context, and for this we can link back to the example set out above. in the group 1 example, the firm has had a particularly rich, if demanding, experience in terms of the skill of interviewing, and in their need to understand and explain the substantive and procedural rules of family law. however, even within the firm possibly only two or three of the students will have conducted the interview and not all of the students might have undertaken the consequent research or drafting required. where a learning portfolio is an assessment item this lack of equivalence is of limited concern as it is for the students to decide which aspects of their experience they focus upon within their critical analysis of that experience and the framework set by the outcomes expected and assessment tasks set. the rationale for the use of learning portfolios is even stronger when you consider the group 2 example. although on the face of it their experience of clinic has been less intense and possibly ‘poorer’ as a result, there is still a wealth of material they can explore within the learning portfolio. for example, they could critique the relationship between a client and a lawyer, or reflect upon any shortcomings in the 18 see for example, anne brockbank and ian mcgill, facilitating reflective learning in higher education oup 2007 law in relation to setting up small businesses. the flexibility of the learning portfolio as an assessment item ensures that it is the quality of the reflection on the experience is of more importance than the experience itself. the students could also reflect on the ‘what if’, for example where a client may not have been so forthcoming. this all sounds great for ‘them’, but how about ‘us’ and the ‘others’? for ‘us’, we (as academics and legal practitioners in an institution driven by problem-based learning and where assessment is dominated by reflective submissions) initially found the marking of learning portfolios particularly problematic. how is it possible to mark fairly the submission from a group 1 student and the submission from a group 2 student when they are so different in content and where we are working with prescribed marking criteria? we have found our way through this by the adoption of a range of techniques. for example we give clear instructions about the task in a group plenary at the beginning of clinic where we make explicit the link between the assessment tasks and the learning outcomes. we also provide ongoing feedback in our conversations with students, and actively encourage them to create a personal reflective journal or diary during their time in clinic. finally, and perhaps most importantly, we utilise a robust moderation process in an attempt to try and eliminate the inherently subjective nature of the assessment of reflective writing. here two of ‘us’ independently mark submissions and an external examiner reviews a sample of work across the marking spectrum together with the feedback given to the students concerned.19 what is the view of the ‘others’ on learning portfolios and reflective writing? in other disciplines, most notably medicine and social work, such assessments are highly valued but this does not seem to play out in legal education. it is perhaps inevitable that regulators, the profession, other employers and the wider public are more concerned with demonstrations of competence rather than the production of an erudite ‘academic’ treatise. this is an area where we have a role in changing the perceptions of the ‘others’ by evidencing the impact of reflective practice in the students’ ability to obtain the requisite competence. this is a work in progress. for those (apart from us) interested in developing thoughts around experiential learning and competency, miller’s work on measuring competency may be helpful in shaping assessment policy. 20 tasks based on simulation as we have identified above, live-client clinics do not necessarily provide students with equivalence of experience. this can be problematic if you have learning outcomes that require students to, say, demonstrate legal knowledge. one useful 19 something similar has been proposed, using strategies from qualitative research. see: driessen, e., van der vleuten, c., schuwirth, l., van tartwijk, j., & vermunt, j. d. h. m. (2005). the use of qualitative research criteria for portfolio assessment as an alternative to reliability evaluation: a case study. medical education, 39(2), 214-220. 20 miller ge. the assessment of clinical skills/competence/performance. acad med1990, 65 way to assess students that is designed to mitigate against this problem is a task based on simulation. simulation is well used in experiential learning and, for many providers of clinical legal education, simulated clients are the only clients the students encounter.21 our position is that there is space for tasks based on simulation even when working in a live-client environment. the use of simulation can help to minimise the three key complications referred to above and is, in any event, valuable preparation for handling real clients and the related casework at some later stage. the first complication we have raised is the influence of tutors in the students’ final products in clinic, which is most likely to be a letter of advice to a client. for the ‘us ‘ amongst the readers, we know all too well that the level of personal input into advice letters varies widely between types of cases, and the ability or effort levels of student groups. the second complication links to the first and is based on the important place of group work within experiential learning. the third of our complications is lack of equivalence. if a clinic assessment was based on the ‘real’ letter of advice to the client it would be very difficult to evaluate the impact of the supervisor’s involvement, or attribute marks in accordance with contribution. it would also be unfair on students who had been allocated particularly easy or difficult live-client cases. 21 the use of the ‘standardised client’ as a vehicle for simulated clinical work in a legal context is discussed at length in adrian evans, assessing lawyers’ ethics: a practitioner’s guide, cambridge university press, 2011 and in paul maharg, transforming legal education: learning and teaching the law in the early twenty first century, ashgate publishing, 2007 an assessment item based on a simulated client is a way around these complications. all of the students in a clinic cohort can be given the same client instructions, the same fact pattern, the same precedent documents and the same time limits. if the task is presented to students after they have completed their live-client cases it can be treated as the final case, and given the same level of focus and attention as the real clients. the students can then use their real life experience to inform them when they carry out the simulation-based assessment task. simulation can, of course, stand alone as a means of teaching and learning as well as assessment. we suggest however that linking the real and the simulated provides rich material for learning and helpful assessment opportunities. 22 the ‘others’, in this case university employers, may question the legitimacy of this assessment item and the potential for collusion between students, as the final advice letters can be near identical in both style and content. we maintain that this is not a problem as we actively encourage students to work together in preparing the advice for this client as they would for a live client. as with all experiential learning, the learning is in the doing – in this case legal research and drafting. the final letter (and possibly underpinning research findings) is merely the evidence of this process and it is assessed accordingly, subject to the usual rules to preserve academic integrity. 22 for a more detailed discussion of the opportunities provided by effective simulation see: caroline strevens et al (op cit) and in particular chapters 1 (paul maharg and emma nicol, simulation and technology in legal education, 17) a meta analysis and chapter 4 (susan marsnik, setting the stage: using simulation as a first day of class exercise, 87) – for an overview of what is needed for simulation to work well. oral examinations the third in our suggested package of assessment is the group oral examination (viva voce). at undergraduate level this is an innovative and unusual assessment in clinic but, if module feedback is anything to go by, popular with students in the clinic. as set out above, group work is an important element of experiential learning and most students in clinic would be expected to work as part of a group. groups are responsible for the allocation of tasks and work together to create outputs, such as client advice letters. as so much of the learning in clinic takes place in groups we believe that this dynamic should be recognised in assessment. in our example the assessment is conducted as a group conversation, with individual marks being given to each of the participants. when most people hear the expression ‘viva’ they think of an individual oral assessment such as the final element of a doctoral programme. it evokes images of an intimidating and unbalanced dialogue between the expert and the novice. as such, the use of individual oral assessments is not without its critics. to use the terminology from van der vleuten above, there are questions about its validity as there is the potential for variation in content and emphasis and possible misalignment of outcomes and assessment tasks. there are also studies setting out its low reliability in that the individual examiner’s active participation in the examination can introduce bias. the effect of this is that each candidate may actually undertake a different assessment.23 studies have also found evidence that the assessment tends to be more of a candidate’s personality than their knowledge, and that the assessment is at a low taxonomic level in that it is a test of recall, rather than analysis.24 we are very mindful of these criticisms, but believe that the use of a group, as compared with an individual, viva goes some way to mitigate against the shortcomings of the individual viva. for example, we address the validity concern by giving clear instructions about what will be assessed in the viva, and aligning the questions asked in the viva with the learning outcomes. the reliability concern can be countered by the presence of two or more assessors, at least four students (to provide the group dynamic) and video recording equipment in every assessment. including a group oral examination within the assessment package of a credited clinic module is not without its problems. colleagues (and students) have flagged up concerns such as the potentially negative influence of particularly dominant or reserved participants, resourcing issues such as the over-dependency on specific staff members, and the potentially intimidating effect of an unfamiliar assessment format. the biggest issue for the university level ‘others’ is measurability. for example, are assessors grading by comparison, or on the merits of an individual? 23 for a useful discussion on oral assessment in higher education see gordon joughlin, dimensions of oral assessment assessment & evaluation in higher education, 23(4), 1998, 367-378. 24 for a brief overview of the research on oral examination in medical education see margery h. davis & indika karunathilake the place of the oral examination in today’s assessment systems medical teacher 27(4), 2005, 294-297 our experience of conducting group vivas certainly proves that the positives outweigh the negatives, and we continue to be strong advocates of the academic benefit of creating a natural style conversation to assess students learning. as with the learning portfolio, we believe that a group viva could be used to capture and discuss a wide variety of clinical experiences. within our package of assessments, we have decided to focus on the students’ understanding of the nature and extent of the skills necessary to be an effective lawyer. to give a flavour of how this might play out, we can return to the group 1 firm set out above and explain what would happen in an oral assessment. for the purposes of this illustration the learning outcome on which assessment is based here is the extent of the students’ appreciation of the range and nature of skills used by lawyers in carrying out their work for clients. following the formalities of explaining the format and setting up the recording equipment, one of the assessors asks an opening question such as “what are the principal considerations a legal adviser must take into account to ensure effective communication with whoever he or she has to deal with during the progress and management of a case?” in our experience this quickly turns into a conversation about the experiences the students have had, with relevant issues such as interview skills, legal and factual research and letter drafting discussed within the context of the client cases. the assessors ensure that all students are involved in the conversation by asking direct or follow-on questions. in most instances one or both of the assessors are familiar with the case under discussion and can make reference to specific learning events to facilitate greater reflective or analytical discussion. depending on the responses given the assessors can drill down into the depths of a student’s knowledge and understanding including their familiarity with the relevant published literature. during the assessment the assessors have a sequence of suggested questions that can be asked, but there is no prescribed format or order for these. the initial question is merely the trigger for discussion, and we try and keep naturally evolving conversations going. for example, it is not uncommon for students to start asking each other questions, or comparing their reflections on particular events with very little assessor involvement. one of the most refreshing aspects about this assessment is its authenticity – plagiarism or other academic misconduct is not possible, and there is less room for ‘retro-fitted’ (or even worse falsely fabricated) and hence unreliable evidence as is sometimes apparent in reflective writing.25 the assessment can be timetabled for longer than is needed so the conversation usually ends when the assessors indicate that they now have sufficient evidence upon which to determine marks/grades. students may be given a final opportunity to add anything else that they think the assessors should hear. feedback can then be given either orally (although the conversation will probably have produced feedback 25 see for example s. wellard and e. bethune, reflective journal writing in nurse education: whose interests does it serve?, journal of advanced nursing, 24 (5), 1077-1082 during the discourse in exchanges between students and assessors) or provided after the event. the assessors need to maintain notes on each student’s contributions during the viva and/or can rely on the recording that has been made. on occasion, time permitting, the conclusion of the formalities has led to a further unassessed conversation about the clinical legal education more generally as most clinical programmes encourage dialogue and constructive critique. once the students have gone, the assessors then discuss the assessment and collectively allocate individual assessment marks then, or at some later stage. the organisation and conduct of the viva is admittedly time-consuming. the flip side of this is that the assessment is over and done with (possibly including feedback) in one sitting. evidence (based on student feedback – oral and in exit questionnaires) suggests that the assessment experience is viewed positively by all concerned. this may be an example of the classic case of less being more in terms of the assessment input/output discussion. on-line assessment of professional standards experiential learning has, at least until relatively recently, been predominantly face to face. there are many reasons for this and we are in no way advocating a radical overhaul of the community aspect that makes clinic so enjoyable, but it is inevitable and perhaps sensible with the advance of technology to harness the learning potential presented. there are a number of technology-based initiatives that could be mentioned here ranging from the use of recorded material which students can watch and comment on, to virtual, simulated and interactive case studies.26 it follows that if use can be made of the computer and internet to provide the source material for learning and teaching than this can also be turned into the means of assessing student (and other) performance and engagement with all aspects of their learning in clinic. we want to provide what we think is a useful, if relatively unsophisticated, example of using e-technology for the assessment of one important aspect of clinical legal education. we have found that one of the key challenges in live-client work is ensuring that the required professional standards are met. most, if not all, clinical programmes dealing with real clients will have some form of induction and training programme usually carried out in advance of the module or programme commencing. this explains to all concerned what is necessary to make the clinic run effectively and ensure compliance with professional standards. in our experience starting the first session by giving the students a hefty handbook and a set of rules can lead to many students being less than inspired, and can run the risk of the students starting the first interviews without knowing these important points as they have not had time to digest them. 26 a useful introduction to the use of e-technology in law schools in general and clinic in particular, focusing on the simple e-learning platform can be found in wilson chow and firew tiba, professional legal education reviews: too many ‘what’s, too few ‘how’s, european journal of law and technology 4 (1), 2013 one way of encouraging the students to take this seriously and to focus on the content is to assess their understanding. this could, of course, be done in a number of ways. we suggest that a simple and effective method is to introduce a multiplechoice test that the students complete on-line. this can address the relevant general rules of professional conduct as well as the operation of the specific clinic. in our example there are 10 questions (some with sub-sections) that look at issues such as conflicts of interest, client confidentiality and the supervisory arrangements within our clinic. in our particular example students can take the assessment a number of times until they achieve the 100% success rate required. the clinical staff can see, online, who has done and completed the test and the students are told they cannot progress to seeing clients until they have passed. other than the design of the exercise the resource input for the institution is minimal and the outcome at least shows that the students have had to consider key issues underpinned by the induction, training and feedback that they receive prior to and after the test is completed. although this is most obviously a summative piece of assessment with no or limited feedback we believe it adds to the overall learning experience through increasing familiarity with operational and professional rules. the submission could be marked/graded but we feel that its real value is in focusing the students’ mind on how they need to work in the clinic. we therefore make the jumping of this assessment hurdle a pre-requisite to module participation rather than a creditbearing component of the whole. assessing ourselves having considered a range of different ways to assess ‘them’ one final point we would like to address is the assessment of ‘us’. how do we evaluate our own contribution to experiential learning, and who are we evaluating this for? this topic is so rich that it could be the focus of another paper, but suffice to say here that an awareness of what we aim to achieve, what regulatory provisions we must satisfy and how we might improve what we do to enhance learning are crucial to curriculum design and review. in the clinic, where real clients are concerned, one measure of assessment is our compliance with professional standards. the operation rules should provide the framework and these need to be monitored to make sure that any relevant changes to professional practice are taken into account and disseminated to everybody working in the environment. another area of assessment is the requirement to meet the quality assurance demands of our respective institutions – be that a university teaching or planning committee, a faculty board or the eagle eye of a sceptical dean. for example the decisions we make on the assessment of students on credited modules will be subject to this institutional scrutiny. the student perspective is, of course, vital too and this may be garnered through exit questionnaires, other forms of module or programme feedback and, in the uk context, the national student survey. whilst many may doubt the true value of the latter27, our institutions take the results seriously indeed, especially as it leads to the ubiquitous league tables, by university and subject area, and therefore a ranking through which public perception is influenced.28 whatever one’s views on the content, the principle of on-going evaluation from a range of stakeholder perspectives is important if the intention is to oversee and, as necessary, fine-tune provision to extract the maximum learning potential. for us this requires a process of near continuous assessment and reflection of what we are doing in clinic and what we hope to achieve. conclusions 27 might, for example the student take on the quality of teaching provision be used at some point to inform pay awards and/or promotion? 28 for those especially interested the findings of the nss can be seen at: www.hefce.ac.uk (accessed 2 november 2015) there is an old saying: ‘pigs don’t get fat by being weighed’29 as true as this adage might be pigs may stand a better chance of weight enhancement (if that is a good thing!) if we know what pigs weigh now as we can then decide what steps to take to provide any desired addition. we have suggested in this paper that assessment is a key component to aiding learning, in part as a measuring point in the educational continuum and partly to provide feedback on how improvement can be made. whilst many of the points we make are equally relevant to all forms of educational delivery, in the context of experiential learning certain forms of assessment lend themselves to the educational process. we have explored the creation of a package of assessment types to best serve the interests and requirements of ‘us’, ‘them’ and the ‘others’. we do not consider this to be a definitive or perfect package, but we suggest that it goes some way to address some of the complications that are inherent in the assessment of learning in general and experiential learning in particular. some of us may wish that we could break away from the minutiae of summative assessment. is a script really worth 54 or 57%? more significantly, at least in a uk context, is it 69 or 70%? would a move towards a pass/fail system better facilitate learning so that less emphasis is placed on marks and grades and more on what is learnt and improving performance and understanding? in our obviously 29 for an interesting discussion and slightly contrary view see: www.societyforqualityeducation.org/index.php/blog/weighing-a-pig-does-fatten-it) (accessed 1 november 2015) competitive world should the differentiation between the students who excel and those who do not do so convincingly, be done by personal references or other form of commendation instead? we leave the discussion by re-stating the questions we set out at the start: · having set clear learning outcomes, do the means used for assessing whether they have been achieved relate specifically to each of the relevant outcomes? · are the outcomes and is the assessment regime fitting in terms of the level of the student’s study, the juncture at which the outcome is expected to be achieved and when the assessment is to be carried out? · are the outcomes and means of assessment likely to be perceived by the tutor and student as applicable to the relevant study? · can the outcomes and assessment be logistically fitted into the period of study and any assessment slot that may follow it? · does the whole have credibility for tutor and learner? in other words is there ‘buy-in’ or ownership by all concerned? we have suggested some answers to these questions for further consideration, and in the hope that less attention may eventually be spent on taking assessments and more on learning from them. project1 university law clinics and their value in undertaking client-centred law reform to provide a voice for clients’ experiences 105 1 lecturer in law, la trobe university and clinical supervisor, west heidelberg community legal service “university law clinics and their value in undertaking client-centred law reform to provide a voice for clients’ experiences” liz curran1 introduction this article examines how a clinical program can enlarge on the benefits of case work experience of enabling students by adding a course component which engages the students in identifying systemic issues in their case work which can be used to inform work on law reform issues as part of assessment in the clinical programs. the clinical program discussed in this article, demonstrates that assessment can be broadened to enable students to critique the contexts within which client issues emerge. the added component to student case work requires students to develop and use further skills in research, analysis and the evaluation of issues emerging from case work and suggest considered solutions to improve the operation of the legal system. my experience of such an approach is that it deepens students understanding not just of the law and how it is applied to their case work but also the mechanics of the law, how laws are made and how they are influenced. student lawyers also see the important role of lawyers as members of a profession in ensuring the legal system retains public confidence. a side effect of this extension of the clinical work beyond only client work, is that students become motivated and are more employable (as they leave the course not only with skills in interviewing, communicating, letter writing, applying the law and preparing court cases) with skills in policy development and submission writing. one approach to ameliorating risks created by using client experience in the law reform process is to train clinical students in a ‘client-centred’ approach. this article explains how the clinical program i supervise in west heidelberg operates uses a ‘client centred approach’ to enable client respect and control over their own case but also how such an approach can also inform students about the role and operation of the legal system in their clients’ lives. not only can the clinic play the important role in assisting clients on an individual level with their personal problems but it can also provide a fertile ground for students to undertake assessable work flowing from this case work by facilitating their examination, critique and suggestions of improvements to the legal system. the article then examines a case study of law reform work undertaken by law students and examines the impact and advantages of case-work informed law reform in generating change. the article explores the risks and obstacles in such work and how careful course design and careful supervisor facilitation can obviate these risks with increased space for structured feedback and seminar debriefs. the article then highlights some of the many benefits to the education of students and the benefits to society more broadly of such an approach and explores the role of universities in such work. there are very few academic articles in the australian context analysing and critiquing the general role or impact of law reform work undertaken by community legal centres2, the private profession, legal aid commissions or other legal services in australia, let alone by students in a clinical legal education context.3 there is significant material on specific topics where law reform submissions, changes or examinations are being undertaken, and there is some writing on institutional law reform of statutory bodies4 but not on the phenomenon of law reform itself nor the law reform undertaken by nongovernment agencies. the law reform aspect of the students’ clinical placement at the clinical program of la trobe university based at west heidelberg is very much a work in progress. at the clinic students undertake ‘real client’ casework both in criminal and civil law. the law reform work complements the client casework that the students undertake and like the placement is assessable. the clinical program and how it works will be discussed in more detail later in this article. one reason for undertaking the projects initially was an expression by the students themselves that in cases where they saw an injustice been done they felt powerless to do something about it. these comments coincided with the lament of the committee of management of the legal service about the need for more law reform activity in view of the pressing and often repetitive nature of the problems that clients were encountering.5 this article examines the client-centred approach taken to law reform that has developed. a client-centred approach to lawyering acknowledges that the client 106 journal of clinical legal education december 2007 2 j giddings, ‘casework, bloody casework’, (1992) volume 17 no. 6 alternative law journal, 261–265 and l curran making the legal system more responsive to community: a report on the impact of victorian community legal centre law reform initiatives, west heidelberg community legal centre and la trobe university(2007). 3 l curran, ‘responsive law reform initiatives by students on clinical placement at la trobe law’ (2004) volume 7 issue 2 the flinders journal of law reform, 287; l curran, ‘innovations in an australian clinical legal education program: students making a difference in generating positive change’, (december 2004) international journal of clinical legal education, 162; l curran, j dickson and m noone, ‘pushing the boundaries or preserving the status quo? designing clinical programs to teach law students a deep understanding of ethical practice’, (december 2005) international journal of clinical legal education. 4 m neave, ‘institutional law reform in australia: the past and future’, (2005) volume 23 windsor year book, access to justice, 343. 5 l curran, ‘innovations in an australian clinical legal education program: students making a difference in generating positive change’, (december 2004) international journal of clinical legal education, 162. university law clinics and their value in undertaking client-centred law reform to provide a voice for clients’ experiences 107 6 d f haynes, ‘client-centred human rights advocacy’ (2006) volume 13 clinical law review, 379. 7 l curran, j dickson and m noone, ‘pushing the boundaries or preserving the status quo? designing clinical programs to teach law students a deep understanding of ethical practice’, (december 2005) international journal of clinical legal education. 8 o’leary outlines this earlier in her article on page 336. k o’leary, clinical law offices and local social justice strategies: case selection and quality assessment as an integral part of the social justice agenda of clinics, (2005) volume 11 no.2 clinical law review, 335 9 k o’leary, clinical law offices and local social justice strategies: case selection and quality assessment as an integral part of the social justice agenda of clinics, (2005) volume 11 no.2 clinical law review, 335, 337. 10 p t hoffman, clinical scholarship and skills training, (1994) 1 clinical law review. 11 back inserted by the author of this article. owns the problem and its solution. in it the client and lawyer need to develop a case theory jointly and ensure the client is the primary decision-maker in their case.6 this article explores and forewarns other clinical programs of some of the pitfalls, experiences and significant benefits that have flowed from having a student clinical program which seeks to connect client experience to law reform activity as well as seeing students develop lawyering skills in an ethical and legally professional manner.7 at the ijcle conference in 2003, where i originally spoke about some of these activities, one of the conference participants challenged me by arguing that my proposal created too much extra work. as i stated at the time, it all depends on your teaching philosophy. by teaching philosophy i mean whether, as a teacher, you see education as merely teaching a set of skills or as extending students’ experience of lawyering by deepening their understanding of the legal system’s operation in practice, with the acquisition of skills being a part of that process. in an article examining the link between strategic planning and quality assessment in clinical law offices that are community based, o’leary argues that: in a law clinic, (in addition to providing legal services often to the poor or access to justice for a general or a specific population within a geographic region)8 there is an added agenda of determining how best to teach students skills they will need as lawyers. the clinical community has engaged energetically on the question of skills development. while there is some critical discussion about the types of work we choose in clinics, there is a paucity of dialogue about evaluating the types of work we choose or the quality of legal work performed in law clinics.9 o’leary notes that the question of whether a law clinic should engage in significant service to the community as an explicit goal is not answered the same way by all clinical law programs. some argue that service would be a minor concern, and that the teaching is of more value – neutral skills is a preferred model.10 however, many clinics developed historically as part of an explicit social justice agenda and the student practice rules generally reflected a prevailing model for students to represent poor clients in clinics that have an explicit social justice agenda (such as ours in west heidelberg),11 my experience is that the interaction between the students’ casework and their law reform involvement ‘lifts the students’ game’ and improves the general performance with the client narrative and engages the student directly in the operations of the legal system and their role as a professional in working for the public good. students become more interested in their student projects not just because they are assessable but because they can see that their work may have a positive impact in generating change. the reason for this is because if the students work when assessed is of a high enough standard, that is at an ‘a’ grade level, then it will be sent to key decision-makers identified by the student. this will be discussed in more detail later in this article. having identified a problem, investigated whether it is widespread, undertaken research, analysed the information and evaluated this material, the students see that they can link what happens in the case work to their capacity as professionals to make changes by using that experience and their skills to improve the legal system. this may involve extra work for a clinical supervisor but the enthusiasm and inspiration that the students gain from the model rubs off not only on the clinical supervisor but also on the other workers on the site of the clinical placement. the work of the students has received recognition, not only by decision-makers but also within the university itself. the university now undertakes to publish the students work in a booklet of papers and distributes these widely. this reflects the recognition by the university itself of the role of clinical legal education in underlining the university’s role in community engagement. furthermore, the feedback and encouragement that the students and myself receive from my academic colleagues who are not involved in clinical legal education has been immense. a. how the clinic works a. background to the clinic: its location and operation this section will explain the approach taken in my clinic to client interviewing and advice and how the ‘client –centred’ approach adopted in the clinic informs the law reform projects. it will outline how the la trobe law clinic at the west heidelberg community legal centre (whcls) operates and the approach taken. this approach is integral to ensuring that our law reform activities are ‘client centred’. if, as i will argue, the students select topics law reform topics based on the casework, it is my view that an approach that is taken to client interviewing should be ‘client centred’. by this i mean that it fosters within the students a deep sense of the importance of listening to and hearing the client, of ethical responsibility, and often a strong sense of conviction about assisting the client in navigating the often complex, convoluted, difficult and costly processes that the justice system entails. it is easy to cut across the clients’ narrative with the narrow technical legal approach which distils the client’s story into legal pigeonholes prematurely and does not acknowledge the context within which the legal issues of the client sits. if students take a client-centred approach to clients not only is there an atmosphere which is non-hierarchical and respectful but also it means that when students report on the problem or issues in their law reform project they are more likely to contain an authentic response to client situations. sensitivity to the balance between student and the client needs must be considered at every decision-making juncture in this process of delivering legal services and undertaking law reform based on client experiences. the clinical legal education program at the whcls enlists students in their final years of law. it is what has been described as a ‘live client clinic’, i.e. the students work on ‘real client cases’ under the supervision of a lecturer who is a qualified solicitor. the clients of the legal service are not seen in the context of a person with a technical legal problem that needs a legal solution but rather as a 108 journal of clinical legal education december 2007 university law clinics and their value in undertaking client-centred law reform to provide a voice for clients’ experiences 109 12 l curran ‘making connections: the benefits of working holistically to resolve people’s legal problems’ (2005) 12 e law – murdoch university journal of law 1&2 13 j dickson ‘25 years of clinical legal education at la trobe university’(2004) volume 29 issue 1, alternative law journal 4. 14 l curran ‘making connections: the benefits of working holistically to resolve people’s legal problems’ (2005) 12 e law – murdoch university journal of law 1&2 person with a range of issues some of which may need a legal response and other which may need a non legal solution or a referral to another professional from another discipline.12 in terms of the academic context, the clinic operates as an optional subject that is worth double the credit points of a non-compulsory subject. this is because of the time and work commitments expected from the students. since 1977, la trobe university in australia has run the clinic in partnership with the west heidelberg community legal service which is co-located with the banyule community health service.13 this relationship between the three partners enables, what i would best describe as, a holistic approach to the delivery of legal services as the clients can be referred from and to the health service which houses doctors, psychologists, occupational therapists, drug and alcohol counsellors, financial counsellors, social workers and other allied health and social welfare services. in addition, the health service can refer clients to the legal service who they identify as having legal problems.14 the legal service operates as an entity in its own right but within this, houses the student law clinic. the legal service employs a principal solicitor, a secretary and a coordinator. it is funded by the state and federal government. west heidelberg is one of the most disadvantaged postcodes in victoria australia. in recent research into social disadvantage in australia conducted in 2006, west heidelberg was included as the highest 40 ranking postcodes (out of a total of 726) of disadvantage. it ranked number twentieth in this list. this research looked at 24 indicators. the major ones included low income families, post school qualifications, disability/sickness support, early school leavers, low work skills, care and protection concerns involving children, dependency ratios and criminal convictions.15 the location and clientele of the clinic gives rise to many opportunities for students to observe how theory of the law and its operation and the practice of law intersect. it gives rise to fertile ground for students to select law reform topics as students directly witness the realities for clients of a legal system struggling to cope with disadvantage, cultural diversity and the impecunious. for the first two weeks of the clinical program, the students undergo an intensive training day and in later weeks class seminars cover an interview and communication skills program which is orientated towards the students conducting client interviews. in later weeks the course component covers issues for vulnerable and marginalized clients and human rights. as semester progresses the focus moves from skills acquisition and client contexts to a consideration of their client work in the broader contexts of how theory and practice interact. this discussion and analysis is facilitated because the clinical placement students have a two hour class seminar at the university. later in the semester, the focus of class and seminars each day at the site of the clinical placement is much broader. at this point the course is designed not only to enable students to discuss case matters but also to actively encourage students, by focussed supervisor questioning, to reflect on ethical issues emerging from case work and to consider what their clients’ legal problems signify in terms of the policy implications and the operation of the legal system. time and space are structured into each day to allow for a seminar/debrief. in the morning students have a ‘crash course’ in an area of law, see clients and then in the afternoon they do follow-up work on their files. at the end of each day there is a one hour seminar in which client cases and strategies are discussed. in addition, the clinical supervisor structures questions for students around ethical issues and the implications of their case work for the broader society. this informs both the identification of their law reform topics and enables students to discuss ideas. these sessions also allow time for students to clarify issues in their law reform projects discussing obstacles and how to overcome them and reinforcing and refining research techniques covered in earlier courses in their law degree. in addition, classes at university later in the year examine the role of law reform, law reform bodies and explores issues around presenting convincing arguments and submission writing. b. client interviewing and case-work approach as central to finding the client narrative in law reform projects. the student engagement with law reform activities is different from many clinical programs. historically, the approach arose from student feedback, imperatives of the legal service and comments from the private profession.16 because of this students have a role in identifying systemic issues emerging in their case work and areas that may be in need of law reform. this enables students to develop skills in delivering legal services to clients and to learn how to develop policy responses and construct law reform submission or write reports. for the first two weeks of the placement, the students observe client interviews conducted by the clinical supervisor. the clinic uses a non-hierarchical approach in interviewing its clients. the interview commences with a free narrative from the client, triggered by the questions such as “so how can we help you today?” the free narrative will often goes for up to five minutes. the rationale behind giving so long to the free narrative [which has proved to be successful over many years] is to make the client feel comfortable, to let them get their story off their chest, to give them a very real sense that they are being listened to and on a more pragmatic level, to ensure that matters are revealed which may not emerge in a more structured interview process which limits the discussion too quickly to the technical legal issues which are revealed.17 it is our experience that often it is the free narrative opportunity which can give the student lawyer and a clinical supervisor a sense of the client, how the client is feeling, and other matters that may be relevant in defending the case or seeking a remedy. it also enables clients to communicate their experiences and interaction with the legal system. the interview then follows the format of closed and open questioning, establishment 110 journal of clinical legal education december 2007 15 t vinson, ‘dropping of the edge: the distribution of disadvantage in australia’, (2007) jesuit social services 60–70. 16 l curran (2003) ‘innovations in an australian clinical legal education program: students making a difference in generating positive change’ (december 2004) international journal of clinical legal education, 162. 17 for a discussion of the value of narrative and client centred representation in the context of representation of clients in court cases see j mitchell, ‘narrative and client-centred representation: what is a true believer to do when his two favorite theories collide’ (1999) volume 6 no. 1 clinical law review, 85. mitchell the outlines the value of storytelling as a basic form of communication and warns against client voices been muted by the narratives that lawyers tell on their behalf. in the article mitchell stresses the importance of the lawyers chile hearing the client’s story and making a range of strategic decisions by the client with a lawyer and the student lawyers as far as possible. mitchell underlines the importance of respecting the client and providing them with voice. he notes that the lawyer’s role is to provide as much as possible this voice as authentically as it has been given and through a process of filtering through the interpretive biases of a lawyer, 102. university law clinics and their value in undertaking client-centred law reform to provide a voice for clients’ experiences 111 18 a chay and j smith, ‘approaching legal interviewing’, legal interviewing in practice, law book company, 1996, ch, 1, 13–21. 19 b wolski, ‘client interviewing’, legal skills: a practical guide for students, thompson, 2006, ch 2, 59–124. of facts and issues, concept checking [that is checking understandings are correct] and seeking clarification around what it is that the client wants.18 for the first two weeks of clinic the students are mere observers of the lawyering styles of the clinical supervisor and other lawyers at the placement site. this means that they observe the clinical supervisor going through the stages of the interview outlined above but also explaining in nontechnical legal language the range of options available to the client by way of legal advice and the legal processes that might be involved in their case. the clinical supervisor will clarify what the client’s expectations might be, explain what will happen next, and what the lawyer will do by way of the follow-up work. the client is then asked if they have any questions.19 in the model of student lawyering adopted at la trobe university, when it comes time for the student to conduct the client interview on their own, the student will meet the client at reception, take them to the interview room using some icebreaking questions and conversation to build rapport. once in the interview room the student lawyer will then take the free narrative, clarify the story with questions, seek understandings, concept check and clarify the key issues with the client thus adopting a client-centred approach to lawyering. the student leaves the room briefly and takes a seat in the clinical superviser’s office. the door is shut and the student lawyer quietly explains the facts, the issues and the client’s concerns to the clinical supervisor. the clinical supervisor will then ask for any clarification. this may mean the student has to go in and check these answers with the client before legal advice is given. the clinical supervisor and the student will then explore the legal and non legal options available to the client. this will include an exploration as to whether or not the client may be able to access support in relation to their non legal issues from the health service where the legal service is colocated or whether there are any other supports that can be offered to the client by way of educational opportunities, work and training. the legal options are detailed by the student in their notes. the supervisor watches very closely as she explains the legal advice in consultation with the student to ensure that what is written down accords with the legal advice to be given. experience has taught the author that, it is critically important to ensure that the student understands the legal advice and that they record what is needed to be conveyed to the client in a step-by-step format. in the state of victoria, it is an offence under the legal profession act 2005 for a person who does not hold a solicitor’s practicing certificate to give legal advice. it is therefore critical to ensure that any legal advice given to the client is accurate. it is stressed to the students that the client will be taking action and making decisions on the basis of this advice. when the student returns, on their own, to provide legal advice to the client they are required to give the client opportunities to respond to the advice and note any concerns or preferred options. leaving it to the student to deliver the legal advice to the client unaccompanied by the clinical supervisor is a risk that needs to be carefully managed. this is achieved by students writing down the legal options and advice given by the supervising solicitor, the students’ repeating the advice in their own words to concept check that they understand the advice. at la trobe university, we are firmly of the view, that if the clinical supervisor were to give the legal advice directly to the client after the student has done the initial interview, this removes confidence of the client in the student and undermines the students’ capacity to take responsibility for the advice that they give. it is my experience, that this approach reassures the client that the student has matters under control, progresses their relationship and places high expectations on the student about the importance of giving the right legal advice this means the students develop a strong sense of commitment and conviction as well as assuming professional responsibility for the file. in the context of their selection of a law reform project it means that students have a deeper understanding of client contexts, and their responsibilities in accurately identifying and selecting issues they will draw on for their law reform project. regular client feedback that is given to the legal service is that clients have confidence in the students, that the students are often the first person who was listened to the client, who may have previously been silenced or turned away. what the students lack in experience, they make up for in their preparedness to work hard for the client, driven by their enthusiasm for the client’s case. however, the student lawyers also have the opportunity of seeing a different lawyering style. as part of the observation process they will the principal solicitor of the legal service as well. the principal solicitor has a more hierarchical approach to lawyering than the clinical supervisor. it is our view that this is invaluable as it exposes students to more than one approach. ultimately, although the non-hierarchical approach is preferred as a model for client interviewing, the students can make up their own minds as to the model they prefer when they enter practice. there is always a need for flexibility in the lawyering approach given the variety of clients that students may need to deal with. for instance, students encounter clients who may be both aggressive and rambling, and would not allow them an opportunity to get the key facts or to give the advice that the client is seeking. in one example this occurred where the client was in fact in the midst of a psychotic episode. clearly, in such a situation the student lawyer needs to be able to adapt their lawyering approach to fit with the client and their circumstances. in that situation the student also had to be in a position to recognise that instructions should only be given when the client fully understood the actual instructions they were giving and when they were able to make a decision that was informed. a state of psychosis or a drug induced state are clearly not indicators of this. issues around capacity to give instructions, where a client is clearly having difficulty, are a good example of the reasons why there is a need for insight, for non-judgmental approaches and for clarity about what is actually taking place in the interview room.20 duncan has noted, profound opportunities to recognize the impact of ethical dilemmas arise in real client clinical situations. he notes that clinic can provide the most powerful experience of the real context within which the law operates.21 the latter also provides a sound reason as to why the student observations about how the law impacts upon their clients might be extended to a law reform context. 112 journal of clinical legal education december 2007 20 as a result of this particular experience one past student wrote her law reform assignment issues of capacity and training for lawyers dealing with clients with an intellectual disability. this was published and has been used by law associations. 21 n duncan, ‘ethical practice and clinical legal education, (august 2005) international journal of clinical legal education, 7, 13 and 19. university law clinics and their value in undertaking client-centred law reform to provide a voice for clients’ experiences 113 22 d shah, ‘lawyering for empowerment: community development and social change’, (1999) volume 6 no.1, clinical law review 217–257. 23 d f haynes, ‘client-centred human rights advocacy’ (2006) volume 13 clinical law review, 379. 24 p lynch, 'human rights lawyering for people experiencing homelessness' (2004) volume 10 no. 2 australian journal of human rights, 59 and c parker, ‘the logic of professionalism: stages of domination in legal service delivery to the disadvantaged’ (1994) volume 22 no.2, international journal of the sociology of law, june, 145-167. 25 d f haynes, ‘client-centred human rights advocacy’ (2006) vol. 13 clinical law review, 379 and see comments attributed to the australian attorney general mr philip ruddock, the australian, 2 october 2006. 26 j mitchell, ‘narrative and client centred representation: what is a true believer to do when his two favorite theories collide’, vol. 6 no. 1 (1999) clinical law review, 85, 103. c. why client interviewing and law reform activities should interact shah has highlighted the problems where community development approaches are taken to address structural issues when they are removed from the experiences of the people on the ground.22 shah’s article, although it promotes greater involvement by lawyers with community based organisations to promote social change, does also convey some of its limits. shah highlights the danger when governments and industry can increasingly hold disadvantaged groups or victims as to blame for their own situation. however, often the lack of effective involvement, integration and empowerment of the core community in the measures designed to improve their conditions is problematic. for this reason it is important that, in addition to shah’s encouragement of lawyers to engage more constructively and collaboratively with community organisations, this should never displace the client experience and client narratives should form part of the law reform work undertaken. if clients are not permitted within a lawyer-client relationship to provide the context of their situation, then this failure creates a disconnect. too often by removing themselves from grassroots experience and trying to advocate for people, well meaning people can impose their own impressions and views on what is occurring on the ground. this can make it easy for policymakers to ignore the clients’ experience and the impact of the law upon them.23 often what has resonance in many debates, is the telling of the clients’ stories.24 this can often make it more difficult for decision-makers to dismiss the advocates as being ill informed or ‘party politically motivated.’25 in the context of the representation of clients in court, mitchell notes that allowing the client to tell a story and actually hearing it is a concept that is quite nuanced: it incorporates a constellation of ideas. listen to the client’s story. hear what they want. try to be creative about ways to tell the story. look for opportunities to bring their story into the legal process. at the same time, join together to discuss any risks and problems which may result from various strategic choices including the risks in even telling the story and whether those risks are worth it to the client. this is a balance which students at the clinical placement in my program try to achieve.26 d. the importance of ensuring ample opportunities for student feedback and reflection in the course design as has been noted above, in addition to self appraisals between the students and their supervisor and the completion of a journal reflections on student lawyering, the students at the whcls clinic have a one hour debrief/seminar at the end of each clinical day. in this seminar students go through the facts, issues and law of their case, brainstorm other options and share insights about the client experience, their role as lawyers and the reality of the operation of the legal system. some clinical programs in their feedback and reflections focus only on client file work and lawyering, however we believe that our approach to feedback and reflection broadens the students’ awareness beyond the exigencies of their day to day practice and enables space for group analysis and evaluation of the variations between practice and theory. the discussion in the seminar often includes analysis of the issues confronting clients and the realities of the practical operations of the legal system and how it interacts with the community. back in the seminar at university on the following monday, the students critique their practical experience of the legal system at clinic, looking at how it relates to the theoretical material that is contained within their readings for university. it is this environment and approach to teaching clinic which inspires the students when it comes to selecting their topics for a law reform project. in addition, time is spent in these discussions underlining the importance of perspective, the importance of credible well researched and articulated positions. these discussions help to ensure that students avoid personal supposition and bias in their law reform assignments since they come to see that if they wish to influence decision-makers then emotive and unsupported assertions will hold little weight. as students consider the need to influence decision-makers as the imperative, their work tends to have a superior quality than work that is purely prepared for a university assessor. this has meant that decision-makers respond favorably to the student work both to encourage students to participate in public life but also because the work is of a high calibre. from the students’ perspective, they can use the acknowledgements of their work by decision-makers or media and the experience of submission writing in their resumes as they apply for jobs. o’leary has noted the value of opportunities for feedback and reflection: moreover, my experiences have led me to conclude that when reflection and feedback become part of the office culture, clinic faculty, staff and students feel more connected to the enterprise of teaching, learning and social justice lawyering, they’re more connected to a team, and feel even better about their work. i would add that such opportunities for feedback and reflection by the students both in their teams on placement and individually with the clinical supervisor add a depth to their analysis and evaluation of any given problem. such discussion and reflection means the student lawyer can see the problem and the issues from a range of different perspectives. they have to answer queries and questions from team members and the clinical supervisor about their approach to the client. discussion of the client’s problem (with legal professional privilege operating) can also be very challenging to the individual student, as their team can flush out the students own prejudices and any judgmental elements which often sees the students having to justify and reflect on their own biases. the process of feedback and reflection needs to be given additional time but the ability of students to relate the specifics of their case work to the broader societal implications is transformative. students have to articulate the issues and relevant law and unpack interactions with 114 journal of clinical legal education december 2007 university law clinics and their value in undertaking client-centred law reform to provide a voice for clients’ experiences 115 the client, contextualise the problems and comment on the client’s situation. e. the law reform project – selection of topics and process the students identify the law reform project not by some random examination of the internet for a topic that inspires them or by their lecturer providing them with set essay topics but rather, they select areas of interest that are generally based on their own observations of how the legal system impacts upon the client. in addition, students whilst on clinical placement and while still exploring which topics they will select, will have discussions with professionals at the health and legal service to gain a sense of whether or not the students’ client experience is a common one and how widespread it is in the west heidelberg community and beyond. after this process, a topic is selected in consultation with the lawyers at the legal service. in the law reform projects clients are anonymised and steps are taken to guard against the risk of any breach of confidentiality. many client matters are also resolved before the law reform project is completed. students undertake further research to identify whether client experiences that reflect problematic responses by the legal system are widespread. if their research reveals that it is widespread then students undertake literature reviews, collate similar case histories and identify what needs to occur if the problem is to be rectified. this means that the law reform activity emerges directly from client experiences but confidentiality is preserved. the model of interviewing clients which enables scope for the free narrative and a respectful environment means that there is a capacity for more of the issues to emerge that have impacted upon clients’ lives and choices. there is also a capacity to identify trends in case-work and cases where the same problems have re-occurred. with the university framework for the clinic, the emphasis on legal research also means that there is an expectation that the students will examine relevant literature, reports, research and engage with the other professionals at the site of the clinical placement to learn of the factors which affect any problem and how it might be resolved. the students are required to investigate the problem or issue of law reform that they have selected. sometimes, it may not involve a change to the law but rather a retention of the law or its refinement. the students also see this as an opportunity to give a ‘voice’ to their clients. it is very important as a clinical supervisor and law lecturer to guide and explain to students the dangers of stereotyping, pre-judgment and the need to ensure balanced and evidence based critiquing. originally, the students undertook their projects in teams. this has changed as it became too unwieldy for the supervisor to manage both in terms of the ethics approval process (discussed later in this article) and some of the student dynamics which occurred. the law reform project is now conducted on an individual rather than team basis. even so, as the students undertake the clinical placement in teams of four, i find the students help each other out with materials that are relevant to each other’s projects. in the new law reform model, students are required to complete a background research paper of 2,500 words on their law reform topic and submit a 500 word letter to a decision-maker summarising the issues. this is submitted and marked in the same way as a normal piece of university against pre-set criteria discussed later in this article. a student who achieves an ‘a ‘grade and whose work is of ‘sufficiently high enough standard’ will have their background paper and letter sent to decision-makers. sometimes, to have a significant impact, the students’ work may be disseminated more widely. the student is required by e-mail to consent to any suggested ‘tracked changes’ inserted by the clinical supervisor and to consent to the publication of their project. f. the assessment process for the law reform projects in la trobe university’s clinical program at the whcls, the students are assessed as follows: • placement 45% • class participation 5% • class presentation on ethics 5% • client report 15% • law reform project 30% in many university connected clinics the student has to submit an assignment for the assessment, in addition to receiving a grading for their actual performance on placement. often students on reaching the final years of law school are tired and bored with their studies and cannot see the connection between what they do at university in their law school and its relevance to practice. in addition, they often have the experience of submitting assignments which are seen by only one person and are graded without further review. in my experience, by turning the assessment into a project which is assessed as a normal piece of university work but with the possibility that it might (if of sufficient quality) be disseminated to decision-makers, this makes the students ensure that their arguments are coherent and constructive. realising that they may have the ability to inform or change the laws and policy means the students work to a much higher standard than that which would normally be the case. the students ‘lift their game’. by linking their assignment to a real life problem where the student may be able to convey client experience inspires students to perform and what they learn through this process is significant. students are given time at clinic to work on their project as well as their client work. nowadays often publication of the students’ individual law reform projects also occurs again in a glossy form of occasional papers produced by the university itself. this is sent to a very extensive range of organisations which include the members of parliament, educational institutions including the council for legal education, the law societies around the country, non-government organisations, social welfare and health organisations as may be relevant, media outlets, members of the judiciary and community groups and to the clients who may have requested a copy in the course of the law reform project. this reflects a new recognition by university of the important role of clinical legal education in the context of the broader society and for the university itself. b. the value of the client-centred law reform approach a. the client-centred approach in conducting the law reform project and how risks can be minimised a challenge for students is that often they need to regulate the passionate conviction about the client’s experience and their own sense of injustice about it. the students’ training means they seek to give expression to the client’s voice but in a credible way so that decision-makers will not ignore it or dismiss it. this means they have to think through their strategy and how it can meet these two 116 journal of clinical legal education december 2007 university law clinics and their value in undertaking client-centred law reform to provide a voice for clients’ experiences 117 27 k o’leary, clinical law offices and local social justice strategies: case selection and quality assessment as an integral part of the social justice agenda of clinics, (2005) volume 11 no.2 clinical law review, 335, 339. 28 l f smith, ‘why clinical programs should embrace civic engagement, service learning and community based research’, (2004) volume 10, clinical law review, spring, 723. 29 c weng, multi-cultural lawyering: teaching psychology to develop cultural self awareness, vol. 11, no.2 (2005) clinical law review, 369. 30 c weng, op cit at 371. 31 c weng, op cit at 373–376. ends whilst at the same keeping the clients’ integrity. this is an important lesson for students as often their rage or zeal could undermine the actual client voice. it is important therefore as the clinical supervisor/lecture to carefully outline the dangers involved in not yet fully thinking through the issue, what they want to say and how to say it. i fully agree with o’leary’s comment that: it is in the interest of a clinical law office and its students, faculty, staff and clients to regularly and systematically set program goals and then assess whether the goals are achieved as well as whether the goals are right in light of social justice objectives. the needs of both client groups and students will change over time, therefore the goals of the program must change over time.27 much of the literature around client-centred lawyering highlights the dangers of paternalism, destruction of the voice of the client, and the dangers of imposing a culturally laden middle class spin on a problem which does not do justice to the client or the issue.28 weng has observed that the human reality is that people react differently to people who may be different from them.29 weng notes that culturally insensitive and discriminatory responses may be unconscious30 and argues that it is therefore important for a lawyer to receive multi-cultural training raising their awareness as to how their own culture can influence the manner in which they approach clients of a different culture so as to guard against judgmental practice. in the article, weng states that such self awareness is important in mitigating against inappropriate conclusions by a student lawyer. weng states that being involved in real life examples of how unconscious categorisation can affect behavior and cultural self awareness can enable more accurate, clientcentred lawyering.31 cultural training and self awareness are integrated into the teaching program of the clinic at whcls. often students on clinical placement at west heidelberg have to deal first hand with police, housing workers and social workers who proclaim that the reason for our clients’ dilemma is because of the cultural grouping they belong to and their different ways. when these are used as justifications for different treatment, our student lawyers very quickly become aware of the dangers of stereotyping. i do not claim that the student law reform projects are the easy to guide or to supervise. extensive thought must be given to the design of the clinical teaching program to ensure that where students are representing clients from disadvantaged backgrounds and cultures that are different to their own, there is scope in the course design for students to learn about different cultures and causes of disadvantage and its impacts. b. students truly challenged the reality is that many of our students come from middle class backgrounds and have never been exposed to the issues that confront our clients before. this can be extremely personally challenging for many of the students. again, the opportunities for daily de-briefs and discussions which are structured into the course’s design are important, as well as the availability of counselling for students at the university. these are also elements of student care. yet, it is the students’ exposure to the variations in treatment of the different clients by the legal and social welfare system; the clientcentered approach taken to interviewing clients and in the follow-up work on the client’s case that enables a transformative process to occur for students. the students become aware of the structural impediments confronting clients in many of the cases. it is important that the students’ law reform projects allow space for the freshness of student ideas. these must be refined so that sophisticated suggestions or recommendations ensure that the project will be well received. a combination student freshness and carefully constructed argument can lend the projects a uniqueness that other law reform submissions by other organisations who are more cynical and world weary can lack. it is this commitment to client and the consequential desire of the student to improve the justice system for future clients that generates in the students the desire to influence decision-makers.. sometimes, they are so keen and motivated that we need to remind them of their other commitments in their other law subjects. as one student stated: i had gotten so far in my law degree that i had begun to wonder whether this was all for me and whether i had just wasted my time. i thought that i would be hopeless with clients. the clinic came just at the right time. i now see the relevance of my degree. i’m not as hopeless with clients as i thought i would be and i also see through the law reform project that with my training and my education, i can have a role in improving the justice system.32 it is rare in the clinical legal education program at la trobe university in west heidelberg that we have to deal with lazy students or students who don’t take responsibility for the client work. it is my view, that the reason for this is the combination of the client-centred lawyering approach we adopt in casework and the opportunity that the students are given to make a difference through the law reform projects. c. some examples of the impact of law students’ law reform work in terms of the impact of the students’ law reform projects in moving the operation of the justice system for clients there is evidence that this has occurred. the students by articulating the problems can explain the experiences of the clients (which would otherwise not have been exposed), examine the issues and arguments on both sides for change and based on this work make suggestions for improvements. examples of the impact of the students’ work include: 1. the decision to locate a new specialist family violence court at the heidelberg court following a student report outlining problems for victims of domestic violence based on their experience at the west heidelberg community legal service. a representative from the department of justice’s court services division advised that were it not for the timely arrival of the students report the court may have been located elsewhere. in addition, many of the students’ recommendations on the need for linked up services to support victims of domestic violence and greater powers for the magistrate in dealing with perpetrators of 118 journal of clinical legal education december 2007 32 clinical legal education student e-mail, 2006. violence were adopted in new legislation in 2004. 2. a request by the australian representative body for counsellors to publish the students’ guidelines for counsellors in dealing ethically and lawfully with care and protection cases for children. the agency asked if the student could do further paid on the guidelines for counsellors. 3. considerable media coverage and interest in the issue of mobile phone debt and its impact upon young people. within 24 hours of the release of the report there were 84 media contacts made and 22 interviews conducted with media outlets. this included coverage on national television and radio current affairs,as well as coverage of the issue on the bbc and in a new zealand daily newspaper. although the report is now three years old the last media enquiry in relation to this report was on 28 june 2007. 4. the adoption of some of the students’ recommendations on how to assist self-represented litigants in the magistrate’s court forms part of the court’s strategic plan for the next ten years. d. a case study of a law reform project undertaken by clinical students case study: the somali project: crossing the cultural divide i. client input: the students had cases involving a number of somali clients. the clients had come to the legal service to seek help in a range of legal issues. these included the non-payment of parking fines, issues around how they were dealt with by the police in relation to a lack of support in applications for protection from domestic violence, criminal matters, debt matters, financial problems, matters pertaining to immigration status, social security entitlements and matters in which they alleged discrimination in the treatment by government officials. the latter were in the areas of housing and the care and protection of children. ii. problem identification: as stated, opportunities for student reflection and analysis of the days events occur in a number of ways firstly through the student debrief at the end of the day with their teams on placement (of four students), in class on the following monday as part of the larger group (of twelve students) and more personally in their own reflective journals which they are required to keep for supervisor monitoring of their progress. these discussions enable opportunities for students to share their client experiences and compare any commonalities or trends in what they had observed. in this case, the students identified that a number of the somali clients that they had interviewed had very little understanding of the australian legal system, its laws, procedures and processes and yet these clients were still subject to these laws procedures and processes. one example was a case which involved a somali client who wanted to challenge a parking fine on the basis that there was a street with a curb and therefore he should be allowed to park there. this client said the parking university law clinics and their value in undertaking client-centred law reform to provide a voice for clients’ experiences 119 fine was unlawful as it was clearly a parking space. he did not understand that signs limiting parking and parking restrictions imposed by the local council gave them the authority to fine someone if these restrictions were ignored. the client insisted on challenging the fine and subsequently lost his case when he asked for it to be referred to open court. the student had tried to explain to the client his legal position but the client could not understand the concept of a council being able to impose fines. in another case, the student’s client had been assaulted at a function in front of other members of the somali community. the police knew the identity of the man. the client was seeking the legal services assistance with a claim as a victim of crime under state legislation. a precondition for her claim was that the police had to make a report and take a statement. despite numerous requests to the police by the client and the witnesses, the police had failed take statements or press criminal charges. the student lawyer intervened on the client’s behalf to make the police take action. this intervention led to improved responsiveness by the police. the student also investigated the making of a formal complaint against police on behalf of the client by conducting research into the police complaints mechanisms and the possibility of a complaint through the equal opportunity commission in victoria. in the end, the client’s instructions were not to proceed with any complaint against police about their inaction and some racist comments as any such complaint would be investigated by the police. she indicated that her own experience in somalia with police had been terrifying and that she would rather forget about it. the client also communicated to the student lawyer how disappointed she was with the legal system as it had failed to protect her. the student heeded the client’s instructions. there were many other instances in the student client casework that gave rise to the concerns about the treatment of somali people. the students in one placement group on a wednesday decided that they would talk to other service providers including the principal solicitor of the legal service and the health service about their experiences of how somalian clients were treated. the students decided that there was a definite trend. issues emerging included a lack of understanding of the systems that operated, expectations of the community placed on them by government agencies; the lack of any understanding by both the somalian community about these expectations and a lack of awareness by agencies of the background, cultural experiences and struggles of somali population in west heidelberg. iii. fact finding the students did some demographic research in relation to the numbers of somalian people in west heidelberg and surrounding districts examined why the somalian people came to the district and the numbers in private and public rental as well as conducting research into the experiences of somali people as new arrivals. having gathered this information, the students were keen for the legal service to conduct a community legal education forum with members of the somali community with a view to explaining their legal rights and responsibilities insofar as the australian legal system was concerned. the legal service held this forum. the clinical supervisor asked students to develop a plan as to how the forum would progress and to devise the questions that might be asked. as the students had never conducted a public meeting before this was a real challenge for them. the supervisor had to remind students to provide ample opportunity, in the design of the forum, for the some the 120 journal of clinical legal education december 2007 somali community to explain their experiences (by way of narratives and stories) of the legal system in order to obtain the somalian perspectives. i suggested to the students that they might need to prepare some prompts to stimulate discussion and form ideas as to how to earn the trust of the community before we commenced proceeding so at the forum. in my own research into legal services i knew that clients do not necessarily know how to identify what is a legal problem and indicated that this might be issue.33 therefore, the students had to make suggestions and devise scenarios and ask the somali community to respond on the basis of their own experience. these scenarios, i indicated, could be based on the existing experience of the students with the own client base. in organising the public meeting/forum with the somali community, i suggested that the students liaise closely with the somali worker at the health service and take guidance from her around the agenda for the meeting as well as how to approach the somali community. most of the students in the wednesday’s group had already had contact with the somali worker through the casework and so had a positive relationship with her. the students took advice from her on how to advertise the meeting and ensure a representative attendance by the somali community. this involved the somali worker explaining to various people in her community the purpose of the meeting and its agenda and what it sought to achieve. it was also important to be clear about what the somali community might get out of the meeting in terms of better understanding the legal system and by blocking out appointments at the legal service if they needed legal advice on individual issues that emerged from the forum. the forum initially was fairly quiet but as it progressed community members were very vocal about their experiences and understandings of the legal system. the forum revealed a fundamental lack of understanding of how the legal system in australia operated including the role of police and the state and the independent role of a lawyer. the members of the community knew little about the role of lawyers and expressed unrealistic expectations of a legal representative for example, the role of a lawyer was to ‘get them off ’ at any cost. this explained many of the misunderstandings that has arisen in client casework and was able to inform the legal service about how it could better offer its services to this community. at the forum the role of police, lawyers and the courts had to be clearly outlined as there was significant misunderstanding. for example, notions of legal professional privilege were unfamiliar. clients revealed a concern about telling their lawyer the truth about their experiences for fear their lawyer would reveal them to police. clients also revealed a lack of understanding of the importance of the presentation of evidence in court cases and the role of judges as independent assessors of that evidence in making the final decision. although the students only observed the meeting and did not actively participate in the meeting (due to the problems with ethics approval mentioned earlier) they did have critical input into the agenda for the meeting and liaising with relevant people as to how to conduct the forum. the meeting was facilitated by the somali worker, the clinical supervisor of the students/lawyer and the principal solicitor of the legal service. what emerged, based on the clients’ narratives was a picture of frustration, a lack of understanding both of the somali community and the legal system, and a range of assumptions about their knowledge of the legal system. what also emerged were some concerning experiences by the participants in the forum about their treatment by various personnel which they believed was often based on their race. the legal service university law clinics and their value in undertaking client-centred law reform to provide a voice for clients’ experiences 121 33 l curran & m noone ‘the challenge of defining unmet legal need’ (2007) volume 21 journal of law and social policy 63. staff tried to explain in simple terms the manner in which the legal system operated and the various agencies that worked within it and their role. the participants of the forum asked for a further forum to discuss the issues. this occurred in the following year and follow up on individual cases was facilitated with block legal interviews being made available. the community members present were aware before attending the forum that the students would be observing and that they were working on a law reform project about the somali and community and the australian legal system. they were aware that any material used by the students emerging from the forum would not identify any person at the forum. at the conclusion of the meeting, each participant was again asked if they consented to the students raising in general terms the experience of their community in a report with their confidentiality protected. the students did considerable research and talked to many service providers before they commenced drafting their law reform project. they also had their own experience with clients and the experiences of the clinical supervisor and the principal solicitor to inform them about some of the issues that confront somali clients. they had also learned a lot about somalia and the experiences of the somali community firsthand at the forum. as an elder of the somali community is also based at the health service they consulted with him a draft of the report. each chapter was written by an individual student who selected an area that was of interest to them or that had been inspired by their own client experience. the chapters included a chapter on housing, domestic violence and one by way of background about the reasons for somalians seeking refuge in australia, on the levels of knowledge of the legal system and the final chapter on the need for improvements in information provided to the somali community. the report, which was a team project was researched, written and compiled by the students and submitted as an assignment. the students received an individual grade as they each wrote a separate chapter. it was received by the law school office as a normal piece of student work. it was then graded. once a decision was made that the report would be published, the draft report was submitted for consideration and final input from members of the somali community and the committee of management of the legal service. in this way, the community’s representatives were able to check for any misrepresentations or errors. the clinical supervisor edited the work, compiling it, formatting it and printing it and sending it about according to the mailing list suggested by the students. iv. how the somali report was received in the public domain and its impact the report was extensively covered in local media in australia. this included the west heidelberg area, the major metropolitan daily newspaper and also a national newspaper. it was also discussed on community radio. various government and parliamentary decision-makers said that they found the report informative and helpful in terms of understanding the obstacles confronting the newlyarrived australians from the somalian region. one important positive outcome from the report was an indication by a senior member of the management of the state government’s office of housing in victoria, that the minister for housing of the time, had sent a directive, based on the students report, to the department to improve the cultural protocols in how the departmental officials dealt with people from the somali and community and newly-arrived communities. a detailed letter from the director of housing was forwarded to the legal service outlining office of housing policy and suggested changes to that policy and thanking students for their contribution to this debate. 122 journal of clinical legal education december 2007 one of the unfortunate and unintended outcomes of the report was that certain representations made in the report about the need for an improved knowledge of how the legal system operates through improved community legal education and community development opportunities were manipulated and reinterpreted. the report was used by the federal government of the time to justify the introduction of a citizenship test. this citizenship test has caused widespread concern in the australian community particularly in the migrant community. ironically, many people born and bred in australia would not themselves be able to answer many of the questions contained in the citizenship test. although the students’ project was written and published in 2004, the project continues to inform a range of different decision makers. recently, a supervising magistrate at a magistrates court requested the number of copies of the report to circulate to her magistracy so as to improve understandings of cultural contexts when the court was dealing with domestic violence cases. the report has also prompted the west heidelberg community legal service, after a discussion with the somali worker and program manager of the community health service to apply as a client to an organisation called the public interest law clearinghouse34 on the legal merit of taking an action on behalf of the somali community in relation to the failure by government to provide affordable accessible and appropriate housing for members of the somalian community. we will keep the somalian community informed of any progress and have received a memorandum of advice from queens counsel. we would not commit to any further course of action without properly consulting the individuals and members of the somalian community for their instructions. counsel’s opinion may be useful in applying pressure on a policy-makers into the future. again, any such action would be done after seeking advice from somalia community itself. this process emerged wholly because of the law students’ identification of the problems with housing in the somali community. e. the reasons why clinical programs are ideally placed to add capacity to organisational law reform in 1992, giddings described how legal centres use casework to achieve a range of legal and social changes. he stressed that their work in this area is not unconnected to individual cases which inform the processes that lead to the law reform activity.35 he observed that the community legal centre (clc) work is not very often at superior court level but is more often directed at grass roots cases. giddings stated that “casework needs to be viewed as only one mechanism which may assist clcs in achieving their objectives.”36 giddings reflected that it is the casework of clcs that is attractive to funders, but argued that casework can be structured in such a way as to “stretch the university law clinics and their value in undertaking client-centred law reform to provide a voice for clients’ experiences 123 34 the public interest law clearing centre (pilch) is a community legal centre which takes applications where a matter is in the public interest, and the matches legal matter with a law firm or a barrister on a pro bono basis. interestingly, this legal centre runs the secretariat made up of administrators and solicitors that can either take on case themselves by acting as instructing solicitors or match the case with pro bono lawyers. they also have a membership which involves law firms and barristers paying a membership fee to provide their services for free to clients in public interest law cases. the list of barristers is now quite extensive. this legal service has grown in size and has conducted significant test cases in the state of victoria and australia wide. it now also houses a homelessness law clinic and a human rights law centre. 35 j giddings, ‘casework, bloody case-work’ (1992) volume 17 no. 6 alternative law journal, 261–265. 36 ibid, 261. benefits beyond the individual assisted.”37 such benefit sharing, he stated, include changing existing interpretations of particular laws, amendments of statutes, maintaining or increasing the accountability of groups or individuals in positions of power and/or changing the practices adopted by particular industries. giddings also examined a series of test cases that clcs had been involved in: housing in 198238, credit in 198939, violence against women and children (vawc) in 199140, employment in 199141 and police42 in 1989. giddings stated that often clcs do the work neglected by the private profession as clients do not have the capacity to pay for a private lawyer. he observedthat therefore, clcs often represent groups in the community who traditionally have little opportunity to exert their legal rights. he argued that change can be bought about not only by challenges in the courts (which is often not a feasible opportunity for impecunious clients or clcs) but through improving the process to make it more just.43 he noted that collectively legal centres through their casework have been able to identify trends and respond. similarly, schetzer also observed that the state has limited capacity to respond to those who are disadvantaged and that community legal centres (and implicitly clinical programs) are well placed to ensure that feedback on policies and how they operate on the ground is provided to governments.44 124 journal of clinical legal education december 2007 37 ibid, 261. 38 the clcs in a case secured the release from prison of squatters, see m noone and others, ‘bona vista: a large attractive property’ (1983) volume 8 no.6, legal service bulletin, 152–157, ministry of consumer affairs, annual report, 1991, 43. 39 in 1989, hfc financial services was taken to court by clcs and financial counsellors for failing to comply with certain conditions in their dealings with clients. hfc financial services was ordered by the victoria court of appeal to pay over 3 million dollars to a fund to establish the consumer law centre. as a consequence of this case, credit providers licenses would only be provided in future where certain conditions were met that protected consumers. j giddings, ‘casework, bloody casework’(1992) volume 17 no. 6 alternative law journal, 261, 262. 40 in 1991 the women’s legal resource group in queensland gave support to a woman charged with murder after 22 years of domestic violence against her by her partner. in the queensland supreme court she was found not guilty on the basis of self defence. j giddings, ‘casework, bloody casework’, volume 17 no. 6 alternative law journal, 26, 262. 41 the public interest advocacy centre (piac) was involved in a high court case, australian iron and steel v banovic (1989) eoc 92–271. in this case by a 3-2 majority the high court upheld the claims of eight women over their retrenchment as it was deemed to be discriminatory. j giddings, ‘casework, bloody casework’, (1992) volume 17 no. 6 alternative law journal, 261, 262. 42 giddings notes that clcs were granted standing to appear in coronial inquiries into police shootings. this recognised that they had something worthwhile to submit. he also notes that concern about the treatment by police of young people led to the establishment of ’ alphaline’ by the fitzroy legal service. this was a twenty-four hour telephone advice line for young people facing police questioning which received funding. j giddings, ‘casework, bloody casework’(1992) volume 17 no. 6 alternative law journal, 261, 263. 43 j giddings, ‘casework, bloody casework’ (1992) volume 17 no. 6 alternative law journal, 261 and l curran, ‘making the legal system more responsive to community: a report on the impact of victorian community legal centre law reform initiatives’, west heidelberg community legal service, june 2007. 44 l schetzer, ‘community legal centres: resilience and diversity in the face of a changing policy environment’, (1992) volume 31 no.3 alternative law journal 159. c. some of the pitfalls and solutions a. problems with the ethics approval process for students one of the difficulties encountered in the first four years of the conduct of the law reform project at la trobe university was the overly bureaucratic ethics approval process at the university that the students were required to undertake. any research, involving human participants required ethics approval from the university. when we first conducted the projects during 2002–2003, when the students were going to interview an ‘expert in the field’ ethics approval was not required. this meant that students were able to go in the interview people who were psychologists, lawyers, scientists and so on depending on the relevance to the project. this changed in 2003 with students being required to gain ethics approval for any request for interviews or consultations with people. students can request information that was publicly available but cannot directly interview of the clients or the workers without ethics approval in the conduct of research. this change did not effect students conducting interviews and seeking information as part of the client-casework on placement but related to when students wanted to research by interview the experts relevant to their research for the law reform project. since this change, there has been an effect, to a certain degree, on the level to which the students’ law reform projects can remain ‘client-centred’. whilst fully understanding the importance of appropriate ethics protection for human participants in research, the process was unsuited to the student research in that it was unduly bureaucratic and often not timely. initially, the ethics approval process required the students to complete a 40 page application form. the forms did not relate to sociolegal research practices but were more akin to a medical science research. for example, questions included the measures that were to be taken if the students were to conduct electroconvulsive shock therapy and the taking of tissue samples. the process would often take a long time to get approval leaving little time for the students to conduct interviews, and write up for the results in time for assessment. as clinical supervisor and law lecturer, i liaised with the various university personnel and instrumentalities that were in charge of the ethics approval process to try to streamline the ethics approval process so that it was simpler for students but so that it still provided ethical protection for human participants. i have tried to make the ethics approval process more relevant to sociolegal research rather than as it was, based on a medical research and experimentation model. in the end, the energy that this took and the stonewalling by those within the central bureaucracy proved difficult and i decided that these energies would be better placed elsewhere. even though there were attempts to accommodate the student projects, the process remained cumbersome and placed unrealistic expectations upon the students. students still have the option of applying for university ethics approval for their projects, however, they now rarely take this option as it is too work intensive and they may not receive the approval they require in a timely fashion in terms of their due date for their assignment. instead, the students now use their casework experiences and discussions with personnel at the site of the clinical placement about the broader issues around their projects. they now rely mainly on publicly available information from community organisations and research institutes as they can no longer interview people beyond the clinical placement experience. the students’ law reform projects no longer benefit from interviews with experts as they once did. this contact with other professionals often had the side benefit of opening up future pathways for university law clinics and their value in undertaking client-centred law reform to provide a voice for clients’ experiences 125 students in employment it has also clearly cut out the opportunity for the students to conduct further interview research with clients of the legal service beyond their own normal client interviews in relation to the casework. it has not however curtailed the capacity of the students to reflect client experiences as they can still use de-identified case studies based on real clients seen by both the workers at the legal service and in the broader health service as part of their placement experience. sadly, in manoeuvring the ethical problems this has created a disconnect in terms of the provision of the client voice and client centred law reform. however, students still decide to do a project based on their own experiences with clients or those of other personnel at the legal service the health service and in this way the client voice can still be heard. b. the use of ‘spin’ as stated earlier the danger which emerged specifically in the case study on the experiences of the somali community with government manipulating the students’ findings highlighted one of the problems encountered in law reform work where well intentioned student input into the public debate is distorted. nonetheless, the experience made the students aware that they needed to question statements by those in authority and not presume that just because statements are made by government they are correct. this incident was a warning to us all. c. disorientation another issue is the discomfort both the students and the clinical supervisor can be exposed to as they analyse the layers that can impact on clients from disadvantaged communities. aiken acknowledges that injustice can be disorienting. she argues that when this disorienting experience occurs we should seize upon it and help the students develop a critical consciousness of the operation of power and privilege both in the situation they are observing and in themselves.45 as stated earlier the use of feedback and reflection time built into the course design is a critical component in equipping students to develop a critical consciousness but also in order to ensure that students are given strategies by their lecturer/supervisor to deal with this disorientation. there are also articles that students can read which reveal other experiences of students in clinical programs that convey strategies for dealing with clients and difficult situations.46 d the critical role for universities in law reform activities of clinics many international law clinics are based in legal aid services.47 this is the case in australia, canada, and south africa, the united states of america and the united kingdom. the link that such 126 journal of clinical legal education december 2007 45 j h aiken, ‘striving to teach “justice, fairness and morality” (1997) volume 4 clinical law review, 1, 63. for an article discussing the reasons why lawyers should defend unpopular causes on the basis of professionalism, duty to the court, fealty to the truth, duty to the client and the bounds of the zeal see a smith, ‘defending the unpopular downunder’, (2006) volume 30 melbourne university law review, 495. 46 r. radar, confessions of guilt: a clinic student’s reflections on representing indigent client defendants (1994) vol. 1 no. 2, clinical law review 299–345 and j. howard, learning to think like a lawyer through experience (1995) volume 12, no. 1 clinical law review, 167–299. 47 i define legal aid service broadly so as to include legal aid commissions, community legal centres and law firms with a public interest law or human rights focus. clinical programs have to university settings also means that universities are ideally placed to complement case-work with their resources and skill in areas of research capacity and in law reform activities. in addition, sometimes universities also have scope, given the array of interdisciplinary scholars, to inform this law reform and research work in ways in which cash strapped legal aid organisations would be unable to. universities and their students can build the capacity of legal aid services to respond to emerging trends in case-work where issues of access to justice are ever present and can assist in the conducting of research into problems, brainstorming solutions and making recommendations which may improve either access to the legal system or make the legal system more just.48 aiken has lamented that legal educators neglect issues of justice because many fail to raise them when the opportunity arises. she claims that in this way legal education is failing. she argues that educators often act as if lawyers play no role in the operation of justice. she expresses concern that too often the message that students receive is that justice is merely the product of the application of neutral rules. she states that academics ignore the fact that the exercise of judgment, perhaps the most fundamental of legal skills, is inherently value laden.49 she notes the role that law lecturers can play in fostering students concerns about fairness and that they should not limit the consideration of law to only to only what the law says. she argues that the failure of law lectures to address the students’ concerns about fairness may communicate to students that those concerns have no place in the practice of law. aiken is concerned that legal educators often ignore the significant role that lawyers play in shaping public policy.50 in my clinical program at west heidelberg, the centerpiece is the exposure of students to client experience, the encouragement of questioning, and the need for them to critique the role of fairness and it’s interaction with the legal system. the law reform project offers them an opportunity, in addition to the client casework, to do this. balos in a provocative statement, has argued that: the systemic nature of the forces that hold in place the traditional values of the legal profession makes the prospect of a fundamental restructuring of legal education a daunting one. both legal education and the profession are embedded in values and cultural norms that will not be disrupted easily. given the structure of the traditional law school curriculum, pedagogical method, and culture, all of which construct of the prevailing boundaries in service to the status quo, the question to be asked is whether one can create a professional school that disrupts the university law clinics and their value in undertaking client-centred law reform to provide a voice for clients’ experiences 127 48 aiken has also argued that university courses should involve opportunities for students to commence a lifetime process of examining the exercise of privilege and the development of an appreciation of the professional value of striving for justice, fairness and morality. see j h aiken, ‘striving to teach “justice, fairness and morality” (1997) volume 4 clinical law review, 1. 49 babich, by contrast has argued that clinical programs adopt a self consciously apolitical approach. problematic in his argument, is that it is based on a political approach. a babich, the apolitical law school clinic, (2005) volume .11.issue 2 clinical law review, 447, 467. whilst this author agrees that in determining a focus on developing and implementing legal strategies to achieve the clients lawful goals does not involve the lawyer in selecting these goals, to go on to argue that apolitical philosophy defuses controversy by offering a politically neutral viewpoint presumes that the advocate themselves come to the legal solving process devoid of any personal contexts or without unconscious views on what is or is not political. 50 j h aiken, ‘striving to teach “justice, fairness and morality” (1997) volume 4 clinical law review, 1, 6–7. predominant construction of lawyer identity and the framework within which professionalism is defined… perhaps then all of us in the law school and legal community can begin efforts to engage collaboratively in the pursuit of justice as constitutive of professional identity.51 this quote highlights the challenge for traditional law schools but if law school are to continue to remain relevant to their students and to the legal profession and society in general then they may need to rise to meet the challenges that balos presents. by contrast, schrag and meltsner52 have argued that evolutionary change is occurring even within law schools: law schools are generally more hospitable places for teachers and students interested in law reform and social service than they were when we started teaching more than 25 years ago. clinical programs are larger and much better established, and teachers who do not themselves teach in clinics are much more accepting of what clinics offer students. scholarship interests of traditional teachers have changed; law reviews today contain few articles describing legal doctrine as if it was static and many articles (some of them rather abstractly) criticizing existing social arrangements and legal theories. service that faculty members provide to the community is often reckoned as a positive factor in tenure decisions, and many faculty members who do not engage in clinics engage on a personal level in public service activities, often in conjunction with public interest law firms or government agencies. this highlights the value of student clinical engagement in policy, not just for clients and students but also for universities themselves. conclusion feedback from a broad range of organisations has included statements about the value of the input from students, a raised awareness about the experiences of clients and members of the community, and a willingness by these organisations to investigate and take on board recommendations and suggestions made by the students. glanville has stated that the history of clcs has “recognised the connections between direct service work with individuals and the need for legal education and law reform if any change is to be sustained in the longer term.”53 i have argued in this paper, that clinical legal education programs which engage in law reform that is connected to client experience, can present an ideal opportunity for building a greater capacity for organisations where clinics are based in growing research aptitude and positioning client experience into a broader realm that involves improving the justice system. student lawyers, if given the opportunity can have a role to play in this. in the seven years since the law reform project was introduced, the students’ work has been widely acknowledged not just by the university but has gained in reputation with governments at state and 128 journal of clinical legal education december 2007 51 b balos, ‘the bounds of professionalism: challenging our students; challenging ourselves’ (1997) volume 4 clinical law review, 129, 146. 52 p g schrag, m meltsner, ‘law school clinics and social reform’ reflections on clinical legal education, northeastern university press, usa, 1998, 313 at 315. 53 l glanville, ‘community legal centres: can clcs advocate for themselves?’, (1999) volume 24 issue 3) alternative law journal, 154–156. federal level. the detailed and high quality work produced by the students under supervision, their ability to base it on real life client experiences and the calibre of the research and suggestions have impressed decision-makers. the decision-makers have not only implemented some of the students suggestions but they seem impressed by the fact that the law students are engaging with the clients and the decision-making processes and mechanisms. in mid 2007, at a book launch, the president of the court of appeal praised the students’ law reform work at la trobe university and noted that more law schools should engage in such useful work on behalf of the community. the president then went on to say he was going to a council of legal education board meeting to table a collection of the students work in the clinic and was going to suggest that clinics undertaking law reform should be part of the future agenda for educating law student in victoria. university law clinics and their value in undertaking client-centred law reform to provide a voice for clients’ experiences 129 130 journal of clinical legal education december 2007 reviewed article – clinic, the university and society 53 stakeholder perceptions of clinical legal education within an employability context jill alexander and carol boothby1 school of law, northumbria university, newcastle upon tyne, uk abstract the purpose of this paper is to examine how clinical legal education is perceived by current students, alumni, employers and clinic supervisors. the paper considers clinical legal education within the employability discourse in higher education and interrogates its place in the curriculum. with ever growing pressure on higher education providers to produce employable graduates in a challenging graduate marketplace this qualitative study seeks new insights into the role clinical legal education can play in preparing students for their transition from university into graduate careers. there has been little empirical research in this area and so this article explores the literature around the employability discourse, with particular focus on the impact of clinical legal education on employability before reporting on the findings from the focus groups and reaching conclusions about the implications of the impact of clinical legal education on employability. introduction since 2008, higher education institutions (heis) in the uk have had to bear greater economic, political and environmental pressures. the introduction by heis of higher 1 we are grateful to rachel dunn and karla prime of northumbria university for their contribution to this article as research assistants. reviewed article – clinic, the university and society 54 tuition fees against a backdrop of low economic growth and the need to accommodate the shifting demands of student, employer and government expectations has created a highly competitive and challenging marketplace. a key element in securing ongoing success for heis is student employability and the recent introduction in the uk of the teaching excellence framework2 (tef) has added a further dimension to this as it measures student satisfaction partly through employment outcomes metrics.3 with future funding linked to tef rankings, heis and academic research will continue to focus on employability as a significant factor in the higher education agenda. this article will highlight stakeholder perceptions drawn from a pilot empirical study of the role clinical legal education can play in an employability context and will interrogate a number of assumptions about the role of clinical legal education in preparing students for the transition into employment. there has been a huge increase in recent years in the number of law schools in the uk offering some form of clinical legal education4 yet there is little research on the interrelationship between clinical 2 tef is a system that assesses the quality of teaching in universities in england. it was introduced by the uk government in 2017 to provide a resource for students to judge teaching quality in universities and to increase the importance of teaching excellence (and bring it into line with research excellence) when rating institutions. universities are classified gold, silver or bronze. these ratings are determined by six core metrics based on teaching, academic support and progression to employment: department for business, innovation and skills (2016) “success as a knowledge economy: teaching excellence, social mobility and student choice”. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/523546/bis-16-265success-a.s-a-knowledge-economy-web.pdf 3 based on dlhe (destinations of leavers from higher education) data available at www.hesa.ac.uk. 4 at least 70% of all law schools were involved in pro bono and/or clinical legal education: https://www.lawworks.org.uk/sites/default/files/lawworks-student-pro-bono-report%202014.pdf. reviewed article – clinic, the university and society 55 experience and legal employability. 5 there is research in abundance around the employability discourse generally6 but little research within a legal context7 and even less around clinical legal education and employability8. as the legal sector becomes increasingly disjointed, legal educators need to engage in discourse with employers to adapt to the changing legal landscape 9 . this is particularly important now as uk university law schools face their biggest challenge in decades of managing a period of transition with the replacement of qualifying law degrees, graduate diplomas in law and legal practice courses with the new solicitors qualifying examination10. this brings with it a great deal of uncertainty for 5 j russell, ‘enhancing employability for llb law graduates initiatives with ilex and clinic at london south bank university’ (2011) the law teacher, 45:3, 348-360. 6 philip brown, anthony hesketh and sara williams , 'employability in a knowledge-driven economy' journal of education and work (2003) 16:2, 107-126. michael tomlinson, 'investing in the self: structure, agency and identity in graduates' employability' (2010) education, knowledge & economy 4(2), 73-88, 74. michael tomlinson, ‘graduate employability: a review of conceptual and empirical themes’ high educ policy (2012) 25: 407, 425. 7 one study explored factors that enhance employability with work experience being ranked as the most useful factor: p childs, n firth and h de rijke, ‘the gap between law student career aspirations and employment opportunities’ (2014) 48(1) law teacher 51-68, 58. francis’s research explored employability through the lens of legal work experience before arguing that it should not be seen ‘as an uncontested good’: andrew francis, 'legal education, social mobility, and employability: possible selves, curriculum intervention, and the role of legal work experience' (2015) 42 journal of law and society 173. 8 an australian paper interrogates the connection between graduate employability skills and law clinics, francina cantatore ‘the impact of pro bono law clinics on employability and work readiness in law students’ international journal of clinical legal education (2018) 25:1, 147-172; and research in the uk that examines employers’ awareness and understanding of clinical legal education, linden thomas, ‘it puts the law they’ve learnt in theory into practice: exploring employer understandings of clinical legal education’ in linden thomas, steven vaughan, bharat malkani and theresa lynch (eds) reimagining clinical legal education (hart publishing 2018) 127-154. 9 e dagilyte and p coe, ‘professionalism in higher education: important not only for lawyers’ (2014) 48(1) law teacher 33-50, 34. 10 sra, ‘a new route to qualification: the solicitors qualifying examination’ (2017) www.sra.org.uk/sra/consultations/solicitors-qualifying-examination.page, accessed 6 june 2018. http://www.sra.org.uk/sra/consultations/solicitors-qualifying-examination.page reviewed article – clinic, the university and society 56 law schools as to future student interest in law as an academic discipline without the professional accreditation. 11 it is therefore more relevant than ever to ensure stakeholder voices are heard and this research project focusses on stakeholder perceptions of the impact of clinical legal education on employability, offering a unique insight into the role clinical education can play within an employability context. what do we mean when we talk about employability? rajan et al. opine that employability ‘is one of the few words that have gone from cliché to jargon without the intermediate stage of meaning’.12 the prominence of the employability agenda has resulted in a large body of literature around the definition of employability but no single agreed definition. if employability is simply about ‘getting a job’, it can be measured using dlhe (destination of leavers from higher education survey) statistics13, however imperfect and unsatisfactory that proves to be. being employable is obviously a pre-requisite to being employed but not all 11 m davies, ‘changes to the training of english and welsh lawyers: implications for the future of university law schools’ (2018) the law teacher 52(1) 100-125, 101. 12 amin rajan, penny van eupen, karen chapple and david lane (2000) ‘employability: bridging the gap between rhetoric and reality, first report: employer’s perspective’ create consultancy/professional development foundation, london. 13 the dlhe is an annual survey of uk recent graduates, aimed at finding out what they have gone on to do approximately six months after graduating. reviewed article – clinic, the university and society 57 employable people can transition to employment.14 brown and hesketh 15 introduced the concept of the duality of employability, that employability is both an absolute and a relative concept, the acquisition of skills being the absolute and relative in that it depends on the laws of supply and demand in the market. getting a job can be relatively easy if jobs are in abundance but when there are fewer jobs available, employers can afford to be very selective in getting the right person irrespective of their apparent employability. heis do not control the graduate recruitment process or the economy and there are a huge number of variables that come into play during the recruitment process such as educational background, race, religion, gender, social background and disability that heis cannot influence.16 so, if employability is not just about employment then what is it? academics, politicians and businesses have conceptualised employability as a set of skills that graduates must acquire, albeit without much consensus as to what that actually means. the skills debate has unfolded over many years from when the dearing report17 referred for the first time to skills outcomes as well as knowledge outcomes (albeit that it only referred to communication, numeracy, the use of information 14 mantz yorke, ‘employability in higher education: what it is what it is not’ (2004, re-issued 2006) york: the higher education academy. 15 philip brown, anthony hesketh and sara williams 'employability in a knowledge-driven economy' (2003) journal of education and work 16:2, 107-126, 110. 16 these variables reflect one of holmes’ conceptualizations of employability as ‘positional’ where employability is understood through social positioning. leonard holmes, ‘competing perspectives on graduate employability: possession, position or process?’ (2013) studies in higher education, 38:4, 538-554. 17 r dearing ‘higher education in the learning society’ (1997) report of the national committee of inquiry into higher education, london: hmso. reviewed article – clinic, the university and society 58 technology and learning how to learn). this inclusion resulted in increased engagement from the uk hei sector with initiatives to ‘embed’ skills within the curriculum and resulted in a wide range of studies identifying skills that graduates should possess as well as frameworks to embed employability within the curriculum and help students develop their employability (knight and yorke, usem model (2003) 18 ; dacre pool & sewell, careeredge model (2007) 19 ). employers too have contributed to the debate with the confederation of british industry (cbi) (along with the national union of students) defining employability as: ‘a set of attributes, skills and knowledge that all labour market participants should possess to ensure they have the capability of being effective in the workplace – to the benefit of themselves, their employer and the wider economy’. 20 thus, the skills-based conceptualisation of employability has dominated academic discourse as heis strive to ensure their students’ skill-set meet ever shifting employer expectations. our study sits within this conceptualization and interrogates stakeholder perceptions of the skills students can develop from clinical legal education as part of the student journey. 18 p knight and m yorke, ‘assessment, learning and employability’ (2003) maidenhead, u.k: open university press. 19 lorraine dacre pool and peter sewell, ‘the key to employability: developing a practical model of graduate employability’ (2007) education + training, vol. 49 issue: 4, 277-289. 20 confederation of british industry (cbi) (1999) ‘making employability work: an agenda for action’, london: cbi. reviewed article – clinic, the university and society 59 employability and legal education it is held as axiomatic that students want to secure graduate employment, while employers want to employ graduates who have the skills, knowledge and attributes that they are looking for. in 2016, 25,155 uk students applied to study law at undergraduate level in england and wales; 17,855 were accepted.21 these figures are disconcerting when taken in the context of how many law graduates continue on to either a training contract (5,728) or pupillage (474). 22 while not all students have that goal in mind, research has shown that 70.98% of students had the intention of entering the legal profession when they started their law degree.23 with increasing competition for training contracts and pupillages, a law graduate needs to be ‘future fit’24 and able to distinguish themselves from the rest of the crowd. they need to develop the skills that will prepare them for what employers and clients require. 21 the law society, 'becoming a solicitor: entry trends' (the law society, 2016), https://www.lawsociety.org.uk/law-careers/becoming-a-solicitor/entry-trends/, accessed 23rd march, 2018. 22 in the year ending 31 july 2016, 5,728 traineeships were registered with the sra (the law society, becoming a solicitor: entry trends, http://www.lawsociety.org.uk/law-careers/becoming-asolicitor/entry-trends/). in 2016/17 there were 1424 students enrolled on the bptc, but there were only 474 first six pupillages registered, https://www.barstandardsboard.org.uk/mediacentre/research-and-statistics/statistics/pupillage-statistics/ accessed 4th june 2018. 23 melissa hardee, ‘career expectations of students on qualifying law degrees in england and wales’ (2014) hea https://www.heacademy.ac.uk/system/files/resources/hardee_interimreport_2014final.pdf, accessed 21 june 2018. hardee’s study compares the first year data of her study with the results of an earlier study conducted for the uk centre for legal education (ukcle), where 79.1% of students had the intention of entering the legal profession. 24 andrew francis, 'legal education, social mobility, and employability: possible selves, curriculum intervention, and the role of legal work experience' (2015) 42 journal of law and society 173, 177. http://www.lawsociety.org.uk/law-careers/becoming-a-solicitor/entry-trends/ http://www.lawsociety.org.uk/law-careers/becoming-a-solicitor/entry-trends/ https://www.barstandardsboard.org.uk/media-centre/research-and-statistics/statistics/pupillage-statistics/ https://www.barstandardsboard.org.uk/media-centre/research-and-statistics/statistics/pupillage-statistics/ https://www.heacademy.ac.uk/system/files/resources/hardee_interimreport_2014final.pdf reviewed article – clinic, the university and society 60 in employability discourses, graduates are often described as knowledge workers bringing with them skills, knowledge and intellectual capital that will ‘springboard them into desirable occupational positions’.25 if we consider employability in relative and absolute terms, the ‘absolute’ requires the graduate to differentiate themselves within the hierarchy of job seekers through the development of knowledge and skills and the ‘relative’ will depend on the demand for graduates at any given time.26 law schools cannot change the ‘relative’ dimension of employability but can contribute towards the ‘absolute’ dimension. the law curriculum has to manoeuvre a path that synthesizes substantive legal knowledge with practice based and employability skills. this has always been a challenge with proponents of a liberal legal education27 querying the need for skills and employability type activities being encompassed within the undergraduate curriculum. however, the pressure from government, employers and students to produce ‘job ready’ graduates propels all but the most elite universities towards embracing this agenda. the move towards centrally set and marked assessments in england and wales (solicitors qualifying exam (sqe))28 as a gateway to the solicitors’ 25 michael tomlinson, 'investing in the self: structure, agency and identity in graduates' employability' (2010) education, knowledge & economy 4(2), 73, 74. 26 philip brown, anthony hesketh and sara williams, 'employability in a knowledge-driven economy' (2003) journal of education and work, 16:2, 107, 110. 27 for a discussion of what is meant by a liberal legal education see, for example jessica guth & chris ashford ‘the legal education and training review: regulating socio-legal and liberal legal education?’ (2014) the law teacher, 48:1, 5-19, doi: 1080/03069400.2013.875304; a bradney, ‘conversation, choices and chances: the liberal law school on the twenty-first century’ (oxford hart publishing 2003). 28 sra, ‘a new route to qualification: the solicitors qualifying examination’ (2017) www.sra.org.uk/sra/consultations/solicitors-qualifying-examination.page, accessed 6 june 2018. http://www.sra.org.uk/sra/consultations/solicitors-qualifying-examination.page reviewed article – clinic, the university and society 61 route into the legal profession is unlikely to alter that situation as law departments in england and wales make strategic decisions on where to position themselves as they navigate this radical new approach to legal training. under the sra’s new scheme, qualifying law degrees, law conversion courses (cpe/gdl) and legal practice courses will be replaced by the sqe and with no sra accreditation requirements to meet, law departments will in theory have greater freedom to redesign the curriculum.29 however, such choices will depend on whether and to what extent sqe preparation will form part of their offer. whatever choices are made, employability will retain its relevance and in fact may become even more important in what will be a period of change and uncertainty for both students and law departments as to the value of having a law degree that no longer attracts sra accreditation.30 in order to blend substantive legal knowledge with practice based skills, an increasing number of law schools in the uk have clinics that offer live client work to law students as part of their legal education.31 apart from improving the student experience, it also provides students with a glimpse of the ‘legal environment that awaits them upon 29 although, the qualifying law degree will remain relevant for entry to the bar, bar standards board, ‘bsb policy statement in bar training’ (2017), /www.barstandardsboard.org.uk/media/1825162/032317_fbt__policy_statement_version_for_publication.pdf, accessed 6 june 2018’ 30 see mark davies, ‘changes to the training of english and welsh lawyers: implications for the future of university law schools’ (2018) the law teacher, 2018 vol. 52, no.1, 100-125. doi:10.1080/03069400.2017.1394145, for a fuller discussion of these points. 31 for more information please see lawworks law school pro bono and clinic report 2014, available via https://www.lawworks.org.uk/solicitors-and-volunteers/resources/lawworks-law-school-probono-and-clinics-report-2014 accessed 01.04.16. https://www.lawworks.org.uk/solicitors-and-volunteers/resources/lawworks-law-school-pro-bono-and-clinics-report-2014 https://www.lawworks.org.uk/solicitors-and-volunteers/resources/lawworks-law-school-pro-bono-and-clinics-report-2014 reviewed article – clinic, the university and society 62 graduation.’ 32 it provides a learning environment and experience that cannot be duplicated in the classroom. while cle is becoming increasingly popular there remains some contention, and a lack of evidence, as to whether cle provides students with the necessary skills and competencies to enhance their employability. we make logical claims that students working with live clients will enhance their employability, giving them experience of the law in a practical setting prior to starting training contracts or equivalent. however, there is little data, particularly for the uk, to support this33. in order to determine which skills our graduates should be equipped with and whether cle can contribute towards the development of those skills, we undertook a pilot study to interrogate stakeholder perceptions of cle within an employability context. this paper, whilst only a small study in newcastle, uk, has attempted to do this. northumbria university is a post 1992 university and the law school has a long tradition of delivering vocational, practice focussed courses. the law school is well placed to carry out this research with its award winning, internationally renowned clinic, known as the student law office (slo), which is an integral part of our mlaw course34 and which offers a full casework in-house model with the capacity to provide 32 james marson, adam wilson and mark van hoorebeek, 'necessity of clinical legal education in university law schools: a uk perspective' (2005) 7 international journal of clinical legal educ 29, 30. 33 there is an australian paper that interrogates the connection between graduate employability skills and law clinics, francina cantatore, ‘the impact of pro bono law clinics on employability and work readiness in law students’ (2018) international journal of clinical legal education 25:1, 147-172. 34 for more information visit https://www.northumbria.ac.uk/study-at-northumbria/courses/m-lawexempting-ft-uufmay1/. reviewed article – clinic, the university and society 63 not just advice, but representation. for the majority of students, participating in the law clinic is a compulsory, credit bearing part of their studies.35 students work on cases under the supervision of members of academic staff who are legally qualified, with experience as lawyers in practice. methodology the purpose of this research is to get a fuller insight into perceptions of cle by interrogating participants’ experiences as employers, alumni, students and clinical teaching staff to gain a better understanding of what employability skills can and perhaps cannot be gained from clinic in its current form. this study follows a subjectivist approach to studying social phenomena and used qualitative analysis from the focus groups. the research was inductive and interpretive and drew out themes from the data collected; 36 we were theory building as opposed to theory testing. in our analysis, we were conscious of moving back and forth between a more naïve and inductive content analysis and deductive testing of our own preconceived ideas and by using a participatory and open ended data collection tool we were able to collect experiential insights into the participants’ perceptions. 35 for more information, visit https://www.northumbria.ac.uk/about-us/academicdepartments/northumbria-law-school/study/student-law-office/. 36 john dewey, (1933) ‘how we think: a restatement of the relation of reflective thinking to the educative process.’ reviewed article – clinic, the university and society 64 in this study, four focus groups were used to examine the views of employers from local law firms (9 participants); alumni (8 participants) who had participated in the law clinic at northumbria university and who were in employment locally; current students (6 participants) participating in the law clinic; and clinical teaching staff (10 participants). the employer group comprised employers who have employed northumbria university graduates in the past and who had an understanding of what is meant by cle having recruited northumbria graduates over many years37. each focus group lasted approximately one hour and were recorded and then transcribed. the cbi/nus model of employability was used, which lists the following skills and attributes: positive attitude, self-management, team working, business awareness, problem solving, communication, numeric awareness and basic information technology skills.38 this list was shown to each group who were asked to comment on this in the context of the clinical provision at northumbria, the student law office. this approach was chosen to give the participants some structure to explore the themes without constraining their ideas, and they were able to add to the model or remove or vary anything within it. 37 we appreciate that cle is not universally understood, linden thomas, ‘it puts the law they’ve learnt in theory into practice: exploring employer understandings of clinical legal education’ in linden thomas, steven vaughan, bharat malkani and theresa lynch (eds) reimagining clinical legal education (hart publishing 2018) 127-154, 141. 38 cbi/nus working towards your future (2011). reviewed article – clinic, the university and society 65 we were cognisant of our ‘insider’ status as lecturers undertaking research using alumni, peers and students as participants and were reflexive39 in our approach to analysing the data. while one of the researchers played a major role in the law clinic, the other did not and that separation along with our recognition of potential bias from the ‘insider’40 positioning created a consciously reflexive41 environment that enabled us to consider the data through a critical lens. results there was agreement across the groups that all the skills in the cbi/nus model were relevant to current law practice albeit some required greater emphasis than others. a key theme was communication in all its different forms with the employers highlighting how critical it is to client relations but that some trainees/paralegals ‘hide’ behind emails rather than picking up the phone. alumni felt very strongly that their slo experience gave them an edge when they first started in their firm as they had already been exposed to clients during their year in the slo, with one alumni commenting: 39 al cunliffe, ‘reflexive inquiry in organizational research: questions and possibilities’ (2003) human relations 56(8): 983-1003. 40 b bourke, ‘positionality: reflecting on the research process’ (2014) the qualitative report, 19(33):19; sonya corbin dwyer and jennifer l buckle, ‘the space between: on being an insider-outsider in qualitative research’ (2009) international journal of qualitative methods. https://doi.org/10.1177/160940690900800105; elizabeth mcness, lore arthur & michael crossley, ‘”ethnographic dazzle” and the construction of the “other”: revisiting dimensions of insider and outsider research for international and comparative education’ (2015) compare: a journal of comparative and international education, 45:2, 295-316, doi: 10.1080/03057925.2013.854616. 41 the sage handbook of qualitative business and management research methods (sage publications 2017) chapter 23. https://doi.org/10.1177%2f160940690900800105 https://doi.org/10.1080/03057925.2013.854616 reviewed article – clinic, the university and society 66 i was happy to pick up a phone in my first seat on my first day, just ring someone up because of the slo, i know trainees in my year, when we started on our first day were panicking over making a phone call because they’d never done it before. the student group certainly shared this view and felt that they had developed their communication and client care skills and that their fear of calling a client had diminished as their exposure to clients grew, with one students saying: it seems ridiculous now, but, like, if you were on a training contract and you hadn’t had the slo, imagine if you got told to ring a client, you’d be scared but now i just go ‘yeah cool’, and another adding; …being in the slo kind of gives you that groundwork [when dealing with clients] and what you need to be able to build on so that you can deal with clients on a day to day basis as part of a firm. employers emphasised the importance of communication in its broadest form, which is congruent with other findings,42 and that they needed graduates who could adapt and deal with different types of people across a spectrum of levels. this related not just to clients but also other professionals including those within the employer organisation. linked to that, alumni recognised the importance of building networks and this was an area along with business awareness that they felt they were not exposed to during their clinical experience. for employers, unsurprisingly, they 42 for example, david rigg, ‘embedding employability in assessment: searching for the balance between academic learning and skills development in law: a case study’ (2013) the law teacher, 47:3, 404-420; w archer and j davison, ‘graduate employability, “what do employers think and want?”’ (2008) the council for industry and higher education. http://www.cihe-uk.com. http://www.cihe-uk.com/ reviewed article – clinic, the university and society 67 wanted graduates to be ‘commercial’ and work quickly and efficiently with an awareness of the costs for both the firm and the client. this emphasis on commerciality is shown in thomas’s research too where the majority of the participants in the study ‘specifically mentioned commercial awareness as a desirable quality in future recruits’.43 the slo works on a pro bono model and does not have a financial imperative, as one alumni said: i think there is a little bit that could be done maybe just to say ‘look guys, in real life, you’re not just going to be sitting there, being spoon-fed’ …it’s not just a learning exercise, at the end of the day it’s a business, with another adding, in the slo you could quite happily sit there for hours and hours and hours on the task that, you know, you get into a firm and you can’t really sit there for hours and hours doing it, that’s not profitable. the student group was not ignorant of commercial realities, one student highlighted this; i think more should be made of business awareness because i think most of it stems from that: if you understand how the business works and what the aims are for the customer or the client then the way you work and how you relate yourself to that job – it all stems from that… while they had an appreciation that spending too much time on a small issue was not cost effective, it was clear that, for the students’ focus group, in a clinic, which is 43 linden thomas, ‘it puts the law they’ve learnt in theory into practice: exploring employer understandings of clinical legal education’ in linden thomas, steven vaughan, bharat malkani and theresa lynch (eds) reimagining clinical legal education (hart publishing 2018) 127-154, 141. reviewed article – clinic, the university and society 68 assessed for academic credit, assessment is the ‘currency’. their motivation was to gain the best mark and that was their primary driver and if that meant spending a lot of time on a small issue then they would always choose to do so in an educational environment. as one student said: i think you know that’s the case [that you need to work efficiently in real life] but then because it doesn’t affect us we just carry on doing it. …if in the real world you can only spend 20 minutes, i would spend an hour if it meant i get a top mark! clinical supervisors were well aware of commercial drivers, but they also saw the law clinic experience as providing intensive feedback and mentoring44 that would enable students to be resilient enough to maintain their independence and autonomy in their future careers. both the student and the staff groups highlighted an important element, that the slo exposes students to the ‘messiness of law’, to the reality away from carefully crafted ‘academic’ problems to appreciate that client problems routinely do not ‘neatly fit into any kind of straightforward legal answer’. another theme arising from these focus group discussions included the differing views of employers and students as regards the value of the law clinic experience on their employability skills. the impact of the clinical experience was clear from the alumni group, who were overwhelmingly positive about their experience in the law 44 this view expressed by supervisors on the importance of the educational experience is reflected in the 2014 lawworks survey, where 94% of the law schools who responded to the survey rated ‘educational value’ as ‘very important’: ‘the law works law school pro bono clinic report 2014’, https://www.lawworks.org.uk/sites/default/files/lawworks-student-pro-bono-report%202014.pdf. reviewed article – clinic, the university and society 69 clinic and spoke with great affection of this and how they continue to reflect on what they have learned there, with an alumni commenting: i was so grateful to have the slo because then i had a bit more confidence…because even though i didn’t have much supervision [in their job], i had, sort of, an idea of what i was doing because i had done it previously. one employer did not feel they could differentiate between those who came to them having had experience in the slo, and those who have not, although amongst the alumni, this clinic experience was clearly greatly valued, not just by them but by their employers. whilst proponents of cle and students alike may hope their experience in clinic enables them to stand out to employers, there is also a value for many students from post 92 universities simply to be perceived as on a par with their peers, bearing in mind that many of those peers are likely to have significantly higher social capital. there was also discussion within the employer, alumni and staff groups around how to ‘sell’ clinical experiences to prospective employers and the balance to be achieved between those who undersell and those who oversell. the alumni did highlight the importance of contextualising the clinic experience when discussing their skills with prospective employers, for example, by showing employers that they had an awareness of the ways in which clinic was not the same as legal practice, in terms of volume, speed, and level of supervision and feedback. however, perhaps the most impactful aspect of the focus groups was the way alumni spoke with both passion and enthusiasm of their time in clinic, and the value to them reviewed article – clinic, the university and society 70 when they started as legal professionals, particularly in terms of confidence. one alumni said: i feel that that’s helped me a lot when i’ve then transferred into a firm because now i’m not scared to be thrown in the deep end and i’m not scared to go and try new things or be in difficult situations or argue a difficult case because i think it’s built the confidence that i’ve needed to be able to do that, with another adding: i think the slo is such a good stepping stone for that because you are put in that position where you do need to ask questions and you might not know the answer or you might have a different idea to what somebody else has said and it’s having the confidence to put that across. this idea of the law clinic as a valuable stepping-stone was reflected in another student comment; i think there is quite a lot of difference between working in a firm and the slo but i think it’s a useful difference because i think the slo is never going to fully replicate life in a firm but it provides something that a firm can’t because you really have got people who have that time to give you really really thorough supervision where you have got that extra time to consider things fully and so you do get a bit more in-depth training. it can be seen from these themes and comments that employability skills can and are being developed in the slo, but that currently there is limited exposure to aspects of commerciality that would further enhance the students’ employability. while ‘confidence’ does not fit within the nus/cbi model of employability as a separate entity, the ‘positive attitude’ that is at the centre of the model is only possible if reviewed article – clinic, the university and society 71 individuals are confident and both the student and alumni group saw the clinic as pivotal in building their confidence when transitioning into employment. interrogating the relationship between cle and employability our study sits at an intersection between ‘clinic’ and ‘employability’ and as such we will review the discourse emerging from the literature. cle provides an alternative context of the ‘meaning, operation and consequences of legal rules and doctrines’45 and enables law students to learn by engaging with their studies in a live client environment.46 its primary intent is to engage students in ‘active rather than passive learning’ 47 by providing contexts for learning that differ from traditional pedagogical legal education.48 amsterdam has criticised the narrowness of traditional methods which: ‘failed to develop in students’ ways of thinking within and about the roles of lawyersmethods of critical analysis, planning, and decisionmaking which are not themselves practical skills but rather the conceptual foundations for practical skills and for much else, just as 45 jonny hall and kevin kerrigan, ‘clinic and the wider law curriculum’ (2011) 15 international journal of clinical legal education 25, 30. 46 georgina ledvinka, ‘reflection and assessment in clinical legal education: do you see what i see?’ (2006) 9 international journal of clinical legal education 29. 47 lord chancellor's advisory committee on legal education and conduct 1st report, april 1996, paragraph 2.2, cited in, jonny hall and kevin kerrigan, ‘clinic and the wider law curriculum’ (2011) 15 international journal of clinical legal education 25. 48 richard grimes, ‘reflections on clinical legal education’ (1995) 29 law tchr. 169. reviewed article – clinic, the university and society 72 case reading and doctrinal analysis are foundations for practical skills and for much else.’ 49 in amsterdam’s opinion, cle could address the failings in traditional methods and provide students with the skill-set needed for modern practice where it was no longer possible to ‘impart to students a self-contained body of instruction in the law.’50 after the boom of cle in the us in the 1960/70s51 academics and clinicians began a discourse around skills teaching and its place in legal education in conjunction with a discourse around the importance of different legal skills in preparing law students for practice.52 these types of studies are beginning to emerge in the uk. marson et al highlight the importance of incorporating cle into law school curriculums,53 stating that this kind of learning experience ‘invigorates’54 students and provides them with real life examples of skills that employers require. other studies, presented as conceptual papers, have concluded that cle is the best teaching method to provide 49 ag amsterdam, ‘clinical legal education – a 21st century perspective’ (1984) 34 j. legal educ. 612. 50 ibid 612. 51 fs bloch (ed), ‘the global clinical movement: educating lawyers for social justice’ (oxford university press 2011). 52 r schwartz, ‘the relative importance of skills used by attorneys’ (1973) 3 golden gate law review 321; d benthall-nietzel, ‘an empirical investigation of the relationship between lawyering skills and legal education’ (1975) 63 kentucky law journal 373; ll baird, ‘a survey of the relevance of legal training to law school graduates’ (1978) 29 journal of legal education 264 ; s bright, ‘what, and how, should we be teaching?’ (1991) 25 law tchr.11; e peden & j riley, ‘law graduates' skills a pilot study into employers' perspectives’, (2007) sydney law school research paper no. 07/81. accessed via http://ssrn.com/abstract=1034823. 53 james marson, et al., ‘the necessity of clinical legal education in university law schools: a uk perspective’ (2005) 7 international journal of clinical legal education, 29. 54 ibid 31. http://ssrn.com/abstract=1034823 reviewed article – clinic, the university and society 73 our students with the skills, attributes and knowledge they will need for practice, but, with no data to support these conclusions, there is a credibility gap.55 the lawyering skills research continues but with the economic downturn, the increase in clinical programmes has attracted a new line of research triggered by a paper by professor yackee from the us, which proved highly controversial and sparked a lively exchange of views.56 yackee undertook an empirical examination of the link between law school experiential learning opportunities (i.e. cle) and employment outcomes and concluded that ‘there is not much evidence that law schools that provide greater opportunities for skills training have substantively better employment outcomes than those law schools that provide fewer opportunities’. 57 his project focused on the narrower concept of employability being about ‘getting a job’ and, perhaps with an eye to anticipated criticism, said that he was not attempting to show that cle is ‘wasteful, misguided, or otherwise undesirable’,58 although he is clearly not a cle proponent! he opines that his study suggests that the investment into cle may not pay off and can actually be harmful to employment outcomes59 although it could be argued that this was not in fact demonstrated. his reasoning is that law schools with 55 for example, russell discusses how changes to the llb curriculum at london southbank university to include extra-curricular clinic, which it was claimed would enhance employability, amongst other benefits. however, this was a descriptive piece, with no specific data to support these conclusions: j russell, ‘enhancing employability for llb law graduates initiatives with ilex and clinic at london south bank university’ (2011) the law teacher, 45:3, 348-360. 56 jw yackee, ‘does experiential learning improve jd employment outcomes?’ (2015) wis. l. rev. 601. 57 ibid 604. 58 ibid 604. 59 ibid 614. reviewed article – clinic, the university and society 74 poorer employment outcomes invest more into cle,60 and that the prestige of a law school is what drives employment outcomes, with the lower prestige bringing with it lower employment outcomes. 61 the results of yackee’s study are based on graduates from the top 100 u.s. law schools who have gone on to become attorneys, and does not include other legal jobs, such as clerkships and paralegal. the failure to include other legal jobs and opportunities, which arguably do count towards legal employment, provides a limited picture. perhaps this can be explained by his concluding sentence that there is a lack of evidence that cle is likely to improve graduates’ ‘overall prospects of obtaining a quality job as a lawyer’.62 thus, yackee has gone from ‘any employment’ with a law degree to what he refers to as ‘quality’ jobs. yackee acknowledged that the empirical analysis of a link between law school clinics and employment outcomes was preliminary and that the ‘statistical model is admittedly thin’.63 kuehn certainly agreed and addressed a number of methodological concerns about yackee’s approach in his 2015 paper. 64 kuehn used yackee’s methodology, with some adjustments, to highlight how yackee’s study could not draw reliable conclusions of the effect of law clinics and cle on employability.65 he concluded that yackee’s ‘method does not support any conclusion about if or to what 60 ibid 614-615. 61 ibid 612-613. 62 ibid 622. 63 ibid 609. 64 rr kuehn, ‘measuring clinical legal education’s employment outcomes’ (2015) legal studies research paper series, paper no. 15-12-01. 65 ibid 646. reviewed article – clinic, the university and society 75 degree law clinic availability or experiences affect employment outcomes’.66 kuehn recommends that this kind of research should be done on a school-by-school basis67 but does agree, however, that there needs to be more research conducted in this area before any strong conclusions can be drawn. kuehn argues that other studies have shown cle helps graduates to secure employment, specifically referencing findley’s response to yackee. findley, in his conceptual paper, considers whether, if yackee’s conclusion that cle does not seem to improve employment outcomes is correct, then we should be asking why employers aren’t influenced by cle and what do employers want in terms of cle and skills training,68 working with them so they understand what cle provides law graduates with, in terms of skills, attributes and knowledge. critiquing yackee’s methodology, he states that the data cannot tell us various other relevant answers, such as whether cle helps graduates get their first choice of job or with a better salary.69 regardless of whether cle helps employment outcomes, findley highlights that ‘...data about the hiring rates of graduates from various law schools should not dominate discussions about the value of clinical education’.70 if law schools work more with employers to enable them to understand what cle can provide and for educators to 66 ibid 647. 67 ibid 664. 68 ka findley, ‘assessing experiential legal education: a response to professor yackee’ (2015) univ. of wisconsin legal studies research paper no. 1348 627, 628. accessed via http://ssrn.com/abstract=2592684 last cited 04/04/16. 69 ibid 640-641. 70 ibid 643. reviewed article – clinic, the university and society 76 understand the needs of employers then statistics around graduate employment will not be a driving factor, but equipping students with what they need to start practice competently will be. while yackee’s research certainly caused a scholarly ‘rumpus’, it did also open an interesting debate around the importance/relevance of clinical experience to american employers. turning now to the uk perspective, francis71 has argued that legal employability was a ‘negotiated and situated process’ and had to be taken beyond the skills and attributes conceptualisation and understood through the psychological concept of ‘possible selves’.72 francis’s study drew on empirical research looking at legal work experience, which challenged the ‘notion of the legal market as a neutral sphere within which individuals succeed by virtue of their own merit’. francis interrogated the impact of legal work experience on employability, and the influences of social and cultural reproduction on access into the legal profession73. this study consisted of surveys and focus groups with pre and post-1992 university students and a survey distributed to 50 law firms. while francis’s response rate was low (16%), he stated responses were consistent with other studies (e.g. a study by kings college london, who conducted a survey with 20 named magic circle law firms 74 ). his sample consisted of multinational, magic circle or large corporate law firms bar one regional 71 andrew francis, ‘legal education, social mobility, and employability: possible selves, curriculum intervention, and the role of legal work experience’ (2015) 42 journal of law and society 173. 72 h markus and p nurius, ‘possible selves’ (1986) 41 am. psychologist 954. 73 francis drew on the work of bourdieu, and two of his key concepts, habitus and cultural capital, as a way of understanding an individual’s social position p bourdieu, ‘the logic of practice’ (1990) 59. 74 king’s college london law employability research, in partnership with the times 2013. reviewed article – clinic, the university and society 77 law firm. again, the focus is not on graduate legal jobs generally, but the ‘quality jobs’ similar to those mentioned in yackee’s study. francis concluded from his study that social mobility and employability were not influenced so much by relevant work experiences as by social background. for students who are from a more privileged background the future is ‘knowable’ and this allows them to see their ‘future selves’ 75 as lawyers. students from pre-92 institutions were more likely to apply, multiple times, for formal legal work experience and students with family/friends connections to the legal profession were twice as likely to have secured work experience at an early stage as those without connections. 76 for students from less advantaged backgrounds the future is not ‘knowable’ and thus those students can’t use this future idea of themselves as lawyers as motivation to apply at all or to apply time and time again for informal work experience, vacation schemes etc. students from ‘particular backgrounds’ or who have ‘attended particular educational institutions’77 need more support to understand what firms are looking for, and to be able to access opportunities. francis’ findings highlight that employers are looking for trainees who stand out and this is usually demonstrated through extra-curricular activities. while this may seem a neutral requirement, many students at post-92 universities are juggling jobs on top of their studies, which is a barrier not only to accessing extra-curricular activities but also to 75 andrew francis, ‘legal education, social mobility, and employability: possible selves, curriculum intervention, and the role of legal work experience’ (2015) 42 journal of law and society 173. 76 ibid 187-188. 77 ibid 201. reviewed article – clinic, the university and society 78 gaining unpaid legal work experience. one of the employer participants in francis’ paper commented that “a burning ambition to whitewater raft on the amazon” could be a legitimate reason why an applicant had not undertaken work experience,’ 78 demonstrating the type of alternative experience that is valued. as the letr report has highlighted, graduates from non-elite universities and less privileged backgrounds are disadvantaged from developing the preferred cv to demonstrate the ‘spark’ so often referred to by elite recruiters, with a participant commenting, ‘i’m sorry i couldn’t go to cambodia’.79 interestingly, king provides a view from practice as a manager from within a magic circle firm, and looks at the choice students may have between clinic (at institutions where this is optional rather than credit bearing) and sporting or charitable extra-curricular activities, without mention of the struggle many students have to manage work and studies. 80 clearly, students from lessprivileged backgrounds are indeed at a disadvantage in this highly complex and opaque elite recruitment process. francis also concludes that for law firms who are considering the value of cle it is ‘unlikely to be viewed as carrying the same cultural capital as traditional forms of 78 andrew francis, ‘legal education, social mobility, and employability: possible selves, curriculum intervention, and the role of legal work experience’ (2015) 42 journal of law and society 173. 79 letr, the future of legal services education and training regulation in england and wales, p235. 80 tony king, ‘clinical legal education: a view from practice’ in linden thomas, steven vaughan, bharat malkani and theresa lynch (eds) reimagining clinical legal education (hart publishing 2018) 117-126. reviewed article – clinic, the university and society 79 legal work experience’.81 the value of what is learnt is dependent on what a student is exposed to whilst engaging with cle and ‘the preparedness of the profession to recognize any distinction that such initiatives may bring’.82 these points have been reexamined in thomas’s research 83 which investigated the level of awareness and understanding of clinical legal education by legal recruiters. thomas’s research was in two phases, firstly there was a desktop review of 50 graduate recruitment webpages and, secondly interviews were carried out with 18 professionals involved in the recruitment of trainee solicitors and barristers. the interviewees came from a cross section of the legal market. from this research, thomas concluded that there was a ‘general lack of understanding displayed by interviewees on the subject’84. however, in contrast to francis’s opinion, once the interviews has progressed and the legal recruiters had a better understanding of what was meant by cle, ‘the majority of interviewees appeared to draw little or no distinction between experience generated through a clinical programme and experience with a law firm or chambers.’85 given this is a period of seismic change for the legal profession where the effects of globalization and new technologies will continue to disrupt the status quo and new 81 andrew francis, ‘legal education, social mobility, and employability: possible selves, curriculum intervention, and the role of legal work experience’ (2015) 42 journal of law and society 173, 196. 82 ibid 195. 83 linden thomas, ‘it puts the law they’ve learnt in theory into practice’: exploring employer understandings of clinical legal education’ in linden thomas, steven vaughan, bharat malkani and theresa lynch (eds) reimagining clinical legal education (hart publishing 2018) 127-154. 84 ibid 137. 85 ibid 143. reviewed article – clinic, the university and society 80 types of lawyers and legal employers have already and will continue to emerge. 86 we must develop our curriculum in accordance with what skills and competencies we would like our students to graduate with, helping to develop their employability. ensuring law programmes are relevant and innovative will be critical in attracting students and clinical legal education can play a key role in this as it has proven to not only be a successful pedagogical approach in the context of legal education but is also highly regarded by students and prospective students. it is more important than ever for law schools to work more closely with law firms to inform them of the benefits of cle, as is engaging in dialogue to better understand what they are looking for in graduates, and by going further than the large corporate firms in london. conclusion so how valuable is the law clinic experience in developing the skills necessary to transition to employment? francis’s work on legal work experience argues that whilst experiential learning in the form of clinical work can be ‘an effective way to develop knowledge and skills,’ in terms of the transformation of the employability of students from all backgrounds, ‘the value of what is learnt will depend on the work to which they are exposed, the ability of the student to identify what they are learning, and, ultimately, the preparedness of the profession to recognize any distinction that such 86 see richard susskind, ‘tomorrow’s lawyers: an introduction to your future’ (oup 2013) for some examples of possible future roles. reviewed article – clinic, the university and society 81 initiatives may bring.’87 he reflects that ‘legal recruiters instinctively saw traditional forms of informal traditional work experience as signaling “commitment” rather than valuing it for skills and attributes which might equally be developed in credit-bearing modules.’88 francis cites the importance of ‘additionality’, that is, the additional factor which makes students stand out to employers, and that ‘there is limited value in compulsory credit bearing ‘cultural capital’. 89 this makes somewhat depressing reading, when taken alongside the almost evangelical fervor with which students and ex-students talk of their clinical experiences at northumbria university as part of such a compulsory, credit bearing module. however, it is clear not all legal recruiters share that view 90 and for those students in post-92 universities such as northumbria, who can struggle to access appropriate work experiences, an in-house law clinic may have the potential to bridge this gap at least in part but only if students are able to ‘frame’ this experience appropriately when engaging with employers in the recruitment process. the enthusiasm with which alumni spoke of their experience in the law clinic, and the great value it was to them on entering employment in legal practice was striking; clearly clinic was worthwhile, and provided them with employability skills including 87andrew francis, ‘legal education, social mobility, and employability: possible selves, curriculum intervention, and the role of legal work experience’ (2015) 42 journal of law and society 173. 88 ibid 196. 89 ibid 201. 90 linden thomas, ‘it puts the law they’ve learnt in theory into practice’: exploring employer understandings of clinical legal education’ in linden thomas, steven vaughan, bharat malkani and theresa lynch (eds) reimagining clinical legal education (hart publishing 2018) 127-154. reviewed article – clinic, the university and society 82 a level of confidence which enabled them to use the experience as a ‘real life bridge between academic study and practice’. 91 the clinical experience appeared to have helped them to develop resilience in terms of dealing with new situations at the start of their legal careers. whilst proponents of clinic may cite the skills development side of clinic, it is likely (according to tomlinson) that success of graduates relies on the 'extent to which they can establish positive identities and modes of being that allow them to act in meaningful and productive ways’ 92 and that experiences in clinic help to affirm their emerging sense of workplace identity, and to withstand some of the challenging and 'potentially destabilising experiences’ 93 they may have on entering graduate employment. there was a multiplicity of views amongst employers about the value of clinic experience. employers are managing a situation of over-supply where excellent academic qualifications are assumed. increasingly these qualifications need to be accompanied by a range of ‘soft’ skills with considerable attention paid to interpersonal and communication skills.’94 the real task for employers is looking at areas of distinction and in this study, employers highlighted two such areas which were communication and commercial awareness. communication was seen as not 91 tony king, ‘clinical legal education: a view from practice’ in linden thomas, steven vaughan, bharat malkani and theresa lynch (eds) reimagining clinical legal education (hart publishing 2018) 117-126. 92 m tomlinson, ‘graduate employability: a review of conceptual and empirical themes’ (2012) higher education policy, 25(4), 407–431, 425. doi:10.1057/hep.2011.26 93 ibid 423. 94 louise morley, ‘the x factor: employability, elitism and equity in graduate recruitment, twentyfirst century society’ (2007) 2:2, 191-207, 205 doi: 10.1080/17450140701325782. https://doi.org/10.1080/17450140701325782 reviewed article – clinic, the university and society 83 only an essential skill but as a broad concept, with the view of the employer group being that ‘communication covers everything. you want someone who can actually get along with people.’ as brown et al highlight, this move towards the personality package 95 may create a system which relies more on habitus and socio-economic background than a meritocratic system. in relation to commercial awareness, the challenge for clinic is to provide more exposure to commercial realities. clinic experience can provide the skills to navigate the challenges of the world of work in a legal environment – if they can overcome the hurdle of securing employment. clinic can help with that hurdle as it should provide students with a convincing narrative with examples of experience linked to the real world of legal work. but at the point of recruitment, it does not appear, from this and other studies, to provide an automatic advantage across the board and with ever increasing numbers of students undertaking some form of clinical experience, the ‘additionality’ it offered in the past may become ‘standard’. these results suggest that students should not place an over reliance on the clinic experience as some sort of passport to employment, but see it as a testing ground for them to explore their future work identities, and springboard into their engagement with employment. 95 philip brown, anthony hesketh and sara williams 'employability in a knowledge-driven economy' (2003) journal of education and work 16:2, 107-126, 121. reviewed article – clinic, the university and society 84 this study covered a limited sample size of nine employers, but the responses echoed findings from other studies in relation to a mismatch between employer and student perceptions of work experience,96 in this case, relating to experience in a law clinic. by undertaking this pilot study, we have followed findley’s97 advice by exploring stakeholder perceptions of clinical legal education, particularly those of employers, to ensure clinic equips students with the requisite skills to begin their legal careers. as a law school which has built a reputation for the high quality of teaching and learning in the law clinic, and that has received numerous accolades for engagement with the community, outstanding student experience, and working with the local profession, there is clearly still work to be done in ensuring that students’ experience receives the recognition it deserves, and that students are fully aware of the recruitment environment, and utilise their clinical experience to its best effect. 96 andrew francis, ‘legal education, social mobility, and employability: possible selves, curriculum intervention, and the role of legal work experience’ (2015) 42 journal of law and society 173. 97 ka findley, ‘assessing experiential legal education: a response to professor yackee’ (2015) univ. of wisconsin legal studies research paper no. 1348 627. jill alexander and carol boothbyp0f abstract introduction what do we mean when we talk about employability? employability and legal education methodology results interrogating the relationship between cle and employability conclusion editorial clinical scholarship across contexts and borders elaine hall northumbria university, uk elaine.hall@northumbria.ac.uk our summer edition reinforces the idea of clinic as a liminal activity – one that takes place in schön’s ‘swampy lowlands’ of real world problems, complexities of practice and the development of services and solutions in response to immediate need. we often lament the liminal status of clinic, comparing it unfavourably with the established legal disciplinary camps. certainly, the performative and scholarly standards are clear for doctrinal lawyers but you only have to glance at the papers in this issue to realise that we are having a lot more fun. ben waters and jeanette ashton write in the shadow of legal aid cuts in england and wales but rather than simply critiquing the ‘justice gap’, they report on the implementation of the clock community legal companion scheme. in their paper, they look both at the social benefits of this project and also the educational potential for the students in terms of skills, employability and confidence. emma jones’ paper is also on the theme of innovation, drawing on the work of the open university’s open justice centre in the uk to provide online pro-bono opportunities for distance learning students. the creativity and ingenuity that has gone into the development of the ou’s suite of provision is quite remarkable and this paper should be a very useful resource. the next two papers look at the development of clinic in specific contexts. four lecturers from poland kamil mamak, katarzyna julia kowalska, ewelina milan and paweł klimek give a detailed and nuanced picture of the evolving place of clinic in private and public universities within the polish jurisdiction. meanwhile evan hamman from queensland reports on the collaborative development of clinic in china. both papers add to our understanding of the nature of clinic – which aspects are in aristotelian terms, ‘essence’ (without which it is not) and which ‘accidents’ (aspects depending on context). the next pair of papers speak to the responsive and dynamic nature of clinic: jan-gero alexander hannemann and georg dietlein from germany and james marson and katy ferris from england give insight into and perspective upon the refugee crisis, the roles that clinics are playing in the immediate services needed by refugees on their arrival and the variety of ongoing support that they need. clinical work makes great demands on the student and the supervisor and so it is timely that colleagues from italy and spain andrés gascón-cuenca, carla ghitti and francesca malzanibring us their excellent paper on the relevance of empathy. the clear use of theory and the powerful examples make this ideal reading to start the academic year – i will be putting it on the ‘boot camp’ reading list. finally in this edition, victoria roper reports from the second annual commercial law clinics roundtable at the university of sheffield, demonstrating the vibrancy of this form of clinic and the key role that law school clinics can have in supporting local economies. events reminders! turin will be hosting the upcoming 6th conference of the european network for clinical legal education (encle), entitled “clinical legal education: innovating legal education in europe.”, on 20th and 21st september 2018 in cooperation with the department of law of the university of turin (unito) and the international university college of turin (iuc). the programme is now live and the conference promises to be a wonderful opportunity. we hope to see you there and at the next ijcle conference hosted by monash university in melbourne, australia on 28th-30th november 2018. the theme of the conference is ‘adding value – how clinics contribute to communities, students and the legal profession’ follow this link for more details. 1 law clinics and refugees reviewed article – clinic, the university and society the development of refugee law clinics in germany in view of the refugee crisis in europe jan-gero alexander hannemann, university of goettingen georg dietlein, university of cologne i. introduction coming to an unknown country, seeking for refuge, having nobody anymore, because of the family murdered by a criminal regime, not being able to speak the language of the country, having no idea of the legal system – this scenario can put refugees in very difficult circumstances, especially if the refugees need legal advice concerning their situation. there is not only the pressure of getting along with the horrific experiences the refugee went through but sometimes even legal problems that have to be solved, sometimes problems that may decide whether a person can stay in the country or has to leave it. and most of the time small issues, like how to deal with certain formalities or what steps to undertake next, are in question. this is where law clinics, especially the specialized refugee law clinics, might help. ii. development of law clinics in germany law clinics and clinical legal education are a new and fast developing field within the german jurisdiction.[footnoteref:1] until 2008 law clinics were not allowed under a german law (rechtsberatungsgesetz) which partly goes back to the time of national socialism in germany that aimed at pushing jewish lawyers out of the legal advisory market.[footnoteref:2] in order to give legal advice (even free of charge or among relatives) you needed a state permission, which is available only to the members of the bar. the law did not provide any exception for free legal services (including those of law clinics), legal advice within the family or at least giving simple legal advice on specific topics which can be handled by non-attorneys (like the lllt-model in washington allows[footnoteref:3]). this led to the grotesque situation that a fully trained law graduate in germany who decided not to work as an attorney but a judge could not even give free legal advice to his son. in 1998 helmut kramer, judge at the higher regional court of braunschweig, started an initiative to have the rechtsberatungsgesetz declared unconstitutional: he – as a judge – gave free legal advice, indicated himself to the authorities, was punished with a fine of 600 deutsche mark (350 $) and brought this case to the federal constitutional court of germany, which in 2004 finally gave him right.[footnoteref:4] [1: see j.-g. a. hannemann / g. dietlein, studentische rechtsberatung in deutschland, jura – juristische ausbildung, vol. 39 (2017) p. 449 – 460; see also j.-g. a. hannemann / j. lampe, clinical legal education – observing, comparing and analyzing the differences in germany and china for each other's respective advantages, 2 asian j. legal education 157 – 169 (2015); u. stege, le développement du mouvement clinique en europe, in: xavier aurey (ed.), les cliniques juridiques 49 – 60 (puc caen 2015).] [2: original version: gesetz zur verhütung von mißbräuchen auf dem gebiete der rechtsberatung (law on the prevention of abuses in the field of legal advice, 13th december 1935), in: reichsgesetzblatt 1935 i p. 1478 seq.; later called „rechtsberatungsgesetz“ (act on legal services, since 1962); see weber, die ordnung der rechtsberatung in deutschland nach 1945 (tübingen 2010); simone rücker, rechtsberatung. das rechtsberatungswesen von 1919–1945 und die entstehung des rechtsberatungsmissbrauchsgesetzes von 1935 (tübingen 2007).] [3: a “limited license legal technician” is not a fully trained lawyer, but a trained and licensed person “to render limited legal assistance or advice in approved practice areas of law” (washington’s admission to practice rules, rule 28). the aim was to give (affordable) legal advice to those who are unable to afford the services of an attorney. at the moment (since their introduction in washington in 2012), legal technicians are authorized only to advise clients in family law cases (divorce, custody). the washington state bar association compares them with a nurse (which fits well into the image of a legal “clinic”): “think of them like nurse practitioners, who can treat patients and prescribe medication like a doctorwell-trained, qualified and competent professionals who can provide you with the help you need“ (see www.wsba.org/licensing-and-lawyer-conduct/limited-licenses/legal-technicians).] [4: federal constitutional court of germany (bundesverfassungsgericht), decision of 29th july 2004 (1 bvr 737/00), in: neue juristische wochenschrift 2004, p. 2662 (also see: http://www.bundesverfassungsgericht.de/shareddocs/entscheidungen/de/2004/07/rk20040729_1bvr073700.html).] in 2007 the german law of legal counselling was fundamentally reformed. since 2008 everyone is allowed to provide legal advice free of charge under certain conditions. § 6 of the german rechtsdienstleistungsgesetz says: “legal services which are not connected to paid activity (free legal services) are permitted. any person providing free legal service outside family, neighbourhood or similar close personal relations shall ensure that this legal service is provided by a person authorized to give such legal services, by a person with a qualification to judge or under the guidance (anleitung[footnoteref:5]) of such a person. guidance requires briefing and training as well as participation in the provision of the legal service depending on the scope and content of the legal services to be provided, as far as necessary in the individual case.” with this reform, the legislator explicitly wanted to allow charitable involvement in the field of legal advice which previously (at least for non-attorneys) was prohibited[footnoteref:6]. [5: the german word ”anleitung“ is a key word at this point, since it is crucial for the legal frame of legal clinics. “anleitung” basically means to guide someone. it is important to note that ”anleitung” (guidance) is not such a strong word like direction, supervision, instruction or monitoring.] [6: see deutscher bundestag (german parliament), bundestags-drucksache (parliamentary materials) no. 16/3655, p. 39 (http://dip21.bundestag.de/dip21/btd/16/036/1603655.pdf).] due to this change, law clinics became allowed in germany for the very first time. actually, this legal development was prepared by the jurisdiction of the german constitutional court (bundesverfassungsgericht) which stated that free legal advice (by a legally trained person) cannot be prohibited in general.[footnoteref:7] there used to be law clinics/first experiments even before 2008, but officially their interactions were illegal. since 2008, more and more law clinics were opened. since 2011 law clinics spread all over the country.[footnoteref:8] suddenly law clinics became more and more accepted within society, university and academic curricula. the first student law clinics have been founded – either on the initiative of universities or by students themselves. meanwhile almost every german law faculty has at least one law clinic. until 2016 there developed more than 132 law clinics, until 2018 even 152 – of which one can consider approximately 76 to be stable and long-lasting. in 2012 a few law clinics formed the german law clinic umbrella organization bsrb (bund studentischer rechtsberater)[footnoteref:9] which also publishes a journal about clinical legal education approaches in germany (german journal of legal education = gjle).[footnoteref:10] nowadays there are even first court decisions concerning clinical legal education.[footnoteref:11] [7: federal constitutional court of germany (bundesverfassungsgericht), decision of 16th february 2006 (2 bvr 1087/04 and 2 bvr 951/04), in: neue juristische wochenschrift 2006, p. 1502 (also see: www.bundesverfassungsgericht.de/shareddocs/entscheidungen/de/2006/02/rk20060216_2bvr095104.html).] [8: j.-g. a. hannemann, gjle [german journal of legal education] 2016, p. 199 seq. (b-s-r-b.de/wp-content/uploads/2016/06/gjle_vol3_2016.pdf).] [9: j.-g. a. hannemann / g. dietlein, studentische rechtsberatung und clinical legal education in deutschland, p. 31 seq. (springer berlin 2016); j.-g. a. hannemann / p. mertes, gjle 2014, p. 165; j.-g. a. hannemann / j. lampe, justament 09/2012, 16; j.-g. a. hannemann / g. dietlein, studentische rechtsberatung, ad legendum, vol. 11 (2014), p. 79.] [10: issn: 2509-8667.] [11: g. dietlein / j.-g. a. hannemann, njw [neue juristische wochenschrift] 2015, p. 1123 seq.] law clinics in germany usually have two interests: on the one hand, there are students who want to practice law (which they are taught at university), who want to gather first experiences and understand what it means to be a lawyer, on the other hand, law clinics always have a social and charitable component. law clinics also want to give access to justice.[footnoteref:12] this is why they are not only helpful in an academic system, but also in the legal system. [12: see frank s. bloch, access to justice and the global clinical movement, 28 wash. u. j. l. & pol’y 111 (2008); stephen wizner / jane aiken, teaching and doing: the role of law school clinics in enhancing access to justice, 73 fordham l. rev. 997 (2004).] law clinics are – like “legal technicians” – a good way to get an affordable (which means free) and limited legal advice.[footnoteref:13] these two aspects, the social and the academic one correlate with each other. the client is a concrete person with human dignity and a real problem that urges to be solved. this is also the reason why students prefer to work on real cases from everyday life than on pure academic cases. at least this is the experience of everyone who became a member of a law clinic. but even more important is the fact that students – in the very theoretical and fictional case-based legal education in germany – mostly learn more by working on real cases than on theoretical. the life is the best teacher. and real cases (in which something is at stake) are the best appetizers to deal with the theoretical basics. [13: cfr. footnote 3.] most of the cases law clinics receive are cases in the field of consumer law (purchases, rent, employment law etc.).[footnoteref:14] there are even a few approaches to deal with criminal law, which is still quite difficult in germany to do as a student.[footnoteref:15] this is related to the fact that in a criminal case only an attorney can obtain access to the files of the public prosecutor and may appear in court.[footnoteref:16] due to the importance of a penal judgement for the sentenced person, this seems to be justified. there are also various specialized law clinics which deal with internet law or start-ups.[footnoteref:17] another special type of law clinics are refugee law clinics which have acquired a high significance due to the refugee crisis in europe.[footnoteref:18] in 2016 about 37 specialized refugee law clinics offer legal advice especially to refugees.[footnoteref:19] [14: j.-g. a. hannemann, first statistical evaluation of the development of law clinics in germany, gjle 2015, p. 145 seq.] [15: the law clinic from the “freie universität berlin“ is for example offering legal advice in the field of criminal law (see http://www.jura.fu-berlin.de/fachbereich/einrichtungen/strafrecht/lehrende/momsenc/fu-law-clinic/index.html [01.09.2017]).] [16: j.-g. a. hannemann / g. dietlein, studentische rechtsberatung und clinical legal education in deutschland, p. 25 seq. (springer berlin 2016).] [17: j.-g. a. hannemann, overview of existing law clinics in germany (übersicht bestehender legal clinics in deutschland), gjle 2016, p. 199 seq.] [18: cfr. gjle 2017, p. 34.] [19: j.-g. a. hannemann / g. dietlein, studentische rechtsberatung und clinical legal education in deutschland, p. 31 seq. (springer berlin 2016).] the authors want to point out the importance of refugee law clinics within the german system, the legal framework of student legal counselling in germany, the background of the refugee law clinics as well as their benefits to society as a whole. map: the map shows the different refugee law clinic locations in germany. the size of the arrow indicates the number of law clinics at the specific place. surprisingly there is no city where two refugee law clinics are working independently from each other. every city has just one refugee law clinic, but sometimes several civil law / general law clinics (not specialised on refugee law). the map also shows that not in every city a refugee law clinics exists and that there are much more civil / general law clinics. this map does not show all civil / general law clinics in germany. iii. the refugee crisis in germany germany is an immigration country. in 2014 every fifth person (which is about 16 million people) has had at least one migration background within the family (which means that at least one member of the family had immigrated to germany since 1949 or had ancestors who immigrated since 1949).[footnoteref:20] 56 % of these people hold the the german citizenship. 44 % of all people who immigrated since 2011 have an academic degree, whereas in the german society “only” 24 % have achieved graduation. one could add that 28 % of immigrants do not have any professional qualification and 8 % no school graduation (often due to personal circumstances in the situation of persecution). [20: federal statistical office (germany), statistical yearbook 2014 germany and international, p. 42 (statistisches bundesamt, statistisches jahrbuch 2014 – deutschland und internationales).] while in former times foreigners often came to germany as immigrant workers (in order to work there for several years and later leave the country again which often did not happen), the massive immigration to germany in the years 2014 – 2016 was a refugee topic which has its roots in war, expulsion, political and religious persecution and also in social poverty.[footnoteref:21] the extraordinary number of refugees and asylum seekers from syria, iraq, afghanistan, albania and many other states in 2014 to 2016 led germany and whole europe into a pan-european refugee crisis. in the core time (october 2015 – september 2016) more than 50.000 asylum applications were monthly filed with the federal office for migration and refugees (bundesamt für migration und flüchtlinge = bamf).[footnoteref:22] overall, there were more than one million asylum applications in 2014 to 2016 (2014: 200,000 / 2015: 475,000 / 2016: 745,000).[footnoteref:23] about 300.000 asylum procedures are still pending in 2017. every month more than 25,000 hearings are held and more than 70,000 decisions on applications for asylum are made, of which over 40 % are positive.[footnoteref:24] this did not only lead to an excessive overload of the bamf, but of all parties involved in refugee management (municipalities, churches, private organisations) since the refugees were already in germany when applying for asylum. the discussion about the admission procedures for refugees and foreigners in germany was heated by the fear of terror and crime and polarized the entire country. one should note the particularly important role of the chancellor of germany angela merkel who stand up for the opening of europe for refugees against strong political resistance.[footnoteref:25] matthias m. mayer (bertelsmann foundation germany) remarks correctly: “merkel is clearly the face of germany’s refugee policy. before the summer of 2015, merkel’s style of politics was characterized by pragmatism and incremental steps, rather than following a sweeping political vision. now, in a departure from her usual style, merkel has made germany’s open asylum policy her personal political project—despite strong resistance from many quarters.”[footnoteref:26] [21: see patrick kingsley, the new odyssey: the story of europe's refugee crisis (london 2016). more data see: eurostat, asylum and first time asylum applicants by citizenship, age and sex annual aggregated data (rounded), http://ec.europa.eu/eurostat/en/web/products-datasets/-/migr_asyappctza] [22: federal office for migration and refugees (germany), asylum statistics 2 / 2017 (www.bamf.de/shareddocs/anlagen/de/downloads/infothek/statistik/asyl/201702-statistik-anlage-asyl-geschaeftsbericht.pdf).] [23: federal office for migration and refugees (germany), recent statistics 2 / 2017, p. 3 (www.bamf.de/shareddocs/anlagen/de/downloads/infothek/statistik/asyl/aktuelle-zahlen-zu-asyl-februar-2017.pdf).] [24: federal office for migration and refugees (germany), asylum statistics april 2017, p. 10 (www.bamf.de/shareddocs/anlagen/de/downloads/infothek/statistik/asyl/aktuelle-zahlen-zu-asyl-april-2017.pdf?__blob=publicationfile).] [25: see joyce marie mushaben, angela merkel’s leadership in the refugee crisis, 116 current history (2017), issue 788, p. 95 – 100.] [26: matthias m. mayer, germany's response to the refugee situation: remarkable leadership or fait accompli?, p. 6, in: bertelsmann foundation, newpolitik, may 2016, available at www.bfna.org/sites/default/files/publications/germanys_response_to_the_refugee_situation_mayer.pdf] germany is one of the richest countries in europe and has a tremendous responsibility (not only of historical nature). many citizens are concerned about the refugees and their life circumstances. but asylum law can also be abused. one has to differentiate between a refugee (someone who has to leave his country forcedly because he is persecuted or no longer safe) and general migration, especially the so called "economic refugees" (those who have a future in their country, but hope for a better life in another country). with regard to the limited availability of resources and capacities in every country, this distinction is a question of justice – as some refugees are really worried about their life, while others are only concerned about the quality of their life. this is why immigration needs regulation. in the area of (ordered) migration it is legitimate to look at criteria like language skills, school degrees, chances on the labour market etc. with regard to refugees these criteria are absolutely inappropriate. the aim is to protect human beings from persecution, regardless of whether the host country benefits from it. refugees are regularly confronted with a variety of complex legal issues which they cannot handle with – not only because of the language.[footnoteref:27] in 2013 approximately 51.2 million people were fleeing worldwide, of whom about 187,600 were accepted as refugees in germany.[footnoteref:28] in addition, 109,580 initial asylum applications were submitted.[footnoteref:29] from 173,072 in 2014[footnoteref:30] this number increased to 441,899in 2015[footnoteref:31] in germany. [27: refugee law clinic munich, annual report, p. 11 (http://www.lawclinicmunich.de/images/lawclinicmunich_jahresbericht_1415.pdf).] [28: unhcr global trends 2013, p. 13 (www.unhcr.de/service/zahlen-und-statistiken.html [01.09.2017]).] [29: federal statistical office (germany), statistical yearbook 2014 germany and international, p. 42.] [30: ibid., p. 41.] [31: ibid., p. 42.] the refugee crisis in germany is also accompanied by an overload of courts and public administration. for most judges and public officials the flood of asylum applications came surprisingly. resources are missing to answer all asylum requests in reasonable time. the refugee crisis led to a human resource crisis at some regional courts and regional administrations. this leads to the unacceptable situation, that in a large number of asylum procedures and court proceedings nothing happens for a long time. the average process time at some courts is already nine months, even if asylum seekers need fast solutions.[footnoteref:32] [32: see www.tagesspiegel.de/berlin/fluechtlinge-in-berlin-zahl-der-asylverfahren-vor-dem-verwaltungsgericht-steigt-stark/14671732.html.] especially since 2016 the administrative courts in germany (verwaltungsgerichte) have been overloaded with proceedings. every fourth asylum procedure goes to court.[footnoteref:33] in some administrative courts, asylum procedures account for two-thirds of all administrative proceedings (e.g münster[footnoteref:34], gelsenkirchen[footnoteref:35]). in many courts the asylum procedures have tripled from 2015 to 2016 (e.g. saarland[footnoteref:36]) or even quadrupled (like in berlin: over 9.000 asylum complains in 2016[footnoteref:37], 13.000 procedures pending[footnoteref:38]). by the way, a large proportion of all complaining asylum seekers are syrians who fight against the fact that they were only granted subsidiary protection, which does not entitle their families to come to germany for family reunion. in most of these proceedings, the administrative courts grant the applicants from syria the full asylum protection which is given to all refugees in the situation of political persecution. on the other hand, it has to be noted, that other refugees (mostly from albania, serbia, macedonia, kosovo, bosnia-hercegovina) bring an action to court, even though they know they have no chance of being recognized as asylum seekers.[footnoteref:39] asylum law and court processes, which give more time until to have to leave the country or being deported, can also be abused. [33: see www.zeit.de/politik/deutschland/2017-07/asylverfahren-verwaltungsgericht-richter-ueberlastung-flluechtling.] [34: see www.wn.de/muenster/2651382-4571-faelle-beim-verwaltungsgericht-asylverfahren-sorgen-fuer-klagewelle.] [35: see www.waz.de/staedte/gelsenkirchen/die-zahl-der-asylverfahren-nimmt-rasant-zu-id209297363.html.] [36: see www.focus.de/regional/trier/migration-saar-verwaltungsgericht-asylverfahren-zahl-verdreifacht_id_6451391.html.] [37: www.moz.de/artikel-ansicht/dg/0/1/1540175.] [38: www.rbb24.de/politik/beitrag/2017/08/verwaltungsgericht-berlin-kritik-bamf-asylverfahren.html.] [39: www.faz.net/aktuell/politik/inland/asylklagen-an-verwaltungsgerichten-auf-hoechststand-13755084.html.] iv. the development of refugee law clinics in germany also lawyers recognized that there is a lack in understanding the refugee law throughout germany. this is why they established specialization in the field of refugee law / migration law for lawyers (§ 14p fachanwaltsordnung).[footnoteref:40] [40: kai von lewinski, law clinics in der fachanwaltsausbildung – knappen als königsmacher?, gjle 2016, p. 53 seq.] this development underlined the importance of refugee clinics. more and more citizens became interested in this field and started to work for refugee law clinics, even people with no law background at all.[footnoteref:41] [41: boris paal, gjle 2016, p. 2.] v. the legal framework of refugee law clinics a great chance for the constitutional state, but also for the refugees themselves are the refugee law clinics which record a massive spread all over the country since 2013. the law of asylum in germany is relatively complex. since it is normally not component of the law curriculum at university, refugee law clinics organize their own courses in foreigners’ law, mostly in cooperation with attorneys who practice in this topic. these attorneys are often also willed to accompany and supervise the work of the refugee law clinic (which is necessary according to german law). the act on legal services (rdg 2007) allows law students (and actually everyone) to advise clients free of charge as long as they are guided by a person who is authorized to provide legal services or has the qualification as a judge which is to have passed the second state examination (e.g. every educated lawyer, judge, attorney at law, notary, public prosecutor). the legal question is how far such guidance by a lawyer has to be made.[footnoteref:42] this question has implications for the organization of the legal clinic, because if “guidance” really means strict supervision, the law students cannot really work independently on their cases and for the supervisor going through every little detail of the case (again) would not be efficient, especially when dealing with easy and standard cases. [42: see fn. 4.] on the other hand, a guidance that is not strict enough can lead to advisory errors which have to be avoided in the interest of the client who cannot assess the quality of legal advice. 1. the education that is necessary to work in a refugee law clinic refugee law is in germany not part of the standard academic curriculum for law students.[footnoteref:43] before students are allowed to work in a refugee law clinic, they have to go through one or two semesters of preparation courses which usually contain at least one lecture on refugee law as well as a weekly tutorial where students discuss cases with their supervisors / cooperating attorneys / professors.[footnoteref:44] some refugee law clinics provide “fast track” education programs, e.g. seven intensive weeks with a total workload of 42 hours.[footnoteref:45] many of them want their students to undertake an internship (with an attorney) before they are advising someone.[footnoteref:46] [43: schaich, gjle 2016, p. 156 seq.] [44: born, gjle 2015, p. 103; thomson, gjle 2015, p. 108; uzuner, gjle 2015, p. 113.] [45: thomson, gjle 2015, p. 110.] [46: uzuner, gjle 2015, p. 115.] a few law clinics also established cooperation with other refugee helping institutions where the students can already test their knowledge under lawyer supervision.[footnoteref:47] [47: born, gjle 2015, p. 103.] a few refugee law clinics are also educating people to be legal advisors who are not law students.[footnoteref:48] [48: born, gjle p. 2015, 104; uzuner, gjle 2015, p. 114.] since these law clinics are organised by students they have a statute and organise the refugee law clinic in the legal form of a registered association (“eingetragener verein”) which is a public registered, non-profit organisation and usually works independently from the prospective university.[footnoteref:49] this is to be considered the most common legal form for german law clinics in general[footnoteref:50] even though there is a strong trend for law clinics to enter a cooperation with the university.[footnoteref:51] [49: thomson, gjle 2015, p. 109.] [50: hannemann, gjle 2015, p. 138 seq.] [51: hannemann, gjle 2015, p. 138.] 2. why is working in a refugee law clinic an advantage to the students? the refugee crisis hit europe hard. the media are reporting about this topic on a daily base. especially young people are interested in helping to improve the situation or refugees and to set an impact.[footnoteref:52] this is mostly the first motive to work in a refugee law clinic. [52: uzuner, gjle 2015, p. 113.] in a few refugee law clinics it is also possible to get a certificate which can be recognized in the academic curriculum at law school / university as a law course or a legal internship.[footnoteref:53] such an internship is particularly interesting for german law students, as an internship / practical training of three month is required for the first state exam in law. [53: thomson, gjle 2015, p. 111.] the confrontation with asylum law (which is not part of the standard academic curriculum in law school) expands the horizon of students and can give them new motivation for their studies, since they recognize that legal issues can play an existential role in real life. but this is only a side effect of a refugee law clinic.[footnoteref:54] the main focus is on the concerns of the refugees, even if they are less interesting for law students or concern non-legal topics. however, this also leads to a small disadvantage of the refugee law clinics: the relevance of asylum law in the state exam is rather low (compared to consumer law or general civil law). [54: born, gjle 2015, p. 102.] 3. what cases are refugee law clinics working on? usually the refugees have concrete questions concerning the whole process of seeking asylum in germany.[footnoteref:55] after solving all the questions, they are accompanied through the process of seeking asylum by usually at least two members of the refugee law clinic who are supervised by a lawyer (mostly an attorney-at-law) who is specialised in asylum law.[footnoteref:56] [55: born, gjle 2015, p. 103.] [56: born, gjle 2015, p. 103.] refugee law clinics are helping people to cope with legal questions concerning asylum law. but it is not only the refugee law that is put into focus but sometimes even simple non-legal problems that occur, e.g. dealing with certain administrative matters that can easily become quite difficult. in germany, asylum law is a fundamental right for politically persecuted, protected by the constitution (art. 16a grundgesetz[footnoteref:57]). but only few people actually can rely on this fundamental right which is granted under certain conditions. in addition, refugees can derive rights from international and european regulations (1951 refugee convention, eu dublin regulation, eu regulations 2011/95/eu, 2013/32/eu, 2013/33/eu). all national regulations concerning refugees are bundled in the german asylgesetz (national asylum act 1992[footnoteref:58]) which is supplemented by the asylbewerberleistungsgesetz (act concerning aid / services for asylum seekers 1993[footnoteref:59]). important are also the regulations in the aufenthaltsgesetz (act about the residence, employment and integration of foreigners in the federal territory 2004[footnoteref:60]). [57: the “grundgesetz“ (fundamental law) is the constitution of the federal republic of germany, cfr. https://www.gesetze-im-internet.de/gg/art_16a.html.] [58: recently published in: bundesgesetzblatt i 2008, p. 1798 seq.] [59: original version: bundesgesetzblatt i 1993, p. 1074 seq.] [60: original version: bundesgesetzblatt i 2004, p. 1950 seq.] at the end of a asylum procedure, there is a decision which either allows the asylum seeker to remain in the country or not. there are different statuses that entitle a person to stay in germany for a certain period of time (status as a refugee, subsidiary protection, ban on deportation, recognition as asylum seeker with fundamental asylum right). and if the asylum seeker receives a negative decision concerning his request for asylum there is always the possibility to go to court. the court might alter the administrative decision. 4. asylum questionnaire quite often refugees need help with completing a typical asylum questionnaire. even though these questionnaires exist in several languages it is sometimes difficult to understand the legal terms which are used in such forms. especially if the asylum seeker has no specific education or never had to deal with administrative stuff. sometimes this can be confusing and difficult coming from a different jurisdiction. this is also a field which law clinicians will help in. 5. the hearing also refugee law clinics try to help their clients to prepare for the hearing (“anhörung”).[footnoteref:61] this is a very important step in the asylum procedure where the refugee will be interviewed by german administrative officials. within this hearing there are several experts estimating whether the refugee should receive the so-called asylum title or not. there are translators and even people from the particular region the refugee is referring to be his home region to estimate if the refugees is telling the truth. the hearing is of great importance since here will be made a decision whether the asylum seeker will be considered to be a refugee who is seeking for asylum because he is threatened in his country with death, bodily harm or discrimination. many asylum seekers only wish to improve their life circumstances. these are so called economic asylum seekers. these people have to go back to their countries because the places are reserved for those who otherwise will not be able to survive because of war and other disturbing circumstances. therefore, the translators are even investigating whether the dialect the person is speaking is authentic. moreover, the story how the refugee came to germany has to make sense. in case of doubt there are always an examination as well as several tests to find out if the asylum seeker belongs to the group of officially recognized refugees. the committee will even investigate on the language and especially the accent the refugee is speaking. experts know the habits in the particular region in detail. on that base one can find out if the truth was told or not. [61: hilb, gjle 2014, p. 126 seq.] based on the decision from this committee it might happen that the asylum seekers will be send back to his country. in this case the government will pay for his flight back and provide him sufficient money to start a new life back home. for asylum seekers who do already know that they will not be considered to be refugees there is the option to declare themselves to go back to their country of origin and then to receive an extra amount of money as motivation to go back home. if the person is officially recognized to be a refugee in germany he will receive a monthly payment as well as place to live for free. but what if something went wrong within the procedure of the hearing and due to misunderstandings or other circumstances the asylum seeker´s request for asylum will be denied? in this case one has to go as quick as possible to the courts before the asylum seeker will be send back to maybe even a country he does not belong to. 6. help on non-legal problems it is not easy to get along in a new country, when someone comes from a different jurisdiction. sometimes refugee law clinics have to help on non-legal problems. either in other fields of law (e.g. labour law or family law) or with general life questions like how to visit the doctor or receiving medicine. of course, there are even more random questions that might come up. refugee law clinics also help in these fields. vi. how do refugee law clinics work in germany? 1. proper training of students before legally advising refugees first of all, students who are involved in refugee law clinics can be divided into two groups. first group includes translators who help to translate documents, letters as well as conversations. these students do not have to be law students. in fact, it is not even necessary that they are students at university as long as they are able to help in translating, but most of translators in refugee law clinics are law students.[footnoteref:62] [62: hannemann, gjle 2015, p. 145.] the other group are students who want to give legal advice to refugees. these students – who already have studied law – nevertheless have to go through a special training in refugee law first.[footnoteref:63] this is necessary because refugee law is not part of the mandatory curriculum at law school / university. [63: see also hilb, gjle 2014, p. 123.] this training usually takes approximately one or two semesters. only after this training students have the knowledge and understanding of refugee law in order to be able to join meetings with refugees to provide legal advice. afterwards the students will usually receive a certificate which confirms their acquired skills and knowledge. 2. legal advice from students usually refugee law clinics have an open meeting once or twice per week to establish the first contact with refugees. afterwards the refugee law clinic will work with the asylum seeker until a decision was made and either asylum or no asylum has been granted. the concept of immediate legal advice without an ongoing relation [so-called: ad hoc advice][footnoteref:64] is not applicable here. [64: see hannemann, gjle 2015, p. 141.] but a refugee law clinic does not only deal with refugee law. also in other areas like civil law refugee law clinics try to help their clients. sometimes the refugees are seeking for advice concerning everyday life which might be different from how it used to be in their countries of origin. but also, medical or psychological help is needed. moreover, the refugee law clinic is helping to organise and prepare all meetings with the administration, preparing letters, helping to fill out forms as well as preparing the hearing of the refugee.[footnoteref:65] [65: see oehl, brj [bonner rechtsjournal] 02/2013, p. 152.] if the refugee law clinic is not able to help on a particular problem it may send the refugee to a helping institution which is more familiar with the particular problem. in germany refugee law clinics cooperate with catholic and protestant church institutions (caritas, diakonie) as well as welfare institutions and social initiatives. 3. the board of advisors there might come up situations in which students are not able to deal with a case anymore and the fully trained lawyer is necessary to help further. students are trained to understand, whether the case requires professional help from a lawyer or not. if there are any doubts they have to consult their advising lawyer. this is what the german law provides with “guidance”. therefore, it is helpful to establish an advisory board consisting of lawyers / law professors / attorneys / notary publics etc. in order to fulfil the legal requirements of the “rechtsdienstleistungsgesetz” concerning guidance / supervision. the members of the advisory board take the responsibility of guiding and supervising the practicing law students. to build up an advisory board is not a problem for legal clinics. most of lawyers are open-minded to this idea and feel honoured to work in a pro-bono-initiative. the idea of pro bono work of attorneys in germany is older than law clinics and respected by all lawyers. actually, many lawyers already work on pro bono projects (e.g. giving legal advice to a charity club for free). but not only lawyers are advising refugee law clinics. also, interpreters, translators and experts who are familiar with the appropriate cultures and nations are more than welcome to support the work of the refugee law clinic. 4. limitation of liability since refugee law clinics mostly cannot afford a liability insurance, the limitation of liability of the law clinic is a point to be considered. the law clinic does not get any financial return for the legal advice. neither the refugee can verify whether the legal advice from the law clinic is right. this indicates how important it is to deliver sustainable and well researched advice. the best measure to limit liability is good organisation of the clinic and good monitoring of acting students. nevertheless, one should also consider legal measures to limit liability. the different mechanisms of limited liability protect the practicing students as well as the advisory board. first of all the legal form of the refugee law clinic can already provide protection to a certain extent, if it is a legal form (corporate) that reduces liability for the advisor. without choosing a specific legal form the law clinic will – under german law – be considered as society / association with unlimited liability („gesellschaft bürgerlichen rechts”).[footnoteref:66] in that case the legal advisor (student) will be fully liable on his own. if the law clinic provides wrong legal advice, the law student will have to pay the damage on his own. that is why most of the legal clinics in germany chose corporate legal forms with limited liability, primarily a registered association (“eingetragener verein”), which is a non-profit legal person with limited liability of its members. most of refugee law clinics chose this legal form.[footnoteref:67] [66: see j.-g. a. hannemann / g. dietlein, studentische rechtsberatung und clinical legal education in deutschland 56 seq. (springer berlin 2016).] [67: ibid., p. 56.] besides the legal form there are other ways to protect the law students from legal liability. it is possible to make a contract with the client, that specifies the danger of law students giving legal advice. in this contract liability can be limited to intent and gross negligence. another additional way to protect the students who work at the legal clinic is to take out insurance with an insurance company for all cases the law clinic is working on. according to § 51 iv 1 bundesrechtsanwaltsordnung (federal law concerning attorneys) attorneys always have to be insured for at least € 250,000 in each case.[footnoteref:68] possibly, liability problems could also be solved through the insurance of the supervising lawyers. [68: see stephan weth, in: martin henssler/ hanns prütting, bundesrechtsanwaltsordnung, § 6 rdg no. 18 (beck münchen 2014, 4th edition); differently: hanns prütting, gutachten für den 65. deutschen juristentag 2004, p. g 48; volker römermann, njw [neue juristische wochenschrift] 2006, p. 3030.] vi. conclusion the field of refugee law clinics developed tremendously in germany within the last few years. nowadays one can find in almost every university city a law clinic and in most of them a refugee law clinic as well. germany is a country of immigration. this is one of the reasons, why germany is one of the economically strongest countries in europe. nevertheless, the refugee crisis from 2015 had a major impact on the country. right wing parties became stronger and for the very first time a right-wing party (afd) has entered german parliament due to the parliamentary elections in september 2017. the fact that this party received 12.6% of the votes shows that the refugee crisis is affecting and worrying many people. “when you come out of the storm you won‘t be the same person that walked in. that’s what the storm is all about“(haruki murakami). 160 183 foreword welcome to the summer edition of the journal for 2005. this edition of the journal: this edition of the journal continues to illustrate our commitment to coverage of clinical learning at its broadest. i am delighted with the sheer range of material that continues to be submitted, and which we are able to draw upon. i’m also particularly pleased to accept two very interesting student contributions to this edition of the journal. the clinical movement has always found strength in the high levels of support given to it by students, and it is right that in our reflection on our work we should be listening to the voices of those who learn in our clinics. in the first of the two student pieces, martin wilson reflects on his experiences as the beneficiary of the first irwin mitchell international clinical scholarship, which took him from northumbria university in the united kingdom, to work for a month at the springvale clinical programme run by monash university in melbourne. in the accompanying piece, adam wilson reflects on his experience in helping to organise the first of hopefully many national student conferences on clinic and pro bono in england and wales – and on the shared experiences of the student delegates. i would encourage readers to encourage their students to submit similar pieces for future editions of the journal, so that we can continue to learn from those we teach. elsewhere in this edition we have articles by nigel duncan, looking in particular at the issue of clinics and the learning of ethical practice; by phillip iya, examining the potential of clinics for enhancing the teaching of human rights in african law schools; and by james marson and his coauthors, taking a look at the particular issues arising in the long-running clinical programme at sheffield hallam university, alongside the potential for clinical teaching to impact on the on-going review of the funding of law teaching in english universities. in the clinical practice section of the journal, there is what i hope will be the first of a number of joint articles from lance robson and his collaborators on the different forms of clinical education in the scandinavian countries, along with articles by carol boothby on the specific aspects of running clinical work in the context of a housing repossession court, and from romulus gidro and veronica rebreanu on the clinical context in romania. continuing change: those involved with international legal education will be aware of the long-running review of legal education in england and wales by the law society. this wide-ranging review proposes a replacement of the current very tightly prescribed structures for legal training with a far more flexible outcomes-based approach. it has to be said that it is an approach that has largely been viewed with dismay by both the legal profession, who are concerned about quality suffering, and by the providers of legal training at the vocational stage, who see significant threats to the courses that they provide. within this debate, however, it is interesting that the high degree of support given by the review foreword 5 to the use of clinical education has been broadly uncontentious. for clinicians therefore, the review potentially represents an important stage in the move from a minority provision in english law schools, to a more significant aspect of the mainstream. the review falls short of the aba requirement for exposure of all students to live client work, but if the review does come to fruition – and that is a big if – it will potentially serve as a driver for the development of an english clinical movement which encompasses many more law schools in the jurisdiction. the 2005 ijcle conference – melbourne, 13–15th july 2005 this journal goes to press before the monash conference begins – but it is clear already from the number of people who are attending, and from the sheer range of different papers, that it promises to be a hugely informative and enjoyable event. i hope to have the opportunity to publish many of the papers from the conference in the next two editions of the journal – so if you weren’t able to attend, you will have the opportunity to read the papers. and for those of you who haven’t been able to come to melbourne this year, i hope to see you at the 2006 conference. any suggestions for a venue? philip plowden editor 6 journal of clinical legal education august 2005 foreword welcome to the second edition of the journal for 2004. the edinburgh 2004 conference: the continuing success of the journal was reflected in the continuing success of the journal’s international clinical conferences. the second of these was held in edinburgh in the summer of 2004 and attracted delegates from across the world, with papers from jurisdictions as diverse as the united states and uganda, south africa and the south pacific. the broad theme of the conference – who benefits from clinic? – was broad enough to encompass wide-ranging reviews of the development of the clinical method in legal training and of the development of a best practice models for clinic, alongside more narrowly focused papers on the development of clinical representation at housing representation schemes, and the particular issues of sustainability in setting up clinics in law schools. this edition of the journal: this edition of the journal draws on both this year’s conference and on last years’ – with roy stuckey’s masterful review of the development of legal education in the us and the uk, and its consequent impact on the development of clinic; with hugh brayne and adrian evans’ paper on the development of a quality-lite model for clinics; and with liz curran’s paper from the previous year’s london conference looking at the development of law reform work within one australian clinic. alongside these papers, readers will also find food for thought in ross hyam’s review of the potential for case management and assessment software to be used within law clinics as an integral part of the clinical process. finally, in the student review section, there is a short article from martin wilson, a northumbria university student, who was in the enviable position of having won the first irwin mitchell international clinical scholarship, a generous £1000 award which funded martin to spend a month during the summer of 2004 attending the springvale law clinic at monash university, enabling martin to reflect on the student experience at two different types of clinic in two different legal jurisdictions. his paper is a valuable reminder to all who work in clinic of how much we can all learn from one another. change of editor: this is the first edition of the journal where i have taken the helm as editor. i could not be more fortunate in my predecessor, cath sylvester, who will be known to many of the readers of the journal. cath was the founder editor of the journal, customarily a thankless task – but one which she carried out to the highest standard. the success of the journal has been due to her hard work over the first years of the journal’s publication, and to the support of the impressive editorial board which she put together. i know that i will be reliant on that work and on her continuing advice and support in the production of these future editions of the journal. foreword 99 the 2005 ijcle conference – melbourne, 13–15th july 2005 building on the huge success of the london and edinburgh conferences in 2003 and 2004, the 2005 conference is to be held in conjunction with the 8th australian clinical legal education conference in melbourne, victoria, australia. the title of the conference is: flowers in the desert: clinical legal education, ethical awareness and community service and the conference will bring together justice educators, clinical legal educators, ngos, community legal centres, legal aid lawyers and legal ethicists from both hemispheres, with the objective of expanding the impact of clinical legal education, operating in a multi-disciplinary ethical framework, in the re-invigoration of legal education, justice education and client service. specific themes for the conference will include the clinical-ethics interface, clinical sustainability, specialist clinics, political pressure on clinical programs, justice clinics, clinics as trojan horses in legal education, the clinical it environment, innovation and evaluation. the conference dates are 13 – 15 july 2005, and the conference will take place at the novotel, st kilda, melbourne. the registration fee will be $au 330 for payment by 31st march 2005, $au 420 thereafter. full information will be distributed in january–february 2005. in the meantime, enquiries from those who are interested in submitting papers or in attending, are welcomed by the conference co-convenors: adrian evans, monash (adrian.evans@law.monash.edu.au) and philip plowden, northumbria university (philip.plowden@northumbria.ac.uk). we look forward to seeing you there! philip plowden editor 100 journal of clinical legal education december 2004 conference paper practice report: clinic, the university and society live client clinics: bridging the gap nicola antoniou and patrick hassan-morlai1, university of east london, uk n.antoniou@uel.ac.uk p.hassan-morlai@uel.ac.uk abstract there has been a shift in attitudes towards clinical learning as part of the student learning experience at universities.2 some modern universities3 in the united kingdom now integrate practical based learning in their law degree programmes.4 kingston university london offers credits to its students as part of their law degree for participating in its law clinic. the view the university of east london (uel) adopts in preparing students for the world beyond the university is that “students do not deserve to be handed a flat-pack degree without any extras – they deserve a fully rounded education and that is what they will get if they come [to uel].”5 uel’s law clinic is a central vehicle to achieving this aim. 1 nicola is lecturer and law clinic supervisor and patrick is lecturer and law clinic director at the university of east london’s law clinic, lawcentre@uel.ac.uk 2 university of greenwich, university of huddersfield, university of westminster, are among the recent entrants to clinical legal education by opening new law clinics in 2013/2014. 3 following the enactment of the further and higher education act 1992, the terms: modern universities, new universities and post-1992 universities became part of the lexicon to describe the 35 polytechnics that were transformed to or conferred university status in the united kingdom. 4 the provision of law clinic is still voluntary for law schools in the uk just like it is in the usa. us law schools are not required by the american bar association (aba) to provide clinical legal education as part of law schools obligation to provide "substantial instruction in ... professional skills generally regarded as necessary for effective and responsible participation in the legal profession” [and] “substantial opportunities for live-client or other reallife practice experiences.” see standards 302(a)(4), 302(b)(1) of the aba section of legal education and admissions to the bar, aba standards for approval of law schools 18-20 (2005-06) cited by weigold, u. h. (2006) the attorney-client privilege as an obstacle to the professional and ethical development of law students, pepperdine law review, volume 33 (3), pp 676-722 at 688. 5 statement of professor patrick mcghee, (former) vice-chancellor and chief-executive of uel, july 2011. mailto:n.antoniou@uel.ac.uk mailto:p.hassan-morlai@uel.ac.uk mailto:lawcentre@uel.ac.uk this practice-based paper looks at the development of our law clinic, which is a live client clinic, how it works in practice and includes a breakdown of statistics in demographics and advice areas. we present a selection of cases as well as extracts from students and clients’ testimonials. drawing on the benefits from our clients and experience of our students, this paper concludes that the experience gained from working in the law clinic should be integrated into the academic content of the law school. we suggest that live clinics increase the quality and experience of our students’ learning. introduction if graduates are to meet the expectations of employers, then universities should acknowledge the virtue of learning by doing. confucius, the great chinese thinker, political philosopher and educator (551 – 479 bc) once said these words about the value of experiential learning (i.e. learning by doing): "by three methods we may learn wisdom: first, by reflection, which is noblest; second, by imitation, which is easiest; and third by experience, which is the bitterest.”6 although confucius’ model involves ‘imitation’ (which could arguably fit in with simulation7 clinic work), the full effects of experiential learning must involve reflection and experience. professor jeff giddings calls live clients ‘real clients’ and says “[t]he complexity of working with real clients should be seen as the logical 6 cited by hinett, k. (2002) developing reflective practice in legal education (edited by tracey varnava), coventry: uk centre for legal education, preface page. 7 simulation here is taken to mean as a form of clinical legal education where “students assume lawyer roles, usually involving the representation of hypothetical clients”, professor adrian evans, monash university, associate professor anna cody, university of new south wales, ms anna copeland, murdoch university, professor jeff giddings, griffith university, associate professor mary anne noone, la trobe university, and associate professor simon rice, australian national university (2012), report on best practices, australian clinical legal education (september 2012), p 4. progression of other studies involving the incremental development of practicerelated skills and understanding.”8 in this regard, we share the view of ursula h. weigold in observing that ‘simulations are not a substitute for live-client interactions, even though they certainly can add value to traditional law school teaching methods. role playing, even with skilled actors, does not have the feeling of reality and therefore does not demand as much from students as does live-client work. simulation does not involve the level of responsibility for results that live-client experience entails. "even the best simulationbased courses... provide make believe experiences with no real consequences on the line. simulation also lacks the complexity that leads to the depth of learning possible in experiences involving real clients. "we cannot be said truly to understand anything until we understand it in context and in complexity.’9 robert and farideh suggest that two highly effective experiential methods are livecase study projects and internships. the results of their study found that prior internship experience improve applied project learning outcomes and integrated skills and knowledge. 10 most, if not all, forms of experiential learning11 enable students to acquire valuable skills and experience. this is because for over 100 years, most if not all undergraduate legal education is exclusively delivered via the ‘case method’ of 8 giddings, j. (2010) why no clinic is an island: the merits and challenges of integrating clinical insights across the law curriculum, journal of law and policy, volume 34, pp 261-289 at 262. 9 weigold, u.h. (2006) the attorney-client privilege as an obstacle to the professional and ethical development of law students, pepperdine law review, volume 33 (3), pp 676-722 at 691. 10 robert, d.g., & farideh, a.f. (2012) experiential learning: the internship and live-case study relationship: business education and accreditation, volume 4(1), pp 13-23. 11 these include law clinic, internship, placements, simulation, etc. teaching law.12 the use of case method in legal education focuses on case analysis to identify legal principles from decided cases and to apply those principles to problem questions or essay writing to test the students’ knowledge and understanding of the law. it has been suggested that the exclusive use of analytical tools in the case method of legal education creates a skills gap in students. 13 skills such as managing file, conducting client interviews, drafting legal documents and legal advice, etc. which are clearly essential in a lawyer’s practice are not routinely taught as part of the undergraduate law degree. this creates gaps in law students’ skills acquisition and preparation to enter the world of work or to pursue the vocational stage of their training to become a lawyer. therefore, the experience gained from working in a live client clinic for example, bridges this skills gap. the development of the law clinic at uel uel established its law clinic to help the local east london community (renowned for its low socio-economic status compared with other affluent london boroughs14) by offering free legal advice. the law clinic was also created to enable our students to acquire legal work experience within a supervised environment. this facility enables our students to learn and practise the virtues of pro bono work for those members of the public who are unable to pay for legal advice and/or cannot get legal 12 ferguson, d.d. (2013) the state of experiential education in canadian law schools, manitoba law journal, volume 37 (1), pp 465 – 471, at 468. 13 ibid., pp 466 & 468. 14 london poverty profile 2013 available at http://www.londonspovertyprofile.org.uk/lpp_2013_report_web.pdf or http://www.londonspovertyprofile.org.uk/lpp_2013_findings_web.pdf (last accessed 01/04/2014). http://www.londonspovertyprofile.org.uk/lpp_2013_report_web.pdf http://www.londonspovertyprofile.org.uk/lpp_2013_findings_web.pdf aid to receive legal advice. the current phase of uel’s law clinic was launched in march 2010 and it started offering free legal advice in april 2010.15 but for the services our law clinic offers, some of our clients would not have had access to any form of legal advice. faculty and student attitudes uel provides staff at the law clinic a tremendous degree of autonomy and supports the law clinic with adequate resources to undertake its activities. the law clinic has not yet been able to obtain external funding and in the interim, the university provides all its running costs including employing one full-time and one part-time member of staff. as a local university to east london, uel is always finding ways of making itself relevant to its students, staff and local community by providing free services and facilities wherever possible. for example, uel regularly engage in campaigning that generate positive social change. uel has been part of the london living wage campaign and is the first university to ban payday loan marketing within its campuses. the establishment of uel’s law clinic is a further demonstration of the uel’s civic engagement programme to benefit both our local community and students. in addition, the funding to build university square stratford (the new home of our school of business and law) was secured partly because of our law clinic’s services to the local community. 15 new law clinic at uel offers legal advice to the local community (2014) available at http://www.uel.ac.uk/news/press-releases/2010/03/community.htm (last accessed 01/04/2014). http://www.uel.ac.uk/news/press-releases/2010/03/community.htm uel law students have come to appreciate the value of gaining experience in the law clinic. they demonstrate this by applying in big numbers to volunteer in the law clinic. recruitment is done through an open and competitive process whereby all law school students are encouraged to apply. our student volunteers also take an active role in organising our public legal education lectures. how our live client clinic works uel’s law clinic provides pro bono legal advice to members of the east london community. this service is provided by students under the supervision of professionally-qualified members of staff. the law clinic therefore offers students in the school of law and social sciences the opportunity to take part in hands-on legal work for the mutual benefit of the students and the wider community. our student advisers undertake a variety of roles including opening files, conducting clients’ interviews, preparing case notes, researching the legal issues of cases, and drafting advice letters. we support and supervise students’ work at every stage. for example, student advisers meet with their allocated supervising solicitor before and after a client interview to discuss issues in the case. the students will also meet with their supervising solicitor after their legal research and initial draft advice letter to consider, amend or approve before it is sent to a client. we also have external solicitors volunteering their time and expertise. our supervising solicitors are always present during our interview and advice sessions. our law clinic also has an administrator who supports both student and external volunteers to ensure the smooth-running of the law clinic. the law clinic offers its services via three main routes appointment-only advice service our students schedule clients’ appointments and conduct interviews during normal office hours on weekdays during term-time. the times for these appointments, are decided by a supervisor or the director in consultation with the student advisers. once an appointment has been booked the allocated student adviser would open a file and draft and send an appointment confirmation letter to the client. evening drop-in advice service the law clinic also runs a drop-in advice service. in 2013/2014 the drop-in service was delivered on wednesdays from 6pm-9pm. the 2014/2015 drop-in service will run on thursdays from 6pm-8pmthis service also runs during term-times only. our external solicitor volunteers attend our drop-in service. public legal education project (“know the law”) members of our community need not have a legal problem to know the law and so this project provides generic legal information and education to the public. this project hosts free public lectures on current, sensitive and engaging legal topics that are open to members of the public including solicitors, lecturers, students, teachers, and police officers. our public lectures now carry continuing professional development (cpd) points as our law clinic has been approved by the solicitors regulation authority (sra) as an external cpd provider. therefore legal professionals and solicitors in particular who attend these lectures can claim cpd points. this project is part of the uel’s civic engagement agenda.16 our first cpd public lecture in june 2014 was delivered by baroness doreen lawrence and dr imran khan (who is the patron of our law clinic) on the topic: “police corruption, inappropriate undercover policing and spying on victims’ families: the stephen lawrence independent review 2012–14 – meaning and impact”. the law clinic also held a public lecture when it was re-launched in november 2013.17 sir robin wales, mayor of newham delivered the keynote address on the legacy of the olympics and the value of volunteering. in february 2014 the law clinic held another public lecture on “the law on drugs offences, knife offences, and the principle of joint enterprise.” the lecture was delivered by solicitors from a leading criminal practice sonn macmillan walkers based in london. current areas of law we advise on the following areas of law: i. landlord and tenant disputes ii. employment issues iii. contract and consumer transactions iv. social security / welfare benefits v. debt advice (limited to the aims of our project called ‘be creditworthy’, namely guidance about how to stay in credit). 16 uel works towards being a leader in civic engagement and offers learning and advice and campaigns on issues that generate positive social change. 17 human rights lawyer imran khan re-launches uel law clinic (2013) available at http://www.uel.ac.uk/news/press-releases/2013/11/law-clinic.htm (last accessed 29/11/2013). http://www.uel.ac.uk/news/press-releases/2013/11/law-clinic.htm vi. family law vii. any other matter that comes through our drop-in advice session that we are able to provide generic information or referral services. training our student advisers receive training in the above areas of law and this training is provided by staff of the law clinic. our student advisers are also able to access the free cpd accredited training provided by lawworks, one of our external partners18. these are short courses on relevant areas of law. we also provide in-house training on clients’ interviews, procedures to follow after an interview, legal research, drafting advice letters, time-keeping and recordkeeping. as part of the training we advise our students to keep accurate, contemporaneous and up-to-date record so that anyone who picks up their file can readily understand it. the following checklist is a brief summary of what is expected of our students: • case details received by students and supervisor / director • prepare and keep research trail • pre interview meeting with students and supervisor / director • interview with client • post interview meeting with students and supervisor / director • students draft advice letter • advice letter checked by supervisor / director • advice letter returned to students to perfect and to be signed by students and supervisor/ director 18 http://www.lawworks.org.uk/ http://www.lawworks.org.uk/ • letter of advice sent to client • follow-up/case work students’ roles and conduct all students sign a volunteer agreement, which requires the students to confirm that they have read and understood all of the rules and policies in the handbook provided to them and agree to abide by them. professional and ethical matters we set out very clearly to our students that we owe a duty to provide a competent and professional service to all clients. although our law clinic is not regulated by the sra, we aspire to comply with the professional rules and code of conduct of the sra. all students at the law clinic will be working on client matters under the supervision of solicitors who hold practising certificates. students are advised to familiarise themselves with potential professional issues such as conflict of interests and client confidentiality. learning through doing and feedback although the law clinic provides a useful service to clients, its main purpose is to aid students’ learning. self-evaluation is a vital part of this process. we therefore ask all students to complete an evaluation form, which asks students to think about what they have achieved, what they could have done better and what they might have done differently. this evaluation also assists supervisors. students are also required to take part in a group evaluation meeting with other participants to discuss in general terms their involvement in the law clinic. students are told that learning from the experience of others is as important as reflecting on their own work. such meeting takes place at the end of the semester. supervising solicitors undertake file reviews and case management for each case and file that is worked on. the law clinic recently employed a legal administrator who is a former student at uel. our legal administrator helps with the file reviews and undertakes checks on completion and ensures that any outstanding matters or tasks are completed expeditiously and with diligence. each student is given a checklist so that they can see what needs to be achieved and completed before the file can be closed. at the end of each advice session supervising solicitors will feedback on the students’ performance during the interview and meetings. once advice letters are complete students also receive detailed feedback and suggested amendments from supervising solicitors on the quality of the advice letter. resources we have a number of resources at the law clinic that are available to students in order to carry out research and draft advice letters. books the law clinic has a collection of practice books which provide analyses of the practical application of law. previous advice letters the law clinic has a database of advice letters to act as a template or precedent for the purpose of continuity. lexis psl this is an online database of legal resources provided by lexisnexis, which is designed specifically for free legal advice centres / legal practices. lexisnexis through lawworks provides us this resource free of charge. advisernet this is a subscription cd-rom/online based resource purchased from citizens advice and has a large amount of information which is updated monthly. the core topics are: • communications • travel, transport and holidays • immigration and nationality • administration of justice • education • employment • discrimination, human rights and government • family and personal • welfare benefits and tax credits • health • housing, property and environment • taxes • consumer, finance and debt • leisure aims this is a case management system where all clients’ details are entered and stored. this is very similar to software used by law firms. students are able to familiarise themselves with this central system and benefit from using a central case management recording system. the law clinic is typically run like a law firm, which helps introduce our students into a legal work environment. however, we do not hold ourselves out to be a law firm. are results actually achieved? we provide below our statistics for the academic year 2013/2014 which show the percentages in relation to advice areas and demographics of our clients. the law clinic advised on a number of different areas of law over the past academic year as can be seen from the pie chart above. the most popular areas of law that 1% 1% 18% 3% 26% 9% 31% 11% advice areas asylum / immigration business / charity services, incl i.p., insurance etc consumer / contract debt and insolvency employment family / child housing / property, incl. wills and probate welfare/benefits clients seek advice on are housing/property, employment and consumer/contract matters. this is not a surprising result as these are areas in which civil legal aid has now diminished. the law clinic has recently been referred family law matters from a local county court. we anticipate that this area of law will be equally as popular over the next academic year. the total number of clients that the law clinic saw over the past academic year is 107 clients. this is a significant increase since 2012/2013 academic year, where the law clinic only assisted 17 clients. with the introduction of our evening drop-in service, we have seen a dramatic increase in the number of clients who require legal advice. 107 0 74 9 24 total number of enquiries received from service users returning clients provided legal advice provided general information could not help number of clients east london is a multi-cultural community, and this is reflective in our clients’ ethnicity as indicated above. we found that we have advised more men than women at the law clinic, although the difference has not been too disproportionate. white 20% asian 17% black 25% mixed race 10% other 12% would prefer not to indicate 16% ethnicity male 59% female 41% gender those aged 45-54 were our largest group of clients. clients aged between 18-24 and over 65 were less well-represented the majority of our clients did not consider themselves to have a disability. 2% 6% 18% 16% 22% 18% 1% 17% age under 18 18 – 24 25 – 34 35 – 44 45 – 54 55 – 64 over 65 would prefer not to indicate consider themselves to have a disability 5% do not consider themselves to have a disability 95% disability the law clinic at uel has undertaken a variety of interesting matters and the students have produced some very good results and received positive feedback. below are a few examples of the cases our student advisers dealt with. case 1: contract and consumer dispute this client had a dispute with one of the world’s largest web hosting companies, 1&1 internet ltd. the company had made several demands for outstanding payments for webhosting services and had even passed our client’s file to its nominated debt collection agents. our client disputed the amount and the basis for payment because they believed they had cancelled the contract many months ago. our student advisers reviewed the contract documents and were able to ascertain that the client had cancelled the contract and paid off money due for the services used. our students wrote to the company and its debt collectors and presented their findings of the client’s case. both the company and its debt collectors reviewed the client’s case and wrote back to us. the company apologised for the numerous payment demands and explained that those were sent in error on their part. the debt collectors also confirmed that the client had actually paid for all services provided and the file had now been closed. our client was very pleased with this outcome. case 2: employment this client spoke very limited english and worked as a cleaner. the client felt bullied at work by being asked to carry out manual-handling tasks contrary to their job description. the client felt that a language barrier meant they could not effectively convey their concerns to their employers. one of our student advisers who speaks fluent portuguese took the client’s instructions and provided the client with initial advice. the law clinic took swift action during the interview by telephoning the client’s line manager and raising the client’s concerns. we followed up this conversation with a letter to the employers. as we had been promised during the telephone conversation, the employers subsequently held an urgent meeting with our client and reassured the client that they would no longer be required to carry out tasks outside the scope of their contract. the client later informed us that their concerns had been resolved to their satisfaction. the client also informed us that they have been extremely happy with our involvement. our client told us of a new relationship with their employers who have entrusted them with more responsibility and increased pay – a form of promotion, in essence. case 3: landlord and tenant dispute (variation / termination of tenancy agreement) this client had entered into a tenancy agreement with a landlord’s agent. a dispute arose when our client’s request for permission to keep their pet in the property was refused. our client felt that they had been treated unfairly as other tenants had been allowed to keep pets in the property. our student advisers ascertained that the tenancy agreement provided for tenants to request the landlord’s permission to keep pets and that such permission should not be unreasonably refused. our student advisers wrote to the agents and raised this issue with them and requested the reasons for refusing our client permission to keep their pet when other tenants had been allowed to do so. as instructed, our student advisers also made it clear in their letter to the agents that our client would like to be released from the tenancy agreement and have their deposit returned if permission to keep their pet was refused unreasonably. we learnt from our client that following receipt of our letter, the agents reviewed their case and resolved the problem. our client sent us the following email: “i just want to thank you for your help the other day. i was in such a difficult situation and you and the legal team really helped me. the letting agency made contact with me last friday after receiving the keys and said that they are terminating my contract and will be returning my deposit first thing on monday morning. i have recently received a cheque from them”. [this extract is reproduced here with the permission of our client]. case 4: help with completing county court forms this client told us that they were desperate for help with completing their county court forms. they said they had suffered severe physical domestic abuse from their spouse and were taking steps to get a divorce. the client was a litigant in person and had submitted their divorce petition for the fourth time. on each occasion, the form was returned to the client because it had been completed incorrectly or key information was missing. our contact details were provided to the client by bow county court when the client visited the court. with appropriate supervision, student advisers assisted the client to check the form had been completed correctly this time. the client was also provided with generic information on the form in question and court procedure. we subsequently spoke with our client, who had this to say: “thank you very much, you have been a star. this has given me a headache since september but now all forms have been accepted by the court. i just want to say a huge thank you. i wanted to come in personally to thank everyone and would like to keep in touch”. [this extract is reproduced here with the permission of our client]. case 5: landlord and tenant dispute (unlawful deduction from rent deposit) our client contacted the law clinic for advice on a landlord and tenant matter and wanted to know how to recover a rent deposit paid from a former landlord/landlord’s agent. our client had entered into a tenancy agreement with a leading estate agent and two weeks after vacating the property they received an email from them detailing damage to the property for which they would be charged. the estate agents indicated that they would deduct £330 from the deposit of £875. our client sought advice on the legality of this. our student advisers sent a detailed letter of advice and as a result our client informed us that they were given a refund with an agreed deduction of only £100 for minor repairs to the flat. our client was very happy with the help the law clinic provided them and was glad that the matter was resolved. overall we have had many positive responses from our clients and this in turn has motivated both the students and the law school. the students’ efforts have been recognised and have given them a sense of achievement. what are the benefits of a live client clinic? how does this bridge the gap? the law clinic is mainly a vehicle for the study of law and of practice19. although the law clinic provides a useful service to the community, it is primarily about putting theory into practice, whilst allowing students time to reflect on their experience. it provides students with an invaluable opportunity to see how a case progresses in practice and how the skills that they will learn on the legal practice course (lpc), for instance, come together in the context of a client’s file. this is an ideal way of bridging the gap between university and the postgraduate diplomas in legal practice and obtaining either a paralegal position or training contract. 19 the higher education academy defines clinical legal education as an experiential form of learning “…in design focused on enabling students to understand how the law works in action by undertaking real, or realistically simulated, casework.”: http://www.ukcle.ac.uk/resources/teaching-and-learningpractices/clinic/one/ (last accessed 22/09/2013). http://www.ukcle.ac.uk/resources/teaching-and-learning-practices/clinic/one/ http://www.ukcle.ac.uk/resources/teaching-and-learning-practices/clinic/one/ within a law clinic setting, clinical legal education has also been defined as “a learning environment where students identify, research and apply knowledge in a setting which replicates, at least in part, the world where it is practised.... it almost inevitably means that the student takes on some aspect of a case and conducts this as it would ... be conducted in the real world.”20 these definitions of clinical legal education guide our students’ experience at uel’s law clinic. there are three principal ways in which our students learn from this clinical experience: i. work on real clients’ cases; ii. discuss their experience at follow-up meetings; and iii. evaluate and reflect on their experiences. depending on the case, our students have used some or all of the following skills: • interviewing; • factual analysis, i.e. problem-solving; • legal research; • letter-writing; and • negotiation and advocacy. 20 grimes, r. (1996) “the theory and practice of clinical legal education” in webb, j and maugham, c (eds.) teaching lawyers’ skills, london: butterworths (p 138) cited by lewis, r. (2000) "clinical legal education revisited", dokkyo international review, volume 13, pp149 – 169; also available at <http://hq.ssrn.com/groupprocesses/redirectclick.cfm?partid=340484&corid=649&runid=8368&url=http://ssr n.com/abstract=1988997>; <http://ssrn.com/abstract=1988997>; (last access 22/09/2013). another definition of clinical legal education is “learning by doing the types of things that lawyers do” brayne, h.(1998) clinical legal education, in leach, p. (2003) “the effective assessment of clinical legal education” investigations in university teaching and learning, london metropolitan university, volume. 1 (2) winter 2003, 62-65, cited by jaja, t.c. (2012) teaching legislative drafting: the necessity for clinical legal education, nials international journal of legislative drafting (nijld), volume 1 (1), pp 74-87 at 77 available at http://www.nials-nigeria.org/journals/legdrafttonye%20clinton%20jaja.pdf (last accessed at on 11/07/2014). http://hq.ssrn.com/groupprocesses/redirectclick.cfm?partid=340484&corid=649&runid=8368&url=http://ssrn.com/abstract=1988997 http://hq.ssrn.com/groupprocesses/redirectclick.cfm?partid=340484&corid=649&runid=8368&url=http://ssrn.com/abstract=1988997 http://ssrn.com/abstract=1988997 http://www.nials-nigeria.org/journals/legdrafttonye%20clinton%20jaja.pdf our students have also had the opportunity to develop office and administrative skills, team-working skills and the ability to manage time. in addition, our students have become familiar with some of the ethical and professional issues relevant to legal practice. at the end of the academic year, a total of eight student advisers at our law clinic provided feedback by completing questionnaire and scoring their experience from 1 5 (5 being the highest). the students were asked: legal research to what extent did the legal research that you conducted for your case improve your legal research skills? substantive law did your participation in law clinic work increase your understanding of the law as discussed during the law clinic training? problem solving did your participation in law clinic work increase your capacity to apply the law to practical problems? ethics and professional responsibility did your participation in law clinic work increase your awareness of the ethical and professional issues affecting a lawyer in practice? overall impression how valuable was the experience of your involvement in the law clinic? the results are as follows: 3 4 4 4 5 5 5 4 student 1 student 2 student 3 student 4 student 5 student 6 student 7 student 8 legal research scores out of 5 legal research 4 5 5 4 5 5 5 5 student 1 student 2 student 3 student 4 student 5 student 6 student 7 student 8 substantive law scores out of 5 substantive law 3 5 5 4 5 3 5 5 student 1 student 2 student 3 student 4 student 5 student 6 student 7 student 8 problem solving scores out of 5 problem solving scores out of 5 3 5 4 5 5 4 5 4 student 1 student 2 student 3 student 4 student 5 student 6 student 7 student 8 ethics & professional responsibility scores out of 5 ethics & professional responsibility scores out of 5 4 5 5 5 5 5 4 5 student 1 student 2 student 3 student 4 student 5 student 6 student 7 student 8 overall impression scores out of 5 overall impression scores out of 5 below are a few extracts from our student advisers about their experiences at the law clinic: “for every advice letter i wrote to the client the supervision has been fantastic. the guidance on how to properly interview the client was clear and specific. i am very proud to be a part of this team and to have such great supervisors to support me”, frederico maciel “being able to deal with real life clients has given me the confidence to step into the real world of work” and “the supervisors were down to earth and approachable, breaking the student /teacher boundary and communicating with you as a colleague”. kristian bogdanov “i enjoyed having the means to help vulnerable people in ways that they could not help themselves”. “i always knew that there was someone who i could ask for advice...my supervisor encouraged me and was very observant to the work i did ensuring that i felt valued and respected as a student volunteer”. lucie darrell “i enjoyed working in a professional and intimate setting and offering advice and aid to help the clients who would come to the law clinic... it was helpful and informative to work with the new volunteers and the more experienced advisers...anytime i would attend the law clinic supervisors were always there to assign tasks”. sophia eyiangho “on my first interview, the supervisors provided me with key questions which made the interview flow better. i have gained experience with research and administrative tasks”. ana leitao [the above extracts have been reproduced with the students’ permission]. the results from the student evaluation revealed that our student advisers felt that the experience at the law clinic had enhanced their legal research skills; understanding of the law; problem solving skills; and awareness of ethics and professional responsibility. previous students we have had previous students of the law clinic contact us after graduating from the university expressing their views about the positive experience they had at the law clinic and the effect that it has had on their job prospects. for example, after securing a position as a residential conveyancing paralegal, jessica payne wrote to us to say: “the experience i gained at the law clinic has been a great help to me in interviews and indeed i believe it played a part in helping me secure my new job.” the law clinic helped enhance both my confidence and my skills of communication...i have decided that property law is an area i want to focus my skills in and i hope to qualify as a licensed conveyancer next year.” what does the future hold? we suggest that clinical or experiential form of legal education is increasingly becoming a feature of undergraduate legal education. from the experience of our students, there are many benefits to be gained from actively advising real clients with real problems. this experience enables students to develop transferrable skills for work-life after their studies. law schools should therefore adequately prepare their students for the world of work. we propose that there should be a rethinking of the pedagogical structure of legal education so that some form of clinical experience (our preference being live client clinics) should be added to the curriculum and mainstream courses on the law degree. we suggest that live clinics increase the quality and experience of our students’ learning. kolb defines experiential learning as a “holistic integrative perspective on learning that combines experience, cognition and behaviour”.21 kolb argues that learning is a continuous process grounded in experience and a process in which knowledge is generated as new information and experiences are acquired.22 without reflection on experiences, students will not know how to improve. the reflection and evaluation logs that uel’s student advisers complete enables them to make sense of their experience and improve their knowledge and understanding of the law. kolb’s four stage learning cycle, namely concrete experience, reflective observation, abstract conceptualisation and active experimentation can be clearly identified in the way we run our live client clinic at uel. our student advisers have gone through these cycles several times: they have planned, acted, observed and reflected on their work. we believe our student advisers will take this experience with them to their 21 kolb, d.a. (1984) experiential learning: experience as the source of learning and development, prentice hall, englewood cliffs nj, p. 21. 22 ibid., p. 41. future places of work and hopefully this will contribute to making them better practitioners. lessons are learnt through adaptability and open mindedness; live client clinics enable the students to embrace this rather than a systematic approach to a problem23. advising clients in the local community requires deductive thinking and logical analysis of each case. our students learn from their experiences by reflecting and observing what they have done and why. students are encouraged to use logic and ideas to understand the problems. students will often draw conclusions and relate them to the law and research they have done. this then leads to action by them writing advice letters. this hands-on experience that uel students have had at the law clinic has not only boosted their confidence, and improved their research and writing skills, but also increased their employability. whilst we do not generalise from our own results, they do provide an example where such model live clients clinic can really benefit students. it is possible that in the future, students will benefit more from this experience by gaining credit for their work in the law clinic towards their law degree.24 23 akella, d. (2010) learning together: kolb’s experiential theory and its application, journal of management and organiszation, volume 16(1), pp.100-112. 24 other universities, such kingston university have already integrated credit bearing law clinic work into their curriculum. conclusion from the aforementioned, we maintain the proposition that live client clinics are beneficial in bridging the skills gap, as the unpredictability of working with real clients allows for a more realistic experience. live client clinics also offer students the opportunity to acquire legal practice skills they need to successfully pass the vocational stage of their training and use in practice as lawyers. furthermore, the live client clinics can be particularly good at providing students with opportunities to examine access to justice, quality of legal services issues, the development of ethical awareness and understanding of professional conduct rules. this enables students to bridge the gap between their theoretical studies and contextual application of law in the real world. in fact, those looking for any career in law will have the benefit of such practical experience. for those students who choose alternative career paths, skills such as file management, client interview, research, drafting, or office etiquette would still be relevant to most graduate employment. references akella, d. (2010) learning together: kolb’s experiential theory and its application, journal of management and organization, volume 16 (1), 100-112. brayne, h. (1998) clinical legal education, in leach, p. (2003) “the effective assessment of clinical legal education” investigations in university teaching and learning, london metropolitan university, vol. 1 (2) winter 2003, 62-65, cited by jaja, t.c. (2012) teaching legislative drafting: the necessity for clinical legal education, nials international journal of legislative drafting (nijld), volume 1 (1), 74-87. evans, a. cody, a. copeland, a. giddings, j. noone, m.a. and rice, s. (2012), best practices, australian clinical legal education. ferguson, d.d. (2013) the state of experiential education, canadian law schools, manitoba law journal, volume 37 (1), 465 – 471. giddings, j. (2010) why no clinic is an island: the merits and challenges of integrating clinical insights across the law curriculum, journal of law and policy, volume 34, 261-289. grimes, r. (1996) “the theory and practice of clinical legal education” in webb, j and maugham, c (eds.) teaching lawyers’ skills, london: butterworths (p 138) cited by lewis, r. (2000) "clinical legal education revisited", dokkyo international review, volume 13, 149 – 169 hinett, k. (2002) developing reflective practice in legal education (edited by tracey varnava), coventry: uk centre for legal education. kolb, d.a. (1984) experiential learning: experience as the source of learning and development, prentice hall, englewood cliffs nj. robert, d.g., & farideh, a.f. (2012) experiential learning: the internship and live-case study relationship: business education and accreditation, volume 4(1), 13-23. sturm, s. and guinier, l. (2007) the law school matrix: reforming legal education in a culture of competition and conformity, vanderbilt law review, volume 60 (2), 515-553. weigold, u.h. (2006) the attorney-client privilege as an obstacle to the professional and ethical development of law students, pepperdine law review, volume 33 (3), 676-722. online higher education academy: http://www.ukcle.ac.uk/resources/teaching-and-learningpractices/clinic/one/ (last accessed 22/09/2013) human rights lawyer imran khan relaunches uel law clinic: http://www.uel.ac.uk/news/pressreleases/2013/11/law-clinic.htm on 29/11/2013 (last accessed 29/11/2013) london poverty profile 2013: http://www.londonspovertyprofile.org.uk/lpp_2013_report_web.pdf or http://www.londonspovertyprofile.org.uk/lpp_2013_findings_web.pdf (last accessed 01/04/2014) new law clinic at uel offers legal advice to the local community: http://www.uel.ac.uk/news/pressreleases/2010/03/community.htm (last accessed 01/04/2014) http://www.ukcle.ac.uk/resources/teaching-and-learning-practices/clinic/one/ http://www.ukcle.ac.uk/resources/teaching-and-learning-practices/clinic/one/ http://www.uel.ac.uk/news/press-releases/2013/11/law-clinic.htm%20on%2029/11/2013 http://www.uel.ac.uk/news/press-releases/2013/11/law-clinic.htm%20on%2029/11/2013 http://www.londonspovertyprofile.org.uk/lpp_2013_report_web.pdf http://www.londonspovertyprofile.org.uk/lpp_2013_findings_web.pdf http://www.uel.ac.uk/news/press-releases/2010/03/community.htm http://www.uel.ac.uk/news/press-releases/2010/03/community.htm students’ roles and conduct professional and ethical matters learning through doing and feedback books previous advice letters lexis psl advisernet aims to what extent did the legal research that you conducted for your case improve your legal research skills? 105 autonomy-masterypurpose: structuring clinical courses to enhance these critical educational goals† leah wortham,* catherine f. klein,** beryl blaustone*** † the authors would like to thank stephen young, reference librarian at columbus school of law of the catholic university of america (cua), for his invaluable research assistance and barbara mccoy from the cua staff for her formatting of the numerous drafts� thanks also to joanna wood (cua 2011) and jeanmarie krowicki (cuny 2012) for their careful cite-checking and editorial suggestions� we deeply appreciate the thoughtful comments received from lawrence krieger� * leah wortham, professor of law, columbus school of law, the catholic university of america ** catherine f� klein, professor of law, columbus school of law, the catholic university of america, director, columbus community legal services and families and the law clinic� *** beryl blaustone, professor of law, cuny school of law, director, mediation clinic, main street legal services, inc� 106 international journal of clinical legal education issue 18 table of contents i� instrinsic and extrinsic motivation �������������������������������������������������������������107 ii� goals for legal education �������������������������������������������������������������������������������109 iii� autonomy, competence, relatedness, and purpose �����������������������������111 a� autonomy support �����������������������������������������������������������������������������������������������������112 b� competence support ���������������������������������������������������������������������������������������������������113 c� relatedness support ����������������������������������������������������������������������������������������������������115 d� supporting students’ need for purpose �����������������������������������������������������������������������116 iv� applying autonomy support to clinical education ��������������������������121 a� autonomy supportive vs� controlling teacher behavior ���������������������������������������������121 b� applying autonomy supportive behaviors to the “four ts” ���������������������������������������122 1� task (the first “t”) �����������������������������������������������������������������������������������������������������123 2� time (the second “t”) ������������������������������������������������������������������������������������������������124 3� technique (the third “t”) �������������������������������������������������������������������������������������������125 4� team (the fourth “t”) ������������������������������������������������������������������������������������������������126 v� guiding students’ competence and mastery in clinical courses ���127 a� understanding the dynamics of mastery and flow: professional self-regulation in lawyering ��������������������������������������������������������������������������������������������������������������������127 1� mastery as a mindset ������������������������������������������������������������������������������������������������127 2� achieving mastery involves pain �������������������������������������������������������������������������������130 3� mastery as an asymptote that will never be fully reached ������������������������������������133 b� teaching to mastery in professional role as a lawyer ��������������������������������������������������134 1� affirming law students’ capability ���������������������������������������������������������������������������134 2� explicit commitment to student & teacher’s joint responsibility for learning & clear communication about expectations ����������������������������������������������������������������137 3� deliberate attention to reducing “fill-in” ����������������������������������������������������������������138 4� taking time to verify understanding from supervision �������������������������������������������140 vi� relatedness and purpose ����������������������������������������������������������������������������������141 conclusion ��������������������������������������������������������������������������������������������������������������������143 107 autonomy-mastery-purpose: structuring clinical courses to enhance these critical educational goals “there is a science to what we do�” this article takes its name from the keynote plenary that the authors presented at the 8th international journal of clinical legal education conference held at northumbria university in july 2010� the presentation and this article link research on human motivation and well-being to the structure and methods of clinical legal education� the quote above is from a conference participant in response to a question that we posed to small groups at our plenary regarding how the concepts of autonomy support and mastery resonate with their experience in clinical education and legal education more generally� autonomy, mastery, and purpose are the “tripod of type i behavior” formulated by daniel h� pink in his 2009 book, drive: the surprising truth about what motivates us.1 pink postulates “type i” behavior as that driven by intrinsic, self-generated motivations as opposed to “type x” behavior directed toward extrinsic factors outside the self such as imposed production quotas, bonuses, competitions to “best” others, or avoiding punishments�2 pink develops a computer-operating-system metaphor to advocate “motivation 3�0” as an optimal organizing principle for 21st century business built on providing employees opportunities for autonomy, mastery, and purpose as opposed to an outmoded “motivation 2�0,” which assumes a controlling work environment based on the premise that people respond best to carrots and sticks�3 pink’s book cites examples of businesses structured to support autonomy, mastery, and purpose and describes their successes in enhanced creativity, innovation, retaining valued employees, and productivity�4 he contrasts such businesses with work places organized around specifically dictated job conditions and traditional structures where workers are subject to externally controlled rewards and punishments�5 pink provides an engaging, easily accessible entry to a body of social science literature on motivation, achievement, and feelings of well-being that also has been applied to legal education�6 this article seeks to provide user-friendly access to theory regarding the basic human needs for autonomy, mastery, and purpose as well as regarding intrinsic versus extrinsic motivation� the article provides examples of choices clinical teachers can make to promote student learning and feelings of well-being through methods supporting satisfaction of those basic human needs and encouraging students to find their self-driven motivations� 1 daniel h. pink, drive: the surprising truth about what motivates us 77-81 (2009)� 2 id� 3 id� at 17-21, 85 -141� carol wallinger frames the type of contrast pink makes to that between self-determination theory, outlined in this article, and the behaviorism “made famous by b�f� skinner�” carol l� wallinger, moving from first to final draft: offering autonomy-supportive choices to motivate students to internalize the writing process, 54 loy. l. rev� 820, 823, n� 10 (2008)� 4 pink discusses meddius, a “results-only work environment,” as an example of a business structured to support worker autonomy; green cargo, a company that provides its employees with “goldilocks tasks” to create an environment of “mastery;” and toms as an example of a company with “purpose�” pink, supra note 1, at 86, 118-19, 136� 5 pink, supra note 1, at 99, 101-02 (noting law firms and call centers)� 6 pink, a law graduate himself, cites to sheldon & krieger’s study of two law schools showing a relationship in differences in perceived autonomy to mental distress and favorable outcomes in grades and bar passage� pink, supra note 1, at 98-99 (citing kennon m� sheldon & lawrence s� krieger, understanding the negative effects of legal education on law students: a longitudinal test of self-determination theory, 33 personality soc. psychol. bull� 883 (2007)) [hereinafter understanding negative effects]� 108 international journal of clinical legal education issue 18 part i describes the difference in extrinsic and intrinsic motivation and reviews the negative effects of business and educational models assuming extrinsic motivation to be most effective rather than seeking to stimulate intrinsic motivation� part ii describes the carnegie foundation’s preparation for the professions project’s call for law schools to focus on law students’ sense of identity and purpose as part of their professional education, as well as noting the similar goal that students learn “how to be” as articulated by the tuning project of the bologna process regarding higher education in europe� part iii provides basics on the theory of human needs for a sense of autonomy, mastery, and purpose on which the rest of the article is based� part iv applies work contrasting autonomy-supportive teacher behaviors with controlling instructional behaviors to the clinical context� part v of the article draws on cognitive psychology, neuroscience, and learning theory to suggest four methods useful for assisting novice law students on the steep road to mastery of lawyering competence within the time constraints of clinical programs and the professional demands of client service� methods identified also contribute to satisfaction of students’ need for relatedness, which too often is undermined in other parts of law school� part vi extends the discussion of clinics’ potential contribution to the need for relatedness and focuses on clinical education’s capacity to support development of students’ sense of how a career in law can contribute to their sense of life purpose in being part of something larger than themselves� many of this article’s applications of theory to clinical teaching are from the clinics in which students provide client representation or are engaged in transactional legal problem solving under faculty supervision, the type of clinics in which professors klein and blaustone teach�7 we think, however, that clinical teachers will be able to see applications of the theory presented to the various types of clinical programs that exist around the world, e.g�, street law programs in which students teach community members and externship programs in which students work under the supervision of a lawyer in an organization external to the law school�8 we hope, like pink’s book, to offer an accessible gateway to a body of theoretical and empirical work that can help clinical teachers think critically and creatively about both their clinical program’s structure and their teaching and supervision� we hope to inspire teachers to think about ways they might apply this theory toward nurturing the type of life-long self-direction that motivates people to continually seek greater mastery and provides a sense of well-being both now and in the students’ future careers� 7 kevin kerrigan refers to such clinics as “full representation, in-house legal schemes�” he describes a number of clinical models in the united kingdom: simulation clinics, street law/law in the community initiatives, adviceonly clinics, representation services, externship/placement programs, mediation schemes, soup runs, campaign teams, letter writing help, innocence projects, and others� kevin kerrigan, “how do you feel about this client?” – a commentary on the clinical model as a vehicle for teaching ethics to law students, 2007 int’l j. clinical leg. educ. 7, 14 & nn� 46-52� 8 see generally the global clinical movement: educating lawyers for social justice (frank s� bloch, ed�, 2011) for discussion of a number of clinical models that have developed throughout the world� 109 i. instrinsic and extrinsic motivation our plenary in northumbria commenced with an excerpt from a “ted talk” presentation9 by daniel pink on “the candle problem” devised by psychologist karl duncker in the 1930s�10 this often-replicated experiment shows that external rewards like a promised financial payment can impede rather than enhance performance in solving problems requiring innovative, creative solutions�11 on the other hand, when problems have a clearly defined particular solution, external rewards can be an effective incentive�12 pink points out that much success in 21st century business will depend on creative, innovative solutions rather than mere production according to previously set procedures� while legal education requires rote learning of some building blocks of doctrine, procedural rules, and technique, ultimately lawyering requires deep conceptual learning that can be applied flexibly and creatively to new situations� lawrence krieger of florida state university has done pioneering research and writing in lawyer and law student distress and their relationship, not only to those individuals’ unhappiness, but also to unprofessional behavior as lawyers�13 as a service to law students, he self-publishes two booklets, the hidden sources of law school stress and a deeper understanding of your career choice, available to encourage distribution in law schools�14 while pink applies the considerable body of research in intrinsic versus extrinsic rewards to business settings, krieger’s pamphlets relate these concepts directly to law students� he challenges “the universal fallacy: that the road to happiness runs through the top of the class,” which encourages the notion of grades as the ultimate goal and 9 ted is “a nonprofit devoted to ideas worth spreading� it started out (in 1984) as a conference bringing together people from three worlds: technology, entertainment, design” and has since broadened its scope. about ted, ted, http://www�ted�com/pages/about (last visited dec. 12, 2011). 10 dan pink on the surprising science of motivation, ted (jul-aug�2009), http://www�ted�com/talks/dan_pink_on_ motivation�html� pink begins by describing his decision to attend law school as a “youthful indiscretion” and reports never having practiced law� but he frames his ted presentation as a lawyerly case for a reframing of the way we consider motivation� pink, supra note 1, at 42-43, 61 (description of the candle problem and further experiments by sam glucksberg)� 11 for an application of this theory in contexts from parenting to education and business, see generally alfie kohn, punished by rewards (1999)� 12 pink, supra note 1, at 60-69� 13 see generally lawrence s. krieger, the hidden sources of law school stress: avoiding the mistakes that create unhappy and unprofessional lawyers (2006) [hereinafter hidden sources]; lawrence s� krieger, a deeper understanding of your career choice (2006); lawrence s� krieger, human nature as a new guiding philosophy for legal education and the profession, 47 wasburn l� j� 247 (2007) [hereinafter human nature]; lawrence s� krieger, the inseparability of professionalism and personal satisfaction: perspectives on values, integrity and happiness, 11 clinical l� rev� 4125 (2005) [hereinafter inseparability]; lawrence s� krieger, institutional denial about the dark side of law school, and fresh empirical guidance for constructively breaking the silence, 52 j� legal educ� 112 (2002); lawrence s� krieger, psychological insights: why our students and graduates suffer, and what we might do about it, 1 j� ass’n legal writing dirs� 258 (2002); lawrence s� krieger, what we’re not telling law students – and lawyers – that they really need to know: some thoughts-in-action toward revitalizing the profession from its roots, 13 j�l� & health 1 (1998); lawrence s� krieger, taking inventory: the science of happiness, 20 gpsolo 66 (2003); sheldon & krieger, understanding negative effects, supra note 6; and kennon m� sheldon & lawrence s� krieger, does legal education have undermining effects on law students? evaluating changes in motivation, values, and well-being 22 behav� sci� & l� 261 (2004) [hereinafter undermining effects]� 14 these booklets can be ordered online at http://www�law�fsu�edu/academic_programs/humanizing_lawschool/ booklet2�html� autonomy-mastery-purpose: structuring clinical courses to enhance these critical educational goals 110 international journal of clinical legal education issue 18 measure of success in legal education�15 instead he cites the research that shows: a primary focus on external rewards and results, including affluence, fame, and power, is unfulfilling��� instead people who have a more “intrinsic,” personal/ interpersonal focus – on personal growth, close relationships, helping others, or improving their community – turn out to be significantly happier and more satisfied with their lives�16 in his psychology text understanding motivation and emotion, professor johnmarshall reeve summarizes in five paragraphs considerable research on four benefits of intrinsic motivation for which one easily can see direct application to legal education�17 first, the higher the intrinsic motivation, the greater the persistence in completing a task� second, people are most creative when they are motivated by “‘the interest, enjoyment, satisfaction, and challenge of the work itself – rather than by external pressures�’”18 creativity can be undermined by “being watched,”19 “evaluated,”20 “bossed,”21 or “rewarded�”22 third, intrinsic motivation “enhance[s] a learner’s conceptual understanding of what they are trying to learn��� [and] promotes flexibility in one’s way of thinking,23 active information processing24 and tendency to learn in a way that is conceptual rather than rote�”25 fourth, “[p]ursuing intrinsic goals (e.g., competence, relatedness, autonomy in life) leads to better functioning and higher psychological well-being than does pursuing extrinsic goals (e.g., financial success, social recognition, physical image)�”26 this positive relationship 15 krieger, hidden sources, supra note 13 at 4 (citing sheldon & krieger, undermining effects, supra note 13)� 16 id� 17 johnmarshall reeve, understanding motivation and emotion 112-13 (5th ed� 2009)� 18 reeve, supra note 17, at 113 (quoting teresa m� amabile, the social psychology of creativity 112 (1983))� 19 reeve, supra note 17, at 112 (citing teresa m� amabile, the social psychology of creativity 112 (1983))� 20 reeve, supra note 17, at 112 (citing teresa m� amabile, effects of external evaluations on artistic creativity, 37 j� personality & soc� psychol� 221 (1979))� 21 reeve, supra note 17, at 112 (citing richard koestner, et al�, setting limits on children’s behavior: the differential effects of controlling versus informational styles on intrinsic motivations and creativity, 52 j� personality, 233 (1984))� 22 reeve, supra note 17, at 112 (citing teresa m� amabile et al�, social influences on creativity: the effects of contracted-for reward, 50 j� personality & soc� psychol� 14 (1986))� 23 reeve, supra note 17, at 113 (citing kenneth o� mcgraw & john� c� mccullers, evidence of detrimental effects of extrinsic incentives on breaking a mental set, 15 j� experimental soc� psychol� 285, 285-94 (1979))� 24 reeve, supra note 17, at 113 (citing wendy s� grolnick & richard m� ryan, autonomy in children’s learning: an experimental and individual difference investigation, 52 j� personality & soc� psychol� 890 (1987))� 25 reeve, supra note 17, at 113 (citing carl benware & edward l� deci, quality of learning with an active versus passive motivational set, 21 am� educ� res� 755 (1984)); ann k� boggiano et al�, use of techniques promoting students’ self determination: effects on students’ analytic problem-solving skills, 17 motivation & emotion 319, 319-36 (1993); marteen vansteenkiste, et al�, examining the motivational impact of intrinsic versus extrinsic goal framing and autonomy-supportive versus internally-controlling communication style on early adolescents’ academic achievement, 76 child dev� 483 (2005)� 26 reeve, supra note 17, at 113� 111 is associated with less anxiety and depression and lesser use of alcohol,27 both subjects of considerable concern regarding law students and lawyers�28 ii. goals for legal education the carnegie foundation’s report, educating lawyers: preparation for the profession of law has stimulated considerable debate about legal education within the united states�29 the report on legal education is part of a comparative study with regard to several professions� the report posits the goal common across disciplines of “formation of competent and committed professionals�”30 applying that common goal to legal education, they recommend the teaching not only of legal doctrine and analysis, but also introduction to aspects of practice leading to acting responsibly for clients and formation of professional identity with values consistent with the fundamental purposes of the legal profession�31 the carnegie report observes that u�s� law schools “[i]n a relatively short period of time��� impart a distinctive habit of thinking that forms the basis for their students’ development as legal professionals�”32 the report cites the socratic method, the “signature pedagogy” for its strengths in rapid socialization, but also addresses its unintended consequences of encouraging simplification of the complexity of problems in the real world to abstract “facts” and obscuring social consequences and ethical aspects of legal practice�33 the report posits three “apprenticeships” as facets of training important for future lawyers: (1) an intellectual and cognitive apprenticeship focusing on knowledge and ways of thinking of the profession; (2) an apprenticeship of practice; (3) an apprenticeship of “formation” related to a sense of identity and purpose�34 the carnegie report finds legal education to have focused the most attention, and to have the greatest success, in the first� clinical education and some innovation in classroom courses have directed more attention to the second, although carnegie finds that the curriculum still suffers from a lack of integration�35 the report finds legal education most wanting with regard to the third apprenticeship of formation, education related to the ethical and social meaning of the profession�36 27 reeve, supra note 17, at 113 (citing tim kasser & richard m� ryan, further examining the america dream: differential correlates of intrinsic and extrinsic goals, 22 personality & soc� pysch bulletin 280 (1996) and tim kasser & richard m� ryan, be careful what you wish for: optimal functioning and the relative attainment of intrinsic and extrinsic goals, in life goals and well-being: toward a positive psychology of human striving (p� schmuck & k� m� sheldon eds�, 2001))� 28 see data and sources collected in todd david peterson & elizabeth waters peterson, stemming the tide of law student depression: what law schools need to learn from the science of positive psychology, 9 yale j� health pol’y, l� & ethics 357, 365-371 (2009)� 29 william m. sullivan et. al., educating lawyers: preparation for the profession of law (2007) [hereinafter the carnegie report]� 30 the carnegie report, supra note 29, at 13� 31 see generally id� 87-161 (chapter 3 describing the skills to be taught for competent practice and to gain the ability to exercise practical reasoning an judgment and chapter 4 regarding development of professional identity and purpose)� 32 id� at 186� 33 id� at 187-88� 34 id� at 27-29� 35 id� at 194-97� 36 see generally id� at 126-161� autonomy-mastery-purpose: structuring clinical courses to enhance these critical educational goals 112 international journal of clinical legal education issue 18 an important european initiative regarding higher education similarly articulates three types of educational objectives in higher education� the bologna process created the european higher education area in which 47 countries in europe and beyond now participate�37 a central aim was to create a system to facilitate credit transfer that would encourage students to study at more than one institution and in different countries during their academic career� the process also, however, has become a significant force for pressing an approach to teaching and learning that is focused on student outcomes, a perspective with considerable cogency worldwide�38 the tuning project was developed to facilitate credit transfers among participating universities in the bologna process, but it has proceeded to formulate generic competences that should be achieved by all types of higher education and competences specific to particular subject areas�39 similar to the carnegie report’s notion of the three apprenticeships, the tuning project identifies three categories of competences, upon which higher education across fields of study and professional training should focus�40 the first, akin to carnegie’s formulation of intellectual and cognitive apprenticeship, is knowing and understanding: theoretical knowledge, capacity to know & understand�41 the second, like carnegie’s apprenticeship of practice, is “knowing how to act”: practical application of knowledge to situations�42 the third is “knowing how to be”: guiding values, the social context of working with others, which sounds much like carnegie’s notion of formation�43 both of these influential educational visions stress that the educational venture should be measured by student outcomes and that the desired outcomes are more than substantive content and ability to think about and express understanding in particular ways� higher education should go further and consider what graduates of a particular educational program should be able to do in the practice of their discipline as well as what values graduates should consider in such practice and the interactions with other people that entail� 37 see http://www�ond�vlaanderen�be/hogeronderwijs/bologna/about/, the official website of the bologna process from july 1, 2007 through june 30, 2010 and http://www�ehea�info/, the current official website� 38 john biggs & catherine tang, teaching for quality learning at university 13 (4th ed� 2011)� 39 id� at 14� see http://www�unideusto�org/tuningeu/home�html, the tuning project’s website� 40 introduction to tuning 20, available at http://www�unideusto�org/tuningeu/images/stories/documents/ general_brochure_final_version�pdf� with its 122 pages and 785 footnotes, laurel s� terry, the bologna process and its impact in europe: it’s so much more than degree changes, 41 vand. j. of transnational l� 107 (2008) provides a comprehensive history of the bologna process through the article’s publication date, an identification of relevant stakeholders, and references to a wealth of source materials� as the article describes, the tuning project began as a pilot project by a group of european universities� it remains an independent project that is not part of the eu, council of europe, or unesco but has sponsored many conferences and produced many documents� terry, id� at 143-145� 41 introduction to tuning supra note 40, at 20� 42 id� 43 id� 113 iii. autonomy, competence, relatedness, and purpose decades of empirical studies have identified three important human psychological needs: autonomy, competence, and relatedness�44 theory underlying this research assumes that people interact constantly and dynamically with their surroundings, rather than a mechanistic view assuming that people react in a predictable and automatic way to changes in the environment�45 the environment in which people function may nurture development of these needs or disrupt and thwart it� our presentation and later sections of this article focus on “autonomy support” in the manner in which clinical teachers interact with students and programs are structured to enhance students’ interest in improvement, ability to formulate self-set goals, gain capacity for self-regulation, and so on� the presentation and article also discuss methods of mastery learning, a form of “competence support�” we address clinical education’s capacity for “relatedness support,” but we also focus on ways that law schools can and should contribute to students’ development of a professional identity that contributes to a sense of purpose in their lives� in the words of richard ryan and edward deci, pioneering researchers in this field, the needs for autonomy, competence, and relatedness “appear to be essential for facilitating optimal functioning of the natural propensities for growth and integration, as well as for constructive social development and personal well-being�”46 ryan and deci developed self-determination theory (“sdt”) to study what helps people to thrive and maximize positive motivation�47 sdt posits that thriving and positive motivation require “regular experiences of autonomy, competence, and relatedness�”48 pink’s tri-part formulation for the motivation 3�0 environment that stimulates optimum outcomes on creative tasks taps directly into sdt’s identification of autonomy and competence (mastery) concepts of basic needs� for the third component, he identifies a sense of “purpose,” which highlights the “authenticity” dimension of autonomy, being able to act in ways that feel consistent with one’s core sense of self�49 from an interview with psychologist mihaly czikszentmihalyi, pink quotes “purpose provides activation energy for living�”50 purpose often means working 44 richard m� ryan & edward l� deci, self-determination theory and the facilitation of intrinsic motivation, social development, and well being, 55 am� psych� 68, 68 (2000)� reeve, supra note 17, at 144-65� 45 in psychological theory terms, this contrasts organismic theory and a mechanistic one� reeve, supra note 17, at 143-44� 46 ryan & deci, supra note 44, at 68� 47 id� see also reeve, supra note 17, at 131-35� 48 sheldon & krieger, understanding negative effects, supra note 6, at 885� 49 see supra note 75-77 and accompanying text� 50 pink, supra note 1, at 134� autonomy-mastery-purpose: structuring clinical courses to enhance these critical educational goals 114 international journal of clinical legal education issue 18 toward something bigger than oneself, an end that will work toward the common good�51 pink points out that this may resonate in particular with the baby boomers nearing historical retirement age while many of them are still healthy and interested in continuing to work, but also with the population that comprise most law students: those called generation y, the millennials, or the echo boomers�52 in our application of concepts to clinical education, we consider how relatedness, in terms of building and maintaining positive relationships during law school, is important to learning and well-being, but also consider how the clinical experience can offer the activating energy of a sense of purpose� a. autonomy support in a study now well known to many u�s� legal educators, kennon sheldon and lawrence krieger applied self-determination theory to data collected from students in two american law schools�53 the results found that students at both schools “declined in psychological need satisfaction and well being” over the three-year period in law school�54 reports from the students at the two schools, however, varied in perceived autonomy support from faculty�55 students from the school with more perceived autonomy support reported a less severe decline in psychological need satisfaction over the three years�56 they also had reported more favorable feelings of well-being in the third year and had better grade performance, better bar exam results, and more self-directed reasons for their choice regarding the job they would seek after graduation�57 autonomy support is not the laissez-faire caricature that some use to dismiss it�58 it is considered to have three features, which will be described here with application to a teacher-student situation� 59 first, the teacher provides students with as much choice as is possible given the nature of the learning 51 two of the authors teach at the catholic university of america� the notion of “common good” is one of the basic principles of catholic social thought� pope john paul ii, encyclical letter, sollicitudo rei socialis (dec� 30, 1987) [hereinafter sollicitudo rei socialis] reprinted in catholic social thought: the documentary heritage 395 (david j� o’brien & thomas a� shannon eds�, 1992), available at http:// www�vatican�va/holy_father/john_paul_ii/encyclicals/documents/hf_jp-ii_enc_30121987_sollicitudo-rei-socialis_ en�html� 52 pink, supra note 1, at 135� 53 sheldon & krieger, understanding negative effects, supra note 6� 54 id� at 883� 55 id� 56 id� 57 id� see id� at 891 for discussion of interpretation of the grade differences at the two law schools� 58 johnmarshall reeve, self-determination theory applied to educational settings, in handbook of selfdetermination research 183, 193 (edward l� deci & richard m� ryan eds�, 2002) (citing mischaracterizations of autonomy support as “permissiveness, neglect, independence, or a laissez-faire interaction style”)� for such a mischaracterization of autonomy support, see nelson p� miller, an apprenticeship of professional identity: a paradigm for educating lawyers, 87 mich� b� j� 20, 21 (2008)� despite his distortion of autonomy support, miller’s article resonates with this article because his central thesis relates to carnegie report’s focus on an apprenticeship of professional identity and a connection between learning and purpose� the carnegie report, supra note 29, at 126-161� 59 sheldon & krieger, understanding negative effects, supra note 6, at 884; reeve, supra note 17, at 148-54� see wallinger, supra note 3 (application of the three features of autonomy support to a legal research and writing course); louis n� schulze, jr�,  alternative justifications for law school academic support programs:    selfdetermination theory, autonomy support, and humanizing the law school, 5  charleston l� rev� 269, 271 (2011) (application to law school academic support programs)� 115 situation and specific goal�60 second, when no choice can be provided given the nature of the task and situation, the teacher gives a “meaningful rationale” for why the task is necessary and no choice can be given�61 third, the teacher considers the student’s point of view, e�g�, learning proper citation may be boring and tedious, keeping careful notations in a client file can be difficult to discipline one’s self to do�62 johnmarshall reeve juxtaposes this definition of autonomy support with structure defined as “giving students clear expectations, optimal challenges, and timely and informative feedback as they attempt to make progress in living up to those expectations and challenges�”63 he describes autonomy support and structure as two different classroom elements that can be complementary and mutually supportive� autonomy support in legal education can, and likely best should, be combined with a structure of defined expectations, challenges that “stretch” the student, and feedback on performance� part iv of this article applies specific teacher behaviors found to be autonomy supportive or the controlling converse to clinical education� in doing so, part iv uses daniel pink’s framework of four dimensions of the workplace in which autonomy can be supported or thwarted: task, time, technique, and team� part iv considers autonomy supportive behaviors in teacher interactions with students and program design against these “four ts�” b. competence support the psychological need for competence refers to being effective in the way one interacts with one’s surroundings and the desire to “exercise one’s capacities and skills and, in doing so, to seek out and master optimal challenges�”64 mihaly czikszentmihalyi empirically derived the concept of “flow,” a state of deep concentration, absorption, and involvement generating considerable pleasure�65 research indicates that this state is reached when people engage in a task with a level of difficulty and complexity that is precisely right for [one’s] current skills and talents�66 figure one, which illustrates a ted talk by czikszentmihalyi, graphically shows this intersection of high challenge and high skill, while also showing the difference in states of being at intersections of lower challenge and skill levels� 60 sheldon & krieger, understanding negative effects, supra note 6, at 884; wallinger, supra note 3, at 839; schulze, supra note 59, at 323-24� 61 sheldon & krieger, understanding negative effects, supra note 6, at 884; reeve, supra note 17, at 148-54; wallinger, supra note 3, at 839; schulze, supra note 59, at 327-30� 62 sheldon & krieger, understanding negative effects, supra note 6, at 884; reeve, supra note 17, at 148-54; wallinger, supra note 3 at 839-40� 63 reeve, supra note 58, at 193-94� 64 reeve, supra note 17, at 155 (citing edward l� deci & richard m� ryan, intrinsic motivation and self determination in human behavior (1985))� 65 mihaly csikszentmihalyi, flow: the psychology of optimal experience (1990) [hereinafter flow]; mihaly csikszentmihalyi on flow, ted, (feb� 2004), http://www�ted�com/talks/lang/eng/mihaly_csikszentmihalyi_on_ flow�html [hereinafter flow ted talk] (ted talk by professor czikszentmihalyi on flow)� 66 reeve, supra note 17, at 155-58� autonomy-mastery-purpose: structuring clinical courses to enhance these critical educational goals 116 international journal of clinical legal education issue 18 figure one: mihaly csikszentmihalyi’s representation of states of being at differing degrees of challenge and skill and “flow” (focused concentrated, autonomous deep engagement) source: mihaly csikszentmihalyi on flow, ted, (feb� 2004), http://www�ted�com/talks/lang/eng/mihaly_ csikszentmihalyi_on_flow�html (ted talk by professor czikszentmihalyi on flow)� the capacity to reach the state of engagement in flow requires concerted skill building often including repetition and tedium�67 as previously discussed regarding autonomy support, a student may be helped by teachers explaining the rationale for why a particular skill must be acquired toward an important practical and challenging use in practice� this skill building may need a structured type of teaching rather than an open-ended one� structure has been defined as “(1) information about the pathways to desired outcomes and (2) support and guidance for pursuing these pathways�”68 research also reminds that encouraging people to engage in optimally 67 pink, supra note 1, at 124-25 (citing research on necessity of long years of practice on mundane tasks as necessary to building mastery in fields including sports, music, and business)� 68 reeve, supra note 17, at 159 (citing j�p� connell & j�g� wellborn, competence, autonomy, and relatedness: a motivational analysis of self-system processes, 23 self processes in development: minnesota symposium on child psychology 167 (1991); ellen a� skinner, development and perceived control: a dynamic model of action in context, 23 self processes in development: minnesota symposium on child development 167-216 (1991); ellen a� skinner, perceived control, motivation, and copying (1995); ellen skinner, et al�, individual differences and the development of perceived control, 63 monographs of the soc’y for res� in child dev� no� 2-3 (1998))� 117 challenging tasks requires an environment that “tolerate[s] (and even value[s]) failure and error making�”69 in discussing effective methods for the “cognitive apprenticeship” of law school, the carnegie report identifies four basic methods identified by cognitive theorists: 1� modeling – making the way of thinking visible 2� coaching – providing guidance and feedback 3� scaffolding – providing support for students who are not yet at mastery 4� fading – encouraging students ready to proceed independently70 while the carnegie report discusses these four methods in terms of case analysis in a doctrinal course, they have application to working with students on practice applications in a clinical course� pink uses “mastery,” which of course subsumes competence, but suggests a step beyond to confidence in one’s craft� part v describes pink’s three “laws of mastery” and presents four approaches to teaching to mastery in the professional role as lawyer drawing on work from cognitive psychology, neuroscience and learning theory� c. relatedness support johnmarshall reeve defines relatedness as, “the psychological need to establish close emotional bonds and attachments with other people, and it reflects the desire to be emotionally connected to and interpersonally involved in warm relationships�”71 some of the application of relatedness to law school entails the reminder to students, and their teachers, not to let work demands crowd out time needed to develop and nurture relationships with friends and family� but relatedness also refers to “gravitat[ing] toward people who [sic] we trust to care for our well-being, and��� drift[ing] away from those who we do not trust to look out for our well-being�”72 this notion of relatedness, of course, should apply to students’ trust that teachers have their best interests as people, as well as future lawyers, at heart� particular techniques described in part v are useful not only in enhancing students’ mastery of lawyering tasks, but also promoting students’ sense of teachers’ commitment to their learning and well-being in their future careers� clinical structure and teaching methods also often encourage student-to-student support and collaboration as a model for engendering support from colleagues in professional life� 69 reeve, supra note 17, at 159 (citing margaret m� clifford, failure tolerance and academic risk-taking in ten-totwelve year old students, 58 british j� educ� psychol� 15 (1988); margaret� m� clifford, students need challenge, not easy success, 48 educ� leadership 22 (1990))� 70 the carnegie report, supra note 29, at 63� 71 reeve, supra note 17, at 162 (citing roy f� baumeister & mark r� leary, the need to belong: desire for interpersonal attachments as a fundamental human motivation, 117 pyschol� bull� 5, 5-33 (1995); erich fromm, the art of loving 7-34 (1956); shan guisinger & sidney j� blatt, individuality and relatedness: evolution of a fundamental dialectic, 49 am� pyschol� 104 (1994); richard m� ryan, the nature of the self in autonomy and relatedness, in the self: interdisciplinary approaches 208, 208-38 (j� strauss & g� r� goethal eds�, 1991); richard m� ryan & c� l� powelson, autonomy and relatedness as fundamental to motivation and education, 60 j� experimental educ� 49, 49-60 (1991); harry s� sullivan, the interpersonal theory of psychiatry 16-20 (1953))� 72 reeve, supra note 17, at 162� autonomy-mastery-purpose: structuring clinical courses to enhance these critical educational goals 118 international journal of clinical legal education issue 18 the concept of relatedness also “extends to relationships with groups, organizations, and communities�”73 students’ evolving sense of how their work as lawyers can benefit not only individual clients, but also impact similarly situated people and communities supports this type of relatedness� in addition, this vision of their work’s potential impact nurtures the sense of purpose, which pink highlights as the third important component of environments encouraging deep motivation to tackle difficult tasks� d. supporting students’ need for purpose kennon sheldon and tim kasser, leading authors in motivation and self-determination theory, have linked the body of their empirical work and that of fellow scholars working in positive psychology to the theories of humanist and existentialist psychologists such as carl rogers, abraham maslow, eric fromm, r�d� laing, and rollo may�74 they point out that sdt’s contrast in intrinsic and extrinsic motivation mirrors the humanist and existentialist focus on authenticity�75 sdt theory co-founder, edward deci, defines authenticity as “being the author of one’s actions – acting in accord with one’s true inner self�”76 but sdt does not assume the authentic ideal is the narcissistic person in love with her reflection in the water�77 intrinsic motivations often relate to helping others and achievement of some greater good� furthermore, intrinsic motivation is not static and unchanging� the carnegie foundation’s study of several professions, including law, assumes that “formation” with regard to a sense of identity and purpose is part of the mission of professional education� self-determination theory has developed a continuum of types of extrinsic motivation that can shed light on the process through which a law student might internalize motivation toward professional values� rather than a sharp dichotomy, figure two depicts a continuum of types of extrinsic motivation that lead closer to a sense of self through the psychological process of integration�78 73 reeve, supra note 17, at 161� 74 kennon m� sheldon & tim kasser, goals, congruence, and positive well-being: new empirical support for humanistic theories, 41 j� hum� psych� 30 (2001)� 75 id� at 36� 76 edward l. deci & richard flaste, why we do what we do: understanding self-motivation 4 (1995)� 77 sheldon & kasser, supra note 74, at 45 (disputing the characterization of theories of self-actualization and personal growth as narcissistic to the exclusion of ideas of duty and service to others)� 78 see also deci &flaste, supra note 76, at 4-7� 119 figure two: the self-determination continuum, with types of motivation and types of regulation� source: richard m� ryan & edward l� deci, overview of self-determination theory: an organismic dialectical perspective in handbook of self-determination theory 3, 16 (edward l� deci & richard m� ryan eds� 2002)� from the left of figure two, one sees first a state of amotivation in which someone has no motivation toward a particular goal or behavior� think of students just starting law school who, as yet, have no concept of, or motivation toward, writing in the manner deemed excellent in legal work� next we see external regulation, a form of extrinsic motivation with the “classic instance of being motivated to obtain rewards or avoid punishments�”79 think then of a student in a first-year legal writing course who is motivated by the desire to get a good grade, fears a bad grade, and wants to do whatever the teacher says to achieve these ends� as documented by sheldon and krieger’s work, external motivations of “impressing others, or gaining status and influence” impose stress and anxiety�80 introjected regulation is one step closer to intrinsic motivation� in this stage, people adhere somewhat to another’s demands to “think, feel, or behave in a particular manner�”81 they have internalized the external motivation and are concerned with meeting the expectations of others, but the behavior is not part of the individual’s integrated self� in this stage, first-year students might begin to understand and accept the standards for good writing learned in class 79 richard m� ryan & edward l� deci, overview of self-determination theory: an organismic dialectical perspective, in handbook of self-determination research 3, 17 (edward l� deci & richard m� ryan eds�, 2002)� 80 sheldon & krieger, undermining effects, supra note 13, at 264� 81 reeve, supra note 17, at 134� autonomy-mastery-purpose: structuring clinical courses to enhance these critical educational goals 120 international journal of clinical legal education issue 18 but still would be adhering to them from guilt or anxiety about how their performance will be evaluated by the teacher rather than accepting the standards and integrating them in their own sense of self� with identified regulation, people voluntarily decide that behaving or thinking in a particular way is important or useful and accepts those merits for themselves� this involves a “conscious valuing of a behavioral goal or regulation, [and] an acceptance of the behavior as personally important�” 82 at this stage, legal writing students would identify reasons why the standards for good legal writing match goals that have become their own� they might consider why this type of writing is persuasive and more likely to achieve desired results for clients� serving clients well would have become one of their own goals� the student already may be thinking of a type of client they hope to represent and considering why that type of service matches the students’ views of the public good� a student would accept that even the nitty-gritty of careful proofing, editing, and correct citation form are the standard to which written legal work is held and meeting them will further achievement of their own goals for client service� the student also may have begun to consider how such conventions, even if tedious, further useful ends, e�g�, clarity, convenience for checking authorities cited� integrated regulation occurs when people transform values and behaviors into their own� a behavior becomes coherent and congruent with one’s own values�83 so here, behaviors that initially were stimulated by external motivations have become internal� students understand the indicia of quality writing and adopt those as standards for their own� students start to gain inherent pleasure in meeting the challenge of expressing legal arguments clearly, logically, and persuasively� when structured practice has helped students to gain mastery of writing tools, applying those skills to a challenging task can trigger the sense of the joy of intense concentration that is “flow�”84 this continuum from external to increasingly internal motivation is not meant to be a developmental one with people passing through each stage when an external regulator is internalized�85 the concepts, however, offer legal educators a paradigm for thinking about how we may encourage law students to strive for excellence in performance86 while also encouraging them to embrace broader public goals to which their skills and support can be directed� the values students bring to law school are not the beginning and end of the process� with this perspective, our job as teachers is to explain why what we seek to teach is of value, provide a vision of ends to which that knowledge and skills could be put, and encourage students to consider if these values are ones congruent with their own sense of self� doing so contributes to students evolving sense of their own purpose in life and how their careers as lawyers will support their own sense of purpose� 82 ryan & deci, supra note 79, at 17� 83 reeve, supra note 17, at 134-35� 84 csikszentmihalyi, flow, supra note 65, at 83� 85 ryan & deci, supra note 79, at 18� 86 emily zimmerman develops an “enthusiasm paradigm,” as an additional construct to autonomy support for considering ways to encourage law student motivation� emily zimmerman,  an interdisciplinary framework for understanding and cultivating law student enthusiasm,  58  depaul l. rev�  851, 895 (2009)� the “enthusiasm paradigm,” comprises students’ interest and commitment for law study as well as “vitality,” defined as “subjective feelings of energy regarding law study�” id� at 857� 121 we can relate this paradigm of supporting and encouragement of students’ motivation and sense of purpose with concerns expressed with regard to lawyers and legal education� the carnegie report’s sharpest criticism of american legal education is its failures with regard to supporting formation of professional identity and purpose�87 carnegie quotes the definition of a professional lawyer from a 1996 report of the section on legal education of the american bar association on the teaching of professionalism: a professional lawyer is an expert in law pursuing a learned art in service to clients and in the spirit of public service; and engaging in these pursuits as part of a common calling to promote justice and public good�88 the first paragraph of the preamble to the american bar association model rules of professional conduct says, “a lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice�”89 both these formulations assume that a lawyer should aspire to purposes beyond personal advancement: service to other people in need of help as clients, but also to broader questions of the good of society and the quality of justice that the society provides� the previously described continuum from amotivation to integrated regulation, which transforms motivations that originated externally into intrinsic ones, assumes that people’s motivation and values can change over time rather than being fixed at adulthood� with its challenge for law schools to focus on the third “apprenticeship” of professional identity and purpose, the carnegie report disputes the notion that law schools should shy away from engaging students on values questions�90 carnegie cites ethics curricula developed in other professional schools that have produced empirically-validated increases in student’s ability to exercise moral judgment�91 one model cited is that of james rest, muriel bebeau, and others who built on lawrence kohlerg’s work on the development of moral judgment to formulate a four-component process for ethical education programs in the professions�92 the four components are as follows� 87 the carnegie report, supra note 29, at 126-161� 88 the carnegie report, supra note 29, at 126 (quoting american bar association, section of legal education & admission to the bar, teaching and learning professionalism: report of the professionalism committee 6 (1996))� 89 american bar association, model rules of prof’l conduct 1 (2010)� 90 see the carnegie report, supra note 29, at 129, 135-36 (criticizing a faculty view equating “efforts to support students’ ethical development with inculcation, which they see as illegitimate and ineffective”)� 91 the carnegie report, supra note 29, at 133-34 (citing muriel j� bebeau, influencing the moral dimensions of dental practice, in moral development in the professions: psychology and applied ethics 121 (james rest & darcia narváez eds�, 1994))� 92 for background on this model, see clark d� cunningham & charlotte alexander, developing professional judgment: law school innovations in response to the carnegie foundation’s critique of american legal education in the ethics project in legal education 79 (michael robertson, lillian corbin, francesca bartlett & kieran tranter eds�, 2011)� the formulations of the four component model in this article draw primarily on neil hamilton & lisa montpetit brabbit, fostering professionalism through mentoring, 57 j� legal educ� 102, 115 (2007) (citing james rest, background: theory and research, in moral development in the professions: psychology and applied ethics 22-25 (james rest & darcia narváez eds�, 1994) and muriel j� bebeau, promoting ethical development and professionalism: insights from educational research in the professions, 5 u� st� thomas l�j� 366, 393 (2008))� autonomy-mastery-purpose: structuring clinical courses to enhance these critical educational goals 122 international journal of clinical legal education issue 18 component 1� ethical sensitivity: the ability to recognize ethical issues� this includes “knowing the regulations, codes and norms of one’s profession, and recognizing when they apply,” as well as “the ability to interpret the reactions and feelings of others�”93 this is both a cognitive and affective process� component 2: moral reasoning: a capacity to see alternative courses of action, to realize conflicts inherent in various choices, to consider how people would be affected by each and think about which may be more morally justifiable both by individual and collective norms� component 3: moral motivation: giving sufficient importance to moral values that the professional is motivated to act on such values above self-interested ones such as wealth, status, or self-protection of oneself and one’s group�94 professional identity, “the degree to which the professional understands and internalizes the concepts of professionalism,”95 is an important factor in whether a person will be willing to act on those values over self-interest, fear, or other factors� component 4: moral character and implementation skills: this entails: whether the professional has sufficient persistence, ego strength, toughness, strength of conviction, and courage to implement his or her moral reasoning� a professional must also be able to determine an effective action plan and to carry out the plan� creative problem solving is critical for moral character and implementation�96 the first component encompasses issue-spotting and knowledge of relevant law, while the second concerns consideration of alternative courses and application, which is most easily made “real” in a clinical setting� the third and the fourth components highlight the importance of professional identity and purpose, not only as factors in motivation for law study, a zest for living, and sense of well-being, but also as requisites to the ability and willingness to act consistent with the standards and public purpose of a profession�97 93 hamilton & brabbit, supra note 92, at 115� 94 muriel j� bebeau, promoting ethical development and professionalism: insights from educational research in the professions, 5 u� st� thomas l�j� 366, 393 (2008)� 95 id� 96 hamilton & brabbit, supra note 92, at 116 (citing james rest, background: theory and research, in moral development in the professions: psychology and applied ethics 22-25 (james rest & darcia narváez eds�, 1994))� 97 see hamilton & brabbit, supra note 92, at 115-117 (citing robert kagan, the evolving self: problems and process in human development 30, 32 (1982) on stages of identity formulation in professionals)� 123 iv. applying autonomy support to clinical education a. autonomy supportive vs. controlling teacher behavior considerable empirical work has been done to apply the specifics of self-determination theory to teacher behaviors in the classroom and to consider the outcomes in students in classrooms of teachers who act in greater conformance to the principles of autonomy support� such research has shown: that students with autonomy-supportive teachers, compared with students with controlling teachers, experience not only greater perceived autonomy but also more positive functioning in terms of their classroom engagement, emotionality, creativity, intrinsic motivation, psychological well-being, conceptual understanding, academic achievement, and persistence in school�98 researchers have identified a number of instructional behaviors that differentiate teachers with autonomy-supportive style from teachers with a controlling style�99 these behaviors appear in figure three� 98 johnmarshall reeve & hyungshim jang, what teachers say and do to support students autonomy during a learning activity, 98 j. of educ. psych� 209, 210 (2006) (citing carl benware & edward l� deci, quality of learning with an active versus passive motivational set, 21 am� educ� res� j, 755 (1984); aaron e� black & edward l� deci, the effects of instructors’ autonomy support and students’ autonomous motivation on learning organic chemistry: a self-determination theory perspective, 84 sci� educ� 740 (2000); ann k� boggiano et al�, use of techniques promoting student’ self determination: effects on students’ analytic problem-solving skills, 17 motivation & emotion 319, 319-36 (1993); edward l� deci & richard m� ryan, intrinsic motivation and self determination in human behavior (1985); edward l� deci & richard m� ryan, the support of autonomy and the control of behavior, 53 j� personality & soc� pyschol, 1024 (1987); edward l� deci et al�, an instrument to assess adults’ orientations toward control versus autonomy in children: reflection on intrinsic motivation and perceived competence 73, j� educ� psychol� 642 (1981); wendy s� grolnick & richard m� ryan, autonomy in children’s learning: an experimental and individual difference investigation, 52 j� personality & soc� psychol� 890 (1987); patricia l� hardre & johnmarshall reeve, a motivational model of rural students’ intentions to persist in, versus drop out of, high school, 95 j� educ� psychol� 347 ( 2003); richard koestner, et al�, setting limits on children’s behavior: the differential effects of controlling versus informational styles on intrinsic motivations and creativity, 52 j� personality 233 (1984); marianne miserandino, children who do well in school; individual differences in perceived competence and autonomy in above-average children, 88 j� educ� psychol� 203 (1996); richard m� ryan & wendy s� grolnick, origins and pawns in the classroom: self-report and projective assessments of individual differences in the children’s perceptions, 50 j� personality & soc� pyschol� 550 (1986); and robert j� vallerand et al�, self determination and persistence in a real-life setting: toward a motivational model of high school dropout, 72 j� personality & soc� pyschol, 1162 (1997))� 99 see reeve & jang, supra note 98, at 210 (2006) (citing edward l� deci et al�, effects of performance standards on teaching styles: behavior of controlling teachers, 74 j� educ� pyschol� 852 (1982); cheryl flink et al, controlling teaching strategies: undermining children’s self-determination and performance, 59 j� personality & soc� pyschol� 916 (1990); and johnmarshall reeve et al�, autonomy-supportive teachers: how they teach and motivate students, 91 j� educ� pyschol�537 (1999))� autonomy-mastery-purpose: structuring clinical courses to enhance these critical educational goals 124 international journal of clinical legal education issue 18 figure three: autonomy supportive & controlling instructional behaviors source: this figure adapts a table appearing in johnmarshall reeve & hyungshim jang, what teachers say and do to support students autonomy during a learning activity, 98 j� of educ� psych� 209, 211 (2006)� as previously described the three general features of autonomy-supportive behavior (applied to an educational setting) are (1) providing as much choice as is possible given the nature of the learning situation and specific goal, (2) when no choice can be provided, the teacher giving a “meaningful rationale” for why the task is necessary and no choice can be given, (3) a teacher’s communication to students that the teacher is considering the student’s point of view�100 b. applying autonomy supportive behaviors to the “four ts” daniel pink’s applies the concept of autonomy in the business setting by positing four aspects of work: task (what people do); time (when work is performed); technique (how the work is done); team (with whom they work)�101 this four-part formulation provides a useful framework for 100 see supra part iii� a� 101 pink, supra note 1, at 93-94� 125 thinking about application of autonomy support to clinical education� consider the application of pink’s concept of autonomy’s 4t’s in a clinical legal education setting along with the autonomy supportive and controlling instructional behaviors identified in figure three� first, reflect on how clinical legal education operates in the client representation and transactional legal problem-solving clinics that are common in the united states, hallmarks being real clients with significant issues, real cases, and real courtrooms and agencies� these courses usually include a classroom component, but the class work is designed to further the application of the concepts, do group work, and provide an opportunity for students to share challenges and solve problems through discussion and case rounds� collaboration is encouraged� in the clinical setting, there are relatively few students assigned to a professor� the professor acts as the supervising attorney and as tutor, rather than as someone who is professing at or dictating to the student� students have regular case supervision meetings with their professors where they speak to their professors as colleagues and get critical guidance and feedback on how to direct and manage their cases� 1. task (the first “t”) beginning with autonomy of task, on an administrative level, the clinic, at the majority of law schools, is an elective course� cuny is one of the few u�s� law schools that require a clinical course� where clinic is an elective, students can choose whether or not to enroll in a clinic� whether or not a clinic is required, students usually have some choice about the kind of clinic in which they want to work� most law schools have a number of different clinical offerings� because of the frequent high demand for clinical courses, students often are allowed to prioritize their top choices� once enrolled in a clinic, the structure of a clinical course also promotes autonomy of task� in both cuny and cua clinics, for example, most students work in pairs on cases, advocacy projects and transactional work� clinical supervisors may promote autonomy of task in the clinical setting by asking the students to engage in taking initiative at all stages of their clinical work�102 specific ways to promote student autonomy in a clinical setting include giving students choices about what cases/ projects to work on� at cua and cuny, where case load and work demands permit, we often allow students the opportunity to select the types of cases we will look for in the intake process� we also encourage and allow students to set the agenda for supervision meetings, as well allowing them to control the order in which issues will be discussed� during supervision, teachers often ask students: “with which issue do you want to start?”103 where case load permits, both at cua and cuny, we sometimes give students the opportunity to select the types of cases we handle� this also can be done by giving students responsibility for choosing and developing aspects of the clinic classes on topics of interest to them – allowing them to be the “teacher” a clinical supervisor may also promote autonomy of task through devoting more time to listening carefully and fully attending to a student’s speech as evidenced by verbal/nonverbal signals of active and responsive information processing, coupled with allowing more time for the student to 102 reeve & jang, supra note 98, at 210 (2006)� 103 id� autonomy-mastery-purpose: structuring clinical courses to enhance these critical educational goals 126 international journal of clinical legal education issue 18 talk�104 these behaviors communicate to students that they have some control over what they are doing and that the teacher will not be dictating to them or telling them what to do� in a clinical setting there are frequent opportunities for professors to encourage student autonomy� typically there are regular clinic classes, multiple cases or projects, and frequent supervision meetings, resulting in numerous opportunities for clinical teachers to encourage student autonomy� behaviors that undermine autonomy of task include “uttering directives” or commands, and monopolizing the conversation and learning materials�105 control over learning materials may be addressed by having centralized student resources in the clinic library or computers system� as observed in our law school clinics the effect of these behaviors is that students are more interested in their work in large part because they had had a voice in choosing it for themselves and because they had the continued ability to direct their own work� 2. time (the second “t”) in terms of autonomy of time, on an administrative or structural level, a clinical course is typically very liberal and flexible� of course, this assertion is not absolute� a clinical course usually requires a certain number of hours in the clinic, or “work hours,” and class attendance� in the cua and cuny clinics, class sessions and rounds are combined into one time period and attendance is mandatory� nevertheless, in both programs, students are individually responsible for managing their time in the same professional fashion as lawyers manage their time in actual practice� 106 teachers may promote autonomy of time through the time a student is allowed to work in his or her own way, or the cumulative time the teacher invited or allowed the student to work independently and to solve problems in his or her own way�107 in a clinical setting, promoting autonomy of time means allowing students opportunity to set their own time tables and deadlines� of course, client work often comes with its own deadlines� these can be explained in regard to the second autonomy support indicia of the “meaningful rationale” for why things must be as they are� but imposing arbitrary and meaningless deadlines or continually reminding students of looming deadlines are teacher controlling behaviors rather than autonomy supportive� once enrolled, cuny and cua students find that their hours are done on the honor system� at both schools, the practice of keeping time-records varies among the clinics but the students are expected to work on the honor system� no one checks to see if students fulfill their required time commitment per week� students are required to provide the administrative staff and their professors with a schedule, but this functions mainly for the clients’ convenience and for the scheduling of clinical supervision� students also may work in the evenings, the early mornings, the weekends, or whenever their schedule allows� sitting in one’s chair in the law school clinic space is not a substitute for getting casework done� these autonomy-promoting behaviors communicate to students that they have a lot of control over their time� clinical supervisors guide students through the process of managing and planning their time to enable them to be successful� for example, in cua’s families and the law clinic, after the students have conducted a client intake interview 104 see discussion infra part v�b�4� 105 reeve & jang, supra note 98, at 210� 106 see supra part iii� c� 107 reeve & jang, supra note 98, at 210� 127 and decided with their supervisor to represent the client in a civil protection order hearing, the supervisor will ask them to identify all the tasks that need to be done to prepare the case for trial and then ask them to “plan backwards” from the trial date with deadlines to ensure that all can be done in time� in the cua and cuny clinics, students are not completely free from the tedium that accompanies timekeeping in many legal settings� students are expected to keep a chronological log that generally explains what they did and how long it took, but this is not nearly as laborious and menial as keeping billable hours in a law firm can be� because students work in pairs and do not always have the same hours, clinical professors explain, and students understand, that this somewhat boring task helps them move the case along and avoid duplicating work� chronological logs also provide subsequent students who take over cases with a quick history of the client’s case� students, therefore, have a “meaningful rationale,” for what could be a tedious task: quality client service and respect for their partner’s time� far from shirking responsibility, most students put in more than the required clinic hours because there is a real person and not just a letter grade on the other end of their work hours� in many situations, one can assume that the basic motivation of relatedness is providing plenty of intrinsic motivation to work hard and well for the client� 3. technique (the third “t”) in terms of autonomy of technique, most clinical professors give students a lot of supervision and thoughtful direction regarding their work on their cases and projects, however with a very long leash, allowing for a lot of room to explore and make mistakes� students have the sense that they have autonomy over the way they accomplish the goals of the case, even if it is with firm guidance from the supervisor� when students ask their supervisors how to do something or present a case strategy question, supervisors often ask: “what do you think?” “how can you begin to find out the answer to this question?” and other open-ended questions� this allows students to think critically about best practices, to experiment, to develop their own strategies, and to learn by trial and error� student attorneys can be creative, tenacious, and use methods that practicing lawyers would not because no one told them “that’s not how it’s done” several recent examples of students’ decisions to act in very persistent ways include: calling the cell phone of the assistant attorney general assigned to a clinic client’s child support case three times a day until they found out what was going on, students virtually camping out for hours on multiple days in a district attorney’s office until he signed off on a supplement b form that was required for a u-visa application and students proposing draft language to attorneys in order to overcome impediments to a settlement� of course, the supervising attorney will not let the students stray completely off course, but student attorneys perceive that while in the clinic they are the ones directing their work and the ones responsible for their cases� even the clinic classroom experience has a lot of group discussion and role play rather than lecture� the clinical student can access the law and the goals of the course through the perspectives and lessons learned from other students, as well as through their hands on experience� in clinic students are giving leeway to experiment with different techniques� often, in law practice, there is not a right or wrong way to proceed� one example that frequently arises in cua’s clinic is for the student to consider the choice of whether to ask an immigration client to write a first draft of her personal declaration or to have the student attorneys write a first draft themselves in autonomy-mastery-purpose: structuring clinical courses to enhance these critical educational goals 128 international journal of clinical legal education issue 18 the client’s voice� 4. team (the fourth “t”) last but not least, we examine autonomy of team� at both cua’s and cuny’s clinical programs, students in their first clinical semester are assigned a partner and a supervising professor� students are given the opportunity to say with whom they would not want to work, but the ultimate assignment of teams is left to the professor� so there is not much choice in the initial teaming decision, however, once teamed, the student attorneys may divide the casework as they wish based on each person’s skills and interests� at cua, although student attorneys have a particular supervising attorney, students may ask any of the clinical professors about their case issues� at cuny, students also are able to approach any of the supervisors in a particular clinic about their case� at both cua and cuny, some cases are handled jointed by two clinics and the consultation expands accordingly� by comparison to most doctrinal classes, our clinics are very flat, non-hierarchical organizations� furthermore, a student’s assigned partner is not the only person with whom the student can work on case issues� students work in communal spaces during their work hours and can swivel around in a chair and ask a question of anyone sitting nearby� student attorneys also are encouraged to reach out to community partners and relevant listservs to get answers� what is the result of this experience while the clinical student is in law school?108 in our clinics, we observe that productivity goes up� the clinical work is usually very interesting� students again have a full name� students have a professor who discusses their work and progress with them each and every week� students are encouraged to share opinions and perspectives with their supervisors and clinical colleagues on substantive issues and on lawyering techniques and strategy� students are supervised and supported, but most clinical students are given what feels like significant and meaningful control over their casework� students have real clients with whom they speak and advise� students build confidence that they can function as a lawyer, and many report that the clinical experience has validated their decision to become a lawyer� daniel pink would say that these opportunities for engagement promote autonomy� students are at least partially acting from the intrinsic motivation that the learning process itself is enjoyable� furthermore, students want their lawyering skills to get better and better because another person, a client, is depending on them to represent them� student attorneys want the best outcome for their clients� finally, the clinical student can experience what it is like to help a person whose life could be changed for the better because that student decided to go to law school! her work matters� she knows that she is being graded, but the importance of the grade pales in comparison to providing quality representation� sdt would say that students experience competence and relatedness need satisfaction, and the work has supported intrinsic values for personal development and altruism and helping others� in the clinic, students often report feeling tired because of working hard, but happy� so what is the result when the clinical law student enters the world of real legal practice? one cua graduate remembers clinic as an “oasis of practical work in a desert of textbooks�” first, the former clinical law student has something relevant to discuss in her job interviews� second, the former clinical law student can apply the legal practice skills she learned in the clinic, whether interviewing clients or witnesses, drafting pleadings and motions, preparing a trial 108 for a student’s perspective on the falc experience, see infra conclusion� 129 notebook, negotiating a settlement or conducting herself in the courtroom before a judge� she has learned how to interact with real clients, with real problems, and how to cope with clients sometimes breaking down in front of her because of those problems� she also has learned how to collaborate with colleagues and supervisors on legal issues� she is not completely new and inexperienced, and that is a huge advantage when transitioning to actual practice� she probably will not realize how significant until she gets her first job� one recent cua graduate, who worked in the clinic for two years, reported how exciting it was when she got her first job just after passing the bar, her supervising attorney at a washington, dc-area nonprofit introduced her to others by saying: “although she is new to our organization, she is not new to the legal practice�”109 a cuny graduate observed: “cuny school of law was an amazing training ground� virtually everything i did as a new lawyer (interacting with clients, drafting documents, working closely with colleagues) i had done already within the supervision and support of the law school� my placement through the health law concentration led to a post-graduate skadden fellowship project at the same organization� instead of feeling like the “new” attorney, i walked in on my first day ready to pick up exactly where i’d left off�”110 v. guiding students’ competence and mastery in clinical courses “we are what we repeatedly do� excellence, therefore, is not an act but a habit�” aristotle mastery does not happen in isolation from autonomy or purpose� autonomy means working on one’s own terms in the fullest sense of self-determination� mastery is dependent upon self-directed effort� in addition, full engagement in practice is dependent upon our sense of purpose or meaning derived from our belief that what we do has significance beyond ourselves� at some point, everyone has had the thought of “having wasted my effort,” which is a common reaction to effort that does not contribute to identifiable goals reflecting what we value beyond ourselves� pink’s framework of autonomy, mastery and purpose gives the law teacher/supervisor additional terms of reference when incorporating professional reflection on performance into the law students’ learning experience� a. understanding the dynamics of mastery and flow: professional self-regulation in lawyering 1. mastery as a mindset mastery is a mindset, not an end result� pink posits three “laws” of mastery: mastery as mindset, pain, and asymptote�111 we set the groundwork for the mastery as mindset when we focus on our individual learning process while doing a task rather than the reward for a task, e�g�, a grade, 109 conversation with laila leigh, former families & the law clinic student and 2010 graduate of catholic university law school, in washington, d�c� (march 17, 2012)� 110 written comments of rebecca price, esq�, 2002 graduate of cuny school of law (january 29, 2012) (on file with authors)� 111 pink, supra note 1, at 120-27� autonomy-mastery-purpose: structuring clinical courses to enhance these critical educational goals 130 international journal of clinical legal education issue 18 or only on the achievement of the task itself� from this perspective, learning is viewed as an investigative approach during which people stay open to revising their understanding through a cycle of preparation, doing and reflecting� usually people develop motivation to repeat this learning cycle because they observe their increased growth when using this open investigative approach� this growth entails increasing our awareness of internal thoughts including subjective reactions along with gaining more comfort in modifying our thoughts and decisions in carrying out tasks� pink further describes the mastery mindset as the desire to get better and better at something that matters�112 pink discusses mihaly csikzentmihalyi’s concept of “flow” in which people engage in activities that are self-fulfilling and thus generate motivation to stay involved in the task�113 czikszentmihalyi empirically derived the concept of “flow,” a state of deep concentration, absorption, and involvement generating considerable pleasures�114 research indicates that “flow” is reached when people engage in a task “with a level of difficulty and complexity that is precisely right for [one’s] current skills and talents � � ����”115 people experience flow as the total engagement in the doing of the task without self-consciousness and without a sense of time�116 pink uses csikszentmihalyi’s research to explain that we find flow when we undertake tasks at the appropriate level of intellectual challenge, which is neither too hard nor too easy�117 figure one, which appears in previous section iii�b on competence support, depicts the flow state at the intersection of high challenge and high skill� in these circumstances, we are reaching to be better, stretching the boundaries of our capacity� we become more proficient in performing specific tasks in resolving future challenges that differ from what we have encountered in the past� our capacity to concentrate increases when we revisit a particular challenge with a desire to repeat it� we are able to develop a nuanced understanding of a task when we mindfully repeat it and reflect on each effort� we become more able to resolve future challenges that differ from what we have encountered in the past� mastery is what people are referring to when they say they “were in the zone” in a specific activity� the exploration of this mindset has a long history in popular culture – particularly in the arts and athletics�118 “being in the zone” requires some level of familiarity with the task as well as sufficient challenge to trigger focused attention and stimulate the feeling of desire to do better�119 striving 112 pink, supra note 1, at 120-23� 113 pink, supra note 1, at 114-15; csikszentmihalyi, supra note 65, at 67-70; flow ted talk, supra note 65� 114 csikszentmihalyi, flow, supra note 65; flow ted talk, supra note 65� 115 reeve, supra note 17, at 155-58� 116 this does not mean that pain is absent from the experience of mastery as a mindset� see discussion infra part v�a�2� 117 pink, supra note 1, at 115� 118 for an illustration, see bernie williams, bob thompson & dave gluck, rhythms of the game the link between musical and athletic performance (2011)� bernie williams became a professional baseball player for the new york yankees, is an accomplished popular guitarist trained in classical methods, and is a music composer� he and his co-authors wrote this book as a guide to mastery in these fields but their observations are universally applicable� 119 cf� daniel gilbert, stumbling on happiness xiii-xvii, 31-58 (2005)� gilbert explains how we incorrectly make decisions based upon inaccurate assessment of future feeling states� he usefully reframes our understanding of “desire” and explains the growing body of research on “happiness�” gilbert is a social psychologist whose research emphasis in on cognitive bias� he is the harvard college professor of psychology at harvard university� 131 for competence in any activity requires deliberate and repeated reflection on how we performed those activities� thus we are able to fully mentally engage in our learning process because of our heightened sense of self-awareness through reflection� using analogies like “being in the zone” to discuss the learning process in achieving mastery helps law students understand that becoming a lawyer is a lifelong learning journey� “mindful learning” involves the active consideration of different points of view, being sensitive to context, welcoming new experience and making distinctions in resorting our understanding of information�120 students are viewed as active participants in the learning process, and they benefit from being prodded to consider their mindset when learning� this prodding actively models that self-awareness is essential for concentration and that learning does not happen when the individual is non-aware or acting on automatic pilot�121 when these characteristics are present, the individual has the feeling of being more in control of the learning process and a sense of self-direction in the midst of uncertainty in the endeavor�122 studies show that students retain more knowledge and are more engaged when instructors present information conditionally rather than in absolute terms�123 in the legal education context, krieger describes mindfulness as the state of being consciously open and attentive to one’s experience�124 he explains that mindfulness, or the capacity for metacognitive self-awareness, allows students to notice how they are doing in their learning, which enables more conscious choice in behaviors, attitudes, and identification of outcomes�125 krieger points out that maintaining awareness and perspective is a skill that improves with encouragement and practice�126 we often observe that law school experience diminishes our students’ fuller sense of self as an active agent in problem solving� many lose touch with the skills that they brought to the study of law� their self-confidence declines� as a result, law students often find it difficult to fully mobilize their internal resources when starting to perform as a lawyer� and because most traditional legal education does not afford the law student regular opportunity to actively engage in the practice of becoming a lawyer, the student becomes less connected to their learning processes and professional goals� 120 ellen j. langer, the power of mindful learning 4 (1997); see generally ellen j� langer, the power of mindful learning (1997)� the principle of mindfulness also is a developed theory in many religious contemplative practices, particularly buddhism� the buddhist concept of mindfulness is the heightened attention to both our internal sensations and our perceptions of external reality� buddhism focuses on contemplative practice which fosters self-awareness by which we gain wisdom� see generally alexander wynne, the origin of buddhist meditation (2007); andrew weiss, beginning mindfulness: learning the way of awareness (2004) [hereinafter beginning mindfulness]; thich nhat hanh, the miracle of mindfulness: a manual on meditation (mobi ho trans�, 1987) (1976)� 121 langer, supra note 120, at 4� 122 langer, supra note 120, at 4-6� 123 langer, supra note 120, at 77-81 (discussing a number of studies that show the benefit of conditional framing to priming mindful learning)� 124 krieger, human nature, supra note 13, at 285-86� 125 id� at 285� 126 id� at 292-93� see also robin a� boyle, employing active-learning techniques and metacognition in law school: shifting energy from professor to student, 81 u. det. mercy l. rev� 1, 7-17 (2003) (discussing metacognition in psychology, education and law); michael hunter schwartz, teaching law students to be self-regulated learners, 2003 mich. st. dcl l. rev� 447, 452-83 (2003) (discussing self-regulated learning)� autonomy-mastery-purpose: structuring clinical courses to enhance these critical educational goals 132 international journal of clinical legal education issue 18 by contrast, clinical legal education is structured to orient students to assume the professional role and to focus on building critical lawyering skills� students are told that during the clinical course they will learn to act like a lawyer� in supervising students’ work, professors demonstrate that they do not expect students to know all the answers� instead, professors put forth clear expectations that students will use a range of tools including critical thinking skills and that they will learn how to improve those tools by doing a number of different tasks� clinic students usually are excited by assuming the professional role of lawyer and using their law school studies to do something active� in clinic, students are evaluated or graded on multiple factors� of course, students normally are motivated to get excellent grades and evaluations, but there is no singular exam and the student is not solely motivated by the external grade or evaluation reward� rather, students are motivated to give excellent client service and to improve their lawyering skill levels� a hallmark of clinical legal instruction is that law students are required to reflect on their own performance� repeatedly, as students complete assignments, they are asked to explicitly and fully unpackage their performance�127 at both cua and cuny we do this in supervision meetings, in reflection memos, assigning students to lead debriefings of their cases in clinic rounds, and in selfevaluations submitted at mid-semester and at the end of the semester� this modeling of assessing one’s own thinking and action conveys to students that they will ultimately be professionally responsible to gauge the effectiveness of their choices� a cuny clinic student reacted to reflection assignments, “as a clinic student i was required to submit a reflection memorandum after every time i met with my client, went to court with my client, or completed a task on my client’s behalf� in the beginning of the semester i found this task quite bothersome� however, somewhere in the middle of the semester i began to see the importance and understand the benefit of reflecting on my own performance� if i hadn’t taken the time out to sit down and reflect on what i was doing, i would not have realized how what i was doing was affecting my client and her needs� by reflecting on my work i was able to see what a difference i was making for my client� i was also able to see what i needed to improve.”128 when students are expected to take the initiative in appraising their performance, to analyze what was achieved in their work, and observe that their actions made a difference for the client, they will push themselves to improve in all areas� these aspirations go beyond any extrinsic rewards they originally set for themselves� 2. achieving mastery involves pain assuming the role of lawyer means embracing the reality that successfully navigating one difficult situation permits the chance to go through difficult situations and that by doing so, one becomes an excellent lawyer� learning how to lawyer similarly involves intense, persistent effort, pushing boundaries of discomfort, and living with not “getting it” right away� indeed, most legal problemsolving is arduous� pink writes that mastery requires pain, or less starkly, requires perseverance and passion for long-term goals� it requires “grit�” “grit” is the character strength associated with 127 gregory munro argues that it is essential for law students to have a continuous “feedback loop” for frequent assessment and thus students should be continually exposed to multiple diagnostic tools to assist them to evaluate their learning� gregory s. munro, outcomes assessment for law schools 60 (2000)� see generally gregory s. munro, outcomes assessment for law schools (2000)� 128 written comments of jeanmarie krowicki, 2012 graduate of cuny school of law (january 21, 2012) (on file with authors)� 133 dogged persistence and intense effort when tackling obstacles�129 it is not only about working harder, it is also about working longer and with focused, undistracted energy� studies show that a person who has “grit” is more likely to successfully achieve long term goals�130 we can liken this idea of pain to the intense effort associated with climbing up the side of a cliff by repeatedly pulling yourself up to the next hold despite the discomfort of wearing your fingernails down� active learning by acting as a lawyer under clinical supervision acclimates students to the reality of encountering both success and difficulty in legal problem-solving� the teacher’s/supervisor’s explicit attention to the students’ reflection on their lessons from practice helps to normalize the discomfort associated with real life complex problem-solving and the quest for excellent lawyering performance� normalizing the expectation of “peaks” and “valleys” in gaining proficiency in lawyering skills increases the students’ ability to take corrective action routinely� thus our teaching/supervision choices should encourage the law student’s desire to try again, do more and improve their level of lawyering skills� law students are likely to gain the insight that achieving mastery is an incremental process when teachers regularly explore the student’s reflection on their preparation and performance� law students gain greater capacity to navigate ambiguity when they are given structured opportunities to reflect on their approach to handling “messy facts” and changing circumstances� teaching to mastery requires the teacher to provide a structured approach to learning for the law student rather than being completely open-ended and non-directive� providing structure includes articulating a framework for reflection and incorporating these mechanisms into the content of the supervision� structure has been defined as “(1) information about the pathways to desired outcomes and (2) support and guidance for pursuing these pathways�”131 setting structure creates an environment conducive to balanced reflection on performance� students are more likely to internalize a structure for reflection when they are encouraged to identify and correct mistakes� encouraging people to engage in optimally challenging tasks requires an environment that “tolerate[s] (and even value[s]) failure and error making�”132 one cuny clinic student explained the value of reflecting on her mistakes: “the reflection memo assignments gave me the opportunity to reflect on my mistakes and explain why i made them and how i planned to correct them� while in other doctrinal classes i was sometimes afraid to admit to my mistakes and unwilling to explain why i had made them, in clinic i was not afraid to discuss the mistakes i had made because i knew my supervisors/professors did not expect perfection� the supervisors were there to help us come 129 in his n�y� times article paul tough discusses angela duckworth’s early research and her observation that, “people who accomplished great things… often combined a passion for a single mission with an unswerving dedication to achieve that mission, whatever the obstacles and however long it might take� she decided she needed to name this quality, and she chose the word ‘grit�’” paul tough, what if the secret to success is failure? n.y. times (magazine), sept� 14, 2011 available at http://www�nytimes�com/2011/09/18/magazine/what-ifthe-secret-to-success-is-failure�html?pagewanted=all� “grit entails working strenuously toward challenges, maintaining effort and interest over years despite failure, adversity and plateaus in progress…� [t]he gritty individual stays the course�” angela l� duckworth, christopher peterson, michael d� matthews & dennis r� kelly, grit: perseverance and passion for long-term goals, 92 j� personality & soc. psychol� 1087, 1087-88 (2007)� 130 statistical findings suggest that sustained effort, and not talent alone, is predictive of achieving difficult goals� duckworth, et� al�, supra note 129, at 1089-1100� 131 reeve, supra note 17, at 159� 132 id� autonomy-mastery-purpose: structuring clinical courses to enhance these critical educational goals 134 international journal of clinical legal education issue 18 to the right solution, not punish us for being wrong� our clinical teachers emphasized that the purpose of the reflection assignments was to help us, as aspiring lawyers, to make the self-reflective process a regular part of our work as lawyers� they taught me that reflecting on and learning from experience is an essential part of the process of becoming an excellent lawyer�”133 although on first impression it may seem counter-intuitive, deliberative practice or conscious reflection on performance primes the ability to enter this mastery mindset more often and with greater skill� we want law students to internalize that continued professional development requires their ongoing effort to become more observant of their thinking, choices and actions in the lawyering process� our students at cua and cuny often state on course evaluations that faculty held them to higher standards than they imagined for themselves and that made them gain confidence in their potential/ability to be successful lawyers� to clarify, the pain involved in mastery for the clinical student is the pain associated with the discomfort and exertion in learning how to lawyer� as clinical teachers, we can reinforce that this discomfort and exertion should not ever go away completely� as they strive in their careers to continually improve and apply their knowledge and skills to challenging situations, moments of uncertainty and self-doubt will continue to be a normal part of the process� indeed, students should become wary of the mindset that “i’m a good lawyer now so, of course, i’ll reach a conclusion about what to do in cases easily�” this is not the same pain that many students associate with other aspects of law school when they react to what they perceive as humiliating teaching styles, the disregard for their individual development, being forced to engage in boring hours of memorization, and a sense that the entire academic experience is designed to weed out the weak who cannot “hack it as a lawyer in the real world�” that type of pain does not typically lead to “flow�” the student does not keep doing the individual tasks required because she wants to or because she believes that the task is critical in order be a good lawyer� contrast these counter-productive painful experiences with the discomfort a clinical law student experiences when putting together her first trial notebook for a clinic client’s hearing� typically, she wants to put together a good case because a client is depending on her, and she wants to prove to herself she can do it� she is pretty sure she can do it even though she has never done anything like a trial notebook before� she writes multiple drafts of each part of the trial notebook: opening, direct, cross, closing, and so on� with each draft she gets just a little better� she tells herself that she is going to prepare each step correctly so that the client’s story is portrayed in the best possible way� the student works long hours and puts in tremendous effort in producing this trial notebook� she continues to strategize about the hearing and revises her drafts� she continues to refine her trial notebook while also reminding herself to remain flexible because one never knows what will happen in court� another example comes from a student assigned to be a court evaluator in a guardianship proceeding� the court evaluator must meet with the subject of the proceeding and compile a report discussing her findings� at the guardianship hearing that follows, the court evaluator must get on the stand and testify to her report� in a real sense a person’s liberty is in the hands of the court evaluator who acts as the “eyes and ears of the court�” she reread and edited her report for several days until she was satisfied with the end result� she knew this proceeding was a serious matter and that her report would help the judge decide whether or not to appoint a guardian, so she wanted my report to be the best it could be� she knew that someone else’s welfare 133 written comments of jeanmarie krowicki, 2012 graduate of cuny school of law (january 21, 2012) (on file with authors)� 135 was depending on her and she didn’t want to let them down so she pushed herself to perfect her report� both these students will have the opportunity to do this type of work in other cases during the semester� and with each subsequent case assignment, each student will be able to observe her increasing abilities as she more confidently assumes her identity as lawyer� 3. mastery as an asymptote that will never be fully reached “asymptote” refers to an algebraic concept of a curve approaching but never touching the line above the curve� pink uses this term to label his third aspect of mastery as a continuing quest toward something that one accepts will never be fully achieved�134 we may get close to our idea of perfection in our performance, but we never fully realize what we envision� our mental image of the absolute ideal result will remain slightly out of grasp even though our capacity improves over time and with effort� but with a vision of mastery as an asymptote, this experience need not predominately negative, scary or frustrating� becoming fully engaged in performing as a lawyer is also exciting, rewarding, and contributes to building professional self-confidence� and these positive reactions lead to greater desire to repeat the experience and further practice the skills� we provide our students with repeated opportunities to explore what they can actually control in a given task and to also identify the many circumstances over which they have no control at all� this explicit acknowledgment helps students to gain greater self-confidence in their professional role as lawyer while at the same time embracing the reality that they will not always achieve their desired outcomes� they develop a deeper awareness that their professional growth is a long path of learning from their successes, mistakes and external limitations� krieger provides an excellent exercise to use with students to achieve this balanced, long-term positive acceptance that much of what happens is not within our control as lawyers�135 some students may experience frustration, a sense of failure, may “hide out” from supervision and may abandon the task because they have not internalized that full mastery will remain elusive� articulating what precisely the student has accomplished and what remains to be accomplished reduces the degree to which the students may experience these impediments to their desire for mastery� teachers should address these challenges in striving for mastery because achieving mastery demands effort to enter the mental state of “flow” and to spend more time in “flow�” students are more prepared to enter “flow” if they understand that “complete” mastery is always out of reach and never a constant state of mind� students often are overly harsh on themselves when reflecting on how they could have performed better in the courtroom or in the mediation room� we remind our students that learning how to be a better lawyer is a never-ending process for us all� we take the time to be explicit in our belief that learning from practice should increase our self-confidence rather than diminish it� one cua faculty member frequently advises students who are being overly hard on themselves after a court appearance: “you are always the best lawyer after the fact� we will always be able to imagine afterwards in our minds how we would have better responded to something in court� there is always something to learn and improve on� embrace that!” 134 pink, supra note 1, at 126-27� 135 for krieger’s control exercise, see krieger, inseparability, supra note 13, at 439 (appendix i)� autonomy-mastery-purpose: structuring clinical courses to enhance these critical educational goals 136 international journal of clinical legal education issue 18 b. teaching to mastery in professional role as a lawyer this section identifies four teaching approaches to clinical supervision that enhance students’ growth towards competence and mastery drawn from cognitive psychology, neuroscience and learning theory� these four approaches also are derived from our reflections on our experiences as clinical legal supervisors� 1. affirming law students’ capability teachers build law students’ self-confidence when they deliberately communicate that students are capable of learning how to become good lawyers� this communication makes it explicitly clear to students that the teacher is committed to their individual professional development� explicitly expressing our belief in the students’ ability to act as a lawyer encourages their learning process� our confidence in student capacity comes from our supervision history and is based upon specific premises from active-learning theory� feeling accepted by the teacher and supported in one’s efforts aid comprehension, retention and skill level�136 students can see us as those “we trust to care for our wellbeing” addressing the relatedness need identified by self-determination theory�137 as mentioned earlier, our student’s learning is positively supported when they believe that we are committed to their individual welfare and their success in becoming effective lawyers�138 validating capacity helps generate a positive emotional reaction, which stimulates increased commitment to the learning process�139 being explicit about capacity helps move the legal intern from the role of student to the role of novice attorney bearing responsibility for the welfare of the client� we also validate our student’s capacity by explicit reference to the common pitfalls in the learning process� it is common, and dare we say normal, for students who strive for excellence to have difficulty in settling for less than perfection in their performance� it is difficult to maintain their confidence that they will become good lawyers when they let unrealistic expectations of success get the best of them� this propensity, if not challenged, may lead to endless disappointment and frustration, which are counter-productive toward achieving mastery� thus our explicit identification of common pitfalls directs students to sustaining their conscious efforts in their performance and recognizes the hard work, even pain, which accompanies this journey� this is simply one way we demonstrate to students that we are paying attention to their point of view in the learning process� our teaching efforts to identify these pitfalls in the learning process contribute to the students’ perception of autonomy support in the teacher-student relationship�140 we do this is by incorporating common pitfalls into our classroom exercises, simulating or mooting issues during clinic rounds so that the entire group can discuss how to handle issues such as: how to introduce oneself to the court, how to address the judge, how to effectively use the 136 see laurie barron, learning how to learn: carnegie’s third apprenticeship, 18 clinical l� rev� 101, 116, 121 (2011)� 137 see discussion infra part iii� 138 see infra part iii�c� 139 see, e.g., joseph b. cuseo, igniting student involvement, peer interaction, and teamwork: a taxonomy of specific cooperative learning structures and collaborative learning strategies 8, 10 (2002)� cuseo explains that students increase their retention of material when the teacher employs active learning techniques in the instruction� the positive emotional reaction to active learning techniques aids retention, integration, synthesis and application of knowledge� 140 see discussion infra part iii� a� 137 microphone systems, how to review a retainer agreement, how to make oral recommendations to a board of directors, and how to respond to a lawyer’s objections in a mediation� this explicit emphasis on mindfully cultivating incremental gains helps students disabuse themselves of notions of achieving perfection� as explained earlier, we approach but never fully achieve our ideal of perfection in our performance�141 the teacher emphasizes that all legal problem solving is a learning process that starts with the subjective experience of uncertainty in undertaking each assignment� in clinical supervision, the teacher models adopting a “beginner’s state of mind” and provides opportunities for the student to reflect on their individual leaning process� “beginner’s state of mind” refers to adopting the learner’s stance that “we know that we do not know” rather than learning from a perspective that “we know what we are learning�”142 this stance primes us to look for what we do not know� we engage in learning being mindfully aware that our understanding will always contain flaws and thus we actively examine our process for those flaws� the starting point of our learning is to wonder whether we know something rather than to assume our knowledge� we approach learning as an individual process of discovery that should not negatively affect the students’ core self-concept as to who they are as full human beings with a fuller life’s narrative� the teacher reinforces that openness to self-critique keeps the good lawyer open to improving the quality of one’s thinking and actions� we should not confuse the idea of validating the student’s capacity with giving of false, excessive, or generalized praise� validating students’ capacity means giving specific remarks reflecting the teacher’s acknowledgment of the incremental steps our students are taking toward mastery of the lawyering role� this commitment is apparent when we take the time to validate the student’s effort and we examine the specifics of their work without negative character attributions� for example, a discussion reviewing a law student’s case theory might sound like, “it is really good to see that you reworked your original case theory� you acknowledged that you originally overlooked a key element to making your claim� after that reflection, you took into account various interpretations of the facts� you explored the pros and cons of alternate theories� you were able to refine your theory of the case by taking all these steps to address your key facts and include all the legal elements of your claim� this work is taxing and can be frustrating� you can be proud that you produced a workable theory on behalf of your client�” we avoid narrative character attributions when discussing their work such as, “apparently you believe you can act as this client’s lawyer without fully researching the controlling law before framing a case theory�” just the right amount of genuine validation promotes mental behaviors that encourage mastery� when a teacher communicates to students that they are capable of handling the task, they usually will strive to be even better at that task� students take more risk to learn how to function as a lawyer when they observe that we want them to succeed� they observe that we want them to succeed when we take active measures to promote their sense of ownership of their practice along with a sense of full partnership with the 141 see discussion of asymptote infra part v�a�3� 142 “beginner’s state of mind” refers to the approach of inquiry, not judgment, in gaining self-awareness and knowledge of the external world from deliberative contemplative discipline, without strong ego attachment� see generally alexander wynne, the origin of buddhist meditation 1-8 (2007); weiss, beginning mindfulness, supra note 120, at 189-195 (2004); hanh, supra note 120, at 27-31� autonomy-mastery-purpose: structuring clinical courses to enhance these critical educational goals 138 international journal of clinical legal education issue 18 supervisor�143 before students start their clinical assignments, they receive instruction on how the supervisor will engage with these stages of the reflection process� at the outset we address the rationale for our teaching choices and we make transparent our motive of supporting their growth towards competence and mastery� in supervision communications, we first request students’ reflections on the specific strengths in their work or to identify what they have accomplished thus far in the assigned task� we expect full discussion of this foundation and we reinforce those points with which we are in agreement� we do not rapidly pass over these reflections in order to emphasize our criticisms of the work� we then note other significant points of their effective practice� when we invest in this type of reflection practice, students observe that we believe in their capacity to learn from their lawyering efforts� students feel less vulnerable when armed with the understanding that all their work includes a mixture of their strengths as well as areas for improvement� they are also less distracted by imagined negative assessment by their supervisor when they lead the exploration of where their work needs improvement or is incomplete� this active teaching measure requires the teacher to listen first to students’ comments on where their performance fell short before pointing out where the student’s performance needs improvement� in every case and with every student, we should consistently probe first for the students’ identification of what needs to be revised or improved in the work� self-generated observations regarding where students believe their work is falling short makes the teacher’s feedback less threatening and more familiar�144 at both cua and cuny, we provide students with explicit, written evaluation criteria to guide their discussions in our mid semester meetings� we distribute critique guides for every debriefing which our students use when they give feedback to or receive feedback from any colleague on their performance� students are taught to specifically identify aspects of strong performance as well as the aspects of performance that need improvement� a former student enrolled in the mediation lawyering seminar at cuny, the prerequisite for enrollment into the mediation clinic, reflected on her introduction to these feedback methods: often feedback sessions begin with what could have been done better, but starting off with the things that worked well is more positive and makes the feedback session less dreadful� i think the six-step feedback model is beneficial because not only does the student get to reflect on her own strengths and weaknesses, she gets input from her classmates as to what worked well and what did not� sometimes students can be too harsh on themselves, or just the opposite, they are unwilling to see room for improvement� once you as the student identify your weaknesses, others are more inclined to address these weaknesses as well� this feedback model helps students see their strengths and their weaknesses and helps students better handle critique of their weaknesses� the feedback model helped me see my strengths and helped me identify my weaknesses� it was also very helpful to hear what other law students thought my strengths and weaknesses were� i learned a lot about myself from 143 one example of a structured reflection or feedback process premised upon taking these active teaching measures can be found in beryl blaustone, teaching law students to self-critique and to develop critical clinical selfawareness in performance, 13 clinical l. rev� 143, 154-59 (2006)� 144 blaustone, supra note 143, at 159� 139 participating in feedback sessions with my peers�145 once students are oriented to these reflection stages in unpackaging performance, we do not shy away from identifying important areas for improvement if the student has not articulated the significant weaknesses in their work� we put our effort into reframing the “failure” as an opportunity to anticipate how to handle the challenge better next time� for instance, we might say; “going forward, you must make sure to address the most recent case law interpretation on all your disputed elements when drafting your argument� why do you think this observation matters in your approach to subsequent work? what will you do differently next time you are conducting legal research and framing a case theory?” when challenges are framed as surmountable rather than failures, students are more likely to continue their intense effort to more effectively resolve the issues� when students are not validated or even worse when they are not treated as professional colleagues in training, their desire for self-mastery diminishes� 2. explicit commitment to student & teacher’s joint responsibility for learning & clear communication about expectations communicating belief in the joint responsibility for the student’s professional development promotes mastery� joint responsibility means that both teacher and student discuss what they are expected to do in the supervision process as well as in the lawyering assignment� students are expected to take primary responsibility for their learning and teachers are primarily responsible for the quality of the learning environment in supervision� the teacher should make clear from the beginning that she is there to help carry the load, but the student must figure out how to do the majority of the work for themselves� the intended message is that the law student is actively partnering with the supervisor to move towards the goal of reaching lawyering competency� it is the student’s journey and the teacher is there to help the student along the way but ultimately it is the student’s quest� jointly, the teacher and the student set the expectations for the student in assuming the role of lawyer and performing their assigned duties� it is important to give explicit attention to joint responsibility for the student’s professional development because students are expected to see themselves as the primary professional responsible for taking action in cases while under supervision� it is understood that the student is accountable for what happens in the case� it is up to the student to become the lawyer or professional the student wants to be� this “learning on the job” is not a passive learning process� at the outset of the clinical experience, the teacher makes clear to students that they have to actively figure out what to do and how to do it� they are placed in “the real legal world” where situations are ever-changing and outcomes are not completely predictable� setting clear expectations about the students’ responsibilities for the clinical learning relationship prepares them to avoid either mindless imitation or sheer replication of previous efforts in solving the next problem� when students and teachers discuss their expectations about how to start assuming the role of lawyer, students are more likely to integrate these concerns into how they individually approach their efforts toward achieving mastery� in order to promote mastery in the clinical supervision relationship, teachers translate student responsibility for their learning into specific expectations for students’ initiative and follow145 written comments of jeanmarie krowicki, 2012 graduate of cuny school of law (january 21, 2012) (on file with authors)� 139 autonomy-mastery-purpose: structuring clinical courses to enhance these critical educational goals 140 international journal of clinical legal education issue 18 through in effectively consulting with their supervisors� together, both teacher and students articulate specific expectations for student engagement before assigning any individual case work� both teacher and students continue to identify how these expectations apply to the actual work throughout the duration of the learning experience� for example, if students are expected to identify their questions when consulting the supervisor, the teacher should refer back to this expectation before commenting on the specific questions� teachers indicate to students that they are expected to carry out their responsibilities to the fullest extent possible� in other words, students understand that they are responsible for the quality of their judgments and their actions in every assignment, all of which impact the welfare of the client and which may be subject to a supervisor’s review� there is less “checking out” by the student when the teacher reinforces what is expected throughout the semester� and when communicating in supervision, the teacher regularly addresses the responsibilities of both the supervisor and the students in carrying out the lawyering assignment� when students know from the very beginning that they are responsible for the professional they want to become, they become the driver on the road to mastery� students are more inclined to build their understanding of professional competence and mastery when teachers regularly review expectations set by both the supervisor and students during the specific assignment� students sometimes say that they appreciate the discussion of expectations because they feel uncertain about the norms of professional legal culture� in addition, students often comment that they benefit from being prodded to explicitly state the expectations they are trying to fulfill in taking on specific assignments� they indicate that these discussions remove some of the mystery in understanding the type of effort required in lawyering and the standards by which the work will be evaluated by both the student and the supervisor� 3. deliberate attention to reducing “fill-in” teachers promote mastery when questioning students about their assumptions or the extent of their fill-in undertaking any task� teachers promote mastery when normalizing the presence of assumptions, our mental fill-in of additional content, in fact gathering, memory and reasoning� ordinarily, most people cannot tell when they are filling-in gaps with fabricated information or when they are creating gaps by omitting information because this is mostly an unconscious process�146 “when we imagine future circumstances, we fill in details that won’t really come to pass and leave out details that will�”147 the human brain supplies “best guesses” routinely at extraordinary speed and without asking permission� we make inferences about what we know to a greater degree than we commonly acknowledge� research confirms that individuals confuse their subjective belief in the truth of a statement with the objective truth of a statement�148 additional research illustrates the individual propensity to overestimate one’s abilities and to overestimate 146 daniel l� schacter, joan y� chiao & jason p� mitchell, the seven sins of memory: implications for self, 1001 annals n.y. acad� sci� 226, 227-29 (2003)� see generally daniel l. schacter, the seven sins of memory: how the mind forgets and remembers (2001)� daniel schacter is a psychology professor at harvard university whose research is focused on neuropsychological aspects of memory and memory distortion� see also gilbert, supra note 119, at 83-105� 147 gilbert, supra note 119, at 263� 148 alison r� fragale & chip heath, evolving informational credentials: the (mis)attribution of believable facts to credible sources, 30 personality & soc. psychol. bull� 225, 226-27, 233 (2004)� 141 the likelihood of successful outcomes�149 our automatic mental processes make us inclined to interpret realities in ways that maintain consistency and predictability even when external factors indicate that our “theory” may not accurately reflect the facts�150 we instinctively and subconsciously filter out negative information which does not support our beliefs� we overvalue data that supports our beliefs� confirmation bias is the subconscious propensity to favor information that confirms our assumptions with no attention to the level of objective accuracy of the information�151 ordinarily we mindlessly select and interpret our evidence in biased ways� this propensity is more likely when we are working on issues that are emotionally important to us or reflect our individual values�152 for instance, we are more likely to credit sources that reinforce our positions and reject as less trustworthy contradictory information coming from sources supporting opposing points of view�153 this subconscious, automatic method of processing information leads to erroneous reliance and over-confidence in our understanding of most things�154 each of us is unaware that we are naturally prone to being over confident in the narrative we provide ourselves to make our realities coherent� this automatic process often propels students to make poor decisions� our focus on becoming mindful of this pitfall helps students detach emotional negativity to “getting it wrong” and allows them to internalize the realization that these common challenges face everyone in improving their thinking processes� when students are asked to take the conscious step to look for fill-in, they develop more ability to substitute investigation for their unexamined judgments in creating coherent understanding� we regularly ask our students to explain the basis for their observations or how we would verify the accuracy of what the student is over-confident is asserting� in every assignment, we ask students to reflect on questions such as: “what information may i have overlooked? what are all possible unknown factors or variables that could change my analysis?” this inquiry encourages reflection on the distinction between self-confidence and over confidence in our judgments� we seek to reinforce our students’ belief that they are able to function better because they question what they know and are more able to doubt the validity of their assertions� when we encourage law students to become aware of their own assumptions and how everyone operates with the reality of default fill-in, they become more inclined to question the basis for their assessments� once students become aware that everyone is prone to make these types of mistakes when lawyering, they pay more attention to making less of them� they are more able to reflect on the consequences of incomplete factual comprehension and inaccurate risk assessment� they 149 avishalom tor, the methodology of the behavioral analysis of law, 4 haifa l. rev� 237, 254-55 (2008)� 150 see amos tversky & daniel kahneman, extensional versus intuitive reasoning: the conjunction fallacy in probability judgment, in heuristics and biases: the psychology of intuitive judgment 19 (thomas gilovich, dale griffin & daniel kahneman eds�, 2002); daniel kahneman & shane frederick, representativeness revisited: attribute substitution in intuitive judgment, in heuristics and biases: the psychology of intuitive judgment 49 (thomas gilovich, dale griffin & daniel kahneman eds�, 2002)� kahneman, a nobel laureate in economics and a psychologist, developed ground-breaking psychological theories of judgment and decision-making� 151 jane risen & thomas gilovich, informal logical fallacies, in critical thinking in psychology 110, 112-13 (robert j� sternberg, henry l� roediger iii & diane f� halpern eds�, 2007)� 152 id� 153 id� 154 id� autonomy-mastery-purpose: structuring clinical courses to enhance these critical educational goals take additional steps to verify their understanding� they are thus more likely to uncover their assumptions�155 students become more motivated to consciously check their assertions when they understand these propensities for error� finally, with repeated reflection on their assumptions, students feel more capable of correcting their choices in the future�156 in our supervision experience, many students have commented that becoming more aware of the prevalence of the assumptions-making process helps them to monitor their internal thinking� several students observed that they did not know they were making assumptions until questions were posed by the supervisor which led to their insight that they need to monitor their inclination to fill-in gaps in the legal stories that they are developing� in the beginning of the clinical experience, students will comment that they were not aware of the extent to which this fill-in process is occurring for them� after opportunities to reflect on this inclination, many students identify specific instances where they are self-correcting to mitigate their tendency to fillin� for instance, a student remarked that she was able to reflect on her inaccurate inferences about what the witness actually saw when listening to him describe an assault� she further commented that she was pleased that she able to correct for these inaccuracies without negative judging her ability to fully prepare the witness’s testimony� she viewed this self-correction as a normal part of clarifying her understanding and did not feel less capable as a lawyer because she had made some inaccurate assumptions� several students have commented that having this explicit conversation with their supervisors helps them to actively check for omissions and questionable inferences when reviewing their notes from a client interview� and eventually, many students will comment that they are able to catch more of the issues during subsequent interviews� 4. taking time to verify understanding from supervision teachers promote mastery by focusing on what the student actually understands from the supervision rather than only focusing on giving substantive information� the teacher must take the time with the student to determine what the student actually understands from their communication with the supervisor� as teachers who are legal practitioners, we understand how challenging this idea is to our goal of efficiently supervising many students on several cases� nevertheless, more misinterpretation happens when we fail to regularly probe our student’s understanding of our discussion or written remarks� asking the student to articulate their understanding of what was just covered takes time away from other comments that may be important to the supervisor� yet when we focus on the extent of the student’s grasp of the communication, the supervisor has the opportunity to confirm or correct the student’s understanding before they proceed further� putting a priority on finding out what the student understands from the supervision can alert the supervisor to important issues needing clarification that matter more than the additional information the supervisor wanted to cover� the student integrates the lesson that lawyers need to regularly clarify their understanding of tasks� this means that the teacher would conclude a supervision session by asking for the student’s 155 jeremy a� blumenthal, law and the emotions: the problems of affective forecasting, 80 ind� l�j� 155, 161-64 (2005)� 156 human beings should understand themselves better as self-regulating, thinking actors who are able to deliberately take into account the functioning defaults inherent in our thinking processes� douglas j� hacker, definitions and empirical foundations, in metacognition in educational theory and practice 1, 10 (douglas j� hacker, john dunlosky & arthur c� graesser eds�, 1998) (citing r� h� kluwe, cognitive knowledge and executive control: metacognition, in animal mindhuman mind 222 (d�r� griffin ed�, (1982)� international journal of clinical legal education issue 18 142 understanding of the discussion� for instance, after discussing the student’s interview plan, the supervisor would ask the student to articulate her understanding of what has been covered� the supervisor may then learn that the student did not register the importance of following up a particular line of inquiry� now the supervisor is able to take the additional moment to ask the student about the omission of those points� or the supervisor may learn that the student misinterprets suggestions or misunderstands what the supervisor said about a controlling point of law� our belief in the importance of verifying the student’s understanding from the supervision is reinforced by students’ comments that they find it helpful when they are asked to review their understanding of what was covered in the conversation or written remarks� as one law student commented: i have learned that the most important thing in law school is being able to understand the rules in order to apply them to various situations� this is also true outside of the classroom� when having a conversation with a professor or supervisor, if you don’t understand what she says, you cannot accurately complete the task� it is helpful when all individuals involved are on the same page� mastery involves understanding – if you don’t understand you can’t get to the next level�157 law students do not come to the clinical experience already accustomed to actively clarifying their understanding of what the job entails with their supervisors� although some students may be accustomed to asking questions, that process does not necessarily correspond to the actual level of understanding the student possesses regarding the assigned lawyering tasks� not all students will ask questions nor will the actual questions posed necessarily lead the student to moving forward in their process towards mastery in becoming an effective lawyer� additionally, we observe that students’ questions may not necessarily correlate to their areas of significant confusion or misunderstanding� we are positing that supervisors may incorrectly correlate the simple exercise of asking questions with a student’s progress towards developing lawyering skills� if teachers take the initiative to probe the student’s understanding rather than simply respond to questions posed, they actively work to reduce predicable distortion by students as they begin to practice as novice lawyers� supervisors can do this by asking students how they arrived at their observations or why they arrived at the questions they are now asking� these types of questions help students to explore the extent of their thought processes underlying their comprehension� as teachers, when we pay attention to clarifying the student’s understanding from our supervision, we model vigilance against premature judgment when lawyering� vi. relatedness and purpose in the previously mentioned booklet for law students, the hidden sources of law school stress, lawrence krieger discusses three aspects of “hidden stresses of thinking ‘like a lawyer,’” which can be attributed to the “intellectual and cognitive apprenticeship” of the first year: losing faith in oneself, losing faith in the law, and losing connections with other people�158 this formulation helps us think about how clinical programs can counter these losses with supporting the students’ basic need for relatedness, nurturing intrinsic motivation by reminding students of personal 157 written comments of jeanmarie krowicki, 2012 graduate of cuny school of law (january 21, 2012) (on file with authors)� 158 krieger, hidden sources, supra note 13, at 7-9� 143 autonomy-mastery-purpose: structuring clinical courses to enhance these critical educational goals values that brought them to law school, and aiding students in forming a professional identity that contributes to a sense of purpose for their lives� krieger sees law school classes concentrated on identifying relevant law and applying it to facts without engaging students’ “pre-existing beliefs, values, preferences, and��� feelings and emotions” as contributing to the students’ loss of faith in one’s self�159 he warns this can lead students to “discount or ignore their beliefs, feelings, and values as if they no longer matter” with a resulting feeling of feeling “lost�”160 second, krieger posits that students may have come to law school thinking that “the law” has a fixed meaning, and courses will teach “the answer�” instead they learn that the “best answer” in law school often is identifying many possible outcomes� law school teaches skills that can be used “to shade the law in favor of virtually any position a client might prefer,” including ones that conflict with the students’ values� students may ignore their “sense of right and wrong��� in order to rationalize any possible outcome,” and this loss of faith in the law can “dampen the ideals and values that brought [them] to law school in the first place�”161 third, law students can carry over their newly honed skills of finding the weaknesses in other’s arguments, making counter arguments, and defending their position into bringing “critical and aggressive/defensive” communication into personal relationships� a heavy law school workload, compounded by worry about avoiding failure and getting good grades, already may press students to neglect connections to friends and family� interacting in argumentative and critical ways when together can compound the problem of losing one’s relatedness to others� as an “antidote” to these three stresses, krieger recommends remembering that thinking like a lawyer is “a legal skill but not a life skill�”162 clinics provide an opportunity for students to use analytical skills, not as an abstract point and counterpoint exercise that is an end in itself, but rather a tool for the important end goal of improving the lives of others as previously stressed, one dimension of relatedness refers to “gravitat[ing] toward people who we trust to care for our well-being, and��� drift[ing] away from those who we do not trust to look out for our well-being�”163 the previous discussion of teaching to mastery stressed the importance of a student’s perception that the teacher believes in the student’s capacity to become a good lawyer and the reassurance that the teacher is there to support the student’s journey to that goal� in addition to the relationship of student and teacher, clinical programs can offer opportunities for supportive relationships with other students� much of law school can seem to be about competition with other students – for grades, for jobs, for editorial positions, for spots on moot court teams� clinics often pair students to work on cases and seek to encourage a sense of mutual 159 krieger, hidden sources, supra note 13, at 7� 160 see krieger, human nature, supra note 13, at 265-270 and accompanying footnotes regarding the a study of language used in law school classrooms by elizabeth mertz, an anthropologist and law professor, who conducted a project sponsored by the american bar foundation� mertz’s research team recorded a full semester of contracts classes in eight diverse law schools� elizabeth mertz, the language of law school: learning to “think like a lawyer,” (2007)� 161 sheldon & krieger, undermining effects, supra note 13, at 282 (research finding that a decrease in all valuing in law school with a “disproportionate initial drop in the healthy ‘intrinsic’ values”)� 162 krieger, hidden sources, supra note 13, at 9� 163 reeve, supra note 17, at 162� 144 international journal of clinical legal education issue 18 144 support among clinic students toward doing the best job for clients, while acknowledging the hard work entailed� street law programs usually encourage team sharing of ideas and lesson plans and feedback for their improvement� law study gives a concrete use for what has been learned with a real client to represent� clinics also can help students see the relationship of the work to broader communities of people� like street law programs, representation clinics often combine individual casework with community education efforts and needs assessments providing relatedness to other individuals as well as groups� as to purpose, clinical teachers can be mindful of what may help nurture the values that students brought to law school and provide a vision for standards of important ends to which service can be directed� the carnegie report challenges the position of professors who believe that law schools neither can nor should attempt to influence student values and even take the position that asking students to state their normative positions is a form of indoctrination�164 the report cites experience in other professional education showing that well-structured ethics education can make a difference in students’ ability to recognize ethical issues, reason through alternatives, be motivated to act consistent with moral principles and public purposes of the profession rather than self-interest, understand how to formulate a course of action consistent with those principles, and have the strength to carry out the plan�165 this sense of identity based in ethical principles and public purposes of the profession also can counteract krieger’s previously identified loss of faith in oneself and the law� at the end of the clinical experience at cua and cuny, many students reflect in their last class or in their final written reflection that clinic made them remember why they enrolled in law school� many students describe increased self-confidence in their individual values� they often state that they now feel able to practice law in furtherance of those values� conclusion we wrote this article to share how clinical law teachers can harness the power of intrinsic motivation and the theories regarding the human needs of autonomy, mastery and purpose to improve the quality of our law students’ learning as well as encouraging habits of being that promote life satisfaction� perhaps the most effective conclusion we can offer is the following journal from a student who, in her last year of law school, took leah wortham’s professional responsibility (pr) class while being enrolled in the cua families and the law clinic in which catherine klein teaches�166� students in the pr class can choose to do five two-page journals for a small bit of extra credit, but they are not required to do so� the guidance gives a long list of types of topics including those chosen by students in the past and concludes with the following instruction� topics can be anything concerning application of the law regulating lawyers or more general issues such as the meshing of legal and personal ethics, the role of lawyers in our society, public perception of lawyers, professionalism, or other concerns that 164 the carnegie report, supra note 29, at 135-36� 165 the carnegie report, supra note 29, at 133-35� see discussion infra part iii� d� 166 this cua clinic student was also enrolled in leah wortham’s professional responsibility course� 145 autonomy-mastery-purpose: structuring clinical courses to enhance these critical educational goals you have regarding entering the profession� i mainly care that what you have chosen to write about is of significance to you� many students choose to write about issues arising in in-house clinics, externships, or situations arising at work or with friends and family� the final class unit, assigned for the last day of class, is called the profession and society; the profession and you� the only reading assigned is krieger’s previously discussed the hidden sources of law school stress� like the journal that follows, the booklet has prompted many thoughtful, and often poignant, journal responses� the following journal seems to the authors to track much of what this article is about: the frustrations students can feel with a diet of primarily classroom doctrinal courses and a disconnect from any larger purpose in becoming a lawyer� this semester has been the busiest and most stressful semesters of my law school career thus far� it is surprising that i would say this, considering how stressed out i was during my first year� when i began law school and friends asked me about my experience, i was never positive� i never voluntarily recommended law school to anyone� when i think back at the thanksgiving break of my first year, about a week before finals, i remember that i wanted to avoid all conversations having to do with law school� i was invited to a college friend’s house, and i was clearly stressed, unhappy, and doubtful of my performance on exams� i had extremely low selfconfidence and confusion about my study and grasp of the law� at the time, i wanted to pretend that i wasn’t even in law school so that i could at least sit down and enjoy my thanksgiving dinner� despite my efforts to keep the topics of conversation flowing, law school immediately and inevitably came up on numerous occasions� my friends wanted to know how it had been and whether i was enjoying it� it was troublesome for me because i felt that i did not have many outlets during the semester to discuss what i was learning or even apply it in real life� i was intimidated by the other students in class, and i rarely volunteered to speak� furthermore, i never had an opportunity to reflect on what i was learning and how it applied to my life, which i think would have been extremely helpful for me� thinking back, i realize that the only class that i enjoyed and did “well” in, at least during my first year, was my lawyering skills class� despite the fact that it was the busiest class with the heaviest workload and a high amount of stress (for  only 2 credits), it was a class for which we wrote several memos each semester that reflected our understanding of the law, a set of facts, and the application of the law to the facts� we got constant feedback from our professors, and we were able to make significant improvements in our writing skills as well as our analytical skills� overall, it was our first glance at the actual practice of the law through researching and advising on an issue to a hypothetical client that we had throughout the semester� we learned not only legal writing skills, but also how to write a letter to the client about a complex legal issue� the class prepared us for real-life legal representation� unfortunately, my second year courses – which were mostly substantive bar courses – did not allow me to reflect on and apply my understanding throughout the semester in a way that is most helpful for me� this semester, as i stated, has been the busiest and most stressful semester thus far� however, it is important to note that it has been one of the most rewarding and 146 international journal of clinical legal education issue 18 146 happiest semesters for me as well� i leave the semester with a higher sense of selfconfidence as a future lawyer and a positive outlook to my legal career� i believe that not only have i learned to appreciate the ways in which i can take advantage of my law school experience to suit my needs and interests, but i have also been able to recognize my highest demands and moderate my response to them (as noted in the hidden sources of law school stress book you handed out) in a way that reduces the negative effects of the stress and allows me to maintain a sense of enjoyment� my clinic experience and professional responsibility journals have really provided me with an outlet to reflect on my experiences� specifically in pr journals, i  have really taken advantage of them to think back on my past externship and current clinical experiences to assess various situations that i have encountered� by having a conversation about my understanding of a rule or factual situation, i have been able to balance my stress levels by bringing all aspects of my law school and personal experiences together� overall, taking the time to reflect, whether it is in class or in clinic or in real-life, and having someone read it and respond to it, has been extremely helpful for me to legitimize my worries and concerns as well as motivate me to trigger my thoughts and build confidence in my observations and analyses� now, i recommend law school to almost every undergraduate student or young professional that i encounter with great enthusiasm, and i hope that i will not have to feel the way i did my first year during even the points of highest stress in my professional legal career�167 167 melissa nonaka, journal #5 submitted for leah wortham’s fall 2010 professional responsibility course (december 6, 2010) (unpublished journal on file with the authors)� when wortham contacted ms� nonaka for permission to reprint the journal in this article, she learned that ms� nonaka is now working at a well-respected immigration firm� ms� nonaka said “i have always wanted to pursue a career in immigration law (since before law school) so i am happy to be doing what i love!” e-mail of melissa nonaka to leah wortham (june 16, 2012) (on file with the authors)� 147 autonomy-mastery-purpose: structuring clinical courses to enhance these critical educational goals 148 international journal of clinical legal education issue 18 reviewed article 4 the role of legal clinics in promoting human rights: the experience of nigeria law school yenagoa law clinic and the legal support and care centre at gd goenka university school of law gurgaon india omoyemen lucia odigie-emmanuel, nigerian law school shiksha dahiya, school of law, g.d. university, india∗ abstract legal clinics are playing a very prominent role in promoting human rights and filling global access to justice gaps through justice education. in turn, they provide access to justice for the poor and marginalized in fulfilment of this social justice mandate. clinicians realize that human rights and justice education is key to their social justice mission. apart from adding statements about the importance of justice to their mission statement, clinics have in place programs fundamentally oriented around a vision of justice. students in clinics play very important roles in achieving their clinics’ social justice mission and goals by sensitizing youths, women, children, inmates and citizens to change thought processes and mold the social fabric needed for a just society, promoting a culture of lawfulness through generating solutions to several ∗ omoyemen lucia odigie-emmanuel is a lecturer at the nigerian law school and coordinator of the nigerian law school clinic, omoyemenlucia.emmanuel@nigerianlawschool.edu.ng; and shiksha dahiya, school of law, g.d. university, india mailto:omoyemenlucia.emmanuel@nigerianlawschool.edu.ng reviewed article 5 social issues that results in good citizenship, improved policies, good governance, access to justice and effective remedies. generally, the objective of this paper is to share case studies from the nigerian law school yenagoa legal clinic, the legal support and care centre at gd goenka university and legal aid society at the northcap university, gurugram, haryana, india of how legal clinics are promoting human rights, access to justice, a culture of lawfulness and sustainable development through their work in communities, schools and prisons. the first section lays a background on the role of law in shaping society, the second focuses on the conceptual and theoretical frameworks. the third section examines the framework that provides the mandate education for justice and human rights. the fourth section assesses the role of law schools and clinics in promoting education for justice, human rights and a culture of lawfulness while the fifth section deals with conclusions and recommendations. keywords: justice, lawfulness, legal clinics, rights 1. introduction the function of law in nigerian and indian societies can be seen from two perspectives, its normative function and its social function. according to lord sankey, ‘… the role of lawyers is a pervasive one, straddling the political, economic as well as reviewed article 6 social life of the society’.1 from the normative perspective, law can be viewed as a beacon towards which social action is directed by society in that it can either guide to, or dissuade from, certain actions by expressing the desire that at such action being performed, certain undesirable legal consequences may follow. it defines relationships among members of society and defines acceptable behaviour. in its social function, law protects society in general, ensuring that there is security for all, protects general morals and institutions, protects individual rights and ensures the adjustment of conflicting interest to derive an equilibrium through which society can function optimally. law defines what society labels as crimes and provides legal sanctions for violators. conviction and punishment for crime and violation of human rights whether by individuals, corporate entities or the state does not demand that you know you are committing a crime when the action was done. the aggregate burden of crime borne by nigeria and india, as a result of activities in yenagoa and gurgaon, india is enormous. thus, it becomes imperative to focus on crime prevention rather than on citizen protection and correction. the cost of crime includes the cost of legal and judicial costs of prosecuting criminal cases, cost of running correction facilities, cost of providing police protection, indirect and indirect losses suffered by victims of crime and the opportunity cost of prisoners serving prison terms and costs posed and borne by those connected to them. 1 laurence gower, ‘english legal training’(1950) 13 modern law review [137], [161] reviewed article 7 yenagoa local government area of bayelsa state has been identified as one of the major local government areas that had high cases of crime and human rights violation. a study conducted in yenagoa revealed that theft and other stealing were the most common types of crime in the area accounting for 40.03%, assault accounted for 22.59%, while false pretences and cheating accounted for 9.63% and armed robbery for 6.82%. murder had 4.47% while burglary and rape, indecent assault and house breaking was 4.02%, 3.71% and 3.64% respectively.2 another report states that the absence of police personnel and other security operatives in some hotspots for crime and gang-related crises in yenagoa, has made residents vulnerable to attacks by cultists and armed robbers. lives have been lost to cult-related violence, several cars have been hijacked and many persons sustained different degrees of injuries at the time of report.3 the nigerian law school yenagoa law clinic programme is not only an opportunity for participating students to immediately put to use what they have learnt in class, it also enables students to strategize and identify social justice problems in the communities around the institutions so they can intervene, using the instruments of advocacy, training and legal counselling. students have identified human rights 2 ekpo effiong, felix iyiola, isaac a. gbiri, and daukere bitrus eniyekenimi, ‘gis approach in analysis of crime mapping in yenagoa local government area of bayelsa state, nigeria’ (2016) 5(10) the international journal of innovative research and development, <https://internationaljournalcorner.com/index.php/ijird_ojs/article/view/136427> accessed 13 march 2023 3 ebiowei lawal, ‘crime rate increases in bayelsa, as police abandon duty posts' tribune (lagos 13 nov 2020) < https://tribuneonlineng.com/crime-rate-increases-in-bayelsa-as-police-abandon-dutyposts/> accessed 02 november 2022 https://www.google.com/url?q=https%3a%2f%2ftribuneonlineng.com%2fcrime-rate-increases-in-bayelsa-as-police-abandon-duty-posts%2f&sa=d&sntz=1&usg=aovvaw2zhvcjvrywem1w2iotxcnh https://www.google.com/url?q=https%3a%2f%2ftribuneonlineng.com%2fcrime-rate-increases-in-bayelsa-as-police-abandon-duty-posts%2f&sa=d&sntz=1&usg=aovvaw2zhvcjvrywem1w2iotxcnh reviewed article 8 abuses and high crime rates as problems that could be addressed through education on human rights, justice and a culture of lawfulness and had over years developed strategies to achieve same. education as a strategy for behavioural change has also been identified by several entities as being capable of creating change in levels of human rights abuses and high crime rate in yenagoa. recently, it was reported thus: nigeria’s youthful population, particularly in the niger delta region, are facing multiple challenges that include low level and quality of education and health care, poverty, and unemployment, which makes them more vulnerable to drug use, gang violence, cultism, piracy, riverine and other maritime crimes, all of which are prevalent in the niger delta region and are adversely affecting the life and safety of young people as well as the local communities and pose security risks.4 in august 2022, the united nations office on drug and crime organized a workshop on “building youth resilience to violence and crime through social developmental approaches to crime prevention” aimed at enabling the development of the crime prevention strategy for bayelsa state and building local capacity to effectively address violence and crime at the community level. 4 united nations office on drug and crime, 'building youth resilience to violence and crime through social developmental approaches to crime prevention' (august 2022) < https://www.unodc.org/nigeria/en/building-youth-resilience-to-violence-and-crime-through-socialdevelopmental-approaches-to-crime-prevention.html > https://www.google.com/url?q=https%3a%2f%2fwww.unodc.org%2fnigeria%2fen%2fbuilding-youth-resilience-to-violence-and-crime-through-social-developmental-approaches-to-crime-prevention.html&sa=d&sntz=1&usg=aovvaw1tygheotqlei9fhr4negbz https://www.google.com/url?q=https%3a%2f%2fwww.unodc.org%2fnigeria%2fen%2fbuilding-youth-resilience-to-violence-and-crime-through-social-developmental-approaches-to-crime-prevention.html&sa=d&sntz=1&usg=aovvaw1tygheotqlei9fhr4negbz reviewed article 9 human rights violation and crime rate in crime rates in gurgaon, india is classified as high. according to statistics level of crime is about 64.31%, people using or dealing in drugs is moderate at 42.93%, incidence of property crime is moderate at about 55.73%, problem of assault and armed robbery is moderate at about 56.74% while the problem of corruption is high at about 76.03%. as in most parts of india, human rights violations is high in in gurgaon. according to a 2016 report: … the most significant human rights problems involved instances of police and security force abuses, including extrajudicial killings, torture, and rape; corruption, which remained widespread and contributed to ineffective responses to crimes, including those against women, children, and members of scheduled castes (scs) or scheduled tribes (sts); and societal violence based on gender, religious affiliation, and caste or tribe. other human rights problems included disappearances, hazardous prison conditions, arbitrary arrest and detention, and lengthy pre-trial detention. court backlogs delayed or denied justice, including through lengthy pre-trial detention and denial of due process.5 the impact, effect and cost of crime and human rights violations in yenagoa and gurgaon can and have been minimized through human rights and justice education aimed at promoting understanding of human rights, respect for human rights and a 5 united states department of state, ‘2016 country reports on human rights practices’ (2017) <https://www.refworld.org/docid/58ec8a2613.html> accessed 26 october 2022 reviewed article 10 culture of lawfulness. this is premised on the understanding that the more people know about their rights and the limits to their rights as a result of other people’s rights, the more likely they are to keep within the boundaries of law. also, they are able to understand that following every act of breach is an ensuing sanction. this influences the decision on whether to respect rights, violate rights or to seek redress when their rights are violated. kaunda quoting the then president of gambia stated that, ‘i consider law to be perhaps the most important of all instruments of social order because without it the whole structure of society can but inevitably collapse.’6 in african countries, legal education and its relation to community goals have often been insufficiently appreciated. however, in the last decade the unique role of law clinics has become prominent through the successful work of law students as they perform the social justice mission of law clinics and take strategic action, including education for justice as their contribution to engendering a symbiotic relationship between human rights and justice, and building values through justice education. education is the hallmark of a civilised society, the engine of social justice and economic growth, the foundation of our culture and the best investment we can make in the future of our country. the better educated our society, the fairer, more cohesive, 6 kenneth kaunda, ‘the functions of a lawyer in zambia today’ 1[1971-1972] 3-4 zlj <https://heinonline.org/hol/landingpage?handle=hein.journals/zambia3&div=4&id=&page> accessed 15 march 2021 https://heinonline.org/hol/landingpage?handle=hein.journals/zambia3&div=4&id=&page reviewed article 11 productive and innovative it can be.7 globally it is widely believed that the quality of legal education and the legal profession is important to justice delivery. under the doha declaration, member states emphasize that education for all children and youth, including the eradication of illiteracy, is fundamental to the prevention of crime and corruption and to the promotion of a culture of lawfulness that supports the rule of law and human rights while respecting cultural identities. also, goal 4 of the sustainable development goals, promotes commitment to promoting lifelong learning opportunities for all as key to sustainable development. in the words of lon fuller, ‘lawyers have a central role to play in the ordering of society.’8 many viewed law as a critical instrument in africa’s development.9 this perspective is well articulated by hon. justice m. o. onolaja in the following statement: … lawyers are instrumental to whatever situation any country may find itself. lawyers, as judges, in private or corporate practice, in the academics or in government, shape the society and the lives of their fellow human beings… however, a lawyer can only be as good as the system of legal education that produced him. legal education academic as well as vocational – is a vital 7 charlotte dean, ‘key issues in emma smith , education and social justice’ [2018] sage https://www.researchgate.net/publication/309227876_seeking_educational_excellence_everywhere_a n _exploration_into_the_impact_of_academisation_on_alternative_education_provision_in_england > accessed 15 march 2021 8 robert summers, ‘fuller on legal education’ (1984) 34(1) journal of legal education, 8 9 samuel manteaw, ‘legal education in africa: what type of lawyer does africa need’, (2016) 39(4) mcgeorge law review. <https://scholarlycommons.pacific.edu/mlr/vol39/iss4/1> accessed 15 march 2021 https://www.researchgate.net/publication/309227876_seeking_educational_excellence_everywhere_an%20_exploration_into_the_impact_of_academisation_on_alternative_education_provision_in_england https://www.researchgate.net/publication/309227876_seeking_educational_excellence_everywhere_an%20_exploration_into_the_impact_of_academisation_on_alternative_education_provision_in_england reviewed article 12 ingredient that affects the quality of our justice system and the role of lawyers in the political, economic and social development of our country.’10 globally states have made a commitment to promoting access to education and justice for all, as well as promoting lifelong learning skills. examples include the doha declaration and the sustainable development goals as a strategy for crime prevention, promoting human rights and achieving sustainable development. however, goal 16,11 ensuring public access to information and seeking the protection of fundamental freedoms in accordance with national legislation and international agreements, as key targets, have not being popularized. neither has governmental action reflected a commitment to ensuring same. also, it has become glaringly obvious that advances in promoting the rule of law and access to justice are uneven. in this article we articulate the role of legal clinics in promoting human rights and how the nigerian law school yenagoa legal clinic and the legal support and care centre at gd goenka university use justice education and the provision of legal awareness and access to justice options to promote human rights, access to justice, a culture of lawfulness, and sustainable development through their work in communities, schools and prison. 10 morokenji onolaja, ‘problem of legal education in nigeria’< https://alimiandco.com/wpcontent/uploads/2021/10/accreditation-and-legal-education-in-nigeria.pdf > accessed 13 march 2023 11 focuses on peace, justice and strong institutions reviewed article 13 2. conceptual and theoretical framework 2.1 conceptual framework justice has been differently defined by authors. justice can be used to mean any number of things, like the importance of having rights, fairness, and equality. people will think it is unjust to have their rights violated (like being thrown in prison without being found guilty in a court of law); or being unfairly harmed by someone unwilling to pay compensation for the harm done; or being unfairly treated as an inferior (unequal) who is not hired for a job despite being the most qualified person for the job.12 implicit in several definitions are that it influences the way fundamental rights and duties are distributed by major institutions and how those institutions determine the division of advantages from social cooperation.13 it influences the ability to discern right from wrong, the willingness to uphold and reward right and condemn and punish wrong;14 as opposed to injury or wrong it gives to every man what is due and embraces the justice of decisions, actions, law and institutions made or established to society as they apply to individuals and groups. finally it may be distributive or 12 john gray, ‘ethical realism: three theories of justice’, [2011] <https://ethicalrealism.wordpress.com/2011/04/26/three-theories-of-justice/> accessed 13 march 2023 13 rawlings, j. ‘a theory of justice’ in donald abel (ed) fifty readings in philosophy (mcgraw-hill publishers 2012) 14 chukwudifu oputa, ‘judicial ethics, law justice and the judiciary’ (1990) 5(3) jus 43 https://ethicalrealism.wordpress.com/ reviewed article 14 cumulative.15 john rawlings perceived justice as the first virtue every social institution ought to have. the proper relationship between law and justice has been argued for decades. dakas opines that … the interface of law and justice should ordinarily be a mutually reinforcing one… however as is sometimes …the outcome of a case sometimes occasions what one might call legal injustice… as law teachers we have a critical role to play in engendering a symbiotic relationship between law and justice through… mentoring of students.16 clinical legal education refers to a method of teaching that is concerned with getting law students to be involved in the practical application of legal knowledge and the acquisition of legal skills while also discharging some justice function. clinics promote experiential learning and create a learning environment where students undertake practical work and are able to apply their knowledge, observation and experience to solve real life problems. according to kolb, learning refers to the ‘transformation of experience into effective learning.’17 healey and alan in their review of kolb’s experiential learning cycle describes it as complete and effective when a student in the 15 ibid, 43 16 clement dakas, ‘beyond legal shenanigans: towards engendering a symbiotic relationship between law and justice in nigeria’ in law, justice and society: proceedings of 51st conference of the nigerian association of law teachers, (national association of law teachers 111 abuja, 2017) 17 david kolb (1984). experiential learning: experience as the source of learning and development. englewood cliffs, nj: prentice hall reviewed article 15 learning process undertakes concrete experience, reflective observation, abstract conceptualization and active experimentation.18 joan neal more explicitly described experiential learning thus: you could have students read about drafting contracts or listen to me talk about drafting contracts all year long, and they’re not necessarily going to be better at doing it… you really do have to roll up your sleeves and do it; you have to make mistakes, find out what those mistakes are, correct those mistakes—and then try it again and do better.19 clinical legal education does not only refer to a method of teaching that is concerned with getting law students to be involved in the practical application of legal knowledge and the acquisition of legal skills. it also involves discharging a justice function. clinics have ensured that communities have access to justice and that they have a voice in issues that concerns them. they serve as a vehicle for protection of human rights, ensuring participation, promoting education for justice, human rights, a culture of lawfulness and sustainable development. since it has been proven beyond argument that legal clinics enable students to acquire and develop practical skills needed for legal practice, it is only rational to establish 18 mick healey and alan jenkins, kolb's experiential learning theory and its application in geography in higher education, (2000) 99(5) journal of geography, 185 19 becky beaupre gillespie, ‘the evolution of experiential learning’, [2017] <https://www.law.uchicago.edu/news/evolution-experientiallearning?utm_content=bufferff089&utm_medium=social&utm_source=twitter.com&utm_campaign=b uffer> accessed 13 march 2023 reviewed article 16 and develop legal clinics within law institutions to enable transformative legal education that benefits the students, the university and the communities around the institution. lesley greenbaum identified the need to change the essential character and methodologies of legal education through transformative legal education in order to equip law graduates to participate.20 in our context, clinical legal education is not only a training methodology that is concerned with getting law students to be involved in immediate use of legal knowledge acquired and legal skill developed in a student-centred learning environment, but also opens up space for their identification of injustices and fulfilment of some justice function in education or legal representation with the highest level of integrity and ethics. finally, nulai has described clinical legal education as a ‘multidisciplinary and multipurpose type of education which seeks to develop the skills and competencies needed to strengthen the legal system, providing opportunities for learning social justice concepts.’21 one common recommendation identified by reviews conducted in select jurisdictions is the need to integrate skills-based learning through adoption of a clinical legal education curriculum and teaching methodology. 20 lesley greenbaum, ‘re-visioning legal education in south africa: harmonizing the aspirations of transformative constitutionalism with the challenges of our educational legacy’ (2015) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2575289> accessed april. 5, 2021 21 network of university legal aid institution, ‘the development of clinical legal education,’ (2015) < https://namati.org/network/learning/> accessed 13 march 2023. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2575289 reviewed article 17 the maccrate report of 1989 contributed significantly to the establishments and enhancement of legal clinics in the united states. the report recommended the integration of clinical legal education pedagogy and methodology to legal education in the united states. law schools through well-structured clinical programs should help students understand the importance of the skill of organization and management of legal work. the first nigerian law school clinical law curriculum was introduced in 2008. it included a guiding mission statement: outcome based, learning centred. it focused on knowledge, skills and value. clear rules for formative assessment. people complained about the curriculum, its impact on learning and ideas for redevelopment. the programme was committed to outcome-based learners, adopting centred learning that impacts knowledge, skills and values. a review of legal education in africa in the past decade reveals that one of the weaknesses in african legal education includes a lack of legal clinics to teach skills and sensitize students to local needs and aspirations, providing them with opportunities to attain practical legal skills through their community service programs.22 the positive role being played by legal clinics in the last decade has become prominent. according to the open society justice initiative: clinical legal education provides law students with real-life work experience, develops local legal capacity, and helps protect human rights around the 22 samuel manteaw, ‘legal education in africa: what type of lawyer does africa need’ (2016) 39(4) mcgeorge law review <https://scholarlycommons.pacific.edu/mlr/vol39/iss4/1> accessed 15 march 2021 https://scholarlycommons.pacific.edu/mlr/vol39/iss4/1 reviewed article 18 world. law clinics train lawyers and law students in the spirit of social justice and public service, and provide desperately needed legal services in underserved communities. students working in university based clinics— supervised by a law professor or practicing lawyer—provide legal assistance to poor and marginalized clients, while gaining exposure to the problems faced by these groups. at the same time, law students learn about their professional responsibility for—and develop a personal commitment to—sustaining and supporting the rule of law, human rights, and social justice.23 one major goal of law schools is to produce law graduates who can contribute to legal, social, economic and political development on both global and local scales by developing their analytical, research and advocacy skills to solve academic and practical social problems. educating for justice, human rights and a culture of lawfulness emerged as part of the process of incorporating justice into law and training students to have a strong sense of justice and ethics. it has been observed that to achieve justice through education it is of great importance that citizens have information about their rights, duties and how they can access justice. justice education and education for justice initiatives teach people how systems of law-making and law enforcement works, helps them access people who 23 open society justice initiative, ‘legal clinics: serving people, improving justice’ <https://www.justiceinitiative.org/publications/legal-clinics-serving-people-improving-justice> accessed 02 march 2023 reviewed article 19 work in the justice system, and build their basic skills needed to manage the legal aspects of everyday problems. education for justice is the process of promoting a culture of lawfulness through educational activities at all levels aimed at making citizens understand the law. education for justice aims at teaching the next generation about crime prevention, and to better understand and address problems that can24 undermine the rule of law. in the absence of law, private feud and vengeance supplement the informal social process by which individuals and groups deal with disputes. law evolved to supplement the informal alternatives and provides an acceptable rationalized and conclusive settlement of disputes which is subject to public scrutiny. apart from maintaining of public order, law also suppress deviant behaviour through provision of rules prohibiting certain deviant behaviour and the enforcement of such rules. the doha declaration25 of the thirteenth united nations congress on crime prevention and criminal justice (qatar, 2015) prompted the united nations office on drugs and crime to develop the education for justice initiative, aiming to support the integration of crime prevention and the rule of law into all levels of education. under 24 edeh chukwuemeka, ‘5 basic functions of law in the society’ 2020 bscholarly llc <https://bscholarly.com/5-basic-functions-of-law-in-the-society/> accessed 13 march 2023 25 united nations, ‘doha declaration on integrating crime prevention and criminal justice into the wider united nations agenda to address social and economic challenges and to promote the rule of law at the national and international levels, and public participation’ <https:// www.unodc.org/dohadeclaration/en/index.htm> accessed 26 october 2022 (the doha declaration) reviewed article 20 the doha declaration, member states that signed the declaration made a commitment to promote a culture of lawfulness. the declaration recognizes the need for education for justice and emphasizes that education for all children and youth, including the eradication of illiteracy, is fundamental to the prevention of crime and corruption, and to the promotion of a culture of lawfulness that supports the rule of law and human rights.26 human rights and justice education has globally become prominent in the work of several legal clinics, especially clinics within the global alliance for justice education (gaje) platform. in this paper justice education includes both education for justice and justice education. the work of the global alliance for justice education initiative is founded on the reasoning that law students and lawyers in training can themselves be valuable workers for justice during their time of preparation. on the other hand, the education for justice initiative can be traced to the work of the united nations office on drugs and crime. its initial programme was to prevent crime and promote a culture of lawfulness through education activities designed for primary, secondary and tertiary levels. these activities have become integrated in the work of several law clinics working as educators to teach the next generation, women, men and inmates to better understand and address problems that can undermine the 26 united nations office on drugs and crime, ‘about the global programme. the doha declaration: promoting a culture of lawfulness’ <https://www.unodc.org/dohadeclaration/en/index.html> accessed 26 october 2022 https://www.unodc.org/dohadeclaration/en/index.html reviewed article 21 rule of law and encourage students to actively engage in their communities and future professions in this regard.27 although the united nations office on drugs and crime has developed a series of university modules and other tools to assist academics working on education for justice,28 these tools can be and being adapted to suit the broader framework of justice education and are being used by legal clinicians to design and implement educational interventions aimed at broadening understanding of human rights, citizenship aimed at equipping citizens with the knowledge and understanding of principles of justice, and the attitude and value needed to live a crime free life. such endeavours constructively contribute to the development of society thereby enhancing societies' resilience to crime, violence and corruption while also promoting the rule of law and fostering a culture of lawfulness. forming the foundation and integral part of the justice education and education for justice initiative undertaken by legal clinics is a desire to promote human rights through broadening understanding on human rights by human rights education. human rights education can be defined as any learning, education, training and information sharing efforts aimed at building a universal culture of human rights. human rights education aims at developing an understanding of our common 27 united nations office on drugs and crime, ‘education for justice’ <https://www.unodc.org/e4j/> accessed 13 march 2023 28 united nations office on drugs and crime, ‘tertiary education’ <https://www.unodc.org/e4j/en/tertiary/index.html > assessed 13 march 2023 https://www.unodc.org/e4j/ reviewed article 22 responsibility to make human rights a reality in every community and in society at large. in this sense, it contributes to the long-term prevention of human rights abuses and violent conflicts, the promotion of equality and sustainable development, and the enhancement of participation in decision making processes within a democratic system.29 the need to educate for human rights is one global concern and has been integrated into several human rights documents.30 one area in which there has been encouraging change in most african countries is the increasing attention paid to the teaching of international human rights subjects in law schools. this teaching is aimed at promoting a culture of respect for rights and a protective and responsive legal system that reflects the realization that good governance is a precondition to development.31 29 commission on human rights, ‘resolution 2004/7’1 [2004], para 4 30 universal declaration of human rights, 1948 art. 26; the international convention on the elimination of all forms of racial discrimination, 1965 art. 7; international covenant on economic, social and cultural rights, 1966 art. 13; convention against torture and other cruel, inhuman or degrading treatment or punishment, 1984 art. 10; convention on the elimination of all forms of discrimination against women, 1979 art. 10; convention on the rights of the child, 1989 art. 29; international convention on the protection of the rights of all migrant workers and members of their families, 1990 art. 33; convention on the rights of persons with disabilities, 2006 arts. 4, 8; vienna declaration and programme of action (i) paras. 33–34 (ii) paras. 78–82; declaration and programme of action of the world conference against racism, racial discrimination, xenophobia and related intolerance, 2001 paras. 95–97; programme of action, paras. 129–139; outcome document of the durban review conference, 2009 paras. 22 and 107; and world summit outcome 2005 para. 131. 31 muna ndulo and robert kent, ‘constitutionalism in zambia: past, present and future’ (2002) 40(2) journal of african law, 256 reviewed article 23 2.2 theoretical framework 2.2.1 john locke’s natural law theory john locke32 is of the perspective that natural rights flow from natural law which originates from god. in his work ‘two treatises of government’33 locke discussed natural rights, identifying them as being ‘life, liberty, and property’, and argued that such fundamental rights could not be surrendered in the social contract. he further opined that individuals possess natural rights, independently of the political recognition granted them by the state. in sum, the lockean natural rights theory viewed the individual as an autonomous being capable of exercising choice and that the legitimacy of government depended not only on the will of the people but also upon the government’s willingness and ability to protect the peoples’ rights.34 locke argued that the principal purpose of the investiture of political authority in a sovereign state was the provision and protection of individuals’ basic natural rights. for locke, the protection and promotion of individuals’ natural rights was the sole justification for the creation of government. the natural rights to life, liberty, and property set clear limits to the authority and jurisdiction of the state. states were presented as existing to serve the interests, the natural rights, of the people, and not of a monarch or a ruling cadre. locke went so far as to argue that individuals are 32 1632–1704 33 john locke, two treatises of government (1689) < https://www.britannica.com/biography/johnlocke/two-treatises-of-government> accessed 13 march 2023 34 alison. l. young, ‘in defence of due deference’ (2009) 72(4) modern law review, 554 https://www.britannica.com/biography/john-locke/two-treatises-of-government https://www.britannica.com/biography/john-locke/two-treatises-of-government reviewed article 24 morally justified in taking up arms against their government should it systematically and deliberately fail in its duty to secure individuals’ possession of natural rights.35 2.2.2 immanuel kant categorical imperative immanuel kant developed his idea of natural law, which he called categorical imperative. kant, from the standpoint of a non-empirical perspective, argued that the sole principle of morality is that which treats people as an end and not as a means, and that this principle holds at all times and at all places without exception. kant broke entirely new ground by replacing the objective material and ethical problems that had run through the whole doctrine of the natural law by the problem of subjective morality. the moral autonomy of man is elevated into a principle of the moral world. the moral person, i.e. not the empirical individual as a part of the world of the senses, but rather ‘humanity reflected in his person,’ has become an end in itself and no longer simply a means to attain other ends. kant answers the question as to the nature of moral conduct with his famous categorical imperative: ‘act in such a way that the maxims of your will may at all times also serve as the principle of a universal law.’36 35 andrew fagan, ‘human rights’ internet encyclopedia of philosophy <http://www.iep.utm.edu/hum-rts> accessed 13 march 2023 36 see <https://effectiviology.com/categoricalimperative/#:~:text=the%20categorical%20imperative%20is%20a,act%20the%20same%20way%20too> accessed 13 march 2023 http://www.iep.utm.edu/hum-rts https://effectiviology.com/categorical-imperative/#:%7e:text=the%20categorical%20imperative%20is%20a,act%20the%20same%20way%20too https://effectiviology.com/categorical-imperative/#:%7e:text=the%20categorical%20imperative%20is%20a,act%20the%20same%20way%20too reviewed article 25 kant’s moral philosophy is based upon an appeal to the formal principles of ethics, rather than, for example, an appeal to a concept of substantive human goods. for kant, the determination of any such goods can only proceed from a correct determination of the formal properties of human reason and thus do not provide the ultimate means for determining the correct ends, or object, of human reason. kant’s moral philosophy begins with an attempt to correctly identify those principles of reasoning that can be applied equally to all rational persons, irrespective of their own specific desires or partial interests. in this way, kant attaches a condition of universality to the correct identification of moral principles. for him, the basis of moral reasoning must rest upon a condition that all rational individuals are bound to assent to. doing the right thing is thus not determined by acting in pursuit of one’s own interests or desires, but acting in accordance with a maxim which all rational individuals are bound to accept. kant terms this the categorical imperative, which he formulates in the following terms, ‘… act only on that maxim through which you can at the same time will that it should become a universal law.’ the categorical imperative is self-imposed by morally autonomous and formally equal rational persons. it provides the basis for determining the scope and form of those laws which morally autonomous and equally rational individuals will institute in order to secure these very same conditions. for kant, the capacity for the exercise of reason is the distinguishing characteristic of humanity and the basis for justifying human dignity. as the distinguishing characteristic of humanity, formulating the reviewed article 26 principles of the exercise of reason must necessarily satisfy a test of universality; they must be capable of being universally recognized by all equally rational agent, hence, kant’s formulation of the categorical imperative.37 in kant’s theory, the categorical imperatives operatives on three levels: first, it specifies universal acts of duty on all individuals; second, it provides systematic rules for determining these duties; and, third, it specifies the relationship between freedom and duties.38 in all, this imposes on every individual a duty to develop his rational capabilities and employment them for the happiness of others. this will result in the emergence of freedoms and rights in the society flowing from the categorical imperative. however, such rights will be non-relational. kant’s theory is quite commendable for some of its argument. he argues the sole principle of morality is that which treats people as an end all times and at all places, he recognizes that the right thing could be different in the view of other people and therefore should not be determined by acting in pursuits of one’s own interest and desire and that the capacity for the exercise of reason is the distinguishing characteristic of humanity and the basis for justifying human dignity. the greatest strength of his argument lies in deviating to issues of formulating the principles of the exercise of reason which must necessarily satisfy a test of universality. his argument would have been stronger and precise if the argument for universality recognized that 37 ibid 38 alison young (n34) reviewed article 27 the ethical underpinnings of what is right can be faulted by codification of certain rights and exclusion of others on the basis of none codification. 2.2.3 jeremy bentham positivist theory of utilitarianism. the positivist believes that the content of rights can only be derived from the law of a state. the positivist adopts an empirical method. one of its chief proponents is jeremy bentham who proposed the school of positivism known as the utilitarianism. utilitarianism is based on the idea that the moral worth of an action is determined solely by its usefulness in maximizing utility/minimizing negative utility. that is, the more happiness the outcome of an action gives, the more its moral worth. in other words, to the utilitarian what we ought to do is what will produce more total happiness than doing anything else would. the main message of the utilitarian is that since pleasure and pain dominate the human existence, increasing pleasure will diminish pain and improve man’s life. the aim of utility therefore, was to increase the overall stock of human pleasure, which could be calculated on a mathematical basis. the ultimate test of utility, therefore, was the implementation of rules which gave the greatest happiness to the greatest number of people-the maximization of felicity.39 39 alison young (n34) reviewed article 28 2.2.4 john rawls’ theory according to john rawls, … justice is the first virtue of social institutions, as truth is of systems of thoughts. he sees justice from the perspective of the basic structure of society or more exactly the way in which the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation…40 according to rawls, justice should be thought about from the perspective that anyone will choose behind a veil of ignorance unaware of status, ethnicity and religion. he argues that in such state which he referred to as the original position, no one will choose to be oppressed or to be a victim of religious persecution or racial discrimination or sacrifice their fundamental rights and liberties for social and economic benefits even if this gives pleasure to the majority. he advocates for the rejection of utilitarianism on that ground and that a principle of equal basic liberties for all citizens, including the right to liberty of conscience and freedom of thought agree to and should take priority over attempts to maximize the general welfare. this reasoning is articulated in the following: john rawls theory of the original position imagines men and women with ordinary tastes, talents, ambitions and convictions who though ignorant of the 40 john rawlings, (n13), 494 reviewed article 29 unique features of their personalities who come together to form a social contract. according to rawl’s theory if these men and women are rational and seek only their self-interest, they would choose one of his two principles of justice. the first provide that every person must have the largest political liberty compatible with a like liberty for all; and second that, inequalities in power, wealth, income and other resources must not exist except in so far as they work to the absolute benefit of the worst members of the society.41 2.2.5 john stuart mill contribution to utilitarianism mill was primarily influenced by jeremy bentham. mill's major contribution to utilitarianism is his argument for the qualitative separation of pleasures. while bentham treats all forms of happiness as equal, mill argues that intellectual and moral pleasures are superior to mere physical forms of pleasure. mill differentiated between happiness and contentment and concluded that the former was of higher value than the latter, a belief wittily encapsulated in the statement that ‘it is better to be a human being dissatisfied than a pig satisfied; better to be socrates dissatisfied than a fool satisfied. and if the fool, or the pig, is of a different opinion, it is because they only know their own side of the question.’42 41 michael sandel, ‘justice: what's the right thing to do?’ (2010) penguin publishing, 151-157 42 john stuart mill, ‘(1863) socrates (c. 469bc 399bc)’ utilitarianism, <https://www.utilitarianism.com/socrates.html> accessed 13 march 2023 https://www.utilitarianism.com/socrates.html reviewed article 30 mill defines the difference between higher and lower forms of happiness with the principle that those who have experienced both tend to prefer one over the other. mill was of the view that it is more imperative upon a society to devote more resources to propagating things that will bring about higher forms of happiness. earlier criticism of the utilitarian’s argument that utility be determined by actions that bring happiness to the majority totally undermines human rights which are inherent in every individual. it is certainly incorrect to say rights could not exist outside government right precede the government and the legitimacy of government is derived from its protection of human rights. the subjects of rights are clear, every human being. all humans are equal, their equality does not depend on the sustainability of any argument. the determination of whether any right or law is good is determined by its effect on humankind, relations, laws are good were they codify human rights or puts into place standards that are to give direction on what to do with the end of protecting rights and backed with penalties and measures of deterrence from violating rights. for instance, the laws on murder seeks to protect the right to life, the laws of stealing seeks to protect the right to property. law is therefore a rational human contrivance necessary to protect human rights with the aim of improving social and political life. reviewed article 31 2.2.6 roscoe pound sociological theory of law roscoe pound, one of the chief theorists of the sociological school roscoe pound perceived the law as a means of securing societal ends and meeting social needs. he believes that law will ensure social integration and is an instrument of social engineering. he argues that the success of any society depends on how the law is applied to societal problems. this article aligns with aspects of locke’s theory of natural law, john rawl’s theory of justice and the sociological theory of law but postulates for a theory that mixes aspects of the three theories to create a modern natural socio-positivist theory that will advance human rights and justice. the strength of locke’s natural theory is rooted in his ability to trace the origin of natural rights to god, the recognition that individuals possess natural rights, independently of the political recognition granted them by the state is also commendable and also solid is his argument that individuals are morally justified in taking up arms against their government should it systematically and deliberately fail in its duty to secure individuals possession of natural rights. also, the article aligns with rawls’ justice should be thought about from the perspective that anyone will choose behind a veil of ignorance unaware of status, ethnicity and religion. human right instruments do not create human rights but recognize already existing rights or at most codify some of them depending on the burning issues and man’s progressive reasoning. new human rights instruments will continue to emerge for the continued peaceful coexistence of men as men continue to dominate nature, reviewed article 32 but none of this instruments will confer43 human rights on men, they will at best document rights inherent in man and the obligation they place on state, the codification therefore is as much to remind man of the aspect of the other man he must not violate and for the state to remember the obligations it has to respect for the contract between it and individual to continue because its legitimacy flows from respecting the dignity of the individual. in sum, the rights codified by international, regional and national instruments are aspects of human rights but not the totality of rights. 2.3 international recognition of the right to education, human rights education and education for justice education has been recognized as both a human right in itself and an indispensable means of realizing other human rights. education plays a vital role in empowering the poor and promotes their participation in governance and decision making in their communities, it empowers women, broadens children understanding of their rights, their recognition of exploitative and forced labour, promotes human rights and democracy, protects the environment, and is key to achieving the sustainable development goals. 43 universal declaration of human rights (udhr) 1948 reviewed article 33 a 15-year-old student resident at sector 85 of gurugram was reported to have taken haryana human rights commission (hhrc) ‘for a ride’ as he complained of torture by his parents, but later during police inquiry he told that he was just trying to authenticate what was mentioned in his ncert book on legal recourse to human rights violation.44 while not appropriate behaviour and denounced as bad behaviour, the incident showed that children and youths in the region are aware of their rights and understand what action to take when their rights are violated. the universal declaration of human rights (udhr) recognizes that everyone has a right to education which shall be directed to the full development of their human personality and to the strengthening of respect for human rights and fundamental freedoms.45 the udhr also recognizes the role of human rights education in strengthening respect for human rights and states as follows: … keeping this declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of member states themselves and among the peoples of territories under their jurisdiction.46 44 bhartesh singh thakur, ‘15-yr-old gurugram student takes haryana human rights commission for a ride rights body says the boy is testing their activeness and vigilance’ <https://www.tribuneindia.com/news/haryana/15-yr-old-gurugram-student-takes-haryana-humanrights-commission-for-a-ride-182936#google_vignette> assessed 20 october 2020 45 udhr, art 26 46 udhr, preamble https://www.tribuneindia.com/news/haryana/15-yr-old-gurugram-student-takes-haryana-human-rights-commission-for-a-ride-182936#google_vignette https://www.tribuneindia.com/news/haryana/15-yr-old-gurugram-student-takes-haryana-human-rights-commission-for-a-ride-182936#google_vignette reviewed article 34 international covenant on economic social and cultural rights the right to education is also enshrined in the international covenant on economic social and cultural rights. not only does the convention recognize the right to education, it also articulates the goal for education. the committee on economic, social and cultural rights has stated that all education, whether public or private, formal or non-formal, shall be directed towards the aims and objectives identified in article 13 of the international covenant on economic, social and cultural which states thus: the states parties to the present covenant recognize the right of everyone to education. they agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. they further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the united nations for the maintenance of peace…47 47 united nations economic and social council, international covenant on economic, social and cultural rights [escr] adopted and opened for signature, ratification and accession by general assembly resolution 2200a (xxi) of 16 december 1966 entry into force 3 january 1976, in accordance with art 13 and art 27 reviewed article 35 also, in accordance with article 14, actions towards fulfilling the right to education must be geared towards progressive realization of the right to education as stated thus: each state party to the present covenant …within two years, to work out and adopt a detailed plan of action for the progressive implementation, within a reasonable number of years, to be fixed in the plan, of the principle of compulsory education free of charge for all.48 convention on the rights of the child the convention on the rights of the child provides the mandate not only for human rights education for children but also for orientation on human rights as part of ethical and value training from childhood. article 29 (1) (b) provides that ‘the education of a child shall be directed to the development of respect for human rights and fundamental freedom, and for the principles enshrined in the charter of the united nations’. article 2 of the convention on the rights of the child prohibits discrimination in education. 48 escr, art 14 reviewed article 36 world programme for human rights education the world programme for human rights education was launched by the united nations on 10 december 2004. the world programme for human rights education, a global initiative of the united nations which, since 2005, has encouraged concrete measures to integrate human rights education in all sectors. the emphasis of the world programme’s first phase (2005–2009) was on the school system. the second phase (2010–2014) focuses on those who further mentor tomorrow’s citizens and leaders, such as higher education institutions, as well as on those who have a major responsibility for respecting, protecting and fulfilling the rights of others – from civil servants and law enforcement officials to the women and men serving in the military. the human rights council in resolution 39/3 of 27 september 2018 made youth the focus group of the fourth phase of the world programme for human rights education, with special emphasis on education and training in equality, human rights and non-discrimination, and inclusion and respect for diversity with the aim of building inclusive and peaceful societies, and to align the fourth phase with the 2030 agenda for sustainable development and specifically with target 4.7 of the sustainable development goals. ohchr, in consultation with states, intergovernmental organizations, national human rights institutions and civil society, including youth groups and youth-led networks, elaborated a plan of action for the reviewed article 37 fourth phase of the world programme (a/hrc/42/23), which was subsequently adopted by the human rights council through resolution 42/7 (26 september 2019).49 the international convention on the elimination of all forms of racial discrimination, 1965 this instrument primarily aims to eliminate racial discrimination. article 7 of the convention obliges parties to adopt ‘immediate and effective measures’, particularly in education to combat racial prejudice and encourage understanding and tolerance between different racial, ethnic and national groups.50 the convention against torture and other cruel, inhuman or degrading treatment or punishment (cat), 1984 article 10 of the cat requires states parties to ensure that education and information regarding the prohibition against torture and other forms of ill-treatment are fully included in the training of law enforcement personnel, civil or military medical personnel, public officials and other persons who may be involved.51 49 fourth phase (2020-2024) of the world programme for human rights education 50 the international convention on the elimination of all forms of racial discrimination (1965) art 7 <https://www.ohchr.org/en/professionalinterest/pages/cerd.aspx> 51 united nations, the convention against torture and other cruel, inhuman or degrading treatment or punishment, 1984 (art 10) <https://www.ohchr.org/en/professionalinterest/pages/cat.aspx> https://www.ohchr.org/en/professionalinterest/pages/cerd.aspx https://www.ohchr.org/en/professionalinterest/pages/cat.aspx reviewed article 38 the convention on the rights of persons with disabilities, 2006 this convention identifies and promotes human rights education particularly awareness raising throughout society, including at the family level, regarding persons with disabilities highlighting their capabilities and contributions of persons with disabilities as key strategy to promote respect for the rights and dignity of persons with disabilities.52 one notable provision, 8(2) (i) of the convention, sets out the measures to be undertaken by states to include the following: … (a) initiating and maintaining effective public awareness campaigns designed: (i) to nurture receptiveness to the rights of persons with disabilities; (ii) to promote positive perceptions and greater social awareness towards persons with disabilities; (iii) to promote recognition of the skills, merits and abilities of persons with disabilities, and of their contributions to the workplace and the labour market; (b) fostering at all levels of the education system, including in all children from an early age, an attitude of respect for the rights of persons with disabilities…. in the vienna declaration and programme of action, one of the outcomes of the world conference on human rights, states reaffirmed their duty to ensure that education is aimed at strengthening the respect of human rights and fundamental freedoms as set 52 united nations, convention on the rights of persons with disabilities, 2006 art 8(1)(a) reviewed article 39 out in the universal declaration of human rights, the international covenant on economic, social and cultural rights and other international human rights instruments. the world conference on human rights emphasizes the importance of incorporating the subject of human in rights education programmes and calls upon states to do so.53 the world conference on human rights called on all states and institutions to include human rights in the curricula of all learning institutions in formal and nonformal settings. states are encouraged to strive to eradicate illiteracy by directing education towards the full development of the human personality and strengthening respect for human rights and fundamental freedoms.54 human rights education should include peace, democracy, development and social justice, as set forth in international and regional human rights instruments, in order to achieve common understanding and awareness with a view to strengthening universal commitment to human rights.55 outcome document of the durban review conference the outcome document of the durban review conference recommends that steps be taken at the national level to promote human rights education in all parts of the world 53 united nations, the vienna declaration and programme of action, art 33 54 ibid, para 79 55 ibid, para 80 reviewed article 40 after the adoption in 2001 of the durban declaration and programme of action, particularly in order to sensitize the public at large and to foster respect for cultural diversity.56 the 2005 world summit outcome the 2005 world summit outcome supports the promotion of human rights education and learning at all levels, including through the implementation of the world programme for human rights education, as appropriate, and encourage all states to develop initiatives in this regard.57 united nations declaration for human rights education 2012 the united nations declaration on human rights education recognizes the right to education and access to information as key effective enjoyment of all human rights.58 the united nations declaration on human rights education reaffirms the right of everyone to know, seek and receive information about all human rights and fundamental freedoms and to have access to human rights education and training.59 56 united nations, outcome document of the durban review conference, (2009) para 22 57 the 2005 world summit outcome, para. 131 58 united nations, declaration on human rights education, art 1(3) 59 ibid, art 1(1) reviewed article 41 world declaration on education for all the declaration provides that every person child, youth and adult shall be able to benefit from educational opportunities designed to meet their basic learning needs. the basic learning content includes the knowledge, skills, values and attitudes required by human beings to be able to survive, to develop their full capacities, to live and work in dignity, to participate fully in their development, to improve the quality of their lives, to make informed decisions, and to continue learning.60 the doha declaration at the conclusion of the 13th united nations congress on crime prevention and criminal justice held in qatar, the doha declaration was adopted. calling for the integration of crime prevention and criminal justice into the wider agenda of the united nations, and endorsed by the general assembly, the doha declaration has at its centre the understanding that the rule of law and sustainable development are interrelated and mutually reinforcing.61 the doha declaration62 of the thirteenth united nations congress on crime prevention and criminal justice (qatar, 2015) prompted the united nations office on 60 united nations, world declaration on education for all, art 1(1) 61 doha declaration, (n25) <https://www.unodc.org/unodc/doha-declaration/index.html> 62 ibid reviewed article 42 drugs and crime to develop the education for justice initiative, aiming to support the integration of crime prevention and the rule of law into all levels of education. sustainable development goals (sdgs) goal four of the sdgs requires states to ensure the provision of inclusive and equitable quality education and promote to lifelong learning opportunities for all. two of the indicators of this goal is that states ensure equal access for all women and men to affordable and quality technical, vocational and tertiary education, including university by 2030; increased participation rate of youth and adults in formal and non-formal education and training in the previous 12 months, by sex and increased proportion of youth and adults with information and communications technology (ict) skills, by type of skill and elimination of gender disparities in education and ensure equal access to all levels of education and vocational training for the vulnerable, including persons with disabilities, indigenous peoples and children in vulnerable situations. 4. the role of law schools and clinics in promoting education for justice, human rights and a culture of lawfulness the need for a system of legal education that can be guaranteed to produce such lawyers with necessary skills and capacity to meet the evolving needs of the society reviewed article 43 has been the thrust of legal education and a daring challenge to tackle.63 according to ndulo, muna accessing past decades of legal education in africa64 lawyers produced by the then existing system of legal education in africa were trained to become legal technicians. they were encouraged to have little or no interest or comprehension of the policy issues inherent in the law. they were generally reluctant to criticize current law. even as technicians they had limits hence few were competent to represent national and commercial interests in international transactions, involving complexities of taxation and international finance. however, according to jessup, ‘the law courses of early curricular design did not reflect the needs of the society, and the training of lawyers was based on doctrinaire teaching geared to an adversary setting catering to litigation for the fortunate few at the cost of social injustice to the deprived many’.65 according to geraghty and quansah, ‘african law schools have similar potential to produce the next generation of leaders committed to promoting human-rights through ethical and social responsibility’.66 the lawyer's role is culture-bound, determined by the way in which 63 morokenji onolaja, (n10) 64 ndulo, muna, ‘legal education in africa in the era of globalization and structural adjustment’ (2002) 20(3) penn state international law review, 487, 500 65 grady jessup, symbiotic relations: clinical methodology-fostering new paradigms in african legal education, (2002) 8(2) clinical law review, 377, 387 66 thomas geraghty & emmanuel quansah, ‘african legal education, a missed opportunity and suggestions for change: a call for renewed attention to a neglected means of securing human rights and legal predictability’ <http://lawecommons.luc.edu/lucilr/vol5/iss1/7> accessed 15 march 2021 reviewed article 44 he or she is taught and conditioned to perceive himself, and the way in which he or she is perceived by the non-legal professionals among and for whom he works.67 this gap was not only related to legal education in africa but obviously seem to have been the problem of english legal education as can be implied from the statement of lord sankey set out below thus: our educational methods have to breed a race of lawyers able to utilize the spirit of law reform for highest uses… they have to teach at once the importance of stability and change… we must also turn out lawyers with a courage to criticize what is accepted, to construct what is necessary for new situations, and new duties both at home and abroad.68 the international association of law schools has emphasized the need to produce lawyers who will be advocates of justice as well as law experts who will be advocates of public good.69 the major question academia need to answer are: how do we shape our students to be fit for the justice purpose? what type of lawyer is needed to promote justice, human rights and a culture of lawfulness? and what type of training is needed to produce the kind of lawyer needed? one recurrent recommendation from nations that reviewed the development of legal education was the need for an 67 issa shivji, ‘from the analysis of forms to the exposition of substance: the tasks of a lawyer intellectual’ (1972) 5 1&2 east africa law review, 1 68 lord sankey, referred to in laurence gower, ‘english legal training’ (1950) 13 modern law review, 137, 161 69 the role of law schools and law school leadership in a changing world (2009), <https://www.ialsnet.org/annualmeeting/the-role-of-law-schools-and-law-school-leadership-in-achanging-world/> accessed 13 march 2023 https://www.ialsnet.org/annualmeeting/the-role-of-law-schools-and-law-school-leadership-in-a-changing-world/ https://www.ialsnet.org/annualmeeting/the-role-of-law-schools-and-law-school-leadership-in-a-changing-world/ reviewed article 45 appropriate interactive teaching methodology that focuses of acquiring knowledge, skills and ethics using an interactive training method that permits immediate practice of skill learnt. the trend across the globe has shifted from traditional legaleducation to legal education for justice education which is inspired by justice education campaigns.70 in the united states as in several countries including nigeria and africa standards and rules of procedure for approval of law schools now focuses on development of curriculum of law programs that provides substantial opportunities to students for law clinics or field placement(s) and promotes student participation law-related community service activities.71 law schools are encouraged to promote opportunities for law student pro bono service. in the united states, law-related public service activities have been defined to include: helping groups or organizations seeking to secure or protect civil rights, civil liberties, or public rights; helping charitable, religious, civic, community, governmental, and educational organizations not able to afford legal representation; participating in activities providing information about justice, the law or the legal system to those who might not otherwise have such information; and engaging in activities to enhance the capacity of the law and legal institutions to do justice.72 70 deborah rhode, ‘access to justice: an agenda for legal education and research, consortium on access to justice' (2013) 62(4) journal of legal education, 531 71 america bar association, standard 303 (b) (1) & (2) of the aba, aba model rules of professional conduct 72 interpretation 303-4 reviewed article 46 another driving force of the social justice mission of legal clinics in nigeria is the release of the draft bench mark minimum standards for academic programme (bmas) by the nigerian national universities commission in 2015 which is aimed at developing appropriate training methods aimed at producing law graduates who can compete actively in legal, social, economic and political development on a local scale.by developing the analytical, research and advocacy skills of students who can apply their knowledge to solve academic and practical social problems. this greatly influenced the growth of law clinics especially life clinics were students are able to interact within the society the law schools are situated enabling law and justice to make meaning to the students in line with vygotsy theory of experiential learning which stresses the fundamental role of social interaction.73 4.1 the role of the nigerian law school yenagoa law clinic in promoting education for justice, human rights and a culture of lawfulness the mission of the nigerian law school yenagoa law clinic programme is to train, facilitate and mentor law school students and supervise their work as they contribute to promotion of social justice by providing correct and valuable assistance to the communities. this is achieved by providing opportunity for experiential learning, create a thirst for justice in law students by permitting them to have life contact with 73 for further reading on lev vygotsky, see american educational research association, dewey and vygotsky: society, experience, and inquiry in educational practice (2001) <https://www.jstor.org/stable/3594354?seq=1> accessed 13 march 2023 https://www.jstor.org/publisher/aera?refreqid=excelsior%3a327088ad7958f6fbc8909cbe76bcb242 https://www.jstor.org/stable/3594354?seq=1 reviewed article 47 society to be able to directly hear of social and legal issues confronting communities around and afford them opportunity to provide education and solutions to communities, school students and inmates through clinic projects while preparing for their legal career. although the nigerian law school yenagoa law clinic is broadly split across several clinical programmes and projects undertaken by each clinic, the focus of this article is to shine a light on activities related to human rights and justice education, and education for justice and a culture of lawfulness. it is worthy to note that the assignment of students to law clinics is preceded by first induction training in clinical legal education and law clinics during the orientation week and a more detailed induction course which serves as a capacity building course for law clinicians which is closely followed by clinic placement and a strategy meeting for each clinic to generate their own education and advocacy plan and focus. so while students do not choose the legal cases that come to the clinic, they have the opportunity to choose their own education project, develop their own plan for teaching and their own advocacy strategy. the mandate for the clinics’ work on education for justice, human rights and a culture of lawfulness are international instruments and declarations including the doha declaration, the plan of action for the world programme for human rights education, the united nations global framework related to drug control, the sustainable reviewed article 48 development goals and agenda 2030 and other national legislation and policies like the nigerian constitution and the child’s right act. the beneficiaries of past education projects include school children, youths at the nigerian law school, inmates, law officers and communities. the secondary school’s outreach programme on education for justice, human rights and a culture of lawfulness focuses on teaching secondary students about human rights and especially familiarize them with the child’s right act, training and interacting with them on crime prevention and anti-social vice especially cultism, drug abuse & crime generally founded on developing a value system founded on integrity and ethics and facilitating their interaction and participation in discussions and in identifying underlying factors that drive anti -social vices and criminal activities like cultism and drug abuse, hence enabling them to rake a stand for a culture of lawfulness. secondary students are able to share their experience and that of their peers and are given access to counselling opportunity from clinicians. another aspect of the programme on education for justice, human rights and a culture of lawfulness focuses on educational activity targeted at training inmates and awaiting trial detainees on a culture of lawfulness and getting them to commit to a crime free life on reintegration into society. at the interactive session inmates are able to ask questions and make contributions. the clinic’s activities also extend to training of students within the law school on prevention of drug abuse and distributing reviewed article 49 materials donated by centre for human rights and climate change research and foundation for a drug free world. also worthy of mention is the training of police officers on torture and arbitrary detention, the first of this was the akenfa police station education program on torture and arbitrary detention focused on training police officers and an interactive session with police officers with question and answer. the next attempt at the programme met with bottleneck which led to an adjustment to focus on just the police station close to the law school but on the state headquarters with participants from all police stations in yenagoa. lastly, there is a pending proposed with the objective of training of prison officials on minimum standards for treatment of prisoners which been temporally put on hold. the nigerian law school yenagoa law clinic programme is closely linked and integrated with the clinic’s broad goal of justice education and also integrates aspects of the sustainable development goal. while the clinic seems transitory as a result of other aspects of the law school including its externship programme, the clinic still aims for sustainability and transition that keeps its goals alive and hopes to in future build capacity to serve as nurturing ground for externs with strategic collaborations. reviewed article 50 4.2 the role of indian law schools and law clinic in promoting education for justice, human rights and a culture of lawfulness legal aid is based on the premise that the inability to enforce fundamental or basic rights is as bad as not having the rights at all. it enables people to access information about their rights, entitlements, and duties. therefore, ensuring legal aid to the needy is critical for empowering people living on the margins of society. as it provides a forum to facilitate enforcement of rights related to family, labor disputes, and discrimination, thus it is fundamental to protect meaningful access to justice. for this reason, article 14(3(d)) of the international covenant on civil and political rights states that if a person does not have legal assistance, then it should be assigned to him/her.74 nonetheless, in the interests of justice, if the person does not have sufficient means to pay for it, then it should be provided without payment.75 similarly, the 2030 agenda for sustainable development recognizes ‘the need to build peaceful, just, and inclusive societies which provide equal access to justice and are based on respect for human rights.’ it highlights the importance of ensuring ‘access to justice for all’ in achieving sustainable development.76 74 united nations, international covenant on civil and political rights, art 14(3)(d) <https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-andpolitical-rights> assessed 13 march 2023 75ibid art 14(3)(d) 76 united nations general assembly, resolution adopted by the general assembly on 25 september 2015 [without reference to a main committee (a/70/l.1)] 70/1. transforming our world: the 2030 agenda for sustainable development goal 16 reviewed article 51 although the above international instruments and the many national constitutions categorically state the need to make the legal system accessible to all to promote human rights. however, in the absence of an efficient legal system and lack of resources, people, due to either vulnerable circumstances or poverty, are excluded from the formal justice system. therefore, the legal system is unduly weighted towards one section of society and exclusionary towards another, leading to social exclusion and powerlessness among the poor and marginalized sections of society. through the legal aid system, the governments’ attempt to create an inclusive legal system. however, its policies towards legal aid, by and large, are either remain ad-hoc or poorly administered if enforced at all. in such a situation, what could be the most effective way to ensure that legal aid reaches the most vulnerable social groups? one way to make the legal aid scheme more effective is to enroll universities and law schools. under the supervision of a professor, legal aid clinics (lac) should be allowed to develop local legal assistance programs for the poor and marginalized, which will enable law student’s exposure to understanding the root causes of legal issues and probe them through interdisciplinary approaches. as awareness of legal aid is critical for implementing legal assistance policies, universities or law schoolbased lacs through public platforms or activities such as drama and other outdoor street awareness programs can broadcast information about legal aid services to the public. such awareness programs will promote understanding and knowledge of the law, and by asserting rights, people resolve legal matters. reviewed article 52 on the other hand, through encounter and interaction with people and clients, including women and children, prisoners, and villagers, the law students will be exposed to cases involving discrimination, housing or rent disputes, domestic violence, divorce and child custody, and consumer rights, among other issues. thus, the lacs can provide law students opportunities to the range of the social problems and challenges people face in society. this way, the students will get to know how law functions in society, especially when there is an increasing emphasis on learning the law in context, apart from being skilled in the theoretical aspect of legal education. consequently, the lacs system teaches law students that disputes can be resolved relatively and peacefully by using the law and equipping them to work towards social justice issues. thus, if effectively utilized, the legal aid program can be used to ensure access to justice and contribute to the promotion of social justice and upholds the rule of law and creates a culture of lawfulness. 4.2.1 case study from legal aid cells set up at two private universities77 in india: one of the main focuses of these legal aid societies being set up at these law schools is to teach community service to law students as clinical legal education doesn’t just aim to build lawyering skills but also cultivate humanities in legal education. in india, both these clinical legal education aims are farfetched dreams because of the poor state 77 legal support and care centre at gd goenka university and legal aid society at the northcap university, gurugram, haryana, india reviewed article 53 of law school facilities for proper training and mechanism. advocacy is more or less is a technical aspect of reading law, whereas cultivating humility and humanities in legal education is far more complicated. from 2015 to 2017, the legal aid cell of gd goenka university, associated with various ngo’s, i.e., kamalini, navjyoti foundation, unnati charitable trust in the nearby areas bridging the gap between community and students and provided a platform to spread awareness and help people who were actually in need of legal assistance. workshops were conducted to explain how to file right to information on ongoing development projects in the respective areas and focused on approaching the chief minister grievance cell, i.e., cm window78 to so that people can get heard themselves and resolve the issues. we have touched upon various problems prevailing in our society and made villagers aware of policies and schemes drafted by the local government. in 2019, the legal aid society of the school of law at the northcap university proactively participated in organizing various legal aid activities through organizing camps and awareness drives on particular issues. plea bargaining. an awareness camp on plea bargaining was organized for under-trial prisoners in bhondsi jail (district jail) in haryana, india, to understand whether the prisoners are aware of the plea-bargaining process or not. surprisingly, the general on-the-spot findings after conducting interactive sessions with women and men cells in the jail indicated that 78 <https://haryana.gov.in/cm-window/> reviewed article 54 only one percent of total prisoners were aware or informed by their advocates. students of the legal aid society prepared a report and submitted the same to gurugram haryana, the district legal services authority. this project made students learn more about the concept of criminal procedure and how the system itself is denying legal rights 4.3 impact of lock-downs and social distancing on human rights and justice education the past one year ushered in a range of government sanctioned lock downs and social distancing directives aimed at risk-control across nigeria, india and several countries round the globe in an attempt to curtail the spread of the coronavirus diseasecovid19. the educational sector and justice sector seem to be among those worst hit with closure of schools to students physically for one year and very restricted access to online court sitting. physical school attendance and learning at the nigerian law school was disrupted from march 2020 to february 2021 when students resumed. although in nigeria the nigerian law tried to adapt by introduction of online lectures using google meet, the consequential socio-legal and economic burden will be borne disproportionately not only by students but also by communities. the almost global school closures not only disrupted learning but also disrupted access to vital school/student-provided services including justice education and access to justice. human rights and justice education including education for justice and a culture of lawfulness which has always thrived on the wings of having physical access reviewed article 55 to secondary school students, to communities and inmates and being able to organize legal literacy programmes in schools, communities and prisons was frustrated leaving more people behind in having access to justice including understanding of the rule of law and in achieving goal 16 of the sustainable development goal. use of technology in justice education to reach the most marginalized is the greatest challenge of our law clinics at this time. while it has been realistic to continue legal justice education within the law school community using technology during the pandemic as evident in the last world’s environment day event by the nigerian law school yenagoa law clinic. it was difficult to link clinicians with secondary school students or inmates during the pandemic. 5. conclusion and recommendation the equitable application of human rights principles to current and future societal problems are an indispensable requirement of justice. legal education and capacity development through the activities of law clinics as evident in the activities of the nigerian law school yenagoa law clinic and the legal support and care centre at gd goenka university and legal aid society at the northcap university, gurugram, haryana, india is playing a huge role in crime prevention, promoting access to justice and promoting value for integrity and a culture of lawfulness and has become very relevant to sustainable development. reviewed article 56 legal clinics situate in law schools have been part of the history of access to justice for communities and the marginalized and are playing a very vital role in human rights education and education for justice and need to be strengthened. the covid-19 pandemic has revealed that apart from physical learning in school there is need to integrate the use of technology for lectures into law clinic’s human rights and justice education activities by investing in building the capacity of secondary school students and communities on the use of ict. where well developed, the use of ict can serve as a contingency plan for human rights and justice education in times of emergency. there is need to institutionalize law school-based clinics in universities globally to expand the scope of human rights and justice education. special issue: adrian evans festschrift adrian evans festschrift special issue editorial kate seear, monash university, australia in november 2018, monash university had the privilege of hosting the annual ijcle conference. the conference has long given clinicians from across the world an opportunity to come together and share findings from research into clinical legal education. the conference brings more junior and senior clinicians together, too, and allows clinicians to share stories and ideas and to deliberate about and debate problems pertaining to the clinics they work in. professor adrian evans is one of the true stalwarts of clinical legal education, and has been a regular attendee at the conference over many years. many of those familiar with the work of ijcle will also be familiar with adrian’s enormous contribution to the fields of clinical legal education and legal ethics over the last four decades. in 2018, adrian announced he would be retiring from academia. somewhat serendipitously, adrian’s retirement coincided with adrian’s own university (monash) hosting the ijcle conference, and thus gave us an opportunity to celebrate adrian’s work with colleagues from across the globe. this celebration took the form of a special event (a ‘festschrift’) over one afternoon, before the commencement of the ijcle conference. the event was a mix of personal and professional reflections on adrian’s life and career, offered by a range of colleagues. it was also an event of varying emotions and formats. there was serious, academic reflection on adrian’s contributions to scholarship, alongside musical tributes and jokes, and reflections on behalf of his family, delivered by adrian’s partner maria bohan. the event also coincided with an address from the dean of the monash faculty of law, professor bryan horrigan, in which he spoke about adrian’s crucial role in the establishment of the faculty’s clinical guarantee, and where he announced publicly for the first time that adrian would be appointed as an emeritus professor. professor elaine hall invited us to turn the festschrift event into a special issue of the ijcle journal in honour of adrian. this special issue contains photographs from the day and contributions – in a range of forms – from all of those who spoke at the event, including remarks from adrian himself. 2 reviewed article – research and impact a systematic review of the literature in europe relating to clinical legal education rachel dunn, northumbria university, uk[footnoteref:1] [1: rachel is a third year full time phd student at northumbria university.] abstract as my phd research is european focused, looking at knowledge, skills and attributes development in live client clinics, i wanted to find all the european literature relating to clinical legal education. the aim of this research was to find all of the european literature surrounding clinical legal education available to me, to explore the kind of research published and to identify any gaps in knowledge. with an explosion of literature within the field, and more research undertaken every year, finding the literature which related to my research was challenging. to help aid this work i embarked on a systematic review, building on work by tribe mkwebu,[footnoteref:2] systematically searching for peer reviewed articles. this research was initially presented at the european network of clinical legal education’s spring workshop, 2015, northumbria university.  this article highlights the journey through this literature. firstly, it explains what a systematic review is and how it can be used within mixed methods research. it then goes on to outline the methodology used and the number of articles sourced, excluded and synthesised. the analysis shows the amount of papers published before 2015 and their basic content. finally, i discuss my reflection on the systematic review, what i thought went well and what didn’t, explaining how it was received at the workshop.  [2: mkwebu t, 'a systematic review of literature on clinical legal education: a tool for researchers in responding to an explosion of clinical scholarship' (2015) 22 international journal of clinical legal education 238 ] keywords clinical legal education; europe; systematic review; law clinics; legal education introduction clinical legal education (cle) is a vastly growing area for academic research worldwide. cle, at its simplest ‘is a method of training law students by putting them in situations where they must apply the legal theory, principles, and doctrines they have studied in the classroom setting.’[footnoteref:3] this method of teaching is extensively researched and published globally. doing a basic search for materials online will bring you many articles from the us, uk, australia and canada. other regions of the world, such as africa and asia, have begun to publish their research more over the last decade.[footnoteref:4] the same cannot be said of europe, this continent seeming to produce less research on their clinics. thus, it was vital for my phd research to explore what research is already available and what can be further developed. [3: bucker a and woodruff a, 'the bologna process and german legal education: developing professional competence through clinical experiences ' (2008) 9 german law journal, p. 578] [4: the fact that clinics have grown in africa and asia can be seen in bloch fs, the global clinical movement: educating lawyers for social justice (oxford university press 2010). furthermore, from my searches i was getting many results for these continents with has led me to draw the conclusion that they have started to publish more. cle started in africa in the 1960’s and asia in the last decade or so. also, see mkwebu t, 'a systematic review of literature on clinical legal education: a tool for researchers in responding to an explosion of clinical scholarship' (2015) 22 international journal of clinical legal education 238] this paper highlights where the european clinical research has come from and the methodology of the systematic review used to find it. the preliminary findings of this systematic review were presented at the european network of clinical legal education (encle) spring workshop, held at northumbria university in april 2015.[footnoteref:5] i will refer to this workshop during this paper. it is appreciated that since this research was conducted there have been many more papers published in cle within europe. however, i wish for this paper to be used more as a guide of conducting systematic reviews within our field and how it can be used to further our collective research agenda. [5: https://www.northumbria.ac.uk/media/4738635/call-for-interest-encle-osife-newcastle-15-16-april-2015.docx] what is a systematic review? a systematic review, as khan et al suggest, is, ‘a research article that identifies relevant studies, appraises their quality and summarises their results using scientific methodology.’[footnoteref:6] the amount of research conducted and published into cle has increased greatly over the years and the possibility of reading it all is not likely, if not impossible. a systematic review can combine research questions and key words in order to perform a rigorous search for literature, narrowing search results. [6: kahn ks and others, 'systematic reviews to support evidence-based medicine: how to review and apply findings of healthcare research.' (2003) the royal society of medicine press] there are key phases to a systematic review, formalised through the cochrane collaborative over 20 years ago, which were followed during this review. the key phases are: 1) ‘mapping the field through a scoping review 2) comprehensive search 3) quality assessment 4) data extraction 5) synthesis 6) write up.’[footnoteref:7] [7: jesson j, matheson l and lacey fm, doing your literature review: traditional and systematic techniques (sage 2011) p. 108] the advantages of conducting a systematic review are quite strong, in a methodological sense. for example, it allows a comparison of research papers available in order to assess consistency of the research. due to its robust nature and its methodological structure results are often more reliable or accurate.[footnoteref:8] this is due to its scientific nature. its purpose is to aid a particular question or hypothesis and test it. with my particular question in mind a systematic review appeared a better fit. to attempt to find all of the peer-reviewed literature regarding cle in europe, the scientific methodological way of searching, using key words and wide searches, meant that i was more likely to answer my research question, as opposed to using a narrative literature review. as i had searched in such a comprehensive manner, searching all of the databases i did and following the cochrane collaborative model, reliability would naturally flow from my results. by looking at all of the articles i could find i reduced the bias, which may sometimes be present in a narrative review, and added strict criteria to the articles used to answer my research question. having this research question in existence i could keep my searches in line with what i actually wanted to know, creating the rigour needed to not stray from my research area. [8: greenhalgh t, 'how to read a paper: papers that summarise other papers (systematic reviews and meta-analyses)' (bmj, 1997) <http://www.bmj.com/content/315/7109/672> accessed 28.04.15] there are limitations to this methodology in order to locate relevant literature, which will be discussed in more detail below. it is a particularly time-consuming process, which can take weeks to complete. however, the rigour and comprehensive nature of this research methodology ensures that essentially all the articles in a certain area on the databases are found. the comprehensive nature occurs because i am finding all of the relevant peer-reviewed articles published to answer my research question. when i say a systematic review is rigorous piper suggests that: ‘when faced with any question, being able to conduct a robust systematic review of the literature is an important skill for any researcher to develop; allowing identification of the current literature, its limitations, quality and potential.’[footnoteref:9] [9: piper rj, 'how to write a systematic literature review: a guide for medical students' (2013) nsamr, university of edinburgh, p. 2] this rigour applies to appraising the research as well as finding it. finding the research and following the set structure means that all literature identified should be in the research area. at the appraisal stage articles are excluded which are not deemed to eligible for inclusion and those left are submitted to a weight of evidence test. this test seeks to assess the quality of the research that has been found from the systematic review, but is important to note that papers are not necessarily excluded due to appraisal.[footnoteref:10] rather, sufficient weight should be attached to them in light of the appraisal. [10: jesson j, matheson l and lacey fm, doing your literature review: traditional and systematic techniques (sage 2011) p. 108.p, 114.] thus, this systematic review is not only identifying the literature already available in europe, but also its strength, reliability and relevance to the research question. this is why it was chosen for this particular research. narrative or systematic literature reviews? a narrative literature review differs greatly from a systematic review, and is considered the more traditional approach. they can be more critical, assessing theories, putting the research into context and discussing the background of the research in more depth. articles are selected by the author, based on his opinions. there are advantages to doing a traditional literature review. for example, they can go into a deeper discussion about the research and its theory, following a trail of different authors, their academic discussions and how their research has developed. it can be argued that this provides a richer literature review, discussing certain elements of research in great depth. other articles and materials for the review can be found in footnotes and bibliographies, one piece of work providing for another. however, narrative reviews have been criticised by academics. garg, et al highlight an issue that, ‘it is sometimes uncertain whether the author of a narrative review selectively cited reports that reinforced his or her preconceived ideas or promoted specific views of a topic.’[footnoteref:11] thus, due to an author choosing what is included in their review, and having the freedom to exclude materials which may not reinforce their opinion or theory, we may not be getting the entire picture from a narrative review. this is the issue of bias. we only see what the reviewer would like us to see, potentially reducing the reliability of the review. reviewers, after all, are experts in their field, with opinions about the publications which exist; it can be hard to separate that opinion from a literature review. i am not enforcing that every literature review must be systematic and narrative reviews are always unreliable, but a good, methodologically sound, systematic review eliminates the temptation to exclude material which otherwise should be brought to the attention of the reader. [11: garg ax, hackam d and tonelli m, 'systematic review and meta-analysis: when one study is just not enough' (2008) 3 clinical journal of the american society of nephrology, p. 253] using a systematic review was the most appropriate literature review for my research question. a narrative review would not have produced the same results and i would have missed many articles if i had used this alternative. using qualitative studies in systematic reviews systematic reviews, traditionally, contain only quantitative studies within the evaluations of their materials. this is due to their scientific nature, and quantitative studies viewed as supporting a hypothesis or research question more appropriately. however, due to the total amount of papers sourced in this systematic review being conceptual and qualitative in nature it is necessary to discuss the use of these kinds of papers. as petticrew states, ‘qualitative research can identify the range and nature of impacts of interventions and can give sense of whether they are rare or common. it can identify unintended, unanticipated impacts.’[footnoteref:12] he notes that systematic reviews containing qualitative research are becoming more common, and the impact that they can have should not be ignored. qualitative studies can help us to answer research questions which may not be answered through quantitative studies, and including them in a systematic review may create a more reliable result to the research question. petticrew maintains his argument with roberts, advancing that, ‘there is clearly enormous scope for improving the means of accumulating the knowledge gained through qualitative studies.’[footnoteref:13] thus, quantitative studies can help to improve the knowledge that is gain through qualitative research, providing more depth to the answer of a research question. the nhs centre for reviews and dissemination now provide, in their guidance of undertaking systematic reviews[footnoteref:14], the advantages that using qualitative data may provide. some academics have warmly welcomed this, agreeing that using this kind of data can add a new perspective on systematic reviews, one that quantitative only studies may lack. however, there are still some issues with using this kind of data in a systematic review. dixon-woods and fitzpatrick outline them as: [12: petticrew m, 'time to rethink the systematic review catechism? moving from 'what works' to what happens'' (2015) 4 systematic reviews] [13: petticrew m and roberts h, systematic reviews in the social sciences a practical guide (2006), p. 71] [14: nhs centre for reviews and dissemination, undertaking systematic reviews of research on effectiveness: crd's guidance for those carrying out or commissioning reviews, (2001, 2nd ed.) ] 1) rigour is important when searching for a systematic review. searching for qualitative studies can be ‘frustrating’ or difficult 2) a suitable way to appraise qualitative studies has not yet been agreed. the models for quantitative studies are not appropriate 3) how do we synthesise and conduct secondary-summary with qualitative data?[footnoteref:15] [15: dixon-woods m and fitzpatrick r, 'qualitative research in systematic reviews' (2001) 323 bmj accessed via: http://www.bmj.com/content/323/7316/765 last cited 15/05/15] whilst these are issues for a qualitative systematic review, they are not complete barriers to conducting one. i appreciate that appraising the studies does not have a set methodology, but i believe that if you are clear with your appraising methodology this should not be a huge issue. this systematic review contains only qualitative research, forcing me to exclude the meta-analysis stage of a traditional systematic review. even though there is no quantitative data to extract and synthesise from the research, there is still a strong opportunity to analyse qualitative data using this method. petticrew and roberts highlight that systematic reviews are a great method that ‘can be used to summarize, appraise, and communicate the results and implications of otherwise unmanageable quantities of research.’[footnoteref:16] however, they add to this by stating that systematic reviews can lack an actual substantive discussion of the literature, and the ‘communication’, element should be greater if systematic reviews are to be ‘really useful’.[footnoteref:17] this communication element is more prominent in a traditional literature review approach. i hope that the increasing use of qualitative studies in systematic reviews will result in greater communication of the information available for particular research questions. [16: petticrew m and roberts h, systematic reviews in the social sciences a practical guide (2006), p. 10] [17: ibid] as the cochrane collaborative follows the key phases, outlined above, i had to modify some phases slightly, particularly the synthesis stage, in order to fit my methodology and the sole use of qualitative research. aims of this systematic review · to find all of the peer-reviewed and published research available regarding cle in europe · explore what research has been published in this area (area concerning both research and regional) · analyse the research, looking at whether it is theoretical or empirical, and the reliability attached to it · to identify any gaps in knowledge or further research that can be conducted. looking at the aims of my systematic review, they were partially met. i did find all of the peer-reviewed and published research available regarding cle in europe. i did explore and analyse the research. however, i do not think i can state that i found all of the gaps in knowledge or can definitely say what further research needs to be conducted in this area. this will be discussed in more depth in the section discussing the limitations of this systematic review. research question and how it was formulated what research has been published in europe regarding clinical legal education and what is missing? formulating my research question was not a particularly difficult task. as i wanted to know what research had already been done in europe generally it was easy to express in a question. i was gathering any articles relating to cle from the continent, and not narrowing it down to specific cle issues. thus, i wanted to gather articles that related to establishing a clinic, sustaining it, teaching methods, social justice aspects, assessment or any other research topics available to cle. consequently, my research question became rather broad to capture all of those research areas. mapping and scoping the first phase of this review was to design a plan to conduct the systematic review. i already knew that there are more articles produced in the uk than there are from continental europe. however, i knew that some countries had published research and engaged with cle more widely than others. thus, there were some countries highlighted for specific searches with a general european search to catch anything that may be missed. the key words were developed from the research question. ‘clinical legal education’ was the main search term as this is the most relevant part of the research question. the remaining key words were the countries i had identified as more likely to have published in this area, and then a general europe search. the ‘sweeping searches’ used more general terms that were wider than the research question, to ensure i had captured all of the materials available to me. the results of these searches have not been included in the final prisma diagram, as they did not form the main part of the search. they were used as a final check, and did not provide me with any further articles (see appendix 1). i decided that i would not have a time limit, or a start date, to my searches. i wanted to find all of the articles available to me, regardless of when they were published. this worked quite well, as the modern wave of cle started in the 60’s, mainly in the us, australia, canada and the uk.[footnoteref:18] as continental europe mostly did not begin engaging with cle until later, i knew i wouldn’t have to go too far back. thus, having a start date for my searches did not really make too much of a difference to narrowing down my searches for europe. [18: bloch fs, the global clinical movement: educating lawyers for social justice (oxford university press 2010), p.3] comprehensive search: how i searched for the materials choosing databases as this area covers law and education, i choose databases which i knew would provide either these areas, or predominately providing one of them. · heinonline is a database that covers both these disciplines, with many clinical focused journals subscribed to, rather than just educational. consequently, most of the articles included in the full text analysis were from this database. · westlaw is a database that primarily archives legal articles. however, they do bring results up for the international journal of clinical legal education (ijcle). whilst they are not actually subscribed to on this database, it is an open access journal, with all of the archives available online. thus, the results from these hits were recorded from this database and accessed via the ijcle website. · lexisnexis is another legal based database. it was included in the database selection to cover all of the main legal databases that are commonly used in legal research. · lawtel is another legal database, but one that does not commonly archive legal education articles. again, it was to ensure that the main legal databases had been searched. · sage is a socio-legal database, and sometimes legal education is included within socio-legal studies. this database was used to search a much broader variety of articles, rather than strict legal databases. · the social science research network, again, is a much more boarder database, that does archive some legal education articles. it was chosen in order to conduct another broader scoping look at the articles that are available. searching in order to find materials on the databases i used the boolean operators, to narrow down my searches. boolean operators use simple words, such as and, not and or, to narrow down results and link search words together. i used the operator and consistently throughout my search. the knowledge that the majority of material published in this area originates from the us, australia, canada and the uk meant that i knew most of the results would originate from these countries. for continental europe there is a lack of research, with some countries publishing slightly more and some not at all in research outlets. with this knowledge already in place it was vital to narrow down the searches to certain countries within europe to avoid great volumes of articles from countries that were not relevant. i selected countries that i knew had many clinics or had published limited research on the clinics that had been established recently. thus, in my search terms i used ‘clinical legal education and [selected country]’ to find articles relevant to that region. it is appreciated that not all european countries were included as a search term. from my initial searches i knew that many articles appeared in most searches for any country, even if not the specific country searched. thus, i searched countries i knew had published on cle already. lastly, i would search for ‘clinical legal education and europe’, as a final search to ensure that i hadn’t missed any articles from the continent. it was not practicable to search for every country in europe separately, but finding countries not searched appear in the results for other multiple times was reassuring and they were added to the results. i did attempt to use not as a search operator, but it did not provide desirable results for some databases. during my searches there would be many results relating to clinical medical education and clinic trials in health. they actually formed the majority of my search results for heinonline and sage. when using ‘not medical’ or ‘not health’ after my usual search term to narrow down results it only brought up more articles rather than producing less. thus, i stopped using not as a search operator and would sift through all of the articles produced for my initial search rather than narrowing them down any further. this was an issue and added time onto the systematic review, but there were not so many results that it became impossible to do in the timeframe allowed. i did not use the search operator or at all during my searches. there was no specific reason for this, just that i wasn’t searching for multiple research areas of cle, just any materials from europe. i could have used ‘clinical legal education or law clinics and [selected country]’, but i felt it would have brought up the same results, which would be added to the duplicate list. for lexisnexis and westlaw i decided to do a ‘sweeping search’[footnoteref:19] using different terms to ensure that i had recorded all of the relevant articles from those databases. as heinonline was my greatest source of articles i did not find this necessary use for these searches, as the majority of articles were produced on my initial searches. the ‘sweeping searches’ ensured that i had searched and recorded all the articles available to me. by using different search terms to ‘clinical legal education’ i was able allow for potential articles with a different description of this method to be found. [19: see appendix 1] i stopped searching when the records recovered from the searches were displaying irrelevant articles, or the only relevant results were mainly duplicates. once i started to record many duplicates it was realised that the material available to me was already recorded to be read in full text. i felt that the databases used and the search terms confirmed that i had collected all the material that i possibly could from my institution’s accessible databases. search terms and databases databases searched with dates: heinonline 9/03/15 17-03-15 westlaw 17/03/15 lexisnexis 9/03/15 lawtel 17/03/15 sage 04/04/15 05/04/15 social science research network (ssrn) 06/04/15 search terms: clinical legal education and poland clinical legal education and germany clinical legal education and croatia clinical legal education and uk clinical legal education and russia clinical legal education and ireland clinical legal education and czech clinical legal education and france clinical legal education and northern europe clinical legal education and europe additional ‘sweeping’ searches for lexisnexis and westlaw: law clinics and europe legal education and europe search limitations language (any articles not in english) databases not subscribed to by my institution geographic (any research not produced or conducted within europe) inclusion/exclusion criteria · title many articles were included from their title. it was easy to see articles that were highly relevant to the search as they normally stated the country and kind of cle it is discussing. for example, it was easy to see from the title, ‘the next step forward: the development of clinical legal education in poland through a clinical pilot program in bialystok[footnoteref:20]’ is obviously an article regarding cle in a european country. [20: skrodzka m, chia j and bruce-jones e, 'the next step forward the development of clinical legal education in poland through a clinical pilot program in bialystok' (2008) 2 columbia journal of east european law 56] most articles results could be excluded by title. they were excluded if it was clear that they didn’t fit into the european criteria and were research produced from outside this continent. a total of 44,171 articles were excluded due to title. next, articles were excluded if it was clear they were to do with medical education and not legal education. for some databases the majority of articles produced were for medicine and not law. it was very easy to identify which articles were medical and would be excluded by title instantly. · abstract occasionally it was necessary to read an article’s abstract in order to determine whether it should be included in the systematic review. abstracts read had to illustrate that the article was research conducted within europe and relating to cle. this was normally fairly easy to identify. if it was not, then the contents page or introduction were read to determine inclusion. this did not, however, occur very often and it was not deemed necessary to make a record of how many articles were included from contents page, etc. they were included under the abstract criteria heading. altogether 120 articles were excluded by abstract. the reasons for exclusion by abstract varied. the majority (approximately 100 articles) of abstracts excluded were due to the research not having been conducted in europe. often, searches would produce articles that mentioned a country in the footnotes or briefly within the main body. these articles obviously would not answer my research question and were not relevant to the systematic review. articles were also excluded if the abstract did not mention cle at all, meaning that the research didn’t concern this kind of education, but legal education more generally. · articles that had to be excluded some articles had to be excluded for various reasons. if the article’s full text was not available or not subscribed to then it was excluded. if there was no possibility of gaining the full text then it could not be included in the later stages of the systematic review, the synthesis. a total of 29 articles were excluded for unavailability. a small amount of articles were excluded as they were written in a language other than english. there was no means available to translate these articles at the time of the search. there were only 2 articles excluded due to language. lastly, there were articles excluded as duplicates. these were articles that had already been included to be read in full text and thus were not needed again. the articles excluded during a search were those that were relevant to the country searched. there were a great number of articles produced for medicine and health, and they were not recorded again as duplicates as they were not relevant to my search. only those to be read in full text were excluded as a duplicate. a total of 34 articles were excluded as a duplicate. · full text only 3 articles were excluded after reading full text. these reasons were as follows: · one article was not research in spain. it was actually research from a us university that had the same name as a spanish city. once realised this was not european research it was excluded. · one article was excluded from germany. when reading this article it came to light that it was only about legal education in germany and did not mention clinical legal education at all. as it did not mention any clinics, and other articles provided a comprehensive background to legal education in germany, i felt it was not necessary to include this article in the final results. · an article was excluded after it was realised that it did not really concern cle, but rather developing an educational system for preparing students for international practice. this was not relevant to this systematic review and was excluded accordingly. as can be seen, there were not many articles excluded during the full text stage of the review. i believe this is because my screening worked so well, and articles that would fit the criteria were chosen carefully. recording the articles once i had identified articles i wanted to read in full text, i recorded them on a table in a word document. i recorded the author, date of publication, title, citation and which country the research concerned. recording the articles in this way made it easier to find them again at a later date, and also to check any potential duplicates from my searches. an example of the final result looked like this: slyvester, c. and hall, j. and hall, e. 2004 problem-based learning and clinical legal education: what can clinical educators learn from pbl international journal of clinical legal education, vol. 4, pp 39-63 int’l j. clinical legal educ. 39 (2004) uk i found that this was the most efficient way of recording the articles. once i had completed my tables i transferred them to excel. this meant i could filter articles depending on date or country, for ease of analysis. i only recorded the information of articles i chose to read in full text. articles that were excluded prior to this were not recorded in more than a numerical figure, as it would have not served me any purpose. findings the records i identified before screening, for all searches conducted, are as follows: · heinonline: 23,147 · lexisnexis: 71 · lawtell: 3 · westlaw: 1095 · sage: 20,083 · ssrn: 24 i would like to highlight some preliminary observations of the actual records produced rather than the content. as i was searching for certain countries which i knew had already published research, i expected to find more articles than i actually did. this was especially for poland, croatia and ireland. i was not surprised by the results for the uk, as i knew this country would lead the amount of research available to me. the results for germany were surprising as this is a country which has taken longer than others to engage with cle.[footnoteref:21] [21: tomoszek m, 'the growth of legal clinics in europe faith and hope, or evidence and hard work?' (2014) 21 international journal of clinical legal education 93 – this paper highlights, particularly at p.99, how germany has ‘resisted’ the cle trend, favouring the more conventional approach to legal education. ] however, i realised that some countries had not produced any research outlets themselves in my results, but rather it was mainly us academics writing about their experiences of cle in these countries. this is especially the instance for germany and russia. some countries were mixed and some produced all their own research, mixing it comparatively with other countries. this is shown in figures 3 and 4 below, which compares domestic to non domestic articles produced per year. i think i was expecting to find more articles than i actually did in the final result. however, it can’t be forgotten that there were many articles excluded as they weren’t available to me. had they been, the results would have been different, particularly for the uk. below is a prisma flow diagram[footnoteref:22], showing the different stages of my systematic review and the inclusion/exclusion numbers. i have already dissected above how many articles were excluded for various reasons and why, and it is not necessary to repeat them here. [22: the findings included in this prisma do not include the records for the additional ‘sweeping searches’. there were no records used, as shown in the table in appendix 1. ] identification screening eligibility included records identified through database searching (n = 44,423) full-text articles excluded, with reasons (n = 3) studies included in qualitative synthesis (n = 71) full-text articles assessed for eligibility (n = 74) records excluded (n = 44,285) records screened (n = 44,359 ) records after duplicates/non-english/non-availability removed (n = 65) studies included in the research for phd (n =71 ) figure 1 – prisma flow diagram showing the stages of the systematic review synthesising the quantitative elements of the literature this table shows the search results for each country and the general europe searches. the figures shown is the total amount of articles for each country across the six databases used. country searched articles produced articles excluded by title articles excluded by abstract articles that had to be excluded articles excluded from full text articles included in research paper for phd croatia 453 445 4 2 0 2 czech 719 700 11 3 0 5 france 5,906 5,894 10 1 0 1 germany 6,459 6,442 11 0 1 5 ireland 3,370 3,349 16 0 0 5 poland 1,582 1,561 9 4 0 8 russia 2,120 2,107 6 4 0 3 uk 11,500 11,387 36 43 0 34 northern europe 2,520 2,517 3 0 0 0 europe generally 9,794 9,769 14 7 1 3 other articles found during searches, not relevant to country searched and did not appear in the general europe search 1 2 5 total articles included 71 figure 2 – table displaying the search results per country or region i then decided to put the amount of articles from each country on a map: figure 3 – map showing how many articles sourced from each country this helped me to locate where the research had been conducted and which countries had not produced any research from my searches. a systematic review, when completed, gives you a number of articles. it does not present the articles in a way which is easy to look at and dissect where they originate from. as i am not familiar with working with numbers, i felt it necessary to display my results in other ways. a visual aid really helped me to locate which countries had been producing more research than others, if any. it also helped when i was presenting this work for attendees to the encle workshop to see the results in this format, rather than just looking at multiple tables. this map shows a geographical cluster of publication activity, which is not apparent when looking at the results in a table or list format. this map does not, however, show which countries have clinical activity. the fact that i did not find any peer-reviewed articles for certain countries does not mean that they are not engaging with cle. i know that many european institutions do incorporate some form of cle into their law programmes, but that is not apparent from this systematic review. it also does not mean that they are not conducting research. it only displays which countries have published peer-reviewed articles, and how many papers for each. furthermore, this map only shows which countries have produced research or had research conducted in them by domestic or non-domestic authors as a total. it does not distinguish between them. thus, i was also interested in how many articles had been produced by non-domestic academics compared to domestically produced articles. with my final amount of articles, this is how it looked: figure 4 – graph showing the amount of papers published by non-domestic authors from this graph it can be seen that the earlier papers published, there is quite a small difference between the articles published and publications by non-domestic authors. as we get to more recent times, 2008 onwards, there seems to be a big difference between the papers published and publications by non-domestic authors. these graphs, in a way, are in line with my hypothesis. i knew that there wasn’t much peer-reviewed research published within europe, which focused on cle. this is for various reasons. the main reason is that cle was not widely engaged with throughout continental europe until the 1990’s.[footnoteref:23] this boom of cle started when organisations, such as the aba or ceeli[footnoteref:24], worked with european universities to help them incorporate cle into their legal education. as a result, it is not surprising to see on this graph that the first papers published on european cle are from non-domestic authors. in some years, such as 1999, there were no papers published by domestic academics in european clinics. non-domestic authors, especially those from america, would write of their experience helping to set up clinics in europe and the difficulties they faced. as these clinics become more established we begin to see a rise in the amount of papers published by domestic authors. [23: bloch fs, the global clinical movement: educating lawyers for social justice (oxford university press 2010), chapter 4.] [24: american bar association (aba) and central and easter european law initiative (ceeli). ] however, due to the limitations of my systematic review, discussed below, there does seem to be very valid reasons for domestic authors not publishing as much peer-reviewed cle research, especially in the earlier years. i think these results can also be represented on a graph, comparing papers published by domestic to non-domestic authors, rather than total papers published compared to non-domestic. representing the results in this way appears like this: figure 5 – graph displaying the difference in numbers of papers published by domestic and non-domestic authors looking at this graph i can conclude that in some years, especially in the earlier years, there were more papers published by non-domestic authors than there were domestic. whilst this graph is similar to the one above, and the same conclusions can be drawn, seeing it presented visually different on this graph displays the occasional contrasts. i found these differences a particularly interesting aspect of the results, prompting me to draw conclusions as to why. this will be discussed further in the next section, whereby the analysis of the content of the papers can attempt to form a theory to explain this difference. synthesising the quantitative elements of the literature synthesising the qualitative literature can be done in a variety of ways, and there have been as many as 12 approaches to qualitative synthesis.[footnoteref:25] i did not want to go into a large amount of depth of the papers sourced. i wanted to show more broadly what is being published by, and within, european institutions, highlighting areas which could benefit from further research. thus, a kind of narrative approach was adopted, to ‘describe the scope of existing research.’[footnoteref:26] [25: booth a, papaioannou d and sutton a, systematic approaches to a successful literature review (sage 2012), p.127] [26: ibid., p. 147] there was not a great variety of papers sourced through this systematic review. the kinds of papers found are displayed in the table below: kind of paper found number of papers countries of origin papers explaining the establishment and running of a clinic 28 poland (5) ireland (3) croatia (2) czech (2) norway (1) netherlands (1) serbia (1) romania (2) uk (11) papers explaining generally legal education and cle 21 poland (2) germany (4) ireland (2) italy (1) czech (2) russia (3) netherlands (1) france (1) eu (1) uk (4) papers discussing ethics, values and access to justice in cle 6 uk (6) papers exploring skills and the benefits of cle 5 poland (1) germany (1) czech (1) uk (2) papers discussing the integration of cle into the curriculum 3 uk (3) papers focusing on theory and practice 3 uk (3) papers focused on reflection 2 uk (2) papers focused on assessment 2 uk (2) papers focused around the clinician 1 uk (1) figure 6 – table showing which kinds of papers were being published? by studying this table, we can see where the trends in publications are. it is very common for those working in clinics to write about establishing a clinic and how to run one. however, it was found that these papers were mostly not followed up afterwards, with no papers explaining the development of the clinic or the setbacks. whilst these papers can be very useful and enlightening to others working in and wanting to establish a clinic, it is also important to discuss if a clinic has failed or any setbacks and difficulties that have been faced. by sharing this information we allow others to learn from our own experiences and to help build collaborations or forums for advice. clinical legal education, and legal education generally, was also found to be discussed widely in the literature. what are the downfalls of legal education, how can clinic help to fill this gap? these were questions widely addressed in these papers. these are very valuable questions, but ones which have been discussed to a great extent already. this is demonstrated more, the further down we move in the table. papers discussing specific areas of cle, such as assessment and integration, become more scarce. furthermore, these papers mostly come from the uk. as highlighted above, it is necessary for us to be sharing experiences. it may have been that i could not find papers relating to these areas from other european countries, or they may have been in another language. however, i feel it important to emphasise, again, the necessity of us sharing research and experience. perhaps it is time for us to move away from the general discussion of cle and focusing on the specifics. limitations of my systematic review from the encle workshop i learnt that there were some gaps in my research and i had not gathered all of the research that was available within europe. this was for many reasons. research may have been published on databases which i did not have access to or which were not in english. furthermore, i realised that my first attempt at a systematic review, whilst helping to develop my research skills, was not as sophisticated as my later attempts. the naivety which i held during the process highlights a need for reflection and to avoid others making the same mistakes. when i presented my initial findings i faced much opposition, perhaps even hostility, to my results. participants at the workshop made me aware that they were producing work, and just because i did not come across it in my review did not mean that some countries were not producing anything. there were participants who stated they did write about their clinics, but it was not published in peer-reviewed articles, but rather in blogs, on websites, in university brochures and other unconventional-publishing outlets. it is becoming increasingly popular in this new age of technology to write in places where one may not have traditionally done so. with this mass of grey literature out there i knew i had upset some participants, somewhat accusing them of not conducting research. i was rather taken aback by this. i had not intended to upset anyone or, essentially, call academics from certain countries lazy! i just wondered where their research was and if they were engaging with research at all. they made me aware that there were reasons why they did not write in peer-reviewed journals. this could be because they did not get support from their institutions to write articles or to conduct research. research can be a time-consuming process, and unless you are allocated time to do it, it is very hard to complete. some participants did not know how to carry out research appropriate for peer-reviewing, and it was not an important role of their job or even during their university studies. if this presentation highlighted anything for encle, it was that we need to provide support to clinicians in europe to research and share it in conventional outlets, in order for us to move forward in our clinical movement. with europe being slower than other regions on the development[footnoteref:27] of cle, it is important that we can help facilitate any needs now, to ensure the movement continues to grow. when i say slower, i mean that, for example, the us widely engage with cle, and it is incorporated in every law school.[footnoteref:28] their research into cle is immense, establishing the us as one of the leaders of cle. does this mean that the growth of cle in developed at a higher rate in the us than it has within europe? that is a question which will not be answered in this paper; one that needs further research. but from this systematic review results, it would seems that europe is slower or behind in the incorporation of cle to their legal programmes, or at least writing about it in peer-reviewed articles. not only that, from looking at the graphs above (figures 4 and 5), it is important that countries are writing about their own clinical experiences, instead of relying on non-domestic academics to be accurate and fully understand the complexities of another’s legal and political systems. [27: the first clinical boom in europe started in the 1990’s, compared to places like the u.s. their boom starting in the 1960’s bloch fs, the global clinical movement: educating lawyers for social justice (oxford university press 2010)] [28: https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/clinical-legal-education/ cited 02/07/15] thus, this raises an issue: when do we expect institutions to produce research about their clinics? does a clinic have to go through adolescence before we can research it? or is it preferred to publish research regarding the earlier stages of the clinic? again, these are not questions to be answered in this paper and go beyond the scope of this systematic review. however, it is a consideration when contemplating what and when to publish. a clinic can face many issues when developing a model and attempting to sustain it. the sustainability depends on many factors,[footnoteref:29] and some institution’s clinics will fail due to these factors, or a lack thereof. at northumbria, for example, our sustainability is strong. as cle is such an integral part of our curriculum, it cannot fail. if the clinic were to fail, the whole degree programme would have to undergo a redesign. other institutions do not have this security. should we be sharing our failures more readily, in order to inform other institutions of the difficulties of sustaining clinics and how to avoid them? or is our research more concerned with an established clinic and what makes it a success? these questions will be explored, to an extent, when looking at the papers produced from this systematic review. [29: mkwebu t, 'a systematic review of literature on clinical legal education: a tool for researchers in responding to an explosion of clinical scholarship' (2015) 22 international journal of clinical legal education 238 ] revisiting the research question, whilst i found all of the peer-reviewed articles available to me, the encle workshop highlighted that i cannot boldly state that i found all of the research from europe, as i have not. i have found all of the research available to me through the databases i searched, in my native language. i was informed that there are publications from countries such as belarus, which i did not find. with the knowledge now that there are publications i did not unearth, i would conclude that my research question has not been fully met. if my research question had been ‘what peer-reviewed research has been published in europe, available to me, regarding clinical legal education and what is missing?’ then my results would have been sufficient. it is becoming increasingly more common to include non-published research in a literature review, thus changing the function of a traditional systematic review slightly. petticrew and roberts state in their book that: ‘while we also use the phrase systematic ‘‘literature’’ reviews, not all evidence which may be useful for a review will of course appear in the published ‘‘literature.’’ because of this, the term ‘‘research synthesis’’ (or ‘‘evidence synthesis’’) is becoming increasingly common.’[footnoteref:30] [30: petticrew m and roberts h, systematic reviews in the social sciences a practical guide (2006), p. xiv] it is now highlighted by academics that not only peer-reviewed and/or published research can be used in a systematic review. it is now common, and accepted, that other evidence useful to systematic review research questions can now be included, changing the procedure slightly. with this in mind, for this particular research question it may be more appropriate to move slightly away from a traditional systematic review and more towards a ‘research synthesis’ design. this can result in collecting a broader range of research to add reliability to my results, whilst also ensuring the work that researchers produce in other forums is not forgotten or overlooked as valid research. even with the limitations i faced during my systematic review, i still believe it was the most appropriate methodology to use, as opposed to a narrative review. i mostly answered my research question, and more sufficiently than it would have been had i done a narrative review. whilst i acknowledge the benefits of a narrative review, i can draw strong conclusions that it would not have benefited this research. the main benefit i would have gained from the traditional narrative review, compared to that of a systematic review, would have been a wider engagement with the grey literature. grey literature is now used more widely in research, and a systematic review can overlook these useful sources of information. a disadvantage to the lack of use of the grey literature is that too much reliance is placed on peer-reviewed research, and that other sources of research do not have the same quality. jeeson et al challenge this, stating ‘the downside of a peer review is that being judged by experts who have established perspectives and paradigms can act as a barrier to publishing new and unconventional ideas.’[footnoteref:31] this can create what they call a ‘publication bias,’ and using grey literature may help to reduce this bias. however, there is a challenge faced by those conducting systematic reviews, and how exactly they can adopt a method which will be successful to find grey literature. as most electronic databases do not pick up the grey literature, you could be excluding ‘valuable information’[footnoteref:32] which may be of benefit to the research. [31: jesson j, matheson l and lacey fm, doing your literature review: traditional and systematic techniques (sage 2011) p. 20] [32: jesson j, matheson l and lacey fm, doing your literature review: traditional and systematic techniques (sage 2011) p. 126] now with the knowledge that there are other publications out there, and a mass of grey literature, i have the means to move forward with this systematic review and look at more unconventional research outlets. since this work was undertaken i have completed a further systematic review, which forms part of my phd thesis. i found that that systematic review was much more advanced than this. for example, the duplicates recorded in this systematic review were only duplicates which of the full text articles already selected to be read. in my phd systematic review duplicates were recorded as any article which had already appeared in my search results. this way i could assess more easily when my searches were becoming saturated, and it gave a more realistic account articles appearing. i hope this work provides guidance for others wishing to undertake similar research and that any hindsight i may have had will inform others. conclusions whilst there have been some limitations to this study, some conclusions may still be drawn from the methodological results, as well as the review of the literary content of the paper. from the results it can be seen that continental europe is producing more research now, than it previously did. it can also be concluded that there is now more domestic authors publishing research compared to non-domestic. whilst the limitations discussed above may cause difficulties, i believe that this systematic review has drawn some successful findings as a foundation to help move cle forward within europe, highlighting the need for more research in accessible research outlets. furthermore, whilst the cochrane collaborative provided a great foundation for this kind of literature review, the developments in recent studies are welcomed as a way of creating a more modernised form of systematic reviews. we must not forget the unconventional methods of publishing, nor how valuable qualitative data can be in this method. appendix 1 results of the sweeping searches: sweeping searches 14/04/15 database: westlaw           search term articles produced articles included articles excluded by title articles that had to be excluded, e.g. due to language. articles excluded by abstract articles excluded after reading full text law clinics and europe 108 0 107 1(duplicate) 0 0 legal education and europe 48 0 47 0 1 0             total articles used: 0               sweeping searches 14/04/15 database: lexisnexis                         search term articles produced articles included articles excluded by title articles that had to be excluded, e.g. due to language. articles excluded by abstract articles excluded after reading full text law clinics and europe 11 0 11 0 0 0 legal education and europe 363 0 362 0 1 0             total articles used: 0 papers published 1973 1980 1993 1996 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 1 1 1 1 2 1 3 4 2 2 3 6 5 1 8 3 5 4 4 9 5 by non-domestic authors 1973 1980 1993 1996 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 1 1 1 0 0 1 1 2 1 0 0 0 3 0 2 0 1 0 0 0 0 papers published by domestic authors 1973 1980 1993 1996 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 0 0 0 1 2 0 2 2 1 2 3 6 2 1 7 3 4 4 2 9 5 papers publishedby non-domestic authors 1973 1980 1993 1996 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 1 1 1 0 0 1 1 2 1 0 0 0 3 0 2 0 1 0 1 0 0 82 poland 8germany5 croatia 2 uk34russia 3 ireland5 czech5france1 nl2 italy1romania 2 serbia1 europe generally1 norway1 total of articles produced: 71 /docprops/thumbnail.jpeg slide 6 poland 8 germany 5 croatia 2 uk 34 russia 3 ireland 5 czech 5 france 1 nl 2 italy 1 romania 2 serbia 1 europe generally 1 norway 1 total of articles produced: 71 220545d_jcle_july 2007 comp foreword report back from the july 2007 ijcle conference in johannesburg: report-backs from conferences can be exasperating to read. if you were there, you can sometimes wonder if you were attending the same conference as the author – and if you weren’t there, you often regret the omission. certainly the latter is likely to be true in this case, as there seemed to be agreement among all the delegates that this summer’s ijcle conference in south africa was hugely successful – and equally valuable. it was a superbly organised conference – and i can say that because so much of the credit for that organisation lay with our partners in the south african clinical movement, and with the support of aulai, in making all the conference arrangements in the splendid facilities at witwatersrand. running a conference long-distance is always a daunting task – and the 2005 ijcle conference at monash set very high standards; but the work put in by all the team in south africa ensured that the johannesburg conference was a very special experience. i have to pass on my particular thanks to shaheeda mahomed and danny wimpy alex for their enormous hard work and support. what was it – apart from the organisation – that made the conference so successful? first, it was a conference where there was a good balance between representation of the host country, and input from a huge range of clinical jurisdictions. we not only had a series of papers that illustrated the particular challenges and developments within the south african context – but also a considerable variety of papers from the united states, the uk, china, india, australia, uzbekistan and a host of other jurisdictions. there was a huge benefit in being able to move from narrowly focussed papers about particular aspects of clinical teaching, to more wide-ranging questions about shared clinical values and approaches. as ever the conference was characterised by the enormous generosity of the delegates in sharing experiences and providing support for one another’s programmes. i am not surprised at the enormously positive feedback i have received in the months following the conference – and it sets a challengingly high standard for future conferences. speaking of which … the 2008 international journal of clinical legal education conference this will take place on monday 14th and tuesday 15th july 2008 in at university college, cork in the republic of ireland. initial details are up on the journal website – www.ijcle.com – and the conference organiser, maureen cooke, can be contacted at: maureen.cooke@northumbria.ac.uk the theme of the conference is “lighting the fire”, drawing on the quotation from w b yeats that “education is not the filling of a pail, but the lighting of a fire.” papers are welcome on all aspects of clinical legal education – and a call for papers has gone out. foreword 5 in this edition this edition of the journal brings together four articles, which address different aspects of clinical practice. in the first of the articles, kevin kerrigan, a reader at northumbria university in the uk, and founder of the criminal appeal clinic within northumbria’s student law office programme, looks at the issue of the teaching of ethics within clinical programmes. anyone who follows clinical scholarship will be aware of the continuing focus on the role of clinic in inculcating ethical awareness and values in clinical students. kerrigan’s article makes reference to much of that scholarship, but has at its heart a fascinating survey of uk clinicians, asking them to comment on different aspects of the mode and the function of ethical teaching in clinics. kerrigan places this within the context of fast-changing structures for the vocational stage of english legal education, while identifying different typologies for ethics dialogues that may be being utilised by clinicians. margaret barry’s article looks at the way in which clinical practices are developing within the indian law schools. india represents such a distinctive legal jurisdiction that it is unsurprising that clinical learning has developed in a similarly distinctive fashion. in her article, however, barry identifies the way in which, although clinic has had high level endorsements, and clearly has an huge potential for helping to meet unmet needs for justice, there has been at best “modest” progress. valuably barry draws on the recent assessments of the need for educational reform within the u.s. contained in both the carnegie foundation report and in the best practices project published by clea, and edited by roy stuckey. the paper is thus able not only to assess the indian experience in its own terms, but to bring to bear a wider evaluation of the current achievements and the future challenges. in a very different context, anna cody and sue green look at two different aspects of clinical legal education in relation to education for indigenous students in australia. although the particular context is clearly unique to australia, readers will no doubt recognise many of the issues that arose for the authors. students who found themselves initially isolated, disorientated, and in danger of dropping out, who then find through clinical learning the really valuable education which they were looking for. it is interesting to see clinic used as part of a deliberate policy of “enrichment” of the curriculum in even the earliest stages of the courses, in order to help support student learning by engaging students with the curriculum. the paper continues by looking at the way in which non-indigenous students in the later stages of the curriculum can be given an understanding of the reality of the indigenous experience, and the implications for their own future work as practitioners. finally, i am delighted to include in the clinical practice section an article from ada ordor which looks at the whole experience of the nigerian law school, and the particular implications for the development of clinical programmes which fit with the needs of the nigerian teaching system. the article outlines the range of different teaching activities that are brought to bear within the nigerian law school, but also at the way in which clinical activities could be used to add greater value – and the ways in which this can be achieved. philip plowden editor 6 journal of clinical legal education july 2007 practice report: clinic the university and society a case study approach: legal outreach clinics at northumbria university lyndsey bengtsson and ana kate speed, northumbria university, uk introduction over the last decade there have been significant threats to access to justice, including the reduction in the availability of legal aid implemented by the legal aid sentencing and punishment of offenders act 2012[footnoteref:1] and cuts to charitable organisations and law clinics which have resulted in a reduction or loss of legal services[footnoteref:2]. these measures have impacted disproportionately on people living in disadvantaged and minority communities both because they are likely to be unable to afford to pay for legal advice and representation when they require it and because they are more likely to face legal problems in those areas which have now been removed from the scope of public funding, such as welfare benefits, debt and immigration[footnoteref:3]. structural barriers aside, there is evidence that people who are disadvantaged by reason of financial hardship, unresolved mental health difficulties or immigration status may also be less aware of their legal rights and how to secure the assistance they need[footnoteref:4]. in addition, they may be less likely to seek advice because of a distrust of legal advisers or intimidation by the legal process[footnoteref:5]. [1: in 2010 the government announced that it would implement a series of reforms to the legal aid regime. the reforms included removing large areas of law from the scope of legal aid; tightening the financial eligibility criteria; cutting fees paid to providers by 10%; and providing more legal advice over the telephone. financially, the reforms aimed to reduce the legal aid budget by 23%. this equated to cuts of £350 million in 2013 and annual cuts of approximately £268 million until 2018. the reforms were implemented through the legal aid, sentencing and punishment of offenders act 2012 (laspo) which can be accessed at: http://www.legislation.gov.uk/ukpga/2012/10/contents/enacted. ] [2: see, for example, siddiqui, h (2018) ‘counting the cost: bme women and gender-based violence in the uk’ ippr progressive review. ] [3: the council of europe commissioner for human rights has stated that “vulnerable and marginalised groups of people have been hit disproportionately hard, compounding pre-existing patterns of discrimination in the political, economic and social spheres”. this has been reported in “safeguarding human rights in times of economic crisis”, november 2013; report of the special rapporteur on extreme poverty and human rights, 9 august 2012, un doc a/67/278. ] [4: amnesty international (2016) ‘cuts that hurt: the impact of legal aid cuts in england and wales on access to justice’. london: amnesty international. retrieved from: https://www.amnesty.org/en/documents/eur45/4936/2016/en/.] [5: see, for example, siddiqui, h (2018) ‘counting the cost: bme women and gender-based violence in the uk’ ippr progressive review; legal services commission (2009) ‘report on black, asian and minority ethnic (bame) women, domestic abuse and access to legal aid’; schetzer, l, mullins, j and buonamano, r (2002) ‘access to justice and legal needs: a project to identify legal needs, pathways and barriers for disadvantaged people in new south wales’ background paper – available at http://www.lawfoundation.net.au/ljf/site/articleids/012e910236879baeca257060007d13e0/$file/bkgr1.pdf and forell, s and gray, a (2009) ‘outreach legal services to people with complex needs: what works?’ law and justice foundation justice issues paper 12.] clinical legal education (cle) has often been called on to ‘fill the gap’ created by the above measures[footnoteref:6]. whilst this is not plausible due to the sheer volume of cases, the complexity and urgency of many legal disputes, and the demands that this places both on students, clinical supervisors and the institutions which fund them, it is recognised that law school clinics nonetheless play a valuable role in promoting access to justice for the communities they serve. this is evidenced by the fact that 40% of the 225 clinics within the lawworks clinics network in england and wales were operated by law schools[footnoteref:7]. together, they dealt with 32% (over 18,000) of enquiries between april 2016 and march 2017[footnoteref:8]. in addition to the provision of advice, law school clinics also account for 50% of clients receiving general information, signposting and referrals[footnoteref:9]. in the north-east of england, where the authors are based, there are 8 clinics within the lawworks clinics network. between april 2016 and march 2017, they dealt with 1,295 enquiries: 544 of these enquiries were on an ‘advice’ basis, whereas 588 related to general information, signposting and referrals[footnoteref:10]. [6: see campbell, e (2014) ‘pro bono is great education for law students but they shouldn’t fill the gap left by legal aid cuts’ published in the conversation – available at https://theconversation.com/pro-bono-is-great-education-for-law-students-but-they-shouldnt-fill-gap-left-by-legal-aid-cuts-34323. ] [7: lawworks clinics network report april 2016-2017: analysis of pro bono legal advice work being done across the lawworks clinics network between april 2016 and march 2017 – accessed at https://www.lawworks.org.uk/sites/default/files/lawworks%20clinics%20report%202016-17.pdf (last accessed on 26 september 2018).] [8: ibid.] [9: ibid.] [10: ibid.] the emphasis on promoting access to justice is reflected in the educational aims of cle. this has been summarised by wizner as follows: “what do students learn from representing clients in the law school clinic that they would not learn from their regular academic courses? first, they learn that many social problems, like poverty, can be seen and acted upon as legal problems. second, they learn that legal representation is as necessary to the resolution of complex legal problems of the poor as it is to those of the affluent. third, they learn to develop and apply legal theory through the actual representation of clients. fourth, they learn to use the legal system to seek social change. and finally, they learn the limits of law in solving individual and social problems… these are all important intellectual and ethical lessons for law students to learn[footnoteref:11]”. [11: wizner, s (2002) ‘the law school clinic: legal education in the interests of justice’ fordham law review volume 70 issue 5 article 29. ] cle is therefore socio-legal in its pedagogical approach as it “invites students to see the wider context and everyday realities of accessing an imperfect legal system, enabling them to integrate their learning of substantive law with the justice implications of its practical operation”[footnoteref:12]. social justice aside, the broader value of student participation in cle is well-documented and includes community engagement,[footnoteref:13] general skills improvement and preparation for the workplace[footnoteref:14]. [12: evans, a. cody, a. copeland, a. jeff, g. joy, p. noone, m and rice, s (2017) australian clinical legal education: models and definitions in australian clinical legal education published by anu press. p.41.] [13: russell, j (2013) ‘running drop-in advice services in a university setting’ international journal of clinical legal education volume 19. ] [14: cantatore, f (2018) ‘the impact of pro bono law clinics on employability and work readiness in law students’ international journal of clinical legal education, vol 25, no 1.] through a case study approach, this paper discusses two projects which have been established by clinical supervisors at northumbria university to support access to justice and promote the development of students’ professional skills and identities through cle within disadvantaged or minority communities in the north east of england. the projects adopt the model of ‘legal outreach services’ because they operate within distinct communities to provide advice to target groups[footnoteref:15]. the paper will first discuss the different models of cle; simulation, drop in clinics, letters of advice and full representation. the second part of the paper will go on to discuss legal outreach models and set out the key features of the legal outreach approach. the third part of the article will set out the considerations underpinning the two outreach projects operated by northumbria law school: legal advice byker (lab) and empower 4 justice (e4j). the fourth part of the paper will set out in detail the operation of lab and e4j. the final part of the article will discuss the benefits and limitations of this approach to cle from a student and community perspective. [15: forell, s and gray, a (2009) ‘outreach legal services to people with complex needs: what works?’ law and justice foundation justice issues paper 12. ] models of clinical legal education the term cle has different meanings to academics, legal professionals and students[footnoteref:16]. this is largely because there is no generally accepted definition of cle[footnoteref:17]. it is, however, widely recognised that cle is an increasingly prevalent feature of legal education in england[footnoteref:18]. cle fits within the wider pedagogical remit of experiential learning, in which students seek to develop their professional skills through exposure to ‘real’ experiences[footnoteref:19]. however, there are many different approaches and models which can be encompassed within cle, each with differing financial and staffing resource requirements, forms of supervision and levels of advice provided to the client. this reflects the fact that clinics have varying staff and student numbers and institutional support[footnoteref:20]. in addition, institutions’ decisions about which model of cle to adopt may depend on their view as to whether its main aim is the education of students or the advancement of social justice (or indeed both). the main clinical models are identified further below: [16: evans, a. cody, a. copeland, a. jeff, g. joy, p. noone, m and rice, s (2017) australian clinical legal education: models and definitions in australian clinical legal education published by anu press.] [17: ibid.] [18: see, for example, bleasdale-hill, l and wragg, p (2013) ‘models of clinic and their values to students, universities and the community in the post-2012 fees era. international journal of clinical legal education issue 19, pp. 257-270. ] [19: evans, a. cody, a. copeland, a. jeff, g. joy, p. noone, m and rice, s (2017) australian clinical legal education: models and definitions in australian clinical legal education published by anu press, p. 41.] [20: kemp, v. munk, t and gower, s (2016) clinical legal education and experiential learning: looking to the future. university of manchester. accessed at: http://eprints.nottingham.ac.uk/40920/1/final%20report%2022.09.2016..pdf. ] (a) simulation institutions may offer their students simulated client experiences in which they advise hired actors in relation to mock problem-based learning scenarios or conduct mock hearings[footnoteref:21]. this simple model of cle can be integrated within existing modules and does not require qualified practitioners or significant financial resourcing, although some costs may be incurred if the actors are acting in a professional capacity and seek payment. however, this model also lacks community benefit, does not expose students to real people with complex needs and is likely to do little to instil a social justice ethic into students which they may take forward into a future career. [21: see milstein, e (2001) ‘clinical legal education in the united states: in-house clinics, externships and simulations’ 51 j legal educ. 375.] (b) drop in clinics russell identifies that the drop-in model is characterised by clients being provided with on-the-spot one-off generalist information, advice or signposting by students who interview and assess clients and research the enquiry while the client waits[footnoteref:22]. unlike the ‘letters of advice’ model (outlined below), no prior filtering or triage takes place before the appointment. this means that students are “presented with people who do not necessarily have a readily identifiable legal problem and learn to assist clients in translating their concerns into legally recognisable categories”[footnoteref:23]. kemp et al note that drop-in clinics are a relatively recent trend in cle[footnoteref:24]. they prioritise community engagement over educational development and endeavour to address the unmet legal need which has arisen following the series of threats to access to justice. as such, drop in clinics typically operate in areas which have seen significant legal aid cuts such as family, housing, immigration and welfare law. [22: russell, j (2013) ‘running drop-in advice services in a university setting’ international journal of clinical legal education volume 19.] [23: ibid.] [24: kemp, v. munk, t and gower, s (2016) clinical legal education and experiential learning: looking to the future. university of manchester. accessed at: http://eprints.nottingham.ac.uk/40920/1/final%20report%2022.09.2016..pdf.] the key benefits of drop-in clinics are that they expose students to people from all walks of life, including disadvantaged and vulnerable communities. russell notes that students who participate in drop-in clinics develop their interviewing skills, practical legal knowledge and understanding of client care[footnoteref:25]. however, drop-in clinics inevitably have limitations. for example, instead of students conducting detailed legal research to identify a solution to a clients’ enquiry, they may instead search for pre-formulated advice on an existing practitioner website such as citizens advice’s ‘advisernet’[footnoteref:26]. alternatively, they may simply just provide the client with an information leaflet[footnoteref:27]. in turn, this means that the level of advice provided to clients can be very basic. cases with any complexity are unlikely to be appropriate for advice without significant supervisor input because the student does not have sufficient time to get to grips with the issue. in turn, this reduces the students’ engagement with the case and their role may be reduced to note taking. as no advice is provided in writing, the students do not develop their legal writing or drafting skills and clients do not receive a comprehensive document containing the advice which they can refer to at a later date. further, strict drop in models can have practical difficulties. without pre-arranged appointments, it is difficult to predict the number of clients who will attend the clinic and therefore the amount of student volunteers and supervising solicitors in the requisite practice area needed to service the clients. [25: russell, j (2013) ‘running drop-in advice services in a university setting’ international journal of clinical legal education volume 19.] [26: advisernet is an online resource tool for advisers and volunteers at citizens advice which covers areas such as welfare law, employment, benefits, housing and debt. the website can be accessed by subscription at: https://www.citizensadvice.org.uk/.] [27: russell, j (2013) ‘running drop-in advice services in a university setting’ international journal of clinical legal education volume 19.] (c) letters of advice russell describes the letters of advice model as characterised by clients receiving a one-off letter of advice (but no face-to-face advice) after a lengthy process in which the enquiry is filtered by an administration team and supervising solicitor, an information gathering interview has taken place (at which no advice is provided), and students have spent a period of time conducting research[footnoteref:28]. this scenario seems to balance the needs of clients with the educational needs of students. clients are provided with tailored and comprehensive legal advice in relation to their enquiry, however the trade-off is the inevitable delay it takes students to complete the necessary stages (i.e. fact-finding interview, research, preparing the letter of advice). [28: ibid.] (d) full representation clinic some clinics more closely resemble a full-service law firm in which students do not only provide advice but also represent clients in court and tribunal proceedings. bleasdale-hill et al note that this can include students being supervised by external practitioners who assume ultimate responsibility for the quality of the advice; advice provided under the practicing certificate of a qualified pro bono director; or by students under the supervision of qualified academic members of staff[footnoteref:29]. [29: bleasdale-hill, l and wragg, p (2013) ‘models of clinic and their values to students, universities and the community in the post-2012 fees era. international journal of clinical legal education issue 19, pp. 257-270.] an example of a full-representation model is the slo at northumbria university. all students enrolled on the four-year m law exempting law degree (a programme which combines the undergraduate law degree with the requirements of the legal practice course (lpc) or bar practitioner training course (bptc)) undertake a year-long assessed clinical module in the slo in their final year. this option is also available to students on the lpc and bptc as an elective module in the second semester. students provide pro bono advice and potentially representation to members of the public under the supervision of qualified solicitors, barristers or caseworkers. around 200 students work in the clinic each academic year[footnoteref:30]. students specialise in their supervisor’s area of expertise, such as civil litigation, crime, welfare benefits, housing law, employment and family law. inevitably, this is a more labour-intensive model of cle both for staff and students but in principle this model has the potential for great rewards in terms of client satisfaction, community engagement and student development. [30: information about the student law office can be accessed at: https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/ .] law school clinics can also be categorised as ‘individual’, ‘specialist’ or ‘community based’[footnoteref:31]. the individual service model concentrates on the students’ ability to engage with core issues of legal practice that come from the experience of working with a client on any legal case. as such, they do not focus on the legal needs of a particular community or area of law[footnoteref:32]. in contrast, the specialist model is defined by a particular area of legal need or a broader national concern. in the united kingdom an example of a specialist clinic would be the dementia law clinic at manchester university. established in 2015, this clinic enables students to provide advice under supervision to clients on a range of dementia issues. cases are referred by dementia uk and the alzheimer’s society, and students provide advice to carers and, where appropriate, clients with dementia[footnoteref:33]. [31: winkler, e (2013) ‘clinical legal education: a report on the concept of law clinics’, accessed at https://law.handels.gu.se/digitalassets/1500/1500268_law-clinic-rapport.pdf. ] [32: ibid.] [33: further information about the dementia clinic at manchester university can be accessed at https://www.law.manchester.ac.uk/about/stories/dementia-law-clinic-2/.] the key feature of the community-based model is that students work with particular communities or geographic areas with the aim of empowering the people they serve. some projects will focus on a variety of different practice areas, thereby exposing their students to a diverse caseload. in contrast, other projects will focus on niche areas which are determined by, and according to the needs of, community members[footnoteref:34]. further, as their role may also require the students to deliver training, they become law teachers as well as legal advisers. street law is a good example of a community-based programme which develops students’ skills and empowers communities[footnoteref:35]. [34: winkler, e (2013) ‘clinical legal education: a report on the concept of law clinics’, accessed at https://law.handels.gu.se/digitalassets/1500/1500268_law-clinic-rapport.pdf.] [35: street law’s website states its aims as ‘advancing justice through classroom and community education programs that empower people with the legal and civil knowledge, skills and confidence to bring about positive change for themselves and others. more information can be obtained at https://www.streetlaw.org/. ] legal outreach models legal outreach has been defined as “face-to-face legal assistance and advice services delivered away from the primary service/office, in places accessible to the target group”[footnoteref:36]. such services tend to focus on people who are marginalised or socially excluded as a result of issues such as homelessness, disability, mental health issues, vulnerable immigration statuses, financial hardship, unemployment or remote location[footnoteref:37]. as such, individuals may have multiple, complex and interrelated needs which are relevant to their legal problems. legal outreach clinics therefore share some common features with drop-in clinics and community-based projects, discussed earlier in this article. [36: forell, s and gray, a (2009) ‘outreach legal services to people with complex needs: what works?’ law and justice foundation justice issues paper 12.] [37: ibid.] forrell et al’s study of 16 legal outreach projects in new south wales identified that quality outreach advice services are effective in reaching target clients who have not previously sought advice from mainstream legal service providers, or who otherwise would not have received legal assistance. further, there is evidence that legal assistance through outreach services can provide positive legal outcomes, improve clients’ circumstances and prevent problems escalating[footnoteref:38]. in order to achieve positive outcomes, outreach services must be appropriately located and connected with target groups and their support agencies. in addition, they must fill a gap in the existing advice provision to the target group. the service must operate from a location which is physically (and financially) accessible to users and which has private spaces or clients and advisers to discuss confidential cases. [38: ibid.] forrell’s review of existing outreach projects indicated that the legal advisers working in outreach services required particular skills. these included having a ‘generalist’ knowledge across varied practice areas as many clients have intersecting legal problems, having an awareness of other organisations and support services which clients could be referred to and being skilled in communicating and working with the target group[footnoteref:39]. to this, the authors would add that advisors must also be compassionate and able to empathise with how clients’ difficulties can impact their engagement with legal services. for example, clients with complex needs may not always attend appointments, may give contradictory accounts, may not provide the relevant documentation and may struggle to remain engaged in the process. it is valuable for students to gain an appreciation of how legal needs impact individuals’ abilities to engage in the legal process. [39: ibid.] the projects discussed within this article, lab and e4j, can be regarded as legal outreach services as they both focus on working with targeted communities in order to address unmet legal need[footnoteref:40]. the advice is provided by students within the communities and therefore in places which are frequented and trusted by the target groups. partnerships have been formed with local agencies and/or law firms in order to carry out appropriate legal needs and service gap analyses, develop appropriate systems of referrals and ensure legitimacy within the target communities. in relation to the targeted communities, lab operates within the community of byker in the east-end of newcastle upon tyne to provide initial advice to its residents. byker has a score of 2 on the index of multiple deprivation[footnoteref:41]. of the families living in the community, 48% live in local authority accommodation[footnoteref:42], 53% of the children are regarded as living in low-income families[footnoteref:43] and over 25% describe themselves as living with a long-term health problem which affects their day-to-day activities[footnoteref:44]. lab is delivered in partnership between the university and a regional legal aid law firm situated in byker. [40: ibid.] [41: information about the socio-economic demographics of byker can be accessed at: http://www.knownewcastle.org.uk/drilldownprofile.aspx?pid=44&rt=11&rid=59029&cookiecheck=true.] [42: ibid.] [43: ibid.] [44: ibid.] in contrast, e4j operates in the ward of wingrove which is situated in the west-end of newcastle. whilst wingrove has a lower score of 13 on the index of multiple deprivation, many of its female residents experience other barriers to securing legal advice. wingrove has a high black and minority ethnic (bame) population; over 50% of its residents identify as ‘non-white’ and 21% of households have no people for whom english is their first language[footnoteref:45]. e4j was established with the principle aim of empowering bame women through the provision of initial legal advice. students work in association with a regional legal aid firm and a specialist bame women-only organisation to provide initial legal advice to bame women who are unable to secure legal aid or pay privately for advice. in addition to structural barriers, in many of the cultures served by the project, there are sociocultural practices that can permit male dominance and a culture of shame if bame women dishonour their families by taking private issues into the public domain[footnoteref:46]. many bame women with insecure immigration statuses, or which are dependent on a uk national spouses may also fear engaging with formal justice systems (i.e. lawyers, judges and the court system) because of fear they will ‘say the wrong thing’ and compromise their security[footnoteref:47]. bame women who have been brought to england upon marriage to a uk national may not speak english, lack cultural networks outside their immediate community and therefore lack awareness of their rights[footnoteref:48]. [45: information about the socio-economic demographics of wingrove can be accessed at: http://www.knownewcastle.org.uk/drilldownprofile.aspx?rt=11&rid=58981&pid=44&cookiecheck=true&jscript=1.] [46: siddiqui, h (2018) ‘counting the cost: bme women and gender-based violence in the uk’ ippr progressive review. ] [47: ibid.] [48: legal services commission (2009) ‘report on black, asian and minority ethnic (bame) women, domestic abuse and access to legal aid’.] the legal aid agency (formerly the legal services commission) have identified that many bame women distrust the legal system because of ‘referral fatigue’ (telling their story to numerous professionals who are unable to assist) whilst others fear engaging with a solicitor and are intimidated by a formal legal environment[footnoteref:49]. for some bame women, there are practical difficulties seeking advice because they are chaperoned to appointments by family members and therefore are unable to report or seek help. it has also been reported that bame women who are able to secure access to a solicitor, find that professionals may be unable to understand the cultural issues in their case sufficiently to represent them[footnoteref:50]. other bame women felt that solicitors were too ‘process driven’ and that legal aid clients were treated poorly in comparison to private paying clients[footnoteref:51]. the advice provided by solicitors can also be perceived as inflexible. an example of this is divorce being presented as the only option available on separation, despite the high status conferred on marriage in many cultures. this may lead to bame women being deterred from seeking support in the future. despite the fact that some women might not wish to leave the relationship or take legal action in respect of their relationship, they still need information and support about their options. these barriers are concerning because bame women are disproportionately affected by domestic abuse and therefore are more likely to require legal support and advice services[footnoteref:52]. bame communities have higher levels of domestic homicide, ‘honour’ killings and abuse driven suicide[footnoteref:53]. women are also at risk of culturally specific forms of abuse such as forced marriage, female genital mutilation and dowry related abuse[footnoteref:54]. [49: ibid.] [50: ibid.] [51: ibid.] [52: siddiqui, h (2018) ‘counting the cost: bme women and gender-based violence in the uk’ ippr progressive review.] [53: patel, p. and siddiqui, h. (2010) ‘shrinking secular spaces: asian women at the intersect of race, religion and gender’, in thiara, r.k. and gill, a.k. (eds) violence against women in south asian communities: issues for policy and practice, london: jessica kingsley publishers.] [54: see paragraph 73 of the home affairs report published on 22 october 2018, which can be accessed at: https://publications.parliament.uk/pa/cm201719/cmselect/cmhaff/1015/101503.htm#_idtextanchor000.] considerations underpinning the projects lab and e4j are underpinned by the following community and pedagogical considerations: 1. the aims of the project are twofold. firstly, the authors wish to reach the targeted communities in areas of legal practice where there is limited or no existing advice provision. as such, it was vital that the authors were not simply duplicating existing legal services or providing advice in cases where preferential funding opportunities may exist. the focus of the services is empowering communities through legal advice and education. impact can be demonstrated in a variety of ways including that (a) the project has prevented a legal problem from escalating (b) the project has improved the client’s circumstances and/or (c) the project has given the client confidence, self-esteem and capacity to take the case forward. in addition, the educational aims of the projects were to develop the students’ professional skills and preparedness for practice whilst also developing their competency in working with communities with complex needs. it was also considered important that students had the opportunity to provide advice off-campus and within the targeted communities. 2. it was felt that face-to-face advice was vital in order to build trust and a relationship between the students and the client. as such, the project could not be limited to the ‘letters of advice’ model discussed above. due to capacity and resourcing issues, it was not feasible to offer a full representation model. as such, it was felt that advice would be limited to one-off initial advice. in relation to e4j, it was also felt that the students could draw on the clients’ experiences to engage in advocacy and law reform to improve the ways in which law affects people within the community. 3. it was considered that a strict drop-in would not be feasible given that both projects would be supervised by a small number of solicitors with limited specialisms. further, the space available at the appointment venues (a regional legal aid firm for lab and a women’s centre for e4j) would not allow high numbers of clients at each sessions. the authors were also mindful of the pedagogical limitations of drop-in clinics, which are addressed above. in particular, it was felt that students working with vulnerable individuals for the first time (and indeed the clients they were serving) would benefit from their having sufficient time to conduct research and prepare for the appointments. prior to beginning work with lab or e4j, the authors organise induction sessions for the students in which they are able to work through simulated scenarios which mirror those they are likely to incur within the sessions. arranging the appointments in advance also reduces the likelihood of clients disclosing legal issues which are beyond the scope and/or expertise of the service as full details of the enquiry are taken at the enquiry stage. 4. by increasing the students’ understanding of the context in which advice is provided, it was hoped that this would reduce the likelihood of the students becoming distressed by the issues they are exposed to. to reduce the possibility of vicarious trauma, the supervisors ensure that they are approachable for students to discuss any concerns with. further, the university runs a number of sessions focussed on wellbeing which students are encouraged to attend. students are also encouraged to reflect with their supervisors and peers about their cases in regular weekly meetings. the next part of this article will discuss lab and e4j in detail. case study 1: legal advice byker lab is a legal outreach clinic whereby students go into the community in order to provide the advice. lab began in january 2012 with the objective of providing members of the public with access to legal advice in circumstances in which they may not otherwise be able to obtain such advice[footnoteref:55]. this may be due to either the cost involved in paying a solicitor or otherwise to the nature of the enquiry where the solicitor may not assist. students work in partnership with a regional legal aid firm in the community of byker, newcastle upon tyne in order to provide initial advice to its residents. [55: this is highlighted in the northumbria university course manual 'legal practice course student manual 2018-19'. ] the project runs from january to may each year. during the course of the project, the students conduct three separate, one-off initial advice sessions. lab is run by student advisors who study on the post-graduate lpc course at northumbria university. the students chose whether to take lab as one of their elective subjects after attending an introductory lecture on what is involved and what is expected of them[footnoteref:56]. the students therefore undertake this project alongside several other classroom based, elective subjects. students generally have limited practical experience advising clients when they begin this elective, although many have had a period of work experience in law firms. [56: in contrast to the final year law students undertaking the four year m law (exempting) degree at northumbria university where the student law office module is a compulsory year-long module. ] all appointments are arranged in advance with the clients and brief details of the case are taken by the lab administrators within the slo. this is necessary as cases with urgent deadlines, cases that are particularly complex and cases where there is no solicitor with expertise in the applicable area of law are unlikely to be offered an appointment. areas of law which have been covered include family law, housing, employment, civil litigation and welfare benefits. however, the areas of practice do change each year depending on what area of law the available solicitors specialise in. the students gain the opportunity to deliver three advice sessions throughout lab. therefore they could potentially conduct client interviews in three different areas of law and provides students with the experience of working under the supervision of three different solicitors. if the enquiry is considered suitable by the solicitor supervisor the enquiry is allocated to a pair of students and they undertake responsibility for the client. they have up to a week to open a client file, undertake and prepare the practical legal research and draft the interview plan. this work is completed under a tight timescale, so that they are prepared to advise on the day of their first appointment with the client. the solicitor supervisor checks both the practical legal research report and interview plan and returns each document to the students with their amendments as formative feedback[footnoteref:57]. [57: boothby, c (2016) ‘pigs are not fattened by being weighed’ so why assess clinic and can we defend our methods?’ international journal of clinical legal education volume 23.] two advice appointments take place at the offices of the regional law firm and one appointment takes place within the slo at northumbria university. on the day of the advice session at the local law firm, the students gather in the boardroom in advance of the appointment time. here they meet the external solicitor supervisor and discuss the enquiry, the amended research report and the interview plan. each student pair then conducts the client interview. they provide compliance information, confirm their instructions and obtains any missing factfind information. after around 30 minutes the interview is paused for 15 minutes and the client waits while the students return to the board room to further discuss the case with their supervisor. a discussion takes place as to whether any further research is required before advice can be given or whether the advice remains appropriate and can therefore be given there and then. where advice can be given, it is formulated by the students drawing on their existing research and agreed by the supervisor. the students return to the interview room and deliver the appropriate advice. where possible, should the client require further assistance referrals are made to appropriate law firms. the interview process is usually complete within one hour. the speed at which the advice is provided more closely resembles life in practice where a client can expect to receive some initial advice during their first appointment. for the advice appointment which takes place in the slo, the same procedure is followed, except the enquiry is supervised solely by the designated solicitor within the university. following the advice appointment, the students draft an attendance note of the meeting which sets out the client’s instructions and the advice that was given. the students then confirm the advice in writing to the client within three weeks of the date of the appointment. the solicitor supervisor approves the letter of advice and provides the students with feedback. where the case has been supervised by a solicitor at the local law firm, the advice letter is approved and signed by the solicitor and sent out on the firms’ letterhead paper. attached to the letter is a questionnaire, which asks the client to provide feedback about their experience. once the letter is sent to the client, the file is closed. at this stage, the external solicitor completes a pro-forma feedback form and sends this to the designated slo supervisor who will ultimately assess that student at the end of the programme. the pro-forma allows the supervisor to comment on all aspects of the students work, including the research report, interview and letter writing. as each pair of students have the opportunity to conduct three advice appointments, 18 clients can benefit from legal advice under this model. during the academic year 2016-2017, 12 students participated in this project and advice was provided to 12 clients. the discrepancy in the numbers is because not all clients attended an appointment and whilst the authors do not know the exact reasons why, this may support the authors’ view that clients with complex needs may struggle to engage in the legal advice process more so than those who do not. case study 2: empower 4 justice (e4j) as considered earlier in this article, e4j is another example of a legal outreach clinic operating within a vulnerable community and lead by staff who work within the slo. e4j was set up in september 2017 with the principle aim of empowering bame women through the provision of initial legal advice. students work in association with a regional legal aid firm and a specialist bame women-only organisation to provide initial legal advice to bame women who are unable to secure legal aid or pay privately for advice. many of the clients are vulnerable by reason of being survivors of domestic abuse including forced marriage, fgm, sexual abuse and exploitation, domestic slavery and coercive control. in addition to legal concerns, some of the women also experience related problems such as homelessness, poverty and insecure immigration statuses. e4j was established to address some of the structural and cultural access difficulties that many bame women found in securing advice in the north-east of england, which are explored above. there is national concern about a reduction in support for specialist bame services and ongoing support for their existence. this was summarised in the recent home affairs committee report following the government consultation ‘transforming the response to domestic abuse’: we are particularly concerned about the reported decrease in specialist services for bame victims of abuse. some bame women are more vulnerable to culturally specific types of abuse and can find it particularly difficult to seek help because of close-knit family and communities, and because of language difficulties. witnesses provided evidence about a range of specific problems for some bame women, including financial difficulties for those with no recourse to public funds, transnational marriage abandonment, honour-based violence and extra-territorial jurisdiction for victims who are removed from the uk in order to be harmed. we believe that specialist ‘by and for’ bame domestic abuse services are necessary to win the confidence of bame victims of abuse, to understand the issues they face and to have the skills and experience to provide the necessary support[footnoteref:58]. [58: paragraph 73 of the home affairs report published on 22 october 2018, which can be accessed at: https://publications.parliament.uk/pa/cm201719/cmselect/cmhaff/1015/101503.htm#_idtextanchor000.  ] the project runs one afternoon each month between october and april, in line with the academic calendar. within each session, four appointments are available ranging in length between one hour and one and a half hours. every year there is therefore capacity to deal with 28 enquiries. unlike lab, which is an lpc elective, e4j is run by student advisors on the final year of the m law degree programme who are undertaking the clinical slo module. as such, participation in this project supplements their existing casework in the slo. typically, these students have limited practical experience working with clients as their undergraduate legal education has thus far focussed on black letter law. similarly to lab, e4j is not a strict drop-in clinic in the sense that appointments are arranged in advance with the clients. it was felt that a drop-in clinic would lack merit for both the students and the clients, as the students would not be familiar with the areas of law and could not therefore provide any meaningful advice (without significant supervisor input). further, the sheer demand for the service would be problematic as there are a limited number of supervisors at each session with limited specialisms. the women’s organisation is responsible for identifying suitable referrals from their existing client base and providing enquiries to the slo at least one week in advance of the appointment. this initial triage is helpful because it reduces the prospect of us receiving an enquiry which would not be suitable for the supervisor or students. further, as the enquiry is prepared by someone with an existing relationship with the client (usually a support worker or domestic violence advocate), the referrals contain considerable levels of detail which in turn, supports the students’ ability to conduct effective research. of course, a limitation of the project is that women who have not sought initial support at the women’s organisation are not able to receive advice through the project and therefore will likely continue to go without advice and support. suitable enquiries tend to be those which are neither urgent nor overly complex as the students have a limited amount of time to conduct research. in addition, where it is clear that clients are likely to be eligible for legal aid, it would always be preferable for a referral to be made to the partner legal aid firm at outset. the main areas of unmet legal need following laspo are housing, family law and welfare benefits[footnoteref:59] and this is reflected in demand and therefore the areas of law that are covered by the project. there is also a demand for immigration advice however unfortunately there are no solicitors specialising in this area. family law cases which are suitable for initial advice tend to include information about divorce and judicial separation proceedings, contact arrangements for children and cohabitation disputes. housing enquiries often focus on public sector issues (where legal aid is not available) such as homelessness, allocation policies and procedures and local government housing responsibilities more generally. by virtue of the fact that many of the clients have cultural, financial and familial links to other jurisdictions, the cases often have an international element. this provides students an opportunity to learn about different religious, cultural and political perspectives and approaches to the law[footnoteref:60]. an example of this can be seen in relation to the recognition of islamic marriages. there have been a handful of cases where students have been required to advise women about the legal validity (or lack thereof) of a nikah contract. many muslim women are unaware that an islamic nikah ceremony performed in england (without an accompanying civil ceremony) is unlikely to create a legally recognised marriage with the couple still classed as cohabitants in the eyes of english law[footnoteref:61]. therefore, should the marriage break down, the financially weaker party (usually the ‘wife’) is vulnerable as there are limited financial claims she can make against her husband. the need for legal reform in this area has been the focus of scholars, practitioners and campaigners[footnoteref:62]. it is valuable for students to engage in discussions about whether this lack of protection is discriminatory and debate the options for law reform in this area. [59: amnesty international (2016) ‘cuts that hurt: legal aid cuts in england on access to justice’ [accessed at https://www.amnesty.org/download/documents/eur4549362016english.pdf].] [60: reynolds, w (1995) ‘why teach international family law in conflicts’ 28 vanderbilt journal of transnational law.] [61: see, for example, o’sullivan, k & jackson, j (2017) ‘muslim marriage (non recognition): implications and possible solutions’ journal of social welfare and family law, 39:1, pp. 22-41.] [62: ibid.] similarly to lab, after receiving the enquiry form, two student advisors are allocated to the case and they must carry out initial research based on the information available to them. the research report should identify any further information required about the client’s case and make a preliminary assessment about any action the client can take and the merits of proposed action. importantly, as the client will be taking any further steps without the assistance of a legal representative, any practical action must be clearly identified. the research report is approved by the students’ supervisor who will be a specialist solicitor, barrister or caseworker in the relevant area of law. as with lab, the research report forms the basis of the interview plans which the students rely on in the appointment. despite being a women’s only service, both male and female students participate in e4j. there is, however, space on the enquiry form for the advocate to specify whether the client requires female-only advisers. this may be justified, for example, where the client may experience trauma or re-victimisation due to their previous experiences. the availability of female-only advisers is arguably an essential part of acting in the best interests of each client and providing a proper standard of service to each client[footnoteref:63]. whilst this option exists, to date there have been no requests for female-only advisers. [63: as required by principles 4 and 5 of the solicitors regulation authority code of conduct.] the appointments take place at the women’s organisation in order to provide an accessible environment with which the women are already familiar. unlike a formal legal environment, appointments are carried out on sofas in a room which resembles a living room. with their consent, clients are accompanied by a support worker or independent domestic violence advocate (idva) with whom they already work closely. this ensures that a ‘holistic’ approach to supporting the client is adopted where both their legal and emotional needs are considered. further, from a practical perspective, it means that the idva is aware what advice has been provided and can provide ongoing support to the client if they need to take further steps to resolve their legal case. it also allows the advocate to act as an independent translator for clients with limited english. to assist with the informality, students are encouraged to wear office appropriate clothing however this does not necessarily have to be a suit, which may be intimidating to some clients. the students are supported in the appointment by their supervisor. in a similar manner to lab, during the first part of the appointment the students will provide compliance information (i.e. in order to comply with gdpr and solicitors regulation authority requirements) and ask fact find questions to ensure they have all relevant information. following this, the students have a discussion with their supervisor about whether the advice remains appropriate in light of any further information that has been provided. assuming this is the case, the students then return to the appointment to deliver the advice. alternatively, if the advice has changed (typically because the factual background to the case is different to anticipated), the students may not be able to provide immediate advice as it may be necessary to carry out further research. after the appointment, the students complete a one-page pro-forma with a bullet pointed list of the advice provided to the client and any immediate action they need to take. this is followed by a comprehensive advice letter which is sent to the client within 21 days of the appointment. at this point, the client’s file is closed reflecting that the retainer has come to an end. where possible, referrals will be made to appropriate law firms for the case to be taken on under a legal aid contract or a fee agreement. at this stage, the clients are also asked to provide feedback about their experience through a questionnaire in order to assess client satisfaction and contribute to the ongoing development of the project. in its initial year, over 28 students participated in the project and advice was provided to 14 women. in addition to this, a training session was delivered to the idvas and support staff at the women’s organisation about the availability of civil claims under the criminal injuries compensation authority for victims of domestic abuse. analysis of the northumbria university case studies community benefits the advantage of a legal clinic in offering a valuable service to the local community is well established in the literature[footnoteref:64]. however, the projects outlined in this article have taken this one-step further. with both projects, the students are required to leave the university campus and actively go out into the targeted community in order to provide their legal advice. the legal advice is provided within communities where there is limited or no existing pro bono advice provision available. in lab, the students go to a regional law firm situated in an area of high social deprivation to provide the advice. by providing a pro bono legal advice clinic alongside this law firm, the partnership raises the profile of the service within the local community and supports unmet legal need. likewise, in e4j, students work within a women’s organisation alongside idvas and support workers. in turn, the students target a specific community to ensure they receive the appropriate advice and assistance. [64: frank dignan (2011) ‘bridging the academic/vocational divide: the creation of a law clinic in an academic law school’ 16 international journal of clinical legal education volume 75.] there is arguably a direct access to justice advantage that arises from extending the legal services offered by a law clinic to those areas of law in which external solicitors can supervise[footnoteref:65]. in lab, 12 clients benefitted from legal advice under this model during the academic year 2016-2017 and there was an equal spread of advice given in the areas of general civil litigation, housing, family and employment law. with regards to e4j, 14 women benefitted from legal advice last year. the majority of advice (61%) was in the area of family law, whilst 30% of cases related to housing law and the remainder concerned welfare benefits. as explained above, whether the enquiry is suitable to advise on does depend on the area of specialism of the available supervisors in each project; however, these were also the areas in which there was the most demand for service. [65: castles, m (2016) ‘marriage of convenience or a match made in heaven? collaboration between a law school clinic and a commercial law firm’ international journal of clinical legal education, volume 23, pp. 7-47.] from the authors’ experience, the one-off advice appointment is usually either sufficient to resolve the client’s issue (in that they have no need to seek further legal advice) or the project gives the client the confidence, self-esteem and capacity to take the case forward themselves. in some cases this has been reported by the clients’ support worker (in the case of e4j) or was reported in the client feedback questionnaire. in the authors’ view this beneficial impact is a result of the advice being comprehensive, tailored to the particular case and practically focussed so clients have a clear idea about how to progress the matter. where further legal assistance has been required, the client’s circumstances were also improved through an appropriate referral system which directed them either to the slo (to students on another programme at the university), to the partner law firm as a client because legal aid or a conditional or contingent fee agreement could be offered or to another local law firm or pro bono organisation specialising in the relevant area of law. this supports previous research, which highlights that a legal outreach service can provide effective legal outcomes, improve clients’ circumstances and prevent problems escalating[footnoteref:66]. [66: forell, s and gray, a (2009) ‘outreach legal services to people with complex needs: what works?’ law and justice foundation justice issues paper 12] the projects have received positive feedback from clients within the questionnaires that are completed at the end of their experience with the clinic or from the clients’ support workers. e4j has also been recognised at the annual law works & attorney general student pro-bono awards, where it was awarded “best new pro bono activity”[footnoteref:67]. the award nomination included the e4j project together with the wider work that the students do to assist victims of domestic abuse in the local community through the slo. as such, these projects have led to reputational benefits for the university. [67: https://www.lawworks.org.uk/solicitors-and-volunteers/get-involved/lawworks-and-attorney-generals-student-pro-bono-awards-2018. ] pedagogical benefits the outreach model used in both lab and e4j enables the students to intensively develop their employability skills and preparedness for practice. unlike the slo model, there is no initial fact find interview, which gives the students a significant amount of time to digest the information and undertake their legal research. in lab, the students swiftly conduct their research based upon the initial enquiry information and thereafter prepare for their advice interview. however, unlike a drop-in model, the students have sufficient time to prepare for the interview and get to grips with the issues. in the authors’ view, the right balance is struck between giving the students the appropriate time to research but also ensuring they meet the challenges of working under pressure and under a tight timescale. the result is that arguably the students intensively develop their professional skills and are better equipped and prepared to handle the demands of the legal profession. simultaneously the advice is comprehensive and tailored to the client’s case rather than the more superficial approach of a drop-in. as the advice is confirmed in writing, the students also develop their written communication skills. in lab, the partnership between the university and the local law firm enriches the students’ experience. the students work with and learn from at least two solicitor supervisors; one of whom is an experienced practitioner within the target community, thereby allowing students to develop a holistic approach to providing the advice. bleasdale-hill highlights that the internal supervision model (where the academic members of staff supervise the student) provides for more contact with the supervisor than an external model (which involves external practitioners)[footnoteref:68]. she considers that this in turn enhances the skills students gain from the clinic. under the lab model, the students gain the benefit of both the internal and external supervision model. they work under their internal supervisor throughout the project and this provides them with an opportunity to gain frequent and regular feedback. they attend their weekly firm meeting with their internal supervisor and the rest of their firm members. they also have the benefit of an appraisal where they are invited to reflect upon their skills and their experience to date. they also work under the external supervisor, which brings the opportunity for the student to engage with different practice styles[footnoteref:69]. students learn whether they should adjust their style and how they can do so, thereby developing their professional identity. likewise, in e4j, students work alongside idvas and support workers which gives them an understanding of how legal advice interacts with other services (for example counselling) and an awareness of the different roles that professionals play in supporting survivors. [68: bleasdale-hill, l and wragg,p (2013) ‘models of clinics and their value to students, universities and the community in the post 2012 fees era’ international journal of clinical legal education, volume 19, pp.257-270. ] [69: plerhoples, a and spratley, a (2014) ‘engaging outside counsel in transactional law clinics’ clinical law review volume 20, pp 379, 393. ] the involvement of different supervisors also expands the breadth of work the students can engage in and thereby affords those students with experience in different areas of law. however where students advise on the same area of law in all of their advice sessions this equally beneficial as they are exposed to ‘the same legal problem but from new or different perspectives’[footnoteref:70]. in turn, this enables students to develop a deeper perspective about the complexities and nuances of particular legal problems. [70: winkler, e (2013) ‘clinical legal education: a report on the concept of law clinics’, accessed at https://law.handels.gu.se/digitalassets/1500/1500268_law-clinic-rapport.pdf.] the students also gain an insight into the social and personal issues affecting their local communities, are exposed to clients they otherwise may not be in contact with. as students are required to leave the university campus and go out into the community, they are able to meet people from different walks of life and develop new perspectives. by advising within disadvantaged, targeted communities the students develop their competency in working with those who have complex needs. in addition the students must also be compassionate and learn the importance of empathy when meeting their clients. as mentioned earlier in this article, clients’ difficulties can impact their engagement with legal services and students gain an appreciation of this. for example, clients with complex needs may not always attend appointments, may give contradictory accounts and may not provide the relevant documentation. the students involved have valued the opportunity to promote access to justice at difficult times in their lives. this is reflected in the comments made by students, shown below. “working in this project has helped me learn and grow and i think become a more well-rounded individual never mind practitioner.” “working in communities and with women where they seemingly have no other access to legal advice made it more satisfying that i was able to be a part of it.” “you just felt so sorry for the women that you were helping, just it really made me feel like i was doing something worthwhile.” “it made me more interested in working within the area of family law…. i was able to gain a deeper insight into something that normally happens behind closed doors. i want to help people that are in similar situations”. limitations the authors accept that the model adopted in lab and e4j has limitations from a client, student and supervision viewpoint. the students provide one-off initial advice, they do not undertake to represent the client at court or provide any further assistance beyond the appointment. however, as highlighted above this model does benefit more clients as a greater number receive initial advice than in a model, which involves further legal assistance and representation. from a student perspective, through initial advice they see a snapshot of their client’s case. they do not gain the experience that full case representation brings, such as liaising with an opponent and drafting court documents. it also remains a challenge for the students to balance their workload however this is not unique to lab and e4j. however, the students are informed at an early stage what is expected of them and the authors consider that this ultimately improves their time management skills. finally, from a supervision viewpoint, it is recognised that there must be sufficient feedback from the external solicitor to both the student and the internal solicitor. this is imperative for both the student who must learn how they can improve a particular skill or piece of work and for the internal supervisor who must be in a position to effectively assess the students on their practical work at the end of the project. to overcome this challenge a framework was put in place for the students to receive not just feedback on their work and during the face-to-face meeting, but also to receive a completed feedback form on their performance. conclusion undoubtedly cle plays a valuable role both to the community in promoting access to justice and to the participating students in developing their professional skills and preparedness for practice. this article has outlined two outreach projects operated by northumbria university through cle and has sought to demonstrate the pedagogical benefits to the participating students and the access to justice advantages they bring to the communities they serve. from a student perspective, the value of the model lies not only in the intense development of skills competencies but also in gaining an insight into the social and personal issues affecting a local community through working with those who have complex needs. the students gain an appreciation of the value of clinical work within disadvantaged communities and the access to justice challenges faced by their clients. from a community perspective, effective partnerships have been formed which have targeted vulnerable communities whilst simultaneously addressing unmet legal need. taking into account the positive student and client feedback from these projects (and therefore the associated reputational benefit), the authors would encourage other clinical supervisors to form partnerships with external agencies and utilise the legal outreach model. 198 from the field report from the field: some notes on the ‘clinics and sqe – what next?’ conference about the new route to qualifying as a solicitor in england and wales malcolm m combe[footnoteref:1], university of strathclyde[footnoteref:2] [1: malcolm combe is a senior lecturer in scots private law at the university of strathclyde. ] [2: thanks to the school of law at the university of aberdeen (my former employer) for facilitating my attendance at the event that forms the basis of this note.] on 5 june 2019, coventry university and the clinical legal education organisation hosted an event entitled ‘clinics and sqe – what next?’[footnoteref:3]. [3: see https://www.eventbrite.co.uk/e/clinics-and-sqe-what-next-tickets-60520905658# accessed 28.06.2019.] to the uninitiated, at least two questions flow from that title. first, what is sqe? second, whatever it is, what does it mean for law clinics? sqe stands for ‘solicitors qualifying exam’.[footnoteref:4] sqe is a big deal for any readers in england and wales who are concerned with legal education. two quickfire clarifications. 1) for ease i’ll just say ‘england’ rather than ‘england and wales’ as shorthand from now on, but stay tuned for another welsh-interest point. 2) the phrase ‘concerned with legal education’ can be used broadly: naturally there are those who provide education, which might be thought of as my main interest, but of course there are also those who participate in legal education, and also those who want to benefit from educated individuals (i.e. employers, but also society more generally). for this note i will pay more attention to the educators though, and particularly clinicians. [4: see https://www.sra.org.uk/sqe/ accessed 28.06.2019.] sqe 1 and sqe 2 are two separate assessment exercises which will soon – it seems – be playing a gatekeeper role for access to the legal profession in england, albeit it will operate with the additional requirements of having a certain amount of eligible experience undertaking legal activity in a verifiable way (this being known as ‘qualifying work experience’), and also the requirements of probity expected of solicitors, namely to be an ethical and professionally aware soul (the ‘character and suitability requirements’). there was an initial proposed roll out date of 2020, but this has slipped back to 2021. sqe 1 and sqe 2 – taken together as sqe – will assume the gatekeeper role that is currently by the legal practice course (lpc) qualification, whilst also rendering the graduate diploma in law (gdl) conversion route from one degree to another otiose. much more could be written about all of this. for now, it can be noted that some remain sceptical about the sqe on its own merits, with various points relating to this being touched on below. others seem firmly of the view that the sqe train is coming and it is a bit late to try to stop it outright. depending on when you are reading this and what has actually happened, this description might already seem dated or simplistic, but i suppose that is an inherent risk in notes such as this. this note will simply proceed by accepting that appointed timeline and the necessity of adapting to sqe quickly, with a side order of an explanation as to why a scot might be interested in all of this. why else was a scot interested in the event? the functional reason for my attendance was that one of the representative bodies for law clinics – the clinical legal education organisation (cleo)[footnoteref:5] – had its agm at coventry on the day of the conference. i am a trustee of cleo, and there was also a trustee meeting. on the assumption that the fine detail of the governance of cleo is not something that will engage readers too much, i will forgo discussion about that and instead take the opportunity in this note to set out some of the discussions about the acronym that is gloriously monosyllabically rendered as the phonetic ‘squee’ (which sounds like the kind of noise a child would emit whilst having lots of fun in an enid blyton-esque way, before drinking lashings of ginger beer). [5: see http://www.cleo-uk.org/ accessed 28.06.2019.] before doing that, i’ll briefly explain what this might mean to a scot, and indeed to this scottish writer. a first point is that several scottish law schools offer english law qualifications. another point is that what happens in the larger jurisdiction of england might have an impact or at least an influence on the direction of legal education and training in scotland. don’t get me wrong, this is an issue that periodically arises in scotland anyway – with discussions being instigated either by the regulatory/professional body (2017),[footnoteref:6] by politicians (2018),[footnoteref:7] or as part of wider review of legal services triggered by government (the roberton review, 2018).[footnoteref:8] it’s just that whenever the biggest jurisdiction in the uk does something this can have a ripple effect elsewhere, in terms of copying what is seen to work or being cautious over what does not work. a further point is that what the (larger) clinic sector does in england is of more than passing interest to the (smaller) jurisdiction of scotland, and if the clinic sector down south is moving and innovating, the question of whether scotland should also innovate is almost entirely independent to the reason for england’s innovation. in the meantime, though, and for the purposes of this note, i suppose the writer’s scottish perspective might offer a chance to offer a relatively detached perspective on what is happening with sqe now. [6: see https://www.lawscot.org.uk/news-and-events/news/do-we-need-alternative-routes-to-the-profession-in-scotland/ accessed 28.06.2019.] [7: see https://digitalpublications.parliament.scot/committees/report/j/2018/9/23/training-the-next-generation-of-lawyers--professional-legal-education-in-scotland#introduction accessed 28.06.2019.] [8: roberton review, (2018). available at: https://www.gov.scot/news/report-of-the-independent-review-of-legal-services/ accessed 28.06.2019.] returning to the question i omitted from the above, what does it mean for clinics? a few things, and that was the central theme of the conference. here comes the main thrust of this note accordingly, with the following largely representing my conference notes in roughly chronological order in a polished form. that is a disclaimer in itself, but please also note the further disclaimers that no firm conclusions are reached here, and also that i might be horribly parsing or paraphrasing other people’s views here. clinics and sqe – what happened? panel 1 – sqe, law schools and the role of clinics in legal education before setting out what was discussed, i will offer one point on the title of the panel. no criticism of that title is intended, i stress, which was absolutely fit for the purpose of the day, it is just that it might be worth noting that there is a healthy amount of literature on what role law clinics can play in legal education anyway, not least in this open access journal, and also in my 2014 article in the law teacher[footnoteref:9] and a more recent analysis by stephan van der merwe in the stellenbosch law review.[footnoteref:10] it can also be noted that the potential to use clinical work as part of qualifying work experience has also been subject to some academic analysis.[footnoteref:11] such scholarship notwithstanding, the event (and in turn this note) uses sqe as both the springboard and the setting for the discussion. [9: combe, m. ‘selling intra-curricular clinical legal education’. (2014) the law teacher 48(3) 281.] [10: van der merwe, s. ‘a case study in advocating for expanded clinical legal education: the university of stellenbosch module’ (2017) stell lr 28(3) 679.] [11: dunn, r., roper, v. & kennedy, v. ‘clinical legal education as qualifying work experience for solicitors’. (2018). the law teacher 52(4) 439.] we were welcomed to the conference by stephen hardy (head of coventry law school), who began with the wistful observation that clinic had developed somewhat to what it was when he was younger, namely something that you did on a wednesday afternoon if you were rubbish at sport. he introduced a panel of julie brannan (from the solicitors regulation authority, aka the sra[footnoteref:12]), i. stephanie boyce (from the law society [of england and wales], but speaking on the day as a consultant), and professor elaine hall (northumbria university). stephen played chair for that session and was ably supported on the day by alan east (also coventry) and lucy yeatman (liverpool). it was also observed early in proceedings, i think by stephen, that external changes to the curriculum are not necessarily a bad thing, and that they could properly be designed to change and challenge us. [12: see https://www.sra.org.uk/home/home ] the first panel member to speak was julie from the sra. for non-english readers, it is worth recalling that there is a regulatory and professional representation split in england: the sra is in charge of regulating the profession, and the role of representing the profession falls on the law society[footnoteref:13]. different approaches are available: for example, in scotland the law of society of scotland[footnoteref:14] retains the regulatory role, whilst also representing the profession. [13: see https://www.lawsociety.org.uk/ ] [14: see https://www.lawscot.org.uk/ ] the sra is pushing for route to the profession reforms in principle and is now seeking implementation in good time. julie noted the new system envisages everyone who qualifies must have a degree or equivalent, then sqe 1 (knowledge) and sqe 2 (skills), mixed with two years of qualifying work experience (represented by the acronym qwe, gloriously phonetically rendered as ‘quee’, details of which can be found in the regulations available online[footnoteref:15]), and satisfaction of the character requirements. she stressed there was no particular order (so you could do sqe 1 after sqe 2, a point that was clarified in the q&a); all that mattered was that students had all of those by the time they applied to get a practising certificate and on the roll of solicitors. [15: see https://www.sra.org.uk/sra/policy/future/resources.page#resources ] why was this reform being brought in? the main reason, which was returned to a couple of times, was a hope to remove some of the barriers in the current system, in terms of cost and availability of training contracts. regarding the cost, it was noted sqe might weigh in at £3000 – £4,500. another related point was the conversion rate of the present route to qualification, which involves the vocational qualification the legal practice course. apparently where a candidate is financed through the lpc by a law firm, this brought a conversion to solicitor of 95%. when trying another route (such as support from the ‘bank of mum and dad’), the conversion rate was 70% or so. the gamble of doing the lpc without having a contract was raised. what would the new qualification route mean for clinics? julie noted working in a law clinic might be within the umbrella of what can contribute to qualifying work experience – i.e. under the supervision of a solicitor (that is to say a solicitor on the roll, not necessarily in practice). it was also noted that qwe could be built up in ‘no more than four organisations’ – and a law clinic could be an overarching single organisation (that is to say, you might also include within that law clinic allocation some placements led by the university, meaning you do not use up another one of the four). the second speaker, stephanie, mentioned a concern for the law society of england and wales, namely that welsh language resources for the assessment might not be available in good time, which is pretty important as there is a legal need for this to be the case. as someone with an interest in minority languages, this was more than a bit interesting to me – any remaining doubts about the sqe aside, it would be quite something if provision of materials in welsh slows the sqe roll out down.[footnoteref:16] [16: see mac síthigh, d. ‘official status of languages in the uk and ireland’ (2018). common law world review, 47(1), 77-102. and for a flavour of my own interest, see this post on my wordpress blog: combe, m. ‘scots gaelic, scots law and scots attitudes’ (2015). https://basedrones.wordpress.com/2015/09/04/scots-gaelic-scots-law-and-scots-attitudes/ accessed 28.06.2019.] elaine was the third speaker, and she noted that she remained of the view the sqe was not a good idea, and that she had not given up on the idea of stalling or perhaps even scrapping it. i am conscious i don’t want to put words into anyone’s mouth, so please count this as paraphrasing. anyway, as part of her presentation, she took some figures from the sra website (a website that she noted was lovely and thanked the sra for that), and basically noted that with ~192,000 solicitors on the roll, of which ~147,000 are practising, where were all the current law students going to fit into this irrespective of the sqe? based on figures from the law society, 2017/18 saw 18,850 uk students enrolled on undergraduate courses, and then there are roughly 6,000-7,000 new members coming on to the roll in a year, so there might well be fewer law-type jobs than that. (fewer than half of law graduates will have even a law-related job, never mind be a barrister or solicitor.) returning to the sqe, elaine then channelled tolkien as a means to critique the cult around the new expected journey: one exam to rule them all, one exam to find them, one exam to bring them all, and in the darkness bind them. (it works better when ‘ring’ and ‘bring’ rhyme and scan, but kudos to elaine as i geekily enjoyed this.) she also wondered whether all the problems with the present system that were cited really were problems, and, wondered if we were spending lots of time and money to replace something that is basically working. that broadside towards sqe aside, what about sqe and law clinics? in her view, [qualifying] work experience in clinics cannot just be aimed towards ticking sqe boxes, clinical work should also be about making people better, more self-aware, more ethical, and so on. that is to say, clinic experience should be a more holistic affair, and not ousted by technical qwe requirements. if they can align though, all well and good, but how much in the way of clinical experience could be given over a three or indeed four-year degree programme? taking two years’ experience as 3,248 hours (although julie stressed this number was not regulated by sra – this being the two years fte equivalent from the uk government, and the sra says they won’t count hours), how much could be done? taking her amazing, lovely university with its developed clinic and also including potential summer work and everything else students might do for a clinic in their free time, elaine reckoned students could still only realistically get to 50% of the hours. someone would still need, for example, a handy uncle with a handy law firm to top up the hours. she also feared that promising loads of hours could open universities/clinics up to advertising problems, and the last thing she wanted was for the advertising standards authority to be after her for promising more hours than might be delivered. julie did respond by noting the hours requirement was permissive rather than directory, and then the session opened up into a q&a discussion. one big question was ‘how will this system actually differ?’ it was speculated that people coming to the legal profession from other professions might do things more quickly than they would under the current system. on what the system will mean for supervisors (and clinicians), it was asked whether barristers could sign off, and the answer was ‘no’. why? because the sra cannot regulate barristers, so barristers making any kind of dishonest declaration could not be chased by the sra. what does a solicitor need to do (in relation to qwe)? a solicitor needs to make an honest declaration, and not necessarily make a statement about reaching a certain competency. the supervising solicitor simply says they have had the opportunity to reach those standards, and those standards would be finally signed off by sqe 2. the solicitors in the room asked for further details: if it is not an exact hours issues, and not a competency point, when will a signing off solicitor be pulled up by the regulator? the example given was a solicitor saying (for example) a student has done three months instead of one. what else might allow for qwe to be topped up? a) a formal training contract for a year. b) acting as a paralegal. c) involvement with suitable unregulated services. this being so, the point that was returned to is that there will still only be 6,000 or so jobs for people navigating the system, notwithstanding these changes. another point was raised about whether magic circle [big london] firms would even be interested in what is happening at clinic, or indeed qwe as a whole: would they not just put people through their own training regardless? returning to clinics as a whole, one delegate noted sqe doesn’t harm what clinics are or should be doing, so whilst people may still have wider reservations clinic still can have a role. another delegate later in the day stressed sqe would not change her clinic’s focus on access to justice. that being said, the potential danger of a university and its clinic(s) coming a cropper in terms of marketing was returned to, and there was a point made about the huge burden of record keeping that could/would emerge. one point that would be relevant for many clinics though was that sqe 1’s knowledge requirements did not cover some key clinic subjects: for example, there was no social security law or family law in sqe 1 (with ‘company and commercial’ being the only topic that is a non-reserved[footnoteref:17] solicitor area which sqe 1 covers). this might have the danger of skewing clinic activities in some cases. [17: that is to say, the specific legal services activities that only those who are authorised (or exempt) can carry on, per section 12 of the legal services act 2007.] in terms of other comments made as this panel concluded, one person rather pessimistically noted they felt the new route was but a ‘paint job with a new name’ and was not actually about increasing access to the profession, with it also being noted that the whole sqe innovation brings together the worst stuff of the lpc and/or the law society finals. that being the case, another noted the sqe was never going to be able to solve everything, so maybe people were being a bit too downbeat. a final point that was made here is that this sqe system is but the starting point, and it might be tweaked in future. that brought the morning session to a close. panel 2 – social justice and sqe the afternoon featured another panel discussion, with three clinicians and one consultant. the one sqe-er, so to speak, in this case was not so much someone who had been sent out to bat for sqe on the day, but rather someone who had been involved with its planning yet was not involved in its implementation. this was crispin passmore, a consultant who knows the legal market well and who previously ran a successful law centre in coventry, albeit he is not a lawyer himself. katherine king (central england law centre), stephanie jones (university of central lancashire) and elizabeth fisher-frank (essex law clinic) brought current pro bono perspectives to bear on this discussion. they spoke variously about: · outreach work in particularly deprived areas (including areas where the clients could not even afford to get to a university campus); · the potential for a commercial law clinic (and how, despite potential criticisms that this could be a distraction from ‘at the coalface’ access to justice activities, it in fact perpetuates access to justice by sustaining the economy at a local level, plus also providing opportunities to three student interns with 10-month positions, who in turn provided client continuity over their period of office); and · placement models (linking coventry with the central england law centre, with a connected course featuring a reflective diary). with those situations in mind, one of my favourite observations of the day was made: clinics help students to think like clients rather than like lawyers. that is to say, when someone presents with a situation that boils down to ‘i have x legal problem’, do not just tell them what the law says about x, rather tell them what they need to do. what about funding for clinics? in the brave new sqe world, there may be a need to come up with further justifications for a clinic’s existence. sure, budgets might get squeezed but teaching still needs done, and clinics can be part of that. that said, returning to a theme from earlier in the day, would students be driven to complete clinic tasks that are covered in the sqe 2 test (i.e. those within the reserved activities or ‘company and commercial matters), with pressure from (for example) the market on universities to facilitate that? once again, a response to this proposed incarnation was this is still a pilot phase, so it could still be possible to make a case to tweak this in the near future. returning to the overall clinic point, how does the clinic sector convince people ‘we need more not less’ in terms of clinic? can the views of employers play a role here? can the importance of clinics be stressed to university administrators? then came a pretty interesting question, namely: ‘would clinics end up competing against each other?’ i suppose this might happen when qwe in one clinic ticks boxes and seems sexier than qwe in another, but this can quickly be countered by the fact this is probably unlikely to be so much of an issue in and of itself where demand outstrips supply, and that does seem to be the case in (parts of) england at the moment. there was also brief discussion along the lines of whether there might be scope to offer commercial advice to people who might even pay a bit for that, and then feeding back proceeds into social welfare law work. other than a quick discussion about the confidentiality of clinic work in the context of qwe (which most delegates thought would be manageable) plus some later workshopping about clinics and qwe, that was the end of the main sqe chat on the day. there was then some further discussion about what clinics can do more generally, with action in relation to climate challenges being a possible focal point. on this, one delegate (brontie ansell) noted the possibility of helping community groups who try to bring in local food solutions or recycle old furniture, i recalled some discussion at the 2017 ijcle conference in northumbria about students taking action in relation to a local emitter, and i also made a quick reference to a partnership of scottish universities and the development trusts association for scotland’s scottish university land unit (sulu) initiative[footnoteref:18] in terms of helping local communities overcome land-based barriers to sustainable activities, and wondering if there might be an equivalent down south relating to the localism act 2011 and its assets of community value. such steps might seem small in the overall climate challenge that we face at the moment, but the words of patrick geddes seem appropriate here: “think global, act local”. [18: see https://dtascommunityownership.org.uk/community/community-asset-transfer/build-land-law-law/scottish-university-land-unit-sulu accessed 28.06.2019.] conclusion although this note has been drawn together by one author, it has very much been a team effort drawing together the thoughts of many people much more au fait with sqe and english law clinics than i am. as such, it seems fitting to once again borrow from someone else to offer some edited highlights from the event in an attempt at a conclusion. after the event, lucy yeatman drew together various headline points and circulated them to the cleo network. on sqe, and from julie brannan’s contribution from the sra in particular, the following headlines were noted: · only a solicitor can sign off the qualifying work experience. this is because the sra need to be able to take action against anyone who falsely certifies that qualifying work experience has taken place. · the sra has no definition of ‘full-time’. they do not plan to count the hours that a potential solicitor has undertaken in their work placement. it is up to the solicitor certifying that the work has been done to decide what full time looks like. · the regulations have been drafted to allow an ‘umbrella’ organisation to sing off work, so that a law clinic student who has volunteered in the cab and done more than one project in an internal clinic and bundle this together as one of their four pieces of work experience. it is the professional responsibility of the person signing off the work to be satisfied that it has taken place. · there is no need to comment of the standard achieved in the work. the sqe 1 and sqe 2 are the tests of competence. the requirement of the qualifying work experience is only that the prospective solicitor has had opportunities to develop skills and knowledge needed to be a solicitor. thereafter, there were some small group discussions and the feedback from them was that guidance on qualifying work experience in law clinics would be helpful, with that help potentially entailing: · guidance clarifying the points above so that law clinics planning to certify experience as part of the qualifying work experience are clear about what is involved. · a template or document for students to use as a reflective diary linked to the competency statement demonstrating how they have developed the skills and knowledge needed to be a solicitor. · support on training students to talk about their experience without breaching confidentiality. by way of final conclusion, i should note a ‘well done’ to coventry and the team at cleo for putting on such a useful event. i certainly left the day better informed, and in turn i hope this note might play a part in bringing you up to speed with the important changes that are on the horizon. 249 201077je_jcle_july07 introducing legal clinics in olomouc, czech republic vendula bryxová – maxim tomoszek – veronika vlcková law faculty of palacky university, olomouc, czech republic the czech context in the czech republic, clinical legal education is not very developed. it does not fit into the traditional view of legal education, which itself is based mainly on an austrian and german legal tradition which emphasizes legal positivism, legal history and a lecture style of lessons. the university environment in the czech republic is very conservative. open minded teachers (mostly young assistants) have very little space for their own creativity during the lessons. most of the czech law teachers do not have any training in teaching methodology. moreover the general attitude is that there is no special need for practical courses because “the students will receive their practical training once they are in practice after finishing the law school”. these attitudes result in very sceptical approach to the methodology of teaching, if we can speak about any methodology at all. to put it simply, the content of the lecture is seen as more important than the way the content is taught. the knowledge-based approach of the czech legal education is also very closely related to the lack of evaluation, assessment and reflection of the teaching process. czech law teachers do not use these methods for several reasons. first, because they do not want to be evaluated; secondly they take evaluation very personally; thirdly they do not know how to make use of such evaluation; and fourthly they think the students cannot properly assess the quality of teaching. even though students would be prepared to evaluate the teaching, most teachers would not know how to be evaluated. equally the students have no motivation to evaluate the teaching process because they feel it is not going to have any effect. the lack of student motivation affects education as a whole. there is a need to raise the general level of student motivation so that students are able to participate actively in their education. the general habits of the students are that they study only right before their exams, which means the learned information stays in their memory only for short time and in the long run, they can remember only a small fraction of it. in relation to clinic specifically there are particular fears that the provision of free legal aid will mean that clinics will steal work from practising advocates – including the university lecturers who work as advocates. such staff is therefore not greatly interested in helping to establish the clinics or taking part in them. finally, it should be noted that faculties are usually managed by old conservative professors, who are not introducing legal clinics in olomouc, czech republic 149 ^ journal of clinical legal education december 2006 150 very fond of incorporating the practical courses into the law faculty’s curriculum. there may be a degree of fear of the unknown, and in any event they are convinced their teaching methods are the best (they have used them with “good” results for such a long time). most of the teachers still teach according to the old methods and in accordance with the motto “teachers are those who know, i.e. demigods, the students on the other hand know nothing”. this causes a huge gap between teachers and students and it makes communication very hard. the palacky university context: the law faculty of palacky university in olomouc is in some respects special even within the czech environment. it is quite a young institution (being established in 1991), which means that the staff mostly consists of young teachers, enthusiastic and willing to do something new, to change the system of education as a whole. the management staff is also quite young and the institutional obstacles are therefore not as impenetrable as at the other faculties. even though we were able to incorporate some practical courses, problems have not disappeared. we have found out how difficult it is to manage the financing of the clinic, and establish a staff group with the necessary backgrounds. teachers within the law faculty of palacky university in olomouc are likely to carry a substantial teaching load of lessons in doctrinal law. they are unlikely to have any training in clinical teaching methodologies. and the majority of them will not be practitioners since practitioners prioritize their own practice to teaching because teaching is both time-consuming and unprofitable when compared to the rewards of practice. legal clinics at palacky university even though the law faculty of palacky university in olomouc, czech republic, was probably the first law faculty in central europe to start a legal clinic,1 in following years it stagnated both in number of students and in quality of education, especially due to the lack of finance and the lack of people who were willing to be involved. the clinic then benefited from a joint project of european social fund and ministry of education of the czech republic2 which granted the olomouc law faculty funding for period of july 2006 to june 2008. there are currently five legal clinics embedded in the curricula of the law faculty of the palacky university in olomouc – students’ legal advising office, administrative law clinic, refugee law clinic, human rights clinic and clinic of electronic communications law. in total, there are more than 80 students taking part in clinical subjects, while eleven members of faculty and five experts from different ngos are teaching and supervising in these clinics. the students’ legal advising office is a live-client clinic, while the other clinics function on a mixed basis, i.e. combining various clinical methods (internship, externship, live-client work, simulation and so on). the centre for clinical legal education, which provides organizational and administrative support for functioning of the clinics, was established as an organisational unit of the faculty. legal clinics in olomouc are not based solely on common law models of clinical legal education. in 2006 we started a very successful cooperation with the polish foundation of legal clinics. the co-operation with the polish legal clinics was very helpful especially during the preparation of the clinical programs. 1 with the kind help of professor stefan h. krieger of hofstra university school of law in 1996 2 “development of practical forms of education at law faculty of palacky university in olomouc” in general terms, for the majority of general practical questions concerning the organization and methodology we drew inspiration from the us and the uk legal clinics, while the narrower practical questions of organization were taken from poland, which enabled us to take advantage of the same legal system, similar cultural and social environment.3 our experiences in implementing the clinics this section focuses on our experience of introducing clinical legal education in the czech republic, focusing on problems we encountered or anticipated, what in our opinion their sources were and how we have resolved or avoided them. given that the idea of clinical legal education originates in and is very tightly connected with common law system, in the stage of preparing and designing the clinical subjects for olomouc law faculty, which operates within our czech civil law environment, we wondered whether there would be some problems deriving from differences between the common law systems and civil law system and how we would overcome them if they did arise. one of the problems we anticipated arose in relation to the status of case law. case law presents an important difference between the civil and common law systems since in civil law systems the search for judicial decisions is not as significant at the case analysis stage as it is in common law systems which are based on judge-made law (precedents). throughout their studies, our students’ work is focused mainly on abstract law and codes, whereas in common law systems students work extensively with case-law, which is without any doubt much more practical form of education since it tends to teach the students how the law is applied in a particular case. we were therefore concerned as to how the czech students would make the jump from a mostly theoretical education to the case-oriented approach of clinical education. however our experience shows that most students involved in the clinical legal education were able to start working on the cases of the clients coming to the clinic almost at once, although some of them required a short period (two weeks to one month) of more intensive cooperation with their supervisor to feel comfortable when working on the case. we were also pleased to find out, that students were quite happy to work with case law (such as european court of human rights case law in a human rights clinic), since for them it was more or less an untouched area and therefore interesting and motivating, resulting in very good student outcomes. other issues in the clinic after analyzing this issue and finding out that it was not as problematic as we thought it might be we started to analyze other problems we were experiencing. we realized that the rest of problems were either not related to the difference between common law and civil law at all or to a far greater extent arose from other sources, such as cultural and social diversity and differences between systems of education. the liability issue: this feature has been of the utmost importance to us. it is clear that the students, who are helping the clients as a part of their education, should not be held liable for damage clients can suffer as a result of students’ activity. however it is not easy to avoid such liability. even though most live-client clinics require their clients to sign a statement that they are aware their case is going to be handled by the students in the legal clinic as a part of the students’ legal education, and acknowledge that the students introducing legal clinics in olomouc, czech republic 3 in particular we should give credit to the book the legal clinics. the idea, organization, methodology. [http://www.fupp.org.pl/down/legal_clinic.pdf], which helped us a lot. 151 journal of clinical legal education december 2006 152 will not be liable for any damage caused as a consequence of their help, the liability of the university still remains. this can to some extent be addressed through the provision of insurance cover. however, the amount of damages that the insurance covers may not always be adequate. we have therefore needed to take other measures such as introducing criteria for refusing cases, where the potential liability would be too great. the practitioner/academic divide: another problem is that the most of the teachers at the law faculty of palacky university in olomouc are not practitioners or advocates, which impacts on skills development and legal ethics. as we have suggested, experienced specialists who could share their practical experience with students are not interested in teaching at law faculty – they are too busy or the teaching is not profitable enough for them to do it. on the other hand teachers within the faculty lack practical experience, so that it can be hard for them to pass on the knowledge, and students often do not have enough confidence in them. even where practitioners do contribute to the teaching, in our view the experienced lawyers usually lack experience of interactive teaching methods. currently, in order to resolve this, we apply the following model: the education is mainly the responsibility of law faculty teachers, who focus on skills development, while at the same time we try to involve experienced practicing lawyers in the clinic as much as possible in order to transfer practical experience to students. it has also proven very helpful to cooperate with various ngos. the lawyers working in ngos have very valuable practical experience and at the same time they are able to teach very effectively using advanced teaching methods such as simulation. additionally they also tend to bring a positive attitude to pro bono work. the organization of legal clinics: clinical administration and organisation gives rise to a number of specific issues for our clinics. case selection: in the first place there are issues around case selection. in general the legal clinics do not accept all potential cases; quite often there are precise selection criteria for accepting the case, for example, the lack of finances on the part of the client. in the czech republic, there are many people in need of free legal aid, which thus creates a good environment for live-client clinics. in order to control the number of clients we cooperate with our ngo partners. those clients whose cases are too complicated for our students are handed over to the ngos. equally where the ngos are faced with too many clients, they may refer clients to our clinics. the clinic does not take on any form of criminal case, largely because these are perceived as particularly risk-intensive for the clinic. additionally we do not take on cases that arise in relation to issues between advocates and their clients, or cases which are likely to be overly complicated – such as property restitutions. nor do we accept clients who are already represented by an advocate or clients who can apparently afford one. pre-requisite knowledge: we also face the difficulty of ensuring that students have sufficient knowledge to be able to help clients or otherwise participate in the clinic. when deciding the syllabus of the students’ legal advising office, which is a live-client clinic, we could afford to design it to be almost completely practical, because the vast majority of clients’ cases solved by the students were relatively simple cases in areas of law that had been taught very extensively during previous modules. there are, however, areas of law, such as refugee law that are not covered in any prior non-clinical studies, which means the students enter the clinic without having any knowledge of the relevant substantive law. it has therefore been necessary to design the refugee law clinic so as to include a theoretical component in order to ensure that students have enough knowledge to successfully go through the practical part of the clinic. representation at court: another important issue for us was whether the students should be able to represent clients in court. there are some clinical projects in other jurisdictions where the students are eligible to represent clients before the court. this makes the clinical courses more attractive and allows the students to gain a more profound understanding of judicial proceedings. in respect to this, the czech law provides for non-professional occasional representation before the court (in some aspects similar to the concept of the amicus curiae). this might apply to clinical students and would thus allow them to participate in any court proceedings. however we have decided that students will not be permitted to do so. there are two reasons for this: the first is to avoid possible conflict with local advocates; the second is the issue of liability, since we are still not sure whether the insurance would cover activities of students within judicial proceedings. however this is something that we are keeping under review for future years. clinical issues and the wider educational context we believe that the rest of the problems we mention here have a very close connection with the organization of legal education and, moreover, with organization of education as a whole. as has already been mentioned above, in the czech republic there are in general no special courses on any type of skills at any level of education and there is no tradition of teaching them. the older generation of lawyers were not themselves taught legal skills, and would find it difficult themselves to teach students legal skills. this corresponds with the stereotype of how ordinary people perceive a lawyer – someone with knowledge, rather than skills. thus even university students have very little sense of the legal skills which a legal practitioner should have. in consequence they have no real expectations concerning the extent of skills training that they need or the need for the improvement of those skills that they already possess. in general the czech system of education is focused on theory and the transmission of specific theoretical findings. this contrasts with, for example, the uk or the u.s. where, in our opinion, much more emphasis is placed on teaching through student activity, on communication and the application of knowledge – as well as on skills development. in our view skills build a bridge between theory and practice, and we therefore feel that we need to maximize the teaching of legal skills in any form within our law faculty’s curriculum. we can provide a good example of the way in which knowledge is prioritized within our system. at the law faculty of palacky university in olomouc, due to the lack of skills training during the legal education we decided to conduct a workshop on legal skills for students involved in legal clinics. one part of the workshop consisted in simulated client interview. the students were taught by advocates, who also had some teaching experience. however, when it came to evaluation, the lecturers focused on knowledge the students exhibited, but did not pay any attention to use of skills during the interview. student and staff expectations in relation to legal education – and clinical education – cannot be disregarded, as the influence of teachers’ expectations concerning the work of students and their study results is also obvious. these expectations (from both students and teachers) focus on the achievement of defined theoretical conclusions, not on skills development. a good example of this attitude is shown in the lessons conducted by experienced specialists (such as advocates and public officials), who would often hold a tedious lecture (and thus completely avoid addressing their own practical experience) instead of using simulation or another interactive method, which could also have developed students’ skills. however this is not simply an issue of the approach adopted by the teaching staff. students themselves do not expect teachers to use other than didactical methods of education. thus at the workshop on legal introducing legal clinics in olomouc, czech republic 153 journal of clinical legal education december 2006 154 skills which we mention above, a professional psychologist started his lesson by asking the students about their interests and expectations concerning the lesson (and thus concluding an educational contract with them) with the intention that the students gained the sense of being the ones who decided the content of the lesson. however after the lesson the students evaluated the psychologist as “not having the lesson sufficiently prepared, because at the beginning he asked students, what they would like to do”! our solution to this problem is to insist on the use of interactive teaching methods by all teachers and sometimes even “forcing” students to play an active part during the lessons. however this is not always possible, due to the great number of teachers who have never experienced such methods during their studies. moreover, the students are used to passive forms of teaching with the teachers presenting everything needed without any effort being needed by the students. in addition to these issues with expectations of teaching styles and methodologies, we also face difficulties in relation to teaching certain subject areas – in particular the teaching of legal ethics. this is a subject that is traditionally taught in western countries. however, during the communist era in the czech republic the traditional conception of legal ethics was violated and the development of the subject stopped. ethics, as a subject for teaching, was neglected; it has not been taught at schools. in our view the level of morality diminished during this time and this was reflected in the law as well. now there is a new opportunity to start the teaching of legal ethics either as a new subject in our curriculum or as a part of existing subjects. the impact of the lack of legal ethics teaching as a part of the legal education curriculum can arguably be seen in ethical frailty of some advocates in practice, perhaps arising from the fact that students are not taught about how to develop an appropriate relationship between an advocate and a client. another wider curriculum problem which affects the development of clinical programmes and skills development is assessment. we (and here we can speak for our whole clinical team) know how to evaluate knowledge. but we also know that within the clinical education the focus of the assessment may be on areas such as legal skills, particularly since possession of sufficient knowledge is a prerequisite for entering the clinics. however, since students spend considerably less time in clinics compared to the uk or the u.s. legal clinics, the consequence is that the contact between students and teachers is not intensive enough to allow for the assessment to be based solely on one’s own observations of the students. that is why there is a pressing need for some form of externally reviewable assessment. with this in mind we required clinical students to produce a reflective journal. this worked well but we came up against the problem of insufficient earlier skills development: students do not know how to reflect and some of them do not want to reflect at all (being afraid of sharing their perceptions, and feelings, and trying to protect their privacy). most students do not even understand the meaning of the reflection as an invaluable part of learning process. lack of the reflective skills came out very clearly during the evaluation of reflective journals after the first semester of the legal clinics. the reflective journals were almost completely descriptive and thus tended to reach no more than the first level of reflection at best. having said this, however, we note that in our discussions concerning reflection with our colleagues from the uk, they have made clear that often they experience similar problems with student reflection, and that the solution is not an easy one. the issue around reflection connects with another phenomenon that exists in the czech republic – the aversion to, and the fear of, sharing one’s own opinion. this hunger to merge with the crowd and not to differ is the inheritance from the communist regime. there was only one accepted opinion and nobody was ever asked to present his own opinion. but the problem is also with the traditional teaching methods – with the reliance on lectures and seminars. seminars, which are intended to practice and discuss the problems covered by the lecture, often end up looking very similar to lectures; they have the same expository character. most of the times the teachers use the seminars to catch up in what have not been covered at the lecture and there is no space for discussion, solving problems. when occasionally there is some element of discussion of practice in seminars, the teachers still do not use the practical and interactive methods of teaching. in our opinion this also shows that there is a need for practical forms of education focusing on legal skills development in civil law systems. it seems to us that while in common law systems students acquire lawyering skills during their studies as a “by-product” of the learning style, this is not true in civil law systems. as against this, however, one should point out that in the czech republic there is no pressure on law faculties to include legal skills training in their curricula, because the most legal professions like judge, advocate or prosecutor require a three-year period of practice and exam. it is generally felt that graduates will have enough time during this period to develop legal skills in practice. conclusions in our introduction of legal clinics into the curriculum of the law faculty of palacky university, we found the experience from both civil law clinical models and common law clinical models extremely helpful. the differences that arose in introducing clinic into the czech republic were not only connected with law but also with social and cultural differences as well. although the sources of our clinical inspiration were in different jurisdictions, we think that it is essential not to just mechanically transpose the experience from one system to another, but rather to identify the potential problem areas features in order to avoid them. interestingly although we were worried about the impact of the differences between common law and civil law, we did not find any major conflicts that would exclude transferring experience from one system to another. so far we have identified only one problem arising from the differences between two legal systems and that is the use of case law during work on specific cases. in the czech republic, because of the civil law system, the use of the case law is not that important in case preparation, so that the consequences of insufficient case law analysis are not that serious. on the other hand through using the case law in the clinics students start to focus on a more case-oriented approach to law. the other problems we have faced are connected with the particular context of the czech educational system, and the approaches and general attitudes to legal education from both teachers and students. in our opinion the most important common problem of legal education (and clinical legal education in particular) is the development of transferable legal skills. in some countries, like our own, this may be very acute problem, because the lower levels of education are very knowledge-oriented and the skills are not being taught. the consequence is that even where teachers want to start teaching skills, they have to do so in a knowledge-oriented environment and therefore with a lack of support and understanding, and with little experience of skills teaching methodologies. in this regard it is enormously useful to be able to draw on teaching experiences from other jurisdictions with a tradition of skills teaching. in relation to the legal clinics at the law faculty of palacky university in olomouc, the key problems are mainly those concerning the liability for damages, case management (including case selection criteria) and the lack of experienced supervisors. there is also the problem of the lack of any prior exposure to legal ethics teaching for the students. when facing all of these problems we had to find some functional solutions. we are aware that most of the solutions we have found are temporary and that we might find better ones as we get more experienced in running the legal clinics. however we also note that when we spoke to introducing legal clinics in olomouc, czech republic 155 156 journal of clinical legal education december 2006 colleagues from other jurisdictions about many of these issues, they tended to confirm that they were facing many of the same problems – the quality of students’ reflection in reflective journals, lack of teachers with practical experience, problems in communication with students and so on. this supports the idea that there are fundamental similarities in clinical education regardless of legal systems. social and cultural differences and especially the difference between systems of education can sometimes be very challenging but in our opinion far from being irresolvable. in the era of globalization it is clear that these differences are vanishing. reviewed article – clinic, the university and society connectivity, confidentiality and confidence: key issues in the provision of online pro bono activities emma jones, francine ryan and hugh mcfaul, open university, uk abstract the provision of pro bono activities for law students has become an established feature of the undergraduate legal education landscape in law schools in the united kingdom (“uk”) and beyond, providing the experiential elements of clinical legal education programmes. pro bono activities conducted online, or utilising and enhanced by technologies in other ways (for example, through the development of a mobile phone application providing legal guidance), are increasingly becoming a part of this offering, reflecting wider shifts within legal practice and society and an increasing recognition of the importance of digital literacy skills. this paper will situate these forms of online and technologically-enhanced pro bono activities both within the wider context of contemporary clinical legal education and also as a part of broader professional and societal shifts. it will explore a variety of innovative approaches being taken internationally, including work done by the open university’s open justice centre in the uk, before moving on to focus on a number of key challenges and opportunities which may arise through the increasing provision of these new forms of pro bono activities by law schools. these include the potential and pitfalls of the technology involved, issues with confidentiality (particularly in the context of online legal advice) and the issue of how to foster trust in the online environment. the paper will conclude with a number of suggestions for areas requiring further research and discussion to enable contemporary clinicians to fully utilise the potential of online and technologically-enhanced pro bono activities. introduction in the uk, most clinical legal education programmes involve the provision of pro bono activities. the phrase pro bono derives from the latin pro bono publico – “for the public good”. a definition of pro bono activity is provided by the joint pro bono protocol for legal work agreed by the law society, bar council and chartered institution of legal executives in england and wales. this states that: …when we refer to pro bono legal work we mean legal advice or representation provided by lawyers in the public interest including to individuals, charities and community groups who cannot afford to pay for that advice or representation and where public and alternative means of funding are not available (law works n.d, section 1.1). the focus on advice and representation in this definition is arguably reflected by the emphasis of clinical legal education within law schools in the uk, with drummond and mckeever (2015) pointing out that the predominant type of activity is for students to provide legal advice to members of the public under supervision. however, within this the range of services offered vary considerably. kerrigan and murray (2011) show that legal advice clinics can range from in-house advice and representation clinics, which may provide a similar service to the client as that which they would expect if they instructed a law firm, to advice-only services which assist the client in identifying the legal issue and provide a referral service to other agencies. in addition to in-house activities, students may take part in placements or externships or specialist projects such as the innocence project[footnoteref:2], or free representation unit.[footnoteref:3] [2: https://www.innocenceproject.org/.] [3: http://www.thefru.org.uk/.] as well as the provision of legal advice, there are also a myriad of public legal education activities which law students are involved in, such as streetlaw,[footnoteref:4] which form an important part of clinical legal education programmes. at first sight these pro bono activities are distinct from traditional legal practice as they do not involve the delivery of individual legal advice. however, they do involve “working to a specific brief and interacting with the public in relation to legal rights and responsibilities” (kerrigan and murray, 2011, p.7). therefore, there is a significant overlap with the form of pro bono activities referred to in the joint pro bono protocol for legal work. for the purpose of this paper, the main focus will be on pro bono activities involving the provision of free legal advice and representation, but wider categories of public legal education activities will also be drawn upon on occasion given the close relationship between these different forms. [4: http://streetlaw.org.] traditionally, pro bono work in law schools has been carried out face-to-face (kerrigan and murray, 2011). this often involves law schools’ providing either drop-in or appointment-based advice and representation clinics on a number of different areas of law in a face-to-face setting. some law schools locate their law clinic in the law faculty whereas others choose to share premises with community groups or other advice centres. similarly, public legal education activities have commonly involved small groups of students visiting a school, prison or community group within the locality to provide face-to-face presentations. however, there is an increasing interest in, and the gradual introduction of, pro bono activities which are either conducted online, or harness online technologies to enhance their delivery and impact, both in the uk and internationally. as early as 2001, barry et al recognised the importance of technology and how it could transform the delivery of clinical legal education. they segmented clinical legal education into three waves (the third wave being its future) and, when considering how it could adapt to the digital age, argued that: aside from influencing the place of clinical education in the new millennium, technological advances will affect the forms of clinical education by making possible new and different teaching and service opportunities and clinical models (barry et al, 2001, p.54) this arguably mirrors an increasing engagement with technology amongst law schools as a whole, with many offering forms of blended learning and/or additional online materials to enhance the student experience (see, for example, allbon, 2013). the increasing role of technology has also been noted in various aspects of pro bono work generally, including the use of online platforms by clearing houses to match firms offering pro bono services with non-governmental organisations and social enterprises[footnoteref:5] (khadar, 2016) and the development of online self-help platforms for unrepresented litigants[footnoteref:6] (udell, 2016). in society overall, this is a time of accelerated cultural and technology change with sparks and honey (2014, n.p.) describing the postmillennials or generation z, as the “first tribe of true digital natives”. as these students move through law school, and potentially into the legal profession, their engagement with technology is likely to increase the importance of online, and technologically-enhanced, pro bono activities in response to increasing professional and societal demands. indeed, the discussion below demonstrates that this is already occurring with examples ranging from online law clinics in the uk to the development of mobile phone applications and online dispute resolution platforms (for a snapshot of developments in the uk see smith (2017)). [5: see, for example, https://www.trust.org/trustlaw/. ] [6: see, for example, https://lawhelpinteractive.org/.] the use of technology within the legal profession and society this movement towards acknowledging and utilising the potential of technology within clinical legal education, the overall law school experience and the wider provision of pro bono closely reflects wider shifts within legal practice and society as a whole. in terms of legal practice, the use of information technology has become an increasingly significant factor in the delivery of legal services and in the adjudication of civil disputes. smith and patterson (2015) show that this is an area with potential to provide innovative solutions to increase access to legal advice and also to disseminate public legal education so as to raise levels of legal capacity. more broadly, technology is starting to drive the overall administration of justice. online dispute resolution (“odr”) now provides an alternative methods of resolving legal issues. this is a process where legal disputes are resolved via web based systems and there are a number of different versions available. in the united states of america (“usa”), cybersettle, inc was one of the first to provide online settlement via an automated dispute resolution platform which has been used predominately in personal injury cases. the claimant and defendant submit their highest and lowest settlement figures if the offer is greater or equal to the opposition’s offer the case automatically settles.[footnoteref:7] a french odr platform called demanderjustice.com provides an e-filing service for litigants in person and, if the dispute cannot be resolved via odr, the system will create the documents to start legal proceedings. [7: charles brofman a us trial lawyer invented cybersettle. in 1995 he was at court trying to negotiate a settlement with opposing counsel in an insurance claim. they agreed to secretly write down on a piece of paper their settlement figures and hold it up to the court clerk, if the amounts were close the court clerk would put a thumbs up and if not, the papers were destroyed without either side seeing the figures. the court clerk gave them the thumbs up as they were a $1000 apart and they agreed to split the difference and settle the case. this experience prompted brofman to launch cybersettle in 1998 using a “double blind” bidding processsee www.cybersettle.com. ] the dutch government in particular pioneered the use of odr with the rechtwijzer.nl project (translated as “signpost to justice”, “roadmap to justice” or “conflict resolution guide”) the project was run by the dutch legal aid board with support from the netherlands ministry of security and justice. the university of tilburg developed the first two generations of the website and the third generation was evolved by the hague institute for the internationalisation of law (“hiil”). rechtwijzer 2.0 is the first odr platform for difficult problems such as divorce and separation, landlord-tenant disputes and employment disputes. (hiil 2017) it launched in the netherlands in 2014 helping people with divorce related issues and was extended in 2015 to include landlordtenant, consumer conflicts and employment issues. rechtwijzer.nl was more than odr, as it provided legal information and signposting to support litigants in person too. the process began with a series of questions related to the issue in question to help the individual navigate the legal process. it encouraged applicants to consider whether a legal response was the appropriate cause of action in all the circumstances. research from bickel et al (2015) which evaluated users’ experiences of rechtwijzer found they commented positively on their interaction with the website.[footnoteref:8] however, the project ran into difficulties, with rechtwijzer version 2.0 proving to be financially unsustainable. building on the lessons learned by rechtwijzer, justice42 has emergedthis is a new online divorce platform supported by private investment and being developed by many of the hiil team behind rechtwijzer (smith, 2017). [8: the report summarises research conducted with users of rechtwiger in supporting them in divorce and consumer casesthe satisfaction rates for divorces was 7.51 and for consumer cases 7.29 and they indicated they would recommend the website to other people. a 7 point scale was used ranging from not at all (1) to a large extent (7). ] in england and wales there are also an increasing number of examples of odr. the ministry of justice launched money claim online (“mcol”) in 2002, a form of odr which allows claimants and defendants to make or respond to a money claim online. a mcol is for fixed amounts of money of less than £100,000 against no more than two defendants in england and wales. if the claim is disputed it will proceed to hearing before a district judge.[footnoteref:9] low value personal injury cases are being dealt with via a claims portal where the inbuilt case management system runs the process, but it does not resolve the claim, if the matter cannot be settled it still proceeds to a final hearing before a judge.[footnoteref:10] disputes relating to online purchasing of goods and services can be resolved by an odr platform provided by the european commission. a complaint can be made by consumers and traders in the eu, lichtenstein, norway and iceland to be resolved by an approved dispute resolution body the service is either free to use or with a minimal charge. traders are not obliged to engage with the odr process but it is mechanism to resolve issues without incurring significant court costs.[footnoteref:11] [9: the guidance for making a claim is available online at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/520203/money-claim-online-user-guide.pdf. this is 27 pages long and therefore arguably somewhat inaccessible for a litigant in person. if the claimant secures judgment and the defendant fails to pay the debt the claimant can also request a warrant to enforce payment online. ] [10: http://www.claimsportal.org.uk/en/.] [11: https://ec.europa.eu/consumers/odr/main/index.cfm?event=main.home.howitworks.] this use of odr reflects the growing mainstreaming of digital processes: to serve the needs of a 21st century society, the justice system must be digital by default and design…. the creation of online justice cannot therefore simply be a matter of digitising what might be called the frontline processes. it must go further than that. it must properly embrace what is described as online dispute resolution. (ryder, 2016, n.p.) the impact of the reduction in legal aid and the rise of litigants in person in the uk has also encouraged the senior judiciary and government to review the use of technology within the traditional court process (her majesty’s courts and tribunals service, 2015). the importance of digital engagement was outlined by the publication of the 2016 civil courts structure review by lord briggs (“the briggs report”). the focus has been on designing a new process that incorporates the experiences of other jurisdictions but is more transformative in nature. the briggs report proposes a new online court to be used by litigants which will become a compulsory form of civil dispute resolution for certain types of claim. the value and types of claims the online court will adjudicate on are potentially significant. lord briggs recommends the online court should deal with claims up to £25,000 but it should be a gradual process starting with claims up to £10,000 and limited to specified money claims. for example, a dispute with a company where they did not provide goods or services and it is for a fixed amount of money. this would exclude unspecified money claims at present, for example personal injury, professional negligence cases, and non-monetary claims such as injunctions, specific performance and possession of homes. however, it is expected that in the future unspecified money claims will also fall within the remit of the court. the recoverable costs regime will be the same as used in the small claims track where the civil procedure rules part 27 practice direction states that states the amount paid for legal advice and assistance in small claims is a sum not exceeding £260.00. in addition there will be a further recoverable fixed cost payment for advice at the start to determine the merits of a case. it is not intended that lawyers will be excluded from the online court but limiting it to fixed recoverable costs potentially significantly limits the role lawyers are likely to play in the process, demonstrating that both the legal profession and law schools will need to adapt to meet the realities of an online justice system. technological innovation is challenging and early pioneers are not always the ultimate beneficiaries but the experience of rechtwijzer is influencing exciting new developments occurring in other jurisdictions and has contributed to the development of the civil resolution tribunal and mylawbc.com in canada.[footnoteref:12] ambitious technological solutions may be risky but in society more generally, technology is increasingly becoming a key component of our lives the forecast for the number of smart phone users in the uk by 2022 is 53.96 million (statista, 2018). google[footnoteref:13] and other search engines are regularly used to find information and locate services. in 2017 internet use increased further with 89% of adults using the internet in past 3 months. in adults over 75 years of age the growth of internet use is particularly marked, in 2011, 20% of adults over 75 years were internet users compared with 78% in 2017 (office for national statistics, 2017). faster mobile speeds enable connectivity on the move, which has led to the increasing popularity of smart phones. there has also been a significant growth in e-commerce with 41.36 million people engaged in online shopping in 2016 (kemp, 2017). technology has the ability to allow users to access information, as well as communicating at a distance and at a time to suit them. [12: https://www.mylawbc.com and https://www.civilresolutionbc.ca. ] [13: www.google.co.uk. ] the statistics above illustrate that, for the law student of today, the environment in which they will live and work, and potentially practice law in, is imbued with technology. this demonstrates the importance of incorporating this element into clinical legal education programmes to produce citizens, and lawyers, with appropriate digital skills. the meaning of the term “digital skills” is itself evolving (and is also sometimes referred to as digital competency or literacy). however, van dijk and van deursen (2014) suggest six categories, including operational and formal skills (for example, knowing how to access the internet and then navigate it using a web browser); information skills (for example, locating, selecting and evaluating relevant information on the internet); communication skills (for example, instant messaging and emails); content creation skills (for example, creating a blog post or forum post) and strategic skills (involving using digital mediums to achieve a particular personal or professional goal). the value of each of these categories to law students and lawyers is clear in terms of both discrete tasks, such as locating a case online and checking its current status and also more broadly, from being able to curate your online presence when job hunting, to enhancing the profile and reputation of your law firm. it is these digital lawyering skills which are becoming increasingly key within contemporary society. the provision of online and technologically-enhanced pro bono activities offers key opportunities to integrate and develop this important range of digital skills. this is already being acknowledged by, and reflected in, a range of clinical legal education programmes internationally as a number of law schools developing their traditional pro bono work in new and innovative directions. the growth in online and technologically-enhanced pro bono activities the most developed examples of online and technology-enhanced pro bono activities can arguably be found within the usa, where the use of technology to promote access to justice is more firmly established. rostain et al (2013) discuss how students at georgetown university law center have developed a ‘same-sex marriage adviser’ application that can be used across fifty states in the usa. the purpose of the application is to help users decide whether they are able to get married or cohabit within the state in which they live and what impact it might have on their legal rights. the application is an automated advisor which fulfils an unmet legal need because there are legal and financial consequences for those who are embark on same-sex marriage and many people cannot afford a lawyer to advise them on these issues (rostain et al, 2013). in order to build the app, the students create a complex design document which maps the journey of the end-user. students learn a myriad of skills through this process, not only the ability to identify the relevant law, but also how to deconstruct legal rules in a way that will be accessible and appropriate to the needs of the end-user (rostain et al, 2013). similar projects are happening across a number of law schools in the us because of the access to justice (a2j) author course project which developed from a collaboration between calithe center for computer-assisted legal instruction [footnoteref:14],itt chicago-kent college of law and idaho legal aid services. the a2j author course project provides the training materials to facilitate the development of technological solutions to address access to justice issues. at itt chicago-kent they have created a center for access to justice and technology and in 2010 they started the justice & technology practicum which uses the a2j software to allow students to develop customer friendly web-based interfaces for legal assembly to be built (staudt et al 2013). students work directly with litigants-in-person to understand the barriers they face in accessing legal services. the knowledge and understanding the students gain from working with these clients helps and prepares them for designing the document templates required to develop an application (goodenough et al, 2012). also, as part of the practicum, students learn about the ethical issues that arise with the developments of technology (staudt et al 2013). [14: most us law schools are members of calisee its mission statement www.cali.org/about/mission cali is non-profit consortium of law schools, law libraries and similar organisations. ] although the above programmes demonstrate the innovative use of technology within pro bono activities, and by doing so promote access to justice for those who access them, they do still retain face-to-face teaching elements within their wider clinical legal education provision for students. however, a wholly online clinical legal programme is being delivered at charles darwin university (“cdu”) in australia[footnoteref:15]. the clinic comprises of three streams, an environmental law stream, a refugee law stream and the indigenous justice stream. the students are placed in external organisations and are supported via skype, email and telephone by supervising lawyers and faculty staff. ethical issues relating to client confidentiality are taught as part of the class and students are required to sign confidentiality agreements. documents are shared and created in accordance with the protocols of the external organisation. students use online databases to carry out legal research (mccrimmon et al, 2016students in the environmental law stream are either placed with an international pro bono organisation providing advice on climate change or supporting an environmental community legal centre based in the northern territory. in the refugee law stream, students are able to observe court hearings via the federal court’s video link system, whilst in the indigenous justice streams, students are placed with law firms where they carry out legal research, attend meetings and interviews via blackboard collaborate (mccrimmon et al, 2016). the vast majority of law students at cdu are studying online by utilizing technology they have found an innovative way to create an external placement scheme online. [15: the program began as a pilot in 2014 and in 2016 it became a fully accredited module. ] the project at cdu demonstrates that technology can be used to cross regional and state borders suggesting that, with proper supervision, similar online pro bono projects could be developed internationally (mccrimmon et al, 2016). the variety of online pro bono activities undertaken at cdu also demonstrate that technology is relevant not only to public legal education but also to the specific provision of legal advice and representation. indeed, in the uk, the focus of online and technologically-enhanced pro bono activities to date does appear to have been on the use of technology within the law clinic setting, mirroring the predominance of this form of clinical legal education activity (drummond and mckeever, 2015). the university of cumbria has previously piloted an online law clinic (thanaraj and sales, 2015). this involved potential clients’ completing an online contact form and clicking to accept the clinic’s terms and conditions before the query being reviewed by a tutor. if deemed suitable, students would then completed an e-signed agreement with the client and conduct discussions via an encrypted client portal and video conferencing with documents stored securely online (thanaraj and sales, 2015). some other university law clinics currently offer email advice, and/or skype interviews, including strathclyde university.[footnoteref:16] the open university’s open justice centre has also recently launched a wholly online advice-only law clinic, interviewing clients in real time via adobe connect and providing advice by email.[footnoteref:17] members of the public complete a web enquiry form which is then received into a dedicated mailbox from which it is triaged. if the matter is accepted into the law clinic, it will then be inputted into the clio case management system and all communications between students and supervisors relating to the issue will take place online via this platform. the client will be interviewed online (using audio and/or video) via adobe connect and will be able to access the resulting letter of advice via the case management system. [16: https://www.lawclinic.org.uk/oac.] [17: http://law-school.open.ac.uk/.] as a distance learning provider, the open university has had to develop an online solution that works for its geographically dispersed student body. students working in the law clinic are based across the uk, and also internationally, rendering face-to-face meetings and discussions impossible. many also have a range of work and professional commitments which preclude them from accessing pro bono opportunities which are face-to-face or held at particular times and places. for these students, the law clinic provides a valuable opportunity to develop both their digital and legal skills in a way which enhances employability and gives them a greater insight into issues around social justice, professional identity and legal values and ethics. at the same time, the clients of the law clinic are also widely geographically dispersed and may have lacked the knowledge or resources or ability to source appropriate advice within their local area, the law clinic provides them with an accessible way to access this without having to travel or take part in a potentially daunting face-to-face discussion. the above paragraph demonstrates the specific benefits for students and clients’ of the open university’s law clinic. however, for law clinics within conventional, face-to-face university settings, utilising such online technologies also has significant potential benefits, including smaller overheads (with no physical presence required), streamlined case management processes and wide accessibility to clients who may be unable or unwilling to access legal advice face-to-face (thanaraj and sales, 2015). with many law schools seeing social justice as an important part of their mission, and during a time when numbers of law centres are declining (ryan, 2017) and geographic areas have been identified as “legal aid deserts” (the law society of england and wales, 2018, n.p.), it is arguably increasingly important for pro bono activities to transcend geographic boundaries and be as accessible as possible to those in need (whilst acknowledging the potential demands of this in terms of finance and resources). there are also educational advantages in utilising any form of online or digitally-enhanced pro bono activity in terms of developing the digital skills of both students and staff and preparing students for the workplace of the future. given the aspirations of many law students to work within the legal profession (see hardee (2016) in the uk context) and the shift towards odr and digital justice systems, it can be seen that incorporating relevant technologies within clinical legal education programmes could have a significant impact upon student employability, a key tenet of contemporary higher education policy (department for education, 2017, p.8). digital lawyering skills require an appreciation and understanding of technology. rule 1.1 in the model rules of professional responsibility governing lawyers in the usa states that a lawyer should represent a client competently and that “competent representation requires the knowledge, skill, thoroughness, and preparation reasonably necessary for the representation”. in the uk, the solicitors regulation authority’s (“sra”) code of conduct (2011), governing the behaviour of solicitors in england and wales, includes, in principle 5, para. 2.9, a requirement to exercise “competence, skill and diligence…” with goodenough and lauriston (2012, n.p.) suggesting that, if the legal landscape is evolving technologically, “we should ask the question whether a lawyer who has not been trained to understand the technology is indeed competent”. similar technological advancements are also happening in a wide range of other workplaces that law graduates may encounter. therefore, introducing online or technology-enhanced pro bono activities within clinical legal education programmes offers much potential in terms of the personal and professional growth of students. however despite these significant advantages, there are also a number of challenges and barriers to overcome which require careful consideration by any clinician interested in utilising digital technologies effectively in pro bono work. the first of these involves identifying and implementing user-friendly systems and acknowledging the difficulties that the use of such technology may pose for both some clients and students, and even the clinicians supervising the law clinic, who may not have the resources, support or appropriate levels of digital skills to utilise the potential opportunities available (department for culture, media and sport, 2017). connectivity: technological challenges and barriers identifying user-friendly technology systems that can either act as a vehicle for, or significantly enhance, pro bono activities may be a significant undertaking. it is likely to require a high level of input from other parts of the institution, such as information technology and procurement departments, which in turn may have resource implications and incur costs and delay. flood, considering the use of technology in legal education generally, suggests that: … law faculty will have to familiarise themselves more with the technology or providers will have to employ more media and it support staff to help implement this development. (flood, 2015, p.86) in relation to the implementation of a specific clinical legal education programme, the open university’s open justice law clinic experience indicated that a significant level of it support was required, together with other support, for example, in terms of marketing and promotion given the geographically-dispersed nature of the law clinic’s potential clientele. however, this is not a problem which is unique to clinical legal education and pro bono activities – a recent report into higher education globally highlighted the importance of integrating technology across the board, indicating that: real-world skills are needed to bolster employability and workplace development. students expect to graduate into gainful employment. institutions have a responsibility to deliver deeper, active learning experiences and skills-based training that integrate technology in meaningful ways. (the new media consortium, 2017, p.2) it argues that institutions without “robust strategies” for developing online, blended and mobile learning models “simply will not survive” (the new media consortium, 2017, p.2). although this is a broad generalisation, it is reasonable to assume that many universities are likely to be investing heavily in technology in the near future, which may well provide more easily accessible support and resources for clinical legal programmes and pro bono work. as well as demonstrating (once again) the increasing important of technology, the above report also reinforces the relevance of online and technologically-enhanced pro bono activities to employability. one of the key opportunities afforded by online clinical legal education programmes is the potential development of a new generation of digital lawyers, who have the skills to become the legal professionals of the future. however, it cannot be assumed that all students have these capabilities and skills when beginning their clinical legal education. it may take a significant amount of time, effort and resources to up-skill students in a way which enables them to utilise technology appropriately and efficiently. as allbon explains, when discussing the development of a legal skills wiki, “students are less-technology savvy than we often assume” (2013, n.p.) with a seeming familiarity with technology sometimes masking inadequacies around retrieving and evaluating relevant information online (see also bates, 2013) similarly, not all clinicians will have the technical abilities, resources and time to work with their students on developing technologically-innovative projects. these issues may be lessened as the role of technology in higher education continues to develop. however, even if, at present, a lack of time, resources or motivation preclude a significant investment in online and technologically-enhanced pro bono activities for some clinical legal education programmes, it is still possible to explore the potential of such innovations with students and encourage them to think about how they could apply their own personal skillset in this manner, both now and in the future. such projects also provide interesting ethical issues to discuss with students, for example, does the use of crowdfunding to promote commercial cases as an investment opportunity create negative public perceptions of the justice process (spendlove, 2015)? will large, organised groups, who are able to access media publicity, prevail over minority interests and is this appropriate (davies, 2013)? what should happen when the money raised exceeds the costs incurred (padgett and rolston, 2014)? students can also be encouraged to consider wider issues around the introduction and use of artificial intelligence into the provision of legal services and the future of the legal profession as a whole (for discussion on this see susskind and susskind (2017)). perhaps the most significant issue in technological terms is that of the digital literacy of the end-user. collard et al (2011) argue that a prerequisite of being able to access the justice system is the existence of a sufficient level of legal capability (knowledge, skills and attitudes) that enables an individual to engage with the justice system. legal capability is defined as including the ability to recognise and frame the legal dimension of problems and find out more about the legal dimension of a problem. (collard et al, 2011, pp.3-4). thus without the requisite level of legal capability individuals are unable to recognise the legal dimension of their problems and are thus excluded from accessing the justice system. however, evidence suggests that it is not just lack of legal capacity that prevents people dealing with legal problems but also poverty and social exclusion (buck et al, 2007). this has significant implications because “issues of digital exclusion are exacerbated amongst those who are socially excluded” (reboot uk, 2018, p.3). as this article has previously discussed, the digitalisation of the court process is already well under way, but if the end-user has a lack of digital skills and confidence this will only serve to further entrench exclusion from the justice system. it is recognised that increasing digital engagement is paramount to ensuring the successful delivery of online justice. as a result, programmes aimed at developing digital inclusion are increasing, for example, reboot uk worked between march and september 2017 to assist 35 organisations to support excluded people to enhance digital skills and confidence (reboot uk, 2018). the good things foundation[footnoteref:18] is also working to bring together community groups to create the online centres network which will help people who are socially excluded to gain digital literacy skills. for law schools using technology in their interactions with end-users (such as in an online law clinic) it is necessary to consider what guidance and assistance can be offered to facilitate access to the service, for example, are the instructions given on websites or in emails clear and step-by-step? is the provision accessible to those with disabilities (such as a visual impairment)? is there a telephone number for people to call to access it support? can hard copies of guidance be posted out? if online pro bono activities are to provide support for those who are most in need, these are key issues to be considered during both the design and implementation of relevant projects. the experience of the open university’s law clinic suggests that both piloting the provision and liaising with colleagues with specific expertise in accessibility and inclusion can assist in identifying key considerations in this area. it is also vital to obtain feedback from the end-users to ensure that their needs are both listened to and responded to. [18: www.goodthingsfoundation.org. ] confidentiality: complying with legal and ethical duties another key issue which arises when considering the development of online and technologically-enhanced pro bono activities, in particular the provision of individual legal advice or representation in an online setting, is the need to comply with the obligations placed on both students and clinicians in the law school in relation to client confidentiality. this is a challenge already having to be tackled in legal practice, as law firms are increasingly adopting new, more agile technology. practice management systems are becoming cloud based, which has led to a significant rise in the use of mobile technology.[footnoteref:19] cloud computing software facilitates access via the web instead of on individual computers and all data is stored off-site. advantages include the ability to access documents remotely, including via mobile applications, and the option to interact with clients outside of the office. it also provides the functionality for clients to log into the system to access their case. data is encrypted and is backed-up off site. cloud computing, and particularly its ability to facilitate mobile access to data, has the potential to offer significant benefits to both law firms and law clinics, but it is not without risk, primarily in relation to breaches of ethical obligations of competence and confidentiality.[footnoteref:20] data security is a concern with the increased use of tablets and smart phones and the flexibility to work from anywhere. law firms are at risk of the loss or damage of data and this risk is increasing as the internet is being used to process and transmit confidential client data [19: see clio www.goclio.co.uk. clio is an example of a cloud based legal case management software, there are other examples being used by law firms, including amicus cloud, rocket matter, my case etc. law firm practice management software automate, and have a number features including managing correspondence, documents, calendars and time recording. ] [20: see sections 4.1, 4.3, 4.5 of the sra code of conduct (2011), which require effective controls to be put in place to ensure the protection of client confidentiality and the law society of england and wales practice note on cloud computing (2014).] the sra code of conduct (2011), at rule 4.1, states that practitioners (including law clinics) must achieve the outcome of keeping “the affairs of clients confidential unless disclosure is required or permitted by law or the client consents”.[footnoteref:21] ethical obligations arise not only from the code of conduct but also from the statutes which govern data protection and information security[footnoteref:22]. the new general data protection regulations in force from may 2018 impose further obligations on organisations and strengthen individual rights with respect to their personal data, emphasising the need for data controllers and processors to obtain informed consent from individuals, only hold such personal data as is necessary and ensure that information held is both secure and accurate.[footnoteref:23] a significant fine can be imposed for failure to notify a breach and for the breach itself. otey-stringfellow (2012, p.224) argues that this increasing amount of regulation creates an “ethical minefield” for experienced lawyers, but even more so for law students and those about to enter the practice of law who are less familiar with their professional and ethical obligations. [21: chapter 4 confidentiality and disclosure states that protection of confidential information is a fundamental part of the client relationship, it occurs as a matter of law and of conduct. rule 4.5 states you must have appropriate measures in place to identify and mitigate the risks of client confidentiality. the indicative behaviours which accompany the rules state the systems in place need to reflect the size, complexity and the nature of the work involved (sra, 2011). ] [22: in the uk these include the data protection act 1998, the regulation of investigatory powers act 2000 and the computer misuse act 1990.] [23: https://gdpr-info.eu/.] incorporating technology into the pro bono activities offered by clinical legal education programmes gives students the opportunity to be in a real-life situation with clients and deal with confidential information online, thus enabling them to experience and explore the ethical concerns of internet communication. goldfarb (2012) identifies self-development and self-monitoring as being especially valuable skills of clinical legal education, enabling students to learn from experience and apply that to future choices, to help prepare them for a rapidly changing legal landscape. using online and technologically-enhanced pro bono activities are particularly useful in giving students time to think and reflect on their use of technology. this can be achieved if provision is made for students to reflect on the professional demands involved in utilising technology in the clinical setting by incorporating reflective writing into the design and assessment of the clinical experience. there are distinct advantages to introducing technology into the law clinic by, for example, incorporating the use of case management software.[footnoteref:24] using such software provides important preparation for practice and is also a valuable opportunity to address some thorny ethical issues that may arise as a result of its incorporation by providing a greater understanding of its practical use, a greater awareness of the ethical issues likely to arise and experiential learning opportunities to tackle those issues which do actually occur. ethical pitfalls could include law students preparing documents in the case management system and emailing copies to their home computer, risking potential breaches of client confidentiality. other issues could involve students having documents stored on personal computers after they have left the clinic or sold the computer. an understanding of internet security, and how hackers operate, is required to understand the ethics of working from a public wifi spot and how free wifi networks allow hackers to access the network and view the contents of the device. training in the law clinic gives law students the opportunity to identify such ethical and practical issues and learn how to address them. [24: in the usa, kuehn, and santacroce, (2014) found in the 2013-14 survey of applied legal education that case management software in law school clinics is the most common type of technology employed in casework with 58.6% reporting its use, up from 48.5% in the 2010-11 survey and 40.5% in 2007-08.] online and technologically-enhanced pro bono activities certainly pose new challenges for both legal professionals and law students. understanding how and where data is stored, the encryption of data, and the risks that arise when devices that hold data are lost are all issues associated with the use of technology. law students also need to carefully consider the use of social media and think about how to manage an online presence not only for themselves but for their clients, to ensure confidentiality is protected (colvin, 2015; lackey and minta, 2012). more generally, it is also crucial that the clinical legal education curriculum addresses questions of technological professionalism by engaging students in a critical discussion of the potential for technology to revolutionise the legal system and the profession, but also requiring them to analyse, and consider how to respond to, the ethical implications that arise when utilising evolving technologies. by educating law students through and on technology they will be able to support clients with the innovative changes that are happening in the justice system (goodenough et al, 2013). confidence: fostering trust online whilst much of the above discussion has focused on the technological elements of change and evolution that take place within an increasingly digitalized legal system and society, the wider issues involved speak equally to exploration of, and reflection on, the human side of pro bono work, clinical legal education and the legal profession. for students and practitioners to act effectively and ethically in such a world requires them to consider the impact and consequences for the people involved. when providing forms of advice and even representation online, they may be at a distance from their client or other end-user, but that person is still contending with the myriad emotions that can arise from being involved in a legal query or dispute and having to seek legal help and guidance (barkai and fine, 1987). they may present many of the same legal, ethical and practical dilemmas which can arise in face-to-face legal work, alongside which students and practitioners will have to contend with the added pressures of navigating the complexities of the online or technological experience as well (jones et al, 2017). as an example, one way this could be contextualised for students is by exploring some of the rich literature that exists on the subject of trust, and considering how this could be applied within an online law clinic. the sixth mandatory principle given by the sra in their code of conduct (2011) is that practitioners must “behave in a way that maintains the trust the public places in you”. the concept of trust lacks a single, universal definition, but it can be described as involving a certain level of confidence that something, or someone, will behave in a way that meets your expectations of how it, or they, should behave and that this behaviour will be beneficial, or at the very least not harmful, to you (brien, 1998). it plays a crucial role within the legal profession, with webb and nicolson arguing that: we commonly enter into trust relations because of a perceived risk. for example, clients consult lawyers because they have caused accidents, face financial loss from another's breach of contract or because they want to protect their interests in new business ventures. trust therefore acts as a mechanism for attempting to reduce risk or control it at acceptable levels. at the same time, trust relations are also themselves risky, precisely because they require an act of faith in committing oneself to the relationship, and because the greater our trust the more vulnerable we are to being unexpectedly let down, if not betrayed. we thus enter trust relationships on the basis of a generally implicit calculus: both that entering the relationship provides a mechanism for dealing with the particular social risk complained of, and that the offer of trust within the relationship indicates that the trustee is not predisposed to cause harm. (webb and nicolson, 1999, p.150) trust within the legal profession can operate at the level of both individuals and institutions. for example, an individual solicitor may attend networking events, join relevant associations and spend time reassuring their clients during stressful periods to develop relationships of trust between them and their client on an individual level. at the same time, clients will need to feel a level of trust in relevant legal professions, institutions and processes that will be involved in their issue (webb and nicolson, 1999). clients in an online law clinic, or other end-users seeking information on legal topics, are unlikely to know the individual clinicians and law students involved, at least initially. this therefore requires them to place a level of trust in the law school and in the digital technology they are being asked to navigate. there is a large body of work on the issue of trust in relation to online consumer transactions, which suggests the level of trust a consumer has in a vendor and website will significantly influence their decision to purchase online (see, for example, kim et al, 2008). the literature on odr, although less well-developed in relation to trust, also indicates that it has a key part to play in the process (rule and friedberg, 2005). for example, it is likely that issues of trust will arise even prior to the client completing their initial enquiry into an online law clinic. there may be questions over the design of the website, its interfaces and the information provided on it that can significantly influence the client’s initial decision to request assistance (wang and emurian, 2005). thus this echoes the argument made above about the importance of embedding easily accessible guidance and assistance in any such provision. even if the client choses to approach the law clinic, they may still lack trust in the digital technologies involved and be reluctant to provide personal information or give full details of their issue without any face-to-face contact. this could similarly impact in relation to public legal education activities online, where users will also be required to have some form of interaction with the online design and content provided. at an individual level, law students involved with a client will have to consider how they can develop the client’s trust in an environment where they are not meeting face-to-face and the usual bodily and visual cues that assist in developing rapport and trust are likely to be missing (brett et al, 2007). they will have to be aware of the considerable potential for communications to be misconstrued (brett et al, 2007). there will also be important ethical considerations to be tackled around whether simply having a code of ethics is sufficient to create a relationship of trust, how such a relationship can be effectively fostered and how the use of technology can be balanced with the very human issues involved. this provides a practical opportunity for law students to contextualise their theoretical understanding, considering the possible consequences of limiting the discharge of the lawyer’s ethical duty to professional code compliance alone and exploring the utilisation of wider, character-based approaches to legal ethics practice. (arthur et al, 2014, p.10). conclusion technology is impacting increasingly and significantly on the practice of law. in 1994, katsch defined the characteristics of a digital lawyer, stating: … the digital lawyer will be employing a broader range of skills and an outlook that reflects not simply what the new technologies do but the manner in which they do it. (katsch 1994: 1169) susskind (2013, p.xiii) predicts that “the legal world will change more radically over the next two decades than over the last two centuries”. technology is driving change and the practice of law is being revolutionised by the development of online courts and virtual law firms, the uptake of technological innovations such as cloud computing and the internet’s ability to offer legal knowledge. every generation practising law has faced different challenges, but an increasingly digitalised legal system and society poses new and ever more complex dilemmas. at the same time, it also offers exciting new opportunities to generate new forms of online and digitally enhanced pro bono activity and enhance the provision and scope of existing offerings. given these challenges and opportunities, it is ever-more important that clinical legal education programmes engage with these topics and that there is sufficient training to equip law students to address the myriad of issues that being a digital lawyer can encompass. even if some, or most, of these law students do not then go on into legal practice, many of the technical, ethical and practical lessons they absorb will be of relevance within both their professional and personal lives in the future, as society increasingly shifts towards the greater use and integration of technology in every walk of life. these wider legal and societal shifts have implications both for clinicians and law students. benfer et al (2013) states that recognising generational shifts between legal educators and law students is important in thinking about how we educate the millennial generation. for clinicians, this may mean spending time reflecting on how to embed the key pedagogical benefits of clinical legal education within a changing environment, when addressing law students who may be unreceptive to more traditional teaching methods and pedagogies. to prepare law students for the future, the incorporation of digital literacy into the clinical legal education curriculum is essential, but critically, it is not about teaching ‘computer’ skills. instead, as goodenough and lauritsen (2012, n.p.) argue, it is “about gaining an understanding of the way in which technology works and appreciation of the issues that may arise when using technology”, something which online and technologically-enhanced pro bono activities offer through their practical engagement with these theoretical issues. the incorporation of such online and technologically-enhanced pro bono work into clinical legal education programmes can help law students’ use and understand technology, not only to develop the skills they require for the practice of law, but also to actively engage in thinking of new ways technology can be used to support access to justice (giddings, 2013; boske, 2011). the development and provision of online and technologically-enhanced pro bono activities within clinical legal education programmes provides the ideal opportunity to consider the impact that technology is having on both society in general and the practice of law in particular. it gives law students a relatively safe space in which to explore the technological, ethical and practical implications which may arise within the clinical legal education programme itself, but also in their future professional and personal lives as well, particularly if they do become one of the new generation of digital lawyers. this exploration may arise through students tackling specific issues that occur during their work online, such as queries in relation to the use of social media and the guarding of client privacy. it may also be via their consideration of broader digital issues, for example, around the use of crowd funding of court cases and the role of trust in online legal transactions. of course, a number of these issues could be explored within more traditional clinical legal education settings, but discussing them via the use of, and in the context of, online and technologically-enhanced pro bono activities arguably offers law students richer contemporary opportunities for experiential learning and reflection both in and on action (kemp et al, 2016; kolb, 2014; schön, 1991). each generation encompasses a different perspective and outlook on the world, which shapes their attributes and traits, and characterises their behaviours. clinical legal education’s reflective pedagogy, insights into social justice and contextualisation of legal issues are all traditional benefits in terms of its use within the educational and professional development of law students. as clinicians, we now have a responsibility to apply these values to our pro bono work within the online setting in a way which allows law students to experience, reflect on and discuss the potential and pitfalls of digital lawyering and that will equip them for a potential future in a changing profession. this requires clinical legal education programmes to consider the use of online and technologically-enhanced pro bono activities and to explore topics such as network security, cloud computing, encryption, security, wireless networks and data protection. however, they also need to embed a consideration of ethics into these topics to assist the ethical formation of law students by developing their understanding of their ethical obligations and the ethical issues involved. particular topics for further research, to facilitate the adaptation and development of online and technologically-enhanced pro bono activities, include the extent to which technology is, or may be, a barrier towards effective experiential learning for some students, the impact of technology on the client experience in an online law clinic setting and the most effective methods to foster online reflective practices by law students. it will also be fascinating to trace how students’ conceptions of issues such as confidentiality, privacy and trust are influenced by the digital environment. overall, the development of online and technologically-enhanced pro bono activities offers both challenges to, but also opportunities for, engagement with pro bono activities and the wider teaching of both clinical legal education, as law follows society as a whole into the dawning of a brave, new, digital world. references allbon, e. 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(2005) “a trust-based consumer decision-making model in electronic commerce”, computers in human behavior, vol.21(1), pp.105–125. 48 reviewed articles – teaching and learning in clinic promoting gender justice within the clinical curriculum: evaluating student participation in the 16 days of activism against gender-based violence campaign kayliegh richardson and ana kate speed, northumbria university, uk abstract the 16 days of activism against gender-based violence is an international campaign which runs annually from 25 november (the international day for the elimination of violence against women) to 10 december (human rights day)[footnoteref:1]. the campaign aims to raise awareness of and stimulate action to end violence against women and girls globally. the issue of gender violence has gained worldwide prominence in the last few decades with the emergence of legislative frameworks including the convention on the elimination of all forms of discrimination against women and the istanbul convention[footnoteref:2]. more recently, there has been a policy focus on education as a tool for raising awareness of gender-based violence. the recent public unrest regarding sexual harassment, epitomised by the ‘#me too’[footnoteref:3] and ‘times up’[footnoteref:4] movements, demonstrate that gender-based violence remains an everyday reality for many women and girls. in england and wales, there has been an increase in applications to the family court for domestic abuse protection,[footnoteref:5] however this has come at a time where cuts to the availability of legal aid have led to concerns about the ability of survivors to seek access to justice[footnoteref:6]. [1: kayielgh richardson and ana speed are senior lecturers and solicitor tutors in the student law office at northumbria university school of law. more information about the 16 days campaign can be found at the website: http://www.unwomen.org/en/what-we-do/ending-violence-against-women/take-action/16-days-of-activism] [2: fully referred to as the council of europe convention on preventing and combating violence against women and domestic violence (council of europe treaty series number 210)] [3: see more about the movement at: https://metoomvmt.org ] [4: see more about the movement at: https://www.timesupnow.com ] [5: ministry of justice and national statistics (29 march 2018) family court statistics quarterly: october – december 2017. ] [6: see, for example, amnesty international uk (october 2016) ‘cuts that hurt: the impact of legal aid cuts in england on access to justice’ (www.amnesty.org.uk/cutsthathurt) and the law society of england and wales (june 2017) ‘access denied? laspo four years on: law society review’ (www.lawsociety.org.uk)] during the 2017-2018 academic year the authors designed and delivered a range of teaching activities for clinical students as part of the 16 days of activism against gender-based violence campaign. the aims were to increase student engagement with issues of gender justice and develop their understanding of the different forms of gender violence, the domestic and international frameworks for protecting victims and the roles that different organisations play in achieving this. it was hoped that this would better prepare students for the realities of family practice in england and wales. surveys and a semi-structured interview were used to gain insights into the student experience of participating in the campaign. this article will address how their participation went some way to meeting the objectives set out above in that students demonstrated increased knowledge of civil and criminal law relating to gender-based violence, developed their critical lawyering skills and competency in working with vulnerable clients and contributed to wider efforts to advance gender justice. further the article will draw on the ancillary advantages of participating in the campaign, including improved client outcomes and reputational benefit. the limitations of the 16 days campaign will also be acknowledged along with ideas for developing the programme in the future. introduction gender-based violence (gbv) can be defined as “any interpersonal, organisational, or politically oriented violation perpetrated against people due to their gender identity, sexual orientation, or location in the hierarchy of male-dominated social systems”[footnoteref:7]. within international law, it is regarded as encompassing “all acts of violence which may result in physical, sexual, psychological or economic harm or suffering… such as coercion or arbitrary deprivation of liberty, whether occurring in public or private life”[footnoteref:8]. gbv is often synonymous with ‘violence against women’ because acts such as human trafficking, domestic servitude, forced marriage, female genital mutilation, sexual exploitation and harassment are disproportionately perpetrated against women[footnoteref:9]. gbv is viewed as an expression of gender inequality and a human rights infringement because it often stems from and reflects structural power inequalities which discriminate against women[footnoteref:10]. [7: o’toole, l. schiffman, j. edwards, m. (2007) gender violence: interdisciplinary perspectives. new york: new york university press] [8: see article 3a, council of europe convention on preventing and combating violence against women and domestic violence (the istanbul convention)] [9: the european institute for gender inequality’ (2015) “strategic framework on violence against women 2015-2018” luxembourg: publications office of the european union.] [10: see the european institute for gender inequality (2014) “estimating the costs of gender-based violence in the european union” luxembourg: publications office of the european union.] this article will examine how the elimination of gbv is increasingly recognised as a priority for the international community. in part, this has arisen organically through a series of grassroots social media campaigns following the allegations of sexual abuse against harvey weinstein and other male celebrities[footnoteref:11]. however, there are also legal frameworks which require states to pursue a policy of eliminating discrimination against women and put in place measures to protect women from domestic violence and unequal treatment[footnoteref:12]. [11: see, for example, the ‘me too’ and ‘time’s up’ movements at https://www.timesupnow.com and https://metoomvmt.org] [12: see article 2 of the convention on the elimination of all forms of discrimination against women and general recommendation no 19 of the cedaw committee on violence against women.] in particular, there is a new legislative and policy focus on educating the general public through awareness raising campaigns as a means to challenge understandings of gender norms, gender stereotypes and to promote a better understanding of legal rights and responsibilities with regards to gbv. this arguably reflects the current climate of austerity in which the government are keen to reduce the economic cost of gbv and comply with their international obligations in the most cost effective manner[footnoteref:13]. further, the focus on public legal education is revealing at a time when many victims are struggling to enforce their rights and seek justice through the legal system as a result of the cuts to legal aid implemented by the legal aid, sentencing and punishment of offenders act 2012 (laspo). [13: domestic violence alone costs the uk economy £16 billion per annum – as reported in siddiqui, h (2018) ‘counting the cost: bme women and gender-based violence in the uk’. ippr progressive review volume 24 issue 4. pp 362 -368.] alongside public legal education the demand for legal services from law school based clinics demonstrates they make an important contribution to facilitating access to justice in areas where public funding is no longer available and for those clients where paying privately for advice is not feasible. this is particularly important in the context of gbv where women (and in particular black, asian and minority ethnic (bame)) women face multiple disadvantages. not only are they more likely to be victims of gbv but they have been disproportionately affected by the legal aid cuts and are therefore more likely to require the assistance of law school clinics[footnoteref:14]. this is reflected in statistics which report that in the year ending april 2017, 58% of clinic users were women and 48% were from bame communities[footnoteref:15]. whilst there are no figures directly relating to gbv, 67% of clinics reported seeing an increase in the number of clients in crisis or distress[footnoteref:16]. it is possible these figures may include victims of domestic abuse on the basis that over a quarter of the work carried out by clinics relates to family law[footnoteref:17]. this would reflect the authors’ own experiences where there has been a considerable increase in the number of domestic abuse survivors making enquiries at their clinic. further, the authors have been contacted by three domestic violence organisations over the last year who have wished to establish links with the clinic. they have sought advice on behalf of their service users and legal training for their volunteers. there is evidence that clinics in the usa are engaging with work relating to gbv[footnoteref:18] however to date, there has been no evidence that this is being replicated in the united kingdom. [14: sandhu, k. stephenson, m.a. (2015) ‘open space layers of inequality – a human rights and equality impact assessment of the public spending cuts on black, asian and minority ethnic women in coventry’. feminist review volume 109. pp 169-179.] [15: lawworks clinic network report april 2016 – march 2017 (december 2017) ‘analysis of pro bono legal advice work being done across the lawworks clinic network between april 2016 and march 2017’. published by lawworks. ] [16: lawworks clinic network report april 2016 – march 2017 (december 2017) ‘analysis of pro bono legal advice work being done across the lawworks clinic network between april 2016 and march 2017’. published by lawworks. ] [17: lawworks clinic network report april 2016 – march 2017 (december 2017) ‘analysis of pro bono legal advice work being done across the lawworks clinic network between april 2016 and march 2017’. published by lawworks. ] [18: at the university of chicago law school students can elect to take part in the gendered violence and the law clinic. the clinic aims to increase students’ understanding of the civil and criminal systems that address gbv through field work complemented by a weekly seminar which addresses cases on domestic violence, sexual assault and child protection issues (see https://www.law.uchicago.edu/clinics/genderedviolence). the university of buffalo also has a family violence and women’s rights clinic. students have the opportunity to work on projects which impact the local community, including the preparation of self-help leaflets for survivors and the provision of community legal education for domestic abuse service providers. the clinic has also worked with advocacy groups to support domestic violence legislative reform (see http://www.law.buffalo.edu/beyond/clinics/domestic-violence.html). ] against the backdrop of unmet legal need, new domestic laws in relation to gbv and a policy focus on awareness raising, the authors, who are clinical supervisors at a full representation law clinic at northumbria university, identified a critical need to incorporate training about gbv within the family law clinical curriculum. this was achieved through accepting instructions on client cases relating to gbv and setting up a referral system for enquiries with a local domestic abuse organisation for those clients who were unable to secure alternative funding. further, the authors established a drop-in clinic (empower 4 justice) with a local bame women’s organisation. empower 4 justice is an interdisciplinary project which allows bame women to receive one-off legal advice alongside independent domestic violence advocate (idva) services. the project was conceived out of the idea that bame women often experience culturally specific forms of abuse, multiple barriers to reporting and difficulties accessing advice because of a shame culture, immigration insecurities and a lack of awareness of their rights. alongside these projects, the authors felt it was appropriate to supplement the students’ case work with an overarching teaching programme about gbv. this was because many of the students’ cases related to a single issue and this prevented the students developing a breadth of understanding that would allow them to put their learning experiences in a wider context. in order to achieve this, the authors decided to participate in the 16 days of activism against gender-based violence (16 days campaign). the 16 days campaign takes place annually between 25 november (the international day for the elimination of violence against women) to 10 december (human rights day) and aims to raise awareness of and stimulate action to end violence against women and girls globally. the dates of the campaign are intended to highlight that the act of perpetrating gender violence is a human rights violation[footnoteref:19]. it was felt that the 16 days campaign was an appropriate cultural fit due to its interdisciplinary focus, international reach and emphasis on building local alliances. it was also an academic fit for law students because of its focus on advocacy and policy development. whilst participants were invited to use a 16 days toolkit[footnoteref:20] this was not compulsory and the authors retained full discretion about the topics covered and style of teaching activities. further, as time is a premium within the clinic, the 16 days campaign did not take too much time out of an otherwise busy clinic curriculum. [19: the 16 days campaign was first run in 1991 by the women’s global leadership institute coordinated by the centre for women’s global leadership. since then, it is estimated that over 2,800 organisations from approximately 156 countries have taken part. more information about the campaign can be found at http://16dayscwgl.rutgers.edu/.] [20: the 16 days toolkit can be accessed at the centre for women’s global leadership. rutgers school of arts and sciences (https://www.sas.rutgers.edu/cms/16days/images/16dayscwgl/2017_16_days_of_activism_against_gender-based_violence_action_kit_complete_september_28_2017.pdf).] the authors’ main objectives in participating in the campaign were to: a) increase student engagement with issues of gender justice; and b) develop an effective educational tool for raising student understanding of the different forms of gender violence, the domestic and international framework for protecting victims and the roles that different organisations play in achieving this. if these aims were met, it was felt that we would realise the overall aim of; c) better preparing the students for the realities of family practice in england and wales. following completion of the 16 days campaign, the students were asked to participate in a focus group or complete a questionnaire about their experiences. the authors are not aware of any similar studies which have been conducted about the effectiveness of gbv awareness raising programmes in higher education students or within clinical legal education. there are however a number of studies regarding gender justice programmes which have been conducted with middle and high school students[footnoteref:21].. these studies have focussed on improving student knowledge of domestic abuse and healthy relationships and preventing teen dating violence. these studies differ from ours in that they often do not deal with issues of gbv which occur outside an intimate partner relationship. in the authors’ view, many of these studies fail to recognise wider issues of family violence such as forced marriage, female genital mutilation and honour violence. further, whilst it was an aim of this programme to improve the students’ knowledge, the authors did not intend to change the students’ behaviour in their own personal relationships. the majority of the studies in this area have been carried out in america and the authors are not aware of any studies which have taken place in the united kingdom. [21: a helpful summary of this literature is provided in malhotra, k. gonzales-guarda, r. mitchell, e (2015) ‘a review of teen dating violence prevention research: what about hispanic youth?’ trauma, violence and abuse volume 16, issue 4. pp. 444-465. sage publications. further studies are discussed later in this article.] this article will discuss the teaching materials that were designed and will present the students’ experiences of participating in the campaign. it will address how their participation went some way to meeting the objectives set out above in that the students demonstrated increased knowledge of civil and criminal laws relating to gbv, developed their critical lawyering skills and competency in working with vulnerable clients and contributed to wider efforts to advance gender justice. further, the article will draw on the ancillary advantages of participating in the campaign, including improved client outcomes and reputational benefit. the limitations of the 16 days campaign will also be acknowledged along with ideas for developing the programme in the future. scoping the problem gbv in england and wales the legal and political significance of gbv has gained momentum in recent years. on an international level this can be evidenced through the sustainable development goals which vowed to achieve gender equality and empower all women and girls by 2030[footnoteref:22]. the targets to achieve this goal include eliminating all forms of violence against women and girls in the public and private sphere including trafficking, sexual and other types of exploitation and eliminating harmful practices such as child and forced marriage and female genital mutilation. likewise, the united nations and the council of europe have developed international instruments to provide legal frameworks for ending gbv. an example of this is the convention on the elimination of all forms of discrimination against women which was adopted in 1979 and requires signatory states to implement measures to abolish discriminatory laws, establish public institutions to ensure the effective protection of women against discrimination and the elimination of all acts of discrimination by persons and organisations. more recently, the istanbul convention obliges signatories to develop a comprehensive legal framework and approach to combat violence against women, through preventing violence, protecting victims and prosecuting perpetrators. the uk government is a signatory to both conventions but is yet to take steps to ratify the istanbul convention. providing a comprehensive legal framework is important for providing protection and access to support services for victims and acting as a deterrent to perpetrators[footnoteref:23]. [22: see the united nations sustainable development goals ‘gender equality and women's empowerment’ available at: http://www.un.org/sustainabledevelopment/gender-equality/ ] [23: klugman, j (2017) ‘background paper for world development report 2017 ‘gender based violence and the law’ georgetown university. available at: http://pubdocs.worldbank.org/en/232551485539744935/wdr17-bp-gender-based-violence-and-the-law.pdf ] at a domestic level, there has been growing recognition of the different forms that gbv takes. this is evidenced through the introduction of the modern slavery act 2015 which seeks to protect victims of human trafficking. in the same year, the serious crime act 2015 came into force, criminalising coercive and controlling behaviour. there have also been considerable developments in relation to forced marriage. in 2005, the foreign and commonwealth office and home office launched the forced marriage unit (fmu) to lead on the government’s forced marriage policy and casework. in the last year, the fmu gave advice or support in relation to a possible forced marriage in 1,196 cases[footnoteref:24]. in 2014, it became a criminal offence to force a person to marry, under the anti-social behaviour, crime and policing act 2014. the government also introduced forced marriage protection orders as a civil remedy to protect someone who is facing being forced into a marriage or who is in a forced marriage[footnoteref:25]. these provisions have been met with some success in tackling violence against women. over the last year, 247 forced marriage protection orders have been granted (in all cases the applicants were women)[footnoteref:26] and two convictions for forced marriage have taken place[footnoteref:27]. [24: home office and foreign and commonwealth office (16 march 2018) ‘forced marriage unit statistics 2017’. home office publications. ] [25: see the forced marriage (civil protection) act 2007. ] [26: ministry of justice and national statistics (2018) ‘family court statistics quarterly: annual 2017 including october to december 2017’ published by the ministry of justice. ] [27: see http://www.familylawweek.co.uk/site.aspx?i=ed190141] whilst gbv may be encountered in many legal practice areas, it has particularly close links with family and criminal law because these areas regulate the most prevalent forms of gbv intimate partner violence and domestic abuse. in the year ending march 2017, an estimated 1.9 million adults in england and wales experienced domestic abuse[footnoteref:28]. in the same year, the crime survey for england and wales reported that 26% of women and 15% of men had experienced some form of domestic abuse since the age of 16 – equivalent to 4.3 million female victims and 2.4 million male victims[footnoteref:29]. there continues to be an upward trend in applications for domestic violence remedy orders (e.g. non-molestation orders and occupation orders) in england and wales[footnoteref:30]. in 2017, there were 24,912 such applications, representing an increase of 5% in the year ending december 2017. of course, this does not reflect the full reality of the situation as domestic violence is a vastly underreported area. [28: office of national statistics (november 2017) ‘domestic abuse in england and wales: year ending march 2017. statistical bulletin’. published by the office of national statistics. ] [29: office of national statistics (november 2017) ‘domestic abuse in england and wales: year ending march 2017. statistical bulletin’. published by the office of national statistics. ] [30: ministry of justice and national statistics (29 march 2018) ‘family court statistics quarterly: october – december 2017’. published by the ministry of justice. ] however, whilst on the one hand the government has demonstrated a commitment to conferring rights on women and girls by becoming signatories to cedaw and the istanbul convention, they have simultaneously made cuts to the funding which allows victims to enforce these rights. laspo came into effect on 1 april 2013 and removed large parts of family law from the scope of public funding and removed completely funding for civil claims for compensation[footnoteref:31]. funding remains available for victims of domestic abuse in family law proceedings, however in practice many victims are ineligible because they cannot provide the requisite gateway evidence and/or satisfy the strict means test. this has led to an increase in domestic abuse survivors representing themselves in court proceedings[footnoteref:32]. this situation is indefensible because despite promises from the government, there are no legal prohibitions on unrepresented defendants cross-examining their alleged victims and no firm plans to introduce this[footnoteref:33]. court proceedings can therefore be a forum for perpetrators to exercise further control over their victims[footnoteref:34]. [31: in the context of gbv this is important because victims can pursue civil claims for compensation against perpetrators in respect of injuries suffered. exceptional case funding (ecf) remains available for categories of law which do not ordinarily attract public funding but where a failure to provide legal services would be in breach of an individual’s rights under the human rights act 1998. however, research suggests that there have been fewer than expected applications for funding. the government estimated there would be between 5,000 – 7,000 applications for ecf per annum, however in 2013/2014 only 1,516 applications were made, of which around 50% were granted. statistics reported in: the law society of england and wales (june 2017) ‘access denied? laspo four years on: law society review’ published by the law society. ] [32: statistics indicate that in 2017 neither party had legal representation in 35% of cases in front of the family courts. reported in the ministry of justice and national statistics (29 march 2018) ‘family court statistics quarterly: october – december 2017’ published by the ministry of justice. ] [33: this issue has been raised in the hm government consultation (2018) ‘transforming the approach to domestic abuse’. the consultation document acknowledges that unlike the criminal courts, the family courts do not have a specific power to prevent cross-examination of a victim by an alleged perpetrator. the consultation goes on to state ‘the government is committed to addressing this issue and will legislate to give family courts the power to stop this practice as soon as legislative time allows’ (p. 52) however no definitive time frame has been indicated.] [34: richardson, k. & speed, a (2019) ‘restrictions on legal aid in family law cases in england and wales: creating a necessary barrier to public funding or simply increasing the burden on the family courts?’. journal of social welfare and family law volume 41 issue 2 pp.135-152 doi: 10.1080/09649069.2019.1590898.] a review of existing literature – gbv in education there have been attempts to raise public awareness of gbv through formal and informal channels of education. to some extent, this has happened organically following the allegations of sexual misconduct against harvey weinstein and other male celebrities, which have led to grassroots social media campaigns such as “#me too” and “time’s up” and which aim to demonstrate the worldwide prevalence of sexual assault and harassment[footnoteref:35]. changing and challenging attitudes towards gbv through education however is also a key focus of gbv legislation. this shift towards prevention and education about legal rights and responsibilities is arguably reflective of the current climate of austerity in which the government are keen to reduce the economic cost of gbv and comply with their legal obligations in the most cost effective manner[footnoteref:36]. further, the focus on public legal education is revealing at a time when many victims are struggling to enforce their rights and seek justice through the legal system as a result of the cuts to legal aid implemented by laspo. article 12 of the istanbul convention, for example, obliges states to promote changes in the social and cultural patterns of behaviour of women and men with a view to eradicating prejudices, customs, traditions and other practices which are based on the inferiority of women. it is expected this will be achieved through article 13 which requires signatories to “promote or conduct on a regular basis awareness raising campaigns or programmes… to increase awareness and understanding among the general public of the different manifestations of all forms of violence covered by the convention, their consequences on children and the need to prevent such violence”. further, under article 14, parties must “include teaching material on issues such as equality between women and men, non-stereotyped gender roles, mutual respect, non-violent conflict resolution in interpersonal relationships, gender-based violence against women and the right to personal integrity… in formal curricula and at all levels of education”. [35: it is reported that within 24 hours of the ‘me too’ hashtag going viral, there were more than 12 million posts, comments and reactions by 4.7 million internet users around the world. reported at: https://www.cbsnews.com/news/metoo-reaches-85-countries-with-1-7-million-tweets/.] [36: domestic violence alone costs the uk economy £16 billion per annum. reported in siddiqui, h (2018) counting the cost: bme women and gender-based violence in the uk. ippr progressive review volume 24 issue 4. pp 362 -368.] the need for early education has been emphasised in the global ‘think equal’ initiative, which calls for governments across the world to embed “social and emotional learning” into their curriculums at an early stage (from 3 years old) in order to “end the discriminatory mind set and cycle of violence across our world”.[footnoteref:37] so far 147 schools across 15 countries (including the united kingdom) are piloting the think equal educational programme.[footnoteref:38] the outcome of that pilot study is currently being evaluated. [37: http://www.thinkequal.com/] [38: http://www.thinkequal.com/where-we-work/] in march 2018, the government launched a consultation on ‘transforming the response to domestic violence’[footnoteref:39] in respect of the domestic violence and abuse bill, which (together with the preventing and combating violence against women and domestic violence (ratification of convention) act 2017) will enable ratification of the istanbul convention into domestic law. one of the four key themes of the consultation is ‘promoting public and professional awareness’ of gbv. in order to ensure that domestic abuse is properly understood, the consultation proposes introducing a statutory definition of domestic abuse which will include economic abuse and controlling and coercive behaviour. in addition, it is intended that funding will be provided for all schools to deliver relationships education, relationships and sex education (rse) and personal, social, health and economic (pshe) education so that young adults leave school with the knowledge to prepare them for adult life. the children and social work act 2017 places a duty on the secretary of state for education to introduce ‘relationship education’ at all schools in england. crucially, most of our students are between 21 and 22 years old and therefore are unlikely to have received any education around domestic abuse in their formative educational years. they have therefore not benefited from the changes that are currently being implemented into primary and secondary education. [39: hm government (2018) ‘transforming the response to domestic abuse – government consultation’. available at: https://consult.justice.gov.uk/homeoffice-moj/domestic-abuse-consultation/supporting_documents/transforming%20the%20response%20to%20domestic%20abuse.pdf] the implication in the istanbul convention and the domestic abuse consultation is that improved knowledge and awareness will have a positive effect on reducing domestic abuse perpetration and will lead to more competent practitioners in this field. this because knowledge is typically regarded as a precursor to attitudinal and/or behaviour change[footnoteref:40].whether this is in fact accurate has been the subject of many academic studies. the majority of studies in this area have been conducted with middle and high school students in the usa and have focussed on improving student knowledge of domestic abuse and healthy relationships and preventing youth violence within relationships. whilst gbv is taught within university clinics, the authors are not aware of any such studies which have been conducted about the effectiveness of gbv awareness raising programmes in higher education students or within clinical legal education. further, these studies often do not deal with issues of gbv which occur outside an intimate partner relationship and therefore fail to capture the full scope of family violence. these studies are motivated by a desire to change youth behaviour within personal relationships rather than in a professional capacity. the findings suggest that such programmes have varying levels of success – a factor which may be attributable to the different teaching activities, format of the programmes and the time dedicated to teaching these issues. a comprehensive analysis of studies in this area has been prepared by malhotra et al[footnoteref:41] however for the purposes of this article, only those studies which focussed on developing students’ knowledge and understanding of legal frameworks around domestic abuse/gbv have been considered. [40: salazar, l. cook, a (2006) ‘preliminary findings from an outcome evaluation of an intimate partner violence preventing program for adjudicated, african american, adolescent males’ journal of youth violence and juvenile justice volume 4, issue 4, pp. 386-385. ] [41: malhotra, k. gonzales-guarda, r. mitchell, e (2015) ‘a review of teen dating violence prevention research: what about hispanic youth?’ trauma, violence and abuse volume 16, issue 4. pp. 444-465. sage publications.] producing change in knowledge following an educational intervention has been well documented in studies[footnoteref:42]. jaycox et al[footnoteref:43] for example, delivered a three-class programme over three hours to educate students aged 13-14 years old about domestic violence, healthy relationships and legal rights. the intervention group showed increased knowledge of the laws relating to domestic abuse and increased likelihood of seeking help (in particular from a lawyer specialising in domestic abuse) compared to a control group. however, the position on whether knowledge directly results in attitudinal or behavioural change is less clear. salazar et al, for example, conducted five 2-hour sessions on intimate partner violence with predominantly african american males aged between 12 and 18 with the aim of developing the students’ awareness of violence against women, personal choice, and connecting violence against women to violence against ethnic minorities and the lesbian and gay community[footnoteref:44]. whilst the participants reported higher levels of knowledge of intimate partner violence, only those who had witnessed high levels of parental violence demonstrated lower patriarchal attitudes than the control group. similar findings were reported by lowe et al[footnoteref:45] whose study comprised four one-hour sessions on assault, coercion, victims’ rights, legal information and healthy relationships. lowe found that the students demonstrated a statistically significant increase in knowledge after the programme but there was no real effect on attitudes towards dating violence. [42: see foshee, v. a. bauman, k. e. arriga, x. b. helms, r. w. koch, g. g & linder, g. f. (1998) ‘an evaluation of safe dates, an adolescent dating violence prevention program’ american journal of public health volume 88. pp 45-50 and lavoie, f. vezina, l. piche, c. & boivin, m. (1995) ‘evaluation of a prevention program for violence in teen dating relationships’ journal of interpersonal violence volume 10. pp 516-524. macgowan, m. j. (1997) ‘an evaluation of a dating violence prevention program for middle school students’ journal of violence and victims volume 12. pp 223-235. ] [43: jaycox, l.h. mccaffrey, d. eiseman, b. aronoff, j. shelley, g.a. collins, r.l. marshall, g.n. (2006) ‘impact of a school-based dating violence prevention program among latino teens: randomised controlled effectiveness trial’ journal of adolescent health, volume 39 issue 5 pp. 694-704.] [44: salazar, l. cook, a (2006) ‘preliminary findings from an outcome evaluation of an intimate partner violence preventing program for adjudicated, african american, adolescent males’ journal of youth violence and juvenile justice volume 4, issue 4, pp. 386-385. ] [45: lowe, l. jones, c.d. banks, l (2007) ‘preventing dating violence in public schools: an evaluation of an interagency collaborative program for youth’ journal of school violence, volume 6 issue 3. pp. 69-87] another study which led to increased knowledge (but not necessarily behavioural change) was carried out by taylor et al [footnoteref:46]. the researchers examined the effect of a teaching programme on student attitudes and knowledge of gbv and assessed whether participation reduced the probability of perpetration and/or victimisation. the study involved 123 sixth and seventh grade classrooms being randomly assigned to one of two five-session curriculum addressing gbv and sexual harassment or to a no-treatment control group. the first curriculum was ‘interaction-based’ which focussed on setting and communicating boundaries in relationships, the formation of relationships, wanted/unwanted behaviours and the role of the bystander as intervener. the lessons in this curriculum did not provide simple answers but required the students to engage with ambiguity. in contrast, the ‘law and justice’ curriculum focused on laws, definitions, information, data about penalties and the consequences for perpetrators of gbv. students in the law and justice curriculum, compared to the control group (which received no training on gbv), had significantly improved outcomes in awareness of their abusive behaviours, attitudes towards gbv and knowledge. the knowledge gained was not long-lasting for all the groups however. those in the interaction-based group demonstrated a similar level of knowledge as the control group after a six-month period. students in the interaction-based curriculum experienced lower rates of victimisation, increased awareness of abusive behaviours, and improved attitudes toward personal space. interestingly, students in both treatment groups were more likely to have committed violence against people they had dated. the researchers believed that the interventions affected the students’ sensitivity to the problem of gbv, and it made it more likely for them to identify and report certain behaviours as gbv. [46: taylor, b. stein, n. burden, f (2010) ‘the effects of gender violence/harassment prevention programming in middle schools: a randomised experimental evaluation’ violence and victims journal volume 25 number 2. pp. 202-223.] in a second study, taylor et al ran an intervention programme in public middle schools in new york city[footnoteref:47]. students were allocated to a ‘classroom-based intervention’, a ‘building based intervention’, a mixed building and classroom intervention group or a control group. the classroom-based intervention consisted of six sessions over a ten-week period and covered consequences of domestic abuse for perpetrators, laws relating to domestic abuse, the social construction of gender roles and healthy relationships. the building-based intervention included temporary building-based restraining orders, posters in school buildings to increase awareness and reporting of domestic abuse and higher levels of security presence in safe/unsafe ‘hotspots’ mapped by students. the results indicate that there was no significant difference between groups on the prevalence of sexual harassment perpetration. contrary to expectations, prevalence of sexual harassment victimisation was significantly higher in the building only group, compared to the control group. [47: taylor, b.g. stein, n.d. mumford, e.a. and woods, d (2013) ‘shifting boundaries: an experimental evaluation of a dating violence prevention program in middle schools’ journal of prevention science. volume 14 issue 1. pp 64-76.] some studies have reported an increase in prejudicial attitudes and behaviours following participation in gender justice programmes. for example, jaffe found an increase in sexist attitudes among a minority of the males who participated[footnoteref:48]. it was felt this could have arisen from a feeling of male defensiveness as females were present in the teaching sessions but the content related solely to male-to-female abuse. edwards et al[footnoteref:49] also found that whilst the majority of the programmes had a moderate positive effect, 25% of the eight studies they analysed lead to a deterioration in the students’ attitudes. these students appeared to be more supportive of dating violence after participating in the programme. this is also referred to as ‘backlash effect’[footnoteref:50]. however, there have also been criticism of those programmes which have adopted a ‘gender neutral approach’ and failed to recognise that gbv disproportionately affects women[footnoteref:51]. [48: jaffe, p.g. sudermann, m. reitzel, d. killip, s.m (1992) an evaluation of secondary school primary prevention program on violence in intimate relationships. violence vict 1992 summer: 7(2) pp.129-26.] [49: edwards, a. hinsz, v (2014) a meta-analysis of empirically tested school-based dating violence prevention programs. sage open april-june 2014 1-8. ] [50: salazar, l. cook, a (2006) preliminary findings from an outcome evaluation of an intimate partner violence preventing program for adjudicated, african american, adolescent males. journal of youth violence and juvenile justice volume 4, issue 4, pp. 386-385. academy of criminal justice sciences.] [51: ibid] negative effects can also stem from poor programme design, including sessions that are not engaging or effective, and adopting a ‘one size fits all’ approach which is not sufficiently tailored to the audiences they address. this was identified by salazar who noted that many studies lack cultural competency and do not address culturally specific forms of abuse[footnoteref:52]. [52: ibid] the study in order to try and meet the aims outlined above, the authors asked clinical students to take part in a number of activities centred around gbv. those activities were compulsory for the 18 final year masters in law exempting degree (m law)[footnoteref:53] students who chose to undertake family law casework in the student law office. however, all other final year students on the mlaw (solicitors route) degree programme at northumbria university were invited to take part on a voluntary basis. only three additional students chose to take part. as such, a total of 21 students participated in the programme. 19 of these students were female and 2 were male. the activities organised were as follows: [53: the mlaw programme is an integrated master’s which meets the requirements of a qualifying law degree, and incorporates the knowledge and professional skills needed to succeed as a solicitor (m law exempting) or barrister (m law exempting (bar professional training course)).] a) a documentary screening of “banaz: a love story”. the documentary chronicles the life and death of banaz mahmod, a young british kurdish woman killed in a so-called ‘honour’ killing. following the screening, the students took part in a discussion about the issues raised in the documentary. b) a workshop on gbv and online abuse ran by an academic whose research focusses on the online abuse of feminists as a form of violence against women and girls[footnoteref:54]. [54: lewis, r. rowe, m and wiper, c (2017) ‘online abuse of feminists as an emerging form of violence against women and girls’. british journal of criminology, 57 (6). pp. 1462-1481. ] c) a workshop on the domestic and international frameworks for protecting victims of domestic abuse. d) a seminar by a domestic violence organisation which focussed on identifying domestic abuse, the services offered by independent domestic violence advocates and the role that different organisations play in supporting survivors. e) the authors established a family law blog called “a family affair”[footnoteref:55] and all students were asked to submit a blog article on the subject of gbv. students were able to pick their own topics, which ranged from sexual harassment in the workplace through to rape as an act of genocide. [55: the blog can be accessed at https://afamilyaffairsite.wordpress.com/] in addition to these compulsory activities, the authors also ran a voluntary poster competition during the 16 days campaign in which all students were invited to submit a poster considering the different forms of gbv or proposals for ending violence against women. five students submitted posters to the competition. the posters were displayed at northumbria university’s festival of feminism in february 2018. the students took part in these activities alongside their case work in the student law office and additional one off advice provided through the empower 4 justice project. methodology the authors adopted a mixed-methods approach for this research, using a semi-structured interview and electronic questionnaires. ethical approval was provided for this by northumbria university. the initial approach was to only use focus groups with a mix of closed and open ended questions. all students who participated in at least one of the activities as part of the campaign were emailed inviting them to attend the focus groups to provide their views on their participation. 21 students were therefore emailed to participate. participation was anonymous and the focus groups were to be conducted by a third party experienced researcher. this was important as the authors were also the academics who were responsible for marking the students on their clinical work. it was therefore important to avoid students perceiving the research as impacting on their clinic mark or distorting their opinions to please the researchers. unfortunately, due to the focus groups taking place at a busy time during the students’ studies, one participant volunteered to take part in the focus group. the focus group therefore took the format of a semi-structured interview instead. there were specific points for discussion but the idea was that the interview would be conversational in order to obtain the student’s general views on participating in the campaign. the interview was audio-recorded and transcribed by a research assistant. to maintain anonymity, the transcription, but not the audio recording, was provided to the authors. the low response rate meant that the data gathered from the focus group could not in any way be reflective of the overall view of the participants more generally. a number of students did however indicate to the third-party researcher that they would like to give feedback on the campaign in a different method. to increase the response rate and provide more reliable data, the decision was therefore made to adopt a mixed approach using a combination of the feedback already gathered from the interview, together with additional electronic questionnaires. electronic questionnaires were emailed to all the students who participated in at least one of the campaign activities. information was provided to the students about the aims of the research and they were asked to email their completed questionnaires, together with a signed consent form, to the same third-party researcher who had conducted the semi-structured interview. this again maintained appropriate anonymity for the respondents. in addition to the student who had already provided their views in an interview, four other students provided responses to the questionnaire. from a sample of 21 students, a response was therefore received from 5 students, providing an improved response rate of 24%. whilst this is not a particularly high response rate, research conducted by fosnacht et al into the importance of high response rates for college surveys indicates that a response rate of 20 to 25 percent in a survey of higher education users with a small sampling frame should provide reliable results[footnoteref:56]. [56: fosnacht, k. sarraf, s. howe, e and peck, l.k (2017) ‘how important are high response rates for college surveys?’ the review of higher education, vol 40, number 2, winter 2017, john hopkins university press p.245-266] once the authors received the questionnaires and transcription they separately coded the data on paper to ensure consistent analysis[footnoteref:57]. the authors both used thematic analysis to identify any themes or patterns in the data, which was particularly useful when analysing the data from the semi-structured interview[footnoteref:58]. after coding the data, the authors compared the themes they had identified and found them to be consistent, adding validity to the findings. in the next section, the authors will analyse the themes identified. [57: schreier, m (2014) ‘qualitative content analysis’ in the sage handbook of qualitative data analysis, sage publishing, p. 179] [58: burnard, p (1991) ‘a method of analysing interview transcripts in qualitative research’ nurse education today 11:6. p461] findings many of the themes that arose from the questionnaires and the semi-structured interview were as a result of the specific questions posed. for example, participants were asked about the impact on student well-being and whether they thought that the campaign was ‘too female-victim focused’. however, there were other additional themes that arose naturally from the qualitative nature of the questionnaire. these largely related to the different benefits the students felt they had obtained from their participation in the campaign. the main themes the authors identified were as follows: 1. educational benefits/skills enhancement 2. employability benefits 3. student well-being 4. limitations/feed-forward ideas educational benefits the findings were broadly consistent with jaycox[footnoteref:59] and taylors’[footnoteref:60] studies in that there was a positive correlation between the students’ participation in the programme and their improved knowledge and understanding of gbv. all of the participants agreed that the campaign increased their awareness of gbv issues. this was also supported by the definitions that the participants were able to provide about their understanding of gbv (a specific question within both the electronic questionnaires and the semi-structured interview): [59: jaycox, l.h. mccaffrey, d. eiseman, b. aronoff, j. shelley, g.a. collins, r.l. marshall, g.n. (2006) ‘impact of a school-based dating violence prevention program among latino teens: randomised controlled effectiveness trial’ journal of adolescent health, volume 39 issue 5 pp. 694-704.] [60: taylor, b. stein, n. burden, f (2010) ‘the effects of gender violence/harassment prevention programming in middle schools: a randomised experimental evaluation’ violence and victims journal volume 25 number 2. pp. 202-223. taylor, b.g. stein, n.d. mumford, e.a. and woods, d (2013) ‘shifting boundaries: an experimental evaluation of a dating violence prevention program in middle schools’ journal of prevention science. volume 14 issue 1. pp 64-76.] “gender-based violence can be understood as a violation of human of rights and a form of discrimination against women” “violence predominantly impacting women but can also be men. this can be in various ways and not limited to hurting an individual physically” “gender-based violence is a widespread issue of violence against someone because of their gender.” “where an individual is a victim of domestic violence due to their gender.” “gender-based violence is an extremely wide term and includes acts such as fgm, forced marriage, rape and domestic servitude. gender-based violence is often a societal norm in many cultures.” whilst each participant gave a different interpretation of their understanding of gbv, the definitions acknowledge the wide range of issues that could fall under the gbv heading. many of these definitions also fit within the guidance provided by the international frameworks for protection against gbv including cedaw and the istanbul convention, as discussed above. furthermore, many of the definitions acknowledge that gbv is predominantly (although not always exclusively) perpetrated against women and girls. in one case, the respondent used the term gbv interchangeably with domestic violence. this suggests that particular student’s understanding was weaker than the other students’ because they did not comprehend the fact that gbv is broader than domestic violence and also includes gendered abuse which takes place in the public sphere. the final definition quoted above expressly mentioned the international and cultural elements of gbv. this increased knowledge of international family law issues was another key theme running through the responses to the questionnaires. for example, when asked about their experience of writing for the blog, one participant commented: “i thought it was really interesting, it allowed me to research an area of law i have never been able to before, in jurisdictions i have not looked at before.” when discussing their experience of working on the empower 4 justice project, that same participant commented that: “if i am honest, i had no idea of bme issues, never mind that they occurred so locally.” building on salazar’s findings that many educational programmes fail to appropriately address cultural forms of violence[footnoteref:61], the authors specifically set out to educate the students about forms of violence that disproportionately affect minority communities. recognising the diversity of gbv was reflected in their initial aims. the authors did this by ensuring that the workshops dealt with a wide range of culturally sensitive issues and the international frameworks for protecting women and children from gbv. [61: salazar, l. cook, a (2006) ‘preliminary findings from an outcome evaluation of an intimate partner violence preventing program for adjudicated, african american, adolescent males’ journal of youth violence and juvenile justice volume 4, issue 4, pp. 386-385. ] evidence of the students’ knowledge development was also evident from the blog articles and academic posters. the students both correctly identified the domestic and international legal provisions (despite being provided with minimal supervisor guidance) and included insightful practical assistance to support victims[footnoteref:62]. the choice of topics demonstrated that the students understood the broad spectrum of gbv and the fact that eradicating it demands a multi-agency approach. the ‘16 blogs for 16 days’ were: [62: see for example strategies to prevent gender based violence at https://afamilyaffairsite.wordpress.com/2017/12/10/strategies-to-prevent-gender-based-violence and protection available under the civil law for victims of gender based violence at https://afamilyaffairsite.wordpress.com/2017/12/04/protection-available-under-civil-law-for-victims-of-domestic-violence/] · 16 days of activism – about the campaign · social norms of gbv · sexual harassment in the workplace: a study of the weinstein allegations · the istanbul convention: tackling violence against women and girls · female genital mutilation: the law in england and wales · female genital mutilation and child marriage in kenya · raising awareness of domestic abuse in same-sex relationships · rape as an act of genocide in rwanda: the role of the international criminal tribunal · marital rape: an exploration of the position in india · protection available under civil law for victims of domestic violence · forced marriage protection orders · 21st century honour killings · banaz: a love story – review · strategies to prevent gender based violence · strategies for ending female genital mutilation · legal aid for victims of domestic abuse the respondents appeared to feel empowered by this knowledge. they felt there was value in understanding about gbv because of its prevalence and because as future family law practitioners they may be called upon to support victims of abuse. the personal rewards for the students are demonstrated in the participant comments below: “working in this project has helped me learn and grow and i think become a more well-rounded individual never mind practitioner.” “working in communities and with women where they seemingly have no other access to legal advice made it more satisfying that i was able to be a part of it.” “you just felt so sorry for the women that you were helping, just it really made me feel like i was doing something worthwhile.” “i found it rewarding to write an article which is aimed at helping others.” many of the respondents recognised that during the 16 days campaign, they were exposed to topics and legislation which was not covered elsewhere on their degree programme. this raises the question about whether gbv should form part of the formal curriculum because only limited topics could be covered during the relatively short 16 days campaign. students were therefore also asked whether they would have benefited from the opportunity to undertake an academic module in international family law. one participant responded by stating: “i think this would be a brilliant module to take, regardless of the e4j project… if i had been previously exposed to these issues, i would have had a wider understanding of them. without this module, i had to understand the context of their issues before i could begin to consider legal advice – a module would have removed this.” as a result of this feedback, one of the authors has now developed an elective international family law module which will be available to level 6 students. unlike the majority of studies considered earlier in this article, this study did not attempt to measure attitudinal or behavioral change in the respondents’ own relationships. however, in a professional capacity it was apparent to the authors that the students became more sensitive to issues of gbv, which is consistent with the findings of taylor’s research in this area[footnoteref:63]. the students demonstrated increased competency in recognising triggers that many suggest a client had been subject to gbv that they may have previously overlooked. in turn, this allowed the students to ask appropriate fact find questions and direct their research appropriately. [63: taylor, b. stein, n. burden, f (2010) ‘the effects of gender violence/harassment prevention programming in middle schools: a randomised experimental evaluation’ violence and victims journal volume 25 number 2. pp. 202-223.] employability benefits from the data gathered, the respondents appeared to value the employability benefits of participating in the campaign and comments were made about the fact that they could talk about this in job interviews. the authors are aware from separate conversations with students who participated in the campaign, that several students took a copy of their blog article along to job interviews as evidence of their written communication skills and understanding of the legal climate. many of the students opted to prepare a second article on gbv, thereby demonstrating an engagement with gbv even after the campaign was over. the focus on employability could be as a result of the stage of education that these students were at. all students who participated in the campaign were in their final year of study and may therefore be more focused on their impending graduation and post-education job prospects. participants were also asked about whether the campaign had any impact on their future career choices. there was an equal split of participants who said that the campaign had made them rethink their future career choices and those who said that it had no impact. one student now wants to pursue a career as a police officer specialising in domestic abuse and another wishes to become an idva. one student commented: “it made me more interested in working within the area of family law…. i was able to gain a deeper insight into something that normally happens behind closed doors. i want to help people that are in similar situations”. the fact that students reported a change in their career aspirations suggests that at least some of the students’ engagement with issues of gender justice continued beyond involvement in the 16 days campaign. the choice of their careers (i.e. a police officer and idva) also demonstrates that the students appreciate the roles of different organisations in tackling gbv. this suggests the students did not simply view gbv as a ‘legal’ issue for lawyers to solve. student well-being the authors were aware that many of the issues covered during the campaign could potentially be distressing for students with no previous experience of gbv. that said, the authors recognised the benefit to students in learning about those issues in a safe educational environment before being exposed to these issues in practice. in order to limit the risk of vicarious trauma, students were provided with information about each of the sessions in advance and were given the opportunity to opt out of sessions if they felt that the issues covered would be too distressing. both in advance of and following the sessions a number of students made disclosures to their supervisor about previous experiences of gbv. for some of them, this was the first time they had spoken out about their experience and they indicated that the campaign had given them the courage to make those disclosures. this meant that their supervisors were then able to direct them to appropriate support services. it is possible that the students had not identified their experiences as gbv before they participated in the campaign but that the sessions made them more sensitive to this. this would be in line with the findings of taylor et al who found that their participants were more likely to identify their own behaviour as gbv after participating in the programme[footnoteref:64]. [64: taylor, b. stein, n. burden, f (2010) ‘the effects of gender violence/harassment prevention programming in middle schools: a randomised experimental evaluation’ violence and victims journal volume 25 number 2. pp. 202-223.] participants in the study were asked whether they found any of the topics covered during the campaign distressing and all indicated that they did. however, those who responded to the questionnaires also felt that they did not feel the need to approach their supervisor for additional support. the reasons given for this included: “although some of this information was distressing, it is the truth and it made me more aware and gain a greater understanding of gender-based violence although i did speak to my friends about this.” “whilst the issues in discussed the various sessions were distressing, i did not feel the need to discuss the issues with my supervisor further. i also think discussing these issues in the sessions themselves, allowed me to reflect on them and deal with them.” one student said that the documentary was distressing but they did not feel the need to approach their supervisor and decided to watch a similar documentary after the session because, whilst it was on a distressing topic, they found the subject matter interesting. this again suggests that this particular students continued to have an interest in gender justice issues after the campaign ended. they also said that they would have been able to approach their supervisor for support if they had needed to because their supervisor was so “approachable”. the documentary screening appeared to be the session that the participants found most distressing but the responses also indicated that it was also one of the most enjoyable sessions, alongside the blog articles. the participants clearly valued the educative aspects of these activities and felt appropriately prepared and supported to deal with them within a classroom environment. for example, one participant stated: “some of the topics were distressing, such as the violence banaz was exposed to. however, we are warned of this at the start and had the option to leave. gender-based violence is real life for many young girls and therefore the activities were more eye opening than distressing.” the data suggests that the authors struck an appropriate balance in meeting their duty of care to the students whilst also highlighting issues that in practice they may be exposed to with little support or prior warning. limitations of the campaign when asked about the limitations of the campaign and areas that could be improved in future campaigns/activities, a number of issues were raised by the participants. firstly, students were asked whether they thought the campaign was too “female victim focused”. four out of five respondents felt that it was. the female focus of the campaign was also reflected in the definitions of gbv outlined above, where two out of five of the students specifically mentioned abuse perpetrated against women. students made the following comments about the mainly female-victim focus of the campaign: “i know that gender-based violence and violence against women is interchangeable, but it has been really women focused and i’m just wondering if it could be more men focused” “i just feel like it needs to be a bit more like, “ok, this can encompass everyone”, whereas it was just really “women, women, women, women”, which i understand. it’s mainly just against women…” “when [x] came in, you could tell straight off that she was really, just a feminist basically… which isn’t like awful, but… the way she was speaking was a bit against men in some aspects. she was like “when men do this” and “when men do that.” “whilst i appreciate that gbv is considered to be generally towards females and their perspectives need to be presented, i think it would allow students to have a more well-rounded and informed viewpoint if other groups of people are also considered.” the negative reaction to the female focus of this campaign appears to be evidence of the ‘backlash effect’ as highlighted by salazar.[footnoteref:65] this was particularly apparent in the session on online abuse against feminists. it is possible that students who did not identify as feminist felt ostracised by this session or that the focus on male-to-female abuse led to some students feeling defensive about the treatment of men within the sessions. however, as is apparent from the quotes above, students appeared to understand that the reason for the female-victim approach was that statistically there are more female victims of gbv. [65: salazar, l. cook, a (2006) ‘preliminary findings from an outcome evaluation of an intimate partner violence preventing program for adjudicated, african american, adolescent males’ journal of youth violence and juvenile justice volume 4, issue 4, pp. 386-385.] however, as identified in the final quote, students were also keen to hear about other victims of gbv. students expressly indicated a wish to hear about male victims of domestic abuse and abuse within same-sex relationships. reflecting on our initial aims after analysing the data and identifying the key themes, the authors then considered the feedback from the participants, reflecting on the initial aims. all respondents agreed that participation in the campaign had increased their awareness of gbv and in particular the practical issues of advising bame victims of domestic abuse. england is a multicultural, diverse society and as a result family law practitioners are now often being expected advise in culturally sensitive or international family law cases. as has been highlighted earlier in this article, recent family court statistics demonstrate a continuing general upward trend in both the number of applications and actual orders made for forced marriage protection orders and female genital mutilation protection orders.[footnoteref:66] by increasing the students’ awareness of these issues the authors would argue that they have taken steps towards developing an effective educational tool to ensure that students are equipped to deal with the realities of family practice in england. there was some evidence that the students’ engagement with issues of gender justice was continued beyond participation in the campaign in those students who completed second blog articles on gbv and those who reported changed career aspirations after participating in the 16 days campaign. [66: ministry of justice and national statistics (28 june 2018) family court statistics quarterly: january to march 2018.] there was also evidence that the students’ knowledge of the domestic and international frameworks around gbv had increased. this was reflected in the blog articles and the definitions that the students provided of gbv. as this was not a longitudinal study, the data does not reveal whether this knowledge was retained after the end of the programme. this is discussed in the research limitations. however, the campaign largely focused on gbv perpetrated against female victims by male perpetrators. this was somewhat led by female victim focus of the international campaign and also by the generally accepted view that the majority of victims of gender-based violence and abuse are female.[footnoteref:67] that said, the number of male victims of gbv is not insignificant. for example, there were an estimated 713,000 male victims of domestic abuse in 2017[footnoteref:68] and in the same year 21.4% of the cases referred to the forced marriage protection unit involved male victims[footnoteref:69]. this limitation in the campaign was identified by many of the students in their responses and cannot be ignored. by failing to consider the wider victims of gender violence such as male victims, victims of abuse in a same-sex relationships or non-binary victims, it could be argued that the authors have not yet succeeded in fully achieving the aims of the study. [67: the office of national statistics estimates that, for the year ending march 2017, there were 1.2 million female victims of domestic abuse compared to 713,000 male victims: office for national statistics (23 november 2017) domestic abuse in england and wales: year ending march 2017 < https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/bulletins/domesticabuseinenglandandwales/yearendingmarch2017>. ] [68: ibid] [69: home office (16 march 2018) forced marriage unit statistics 2017] research limitations the research had other general limitations. this study only relates to students undertaking the student law office module on the mlaw (solicitors route) exempting course at northumbria university. it therefore cannot be said to be representative of students on other programmes or at other higher education institutions. it is recognised that the findings therefore cannot be generalised and further research is necessary to understand if this is an effective way of educating students more generally about gbv. to maintain anonymity in the responses the students were not asked to identify whether they were participating in a family law firm in the clinic and therefore required to attend the sessions or whether they were a member of a different firm and therefore attending voluntarily. in could be argued that the 18 students who elected to participate in a family law firm, may have an existing interest in some of the issues covered. the findings may therefore not be representative of mlaw students more generally. it was not possible to identify from the data which of the particular activities were most effective in developing the students’ knowledge or practical skills. as such, the authors are only able to comment on the campaign as a whole. furthermore, whilst the authors noted an improvement in the students’ confidence and ability to deal with vulnerable clients (and this was mirrored in comments made by the respondents), it was not clear from the data whether this was directly related to their participation in the campaign or the fact that the students simply became more experienced at working with such clients over the course of the academic year. it is the authors’ belief, however, that the campaign provided the students with the breadth of knowledge that allowed them to think more broadly (and more creatively) about the issues affecting their clients. a final limitation of the study is that the data does not show whether the students’ knowledge was retained beyond their participation in the 16 days campaign. research suggests that studies which focus on ‘laws and justice’ may be more likely to have longer term benefits than curriculums which are interaction based (i.e. focussed on setting and communicating boundaries in relationships, the formation of relationships, wanted/unwanted behaviours)[footnoteref:70]. the authors’ curriculum was predominantly focussed on law and justice however further research would be needed to evaluate the longer-term effects of the study. [70: taylor, b. stein, n. burden, f (2010) ‘the effects of gender violence/harassment prevention programming in middle schools: a randomised experimental evaluation’ violence and victims journal volume 25 number 2. pp. 202-223.] impact on the wider community one of the underlying reasons for asking students to participate in the campaign was to aid them in assisting victims of gbv both in their clinic work but also in their future employment, should they choose a career in this field. the true aim of the project therefore goes beyond the impact on the students participating in the campaign, towards the impact on victims of gbv in the local community and beyond. this is something that was acknowledged by one of the participants who stated that: “i know that working in family firms is rewarding but working in communities and with women where they seemingly have no other access to legal advice made it more satisfying.” since 2017, students in the family firms in the student law office have provided assistance by way of advice or representation in over 30 cases and over 20 women have received advice through the empower 4 justice drop in clinic. in addition to this, the a family affair blog has received over 2200 views across 35 countries since its launch in november 2017. the impact of this project was acknowledged at the annual law works & attorney general student pro-bono awards, where it was awarded “best new pro bono activity”.[footnoteref:71] the award nomination acknowledged the 16 days campaign, combined with the wider work that the students do to assist victims of domestic abuse in the local community through the clinic, empower 4 justice and the online blog. [71: https://www.lawworks.org.uk/solicitors-and-volunteers/get-involved/lawworks-and-attorney-generals-student-pro-bono-awards-2018] taking the research forward – concluding remarks building on the feedback received and in a continued attempt to meet the aims set out, the authors now plan to move away from the female-focused 16 days campaign, towards a two-day student conference that will consider a wider range of victims of gbv. workshops will be developed to specifically discuss male victims of domestic abuse and domestic abuse within same-sex relationships. however, when educating students about these issues, the authors consider that it is important to maintain the pedagogical focus of the activities, acknowledging that students learn in very different ways. jacobson discusses the importance of this in her work around learning style theory and particularly how increased diversity of gender and ethnicity in law schools has equally led to increased diversity in thought and learning styles.[footnoteref:72] a variety of different learning activities will therefore be incorporated into the conference structure including workshops, poster competitions and documentary screenings. [72: jacobson, m.h. sam (2001) a primer on learning styles: reaching every student (law school), seattle university law review, summer, 2001, vol.25(1), p.140,] adopting a conference structure will also be an opportunity to engage students in research-rich learning, a focus for many uk higher education institutions. at the end of the conference, students will be invited to either submit an article to the “a family affair” blog[footnoteref:73] or a paper to the student journal of professional education and academic research[footnoteref:74]. this has employability benefits for the students who choose to take up these publication opportunities and provides evidence of their research and written communication skills that they can provide to potential employers. the data already gathered indicates that this is a benefit that students particularly value. [73: https://afamilyaffairsite.wordpress.com] [74: http://www.northumbriajournals.co.uk/index.php/sjpe] staff and students from other higher education institutions will also be invited to attend the conference. this will be an opportunity to share best practice in this area and to engage other universities where there is a demand for this type of work but where there may be a lack of expertise, time or funding to be able to run similar programmes. secondly, this will allow data to be gathered on methods of educating students about gbv outside of northumbria university, making the findings more widely applicable to higher education institutions. bibliography books · o’toole, l. schiffman, j. edwards, m. (2007) gender violence: interdisciplinary perspectives. new york: new york university press · schreier, m (2014) qualitative content analysis in the sage handbook of qualitative data analysis, sage publishing, p179 articles · burnard, p (1991) a method of analysing interview transcripts in qualitative research, 11:6 nurse education today, 461, 461 · edwards, a. hinsz, v (2014) a meta-analysis of empirically tested school-based dating violence prevention programs sage open april-june 2014 1-8. · foshee, v. a. bauman, k. e. arriga, x. b. helms, r. w. koch, g. g & linder, g. f. 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(2006) impact of a school-based dating violence prevention program among latino teens: randomised controlled effectiveness trial. journal of adolescent health, volume 39 issue 5 pp. 694-704. · lavoie, f. vezina, l. piche, c. & boivin, m. (1995) evaluation of a prevention program for violence in teen dating relationships. journal of interpersonal violence volume 10. pp 516-524. · lowe, l. jones, c.d. banks, l (2007) preventing dating violence in public schools: an evaluation of an interagency collaborative program for youth. journal of school violence, volume 6 issue 3. pp. 69-87 · malhotra, k. gonzales-guarda, r. mitchell, e (2015) “a review of teen dating violence prevention research: what about hispanic youth?’ trauma, violence and abuse volume 16, issue 4. pp. 444-465. sage publications. · macgowan, m. j. (1997) an evaluation of a dating violence prevention program for middle school students. journal of violence and victims volume 12. pp 223-235.  · salazar, l. cook, a (2006) preliminary findings from an outcome evaluation of an intimate partner violence preventing program for adjudicated, african american, adolescent males. journal of youth violence and juvenile justice volume 4, issue 4, pp. 386-385. academy of criminal justice sciences. · sandhu, k. stephenson, m.a. (2015) open space layers of inequality – a human rights and equality impact assessment of the public spending cuts on black, asian and minority ethnic women in coventry. feminist review volume 109. pp 169-179. · siddiqui, h (2018) counting the cost: bme women and gender-based violence in the uk. ippr progressive review volume 24 issue 4. pp 362 -368. · taylor, b. stein, n. burden, f (2010) the effects of gender violence/harassment prevention programming in middle schools: a randomised experimental evaluation violence and victims journal volume 25 number 2, pp. 202-223. · taylor, b. stein, n. burden, f (2010) the effects of gender violence/harassment prevention programming in middle schools: a randomised experimental evaluation violence and victims journal volume 25 number 2. pp. 202-223 · taylor, b.g. stein, n.d. mumford, e.a. and woods, d (2013) shifting boundaries: an experimental evaluation of a dating violence prevention program in middle schools. journal of prevention science. volume 14 issue 1. pp 64-76. consultations and reports · amnesty international uk (october 2016) ‘cuts that hurt: the impact of legal aid cuts in england on access to justice’ (www.amnesty.org.uk/cutsthathurt) · hm government consultation (2018) “transforming the approach to domestic abuse”. https://consult.justice.gov.uk/homeoffice-moj/domestic-abuse-consultation/supporting_documents/transforming%20the%20response%20to%20domestic%20abuse.pdf · home office and foreign and commonwealth office (16 march 2018) forced marriage unit statistics 2017 (accessed at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/709954/2017_fmu_statistics_final.pdf) · klugman, j (2017) background paper for world development report 2017 ‘gender based violence and the law’ (accessed at: http://pubdocs.worldbank.org/en/232551485539744935/wdr17-bp-gender-based-violence-and-the-law.pdf) · lawworks clinic network report april 2016 – march 2017 (december 2017) analysis of pro bono legal advice work being done across the lawworks clinic network between april 2016 and march 2017. · the law society of england and wales (june 2017) ‘access denied? laspo four years on: law society review’ (www.lawsociety.org.uk) · ministry of justice and national statistics (2018) family court statistics quarterly: annual 2017 including october to december 2017. · ministry of justice and national statistics (29 march 2018) family court statistics quarterly: october – december 2017 · ministry of justice and national statistics (28 june 2018) family court statistics quarterly: january – march 2018 · office of national statistics (november 2017) domestic abuse in england and wales: year ending march 2017. statistical bulletin. the statistics can be accessed at: https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/bulletins/domesticabuseinenglandandwales/yearendingmarch2017 · the european institute for gender inequality’s report “strategic framework on violence against women 2015-2018” luxembourg: publications office of the european union. websites · http://www.unwomen.org/en/what-we-do/ending-violence-against-women/take-action/16-days-of-activism · https://metoomvmt.org · https://www.timesupnow.com · https://www.sas.rutgers.edu/cms/16days/images/16dayscwgl/2017_16_days_of_activism_against_gender-based_violence_action_kit_complete_september_28_2017.pdf · http://www.un.org/sustainabledevelopment/gender-equality/ · https://www.cbsnews.com/news/metoo-reaches-85-countries-with-1-7-million-tweets/) · https://www.lawworks.org.uk/solicitors-and-volunteers/get-involved/lawworks-and-attorney-generals-student-pro-bono-awards-2018 · https://afamilyaffairsite.wordpress.com/ legislation · anti-social behaviour, crime and policing act 2014 · council of europe convention on preventing and combating violence against women and domestic violence (the istanbul convention) · convention on the elimination of all forms of discrimination against women (cedaw) · female genital mutilation act 2003 · forced marriage (civil protection) act 2007 · general recommendation no 19 of the cedaw committee on violence against women · modern slavery act 2015 · serious crime act 2015 128 practice report 230 legal clinic as an exotic phenomenon in hungary renáta kálmán1 introduction in hungary today, we are experiencing a new phenomenon in the field of higher education. universities and colleges have begun to emphasize the importance of the introduction and application of new teaching methods. the recent techniques are totally different from the previous, traditional ones. due to some hindering factors, the transformation from the old to the new methods is difficult. only a few teachers are willing to adopt new techniques to improve the effectiveness of education. the practical or experiential learning methods were and still are an essential part of some university training, such as medical, pharmaceutical, engineering, etc. in the abovementioned training, the theoretical and practical parts of the curriculum have equal importance, this sets a good example for other training. learning by doing is an ancient concept. as the chinese proverb states, “i hear and i forget, i see and i remember, i do and i understand.”2 nevertheless, some training focuses on the 1 renáta kálmán is an assistant professor in the constitutional law department at the faculty of law and political sciences, university of szeged, hungary 2 richard j. wilson: the global evaluation of clinical legal education, more than a method, cambridge university press, 2018, p. 7. practice report 231 fulfillment of this ancient saying, still, there are many areas of higher education, which are far from reaching this goal, for example, legal education. in hungary, in the field of legal education, the traditional teaching methods of knowledge transmission are still dominant. the students are passive elements of learning. for example, during lectures they just sit in the classroom and take notes about what they hear from the teacher, without questioning or discussing the material. however, the transformation is underway and new, practice-oriented teaching techniques, such as mediation, classes about legal argumentation techniques, legal clinic, alternative dispute resolution, etc are being introduced. my article aims to delineate the current situation of clinical legal education in hungary. since, clinical legal education is part of the legal education, the article focuses on the challenges that the law faculties and teachers face presently. although, legal clinic methodology is not a new phenomenon, for example in the usa, it has been growing since the 1960s, in hungary, only a few law faculties implement it in their curricula. unfortunately, only one legal clinic has operated continuously since 2005. there have been a few attempts in other faculties to introduce legal clinic seminars, but almost all of them failed after a couple of years for different reasons; such as lack of financial support from the faculty or lack of qualified teachers. these issues raise the question, whether there are any factors, which make widespread adoption of clinical legal education in hungary possible? if yes, what are these? there practice report 232 are some hindering factors, which make this educational method less favorable, but the present article tries to provide answers to the above-mentioned questions. the paper at hand is divided into three main parts. the first part deals with a new situation in the field of higher education, focusing on the law major in hungary, because a comprehensive transformation was concluded in 2019. the minister responsible for higher education issued a decree at the beginning of 2019, in order to uniformly define the general educational output requirements for students. the latter part of the article will present a deeper insight into this transformation. the second part briefly introduces the types and the operation of those legal clinics, which are currently functional in hungary. thirdly, the domestic fulfillment of two main goals of the clinical legal education (social and educational) will be discussed. the author highlights, why the educational goal of the legal clinic is emphasized more in hungary, than the social one. the current transformation of the hungarian higher education system to begin, it is important to define alternative education, since the clinical legal education belongs within this category. alternative education is an umbrella term, which includes such non-formal educational forms and methods that are different from the usual, traditional ones. the students are at the centre of this method, where practice report 233 attention is given to the needs and the different stages of development of the students, making it an excessively flexible, permissive system, which serves equality.3 alternative educational methods are not really welcomed in hungary, especially in the field of law. there are many reasons, which contribute to this non-favourable position. first of all, alternative educational methods are more expensive than the traditional ones (more and special equipment is needed, the professor has to participate in special training, which means additional financial burden to the university, etc.). second of all, the practice-oriented seminars operate with only a few (maximum 15) students unlike the traditional knowledge transmission focused lectures, where more than 100 students can participate thus teachers have to deliver more seminars under an alternative education model. thirdly, the role of the professor becomes more of a consultant, facilitator, than a teacher. they have to adjust to their new role, which could cause a problem, especially for the senior staff, who are used to teaching in the same ways. following this brief introduction, this article will focus on the current transformation of hungarian higher education. as it was mentioned above, at the beginning of 2019, the minister responsible for higher education issued a decree,4 which amended the legislation made in 18/2016. the emmi decree uniformly defines the output requirements for students. the general output requirements were divided into four 3 lászló kadocsa: az atipikus oktatási módszerek [atypical teaching methods] in: felnőttképzési kutatási füzetek, budapest 2006, p. 49. 4 art. 8. ministerial decree no. 3 of 2019, february 11 (emmi) practice report 234 major components: professional (cognitive) knowledge, skill/proficiency, professional attitude and autonomy and competence relevant to responsibility. any student, who achieves a master's degree, must acquire different knowledge and skills in the given components. concerning professional (cognitive) knowledge, for instance, a student shall know his field and the relation to other similar fields of work; the given major’s general concepts, problem-solving techniques, terminology, and ethical norms. in terms of professional knowledge, a law student should learn the theoretical and practical knowledge regarding legal professions, mechanisms of the state and legal system. moreover, a law student must know the problem-solving methods of scientific work, the terminology of law, the historical development of legal systems, human rights and the essence of many relevant national and international rules and doctrines. knowledge of legal ethics and new moral dilemmas are also part of the training, because lawyers will face how thin is the line between ethical and non-ethical conduct, e.g. rules of conflict of interest. the experiential or practical learning, such as clinical legal education, provides an opportunity for the students to experience these ethical principles in practice.5 5 2. jurist undivided training educational output requirements, ministerial decree no. 18 of 2016, august 5 (emmi) and no. 8 of 2013, january 30 (emmi) on training and output requirements for vocational training in higher education, basic and master training, and common requirements for teacher training and training and output requirements for individual teaching periods practice report 235 under skill/proficiency, the student will synthesize comprehensive and special problems through an interdisciplinary approach by applying the given field’s terminology in an innovative manner. also, effective research skills both at national and international level must be acquired, and the student shall be taught how to present those results to the scientific community. law students must be able to analyse different views and theories concerning the law by applying professional legal terminology. in addition to being able to build up logical reasoning, conducting vivid debates about social and legal issues both in academic and non-academic environments, the student will be able to demonstrate this learning in a foreign language. moreover, the law student is trained to interpret legal norms and think critically concerning those rules. for example, during a live-client clinic seminar, the students have a hearing with the client, in order to find the legal problem that they will work on. after they search for the relevant laws and regulations, which can help them to find a solution(s) for the case, they provide legal advice to the client. this simple example proves that clinical legal education makes possible the acquisition of those skills, which are missing from the traditional knowledge transmission education.6 third of all, professional attitude includes a developed professional attitude and work ethics, which transfers knowledge in an authentic way. this also requires endeavours to follow and contribute to the novelties in this field, and, take a leading role in the 6 ibid. practice report 236 workplace. in the field of legal training, attitude includes openness to continuing education and intellectual self-development. furthermore, a law student should have a critical and sensitive approach regarding social problems, and be open to involving non-legal or alternative methods to find the best possible solution to an issue. moreover, they should be dedicated to equality, rule of law, pro bono work, highquality work.7 most of the live-client clinics provide free legal services to marginalized groups and those who cannot afford the cost of a lawyer.8 the pro bono work done by the students has two main winners: the client and the student. from the client’s point of view, it is important that the who person deals with his case has specialist legal knowledge, and that they are given access to justice. from the student’s perspective, firstly, they gain and improve their above-mentioned knowledge and skills, secondly, they get an insight into how state institutions function. therefore, the clinical programs, indirectly, shape the social awareness of lawyers, thus humanizing the legal profession.9 last, but not least, autonomy and competence relevant to responsibility means that a student learns how to work independently in professional tasks and represent their professional point of view in decision-making processes. furthermore, the student 7 ibid. 8 judit tóth: legal clinic as a promising alternative instrument in hungary, jogelméleti szemle, 2017/4. szám p. 151. 9 dr. hab. fryderyk zoll, dr. barbara namysłowska-gabrysiak: chapter five – the methodology of clinical teaching of law, in: the legal clinic. the idea, organization, methodology, (ed: dariusz lomowski), fundacja uniwersyteckich poradni prawnych, varsó, 2005, p. 186. practice report 237 might be more eager to contribute to research projects at their workplace and become familiar with the mechanisms of teamwork. the law student should endeavour to develop their own professional identity, performs their job in a quality and precise way and take responsibility for the public.10 in addition to these, legal education has specialized output criteria too.11 these are the following: a) 300 credits must be obtained, and ca. 70-80% of the credits come from theoretical lectures and only 15 credits from optional/elected courses, like legal clinic, b) 6 weeks professional practice in a law-related position. consequently, the theoretical element is still highly important in legal education, although, in the lastfew years, a discussion has begun about increasing the percentage of practical training. even though, the majority of law students will work in practice, they still gain only a relatively small amount of practical knowledge during their studies. the students can complete their mandatory 6 weeks of professional practice at a court, at a public prosecutor office, at a police department, or an attorney’s office, etc. although, only a few elements of the output requirements were mentioned, these make it clear that clinical legal education can be an outstanding part of the legal curriculum, which can help to achieve the realization of the educational output 10 2. jurist undivided training educational output requirements, ministerial decree no. 18 of 2016, august 5 (emmi) and no. 8 of 2013, january 30 (emmi) on training and output requirements for vocational training in higher education, basic and master training, and common requirements for teacher training and training and output requirements for individual teaching periods 11 ibid. practice report 238 requirements. during the legal clinic course, students are able to acquire most of the required knowledge, skills, autonomy, and responsibility. despite this new regulation, the theoretical part of legal education remained dominant. nevertheless, according to a survey of law students,12 the most important qualities of a law practitioner are the following: sense of justice, good oral communication, logical thinking, and empathy. therefore, it is clear that the traditional way of teaching cannot fulfil either the students’ or the legislation’s expectations. after the transformation of the higher education system in hungary, it is important to discuss those hindering factors, which impede the spread of alternative educational methods especially the legal clinic. the three factors discussed here are: a) curriculum, b) teaching methods, c) attitude of teachers. one of the biggest questions is what should be taught. in legal education, the effective law always stood in the focal point of teaching. such approach leads us to the next question, how detailed knowledge should be acquired concerning effective law, since it changes very often?13 is it enough to study the frameworks and the basic legal principles, or should the tiniest details be known as well? 12 helga feith and attila badó: magyar joghallgatók motivációs vizsgálata [survey on motivations of law students in hungary]. jogelméleti szemle, 2000/4 pp. 2-18. http://jesz.ajk.elte.hu/bado4.html 13 zsolt nagy: a jogi oktatás fejlődés és aktuális kérdései, [the improvement and the actual questions of the legal education] phd értekezés, szeged, 2006 p. 150. http://doktori.bibl.uszeged.hu/263/7/nagy_zsolt_ertekezes.pdf http://jesz.ajk.elte.hu/bado4.html http://doktori.bibl.u-szeged.hu/263/7/nagy_zsolt_ertekezes.pdf http://doktori.bibl.u-szeged.hu/263/7/nagy_zsolt_ertekezes.pdf practice report 239 there is no unified standpoint, since the legal society is divided regarding this question. some experts emphasize the priority of the practical part of legal education, while others stand for the importance of the theoretical methods.14 the best way is if the theoretical and practical methods are equally present in legal education. the tuning report pointed out that the biggest gap between the employers and the freshly graduated lawyers is that employers have the ability to apply their knowledge in practice.15 such gap can be reduced by the implementation of different alternative educational methods, like clinical legal education in the curriculum. the second problematic factor is the manner of teaching. the author’s opinion is that the most urgent change is needed in this area. as it was mentioned above, the students are passive elements of education, they are afraid to answer the lecturer’s questions and the teacher is still an authority figure and not a facilitator. the dominance of traditional teaching is challenged by only a few non-traditional teaching methods that are implemented by professors. however, it is proven that those universities and colleges can be successful and fulfil the output requirements, which provide useful, transferable knowledge and skills, and use diverse teaching methods.16 the third hindering factor is the attitude and the position of the teachers. a related issue is that it seems hard to decide, who should teach at the university. if only 14 ibid p. 151. 15 julian lonbay et al.: tuning legal studies in europe: initial findings, 2008, pp. 24-25. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1677820 16 zoltán fleck: a jogászképzés szintleíró jellemzői [the level describing characteristics of legal education] elte ájtk, 2017 p. 11. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1677820 practice report 240 practitioners were to teach, they would focus solely on those skills and knowledge, that they found useful in their work. basically, they would train “practice-ready” students.17 this attitude could lead to the omission of thinking on abstract level and basic theoretical knowledge from legal education. if only professors were to teach law, they would focus on doctrines, so there would be few courses where students could gain applicable knowledge and skills. in other words, “the law professors largely focus on what they teach, not how or even why.” 18 furthermore, “in the european system of legal education, contrary to the u.s., clinical faculties are burdened by the pressure to achieve academic advancement in short period of time.” 19 consequently, teachers have to sacrifice those activities which require longer preparation. moreover, “the teaching itself has been relatively unimportant aspect of the law teacher’s academic life. instead, scholarship – the production of articles and books […] has always been the gold standard of the professoriate.” 20 in summary, the position of the law teachers and their attitude towards the alternative educational methods present a hurdle to the improvement of legal education. another important aspect is the background of the current legal educators in hungary, because they have no pedagogical education. therefore, whether it is a law practitioner or a professor, who 17 renáta kálmán: a jogklinika, mint alternatív oktatási módszertan?! [legal clinic as an alternativ educational method?!], miskolci jogi szemle 2019/1., p. 74. 18 richard j. wilson: the global evalution of clinical legal education, more than a method, cambridge university press, 2018, p. 7. 19 dubrava aksamovic, philip genty: an examination of the challenges, successes and setbacks for clinical legal education in eastern europe, international journal of clinical legal education, vol. 20, 2014, p. 437. 20 richard j. wilson: the global evaluation of clinical legal education, more than a method p. 7. practice report 241 teaches the students, neither groups will have any prior knowledge about teaching methods, pedagogy or group dynamics. currently, anyone with a law degree can teach law at the university, even without practical or teaching experience. as a result, there are, with exceptions, basically two different groups of legal educators in hungary. the first group involves career professors, who enter into the academic sphere (usually right after graduation) as a phd student or assistant professor and then climb up the ladder until full professorship. on the other hand, there are the law practitioners, who simultaneously working in practice and academia, thereby providing an insight into their field of expertise. therefore, as i mentioned above, both group members are experts in their field of law, but none of them has pedagogical or teaching background. however, there is a growing interest in pedagogical education with some legal educators participating voluntarily in continuing education courses (1-2 days). consequently, they are able to transfer their knowledge, but a facilitator role is a new and strange position for them. more hindering factors could be mentioned, but these factors are the most relevant ones explaining why the spread of alternative educational methods is happening slowly. nonetheless, this author believes that “[a] traditional education, based solely on information transfer is the least effective, as passive inclusion often cannot even reach understanding.” 21 the teachers play a decisive role in preparing students for 21 zoltán fleck: a jogászképzés szintleíró jellemzői [the level describing characteristics of legal education] elte ájtk, 2017 p. 27. practice report 242 the legal profession, so it is important to train the student to be a critical thinker, not a memorizer. if students understand the connections of the legal system, they can realize the social conflicts, and can take responsibility for the public interest as the new education output requirements desire. the education of other professions (medical, engineer, pharmacist, etc.) serves as a stimulus to rethink the structure of legal education. with the greatest challenge for legal education being “linking the interests of legal educators with the needs of legal practitioners and with the public the profession is pledged to serve.”22 as long as the supply and demand are imbalanced, higher education cannot fulfil the employers’ expectations. therefore, it is really important to cooperate with the employers, when the state decides the output requirements of the higher education, since they will work with the new graduates. also, the students’ ability to adapt to the changing inner and external expectations shall be also taken into account. legal clinics in hungary even though, legal clinics have two main types, ngo-based and university-based, only the second one functions in hungary. the hungarian law faculties can be divided into 3 types under this approach: a) legal clinic has never been in place, b) legal clinic exists intermittently, including street law occasional legal assistance for 22 william m. sullivan et al.: summery, educating lawyers preparation for the profession of law, the carnagie foundation, 2007, p. 4. http://archive.carnegiefoundation.org/pdfs/elibrary/elibrary_pdf_632.pdf http://archive.carnegiefoundation.org/pdfs/elibrary/elibrary_pdf_632.pdf practice report 243 local people, c) legal clinic is, as an elective course, an integral part of curricula.23 unfortunately, legal clinic research does not stand in the focal point of research in hungary, thus we have no further information as to why certain law faculties did not even try to establish a legal clinic program. those law faculties that temporarily operated legal clinics faced several difficulties, but the reasons for their cessation can be known only from informal discussion with those involved. for instance, lack of financial support. some of the clinics-maintained funding for a limited period of time and this when this funding ended the clinic was disbanded. another reason is the lack of human resources, i.e. the skilled leader of a legal clinic leaves the academic sphere and the faculty cannot find a successor. at the time of writing, only three law faculties out of nine, run a clinic as part of their curricula. the legal clinic at the university of pécs faculty of law has operated since 2013 as an elective course. the legal clinic course takes two semesters. the first semester is an introductory course which includes the methods of legal clinic, the practice of legal writing and working in groups, introduction to presentation techniques and teaching of ethical rules. the second semester is practice oriented. the students have two options, either work at the campus legal aid clinic or choose one of the faculty’s external partners (e.g. pécs regional court, regional court of appeal of pécs, public prosecutor office of baranya county, etc.) and work there with a judge or prosecutor, 23 judit tóth: legal clinic as a promising alternative instrument in hungary, jogelméleti szemle, 2017/4. szám p. 153. practice report 244 etc. therefore, they get an inside look into how these institutions function. in campus legal aid clinic, law students provide written legal advice to students of other faculties. before they send their advice to their clients, a tutor who can be a judge, an attorney, or a professor will review whether their legal advice is correct or not.24 since 2016, eötvös loránd university faculty of law have run a street law clinic. the clinic works together with an ngo, streetlawyer association25 to provide free legal advice to homeless people and those who live in housing poverty in the capital, budapest. the course takes one semester and only 10 students can participate. the course is divided into two main parts: theoretical preparation and practice.26 the theoretical preparation takes one day and includes the sociological characteristics of homelessness, sensitivity towards homeless people, and the most relevant laws, such as rules of infringements or eviction, etc. in the second part, students meet with the clients together with their tutor. every student has to solve at least one complex legal issue. after the hearing, the students start to find the relevant laws and regulations to provide proper legal advice to the client. during that period, the student maintains contact with the client to collect more information as needed. finally, after the student has consulted with their tutor, they provide their legal advice to the clients in writing and explain the essence of their advice using everyday language. 24 legal clinic at university of pécs https://ajk.pte.hu/hallgatoknak/jogklinika 25 streetlawyer association: http://utcajogasz.hu/en/ 26 street law https://www.ajk.elte.hu/file/tsz_jot_utcajogasz_1617_2.pdf https://ajk.pte.hu/hallgatoknak/jogklinika http://utcajogasz.hu/en/ https://www.ajk.elte.hu/file/tsz_jot_utcajogasz_1617_2.pdf practice report 245 the third legal clinic, which has operated continuously since 2005, belongs to the university of szeged faculty of law and political sciences. this legal clinic has the longest uninterrupted history in hungary. as an optional course, it is divided into three parts (legal clinic i, ii and iii.).27 the legal clinic i has two main parts: preparatory and practical. the preparatory part takes 3 days and includes legal, psychological and communication training. the practical part means (same in all legal clinic courses) that students have legal counselling with their clients at least 30 hours per semester.28 those students, who enjoyed the legal clinic work during legal clinic i, can choose the legal clinic ii and later iii. since the legal clinic of szeged has bilateral partnership agreements with local ngos representing handicapped, unemployed, sick, roma, homeless people and families students provide legal advice to those who cannot afford the cost of a lawyer. as in the above-mentioned legal clinics, students have to consult with their tutor in each case, and after every “closed” case they have to write a report. in summary, all of the legal clinics, which are an integral part of the curricula in hungary are live-client clinics, so the students are not dealing with simulated cases, but with real ones. the legal clinic at the university of pécs is, on the one hand, an inhouse (campus legal aid clinic), and on the other hand, an externship type of legal 27 legal clinic at university of szeged: http://www.juris.u-szeged.hu/english/legal-clinic/legal-clinic 28 judit tóth: legal clinic as a promising alternative instrument in hungary, jogelméleti szemle, 2017/4. szám p. 153. http://www.juris.u-szeged.hu/english/legal-clinic/legal-clinic practice report 246 clinic (work with a judge at e.g. pécs regional court).29 the other two legal clinics (at eötvös loránd university and university of szeged) are also in-house clinics. the common characteristic of these two clinics is that the students provide free legal counselling to marginalized groups and those who cannot afford the cost of a lawyer. in the last couple of years, legal clinicians have cooperated to strengthen the position of clinical legal education and to exchange information. they organized meetings, workshops and conferences, and published newsletters. in 2015, the encle and in 2017, the pilnet organized a conference in budapest. yet, the number of the clinicians is quite small, and the legal education sector is still sceptical concerning alternative educational methods like the legal clinic, but we still can see some improvements. social vs. educational goal as was mentioned above, the legal clinic (movement) has two main purposes: social and educational. the question is, can we place one purpose before the other or do they have the same value and importance? in the author’s opinion, they are equally important and must be balanced, but in hungary generally the educational goal seems to be prioritized. however, since each functioning legal clinic in hungary deals with live clients’ real cases, we cannot say that the social goal is not present in their operation. 29 for further detalis regarding in-house and externship legal clinics, see roy stuckey and others: best practices for legal education – a vision and a road map, 2007, pp. 139-152., https://www.cleaweb.org/resources/documents/best_practices-full.pdf https://www.cleaweb.org/resources/documents/best_practices-full.pdf practice report 247 the educational goal includes specialist legal (cognitive) knowledge, lawyering skills and professional responsibility. all of these are crucial elements of the output requirements for graduated students, which were defined in the decree of the minister responsible for higher education. we should therefore turn our attention to the social goal of the legal clinic. how could we define the social aim of legal clinics? it appears, when students solve social problems and provide free legal advice to marginalized groups and those who cannot afford the cost of a lawyer, they are providing access to justice for these people. each legal clinic in hungary requires its students to give legal advice in writing. none of them allows the students to represent a client in court or in front of any other authority. this means that the majority of legal service is related to the explanation of legal conditions, to public administration, municipal procedures, mediation in conflict and drafting of legal proposals. so, the question is, if students cannot represent their clients and they can give legal advice only in writing, is the social goal of the legal clinic fulfilled? in the author’s opinion, yes it does, because these legal services are really important, since these clients do not have access to a lawyer and they do not have the legal knowledge to solve their legal issues by themselves.30 “the statement of the 2007 london conference of union ministers for education puts it this way: higher education should play a decisive role in cultivating social cohesion, 30 renáta kálmán: lengyel-magyar két jó barát, avagy a jogklinika programok összehasonlító elemzése [pole and hungarian, two good friends or a comparative analysis of the legal clinic programs] in: fejes zsuzsanna (szerk.): jog és kultúra, szegedi tudományegyetem államés jogtudományi doktori iskola, szeged, 2018, pp. 43-44. practice report 248 reducing inequalities and raising the level of knowledge, skills and competences in society. the legal clinical education is a perfect example of this social accountability of universities.”31 consequently, the legal service delivered by students, help clients to access justice and provides an opportunity to the students to get an insight into how chaotic the public administration can be and how the institutions interpret the same rules differently. such legal service improves their emotional skills, critical thinking and also their social responsibility, which are also elements of the output requirements. the legal clinics have micro and macro goals as well. the micro goal is the development of the student’s professional identity, while the macro refers to institutional critique32 which “may lead to an appreciation for social justice […] and develop the habit of questioning and critiquing the status quo that they encounter.”33 even though, the two main actors are the client and student, the university is a beneficiary of the legal clinic as well. through the legal clinic, the university builds networks with ngos, institutes, other universities at national and international levels, and promotes the social responsibility of the university. 34 through the introduction 31 clelia bartoli: legal clinics in europe: for a commitment of higher education in social justice, diritto&questioni pubbliche, 2016, p. 16. 32 linda f. smith et al.: risks and rewards of externships: exploring goals and methods, international journal of clinical legal education vol. 24. 2017, pp. 60-61. 33 ibid. p. 61. 34 clelia bartoli: legal clinics in europe: for a commitment of higher education in social justice, diritto&questioni pubbliche, 2016, p. 25. o. practice report 249 of a legal clinic course, universities could satisfy their social responsibility to the public. why should all faculties, who have legal clinic course, focus on the educational goal in hungary? the act on the professional activities of attorneys-at-law enumerates those activities,35 which could be done exclusively by attorneys. this list includes legal representation, legal counselling, document drafting, etc. as a result, the act creates a monopoly where attorneys are the only professional group who can complete these activities. as mentioned above, the majority of legal services completed by students relate to the explanation of legal conditions, legal counselling and drafting legal documents. some of these services are also in the list of activities, which can only be done by attorneys. therefore, legal clinic activities should be part of the curricula of the legal education (legal clinic is an optional course; the students get credits for their work), otherwise, universities and their students would breach the above-mentioned act, since they act as attorneys. if such clinical activity is part of the students’ education, the universities did not violate the law, because its purpose is educational. although, such hungarian regulation impedes the work of legal clinics (because it monopolizes legal drafting and legal counselling to attorneys and pro bono work is not widely spread in hungary, and the underrepresented, marginalized groups cannot afford to hire a lawyer) they still achieve not only their educational, but social purposes as well. however, in poland, an act on free legal assistance, which came into 35 section 2 act lxxviii of 2017 on the professional activities of attorneys-at-law practice report 250 force in 2016, includes students with three years of experience as professionals, who can provide free legal assistance.36 such action of the polish legislator recognized the role and importance of students and legal clinics. conclusions in hungary, the new decree of the minister responsible for higher education defined uniformly the educational output requirements for students. these requirements can be divided into four components: professional (cognitive) knowledge, skill/proficiency, professional attitude, autonomy and competence relevant to responsibility. clinical legal education can greatly contribute to the accomplishment of these requirements. the students acquire many lawyering skills through their clinical work. it is evident that the traditional way of teaching alone is inadequate to transfer professional skills to students. the universities have to introduce new, practice-oriented teaching methods e.g. mediation, legal clinic, legal argumentation techniques, in order to accomplish those requirements, which were defined in the decree. a wide variety of legal clinics exists, so law faculties can choose one which fits into their institution and curricula best. however, there are many hindering factors, which are impeding the growth of clinical legal education in hungary. approximately, 210 36 in january 2016, free legal assistance will be launched throughout poland https://www.premier.gov.pl/en/news/news/in-january-2016-free-legal-assistance-will-be-launchedthroughout-poland.html https://www.premier.gov.pl/en/news/news/in-january-2016-free-legal-assistance-will-be-launched-throughout-poland.html https://www.premier.gov.pl/en/news/news/in-january-2016-free-legal-assistance-will-be-launched-throughout-poland.html practice report 251 240 credits out of 300 come from theoretical lectures, so legal education still belongs to that sector of higher education, where the need for theoretical knowledge is high. most newly graduated students do not have the skills and knowledge required by the labour market. as the tuning report already pointed out, the biggest gap between the employers and newly graduated lawyers is that the employers have the ability to apply their knowledge in practice. cooperation between law faculties and practitioners could solve this problem. if demand meets supply, newly graduated students could find a job more easily. in addition to the curricula, the second factor is the teaching methods. traditional knowledge transmission teaching is still typical in hungarian legal education. the strong tradition of textualization makes the spread of alternative educational methods difficult. furthermore, students get used to being passive characters in public/legal education, since they do not question the curriculum and are afraid to form their own opinion about the legal system. the third hindering factor is the attitude and position of the teachers. in the eyes of students, teachers are an authority figure, rather than a mentor or facilitator. despite these hindering factors, three law faculties integrated clinical legal education into their curricula. other law faculties also had legal clinic courses, but after a few years, each of them ceased to exist for different reasons (e.g. for lack of financial support/qualified teachers). alternative educational methods are more expensive than the traditional ones, since they need more and special equipment and the professor of the clinic has to participate in special training which means additional financial practice report 252 burden to the university. the european union and the visegrad fund recognises this problem and provide scholarships in order to help maintain the existing legal clinics and establishing new ones. unfortunately, the hungarian regulation impedes the work of legal clinics, since the act on the professional activities of attorneys-at-law provides monopoly for a couple of legal activities to attorneys. the act enumerates these activities, and some of them, e.g. legal counseling, legal document drafting, are also part of the legal clinic’s work. therefore, faculties have to focus on the educational goal of the legal clinic respecting this mandatory monopoly. every hungarian legal clinic is a live-client type, so the social purposes of legal clinics’ are still present, since students are providing legal assistance to those, who cannot afford the cost of a lawyer. summing up, the legal clinic in hungary is still a new phenomenon, only a small percentage of students participate in it. for example, at the university of szeged every semester an average of 10 students choose the legal clinic course. in comparison with the u.s., where three-quarters of students participated in at least one legal clinic course, there is room to grow. in the 2017-2018 academic year, 83% of the students participated in legal clinic activity at harvard law school.37 there is a long way to go for hungarian legal clinics, but the endeavour of the law faculties and the commitment of certain teachers give us a reason for confidence. 37 in-house clinics: https://hls.harvard.edu/dept/clinical/clinics/in-house-clinics/ https://hls.harvard.edu/dept/clinical/clinics/in-house-clinics/ practice report 196 simulated and real-world experience – the challenge of adapting practice in clinical legal education in unprecedented and challenging times kaye howells1 march 2020 was undoubtedly the beginning of unprecedented and challenging times for all. from an education perspective, such challenges have resulted in the re-design of module delivery, consideration of how we ensure the students receive high-quality teaching and are afforded the same opportunities, albeit within a virtual environment. this paper will consider the challenges faced and how we can adapt practice in cle in these unprecedented and challenging times. professor richard lewisstates “the main advantage of clinical education is that compared to traditional teaching methods, it involves a different approach to the learning of law: it encompasses experiential learning or “learning by doing” 2. it is taught through both simulation and real-world experience across universities worldwide, such teaching (until march 2020) to the best of my knowledge, predominantly being face-to-face. however, whilst there is emphasis on “learning by doing”, where 1 kaye howells is a senior lecturer in law and student legal advice centre lead at the university of derby. 2 richard lewis (2000) ‘clinical legal education revisited’ dokkyo international review 13, 149 practice report 197 does it state that such learning by doing must be through face-to-face interactions? the issue as educators is how we continue to ensure the same level of experience for the students through a virtual environment. however, that does not come without some challenges. i commenced my career in higher education in september 2018 when i joined the university of derby’s law school. my primary role was to establish the student legal advice centre and develop the clinical legal skills (cls) module. prior to joining the world of academia, i was a practicing solicitor for 14 years, predominantly in child protection. how the cls module was delivered pre covid-19 the academic year 2019/20 saw the first year of the cls module and the operation of the centre. the centre is open all year round, bar one week at easter, two weeks in the summer and two weeks at christmas. during the academic year 2019/20, the teaching of the cls module was conducted face-to-face. similarly, the students conducted face-to-face appointments with clients in the centre. the module is a 40credit bearing module. the module is designed such that all students undertake some level of simulation prior to undertaking real world experience. the schedule of delivery includes 3 hour lecture/workshops for 12 weeks in the autumn semester and 6 hours of tutorials within the second semester, with emphasis on the work the students carry out within the student legal advice centre contributing significantly practice report 198 to the hours the students are required to complete. as the supervising solicitor and module leader, i also met with the students following client interviews to reflect and also to put together an action plan in respect of the client’s case. march 2020 brought about significant changes, with the remaining teaching weeks of the academic year being moved to online delivery and clients being offered appointments online via microsoft teams. at the point of lockdown in march 2020, the centre was temporarily closed. however, within six weeks a decision was made to move the provision online. i canvassed with the students enrolled on the cls module to find how many could commit and feel confident with continuing to work in the centre through online client meetings. i was confident in their ability having taught them and worked with them in the centre since september 2019. several students confirmed their commitment to continuing to work within the centre. the plan for summer training pre covid-19 i had timetabled voluntary student legal advice centre training for june 2020. at the point of timetabling, such training was to be delivered face to face. this was for students who wanted to shadow over the summer months. i hoped it would be particularly appealing for those intending to take the module this academic year. due to covid-19 i informed students i would deliver the training online. disappointingly, few students attended. those that did attend expressed the view practice report 199 that the online element had been off-putting for some. this caused me some concern as to what effect such view would have on the number of students who enrolled on the cls module this academic year. despite low student numbers, i was able to keep the centre open during the summer months. of note is the number of students enrolled on the cls module this academic year in comparison to last. 29 students were enrolled on the module 2019/20. this year 14 students are enrolled on the module. the theme from student feedback is that the online nature of what is such a practical module was off-putting for some students who had previously shown interest in the module. preparation and planning preparation and planning during the summer months for delivery of the cls module this academic year has been key. the cls module continues to be afforded the same timetabled hours this semester as to that of the previous academic year. however, the 3-hour weekly lecture/workshop is wholly delivered online. the university of derby has made a commitment to the students to provide 3 hours of face to face teaching per week of the semester (subject to any change in government guidelines). in the final year of the llb at derby, students study one 20 credit core module (equity) and then have a number of optional modules of their choice. due to the range of optional modules available and a varying number of students across the cohort taking different options, the only viable option for the 3 hour face to face provision was to attach the practice report 200 those 3 hours to equity, the core module. from a timetabling and room booking perspective it was not viable to offer face to face across the optional modules. thus, all optional modules, including the cls module, are delivered online at this current time. part of the preparation for the move to online delivery involved re-examining the module specification and schedule of delivery to adapt the schedule, ensuring it complimented online delivery. in doing so, i considered the potential challenges to include: ensuring active engagement from the students online, a positive learning environment and inclusivity. as both the module leader and supervising solicitor for the student legal advice centre, i would need to be satisfied that the students are competent enough to become client facing, albeit in a virtual environment. educating those delivering aptly put by beech, “most tech-platforms supporting higher education are wellmatured and mainstream. yet, problems can arise if the processes and people underpinning them have been slow to catch up.’3 whilst the technology is available, clearly the onus is upon those delivering to ensure they have the skills required. i confess that pre covid-19 my use of different technologies, particularly in my 3 diana beech. ‘time for “co-opetition”? unleashing the benefits of technology in higher education.’ (12.03.18) higher education policy institute. https://www.hepi.ac.uk/2018/03/12/time-co-opetitionunleashing-benefits-technology-higher-education/ https://www.hepi.ac.uk/2018/03/12/time-co-opetition-unleashing-benefits-technology-higher-education/ https://www.hepi.ac.uk/2018/03/12/time-co-opetition-unleashing-benefits-technology-higher-education/ practice report 201 teaching was arguably quite limited. i therefore welcomed the announcement at the end of the last academic year that teaching staff at the university of derby were expected to engage with the off-campus digital learning course during the summer months. the course was designed such that the following learning outcomes would be achieved: 1. apply a designed approach to help students navigate effectively through module content and activities 2. design and deliver an effective blend of synchronous and asynchronous learning experiences for students 3. apply a range of approaches to enable the socialisation of students in the offcampus digital learning space 4. design and deliver active learning approaches with and between students 5. deploy appropriate tools to ensure the accessibility of your course materials there was an expectation that each academic would participate in all activities, to assist in supporting their own learning with others in specified groups from different disciplines. the course content was designed to prepare academics for their roles as a module tutor, teaching students in an online setting. to achieve course attendance sign-off by the facilitators, engagement with the activities set was compulsory, as was the drafting of a high-level module plan. the high-level module plan included practice report 202 breaking down in detail what would be covered in each asynchronous and synchronous session for each teaching week of the module. engaging in the course and completing the activities undoubtedly assisted in my preparation for the coming academic year. it enabled me to consider method of delivery and engagement of the students, which was of particular concern to me in respect of the cls module, given the practical nature of the module. whilst some may have been au fait with the terms “synchronous” and “asynchronous”, it was new terminology for me. drafting the high-level module plan enabled me to be specific within the plan as to subject matter/area to be covered and how, be it synchronous or asynchronous. completing the off-campus digital learning course enabled me to be more prepared in terms of delivery of the module. engagement with the course also gave me the opportunity to experience the course from a learner’s perspective, which i think is invaluable and enhanced my own abilities. given the challenges of covid-19, i have become much more aware of the technologies available to assist in the delivery of teaching. arguably, the current climate has forced my hand, which can only be a positive. beech suggests that technology “enhances collaborative learning and helps institutions to maximise opportunities…. it also enhances student experience by allowing students to adapt to practice report 203 new learning environments and be much more creative.”4 arguably therefore we are enhancing the student experience through either blended or solely on-line delivery. increasing the use of technology within teaching practice, also acknowledges the fact that technology is undoubtedly a driving force in terms of employment and therefore, we are preparing the students for professional practice. the significance of the learning environment and student engagement – formal and informal learning spaces in the short number of weeks of delivering online during the last academic year, feedback was that students were less confident, and my own experience was that there was less student engagement in sessions. i was therefore concerned about ensuring how i could facilitate student engagement this academic year and gave specific thought to the learning environment. in preparing for delivery of the cls module, i considered how i could provide both formal and informal learning spaces for the students and continue to encourage a learning community amongst them. as a starting point, i introduced a discussion board, a ‘café forum’, to encourage students to engage and communicate with each other. furthermore, to provide variety and an alternative, i set up a team on 4 ibid practice report 204 microsoft teams, with the students being encouraged to perceive it almost like a firm of solicitors and a virtual office space in which to engage with each other. the café forum is set up as an informal meeting place for students to share their views and experiences. i have also introduced other discussion boards throughout the semester (with more planned throughout the academic year) which encourage discussions around specific topic areas students are learning about during the module. for example, one discussion board is titled “reflection in clinical legal education”. the students are encouraged to share articles about reflection and comment upon those articles. a further example is a mid-semester discussion board encouraging students to share experiences of their work in the centre to date. one element of the assessments for the cls module is a reflective essay. in planning the module, i was of the view that such discussion boards would encourage student engagement with each other, whilst assisting in preparation for assessment as well. students have responded well, albeit initially through eager encouragement from me. i also respond to the threads within the discussion boards to encourage the students further. the formal learning space (being the 3 hours weekly timetabled sessions) are delivered through blackboard collaborate. this enables me to deliver to the cohort, share material on screen and importantly, utilise the ‘breakout rooms’ for the workshops. i have found use of the breakout rooms an excellent mechanism for encouraging group discussion in smaller groups, which has proved an effective way practice report 205 of the groups then reporting back to the whole cohort in the ‘main room’. simple use of the poll tool has also proved to be an excellent way of measuring student engagement and a tool i use frequently! is ensuring inclusion more challenging in online delivery? one of the core elements of the university of derby’s teaching and learning strategy5 is in respect of inclusion. it is our responsibility to: “promote inclusive and flexible learning provision which meets the diverse needs of different learners, and provide an environment in which learners are effectively supported in their transition through the different stages of their higher education journey.”6 whether delivering face to face or online, there is a commitment to ensure inclusivity. however, i raise the question as to whether it is potentially more challenging to ensure inclusivity within an online environment. gauging a student’s engagement, understanding and learning needs in a face to face setting is arguably less challenging. perception of student complexities are perhaps more apparent in a face to face setting. 5 university of derby learning and teaching strategy (2016-2020) https://www.derby.ac.uk/media/derbyacuk/assets/organisation/about-us/learningenhancement/documents/learning-and-teaching-strategy.pdf 6 ibid https://www.derby.ac.uk/media/derbyacuk/assets/organisation/about-us/learning-enhancement/documents/learning-and-teaching-strategy.pdf https://www.derby.ac.uk/media/derbyacuk/assets/organisation/about-us/learning-enhancement/documents/learning-and-teaching-strategy.pdf practice report 206 in considering inclusivity and giving thought to challenges, i queried whether i could demand a student turns on their camera during online delivery. this may seem a relatively basic query to raise. however, it is a topic of discussion amongst educators. tabitha moses of wayne state university highlights: “although sticking with remote instruction may be the correct decision from the standpoint of public health, it is not without problems.” 7 she suggests that “online instruction can pose a range of challenges for students if they are required to keep their cameras on”8 and lists such challenges as follows: 1. increased anxiety and stress 2. ‘zoom fatigue’ 3. competing obligations 4. right to privacy 5. financial means (the assumption a student will have access to technology with camera access) i propose that this is a challenge we face in delivering cle. i submit that there is a preference for eye-contact and understanding body language, which clearly cannot be gleaned where students choose not to turn their cameras on, appreciating of course 7 tabitha moses ‘5 reasons to let students keep their cameras off during zoom classes’ (17.18.20) the conversation https://theconversation.com/5-reasons-to-let-students-keep-their-cameras-off-duringzoom-classes-144111 8 ibid https://theconversation.com/5-reasons-to-let-students-keep-their-cameras-off-during-zoom-classes-144111 https://theconversation.com/5-reasons-to-let-students-keep-their-cameras-off-during-zoom-classes-144111 practice report 207 such as the identified challenges listed above. i am of the view that it is preferable where meetings are held with clients for student legal advisors to be visible. at the initial online session of the module this semester, i raised the concept of cameras with the students. i shared my preference for the use of cameras during some of the workshop elements of the module, in particular for example during simulated exercises. i also informed the students of the expectation of the use of cameras during client interview. i ensured that i justified my reasoning for the said expectation. furthermore, i also wanted to reassure the students that if this would be cause for concern for any one of them, i would meet outside of the group setting to have a private discussion. students have responded well to my request to date. there continues to be a reluctance for the use of cameras as a norm within class but where students meet with me individually for supervision or meet with clients, they have been happy to leave their camera on and can see the benefit, particularly in client interviews, to being able to make eye contact as it were. continuing to afford simulated and real-world experience in online delivery pre covid-19, students had the opportunity to engage in simulated and real-world experience through face to face delivery. this academic year, the students enrolled on the cls module continue to be afforded the opportunity of both simulated and realworld experience, albeit on an on-line platform, either via microsoft teams (when meeting with clients) or blackboard collaborate (when taking part in simulated practice report 208 interviews). currently, i schedule the client meetings through microsoft teams and have an option to join the meeting should i wish to do so. whilst there is the option to join, i have reservations about the concept of joining the client meetings even in an observer role. my concern is that being present in the interview could have the potential to negatively impact upon the client relationship with the student legal advisors and in my view, potentially place the students under additional pressure. as the supervising solicitor of the centre, i meet with the student legal advisors prior to the client meeting commencing for supervision (the student advisors also receive an email in advance, setting out the nature of the client meeting). i then meet for supervision following client interview. this assimilates to the structure pre covid19, albeit such meetings are now conducted through online platforms. i am of the view that there is a place within cle for both simulated and real-world experience be that face to face or through online provision. i share the view of marson, wilson and van hoorebeek that “no simulation or classroom based session can offer the student a true insight into the pressures and at times exhilaration of legal practice and this experience can only assist in producing better prepared trainee lawyers”.9 all educational institutions are driven by wanting to ensure graduates leave with the academic and practical skills to enable them to be successful on their journey into a 9 james marson, adam wilson & mark van hoorebeek, m. (2005) ‘the necessity of clinical legal education in university law schools: a uk perspective’ (2005) 7 int’l journal of clinical legal education 29 practice report 209 chosen profession. there is an increase in the use of technologies within the legal sector. therefore, delivering cle through online learning and through students advising in the centre through an online platform, students are being provided with the opportunity to graduate with the skills and attributes that will be demanded by employers. where technology fails us…. at a very recent client appointment, it became apparent that the lead student legal advisor’s microphone was not working. the other student legal advisor had not previously shadowed a live interview and had limited experience of simulation. i was therefore of the view that it would be inappropriate to expect him to lead the first interview. in the circumstances, i made the decision to lead the interview but essentially in the role of a student legal advisor as opposed to that of a solicitor. our student legal advisors must not provide legal advice during their client meetings, such advice is provided in writing following the interview, to ensure it has been approved by me as the supervising solicitor before being sent to the client. in this instance, i was of the view that it was more beneficial for the student to observe me conduct the interview in the manner he would be expected to. the same level of service was being provided to the client in any event. perhaps, very simply, a risk of online delivery, be that through teaching or in a clinic setting, there is always the potential for technology to fail us! practice report 210 access to justice it would be remiss of me not to consider the significance of cle in delivering access to justice. when i deliberate about what was intended when the student legal advice centre was launched, the purpose was three-fold: i) to provide the students the opportunity through clinical legal education to develop knowledge and practical skills by providing advice and assistance to the public ii) to provide the community of with free advice and assistance iii) to signpost clients where the expertise required to an individual case is beyond that of the centre the purpose and what was intended at the launch of the centre remains the same to date. in 2018, stevens, kerr & harper commented upon the future of law clinics: “technology could also lengthen the reach of law clinics to rural areas, offering a “virtual legal service”. this virtual process could be facilitated not only by skype and video conferencing but through the creation of an app that allows documents to be practice report 211 safely scanned and uploaded. with these tools in place, technology could be the way forward.”10 whilst technological advances within the student legal advice centre are yet to reach advances such as the creation of an app, i can comment upon my own experience of delivering the centre’s service through an online platform, in terms of increasing access for the public. prior to migrating the centre to an online service, all client appointments were face to face. the centre experienced a number of clients who failed to attend appointments without notice. since moving the service online, all clients have attended their appointments. clients are no longer perhaps having difficulty in physically attending appointments. furthermore, it is providing the opportunity to people who do not live within a comfortable travelling distance to utilise the centre’s services. when we initially moved the service online, i was concerned that we may see a reduction in the number of clients. for the students to gain the real-world experience we need to have the client base. fortunately, i can report that the centre continues to have a good client base and as stated above, is reaching out to people beyond the city and county. 10 adam stevens, zoe kerr and sarah harper, ‘the role of pro bono representation in allowing access to justice” (30.07.18) the writers were law student interns, participating in the ws society internship programme in july 2018. the article summarises their research and presentation. http://www.wssociety.co.uk/features/2018/7/30/8xxtiddcliks1s5sosak8jj9wfqzc9 http://www.wssociety.co.uk/features/2018/7/30/8xxtiddcliks1s5sosak8jj9wfqzc9 practice report 212 close at the time of writing, the students have experienced seven weeks of the first semester and the change in delivery methods. as previously discussed, delivery of the module is through blackboard collaborate. being relatively new to world of academia and lecturing has meant that the use of such technologies has been as equally new to me as it perhaps is to the students. i am elated (and admittedly relieved) to report a positive experience to date. through the use of tools such as polls, break-out rooms and asynchronously, the use of discussion boards the students are actively engaging with delivery. i have conducted simulated interviews using online platforms, which assimilates how students will see clients in the centre and again, this was a positive experience a view shared by the students. a challenge at the outset was around being satisfied as the module leader and supervising solicitor for the centre, that the students would be competent to become client facing. in such a short period of time, i am satisfied that the method of delivery combined with the student engagement enables me to ensure competency. despite the challenges of on-line delivery, we continue to afford the students the same opportunities, arguably more apt opportunities in line with how practice is developing. the collaborative community of practice within cle as a solicitor in practice sharing practice certainly was not common to me. however, when i joined the university of derby and started developing the student legal practice report 213 advice centre, it became very apparent that there was a strong support network of academics and practitioners in cle. i am sure i am not alone in the view that such a collaborative community of practice is invaluable. i am further of the view that such a network has strengthened as a result of covid 19 and that we can continue to share practice and learn from one another, which in turn will strengthen delivery of cle to our students. the continued provision of a pro bono service is key. the wider impact in terms of challenges of adapting practice in cle is to ensure in facing and overcoming any challenges, we do so to enable continuing effective delivery of cle to students and to enable the ongoing provision of clinics. we find ourselves in a changing landscape. whilst we face challenges in such times, it is an opportunity to embrace the change with positivity, to enable the continued development of clinical legal education and in turn continue to deliver access to justice. project1 unity in adversity: reflections on the clinical movement in south africa1 willem de klerk2 introduction not long after i joined the wits law clinic in january of 1997, i was seconded by our director to attend a workshop hosted by rhodes university law clinic in grahamstown. the workshop was to be presented by the association of university legal aid institutions, or aulai as it is commonly known.3 as a new recruit to our law clinic i barely knew of the existence of other university law clinics in south africa, let alone a national association of law clinics. no-one at our clinic bothered to inform me what the workshop was all about, and i, being only concerned really with the adventure of travelling to a beautiful part of the eastern cape, never bothered to ask. so, i set off to grahamstown in blissful ignorance of the events that were to follow, events that, as it turned out, shaped my involvement with law clinics in south africa. during those few days in grahamstown i met with lawyers working at law clinics from all corners of south africa, many of them from universities i had not even known existed. there were people from universities outside of south africa, including lesotho, swaziland and namibia, who were either intending to set up clinics or in the process of doing so. there were lawyers who had been in practice for twenty years, and those who were busy completing their articles of clerkship. some had their roots in academia and others had a long history of private practice behind them. it was a diverse group of people, all with one thing in common: they were all part of what has become known amongst clinicians in south africa as the clinical movement. for me, it was a revelation. at that particular workshop there was a huge dispute, concerning, as is often the case, money. the details of the dispute are not important, but what was interesting was the way in which this dispute unity in adversity: reflections on the clinical movement in south africa 95 1 paper delivered at the 5th international journal for clinical legal education conference held at johannesburg on 9–10 july 2007. 2 adjunct professor, university of the witwatersrand law clinic, willem.deklerk@wits.ac.za 3 on the history of aulai and the impact it has had on the clinical movement, see danny wimpey and shaheda mahomed “the practice of freedom – the south african experience”, paper delivered at the fourth international journal of clinical legal education and eighth australian clinical legal education conference held at london, july 2006 (copy in author’s possession). played itself out. after a session of unrestrained confrontation, tempers were calmed and by day two, everyone seemed to be the best of pals. as an outsider at that stage, i was most impressed at this apparent ability to overcome conflict and move on. in fact, it reminded me a bit of arguments amongst siblings, where peaceful coexistence must inevitably prevail for the simple reason that one is stuck with one’s siblings. over my years in the clinical movement i have witnessed on many occasions how law clinicians in south africa, irrespective of their diverse backgrounds, behave as members of the same family. one explanation for this cohesion amongst clinicians may have something to do with us as people. during that same grahamstown workshop, the organisers saw it fit to subject all of us to the myers-briggs type indicator4, a type of personality test that groups people according to certain personality preferences5. the results were quite interesting. it showed what seemed to be a trend amongst the clinical lawyers present to lean towards being the “feeling types” as opposed to the “thinking types”, meaning that when making decisions, we generally tend to first look at people and special circumstances, rather than at logic and consistency. the facilitators compared our results with that obtained from lawyers at a large commercial law firm and the results seemed to show that our group was indeed quite different from the typical commercial lawyer, who generally tends to be more of the “thinking type”. more recently, i was very interested to read a paper delivered by dr. colin james at the clinical legal education conference held in melbourne during july of 20056, where the learned author refers to research done on american law students. the research showed that, on the same myers-briggs type indicator, the vast majority of law students are the “thinking types” as opposed to the “feeling types”. it also showed that those who were more inclined to “feeling” were more likely to drop out of law school.7 so, maybe one of the reasons why clinicians seem to get on so well with each other is because it is a miracle any of us made it through law school! but i suspect that the reason why clinicians are inclined to bond, has a lot to do with external factors. in all the years that i have been practicing in the clinic, i have yet to find a simple answer to the question: “so, what is it that you do?” i have tried the “i am a lawyer” response, but invariably one is then confronted with the question “so, what type of lawyer are you?” somehow i don’t think it’s a good idea to answer “the feeling type”, so i normally say something like “i’m a public interest lawyer” or “i do work for the poor”. the usual response then, is “so then you’re a legal aid lawyer?” which is not right either as legal aid lawyers work in an entirely different environment. saying that i’m a law teacher or academic is dicey too, because the typical question then would be, “so what subject do you teach?” there is no clear answer to this question either, as clinical legal education is not a subject but a teaching methodology and besides, it’s usually not a good idea to delve into these issues with people whom you have just met. i suspect that this simple inability to describe what clinicians really do, in terms that are easily 96 journal of clinical legal education december 2007 4 for more information, see w w w. mye r s b r i g g s. o r g / my m b t i p e r s o n a l i t y type/mbti-basics (last visited april 2007). 5 these are: extraversion versus introversion; sensing versus intuition; thinking versus feeling; and judging versus perceiving. see ibid. 6 colin james “seeing things as we are – emotional intelligence and clinical legal education” paper delivered at the third international journal of clinical legal education and eighth australian clinical legal education conference held in melbourne, australia in july 2005. a copy of the paper is in the author’s possession. [editor’s note: a version of this paper can be found in [2005] international journal of clinical legal education 123–149]. 7 at page 5, footnotes 21 and 22. understood by most people, has a lot to do with the unity amongst them. law clinicians are fringe actors. they are largely institutional misfits, both in legal education as well as legal practice. law clinicians are not regular lawyers. regular lawyers have nice offices with comfortable chairs and offer their clients tea and coffee while they wait. regular lawyers have clients who arrive for consultations in motor vehicles, who live in proper houses and who have access to internet. they charge for what they do and generally will not do much unless they are paid for it. regular lawyers conduct a business. they have fee targets, overhead expenses and need to worry about things like marketing and competition. regular lawyers, generally, have little time to reflect on issues like social justice or access to legal services for the poor. law clinicians, while mercifully free from much of the day to day stresses that characterise the life of a regular lawyer, have other dynamics to cope with. being released from having to reach a monthly fee target is a welcome respite only until you are burdened with the huge demand for free legal services and the difficulties that come with public interest lawyering. clients at law clinics are generally poor, uneducated and marginalised from mainstream society. they tend to present to the clinic lawyer a rather large package of problems, half of which have nothing to do with the law and the other half so intertwined with poverty that their actual legal problems are often very hard to extract. formulating the mandate is only half the battle won, as the enforcement of clients’ rights pose particular difficulties, especially in south africa where many of our clients live in communities where the rule of law commands little respect.8 the cost of private legal services makes for an important distinction too. litigation is generally very expensive. this forces clients to carefully consider the parameters of the mandate given to the lawyer. with free legal services the temptation is too great to see, and treat, the lawyer as a general therapist or a debt counsellor or marriage counsellor. in clinical practice, clients often tend to give the lawyer the nearly unbearable mandate of simply ‘putting right what is wrong’, irrespective of legal complexities or the duration it might take. the challenge presented to the clinic lawyer is to fashion effective relief for clients whose lives and legal problems are so saturated with poverty, illiteracy and general disadvantage, that the law as a tool to fight injustice is often not very effective. another difference between regular lawyers and clinic lawyers is the instruments used to measure success. lawyers in private practice typically measure their success against the amount of fees they write during any particular period. clinic lawyers do not have any one clear and simple tool to measure of their success. some say we should look at the number of matters completed during any particular period, in other words, how many files you close per month. this is the favourite measure used by state funded legal aid lawyers and has resulted in many questions about the quality of their work. the problem of this measure is, of course, that is has no bearing on the complexity or quality of the work done. other say we should look at our success rate, meaning the unity in adversity: reflections on the clinical movement in south africa 97 8 one example of the breakdown of legal process could be found in issues around registration of ownership of immovable property, particularly in many of south africa’s former black townships. often, the deeds registry system is not applied, with the result that de facto ownership bears little resemblance to legally registered ownership. this is particularly problematic when it comes to intestate deceased estates, where the estate was never wound up and the lawful heirs have never received transfer of the property into their names. the property in the estate is often regarded by the heirs as a ‘family home’ and rights of occupation are determined arbitrarily by the stronger heirs. for one heir to exercise any rights to the property, a complex and time consuming set of legal procedures need first to be followed. even if these procedures are implemented successfully, the enforcement of occupancy rights is often sabotaged by the inability of the person to effectively take control of the property in communities where respect for the rule of law is absent. percentage of cases you conclude successfully. the problem with this approach is that it is very hard to define what should be considered a ‘success’ and what not.9 so clinic lawyers are often left to their own devices when it comes to judging their success, a rather subjective and unrewarding exercise. practicing law in a busy clinic environment without an effective method to judge success could easily lead to what we have seen and described as ‘burnout’. part of the challenge in being a clinical lawyer is to develop a sensible approach to your lawyering work and what it is you would like to achieve. but the most fundamental difference between regular lawyers and clinic lawyers is the fact that clinic lawyers use the practice of law as a vehicle to educate students. practicing law as a teacher is very different from practicing law as a purely commercial pursuit. the financial interest that a lawyer in commercial practice has in his or her legal matters is absent in a clinical setting, but is replaced by the educational interests of students. students pay good money to complete clinical courses and have legitimate expectations of the benefits they should receive in return. the teaching that takes place in a clinic should therefore never be incidental or secondary to the practice of law. teaching students remains the core business of law clinics. a good clinical lawyer must, for example, be aware of different approaches to lawyering10 but also his or her own approach, whether consciously or unconsciously adopted. a good clinical lawyer should communicate to students11 the different approaches and make them reflect on the relative merits or demerits of each. a good clinical lawyer should be an example to students on how to practice law professionally and ethically12. one purpose of clinical experience remains “to set a standard for the practise of law” and it is said that “even if in practice the standard cannot always be met, the student should now what the standard is.”13 a good clinical lawyer should be conscious of the educational significance of working with the poor. many law students come from advantaged backgrounds and have no first hand exposure to the needs of the poor. from university they may proceed to join a corporate law firm and build their careers in total ignorance of what is really happening at grass-roots level. the clinical experience forces students to assess the role of lawyers in society. this learning curve is particularly important in south africa, where there are vast disparities between rich and poor and where the majority of lawyers occupying senior positions in the legal profession today had been schooled at a time when the law was used predominantly as an instrument of suppression. in our new found democracy lawyers have a very important role to play. this role has been described by judge mahomed navsa14 as a “sacred duty to contribute towards the preservation and 98 journal of clinical legal education december 2007 9 rarely is the outcome of any particular case clearly definable as a ‘success’ or not. at the university of the witwatersrand law clinic, we have devised a range of possible outcomes when a file is eventually closed, including “partial success”; “abandoned”; and “no merit”, all of which are equally vague. 10 for example the ‘adversarial lawyer’; the ‘merchant lawyer’ and the ‘responsible lawyer’. see curran, dickson and noone “pushing the boundaries or preserving the status quo?” (2005) draft paper delivered at the 3rd international journal of clinical legal education conference held at melbourne, australia during july 2005 fn 29 to 34 (copy in author’s possession). [editor’s note: paper published at: [2005] international journal of clinical legal education, 104–122.] 11 ibid at fn 28–9. 12 ibid 13 see franklin “the clinical movement in american legal education” (1986) 1 natal university law and society review 55 at 66. 14 judge of the supreme court of appeal of south africa. strengthening of the rule of law in south africa”.15 judge navsa warned that, unless the constitution “has meaning in the lives of all our citizens, it is not inconceivable that it will wither and die”16. reflecting on these issues during university study is very important, and the clinic is the ideal place to do so17, for it is only once confronted with an actual client with an actual problem that the importance of concepts such as “justice “ and “equity” becomes real. a good clinical lawyer should therefore practice law in a manner that is conducive to reflection on the values and obligations of legal practitioners in society. law clinicians are not regular law teachers either, or, more specifically, they are not generally regarded by regular law teachers as regular law teachers. regular law school academics teach what is perceived to be regular law courses, such as the law of property, the law of delict (tort) or criminal procedure. regular law school academics are not, as a rule, concerned with the dynamics governing the practical application of what they teach18. regular law school academics enjoy permanent appointments as members of the academic staff with clear promotion tracks. most clinicians in south africa are appointed as non-academic staff members on externally funded contract positions and have no clear promotion track.19 moreover, clinical legal education is still seen by many law school academics as controversial and generally inappropriate in the law degree. to my mind, this approach defies all logic and i have yet to come across a coherent argument in defence of this approach. but as i understand it, the main reason why clinical programmes are deemed inappropriate at university level, is because they are perceived to be unity in adversity: reflections on the clinical movement in south africa 99 15 the statement was made during a series of lectures presented to final year law students at various universities around south africa during 2005. an edited version of this talk is contained as the introductory chapter in de klerk (ed) clinical law in south africa 2nd ed (2006) 1. 16 ibid at 2 17 roy stuckey for example formulates one of the educational objectives of clinical courses to be the “understanding the meaning of justice and the responsibility of all lawyers to strive to do justice”. see “ensuring basic quality in clinical courses” (2000) international journal of clinical legal education 47 at 51. 18 it has been said that “…the priorities of academic training for the (legal) profession are seen to be the imparting to students of a specialized body of knowledge as well as principles of theory organized systematically and the application of knowledge and theory to problem solving.” joan church “reflections on legal education” (1988) 1 tydskrif vir die hedendaagse romeins-hollandse reg 153 at 158. the lack of practical training during law school study is a topic of seemingly endless debate. for south african literature, see chaskalson “responsibility for practical legal training” (march 1985) de rebus 116; maharaj “the role of the law school in practical legal training” (1994) south african law journal 328; o’regan “producing competent graduates: the primary social responsibility of law schools” (2002) south african law journal 242 and woolman et al “’toto, i’ve a feeling we’re not in kansas anymore’” a reply to professor motala and others on the transformation of legal education in south africa” (1997) south african law journal 30 at 50–54. the issue has also been raised in other jurisdictions. see barry et al “clinical education for this millennium: the third wave” (2000) clinical law review at fn 141 where it is stated that “in the typical law school classroom, the world of practice is often regarded suspicion and sometimes even distain.” 19 peggy maisels tabled a detailed report in this regard at the south african law teacher’s conference held in 2000. in 2006 the uwc law clinic tabled a discussion report with its law faculty, detailing the employment conditions of clinicians are various clinics in south africa (copy of report with author). courses or subjects that deal in practical legal training, and practical legal training is traditionally seen to be the responsibility of the profession and not universities.20 the problem with this view is that it is premised on two incorrect basic assumptions. firstly, clinical legal education is not a course or a subject, as it is typically ‘packaged’ in the law degree, but is in fact a teaching methodology21. it is a process whereby knowledge, skills and values are combined in a live interaction with an actual client. academic legal education on the other hand uses the traditional classroom method of instruction as its predominant teaching methodology22, whereby law is taught in a systematically organised manner. it can be said that if academic legal education does business at wholesale, then clinical legal education does it at retail.23 the neatly packaged law as taught using the academic methodology is deconstructed using the clinical methodology, to expose students to the unstructured nature of law-in-action. clinical legal education is a methodology that transcends the artificial boundaries imposed by academic training. it is essential in demonstrating to students the difficulties in applying theory to practice. although these two methodologies are vastly different from each other, the ultimate goal of both is very much the same, namely to produce well-rounded and competent law graduates24. the second assumption, namely that clinical legal education is solely about practical legal training, is just plainly wrong. elsabe steenhuisen, formerly head of the university of johannesburg law clinic, in her research identified seven goals of clinical legal education, only one of which relates 100 journal of clinical legal education december 2007 20 this is particularly so in commonwealth jurisdictions where admission to the profession is subject to the completion of a period of internship post university study. joan church (op cit note 16 at 157) for example states that education for the legal profession is seen to encompass three main components, being “academic” instruction at university; “practical/professional” training during internship; and “continuing legal education” for post-admission training. see also a chaskalson “responsibility for practical legal training” op cit note 16 at 116–7 where the weaknesses of this system are exposed. the institutionalized prejudice against engaging with the practical at law school is however also prevalent in other jurisdictions. for example, the primary educational goals of law schools in the united states is said to “teach legal doctrine and analysis” with the case method of instruction still being the primary method of instruction and that “very few u.s. law schools have made a serious effort to integrate the teaching of knowledge, skills, and values…” see roy stuckey “the evolution of legal education in the united states and in the united kingdom: how one system became more faculty-oriented while the other became more consumer-oriented” (2004) international journal of clinical legal education 101 at 135. the most pervasive reason for this, seemingly illogical, state of affairs has nothing to do with the desirability or need for practical programmes at law school, but basically boils down to law schools seeking to preserve the benefits of the status quo. see kate o’regan op cit note 16 at 248 (the author uses the terms “institutional resistance to change”); hugh brayne “a case for getting law students engaged in the real thing – the challenge to the saber-toothed curriculum” (2000) 34 the law teacher 17 at 20. see also jeff giddings “unselfish acts: sustainability in clinical legal education”, paper delivered at the third international journal of clinical legal education conference held at melbourne during july 2005 (copy with author) at fn 193-4. 21 see roy t stuckey “ensuring basic quality in clinical courses” (2000) international journal of clinical legal education 47 at 49. 22 see woolman et al (op cit note 16 at 37 and further) where the results of a survey amongst law schools in south africa, dealing with teaching methods, are set out. 23 i have adapted the analogy used by jerome frank “a plea for lawyer-schools” 1947 (8) the yale law journal 1303 at 1310, where the learned author states that “never forget that courts do business at retail, not wholesale”. 24 producing competent graduates has been said to be the ultimate aim of university law schools. see kate o’regan op cit n16. see also osman “meeting quality requirements: a qualitative review of the clinical law module at the howard college campus” (2006) 2 de jure 252 at 265–6 where the author endorses a view by fox that “law schools exist to produce and deliver legal education in order to satisfy societal needs and demands for legal services”. to applied practice skills.25 roy stuckey of the university of south carolina school of law, in formulating his five most important educational goals of clinical programmes, does not even mention practical lawering skills.26 practical legal skills naturally do form part of what is taught during clinical programmes, but these skills are merely the tools used by the profession. applying these tools appropriately requires a thorough understanding of what law is all about. the problem with viewing clinical programmes as merely engaging in practical skills training, is that it amounts to a reduction of the educational goals of such programmes to being a purely unreflective activity, not worthy of a place in tertiary education. so it has been suggested, by some respected academics, that legal practice (and by implication, clinical legal education) is mostly about “form-filling, formfiling and, sometimes, form-construction”.27 if this is indeed what the practice of law is about, it begs the question why we need law schools at all. the different goals of academic methodology versus clinical methodology may be illustrated with the aid of following example: during academic study, the law of contract is typically taught (1) with a view to systematically teach students the body of law applicable to contract (knowledge of substantive law); (2) the manner in which the courts have applied specific aspects thereof (analytical skills and legal reasoning); (3) some reflection on how constitutional values may impact on the law of contract (reflection on values and justice) and (4) be required to write an exam or essay to demonstrate knowledge (writing skills). in the law clinic a student dealing with a dispute founded on contract will be taught: (1) how to recognise the relevant facts and applicable law (applied research skills and analytical skills); (2) the content of the specific legal rules applicable (knowledge of substantive law); (3) the ability to formulate a legal strategy in order to advance the client’s case based on the applicable law (problem solving skills); (4) the ability to gather relevant information and evidence to support the client’s case (factual investigative skills); (5) the ability to initiate appropriate legal procedure in order to advance the case (knowledge of procedural law); (6) the ability to draft the required documents (drafting skills); (7) the ability to quantify the client’s claim (numeracy skills); (8) the ability to counsel the client throughout the process (client counselling skills); (9) the ability to act in a professional and ethical manner in completing the process (knowledge of professional rules and values); (10) the ability to engage in this process in the context of a law practice, working with partners, supervisors and secretaries (learning and working in groups); (11) the ability to see and experience the needs of the poor and use of law to facilitate social justice (values and the role of lawyers in society) and finally (12) the ability to look back on the entire process in order to understand what happened and why, to evaluate choices made, to form connections and to gain insight into their own performance and the process (reflection). unity in adversity: reflections on the clinical movement in south africa 101 25 the seven goals of clinical legal education are said to be: (1) professional responsibility; (2) judgment and analytical ability; (3) knowledge of substantive law; (4) applied practice skills; (5) provision of legal services; (6) working in groups; and (7) integration of the goals. see elsabe steenhuisen “the goals of clinical legal education” in de klerk (ed) clinical law in south africa 2nd ed (2006) 263 at 266 and further. 26 op cit note 19 at 50–1. stuckey’s five educational goals are: (1) developing problem-solving skills; (2) becoming more reflective about legal culture and lawyering roles; (3) learning how to behave as well as how to think as a lawyer; (4) understanding the meaning of justice and the responsibility of all lawyers to strive to do justice; and (5) discovering the human effects of the law. 27 woolman et al op cit note 16 at fn 53. clinical programmes are not the same as articles of clerkship or pupilage at the bar.28 at the wits law clinic, as at many other clinics around south africa, we do both. quite often, we engage as article clerks the same students who completed the clinical programme the year before. there is a vast difference in the training of article clerks and the teaching of students in the clinical programme. it is incorrect to say that clinical programmes are superfluous or expendable at university level, because it is something that will in any event be taught during articles. students in a clinical programme are subjected to close supervision with structures in place to prevent harm to clients. every act by the student is, or should be, subject to scrutiny. students cannot be held professionally accountable for what they do. post graduate professional training, on the other hand, takes place with very little structured supervision. it takes place in an uncontrolled environment dominated by commercial and other considerations and much of it entails a general socialisation into practice. articled clerks or interns are registered with the law society; they are subject to professional rules and can be held accountable for what they do. not only are post graduate training and clinical programmes different in practice, they have entirely different goals. upon completion of articles, a candidate attorney would have passed a national admission exam, be admitted to membership of a professional society and be allowed to render professional services to the public. clinical programmes aim at achieving none of these results. what clinic does aim to do, in conjunction with academic legal education, is to produce a law graduate that is competent to engage in professional training with a view to admission, or to choose another career whilst having a firm grasp of law and its application in practice. academic legal education alone, cannot achieve this goal. clinical legal education and academic legal education are two sides to the same coin. without the one the other cannot profess to achieve the stated outcomes of the llb degree. it is like those old vinyl records, seven inch singles they were called, which contained the artist’s popular hit song on one side and a lesser known, maybe more experimental, song on the flip side. the flipside song showed what the same artist is capable of. it took the listener out of the comfort zone of keeping the beat to a hit song. not everyone liked the flipside song but it did serve to develop the listener’s taste in music and perhaps even stimulated the listener to experiment with other tunes. clinical education is the flipside of academic education. without it, there is nothing to compare academic education to and nothing to contextualise the theory of law. when these graduates enter practice, an entirely new record is put on the turntable with tunes so strange and different from those played at university, that they are utterly bewildered. such a one-sided and insulated education could surely not profess to be adequate. clinical legal education is not a novelty and neither is the institutional prejudice against it. ninety years ago william rowe had already formulated the need for and value of clinical education in the law degree.29 in 1947 jerome frank observed that law schools in the united states continue to shun anything to do with the practice of law “as if courts and lawyers would infect students with intellectual bubonic plague.”30 frank equated the (then current) teaching methods in us law 102 journal of clinical legal education december 2007 28 in the traditions of the split bar legal profession adopted from the english practice, articles of clerkship for the attorneys profession and pupilage for the advocates profession is required for entry to the respective professions. 29 see the discussion of an article by william v rowe entitled “legal clinics and better trained lawyers – a necessity” (1917) ill. l.r. 591, by phillip plowden “no new thing under the sun?”, paper delivered at the fourth international journal of clinical legal education conference held at london during july of 2006 (copy with author). 30 jerome frank “a plea for lawyer-schools” (1947) the yale law journal 1303 at 1313. schools to “future horticulturalists who restrict their studies to cut flowers” and to “prospective dog breeders who never see anything but stuffed dogs.”31 things are not much different today.32 i submit that the only thing controversial about clinical education is its continued relegation to the backbenches of legal education and its almost unique absence when compared to the university education in other professions33. there is another reason why clinicians are not regarded as regular academics. a large part of the work of academics, entails research and publication which, besides teaching, is the life blood of academia. from the early seventies when clinics first made their appearance in south africa, until the end of the nineties, very little in the way of publications emanated from local clinics. during this time, there were only a handful of local journal articles dealing with clinical legal education, all written by only two or maybe three authors.34 one may be forgiven for thinking that these authors verbalised the views of all clinicians in south africa. in reality, the clinical movement was developed by many full-time clinicians who were hard at work, doing everything except publish. it is therefore most encouraging to see the amount of journal articles published during the past few years by practicing clinicians around south africa.35 unity in adversity: reflections on the clinical movement in south africa 103 31 ibid 32 the underlying prejudice against educating students for practice was illustrated during a discussion at a law school staff meeting at the university of the witwatersrand during 2007. the background to this discussion was continued criticism of law schools by the organized profession for failing to teach students certain skills identified as lacking amongst young practitioners, and in particular numeracy skills. the discussion during the staff meeting was prompted by a survey which law schools were asked to complete, detailing the numeracy training offered in the law degree. there appeared to be immediate resistance to the idea that law schools should be held accountable in this regard. comments included statements to the effect that it is not the law schools fault that numeracy skills are lacking; that it not the law schools responsibility to address this problem, that there is no time in the four-year degree to engage in skills at this level; that it has not been shown that law students at wits really need such training and that it is not the purpose of the law degree to educate students for practice. 33 the criticism that law has lagged behind other professions has been raised by many, including william rowe (op cit note 26 at fn 5–6); church (op cit note 16 at 164) and chaskalson (op cit note 16 at 116) to name but a few. 34 by far the most prolific writer on clinical legal education in south africa, is professor david mcquoid-mason from the university of kwazulu natal. see for example “clinical legal education: its future in sa” (1977) 40 tydskrif vir die hedendaagse romeins-hollanse reg 343; an outline of legal aid in south africa (1982) juta & co; “the organisation, administration and funding of legal aid clinics in south africa” (1986) 1 natal university law and society review 189; “teaching social justice to law students through community service: the south african experience” in p.f. iya et al (eds) transforming south african universities (1999) at 89. other south african authors on clinical education during this period include philip f. iya and joan church. 35 during the past few years many active clinical teachers have had their research published in accredited law journals in south africa. the published research covers areas such as clinical methodology (see for example y vawda “learning from experience: the art and science of clinical law” (2004) journal for juridical science 116 and “lost in translation: language and diversity issues in clinical law teaching” (2006) de jure 295); the role of clinical teaching in the law degree (see for example w. de klerk “university law clinics in south africa” (2005) south african law journal 929 and “integrating clinical education in the law degree: some thoughts on an alternative model” (2006) de jure 244); quality review and assessment methods (see m. osman “meeting quality requirements: a qualitative review of the clinical law module at the howard college campus” (2006) de jure 252); substantive law dealt with at clinics (see for example r du plessis “a consumer clinic as a specialised unit” (2006) de jure 284 and case note by p. jordi de jure 455) and many others. 104 through research into areas such as clinical methodology, the structure of clinical courses, the educational outcomes and quality control measures, clinical programmes can only improve. through research into areas of applied substantive law, the specialised practices of clinics will become even deeper and the students will benefit from working with lawyers who are experts in their field of practice. in order for clinicians to up their publication output, law schools must however be accommodating. the average contact time of clinical teachers at wits law school is at least double that of academic teachers36 on top of which client files must be maintained during university vacations. the realities of clinical practice must be borne in mind by law schools when setting research targets for clinical teachers. in conclusion, it must be said that in south africa there has been significant progress in the acceptance of law clinics by the legal profession and academia over the past 35 years, since clinics first made their appearance.37 every law school in south africa offers a clinical programme and at more than half, the completion of the programme is compulsory for degree purposes.38 some clinics are more fortunate than others and enjoy remarkable support from their law schools. yet, the tolerance of clinics at south african law schools, i suspect, has a lot to do with the legal services they provide and not their educational value. the disparate conditions under which most clinicians are employed, is evidence to this effect. much of the strength of law clinics in south africa is drawn from their role in providing access to justice to the poor. access to justice is indeed a pressing issue in south africa where clinics have played, and continue to play, a very important role. but university law clinics are often still referred to as “legal aid clinics”39 and even the association of law clinics in south africa, aulai, still bears this label. many of the early writers on clinical legal education in south africa likewise preferred to use the term ‘legal aid clinics’ in reference to university law clinics. this preoccupation with law clinics as ‘legal aid institutions’ has resulted in a concrete ceiling being imposed on their educational activities. as the clinical movement in south africa approaches the end of its fourth decade of existence, one could only hope that the irrational prejudice against clinical legal education will come to an end and that clinical educators will be afforded equal partnership in the law school alongside their academic counterparts. perhaps then law schools could produce graduates that are truly prepared for entry to the legal profession. 104 journal of clinical legal education december 2007 36 i am told that the average contact hours of law school academics at the university of the witwatersrand law school is eight hours per week. the average contact hours of clinical teachers during 2007 is 23 hours per week, in addition to which candidate attorneys must be supervised and client files must be dealt with throughout the year. 37 for a discussion of the development of law clinics in south africa see willem de klerk “university law clinics in south africa” (2005) 122 south african law journal 929 at 930–2. 38 association of university legal aid institutions (aulai) annual report (2003) (copy on file with author). 39 the law clinic at the university of the western cape, for example, was known until very recently as the “uwc legal aid clinic”. reviewed article 103 client newsletters within clinical legal education and their value to the student participants lyndsey bengtsson1 abstract the employment law client newsletter project (the project) runs during each academic year within the student law office (slo) at northumbria university. under the supervision of their clinical supervisor the students research and design a newsletter for distribution to hr professionals employed by an external organisation. the students participate in the project alongside their live client work. the aim of the project is to enrich the students’ clinical experience and develop their skills whilst at the same time update and educate the client recipient. through a pilot study the value of participating in the project is explored. the findings of the study suggest that the students develop their professional skills from a different perspective, increase their employment law knowledge, gain the commercial awareness of the importance of a well drafted newsletter in practice, and really value the experience. key words: client newsletter, employment law updates, clinical legal education, legal education 1 lyndsey begtsson is a senior lecturer at northumbria university law school reviewed article 104 introduction client newsletters are often used by law firms to attract clients and retain existing ones by going that extra mile and show that they provide that added value service.2 recently, an employment law client newsletter project (the project) has been introduced into the employment law clinic within the well-established student law office (slo) at northumbria university. the slo provides full representation assistance to members of the public, giving students the ideal opportunity to develop their professional skills and preparedness for practice.3 the project was introduced with the dual aim of enriching a law student’s educational experience whilst simultaneously updating and educating the client recipient of the newsletter with topical and up to date areas of employment law. the students, under supervision, conduct the research and write a monthly newsletter for distribution to a third-party client organisation. in doing this, the students are exposed to key changes in employment law and they develop an understanding of how to tailor a newsletter, so it is relevant to the recipient and offers practical guidance on legal compliance. 2 zwicker, m.w. (1987) ‘successful law firm newsletters’ legal economics vol 13 p.56; pribek, j. (2011) ‘the firm: law firm newsletters still alive and kicking’ accessed at the webpage http://www.legalnews.com/ingham/908264 (accessed 18th september 2019). 3 sylvester, c. hall, j. and hall, e. (2014) ‘problem-based learning and clinical legal education: what can clinical educators learn from pbl?’ international journal of clinical legal education vol 4, p.39; dunn, r. (2017). ‘the knowledge, skills and attributes considered necessary to start day one training competently and whether live client clinics develop them’ doctoral thesis, northumbria university; cantatore, f. (2018) ‘the impact of pro bono law clinics on employability and work readiness in law students’ international journal of clinical legal education, vol 25, no 1, p.147. http://www.legalnews.com/ingham/908264 reviewed article 105 a pilot empirical study was undertaken in the academic year (2018-2019) in order to explore the pedagogical value of the project to the students. firstly, this article will provide background, including the considerations underpinning the project and explain how it was introduced as part of a clinical legal education (cle) module. secondly, this article will set out the methodology that was adopted to explore the educational value to the students. thirdly, this article will present findings from the study. finally, this article will discuss the lessons learnt from the project. background the student law office all students enrolled on the four-year m law exempting law degree4 at northumbria university undertake a year long assessed clinical module in the slo. in the slo they provide free legal advice to members of the public. the slo has been providing probono legal advice to members of the public for over 20 years and has secured over £1 million in compensation for clients in this time.5 4 this is a programme which combines the undergraduate law degree with the requirements of the legal practice course or bar practitioner training course. 5 information about the student law office can be accessed at: <https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-lawschool/study/student-law-office/> (accessed 21st july 2019). https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/ https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/ reviewed article 106 all work is carried out under the supervision of qualified practitioners and around 200 students work in the clinic each academic year. students are allocated to a group of around eight, referred to as ‘firms’. students specialise in their supervisor’s area of expertise, such as employment law, family law, housing law, welfare benefits and civil litigation. each year sixteen students undertake clinical work in employment law under the author’s supervision, offering a range of advice and assistance to both employers and employees. typical employment law enquiries include requests for advice concerning the fairness of a dismissal, non-payment of wages, discrimination and drafting contracts of employment. the work ranges from initial advice to full representation at an employment tribunal hearing. the slo continually looks for ways in which the students clinical experience can be enhanced. for example, blog articles have been successfully introduced in the slo6 and an innovative policy clinic has been incorporated.7 in order to enrich the student’s experience within the employment law firms, the project was introduced in autumn 2017. the project was incorporated in addition to their live client casework and utilises the slo procedures and systems, for example the storage facility and electronic networks. 6 see roper, v. (2018) ‘blogs as teaching tool and method of public legal education: a case study’ international journal of public legal education vol 2, no1, p. 46. 7 in the policy clinic, the students undertake empirical research under the supervision of their supervisor and for a third-party client with the ultimate aim of contributing to law and policy reform. the policy clinic is designed to develop the students’ skills in an alternative way, and from a different perspective to that of the live client model. reviewed article 107 client newsletters in cle although there is extensive literature on the educational value of the use of cle, 8 there is a dearth of literature on the use of client newsletters in cle. there is some literature, which sets out the educational benefit and marketing advantage of newsletters to law firms and businesses more generally.9 there are also online examples of law firm newsletters, which are available to the public.10 as bitas comments ‘legal training must bear a relationship to legal practice….as the contours of the latter change, so, too must the former.’11 therefore, if law firms are using newsletters as a means of connecting with their clients and educating the public; then law students are likely to find themselves, one day, contributing to their firm’s newsletter. by gaining 8 alexander, j. and boothby, c. (2019) ‘stakeholder perceptions of clinical legal education within an employability context’ international journal of clinical legal education vol 25, no 3 p. 53; thanaraj, a. (2016) ‘understanding how a law clinic can contribute towards students’ development of professional responsibility’ international journal of clinical legal education vol 23, no 4 p. 89; hall, j. and kerrigan, k. (2011) ‘clinic and the wider law curriculum’ international journal of clinical legal education, vol 15, pp.25; giddings, j. (2008) ‘contemplating the future of clinical legal education’ griffith law review vol 17, issue 1, pp.1; marson, j. wilson, a. and hoorebeek, m.v. (2005) ‘the necessity of clinical legal education in university law schools: a uk perspective’ international journal of clinical legal education, vol 29, no 7, p.29; grimes, r. (1995) ‘legal skills and clinical legal education’ web journal of current legal issues, vol 3. 9.zwicker, m.w. (1987) ‘successful law firm newsletters’ volume 13 legal economics, p.57; pribek, j (2011) ‘the firm: law firm newsletters still alive and kicking’ accessed at the webpage http://www.legalnews.com/ingham/908264 (accessed 18th september 2019); thomas, a. darroch, j. and galvin, w. (1999) ‘client newsletter use by new zealand law firms’ journal of professional services marketing vol 19, issue 2, p.51. 10 see, for example, there are brexit updates provided by law firm womble bond dickinson accessed at the website https://www.womblebonddickinson.com/uk/insights/timelines/brexit-countdown (accessed 24th september 2019). burges salmon provide employment law updates for employers, hr professionals and in-house lawyers on their website https://www.burges-salmon.com/news-andinsight/legal-updates/employment-law-updates/ (accessed 24th september 2019). 11 bitas, b. (2012) ‘comparative law and 21st century legal practice – an evolving nexus’ the singapore academy of law journal vol 24, p.319, p.331. http://www.legalnews.com/ingham/908264 https://www.womblebonddickinson.com/uk/insights/timelines/brexit-countdown https://www.burges-salmon.com/news-and-insight/legal-updates/employment-law-updates/ https://www.burges-salmon.com/news-and-insight/legal-updates/employment-law-updates/ reviewed article 108 experience of preparing newsletters for clients in the clinical environment, they are therefore developing legal research and writing skills in this context and are better prepared for similar tasks they may face in practice. they are also being equipped with the commercial awareness of the importance of newsletters. from the author’s own experience of legal practice, law firms frequently use client newsletters and client feedback was that they found them helpful in understanding a particular area of law. the client newsletters also kept the law firm in the forefront of their minds should they ever need legal assistance again in the future. it is acknowledged that not all law students wish to enter legal practice. however, by being involved in the project it is hoped that the students nevertheless develop the professional skills that they will need for the world of work (teamwork and written communication to name a couple). the project during the first year of the project, there were 14 participating students and in the second year this number increased to 16. the newsletters are produced by the students for circulation to an hr department of an external organisation. the author approached this external organisation to offer the service of the project before it began. the author considered that hr advisors were ideal client recipients as their day-today role involves understanding and applying employment law in respect of a wide range of key issues such as managing disciplinary action, grievances and employee reviewed article 109 health issues. they must keep up to date with the law and ensure that their employer organisation is legally compliant. the author was also conscious that many enquiries into the slo are from employees, therefore giving the students the experience of doing newsletters from an employer viewpoint would offer them a different client perspective. the newsletters were read by a total of 20 hr and senior managers within the external organisation during the 2018/2019 academic year. given the slo advises many employees, the author was concerned of the need to identify potential conflicts of interest in producing the newsletters. to alleviate this concern, an email was sent to all slo supervisors to inform them of the project and to request that they notify the author to discuss all enquiries against this third-party organisation. this would ensure that any potential conflicts are identified by the slo team. the students are the content creators; therefore, they write the newsletters with the intention of them being read by the hr individuals external to the university. the students are divided into small groups of three or four and each group of students produces one newsletter between the months of november to april. consequently at least four newsletters are produced throughout the academic year. the remaining two newsletters during this time period are created by student volunteers from within the employment law firms. each student therefore has the opportunity to contribute to at least one newsletter. reviewed article 110 in line with the constructivism theory that students learn best when they are given the opportunity to build their knowledge,12 the students are asked to decide on the topics of each newsletter and to write the newsletter without any significant guidance from their supervisor. therefore, they act on their own initiative without their supervisor suggesting what topics to cover. the supervisor then approves the draft of the newsletter by ensuring that the legal content is correct and more generally that the written communication is clear and free from spelling and grammatical errors. before the students begin their newsletter, they are informed (by their supervisor) that they should tailor the content to suit the recipient’s needs and to avoid legalese. in order to avoid duplication of content and ensure sufficient variety, each group circulates a list to the other students of what they will cover in their newsletter at the beginning of the month and a final version of the newsletter at the end. client newsletters are a flexible tool and can be easily adapted to suit the recipient’s requirements. topics students have chosen to write about include the following: what constitutes a reasonable adjustment for disabled workers,13 managing long and short 12 exley, k. and dennick, r. (2004) small group teaching: tutorials, seminars and beyond, london, routledge, p.5. 13 the students gave guidance on the duty under the equality act 2010 upon employers to make reasonable adjustments for employees who have a disability and factors to consider when assessing if a potential adjustment is reasonable or not. reviewed article 111 term sickness absence,14 legal obligations in respect of breastfeeding mothers15 and the government’s good work plan.16 each newsletter typically covers around four to five updates on different topics. as well as covering legal updates, students also include talks and seminars that are being held at northumbria university which may be of interest to the recipients. the newsletters summarise legal developments and provide some practical guidance on how to ensure legal compliance. the newsletters also signpost readers to sources of reliable online guidance they can look to for further information. being mindful that the newsletters could not (and should not) be a substitute for advice from a qualified legal professional, each newsletter contains a statement confirming that it is intended for general information only and that legal advice must be obtained. the client value in the newsletters lies in providing legal updates, informing recipients on legal responsibilities, and more generally, identifying issues that may need considering further either by way of further research or by obtaining bespoke legal advice. 14 the students explained the decision of a recent european case and set out what this decision meant in respect of carrying out risk assessments for breastfeeding workers. 15 the students summarised the legal position of employees who may be absence or current whereabouts are unknown and gave general guidance on how to deal practically with such a situation. 16 the students set out the policy and legislative changes from the government paper published in december 2018, focussing on areas that would most benefit the recipient such as the additional obligations placed upon employers. reviewed article 112 at the end of the module, the newsletter forms part of their assessment. in the slo the students are assessed on a wide range of activities undertaken throughout the year (including written communication, teamwork and personal contribution to the slo and to their clients). their practical work is evidenced by a portfolio and accounts for 70% of their overall mark.17 their contribution to the newsletter forms part of their portfolio and this mark. the students are also assessed on two reflective18 essays worth 30% of their overall mark.19 on introducing the project, the author hoped that it would also assist in their reflection of the module as they could compare and contrast their different experiences of live client work and employment law newsletters. the usefulness of the project for assessment may also expand to the students reflecting from their peers’ experiences given that they all take turns to produce a newsletter. 17 the assessment criteria for the portfolio is divided into 10 descriptors: autonomy and efficiency, knowledge and understanding of the law/legal practice, oral communication skills, written communication skills, research skills, commitment to clients and the student law office, case management and strategising, time and case management, teamwork and contribution to firm meetings and understanding of client care and professional conduct. however, in the current academic year this has changed to 9 descriptors as the students are no longer directly assessed on autonomy and efficiency. although autonomy and efficiency does permeate throughout the other grade descriptors. 18 reflection is a tool that clinicians use to help students learn how to learn from their clinic experience. see ogilvy, j. p., and stuckey, r. t. (2007). best practices for legal education: a vision and a road map, clinical legal education association. 19 in the current academic year this has changed to a reflective presentation to encourage deeper reflection. see thomson, c. and others (2019) ‘the hall of mirrors: a teaching team talking about talking about reflection’ the law teacher vol 43 issue 4, p.513. reviewed article 113 considerations underpinning the project the incorporation of the project was underpinned by the following considerations. firstly, the author hoped that it would have pedagogic value by developing the students professional skills. the project could encourage the development of hard skills and soft skills. 20 for example the students work as a team in order to carry out the legal research and analyse and interpret case law and legislation. the students gain the opportunity to enhance their research skills because they are exposed to not just to an area of law from the viewpoint of a single client, but a holistic viewpoint of all recent developments in employment law. they can identify recent developments and practical implications, areas of law that in the day-to-day role of hr may be problematic and more generally, what legal changes are on the horizon. it may also drive their appreciation of the need to keep developing their knowledge of the law in future practice. the interaction between the casework and the project also improves their general performance in the slo, as it leads to an increase in their legal knowledge and engages the student in the wider operation of the legal system.21 20 soft skills are growing in importance for legal professionals. see kiser, r. (2017) soft skills for the effective lawyer cambridge university press; future of law blog (2015) ‘taking soft skills seriously’ accessed at the webpage https://www.lexisnexis.co.uk/blog/future-of-law/taking-soft-skills-seriously (accessed 18th september 2019). 21 liz curran has noted the positive results in respect of the interaction between policy clinic and casework and the general student performance, see curran, l. (2007) ‘university law clinics and their value in undertaking client-centred law reform to provide a voice for clients’ experiences’ international journal of clinical legal education, vol 12, pp.107-108. https://www.lexisnexis.co.uk/blog/future-of-law/taking-soft-skills-seriously reviewed article 114 the skills the letr (legal education and training review) sets out in its professional competencies dimension and attribute table,22 would be developed in the project. the letr sets out the importance of commercial awareness.23 commercial awareness is described in the letr as a 'composite concept'24 and includes an appreciation of marketing and networking within a law firm. like every other aspect of pro bono work, the newsletter promotes the image of not just the students but also northumbria university and the legal profession as a whole.25 by tailoring the newsletter to fit the audience, the students would gain an appreciation of the commercial importance of maintaining a good image that a well drafted newsletter would bring and the role it can play in marketing when entering the world of work.26 linked to this, the student’s gain the appreciation of what it is really like to be a legal practitioner, as contributing to newsletters may be part of their role in practice.27 as highlighted, it is the author’s own experience as a solicitor that newsletters are often used in legal practice, particularly with a focus on employment law as this area of law constantly changes. 22 webb, j., et al., (2013) ‘setting standards: the future of legal services education and training regulation in england and wales’ the legal education and training review (letr) (2013), p.140. available at: http://letr.org.uk/the-report/index.html (accessed 21.10.19). 23 ibid, p.35. 24 ibid. 25 parker, s. (2001) ‘why lawyers should do pro bono work’ law in context: a socio legal journal, vol 19, p.5. 26 pribek, j. (2011) ‘the firm: law firm newsletters still alive and kicking’ wisconsin law journal blogs, accessed at the webpage http://www.legalnews.com/ingham/908264 (accessed 18th september 2019); thomas, a. darroch, j. and galvin, w. (1999) ‘client newsletter use by new zealand law firms’ journal of professional services marketing, vol 19(2), p. 51. 27 indeed, this was part of the author’s role as solicitor in a local law firm. http://letr.org.uk/the-report/index.html http://www.legalnews.com/ingham/908264 reviewed article 115 secondly, the author hoped that the newsletter would provide general information to third party recipients on employment law issues. newsletters can easily be tailored to intended recipients. therefore, for example, they can be adapted to suit the educational and occupational needs of hr advisors, those in the legal profession and to particular clients including employers or employees. 28 by identifying hr advisors (and their employer organisation) as the target audience, the newsletter could meet their needs and specialised information could be provided which should be of more educational and occupational benefit. at the end of the project, all of the recipient feedback has been positive. one recipient commented as follows: may i express our appreciation of the very helpful updates provided by your students and yourself in these newsletters. they are always very relevant and apposite in addressing the sorts of employment law issues we often encounter in practice and the level of information provided is at the perfect level for busy practitioners, explaining the case law and providing helpful comment on its practical application. you clearly have a cohort of articulate and astute lawyers to be. i hope also that this is a helpful exercise for your students – it certainly is a valuable service to us. 28 for example the law society produces a number of regular newsletters including a monthly update on international legal news and developments and a junior lawyers update see website https://www.lawsociety.org.uk/news/newsletters/ (accessed 13th september 2019). https://www.lawsociety.org.uk/news/newsletters/ reviewed article 116 another recipient added: the newsletter is a most helpful contribution to professionals keeping up to date with latest case law and developments the next part of this article will discuss the methodology that was adopted in the research. methodology one focus group was used to examine the views of students who had participated in the project. all students (sixteen in total) who were involved in the project in the academic year 2018-2019 were invited to attend the focus group. ten students attended the focus group which lasted approximately one hour. the focus group was recorded and subsequently transcribed. a topic guide, prepared by the author, was used by an independent moderator in the focus group. the aim of this topic guide was to give the focus group some structure to explore the key research area of skill development to facilitate discussion.29 however, the moderator could ask questions beyond this list of questions. the author was cognisant of her status as a clinical supervisor using students as participants and that they may feel obliged to take part in the focus group. to 29 the topic guide had a general question asking the students about how they felt about their experience of doing the newsletters and their skill development. reviewed article 117 eliminate this risk, the students were asked by the moderator to sign an informed consent form at the beginning of the focus group, which assured anonymity and confidentiality.30 the consent form reminded them that their participation was voluntary and they could withdraw at any time. the students were also asked to read an information document before they agreed to participate. in this document, the purpose of the focus group was explained, and the author made clear that their participation would not affect any aspect of their programme of study and was in no way linked to their grade within the slo. the document also explained that the focus group would be independently moderated so that there was no tutor influence and the author would not know who had taken part in the study. the moderator running the focus group was active in ensuring that all participants voiced their comments. the participants each gave permission for the focus group to be recorded. the transcript was transcribed by an independent third-party organisation and reviewed by the moderator to ensure that the participants’ names were not mentioned before being received by the author. the tape recording (and consent forms) were securely retained by the moderator. once the transcript was received by the author, the data was then analysed. thematic analysis was adopted for the data analysis. this has been described as ‘an independent 30 they were assured therefore that their supervisor would not know who had participated in this study and no names would be mentioned in the focus group transcription. reviewed article 118 qualitative descriptive approach’31 which ‘is a method for identifying, analysing and reporting patterns (themes) with data.’32 it was considered the results of the thematic analysis would be important in revealing key aspects arising from the qualitative data concerning the pedagogical benefits to the students. it is acknowledged that this is a small-scale study; however, the data does provide an insight into the students’ views and the educational value of client newsletters to the participants in an established legal clinic. a larger, longitudinal qualitative and quantitative study is needed to provide an insight into the project over a number of years from both a student and recipient perspective. to obtain data concerning the educational and occupational value to the recipients an online questionnaire will be used.33 online questionnaires are regarded as an appropriate method to test people's attitudes, views and opinions in relation to a particular topic.34 the benefit of using an online questionnaire is that it will be quick and relatively simple to design.35 however, 31 vaismoradi, m. turunen, h. and bondas, t. (2013) ‘content analysis and thematic analysis: implications for conducting a qualitative descriptive study’ nursing and health sciences vol 15, issue 3, pp.398-400. 32 braun, v. and clarke, v. (2006) ‘using thematic analysis in psychology’ qualitative research in psychology , vol 3, p.77 accessed at the website <http://eprints.uwe.ac.uk/11735/2/thematic_analysis_revised...> (accessed 15th december 2015). 33 the questionnaire will be free to design although a subscription is paid to bristol online's services by northumbria university. bristol online also assists with the data analysis as it can report responses to statistical software packages such as sas and spss. the questionnaire will be sent to the entire research population and therefore the data has the potential to be representative of the project recipients. 34 mcconville, m. and chui, w. (2007) research methods for law, edinburgh university press. 35 wright, k.b. (2005) ‘researching internet – based populations: advantages and disadvantages of online survey research, online questionnaire authoring software packages and web survey services’ http://eprints.uwe.ac.uk/11735/2/thematic_analysis_revised reviewed article 119 there are drawbacks of using this method. notably, a low response rate and a lack of detail regarding why a respondent has a particular view are risks associated with this method.36 the next part of the article will report on the results of the pilot focus group study, taking each theme in turn. not all codes will be discussed, only those which raised consistent concepts. results and discussion the thematic analysis of the focus group data resulted in the following themes: • skill development • increase in knowledge of employment law and legal practice • comparison with live client work • impact of the project • satisfaction skill development the development of legal skills was a key theme that emerged from the study. whilst the students develop an array of skills in their live client work (for example research, journal of computer mediated communication, vol 10, issue 3 accessed at the website https://doi.org/10.1111/j.1083-6101.2005.tb00259.x (accessed 19th september 2019). 36 denscombe, m. (2011) the good research guide for small scale social research projects: 4th edition, open university press. https://doi.org/10.1111/j.1083-6101.2005.tb00259.x reviewed article 120 oral, written and time management),37 the students felt that the project allowed them to develop their skillset from a different perspective and with a different purpose. the different perspective being the viewpoint of the employer, in light of the fact that the participants in the study often had employee clients in the live client clinic. the different purpose being to update the recipients on topical employment law issues that may be relevant to them and giving practical guidance on legal compliance, as opposed to applying the law to the facts of a client’s case. one student commented: i think it’s good as well because you’re doing it for hr people…. you’re considering the practical implications of it, rather than just writing up the legal side of it because you’ve got to consider how it would affect them. so, i think it does expand your knowledge a lot more that way as well. the students acknowledged that they had developed both hard and soft skills throughout the project (including teamwork, research, written communication, confidence, time management and autonomy). the students felt that their research skills improved, as they had to focus on areas of employment law of relevance to the particular recipient and in doing so they were required to consider a wide variety of sources, not just legal databases. one student highlighted: 37 grimes, r. (1995) ‘legal skills and clinical legal education’ web journal of current legal issues vol. 3; hall, j. and kerrigan, k. (2011) ‘clinic and the wider law curriculum’ international journal of clinical legal education, vol.15. reviewed article 121 it gets you to look at other sources as well, it is not just cases and legislation, you go on government reports, and i think that helps look at how it has actually been put into practice. the students relished the opportunity to do research for themselves, finding the topics without prompts by their supervisor and choosing what they wished to focus on. the students discussed how the project enabled them to be more independent, by coming up with ideas on what to include in the newsletter and making the decision as to what is most appropriate for the recipient. this was, for some, not something they had been able to demonstrate in their live client file work as the urgent timescales that come with employment law prevented them from feeling that they could fully showcase their autonomy. the student perception on autonomy in casework supports the point that it is not always possible to allow the student to have ultimate control over the sequence and pace of the legal advice, leading to the supervisor often needing to ‘take the oars and do more than just encourage the student, lest the client’s interests are compromised.’38 when asked whether they would feel comfortable picking topics for newsletters in the future, the multiple response was that they would. the experience has therefore made 38 campbell, e. (2015) ‘transferring power: a reflective exploration of authentic student-centred small group work in clinical legal education’ international journal of clinical legal education, vol 22, no 2, p.1, at p.6. reviewed article 122 them more confident in their own abilities. a positive response was received by multiple students that they would now feel more comfortable in the workplace if they were asked to do a newsletter or anything similar. one student compared the newsletter to an internal memo that she would send a manager in order to update them on legal or other developments. in doing this, she explained how the project has developed her confidence that she can utilise her transferable skills in such a situation. with regards to how newsletters should be written, the students felt that they had learnt how to strike the right balance between ensuring the newsletter was concise (given the newsletter was often around 4-6 pages long) but also covering each topic in sufficient detail to effectively explain the update and the implications for the organisation. a theme in the slo is that the students experience difficulties in adjusting their written communication so that it is clear and free from legalese.39 the project gave them a valuable stepping-stone in honing this skill. one student explained: i think you develop skills in terms of making your own communication quite concise, because you had…it was quite a short newsletter, so you had to keep your articles fairly short. so, it was a lot about picking what is relevant and making it concise and clear. 39 roper, v. (2018) ‘blogs as teaching tool and method of public legal education: a case study’ 2(1) international journal of public legal education, p. 46. reviewed article 123 during the focus group, the students spoke of the way in which they effectively established a collaborative working environment, working as a team in order to ensure that the newsletter was prepared by the deadline set by their supervisor. they all had live client work alongside their newsletter; however, some had cases that were more active, and the students had different exam commitments throughout the year. for one student 'to relieve the pressure on the people' who had a heavier workload, they did more of the initial legal research into potential topics. they also felt the project allowed them to further demonstrate their time management skills to their supervisor, given that the project was in addition to their live client work. in order to improve the project going forward, the students felt that it would be useful to not just circulate the newsletter but also give a presentation on the contents. this presentation could be to the recipients or even to the rest of their slo firm. it was felt that this could further develop their oral communication skills: and not to make more work for us in the slo because especially in the employment (firm) we don’t really need it, but if we’d had maybe the opportunity to present on the information that we found, afterwards, it would probably have demonstrated a different skill the students explained that if they were given the opportunity to present the information and allow the other students to ask questions afterwards, this would reinforce their knowledge and learning. the added level of responsibility that comes reviewed article 124 with presenting to the recipients or to their peers, and answering questions, would provide them with a sound understanding of the issues. it would also benefit the recipients and other students listening to the presentation, as they learn a topic in greater depth than a client newsletter would inevitably bring and allow them to explore the issues in more detail through their questioning. increase in knowledge of employment law and legal practice there was a consensus that the project gave the students a broader knowledge of employment law and practice. they came across topics that they did not expect before they entered the slo, with one student commenting: i think it’s a really good way of looking into different areas that you might not encounter in the slo as well, because i know when i was doing the newsletter for the month that we did it, i ended up writing three different articles, so i was looking into three different areas. so, it really like expanded my knowledge beyond the types of cases that we’d see in the slo. when asked whether the project helped them become aware of topical employment law issues, the multiple response was that it had done. one student commented ‘i’ve definitely learnt more than anticipated.’ another student commented: reviewed article 125 i think as well you became more aware of wider topical issues. like more than what you were doing in the slo... so, i think in the workplace when we go into practice, we’ll be more aware of seeing if things are wrong or how they could be improved based on research for the newsletter. the students felt that this experience also taught them how to keep up to date with employment law and the importance of doing so. they learnt how quickly employment law can change and how regular research is a significant part of their continuing professional development. one student explained that ‘it kept you up to date with the law as well, like it was learning as you were going, it wasn’t just like using precedents that we’re taught in a module.’ comparison with live client work another theme that emerged was the comparison with the live client work. during the course of the academic year, the students in the employment law firms usually gain the opportunity to advise two clients. the client can be either an employer or an employee, depending on the nature of the enquiries that come into the slo. however, in the author’s experience, enquiries from employees are more frequent. the students welcomed the project from the viewpoint of giving them that different perspective and they commented how the project gave them a more diverse experience of work. for those students who had employee clients and advised them on how to bring claims to the employment tribunal, it was refreshing for them to be able to work from reviewed article 126 an employer viewpoint and consider things that are important for employers to consider in order to avoid and minimise the risk of facing employment tribunal claims. one student explained: i think i sort of came in and expected to just be working with obviously employees that they’ve had unfair dismissal or discrimination or whatever, and i think that the newsletters help you to provide that other perspective, like looking at it from an employer’s point of view as well. the students also made the point that the diversity of work helped them with their endpoint reflection assessment. by giving them the newsletters in addition to their live client work one student highlighted that it gave her ‘another perspective’ when it came to her reflection on legal writing. another student added: so, in terms of looking at it from the wider [perspective], like trying to get the grade and to do all the reflections, it’s another thing to add and a different way that you’re writing. impact of the project during the focus group, the students noted the project impact in a variety of ways. the students appreciated the importance of a well-drafted and professional newsletter and the impact of this. they understood that this would impact upon not just their reviewed article 127 reputation but also upon their supervisor, future students and the university as a whole. one student commented that ‘it is our reputation at the end of the day…it is more than just our good grade for our assessment.’ there was a consensus that if the newsletter included incorrect information or grammatical errors then it would not ‘sell’ the slo as a legal clinic and recipients would not come back for any future assistance. thinking about the other students they were keen to ensure that this ‘…opportunity carries on further for the next year and the year after that.’ one student felt that, for a law firm, the newsletter is ‘really key to their client relationships’ and maintaining the solicitor client relationship. the students acknowledged that a badly drafted newsletter could lead to the firm losing clients given how unprofessional it would look. it is clear therefore that the students felt that the project developed their awareness of commercial awareness and professionalism, thereby supporting a key recommendation of the legal education and training review. 40 the students also appreciated the positive impact of the project from a public legal education viewpoint. there was a consensus that reading the newsletter may save the recipients time in researching employment law updates and would educate them on areas that they may need to take legal advice on and more generally, increase their understanding on when they should use legal services. they therefore felt that the 40 legal education and training review. (2013) ‘setting standards. the future of legal services education and training regulation in england and wales’ accessed at the website http://letr.org.uk/wp-content/uploads/letr-report.pdf (accessed 26th september 2019). http://letr.org.uk/wp-content/uploads/letr-report.pdf reviewed article 128 work they were doing was of value to the recipients. one student described it as ‘massively important’ as it ‘forms the foundation of someone’s knowledge behind a topic.’ therefore, in view of the educational importance one student explained ‘you better make sure that you get it right first time.’ however, one student did not fully appreciate the importance of the newsletter until the end of the module. she would have liked more emphasis at the outset on the implications of the newsletter to the target audience. a further improvement suggested was for future students to dedicate more time to coming up with topics for inclusion in the newsletter and to aid this, a teaching session where the whole group brainstorm the type of issues that the recipients could face in their day to day work. therefore, a teaching session covering both the implications on the newsletter and brainstorming potential topics would help them appreciate the areas that could be covered. however, such a teaching session would need to be very careful not to intrude upon the student’s autonomy in choosing his or her own topic. satisfaction finally, the positive way in which the students spoke about their experience and the appreciation they felt of being given the opportunity was evident. the students really valued the opportunity to be able to contribute to the project and this in turn, enhanced their experience. the students felt it was a 'really good way' of looking into reviewed article 129 different areas of employment law and another felt 'fortunate enough to do more than one.' one student described her experience in the following way: and also you want to make sure that the opportunity carries on further for the next year and the year after that… and if… there’s just silly mistakes and errors, and it doesn’t look professional, and there might be errors in the law, then ultimately they’re just going to stop coming to us and they’ll go elsewhere, or they’ll just do it themselves… but the fact that we get the opportunity to do it is brilliant. lessons learnt from the project not giving the students an opportunity to present this study identified that the students would have welcomed the opportunity to present the contents of their newsletter to either the recipients or their peers. as highlighted above, this would develop their oral communication skills and reinforce their knowledge and learning. going forward, a presentation to student peers can easily be incorporated into the project. as the students attend 50-minute weekly firm meetings41 with the author and the rest of their firm members, the presentations can be scheduled to take place at any point after the research has been undertaken. following the presentation, the author can then provide one to one formative feedback to each presenter. 41 these weekly firm meetings are used for a variety of purposes, such as discussing the students cases or as an opportunity to develop a particular skill. reviewed article 130 presentations to the recipients will also be explored in future years, however this will inevitably be more difficult to organise around the availability of all the students and recipients. the benefit of this is that the students would have the opportunity to meet the hr advisors and establish professional networks, which would be excellent preparation for working life. from a student perspective, this may bring additional significance to the presentation if external individuals are present. assistance on the content in the author’s experience, many students did well to identify areas for research and topics for inclusion in the newsletter however there were some students who struggled to identify a topic. as highlighted by the students, a teaching session would assist them in brainstorming ideas going forward. however, the level of assistance should be limited to general areas of law (such as disability discrimination) rather than more specific topics to enable the students to take charge of their project and promote autonomous learning. a brief document would also be helpful to circulate which introduces the project and its aims, provides an outline of the type of work the hr advisors undertake within the external organisation and what format the newsletter should take. reviewed article 131 more clarity on the importance of the newsletter a further lesson learnt from the project was that there should be more emphasis at the outset of the module on the importance of the newsletter. this can be done by asking an hr professional to give a talk to the students and/or incorporating into a firm meeting a discussion on the value of the newsletters. hearing directly from the hr professionals on the benefits to them personally, and to the organisation as a whole, would be valuable. incorporation of a research report from the author’s experience in supervising this project, it would be beneficial for the students to produce a document that sets out their thought process in choosing the topics. in particular: • why they felt an area to be relevant to their external recipient and any areas of employment law they considered but discarded for the newsletter and why. • any area of law they come across during their research that they feel is an area for future law reform. these points could all be incorporated into a research report before they embark upon drafting the newsletter. although this would inevitably increase the time involved (for both the author and students), the benefits of the project would be enlarged. firstly, in identifying why they felt an area to be relevant or not, this would demonstrate to the author that they understand the vital context in which they are reviewed article 132 providing the newsletter and the importance of their topic to their recipient. this would provide the opportunity for the author to provide feedback on whether the areas are appropriate or not, with a full understanding of the students’ reasons. secondly, in identifying any areas of future law reform, the students are exploring the employment law framework in the context of what changes needs to be made.42 the project therefore would require the students to not just apply the law but also go further and challenge any issues they come across in their research in order highlight areas for change. as coper highlights ‘legal education with an ethos of law reform and social justice would give a more altruistic focus to the pursuit of law as a career…’43 finally, the author would be able to see from the report what sources the students have relied upon in their research for the newsletter and be able to provide feedback on the strength of their research skills. conclusions this pilot study demonstrates that the use of employment law newsletters provides pedagogic value to the student and enhances the student experience in cle. by complimenting their live client work, the project developed the students’ professional skills and they gained a broader knowledge of law and practice. the enthusiasm that 42 the assessment in the slo has also now changed to incorporate a 3,500 report critically analysing an area of legal practice. the incorporation of this research report exploring the wider context of legal reform may also assist them in their ideas for this report. 43 coper, m. (2007-2008) ‘law reform and legal education: uniting separate worlds’ university of toledo law review vol 39, p.247. reviewed article 133 the students have for the project is evident and they clearly value the experience. the knowledge gained as to how to research topical legal issues and more generally, keeping up to date with the law is crucial when going into practice. the project gives the students a different client perspective and purpose, which diversifies the work. it also equips the students with the commercial awareness and awareness of professionalism that comes with a client newsletter in the world of work. the newsletters have received positive feedback by the recipients and given the results of this pilot study, there is clearly potential for the project to expand further (including the incorporation of other areas of law) for other client recipients to benefit. for example, family law updates to a mediation service or charity, landlord and tenant updates for a citizens advice bureau and criminal procedure for police forces. moving forward, this study has provided some learning points to take forward into future academic years. notably, the suggestion that presentations would be valued by the students. this will be incorporated into next year’s project and the students will deliver a short presentation to their peers and/or recipients on the contents of their newsletter. this will help develop their oral communication skills and would reinforce their knowledge and learning. finally, the importance of the newsletters to the recipients will be emphasised more from the outset. the value of newsletters in the world of work should also be made more explicit to students and they should not be reviewed article 134 underestimated. as thomas, darroch and galvin have noted, ‘the newsletter along with other marketing activities is seen as an important factor in legal firms’ long term survival.’44 44 thomas, a. darroch, j and galvin, w. (1999) ‘client newsletter use by new zealand law firms’ journal of professional services marketing vol 19, issue 2, p.70. 220545d_jcle_july 2007 comp clinical legal education and indigenous legal education: what’s the connection? anna cody1 and sue green2 introduction in this article3 we will examine some of the steps that unsw law school has taken to address indigenous disadvantage in, and exclusion from, legal education. the article focuses on the role of clinical legal education within indigenous legal education. two concrete examples will be discussed: a clinical subject specifically designed for 1st year indigenous students and a class given by an indigenous academic for later year law students within the general clinical legal education courses. the first is discussed to demonstrate how clinical legal education can improve the experience of indigenous students within law schools. the second example highlights the challenges of attempting to “aboriginalise” the curriculum of law courses. kingsford legal centre: clinical legal education and a commitment to social justice kingsford legal centre hosts the clinical legal education course of the university of new south wales’ law school. since its beginning unsw law faculty has emphasised social justice within law and studying law in a social, economic and political context. the centre was established in 1981 specifically for the purpose of grounding the education at the faculty of law in social justice. the legal education at unsw, in contrast to the university of sydney, was characterised by small group teaching that was critical of the legal system around it, and accessible to the community. community service as a part of the teaching program was seen as a valuable and essential part of legal education. clinical legal education and indigenous legal education: what’s the connection? 51 1 senior lecturer of faculty of law unsw and director kingsford legal centre 2 associate professor of faculty of social sciences and director nura gili. 3 we would like to thank the anonymous reviewer and meena sripathy for comments about this article. commitment to indigenous legal education as a part of this social justice focus, unsw has long been committed to indigenous legal education. a pre-law course for indigenous students commenced as far back as 1995. that year also saw the foundation of the aboriginal law centre, now the indigenous law centre. in late 2002 an indigenous legal education committee (ilec)4 was established. the aim of this committee is to examine and address some of the barriers that indigenous students face in entering law school and to create programs to address these.5 an alternative access and preparation scheme has been developed with the aim of recognising the difficulties that indigenous students have traditionally faced in secondary school. by their participation in this committee, members of the commitee have been encouraged to look at the courses which they teach and examine how indigenous issues are dealt with within their curriculum. this will be discussed later in looking at how the foundations enrichment 2 course functions, as well as the clinical subjects taught at klc. foundations enrichment 1 and 2 two further key developments within the unsw law faculty are the inclusion of two subjects specifically for first year indigenous students: foundations enrichment 1 and foundations enrichment 2. these courses are aimed at supporting first year students once they have been accepted into studying law. research has shown that indigenous students find the experience of law school alienating and disorientating. in the words of indigenous students: “the problem is that you are disorientated by the system…there is no two way learning you are just talked at, that disorientates you even worse… i don’t know how you can stop people dropping out…the thing they can do is not make it such an alien environment… i feel under siege in the classrooms…6 ilec suggested specific measures to address these experiences, having regard to current research and guided by nura gili, indigenous programs centre. foundations enrichment 1 is run in conjunction with staff from the unsw learning centre and offers indigenous students a weekly small group tutorial. its primary purpose is to develop students’ academic skills, including oral communication, problem solving, comprehension and legal writing skills. it also works to develop their critical and analytical skills.7 it gives the students a chance to be with each other, in the majority, rather than a minority within a larger classroom setting. although not formally evaluated as yet, it appears to be functioning effectively as a means of support for indigenous students. as penfold and others have found in their studies of what contributes to the success of indigenous students at law schools, the “opportunity to network with other indigenous students”8 is vital. the support provided by nura gili is an essential part of the networking and support mechanisms. the course helps students adjust to the academic requirements and social context of studying law. 52 journal of clinical legal education july 2007 4 both authors are members of this committee. 5 the work of this committee has been described in detail elsewhere in the indigenous law bulletin: brennan s, hunter j, healey d, johnson d, san roque m, wolff l, “indigenous legal education at unsw: a work in progress” (2004) 6(8) indigenous law bulletin pp26-29 6 comments of students quoted in douglas h, “indigenous legal education: towards indigenisation” (2004) 6(8) indigenous law bulletin, p2 7 brennan et al, above n 2, 4. 8 penfold “indigenous students’ perceptions of factors contributing to successful law studies” (1996) 7(2) legal education review another issue identified by indigenous students interviewed in queensland and reported by douglas and banks, is the lack of relevance of the material that students are confronted with on beginning their legal studies. one student commented: “the first subject was contract, it was so incredibly boring and it is the first thing you have to do and there is all this other stuff that you have to get used to and i was thinking i don’t really care. you lose it from the beginning if you don’t care. if i had a tutor there straight away to explain, it may have been different.”9 this is an issue for all students on beginning law,10 but appears to have a greater impact on indigenous students. the value of clinical legal education for addressing this apparent lack of relevance of material was recognised by ilec and led to the development, among other measures, of the clinical course for first year indigenous students: foundations enrichment 2. this course is based at kingsford legal centre and offers indigenous students a clinical experience in the first year of their law studies. from the evaluations of other clinical subjects offered at the centre, many students comment on the value of seeing law in practice and the benefit it offers them to analyse the law and legal system in context rather than abstractly through a text book. the exposure to real clients early on in their degree provides a level of ‘analysis in practice’ which ideally all law students should have access to but which is almost impossible to provide, from a resource perspective, except to limited numbers, in this case 1st year indigenous students. indigenous students are not required to do both these subjects. they choose to enrol in them for academic credit, and do one less elective as a result. at this point students appear to appreciate the availability of extra support rather than resist it. it gives them the opportunity to be only with indigenous student peers. for all their other courses they are in mainstream classes with all other students. the course focuses on developing the students’ oral and written communication skills through interviewing. they have access to a one to one mentoring relationship with a clinical student who is in the latter stages of their degree. the mentors assist by discussing one of their files with the first year student. while the indigenous students evaluate the course, the impact of mentoring on clinical students has not been specifically evaluated. informal comments from these students suggest that they enjoy the opportunity to share their knowledge and experience and talk with indigenous students. it also provides an opportunity for them to get to know indigenous people which some of them may not have had the chance to do before this course. in addition, the students participate in visits to key agencies which introduces them to the legal aid system and how it functions. the purpose of these activities is to demonstrate how their studies may be relevant in the future and expose them to possible future careers options. the visits include a talk with the registrar and magistrate at a local court, where they also sit in court and listen to a case. this is frequently the first time they have actually seen the legal system in action from a disinterested perspective. many may have some experience of the legal system clinical legal education and indigenous legal education: what’s the connection? 53 9 douglas h & banks c, “from a different place altogether: indigenous students and cultural exclusion at law school,” (2001-2002), 15, australian journal of law and society, p56 10 other mechanisms such as the peer tutor program has been developed to provide support to first year students at unsw. see fitzsimmons, kozlina, vines “optimizing the first year experience in law: the law peer tutor program at the university of new south wales” (april 2007) legal education review. through family members or friends coming into contact in some way.11 they are asked to write a short court report of their experience to encourage reflection and develop their writing skills. they also visit the public defenders office, the legal aid commission and the pro bono section of a large law firm. one class is dedicated to visits from community legal centre lawyers and other public interest lawyers who describe their work and encourage the students to think of possible career options outside the traditional law firm. all of these activities encourage a more concrete examination of what is possible with both law and a law degree. flexibility in delivery it should not be surprising that well documented research of higher sickness and mortality rates for indigenous peoples also impact on students’ ability to participate in tertiary education. “[indigenous] students are more likely to be sick or to have a direct family member who is sick and in need of care or hospitalisation than a non-indigenous student. university teachers need to keep these considerations in mind when an indigenous student is frequently absent from class; has not done their readings; is looking for an assignment extension or a deferred exam; or simply has not filled in a required form.”12 in this context, the timetabling procedures for the foundation enrichment courses were designed specifically with flexibility in delivery of the courses for indigenous students in mind.13 whereas other subjects are centrally timetabled, for this course students are individually contacted to work out the best time for the class. this consultative process sets a tone of informality and flexibility within the course. it also demonstrates the teacher’s interest in each of the students and a desire to accommodate specific students’ needs. for example, in 2005, one of the students had considerable outside work commitments. this work involved him interviewing clients and therefore, taking account of the overlap with course content, he was granted some advance standing to allow him to participate in the course. in 2006, another student who had clashing work commitments and a very full law enrolment was given exemptions from classes by recognising his prior experience. in this way, a more flexible approach is taken for these students to maximise their participation in this course. also, because of the small size of the group it is easier to maintain personal contact and address any attendance issues immediately. the evaluations of the foundations enrichment 2 course since it has been in operation have been overwhelmingly positive. to the question “how will this course influence your later studies?” student responses have included: • the fact that we have had the opportunity to do things that other first year students haven’t been able to do • it helps me realise that all of the theory in class will pay off when we deal with real law situations 54 journal of clinical legal education july 2007 11 falk discusses how many indigenous people will have had some contact with the criminal legal system and green has commented on the intrinsic intrusiveness of the legal system into indigenous people’s lives through the welfare system among other areas. 12 falk p, “law school and the indigenous student experience”, (2004-2005), 6(8) indigenous law bulletin, p8 13 macaulay discusses the importance of flexibility and creativity for successfully improving access to legal education for native students in macaulay h, “improving access to legal education for native people in canada: dalhousie law school’s i.b.m program in context”, (1991) 14(1) dalhousie law journal, p 146 • it will be beneficial in helping to locate and analyse legal issues in scenario based problems throughout my studies • i now know that i’m definitely staying in studying law14 • it reminded me why i started law in the first place, to give aid, and advice to those who are in need or who have been given a rough run • probably guide me into working for a legal centre, not private • gives a better understanding of application of the law to real life scenarios15 • greater knowledge of clients, more insight as to what i want to take from law school, a different point of view outside the theory of academics • good practical experience, gives us greater knowledge • i know it will have enormous influence if i receive a job which i have applied for over the summer break with law access. i am more confident speaking to people • we are lucky to have an understanding of the law in a more practical way. something the other students might never get to see unless they pursue a career in this area • doing law lawyers – will be well prepared! we are also well equipped to gain employment as a law clerk later on, and also have contacts in the legal industry etc16 the course clearly provides gives these students with a grounding and motivator for their legal studies. the student responses demonstrated that they appreciated the opportunity to have access to a practical application of law at this early stage and that this helped them stick with their law studies. students were also very enthusiastic about the experience of interviewing clients in advice sessions, and the exposure to clients from different cultural and other backgrounds., student comments about the experience of interviewing multiple clients on an advice evening session included: • “it’s awesome, the whole course came together in this session”, • “this was the highlight of the course as it was really interesting and a really great experience”, • “once again excellent, i was able to interview a client by myself with the assistance of a translator”, • “great experience being able to work with different cultures…” • “loved it! felt that i really helped and enjoyed the process of finding out about laws – not just regurgitating knowledge”. responses in the evaluations demonstrate the value that students gain from the course. they identify that they become recommitted to social justice or helping people through their interviewing experience. they gain a sense of confidence in their ability to interview effectively and well. they see the possibilities for themselves and their communities in them studying law and having a law degree. clinical legal education and indigenous legal education: what’s the connection? 55 14 evaluations of fe 2 course in 2004 15 evaluations of fe 2 course in 2005 16 evaluations of fe 2 course in 2006 positive evaluations typical of clinical legal education evaluations? to a large extent, these sorts of responses are typical of clinical student evaluations of any clinical legal course. one could argue that all law students should do some clinical legal course early on in their degree. this is unlikely to occur however due to the resource implications for providing clinical legal education. furthermore where there are limited resources, due to the documented greater likelihood of indigenous students withdrawing from legal studies, it is important to target those limited resources to ameliorate this problem. traditionally, law schools have found it harder to attract and retain indigenous students. it is therefore more important for indigenous students to have the opportunity to do clinical courses early in their degree program. these evaluations could also suggest the value of providing some clinical experience to other disadvantaged students who may be at risk of withdrawing from their studies. ideally all students would do more clinical work/study early on but from a resource perspective this is unlikely to be realized at unsw. at this point, the provision of a clinical course specifically for indigenous first year students does not appear to have caused any resentment amongst the greater student body. this hasn’t been raised directly by any non indigenous students possibly because they are unaware of the course. the numbers of students enrolling in the course each year are small, between five and seven students. additionally, klc offers interviewing experiences to almost all legal ethics students in 1st, 2nd or 3rd year. overwhelmingly the students in their reflective assignments in this course discuss the value of dealing with real client’s problems and how interviewing clients grounds their theoretical study. they also state how this has stimulated them to take clinical courses later in their degrees. challenges in teaching the course from a teaching perspective, one of the challenges thrown up by this course arises from the divergence in level of capacity among the student group. while this is an issue with any course, the differing levels of ability and confidence have more of an impact in a small group. some students have more experience and confidence interviewing clients than others. this is demonstrated by the ability of the students to put clients at ease and enable them to tell their stories fully, a skill which is key to good instructions in a legal setting. writing skills is another issue for some students, particularly those who may have had a more difficult time at secondary school. to meet this need, the course was modified to provide greater emphasis on the written redaction of instructions and a court report. we have found that it is necessary to be creative and flexible for the course to be appropriately “useful for all of the students all of the time”.17 for example in one of the classes the students are required to interview a real client for the first time in pairs. in 2006, one of the students was clearly capable and keen to interview the client by himself and was permitted to do so. he was also allocated a potentially more challenging client who had a psychiatric disability and various legal issues in the evening advice session. in this way, the course is responsive and accommodates each individual student. judging from the levels of achievement of the indigenous students as they progress in their legal studies and their own evaluations of the courses, the foundations enrichment 1 and 2 courses and other measures taken by the unsw law faculty are working to help students continue successfully with their legal studies. the alienation felt by indigenous law students expressed in 56 journal of clinical legal education july 2007 17 macaulay, above n 12, 151. earlier research is to some degree being ameliorated through the courses developed at unsw. this is through the course content, including the fostering of mentoring relationships with later year non indigenous students. the foundations enrichment 2 course was developed to improve the experience of indigenous students at law school, particularly in their first year. by providing a clinical legal experience early on in their degrees, indigenous students are better able to participate in their law degrees. while there is always room to evaluate and improve, the courses are an effective means of ensuring that indigenous law students enjoy their legal studies and are able to participate fully in a relevant, enjoyable course of legal studies that is inclusive of indigenous views of the world. support beyond first year is generally provided through the nura gili centre rather than through law-specific courses. many of the students accept cadetships with government and law firms which provides them with ongoing practical exposure. need for additional support is an issue which remains to be discussed further within ilec. the other need identified by ilec and after the symposium on indigenous legal education in 200418 was the need to review and change the curriculum of all courses to reflect indigenous experiences and views of law. this is an attempt to “aboriginalise” the curriculum in all courses. it is not enough to provide a supportive learning environment for indigenous students, we must also think about the broader curriculum and how this alienates indigenous students and deals with indigenous issues.19 this involves critically evaluating how we structure law courses as well as their content. this has the potential to be challenging for all students and faculty. it is yet to be done throughout all courses within law. with this in mind, in 2005, klc decided on various measures to incorporate indigenous issues within the clinical courses. these courses are taken by almost entirely non-indigenous students. in the next part of this article we describe the class on working with indigenous clients and communities, which was developed as a part of the attempt to review and improve the class content. clinical legal education course for later year non-indigenous law students teaching the later year non-indigenous clinical students about indigenous issues is perhaps more of a challenge than teaching the foundations courses. many students have clear ideas about what it is to be indigenous and the place of indigenous people and issues within australia. the students would have had exposure to issues that have come up in the last decade such as the stolen generation and the impact that aboriginal children being removed has had on current generations of aboriginal people; the treaty debate, representation of indigenous people in custody and deaths in custody of indigenous people; and domestic violence and sexual assault in indigenous communities. as well as teaching law students, klc is a community legal centre providing legal services to its local community which includes the randwick and botany council areas. this catchment area includes the indigenous community at la perouse. the centre advises and represents indigenous clinical legal education and indigenous legal education: what’s the connection? 57 18 kingsford legal centre and the indigenous legal education committee organised a symposium on indigenous legal education in november 2004 at unsw to discuss issues within the region relating to indigenous legal education. 19 see falk footnote above, also watson, i, “reflections on teaching law: whose law yours or mine?” (2005) 6(8) indigenous law bulletin, p12, and kelly l, “personal reflection on being an indigenous law academic”, (2004-2005), 6(8) indigenous law bulletin, p3 people (approximately 2% of the clients at klc are indigenous) and is currently establishing an outreach service to better serve the indigenous community. klc is actively committed to improving and adapting the service it offers to better serve its indigenous community.20 it has actively sought funding for an aboriginal cadetship program within community legal centres. at the end of 2006 the combined group of nsw community legal centres was successful in obtaining funds from the public purpose fund nsw to establish an aboriginal legal access program. following the november 2004 symposium, klc realised the importance of students learning about working with indigenous clients and communities from an indigenous perspective. the majority of the students who enrol in courses at klc are from relatively middle-class, though increasingly culturally diverse, backgrounds. many are committed to social justice but would not have had much to do with indigenous people before starting their course at klc. the seminar program contains a mixture of classes given by staff at klc and other guest lecturers. it includes classes on the provision of legal aid and community legal services, plain english drafting, discrimination law, working to settlement in conciliations, how to deal with challenging clients, employment law, law reform and human rights amongst others. they include substantive areas of law as well as more skills based classes. the seminars are the only time in which all 30 of the enrolled clinical students are together. historically the classes are structured to be participative with many small group exercises and discussions. students are given a class program and readings in their induction in week 1 of their course. as a part of the measures klc has adopted to improve the service for indigenous clients and students, klc acknowledges the traditional owners of the land klc is on at the beginning of the first class of each semester. clinical supervisors in their individual supervision regularly discuss issues with students, including how their view and solicitors’ views of clients may be influenced by cultural and racial stereotypes and how this may influence their work. in the class program there is a class which addresses the topic of working with indigenous communities and clients. the readings in preparation for this class focus on the skills needed when interviewing indigenous clients. in the next section of this article we describe two experiences of giving this class and a reflection on how to best address these issues. the class in 2005/06 when the class was presented in summer 2005/06, the clinical teacher gave a brief introduction of sue green, director of nura gili, aboriginal resource centre at unsw. sue green then gave a presentation, using her life history and family history as a means of demonstrating experiences of indigenous people. she described the extensive language groups existing in australia at the time of white invasion and showed pictures of her family members and family tree, as well as pictures of passes which her family members had to carry to be allowed to leave the reserve they lived on. in the second half of the class she answered questions about alcohol use and abuse, why she identified as aboriginal despite having light coloured skin among other issues. the following day within the larger student working space a fairly heated discussion began amongst 58 journal of clinical legal education july 2007 20 atsi access policy, klc. about eight of the students, about the class the previous day. some students were critical of sue for using the word “genocide” when referring to the policies towards indigenous peoples which had been adopted since white invasion. others struggled with her identifying as aboriginal rather than her other cultural identities and thought she was a “victim”. some were strongly supportive of her and focussed on the parts of australian history they had known nothing about previously. others were critical of her being “negative” and not doing anything positive in the community to improve the situation of indigenous people. they referred to her adopting a “victim” stance and questioned her contribution to indigenous communities and the society at large. at the beginning of the next class the clinical teacher referred to the previous class and the overheard discussions which had occurred later. there then was a frank discussion with people having quite differing views of the class. some wanted clearer guidelines on “how to work with indigenous clients”, a succinct list of “what to do”. others were critical of this, stressing the need to deal with each indigenous client individually. one of the students referred to his grandmother having lived through the holocaust and how this frames her world view. he used this experience to understand why sue green used the term ‘genocide’ when she discussed what has happened to indigenous peoples. at the conclusion of the discussion, the clinical teacher described sue’s credentials and achievements. she referred to the fact that sue green is an associate professor within the university and how constructively she works within the university to ensure indigenous students get to university and successfully complete their studies. she also talked about different ways of talking and seeing the world and that while law students are used to analysing cases logically, narrative is an equally valid way of seeing and describing the world. sue had demonstrated what it was like to be indigenous as opposed to providing a simplistic a list of do’s and don’ts for dealing with indigenous clients. following the class we reflected on the students’ reactions and responses and decided to try a different introduction to the class next time. it was clear from this experience that the students weren’t prepared for a speaker to present differently and came laden with their views about indigenous people and race issues within australia more broadly. “describing to non-indigenous students the concept of an aboriginal worldview is difficult, but so is the aboriginal experience of colonialism, and apart from providing students with my perspective along with those of other aboriginal guest lecturers, contact with aboriginal community organizations and the extensive readings by aboriginal writers, i still find nonaboriginal students struggle to engage with the idea of a different view of the world and the aboriginal experience of racism and colonialism. it is difficult for the non-aboriginal student to engage because the aboriginal question sits outside of any of their experiences.”21 this clearly resonated with our experience in this class. unfortunately the class program was not formally evaluated that semester due to an administrative error. informally many students commented to the teacher about the value of both the class and the discussion afterwards for helping them to understand some indigenous issues better. clinical legal education and indigenous legal education: what’s the connection? 59 21 watson i, “reflections on teaching law: whose law yours or mine?” (2005) 6(8) indigenous law bulletin, p12 the class in session 1 2006 the following semester a different approach was taken to present this class. this time, the clinical teacher introduced the guest lecturer, ms. sue green as an associate professor of the university. the work of ms. green’s nura gili centre and its achievements in relation to indigenous students was described. the clinical teacher also discussed different ways of learning and teaching other than case analysis and talked specifically about the story telling or narrative style which is discussed and used substantially within critical race theorists in the united states of america. the point was to frame the class and the students’ expectations of it in light of the previous group’s reaction. the class that sue presented was substantially the same as the class she had given previously. discussion flowed easily and students asked questions and explored some of the issues. after the class, there was no heated discussion in the student area about it, other than students commenting how much they had learnt and enjoyed the class. the class was formally evaluated by 24 students. of the 24, 12 found it very interesting and relevant, 10 found it interesting and relevant and 2 made no response. no-one thought it was “not interesting or relevant”. of all the classes, this was the class that received the most positive responses and was found to be most interesting and relevant. students’ comments included: • i didn’t agree with everything she said, but i guess that is a good thing • i really found her experiences very interesting and insightful • these 2 classes (indigenous class and pleamaking) were my favourites. sue green was fantastic and so was the lady from blakes • great presentation. created a lot of interest from all students • this was the most interesting of all classes • that woman is amazing and an inspiration. the difference in response between the two groups of students was marked. it raised for us a number of interesting questions: were the differing responses due to the personalities and identities of the students or was it due to the way in which the class was introduced? did the specific emphasis on sue’s academic credentials given in the introduction to the subsequent class make the students more open to hear what she had to say? we now discuss some observations from the divergent experiences of these two classes. world view challenged and impact of personal identities having an indigenous presenter for this class appears to challenge the students’ world view. some students like it and others don’t. some of the students have the view that by being law students, they are bright, have progressive, community-service-based motives and find it hard to be challenged around race issues. some of the students at klc probably see themselves as being socially aware and even radical and for this reason confronting their identities may be more difficult. 60 journal of clinical legal education july 2007 “the relationship of indigenous people to the anglo-australian legal system is something that goes to the heart of legal process and legal theory. it constructs our national identity and can even impact on the personal identity of non-indigenous australians. how we deal with that history (remembering that history is everything that has happened before this moment) challenges who we are.”22 the divergent experiences of this class suggest that students find the challenging of their conceptions of themselves confronting. we need to encourage students to be conscious of their own personal identities and how this impacts on their lawyering. klc’s clinical course addresses this in the areas of interviewing and direct individual supervision of case work, but not in formal classes. the discussion of how their identities may impact on their ability to assist indigenous clients and communities needs to be raised forcefully and directly. an indigenous academic presenting a class gives an opportunity for students to hear an indigenous voice who is not the needy client. the class implicitly questions students’ identities but this may need to be made more explicit. it may be useful to add a separate seminar class in which we question and discuss: how will my cultural background, class, gender, sexuality impact on my ability to assist my client? is an indigenous lawyer more likely to be able to help an indigenous client? can a non-indigenous lawyer develop a rapport with indigenous clients? it may be useful to ask students who are working with indigenous clients to reflect on their experience within the class setting. these discussions arise in an informal way currently in morning tutorials in which larger questions about the fairness of the legal system arise. frequently students are confronted with the huge difficulties which indigenous clients face, health problems, lack of education, family obligations and the ways in which this makes it more difficult to claim legal rights or pursue legal remedies. these issues haven’t been teased out more formally but rather arisen in a more informal way and in individual supervision with clinical teachers. another shift in the last one to two years is the experience of non indigenous students working closely with indigenous students enrolled in the clinical courses. as the clinical experience encourages team work, and close working relationships, this again provides an opportunity for students to develop relationships and links which they may not have previously. hopefully this contributes to breaking down stereotypes. generally for indigenous students to have reached final year of law they are high achievers in their communities who are articulate, committed, active and hard-working. this contradicts stereotypes of indigenous people as victims who are unable to deal with their communities problems. ideally these classes should be co-taught with an indigenous teacher to ensure a range of inputs and perspectives. currently none of the clinical teachers are indigenous thus do not bring this perspective to their work. they bring a range of cultural backgrounds and other forms of diversity to their work. these issues could all be explored more fully as well as the diversity of the student body. clinical legal education and indigenous legal education: what’s the connection? 61 22 kelly l, “personal reflection on being an indigenous law academic”, (2004-2005), 6(8) indigenous law bulletin, p3 another broad reason for teaching personal identification issues in lawyering courses is that lawyers, as people who deal with the public professionally, should demonstrate leadership and set examples of tolerance and pluralism. the importance of being non-judgemental in our work is discussed from induction, through individual case discussions, interviews and morning tutorials. the need for tolerance and pluralism can be especially important for public interest lawyers whose clients are from subordinated communities, as these communities stand to gain the most from respect of difference and diversity.23 when students are judgemental about clients, for not taking action sooner, for “lying”, for being “victims”, clinical teachers question these points of view. frequently as the student gets to know the client better, their immediate judgements soften and are often proved wrong. this provides rich ground for discussion and analysis, and encouraging tolerance and non judgemental attitudes towards clients. talking about race another observation from the experiences of these classes is that it may be easier for students to see aboriginal people as needing help in the role of a client. a presentation by an aboriginal female associate professor subverts the roles and expectations of students even if they are unarticulated. to point out to students that there is a race issue in australia disturbs people. if you are in the dominant cultural group it is often easy not to see the race issue. it would be easier to have a “checklist of simplistic cultural stereotypes”24 on “how to deal with indigenous clients and communities” than a discussion of racism in australian society. it may be more useful and also more challenging for us as teachers to encourage students to interrogate their cultural and other identities. the class asks them to be aware of their own ethnicity and race. we need to help them recognise what they don’t know rather than use stereotypical lists. use of narrative as a style of teaching the class uses a narrative style of teaching. students are not accustomed to learning in a university setting, without “academic-speak”. using everyday speech rather than an academic style means students may value the content less. narrative is excluded from traditional law teaching. critical race theorists in the usa have commented extensively on the importance of story for the inclusion of minority voices within law.25 indigenous scholars in australia also recognise the importance of narrative. as kelly writes “story –telling is a huge part of my traditional culture so i’ll take this opportunity to tell a bit of my story…even though writing ‘in the narrative’ is not so acceptable in legal scholarship.”26 the difficulty the later year law students had with dealing with narrative as a form for learning was striking. this made us question how to teach the class. we asked, “do students need to be prepared to hear narrative, rather than a logical case analysis?” or should they be allowed to experience the class, without being prepared and allowed to respond however they do? 62 journal of clinical legal education july 2007 23 hing b o, “raising personal identification issues of class, race, ethnicity, gender, sexual orientation, physical disability, and age in lawyering courses”, (1993), 45(6) stanford law review, p1810 24 o’donnell a, “thinking culture in legal education”, (1996),7(2) legal education review, p152 25 delgado r, critical race theory: the cutting edge, (1995) temple university press: philadelphia 26 kelly, above n 19, 1. cultural diversity of students the student body at unsw is increasingly culturally diverse. the student body is no longer predominantly made up of anglo saxon white australians. there are many australian born students from culturally and linguistically diverse backgrounds. there is also a growing international student body, with many students coming from economically privileged backgrounds in south east asia. these students may be culturally in the minority in australia and have experienced racism here, but have not grown up in a culture where they are disadvantaged or in the minority. many of the international students may not necessarily have been aware of indigenous issues in australia before coming here. once they have been here a while, they will have been exposed, through the media, to various indigenous issues but will probably have not met indigenous people and thus their views are more likely to be shaped by stereotypes rather than reality. students of more recent non-anglo migrant background may have views which have been influenced by their parents’ ability to “make it” in australia. the fact that these students belong to a minority group and may have experienced discrimination and marginalisation along the way, does not mean that they will necessarily understand or connect with the circumstances of indigenous people who occupy a very specific and historical position of disadvantage in this country. it may be useful to question more broadly issues of “culture”. some have argued that australia is “a society with a multicultural population, regulated and governed by a mono-cultural power structure.”27 rather than just focussing on cross cultural awareness, it is important to raise a larger pedagogical question “in which relations of power and racial identity become paramount as part of a language of critique and possibility.” we need to question, what is culture and challenge the notion of it as static and unchanging. “a view of culture and ethnicity that sees them as static and unchanging will also tend to attribute a homogeneity to cultures that obscures important differences of class and gender within recognised “ethnic communities” or commonalities of interest across communities.”28 the range of students from diverse cultural backgrounds would be rich material for discussion around “what is culture” and “how does it impact on our work”. the class has much scope to discuss culture/race as formative of identity within a range of experiences. a broader discussion about culture as one of the identities we all have would be a useful and insight provoking discussion. conclusion in summary, in this article we described two examples of clinical legal education attempts to make law school a more useful and less alienating environment for indigenous students. we also described an experience of trying to educate non-indigenous students about working with indigenous clients and communities and reflected on the challenges and issues it triggered for us. clinical legal education can be a valuable approach to address the feelings of alienation of indigenous students and one which other law schools could emulate. clinical courses help students to ground legal concepts, and have the potential to reaffirm the reasons they chose to study law in clinical legal education and indigenous legal education: what’s the connection? 63 27 o’donnell, above n 21 quoting jamrozik a, boland c and urquhart r, social change and cultural transformation in australia, (1995), cambridge university press: victoria, p xi 28 o’donnell, above n 21, 142. the first place. for students who might otherwise be marginalised or excluded, this is particularly important. the very positive experience of first year indigenous students of early clinical courses raises the larger question of the value of clinical legal education for all law students, early on in their degrees. the evaluations of these courses demonstrate the benefits to students of doing clinical courses early in their degree programs. they increase their commitment to their studies, and to the practice of law for the benefit of the community. it also grounds their legal studies and makes the theory more alive through real client experiences. while providing clinical experiences for all law students early on in their degrees would be valuable, it would require a greater dedication of resources than is likely at this point in any university in australia. at least the value of clinical legal education has been recognised at unsw as vital for indigenous first year students. and from this experience, we argue that the provision of clinical courses early on is particularly valuable for disadvantaged students at risk of withdrawing from law. ensuring that disadvantaged students, including indigenous students, can participate in legal studies, can only enrich the overall learning experience for other students and for the faculty more broadly. supporting indigenous students is however just one part of the response to the needs of indigenous students. the other is developing and modifying curriculum in all courses to take account of indigenous perspectives and for all students to be more inclusive of indigenous points of view and be challenged to think more deeply about culture and race. “from a teaching perspective, it is imperative to understand that the law we teach has grossly impacted on indigenous peoples’ lives and ways of being in this country. academics need to remember that disputes over the legal validity and history of australian colonisation, widespread mistreatment of indigenous people following the european invasion, and unequal treatment under the law remain understandable sources of contention between indigenous and non-indigenous people to this day.”29 students need to hear indigenous voices directly. challenging non-indigenous students about where indigenous communities and clients are within society and how to work with them has proven difficult. this involves challenging the ways in which non-indigenous students expect to be taught about law and preparing them to hear stories of entrenched injustice and racism as an issue in current australia. working with clients in clinical courses provides a direct means of challenging students views about indigenous clients and encouraging them to be tolerant and non judgemental. this is unique within the legal curriculum. “it is through the possibility of aboriginalising our legal education that we could bring another way of knowing the world and its legal systems, and thereby introduce students to other ways of coming to know the law.”30 it is both the how and the what which will change if we truly aboriginalise our legal education. while some attempts have been made to do this in clinical courses, ilec continues to have much work to do to ensure that all the law courses truly reflect indigenous points of view at unsw. this is part of a larger project and continues to be a work in progress. 64 journal of clinical legal education july 2007 29 falk above n 11, 6. 30 watson above n 18, 23. reviewed article – clinic, the university and society 23 disability human rights clinics as a model for teaching participatory international human rights lawyering yvette maker, university of melbourne, australia jana offergeld, evangelische hochschule rwl (protestant university of applied sciences rwl), germany anna arstein-kerslake, university of melbourne, australia introduction the disability human rights clinic (dhrc) was established at melbourne law school, the university of melbourne, in 2015. its supervisors and students conduct legislative and policy reform projects as well as strategic litigation. the dhrc was created by anna arstein-kerslake to address a significant lack of resources in community-based organisations to undertake in-depth legal analysis. it uses an innovative model of clinical legal education to harness the skills of law students to fill that gap and to expose a new generation of lawyers to the emerging field of disability human rights law.1 in this article, we draw on our experiences running the dhrc to argue that the model it establishes can create significant scholarly output in the human rights field, 1 yvette maker has worked as a research fellow with anna arstein-kerslake since the inception of the clinic in 2015. she assists in leadership, supervision, and teaching. jana offergeld is a research fellow at bochum university of applied sciences in germany and she spent a semester in 2016 as a visiting research fellow in the clinic. she assisted in supervision and teaching. reviewed article – clinic, the university and society 24 direct engagement with the community, and rich doctrinal and experiential learning for students. the work of the dhrc is guided by the united nations convention on the rights of persons with disabilities (crpd).2 the crpd obliges governments around the world to respect, protect and fulfil the civil, political, economic, social and cultural rights of persons with disabilities. the crpd emerged as a response to persistent and serious violations of the human rights of persons with disabilities worldwide.3 it does not create any rights that were not already guaranteed under existing human rights instruments, including the universal declaration of human rights,4 the international covenant on civil and political rights (iccpr),5 and the international covenant on economic, social, and cultural rights (icescr).6 however, the crpd does enumerate them in a novel manner, specifically tailored to the barriers that persons with disabilities face to the realisation of their human rights.7 the creation and passage of the crpd was a victory for the international disability rights movement, with persons with disabilities and their representative organisations playing a major role in the 2 convention on the rights of persons with disabilities, opened for signature 30 march 2007, 2515 unts 3 (entered into force 3 may 2008) (‘crpd’). 3 gerard quinn, ‘the united nations convention on the rights of persons with disabilities: toward a new international politics of disability’ (2009) 15(1) texas journal on civil liberties & civil rights 33–52, 37–39; paul harpur, ‘embracing the new disability rights paradigm: the importance of the convention on the rights of persons with disabilities’ (2012) 27(1) disability & society 1–14, 4. 4 un general assembly, universal declaration of human rights, 10 december 1948 <http://www.un.org/en/universal-declaration-human-rights/>. 5 international covenant on civil and political rights, opened for signature 16 december 1966, 999 unts 171 (entered into force 23 march 1976, except art 41, which entered into force 28 march 1979). 6 international covenant on economic, social and cultural rights, opened for signature 16 december 1966, 993 unts 3 (entered into force 3 january 1976). 7 for a discussion, see rosemary kayess and phillip french, ‘out of darkness into light? introducing the convention on the rights of persons with disabilities’ (2008) 8 human rights law review 1, 3–4. http://www.un.org/en/universal-declaration-human-rights/ reviewed article – clinic, the university and society 25 initiation and drafting of the instrument.8 the role of persons with disabilities did not end when the crpd entered into force in 2008; the crpd obliges governments to involve them in all aspects of implementing the crpd and monitoring the rights and circumstances of persons with disabilities.9 in this article, we argue that clinical legal education offers a valuable avenue to pursue the implementation of the crpd at the local and national level, and particularly to support persons with disabilities and their representative organisations to advocate for their rights and participate in the crpd implementation and monitoring process. at the same time, it can provide rich experiential learning to students and meet universities’ goal of engaging more meaningfully with the community. as evans and his colleagues note, while traditional clinical legal education in australia ‘places students in the role of lawyers representing clients with legal questions or problems’, the meaning of clinical legal education has evolved in recent decades.10 it now encompasses a wide range of models that share the ‘common element… [of] “real” experiences’,11 and the model developed in the dhrc joins this growing range of innovative approaches that combine ‘student learning, community service, professional engagement, research and policy development’.12 8 ibid. 9 crpd arts 4(3), 31, 33(3). 10 adrian evans, anna cody, anna copeland, jeff giddings, peter joy, mary anne noone and simon rice, australian clinical legal education (anu press, 2017) 41 <https://press.anu.edu.au/node/2366/download>/. 11 ibid. 12 ibid, 36 and citing jeff giddings, promoting justice through clinical legal education (justice press, 2013) 39–73. reviewed article – clinic, the university and society 26 addressing the history of marginalisation using a human rights framework disability research is a unique area because it deals with a group of people who are often marginalised, and research itself has played a role in that marginalisation by, for instance, treating persons with disabilities as objects of scientific study, supporting or justifying rights violations like segregation and invasive medical ‘treatment’, and failing to take into account the priorities and concerns of persons with disabilities in designing and conducting research.13 a clinic focused on research related to the rights of persons with disabilities must openly recognise this history of marginalisation and must structure itself in such a way that combats marginalisation in both its methodology and the content of its outputs. one of the key ways in which we employ emancipatory methods is the use of the crpd as the framework for the curriculum and projects of the dhrc. the crpd is one of the most recent united nations human rights treaties. it establishes that ‘disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others’.14 these barriers include a lack of accessible facilities and services, stigma and discrimination, and insufficient funding of services and supports. such barriers produce and perpetuate 13 mike oliver, ‘changing the social relations of research production?’ (1992) 7(2) disability, handicap & society 101–114 ; emma stone and mark priestley, ‘parasites, pawns and partners: disability research and the role of non-disabled researchers’ (1996) 47(4) british journal of sociology 699–716, 700–701; jan walmsley and kelley johnson, inclusive research with people with learning disabilities: past, present and futures (j. kingsley publishers, 2003). 14 crpd preamble para (e). reviewed article – clinic, the university and society 27 the marginalisation of persons with disabilities in many spheres of life and contribute to the high rates of human rights violations of persons with disabilities around the world. for example, the world health organization reports that persons with disabilities have poorer health outcomes, lower educational achievements, less economic participation and higher rates of poverty than persons without disabilities.15 persons with disabilities are frequently subject to exclusion and segregation in many areas of life, such as education, employment and accommodation.16 the ability of persons with disabilities to live independently and to be included in the community is often questioned, especially for persons with cognitive disability.17 another crucial issue is the ongoing legal practice in most parts of the world of restricting a person’s legal capacity on the basis of disability.18 this denial of legal capacity is commonly coupled with the legitimation of ‘substituted decision-making’ by third parties, for 15 world health organisation, summary world report on disability (report, world health organisation, 2011) 10-12 <http://apps.who.int/iris/bitstream/10665/70670/1/who_nmh_vip_11.01_eng.pdf/>. 16 see for example australian government, shut out: the experience of people with disabilities and their families in australia (national disability strategy consultation report, commonwealth of australia, 2009) <https://www.dss.gov.au/our-responsibilities/disability-and-carers/publications-articles/policyresearch/shut-out-the-experience-of-people-with-disabilities-and-their-families-in-australia> ; committee on the rights of persons with disabilities, concluding observations on the initial periodic report of montenegro, 18th sess, un doc crpd/c/mne/co/1 (22 september 2017) paras 14, 36(c); committee on the rights of persons with disabilities, concluding observations on the initial report of luxembourg, 18th sess, un doc crpd/c/lux/co/1 (10 october 2017) paras 42, 48; committee on the rights of persons with disabilities, concluding observations on the initial report of serbia, 15th sess, un doc crpd/c/srb/co/1 (21 april 2016) para 13; committee on the rights of persons with disabilities, concluding observations on the initial report of the european union, 14th sess, un doc crpd/c/eu/co/1 (2 october 2015) para 22. 17 jenny morris, ‘independent living and community care: a disempowering framework’ (2004) 19(5) disability & society 427–442, 431–2. 18 committee on the rights of persons with disabilities, general comment no 1: article 12: equal recognition before the law, 11th sess, un doc crpd/c/gc/1 (19 may 2014) para 8. for a discussion, see author 2017. http://apps.who.int/iris/bitstream/10665/70670/1/who_nmh_vip_11.01_eng.pdf/ https://www.dss.gov.au/our-responsibilities/disability-and-carers/publications-articles/policy-research/shut-out-the-experience-of-people-with-disabilities-and-their-families-in-australia https://www.dss.gov.au/our-responsibilities/disability-and-carers/publications-articles/policy-research/shut-out-the-experience-of-people-with-disabilities-and-their-families-in-australia reviewed article – clinic, the university and society 28 example, where a person can be involuntarily admitted and treated in a psychiatric facility on the basis of an assessment of their ‘best interests’, or where a legal guardian can be appointed to make financial, healthcare, lifestyle, or other decisions on the person’s behalf.19 other fundamental civil and political rights, such as the right to vote or protection from arbitrary deprivation of liberty, are restricted or fully denied because of impairment in many countries.20 the persistence of these barriers globally, coupled with decades of advocacy and activism by persons with disabilities, led to the creation of the crpd to ‘promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity’.21 as noted above, the international disability community played a key role in advocating for a human rights treaty on disability, and a variety of national and international disabled persons’ organisations (dpos) contributed to the development and passage of the convention. dpos are civil society organisations controlled and led by persons with disabilities. they comprise a range of local, national and international non-government organisations with ‘the aim of collectively acting, 19 ibid, paras 7, 27, 42. 20 see for example the european union agency for fundamental rights’ (fra) reports on the right to political participation and violence against children: fra, the right to political participation of persons with mental health problems and persons with intellectual disabilities (report, fra, 2010) <http://fra.europa.eu/sites/default/files/fra-2010-report-vote-disability_en.pdf>; fra, violence against children with disabilities: legislation, policies and programmes in the eu (report, fra, 2015) <http://fra.europa.eu/sites/default/files/fra_uploads/fra-2015-violence-against-children-withdisabilities_en.pdf>. 21 crpd art 1. http://fra.europa.eu/sites/default/files/fra-2010-report-vote-disability_en.pdf http://fra.europa.eu/sites/default/files/fra_uploads/fra-2015-violence-against-children-with-disabilities_en.pdf http://fra.europa.eu/sites/default/files/fra_uploads/fra-2015-violence-against-children-with-disabilities_en.pdf reviewed article – clinic, the university and society 29 expressing, promoting, pursuing and/or defending a field of common interest’. 22 the drafting process was driven by active participation of dpos and other civil society actors to a greater extent than other treaties.23 the crpd was adopted in 2006 and entered into force on 3 may 2008. as of march 2018, 176 states are party to it.24 while the international disability rights movement has emphasised that persons with disabilities do not ask for special rights, the crpd addresses specific challenges and human rights issues that are unique to the situation of persons with disabilities. they include, for example, equal recognition before the law and the prohibition of all forms of discrimination on the basis of disability;25 taking appropriate measures to ensure equal access to the physical environment, transportation, information and communications technologies, and other systems and facilities;26 ensuring against unlawful or arbitrary deprivation of liberty;27 realizing the right to inclusive education;28 and guaranteeing equal enjoyment of political rights, including the right to vote and be elected.29 22 united nations general assembly, report of the special rapporteur on the rights of persons with disabilities, 31st sess, un doc a/hrc/31/62 (12 january 2016) para 36 <http://www.ohchr.org/en/hrbodies/hrc/regularsessions/session31/documents/a_hrc_31_62_e. doc>. 23 see kayess and french, above n 7. 24 office of the high commissioner for human rights, united nations, status of ratification interactive dashboard (13 march 2018) <http://indicators.ohchr.org/>. 25 crpd arts 5, 12. 26 crpd art 9. 27 crpd art 14. 28 crpd art 24. 29 crpd art 29. http://www.ohchr.org/en/hrbodies/hrc/regularsessions/session31/documents/a_hrc_31_62_e.doc http://www.ohchr.org/en/hrbodies/hrc/regularsessions/session31/documents/a_hrc_31_62_e.doc http://indicators.ohchr.org/ reviewed article – clinic, the university and society 30 one of the guiding principles of the international disability rights movement, ‘nothing about us without us’, demands that all matters affecting persons with disabilities should involve persons with disabilities in positions of leadership and control.30 the crpd reflects this, explicitly obliging states to closely consult with, and actively involve, persons with disabilities and dpos in the development and implementation of the crpd (art 4), and in monitoring that implementation (art 33).31 this requirement to meaningfully include persons with disabilities applies to research that assesses the status quo in regard to the human rights situation of persons with disabilities, analyses relevant legal, political and social structures, and informs necessary policy and law reform. historically however, as we noted above, research on disability has been conducted from a medical and deficit-oriented perspective, focusing on individual impairments and identifying approaches to ‘fix’ or ‘cure’ them. this is often referred to as a ‘medical model’ approach to disability.32 while medical research on impairment and human functioning is of course valuable for some purposes, the societal barriers facing persons with disabilities are complex and multifaceted, and cannot be redressed through medical research alone. in their role as objects of research, persons with disabilities have often been placed in a position of 30 kayess and french, above n 7, 12; paul harpur, ‘embracing the new disability rights paradigm: the importance of the convention on the rights of persons with disabilities’ (2012) 27(1) disability & society 1–14. 31 for further information about legal mechanisms for involving and consulting dpos, see fra, dpo involvement: indicators on political participation of persons with disabilities (background information report, fra, 2014) <http://fra.europa.eu/en/publications-and-resources/data-and-maps/comparativedata/political-participation/dpo-laws>. 32 theresia degener, ‘disability in a human rights context’ (2016) 5(3) laws 35 <http://www.mdpi.com/2075-471x/5/3/35>. http://fra.europa.eu/en/publications-and-resources/data-and-maps/comparative-data/political-participation/dpo-laws http://fra.europa.eu/en/publications-and-resources/data-and-maps/comparative-data/political-participation/dpo-laws http://www.mdpi.com/2075-471x/5/3/35 reviewed article – clinic, the university and society 31 silence and dependency and their lived experience has not been considered to be valuable or relevant knowledge.33 persons with psychosocial and intellectual disabilities in particular are often questioned in terms of their ability to provide relevant and reliable information due to an assumed lack of mental capacity.34 on this basis, academia has been a particular target of criticism by disability rights scholars and activists.35 the call for disability research to be participatory and co-produced led to the formation of disability studies,36 a research field characterised by the idea that persons with disabilities and their perspectives should have control over research, and providing them with decision-making powers regarding research questions, design and dissemination. in disability studies, researchers are held accountable by persons with disabilities and their representatives, who are involved in the research process wherever possible, as either academic researchers and/or non-academic partners.37 this requires a questioning of traditional power hierarchies within academia and the opening of knowledge production to a marginalized social group.38 disability research emerges from a variety of disciplines but is always characterized by its aim to 33 jasna russo and peter beresford, ‘between exclusion and colonisation: seeking a place for mad people’s knowledge in academia (2015) 30(1) disability & society 153. 34 see for instance carol k sigelman, edward c budd, cynthia l spanhel and carol j shoenrock, ‘asking questions of retarded persons: a comparison of yes-no and either-or formats’ (1981) 2(4) applied research in mental retardation 347. 35 see above, n 13. 36 stone and priestley, above n 13. 37 gerry zarb, ‘on the road to damascus: first steps towards changing the relations of disability research production’ (1992) 7(2) disability, handicap & society 125. 38 rannveig traustadóttir, ‘research with others: reflections on representation, difference and othering’ (2001) 3(2) scandinavian journal of disability research 9. reviewed article – clinic, the university and society 32 empower and liberate participants and to foster social change on a broader scale. as the academic arm of the disabled peoples’ movement, disability studies informed the drafting of the crpd and provided a theoretical framework for its implementation.39 most importantly, the crpd is premised on a ‘human rights model’ of disability, which is a further development of the social model of disability.40 in comparison to the social model, the human rights model provides not only an explanation for the exclusion of persons with disabilities, but also, through the appeal to universal human rights, a framework for political and legal measures to remedy them. the model focuses not only on non-discrimination and civil rights, but also on the social, economic and cultural rights of persons with disabilities. research that adopts a human rights-based model definition of disability, and that supports the work of persons with disabilities and their representative organisations to achieve social change in a collaborative way, can contribute to the monitoring and implementation of the crpd at the national and international level. student law clinics offer one means to pursue research that accords with the human rights model of disability and contributes to the implementation and monitoring of the crpd. in clinical legal education programmes, research that pursues these goals can be conducted while also 39 see arlene s kanter ‘the law: what’s disability studies got to do with it or an introduction to disability legal studies’ (2011) 42(2) columbia human rights law review 40; rannveig traustadóttir, ‘disability studies, the social model and legal developments’ in oddný mjöll arnardóttir and gerard quinn (eds), the united nations convention on the rights of persons with disabilities: european and scandinavian perspectives (martinus nijhoff publishers, 2009) 1. 40 degener, above n 32. reviewed article – clinic, the university and society 33 offering students crucial experiential and theoretical learning. in the next section, we discuss this second contribution of disability human rights clinics. clinical legal education – cause-based lawyering, experiential lawyering, and engagement clinical legal education is increasingly recognised as a valuable – if not essential – complement to traditional legal education. student clinics ensure that students develop valuable professional skills for their future careers as lawyers, including legal research and analysis, teamwork, client liaison, clear writing, and advocacy. students are then equipped with knowledge and skills for lawyering in general, as well as ‘cause-based lawyering’ in the human rights field and beyond.41 clinics also contribute to the ‘third mission’ of universities to engage with, transfer knowledge to, and contribute to the development of, the community.42 this responds to calls by public and private funding agencies for universities to leave the ‘ivory tower’ and allow non-academic organizations and individuals to access and actively participate in research activities.43 most notably, clinics can increase access to justice for people who have traditionally been denied this right, for instance, by sharing knowledge, 41 kris gledhill, ‘establishing an international human rights clinic in the new zealand context’ (2013) 19 international journal of clinical legal education 295 <http://dx.doi.org/10.19164/ijcle.v19i0.31>. 42 michael loi & maria chaira di guardo, ‘the third mission of universities: an investigation of the espoused values’ (2015) 42 science and public policy 855. 43 henk a. j. mulder and caspar f. m. de bok, ‘science shops as university–community interfaces: an interactive approach in science communication’ in cheng donghong, jenni metcalfe and bernard schiele (eds) at the human scale – international practices in science communication (science press, 2006) 2. http://dx.doi.org/10.19164/ijcle.v19i0.31 reviewed article – clinic, the university and society 34 skills and resources with community organisations, by providing research support to community legal centres, or by contributing to reports or communications to law reform or other relevant bodies. in the next section, we describe the disability human rights clinic at melbourne law school, and propose that it has six key features that are necessary for the design and execution of clinical programs that can achieve these multiple purposes. disability human rights clinics as a means to pursue the goals of the crpd and clinical legal education the disability human rights clinic at melbourne law school while several other disability rights-focused law clinics are in existence,44 the dhrc was the first project-based clinic that is focused on systemic change, and the first to incorporate disability studies and disability human rights curriculum. it is offered to students completing the juris doctor (jd) post-graduate law degree. the degree comprises both compulsory and elective subjects, and the dhrc has been offered as a semester-long elective or a three week intensive subject. it counts towards students’ academic credit. students enrolled in the dhrc undertake 12 days of clinical work (one day per week during semester or four days per week during the intensive). each clinic day begins with a 90-minute seminar on international human rights law, 44 for example, the disability legal information clinic at the national university of ireland, galway’s centre for disability law and policy (see <https://www.nuigalway.ie/centre-disability-lawpolicy/dlic/>) and the cerebra pro bono research programme at the university of leeds (see <http://www.law.leeds.ac.uk/about/extra/cerebra-pro-bono-research-programme>). https://www.nuigalway.ie/centre-disability-law-policy/dlic/ https://www.nuigalway.ie/centre-disability-law-policy/dlic/ http://www.law.leeds.ac.uk/about/extra/cerebra-pro-bono-research-programme reviewed article – clinic, the university and society 35 disability rights law and disability studies. students spend the rest of the clinic day working in small teams on a disability human rights-related clinical project, with the clinic director providing ongoing guidance through informal discussions and scheduled meetings with each team. each group works on one major project for the duration of the course; on the first day of the clinic, students are invited to rank the projects that most interest them and are allocated to a group on that basis. as a project-based clinic, students in the dhrc engage in research and/or advocacy focused on systemic change as opposed to individual client service. clinical projects may include law or policy submissions, amicus briefs, research support for strategic litigation, or other projects that require legal analysis. most projects have a ‘client partner’, which is an organisation that needs a specific project to be completed. these may be documents that are internal to the organisation, such as an inclusion or diversity policy review, or they may be public documents, such as a public report or submission. through the dhrc website45 and the professional contacts of the clinic director and fellows, project proposals on disability human rights issues are invited from dpos, community legal services, state and federal government agencies, researchers in other faculties at the university of melbourne, and other stakeholders. the students work closely with their client partner, seeking guidance when developing the project and conducting the research, and inviting feedback on drafts. at the end of semester, students deliver their research findings to the partner and 45 see <http://law.unimelb.edu.au/students/jd/enrichment/pili/subjects/disability-human-rights-clinic> http://law.unimelb.edu.au/students/jd/enrichment/pili/subjects/disability-human-rights-clinic reviewed article – clinic, the university and society 36 (where appropriate) to the academic and wider community, through both written papers and oral presentations or seminars. based on our experiences in the dhrc, we propose that clinics must have six essential features in order to fulfil the tripartite mission of human rights implementation, engaging with the community, and providing rich experiential learning for students. we propose that these features can also offer useful guidance to human rights clinics concerned with other groups of rights-holders such as refugees and asylum seekers, women and older persons. six essential features of disability human rights clinics 1. conduct projects that share the objectives of the crpd disability human rights clinics should have an overarching objective of improving the human rights situation of persons with disabilities through legal analysis, research and/or investigation of the legal, political and social barriers to the realization of the rights enshrined in the crpd. using the crpd as a framework for disability human rights clinics ensures that the research being conducted is underpinned by a set of principles and values that have been determined by the disability community itself. this places the clinic in the best position to co-produce research that meets the needs of that community. the dhrc operates under the human rights-based model. it uses the crpd as a framework for its curriculum as well as a basis for the legal analysis within each reviewed article – clinic, the university and society 37 clinical project. within that framework, it accepts and adopts a social model of disability that recognises that social barriers and law reform can be altered to meet the needs of persons with disabilities. the dhrc rejects the concept that disability is a burden or that it is deficient in the individual. it also rejects the notion that disability is something that inherently needs to be ‘cured.’ instead, in following with the crpd and the social model, the dhrc celebrates diversity and strives to remove socially constructed barriers to full participation and equal rights for persons with disabilities. projects may encompass ‘traditional’ legal research, such as the preparation of legal submissions, amicus briefs or information for public interest litigation, but also more advocacy-focused endeavours such as assisting non-profit organisations to draft shadow reports (which offer an alternative perspective to official state reporting) to the crpd monitoring body, the committee on the rights of persons with disabilities, or the development of training materials for self-advocates and other stakeholders (like judges and disability service providers) on the legal implications of the crpd. for example, projects completed by dhrc students have included research for strategic litigation being contemplated by the australian centre for disability law, a specialist community legal centre based in sydney, and contributing to the annual report of catalina devandas aguilar, the united nations special rapporteur on the rights of persons with disabilities, to the human rights council and general assembly. reviewed article – clinic, the university and society 38 project-based clinics are particularly well-suited to human rights subjects46 because human rights advocacy is often based on reporting, strategic litigation, and submissions to human rights bodies.47 there are other benefits to project-based clinics. they allow the students to work on broader social issues48 and to play a role in strategic litigation and law and policy reform efforts. there are also practical advantages of this structure. as long as the projects do not involve the provision of specific legal advice,49 there is usually no need for student practice orders or for the supervisor to have a practicing certificate or admission to the local bar. in jurisdictions that do not have student practice orders, this is a significant benefit. this also allows international guests or partners to engage more heavily with clinic projects. 2. partner with dpos (and, where appropriate, other organisations whose activities have implications for the rights of persons with disabilities) it is vital that disability human rights clinics focused on the rights or needs of marginalized communities engage with relevant non-government organizations (especially disabled persons’ organisations) and community groups. this ensures 46 see deena r hurwitz, ‘lawyering for justice and the inevitability of international human rights clinics’ (2003) 28(2) yale journal of international law 505 <http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1221&context=yjil>. 47 for a discussion of human rights clinics, see arturo j carrillo, ‘bringing international law home: the innovative role of human rights clinics in the transnational legal process’ (2003) 35 columbia human rights law review 527 <https://www.law.gwu.edu/sites/www.law.gwu.edu/files/downloads/ihrc_article_ac.pdf>. 48 for a discussion, see katherine r kruse, ‘biting off what they can chew: strategies for involving law students in problem-solving beyond individual client representation’ (2002) 8 clinical law review 405 <https://ssrn.com/abstract=2172346>. 49 the definition of ‘legal advice’ varies based on jurisdiction and should be verified in any jurisdiction where a project-based clinic is running. http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1221&context=yjil https://www.law.gwu.edu/sites/www.law.gwu.edu/files/downloads/ihrc_article_ac.pdf https://ssrn.com/abstract=2172346 reviewed article – clinic, the university and society 39 that they are up to date with the specific needs of the communities that they are working with. in order to meet the requirements of the crpd in regard to the involvement of persons with disabilities in implementing and monitoring the convention, clinics of this kind should also strive to respond directly to the needs of the specific community that they are working with. in practice, this means clinical programs should invite persons with disabilities and dpos to propose clinical projects that will provide what they need to pursue disability human rights issues arising in relation to the crpd. project-based clinics can fill a gap in the dpo community’s resources.50 these bodies are often under-funded and under-resourced with little capacity for writing and analysis, while project-based clinics have a student group that has designated time specifically for these tasks. juris doctor and other graduate students are usually particularly well suited to this type of work because they are post-graduate students with well-developed research and writing skills. collaboration between project-based clinics and ngos can often produce the best results because they combine the grassroots knowledge of the ngos with the research and writing skills of the students and the resources of the university clinic. while partnerships with persons with disabilities and their representative organisations should be prioritised, projects with or for other stakeholders may also 50 for a discussion of the need for clinics to be responsive to community need, see sameer ashar, ‘law clinics and collective mobilization’ (2008) 14 clinical law review 355. reviewed article – clinic, the university and society 40 be appropriate and consistent with the overarching objectives of disability human rights clinics. in particular, clinic students can offer training, advice and detailed analysis of the human rights implications of laws, policies and practices to government bodies, disability service providers and other organisations that may not otherwise adopt a human rights lens. clinical projects of this nature can contribute to raising awareness about the rights of persons with disabilities (as guaranteed in article 8 of the crpd) and increasing access to justice for persons with disabilities (article 13), among others. for example, students in the inaugural dhrc partnered with the administrative appeals tribunal, an independent statutory body that decides appeals on certain administrative decisions made by the australian government under commonwealth laws. its mandate includes reviewing decisions about individuals’ access to the national disability insurance scheme (ndis), a new national scheme designed to give persons with disabilities access to individualised funding to purchase disability-related supports. the first object of the legislation establishing the ndis is to ‘in conjunction with other laws, give effect to australia’s obligations under the convention on the rights of persons with disabilities’.51 in light of this, the dhrc students developed and presented a toolkit to assist tribunal members to make decisions that are compliant with the crpd. in cases were person with disabilities and their representative organisations are not the primary project partners, it is especially crucial to ensure that the voices of the 51 national disability insurance scheme act 2013 (cth) s 3(1)(a). reviewed article – clinic, the university and society 41 disability community still guide the research. for example, research projects will only be selected if their goals are consistent with the crpd and the statements of dpos, the committee on the rights of person with disabilities or other united nations mechanisms and agencies. in the dhrc, students are expected to make contact with relevant dpos during the course of their projects, in order to seek their perspective and guidance on the issue and to invite their input. ideally, students will also share their research outputs with interested dpos, and produce versions of their materials that may be useful to that group. for example, one group of dhrc students who conducted comparative research on australian and german guardianship laws for partners at the bochum centre for disability studies (bodys) at the protestant university of applied sciences rwl (germany) also ran a workshop on victorian guardianship laws and sought feedback on their research from the leadership group at valid, a victorian organisation run by and for persons with intellectual disability and families. the dhrc uses several methods to engage with dpos and other potential partners. the dhrc website (hosted by melbourne law school) invites dpos and persons with disabilities to propose research topics and collaborate with students and researchers to investigate those topics and produce research outputs. the clinic director and her colleagues also refer potential partners to the clinic when they are approached or otherwise hear about suitable projects. information about human rights violations and issues of concern are also sought from other stakeholders, such as domestic reviewed article – clinic, the university and society 42 government bodies, non-dpo civil society organisations, disability service providers, and united nations mandates and mechanisms (including members of the crpd committee and the special rapporteur on the rights of persons with disabilities), although these voices are always considered to be secondary to those of persons with disabilities. 3. participatory research methodology partnerships with dpos in disability human rights clinics should not be restricted to commissioning clinical projects and taking receipt of research outputs. rather, individuals and organisations should be involved as co-designers and co-producers of the research, in-keeping with the principles of participatory and emancipatory research developed in disability studies and reinforced in the crpd. this means that research topics must designed on the basis of concerns raised by, or direct research requests from, the disability community. it also requires students and researchers to discuss and agree on the design and conduct of the research project with these partners, hold regular meetings to discuss and refine the research process, and incorporate feedback from community partners before finalising their research reports or other project outcomes, including identifying accessible ways of disseminating the reports (discussed further below). this ongoing engagement has several advantages. research outcomes are not dictated by the initial research question but also by decisions made with the partners during the research process itself, for example regarding the operationalisation of research reviewed article – clinic, the university and society 43 questions and the selection of methods. this enables partners to understand and to actively take part in the necessary decisions-making processes.52 intensive participation in the research process can be empowering for community partners who themselves gain new knowledge and skills, for example, by learning how international and national law work and how they can be useful for their own advocacy and action. at the same time, dpo involvement secures the student researchers’ access to relevant stakeholder knowledge. the two-sided knowledge exchange ensures that research outcomes can be a tool for change – on one side, students are informed by needs or problems identified by the affected community, and on the other side, partnering organisations are supported by rigorous legal research and analysis. clinic students profit just as much from working closely with the community partners, gaining career-relevant contacts and developing their skills in project design and management, client liaison, legal and social research, advocacy, teamwork, responsiveness and communication. for example, students in the dhrc have formed working relationships that could lead to future work experience and employment, including peak national dpos, community legal centres, united nations mechanisms, and statutory authorities like the victorian office of the public advocate and victoria legal aid. the project-based format enables students to gain lawyering skills that they 52 see vivien runnels & caroline andrew, ‘community-based research decision-making: experiences and factors affecting participation’ (2013) 6 gateways: international journal of community research and engagement 22. reviewed article – clinic, the university and society 44 may not have the opportunity to develop in their other studies. working with other students, supervisors and community partners requires high-level teamwork and interviewing skills, and students are supported to develop these skills throughout the clinic teaching period. 4. produce accessible and useful outputs law students and lawyers have long been criticised for failing to ensure that their written communications are clear and accessible to lay clients.53 the issue of accessibility is of particular relevance for persons with disabilities, as they commonly face exclusion from accessing information due to communication barriers. this very much applies to academic publications, with journal articles, research reports and scientific conferences rarely being provided in accessible formats. another crucial component of a disability human rights clinic is therefore to create outputs in shared ownership that are accessible and tailored to the needs of the community partners. dhrc students are encouraged to identify the most useful and accessible formats for their research outputs early in the project planning process and in consultation with the partner organisation. for example, several groups of students have developed materials in ‘easy-to-read‘ format, which they have utilised in workshops with persons with intellectual disability or their representative organisations.54 the 53 see for example ros macdonald and deborah clark-dickson, clear and precise writing for today’s lawyer (queensland law society, 2000). 54 misako nomura, gyda skat nielsen and bror tronbacke, guidelines for easy-to-read materials (ifla professional reports no 120, international federation of library associations and institutions, 2010) <https://www.ifla.org/publications/guidelines-for-easy-to-read-materials>. https://www.ifla.org/publications/guidelines-for-easy-to-read-materials reviewed article – clinic, the university and society 45 dhrc’s research outputs, such as written reports and videos of presentations, are published in multiple formats on the (accessible) melbourne law school website, including screen-reader accessible reports. the accessibility of presentations and seminars is also considered, with wheelchair accessible venues, sign-language interpretation, and other accessibility considerations factored into event planning. this is a work in progress, with future plans to develop more easy-to-read outputs and accessible events. where appropriate, disability human rights clinics can also provide advice and support to partner organisations to utilise the research outcomes to pursue social change by, for instance, linking them with legal services to pursue strategic litigation, or providing guidance on pursuing formal redress through a communication to the committee on the rights of persons with disabilities or other domestic or international bodies. this can also contribute to the realisation of the right to access to justice guaranteed in article 13 of the crpd. finally, to maximise the reach and impact of the research findings, partners are invited to share the research outputs with their members and networks. permission is sought from the students and the partners prior to this dissemination. 5. combine disability studies and human rights education a detailed background in disability studies and human rights education is essential for students engaged in disability human rights clinics. the dhrc includes a teaching component – a 90-minute seminar or lecture at the beginning of every clinic day – to reviewed article – clinic, the university and society 46 equip students with a detailed knowledge of disability studies and disability human rights law and practice. seminars address the key aspects of disability studies and teach students about the central ideas and shift of perspective that the emergence of this interdisciplinary research field brought to the scientific discussion of disability. this is particularly important for students in many universities that do not have disability studies or disability law programs. topics addressed in the seminars include the medical and social models of disability; discrimination (including intersectional discrimination); legal capacity; and accessibility. other seminars deal with general human rights principles, theory and law, including the history and enforceability of international human rights, and the universal rights guaranteed in the iccpr and the icescr. the application of these rights specifically to persons with disabilities in the crpd, the implementation of disability human rights in domestic law in australia and other parts of the world, and the mandates and activities of international human rights monitoring mechanisms, are also addressed. in the dhrc, we have very intentionally ensured that the substantive curriculum that we teach also includes knowledge of the history of marginalisation of persons with disabilities and the role that research has played. we also include an overview of new methods that have been proposed to shift research from marginalising to participatory and emancipatory.55 finally, we ask the students 55 see for example stone and priestley, above n 36. reviewed article – clinic, the university and society 47 to explore how participatory and emancipatory methodologies can be employed in their work in the clinic and how the clinic as a whole uses those methodologies. lectures and seminars on disability studies and human rights (and associated readings and exercises) provide students with the background material that is essential to their ability to produce useful and legally sound research outputs for their partner organisations, and to develop essential legal knowledge for future lawyering and advocacy work in the national or international human rights fields. while students’ learning is assessed primarily through a research report (or other output) produced for the partner, they are also required to complete a short exam at the end of the semester. this ensures that students have engaged with the full breadth of relevant materials, and not just the specific subject matter involved in their clinical project. importantly, the dhrc director and lecturers are aware of the sensitivity of some matters that arise during lectures and discussions, particularly because many of our students and lecturers are persons with disability themselves. trigger warnings are provided for students regularly throughout the course of the clinic. students meet individually with the director to ensure that there is adequate space for all students to express themselves, including when they are having a difficult time and experiencing anxiety or are particularly impacted by the sensitive issues such as violence and discrimination that arise in this area. reviewed article – clinic, the university and society 48 6. ensure that the clinic and educational experience is accessible to all in addition to making sure that the research outputs of disability human rights clinics are accessible, clinics (and all aspects of legal education) must also be accessible to students. this means ensuring that classrooms, learning materials and communications between lecturers, supervisors, students and partners are accessible. frances gibson has proposed that all clinical legal programs should follow a number of guidelines to ensure that clinics adhere to the requirements of the crpd.56 these include mandatory skills-based disability training for staff and students, contributing to policy-making and activities to increase the enrolment of students with disabilities in law programs, encouraging students with disabilities to enrol in clinics, teaching critical analysis of the law’s approach to disability, and promoting employment of staff with disabilities. the critical analysis of the law’s approach to disability is the centrepiece of the dhrc. in addition, students are invited to note any accessibility requirements in their application to enrol in the clinic, and to attend a meeting with the clinic director prior to the commencement of the course if they so desire. classes are conducted in an accessible room, and materials (such as the course outline and electronic versions of assigned reading materials) are provided in multiple formats as required. if requested, the director and fellows also provide support to students in their interactions with 56 frances gibson, ‘“the convention on the rights of persons with disabilities”: the response of the clinic’ (2011) 15 international journal of clinical legal education 11 <http://dx.doi.org/10.19164/ijcle.v15i0.53>. http://dx.doi.org/10.19164/ijcle.v15i0.53 reviewed article – clinic, the university and society 49 university services (such as the student equity and disability support service at the university of melbourne) to make alternative exam arrangements and so on. staff involved in the dhrc all have a background in disability rights law. they are involved in other disability rights-related research and activities within the university of melbourne, including consultation on disability policy and student inclusion. the multi-directional benefits of disability human rights clinics the six principles outlined above emphasise the role of disability human rights clinics in both supporting the mission of community organisations (especially dpos) and offering valuable experiential and traditional learning to students. disability human rights clinics have obvious appeal for law schools and universities. they are relatively low cost – supervisors do not generally require a practising certificate for projectbased clinical work, partner organisations mainly provide in-kind support rather than requiring funding, and the widespread availability of information and communication technology like video-conferencing reduces the need for travel to meet with partners or deliver research outputs.57 like other forms of legal clinics, they offer ‘work-integrated learning’, meaning they provide students with valuable, relevant work-experience that relates to their studies and their career aspirations, and results in new learning.58 57 see gledhill, above n 41. 58 melinda shirley, iyla davies, tina cockburn and tracey carver, ‘the challenge of providing workintegrated learning for law students – the qut experience’ (2006) 10 journal of clinical legal education 134, 135-6 <http://dx.doi.org/10.19164/ijcle.v10i0.81>. http://dx.doi.org/10.19164/ijcle.v10i0.81 reviewed article – clinic, the university and society 50 by sharing knowledge, and the means of knowledge and research production, with the community specifically for the purpose of supporting human rights realisation, disability human rights clinics also contribute to universities’ ‘third mission’ of engagement, as well as the so-called ‘fourth mission’ of establishing long-term university-community partnerships.59 this can have wider flow-on effects for academia – civic engagement in research can help to rearrange traditional power structures in research and enable participation of stakeholders who traditionally have not been able to have a say, despite the fact that they are often significantly impacted by research activities and outcomes. conclusion disability human rights clinics can be a valuable addition to clinical legal programs in law schools worldwide. where they have the six features identified in this paper, these clinics meet each of the three key ‘motivations’ for clinical legal education identified by kris gledhill.60 first, they ensure that students develop valuable professional skills for their future careers as lawyers, including legal research and analysis, teamwork, client liaison, clear writing, and advocacy. secondly, they can increase access to justice for people who have traditionally been denied this right, for instance, by sharing knowledge, skills and resources with community organisations, by providing 59 on the third and fourth missions, see jill chopyak and peter n levesque, ‘community-based research and changes in the research landscape’ (2002) 22(3) bulletin of science, technology and society 203; gregory trencher, masaru yarime, kes b mccormick, christopher n h doll and steven b kraines, ‘beyond the third mission: exploring the emerging university function of co-creation for sustainability’ (2014) 41 science and public policy 151. 60 gledhill, above n 41, 297. reviewed article – clinic, the university and society 51 research support to community legal centres, or by contributing to reports or communications to un monitoring bodies. finally, disability human rights clinics can contribute to social change by supporting the disability community in its pursuit of the realisation of the human rights of persons with disabilities at the local and international levels. the model proposed here could also provide the basis for human rights clinics concerned with other groups of rights-holders, such as refugees and asylum seekers, women, and older persons. for example, the principles relating to participatory research and the accessibility of research outputs, and of the clinic itself, are relevant for all areas of research and advocacy. while the crpd is the only human rights instrument to place such explicit emphasis on the participation of the affected persons in the implementation and monitoring of human rights, deena hurwitz explains that all human rights advocacy is fundamentally participatory and equitable. that is, it requires active collaboration between lawyers, advocates, and those affected by the work (who may or may not be the clients).61 the dhrc model exposes student to this participatory methodology. students who have completed the clinic have often commented that their perspectives of disability and human rights have shifted. they often see human rights as much more connected to their daily lives than they had previously realised, and often begin to see disability 61 hurwitz, above n 46, 521. reviewed article – clinic, the university and society 52 as something to celebrate in appreciation of the joy of human diversity. through the humble platform of clinical legal education, the dhrc model has had a significant impact on the students as well as the many and varied partners that have been our clients – the united nations committee on the rights of persons with disabilities, the united nations special rapporteur on disability, the australian disability discrimination commissioner, and others. practice report 155 royal holloway, university of london and the afghanistan and central asian association: new partnerships and challenges during covid-19 in the clinical legal world nicola antoniou1, jill marshall2, alexander gilder3 and rabia nasimi4 abstract in january 2020, royal holloway, university of london set up a new legal advice centre offering free legal advice to the local community, including building upon key partnerships to address unmet legal needs. this practice-paper discusses royal holloway’s legal advice centre (lac) and the afghanistan and central asian association’s (acca) collaborative approach and response to the global pandemic since march 2020. it will highlight the unprecedented challenges that they have faced, and their efforts to overcome them. in addition, the paper will discuss their research project, which provides royal holloway’s student volunteers with the opportunity to gain unique multidisciplinary understandings of the effect of the pandemic in 1 senior lecturer and director of the legal advice centre, royal holloway, university of london. 2 professor of law, royal holloway, university of london. 3 lecturer in law, royal holloway, university of london. 4 strategic development manager, afghanistan and central asian association. practice report 156 afghanistan, and a chance to put their legal skills into practice by producing legal information to support local users of both royal holloway’s lac and the law clinic at the acaa. this practice-paper includes a road map to royal holloway’s long-term goal, namely, to work with acaa to research the legal vulnerabilities of women in afghanistan, with the aid of a research grant supporting international collaboration. recent reports highlight that lockdown and quarantine measures will have a longterm impact on the basic rights and freedoms of afghan women, who already face hardship. introduction royal holloway, university of london’s lac was set up from scratch by its current director and it opened its doors to the public in january 2020 for a three-month pilot phase. the lac offered a mixture of both on-campus and remote services. the location of the campus was a potential barrier to some clients, and so the lac wanted to have some flexibility by offering telephone conferences. the telephone conferences that were scheduled took place on campus. during the last week of the lac’s advertised sessions, the government announced the covid-19 lockdown restrictions in response to the current global pandemic. practice report 157 the lac had clients booked-in, was unequipped to deal with off-campus telephone conferences, and had clients who lacked access to smartphones. as a result, the lac resorted to the basics of using a mobile phone to call the clients. whilst the last session went relatively smoothly, there was an absence of the student advisers involved, and so there would need to be innovative solutions and adaptations to the clinical programme to remedy this. with royal holloway’s alternative assessments being written for external approval and other online teaching commitments, the lac was somewhat isolated. the lac closed its doors for the student examination period and decided to offer to students, who could not take part in the last session, an opportunity to take part in a summer vacation placement. part of the summer scheme involved a collaboration with the acaa. the acaa continued to operate during the height of covid-19, and this practice-paper will explore the challenges and needs that their users faced. royal holloway’s lac students are working on a joint project that aims to address some of these unmet needs. 1. royal holloway’s lac summer placement 1.1 legal clinics during the lac’s summer placement, in addition to running sessions for members of the public, limited to family law, they carried out a pilot phase for a new clinic, called practice report 158 the hmp coldingley law clinic5. the lac recognised the need for prisoners to seek family law advice, particularly around issues of child contact and the challenges that covid-19 amplified. the biggest challenge for the lac was to ensure that their remote sessions did not affect the quality. clinics such as this provide for the continuation of advice to those in need, as well as forming new partnerships and strengthen existing relationships which may provide resilience for future lockdowns. by expanding the breadth of the lac’s practice to incorporate existing contacts and partnerships that staff at royal holloway have generated over the years, they can improve the stature of the department while providing more options for lac students. 1.2 technology after having time to reflect on the sudden closure of their main legal advice clinic, the lac at royal holloway spent time thinking and liaising with their college’s it department about how they could best implement a service that enabled all users free access and that was secure and safe to use. the initial suggestion was microsoft teams as this was an approved method of communication for learning. although teams appeared to be most suitable for internal use, or where others had accessibility to download the appropriate software the lac encountered difficulties. for example, 5 this is a partnership between royal holloway’s legal advice centre, creighton and partners and hmp coldingley/the forward trust. practice report 159 where clients did not have access to smartphones or email, this was an ineffective way to communicate. in addition, the college had limited capacity to make ‘external’ calls. the lac then tried skype for business. they quickly realised that whilst all staff and student advisers could connect, if they wanted to add a facility to call out to clients without smartphones, and that was toll free, they needed a subscription. this was not possible to do through the college-based account. the lac entered into a discussion with the college’s audio visuals team who suggested a telephone conference facility that allows all users to dial in, or alternatively the lac could dial out to multiple people toll-free. whilst this appeared to be a simple but effective option, the cost was extensive, and so the lac decided to open a college account ready for use as a last resort. finally, the lac decided to use skype (non-business). to test the function, they created a new dedicated lac account. the lac added ‘credit’ and did a few dry runs. the problems they encountered were that their student volunteers could not join the skype session using their skype-business accounts. they therefore had to join each session as ‘guests’. after seeking confirmation from the college’s it and data protection teams that they could proceed with this, the lac decided to use this method to communicate with all clients and ordered a subscription service. the service is free for everyone to use. the student volunteers and supervisor could connect via skype and then ‘phoned’ the clients. practice report 160 1.3 simulated practice: preparing for our new virtual world to fully prepare the student advisers to deal with the new online procedure, the lac carried out simulated exercises using their new skype account. the director of the lac implemented role-play for the fact-finding interview. the feedback provided by the lac director demonstrated that allowing the student advisers to practice increased their confidence in carrying these out online, which achieved the learning outcome of the activity. whilst it is acknowledged that some simulations are “not a substitute for live-client interactions”6, the students were fully engaged in this activity and it provoked an effective response.7 during the lac’s live-client sessions, they found the use of skype to phone relatively easy to use. the lac encountered no real issues, and the connectivity and quality of the calls remained good. the lac, by trial and error, learned that “‘[t]he big game changer is the power of technology to pull back the curtain of mystique”8. the lac have remote case management software, and the ‘virtual’ office element was already 6 weigold, u.h, ‘the attorney-client privilege as an obstacle to the professional and ethical development of law students’ (2006) 33 (3) pepperdine law review, pp 676-722 at 691 7 grimes, r. and gibbons, j, ‘assessing experiential learning – us, them and the others’ (2016) 23(1) international journal of clinical legal education, available at https://pure.york.ac.uk/portal/files/44272535/492_1472_1_pb.pdf (last accessed 23.9.20). 8 langan, m., (june 2013) in ‘legal innovation 2013 new developments in an old profession’, baker tilly publications cited in thanaraj, a & sales, m, ‘lawyering in a digital age: a practice report introducing the virtual law clinic at cumbria’ (2015) 22(3), international journal of clinical legal education, available at: https://www.northumbriajournals.co.uk/index.php/ijcle/article/view/471/863 (last accessed 30.9.20). https://pure.york.ac.uk/portal/files/44272535/492_1472_1_pb.pdf https://www.northumbriajournals.co.uk/index.php/ijcle/article/view/471/863 practice report 161 in place, using intralinks and clio. this also enabled their student volunteers to participate effectively.9 the student volunteers still found the experience of providing advice virtually rewarding and it gave them a chance to gain practical legal experience during a challenging time when most vacation placements were either cancelled or postponed due to covid-19. the services also assisted the lac’s users during a time of uncertainty and stress. 2. the afghanistan and central asian association (acaa) 2.1 background in addition to the above, royal holloway collaborated with the afghanistan & central asian association (acaa). the acaa supports and promotes the social and economic integration of the increasing number of afghan and other central asian refugees arriving in london. the acaa use a community development ethos to support the development of their potential within a mutually supportive framework and work with a wide range of partners to reach vulnerable and isolated individuals and families. the acaa’s core services include: 9 mccrimmon, vickers, r, parish, k, ‘online clinical legal education: challenging the traditional model’, (2016) 23(5), international journal of clinical legal education, available at: https://www.northumbriajournals.co.uk/index.php/ijcle/article/view/565 (last accessed 30.9.20). https://www.northumbriajournals.co.uk/index.php/ijcle/article/view/565 practice report 162 education, training and development opportunities: esol (english for speakers of other languages) for integration, supplementary schools, british citizenship test preparation, business and employment advice and support women’s outreach and women-only projects: empowerment, development, advice and support legal and advice clinics with oisc accreditation, using volunteers and pro bono solicitors, focusing mainly on immigration, housing, business and employment issues social and cultural activities and events promoting community cohesion, music and fitness, volunteering all of these are underpinned by a dedicated team of paid staff and volunteers offering mentoring, support, assistance, translation and interpretation where needed. the acaa’s grassroots and frontline services and activities are vital in supporting vulnerable refugees and migrants in some of the most disadvantaged areas of london to improve their wellbeing, independence, aspirations and integration. the acaa aim to break down language and cultural barriers and give their community a voice. the acaa’s work resulted in being awarded the queen’s award for voluntary services in 2018. the acaa works primarily within the afghan, syrian and central asian communities in london specifically in hounslow (where their main centre is based); lewisham practice report 163 (where they started), croydon, merton, greenwich, epsom, hillingdon, brent and ealing, wiltshire, leicestershire, berkshire, cambridge, doncaster, mansfield, worcestershire, staffordshire, kent, east london, newham, staffordshire, sutton, brighton and hove, southwark, birmingham and wales where they have outreach operations and particular projects. the acaa provide services and activities for all ages but are primarily focused on working age adults, families, and children. recently, acaa has been trialling telephone support for refugees and recent arrivals in five areas outside london. across the services and activities acaa now reaches over 10,000 people annually, with around 5000 accessing direct support. approximately 75% of their service users are refugees and recent arrivals into the uk, and the rest are predominantly muslim bame people of afghan, central asian, south asian and middle eastern heritage. the acaa provides services to some specific vulnerable groups – children and young people, women, the elderly and recent migrants of all ages seeking support to learn english and understand uk systems. in 2018-19 the acaa provided esol to 450 people, 300 children attended their supplementary schools, and 250 women attended a weekly women’s project. the acaa’s social media platforms extend their reach across the uk and almost doubles their audience. practice report 164 2.2 impact of covid-19 on the acaa during the covid-19 pandemic, acaa shifted its regular london-focused enquiry and support service to online and phone only to comply with social distancing. the acaa closed their premises for an indeterminate length of time and suspended delivery of their main face-to-face services across london. however, they found that numbers of people were attending their office in person because they are finding it difficult to understand and observe social distancing rules; the acaa have agreed to see these people if there is an advisor available. enquiries for support and advice have surged; they are receiving around 30 calls per day from vulnerable, elderly, sick and disabled people. they are still supporting victims of domestic violence and asylum seekers on a range of topics including support with citizenship applications, universal credit, financial issues, tenancy support and domestic violence. issues often centre on language and cultural barriers. they provide a vital translation and interpretation service particularly for recent arrivals with very limited english. enquiries coming to the acaa are driven by misunderstandings, different cultural expectations, and a mistrust of public services. the acaa’s capacity to respond has substantially reduced as staff and volunteers self-isolate or have been furloughed; some because they are unable to provide their usual services and some to reduce costs. during the height of the lockdown restrictions, the acaa were having to turn people away, which raised concerns about practice report 165 the negative impact for community members and the possible reputational risks to the organisation. the shift to online and phone support has now highlighted weaknesses in their it and phone systems and they have identified training and equipment needs for volunteers and staff in order to operate a satisfactory remote service. in september last year they took on a 10-year lease on a two-storey building in feltham, west london, which they are developing as a multi-use community centre. the acaa has been using its facilities, particularly a ground-floor hall, community kitchen and spare offices to host events, other small local organisations and activities generating a steady and secure unrestricted income source to meet gaps in other grant funding for services. since the lockdown was announced in march, the acaa has had to close their premises causing a significant fall in income and resultant risk in their ability to cover their own rental bill. the acaa believe the closure of their building is costing around £20,000 per month. the acaa has also had to cancel a number of external events, such as their flagship annual refugee week summer festival in june, an event that has generated up to £16,000 in previous years. 2.3 impact of covid-19 on the people acaa supports refugees and migrants from afghanistan, and central asian countries are a small but growing community and comparatively new to the uk. ongoing conflicts in the countries of origin often result in trauma and health issues affecting settlement and practice report 166 integration in the uk. they are one of the most vulnerable communities in the uk. support networks and organisations are few and relatively underdeveloped. even before the lockdown, refugee communities experienced a range of issues of which language and cultural barriers and a lack of access to mainstream services are the most important. many experience poverty, loneliness, social isolation, hate crime, and some may risk radicalisation. resulting from the trauma of experiencing conflict in their countries of origin and displacement, many of acaa’s service users suffer with mental health problems and lack a sense of identity and belonging. a high proportion of afghan and central asian immigrants to the uk (refugees and migrants) are self-employed (e.g. as taxi drivers) or work in low-paid long-hours sectors such as catering, hospitality, and small retail. patriarchal attitudes mean that women rarely socialise outside the family and some are actively prevented from going out alone or into mixed sex environments. many women face barriers to accessing services due to the multiple disadvantages of poor english language skills, lack of literacy in their home languages and hence in english and having the men of their families speaking for them. many people are low paid, work in the ‘gig’ economy or are self-employed. many work at heathrow airport or for businesses that serve the airport and they are being affected by the reduction of activity at the airport. many operate micro-businesses with turnovers below the thresholds for government intervention. the acaa report that around 80% of their service users suffer from mental ill health. social distancing practice report 167 and self-isolation measures have therefore had a huge impact on many families reliant on these low and intermittent incomes. children are now isolated at home with parents struggling with home schooling, lack of facilities and in poor housing stock. many people have been furloughed or laid off and many are now finding themselves having to apply for universal credit. acaa is already aware that social isolation and distancing puts pressures on households and causes an increase in domestic violence. many are experiencing exacerbated mental health issues due to loss of jobs, emotional stress, loneliness, and bereavement of relatives and friends. many users of the acaa are frightened of the impact of the disease itself especially given that over a third of covid-19 deaths are amongst bame communities across the uk. acaa has found that public information circulates in english, which is not the first language of clients, which leads to confusion and uncertainty. many community members rely on afghan media which focuses on the situation in afghanistan not the uk. poverty, poor literacy (in mother tongue and english) and poor oral english language skills mean there is no real digital alternative, which leads to further isolation and barriers to accessing services. consequently, many community members do not access information in mainstream ways and can be misled by misinformation, misunderstanding online information, and relying on hearsay. community members are reliant on community organisations such as acaa for accurate and timely information and advice. afghan and central asian communities are hard to reach for mainstream and statutory service providers and acaa are the only afghan charity practice report 168 operating in west london supporting some of the most vulnerable communities in the city. 3. the power of public legal education: collaborative project in these uncertain times, and with limited resources, the lac at royal holloway and acaa are working together on a project, which formed part of the summer vacation placements. the aim of this project is to increase access to both users of the lac at royal holloway and acaa to legal information and guidance, that is presented in a way that deals specifically with covid-19 related legal issues. both the acaa and lac at royal holloway wanted to empower their users by creating ‘accessible’ information to help them assert their rights.10 with covid-19 social distancing and self-isolation measures now in place, the student volunteers at royal holloway’s first mission was to research and produce legal and rights-based factsheets. the following areas of law were selected as the main areas of concern: 10 see newsletters as an example at the student law office at northumbria university: bengtsson, l. ‘client newsletters within clinical legal education and their value to the student participants’, (2020) 27(2), international journal of clinical legal education – available at: https://www.northumbriajournals.co.uk/index.php/ijcle/issue/view/90 (last accessed 28.9.20). https://www.northumbriajournals.co.uk/index.php/ijcle/issue/view/90 practice report 169 • employment (e.g. those affected by furlough and universal credit) • social isolation and domestic abuse • housing vulnerabilities in addition, the student volunteers at royal holloway’s lac, together with the acaa are looking into how legal factsheets can be used to improve the transformation of the online space and resilience among their users. the student volunteers will work with external practitioners who will provide pro bono support. the collective aim is to provide accurate and timely information and advice, which is free from legal jargon.11 the student volunteers have been engaged in research on a variety of issues while recognising the vital need for afghan and central asian communities to have accessible information. for instance, charlotte cowdery (llb law) has been researching housing issues for homeowners, landlords and tenants and appreciates how these communities are disproportionately affected by the pandemic. aliyah spacey-smith (llb law) has been focusing on domestic abuse and how cases have risen during the pandemic and a variety of helplines for victims to access. aliyah notes “[t]here are further difficulties for people in minority groups, such as those from afghanistan and central asia, in accessing the help they need due to language 11 roper, v. ‘blogs as a teaching tool and method of public legal education: a case study’ (2018) 2(1), international journal of public legal education available at: https://www.northumbriajournals.co.uk/index.php/ijple/article/view/707 (last accessed 30.9.30). https://www.northumbriajournals.co.uk/index.php/ijple/article/view/707 practice report 170 barriers and lack of knowledge on their rights in the uk, therefore it is important to provide these leaflets in order to help them access relevant services.” student volunteers are developing deeper understandings of the inequalities and hardships faced by minorities in the uk which will be invaluable for when they graduate and begin their careers. in addition, the student volunteers are from various disciplines of study, and thereby have an opportunity to learn from each other as they draw on their conclusions together:12 “this research has allowed me a to delve deeper into the financial consequences of the pandemic in england and has developed my understanding of not just the basic economic impacts of covid-19, such as job losses, but also how this has led to greater struggle in the lives of the public. these struggles causing devastation specifically within the refugee population within england, a group that society seems to massively overlook when it considers those most effected by the pandemic.” jasmine urry (bsc sociology and criminology). “i'm currently in the process of investigating the mental health implications for the afghan community during the global pandemic. prior to covid-19, this minority have faced hardship when dealing with mental health; often excluded from their local 12 hyams, r. and sadique, d, ‘the value of incidental learning in a multidisciplinary setting’ (2014) 20(1) international journal of clinical legal education, vol 20 (1). available at: https://www.northumbriajournals.co.uk/index.php/ijcle/article/view/16 (last accessed 30.9.20). https://www.northumbriajournals.co.uk/index.php/ijcle/article/view/16 practice report 171 communities, victims of racism and xenophobia mean they're more likely to suffer from anxiety and ptsd. unfortunately, the pandemic has only served to exacerbate these experiences and research indicates that little is being done nationally to ease these struggles. this has been particularly eye-opening and frustrating to research as minority demographics within the uk are so frequently side-lined and their struggles ignored.” rosie cannon (bsc sociology and criminology). "i have been responsible for looking into the effects coronavirus has had on the psychological and societal resilience of the afghan and central asian community. so far, the area has been very interesting to research as psychologists have scrambled to identify factors that may be affected by the current pandemic, which has produced some fascinating papers. i hope to be able to use this present research to formulate a useful insight into the effect the coronavirus is having on this community." will rawson (msc forensic psychology). the student volunteers are investigating topics not typically covered in their modules and issues that are experienced differently by minorities compared to some other lac service users. this gives the student volunteers a unique opportunity to both enhance their studies, engage with an organisation such as acaa, and improve their understanding of the law in the ‘real world’.13 13 mcnamara, j. and campbell, c., ‘community projects: extending the community lawyering model’ (2014) 21(2) international journal of clinical legal education, vol 21(2). available at: https://www.northumbriajournals.co.uk/index.php/ijcle/article/view/385 (last accessed 30.9.30). https://www.northumbriajournals.co.uk/index.php/ijcle/article/view/385 practice report 172 student volunteers are also looking at the effects covid-19 is having in afghanistan. in particular, the student volunteers are focusing on how this global pandemic is impacting women’s access to rights in afghanistan, including disabled women, as well as others with disabilities. recent reports have suggested that lockdown and quarantine measures will have a long-term impact on the basic rights and freedoms of afghan women, who already face hardship. the recent oxfam briefing note14 highlights that covid-19 is “exacerbating the inequalities afghan women face”, and that it is vital that responses are adapted to deal with the implications this outbreak has for women. as the project progresses the lac intends to work more closely with the acaa’s partners in afghanistan. 3.1 acaa’s citizens’ advice centres in kabul and pul-e khumri in 2013, two citizens’ advice centres were funded in kabul and pul-e khumri by the uk government (dfid) for three years starting in july 2013. they opened in september 2013 and aimed to give free, impartial legal and other advice to the most 14 a new scourge to afghan women: covid-19, oxfam briefing note, available at: https://oi-filescng-prod.s3.amazonaws.com/asia.oxfam.org/s3fspublic/file_attachments/covid%2019.%20a%20new%20scourge%20to%20afghan%20women_oxf am.pdf (last accessed 23.9.20); afghanistan coronavirus socio-economic impact assessment (july 2020), united nations development programme, available at: file:///c:/users/nicola/downloads/undp-socio-economic%20impact%20assessment-afghanistanbrief2.pdf (last accessed 23.9.20). https://oi-files-cng-prod.s3.amazonaws.com/asia.oxfam.org/s3fs-public/file_attachments/covid%2019.%20a%20new%20scourge%20to%20afghan%20women_oxfam.pdf https://oi-files-cng-prod.s3.amazonaws.com/asia.oxfam.org/s3fs-public/file_attachments/covid%2019.%20a%20new%20scourge%20to%20afghan%20women_oxfam.pdf https://oi-files-cng-prod.s3.amazonaws.com/asia.oxfam.org/s3fs-public/file_attachments/covid%2019.%20a%20new%20scourge%20to%20afghan%20women_oxfam.pdf https://oi-files-cng-prod.s3.amazonaws.com/asia.oxfam.org/s3fs-public/file_attachments/covid%2019.%20a%20new%20scourge%20to%20afghan%20women_oxfam.pdf practice report 173 vulnerable people in afghan society in order to help them improve their quality of life, access their rights and help them escape poverty. over the three years of the project until july 2016, over 7,500 people used the centres’ services including 2,000 people who received individual legal advice. the biggest single issue that they were asked for advice about was domestic violence, followed by unemployment, divorce, poverty and murder. 28% of cases were related to family problems, 16% concerned poverty, health and other social issues, whilst 15% were criminal cases. over the three-year period 65% of clients were women, 56% were illiterate, and 79% were unemployed. numbers of women, illiterate and unemployed people using the services increased every year reflecting both their success in reaching out to these groups and the worsening situation for employment for many afghan citizens. an example case was that of ‘gulmay’. gulmay had been a widow for more than three years. her daughter’s uncle was planning to get gulmay's daughter married by force to a man who was 10 years older than her. the girl was completely opposed to the plan. gulmay and her daughter came to the citizens’ advice centre in kabul for help. the adviser informed gulmay that marriage is something that can only be carried out if the person consents to be married; forced marriage is illegal. the adviser also told the girl to bring her uncle and other family members to the office so that the adviser could act as a mediator, first to convince her uncle that forced marriage is illegal and, therefore, not a possible option. the adviser told her that if the uncle was still practice report 174 unwilling to change his mind, he would be introduced to the attorney general at the ministry of women's affairs and would face legal implications. following the consultation, the case was resolved, and all parties agreed to cancel the marriage plan because of the illegality of the matter. the centres ran family mediation services by themselves or with local elders and took cases to court where settlement was not possible. the centres also referred clients to other non-governmental organisations, the local authorities, ministries, and health services, where specialist services were available. the centres were partnered with the ministry of women’s affairs as well as with the ministry of refugees and repatriation. the centres were members of the afghan women’s network, the afghan civil society forum and worked with over 50 organisations for referrals for specialist advice. over 90% of mediation cases were resolved successfully, as were 60% of the cases in court. 20% of court cases were unsuccessful and 20% of court cases experienced long delays. over 7,500 people attended outreach sessions. sessions were run on rights (women’s rights, disabled peoples’ rights, widows’ rights, rights for returning refugees and idps [internally displaced people]); promoting education for girls and boys; health (maternal health, nutrition, diabetes, depression, winter health checks for idps, sports); and the environment. practice report 175 acaa received a small grant to extend outreach to women’s prisons from the evans cornish foundation. this meant an extra female lawyer working in each centre to increase the capacity to visit prisons and help women there understand their cases and rights, many of whom were imprisoned with their children due to so-called ‘moral crimes’.15 based on acaa’s experiences in providing legal advice in afghanistan there is certainly a need for accessible and free legal advice in many areas of law. however, contracting funding environments could limit acaa’s future effectiveness internationally. by working with the lac at royal holloway, acaa has access to student volunteers and supervising solicitors who can provide free advice on programme development. future projects will consider what other contributions the lac can make to acaa’s activities in afghanistan. 3.2 future work royal holloway and the acaa will continue to work together to provide free legal support to those whose needs are often unmet in the community. with the aid of a research grant supporting international collaboration, the long-term goal of the acaa and royal holloway is to set up a legal advice centre in afghanistan that provides free legal advice and support to women and those with disabilities. they hope that 15 see reports: https://acaa.org.uk/reports/ https://s3-eu-west-1.amazonaws.com/acaa-uploads2/afghanistan+work+.pdf https://acaa.org.uk/reports/ https://s3-eu-west-1.amazonaws.com/acaa-uploads2/afghanistan+work+.pdf practice report 176 the literature review and research that is currently being undertaken will help identify the most pressing issues that need addressing amongst these community groups so that legal provisions can be set up. the recommendations set out in the oxfam briefing note16 highlight the need for gender-based violence responses and programming, as well as providing safe spaces for women and girls at risk. in addition, a key recommendation is: “direct funding must be accessible to subnational and local organisations, especially women's rights organisations. un agencies and ingos should use existing mechanisms that reach local and national partners to flexibly channel international funding, ensuring that local partners are designing and delivering assistance and support that is most suited to their communities right now. this especially concerns gender-focused funding, as less than 1% of gender-focused funding goes to women’s rights organizations globally.” the united nations sustainable development goals and the uk’s global challenges research fund (gcrf) repeatedly highlight priority is to be given to alleviate disadvantages experienced by women, to empower women, and help realise gender equality and gender justice.17 royal holloway and acaa hope that a legal advice 16 a new scourge to afghan women: covid-19, oxfam briefing note, available at: https://oi-filescng-prod.s3.amazonaws.com/asia.oxfam.org/s3fspublic/file_attachments/covid%2019.%20a%20new%20scourge%20to%20afghan%20women_oxf am.pdf (last accessed 23.9.20) 17 see https://sdgs.un.org/goals/goal5. see also https://www.ukri.org/our-work/collaboratinginternationally/global-challenges-research-fund/ https://oi-files-cng-prod.s3.amazonaws.com/asia.oxfam.org/s3fs-public/file_attachments/covid%2019.%20a%20new%20scourge%20to%20afghan%20women_oxfam.pdf https://oi-files-cng-prod.s3.amazonaws.com/asia.oxfam.org/s3fs-public/file_attachments/covid%2019.%20a%20new%20scourge%20to%20afghan%20women_oxfam.pdf https://oi-files-cng-prod.s3.amazonaws.com/asia.oxfam.org/s3fs-public/file_attachments/covid%2019.%20a%20new%20scourge%20to%20afghan%20women_oxfam.pdf https://oi-files-cng-prod.s3.amazonaws.com/asia.oxfam.org/s3fs-public/file_attachments/covid%2019.%20a%20new%20scourge%20to%20afghan%20women_oxfam.pdf https://sdgs.un.org/goals/goal5 https://www.ukri.org/our-work/collaborating-internationally/global-challenges-research-fund/ https://www.ukri.org/our-work/collaborating-internationally/global-challenges-research-fund/ practice report 177 centre that replicates, builds on, and develops the services acaa set up in 2013 will provide a ‘gender sensitive’ space to protect the legal rights and safety of women in afghanistan. in early september, royal holloway and acaa successfully applied and were selected to host a being human café as part of the being human: a festival of humanities programme organised and set up annually by the school of advanced study, university of london and funded through the arts and humanities research council and the british academy. the café “afghan women small spaces café: sewing pathways to human rights” will take place in acaa’s community hub, by phone and on zoom. meeting over afghan tea and cake during english and sewing classes, afghan diaspora women and researchers will use mixed participatory methods including artwork, sewing and conversation to explore what everyday habits and material objects tell us about ourselves and each other. these and other particular culturally specific lived experiences will be connected to human rights law’s purpose of ensuring universal dignity, equality and rights. this is one example of a short-term project that will contribute to the wider goal of pursuing funding to both the afghan and central asian community in the uk and communities in afghanistan. practice report 178 4. conclusion both royal holloway’s lac and acaa have found that covid-19 has magnified preexisting inequalities amongst its users and its services. covid-19 has also forced many charities and organisations to work together to reach those who need continuing legal help. by developing an existing relationship with acaa, royal holloway has been able to provide both support to communities and enhance the experience of their student volunteers in the lac. student volunteers have researched a multitude of legal issues that adversely impact afghan and central asian communities in the uk. the next step is to have the student volunteers begin research on the impact of covid19 in afghanistan to lay the groundwork for future lac and acaa work in the country. the global pandemic has harmed countless individual and families but has successfully brought together organisations who can pool resources to provide assistance. the experience of the lac with the remote summer placements will allow them to be resilient to future unexpected events and has created a fruitful partnership with acaa, which they can build on to pursue funding to assist acaa’s communities18. 18 curran, l., ‘university law clinics and their value in undertaking client-centred law reform to provide a voice for clients’ experiences’ (2007) 12 international journal of clinical legal education. available at: https://www.northumbriajournals.co.uk/index.php/ijcle/article/view/73 (last accessed 30.9.20). https://www.northumbriajournals.co.uk/index.php/ijcle/article/view/73 310229_april ed 2 inner the development and expansion of university-based community/clinical legal education programs in malaysia: means, methods, strategies bruce a. lasky1 and associate professor norbani mohamed nazeri2 the development and expansion of university-based community/clinical legal education programs in malaysia 59 1 bruce avery lasky is a founder and director of the bridges across borders southeast asia community legal education initiative (babsea cle). he is also an adjunct professor or visiting professor at a number of universities in the southeast asia region, including chiang mai university in thailand and the trade union university viet nam, where he assists in the further development of their clinical programs, with a current significant focus on viet nam. he is a member of the global alliance for justice education (gaje) steering committee and a founding director of the international not-for-profit organization, sustainable cambodia. (blasky@babseacle.org) 2 norbani mohamed nazeri is an associate professor at the faculty of law, university of malaya. she is the coordinator of the cle/cop program at the faculty. she specializes in juvenile justice and welfare, law of evidence and criminal law. (norbanim@um.edu.my) 60 international journal of clinical legal education summer 2011 3 bridges across borders southeast asia community legal education initiative (babsea cle), was originally established as a program of bridges across borders in 2003, which registered as a notfor-profit that same year in florida, the united states. in 2010 babsea cle independently registered as its own not-for-profit in florida, united states, in order to pursue its own, yet complimentary mission. babsea cle focuses on the development of university-based clinical legal education programs as well as grassroots community-based legal advisor/paralegal program support. the babsea cle mission is to empower vulnerable and underserved individuals and communities by creating and strengthening sustainable legal and human rights education and access to justice programs worldwide. this mission is accomplished by working globally to connect people, organizations, and resources at the government, non-governmental, institutional, and grassroots levels through community and clinical legal education programs. these experiential, interactive, and cross-cultural education programs support local struggles for social justice, equitable development, rule of law and protection of human rights while endowing people with a lifelong ethic of social responsibility and public service. 4 babsea cle uses the broad term community legal education (cle) when referring to its overall program, which includes working with grassroots communities as well as universities. babsea cle uses the term clinical legal education when referring only to university-based programs. 5 for example, at pannasastra university of cambodia, the cle program was set up in 2003 as an interdisciplinary accredited course program where students from all streams and faculties are permitted to enroll in the cle community teaching program. beginning in 2003, the not-for-profit international human rights organization bridges across borders southeast asia community legal education initiative3 (babsea cle) began focusing on assisting in the development and expansion of university-based community/clinical legal education programs4 in the southeast asia region. since that time, and as a result of this focus, universitybased cle programs have been developed or expanded in thailand, malaysia, cambodia, viet nam, indonesia and laos, with a continuously growing network of universities, both nationally and regionally. one of the flagship achievements of these activities has been the successful establishment of an accredited cle program in malaysia at the university of malaya. finally the paper will identify strategic next steps in the development of this cle movement within malaysia, as well as its connection to institutions regionally throughout southeast asia and how the cle movement intends to broaden its reach both within malaysia and internationally. clinical legal education defined clinical legal education is a progressive educational system most often implemented through universitybased faculty of law programs to help develop better-trained, more socially conscious ethical lawyers. yet, while this type of educational program is often implemented by law faculties, it is not limited solely to such institutions and can readily be practiced by a wide assortment of other faculties and in interdisciplinary programs.5 clinical legal education is a process whereby students learn by doing. it is an experiential problemsolving based model, in which students actively involve themselves in either real client/personal interaction or simulation lessons set up to mirror real client/personal scenarios. the process is conducted under the supervision of experienced law clinicians and legal practitioners. as a teaching device, this type of experiential problem-based learning is considered a highly effective means of adult learning where, unlike in rote memorization situations, students can learn and retain a vast amount of what is taught. the use of this interactive method of teaching focuses these students on becoming more able, thorough and ethical advocates, solicitors, governmental and private employers/employees, as well as global citizens. the goal of clinical legal education what are the goals of clinical legal education? clinical legal education seeks to achieve multifaceted goals. although this list is not exhaustive, some of these goals include: a) providing a progressive method of education that focuses on students learning and improving skills that they will utilize as attorneys and in other professional positions. these skills include those abilities needed to effectively represent clients through the use of ethical value-based actions. b) applying experiential learning methods with students to give them the opportunity to learn more effectively and apply what they learn to actual realistic situations in a way that traditional teaching, through a lecture-based system, can never do. c) to provide “back up” legal services and other services for indigent and marginalized community members who may not have an alternative access to the legal and other support systems. d) developing within students the idea of public interest service, with a simultaneous goal of formulating and increasing an ethically aware, proactive community. e) providing ways and means for clinical professors to make important contributions to the development of scholarship on skills and theories of legal practice that can provide closer links between the legal bar and the academy. f) strengthening civil society through supporting lawyers’ responsibility and providing legal services to the vulnerable who find it hard to access legal services. clinical legal education is a fervent mechanism which can be used to reach these aspirations as it both helps to instill a public interest centered character within students and then pragmatically builds on this character to professionally train the students, via experiential teaching methods, how to reach such objectives. clinical legal education exposes students to the actions and inner workings of communities and in doing so, gives these students insight into issues affecting marginalized groups of persons. through this exposure, students begin to understand and learn that they have the ability to make a positive societal difference through their skills as advocates and educators. the development of clinical legal education in southeast asia and babsea cle’s role clinical legal education is somewhat new to the southeast asia region. the basic model of clinical legal education, simply defined as students and university faculties somehow involved in the provision of basic legal consultation services, has existed in some southeast asian countries for more than two decades. more than twenty-five years ago, thammasat university in bangkok established a clinic that focused on providing a broad variety of legal services to the public. other thai universities, such as chiang mai university (cmu), followed thammasat university’s lead and model and created programs centered on providing free legal advice and consultation to members of the community. established in 1994 and staffed by students and professors on a the development and expansion of university-based community/clinical legal education programs in malaysia 61 volunteer basis, the cmu program not only provides free legal counselling to the community, but also serves the additional function of instilling the idea of duty and public service into the minds of the participating law students. similar types of non-credited, voluntary legal aid or legal service clinics have been established at a variety of universities in indonesia, including the university of indonesia in jakarta, where students and professors work with actual clients. a number of other programs allow for students to work alongside lawyers at legal aid societies as a type of internship experience. in malaysia, limited clinical programs began more than twenty years ago at universiti teknologi mara, where final-year students learned lawyering skills through a simulated program requiring them to work in a mock legal firm or clinic. while the philippines has had clinics for more than two decades, initially supported by the ford foundation, most other clinic type programs existing in the region were more service-related clinics, with little to no jurisprudential pedagogy being used, and without a specific focus of working with marginalized and vulnerable communities. during this period, while there was some international support for more modernization of legal education in the region, this aid was centered around the more traditional legal education models and not clinical legal education. this began to change during the early part of this decade with the development of a clinical legal education program in cambodia with the help of the open society justice initiative and bridges across borders southeast asia community legal education initiative, as well as in indonesia, and more recently in vietnam, where the united nations development program is now fully engaged in advocating the support of cle initiatives.6 despite the existence of all these programs, there was no consistent clinical legal education model that provided both a social justice mission and simultaneously integrated the program into an accredited legal education course—with the exception of the philippines. strongly influenced by developments in the united states, the clinical movement in the philippines was much more expansive than those of its neighbouring countries, taking root first at the university of the philippines and then spreading outwards to universities such as the university of ateneo. the structured programs in the philippines, unlike those at law faculties elsewhere in the region, were not only incorporated into the university curriculum, but also charged with the mission of providing much-needed legal services to socially vulnerable, marginalized, and economically deprived members of the community. these clinical programs and the schools which incorporated them are currently involved in an almost-religious mission to spread clinical legal education throughout the country, with some schools making clinics a mandatory course and others setting them up as an elective subject. more recently, the model adopted in the philippines—once an anomaly in southeast asia—has been recognized increasingly as an effective means of creating a more social-justice-minded legal 62 international journal of clinical legal education summer 2011 6 in june 2010, babsea cle and its local vietnamese partner, the institute on policy, law and development vietnam (pld-vietnam), were engaged by the undp to spearhead an applied cle research project throughout viet nam, whereby they will be working with universities throughout the country to develop and/or strengthen cle programs by, in part: 1) assessing the value of different forms of support to clinical legal education programs in viet nam; 2) demonstrating how cle programs contribute to the enhancement of legal education in viet nam through improving the educational and lawyering skills value of students enrolled in law faculties; 3) providing evidence-based and objective recommendations to assist the government of viet nam, university law faculties, undp and other development partners to formulate broader and longer-term programs of support. the development and expansion of university-based community/clinical legal education programs in malaysia 63 profession and a more progressive legal education pedagogy. for example, pannasastra university of cambodia (puc) established a fully accredited, social-justice-oriented, clinical program in 2003 with support from the open society justice initiative (osji), which had a long history of assisting in the development of clinical legal education in eastern europe and africa, and with the support of babsea cle. puc’s clinical program began as a two-section clinic, with one section involved in community legal education activities—often referred to as street law—and the other section working as a live-client legal services clinic where students worked with a local non-governmental organization (ngo) to provide legal aid services to indigent persons accused of crimes. the strategy was to establish this type of program and then use it as a demonstrative model to promote clinical legal education within cambodia and in neighbouring countries. by late 2005, a significant number of outreach activities had occurred in nearby countries, including thailand, indonesia, laos, malaysia, viet nam, and singapore. potential additional partners and supporters had been identified, and other organizations began to show interest in the development of clinical legal education in select southeast asian countries. all of these activities resulted in the first southeast asia clinical legal education conference held in phnom penh, cambodia, in november 2005. the conference, using the puc legal clinic as a type of model, provided a forum to discuss opportunities and challenges for creating clinical programs at southeast asian universities, as well as the role of clinical legal education in promoting access to justice and a culture of pro bono service. aimed at fostering an environment in which participants could exchange ideas for promoting clinical programs, the conference was attended by more than eighty representatives from universities, the legal community, and southeast asian civil society—as well as regional and international experts on clinical education and access to justice. many who attended came from countries in southeast asia interested in establishing clinical programs, while others were already engaged in clinical legal education and were interested in expanding their programs to include both a social justice theme and an accredited course program. a companion workshop to the phnom penh conference—the first southeast asia clinical legal education training of trainers workshop—was held at the university of ateneo in manila in early 2007. similar to the first conference in phnom penh, the manila workshop acted as a means of training nascent clinicians, focusing on the development of clinical programs, clinical teaching methods, and administrative skills. the workshop also served as an opportunity to expose the participants to, and develop linkages with, more established clinical programs, further cultivating network contacts among clinicians in the region initiated at the phnom penh conference. both the phnom penh and manila events seem to have achieved many of their desired objectives, having played a part in the establishment of a number of additional accredited social-justiceoriented clinical course programs. for example: the university of malaya launched the first accredited clinical program in malaysia in 2008; in 2009, cmu, after operating a completely volunteer-supported, in-house consultation clinic for fifteen years, approved and implemented a two-section, fully accredited clinical program consisting of both an in-house consultation clinic and a parallel community legal education section; and in 2009 the national university of laos faculty of law and political science began working on having its community legal education program approved to be included as one of the selective options for its mandatory student field 64 international journal of clinical legal education summer 2011 7 street law is a registered trademark of street law inc a non-profit organization based in the united states (www.streetlaw.org). both the georgetown university street law clinic and street law inc., provided significant technical support, advice and materials, in the process of developing these community legal education clinic programs. studies requirement. the bona fide potential for a significant number of other such programs in southeast asia continues. relying on lessons learned and models of successful clinic programs and networks, babsea cle is currently active in thailand, cambodia, viet nam, laos, malaysia, the philippines, indonesia and singapore and has established working partnerships with a number of university, governmental and non-governmental as well as community-based organizations throughout the southeast asia region. babsea cle is actively working to encourage cooperation between these programs as well as amongst the larger legal community in southeast asia. operating in so many southeast asian countries at the same time is a challenge babsea cle faces with its cle initiative. however, while acknowledging the existence of this challenge, babsea cle also sees it as a very logical and strategic step in simultaneously working with a variety of partners for a number of reasons. firstly, babsea cle’s objective is to work with each of these partners to develop pilot cle programs in each country and use these core cle programs to then broaden the reach of cle throughout southeast asia. as many of these partner universities are located in different, yet neighboring countries, this greatly assists in the outreach efforts. each neighboring country has a different type of legal and educational system. yet with all their differences, each country is ready and able to begin and support cle programs. secondly, each of the cle programs is somewhat similar in nature and the partners learn from each other, from the beginning, as their cle programs are being developed. most of the university partners eventually intend that their programs use a similar two-section clinic model, one focused on in-house legal consultation and referral services and the other section focused on providing community legal education. due to this similarity in programs, there are many lessons that can be learned from each of the universities that will likely be strongly pertinent. in working closely with each partner, babsea cle is able to apply and share working models and systems, lessons, curriculum, etc., from each of the programs while helping to avoid and not re-apply challenges and obstacles that have arisen in one or more other programs. as mentioned in brief above, one way in which babsea cle works to achieve the outcomes of social justice through practical education is by ardently promoting and assisting in the implementation of university-based community legal education clinic programs. originally begun at georgetown university in washington d.c. in 1972, cle programs have been implemented throughout the years by universities around the world. they are also referred to by many schools as “street law”7 or “practical law” programs. these university courses teach students about law, human rights and civics and then teach them how to teach legal rights in the community, in a student-centred, participatory manner. the university students take both their substantive legal knowledge, as well as their acquired pedagogical skills, and transfer this knowledge and these skills to marginalized communities. through this process, the students learn by doing, as they simultaneously teach and learn from the recipients of their lessons. this carries with it a strong reflective learning approach. we often find that the law students learn much more from their community students, simply by being exposed to individual and community problems and issues that are new to them. the cle programs utilize a wide variety of student-centred activities in their teaching methods. in part, these methods include role plays, simulations, mock trials, games, debates, small group discussions, opinion polls, field trips and street theatre.8 cle programs focus on working with people in a practical way, to understand how they can access both the formal and non-formal justice systems, as well as effective, empowering methods to advocate for social justice and change. the cle programs not only raise awareness of the law and rights of persons in a theoretical manner; the community teachings provide practical information on how to assert these rights and protections, as well as some of the effective mechanisms for doing so. moreover, the programs encourage persons at grass-roots levels to reflect on their current and future legal, social and economic environments, and provide empowering ways to improve these arenas. all of this is accomplished with an aim of doing so in a practical and simple manner. the communities which the students go to are exceedingly varied and wide ranged. they have included, in part, prisons, juvenile detention centres, community centres, domestic violence shelters, life skills teaching organizations and lower socio-economic high schools. the communities are located in both urban and rural areas of countries. in many of the countries we work in, the students often go to areas where there is little to no understanding of the law or of people’s rights. at the same time, the students frequently involve themselves in non-law-related projects to immerse themselves in the communities and gain a better understanding of the hardships of others. in university based cle programs, the targeted communities vary, ranging from those of urban areas, rural areas, government staffs, community organizations, youth organizations, community leaders, correctional houses, religious organizations to high school students.9 other programs focus a significant portion of their teachings on prison and juvenile justice settings,10 ethnic minority communities11, single mother shelters12 and drug rehabilitation centers.13 the determination of the targeted communities very much depends on demand from, and cooperation with, the communities themselves. for instance, beginning in december 2007 the cle program at international islamic university indonesia, through a program called legal service outreach: community empowerment to achieve equality of rights and improve access to the development and expansion of university-based community/clinical legal education programs in malaysia 65 8 see david mcquoid-mason, south africa street law practical law for south africans, 2nd edition, juta law co, ltd. 2004. 9 nandang sutrisno, community legal education (street law) program at the faculty of law islamic university of indonesia nandang sutrisno (dec 713, 2008) (paper presented at the global alliance for justice education conference, manila, philippines). 10 chiang mai university, thailand, university malaya, malaysia, and pannasastra university of cambodia. 11 chiang mai university and national university of laos faculty of law and political science. 12 universiti teknologi mara, malaysia. 13 national university of laos faculty of law and political science, lao pdr. justice, has focused the cle program in areas most devastated by the catastrophic earthquake of 2006.14 as can be expected, many challenges exist when introducing new, and often unheard of, methods of education in trying to get across cle/social justice ideology. while faced with these challenges, babsea cle acknowledges the incredible advancement and success in the expansion of cle in southeast asia. some of these cooperative cle successes have included: • jointly attended community legal education teachings by both professors and students alike from throughout the southeast asia region. • organizing more than two dozen thematic cle regional workshops and conferences since 2005. • regional strategic program planning development sessions. • continuously working with experienced clinicians and senior students from partnered programs to assist other, more nascent cle programs to develop. • quarterly student and professor cle exchanges throughout the region. • joint research and academic paper development by regional partners. • sharing of curriculum, lesson plans, cle manuals and other resources, between cle partners, both nationally and regionally. • continued enrollment and participation in the babsea cle annual international legal studies internship program, which has been attended by students, professors, and other legal educators from countries throughout the region and around the world. types of support babsea cle provides to cle partners while babsea cle does provide a limited amount of financial support for some of its cle partners, the mainstay of support is in the area of technical support centered on creating local sustainable programs. this has included: • assisting cle partners in the development of activity planning, budgeting, proposal writing and other necessary program tasks. • assisting cle partners with the development of administration procedures and policies and process for clinics. • assisting cle partners with development of legal clinical curriculum, teaching modules and teaching syllabi (including integration of professional ethics). • assisting cle partners to develop a cadre of trainers, through training of trainers programs, to increase capacity in clinical education methodology and pedagogy. 66 international journal of clinical legal education summer 2011 14 these have included kecamatan (sub-regency) imogiri, kabupaten (regency) bantul, and propinsi daerah istimewa (special province) yogyakarta. • facilitating visiting foreign clinic experts to share/exchange experiences with cle partner programs. • co-organizing, with local cle partner hosts, and delivering national and regional workshops for cle partners. • organizing study visits and exchanges for professors and students to other regional and international university legal clinics. • supporting the establishment of national, regional and international networks between clinics. • supporting the establishment of peer-to-peer mentor relationships between existing cle partners and nascent cle programs. • providing general organizational capacity development and training support to cle partners. • supporting the development of linkages between university clinics and legal stakeholders (lawyers, prosecutors, provincial justice departments) and other organizations which may be providing legal assistance. • working with cle partners to help increase the knowledge of communities of their legal rights and obligations and how to access justice through ongoing community programs delivered by law clinics, including the use of needs assessments, base line studies and post-training evaluation. • providing trainings to improve teaching skills and participatory methodologies being implemented by law clinic professors. • assisting cle partners in developing and delivering community advocacy programs. • assisting cle partners to develop fundraising strategies and grant proposals for funding. • assisting in supporting dialogues between cle partners and government/state officials on policy and law reform issues relevant to the operation of law clinics. main commitment requirements for babsea cle partner institutions in helping universities to establish these type of programs, babsea cle has employed an ideology that the collaborative partnerships must be a two-way process. this has meant placing the following requirements on all of its partners: • programs must significantly focus on marginalized and vulnerable communities and individuals and must offer free support. • professors, students, lawyers and others involved in the programs should be strongly encouraged to become involved in a voluntary capacity. • partners must be open and willing to working collectively with other partners and be fully open to share knowledge, ideas and assist other cle programs to germinate and develop. the development and expansion of university-based community/clinical legal education programs in malaysia 67 68 international journal of clinical legal education summer 2011 15 prior to this time, the uitm faculty of law operated, and continues to operate, a simulated cle program which is introduced in the final year for students of the ll.b (hons) program. it is a simulation program in which students are required to work in a mock legal firm or clinic, where they are taught the necessary lawyering skills. • partners must offer in-kind support in some form, usually in the form of offices or premises that are used for cle as well as human resource supervision and administrative materials. • partners must have a concrete plan to infuse the cle program into the core curriculum either as an elective or mandatory subject. malaysia and the expansion of cle babsea cle began cle exploratory visits to malaysia beginning in 2005. various contacts with malaysian universities, the bar council, ministry officials, ngo personnel and other key policy decision makers and implementers were achieved. these initial activities resulted in a number of successes early on, with a fervent and current contemporary expansion. firstly, in 2006 babsea cle helped to organize and facilitate the following three events: 1) the first malaysian cle training of trainers workshop held at the university technology mara (uitm) 2) the first malaysian bar council cle supervisor training workshop 3) the first malaysian cle conference held at international islamic university following these key instrumental events, in 2006 the university technology mara15 appointed babsea cle director bruce a. lasky to the position of adjunct professor to assist in the development of a non-simulated cle program. this resulted in the formal registration of the currently operating student community law club (sclc). the setting up of such a club in the university helps to realize one of the missions of the university in regard to community service programs. the members of sclc, comprised of students from the faculty of law, ranges from the first through fifth semester students. these students join the sclc on a voluntary basis as one of their students’ activities of the faculty. the objectives of sclc are to provide legal knowledge and awareness to the communities. in adopting these methodologies the sclc works with communities who often have a minimal knowledge of the law. these sessions therefore greatly benefit them. in 2007, with the assistance of babsea cle, members of both uitm and the university of malaya were taken on a study visit of cle programs in the philippines. as a result of this visit, and with positive partnership with babsea cle, the university of malaya began to develop what has now become a leading cle program in malaysia. introducing cle to malaysian universities: with particular reference to the university of malaya malaysian law schools strive to have a satisfactory number and selection of courses to cover the essential areas of the law. a common temptation of law schools is the constant search to ensure a sufficient variety of subjects to prepare their students for various vocations. while core subjects are important, one important principle that law schools have come to realize is the necessity of a broad view of legal education in its goal to produce good law graduates. thus the focus of law schools for an undergraduate program, in addition to substantive law subjects, must be the development of intellectual abilities in understanding, critical thinking, reasoning, analysis and application,16 and also to inculcate values and social awareness. this is in line with the spirit of the world declaration of higher education17 to educate responsible citizens who can contribute to society. law students must be inculcated with values and must be made aware of their roles to ensure justice in society as preparation for their future careers, whether as a member of the judiciary, practicing member of the bar, or as an officer to the government.18 to inculcate such values, it is a challenge to all law schools, particularly traditional law schools such as the faculty of law, university of malaya, to realize that the focus of law schools now is not only to transmit knowledge, but to improve course materials and methodology to encourage students to evaluate an issue, test a hypothesis and to find solutions.19 the faculty of law, university of malaya is a professional law school producing graduates with academic and professional qualifications (ll.b hons).20 unlike in england, malaysia has a fused profession.21 established in 1972, the faculty of law, university of malaya then was the pioneer law school in malaysia. with the aim of producing local lawyers and legal officers, the curriculum emphasized mainly substantive law subjects22 (in both private and public law) as well as procedural law23 with greater emphasis on the law in malaysia, such as the malaysian legal system and islamic law. much of the curriculum followed the curriculum taught in english law schools, as malaysia adopts the common law system.24 the structure has been generally maintained and is periodically reviewed to meet the challenging demands of the malaysian legal profession and industrial needs. since its establishment in 1972, clinical education has always been in the faculty’s future plans. it was agreed when the faculty was first established that while teaching the letter of the law is an important function of the law school, it is not the only function.25 what is needed beyond the teaching of the law is a system of legal training devised to assist law students to acquire certain skills of thought, social as well as scientific thinking. law students need to clarify their moral values, social goals, and to orient themselves toward the future. a law student needs to acquire the scientific knowledge and skills necessary to implement objectives within the context of cotemporary trends. it is believed that with a good system in place, the law student will not only become a lawyer for the future but also be a social technician or a social engineer.26 the development and expansion of university-based community/clinical legal education programs in malaysia 69 16 cheong m. f., the role of curriculum in malaysian legal education, masalah pendidikan 2007, jilid 30(2) p.11. 17 unesco. word declaration on higher education the twenty-first century: vision and action. (1998). 18 rachagan s., the role of lawyers and the bar council in society. [1995] 2 mlj xxix. 19 ibid note xvi, p 13. 20 a four year course (8 semesters) combining the academic and certain professional aspects of law. the ll.b degree is recognized as initial qualification for admission to the legal profession. see ahmed ibrahim, the law teacher in malaysia (1976) jmcl 252. 21 an ll.b graduate from the university of malaya will only need to go through a nine-month pupilage (reading in chambers) period with a legal firm before she/he is called to the malaysian bar as an advocate and solicitor. 22 such as contract law, tort, constitutional law criminal law, land law, equity and trust, law of association and jurisprudence. all these courses are still part of the faculty curriculum. 23 such as evidence, civil and criminal procedure. 24 malaysia was a british colony until it gained independence in 1957. 25 ibid note xvi. 26 r. segal, s.r. bhosale, legal education in india: restructuring and reshaping indian bar review 1999, 37-46. see also dyutimoy mukherjee, law schools and legal education, indlaw.com. with this in mind, in 1998, the faculty proposed to set up a legal aid clinic. the faculty realized the need of external assistance from the bar council in running the clinic. this is due to the fact that since the university of malaya is a public university, an academic staff member as a government servant is not permitted to practise law (represent clients).27 there is also need for special training for academic staff in the management of clinics, and teaching skills. due to a shortage of academic staff between 1999 and 2004,28 the introduction of the clinic was postponed. it was not until 2005 that the idea of the proposed clinic resurfaced. academics were sent to the first southeast asia clinical legal education conference at pannasastra university in cambodia in 2005, and made two trips to the university of ateneo, philippines, first to attend the first southeast asia clinical legal education training of trainers workshop and a separate, smaller malaysian clinical legal education study tour visit soon afterward in 2007. all programs aimed to familiarise participants with the innovative and interactive law teaching methodology used in clinical legal education programs, as well as street law methods.29 in 2007, with three trained academics and four students, the clinical legal education program known as the community outreach program (cop) was introduced as a faculty activity. the program is purely a community-based teaching program. a community-based program was agreed rather than a legal aid clinic for the practical reason that this program can be run solely by the faculty. about 30 students were recruited into the program when it first started in 2007. these students went through a three-day training workshop which not only trained them on the clinical legal education and street law methods but also to work as a team. setting up such programs requires great planning, dedication and team work. the faculty needs to set up partnerships with institutions for the teaching of the program, if the program is to run continuously in these institutions. issues and needs of the institutions will have to be identified and agreed upon before community teaching starts. cop started with a focus on juvenile delinquents and partnerships were set up between cop and juvenile institutions, such as the prison, approved schools30 and secondary and primary schools.31 cop students were made to research statutory provisions and the law relating to crime and child rights before they started their program with these institutions. in particular, they studied the child act 2001,32 the penal code,33 the united nation convention on the rights of the child and the prison act 1995.34 with this in mind, students were able to focus on their involvement with their clients to gain more understanding on issues involving juvenile justice and welfare. although cop’s main focus is on teaching law, this does not mean that cop only teaches juveniles in institutions their rights, 70 international journal of clinical legal education summer 2011 27 an advocate and solicitor must have a license to practice. a government servant is not permitted to be in any other employment. 28 the law faculty employs about 38 academic staff with a 100-undergraduate intake a year. this makes the faculty one of the smallest faculties in the university. between 1999 and 2004, a number of academic staff were sent for further studies. 29 r. rajeswaran legal education in asean in the 21st century, paper written for the asean general assembly workshop. 30 institutions under the social welfare department malaysia for juvenile delinquents and those identified as “in moral danger”. 31 the coordinator of cle/cop specializes in juvenile justice and welfare and criminal law. she is also a consultant with the social welfare services malaysia, and works closely with the juvenile prison. 32 act 611, the law relating to children (those under the age of 18 years). 33 act 574, the law relating to criminal offences. 34 act 537, the law relating to prison and prisoners. responsibilities and the criminal law. they also encourage their clients to continue their studies and pursue their ambitions. cop students become good role models to these juveniles.35 one achievement that cop is very proud of is its involvement in encouraging and assisting ten boys from the juvenile prison to pursue their studies in local universities. cop has been involved with juveniles in prison since 2007. students are exposed to life in prison and the kinds of offences committed by these juveniles—an experience not many law students can acquire. in consequence, many cop students were encouraged to do their project paper36 on issues involving children, crime and the prison. in the prison, cop students work closely with all types of offenders, including those found guilty of murder. juveniles found guilty of murder are imprisoned for an indefinite period until they are given clemency by the yang di pertuan agong (king).37 in the case of these juveniles, cop not only exposes them to their rights in prison, but also helps them write letters requesting clemency to the king,38 assists lawyers in their appeals and in the preparation of their mitigations. this is such a valuable experience for students, who sit with each juvenile discussing and finding out information for their mitigation, which is then submitted to the respective lawyers. one example is the assistance given to the appeal case of mohd haikal & ors v pp.39 in this case, eight juveniles were convicted by the high court of the murder of a fellow student in their school hostel in 2004. their appeal to the court of appeal was rejected in 2009, and in the appeal to the federal court, the federal court overruled the decision of the court of appeal for the conviction of murder. the juveniles have since been released from prison (29 march 2010), and cop is now involved in assisting them in their rehabilitation and their university studies. cop is also involved with schools, educating children on issues of crime, bullying and problems of children and the internet. currently, with the university’s involvement in internationalization,40 i.e. accepting exchange students from institutions with a memorandum of understanding, cop has taken part in training exchange students whether in their country, or in the university of malaya. currently, cop, with the assistance of babsea cle, is training students from the law faculty, prince of songkla university, thailand, and faculty of law, university of pancasila, indonesia. it is hoped that when students from the university of malaya start their exchange program to these two universities, their cop/cle programs will be underway, and malaya students can join them in cle activities in those countries. with the success of cop, in 2008, the faculty introduced cle as an accredited optional course for 2nd and 3rd year students. in introducing the course, a number of factors had to be taken into consideration. firstly, as part of a faculty course, cle has to be structured to comply with the ll.b program objectives. when the faculty was first introduced, it was autonomous and enjoyed the privilege of having its own law programs and curriculum, but since 2008, all programs must comply with the malaysia qualifying framework (mqf) set out by the malaysian qualifying the development and expansion of university-based community/clinical legal education programs in malaysia 71 35 in malaysia, ‘juvenile’ includes a child. child is defined as someone under the age of 18 years, and in criminal proceedings, over 10 and under 18 years old. see s.2 child act 2001 (act 611). juveniles in prison are between 14 and 22 years old. in approved schools, they are under 18. 36 a compulsory short thesis for 3rd year students. 37 section 302 penal code (act 574) provides a mandatory death penalty for the offence of murder. but section 97 child act 2001 (act 611) provides that a child cannot be sentenced to death, in lieu, they are sent to prison ‘at the pleasure of the ruler’. 38 case involving pp v kk [2007] 6 clj367. 39 see court of court of appeal decision [2009] 1 lns 292. 40 see international students, www.edu.um.my agency (mqa) which accredits university programs in malaysia. programs in universities must also comply with the ministry of higher education guidelines which underline government policies. with this in mind, cle was introduced with the main objective to develop better-trained and more socially conscious lawyers. this is in line with three of the faculty’s program objectives41 namely: (i) to demonstrate social skills and responsibility towards society and the legal program; (ii) to communicate in both local and english language as well as lead and work as a team; and (iii) to solve legal problems by applying relevant laws critically. secondly, while an optional paper is usually taught by one member of academic staff, for the cle course, at least three academic staff are needed to teach and assess students. for a faculty with limited academic staff42, a number of compromises needed to be made to convince the administration of the need for the course. academic staff taking charge of the cle course need to put in extra hours of teaching and assessment on top of their normal teaching hours. due to the shortage of academic staff, there is a need for new appointments. to be appointed as a member of academic staff of the university, a person must acquire a ph.d43 or a masters degree equivalent to a ph.d. due to the strict criteria for appointment, the faculty had to outsource and appoint part-timers and visiting academics. this is where babsea cle was able to assist by sending part-time lecturers and visiting academics. the cle is a three-credit course and is based on a continous assessment. the course is purely community based. part of the course concentrates on the development of lesson plans, knowledge and skill. students are assessed on their; (i) teaching performance, which includes teaching methodology, legal research and lesson content, lesson plan and creativity; (ii) clinical participation, which includes in-class participation, demonstration teaching and individual supervision; (iii) administration responsibility and their reflective journals. the course has a limit of 15 students the course has run for two years since it was introduced, and although appointments of new academic staff are very slow, on the positive side, graduates of the faculty have come back to assist in the program this year. the program has also welcomed juveniles who were once clients, now released from prison and members and facilitators of cop university of malaya. conclusion despite the many challenges it faces, cle continues to move forward in southeast asia and malaysia and is gaining greater acceptance.44 the current developmental approach is a slow and sustained engagement between national and regional partners to develop networks of programs that can learn from both each other’s successes and set-backs. all of the southeast asian clinical programs require further support—not simply financial, but, more significantly, technical and institutional—if they are to mature into fully accredited programs that are valued by university faculty, students, and community members alike.45 72 international journal of clinical legal education summer 2011 41 the faculty of law has 8 program objectives. see www.um.edu.my 42 the law faculty has an intake of 100 undergraduates for one academic year with about 30 active academic staff. intake for post-graduates is unlimited. 43 see recruitment, www.um.edu.my 44 bruce a. lasky and m. r. k. prasad, the clinical movement in southeast asia and india, a comparative perspective and lessons to be learned, p. 44 of the global clinical movement educating lawyers for social justice, oxford university press (2011). 45 ibid note xxxiv as clinical education progresses in southeast asia, the clinical movement will undoubtedly look to other countries’ experiences for lessons and examples. other nations, especially those from civil codes countries can all provide the southeast asian clinical movement with examples of how best to proceed with developing such an important part of formal legal education. the development and expansion of university-based community/clinical legal education programs in malaysia 73 74 international journal of clinical legal education summer 2011 reviewed article research-based clinical legal education: a contradiction in terms or a win-win? lessons from a uk pilot study.* lisa whitehouse, university of hull[footnoteref:1] [1: * thanks are due to the anonymous reviewer for their helpful comments on an earlier version of this article. dr. lisa whitehouse is a reader in law at the university of hull] introduction this article provides an account of a project (funded by the ferens education trust) which is designed to enhance clinical legal education (cle) provision within my own institution, develop networks with local stakeholders, promote civic engagement, supplement over-stretched advice provision and elicit valuable research data. the intention in providing a ‘warts and all’ account of how this project developed is to offer an insight into the trials and tribulations of setting up such a scheme, to offer comfort to those who, like me, are new to this kind of task and, to assist in efforts to avoid reinventing the wheel. perhaps more importantly, it aims also to highlight the potential for cle schemes to facilitate research. it would seem that in many uk law schools, cle is perceived as being beneficial for students, communities and stakeholders but rarely is it expected to give rise to substantive research. this has the potential to ghettoize cle, to make it the preserve of non-research active colleagues and a task separate (often physically and metaphorically) from the rest of the academic community. in an effort to broaden interest in and thereby increase the provision of cle, with all its associated benefits[footnoteref:2] this article offers a case study of how cle can derive from and give rise to research in all its forms (i.e., data, outputs and ‘impact’).[footnoteref:3] [2: for an account of the benefits of cle see, for example, marson, j., wilson, a. & van hoorebeek, m. ‘the necessity of clinical legal education in university law schools: a uk perspective’ (2005) 7 int'l j. clinical legal educ. 29 and thanaraj, a. ‘understanding how a law clinic can contribute towards students' development of professional responsibility’, (2016) 23 int'l j. clinical legal educ. 89.] [3: research impact is defined as “… an effect on, change or benefit to the economy, society, culture, public policy or services, health, the environment or quality of life, beyond academia.“ ref2021, draft guidance on submissions, ref 2018/01 (july 2018), annexe c, para. 4. ] the project in question focuses on the issue of housing possession and derives from my earlier research which suggested that a high percentage of possession cases are adjourned for reasons including unresolved housing benefit claims,[footnoteref:4] and that, due to a lack of accessible legal advice, occupiers may be missing out on measures designed to protect them against eviction.[footnoteref:5] the aim therefore was to find a way of addressing these issues by drawing on available resources, most notably, the student cohort. the initial idea was to better prepare occupiers threatened with loss of home for their court hearing through the provision of a regular ‘clinic on evictions and repossessions’ (the clear). [4: see, for example, whitehouse, l., bright, s. & dhami, m. k. ‘improving procedural fairness in housing possession cases’, (2019) 38:3 cjq 351 and whitehouse l., bright, s., dhami, m. k. & connor desai, s. judicial decision-making in housing possession cases, https://www.law.ox.ac.uk/sites/files/oxlaw/judicial_decision-making_bulletin.pdf.] [5: see, for example, bright, s. & whitehouse, l. information, advice and representation in housing possession cases, (april 2014) available at https://www.law.ox.ac.uk/sites/files/oxlaw/housing_possession_report_april2014.pdf and bright, s. & whitehouse, l. ‘does the current housing possession process provide effective access to justice?’ (2014) 164.7611 new law journal 16-17.] while cle remains an emerging feature of uk law schools,[footnoteref:6] it was possible to draw on the experience of similar projects undertaken at other institutions, including the university of sheffield (where students participate in the local court’s personal support unit)[footnoteref:7] and ucl’s integrated legal advice clinic based in stratford.[footnoteref:8] the original plan was to staff the clear with hull law school students (particularly those involved in the law school’s ‘legal advice centre’),[footnoteref:9] representatives of local advice agencies, mental health support workers and representatives of the housing possession court duty scheme (hpcds). the aim being to inform, support and advise occupiers so that they could engage fully with the legal process and, where possible, assist them in avoiding loss of home. [6: see, for example, marson, et al. (n.2), pp.29.] [7: see https://www.sheffield.ac.uk/law/about/psu.] [8: see https://www.ucl.ac.uk/access-to-justice/what-we-do/ucl-integrated-legal-advice-clinic-ucl-ilac.] [9: see https://www.hull.ac.uk/faculties/fblp/slp/more/legal-advice-centre.aspx.] in addition, the project was designed to gather quantitative data on the impact of the clear (including the number of hearings and the outcomes arising from them both before and after the introduction of the clear) and qualitative data on the experience of occupiers of the arrears and possession process (through the completion of a questionnaire and/or interviews). ultimately, the hope was that the clear would enhance access to justice for occupiers by offering them free multi-agency advice while ensuring the more effective use of judicial time by, for example, avoiding the holding of hearings that were certain to lead to an adjournment. this scheme seemed particularly timely given that moves to simplify access to the legal system through the proposed “online court” will not apply to possession hearings,[footnoteref:10] the specialist “housing court” proposed by the government is still in the embryonic stage,[footnoteref:11] and the “breathing space” initiative (designed to give individuals in debt more time to resolve their financial difficulties) will not apply to “ongoing liabilities” such as rent or mortgage payments.[footnoteref:12] also, with 21.9% of its population “struggling with debt”,[footnoteref:13] the recent and continuing closure of advice providers such as the community legal advice centre (which closed in march 2013),[footnoteref:14] and the roll out of universal credit, hull seemed a particularly apt locality for this project. [10: lord justice briggs, ‘civil courts structure review: final report’ (2016), para. 6.95., https://www.judiciary.gov.uk/wp-content/uploads/2016/07/civil-courts-structure-review-final-report-jul-16-final-1.pdf.] [11: see https://www.conservatives.com/sharethefacts/2017/10/sajid-javid-fixing-injustices-in-our-housing-market and smith, d. ‘we need a housing court’, law society gazette (26.02.2018) at https://www.lawgazette.co.uk/practice-points/we-need-a-housing-court/5064909.article.] [12: hm treasury, breathing space scheme: response to policy proposal, june 2019, para. 3.31, see https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/810058/______17june_clean_response.pdf] [13: money advice service, ‘press release: one in six adults struggling with debt worries’, (10.03.2016), https://www.moneyadviceservice.org.uk/en/corporate/one-in-six-adults-struggling-with-debt-worries.] [14: see https://www.lawgazette.co.uk/law/laa-acts-after-firms-withdrawal-leaves-legal-aid-gap-in-hull/5054621.article.] in offering evidence of the potential for cle initiatives to serve not only the interests of students and the public but also researchers, this article begins by establishing the context of the project and how my previous research identified issues within housing possession cases that could potentially be ‘solved’ through the introduction of a cle scheme. this is followed by a chronological exposition of the background, aims and methodology of the project and the progress made to date. in particular, it focuses on how the information gathered during the initial stages of the project impacted on thoughts regarding the viability and potential usefulness of the clear. the article concludes by arguing that cle should no longer be viewed as a largely non-research based activity but rather as the means by which we can generate substantial and significant research data. the ‘problem’ – information deficits in housing possession cases a summary of the legal process of housing possession in 2018 there were 19,508 claims for possession issued by mortgagees, 23,422 by private landlords and 74,980 by social landlords in england and wales.[footnoteref:15] while possession may be sought for a number of reasons, the vast majority of these cases will arise as a result of missed mortgage or rent payments.[footnoteref:16] the procedures and rules that apply to these cases vary depending on the type of claimant involved. when a mortgagee is seeking possession, which they must now do via a court order,[footnoteref:17] the court may adjourn, suspend or postpone possession if the mortgagor is likely to be able to pay any sums due under the mortgage within a reasonable period.[footnoteref:18] if not, immediate possession must be ordered, which means possession typically within 28 days. [15: ministry of justice, ‘mortgage and landlord possession statistical tables: january to march 2019’.] [16: see, for example, whitehouse, et al., (n.4), pp.353. a postal survey of social landlords in 2002/3 found that almost 98% of actions entered in court were due to rent arrears, see pawson, h., sosenko, f., cowan, d., croft, j., cole, m. & hunter, c. the use of possession actions and evictions by social landlords (london: odpm, 2005), pp.40. see also neuberger, j. house keeping: preventing homelessness through tackling rent arrears in social housing (london: shelter, 2003), pp.12.] [17: consumer credit act 1974, s 126.] [18: administration of justice act 1970, s 36.] if the claimant is a social landlord then the court has discretion to make an order for possession “if it considers it reasonable”, provided there is unpaid rent,[footnoteref:19] or (for housing associations) if “some rent lawfully due is unpaid” or “the tenant has persistently delayed paying rent”.[footnoteref:20] if the judge decides that possession may be appropriate there is also discretion as to whether to order outright possession or to postpone or suspend it, and, if so, upon what terms.[footnoteref:21] housing associations can claim possession under a mandatory ground if there are at least eight weeks rent arrears,[footnoteref:22] but the use of ground 8 is controversial and many housing associations appear not to use it.[footnoteref:23] they may also use the accelerated possession procedure under s. 21 of the housing act 1988 (ha 1988) in order to recover possession of an “assured shorthold tenancy” (provided that there was a written tenancy agreement and two months’ notice was given and has expired). however, it seems that many social landlords choose not to use this process, with shelter noting that “this procedure is almost exclusively used in the private rented sector, although a small proportion of social tenancies may also be dealt with in this way.”[footnoteref:24] [19: housing act 1985, sched 2, ground 1 (local authority) and housing act 1988 sched 2, part ii, ground 10 (housing association).] [20: housing act 1988, sched 2, part ii, grounds 10 and 11] [21: housing act 1985, s 85 (local authority) and housing act 1988, s 9 (housing associations).] [22: housing act 1988, sched 2, part ii, ground 8 – the 8 weeks applies to weekly or fortnightly tenancies. ] [23: a study in 2005 found that about one-third of housing associations, and one-half of london based housing associations, were making some use of ground 8, see pawson, et al, (n.17), pp.40, ch.5.] [24: shelter, eviction risk monitor, (december 2012), pp.5. see https://england.shelter.org.uk/professional_resources/policy_and_research/policy_library/policy_library_folder/eviction_risk_monitor_2012.] it is private landlords therefore who tend to make use of this opportunity to obtain an order for possession without the parties having to attend court and have a hearing. in effect, possession is automatic under s. 21 of the ha 1988 if it is an assured shorthold tenancy that has been in effect for at least six months, any fixed contractual term has expired, and the correct notice has been given (neither default nor rent arrears are necessary). while there are moves to reform the s. 21 procedure, it will take time for those changes to be implemented.[footnoteref:25] [25: see for example, cross, m. ‘government promises private tenancy law reform but does not say when’, law society gazette (15.04.2019) available at https://www.lawgazette.co.uk/law/government-promises-private-tenancy-law-reform-but-does-not-say-when-/5069991.article and ministry of housing, communities & local government, ‘government announces end to unfair evictions’ press release 15.04.2019, available at https://www.gov.uk/government/news/government-announces-end-to-unfair-evictions.] defences to a possession claim defences to a claim for possession are relatively rare given that they are limited to situations in which the mortgage contract can be shown to be unlawful or unenforceable, for example, where fraud or undue influence was used to secure the agreement of the mortgagor. the position is different, however, in relation to the equality act 2010 (ea 2010), european convention on human rights (echr) and the human rights act 1998 (hra 1998). claims arising under these provisions do constitute a defence to possession for the reason that, as lord bingham of cornhill explains, “parliament has enacted that discriminatory acts... are unlawful. the courts cannot be required to give legal effect to acts proscribed as unlawful. but i would not expect such a defence, in this field, to be made out very often.”[footnoteref:26] [26: lewisham lbc v malcolm [2008] ukhl 43 at 19. see also akerman-livingstone v aster communities ltd [2015] uksc 15 at 17 per lady hale.] similarly, in respect of social landlords, an article 8 defence under the hra 1998 (requiring a right to respect for the home) or a defence under the ea 2010 (e.g. a disabled person facing eviction because of something arising in consequence of his or her disability)[footnoteref:27] requires the court to consider the ‘proportionality’ of ordering possession.[footnoteref:28] according to manchester city council v pinnock & ors [2010] uksc 45, article 8 need only be considered by the court if it is raised by or on behalf of the defendant. [27: equality act 2010, ss 15 and 35. proportionality may also need to be considered if a defence under article 8 of the human rights act 1998 is raised and found to be seriously arguable: hounslow lbc v powell [2011] 2 ac 186.] [28: see, for example, aster communities ltd v akerman-livingstone [2015] 2 a.c. 1399.] the importance of information this very brief summary of the legal rules relating to possession claims highlights a particular theme within housing possession cases which is that, in many cases, judges have discretion to delay or deny possession but only where they have information sufficient to enable them to exercise that discretion. that information must be relevant to the decision which, in relation to mortgage cases, must relate to the mortgagor’s ability to repay the arrears within a reasonable period, and in relation to social landlord cases it should relate to “all relevant factors”.[footnoteref:29] in relation to the latter this might, for example, include the length of occupancy, the age of the tenant and any health difficulties.[footnoteref:30] [29: bracknell forest bc v green [2009] ewca civ 238 [22] and holt v reading bc [2013] ewca civ 641 [18].] [30: woodspring dc v taylor [1982] 4 hlr 95.] the occupier has two opportunities to supply this type of information to the court: through the completion of the defence form,[footnoteref:31] which can be submitted online,[footnoteref:32] or by attending the hearing. empirical studies into the practical operation of the housing possession process, while still relatively small in number and scale, have found evidence that gives rise to concerns regarding the extent to which occupiers take advantage of these opportunities.[footnoteref:33] as regards the submission of information via the defence form, while the ministry of justice (moj) produces statistics on the number and type of possession claims there is no published data on the number and quality of defence forms submitted. reference to the small number of empirical studies available on this issue, however, suggest that the proportion of occupiers who file defence forms is low.[footnoteref:34] nixon et al, for example, found that defence forms were completed in fewer than 25% of cases,[footnoteref:35] bright and whitehouse found that fewer than half of defendants filed a defence form,[footnoteref:36] while whitehouse et al found that forms were submitted in only 15% of the cases they studied.[footnoteref:37] [31: for social landlord cases this is n11r available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/688414/n11r-eng.pdf and for mortgage cases it is n11m available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/702924/n11m-eng.pdf.] [32: cpr, part 55 – possession claims, 55(14)(1)(b).] [33: see for example, bright and whitehouse, (n.5); burns, a. & hadfield, t. ‘a qualitative research investigation of the factors influencing the progress, timescales and outcomes of housing cases in county courts’ (london: mhclg, nov 2018); nixon, j., hunter, c., smith, y. & wishart, b. ‘housing cases in county courts’ (bristol: the policy press, 1996); blandy, s., hunter, c., lister, d., naylor, l. & nixon, j. ‘housing possession cases in the county court: perceptions and experiences of black and minority ethnic defendants’ (london: department for constitutional affairs 11/02, 2002); and hunter, c. blandy, s. cowan, d., nixon, j., hitchings, e., pantazis, c. & parr, s. ‘the exercise of judicial discretion in rent arrears cases’ (london: department for constitutional affairs, research series 6/05, october 2005).] [34: the 2018 burns and hadfield study suggests that “in most cases, the tenants do not submit a defence or attend the hearing” see burns and hadfield, (n.33), para. 3.1.2.10. similarly, the 1996 nixon study found that only 22% of defendants (borrowers and tenants in arrears cases) used the right of reply form, and a further 14% made other written submissions, see nixon, et al, (n.33), pp.20. the 2005 hunter study reports that 3% used only written submissions as their form of participation; a further 8% used a written response in addition to attending, hunter, et al, (n.33), pp.17.] [35: nixon, et al, (n.33), pp.20.] [36: bright and whitehouse, (n.5), pp.39.] [37: whitehouse, et al, (n.5).] even if the occupier does not submit a defence form in advance of the hearing, they still have the opportunity to inform the judge of their circumstances through attendance at the hearing. evidence suggests once again, however, that attendance rates are low. findings published by the moj, for example, suggest that “the defendant is often absent on the day of the hearing: evidence from recent court visits suggests that only 50% of tenants attend rent arrears hearings... consequently, the majority of cases are decided without any defence being presented.”[footnoteref:38] these findings were supported by the preliminary report for the jackson review which described the proportion of tenants attending possession hearings as “depressingly low”.[footnoteref:39] beyond this, official data regarding the number of defendants who attend and whether they are represented is not available. nixon et al, however, found that only 33% of tenants actively participated in the court proceedings they studied,[footnoteref:40] while whitehouse et al found that tenants were present in 41% of the cases they studied.[footnoteref:41] while anecdotal, an income officer from a local social landlord recently told me that there is approximately a 50% attendance rate in hull. [38: ministry of justice, solving disputes in the county courts: creating a simpler, quicker and more proportionate system, march 2011, cp6/2011, cm 8045, para 98. for other studies reporting attendance rates, see hunter, et al, (n.33), and references therein 16-17 and 24-25.] [39: ministry of justice, review of civil litigation costs, preliminary report, vol 1, (may 2009), ch.31 para 2.12.] [40: nixon, et al, (n.33), pp.18.] [41: whitehouse, et al, (n.3). ] the importance of participation the question that arises here is whether the completion of the defence form or attendance at the hearing would supply the court with information relevant to the decision. taking the defence form, for example, there is little in the way of ‘joined up thinking’[footnoteref:42] here for it fails to elicit information that might be crucial to the question of ordering possession. there is, for example, no mention of whether the defendant has a disability or other protected characteristic (which may give rise to a defence under the ea 2010).[footnoteref:43] as many occupiers will not have sought legal advice prior to the hearing,[footnoteref:44] it is highly unlikely that they will be aware of the type of information that they would need to include within the defence form in order to assist them in avoiding possession. [42: see bright and whitehouse, (n.4), pp.3.] [43: see the illuminating account of such a case in practice, albeit based on a mandatory ground for possession, by loveland, i. ‘“human rights” defences in residential possession proceedings: a cautionary tale’ (2017) 28 kings lj 130.] [44: for an account of the decline in housing work starts since the introduction of the legal aid, sentencing and punishment of offenders (laspo) act 2012 see ministry of justice and legal aid agency, legal aid statistics quarterly, england and wales, july to september 2017, 7-8 and bright and whitehouse, (n.5), ch.4 and pp.66-67.] as regards attendance, several studies suggest that it has potential to impact significantly on the outcome of the case.[footnoteref:45] the importance of attendance may derive from the ability on the part of the tenant to access free legal advice and representation at the court from the hpcds.[footnoteref:46] the changes to legal aid implemented by the legal aid, sentencing and punishment of offenders act 2012 (laspo 2012) mean that for many occupiers, attendance at the court on the day of their hearing may be their first and only encounter with a legal advice provider. described as “catastrophic”[footnoteref:47] and “a denial of justice”,[footnoteref:48] laspo 2012 removed several areas from the scope of legal aid, including welfare benefits, debt (unless it relates to housing debt and the home is at immediate risk), and housing law disrepair.[footnoteref:49] households threatened with a court order for possession remain eligible to apply for legal aid under the debt category,[footnoteref:50] but access to early advice on matters such as managing debt has been severely curtailed.[footnoteref:51] prior to april 2013, occupiers who qualified for legal aid could access civil representation from law centres,[footnoteref:52] or solicitors that held legal aid contracts. there has, however, been a downward trend in the number of these providers. evidence to the justice select committee on the impact of laspo reported that in the first year since its introduction, ten law centres closed,[footnoteref:53] and there was a downsizing of solicitor’s firms doing legal aid work[footnoteref:54] leading to a growth in “advice deserts”.[footnoteref:55] the inability of occupiers to access legally aided advice prior to their court hearing is likely to undermine their ability to identify and access defences to possession. an article 8 defence on the grounds of lack of proportionality, for example, must be pleaded and sufficiently particularised to show that it reaches the high threshold of being seriously arguably.[footnoteref:56] it is unlikely, in the few minutes that hpcds representatives have during busy possession lists[footnoteref:57] that they will be able to elicit information from the occupier sufficient to enable them to identify a potential defence. [45: see, for example, bright and whitehouse, (n.5), pp.46-48; blandy, et al, (n.33); ford, j. kempson, e. & wilson, m. ‘mortgage arrears and possessions; perspectives from borrowers, lenders and the courts’ (london: hmso, 1995); hunter, et al, (n.33); nixon, et al, (n.33) ; and whitehouse, l. ‘a longitudinal analysis of the mortgage repossession process 1995-2010: stability, regulation and reform’ in bright, s. (ed) modern studies in property law (oxford: hart publishing, 2011), pp.151-174.] [46: for an account of the hpcds see bright and whitehouse, (n.4), pp.59-68.] [47: cleghorn, m. ‘laspo 2012 and housing law’ (17 december 2012) garden court north chambers, housing law resources.] [48: civil justice council, ‘written evidence from the civil justice council las 80’ (april 2014), para 19, at http://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/inquiries/parliament-2010/laspo/?type=written#pnlpublicationfilter.] [49: laspo, sched 1, parts 1 and 2.] [50: laspo, sched 1, part 1, para 33(1).] [51: see evidence from citizens advice bureaux, civil justice council and shelter at http://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/inquiries/parliament-2010/laspo/?type=written#pnlpublicationfilte.] [52: for more information on law centres see http://www.lawcentres.org.uk/.] [53: law centres network, ‘review legal aid to ensure access to justice: our response to jsc report’, (12.03.2015), available at http://www.lawcentres.org.uk/policy/news/news/review-legal-aid-to-ensure-access-to-justice-our-response-to-jsc-report.] [54: sandbach, j. ‘justice select committee evidence on laspo impacts’ (16.05.2014) legal voice, available at http://perma.cc/v5zc-wcgu.] [55: citizens advice, ‘geography of advice: an overview of the challenges facing the community legal service’ (london: citizens advice, 2004), para. 1.6 and law society, ‘lack of housing legal aid services is leading to nationwide advice deserts’, (27.07.2016).] [56: thurrock borough council v west [2012] ewca civ 1435.] [57: for an account of the manner in which possession cases are listed see bright and whitehouse, (n.5), pp.40-45 and hunter, et al., (n.33), pp.29.] attendance is significant also for the reason that it provides an opportunity for the occupier to inform the judge about his or her personal situation. as a quote from a judge taken from bright and whitehouse’s report makes clear, the circumstances of the occupier are, ... absolutely essential... it goes to the issue of reasonableness at the end of the day, what somebody’s personal circumstances are, if they’ve had an awful situation with one of their kids being taken into care, or they’ve got problems that one of their children has mental health issues. i mean, mental health issues are a big issue because then it’s very difficult for people to manage their affairs at all. so yes, i think they are very important.[footnoteref:58] [58: bright and whitehouse, (n.5), pp.32.] the concern therefore is that the low level of participation by occupiers coupled with their inability to access legal advice prior to their hearing means that they might not be accessing the full range of protective measures available to them. in terms of trying to understand why occupiers do not engage in this process, evidence is relatively scant. for some occupiers, acknowledging the problems they are experiencing (which can include not only debt but also bereavement, unemployment, relationship breakdown, mental health issues, etc.)[footnoteref:59] can prove difficult, resulting in a failure to respond to their landlord or lender’s attempts at communication. the moj observes that “individuals in debt are a group that is difficult to access, and they behave in unpredictable ways; they rarely seek advice and information from the sources that can help” [footnoteref:60]. some describe this as the “ostrich effect” [footnoteref:61], with a shelter/yougov survey finding that 18% of those surveyed said they would not open their post in case it was a bill or a late payment reminder[footnoteref:62]. [59: paths to justice research has found that justiciable problems tend to come in clusters so that occupiers with financial problems are also likely to be experiencing relationship breakdown, consumer problems and ill health. see, for example, genn, h. paths to justice: what people do and think about going to law (oxford: hart publishing, 1999) and pleasence, p., balmer, n. j., & sandefur, r. l. ‘paths to justice: a past, present and future roadmap’ (london: ucl centre for empirical legal studies, 2013), pp.36-37.] [60: ministry of justice, ‘solving disputes in the county courts: creating a simpler, quicker and more proportionate system’, cm 8045, para 100.] [61: shelter/yougov, ‘one in 11 brits worry they can’t pay the rent or mortgage this january' (shelter/yougov survey, 6 january 2014), available at <http://perma.cc/r8r2-z6ry>.] [62: shelter/yougov, ‘1.4 million britons falling behind with the rent or mortgage’ (shelter/yougov survey, 4 january 2013) available at http://england.shelter.org.uk/news/january_2013/1.4_million_britons_falling_behind_with_the_rent_or_mortgage.] adjournments in addition to the apparent non-engagement of a large number of occupiers in housing possession cases there is also evidence to suggest that a large number of hearings are adjourned.[footnoteref:63] whitehouse et al.’s recent study, for example, found that 37% of the cases they studied resulted in an adjournment.[footnoteref:64] this suggests that a considerable amount of time and resources, for the judiciary, parties, court staff, and representatives, may be being spent on cases that are not resolved. as regards the reasons for adjournments, hunter et al found that they related to unresolved housing benefit issues;[footnoteref:65] tenant representation;[footnoteref:66] a strategy to gain more time for decision-making (in particular to obtain further evidence);[footnoteref:67] and as a ‘standard order’ in preference to a suspended possession order, perhaps to support an agreement made between the landlord and the tenant.[footnoteref:68] whitehouse et al found that the most common reason related to the issue of housing benefit.[footnoteref:69] the question arises therefore as to whether the resolution of information deficits prior to the first hearing could avoid the need for a hearing that is very likely to be adjourned. [63: see, for example, whitehouse, et al, (n.4) above; nixon, et al, (n.33), pp.52-53 and hunter, et al. (n.33), table 5, pp.18.] [64: whitehouse, et al. (n.4)] [65: hunter, et al. (n.33), pp.18.] [66: ibid, (2005).] [67: ibid, (2005), pp.106.] [68: ibid, (2005), pp.18-19.] [69: whitehouse, et al, (n.4).] the themes underlying this evidence are summarised in this quote from a housing advice representative, “some judges are… becoming frustrated by repeat adjournments, by an increase in litigants in person, and by the inability of defendants to access help before they attend court”[footnoteref:70]. it is these issues that are the driving force behind the clear project and it is these questions in particular that it seeks to answer: [70: bright and whitehouse, (n.5), pp.67.] 1. why do occupiers threatened with loss of home not engage with their lender or landlord? 2. why do occupiers threatened with loss of home not engage in the legal process? 3. what measures might encourage them to engage or to resolve information deficits? the ‘solution’? initial thoughts in order to answer the questions posed above and in particular to test whether earlier access to information and support might enhance access to justice, this project aimed initially to offer occupiers attending hull combined court a “one stop shop” of information with the opportunity to talk to law students, duty solicitors and a range of other relevant agencies, for example, the local citizens advice bureau (cab) and mental health support workers. the hope was that the clear would identify issues that could usefully be addressed or resolved prior to the hearing and allow occupiers, supported by duty solicitors, to present the judge with the information he or she needs in order to make a fully informed decision. this was intended to lead to the more effective use of judicial time and enhance access to justice for occupiers by offering them free and confidential multi-agency advice. methodology the project is being implemented in three stages. the first was the feasibility stage (september 2017-september 2018). the second involved the implementation of a pilot study designed to test the viability and effectiveness of the clear (september – october 2018). the third will involve the implementation of a full-scale version of the clear and its adoption within the curriculum during the 2020/21 academic session. this article offers an account of the first two stages. as regards the research methodology to be adopted, the intention was to gather qualitative data (in respect of why occupiers do not participate in the legal process) through the distribution of a questionnaire and/or interviews. occupiers attending the clear would be asked to complete a questionnaire (in writing or online) or to participate in an interview (e.g. immediately after their interaction with the clear or via a telephone interview at a later date). it was the intention also to gather quantitative data regarding the impact of the clear on the number and outcome of possession cases. the plan was to access data on cases heard at hull combined court prior to the introduction of the clear and those heard during and following its implementation. information received from the moj indicates that while the number and outcome of possession claims is publicly available,[footnoteref:71] other relevant data (e.g. did the occupier attend, were they represented, what was the level of arrears, what was the reason for the outcome including adjournments, etc.) is only available in the court file. it will be necessary therefore to complete a data collection and research application and submit it to the moj in order to obtain permission to access the court records. as regards the monitoring of the impact of the clear on cases during its implementation, the possibility of judges completing a very short pro-forma (in writing or possibly online) and submitting that to the research team at the end of each possession list is being explored. [71: ministry of justice, ‘mortgage and landlord possession statistics’ available at https://www.gov.uk/government/collections/mortgage-and-landlord-possession-statistics.] progressing the project the project began with the appointment of a research assistant (dr rachel dixon, her help has proved invaluable throughout).during the first six months of the project, a number of meetings and observations were conducted including meetings with representatives of the cab (who run an advice service at hull court), registered social landlords (rsls), a high court enforcement officer, a member of the residential landlords association and local judges and court employees. the research team was also able to observe a possession list at hull combined court and the cab helpdesk held at the court. i was also able to gain valuable guidance on the project as a result of a number of presentations at conferences attended by academics and legal practitioners[footnoteref:72]. the insights, information and advice offered during these events proved invaluable in highlighting and addressing the various strengths, weaknesses, opportunities and threats relating to this project. arising out of these meetings and observations were a number of recurrent themes including: engagement, timing and ‘added value’, explored in more detail below. [72: including a presentation at oxford university, see https://www.law.ox.ac.uk/events/beyond-ivory-tower-case-study-housing.] themes and challenges how do we get occupiers to engage with the project? of the various challenges posed by this project, accessing occupiers who are unable or unwilling to engage with their lender, landlord or the legal process poses perhaps one of the greatest. solutions to this might have included marketing material designed to entice occupiers to make contact with the clear. this could have been promoted in locations frequented by those in debt or with other issues that tend to be associated with debt such as mental health issues[footnoteref:73], e.g. food banks, gps surgeries (the local cab offers advice services in gp surgeries which we might have utilised for the purpose of promoting our initiative), debt advice centres, etc. alternatively, some rsls indicated a willingness to send material relating to the clear to their tenants in arrears which would have ensured a more targeted campaign that might have encouraged some tenants threatened with eviction to approach the clear. [73: see for example, libman, k., fields, d. & saegert, s. ‘housing and health: a social ecological perspective on the us foreclosure crisis’ (2012) 29.1 housing, theory and society 1; nettleton, s. and burrows, r. ‘when a capital investment becomes an emotional loss: the health consequences of the experience of mortgage possession in england’ (2000) 15:3 housing studies 463; royal college of psychiatrists, ‘debt and mental health: what do we know? what should we do?’ (2010) 3, 8; and stepchange, ‘locked out: how problem debt affects people’s housing situations’, november 2018 available at https://www.stepchange.org/policy-and-research/locked-out-debt-and-housing.aspx] ethical considerations stage 1 of the project involved general discussions with or observations of members of the “elite” (e.g. judges) and other professionals in respect of their roles and how the clear might add value to the arrears and evictions process. ethical considerations were therefore relatively minimal at this stage. stages 2 and 3 however involve students (supervised by a member of the law school in a manner similar to the legal advice centre) dealing directly with members of the local community who seek support from the clear. this gave rise to more substantial ethical considerations which were addressed as part of the university of hull’s ethics process (ethics approval was received early in the process). as part of that process, issues relating to accessing people in arrears, data protection, the role of students in the clear, ensuring confidentiality and anonymity, and whether there is the potential for ‘harm’ to students, researchers and participants were discussed. it was decided that provided measures were put in place (e.g. storing data securely, ensuring that the students receive appropriate training and are adequately supervised, etc.) no significant ethical issues were raised by this project. we were aware that students would not be able to give legal advice (neither they nor their supervisors held practice certificates or a legal aid contract). they would instead gather information from those who contacted the clear so that the clients could be directed to relevant agencies or provided with targeted information. insurance was also a further issue which was resolved by linking it to the legal advice centre policy. timing perhaps one of the most vexing issues concerned the timing of the ‘intervention’. the initial thought was that we would hold the clear in the court building on the day of possession hearings. the issue with this is that it would require the court to reschedule its lists so that they are held in the afternoon and it may not be possible to fit all the hearings into this session. second, for some occupiers this will be too late in the process (e.g. arrears may have accumulated to such an extent that possession is inevitable). third, the hearing will have already been scheduled and claimants will be entitled to say that they want their 5 minutes[footnoteref:74] in court, particularly given the fee they will have paid. one local rsl indicated that they pay £325 for every court hearing so once a hearing has been initiated, they would not want to halt the proceedings. therefore, even if the clear identified cases that were very likely to lead to an adjournment, they would still be heard in any event and even if the hearing is avoided, the occupier will still have endured the ‘threat’ of court action for several weeks prior to the hearing. [74: bright and whitehouse, (n.5), pp.40-45 and hunter, et al. (n.33), pp.29.] early intervention therefore seems to be key in preventing ‘unnecessary’ hearings but as one judge explained it is often only the threat of court action that encourages some occupiers to engage. the question therefore comes back to how do we (with the resources we have) encourage occupiers to engage with us before a possession claim is initiated in the court? one rsl did indicate a willingness to send material relating to the clear to their tenants prior to or at the time of serving a ‘notice seeking possession’[footnoteref:75] (the court date is then usually set about six to eight weeks after this). [75: for more information see citizens advice at https://www.citizensadvice.org.uk/debt-and-money/rent-arrears/you-are-taken-to-court-for-rent-arrears/#h-notice-to-leave-your-home and ministry of justice at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/806818/form_6a_interactive.pdf ] civic engagement and adding value? another key challenge of this project related to how we ‘add value’ to the provision already being made by advice services in the locality. if we are attempting to offer advice to occupiers before a claim for possession is initiated, how does that differ from what agencies such as the cab and charities are already offering? what resources can we draw on that would allow us to offer something of value to current provision? in answering these questions we kept returning to the thought that our ‘unique selling point’ derived from our students. the students’ ability to assist members of the local community by offering them free independent information and support (supervised and supported by appropriate academic colleagues) seemed to be a valuable contribution to the much under-resourced and over-stretched advice providers in hull. it might also, in particular, enable the students, given their legal knowledge, to identify evidence which would support a defence to possession. as regards the potential benefit to the students, the ability to contribute to and enhance their cle by offering them a unique opportunity to participate in real cases seemed like an opportunity not to be missed. as marson et al note, “clinical legal education… provides numerous advantages to the student cohort and establishes an opportunity for the students to gain important practical experience, whilst enabling them to offer a valuable service to the local community”[footnoteref:76]. [76: marson, et al., (n.2), pp.29.] the benefits of cle, however, are enjoyed not only by the students taking part and the clients who benefit from their support but by others as part of a symbiotic relationship in which “diverse groups are coming together where there is mutual gain”[footnoteref:77]. in respect of this study, there is the potential for under-resourced advice providers to benefit from the transference of workload away from them and towards the clear. additionally, this study has the potential to benefit researchers, a point explored in greater detail below. [77: boothby, c. ‘duty bound court possession schemes and clinical education’, 7 int'l j. clinical legal educ. 58 (2005), pp.59.] location an important issue in terms of encouraging occupiers to engage with advice providers and the legal process concerned the location of the clear. the original plan to hold it in the court building was rejected for the reason that it was likely to prove daunting for some. similarly, holding it in a location that required clients to travel might also deter those who cannot afford the time or the additional cost of transport. we could have held the clear at the university which is relatively central to some of the areas that give rise to the largest number of tenant evictions but it might still have proven too daunting for some. we could perhaps have held the clear on a peripatetic basis (e.g. a community space, a supermarket, doctors’ surgeries, etc) but this would have involved logistical issues including cost, privacy, security and so on. the pilot study following the feasibility study during which these issues were considered, a pilot version of the clear was implemented during september and october 2018. it was decided that the most effective option in terms of the locality of the clear was to offer a ‘remote’ clinic. this would give occupiers the opportunity to phone or use technology such as skype to provide information to the students staffing the clear. the students could then direct the occupiers to a relevant agency for advice or provide (under supervision) information and support directly to the occupier. this also allowed students to monitor and respond to clear correspondence remotely, a useful aspect given that the pilot ran outwith semester time. in order to run the clear on a remote basis it was necessary to obtain two mobile phones, one for the students to use in order to access and respond to answer phone messages and texts left by clients. the other was for the ‘supervisor’ so that they could be contacted by the students during office hours. it was also necessary to set up a secure storage facility for documents, both physically and online. this was achieved using lockable filing drawers in the clear office and through filestream, a password protected online storage facility accessible only by using a university of hull imaged computer or laptop. we were fortunate enough to secure the participation of two of the largest providers of social housing in the region. they distributed a leaflet advertising the clear to their tenants who were in receipt of a notice seeking possession (up to a maximum of 100 tenants). this ensured that only those tenants in arrears were made aware of the clear. we deliberately kept the numbers small as we wanted to ensure that we had the resources necessary to meet demand. the social landlords also referred clients to the clear using a ‘letter of authorisation’ which we drew up stating that: “i authorise the clinic on evictions and repossession (the clear), university of hull, to make enquiries and correspond on my behalf. the clear can receive information relating to my circumstances including computer generated information which may be disclosed to third parties. i request that a copy of all correspondence in connection with my case, be forwarded to them also. i agree to my case file being used for the purpose of audit checks with [social landlord].” my research assistant, one of our cab trained students and myself monitored the clear email, landline and mobile phones on a rota basis for 8 weeks. following contact by a client, we phoned them back within three working days and asked them a set list of questions including, “what are the reasons for the arrears?”, “are you in receipt of benefits?”. we then met as a team to discuss the information and support we could provide and sent this in writing to the client (using a template letter) within 3 working days. we then contacted the client again two weeks later to follow up on any outstanding issues (e.g. “have your universal credit payments started?”) and to offer additional support where appropriate. having taken some time to analyse the development and progress of the pilot study, it seems that the process arrived at offers a workable means of offering support to the local community and has the potential to be extended to all occupants in hull and the east riding (e.g. advertised generally rather than limited to some social tenants). the plan is to initiate stage 3 of the project by integrating the clear into the curriculum as a credit bearing module for the 2020/21 academic session. this is to be combined with a family mediation pathway and a legal advice centre pathway so that the students can, in essence, experience working in general legal practice. assessment will include a mix of self-reflection and observation of their cle skills, e.g. talking to clients on the phone, researching information and support, letter writing, etc.[footnoteref:78] [78: for an insight into how we might assess cle see anon, j. g. ‘how do we assess in clinical legal education: a reflection about reflective learning’, 23 int'l j. clinical legal educ. 48 (2016).] to this extent, i would argue that this scheme does qualify as cle. taking boone et al’s definition, it is “a curriculum-based learning experience, requiring students in role, interacting with others in role, to take responsibility for the resolution of a potentially dynamic problem”[footnoteref:79]. in particular, it involves (i) active participation on the part of students (they are not passive observers); (ii) interaction in role (as a support worker); (iii) dynamic nature of the problem (the clients’ circumstances are not known in advance nor can they be predicted); (iv) student responsibility for outcome (the students take responsibility for researching the information needed to support their client); and (v) relation to the curriculum (the assessment process offers a formal opportunity for reflection and analysis).[footnoteref:80] in addition to qualifying as cle, however, the scheme is designed also to serve research aims. [79: boone, a., jeeves m. & macfarlane, j. ‘clinical anatomy: towards a working definition of clinical legal education’, 21 law tchr. 61 (1987), pp.68] [80: ibid, (n.79), pp.65-68.] gathering research data cle has given rise to substantial research for many years.[footnoteref:81] that research, however, has tended to focus on cle as the subject of analysis, questioning, for example, the methods used and their usefulness.[footnoteref:82] unusually, this scheme was not intended to be the subject of research but rather to facilitate the collection of substantive research data as the basis for research outputs. the hypothesis underlying the research aspect of this project is that meaningful communication between households and housing providers early in the arrears process reduces the likelihood of court proceedings and eviction. this hypothesis will be tested through the implementation of three broad approaches: exploratory, descriptive and causal. given that little is known about the experience of occupiers of the arrears process, the work will, by its very nature, be exploratory. the gathering of data on this issue is intended to offer a robust description of the causes of housing debt, how occupiers experience arrears and the threat of eviction and whether there is a causal relationship between early engagement and the avoidance of court action and eviction. [81: see, for example, binder, d. a. & bergman, p. b. (2003) ‘taking lawyering skills training seriously’ clinical law review vol. 10, fall 301; & maccrate, r. (2004) ‘yesterday, today and tomorrow: building the continuum of legal education and professional development’ clinical law review. vol. 10, spring.] [82: see for example, blandy, s. ‘enhancing employability through student engagement in pro bono projects’, 26 int'l j. clinical legal educ. 7 (2019), and yackee, j. w. ‘does experiential learning improve jd employment outcomes?’ (2015) wis. l. rev. 601.] the research project, while employing a mixed-methods[footnoteref:83] research approach (with the secondary analysis of social science material and available data being supplemented by the collection of unique primary data, both quantitative and qualitative) focuses mainly on the collection of qualitative data from occupiers. in order to elicit both quantitative (e.g. age, socio-economic status, ethnicity, etc.) and qualitative (e.g. the impact of universal credit) data via random voluntary sampling,[footnoteref:84] a regional online survey will be distributed. this brings to the fore the difficulties associated with obtaining a sufficient sample size. no incentives or benefits will be offered but efforts will be made to encourage potential respondents to complete the survey through general marketing activities (e.g. posters in food banks, gp’s surgeries, etc.) as well as targeted campaigns with relevant agencies (e.g. debt advice agencies, charities, legal practitioners, etc.). the intention is to obtain a minimum of 50 responses. concerns regarding this form of data collection (e.g. item non-response and measurement error) have been addressed through the careful design of the online questionnaire.[footnoteref:85] [83: see, for example, leavy, p. (ed), the oxford handbook of qualitative research (oxford: oup, 2014) and nielsen, l.b. ‘the need for multi-method approaches in empirical legal research’ in cane, p. & kritzer, h. m. (eds), the oxford handbook of empirical legal research (oxford university press, oxford, 2010), pp.951-975.] [84: see, for example, murairwa, s. ‘voluntary sampling design’ (2015) 4:2 international journal of advanced research in management and social sciences 185-200.] [85: see, for example, kuha, j. et al, ‘latent variable modelling with non‐ignorable item non‐response: multigroup response propensity models for cross‐national analysis’, (2018) 181:4 journal of the royal statistical society: statistics in society, series a, 1169.] in addition to the regional online survey, the aim is to conduct a degree of “purposeful sampling”[footnoteref:86] by requesting data from occupiers who approach the clear. this generates specific ethical considerations including ensuring that potential participants are aware of the research element of the project, are able to offer fully informed consent before taking part and do not feel compelled or obliged to participate. in particular it is necessary to ensure that the support offered by the clear is not perceived as being dependent upon the clients’ participation in the research. the clear is in essence simply a means of making contact with a hard to reach demographic. in order to make potential clients aware of the research element of the project, a participant information sheet and consent form have been designed in such a way as to ensure that consent is freely given and fully informed. in addition, the clear leaflet includes the following statement: [86: see, for example, emmel, n. sampling and choosing cases in qualitative research: a realist approach (london: sage, 2013), chapter 2.] “the clear is a new service run by students and staff at the university of hull. we are not able to provide legal or debt advice but we can provide other means of support such as helping you to fill in forms. in order to help us understand more about the experience of tenants in arrears, we will ask you to answer a few questions as part of a research project. this is entirely voluntary and refusal to take part in it or to withdraw from it at a later date will involve no penalty or loss. any information you provide will be kept entirely confidential.” in deciding how best to gather the research data from clear clients, the original plan, to hold interviews immediately after a client visited the clear, became untenable following the decision to hold a remote clear. it was decided instead to request a telephone interview at a time to suit the client or to request that they complete an online survey, with the link to be sent to clients after the follow up correspondence checking on the progress of their case. the questions posed during the interview and in the questionnaire relate to the occupier’s circumstances (e.g. age, ethnicity, income, etc.), their housing (e.g. private landlord, public landlord or mortgagor) and their experience of the arrears process (e.g. level of arrears, did they engage with their lender or landlord and if so at what point and by what means, if not, why not and so on). the hope is that in combination, the regional and clear online surveys will generate responses sufficient to give rise to credible data on the experience of occupiers in arrears. conclusions this paper has detailed the background to and progress of a pilot study designed to enhance access to justice for occupiers threatened with loss of home. i hope you will forgive the ‘thinking aloud’ and chronological nature of the commentary but i think it useful to offer an insight into how projects of this kind develop. the funding kindly provided by the ferens education trust allowed us precious time to investigate how best to achieve the aims of this project. the hope is that this article serves as evidence of the potential for schemes designed to enhance the cle of students to also give rise to benefits in terms of both civic engagement and research. given the current push towards ‘research impact’, such schemes must surely be a win-win for all concerned. 137 practice report 62 clinical legal education: a virtual mode of access to justice dr. gigimon v.s. & ms. shruti nandwana1 abstract legal education, all over the world uses a mix of practical and theoretical means to train students. for purposes of practical training, specialized legal clinics are established by legal education institutions to train the students to apply the classroom learnt law in live cases. these legal clinics serve dual purposes, first, of training students in the practical aspects of the law and second, providing access to justice to people in areas where it is difficult to get legal help and where reaching institutions of justice delivery is difficult. the pandemic situation prevailing world over now has had deep impacts in imparting legal education. the physical classrooms have turned into virtual classrooms, delivering only theoretical education and leaving doubts in the mind of students due to lack of practical training resulting from non-functioning of legal aid clinics in this situation. in order to ensure access to justice in india during the time of pandemic, the judiciary has taken recourse of virtual courts, whereby the 1 dr. gigimon v.s. is associate professor of law, dharmashastra national law university, jabalpur. their contact details are contact number +918123011980, email id profggvs@gmail.com. ms. shruti nandwana, assistant professor of law, dharmashastra national law university, jabalpur. their contact details are contact number +91–7987179434, email idshruti@mpdnlu.ac.in mailto:profggvs@gmail.com mailto:shruti@mpdnlu.ac.in practice report 63 listing and hearing of cases which require urgent hearing are done online. the same methodology has also been adopted by the national legal aid service authority by conducting virtual lok adalats where cases are entrusted to them2. by studying the same mode of virtual courts and virtual lok adalats, the present paper aims to devise a working model to ensure that clinical legal education is continued in india during these times of pandemic, and that legal aid clinics work efficiently to ensure that people are not deprived of their right to legal assistance. the working model proposes a collaboration between the legal aid clinics of the universities and colleges and the justice delivery institutions to ensure dual purpose of legal aid clinics is met. the model will also be tested in the institution, and a pan india plan of action for implementing this model would be devised. introduction legal education is incomplete without practical training. clinical legal education is a method of ‘learning by doing’ where students are trained in the practical skills of how the law works in action. in the words of prof. n.r. madhava menon, the pioneer of legal education in india, clinical legal education is “a learning environment where students identify, research and apply knowledge in a setting which replicates, at least in part, the world where it is practiced. it almost 2 lok adalats are a form of alternative dispute resolution see https://nalsa.gov.in/lok-adalat practice report 64 inevitably means that the student takes on some aspect of a case and conducts this as it would be conducted in the real world.”3 this clinical legal education serves the dual purpose of imparting practical skills to students and ensures access to justice to the deprived and distressed sections of society. clinical legal education in india has been made a mandatory part of law course curriculum and most law schools take it up in the form of legal aid clinics/cells which function in their universities/ law colleges. they aim to provide a public service and access to justice to those who are unable to approach the justice delivery institutions in the country. however, the covid-19 pandemic has created unique challenges to legal education and to access to justice. with universities and colleges being shut down due to the pandemic, teaching has shifted online through virtual means. this has ensured that imparting theoretical knowledge is not hampered, however, it has posed serious obstacles in imparting practical training with most legal aid clinics/cells in universities/colleges being shut down. similarly, courts of law in response to the pandemic suspended their physical functioning and hence this has caused a hurdle in access to justice to public at large. the indian judiciary responded quickly and embraced technology by adopting virtual means to hear cases to ensure that the functioning of the courts is not impeded. the lok adalats in india which are intended to ensure legal aid to large numbers of people has also adopted virtual means to settle disputes. hence, there becomes a pressing need that the legal aid clinics/cells 3 n.r. madhava menon, clinical legal education, eastern book company, 1998 https://lawbookshop.net/eastern-book-company.html practice report 65 in india adopt virtual modes of functioning to ensure that the pandemic does not obstruct their functioning the issue of practical training which is curtailed during this period can be resolved if we try to use technology, that had aided the government and judiciary, to continue to reach the needy. the present paper is looking to propose a working model for ensuring that these legal aid clinics/cells use technology platforms to function during the pandemic and continue even after the situation is overcome. the first part of the paper briefly discusses clinical legal education in india. it then moves on to discuss lok adalats and the e-lok adalats which were conducted in india during the pandemic and their success. the next part of the paper discusses various successful legal aid initiatives undertaken by students from various law schools prior to and during the pandemic times. finally we move on to discuss the working model for functioning of legal aid clinics virtually. clinical legal education in india the indian constitution, provides that the citizens should be provided social, economic and political justice.4 the indian constitution also guarantees legal aid to citizens in case of violation of their rights.5 despite strong basis for legal aid in the 4 preamble to the constitution of india 5 article 39a, constitution of india practice report 66 constitution, the concept of legal aid and clinical legal education emerged relatively late in india. in 1949, the bombay legal education committee for the first time recommended that practical courses should be made compulsory for those students who wish to enter the legal profession.6 this was the starting of cle in india. various committees and commissions have been set up in india to ensure that legal aid reached the needy and deprived section of the society. the government of india legislated the legal service authority act ,1987 in order to ensure free legal aid to citizens who cannot afford it. the act has established legal service authorities at three levels – national, state and district level which are responsible for providing free legal aid and ensuring that the needy sections of the society get legal representation. however, it was understood that given the large population of india, the number of people who are eligible for free legal aid is huge and the instrumentalities of the state are not enough to support free legal aid programs for all. hence, various committees were set up which suggested that including law schools in legal aid programs would serve dual purposes, first to train students and develop their skills, which are necessary for practically implementing what they have learnt in theory in law schools, and second to ensure that access to justice is ensured for all.7 the committees also identified seven components of legal aid which include 6 frank s. bloch & iqbal s. ishar, legal aid, public service and clinical legal education: future directions from india and the united states, 12 mich. j. int'l l. 92 (1990). 7 government of india, ministry of law, justice and company affairs, department of legal affairs, report of expert committee on legal aid : processual justice to the people (1973). government of india, ministry f law, justice and company affairs, department of legal affairs, report on national practice report 67 legal representation, advice, awareness, paralegal services, public interest litigation, promotion of alternative dispute resolution and legal reforms. all the aforesaid components of legal aid can be achieved by means of legal clinics in law schools except for the first one.8 on the basis of reports of various committees, bar council of india, which regulates legal education in india, used its authority given to it under the advocates act 1961 and issued an order making it compulsory for all law universities and colleges to include four practical papers in their course curriculum. the first practical paper includes moot courts, second relates to drafting, pleading and convincing, third deals with professional ethics and the fourth paper is concerned with training students in legal aid. this resulted in cle becoming an integral part of law school training where it became mandatory for the final year students to undertake legal aid programs and services in order to get practical training and develop lawyering skills. universities and colleges across india have adopted diverse means to implement the practical paper on legal aid in their institutes. some have joined up with non-governmental organisations in order to assist them in legal aid and advising them, some of them adopted certain local areas in order to provide legal aid to the residents of those areas, the most common method adopted by the universities and colleges was to set up legal aid cells in order to meet the object of practical training. these legal aid cells serve juridicare: equal justice – social justice (1977). report of committee for implementing legal aid schemes (cilas) 1981 8 since law students in india are not allowed to practice before the completion of their degree. practice report 68 diverse needs of ensuring spreading awareness, imparting legal advice, and ensuring the underserved section of the society is given legal representation. these legal aid cells also establish legal clinics to carry on their activities and tie up with lawyers to act on pro bono basis in order to represent the weaker section of the society. lok adalats and the functioning and success of e-lok adalat the lok adalats are set up under the legal service authorities act, 1987. the act aims to constitute legal service authorities in order to provide competent and free legal services to the economically deprived and distressed sections of the society and to organise lok adalats to ensure that access to justice on equal basis is ensured to all. lok adalat is a forum where cases which are pending in the court of law or are at a pre-litigation stage are compromised/settled amicably. lok adalats were established in order to ensure speedy disposal of cases where settlement is possible. cases which are referred to the lok adalat are of civil nature, matrimonial cases, motor accidents claims and petty offences. the essence of lok adalat proceedings is that the parties should be willing to amicably settle the disputes between them. the covid-19 pandemic had resulted in suspension of regular functioning of lok adalats in various states. this resulted in serious hardships to persons whose cases were referred to the lok adalats. in order to cope up with the pandemic the legal service authorities of various states adopted virtual means to conduct lok adalats. hon’ble justice n.v. ramana, judge, supreme court of india and executive practice report 69 chairperson of the national legal services authority, while talking about e-lok adalats said “we [the judiciary] always thought of making use of technological services like video conferences, e-courts, etc. to enable marginalised people to access justice. now, finally it has been put into action.”9 in order to conduct e-lok adalat, states adopted different platforms such as videoconferencing, website or mobile applications developed specifically to conduct e-lok adalats to connect the judges, lawyers, authorities and litigants. the first step in each case involved identification of cases which can be settled or decided in lok adalats. post identification, the parties involved were contacted and asked whether they wanted their case to be decided in lok adalat. on the basis of this, the number of cases is identified, and necessary benches are constituted to deal with the cases by means of videoconferencing or other digital platforms. the secretary of district legal service authority has to ensure that the litigants who consent to their matters being taken up for virtual lok adalats, fill in a form for referring the dispute to lok adalats. once the benches are constituted, links are created for each case and the information is uploaded on the websites of district court. whatsapp groups are created by the district courts for the parties and advocates to give them information and communicate smoothly regarding the cases. on the date and time designated for the case to be heard, the parties and judge joins the link. the parties are heard, and the 9 concept of e-lok adalat has potential to transform legal landscape: sc judge, september 19, 2020 https://www.thehindu.com/news/national/karnataka/concept-of-e-lok-adalat-has-potential-totransform-legal-landscape-sc-judge/article32650701.ece practice report 70 matter is decided. the award of the lok adalat is uploaded on the district court website which can be accesses by the litigants and lawyers.10 e-lok adalats have been a huge success in various states and states have settled thousands of cases on a single day in e-lok adalats. the following is the data on cases settled in one day in various states by means of e-lok adalat:11 serial no. state e-lok adalat was held number of cases settled 1. delhi 5838 2. jharkhand 3,308 3. karnataka 1,50,000 4. chhattisgarh 2270 5. tamil nadu 70,000 6. andhra pradesh 1,222 7. haryana 104 8. uttarakhand 1,787 9. gujarat 10,954 10. punjab 19,432 11. rajasthan 33476 12. jammu and kashmir 4237 total 202629 student initiative legal aid programs – covid -19 10 sop for conducting india’s first state level e-lok adalat or vc lok adalat in chhattisgarh 11 the data has been taken from the website of district legal service authorities of the respective states. practice report 71 university and college students across india have taken initiatives to assist the needy and deprived sections of the society to make them aware of their rights and to ensure that justice is done. in a few such cases, students from various national law universities from different parts of india have come together to assist people to get their rights enforced. a few of such initiatives for legal aid by students at a pan india level are: • mazdoor mitra: covid – 19 forced nations to call for a nation-wide lockdown in the initial stages as a measure to control the virus from spreading. during these difficult times of lockdown, the most severely hit were the daily wage earners and migrant labourers who left their homes and travelled kilometres to find employment. they were left stranded and were unable to contact their state governments to transport them back to their respective states. the students from national law institute university, bhopal joined hands to assist the migrant labours to procure food, arrange night shelters and provided them with e-passes and means of transport to return home. it is an entirely studentled program. since all educational institutes were also closed during the lockdown period, the students communicated with each other and kept in constant touch through videoconferencing and whatsapp. they coordinated with various state authorities and ngos to provide assistance to migrant labourers. the mazdoormitra website was set up within 24 hours which had contact details of various covid-19 helpline numbers for states as well as practice report 72 labour welfare agencies. the students were available 24/7 through their website and through the contact details furnished on the mazdoormitra website. within a month they had solved more than 200 inquiries from migrant labourers from across india, and, were able to connect people during this emergency situation.12 • initiative by students from gandhinagar national law university, gandhinagar: students and alumni of gandhinagar national law university, gandhinagar (gnlu) came together during the nation-wide lockdown enforced due to covid -19 to assist the migrant workers to return home. they worked with zenith legal aid clinic in madhya pradesh in order to provide aid to migrant workers with respect to food, shelter and conveyance in order to travel back to their hometown. the team also worked in collaboration with governmental and non-governmental agencies to assist the migrant workers. they provided information to migrant workers regarding trains scheduled for them to travel back home, assisted the labourers to register themselves for trains scheduled for them, assisted the labourer to reach home from the railway station, and tracked the location of migrant labourers on their way back to their homes. they also assisted the governmental authorities and ngos to connect to labours to provide them with food and shelter facilities. in their first phase 12 student-led nliu project assist over 200 migrant labourers with practical advice, help on dealing with lockdown, wednesday, 20 may 2020 https://www.legallyindia.com/lawschools/student-led-nliuproject-assist-over-200-migrant-labourers-with-practical-advice-help-on-dealing-with-lockdown20200520-11429 practice report 73 i.e. from may 14, 2020 to may 21, 2020 they assisted a total of 6000 workers from madhya pradesh who were stranded in maharashtra. the team has also assisted workers who were being abused by their employers and being forced to work extra hours when they wanted to leave for their hometowns. the team contacted the officials and administration in the area and the workers were given police protection and sent back home. 13 technology assisted legal aid programme the initiative by the students of dharmashastra national law university, jabalpur, (dnlu, jabalpur) the instances stated above in the form of mazdoormitra, initiative by students from gujarat national law university, gandhinagar as well as the huge success of the e-lok adalats in various states forms the basis of our current model for setting up online legal aid clinics connecting law schools pan india. the present paper proposes a model for setting up collaborative legal aid clinic among law schools pan india which would help to ensure dual purpose of legal aid clinics. the project would be implemented in phases where at the first phase it would be initiated in our university, i.e. dnlu, jabalpur and would then be based on collaboration of 22 national law universities (nlus) established in different parts of 13 success stories of assisting migrant labour, gnlu centre for law and society, 2020 http://www.documentcloud.org/documents/6922849-gnlu-centre-for-law-and-society-gclssuccess.html practice report 74 the country. post this phase, such nlus would then collaborate with the law schools in their region to connect the legal aid clinics pan india. figure 1 – parties involved in the functioning of online legal aid clinic parties involved: • legal aid cell of the university: the legal aid cell of the university would act as a nodal centre through which all the legal aid activities would be carried out. • legal service authority: the legal service authority would be contacted to provide requisite support for providing assistance in connecting people virtually. practice report 75 • student volunteers : student volunteers would be responsible for running the legal aid clinic for purposes of providing advice; assisting pro bono lawyers to draft the petitions; maintaining the website and web portal for receiving complaints and requests for legal advice; and undertaking all activities at the university level to run the legal clinics. • trained paralegals – they would undertake advisory work, running of kiosks and assist the students where they need additional support. • local area governance institutions: such as gram panchayats and gram nayalaya to help people in distress connect with the legal clinics virtually • schools: legal awareness camps would be set up in schools so as to make students aware of their rights and duties figure 2: stages of implementation of the model practice report 76 stage i dnlu, has an active legal aid cell which provides legal aid and advice to citizens in need. the students have been visiting villages to understand the legal issues which people face and to provide advice. hence, this legal aid cell would act as the nodal centre for implementing the project and establishing legal clinics in their university. as per the legal education regulations of bar council of india (bci) rules, there should be a faculty member who would head the legal aid program in the university, and hence an experienced professor would be designated as the head of the cell who would be responsible for ensuring that the legal clinic functions in a proper manner. bci mandates training students in legal aid as a compulsory subject for law students, and hence, each year there would be about 100 final year students who would have to take clinical legal education as a mandatory subject and they would be the volunteers in the legal clinics. apart from the student volunteers, alumni of the university, on a pro bono basis, will be the advisors and lawyers for representing the clients based on advice given to them in the clinics. the volunteers can assist the lawyers in preparing case briefs and representations in cases assigned to them. the legal aid clinic would also recruit certain paralegals to assist them in the activities of the clinic. stage ii the legal aid clinic would adopt a village nearby to start implementing the project. a website would be created which would give details of the clinics. helpline numbers practice report 77 would be circulated by way of information pamphlets in areas where the legal aid clinic aims are to start implementing the project so as to make the people aware of the existence of centres where people can access legal help. apart from the website and helpline numbers, the clinic would have a kiosk which will function once a week in each area where legal aid is to be provided. the kiosk would be managed by trained paralegals and student volunteers working with the clinic so as to ensure that those who are unaware of technology and cannot access websites or helpline numbers are helped at regular intervals. the helpline numbers would also increase take up of those in emergency situations such as domestic abuse where the complainant seeks urgent help. the national legal service authority is entrusted with the task of promotion of clinical legal education and the provision of guidance and supervision for the establishment and working of legal aid clinics in universities and law colleges. hence, the legal aid clinic at dnlu, jabalpur can connect with the state legal service authority in order to make the legal aid clinics function virtually. the virtual facilities available with the state legal service authority can be used to provide legal aid to those in distress. to provide legal aid, the cell at dnlu would establish a portal on its website where the people who require assistance call fill in the requisite details with respect to their case and such details necessary for the students to assist and provide counselling to these persons. the student volunteers would be divided into groups which would specialise in one particular law. the matters as received on the portal would then be practice report 78 segregated and assigned to the respective groups. these groups would understand the matter, take assistance from the panel of pro-bono lawyers and ensure that they are well versed with the case at hand. they would then contact their client either through telephonic calls or through videoconferencing in cases where it is necessary. to this end the legal service authorities at the state, district and village level can provide support by creating a setup where such persons who do not have means to connect through video conferencing can come and use the facility to have meetings with the volunteers at the legal aid clinics. these volunteers after meeting with the clients with respect to their cases, will be assigned lawyers who agree to work on probono basis and represent these cases in the court of law. here the task of the volunteer would be to assist the lawyer in drafting the case and act as an intermediary between the lawyer and the person represented to ensure that there is complete exchange of information. whatsapp groups can also be created by students so that they connect large number of people together and it is easier to communicate. stage iii after the initial stage of implementation and working, these legal aid clinics would then contact the district or taluka legal service authorities in their states to refer cases which are fit for settlement through lok adalats and ensure that the decisions of the lok adalats are implemented. coordination and collaboration with the legal service authorities would also help these clinics to refer cases which include more complex practice report 79 issues to be dealt by panel of lawyers and mediators, empanelled with the legal service authorities and they can help people who require legal aid by representing them. stage iv at the next stage, the legal aid clinic would contact the gram panchayats (village council) and gram nayalays (village courts) in each village where the legal aid clinic aims to provide legal aid. gram panchayats and gram nayalays can through their administration provide ways to connect the people to the legal aid clinics via online modes and hence ensure that the people in need are connected to the legal aid clinics in their respective areas. further, collaborating with gram panchayats can help in spreading awareness among the villagers regarding legal rights and duties, and various welfare schemes which are available and implemented by the government for them. a major challenge in the rural areas in india is that the rural population is unaware of their legal rights and welfare schemes conducted for their benefit. hence more than providing legal aid, legal awareness among rural people is an important aspect which needs to be taken care of. the student volunteers and the paralegals can take up these activities by contacting the gram panchayats and organising screening of documentaries on legal rights or organising videoconferencing of the legal aid clinic with the villagers to solve their queries and to give them information about laws. similarly, the legal aid clinics can also organise online legal awareness camps in practice report 80 schools by means of videoconferencing to spread awareness among students about their legal rights. stage v once the project is successful at dnlu, jabalpur it can then be adopted by the 22 national law universities (nlu) established in each state in india. the nlus are connected with each other through a consortium which is called common law admission test (clat) consortium and is responsible for admissions into the nlus. the clat consortium can act as the central body to regulate the collaborated legal aid activities in the nlus. most of these nlus have active legal aid cells which can act as nodal centres for the implementation of the project in each university. a common portal for all the nlus can be created where aggrieved persons can submit their legal disputes. the nlus can within themselves specialise in certain subjects and the cases received on the portal can then be divided among the clinics based on the specialisation. the student volunteers in these clinics can take up the matters at a pan india level using virtual means to connect. this method can also be used to spread awareness among people of their rights and the laws in general. each legal aid clinic can take up certain areas of laws and impart awareness through videos and online means. the legal aid clinics in each state would be entrusted with the task to ensure that such videos reach the local level and persons are made aware of the same. the practice report 81 legal aid clinics can also take up online sessions for students in collaboration with schools to spread awareness among the children of their legal rights and duties. conclusion practical learning adds more skills of advocacy for the young, budding lawyers, and will also help them to understand the needs of society at large. acquiring such knowledge and understating of the socio-economic needs of disadvantaged people, will help the students to learn the implementation process of a legislation and lacunas in it. this will also help the students to be active in public policy formation and implementation. this experiment will be a functional experience for not only the students but for the teachers too. the use of technology in the justice delivery system has already proved successful in the court system in india and is functioning effectively. this led to the idea of the use of technology in legal aid model. the huge success of e-lok adalats and that of the student initiatives during times of covid-19 pandemic in providing legal aid has proved that providing legal aid through online means is possible and very well received by people who do not have much knowledge about it as well. by providing mechanisms for legal aid clinics to function online, the dual purpose of legal aid clinics i.e. to impart practical training and to ensure access to justice can be achieved. once this model starts functioning, it will ensure that legal aid is always made available to the needy persons and that the collaboration between various nlus ensures that legal aid achieves its real purpose of providing social practice report 82 justice. this will allow us to reach the length and breadth of this vast country where access is difficult, but justice needs to be provided. it is the mandate of the state to provide justice, to all and it’s a basic human right. references concept of e-lok adalat has potential to transform legal landscape: sc judge, september 19, 2020 https://www.thehindu.com/news/national/karnataka/concept-ofe-lok-adalat-has-potential-to-transform-legal-landscape-sc-judge/article32650701.ece frank s. bloch & iqbal s. ishar, legal aid, public service and clinical legal education: future directions from india and the united states, 12 mich. j. int'l l. 92 (1990). government of india, ministry of law, justice and company affairs, department of legal affairs, report of expert committee on legal aid : processual justice to the people (1973). government of india, ministry f law, justice and company affairs, department of legal affairs, report on national juridicare: equal justice – social justice (1977). report of committee for implementing legal aid schemes (cilas) (1981) n.r. madhava menon, clinical legal education, eastern book company, (1998) student-led nliu project assist over 200 migrant labourers with practical advice, help on dealing with lockdown, wednesday, 20 may 2020 https://www.legallyindia.com/lawschools/student-led-nliu-project-assist-over-200migrant-labourers-with-practical-advice-help-on-dealing-with-lockdown-2020052011429 success stories of assisting migrant labour, gnlu centre for law and society, 2020 http://www.documentcloud.org/documents/6922849-gnlu-centre-for-law-andsociety-gcls-success.html https://lawbookshop.net/eastern-book-company.html reviewed article 5 innovation and disruption: exploring the potential of clinical legal education mary anne noone* introduction1 it’s a great privilege to deliver this year’s susan campbell oration. i, like many others, had the pleasure of working with sue on a range of activities. in 2007, sue conducted a review of the la trobe law school clinical program which was instrumental in helping ensure the program remained an integral aspect of the la trobe university law course. i hope what i have to say honours sue’s memory and her contributions to legal education and clinical legal education in particular2. my focus in this presentation is on how australian clinical legal education responds to the various innovations and disruptions occurring in the legal arena. the scope and breadth of innovations is mindboggling. there are many predictions about what the future holds for the legal profession, from gloom and doom to utopia, and there * mary anne noone is an emerita professor in the school of law, la trobe university, australia. 1 this paper was delivered in september 2019 for the monash law school, susan campbell oration, https://www.monash.edu/law/monash-law-alumni/donations-and-bequests/the-susan-campbellmemorial-fund 2 for example: susan campbell ‘blueprint for a clinical program’ (1991) 9(2)the journal of professional legal education 121 ; susan campbell and alan ray, specialist clinical legal education: an australian model’’ (2003) 3 international journal of clinical legal education 67; judith dickson and susan campbell, professional responsibility in practice: advocacy in the law school curriculum (2004) 14(2) legal education review, 5; ross hyams, susan campbell, adrian evans practical legal skills (4th edition 2014) oxford uni press; susan campbell, review of legal education report : pre-admission and continuing legal education 2006 victoria. dept. of justice. https://www.monash.edu/law/monash-law-alumni/donations-and-bequests/the-susan-campbell-memorial-fund https://www.monash.edu/law/monash-law-alumni/donations-and-bequests/the-susan-campbell-memorial-fund reviewed article 6 is a growing body of literature discussing the implications for the legal profession and legal education. in reality, it is impossible to envisage what the legal world will look like in ten years let alone thirty and that poses a real challenge for those involved in legal education, including clinical legal education. how best to prepare today’s students for the unknown future? given that i have no expertise in digital technology and am certainly not a futurologist my comments relate to those areas about which i have some background: access to justice, social security and clinical legal education. i briefly outline the variety and scope of innovations occurring in the legal world, discuss two related aspects namely access to justice and government decision making, using the example of robodebt, and then examine the potential for clinical legal education in these disruptive times. i argue that clinical legal education is well placed to take a more central role in australian law schools and the training of 21st century legal workers. context clearly the theme of innovation and disruption extends beyond the legal sector – the current era is sometimes referred to as the fourth industrial revolution3, or the digital revolution. innovation and disruption are the buzz words of the decade if not the first part of the 21st century. 3 klaus schwab the fourth industrial revolution 2017 penguin books ltd reviewed article 7 if i ask you to think about what disruption means in our times, many would talk about climate change and global warming4, others might refer to the threats to our democratic traditions including attacks on the media and journalists, or the erosion of rights under various forms of legislation and shifts in global power. however, that is not the form of disruption i am talking about. my focus is specifically on disruption and innovations in the legal arena.5 in preparing this talk, i was conscious that in the audience there would a diverse range of awareness of these developments. accordingly, i have provided a general outline of the scope of changes. i then identify two specific areas of concerns that warrant caution. to begin, it is relevant to clarify the terms i am using. disruptors are innovators, but not all innovators are disruptors. innovation refers to when a new idea is translated into a new device or way of doing something: new products, processes, services, technologies, or business models.6 there is an assumption that innovation is good and represents progress. most would understand to disrupt is to throw into turmoil or disorder; to interrupt the progress of an event.7 however in contemporary usage, disruption most often is about displacing an existing market, industry, or technology which supposedly produces something new and more efficient and worthwhile. disruption can result from the adoption of innovations but not necessarily – to 4 i will not directly address this but encourage you to have a look at professor adrian evan’s recent work in this area: adrian evans, ‘the climate for whistle-blowing: climate deterioration will challenge the courage of corporate lawyers’ (2017) 27(2) the australian corporate lawyer 34-37; https://www.envirojustice.org.au/projects/growing-the-next-wave-of-climate-justice-lawyers/ 5 i am aware of the irony in giving an oration on innovation – an oration is a formal old fashioned concept – should really be something like a ‘ted talk’: www.ted.com 6 https://dictionary.cambridge.org/dictionary/english/innovation 7 https://dictionary.cambridge.org/dictionary/english/disruption https://www.envirojustice.org.au/projects/growing-the-next-wave-of-climate-justice-lawyers/ http://www.ted.com/ https://dictionary.cambridge.org/dictionary/english/innovation https://dictionary.cambridge.org/dictionary/english/disruption reviewed article 8 disrupt is to prevent something, especially a system, process, or event, from continuing as usual or as expected. disruption is at once destructive and creative. the concept of disruptive innovation came from an article in the harvard business review in 1995 relating to markets.8 once upon a time to be called a disrupter was an insult but now for some people and businesses it is a compliment. in relation to the legal arena, commentators suggest that we are in the throes of seismic change that will disrupt the legal marketplace; both legal practice and legal institutions as we know them.9 in an oft quoted prediction, susskind in 2013, forecast that legal institutions and lawyers “are poised to change more radically over the next two decades than they have over the last two centuries”10. in the second edition of his book, in 2017, he documents pages of evidence to support his prediction.11 to set the scene for the scope of change occurring, i want to take you back in time ask you to imagine working in a clinical legal education program or some other form of legal practice in the early 1980s. students are writing letters in long hand to be typed by the secretary; if they need to do legal research they read a limited number of hardcopy reports/book that might be on hand otherwise they have to travel to the university library, every day a full mail bag of letters and documents is delivered, 8 clayton m. christensen, michael e. raynor and rory mcdonald, what is disruptive innovation? (2015) harvard business review https://hbr.org/2015/12/what-is-disruptive-innovation : christensen, c.m. disruptive technologies: catching the wave. harvard business review 1995, 73 9 richard susskind, the end of lawyers? rethinking the nature of legal services (oxford university press 2010); julian webb, ‘legal technology: the great disruption?’ in richard l. abel et al (eds), lawyers in 21st century societies, vol ii, (2020) oxford: hart publishing, 10 richard susskind; tomorrow’s lawyers (2013) oxford university press, p xiii 11 richard susskind; tomorrow’s lawyers 2nd ed (2017) oxford university press p vii-vii https://hbr.org/2015/12/what-is-disruptive-innovation reviewed article 9 sorted and another bag collected to be posted, getting a response to a letter of demand could take weeks. the only technology available is a landline telephone, an ibm electric typewriter and a photocopier. there was no internet, no computers, no fax machine, no mobile phones. for some in the room, imagining this scene might be easier than others – that was what springvale community legal centre (site of the monash university clinical legal education program) was like when i began working there in the early 1980s.12 12 kerry greenwood, it seemed like a good idea at the time : a history of springvale legal service 1973-1993 1994 springvale legal service reviewed article 10 it is trite to say that in the intervening three decades, the development of the internet and technology has dramatically changed the way lawyers perform their work, has improved efficiency and speeded up processes. nevertheless, during that time, the nature of the lawyer/client relationship has essentially not changed and our legal institutions have remained largely unaltered. this is despite, the application of competition policy and the shift to independent regulation of the legal profession, growth in large corporate law firms and the globalisation of legal services.13 lawyers maintain their monopoly on the provision of legal services and the nature of the lawyer client relationship remains intact. lawyers continue to have the same duties to the court, administration of justice and clients as they always have.14 but as i have already indicated, change is happening and gathering apace if the number of recent keynote addresses by senior members of the legal profession, the conferences, articles in legal profession journals, professional and academic endeavours are anything to go by.15 all seem to concede that the legal world is in a process of transformation. 13 paula baron and lillian corbin, ethics and legal professionalism in australia (2017) oxford university press pp 18 26; vicki waye, martie-louise verreynne & jane knowler (2018) innovation in the australian legal profession, international journal of the legal profession, 25:2, 213-242. 14 christine parker and adrian evans, inside lawyers’ ethics 3rd ed (2018) cambridge university press; paula baron and lillian corbin, ethics and legal professionalism in australia 2nd ed (2017) oxford university press. 15 thornton, m. (2019) “towards the uberisation of legal practice”, law, technology and humans, 1, pp. 46-63; morry bailes ‘an end to lawyers? implications of ai for the legal profession’, speech delivered by, president of the law council of australia at the australian defence seminar, australian defence college, canberra, 24 october 2018; morry bailes ‘the law and legal technology – our changing work practices’, speech delivered by, president-elect of the law council of australia at the 2017 australian young lawyers’ conference, sydney; australian legal technology association https://alta.law/ ; centre for legal innovation https://www.cli.collaw.com/ ; australian centre for https://alta.law/ https://www.cli.collaw.com/ reviewed article 11 innovation and disruption in legal arena a measure of the extent of changes used by some commentators is the number of legal tech start-up companies developing. it is suggested there are currently between 93 and 111 legal technology firms in australia alone and more than 1000 worldwide.16 i am sure many in the room have read about or attended presentations on one or more aspects of these technological innovations in the legal world. developments relate both to how legal work is done, the location and form of legal practices and how individuals can access legal information and advice. some examples include: technology which automates what’s called ‘back of house’ work practices; for instance the production of legal documents; assistance in discovery and legal research, workflow management systems; and document analysis; 17 front of house examples include legal expert systems and artificial intelligence that provides online targeted and relevant legal information to individuals as an alternative to seeking advice from a lawyer; these may or may not be justice innovation (acji) faculty of law https://www.monash.edu/law/research/excellence/acji ; zach warren, ‘the rising tech tide: australia's legal tech scene is making waves’ https://www.law.com/legaltechnews/2019/04/01/the-rising-tech-tide-australias-legal-tech-scene-ismaking-waves/?slreturn=20200628005219; 16 jodie baker ‘australia is leading the legal tech revolution, but what does this mean for lawyers, firms and clients?’ january 17, 2019 https://www.smartcompany.com.au/technology/australialegaltech-revolution/ ; susskind above n 11 17 julian webb, ‘legal technology: the great disruption?’ in richard l. abel et al (eds), lawyers in 21st century societies, vol ii, (2020) oxford: hart publishing; r size, ‘taking advantage of advances in technology to enhance the rule of law’ (2017) 91(7) australian law journal 575 https://www.monash.edu/law/research/excellence/acji https://www.law.com/legaltechnews/2019/04/01/the-rising-tech-tide-australias-legal-tech-scene-is-making-waves/?slreturn=20200628005219 https://www.law.com/legaltechnews/2019/04/01/the-rising-tech-tide-australias-legal-tech-scene-is-making-waves/?slreturn=20200628005219 https://www.smartcompany.com.au/technology/australia-legaltech-revolution/ https://www.smartcompany.com.au/technology/australia-legaltech-revolution/ reviewed article 12 subscription based. this might also involve data analysis (using big data) that can predict litigation outcomes as well as be used in risk assessment; 18 and processes like e-conveyancing minimise the manual processes and paperwork associated with property settlements by enabling the lodgement of documents and completion of financial settlements electronically.19 a related form of innovation, often enabled by technology, is the rise of new forms of legal practice. this phenomenon called newlaw covers aspects of how legal practices are structured, how and where legal services are delivered, how clients are charged and how lawyers are employed.20 these changes manifest in virtual and online legal practices where all services are provided over the internet; outsourcing or contracting of aspects of legal processes to individuals often in a different country21; there is also the application of ‘gig economy’ principles to legal work where an individual lawyer is contracted to do work for a discreet transaction or section of the work; single principals with panels of freelance lawyers ; “alternative 18 lyria bennett moses, 'artificial intelligence in the courts, legal academia and legal practice', (2017) australian law journal, vol. 97, pp. 561 574, http://sites.thomsonreuters.com.au/journals/2017/08/02/australian-law-journal-update-vol-91-pt-7/ ; r size, ‘taking advantage of advances in technology to enhance the rule of law’ (2017) 91(7) australian law journal 575 19 rod thomas, rouhshi low and lynden griggs “electronic conveyancing in australia – is anyone concerned about security?” [2014] australian property law journal 1 20 thornton, m. (2019) “towards the uberisation of legal practice”, law, technology and humans, 1, pp. 46-63.; rebecca lim ‘ what is a true newlaw firm?;’2016 https://insight.thomsonreuters.com.au/legal/posts/true-newlaw-firm 21 for example https://www.strategiclposolutions.com.au/ ; stacey leeke, ‘legal process outsourcing: what you need to know’ thomsonreuters – legal insight 2015 https://insight.thomsonreuters.com.au/legal/posts/legal-process-outsourcing-need-know http://sites.thomsonreuters.com.au/journals/2017/08/02/australian-law-journal-update-vol-91-pt-7/ https://insight.thomsonreuters.com.au/legal/posts/true-newlaw-firm https://www.strategiclposolutions.com.au/ https://insight.thomsonreuters.com.au/legal/posts/legal-process-outsourcing-need-know reviewed article 13 fee arrangement”/time-based billers fixed fee services; and also multidisciplinary practices.22 in addition to changes in legal practice and legal work, there are also changes occurring in relation to our legal institutions.23 courts are becoming paperless – for example the australian federal court now has an e court where all documentation is lodged and accessed electronically. as courts gain momentum in their use of technology, there will be a continued expansion of ‘e-procedures’ such as ediscovery and e-trials in a wider variety of matters24. a related aspect is the development of virtual courtrooms where parties do not need to be all physically present in the court room. 25 there is also the development of online dispute resolution which exists in australia now outside the court system but developments in canada and united kingdom are adopting it as part of formal court systems. 26 22 thornton, above n 15 23 james allsop (cj) , ‘technology and the future of the courts’ tc beirne school of law, uni of qld, special lecture series, march 2019 https://www.fedcourt.gov.au/digital-law-library/judgesspeeches/chief-justice-allsop/allsop-cj-20190326 24 bennett moses, above n 18; size above n 18, p4-6 25 virtual courtrooms have become more common place in the current covid 19 pandemic. see https://www.supremecourt.vic.gov.au/law-and-practice/virtual-hearings; anne wallace and sharyn roach anleu and kathy mack, ‘judicial engagement and av links: judicial perceptions from australian courts’2018 international journal of legal profession 26 allsop above n. 23, 7; british columbia civil resolution tribunal https://civilresolutionbc.ca ; courts and tribunal judiciary, odr review 2015 https://www.judiciary.uk/reviews/online-disputeresolution/ ; carneiro, davide ; novais, paulo ; andrade, francisco ; zeleznikow, john ; josé neves, online dispute resolution: an artificial intelligence perspective’’ 2014, vol.41(2), artificial intelligence review, pp.211-240; tania sourdin and bin li and tony burke, ‘just, quick and cheap? civil dispute resolution and technology’2019 19 macquarie law journal 17 ; roger smith. the digital delivery of legal services to people on low incomes. london: the legal education foundation, annual report https://www.fedcourt.gov.au/digital-law-library/judges-speeches/chief-justice-allsop/allsop-cj-20190326 https://www.fedcourt.gov.au/digital-law-library/judges-speeches/chief-justice-allsop/allsop-cj-20190326 https://www.supremecourt.vic.gov.au/law-and-practice/virtual-hearings https://civilresolutionbc.ca/ https://www.judiciary.uk/reviews/online-dispute-resolution/ https://www.judiciary.uk/reviews/online-dispute-resolution/ reviewed article 14 perhaps one of the most challenging innovations is the use of artificial intelligence (ai)27. as an example in us, ai is used in risk assessment and making predictive decisions in relation to bail, parole and some sentencing decisions28. it is worth noting that at the end of 2018, the european commission for the efficiency of justice published a charter into the use of ai in judicial systems. the charter calls for the adoption of core principles of non-discrimination, transparency, and respect for fundamental rights when ai is used in judicial systems. this charter was formulated in recognition of the changes already occurring. 29 although many sections of the legal profession and legal educators are embracing the technological innovations not all are so convinced that the resultant disruption will bring benefits.30 any one of the innovations i have listed gives rise to critique, challenges and concerns. in particular much discussion is generated about what is the future of the legal profession, will these technologies lead to a decline in legal work, will there still be a need for lawyers if more non-lawyers are doing legal work and if so, what will be the role of a lawyer.31 summer 2019. https://www.thelegaleducationfoundation.org/wp-content/uploads/2019/09/digitaltechnology-summer-2019-v2.pdf 27 brian simpson algorithms or advocacy: does the legal profession have a future in a digital world?, (2016) 25 (1) information & communications technology law, 50-61, 28 bennett moses above n. 18; allsop above n 23, 8-9; 29 european commission for the efficiency of justice (cepej)european ethical charter on the use of artificial intelligence in judicial systems and their environment 2013 https://rm.coe.int/ethical-charter-enfor-publication-4-december-2018/16808f699c 30 thornton above n. 15; morry bailes an end to lawyers? implications of ai for the legal profession, speech delivered by, president of the law council of australia at the australian defence seminar, australian defence college, canberra, 24 october 2018. 31 susskind above n. 11. https://www.coe.int/en/web/cepej/cepej-european-ethical-charter-on-the-use-of-artificial-intelligence-ai-in-judicial-systems-and-their-environment https://www.thelegaleducationfoundation.org/wp-content/uploads/2019/09/digital-technology-summer-2019-v2.pdf https://www.thelegaleducationfoundation.org/wp-content/uploads/2019/09/digital-technology-summer-2019-v2.pdf https://rm.coe.int/ethical-charter-en-for-publication-4-december-2018/16808f699c https://rm.coe.int/ethical-charter-en-for-publication-4-december-2018/16808f699c reviewed article 15 the changes bring with them a range of new ethical and regulatory issues32. i focus on two aspects that warrant vigilance and are not receiving as much critical attention the impact of innovations on access to justice and the use by government of automated tools to make decisions. access to justice and technology when i refer to access to justice, i am not just meaning access to courts and tribunals. i take access to justice to encompass how people navigate and are treated in the many transactions (with legal consequences) that comprise everyday life particularly those that are administered or involve government agencies. it is in these encounters that ‘equality and inequality before the law’ is experienced by most people.33 certainly, in australia we know that access to justice remains problematic for most in the community. numerous government reports have documented the extent of unmet legal need and most recently the law councils justice project highlighted significant areas of injustice and limited access to justice. discrimination is endemic in parts of our justice system: those who are indigenous, poor, disabled, live in rural and regional areas fare worse in accessing justice than others. 34 32 paresh kathrani (2017) an ‘existential’ shift? technology and some questions for the legal profession, 20 (1) legal ethics, 144, ; catherine nunez (2017) artificial intelligence and legal ethics: whether ai lawyers can make ethical decisions 20 tulane. j. tech. & intell. prop 189 33 mary anne noone & lola akin ojelabi, l. (2020). alternative dispute resolution and access to justice in australia 16(2) international journal of law in context, 108-127 ; federal attorney general's department a strategic framework for access to justice in the federal civil justice system; report by the access to justice taskforce 2009 p 4 34 law council of australia, (2018) the justice project final report https://www.lawcouncil.asn.au/justice-project/final-report; national press club address ‘justice state https://www.lawcouncil.asn.au/justice-project/final-report reviewed article 16 it is relevant to note just over 3 million (13.2%) australians are living below the poverty line; that’s one in eight adults living in poverty. unsurprisingly, the group of people experiencing poverty the most are those relying on government allowance payments such as youth allowance and newstart which are notoriously low.35 innovations in technology, changes to the way legal services are delivered, the growth of virtual legal practice and a wide range of internet-based information and services present many exciting opportunities to enhance access to justice for those currently denied it.36 australian legal aid commissions and community legal centres are eager to explore these options and have been doing so since 1990s37. some recent examples include justice connect’s commitment to employing digital technology to increase the reach and scale of their legal services (including to regional areas); in a front of house example, they are exploring the role that online self-help resources can play in complementing and enhancing the value of direct legal advice; and back of house, the role that technology can play in reducing the of the nation’ speech delivered by fiona mcleod sc,14 march 2018 https://www.lawcouncil.asn.au/media/speeches/national-press-club-address-justice-state-of-thenation . 35 australian council of social service and university of new south wales poverty in australia 2018 https://www.acoss.org.au/wp-content/uploads/2018/10/acoss_poverty-in-australia-report_webfinal.pdf; please note this research is prior to current global pandemic – recent research suggests the gap between rich and poor is worsening see australian council of social service and university of new south wales, inequality in australia 2020 http://povertyandinequality.acoss.org.au/inequality/inequality-in-australia-2020-part-1-overview/ 36 roger smith. the digital delivery of legal services to people on low incomes. london: the legal education foundation, annual report summer 2019. https://www.thelegaleducationfoundation.org/wp-content/uploads/2019/09/digital-technologysummer-2019-v2.pdf 37 mary anne noone (2001), `state of legal aid’ 29 federal law review 37 https://www.lawcouncil.asn.au/media/speeches/national-press-club-address-justice-state-of-the-nation https://www.lawcouncil.asn.au/media/speeches/national-press-club-address-justice-state-of-the-nation https://www.acoss.org.au/wp-content/uploads/2018/10/acoss_poverty-in-australia-report_web-final.pdf https://www.acoss.org.au/wp-content/uploads/2018/10/acoss_poverty-in-australia-report_web-final.pdf http://povertyandinequality.acoss.org.au/inequality/inequality-in-australia-2020-part-1-overview/ https://www.thelegaleducationfoundation.org/wp-content/uploads/2019/09/digital-technology-summer-2019-v2.pdf https://www.thelegaleducationfoundation.org/wp-content/uploads/2019/09/digital-technology-summer-2019-v2.pdf reviewed article 17 burden of repetitive administrative tasks for staff so that they can more efficiently focus their time on the highest impact work.38 national legal aid and the legal services commission of south australia has launched a new online service called 'amica' to help separating couples reach agreements about dividing their property and arrangements for their children. the secure digital service guides couples through a step-by-step process and offers information and support along the way. the technology provides users with templates highlighting parenting agreements that have worked for other couples and artificial intelligence software can also assess previous family law court decisions to show couples how judges generally treat disputes that are similar to theirs.39 another example is the development of an online legal health check devised by qpilch but now readily available on national association of clcs website. the aim of this innovation is to assist legal and non-legal workers assess the extent of an individual’s legal problems. 40 there is no end of potential for improving access to justice through digital technology and this is exciting however it is important to remember that those most in need of legal assistance are often also the most disadvantaged. one of the most 38 https://justiceconnect.org.au/about/digital-innovation/ 39 https://www.amica.gov.au/ 40 http://legalhealthcheck.org.au/ https://justiceconnect.org.au/about/digital-innovation/ https://www.amica.gov.au/ http://legalhealthcheck.org.au/ reviewed article 18 significant challenges is how to ensure that the most disadvantaged continue to receive appropriate and targeted legal services. research has shown that people with a disability and single parents are twice as likely to experience legal problems; unemployed and people living in disadvantaged housing also vulnerable; and indigenous people are most likely to experience multiple legal problems.41 and if we are to rely on the internet for improving access to justice, worth noting uk research that shows those at the younger and older ends of the age spectrum, as well as those with lower education attainment are less likely to use the internet in relation to resolving a legal problem. surprisingly young people, who we general assume to be the most digitally engaged struggle to interact with the internet as a legal information resource and use the internet without regard to the reliability or quality of the source material or the relevance of jurisdiction.42 according to abs figures almost 2.6 million australians 10%, do not use the internet. nearly 1.3 million households are not connected.43 age is a critical factor but factors 41 christine coumarelos, deborah macourt, julie people, hugh m. mcdonald, zhigang wei, reiny iriana and stephanie ramsey, legal australia-wide survey (law survey) legal need in australia 2012 law and justice foundation of nsw 42 catrina denvir, (2016). online and in the know? public legal education, young people and the internet. computers and education, 92-93, 204-220; catrina denvir, nigel j balmer, and pascoe pleasence, ‘portal or pot hole? exploring how older people use the 'information superhighway' for advice relating to problems with a legal dimension (2014) 34(4) ageing and society 670-699. 43 australian bureau of statistics, 8146.0 – household use of information technology, australia 201617; allsop above n 23, 17 reviewed article 19 like where you live, whether you have a permanent home and whether you are literate are all relevant.44 in a further note of caution about the impact of innovation on access to justice, australian research looking at legal assistance innovations in 1990’s, which included provision of information and advice on internet and advice by video links, revealed that many innovations had failed because they were designed more to satisfy the needs of the legal aid service providers than those of their consumers. that research recommended that new services should be designed in consultation with prospective users in order to ensure that their legal needs are most appropriately addressed. 45 more recently denvir now at monash university and former director of the legal innovation centre at ulster university, argued that in relation to technological innovations – often the developers are more focussed on the solution rather than clarifying the problem being addressed she argues “there’s plenty of “bandwagonjumping” going on when it comes to lawtech; “all too often, technology is seen as the answer when we don’t know what the question is”46. 44 around 3.7% (620,000) of australians aged 15 to 74 years had literacy skills at below level 1, a further 10% (1.7 million) at level 1, 30% (5.0 million) at level 2 (there are five levels). australian bureau of statistics, programme for the international assessment of adult competencies, australia, 2011-12 (2013) https://www.abs.gov.au/ausstats/abs@.nsf/lookup/4228.0main+features202011-12 45 rosemary hunter, cate banks, c. & jeffrey giddings, ‘ technology is the answer...but what was the question? experiments in the delivery of legal services to regional, rural and remote clients’., in pleasence, p., buck, a. & balmer, n. j. (eds.). (2007) transforming lives: law and social process: the stationary office, uk p. 133-160 46 quoted in ‘more universities are teaching lawtech – but is it just a gimmick?’ the guardian 12 apr 2019 https://www.theguardian.com/law/2019/apr/12/more-universities-are-teaching-lawtech-but-is-itjust-a-gimmick https://www.abs.gov.au/ausstats/abs@.nsf/lookup/4228.0main+features202011-12 https://www.theguardian.com/law/2019/apr/12/more-universities-are-teaching-lawtech-but-is-it-just-a-gimmick https://www.theguardian.com/law/2019/apr/12/more-universities-are-teaching-lawtech-but-is-it-just-a-gimmick reviewed article 20 given that we know that certain groups in our community suffer more from lack of access to justice than others, it is also critical to ensure that the digital revolution does not impact them more than others. for example, where they rely for income and services on government departments and agencies like centrelink47. that brings me to robodebt . automated decision making – robodebt 48 automated tools are now used to make or facilitate decisions in a range of government agencies, including decisions about welfare, tax, health, visas and veterans’ affairs. bennett moses notes there are at least 29 commonwealth acts and instruments that specifically authorise automated decision-making49 however it is not always appropriate for decisions to be made by a computer.50 centrelink’s 47 https://www.servicesaustralia.gov.au/individuals/centrelink 48 since i gave this oration, there have been a number of successful legal appeals against robodebt decisions https://www.legalaid.vic.gov.au/about-us/news/i-hope-everyone-gets-opportunity-forjustice-win-for-deanna-amato-in-her-robo-debt-test-case . the federal government has apologised to those affected for the ‘harm or hurt’ caused by the scheme and promised to pay back those who paid unlawful debts: katherine murphy ‘scott morrison apologises for 'hurt or harm' caused by robodebt rollout’ the guardian https://www.theguardian.com/australia-news/2020/jun/11/scott-morrisonapologises-for-hurt-or-harm-caused-by-robodebt-rollout june 2020. additionally a class action has been filed against the government https://gordonlegal.com.au/robodebt-class-action/ . 49 lyria bennett moses (2018), 'the need for lawyers', in lindgren k; kunc f; coper m (ed.), the future of australian legal education, lawbook company, pp. 355 at358 50 commonwealth ombudsman, lessons learnt about digital transformation and public administration: centrelink’s online compliance intervention 2017 https://www.ombudsman.gov.au/__data/assets/pdf_file/0024/48813/aial-oci-speech-andpaper.pdf; nicholas diakopoulos"we need to know the algorithms the government uses to make important decisions about us" — https://theconversation.com/we-need-to-know-the-algorithms-thegovernment-uses-to-make-important-decisions-about-us-57869 https://www.servicesaustralia.gov.au/individuals/centrelink https://www.legalaid.vic.gov.au/about-us/news/i-hope-everyone-gets-opportunity-for-justice-win-for-deanna-amato-in-her-robo-debt-test-case https://www.legalaid.vic.gov.au/about-us/news/i-hope-everyone-gets-opportunity-for-justice-win-for-deanna-amato-in-her-robo-debt-test-case https://www.theguardian.com/australia-news/2020/jun/11/scott-morrison-apologises-for-hurt-or-harm-caused-by-robodebt-rollout%20june%202020 https://www.theguardian.com/australia-news/2020/jun/11/scott-morrison-apologises-for-hurt-or-harm-caused-by-robodebt-rollout%20june%202020 https://gordonlegal.com.au/robodebt-class-action/ https://www.ombudsman.gov.au/__data/assets/pdf_file/0024/48813/aial-oci-speech-and-paper.pdf https://www.ombudsman.gov.au/__data/assets/pdf_file/0024/48813/aial-oci-speech-and-paper.pdf https://theconversation.com/we-need-to-know-the-algorithms-the-government-uses-to-make-important-decisions-about-us-57869 https://theconversation.com/we-need-to-know-the-algorithms-the-government-uses-to-make-important-decisions-about-us-57869 reviewed article 21 “robo-debt” system is a high profile example of what can go wrong with automated decision making. 51 the official name for this system is the online compliance intervention. a computer program at the department of human services, which oversees centrelink52, gathers data from other government agencies like the australian tax office and then compares it with data that people have reported to centrelink. the system is designed to quickly check whether the income that is reported to centrelink — used to calculate what benefits an individual is entitled to — is the same as that reported by their employer has to the tax office. this process is not new and data matching has been in use for some time but what is different now is that after the computer detects a discrepancy, without any human intervention – a letter is sent to the centrelink recipient asking for an explanation. if the individual does not respond – an automated decision is made to raise a debt. there is no human intervention in this process. i am sure you will be aware, through media coverage of the consequences of this scheme.53 51 http://www.legalaid.vic.gov.au/find-legal-answers/centrelink/robo-debts; https://www.abc.net.au/news/2019-06-27/centrelink-robo-debt-system-extortion-former-tribunalmember/11252306; https://www.notmydebt.com.au/; https://gordonlegal.com.au/robodebt-classaction/robodebt-faqs/ 52 centrelink is the government agency that delivers social security payments and services to australians https://www.servicesaustralia.gov.au/individuals/centrelink 53 for example: luke henriques-gomes, ‘robodebt official challenged by mothers of two young men who took their own lives’ the guardian 17 august 2020 https://www.theguardian.com/australianews/2020/aug/17/robodebt-official-challenged-by-mothers-of-two-young-men-who-took-their-ownlives ; https://www.abc.net.au/triplej/programs/hack/2030-people-have-died-after-receivingcentrelink-robodebt-notice/10821272 . http://www.legalaid.vic.gov.au/find-legal-answers/centrelink/robo-debts https://www.abc.net.au/news/2019-06-27/centrelink-robo-debt-system-extortion-former-tribunal-member/11252306 https://www.abc.net.au/news/2019-06-27/centrelink-robo-debt-system-extortion-former-tribunal-member/11252306 https://www.notmydebt.com.au/ https://gordonlegal.com.au/robodebt-class-action/robodebt-faqs/ https://gordonlegal.com.au/robodebt-class-action/robodebt-faqs/ https://www.servicesaustralia.gov.au/individuals/centrelink https://www.theguardian.com/australia-news/2020/aug/17/robodebt-official-challenged-by-mothers-of-two-young-men-who-took-their-own-lives https://www.theguardian.com/australia-news/2020/aug/17/robodebt-official-challenged-by-mothers-of-two-young-men-who-took-their-own-lives https://www.theguardian.com/australia-news/2020/aug/17/robodebt-official-challenged-by-mothers-of-two-young-men-who-took-their-own-lives https://www.abc.net.au/triplej/programs/hack/2030-people-have-died-after-receiving-centrelink-robodebt-notice/10821272 https://www.abc.net.au/triplej/programs/hack/2030-people-have-died-after-receiving-centrelink-robodebt-notice/10821272 reviewed article 22 before the system was automated, only 20,000 interventions were made a year but with automation, the system was running at 20,000 a week.54 the government said it was wrong to characterise these as "debt letters" — centrelink is just trying to get more information about what's behind the discrepancy. however the new system effectively shifted the onus onto the centrelink recipient to prove they owed no debt to the government. there are a range of concerns with the scheme. o’donovan argued that the robodebt system does not comply with administrative law principles such as reasonableness and procedural fairness.55 and carney, in a scathing assessment, argued that centrelink’s “robo-debt” system is a form of illegal extortion allowed by failings across a “plethora” of democratic and legal institutions. he states that our rule of law institutions have failed to address the illegality of centrelink's robo-debt programme and its unethical character. he identifies serious structural deficiencies in the design of accountability and remedial avenues. it is clear the ‘robo-debt innovation’, which likely impacted more on poor and disadvantaged individuals, caused significant disruption, not only to the individuals 54 luke henriques-gomes, robodebt: total value of unlawful debts issued under centrelink scheme to exceed $1bn the guardian wed 10 jun 2020 https://www.theguardian.com/australianews/2020/jun/10/robodebt-total-value-of-debts-issued-under-unlawful-centrelink-scheme-to-exceed1bn-refund 55 darren o’donovan, ‘lawfulness of debts raised through data matching alone’ submission to the senate inquiry into the department of human services’ online compliance initiative april 2017 file:///c:/users/manoo/appdata/local/temp/sub121_o'donovan.pdf https://www.theguardian.com/australia-news/2017/jun/21/senate-inquiry-calls-for-centrelink-robo-debt-system-to-be-suspended-until-fixed https://www.theguardian.com/australia-news/2020/jun/10/robodebt-total-value-of-debts-issued-under-unlawful-centrelink-scheme-to-exceed-1bn-refund https://www.theguardian.com/australia-news/2020/jun/10/robodebt-total-value-of-debts-issued-under-unlawful-centrelink-scheme-to-exceed-1bn-refund https://www.theguardian.com/australia-news/2020/jun/10/robodebt-total-value-of-debts-issued-under-unlawful-centrelink-scheme-to-exceed-1bn-refund reviewed article 23 receiving the letters but also to the broader administrative law system and rule of law principles.56 given that around 50% of australian households receive some type of a government payment then automated decisions will likely affect many people.57 government views systems like robo-debt through a budgetary and efficiency lens, however given the significant consequences for individuals and our administrative justice system, a more pertinent perspective should be whether such an innovation enhances or diminishes principles of equality before the law and access to justice. technological innovations like robo-debt need to be rigorously scrutinised to ensure that all people but particularly, the disadvantaged and marginalised are not further prejudiced.58 clinical legal education and innovation and disruption i have given a brief overview of innovations occurring within the legal sector and have identified two aspects that indicate the need to critical analyse these innovations. i now turn to examine what this means for clinical legal education and 56 o'donovan, darren. social security appeals and access to justice: learning from the robodebt controversy [online]. precedent (sydney, n.s.w.), no. 158, jun 2020: 34-39. 57 peter whiteford ‘factcheck: is half to two-thirds of the australian population receiving a government benefit?’ the conversation may 11, 2015 https://theconversation.com/factcheck-is-half-totwo-thirds-of-the-australian-population-receiving-a-government-benefit-41027 ; note this figure has likely increased in 2020. 58 monika zalnieriute, lyria bennett moses & george williams, 'the rule of law and automation of government decision-making', (2019) 82 modern law review, pp. 425 455, http://dx.doi.org/10.1111/1468-2230.12412; monika sarder ‘from robodebt to racism: what can go wrong when governments let algorithms make the decisions’ june 2020 https://theconversation.com/from-robodebt-to-racism-what-can-go-wrong-when-governments-letalgorithms-make-the-decisions-132594 https://theconversation.com/factcheck-is-half-to-two-thirds-of-the-australian-population-receiving-a-government-benefit-41027 https://theconversation.com/factcheck-is-half-to-two-thirds-of-the-australian-population-receiving-a-government-benefit-41027 http://dx.doi.org/10.1111/1468-2230.12412 https://theconversation.com/from-robodebt-to-racism-what-can-go-wrong-when-governments-let-algorithms-make-the-decisions-132594 https://theconversation.com/from-robodebt-to-racism-what-can-go-wrong-when-governments-let-algorithms-make-the-decisions-132594 reviewed article 24 legal education more generally. what should be the form and content of legal education to adequately equip students to take on legal roles in this 21st century? australian legal education has altered little for decades: to be admitted to legal practice an individual needs to complete a law qualification, a period of practical legal training and be a ‘fit and proper’ person59. the period of practical legal training was an area where sue championed the change from articles to traineeships.60 one aspect of the academic qualification that has altered is the proliferation of clinical legal education programs within the degrees. in the latest guide to clinical legal education in australia, 26 out of 38 law schools offer some form of clinical legal education or experiential learning.61 compare this to only three programs in existence in 1991 when sue wrote her influential article blueprint for a clinical program.62 when undertaking clinical legal education programs, students experience disruption; not in relation to technological innovations but rather through dealing with real clients and real issues and interacting with their clinical supervisors who are their role models of lawyers.63 their views about law and justice are often ‘disrupted. students learn about law and its impact on disadvantaged communities; 59 s.17 legal profession uniform law 2014 60 susan campbell review of legal education report : pre-admission and continuing legal education 2006| victoria. dept. of justice. 61 kingsford legal centre, clinical legal education guide 2019-20 uni of nsw https://www.klc.unsw.edu.au/sites/default/files/documents/2924%20cle%20guide-web.pdf 62 susan campbell ‘blueprint for a clinical program’ (1991) 9(2) the journal of professional legal education 121 63 mary anne noone & judith dickson (2002) `teaching towards a new professionalism: challenging law students to become ethical lawyers’ 4 (2) legal ethics 127 https://search.lib.latrobe.edu.au/primo-explore/fulldisplay?docid=almalu21204179360002146&context=l&vid=latrobe&lang=en_us&search_scope=all&adaptor=local%20search%20engine&tab=default_tab&query=any,contains,susan%20campbell%20law&offset=0 https://www.klc.unsw.edu.au/sites/default/files/documents/2924%20cle%20guide-web.pdf reviewed article 25 they critique the law and legal system, reflect on their role as future lawyers while developing legal skills64. clinical legal education programs range from the significant program at monash law school where every student who wants to, can undertake a clinical subject and be engaged in providing legal services under supervision to clients65, to law schools that have a single elective externship subjects or perhaps a clinical component of a subject in which students undertake a simulated piece of legal work.66 the benefits of clinical legal education, a form of experiential education, which is the process of learning through experience and reflection on that experience, are now widely recognised but still clinical legal education remains optional in australia’s law degrees.67 clinical legal education sits on the margins of australian legal education. i argue it is time to challenge that state of affairs. there is an opportunity for those involved in clinical legal education to build on the renewed energy and impetus amongst the legal profession, academics and regulators about the future of australian legal education. 68as i am about to outline, australian clinical legal education is well placed to take a more central role in the 64 adrian evans, anna cody, anna copeland, jeff giddings, mary anne noone & simon rice, (2017), australian clinical legal education, anu press 65 monash clinical guarantee https://www.monash.edu/law/home/cle ; jeff giddings & jacqueline weinberg, experiential legal education: stepping back to see the future 2020, in denvir, c. (ed.). modernising legal education. cambridge uk: cambridge university press, p. 38-56 66 evans et all above n 64, p39-66 67 council of australian law deans adopted best practices australian clinical legal education in sept 2012. 68 for example kevin lindgren, francois kunc & michael coper (ed.), the future of australian legal education, lawbook company 2018 https://www.monash.edu/law/home/cle reviewed article 26 legal education of 21st century legal workers as it already addresses the required attributes of the future legal worker. if law schools are serious about preparing graduates for the unknown future, they need to embed clinical legal education into law schools’ curricula. there are many people questioning whether the current content and form of legal education is sufficient to provide law graduates with the skills and knowledge they will need to work in this rapidly changing legal practice environment.69 for example, in 2017, the new south wales law society’s report on “the future of law and innovation in the profession notes: in a changing environment, the skills and area of knowledge likely to be of increasing importance for the graduate of the future include: technology; practice related skills; business skills and basic accounting; project management; international and cross border law; interdisciplinary experience; resilience; flexibility and ability to adapt to change. 70 69 pauline collins ‘australian legal education at a crossroads’ (2016) 58 (1) australian universities review 30 70 new south wales law society, the future of law and innovation in the profession (2017) reviewed article 27 other commentators argue that the “growing impact of it and the proliferation of legal tech jobs will, counterintuitively, place a heightened premium on “people skills.”71 the lawyer’s human characteristics will differentiate them from technology. it is posited that there are three kinds of intelligence at work in the legal industry today: intellectual (iq), emotional (eq) and artificial (ai).72 each kind of intelligence can be aspects of a student’s learning in a clinical legal education environment. we know that increasingly law schools are offering a variety of subject offerings focussed on technology.73 for example, at monash there is a subject called legal tech studio where students work collaboratively to develop a web based application that solves a contemporary legal issue74; similar courses are run at melbourne university ‘law apps’ program75, uts’s new legal futures and technology major in its law degree76 and la trobe has a masters of law and entrepreneurship77. although not labelled as clinical legal education, these courses are often based on experiential learning, where students collaborate and work with end user groups otherwise known as clients. 71 mark a. cohen ‘getting beyond the tech in legal tech’ https://www.forbes.com/sites/markcohen1/2019/05/03/getting-beyond-the-tech-in-legaltech/#29db384216fc 72 cohen ‘above n. 71 73 rachel kessel, ‘pracademic collaboration: hacking into the future of legal education’ 2019 44(1) alternative law journal 73 74 https://www.monash.edu/study/courses/find-a-course/2021/legal-tech-studio-pdl1031 75 https://law.unimelb.edu.au/students/jd/enrichment/pili/subjects/law-apps 76 https://www.uts.edu.au/future-students/law/courses/undergraduate-law/why-study-uts-law/legalfutures-and-technology-major 77 https://www.latrobe.edu.au/courses/master-of-law-and-entrepreneurship https://www.forbes.com/sites/markcohen1/2019/05/03/getting-beyond-the-tech-in-legal-tech/#29db384216fc https://www.forbes.com/sites/markcohen1/2019/05/03/getting-beyond-the-tech-in-legal-tech/#29db384216fc https://www.monash.edu/study/courses/find-a-course/2021/legal-tech-studio-pdl1031 https://law.unimelb.edu.au/students/jd/enrichment/pili/subjects/law-apps https://www.uts.edu.au/future-students/law/courses/undergraduate-law/why-study-uts-law/legal-futures-and-technology-major https://www.uts.edu.au/future-students/law/courses/undergraduate-law/why-study-uts-law/legal-futures-and-technology-major https://www.latrobe.edu.au/courses/master-of-law-and-entrepreneurship reviewed article 28 however it is argued by several contributors in a recent book on the future of australian legal education, that it is not enough for students to learn about the scope of technological innovation and that artificial intelligence is changing how decisions are made, it remains critical that human legal analysis is applied to these systems. bennett moses states “all law students need a basic understanding of the technologies that are becoming part of the practice of law and the administration of justice. …. [but] students need to know how to use them appropriately and in ways consistent with the rule of law and associated values including fairness, natural justice and legal equality.”78 she also makes the critical point that legal educators need to make sure that future judges and practitioners remain appropriately sceptical about what precisely new technologies offer them and where their limitations lie, that they do not embrace tools such as risk assessment, predictive analytics and blockchain without understanding the limitations as well as the benefits.79 for instance, legal expertise needs to be applied to examine when and how transactions, sentencing decisions, administrative decisions and the provision of target information should be automated, what is the logic and inherent biases in the systems, what regulation is required and particularly, to advocate for remedies when the technology fails. lawyers need to be able to appeal against inappropriate 78 lyria bennett moses ‘the need for lawyers’ in kevin lindgren, francois kunc and michael coper (eds) the future of legal education: a collection (lawbook co. 2018) 370 79 above n 78 p 370; see also allsop above n 23, 18-19 and nicholas diakopoulos "we need to know the algorithms the government uses to make important decisions about us" — https://theconversation.com/we-need-to-know-the-algorithms-the-government-uses-to-makeimportant-decisions-about-us-57869 https://theconversation.com/we-need-to-know-the-algorithms-the-government-uses-to-make-important-decisions-about-us-57869 https://theconversation.com/we-need-to-know-the-algorithms-the-government-uses-to-make-important-decisions-about-us-57869 reviewed article 29 uses of data analytics and expert systems in government decision making. most importantly lawyers need to be prepared to defend core rule of law values in the face of pressures to embrace innovations and disruption. so how does clinical legal education fit in? australian clinical legal education can, and already does, provides many of the skills and knowledge required of 21st century legal workers.80 those involved in clinical legal education will recognise that the desired attributes like emotional intelligence, project management, capacity to collaborate across disciplines and people skills are learning outcomes for many clinical legal education programs. as an example, the monash clinical website81, indicates that this range of skills and knowledge are already to be obtained through undertaking a clinical subject. additionally in australia there is a strong legacy in clinical legal education of critical analysis and formulation of appropriate legislative change and test cases. the location of most clinical legal education programs within community legal centres 80 evans et al above n 64 81 https://www.monash.edu/law/home/cle https://www.monash.edu/law/home/cle reviewed article 30 has meant that students are exposed to discussions about injustice, analysis of both processes and legislation and potential law reform.82 the critical thinking skills that students utilise currently in clinical practices can be equally applied to assessing the advantages, limitations, assumptions and impacts associated with technology in general and artificial intelligences in particular. engaged in clinical legal education, students can work with others to identify problems in access to justice and injustice in the legal system and to develop appropriate responses to clients’ problems and forms of injustice. since the 1980s, clinical legal educators like sue campbell, have been concerned about ensuring students were aware of the wider obligations of lawyers – emphasising legal ethics and the impact of the legal system on disadvantaged clients and communities. australian clinical legal education has a strong history of innovation, often leading the way with new approaches and models of legal practice. as documented by naylor and hyams, “clinical legal educators have not been content to rely on tried and tested programs alone. new ideas about different ways to get the most out of clinical legal experience abound” and the examples detailed in that publication include integration of clinic and academic legal teaching; co-location with a welfare agency eg homeless persons legal advice service; examining domestic, commonplace legal issues within a human rights framework; development of 82 evans et al above n 64, ch 5 pp 97-122 reviewed article 31 specialist clinics eg centre for sexual assault, tax help offices; prisoners, law students and theatrical method being used in clinical community development. 83 more recent examples include: clinics at monash, uni nsw and la trobe have run multi-disciplinary clinics where law students collaborate with students and professionals from other disciplines eg business, social work, financial counsellors, health sciences to provide a holistic service to clients.84 clinical programs at anu and here at monash run virtual clinics where technology enables students to provide legal assistance to clients and groups both national and internationally85. as has been the case historically, australian clinical legal education currently remains interwoven with a concern to improve access to justice and is well placed to encourage students to engage with the types of issues i have outlined above. over the last three decades, people like sue campbell and others, adapted to new forms of technology but they also continued to be innovative in their approaches to learning and modes of service delivery whilst focusing on seeking justice for the disadvantaged; they engaged in critical analysis and modelled what a good and ethical lawyer should be. 83 bronwyn naylor & ross hyams., (ed) innovation in clinical legal education: educating lawyers for the future (2007) alterative law journal monograph no 1 84 ross hyams & faye gertner,.,’multidisciplinary clinics broadening the outlook of clinical learning’ (2012) international journal of clinical legal education. 17, p. 23 85 les mccrimmon, ros vickers & ken parish ‘online clinical legal education: challenging the traditional model’ (2016) 23(5) international journal of clinical legal education 565. reviewed article 32 conclusion there can be no doubt that legal practice and how lawyers work will continue to change dramatically over in the coming years. similarly, how courts and dispute resolution processes function and are accessed will change. equally we can predict that limited access to justice, attacks on the rule of law like robo-debt, growing inequality and social injustice will persist. there is enormous potential for those involved in clinical legal education to challenge this state of affairs whilst, concurrently, providing a legal education that prepares agile and resilient graduates for the unpredictable nature of legal work in the future.86 australian clinical legal education is well positioned to take a more central role in the legal education of 21st century legal workers. those concerned about the future of legal education, should seriously consider how law schools can embed clinical legal education into the legal curriculum. irrespective of the changes to the work that lawyers do, how they do it or where they do it, clinical legal educators can continue to cause disruption, not in the contemporary market sense, but rather in the susan campbell style, agitating for change within the law school and legal profession, whilst modelling for students how to be access to justice champions, protectors of the rule of law and good and ethical lawyers. 86 jeff giddings & jacqueline weinberg, ’experiential legal education: stepping back to see the future’ in denvir, c. (ed.) (2020), modernising legal education. cambridge uk: cambridge university press, p. 38-56 reviewed articles teaching and learning in clinic enhancing employability through student engagement in pro bono projects sarah blandy, university of sheffield, uk*[footnoteref:1] [1: *sarah blandy is professor of law in the school of law, university of sheffield. the author would like to offer thanks for the funding provided by the university of sheffield; to amy murphy and emilie sylvester, the final year students who administered the surveys and made a preliminary analysis of the results; to all the members of staff in the school of law who assisted in compiling lists and encouraging survey responses; and not least to the students and alumni who completed the survey.] abstract this paper discusses the findings of a survey carried out by the school of law at the university of sheffield, placing it in the context of international research on links between student participation in pro bono projects, and employability. the aim of this survey was to establish whether students’ pro bono experiences assist them in obtaining training and employment. over the summer of 2016 a survey was sent to current students and to alumni who were (or had been) volunteering at one of the two longest-established pro bono projects run by the school of law. the paper explains how the survey was designed, conducted and analysed, and discusses the methodological issues which arose. although the original aims of the research were not achieved, and perhaps could never have been, the responses to the surveys yielded very useful and rich data. no direct questions were asked about skills development, but the respondents’ unanticipated and unsolicited qualitative comments can be positively mapped onto the key skills and attributes that constitute ‘employability’. the findings set out here therefore add to the small amount of existing literature about student perceptions of how their experiences as pro bono volunteers assist them through placement, training and employment application processes. introduction an increasing amount of time, effort and resources is invested in university law clinics. in 2014 a survey carried out for lawworks[footnoteref:2] showed that over 70% of uk law schools were then running some form of pro bono legal clinic involving around 10,000 students; and 35% offered more than one type of clinic (dignan et al, 2017, pp. 3 and 4). this activity was broadly defined as ‘a structure that delivers pro bono work that is organised (but not necessarily delivered) by a law school’ (ibid; p. 3). although university law clinics in the uk are unregulated (thomas, 2017), they aspire to the highest professional standards. the work of 79% of these clinics is supervised by ‘a qualified barrister or solicitor with a full practising certificate – be it a member of academic staff or a lawyer external to the law school’ (dignan et al, 2017, p. 8). [2: lawworks is a uk charity that aims ‘to connect people in need of legal advice with the skills and expertise of lawyers willing to meet those needs for free, by supporting a network of local independent pro bono clinics’. https://www.lawworks.org.uk/ [accessed 29 august 2018].] the school of law at the university of sheffield, a russell group[footnoteref:3] university in the uk, is no exception to this trend. its student pro bono opportunities have been expanded and enhanced over recent years, at least partly because of an underlying assumption that these opportunities enhance students’ career prospects. this paper reports on a survey carried out in 2016 which aimed to explore the links between student experiences of pro bono volunteering and their employability. the term ‘employability’ has been defined as a ‘set of achievements, understandings and personal attributes that make individuals more likely to gain employment and to be successful in their chosen occupations’ (yorke, 2006: 8). although, as explained later, sheffield law school offers a wide pro bono programme, the survey only included those current students and alumni who were volunteering, or had done so, at the two longest-established pro bono projects. this was in order to capture any differences amongst those with similar experiences, over ten years. [3: the russell group comprises 24 leading, research-intensive uk universities; see https://russellgroup.ac.uk/ [accessed 10 february 2019].] the paper is structured as follows: further details are given about sheffield university’s pro bono programme and the opportunities it offers to law students, setting this programme within uk and international contexts. then the existing research literature on links between cle or pro bono and employment is reviewed, followed by an outline of research and guidance about skills and attributes linked to employability. the paper then discusses the methodological issues raised when designing research into the impact of pro bono involvement on student employability, before turning to the sheffield survey and a presentation of its research methods, challenges and findings. in the final section of the paper some conclusions are reached. pro bono opportunities at sheffield although a large majority of uk law schools offer their students the opportunity of involvement with practical law projects, the form that these projects take is varied. all university law pro bono projects must strike a balance between offering an acceptable standard of service to clients, and enhancing the learning opportunities for their students. however, there is no consensus amongst university law clinics as to whether students’ cle activities should be part of their assessed degree programme, or whether involvement should be voluntary. similarly, practice and opinions are divided as to whether any module associated with pro bono work should be compulsory or elective. the terms used are also varied. university-run projects are often referred to as ‘clinical legal education’ (henceforth ‘cle’), because they are embedded in the curriculum, and fully assessed. for a full discussion of the differences between cle and pro bono, see corker (2005) and cantatore (2015). however, the sheffield pro bono programme does not conform to all the characteristics identified by these authors, in particular, the emphasis on ‘community service’. at sheffield the term ‘pro bono’ has always been used, rather than cle. in 2008 the two first sheffield pro bono projects were established: the freelaw clinic, which offers advice on civil legal matters, and the miscarriages of justice review centre (the ‘mjrc’, formerly known as the innocence project). the school now allocates around two hundred places a year at ten pro bono projects through a very competitive selection process for student volunteers (both undergraduate and postgraduate). four projects are run in-house and the school has established formal links with six externally-run projects, which include the citizens advice bureaux and the sheffield refugee law and justice project. all the school’s pro bono projects are extra-curricular. however, an optional assessed module has been run for final year undergraduate students volunteering at freelaw or mjrc. from 2016-17 this module has been made available to students volunteering at other pro bono projects run by or associated with the school of law. the module is assessed in part through portfolios in which students reflect critically on the skills developed through their pro bono experiences, a widely accepted form of assessment amongst university law schools that offer pro bono projects or cle (hyams, 2010).[footnoteref:4] [4: students also have to make a presentation to their seminar group about the development of one of those skills; and write an academic essay about the context in which legal advice and support is provided.] it may be useful to provide some further detail about how freelaw and the mjrc operate, to make sense of the survey responses from current or former student volunteers at these two projects. the sheffield model of pro bono differs from that of many other universities because it is student-run. at both mjrc and freelaw, two student managers have overall responsibility for the work of the other student volunteers under the guidance of the part-time co-ordinators of each project, who are members of the law school staff. the students are organised into groups, with more experienced pro bono volunteers acting as group leaders who are responsible for the management of their group’s cases. the criminal cases taken on by the mjrc concern convictions for serious crimes (mostly murder). students work on their group’s case, reviewing the large amount of accompanying documentation, with the ultimate aim of persuading the court of appeal to review the case and consider overturning the client’s conviction. the mjrc project director attends weekly meetings of the student teams, and guides their research. in comparison with the mjrc, the freelaw clinic deals with a large number of civil cases, but these tend to be much less complex. the clinic does not offer advice on financial issues, welfare benefits and immigration problems, but takes on a wide range of other non-urgent civil matters. most uk university law clinics adopt one of two alternative models. the first model can be described as running a 'drop-in' clinic, in which clients attend without appointment and are interviewed by students who usually do not know the nature of the client’s problem in advance. in the second model, the clinic’s cases are 'pre-vetted': potential clients telephone or email in advance, often during a restricted period of time immediately before each semester, and a member of academic staff decides which cases are suitable to take on. in both of these models, students interviewing clients are often supervised by university staff or by external lawyers who assist the project on a volunteer basis. freelaw has adopted the ‘drop-in’ clinic model. however, no supervision is provided for student interviews with clients, either by members of staff or by external lawyers involved with the project. students are instructed never to offer advice at the interview. they take down factual information from the client, and obtain further relevant details and documentation. the students then research the legal issues and may seek guidance from the co-ordinator or other members of law school staff. letters of advice drafted by students are uploaded to the case management system. one of the freelaw directors, both of whom have practising certificates and are covered by professional negligence indeminity insurance, provide comments on accuracy, content, structure and clarity before giving final approval for the advice letter to be sent to the client. the aim is for this advice to be provided within fourteen days. research into links between cle / pro bono and employment one of the aims of university cle and pro bono projects is to facilitate students’ development of ‘lawyering skills’ and professional responsibility (see for example foley et al, 2012). however, surprisingly little research has been published on the issue of whether involvement in cle or pro bono experience assists with developing students’ employability in reality, despite ‘the increasing importance seemingly attached to the … ever-present employability agenda’ by university law schools in the uk (carney et al, 2014, p. 33). one explanation for this might be that, when asked about the relative importance of the reasons for running pro bono projects, nearly all (94%) of the law schools which took part in the 2104 lawworks survey rated ‘educational value’ as a very important aim, as compared with 75% who rated ‘employability’ similarly highly (dignan et al, 2017, p. 4). a systematic search of the past ten years’ issues of the international journal of clinical legal education found no articles on this topic which related to the uk, although articles had been published on the link between employability and professional skills development by law students in australia (cantatore, 2018) and in nigeria (mokidi and agbebaku, 2012). the recent article by cantatore (2018) sets out the findings from the author’s survey of two cohorts of law students at bond university, australia. the first group were involved for one semester in pro bono activities, and the second were not. this research provides interesting points of comparison with the sheffield survey, as it uses the same definition of employability (yorke, 2006) and measures responses against the skills listed in the australian graduate employability survey (oliver et al, 2011) supplemented by work by kuh (2001) in the us, and by coates (2009) in australia. cantatore’s skills list is similar to the graduate skills and attributes compiled by the higher education authority in the uk (see buckley, 2015), which provides one of the measures referred to in this article. this list is set out in a subsequent section, and more detailed methodological comparisons with cantatore (2015) will also be discussed subsequently. cle is well-established in us universities[footnoteref:5]; over many years research has been published asserting the benefits of cle for student employability. more recently, research by yackee (2015) surprisingly suggested the opposite. however, kuehn (2015) has comprehensively critiqued yackee’s statistical findings, pointing out a fundamental confusion between correlation [two factors appear to develop at the same time and follow the same trajectory] and causation [one factor has caused the other]. kuehn then goes on to discuss other forms of evidence, including the fact that many employers in the us ‘identify law clinic experience as a positive factor in hiring’, and that new employees give weight to their clinic experience as a factor in successful job applications (ibid., p.660), which support the widely-held view that cle enhances student employability. kuehn’s work will be referred to again in the discussion of methodological issues. [5: it should be borne in mind that in the usa, law courses are open only to postgraduates.] in the uk, currently there seems to be only anecdotal evidence that uk students’ employability is enhanced through pro bono projects, and through the self-reflection about skills development which is required by the associated modules offered at many uk universities, including sheffield. only one systematic attempt in the uk to collect evidence of the link between pro bono experience and employability has been identified, the survey carried out by the personal support unit (psu)[footnoteref:6]. the psu runs an ongoing national survey targeted at its ‘student alumni’ who have been volunteers. analysis of responses to the psu’s 2015 survey, which is the most recent available, found that 87% of the respondents were in employment. of the 69% of former psu volunteers now employed in the legal sector, all felt that their experience as a psu volunteer had helped them to secure either pupillage, or a training contract or employment (psu, 2015). [6: see https://www.thepsu.org/volunteer/student-alumni-survey [accessed 10 february 2018]. the psu is a national charity which provides assistance at family and civil courts to litigants in person, witnesses, and other inexperienced court users. the psu in sheffield is one of the external pro bono projects which selects students from the school of law as volunteers.] a valuable recent uk research project focused on the perceptions of legal employers about cle, rather than on student experiences (thomas, 2018). the graduate recruitment webpages of the top 50 uk law firms were analysed. none of these included cle (or pro bono) as an example of experience sought in future trainee solicitors, although ‘nearly three-quarters’ of those firms mentioned ‘their own pro bono and/or corporate social responsibility activity’ (ibid. p.138). telephone interviews were also carried out with recruiters from two barristers’ chambers, a law centre, six of the top 25 uk solicitors firms, seven international firms, ten regional firms, and five legal aid organisations. these revealed that employers ‘certainly were not familiar with the term “clinical legal education”’ (ibid., p.137). however, once provided with some information about cle, the recruiters could easily identify skills and attributes likely to be developed in students taking part. the majority of interviewees seemed to understand cle as similar to a placement at a law firm or chambers, but considered that taking part in cle would provide a more valuable experience as students had direct contact with clients. thomas concludes that the term ‘pro bono’ should be adopted instead of cle, and that universities should do more to educate legal employers about their clinics and the professional standards adopted in them. she also suggests that students should be helped to reflect on their skills development through involvement in pro bono, and how to present this most effectively to prospective employers (thomas, 2018). this overview of the research literature on the development of employability by students involved in cle and pro bono indicates that there is scope for more research in this area, particularly in the uk. it is in this context that the sheffield survey and findings are discussed in this paper. first, the definition of employability itself is considered. employability and skills development a general survey of uk employers found a gap between their expectations of trainees and employees and the reality, for both ‘hard’ and ‘soft’ skills: ‘skills related to operational aspects of the role, as well as complex analytical skills, were the main technical and practical skills lacking. the main people and personal skills lacking pertained to time management, management and leadership, and sales and customer skills’. (uk commission for employment and skills, 2016, p.4). although presented at a more abstract level, a similar emphasis is apparent in the ranked ‘top ten skills’ which global employers will be seeking in 2020: 1. complex problem solving 2. critical thinking 3. creativity 4. people management 5. coordinating with others 6. emotional intelligence 7. judgement and decision-making 8. service orientation 9. negotiation 10. cognitive flexibility (world economic forum, 2016; henceforth ‘wef’). it is noticeable that in this list attributes such as creativity, and ‘people skills’ such as emotional intelligence and the ability to co-ordinate with others, take priority over hard skills. indeed, in relation to cognitive skills, the most desired attribute is apparently flexibility rather than detailed subject knowledge. these observations of employers in general are important, particularly as law graduates do not all seek, or are able to obtain, employment in the legal sector. according to the uk higher education academy, all university graduates should have acquired the following skills during the course of their degree: · thinking critically and analytically · writing clearly and effectively · speaking clearly and effectively · analysing numerical and statistical information · independent learning · innovation and creativity · working effectively with others · developing and clarifying personal values · understanding people of other backgrounds · exploring complex real-world problems (buckley, 2015). interestingly, although all the above skills can be seen as contributing to employability, the higher education academy’s uk engagement survey treats ‘acquiring employability or career skills’ as an additional, stand-alone skill. analysis of responses from more than 35,000 undergraduates to the 2017 survey found that: ‘the one exception to the [upward] trends on skills development is the decline in the proportion of students who are acquiring career skills, which has fallen from 51% last year to 49% this year’ (neves, 2017, p.14; emphasis added). the hea survey established that employability skills, as well as engagement in real-world problems, were better developed in students who participated in extra-curricular activities (buckley, 2015, p.21). a similar effect was found in students who volunteer, leading to a particularly marked positive difference in ‘being an informed and active citizen, developing personal values, and acquiring employability skills’ (ibid., p.23). it seems therefore that volunteering at pro bono projects as an extra-curricular activity should enhance students’ acquisition of key skills. further, according to the hea survey (ibid.), students’ positive perceptions of their skills development were closely related to four other factors: · collaboration with other students; · interaction with teaching staff; · engagement in research; and · reflection on what they had learned. these are all features of pro bono volunteering at sheffield. the way that freelaw and mjrc are organised requires collaboration with other students to work on the cases in groups. student interaction with staff is an essential aspect of these pro bono projects, whereas the 2017 hea survey found that only 19% of all students had worked with staff outside the requirements of their degree course, a reduction from previous years (neves, 2017, p.26). engaging in research, as student volunteers do when working on pro bono cases, is a particularly important activity which has ‘the strongest relationship with developing the skill of being innovative and creative’ (buckley, 2015, p.17). creativity is one of the top three skills identified by global employers, as listed above (wef, 2016). the optional pro bono module offered at sheffield requires critical self-reflection, and the students also benefit from individual supervision sessions with their tutor, which is an integral aspect of the teaching methods for that module. employers in the legal sector are looking for ‘hard’ skills such as subject-specific knowledge, as well as the more general, transferable or ‘soft’ skills already mentioned. for example, hammad akhtar, a graduate recruitment and corporate partner at ashurst solicitors, told the guardian uk 300 (the group of top 300 graduate employers, as voted for by students) that he looked for ‘technical legal ability, commercial instinct and analytical ability… communication and team working skills … and motivation, determination and drive’ (targetjobs, 2018), an interesting combination of hard and soft skills and attributes. the uk’s solicitors regulation authority reflects this combination in their statement of solicitor competence, which is organised under the broad headings of ‘ethics, professionalism and judgement; technical legal practice; working with other people; managing themselves and their own work’ (solicitors regulation authority, 2015). for many law students, engagement with the legal profession starts at university when they apply for (and undertake, if selected) vacation placements and mini-pupillages. most law schools in the uk provide tailored careers advice, but information is not available about the content of this advice, nor about the proportion of law students who take advantage of it. anecdotally, however, it is well-known that many students make use of the online advice that is available for those seeking training and employment in the legal sector. the following skills and attributes, presented as those sought by commercial law firms, appear in many similar online sources: · commercial awareness · attention to detail · time management · resilience and self confidence · organisational skills · genuine interest in and broad knowledge of the law · sensitivity and integrity · articulacy · discretion and trustworthiness (list compiled from smith (2017); and https://www.monster.co.uk/). the literature on the benefits of cle claims that it provides students with the opportunity to develop most of the skills and attributes discussed in this section (see for example thanaraj, 2016). the aim of the sheffield survey was to see if a link could be established between involvement in a pro bono project, development of these skills and future employment. the next section of the paper provides an overview of the methodological issues raised by this type of research. research design and methodological issues kuehn (2015) discusses the methodological difficulties of designing research which might establish a statistically significant correlation between a student’s involvement in any given us university law clinic and their subsequent employment. he identifies problems of ‘conjecture about cause and effect, uncertainty about the underlying data, variability from year-to-year, conflicting control variables, and differences among schools and their employment markets’ (ibid.; 663). he suggests that instead of ‘attempting to create a nationwide predictive model, studies could best be done on a school-by-school basis by, for example, surveying likely employers to find out what educational experiences of students are most valued. schools also could retrospectively look at various employment outcomes for graduates and any relationship to their experiences while students.' (ibid., 664) as noted above, thomas (2018) has carried out a survey of prospective uk employers. the sheffield survey was designed to meet kuehn’s second point about graduate employment and the link between these outcomes and experiences as students. in addition we wished to find out more about the experiences of current students who apply for vacation placements and training contracts while still at university, and the outcomes of those applications. therefore there were two cohorts whom we wished to reach in the sheffield survey: the first consisting of all students currently volunteering at freelaw or mcrj; the second of alumni who had volunteered at either project during the previous ten years. once ethical approval had been obtained, two students were recruited to assist with administering the survey. surveymonkey[footnoteref:7] was chosen for the survey instrument as it provides a free online survey with built-in tools for analysing the data and for creating graphic representations of the quantitative results. contact details were compiled from various sources, resulting in 105 names on the list for the first cohort (current students), and 136 for the second cohort of alumni. a standard form of words was prepared, introducing the project and asking respondents to complete the survey, with links to surveymonkey and to the information sheet for the project. this message was emailed to the first cohort, and sent through linkedin to the second cohort, during summer 2016. the surveys remained open for three months, from may to july. the survey’s substantive questions asked each participant whether they (had) volunteered at freelaw or at mjrc, and if so for how many years. the respondents were asked for their views on whether ‘volunteering at the pro bono project [or taking the pro bono optional module] while at the school of law was a help in gaining training /employment in your chosen field [and/or] in securing any training / employment’. respondents were invited to explain each of their answers in a ‘free-text box’ on the survey form. [7: see https://www.surveymonkey.com/ [accessed 10 february 2019].] problems with the research design for some participants in the first cohort became apparent when analysing the responses. for example, some respondents replied ‘no’ to the question about training, but said in answer to the question about employment that volunteering with freelaw had helped them to obtain a vacation scheme place. there was obviously some ambiguity about whether vacation schemes were perceived as training or as employment, which had not been foreseen when drafting the questions. with hindsight, the substantive questions for the first cohort should have asked separately about vacation placements and training contracts, and asked separate questions about training and employment outside the legal sector. further, some current students seemed to have answered the question ‘has pro bono volunteering helped in securing employment?’ on the basis of what they believed would be the case in future, rather than on the basis of their actual experience. similarly, some participants in the first cohort gave positive responses to the question about whether the module had assisted them in securing training or employment, when it was clear from a previous answer that they had not yet taken the module. the final response rates were 22% for the first cohort (23 full responses) and 21% for the second cohort (29 full responses). the response rate for the first cohort was disappointing, as these were current students who received two further emails prompting them to complete the survey before its closing date. however, the survey was not well-timed for this cohort as it coincided with revision and assessment periods followed by the vacation. the low response rate for the second cohort was anticipated, as they were alumni who had left university some time ago. it might have been possible, with considerable time and effort, to obtain responses to the sheffield survey from almost all the listed individuals in both the first and second cohorts. however, given the resources available, this was not feasible. the research design allowed for the results to be analysed by various variables: according to whether each respondent had been involved in the mjrc or in freelaw; the length of time they had been a volunteer; and (for the second cohort) their year of graduation. however, as the overall numbers were so low, this depth of analysis was not considered worthwhile. in both cohorts there were more survey participants from freelaw than from mjrc; there are over twice as many student places available each year at freelaw (currently 80 places) as at mjrc (currently 45 places). in the survey’s first cohort there were 16 participants who were freelaw volunteers and 7 mjrc volunteers. as this cohort’s experiences are more recent we thought it may be of interest to distinguish their responses between freelaw and mjrc, but it seemed irrelevant to distinguish between the second cohort respondents by project, as so few of them had volunteered at the mjrc. the most significant contrast with the surveys carried out by the psu (2015) and by cantatore (2018), was that the sheffield survey did not include any direct questions about development of skills or attributes. the psu survey asks ‘what benefits did volunteering with the psu have on your life?’, to be answered on a yes/no basis against eight pre-set responses. these are set out below, with the percentage of respondents who agreed that their experience of volunteering with psu had: · improved client skills (82%) · raised awareness of the diverse range of people who require legal advice (76%) · improved listening skills (71%) · improved understanding of the legal system (71%) · practical application of what i learnt on my law course (68%) · raised awareness of how important it is to get legal advice (66%) · provided good first-hand examples of real life experience for job applications and/or interviews (62 %) · provided direct exposure to a range of court cases (59%) (psu, 2015). the psu survey report does not disclose response rates, making it difficult to assess the significance of, for example, 82% of the total when this could represent 100 or 1,000 respondents. further, surveys from the years subsequent to 2015 have not been made publicly available although the survey is still ongoing, so no conclusions can be drawn about any trajectory over time. it is also instructive to compare the research design of the project described by cantatore (2018). her survey was administered twice, in weeks four and 12 of the semester in which students were taking part in pro bono projects, to capture an increase or decrease in each respondent’s perception of their level of competence in relation to specified key skills (the list discussed earlier). there were 33 respondents, participating in four different pro bono projects. the same survey was administered to a control group of 34 students who were not taking part in pro bono projects. these two comparisons, over time and between groups, enable cantatore to demonstrate that the pro bono group of students showed a far higher average increase in self-assessed competence than the control group, over the same period of time. the students involved with the commercial law clinic are reported as showing a higher average increase over time than volunteers at the other projects. however, this last finding cannot be considered robust due to the low numbers (either four or five) participating in each of the other projects. the use of a control group is excellent research practice, but in reality it would be very difficult to set up a genuine control group for such research. the students who participate in cle or pro bono projects which are not a compulsory element of their degree programme, tend to be more motivated than their peers. if there is in addition a selective recruitment process, as at sheffield, the chosen students will already have acquired more impressive and relevant skills, including the ability to learn quickly when given the opportunity. these factors may at least partly explain the difference in average increases in self-assessed competence, between the pro bono students and members of the self-selected control group in cantatore’s research (2015). a genuine control group could only be achieved at sheffield by recruiting twice as many students as needed for the pro bono programme over a period of several years, without allowing this to become public knowledge. each year the group of selected students would then be randomly divided into two. the first half would be allocated to their chosen pro bono project, and the second half would be denied that opportunity.this would of course be wholly unethical. all students, from both groups in each year, would be followed for the next ten years to research the comparative impact on their employability of (non-)involvement in pro bono programmes at university. cantatore (2018) incorporated a more qualitative element in her research. once students had completed their semester at a pro bono clinic, they were invited to complete an anonymous surveymonkey survey about their experiences ‘and to provide detailed feedback if they choose to do so’ (ibid., 164). although neither the response rate to the survey nor how many students chose to provide feedback in this way is made explicit in the paper, the survey provides useful information about student perceptions of their own skills development. several illustrative extracts from students’ responses are included in the article, and cross-referenced to skills such as ‘knowledge, writing, speaking and problem-solving’ (ibid., 167-168). all the sheffield survey respondents were also self-selected – as indeed were the psu survey respondents (psu, 2015). self-selected research participants are often those who are motivated to complete the survey because they hold strong views on the topic, and/or because they feel indebted in some way to the people or institution conducting the survey; the research outcomes may therefore be biased (sterba and foster, 2008). thus the sheffield survey captured the views of a minority of students who have volunteered at the law school’s pro bono projects over the past ten years. the survey respondents were likely to be students and alumni who felt they had gained from the experience of pro bono volunteering. this does not mean that their views are not valuable, rather that they are not necessarily representative of all past and current student volunteers at freelaw and mjrc. in particular it should be noted that the views expressed in respondents’ own words and quoted in this report have been taken primarily from those who felt that pro bono volunteering had assisted them in their progression towards a career, or in obtaining promotion within that career. it could therefore be assumed that these students and alumni are the success stories. bearing that caveat in mind, a number of important findings can nevertheless be drawn from the survey results about the link between pro bono volunteering at sheffield, and employability. analysis of the sheffield survey responses for the methodological reasons discussed above, reliable quantitative data could not be derived from this survey. instead, its value derives from the very rich data collected on respondents’ views about their pro bono experiences. in the absence of direct questions about skills and attributes associated with employability, it was very striking that most respondents, from both cohorts, chose to expand on this aspect of pro bono volunteering in their explanations. they used their own words without any suggestions or prompting, in contrast to the psu survey where participants must agree or disagree with set statements, and to the quantitative element of cantatore’s research in which students were asked to assess their competence against a stated list of skills and attributes. the comments reproduced here come from the survey participants who specifically gave their consent for their words to be published, anonymously. the quotes can be identified by the following abbreviations: ‘fl1’: current freelaw volunteer, in the first cohort of the survey; ‘mjrc1’: current mjrc volunteer, in the first cohort of the survey; ‘pb2’: previous volunteer at either of the two pro bono projects, now graduated; in the second cohort of the survey. it was clear from many of the survey responses that pro bono volunteering allows students to discover and experience for themselves the long-established difference between ‘law in books’ and ‘law in action’ (pound, 1910). current students are very appreciative of the opportunity to get involved in ‘authentic legal cases’ (fl1). one respondent wrote: ‘this is serious work, working with proper documents, dealing with actual people's lives’ (mjrc1). another commented positively that ‘it [mjrc] creates quite an "employment" atmosphere’, explicitly making the link between pro bono experience and employability. these views mirror those expressed by cantatore’s research participants (cantatore, 2015 and 2018). the pro bono projects at sheffield provide a rare opportunity for those students selected as student managers and group leaders to develop skills in managing people: ‘i’ve learnt to delegate appropriately and take control in situations when necessary, but still have awareness for the voices and opinions around me’ (mjrc1). an emphasis on teamwork and organisational skills was particularly noticeable in respondents from the first cohort who were mjrc volunteers. one respondent commented on having grasped the importance of ‘relying on others and working with others to ensure a task is done. you need to learn to value the opinions of others and listen to what they have to say, accepting that your way may not always be the best (increasing trust).’ (mjrc1). many in the second cohort of respondents are now in employment and can look back with some perspective on the skills they developed through pro bono volunteering. one described these as ‘very transferable’ (pb2), while another participant commented that ‘i took these skills with me to my following roles after university’ (pb2). the value of the ‘opportunity to get advice from practitioners’ (pb2) as a pro bono volunteer was cited by a second cohort respondent, but not by any of the first cohort participants who may not yet appreciate the benefits, which the hea survey results indicate are particularly significant in developing employability skills (buckley, 2015). some second cohort participants compared their pro bono experience positively with low-level posts in the legal sector; for example, one respondent commented on the value of having ‘experience in case management which you don't get as a legal secretary or junior paralegal’ (pb2). such posts can be an important stepping stone towards obtaining a training contract. analysis of the free-text answers made it possible to map the skills and attributes which were mentioned onto the lists previously discussed (wef, 2016; buckley, 2015; smith (2017). the participants in the sheffield survey may not have used exactly the same term for each particular skill, so some interpretation has been necessary in the mapping process, and of course there is no suggestion that any one participant mentioned all the listed skills. table 1: comparison of skills mentioned by participants in the sheffield survey, with skills listed by the world economic forum (wef), online legal careers advice, and the uk higher education authority (hea) wef survey online careers advice survey hea survey complex problem solving commercial awareness x thinking critically and analytically critical thinking attention to detail writing clearly and effectively creativity time management speaking clearly and effectively people management (for some) resilience and self-confidence analysing numerical and statistical information x coordinating with others organisational skills independent learning emotional intelligence genuine interest in, and broad knowledge of the law innovation and creativity judgement and decision-making sensitivity and integrity working effectively with others service orientation articulacy developing and clarifying personal values unclear wef survey online careers advice survey hea survey negotiation unclear discretion and trustworthiness understanding people of other backgrounds unclear but probably cognitive flexibility exploring complex real-world problems becoming an informed and active citizen unclear but probably definite evidence from survey responses 9/10 8/9 7/11 probabable 1/10 3/11 total 10/10 8/9 10/11 ‘analysing numerical and statistical information’ and ‘commercial awareness’ were the only two skills and attributes listed above which were not specifically mentioned in survey responses. this is understandable given that student volunteers at the commercial law clinic run at sheffield were not asked to take part in the survey. however, the respondents from freelaw and mjrc were aware that they were acquiring ‘important skills that can be transferred into a commercial law environment, e.g. filing, teamwork, leadership and working to a deadline’ (mjrc1). in terms of developing self-confidence, cognitive flexibility and problem-solving skills, one respondent noted that ‘freelaw opens you up to various areas of law and pushes you to work outside your comfort zone’ (fl1). in addition to the skills listed, the survey respondents also identified a range of ‘hard’ skills relevant to legal careers, such as legal research, dealing with clients, interviewing, drafting letters and legal documents. linking skills to employability as explained above, it was not possible given the low response rates and the sometimes contradictory responses from participants in the first cohort to derive any statistically reliable correlation between volunteering at either pro bono project and the respondents’ subsequent training or employment. however, quantitative results from the first cohort survey results show that 91% (21 out of 23) considered that pro bono volunteering had assisted them in securing placements, training, employment or promotion. for the second cohort the comparable rate was 86% (25 out of 29). this difference could be explained by improvements in the organisation and delivery of the pro bono projects by the law school year on year, or it might be a result of the optimistic expectations of current students in the first cohort who had not read the question accurately. survey respondents were asked about their future, current and past placements, training and employment, although a significant proportion chose not to answer this question. in the first cohort, several top uk and international law firms were mentioned. respondents in the second cohort reported on a range of employment. three were working as qualified solicitors; thirteen as trainee solicitors, and five in a paralegal capacity of whom two would be shortly moving on to training contracts. another respondent from this cohort was a postgraduate researcher; one was working as a policy adviser, and another as a teacher. the law firms mentioned by participants from the second cohort included four of the five law firms with london headquarters, informally known as the magic circle: the top performers in terms of profitability, revenues and international work. several survey participants felt that their pro bono experiences had been the key to their success, stating for example that volunteering had ‘helped me with my professional development in securing and being successful in criminal law placements’ (mjrc1); ‘it's got me a vacation scheme at my dream firm. it helped with the assessment centre’ (fl1); and ‘volunteering at the freelaw clinic was invaluable in securing a training contract’ (pb2). participants’ perceptions of how employers view pro bono volunteering sheffield, like many law schools, has good links with employers.rgular discussions are held to identity what employers are looking for in the recruitment process. the survey respondents provided first-hand accounts of assessment processes and interviews for placements and/or for positions as trainees and employees, from ‘the other side of the table’. many participants in the survey offered their views on how much employers appear to value pro bono experience; for example: ‘i have had many training contract interviews recently and the interviewers all asked me about my time volunteering at the freelaw clinic and were very interested in the sorts of things i did. my general feeling was that they found it very impressive’ (pb2). more specifically, it seems that ‘employers love people with client experience’ (fl1), treating this as a proxy for having acquired relevant hard skills. further, ‘employers are always interested in these soft skills’ which are associated with involvement in pro bono projects (mjrc1). the comment that ‘voluntary work is usually looked at positively’ (pb2) chimes with other explanations that pro bono volunteering ‘demonstrates interest and passion to employers’(mjrc1), and that it ‘will always stand out on a cv as it shows not only a genuine interest but willingness to help others with no financial gain. this selflessness is really attractive to employers’ (mjrc1). survey participants also thought that the type of legal work undertaken at freelaw and mjrc would be of interest to employers: ‘most firms carry out an element of pro bono work (albeit usually small) so it is good to show that you would be interested in this’ (mjrc1). these accounts accord with the findings of the employers’ survey discussed earlier, even though none of the recruiters interviewed ‘mentioned that participating in clinical legal education on a voluntary basis might be indicative of personal values that would be attractive in potential recruits’ (thomas, 2018, p.140). the employers’ enthusiasm and interest which the survey participants reported must therefore be dependent on effective presentation of the applicant’s pro bono experience, as it is apparent that cle is generally poorly understood by employers. for example, thomas’ interviewees quickly identified that interpersonal skills and communication (with clients) would be developed through cle, but none of them identified teamwork (ibid.,) which is an essential skill in pro bono project volunteering. how pro bono experience is used in securing placements, training, employment and promotions this section of the paper focuses on participants’ accounts of how they made use of their experiences at freelaw and mjrc at the various stages of the recruitment process. it was difficult to make a selection of these qualitative responses, as there were so many which made excellent points. those reproduced here are representative of similar views expressed by several respondents. applying for vacation schemes, or for a training contract, are the commonest first points of entry into the legal profession. many participants from the first cohort reported that pro bono volunteering helped them to ‘perform in assessment centres and apply skills in problem scenarios’ (fl1). one respondent wrote that their pro bono experience had supplied ‘examples in my answers to evidence my skills and my commitment to the legal profession’ (fl1). in terms of broader employability, another respondent wrote that ‘having evidence to support your soft skills is great and the mjrc gives me this’ (mjrc1). second cohort participants also had experience of applying for training contracts, for post-qualification posts, and for promotions. one respondent from this cohort, who had been a student manager, explained that ‘i have used the leadership and management experience gained through working with free law at every external and internal interview since university’ (pb2). another participant wrote that ‘i have also applied for teaching work, and my pro bono experiences were just as beneficial here’ (fl1), although most survey respondents were focused on a legal career. recruitment processes in this sector often require candidates to address the solicitors regulation authority’s statement of solicitor competence (sra, 2015). one respondent described the skills and experiences gained through pro bono volunteering as: ‘essential for both legal job interviews and graduate scheme interviews. in each process you are required to undergo a competency interview or answer competency-based questions on application forms. i am confident that at least 50% of all the competency questions i have ever answered have been from situations during my time at freelaw’ (pb2) a widely-held view, that volunteering at freelaw or mjrc helped respondents to stand out from the many other good graduates who are their competitors for positions in the legal profession, was expressed by many respondents. one participant said that volunteering at the mjrc ‘helped me demonstrate an ability beyond that provided by the traditional law degree … showing that i was a good candidate for my job’ (pb2). another respondent commented that ‘when applying for training contracts it is very difficult to distinguish yourself, it is also difficult to answer problem-based questions without any experience. therefore having the opportunity to talk about real life situations really helps’ (pb2). pro bono volunteering was also seen as confidence-building, which helps alumni succeed in a crowded job market. in the words of this respondent, ‘i was able to talk with more legitimacy about what i enjoyed about the law in practice and what i was good at / weaker at. my whole application had more gravitas’ (pb2). these very positive experiences described by the law school survey’s respondents seem significantly different from those taking part in the psu survey, in which less than two-thirds (62%) of respondents felt that volunteering at psu had provided them with ‘good first-hand examples of real life experience for job applications and/or interviews’ (psu, 2015). in contrast, for example, this participant to the law school’s survey was typical in reporting that ‘i was able to give comprehensive answers to all the questions asked in interview [for a training contract] just by using freelaw’ (pb2). value added by taking the pro bono module sixteen respondents from the first cohort (70% of the total) and twenty-three (80%) of the respondents in the second cohort had taken the optional module, which is only available to final year pro bono volunteers. when these respondents were asked if taking the module had assisted them in obtaining training or employment, 61% of the second cohort agreed. for the first cohort, this figure was 75%. this difference in the positive link between the module and employability may be due to changes introduced in the teaching and assessment of the module over the last few years, which include a greater focus on critical assessment of skills development and self-reflection. on the other hand (as previously discussed) the difference might be a result of the optimistic expectations of current students in the first cohort who had not read the survey question accurately. nevertheless, the detailed views which participants volunteered, about the benefits of taking the module, proved extremely interesting. nearly all respondents who expressed an opinion included an explanation that the module’s requirement for critical self-reflection had proved particularly helpful. this participant, for example, considered that the module provided: ‘an opportunity to show future employers that i was able to critically evaluate myself. personal reflection is an important skill that employers are increasingly looking for, therefore i think the module was useful in securing a training contract’ (pb2). many of the respondents considered that the module had been useful because students were required to identify and discuss, in their assessed portfolios, the competencies and skills developed through pro bono involvement. this exercise was reported to have assisted in many aspects of the recruitment process. one participant wrote that ‘self-reflection has made me realize how much work i have done and what i am capable of and what i need to work on. i am now more confident in writing cover letters about myself’ (mjrc1). another survey participant explained that, without having to complete the portfolio, ‘i probably wouldn't have thought to write down all the great examples of leadership and learning that i experienced’ (pb2). the practical impact of the portfolio assessment was expressed by this respondent, who felt that it had made the interview process less stressful, because ‘by completing the module i had information at the forefront of my mind to answer questions’ (pb2). interestingly, although the low numbers mean it is not possible to place any statistical reliance on this result, those respondents in the first cohort who were taking the module expressed more positive views about the general value of pro bono volunteering in enhancing employability, in comparison with their peers who were not taking the module. this may be due to the individual contact with tutors which, as explained above, is a feature of the module, and is a key indicator of student engagement and perception of skills enhancement (buckley, 2015). some survey participants did not feel that the module had assisted their employability, but none of these offered any further explanation in their survey responses. the following comment speaks for most survey respondents: ‘taking the module demonstrated my commitment to developing practical legal skills as opposed to just learning black-letter law’ (fl1). the views and experiences of participants in both cohorts who have taken the optional module give a very useful insight into why and how they felt it enhanced their employability. conclusions this research project was not able to demonstrate statistically a direct correlation between pro bono volunteering and students’ employability, or their subsequent employment. the problems of achieving a robust research design to address those issues appear insurmountable, not least the difficulties of establishing a comparable control group. however, given the resources which universities now commit to cle or pro bono programmes, and the assumptions that students’ employability skills and attributes are enhanced through participation in them, it is important to research connections with employability. there have been few studies in this field so far, and those (including the sheffield survey) have been small-scale and inexpensive to conduct (see cantatore, 2018, and thomas, 2018) but have nevertheless established many valuable points. the additional value of the sheffield study lies in the unprompted qualitative data included in the survey responses. with0ut being provided with a list of skills, survey respondents said they had developed particular skills and attributes through pro bono volunteering, which can be matched against the lists developed by the world economic forum, careers advisers for the commercial law sector, and the hea uk engagement survey. these serendipitous findings (foster and ford, 2003) from the survey comments make it clear that pro bono volunteering offers students the opportunity to develop both hard and soft skills, beyond the academic curriculum. the majority of respondents felt that the experience of pro bono volunteering had enhanced their employability, in the accepted sense of a ‘set of achievements, understandings and personal attributes that make individuals more likely to gain employment and to be successful in their chosen occupations’ (yorke, 2006: 8). the survey respondents’ accounts of applying for vacation schemes, training contracts and employment in the legal sector, indicates that their experience of engaging with ‘real world’ legal issues is recognised by employers, marking out pro bono volunteers from their peers. further, students who have developed skills and attributes through engagement with pro bono projects understand how to use and present these in recruitment processes, both in the legal sector and more widely, with a considerable degree of success. this seems particularly marked for the sheffield students who took the optional module, which requires critical self-awareness of skills development. the survey also confirms the benefits, in terms of developing employability skills, of the student-run pro bono model developed at sheffield which gives volunteers greater responsibility and opportunities to develop both hard and soft skills. this may help them to stand out from their peers at other uk law schools which also run pro bono clinics and similar cle projects, albeit on a ‘pre-vetted’ basis or with more staff involvement. echoing cantatore (2018), there is a need for more research into the various aspects of developing employability skills in law students. however, caution is needed when presenting research findings. the methods used must be carefully explained, so that the data can be distinguished from other research carried out or which is being planned. findings from one small-scale survey should not be taken to be applicable to other contexts. each university running a law clinic has its own version of cle or pro bono programme, and jurisdictional differences must also be taken into account. some points of general applicability can nevertheless be derived from this research project. students should be made more aware of the close connection between cle or pro bono involvement and employability, which is particularly apparent from the data provided by second cohort respondents in the sheffield survey. if the module associated with these activities is optional, more students should be encouraged to take it, as the survey data indicates it supports them in identifying and presenting the employability skills, both hard and soft, which they are acquiring. this is reportedly useful in the recruitment process, particularly in dealing with competency-based questions. law schools should therefore be encouraged to continue, or increase, devoting resources to cle and pro bono projects. references buckley, a. (2015) ukes 2015: students’ perceptions of skills development. york: higher education academy. accessible at: https://www.heacademy.ac.uk/knowledge-hub/uk-engagement-survey-2015 cantatore, f. (2018) ‘the impact of pro bono law clinics on employability and work readiness in law students’, international journal of clinical legal education, 25:1, 147-172. cantatore, f. (2015) ‘boosting law graduate employability: using a pro bono teaching clinic to facilitate experiential learning in commercial law subjects’, legal education review 25: 1, 147-172. carney, d., dignan, f., grimes, r., kelly, g. and parker, r. (2014) the lawworks law school pro bono and clinic report. lexisnexis. coates, h. (2009) engaging students for success: australian student engagement report. melourne: australian council for educational research. dignan, f., grimes, r. and parker, r. (2017) ‘pro bono and clinical work in law schools: summary and analysis’, asian journal of legal education, 4:1, 1-16. foley, t., rowe, m., holmes, v. and tang, s. (2012) ‘teaching professionalism in legal clinic – what new practitioners say is important’, international journal of clinical legal education, 17, 5-22. foster, a. and ford, n. (2003) ‘serendipity and information seeking: an empirical study’, journal of documentation, 59: 3, 321-340, hyams r. (2010) ‘assessing insight: grading reflective journals in clinical legal education’, james cook university law review, 17, 25-46. kuh, g. d. (2001) the national survey of student engagement: conceptual framework and overview of psychometric properties. bloomington, in: indiana center for postsecondary research. kuehn, r. r. (2015) ‘measuring clinical legal education’s employment outcomes’ wisconsin law review 645-664. mokidi, s. k., and agbebaku, c. a. (2012) ‘legal clinics and professional skills development in nigeria’, international journal of clinical legal education, 17-18:1, 38-48. neves, j. (2017) the uk engagement survey 2017: student participation and skills gain. york: higher education academy. accessible at: https://www.heacademy.ac.uk/knowledge-hub/ukes-2017-report oliver, b., whelan, b., hunt, l., hammer, s., jones, s., pearce, a. and henderson, f. (2011) introducing the graduate employability indicators. canberra: australian learning and teaching council. accessible at; https://www.assuringgraduatecapabilities.com/uploads/4/5/0/5/45053363/introducingthegei.pdf personal support unit (2015) training the profession. [no longer available online]. pound, r. (1910) ‘law in books and law in action’, american law review 44, 12-36. smith, j. (2018) ‘7 skills for a successful law career’, prospects. accessible at: https://www.prospects.ac.uk/jobs-and-work-experience/job-sectors/law-sector/7-skills-for-a-successful-law-career solicitors regulation authority (2015) statement of solicitor competence. accessible at: http://www.sra.org.uk/threshold and http://www.sra.org.uk/knowledge sterba, s.k. and foster, e.m. (2008) ‘self-selected sample’, in paul j. lavrakas (ed) encyclopedia of survey research methods, sage researchmethods. accessible at: http://methods.sagepub.com/reference/encyclopedia-of-survey-research-methods/n525.xml targetjobs (2018) ‘what skills do law firms look for when recruiting graduates for trainee solicitor jobs?’ accessible at: https://targetjobs.co.uk/career-sectors/law-solicitors/advice/291203-what-skills-do-law-firms-look-for-when-recruiting-graduates-for-trainee thanaraj, a. (2016) ‘understanding how a law clinic can contribute towards students' development of professional responsibility’, international journal of clinical legal education, 23:4, 89-135. thomas, l. (2018, forthcoming)’’it puts the law they’ve learnt in theory into practice’: exploring employer understandings of clinical legal education’ in thomas, l., vaughan, s., malkani, b. and lynch, t. (eds) reimagining clinical legal education. oxford: hart. thomas, l. (2017) ‘law clinics in england and wales: a regulatory black hole’, the law teacher, 51:4, 469-485. uk commission for employment and skills (2016) uk employer skills survey 2015: summary report. available at: https://www.gov.uk/government/publications/ukces-employer-skills-survey-2015-uk-report universities uk (2016) higher education in england: provisions, skills and graduates. accessible at: http://www.universitiesuk.ac.uk/policy-and-analysis/reports/pages/higher-education-in-england-provision-skills-and-graduates.aspx world economic forum (2016) the future of jobs: employment, skills and workforce strategy for the fourth industrial revolution. geneva: world economic forum. accessible at: https://www.weforum.org/reports/the-future-of-jobs yackee, j.w. (2015) ‘does experiential learning improve jd employment outcomes?’, wisconsin law review, 601-626. yorke, m. (2006) employability in higher education: what it is – what it is not. york: higher education academy. accessible at: https://www.heacademy.ac.uk/.../id116_employability_in_higher_education_336.pdf 45 book review reasons to doubt: wrongful convictions and the criminal cases review commission by carolyn hoyle, and mai sato (oxford university press), 2019, 383pp, £75.00 (hardback), isbn: 978-0-19-879457-8 paul dargue lecturer in law, northumbria university, uk[footnoteref:1] [1: dr paul dargue is a lecturer in the school of law, northumbria university] in this book the authors explore their extensive, multi-year, empirical analysis of the criminal cases review commission (ccrc). the authors obtained unrivalled access to the ccrc in the course of their study; the result is a complex and rich analysis of the inner-workings of the organisation. the ccrc, a non-governmental organisation funded by the ministry of justice, has the power to investigate alleged miscarriages of justice (following an application by the convicted person) and to refer cases to the court of appeal (criminal division) for an appeal hearing. this book, by far the most detailed examination of the ccrc, will be valuable for those engaged in the field of miscarriages of justice or the criminal justice system more broadly. the book’s theoretical framework draws heavily upon keith hawkins’s naturalistic approach, adopted in his book law as a last resort (2002). it also draws upon, though to a much lesser degree, chun wei choo’s concept of a ‘knowing organisation’ (p. 47). hawkins suggested that discretionary decision-making is a product of the connection between the ‘surround’, decision ‘field’, and the decision ‘frame’ of the organisation. the surround refers to the social, economic, and political environment in which the organisation operates (p. 39). the surround is not static, but shifts according to wider social and political changes (p. 316). the decision field (which is inevitably influenced by the surround) means the setting in which decisions are made – this is principally the law, policies, and guidance notes issued by the ccrc to its staff, as well as informal ‘working rules’ and assumptions (p. 40). the decision frame means the structures of knowledge and values that staff members at the ccrc use under the influence of the surround and field (p. 41). reasons to doubt accesses ccrc staff’s decision frames by unique access to case files and case records, which show what information was considered and rejected during the investigation. the book is consistent in applying this framework to the analysis of the ccrc’s decision-making, and this is to good effect to develop a deep sociological understanding of the ccrc. the book is divided into 14 chapters. it is quite a long read, and has the benefit of a full bibliography at the end. the first three chapters contextualise the study by explaining the perceived problems with the ccrc and the concern with miscarriages of justice. the book’s methodology and theoretical framework are discussed in chapters 2 and 3. the reader is not aided by the book’s structure being somewhat confused, and at times a little repetitive (i found most of chapter 5 was scattered elsewhere throughout the book, for example). a clearer explanation of the law governing criminal appeals would have assisted. there is little sustained explanation of the unsafety test until chapter nine, and then only a few pages (see pp. 175 – 9). the authors state expressly this was not a study of the court of appeal, but anyone new to the field will be left wondering what the test means; and the book’s index does not point to any definition of the test. chapters 4 through 6 describe the stages of decision-making from receipt of an application to the decision of whether to refer to the court of appeal or not. there is a wealth of observational data here. these are valuable chapters; it is crucial that those working with, or making applications to, the ccrc understand its processes. commissioners and staff at the ccrc exercise considerable discretion (p. 62). the presence of discretion should not be at all surprising for a body tasked with complex decision-making, but it is important that applications to the ccrc are drafted with this in mind. any application must convince a living and breathing individual (or individuals) of its merits given the unique facts and circumstances of the case. ‘i am innocent’ will rarely suffice in this regard. chapters 7 through 10 consider the ccrc’s decision-making in particular kinds of applications. chapter 7 deals with applications which turn on forensic science and expert evidence. changes in how forensic evidence is understood have influenced the ccrc’s surround, field, and frame. new (understandings of) forensic evidence or expert testimony will only rarely obliterate the foundations of the conviction. it may undermine it to a greater or lesser degree, but the application will also need to provide a ‘plausible alternative account for other incuplatory non-forensic evidence’ (p. 131). the ccrc will rarely refer, and the court of appeal rarely quash, just because of some change to forensic evidence; a good ccrc application will need to demonstrate how all the core planks of the prosecution case are undermined. chapters 8, 9, and 10 consider in turn appeals concerning sexual offences; allegations of police misconduct; and claims of inadequate defence. there was a change in ccrc policy in 2017 in relation to routine complainant ‘credibility checks’ (such as checking social services records) which were conducted between 2006 and 2017 in sexual offence cases. the ccrc became keenly aware that they were somewhat ‘swimming against the tide’, being an organisation concerned with convicted people rather than complainants, when the surround adopted a more victim-focussed approach. the change in policy made credibility checks a possible avenue of investigation rather than a routine one (p. 173). the authors are right to caution the ccrc against a restrictive application of credibility checks. it may close off another potential avenue for correcting / investigating wrongful convictions. those submitting applications to the ccrc will need to be careful to ensure that valid reasons are provided for complainant credibility checks. chapters 11, 12, and 13 turn to the work of the ccrc within the broader criminal justice system context. the authors note that the ccrc’s work is heavily dependent on other bodies, in particular the police and the court of appeal (p. 231). chapter 12 considers one of the organisational aims of the ccrc: ‘to investigate cases as quickly as possible with thoroughness and care’. while this is a noble enough aim, it is easy to see its flaws. can the two components of that aim: efficiency and thoroughness, co-exist? a more managerial structure within the ccrc sought to emphasise the efficiently component of the aim and facilitated a move away from a ‘meandering’ investigation. perhaps the most successful ccrc applications will, in the future, be those which guide the ccrc in the most efficient way through an investigation. the book concludes with chapter 14. they refer to the ccrc as being the ‘last chance for justice’, but note a number of crises in the current criminal justice system (cuts to legal aid, the issue of police non-disclosure, declining trust in forensic science, and so on). the book shows us that believing that the jury made the wrong decision does not get the ccrc, or indeed the applicant or their advisors, very far. the ccrc can only refer if they think there is a realistic prospect that the court of appeal will quash the conviction. the court of appeal will only usually quash if it thinks the jury might not have convicted due to some new information or evidence. it is a guessing game, constrained by the ccrc’s and the court of appeal’s organisational priorities. this is an important book in a number of respects. in terms of thoroughness of analysis of the subject, it is hard to find a rival. the authors remain reasonably objective throughout in their analysis. this book is recommended reading for those primarily concerned with criminal appeals and miscarriages of justice. it is important to understand what appears to be the core message of the book. the ccrc does not claim to be the perfect solution to the problem of miscarriages of justice. it is, after all, staffed by people who have to reach decisions. if, after reading this book, those who make applications to the ccrc are able to make better applications, to facilitate that efficient yet thorough review of the case, and then hopefully correct more miscarriages of justice, then the book must be considered a resounding success. 260 special issue: adrian evans festschrift welcome and opening remarks hello everyone and thank you for joining us today. my name is kate seear. i am an associate professor in the faculty of law at monash, and the academic director of springvale monash legal service. i would like to begin, as is customary, by acknowledging the traditional owners of the land on which we meet today – the wurundjeri people of the kulin nations – and to acknowledge elders past, present and emerging. i also take this opportunity to acknowledge that when these lands were invaded, aboriginal and torres strait islanders never ceded sovereignty and that they remain strong in their enduring connection to land and culture. i’d like to welcome you all here today to this very special event – a festschrift – in honour of the retirement our colleague, professor adrian evans. welcome to adrian, to his partner maria, and his family, to colleagues and friends. let’s begin by addressing the elephant in the room. i know many of you want to know this, because you’ve all been emailing me. what actually is a festshcrift? given how many of you were unsure about it, i’m surprised to see you all here. adrian himself feared that it was a ‘roast’. we told him it wasn’t, of course, in a bid to convince him to come along. rest assured, there will be some jokes about adrian’s propensity for hugging and calling us all ‘brother’ later in the day, and the uncanny resemblance between adrian and ned flanders. the word festschrift comes from the german. like all good academics, i turned to wikipedia for a definition. it’s traditionally defined as: a book of letters or a panel honoring a respected person, especially an academic, and presented during their lifetime. it generally takes the form of an edited volume, containing contributions from the honoree's colleagues, former pupils, and friends. today, our festschrift for adrian takes the form of a panel, where we will hear from colleagues and family members about the contributions adrian has made, over many years, to clinical legal education and legal ethics, social justice and promoting access to justice, for vulnerable and marginalised members of our community. we have a star-studded line up. the format is as follows: in the first half of the event we will hear from professors maryanne noone, nigel duncan, peter joy and jeff giddings, and from carolyn worth am, about adrian’s life work. at about 2:45, we will break for afternoon tea, giving you all an opportunity to mingle and pass on your best wishes to adrian, if you have not done so already. we will then return for the final hour, where the mood will lift a little. we have a couple of surprises to come, including some more light-hearted reflections on adrian’s life and work, before we will hear from adrian himself. the dean of the law faculty, professor bryan horrigan, will close proceedings at 4pm. now i should say before going any further that adrian threw a spanner into the works just before we commenced, telling me that he didn’t like ‘the “r” word’ – retirement – because it sounds too final. and so i’ve done some quick research to find some synonyms we might use as an alternative. they include: resignation, fallback, abandonment, withdrawal, surrender, desertion, goodbye, departure, retreat and demise. somehow i am not sure any of these will suit, either! and so i was thinking about the recent announcement by actress gwyneth paltrow and musician chris martin that their marriage was coming to an end. rather than announcing their ‘divorce’, they announced that they were going through a period of ‘conscious uncoupling’. as i understand it, ‘conscious uncoupling’ signals a mutually respectful decision to go your separate ways, while not losing contact altogether. and i think this is the spirit in which we meet today: to celebrate adrian’s ‘conscious uncoupling’ from monash and from academia, with the recognition that we will still be able to retain a connection to him, and him to us. we are going to hear a lot about adrian’s career over the next three hours, but let’s start with a brief refresher. adrian completed a double degree in law and commerce at the university of melbourne in 1972 and was admitted to the supreme court of victoria on the 1st of march 1974. in 1976, he completed a diploma in theology which was awarded by the australian college of theology, the forerunner to the university of divinity. he completed his masters thesis at monash university in 1997 and his phd in 2008. adrian has held numerous roles across the years, including: working at price waterhouse coopers in 1975, as a legal advisor to students at the monash union in 1976, as a solicitor in the latrobe students representative council from 1976 to 1987, and as coordinator of clinical legal education in the department of legal studies at latrobe university from 1977 to 1985. he was the coordinator of the springvale legal service (as it was then known) from 1988 – 2000, holding the roles of lecturer, senior lecturer, associate professor and eventually full professor at monash university from 1988 until today. adrian has won teaching awards and numerous grants, published 15 books (edited and authored) and numerous reports and articles on clinical legal education, legal ethics, virtue ethics and therapeutic jurisprudence, gender and ethics, lawyering and faith. of course, you can’t get a true sense of who a person is by reciting their cv, even though adrian’s cv is incredible. so i’d like to say a few words about who i think adrian is. i came to know adrian in the late 1990s, when he taught me lawyers’ ethics at monash. adrian had the dubious honour of leading a subject that pretty much every law student regarded as unbearably dull, given its focus on truly scintillating topics such as the trust account rules and lawyers’ duties (to which i can only say: the students had a point). alongside this, adrian talked to us about lofty notions like justice, fairness, values and the common good. adrian was, as i recall it, the first and only lecturer i’d ever had who talked to us about what kind of lawyer we wanted to be, how we could live an ethical life as a lawyer, what kind of impact we wanted to make in the world, and the importance of access to justice for society’s underprivileged. adrian’s profound musings about aristotelian ethics, virtue ethics and the age-old question of what it means to truly ‘‘do good’ were met with other age-old questions from his students such as: is this rubbish going to be on the exam and what answer will give me the most marks for the least effort? but i was inspired – both because adrian spoke of things that really mattered, and which had somehow disappeared from the curriculum of most other subjects, and because i was a bit of a dork. but adrian embraced that and encouraged me. he was one of those lecturers who would stop and talk to you across the campus, ask how you were, and take an interest in what you cared about. he gave you life advice and career guidance – sometimes unsolicited, but always well meaning. after i worked for a few years in private practice and community legal centres i was unsure what i wanted to do. adrian gave me my first ever opportunity in academia, hiring me to do research assistant work on an ethics project that was a response to british american tobacco v rola mccabe – the case that raised questions about the links between lawyers and big tobacco. adrian had a strong sense of right and wrong and those values were ones i had not always seen in practice. in this work, he made me and many others like me feel like there was a space for us in legal practice or academia, especially when we didn’t want to take the well-trodden path of doing a corporate clerkship, articles at a big city firm, and racking up billable hours. i could not have known then that adrian would eventually become my boss at monash. like many others, i have benefitted enormously from adrian’s care, guidance and sensitivity. adrian listens to, and cares about, people. he thinks carefully about the impact his words will have on you before he speaks. he is deeply empathetic. he has helped me deal with a myriad of challenges, including complex ethical dilemmas, student issues, workplace politics, and more. adrian has also been an unbelievable support through personal challenges over the last couple of years, and i am extremely grateful to him for that. i know that i am not alone, either. it’s actually the main reason why we have all come together to acknowledge him today. in preparing for today’s event, i asked a number of colleagues – present and past – to say something about what adrian had meant to them over the years. when i reflected on them all, it turned out that they formed a neat little poem. so here is a poem in honour of adrian. it is called adrian is. adrian is… adrian is… the most amazing and awesome person. he is a man of integrity, encouraging and supportive with charm and wit; with a laugh that you can hear from afar and you know that all is good because adrian is around! i count it as a privilege to have worked with adrian over many years and know he is a friend. adrian is… the most cited clinician in a phd thesis. adrian is… the only colleague who has suggested a mid day siesta could be beneficial!  “just lie down on the floor”. adrian is… someone who – when a small thunderstorm rolled in from wa – was most welcoming, and provided generous encouragement & support. adrian is… an insightful man. adrian is… fond of outdoor wear and puffy vests. any time. any where. adrian is… someone who exemplifies the four approaches to legal practice: a zealous advocate for high ethical standards; a trustee of the legal system; an agent for change to improve justice outcomes, and a lawyer who cares deeply about relationships with family, friends, colleagues and clients. adrian is… someone who makes me feel like he’s always got time for me and that he has no other pressing business. and adrian has been my supervisor, mentor, colleague, ethical compass and friend over many, many years even though he deserves his retirement, i am going to feel quite lost without him. i want to thank you all again for coming today. 9 ethical practice and clinical legal education nigel duncan* introduction this article is designed to explore a variety of ways in which clinical methods can achieve the goals of educators and the professions in the preparation of student lawyers. in particular i intend to show how clinical methods assist in the development of: • a deeper understanding of the law, and the law in context; • general transferable skills; • legal professional skills; • a sound values basis for ethical practice.1 in addition, i hope to show that there are ways of using clinical methods which may also assist us to meet other social concerns such as the extension of legal services and individual knowledge of rights, throughout the community. this article is based on the uk system of legal education, whereby a degree, usually of three years, is followed by a one-year vocational course (the legal practice course for solicitors and the bar vocational course for barristers) then an apprenticeship of two years’ training contract for solicitors or one-year pupillage for barristers.2 however, some of the examples i will draw on relate to differently structured legal education systems such as that in the usa and i believe that my remarks are of general application. in order to provide concrete examples to illustrate my arguments i have drawn extensively on the course of which i have most experience: the bar vocational course at my own institution, the inns of court school of law (icsl). ethical practice and clinical legal education 7 * principal lecturer, inns of court school of law, city university; editor, the law teacher; national teaching fellow; founder-member: clinical legal education organisation, global alliance for justice education. 1 these are among the central qualities sought in legal education by the lord chancellor’s advisory committee on legal education and conduct: aclec 1996: first report on legal education and training (stationery office, london). pp. 24–5. 2 for an explanation of the current system of professional legal education in england and wales, see duncan, n.: gatekeepers training hurdlers: the training and accreditation of lawyers in england and wales, 20, georgia state u. l. r., 4, p. 911. change may be imminent. the law society is currently conducting a training framework review. the current state of consultation suggests a relaxation of specific requirements for courses, provided individuals can demonstrate that they have achieved the ‘day 1 outcomes’. this is highly controversial and it is premature to predict what will emerge from the consultation process. however, it is worth noting that the importance of addressing ethical issues is recognised and that clinical methods appear to be highly regarded. other providers may have differently structured courses, but all are validated by the bar council, and are expected to meet the same standards. the degree to which clinical methods are adopted varies, but (as defined below) is, to some extent, a feature of all the courses. clinical methods in professional legal education the concept of ‘clinical’ methods is derived from medical training where doctors learn by practising first on simulated and later real patients. i define clinical methods of learning as those which require students to learn by undertaking the tasks that lawyers undertake in such a way that they have an opportunity to reflect on the law with which they work, the circumstances and relationships they encounter in that work and the development of their own skills and understanding. this may be done through simulated exercises, through taking on responsibility for real clients in the law school setting or through working with lawyers, judges or others providing advice or representation.3 to ensure that using these methods goes beyond mere skill development is a demanding requirement to which most providers of professional courses aspire, but are still working towards. on the bar vocational course students learn three adjectival law subjects: evidence, civil litigation and criminal litigation and six skills: case preparation (incorporating legal research and fact management), advocacy, conference skills, negotiation, opinion writing and drafting. they also study two options. professional conduct is taught both in discrete classes and integrated as a pervasive topic into the other learning programmes. in describing the use of clinical methods i will be concentrating mostly on the skills development and option courses. within the skills development programme i shall concentrate on conference skills as a model of how we use these techniques. students are given a manual4 which is a guide to the development of effective client conference skills. they have three introductory large group sessions which illustrate the underlying principles. they also give students an opportunity to discover for themselves how difficult it can be to prepare for and conduct an effective conference by conducting a client conference in these large group classes. these also provide students with video demonstrations of conferences which they are able to discuss and criticise, informed by their experience of attempting a conference on the same case papers. this barely qualifies as clinical work, although it is certainly interactive. the tutorial programme which follows these involves simulated clinical techniques. students work with realistic bundles of papers just as if they were being instructed by a solicitor. they are given opportunities to discuss how they have prepared for the conference, and then to carry it out, with fellow-students taking the role of client. after an opportunity for feedback the students who have played client then carry out a conference as counsel. reinforcement of learning is approached by requiring students to keep a professional development file in which there are pro-forma sheets encouraging them to reflect upon their performance at these tasks. thus their learning engages the process of kolb’s learning cycle5 to ensure that they undergo a process of reflection upon their developing skills and understanding, which should inform their subsequent planning and preparation for their next client conference. 8 journal of clinical legal education august 2005 3 the different approaches to clinical legal education are presented in brayne, h., duncan, n. & grimes, r. 1998: clinical legal education: active learning in your law school, (blackstone press, london). 4 samwell-smith, r., (ed) 2004: conference skills, (oup, oxford). 5 kolb, d (1984) experiential learning: experience as the source of learning and development (englewood cliffs, nj: prentice hall). all colleagues managing an over-full curriculum will recognise that opportunities for reflection in classes are few and far between. students have a series of such simulations, progressive in difficulty and in the issues covered. it is worth observing that they also go through similar programmes in the other skills, which tend to reinforce each other as there are many underlying skills (research, analytical, language and communication) which are in varying degrees common to all these skills. this, with appropriate adaptations to meet (for example) the requirements of the written skills, is the basis for the learning of all the skills and the options. one option, however, is approached differently. this is the free representation unit option in which students learn by representing real clients in the employment tribunals. the rationale behind this course is fully presented elsewhere.6 the free representation unit (fru) is supported by the bar and provides tribunal representation for impecunious clients whose claims did not attract legal aid. many of our students undertake cases for fru on a voluntary basis while they are studying and it is always a valuable experience. the fru option, however, requires students to write a reflective journal while they go through fru’s training and assessment, which they must pass before they undertake their own cases. they may then choose one of those cases to present for formal assessment. they are assessed on their reflective journal as well as their actions representing their client. these journals usually show how they have reflected upon the ethical dilemmas they encounter. this is an example of realclient clinical education.7 reflective practice the concept of reflection is fundamental to the clinical approaches presented here. it is designed to entrench learning from experience. as gary blasi has observed, we all know people who appear to have repeated the same 20 years experience while learning very little. others appear to have learnt something new from each of their 20 years experience. the difference, blasi argues, is reflecting on experience.8 this is a crucial element of david kolb’s learning cycle (which through further progressive iterations becomes a learning spiral) and was developed in respect of professional practice by donald schön.9 there are many ways of encouraging students to engage in reflective practice. opportunities to reflect on simulated clinical experience can be provided through a structured professional development plan.10 these take many forms. i have already mentioned the professional development file used at icsl which encourages students to engage in a kolbian learning spiral. this is designed to assist students to approach further iterations of a particular type of activity (eg a client conference) having thought hard, on the basis of experience and feedback, about how best to build on their strengths and to overcome perceived weaknesses. ethical practice and clinical legal education 9 6 duncan, n. 1997: “on your feet in the industrial tribunal: a live clinical course for a referral profession”, in 14 journal of professional legal education, p.169. 7 this is often described as a live-client clinic in the american literature. 8 blasi, g. (1995) “what lawyers know: lawyering expertise, cognitive science and the functions of theory” 45, j legal educ. 313, at p. 387. 9 schön, d. 1987: educating the reflective practitioner, (jossey-bass, san francisco). 10 the uk centre for legal education website provides information about personal development planning in law: see http://www.ukcle.ac.uk/resources/pdp.html and prince, s. 2002: personal development planning and law, http://www.ukcle.ac.uk/resources/prince.html. all website references accessed may 2005. real client experiences provide opportunities for different types of reflection. where students take on real cases in ‘firms’ or tutorial groups, the tutor will facilitate sessions where students discuss their work and critique what they have been doing. this can both improve the continuing work on behalf of the client and help students to understand the qualities of their work to date and what to do to improve those areas which are less developed. another common approach to using reflection on real client work is to help to contextualise and add a critical perspective to more conventional studies which have already taken place, or which run alongside the clinical experience. thus laura lundy11 describes how her students’ work in advice centres led them to reflect on what they had learnt on a welfare law module. this enabled a more effective academic understanding of those rules themselves by providing experience of how they work in practice, and also, at a meta-level, of the very capacity of rules to provide solutions. ‘reflective practice’ has acquired iconic status amongst educationalists. there is, however, limited empirical evidence of its effectiveness. the theoretical justifications are impressive12 and the common-sense approach: ‘how can it be other than good to get students thinking hard about their own experience as opposed to simply blundering into another experience’ may convince many. empirical evidence is inherently hard to come by. it would be unethical to impose on students a method the teacher considered to be inferior. it is, of course, possible to do year-on-year comparisons with past cohorts having introduced a reflective method. however, here the other variables are enormous and virtually impossible to control for.13 the benefits of using clinical methods using clinical methods can produce considerable and diverse benefits.14 the individual skills students have been developing tend to fall into place when they have the responsibility of undertaking a real case. the need for effective fact management and legal research becomes frighteningly obvious as the date of their hearing approaches. perceiving how real people are affected by the court system can provide profound insights. as one of my students has commented in her reflection on the experience: ‘it has helped me to understand civil procedure in context, fact management, conference and negotiation skills in reality and the power we possess over people’s lives’. the different approaches to clinic have their own advantages and disadvantages. using simulations15 enables a considerable degree of control over each student’s experience and enables 10 journal of clinical legal education august 2005 11 lundy, l.: “the assessment of clinical legal education: an illustration”, (1995) 29 law teacher p. 311. 12 kolb and schön, above. 13 guidance on using reflective methods in the context of legal education is available in hinett, k. developing reflective practice in legal education, 2003. http://www.ukcle.ac.uk/resources/reflection/index.html. 14 this would not be agreed by all. there are many criticisms of using clinical techniques. they include the view that it is anti-intellectual and only concerned with skill development; that it is an inefficient use of scarce faculty resources; that it limits the control over syllabus content available with more didactic methods. there is no doubt that it can be resource-intensive (but see text below for methods of sharing resources with those responsible for providing legal services). however, any programme concerned narrowly with skill development fails to achieve the potential benefits of clinic. the concern for syllabus-coverage must be challenged, given the short shelf-life of much legal knowledge. what is more valuable is the understanding of legal concepts made concrete through the application of rules to real (or realistic) cases, and the ability to analyse fact patterns and undertake the necessary legal research to enable knowledge and understanding of the changing law. clinic can achieve this. 15 the use of simulations is developed in burridge, r.: role play and simulation in the clinic, in brayne, duncan & grimes, op cit, p. 173. the course designer to ensure a progressive experience over a period of time. students share their experiences and are thus able to reflect collectively on what they have worked through, providing each other with feedback on their performances and thus developing their ability to use each other as a learning resource. simulations can be designed so that individuals work alone or in groups. they enable teachers to present situations from the perspectives of different parties to the issue.16 it is almost impossible for students to avoid some active engagement with their studies where these techniques are adopted. finally, students usually enjoy their learning and this makes the results of that learning more likely to stick. however enjoyable and valuable a course based on simulations may be, however, it has its limitations. my students on the bvc report that after several months they become accustomed to interviewing each other, to negotiating with each other and to attempting advocacy in each other’s presence. what had been exciting and new becomes ordinary. we can respond in some ways to this within the concept of simulations. when they start working on their options we change their groups, so that they are working with relative strangers. we also provide them with opportunities (on a voluntary basis) to advise real clients in our in-house advice clinics or by working with one of our pro bono partners.17 these initiatives help, but ultimately the students know that in the classroom they are just working through exercises. they know that if it goes wrong it does not really matter (until it comes to their summative assessments). this is where working with real clients comes in. on the fru option my students represent clients with complaints of discrimination and unfair dismissal. these clients are generally poor and often unemployed. their claim is of central importance to them, and if the student was not aware of that before taking on the case they are as soon as they have had their first client conference. the motivating effect of taking on a real case is wonderful to see. i have seen students whose application in classes was poor putting vast amounts of work into preparing for their tribunal case, and every hour of work provides an hour with learning potential. the quality of the learning in a real situation is also different. representing a real client, faced with real opponents, advocating in real tribunals, students know that they are learning about the realities of practice. the care with which they prepare their case and the requirement to reflect upon the process usually produce a deeper learning.18 work with simulations is, of course a valuable preparation for taking on real cases and i would not recommend that students take on the sole responsibility for a client’s case until late in their legal education process. however, successful examples of real client work at the undergraduate stage19 give individual students much more support. for a start they work in teams (often described as ethical practice and clinical legal education 11 16 the way this is used in vocationally-oriented courses in the netherlands is presented in reijntjes, j. & valcke, m. 1998: “implications of electronic developments for distance and face to face learning” 32 law teacher 245. for a more recent presentation of related approaches in scotland and the netherlands see maharg, p. and muntjiewerff, a. 2002: “through a screen darkly: electronic legal education in europe”, 36 law teacher, 307 at p. 320. 17 for details of these programmes see http://www.city.ac.uk/icsl/current_students/pro_bono/ index.html. 18 by ‘deep’ learning i mean that which involves the student in linking old and new knowledge to personal experience and distinguishes evidence and argument. by contrast ‘surface’ learning refers to an unreflective, externally-driven focus on words and sentences. in a deep approach, students seek to understand; in a surface approach they seek only to reproduce. lebrun, m., & johnstone, r., 1994: the quiet (r)evolution: improving student learning in law, (law book company, sydney) pp. 59–61. 19 for a detailed discussion see brayne, duncan & grimes op cit, ch. 3. firms) and their work is subject to the supervision of a tutor who is normally also a solicitor. thus they assist each other with the actual tasks of advising and representation, their work is checked before it goes out, and they have regular team meetings which provide the basis for learning from each others’ reflection on their work and their developing understanding.20 i have so far addressed clinical experience for students on undergraduate or vocational courses. in the united kingdom all lawyers pass through an apprenticeship after their vocational course: a training contract in the case of solicitors and a pupillage in the case of barristers. at this point they naturally come into contact with real cases and may be given considerable responsibility for them. well supervised, this can be valuable clinical legal education. why then not wait until that stage to introduce this experience? in my view this can partly be answered by the way in which clinical experience can inform every other learning experience in both undergraduate and vocational courses. it makes sense of what might be abstruse. it makes concrete what might remain abstract. it should therefore form part of that experience, not follow it. however, there is another reason why i believe that clinical work should form part of the law school experience, but i will leave that until i have introduced my next proposal. using clinical methods to develop professional values in many countries the legal profession is perceived as being in an ethical crisis. in the united states lawyers are often perceived to be highly unethical in their practice, particularly as that practice moves from a professional to a business orientation.21 this public perception is all the more galling for the majority who take matters of professional conduct seriously. recent changes in the uk, such as the introduction of conditional fee agreements,22 raise new prospects for conflicts of interest and new pressures for unethical behaviour which will face our trainees as they enter the profession. the responsibility for addressing this lies with both established practitioners and legal educators.23 courses in professional responsibility are a required element of the jd in the usa. however, they are widely criticised, in many cases because they attempt little more than rote-learning of the codes of conduct and the commentaries that have been developed to flesh out the codes.24 12 journal of clinical legal education august 2005 20 for a discussion of how these programmes can inform an understanding of the ethical aspects of legal practice, see kerrigan, k. & hall, j. 2003: broadening the ethical horizon – why and how law clinics can help create reflective lawyers, paper at alt conference, maastricht, april 2003. 21 kronman a. t. 1993: the lost lawyer: failing ideas of the legal profession (the belknap press of harvard university press, cambridge). 22 agreements whereby the lawyer receives no fee unless the outcome of the litigation is a success, in which case a standard fee plus an uplift based on the likelihood of success is payable. 23 the responsibility of legal education was recognised in the uk by aclec, who included ‘legal values’ amongst what legal education should achieve and defined these as: ‘... a commitment to the rule of law, to justice, fairness and high ethical standards, to acquiring and improving professional skills, to representing clients without fear or favour, to promoting equality of opportunity, and to ensuring that adequate legal services are provided to those who cannot afford to pay for them. these values are acquired not only throughout the legal educational process but also over time through socialisation within the legal professions.’ (emphasis in the original) aclec op cit, p. 24. 24 pipkin, r.: “law school instruction in professional responsibility: a curricular paradox”, (1979) 2 a.b.f. res. j. 247 and granfield, r.: the politics of decontextualised knowledge: bringing context into ethics instruction in law school, in economides, k., (ed) 1998: ethical challenges to legal education and conduct, (hart, oxford). matters are improving and there are honourable exceptions: columbia,25 georgia state,26 georgetown,27 amongst others. we as legal educators must ensure that our students learn their codes of conduct and practise within them. however, codes are subject to interpretation and can never anticipate every situation which may arise. in terms of formal assessment, it may be that it is only compliance with the codes, rather than an ethical response to an area left grey by the codes, that can be subject to ‘pass/fail’ judgements. but learning does not have to be restricted to what can be formally assessed. we clearly also have a responsibility to do all we can to give our students a solid values-base on which to prepare their responses to the ethical dilemmas which will face them.28 on the bvc at icsl we have a number of methods of addressing ethical issues. we provide students with a manual which contains the bar’s code of conduct, discussion of the broader ethical context and a series of practical problems. this manual29 contains a chapter entitled the letter and spirit of the code.30 this is designed to ensure that students realise that their responsibilities go beyond simple compliance with the code. where the code permits alternative actions or where it is capable of different interpretations students are encouraged to explore the underlying values which inform the code. recognising that there may be conflicts between those values or indeed between the values of the profession and their own personal values helps to situate their responses to ethical dilemmas in richer soil than the code alone can provide. the manual is supported by a series of large and small group classes. practitioners present the issues arising from a number of case studies for discussion with students. in small groups, students role-play realistic situations which have been designed to contain embedded ethical dilemmas, to put their ideas into practice and then have opportunities to discuss and reflect upon their experience. this is an example of simulated clinical work. moreover, throughout the series of simulated activities that students undertake in their skills development programmes ethical problems arise. some of these are inherent (as where a student asks her client leading questions in conference, thus receiving confirmation of her pre-suppositions, rather than getting the client’s actual instructions). others are built into the problem by asking those playing clients to introduce requests that place the student in an ethical dilemma.31 this is a clinical approach because the student is faced actually, not hypothetically, with the situation to be resolved, and after the role-play is completed there is an opportunity to discuss and reflect on the best ways of dealing with such a problem. more profound opportunities to recognise the impact of ethical dilemmas arise in real-client clinical situations. students undertaking the fru option regularly encounter such dilemmas. the requirement of keeping a reflective journal significantly increases the likelihood that they will ethical practice and clinical legal education 13 25 see discussion of the clinical programme at columbia in brayne, duncan and grimes op cit at pp. 220–8. 26 see http://law.gsu.edu/ccunningham/pr/ 27 see http://www.law.georgetown.edu/curriculum/ tab_clusters.cfm?status=cluster&detail=25 28 see duncan, n: responsibility and ethics in professional legal education, in burridge, r., hinett, k., paliwala, a. and varnava, t. (eds) 2002: effective learning and teaching in law, (kogan page, london). 29 stead, k., (ed) 2004: professional conduct, (oup, oxford). 30 by the author of this article. 31 for example, a client accused of an offence of dishonesty may ask counsel whether she would be guilty if a particular event had happened. to answer such a hypothetical question would breach the code of conduct as it could lead the client to fabricate a defence and thus to mislead the court. learn from such a situation. here is one example of a student encountering an ethical dilemma. in an employment tribunal case where the client had been paid without deduction of tax the student was carrying out a telephone interview with his client using the client’s daughter as a translator. the student (who spoke the client’s language to a fair degree and had informed the client of that fact) overheard the client resisting his wife’s suggestion that he should lie about his understanding of the tax situation. he pre-empted the daughter by indicating that he had heard the conversation. his reflective journal records: ‘in a sense i had averted an embarrassing situation by shooting first and not letting them tell me lies. on the other hand, should i not have waited until they came back to me with an answer (albeit a lie) aimed at me? or would that have been unethical? maybe i was exaggerating my ethical duty and should have just pretended not to hear. but then again maybe they should not have spoken that loudly (i could not not hear)’.32 this student was faced directly with a clash between the values of client autonomy and duty to the court. in a taught situation, students are more likely to respond to ethical dilemmas if permitted to raise them themselves. to do this one can devise a role-play which is value-laden and focus initial discussion on the skills elements. students will usually raise the values dimension and are likely to accept the results of that discussion more as they will feel a greater ownership of the issues.33 however, this goal may be more effectively achieved on the vocational courses if there has been a sound underpinning of ethical debate in students’ undergraduate experience. how might this best be done? julian webb proposes a three-stage approach to meet the normal structure of an english or welsh law degree.34 in the first year a foundation course (such as legal system) would explore as part of its remit the ethics of the english legal system. this lends a values context to the subsequent skillsoriented work. a simulated clinical element would be introduced in the second year in a ‘legal profession and ethics’ course which would combine discussion of professional ethics with a study of the major ethical traditions supported by working through realistic and value-laden simulations. the third stage would be a real client clinical course through which supervisors would facilitate students’ application of their ideas and understanding of ethical issues to the discussions of how to conduct real cases.35 such a programme, particularly if the ethical issues are reinforced by being addressed in a number of different subjects, will provide the ideal basis for students to undertake a more focussed study of professional ethics on their vocational courses. the earlier opportunity to look critically at the 14 journal of clinical legal education august 2005 32 this extract has been published previously in brayne, duncan & grimes op cit, p. 170. 33 koh-peters, j. (ed) 1998: reflections on values for clinical teachers, proceedings of the aals conference on clinical legal education, portland, oregon, 5–9 may 1998, p.2. 34 webb, j.: “inventing the good: a prospectus for clinical education and the teaching of legal ethics in england and wales”, (1996) 30, law teacher p.270. 35 for a critical commentary on this proposal, suggesting how this be improved by integration through simulation into other subjects on the degree programme, see evans, a.: an australian perspective, in brayne, duncan & grimes op cit, pp. 267–74. issues provides a remedy for the tendency in many vocational courses to concentrate on the codes, rather than their underlying values.36 it supports attempts to consider the underlying values and fundamental tenets of the codes. the impact of legal education on students’ values it is inherently difficult to conduct research into the influences on students’ responses to ethical dilemmas. the issues are usually of such complexity that apparently different responses may have related values at their roots. however, there has been substantial research in the united states as to the impact of legal education on students’ attitudes towards the availability of legal services. this is clearly a matter of core professional values and is recognised by aclec as well as by the influential maccrate report.37. the research explores this commitment by assessing students’ intention to undertake public interest work in the future. it consistently suggests that the proportion of students who are committed to including public interest work in their future professional activities declines as they work through their legal education process.38 for example, stover found that while 33% of first year students rated public interest practice as their ideal first job, three years later the proportion had fallen to 16%. these studies also showed a decline in the importance law students paid to doing pro bono or social reform work. by contrast, maresh shows evidence that undertaking a clinical programme with real clients reverses this trend.39 over six years she found a consistent tendency for a higher proportion of students to express an interest in public interest work after taking their clinical course than they had before taking it. it might be objected that the students opting for clinical courses would most probably be those motivated towards public interest work. however, this does not explain the increase as a result of the experience and the percentage of students expressing the interest before their clinical course was as low as 25% in one year.40 ethical practice and clinical legal education 15 36 these approaches are not restricted to the uk legal education system. for an example of integrating simulated work and public service activities in india see madhava menon n. r. & nagaraj v. 1998: development of clinical teaching at the national law school of india: an experiment in imparting value oriented skills training, in madhava menon n. r. (ed) 1998: clinical legal education, (bangalore) , p. 238. 37 maccrate identified four ‘fundamental values of the profession’ each of which generates a ‘special responsibility’. thus the value of competent representation begets responsibility to clients; and (significantly here) the value of striving to promote justice, fairness and morality begets public responsibility for the legal system: maccrate r. 1992: legal education and professional development – an educational continuum: narrowing the gap, (chicago: american bar association). 38 kubey, c., 1976: “three years of adjustment: where do your ideals go?” (1976) juris doctor, december, p. 34; erlanger, h. & klegon, d. 1978: “socialisation effects of professional school: the law school experience and student orientation to public interest”, vol. 13 law and society review, , p. 1; stover, r. & erlanger, h., 1989: making it and breaking it: the fate of public interest commitment during law school, (university of illinois press, urbana and chicago); erlanger, h., epp, c., cahill, m., & haines, k 1996: “law student idealism and job choice: some new data on an old question”, (1978) 30:4 law and society review, p. 851; stone, a: women, law school and student commitment to the public interest, in cooper j. & trubek, l. 1997: educating for justice: social values and legal education, (ashgate, aldershot) p. 56. 39 maresh, s., 1997: the impact of clinical legal education on the decisions of law students to practice public interest law, in cooper j. & trubek, l. 1997: educating for justice: social values and legal education, (ashgate, aldershot), p. 154. 40 it is true that other studies have shown that students take clinical courses to gain practical experience rather than because of their desire to practise in a particular area: abel, r: evaluating evaluations: how should law schools judge teaching? (1990) 40 journal of legal education, p. 407. this, however, does not undermine the significance of maresh’s findings. this suggests that in respect of one major value of the legal profession, not only does conventional legal education tend to undermine that value, but that the process is reversed by students undertaking clinical work which brings them into contact with real clients. i do not, of course, extrapolate from this that those who are not concerned with the availability of legal services will necessarily act unethically in other aspects of their practice. however, i would suggest that those with a concern for some of the profession’s core values are likely to be willing to consider other core values seriously. what is more, those dealing with real cases within their educational experience will perforce have come into contact with the ethical issues that are endemic in legal practice and will not have been able to evade them. they will have been under a duty to take decisions and actions. furthermore, their experience will have addressed ethical issues in a way hard to achieve without clinical experience. surveys in the usa have shown that ethics courses (compulsory since the watergate debacle) are perceived as inferior.41 in a study by granfield: ‘only three out of forty respondents characterized their ethics course as valuable preparation for legal practice. the vast majority reported that their ethics course merely provided them with formalistic instruction about the rules of professional responsibility that were largely silent on the fundamental contradictions inherent in their practice’.42 it is the experience of real clients in all the messy complexity of real cases that overcomes this problem.43 why not leave this to the apprenticeship stage? i have already suggested above that clinical experience increases the value of other educational experience with which it is integrated. there is a further reason why it is important that it not be left until the vocational course is finished. this is a point which must be expressed with some care, as it risks offending the majority of lawyers who strive to maintain high ethical standards in their practice. it requires two assertions which i shall draw from the work of others. the first is that: ‘... it is workplace experiences that have the greatest impact on shaping professional behavior. ethical education may be eclipsed if law students encounter workplaces that are unsympathetic to ethical practice’.44 the second is that: ‘... for those students whose first significant work place experience is a ‘live client’ clinical programme, better values, social awareness and motivations are inculcated because students are under the control of legal educators rather than ‘the market’’.45 16 journal of clinical legal education august 2005 41 pipkin, op cit. 42 granfield, r: the politics of decontextualised knowledge: bringing context into ethics instruction in law school, in economides, op cit at p. 308. 43 this is reminiscent of donald schön’s swamp (schön op cit) and the difficulty of recognising the problems of living in the swamp if you stay on the academic high ground. 44 myers, e.w: “simple truths’ about moral education” (1996) 45 am.u.l. 823 at p. 824. 45 evans, a: “the values priority in quality legal education : developing a values/skills link through clinical experience” (1998) 32. law teacher 274 at p. 284. this is not intended to be a criticism of all practitioners. practitioners reading this journal are clearly concerned for the quality of legal education and will be taking care to ensure that their trainees would be given appropriate instruction in ethical practice. however, this cannot be true of every lawyer who accepts the responsibility for a trainee. the realities of practice will properly expose trainees to the market and the adversarial nature of litigation. as auerbach has observed: ‘litigation expresses a chilling hobbesian view of human nature. it accentuates hostility, not trust. selfishness supplants generosity. truth is shaded by dissembling. once an adversarial framework is in place, it supports competitive aggression to the exclusion of reciprocity and empathy’.46 these are the pressures which can lead to conflicts of interest or other ethical difficulties. evans does not argue that students should be protected from those pressures, rather that they should first experience them in an environment in which it is possible to explore the problems in principle. for these reasons, students should be exposed to realistic (or ideally, real) problem situations in the context of their academic and vocational courses, in order to provide them with a sound foundation in values which will strengthen their ability to deal with the vicissitudes of practice. meeting our social responsibilities one of the founding characteristics of the codes of professional ethics is the responsibility to promote justice and accessibility of legal services. currently most governments are seeking ways to reduce spending on the public funding of litigation. this raises questions as to how any ensuing gaps in provision might be filled.47 law schools, whether dealing with the academic or vocational stages of legal education, which develop real client clinical programmes may provide a valuable social service to those clients. this may include the provision of legal advice, full representation in appropriate circumstances, or it could include working with community or interest groups to address perceived injustices or to empower community groups to recognise and meet their own needs. this could be addressed by law schools setting up their own student law clinics,48 working with other agencies such as (in the uk) citizens’ advice bureaux, law centres and advice centres,49 or working in a community legal education programme.50 there has been considerable development of these programmes in recent years, often under the title ‘street law’.51 the burgeoning scope for work of this kind in the uk is presented in brayne and grimes.52 those interested in the international development of different projects involving law students learning ethical practice and clinical legal education 17 46 auerbach, j. 1983: justice without law? (oxford, 1983) at vii. 47 i do not argue that we should simply accept that government minimise or abandon its responsibility for the provision of proper legal services to those who cannot afford it. however, when faced with clients with an unmet legal need it is incumbent upon us to consider how to contribute to meeting that need while maintaining a principled pressure on government. 48 for practical guidance see brayne, duncan & grimes, op cit ch. 3. 49 ibid. ch. 4. see also kibble, n.: “reflection and supervision in clinical legal education: do work placements have a role in undergraduate legal education?” (1998) 5 int. j. legal profession 83. 50 see jones, p. 1997: the growing need for community legal education, in cooper & trubek, op cit, at p. 247 for students to prepare an explanation of a particular legal issue appropriate for a lay audience or readership requires high levels of understanding of that issue as well as communication skills and a sensitivity to the needs of those to whom they are explaining it. 51 for information and guidance see the street law website at: http://www.streetlaw.org/. 52 brayne: law students in the community http://www.ukcle.ac.uk/directions/issue5/brayne.html. grimes, r.: “legal literacy, community empowerment and law schools – some lessons from a working model in the uk” (2003) 37 law teacher 273. through working with individuals or community groups should contact the global alliance for justice education through their website at http://ls.wustl.edu/academics/faculty/activities/ global/. in recent years the uk solicitors’ pro bono group has actively promoted student work in a pro bono capacity, in the hope that this will establish patterns of behaviour which will continue into practice.53 this raises a number of issues. lawyers struggling in publicly-funded areas of practice often take a jaundiced view of lawyers with corporate client experience occasionally offering voluntary work in a field of which they have little current experience. there is the broader issue of whether undertaking pro bono work (whether as a practitioner or a student) undermines attempts to persuade the government to accept what many would regard as their responsibility to fund proper levels of access to legal services. this issue becomes particularly pertinent when recent developments by some uk universities are considered. they have entered agreements with the legal services commission to provide legal services. high standards of supervision and client care are required, but where funding comes from both the lsc and the university there is the potential for conflict between educational and service-delivery interests. tensions can arise over the choice of cases accepted or the period of time over which they are likely to be ‘live’. this is a complex issue which cannot be fully explored here, but which requires careful management if justice is to be done to both students and clients. properly conceived and managed, careful co-operation between the legal education community and the various bodies concerned to provide legal services can produce something of mutual value. the characteristics of clinical educators i will conclude by considering what we need of clinical teachers. it seems to me that there are two essential characteristics. one is that they have a sufficient understanding and practice of educational theory to be able to design and implement experiences for students which will maximise their opportunities for deep learning. the second is that they should have the experience of practice which is necessary for them to act as effective supervisors of their students’ attempts to advise and represent their clients. neither alone is sufficient. it may not always be possible to find individuals who combine both types of experience. where this is the case it is essential that teams are developed which include individuals with each type of expertise. for example, my practice experience is limited. i therefore collaborate on my fru option with one teaching colleague with considerable experience of litigation in the employment tribunals54 and the employment case-worker at fru, whose practice experience in this field is unparalleled. between us we can provide learning opportunities which are real, properly supported, and which build in the opportunities for reflection which ensure a truly educational experience. working collaboratively in this way also provides a good model for the students and i would commend it to anyone. 18 journal of clinical legal education august 2005 53 see http://www.students.probonogroup.org.uk/ 54 over the years these have included a part-time chairman of the employment tribunals, a former trade union official and a former law centre caseworker. conclusion i have argued that the use of clinical methods of legal education (as presented in the concrete examples in this article and through different models developed elsewhere) provides an effective method of meeting a number of our concerns in professional legal education.55 it provides the most powerful experience of the real context in which the law operates; it is the most effective way of developing transferable and specific professional skills and it provides a sound basis for ethical practice. it works most effectively when reinforced with built-in requirements for reflection and approaches to curriculum design which expect students to take some responsibility for their own learning. this experience should precede the training contract or pupillage. in designing courses which meet these objectives we can also help with the provision of legal services to those who cannot afford to pay for them. these proposals have been based on the experience of a number of jurisdictions which have very different legal education structures. how best to implement this approach in different jurisdictions will vary, but experience to date suggests that the effort is eminently worthwhile. ethical practice and clinical legal education 19 55 the question of assessment of students’ clinical work goes beyond the scope of this paper. however, for a discussion of this see brayne, duncan & grimes op cit pp 54–62 and macfarlane, j.: “assessing the reflective practitioner: pedagogic principles and certification needs”, (1998) 5, int. j. legal profession, 63. reviewed article 6 taking clinical legal education online: songs of innocence and experience hugh mcfaul, liz hardie, francine ryan, keren lloyd bright and neil graffin 1 abstract in common with the wider higher education sector, clinical legal education practitioners are facing the challenge of how to adapt their teaching practices to accommodate the restrictions imposed by governmental responses to the covid-19 pandemic. facilitating distance learning via online technologies has unsurprisingly become an area of increasing interest in the hope that it may offer a potential solution to the problem of how to continue teaching undergraduates in a socially distanced environment. this paper seeks to provide clinical legal education practitioners with evidence-based insights into the challenges and opportunities afforded by using digital technologies to deliver clinical legal education. it adopts a case study approach by reflecting on the open justice centre’s four-year experience of experimenting with online technologies to provide meaningful and socially useful legal pro bono projects for students 1 authors are members of the open university law school and can be contact at openjustice@open.ac.uk mailto:open-justice@open.ac.uk mailto:open-justice@open.ac.uk reviewed article 7 studying a credit bearing undergraduate law module. it will analyse how a number of different types of pro bono activity were translated into an online environment, identify common obstacles and posit possible solutions. in doing so, this paper aims to provide a timely contribution to the literature on clinical legal education and offer a means to support colleagues in law schools in the uk and internationally, who are grappling with the challenges presented by taking clinical legal education online. introduction ‘i wish that i knew what i know now, when i was younger.’2 digital technologies have facilitated a rapid growth in opportunities for online learning. this has led to higher education institutions assimilating this technology into their teaching approaches in a variety of ways. some providers have specialised in online learning as the main method of delivery, such as uk based institutions like the open university and arden university. other more traditional providers have embraced these technologies to augment existing provision via lecture capture, virtual learning environments or by using online platforms to make some of their courses available to distance learners. a third group have launched collaborative new ventures to offer free learning via massive open online courses (moocs) which aim to disseminate degree level content to a global audience and create new revenue 2 ‘ooh la la’ ronnie wood, the faces. warner brothers 1973. reviewed article 8 streams in the process. this activity has generated an equivalent growth in academic research into the effectiveness of online methods for delivering higher education programmes, or augmenting programmes delivered in more traditional settings. however, until the shutdown of higher education institutions resulting from the global response to the covid-19 pandemic, the interest in online methods for delivering degree level programmes was something of a niche interest for most educators working in the sector. for the most part, the main method of delivery was still via face to face lectures, seminars and tutorials, and discourse regarding the challenges and opportunities of majority online delivery may have been viewed as a distraction from the core business of teaching and learning. the extent of the impact of social distancing on higher education was illustrated by the much-discussed announcement that an institution as apparently impervious to educational crosswinds as the university of cambridge had committed to delivering all lectures online for the 2020/21 academic year (bbc, 2020) . all of this has put online delivery front and centre in the planning for the coming academic year, as universities try to work out how to provide the best educational experience possible for their students who, in the uk at least, will still be asked to pay tuition fees at pre pandemic rates. this context presents particular challenges for academics working in law schools delivering clinical legal education programmes. these programmes tend to facilitate experiential learning by providing real world, or simulated, professional legal projects which engage members of the public (bloch, 2010; giddings, 2013; maharg, 2016; jones reviewed article 9 et al., 2017). typically this could include a face to face legal advice clinic, internship opportunities with legal advice charities or by delivering legal education workshops in schools, none of which are instantly replicable using online methods. as a result, research into the use of online methods has yet to make a significant impact on clinical legal education as it has, until now, not been a priority for the majority of those who are working in this field. however this has begun to change, as clinical legal education practitioners have started to experiment with online methods, either for institutionally specific reasons, or as a way of engaging with the wider disruptive impact of digital technology on the legal profession, which is already having an impact on the legal marketplace (mcginnis & pearce, 2014). such studies can be arranged into three thematic areas. firstly, those which consider how clinical approaches in general could embrace the opportunities provided by online methods (horrigan, 2019; jones et al., 2017; mccrimmon et al., 2016), secondly, how the traditional legal advice clinic might be transposed to a virtual environment (ryan, 2019; thanaraj and sales, 2015) and thirdly, how bespoke applications of technology, such as smart phone apps, might have particular affordances for supporting or extending existing clinical activity ( mcfaul and fitzgerald, 2019, ryan and mcfaul, 2020). this paper aims to make a timely contribution to this developing literature by providing an evidence-based discussion of the challenges and opportunities afforded by using digital technologies to deliver clinical legal education. it adopts a case study approach by reflecting on the open justice centre’s four-year experience of reviewed article 10 experimenting with online technologies to provide meaningful and socially useful legal pro bono projects for students studying a credit bearing undergraduate law module at a distance. part i will provide an overview of the context in which the online clinical projects were developed. part ii will provide a detailed account by project leads of five of our projects and a discussion of the emerging themes will be provided in part iii. part i: contexts the open justice centre was established in 2016 with the aim of utilising digital technologies to provide opportunities for open university law students to benefit from the experiential learning that participation in pro bono legal activities can provide. the context within which ou law students study precluded the traditional face to face model of clinical legal education. with over 7,000 students, the ou law school is the largest provider of open access undergraduate legal education in europe and law students are largely based across the four uk nations. unlike most higher education providers, students can begin studying their law degree without having gained any prior qualifications and the majority study on a part time basis. the challenge was to develop pro bono activities that could be accessed remotely but which did not dilute the essence of the clinical experience that students at ‘brick’ universities are able to access through traditional clinical programmes. reviewed article 11 our solution was to develop justice in action, a 30-credit level 6 module on the undergraduate law degree. the module is delivered online in two phases, phase i begins by introducing the overarching themes of social justice, professional identity and professional ethics before developing transferable skills of legal research, writing, oral advocacy and online collaboration. innovative applications of technology, including bespoke smartphone based virtual reality, are embedded into both the teaching and practical phases of the module. there is a specific focus on how technology is transforming the delivery of legal services and developing the skills and competencies required for professional practice. phase ii involves students collaborating online to support the delivery of a range of pro bono projects. these projects fit into three broad categories. firstly, bespoke online projects run entirely online, such as the online advice clinic, secondly, projects which are prepared and supported online but delivered in face to face settings, such as prison workshops and thirdly, projects which are run in conjunctions with external partners, such as legal charities. phase iii requires students to produce an assessed reflection on their participation, drawing on the themes introduced in phase i. beginning with 100 students in 2017, we anticipate 180 students will study the module in the 2020 academic year with approximately half as many again taking part in projects on an extracurricular basis. https://onlinelibrary.wiley.com/doi/abs/10.1111/bjet.12850 https://onlinelibrary.wiley.com/doi/abs/10.1111/bjet.12850 reviewed article 12 space does not permit a full treatment of all our online activities, so part ii will provide a detailed description of a representative sample of some of our key projects. these will include those which have developed as online only projects, with either live or simulated clients, and a project which uses online methods to support, prepare and supervise students to deliver offline projects in prison settings. part ii: the projects open justice law clinic: online legal advice the open justice law clinic3 utilises clio, a web conferencing platform and a cloudbased case management system, to deliver online legal advice. 4 free access to clio is made available to universities through its academic access programme and facilitates the provision of legal advice to members of the public anywhere in the united kingdom.5 clients access the law clinic via a website where they complete an online form outlining their legal issue. enquiries are sent to the clinic mailbox where they are triaged to determine their suitability for the clinic. the client is either allocated to a firm of law students or signposted to other sources of help. once the case has been accepted the client receives a notification to set up a clio connect account. all client interaction takes place within the case management system. clients upload 3 https://www.open.ac.uk/open-justice/legal-advice 4 https://www.clio.com/uk/ 5 https://www.clio.com/uk/academic-access/ https://www.open.ac.uk/open-justice/legal-advice https://www.clio.com/uk/ https://www.clio.com/uk/academic-access/ reviewed article 13 documents relating to their case and interact with students and supervising solicitors via secure messaging. the students meet the client to conduct a factfinding interview which takes place in adobeconnect, a web conferencing platform. students research the legal issues and then using document and communication templates prepare a letter of advice. the students’ work is supervised by qualified solicitors and the advice is reviewed before being distributed to clients. since its inception in october 2017, 115 clients have received legal advice and an additional 200 clients have been signposted to other agencies for help. the clinic advises on a range of legal issues including employment, contract, data protection, consumer law and small claims. most clients find the law clinic via a search engine and we have not yet had to proactively generate client queries. from the perspective of the client, there are clear advantages to offering a university law clinic via an online platform. there are many reasons why it is not possible for some clients to attend face to face law clinics. a virtual law clinic is a flexible model because there are no physical or geographical barriers to participation; students can advise anyone with an internet connection. the impact of legal aid cuts has meant legal advice deserts exist in many places (amnesty international, 2016). a virtual law clinic has the potential to reach communities where the provision of legal advice has disappeared, although it is recognised that pro bono legal services are not a replacement for legal aid. a virtual law clinic provides a solution for some but not all people there are clients who do not have access to technology or the confidence to use reviewed article 14 a remote service. the literature demonstrates that the proliferation of technology is not without risk many as tools are not designed to support the needs of users and there is concern that many people face digital exclusion (hagen, 2018; sanderfur, 2019). in our experience, there are some areas of legal work and some clients where advice in person is the preferred option, so while a virtual law clinic is not a replacement for face to face advice, it can work to enhance the provision of legal support. from the student perspective, the flexibility provided by a digital platform removes geographical barriers to participation but also provides direct experience of how digital technologies are transforming the delivery of legal services. indeed, there is a growing expectation that students will have developed the skills to work in a changing legal profession (the law society, 2020). however, the benefits for students of participating in a virtual law clinic should not be reduced only to a discussion of job-related skills (nicholas, 2018). given the deficit in the provision of legal advice, technology has the potential to be leveraged to address issues of access to justice (mcginnis & pearce, 2014) and the flexibility offered by digital platforms raises the prospect of university law clinics collaborating in ways that are not possible using face to face clinics. this could potentially include students from different institutions working together on cases, or the pooling of supervision expertise to allow the coverage of a wider range of legal issues for example. reviewed article 15 digital justice: smartphone applications and chatbots to disseminate legal information the open justice centre initiated the digital justice project in 2019 as a means of exposing law students to a cross disciplinary pro bono project aimed at using smartphone technology to disseminate public legal information (mcfaul et al., 2020). the provision of accessible sources of information is recognised as a key component for addressing unmet legal need (pleasence and balmer, 2014) and some university law schools in the uk and beyond have begun to experiment with this technology (ireland et al., 2020; lupica et al., 2017). the creation of smart phone apps and chat bots presents an opportunity to develop and provide legal information that can be targeted at specific audiences. our digital justice project aims to allow students to experience the challenge of exploiting technology to provide legal help, to be able to identify useful legal services that can be delivered through legal tech and design and build legal tech that enables self-help in an agreed area of law. in the first iteration of the project ten students were selected for the project after a competitive application process. students worked in two groups, each with a brief to develop a smartphone app to disseminate information on employment law. the project adopted scrum methodology to facilitate team collaboration during a four stage design process, each lasting four weeks. the teams were supervised by a computing academic and law academic and met online at the start and end of each phase to review and agree the tasks for the next phase. stage 1 was the inspiration stage where students were immersed in an unfamiliar environment, introduced to reviewed article 16 technology tools, new people and an area of law. in stage 2, students started to synthesise to find meaning in what they had gathered and started to build the foundations for a workable legal tech solution. in stage 3 students were encouraged to experiment, they generated ideas and prototyped their designs. in the final phase they refined the design by focusing on how it would work with users and reflecting on the process they had undertaken.6 students felt that the project provided an exciting opportunity to develop their technology skills which they saw as having increasing relevance to law: ‘it feels like there is going to be a lot of development in legal tech and so it seemed like a really relevant thing to get experience in.’ the project allowed students to develop transferable skills: ‘maybe i can, you know… make apps myself to help people or my career prospects, but also for my own personal use.’ in the second iteration of the project, fifteen law students in three teams created and designed a chat bot app to provide legal information on an area of family law. to develop the project, we have invested in commercial software to allow our students to use a no-coding platform to create chat bots. chat bots are conversational workflows that use ai technology built into the software to mimic human conversations. josef provides a platform to build bots, the platform is straightforward and easy to use requiring a minimal amount of training. the bots can be linked to 6 a full technical report on the computing architecture and design process has been published (byrne 2019). reviewed article 17 external websites and can populate and format legal documents. the feedback from students was that ‘the project had extremely high value as it has application to the real world’ and it was ‘really interesting, enjoyable, challenging and stimulating, i really enjoyed the fusion of tech and law.’ one of the challenges is facilitating team collaboration at a distance. the level of commitment from students varies and this can have a negative impact on team dynamics (shirley and cockburn, 2009). a significant commitment in academic time and investment is required to support legal tech projects but students benefit from having opportunities to engage in real world experiences and there are opportunities for law schools to partner with legal charities and organisations to further develop these projects (mcfaul et al., 2020). there is growing interest in incorporating legal tech into the curriculum, law schools are starting to come together to explore the pedagogical benefits and challenges. online public legal education as a distance learning university, we are aware that some of our students may not be able to participate in face to face public legal education events such as is commonly undertaken in street law workshops in schools and other community settings. as such, we developed opportunities for students to engage in public legal education reviewed article 18 online. this has mostly taken place through the medium of open justice week7, which has run for three last three years. in addition to open justice week, students have also worked with the young citizens8 charity in updating, refreshing, and adding content to their smart law materials, which are made available to primary and secondary educators as part of the young citizen’s programme of support for citizenship-based education. for open justice week, students have been invited to contribute to providing materials that aim to promote public legal education and information through a variety of formats including, for example, online lectures on adobe connect, factsheets, or guidance documents. in the first iteration of the project students worked in groups to a simulated brief produced by the open justice centre. however, recognising the value of real client contact to cle pedagogy, in the second and third years, students were briefed by external organisations. for example, they were asked to research and produce information and guidance on employment rights for nonunionised workers, for the inverclyde advice and employment centre. in addition to this, each individual student on this project was asked by the open justice team to provide an additional factsheet on an issue pertaining to employment law. all materials pertaining to open justice week were published on an open university owned and controlled externally facing website, during the week the event was held. 7 https://www.open.ac.uk/open-justice/events/open-justice-week 8 https://www.youngcitizens.org/ https://www.open.ac.uk/open-justice/events/open-justice-week https://www.youngcitizens.org/ reviewed article 19 the event was publicised by the open justice team through our social media channels, and students were encouraged to also share the responsibility of promoting the event through their own channels. the strength of this project is that it gave students unable to take other opportunities the chance to contribute to public legal education. there has been some excellent work produced by students during the last three years, and substantial efforts made by many students. its weakness is that it was perceived to be the ‘easy’ option by students, and subsequently this was reflected in some of the work produced, which has not been up to standard. issues around collaboration persist, and several students have allowed others within their groups to carry the burden of most of the work. additionally, although students can contribute to real-life briefs, because they do not have a connection with the client – it is mediated through the open justice centre – they do not obtain the benefits of working directly with members of other organisations. the physical distance between client and student can lead to the dilution of the professional connection between the two. consequently, students may treat their tasks just like another assignment, without regarding its product as something designed to be used by an external organisation. this can mean that the instilling of values in our students can be less effective. in particular, students may not have the same regard to ethics of professionalism that might be obtained through other projects. reviewed article 20 policy clinic – research as advocacy whilst many students volunteering for pro bono work welcome the opportunity to work directly with members of the public, some students prefer the additional flexibility offered by engaging in advocacy via research-based tasks. students often reach the end of their law degree having defined their task as grasping and applying current law and resist considering, foreseeing, or working towards different legal rules and practices in the future (o’connell and difonzo, 2006). following an introduction to the policy clinic at northumbria university law school, we introduced an online policy clinic in 2019 where students work in small groups to carry out deskbased research, with the aim to influence policy and/or law reform. we considered a number of different models of clinic including an approach similar to whittier law school legal policy clinic, where students choose their own project (patton 2014). however, we wanted students to have an experience of working for a client and so students in the clinic researched an area of law on behalf of a charity or other organisation to provide analysis and evidence to influence policy and initiate law reform. the students worked in small groups and collaborated online on the research, analysis and report writing using a range of technological tools to support them. students could therefore work on the project flexibly to suit their circumstances, whilst regular online meetings facilitated discussions to progress the project. reviewed article 21 in its first iteration students in the policy clinic worked on a brief provided by justright scotland9, a human rights charity. justright scotland engage in policy work on behalf of survivors of female genital mutilation (fgm) and women at risk of fgm to improve protection and support. the charity requested support for their response to the scottish parliament consultation on fgm arising out the introduction of the fgm protection (scotland) bill in 2019. students were asked to produce a report on the draft bill and to provide policy recommendations to strengthen and improve protection in scotland for victims of fgm. the students were supported by two academics experienced in policy and advocacy work, one from the charitable sector and the other in the public sector. the students therefore benefitted from the advice and experience of those working in diverse policy arenas. following an online briefing from a director of the charity, students carried out initial training on conducting legal research, carrying out literature reviews and collaborative working. they then carried out desk-based research into the issues including comparisons with protections provided by other countries. following the research stage, the students analysed their research and finally produced a report of their findings for the client. the project was clearly structured, and students were only permitted to move from one stage to the next following supervision with an academic. this allowed us to provide additional support and guidance where needed to ensure the students’ final report was of a high standard and useful for the client. 9 https://www.justrightscotland.org.uk/ https://www.justrightscotland.org.uk/ reviewed article 22 however, this approach did require a higher time commitment from academic staff than we originally anticipated. one aspect we did not anticipate was that the students’ research skills were not always sufficient for what they were asked to do. students were proficient in more traditional legal research and sometimes struggled to find the information required to analyse the current law. we needed to provide additional support and training during the project. therefore, we intend to include additional training on research in advance of students starting their project in a planned way. we were concerned in the development stage of the project about the ethical and data protection implications of students carrying out empirical research. due to university processes, it would be difficult to obtain ethics consent within the timescales the clinic operates. we therefore decided to only permit desk-based research using existing secondary sources. due to the nature of the brief provided by the client, this did not prevent the students from completing their task. however, this is something that will need to be kept under review each year. the main issue we had in the clinic was a breakdown in the students’ relationships which led to difficulties in collaboration. this is something that occurs both face to face and online, but can be exacerbated online due to the lack of visual cues (long et al 2013). with careful management by clinic staff, students were encouraged to work independently on specified areas and with support they re-built their working relationship and produced the final report together collaboratively. reviewed article 23 online mediation – utilising simulations the online mediation clinic started in 2018 and has trained 31 students in professional standard online mediation skills. the civil mediation council (n.d) defines mediation as “a process where an impartial person (the mediator) helps two or more people, or groups of people, to discuss and resolve disputes.” important features of mediation include the fact it is voluntary, confidential and the process is under the control of the parties (waters, 2014 p92). students attended four online training sessions run by two trained mediators, one a family law mediator and one an employment judicial mediator. the training did not focus on one particular style of mediation and covered the different mediation models and generic mediation skills. students learned about the mediation process, the difference between effective online and face to face mediation and mediation skills. outside the sessions, students worked in small groups, collaborating online using a variety of synchronous and asynchronous tools. they practiced the skills taught in the training sessions using scenarios provided by the mediators, alongside completing additional reading and activities. this training process took place over three months. students then took part in a practice mediation session where they alternated between playing the part of the mediator and client. there was a final simulated mediation session where students mediated a dispute with actors playing the part of the clients. students felt confident to mediate these final sessions themselves due to the progressive development of their understanding and skills in the training, as one reviewed article 24 student commented: ‘the mediation training was brilliant and gave me the skills to competently mediate a dispute between two fictional clients.’ the combination of theoretical and practical training enables the students to obtain all of the benefits outlined by mekel-meadons (1993); a better understanding of how the legal system operates, experiential learning, better lawyering skills and a better understanding of the role of values and ethics. they understand the place of mediation within the civil justice system. their transferable skills are developed including communication skills, conflict resolution and online skills. students also appreciate that resolving disputes through the courts may not always provide clients with the opportunity to gain a just or desired outcome; ‘i have learnt that what could be seen as the traditional route through the legal process, is not obtainable or viable for all situations, therefore, mediation as a form of adr (alternative dispute resolution) can be a route to obtain social justice.’ the online nature of this project has made it accessible to a wide range of students, including those who would be unable to participate face to face due to their personal circumstances. both the training and mediation sessions have been effective in the online environment and students’ general online skills have improved as they have explicitly considered the implications of operating in an online, as compared to face to face, environment. there are two things we would have liked to have known before starting. firstly, some students had difficulties relating mediation to wider themes such as social reviewed article 25 justice, professional identity and professional ethics. students became very focused on skills development and struggled to connect their experiences to their wider learning or the legal system. as the project has developed, we have become much more explicit in highlighting for students the links to these themes, particularly professional ethics. secondly, at the start of the project we invested a lot of time trying to locate a partner to allow students the opportunity to mediate disputes between real clients. we were unsuccessful in this; we did not want to work with vulnerable clients as we were concerned that they may lack the means or confidence to access an online mediation service. we were also constrained in when we could offer this service due to extensive training period before students could act as mediators. we therefore used simulated mediations instead. whilst this was disappointing for us as educators, student feedback consistently welcomed the simulated nature of the mediation as it gave them confidence and security. we still hope to develop the project to be able to offer services to members of the public, but would retain the simulated mediation sessions as a valuable learning experience for our students. public legal education in prisons: providing online support for face to face pro bono activities since 2017, the open university law school through its open justice centre has run pro bono public legal education projects in eleven prisons across england and wales. over ninety law students and seven tutors have taken part. the value to law students of undertaking pro bono public legal education in terms of developing their legal reviewed article 26 research, writing, presentation and professional skills has been well documented (draslarova, 2019; mcquoid mason, 2008; montana, 2009). our prison projects are particularly challenging within the context of the open university as most students have never met each other, or their tutors, face to face. invariably, the first time they meet is outside the prison gate. while the projects are delivered face to face within prisons, the preparation for each visit and the debrief afterwards are conducted entirely online. it is fair to say that we underestimated the challenges in working with time-poor students at a distance (and we also underestimated the challenges of working within the prison environment). the online support for students consequently includes the building of effective working relationships between students and between them and their tutors, as well as the substantive work of preparing appropriate law resources for prisoners. a summary of the process is provided below: 1. online briefing session for law students before the first of three prison visits, students are required to attend an online briefing or to listen to its recording. aspects covered include security issues and the professional responsibilities of law students. 2. online open university safeguarding training reviewed article 27 students are required to undertake short online safeguarding training courses provided by the university. these are concerned with safeguarding issues with respect to the prisoners. 3. online meetings the tutor appointed to support the students on each prison project meets them regularly for planning purposes before each prison visit and afterwards for a debrief via the adobe connect platform. most students are quite reticent in an online environment if they have not met each other or their tutor. they prefer not to use their microphones and instead ask questions via the chat box. understandably, the students are more relaxed in the online environment once they have met each other face to face on the first prison visit. 4. online forums each prison project has its own online forum for the tutor and their students. it is used to prepare for each prison visit by sharing, critiquing and re-drafting the learning resources developed by the students. most students are initially apprehensive about the process, but appreciate its effectiveness after the first prison visit. 5. whatsapp we now encourage students in each prison project to set up a whatsapp group. this development was needed to accelerate the building of good working relationships, to improve informal group communication and to provide peer support. most of our reviewed article 28 students work and otherwise have extensive commitments: whatsapp is an easy and immediate means for them to communicate. we also needed a more effective way of liaising with the group on the day of each prison visit to keep everyone abreast of arrival times, travel delays and a place to meet. most of the prison projects have been in partnership with st giles trust10. the charity selects and trains prisoners to act as peer advisors to their fellow prisoners. together, the law students and peer advisors identify areas of legal need in the prison, which the students then research and develop suitable learning materials to help address that need. subjects covered have included indeterminate sentences, release on temporary licence and restraining orders. the peer advisors are then able to disseminate this knowledge to other prisoners. in another prison, the dissemination of general legal information takes place over prison radio. most students on the prison projects report finding their experiences transformative. it makes them reflect deeply on the criminal justice system and the punitive and rehabilitative functions of prisons. they are often intrigued that the stereotypical picture they had of prisons and prisoners is confounded by the reality they encounter. a few change their career direction to becoming lawyers specialising in criminal law, others volunteer with prison education departments or with charities working in prisons. for many, it is the most worthwhile and impactful thing they do on their law 10 st giles trust is a charity which provides help and support for the vulnerable and disadvantaged in prison and community settings. https://www.stgilestrust.org.uk/ reviewed article 29 degree: ‘i believe that this programme with st giles will probably be one of the most powerful learning experiences which i will have on my journey into "law".’ part iii learning from experience our experience of taking cle online, outlined above, has been fundamentally positive. it has allowed distance learning students to participate in pro bono legal projects that would be otherwise closed off to them. this has been to their benefit, evidenced by both the high pass and completion rates on the module but also from their feedback on how the experience has informed their professional and personal outlook. such experiences are no doubt familiar to clinical educators in other law schools. however, the task of taking clinical legal education online does have inherent challenges that have become apparent to us during our four year experiment and which echo issues raised in the developing literature in this field (mccrimmon et al., 2016; horrigan, 2019). we have identified three key themes that summarise the range of issues we wish we had been fully aware of before commencing our experiment; collaboration, quality and congruence. each will be discussed in turn below. collaboration all of the online open justice projects involve students working collaboratively in small groups. collaborative working can be difficult for students whether online or face to face; students simply may not get along or there may be differing expectations, reviewed article 30 motivations and engagement (muirhead, 2001; bugden, 2018). however, there are additional challenges in the online sphere. if students have not met, it can be harder to build trust, and co-operation (bauman, 1993). online small group work may result in the use of stronger, more inflammatory communication (siegal et al 1986; o’sullivan and flanagan, 2003). in a virtual environment you can miss non-verbal clues and there can be delays in communications and miscommunications, such as students making assumptions about remote team members’ motivations and contributions and being less able to see things from their colleague’s point of view (long et al 2013). students can have different schedules, even different time zones, and this can make it harder to build rapport and teamwork. in order to overcome these challenges, we worked to build our students’ capacity to collaborate virtually and we used a range of online collaboration tools and strategies to support this. we carefully scaffolded learning about and participation in collaboration to develop our students’ ability to work in online teams. at the start of their project we provided training and guidance on team development. for example, we used scenarios to encourage students to work through how they would problem solve collaboration issues. students were asked to agree and write a team agreement on how they will collaborate together. this included assigning roles and responsibilities, agreeing communication methods and deciding how they will resolve disputes. the team agreement had to be submitted as part of the first assignment but was not given a mark. instead students were assessed on an individual reflection on reviewed article 31 the process of drafting the team agreement. this ensured the assignment was worth enough credit to commit students to its completion, but not so much so that the students were overly committed to the final grade (long et al 2013). following the first assignment students started work on their project and there were online small group meetings with their tutor, where effective online collaboration was modelled by the tutor. students were encouraged to gradually take over responsibility for the running of the online small group meetings and the management of the group work, using the skills and techniques they had learnt and observed from their tutor. two months into the project there was a further assignment where students were asked to reflect on their skills development, including collaborative working. students were asked to identify where their skills have strengthened and how they will address remaining weaknesses. this allowed the tutor to assess collaboration within each small group and to identify any issues which needed addressing. students continued to meet and collaborate independently, with regular progress meetings with their tutor where any issues could be addressed. this scaffolded approach recognises that students may not have the necessary skills to work in an online environment and encourages them to acquire these skills in a supported way, following which students work independently in their small groups. online collaboration is not an innate skill and students need significant advice and guidance on how to collaborate, particularly in the online environment (susamn and majchrak 2003, shirley 2009, long et al 2013, bugden et al 2018). reviewed article 32 however, it is the argument in this paper that investment made in developing these skills is worthwhile, both in terms of the success of the online projects, but also in terms of students’ development. collaborative skills are a highly sought after graduate skill, for both legal and nonlegal careers (eisner, 2010). online group work offers advantages for both students and law schools. it can be more accessible for students, particularly for those who have difficulties attending face to face events. it is more flexible for students due to the mixture of synchronous and asynchronous opportunities to work together. this allows students a greater opportunity to engage as they work around their working or caring commitments. online collaboration skills are also a desirable employability skill as the ability to collaborate virtually improves teamwork skills in the co-located environment (ubell 2010). for law schools, it can offer a flexible and attractive way to work with external partners; partners do not need to travel to a campus to meet students and the time commitment and associated costs are therefore reduced. quality ensuring the quality of the clinical practice for both the student and the client in an online environment has been an issue that has been particularly challenging. this involves several related issues. supervising students at a distance in all online projects requires careful management and planning and also sufficient investment in qualified staff with the right combination of legal and pedagogical skills. it takes thought and planning to devise teaching materials that can effectively train students in the practicereviewed article 33 based research and clinical processes required to produce work of sufficient quality. this is particularly the case where students are involved in creating materials for public consumption. the processes around quality assurance in the advice clinic setting, where work is signed off by a qualified lawyer, is of equal importance in other public facing projects and the ability to monitor the processes and outputs around student work needs careful thought and planning. we have given a lot of thought to considering whether our assessment regime can help support the quality of student outputs by directly assessing their work on the projects. given the variety of projects, the reliance on group work and dispersed nature of the cohort, we have yet to devise a model of assessment that would achieve this. instead, we rely on the assessment of students via a 3,000 word critical reflection, an approach adopted by other online clinical programmes (mccrimmon et al., 2016). congruence our experience has also highlighted the need to facilitate projects which are congruent with professional standard legal work but also congruent with the capacity of students to participate properly in them. our aim was to construct projects which gave students the experience and insights that professional standard pro bono activities can provide. in our experience, this can best be achieved by giving students as much exposure to real clients as possible (ryan, 2019; mcfaul et al, 2020). we have achieved this in many, but not all our projects. our mediation and digital justice projects have relied on simulated briefs, but our aim is to develop suitable partnership reviewed article 34 arrangements to provide the opportunity for students to gain client facing experience and to use their skills for the direct benefit of members of the public. our successes in providing students with exposure to clients have often been the result of either bespoke uses of technology, such as the online advice clinic, or a result of partnership relationships with external agencies. however, providing this level of experience for students working online has to be balanced with an awareness and appreciation of the ability of students to participate in the projects offered whilst balancing their other commitments. the first iteration of our online clinical legal education module made it mandatory for students to participate in two pro bono projects. this proved to be an unrealistic level of expectation for our learners and we had underestimated the time and energy required for them to work collaboratively on demanding client facing projects. as a result, we had to modify the requirement to one mandatory project and offer participation in an additional project on an extra-curricular basis. we have found that this has had significant benefits for the level and quality of student participation and the importance of not overloading students is a finding that is supported by other authors (horrigan, 2019). conclusion this paper has reviewed the experience of the open justice centre’s four-year adventure in taking clinical legal education online. we have argued that it is possible reviewed article 35 to provide meaningful and engaging clinical legal education activities to students studying at a distance but that there are significant challenges to be negotiated in doing so. key among them is the need to invest time and energy in developing effective working relationships in an online environment, as well as investment in experimenting with appropriate applications of digital technologies. also, investment in relationships with external partners who can help facilitate student exposure to live, rather than simulated clients is important. we have argued that overcoming these challenges will allow students to benefit from the personal and professional development that pro bono legal work can provide. further research and experimentation are required to understand how digital technologies can improve clinical practice for both students and members of the public. a particular focus of this research should be the extent to which the move to online methods during the pandemic will open up new possibilities for enhanced collaboration between university law clinics. it would be a heartening if the social distancing that we have been forced to endure prompts clinical educators to work towards building a flourishing online clinical legal education community. references amnesty international (2016) cuts that hurt: the impact of legal aid cuts in england on access to justice, [online]. available at http://oaresource.library.carleton.ca/aicutsthathurt.pdf (accessed 9 july 2020). bauman, z. 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(2015) ‘lawyering in a digital age: a practice report on the design of a virtual law clinic at cumbria’, international journal of clinical legal education, vol. 22, no. 3, pp. 334–361 [online]. doi: 10.19164/ijcle.v22i3.471. the law society (2020) digital futures [online] available at: https://www.lawsociety.org.uk/topics/research/digital-futures (accessed 13 july 2020) ubell, r. (2010) ‘virtual team learning’ t&d vol 65 no 10 pp53-7. [online] https://www.td.org/magazines/td-magazine/virtual-team-learning (accessed 9 july 2020) waters, b (2014) ‘mediation and experiential learning: how a mediation clinic can inform a law-based curriculum’ international journal of clinical legal education, vol.16, p.90 https://www.td.org/magazines/td-magazine/virtual-team-learning valuing difference? experiences in two clinical environments martin wilson northumbria university exempting law degree, year 4 what do most people think of a law degree – plentiful amounts of hard work, boundless reading, an expensive legal practice course or bar vocational course followed by an extremely competitive application process to secure a job in the graduate’s respective field of work? what if students were given the opportunity to work in another jurisdiction, such as australia, for one month in a student run law office, during the summer, with £1000 to get them on their way? ‘sounds good’, i thought. ‘so what do i have to do to get the chance’? and then the one catch is divulged – the students must complete a compulsory piece of coursework and achieve one of the top 10 marks in their year. (the writer expects a few raised eyebrows at this stage!) last summer, northumbria university in partnership with irwin mitchell and monash university, in melbourne australia, offered one northumbria student a pro bono scholarship to work in the springvale monash legal service (smls) for one month. irwin mitchell kindly sponsored this scholarship and provided £1000 to the lucky student. to get the chance of participating in this pro bono scholarship, the chosen student had to complete a compulsory piece of legal research coursework and attain one of the top ten marks in the year. the top students were then invited for interview before a panel of three comprising two northumbria student law office staff and one partner from irwin mitchell, whose selection criteria proved to be which student demonstrated a commitment to pro bono work in the student law office. technically, when i was selected for the scholarship, following the high i experienced and the come down to normality, i should not have been anxious whatsoever. i had spent a great deal of my undergraduate studies in preparation for working in northumbria university’s pro bono student law office and besides, australia’s legal system is a common law system partly based upon our system, what could be so different? but i was about to travel to the other side of the world alone and work in a completely different jurisdiction where i knew nobody. the experience however proved to be very different to my anxieties. working in the springvale monash legal service was unique in terms of the diversity of experience i managed to encounter and the skills i acquired regarding working in a law office, client care and giving advice to live clients. each day provided a different experience to any other. for two days of the week, i worked in the springvale monash legal service in a client drop in session, in which four hours student time was 200 journal of clinical legal education december 2004 dedicated to meeting members of the community on a one to one basis. the legal problems that students were confronted with proved to be more extensive than those that a busy high street law firm would be presented with daily. these ranged from fencing disputes, matrimonial matters, child residency issues, minor criminal offences, employment matters, through to a request to complete a change of address form due to language difficulties. springvale monash legal service, in terms of the diversity of legal and non-legal matters presented on a daily basis had similarities with a citizens advice bureau in britain. moreover, a significant proportion of clients required the assistance of a telephone interpreter due to language difficulties, which posed its own interesting problems when interviewing and advising a client. during another day in the working week, i had the opportunity to work at the family law courts in a suburb in melbourne through another monash university pro bono programme aptly named the family law assistance programme (flap). students and qualified solicitors provided a mainly advisory service to any family court attendees who required it and this could occasionally extend to representation if circumstances so required. through this programme, students not only had to deliver immediate advice on a quick turnover basis but also had the opportunity to observe the procedural workings of the family courts. during the fourth day of the weekly programme, i was sent to participate in monash’s intervention order support scheme (ioss) at the criminal law courts in another suburb in melbourne. through this excellent programme students and qualified solicitors manned a drop in session for unrepresented applicants who often found the entire experience of applying for an intervention order extremely distressing and traumatic. it was through this scheme that i gained the greatest amount of personal accomplishment specifically when i sat with an applicant in court providing emotional support for her in the traumatic experience of meeting the respondent in open court. the final day of the week saw me engage with other students in various lectures and seminars regarding their pro bono course of studies. overall, the monash pro bono programme, encompassing smls, flap, ioss and other schemes, proves to be of significant value to both the local community and students who participate in it. irrespective of the warmth and friendliness of the staff and students at monash, the programme of events that i experienced during the scholarship were excellent in terms of the professionalism of those involved, the sheer diversity of experience one can take from it and the benefit to all who came into contact with it. however, to make a like for like comparison between northumbria university’s pro bono programme and that at monash university would be ignorant of the fact that the two programmes seem to be aimed at achieving different objectives and are situated in two wholly different legal climates. on the one hand springvale monash legal service is situated in a strategic suburb in melbourne and is aimed at providing a high turnover of advice to members of the local community, with some varying degrees of language difficulties, and is also intended to take on those more in depth cases requiring more detailed levels of research and student input. there are numerous similar university run schemes around australia, such as those run by neighbouring melbourne university. furthermore, victoria legal aid (the australian state legal aid provider) see work such as that undertaken by victorian student run law offices as strategic in delivering legal services to the general public and consequently appear to be much more involved in the funding of certain valuing difference? experiences in two clinical environments 201 aspects of the schemes than occurs at northumbria’s student law office. the students at monash elect to work in the pro bono law office and spend a period of 3 months in doing so, which differs further from its english counterpart. students encounter an exceptionally varied range of legal problems spanning across numerous areas of law also. in comparison, northumbria university’s student law office is situated on campus in the city centre and seeks to serve a very different legal need. drop in ‘advice on demand’ style centres already exist in england and wales, such as the citizens advice bureau, and therefore the student law office has not been set up to, nor is it required to provide such a service. another marked difference between the two law pro bono programmes is that the northumbria model is unique in england and wales, in terms of the depth of the programme. australia already has caught onto the idea of student run law offices but england and wales are yet to follow suit. students studying on the exempting law degree find working in the student law office a compulsory and extremely important part of their final year. cases can be taken on and sometimes followed through to fruition due to the greater time available over the academic year to work on specific cases. additionally, students are placed into firms of students with one supervisor that specialise in a particular area of law and they subsequently focus on one area of law rather than experiencing the wide ranging areas that the smls students will encounter. this provides a distinctly different educational experience to that gained at monash and that is the thrust of the writer’s conclusion. monash and northumbria university’s pro bono programmes are different; they both intend to serve different legal and educational needs. the monash model is typically australian in the way that it has a student atmosphere about the law office, but that it still retains its professional outlook. upon entering the office one can hear the chorus of ‘g’day mate’ as the custom welcome and the discussions of where some intend to go surfing later. whereas the northumbria office has a typically english feel to it – a professional outlook coupled with a desire to sound professional and look professional in every task. and it is these closing points that ensured that my experience was so interesting; to be able to see, hear and experience the differences between two student run law offices at opposite ends of the world! 202 journal of clinical legal education december 2004 165 the opportunities and challenges of an interdisciplinary clinic paula galowitz introduction law school clinics in many countries increasingly provide the major opportunities that law students have to engage in interdisciplinary collaborations with other professionals�1 the collaboration may be with a wide range of professionals, such as: doctors and medical students; social workers and social work students; business school students; engineering faculty and students including biomedical engineering students; nursing students; and experts in public health, education, mental health or palliative care�2 it can occur in diverse contexts or targeted to specific populations, such as children, the elderly, victims of domestic violence or low-income business owners� some examples of these interdisciplinary clinics illustrate their variety� clinical legal education initiatives in south africa, thailand and ukraine promoted public health through programs that partnered with the law and health initiative of the open society institute’s public health 1 one of the ways in which the practice of law, including public interest law, is changing in this century is the increased focus on interdisciplinary and collaborative lawyering� see karen tokarz et al., conversations on “community lawyering”: the newest (oldest) wave in clinical legal education, 28 wash� u� j�l� & policy 359, 362 (2008)� 2 although beyond the scope of this article, the literature on interdisciplinary higher education generally is insightful and has implications for legal education� see, e.g�, elisabeth j� h� spelt et al�, teaching and learning in interdisciplinary higher education: a systematic review, 21 educational psychology review 365 (2009), available at http://www�springerlink�com/content/k737068167hl2007/fulltext�pdf; martin davies and marcia devlin, interdisciplinary higher education: implications for teaching and learning (centre for the study of higher education, the university of melbourne, 2007) available at http://www�cshe�unimelb� edu�au/resources_teach/curriculum_design/docs/interdisciplinaryhed�pdf information about interdisciplinary models of service learning in higher education is available at the national service-learning clearinghouse at http://www�servicelearning�org/instant_info/fact_sheets/he_facts/ interdisciplinary (last visited on june 3, 2012)� 166 international journal of clinical legal education issue 18 programs�3 in south africa, palliative care was integrated with legal services; law students worked with staff at a hospice association to conduct workshops on wills, debts and family law for hospice caregivers�4 in ukraine a medical law clinic was started to advise and represent clients; in thailand a law clinic wrote an hiv/aids community legal education manual, collaborated with organizations working on health and human rights issues to discuss harm reduction and incarceration, and implemented community education programs in prisons, detention centers and community centers�5 at palacky university in the czech republic a new patient’s rights legal clinic, which prepares students to give legal advice, is taught by lecturers of the medical faculty and lawyers from a human rights non-profit�6 a clinic in the united states provides business planning and legal advice to small businesses; law and business students collaborate to assist with community economic development�7 another united states clinic combines students in law, business, medicine, social work, biomedical engineering, and arts and sciences in a collaboration focused on intellectual property and business formation, with an emphasis on biodiversity and agricultural-biotechnology innovations�8 these clinics teach students to represent clients effectively and offer the possibility to advance social justice� the nature of these collaborations varies considerably, from the kinds of professionals that collaborate to the nature of the populations served�9 they provide an opportunity for a range of services beyond the representation of individual clients� the interdisciplinary clinics also create 3 for a discussion of these clinical legal education initiatives, see tamar ezer et al., promoting public health through clinical legal education: initiatives in south africa, thailand and ukraine, 17 human rights brief 27 (2010)� the objectives of these programs “range from legal empowerment of marginalized communities to client-centered services to norm-setting and policy advocacy� this diversity reveals the variety of methods through which law and health partnerships can improve global public health�” id� 4 id� 5 id� at 27-28� 6 a description of the patient’s rights legal clinic at palacky university can be found at http://en�wikipedia�org/wiki/ centre_for_clinical_legal_education_%28palack%c3%bd_university,_faculty_of_law%29#patient�27s_ rights_legal_clinic (last visited may 17, 2012)� in addition, an interprofessional medico-legal problem-cased learning program was developed for medical students and students of law at palacky university� see http://oto. sagepub.com/content/143/1_suppl/124.1.full 7 see susan jones, promoting social and economic justice through interdisciplinary work in transactional law, 14 wash� u� j�l� & policy 249 (2004)� 8 the intellectual property and business formation clinic at washington university in st� louis is described in the article by anthony j� luppino, minding more than our own business: educating entrepreneurial lawyers through law school-business school collaborations, 30 w� new eng� l� rev� 151 (2007)� 9 there are many articles that discuss these collaborations and aspects of these collaborations� for example, see karen l� tokarz, introduction to poverty, justice, and community lawyering: interdisciplinary and clinical perspectives, 20 wash� u� j�l� & pol’y 1 (2006) (series of conferences and scholarship on the “practical, pedagogical, ethical, and social justice aspects of interdisciplinary clinical teaching and practice”), id� at 2; alexis anderson, lynn barenberg and paul tremblay, professional ethics in interdisciplinary collaboratives: zeal, paternalism and mandated reporting, 13 clinical l� rev� 659 (2007) (ethical issues in collaborations between lawyers and social workers); rose voyvodic and mary medcalf, advancing social justice through an interdisciplinary approach to clinical legal education: the case of legal assistance of windsor, 14 wash� u� j�l�& pol’y 101 (2004); dina schlossberg, an examination of transactional law clinics and interdisciplinary education, 11 wash� u� j�l�& pol’y 195, 203 (2003)� the opportunities and challenges of an interdisciplinary clinic 167 linkages between schools within the university and initiatives for outreach to the community�10 each of the professions in an interdisciplinary collaboration has its own culture, values and definitions of roles that impact effective collaboration� exposing students to these different professional cultures can create opportunities for improved, more complete service for our clients, and for students to develop into more reflective practitioners as they use the other professions’ approaches as a mirror to deepen reflections on their own professional role� the clinics also provide opportunities for clients/patients to be part of the collaborative team� among the cultural challenges are conflicts around differing views of responsibilities to the client, duties of confidentiality, and what constitutes a conflict of interest� this article focuses on one such collaboration: the medical-legal advocacy clinic, a medicallegal partnership in a law school clinic, in which law students and medical providers collaborated to address health care issues more effectively� that clinic, which i co-teach, is a medical-legal partnership with a multidisciplinary and holistic approach to provide legal advocacy in a medical setting for clients referred by medical professionals� the model of medical-legal partnerships is used in this article to examine the opportunities and challenges of interdisciplinary clinics for students, clients and faculty, and to provide a way to reflect critically on interdisciplinary clinics generally� in section i, definitions of interdisciplinary clinics are discussed along with exploring reasons for their growth� section ii describes the attributes of and models for these clinics� the medical-legal advocacy clinic at new york university school of law is discussed in section iii� section iv addresses the opportunities of interdisciplinary clinics for students, clients and the faculty� section v discusses the challenges of these clinics, including suggestions to address some of the challenges and enhance the opportunities of interdisciplinary clinics� i� definitions of interdisciplinary clinics and reasons for their growth11 typically, an interdisciplinary12 clinic is collaboration between or among law students and other students in professional schools, or other professionals, to help address the multidimensional problems faced by clients� it is a “multidisciplinary model [that] can respond to the myriad needs of those who are poor or marginalized by their social, medical or psychological circumstances�”13 10 see, e.g�, katherine c� pearson and lucy johnston-walsh, partners in outreach and advocacy: interdisciplinary opportunities in university-based legal clinics, 11 journal of higher education outreach and engagement 163 (2006); anita weinberg and carol harding, interdisciplinary teaching and collaboration in higher education: a concept whose time has come, 14 wash� u� j�l� & pol’y 15 (2004)� 11 there is a long history of lawyers and social workers working together to serve low-income clients� in the early 1900s, lawyers and social workers discussed whether to join forces and, if so, how� one of the original models for the provision of legal services in the 1960s involved the placement of such a program within a multi-service social service agency, premised on a belief that legal services could be part of an anti-poverty program� since the beginning of the legal services movement in the 1960’s, lawyers and social workers have worked together to address the legal needs of their clients� see, e.g�, paula galowitz, collaboration between lawyers and social workers: re-examining the nature and potential of the relationship, 67 fordham l� rev� 2123, 2130-31 (1999)� 12 the terms “interdisciplinary” and “multidisciplinary” are sometimes used interchangeably but they have different meanings� “multidisciplinary” implies that each discipline approaches issues from its own perspective, staying in its own “silo,” more akin to separate but equal, while “interdisciplinary” implies a more integrated teaming among disciplines� see r� l� jessup, interdisciplinary versus multidisciplinary care teams: do we understand the difference?, 31 australian health review 330-31 (2007)� 13 stacy l� brustin, legal services provision through multidisciplinary practice—encouraging holistic advocacy while protecting ethical interests, 73 u� colo� l� rev� 787, 792 (2002), cited in ezer et al., supra note 3, at 27� 168 international journal of clinical legal education issue 18 there are a number of reasons for the growth of interdisciplinary clinics� one is the crisis in many countries about the lack of availability of legal services in civil matters for indigent populations, leading to the need for new and innovative ways to deliver legal services� another is the growing recognition that legal problems arise in larger contexts that require additional services and the clients’ issues are not typically only legal in nature�14 many clients have issues in which it can be difficult to separate the legal aspect from that which is typically associated with other disciplines�15 professionals are increasingly aware that working together with other professions can better serve clients and improve outcomes�16 leveraging limited resources can result in improved service for clients, where the professions working together can address problems more effectively than could be done by the professions working separately�17 in addition, there needs to be a “more conscious coordination and integration of delivery of services” to low-income communities�18 non-lawyers can be important participants and actors in legal institutions19 and can help facilitate the interactions between the lawyer and the client� ii. attributes and models of interdisciplinary clinics certain attributes typify interdisciplinary clinics in which there are integrated interdisciplinary teams�20 one is a shared expertise, so that it is not legally focused and lawyer-directed� in this model it is not just the other professions assisting the lawyer, but rather the lawyer and other professional undertake a joint approach� in addition, the collaboration uses and relies on the knowledge of all of the participating disciplines� it is important that the various professionals understand that there are many ways that the law can be part of a comprehensive approach to meet the needs of the clients: litigation is not the only way� an additional component of interdisciplinary service is a team commitment to the importance of developing creative approaches to assist clients� moreover, there should be a structure that formalizes the relationship 14 multidisciplinary practices for low income and middle income clients recognize the “centrality of nonlegal as well as legal needs and the barriers clients face in accessing legal services�” louise g� trubek and jennifer j� farnham, social justice collaboratives: multidisciplinary practices for people, 7 clinical l� rev� 227, 229 (2000)� some of the common elements in these collaboratives are shared expertise, the lawyer as both a professional and collaborator, and a long-range commitment to the client group� id� at 257-63� 15 mary daly discussed this in the context of law and accounting and financial planning (mary c� daly, choosing wise men wisely: the risks and rewards of purchasing legal services from lawyers in a multidisciplinary partnership, 13 geo� j� legal ethics 217, 222 [2000]), but it is even more applicable in the public interest arenas� 16 multidisciplinary programs “offer a potentially significant advance in the way legal services are provided to lowincome and other marginalized programs�” brustin, supra note 13, at 794� 17 for a discussion of the effective leveraging of limited resources in medical-legal partnerships, see randye retkin, julie brandfield and margo hoppin, medical-legal partnerships: a key strategy for mitigating the negative health impacts of the recession, 22 the health lawyer 29 (october 2009)� 18 schlossberg, supra note 9, at 210� 19 there is increasing recognition of “non-lawyers as important actors in legal institutions while simultaneously facilitating the engagement between lawyers and their clients�” id� 20 there are different models of interdisciplinary clinics� three different models discussed in the literature are: 1) the “in-house” model in which clinical faculty include non-traditional legal skills such as community education and lobbying; 2) the “professional consulting/collaboration” model in which clinics use professionals from other disciplines on a consulting basis; and 3) an “integrated partnership model” in which professionals from different disciplines plan, develop and co-teach a clinic “to students from different disciplines who jointly provide legal and technical services to the clients of the clinic�” tokarz et al., supra note 1, at 382-384� instead of falling clearly within only one of these models, some interdisciplinary clinics can operate on a continuum� id� at 384� the opportunities and challenges of an interdisciplinary clinic 169 between the professionals and anticipates the possible problem areas in joint service provision�21 some of the interdisciplinary clinics also pursue approaches that foster systemic change� although true for all clinical education programs, it is particularly critical in interdisciplinary ones that the goals and values of the program are transparent and agreed upon by the various partners� for example, the success of the interdisciplinary program in windsor, canada depended on a shared understanding of its goals and values, curriculum design that reflected those goals and values, and institutional support and sanction for the goals and values�22 effective interdisciplinary models “minimize the limitations imposed by differing professional roles, the pressures of time, the vagaries of personalities, and the imbalances in collaborative practice that are a reflection of existing power imbalances between the…professions in our culture�”23 iii. description of the medical-legal advocacy clinic at new york university school of law: an interdisciplinary clinic the opportunities and challenges of an interdisciplinary clinic for students, clients and faculty teaching the clinic are discussed, using the model of and through the lens of a medical-legal interdisciplinary clinic that i co-teach� the medical-legal advocacy clinic at new york university school of law (hereinafter mlac) is a medical and legal collaboration� most of these medicallegal collaborations in the united states are partnered with legal services offices; only a relatively small number are clinics based at law schools as part of an in-house clinic�24 the mlac employs a multidisciplinary and holistic approach to provide legal advocacy in a medical setting for clients referred by medical professionals� many legally-related issues can affect the health of low-income families and many of the problems that affect the health of the children and families have legal remedies� this clinic is a medical-legal collaboration to improve health outcomes for patients/clients by providing on-site legal advocacy and training to medical providers�  21 as stated by j� michael norwood and alan paterson in their description of a multidisciplinary practice in which the university of new mexico child advocacy clinic is the legal services provider, the professionals need to work out “an organizational structure that formalizes their relationship and addresses the complexities of responding to ongoing client needs in a manner that both maximizes efficiency of effort and minimizes ethical pitfalls�” j� michael norwood and alan paterson, problem-solving in a multi-disciplinary environment? must ethics get in the way of holistic services?, 9 clinical r� rev� 337, 357 (2002)� 22 voyvodic and medcalf, supra note 9, at 102� this interdisciplinary clinic involving law students, social work students, lawyers and social workers had the following values: the joint effort of a university law school and government agency that links the clinic to professional education and engagement with social policy; service to low-income communities that shows a commitment to justice and social justice; an interdisciplinary approach that combines law with social work services; an inclusive range of services including casework, public legal education, community development and law reform activities; and a learning environment that suggests a balance between the academic curriculum and service to the community� id� at 102-03� 23 jacqueline st� joan, building bridges, building walls: collaboration between lawyers and social workers in a domestic violence clinic and issues of client confidentiality, 7 clinical l� rev� 403, 425 (2001)� in this article, professor st� joan discusses collaboration between law students and social work students� 24 according to the website of the national center for medical-legal partnership, there are medical-legal partnerships at over 235 health institutions and, of those, fourteen are in law school clinics and sixteen, including two in canada, are in law school externship programs� see http://www�medical-legalpartnership�org/ mlp-network/law-schools (last visited may 17, 2012)� jane r� wettach discusses the model of a medical-legal partnership in a clinical setting, particularly one that focuses on education and government benefits� jane� r� wettach, the law school clinic as a partner in a medicallegal partnership, 75 tenn� l� rev� 305 (2008)� 170 international journal of clinical legal education issue 18 in the first few years that the mlac was taught, law students, who were in their second or third (last) year of law school, and pediatric medical residents (in the second and third year of a three year residency program after completing four years of medical school) collaborated to address more effectively the health issues of their clients/patients� the medical residents were in the residency program in social pediatrics at montefiore medical center in new york city� these residents intend to practice in clinical practice, community health and advocacy; they spend a significant part of their clinical time in their second and third years of residency in a federally-funded community health center serving primarily low-income african-americans and latinos� the patients of the community health center present a multitude of psychosocial issues, including family disruption (due to illness, incarceration, violent injury, child abuse and/ or neglect), poor housing, unemployment and poverty, domestic violence, lack of access to health care, and immigration problems� many legally-related issues can affect the health of the patients of the community health center, such as: asthma triggered by mold from leaky ceilings or rodent infestation; lead poisoning from paint not removed; burns caused by families heating apartments with stoves; and children who suffer due to insufficient nourishment� the patients of this community health center were referred by the medical residents to the law students for assistance� the law students and the medical residents were trained together to practice an interdisciplinary and holistic approach to their patients/clients� the program was planned jointly by me and iman sharif, m�d�, m�p�h�, who was then associate director of residency training in social pediatrics and associate professor of clinical pediatrics at the albert einstein college of medicine/ children’s hospital at montefiore hospital� dr� sharif had initiated the collaboration; she had heard about medical-legal partnerships and wanted to start one with the social pediatric residents at the community health clinic as the medical partner� she contacted the clinical faculty at nyu school of law and, as a result, i began working with her to plan the program� as part of developing the program, dr� sharif and i had to learn to collaborate, including understanding each other’s language, culture, ethics, professional values, and approaches to our clients/patients� in the clinic seminar, the law students and medical residents learned together� they met for eight two-hour joint seminars over the course of the law school semester, covering such topics as: collaboration and interdisciplinary work; ethics and confidentiality; asthma and environmental triggers; substantive law training on advocacy; early childhood education advocacy; lobbying training; holistic advocacy; and health law� the joint seminars were co-taught with dr� sharif� for each joint seminar, the law students and medical residents were given readings and learning objectives� seminar speakers included practicing doctors, ethicists, lawyers, social workers, and leaders from child advocacy and legal advocacy� the fieldwork had a three-fold approach: 1) direct client representation; 2) education of the medical residents and other health professionals about how to identify legal issues and incorporate advocacy into their treatment plans, as well as education of the clients/patients about their legal rights; and 3) identifying and exploring health care issues and presenting interdisciplinary strategies to address the issues� for the direct client representation, procedures were implemented to enable the medical residents and faculty at the outpatient community health center to refer patients to the law students for legal advocacy� each week, law students provided a free legal clinic for clients referred by the medical residents� a joint electronic account was created to allow the doctors to schedule the legal appointments for their patients, after obtaining the consent of their patients� legal assistance was provided on such areas as housing, government benefits, education and other the opportunities and challenges of an interdisciplinary clinic 171 issues that had an impact on the family’s health� before the fieldwork began, we discussed with the medical residents areas in which the law students could provide legal services and those that they could not (e�g�, if the patient wanted to sue the doctor or needed representation in a lawsuit by the hospital for payment of a medical bill)� although we tried initially to limit our legal services to a few areas (to enable the law students to develop expertise in those areas), they were expanded to better serve the needs of the clients in a holistic manner�25 in addition to the joint seminar and the referral of cases, there were other parts of the collaboration� the law students developed policy projects by identifying and exploring health care issues and presenting interdisciplinary strategies to address those issues; students presented those policy projects at a joint seminar of the law students and medical residents� the law students and medical residents, after receiving joint training on how to lobby legislators, participated in an allday lobbying effort of state legislators at the new york state capital in albany, new york on an issue affecting their patients/clients� at the beginning of the semester, the law students and medical residents together observed proceedings in housing court� in addition, there were a few informal gatherings outside of class to help build rapport and relationships� iv. opportunities there are many opportunities and advantages presented by interdisciplinary clinics26: for the students and professionals involved in the collaboration; for the clients/patients who are better served; for the faculty who create and participate in the interdisciplinary clinic; for the professions and educational institutions; and for the pursuit of justice�27 “…[i]nterdisciplinary teaching and practice can promote collaboration, communication, cultural awareness, ethical understanding and justice�”28 these interdisciplinary clinics also address concerns about the narrowness of legal education and medical education raised in reports issued by the carnegie foundation for the advancement of teaching�29 the opportunities in this section are subdivided into those applicable to students, clients and faculty; many of these opportunities apply to more than one of these categories� 25 as discussed in section v (c), one of the challenges for the clinic was getting the students ready to represent clients in a variety of subject areas� 26 some of the opportunities and challenges in interdisciplinary projects and classes are also applicable to interdisciplinary clinics� for very helpful discussions of the benefits and barriers to interdisciplinary law school courses, see kim diana connolly, elucidating the elephant: interdisciplinary law school classes, 11 wash� u� j�l� & pol’y 11 (2003) and janet weinstein, coming of age: recognizing the importance of interdisciplinary education in law practice, 74 wash� l� rev� 319 (1999)� for a discussion of an interdisciplinary training program for law students and emergency medicine residents on domestic violence, see antoinette sedillo lópez et al., a medical/legal teaching and assessment collaboration on domestic violence; assessment using standardized patients/ standardized clients, 14 ijcle 61 (july 2009)� 27 for other articles that discuss some of the advantages and disadvantages of interdisciplinary clinics, see, e�g�, luppino, supra note 8, at 163-179, 201-218; jones, supra note 7, at 309-313; voyvodic and medcalf, supra note 9, at 116-27; schlossberg, supra note 9, at 199-206� 212-226� 28 tokarz, supra note 9, at 3� 29 william m� sullivan et al� carnegie foundation for the advancement of teaching, educating lawyers: preparation for the profession of law (2007); molly cooke et al, carnegie foundation for the advancement of teaching, educating physicians: a call for reform of medical school and residency (2010)� 172 international journal of clinical legal education issue 18 a. for students while there are many advantages for students in interdisciplinary clinics, there are six categories that i think are the most important� the first, and in some ways the most important, is the broadening of perspectives�30 the law students and medical residents learned from each other and appreciated the differing professional cultures and skills as well as the problem-solving approaches of the other profession�31 as described by professor connelly: legal problems are like elephants; examining them from only one perspective gives a distorted image of the whole� in order to understand legal problems, lawyers often need to examine them from the perspective of multiple disciplines� likewise, successful legal problem-solving sometimes means that lawyers need to be able to collaborate with other professional in order to address a client’s problems�32 the law students and medical residents began to understand what they had in common and not just what separated them� they learned about the roles, boundaries and limits of each member of the collaboration, as well as a familiarity with the knowledge base of the other profession� we specifically discussed some of the similarities in the two professions, including the shared set of core social and ethical values (including shared respect for the individual, the commitment to reason, and using experience as a basis for decision-making); valuing of professional autonomy and decision-making; the primacy of serving their patient’s/client’s interests; the fiduciary obligation each owes to their patient/client; and the aspiration of each profession to provide services to the poor� to highlight the similarities, we also used an exercise33 in which the law students and medical residents wrote anonymously on color-coded cards (so that we could know whether the cards were completed by a law student or a medical resident) the attributes of a “good” lawyer; the attributes of a “good” doctor; the attributes of a “bad” lawyer; and the attributes of a “bad” doctor� the results of these cards were written on the blackboard so that all could see the responses; the similarities in the positive attributes for the two professions were surprising to many of the students and helped to emphasize the commonalities between the two professions�34 this broadening of perspective can lead to what is described as a higher level of cognitive 30 the broadening of perspectives in interdisciplinary clinics has been noted by many commentators in a variety of different types of interdisciplinary clinics� see, e.g�, ezer et al., supra note 3, at 32� interdisciplinary clinics “offer many opportunities for the acquisition of valuable skills by means of collaboration with and exposure to the culture, professional strengths, and limitations of other disciplines in a group setting�” margaret martin barry et al., clinical education for this millennium: the third wave, 7 clinical l� rev� 1, 69 (2000)� 31 “with these diverse cultures and problem-solving approaches, collaboration between these professionals [lawyer, doctor, social worker and other professionals in a medical-legal collaboration] results in a formidable team that provides holistic interventions�” marcia m� boumil, debbie f� freitas and cristina f� freitas, multidisciplinary representation of patients: the potential for ethical issues and professional duty conflicts in the medical-legal partnership model, 13 j� health care l� & pol’y 107, 123 (2010)� 32 connolly, supra note 26, at 13-14� 33 this exercise was developed by dr� marc schwartz and myself for a class that we co-taught for law students and medical students at new york university; the name of the course was “doctor-patient, lawyer-client: the nature of professional relationships�” 34 some of the positive traits of both professions were empathetic, compassionate, good listener, ethical, caring, and zealous advocate� the results of the card exercise are on file with the author� the opportunities and challenges of an interdisciplinary clinic 173 processing, what some psychologists define as “wisdom�”35 particularly for the law students, they learned the skills and values to function in a variety of forums (i�e�, not just litigation) and learned skills and approaches from the other disciplines�36 it helped the law students and medical residents to move away from the narrow approach of seeing the patient’s/client’s issues as only medical or legal ones; it helped remove the “blinders” and minimize the “silo” effect� they also began to appreciate the shared professional values37 and more broadly viewing medical and legal problems in their larger social context�38 as stated by one of the medical residents, this interdisciplinary clinic: provided the invaluable opportunity of learning from each other� as doctors and lawyers we seldom get the chance to gain knowledge and insight into each other’s fields and professions� most importantly, the legal clinic provided the unique and excellent venue to be able to serve as better advocates and lend a helping hand to our patients� in short, the experience gave both doctors and lawyers the ability to work together for change�39 to help facilitate the broadened perspective and ease into the collaboration, dr� sharif and i created case examples that were used in our first joint seminar� while the class discussion became animated (and heated), it was, upon reflection, critical to the success of our collaboration� as described by one of the medical residents: the opening discussion that involved a case of potential child abuse was very revealing to me� i have been so engrossed in the medical world for so long, that their [law student’s] opinions and approach were really shocking at first� but in the end, it was a great opportunity to appreciate the complexities of such situations�40 35 “it is this higher level of cognitive processing – what some psychologists define as ‘wisdom’ – that we see as the ultimate outcome of interdisciplinary higher education�” weinberg and harding, supra note 10, at 23� 36 for example, in the interdisciplinary program in south africa of integrating palliative care, the law students were trained in facilitation skills in order to be able to run the workshops for hospice caregivers� ezer et al., supra note 3, at 29� 37 an article about an interdisciplinary course for law students and medical students discusses discovering the shared goals and values in the two professions as part of the process of designing the course� “the similarities in our professions gave us faith that, despite our differences, we could create something special – a learning experience for law and medical students that would not only bring a different discipline into their classroom, but also could help them to re-envision their roles and responsibilities as professionals�” elizabeth tobin tyler, teaching social justice and health: professionalism, ethics and problem-solving in the medical-legal classroom, 38 j�l� med� & ethics 701, 702 (fall, 2010)� 38 interdisciplinary collaborations “challenge students to consider medical and legal problems in their social contexts as well as to broaden their concepts of their professional roles and limits�” elizabeth tobin tyler, allies not adversaries: teaching collaboration to the next generation of doctors and lawyers to address social inequality, 11 journal of health care law & policy 249, 275 (2008)� 39 quotations of the medical residents and law students cited in this article were from reflection papers submitted by the law students, from written comments, and from surveys of the medical residents and law students that were completed in the first joint class and in the last joint class to evaluate the collaboration� the reflection papers, surveys and other written comments are on file with the author or dr� iman sharif, the co-teacher of the seminar� 40 id� 174 international journal of clinical legal education issue 18 the law students spoke of their loyalty to their client, who was the parent, and felt bound by the duty of confidentiality to their client to not reveal to the doctors what the client had told them about what the doctors might consider potential child neglect by the parent who was not the client of the lawyers �41 the doctors discussed their responsibility to the entire family and were initially disturbed by what they saw as a narrow focus of the law students of preserving the confidentiality of the mother (the lawyer’s client) over the possible health needs of the child and risk to the child� the law students explored the possible conversation with the client about consequences and possible actions which helped the residents understand more of the nature and parameters of the lawyer-client relationship� the discussion in that first class became a bonding experience for all, and one referenced in many other of our joint sessions as a mirror to help each of the professions appreciate the other� the second benefit is that it helps to build trust, understanding and respect amongst the members�42 the third is that it teaches the importance of collaboration�43 the law students and medical residents in our joint seminars were taught skills to help them collaborate successfully�44 in the joint seminar, we first discussed their own experiences in collaboration, including what they had found to be helpful in successful collaborations and what had been problematic� we also highlighted, based on assigned readings45 and their comments in the class discussion, some things that can be done to improve collaboration, including the value of listening and effective communication; understanding and appreciating the “other,” including the competencies of each profession; clearly stated role expectations; attitudes of respect and openness; learning skills for shared decision-making; and the importance of setting boundaries at the outset of the collaboration� (for our collaboration, one particular boundary issue was differing approaches to confidentiality and how it could limit what client/patient information could be shared between the 41 in new york, as in most states in the united states, lawyers are not mandated to report suspected child abuse and neglect while doctors are mandated reporters� for a discussion of the challenges posed by the differing mandated reporting requirements of lawyers and doctors, see, e.g., boumil et al., supra note 31, at 124-127; anderson et al., supra note 9� 42 in a multi-disciplinary program in which the child advocacy clinic at the university of new mexico is the legal partner, a curriculum was developed and implemented to build trust amongst the various team members� see norwood and paterson, supra note 21, at 363-64� this clinic is part of a multi-disciplinary program that includes law students, pediatricians, social workers, child development specialists, psychiatrists, case managers, nurses, program administrators, community planners, program evaluators and educational technology experts� id� at 356� 43 “in order to creatively solve problems, attorneys must focus not only on a client’s legal issues, but also the client’s needs that can best be met through professional interdisciplinary collaboration� to be effective as creative problem solvers, students must learn the art and skill of collaboration� however, most law school curricula, including clinical courses, do not recognize the value of collaboration as a skill for problem solving, and therefore do not emphasize it in their teaching�” schlossberg, supra note 9, at 203� 44 janet weinstein, in an article on interdisciplinary education in law practice, identifies five skills for effective collaboration: communication skills; knowledge of non-legal resources; awareness of self and others; an understanding of and appreciation for group process; and leadership skills� janet weinstein, coming of age: recognizing the importance of interdisciplinary education in law practice, 74 wash� l� rev� 319, 335-40 (1999)� 45 see sue bryant, collaboration in a law practice: a satisfying and productive process for a diverse profession, 17 vermont law review 459 (1992-1993)� the opportunities and challenges of an interdisciplinary clinic 175 doctor and lawyer�)46 the fourth advantage of an interdisciplinary clinic is what i call a “window�” it is a window in two very different ways� one is that it can help students prepare for the “real world” by modeling the experience of practicing law, which increasingly uses interdisciplinary collaborations� the other, and what i think is more important and unique to interdisciplinary clinics, is that it can cause law students to reconsider their own roles as lawyers and advocates� also, it helps each of the professions form (and change) their views of their own profession and their roles within it� the fifth point is that the collaboration can be a more satisfying and fulfilling professional and personal experience for all� the sharing of experiences and approaches to assist clients/patients can result in increased satisfaction� it can also result in increased comfort in being able to learn from and rely on the other professionals� collaboration can help reduce the stress that lawyers can experience�47 from their comments in class as well as their written reflections, it was apparent that it was a more fulfilling model for each of the professions involved� a typical comment by one of the medical residents was that the collaboration “provided the invaluable opportunity of learning from each other…� this experience gave both doctors and lawyers the ability to work together for change�”48 connected to the collaboration amongst the students and residents, there was also collaboration between the faculty teaching the seminar, with the faculty modeling for the students and medical residents� finally, interdisciplinary clinics offer more creative and better service for the clients�49 it can result in the professionals being engaged in more creative problem-solving to promote justice�50 collaboration empowers the professionals to serve their clients/patients in new and better ways� as stated by one of the medical residents in the clinic, it “helped me to realize that the things we learn about our patients are often limited by what we are willing to explore and the resources that we have at our disposal�”51 b. opportunities for clients one of the most important advantages of interdisciplinary clinics is improved service for the 46 for a detailed discussion of various ethical issues in a collaboration between lawyers and doctors, see paula galowitz, jerome tichner, paul r� tremblay and steven d� blatt, ethical issues in medical-legal partnership (chapter six), in poverty, health and law: readings and cases for medical-legal partnership (elizabeth tobin tyler, ellen lawton, kathleen conroy, megan sandel, and barry zuckerman eds�, carolina academic press, 2011)� 47 see galowitz, supra note 11, at 2128� 48 see note 39, supra, for a discussion of the comments of the law students and medical residents� 49 “an interdisciplinary model also has the potential to encourage lawyers to create innovative programs that not only respond to the perceived needs of client communities but also actively involve clients in bringing about social change�” brustin, supra note 13, at 794� 50 in her article on interdisciplinary education in law practice, janet weinstein discusses five skills needed for collaborative problem solving: communication skills; knowledge of non-legal resources; awareness of self and others; an understanding of and an appreciation for group process; and leadership skills� weinstein, supra note 26, at 335-341� some of the professions involved in interdisciplinary collaborations, such as social work, teach these skills in professional school� see voyvodic and medcalf, supra note 9, at 123� 51 see note 39, supra, for a discussion of the comments of the law students and medical residents� 176 international journal of clinical legal education issue 18 clients�52 the complementary skills of the other professions can help the lawyer serve the client,53 as can the legal information assist the doctor to be a better medical provider and advocate for his or her patients� for example, the medical residents became more familiar with laws affecting their clients (such as educational services for children with special health care needs and eligibility for disability programs) and developed practical skills for advocating for their patients to receive the services to which they were entitled� they also felt more knowledgeable and comfortable exploring with their patients how the realities of their patients’ lives (such as housing conditions) impacted on their health� for the law students, they understood the medical conditions that could impact on their clients’ disabilities and were able to use that information to argue more persuasively for the benefits for which their clients were eligible� as discussed in the previous section on opportunities for the students, law students are helped to move from the narrow approach of seeing the client’s “issues” as only legal ones and all of the students and professionals are better trained to see the clients/patients in a more holistic way, understanding the roles that each profession can bring to help identify the legal and social barriers that affect the health of their clients/patients and that impact on the social issues underlying inequalities in health� as noted by one of the law students, the clinic was “helpful in exposing me to different ways that doctors and lawyers can collaborate to make inroads to achieving health outcomes for vulnerable populations…[and] ensure that laws that promote health and safety are being enacted and followed�”54 moreover, in the mlac, it seemed to be easier for the clients to establish relationships with the law students since someone with whom the client already had a relationship made the connection to the law student� research about the impact of interdisciplinary collaborations on clients would reveal if there are other benefits for them� c. opportunities for faculty teaching in an interdisciplinary structure has benefits that parallel those for the students described in section iv (a): it can broaden the perspectives of all of the participants so that each of the professionals has a better understanding of the other’s attitudes and values, approaches to problem solving, language, and ethical constraints; help build trust, understanding and respect amongst the members; provide a “window;” result in better and more creative services for the clients; and can be more personally satisfying� teaching in an interdisciplinary structure also has unique additional advantages for the faculty� one is that it helps emphasize the importance of teaching creative problem-solving and collaboration� in the seminar and in the fieldwork, the students can be helped to see the issues that the client faces in the broader context of the client’s life and the students can be helped “to think about prevention of future problems, not just solving current ones�”55 it also helps the faculty to expand the approaches to assist students’ learning through collaboration with other disciplines� 52 doctors and lawyers working together can improve the health outcomes for the patients/clients� see, e.g., boumil et al., supra note 31, at 137� 53 “a multidisciplinary approach provides an ideal way to address complex social issues such as domestic violence, concerns facing the elderly, community economic development, and poverty more generally� professionals from different disciplines can use their skills to develop more comprehensive solutions for clients�” brustin, supra note 13, at 794� 54 see note 39, supra, for a discussion of the comments of the law students and medical residents� 55 see tobin, supra note 38, at 275� the opportunities and challenges of an interdisciplinary clinic 177 i personally found that the collaboration with dr� sharif in our development and plans for the seminar and fieldwork, as well as in co-teaching the seminar, resulted in unexpected beneficial results� we initially had to explore and try to understand our different professional values and norms, including language and approaches to issues� fortunately we had given ourselves time to develop our relationship and plan for the challenging issues; we started our planning approximately a year before the clinic began� not only did we need to plan for our law students and medical residents but we also had to plan for our own collaboration and co-teaching� we openly talked with the law students and medical residents about this interdisciplinary experience as being new and approaching things together as we sorted out the opportunities and challenges� this had the effect of freeing us all to be more open and transparent� for me personally, this transparency and the creativity in designing and implementing this interdisciplinary clinic resulted in a much more satisfying teaching experience� v. challenges there are many challenges in designing and implementing an interdisciplinary clinic�56 however, there are ways to minimize the challenges and enhance the opportunities� one important way is to spend sufficient time with the other professionals in planning the clinic and the program� many of the challenges can be anticipated and addressed before the clinic officially begins� the design of the program can help implement successful collaborations� “interdisciplinarity …is not a ‘magic bullet’…; collaboration must be taught as a skill, and the needs of the individuals who will be collaborating must be anticipated and met with information and appropriate training�”57 the challenges in this section are subdivided into those applicable to students, clients and faculty; many of these challenges apply to more than one of these categories� a. challenges for students while there are many challenges in interdisciplinary clinics, there are five categories that i think are the most significant� the first (and an especially pervasive) one was the differences in the language, customs, and norms of the collaborating professions� each needed to learn and appreciate the other� since dr� sharif and i understood this to be key to the success of the collaboration, we each spent time discussing this in our individual seminar sessions before we started our joint one and addressed this directly in our first joint class� dr� sharif and i developed the case examples described in section iv(a) to highlight these issues� the second category is that of ethical obligations and professional values� there are differences in ethical obligations such as confidentiality, conflicts of interest and the professional independence of the lawyer that must be addressed� while dealing with them can be challenging, they are not barriers, particularly if the anticipated issues are discussed and addressed amongst the various professionals when forming the collaboration�58 guidelines and protocols for the anticipated ethical issues (such as what information received from the client can be shared with the other 56 barriers to interdisciplinary work include the lack of skills training; the narrow and competitive nature of legal education and practice; different professional cultures; and personality issues in law students and lawyers that can interfere with collaboration� see weinstein, supra note 26, at 328-351� 57 voyvodic and medcalf, supra note 9, at 116� 58 see galowitz et al., supra note 46� 178 international journal of clinical legal education issue 18 professionals) should be drafted together as part of the development plan� the third area is student discomfort and anxiety� it can be very challenging for law students in any clinic to learn about and become comfortable with a range of skills and substantive areas of the law� any discomfort and possible anxiety can be compounded by working with other professions when the students may be unsure of their own professional roles and values�59 to minimize this discomfort, dr� sharif and i found it very helpful to have an informal gathering early in the semester for the law students and medical residents to get to know each other� in addition, a curriculum with hypothetical examples can be created to help build trust and understanding amongst the various professions and members of the interdisciplinary clinic�60 fourth, the nature of the professional norms in law school can create challenges� law students tend to be more competitive (which would also make it more difficult for them to collaborate)61 and that they have less experience in collaboration than other professions (such as students in business school)�62 collaboration as an important skill and value for professionals needs to be directly addressed� in the mlac, as mentioned in section iv (a), we discussed collaboration in a joint seminar, including what interferes with collaboration and what can be done to improve our abilities to collaborate� finally, there are many logistical and situational challenges in an interdisciplinary clinic�63 for example, the law school schedule and the definition of a semester differ substantially from medical schools and residency training programs�� another challenge is that collaboration and interdisciplinary work can take longer and therefore appear to be less efficient� b. challenges for clients for the clients, there can be confusion about the roles and approaches of the various professions� the client may not be sure which issues should be addressed with which professional� in addition, there may not be consistent information or opinions conveyed to the client by the various professionals who are interacting with the client� the client may also have unclear expectations� research about the impact of interdisciplinary collaborations on the clients would reveal any other drawbacks� c. challenges for faculty teaching in an interdisciplinary clinic has challenges that parallel those for the students described in section v (a), including differences in language, customs and norms of the profession; ethical 59 some law students may display resistance and discomfort with collaboration� see voyvodic and medcalf, supra note 9, at 121-23� 60 various strategies to build and enhance the interdisciplinary relationship are discussed in the article by j� michael norwood and alan paterson including: learning from each other to understand and appreciate the diversity of professional cultures and problem-solving approaches of the members of the team; learn and understand the roles, boundaries and limits of each member of the team as they relate to the purposes of the multi-disciplinary project; and create a formal curriculum in order to build understanding and trust amongst the members of the team� norwood and paterson, supra note 21, at 362-366� 61 see weinstein, supra note 26, at 340-44� 62 see schlossberg, supra note 9, at 216-19� 63 some of these logistical and situational challenges are discussed in section v (c), challenges for faculty, infra. see also, luppino, supra note 8, at 201-16� the opportunities and challenges of an interdisciplinary clinic 179 obligations and professional values; discomfort and anxiety; the nature of the professional norms in the law school; and logistical and situational issues� it can be difficult and uncomfortable to step out of one’s comfort zone�64 each profession has its own emphasis on independence of professional judgment�65 each (including faculty and students) needs to learn to understand and appreciate the other� the ethical requirements of each of the professions need to be addressed,66 particularly the varying definitions of who is the “client,” confidentiality, conflicts and capacity of the person to make decisions� scholarship has addressed ways to deal with the confidentiality requirements of the various professions in interdisciplinary collaborations, particularly the confidentiality requirements of lawyers, by obtaining informed consent from the client67 or creating a confidentiality “wall” so that there are boundaries between the professions relating to access to certain client information�68 as with many other challenges, ethical and professional value issues can be anticipated and dealt with in the design and planning of the curriculum, including developing protocols to address them�69 as to the assumptions that may be made about the “other” professions in the collaboration (with some of those assumptions being negative stereotypes), it can be helpful to surface them in a nonthreatening way� one example is the exercise described in section iv (a) in which we asked each student to write the positive attributes of lawyers and doctors as well as negative characteristics of each of the professions� we then discussed those attributes and characteristics and helped surface their assumptions in a non-threatening format� there may also be different pedagogical goals for the students and different learning experiences in the relevant professional schools� one example is that law school emphasizes getting law students to think like a lawyer compared with a business school focus on problem solving�70 an issue that i found particularly difficult was getting the law students ready to be “lawyers” in many different kinds of subjects, approaches and practice� while getting students comfortable in a variety of subject areas can be a challenge in any clinic that practices holistic advocacy, it can be more difficult in an interdisciplinary clinic since the students need some knowledge about the 64 “collaborative interdisciplinary medical-legal teaching, like professional practice is challenging� there is no question that there are times when sticking to one’s comfort zone and chosen field would be much easier�” tobin, supra note 37, at 705-06� 65 “independence of professional judgment is the hallmark of a profession, regardless of whether that profession is medicine, social work, or law� when professionals who are educated and trained differently, practice different trades, and follow different ethical codes combine efforts to provide one holistic remedy, each may be required to compromise some of the professional autonomy that each practitioner typically exercises�” see, e.g., boumil et al., supra note 31, at 123� 66 some of the ethical issues and professional conflicts in medical-legal collaborations is discussed in the scholarship� see, e.g�, boumil et al., supra note 31; norwood and paterson, supra note 21; galowitz et al, supra note 46� 67 see, e.g., galowitz et al., supra note 46� 68 see. e.g., st� joan, supra note 23� 69 it has been suggested that there need to be changes in each of the relevant professions to support interprofessional collaboration; there should be an explicit standard in each of the profession’s standards or codes of conduct that support interprofessional collaboration� linda morton, howard taras and vivian reznick, encouraging physician-attorney collaboration through more explicit standards, 29 hamline j� pub� l� & pol’y 317 (2008)� 70 see jones, supra note 7, at 311-12� 180 international journal of clinical legal education issue 18 other profession or professions with whom they will be collaborating� there were two things that dr� sharif and i did in the mlac to help address these challenges� the first was to front-load the clinic to spend the first few weeks discussing the substantive law areas and professional skills, including a simulation of a client interview for which the law students reflected and received feedback to prepare them before seeing their first clients� i was also at each of the fieldwork clinics when the law students interviewed their clients so that they could check-in with me before the interview was completed� this ensured that critical issues, such as deadlines and statute of limitations, weren’t missed� there are several logistical and institutional challenges in an interdisciplinary clinic, such as: scheduling of joint classes that are convenient for each of the professions; different academic calendars; defining the criteria for the credits and grades (if graded); and the allocation of tuition between or among the relevant schools�71 these issues need to be anticipated as much as possible and dealt with as part of the planning� as more interdisciplinary programs are created, it should become easier for the institutional challenges to be addressed� not surprisingly, it takes more time and energy for the faculty to develop and teach an interdisciplinary clinic than one that is not interdisciplinary� there is also a steep learning curve for the faculty and for everyone involved in the clinic� while the learning curve is included in the section on challenges, it also is part of the opportunities of such a clinic, and can lead to exciting ways to teach, learn and provide services for clients� conclusion an interdisciplinary clinic has many different advantages for the students, faculty, professionals, clients and the professional schools� while there are challenges for all involved, they are far outweighed by the multiple benefits� i have found that all, including myself, were enriched by the interaction with our medical colleagues� the clinic also helped model for the law students and medical residents the value of interdisciplinary approaches to help meet the needs of our clients/ patients� interdisciplinary clinics can “help develop a cadre of future lawyers with the sensitivity and expertise to play a leading role in addressing complex health and human rights issues�”72 as stated by one of the medical residents in the clinic, it provided the invaluable opportunity of learning from each other� as doctors or lawyers we seldom get the change to gain knowledge and insight from each other’s fields and profession� most importantly, the legal clinic provided the unique and excellent venue to be able to serve as better advocates and lend a helping hand to our patients� in short, this experience gave both doctors and lawyers the ability to work together for change�73 for me, it is a very exciting way to teach, for students to learn, for clients to be served, and to help all of the participants reflect on the role of law and being a professional� 71 for a discussion of additional challenges, see, e.g, jones, supra note 6, at 310 – 313 (discussion of administrative/ financial impediments, cultural and ethical impediments); luppino, supra note 8, at 206-215 (issues include managing and addressing student expectations, and helping the professional teams work together)� 72 ezer et al., supra note 3, at 33� 73 see note 39, supra, for a discussion of the comments of the law students and medical residents� from the field reflecting on reflective practices in clinical legal education victoria roper, northumbria university, uk the annual international journal of clinical legal education conference took place on 28th30th november at monash university in melbourne, australia. the day before the conference opened, a well-attended pre-conference workshop on ‘reflective practices in clinical legal education’ was held at monash university’s clayton campus. this article provides a summary of the key highlights of the day. session 1 reflective practices in clinical legal education the workshop was opened by associate professor rachel spencer of monash university and professor susan brooks of kilne school of law, drexel university, philadelphia. professor susan brooks explained they intended the day to take the form of a conversation. a show of hands poll revealed there was a real mix of people in attendance. delegates ranged from in house clinicians, to people involved more widely in externships and pro bono. there were also people whose teaching was outside of clinic and ‘real’ practitioners present. delegates were asked to introduce themselves in pairs and to explain to one another what they hoped to get out of the day. the pairs were then asked to volunteer to the wider group what they had discussed. this plenary discussion revealed a wide variety of aspirations for the day, which included: · learning how best to get students to reflect on their own values and assumptions rather than just commenting on what they ‘did’; · taking a step back in order to unpack further why reflection is important; · learning about different reflective methods and how to respect diversity; · exploring ways of encouraging high quality reflection and translating that into reflective writing – this clinician noted that reflective insights in oral debriefs were often not translated into strong written reflections; · wanting to get better at providing objective feedback on student reflections; · learning about new ideas for how to assess reflection; · wanting to explore the idea of reflection and mental health and resilience, and whether they tie together; · acknowledging that there are difficulties with reflection because within a team of clinicians there are varying conceptions of what ‘good’ reflection or ‘good enough’ reflection are; · looking forward to getting to know more about interrelationship between reflective practice and competence; · seeing if there is a support for reflection in social science theory; and · exploring the relationship between critical thinking and reflection. susan explained that she had been interested in reflection a part of a larger skill set around relational skill sets and lawyering. in particular, she was interested in habits of mind and tools that we can offer students to help enable them to their work as individuals within a wider social context. susan explained that a while ago she across an article of rachel spencer’s entitled ‘holding up the mirror’[footnoteref:1], which made her realise there was someone who was thinking about these things deeply. she later visited rachel in australia to explore their common interests further. [1: r.m.a. spencer, ‘holding up the mirror: a theoretical and practical analysis of the role of reflection in clinical legal education’ (2012) 18 international journal of clinical legal education 181. ] rachel explained the introductory exercise in pairs we had just undertaken was an edited version of something she has done in reflection classes with students for a number of years. she explained how she liked to build her students ability to reflect through a scaffolded process. firstly, she gets students to talk to one another (like we had just done) to build their confidence, before they may be invited to share their thoughts with her as the supervisor or the wider group. this is important for establishing a relationship of trust between supervisor and the students and between the students; we cannot expect this trust just to exist automatically. we all have students who write amazing reflections but they would not necessarily share these insights in a large group discussion. it is important to recognise the diversity of students and a scaffolding approach compliments this. it was noted that clinical legal education is about learning by doing and reflecting. reflecting is important, but the word ‘reflection’ can be problematic and off-putting. many people, both colleagues and students, think reflection is ‘navel gazing’ and not for them. it was suggested that there are perhaps other words we can use to describe for reflection which may make it more accessible (discussed further later). rachel went on to note that she tells her students it is great that they are doing clinic or an externship, but that experience alone does not produce competence. many practitioners run into trouble because they are not reflective enough about what they are doing. there is a clear contrast between classroom learning (simulated, replicable, low risk etc.) where the central interest is the student, and workplace learning (unpredictable, messy, high risk etc.) which involves competing interests. in workplace learning the supervisor is not just there to serve the needs of the student, and the student is not the centre of the universe. much more direction may be given in the classroom – this is not the case in workplace. rachel tells her students that everything that happens in the workplace is a learning opportunity but that they need to become opportunistic learners. she believes that there is a necessity to teach emotional intelligence and that this is intrinsically linked to reflection. susan then went on to discuss fields of transformation. three dimensions we are engaging in all the time – personal, interpersonal, and systemic. for example, she gets students to think about how their interaction with their client is informed by the wider social context and to ask themselves how it shapes that interaction. rachel noted that it was widely becoming accepted that a law student now needs more than just a good knowledge of law. in this era of artificial intelligence, the human touch is what is important. technology may be able to provide legal knowledge but it cannot relate to a client as a person can. students therefore need to be able to establish a relationship of trust with clients. it was noted that students coming into clinic can sometimes have a preconception that they need to be detached in order to be a good lawyer. they then become confused when we tell them that they need to embrace feelings in reflection. students need to learn that emotional intelligence and emotional involvement are two different things. susan noted she was really interested in creativity and how emotions affect a person’s thinking. that we should be aware of the two sides to our brains and that effective legal work requires a person to engage both and ‘bringing our whole selves’. rachel then went on to note that competencies were linked to emotional intelligence (empathy, self-confidence, innovation, self-control, conflict management etc.). emotional intelligence has been described as the ability to perceive your own and others’ feelings and emotions, and to use this to guide your actions.[footnoteref:2] in clinical legal education, this might involve recognising a client’s anger and that how they feel about something will affect their decision-making. any decision we make naturally involves emotions, we cannot disconnect logic from emotion entirely. susan clarified that we need not only to teach our students to understand client emotions, but also their own emotions too. we can make more intelligent choices when we understand how our emotions influence our decision-making. [2: john, d. mayer and peter salovey, ‘what is emotional intelligence?’ in salovey and sluyter (eds.), emotional development and emotional intelligence: educational implications (new york: harper collins, 1997).] rachel then turned the focus of the discussion to analysing what reflection is. it was noted that reflection is something people have been thinking about for a long time – there are millions of results on google if you do a search. it is impossible though to give a universal definition, as reflection is something that means different things to different people. in 1993, there was an article written by atkins and murphy which noted that a lot had been written about reflection but it still lacked a clear definition.[footnoteref:3] whilst commentators tend to use different terminology and detail to discuss the reflective process, atkins and murphy identified commonality that could be broken down into three key stages: [3: sue atkins and kathy murphy, ‘reflection: a review of the literature’ (1993) 18(3) journal of advanced nursing 1188. ] 1. stage 1 – awareness of uncomfortable feelings. this is the disorientating moment or moment of surprise or discomfort. this is one of the significant differences between classroom learning and workplace learning. 2. stage 2 – critical analysis of the situation. this involves an examination of feelings and knowledge. it is necessary at this stage to get the student to think about how the experience was for them, but then also consider it from the perspective of the client (what was going on in the client’s head etc.). 3. stage 3 development of new perspective, leading to an outcome of learning. this is the stage where the student should be asking did it go well? why did it go well? how can i replicate this? what would i change? it was noted that students often only become aware of their own privileged position from undertaking clinic and that clinic could therefore enhance a student’s self-awareness. the room then split into groups again to discuss our own reflective practices. a wider plenary discussion followed and a number of interesting points were mentioned, including: · one person favoured giving students articles to read to encourage them to refer to literature and produce academically rigorous pieces of work that are not just introspective. · it was noted that requiring students to consider multiple perspectives could be particularly useful. there may be more ways of doing this earlier in a degree so it is not just suddenly introduced in clinic. · a speaker queried how much emphasis should be placed on the ‘discomfort’ moment in student reflections. how much emphasis on the physical sensation of discomfort? · another person emphasised the importance of creating a safe space for reflection. for example, reflections are marked but it is ok for a student to acknowledge their failures. · it was highlighted that first year students are often far more in touch with their emotions than final year students. this is a barrier to reflection as usually it is our final year students we are asking to reflect. · one person’s practice involved getting first year students to write themselves a letter that they were then required to reflect on in a later year of the degree. it was noted that it was possible to include relational competences in other modules, and to have a learning outcome linked to reflective practice. students can be required to think about a future plan of action and to self-evaluate and assess in both clinical and non-clinical settings. rachel noted that it was possible to ground this in theory. schon’s “the reflective practitioner” discusses the distinction between reflection on action (e.g. keeping a reflective journal) which may, in time, lead to being able to reflect in action i.e. the ability to critique what you are doing while you are doing it.[footnoteref:4] [4: donald, a. schön , the reflective practitioner: how professionals think in action (new york: basic books, 1983)] it was highlighted that there were two main forms of reflection (1) oral reflection/debriefing and (2) written reflection. of key concern to clinicians is how to help students achieve their full reflective potential. the following reflective exercises were discussed as ways of encouraging students to reflect: · start with oral reflection or a debriefing in a pair or small group. gradually build this up so the students have to discuss matters with a wider range of people. next time start with a slightly bigger group. gradually build this up until the student is comfortable discussing matters with a larger group and you as the supervisor. · challenge students to think about what they want to get out of clinic and what their values are. encourage them to talk about personal issues too. · ask the students to undertake a strength finder exercise at the start of the clinic and then get them to reflect on this at the end of the semester. · challenge students to see things from a different perspective. a good way to do this (which was demonstrated in the workshop) was to show the students an ambiguous picture that they may interpret as two different things. the example used in the workshop was a picture that may have been either a vase or a face.[footnoteref:5] this illustrates that people can be looking at exactly the same problem or set of facts but see them in a completely different way. this is a way of teaching perspectives. [5: see examples at: https://www.google.co.uk/search?ei=6b6lxkt8jrthxgpb9r2gag&q=woman+vase+optical+illusion&oq=woman+vase+opti&gs_l=psy-ab.1.0.0i22i30.2162.4578..5943...2.0..0.88.466.7......0....1..gws-wiz.......0i71j0j33i21j0i13i30.qm4m6oywi18 (accessed 15 march 2019). ] · give students a list of traits and get them to pick five they already have and that will be useful, and then ask them to choose five they need to develop. then can revisit these later in their journal writing. · ask the students to prepare a critical incident report when they have been surprised or learnt something from an experience. rachel helpfully also gave twelve recommendations based on her research with students, which had included focus groups: 1. advise students that feelings of discomfort are not unusual; 2. provide an introductory session about what is required in good reflective writing. provide examples (she uses good examples only); 3. assessment tasks should allow for rigorous discussion of articles on reading list. students can be tasked with reading articles and presenting back to the group so all group members have a greater understanding. 4. teach students about the skills inherent in the act of reflection. 5. discuss potential questions about reflection with students in class. yes, you should write in the first person etc. 6. confirm what reflections are confidential or negotiate otherwise. for example, explain that anything discussed in the classroom might be overheard, but nothing written and marked will be passed on to anyone else. 7. negotiate how oral sharing of experiences in class might occur, as students get anxious about reflective journals. 8. alleviate student anxiety by advising students to expect difficulty. 9. use reflection prompts such as: · have you questioned any of your prior beliefs? · have you been aware of any access to justice issues? 10. be mindful of student diversity and tailor sensitive feedback to individual students. 11. articulate our own ideas about emotional intelligence and professionalism. explain that not all lawyers will agree. 12. consider rebadging reflection as ‘clinical retrospective’, ‘placement analysis’ or ‘a reflective analysis paper’ to make it sound more accessible. session 2 reflection, emotions and student wellbeing the next session was led by associate professor kate seear of monash university, professor catherine klein of the catholic university of america and professor lisa bliss of georgia state university. the three acknowledge the contribution of professor paula galowitz who could not join them on the day but who has contributed to the planning of the session. kate started by explaining what they hoped to explore the ethical and moral dilemmas expressions of emotion pose. they also wanted to discuss what we might make of articulations of emotion for learning and to try to come to some consensus on what clinical supervisors should do to navigate emotions in clinic. it was discussed that lawyering practice expresses distaste for emotional vulnerability. notwithstanding, or perhaps because of this, there is a growing concern about mental health in the legal profession. it was noted that this is a very live debate in australia at present. interest had been piqued in the topic by a 2009 report, “courting the blues: attitudes towards depression in australian law students and lawyers”, which has been published by the university of sydney.[footnoteref:6] there is now a concern about the mental health of both lawyers and law students. the issue is very topical because in recent months two magistrates in victoria have committed suicide.[footnoteref:7] magistrates and judges are now talking about workload pressure and the importance of being more open about feelings. it was highlighted that emotions have to be scrutinised for their various potential consequences. emotions may shape our practice. for example, if we feel disgust towards a client, we may be less likely to help them. [6: university of sydney, courting the blues: attitudes towards depression in australian law students and lawyers (2009). available at: https://cald.asn.au/wp-content/uploads/2017/11/bmri-report-courting-the-blueslaw-report-website-version-4-may-091.pdf (accessed 15 march 2019). ] [7: see for example https://www.abc.net.au/news/2018-04-12/stephen-myall-magistrate-unrelenting-workload/9643950 (accessed 22 march 2019). ] the session then turned interactive and we were asked to discuss with our neighbour our own experiences in clinic and a time when we had felt a strong positive or negative emotion. the idea behind the exercise was that once we had confronted our own emotions in clinic, we would be in a better position to look outward to our students’ and clients’ emotions. this exercised utilised the scaffolding process we had earlier discussed. once we had talked in small groups, we were asked to write our emotion on a post it note and to put it on the whiteboard and there was then a group discussion. most delegates had focused on negative emotions (see image 1 below). common emotions experiences were: · frustration with self and with students. · anger students or supervisor may react with anger. it is sometimes necessary to deal with other people’s anger. · disappointment – for example with a judge in court or the legal system that has let a client down. there were some positive emotions like joy and excitement but these were in in the minority. image 1 – a selection of post it note emotions the discussion then turned to student emotions and how we deal with these. we again talked to those around us before discussing in the wider group. the following examples were explored in the subsequent plenary discussion: · one example involved a student failing an assignment. the student was angry about this and blamed the clinician, criticising the assignment. the clinician noted that the student’s anger caused her to be angry in turn. she had to manage her own anger, but then after the anger subsided she thought about the student’s criticisms. this led her to make adaptations to future assignments based on the feedback the student had given. · another person explained how one of their students became very frustrated in their tax clinic when their client failed to show up and provide information. the student was not in touch with their privileged position or sympathetic to the client. the clinician tried to emphasise to the student that 80% of lawyers are dealing with people who have problems and are less privileged than themselves. · one person explained how they had encountered an absence of student emotion when dealing with clients. they believed this was because the students were so fearful of saying the wrong thing they did not want to express any kind of emotion. it was noted that we do tend to teach students that emotion in law is bad, so perhaps we need to help them overcome this in clinic. the third workshop activity involved the room splitting into three groups. each group was assigned with an area to consider: · group a – teaching and planning for emotions; · group b – issues and challenges when teaching for emotions; and · group c – pedagogical priorities in the teaching of emotions. after each group had debated their particular topic, it was asked to feedback their best ideas to the wider group. there was a common theme running through all the groups in terms of embracing emotion in clinic. group a – teaching and planning for emotions: · the group thought that the supervisor has a key role in modelling the best way to deal with emotion. it may be counterproductive to pretend you are always calm and collected. consider being honest with students when you are feeling anger or frustration (but avoid coming across as angry). group b – issues and challenges when teaching for emotions: · this group thought that if you do not show or talk about emotions with your students then they will not come to you for help. we should be normalising emotion in the clinic space. group c – pedagogical priorities in the teaching of emotions. · this group also discussed acknowledging that it is ok to have emotions. we should avoid labelling feelings as right or wrong. they noted that we cannot have a pedagogical goal of ‘solving’ emotions or dealing with them in a half an hour session. this needs to be a longer-term pedagogical goal. · they also identified that it should be clear from the beginning what students can expect and how they should try to manage their emotions. this process should continue throughout clinic. · it was noted that getting students to embrace their emotions is a complicated to frame as a pedagogical goal. third session: a working conceptualisation for reflective practice in the legal profession – exploring the domains of reflection for law students after lunch michele leering, a phd candidate from queen’s university, canada led the first session of the afternoon. she started with a short mindfulness exercise. michele noted that her research had revealed that there were 86 reflective practice authors in australia but only nine in canada. she explained that she had been a lawyer for many years and she recalls that in law school they did not talk about reflection at all. without being a reflective practitioner michelle thinks you cannot make your tacit knowledge explicit and that this is important for practice. when michele did a masters in adult education it was based on reflection, unlike her law school experience. this highlighted to her the tension between liberal arts and vocational educational education in law schools. she opined that in canada it was quite difficult for legal academics to find common cause with the regulator and even to also to agree with one another. michele cares about access to justice and she wants the profession to be more engaged with this. michelle referred to the carnegie report[footnoteref:8], published in 2007, which called for reform to legal education in north america. it recommended that law schools should integrate three sets of values or ‘apprenticeships’ in the legal curriculum: [8: the carnegie foundation of the advancement of teaching, educating lawyers: preparation for the profession of law (2007). summary available at: http://archive.carnegiefoundation.org/pdfs/elibrary/elibrary_pdf_632.pdf (accessed 15 march 2019). ] (1) intellectual or cognitive apprenticeship. this focuses on knowledge and the way of thinking of the profession; (2) practice apprenticeship. this is where students are introduced to practice-based learning through simulated scenarios or working for real clients in clinics; and (3) socio-ethical apprenticeship – this involve the exploration and assumption of the identity, values of the professional community. integrating the three parts of legal education would better prepare students for the varied demands of professional legal work. this would helping people learn better, learn from their experience, develop professional competency, and develop their skills. the room then split into groups to focus on five different domains of reflective practice discussed in michele’s research: (1) reflection on practice: (2) critical reflection; (3) self-reflection; (4) integrated reflection and (5) collective reflection.[footnoteref:9] the focus of the discussion was student reflection. feedback from the groups was as follows. [9: michelle, m. leering, ‘integrated reflective practice: a critical imperative for enhancing legal education and professionalism’ canadian bar review 95, 47-89.] reflection on practice groups: · this group had focused on reflecting upon, and developing, a single competency like interviewing. methods varied as to how the group members encouraged their students to do this e.g. debrief and discussion, modelling interviewing etc. critical reflection groups: · spent time talking about how to encourage critical reflection. for example, by exploring how law might harm vulnerable or disadvantaged people. there was also a broader discussion about laws being made by the privileged. the group thought it was important to discuss law reform and change to legal systems and the fact that precedents can perpetuate injustice. · there were many different methods discussed by this group for encouraging critical reflection. examples included sending students off to an inquiry, or giving them statistics and asking them to unpack any assumptions or prejudices that might stand behind such statistics. the idea of case rounds were also discussed. self-reflection groups: · this group made a reference to the fact students come to law school to be lawyers, whatever their preconceptions about being a ‘lawyer’ are. it was suggested that self-reflection might lead students to embrace the norms they want but challenging the norms they do not like. it is still possible to be in the ‘tribe’ but reject certain norms of thinking. · one group talked about how self-refection lead to thinking about the role of a lawyer. there is a need to have both time and space to have this deeper type of reflection though. integrated reflection groups: · this discussion had centred on students making the most of opportunities they are afforded. a reflective portfolio is the vehicle for drawing everything together. collective reflection groups: · discussed building collaborative skills – a shared vision for achievement, common goals, improvement ongoing, and student mind mapping of feedback session 4 assessment of student reflections associate professor ross hyams of monash university led the final session of the day. ross explained that in his clinic the students initially were required to keep a reflective journal but that it was not assessed. he began to question the credibility of not assessing it. however, assessing reflection raises difficulties and challenges. as stefani suggests, we may accept a pedagogical rationale for reflective journals but cannot presume it is easy to create a fair assessment tool for reflective journaling.[footnoteref:10] we need to recognise that the learning process involved in reflection is itself is important. reflective journaling should be assessed on the reflective process involved, not just the ‘product’ produced.[footnoteref:11] the challenge is therefore finding an assessment tool that assesses the reflective journey as well. [10: lorraine stefani, ‘assessment in partnership with learners’ (2006) assessment and evaluation in higher education pp. 339-350] [11: as above. ] ross noted that we might not always agree with some of the things our students write in their reflections. he questioned whether it is appropriate for us, as clinical teachers, to comment upon, counsel or advise students on their: · prejudices; · biases; · nonlegal ethics; · beliefs; and · opinions. if we believe we have a right or obligation to tackle such issues this leads us to further questions such as: · how does that translate to assessing reflection?; and · can we create an assessment tool that adequately and appropriately assesses such matters? we then split into groups to work on clinical scenarios involving various challenges and issues including the following. scenario 1 the first scenario involved a student who was resistant to idea of reflection but whose clinic work was reasonably good: · the group who looked at this scenario said that they would have started by discussing the positive aspects to her work and encourage her to talk about the implicit reflection in her work. they would have avoided dealing with the issue in an overly formal way. · they would have also given the student specific questions to answer so she had more guidance. scenario 2 – involved a student from a privileged background who was showing no empathy towards his clients. he had expressed a view that the clients find themselves in need of legal help because they are poor and stupid: · the group who considered this scenario agreed that it was necessary to challenge the student’s views. it was noted that it was important to set learning outcomes in clinic that are not just about legal skills like research and advice. the pre-conference workshop proved to be a thought provoking prelude to the following international journal of clinical legal education conference. the perennial challenge of engaging students in reflective practice in clinic was thoroughly debated, and new insights were generated from the interactive group sessions. the 2019 pre-conference workshop on european best practice standard in clinic will no doubt be equally as engaging. 236 reviewed article why lawyers and legal educators should care about (epistemic) justice melanie walker, higher education & human development research group, university of the free state, south africa[footnoteref:1] [1: melanie walker is a professor at the university of the free state, south africa. (walkermj@ufs.ac.za)] introduction society shapes the law and the law, we hope, might shape society for the better in turn. legal traditions and practices therefore surely ought to secure for all citizens the prerequisites of a life worthy of human dignity. in a speech to the routledge-modise law school in johannesburg in september 2008, justice kate o’regan[footnoteref:2] drew on antony kronman’s theory that one of the main characteristics identifying the practice of law is that it is directly concerned with the public good. lawyers have a responsibility to foster the legal system and the rule of law; at times, this might require them to suggest new laws or legislation; at other times, it might require them to criticize judgments which may not appear correct; at other times, they may need to protect the rule of law itself. [2: o’regan, k. ‘lawyering in our new constitutional order.’ (2009). uct news alumni magazine cited in walker. m. higher education pedagogies. (2016) maidenhead: open university press & srhe ] yet many in the profession who are working for social justice perceive there to be a lack of such an orientation in lawyers in current times. the former chairperson of the south african human rights commission has thus said that “there is a growing perception that in spite of south africa's having one of the best constitutions in the world; its legal practitioners are losing their social consciences”[footnoteref:3] reminds us, lawyers should have a public calling and obligation for public service to foster the legal system on behalf of the marginalized, strengthening constitutional democracy and also changing individual lives. this role in strengthening democracy seems of some importance, given that it appears that democracy is fragile nearly everywhere. delivering the nelson mandela annual lecture in johannesburg in july 2018[footnoteref:4], barack obama relayed his concerns regarding the subversion of free media, the use of social media as a vehicle for hatred and propaganda, as well as how some politicians openly lie and discard facts for their own needs. his lecture sought to defend democracy and civil rights as “the better story to tell” and to resist the potential “undoing”[footnoteref:5] of democracy in current times. [3: cited in sarkin, j. ‘promoting access to justice in south africa: should the legal profession have a voluntary or mandatory role in providing legal services to the poor?’ (2002). south african journal on human rights, 18 (4), 630-644 ] [4: marrian, n. and quintal, g. ‘obama: resist politics of fear and resentment.’ (2018). business day, 18 july:1] [5: ibid, (n.4) ] this leads me to ask how legal education might contribute to addressing this urgent challenge. here is my claim that follows: epistemic justice and injustice are deeply relevant to a just legal system, its practitioners, to clinical practice learning, and hence to legal educators in universities like yourselves. i acknowledge, nonetheless, that universities and clinical practice settings may act in contradictory ways, with the potential to empower, co-existing with the potential to oppress and marginalize. we need to work for more of the first and less of the second for justice in a non-ideal world[footnoteref:6]. [6: sen, a. the idea of justice. (2009) london: allen lane] epistemic injustice, on which i elaborate later, refers to those forms of unfair treatment that relate to issue of knowledge, understanding and participation in communicative practices. put simply, if you are in a disadvantaged position to influence discourse you are subject to epistemic injustice and reduced epistemic agency[footnoteref:7]. that is, you are wronged specifically in your capacity as a knower; you do not have a voice that is recognized, and you are placed at an epistemic disadvantage. [7: kidd. i., medina, j, and pohlhaus, g. jr. ‘introduction’ (2017); in kidd. i., medina, j, and pohlhaus, g. jr (eds.). the routledge handbook of epistemic injustice. (2017) london & new york: routledge] i hope thus to make a persuasive case for adding an epistemic justice-facing capability to the eight multi-dimensional, intersecting public-good professional capabilities identified by monica mclean and myself[footnoteref:8]. we arrived at these both theoretically and empirically using five professional education case studies, including law, at three south african universities. the details of the method and the cases can be found in the book[footnoteref:9]. [8: walker, m., & mclean, m. professional education, capabilities and contributions to the public good. (2013). london: routledge.] [9: see walker, m., & mclean, m. professional education, capabilities and contributions to the public good. (2013). london: routledge.] capabilities first, a brief outline of what i mean by ‘capabilities’. the capability approach[footnoteref:10] is a broad normative framework rooted in a philosophical tradition that values individual freedoms, and is used for the evaluation and assessment of individual wellbeing, social arrangements and the design of policies and proposals about social change. the approach conceptualises “good” development as freedom constituted by “human capabilities”, rather than only as national income or people’s subjective preferences. income does not tell us who has the money or what it is used for, while preferences may be subject to adaptations in the light of poor living, such that one comes to accommodate limited opportunities and reduce aspirations for the future. the core focus of the approach is on the effective opportunities people have to be and to do what they have reason to value. it highlights substantive freedoms (‘capabilities’), and outcomes or what is actually achieved (‘functionings’). professional ‘beings and doings’ that are valuable to the professionals who emerge from higher education would be ‘functionings’; such ‘functionings’ would be proxies for ‘professional capabilities’. importantly, with capability also comes responsibility for what we do, and the obligations we owe to others[footnoteref:11]. the capability approach further takes into account intersecting ‘conversion factors’, that is the personal, social and environmental factors that shape our ability to transform our means to achieve into capabilities and functionings. this includes, in my view, structures of inequality such as race, class, gender, and so on. finally, agency is significant for sen; we are not passive spectators in our own development but active agents who makes choices, albeit under specific contextual circumstances[footnoteref:12]. [10: see sen, a. development as freedom. (1999). oxford: oxford university press. and sen, a. the idea of justice. (2009). london: allen lane. see also nussbaum, m. women and human development. (2000). cambridge: cambridge university press] [11: sen, a. the idea of justice. (2009). london: allen lane.] [12: ibid (n.11) ] figure 1: formation of public-good functionings the approach can be used as a normative framework to tell us what information we should look at do people have valuable capabilities and who has them if we are to judge how well someone’s life is going. more broadly it can be used as an evaluative framework to conceptualise, measure and evaluate human wellbeing[footnoteref:13]. what matters in arriving at these assessments, for sen[footnoteref:14] is the lives that people can actually live – what they are able to do and to be (such as having access to legal services and being treated fairly). [13: crocker, d. a., & robeyns, i. 'capability and agency', (2010), in morris, c. w. ethics and economics. (2010). amartya sen, 40-59.] [14: sen, a. the idea of justice. (2009). london: allen lane.] it also provides a framework for an examination and understanding of the purposes of universities and hence of legal education settings, including the clinical, because it encourages us to consider individual opportunities for wellbeing achievement and agency in and through higher education. through a capabilities lens, higher education is not solely a means for individuals to achieve economic gains through acquiring knowledge and skills for employment. instead, the approach asks us how higher education is contributing to human development[footnoteref:15], by recognising an expansion of the capabilities and functionings that people have reason to value. thus, various higher education studies have explored the approach’s theoretical richness in conceptualizing and articulating the changes that need to take place in universities if they are to contribute to human development and social justice[footnoteref:16]. [15: haq, ul m. ‘the human development paradigm’ (2003), in s. fukuda-parr and a.v. kumar (eds) readings in human development. oxford: oxford university press, 17-34] [16: see for example walker. m. higher education pedagogies. (2006). maidenhead: open university press & srhe and boni, s. and walker, m. higher education and global human development. (2016). london and new york: routledge. among others. ] to recap the existing eight public-good professional capabilities on mine and monica’s list (see table 1), these were: informed vision; knowledge and skills; affiliation; resilience; social and collective struggle; emotional reflexivity; integrity; and, confidence and assurance[footnoteref:17]. all the capabilities are important and any trade-offs would need careful and wide deliberation. [17: walker, m., & mclean, m. professional education, capabilities and contributions to the public good. (2013). london: routledge.] table 1: public-good professional capabilities extrapolated from empirical functionings, walker and mclean, 2013 examples of functionings professional capability understanding how the profession is shaped by historical and current socio-economic, political context nationally and globally; understanding how structures shape individual lives; being able to imagine alternative futures. 1. informed vision care and respect for diverse people; communicating professional knowledge in an accessible way/courtesy and patience. 2. affiliation (solidarity) perseverance in difficult circumstances. 3. resilience promoting human rights; identifying spaces for social change to reduce injustice. 4. social and collective struggle empathy/narrative imagination; compassion. 5. emotions (emotional reflexivity after july 2012) acting ethically. 6. integrity having confidence in the worthwhileness of one’s professional work; having confidence to act for change. 7. assurance and confidence having a firm, critical grounding in disciplinary, academic knowledge; being enquiring, critical, evaluative, imaginative, creative and flexible. 8.knowledge and skills in our south africa law case study, functionings included: being self-aware and reflexive; being conscious of what a person wants to achieve as a professional and one’s values; and, being able to decide which career direction to move in. students identified that it is important to have a sense of self-belief and self-confidence in yourself as a lawyer. most felt it important that each individual is able to choose their career path autonomously. for many, being a lawyer in itself was inherently tied up with acting in the public good. rohan, a lecturer, saw law as a profession that intrinsically involves acting in the interest of others, who lack the legal skills to defend their own interests. in other words, he said, “there is value in the training of the attorney in that it’s a profession in the interest of other persons”[footnoteref:18]. [18: walker, m., mclean, m., dison, a. and vaughan, r. ‘higher education and poverty reduction: the formation of public good’ (2010)., unpublished paper. school of education: university of notthingham. pp.138] our eight professional capabilities are open to debate and to changes, and we welcome this. moreover, we did not claim that these capabilities are universal. they were developed in the specific context of transformation seeking but highly unequal post-apartheid south africa so that the list was understood to be the capabilities that would equip future professionals to act for the public good. however, we did argue that a normative capability set, such as the one proposed, can reveal injustices and also possibilities for working towards non-ideal justice in practice settings, and this argument would be widely relevant. can we, should we, then make space for a distinctively epistemic capability – beyond knowledge and skills on the list? why epistemic justice matters for justice here is my argument for epistemic justice and a corresponding capability. in making my case, bear in mind that i take for granted that what is required for fairness is a foundation of proficiency in technical legal reasoning, knowledge of law, and the constraints of procedure – they play a central role in working with clients and supply the bounds within which epistemic justice must work. my claim is that legal educators, lawyers and other legal professionals should care about epistemic justice and care about doing epistemic justice in their own practice actions across all branches of the law, whether the injustices generate micro or macro exclusions. access to equality and fairness before the law for all, and, understanding the law in more mundane and more dramatic contexts matters in a just society. legal educators – including but not confined to clinical legal educators train and educate future legal practitioners so what they do matters too for a just society and for a legal system which is oriented to the public good of all and not just the few. how then might our own epistemic conduct be more just in the face of the discrimination arising when unfair biases cause people to underestimate the credibility of certain individuals and groups, often socially disadvantaged groups or those different from ourselves. such prejudices can occur in a great diversity of communicative exchanges and can negatively impact on decision-making in legal contexts.  fricker’s ‘failure first’ method specific attention to epistemic injustice can alert us to justice gaps and blind spots; it is what philosopher miranda fricker[footnoteref:19] calls a methodological approach of ‘failure first’[footnoteref:20]. she explains that it is often revealing to start with the negative, to begin with a picture of how things will tend, under the relevant socio-historical circumstances, to go wrong. epistemic justice is then best conceived as always sustained under tension, she says. of course, these tensions will differ from society to society and we should each consider the claims and argument in relation to the specificity of our own contexts. [19: fricker, m. ‘epistemic contribution as a central human capability’. (2015). in g. hull (ed.) the equal society. cape town: uct press, 73-90] [20: ibid, 2015, pp.3 ] the context for my first illustrative example is apartheid south africa in may 1976 just six weeks before the history-changing soweto student resistance erupted. the occasion is the lengthy supreme court trial of nine student leaders from the black people's convention (bpc) and the south african students' organization (saso). the banning orders of charismatic black consciousness activist, steve biko, were relaxed so that he could testify on their behalf.[footnoteref:21] in the example, biko is giving evidence before white, afrikaner judge boshoff, a man clearly skeptical of the epistemic capabilities of africans and their ability to understand democracy or the concept of one person one vote. there is epistemic injustice at work here in the judge’s prejudiced refusal to accept black africans as credible knowers. after an exchange as to whether or not there are any examples of one man [sic] one vote in any african country, boshoff asserts (and the irony would not be lost on anyone with some knowledge of apartheid): “yes but democracy is really only a success if the people who have the right to vote can intelligently and honestly apply a vote… i mean surely you must know who you are voting for, what you are voting about. assuming that they vote on foreign investment, what does a peasant know about foreign investment?”. and later, “if we have to debate whether this government should go on the gold standard or go off the gold standard will you feel you know enough about it to be able to cast an intelligent vote about that... such that the government should be based on that vote?”[footnoteref:22]. for the judge, black south africans simply cannot be credible as knowers or tellers about democracy locked as he is into a decades long belief that blacks were inferior, “unable to formulate their thoughts without white guidance” as biko[footnoteref:23] wrote. this is a vivid example of failing to accept someone’s testimony because of racial prejudice, and hence a failure to recognize black south africans as capable of transmitting knowledge about their own situation and coming to their own judgements about a different way of doing things. [21: the nine were found guilty under the terrorism act and sentenced to periods of imprisonment on robben island. eighteen months later biko himself would die of injuries sustained during interrogation. his death stunned and shocked the world. but not jimmy kruger, the then minister of all things justice, who stated that biko’s death “left him cold”. ] [22: biko, s. i write what i like. (1978). northlands: picador press, pp.145] [23: ibid, (1978)., pp.98] here is a further example of epistemic failure. some of you may recall the murder of black teenager stephen lawrence in london[footnoteref:24], one night in 1993, while waiting with his friend duwayne brooks for a bus to get home. brooks saw a group of five or six white youths on the opposite side of the street, moving towards them. brooks claimed that he heard one of lawrence's assailants saying, “what, what, nigger?” as they all quickly crossed the road and “engulfed” lawrence. as the attackers forced lawrence down and stabbed him, brooks began running, and shouted for his friend to run with him. they both ran, but lawrence collapsed and bled to death after 130 yards. for a whole generation, brooks said, the effect of the case was seismic, a moment when many lost trust in the police, the judiciary and politicians. in the wake of the murder, the police embarked on a campaign of harassment – not of the alleged perpetratorsbut astonishingly of brooks. the campaign would go on for years. at first they tried to discredit his evidence, then attempted to ruin him personally. there were regular arrests, the charges either quietly dropped or defeated. the point here is that duwayne brooks – who was there – was discounted as a credible witness simply because he was young, male and black. he was wronged and undermined specifically in his capacity and credibility as a knower because of prejudice on the part of the police and others. systemic and individual racial prejudice triumphed over the evidence of duwayne brooks and over justice for stephen lawrence because of these epistemic wrongs. [24: bowling, b. ‘stephen lawrence: his death changed british law forever but trust in police has yet to recover.’ (2018). available at https://theconversation.com/stephen-lawrence-his-death-changed-british-law-forever-but-trust-in-police-has-yet-to-recover-95091] here is one final example. in rochdale, england in the 2000s[footnoteref:25], police launched an investigation into the town’s sex gangs. yet, despite powerful evidence against them, their child victims were written off as ‘unreliable witnesses’ who, according to the crown prosecution service, had made ‘lifestyle choices’ to become ‘prostitutes’. the police hadn’t interviewed amber one of the victims. instead, they had arrested her — on suspicion of procuring a child into prostitution. her crime? accompanying a friend who was four months younger to the kebab shop where some of the abusers hung out. yet at 15, she was an under-age victim herself, meanwhile, her sister, ruby, had been raped by a married asian man at the age of 12, and subsequently had an abortion. or the senior officer who said to maggie oliver[footnoteref:26], “maggie, let’s be honest about this. what are these kids ever going to contribute to society?” he said. “in my opinion, they should have just been drowned at birth.” [25: see oliver, m. one brave detective’s battle to expose the rochdale child abuse scandal. (2019). london: john blake. for powerful account of the case. ] [26: ibid, (2019).] these are all dramatic examples, but they are also real, not made up scenarios. they serve to alert us to the potential and actual consequences of epistemic failures in societies. readers could no doubt think of many more examples of the law at work, which are more or less epistemically fair and just, more or less every day. miranda fricker’s “epistemic contribution capability” and the functioning of becoming and being an epistemic contributor fricker[footnoteref:27] argues that the capability for epistemic contribution and i would add the functioning of being an epistemic contributor, too should be a central capability on any list. it is fundamental to human flourishing to have the opportunity and freedom to give and receive information and understanding, to be a credible knower and teller in society, and to participate in society’s meaning-making, an opportunity denied to steve biko, duwayne brooks and tom robinson. two forms of epistemic materials contribute: informational (including evidence, doubt, hypothesis, and argumentation), and interpretational (making sense, alternative ways of seeing). to this end, fricker outlines two forms of epistemic injustice: testimonial (not listened to because of who you are) and hermeneutical (not having the means to communicate intelligibly to others about something and hence not being an equal participant in the generation of shared meaning). [27: fricker, m. ‘epistemic contribution as a central human capability’. (2015). in g. hull (ed.) the equal society. cape town: uct press, 73-90] hermeneutical injustice is structural (as in the lawrence case which later revealed structural racism in the police force). it is evident in attempts to contribute and participate in social meaning-making and hence in attempts to make an experience intelligible to oneself or to someone else, for example, experiences of racism or sexual harassment before there was a social understanding to understand this form of harassment and other social exclusions. another example might be that of post-traumatic stress disorder experienced by soldiers (and others). before we had a name for this, persons suffering this form of trauma were labelled as cowards, or depressed, or even malingering – there was no name to communicate or acknowledge their suffering. hermeneutical injustice also arises when the injustice is understood by the powerless (such as among black south africans under apartheid) but is still not communicable to those with power because they will not or cannot hear because the person speaking may be a single mother on benefits, a migrant, working class, and so on. experiences that are outside of what is marked out as the norm are not heard or acknowledged, and hence not cared about. this unequal participation in generating social meanings generates structural hermeneutic marginalization of a person or group in the absence of non-distorted discursive resources among the dominant. there are compelling examples of thus under apartheid in miriam tlali’s 1968 novel (republished in 2004), between two worlds[footnoteref:28], based on her own experiences. for example, she reveals the epistemic obtuseness of her white colleagues with regard to the accepted narrative of south african society. thus, one remarks that, “the critics overseas are ill-informed about the true situation. they only receive false information. south africa is a most peaceful country. people are free to go where they like, and say what they feel”[footnoteref:29]. for mrs stein – and others like her there is a closed hermeneutic loop. [28: tlali, m. between two worlds. (2004). broadview press.] [29: tlali, m. between two worlds. (2004). broadview press., pp.207] in both cases of hermeneutic injustice people are denied epistemic functionings; they cannot be epistemic contributors. the second form, testimonial injustice[footnoteref:30], arises through a deficit of credibility owing to prejudice in the hearer’s judgment about the speaker (duwayne brooks was not believed because of who he was). philosopher michael sullivan[footnoteref:31] explains that in the case of criminal law, opportunities for epistemic injustice abound because practices in the legal system are unable to understand the experiences of others in difficult situations of which the legal practitioners may have no knowledge. we may also find disparities in sentencing for similar offences and these, he says, are not unrelated to social power and epistemic authority. these are real practical effects and consequences. [30: fricker, m. epistemic injustice. power and the ethics of knowing. (2007). oxford; oxford university press] [31: sullivan, m. ‘epistemic justice and the law’ (2017). in kidd. i., medina, j, and pohlhaus, g. jr (eds.). the routledge handbook of epistemic injustice. (2017) london & new york: routledge] it may also take pre-emptive form, when, for example a lecturer does not call on a student to respond, to enter the debate and so on because they are assumed – even before they can speak – not to be credible about the subject under discussion. hookway describes this as “the participant perspective”[footnoteref:32] where someone is not recognized as competent to participate in activities whose content is intrinsically epistemic – they are not invited to contribute, or their contributions may be disregarded in furthering the discussion. he points out that if we come to lack confidence in our ability to contribute, this eventually attacks “also our ability to properly participate in epistemic activities at all”[footnoteref:33]. in higher education, students from working class or migrant backgrounds may lack confidence and may be made to feel inadequate. in this case students would be both non-knowers and non-participants and subject to pedagogic injustices as a secondary effect. a further example might be in court where a judge overrules all attempts by a defence lawyer who attempts to portray his client to the jury on the basis that for the judge the client is simply not credible and his or her story may be simply not allowed to be heard. jose medina thus stresses that epistemic injustice is interactive and performative, it is made in communicative spaces[footnoteref:34]. [32: hookway, c. ‘some varieties of epistemic injustice: reflections on fricker’. (2010). episteme: a journal of social epistemology, 7 (2):151-163] [33: ibid, 2010 ] [34: medina, j. ‘varieties of hermeneutical injustice 1’ (2017). in kidd. i., medina, j, and pohlhaus, g. jr (eds.). the routledge handbook of epistemic injustice. (2017). london & new york: routledge] in both hermeneutical and testimonial injustice, the primary exclusion is being wronged as a knower. but – as noted this gives rise to secondary wrongs in practice, for example not being believed by a judge, jury or a magistrate or ignored in a university classroom. both hermeneutical and testimonial forms also work together in practice. as medina explains, “testimonial insensitivities and hermeneutical insensitivities converge and feed each other”[footnoteref:35]. both forms are also iterative so that repetitions secure the injustices. if a person is repeatedly not taken seriously as a knower, they lose confidence in their own ability. the capability for epistemic contribution is frustrated by not appreciating or mistrusting people as knowers and is indicative of wider structures of inequality. localized prejudices and injustices may be utterly disastrous for the subject, especially if they are repeated frequently so that the injustice is persistent. as she further explains being wronged in one’s capacity as a giver of knowledge “can cut deep”[footnoteref:36]. [35: medina, j. ‘hermeneutical injustice and polyphonic contextualism: social silences and shared hermeneutical responsibilities.’ (2012). social epistemology, 26 (2), 201-220, pp.206] [36: medina, j. ‘varieties of hermeneutical injustice 1’ (2017). in kidd. i., medina, j, and pohlhaus, g. jr (eds.). the routledge handbook of epistemic injustice. (2017). london & new york: routledge ] the strength and reach of fricker’s approach is the way she identifies intrinsically epistemic forms of injustice – wrongs done to someone as a knower; yet egalitarian epistemic contributions are fundamental to human well-being and, she argues, to political freedoms. fricker explains that in any cultural context, the question of who gets to contribute epistemically to shared knowledge and/or shared social understandings in any given practical context, is a matter of epistemic equality or inequality. it is also fundamentally relational in its process, practices and effects. we flourish (not or) as epistemic contributors in relationships with and through others. in oppressive contexts (racism, sexism, classism etc.) the powerful undermine others with less power in their epistemic capacity, undermining them in their humanness and dignity. it is humiliating and demeaning and reduces confidence and, fricker says, the development of intellectual courage. we end up not being at all sure of what we think ourselves and our personhood is diminished. to be sure, those who hold political and social power, whether in the broader society or in higher education institutions (or both), also wield epistemic power. anticipating many of the current debates on epistemic justice, in 1978 biko wrote, “that the most potent weapon in the hands of the oppressor is the mind of the oppressed”[footnoteref:37]. even earlier, in 1767 french lawyer, joseph servan, explained that, “when you have thus formed the chain of ideas in the heads of your citizens, you will then be able to pride yourselves on guiding them and being their masters…. [on] the habitual union of ideas…on the soft fibres of the brain, is founded the unshakeable base of the soundest empires”[footnoteref:38].[footnoteref:39] [37: biko, s. i write what i like. (1978). northlands: picador press, pp.49] [38: servan, j.m.a, discours sur l'administration de la justice criminelle. (1767) cited in foucault, m. discipline and punish. (1977). london: penguin books., pp.102-103] [39: this includes the impact of colonization on knowledge and whose knowledge and knowledge contributions are regarded as credible. see, for example, de sousa santos’s (2015) decoloniality argument for inclusive “ecology of knowledges”, for global cognitive justice, and for a more expansive and generous ways of seeing, thinking and knowing in universities and elsewhere. ] at stake is that our epistemic lives whether in higher education or elsewhere are not abstractions but active, practical and relational, done well or less well[footnoteref:40]. fricker’s epistemic contribution capability is fundamental for accessing critical knowledge and requires pedagogical and other conditions for critical reasoning and dialogue to achieve “the epistemically multi-perspectival context in which citizens may come to believe truths in the mode of knowledge”[footnoteref:41]. ideas and knowledge matter for participation in inclusive meaning-making (and hence to politics, education, the professions, and so on) so that who has access to these epistemic goods at various layers of society is then a matter of justice. [40: barker s.r., crerar c. and goetze, t. ‘harms and wrongs in epistemic practice.’ (2018). in: barker s.r., crerar c. and goetze t., (eds.) harms and wrongs in epistemic practice. (2018). royal institute of philosophy supplements, 84. cambridge university press, cambridge, uk., pp. 1-21.] [41: fricker, m. ‘epistemic contribution as a central human capability’. (2015). in g. hull (ed.) the equal society. (2015). cape town: uct press, 73-90., pp.15 ] fricker[footnoteref:42] asserts her basic claim that any epistemic injustice (including exclusions from access to and being understood in the context of the law and also in legal professional education) wrongs someone both as a giver of knowledge and as a credible informant so that a person is prevented from becoming fully who they are. epistemic oppression would constitute a “persistent epistemic exclusion that hinders one’s contribution to knowledge production, an unwarranted infringement on the epistemic agency of knowers”[footnoteref:43]. her capability is quite simply, she argues, universally essential to human flourishing and hence an egalitarian value because one of our most basic human needs, is to use our reason, to sift and evaluate information, to make interpretations and sense of our shared lives. all persons should then be able to make epistemic contributions and to have such contributions taken up socially, neither rejected nor under-rated – whether we are black or white, rich or poor, migrant or citizen, man or women, able-bodied or differently-abled, young or old, and so on. epistemic justice fosters the contestation of ideas in the public sphere, and this in turn requires struggling both for personal change and conditions and structures of epistemic justice. importantly, epistemic justice can be contested so that epistemic failure is seldom complete, and structural possibility seldom entirely open. in short and to reiterate, ‘thick’ epistemic contributions are fundamental to human flourishing; this is important for everyone. [42: fricker, m. epistemic injustice. power and the ethics of knowing. (2007). oxford; oxford university press] [43: dotson, k., ‘conceptualizing epistemic oppression’. (2014). social epistemology 28 (2): 115-138] the case for adding a new public-good professional capability wolff and de-shalit’s two law-oriented capabilities on their own list[footnoteref:44], adapted from that of martha nussbaum, might be subsets of the epistemic contribution capability[footnoteref:45]. these are: 1) living in a law-abiding fashion the possibility of being able to live within the law; not to be forced to break the law, cheat, or to deceive other people or institutions; and, 2) understanding the la having a general comprehension of the law, its demands, and the opportunities it offers to individuals, not standing perplexed before the legal system or perplexed in front of a legal practitioner. as one of the legal ngo workers interviewed for our south africa law case study explained: “having a general comprehension of the law, i think that’s critical. that informs the relations that we have in society and our obligations and the state’s obligations. it’s the glue that keeps it together and yet people don’t understand the law. they don’t understand their rights at an absolute basic level – not understanding their rights it means they can’t respect those rights and they can’t access those rights”[footnoteref:46]. for access to the law, one of our case study students supported wolff and de-shalit in highlighting the importance of lawyers being able to relate to and properly communicate with their clients because the legal world can be very alien for people from different backgrounds[footnoteref:47]: “my clients said that they go to court and then they don’t understand what the magistrate is saying, so they come here to the legal aid clinic. when i see them, they’re looking for someone to represent them and be able to speak the language, the law language. even if they don’t understand it, they trust us to know ‘ok, what you’re saying is correct’. they’re looking for someone to speak in a different language on their behalf’”[footnoteref:48]. [44: wolff, j., & de-shalit, a. disadvantage. (2007). oxford university press on demand.] [45: nussbaum, m. women and human development. (2000). cambridge: cambridge university press] [46: walker, m., mclean, m., dison, a. and vaughan, r. ‘higher education and poverty reduction: the formation of public good’. (2010). unpublished paper. school of education: university of notthingham. pp.139] [47: wolff, j., & de-shalit, a. (2007). disadvantage. oxford university press on demand.] [48: walker, m., mclean, m., dison, a. and vaughan, r. 2010. higher education and poverty reduction: the formation of public good, unpublished paper. school of education: university of notthingham., pp.141] in many ways, this mode of communication is related to seeing clients as human and respecting them. thus another student stated: “what is important is that you don’t indulge in this legal jargon with indigent clients, stick to the basic language and that’s how you respect them as well…you don’t make them feel that ‘i’m superior and you’re inferior’, you speak to them, you maintain that professionalism but you try to communicate with them on an equal basis, so that they open up”[footnoteref:49]. a third remarked that, ‘each client should be treated with dignity, not making them feel inferior: “’you are a person, you are special, you have your dignity, hold onto that, you’re not the person he [your husband] says you are’”[footnoteref:50]. it is then important to make the law accessible not expecting people to understand legal terms and processes. as the then dean of the law faculty commented, “’you can’t really do much with a lawyer who can understand the most arcane and complicated statute…but can’t even translate that into plain english for a client’”[footnoteref:51]. [49: ibid, (2010)., pp.141 ] [50: ibid, (2010).] [51: ibid, (2010).] in short, the legal system should not unfairly prejudice the vulnerable. as one lawyer told us, “‘people in low-income areas [or it could be under conditions of a lack of democratic freedoms as in apartheid south africa] do not have an understanding of their rights…i think we as a profession have a duty there’”[footnoteref:52]. another lawyer working for an ngo felt that knowledge about your own society was possibly as significant as the knowledge of the law itself, “knowledge of not only the theory but also, and maybe more importantly, a knowledge of what’s happening in society, and to be aware of what, and how the rules of society operate and how those rules can be used creatively to find solutions to society’s problems”[footnoteref:53]. a third, who worked for a legal professional standards body, felt it was important for professionals to be aware of the effect they can have through their work, “i think professionals can play a role. i think lawyers, urban planners, engineers, and so on, when they do the kind of work they do, should have in mind the makeup of society and plan and engineer in accordance with that. so i firmly believe that professionals must always be aware of their role in society at all times”[footnoteref:54]. finally, one of the students remarked that professionals can enable people’s access to justice, “for them to actually know that there is a way out…you don’t have to sit in that same situation”[footnoteref:55]. [52: walker, m., mclean, m., dison, a. and vaughan, r. 2010. higher education and poverty reduction: the formation of public good, unpublished paper. school of education: university of notthingham.,pp.139] [53: ibid, (2010)., pp.139] [54: ibid, (2010)., pp.139] [55: ibid, (2010)., pp.139] in other words, everyone ought to be enabled and respected as an epistemic contributor, and the law has a part to play in enabling this capability. in arguing for adding a new public-good professional capability, there are two intersecting levels in play (see figure 1): 1) the level of general capabilities – that is our freedoms to be and do in ways we have reason to value for well-being in the general population and, arising from that, the specific capabilities that would enable legal practitioners professionally to foster law specific capabilities such as those of wolff and de-shalit[footnoteref:56] and to advance epistemic justice. if some but not others are unable to access or understand the framework of human rights and legal rights or even everyday legal processes governing the purchase and sale of property or rental agreements, or divorce law, or family law affecting the rights of children, or even corporate law that obtain in a society, then we have reason to ask how fair the law or legal processes and outcomes are. 2) the second level is that of legal professionals who themselves needs access to the capability in order to value it, understand it, and foster it for others, and clinical legal education in particular can play a significant role in advancing this capability and fucntioning. the advance or constraint of the epistemic contribution capability – both generally and specifically for legal professionals then offers a tool to identify injustices and think about how to move towards a fair and inclusive legal system and society. [56: wolff, j., & de-shalit, a. disadvantage. (2007). oxford university press (on demand).] i therefore argue for adding another professional capability that of epistemic contribution to be fostered in law students through an appropriate curriculum and pedagogical arrangements and through legal practitioners enabled and made available to the public at large. it is a capability which seems especially important in clinical legal education in universities and in practicing law for the public good. education and developing the capability fricker’s conceptualization requires educational work[footnoteref:57]. epistemic justice fosters the contestation of ideas in the public sphere (this could be a university or on a micro level, a university classroom) and this in turn requires fostering pedagogical conditions of epistemic justice. epistemic injustice not only blocks the flow of knowledge but also the flow of evidence, doubts, critical ideas and other epistemic inputs. epistemic injustice may preclude some people from speaking for themselves or formulating their own knowledge claims. our capability for epistemic contribution, fricker explains, is developed through all kinds of social (pedagogical) encounters which involve sharing information and forms of social understanding, and in which we are both givers and receivers in the project of making meaning; it requires (relational) “epistemic reciprocity”, such that we are all recognized as knowers across higher education and professional settings[footnoteref:58]. by way of contrast, epistemic injustice in university classrooms and clinical practice settings might include silencing, having less status in the communicative practices, being marginalized, being discriminated against, and so on[footnoteref:59]. thus, epistemic justice and injustice processes are central to our lives in education. [57: fricker, m. epistemic injustice. power and the ethics of knowing. (2007). oxford; oxford university press] [58: fricker, m. epistemic injustice. power and the ethics of knowing. (2007). oxford; oxford university press] [59: kidd. i., medina, j, and pohlhaus, g. jr. ‘introduction’ (2017).; in kidd. i., medina, j, and pohlhaus, g. jr (eds.). the routledge handbook of epistemic injustice. (2017). london & new york: routledge.] higher education is demonstrably a space where epistemic justice matters; it is after all where being a knower and being able to act as a knower to gain epistemic access and develop epistemic agency is rather important. in the context of higher education testimonial injustice can include, as noted earlier in citing hookway, the asking of questions which are ignored because of prejudice against the speaker[footnoteref:60]. as fricker explains, it extends to cases where a speaker (for example, a student) “expresses a personal opinion to a hearer, or airs a value judgment or tries out a new idea or hypothesis on a given audience”[footnoteref:61]. the asking or contributing of questions is then, says fricker, potentially vulnerable to a prejudicial credibility deficit. this may be exacerbated where the student’s communicative performance – either or both their expressive style or confidence in english is also in play[footnoteref:62]. the point is that the credibility judgment includes, says fricker, both what is said and the speaker. such pedagogic “failure first”[footnoteref:63] exposes dependence on social uptake so that, while some are enabled by just conditions to make their epistemic contributions, others find their capability ‘thins’ or disappears altogether in some contexts. in the pedagogical context epistemic injustice, and especially prejudice-based testimonial injustice, thus unfairly increases academic and communicative labour for those whose epistemic contributions are filtered when students come together pedagogically, such that this can be identified also as an agency injustice. [60: hookway, c. ‘some varieties of epistemic injustice: reflections on fricker’. (2010)., episteme: a journal of social epistemology, 7 (2):151-163] [61: fricker, m. ‘epistemic injustice and the preservation of ignorance.’ (2016). in: peels, r. and blaauw, m., (eds) the epistemic dimensions of ignorance. (2016). cambridge: cambridge university press, 144-159., pp.148] [62: medina, j. ‘varieties of hermeneutical injustice 1.’ (2017). in kidd. i., medina, j, and pohlhaus, g. jr (eds.). the routledge handbook of epistemic injustice. (2017). london & new york: routledge.] [63: fricker, m. ‘epistemic contribution as a central human capability’ (2015). in g. hull (ed.) the equal society. (2015). cape town: uct press, 73-90] thus, fricker suggests that societies (including education institutions) train our sensibilities in ways which are flawed, given the prejudices that exist[footnoteref:64]. the virtue required she proposes, is “reflexive critical awareness”[footnoteref:65] in order to identify how far our suspected prejudices have influenced our judgment. we can learn to become virtuous hearers through ethical reflection where we are put in a position to know better and reflexive critical awareness is placed pedagogically within our reach; it must constitute part of the conditions of educational possibility. privileged hearers needs to learn how consciously to revise their epistemic judgements upwards. [64: fricker, m. epistemic injustice. power and the ethics of knowing. (2007). oxford; oxford university press] [65: ibid, (2007)., pp.91] pedagogical conditions would need to enable processes for the epistemic capability to take the shape of supportive opportunities for developing the virtue: co-operation, taking pleasure in the achievements [learning] of others, judging others to have dignity, compassion, respect and recognition, and so on, would characterize pedagogy and ethical learning to advance the capability. bohman highlights students being placed in a position to learn the skill of initiating dialogue or making a proposal about an issue[footnoteref:66]. secondly, he notes learning the ability to engage productively in argument and counter-argument (in ways that are respectful of and value all identities). thirdly, students need skills in finding ways to harmonize all proposals on the table, that is, in coming to agreement. finally, students need to learn how to persuade in debate but not to manipulate. pedagogical conditions would need to provide the freedom processes for the epistemic capability to take the shape of actual opportunities: co-operation, taking pleasure in the achievements [learning] of others, judging others to have dignity, compassion, respect and recognition, and so on, would characterize pedagogy and ethical learning to advance the capability. i think therefore that the form of education and training that will foster public-good professional values is a form of praxis pedagogy which is transformative, critical, and attentive both to knowledge and to responsible action in society[footnoteref:67]. praxis is understood here to involve both the integration of academic knowledge (acquired at university) and practical knowledge about how one lives as a professional, as a citizen and as a human being. [66: bohman, j. public deliberation: pluralism, complexity and democracy. (1997) cambridge, ma: mit press] [67: see walker, m., & mclean, m. professional education, capabilities and contributions to the public good. (2013) london: routledge.] according to fricker, if supportive conditions are in place, no one with relevant epistemic materials to offer would be prevented from doing so for “epistemically irrelevant” reasons, for example, because they were poor, or a migrant, or different in some way[footnoteref:68]. all students then ought to be able “to contribute to the common cognitive store [knowledge and understanding] in this pedagogical way, and thereby enjoy the mutual regard and trust that go with epistemic reciprocity”[footnoteref:69]. students would need themselves to develop, and be supported pedagogically in developing, virtues of being confident, inquiring, curious, probing and engaged. pedagogical processes would need to be enabling of the learning of all students, creating spaces both to acquire and contribute to knowledge in the classroom, and searching for meaning and making judgements about trustworthy knowledge. [68: fricker, m. ‘epistemic contribution as a central human capability’. (2015). in g. hull (ed.) the equal society. (2015). cape town: uct press, 73-90, 2015, pp.12] [69: ibid, (2015)., pp.22] we need, i think, a measure of education-facing optimism that there are epistemic spaces of possibility if we cultivate the appropriate virtues. plurality (for example diversity among students and among who gets to be a lawyer) – potentially if not guaranteed offers possibility for epistemic dissidence by means of a diversity of interpretative resources and practices and the inclusion and consideration of as many positional objectivities as possible. plurality is of special importance to universities where scholars, teachers and students require inclusive epistemic freedoms in order to “to inquire, to question and probe established views and new visions without fear of retribution or silencing”[footnoteref:70]. free and open exchanges in university classrooms and public spaces are ‘a necessary condition for the pursuit of knowledge’ and for developing our epistemic capabilities. [70: ben-porath, s. free speech on campus. (2017). philadelphia: university of pennsylvania press] if we agree with stefan collini that, whatever else they might do, universities are dedicated to the pursuit of understanding through open-ended inquiry, then even at this minimalist level, we must foster the epistemic contribution capability for all students as future professionals[footnoteref:71]. [71: collini, s. what are universities for? (2012). london: penguin books] nonetheless, fricker arguably, and we ourselves, may underestimate the social difficulty in developing such virtues. students from advantaged backgrounds may fail to see or understand suffering and deprivation, or to know it exists but be indifferent if there is no impact on their own lives and careers (especially making money). simply thinking about the problem or having access to rational knowledge (such as through digital stories) is important, but may not always be enough to the moral shifts required. experiential learning may then be especially powerful and have the potential to change the way we see or think about the world in ways that abstract debates including rational deliberation about justice for all may fail to do[footnoteref:72]. [72: arpaly, n. unprincipled virtue: an inquiry into moral agency. (2003). oxford: oxford university press] we might place, say, before, say a group of middle class english students, statistics and stories which demonstrate income and class-based inequalities in an area in a community in which legal clinic outreach operates that they can deliberate, coolly and rationally and reach articulate agreement that the situation is morally wrong but yet find them unchanged at the level of moral conduct. there are numerous instances of people with apparently liberal views who are “viscerally prejudiced”[footnoteref:73] in practice, even though at an abstract level they would acknowledge that such prejudice (of race, class, gender, religion, nation, and so on) is morally wrong. equally, we may find a student suddenly confronted with interactions with a real person, who embodies his or her fears of the other, responding in a morally good way. an example from history is provided by david brion davis by drew gilpin faust of his third book in a trilogy on the history of slavery in the u.s. davis’s overarching interest is in how ideas are refracted through real human problems in the everyday world[footnoteref:74]. for example, his concern with how a human being can come to deny and obliterate the humanity of others. for davis slavery came to be a vehicle for examining how humans shape and are shaped by moral dilemmas and how their ideas come to influence their society and world. his own epiphany occurred while serving in the u.s. army towards the end of world war 2. on a troopship headed for germany and ordered to descend into the hold and enforce the prohibition against gambling he discovered hundreds of black soldiers whom he had not even known were on boardsegregated in slave like conditions. gilpin faust suggests that these army experiences introduced him to the realities of racial prejudice and cruelty that he had never imagined still existed[footnoteref:75]. the point is we can act morally without deliberation[footnoteref:76], so we cannot assume that rational deliberation will enable a transparent awareness of actions and reasons for action and necessarily lead to moral action, although of course it may, especially if combined with particular kinds of experiences which trigger moral awareness. higher education should probably offer both abstract deliberation (a core function of higher learning), but combine this with the potential power of experiential learning. it may then be that nussbaum’s “narrative imagination”[footnoteref:77]being able to understand the world from the perspective of someone different from oneself is a crucial aspect of the justice-facing epistemic contribution capability [73: arpaly, n. unprincipled virtue: an inquiry into moral agency. *2003). oxford: oxford university press, pp.10] [74: see faust, d.g. ‘the scholar who shaped history’. (2014). new york review of books, 20 march 2014. available at https://www.nybooks.com/articles/2014/03/20/scholar-who-shaped-history/ ] [75: ibid, (2014). ] [76: arpaly, n. unprincipled virtue: an inquiry into moral agency. (2003). oxford: oxford university press] [77: nussbaum, m. cultivating humanity: a classical defense of reform in liberal education. (1997). cambridge, ma: harvard university press, pp.390] ‘combined capabilities’ because the person is understood as a social being, shaped by and involved in structures, processes and relationships in her society, ‘combined capabilities’ are of special concern[footnoteref:78]. these consist in “internal capabilities” that is, “developed states of the person him/herself that are, so far as the person herself is concerned, sufficient conditions for the exercise of the requisite functions”[footnoteref:79]. to achieve a functioning requires both the internal capability (ability, aspirations, and so forth) and supportive uptake conditions for the actual exercise of a functioning (actually doing it and not only being able to do it) these become combined capabilities. claassen comments that “only the latter are full capabilities, providing us with effective freedom, with the real opportunities to do or be something”[footnoteref:80]. of course, social conditions also shape the development of internal capabilities, for example, in the case of aspirations having access to teachers or family or significant others to foster the capability. without suitable opportunities, an internal capability may not develop well, or it may develop but not be achieved. [78: ibid, (2000).] [79: ibid, (2000)., pp.84] [80: claassen, r. capabilities in a just society. (2018). cambridge: cambridge university press, pp.54] figure 2: combined capabilities it is then combined capabilities that matter for assessments of justice and for students and others having the freedoms to shape their own lives. thus, the epistemic contribution capability would need to be one such combined capability and hence to be achievable as a functioning for legal students, legal practitioners and wider publics. indeed, all the capabilities on mine and monica’s list would be combined capabilities so that both the capability and its achievement would be important in assessments of epistemic justice in professional education processes and outcomes[footnoteref:81]. [81: also see walker. m. higher education pedagogies. (2006). maidenhead: open university press & srhe for the capabilities vs functionings argument for higher education] concluding thoughts by doing particular kinds of educational things universities educate particular kinds of professionals. these particular kinds of things ought to be to educate public-good professionals, with the capabilities to act responsibly towards others. in the arena of professional, including clinical legal education, this ought to translate into human development in which students learn not only knowledge and skills but the difference between simply having a professional skill on one hand, and on the other having the commitment to use that skill to the benefit of others and to continue questioning and extending expert knowledge and its applications. in our project, monica mclean and i were concerned with the education of professionals who are, ethical professional agents who act to remove injustice, who are able to see more humanely; our personal choices matter for social justice. we then all need to accept responsibility for which epistemic practices enable and which constrain. agents – that is ourselves and othersproduce and reproduce cultures and the unequal power relations which benefit the already advantaged. the assertion of responsibility for (epistemic) justice does not allow any group, which complies with, or assists in constructing structures of domination, or fails to work with others to ameliorate conditions, to get a ‘free pass’, and this seems important everywhere. thus iris marion young advances a “social connection” model of responsibility, which “finds that all those who contribute by their actions to structural processes with some unjust outcomes share responsibility for the injustice”[footnoteref:82] we ought to be held responsible and obligated to work towards removing this as integral to our professional ethics if we continue to be part of our society. epistemic ignorance (or blindness) is then not excusable if the tools exist to enable us to see differently and see better and a person or group nonetheless refuses to embrace the conceptual resources that would allow full understanding of domination and epistemic inequalities. moreover, in this way effectively to reduce or destroy the epistemic resources people need to make sense of their own lives and to communicate these lives to others is to deny participation in a shared way of life. [82: young, i. m. responsibility for justice. (2011). oxford: oxford university press ] i hope i have shown that epistemic justice matters for its effects not only on the epistemic but for the wider impact exclusions can have on individual lives and structures, and hence that the epistemic contribution capability merits a place on any list of professional capabilities. it may require some rethinking of the eight capabilities in walker and mclean (2013)[footnoteref:83]. my argument has been that epistemic freedoms matter for our flourishing lives as citizens, as educators, as professionals. thus, for equality all students (and their future clients) ought to have access to the capability and to have such contributions taken up socially neither rejected nor under-rated. [83: walker, m., & mclean, m. professional education, capabilities and contributions to the public good. (2013). london: routledge.] of course, there are other points of view. for example, a study by the carnegie foundation of law schools in the us and canada found that students there were discouraged from relating legal cases to the complexity of real-life cases, or to think through the social consequences or ethical aspects of conclusions[footnoteref:84]. the report concluded that, “in their all-consuming first year, students are told to set aside their desire for justice. they are warned not to let their moral concerns or compassion for the people in the cases they discuss cloud their legal analyses. this warning does help students escape the grip of misconceptions about how the law works as they hone their analytic skills”[footnoteref:85]. yet, as sullivan warns, “when the misconceptions are not addressed directly, students have no way of learning when and how their moral concerns may be relevant to their work as lawyers and when these concerns could throw them off track”[footnoteref:86]. [84: sullivan, w., colby, a., wegner, j.w., bond, l. and sulman, l.s. ‘educating lawyers’. (2007). available at http://archive.carnegiefoundation.org/pdfs/elibrary/elibrary_pdf_632.pdf] [85: ibid, (2007)., pp.6] [86: ibid, (2007).] finally, then, my basic position is that a critical theory – in this case of an epistemic public-good professional capability is premised on the idea that there is no better way of knowing the world than by anticipating a better world[footnoteref:87]. gramsci poses the challenge in this way: “how can the present be welded to the future, so that while satisfying the urgent necessities we may work effectively to create and ‘anticipate’ the other”[footnoteref:88]. for this we need intellectual instruments, imagination and agency to struggle towards that world against the waste of social experiences and distorted and distorting power relations, including the epistemic[footnoteref:89]. of course, a good critical theory is also profoundly practical and it is the practical challenges of professional capabilities that can be answered only by what legal educators and their allies will do, now and in the future and under what conditions of possibility. in such practical efforts we are reminded by nelson mandela (himself a trained lawyer before his incarceration) in what might be considered capabilities language, that, “to be free [is] to live in a way that respects and enhances the freedoms of others”[footnoteref:90]. [87: de sousa santos, b. epistemologies of the south: justice against epistemicide. (2015). london and new york: routledge.] [88: gramsci, a. selections from political writings (1910-1920). (1977). london: lawrence wishart., pp.201] [89: de sousa santos, b. epistemologies of the south: justice against epistemicide. (2015). london and new york: routledge.] [90: mandela, n. long walk to freedom: the autobiography of nelson mandela, (1995). london: abacus., pp.290] acknowledgements a version of this paper was first presented as a keynote address to the annual incle/encle conference in bratislava, 3-5 july 2019. my thanks to the organisers for inviting me and to conference participants for helpful ideas. the current higher education research work on which the paper draws is funded by nrf grant 86540 for my research chair. previous work on professional capabilities with monica mclean was funded by esrc grant res167-25-0302. my especial thanks to monica mclean for so many stimulating conversations and generative collaborations over the years. 5 25 201077je_jcle_july07 “student assessment in the clinical environment – what can we learn from the us experience?” ross hyams* introduction clinical legal education has a relatively short history in australia of some thirty years. by contrast, the us has a much longer and diverse history of clinical pedagogy and has been successfully teaching and assessing students in university legal clinics for over half a century. traditional law school teaching methodology relies heavily on the langdellian style of lectures, tutorials and then a form of summative evaluation. clinical pedagogy is a radical departure from this style and as such assessment of clinical students necessitates a different approach. clinicians have a duty to offer assessment regimes which complement the clinical technique of law teaching. this paper proceeds from the fundamental premise that there is a distinct purpose in assessing clinical students. as clinic is often only offered in the latter years of a law degree, it is the culmination of a student’s law school experience and thus seen by many students as the “testing ground” as to whether they can actually be a lawyer and what sort of lawyer they might be. the underlying objective of assessment in a clinical environment is to measure the development and progress of individual legal skills in each student enrolled in the clinic. this is not a normative measure and thus clinical assessment cannot be based upon objective standards. in this author’s view, assessment in clinic is about the development of legal, personal and ethical skills which is distinctive to the individual student – progressing students in their own personal development track. this paper investigates the issue of student assessment in the clinical environment and provides a comparative analysis of the us and australian clinical assessment experience and the different assessment regimes currently being utilized in the clinical environment. it investigates whether the “younger” clinical programs in australia can learn from the us experience. it considers what, if anything, might be adapted from that jurisdiction that would be relevant and appropriate for the australian clinical environment. a recent front page of the australian, a nation-wide newspaper, states in a banner headline “graduates ‘lacking job skills’”.1 the article claims that the business council of australia (bca) has accused australian universities 77 student assessment in the clinical environment – what can we learn from the us experience? * senior lecturer-in-law, faculty of law, monash university, melbourne, australia 1 “the australian”, 13 march 2006 at 1. of producing graduates without adequate problem-solving skills; that graduates have skills better suited to academic pursuits and that they lack creativity and oral communication skills. this, the bca contends, is choking creativity and limiting australia’s competitiveness in the global market.2 this phenomenon is exceptionally pertinent to australian law schools and produces a knowing nod of agreement amongst legal clinicians who react with a resounding chorus of “i told you so!” directed at their faculty colleagues. arguably, though, the focus in australian law schools has changed over the past two decades. whereas, in the past, it was important to develop a body of knowledge of law, process and facts, we have now accepted that knowledge is useless without accompanying skills. now, we expect law student to master a wide range of skills, including: • comprehension of a body of legal knowledge • the ability to order that knowledge coherently • generic academic skills, such as reading for understanding • specific legal skills, such as negotiating, advocacy and client interviewing • professional, ethical and social skills • writing and communication skills • characteristics needed for lifelong learning – the ability to be self-motivated in learning, to recognise deficiencies in knowledge and/or skills and to be reflective and self aware of abilities and deficiencies. this is not meant to be an exhaustive list, but simply indicative of our expectations on students. more specifically, our expectation by the end of the law degree is that students will be able to perform the following operations in their professional lives: • know the law, • be able to comprehend it • apply it to particular facts • break it down to its component parts • reorganise it and apply it for the client’s interests • evaluate the strength of its authority and its possible impact upon clients in my view, this is a large expectation, because our teaching methodologies do not go a long way in assisting this process – with the one major exception being clinic. why is clinic different? what our graduates lack in his article, “clinic in the classroom: a step toward cooperation”, elliot burg, associate professor of law at vermont law school, complains that: “the vast majority of students i have supervised over the years have come to their clinical work with only the barest understanding of what lawyering entails, little inclination towards self –reflection, limited client-centred skills and a tendency to be overwhelmed by facts”.3 2 id. 3 burg e, ‘clinic in the classroom: a step toward cooperation’ (1987) 37 journal of legal education 232 at 248. journal of clinical legal education december 2006 78 given that clinic usually occurs in the latter years of a law degree, this is particularly unflattering to both our students and our pedagogy. the australian reality appears to be that students come to clinic with a very small bag of useful equipment for practice – if they have any practice implements at all. traditional law teaching does little to equip them to “jump the chasm” between law and fact. they cannot understand why, in their clinical work, the law always appears reasonably clear and consistent, but the facts as presented to them by clients are a mishmash of events, recollections, half-truths and opinion all presented without chronology or, often, much coherence. nothing they have learned in law school has equipped them to be fact-gatherers and to sort through this mass of information. often they cannot even begin to conceive where information provided by a client fits into the knowledge they have acquired during their law studies. clinicians find themselves having to use a funnel approach – “what unit of law that you have studied do you think this client’s problem falls into?” if a successful response is elicited, the clinician moves onto “what part or topic in the unit do you think covers this problem?” until, at least, the area of law is identified after much struggle and the problem solving can commence. however this is often an artificial exercise, as the client’s problem may span a number of law subjects – a family law problem may stretch across criminal law (family violence), wills, property law, bankruptcy, taxation, alternative dispute resolution and other units of law study. action and reflection clinic, however, provides students with these necessary practice tools, but this is not the limit of the clinical method. it is so much more than this. long ago, clinical teachers threw off the academically elitist accusations that they were teaching “introduction to form filling”. clinic provides an excellent opportunity to offer the dual processes of action and reflection. “action” in legal clinic in australia does not mean just putting an uninitiated student into a room with a client and hoping for a good result. our clinics are gradually becoming increasingly sophisticated and are supported by methodical, comprehensive and pedagogically sound skills-based teaching. as nina tarr, associate professor of law and clinical director of washburn school of law, writing of the us clinical scene states: “skills training has developed far beyond the early days when students were thrown into situations and expected to learn by survival. supervisors in most settings articulate expectations, theories, techniques, etc that they expect the students to incorporate”.4 in their seminal work organizational psychology: an experiential approach to organizational psychology,5 david kolb and roger fry set out their now celebrated learning hypothesis based on four stages of learning. this theory suggests that there are four stages which follow from each other: concrete experience is followed by reflection on that experience on a personal basis. this may then be followed by the derivation of general rules describing the experience, or the application of known theories to it (abstract conceptualisation), and hence to the construction of ways of modifying the next occurrence of the experience (active experimentation), leading in turn to the next concrete experience. all this may happen in a flash, or over days, weeks or months, depending on the topic, and there may be a “wheels within wheels” process at the same time. clinic is a wonderful environment for kolb and fry’s learning theory to really be put to the test. students student assessment in the clinical environment – what can we learn from the us experience? 4 tarr n, ‘the skill of evaluation as an explicit goal of clinical training’ (1989–1990) 21 pacific law journal 967 at 980 (quoting barnhizer ‘the clinical method of legal instruction: its theory and implementation’ (1979– 80) 30 journal of legal education 67 at 70. 5 kolb d a and fry r, ‘toward an applied theory of experiential learning’, in c. cooper (ed.) theories of group process, (1975) london: john wiley. 79 have an opportunity, on a daily basis, to experience, reflect, conceptualise and experiment (within the boundaries set by their clinical supervisors). this “hands-on” approach provides direct transfer of knowledge from the immediate problem being faced by the client and the clinical student, to the next client that presents with a like problem. curiosity and informal learning opportunities besides the urgent “need to know” factor, clinic encourages curiosity by its many processes and the informal discussions which occur between students and supervisors. it is much harder to engender this sort of curiosity in traditional law teaching with large lecture groups and the very public way in which questions must be asked and responded to by the lecturer. curiosity and creativity are linked6 and producing creative lawyers is a worthy objective of any law school. clinic provides an intimate setting for students to ask an endless variety of what they might consider to be ignorant or obtuse questions. provided that an atmosphere of learning is engendered within the clinic, students have the security to know that no question is ever deemed “stupid” and will be patiently answered by the clinical supervisor to the best of his/her ability. further, there are a great many opportunities in clinic for learning to take place outside of the formal student/teacher transactions7 – for example, in informal discussions over lunch at the end of a client intake session or driving to or from court. it is in these situations that students feel relaxed and, it is hoped, secure enough in their relationship with their clinic supervisor to discuss issues that have been raised by the student’s many and various client interactions. the chance to indulge in this kind of free ranging discussion is very rare in the classroom setting – firstly, because the sheer numbers of students in a traditional lecture setting inhibits one-on-one discussion of this sort and secondly, because the atmosphere is too formal and too rigid. further, because lecturers usually have the specific objective of getting through a set amount of material in each lecture period, this discourages the relaxed and familiar environment which is a prerequisite for such interactions. in this author’s experience, many academic colleagues have expressed the fervent conviction that they would thoroughly enjoy the prospect of this informal and fertile teaching environment and are quite envious of their clinical colleagues’ ability to indulge in such a fulfilling form of pedagogy. clinic also differs markedly from lecture style in that clinicians are in the unique position to provide their students with one-to-one, detailed, timely and ongoing feedback as to their progress. feedback in this context is distinct from assessment in that it is a powerful and effective vehicle for student learning. this is one area which sets clinical teaching entirely apart from the mainstream – students benefit enormously from immediate knowledge and insight as to their progress and such information greatly assists them in the “reflection” stage of kolb and fry’s paradigm.8 it then assists them to move forward with a sense of security and purpose to the abstract conceptualisation stage. for example, if a clinical student has dealt with a client and then has received an immediate and helpful critique from her supervisor, this will assist her to reflect on whether she has: a) understood the client’s problem and the legal, social and financial consequences which have arisen, and b) how she has dealt with these issues in a caring and professional way. 6 batt c & katz h, ‘confronting students: evaluation in the process of mentoring student professional development’ (2003–2004) 10 clinical law review 581 at 597. 7 chavkin d f, ‘matchmaker, matchmaker: student collaboration in clinical programs’ (1994–1995) 1 clinical law review 199 at 230. 8 supra note 5. journal of clinical legal education december 2006 80 the student is then in a position to use her insights to move from a personal reflection of her immediate dealing with this particular client to deriving more abstract rules from the experience. further, she can apply principles of her doctrinal learning from law units that she has already studied to a more general understanding of the type of problem this client has presented with. basically, she is able to move from the concrete to the abstract, having the benefit of knowing that she is on safe ground in that progression, as her supervisor has assisted to “ground” her reflections which are derived from the immediate client interaction. without the benefit of the supervisor’s immediate feedback, her move to the abstract stage would be insecure and halting. thus, clinical students have the huge advantage of testing their insights against the hard rock of their supervisor’s knowledge and experience. the feedback which the supervisor provides does not always have to be positive. negative feedback as to a student’s performance with their client can also be hugely productive as long as it is given in a fashion which is designed to assist the student in future transactions. it should be noted that feedback in clinic is not at all related to assessment – clinic has the unique opportunity to use feedback as a way of centring and cementing student learning. it is an essential tool of the clinician in the “reflection” aspect of clinic’s dual objectives of “action and reflection”. a discussion of how clinicians might better use this tool is presented below in the section relating to how we can enhance the clinical feedback process in the future. the medical paradigm it should be noted that clinical methodology is certainly not limited to law schools. the benefit of skills development for students, rather than the process of simple accretion of knowledge, is being acknowledged in various disciplines. mark barrow from the unitec institute of technology in auckland, new zealand states this of higher education across all fields of learning – “there has been a reduction in the value of ‘knowing that something is the case’ and an increase in the value of ‘knowing how’, placing greater emphasis on the development of skills, attitudes and values appropriate to the discipline being studies or the profession being prepared for.”9 legal clinicians can learn from the medical paradigm. for obvious reasons, clinical methodology in medical training has been used successfully for a great many years. amy ziegler, assistant adjunct clinical professor of law at saint louis university argues that the evaluative model role of the medical clinical supervisor10 is directly analogous to that of the legal clinical supervisor. she refers to clinical teaching in medical literature11 which sets out the medical clinician’s role as having three major activities associated with it: 1. structuring the work and learning environments 2. promoting problem solving and critical appraisal skills 3. observing student performance and offering constructive feedback12 student assessment in the clinical environment – what can we learn from the us experience? 9 barrow m, ‘student assessment and knowing in contemporary western societies’ in ‘transforming knowledge into wisdom: holistic approaches to teaching and learning: proceedings of the 2004 annual international conference of higher education research and development society of australasia (herdsa)‘ 4–7 july 2005, miri, sarawak, ed. sheehy. f & stauble b, pp 42– 49, milperra, nsw (herdsa) at 43, quoting peters, m, marshall. j., & fitzsimmons p ‘poststructuralism and curriculum theory: neo-liberalism, the information economy and the crisis of cultural authority’ (1999) journal of curriculum theorizing, summer, 111. 10 ziegler a, ‘developing a system of evaluation in clinical legal education’ (1992) 42 journal of legal education 575 at 583. 11 pratt d & magill m, ‘educational contracts: a basis for effective clinical teaching’ (1983) 58 journal of medical education 462. 12 supra note 10 at 584. 81 clinical supervision precisely mirrors these activities. clinic is essentially about the process of resolving problems, not the answers themselves13 and these three activities provide an excellent structure for thinking about the function of clinical supervision. the beauty of this model is that it can be individualised for each student’s particular learning needs, whilst still retaining its basic construction. thus, ziegler suggests, a clinician can vary the teaching approach, contingent upon the teaching task at hand, as that of: • expert • model, or • facilitator ziegler states: “as expert, the clinical supervisor gives students authoritative information without necessarily demonstrating the thought process or skills used to obtain them. as ‘model’, the teacher demonstrates the skills and thought processes of a good clinician providing an ‘open book’ that learners may watch and imitate. as a ‘facilitator’, the teacher guides the student in doing the actual work while focusing on helping the student acquire and analyse information.”15 this sort of flexibility is simply not available in traditional lecture-style teaching and thus this demonstrates the paucity of this “one size fits all” teaching methodology, compared to the range of teaching implements available to the clinician. thus, clinical methodology provides opportunities for learning much more than just technical skills or a body of knowledge. it enables clinicians to mentor students in all aspects “what makes a good lawyer (or doctor)“ relevant to the needs and abilities of that particular student. legal clinics teach much more than traditional legal skills and the focus of what is being learnt is very different to traditional legal pedagogy. thus, the assessment regimes that we develop need to take into account all aspects of what is being taught – over and above the traditionally “measurable” basic legal skills – and find relevant and creative methods of measuring what our students are learning. these assessment methodologies need to be flexible enough to take into account our students’ individual learning needs and yet also be even-handed and pedagogically defensible. why is assessment in clinic different? the focus of assessment in clinic must be distinct from traditional assessment methods because the teaching methodologies being used are distinct. the clinician, in teaching process rather than knowledge, obviously must therefore assess process and not knowledge. because clinic focuses on qualities such as practical skills, creativity, enthusiasm and effort these are the areas that must be suitably assessed. generally, clinic is not focussed upon teaching a body of knowledge, or even “traditional” law school skills like research and legal writing and thus it is not appropriate to attempt to assess these features. students, do, however, learn a body of “knowledge” in the traditional sense whilst working in clinic. they come out of clinic often with a new set of skills and a wider knowledge base, not only of the law itself, but its processes, abilities and (more often than not) its disabilities. clinical pedagogy does not derive its knowledge base from appellate decisions and thus students learn knowledge by involvement in particular legal situations from which they can enhance and deepen their knowledge and insights into legal doctrine. this is learning the law in a totally different way than they have been exposed to in academia. anthony 13 ibid at 587. 14 ibid at 585. 15 id. journal of clinical legal education december 2006 82 amsterdam, professor of law at new york university law school sums this up as follows – “the academic teacher seeks to enrich understanding of the general by deriving abstract principles from the particular; the clinician seeks to enrich understanding of the general by refining a capacity to discern the full context of the particular.”16 the skills of self-reflection and evaluation apart from learning a knowledge base and a set of practical skills, students also have the ability in clinic to fully immerse themselves in the skill of self-reflection. i believe australian law school are only just now on the cusp of fully drawing out the potential that self-reflective skills can provide to students’ legal learning. self-reflection is a large part of the focus of clinical pedagogy in the u.s and is a key aspect of the teaching in various us clinics. self-reflection provides students with insights into their own professional and ethical behaviour and enables them to pause and consider the way they are interacting with their supervisors, colleagues, legal clinic staff and, most importantly, their clients. the skill of self-reflection is often implicit in clinic work and is used by clinicians to assist students with their metacognitive abilities. by asking a student: “how would you go about finding the resolution to this dispute? what might be the appropriate approach?” and “how would you do this differently next time?” we are achieving a dual purpose: 1. modelling a lawyering practice which is careful and reflective, and 2. providing tools for improving metacognition (that is, problem solving) skills. thus, we are able to provide guideposts for the students to use in creating a plan of action to resolve a client’s problem, to then monitor that plan as it unfolds, and to finally evaluate it in terms of effectiveness in order to determine how to amend the plan when a similar problem is presented in the future. ziegler describes “evaluation methodology” as a process of ongoing dialogue with students, directed by the clinical supervisor.17 it is a skill for which clinic provides a perfect environment, because there are myriad opportunities for students to practise and the close presence of the clinical supervisor to guide the process. ziegler defines the process as follows: “evaluation means helping students uncover assumptions, querying the purposes and source of their beliefs and providing opportunities for discussion about legal policy questions which arise from the client’s problem.”18 it is my submission that “evaluation methodology” has an even wider focus than that described by professor ziegler. it is not only a lifelong professional skill, but a life skill in itself which can assist students in all aspects of their life, both professional and personal. in this way, clinic may have a much broader benefit to its students – not only are we providing students with professional skills, but with basic life survival skills. this appears to be a considerable assertion to make about just one unit of study in our students’ academic careers. however, there are many aspects of clinic in which students are confronted with unique and challenging experiences which, anecdotally, have a significant impact on their outlook and thought processes. the ability for students to learn a methodology of reflection and self evaluation is often just one of the many benefits a student acquires from the clinical experience. the teaching of ethics is also implicit in this form of pedagogy. when we model, teach and assess reflective skills, we are demonstrating a powerful message to students about the sort of legal professionals we want them to be. we are demanding that they must factor in the full consequences of their legal advice and student assessment in the clinical environment – what can we learn from the us experience? 16 amsterdam a a, ‘telling stories and stories about them’ (1994)1 clinical law review 9 at 39. 17 supra note 10 at 575. 18 ibid at 570. 83 their professional behaviour and not just react to situations by attempting to utilize a “quick fix” or a “one size fits all” philosophy. in this regard, clinic isn’t teaching ethics, but “doing” them and this ethical message is being provided to students in the way we expect them to behave in their interactions with clients, other legal professionals and their clinic colleagues., nina tarr believes that academic law teaching by comparison actually discourages the self-evaluative process by our insistence on always being the expert and handing down our evaluations, rather than encouraging students to do it themselves.19 reflective journals a number of law schools around australia have embraced the concept of a “reflective journal” being a compulsory element in the assessment of clinic. for example, flinders university in adelaide, south australia provides a course known as “community legal practice” in which 30% of the clinical assessment is for the professional journal students must write.20 this aspect of the course requires the students’ observations and insights and is based on the belief that the students’ ability to take control of their professional development in an essential part of any professional’s learning process.21 the requirement is that the journal is maintained on a weekly basis. thus, at this flinders university school of law clinic, the students are not evaluated on their skill level, but on their “”initiative, involvement, perception and understanding of the broader issues elicited from the activities they are involved in.”22 similarly, sydney’s macquarie university department of law offers the macquarie legal centre legal program. the students undertaking this course are required to write a reflective journal of up to 500 words per session day (the students must attend 9 out of 10 session days to pass the course), covering such issues as the lawyer/client relationship, client communication, access to legal advice and gaps or anomalies in law and legal procedure. the journal forms part of each student’s required “placement report” which is worth 50% of the final assessment in the subject.23 james cook university in north queensland, in its clinic based at the townsville community legal service, provides 20% of its unit assessment for a reflective journal, requiring critical analysis of • social justice issues • the role of law in society • advantages and pitfalls of skill based learning • self reflection of interview performance • areas in which community legal services could be improved24 finally, monash university law faculty (the first in australia to offer clinical legal education)25 has offered its students the option of writing a reflective journal in place of the 20% assignment portion of the clinical unit for the first time in first semester 2006. at this stage, students are being asked to pose the following questions as part of the reflective process: • how and why does the client find him/herself in this situation? 19 supra note 4 at 971. 20 flinders university topic guide for “community legal practice” semester 1, 2006 at 5. 21 ibid at 6. 22 id. 23 macquarie university division of law study guide – “law 443 macquarie legal centre clinical program semester 1, 2006” at 4. 24 email from bill mitchell townsville community legal centre, 15 february 2006 25 clinic commenced in 1975 as a joint venture between the then springvale legal service (now springvale monash legal service) and the law faculty. journal of clinical legal education december 2006 84 • what is the policy rationale for this that might explain it? • how can the effects be mitigated? • what can i do to ensure that the injustice does not happen again? • from whose perspective is it unjust? • how and why did this affect me so much? (or why didn’t it affect me at all?) students are required to submit journal entries to their clinical supervisors on a fortnightly basis, and generally the issues that they are asked to reflect upon will arise in the course of their client interviewing session. the students are advised to spend some time after each session thinking about issues which the clients raised and questions arising therefrom and then writing them down in a structured and coherent manner. students are instructed that they must be prepared to bring their latest journal entry with them in order to discuss it at their weekly file review with their supervisor. they are expected to write approximately a half to one page of the journal per entry. how this is to be assessed is still a matter of some concern and the debate continues. the main problem is how to assess insight. many clinics simply use the “hurdle requirement” method of assessment for journals – that is, if a student has submitted the correct number of journal entries during the semester, this will satisfy that aspect of the unit and the actual content of the entries themselves is not graded. it is submitted, however, that a graded assessment must be provided for this aspect of the students’ clinic work for them to take it seriously. the us experience can be of direct benefit in this regard. as one us clinician reports: “…the externship was pass/fail and i had little leverage to force a higher level of work. the students correctly guessed that i would not flunk someone for failing to be conscientious about their journal.26 this venture into the concept of reflective journals by clinics in australian law schools is, arguably, still somewhat unsophisticated in the pedagogy of student self-evaluation and we have much further to go to develop and enhance this unique area to its full potential. tarr has argued that historically, clinical teachers are just too busy with high file loads to take time to examine their teaching methodologies and develop theories about effective teaching and assessing models27 – this comment is apposite for australian legal clinics today. however, this is where we can learn from the us in its more developed treatment of student self-evaluation and most importantly, the way this facet is assessed. the problem that we face is that we are still trying to asses students in clinic in a similar way to other academic units. this is unfair as it does not meet with our “process” and self-evaluative focus. how we can ameliorate this situation is tackled in the next section of this paper. student assessment in the clinical environment – what can we learn from the us experience? 26 supra note 4 at 992. 27 supra note 4 at 977. 85 what is the best way to assess students in clinic? an individualistic assessment regime the first matter to deal with in determining the optimal way to approach clinical assessment is resolving the ways that we cannot assess students. it is impracticable to grade clinic in relation to the completion by students of standardized tasks (like writing a letter of advice, or a plea in mitigation of sentence) because clinics simply do not have typical or set tasks.28 thus, if we are assessing things like self-reflection, ethical awareness, process, technique, problem solving and professional responsibility we need to find creative ways to do this. to a certain extent, this requires participation in an individualistic assessment regime. this means that we can, and should, have the flexibility to create an assessment design that can be individually tailored for each one of our clinical students. this does not require us to re-invent the assessment regime for each student that enters the clinic, but it does mean that our assessment methodology should be flexible enough to cater for, and measure, a diverse range of students’ skills and abilities. the us literature is quite rich and diverse on the subject of assessment relationships in legal clinics. the experience in the us has been one of very individualistic grading practices amongst clinicians and there is little to suggest that a systematic methodology for grading clinical work has emerged. there also appears to be a feeling that many of the skills that we value in clinic are exceptionally hard to monitor and grade. for example, the concept of “professional responsibility” may be defined in various ways by different clinical supervisors. this is graded at one of the clinics in cleveland state university and is defined as “the ability to recognise the ethical considerations in a situation, analyse and evaluate their implications for present and future actions, and behave in a manner that facilitates timely assertion of rights.”29 however, this is just one clinic’s opinion as to what the concept means. it is also pointed out by clinicians that, once a definition has been agreed upon for a particular skill or ability we wish to cultivate in our clinical students, it is difficult to assess given the limited time available to supervisors to observe individual students.30 thus, most clinics that provide their students with a final grade do so on the basis of detailed and itemised grading sheets which provides a wide opportunity for students to show prowess in a broad range of areas instead of being limited to proving their “worth” within a limited range of set criteria. for example, the “families and the law” clinic of the catholic university of america columbus school of law has a grading criteria which encompasses 44 different assessment criteria, grouped under six different classifications of skills.31 similarly, pace law school in white plains, new york provides 61 items of assessment criteria, grouped under eight main skills area and four further “sub-skills” with a further section for the supervisor to make additional observations.32 these sub-skills include such items as “awareness of psychosocial/economic/scientific, etc. factors in legal situation” and “nonverbal communication, ‘body language,’ professional presentation of self”.33 this is a good example of a clinic’s ability to teach and subsequently assess important skills for lawyering which do not fall within the tradition enquiry of “can the student undertake research or write pleadings?” in this way, assessment is highly particularized to the individual and students are able to accumulate marks 28 cort r, ‘a.a.l.s. clinical legal education panel: evaluation and assessment of student performance in a clinical setting’ (1980) 29 cleveland state law review 603 at 604. 29 ibid at 622. 30 supra note 6 at 605. 31 brustin s & chavkin d, ‘testing the grades: evaluating grading models in clinical legal education’ (1997) 3 clinical law review 299 at 313. 32 pace law school – john jay legal services “evaluation of student work” found at 33 id journal of clinical legal education december 2006 86 in various areas where their talents are to be found. if we are committed to providing grades in clinic, rather than simply a pass/fail assessment (this debate is covered later in this paper) then the lesson to be learnt here is that we must recognise individual student strengths in our assessment by providing a multifaceted and detailed marking regime that allows students to learn and to be assessed in individual ways. if we pride ourselves on the fact that we do not subscribe to a “one size fits all” teaching methodology, we cannot have a standardised appraisal scheme. of course, the drawback of such an individual method of assessment is the huge resource issue in terms of staff/student ratios and the sheer time required to observe, analyse and keep adequate records of each student’s particular progress in the clinic. there is also the fact that clinic is generally a continuous assessment regime. this is very positive for students, as this provides formative assessment throughout the course of the clinical unit – however, it does place clinicians on a “constant treadmill of assessment.”34 whilst acknowledging these issues, it should be remembered that resourcing is not a new issue to clinical programs. clinics are always expensive to establish and financially difficult to maintain. the upside is that they are usually staffed by a tremendously dedicated and committed team that is prepared to take on the extra assessment load required if it means getting it “right”. the pass/fail v grading debate in a 1994 journal of legal education survey of grading in clinics, 120 universities in the us were surveyed and the following results were discovered:35 1. 37% of clinical courses used a fully graded model 2. 39% graded students on a pass/fail basis 3. 19% utilised both a pass/fail and graded method 4. 1% gave no credit at all. 5. 3% did not respond it seems that, at least amongst the law schools that responded to this survey in the us, the clinical grading debate is almost equally divided. anecdotal evidence from clinicians in australian law schools suggests that there is a similar division in this country. stacy brustin and david chavkin both of catholic university of america columbus school of law, in their article ‘testing the grades: evaluating grading models in clinical legal education’ ask a series of essential questions about the value of grading in clinic, specifically:36 • what does grading achieve in clinic? • does it encourage students to be more professional? • should marks be given to students who perform best, or to students who improve the most? • is grading necessary for academic credibility? • how do you grade a student who works hard but whose performance is not very good? student assessment in the clinical environment – what can we learn from the us experience? 34 johnstone r & vignaendra s, ‘learning outcomes and curriculum development in law’ (2003) report to the australian universities teaching committee of the department of education at 367. 35 kaufman n a survey of law school grading practices 44 journal of legal education 415 (1994) at 417. 36 supra note 31 at 301. 87 answers to these questions are fundamental to the underlying pedagogical aims of every legal clinic. the answers do not have to be identical in every clinic, as diversity of aims and pedagogical aspirations are certainly to be encouraged – however, it is vital that these issues, and others relating to assessment, are tackled by clinicians it is interesting to note that, despite the divided views amongst clinical teachers, when clinic students were given a choice as to whether they wanted to be graded, 84% went for the graded option.37 this does not necessarily mean, however, that grading in clinic is in students’ best learning interests. it is submitted that in a graded clinical environment, a tension exists between the community service goals of the clinic and the students’ endeavours to achieve grades. this can be a positive tension, and, arguably, can result in a better educational process and consequentially a higher level of client service delivery.38 further, the students having to determine for themselves the issue of what is the focus of their involvement in the clinic – their grades or community service – is in itself an fertile area of discussion clinical supervisors can enter into with their students. the downside of this tension is that the poorer students can be induced by the absence of an exam to treat clinic as having less academic credibility. the consequence of this outlook is that their standard of work suffers and much more critically, their clients’ interests are not taken care of adequately. it has also been argued that clinics are intended to be safe environments for students to experiment, satisfy curiosity and explore their own values, assumptions and motivations.39 grading students may interfere with the non-judgemental environment,40 inhibiting students’ desire to explore and test themselves for fear of “getting it wrong” and consequently losing marks. further, it may be an additional source of stress and preoccupation for students in an already stressful environment.41 alternatively, grading may have the opposite effect on students – it can have a motivational effect and lead to a higher level of professionalism.42 grades also provide the opportunity to acknowledge the time, effort and labour that students contribute to their clinical work. finally, there is always the “external” issue of the academic credibility of the clinic. grading makes a statement to both the students and the faculty that clinic has as much academic rigour as other “black letter law” units and students will be subjected to the same exacting regime as their other units of study.43 brustin and chavkin’s rigourous investigation44 led them to conclude that there are “tangible benefits” to grade students in clinical courses which, they believed, may improve the pedagogical process and augment service delivery to clients.45 despite this study, the “to grade or not to grade?” debate is far from over in legal clinics and is unlikely to be resolved. it is a healthy and necessary issue to deliberate upon and keeps clinicians focussed on their pedagogical aims, despite the fact that a consensus may never be reached amongst, or indeed within, law schools if clinics do choose to grade their students, it is essential for the grading criteria to be detailed, systematic and transparent. it is also submitted that, if a law school runs more than one clinic, for example a general law and a specialist clinic, that there be universality of assessment methodology between both. despite the fact that the subject matter or the legal foci are different between the clinics, the same skills and professional processes are being learnt, and thus the assessment regime should reflect this. 37 ibid at 302. 38 ibid at 307. 39 schrag p, ‘constructing a clinic’ (1997) 3 clinical law review 175 at 202. 40 id. 41 supra note 33 at 306. 42 id. 43 ibid at 307. 44 id. 45 ibid at 308. journal of clinical legal education december 2006 88 student teaming student collaboration and the formation of student “teams” in clinical work is an issue which has elicited some discussion on the us clinical literature.46 this appears to be an under-utilised aspect of clinical pedagogy in australia and the question arises as to whether the us experience can be valuable for australian clinics. certainly, the issue of students working in clinical collaboration is a relevant issue in that it reflects the reality of participation in teamwork which will be required of them later in professional life. in learning outcomes and curriculum development in law, a report to the australian universities teaching committee of the department of education in 2003, richard johnstone and sumittra vignaendra of the university of new south wales found that compelling students into teamwork has been a matter of some difficulty in australian law schools. as one academic comments: “one thing which is very difficult – to have all these incredibly independent and personally motivated students, and they never want to do things together in groups. you tell them that in real life when they go to work, everyone works together with others in groups – you don’t have to like them, but you have to learn to work together. we start them off in first year doing little things in groups, such as presenting in class, and they loathe it…they sit in class and won’t put up a hand or answer in case they are wrong. it is an incredibly selfish approach to learning. they think ‘i got here, i got a high [university entrance score], i am not going to give away anything, this is about me and my achievement’. this is one of the biggest challenges in teaching.”47 however, some us clinicians have argued that the major benefit of requiring students to collaborate in a clinical setting is bringing together the practical resources of students who have different skills and knowledge bases. ideally, each student benefits from the other and the client benefits from both. further, any conflict between the students can be resolved in a positive and beneficial way for both of them. student collaboration can teach students professional autonomy as they learn to make decisions jointly,48 without resorting to a dependence on a hierarchy to impose decisions upon them. because students have diverse life experiences, not only can they develop an insight into their clinical colleague’s motivations and reasoning processes, the ability of the student pair or team to understand and appreciate the client’s experience may also be enhanced.49 finally, having the support of another student may assist in reducing a student’s anxiety and self doubt in the challenging clinical environment.50 the drawbacks of student teaming must also be investigated. principally, there is the issue of the diminished client service that can be provided – the simple arithmetic is that requiring students to work in pairs will reduce by half the number of clients that can be seen in a given period. this comes back to the tension between client service delivery and the pedagogical focus, the resolution of which will depend very strongly on how the clinic perceives its role in the community as opposed to its function as a university teaching facility. the other question which must be posed is whether student teams actually collaborate at all. chavkin reports that he discovered much evidence of parallel work practices occurring in student teams. in many cases the students did not attempt to pool resources, but simply divided up responsibilities into discrete student assessment in the clinical environment – what can we learn from the us experience? 46 see especially bryant s, ‘collaboration in law practice: a satisfying and productive process for a diverse profession’ (1993)17 vermont law review 459; chavkin d f, ‘matchmaker, matchmaker: student collaboration in clinical programs’ (1994–1995) 1 clinical law review 199. 47 supra note 33 at 373. 48 bryant s, ‘collaboration in law practice: a satisfying and productive process for a diverse profession’(1993)17 vermont law review 459 at 460. 49 chavkin d.f “matchmaker, matchmaker: student collaboration in clinical programs” 1 clinical law review 199 (1994–1995) at 213. 50 ibid at 215. 89 sections and worked on them unaccompanied by their partner or other team members.51 in these situations, there is no need for consensus between students for decision making, or necessity to exercise negotiation or interaction skills as part of a joint venture – the team association is simply ignored. further, when students do make a genuine attempt to work in collaboration, one must speculate if consensus about decision making or direction of casework actually takes place at all, or whether one or more members of the group are just giving in to the majority or the strongest personality. finally, there is worrying evidence that less responsible decisions are actually made by groups,52 a phenomenon expressed as “groupthink”53 in which the ethical standards of a team are reduced by the anonymity of mass responsibility in addition to the issue of the pedagogical value of student teaming in a clinical environment is the more pertinent issue of how the clinician assesses them. chavkin points this out as one of the most common problems noted by clinicians who supervise student teams.54 for the clinician, there are a range of problems associated with how to correlate client outcomes with group participation and how to attribute marks to members of the group who are variously lazy, domineering, less intelligent than other members, inhibited or apathetic. it is my submission that, however difficult one perceives individual clinical assessment to be, if clinicians are attempting to be even-handed in their marking, group clinical assessment is even more arduous. this does not mean that student teaming it is not appropriate to the clinical environment. it does mean, however, in clinics where teaming is enforced, that students are told candidly and unambiguously at the commencement of the clinical experience that a genuine collaboration with their team members is expected. it also means that if students’ ability to work in teams is being assessed, that this fact is explicit and that students are provided with details of how these marks are assigned. further, it requires a thorough understanding of the pedagogical aims of student teaming amongst the clinical supervisors and a commitment to fairness to individual students, which is not blurred by the complications of team interactions. feedback law teachers report a consistent criticism from students that the students do not receive enough feedback from teachers on their general progress, and on the performance in assessment tasks.55 clinicians are in the unique position to provide their students with timely, one-to-one feedback. however, clinicians are often justifiably criticized for squandering this constructive pedagogical tool because they don’t approach the critique of students in a systematic or productive fashion. accordingly, it is submitted that there are some basic approaches that supervisors in clinical programs should take in order to maximize the way positive criticism can be provided to students. in this way, feedback can become a useful pedagogical tool and an agent for further and deeper learning in the student: • praise should be given in public and criticism in private. it is never appropriate to belittle a student in front of others. this serves absolutely no purpose and just denigrates the student concerned. negative feedback must be given in private. students have the right to keep their mistakes private from their peers. praise in public, however, is the corollary of this rule. a word or two of praise in front of other students will always be appropriate, 51 ibid. 52 ibid at 223. 53 janis i, groupthink: psychological studies of policy decisions and fiascos 1982, houghton mifflin, boston. 54 supra note 47 at 227, 55 supra note 46 at 379. journal of clinical legal education december 2006 90 however – as long as such public praise is divided equally amongst students. • criticism sessions should end positively. there are always encouraging things to say to a student no matter how much they are struggling and no matter how far they have to go to develop skills. if a supervisor has spent time being critical, they should always try to find at least one affirmative comment and make this the last part of any criticism. it does not have to be a substantive piece of praise, as long as it is an encouraging observation which can leave the student feeling that there are aspects of their work or the effort they are making that are appreciated. • students should be asked for feedback on themselves before the supervisor provides it. students are often remarkably good at self-evaluation and usually will pick the item/s that requires discussion with them in a formal self-assessment session. if an official feedback sheet is provided for a more formal or methodical feedback session, this should include a section in which the student could provide a self-assessment. if the student correctly identifies the area/s of weakness, it softens the feelings of criticism, as the supervisor can commence observations along the lines of “i’m glad you pointed that out, as that’s the very thing i wanted to discuss with you…“, thus leading neatly into the critique. conversely, students will sometimes point out an area as a strength which the supervisor wishes to discuss as a weakness or a matter for further improvement. this need not be an insurmountable issue and can have its pedagogical value. for example, a student may like their own formal or officious communication tone which they have adopted in their letters to clients, and the supervisor may wish them to adopt a more approachable, plain-english style. they would have identified their letter writing as a strength, because to them it sounds more professional and “lawyer like”. the supervisor may feel that such a style acts as a barrier to communication. in such a situation, the supervisor could commence a discussion with the student about the appropriate function as lawyers in the communication process and potential role in de-mystifying the law for clients by use of language. thus, despite the fact that the student had measured themselves in this area completely in opposition to the supervisor’s assessment, a useful, and it is hoped, positive dialogue can ensue. • feedback should be requested on the supervisor’s performance. this is simply providing students with a right of reply and an opportunity to also provide a critique. they are usually very reluctant to do so, but will sometimes open up if convinced that it cannot affect their final grade in any way. if they do take up the challenge and provide a critique of the supervisor’s teaching, supervision or legal work, it is incumbent on the clinician to model appropriate behaviour and not get angry with their criticisms or make excuses. the critique must be taken in the open environment that it is given; remembering the very distinct power imbalance that always exists between teacher and student, despite the fact that it is less obvious in the clinical setting. for most students, it will take an act of courage to appraise their supervisor directly to his/her face, but if clinicians are sincere in their desire for a student to do so, they should be rewarded for it by mature and insightful responses from their supervisor. • supervisors must be forthright. evaluations should be obvious and clear. criticisms and future expectation for improvement should be as clear as possible. colloquial “asides” that are meant to be humorous should be avoided as they are often not taken as so. clinicians need to take into account that law students often have large egos, but they student assessment in the clinical environment – what can we learn from the us experience? 91 also deflate very easily. students will often remember one flippant or negative aside that is made in clinic for years afterwards and retain unnecessary bitterness against their supervisor based on a simple miscommunication. this is not to say that clinicians should be in fear of students not valuing the critiques made of them – part of being courageous and straightforward with students is an acknowledgment that they will not like what is said to them and therefore may not like their supervisor. clinical supervisors should be able to live with this (as should all teachers) – but this aversion by the student of a critical analysis of their clinical work should not be based on a misapprehension of what was actually said – that is, it should not be based on a lack of ability to communicate a clear message. • a written summary of the discussion should be provided. if a student is a possibility of failing or doing very badly in the clinical unit, feedback discussions should be summarised in writing and a copy provided to the student. any expectations enunciated in such a document should be very clear and obvious, with deadlines provided for achieving certain tasks, if appropriate. in this way, the fact that it is in writing makes it exceedingly obvious that the supervisor is very serious about expectations. further, if the student fails to satisfy the criteria set out in the letter, a supervisor cannot be accused later of being unclear in their expectations when the student ultimately fails the unit or does poorly. • formal feedback must have the same structure for all students. clinical units afford the distinctive opportunity for supervisors to engage in one-to-one teaching. this is obviously a pedagogical strength, but an assessment weakness. the most prevalent accusation which is levelled at assessment in clinical programs is that of subjectivity. as such, clinicians are under an obligation to ensure that assessment of students is always completely above reproach. accordingly, a particular structure for prescribed feedback sessions should be settled upon and then not varied by individual supervisors within the clinic. students always compare what is said to each other, so each student should be provided with the same structure. if not, certain individuals will feel they are being victimized, or that others are being favoured. • supervisors should not wait for a formal feedback session. critiques should be given in an ongoing fashion to ensure students have time to improve performance. there is no purpose in a supervisor being unsatisfied with students’ work, and not telling them. criticism should not be stored up for one big session, as this may have damaging consequences on a student and be more of a setback in their performance than a constructive experience. instead, well-timed and minor criticisms should be provided. of course, supervisors must also be careful of constant nagging in which particular students are always being criticized– an attempt should be made to achieve a balance with positive comments if at all possible • transparency. this is essential. clear, concise, thorough and non-defamatory records of students’ progress throughout their work period at the clinic must be kept. students should be advised of their ability to have a copy of all written comments and a complete breakdown of their marks when the course is completed. notes should always be thoroughly professional – with no personal asides or irrelevant comments not associated with work performance. written records should also all be of one nature – the same comment structure or marking sheet format should be used for all students with notes written about all students at the same time, if possible. again, the fundamental basis of journal of clinical legal education december 2006 92 this is being systematic in the approach to assessing students in the clinic and providing feedback in a clear, even-handed and impartial way to all students. • students carry emotional baggage. students all have different and varied circumstances that impinge on the quality of their work in the clinic and their commitment to the unit and their clinic clients. in many law schools, clinic is but one unit of study in a busy law course and must be juggled with the students’ social and work life. taking this balance into account at all times should make supervisors hesitate before verbally attacking a student with harsh comments about things like punctuality and responsibility if, for example, a student has let their clinical colleagues down or missed an appointment. students should always receive the benefit of the doubt – something appalling may have happened in their lives which made them unable to perform a work task or be on time and, as such, matters would need to be approached in an empathetic and compassionate manner – thus modelling the way clinicians would want their students to interact with their own clients. providing feedback to students in a clinical setting should never be considered a chore. it has vast pedagogical implications and can be a powerful educative tool. clinicians cannot afford to deal with the giving of feedback in a piecemeal fashion – it should not be approached in a half-hearted or unprofessional manner, especially considering the denunciation that clinicians are often subjected to of clinical units being not subjected to the same academic rigour of other, more “mainstream” units of legal academic study. if legal clinics are to continue to win the academic credibility battle within their own law schools, clinicians must approach student assessment and feedback in a prescribed, thorough and meticulous manner. the clinical teaching style can, however, stay open, friendly and supportive – the learning atmosphere of a clinic is often the reason students thrive so well. however, underlying the clinical teaching style should be an approach to feedback that is consistent amongst all supervisors in the clinic and which cannot be questioned for lack of diligence or attention to detail. in this way, students can receive a supportive and benevolent working environment where they will feel comfortable to take learning risks and expose themselves to the full learning experience which legal clinic can provide. feedback, however, is not a formal assessment tool. as cynthia batt and harriet katz put it, it is “part of a larger evaluative process assessing a student’s overall attitude, work habits, and approach to lawyering.”56 thus, there are often matters raised in feedback sessions with students which clinicians do not specifically measure in their summative assessment – discussion about students’ attitude and behaviour towards administrative staff in the clinic is an example of an issue which is often raised in feedback sessions, but is usually not formally assessed. however, students’ responses to feedback and their progress after the provision of feedback are measurable items and therefore assessable. thus, although feedback does not form an immediately assessable aspect of students’ clinical work, it is an integral part of the process which leads to formal assessment. student assessment in the clinical environment – what can we learn from the us experience? 93 56 supra note 6 at 584 predictions for the future? batt and katz in confronting students: evaluation in the process of mentoring student professional development57 set out a number of issues that are essential for mentoring and evaluating the professional development of students in clinical courses: 1. professional development must be understood to form a substantial aspect of the clinical curriculum. 2. there must be appropriate goal setting between the supervisor and the student at the outset of the clinical experience. the students have to know the supervisor’s professional development goals or priorities 3. we need to develop a systematic pedagogy in order to teach professional development which incorporates precise, specific language. this pedagogy must include the engagement and reflection of students. 4. we need to use performance specific feedback as a vehicle for on-going assessment of professional development issues. 5. we need to evaluate student progress on a periodic basis in my opinion, australian legal clinics need to take up the challenges offered in this inventory of issues. our pedagogy is still “fuzzy” and requires a much stronger focus. currently, we are squandering opportunities to develop a consistent and lucid learning theory that we can be comfortable with – a bedrock upon which we can build our assessment methodologies. our goal-setting and assessment processes need to be constantly under the microscope and not something that we take on occasionally, in a sporadic way58 or as a reaction to a student complaint or the threat of a faculty review. in the past decades, there has been a steady growth in the number of legal clinics being developed around australia. the programs being offered are diverse and creative and offer exceptional learning opportunities for law students. australian legal education is slowly moving towards the us paradigm of a clinic or more in every law school. this growth posits a number of issues which require dialogue, such as: 1. what does the growth of clinics and their increasing centrality in the law school curriculum mean for grading generally? 2. in the light of clinics’ increasing role in legal education, how can clinicians ensure that clinics retain their focus, whatever they believe that to be? 3. what are clinicians devoted to inculcate law students with – technical skills, ethics, self reflective processes, ability for adult life long learning? which of these are important and how will clinical grading systems reflect clinicians’ perception of these skills or abilities? these are the sort of issues that australian law clinicians need to be grappling with. they are no longer “experimental” or pilot programs and thus cannot afford to be devoting themselves to the technical or practical “here and now” issues. the focus needs to shift from immediate survival to the development of a long term and pedagogically sound vision for the role of legal clinics in the development of ethical, selfreflective and competent lawyers. 57 supra note 6 at 607–609. 58 o’leary k, ‘clinical law offices and local social justice strategies: case selection and quality assessment as an integral part of the social justice agenda of clinics’ (2004– 2005) 11 clinical law review 335 at 339. journal of clinical legal education december 2006 94 conclusion historically, australian legal clinicians have been so busy struggling for basics like accommodation, funding and academic recognition that they have not had the time or energy to create a systematic pedagogy or assessment philosophy. it is certainly an exceptionally under discussed and little published area of clinical practice which requires further examination. clinicians have relied, to a large extent, on the positive student experience in clinics and the resultant lack of criticism of the grading processes. however, the good grace of students does not replace a sound educative theory. much of the past assessment practices have been based on clinicians’ instincts as lawyers and educators on what is individually believed to be important. the non-static aspects of clinic need to be recalled – to a certain extent clinical teaching is a “movement’ and thus needs to continue to develop if it is to stay relevant and appropriate. individualism in legal clinics around australia currently appears to work in reverse – supervisors expect students to fall into particular grading categories and comply with grading curves appropriate to other law units, whilst allowing themselves individualism in their understanding and observance of assessment processes, focus and outcomes. by comparison, us clinics have instigated assessment regimes which are very individualistic in their treatment of students and their different learning styles. there is an acknowledgment (missing in australian clinics) of the “personalisation” of the clinical experience for students – each student’s experience in clinic is different by the very nature of what a clinic is and the assessment methodology is flexible enough for the students to benefit from these individual experiences. supervisors in us clinics, however, are focussed, in agreement and have a sound understanding of their grading practices and the rationales which underpin them. this is not because us clinics are better – it is a result of the fertile discussion, dialogue and debate which has been able to flourish once clinics became an integral part of the us legal education landscape. legal clinicians in australia, having fought and won the battle of credibility, now have the opportunity to engage in that level of discourse. in my opinion, the discussion can now move forward to deal with the complex issue of assessment in legal clinics in order for us to develop what is yet in its infancy in australian legal clinics – a robust, articulate and focussed pedagogy. student assessment in the clinical environment – what can we learn from the us experience? 95 from the field practice report – clinic, the university and society after arrival, the problems facing refugees and their families: a clinical legal response james marson, sheffield hallam university katy ferris, nottingham university[footnoteref:1]* [1: * james marson is head of research for law and reader in law at the helena kennedy centre for international justice, sheffield hallam university, uk. katy ferris is assistant professor of business law at nottingham university business school. the authors would like to thank the anonymous reviewers for the helpful comments made on a previous draft of this paper. errors and omissions remain our own.] abstract since 2016, a refugee family reunion law clinic has operated from sheffield hallam university’s helena kennedy centre for international justice (hereafter hkc law clinic). given the austerity-driven political agenda of the uk government in cutting public funding to advisory services, the effects of laspo and a continuing refugee crisis, refugees in many parts of the uk were in need of legal and non-legal assistance. to fill this gap in services university law clinics, including our own, began to offer specialised services to assist the refugee population. this has included family reunion and exceptional case funding applications, and expert legal advice for individuals who find themselves stateless, yet in many instances the formal assistance ends at this stage. the hkc law clinic and its staff have remained in contact with many of our refugee clients (some are now engaged as interpreters). through this interaction we have observed a particular problem of the lack of post-arrival support for refugees and their families. developing the therapeutic jurisprudence philosophy upon which the clinic is based, and thus ensuring a therapeutically positive experience for the clinic’s users, we have begun a process of creating a more holistic clinical experience. following the refugee clients’ successful family reunion application, and when building their new lives together in the local region, our clinic offers a range of support services to assist in the pragmatic issues facing the family. this aspect of the hkc law clinic is in its infancy, but this paper aims to demonstrate what university law clinics can achieve and provides examples of our experiences so far. introduction in this paper we aim to highlight a number of issues facing refugees and their families following reunion in the uk (and specifically to england and wales). the authors run a law clinic in a university in england which specifically offers guidance for refugees in the local community to be reunited with their families living abroad. far from being a straightforward system,[footnoteref:2] refugee family reunion cases are often very complex, time-consuming, require considerable research[footnoteref:3] and, frequently, financial contributions to assist in gathering the required evidence to substantiate an application.[footnoteref:4] with the removal of legal aid for such cases through the legal aid, sentencing and punishment of offenders act 2012 (laspo), and pending the successful passage through parliament of the refugees (family reunion) bill, university law clinics, among other pro bono actors in the sector, are filling the gap in guidance. [2: see jacob beswick, not so straightforward: the need for qualified legal support in refugee family reunion, british red cross (2015) and anne staver, family reunification: a right for forced migrants? refugee studies centre working paper series 51 (2008).] [3: for instance, there is relatively little information regarding published or consistent time scales for the application process and overcomplexity in the use of the online visa application system (the tls contact website) and ancillary online registration services.] [4: the use of dna evidence is such an example. on the basis that the refugee cannot prove to the entry clearance officer’s satisfaction that they are the father of the applicant dna evidence is required. however, detailed instruction as to when, where, how, and who should pay are not provided to the refugee. without support from an experienced advisor it may be difficult for the refugee to know where to gather this evidence. see beswick supra note 1, and judith connell, gareth mulvey, joe brady, gary christie, one day we will be reunited: experiences of refugee family reunion in the uk, glasgow: scottish refugee council (2010) where the costs of acquiring dna evidence, along with the costs of submitting appeals hearings in court (not to mention the emotional cost to family) are considered. ] we begin by identifying, to place the discussion in context, a range of problems which may affect the refugee in their application for family reunion.[footnoteref:5] this process may involve hardship and, at first, recourse to non-legal but possibly legal action to secure this right. once the application is successful however, typically the law clinic has completed its task and moves to the next client (wishing prosperity and happiness to the now reunited family). [5: as such the students need awareness of the specific cultural and emotional needs of this category of client. see christine zuni cruz, [on the] road back in, community lawyering in indigenous communities, 5 clinical law review, 557 (1999).] our clinic has, adopting a therapeutic jurisprudence philosophy, recognised the need for additional care and support after the family has been reunited. this “post-arrival” support may even be seen as more significant to ensure the transition from disunited family to an effective, functioning and happy family unit. it is at present a severely under-researched area of practice in clinical legal education and our clinic has only made the first tentative steps to providing the holistic service needed. we present in this paper a series of case studies noting, not only the process of supporting the refugee client through their family reunion application, but also the problems they have encountered and our attempts to mitigate the worst of these. it has demonstrated the need for an effective system of post-arrival support and one which we aim to roll out from october 2018. a range of problems affecting refugees in the uk in 2012 the government enacted laspo. the result led to significant cuts in available legal aid. this had a direct effect on groups including the victims of trafficking and unaccompanied children pursuing immigration advice. refugees (in england and wales) seeking family reunion applications were also adversely affected by being denied access to legal aid. a concession was made available where the refusal of legal aid would lead to a breach of european convention or european union law rights. in such circumstances an application under a system known as exceptional case funding (ecf) may be made.[footnoteref:6] the system of ecf has been subject to criticism by organisations including amnesty international due to its inadequacy and complexity. it does, however, at least provide a mechanism for the most vulnerable to obtain legal advice and to assistance with associated costs. [6: see http://www.legislation.gov.uk/ukpga/2012/10/section/10/enacted.] individuals in the uk and with refugee or humanitarian protection status are legally entitled to apply to be joined by their immediate and pre-flight family members (spouse/civil partner/partner and children under the age of 18).[footnoteref:7] to do so they must complete an application form and submit evidence to the home office. submission of the application form is free, but problems arise where, for example, the person does not have experience of completing forms or where language barriers exist. they are reliant on their own abilities to complete what is often complicated paperwork and application forms, and/or to represent themselves in tribunals to secure their rights provided under international law. [7: the right to family reunion arises from the 1951 refugee convention and is only a right given to recognised refugees who have been granted refugee status or, since october 2006, five-years limited leave to remain under the humanitarian protection mechanism. the right to family reunion is written into part 8 and the relatively new fm section (family dependants) of the immigration rules (not under the part 11 asylum section).] the recent syrian resettlement programme[footnoteref:8] has impacted the advice sector because dispersal of individuals will by necessity be wide and will likely include areas that are not well supplied with immigration lawyers. assumptions may be held that refugees do not need legal assistance because they are resettled and protected persons. of course, they will need post-integration services such as family reunion, travel documentation and so on. they may only trace missing family member’s months after arrival in the uk and need support in this task. political and media hostility towards the refugee crisis has been exacerbated during and post the referendum on the uk’s continued membership of the eu. safe and supported refugee advisory services and clinics is paramount. [8: see https://www.gov.uk/government/publications/syrian-vulnerable-person-resettlement-programme-fact-sheet.] british nationality and travel documentation applications are pivotal to refugees’ integration, but, again, neither attract legal aid. not having a travel document can lead to a child not being able to take part in a school trip and families being ostensibly trapped in the uk. refugees without access to free advice can easily fall prey to unscrupulous advisors when seeking assistance with these claims. they and their families can lose substantial sums of money and time if they make mistakes on the forms. there are many examples of refugees using out of date application forms that are still circulating when seeking refugee family reunion. the language barrier further may lead them misunderstanding a question on the application form or to omit evidence. prior to laspo claims could be made from the legal aid fund for a lawyer to help the individual prepare and submit the application. now the individual must pay a lawyer to provide this service. these are significant practical problems yet, despite calls for reform from organisations including the british red cross, legal aid is still denied. at the time of writing, the refugees (family reunion) bill, a private members’ bill, is progressing through parliament and with cross-party support. it seeks to address two of the most significant limitations in the current system – the reintroduction of legal aid for refugee family reunion cases (to mirror the access that continues to be available in scotland) and to allow children to sponsor their family members to join them in the uk. in response to the lack of legal aid, regional and national not-for-profit organisations, charities and (some) lawyers have been offering their services for free. more recently universities have been assisting on refugee-related issues. the universities of plymouth and of bedfordshire offer advice on refugee family reunion. the university of liverpool provides an advice service on statelessness (persons who are not considered as a national by any state). the university of kent offers representation in tribunal and high court proceedings and in complex failed-asylum cases. the university of strathclyde assists destitute asylum seekers who have exhausted all rights of appeal but who may have grounds for a fresh application for asylum in the uk. more recently, sheffield hallam university opened its law clinic in refugee family reunion. it provides guidance on refugee family reunion, has successfully completed two ecf applications and is adding post-arrival support mechanisms to its service provision. that six universities have undertaken to provide specific advice and guidance in immigration and asylum for refugees is encouraging. collectively they provide a mechanism for helping refugees and in producing the next generation of lawyers who have firsthand experience of the problems faced by refugees. without this service, many refugees would continue to be displaced and separated from their families, be unable to complete applications for citizenship and the myriad other negative effects that status of a refugee can impose. a therapeutic jurisprudence approach to clinical legal education when offering legal and non-legal forms of advice or guidance to a group such as refugees, with unique problems and backgrounds dissimilar to many of the clients ‘typical’ law clinics may face, the adoption of a specific philosophy is required. for our purposes this was therapeutic jurisprudence (tj). tj is a legal philosophy that focuses on aspects of the law or the legal process from an emotional and psychological side.[footnoteref:9] it recognises the human component of those involved in the law, with its rules and in their application. whether the person involved in this process is aware or not, whether they are detached from the individual subject to the process or maintain a professional distance and apply the law without prejudice, the entire system may have adverse therapeutic and anti-therapeutic effects.[footnoteref:10] tj develops approaches to help maximise positive (psychological/emotional) effects and has a history of bringing the behavioural sciences into its scholarship to help inform its development and to tease out therapeutic outcomes. it covers all legal domains, it is certainly not restricted to clinical legal education, and it applies to a range of stakeholders involved in the legal process.[footnoteref:11] [9: bruce j. winick and david b. wexler: judging in a therapeutic key, therapeutic jurisprudence and the courts carolina academic press durham, north carolina, introduction, xvii, (2003); and david b. wexler, from theory to practice and back again in therapeutic jurisprudence: now comes the hard part (december 16, 2011). 37 monash university law review, 33, 34 (2011).] [10: david b. wexler therapeutic jurisprudence: an overview public lecture given at the thomas cooley law review disabilities law symposium, para 41 (1999).] [11: tali gal and david b. wexler synergizing therapeutic jurisprudence and positive criminology cited in positive criminology (routledge frontiers of criminal justice) edited by natti ronel and dana segev, chapter 6, (2015); and david b. wexler, getting and giving: what therapeutic jurisprudence can get from and give to positive criminology 6 phoenix law review 907 arizona legal studies discussion paper no. 13-13 (2013).] the law relating to refugee family reunion is particularly in need of a tj focus and many law clinics will, generally, be acting in a tj key (whether they have defined it as such or not). the wellbeing of the individual client (and in the case of family reunion also the members of the family the sponsor wishes to have join them in the uk) is at the centre of their activities. information is provided to the student members of the clinic in their training about the nature of the conflicts around the world, information on geography and politics, it will seek to instil awareness of the plight of refugees and how they arrive in the uk. much of this training seeks to dispel myths about refugees and their reasons for travelling to the uk (as negatively and erroneously propagated in the uk-centric media) and considers the treatment of the refugee from initial interview, to gaining status, and finally being granted leave to remain. the effects of the process as a whole on the individual, and the mechanisms that can aid wellbeing or alleviate the more negative effects of this adversarial, complex, and at times byzantine system of justice can be addressed through applying a tj philosophy. in our training, we focus on the behaviour, language and emotion components of tj (and their effects on the recovery of refugee clients). this uses perspectives gained primarily from the behavioural science literature where a more emotionally sensitive,[footnoteref:12] or psychologically aware and holistic legal system is envisioned. further, both tj and behavioural science facilitate the development of a creative[footnoteref:13] approach to problem solving. tj is complex in the sense that it holds both a law reform agenda with the aim of assigning therapeutic goals to current legal systems within the practical limits of due process and justice.[footnoteref:14] underlying the philosophy is a belief in a system which, as holistically as possible, ensures the most positive and therapeutic interaction with the law and legal process for all involved. [12: also referred to as “emotional lawyering.” here there is a moving away from the traditional lawyerly “rational-analytical problem solving and an adversarial approach to conflict.” susan douglas, incorporating emotional intelligence in legal education: a theoretical perspective, 9 e-journal of business education & scholarship of teaching, 56, 56 (2015). also, on the topic of emotional intelligence see marjorie a. silver, emotional intelligence and legal education, 5 psychology, public policy, and law, 1173 (1999).] [13: david b. wexler therapeutic jurisprudence: an overview public lecture given at the thomas cooley law review disabilities law symposium, para 41, (1999).] [14: mark w. patry, better legal counseling through empirical research: identifying psycholegal soft spots and strategies, 34 california western law review, 439 (1998); david b. wexler and bruce j. winick, law in a therapeutic key: developments in therapeutic jurisprudence carolina academic press, durham, north carolina, (1996); and david b. wexler therapeutic jurisprudence: an overview public lecture given at the thomas cooley law review disabilities law symposium, para 41, (1999).] typical cases in a refugee family reunion clinic and their post-arrival implications every case handled by the hkc law clinic is unique, compelling and requires a personalised approach to ensuring the strongest case is presented in the application. some cases have proven successful, others have been rejected or they continue, pending a formal decision. each, however, has the common thread of involving an individual wanting to be joined in the uk by their families and facing significant problems, which would potentially be insurmountable, save for the assistance available from university law clinics. the refugees (family reunion) bill, if passed, would offer considerable help to refugees in the uk and specifically england and wales, but whilst it is presently at its report stage in the lords and has cross-party support, there is also the issue of brexit and how this will dominate parliamentary time for the foreseeable future. consequently, university law clinics with a specialist refugee focus are likely to remain relevant. the helena kennedy centre for international justice hosts a number of work-based learning clinics, providing students with experience of advising clients on civil and criminal issues, on national and international bases, each with human rights components. given the long history of sheffield hallam university in clinical legal education, the centre was deemed to be an effective resource for providing a basis of assistance in response to the consequences of the developing refugee crisis. the clients who use the hkc law clinic are typically vulnerable and have experienced significant disruption to their lives. they are separated from their families and frequently display signs of distress and mistrust of organisations in authoritative positions. they may also fall victim to the requirements of the refugee family reunion system. this may include limited it skills to complete the on-line application form, and frequently they have a different perspective to western constructs regarding the celebrating and registering births. further the collection, collation and maintenance of supporting documents necessary to substantiate their application may have been lost or be non-existent. these, along with the language and cultural barriers present, create an environment where emotional care for the clients is paramount. thus, the perspective advanced by wexler and winick[footnoteref:15] and gould and perlin[footnoteref:16] acts as an antidote to the negative effects affecting refugees within its legal and administrative system. [15: david b. wexler and bruce j. winick, law in a therapeutic key: developments in therapeutic jurisprudence carolina academic press, durham, north carolina, (1996); david b. wexler and bruce j. winick, essays in therapeutic jurisprudence. carolina academic press, durham, north carolina, (1991); and david b. wexler and bruce j. winick, the use of therapeutic jurisprudence in law school clinical education: transforming the criminal law 13 clinical law review, 605 (2006).] [16: keri k. gould and michael l. perlin, “johnny's in the basement/mixing up his medicine”: therapeutic jurisprudence and clinical teaching 24 seattle university law review, 339 (2000).] we could present a number of examples of cases our clinic has dealt with since its inception. over one hundred applications have been submitted and many successes, along with some rejected applications have resulted. in this section of the paper we are attempting to demonstrate what happens in and following our students’ interactions with clients and the operation of a tj approach. the narrative provided by the client and contextualising this is essential to facilitate the client’s healing and to provide a meaning to the traumatic experience on their journey to the uk. further, this narrative finds its way into the statement presented by the client to explain and make intelligible to the entry clearance officer (eco)[footnoteref:17] the circumstances around the client fleeing their country of origin and their contact (and sometimes lack of contact) with their family.[footnoteref:18] [17: an entry clearance officer assesses and determines whether the application for refugee family reunion should be approved or refused.] [18: “… storying one’s experience also entails (1) learning to attribute meaning in terms intelligible to one’s community, and (2) positioning oneself (or, sometimes, being positioned) in the context of such accounts.” robert a. neimeyer et al., the meaning of your absense: traumatic loss and narrative reconstruction, in loss of the assumptive world, a theory of traumatic loss, 13-30 (jeffrey kaufman ed. 2002). here, the lawyer / advisor helps to articulate the client’s story in a way that is understandable to the entry clearance officer in a way which has meaning to them, their culture and their laws. this ultimately facilitates their recovery.] throughout the exchanges between the client and the students, the students embody certain fundamental principles. they must demonstrate respect for the client and ensure the client’s voice is heard and meaning is applied through their accompanying statement to the application. they explain to the client the procedures and requirements involved in a family reunion application, gain the trust of the client, support their legal, non-legal and emotional needs, and understand the clients’ ultimate goals when seeking assistance. to encourage the clients in seeking help, to reassure them and to facilitate cross-cultural communication,[footnoteref:19] many of our interpreters are former refugees who can ensure the client’s narratives are presented as authentically as possible. these interpreters assist the students in the questioning process and have regular discussions with the students to debrief and allow them to reflect on the interactions with clients. these interpreters are part of the education and training element of the clinic and help “… raise provocative questions about roles, perceptions, and ethics, while promoting proactive lawyering.”[footnoteref:20] the interpreters have also been helped either through our clinic or one of our referral partners. this aids with the legitimacy of the work of the clinic, its underlying holistic[footnoteref:21] approach and in enabling refugees to give something back to the communities who are in most need of help. a virtuous circle is thereby created. [19: here the student does not allow their own views to cloud the issue of the client’s goals and perceptions. see evelyn h. cruz, through the clinical lens: a pragmatic look at infusing therapeutic jurisprudence into clinical pedagogy 30 thomas jefferson law review, 463 (2009).] [20: keri k. gould and michael l. perlin, “johnny's in the basement/mixing up his medicine”: therapeutic jurisprudence and clinical teaching 24 seattle university law review, 339 (2000) at 365.] [21: in this regard see william van zyverden, holistic lawyering: a comprehensive approach to dispute resolution, 3 boston university public interest law journal, 5 (1993).] the rationale for selecting which case studies are included in the paper was based on an interpretivist model.[footnoteref:22] we wished to gain an understanding of the post-arrival problems affecting refugees who had been reunited with their families and therefore a “typical case study”[footnoteref:23] sampling strategy was adopted. this ensures the chosen case studies illustrate the typical / normal issues facing refugees following their successful family reunion (and thus is considered to be representative). here, a criteria-based sampling model was used. the first criterion involved maximising learning, and for stake (1995), the selection should include those cases which “… are likely to lead us to understandings, to assertions, perhaps even to modifying of generalizations.”[footnoteref:24] the other criteria are: a typical unique case; cases representative of others; accessibility and hospitality (a research environment conducive to the collection of data); the identification of informants; and an intrinsic interest in the case. therefore, we are confident that our case studies offer insights into the refugee experience which require attention and action. [22: see kristin braa and rickard vidgen, research: from observation to intervention in planet internet kristin braa, carsten sorensen, and bo dahlbom (eds) (studentlitteratur ab 2000).] [23: jason seawright and john gerring, case selection techniques in case study research: a menu of qualitative and quantitative options. 61 political research quarterly, 2, june, 294 (2008).] [24: robert stake, the art of doing case study research, 4 (sage publications 1995).] the following case studies identify facts of cases we have heard at our clinic. these have been modified to protect the identity of the clients (although the salient features of the case remain) and the names applied to the clients are fictitious. this, again, ensures the confidentiality of clients whilst allowing for important principles to be presented. case study one an ongoing case involved assisting a woman from the democratic republic of the congo (drc) to be reunited with her four adopted children[footnoteref:25] still residing in the country of origin. the client had been in contact with the children since she fled the country, she continued to send financial support to help with their maintenance and was making decisions about their lives including education and health, and, despite referring to the children in her screening interview when she first arrived in the uk, she was refused entry clearance for the children to join her. under refugee family reunion procedure, following her referral to our clinic, we advised the preparation of a new application containing a fully detailed personal statement, along with more substantial evidence of proof of contact and financial support (we discovered her first application, assisted through a lawyer, contained neither and relied on an irrelevant regurgitation of her asylum claim). the importance of the personal statement cannot be underestimated. whilst court cases can concentrate on legal facts, official reports on the application and written justifications for decision-making, the statement offers numerous therapeutic benefits for the client. first, it provides the client with a voice.[footnoteref:26] it helps them to explain and contextualise their situation, why they had to flee their country of origin, what had led them to ostensibly abandon their family (including their children), their fears, emotions, their previous and on-going relationship with their family, and it facilitates putting in place these issues in an emotional and humane context. the process of writing of highly negative experiences also promotes wellbeing and has a therapeutic effect.[footnoteref:27] the students who help the client prepare this narrative are also affected by it. they share in the life experience of an individual who needs help, who is vulnerable and has faced significant adversity in reaching the uk. they gain an appreciation of the experiences refugees can encounter due to troubling personal and world events, they establish that they are invested in the client’s case,[footnoteref:28] and it also demonstrates starkly that each client has their own story, and unique circumstances which have impacted on their lives. the client understands that the students appreciate their concerns and this validates their experience. deep learning and emotional development is evident. [25: whilst family reunion refers to the immediate family of the applicant (sponsor), provision is made for individuals (such as wider family members – nieces, nephews and grandchildren) to join them. paragraph 319x manifests this right where the child is under the age of 18 at the date of application; is able to demonstrate serious and compelling family or other considerations which make the child’s exclusion undesirable and alternative and appropriate arrangements have not been made for their care; the child is not leading an independent life; they are not married or in a civil partnership; they have not formed an independent family unit; they have been part of the family unit of the applicant at the time when they left the country of origin; and the child can and will be maintained and accommodated adequately in the uk without the need for recourse to public funds.] [26: anthony v. alfieri, reconstructive poverty law practice: learning lessons of client narrative, 100 yale law journal 2107 (1991); gerry lopez, rebellious lawyering: one chicano’s vision of progressive law practice (westview press 1982); binny miller, give them back their lives: recognizing client narrative in case theory, 93 michigan law review, 485 (1994); and jack susman, resolving hospital conflicts: a study on therapeutic jurisprudence, reprinted in law in a therapeutic key (david b. wexler and bruce j. winick eds., carolina acad. press 1996) (discussing the impact on patients and their sense of validation when nurses allowed them to “ramble”). ] [27: joshua m. smyth, written emotional expression: effect sizes, outcome types, and moderating variables, 66 journal of consulting & clinical psychology, 174 (1998).] [28: james w. pennebaker, opening up: the healing power of confiding in others (william morrow & co. 1990). ] the client, her husband and biological children had fled their home in the drc and were frequently moving between this country and rwanda to avoid government agencies who were persecuting the family. the client had given evidence to the international criminal court against the government for its involvement in war crimes committed in eastern drc. this is a very complex case for a number of reasons. first, the client’s health and medical conditions mean that prompt reunion is required or the client faces the possibility that the home office will reject her family’s application for reunion due to her becoming too ill to care for the children. secondly, applications for refugee family reunion refer to nuclear, pre-flight families. this is typically the spouse and biological children of the client, but does extend to adopted children. however, the drc is not a signatory to the hague adoption convention[footnoteref:29] and therefore the uk does not recognise adoptions nor does it, as such, include these adopted children as part of the refugee family reunion application process. to circumvent this impasse, the students preparing the client’s statement had to ensure they invoked european convention on human rights (echr) art. 8 to compel the eco to consider the case (which remains to be assessed on its merits) and this provides a route of appeal if the application is unsuccessful. [29: the democratic republic of the congo is not a party to the hague convention on protection of children and co-operation in respect of intercountry adoption.] this case has challenged the students to control their emotions and focus on issues such as ensuring the client’s narrative and reasoning is based within the parameters of the law and the application process. they needed to be mindful not to revert to sympathy or a patronising approach to the client’s distressing circumstances. they have had to prepare a detailed personal statement (of some nine pages) which uses the echr and external sources (for example books and reports) to verify the factual information presented in the client’s application. the students have also had to endure a protracted application process that has extended to the interviews of the client’s family. following the conclusion of interview arrangements, the authorities would not undertake the assessment due to the children not being in possession of passports. this is contrary to the guidance produced by the government and led to (respectful) arguments being presented to the agency to reconsider and to expedite the interviews due to the dangers faced by the children.[footnoteref:30] this case continues but has provided further experience for our students of the multitude of problems encountered in applications of refugee family reunion. [30: for further discussion of the role clinical legal education plays in the development of students as vigorous advocates see michael perlin, catherine barreda, katherine davies, mehgan gallagher, nicole c. israel, and stephanie k. mendelsohn, creating a building a disability rights information center for asia and the pacific clinic: of pedagogy and social justice, 17 marquette benefits & social welfare law review, 1 (2015).] post arrival problems  the applicant’s case is on-going and thus the client and family are not yet reunited. the case is included here because it shows the problems of an on-going application and the anti-therapeutic effects this has for everyone involved. the students have learned a valuable lesson in the continued struggle to satisfy the state’s requirements for refugee family reunion. they appreciate the illness facing the sponsor and that if the case is not remedied promptly the sponsor’s health may deteriorate to such an extent that reunion will be denied because she will be deemed too ill to care for the children applicants. the students have recognised the need for careful accompanying evidence to be presented to the state in supporting the client’s application, the toll this process takes on the wellbeing of the client and family members trapped abroad, and the sense of helplessness when applications are not progressed. case study two an iranian national applied to be reunited with his two children and wife. he had arrived in the uk in 2009 after suffering physical abuse by the military and then persecution by the iranian government for involvement in political protests. he was physically well (despite experiencing three months’ abuse by the iranian military) when he arrived in the uk but was suffering from the trauma associated with post-traumatic stress disorder (ptsd)[footnoteref:31] (although this was undiagnosed at the time). the condition had led to a lack of direct contact with his family for a two-year period. he had experienced significant problems first in his applications for asylum status[footnoteref:32] and then in his applications for family reunion. he had, with the assistance of solicitors in the first instance, made two previous applications for refugee family reunion, however, due to the poor drafting, bundling and interviewing,[footnoteref:33] these were rejected by the home office’s eco. interestingly, following the rejections the client’s lawyers failed to provide him with reasons. the client was left with failed applications and the distress of not fully understanding why[footnoteref:34] or what could be done to resolve the matter beyond submitting an appeal. failed applications such as these are not uncommon due to a range of factors which may include physical and emotional problems[footnoteref:35] affecting the client’s ability to articulate the factual elements of their application. further, the stress the client is experiencing and linguistic difficulties will each influence judgments of the client/applicant’s disposition, the consistency and veracity of testimonial evidence, and the details of accounts presented to ecos and/or the immigration judge. [31: which adversely affected his ability to convey his story to the satisfaction of the government (the eco). for broader discussion of this subject see stephen paskey, telling refugee stories: trauma, credibility and the adversarial adjudication of claims for asylum, 56 santa clara law review, 457 (2016).] [32: a not uncommon phenomenon in immigration / asylum claims with refugees. see kate aschenbrenner, ripples against the other shore: the impact of trauma exposure on the immigration process through adjudicators, 19 michigan journal of race & law, 53 (2013) and linda piwowarczyk, seeking asylum: a mental health perspective, 16 georgetown immigration law journal, 155 (2001).] [33: where, for instance, he was unable to articulate the consequences of the abuse he suffered whilst on military service – see maggie schauer, thomas elbert and frank neuner, narrative exposure therapy: a shortterm intervention for traumatic stress disorders after war, terror or torture 2 ed (hogrefe & huber 2005).] [34: michele cascardi, alicia hall and norman g. poythress, procedural justice in the context of civil commitment: an analogue study, 18 behavioral sciences and the law, 731 (2000).] [35: which may include symptoms including hypervigilance, emotional numbing, emotional detachment, nightmares and flashbacks or re-experiencing the trauma. in relation to its effects on adults see judith l. herman, trauma and recovery: the aftermath of violence—from domestic abuse to political terror, (basic books 1992). for research into its effects on adolescents see sabrina j. stotz, thomas elbert, veronika müller, and maggie schauer, the relationship between trauma, shame, and guilt: findings from a community-based study of refugee minors in germany, european journal of psychotraumatol, 6 (2015).] he came to the hkc law clinic following a referral from the british red cross and our team devised and rebuilt an application including a bundle of documentary evidence and a clear statement explaining the medical reasons for the lack of contact (which is usually devastating to the success of a claim of family reunion). supporting statements (which are akin to a covering letter to the application) are not a requirement for applications of refugee family reunion but we insist on our students taking the time to interview the client in sufficient depth to produce a statement which outlines the reasoning and background of the client’s circumstances. this is used to clearly articulate the pre-flight family members’ relationships, the reason why the client fled the country of origin, the danger facing the existing family and hence their need to join the client in the uk, and, where appropriate, a reference to the echr[footnoteref:36] which obliges the uk government to dutifully consider the client’s application for family reunion and enables an appeal should it become necessary. this method of interview, implementing “contextual interviewing” ensures the students, by adopting client-centred representation, do not simply receive advice on their legal position, but involves the students acknowledging the client as a person. it has also been recognized that narrative exposure therapy can be an effective method for treating people with ptsd with its focus on the power of speech in the healing process (and has been used by asylum lawyers, advisors and counsellors with their refugee clients in preparation of their claim and to manage trauma).[footnoteref:37] [36: a right to private and family life is provided under article 8 of the european convention on human rights, 1998.] [37: nicolas gwozdziewycz and lewis mehl-madrona, meta-analysis of the use of narrative exposure therapy for the effects of trauma among refugee populations, 17(1) permanente journal, 70 (2013).] the client lodged an application in april 2016 and he was informed in the following july that this was unsuccessful. the client was, naturally, distraught by the news but we had spent time with him, our students employed the skills we developed in them at the training stage. the client displayed obvious signs of emotion and distress. he was anxious, agitated and upset when he came to the clinic. the student volunteers explained the service we provide, how the process operated and what the likely success and failures were going to be. in so doing they helped to empathise with his situation, explained that the clinic would help him to prepare the best application possible, and that due to expected lack of success of this application to the eco, that an appeal would be made in the event of his application being rejected. we reiterated that we would help and support him to the exhaustion of any legal redress available. after the negative result in july 2016 we resourced a lawyer who submitted his appeal and who would represent him in the first-tier tribunal (immigration and asylum) chamber, and provided this service on a pro bono basis. the client’s appeal was heard in december 2016 and his claim was successful. the judge remarked favourably on the comprehensive bundle of evidence and its very good organisation. the home office subsequently informed the applicants’[footnoteref:38] client that it would not be appealing this decision and therefore the client was to be joined in the new year with his wife and two sons. this, on face value, appears to be a successful outcome. and it is, yet there are anti-therapeutic elements present. in the preparation of a client for their court hearing they are advised on the questioning likely to come from the home office and the judge, on which aspects of their case they should focus, they work with an interpreter to most effectively explain their situation and how to address the issues raised by the eco in refusing their application for family reunion. this adds to existing distress[footnoteref:39] of a prolonged and uncertain application process, the negative effects attending court can have on clients, and the possibility of another rejection of their application. having prepared for the case, when the judge makes a decision based on a seemingly (to the client at least) cursory examination of the bundle of evidence, and the representative of the home office appears disinterested in contesting the application in court or in appearing at all (and appealing the decision of the court), the client can feel emotionally drained, they can feel cheated, they can feel that having sought an opportunity to explain their circumstances to a person in authority, this has been denied to them and the initial positive reaction to the news of the judgment soon changes to one of negativity. again, the importance of the legal representative, of the support system offered through advisors in clinics, becomes evident. [38: significantly they do not inform the refugee (sponsor) about the decision therefore the refugee is unaware if the home office will counter appeal or not until either the applicants provide details of such a development or they have counted down the requisite number of days available for the appeal to be lodged.] [39: although at least through information and awareness of the process the client can feel control over the stressful situation. see susan t. fiske and shelley e. taylor, social cognition (new york random house 1984).] the client’s case has taken nearly eight years to be resolved.[footnoteref:40] having left his young sons to seek asylum in the uk, he is reunited with sons who are now young men. it is likely that the transition for all the family will be difficult, but the students involved in the case have had first-hand experience of how separation of families affects the individuals concerned, the problems involved in the application process for refugee family reunion, the implications of the cuts in legal aid and how this may impact on the role of legal advice for vulnerable individuals, and how they can positively impact on the lives of people in great need. for these students, this is an experience that will live with them for the rest of their lives. it has instilled in them a sense of pride and accomplishment, and a desire to fulfil the ethos of the legal profession’s pro bono initiative. it also demonstrates that whilst the client’s case may have come to an end, the story of the client’s life is simply turning to a new chapter. we are committed to educating our student advisors on the holistic nature of advice and support. this particular client needed assistance with the travel arrangements for his family to leave iran and reach the uk, and he requires help in obtaining accommodation to reflect his new needs. the children require educational placements and english language support and probably health checks and vaccinations. the family may require some form of counselling in order to bond and work towards a future together. to this end the clinic staff made several relevant “safe” referrals ensuring they had the mandate to do so from the client. texts between the client and staff members made him feel we still cared and were interested and would provide on-going specialist support as required.[footnoteref:41] we wanted to ensure that the students did not consider that they had dealt with the client, a successful outcome has been achieved and they should move on to the next person on the clinic’s waiting list. their caring, their support, their commitment to helping the client in the next non-legal aspects of his life are important aspects of their development.[footnoteref:42] the students see the impact of their work, but also how the legal system is merely a snapshot of the client’s world. refugee family reunion, even successful cases, does not necessarily lead to the parties walking happily together into the sunset. often, a family being reunited is merely where a new set of challenges begin. maintaining contact and thereby observing a justice system as just that – a system – are important lessons of which our students gain first-hand experience. [40: this period of isolation from his wife and sons and members of his local community appeared to exacerbate his declining mental health. similar findings were presented in c. gorst-unsworth and e. goldenberg, psychological sequelae of torture and organized violence suffered by refugees from iraq: trauma-related factors compared with social factors in exile, 172 british journal of psychiatry 90, 90 (1998).] [41: from the housing needs of a single man to a family residence for four individuals.] [42: beyond the work of the hkc law clinic, many of our students have previously volunteered at national and international agencies to assist in the refugee crisis, working in the uk and abroad to aid the plight of individuals suffering in, for example, syria.] post arrival problems  being one of our very first cases we were of course delighted with the result though recognised the exceptionally long wait and anticipated that the family would face challenges when reuniting. what we did not expect were housing problems. the clinic has been unable through capacity to offer formal post arrival support, however one of the clinic leads unexpectedly met the client whilst passing through the city centre and he told her of the problems the family faced immediately upon arrival. he had been told by the local council that he could not apply for larger accommodation until the family arrived in the city and when they did they were told they would have to go onto a waiting list or into homeless accommodation. the client had lived in the same single bed-sit style property for five years and had taken it on as a lease when he had finally been granted status. terrified of what he had heard about homeless accommodation and how the individual can be moved anywhere, he agreed to be placed on a waiting list. the newly arrived family were crammed into his single room property which had inevitably led to bewilderment, frustration and a high level of stress and tension.  a few weeks later, again crossing town the clinic lead again saw the client and was struck with his physical appearance. he looked noticeably stressed and anxious, even though he was surrounded by his family. having rung him a week later whilst at the clinic he told of how further problems had emerged in accessing education for his adolescent sons, though both had performed well academically in iran they were told they would only be allowed to undertake english classes for three hours a week for the first few months and given the housing situation, and the interest in assimilating into their new surroundings, they were very much wanting and needing more. furthermore, a misunderstanding with his wife's benefit claim, that he believed stemmed from poor interpretation and a member of staff from the department for work and pensions not understanding the immigration status his newly arrived wife and children had, led to the family being taken off the housing waiting list. he was unaware of this though and only found out after several months had elapsed, he had heard nothing and queried what was happening when he paid rent at a local office. the clinic lead was able only to advise him to attend a drop-in support session but it took several weeks to sort out the family's issues and they faced the risk of having to leave the city where he had social networks and established medical support and assistance. concerned, the clinic lead followed up on the client’s case and was informed that he was eventually advised to seek a private tenancy, which he did, with some difficulty because of having to find a deposit, references but also much more furniture than he had ever had before. case study three mr adonay, as a sportsman, was quite famous in his own country and lived an opulent lifestyle until he was targeted by the authorities and persecuted because of his religious beliefs. mr adonay was almost immediately granted refugee status having claimed asylum upon entering the uk. he has three biological daughters with two women and had assumed care of all three after the relationships broke down. fleeing his country of origin he had left the children under the care of his brother. having gained refugee status he could not find anyone who would conduct the family reunion case for less than a fee of £1,500. indeed, he actually struggled to find anyone in his home city to represent him through the application process. having contacted a local british red cross representative, he was referred to the hkc law clinic despite residing some 40 miles away.  although living outside the area from where we accept clients, we decided to take the case on given the circumstances. mr adonay’s first application was refused, and we helped him to appeal the decision and asked for a review. however, given the lack of birth certificates or other accepted proof of fatherhood we decided that the only way to have the case accepted was to order dna testing. we were interested in pursuing the dna matter on a policy level and wished to gather evidence around the issue. we successfully negotiated a discount with a major dna testing provider and all three children were sampled together with their uk based sponsor/father. having established the biological linkage we decided it would be prudent to submit a fresh application. there were further costs and complications with tb testing and increased fees from when the children were first tested (the first tests should have stood but the embassy refused to accept them) but eventually the children were accepted. a number of issues were raised in this case which are beyond the scope of this paper to fully explore. however, at its core, the refusal to accept evidence of mr adonay being the children’s father required him to provide dna evidence to effectively sponsor the children arriving in the uk. this involved a cost of several hundreds of pounds which the hkc law clinic funded through the generous support of an external funder. without this money, mr adonay would not have been reunited with his children. further, the costs of accepted dna evidence are proportionately high and the clinic staff are in discussions with the home office for this restriction on accepted service providers and the associated costs to be reconsidered. post arrival problems  anxious to find work, frustrated by the lack of opportunities in the north and lured by the offer of a job mr adonay moved to london. on hearing the children had been granted a visa he tried to source suitable accommodation with the help of the community, but to no avail. the children arrived quickly via the british red cross travel assistance and the family were forced to enter the homeless system. mr adonay phoned one of the clinic leads daily at one point and was reduced to tears on the phone stating ‘my children are in a terrible place, there are bad people in the hostel we are living in and they do bad things to children.’ the three little girls (the eldest being 11, the youngest only seven) were forced out of the hostel during the day as there was no play area and nowhere to cook. the newly reunited family are still sharing just one room and three single beds. mr adonay now wishes to return to the north and is having to remotely apply for housing. he does not wish to return to where he originally arrived as he feels there are no job opportunities and little by way of a community, advising he was the only person from his home country he knew of in the area. he wishes to re-locate to another northern city close by but is inevitably facing problems because of the ‘local connection’ test.[footnoteref:43] in the meantime, the children have not been placed in school due to lack of available places and presumably their precarious housing situation. they have also not been able to register at a local gp practice, having instead been forced to go through the homeless medical route. photos mr adonay shared of his family show a family pleased to be together but also display strain on the faces of the young children and their father. there is continued dialogue between clinic staff and mr adonay but all we are able to do because of capacity is to refer him to local agencies, some of whom have already turned the family away because of their own limited resources. mr adonay has not at any stage complained about his housing situation and facing homelessness, instead he has blamed himself for the reduced circumstances he and the girls are in. he has lost a lot of weight and says he is particularly worried about the oldest daughter who he informs us cries most nights and asks why she is here in the uk.  [43: this test enables a local authority to refer the applicant to another council for help to house them where they do not have a local connection to the area. local connection includes links based on living and working in the area; close family in the area and other special reasons.] it is hoped that the family will soon return to the north but are likely to have to enter the same homeless system they did in london. however, they believe they should eventually be able to secure larger and more suitable accommodation and more quickly find schools and health care.  implications there is a significant lack of post-arrival support for refugees having been reunited with their families, and its negative effects, in many regions of the uk. this is often due to a lack of resources and, we consider, a lack of policy and applied academic research to develop mechanisms which can be rolled out more broadly to effectively address the issue.[footnoteref:44] to give just a few examples of the specific experiences of clients to our clinic, it is clear to see the need for post-arrival support to prevent the housing crises, pressure on the family unit and homelessness affecting refugees. timely information and practical assistance in navigating the welfare benefits system, ensuring the correct housing is sourced, ensuring educational facilities (both academic institutions for children and language classes for all who may have deficiencies in english) are identified and arranged in good time are frequently missing. medical services for the physical and psychological issues arising from the separation and reunion, and numerous other aspects of legal and non-legal advice and guidance are required. in this last category, for instance, at sheffield hallam university a mentoring system operates where refugees to the local area are paired with a mentor who can assist them to integrate into the local community, give advice on how to gain the qualifications/experience/training necessary to continue their previous careers but in the uk (or indeed to start a new career) and so on. this is just one way in which non-legal advice and help is so important following the refugee and family’s arrival to allow them to focus on their lives and begin, positively, to build a future together. [44: policy guidance does exist – for example local government association, resettling refugees: support after the first year. a guide for local authorities (2017). from an academic perspective, research from western australia has been presented. see val colic peisker and farida tilbury, “active” and “passive” resettlement: the influence of support services and refugees' own resources on resettlement style, 41 international migration, 5, 61 (2003)] conclusions legal and non-legal assistance for refugees has been adversely affected by the austerity measures of successive governments since 2008 and by the enactment of laspo. this has affected not only the provision of legal practitioners working in areas typically used by refugees (including family reunion and nationality applications) but more broadly in the not-for-profit sector generally. universities have begun to offer dedicated clinical programmes to fill this gap and as a unique learning opportunity for their students, but the overall provision of these services is limited in geographic scope and availability.[footnoteref:45] [45: james marson, katy ferris and clare tudor, family reunion in a university law clinic: a model for law schools 23 european journal of current legal issues, 2 (2017).] whilst the services offered through these dedicated forms of clinical legal education are of a very high quality (in most cases subject to regulatory body review and audits), they often stop following the specific area of assistance provided. individual members of such clinics may offer some form of post-arrival support and/or signposting of relevant advisory agencies on a case by case basis. however, a more formal, holistic service which aids the refugee client in their assimilation to the community and transition to their new life with their family is necessary. key areas include clinics offering guidance on british nationality and travel documentation applications, welfare benefits, housing, fuel, employment, education, language development and training and emergency services to avoid homelessness affecting clients. it is perhaps implausible for a single law clinic at a university to offer all of these services in-house. however, if strategic alliances were developed in regions where clients could thereby be referred as a matter of course, resources could be maximised as could the therapeutic and positive effects for the refugee clients. innovative practices are being offered across the university sector. sheffield hallam university offers a mentoring system for refugees with professionals in the community. this helps to assist and inspire refugees to reassume roles and occupations held in their country of origin. at the university of plymouth, a law clinic has been established to help refugees to start new businesses and to encourage entrepreneurship and innovation. this is a further aspect of original post-arrival support which is advantageous to all members of the community. hence, we are very positive about the future of law clinics to continue to support and develop links with community groups. the more who provide these bespoke services, the greater the impact for the refugees, the local and wider communities, and all in the legal sector. 185 86 journal of clinical legal education june 2002 clinical legal education: bridging the gap between study and legal practice jessica kaczmarek and jacquie mangan1 for a law student, the academic study of the law and the actual practice of its principles seem worlds apart. with our desk piled high with books, case reports and legislation, the opportunity to experience and reflect upon the human interaction that underpins legal practice is notably lacking. while good lawyer client relationships are vital to successful legal practice, at present, a law student can obtain their law degree without ever interviewing a client or managing a case file. it was with this paradox in mind that during 2000 we embraced the opportunity to be a part of a clinical legal education program run by la trobe university’s school of law and legal studies. the program involved working voluntarily (but for academic credit) one day a week for ten weeks at victoria legal aid’s preston office. as the program was part of the legal practice and conduct course, the aim of the placement was to explore the legal practitioner’s duty to the client, the courts, and fellow practitioners. this was primarily achieved through reflection upon our observation of legal practitioners and from our own personal experience of practising as ‘student lawyers’.2 throughout the program we observed client interviews and court appearances conducted by experienced practitioners. this provided us with a firsthand perspective of the legal system and we were encouraged to study and critique each practitioner’s different style of interviewing, advocacy and case management. all students were then given the opportunity to develop their own skills through participation in a student clinic. we interviewed clients, researched matters, wrote letters of demand and advice and, if required, briefed counsel and prepared our clients for their court appearance. at the end of each day we wrote a journal entry about our experience. this encouraged us to reflect upon our own skills and ultimately assisted in our development both as individuals and aspiring lawyers. the legal aid setting provided an incredibly intense but rewarding learning environment. during the course of the placement we came into contact with people from diverse backgrounds. our clients included people who were homeless, people suffering from mental and physical disabilities, or drug addictions, and people who had been victims of sexual and physical assault. for the first time, we observed that legal problems were not just a collection of isolated facts, but 1 fourth year, law arts undergraduate students at la trobe university, melbourne, australia. 2 in recognition of the formal requirements for legal practice in the legal practice act (vic) 1996, all people we dealt with in our capacity as ‘student lawyers’ were informed that we were law students not qualified legal practitioners. our clients were assured that legal practitioners holding current practising certificates would approve all advice given and work undertaken on their behalf. clinical legal education: bridging the gap between study and legal practice 87 stemmed from a long and complex history of social problems. through experiencing the lawyer client relationship we became aware of the inherent contradictions which underpin our legal system. on many instances we had to explain to clients how the limited scope of legal aid meant that we could not help them. while, in other instances, we were obliged to help those whom we felt would not derive any benefit from our efforts or would quickly be returned to the court system. we often found ourselves in personally confronting situations. we witnessed first hand the inhuman conditions of some suburban police cells. we were reminded of how legal decisions impact on people’s lives through seeing a distraught child watch their mother being lead away following a failed bail application. this was a timely reminder of the consequences which stem from legal decisions and the responsibility upon practitioners to give their best efforts. for the first time, when engaging in research we knew that more than just law school marks were at stake. however, we found that our efforts were rewarded when our work helped to resolve a problem in our client’s life. our months at preston legal aid also showed us the more colorful aspects of practising law. one young student lawyer had to jump out of the way of flying chairs as a client attempted to escape from custody while at court. in our inexperience we found ourselves taking pleasure from the smallest of achievements, our first file, first interview, the first letter personally addressed to us, or our first phone message. our excitement at each of these ‘firsts’ was often looked upon with bemusement by our more experienced colleagues and was coupled with the warning that the joy of these things would quickly wear off! the structure of the program allowed us to experience the full spectrum of work done by a legal aid lawyer. we would spend one week assisting the duty solicitor at the local magistrates’ court and the next week we would interview clients. this was an ideal situation because it allowed us to observe the duty solicitor for one week and then attempt to put those lessons into practice with our own clients the next week. our student clinic was a very safe learning environment as we always had the support of our supervisor and other solicitors within the office. the clients were usually very patient with us and one client even remarked that the student lawyers often made more sense that the real lawyers. the amount we learnt in ten weeks was quite amazing. through dealing with clients and running client files we developed communication and organizational skills of universal application. we also developed an insight into the duties of the legal practitioner that can only be achieved through practical participation in the process of giving clients legal advice. our clinical legal education experience challenged us in ways that traditional learning methods do not. it required us to not only know the law, but to learn how to communicate it to others in a meaningful way. it pushed us to look outside of the legal problem and examine the more personal reasons behind the client’s troubles. in essence, an understanding of the law is worth very little unless that understanding can be used to respond to people’s needs. a common criticism directed towards the legal profession is that lawyers are good at dealing with other lawyers but not with the wider population. this is a systemic problem which can only be addressed from the ground up. equipping law students with interpersonal skills is as valuable to their education as learning contract law. clinical legal education programs do have financial and personal costs. they are more difficult for the law school to run and can place additional pressures upon the student. however, from our experience, participation in a wellstructured clinical legal education program is immensely rewarding as it encourages personal and legal development that simply cannot be achieved from lectures and books. 1 editorial “how do the students’ think?”: designing clinical legal education for student development professor elaine hall elaine.hall@northumbria.ac.uk in this issue authors have been using student perspectives to think critically about how best to design clinical legal education (cle) to shape students’ development and engagement with both the clinic and the legal world beyond. we have a collection of insights from australia, hong kong and the uk which pinpoint crucial areas for student development, from communication skills to self-reflection, that can be nurtured through experiential learning in clinic. firstly, alexandra grey presents student perspectives on cle in a non-university context. she addresses the lack of insider perspectives and investigation into nonwestern examples of cle in her case study of a novel english-mandarin bilingual clinical legal education program in china. using student voice data to conduct an “indigenous” study she disrupts the dominant model of clinic in the global north – as something conducted within the institution. the students’ perspectives shed light on new more flexible models of cle which bridge the gap between the institution and the community. mailto:elaine.hall@northumbria.ac.uk 2 rachel dunn, lyndsey bengtsson and siobhan mcconnell explore the ways that clinic can offer a way for students to engage with law policy and reform alongside of client work through creating a hybrid model of cle. their pilot policy clinic gave students the opportunity to conduct empirical legal research with the goal of influencing policy and law reform. working with external organisations and academic staff students were encouraged to cultivate a different kind of understanding of the law as well as pursuing their own research. recognising that not all law students will proceed to practice informs an innovative way to present other career opportunities and paths within research whilst developing students’ insight and skills. furthermore, lyndsey bengtsson’s analysis of client newsletter writing modules integrated into cle indicates the benefit of students expanding their perspectives of the law beyond the walls of the clinic. using data gathered through focus groups with students she demonstrates the way that letter writing develops students’ understanding of how law firms maintain relationships with clients as well as fostering responsibility and teamwork between participating students. on the other hand, lucy blackburn’s calls for us to look to the benefits of ephebagogy focusses on the law student’s learning experience. she argues that adopting ephebagogy, instead of pedagogy or andragogy, presents a way to tailor cle to the needs of undergraduate students as learners. she illustrates how the facets of cle lend themselves well to teaching undergraduate students in a way which compliments their stage in life. as part of developing a creative curriculum, legal educational 3 practitioners can look to ephebagogy, as a philosophy of learning, and design their courses in ways which nurture students and effectively respond to their position as neither child nor adult learners. the importance of student reflection for effective learning and development as practitioners within the clinic is explored by matthew atkinson and margaret castle. their study gathers and analyses their students’ perspectives on the reflective assignments and practices as part of cle at the university of south australia and the university of adelaide. acknowledging that their students have diverse learning styles and their lived experiences as younger people atkinson and castle use the student responses to compare journaling and blogging as reflective activities. the results illuminate the force of online community spaces for the students as they develop through clinic. finally doris bozin db, allison ballard, vicki de prazer guide us through the benefits of developing psychological resilience in clinic students to combat the high levels of mental distress amongst law students and legal professionals in the field. their pilot programme integrating psychological support and awareness into the health law clinic at the university of canberra had extremely promising results with students feeling more supported and confident working with psychological issues within the law and in their personal lives. 4 i would like to acknowledge that this is a scary and uncertain time for many of us. i hope that everyone is keeping well, and i am looking forward to future times where we may all come together again. foreword this is the third edition of the international journal of clinical legal education and once again the journal has contributions from a wide geographic area. it is interesting and inspiring to hear of recent developments but i am always intrigued by the different historical bases for the development of clinical legal education across the world. in croatia, steven austermiller’s clinical work has emerged against a background of a struggling legal system with inexperienced personnel, whilst in australia jeff giddings’ article describes the development of clinical work as a provider of legal services to the poor. here in the uk the emphasis has been on the educational benefits the clinical approach brings to legal education. despite these differences the problems, conflicts and questions arising from the day to day maintenance of such programmes are surprisingly similar. philip iya’s article considers the seemingly universal conflict between the profession and the academy and the restrictions it places on legal education, whilst susan campbell, alan ray and jeff giddings touch on the problems of staffing, funding and developing new programmes all of which sound very familiar to me. this third edition is published shortly before our first international conference on clinical legal education to be held in london. i look forward to meeting some of our contributors and others interested in the field and hope that the conference can be established on a regular basis. some of the papers from the conference will be published in future editions of the journal. it seems to me that ongoing international debate on clinical legal education has a lot to sustain it. it is precisely the mixture of common ground and differences that make it so interesting and diverse. cath sylvester editor foreword 5 6 journal of clinical legal education june 2003 reviewed articles – clinic, the university and society clinical legal education: vision and strategy for start-up clinics in nigeria augustine edobor arimoro*, university of cape town, south africa abstract: clinical legal education provides an opportunity for law students to, while learning, offer free legal services to the indigent community around where a law faculty is located. it is not enough to set up a law clinic without determining first of all, what role the clinic is to perform and secondly, how the clinic will aid students’ learning. to have a successful clinic, it is imperative that it is well-planned with a structure to allow for funding, effective running and one that arouses student enthusiasm. the faculties of law in nigeria have recognised that establishing law clinics will aid to achieve the vision of producing efficient lawyers who will be ready for practice soon after graduating from school. this article identifies the need to imbibe the right skills to aid student participation in law clinic activities and provides a guide to aid law faculties who wish to set up clinics or assist those already operating to realise their full potential. the article recommends the inclusion of law clinic module as one that all students must pass before graduating even though grades should not count to determine the overall culminative grade point average (cgpa) of a student. key words: law clinic, skills, pro bono, law faculty, practice, legal education, nigeria i. introduction the origins of clinical legal education (cle) can be traced to the advent of that mode of instruction in the twentieth century in the united states where some law schools offered community law clinics.[footnoteref:1] in england and wales, law clinics began to develop in the early 1970s. clinics were set up in the universities of kent, warwick and in some polytechnics that started by offering advice to students. the kent clinic, however, was designed to operate as a full-fledged legal practice.[footnoteref:2] in africa, the evolution of cle can be traced to the emergence of law clinics in the 1970s with the first of such clinics established at the university of cape town in 1972.[footnoteref:3] [1: *augustine arimoro holds the llb (hons), bl and llm degrees from the university of maiduguri, the nigerian law school and the university of derby. he recently completed his ph.d. in law. kevin kerrigan and victoria murray, (eds), a student guide to clinical legal education and pro bono (palgrave macmillan 2011) at 7.] [2: ibid at 9.] [3: olugbenga oke-samuel, ‘clinical legal education in nigeria: developments and challenges’ (2008) griffith law review 17 (1) at 143.] the introduction of cle in nigeria is due largely to the efforts of the network of university legal aid institutions (nulai).[footnoteref:4] the first nigerian law clinic was set up at the adekunle ajasin university in 2004. the university of maiduguri and the university of uyo followed suit in 2005.[footnoteref:5] other universities in the country have since gone ahead to establish law clinics in their law faculties. [4: ibid. ] [5: ibid.] given that this article is concerned about clinical legal education (cle) and the modus operandi for setting up pro bono law clinics in nigerian law faculties, the need to begin with a definition for cle is germane. unfortunately, like other terms in the field of law, no one has offered and it will amount to an exercise in futility to attempt to offer a universal definition for the term. the definitions offered so far are largely dependent on a writer’s perspective. this is similar to an african folklore about seven blind men who were asked to describe an elephant. each one of them, described the elephant by the part that was touched depending on whether it was the trunk, tail or the foot of the animal. grimes describes cle in the following words: [clinical legal education is] a learning environment where students identify, research and apply knowledge in a setting which replicates, at least in part, the world where it is practiced…. it is almost inevitably means that the student takes on some aspect of a case and conducts this as it would be conducted in the real world.[footnoteref:6] [6: richard grimes, ‘the theory and practice of clinical legal education’ in j webb and c maugham (eds), teaching lawyers’ skills (butterworths law1996) 5.] the problem with grimes’ definition is that it does not include the importance of legal aid and social responsibility that should characterise a legal clinic. it is imperative to note that a law clinic should combine practical legal education and legal aid. it should be more of a teaching experience with real clients.[footnoteref:7] to the network of university legal aid institutions (nulai), cle is a ‘multidisciplinary and multipurpose type of education which seeks to develop the skills and competences needed to strengthen the legal system, providing opportunities for learning and social justice concepts.’[footnoteref:8] this definition too does not touch on the importance of providing free services as an important aspect of cle. in the context of the discussion running through this article, cle is a phrase used to describe the several practical learning activities for law students. cle maybe defined as the involvement of law students in activities geared towards the teaching of the law with opportunity to learn from real practice while at the same time providing pro bono services. this article aims to provide a guide for providing strategy for nigerian law faculties seeking to establish a law clinic and for those with law clinics that are not currently being run to full potential. cle serves two-fold purpose i.e. practical legal training of students and providing legal services to indigent members of the community.[footnoteref:9] it is key in developing a strategy, that the law clinic is set up to ensure that students learn from practice. this is discussed in the next section. [7: mohammed m meghdadi and ahmed e nasab, ‘the role of legal clinics in human tights education: mofid university legal clinic experience’ (2011) procedia social and behavioural sceince 3014-2015.] [8: network of university legal aid institutions, ‘the development of clinical legal education’ (2015) available at < http://www.nulai.org/index.php/blog/83-cle> accessed 21 july 2018.] [9: ma du plessis, ‘clinical legal education: determining the mission and focus of a university law clinic and required outcomes, skills and values’ (2015) de jure 313.] ii. learning from practice participating in a law clinic is akin to medical students learning from experience during rounds at a ward while undertaking their clinicals at a teaching hospital. law clinics are described as a teaching law office within a law school where students participate in a supervised law practise to reflect law taught in the classroom.[footnoteref:10] the law clinic should be conceived as a learning environment for applying the law in practice. this should go beyond mere simulations to students being presented with real cases under supervision just like medical students are presented with real patients at the teaching hospital. [10: stephen wizner, ‘the law school clinic: legal education in the interest of justice’ (2002) fordham law review 70 at 1929.] it is important that students appreciate what they have been taught in theory early enough in their career to prepare them for the future. even though, the provision of legal aid in nigeria is primarily that of the government that set up the legal aid council,[footnoteref:11] other players such as law firms, and non-governmental organisations (ngos) may complement the government via providing pro bono legal services. the law clinic can serve as a way of contributing to the society and be included in the corporate social responsibility (csr) of the law faculty/university to its immediate community while at the same time providing students with the opportunity to learn from experience under supervision. giving the high number of inmates awaiting trial due to incapacity to afford legal services, law faculties in nigeria can be of tremendous assistance in helping to decongest the prisons. for example, according to the national human rights commission (nhrc), while the owerri prisons has a capacity for 584 inmates, as at 14 june 2016, there were 2,228 inmates in the prison with those awaiting-trial far out-numbering the inmates serving their prison terms.[footnoteref:12] there is, therefore, the need to tap into the opportunity of law students and their supervisors contributing to provide a solution to this societal challenge.[footnoteref:13] it must be mentioned here that while students cannot practice in real courts, qualified lawyers who are attached to the clinics can do so while the students learn in the same way that medical students are taught in the various teaching hospitals in nigeria. [11: see the legal aid act 2011.] [12: national human rights commission, annual report 2016 at 96 available at <https://www.nigeriarights.gov.ng/downloads/nhrc%202016%20annual%20report.pdf> accessed 18 july 2018.] [13: olanike s adelakun-odewale, ‘role of legal education in social justice in nigeria’ (2017) asian journal of legal education 5(1) at 94.] a law student who participates in the faculty law clinic will benefit from interacting with professionals through the role of a lawyer serving a client. by the time that law student graduates, facing real clients in the future will not be much of a challenge as the experience gained at the law clinic will be handy. the argument here is that simulation can form part of what law students in the second year in the llb programme and the third year engage in through mooting but students from llb 4 to llb 5 and those at the nigerian law school should have the experience of solving real cases. it has been argued as well that students are capable of learning far more through clinical techniques than skills developed from contextual studies.[footnoteref:14] [14: kevin kerrigan and victoria murray, op cit (note 1) at 7.] the benefits of law students participating in cle are immense. the opportunity of having dealt with real cases and helping to provide solutions will prepare the student for the rigours of legal practice and make integration into the work in a law firm easier. for example, interviewing skills, drafting of documents and motions can be learnt before the student lawyer graduates from the law faculty. the argument in this article is that involvement in real cases will impact more on the students than mere simulation. live client clinic offers the best opportunity to learn from spontaneity, authentic emotion and personal obligation.[footnoteref:15] a law clinic that is merely framed to have just simulated cases may not fully realise the potential of cle. the aspect of providing pro bono services to the community as a way of social responsibility will also be lacking. it is therefore, of importance, that this is taken into consideration in the planning and setting up of law clinics in nigerian law faculties. a good example is the women’s law clinic of the university of ibadan. the clinic provides services to live clients principally on women-related issues such as counselling on women’s and girls’ rights.[footnoteref:16] cle should be more than just organising gatherings for public education on the rights of citizens as practised by some law clinics in nigeria. the approach of using guest lecturers to teach students in a law clinic setting appears to be more like the traditional method of the theoretical teaching of the law. a clinic ought to be a clinic. it should be the lawyer’s equivalent of a medical clinic and nothing less. having discussed the law clinic as an opportunity for the student to learn from the practice of law, the next section of this paper discusses the skills that a law student should possess or acquire to effectively participate in the law clinic while learning at the same time. [15: ibid at 9. ] [16: olanike s adelakun-odewale, op cit (note 12) at 91.] iii. skills for law clinics it is imperative that participating law students develop the skills required to be efficient working at the law clinic. first, for a student to be resourceful at the law clinic, the student needs to have a broad knowledge of the legal system including legal concepts, values, principles and rules. it is important that while introductory law courses are being taught at the early stages of the undergraduate career, the modules are prepared with this in mind. as such, it is recommended that the modules be revised to allow for simulation and the content be in touch with real application situations. based on the foregoing, cle is suitable for students in the fourth and fifth years of the llb honours programme in nigeria. secondly, students should be able to demonstrate the ability to apply knowledge and provide the required arguable conclusions for actual or hypothetical law problems. thirdly, students must be taught to imbibe research skills. this skill set is key to finding solutions for legal problems or issues. the students should demonstrate the skill to identify the problems in any given case, find out what area of law is in issue, research it and retrieve up-to-date information relevant to the case using a variety of primary and secondary sources of research. fourthly, students require good interviewing skill. it is important that the relevant information is sourced from the client. a good mastering of this skill is a vital ingredient for law practice. it is key that the students are trained on how to conduct client interviews. all interviews must be prepared for. there must be an interview plan and a method for sourcing information. it is imperative, that all participating students go through a training before being admitted to participate in the clinic. fifthly, participating students should demonstrate good oral and communications skills. working at a law clinic requires extensive communication. one way to develop this skill set is practice. sixthly, a law student should possess the ability to recognise and prioritise issues; bring together materials from diverse sources; make critical judgements; and present the appropriate choice from a selection of solutions. the clinic should be organised to emphasise this key area of training as it will be beneficial to the student in the future practice of law. other skills required include the ability to use, present and assess numerical data, create word-processed documents, use ict resources such as email and the ability to browse the internet. it is equally important that all participants must imbibe team work. working as a team at the law clinic will be useful to the law students preparing for a career in legal practice. this should be imbibed in the students through their engagement in group tasks. in this wise, it will be effective to organise the students into various groups of say, four students each. each group should be assigned its own case with the members of the group performing different tasks to achieve the group objective. for example, in a group of four handling a case, one person may conduct the interview with the client, a second person researches the law, a third person writes the brief and the fourth person is responsible for writing all communications with the clients. even though, each group member may be assigned a specific task, they are all to discuss and review the tasks performed by each member of the group. in australia, the queensland university of technology, following the path of australian law reform commission’s 2000 exhortation to re-orientate legal education around ‘what lawyers need to be able to do,’ have grouped the skill sets law students need into four different categories namely, attitudinal skills, cognitive skills, communication skills and relational skills.[footnoteref:17] see table below for the skill sets listed under each of the four categories mentioned above. [17: sally kift, ‘a tale of two sectors: dynamic curriculum change for a dynamically changing profession’ (2003) being a paper presented at the developing the law curriculum to meet the needs of the 21st century legal practitioner conference (melbourne, australia) 13-17 april 2003 available at < https://core.ac.uk/download/pdf/10877994.pdf> accessed 24 september 2018.] table 1: skills by category attitudinal skills cognitive skills communication skills rational skills ethical orientation problem solving oral communication work independently creative outlook legal analysis oral presentation teamwork reflective practice it literacy advocacy appreciate race, gender, culture and socio-economic differences and diversity generally inclusive perspective legal research legal interviewing time management social justice orientation document management mooting adaptive behaviour discipline and ethical knowledge negotiation pro-active behaviour written communication drafting other skills that will be useful for a law clinic include counselling, factual investigation, the development of personal strategies to enhance performance and ethics.[footnoteref:18] to get the best of the law clinic in terms of work quality and to enhance students’ learning, the law school needs to consider this skill set as a factor that should guide student recruitment and the foundation modules in the curriculum for law training. where this is done effectively, by the time the students graduate from the vocational law schools,[footnoteref:19] they would be ready to be integrated into law firms in the country with little orientation needed. [18: ma du plessis, op cit (note 9) 324-325.] [19: in nigeria, after a compulsory 5-year llb honours programme at the various law faculties, students who wish to be admitted as solicitors and advocates of the supreme court of nigeria must attend the nigerian law school for a one year or two year (for students who studied law abroad) programme.] having identified the skills that law students require to efficiently participate in the law clinic, it remains to be stated that there are values that the law faculty should promote alongside these skills. this is important in the quest to train efficient, passionate and dedicated lawyers for the future. for example, the goal of the law faculty of the university of maiduguri is stated as follows: vision to be a world-class law faculty which produces highly disciplined law graduates that will provide quality legal representation to the people as well as cater for the contemporary legal needs of the society.[footnoteref:20] [20: faculty of law university of maiduguri, ‘welcome to the faculty of law’ available at < http://www.unimaid.edu.ng/faculty/law.html> accessed 24 september 2018.] mission the mission of the faculty is: · to inculcate in our students the values of decency, hard work, loyalty and self-discipline · to produce high quality law graduates within a serene and peaceful academic environment who will complete favourably globally and · to provide transferrable skills through ict driven legal training and clinical legal education (cle) to students to enable them perform tasks and execute responsibilities with the highest degree of professionalism.[footnoteref:21] [21: ibid.] objectives main objective of the law programme is to train students who upon graduation will proceed to the nigerian law school where they will undergo the one-year compulsory training for the purpose of being called to the nigerian bar. specific objective of the law programme is to produce lawyers that will fit in well in all sectors of the society, be it in the judiciary, private legal practice, public sector, private sector or even the armed forces. this objective is of particular importance to the states that make up the university’s catchment areas that depend on the faculty to provide both high and low levels manpower to serve on both the bench and the bar.[footnoteref:22] [22: ibid.] in line with these values promoted by the faculty of law, university of maiduguri, it has been noted that every lawyer must embrace the following: ‘competent representation; striving to promote justice, fairness and morality; striving to improve the profession; professional and self-development; judgement; professionalism; civility and conservation of the resources of the justice system.’[footnoteref:23] the skills set for law students to perform effectively in a law clinic have been enumerated and discussed above. in the next section of this article, the setting up of a law clinic is the focus. [23: ma du plessis, op cit (note 9) 326-327.] case study of the university of maiduguri law clinic[footnoteref:24] [24: the information under this section is sourced from the network of university legal aid institutions compendium of campus based law clinics in nigeria 2014. additional information was supplied by dr abdul rasheed, one of the law clinic supervisors.] the maiduguri law clinic (mlc) was set up in february 2005 following the approval of the university senate for the commencement of clinical legal education in the university. consequently, the mlc was registered as a member of the network of universities legal aid institutions (nulai). the mlc started operations on 9th december 2005. the clinic also, under a memorandum of understanding (mou) with german agency for technical cooperation (gtz) serves as a model for the provision of mediation and legal services for women and children. cle is offered at the university as an elective course for students in llb iv (fourth year) as well as for those in llb v (fifth year) of the five year law degree programme. the mlc adopted the nulai model of the cle curriculum. the objectives of the mlc are first, the training of law students to become highly qualified public interest attorneys by serving the needs of the community and those of individual members of the community through legal representation, advice and education. secondly, the opportunity to provide opportunity to law students to have first-hand experience in the practical application of law and thirdly, to develop skills of client counselling, negotiation, advocacy ad litigation within a supportive learning environment. the recruitment process for the mlc is as follows: applicants must be in the fourth or fifth year of the five year law degree honour programme. to be eligible for selection, a candidate must meet a minimum cgpa grade point. the second stage consists of a written and oral interview. other criteria for eligibility include gender and the geopolitical state of origin of a candidate. at the university, cle is taught as a course for both the fourth and fifth years. in the first semester of the fourth year, students study clinical legal education (lw 414) which is a 3 unit course. they are taught interviewing and counselling skills, legal writing 1, legal research and they undertake field work exercises. in the second semester of the fourth year, students take the clinical legal education (lw 415). they are taught ethics, information and communication technology, legal writing 2 and they also undertake field work. in the fifth year, students enrolled for cle take practical lawyering skills (lw 512) where they learn alternative dispute resolution (adr), introduction to practice management and undertake clinic work. in the second semester of the fifth year, students learn practical lawyering skills (lw 513). the course outline includes public interest lawyering, access to justice and they undertake work in the clinic. students who take cle are evaluated based on 30 percent of continuous assessment and 70 percent for examinations for both year four and year five students. the mlc serves as an in-house clinic with a street law component and a prison service unit. the clinic is run by students in the fifth year of the five year course. the students are divided into four groups and allocated clinic days in accordance with a schedule for clinic management and client consultation. the clinic is open mondays through fridays from 09.00 to 16.00 hours. the main areas of focus for the clinic include human rights, adr, matrimonial/reproductive health and rights, labour related matters, child rights and prison and pre-trial detainees. the services provided include counselling/legal advice, mediation, child rights support, legal support services, citizenship/community sensitisation and case referrals. iv. setting up a law clinic in this section, the focus is on the strategy to be employed in setting up a clinic for a law faculty within the nigerian context. there are key issues that need to be addressed for the establishment of a successful law clinic or for the development of already existing clinics. the aim is to ensure that the full potential of cle is achieved and that the students get the real experience of working in a law firm even while they are still students. the guidance provided in this article is for clinics that are designed as pro bono live-clients law clinics. the steps required to establish a sustainable cle project in a nigerian law faculty are considered below. having decided that a clinic is to be established, the next call is to decide on where the clinic is to be positioned.[footnoteref:25] in the case of nigeria, the clinic is suitable for the llb programme and not for those pursuing post-graduate studies. the steps required in the setting up of the law clinic are discussed in sub-sections below. [25: ronan fahy and mirreille van eechoud, establishing a start-up law clinic in law school: a practical guide (ict law incubators network 2015) at 5.] 1. getting support since the law clinic is to be set up in the university, it is important that some factors are taken into consideration. the support of the university vice chancellor and/or governing council is required. this is because, the university may need to bear the start-up costs for the project. there will be the need for an office within the law faculty or the university premises accessible to client. approval for this can only come from the university authorities. it is noted that ‘wheels tend to turn slowly in academia,’[footnoteref:26] as such, there is a need for a great deal of patience and follow-up to ensure that approval is obtained. the law faculty may also approach alumni, ngos, philanthropists and funding bodies for support as there will be costs associated with setting up of the office. there will be need for office equipment including furniture, desktop computers/laptops, internet, telephone, stationery and for the services of a full-time clinic staff or clerk. [26: kevin kerrigan and victoria murray, op cit (note 1) at 22.] ordinarily the dean of law of the faculty should be in support of the establishment of a law clinic in the faculty. it is the responsibility of the dean to appoint a champion who would serve as the vision driver. it is better if a member of faculty is employed principally as the legal director of the clinic as you would have a medical director in a teaching hospital. it is also in order if a member of faculty combines the responsibility of managing the clinic with some teaching in the faculty as well. the important thing is to have a member of staff who will be in charge and be accountable for the successful running of the project. other staff members too may be delegated to the clinic to perform specific roles. 2. recruiting student counsel/advisors/ participants having decided on the need to establish a law clinic, it is vital to consider how participating student counsel are to be recruited. it is recommended that cle be made compulsory for all llb four students and be optional for llb five students. for students in the lower classes, moot court activities can be encouraged while they learn the theoretical aspects of the law in preparation for the cle programme in their fourth and final years in the llb programme. it should be optional for students in the final year, who at that level would have decided whether they wish to practice as lawyers in chambers in the future. in this case, all students in the fourth year are to be selected in groups to take turns at attending to clients at the clinic. to get the best out of the students, it is important that cle be graded for participating student counsel. from experience, where the clinic is merely structured as an extra-curricular activity, students are usually not committed. academic credits should therefore be given to participating students. it is recommended that a pass or fail grade model be used instead of specific grades and the result should not count towards the grade point average of a student, but a pass must be required to graduate from the llb programme. 3. identify the target audience for the clinic it is important to determine what audience the clinic is to serve. this will determine the design and structure of the clinic. while it is given that as a part of the university’s social responsibility project, the primary clients of the clinic would be the immediate community where the law faculty is located, the type of cases the clinic can handle must be determined from the start. furthermore, whereas it is important that the clinic aspire to reach as many potential clients as possible,[footnoteref:27] since the more the clientele, the better the learning opportunity. nevertheless, a student clinic cannot handle all types of cases. the clinic may only take on cases where there are sufficient resources to handle such cases. where a clinic does not have the capacity to handle a case, this should be made known to the client as quickly as possible in order not to raise false hopes. civil matters such as landlord and tenant cases, contractual matters, civil wrongs, employment disputes and criminal cases pertaining to those awaiting trial should form the core area of practice at the law clinic. specialist matters like matrimonial causes, intellectual property rights etc should not be entertained. [27: guy alvarez, ‘law firm target audience: reaching your ideal client’ (2018) available at < https://good2bsocial.com/law-firm-target-audience/> accessed 23 july 2018.] 4. identify and engage the key stakeholders there are various key stakeholders that determine how successful a project would become. in the business plan for the clinic, it is important that roles are specified to ensure that all stakeholders identify and play their part. clarity of roles will help drive the project on the path to success. the core clinic team must be identified from the start. these are: i. the legal director the legal director is to the law clinic what a medical director is to a teaching hospital. the person occupying this position, who ideally, should be a member of the faculty, must be the champion of the clinic and have the support of the dean and the university authorities. the legal director should oversee the budget for the clinic and provide policy directions as well as determine the areas of practice. ii. the supervising lawyer it is recommended that a legal practitioner with experience be employed and attached to the clinic. the lawyer may be assigned teaching responsibilities as well with a primary responsibility to appear in court where required. the supervising lawyer may also be the legal director if there are staffing issues. it is important to appoint someone with a wide experience of different areas of practice to this position especially in areas that the clinic will like to focus on.[footnoteref:28] [28: kevin kerrigan and victoria murray, op cit (note 1) 31.] iii. supervisors supervisors should be drawn from members of the faculty to oversee the different groups. their task should be to review the work done by the student counsel. they may or may not be practising lawyers. their job is to oversee work done and have the student counsel pass it on to the supervising lawyer who should review it and approve letters of advice to clients and where necessary represent such clients in court. iv. academic consultants some faculty members can be retained as consultants. those members of the faculty who teach modules such as torts, contract, property law, criminal law, civil and criminal procedure as well as the law of evidence, should help the students as the need arises. v. student advisors/counsel these are the students who participate in the clinic and relate with clients. they are expected to have the most contact with the clients and manage the cases under the supervision of the supervisors and/or the supervising lawyer. 5. the facility for the law clinic careful thought needs to be given to the facility to be used for the clinic. the office space for the clinic should be exclusive to the clinic and accessible to clients. if the law faculty is not accessible to members of the public, it may be wise to locate the law clinic in an area in the university that is more accessible. the working space should be big enough to accommodate key clinic staff and conducive enough to have visitors. there should be a reception area for clients and guests who are waiting to be seen. care must be taken to separate this from the work area to protect the confidentiality of clients and to ensure clients do not see or get access to confidential information. the interview room should be conducive for at least four persons, with two student interviewers, a supervisor and the client attending. there is the need for storage and filing cabinets. office equipment such as computers and internet should be provided. for research, students may use the university law library. the clinic should have a dedicated line with which clients can reach the office. the office will require a photocopier, a shredder, a document scanner, digital camera, audio playback equipment, stationery and all the essentials required for running a law office. the office will need furniture such as desks, chairs, filing cabinets and book shelves.[footnoteref:29] the following checklist of supplies should serve as a guide for supplies and equipment essential for a law clinic: [29: find law, ‘how to start a law firm: office furniture and supplies’ (2018) available at < https://practice.findlaw.com/how-to-start-a-law-firm/how-to-start-a-law-firm-office-furniture-and-supplies.html> accessed 24 july 2018.] table 2: office equipment for law clinic item check i. envelopes ii. stationery iii. paper (a 4-size) iv. supply of sticky notes v. pencils vi. pens vii. staplers viii. file folders ix. three ring binders x. staple removers xi. scissors the above list is certainly not all-inclusive but constitute the essential items that are required for the law clinic. v. practice strategy for the clinic in medical practice, bedside teaching affords clinical students the opportunity to learn while attending to patients in a teaching hospital.[footnoteref:30] the method adopted in teaching medical students is said to provide opportunity for role playing, teaching of transferable skills, increased learner motivation, increased professional thinking;, and integration of clinical skills, communication skills, problem-solving, decision making and ethical challenges.[footnoteref:31] it follows that medical clinical education is structured in such a manner to ensure that all the above skills in addition to study of medicine, are imbibed by the medical student. this should also be the strategy for cle in a law faculty in nigeria. [30: yousef marwan, muhammad al-saddique, adnan hassan, jumanah karim and mervat al-saleh, ‘are medical students accepted by patients in teaching hospitals?’ (2012) medical education 1.] [31: ibid. ] in the initial business plan for the clinic, office hours for the clinic should be determined. it will need to be decided whether the clinic should operate when school is not in session. if the clinic is offering pro bono services as well as representing real clients in court, it may be necessary to have the clinic operational during school breaks but with volunteer counsel. it may help to define a practice theme for the clinic as this would help for cohesion and serve as a driver for success. a theme such as access to justice or human rights could be a good starting point. the benefits of such strategy is that it will aid the building of internal expertise, add coherence to the programme and have a greater impact.[footnoteref:32] [32: the law society, ‘developing a pro bono programme’ (2015) available at < file:///users/admin/downloads/developing-pro-bono-guide-and-toolkit-october-2015.pdf> accessed 24 september 2018.] furthermore, in the plan for the clinic, the mode of attracting clients should be considered. it is also possible that since the services are free, the clinic may be over subscribed by clients. it follows that there should be a standard in place to serve as a guide for sourcing pro bono work and ways to reject those whose cases the clinic may unfortunately not handle due to capacity. some of the ways to source for clients include, working with community leaders and organisations to inform them about the clinic, creating partnerships with ngos, client self-referrals and encouraging students to identify a need personal to them.[footnoteref:33] [33: ibid. ] vi. engaging student advisers/participants students generally lose steam and focus in activities that are not directly graded to impact on their final results. as such, they may not continue to focus on their roles in the clinic with the same initial passion that they had when they were introduced to the clinic. this writer observed this trend while serving as a supervisor in a law clinic. students gave several reasons why they did not turn up when they should for clinic activities. these ranged from having other school assignments, lectures or tests scheduled for the same period as the clinic activity. for some, this writer observed that after a while the students lost interest because they were either afraid of making mistakes or they simply did not want to appear lazy before their colleagues in cases where they did not know how to approach their tasks. it is recommended that the law faculty makes a decision on what time they operate the clinic to ensure that this does not clash with other faculty activities. furthermore, a reward system should be encouraged to engage the students. the supervisors and other staff of the law faculty should provide support to students who may require additional time to catch up. a friendly atmosphere for learning should be encouraged to make the clinic conducive for all. in addition, values such as mutual respect by the students for one another must remain sacrosanct. vii. conclusion clinical legal education is now regarded as an important aspect of the law school curriculum in many countries of the world including nigeria. it is imperative that where law clinics are established, they should function as a means for the provision of free legal services and for learning. a law clinic is also an opportunity for the faculty and the university to give back to the immediate community. this article argues in support for the establishment of law clinics as a way of promoting clinical legal education in the law faculties in nigeria. the law clinic in the university of maiduguri was briefly examined. the model that university has adopted is for students in year four and five to take cle as an elective course in the first and second semesters in two academic sessions. while this is encouraging for a start, this writer is of the opinion that cle should be compulsory for all law students especially in the fifth year of the llb programme. a primary focus of the discussion is that law clinics in the law faculties across the country should not be set up merely for only providing opportunities for simulation and the creation of public awareness for example, organising public activities to discuss human rights with members of the community. rather, the article strongly recommends for law clinics to be set up in the same fashion as medical clinics at teaching hospitals are established. the goal is to provide students with real-live lawyer-client scenarios and opportunities. the advantage of using this model is that the student profits from the experience of providing solutions to problems of real clients and the fulfilment that can derive from it. to get the participation of students and to ensure commitment, the law clinic module should be introduced as a mandatory module to be studied before graduation even though it may not count towards final degree classification;, attendance and participation should determine if a student has passed the module. finally, it is recommended that students who desire to apply to a law school should consider the law clinic and the immense benefits that can be derived from that decision. references adelakun-odewale, o. s. (2017) ‘role of clinical legal education in social justice in nigeria’ asian journal of legal education, 5(1), 88-98. doi:10.1177/2322005817730148 alvarez, g. (2018) ‘law firm target audience: reaching your ideal client’ retrieved from https://good2bsocial.com/law-firm-target-audience/> du plessis, m. a. (2015) ‘clinical legal education: determining the mission and focus of a university law clinic and required outcomes, skills & values’ de jure, 48(2), 312-327. doi:10.17159/2225-7160/2015/v48n2a4 faculty of law, university of maiduguri (2018), ‘faculty of law’ retrieved from http://www.unimaid.edu.ng/faculty/law.html fahy, r., & eechoud, m. v. (2015). establishing a start-up law clinic in law school: a practical guide. ict incubators network. find law, (2018) ‘how to start a law firm: office furniture and supplies’ retrieved from https://practice.findlaw.com/how-to-start-a-law-firm/how-to-start-a-law-firm-office-furniture-and-supplies.html grimes, r. (1996) ‘the theory and practice of clinical legal education’ in j. webb & c. maughan (eds.), teaching lawyers’ skills. butterworths law. kerrigan, k., & murray, v. (2011) a student guide to clinical legal education and pro bono. houndmills, basingstoke: palgrave macmillan. kift, s. (2003) ‘a tale of two sectors: dynamic curriculum change for a dynamically changing profession’ paper presented at developing the law curriculum to meet the needs of the 21st century legal practitioner conference , melbourne, australia. retrieved from https://core.ac.uk/download/pdf/10877994.pdf the law society. (2015). ‘developing a pro bono programme’ retrieved from file:///users/admin/downloads/developing-pro-bono-guide-and-toolkit-october-2015.pdf marwan, y., al-saddique, m., hassan, a., karim, j., & al-saleh, m. (2012) are medical students accepted by patients in teaching hospitals? medical education online, 17(1), 17172. doi:10.3402/meo.v17i0.17172 meghdadi, m. m., & nasab, a. e. (2011) ‘the role of legal clinics of law schools in human rights education: mofid university legal clinic experience’ procedia social and behavioral sciences, 15, 3014-3017. doi:10.1016/j.sbspro.2011.04.234 national human rights commission (2017) annual report 2016 retrieved from https://www.nigeriarights.gov.ng/downloads/nhrc%202016%20annual%20report.pdf> network of university legal aid institutions (2018) ‘the development of clinical legal education’ retrieved from http://www.nulai.org/index.php/blog/83-cle oke-samuel, o. (2008) ‘clinical legal education in nigeria’ griffith law review, 17(1), 139-150. doi:10.1080/10383441.2008.10854605 wizner, s. (2002) ‘ the law school clinic: legal education in the interest of justice. fordham law review, 70, 1929. 155 practice report 179 clinics in time of crisis: responding to the covid-19 outbreak amanda thurston, diana kirsch1 background at the time of the covid-19 lockdown in march 2020, hertfordshire law clinic was still in its infancy. it had only opened its doors in october 2019 and was technically still in its ‘pilot scheme’ phase – with the official opening not due to take place until april 2020. the aim of the clinic was to help support its local community by offering free legal advice in areas of unmet need. at the time of opening this included family law, employment law, commercial and ip advice for smes, and preparing powers of attorney. at the same time, the clinic aimed to provide law students with real-life practical experience of dealing with clients and their cases. an important factor restricting the type and quantity of cases we can deal with is the level of professional supervision available. the university is lucky on this front as some of its law school staff are non-practising solicitors, and we had already built up good connections with local law firms who were generous with the pro bono work 1 amanda thurston is director of law clinic in the school of law at the university of hertfordshire and diana kirsch is associate dean enterprise of & director of pro bono in the school of law at the university of hertfordshire practice report 180 their lawyers could offer. we have therefore always had almost twice as many external lawyers (compared to law school staff) supervising the students; currently fifteen. practicalities the students work in pairs for all their clinic work. for some cases they shadow the lawyer supervisor giving one-off verbal advice to a client whilst keeping detailed notes. they then prepare an attendance note, which once approved by the supervisor is sent to the client as a record of the advice they have received. in other cases, the students interview the client alone, to gather more detailed instructions, and then carry out appropriate research to enable them to prepare a letter of advice. once the letter is approved by the supervisor it is sent to the client. the two options enable the students to gain the most from learning new skills and working with an experienced professional. before being allowed to partake in any of this clinic work, the students have to undergo a formal application process and compulsory training which includes watching recorded lectures; reading relevant material; and attending live sessions. satellite clinics we wanted to ensure the clinic reached the most vulnerable and needy parts of the local community. we therefore arranged to establish two satellite clinics. the first had students and their supervisor attending the premises of future living hertford practice report 181 (flh),2 a charity working to support victims of domestic abuse, to provide family law advice to their clients. this was only permitted after the students had undergone appropriate domestic abuse awareness training to ensure the charity’s vulnerable clients were treated appropriately. the second satellite clinic should have seen students visit hmp the mount and provide family law advice to prisoners. it had been recognised that access to this type of advice was widely needed for those in prison, but was extremely difficult for them to obtain. this was postponed due to the pandemic lockdown, explained further below. the feedback from students, supervisors and clients has been very positive on how the law clinic has worked for them. we were therefore keen to look into expanding the clinic; the areas of law we could advise on, the depth of work we dealt with and the number of students involved. however, the turn of events in march 2020 meant we had more pressing considerations to deal with. lockdown the university of hertfordshire decided to close down its campus and send all students and staff home shortly before the official government lockdown in march 2 www.futurelivinghertford.co.uk http://www.futurelivinghertford.co.uk/ practice report 182 2020, and with only 24 hours’ notice to us all. the clinic had some immediate challenges to face: challenge 1 – answering the telephone from home the client telephone line to the clinic was based on campus and manned by students on a rota. this was probably the easiest issue to resolve with the dedicated telephone line being forwarded to the full-time clinic administrator so she could control the incoming calls and messages, and share out the work on making initial contact with clients between the student clinic assistants, all working from their own telephones and own homes. challenge 2 – moving to video appointments client appointments, which were all taking place face-to-face on campus, were already booked in for the next 4 weeks. this was a little trickier as we had no wish to shut down the clinic or cancel appointments. we recognised that the best approach would be to move the clinic online. ideally, we would give you a helpful insight into the clear scientific approach we took in researching the various platforms on offer and showing how the statistical data highlighted which would be the best. however, time constraints meant it had to be far simpler than that. we had one afternoon to decide which platform would be free and easily accessible to clients, students and supervisors, including those students practice report 183 returning abroad. it also needed to keep the contact details of all those attending a video meeting confidential. we therefore chose zoom which seemed to conform to all our requirements and having purchased a zoom licence, we moved the clinic online in less than 24 hours. initially, when clients were advised their face-to-face meetings were suddenly going to be moved online over 50% opted to postpone their meeting in the hope the lockdown would end in a few weeks. as the lockdown continued, however, clients simply accepted the move to an online environment and readily agreed to book online appointments. challenge 3 – going paperless one problem the hertfordshire law clinic did not face was the physical movement of any confidential paper files. this is where we were probably assisted by being so new. we were already paperless, with all confidential client information and documentation being held in our case management system clio.3 challenge 4 – ensuring we maintain confidentiality there were still concerns about confidentiality and potential breaches of gdpr. we trusted the clinic students to ensure they behaved professionally even when online. their compulsory training before working in the clinic, included a two-hour session 3 www.clio.com http://www.clio.com/ practice report 184 on professionalism, and they all signed a student agreement setting out the high professional standards we expect of them. we felt that the level of trust which had been afforded to students before lockdown should be continued when we moved online. we provided them with an updated student handbook to highlight the practical changes of moving the clinic online and reminded them of specific issues with confidentiality. for example, a student needed to ensure they had client interviews and discussions about cases alone, without any third party listening in. as the majority utilised headphones and microphones for their online learning, this did not ever appear to be an issue. we took the decision not to record the online student/client meetings. we were not present in the room with them when the meetings were face-to-face, and we felt that the risks had not increased significantly with those meetings taking place online. there was a presumption that the clinic staff and supervisors would continue to comply with confidentiality once working for the clinic online – they were having to do all their other confidential day-to-day work in lockdown, so we again trusted them to follow the new guidance. when it came to document confidentiality clio assisted us with the additional advantage of offering clio launcher; an application within the case management system allowing students to access and amend confidential documentation without downloading it to their personal device. its use ensured compliance with data practice report 185 protection legislation and the duty of confidentiality whilst still allowing the student anywhere in the world to access, draft, or amend a client document. there seemed to be no issue with clients receiving their attendance notes or letters of advice by email with little or no access to post. most already made their first contact with the clinic using email and now we offer nothing else. challenge 5 – retaining and gaining volunteers we were initially concerned students would no longer wish to continue volunteering for the clinic – particularly if they had left student accommodation, or even the country, for lockdown. however, we appeared to have a captive audience. the students were no longer commuting to attend their seminars. most were unable to socialise or work, or even gain unpaid work experience. suddenly, the clinic was seen as the only form of practical work experience they were likely to get for months. further, anything that changed a somewhat monotonous day in lockdown could be seen as light relief. we actually managed to increase the number of students helping. likewise, whilst there were a few professional volunteers who were exceptionally busy during lockdown, family lawyers in particular, the majority of them were happy to continue assisting the clinic. a few, if furloughed, actually had more time to help, or even if still working, found it was far easier to give us an hour of their time to log into a video call, than have to book out a whole afternoon to travel to our campus. the move to an online clinic also meant the geographical area from where our external supervisors came from could expand. practice report 186 it was actually in the midst of lockdown that we first expanded the areas of law the clinic covered to include housing, due to the number of enquiries we were getting from tenants worried about rent arrears and eviction. this was only possible because of the move online one external lawyer was on furlough, and another could supervise one afternoon a week as part of their day job with a charity supporting young people. outcome for the clinic after our smooth transition into the virtual world, we became the university’s first virtual law clinic and during lockdown, up to the end of july 2020, we managed to engage with 75 clients online. we appreciate that we had the advantage of our clinic being part of the university and so never had the worry about resources, in terms of both money and paid staff. satellite clinics we were pleased to be able to continue the satellite clinic with flh without any disruption. their clients, although many were vulnerable, were learning that many things during lockdown had to be dealt with virtually so accepted that their clinic appointments would be too. if they wanted the extra reassurance of their support worker with them, they could just be invited to join the zoom video call. the same could not be said for the planned satellite clinic with hmp the mount. this project had its own, unique challenge. practice report 187 challenge 6 – internet connection whilst technology was an issue for the main clinic when it came to choosing which platform to use, after that it was rarely mentioned. of course, there was the odd occasion when someone couldn’t access the zoom link or forgot how to unmute themselves – but these minor teething problems were part of the new virtual life. the prison had much more basic it issues which were not so easily overcome. the prisoners do not have access to the internet in their cells, or any other confidential area. they cannot even receive telephone calls in their cells but have pre-set times each day when they can have privacy in their cell and telephone out on a pre-agreed telephone number. this was our first clear insight into how the wonders of modern technology do not help you in a secure prison, these findings resonate with a recent law society report: “during the lockdown period, meetings with legal representatives were predominantly by telephone or video conferencing and the majority continue to be so. for those who are living in institutionalised settings, such as prisons, immigration detention centres, mental health units or care settings, this is particularly important. people in these settings are reliant on those detaining or caring for them to facilitate access to legal representatives and during lockdown this depended on the supply of and access to technology.”4 4 law society (2020) law under lockdown: the impact of covid-19 measures on access to justice and vulnerable people, [online]. available at https://www.lawsociety.org.uk/topics/research/law-underpractice report 188 we are now hoping to find a way to overcome these restrictions with the use of a new, dedicated telephone line for the prisoners to contact the clinic on, and for student volunteers to be staffing this telephone line at set times each day, as we cannot simply return messages. it has taken some thought and ingenuity, but it is just another hurdle thrown-up by the pandemic. challenge 7 – communications – too much or too little communication seems to have been the hardest challenge during lockdown for all clinic activities. for the prisoners it was an issue of lack of communication – or at least access to it. however, for those of us lucky enough to have uninhibited access to the internet, the issue was often the opposite. without being able to see anyone face-toface there was suddenly a deluge of emails, messages, webinars and online announcements sent out – from the nhs, the government, employers, work contacts, colleagues, friends, family, and many more. we found many of our student volunteers were overwhelmed by the volume of virtual communications and they struggled to process and deal with them all in a time-sensitive manner. this deluge of electronic communications also left us at a disadvantage when trying to ask a favour for the clinic. no longer able to pop along to a colleague’s office with the offer of coffee and cake, or meet up in a café with a potential new external lockdown-the-impact-of-covid-19-measures-on-access-to-justice-and-vulnerable-people (accessed 19 november 2020) practice report 189 supervisor, we had to resort to the seemingly over-formal booking of a ms teams video chat. so, one clear challenge was to find the appropriate level and quantity of communication. we needed to stay in touch with everyone connected to the clinic, but not to such an extent as to feel like we were harassing them. clinical legal education module it had always been planned that once the clinic was up and running, we would introduce a cle module to be able to gain the best student experience in the clinic and utilise their clinic work as part of an assessed module. the timing meant this was due to start in the middle of the pandemic lockdown in may 2020, with a group of accelerated law degree students. this new module therefore had its own challenges. challenge 8 – blended learning by this time, we had all learnt how to teach, and be taught, online. however, we had never undertaken clinic training in this way, and these were practical skills we were teaching. interviewing needs to be tried and tested to fully understand it. how could we expect students to work well in pairs with real clients when they had never even met their clinic partner face-to-face? of course, the great advantage we had was the students themselves. they have grown-up in a generation used to handling electronic devices on a daily basis, and to practice report 190 adapt to continual changes and improvements to technology. they had already become accustomed to learning from their bedroom or kitchen table; and using a mobile telephone or tablet rather than a pc. they were well versed in reading training manuals on a screen, rather than printing them off, and were used to making friends and connecting with others remotely. so, we introduced our first attempt at creating an entirely online training programme. this included recorded lectures, documents, and videos to read and watch at their leisure; and live online group seminars to interact with. remembering to unmute ourselves; making use of the chat box and screensharing all became second nature. this was a steep learning curve for everyone, but that’s probably why it worked. we were all in the same position, and there wasn’t any alternative. if anyone suggested the students were not learning practical skills in a lifelike way, then they were wrong. the pandemic meant most clients were seeing their paid solicitors via a screen, and even court hearings were being conducted by telephone or video call. the student experience was entirely similar to what the legal world had become during lockdown. we never got to actually meet some of those accelerated students, and now never will, as they have finished their degree and gone on elsewhere to work or continue studies. that is a real shame, but does not appear to have affected their results, with a high proportion of the class attaining an upper second class or above. we believe that these results are a testament that online learning can work, and that student’s main practical experiences can still be completely natural and real even if they are virtual. practice report 191 streetlaw projects the cle module students also took part in another of our pro bono projects; streetlaw. this allows students to work in a small team to produce a presentation on a specific legal subject, relevant to the audience they will present it to – for example knife crime to school children, or cybercrime to the elderly. usually these would be live presentations with the students travelling to the chosen venue. the pandemic presented this project with its own challenge: challenge 9 – presenting virtually we wanted to avoid this project being frozen during lockdown and had to continue it for at least the cle module students as it was already part of their course and assessment. we therefore simply followed what all other training providers have done during the pandemic and moved the presentations online. the aim of producing relevant content for the audience was maintained, and for the students, they still had the experience of trialling newly learned skills. these included working as part of a team; researching a new area of law; creating a presentation on the subject matter, ensuring the content is appropriate for the audience and gaining confidence in their presenting. our students impressed us with their innovative ideas and we even ran a youtube live event with the help of a housing solicitor from shelter on housing rights for students living off campus. practice report 192 lessons learnt the hertfordshire university campus reopened in september 2020, but with heavy demands on limited teaching spaces, which had to be covid secure, the clinic remains online. given the second lockdown in november 2020 we are experiencing at the time of writing, this was by far the best decision. students would probably have agreed to come on campus for face-to-face client meetings, but for the clients and external supervisors, the remote clinic works better, at least for now. even for some of the internal supervisors, whist they remain working from home and teaching online, it is simpler to maintain their clinic work online too. clients have finally recognised the advantages in accessing a remote clinic. they no longer have to worry about taking time off work for their appointment or finding childcare cover. they no longer have the problem of ensuring they have the permit to park on our campus or locating the correct bus to get here. many of our external supervisors are also more easily able to continue being a part of the clinic when they do not have to travel to our campus but can log on to an online meeting. this is particularly the case when their own firms would not permit them to visit our campus at present and some are still working from home. if third parties were allowed onto campus, we would be at ongoing risk of having to change this – often on short notice. we now know the virtual clinic works for everyone, and it can remain steady during these fluctuating times. practice report 193 whilst we have not specifically surveyed the clients to enquire whether they would prefer to remain online, not a single one has asked to have their appointment on campus. this allows us to capture clients from a wider geographical area. there is the issue of whether virtual advice can work for vulnerable clients. however, if a client is suffering from physical or mental health issues, being able to reach legal advice from virtually anywhere should hopefully be seen as a positive. the flexibility of online meetings would also allow them to have a third party attend with them, even if they cannot be in the same room together. we do obtain feedback from clients after every meeting. we are grateful that it has always been positive, and this did not change after moving online. however, some clients, whether it is a generational issue or simply lack of ability or confidence to utilise technology, have still refused to access us online. for example, so far, we have had no clients come to the online clinic to draft their power of attorney. we will also never be able to fully resolve the concern of who is in the room next to the client, listening in, or what is going on just beyond the camera. unfortunately, we have seen examples in our clinic of a client discussing child welfare issues with the child concerned in earshot, and another client who would not use her microphone but typed all instructions into the chat box on screen because her abusive partner was in the room next door. we cannot find solutions for every issue – certainly not with a virtual clinic only seven months old. practice report 194 on the teaching front, the cle module has now been allocated a face-to-face seminar slot on campus each week. however, this is not necessarily the positive step we had hoped for. some students struggled to return to campus, either physically trapped overseas due to travel restrictions, or having their own, or other’s, health issues to deal with. those that are in the classroom cannot do the mock interviews and small group work we had hoped for; they have to wear face coverings, sit at least one metre apart, and face the front. none of this is conducive to trying out new practical skills. should we therefore revert to purely online teaching? there is still a lot to be said for having a group of students in the classroom together. they can interact with the lecturer and each other; and learn from each other. when it comes to reflecting on their clinic experiences, they can share successes and even failures. they can actually see the person they are going to do their clinic, or other pro bono, work with and there is a sense of camaraderie. their later seminars when they are sharing reflections on their clinic work are actually named team meetings, preparing them for working amongst others, akin to the department in a law firm. what’s next? it is generally accepted that we still need to return to seeing some clients face-to-face – particularly vulnerable clients. once flh has reopened its offices and we can transport students in a covid safe way, we will return to see their clients there. some practice report 195 of them need this extra security when seeking advice on personal and traumatic events. there are also the elderly clients who don’t have access to electronic devices and internet. further, the satellite clinic at hmp the mount will only really run to full capacity when we can visit the prisoners in person. for all the advantages of the virtual clinic, interviewing in person is still a vital skill for the students to experience. it is different to a screen, in some ways easier, like maintaining eye contact; understanding body language; being able to work with their student partner and not interrupt each other. however, it also has some more challenging aspects – dealing with real ‘in your face’ emotions; proper ‘meeting and greeting’ your client; and of course, ensuring your smart attire continues below the waist! however, the virtual clinic will never disappear, not now we have shown it can work, and work well. why would we want to take a step back? and just as lockdowns 1 and 2 have caught us rather unawares, who knows when it will happen again. reviewed article 135 ephebagogy and clinical legal education.1 lucy blackburn2 abstract this article will seek to examine whether one of the reasons why clinical legal education (cle) is so effective as a teaching methodology is the age of the students participating in it. the perceived norm would be those students who are engaged in cle will be predominantly aged between 18-25 years. the central thread of this article will examine ephebagogy as a teaching philosophy for educating this age group; discuss the main objectives of ephebagogy, and, explain how these align with cle. this article will then explore whether ephebagogy can further enhance cle as a teaching methodology and contribute to its ascendance to the forefront of legal education by drawing upon the accepted benefits of cle and expand on the objectives and principles of ephebagogy as advocated by sara flowers. keywords legal education, ephebagogy, clinical legal education, legal clinic 1 acknowledgement is given for the inspiration of the title to frank bloch for his writings on andragogy and clinical legal education, frank s bloch, ‘the andragogical basis for clinical legal education’ (1982) 35 vand l rev 321. 2 lucy blackburn is a senior lecturer within the school of law at the university of central lancashire reviewed article 136 introduction even in an age of widening participation, it is not unsurprising that of the 1,597,810 students in higher education, studying for a first degree in the uk, in the academic year 2016/17 85.65% were aged 24 and under.3 evaluation of statistics from australia and canada confirm a similar situation. in australia in 2016 and 2017, 76.3% of students enrolled on a bachelor’s degree were 24 and under4 and in canada 73.2% of students enrolled on a similar degree were also aged 24 and under.5 examination of these statistics on the age range of students is of relevance to this discussion, as these students will be engaging in cle and participating in law clinics.6 with the focus of this article being on the age of the student participants and the impact their age has on the effectiveness of cle as a teaching methodology, ephebagogy as a teaching theory relevant to this age range of student will be used to argue why cle should be at the centre of any law school curriculum. the seminal research undertaken by sara flowers will ground these arguments in the literature.7 whilst flower’s work concentrated on education, there are high levels of relevance to 3https:// www.hesa.ac.uk/news,11-01-2018/sfr/247-higher-education-student-statistics-/numbers. 4 https://www.education.gov.au/selected-higher-education-statistics-2016-student-data and https://www.education.gov.au/selected-higher-education-statistics-2017-student-data. 5 https://doi.org/10.25318/3710001501-eng, statistics canada, table37-10-0015-01 postsecondary enrolments, by program type, credential type, age groups, registration status and sex. 6 the terms ‘cle’ and ‘clinic’ and ‘law clinic’ will be used interchangeably within this article. further the type of university law clinic in focus will be an in-house real-client, advice only clinic. for further information see h brayne, n duncan & r grimes ‘clinical legal education active learning in your law school’ (blackstone press ltd, 1998), 12-13. 7 s m flowers, ‘a philosophy for teaching and learning in emerging adulthood (2014) new horizons for learning vol 11, no 1 spring 2014, 1. reviewed article 137 legal education and more particularly cle. first, ephebagogy as a teaching and learning theory will be explained using flower’s definitions, followed by an evaluation of cle as the most appropriate methodology to achieve the aims.8 ephebagogy as a teaching philosophy nearly 40 years ago, frank bloch explored the andragogical basis for using the clinical method for teaching us law students.9 he discussed the concept of andragogy in modern education that had been summarised by knowles as ‘the art and science of helping adults learn’.10 andragogy as an adult centric education theory suited bloch’s analysis of cle in american universities, given that law is offered at post-graduate rather than at undergraduate level.11 this is in contrast with the uk, where law can be studied at either level. however, this article will focus on undergraduate law students, the majority of who would not benefit from knowles’ andralogical basis for teaching given they are not an ‘adult law student’ but rather an ‘emerging adult law student’. 8 cle is ‘learning through participation in real or realistic legal interactions coupled with reflection on this experience’. kevin kerrigan, ‘what is clinical legal education and pro bono?’ in kevin kerrigan and victoria murray (eds), a student guide to clinical legal education and pro bono (palgrave macmillan, 2011) 4. 9 bloch (n1). 10 m knowles, ‘the modern practice of adult education: from pedagogy to andragogy’ (cambridge, 1970) 38. 11 bloch (n1) wrote about andragogy and cle in the context of us professional, legal education ‘where law students are already graduates, have some life experience, are at least in their early twenties (often much older) and in many cases are already participating in the practice of law’ 325. reviewed article 138 the term ‘emerging adult’ was used by arnett when discussing a new conception for development, with a focus on the period between the ages of 18-25.12 emerging adults, do not identify as children, adolescents nor adults.13 there is evidence to support that emerging adulthood is a distinct period demographically and in terms of identity explorations.14 demographic changes experienced in the western world, relating to marriage and parenthood have made a period of emerging adulthood typical for young persons in these societies. 15 within an educational setting, emerging adults are not served well by either pedagogy or andragogy. the reason being that in between childhood and adulthood lies an immense period of development which neither pedagogy and andragogy are the appropriate teaching and learning theories. there is a gap between full direction (pedagogy) at one end of the teaching and learning spectrum and self-direction (andragogy) at the opposite end.16 this gap between the two established teaching theories has been referred to as an ‘estuary’.17 the existence of this gap has resulted in the need for ephebagogy as a teaching and learning theory designed to fill it. ephebagogy recognises the specific needs of emerging adults. as such, ephebagogy and not andragogy would be the most appropriate educational basis for an 12 j j arnett, emerging adulthood: a theory of development form the late teens through the twenties’ american psychologist vol.55 no 5, 469-480, 13 ibid 471. 14 ibid. 15 ibid 470. 16 knowles (n10) considers the change from dependent child to the self-directing adult to be the most important difference between children and adults as learners bloch (n1) 330. 17 flowers (n 7) 4 reviewed article 139 undergraduate uk law student. the importance of ephebagogy as a teaching theory for undergraduate law students can be evaluated by asking six questions: • what is ephebagogy? • who is affected by ephebagogy? • when is ephebagogy relevant? • where can ephebagogy be used? • why is ephebagogy needed? • how can the objectives of ephebagogy be addressed?18 for the purpose of this article these questions will be answered within the context of uk higher education. the first question of “what is ephebagogy” is answered by examining the construction of the word ephebagogy. just as knowles replaced the greek stem paid with andr, here the greek stem ephebus is used to create a word which is crudely interpreted as “the leader of the adolescents”.19 in an educational setting, ephebagogy has been described as a ‘teaching philosophy for educating students who are between 18-24 years of age and experiencing a developmental shift and are in major transition between childhood and 18 s m flowers, ‘ephebagogy – a white paper for educators and researchers,’ 27 april 2016, http://saramarandiflowers.weebly.com/guiding-works-ephebagogy.html. 19 a youth of ancient greece just entering manhood or commencing training for full athenian citizenship. http://saramarandiflowers.weebly.com/guiding-works-ephebagogy.html reviewed article 140 adulthood.’20 logan has referred to ephebagogy as the ‘missing link’ between pedagogy and andragogy.21 the answer to the second question of “who” has already been developed; these are students who are between the ages of 18 and 24 years old and are enrolled in secondary or tertiary education. they may or may not still live with their parents but they are frequently financially supported by them.22 they are experiencing a period of ‘semi-autonomy’, where they will take on some responsibilities of independent living but leave other responsibilities to their parents, the university or society. 23 they have left the dependency of childhood and adolescence but have not yet entered the enduring responsibilities that are normative with adulthood, such as homeownership, parenthood or permanent employment.24 even though undergraduate students can now have more complex caring and financial responsibilities arguably than previously experienced, the assumption is made that the majority will still not be experiencing the level of adult responsibility that is to come. 20 flowers (n 7) 1. 21 j p logan, ephebagogy: the missing link between pedagogy and andragogy. conference presentation in preparation. school of information technology management, ryerson university, toronto, canada (2004). 22 official statistics confirm this statement: the percentage of 24 year olds living with parents has increased by 11.9% to 41.7% from 1997 to 2017. likewise, the percentage of 24 year olds owning their own home has decreased by 21.8% to 18.6% over the same period. office for national statistics, ‘milestones: journeying into adulthood’ (2017).https://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/populatio nestimates/articles/milestonesjourneyingthroughadulthood/2019-12-17. 23 arnett (n12) 471. 24 ibid 469. reviewed article 141 the third question of “when” becomes relevant when transition is experienced by this age group. no exact time frame can be given for when young people will transition from childhood to adulthood; some will transition earlier than others and some later and this article does not dare to offer any perspective from a biological, neurological, developmental or sociological basis.25 for the purposes of education, this transition is the transition from further education to higher education. 26 the fourth question of “where” looks at where and in what setting ephebagogic theory can be used. the obvious outlets for an ephebagogic approach will be in higher education, where the aim of the university is not only to educate the student but also to develop the student as an individual. however, the application of this theory is not just limited to higher education; it can be used in work place settings where staff of this age range join workforce training programmes.27 the question of “why” has already been answered in earlier discussions and will not be overtly scrutinised again. the need for a distinct teaching theory for those students that are between the accepted educational theories of pedagogy and andragogy is evident due to the learning needs of this group. the final question is the most important aspect of this theory and where the link with cle begins to emerge. when discussing the “how”, flowers refers to the three aspects of teaching, the environment and the objectives as to how ephebagogy can be developed 25 the specific chronologic age in this period is less important that the actual feature of the transition. 26 flowers (n18) 1. 27 flowers (n18) 1. reviewed article 142 within teaching and learning strategies.28 the three main aspects of how ephebagogy can be developed and delivered will now be explained , followed by an evaluation of how cle can meet the requirements of an ephebagogically based programme of instruction for educating undergraduate law students.29 2 the three aspecst of ephebagogy 2.1 teaching the first aspect of how ephebagogy can be developed is teaching and focus is on the four principles of relevance; revelation; responsibility and relationships.30 for ephebagogy to be effective the student must understand and appreciate their learning as relevant; they must be brought into the world.31 to achieve this objective, taught sessions have to be relevant to the student and bring the outside world into the classroom in which they are studying. this relevance can be achieved by students visiting places that reinforce classroom teaching; taking jobs in the fields that interest them or getting outdoors to see content in action.32 when the student understands the relevance of a learning activity or skill they should then experience the second principle of revelation. 28 flowers (n 18) 2. 29 bloch (n 1) 338. 30 flowers (n7) 5. 31 ibid. 32 flowers (n 7) 5. reviewed article 143 this is closely linked to the first principle, as revelation should occur directly after the student understands the relevance of an activity. in the classroom, revelation occurs when the student is exposed to the truth about themselves and the world in which they operate.33 after the student has undergone a revelation, they must take responsibility for their outcomes. assuming responsibility is an integral part of the development and transition from childhood into being an adult. the student must be given choices to decide what they learn.34 ephebagogical theory does not support students having a passive role, or simply be provided with the answers to a problem. they are encouraged to ask questions, in order to fully complete their understanding of an activity.35 the student then embarks on a learning journey accompanied by facilitators rather than teachers.36 if followed correctly, this approach will elicit an emotional response from the student, which in turn will lead to greater engagement in the subject.37 the fourth principle focuses on the importance of relationships in the learning process and the need for students to fully engage in these relationships. the relationships in 33 ‘i can see the connections and the relationships make sense’ flowers (n18) 2. 34 flowers (n 7) 5 goes even further to say that learners should be able to decide what type of assessment they undergo. 35 ibid. 36 this method encourages students to find their own answers to legal problems, rather than just reading how others found answers. students are required to use more advanced skills. j eagar ‘the right tool for the job: the effective use of pedagogical methods in legal education’ (1996) 32 gonz l rev 389, 405. 37 flowers (n 7) 5. reviewed article 144 focus are those the student has with the ‘work’ and with others doing the ‘work’.38 these relationships help prepare the student for adulthood and can be achieved in the classroom by participating in activities such as discussion, debates and cooperation that allows the student to operate in ways that mirror participation in adult, democratic life. 39 when using cle as the methodology in which to promote ephebagogy, some principles align more neatly than others. when looking at how cle can facilitate the relevance of a learning activity, there are abundant examples over and above work undertaken in advice only law clinics.40 it is also evident that the time a student spends in clinic is certainly relevant in the truest sense of the word and there is no better way of bringing the real world into an educational settings. if clinic students are allowed to examine issues that are not limited to a specific subject and where the answers are not always easily accessible from a textbook,41 they will also be able to undergo a revelatory experience in clinic by dealing with clients and situations involving risk, discomfort, struggle and conflict.42 38 flowers (2014) at 2 39 flowers (2014) at 5 40 one example would be participating in community outreach programmes such as that run by the university of essex by which students offer advice to residents of jaywick, which is the poorest community in the uk. 41 a m lerner (1999), law and lawyering in the work place: building better lawyers by teaching students to exercise critical judgment as creative problem solvers, 32 akron l rev. 107, 116. 42 k seear, l bliss, p galowitz & c f klein ‘exploring the role of emotions in clinical legal education: inquiry and results from an international workshop for legal educators;, the law teacher, 53:4 (2019), 487-499, 489 reviewed article 145 a high level of personal responsibility is required from students in order for cle to function effectively. in clinic, the student advisor is given responsibility to decide on the most appropriate questions to ask in the client interview; followed by deciding upon the most effective research strategy to provide the correct advice to the client. here, the student advisor is responsible (perhaps along with another student advisor) for considering all potential legal aspects that could apply to the client and their situation. a student engaged in cle, should be confident to take responsibility for the research they have undertaken and the advice they give to the client.43 seear et al argue that ‘cle provides a unique opportunity for students to deeply engage with emotions, in part because emotions are experienced as a regular feature of clinics.’ 44 by engaging with a reallife client or scenario an emotional response should have been elicited from the student.45 student advisors are forced to notice how their actions (or inactions) impact on their relationship with the relevant clinic stakeholders and the student is required to deal with the consequences and ramifications. 46 the consequences felt by the client, advice partner and clinic in general are not easy to ignore given the human interest involved 43 student supervisors should be asking ‘am i ok signing my name’ in the context of a client advice letter. flowers (n 18) 2. 44 seear et al (n 42) 489 45 ‘the students’ experience with human problems in the law clinic always has the potential of being emotionally real. the student is directly involved in a acse and can explore its social and psychological implications in as great a depth as his motivation allows.’ bloch (n1) 342. 46 an example would be when a student does not fully engage with the client and the process and the resulting advice is late, incomplete or worse inaccurate. reviewed article 146 in the process. clinic is very much a ‘two-way street’ 47 and the relationships that students have with supervisors and clients is one of the most central and important aspects of effective clinical teaching.48 2.2 environment the second principle of “how” is the environment that students learn in. for ephebagogy to be effective, the environment of the target learning activity or skill must include the unfamiliar, opportunity, teamwork and protection49 the learning environment must be designed to allow the student to explore activities, settings, interactions and cultures that are unfamiliar to them.50 students must be given the opportunity within the classroom environment to test their current interests; explore new interests, discover unknown interests and also feel supported to abandon interests if they choose. this also reinforces the theory that experiencing the unfamiliar is again part of the transition to full adulthood. a goal of the target learning activity should be to organise learning around relationship building and encourage and develop teamwork and camaraderie between students and lecturers.51 47bloch (n1) 338. 48 seears et al (n 42) 491. 49 flowers (n 18) 2. 50 ibid 51 ibid. reviewed article 147 one of the differences between childhood and adulthood is the acceptance of responsibility.52 at some point during this transition period, the student must start to accept full responsibility for their actions.53 indeed, it is accepting responsibility for one’s self and the making of independent decisions that arnett considers to be the top two criteria for the transition from childhood to adulthood.54 responsibility in ephebagogy is supported by developing a teaching environment that protects the student from calamitous consequences, yet still maintaining their autonomy.55 thus, allowing the student to try new skills and test these skills in an adult environment, without fear of recrimination. incorporating failure into the classrooms, ensure that students are more invested in understanding the problems that they are trying to solve.56 for a student engaging with cle, principles of environment map neatly against the expected outcomes of clinic. for instance, cle can certainly introduce students to the unfamiliar as they experience the activities, settings, interactions and cultures that present themselves in clinic. the issues that clinic clients present with often do not 52 this is not a discussion on the legal right afforded to individuals over the age of majority. rather it is emotional maturity and acceptance of responsibility from this perception that is being examined. 53 this would echo the gradual release of responsibility instructional framework, which purposefully shifts the cognitive load from teacher to student. through the process of gradually assuming more and more responsibility for their learning the student becomes a competent and independent learner. d fisher & n frey, ‘better learning through structured teaching, a framework for the gradual release of responsibility, (2nd ed) 2014 ascd, 2. 54 arnett (n12) 473. 55 flowers (n18) 2. 56 m fuglei, ‘why students who embrace short-term failure have a better shot a long-term success’, education.cu-portland.edu/blog/classroom-respources/student/failure reviewed article 148 follow the law curricula; students are often asked to advise on topics which do not form the content of credit bearing modules. in this situation, the student cannot say to the client “i’m sorry but i haven’t studied this subject yet, can you come back next year?” the student must immerse themselves in this unfamiliar subject in order to advise the client. the immersion in the unfamiliar also allows for the student to test their interest in an area of the law not covered by their law degree. 57 there are strong parallels between teamwork undertaken within clinical teaching and the relationships developed. for a student to be successful on a cle module or to excel in clinic, they cannot work in isolation; teamwork is one of the core principles of cle.58 in an advice only clinic, students can only achieve the outcome of timely and accurate advice by working closely and effectively as a team with the other students in clinic, with their supervisor, with the client and perhaps with external bodies. for the student engaging in cle, there is always the “safety net” of their supervisor to allow for responsibility to flourish and to offer a form of protection. if all the correct clinic procedures are followed, a client will never be given incorrect advice or prejudiced in any way due to the failings of a student advisor. the supervisor is there 57 for example, a student may feel they are destined for a career in commercial legal practice, yet participating in a family law clinic may completely change their mindset. there is also the opportunity for the student to experience whether they have a liking for the law at all. 58 weinstein & morton refer to ‘collaborative intelligence’ in the context of practising lawyers but the same can be applied to students involved in law clinics. j weinstein & l morton, ‘knowledge of and comfort with collaborative work, results in more effective client outcomes’. in l wortham, a scheer, n maurer, s l brooks ‘learning from practice, a text for experiential legal education´ (west academic publishing, 2016) 3rd ed, 428. reviewed article 149 to also protect the interests of the client, even if this means the supervisor must re-write advice before it is sent out this allows the student to focus on understanding the problem posed by the client. 2.3 objectives the objectives of the ephebagogical method are: resilience, becoming a more selfdirected learner, relationship skills, independence and defining passion.59 looking at the first objective, the student is to be encouraged to build resilience.60 whilst failure in summative assessments is not the desired outcome, students must be given the opportunity to fail and then retry at numerous points. for students to develop their resilience, they must be given this opportunity to fail in a safe and supported environment. as already discussed at length, one of the main differences between pedagogy and andragogy is the extent of self-directed learning the student undertakes. with ephebagogy, students are being encouraged to develop self-directed learning at every opportunity.61 flowers describes the need for students who ‘are not simply sojourning 59 flowers (n 18) 2. 60 flowers (n 7) 5 gives the example of wd-40 lubricant (wd-40 2012). that #40 was the formula that was successful 5. 61 for the purposes of this article, self-directed learning is distinguishable from independent learning; with the latter being learning occurring outside of a taught session but that was still encompasses an element of direction. for example, further but not essential reading. self-directed learning is where a learner has no guidance or instruction and has to be completely self-reliant in their learning journey. reviewed article 150 in our society’ rather students must be allowed to take an active role in making a difference in society.62 one of the objectives of ephebagogic curriculum design should be that students are afforded multiple opportunities to develop their interpersonal skills. whilst there are obvious similarities with teamwork and encouraging activities that include teamwork, the focus here is on the ability students have to relate with others rather than actually working with them.63 due to the ‘sweeping demographic shifts’ that have taken place over the last century, this generation’s emerging adults have not had to contend with the same pressures and occurrences that previous generations had to.64 students also need opportunities to develop their empathy skills, which they may not have previously used.65 finally, emerging adults should be given the opportunity to ‘define their passion’.66 not much further detail is added for this objective, however this could interpreted as allowing students to experience their intended career. in melissa hardee’s 2014 study, her findings revealed that over 70% of law students surveyed were studying law with 62 ‘these students will eventually be citizens that raise children, labor (sic) with their hands and vote for leaders, inform their neighbours, care for their environments and leave the world greayer when their lives are over’.flowers (n7) 4. 63 admittedly, a learner with excellent inter-personal skills would be expected to be an excellent team player. 64 arnett (n12) 469. 65 seear et al (n 42) 498. 66 flowers (n 7) 2. reviewed article 151 the intention of entering a career in the legal profession.67 this percentage is contrasted with the generally accepted figure of 40-50% of law graduates who actually enter the legal profession..68 something is clearly happening over the three or four years of an undergraduate law degree that causes the percentage to drop. the answer could be that these students are not given the opportunity to define their passion, within their undergraduate studies and experience life as a lawyer. resilience is a skill that requires development and the learning experience created by cle is perfectly suited to subtly building and developing resilience in students. this development is achieved by students experiencing an emotional reaction in clinic, as they are developing their own capacity to protect themselves and therefore develop their resilience.69 resilience is also developed in cle with students being directly responsible for acting upon the feedback they have been given in an advice letter by their supervisor. their resilience is subtly developed through engaging with the critique of the letter given by the supervisor and the subsequent amendments required before it is sent to the client. 67 career expectation of students on qualifying law degrees in england and wales: interim report: comparing the first year of the cohort study in 2012-2013 with the ukcle study march 2012’, melissa hardee, hardee consulting (2014) https://www.heacademy.ac.uk/system/files/resources/hardee_interimreport_2014final.pdf 13. 68 ibid 35. 69 seear et al (n 42) 498. https://www.heacademy.ac.uk/system/files/resources/hardee_interimreport_2014final.pdf reviewed article 152 the development of self-directed learning is encouraged in cle, as the classroom becomes a ‘mutual search for solutions and knowledge’.70 again this reinforces the clear distinction between andragogy and ephebagogy, with the former firmly establishing self-learning and the latter working towards it. in cle this is evidenced by clients presenting themselves with issues that may not map neatly to module learning outcomes. in order to advise the client, the student needs to go beneath the surface of their current knowledge and embrace new areas or law and procedure. cle allows and encourages independence of thought to develop because it is delivered in a manner that does not necessarily prescribe definitive answers to the problems posed. the student has to think outside the ideals of “model answers” and consider all potential solutions or advice available the client.71 it is acknowledged that some students have led sheltered lives and cle has the ability to draw these students out of their perceived comfort zone and allow them to interact and empathise with all sections of society. cle not only allows for students to experience the practise of lawyering but also to experience various matters of law and policy. students are permitted to experience the roles and responsibilities of a solicitor within the safe confines of the clinic. students can experience this quasi-employment aspect of budding citizenship, which 70 g bellows & e johnson, ‘reflections on the university of southern california clinical semester’, 44 s. cal. l. rev. 664, 694. 71 the author is reminded of an anecdote (credit unknown) that neatly sums up the idea of independence of thought. ‘twelve lawyers given identical documents will amend them in twelve different ways’ reviewed article 153 affords them the opportunity of being able to define what their passion is (or not). the most in demand subjects for clinics are those which are often absent from the choice of modules in law schools.72 the ability for students to experience these subjects is now of greater importance, with the introduction of the solicitors qualifying exam that does not have a private client focus. the role of the clinic can also be extended to allow these emerging adults to define their passion in these subjects. conclusion in order to fulfil the potential of students classed as emerging adults, ephebagogy is the only teaching methodology which adequately supports and develops this group and should be engaged and utilised within higher education. otherwise, arguably, educators could be accused of setting these students up to under achieve or even fail. this article has shown how ephebagogy can serve as a ‘coherent theoretical background for a methodology based justification both for the clinical method of legal instruction and the addition of a clinical component to the law school curriculum.’ 73 given the constant battles that clinicians fight to get cle at the fore front of the law curricula, the core principles of ephebagogy must strengthen the argument for further integration. ephebagogy as a teaching philosophy, together with cle as a teaching methodology, show that the core student audience will experience greater learning through cle not just because of the experiential style of teaching but also because of 72 for example welfare law, housing law. 73 bloch (n1) 325. even though bloch was writing in the context of andragogy and cle, the sentiment applies equally to ephebagogy and cle. reviewed article 154 teaching is appropriate to their stage of transition at the time of the learning experience. flowers asked the question in her work, ‘what are the best teaching methods and the best practices for drawing out the qualities in young people that will make them fully fledged, contributing members of society?’74 this article has confirmed the answer to that question in the context of undergraduate law students, is clinical legal education; the pedagogies, practice and performance.75 acknowledgements i would like to thank the participants of the enlce conference held in turin in september 2018 for their constructive feedback. 74 flowers (n 7) 4. 75 l s shulman, ‘signature pedagogies in the professions’, daedalus, summer 2005, 134,3 55. foreword 5 foreword the school of law at the university of northumbria has run a programme of clinical legal education since 1980. all students on our exempting law degrees participate in this programme. we had long been considering publishing some kind of journal specifically dealing with clinical legal education. two things prompted the format and scope which we have decided upon. first, when i attended the commonwealth legal education conference in jamaica in december 1998, i discovered just how much exciting work there was going on around the world. we already had many contacts in the united states but the existence of so many programmes both well established and new was most impressive. from those people i spoke to there was a strong feeling that we had a lot to share and learn both from our similarities and differences. once we had started the ball rolling more and more contacts around the world appeared and i’m sure this process will continue. the other factor which has helped us enormously is the growth of electronic communication, which makes a truly international editorial board so much easier than even five years ago. we are however anxious that those not on the internet should not be excluded from this venture and welcome contributions by post and fax. the editorial board will, we hope grow, to include regions and areas of expertise not as yet covered. at the end of october 2000 i left the university. cath sylvester has taken over as editor of the journal. i look forward, with enthusiasm, to seeing the development of something which was at least to start with ‘my baby’ as someone who knows they won’t have any more nappy changing! goodbye and good luck. tessa green we hope that this new journal will provide a forum for discussion on clinical legal education across the world. to this end we welcome contributions from those involved in the provision of legal education and students alike. we have tried to encourage both discussion on some of the underlying pedagogical issues affecting clinical legal education as well as providing a forum for consideration of more practical issues, including the development and format of specific clinical programmes. we are in the rare position as legal academics to work in a field of legal education which is not confined by subject matter to a particular geographical area. we look forward with enthusiasm to stimulating a truly international debate on all aspects of clinical legal education and also look forward to responses to this edition. we welcome contributions to future editions of the journal. tessa green and i would particularly like to thank judith dickson, neil gold and roy stuckey for their help with this first edition as well as the staff at the university of northumbria. i would also like to thank tessa for her hard work and enthusiasm in starting this journal. cath sylvester editor 6 journal of clinical legal education november 2000 201077je_jcle_july07 teaching law and educating lawyers: closing the gap through multidisciplinary experiential learning alan m. lerner† and erin talati‡ summary interdisciplinary legal education found its roots nearly a century ago, but recently there has been a renewed trend both in the literature and in practice to increase interdisciplinary opportunities in clinical and scholarly activities. in the classroom, proponents have argued that interdisciplinary education is essential to understanding the cultural and social contexts in which legal conflicts arise. additionally, scholars praise the interdisciplinary model – in both teaching and practice – for its tendency to generate a higher level of thinking from those considering problems from diverse viewpoints. the use of interdisciplinary models also promotes mutual respect between professionals from different disciplines, a working knowledge of the domain of another discipline, enhanced communication through learning both the mechanisms and vocabulary of other professions, and increased understanding another discipline’s “rules, beliefs, and ethical principles.” finally, creating an interdisciplinary framework can enhance the efficacy of the lawyer’s problem solving efforts through providing a means by which goals, strategies, and unique insights of different “helping professions” can be united in pursuit of a common purpose. the value that interdisciplinary approaches offer is often sharply countered by the challenges it creates. the most common challenges are those created by perceived or actual role boundaries within individual professions and the process of professional socialization that occurs during traditional legal training. although this first criticism is challenging, it is not impossible to overcome. the second barrier to productive interdisciplinary work is also mutable, and reversing a socialization process that disfavors interdisciplinary experiences should therefore be a primary focus of legal educators. this paper proposes that † practice professor of law, university of pennsylvania law school ‡ md/jd, university of pennsylvania, 2007 we are deeply indebted to our colleagues dr. cindy christian, and diane smith-hoban, msw, whose vision, energy, creativity and courage were essential to the creation and growth of the collaboration that is the interdisciplinary child advocacy clinic. journal of clinical legal education december 2006 96 interdisciplinary advocacy for children involved in the child welfare system provides an intense experiential learning process, which engages students in a mutually dependent relationship with students from other disciplines and promotes long-term appreciation and facility for interdisciplinary work. it describes this experience in the context of one such clinic, providing a model for the development of future interdisciplinary endeavors. introduction when i enrolled in the child advocacy clinic, i knew that it would present a wholly different experience than the ones to which i had become accustomed. although i have been acutely and vocally aware of some of the constraints of the law school curriculum, the one thing you can say of introductory law school courses is that they are emotionally safe. as far as i am aware, no one has experienced any emotional damage from reading the erie decision in a basic civil procedure course. of course, that may be due to the simple fact that no one has ever experienced any emotion at all during that kind of experience.1 traditionally, legal educators – almost exclusively professors trained in law – have focused their students’ learning on the theory and doctrine of “the law,” the structure of the legal system and its institutions, and the profession’s analytical and problem solving processes. in law and most other schools for professional training, professional education also means focusing, with laser-like singularity of purpose, on the students’ cognitive powers to the exclusion of their values and emotional systems. that focus, intended to teach law students “to think like lawyers,” has produced, we believe, a narrowing of the students’ vision about themselves as professionals.2 lawyers learn that they work in legal environments with other lawyers, judges, or related legal actors, analyzing legal problems using legal materials and legal analysis, and that, at least by implication, with the exception of occasional reference to “expert witnesses” there is little need or space to collaborate with persons trained in other disciplines, let alone non-professionals. we agree that being a lawyer requires those analytical skills. however, being a lawyer, as opposed to a scholar-teacher of law, means providing services to individual and institutional clients, often in extremely trying, high stakes circumstances in which other disciplines may be of critical importance to achieving the client’s goals. being a lawyer means facing ethical choices daily. and when collaborating with professionals from other disciplines, looming ethical issues may require harmonizing conflicting ethical mandates. furthermore, being a lawyer means participating in a self-regulating profession that possesses a virtual monopoly on the critical positions in the formal legal system that administers justice for the entirety of society, and has special training, and therefore special position and power in the legislative and executive branches of the government at all levels. in such circumstances, collaboration is essential if lawyers are to advance their clients’ best interests, fulfill the promise of their profession, and assure that the machinery of government in general, and of justice in teaching law and educating lawyers: closing the gap through multidisciplinary experiential learning 97 1 clinical law student (2003) (journal entry, on file with author). the interdisciplinary clinic discussed in this paper uses journaling as an educational tool to reflect on the implications of students’ daily experiences, and as a means for clinic students to process much of the intense emotion that results from their casework. throughout this paper, a number of student journal entries, with the author’s identification removed, will be featured. for further discussion of journaling see infra part ii.b.4.b (discussing journaling as a tool for managing reactions to work). 2 william m. sullivan et al., educating lawyers: preparation for the profession of law (jossey-bass 2007) [hereinafter carnegie report]. particular, functions in a legally and morally appropriate manner.3 yet, as a consequence of the narrowness of their training lawyers may not even realize the breadth and variety of their roles, the importance of other disciplines in carrying them out, or their own limitations as lawyers in fulfilling them. this paper will argue that effective education of lawyers must, and can, prepare them to collaborate with other professionals in both fully understanding, and achieving their clients’ goals, and in fulfilling the lawyers’ roles as members of the legal profession and participants in the democratic system of governance. part i of the discussion examines the principles underlying traditional legal education and provides a basis for encouraging change. part ii discusses generally the history of collaboration within the legal profession, and specifically a collaboration within the interdisciplinary child advocacy clinic at the university of pennsylvania law school. part iii considers potential barriers to collaborative work but concludes that planning and commitment can overcome these obstacles and permit the benefits of interdisciplinary collaboration to be recognized. i. traditional legal education a. a bit of history the study of law is ancient, and it is fair to assume that as long as there has been legal discourse, there have been scholars and teachers of the law. since at least the time of the enlightenment, the great universities throughout the world have been developing similar models of pedagogy for teaching post-secondary students: lectures, seminars, and tutorials taught by established scholars in the particular discipline. but advanced education was. until modern times, the exclusive province of those who were wealthy, powerful, or committed to organized religions. despite the long history of the study of law, lawyers as we know them today – advocates for clients, available to a broad swath of the citizenry regardless of class – are a relatively recent phenomenon. the education of lawyers in a university setting is even more recent. although sir william blackstone began delivering his lectures on english law in the mid 18th century, the primary training model for british lawyers from the middle ages through the mid 20th century has been apprenticeship, centered in inns of court.4 similarly, although the united states constitution is the product of the work of, among others, famous lawyers including thomas jefferson, john adams, and james monroe, none of the founding fathers, and none of the country’s first generations of lawyers – including jefferson, john adams, john quincy adams, andrew hamilton, patrick henry, james monroe, john marshall and even joseph storey and abraham lincoln for 3 legal academic literature contains a rich history of thoughtful analysis and recommendations to make the education of lawyers better suited to the needs of lawyers, the profession, and the clients they serve. see, e.g., jerome frank, why not a clinical lawyer-school?, 81 u. pa. l. rev. and law register 907 (1933); anthony g. amsterdam, clinical legal education – a 21st century perspective, 34 j. legal educ. 612 (1984); report of the task force on law schools and the profession: legal education and profession development – an educational continuum, 1992 a.b.a. sec. of legal educ. and admissions to the bar; phillip areeda, always a borrower: law and other disciplines, 1988 duke l.j. 1029 (1988); carnegie report, supra note 2, at 45. (“the challenge is to align the practices of teaching and learning within the professional school so that they introduce students to the full range of the domain of professional practice while forming habits of mind and character that support the students’ lifelong growth into mature knowledge and skill.”). 4 see raymond cocks, foundations of the modern bar (sweet & maxwell 1983) [hereinafter cocks, foundations]; raymond cocks, sir henry maine: a study in victorian jurisprudence (cambridge univ. press 1988) [hereinafter cocks, victorian jurisprudence]. journal of clinical legal education december 2006 98 that matter – earned university degrees in law.5 they and their contemporaries learned their profession as apprentices.6 although there have long been appointed lecturers in law at a number of colleges and universities, the modern american law school can be traced to the efforts of joseph storey at harvard in the early 19th century, as well as those of harvard president charles eliot and his selection as the dean of the law school, christopher columbus langdell, after the civil war.7 from that point on the post-baccalaureate professional school model steadily squeezed out the apprenticeship model of legal education in the united states until, by the late 20th century, apprenticeship as a means of becoming a lawyer had all but disappeared. langdell’s theory and methodology reflected that used to teach post-secondary school philosophy, history, mathematics, biology, etc. it assumed that law is a science and should be taught from original documents – statutes, and, given the fact that ours was a common law jurisdiction, the decisions of appellate courts. in this model, individuals steeped in the knowledge base, structures, procedures, and values of the particular discipline lecture to students or guide them using reading and writing assignments, socratic dialogue, large classes, smaller seminars, and individual tutorials, towards the goal of the students learning the theory, principles, and doctrine comprising the body of knowledge of the discipline. in law, that body consists of legal rules organized into a variety of legal “cubbyholes,” e.g., contacts, torts, criminal law, civil procedure, etc., the structure of the legal systems in which they operate, and a system of critical analysis used by legal academics, lawyers and judges (i.e., “thinking like a lawyer”), taught through the “socratic dialogue”.8 in the prevailing systems throughout the world, the basic model for teaching law is housed in universities alongside departments devoted to teaching other disciplines in similar pedagogic models, and law graduates receive the same undergraduate degrees (e.g., b.a. or b.s.) with their major field of study being “law.”9 in the united states, and a few other jurisdictions, the teaching of law is housed in post-university level colleges of law which offer the degree of juris doctor (j.d.). in all of these systems, however, law students study law with other law students under the tutelage of law-trained professors using the same basic teaching methods and materials as the professors used when they studied law.10 while the theory and pedagogy begat through the lineage of storey and langdell and the post-middle ages european universities does an excellent job of teaching the theory and doctrine of “the law” and formal legal analysis, it has not succeeded in teaching the craft of “lawyering,” nor the roles of advocate and counselor for clients, member of the 99 teaching law and educating lawyers: closing the gap through multidisciplinary experiential learning 5 daniel r. coquillette, the legal education of a patriot: josiah quincy jr.’s law commonplace (1763), ariz. st. l.j. (forthcoming summer 2007), available at http://ssrn.com/abstract=949331 (manuscript at 4) (discussing the rigor of much of the legal apprenticeship training in the united states in the 18th and 19th centuries). 6 id. 7 id., see also carnegie report, supra note 2, at 4–6 (discussing the evolution of the modern model of legal education in the united states from the divergent paths of european universities and british apprenticeships). 8 see coquillette, supra note 5, at 7–9 (describing eliot and langdell’s distillation of law into science at harvard law and the profound change it wrought in popular conceptions of the law); carnegie report supra note 2, at 4–6 (discussing the theory of legal education espoused by joseph storey and christopher columbus langdell ). 9 the j doctor degree is actually a recent creation. around 1970, american law schools began to replace the bachelor of laws degree, the l.l.b., with the juris doctor degree. see, e.g. j.d.s now available for alumni, n.c. l. rec. 1, 5 (unc law school student bar association, chapel hill, n.c.) (jan 1970). 10 up until the late 19th century, most legal education in the united states was in the form of apprenticeship with licensed practitioners. following on the teachings of harvard professor christopher columbus langdell, who taught that law is a science and that its study should parallel that of other arts and sciences, legal education in the united states moved from apprenticeship to its present form in law departments and schools either free-standing or as part of a college or university. jack m. balkin and sanford levinson, law and the humanities: an uneasy relationship, 18 yale j.l. & human. 155, 159 (2006) (“langdell’s avowed mission was to transform american legal education into ‘scientific analysis’ . . . .”). profession, or public citizen.11 at least in part this can be traced to the fact that law teachers are, for the very most part, professors with little or no experience practicing law, and their experience and interest is in legal theory and doctrine, not in the roles and work of the practicing lawyer.12 over the centuries, this system has produced many brilliant scholars of the law. continued progress, however, may require change.13 b. preliminary assumptions: the legal academy’s “articles of faith” for many years, law schools around the world – both undergraduate and graduate – have shared several of what might be called “articles of faith” about legal education: 1. in law school we teach students to think like lawyers. 2. the cornerstone of thinking like a lawyer is abstract critical analysis, or critical thinking. 3. the process that we call critical analysis or critical thinking is the same in all contexts. 4. lawyers work in legal environments with other lawyers, judges, or related legal actors. 5. with the exception of “expert witnesses” there is little need or space to collaborate with persons trained in other disciplines, let alone with non-professionals. 6. lawyers, as representatives of their clients, are bound by a “role morality” such that their individual values are either irrelevant, or at most subservient to the goals of the client, and the standards of professional responsibility imposed by local laws and practice. 7. the emotions of the lawyer are irrelevant except insofar as they might get in the way of critical legal thinking, and thus should be actively repressed. 8. justice is a “legal” concept, defined, structured and achieved by lawyers for their clients, and relates, essentially, to achieving for one’s client whatever the law provides for her in a given situation. if these shared articles of faith were true, it would not be a great challenge to train lawyers to do estimable work for their clients, the profession and the community. students could be taught the relevant theoretical and doctrinal principles, applicable legal systems, procedures, and sources of law, and to apply their classical critical legal analysis to whatever legal problem came their way. and, voila! lawyers! 11 carnegie report, supra note 2, at 4–6, 19, 26–30 (indicating that the effective practice of law is actually three different, though related and integrated, activities including analysis of legal and related materials, being an advocate and counselor for clients, and participation in the profession as a member and as a public citizen, and arguing that reducing law to science permits the effective teaching of theory, doctrine and analysis but fails to teach how to understand and execute the other two roles of the professional.); alan m. lerner, using our brains: what cognitive science and social psychology teach us about teaching law students to make ethical, professionally responsible choices, 23 quinnipiac l. rev. 643 (2004) [hereinafter lerner, using our brains] (arguing that developing the critical elements of “role” and lawyering skills essential to the effective practice of law requires experiential teaching and learning); paul brest, the responsibility of law schools: educating lawyers as counselors and problem solvers, 58 law & contemp. probs. 5, 6 (1995) (criticizing law schools’ failure to adequately to prepare students in skills beyond doctrine and legal analysis). 12 carnegie report, supra note 2, at 4–6 (arguing that the triumph of the storey/langdell approach to legal education necessarily replaced apprentice masters, who had been drawn from the ranks of experienced practitioners, with “scholar-teachers”). 13 see carnegie report, supra note 2, at 12 (“[law schools face an] increasingly urgent need to bridge the gap between analytical and practical knowledge.”) journal of clinical legal education december 2006 100 c. teaching law versus educating lawyers – the three-pillared apprenticeship modern legal education is, however, or should be, different from the education appropriate in the arts and sciences for at least two reasons. first, the subject matter – law – differs in at least one critical facet from the “sciences”: law reflects human choices to govern our behavior based upon our values, and thus can validly differ significantly from jurisdiction to jurisdiction in ways not applicable to the sciences.14 additionally, legal education differs critically in its role in society from education in other of the arts and sciences taught at the post-secondary school level. in every discipline from african history through zoology, graduates who remain in the discipline generally pursue careers based upon their studies in that discipline by further research and scholarship limited to that discipline. their hard work and creativity expand the knowledge base in that discipline, which they, in turn, teach to each new crop of students. not so in law. true, some law graduates pursue careers in the legal academy using essentially the same analytical and research tools they learned in law school. yet the vast majority leave the academy to become practicing lawyers responsible not to advance the knowledge base of the law and teach it to others, but rather to serve the expressed goals and needs of their clients, and to contribute to the development of the legal rules and systems which govern our society.15 clients, as any practicing lawyer knows, are complex creatures, constrained by the contexts of their lives and communities, with a plethora of goals, concerns, needs, and desires, and are frequently faced with other persons or entities seeking contrary or inconsistent goals. the legal problems that most clients present to their lawyers represent only a small piece of their lives, inextricably intertwined with other important issues they face. knowing the law and being able to analyze legal theory and doctrine are necessary to assist clients to solve their problems – whether those problems arise under the rubric of litigation, transactions or personal planning – but they are not sufficient. the skills and craft of the professional must be brought to bear as well.16 at the same time, the fundamental and pervasive role that law, and thus lawyers and the legal profession, plays in the maintenance of a free society suggests that attempting to abstract legal analysis from values may be at the least undesirable, and perhaps impossible. those considerations should move us to re-examine the “articles of faith”.17 doing so, we submit, should lead the legal academy to significantly change how it prepares law students to be effective, responsible lawyers for their clients, and important contributors to the system of law that governs our lives. how to do that? teaching law and educating lawyers: closing the gap through multidisciplinary experiential learning 101 14 consider merely the significant structural and procedural differences between systems based upon the common law (i.e., the anglo-american model) and those based upon a code (i.e., the continental model); or between an inquisitorial and adversarial model of the law’s response to crime. 15 thus, while lawyers’ activities do contribute to the development of the law, particularly in common law jurisdictions, that development is driven not so much by their personal values, but rather by the goals and values of their clients, which may be quite different. see model rules of profl conduct r. 1.2(b) (“a lawyer’s representation of a client … does not constitute an endorsement of the client’s political, economic, social, or moral views or activities.”). 16 some in the legal academy suggest that teaching the roles and craft of the lawyer beyond teaching students “to think like lawyers” is properly left to the profession after the students graduate from law school. we would respectfully disagree for two reasons. first, although some law graduates secure employment in institutions (e.g., law firms, large corporate or governmental law departments), many go directly from law school to the bar examination to practicing law as sole practitioners, or in settings not equipped to provide that post-law school “apprenticeship,” and the profession has no mechanisms for providing it. second, if all that law school is about is the teaching of legal analysis, legal theory and doctrine, perhaps it should be located in the undergraduate university, as it is in most of the world, leaving for the post-graduate teaching the other roles and skills of the modern lawyer. 17 see carnegie report, supra note 2, at 26–28 (learning through apprenticeship with experts teaches not only the subject matter, but also its application according to the norms of the profession); lerner, using our brains, supra note 11, at 661 (suggesting that if our goal is to prepare our students to become practicing lawyers in the highest sense of that term, our knowledge of cognitive development suggests a different kind of learning in law school); howard lesnick, infinity in a grain of sand: the world of law and lawyering as portrayed in the clinical teaching implicit in the law school, 37 ucla l. rev. 1157, 1158 (1990) [hereinafter lesnick, infinity in a grain of sand] (indicating a need for re-examination of our implicit teaching). it is now widely understood that the apprenticeship model is extraordinarily effective in teaching students the “how” and “why” of a discipline, and the role of the members of that discipline in a community of fellow practitioners, as well as their role in the larger community.18 the carnegie report took a close look at the teaching of law students “to think like lawyers,” and concluded that this process is well taught in the current model, with experienced and knowledgeable practitioners of that process guiding them through their reading and understanding of legal theory and doctrine as they develop their analytical skills. however, those same professors do not seek to teach the other two apprenticeships: the craft of being a practicing lawyer for clients, and the role of a member of the self-regulating profession holding special responsibility for the law, legal system and administration of justice throughout society. this paper challenges the notion that law schools need only teach legal analysis from legal materials, arguing that to do so produces lawyers who are not adequately equipped to serve their clients’ needs, even their identified “legal needs” or the needs of their profession or communities. while it makes reference to a variety of other disciplines with which collaboration is critical for lawyers, especially lawyers for the poor and disenfranchised, it focuses primarily on the work of lawyers for children and parents in so-called “child welfare” or “child protection” cases because for the past five years the first author has been teaching and supervising students in an interdisciplinary child advocacy clinic, and has come to experience, firsthand, the critical relationship between meeting the goals of our clients and collaboration between and among several disciplines.19 in that context it seeks to demonstrate how all three apprenticeship pillars can be combined effectively in a single, multi-disciplinary apprenticeship experience – and contribute to the effective education of lawyers. ii. lawyering for real clients – collaboration in child advocacy every year, between 3000 and 4000 new child dependency cases are filed in the family court division of the court of common pleas of philadelphia county.20 these cases involve children who, it is alleged, have been abandoned, abused or neglected, or are otherwise without proper parental care or supervision.21 virtually all of these children come from the poorest of the poor families in our community. they and their families usually have multiple needs including those medical, psychological, educational and economic, and frequently are also dealing with issues of substance abuse. too often, the various public and private providers of the services required to assure the safety and well being of these children are under-resourced and unable to coordinate their services in the particular manner that each child needs. moreover, in many cases the 18 see lerner, using our brains, supra note 17 at 705 (arguing that pervading early law school courses with ethical examples is the best way to teach responsiveness to them); carnegie report, supra note 2, at 27–29 (incorporating apprenticeships into education allows students to synthesize what they have learned and use it professionally); coquillette, supra note 5, at 6(explaining that “elite legal apprenticeship” was actually a highly organized procedure that produced very capable lawyers). 19 for a demonstration of the clinic’s multidisciplinary approach to addressing client goals, see appendix a (detailing a case study adapted from an actual case handled by the university of pennsylvania law school interdisciplinary child advocacy clinic). 20 every state in the united states has statutes that purport to protect children from abuse and neglect and authorize the state to intervene, ultimately through the courts, to provide protective services. see generally keeping children and families safe act of 2003, pub. l. no. 108–36 (2003) (amending the child abuse prevention and treatment act, which mandates a minimum federal definition of abuse and neglect and provides funding for state programs addressing child welfare). these services include, but are not limited to, services to the children and the family with which the child lives, removal from the home and placement in foster care, escalating in some cases to termination of parental rights and adoption. each state has its own terminology for the proceedings, the state agency and the particular courts in which these proceedings originate. throughout this article we will use the terms applicable in pennsylvania, generally, and philadelphia in particular, unless otherwise noted. 21 42 pa. c.s.a. § 6302 (providing a definition for a finding of dependency). journal of clinical legal education december 2006 102 role of advocate for children has become distinctly anti-parent, exacerbating rather than reducing the tension between parent and child – both of whom need assistance from the state.22 in creating an interdisciplinary child advocacy clinic, we strove to build a model that would demonstrate a route to overcoming this dysfunctional disorganization and conflict. a. appreciating multidisciplinary collaboration we envisioned a clinical model that sought integration over fragmentation, and collaboration wherever appropriate rather than a purely adversarial stance – a model that enveloped the children and families the clinic serves in comprehensive services, which eventually would lead towards safe and timely reunification. collaboration works. the concept of collaboration, now motivating building designers to rethink spatial design in workplaces,23 enjoys unique benefits in the legal profession. yet, consistent with conventional models of legal thought and education, legal scholars traditionally do not collaborate,24 either with other lawyers or with individuals outside of the profession of law, despite the intrinsic scholarly, educational, and client-centered service benefits inherent to the practice of collaboration. 1. from intradisciplinary to interdisciplinary collaboration compared to other academic disciplines, historically, the legal academy has not been considered the collaborative type. looking at instances of co-authorship in law journals reveals a much lower rate of collaboration between lawyers than between professionals in the social sciences. for example, between 1970 and 1999 the rate of intradisciplinary collaboration between legal professionals was only fifteen percent.25 during that same period, collaboration among professionals in the social sciences reached sixty percent.26 moreover, the influence of early legal collaborations on the development of legal thought seems small compared to the influence of non-collaborative works.27 despite the discouraging trend with respect to collaboration in legal ventures, indicators suggest that productive collaboration is on the rise.28 younger scholars participate in more collaborative ventures than their more senior colleagues, suggesting that, within the discipline of law and legal scholarship, there is an emerging readiness to recognize the value of collaboration.29 similarly, scholars perceive recent collaborations to be more influential than earlier collaborations.30 teaching law and educating lawyers: closing the gap through multidisciplinary experiential learning 103 22 see, e.g., martin guggenheim, what’s wrong with children’s rights 213–306 (harvard university press 2005) [hereinafter guggenheim,children’s rights]; martin guggenheim, how children’s lawyers serve state interests, 6 nev. l. j. 805 (2006) [hereinafter guggenheim, children’s lawyers] (guggenheim argues that under the constitution, and historical and biological reality, parents have rights and children have needs. giving children legally enforceable rights as opposed to the rights of their parents, he argues, serves other adults’ interests, including those of the state actors wishing to interfere with the family in regulatory and punitive ways, but does not serve the needs of either the children or their families). 23 see eils lotozo, tearing down the walls: think outside the cubicle: workplace redesigned with interaction in mind, the philadelphia inquirer, sept. 1, 2006 (“the new trend in workplace design . . . focuses on how people collaborate and get things done.”). 24 see supra part i.b. (outlining the conventional model as a set of legal “articles of faith”). 25 see tracey e. george & chris guthrie, joining forces: the role of collaboration in the development of legal thought, 52 j. legal educ. 559, 562 (2002) (investigating the role of collaboration in legal scholarship compared to other disciplines). 26 see id. at 568 (“during the last three decades of the twentieth century . . . [s]ix out of every ten social science articles were the product of collaboration.”). 27 see id. at 569 (measuring influence by the number of times an article has been cited). 28 see id. at 572–73 (describing factors creating an increase in collaborative endeavors and their influence). 29 see id. at 576 (“collaboration is even more common among prominent younger scholars. . . .”). 30 see id. at 572 (commenting that the rate of citation for coauthored pieces is higher for more recent articles); see also ian ayres and frederick e. vars, determinants of citations to articles in elite law reviews, 29 j. legal stud. 427, 439 (2000) (finding that “[c]oauthored articles were cited more frequently than single-author pieces”). the increase in intradisciplinary collaboration offers the potential to recognize the important benefits of joint effort. intradisciplinary collaboration adds critical skills and thought processes to legal education and promotes the early professional development of emerging legal thinkers.31 collaboration can also present opportunities to reinforce faculty relationships with other legal faculty.32 additionally, collaboration with practitioners provides an occasion to bridge theory and practice.33 “finally, legal scholarship is becoming increasingly interdisciplinary. . . . collaboration with academics from other disciplines brings nonlegal scholars’ ideas and methodologies into legal scholarship, increases the likelihood that law faculty will produce empirical, interdisciplinary work, and improves the standing of legal academia in the broader academic community.”34 the increase in intradisciplinary collaboration indicates the beginning of a shift in the legal climate from the legal academic as sole actor to the legal academic as team player. this shift alone has produced benefits within the legal academy and the practice of law generally. notwithstanding the benefits attributable to the movement towards intradisciplinary collaboration within the legal academy, lawyers and legal academics have much to gain from working with professionals outside of their discipline. still, translating interdisciplinary scholarship into experiential interdisciplinary collaboration for law students has yet to take hold.35 2. interdisciplinary collaboration whatever the power – even the necessity – of the disciplines . . . in the end, questions never stop at the boundaries of a discipline. efforts to develop decisive and personal ideas of the true, the beautiful, and the good necessarily take us beyond specific disciplines and invite syntheses.36 this reality and its realization form the essence of this discussion. for the lawyer, answering the question, remedying the problem, and finding the solution are the essential ends. but the most successful lawyers will reach beyond the legal question posed by the client to more fully understand the nature and context of the problem, because doing so is essential to finding the most effective means to achieve the client’s goals. in so doing, the lawyer may have to consult and collaborate with clients and constituents, organizers and advocates, indeed, with anyone who can offer a unique and relevant perspective. assessing the effectiveness of such interdisciplinary collaboration for law students can be approached using the same metrics applied to collaborative efforts between legal professionals, by examining the impact of the collaboration on four aspects of the legal profession: the practice of the profession,37 enhancing professionalism and preparing future leaders,38 furthering legal scholarship,39 and educating future professionals.40 we submit that 31 see george and guthrie, supra note 26, at 579 (“collaboration with students provides uncommon pedagogical benefits and may spawn promising academic careers.”). 32 see id. at 579 (“collaboration with other law teachers strengthens relationships within and between law faculties.”). 33 see id. at 579(“collaboration with judges, practicing lawyers, and other nonacademics produces scholarship that reflects both theoretical and real-world insights.”). 34 id. at 578–79. 35 there is an important distinction between interdisciplinary scholarship, cross-disciplinary course registration, and multidisciplinary collaboration. this distinction exists, in part, because most academic work in law and other disciplines in which law students take courses assesses students based upon performance on written examinations and/or research papers – activities in which experiential collaboration of the sort described here is generally prohibited. 36 howard gardner, the disciplined mind: what all students should understand 147 (1999). 37 see infra part ii.a.2.a (considering interdisciplinary work as a vehicle to promote client goals). 38 see infra part ii.a.2.b (discussing interdisciplinary collaboration in the context of professional development). 39 see infra part ii.a.2.c (exploring the influence of interdisciplinary collaboration on legal scholarship). 40 see infra part ii.a.2.c (acknowledging the value of interdisciplinary work in legal education). journal of clinical legal education december 2006 104 examining these domains will demonstrate that while there are challenges to such engagements,41 the advantages attributable to interdisciplinary work support increasing the practice, particularly in the context of clinical legal education. a. collaboration facilitates “whole client”-centered service reflecting on this semester’s experience as a part of the child advocacy clinic, there is one lesson i have learned that stands out in importance and meaningfulness. the role of the child advocacy team and each of its disciplines is to ensure that children in the child welfare system are not forgotten by society and the system itself. advocating for their best interests in safety, academics, physical and mental health, and overall well-being is our mission, and as i have learned over and over, it is a critical one.42 clients, as the recipients of services provided by professionals, are situated to most clearly reap the benefits of interdisciplinary collaboration. this discussion has already alluded to a number of client benefits, but their importance warrants explicit consideration. collaboration first can enable a broader understanding of a client’s problem by clarifying the social, economic, familial, and cultural frameworks in which legal conflicts arise.43 but collaboration helps throughout the entire process of representation. despite a client’s framing of her issue in legal terms when she brings it to her attorney, many client problems involve multiple dimensions.44 collaboration provides all participants with a working knowledge of another discipline. it also sensitizes each to be alert for evidence that there are issues, or potential solutions, with respect to which another discipline might have valuable insights. this recognition of the role and potential contribution that other disciplines might make supports all members of a collaborative team to identify those aspects of a client’s situation that benefit from the involvement of another professional. by understanding the various ways in which a client’s problem may be framed through interaction with professionals who may encounter the problem in different contexts, the lawyer is better able to provide service to her client. moreover, collaboration serves to enhance communication between professionals in various disciplines, facilitating the provision of services to the client. this communication is critical to effectively serving a client because no lawyer can learn all of the extra-disciplinary knowledge necessary to find the most appropriate outcome for her client.45 learning how to communicate with the professionals who can help the client to obtain her goals, may additionally increase a client’s satisfaction with the services she receives. teaching law and educating lawyers: closing the gap through multidisciplinary experiential learning 105 41 see infra part iii (addressing the challenges of multidisciplinary collaborative work). 42 clinic social work student (2006) (journal entry, on file with author) 43 see anita weinberg and carol harding, interdisciplinary teaching and collaboration in higher education: a concept whose time has come, 14 wash. u. j.l. & pol’y 15, 19 (2004) (explaining that this factor motivated early collaborations between philosophers, economists, and lawyers). see also, david a. binder, paul bergman, susan c. price and paul r. tremblay, lawyers as counselors 2–13 (thompson west, 2004) (advocating “client-centered” lawyering because the clients both “own” and thus live with their problems and attempted solutions, and also because clients know so much more about the larger context of their lives in which the particular problem has arisen). 44 see janet weinstein, coming of age: recognizing the importance of interdisciplinary education in law practice, 74 wash. l. rev. 319, 319 (1999) (“courses in client counseling and mediation have long recognized that people are not one-dimensional and neither are their problems.”). 45 id. at 320 (“[society] can expect lawyers to know how to work with people who together have the knowledge and skills required to assist a client in [a multi-dimensional] way.”). motivated by physicians who recognized that even the best medical science cannot alone provide healthy outcomes for patients, boston medical center now employs lawyers as advocates for patients and as partners for medical professionals in their advocacy. boston medical center launches national medical legal partnership for children, business wire (apr. 10, 2006), available at http://www.csrwire.com/pressrelease.php?id=5368 (last accessed feb. 11, 2007) [hereinafter “zuckerman”] (recognizing that “lawyers and healthcare professionals working together can often prevent illness and can give sick kids a better shot at recovery”). b. collaboration develops professionalism the appeal of interdisciplinary work largely results from the idea that individuals trained within different academic frameworks each bring something unique to a multitude of problems that transcend disciplinary boundaries. in addition to client gains, from collaboration between and among professional service providers,46 the professionals within interdisciplinary engagements often benefit from each other’s knowledge, and experience. i. interdisciplinary collaboration facilitates the professional development of lawyers in the clinic . . . i learned how important it really is to rely on and work with other people. all of our clients had problems that one lawyer, no matter how gifted, could never solve alone. it took working with professionals in other fields and with each other in order to become helpful.47 lawyers see themselves as helpers much like professionals in the other traditional helping professions.48 however, the ability of the lawyer to help her client relies directly on her ability fully and correctly to define and to understand the problems of her client. “only by working with professionals from other disciplines can [she] actually begin to see all the puzzle pieces that make up the complex picture of a problem.”49 lawyers can not practice in a vacuum.50 recognizing the need for lawyers to work with other professionals in order to address client needs leads to opportunities for professional development of the lawyer. lawyers trained in interdisciplinary environments learn to seek and to implement non-traditional solutions to the “legal” problems presented by their clients.51 similarly, they learn to understand and to coordinate the efforts of multiple professionals in understanding problems and reaching such solutions.52 the lawyer working on such a team learns not to view the issue and its solution only through the lens of the law, but rather, to understand the value of the contributions from other disciplines.53 throughout, the lawyer must respect the boundaries of other professions and 46 see infra part ii.a.2.a (noting the impact on clients). 47 clinic law student (2006) (journal entry, on file with author). 48 see weinstein, supra note 45, at 306 (“law, along with medicine and the clergy, should be considered and practiced as the healing professions [sic].”); see also weinstein, supra note 45 at 324 (“the law is a ‘helping’ profession.”). 49 id. at 324 (citing james m. cooper, towards a new architecture: creative problem solving and the evolution of law, 34 cal. w. l. rev. 297, 298 (1998)). 50 see cooper, supra note 50, at 307 (“law can no longer be practiced in a vacuum.”). 51 particularly in the context of family law, the traditional adversarial system may be detrimental to a client’s interests. see, e.g., clare huntington, rights myopia in child welfare law, 53 ucla l. rev. 637 (2006). 52 see weinstein, supra note 45, at 325 (“lawyers will need to learn to be professionals at organizing, leading, coordinating, inspiring, participating in, and facilitating teams of helpers trained to approach clients’ problems from a variety of disciplinary perspectives.”); zuckerman, supra note 46 (describing collaboration as joint effort, not parallel play). 53 see weinstein, supra note 45, at 327 (“the [traditional lawyer] sees the client’s needs as legal needs and then draws upon the expertise of others to the extent required to achieve the legal goal.”). weinstein also writes, “the difference between what frequently occurs now under the name of collaboration and collaboration as viewed by experts on the group process is the teamwork spirit – it is the understanding that no one discipline has the knowledge or skills to provide single-handedly the most effective assistance to the client.” id. at 327–28. journal of clinical legal education december 2006 106 understand that these may sometimes conflict with the boundaries of legal practice.54 by understanding the unique boundaries and contributions of various stakeholders addressing the same problem, the lawyer comes closer to achieving her “helping role,” for her own client when united with others who share a common purpose.55 ii. collaboration engages professionals in broader societal issues that prepare lawyers for leadership democracy assumes that the variety of voices and perspectives of our community add to the polity’s perspectives, knowledge, and understanding, and thus to the quality of its decision-making and potential for growth. conversely, isolation and unfamiliarity tend to lead to one-dimensional thinking and stagnation. lawyers, who make up the majority of the members of congress and virtually the entire judiciary, are nationally engaged. to be effective, however, legislators, regulators and judges must engage in issues in a multitude of disciplines, including social services, health services, science, economics, engineering, public policy, and others. exposure to the perspectives, knowledge base, values and strategies of the other disciplines must be considered to improve the quality of their decision making process at every level. even outside of law-making activities, all lawyers play a unique role in a society that aims to be governed by a system of just laws that assure everyone of liberty, due process, and equal justice under law, and that support a range of other shared values. those values also are at the heart of the legal profession56 and thus must be part of the socialization that takes place in law school.57 we submit that cross-disciplinary experiences in law school, exposing the students to knowledge, perspectives, values, and problem solving approaches of nonlawyers, will, in a sense, both contextualize and “democratize” their understanding of law, the legal process and legal consequences, and so enhance their socialization to the core values of the profession. iii. collaboration offers reciprocal value to other participants the most rewarding aspect of the course from my perspective was being able to use the medical knowledge i had gained to aid children outside of a clinic setting. in theory, i had always known i could eventually apply my knowledge to other fields. now that i have had the chance to do so, i feel i am better prepared for my future profession as a pediatrician.58 when the lawyer aligns herself with others who share her purpose, these other participants in the collaborative process receive reciprocal benefits for their involvement. all participants benefit from learning about different perspectives and varied approaches to a problem that each might individually encounter teaching law and educating lawyers: closing the gap through multidisciplinary experiential learning 107 54 see id. at 327 (“collaborative work involves more, including communication skills; knowledge about other disciplines, including their range of coverage and limitations; understanding group process and team-building; selfand otherawareness, including the effects of one’s behavior on others; and leadership skills.”); see also dale l. moore, an interdisciplinary seminar on legal issues in medicine, 39 j. legal educ. 113, 115–16 (1989) (stating that joint efforts promote understanding of another discipline’s “rules, beliefs and ethical principles”); jane aiken and stephen wizner, promoting justice through interdisciplinary teaching, practice and scholarship, 11 wash u. j.l. & pol’y 63, 66–67 (2003) (arguing that lawyers, especially those working for low-income clients, can learn from the professional skills of social workers); infra part iii (addressing challenges to collaborative arrangements). 55 see karen l. tokarz, introduction, justice, ethics, and interdisciplinary teaching and practice, 14 wash. u. j.l. & pol’y 1, 6 (2004) (recognizing the role of interdisciplinary collaboration in bringing together individuals who share the same goals). 56 the american bar association defines itself as an organization that is “the national representative of the legal profession, serving the public and the profession by promoting justice, professional excellence, and respect for the law.” see american bar association, aba mission and association goals, www.abanet.org/about/goals.html (describing the organization’s missions and goals). 57 see carnegie report, supra note 2, at 11. 58 clinic medical student (2005) (journal entry, on file with author). within her profession.59 beyond these advantages, however, the legal profession can offer insight that allows professionals practicing in other disciplines to better meet their professional obligations.60 individuals from a variety of professions will inevitably interface with the legal system at some point during their careers. interdisciplinary collaborations provide a unique – often the only – opportunity for them to learn about important facets of that system.61 such relationships situate other professionals to provide the best service to their clients by applying the knowledge they are able to absorb from their interaction with other disciplinary practices. the ability of the professional to perform her helping role thus undoubtedly benefits the professional, independently of the benefits it provides to her clients. c. exposure to additional disciplines during legal training fosters important cross-disciplinary scholarship as academics in legal and other professions collaborate in practice, interdisciplinary scholarship follows. effective scholarship results from interdisciplinary collaboration that notices existing ties between the law and other disciplines. a growing body of legal literature examining connections between law and psychology seeks to capitalize on unique insights that can be drawn by coupling academics performing the empirical research traditionally reserved to the social sciences with legal theorists who respect the real influence of behavior and emotion on their legal practice.62 the growth of empirical research in the legal literature suggests a rising acceptance of this form of scholarship within the legal profession. moreover, there appears to be a corresponding increase in legal academics conducting empirical work. at the foundation of these scholarly undertakings are relationships. “some might claim that the only way to actually understand [another discipline] is to do it. . . . another way is to work closely with a colleague who has been trained in [that] discipline.”63 growth therefore remains possible with continued collaboration between groups of 59 see supra notes 42–46, and accompanying text (pp. 9–10) (recognizing the value of involving multiple disciplines in solving complex problems). 60 see, e.g., nancy j. moore, what doctors can learn from lawyers about conflicts of interest, 81 b. u. l. rev. 445, 451 (suggesting the lawyers are more apt at handling narrow conflicts of interest in practice because they have historically had more experience in managing conflicts); see also paula allen-meares, the interdisciplinary movement, 34(1) j. soc. work ed. 2, 3 (1998) (“if social workers lack knowledge on the workings of the legal system, they cannot advocate [sic] effectively on a client’s behalf, and they may unintentionally promote an adverse outcome.”); zuckerman supra note 46 (explaining that lawyers have necessary and unique skills that can help patients recover). but see infra part iii.b. (commenting that collaborative relationships themselves can also create a source of conflict of interest). 61 see allen-meares, supra note 601 (remarking that social workers will almost always have some contact with the legal system during their careers). allen-meares also notes the need for increased education on particular aspects of the legal profession, including: providing information regarding privileged communication; confidentiality and the duty to warn; client access to records; the relationship between legal and ethical issues; practice regulation, malpractice and agency and worker liability; common legal issues arising in practice; the legal rights of various client groups; areas where rights are frequently in conflict; preparation for court appearances of various kinds; and legal advocacy for nonlawyers. id. at 3 (quoting rufus lynch and edward brawley, social workers and the judicial system: looking for a better fit, 10 j. teaching in social work 77 (1994). our clinic attempts to address many of these needs in an interdisciplinary setting. 62 see jeremy a. blumenthal, law and social science in the twenty-first century, 12 s. cal. interdisc. l.j. 1, 6 (2002) (“i focus on two areas in particular: the increased use of research in cognitive psychology on biases and heuristics in decision-making by practitioners of ‘behavioral law and economics,’ and an increased focus by legal scholars on the role of emotions.”). the author notes that this trend generates some controversy. importantly, however, the author posits that fostering information flow between the professions will resolve much of the disagreement. see id. at 34 (“[w]hat can be done to increase communication, to get the best data and theories in both law and psychology journals into the courtroom, and into policy? at least two suggestions seem helpful. the first, mirroring the interdisciplinary nature of the research undertaken, is to make the researchers’ backgrounds and perspectives more strongly interdisciplinary.”). 63 shari seidman diamond, empirical marine life in legal waters: clams, dolphins, and plankton, 2002 u. ill. l. rev. 803, 818 (2002). journal of clinical legal education december 2006 108 thinkers.64 training offers ideal opportunities for exchange of ideas across disciplines; these opportunities create relationships that can form the basis of later collaborative scholarship. d. legal education offers the best opportunity to create lawyers who collaborate in most classes, working together is either forbidden or it is just not done because students are competing with one another for a top spot in the curve. . . . the clinic was undoubtedly my most difficult and most rewarding experience in law school. it was completely different than any other class. the clinic was collaborative where other classes promote individual competition. the child advocacy work also placed a premium on emotional intelligence that would be inappropriate in other coursework. these differences with the rest of my law school experience made the clinic an invaluable experience for me as a person and as an attorney.65 the benefits attaining to interdisciplinary collaboration argue for its increased use in the course of client representation. nevertheless, professional culture can erect a powerful barrier to effective interdisciplinary collaboration. in addition to concerns about professional boundaries,66 socialization within a professional culture can significantly hinder a professional’s readiness to collaborate. only when an individual can remove the narrowing professional lens through which the law school teaches her to view the world to critically evaluate her contribution to a client can she genuinely recognize that a client’s problem extends beyond the domain of her profession.67 yet, challenging subjective notions of what one’s profession is and is not creates uneasiness. the beginnings of a sense of professional culture occur during legal training. throughout this experience, students develop perceptions about the legal profession and expectations regarding appropriate responses to issues framed as legal problems.68 these habits of mind are learned implicitly, rather than by overt teaching and learning; yet, they are learned with great power.69 when later faced with a difficult situation, these former students, who are now lawyers, will naturally revert to learned perceptions and expectations to predict outcomes and make choices about potential solutions to the situation.70 because “students learn, implicitly, and with powerful emotional stakes, not to ask for support [from] others in solving legal problems,”71 students have traditionally become practicing lawyers without learning how to collaborate.72 teaching law and educating lawyers: closing the gap through multidisciplinary experiential learning 109 64 see id. at 817 (“it is no accident that many of the traditionally trained legal academics who have contributed most heavily to the empirical literature have done so through collaboration.”) 65 clinic law student (2006) (journal entry, on file with author). 66 see infra part iii (dealing with challenges to multidisciplinary arrangements). 67 see weinberg and harding, supra note 44, at 29–34. 68 see alan m. lerner, law & lawyering in the workplace: building better lawyers by teaching students to exercise critical judgment as creative problem solvers, 32 akron l. rev. 107, 123–25 (1999) (hereinafter “lerner, law & lawyering in the workplace”) (describing a problem-solving course given as a first year elective, in which, after only one semester of law school, every student in the class, when faced with the earliest identification of a potential claim by one person, assumed that the case was already in litigation). 69 id..; see also lerner, using our brains, supra note 11, at 679 (arguing that learned mental habits have an enduring effect); lesnick, infinity in a grain of sand, supra note 16, at 1158 (“[m]uch of what we teach is taught implicitly.”); carnegie report, supra note 2, at 5 (“the process of enabling students to ‘think like lawyers’ takes place not only in a compressed period of time but primarily through the medium of a single form of teaching: the case-dialogue method. . . . the consequence is a striking conformity in outlook and habits of thought among legal graduates.”). 70 see lerner, using our brains, supra note 11, at 679 (advancing the idea that law students and lawyers will “downshift” and revert to “tried and true”, but often incomplete, approaches to problems under stress). 71 id. at 698___. 72 id. at 698 (“most law students learn the skills of group process and collaboration only by chance.”). to create lawyers who are ready for interdisciplinary collaboration, exposure to collaboration must begin during legal training. during law school, students form the foundation of their view of their profession and themselves as professionals. throughout the law school experience, these future lawyers become emotionally committed to what they believe necessary to becoming lawyers. therefore, law students are most ready and best suited to adapt their behaviors towards the legal profession as well as other professions with which they might collaborate. accepting that collaboration must be taught during professional training, the next logical question is how collaboration should be taught and learned. there are many ways to structure an interdisciplinary experience that may create more or less uneasiness among participants. advocating also for a greater emphasis on interdisciplinary learning, weinberg and harding posit three general models for interdisciplinary education: (1) the ‘one discipline studying another discipline model,’73 (2) the ‘representative model’; and (3) the ‘team model.’74 in the ‘one discipline’ model, law students learn about another discipline by studying that discipline in their traditional “home” environment and using their traditional methods of study. in the ‘representative model,’ mixing occurs at the supervisory level, with professionals from an unrelated discipline sharing their knowledge and experience with another discipline, for example a law professor and an economics professor jointly teaching antitrust law. finally, in the ‘team’ model, mixing of disciplines occurs at the level of supervisors and students with a course enrolling students from various disciplines to learn from the knowledge and expertise of faculty from various disciplines. weinberg and harding describe this model as “interdisciplinary teams of faculty from diverse disciplines planning and teaching a course enrolled in by students from diverse disciplines and professions,”75 for example a law professor and a psychologist jointly teaching mental health law in a course in which both law and psychology students are enrolled. we take the team model one step further to an ‘experientially integrated team’ approach. the integration of planning and practice horizontally between clinic participants, as well as vertically between clinic faculty and students, adds a critical layer of implicit learning for students to the more traditional, but solely vertical, interdisciplinary learning approach which occurs in the ‘team model’. we think that this integrated team model permits students to more fully learn both the substantive area of their clinical practice and the process of cross-disciplinary collaboration. effective educational models for collaboration will address key elements of multidisciplinary collaboration–understanding professionalism, creating opportunities to provide whole client centered services, and engaging students of the various professions in educational endeavors that compel them to recognize the scholarly contributions of another discipline. clinical law programs are ideally situated to accomplish each goal, and are therefore understandably a common forum for interdisciplinary training in law school.76 b. designing an effective clinical curriculum since 2002, the university of pennsylvania law school has included among its live-client clinical offerings an interdisciplinary child advocacy clinic, in which the first author has been the law school’s faculty, and 73 within our institution, the ‘one discipline studying another discipline’ model is the closest that most students get to an interdisciplinary education. students may take law school courses taught by an instructor from a different discipline, or may take courses outside of their primary school, which are taught by instructors in whatever school the course is in. still, in either approach, the student generally studies one discipline; we propose a model that differs from this approach. 74 see weinberg and harding, supra note 44, at 37–39. 75 id. at 37 76 amsterdam, supra note 3, at 612. journal of clinical legal education december 2006 110 during one semester of which the second author was a student. we do not argue that this is the only model for interdisciplinary professional education, or that it is, necessarily, the best. for the reasons set forth below, however, we believe that it works well, and satisfies all of the criteria for effective collaboration across disciplines in law, medical, and social work professional education. 1 establishing a child advocacy focus [e]xperiences in the clinic [] can be summed up in one word – teamwork. . . . working on a team in this context is not only helpful, but almost necessary, and this is for two reasons. first of all, it is incredibly helpful to have more than one person available to assist in the investigation portion of the case . . . . there is another reason why working on a team in this context is so effective, besides the almost inherent efficiency and helpfulness of having more than one person focused on the case. the reason is that, in a situation such as this, where the stakes are so high and the clients are so vulnerable, it is better for everyone involved if the members of the team focus on the aspect of the case where they are the strongest.77 from antitrust law to workers compensation law, almost every problem a lawyer encounters includes a dimension that extends beyond the boundaries of the legal profession.78 in fact, the need to understand subject matter outside of the strict interpretation of the law drives most lawyers towards specialization. while new lawyers may sample from a variety of legal specialties, seasoned practitioners know that it is more efficient to specialize. why is this so? because for the client and the lawyer, law does not exist in a vacuum. in every legal problem a lawyer approaches she learns how the law applies to a specific set of facts arising out of the particular client’s context; to do so effectively, she must understand those facts, and their relationships to each other, to the clients, and to the context in which they arise. traditionally, lawyers learn such factual context and relationships from contacts with their clients and with experts in the relevant fields. the lawyer’s investment of time and energy in gaining facility with a practice area, and the various players within that practice area, creates an incentive for her to continue practicing within that area. at the same time, the lawyer must and does work with experts from disciplines outside the law such as medicine, social work, economics, mental health, finance, environmental science, etc. yet, even with the need to rely on the expertise of non-lawyer professionals in practice, most lawyers do not frequently collaborate in the most valuable sense of the word – they see little need, and they have never been taught how to really collaborate. instead, they alone choose when, how and to what extent to communicate with non-lawyer experts. legal clinics in a variety of disciplines are poised to teach collaboration. law schools throughout the united states house multidisciplinary clinics in environmental law,79 estate law,80 disability law,81 mental health teaching law and educating lawyers: closing the gap through multidisciplinary experiential learning 111 77 clinic law student (2006) (journal entry, on file with author). 78 see generally areeda, supra note 3 (acknowledging the prevalence of thought about interdisciplinary work in the 1980s and earlier). 79 see, e.g., washington university law interdisciplinary environmental clinic, http://law.wustl.edu/intenv/ (partnering “student attorneys” with “student consultants” in several graduate studies to provide assistance on environmental and community health concerns) (last visited jan. 28, 2007). 80 see, e.g., the camp center for estate planning, university of florida law school, http://www.law.ufl.edu/centers/ (offering estate planning services in conjunction with “the graduate tax program and the uf institute for learning in retirement”) (last visited jan. 28, 2007). 81 see, e.g., disability rights law clinic, american washington college of law at american university, http://www.wcl.american.edu/clinical/disability.cfm (representing clients with mental and physical disabilities) (last visited jan. 28, 2007). law,82 education law,83 and beyond. among these options, our choice to create an interdisciplinary child advocacy clinic as the locus of teaching collaboration was guided by several principles: (1) law school clinical education offers a unique opportunity to perform a public service; (2) the stakes in child advocacy cases are tremendously high and demand a rigorous commitment to the whole client, with students engaging both cognitively and emotionally in their work; (3) emotional and cognitive engagement fosters habits that can help future lawyers manage the complicated ethical and tactical decisions expected of them in practice;84 (4) although engaged in a litigation context, the child advocate spends the majority of her time planning for a child’s future; and (5) lawyers involved in planning for their clients’ future have a greater need for, and are therefore more likely to engage in, collaboration than lawyers who litigate past matters.85 starting from these principles, we decided to focus on the representation of children involved in the dependency system in philadelphia. there are, of course, countless worthy endeavors that benefit the public interest, and a number of them specifically involve advocacy for children. still, it is undeniable that advocacy for abused and neglected children is one of the areas of greatest need. it is also undeniable that even in such clearly legal proceedings, interdisciplinary involvement is critical.86 2. who to involve: identifying key players in child advocacy the first step in creating an effective interdisciplinary collaboration is to identify the interested parties. in the child advocate’s ideal world, she would have countless resources available to help her client – lawyers, social workers, educators, mental health professionals, pediatricians, and policy makers all in some way influence the care and disposition of children in the dependency system. aspiring to truly serve “the best interests of the child” might require the involvement of professionals in each of these disciplines to 82 see, e.g., mental health law clinic, university of virginia school of law, http://www.law.virginia.edu/html/ academics/clinics.htm#11 (permitting students to gain experience representing mentally ill or mentally disabled clients in negotiations, administrative hearings and court proceedings) (last visited jan. 28, 2007). 83 see e.g., children’s education law clinic, duke law school, http://www.law.duke.edu/magazine/2006spring/ features/educationlawclinic.html (focusing law students on advocacy in school-related special education and disciplinary matters) (last visited jan. 28, 2007). 84 see supra notes 11 and 17 and accompanying text (describing the importance of considering how the brain processes and implements new information when designing educational programs). 85 winning an adversarial encounter for a client concerning a fact pattern that happened in the past, and the legal implications of these facts, may, but need not, require consideration of the longer-term implications for the client in non-legal areas. whenever planning for the future is at issue, however, the client’s relationships with others are relevant, perhaps critical. but the process for building and maintaining relationships is not necessarily taught or learned in traditional legal curricula. 86 see, e.g., pew commission on children in foster care, fostering the future: safety, permanence and well-being for children in foster care, 17–18, 40–41 (2004) (recommending that judges and attorneys who are involved in child welfare cases receive interdisciplinary training in order to be able to understand and effectively respond to issues of child abuse and neglect). child welfare systems are beginning to recognize the value of interdisciplinary work. for example, as a result of the consent decree in kenny a. v. purdue, no. 1:02 cv 1686 – mhs (nd ga. 2005), the fulton workload study asked our clinic to review the aba/nacc standards for attorneys representing children in juvenile court, which are the established standards for the office of child advocate created pursuant to the consent decree, and identifying where and how social work partners for the lawyers can improve the quality of legal representation assigned to lawyers for children. the review was conducted by the first author and our clinic social work supervisor, diane smith-hoban, msw. other areas that demand interdisciplinary attention include domestic violence, disability law, elder law, environmental law, housing, indian land claims, mental health law, etc. journal of clinical legal education december 2006 112 effectively advocate for a child. but this aspirational world is different from the one in which we – as lawyers, social workers, educators, mental health professionals, pediatricians, and policy makers – individually conduct our every day practices for the benefit of children. as an initial matter, resource limitations, both financial and otherwise, inevitably force choices about who to include when designing a clinic with an interdisciplinary focus. financial considerations will undoubtedly limit the number of professionals a single clinical program can include. beyond this, however, as clinical educators, we ought to consider the pedagogical value that additional faculty will offer. we built a clinical model that was useful, manageable for both faculty and students, and that would not interfere with providing very high quality services to the clients. our goal was to include a faculty diverse enough that students could benefit from learning about the ways that different professionals think about the problems faced by their clients. however, we also wanted to create consistency in teaching, such that students learned enough from a core faculty member in their respective fields to understand how they as professional students could begin to work effectively for their clients. additionally, as a practical matter, with the addition of each faculty member, we would decrease the possibility that all of the faculty would be present at a given seminar. this cross-disciplinary interaction and discussion is precisely what we sought for clinic students. because students would be the “front line” service providers, we had to avoid so inundating them with material from outside their home discipline that they would be unable to integrate it into a case plan and execute that plan in the time frames provided by the cases and the academic calendar. the combination of faculty members we arrived at has facilitated these goals. we ultimately designed a clinic supervised by a lawyer, a pediatrician with expertise in medical issues of child maltreatment, and a social worker with extensive experience working with children and families in the child welfare system. this combination ensured that our students would have access to professionals who had encountered and cared for children with issues similar to those encountered by our clients. through the combined experience of these supervisors, our students are able to discern and respond to legal, medical, educational, and social concerns in their client’s cases. concurrently, we use consultation with other professions both in the seminar and as needed in case work to ensure that we can address the full spectrum of our client’s needs.87 students in the clinic gain more than exposure to interdisciplinary teachers. we envisioned a clinical model that would promote collaboration at every level. law students are joined by a social work student and a medical student to create child advocacy teams for each case. at every step of the way, then, students are able to discuss, plan, challenge, and create solutions with other students who bring their distinct educational training and perspective to bear on a case. while the students each come with a different approach to clients or patients, in another sense they are all “naïve,” at least in the other disciplines, and this facilitates tremendous learning opportunities. the cases belong to each of the students; each student’s input guides the planning and execution of each intervention. they need each other. at a fundamental level, this need and availability encourages learning the essential skills of collaboration by doing.88 teaching law and educating lawyers: closing the gap through multidisciplinary experiential learning 113 87 consultation and teaching by additional professionals who play a role in the advocacy for children in the dependency system, including mental health professionals and educators, provides us with more detailed knowledge of issues that are detected by our law, social work and medical students and confirmed by our attorney, social work, and pediatric faculty who provide ongoing supervision of students. see infra part ii.c (outlining the didactic portion of the seminar); see also weinberg and harding, supra note 44, and accompanying text (referring to this type of crossdisciplinary instruction as the representative model). 88 see lerner, using our brains, supra note 11, at 665 (learning that has a strong emotional content creates strong neural connections and sources for recall, thus making it lastingly effective and useful). 3. what to teach while the primary mechanism through which students in the clinic gain experience is fieldwork,89 students also meet for didactic seminars twice weekly. through these sessions, students learn the value of involving numerous disciplines while planning for their clients. the seminar component integrates three distinct modes of instruction: specific subject-matter expertise, skills-based teaching, and personal and professional reflection. all clinic faculty and students attend each seminar meeting and participate both in the teaching and discussion on each topic.90 thus, students regularly receive instruction in the knowledge base, strategies and values of three professions: social work, law, and medicine, focused on their application within the child welfare system. additionally, we invite guest speakers with particular expertise in mental health, adolescent health, and early childhood development and intervention to supplement the more generalized knowledge and experience of the core faculty. the variety of instructors ensures that students receive exposure to various ways in which the same problem might be addressed depending on where a client or patient first interfaces with a professional working in the child welfare system. it also ensures that law students at least implicitly recognize that their client’s “legal” problem can present in a variety of settings, and benefit from a variety of approaches. a. keeping your eye on the ball: expanding perspectives, understanding oneself, limiting judgment of others. child advocacy readily lends itself to strong emotions, and to making harsh judgments about parents, child protection workers, service providers, other advocates, and “the system,” as well. after all, these are innocent children; we are their advocates and protectors, and they need us because the other adults and the system have failed to provide what our clients need! we do not seek to prevent or eliminate this emotional identification with our clients. however, we do work hard to keep our students focused on the goals for the clients, and to understand that all of those other folks, beginning with our clients’ parents, are more likely to provide the short-term and long-term needs of our clients that we are. indeed, an essential aspect of our work is to get those others to do theirs. important as they are, the only services that we can provide for our clients are counseling and advocacy. we know, and our students need to learn, that although we need to be ready, willing and able to employ our most effective litigation tools, cooperation may be more likely to get the services our clients need in the short run, while retaining the relationships they need in the long run, than will a purely adversarial stance. at the same time, especially with children of middle school and high school age, counseling them about their situation, their goals, their options, the relationship between their present choices and behaviors and their future, etc., is a critical aspect of our work as their advocates. counseling a disappointed, sad, frustrated, victimized, angry, often troubled youth is an emotionally challenging experience, especially for students. often they have had experiences in their own lives that are returned to consciousness when they are engrossed in their clients’ situations. alternatively, they might find that their clients’ experiences seem completely foreign and beyond their comprehension. in either case, emotions run high and strongly impact their role as counselors and advocates. this emotional “heat” and tension provides both the necessity and the opportunity to begin teaching our students about the role that their own values and emotions play in their perception and response to 89 see infra ii.b.4 (describing the clinic fieldwork component). 90 our clinic is fortunate to have all participating schools located in close proximity. while all campuses will not have this arrangement, the possibility for interdisciplinary learning and collaboration remains. see generally, e.g., paula e. berg, using distance learning to enhance crosslisted interdisciplinary law school courses, 29 rutgers computer & tech. l.j. 33 (2003) (suggesting alternative mechanisms by which crossdisciplinary training might be accomplished). journal of clinical legal education december 2006 114 situations which arise in their cases, and in counseling our clients.91 we address these issues beginning with the first class, and incorporate them pervasively throughout the semester in both didactic classes and in case discussions, culminating in a class on counseling alternatively known as “self awareness in advocacy.” because this topic is so foreign to traditional legal education,92 and yet so important, we try to mix the serious discussion with exercises that are fun for the students to assure maximum engagement. b. broad-based subject matter knowledge students begin their experience in the seminar component by directly confronting the potential overlap of various disciplines which plan for the future of children in the dependency system. in the first class, before any statutes or cases are assigned, we ask them to read material that both discusses the nature and harm to children resulting from abuse and neglect,93 and critiques of the child welfare system.94 we then give them problems taken from actual cases to discuss whether they think there has been abuse or neglect, and what, if anything, the state should do in response. they explore specifically how differences in the legal and medical definitions of abuse and neglect affect how these professionals perceive and respond to the problem. by framing the class in this way, students learn at the start to think about the fact that they come to the issues with values and expectations, not as blank tablets, and that they need to consider these “legal problems” as “medical problems,” “social problems” or even through other lenses. through this discussion, students also start to gain the substantive knowledge they will apply to their cases. in the remaining seminar sessions, students gain exposure to several aspects of the dependency system, including the process for reporting and responding to allegations of abuse and neglect, the legal framework affecting children who are involved in the welfare system, interventions available to assist children and families in the welfare system, and the interplay between the rights of children and parents in dependency proceedings. this somewhat in-depth instruction in child welfare law prepares students to competently represent their clients. students additionally receive substantive instruction from professionals involved in providing nonlegal services to their clients. for example, clinic students spend one session with the clinic social worker to discuss generally the wide range of community resources applicable to children and families in the child welfare system, and the case-specific indicators for different services. a child development expert describes early childhood development and discusses early intervention programs available to children at high risk for future developmental delays. a mental health professional provides insight into the assessment and evaluation of mental health issues in students’ cases. c. skills-based instruction a skills-based component complements the substantive child welfare topics and includes sessions dedicated to skills traditionally required of advocates within the legal system. the skills sessions begin with general case planning considerations and then move to a more detailed examination of individual skills essential to successful case management. students first learn the basics of legal interviewing; these skills are then refined through sessions specifically addressing developmentally appropriate techniques for communicating with child victims of physical and sexual abuse. the experience of a specialist in adolescent medicine contributes to a separate session considering communication with adolescent clients. students learn further about preparing cases and examining witnesses through a simulation in which law students represent either teaching law and educating lawyers: closing the gap through multidisciplinary experiential learning 115 91 see lerner, , supra, note 11, at 665 (discussing how our emotions and values affect our perceptions and judgments). 92 see discussion at pp. 7–12, supra. 93 vincent j. felitti, et al, relationship of childhood abuse and household dysfunction to many of the leading causes of death in adults, 14 am. j. prev. med. 245 (1998). 94 dorothy roberts, shattered bonds: the color of child welfare (basic civitas books, 2001). the parent or the state in a proceeding in which a parent, opposed by the state, seeks to have her name removed from the state registry of care givers who have abused or neglected children in their care.95 each student conducts a direct and a cross examination of an expert medical witness and social worker fact witness. the experience provides students with an opportunity to distinguish the types of inquiries that can be directed at these two types of witnesses. it also encourages law students to think about how best to formulate questions that will help experts communicate technical information in a manner understandable to those who must rely on it for judicial decision making. the social work and medical students who serve as witnesses also gain insight from the experience. they spend time with the law students prior to testifying and learn how to effectively communicate their knowledge to a judge and jury. as preparation for this experience, students spend time in seminar sessions thinking about the differences in language and communication techniques that different professionals bring to a courtroom. these sessions highlight the crucial importance for the lawyer to learn effective ways to communicate with professionals from various disciplines in order to carry out even one of the most basic courtroom lawyering tasks.96 d. personal and professional reflection: from micro to macro the bridge connecting the case work experience and the subject matter seminars is personal and professional reflection. throughout the semester, all students reflect on their personal involvement in their cases through weekly case rounds. these rounds, fashioned similarly to the rounds one might encounter on a hospital floor, require students to present a case and then invite discussion among all of the clinic participants in resolving difficult situations. students sometimes face insurmountable challenges in their cases; however, the most rewarding successes often come from suggestions raised in the cross-disciplinary discussion that occurs during case rounds. here, there are two levels of collaboration at play, that between and among student members of each advocacy team, and that between and among the faculty members from the various disciplines. the combination of the experience of the faculty and the capacity for interdisciplinary work within individual teams provides for unique and effective solutions for clients. while each student is assigned only two or three cases, their opportunity to consider and reflect on the variety of challenges faced by children and families caught up in the child welfare system is multiplied by the shared experiences of their colleagues in these case rounds and in daily conversations in the student work rooms.97 the focus on the students’ fieldwork in terms of providing service for their individual clients/patients is critical for the students’ learning. however, towards the end of the semester all students are asked to take a step back from the “firing line,” put their professional experiences and role into a larger context, and to consider their efforts in terms of policy proposals that address how to change system-wide problems they encounter in their casework. this exposure encourages reflection about how the work of different disciplines comes together at many levels to create the environment in which each professional practices. 95 we include the simulation in the course to ensure that all law students learn the skills of preparing and examining both fact and expert witnesses, and to ensure that medical students and social work students involved in the clinic understand their potential influence when called to act as a witness in their professional capacity. some students will gain this experience through their case work. however, because cases will inconsistently require expert testimony, the simulation guarantees exposure for all students. 96 we employ a variety of media to introduce potential communication problems between lawyers and witnesses. students observe video of lawyers conducting interviews of expert witnesses. they also participate in a exercise using children’s building blocks in which one student (the “witness”) constructs a structure and another student (the “lawyer”) must then lead a third party who cannot see it (the “fact finder”) to recreate the structure from information obtained through questioning by the “lawyer” of the “witness”. the exercise demonstrates in a tangible way that only by effective communication can the information in one person’s mind transfer an accurate picture of a set of facts into another person’s mind. 97 in addition, the students have opportunities for reflection through weekly meetings with their supervisors, and journaling. see parts 4. b and c., infra, pp. 23–24. journal of clinical legal education december 2006 116 at the same time, it highlights the complexity of the “system” and the breadth of cross-disciplinary considerations that need to be addressed in forging lasting improvement. 4. a cross-disciplinary fieldwork experience case rounds are in a sense the bridge between the didactic and experiential components of the child advocacy clinic. outside of the seminar sessions, students spend the majority of their time involved in direct case work for their clients. this fieldwork component creates the greatest opportunity for collaborative work. our clinic receives case appointments through the family division of the philadelphia court of common pleas, the court of general jurisdiction of first instance in pennsylvania. we receive our appointment at the time a dependency petition is filed, or when a hearing on an emergency restraining order is about to be heard.98 although we recognize that cases vary in their complexity,99 the focus of our clinic remains on teaching the process of case planning and management, creative problem solving for our clients, and collaboration skills; we believe every case provides challenges in each of these areas. because we expect all students to complete a full-case work up whenever they receive a case in preparation for their client’s court hearing, we do not restrict the type of cases we are assigned. once accepted, each case is assigned to a student team. student teams are comprised of a law student, a social work student and a medical student. each law student is assigned a caseload of two or three cases, permitting her to represent on average two to four children in dependency proceedings. most cases involve social work and medical issues. one social work student and usually one medical student handle these issues on cases. all aspects of case management are carried out using the team approach. students therefore gain an interdisciplinary experience most directly through their case work. journaling and cross-disciplinary supervision reinforces the lessons learned through fieldwork.100 a. case investigation and management draws on the various professions students begin their casework with a multidisciplinary framework in mind. understanding that they need information from a variety of individuals involved in their client’s lives in order to provide the most effective client representation, students begin by information-gathering. during the initial stages of this process, client-teams will make visits to a client’s home and, if applicable, to a client’s school. consider one law student’s impression of her first home visit. the visit that scares me is the visit to mom’s home. for some reason, i have a picture of the place in my head that i can’t seem to get rid of, and the thought of going there is slightly terrifying. not to sound like i 117 teaching law and educating lawyers: closing the gap through multidisciplinary experiential learning 98 when a dependency petition is filed in the court, a hearing will follow within ten days to determine whether the child is dependent, and if so, whether supervision in the home or removal and placement is necessary to assure the child’s health, safety and well-being. experience has demonstrated that the allegations of the petition are frequently incomplete or inaccurate. therefore, assignment of a case calls on the advocacy team to investigate and develop a preliminary case plan and hearing plan within a relatively short time. thus, every dependency petition will create opportunities for a case investigation and court exposure for students. 99 the only conditions we place on cases that we will accept are: (1) timing: we prefer to have no case go to a hearing during the first two weeks of the semester, and to have all of the cases assigned before the mid-point of the semester so that the students have ample opportunity to work on them. (2) we prefer to have cases with three or fewer children because we want each law student to handle two cases as the only law student on the case and we have found that for inexperienced students, families with more than three children involved are so complex as to jeopardize their ability to provide high-quality representation. the level of complexity and propensity for future learning associated with cases does factor into our decision-making regarding case retention at the end of the semester. see infra ii.b.4.a (outlining how students make decisions regarding end-ofsemester case disposition). 100 see discussion infra, pp. 37–40. believe in auras and vibes and other new-age ridiculousness, but i think i’m scared of the house. i think it was [someone] saying that the walls of the home are punched out that did it. because i couldn’t think about the walls being punched out without imagining what would have happened that would result in the walls being punched out. and now i have this scene in my head that involves a very angry person yelling and punching out walls and generally being out of control. and the fact that i know that there are two young kids in this house right this second as i type this bothers me to no end.101 while the law student has an appropriate visceral reaction to the situation she encountered – one of many situations that can make us painfully aware of the vulnerability of our young clients – this initial emotional reaction sets up a unique opportunity to learn. her powerful response stimulates a strong emotional memory for this occurrence.102 although the law student may have felt slightly overwhelmed by her own reaction to the situation in her client’s life, and as a result, unable to completely evaluate the home situation, the social worker’s experience in communication and assessment of family dynamics makes possible a more complete and informed evaluation of the child’s living and school situations.103 when she later recalls this experience, she will be more likely to remember how the interdisciplinary framework provided strong support to ensure that she was able to perform at a high level for her client. thus, while the law student may specifically learn from this experience the importance of collaborative work, our client’s needs are also fully met by utilizing the social worker’s particular readiness to assess and respond to the situation appropriately.104 in addition to conducting home visits, our students obtain and review the file from the child protective services agency, and our client’s school and medical records. our social worker again plays an important role by following up on deficiencies noted in the school record and helping students better understand the agency records. the role of the medical student-law student collaboration, however, becomes particularly relevant at this stage. the medical student facilitates a basic understanding of the client’s medical, developmental and mental health record, but perhaps more importantly in the cases we face, where neglect is common, the medical student’s knowledge of appropriate preventive and reactive care helps them to determine whether the child has had appropriate health care, and, if not, what is needed and with what level of urgency to ensure the child’s well-being. this knowledge directly impacts the law student’s assessment of the adequacy of parenting in making a disposition recommendation at a court hearing; it also 101 clinic law student (2003) (journal entry, on file with author). 102 see lerner, using our brains, supra note 11, at 665 (describing how the brain creates memories, from patterns of neuronal connections comprised of all of the elements of the experience, and that the emotional aspect is a particularly powerful facet of most experiences). 103 students have directly acknowledged the necessity of a multidisciplinary approach to gathering information. one law student commented: when we visited [our clients] at their schools, i had no idea how to explain to them what was going on, how to introduce myself, or even so much how to relate to them on each of their levels. thankfully, i was accompanied by [our social work student], whose training in social work has included a good deal of direct contact with children of various ages who are in unstable home environments. clinic law student (2005) (journal entry, on file with author). 104 students are always accompanied on home visits by at least one supervisor. journal of clinical legal education december 2006 118 aids the student in making requests for the court to order needed interventions.105 the knowledge that a medical student or social worker is able to obtain can significantly impact the direction and management of a case. in some cases, the medical student becomes instrumental in formulating a plan for our client after a decision regarding adjudication has been made.106 clients who are adjudicated dependent secondary to neglect often have a number of medical problems that require attention.107 however, our law students consistently report difficulty in communicating with professionals who are unaccustomed to, or fearful of talking with lawyers. one student questioned why this is so: “why is it so hard to schedule doctor’s appointments? why is it so hard to get people to help you? why, only after [our medical student] said she had a pager, did we get anywhere?”108 the answer lies in one of the original motivations for designing our clinic. because doctors and lawyers are educated in a manner which tends to isolate them from the other profession, neither learns how to trust or communicate comfortably with members of the other discipline – and so they don’t. our clinic addresses that divide by putting the students together in close, mutually dependent, but safe environments with experienced supervisors and, only in that context, making available to our clients the resources of both disciplines. although the cases themselves may continue well beyond a year or even two years,109 the educational value of these cases is not linear. the majority of the planning and decision making done by advocates in child welfare cases takes place either in the first six months after the case comes to court, or much later when decisions with respect to reunification or perhaps termination of parental rights must be made during permanency planning. to enable us to take new cases at the beginning of each semester for our new students, we arranged, with the court’s permission, to transfer some or all of our cases to a local non profit child advocacy teaching law and educating lawyers: closing the gap through multidisciplinary experiential learning 119 105 the legal determination of dependency rests at least partially on whether the child’s health is at risk as a result of a parent’s action or inaction. see 42 pa. c.s.a. § 6302 (defining a dependent child as one who “(1) is without proper parental care or control . . . a determination that there is lack of proper parental care or control may be based upon evidence of conduct by the parent . . . that places the health, safety or welfare of the child at risk . . . .”) (emphasis added). the medical student’s knowledge permits her to assess not only problems documented in the medical record, but additionally, to know what should be but is not in the record, which a law student or lawyer alone would not be able to discern. because the law defines dependency in this way, this kind of determination is necessary in all cases in which a dependency petition has been filed. the consideration that all cases will require some medical assessment regarding the health of the child plays a role in the decision that an effective collaboration in this area will involve a medical professional. see supra part ii.b (discussing the factors prompting a choice of which professionals to involve in a collaboration). we discussed at length above that lawyers may want to involve other professionals in their work with their clients because the problem itself may be only partially legal in nature, but also a social problem, medical problem, etc. when designing a collaboration in any field of law, considerable attention should arguably also be paid to whether the legal aspects of the case itself require the expertise of another profession. 106 our clinic handled one case in which children were temporarily removed from their mother’s care because her noncompliance with ordered medication for a communicable disease put her children at risk for acquiring that disease. the medical student’s ability to understand the significance of apparently conflicting medical reports and obtain the cooperation of a doctor from the department of public health made a critical difference in the outcome of the case, and in the health of the children (case details on file with author). 107 even where the primary dependency issue is physical abuse, truancy, or sexual abuse, a large percentage of the cases involve some medical issue. numerous studies have documented the significantly disproportionate health care needs of children entering foster care or already in foster care. see, e.g., r. chernoff et. al. assessing the health status of children entering foster care, 93 pediatrics 594 (1994). 108 clinic law student (2006) (journal entry, on file with author). 109 the adoption and safe families act (asfa), passed in 1997, requires that all children in care have a permanency plan in place within twelve months of placement. when the plan is reunification and a child has been in care consecutively for fifteen of the past twenty-two months, asfa requires that the case goal change from reunification to termination of parental rights and adoption unless one of several discrete exceptions is met. the change in policy reflects recognition that for a child in care, long-term stability requires a permanent living situation. see adoption and safe families act, pub. l. 105–89 (1997). organization at the end of each school term.110 this process itself provides yet another educational opportunity. as each semester draws to a close, the clinic must decide which cases to retain for the following semester and which to transfer to the outside agency. all students prepare memoranda detailing their perspective on whether to keep their cases. during an extended case rounds session,111 each student is required to recommend whether we should retain the case or transfer it to the support center, and then defend that recommendation. factors in each discipline play a role in the final decision. as educators, we pay attention to the educational value of keeping the case. we also, however, take into account any pressing legal, social, or medical issues. to the extent that our relationship with the client will facilitate addressing any of these needs, we will consider keeping the case. especially when the clients are pre-teen or adolescents with whom we have developed close relationships, that relationship, set against the background of the client’s maltreatment history, requires that we consider the possible impact of seeming to abandon the child at the semester’s end. this exercise permits students to consider their duties of loyalty and competence to their clients, taking into account the particular expertise afforded by the clinic’s multidisciplinary resources. when the client is one with whom the student has developed a strong bond, or the client has suffered particularly severe maltreatment, it is common for the student to want us to keep the case so that she can feel comfortable with the quality of advocacy that “her” client will get. these expressions of students’ connections with, loyalty to and responsibility for clients demonstrate as little else can the emotional power of the student’s experience, and show that they have begun to internalize the highest meaning of being a zealous advocate for one’s client. b. journaling reinforces the multidisciplinary experience especially in work that is regularly intellectually challenging and emotionally draining, it is important to be able to identify and to accommodate our reactions. . . . doing this is easier because, in the midst of a professional educational culture that prizes individual accomplishment, in the context of our casework, we don’t have to do it alone .112 throughout their fieldwork, students comment on their reactions to their cases in weekly journals. journaling serves two primary purposes. first, journaling creates a unique opportunity for students to manage reactions to the work that they are doing – work which is highly stressful, time demanding, mentally challenging, and emotionally draining.113 describing these very powerful emotions through writing permits students to better contemplate their feelings and responses. these emotional reactions, so often overlooked in traditional teaching models, in fact help to solidify the “habits of mind” that these to-be lawyers will revert to in their future practice.114 students review their journals, and therefore their reactions, with clinic faculty during weekly supervisory meetings. this review provides another opportunity for learning from the experience and reinforces the student’s impression of the experience.115 110 the agency – the support center for child advocates – has been in business for thirty years and is very highly respected for the quality of its advocacy for children. 111 see supra part ii.b.3 (outlining the case rounds component of the seminar). 112 clinic law student (2006) (journal entry, on file with author). 113 journaling has been described as an important tool in professional development. see, e.g., john c. bean, engaging ideas: the professor’s guide to integrating writing critical thinking, and active learning in the classroom 106–109 (2001); james r. elkins, writing our lives: making introspective writing a part of legal education, 29 willamette l. rev. 45 (1993). 114 see lerner, using our brains, supra note 11, at 655, 671 (noting the importance of emotional thought in forming habits of mind). 115 originally, faculty included journaling as a tool for the faculty to be able to assess whether students were having difficulty with the emotional experiences of their casework and intervene where necessary. that has happened a number of times. yet, it appears the journaling itself frequently provides the students with an opportunity to both express and engage their emotions in constructive ways. see text accompanying note 113, supra. journal of clinical legal education december 2006 120 second, journaling motivates students to reflect systematically on their casework. student journals detail the most complicated aspects of cases and outline potential approaches to resolving these problems. often, we find students commenting on the importance of involving multiple players in these approaches. students consistently reveal a deep appreciation for the interdisciplinary nature of their fieldwork in their writings. one of the greatest benefits of collaborative work is that it allows us to be able to need and give different things at different times, without sacrificing the needs of our clients. the different knowledge and skills that the various professionals bring to the clinic . . . first helps us all to be able to better deal with the sometimes emotionally challenging aspects of our cases, by creating an internal support network. . . . equally important, however, is that the client benefits from having more than one person fully aware of the status of their case, and ready to step into the role of supporting the client whenever necessary.116 through these statements, students recognize the implicit barriers to more productive cross-disciplinary collaborations and how the interdisciplinary approach begins to overcome these barriers. moreover, students from the various disciplines note the same advantages to the interdisciplinary structure; almost all of these entries focus on the discrete benefits this structure affords to our clients.117 the exercise of putting their thoughts into writing ensures that students give explicit attention to the importance of the collaborative effort, further raising students’ acknowledgement of this idea from subconscious to conscious awareness. c. cross-disciplinary supervision balances student autonomy to ensure multidisciplinary thought supervision is the final mechanism through which the clinic creates a multidisciplinary experience. all clinic students have weekly supervisory meetings with a member of the clinic faculty. in addition to these meetings, any significant case development usually motivates an interim meeting convening clinic faculty and students involved in the particular case. during these issue-focused meetings, like case rounds, clinic faculty first ask each student to rehearse the problem as they see it, then to suggest potential solutions. early in the semester, most students articulate a problem and propose a solution from the experience of their home discipline.118 thus, a law student is most likely to suggest a legal solution, a social work student a social one, and so on. because the different disciplines are brought together in these meetings, the teaching law and educating lawyers: closing the gap through multidisciplinary experiential learning 121 116 clinic law student (2006) (journal entry, on file with author). 117 one medical student commented on the considerable influence her expertise played in making legal determinations about a case. although i often am involved in a lot of “behind the scenes” work in many of these cases, i felt that my participation in the pre-hearing conference actually made a difference. . . . i just wanted everyone to hear the medical truth according to the children’s physician. when i was finally able to speak, i was so emotional. . . . i couldn’t bear to imagine these children sick and wasting away because of their mother’s inability to adhere to medical recommendations. . . . [t]his was also a prime example of the true interdisciplinary nature of this clinic. i was able to obtain medical information that may have been more difficult to “digest” for those not involved in the health professions. [our law student] was able to focus on the legal guidelines, the theory of the case, and our argument. [our social worker] did her part to contact teachers, social workers, and other people involved in the case, carefully documenting her findings. it was satisfying to know that our work made a difference in children’s lives. clinic medical student (2005) (journal entry, on file with author) 118 see lerner, using our brains, supra note 11, at 679 (describing this “downshifting” effect as common during periods of stress); clinic medical student (2005) (journal entry, on file with author) (commenting on the struggle to approach a case problem from her medical background). the student wrote: at the same time, however, i was struggling with a competing issue separate from the legal argument. legally speaking, there was no evidence that the [parent’s alleged behavior] had ever placed [our client] in danger. medically speaking, my as of yet immature medical instinct told me that living with [this parent would not be] an ideal situation for a child. i could also venture to guess that there exists research data on the risk of child abuse by the presence of [such a parent] in the home. yet, i had to remember that we were in a legal forum abiding by legal procedures and available evidence. . . . had i been on the other side of the argument, i may have pursued the corroborating medical evidence. perspectives of the various disciplines are brought to bear on the case through this approach. students listen to concrete and often widely different suggestions from other clinic students, and we find consistently that as the semester moves on each student is more likely to approach a problem already contemplating issues which earlier would have been raised only by a team member from another discipline. teaching this habit of mind through “real-life” concrete problems in cases relevant to the students involved provides the best opportunity for long-term retention.119 faculty members from the various disciplines, however,closely supervise these meetings to make certain that client interests are consistently met. 5. promoting collaborative scholarship the interdisciplinary nature of the clinic encourages rich scholarly collaborations, both in studying the impact of our clinical design, as well as in substantive issues in child welfare law. since the clinic began operating, collaboration with the school of social policy and practice has made possible two evaluations of the clinic’s impact in providing service, and on the professional development of attorneys who complete the clinic during their legal training.120 this arrangement capitalizes on the social science research capabilities inherent to social work training, permitting the clinic to objectively evaluate its operation in terms of the empirical findings shown in this research.121 the study also created a methodology for evaluating the work of child advocacy programs outside of our individual clinic, establishing a basis for evaluation and improvement on child advocacy work in general.122 in addition to these activities, faculty and students in the clinic have been involved in other scholarly work. scholarly endeavors between clinic students and faculty members of the same profession provide examples of intradisciplinary collaboration; faculty arrangements with members outside of the legal discipline demonstrate interdisciplinary approaches. examples of scholarship which have emerged from this clinic include an analysis of the clinic’s cases presently underway to ascertain whether there are early case indicators of long-term problems in neglect cases, a study of the legal standards and procedures for permitting proper investigation of reports of child maltreatment in the face of uncooperative caregivers, proposals for a national study of the administration of psychotropic medication to children in foster care, and a study of the quality of child advocacy in dependency cases in pennsylvania. already completed are studies of the efficacy of pre-hearing conferences with trained mediators in dependency court, performed at the request of the administrative judge of family court, and an analysis of the pennsylvania law and practice with regard to mandating mental health evaluations for caregivers in dependency cases, performed at the request of the family court’s court improvement project.123 119 see lerner, using our brains, supra note 11, at 695 (concluding that problem-based learning based upon reallife situations is particularly effective in creating retained and re-usable knowledge). 120 see robin m. mekonnen and melissa e. dichter, evaluation of an interdisciplinary child advocacy clinic (unpublished paper/publication forthcoming, draft on file with author) (evaluating the clinic’s ability to create positive outcomes for clients, develop students academically and professionally, and generate positive responses from other key stakeholders in child welfare proceedings); see also celina a. wollak, penn law school child advocacy clinic: evaluating the impact of participation on the professional lives of former law students, university of pennsylvania school of social policy and practice (apr. 28, 2006) (on file with authors). 121 see supra note 14 and accompanying text (recognizing the benefit of using non-legal ideas and methodologies to influence legal scholarship). 122 see generally mekonnen and dichter supra note 121 (discussing future directions for building upon their initial study). 123 material relating to each collaboration is on file with the authors. see also supra note 121(discussing an additional clinic-related collaboration). journal of clinical legal education december 2006 122 iii. challenges to developing multidisciplinary teaching and practice despite the tremendous benefits that accompany interdisciplinary collaboration, participants in the collaboration face unique challenges. careful planning and commitment by complementary professionals, who are respectful of their partners and their partners’ professions, are essential to success. a choosing partners 1. disciplines that are complementary. when we started to think about creating an interdisciplinary clinic, our first thought was to ask with whom we might collaborate. the decision required some preliminary understanding of what our subject matter and practice strengths and weaknesses were. as an experienced litigator, the first author knew that, because lawyers are always learning new legal subject matters in order to litigate a particular case, merely not having expertise in a particular litigation-based area did not preclude collaborating in that subject matter area.124 in fact, our first effort was to develop collaboration around legal issues related to domestic violence with a friend who is a physician on the faculty of the university of pennsylvania’s school of medicine and runs a clinic for abused women. the law and practice relevant to domestic violence seemed learnable. as it turned out, that collaboration lacked the joint-institutional support that is requisite to a successful collaboration125 and, therefore, did not work out. child advocacy, to which we next turned, was also an area in which the first author had no prior experience. however, the lawyering skills and values that had been critical to other forms of litigation and that would have been brought to collaboration in domestic violence work are equally appropriate to advocating for children. a year’s preparation time was adequate for an experienced lawyer and teacher to develop the competence to teach and supervise in this area. another consideration in choosing a partner for a law school-based collaboration is how it will work for the students. in teaching in our civil practice clinic – a general litigation and legal services model clinic – the first author had seen, time and again, that students asked whether the tasks that they were called on to undertake were really tasks done by lawyers, or “merely” social work.126 too often, law students saw their relationship to social work students as hierarchical, with the law students on top. we were concerned that if we partnered only with social work students and supervisors, too much time and energy would be spent on simply addressing that issue, to the detriment of many others, and might create resentment that would actually hamper the students’ learning to collaborate across disciplines. moreover, that hierarchical attitude could get in the way of seeing their clients, and their clients’ families, as equals – something that is critical to being open to accepting them as they are, and providing the holistic service that is at the heart of effective lawyering. the solution that we reached was to build a collaboration including medical professionals as well as social workers from the start. we believed that medical students would not “take teaching law and educating lawyers: closing the gap through multidisciplinary experiential learning 123 124 while the first author was in practice, almost all of his practice – employment discrimination law – was not an area that he had studied in law school. indeed, in the firm in which he had practiced for many years, all of the practice group chairs spent most of their time working in subspecialty areas that they had not studied in law school either. for example, although the real estate group dealt with the law of property, its most challenging and important work was in designing and negotiating financial arrangements among participants to a transaction. that is in large measure due to the fact that the law, and thus the practice of law, evolves over time, and lawyers must evolve with it if they are to serve their clients effectively. 125 see infra part iii.c (discussing institutional and administrative challenges to collaboration). 126 see jane aiken and stephen wizner, law as social work, 11 wash. u. j.l. & pol’y 63, 63 (2003) (arguing that the lawyer’s defensive response to the idea that the work they do is “social work” is troublesome). orders” from law students, and that law students would not attempt to “assign” things to the medical students. rather, they would start out seeing each other as equals, and proceed from that point to learn how to collaborate. in practice, it has become clear that some of these initial concerns were overblown. while there have been occasions on which law students have attempted to pass off certain tasks on the social work students, or complained of having to do what they deemed to be social work, for the most part that has not happened. when it has, the social work students, sometimes after requesting support from supervisors, have had little problem in engaging the errant law student in dialogue about the need to collaborate as equals. perhaps this is because of the social work supervisors we have had, perhaps because of the students we have had. and perhaps it is because we, as supervisors, understand and work hard to make visible to clinic students that the demands of the cases and the clients’ needs so clearly implicate the knowledge and skills of social workers. also, the law students, who are quickly drawn to the needs of their clients, and develop a commitment to help them – something they learn both explicitly and implicitly in law school – recognize that without partnering with social workers, they simply cannot achieve the same results for those clients. by now there have been so many cases in which the law students realize that without the medical students or social work students they would have been at a loss to address the real needs of their clients, we seldom are faced with a law student who thinks that the social work or medical student is merely an “add on” to the “legal team.” 2. collaborators who are complementary when we first sought to create a collaboration across disciplines, we were aware that an attempt at such a clinical relationship at penn law fifteen years earlier had not worked out. the relationship had been abandoned, in large measure because there was no agreed-upon model for integrating the social work students in to the law school clinical course, nor as to the role of the social work supervisor. because the initial plan had been to partner with a good friend who was a member of the faculty of university’s medical school and ran a clinic for battered women, which gave her the opportunity to collaborate with lawyers, mental health professionals, social workers and law enforcement personnel, we expected that many of these concerns would not affect our relationship; she already had a framework from which we could start building a collaborative relationship. unfortunately, when that didn’t work out, a new concern emerged. without knowing anyone in a position to be a partner in such an endeavor well enough to have confidence that the investment would pay off, moving forward became a challenge. the potential colleague from the medical school fortunately recommended and introduced us to a colleague with whom she had worked for many years, the director of the child abuse program of children’s hospital of philadelphia (chop). as director, she collaborates with lawyers and social workers on a daily basis. similarly, in seeking out a social work supervisor, recommendations sought from several individuals in the child welfare community finally led to collaboration with a person who had extensive experience in child welfare work and in crossdisciplinary collaboration. the collaboration ultimately has been successful because, from the beginning, everyone was ready to collaborate. collaboration requires the ability to work closely, trust one another, acknowledge that one’s partners have essential assets to bring to the work, be open to learning from one another, be open to ceding control to one’s partners, and perhaps most importantly, listening. moreover, in an interdisciplinary collaboration, each partner, at least at the start, does not have sufficient knowledge of the other’s discipline to know in a specific case whether the knowledge and judgment brought to the problem by that partner is appropriate. thus, it is imperative that the partners to an interdisciplinary collaboration are compatible professionally journal of clinical legal education december 2006 124 and personally, flexible, and firmly committed to investing the time and patience necessary to make the collaboration work. b. respecting partners and their respective professions even when a collaborative arrangement has been successfully negotiated, there exists the potential for serious problems between professionals used to working within discrete and separate professional frameworks. this results at least partially because, in addition to the particular subject matter expertise a professional holds with respect to her practice, she holds also an obligation to uphold principles of responsible practice within her profession. because each profession’s obligations differ, and at times may even conflict, partnerships between professionals from different disciplines can be challenging. for the legal professional, the model rules of professional conduct proscribe certain lawyer-non-lawyer professional partnerships that may hinder the attorney’s capacity for independent and reasoned judgment.127 while this rule is designed primarily to prevent fee-splitting arrangements with non-lawyers for the provision of legal services, it exists also in part to ensure that the lawyer exercises independent judgment in rendering legal services.128 the rule does not prohibit collaboration, but does demand a particular level of care when working collaboratively with non-lawyers. therefore, a lawyer who chooses to collaborate with a non-lawyer to provide better service to her clients must ensure that she makes decisions independently.129 she must also ensure that she upholds other professional responsibilities to her clients, including the duty of confidentiality.130 ordinarily, when the lawyer conducts her work in consultation with non-lawyer assistants, those assistants are bound by the same professional obligations of the lawyer.131 in the context of collaboration, however, where professionals are most effective by approaching a problem on equal footing, questions unavoidably arise as to whether the collaborating professionals ought to be bound by these rules, particularly when they conflict with the obligations inherent to their own profession.132 we do not submit that there are easy or comprehensive solutions to these problems. they will inevitably exist, just as questions regarding potentially inappropriate professional conduct exist for any lawyer in practice with other lawyers. a common conundrum is one in which our client, especially one old enough to form and defend an opinion about what she wants to do,133 is faced teaching law and educating lawyers: closing the gap through multidisciplinary experiential learning 125 127 model rules of prof’l conduct r. 5.4(b) (2006) (“a lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.”); see also, generally, william wesley patton, legal ethics in child custody and dependency proceedings: a guide for judges and lawyers 7, 27, 69 (cambridge press: ny 2006) (acknowledging the particular difficulties that ethics rules create for lawyers in these proceedings). 128 model rules of prof’l conduct r. 5.4 cmt. (2006) (noting the dual aims of this rule). 129 see model rules of prof’l conduct r. 2.1 (2006). 130 model rules of prof’l conduct r 1.6 (2006) (defining the scope of the duty of confidentiality). 131 model rules of prof’l conduct r. 5.3 (2006) (imputing the obligations of the lawyer on nonlawyer assistants). 132 in the context of child welfare work, this challenging question arises particularly with respect to the tension between a lawyer’s obligation of confidentiality and the existence of mandated reporter laws obliging both social workers and physicians to report suspected abuse or neglect. while the lawyer can only break confidentiality to disclose such information under very narrow circumstances, permitted only when there is “reasonably certain death or substantial bodily harm,” the standard applicable to mandated reporters requires disclosure at a much lower threshold. very real questions arise as to which standard a physician or social worker in a child welfare-related collaboration ought to follow. 133 the provisions of rule 1.14 (client with diminished capacity) of the aba model rules of professional responsibility and the pennsylvania rules of professional responsibility simply do not provide much help in deciding where on the slippery slope of “diminished capacity” one’s actual client falls, and thus whether it is appropriate to seek the appointment of a guardian ad litem. see model rules of prof’l conduct r. 1.14 (b). with a situation in which other adults think that her best interests are served by a solution different from the one she prefers. we choose to deal with these problems by acknowledging that they will arise, making students aware of the professional responsibilities attributable to their respective professions,134 and then investing the time, analytical effort and trust necessary in order to handle together any potential conflicts that arise. one constant component of this approach is to stress, and re-stress, the importance of the counseling function. while the role of counselor is common to each of the three disciplines,135 we have found that social work students are much better prepared as professionals to counsel their clients than are law students or medical students. we believe that our approach has worked because it is predicated upon each participant’s deep understanding of and respect for the indispensable professionals with whom they collaborate. c overcoming institutional and administrative challenges universities are usually composed of a number of “colleges,” or “schools,” each with its own faculty, its own schedule, and, worse yet, its own budget. moreover, different schools may be located at distant locations on campus, on separate campuses, or even in different parts of the city. thus, creating an academic offering that will include faculty and students from more than one school can be a challenge. the initial proposed collaboration to provide advocacy and counseling for victims of domestic abuse failed even though both of the proposed collaborators are at the same university, and all of the schools involved are within walking distance of each other on the same campus. the failure occurred largely because certain individuals whose administrative approval and support were required failed to consider how the vastly different schedules of medical, law, and social work students might be harmonized, what sort of academic requirements and credit would be appropriate for the medical students, and how to give the medical school faculty member “credit” for the teaching and supervision that she would be doing. this last item involves the trade-off of required teaching time and money, because if she was to be given credit for participation in this interdisciplinary course, additional details had to be settled. for example, we had to consider how much a collaborator should be compensated. after all, she would be co-teaching, not handling the workload alone. additionally, we had to think about how to compare teaching in this course with other, more traditional teaching done by other medical faculty. finally, we had to consider whether anyone, and if so who, would teach the courses that she had previously taught and where the money would come from to compensate that person. these are all real problems, and in many traditional academic institutions, formidable ones. we spent a long time planning our current collaboration, and have been fortunate. the dean of our school of social policy and practice has been very supportive, actually raising the money from a donor to pay for our social work supervisor. the pediatrician with whom we co-teach is on the faculty of two institutions, and was willing, and proved able, to negotiate that this work would be part of her teaching responsibility on the one that is not our medical school. she has also included her residents and fellows in the course as part of their journal of clinical legal education december 2006 126 134 law students, for example, are required to read the model rules of professional conduct concurrent with their enrollment in the seminar; additionally, seminar time is devoted to discussing mandated reporter statutes that bind social work and medical professionals. while we have done no studies, it has always seemed to the faculty that discussion of these issues – how to represent a pre-teen or teen aged client whose articulated goals seem adverse to their best interests and well being – usually occupy more time than virtually any other issue. 135 see model rules of prof’l conduct r. 2.1 (stating the lawyer’s counseling obligation); national association of social workers code of ethics r. 1.07(h) (noting confidentiality in the counseling role of social workers); american medical association code of medical ethics, opinion e-10.01 (including among the “fundamental elements of the patient-physician relationship” the right of patients to seek information and advice from their physician). educational experience. to facilitate this collaboration, we agreed to have the majority of the classes at chop. this year, the director of training for the pediatric psychiatry fellowship recognized the training value of participation, and agreed to have her fellows participate as well. and, finally, the law school and the school of social policy and practice, with our urging, agreed to provide academic and field-work credit for the social work students in the course. it was not easy; it took time, planning and negotiation. but in the end it worked. the fact that there are other interdisciplinary clinics throughout the country attests to the fact that it can be done. and who better to do the planning, negotiation and advocacy necessary to persuade others to support this collaboration, than lawyers? iv. conclusion – working towards change one thing that is becoming clearer to me as i progress in this clinic is the need for the law to be as “available” as possible in terms of being accessible to all of the people that it affects. in law school, students gain a skewed perspective of the legal process, as appellate cases with complex procedural machinations, and high financial stakes are the order of the day. the life of a litigation associate in a major law firm can inculcate similar values and perspectives, as it may be difficult for that young attorney to put a “face” to their client or to truly understand the practical ramifications of their case to any degree beyond the financial bottom line. this clinic has illustrated for me a theoretical notion that i had only acknowledged [sic] in passing – that most of the law in this country is practiced on an individual level – and the lives of those people are directly affected by the legal process.136 if the model we propose here is accepted, it demands that legal educators and administrators also accept a diversion from traditional approaches of educating lawyers. but, “[c]hange is the process by which the future invades our lives, and [change] is important . . . not merely from the grand perspectives of history, but also from the vantage point of the living, breathing individuals who experience it.”137 the effective lawyer must constantly adjust her approach to suit the needs of her client in a dynamically changing legal environment in which new legal issues consistently arise. crucial to successful modification is educating lawyers who understand, embrace, and most importantly can adapt to the change. interdisciplinary endeavors are an increasingly important mechanism by which different groups can together absorb and address the changes that affect a population they are both working to serve. we posit here that an intense interdisciplinary experience – which promotes and expects students to perform high-quality professional work, and to do so in a collaborative model otherwise unknown in law school; motivates powerful emotional attachments to that work; and sometimes results in successes for a population that has the capacity to demand more than a student knows she can give – generates long-term critical professional learning and fosters an ability for collaboration. the process tends towards better outcomes for clients and collaborators alike because we understand, by engaging our clients habitually and by incorporating the wisdom of the living breathing individuals with whom we collaborate, how we can change together to create more just and favorable results. teaching law and educating lawyers: closing the gap through multidisciplinary experiential learning 127 136 clinic law student (2003) (journal entry, on file with author). 137 alvin toffler, future shock 1 (1970). appendix the family of baby “m” baby m., a 2 1/2 yr old child, had been reported to the county child protective services agency, known as the department of human services (dhs) as having an elevated blood lead level. the family would neither speak with the investigator from the department of human services (dhs), nor permit him in the home, so dhs filed a petition in court seeking an order to compel mother’s cooperation. our clinic (clinic) was appointed to represent the child. mother failed to appear at the first hearing, and had not responded to her court appointed lawyers letter. the court continued the case for a week. by the time the case was back in court, dhs had been to the house, determined that mother & child had moved next door with maternal grandmother (mgma), and visited there. mother and child appeared at court for the continued hearing, accompanied by the mgma, and counsel for mother. we observed, and were concerned about, mgma’s verbal interactions with the child, always critical (“you are a bad girl.”) and threatening (“if you don’t come here right away, i’m going to hit you.”), etc. mother did not intervene; however, mother and child seemed connected to each other. in court we learned that mother had recently had another child (“infant”), and also has a 15 yr. old son (“teen”) who lives with them, and goes to school. however, neither of them was the subject of the dependency petition. because mgmas house also had old and peeling paint – probably lead based – dhs removed m. and placed her with her paternal grandparents (pgp), who live a few blocks from mother. dhs reported that the pgp agreed that mom could visit whenever she wished. mother agreed to cooperate, and signed a release permitting us to obtain the child’s blood lead level reports. we made arrangements to make a home visit. mother also agreed to accept services for children in their own home (scoh), and other services from dhs. we offered, and the court approved, having the child, m, seen, evaluated, and followed at children’s hospital of philadelphia (chop). during the telephone call to make arrangements for the home visit, when our student asked mother a question, she handed the phone to her mother (mgma), who then took over the conversation. at that point she said that they would not have the child go to chop because there was nothing wrong with her, and they were not going to let strangers experiment with her. the home visit was done by our 3d yr. law student, and our 4th year medical student. the medical student is also a former peace corps worker in west africa. when they returned, they reported that mgma’s house was filthy, and overrun by roaches. mother and mgma. were dressed in dirty unkempt attire, mgma in a night gown. the home had a space heater in the middle of the living room. the roach problem was the worst that either student had ever seen, with roaches in, on, and coming out of every piece of furniture, drawer and closet. also, much of the furniture, including the child’s bed, was broken. trash was piled and strewn everywhere. dhs took the position that the baby m. could not return home until the house was exterminated for roaches, cleaned, and the lead paint problem was abated. mother’s lawyer complained that that would take weeks to accomplish. mother’s lawyer also said that there was serious hostility between mother and mgma on the one hand, and the paternal grandparents, the former alleging that the father suffered from aids. by the time the home visit took place, mother’s lawyer had arranged to get them paint to paint over the lead paint, and that had, pretty much, been done. journal of clinical legal education december 2006 128 we then arranged to have mother and all 3 children accepted immediately at peoples’ emergency center (a highly regarded, full service residential center for homeless mothers with children) to live there, temporarily, pending the extermination of the house. mother’s lawyer said that she would recommend that; however, mother refused. pgp were both retired. their home was clean, well organized, filled with family photographs, and adequate in every way. they were careful and attentive to m.; however, there was not evidence of much hugging and other forms of emotional nurturing. baby m. expressed the desire to be with her mother, saying that she would clean maternal grandmother’s house so that she could return home. also, although the pgp confirmed that mother, who does not work, was welcome to visit any time, they said that she came only once a week. our investigation also included interviewing father. based upon the conversations with father and pgp, our students concluded that it was highly likely that father does suffer from aids, and that it is a sufficiently advanced state to suggest that he was hiv infected when m. was conceived. consequently, we requested, through mother’s lawyer, that m. be tested. we were told that she had been, at birth, and was negative. we asked for a release for the child’s medical records, and were told they would be provided. when we finally got the records, there was no indication of hiv testing. mother continued to insist that it had been done, and refused to agree to have current testing for m. at the follow-up hearing three (3) months later, while we were still trying to find money to pay for an exterminator, and about to ask the court to order mother to have baby m. tested for hiv, mother’s lawyer argued that the child was not neglected, her best interests were not being served because it was more harmful to her to remain in the home of her pgp, than it would be to have her living in the mgma’s home with her mother and siblings, and that mother’s constitutional and statutory rights to parent her children as she sees fit is being violated. mother contends that because m. is neither abused nor neglected she must be returned immediately. (what recommendations would you make to the court; and why?) ………………………………………………………………………………………… the law the pennsylvania. juvenile act, 42 pa. c.s.a. § 6301, et seq.,138 and the pennsylvania child protective services act, 23 pa. c.s.a § 6301, et seq.,139 generally govern proceedings to protect children who have been abused140 or neglected,141 or are otherwise found to be dependent,142 i.e., without proper parental care, or supervision, including school attendance as required by law.143 the burden of proof in a dependency case is on the party seeking to have the child adjudicated dependent and/or removed from the home, to prove dependency by “clear and convincing evidence.”144 once a court has adjudicated a child dependent, that child is subject to supervision by the court which may be in the home, or after commitment to the custody of the child protective services agency (cpsa) and removal teaching law and educating lawyers: closing the gap through multidisciplinary experiential learning 129 138 pennsylvania juvenile act, 42 pa. c.s.a. §6302–6365, et seq. (2007) 139 pennsylvania child protective services law, 23 pa. c.s.a. §6302–6385 (2006) 140 23 pa. c.s.a. §6302(a) 141 42 pa. c.s.a. §6302 142 id. 143 id. 144 42 pa. c.s.a. §6341(c) from the home, in an appropriate out of home placement. before a court can order a child to be removed from her/his home, the cpsa is required to make reasonable efforts to avoid such removal, and once the child is removed, the cpsa must make reasonable efforts to return the child to her/his parent.145 in any proceeding which could result in the removal of a child from its home, temporarily or permanently, the court must appoint a guardian for the child in the litigation (guardian ad litem [gal]), and the guardian must be a lawyer. the guardian must pursue the “best interests of the child.”146 if a child is adjudicated dependent, and committed to the cpsa, the cpsa is responsible for providing for all of the child’s needs, to assure its safety, health and well being,147 and for making reasonable efforts to re-unify the child with the parents.148 implicit in the cpsa’s responsibility for the protection of children is its responsibility to provide reasonable assistance to parents in recognizing and remedying conditions harmful to their children and in fulfilling their parental duties more adequately.149 once a child has been adjudicated dependent the court must review the case not less than once every six months,150 and include in its order (a) whether the child remains dependent, (b) whether the child is safe and her/his needs are being met – whether in the home, or in a placement – (c) whether it is contrary to the child’s health, safety and well being to remain where she/he is – at home or in placement – and (d) whether the cpsa has made reasonable efforts to prevent placement, or if the child is in an out-of-home placement to re-unify the child with the parents.151 …………………………………………………………………………………………… social work considerations as described in the preamble to the code of ethics of the national association of social workers, the mission of the social work profession is rooted in a set of core values. these core values, embraced by social workers throughout the profession’s history, are the foundation of social work’s unique purpose and perspective: • service • social justice • dignity and worth of the person • importance of human relationships • integrity • competence while looking at the facts laid out in the case, we must make sure we look at this family through the lens of these core values, and ask ourselves these questions (and more!) 1.is the child safe? are her needs being met? 2.do we have any responsibility to the other children in the home? 3.what direct supports can we help mother with in improving her home so she can improve her living conditions? journal of clinical legal education december 2006 130 145 42 pa. c.s.a. §6351 146 42 pa. c.s.a. §6311(a) 147 23 pa. c.s.a. §6373(a)(7) 148 23 pa. c.s.a. §6373(a)(5) 149 23 pa. c.s.a. §6374(b) 150 42 pa. c.s.a. §6351(e) 151 42 pa. c.s.a. §6351 4.how can we encourage the mother/daughter relationship while apart from each other? 5.what is the quality of the interaction between mother and child(ren) and how can this be improved? what in these facts suggests this is an area that needs support? 6.how can we assist the family in overcoming their concerns about our involvement and “strangers experimenting” with their daughter? 7.how do we honor the “dignity and worth” of our client and her family when they are so hostile to our concerns about their situation? thoughts to consider: if a child is safe, than how do we justify separating her from her mother – how much could our own values about ‘what a home should look like’ be affecting our judgment? if the child is hiv positive, how does this affect our reaction to mother, father, and the child, and how does it affect our position and work with this family? poverty is an overarching issue here – what can we as social workers do in direct support around this issue for this family as well as on the macro/societal level for all families in similar situations. ………………………………………………………………………………………………… physician & patient you are the physician for “m”, a 2 yr old child, who you see for the first time in your clinic. you notice that m has not had routine care and order lab work, including a lead level, which is missing from her record. you discover that the lead level is high. on your exam, you also notice that m is small for her age and that she does not talk much. when you question the mother, you find out that they are living in a home without running water. you report m’s lead status and living conditions to dhs. your colleagues at penn law are appointed as child advocates for m and her siblings. they contact you for additional information, including her medical records, and you ask them to keep you aware of developments that may affect the children’s health. during this conversation, you learn that dhs investigated your report and discovered 2 additional children in the home, a 4 month old baby “j” and a 15 year old boy “r” and opened a case on them as well. dhs filed a dependency petition. the child advocate also tells you about their first home visit. at this visit mother indicated that the baby was sick “a lot” and that the 15 year old (who was not at home but unaccounted for) had not attended school in about a year because he’s a “dummy” and she “could not make him go”. she also said she used crack cocaine “once in a while” to help her “get her mind off her problems”. she suspected her 15 year old was using, and perhaps dealing, drugs as well. m was observed to be very hyper and to have no comprehensible speech. her clothes appeared too small and very dirty. the home was observed to have some peeling paint (believed to be lead based on m.’s lead levels) and a few exposed wires in the ceiling. the home had a space heater in the middle of the living room because the heat had been shut off for non-payment. there was water but not hot water. the roach problem was excessive. also, much of the furniture, including m’s bed which she shared with mother, was broken. baby j. slept in a bassinet and the r. on the couch. stuff was piled and strewn everywhere. mother seemed very depressed with little affect and when asked, admitted she had depression but was not being treated. she feels overwhelmed by her responsibilities. none of the children’s fathers are involved and mother alleges that m’s father “had aids.” teaching law and educating lawyers: closing the gap through multidisciplinary experiential learning 131 you agree to care for all three children, and are asked to testify about their health at the first hearing, where you hear the judge defer adjudication and order dhs to “help” the family or he will place all three children at the next hearing. you want to assist in any way that you can. medical considerations • lead levels are generally checked in children routinely at between 9–12 months and sometimes again at 2 years. screening is necessary because lead toxicity can have significant adverse effects on the development of the brain and nervous system in children. beyond these initial screenings, children are typically assessed for risk of lead exposure throughout early childhood. > 12% of 1–2 y.o. children have an elevated lead level. higher risk populations include those: • in which there is inadequate data on the rate of increased blood lead levels • residing in the >27% of housing built in usa prior to 1950 that contain lead • by two years of age, • a child should know several words • the child also should be able to combine these in 2–4 word sentences. • a listener should be able to understand 50% of what a child is saying • father with suspected hiv/aids and a 4 month old who is sick a lot and a mother who is doing crack cocaine • if father has aids, there would potentially be transmission to mother • there is potential for perinatal (in utero) transmission of hiv to fetus, which could affect m or j • the situation raises obvious concerns for j & m to get tested for hiv – treatment for very young infants can be quite effective. • another consideration is whether mom breastfeeds j • crack cocaine could be ingested by j in breast milk • j at 4 months of age is unable to make the first line antibody defense to infection (iga). the infant’s immature immune system isn’t ready to produce this until 6 months of age. a breastfeeding infant can usually get iga from a portion of the mother’s breast milk. formula does not contain iga. if j is not breastfed, and is exposed to infection, j may be more susceptible. • beyond the sanitation concerns, cockroaches are highly allergenic. we don’t have evidence of allergenic/asthmatic reactions of the older children or mother but it may be something to follow. this would not be expected to account for j’s being sick because the immature immune system also does not mount a huge response to allergens. • cataracts in children can be congenital (present at birth) or acquired (develop later). acquired cataracts may be related to an underlying disease. while the definitive treatment for cataracts is removal, when underlying disease is present the cataracts may reoccur after surgery. a medical evaluation to look for underlying disease would be prudent. ………………………………………………………………………………………………………….. journal of clinical legal education december 2006 132 using the problem of “the family of ‘baby m’“ as a teaching exercise this case has twice been used as the basis for an exercise to demonstrate the value of multi-disciplinary collaborations, each time with an audience primarily of lawyers. we divided the audience in to three groups: lawyers, social workers, and doctors. all three get the introductory case description. each group then also gets the additional information that is discipline-specific – “the law” for the lawyers; “social work considerations” for the social workers, and “physician & patient” and “medical considerations” for the doctors. the three groups then go off and discuss the situation by themselves,, returning after about 15 minutes to share their advocacy proposals with the others. each time that the exercise was done, all three groups decided, independently, that the goal should be that the child would be returned to her mother; however after that, they were on very different pages. each time, the lawyers group focused on the conflict between the child’s interests and the mother’s, and identified the things that the mother should be required to do to get her baby back. the medical folks had everyone in the family undergoing some test, assessment or treatment, but made no suggestion about anything having to do with interpersonal communications or relationships. the social workers advocated counseling, and talking together to discuss where to go and what everyone needed to do, individually and together, to enable the family to live together. they also recommended that resources be made available to address the roach situation, and to assist mother to do what she needed to do while obtaining counseling, as well as an assessment for depression. the group as a whole then discussed the ideal “package” of responses using some from each group to demonstrate that the collaboration can, but the individual disciplines acting alone cannot, provide what the child and family needed to go forward constructively. teaching law and educating lawyers: closing the gap through multidisciplinary experiential learning 133 reviewed article 5 the value of participant feedback: insights from learners in a novel, non-university cle setting in china dr alexandra grey* introduction in the scholarship on clinical legal education (cle), there is relatively little attention to “insider” (participant) perspectives,1 a skew towards global north cle studies, and little exploration of innovations that may take cle beyond the setting of formal tertiary education. taking these critical observations as its starting point, and seeking to extend the scholarship in these regards, this paper explores data from 72 feedback questionnaires completed in 2011 and 2012 by participants over two courses of a semester-long, english-mandarin bilingual a novel legal education program in the people’s republic of china (china). the program was called the yilian advocacy training tournament (义联杯“公益倡导竞技性训练项目”; yatt), and it was run by a * dr alexandra grey is a postdoctoral fellow at the university of sydney law school; contact alexandra.grey@sydney.edu.au. the author gratefully acknowledges the input of the peer reviewer, professor simon rice and colleagues in the sydney law school ‘feedback club’ during revisions. 1 although a recent study from hong kong does take up the method of exploring participant perspectives in a cle context: tam, c. m. (2020) ‘measuring law students’ attitudes towards and experiences of clinical legal education at the university of hong kong.’ international journal of legal education 27(1), pp.47-100; and a much older study about participants’ motivations at a tsinghua university legal clinic in beijing offered a path for such studies: gibson, f. (2002) ‘chinese clinical legal education in the year of the horse – a visit to tsinghua university.’ newcastle law review 6(2), pp.33-38. reviewed article 6 legal aid centre called beijing yilian legal aid and study centre for labour (北京义 联劳动法援助与研究中心; yilian centre).2 what makes yatt worth studying is its atypical context: this is a global south, civilsociety-led, 3 publicly interested, practical legal education program for university students. yatt thus provides a case for investigating important questions as to how novel forms of legal education are experienced and evaluated by participants, and whether civil-society-led legal education can extend our ideas of alternative cle forms, especially forms that may be adapted to contexts beyond the global north. as the literature review elaborates, the majority of cle programs in china and worldwide either take place wholly within law schools or are externships supervised by law school staff at public legal service agencies. 4 the article refers to this as “university-led cle”. whether this is a tautology, because all cle must be universityled, is a subject to which the article will return, but the article does not turn on definitions of cle. rather, the focus is on that which this study’s method, and this 2 yilian legal aid and study centre for labor. history and context. (2012), from < http://english.yilianlabor.cn/ >. 3 here, it suffices to say that the term “civil society” is contentious but used in the chinese context, e.g. cai, y. and pottenger, j. l. (2010) ‘the “chinese characteristics” of clinical legal education’, ch 6: pp.97-101 in bloch, f.s. (2010) the global clinical movement: educating lawyers for social justice, oup, p.89. 4 spencer, r. (2012) ‘holding up the mirror: a theoretical and practical analysis of the role of reflection in clinical legal education.’ international journal of clinical and legal education, 18, pp.181-216, p.182; the malaysian cle projects described by lasky and nazeri are examples already available in the literature of university led cle projects working with, but leading, non-university organisations: lasky, b. a. and nazeri, n. m. (2011) ‘the development and expansion of university based community/cle programs in malaysia: means, methods, strategies.’ international journal of clinical and legal education 15, pp.59-74. reviewed article 7 study’s findings, can prompt in terms of innovation in cle, both within the university context and in terms of civilsociety led alternatives to it. the prompt for this case study is the argument in the cle literature, present for some time now, that it is important to create more “indigenous” and “culturally specific” varieties of cle, especially in china, and that this may mean moving away from the global north university-led cle paradigm. 5 notable within this literature is wortham’s still-relevant call for greater diversity in cle studies, inspired by the insufficient academic analysis of cle outside the usa. 6 as dowdle argues, expanding the forms of cle in practice will require scholarship ‘promoting discovery of the indigenous developmental implications and possibilities inherent in the domestic environment’; he calls this the ‘pragmatic strategy’ for developing cle in an era of globalisation.7 this article is such scholarship. it showcases and analyses a civilsociety-led legal education initiative that centres on practical, problem-based legal learning but is neither a classical form of cle, because it is not university-led, nor necessarily the other key kind of practical legal education known in cle literature, practical legal training (plt), because it is not part of a legal qualification requirements and because of its a strong public interest focus. yatt is a novel hybrid; 5 respectively, references to dowdle, m. w. (2000) ‘preserving indigenous paradigms in an age of globalization: pragmatic strategies for the development of clinical legal aid in china.’ fordham journal of international law, 24, s56-s82.; burg, e. m. (1977) ‘law and development: a review of the literature & a critique of "scholars in self-estrangement".’ american journal of comparative law, 25, p.529. 6 wortham, l. (2006) ‘aiding clinical education abroad: what can be gained and the learning curve on how to do so effectively.’ clinical law review, 12, 615-685, p.617 and p.674. 7 dowdle, above n5. reviewed article 8 it arose through adaption to the chinese context but, as this article will argue, is relevant beyond that context. as the article explains, university-led cle in china has faced constraints which civil-society legal assistance organisations have not, and so the space for increasing cle opportunities and developing a publicly interested culture of legal practice is not necessarily within law schools. however, those civil society organisations face their own constraints. this is why showcasing novel cle is useful: it models flexible adaptations to local conditions. overall, this article illustrates what pragmatically indigenising cle could mean: stepping back and seeing the university context as a feature that can be innovatively transformed, rather than a paradigmatic essential of cle. the article uses the feedback of yatt’s participants to investigate the program from an internal, or “emic” perspective rather than trying to impose onto it existing typologies from the literature. it thus complements the literature, which primarily analyses cle programs from the external perspectives of the facilitators/clinicians. the article aims to achieve something more useful that “proving” that yatt is cle according to the cle definitions designed for typical university contexts: it aims to expose what was valuable and meaningful to this programs’ participants in order to show that innovations to the roles of universities and civil society organisations can expand our ideas of how to offer publicly-interested practical legal education to university students. reviewed article 9 in this respect, the article acknowledges, but puts aside, the long-standing debate as to whether cle is separate from, or overlapping with, plt.8 i begin from the premise that the strict distinction is a heuristic. this heuristic derives from the regulation of admission to legal practice in some countries, with plt referring to the prescribed vocational training.9 a related division is made by some scholars and contested by others – between “real” clinical work as cle and scenario/simulation-based practical legal education at plt.10 however, this strict division does not necessarily serve the global expansion and indigenisation of cle. the yatt participants’ experiences reveal that strict separations between cle and plt, and between university and nonuniversity cle, are heuristics not necessarily shared with, or meaningful to, participants. moreover, neither cle nor plt perfectly describes yatt, yet we may lose relevant knowledge if we exclude this study from either. i therefore urge readers to put aside the cle definitional debates and accept dowdle’s pragmatic outlook: hybrid, indigenised innovations like yatt can serve real needs, especially in national contexts and legal cultures that otherwise inhibit the provision of canonical university-led cle and the development of a culture of public interest lawyering. moreover, as this case study will show, an unprecedented form of practical legal 8 see evans, a., cody, a., copeland, a., giddings, j., joy, p., noone, m. a. and rice, s. (2017) australian clinical legal education: designing and operating a best practice clinical program in an australian law school, anu press, p.43. 9 for example, in england and many commonwealth countries, but not all common law countries: burke, j. and zillmann, h. (2018) ‘creating a gold standard for practical legal training in common law countries.’ journal of international and comparative law 5(1) 9-41, p.29. 10 evans et al., n8, pp.43-46. reviewed article 10 education (to use an intentionally category-blurring term) can nevertheless share goals, as well as challenges and solutions, with cle in more typical university contexts. based on the analysis of yatt feedback data, the study finds that participants’ feedback echoes characteristic features and purposes of cle; participants experienced yatt as a cle variety. moreover, the feedback analysis shows the many aspects that motivated students, beyond university grades and course credits, making nonuniversity-led cle a more viable prospect. these findings in turn support the broader arguments that simulations embedded in real contexts, and civil society organisations taking the initiative to expand the provision of practical legal education serving the public interest, may both be useful adaptions of cle, especially in contexts where university-led and more classically recognisable cle programs are in short supply. finally, the article makes an argument relevant to cle in all contexts, including at global north universities: that we may be able to improve cle programs by inquiring more often into that which participants value. in this case study, such an inquiry uncovered the high value participants placed on learning to use language like lawyers do, through practical pedagogy. this leads me to propose that language and communication skills should be considered more explicitly as integral in cle scholarship and in actual cle design, and not only in contexts where cle involves second language learning, as yatt did. reviewed article 11 by way of contextualising this study, the following sub-sections will explain the format of the yatt program, the characteristics and purposes of cle in the literature and the study’s methods, before i proceed to analyse the data itself in section 2 and critically discuss key findings in section 3. overview of yatt activities and participants university-led clinical legal education programs, as well as government-sponsored and civil-society-led legal assistance organisations, began appearing in china in the 1980s and then proliferated.11 phan argues that china’s global integration increased “pressure to conform to international legal norms” and that this translated into increased cle in chinese law schools.12 this was contemporaneous with a push for chinese higher education reform which the cle literature describes.13 the harvard law review14 identified three types of legal education in china which emerged, linking universities to the legal profession: students involved in litigation coordinated by 11 my former yilian centre intern, lee, gives an overview of the history of legal aid and university legal clinics in china: lee, j. (2011) ‘can china’s fledgling ngos leave the nest?’ journal of undegraduate international studies, 11(fall), 25-31. see also: gibson above n1; pottenger, j. (2004) ‘the role of [clinical] legal education in legal reform in the people’s republic of china: chicken, egg – or fox?’ journal of clinical legal education. 4. 65-80, p.69; liu, x. (2015) ‘clinical education in china and the issue of locus standi in criminal defense.’ williamette jorunal of international law and dispute resolution 23(1). 93-114. 12 phan, p. n. (2005) ‘clinical legal education in china: in pursuit of a culture of law and a mission of social justice.’ yale human rights & development law journal. 8. 117-152, p.117. 13 mao. l. (2007) ‘clinical legal education and the reform of the higher legal education system in china.’ fordham international law journal 30. 421-434, p.432. 14 anon. (2007) ‘note: adopting and adapting: cle and access to justice in china.’ harvard law review, 120(8), 2134-2155. reviewed article 12 university professors; direct cooperation between the government and students to draft laws protecting disadvantaged groups; and community-level engagement where students are taken to rural communities to do litigation, legislative drafting, civic education, process analysis, and survey-based research. all were dubbed ‘innovative, indigenous adaptations of cle’.15 by 2004, pottenger reported that there were a dozen legal clinics run by chinese law schools.16 a national cle coordination body (the committee of chinese clinical legal educators: cccle) was established around this time (2002) and ‘[b]y october 2009, membership in the cccle had expanded to include a total of 115 institutions, 76 of which have formally integrated clinical education into their law school curricula’.17 (for this article, is it relevant to note that the cccle is only comprised of academics and law school members, not civil society lawyers or organisations.18) also by 2009, i.e. just before yatt began, civil society organisations providing legal aid, legal research, and law reform were performing 32% of legal aid work in china. 19 university cle programs and legal assistance civil society organisations together have nevertheless still struggled to meet demand,20 even more so as changes in government regulations and practice since 2012 15 ibid, p.2148. 16 pottenger, n11, p.67. 17 cai and pottenger, n3, p.93. 18 barry, m. m., czernicki, f., kras´nicka, i. and mao, l. (2010) ‘the role of national and regional clinical organizations in the global clinical movement.’ ch 19: pp.286-288 in bloch, f. s. (2010) the global clinical movement, oup. 19 ministry of justice, the people’s republic of china (2009) ‘legal aid in china’. retrieved 20th february 2014, from <http://www.legalinfo.gov.cn/english/legal-aid/node_7619.htm>. 20 see mao, n13, p.421; cai and pottenger, n3, pp.97-101. reviewed article 13 have reduced civil society-based legal assistance. 21 further, university-based legal clinics in china have always been constrained in the type and sensitivity of public interest casework they can take on, because of public universities’ government affiliations.22 yatt was run twice by the yilian centre, commencing first in 2011 and run again in 2012. the yilian centre is a local chinese civil society organisation whose staff, including the author, designed yatt. (in the chinese context, such organisations are sometimes referred to as government-organised non-government organisations, gongos.) as with the types of cle identified by the harvard law review, yatt linked university students and legal academics to the legal profession, but the members of the profession included public interest lawyers in addition to private lawyers, to ensure that the real-world role of civil society organisations as legal advocates would be integrated into the education. and yatt involved multiple 21 n.b. yilian center remains open at the time of writing in 2020, but, see reports by branigan, t. (2009) the guardian. retrieved 25th march 2020, from <https://www.theguardian.com/world/2009/jul/18/china-shuts-legal-aid-centre>; ford, m (2016) the atlantic. retrieved 25th march 2020, from <https://www.theatlantic.com/international/archive/2016/01/china-lawyer-crackdown-arrest/424005/ >, and gan, n. (2017) the business and human rights resource centre. retrieved 25th march 2020, from <https://www.business-humanrights.org/en/china-more-than-300-rights-lawyers-detained-innationwide-crackdown-including-lawyers-who-handled-cases-on-corporate-abuses-at-least-5-faceformal-charges >. 22 for example, the centre for women’s law studies and legal services of peking university had to dissociate itself from the university and was later shut down, in 2016: tatlow, d. k. (2016) the new york times. retrieved 25th march 2020 from <https://www.nytimes.com/2016/01/30/world/asia/beijing-women-legal-aid-guo-jianmei.html >. see also comments by cai and pottenger, n3, p.96, on the demise of tsinghua university’s clinic for social and civil rights matters. reviewed article 14 universities once, taking the lead in designing and running the project. yatt was offered by yilian centre to voluntarily participating students from universities in beijing. each course of the program took about one semester and involved five activities: mock trial, impromptu public speaking, mock client interviewing, mock labour negotiation and debate. each activity was undertaken twice by the participants, first in a practice round and then in an assessed round. their scores were accumulated over the rounds. the activities were scenario-style cle (on scenario cle, see further ‘literature review: the purposes of clinical legal education, generally and in china’, below), all original to yatt and all designed for experiential learning. each scenario’s design and its training materials were based on yilian centre’s own case files (mainly labour class actions and criminal matters), its survey-based research and its research into trends in case law. for each round, there were professional volunteers to give feedback and evaluate/score the students. each activity’s preparation, running, scoring and feedback discussions were facilitated by yilian staff who had been involved in the yatt curriculum and activity design, some of whom also had university teaching experience. after the five rounds of activities, there was a grand final activity in which selected participants delivered a prepared speech on law and policy reform, again based on yilian centre’s research and actual cases. these speeches were delivered to a judging panel comprising selected professional volunteers and an audience comprising the other students and professional volunteers, as well as other associates of yilian centre. these volunteers included legal academics from various universities and renmin university law school was a reviewed article 15 key partner for the provisions of activity space. activities often took place within the yilian centre, where participants sometimes informally met actually clients and yilian staff, or in renmin’s classrooms on weekends. the learners in yatt were chinese university students from several universities in beijing, participating together in the same program. they were predominantly law students, with a small number of undergraduate students from other disciplines who intended to study postgraduate law in the future. there were about 25 students in the yatt cohort each year, with a smaller group for the first activity then increasing numbers, as word of mouth spread. each activity was offered in a mandarin-medium and an english-medium version, with students able to elect their language preference. yilian centre staff prepared original, bilingual education materials tailored for the students, which were provided to them ahead of each training activity to assist them prepare. these included instructions, role allocations, fact scenarios and a glossary of key terms. each yatt activity also involved practicing chinese and foreign lawyers, advocates, legal academics or other professionals in applied legal work, as volunteers. these professional volunteers acted in an adjudication and mentoring role in each yatt activity, undertaking brief training, providing written scores, completing feedback forms about the students’ performance, and providing oral feedback in discussions with the students right after each activity. some professional volunteers assisted many times, while others assisted just once or twice. there was a corps of about 20 reviewed article 16 professional volunteers each year, plus about five yilian staff who regularly facilitated and judged the activities. because yatt’s cle activities were in scenario form, in some activities these volunteers also played a scenario role, in addition to their pedagogic role of assessing and giving feedback. for example, they acted as judges in mock trial courtrooms. a version of yilian centre’s original preparatory education materials tailored for the professional volunteers was provided to them ahead of each training activity. general updates on yatt, photos and schedules were also provided periodically to the professional volunteers via email bulletins. a reason for both yatt and this case study of it is cle is not widely reported in china in the literature and,23 in the author’s experience, was not common on the mainland nor in hong kong. (tam reports that cle has increased at hong kong’s leading law school in the last decade;24 this trend may permeate the mainland but the culture of experiential legal education both at and after law school is different in hong kong, owing to its closer ties to the international common law culture of education and practice.) a shortage of cle has been seen as a contributing factor in the underdevelopment of a public interest culture of legal practice, but the lack of this culture has also inhibited the development of cle at chinese universities, as cai and pottenger point out. 25 lee suggested that ‘legal aid and research ngos have the potential to fill gaps in the state legal aid system by building a commitment to public 23 cai and pottenger, n3, p.90 explain why practice-based learning is limited at chinese law schools. 24 tam, n1, p.47. 25 cai and pottenger, n3, p.100. reviewed article 17 interest work among lawyers’. yatt’s organisers understood yatt as an attempt to fill the gap in university cle and as an effort to build a commitment to public interest legal work amongst future lawyers by seeding a culture amongst law students. moreover, the global network for public interest law’s china fellows consider legal aid, non-government advocacy and engaging the private sector through pro bono as the means of advancing the interests of the public which all need to happen at once.26 however, situations in china where such organisations could all work together on one joint endeavour were rare when the yatt project was initiated. in this climate, the drivers behind the yatt were pragmatic; it was conceived as a project to strengthen the yilian centre’s network while responding to unmet needs in terms of local cle and career progression into, or awareness of, public interest advocacy. moreover, yatt was intended to be unlike most chinese legal education in order to foster public interest legal skills – namely critical debate and speaking on behalf of others – which were perceived to be largely absent from conventional chinese schooling.27 literature review: the purposes of clinical legal education, generally and in china 26 global network for public interest law (2013) three ways are bettwe than one: building public interest law in china. 27 ye, m. (26 february 2014). [email correspondence with research director of beijing yilian legal aid and study centre for labour, who was also a university lecturer]. reviewed article 18 the role of the literature review in this study is twofold. first, it informed the study’s directed content analysis of feedback data by identifying key themes to look for in that data, through a review directed to establishing what are widely held to be the purposes and key characteristics of cle. these external “benchmark” purposes and characteristics are crucial to the analysis of the feedback survey results, as the study’s key question is whether the participants’ feedback on yatt aligns with these externally derived purposes and characteristics of cle. a second goal of the literature review was to understand the current state of cle in china. this makes apparent the need for contributions, such as this one, exploring alternative cle models in china, and indeed the general need for more literature on global south cle. in reviewing literature about the varieties of cle around the world, some common purposes become apparent. taking this global approach is appropriate, particularly in light of chinese cle expert michael dowdle’s argument that although chinese cle has developed differently from american cle, global cle is converging, not so much in the sense of adopting a single, universal structure for the delivery of clinical legal education or legal aid, but in the more general sense of … adopting a shared cognitive understanding of what both these devices can be all about.28 28 dowdle, m. w. (2008) ‘completing teubner: foreign irritants in china’s clinical legal education system and the ‘convergence’ of imaginations.’ ch 6 in nicholson, p. and bidduph, s. (2008) examining practice, interrogating theory: comparative legal studies in asia, brill p. 189. see also hannemann, j-g. a. and lampe, j. h. (2015) ‘‘clinical legal education’— observing, comparing and analyzing the differences in germany and china for each other’s respective advantages.’ asian journal of legal education 2(2) 157–169, p.157. reviewed article 19 likewise, bloch argues for taking a ‘global perspective’ on cle, because of cle’s worldwide establishment, the international interactions between cle educators, and a shared ‘commitment to legal education and legal system reform – to socially relevant legal education’.29 burke and zillmann make almost the same argument about the globalisation of legal practice and plt.30 moreover, this literature review shows that studies about cle in china converge on the same core purposes as the other cle literature. practical legal education one of the purposes of cle presented in the literature as well as in cle providers’ self-descriptions include instilling an ‘ethic of preparation, practicing ethical lawyering and developing critical thinking’ in students31; ‘teach[ing] students how to learn from experience’32; ‘to help students learn from their own experience and from their reflection on that experience’33; ‘us[ing] experiential learning methods that place students in the role of a lawyer’;34 ‘expos[ing] students to practical aspects of legal 29 bloch, f. s. (2011) ‘a global perspective on clinical legal education.’ education and law review, 4. 17, p.2; for an example of an uptake of this in a global south (south africa, china, india) cle study, see sarker, s. p. ‘the underprivileged: the social justice mission for clinical legal education in india.’ international journal of clinical legal education, 19. 321-339. 30 above n9, p.41. 31 murdoch university, clinical legal education, clinical courses offered. retrieved 27th january 2014 from <http://www.murdoch.edu.au/school-of-law/clinical-legal-education-scales/clinical-legaleducation/>. 32 ibid. 33 ibid. 34 bloch, n29, p.1. reviewed article 20 workplaces’;35 and offering a ‘study of law and lawyering in context’36 as opposed to the study which is offered in doctrinal lectures and examinations, to cite a few representative statements. these different expressions of purpose reveal a shared theme: to provide learning through practical and active experiences of legal work. recognising this, jeff giddings, in one of the more recent theoretical discussions of what constitutes cle, contends that active or experiential learning – as practice-based learning is referred to in pedagogy – is a core feature of cle.37 ‘active learning’ is an umbrella term,38 meaning learning that involves both doing and thinking of a high order i.e. analytic, synthetic and evaluative thinking, and experiential learning is an important mode of active learning. 39 an overlapping term used in cle studies is ‘problem-based learning’.40 this purpose of practical learning shapes the formal characteristics of cle (and, for that matter, plt). there must be practical tasks, there must be learning “by doing”. 35 evans et al. n8, p.42. 36 columbia university, columbia law school, clinics. retrieved 27th january 2014 from <http://web.law.columbia.edu/clinics>. 37 giddings, j. (2013) ‘clinical legal education: learning by doing and reflecting.’ ch. 1 in promoting justice through clinical legal education, justice press, p.14. 38 bonwell, c., & eison, j. (1991) ‘active learning: creating excitement in the classroom’. aeheeri”c” higher education report no. 1. (washington, dc: jossey-bass). 39 marton, f., & saljo, r., above n2; and marton, f., & saljo, r. (1976). ‘on qualitative differences in learning – ii outcome as a function of the learner’s conception of the task.’ british journal of educational psychology, 46, 115-127. 40 sylvester, c., hall, j. and hall, e. (2004) ‘problem-based learning and cle: what can clinical educators learn from pbl?’ journal of clinical legal education, 4. 39-63, p.44: they define problembased learning: ‘problem-based courses start with problems rather than the exposition of disciplinary knowledge. they move students towards the acquisition of knowledge and skills through a staged sequence of problems presented in context, together with associated learning materials and support from teachers.’ reviewed article 21 practical learning also features in variations where cle is not focused on doing casework but on legislative drafting or law reform advocacy: examples in the literature include the legislation clinic at china’s northwest university of political science and law41 and the legal policy clinic at whittier law school in the usa.42 moreover, the literature shows that not all cle programs base their practical learning activities on advising actual clients or proposing redrafting of actual legislation, even in china. 43 rather, there are variations of cle which use “realistic but not real” scenario/simulation-based clinical activities. indeed, chavkin claims simulations are often included in clinical legal courses,44 although scenario-based cle is still debated and evans et al contend that cle is the sub-type of ‘simulated practical legal training’ defined by its use of ‘real legal problems’. 45 scenario-based cle is nevertheless focused on learning by doing, and can be a practice-based variation of the expositionapplication pedagogy used more generally in legal studies. this study is premised on a view that splitting hairs between “real” practical legal education (cle on its narrow definition) and scenario-based practical legal training (cle on a broader definition) is unhelpful in achieving the aim of sharing relevant knowledge and experience from around the word, and exploring potentially useful innovations and alternatives. 41 anon., n14; also, in pottenger, n11, p.69. 42 patton, w. w. (2011) ‘getting back to the sandbox: designing a legal policy clinic.’ international journal of clinical legal education, 16. 96-128. 43 see the harvard law review’s descriptions of cle models in china, in the introduction and n14. 44 chavkin, d. f. (2002) excerpt from clinical legal education textbook for law school clinical programs: pilnet section b.6. 45 evans et al., n8, p.40, see also p.43. reviewed article 22 there are many examples of usage of a more inclusive definition of cle. for example, in the literature, landsberg describes cle students working on scenarios based on real client interactions at the china university of political science and law.46 these examples include some from china, showing that a precedent for scenario-based cle exists there. in the cle self-description discourses, it can be seen also. for example, the university of southern california notes that hypothetical and actual casework both comprise its ‘clinical’ legal education: ‘the usc gould school of law offers two types of clinical training: classroom courses that include simulated exercises, and supervised casework with actual clients’.47 in any case, the examples from the literature and law schools themselves affirm giddings’ contention that learning by doing is central to cle. moreover, giddings’ definition emphasises not only that students of cle must be exposed to practical situations from which to learn, but that their learning must incorporate and foster reflection.48 this has been more recently re-emphasised by giddings with co-authors: ‘optimal clinical legal education involves a circular sequence of experience, reflection, theory, practice, and then further reflection’. 49 similarly, chavkin claims that the pedagogic goal of clinical legal education is to create ‘reflective practitioners’50 and 46 landsberg, b. (2011) ‘”walking on two legs in chinese law schools”: a chinese / u.s. program in experiential legal education.’ international journal of clinical legal education 15. 38-57. 47 usc gould school of law, why usc law, clinical programs, retrieved 27th january 2014 from <http://weblaw.usc.edu/why/academics/clinics/>. 48 giddings, n37. 49 evans et al, n8, p.7. 50 chavkin, n44, section a. reviewed article 23 spencer notes that written reflection is important in addition to debriefing in clinical legal education.51 reflective learning has also been emphasised in studies of plt: for example, burke and zillmann note a recent report on plt in hong kong recommended “greater emphasis … on the development of reflective learning habits”.52 giddings’, chavkin’s, spencer’s, and burke and zillmann’s emphasis on reflection accords with the pedagogic literature: reflection is a central component of active/experiential learning, necessary to transform doing into learning by doing: unesco explains that ‘[r]eflection is the key to learning from experience because it consciously focuses our attention on what we have learnt and thus consolidates it’.53 in addition to reflection, experiential/active learning methods include discussion over materials, debate, role-playing and collaboration. the use of simulated real-world events typifies active learning in stewart-wingfield and black’s study.54 this sort of learning is not necessarily better than passive learning in all contexts,55 but ‘active course designs, specifically, an experiential design, result in students perceiving their learning to be more meaningful to their future jobs’, as stewart-wingfield and black’s 51 spencer, n4, p.183. 52 burke and zillmann, n9, p.34 53 unesco. (2010) ‘analysing the experiential learning process: teaching and learning for a sustainable future’ retrieved 21st february 2014, 2014, from <www.unesco.org/education/tlsf/mods/theme_d/mod20.html?panel=3#top>. 54 stewart-wingfield, s., & black, g. s. (2005) ‘active versus passive course designs: the impact on student outcomes.’ journal of education for business, 81(2), 119-125. doi:10.3200/joeb.81.2.119-128. 55 michel, n., carter iii, j., & varela, o. (2009) ‘active versus passive teaching styles: an empirical study of student learning outcomes.’ human resource development quarterly 20(4, winter), 397418, p.413. reviewed article 24 study of business students found.56 legal education is analogously vocational, and therefore law students are also likely to perceive experiential learning to be more meaningful than passive learning to future jobs. because experiential learning is integral to the purpose of cle (and plt), key characteristics of cle activities include (but are not limited to) the following characteristics: (a) learning activities that allow for experiential learning, especially a real or hypothetical client/audience with a problem to be overcome; (b) feedback from a more experienced person; and (c) reflection on the experiences and the feedback. and what of the university setting as a characteristic? notably, a leading cle scholar, giddings does not define a specific or leading role for universities in cle, while emphasising its active learning nature: ‘clinical legal education involves an intensive small group or solo learning experience in which each student takes responsibility for legal or law-related work for a client (whether real or simulated) in collaboration with a supervisor. structures enable each student to receive feedback on their contribution and to take the opportunity to learn from their experiences through reflecting on matters’57. 56 stewart-wingfield & black, n54, p.123. 57 giddings, above n37. reviewed article 25 however, the studies and actual clinics about which giddings is writing are university based, so perhaps he does not feel the need to explicitly state that universities are an essential feature of cle. however, the path for innovation being explored here is alternatives that may satisfy the experiential legal learning elements of giddings’ definition even without a university in charge; they should also share cle’s ultimate purposes. the ultimate purposes of practical legal education if we consider experiential learning as a means to an end, not an end itself, we can shift our gaze to the ultimate purposes of cle. in many cases in the literature, an intermediate purpose of experiential learning couples neatly with either or both of two further purposes, the vocational preparation of lawyers, and providing legal services in the public interest. in looking at these emergent, shared purposes, rather than definitions, we also see that the cle/plt division is blurred such that maintaining that division for this study is not useful. to begin, vocational training is unequivocally a purpose of plt58 but also a stated purpose for many cle providers: the law school of china’s central university of finance and economics, for example, now boasts of its ‘special emphasis on case teaching and the “legal clinics” education [sic] … for all-round development and vocational education’ to distinguishing it from 58 see e.g. burke and zillmann, n9; evans et al., n8, p.43. reviewed article 26 most chinese law schools.59 moreover, a clear, shared purpose that emerges from the scholarship and from cle providers’ own discourses is that which i will summarily call a public interest purpose. this is expressed variously scholars and educators as providing ‘service learning’60; ‘justice access’61; ‘social justice’62; or ‘support[ing] the wider and more fundamental task of maintaining the rule of law’63. an ambition of seeding a culture of public interest lawyering amongst lawyers of the future lies behind many anglo-american law schools’ cle programs, and behind the more recent emergence of cle in europe;64 a related, public service mindset has likewise driven cle in the former soviet states.65 in the chinese context, tam takes a public interest purpose as an essential purpose of cle in hong kong,66 and phan argues it is an important purpose in mainland china (and elsewhere in the world) because cle is part of changing the legal culture.67 often, this public interest purpose is met in the design of cle tasks by having students advise people who face hurdles accessing the justice system: there are examples of this around the world, including from china, 59 ‘the introduction to the law school of cufe’, http://law.cufe.edu.cn/en/, updated 22nd january 2016, accessed 8 august 2017. 60 evans et al, n8, p.2 and 42. 61 spencer, above n4, pp.181-182. 62 examples throughout ashford, c. and mckeown, p. (eds) (2018) social justice and legal education. cambridge scholars publishing. 63 evans et al, n8, p.2 and 42. 64 global network for public interest law. (2012) ‘pilnet welcomes the european network for cle’ retrieved 28th february 2014, from <http://www.pilnet.org/project-updates/166-pilnet-welcomes-theeuropean-network-for-clinical-education.html>. 65 wortham, above n6, p.622. 66 tam, n1. 67 phan, n12, pp.150-152. for a similar argument about cle, social justice and legal culture reform elsewhere, see ch14 by o. m. osinibi and ch15 by m. grimes in ashford and mckeown (eds) n62. reviewed article 27 such as tsinghua university law school’s legal clinics. 68 but the point of public interest cle is not simply to use student labour to increase the public’s access to the justice system and legal advice. rather, the purpose of having students take on lawyers’ roles is so that they can learn more broadly the social impact of the laws they are studying and of the role of legal rights, legal illiteracy and inequality in their society. that is, the experiential learning achieves the purpose of serving the public interest not only because it provides assistance to specific clients in need but because, through experiencing the public interest element of lawyering in a social context, students are socialised into a publicly interested culture of legal practice, which nourishes that culture for the future. for some, this public interest purpose defines cle. in their leading recent book, evans et al. maintain that cle is different from other practical legal learning (e.g. plt or work-integrated learning) in that only cle ‘is intended to develop a critical and analytical consciousness of law’, going beyond a ‘“how to” approach’ and ‘strengthening the academic phase of legal education in the interests of students and clients’69. that is, of the various practically based forms of legal education, only cle provides a social service and targets the maintenance of a socially aware, publiclyinterested legal culture. however, others frame this sort of public service as integral to the legal vocation and therefore integral to vocational legal training, not only to 68 pottenger, n11, p.71. 69 evans et al., n8, p.43. reviewed article 28 cle: for example, burke and zillmann argue that imbuing ‘public service’ values is are part of the ‘gold standard’ for common law plt70. this challenges cle’s monopoly on publicly interested practical legal education. even more importantly, in the context of this case study, and the wider exploration of civil-society-led cle to which it contributes, the distinction between cle and other forms of practical legal education without a public interest orientation falls away, because civil society organisations are often – arguably by definition – publicly interested. specifically, here, yilian center was deliberately trying to increase social service lawyering by developing a critical consciousness of law amongst both student and professional participants in order to increase their interest in, and skills for public interest advocacy, within a legal culture weak in those respects. akin to classical cle program, it sought to strengthen legal education during the academic phase in the ultimate interest of not only students but clients and other beneficiaries of public interest advocacy in china, but in a radically different way that did not rely on university leadership or backing. in light of the literature, this study therefore takes experiential legal education to be characteristic of cle, dovetailing with either/both of a vocational preparation and a public interest purpose. additional characteristics of cle, in its typical university context, are the assessment resources of formal education: grades and course credits. 70 burke and zillmann, n9, p.41 reviewed article 29 university based characteristics of cle: assessment and motivation in university led cle, formal assessment (including pass/fail grading) is ever-present as one kind of motivational resource but this does not mean that formal assessment needs to be an essential component of cle; few cle educators would posit grades as the only reason they offer their courses, or the only reason students take them; actually, many of china’s earliest university-led legal clinics gave students ‘no academic credit for their work’71. in looking to expand cle beyond universities we must confront the fact that these motivational resources may not be available at all. in designing yatt, therefore, care was taken to create motivation which could stand in place of the academic grades and credits which are characteristic rewards in formal tertiary education. in educational theory, learner motivation can be analysed within a framework of various learner orientations and their corresponding interests, aims and concerns. such a framework is represented here in figure 1, which is from tertiary education teacher training materials.72 this framework is based on the studies of taylor and of beaty, gibbs & morgan, foundational educational science literature which theorises that students concurrently have some or all of four orientations to learning: vocational; academic; personal; and social.73 this literature also theorises that certain 71 gibson, n1, p.34. 72 macquarie university learning and teaching centre, module 1: learners and learning, foundations in learning and teaching course materials (2015), p.5. 73 taylor, e. (1983). orientations to study: a longitudinal interview investigation of students on two human studies degree courses at surrey university. unpublished ph.d. thesis, university of surrey; reviewed article 30 intrinsic and extrinsic interests correspond to these orientations. 74 thus, pedagogic theory – chiefly this and related learner orientation models – predicts that for an educational activity to work well, it should motivate students and/or respond to their existing motivations. better activities will respond to multiple learner orientations, and to both the intrinsic and extrinsic interests corresponding to those orientations, because learners have varied combinations of orientations. this theory predicts that the kind of formal grading and accreditation which a university led cle can offer (but which civil-society-led activities cannot offer) will likely motivate learners’ because it caters to learners’ vocational, academic and personal orientations. specifically, as represented in figure 1, formal cle course accreditation is part of attaining a qualification, which is theorised as an extrinsic interest within a vocational orientation; formal accreditation is part of educational progression, which is theorised an extrinsic interest within an academic orientation; and the grades for a cle course (and any feedback offered) are forms of compensation for learning and proof of new capability, which are theorised as extrinsic interests within a personal orientation to learning. beaty, l. gibbs, g. & morgan, a. (2005). ‘learning orientations and study contracts’ in marton, f, hounsell, d & entwistle, n (eds) (2005) the experience of learning: implications for teaching and studying in higher education, 3rd edition (online). edinburgh: university of edinburgh, centre for teaching, learning and assessment, 72-86. retrieved 9th july 2007 from http://www.tla.ed.ac.uk/resources/eol.html. 74 ibid. http://www.tla.ed.ac.uk/resources/eol.html reviewed article 31 orientation interest aims concerns (examples) vocational intrinsic training relevance to course or future career extrinsic qualification recognition of the qualification’s worth academic intrinsic intellectual interest choosing stimulating lectures extrinsic educational progression grades and academic progress personal intrinsic broadening or self-improvement challenging, interesting material extrinsic compensation or proof of capability feedback and passing the course social extrinsic having a good time facilities for social activities, sport etc figure 1. orientations to learning. a challenge for non-university led cle in general, then, and specifically for yatt, is to build extrinsic motivators into the educational activity without relying on formal assessment and accreditation. the aim of the yatt designers was to do so by reviewed article 32 structuring the module as a competition, with scores and rewards in the form of recognition in the bulletin and in selection for the grand final activity. the winners received additional rewards (publication and internship opportunities through yilian centre.) we also made sure we provided a certificate of participation to all students in a ceremony at the final activity in order that they could have proof of their learning in future contexts (e.g. job or postgraduate course applications). we built in feedback as a core element of each activity, and, provided guidance to the professional volunteers on how to give feedback, which provides a form of extrinsic, personal motivation other than passing the cle course. we also tried to emphasise the intrinsic motivations in yatt, knowing that we could not rely as heavily as a university can on extrinsic motivation. for example, amongst other measures, we explicitly communicated the training elements of yatt and the activities links with the centre’s real work, to spark an intrinsic vocational interest, and the facilitators aimed to create an enjoyable and friend-making environment at all activities to create a social motivation. we built in motivators and rewards for the professional volunteers, also. in this case study, the yilian centre sought to take on the role of running a public interest practical legal education program. because yatt was designed to meet a need for more public interest lawyering and for more experiential learning of law, it appeared then (and still appears) to the author and others organising and designing yatt as similar in some fundamental ways to university led cle. the key question to examine, however, is whether the purposes and characteristic components of cle reviewed article 33 (derived externally from this literature) were present in the experience of the participants: did the students and professional volunteers experience yatt as akin to a cle course; did they evaluate this alternative positively; and what motivated them to participate if not university grades and credits? the next section explains the method of investigating these questions by applying themes identified through this literature review in an analysis of feedback survey data. methodology overall, i undertook two forms of qualitative analysis (recurrent thematic and directed content analysis) of free-text responses in 72 completed feedback questionnaires held by yilian centre after having been returned by the participants of the 2011 and 2012 yatt cohorts, as well as a simple quantitative analysis of the multiple choice responses on these same 72 questionnaires. these questionnaires were designed to assist yilian centre reflect on the program during its implementation; they were not designed for statistical research purposes. as such, this study does not rely on a deep quantitative analysis. in particular, the surveys were not designed for regression analysis and the overall number of possible respondents can be estimated (see below) but not verified, because no count of their distribution was recorded. responding was not obligatory but the utility of the feedback was explained to participants and responding to the survey was requested; the author observed very high rates of response at activities. given the relatively sparsity of experiential cle in reviewed article 34 china, and the relatively sparsity of non-university led cle the world over, i determined it was nevertheless important to contribute this case study to the international literature in order to develop the literature, and the practice, of alternative models of cle. this study was therefore designed so that it was not essential to count precisely how many questionnaires were completed as a proportion of those distributed. with about 50 participants in each yatt cohort (including students and professional volunteers), and with some professional volunteers participating in both 2011 and 2012, these 72 responses represent a majority of yatt’s estimated 80-100 participants. moreover, the feedback surveys are a dataset well-suited to allowing for insight into participants’ views on this unusual cle, and participants’ views are rare in the cle literature. the author therefore turned to the more suitable method of directed content analysis in order to make a worthwhile study of this data; this analysis “mines” the questionnaire responses as an extant source of discursive feedback data, and for simple quantitative indicators. the steps of data processing and the various analyses are detailed below. together they were used to reveal key themes in the discourses produced by the participants, to see how participants saw yatt and what they felt were its advantages and benefits (if any). this study’s emphasis on qualitative analysis is adapted to the available data, and follows cho’s argument that ‘[t]he nature of qualitative research – pragmatic, interpretive, and grounded in the lived experiences of people – enables the researcher reviewed article 35 to understand people through whom to interpret a particular social phenomenon’75. the phenomena here, of course, is the development of cle and public interest lawyering in china. these feedback questionnaires were provided in hard copy to the students and volunteer participants after three activities in the first yatt program (mock trial, public speaking and client interviewing) and after two activities in the second yatt program (mock trial and public speaking). the questionnaires – which were provide din both mandarin and english – did not ask for names, but they did ask whether the participant was a student or professional volunteer, and then they asked a series of multiple choice and open-answer questions seeking feedback about both that day’s activity and yatt overall. the full questions are presented along with the responses, below. the questions were changed slightly from 2011 to 2012 to improve the clarity of feedback. the 2012 version of the questionnaire also asked the language of the activity and the date of participation, to better record which groups of participants had provided feedback. the collected responses were then kept by yilian centre. to process the data, the author translated all the mandarin responses into english. feedback from both students and professional volunteers had also been provided to yilian centre in informal discussions, emails and public testimonials from participants and audience members at the first yatt grand final. these additional 75 cho, j. (2017) english language ideologies in korea: interpreting the past and present, springer, s1.4.1 (non-paginated online edition); original citing marshall, c. & rossman, g. b. (2006) designing quantitative research. sage 2006, p.6. reviewed article 36 forms of feedback are worth noting from a program design perspective, as they were a means for both improving the program and building a sense of community amongst participants and the broader network of the host organisation. these forms of feedback, however, were not systematically recorded so they have not been included in this analysis. to further prepare the questionnaire response data for analysis, the 72 responses were then divided by activity (mock trial, public speaking or client interviewing) and by year (2011 or 2012). there were 43 responses in 2011 and 29 in 2012, most of which were from the mock trial (see figure 2). i then the tabulated the multiple-choice answers for a quantitative analysis of feedback. figure 2. overview of each year’s feedback questionnaire responses, by activity, as a percentage of total questionnaire responses. 0% 20% 40% 60% 80% 100% mock trial client interview public speech 2011 2012 reviewed article 37 for the next step, the analysis of the free-response questions, i listed all the responses, grouped similar responses under themes, assigned short-hand code names to these themes, and counted how many of each theme of responses appeared. this is a recurrent thematic analysis76 and standard practice in it is to discount one-off (i.e. nonrecurrent) themes. shared themes, some more prominent and some less, thus emerged from the responses. this method sits within the reflexive ethnographic approach.77 finally, a ‘directed content analysis’ 78 was coupled with the recurrent thematic analysis of the emergent themes. for this, the data responses were analysed for comments aligning with theme labels (codes) representing content directed by the literature review. there were codes representing the experiential learning purpose and ultimate purposes of cle identified in the literature review – practical learning; experiential learning; feedback from experienced person; reflection; vocational legal training; public interest – and codes representing the learner motivation themes, namely the seven aims listed in figure 1: training; qualification; intellectual interest; educational progression; broadening or self-improvement; compensation or proof of capability; and having a good time. this directed content analysis was not looking to match exact expressions in the literature with 76 lincoln, y. s., & guba, e. g. (1985) naturalistic inquiry, sage. 77 burawoy, m. (1991) ethnography unbound: power and resistance in the modern metropolis, university of california press. 78 hsieh, h.-f., & shannon, s. (2005) ‘three approaches to qualitative content analysis.’ qualitative health research, 15(9), 1277-1288. reviewed article 38 those in the feedback, but to identify alignment between the feedback and the literature on learning and, specifically, on learning through cle. results and critical analysis of participants’ feedback this section reports the results and critically analyses participants’ views on five aspects of yatt which we explicitly asked about in the surveys: the most valued aspects of the yatt activities (analysed below in the first subsection); training materials (second subsection); skills development (third subsection); negative aspects of yatt (fourth subsection); and the yatt project overall (last subsection). in analysing the responses from each of these five parts of the survey, i first quantitatively examine the multiple-choice responses, followed by the qualitative analyses of the free-response feedback. i then critically analyse the five subsections’ most unexpected findings in section 3’s discussion, and their implications for the field are noted in conclusions and contributions (section 4). before proceeding with these layers of analysis, some preliminary observations about patterns in the responses will set the scene. overall, in both 2011 and 2012, most participants provided positive responses about most of the aspects of yatt covered in the multiple choice questions. most respondents found the training and preparatory materials ‘appropriate and helpful’. most said they ‘developed activity-specific skills’ through the activities. in addition, most respondents ‘enjoyed’ the activities. what they enjoyed most was practical reviewed article 39 learning and feedback, as the free-response questions and an additional multiplechoice question in 2012 showed. building on this, the thematic analysis of the freeresponse feedback shows that participants identified various legal skills as the primary activity-specific skills that they had developed, but also linguistic/communicative skills. overall, four prominent themes emerge, and i coded them as learning; professionalism of the activity; positive experience; and negative experience. within these major themes, multiple sub-themes were often found, as shown in appendix a. the sub-themes associated with learning were especially strong across the dataset, meaning they were present in a particularly high number of responses. comments relating to the sub-theme practice-based learning were so dominant that no nonpractical learning emerged as a theme. thus, the recurrent themes aligned with the content directed theme of practical learning from the literature. practice-based learning sub-divided into responses on the themes of practice-based legal learning and practice-based language learning. this latter theme may be a surprise to readers, as is not widely identified as a component of cle in the literature however, i have analysed it as a form of alignment with the directed theme of vocational legal training; we will return to this point in section 3’s critical discussion. classed within each of the sub-themes practice-based legal learning and practice-based language learning are more specific (although not unique) responses. thus, for example, reviewed article 40 participants commented on practice-based legal learning either generally or in relation to specific aspects of participating in yatt such as defence, applying knowledge to facts, building trust, court procedure and understanding laws and legal processes. the reader will see that these specific themes appear under practice based legal learning in the appendix a table alongside another specific theme marked in italics: ‘more practice time needed**’. in this table, italics represent a negative evaluation in the feedback, whereas plain text represents positive feedback. the asterisks show that this theme could equally be classed under another theme; the asterisks show us where this theme is repeated in an alternative location within the table. overall, the most recurrent sub-theme was feedback from professional volunteers. responses relating to this theme were either positive, and about getting feedback from the professional volunteers, or negative and about wanting more feedback from the professional volunteers. feedback from professional volunteers was an emergent rather than directed theme. however, learner orientation theory (visualised in figure 1) explicitly relates feedback to compensation or proof of capability, which is one of the directed themes of analysis. in a practical learning context, feedback is arguably also part of training, educational progression and self-improvement, all aims identified in the literature review which became directed themes for this analysis. thus, another alignment between the two types of thematic analysis of the response data appeared, strengthening the finding that participants’ perceptions of yatt reviewed article 41 aligned with one of cle’s core characteristic, practical learning, with the purpose of vocational legal training, and with educational theory on learner motivations and aims. as the detailed analysis below progresses through the questions, i will draw attention to the building evidence for this finding of alignment. feedback on valued aspects of activities the questionnaires began with multiple choice questions enquiring into which aspects of yatt the participants themselves had valued (set 1). in relation to that day’s activity, participants were asked: ‘what was your feeling about the [mock trial/impromptu speaking/client interviewing/labour negotiation/debate] activity? a. i enjoyed it very much; b. i somewhat enjoyed the activity; c. i somewhat did not like the activity; d. i did not like the activity at all.’ the responses were very positive, for example with all 29 of 2011’s mock trial respondents answering “a” or “b”. this was consistent with the smaller batches of responses from the public speaking and client interviewing activities that year: all 10 public speaking respondents and all four client interviewing respondents answered reviewed article 42 “a” or “b”. similarly, in 2012, 27 of 29 mock trial and public speaking respondents answered “a” or “b”. some students who completed feedback questionnaires in 2011 on the mock trial had also participated in the debate activity that week, and six of these students nominated debating as their favourite aspect of the week’s activities, over mock trial. these responses indicate a positive reception for the debating activity, however, there are no questionnaire responses for the debate or labour negotiation activities. overall, these multiple-choice responses about enjoyment suggest that participants’ experiences were aligned with ‘having a good time’, theorised as an interest factor for socially oriented learners (see ‘literature review: the purposes of clinical legal education, generally and in china’, above). set 1’s free-response question allowed us to explore with more specificity what aspects of yatt the participants, and to find emergent themes aligning to the contentdirected theme having a good time. participants were asked what aspect of that day’s activity they enjoyed. feedback from professional volunteers was a theme that recurred often as an aspect enjoyed by the participants across the mock trial, public speaking and client interview activities (see figure 3). reviewed article 43 aspect nominated as that most enjoyed activity and number of respondents professional volunteers’ feedback professionalism of the activity (including professionalism of having professional volunteers acting as judges). 2011 mock trial (n=29) 8 10 2011 public speaking (n=10) 4 2011 client interviewing (n=4) 3 2012 mock trial (n=10) 4 figure 3. activities for which professional volunteers featured in set 1 free-response feedback, counted by coded theme. figure 3 shows that the free-responses in set 1 particularly valued the professional volunteers’ contributions to yatt, including their feedback, their specialized knowledge and the professionalism they added to activities. that so many responses prioritised the feedback available is especially telling. it indicates that both extrinsic and intrinsic personal interests (see figure 1) were being served. because receiving feedback featured strongly as a valued aspect in the 2011 responses, the organisers included a question specifically about professional volunteers’ feedback in the 2012 questionnaires: this first appeared in the 2012 public speaking questionnaires. respondents were asked whether they thought the feedback from the reviewed article 44 judges, who were the professional volunteers, was useful and helped them improve,79 with the multiple-choice answers being: a. very much; b. a lot; c. not much; d. none at all. the majority of the 2012 public speaking participants (eight of 15) responded “a” (very much), with another 5 responding “b” (a lot), and only 1 responding negatively (with “c” not much), and one not responding. these responses were consistent with the dominance of the theme of professional volunteer’s feedback being valuable across the 2011 responses. (the professional volunteers’ contributions did not emerge strongly in 2012’s public speaking free-responses, perhaps because participants’ views on that were covered in this new multiple-choice question.) a response similar to nominating feedback, but sufficiently different to warrant coding under a separate theme in the recurrent thematic analysis, was the nomination of ‘learning’ as the most enjoyable aspect of an activity. in 2011, three of the 29 mock trial respondents nominated ‘learning’ (including one who further explained that learning was important as he/she was not a law major and therefore could not otherwise access such learning). the theme of learning also featured strongly in the 79 the question posed was: ‘你认为评委给你的反馈有用并且帮助你提高演讲技巧吗?’ reviewed article 45 responses for public speaking in 2011, so too did having an opportunity to actually do public speaking and to practice public speaking skills. responses about doing/practicing public speaking are coded under the learning sub-theme practicebased language learning. this theme’s prominence was again illustrated in the 2012 public speaking responses, with ‘learning through the experience’ being nominated by two respondents, coded as practice-based learning. practical aspects of english-language learning were nominated by three of the 2012 public speaking participants, and these were coded as practice-based language learning. specifically, the language learning aspects nominated in the 2012 public speaking responses included that the activity helped the students’ english in general; that participants learnt what was needed for an english public speech; and that providing the topic bilingually was more helpful than providing a monolingual topic. feedback on training materials in set 2 of the questionnaire we asked all 2011 respondents, for all activities: consider the preparation materials/training sessions you were provided with before the activity. were they: a. very appropriate and helpful; b. somewhat appropriate and helpful; reviewed article 46 c. somewhat inappropriate and unhelpful; d. not very appropriate or helpful? in 2012, the same question was asked but without reference to training sessions i.e. participants were asked to consider preparation materials only. broken down by activity, the responses remain generally positive across each activity in 2011 and 2012. of the 43 responses from 2011, the vast majority (39 participants) answered “a” or “b” (25/29 responses about mock trial, 10/10 responses about public speaking and 4/4 responses about client interviewing). similarly, the second cohort of students (2012) were positive, overall, about the activity materials. of their 29 responses about the mock trials, 24 answered “a” or ‘b”, and of their 15 responses about public speaking, all answered “a” or ‘b”. in 2012, but not in 2011, respondents were additionally asked another question about the materials: how suitable the public speaking topics were. the multiple-choice answers were: a. very suitable; b. basically suitable; c. basically unsuitable; d. no suitable.80 80 originally, ‘a. 非常合适; b. 基本合适; c. 基本步合适; d. 不合适’. reviewed article 47 three respondents chose “a” (very suitable) and 11 chose “b” (basically suitable), with no negative responses; topic design, an aspect of the training materials, therefore appears to have been functional. thus, the multiple-choice feedback in set 2 of the questionnaire provides an indication that the yatt educational materials were helpful and appropriate, at least for mock trial, public speaking and client interviewing. while these multiple choice answers do not directly tell us whether yatt was seen as having the purposes of cle, it nevertheless establishes yatt was experienced as an educational experience; the participants were satisfied that they were being provided training and/or materials which prepared them to try new tasks. moreover, this response data indicates – without being able to compressively establish – that for most respondents the motivational aim of training (theorised as an aim of vocationally-oriented learners: figure 1) was provided. the feedback on developing skills through yatt, dealt with in the following section, adds further weight to this supposition. feedback on developing skills in 2011, students – but not professional volunteers – were asked this set 3 question about developing skills: to what degree do you feel that you have developed effective activityspecific skills? a. a great deal; reviewed article 48 b. quite a lot; c. not a lot; d. not at all. the single biggest cohort of respondents were from the mock trial activity, and the majority (n=19/29) of them answered “a” (n=6) or “b” (n=13), as figure 4 visualises. that is, the majority of students felt they had developed some level of skill specific to the mock trial activity. the majority of public speaking and client interviewing students, too, felt they had developed some level of skill specific to those activities. figure 4. 2011 mock trial feedback questionnaires: question 5 assessing mock trial-specific skills. a rephrased version of this question was used in the 2012 questionnaires: a=a great deal b=quite a lot c=not a lot d=not at all unclear response no response reviewed article 49 how much did your [mock trial/impromptu speech] skills improve?81 a. a great deal; b. quite a lot; c. not a lot; d. not at all. the responses were, like in 2011, mainly positive for mock trial (14/14 responding “a” or “b”), but, contrasting with the other data, less positive for public speaking. six of 2012’s 15 public speaking students responded “a” (n=5) or “b” (n=1), but five answered “c” (not very much), two gave no response, and two responses did not select from the multiple choice options but gave a free response. these two wrote that they needed more practice to improve their skills. this was included in the thematic analysis, and, coded as ‘more practice needed’. the questionnaire invited those answering “c” or “d” to provide further details; unfortunately, all but one declined to provide further details. one who had responded “c” (not very much) wrote that it was because he or she had studied the content before. even with the comparatively less positive results for 2012’s public speaking, the multiple choice responses overall affirm that participants felt that activity-specific skills were developed. this supports the argument that yatt was experienced as 81 ‘你觉得你际演讲的技巧提高有多少？ a. 非常多; b. 很多; c. 不太多; d. 一点也没有.’ reviewed article 50 practical learning. set 3’s free-response analysis, below, clarifies that this was an experience of practical legal learning. in both years, the students were then asked to freely nominate which activity-specific skills they had developed. in relation to the mock trials across both years, the most prominent skills in the responses were legal practice skills including defence, applying legal knowledge to facts and court procedure. in 2011’s client interviewing, other similar skills emerged, such as building trust and understanding the law and legal processes (all coded as practice-based legal learning). specifically looking at the responses identifying applying legal knowledge, this is ‘exposition-application’ pedagogy, 82 and it is characteristic of legal education (not just cle) as well as legal practice. these responses indicate yatt was experienced as legal education. the second most prominent set of mock-trial-specific skills students nominated were language skills, including expression and organising language. confidence and logical reasoning also featured in a few responses. these fall within the theme of practice-based language learning. public speaking students’ feedback was also about developing language skills as well as legal skills. in 2011, in the responses about the impromptu public speaking, students nominated as the activity-specific skills they had developed: oratory skills including speaking clearly; organising ideas; responding quickly; and adapting to being on stage. in addition to these skills, one 2011 public speaking student and four 2012 public speaking students specified their 82 chavkin, n44. reviewed article 51 foreign language skills as an area that had improved through the activity, noting their ability to express themselves improved, and listing improvements in speaking speed and rhythm, communicating through facial expression and gestures, speaking with feeling, and language use. in 2012’s impromptu public speaking, a number of respondents nominated their general ‘public speaking skills’ as a skill that improved and nominated the specific skills of thinking up content; applying legal knowledge to a problem; improved confidence/skills for dealing with nerves; and improved speaking style. thus, the themes of practice-based legal learning and practice-based language learning both emerge for the same activities, and their interrelationship emerges also. moreover, recalling that practice-based learning is a theme that emerged strongly in the feedback responses on valuable and enjoyable aspects of yatt (set 1) and the set 2’s multiple choice responses suggested the training elements of yatt were experienced as education, set 3’s feedback analysis reveals consistency. these detailed results are a building picture of yatt as experienced primarily as practical legal education. negative feedback in both years, the questionnaires also asked which aspect of the activity the participants did not enjoy (set 4). most of the disliked aspects of mock trial, public speaking and client interview activities were nominated uniquely (only by one reviewed article 52 respondent) and therefore could not be thematically analysed. however, one aspect which multiple participants did not enjoy in the 2011 mock trials was that the fact scenarios were not sufficiently detailed. in 2012, in relation to impromptu public speaking, common negatives included not having enough preparation time; not having enough opportunity to practice and thereby improve; wanting more feedback from the professional volunteers; and wanting mandarin-language feedback for english-language speeches in order to understand the feedback better. some of these negative aspects – especially not getting enough practice – certainly suggest that yatt failed to fully realise practice-based learning, but they also suggest these participants thought yatt should be practice-based. taken together with the positive responses to the questions analysed above, it is clear that yatt was not seen as devoid of practice-based learning, just not always practical enough. further, as noted in the section on ‘feedback on valued aspects of activities’, above, feedback is theorised as fuelling an interest in learning for personally oriented learners (see figure 1). while yatt course designed included written and oral, quantitative and qualitative feedback, satisfying more students’ expectations as to feedback could have further motivated students. reviewed article 53 feedback on the overall project rounding out the questionnaire, set 5 asked respondents for their overall, freeresponse impressions of yatt.83 across all activities, the majority expressed a very positive sentiment (e.g. ‘great!’), and a smaller group expressed a mildly positive sentiment (e.g. ‘it’s ok’). students again expressed happiness to have practiced legal skills and some expressed gratitude for the opportunity. a sizable minority took this question as an opportunity to express a positive attitude to the professionalism and specialisation of the volunteers, adding to the positive evaluations of the feedback from the volunteers which came through in the earlier responses (see ‘feedback on valued aspects of activities’). participants also commented that the program was well organised. it was only at this point that two participants noted that the public interest aspect of yilian centre’s work (its ‘non-profitable’ work, as one mock trial student put it) had left an impression on them. these were the only feedback data coded under the literature review directed public interest theme. while yatt may nevertheless have actually served the public interest, the feedback data indicate that, to the participants, yatt was not closely associated with the public interest purpose that the literature holds as significant for cle. 83 set 5 separately asked if participants had suggestions for improving yatt and how to improve yatt’s publicity: those responses are not reported here. respondents were also asked about the suitability of the scheduling of yatt activities; likewise, those responses are not canvassed in this paper. reviewed article 54 finally, common negative comments in the overall impressions included that the materials were not detailed enough, that the number of student participants could be increased, and that students wanted more opportunities to interact (formally) in the activities. making such changes would likely assist yatt, or projects modelled on it, to better motivate students, particularly to foster the interest of socially orientated learners. however, these responses do not suggest that yatt was unmotivating; indeed, wanting more detailed materials suggests interested learners! let us now turn to a discussion of the most significant, transferable findings, including the analyses’ most unexpected finding, that practice-based language learning emerged explicitly and recurrently as a theme of participants’ feedback on their yatt experiences. discussion of findings this section offers a critical discussion of the transferable findings which arose across the analysis of the five sets of feedback, namely findings in relation the non-university nature of the yatt, learner motivators other than university grades, and language learning in cle. reviewed article 55 cle in civil society non-university led cle is novel (and even controversial), as the literature review explained. this study did not ask whether yatt “counted” as cle by being the same as existing models, but whether, in the eyes of its participants, it offered learning and values that echo the way scholars and clinicians define and describe cle. in revealing what is meaningful, and valued, to participants, we can be provided with additional ideas to enrich the range of cle structures, participants and activities, and particularly the range of ideas for indigenising cle to better meet varied local conditions. i derived a number of characteristics of cle from the literature assess the feedback questionnaire data against in the directed content and recurrent thematic analysis. these included cle’s essential, intermediate purpose of practical learning and the important (but not universally present) ultimate purposes of vocational legal training and serving a public interest. because cle’s core form is experiential learning, i looked for responses about characteristic elements of experiential learning including feedback from and experienced person and reflection, as well as about the more general topic of experiential learning itself. the analysis of the 72 feedback questionnaire responses, above, has found that students and professional volunteers who participated in yatt in 2011 and 2012 perceived it not only as educational, but as practical and legally relevant education incorporating real-world activities and personnel. this practical learning was what the participants valued most about yatt. reviewed article 56 in addition, the questionnaire responses show that the professional volunteers fulfilled the role of experienced personnel giving feedback to students, as per the characteristics of active learning which the literature review presented as integral to cle. the data analysis revealed the strong recurrence of feedback as a theme, mainly with a positive value placed by participants on the feedback from the volunteering professionals. there was demand for even more feedback, which would have heightened yatt’s active learning. the analysis did not, however, find reflection emerging as a theme in the feedback (although the 72 completed feedback questionnaires are themselves evidence of participants reflecting, echoing spencer’s direction that written reflection is important in addition to debriefing in cle. 84 ). nevertheless, the public speaking and grand final speaking topics, in particular, were designed to prompt students to critically reflect on aspects on labour law and public interest advocacy in china. thus, participants’ perspectives on experiential legal learning as central to yatt align with the literature’s perspectives on experiential learning as central to cle, but the alignment was stronger in some respects than others: feedback was present and appreciated but reflection needed further incorporation into activities. moreover, a vocational learning purpose was apparent to yatt’s participants – aligning with cle – but a public interest purpose was not as apparent (in the feedback discourse, at least) – showing an aspect in which yatt failed to strongly align with cle. 84 spencer, above n4, p.183. reviewed article 57 however, looking beyond the explicit feedback data, yatt’s speaking activity topics prompted students to engage with the public interest purpose of yatt. for example, public speaking topics included:  imagine you are a workers’ leader speaking at a government law reform consultation session. tell them why you think that labour-dispatch workers ‘dispatched’ to a company should be entitled to the same pay for the same work as fellow workers directly employed by the company.  imagine you are the leader of your university’s law student body, which is trying to encourage more students to volunteer. give a speech to your fellow students on why they should volunteer at local not-for-profit community centres. thus, although the public interest purpose was largely not commented upon in the data (save for two responses), meaning the data cannot support a finding that yatt was perceived as public interest cle by the students, we do not need to interpret the data as showing that public interest was absent from yatt. bringing the results together, from this internal perspective, yatt displayed key characteristics of cle. this case study is one way of revealing that significant purposes and norms of cle can be recognised by organisations other than universities who, at least in some cases, are in a position to act on that recognition in an attempt to increase the provision, and the impact, of cle. universities are the tried and tested leaders of cle, but thus not the only providers we could think about, and support, in reviewed article 58 future expansions of cle. however, yatt is not a perfect alternative model: the study highlights that yatt had only limited success in prompting students to explicitly identify or value the public interest nature of the program in their feedback. it was also limited in terms of formally including reflection activities to aid the development of reflective legal practitioners. cle adaptations learning from yatt should address these shortfalls. motivations the study also enquired into what motivated the participants, given that universitybased motivational resources were unavailable to yatt, it being run by a civil society organisation. the finding is that, from participants’ perspectives, yatt aligned with many learner orientations and interests theorised in the literature, despite being in a radically different setting. it was in relation to the feedback on feedback that we could most clearly see what interest/motivation had been experienced by participants, as well as in their feedback on the training and skills development they perceived themselves to have undergone. looking at the results from a theoretical point of view, yatt seems therefore to have motivated personallyand vocationallyoriented learners because feedback and training are theorised to correspond, respectively, to those orientations: see figure 1. the (far less prevalent) negative feedback calling for more social interaction within yatt suggests some participants were sociallyoriented and that their motivation could have been better catered to; however, the reviewed article 59 strongly positive feedback in the multiple choice questions, especially in the question on enjoyment of activities, shows that socially-orientated learner motivation was fostered in other ways. my argument is not that cle must always motivate students in the ways yatt did; probably, many university cle courses already do so, in addition to motivating learners through grades and course credits. the key angle to discuss is that these participant responses are not all from students, but also from professional volunteers involved in yatt. yatt was unusual in many ways, but not in demanding active participation from specialists/professionals/practitioners. such participants also need to be and to stay motivated to make the active learning of cle happen in university contexts. indeed, wortham has argued that cle initiatives should build long-term, personal, collaborative connections. 85 this aspect of the study suggests a path for future research on how the crucial, non-student participants in cle projects experience learning, and can be motivated and rewarded by the form of their participation and by their own learning, throughout their involvement, to build-up stronger collaborative connections. 85 wortham, n6, p.677. reviewed article 60 language learning in cle finally, the finding of the strong recurrence of the theme practice-based language learning – about as strong as practice-based legal learning – warrants further discussion. it was an emergent theme rather than one directed by the literature and it reveals the importance of communicative and linguistic aspects of vocational legal training, at least to participants. the emphasis on this theme in the participant responses highlights the value of seeking insider (i.e. participant) perspectives on cle; without the dual methods of thematic analysis this aspect of yatt might have been overlooked, as the literature on cle rarely foregrounds language learning as a significant and deliberate part of cle (that is why there was no corresponding content-directed theme). let us turn back to the skills that participants nominated as having been developed, in response to the set 3 questions. in analysing that set, i noted that legal and language learning were emerging together and as interrelated. some of the skills nominated may appear at first blush to be language rather than legal skills, such as speaking with both style and confidence, speaking clearly, organising ideas, responding quickly, using facial expressions and gestures, and adapting to being on stage/nervous. but lawyers (especially advocates) also rely heavily on these skills, in whichever language they use. it appears that yatt participants were particularly attuned to noticing improvements in these skills and providing feedback about them, perhaps because yatt was offered bilingually and, for many, undertaken in their second language. reviewed article 61 with our focus sharpened by these results, perhaps we can see better that integrating communication skills with legal skills is one way most cle already goes beyond lecture-based legal education. this feedback serves as a reminder that legal practice is in many ways about communication, not only legal know-how, and furthermore that language and communication skills are a facet of a legal education that practice-based learning, more than doctrinal learning, can develop. learning to communicate appropriately is at the basis of practical legal training because communication practices are embedded in lawyering in “real world” contexts. an improved ability to express one’s thoughts, to be confident (authoritative, even), clear and quick off the mark, to effectively emphasise or clarify a message through body language and many of the other language skills these yatt students noted are “soft skills” law students should hope to develop even if cle is undertaken in their first language, in order to improve their ability to work with various clients and in court. the relative invisibility of language and communication skills in cle theory is not necessarily because these are unimportant in reality. i suggest, rather, that the relative invisibility is the product of a disposition well-known in sociolinguistic literature, namely, that non-linguists often mistakenly regard language as something that is simply there and “naturally” learnt. indeed, many existing legal educators may already hope that cle students learn to speak and write and communicate like lawyers, and this finding helps bring that aspiration to the fore. especially in nonanglophone countries, english language may be an important feature of cle task reviewed article 62 design as a vehicle for importing foreign conceptions of lawyering or preparing students for international/transnational legal practice. moreover, other languages of practice can also be developed through practical legal education: in one of the rare, explicit references to language learning in the literature, burke and zillmann note that hong kong’s recent inquiry on plt recommended providing students with “greater proficiency in legal putonghua [i.e. national standard mandarin]”.86 in addition, for scholars writing about or running cle, even in university settings, another transferable lesson here is that cle programs should not be designed or evaluated only against criteria developed by clinicians and scholars. we may be able to improve our cle programs by learning what participants, especially students, value most about cle and open-mindedly working towards goals we had not presaged. conclusions and contributions yatt was a putative cle initiative from outside the university context, and outside the anglophone and common law contexts. given the innovative form of yatt and the need to develop the literature, and the practice, of alternative models of cle, it was important to work with the data available in the form of feedback survey 86 burke and zillmann, n9, p.34. reviewed article 63 responses despite their limited utility for quantitative analysis. the qualitative, thematic analysis of participant perspectives is, itself, a contribution to cle literature. along with the quantitative analysis of the multiple-choice feedback, the qualitative analysis found evidence that the practical learning and vocational legal training purposes of cle were seen to be present in yatt by those participating in it. the students and professional volunteers who participated in yatt in 2011 and 2012 perceived it not only as educational, but as practical and legally relevant education incorporating real-world activities and personnel. the practical learning was what the participants valued most about yatt. however, the another common (but not necessarily universal) purpose of cle, serving a public interest, was largely not commented upon in the data, so the data do not strongly support a finding that yatt was perceived by participants as public interest oriented practical legal education. a critical discussion of these findings in section 3 contributed to debates in the literature about whether cle must engage with real, current matters or may be simulationbased, taking the latter position, and encouraged further exploration of the yet-small field of civil-society-led and alternative cle. in explorations of civil-society-led cle, we must question the distinction made between cle and other forms of practical legal education based on a public interest orientation, because civil society organisations are often publicly interested; yilian centre certainly was, both overall and specifically in offering its own version of practical legal education, in a radically novel version that did not rely on university leadership or backing. reviewed article 64 the study thus contributes to destabilising the distinctions between real problembased and simulation-based cle or, on an even stricter view, between cle as real and plt as only simulations. as canvassed at the start of this article, there are diverse views on these divisions in the literature. there is nothing in the participant feedback data to suggest that yatt was perceived as inauthentic or lacking in educational or vocational relevance, despite being simulation-based. the point for discussion, arising out of these findings, is whether we need to police the boundaries of cle so strictly when simulation-based legal education can be experienced as valuable by participants, as it was in this case, and moreover whether we need to police the boundaries of cle so as to exclude innovations that cede leadership to civil society organisations or engage multiple universities’ students at once, to note some of the atypical features of yatt. these questions are worth considering in further studies, especially if other, more real and/or more traditional cle opportunities are not sufficiently widely available, as in yatt’s case. further, building upon the thematic analysis results and the critical discussion in section 3, this article argues that practice-based language learning be recognised and researched as an important part of experiential legal education and vocational legal training generally, and specifically of cle. communicative and linguistic skills are surely key aspects that educators hope students learn through interacting and doing lawyering (for real or mocked-up) in cle, all the more because these skills are not studied or practiced much in the law school classroom. nevertheless, i noted that the reviewed article 65 literature does not foreground this aspect of cle, whereas the internal perspective examined in this study does. the communication skills which the participants felt they had beneficially practiced in yatt were recognisable as the stock in trade of good legal advocates and advisers. one implication of this finding is that, in countries where a common second language is used at law school and by professional lawyers (typically, this is english), cle course design should emphasise the learning of lawrelated second language and communication skills. educators can even use this aspect of cle as an additional motivator to pique academically oriented students’ intellectual interest and personally oriented students’ self-development (see interests in figure 1). a second implication, for anglophone contexts, is to do the same. even in anglophone nations, legal education could benefit from more explicit recognition of language and communication skills as integral, and cle – given its practical and oftentimes interactive nature – is especially suited to developing them. finally, the study illustrated, empirically, that this atypical, non-university led cle responded to a range of the orientations, intrinsic and extrinsic interests, and aims of learners which are theorised in educational sciences. moreover, although certain sources of extrinsic motivation, including a desire to obtain a vocational qualification or academic grades, could never be met by this program, the feedback did not reveal significant dissatisfaction about this incapacity. rather, this case study shows that civil-society-led innovations in cle can be motivating, enjoyable, and educationally rewarding in the eyes of participants. this can embolden others to further explore reviewed article 66 alternative and atypical ways of achieving the purposes of cle outside of the university context. this may be especially warranted where the socio-legal context is distinct from the global north, anglophonic contexts on which the majority of cle research focuses and within which the more typical university led cle model developed. reviewed article 67 appendix a: overview of themes theme: learning professionalism of the activity positive experience negative experience subtheme: practice-based learning feedback from professional volunteers insufficiencies lower sub theme: practice-based legal learning practicebased language learning getting feedback from profess. volunteers insufficient feedback* activiti es students insufficient feedback* specific themes: defence more practice time needed* expression speaking style professional / specialised volunteers more feedback wanted good/ great overall facts not detailed enough more students applying knowledge to facts court procedure speaking clearly responding quickly well organised*** feedback wanted in mandarin for english medium activities well organised*** more practice time needed** organise more interaction between students building trust understanding laws and legal processes organising ideas / logical reasoning organising language public interest prep time too short confidence and dealing with nerves public speaking skills response to reflection – teaching and learning in clinic another clinical story to tell veronika tomoszková and maxim tomoszek centre for clinical legal education, palacký university in olomouc, school of law, czech republic when stefan h. krieger presented his keynote speech “stories clinicians tell” in 2012 at law school of the palacký university in olomouc (palacký law school), it was the culmination of the complex law teaching conference and very emotional moment for the whole clinical team of palacký law school, but we believe also for professor krieger himself. his efforts leading to establishing the first live-client clinic in central europe at the palacký law school in 1996 will always be the cornerstone of the palacký clinical programme, which was re-started ten years later, in 2006. what is more, the impact of stefan h. krieger together with richard k. neumann from the hofstra law school upon the palacký law school´s curriculum went beyond the original live-client clinic. their book essential lawyering skills[footnoteref:1] which we received in 2005 as a free copy by a chance at a conference on teaching practical skills organized by the ceeli[footnoteref:2] in prague served as one of the sources for the introduction of the compulsory legal skills course. skills courses together with the clinical programme, street-law programme and moot courts are melded into a unique practice-oriented component of the palacký law school´s curriculum. [1: now in its 5th edition: krieger, s.h. (2015) essential lawyering skills: interviewing, counseling, negotiation, and persuasive fact analysis. aspen coursebook series, wolters kluwer.] [2: central and east european law initiative institute] the stories told by stefan h. krieger are extremely important for understanding the pitfalls and challenges of development of legal clinics in central europe, and maybe to some extent also western europe. the story of an unsuccessful attempt to transplant some elements of u.s. clinical legal education bears much edification for anyone designing a new clinic anywhere in the world. this also confirms professor krieger’s claim not to “shy away from identifying our failures, problems, and doubts” and sharing the ways how we coped with them. the much desired re-publication of stefan h. krieger’s article in the international journal of clinical legal education is an opportunity for us to provide a third story, depicting the narrative of palacký clinical programme from yet another perspective, and perhaps making the picture more plastic and complex. the story of re-development of clinical programme at palacký law school shows the importance of institutional memory and perseverance. the palacký law school was re-established in 1991 as the first law school in czechoslovakia based on ideals of democracy and rule of law instead of the communist ideology which influenced the legal education at the law schools operating at that time. palacký law school was supposed to be different, modern and legal clinics were part of this idea from the beginning. but every idea no matter how noble it is including clinical legal education needs the right conditions to thrive. and that is exactly the story of palacký law school and its failures and successes in clinical legal education. professor krieger’s article concludes that the story of palacký clinical programme well demonstrates the “need for slow, grassroots development of clinics rather than close direction by experts from abroad.” we would like not only to confirm that this approach was crucial for sustainability of our clinical programme, but also to add some other important elements. the palacký law school needed to develop its own internal human resources, who, by going abroad and gathering experience, would constitute a team capable of adapting foreign models of legal clinics to the specific czech social, historical and legal context. even twenty years later the czech students still do not represent their clients in court, but this by no means precludes operating successful legal clinic and providing high quality legal aid to the local community. the most important part of stefan h. krieger’s article is the analysis of how clinicians themselves portray clinical legal education and that they are often prone to making the same mistake that they try to eliminate in students – presenting unsubstantiated beliefs as solid facts. the need for deep, serious inquiry into the outcomes of clinical legal education is certainly one of the worldwide trends in clinical legal education, which experienced clinicians like professor krieger helped to establish. acknowledging the importance of progress in mapping and collecting data about acquired competences, we would like to add one more line of inquiry, focusing on our students: who they are, what are their needs and how they learn. the current generation of students is significantly different from who we were as students or from students we had ten years ago. a question arises, whether the design of legal education has adapted to reflect those changes. at the same time, especially in central europe, it is very easy to forget that the students are not the only beneficiaries of clinical legal education – the idea of service learning and providing essential legal aid for the local community allows the university to fulfil its third role and contribute to transformation of students towards socially responsible professionals with teachers as their role models. 245 reviewed article 57 evaluating the role of a non-doctrinal legal research method on legal education and practice in common law africa: nigeria as a case study emeke n. chegwe, department of public law, taraba state university, nigeria michael a. akatugba, faculty of law, delta state university, nigeria* this study was sponsored by the management of taraba state university, p.m.b.1167, jalingo-nigeria, with the fund provided by the tertiary education trust fund (tetfund) of nigeria abstract this paper presents the results of a study examining the relationship between a nondoctrinal legal research method (ndlrm) and the quality of legal education and practice, with a view to determine the reason for the increasing poor quality of law graduates from common law african countries. consequently, in this study, faculties of law offering ndlrm in nigerian universities were investigated as a case study and the challenges of doing so. to achieve the objective of this study, an experimental research design was formulated. interviews were conducted and a ndlrm challenges questionnaire developed and administered amongst a selected population * the authors appreciate the technical support of adeniji adewale taiwo of the federal university oye-ekiti nigeria, who analysed the data. 58 of law teachers and law students across the six geo-political zones of nigeria. data collected from the respondents were analysed using descriptive statistics. the results of the analysis showed a positive co-relationship between ndlrm and legal education and practice. law students were not taught ndlrm in nigerian universities and their teachers were not taught ndlrm as students in nigerian universities. in the conclusion of this paper, compulsory training on inter-disciplinary research for all law teachers in nigeria was recommended. further, the provision of adequate funding for research in all faculties of law and adequate training facilities such as smart boards and software for teaching empirical research in all law faculties should be a priority. key words: non-doctrinal, legal research, impact, education, nigeria. introduction this paper is structured as follows. it begins with an introduction in part one. part two consists of a brief explanation of the history of legal education in africa, including the quality of african law graduates, which forms the research background, and provides justification for the research area. parts three, four and five constitutes the research methodology, explains the choice and implementation of data collection methods, sampling aspects of the study and discussions of ethical considerations. part six provides a review of the literature review before presenting the primary data 59 collected and facilitated through tables in part seven. the paper continues to the discussion and analysis of these data in part eight before conclusions are drawn and recommendations are presented. historical background to legal education in africa the idea that law students may need formal instruction in legal research may meet with little argument today from law librarians, practising attorneys and even some law faculties. yet, a century ago, it was considered revolutionary. lawyers and law teachers of the early 1990s were not far removed from the time when a lawyer was expected to own or be familiar with all the materials needed for the practice of law. as legal issues became more complex and the quantity of legal materials increased, formal instruction for lawyers became accepted, and attending a law school became a primary method of preparing for a legal career. in nigeria (see chegwe 2016), kenya and south africa, prospective lawyers of the preindependent era did not attend university but were trained, apprentice-style, and learned whatever they knew about legal research by familiarising themselves with all the materials needed for the practice of law, and nothing else. for example, until 1945, lawyers trained in britain had no law degree, let alone knowledge of empirical legal research. no british university was offering a law degree at that time (ojukwu 2013). to qualify as a barrister, a person needed to join one of the four inns of court (law 60 chambers), read for the bar exam, keep 12 compulsory dinner terms and be called to bar – all without necessarily obtaining a law degree (fabunmi & popoola 1990). this and other challenges inherent in british trained lawyers led to the establishment of the unsworth committee by nigeria in 1959 (elias 1965) and the lord denning committee of kenya in 1960 (okere 2009). based on the recommendation of these committees, the university of nigeria, nsukka established the first faculty of law in 1962 while the lord denning committee in kenya recommended the establishment of a law school in dar-as-salaam to serve east africa. the development of legal education in zambia followed a similar pattern. legal education commenced in 1966 (chipasha 2018) with the establishment of university of zambia as the only institution offering a degree programme in law until the monopoly was broken in 2006. since 2006, various public and private universities have emerged offering law programmes at degree levels. prior to this period zambian lawyers were trained apprentice-style like their nigerian colleagues. expressing the desirability of university legal education to apprentice-style legal education, (chipasha 2018, 2) espoused: legal education has a fundamental part to play in society. excellence in legal education helps to shape the quality of the rule of law while the experiences it offers to future lawyers are invaluable. primary among them is exposure to a wide range of legal subjects that are essential in the practice of law. it also offers law students a supervised, 61 rigorous and disciplined opportunity to learn practical legal skills through clinics, trial practice and negotiation courses amongst others. this represents a superior way to compensate young lawyers who are often confined to run the errands of established lawyers who are often too busy to teach these young lawyers. in a nutshell, legal education is a form of human science that offers beyond techniques, skills and competencies, basic philosophies, ideologies, critiques, and instrumentalities, all addressed to the creation and maintenance of a just society.”1 quality of african law graduates most countries now operate two stages of legal education for prospective members of the legal profession namely a university legal education and a vocational/professional legal education. university legal education consists of four to five-years of study in the law faculties of designated universities, during which law students are exposed to theoretical knowledge of legal norms, principles and other inter-related disciplines leading to the award of a bachelor of law (llb) degree which qualifies the law student to be admitted to the second stage of legal education. the second stage involves one to two years of practical training for aspiring legal practitioners. since the llb degree is the only academic qualification 1 for a comparative analysis of systems of legal education in africa, see okere (1990), ‘the legal education in kenya’ journal of african law 33(1) 78-90. 62 required to practice law, the quality of university legal education directly affects the quality of legal practice. there is a general consensus amongst legal academic and practising attorney communities on the dwindling quality of law graduates from former common law countries.2 in nigeria for example, efforts to maintain the standard of legal education remain problematic despite the threat of withdrawal of accreditation of many law faculties by the council of legal education. various reasons have been adduced for the situation. idem and halimat (2019) blames the falling standard of law graduates in nigeria on over population of students, lack of adequate funding, lack of curriculum synergy between the faculties and the nigerian law school, inadequate teaching facilities, and indiscipline on the part of students who are often distracted by social media, resulting on shorter attention span which rubbed students of the benefit of actual study to assimilate as they now merely memorise. they recommended that the council of legal education, in the exercise of its regulatory powers must review its current accreditation system to ensure that prescribed standards are maintained across the two levels of legal education. collaborations should also be reached with international law societies and legal bodies such as the african bar association and 2 see generally, thomas f. geraghty and emmanuel k. quansah, “african legal education: a missed opportunity and suggestions for change: a call for renewed attention to a neglected means of securing human rights and legal predictability” loyola university chicago international law review, (2007) vol.5, issue 1: samuel o. manteaw “legal education in africa: what type of lawyer does africa need” university of the pacific mcgeorge law review ((2016) vol.39, issue 4:okechukwu oko,“legal education reform in africa: time to revisit the two-tier legal education system” university of miami international and comparative law review, (2021) vol. 29,issue 1. 63 the international bar association, who can help in ensuring the sustenance of global benchmark (idem and halimat 2019). there is a similar concern in the quality of law graduates in south africa. franny (2022) reports how the south african law deans association recommended a fiveyear degree programme as replacement for the four-year degree introduced in 1998 pursuant to the legal practitioner’s amendment act 78 of 1997. though the antiapartheid reason for the introduction of the programme was justified, the four-year degree did not only reduce the quality of the degree, but more than 75 per cent of the students did not finish the programme within four years. according to franny (2022, 2), the recommendation was based on research “including the findings that only 35% of llb students actually graduate within five years and that, of all those who register at tertiary level, only 55% ever graduate at all”3. types of legal research the study of law could either be doctrinal or non-doctrinal. doctrinal research doctrinal research involves analysis of case law and statutory provisions, arranging, ordering and systematising legal propositions and the study of legal institutions through legal reasoning or rational deduction. doctrinal research involves research 3 the recommendation was made in january 2014 by campbell. 64 into law as a normative science which, as gain (1975) identifies, lays down norms and standards for human behaviour in a specific situation or situations through the sanction of the state. it is this normative character that distinguishes law from other related disciplines of the social sciences (myneni 2017). doctrinal research is regarded as speculative in the sense that the various viewpoints which are admissible within it cannot be empirically verified (gasiokwu 2014). according to salim et al (2017), the main advantage of library or ideological research as they choose to call doctrinal research is that it saves time: “…the busy practitioner tends to be concerned with the law ‘as it is’ and rarely has the time to consider research that does not fit within that paradigm and timeframe”. the disadvantages of doctrinal research are that it is very narrow and restricts the choice and range of topics which increasingly withdraws the legal profession from the greater social context (salim et al 2017). non-doctrinal research nondoctrinal, such as socio-legal, research is research into law in the context of other inter-related or dependent factors. it facilitates examination of the relationship between law and other behavioural sciences. of course, while most laws are found and developed in legal texts, they do not operate in vacuum. they influence and are influenced by social values, attitudes and ethos. an investigation into the dynamics of such a complex phenomenon involves the collection of data outside the conventional legal sources. this type of research usually involves field work. in most developing 65 countries including nigeria, doctrinal research constitutes the dominant research approach while nondoctrinal research techniques are unfortunately regarded as subversive by most law teachers; while others believe that such approach represent the indulgence of those who do not understand what the study of law truly entails (gasiokwu 2014). problem statement law students, unlike students in the social sciences, are often unable to present dissertations in their chosen area of law as required in partial fulfilment of their law degrees. they are not provided the training necessary to undertake empirical research, at least with the necessary level of sophistication. after graduation, lawyers are unable to undergo a transformation from passive consumer of academic knowledge into active co-producers of societal reform. this situation also has cyclical effects on the quality of legal practice in nigeria. hence, this study on nondoctrinal legal research addresses the practical evidential gap created by pure doctrinal research. research objectives 66 the specific objectives of this study are as follows: • determine how many universities in nigeria teach a non-doctrinal legal research method. • determine the challenges of teaching a non-doctrinal legal research method in nigerian universities. • determine the relationship between a nondoctrinal legal research method and the quality of legal education and practice in nigeria. research questions in accordance with the above objectives, the following research questions are addressed in this study: • do universities in nigeria teach a non-doctrinal legal research method? • what are the specific challenges of teaching non-doctrinal legal research? • does a non-doctrinal legal research method impact the teaching and practice of law in nigeria? literature review 67 according to everwijn, g. et al (1993), ability or competence-based education is the only way of bridging the gap between knowledge acquisition and the ability to apply same. the ultimate goal of legal education should be to teach students to apply that same knowledge. discipline specific knowledge and skills are, singularly, insufficient to enable the lawyer to respond adequately in a situation of discipline transcending (inter-disciplinary) knowledge and problems.4 solomon (2017), who was interested in improving the quality of legal education in nigeria, recommends skill in effective legal research report writing, with the general assumption that prior legal research has been effectively and methodologically conducted. knowledge acquired as a fundamental requirement of every enterprise should be adequately transferred and prudently applied for solving societal problems. legal knowledge is transferred and acquired through legal education. solomon (2017, 1) examined how to write an effective legal research report and identifies lack of empirical research methods, especially at the undergraduate level, as a major impediment on the aptitude and quality of legal writing by the country’s legal academics, as well as judges, legal draftsmen and law advocates. further, solomon criticised the system of legal education in nigerian universities for its inefficient pedagogy, focusing more on pure theories of “substantive law without the sufficient application of skills” as well as the deficit in teaching and research facilities in the law faculties of nigerian universities. it is worth noting, however, that there was no 4 in the last decade the national university commission, (nigerian university regulatory body), recommended a compulsory diploma certificate in education for every university teacher in nigeria, including law teachers, but the policy was not followed through. 68 statistical data presented on which the author could rely when arriving at this conclusion. becher’s work (1981) on the quality of research by law teachers continues to represent an accurately deleteriously account of how academic lawyers are viewed by their counterparts in the social sciences. accordingly, academic lawyers are regarded as not really academic, arcane, distant, alien, an appendage to the academic world. they are sometimes vociferous, untrustworthy, immoral, narrow and arrogant. their research fares no better in this assessment, dismissed as it is as being unexciting, uncreative, and comprising a series of intellectual puzzles scattered amongst large areas of decryptions. empirical facts impact positively on legal scholarship and legal research. for example, there are existing rules of evidence in many jurisdictions such as australia and the united states (burns and hutchinson 2009) allowing for a formal use of empirical data within the doctrinal analytical framework. in nigeria for example, courts are required to apply the doctrine of judicial notice and other provisions of the evidence act5. however, these existing rules of evidence do not appear to adequately cater for the wide variety of ways in which empirical facts are utilised in judicial decisions. the way these materials find their way into judges’ decisions appears to primarily rest upon judicial discretion and when they are used, social science materials relevant to empirical fact assumptions are not always adequately acknowledged by judges. the 5 see section 18(3) evidence act 2011 laws of the federation of nigeria (lfn) 2011. 69 recognition of the judicial use of empirical facts as part of judicial reasoning raises the need for new approaches to legal research and legal research training based in the social sciences. it suggests that lawyers need better training in non-doctrinal methodologies. the evolution of legal education in nigeria seems to have negatively impacted the nature and quality of legal research that is carried out in nigerian universities. there is currently no empirical data on non-doctrinal legal research in nigerian universities. the result of this study will be of benefit to other researchers and policy makers especially the national universities commission (nuc), aiming to improve the quality of legal education and practice in nigeria. methodology of the research population and sample. due to practical constrains, a sample of the population consisting of eighteen universities selected across the six geo-political zones was studied. the selected numbers were extracted using the probability sampling techniques. the research participants consist of law teachers and students in different levels of undergraduate studies. few post graduate students also formed part of the studied population. for ethical reasons, the names of the universities are not disclosed. 70 method of date collection instrumentation data was collected using a questionnaire instruments and interviews. the questionnaire instrument adopted a likert 5-point rating scale (ordinary scale), with response options ranging from “to a very great extent”, to “to a small extent”. the instrument consisted of two sections. section a provided demographic information, while section b extracted response on the impact of empirical legal research training on the learning and teaching of law in nigerian universities. method of data analysis the data collected from the respondents were coded and analysed, and presented in tables 1, 2, 3 and 4. the demographic data was analysed using descriptive statistics. responses to the copies of the instrument was tallied on a five-point scale, and the null hypothesis processed with the appropriate computer statistical packages for social sciences (spss). results and discussions the information sourced from the respondents was subjected to descriptive and inferential statistics. the demographic characteristics of the respondents presented in 71 table 1 showed the majority (54.55%) of the respondents are within the age bracket 31 to 40 years indicating that the respondents are young and qualified to provide information on the subject matter. next to this age bracket are respondents within the age group 20 and 30 years. a majority of the respondents are male, accounting for 64.5% of the respondents. a majority (81.18%) of the respondents had undergraduate qualifications while the remainder are those with postgraduate qualification in law. the chi square goodness-of-fit test showed that the classes for age distribution, gender and educational attainment were significantly different from each other at a 0.01 level of probability. table 1: demographic and institutional characteristics of the respondents age frequency percentage (%) degree of freedom chi square 20 30 years 60 27.27 3 42.56 31 – 40 years 120 54.55 41 – 50 years 30 13.63 50 years > 10 4.54 total 220 4.54 gender male 142 64.5 1 51.11 female 78 35.45 total 220 educational attainment undergraduate 180 81.81 1 60.21 72 postgraduate qualification 40 18.18 information on the preponderance of non-doctrinal legal research in the universities surveyed is presented in table 2. findings showed that the majority of the lecturers and students were unaware of non-doctrinal legal research training. the respondents indicated that they had not registered for, nor attended, courses in non-doctrinal legal research at undergraduate and postgraduate levels. this observable data demonstrates the reason nigerian law undergraduates were unable to carry out nondoctrinal legal research of their own as law students and their inability to impact same as teachers. also, the respondents who were taught doctrinal legal research during the 400 level, followed 100, 200 and 300 levels. however, 10% of the respondents indicated that non-doctrinal legal research was taught in their university for a period spanning 5 and 10 years (10%) while 90% of the respondents indicated otherwise. the 10% who were taught using non-doctrinal legal research studied abroad during their undergraduate degrees. the chi square goodness-of-fit test showed that the variables tested were significantly different from each other at 0.01 level of probability. table 2: preponderance of non-doctrinal legal research in the universities variables frequency percentage (%) degree of freedom chi square 73 are you aware of empirical law research yes 80 36.35 1 43.11 no 140 63.64 total 220 have you been taught or took courses in nondoctrinal legal research in the university yes 30 13.63 1 56.24 no 190 86.36 total 220 at what level in the university were you taught nondoctrinal legal research 100 level 1 0.45 5 62.18 200 level 1 0.45 300 level 1 0.45 400 level 27 12.27 500 level 00 0.00 not at all 190 86.36 total 220 for how long has nondoctrinal legal research being taught in your 74 university not at all 200 90 86.11 1 5 – 10 years 20 10 15 years > 0 00 total 220 challenges of empirical legal research in nigerian universities the information received through the survey on the challenges of empirical legal research was subjected to a four-point likert scale test, with a mean of 2.00±0.50 declared as important. the challenges faced in the teaching of non-doctrinal legal research in nigerian universities are presented in table 3. findings indicate that the lecturers were not taught non-doctrinal legal research during their training in the universities, and this had direct and severe effects on legal research at university. this is based on the premise of the total score of 3.44 out of 4.00. there is an assumption in certain quarters that non-doctrinal legal research is not necessary (gasiokwu 2014). this investigation equally acknowledged the existence of phobia for mathematics and statistics by law respondents. there is also the challenge of inadequate time devoted to the study of research methodology in nigerian law faculties. unlike other regions such as the united states where legal research and writing are integral parts of the student’s curriculum (booth, 2009), legal research is offered only in the fourth year of a five-year program in nigerian universities. law students are therefore unable to 75 grapple with the rudiments of research methodology, data collection and analysis in time to adequately prepare for their long research essays at 500 level of study, with the consequence that law students frequently engage in plagiarism. inadequate resources in the universities to teach nondoctrinal legal research courses limit easy deployment and teaching of non-doctrinal legal research courses in the universities. also, inadequate training facilities and software for teaching this course limit teaching of nondoctrinal legal research courses in the universities. all the variables evaluated recorded mean scores in excess of 2.50, indicating the how severe these variables are. table 3. challenges in teaching non-doctrinal legal research in the universities variables highly severe severe moderate not severe total lecturers were not taught empirical research during their training at undergraduate and postgraduate schools 160 (2.90) 20 (0.27) 20 (0.18) 20 (0.09) 3.44 assumption that nondoctrinal legal research is not 150 (2.73) 30 (0.41) 20 (0.19) 20 (0.09) 3.42 76 necessary in law. phobia of statistical reasoning by lecturers 190 (3.45) 10 (0.14) 10 (0.09) 10 (0.05) 3.73 inadequate of qualified manpower 180 (3.27) 20 (0.41) 10 (0.09) 20 (0.05) 3.82 inadequate training for non-doctrinal legal research training 140 (2.55) 30 (0.41) 30 (0.27) 20 (0.09) 3.32 inadequate software for non-doctrinal legal research training 160 (2.55) 20 (0.41) 40 (0.36) 20 (0.09) 3.41 the impact of non-doctrinal legal research on the practice of law the impact of non-doctrinal legal research on the practice of law was investigated among the respondents. findings indicate that non-doctrinal legal research has a high impact on legal practice, logical research and the presentation of client’s cases, client management, scale forensic assessment and probable sifting of evidence by lawyers and judges. the legal profession is probably the profession which is most oriented towards research in literature chunuram (2021). a major portion of the work which lawyers do is legal research and the application of the findings of this research to 77 problems at hand. proper non-doctrinal legal research skills therefore have a positive relationship with the practice of law in nigeria. these findings are consistent with high mean scores which range from 3.47 to 3.63 (table 4). table 4. impact of doctrinal legal research on legal practice in nigeria variables highly impact moderate impact low impact no impact total nondoctrinal legal research practice has positive influence on the practice of law. 170 (3.09) 30 (0.40) 10 (0.09) 10 (0.05) 3.63 nondoctrinal legal research practice in nigerian legal system will influence scientific case presentation and client practice 150 (2.70) 30 (0.40) 20 (0.18) 20 (0.09) 3.37 knowledge of nondoctrinal legal research will 160 (2.90) 40 (0.54) 10 (0.09) 10 (0.05) 3.58 78 scale forensic assessment of cases and investigation by lawyers doctrinal research makes law research very efficient 137 (2.49) 60 (0.81) 13 (0.12) 10 (0.05) 3.47 conclusions there has been growing concern about the failing standard of legal education and practice, a situation that has been traced to the quality of university graduates. since lawyers are required to acquire legal education in universities before being allowed to practice (chioma 2015) there are growing demands for reforms in legal education. according to the nuc,6 academic legal education should first be interdisciplinary to expose the student to analysis of the socio-political and cultural environment of legal rules and secondly, as an intellectual exercise aimed at challenging the individual to creativity and problem-solving skills through empirical research. against this background, this study set out to investigate the challenges of conducting nondoctrinal legal research in nigerian universities against an initial presumption that 6 national university commissions’ (nucs’) benchmark minimum academic standard for undergraduate programmes in nigerian universities, nov., 2014 pp.ii-iii. 79 they do not, and that nondoctrinal research affects the quality of legal education and practice in nigeria. based on the evidence presented by this study, nigerian law students are still unable to carry out non-doctrinal research in other to acquire critical thinking skills, with the challenge that they are unable to impact same to their students if they eventually become law teachers. this challenge is historically linked to the pioneer faculty members who were trained apprentice – style in the english “inns of court” thus it was only natural to introduce the system with which they were familiar fabunmi and popoola (1990:40). the consequence on the standard of legal practice is that the young practitioner, though “qualified,” is ill-equipped and unable to define their role in the society or cope with the pressure of global legal practice. they are eventually converted from a legal practitioner to a businessman with profit rather than principle as the basis for legal practice. recommendations arising from the foregoing findings and conclusions, the following recommendations are suggested as a way of encouraging non-doctrinal legal research in nigeria. 80 1. training on ndlrm for all law teachers in nigeria: law teachers who are already employed should be trained on ndlrm. an advantage of this research method is the exposure to inter-disciplinarily research. there are some common features and similarities of research methodologies across the social sciences from which legal researchers can benefit 7. the social science environment is an interdisciplinary field linking the disciplines of management, economics and law. this position is consistent with an earlier study which contend that the system of legal education in nigeria suffers from a pre-conceived restricted view of the role of the lawyer in society , fabunmi and popoola (1990: 45).they wondered if the scope and content of the legal curriculum in use at law faculties, which are excessively and unduly rule-oriented, can really equip the lawyer with the breath of vision required of him in his later-day professional life; whether the duties of the law faculties are discharged in teaching the ‘pure law’ (law of the statute book) or whether they should help the students to relate the law to its social effects. it is contended that compulsory training in interdisciplinary research methods will fill a yawning gap between the logically arranged legal norms in the textbooks and the stark reality that surrounds lawyers’ practical operation. this gap can only be filled with the injection of non-legal subjects which have bearing on the understanding of the society like economics, philosophy, psychology and some other relevant subjects in 7 already, there is an evolving global research practice towards a unified citation/ referencing style for all social sciences research, including legal research. 81 the sciences and humanities. non-doctrinal legal research is implicit in interdisciplinary legal education. 2. provision of adequate funding: depending on the methods of data collection, research is generally expensive to carry out. for example, the cost of experimental research design is significantly higher than what an individual researcher can afford: questionnaires may have to be administered and retrieved amongst a selected population by the researcher. these cost money. we are all aware of the challenges of unverified electronic legal research sources, hence the preference for westlaw and lexis in legal research. these have sophisticated functionality that can ease the pain of legal research, but these systems are very expensive to acquire, install and maintain against the backdrop of the poor funding of public universities in nigeria. non-doctrinal legal research will benefit extensively if university education is adequately funded. 3. provision of adequate research facilities: it is one thing to provide funding for empirical research and entirely another to strategically and effectively deploy the funds provided to achieve the desired goals. for example, kanayo (2021) indicates that over the last 10 years the federal government of nigeria, through the tertiary education trust fund (tetfund), has injected more than n2.5 trillion into nigerian universities in support of empirical research. but judging from insistent 82 strike by members of the academic staff union of nigerian public universities, these funds did not get to the targeted beneficiaries. the following are suggested ways of ensuring that funds meant for research are appropriately applied for that purpose: i. direct procurement of modern research facilities such as adequate classrooms fitted with smart boards, software for collecting and statistically analysing numerical data for faculties by government and donor agencies; ii. direct subscription to online research journals; iii. provision of adequate electricity and data for universities and faculties; iv. sponsorship of law teachers to academic conferences and exchange programmes; and v. restructuring of existing student curriculum with an emphasis on narrowing the gap between theory and practise. one major way of achieving this goal is the provision of hard and soft infrastructure for legal aid clinics for all faculties of law in nigeria’s universities. 4. the compulsory teaching of non-doctrinal legal research and writing at all levels of study in law faculties in nigeria. 83 5. prior credit pass in mathematics: a credit pass in mathematics and statistics should be made a compulsory requirement for admission into law programmes in nigerian universities. this will eliminate the phobia for mathematics and statistics amongst law students and teachers. alternatively, law should only be studied as a second degree: only candidates with a prior degree in other social sciences should be admitted to read law in nigerian universities. this recommendation will go a long way in resolving the phobia for mathematics and figures by law students earlier identified. references books chegwe, e. n., (2016) legal research methodology and project writing (ekpoma-nigeria: ambrose alli university press). elias, o., (1965) makers of nigerian law (london: sweet and maxwell). ojokwu, e., (2013) legal education in nigeria: a chronicle of reforms and transformation (council of legal education). gasiokwu, m.o.u., (2014) legal research and methodology (jos – nigeria; fab educational books). 84 journal articles burns, k., and hutchinson, t., (2009) ‘the impact of "empirical facts" on legal scholarship and legal research training’ the law teacher 43(2) 153-178 (queensland australia, griffith university press). available online http://www.informaworld.com> accessed nov. 6th’ 2021. becher, j., (1981) ‘towards a culture of disciplinary culture’ studies in higher education 2(2) 109-122. chegwe, e. n., (2015) ‘politics and intrigues of accreditation in nigeria: the noun/cle conflict in retrospect’ current issues in nigerian law 5 (noun, abuja nigeria), 2. chunuram, s., (2021) ‘legal research methodology: an overview’ journal of emerging technologies and innovative research (jetir), 18 (10) 442. chipasha, m., (2018) ‘enhancing the standard of legal education in zambia; challenges and prospects’ journal of commonwealth law and legal education, everwijn, s. e., bomers, g. b., and knubben, j. a., (1993) ‘ability-or competencebased education: bridging the gap between knowledge acquisition and ability to apply’ journal of higher education 25 (4) 425-438. 85 fabunmi, o., and popoola, a., (1990) ‘legal education in nigeria; problems and prospects’ law and politics in africa, asia and latin america 23 (1) 24-55. gain, s. n., (1975) ‘doctrinal and non-doctrinal research in law’ journal of the indian (51653’<https//:www.jestor.org/stable/43953840.> accessed january 6, 2022. idem, u. and halimat a., (2019) “challenges of legal education in nigeria and the effect on national development” international journal of multidisciplinary research and development, 6 (10), 92-99. myneni, s., (2017) ’legal research methodology’<https://www.lawbookshop.net/legalresearch-method-methodology-s-rmyneni-html > accessed january 5, 2022. okere, g., (2009) ‘the legal education in kenya’ journal of african law 33(1) 78-90. solomon, e., (2017) ‘towards effective legal writing in nigeria’ journal of commonwealth law and legal education 12 (1) https://ssrn.com/abstract=3085032. salim, i., zuryate, m., and zainal, a., (2017) ‘legal research of doctrinal and nondoctrinal’ international journal of trend in research and development 4 (1) 493-495. news papers and magazines chioma, u., (2015) oct.17, ‘future of legal education in nigeria’ the nigerian lawyer magazine <https://www.thenigerianlawyer.com/future-of-legal education-in-nigeria/> accessed january 5. 86 cambell, j., (2014) ‘quality of law graduates preferred to large numbers of illequipped graduates’ rhodes university newsletter published online at https//www.ru.ac.za/latestnews/quality/lawgraduatespreferred. reviewed article – clinic, the university and society 85 law & entrepreneurship in global clinical education janet thompson jackson and susan r. jones1 introduction as clinical legal education (cle) continues to evolve and prepare practice-ready lawyers, and governments worldwide focus on the multilayered impact of technology, automation and artificial intelligence, there is a pressing need to examine law and entrepreneurship through the lens of global clinical legal education. the range of issues include: corporate social responsibility, disruptive technologies, microbusiness, social entrepreneurship, social impact investing, the creative economy, sustainable local economies, cooperatives and shared work, and inclusive entrepreneurship. indeed, new legal entities like benefit corporations and low profit limited liability companies (l3cs) have emerged to address contemporary legal needs and in the united states. the notion of an entrepreneurial mindset is prominent.2 many of today’s law 1* janet thompson jackson directs the small business and nonprofit transactional clinic at washburn university school of law. she is a past co-president of the clinical legal education association and a past co-chair of the transactional clinics committee of the association of american law schools clinical section. professor jackson appreciates the research support provided by washburn law school. ** susan r. jones directs the george washington university law school small business & community economic development clinic. she is a past chair of the clinical section of the association of american law schools professor jones thanks gia arney, gw law business & finance reference librarian, and research assistants andrea johnson and ayesha syed for their help with this article. an early version of this article was preseted at the 3rd european network for clinical legal education (encle) conference 2015 in budapest, hungary 2 calvin gladney, happy better lawyer, http://www.happierbetterlawyer.com/home/ (last visited jan. 22, 2018); david e. pozen, we are all entrepreneurs now, 48 wake forest l. rev. 283, 284 (2008). http://www.happierbetterlawyer.com/home/ reviewed article – clinic, the university and society 86 students are millennial generation, ages 18-34, while others are digital natives who have not known a world without technology. business law clinics (blcs), also referred to as transactional clinics,3 representing for profit, nonprofit or nongovernmental (ngos) organizations and social enterprises aim to support the growth of entrepreneurial ecosystems while promoting social and economic justice. blcs teach law students substantive law, practical skills and professional values. indeed, blcs with a social and economic justice perspective can help law students, the next generation of leaders, to develop critical analytic skills and insights into how entrepreneurship supports and sometimes hurts human rights and civil society efforts.4 part one of this article examines the evolution of global cle in western countries like the united states, united kingdom, canada, australia, and in georgia and croatia. part two discusses a more recent phenomenon in cle, the emergence of blcs, which expand the clinical experience beyond the courtroom to the boardroom, and the differences and similarities between litigation and transactional legal clinics. part three examines the rise in blcs globally, and contains case studies of the global experience in transactional cle with perspectives from georgia, croatia, australia, canada and the 3 alicia alvarez and paul r. tremblay, introduction to transactional lawyering practice, 1, 1-12 (west 2013). transactional lawyering takes place when parties come together for economics, social, or relational value creation. for purposes of this article we use the term “business law clinics” to include both for profit and nonprofit clinics. 4 see, e.g., rebekah schouten, dannon debuts non-gmo project verified yogurts, food business news (sept. 18, 2017), www.foodbusinessnews.net/articles/news_home/new-product-launches/2017/09/dannon_debuts_nongmo_project.aspx?id=%7b86c74298-1d3a-4fd5-b3f3-1e211a889c6f%7d&cck=1 (last visited jan. 22, 2018); see, e.g., lynn stout, the shareholder value myth: how putting shareholders first harms investors, corporations, and the public (may 7, 2012). reviewed article – clinic, the university and society 87 u.k. part four considers the unique pedagogical and programmatic aspects of blcs, such as redefining “practice-ready,” teaching millennials, and collaboration as a lawyering skill. part five reflects on the significance of blcs now. in part six the article concludes by looking to the future of blcs in a global context. the article also includes an appendix 1 with blc lawyering competencies and learning outcomes and appendix 2 with a checklist for starting or re-imagining a blc. part i: the global clinical legal education movement as early as the 1930s, jerome frank, a u.s. federal appellate judge, former chair of the securities and exchange commission, and a leader in the legal realism movement, argued that law schools should incorporate actual practice into legal education. although a few law schools heeded his advice, the u.s. clinical legal education movement took root in the 1960s when the ford foundation created the council on legal education for professional responsibility, inc. (clepr).5 thus, the u.s. experience with cle is unique because it received substantial funding which gave it firm footing.6 5 robert l. doyel, the clinical lawyer school: has jerome frank prevailed, 18 new eng l. rev. 577, 577 (1982-1983) (during this time, legal education was also being reexamined amid concerns over lawyer competence.). 6 see frank s. bloch, the global clinical legal education movement: educating lawyers for social justice, 1, 3 (2010) [hereinafter bloch, global clinical movement]. reviewed article – clinic, the university and society 88 the modern cle movement7 emerged primarily in western countries with the united kingdom, canada, australia and the u.s. as the earliest adopters during the 1960s and 1970s, in response to societal, political and economic needs.8 in each of these countries, the rise of cle was associated, at some level, with dissatisfaction with lawyer training as well as a concern for those less fortunate. in the u.k., the cle movement was tied to the emergence of voluntary legal advice centers and was part of legal education reform including “ethical inquiry” 9and the “student-client experience.”10 in contrast, cle in canada was linked to a community-based access to justice movement which encouraged law school curricula to include poverty law issues. in australia, even in the face of tough opposition, law students spurred a student volunteerism movement which facilitated the development of cle. in the u.s., examples of cle are found as early as 1893 in the form of a legal aid dispensary11 and later in 1921 when critics denounced legal education for its lack of an experiential component, witnessed in other professions such as medicine and engineering.12 notwithstanding early interests in cle, the u.s. cle movement, like 7 id. at 5 (u.s. clinical legal education was funded by the council on legal education and professional responsibility (clepr) and ford foundation in the 1960s and 1970s.). 8 susan r. jones and jacqueline lainez, enriching the law school curriculum: the rise of transactional legal clinics in u.s. law schools, 43 wash. u. j.l. & pol’y 85, 85-86 (2014). 9 bloch, global clinical movement at 128. 10 id. at 114. 11 id. at 5 (a pennsylvania legal aid dispensary was established in 1893). 12 id. at 5. reviewed article – clinic, the university and society 89 other western countries, was most influenced by social issues such as poverty and civil rights.13 while early litigation clinics represented clients with respect to criminal defense, welfare rights and public entitlements, domestic relations and landlord and tenant cases, today clinics represent immigrants and refugees, domestic violence and human trafficking survivors, and persons wrongfully convicted of crimes. in the case of criminal exoneration, technological advances in dna evidence have enabled this new area of practice.14 technological advances continue to impact cle – from law practice incubators to virtual law practice and the rise of new legal clinics in social impact investing, technology, and entrepreneurship law and policy.15 cle began to develop in central and eastern europe in the mid-nineties as former communist countries transitioned into democratic systems of governance.16 eastern european countries have more quickly embraced cle than most western european countries.17 european scholars give several reasons for this, including that the fall of communism led to high incentives to change the structure of classical classroom lectures; 13 bloch, global clinical legal education, at 128. 14 john m. butler, the future of forensic dna analysis. philosophical transactions of the royal society b: biological sciences, 370 philos. trans r soc. lond b biol sci. 1, 1 (jun. 22, 2015). 15 see, e.g., berkley and brooklyn, australia social impact hub clinic, unsw sydney, http://www.law.unsw.edu.au/current-students/law-action/clinics/social-impact-hub-clinic (last visited jan. 22, 2018). 16 marguerite angelari, raising the bar for legal education in western europe, (nov. 18, 2013) available at https://www.opensocietyfoundations.org/voices/raising-bar-legal-education-western-europe, (last visited jan. 22, 2018). 17 aksamovic & genty, an examination of the challenges, success and setbacks for clinical legal education in eastern europe, 20 int'l j. clinical legal educ. 427, 429-30. (2014). https://www.opensocietyfoundations.org/voices/raising-bar-legal-education-western-europe reviewed article – clinic, the university and society 90 that the transition created a market demand for legal reforms; that the transformation from non-market to market economies led to increased need for free legal aid; and that a new generation of law students wanted change.18 the development of cle in eastern european countries in 1990s was based on u.s. models (i.e., live-client, simulation, outside placement) and benefitted from some capacity-building efforts, but resulted in diverse cle models in eastern europe because the design of clinical programs reflected the desire of the clinic founders who developed them.19 also, clinical design related to needs in a particular country (e.g.., labor and refugee law) and clinic creators lacked systematic approaches or strategies to move toward a uniform concept of cle.20 initially, many eastern european clinics failed due to loss of funding, insufficient numbers of teachers who could practice law and had knowledge of clinic pedagogy and methodology, and legislative restrictions.21 and, while some clinics in eastern europe still struggle to find firm footing and support due to a lack of respect from traditional law professors, undeveloped clinical pedagogy, unclear clinical design, and lack of curricular flexibility, 22 many clinics in eastern and western europe are thriving. today, legal clinics exist worldwide and their growth and development are tied not only to concerns about the relevance of legal education to the lives of real people, but also to 18 id. 19 id. at 430. 20 id. 21 id. 22 id. reviewed article – clinic, the university and society 91 societal change. blcs are no exception as they first emerged from concerns about “community economic development,” broadly defined as strategies for creating healthy communities23 in a worldwide focus on microbusiness, and more recently global interest in the wealth gap. part ii: the global emergence of business law clinics as with their litigation counterparts, some u.s.-based blcs were created and supported with external economic funding. in the case of blcs, this funding came from the u.s. small business administration, state and local governments, and the ewing marion kauffman foundation.24 blcs grew in the u.s. between the late 1970s through the mid1990s with more than 150 transactional clinics at 200 american bar association (aba) approved law schools today.25 this article analyzes the rapid growth of the blc movement. in addition, it seeks to address the questions of why so many business clinics were created at american law schools and whether there are useful lessons from the u.s. experience that can inform the global clinical legal education movement and vice versa. 23 see generally, susan r. jones and roger a. clay jr., building healthy communities: a guide to community economic development for advocates, lawyers and policymakers, (feb. 6, 2010). 24 jones and lainez, enriching the law school curriculum at 92; ewing marion kauffman foundation, http://www.kauffman.org/ (last visited jan. 22, 2018). 25 jones and lainez at 87. http://www.kauffman.org/ reviewed article – clinic, the university and society 92 u.s. blcs, which represent new and growing businesses and nonprofit organizations that are unable to afford market rate legal services, were created and grew for many reasons. 26 … [m]arket forces have necessitated changes in the way legal education is delivered, including the escalating importance of clinical legal education in teaching students to think and perform like lawyers. recent downward shifts in the economy, academic reports extolling the benefits of experiential learning enlivening experiential remedies, funding for transactional clinics, and student demand for hand-on lawyering opportunities have all led to the expansion of transactional clinical curricula. moreover, transactional clinics are important to teaching not only substantive law, lawyering skills, and values, but they also expose law students to entrepreneurs and social entrepreneurs, helping students to understand their specialized legal needs. this exposure is essential, given the emphasis on entrepreneurship and innovation in american society and the need to cultivate an entrepreneurial spirit in law students at a time when the legal market is shifting, due, in part to rapidly developing technologies.27 26 susan r. jones, promoting social and economic justice through interdisciplinary work in transactional law, 14 wash. u. j.l. & pol’y 249, 250 n. 2 (2004), http://openscholarship.wustl.edu/law_journal_law_policy/vol14/iss1/9. (at least one of the first business law clinics was funded by the us small business administration. others were part of the community economic development movement driven historically by civil society groups as early as the 1800s). 27 id. http://openscholarship.wustl.edu/law_journal_law_policy/vol14/iss1/9 reviewed article – clinic, the university and society 93 entrepreneurship has always been the backbone of the american economy, but global technological and financial advances, such as crowd funding, supported by innovation and creativity, are disrupting traditional business forms.28 the rise of blcs has continued, not only in the u.s. and canada, but also in europe and australia. the emergence and popularity of these clinics has been in response to many factors, including the generational pull of millennial law students and millennial entrepreneurs, student demand for non-litigation lawyering experiences, the limitations of the litigation model to impact systemic poverty, the rise of entrepreneurship globally, the rise and fall and rise again of global economies, and the impact of community lawyering.29 although generically called “business clinics,” they vary widely in practice area, design and sometimes, mission. some blcs very deliberately stayed within the social justice mission of traditional law clinics, but some have chosen to stray from that mission. as blcs continue to take shape around the globe, transactional clinicians are creating new space in the clinical landscape. part iii: blcs – the global experience blcs have emerged slowly in the u.k, canada, australia, croatia and georgia, and this list may not be exhaustive. 28 jeff thomas, praveen kosuri, and bernice grant, democratizing entrepreneurship: online documents, tools, and startup know-how, 26 j. affordable housing & cmty. dev. l., 193, 217-18 (dec. 29, 2017). 29 jones and lainez at 121. reviewed article – clinic, the university and society 94 a. blcs in the united kingdom: associate professor elaine campbell of northumbria law school in the u.k., presenter at the first meeting of the network of european (existing and aspiring) blcs (hereinafter the “european blc network”), observes that she has often been the only business law clinician in attendance at conferences and meetings on cle. she writes, “the development of clinics providing free legal advice to businesses in the united kingdom has been woefully slow. there is also a dearth of information about the business law clinics that do exist, or have existed in the past. they have been hidden away, or, at the very least, backwards in coming forward. this makes it difficult to chart their existence.” 30 the european blc network, sponsored by ilinc – establishing a european network of law incubators that bridge ict entrepreneurs and start-ups with law students, a program of the seventh framework programme of the european union and funded by the european commission – appears to be an effort to galvanize the blc and business law pro bono legal services community. 31 professor campbell notes that the u.k. embraced clinical legal education in the 1970s, decades after the u.s., but today “a least 70% of law schools in the u.k. are now involved in pro bono and/or clinical activity.”32 30 elaine campbell, a dangerous method? defending the rise of business law clinics in the uk, 49 the law teacher 165, 168-69 (feb. 23, 2015) available at https:/doi.org/1080/03069400.2015.1004254 [hereinafter campbell, a dangerous method?]. 31 ilinc, http://www.ilinc.com/ (last visited jun. 29, 2018) (it is noteworthy that in the us, there are a number of pro bono legal services programs providing business law services);see, jared nicholson, offering transactional legal aid to low-income entrepreneurs, 6 indiana j of l & soc equality, 1 (2018) available at https??www.repository.law.indiana.edu/ijlse/vol6/iss1/1. 32 campbell, a dangerous method? at 2. http://www.ilinc.com/ reviewed article – clinic, the university and society 95 the blc professor campbell runs at northumbria university is a “student law office” and students work in “law firms” to assist businesses, charities and social enterprises of various types and without regard to income. projects include trademark registration, drafting company registration documents and advising directors on fiduciary duties, and drafting website terms and conditions, and contract drafting. law students also offer free workshops to the public and to entrepreneurial groups.33 the clinical programs that provide legal advice as opposed to legal representation to businesses are varied. as of 2011, the clinic at york law school began offering advice to small businesses.34 similarly, in 2011, the city university of london created start-ed commercial law clinic (start-ed clinic), a free walk in clinic, run by law students supervised by “local professionals”.35 the start-ed clinic represents small businesses and technology start-ups with business structure and incorporation, contracts, intellectual property, and preparing companies for investment.36 the university of portsmouth, intellectual property advice and support service (ipass) advises its students and alumni on company formation and ideation, intellectual property and invention commercialization.37 at the legal advice centre at queen mary university of london 33 id. 34 id. 35 id. it is unclear whether these local professionals are lawyers. 36 the city law school university of london, https://www.city.ac.uk/law (last visited june 29, 2018). 37 university of portsmouth, ipass (intellectual property advice and support services) intellectual property office, http://www.port.ac.uk/media/contacts-and-departments/pbs/law/fastforward-2012-winners-ipass-final-ip-clinicfor-student-and-graduate.pdf (last visited july 15, 2018). http://www.port.ac.uk/media/contacts-and-departments/pbs/law/fastforward-2012-winners-ipass-final-ip-clinic-for-student-and-graduate.pdf http://www.port.ac.uk/media/contacts-and-departments/pbs/law/fastforward-2012-winners-ipass-final-ip-clinic-for-student-and-graduate.pdf reviewed article – clinic, the university and society 96 (queen mary) law students offer free advice to “income eligible” for profit companies and nonprofit social enterprises on a broad range of businesses, commercial and intellectual property issues.38 in 2013 queen mary’s centre for commercial law studies created “qlegal”, a program offering legal and regulatory advice to information and communication technology early stage start-ups.39 southhampton law school has a pro bono initiative run by final year llb students “in conjunction with specialist lawyers” designed to facilitate the students’ “development of key skills, including client interviewing, team-work and case management.”40 the university of south wales in pontypridd has a legal and financial advice clinic which advises small businesses and social enterprises. business enterprises are not eligible for free legal advice through government programs, a goal of the clinic is to fill a gap in legal assistance for individuals who need help operating a business.41 it appears that the european network of law incubators (ilinc), which helps businesses and is assisted by law students, has also been a champion of blcs. the goal of ilinc is to build european capacity to provide legal advice to information, communications and technology start-ups and entrepreneurs. its service delivery includes direct client representation, workshops and internet portals. ilinc’s partner 38 legal advice centre, queen mary legal advice centre, http://www.lac.qmul.ac.uk/ (last visited jan. 22, 2018). 39 qlegal: the small print for big ideas, http://www.law.qmul.ac.uk/research/funded/qlegal/ (last visited oct.10, 2018). 40 southampton law school, https://www.southampton.ac.uk/law/index.page (last visited jan 29, 2018). 41 legal advice clinic, https://www.southwales.ac.uk/about/faculties-and-schools/school-law-accounting-andfinance/legal-and-financial-advice/ (last visited oct. 30 2018). http://www.law.qmul.ac.uk/research/funded/qlegal/ https://www.southwales.ac.uk/about/faculties-and-schools/school-law-accounting-and-finance/legal-and-financial-advice/ https://www.southwales.ac.uk/about/faculties-and-schools/school-law-accounting-and-finance/legal-and-financial-advice/ reviewed article – clinic, the university and society 97 institutions include queen mary university of london, kuleuven, universitat hamburg and universiteir van amsterdam where students are able to provide legal advice on a very broad range of legal issues under the supervision of qualified lawyers.42 b. blcs in canada: the university at windsor (windsor law) in windsor, canada has an international ip law clinic that works in association with the university of detroit mercer. 43 this clinic represents clients from the epicenter, which houses “programs and services … to help students and recent graduates start and grow their businesses.”44 the legal representation includes patent and trademark searches and legal opinions. this cross border blc is believed to be the first of its kind in the u.s. or canada.45 western university business law clinic (wblc) in london, ontario, canada aims to “alleviate the burden of legal complexities put on aspiring entrepreneurs by providing 42 legal advice centre; see, also, the hans-bredow-institut, https://bib.hans-bredowinstitut.de/en/forschung/ilinc-establishing-european-network-law-incubators-0 (last visited jan. 22, 2018) (“the hans-bredow-institut is collaborating with queen mary and westfield college at the university of london, the university of amsterdam and the catholic university of leuven to conduct the project, ilinc: establishing a european network of law incubators that bridge ict entrepreneurs and start-ups with law students,” as supported by the eu commission.”). 43 in canada there is evidence of blc creation in 2010. email from myra tawfik, professor of law, university at windsor explaining that the center for enterprise and law, created in 2010 is not defunct but in 2013 it became “the epicentre for entrepreneurial education and practice”. the law, technology and entrepreneurship clinic (ltec) was “affiliated with the epicentre” but in 2015 ltec became the international ip law clinic. 44 university of windsor, epicenter, http://www.epicentrewindsor.ca (last visited june 13,2018). (the epicenter has three “epic” components: 1) a membership program where students use the business model canvas to test their ideas before joining other epicentre programs 2) the rbc epic founders program teaches business founders about the lean startup model and the business model canvas and 3) a membership incubation program for students, alumni and industry associates.). 45 law students get hands-on experience through joint international intellectual property law clinic, university of windsor, http://www.uwindsor.ca/law/2018-02-20/law-students-get-hands-experience-through-jointinternational-intellectual-property-law (last visited on oct. 10, 2018). https://bib.hans-bredow-institut.de/en/forschung/ilinc-establishing-european-network-law-incubators-0 https://bib.hans-bredow-institut.de/en/forschung/ilinc-establishing-european-network-law-incubators-0 http://www.epicentrewindsor.ca/ http://www.uwindsor.ca/law/2018-02-20/law-students-get-hands-experience-through-joint-international-intellectual-property-law http://www.uwindsor.ca/law/2018-02-20/law-students-get-hands-experience-through-joint-international-intellectual-property-law reviewed article – clinic, the university and society 98 small startup businesses with pro bono legal counsel…traditional legal-aid-type clinics are becoming common in canadian law schools, and provide a superb learning opportunity for students interested in areas such as family law, criminal law and litigation. in contrast, the wblc’s focus on assisting small-business clients in the wide realm of corporate law provides students with a particularly unique experience.”46 clients must meet certain eligibility criteria in order to be represented by this clinic. they must be located in southwestern ontario or the surrounding area, unable to afford legal counsel, cannot have received prior legal help from a lawyer, have less than $100,000 revenue, must have been in business for at least one year, must be approved by the wblc faculty review counsel, provide meaningful work to clinic students, and be committed to and enthusiastic about their business.47 wblc is student run and the students have faculty supervisors as well as outside mentor lawyers. thirty-six law students work in teams of three. “student volunteers are hired in their first year for a three-year commitment, so their experience within the clinic can evolve. students in their first year perform mostly research; second years’ get to fulfill a leadership role as file manager; and third years’ use their previous experience to advise their colleagues in a supervisory and consultative capacity.”48 the legal matters have included new business incorporations, drafting shareholder agreements or employment contracts and working with 46 id. 47 western business law clinic: becoming a client, https://law.uwo.ca/legal_clinics/western_business_law_clinic/becoming_a_client.html (last visited oct. 10, 2018). 48 id. https://law.uwo.ca/legal_clinics/western_business_law_clinic/becoming_a_client.html reviewed article – clinic, the university and society 99 trademarks. a tutoring company and a community tennis club are examples of clients at this clinic. the law & business clinic at ryerson university in ontario, canada (ryerson law & business clinic) was founded by dr. pnina alon-shenker, an associate professor in the department of law and business.49 the clinic uses an outside counsel model,50 and students are supervised “by a team of qualified lawyers from bay st. law firms who work in tandem with ryerson law & business students.”51 selected “clients … are some of canada’s future business leaders.”52 legal services include business organizations, partnership and joint venture agreements, non-disclosure, non-competition and employment agreements, intellectual property, contracts, tax and regulatory compliance.53 established in 2009, the queens business law clinic (qblc) in kingston, ontario, canada represents start-ups, entrepreneurs, businesses and non-for-profit organizations. students are supervised by a program director and “two part-time lawyers who serve as review counsel.”54 the students receive academic credit for their client work reviewing 49 law and business clinic: about us, https://www.ryerson.ca/tedrogersschool/lawbusinessclinic/about-us/ [hereinafter ryerson law and business clinic] (last visited oct. 24, 2018). 50 see alicia plerhoples and amanda spratley, engaging outside counsel in transactional law clinics, 20 clinical l. rev. 379 (mar. 24, 2014). 51 ryerson law and business clinic. 52 lawyers, https://www.ryerson.ca/tedrogersschool/lawbusinessclinic/lawyers/ (last visited oct. 30 2018). 53 law and business clinic: about us, https://www.ryerson.ca/tedrogersschool/lawbusinessclinic/about-us/ (last visited oct. 24, 2018). 54 queen’s university law clinics: business law clinic, https://queenslawclinics.ca/business-law [hereinafter queen’s university business law clinic] (last visited oct. 24, 2018). https://www.ryerson.ca/tedrogersschool/lawbusinessclinic/about-us/ https://www.ryerson.ca/tedrogersschool/lawbusinessclinic/lawyers/ https://www.ryerson.ca/tedrogersschool/lawbusinessclinic/about-us/ https://queenslawclinics.ca/business-law reviewed article – clinic, the university and society 100 documents such as leases, privacy policies, trademark registrations and contracts.55 students also speak to local business groups about legal business issues.56 case work is supported by a two-semester credit course.57 york university’s osgoode hall law school in toronto boasts two blcs, the ip osgoode innovation clinic (oic) and the osgoode venture capital clinical project (ovc), an outside counsel clinic model. oic, founded and directed by professor giuseppina d’agostino in 2010, “is a needs-based, innovation-to-market legal clinic” operated in collaboration with innovation york58 and norton rose fulbright canada llp. osgood hall law school student volunteers, known as clinical innovation fellows are supervised by lawyers from the aforementioned firm and exposed to business law issues and “actors in the innovation ecosystem.” 59 the clinic offers “one-to-one legal information services to inventors, entrepreneurs, and start-up companies to assist with the innovation and commercialization processes.”60 in the ovc, students work with lawyers from wildeboer dellelce llp as caseworkers, advising early stage business ventures.61 55 queen’s university law clinics: business law clinic: services, https://queenslawclinics.ca/business-law/services (last visited oct. 30, 2018). 56 business law clinic, https://law.queensu.ca/programs/jd/student-experience/clinics/business-law-clinic (last visited oct. 30, 2018) 57 queen’s university business law clinic. 58 york university, http://www.yorku.ca/index.html (last visited jun. 29, 2018). 59 intellectual property law & technology program, ip osgoode innovation clinic, http://www.iposgoode.ca/ccr-iposgoode-innovation-clinic/ (last visited jun. 29, 2018). 60 id. 61 the hennick centre for business and law, osgoode venture capital clinic, https://hennickcentre.ca/fellowships/osgoode-venture-capital-clinic (last visited jun. 29, 2018). https://queenslawclinics.ca/business-law/services https://law.queensu.ca/programs/jd/student-experience/clinics/business-law-clinic http://www.yorku.ca/index.html http://www.iposgoode.ca/ccr-ip-osgoode-innovation-clinic/ http://www.iposgoode.ca/ccr-ip-osgoode-innovation-clinic/ https://hennickcentre.ca/fellowships/osgoode-venture-capital-clinic reviewed article – clinic, the university and society 101 in montreal, canada, mcgill law school has a longstanding legal information clinic, “a student run, bilingual and free legal information service” committed to “meeting the needs of marginalized groups.”62 started by law students in 197363 it offers advice-only services that have expanded to business matters, including nonprofit incorporations.64 c. blcs in australia: curtin university in perth, western australia provides advice to small businesses as does the university of canberra law school in bruce, canberra, australian capital territory “in conjunction with the legal aid act.”65 students from the university’s school of law & justice assist qualified legal practitioners from the canberra profession in providing initial advice during the consultation.”66 in another example from australia, the start-up law clinic is a collaboration between the bond university faculty of law, bond’s faculty of business transformer program and flow legal, a legal consulting firm.67 under lawyer supervision, students in the start-up law clinic volunteer for two hours a week to provide legal information (but not advice) to entrepreneurs in the transformer 62 legal information clinic: about us, http://licm.mcgill.ca/legal-information-clinic/ (last visited oct. 10, 2018). 63 legal information clinic: about us-history, http://licm.mcgill.ca/legal-clinic-history/ (last visited oct. 10, 2018). 64 legal information clinic: our services-free legal information, http://licm.mcgill.ca/legal-clinic-free-legalinformation/ (last visited oct. 10, 2018). 65 legal advice clinic for small businesses, https://www.canberra.edu.au/about-uc/faculties/busgovlaw/aboutus/school-of-law/legal-advice-clinic-for-small-business (last visited oct. 10, 2018). 66 id. 67 start-up law clinic, https://bond.edu.au/intl/current-students/opportunities/bond-law-clinic/startup-law-clinic (last visited oct. 10, 2018). http://licm.mcgill.ca/legal-information-clinic/ http://licm.mcgill.ca/legal-clinic-history/ http://licm.mcgill.ca/legal-clinic-free-legal-information/ http://licm.mcgill.ca/legal-clinic-free-legal-information/ https://www.canberra.edu.au/about-uc/faculties/busgovlaw/about-us/school-of-law/legal-advice-clinic-for-small-business https://www.canberra.edu.au/about-uc/faculties/busgovlaw/about-us/school-of-law/legal-advice-clinic-for-small-business https://bond.edu.au/intl/current-students/opportunities/bond-law-clinic/startup-law-clinic reviewed article – clinic, the university and society 102 program.68 the legal issues range from business structure to intellectual property and financing.69 there are also experiential learning opportunities – a research and consulting model aligned with blcs. the university of new south wales in sydney, houses one such model, the social impact hub, an experiential learning program and consulting service that works with “industry, social enterprises, not-for-profits and foundations to develop and conduct a variety of applied projects in different areas of social impact.”70 students working in the program do not enter into lawyer-client relationships but instead offer research assistance to projects in social entrepreneurship, social innovation and social finance, philanthropy, impact investing, business and human rights, corporate social responsibility, law and social movements, collective impact, and pro bono and volunteerism.71 d. blcs in croatia and georgia: a blc in croatia at the josip juraj strossmayer university in osijek is a collaboration between law and economics faculty to create a clinic that helps start-up entrepreneurs.72 law students work in teams to provide legal advice to entrepreneurs and start-up 68 id. 69 id. 70 about, social impact hub, https://www.socialimpacthub.org/about/ (last visited oct. 10, 2018). 71 lawstudents, social impact hub, http://www.socialimpacthub.org/law-students/ (last visited oct. 10, 2018). 72 about us, legal-economic clinic, https://www.pravos.unios.hr/katedra-trgovackog-prava/about-us (last visited oct. 10, 2018). https://www.socialimpacthub.org/about/ http://www.socialimpacthub.org/law-students/ https://www.pravos.unios.hr/katedra-trgovackog-prava/about-us reviewed article – clinic, the university and society 103 companies and help them with formation documents while economics students provide industry analyses.73 free university in tbilisi, georgia opened its national center for commercial law legal clinic in 2012.74 that clinic provides legal assistance on commercial matters to entities and individuals. upper level students provide legal assistance under the supervision of lecturers of free university or legal practitioners.75 in summary, blcs representing, advising and informing real clients and “blc-like” experiential learning opportunities are growing worldwide. while the historic context for the development of these clinics may differ, they have a common goal to teach students about business law through an experiential lens. as noted earlier in this article, the rise of blcs mirrors global interest in entrepreneurship generally. muhammad yunus, nobel peace prize laureate, founder of the grameen bank in bangladesh, and “one of the greatest entrepreneurs of our time”76 according to fortune magazine, observes, “every time i see a problem, my mind works in the direction of creating a business to solve it.”77 dr. yunus’ observations about the importance of 73 id. 74 mission, national center for commercial law, http://nccl.ge/en/16 (last visited jan. 22, 2018). 75 id. 76 john a. byrne. “the 12 greatest entrepreneurs of our time.” fortune magazine. apr. 9 2012. http://archive.fortune.com/galleries/2012/news/companies/1203/gallery.greatest-entrepreneurs.fortune/13.html (last visited oct. 24, 2018). 77 logan werlinger, muhammad yunus awarded george washington university president’s medal, gw today, (oct. 31, 2016) available at https://gwtoday.gwu.edu/muhammad-yunus-awarded-george-washington-universitypresident%e2%80%99s-medal (last visited jan. 22, 2018). http://nccl.ge/en/16 http://archive.fortune.com/galleries/2012/news/companies/1203/gallery.greatest-entrepreneurs.fortune/13.html https://gwtoday.gwu.edu/muhammad-yunus-awarded-george-washington-university-president%e2%80%99s-medal https://gwtoday.gwu.edu/muhammad-yunus-awarded-george-washington-university-president%e2%80%99s-medal reviewed article – clinic, the university and society 104 entrepreneurship today are instructive especially during these tumultuous times.78 in 2016, before an audience of university students, he advocated for a “three zeros platform” for systemic change and transformation from a non-greed based civilization to a humanvalue based civilization: zero poverty; zero unemployment and zero net carbon emissions.79 this platform is based on the premise that the economic structures that exist today are running in a wrong direction because they push all the wealth to the top.80 wealth concentration is increasing daily leaving insufficient resources at the middle and the bottom.81 indeed, one percent of the world’s population has more than 99 percent of the world’s wealth and today only 62 people on the planet own more wealth than the bottom half of the entire population.82 demonstrating the speed of wealth concentration with the example noting that in 2010, of 388 people owned more than the bottom 50 percent of the world’s population,83 yunus argues that this terrifying pace of wealth concentration is unsustainable. dr. yunus goes on to add that the global wealth gap creates unhappiness in the bottom and the middle 78 see, e.g., about, halcyon house, http://halcyonhouse.org/ (last visited jan. 22, 2018); see, e.g., echoing green: funding social entrepreneurship & innovation, http://www.echoinggreen.org/ (last visited jan. 22, 2018) (a few social enterprise incubators such as halcyon house and echoing green support social enterprises.). 79logan werlinger, muhammad yunus awarded george washington university president’s medal, gw today, (oct. 31, 2016) available at https://gwtoday.gwu.edu/muhammad-yunus-awarded-george-washington-universitypresident%e2%80%99s-medal (last visited jan. 22, 2018). 80 id. 81 erik simanis and duncan duke, profits at the bottom of the pyramid (oct. 2014),https://hbr.org/2014/10/profitsat-the-bottom-of-the-pyramid. 82 id. at 11; see also nick bryer, richest 62 people as wealthy as half of world's population, says oxfam, the guardian, https://www.theguardian.com/business/2016/jan/18/richest-62-billionaires-wealthy-half-worldpopulation-combined (last visited jan. 22, 2018). 83 werlinger, infra note 115. http://halcyonhouse.org/ https://gwtoday.gwu.edu/muhammad-yunus-awarded-george-washington-university-president%e2%80%99s-medal https://gwtoday.gwu.edu/muhammad-yunus-awarded-george-washington-university-president%e2%80%99s-medal https://hbr.org/2014/10/profits-at-the-bottom-of-the-pyramid https://hbr.org/2014/10/profits-at-the-bottom-of-the-pyramid https://www.theguardian.com/business/2016/jan/18/richest-62-billionaires-wealthy-half-world-population-combined https://www.theguardian.com/business/2016/jan/18/richest-62-billionaires-wealthy-half-world-population-combined reviewed article – clinic, the university and society 105 of societies because they cannot share in the wealth entrepreneurship though avenues such as social business can change wealth accumulation as entrepreneurs are wealth accumulators and not simply contributors to the one percent.84 in the end, dr. yunus contends there are “three powers” that will enable a three zeros of poverty, unemployment and emissions. the first is social businesses defined as non-loss, nondividend companies designed to address social problems.85 the second is young people who see the new world from new perspectives abandoning the structures that created many of the societal problems, giving way to new structures and possibilities.86 the third is technology, but not used as it is now, by “money makers or war makers,” but with a new social direction.87 he asserts that these are the foundations for transformation from a non-greed based civilization to a human-value based civilization.88 building on the foundation provided by professor yunus’ work, it is noteworthy that some blcs represent worker-owned cooperatives,89 while others represent clients advocating for solidarity economies promoting just, equitable and sustainable economic structures.90 84 muhammad yunus @ gw 10.26.16, youtube(oct. 27, 2016) (dr. yunus invited the students to consider whether they are thwarting their life’s purpose by working for the ninety-nine percent to make them wealthier.). 85 id. 86 id. 87 id. 88id. 89 see generally, carmen huertas-noble, promoting worker-owned cooperatives as a ced empowerment strategy: a case study of colors and lawyering in support of participatory decision-making and meaningful social change, 17 clinical l. rev. 225 (2010). 90 u.s. solidarity economy network, https://ussen.org/ (last visited oct. 30, 2018). https://ussen.org/ reviewed article – clinic, the university and society 106 part iv: the unique programmatic aspects of blcs a. redefining “practice-ready”: social justice in western europe, hailed as “the last holdout” in cle by professor rick wilson,91 the past decade has seen a boon in legal clinics, evidenced by the european network for clinical legal education (“encle”), which launched in 2012.92 encle has been very instrumental in supporting clinical legal educators and states as its main objectives to: “pursue and promote social justice and diversity as core values of the legal profession, improve the quality of legal education, foster awareness of fundamental rights and the mechanisms to enforce them, and promote an understanding of how domestic law and european law interact in practice.”93 it is not surprising that encle includes the promotion of social justice as one of its primary objectives. as european schools embraced cle, a social justice focus addressed the legal needs of those at the margins of society.94 and, as legal clinics around the world looked to long established clinics in the u.s. as guides for design, the traditional social justice emphasis was evident. 91 rick wilson, western europe: last holdout in the worldwide acceptance of clinical legal education, 10 german l.j. 823, 831 (2009). 92 what is encle?, european network for clinical legal education (encle), http://encle.org/about-encle/what-isencle, (last visited jan. 22, 2018) (encle is a network of persons and institutions who are committed to the growth and quality of clinical legal education programs in europe). 93 id. 94 id. reviewed article – clinic, the university and society 107 recently, however, the social justice paradigm has been challenged by some business law clinicians in the u.s., who quite directly question whether their clinics should be obliged to carry out a social justice mission.95 for others in the u.s., the mere suggestion of a legal clinic without a social justice mission is anathema. “the founders of the modern era of clinical legal education did not envision clinical education simply as a way to enrich legal education with practical experience and skills training… clinics need not, and should not, abandon their social justice roots, even as they develop new and innovative approaches to clinical education.” 96 yet, some reject the notion that cle requires a social justice focus and, instead, argue that students are better served by a broader pedagogical view: clinical pedagogy is the multi-faceted jewel in the crown of clinical legal education. preparation, performance, and reflection are key elements to any clinical experience regardless of subject-matter. the signature feature of clinical pedagogy is the students’ placement in the primary role of representative, where faculty members use those experiences as focal points for further inquiry. this pedagogy can be applied in any clinical experience and unlocks discussions about varied political, economic, and social issues. clinical faculty should bring that experience to more 95 see lynnise e. pantin, the economic justice imperative for transactional law clinics, 62 vill. l. rev. 175, 175-211 (2017) (“…there is substantial debate about whether social justice should be a primary or secondary goal or even a goal at all in the design of such a clinic, further raising questions about the justice-oriented lawyering happening in a business law practice”); praveen kosuri, losing my religion: the place of social justice in clinical legal education at 331. 96 stephen wizner, is social justice still relevant?, 32 b.c.j.l. & soc. just. 345, 347 (apr. 2012), http://lawdigitalcommons.bc.edu/jlsj/vol32/iss2/7. reviewed article – clinic, the university and society 108 students regardless of whether it explicitly includes traditional notions of social justice.97 not surprisingly, opinions about the place of social justice in blcs are not restricted to geographic boundaries. in the u.k., some scholars have argued that transactional law clinics should focus their resources on helping those on the margins of society find access to justice.98 others in the u.k., such as professor campbell, see a greater educational value in providing opportunities for students to learn practice and ethical lessons through transactions that generally do not occur when representing the poor.99 while campbell clearly sees the benefits of providing access to justice for the most disadvantaged in society, especially in the face of less government-funded support, she believes “that there are lessons that transactional law clinics can offer that clinics for underrepresented individuals do not.”100 there are a number of practice and ethical issues that arise in transactional law clinics that do not in clinics for the poor.”101 even without a social justice mission, campbell points out that her clinic’s representation of medium to high income businesses can still contribute to a rise in economic prosperity, which she says, is its own “social good.”102 97 kosuri at 339. 98 elaine campbell, recognizing the social and economic value of transactional law clinics: a view from the united kingdom at 581. 99 id. at 591. 100 id. 101 id. 102 id. reviewed article – clinic, the university and society 109 much of the discussion around the place of social justice in blcs seems to create an all or nothing paradigm. but professor lynnise pantin points out that blcs do not have to choose between having a social justice mission and producing practice-ready students. pantin posits that “students can learn corporate skills in preparation for practice while accomplishing the social justice goals aligned with the missions of clinical education.”103 pantin acknowledges the need for practice-ready graduates, but labels the prioritization of practice-readiness over social justice as “misguided at best” and failing “our students at worst.”104 pantin argues that “practice-ready” in the blc context should be revised.105 instead of an incidental social good that may arise in non-indigent transactional clinical practice, pantin calls for a clear methodology for incorporating economic and social justice into the transactional clinical space.106 given the persistent social and economic injustices in the world, pantin believes that when blc students learn contract drafting techniques, they should also have an understanding of economic justice.107 practice-readiness, she concludes, should always include social justice for two reasons: “attorneys should do pro bono work in addition to their paid corporate work, and transactional attorneys are necessary to complete impactful transactional work after graduation from law school.”108 103 pantin at 175-211, 179. 104 id. 105 id. at 181. 106 id. at 180. 107 id. at 181. 108 id. reviewed article – clinic, the university and society 110 professor alina ball has also critiqued and criticized the practice-ready dominant narrative arguing for the integration of critical legal theory into blcs. according to professor ball, critical legal theory and clinical legal theory are aligned in the view that the “law is made, not found”109 and that it is “based on human experience, policy, and ethics rather than formal logic. legal principles are not inherent in some universal, timeless logical system; they are social constructs, designed by people in specific historical and social contexts for specific purposes to achieve specific ends. law and legal reasoning are a part of the way we create our form of life.”110 properly designed blcs are fascinating laboratories for examining the historical and social context of business law as evidenced by new business forms ranging from l3cs to benefit corporations, capturing new “social contexts for specific purposes to achieve specific ends”111 in the form of hybrid corporate entities. u.s. entrepreneurship most notably through the lens of the horatio alger, “rags-to-riches” story, challenged as myth, and the notion that everyone can pull themselves up by their own bootstraps continues into today’s culture of disruption, innovation and entrepreneurship.112 steve jobs, founder of apple computers, dropped out of college to become a founder of that renown 109 alina s. ball, disruptive pedagogy: incorporating critical theory in business law clinics, 22 clin. l. rev. 1, 28 (2015) (citing, n. 156) (citing joseph w. singer, legal realism now, 76 cal.l. rev. 465, 474 (1988)). 110 id. 111 id. 112 bernard sarachek, american entrepreneurs and the horatio alger myth, 38 j. of econ. history 439, 439, http:www.jstor.org/stable/2119834 (last visited jan. 21, 2018). reviewed article – clinic, the university and society 111 start-up,113 signaling to others the power of hard work and entrepreneurship. while blcs work with a range of clients, most state bar rules authorizing law students’ practice with clients during enrollment in legal clinics, require that students work with low income clients or individuals or groups unable to afford market rate legal services. given the high cost of legal services, there is a significant range of eligible clients.114 in the u.s., community economic development (ced) clinics practicing business law have clear social and economic justice missions but newly emerging blcs, lacking a clear ced and perhaps a social entrepreneurship focus, do not necessarily incorporate social and economic justice into their curricula. the debate about whether blcs should have a social justice focus will likely continue for years. but, regardless of whether blcs cling to traditional social justice roots or instead choose to represent non-indigent clients in matters that will not directly impact marginalized communities, all clinical programs should prepare students to practice law in the 21st century and beyond. that requires expanding the meaning of “practice-ready” to a readiness to represent people from a variety of diverse backgrounds. it means exposing students to lessons of diversity and cultural consciousness so that they are prepared to represent clients who are not white, wealthy, and in positions of power. 113 brandon griggs, steve jobs: from college dropout to tech visionary, cnn, http://www.cnn.com/2011/tech/innovation/08/25/steve.jobs.profile/index.html, aug. 25, 2017 114 legal services corporation, america’s partner for equal justice, (2008) available at https://www.lsc.gov/sites/default/files/lsc/pdfs/documenting_the_justice_gap_in_america_2009.pdf (last visited jan. 21, 2018). http://www.cnn.com/2011/tech/innovation/08/25/steve.jobs.profile/index.html https://www.lsc.gov/sites/default/files/lsc/pdfs/documenting_the_justice_gap_in_america_2009.pdf reviewed article – clinic, the university and society 112 b. redefining “practice-ready”: cultural consciousness and power when the american bar association (“aba”) increased its skills requirement for law schools in 2015, law clinics were well positioned to fill the skills gap. the development and utilization of legal skills in a live-client environment is the hallmark of clinical pedagogy.115 clinics have been preparing law students to be practice ready for decades. but, what does practice-ready mean in the 21st century, in a century that will see a “majority-minority”116 for the first time in u.s. history? practice-ready must mean more than skills training and practical experience. even for those who choose not to incorporate social or economic justice ideals into their clinical program, practice ready can, and should, mean preparing law students to interact with other lawyers, business people, and clients from diverse backgrounds. it is easy to assume that social justice clinics always offer such experiences to students, but such presumptions should be challenged. referring to clinics that serve the poor and legally disenfranchised, professor spencer rand questioned, “what do students learn from a social security insurance case if they don’t learn to consider the values and biases built into a welfare system that has been created by people with money to discriminate 115managing director’s guidance memo standards 303(a)(3), 303(b), and 304 (mar., 2015), https://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/go vernancedocuments/2015_standards_303_304_experiential_course_requirement_.authcheckdam.pdf (last visited mar. 4, 2018) (note expanded definition of clinics, including non live-client and externships). 116 sarah carr, tomorrow’s test: americas schools are majority-minority. now what?, http://www.slate.com/articles/life/tomorrows_test/2016/06/american_is_becoming_a_majority_minority_nation _it_s_already_happened_in.html (last visited jan. 21, 2018). reviewed article – clinic, the university and society 113 between categories of people that have been deemed deserving of help? what do students learn from a landlord/tenant case if they don’t recognize it as an often unsuccessful alliance by those without property to negotiate laws that were created by and are designed to benefit the propertied?”117 or as noted in the business context, what do students learn about contract drafting if they don’t understand economic injustices and power imbalances that too often accompany such contracts?118 in a profession where the majority of practicing lawyers are still white and male, and where law schools still struggle to matriculate culturally diverse students in significant numbers, the likelihood that the profession will be unprepared for an increasingly culturally diverse market is high. studies show that, “interest in entrepreneurship among people of color is quite strong, but access to the resources to do it successfully is often a challenge.”119 from a client perspective, a diverse client base expects lawyers who are culturally proficient.120 cross-cultural competency is a term familiar to u.s. clinicians through the five habits scholarship of professors susan bryant and jean koh peters and in bryant’s seminal 117 spencer rand, teaching law students to practice social justice: an interdisciplinary search for help through social work’s empowerment approach, 13 clinical l. rev. 459, 461 (2006). 118 see pantin, supra note 28. 119 center for global policy solutions, entrepreneurship report, available at http://globalpolicysolutions.org/pressrelease-entrepreneurship-report/ (last visited jan. 22, 2018). 120 blanca banuelos, embracing diversity and being culturally competent is no longer optional, (march 22-24, 2012) available at https://www.americanbar.org/content/dam/aba/events/labor_law/2012/03/ethics_professional_responsibility_c ommittee_midwinter_meeting/mw2012_cultural_compentancy.authcheckdam.pdf (last visited jan. 22, 2018). reviewed article – clinic, the university and society 114 article on building cross-cultural competence in lawyers.121 bryant recognized the need for clinic students to analyze power imbalances in the lawyer-client relationship and how differences in race, national origin, gender, socio-economic status, and sexual identity shape that relationship.122 how can student attorneys help marginalized, low income and even middle income clients who are people of color if they are unaware of inclusive business practices123 and programs designed to address systemic racial segregation? bryant’s work has had an enduring impact on cle, and now, more than ever, cultural consciousness124 should be more fully integrated into clinical teaching regardless of whether the clinic adopts a social justice focus. the term “cultural consciousness” is used here instead of “cultural competence” in response to the evolving recognition that educating students to interact with diverse communities requires more than competence (knowledge, skills, and attitudes)125 and must involve a “critical consciousness,” a term borrowed from medical education literature and refers to “a reflective awareness of the differences in power and privilege and the inequities that are imbedded in social relationships.”126 even, or maybe especially, for those blcs whose clientele reflects the corporate clients that its students will someday represent in private 121 susan bryant, the five habits: building cross-cultural competency in lawyers, 8 clinical l. rev. 33, 33-34 (2001). 122 id. 123 insight, about the insight center, https://insightcced.org/about-the-insight-center/ (last visited jan. 22, 2018). 124 see arno k. kumagai, md, and monica l. lypson, md, beyond cultural competence: critical consciousness, social justice, and multicultural education, 84 acad. med. 782, 782 (jun., 2009). 125 id. 126 id. at 783. reviewed article – clinic, the university and society 115 firms, providing an understanding of cultural differences and power dynamics in transactional practice is critical to graduating practice ready lawyers. to illustrate, this is especially true as clinical programs respond to the educational motivations of millennials, who are service-oriented,127 but for whom the traditional clinic public service mission may seem outdated.128 clinical professors in the u.s. canada, europe, australia, and around the globe have a unique opportunity to help students recognize such imbalances and how they as clinic students, and later as attorneys, can help to transform the relationship between the law and power. c. millennials given the connection between social and technology driven entrepreneurship and millennials, it is useful to consider how this generation in particular may impact business law practice now and in the future. assessments of millennial generation law students, “born between 1981 and 1999, ranging in age from 14 to 31,129 suggest that this unique generation will require law faculty to rethink how it teaches. millennials also referred to as generation y, have been described as the greatest generation of optimistic entrepreneurs and a “hidden ‘powerhouse’ of potential” that is “leaving a lasting impression on the world and presenting unparalleled opportunity.”130 government 127 emily a. benfer and colleen f. shanahan, educating the invincible: strategies for teaching the millennial generation in law school, 20 clinical l. rev. 1, 7 [hereinafter educating the invincible] (nov. 8, 2013). 128 see karla mari mckanders, clinical legal education at generational crossroads: shades of gray, 17 u. tenn clinical l. rev. 223, 223 (oct. 27, 2010). 129 benfer, supra note 54, at 7. 130 id. at 1, 3-4. reviewed article – clinic, the university and society 116 regulations greatly impact business and the global consulting firm, deloitte, reports that millennials could not only “reenergize government” but “help to transform it into a highperforming twenty-first century organization with model workforce practices.”131 as explained below, collaboration and teamwork are essential lawyering skills and the millennials are pegged as “confident, team oriented, conventional, achieving and ambitious.”132 of particular interest to blc clinicians concerned with social justice, millennials want to better society and are “service and cause oriented.”133 bringing consumer perspectives to their education, millennials are goal-oriented; enjoy a facilitative, non-hierarchical, non-teacher centric classroom and their learning styles are focused on multimedia, teaching that is entertaining and exciting, using simulations or live clients.134 the learning outcomes set forth in the appendix, ranging from interviewing and counseling to problem solving and self-reflection, are aligned with the millennials’ need for structure and transparency, for example, understanding why an assignment is important. on the other hand, a reported challenge of working with millennial law students is their tendency toward fast pace action and multi-tasking resulting in their frustration with reflection and critical thinking, essential lawyering skills.135 131 educating the invincible at 3. 132 id. at 8. 133 id. 134 id. at 10-11. 135 emily a. benfer and colleen f. shanahan, educating the invincible: strategies for teaching the millennial generation in law school, 20 clinical l. rev. 1, 26 (nov. 8, 2013). reviewed article – clinic, the university and society 117 d. collaboration and beyond to fully prepare law students to engage effectively in global transactional markets, law schools world-wide would do well to focus more on collaborative learning.136 the benefits of learning and working in teams have been evident for many years. in 1992, the aba’s maccrate report “found that “cooperation among co-workers” was an essential element of efficient law office management.137 the maccrate report concluded that “effective collaboration with others” was a critical skill, “regardless of whether a lawyer is a solo practitioner, a partner or associate in a firm, or a lawyer in public service practice.”138 yet, twenty-five years later, most law schools still do not give collaboration high priority as a practice skill outside of clinics, legal writing, and skills courses. that is not to dismiss the significant teamwork many law professors incorporate into their podium or seminar classes. many professors regularly utilize small groups or pairings in first year classes to introduce students to working and problem-solving together. these and other active learning strategies can be very effective in the learning 136 tu law featured as a top experiential learning program in europe, https://law.utulsa.edu/2018/02/02/tu-lawselected-best-study-abroad-program-europe/ (last visited mar. 6, 2018); see also smyth, gemma, hale, samantha gold, and neil, clinical and experiential learning in canadian law schools: current perspectives, canadian bar rev., 95, 175, https://scholar.uwindsor.ca/lawpub/49(currently “osgoode hall has developed a three-pronged approach to its experiential ‘praxicum’ requirements: exposure to relevant law and context, substantial experiential engagement, and reflective practice”); see alsoxperiential learning offshore study, the university of sydney law school, https://canvas.sydney.edu.au/courses/4533/pages/experiential-learning-offshore-study (last visited mar. 6, 2018) (currently the university of sydney law school offers an offshore program to supplement study in australia toward master of laws degree (llm) or may also count as electives towards an llb or jd degree. the units are taught on an “intensive basis – usually over four or five successive days – with some interim assessment components” completed at a later time, though this is not a part of the regular curriculum). 137 michael i. meyerson, law school culture and the lost art of collaboration: why don’t law professors play well with others? 93 neb. l.rev. 547, 557 (2014). 138 id. https://scholar.uwindsor.ca/lawpub/49 https://canvas.sydney.edu.au/courses/4533/pages/experiential-learning-offshore-study reviewed article – clinic, the university and society 118 process, but they are not usually designed with the purpose of developing competencies in professional teamwork (although that may be a valuable by-product). though exceptions exist, few podium professors devote a significant amount of class time to collaborative learning as a core competency measure.139 such resistance exists even though non-clinical professors agree that developing effective collaborative skills is an important learning objective. 140 still, “many believe that teaching and assessing students' collaborative interpersonal skills is impractical.”141 this dearth of collaborative learning spaces in law schools has a number of causes. a primary cause is familiar to anyone who has been exposed to the traditional culture of law school from movies and books – rival students competing for grades. some of the blame for this competition goes to law school grading policies that reinforce the competitive culture. “most law schools require their faculty “to apply some standardized mean or curve in awarding [their] grades. mandatory grade curves send the (accurate) message that success is only to be determined by besting your classmates, not by the absolute measure of your understanding.”142 but, arguably, professors share the blame for the competitive culture. “[l]aw students learn more than just law from their professors. they also learn what it means to be a lawyer. in terms of their psychological 139 see sophie m. sparrow, can they work well on a team? assessing students' collaborative skills, 38 wm. mitchell l. rev. 1162, 1165 (2012). 140 sparrow at 1663-64. 141 id. at 1164. 142 myerson at 556. reviewed article – clinic, the university and society 119 and intellectual development, [p]robably the greatest role models for students are faculty members themselves. to the extent that law professors avoid collaboration, so will their students.”143 the consequences of the legal academia’s disregard of collaborative learning are many, and increasingly harmful in a global society. “among the many critiques of legal education are criticisms that law students do not graduate with effective emotional intelligence skills in particular, they have not learned to work well with others.”144 and, working well with others is crucial, both in domestic and international lawyering. as a recent study concluded, ““most legal work in 2013— at least the high-value work that attorneys and law firms coveted— required multiple attorneys to work together. collaboration was, in fact, extremely valuable to firms: it allowed them to take on increasingly sophisticated client work, which in turn let them charge higher prices.”145 increased globalization also has led to american lawyers working more with lawyers in other countries: “counsel must frequently collaborate across geographic and cultural boundaries with far-off partners to ensure that work is aligned with the client’s global strategy and accounts for country-specific issues.”146 143 myerson at 555; see also, janet weinstein, linda morton, howard taras and vivian reznik, teaching teamwork to law students, 63 j. legal educ. 36, 36 (aug. 2013) (“law professors unfamiliar with teamwork theory and practice are unlikely to use teams to engage students in learning.”). 144 sparrow at 1662. 145 debra cassens weiss, biglaw firm reveals nuts and bolts of its pay system in harvard case study on collaboration, aba journal (oct. 15, 2013) available at http://www.abajournal.com/news/article/biglaw_firm_reveals_nuts_and_bolts_of_its_pay_system_in_harvard_ca se_study/news/article/do_you_volunteer_on_a_regular_basis/?utm_campaign=sidebar (last visited jan. 22, 2018). 146 myerson at 561. http://www.abajournal.com/news/article/biglaw_firm_reveals_nuts_and_bolts_of_its_pay_system_in_harvard_case_study/news/article/do_you_volunteer_on_a_regular_basis/?utm_campaign=sidebar http://www.abajournal.com/news/article/biglaw_firm_reveals_nuts_and_bolts_of_its_pay_system_in_harvard_case_study/news/article/do_you_volunteer_on_a_regular_basis/?utm_campaign=sidebar reviewed article – clinic, the university and society 120 if we recognize that “group work is routinely understood as one of the most effective learning methods based on the principles that learning is “inherently social” and “an active process”147 and clearly see the need to prepare law students for a collaborative practice, how do we achieve that in a law clinic setting? law clinics, particularly blcs, have always been an exception to the individualistic approach of law school learning.148 blc student attorneys commonly work in pairs or small groups. in this collaborative model the students are responsible for both their own learning and contribute to and support the learning of their co-counsels. when the model works, the whole is greater than the sum of its parts. but, while student pairing often meets the goal of work allocation and having another set of eyes and ears in a client meeting, too often the pairing is not designed to meet the goal of developing collaborative interpersonal skills. meeting that goal takes intention, even for clinical programs where interpersonal skills are emphasized. the benefits from collaborative work and teaching teamwork as a skill are many. students learn critical life skills including “communication, planning and coordination, leadership and cooperation, as well as conflict resolution, problem solving, and creative thinking.” 149 these skills are helpful for any area of legal practice, but especially in business practice, where client businesses often count the ability to work in a team as one 147 a. rachel camp, creating space for silence in law school collaborations, 65 j. legal educ. 897, 898 (2016). 148 camp at 897 (“in many clinical programs, collaboration—through team pairings and group work—has long been the norm…” though, litigation clinics commonly use an individual approach). 149 teaching teamwork to law students at 38. reviewed article – clinic, the university and society 121 of the top five characteristics necessary to secure a position.150 such business clients “expect firms to work effectively across departments, offices, and even jurisdictions.”151 one of the reasons driving the value of collaboration among business clients is the changing nature of the legal work being done. due to increased globalization and business consolidation, legal work has become “increasingly complex, multi-disciplinary and international.”152 in addition, law firms have begun to “outsource” some legal work to less expensive foreign lawyers.153 this so-called “legal process outsourcing” requires “good communications skills, along with the ability to motivate workers from different organizations, negotiate and administer service contracts, assemble effective teams, and plan for and respond to contingencies. in other words, american lawyers need to learn how to collaborate with their international colleagues, just as they must learn to collaborate here at home.” 154 failure to incorporate this critical skill into clinical pedagogy may result in the realization of british professor richard susskind’s prediction that law schools will continue to produce 20th century lawyers in the 21st century.155 susskind urges collaboration not only among lawyers, but also among law firms, saying that 21st century clients expect as much.156 150 id. at 40. 151 id. 152 myerson at 560-61. 153 id. 154 id. 155 richard susskind, tomorrow’s lawyer, oxford univ. press (2d ed. may 25, 2017). 156 id. reviewed article – clinic, the university and society 122 at the same time, law school curricula and clinicians must not swing the pendulum to the other extreme in focusing on collaborative learning as the end goal. doing so tends to “isolate and ignore individuals who do their best work when given space to contemplate and consider ideas alone, and instead reward[s] those who are the loudest and most comfortable within the collaborative space.”157 in her book, quiet: the power of introverts in a world that can’t stop talking, susan cain, an attorney, voices a similar concern. cain argues that our institutions are designed for extroverts and that there is a bias against introverts.158 cain notes that collective thinking strategies favor dominant extroverts, but cautions that forced and inflexible teamwork can actually stifle creativity and lead to destructive behavior.159 cain cites to the financial crisis as an example of groupthink dominated by extrovert leaders.160 considering the many benefits of collaborative learning and the expectation of collaborative lawyering, law clinics, and blcs in particular, should include collaboration as a learning objective. clinical professors should teach the skill of collaboration while honoring differing personalities in the room by clearly communicating that students who use “deliberation, contemplation and quiet reflection”161 are valued as much as the students who quickly and comfortably participate in the classroom. collaborations fail 157 camp at 899. 158 susan cain, quiet: the power of introverts in a world that can't stop talking, 1-19 (may 2, 2017). 159 id. 160 id. 161 camp at 899. reviewed article – clinic, the university and society 123 often because of a lack of understanding about how people work best to achieve the end goals and not because there is something inherently wrong with the collaboration in and of itself.162 given the fast-paced nature of business and the associated need for rapid innovation, collaboration is critical in business environments. accordingly, we have highlighted the importance of this skill in blcs. as the blc learning outcomes in the appendix makes clear, the lawyering competencies learned in blcs are the same as those in litigation clinics, namely: case theory and development; fact-gathering; client centered interviewing and counseling; problem-solving and judgment; negotiation, persuasion and advocacy; professionalism, cross cultural competence, social justice and systemic critique; self-evaluation, reflection and learning from experience. part v: the significance of blcs now “global development is entering a phase where entrepreneurship will increasingly play a more important role. there are at least three reasons for this, each particular to certain types of countries. firstly, in the west, the managed economy of the 1970s-2000s, characterized by reliance on big business and mass production, has given way to a socalled entrepreneurial economy. here knowledge-driven goods and services are now 162 id. reviewed article – clinic, the university and society 124 more flexibly provided by smaller firms, and the emergence of a creative class requires a less interfering but more facilitating state.”163 the united nations university world institute for development economics research (unu-wider) has focused on the role of entrepreneurship in economic development. that research concludes that entrepreneurship will “contribute to growth and employment creation in advanced, emerging and least developed countries alike.”164 indeed, global problems, ranging from poverty and terrorism to climate change and migration, need entrepreneurial solutions.”165 this trend in global entrepreneurship is pronounced in western countries. according to the u.s.-based ewing marion kauffman foundation, entrepreneurship is affected by the changing nature of work.166 many americans are working as freelancers or microbusiness owners, leading economists and policymakers to label this form of work in new ways.167 “platform economy,” referring to a range of work relationships, the “sharing economy,” the “gig economy,” and the “on-demand economy,” are the most prevalent.”168 the platform economy, a menu of “alternative work arrangements,” is a noun describing “the collection of transactions occurring on online structures, which act 163 wim naude, entrepreneurs and economic development, united nations univ. (mar. 23, 2011), available at https://unu.edu/publications/articles/are-entrepreneurial-societies-also-happier.html. 164 id. 165 id. 166 ewing marion kauffman foundation, entrepreneurship policy digest, what the changing nature of work means for entrepreneurship (aug. 9, 2016), [hereinafter kauffman, changing nature of work] (last visited jan. 22, 2018). 167 id. 168 id. reviewed article – clinic, the university and society 125 as intermediaries between workers, customers and businesses.”169 significantly, all industries and wage and skill levels are found in the platform economy and it “may look like a traditional job (such as delivering food) or more like a micro-business (such as producing and selling craft goods on an online platform).”170 some researchers believe that the platform economy is rapidly growing and may have resulted in “all net employment growth from 2005 to 2015.”171 notably, “16 percent to 34 percent”172 of workers earn their living through these alternative work arrangements. platform economy work may be less risky than entrepreneurship and persons less risk adverse may be drawn to it. on the other hand, entrepreneurship is a wealth generator and “is an important option for securing economic independence.”173 law students and lawyers must understand these new economy law and policy issues. this is especially true for minorities such as african americans in the us.174 to illustrate, in the u.s., a report by the center for global policy solutions found that "expanding entrepreneurship among people of color is an essential strategy for moving the country toward full employment for all."175 unfortunately, due to historical and present racial discrimination, "america is currently 169 id. 170 id. 171 id. 172 id. 173 id. 174 see algernon austin, the color of entrepreneurship: why the racial gap among firms costs the u.s. billions, global center for policy solutions (april 20, 2016) available at http://globalpolicysolutions.org/report/colorentrepreneurship-racial-gap-among-firms-costs-u-s-billions/ (last visited jan. 22, 2018). 175 id. http://globalpolicysolutions.org/report/color-entrepreneurship-racial-gap-among-firms-costs-u-s-billions/ http://globalpolicysolutions.org/report/color-entrepreneurship-racial-gap-among-firms-costs-u-s-billions/ reviewed article – clinic, the university and society 126 forgoing an estimated 1.1 million businesses owned by people of color."176 indeed, "[t]hese missing businesses could produce an estimated 9 million more jobs and boost" the american "national income by $300 million."177 the future of work initiative of the joint center for political and economic studies, a u.s. based think tank, aims to ensure that workers of color have new economy job skills.178 entrepreneurial perspectives and mindsets complement this vision. to be sure, the platform economy has significant law and policy “implications for economic independence and entrepreneurial capacity.”179 examples of these law and policy implications include how platform economy workers will retain benefits, traditionally associated with paid labor, in these alternative work arrangements, how assets will be accumulated for the future, the type of education and job training needed to prepare workers for this new economy and whether wage insurance is a viable policy approach to help the middle class.180 gary swart, former president and ceo of odesk, which merged with elance to become upwork, now the largest freelancing work website in the country and a general/venture partner at polaris, notes that there are 500 entrepreneurship programs at u.s. universities 176 id. 177 id. 178 joint center, about, joint center for political and economic studies (mar. 9, 2015), http://jointcenter.org/about/about (last visited mar. 4, 2018). 179 id. 180 id. reviewed article – clinic, the university and society 127 up from 250 just 10 years ago.181 “it’s a testament to what’s going on in the world. clearly entrepreneurship is not just about starting businesses, it’s a mindset which is attracted to opportunity, innovation and value creation. this is what, students/millennials, persons 18-30 years old, care about and making a difference in the world, making impact.”182 swart notes that two-thirds of employees want to quit their jobs because they aren’t happy with the work.183 they want to make more of a difference and are attracted to innovation and opportunity and value creation but these opportunities may not exist at large companies.184 innovative, forward thinking companies must consider how they will retain talent. author, thomas w. malone, noting the rapid speed of workforce change observed that his father had one job in his career, and that he’ll have 7 jobs, and his kids will have 7 jobs at one time.185 another prediction is that learners of today will have 10 jobs by the time they are 40 -that’s a new job every 2 years.186 part vi: conclusion: the future of blcs in global context blcs are growing slowly outside of the u.s. and this growth warrants further study, analysis and comparative inquiry. accordingly, this article, a first of its kind, explores 181 gary swart, keynote address: 2016 new venture competition finals, youtube (june 27, 2016), https://www.youtube.com/watch?v=pejl2qswbgk. 182 nfte, entrepreneurship: the best preparation for the innovation economy, available at https://nfte.com/whyentrepreneurship/ (last visited jan. 22, 2018). 183 gary swart, keynote address: 2016 new venture competition finals, youtube (june 27, 2016), https://www.youtube.com/watch?v=pejl2qswbgk. 184 id. 185 thomas w. malone, the future of work: how the new order of business will shape your organization, your management style, and your life, harv. bus. rev. (apr. 2, 2004). 186 see also gary swart, keynote address: 2016 new venture competition finals, youtube (june 27, 2016), https://www.youtube.com/watch?v=pejl2qswbgk. reviewed article – clinic, the university and society 128 blcs within the context of the global clinical movement. entrepreneurship holds a special place in legal education today because technology, automation and artificial intelligence are disrupting traditional economies and changing forms of work giving rise to new corporate legal forms such as benefit corporations -blending social purpose and profit -and new work patterns, evidenced by the platform economy. some of these economic disruptions stem from entrepreneurial innovation. in light of the foregoing, this article analyzes the emergence of blcs in eastern and western europe, canada, the u.s. and australia and posits a broad definition of practiceready, inclusive of social justice, honoring cultural consciousness and power alongside collaboration, teamwork and business risk analysis. recognizing that not all blcs are able to embrace this broad definition and that environmental needs will prevail, at minimum, blcs should envision entrepreneurship as a social benefit. the article concludes that blcs are important now because of the millennial generation, the rise of the new economy and of social enterprises. reviewed article – clinic, the university and society 129 appendix 1 george washington university law school small business & community economic development lawyering competencies and learning outcomes the overall teaching goal of sbced clinic is to provide law students with direct practical experience with various aspects of the lawyering process, particularly as it relates to small business law and community economic development. specific lawyering competencies to be discussed and evaluated throughout the semester include: (1) case theory and development; (2) fact-gathering and development; (3) client-centered interviewing and counseling; (4) problemsolving and judgment; (5) negotiation, persuasion, and advocacy; (6) professionalism; (7) collaboration; (8) cross-cultural competence; (9) social justice awareness and systemic critique; and (10) leadership, self-evaluation, reflection, and learning from experience. sbced clinic core lawyering competencies and learning outcomes 1. case theory and development a. understand how legal problems arise and are experienced by clients; b. understand how to research and identify relevant legal doctrine; and c. understand how to identify the historical context of ongoing development of law through critical lawyering and legal analysis. 2. fact-gathering and development a. understand how to discern legally relevant facts and identify gaps in knowledge; b. understand the relationship between fact and theory, and understand how to leverage frameworks such as negotiation, the practical dimensions of cases, and other modes of planning/analysis to balance competing options; and c. exercise judgment, problem solving, and critical thinking in the factual analysis process. 3. client-centered interviewing and counseling a. identify and apply legal doctrine and theory to specific facts of client issues; reviewed article – clinic, the university and society 130 b. develop awareness and familiarity with interviewing and counseling techniques; and c. understand the ethical requirements of client confidentiality and the importance of that requirement for the client. 4. problem-solving and judgment a. identify both legal and non-legal strategies for addressing legal problems; b. devise innovative methods and strategic plans that creatively use law to empower clients to accomplish their goals; and c. utilize problem-solving skills to identify strengths and weaknesses of various options. 5. negotiation, persuasion, and advocacy a. understand appropriate uses of precedent documents and learn how to draft relevant legal documents for the client; b. develop an ability to convey legal conclusions and recommendations through purposeful writing; c. understand how to anticipate potential problems, conduct legal research and communicate findings to clients, colleagues, and supervising attorneys; and d. understand how to effectively deliver oral presentations and oral recommendations to clients, colleagues and supervisors. 6. professionalism a. understand the ethical obligations and responsibilities of the lawyer; b. understand the importance of professionalism in the following instances: i. class attendance and participation; ii. case management and file organization; iii. time management; iv. interactions with clinic colleagues and supervisors; v. communication with potential and existing clients; c. communication with stakeholders in the legal system, (e.g., attorneys, government agencies, etc.); and d. understand how to balance professional responsibilities with self-development, and personal health and well-being. reviewed article – clinic, the university and society 131 7. collaboration a. develop collaborative and interpersonal working skills; b. develop interdisciplinary working skills with other lawyers, accountants, business advisors, and financial institutions; c. develop perspectives on and identify methods to contribute positively toward existing legal institutions through strategic professional relationships; and d. engage in strategic and contextual thinking to determine options available to clients. 8. cross-cultural competence a. exercise empathy in contextualization of client issues, and develop cross-cultural competence in representation of clients; b. learn how to transfer skills and insights to new contexts; and c. understand the importance of context and culture in identifying goals and options. 9. social justice awareness and systemic critique a. understand the role of the lawyer as a legal professional and social justice advocate; b. understand the role of the lawyer in advancing social justice and poverty alleviation; and c. understand the role of legal advocacy to influence political and social justice. 10. leadership, self-evaluation, reflection, and learning from experience a. exercise self-awareness to zealously represent clients with compassion and empathy; b. develop reflective lawyering skills, including identifying the lessons and meanings of lawyering experiences; and c. develop best methods to create learning habits and understand the value of one’s learning process. d. understand the role of lawyers as leaders. reviewed article – clinic, the university and society 132 washburn small business and nonprofit transactional clinic: lawyering competencies and learning outcomes 1. attorney-client relationship a. fosters confidence, builds trust and maintains active communication with clients b. facilitates active participation by clients in their projects c. consistently gives clients meaningful explanations of the law in terms they can understand d. uses client goals as a guide for all client work e. practices compassion and empathy 2. project development and planning a. conducts comprehensible and reliable research to identify all possible options and to discard inappropriate options b. demonstrates effective legal analysis c. effectively works through legal, social, and economic issues with the client in order to clarify existing goals and to set future goals d. clearly articulates plans and strategies in writing so that others could follow the plan 3. practice management a. manages time effectively and meets deadlines b. consistently follows clinic office procedures c. maintains files so that others may reconstruct what has occurred, track research, and determine what has been advised d. allocates time, effort and other resources to consistently meets obligations to clients and the clinic e. prepares for supervision meetings and timely submits supervision agendas f. initiates contact with clinic supervisor and seeks additional supervision when needed 4. oral and written advocacy a. expresses thoughts with precision, clarity, economy, and organization reviewed article – clinic, the university and society 133 b. communicates, verbally and in writing, with clients in a style and format that is appropriate for each client c. timely prepares and thoroughly proofreads work before submitting it d. responds to clinic supervisor’s written and verbal comments e. writes professional email communications to clinic supervisor and others 5. collaboration and professionalism a. engages in true collaboration with clinic partner, not simply division of tasks b. meets with clinic partner at least twice a week to discuss client matters c. addresses collaboration-related concerns appropriately d. thoroughly prepares for meetings with clients, clinic partner, and supervisor e. demonstrates respectful interaction with clinic staff f. secures approval from clinic supervisor before acting g. identifies and address ethical, ideological, or personal considerations bearing on a project or the attorney-client relationship h. demonstrates value and respect for all people and integrates cross-cultural consciousness in clinic work 6. self-evaluation a. effectively critiques own performance, including strengths and areas in need of improvement b. accepts constructive feedback and applies it appropriately c. examines own insights, biases, and reactions concerning issues that arise in the course of client representation and project work d. regularly assesses self-care, such as adequate sleep, proper nutrition, exercise, mental health needs, and use of alcohol and recreational drugs. reviewed article – clinic, the university and society 134 appendix 2 checklist for starting or re-imagining a blc  what is the need in your community for business legal services?  have you done a needs assessment or a listening project to determine the need?  what are the results of that process?  do you have support from the local or national bar or other legal groups?  is a blc consistent with your national, regional, or local government’s economic development agenda?  are there other actors or stakeholders supporting a blc in your community?  what are sources of funding a blc?  who will be the clients/beneficiaries of a blc?  who will be the community partners of a blc?  how will you measure the effectiveness of the blc for clients?  how will you measure the effectiveness of a blc for students?  how will you measure the effectiveness of a blc for stakeholders?  will your blc focus on particular sectors, e.g., technology, immigrant or women-owned businesses or social enterprises?  what types of direct legal representation does your blc provide? o examples include business formation, business regulation, contracts, intellectual property, and employment. introduction part ii: the global emergence of business law clinics part iii: blcs – the global experience a. redefining “practice-ready”: social justice c. millennials d. collaboration and beyond part v: the significance of blcs now part vi: conclusion: the future of blcs in global context practice report 83 classroom to cyberspace: preserving street law’s interactive and student-centered focus during distance learning amy l wallace1 i. introduction street law is a legal education methodology designed to increase civic engagement, further advocacy and analytical skills, and develop practical legal knowledge in nonlawyers. using interactive and student-centered teaching strategies, these programs have been proven to be an effective method to teach critical thinking skills in high school students.2 when street law was founded at georgetown university law center in 1972, the law students wanted the lessons to be relevant and relatable for their high school students, and, in a pioneering effort they also wanted the lessons to be responsive, engaging, and fun.3 georgetown’s emeritus street law professor richard roe explains: 1 amy l. wallace is an adjunct professor of law at new york law school. wallace founded and teaches the street law experiential course at nyls. she is a graduate of the university of toronto (b.a. in political science), georgetown university law center (j.d.), and lehman college (m. ed. – new york city teaching fellows program). she consults for street law, inc., a non-profit focused on law-related education based outside of washington, d.c. at street law, inc. she helped design the chslsj summer law program and continues to serve as the legal director of that program. she also supports all new law-school-based street law programs in the united states. 2 sean arthurs, street law: creating tomorrow’s citizens today, 19 (4) lewis & clark l. rev. 925, 961 (2015). 3 lee arbetman, street law, inc.: context, history and future, 2(1) int’l j. of pub. legal educ. 3 (2018). practice report 84 the hallmark street law methodology of highly participatory, interactive, and engaging activity-based instruction, where the learning is accomplished largely through the cognitive, expressive, and reflective work of the learners themselves in substantively rich, thoughtfully structured lessons, draws from both the hands-on model of clinical legal education as well as the best practices for effective teaching and learning generally.4 the three basic components of a successful street law program are practical content, interactive skills-based teaching strategies, and community involvement. the subject matter covered in street law programs around the world differs dramatically. that the topics are important and relevant to the students is key. from the start street law lessons have been student-centered. a common catchphrase for street law instructors is “talk less, teach more” meaning the high school students should be the ones talking, debating, advocating, arguing, negotiating, and crafting solutions. when schools around the world switched to remote learning, street law programs struggled to re-imagine their interactive curriculum in a virtual setting. decades of practical, in-person street law pedagogy was instantly upended. professors and law student leaders wanted to continue to deliver legal instruction to non-lawyers but street law practitioners knew that it was not just what was being taught but how. this paper and subsequent research is designed to investigate whether it is possible to preserve the engaging street law methodology in a remote learning environment. 4 richard roe, law school-high school, in the education pipeline to the professions, programs that work to increase diversity 136 (sarah e. redfield ed., 2012). practice report 85 this paper includes: a background on the new york law school (nyls) street law program and the relationship with its partner high school, the charter high school for law and social justice (chslsj); a description of the nyls street law experience during emergency remote teaching in spring and summer 2020; a discussion of best practices developed through remote teaching; analysis of the implementation of those best practices in fall 2020; and conclusions and plans for further study. ii. background the nyls street law program was established in the fall 2017. the program is modelled after the original georgetown university law center clinic. the course is faculty taught and offered for credit in both the fall and spring semesters. between eight and ten law students participate in street law at nyls each semester. the law students attend seminars twice per week for three weeks before they start teaching. once they start at their teaching site, the law students attend seminars each tuesday where they review the substantive legal topic being addressed that week. the law students then work in pairs to prepare a lesson on wednesday. we meet each thursday to review the lesson and prepare the law students to teach on friday. the law students team-teach four or five classes at chslsj located in the bronx, new york. the high school was founded by an education law professor at nyls and the practice report 86 schools continue to have a strong partnership.5 the law students typically teach criminal law in the fall semester, and criminal procedure in the spring. each semester concludes with a final project – a mock trial in the fall and oral arguments for a moot court in the spring, both held at nyls. in addition to the credit-bearing course, nyls law students are hired as instructors for the chslsj summer law program each year. the summer law program is usually a three-week, twelve-day intensive program for all incoming ninth grade students at chslsj. the instructors teach a range of subjects including an introduction to law, criminal law, contracts, and constitutional law. the second week of the program concludes with a mock senate hearing and the third week focuses entirely on mock trial. both the summer law program and the street law course had run successfully for years when covid-19 completely disrupted life in new york city and around the world. iii. remote teaching spring 2020 in march 2020, the number of covid-19 infections exploded in new york city. on march 1, 2020, new york city only had one documented case of covid-19 and on 5 amy wallace, a law-themed charter high school born at new york law school remains indelibly linked, 4(1) int’l j. of pub. legal educ. (2020). practice report 87 march 20, 2020, there were almost 3000 documented cases.6 new york law school closed its campus on march 4, 2020 due to possible exposure to the virus by a law student. clinical and experiential faculty struggled to safely reconstruct practical legal programs that involved direct contact with clients. street law students were understandably concerned by the exposure to the virus in the crowded hallways and classrooms at chslsj. in addition, teaching in the bronx involves a long commute on public transit for most of the law students. they left for spring break anxious but expecting to return to in-person teaching at the end of the holiday. on sunday march 15, 2020 the new york city board of education moved all city schools to remote learning.7 the nyls law students were scheduled to teach on that friday march 20, 2020. as administrators at the high school scrambled to prepare remote lessons and materials to cover all courses, we tried to recreate our street law program in a virtual setting. the law students and i agreed that regardless of the circumstances, we could not stop teaching because the program is so important for the skill building and civic engagement of our high school students. at the outset the duration of the quarantine was unclear. we ignorantly thought that if the city shut down completely for two weeks that we might be able to return to 6new york covid map and case count, new york times (oct. 1, 2020), https://www.nytimes.com/interactive/2020/us/new-york-coronavirus-cases.html. 7 eliza shapiro, new york city public schools to close to slow spread of coronavirus, new york times (mar. 15, 2020), https://www.nytimes.com/2020/03/15/nyregion/nyc-schools-closed.html. https://www.nytimes.com/interactive/2020/us/new-york-coronavirus-cases.html https://www.nytimes.com/2020/03/15/nyregion/nyc-schools-closed.html practice report 88 normal. it quickly became clear that we would all be working and learning remotely for an extended period. because the street law program is founded on interactive, student-centered, skill building lessons, we were initially adamant that our virtual lessons be synchronous. we believed that the high school students needed to be able to work in groups and interact with their law students and each other. after discussions with chslsj, it became clear that due to inequities in access to technology and internet service, that synchronous lessons were impossible. we had to readjust our thinking to what was possible. it was decided that street law in some form would be beneficial to the high school students and law students. we had just started teaching the final moot court unit. the law students had to teach the substantive law of the right against unlawful searches and seizures, how to write case comparisons, and how to formulate arguments for a moot court, all without any live instruction. prior to the shutdown, the law students were team-teaching four separate classes at chslsj. although the law students all teach the same topic each week, teams create their own lesson plans and use different teaching methods to facilitate each class. in quarantine, the school asked us to produce one asynchronous lesson per week, which was assigned to all four street law classes. because we wanted the high school students to continue to see and hear their instructors, we decided to record short videos to accompany worksheets which were uploaded to google classroom. the law students did an incredible job putting together short informative videos which included the content the high school students practice report 89 needed to complete the virtual assignments, and also conveyed warmth and support that the students needed at such a confusing and stressful time.8 training the law students presented new challenges as well. typically, we discuss each topic at the beginning of the week and then the law students prepare their own lessons. suddenly, ten law students had to produce one asynchronous lesson. i decided to leave the law students in their original pairings. each pair prepared a proposal detailing how they would teach the subject that week. they each circulated their proposal and were also required to comment on the other proposals for our weekly seminar. in class we discussed the strengths and weaknesses of each proposal and as a group chose one pair’s plan to develop into the official lesson for the week. that pair then completed the lesson and recorded the video. the teamwork displayed was remarkable. without my direction, the law students seamlessly chose a different pair’s proposal each week so that everyone felt included in the asynchronous process. initially, i worried that the law students would be frustrated preparing a lesson proposal that was ultimately not chosen. i emphasized that street law is intended to benefit both the high school students and the law students and that researching and preparing lessons continued to be valuable practice for them regardless of whether the group ultimately opted for their proposal. using this model, the law students continued to learn substantive legal topics and practiced 8 stories of teaching, learning, and advocacy in the digital environment, new york law school news (apr. 6, 2020), https://news.nyls.edu/stories-of-teaching-learning-and-advocacy-in-the-digitalenvironment/. https://news.nyls.edu/stories-of-teaching-learning-and-advocacy-in-the-digital-environment/ https://news.nyls.edu/stories-of-teaching-learning-and-advocacy-in-the-digital-environment/ practice report 90 deconstructing the material for non-lawyers. our asynchronous lessons were not an equal substitute for the engaging in-person lessons the law students had been facilitating pre-covid, but the activities continued to foster the critical thinking and advocacy skills that the high-schoolers had been working on all semester. it was difficult to assess the efficacy of our remote lessons. we delivered the lessons each week and the school uploaded them for the students, but, consistent with our pre-covid arrangement, the cooperating classroom teacher graded the students’ work. she reassured us that the students were completing their assignments, but it was not until the high school students submitted their final moot court arguments that we confirmed that our lessons had been successful. amazingly the students produced thoughtful, well-constructed arguments. the law students had managed to teach the entire unit with videos and virtual assignments. i am extremely proud of the hard work and resilience of both the law students9 and the high school students. summer 2020 when we started planning for the 2020 summer law program, the school decided that they wanted to offer the program synchronously. typically, the program runs from nine to twelve each morning, four days a week, for three weeks. three straight hours on zoom for thirteen and fourteen-year olds was an untenable idea. i suggested we divide the time into manageable chunks for the ninth graders. the students would 9 huge thank you to my dedicated and unflappable spring 2020 nyls law students: hayden boudreaux, edward colligan, andrew frenkel, lara giray, victor hernandez, logan matura, michael moore, reshma ramrup, zaine shetayh, and lauren stolz. practice report 91 start the day with a thirty-minute zoom. they would then have a thirty-minute break where they would be responsible for an independent assignment uploaded to their google classroom. they would return for a final thirty-minute zoom. all of the lessons and materials that had been used during the four previous summer programs had to be rewritten for remote learning. i reviewed each of the lessons and reconceptualized them for a virtual learning environment. to address the global turmoil impacting our high school students, i wrote two new lessons to be included in the summer curriculum. the first lesson revamps the classic “no vehicles in the park” lesson10. the lesson traditionally asks students to examine scenarios to determine whether they violate a town’s vague vehicular traffic law. the purpose of the lesson is to highlight and contrast the concepts of “letter of the law” and “legislative intent.” the revised lesson includes photos of covid-19 social distancing laws mandating “no vehicles at the beach.” the second new lesson addresses first amendment protections for freedom of speech and the nationwide black lives matter protests against police brutality. we hoped the new lessons would help to engage the students in a virtual environment where external factors often make it challenging for students to focus. 10 this classic united states law school lesson asks students to review a number of scenarios to determine whether they have violated a town’s “no vehicles in the park” law. the scenarios can include “vehicles” like: a stroller, a wheelchair, an ambulance, a motorized bicycle, or a stationary tank monument. the purpose of the lesson is to introduce the concept of legislative intent and the importance of drafting precise legislation. practice report 92 the two nyls law student instructors hired to teach the summer law program accepted positions in february when the extent and duration of the lockdown were unimaginable. when told they would be teaching remotely, they were incredibly adaptable and easily made the transition. the three-day instructor training was conducted entirely online and included the usual review of the legal topics and lessons. the training also included hours of zoom practice. despite having spent half a semester attending classes on zoom, the instructors quickly learned that teaching on zoom was much more difficult. fortunately, we were able to secure additional law student volunteers to help support the main instructors. summer law program classes began in mid-july. during the first couple of days, the high school students were very reluctant to participate. attendance in both sections was low.11 the charter school requires the students to have cameras on, in part to confirm each student’s identity. the cameras on requirement did affect the strength of some students’ zoom connections at times. one of the first lessons that really engaged the students was the covid activity. we were unsure whether the students would be fatigued with thinking about the pandemic and discussing how the shutdown was affecting everyone’s lives. we were happy to discover they wanted to explore these issues. because the social distancing legislative intent behind the “no vehicles at the beach” law was omnipresent for the students, they did an exceptional job differentiating that intent from the plain language of the regulation. 11 attendance is a perpetual problem for the summer law program, so it is unclear whether the move to distance learning affected attendance in this case. practice report 93 because attendance in each of the two sections was low, about four days into the program, i suggested we combine the classes. i thought that more students together would mean more opinions and viewpoints to consider. my suggestion had the exact opposite effect and at the request of the instructors, we split them back into their original classes the next day. the high school students were more engaged and participatory in smaller, more intimate groups. during the break between zooms each day, the law students suggested but did not require that the high school students remain logged into the zoom. they were told to turn off their cameras and mute themselves while they completed the independent assignment and took a break. at the time, the intention was to ensure the students returned for the second half of class, but the downtime in the middle of the day instead became a moment of community building. students would reach out to the law students for individual assistance with assignments and also just to talk about college, law school, and careers. before the start of the summer program, we had managed our expectations about the development of community at a remote summer law program. collegiality is typically a huge part of the summer program since the high school students come to chslsj from many different middle schools around new york city. it is the first opportunity they have to interact with each other and the first time they are introduced to the law curriculum and the law students. that community building happened this summer is miraculous and the result of phenomenal nyls practice report 94 law student instructors and volunteer assistants12. we would have preferred stronger attendance, and class participation constantly required patience and perseverance from the law students, but nonetheless, the summer was a success. the high school students had engaging discussions and thoughtfully addressed current events. the charter school even decided to implement our thirty-minutes-on, thirty-minutes -off, thirty-minutes-on model for all of their subjects for the fall semester. iv. best practices the camaraderie of the legal profession was apparent during the switch to remote teaching. faculty throughout our law school and around the country were sharing ideas and offering assistance. new york law school provided countless professional development opportunities including access to a seven-session, ten-hour course on remote legal instruction.13 between collaboration, professional instruction, and our experiences teaching both asynchronous and synchronous street law classes, i have assembled our best practices. they can be divided into two broad categories: class structure; and class content. class structure 12 thank you to the amazing nyls summer law program law students: natasha “delali” madison (instructor), filomena stabile (instructor), taylor barje (volunteer assistant), caitlyn kelly (volunteer assistant), and mariella rutigliano (volunteer assistant). 13 preparing for the future of legal instruction – online teaching tips & techniques, the center for computer-assisted legal instruction, (june 9-30, 2020), www.cali.org. http://www.cali.org/ practice report 95 the decision about whether to teach synchronously or asynchronously will likely be made entirely by or at least in collaboration with the teaching site. initially we could not imagine a productive, student-centered, asynchronous street law program. our experience in the spring semester taught us that even using videos and worksheets, worthwhile skill-building street law work can happen asynchronously. remote learning will be, in most circumstances, a temporary measure. although synchronous classes do provide greater opportunity for interactivity both between the students themselves and the students and the instructors, asynchronous instruction is better than stopping street law classes completely. we also learned to consider adding asynchronous components to a synchronous class. as will be discussed later, interactive activities on zoom are very time-consuming therefore including an asynchronous pre-recorded video, which covers any brief lecture portion of the lesson, frees up the synchronous time to devote entirely to interactive elements. another advantage is students can watch the video at a time when they are most able to learn. when we taught synchronously over the summer, students would unmute themselves to participate and there was often a remarkable amount of background noise in their home. enabling those students to watch the video at a quiet time in their home, or when there aren’t competing demands on their internet and technology might be beneficial for many communities. students can also watch a video multiple times if they are struggling with a concept. instructors are typically meeting with their classes less frequently with the new remote schedules. asynchronous elements such as videos or even discussion board type activities can practice report 96 bridge longer periods between meetings. posting interesting articles or political cartoons on a platform like google classroom and asking students to comment is a way to keep them involved and thinking about street law. it also enables them to interact more with their peers, which is something many students are missing in this remote environment. the length of the class is also something that will likely be determined by the school. the nyls law students are teaching in 110-minute blocks this fall. the experts at the workshops i attended stated that forty-five minutes is the longest we should expect our students to be able to focus on a zoom or synchronous class. in addition, lessons where students are active participants rather than passive listeners contribute to greater student attentiveness, engagement, and information retention. the teaching site may also dictate class size. generally, an ideal class size for an inperson street law class is eighteen to twenty-five students. after teaching our synchronous classes this summer, we determined that closer to fifteen may be ideal on zoom. whether it was a general lack of engagement or performance anxiety, which can be magnified on zoom because a speaker can see everyone staring at them, the students were more reluctant to contribute in the remote classroom. this problem was amplified during the summer program when i combined the classes. the students contributed in their breakout rooms but were hesitant to share out in the main group. together with class size is the question of the ideal number of instructors. in a regular semester the nyls law students teach in pairs. in fact, having more than two facilitators can sometimes be distracting in an in-person classroom. this was not practice report 97 true over the summer. we had at least three facilitators in each class and in the fall we will have teams of four or five for each class. having a facilitator for each breakout room is crucial for remote learning. in a classroom, the instructor can look around the room and see a group that is confused or off-task. in a virtual classroom, that isn’t possible so having facilitators in each breakout room to guide and answer questions is very important. upon entering breakout rooms at the start of the summer law program, we often found the high school students sitting in silence with everyone muted. sometimes they were confused about the breakout assignment but were unsure how to return to the main zoom to ask for assistance. once facilitators were present in each room, the students were very productive and engaged. there is a great deal of technology available to assist with virtual learning. the most important lesson we learned was to keep the technology as simple as possible. many of the high school students were joining the class zoom on their phone or did not have access to reliable internet. most street law programs are directed at underserved communities where these technological inequities can be the most severe. the students struggle to run multiple programs at the same time. a platform that enables the instructors to teach synchronously (if possible) and a web-based learning platform like google classroom are the basic requirements. for the summer program we used zoom and google classroom. the charter school had been using google classroom throughout the spring semester, so the students were familiar with the technology. whatever platforms and technology are chosen should be used consistently. students should not be trying to learn about a variety of new programs in addition to learning practice report 98 the legal topics. the charter school has several class sets of the street law textbook so they are planning to arrange for parent pick up of the textbooks to ease the technological burden. we will then design lessons that rely on the textbook as much as possible. the new york city department of education distributed hundreds of thousands of ipads14 and many internet service providers in the united states offered free internet service for students. in addition, chslsj provided mobile hot spots and ipads to students. the unequal access to technology is a huge issue for distance learning. we are fortunate that this issue was taken seriously by the new york city department of education and chslsj. class content assessing student comprehension can be more challenging in a remote teaching environment. during in-person teaching, instructors can scan the room and notice students who aren’t completing the assignment or participating in their group discussion. in addition, when students are together, they can ask their neighbor if they missed an instruction or zoned out temporarily. none of this can happen in a virtual space. we concluded that checking for understanding needed to be a central component of all virtual lessons. asking “does anyone have any questions” was never an effective tool to measure the comprehension of teenagers and it works even less well remotely. it is more effort and can be intimidating for students to unmute 14 luis, diaz, nyc working with apple to supply 300,000 ipads to our students for distance learning, new yorkeled magazine (mar. 16, 2020), https://www.newyorkled.com/nyc-working-withapple-to-supply-300000-ipads-to-our-students-for-distance-learning/. practice report 99 themselves and ask a question in front of the whole class compared to privately asking a circulating instructor in an in-person classroom. we have emphasized asking the high school students to restate the instructions in their own words each time we give them a task. it may seem cumbersome, but it frequently highlights that many of the students are not clear on their assignment. the law students have also added more scaffolding questions to their lessons. for example, asking students what they think is the most interesting part of an article they are reading aloud, or the most challenging part of a scenario they are analyzing in groups. the law students need to ask questions where the feedback will tell them whether the high school students are prepared for the next assignment. we have had to manage our expectations in terms of what we will accomplish in our classes. one of the most important lessons we learned during the summer program was how much less we could accomplish teaching virtually. everything we planned to do took almost twice as long as it would take in the classroom. during the first few days of the summer law program we were so far behind schedule that we were taking the zoom break when the students were supposed to be returning from break for the second zoom. i started cutting things out of the lessons because we did not want the high school students to be on the zooms for that long. especially when using interactive techniques, all of the procedural elements take time that we never had to spend in the classroom. sharing screens, putting students into breakout rooms, repeating instructions, and waiting for students to access the documents on their google classroom are all very time consuming. add to those delays that student practice report 100 participation requires more prompts from the instructors than would typically be required to foster discussion in an in-person class. street law programs are about skill-building not coverage and i remind my students that we are not teaching a bar exam prep course. it is more important that the high school students have a thoughtful, analytical discussion of two scenarios than rushing them through a surface discussion of five. we decided to be incredibly thoughtful about the topics we chose to cover because we accepted we would teach less than previous semesters. carefully crafted lesson objectives are critical in this remote environment. the law students need to think about what they want their students to be able to do by the end of class, how the students are going to learn and practice those things, and how we are going to measure those objectives. interactivity is a hallmark of street law pedagogy. we know it is crucial that whenever possible we incorporate engaging elements into the lessons. we introduced photographs and images into our lessons for the summer program. the visuals definitely captivated the students and increased participation. being on zoom can be tiresome, even when discussing relevant topics and the use of photographs added an additional layer of interest. the students responded very well to the visuals included in the “no vehicles at the beach” lesson. practice report 101 polls can also be a useful addition to a lesson. there are many poll programs available that have a large variety of options. we use the basic poll feature contained within zoom, so our high school students do not have to access another platform. student participation in the polls used in our classes was almost one hundred percent. students who refused to contribute to discussions would participate in a poll. clicking on a poll response is a very small demand of a student. however, using a poll can have a disproportionately positive effect on class participation. the students unwittingly become invested in the topic. they vote in the poll and therefore commit to an answer. we noticed they are more willing to contribute verbally after they participate in a poll. our first amendment and protest lesson starts with a series of images and a simultaneous poll, which asks students whether the image depicts “speech”. the students were very engaged during this lesson and carefully analyzed figure 1 'park closed to vehicles' sign figure 2 'beach closed to all vehicles' sign practice report 102 what types of speech should be protected by the constitution. we chose images of people of color exercising their rights to free speech to reflect the community where the law students teach. we want the high school students to easily visualize themselves speaking out against injustice and engaging in their community. figure 3 young people holding protest signs which read #metoo figure 4 image of a protester with a t-shirt that reads 'i can't breathe' practice report 103 it is very helpful to be able to write a poll in advance, using the template provided by zoom, and upload it into the meeting set-up. it also alleviates some of the expected stress and nervousness at the start of the class. the final best practice relates to the use of media in a virtual classroom. richard mayer is a renowned psychology professor and an expert on how people learn. he has focused his research on how media can be used most effectively in teaching. he suggests that images can be very helpful when used together with narration15. however, he contends that when unnecessary on-screen text is added to images, it is difficult for the brain to listen to the words being spoken, look at the image being displayed, and read the text on the screen. using this rule, we include little or no words on any slides that we use except the words actually contained within the image. mayer also argues that people learn better from narration and pictures than narration alone but only if the media is actually contributing to or clarifying what you want the students to be learning16. in the remote environment, many instructors are seeking out video clips and other media to make virtual lessons more interesting to the students. our conclusion is to choose the media thoughtfully and think about whether it is actually contributing to what we want the students to learn. 15 richard e. mayer, multimedia learning, 3rd ed. 186 (2021). 16 richard e. mayer, multimedia learning, 3rd ed. 117 (2021). practice report 104 v. implementation in august 2020, the fall semester of street law began. nine students went through three weeks of training before teaching their virtual classes for the first time in midseptember. we have used all our best practices in the preparation for this fully remote semester of street law. the law students teach 110-minute blocks broken into a fortyminute zoom, thirty-minute independent assignment, and a forty-minute zoom. the law students design lessons that cover the same amount of material as they would previously teach in the average one hour in-person class. the lessons are highly interactive and student-centered. although we typically teach criminal law in the fall semester, the school noticed the level of engagement with the first amendment and freedom of speech lesson during the summer law program and requested that we teach constitutional law instead. we have focused on contemporary issues including a lesson on school board censorship of library books to coincide with banned books week.17 the students really respond to lessons that focus on issues that directly impact them. the law students are divided into one team of four instructors and one team of five. in a typical semester, the classroom teacher meets with each of her classes three times per week. the new virtual schedule means she meets with each class only once per week and only two of her classes meet on fridays when the law students are 17 banned books week in the united states is a week devoted to the freedom to read. it began as a result of an increasing number of challenges to books in the 1980s. today the week is a celebration of reading generally and particularly those books that faced the greatest number of challenges that year. practice report 105 scheduled to teach. the larger teams are working well because there is always a law student present in each breakout room to encourage discussion and keep students on task. it also allows the law students to manage the zoom functions together. each team prepares an extremely thorough lesson plan detailing which team member is responsible for which task at every stage of the lesson. this rigorous planning and organization, although time consuming, is critical to the success and flow of a remote lesson. one of the unforeseen effects of teams in place of pairs is the law students have been reluctant to share their experiences in seminar each week. when divided into their team breakout rooms, they are ready to unpack the successes and struggles of each class but in the main group they are quiet. this is not an issue i have encountered before. typically, the pairs readily share their weekly experiences with the whole group. i will be working on strategies to encourage more enthusiastic debriefing with the whole class. the law students have taught for six weeks and the lessons have been very successful. the high school students are engaged in the lessons and they have wonderful insights to contribute to class discussions. the classroom teacher is present on each zoom, which is very helpful. she attends to issues like insisting on cameras being on and students being attentive. while we have had students zooming from their beds or otherwise laying down and not in an appropriate learning environment, generally the students have been focused and participatory. in the second week, a high school student asked to speak to the law students during the break and she asked very practice report 106 thoughtful questions about college, law school, and how to avoid a legal career where she would be sitting at her desk all day. community is already beginning to form18. vi. conclusions and further study interactive, student-centered street law lessons are possible in a virtual setting. the planning and problem-solving involved in creating engaging remote lessons is far greater than for an in-person classroom. there are more considerations and circumstances that must be factored into lesson preparation. virtual lessons will never equal in-person interaction and community building, but they can be an effective temporary solution until we can all safely return to classrooms. few law schools in the united states continued to teach street law when schools closed in spring 2020. however, many law schools are planning to run virtual street law programs for fall 2020 and spring 2021. i intend to reach out to the professors and law students who attended the street law, inc. webinar on teaching remotely19 as the second part of this paper. part two will analyze the virtual programs implemented by these law schools including an examination of which best practices they incorporated and whether any of those suggestions contributed to the successful implementation of a remote street law program. 18 thank you to my wonderful nyls fall 2020 law students: thomas blau, benjamin brookhim, lauren cannan, noel flugel, amanda schribman, christie soule, christopher suris, tiffany williams, and madison woods. 19 amy wallace, tips and best practices for conducting a street law program online, street law, inc., aug. 28, 2020. from the field 141 frustrating times: notes from the field stephanie jones, senior lecturer, university of central lancashire, uk* abstract business law clinics’ involvement in advising small and medium sized enterprises (smes) reached an interesting crescendo during the pandemic as businesses were often left high and dry by business customers and suppliers who could or would not fulfil their contractual obligations. smes, often sole traders or limited companies with no business premises, found themselves unable to access government support and facing insolvency. many had no contracts in place, or they sought to rely on their terms and conditions of business only to find them lacking due to reasons grounded in law (there is no freestanding concept of force majeure under english law and if a contract is silent on it, english law will not imply it) or process (lack of incorporation of terms through their own fault). in this note i seek to examine the impact of the pandemic on the concept of force majeure and contractual remedies for smes in the uk and to contemplate the role of business law clinics in advising smes on the use of terms and conditions in business-to-business (b2b) contracts as part of successful operations in the post-covid world. drafting sets of terms and conditions for sme * sljones3@uclan.ac.uk. international journal of clinical legal education frustrating times 142 clients is a perfect vehicle for meeting the goals of a university business law clinic – community engagement with local smes providing them with fast, tailored advice with a bespoke tangible document to take away plus student experience of realworld learning in commercial law (experience which is not always readily available for students outside the big cities). frustrating times the doctrine of frustration of contract has always held a special place in my heart – it was a neatly contained topic on my degree program that did not need me to update my notes before final examinations because all the important cases were historic: set against back-drops of a cancelled coronation or war-time trading. fast-forward to the twenty-first century and one notable legal impact of the global pandemic is likely to be a raft of new cases on frustration of contract. until those cases are ruled in any great numbers however, those of us attempting to advise struggling small and medium sized enterprises (smes) based upon century old common law rules have found it challenging. england and wales are different to other (typically civil law) legal systems: in france for example, force majeure is a legally defined concept and as early as summer 2020, the courts declared that covid-19 was a force majeure event.1 this meant that, in france, performance of contracts could be suspended or 1 french law defines force majeure in article 1218 of the french civil code: “force majeure occurs in contractual matters when an event beyond the control of the debtor, which could not reasonably be expected at the time of the conclusion of the contract and the effects of which cannot be avoided using appropriate means, prevents the performance of the debtor’s obligation”. the french government declared covid-19 a force majeure event in respect of public procurement and from the field 143 terminated without any party being deemed in breach. there is no freestanding concept of force majeure under english law – it is just a contractual issue, adjudicated by the courts on a case-by-case basis with the appropriate remedy thereafter. in this note i therefore consider the position of smes in england and wales as they face life after the pandemic situations of uncertainty, of legal wrangling and of reluctant negotiated settlements caused by contractual breaches – and the role that lawyers, but more importantly for the purposes of this note and potentially for the smes themselves, law clinics can play in helping them face the future with a level of confidence that otherwise can elude them in challenging times. during the pandemic, many businesses became concerned that they were losing money due to events or orders being cancelled, often, but not always, as a result of the restrictions imposed by the health protection (coronavirus) regulations 2020.2 in england and wales, the terms of their commercial (“b2b”) contracts dictated their rights to cancel. if there happened to be a suitable cancellation clause or they could agree to cancel or suspend the contract, there should not have been a dispute. if, on the other hand, one party wanted to cancel and the other did not and money in some form has changed hands, then the situation became more complicated. smes announced solidarity measures for all companies, suggesting a possible extension of the qualification. a decision by the court of appeal of colmar on march 12, 2020 ruled that covid-19 as a force majeure event (no. 20/01098). this was confirmed when the paris court of appeal intervened in the interpretation of the framework agreement (an agreement entitling electricity suppliers to purchase electricity from electricité de france (“edf”) at a regulated price), it considered that the force majeure stems both from the covid-19 pandemic and the governmental measures taken to stop the spread of the virus. 2 si 2020/129. international journal of clinical legal education frustrating times 144 in england needing a remedy due to covid-19 needed to overcome a series of contractual hurdles: 1. is there a set of terms and conditions? 2. are those terms and conditions incorporated into an enforceable contract? 3. is there a force majeure clause included in that contract? 4. does that force majeure clause include reference to “disease” or “pandemic”? the reality of doing business as an sme in england and wales is that business owners tend to be wholly focussed on time and money on making a success of the business rather than asking for help to put appropriate, or indeed any, terms and conditions in place. of course, help may be available from solicitors, chambers of commerce, law clinics or even simply by “borrowing” a set of terms and conditions from the internet. many smes have no formal contracts in place – relying on an email, a text or a phone call here or there. those that have had the foresight to acquire or create a set of terms and conditions must then overcome hurdle number two. the second hurdle is that of incorporation into a valid contract. those with a legal background may recall the general rules of incorporation from contract law sessions and may even recall the specifics of lord denning’s “last shot doctrine” from butler machine tool co ltd v ex-cell-o corp (england) ltd.3 simply put, legal practitioners 3 [1977] ewca civ 9. from the field 145 tell clients not to rely on printing their terms and conditions solely on their invoice but to bring them to the attention of their customers earlier in the transaction – for example, by making explicit reference to them in their quotation or other document which is communicated before the contract is concluded. assuming then that there are terms which are incorporated into the contractual relationship between the parties, the third hurdle for smes is whether there is a force majeure clause and how it is constructed. the title of the clause may give a hint that this is not a concept originating in english law (it means ‘superior force’ in french) and, in fact, the term has no recognised meaning in english law at all. on that basis, if it is used in commercial contracts, it must be expressly defined: a clause stating that the "usual 'force majeure' clauses shall apply" has been held void for uncertainty.4 the makings of an effective clause therefore could include “in this agreement, force majeure shall mean any cause preventing either party from performing any or all of its obligations which arises from or is attributable to strikes, lock-outs or other industrial disputes, nuclear accident or acts of god, war or terrorist activity, riot, civil commotion, malicious damage (excluding malicious damage involving the employees of the affected party or its sub-contractors), outbreak of disease or pandemic, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors and, where they are beyond the reasonable 4 british electrical and associated industries (cardiff) ltd v patley pressings ltd [1953] 1 w.l.r. 280. international journal of clinical legal education frustrating times 146 control of the party so prevented, any other acts, events, omissions or accidents….” (nb. capitalisation denotes defined terms that would be used in the entirety of an agreement). the eagle-eyed amongst you will have noticed that the long list of meanings attributed to force majeure includes ‘outbreak of disease or pandemic’. the reality is however, that before march 2020, many force majeure clauses that were included in commercial contracts, even bespoke ones, did not include such a provision. even the ‘long list’ in the clause above may not be long enough – practitioners have now spent many hours looking at how to define ‘pandemic’ in a global market and in a similar vein, is the invasion of ukraine covered by ‘war’ or would it need to include ‘act of government, embargo, blockade, imposition of sanctions, breaking off of diplomatic relations or supply chain disruption’. the ‘safe’ list is seemingly endless. even once identified, there has to be a sufficient causal link between the force majeure event and the corresponding impediment to performance and it is likely that the party seeking to rely on the force majeure clause will have to demonstrate that ‘but for’ the force majeure event, they would have performed under the contract. as a result, for smes that had overcome the first three hurdles and the ‘proofs associated with it’, they still needed a clause where that event could bring the contract to an end without penalty: the fourth hurdle. an effective clause within an effective contract also needs to consider the consequences of any of these force from the field 147 majeure events (for example whether the contract will be delayed or will be terminated) and additionally set out what happens to payments made and services delivered prior to the force majeure event. these potential options for inclusion in a contract are expositions of remedies grounded in the principles of contract law but should be considered to form contractual terms that are capable of negotiation, tailoring and explicit inclusion and are more suitable for the parties, and certainly less of a blunt instrument, than simply discharging the contract. so many hurdles! therefore, we can see that the situation would be the same for businesses with a contract that did not contain an appropriate or adequate force majeure clause or for businesses where there was no contract at all. it is worth repeating that force majeure cannot be implied under english law. without such implicit inclusion or usable contractual terms, smes were scrambling around for alternative solutions. the fallout from the pandemic has meant that smes have been forced to consider the business relationships that were potentially at stake. for oneoff events, where there was effectively ‘no relationship’ they often chose to take a more rigid line. for example, the owner of an events venue could charge full fees for cancellations and hope that those fees were unquestioningly paid by an equally struggling business at the other end of the contract. where there was a longstanding, often important, business relationship (e.g. an event hosted annually at the same venue), then a more commercial, pragmatic approach may have been preferred, agreeing a course of action outside of the contract to try and share the international journal of clinical legal education frustrating times 148 exposure more fairly. if a negotiated settlement could not be reached, parties could look to rely upon the common law doctrine of frustration. that said, lawyers always warn that a misplaced assertion of frustration may render these smes in anticipatory breach of contract. the doctrine of frustration applies where performance of a contract has become legally or physically impossible through no fault of the parties. for frustration principles to apply, performance of the contract must be adjudged by a court to be impossible, illegal or radically different to what was contemplated at the outset of the contract rather than just difficult, more expensive or likely to be delayed, even if that delay is significant. the frustrating event must, in the words of bingham lj in the‘super servant two’ case,5 ‘bring the contract to an end forthwith, without more ado automatically.’ even a hint of foreseeability about the supervening event and its consequences would mean that the doctrine of frustration could not be relied upon. the burden of proof lies with the party asserting that the contract has been frustrated to establish there has been frustrating event and that its effect on the agreement is termination without penalty. the other party could then seek to prove that the doctrine should not apply, for example, on the basis that the frustration was self-induced or there was a break in the chain of causation. the law of frustration aims to guard against so-called ‘unjust enrichment’ where the loss falls unreasonably or too much on one party by comparison with the other. seeking to achieve a fair apportionment of incurred costs by relying on frustration, 5 lauritzen a/a v wijsmuller b.v. (the super servant two) [1990] 1 lloyd's rep 1. from the field 149 cannot simply be negotiated between the parties. yet seeking a remedy in court is, as we all know, not the easy option. even using the small claims court track in an attempt to pursue lost revenue and a fair apportionment of costs takes a considerable amount of time and organisation, not to mention an average of £1000. i have stated that establishing that performance was actually impossible is a high bar to overcome. if that bar can be overcome, where money was paid prior to the frustration of the contract, under the law reform (frustrated contracts) act 1943, the court will usually find that that sum may be recovered by the payer and where money was due to be paid at the time of the frustration, it would no longer be payable. neither party would be in line for any huge compensation pay out – just an allocation of costs and losses already incurred. setting aside the time and / or money to go to court however is simply not an option, nor is it likely to become an option within the 6-year limitation period, for most smes that are already cash-strapped as a result of the pandemic and a looming cost-of-living crisis. there has been talk that the english courts could begin to recognise the use of a force majeure certificate as in other countries around the world. the english courts certainly have not yet tested the effect of a force majeure certificate and given the fundamental principles the courts apply when considering a force majeure claim and the cautious (some may say slow) route to progress, the position may be that, whilst a force majeure certificate is useful evidence of the fact that a force majeure event has taken place, the fact of the certificate itself will not lead the court to hold that international journal of clinical legal education frustrating times 150 the party invoking the force majeure provision is entitled to relief. perhaps if the force majeure clause within the contract expressly refers to the issuance of force majeure certificates as an event which can be relied on, the circumstances could be assessed to be different, in the contemplation of the parties and the contractual remedy will be available. in fact however, the reality is that neither reliance on force majeure clauses or on the doctrine of frustration have proved effective remedies for businesses trying to recoup losses incurred through failed contracts during covid-19. it has been suggested6 that courts’ and legal practitioners’ reluctance to find, or even advise, that the pandemic may be an event of force majeure or a frustrating event was due to the wording of the uk government’s may 2020 guidance note7 which stated that responsible and fair behaviour is strongly encouraged in performing and enforcing contracts where there has been a material impact from covid-19. this includes being reasonable and proportionate in responding to performance issues and enforcing contracts (including dealing with any disputes), acting in a spirit of cooperation and aiming to achieve practical, just and equitable contractual outcomes having regard to the impact on the other 6 lexisnexis “frustration event analysis – a practical guide”. 7 guidance on responsible contractual behaviour in the performance and enforcement of contracts impacted by the covid-19 emergency <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/ 883737/_covid-19_and_responsible_contractual_behaviour__web_final___7_may_.pdf>. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/883737/_covid-19_and_responsible_contractual_behaviour__web_final___7_may_.pdf https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/883737/_covid-19_and_responsible_contractual_behaviour__web_final___7_may_.pdf from the field 151 party (or parties), the availability of financial resources, the protection of public health and the national interest. as dla piper stated in a recent article,8 “legal practitioners consistently poured cold water over attempts by commercial parties to rely on force majeure clauses (and the doctrine of frustration)” during the pandemic. what started with brexit and continued with the pandemic is now exacerbated by the global economic impact of the war in ukraine and the looming energy crisis: the agony for businesses with even more of their contracts becoming untenable for a variety of reasons is prolonged. dla piper state their belief that ‘now, as the hot water really does begin to turn off in europe, it is looking increasingly likely that commercial parties may finally be in a position to invoke force majeure.’ so, what has changed and is 2022 the time when new frustration cases become like buses: you wait so long and then they all come at once? the high court in european professional club rugby v rda television llp9 found that a tv company wishing to terminate a contract on the grounds of force majeure when it could not televise rugby games that were cancelled due to the pandemic was permitted to do so. the reason that court found that this termination was valid was due to the rather specific wording of the clause (as i have already indicated, the more specific the better seems to work): the non-defaulting party had 8 force majeure revisited – the gas crisis of 2022 (5/9/22) <https://www.dlapiper.com/en/france/insights/publications/2022/09/force-majeure-revisited-the-gascrisis-of-2022/>. 9 [2022] ewhc 50 (comm). https://www.dlapiper.com/en/france/insights/publications/2022/09/force-majeure-revisited-the-gas-crisis-of-2022/ https://www.dlapiper.com/en/france/insights/publications/2022/09/force-majeure-revisited-the-gas-crisis-of-2022/ international journal of clinical legal education frustrating times 152 the right in the contract to terminate the agreement if the force majeure event delayed the other party’s performance by more than 60 days (author’s emphasis). whether this is the dawn of a new era in frustration and force majeure is doubtful however as the decision in this case contrasts with another decided by the high court only days earlier. in football association premier league v ppl sports international,10 the court held that the postponement of matches and the fact that the matches were held without spectators were not fundamental changes to the format and accordingly the licensee was not entitled to terminate the contract. the clause here was broader and thus performance within the contract was still possible, just different. the court of appeal in bank of new york mellon (international) ltd v cine-uk ltd11 decided in similar terms – that covid-19 was not a defence against a claim for non-payment of rent. an additional word of warning though about including force majeure clauses in standard terms and conditions – they must still abide by the rule requiring a clause to be reasonable. where the effect of a force majeure clause, as drafted, is to entitle one party to render no contractual performance at all or a performance substantially different from that reasonably expected of them, the clause must be reasonable to avoid a challenge under section 3 of the unfair contract terms act 1977. 10 [2022] ewhc 38 (comm). 11 [2022] ewca civ 1021. from the field 153 arguably, these tough times have brought the potential impact of business / entrepreneurial law clinics to the fore, further cementing their significance for industry and commerce. whilst the provision of pro-bono legal advice has become an integral part of the uk’s legal infrastructure and higher education institutions participate effectively, the advice letter model is not a model that works for fledgling, cash-poor businesses who need assistance with a huge range of documentation from sets of terms and conditions (as already mentioned) to contracts of employment. in 2018, a report of the legal services board12 based on research over five years concluded: ‘we estimate the annual cost of small businesses’ legal problems to the uk economy to be roughly £40 bn. furthermore, 20% of businesses reported health impacts on personnel, which extrapolates to a minimum of 1.1m individuals, with possible knock-on effect for health services.’ over 50% of small businesses try to solve their legal problems completely alone. the legal and regulatory needs of small businesses, start-ups and charities are often overlooked because these organisations are presumed to have money in their budgets that can be used to pay for legal advice, but this becomes unlikely, particularly in an era of difficult trading conditions and rising legal fees.13 12 <https://research.legalservicesboard.org.uk/wp-content/media/final-small-business-report-feb2018.pdf>. 13 previously cited in ijcle, helen codd, lucy blackburn, david massey, deborah wood and stephanie jones ‘the best of times and the worst of times’: reflections on developing a prison-based business law and tax clinic in the midst of a global pandemic’ international journal of clinical legal education (2020) 27(4) 39-61. https://research.legalservicesboard.org.uk/wp-content/media/final-small-business-report-feb-2018.pdf https://research.legalservicesboard.org.uk/wp-content/media/final-small-business-report-feb-2018.pdf international journal of clinical legal education frustrating times 154 helping smes in this way is a method of promoting social justice – pro-bono work has always had this at its core. helping small businesses casts a less-traditional lens on social justice, but it is certainly a valid one. it is worth noting therefore that many such clinics can also promote social justice in another way – by providing unapologetic attempts to level the playing field for graduates and students whose a level results or social background may prohibit them from acquiring essential work experience in commercial law firms, who commonly recruit solely from russell group universities. clinics that provide internships and / or graduate employment allow graduates and students to gain confidence, essential skills and legal experience. for graduates and students who get involved, this real-world experience enables them to develop often elusive essential professional attitudes and attributes. over 88% of trainee solicitors in commercial law firms are recruited from russell group universities14 with most of those trainees coming from middle class backgrounds.15 some of the elite universities recruit under 3% of their students from low social classes16 and under 13% from bme backgrounds. over 64% of russell group students take part in a formal internship / work-experience programme that is relevant to their chosen career17 and most commercial law firms take over half of their trainee solicitor recruits from those formal internship / work-experience 14 <http://www.chambersstudent.co.uk/where-to-start/newsletter/law-firms-preferred-universities>. 15 <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/434791/a_qualitativ e_evaluation_of_non-educational_barriers_to_the_elite_professions.pdf>. 16 <http://www.hefce.ac.uk/analysis/yp/polar/>. 17 <https://universumglobal.com/>. http://www.chambersstudent.co.uk/where-to-start/newsletter/law-firms-preferred-universities https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/434791/a_qualitative_evaluation_of_non-educational_barriers_to_the_elite_professions.pdf https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/434791/a_qualitative_evaluation_of_non-educational_barriers_to_the_elite_professions.pdf http://www.hefce.ac.uk/analysis/yp/polar/ https://universumglobal.com/ from the field 155 programmes. a majority of law graduates from provincial post-1992 universities have traditionally gained employment in high street private client small firms of solicitors in which the pay is lower and opportunities for progression fewer than in commercial firms. for a variety of reasons, they have very limited access to commercial law experience – they often come from low social classes, bme backgrounds, have lower pre-university achievements and so on. furthermore, almost 70% of graduate employers see relevant work-experience as an essential part of a graduate job application.18 commercial law experience and the jobs that can flow from it are evading many students in provincial post 1992-universities. clinics are therefore often focussed on attempting to give these students and graduates access to opportunities that others take for granted. in the future, with correct resourcing, such clinics are excellently placed to provide placements that contribute to graduates’ qualifying work experience under the solicitors’ regulation authority’s new route to qualification (solicitors qualifying exam). once again potentially contributing to the levelling-up agenda for such students. our legal and commercial systems could certainly become more receptive to the use of, and reliance upon, force majeure clauses and legal practitioners can begin to work out a possible route through the minefield that at least creates a workable backdrop for all parties engaged in commercial activity. clinics are well placed to overhaul the terms and conditions of smes to include reasonable clauses that are 18 <https://www.ucas.com/connect/blogs/work-experience-important>. https://www.ucas.com/connect/blogs/work-experience-important international journal of clinical legal education frustrating times 156 bespoke to the sme’s business and as specific as possible on what could count as a force majeure event. these clauses may not be a water-tight solution for smes simultaneously dealing with global and national crises but it is certainly worth a try. many smes are rather cash-strapped and, in any event, would rarely seek bespoke contracts for every deal that they do. they may welcome the prospect of a welldrafted set of standard terms and conditions that could protect them rather than having nothing in their corner. clinics can certainly provide this without forcing these cost-conscious smes into expensive legal appointments – thus promoting the levelling up agenda at every turn and steering businesses away from frustrating times into encouraging ones. from the field 81 cleo: clinical legal education organisation qualifying work experience guidance for university law clinics lucy blackburn, university of central lancashire 1. introduction in order to help law clinics navigate the new regulations, a small working group from cleo have put together this draft guide to the qwe. in developing this guide, we recognise that the new routes to qualification are controversial and we are not endorsing or expressing approval for these routes to qualification. as an organisation, cleo is committed to developing clinical legal education as a rich and innovative method for teaching law. legal education, in particular for undergraduates, is about much more than qualifying as a solicitor and indeed many law graduates do not go onto qualify as legal professionals. however, we are aware that many of our members will be offering qualifying work experience, or may be asked by senior management to offer qualifying work experience and we therefore want to develop guidance for our members to assist with navigating the new regulations. this guidance is to assist university law clinics only, when encountering a student’s claim for qwe. many thanks to the members of cleo and beyond who have contributed to this guidance. in this guidance these terms have the following meaning: clinic lead: solicitor who confirms qwe competencies: those listed within the statement of solicitor competence. sqe: solicitors qualifying exam qwe: qualifying work experience from the field 82 2. what is qualifying work experience? under the sqe, individuals wishing to be admitted as a solicitor need to complete qwe. the sra define qwe as any experience of providing legal services that offers a candidate the opportunity to develop some or all of the competences needed to practise as a solicitor the definition of qwe should also be read in conjunction with the guidance issued by the sra:1 • qwe involves experience of providing legal services which enables an individual to develop some or all of the competencies outlined in the statement of solicitor competence, including professionalism and ethics needed to practice as a solicitor. • qwe may be obtained in england or wales or overseas. • in total, qwe must be at least two years working full time or the equivalent on a part time basis. there is no minimum or maximum prescribed length of each individual placement or stage. • qwe can be obtained in up to four separate organisations providing legal services, including non-sra regulated organisations, including university law clinics. • qwe is confirmed by a solicitor. • historic qwe can be claimed. 1 https://www.sra.org.uk/solicitors/guidance/colps-confirming-qualifying-work-experience/ https://www.sra.org.uk/solicitors/guidance/colps-confirming-qualifying-work-experience/ from the field 83 candidates register their two years qwe with the sra by the time they apply to be admitted as a solicitor. however, a candidate can register any completed qwe from now. for a candidate employed by a firm of solicitors following a traditional training programme, satisfying the definition of qwe will not cause issue. however, different issues arise for students wanting to claim qwe for time spent in university law clinics. this guidance provides these clinics an opportunity to consider whether they can confirm qwe. 3. legal services qwe can only be claimed when engaged in the provision of legal services and that qwe must be grounded in ‘legal work’. whilst the term ‘legal services’ is not defined within the qwe guidance, for the purpose of this guidance, ‘legal services’ will be interpreted as having the same definition as ‘legal activity’ under the legal services act 2007 s12(3)(b) & (d)2: (b) any other activity which consists of one or both of the following – (i) the provision of legal advice or assistance in connection with the application of the law or with any form of resolution of legal disputes; (ii) the provision of representation in connection with any matter concerning the application of the law or any form of resolution of legal disputes. (d) but ‘legal activity’ does not include any activity of a judicial or quasi-judicial nature (including acting as a mediator). the use of the words ‘advice’ ‘assistance’ and ‘representation’ have been interpreted to include most activities undertaken by university law clinics (including support 2 since the initial distribution of this guidance in october 2021, the sra now refer candidates to s12 legal services act to assist in deciding whether their role involves delivering legal services. https://www.sra.org.uk/become-solicitor/sqe/qualifying-work-experience-candidates/ https://www.sra.org.uk/become-solicitor/sqe/qualifying-work-experience-candidates/ from the field 84 through court projects). what has been excluded from this guidance are clinics that engage in ‘quasi-judicial’ activities such as mediation or arbitration clinics and clinics which do not provide live-client work, such as simulation clinics. in these circumstances, students will not be able to claim qwe, even if they are working under the supervision of a solicitor and are provided with an opportunity to develop some or all of the competencies. the following will need careful consideration: • policy clinics: if the clinic has an identifiable client that has asked for legal advice/assistance, this would be classed as qwe. however, if a policy clinic were looking at an issue created by a clinic member of other academic, this lack of identifiable client would prevent the confirmation of qwe. • the term ‘street law’ is used for a multitude of projects which can vary greatly in nature. universities running street law projects need to give careful consideration as to whether these are capable as being classed as qwe. whilst the projects will give students an opportunity to develop all or some of the competencies, not all will be engaged in the provision of ‘legal, advice or assistance’. if a project gives information rather than legal advice/assistance to a non-specific client, it would be difficult for this to be classed as qwe. clinics/universities should also check how their street law activities are viewed by their insurers; projects may be classed as ‘information only’ as opposed to ‘advice provision’ for insurance purposes. • multi-disciplinary clinics: qwe will only be able to be claimed for the legal advice given. for example: a joint tax/business law clinic will only be able to confirm qwe for the time spent engaged in the provision of legal advice. 4. confirmation of qualifying work experience for the period claimed, the candidate must obtain the following confirmation to register the qwe: from the field 85 1. the period of time being claimed; 2. there was an opportunity to develop some or all of the prescribed competencies for solicitors; and 3. no issues arose during the period being claimed that raise questions over the candidate’s character and suitability to be admitted as a solicitor. the sra are unequivocal that if a candidate has been given the opportunity to develop some or all of the competencies, qwe must be confirmed. clinics need to be aware there is no choice about whether or not to confirm qwe claimed. if the opportunity to develop has been arisen, qwe can be claimed and must be confirmed. any clinics who are not wanting to confirm qwe may have to look to changing their clinic provision to one which does not offer a legal activity, as this is the only way in which clinic activities will not amount to qwe. a solicitor must confirm qwe. importantly, this person does not need a current practising certificate. however, a barrister or a foreign qualified lawyer cannot confirm qwe. there is no way (at present) to allow a non-english or welsh solicitor the ability to confirm qwe unless they were themselves to qualify under the sqe. clinics will need to decide who will confirm the qwe claimed by the candidate. when dealing with external clinic activities (such as placements), consideration should be given to whether the clinic can confirm the qwe rather than the host organisation. if the latter were to confirm the student has potentially used one of their four stages of qwe. qwe can also be confirmed by solicitors external from the university, as long as they have personal knowledge of the student’s work and feedback.3 clinics should be reminded that confirming qwe is not the equivalent to confirming the competence of the claimant. the test of competence is sqe 2. the solicitor is confirming the candidate had the opportunity to develop the competencies. qwe 3 https://www.sra.org.uk/become-solicitor/sqe/qualifying-work-experience/qualifying-work-experienceemployers/ https://www.sra.org.uk/become-solicitor/sqe/qualifying-work-experience/qualifying-work-experience-employers/ https://www.sra.org.uk/become-solicitor/sqe/qualifying-work-experience/qualifying-work-experience-employers/ from the field 86 would be able to be confirmed in the event a student failed a credit bearing clinic module, as the solicitor is confirming facts rather than passing judgement on the student’s ability. when confirming qwe, ‘the solicitor should confirm they are complying with the principles within the solicitors code of conduct to act honestly, fairly at all times and not to abuse your position by taking unfair advantage of an individual’.4 a refusal to confirm qwe that meets the criteria will be a breach of the sra principles. however, solicitors can also rely on the same principles if they cannot, with all honesty, confirm the qwe. for example, a claim for historic qwe may be refused if: • no records have been kept • the claim goes beyond the organisation’s data retention period • there are no individuals from that time still employed who can verify the experience. 5. an ‘opportunity to develop’ qwe must include the opportunity to develop all or some of the competencies assessed in sqe 2. whilst there is no exact definition of what exactly is an ‘opportunity to develop’, the sra have given guidance on what ‘good qwe’ could look like for non-sra regulated organisations (which would include law clinics).5 a) carrying out a diverse and varied work, giving exposure to some or all of the competencies. b) regular opportunities for candidates to reflect on their performance. c) support through the work experience. 4 https://www.sra.org.uk/solicitors/guidance/colps-confirming-qualifying-work-experience/ 5 https://www.sra.org.uk/solicitors/guidance/meeting-standards-good-qualifying-work-experience/ https://www.sra.org.uk/solicitors/guidance/colps-confirming-qualifying-work-experience/ https://www.sra.org.uk/solicitors/guidance/meeting-standards-good-qualifying-work-experience/ from the field 87 d) develops professionalism and exposure to ethical issues. e) learn from experienced solicitor-role models within and outside of the organisation. f) effective supervision, to include support in collating evidence to record qwe. for university law clinics, demonstrating compliance with points b-f will be achievable as these will be expected outcomes of time spent engaged in clinic. however, point a, is more problematic and will be the focus of this section. the sra acknowledge that repetitive and limited administrative tasks and legal transactions are unlikely to help development, as is undertaking a task on a single occurrence. however, if a candidate undertakes an activity on a couple of occasions and this provides an opportunity to develop a competence, qwe can be claimed. this is a purposefully low bar threshold to allow the maximum amount of activities to be claimed as qwe. some clinics may be able to offer an opportunity to develop all the competencies, but all clinics will be able to offer some. the individual clinic will have to decide whether the clinic activities are provided to a requirement sufficient to allow an opportunity to develop a competence. to have confidence in the qwe being confirmed, clinics are advised to conduct a full audit of the activities carried out and map these against the statement of solicitor competence. for inter-curricular clinics, this mapping exercise could be linked with the module aims and objectives. (see appendix 1) clinics will then be able to confirm at the start of a candidate’s engagement, the exact competencies the candidate will have an opportunity to develop and importantly which competencies they will not. this list of competencies could be included within the initial clinic recruitment meetings or within the contract/agreement signed by the students. consideration should also be given as to whether this is mentioned in any external communications to prospective students. by limiting the number of from the field 88 competencies available to be claimed, protection is afforded to the clinic by the prevention of any disagreements with the student. students will have to be forewarned that situations may arise where they are prevented from being given an opportunity to develop. for instance, if ‘live’ clients do not attend meetings and simulation interviews are conducted instead. here, no qwe can be claimed due to the lack of ‘provision of legal service’. 6. time awarded there is no minimum time threshold for claiming qwe and no guidance given on how to calculate the time spent; only that qwe must equate to two years fte. consequently, the amount of qwe claimed by a candidate in university law clinics for a single placement, may only equate to a small amount of time – days or even hours. the sra is clear that even a very small amount of time can be claimed as qwe. given the lack of lower time limits for qwe, clinics need to counsel their students that just because they can claim qwe does not always mean they should. claiming qwe for time spent in clinics will count as one of the ‘four stages’ of qwe. the candidate should be counselled as to the implications of using one of their ‘four stages’ for what could arguably be a small amount of time. clinics would be well placed to remind students about the intrinsic value of time spent in clinic generally as work experience, the employability benefit and the social justice arguments. students will also need to be counselled that even though qwe claimed in clinic would lead to an earlier qualification date under sqe, some employers may not reduce the length of any formal training programme. whilst an employer has no discretion about when a candidate will qualify if they have amassed 2 years fte qwe, this may have no consequence regarding the employment contract (and salary) in place. when deciding what time should be awarded, university law clinics can use a ‘common-sense approach’ of confirming average hours. the sra do not prescribe from the field 89 what ‘full time or equivalent is but expect qwe providers to take a common-sense view of what they mean by full time’. if clinics want to proceed on an average hour basis for awarding qwe, this would be acceptable with the current sra rhetoric. clinics are advised as part of the competency mapping exercise to consider how long, on average, a student would be engaged with clinic. clinics should communicate the hours capable of being claimed to students at the start of any clinic activity. circumstances may arise where the average hours need to be deviated from, but it is expected these will be the exception rather than the norm. for example, if a student was not in attendance for all the sessions, the clinic may consider apportioning the time awarded on a pro-rata basis. clinics may also consider offering a portfolio of qwe to students. if various clinic activities are offered, these can all be rolled together to create one larger and perhaps more substantial amount of qwe and importantly be categorised as only ‘one stage’ of the potential four. added to this portfolio could also be time spent on placements (if they meet the qwe criteria and the solicitor confirming has personal knowledge of the student’s work and feedback given). clinics would need to make sure their internal reporting systems allow for numerous segments of qwe to be claimed throughout a student’s university career which would be classed as just one ‘stage’. 7. character and suitability when confirming qwe, the solicitor must also confirm that no character and suitability issues regarding the candidate arose during the period of qwe claimed. the sra guidance confirms: you are not making a judgement on an individual’s suitability to be a solicitor. instead, if any issues came up during the placement you are confirming, please give us the from the field 90 details and the sra will consider them under their character and suitability requirements.6 this is slightly more complicated for university law clinics, as staff involved in the clinics may be aware of information about students from outside of the law clinic and this could lead to inconsistencies in the disclosure of character and suitability issues. for example, a solicitor signing off qwe could be aware of such an issue through their role as a course lead/module lead/academic lead, personal tutor and not through their supervision in clinic. as a solicitor, the person confirming the qwe is under an obligation to raise this with the sra. the most common example would be an awareness of an academic/assessment offence. assessment offences are included within the sra’s assessment of character and suitability rules (part 2, rule 4): you have been adjudged by an education establishment to have committed a deliberate assessment offence which amounts to plagiarism or cheating, in order to gain an advantage for you or others. the following is a non-exhaustive list of serious academic offences which should be referred to the sra: • cheating is a form of examination malpractice relating to formal invigilated exams or other assessments. this could take the form of unauthorised communicating with others in or outside the exam; impersonating a student due to sit the exam, copying/attempting to copy from another exam candidate; possession of prohibited materials (written or electronic). • plagiarism occurs when a student copies words or ideas from another person and presents these words or ideas as their own in an assessment without properly acknowledging and citing the source. this does not include poor 6 https://www.sra.org.uk/solicitors/guidance/colps-confirming-qualifying-work-experience/ https://www.sra.org.uk/solicitors/guidance/colps-confirming-qualifying-work-experience/ from the field 91 academic practice, where a student has failed to understand the concept of good academic practice by inadequate referencing, omission of quotation marks and may occur in the early stage of the student’s programme of study. • collusion is an attempt to deceive the examiners by disguising the true authorship of an assessed piece of work in full or part. all students involved will be jointly liable. • commissioning or contract cheating which is asking another person to rewrite their work, such as other students, friends, relations or providers that offer such services for payment. this does not extend to proof reading. • representation where a student submits the same piece of work (in full or in part), which has already been submitted for academic credit. students should be informed at the start of their time in clinic that if they claim qwe, any issues regarding assessment offences, together with any character and suitability issues, will be referred to the sra. the student will also be under an obligation to disclose these offences at the point of admission. the clinic should make it clear that it is the sra who makes the decision and not the clinic. we suggest that students are provided with a privacy notice, when they start their clinic engagement, summarising the procedure the clinic will adopt. this privacy notice should be written in discussion with the relevant parties that will have access to this data, as well as the institution’s data protection officer. clinics may wish to adopt the following internal procedures: • prior to confirming qwe, the clinic lead is given access to the academic profiles of the students to check whether any academic offences are present or from the field 92 • the clinic lead sends a list of students’ names to a designated nominee within the school/department/university to check whether any academic offences are present. in both instances, if an academic offence is present on a student record, the clinic lead should discuss this with the student and explain if the student chooses to register the qwe with the sra, the clinic lead will disclose the academic offence. the clinic lead should also remind the student that even if this portion of qwe is not registered with the sra, the student is still personally responsible for disclosing the academic offence at the point of admission. the student should understand the clinic lead is not making a judgement on the individual’s suitability. 8. registering qwe this diagram shows the process for a student registering qwe. students do not have to register qwe within a certain time after completion. rather they can register all qwe at the point of admission. the timeline from a student’s qwe being ‘confirmed’ in the clinic to the solicitor ‘confirming’ with the sra could be many years. we recommend that clinics are open and upfront with their students about what they believe is a reasonable time in which to ‘confirm’ qwe with the sra. this could be linked with the university’s own data retention period. qwe confirmed in clinic student registers qwe with sra sra ask for confirmation from solicitor from the field 93 applicants can claim historic qwe. if a candidate has been given the opportunity to develop one or more of the competencies the claim must be confirmed. historic qwe does cause issues for university law clinics as it may be many years since a candidate has been at the clinic. in this situation, the responsibility is placed on the student to produce a full breakdown of the time and competencies being claimed. if a solicitor in clinic is being asked to confirm qwe that cannot be adequately evidenced, for example, due to the time elapsed, a solicitor would be acting within their professional duties not to confirm. clinics may want to consider encouraging students to register confirmed clinic qwe as soon as possible but this should be balanced against the merits of registering a (potentially) small amount of qwe. as an addendum to this, a student is not under an obligation to register all their confirmed qwe. for example, they could accrue 6 pieces of confirmed qwe but choose which 4 to register. 9. clinic compliance 9.1. insurance confirming qwe will not change the activity of the clinic, however clinic leads should make sure the university insurer is aware of the regulatory requirement to confirm qwe. clinic leads should also check whether insured clinic activities are classed as advice or information, as this may influence whether qwe can be legitimately claimed and thus whether it can be ‘advertised’ to students. 9.2. record keeping and gdpr detailed records of qwe confirmed in clinic will be key to enable smooth confirmation with the sra. when designing their internal records, clinic may perhaps consider: • the platform used to keep student records needs to be secure but also sustainable to survive any staff turnover. clinics should consult their from the field 94 internal it departments for compatible platforms. this will be separate to any case management system used. • checking the compliance of keeping student data for the purpose of confirming qwe with the gdpr and any internal data retention policies. • qwe records should include the competencies developed, the hours awarded, confirmation a character and suitability check has been made etc, for each amount of qwe claimed. • developing a robust system where qwe is internally confirmed by more than one solicitor to allow for staff turnover/absence. • incorporating a privacy notice into clinic handbooks/literature, so students are aware of how their data will be held and for what purpose, together with the agreed character and suitability policies. 9.3. non-english and welsh clinics qwe can be claimed in jurisdictions outside england and wales if a solicitor regulated by the sra is present. these clinics need to be aware that students could ask for qwe to be confirmed. in this situation, the clinics should follow this guidance and be aware that these claims cannot be refused if the criteria is met. from the field 95 appendix 1: competency mapping7 competency description opportunity to develop in clinic? a ethics, professionalism and judgement a1 act honestly and with integrity, in accordance with the legal and regulatory requirements and the sra standards and regulations, including: a. recognising ethical issues and exercising effective judgment in addressing them b. understanding and applying the ethical concepts which govern their role and behaviour as a lawyer c. identifying the relevant sra principles and rules of professional conduct and following them d. resisting pressure to condone, ignore or commit unethical behaviour e. respecting diversity and acting fairly and inclusively a2 maintain the level of competence and legal knowledge needed to practise effectively, taking into 7 https://www.sra.org.uk/solicitors/resources/cpd/competence-statement/ https://www.sra.org.uk/solicitors/resources/cpd/competence-statement/ from the field 96 account changes in their role and/or practice context and developments in the law, including: a. taking responsibility for personal learning and development b. reflecting on and learning from practice and learning from other people c. accurately evaluating their strengths and limitations in relation to the demands of their work d. maintaining an adequate and up-to-date understanding of relevant law, policy and practice e. adapting practice to address developments in the delivery of legal services a3 work within the limits of their competence and the supervision which they need, including: a. disclosing when work is beyond their personal capability b. recognising when they have made mistakes or are experiencing difficulties and taking appropriate action c. seeking and making effective use of feedback, guidance and support where needed from the field 97 d. knowing when to seek expert advice a4 draw on a sufficient detailed knowledge and understanding of their field(s) of work and role in order to practice effectively, including: a. identifying relevant legal principles b. applying legal principles to factual issues, so as to produce a solution which best addresses a client's needs and reflects the client's commercial or personal circumstances c. spotting issues that are outside their expertise and taking appropriate action, using both an awareness of a broad base of legal knowledge (insofar as relevant to their practice area) and detailed knowledge of their practice area a5 apply understanding, critical thinking and analysis to solve problems, including: a. assessing information to identify key issues and risks b. recognising inconsistencies and gaps in information c. evaluating the quality and reliability of information from the field 98 d. using multiple sources of information to make effective judgments e. reaching reasoned decisions supported by relevant evidence b technical legal practice b1 obtain relevant facts, including: a. obtaining relevant information through effective use of questioning and active listening b. finding, analysing and assessing documents to extract relevant information c. recognising when additional information is needed d. interpreting and evaluating information obtained e. recording and presenting information accurately and clearly. b2 undertake legal research, including: a. recognising when legal research is required b. using appropriate methods and resources to undertake the research from the field 99 c. identifying, finding and assessing the relevance of sources of law d. interpreting, evaluating and applying the results of the research e. recording and presenting the findings accurately and clearly. b3 develop and advise on relevant options, strategies and solutions, including: a. understanding and assessing a client's commercial and personal circumstances, their needs, objectives, priorities and constraints b. ensuring that advice is informed by appropriate legal and factual analysis and identifies the consequences of different option b4 draft documents which are legally effective and accurately reflect the client’s instructions including: a. being able to draft documents from scratch as well as making appropriate use of precedents b. addressing all relevant legal and factual issues c. complying with appropriate formalities d. using clear, accurate and succinct language from the field 100 b5 undertake effective spoken and written advocacy, including: a. preparing effectively by identifying and mastering relevant facts and legal principles b. organising facts to support the argument or position c. presenting a reasoned argument in a clear, logical, succinct and persuasive way d. making appropriate reference to legal authority e. complying with formalities f. dealing with witnesses appropriately g. responding effectively to questions or opposing arguments h. identifying strengths and weaknesses from different parties' perspectives b6 negotiate solutions to clients’ issues, including: a. identifying all parties’ interests, objectives and limits b. developing and formulating best options for meeting parties' objectives c. presenting options for compromise persuasively from the field 101 d. responding to options presented by the other side e. developing compromises between options or parties b7 plan, manage and progress legal cases and transactions, including: a. applying relevant processes and procedures to progress the matter effectively b. assessing, communicating and managing risk c. bringing the transaction or case to a conclusion c working with other people c1 communicate clearly and effectively, orally and in writing including: a. ensuring that communication achieves its intended objective b. responding to and addressing individual characteristics effectively and sensitively c. using the most appropriate method and style of communication for the situation and the recipient(s) d. using clear, succinct and accurate language avoiding unnecessary technical terms from the field 102 e. using formalities appropriate to the context and purpose of the communication f. maintaining the confidentiality and security of communications g. imparting any difficult or unwelcome news clearly and sensitively c2 establish and maintain effective and professional relations with clients, including: a. treating clients with courtesy and respect b. providing information in a way that clients can understand, taking into account their personal circumstances and any particular vulnerability c. understanding and responding effectively to clients’ particular needs, objectives, priorities and constraints d. identifying and taking reasonable steps to meet the particular service needs of all clients including those in vulnerable circumstances e. identifying possible courses of action and their consequences and assisting clients in reaching a decision f. managing clients’ expectations regarding options, the range of possible outcomes, risk and timescales from the field 103 g. agreeing the services that are being provided and a clear basis for charging h. explaining the ethical framework within which the solicitor works i. informing clients in a timely way of key facts and issues including risks, progress towards objectives, and costs j. responding appropriately to clients' concerns and complaint c3 establish and maintain effective and professional relations with other people, including: a. treating others with courtesy and respect b. delegating tasks when appropriate to do so c. supervising the work of others effectively d. keeping colleagues informed of progress of work, including any risks or problems e. acknowledging and engaging with others’ expertise when appropriate f. being supportive of colleagues and offering advice and assistance when required g. being clear about expectations h. identifying, selecting and, where appropriate, managing external experts or consultants from the field 104 d managing themselves and their own work d1 initiate, plan, prioritise and manage work activities and projects to ensure that they are completed efficiently, on time and to an appropriate standard, both in relation to their own work and work that they lead or supervise including: a. clarifying instructions so as to agree the scope and objectives of the work b. taking into account the availability of resources in initiating work activities c. meeting timescales, resource requirements and budgets d. monitoring, and keeping other people informed of, progress e. dealing effectively with unforeseen circumstances f. paying appropriate attention to detail d2 keep, use and maintain accurate, complete and clear records including: a. making effective use of information management systems (whether electronic or hard copy), including storing and retrieving information from the field 105 b. complying with confidentiality, security, data protection and file retention and destruction requirements d3 applying good business practice, including: a. demonstrating an adequate understanding of the commercial, organisational and financial context in which they work and their role in it b. understanding the contractual basis on which legal services are provided, including where appropriate how to calculate and manage costs and bill clients c. applying the rules of professional conduct to accounting and financial matters d. managing available resources and using them efficiently the past, present and future of clinical legal education in poland reviewed article – teaching and learning in clinic the past, present and future of clinical legal education in poland kamil mamak, jagiellonian university; the pontifical university of john paul ii in cracow, poland katarzyna julia kowalska, university of warsaw, poland ewelina milan, lazarski university, poland paweł klimek andrzej frycz modrzewski cracow university, poland abstract this paper was written by four lecturers, who are employed at different universities located in poland's two largest cities: warsaw and cracow. two of these universities are financed by the government and the other two are financed from students' fees. our paper critically examines the history of clinical legal education in poland. it also assesses the economic, legal and social background to the differences and similarities between clinical legal education and legal practice. furthermore, the paper explains how learning outcomes have led to law clinics becoming a pedagogical and professional treasure trove for individual clinical students and the wider law faculty. the results of this research will demonstrate the invaluable role of learning outcomes to clinical education and professional development. therefore, the paper will suggest that the methodology of clinical legal education can be employed as a model for polish higher education. i. history of clinical legal education in poland from a practical point of view, the oldest profession of legal assistance in poland is the advocate profession. its sources go back to the duchy of warsaw and the napoleonic code applicable therein[footnoteref:1]. therefore, after regaining independence by poland in 1919, the self-government of advocates was established. the sources of similar analogical profession, the attorney at law profession, date back to the 1960s, when, following the limitation of advocates' privileges, attorneys at law became the only lawyers rendering services to state-owned enterprises. at the beginning of the 1980s, the self-government of attorneys at law was established. subsequently, privileges of attorneys at law have constantly been extended. finally, since 2015, attorneys at law and advocates, have been eligible to appear before courts in all cases and differences between these two legal professions are marginal. in addition, the 1990s have seen the emergence of a new profession of the legal adviser. this is not a licensed attorney, yet its position, similarly to that of legal clinics, has been anchored both in the sphere of codified and applied law[footnoteref:2]. from a theoretical point of view, the training of future lawyers in poland has a much longer tradition, with the first faculty of law established in cracow in 1364. it took 600 years to combine academic and practical training, as only by 1st october 1997 the first legal clinic at the jagiellonian university was opened, at the same time being the first legal clinic in cracow,[footnoteref:3] and first successful legal clinic in central and eastern europe[footnoteref:4]. [1: p. skuczyński, etyka adwokatów i radców prawnych, c.h. beck 2016, p. 6.] [2: act of 2 july 2004 on freedom of business activity (consolidated text: dziennik ustaw of 2015, item 584, as amended); judgment of the constitutional tribunal of 26 july 2003 sk 22/02 (dziennik ustaw of 2003, no. 206, item 2012, v. 1.).] [3: m. szewczyk, thoughts on the reform of the teaching of law [in] the legal clinic. the idea, organization, methodology, c.h. beck 2005, p. 17.] [4: e. rekosh, the development of clinical legal education: a global perspective – international experience, the history of legal clinics [in] the legal clinic. the idea, organization, methodology, c.h. beck 2005, p. 43-44.] however, the very idea of establishing legal clinics in poland in the faculties of law is much older. the oldest known postulate of introducing clinical training in poland originates from “studya i szkice prawne,” [legal studies and sketches] a book published in 1904, in which szymon rundstein contained a chapter entitled, “legal clinics”[footnoteref:5]. this chapter highlighted the necessity of creating legal clinics in poland, because he regarded the then forms of training future lawyers as having little practical effect. rundstein even compared the training of law at the time to teaching amputation using carrots, which took place at certain german medical universities[footnoteref:6]. the model of legal clinic functioning, presented in the said publication, was based on the model being discussed in germany and did not differ significantly from the one present nowadays in poland. the publication indicated that: [5: s. rundstein, studya i szkice prawne, lviv 1904, pp. 229-235. ] [6: ibid, p. 232.] “in order to prevent the excessive scholastics of lectures, the establishment of so-called legal clinics by universities was proposed. to make it a little bit clearer – the intention was to establish free-of-charge legal assistance offices for poorer people. an office is to be set up at the university under the management of a professor designated by a faculty. advice is provided by specialists in the presence of students, who, by doing so, may familiarize themselves with life, participate in discussions, answer questions and redraft required acts […]”[footnoteref:7] [7: ibid, p. 233.] the core of these assumptions function nowadays: clinics are operated by universities, legal advice is provided for indigent people, students take part in discussions and prepare written opinions and documents and the specialised staff supervise the process. the main difference is that it is not lawyers, but students who provide advice, which is possible due to the fact that the written manner of responses was set as a principle of operations of clinics. written manner is the inner requirement of operation of a legal clinic which is required by the legal clinics foundation in poland[footnoteref:8]. [8: all clinics in poland have to meet standards of the polish legal clinics’ activity which are required by the legal clinics foundation. one of the standards require that: “legal advice is given in written only”. the standards are available in english on the website: http://www.fupp.org.pl/en/legal-clinics/standards, access: 10.07.2017.] the direct model of functioning of clinics in poland has not been influenced from germany, but from the united states. it is connected with, inter alia, prof. maria szewczyk, who, during a scholarship in the united states, familiarised herself with legal clinics operating there. her keen interest in this idea convinced the authorities of the faculty of law and administration of the jagiellonian university to create a first legal clinic in poland, which happened, as indicated above, in 1997 with the help of halina nieć. an anecdote, told by prof. szewczyk, reveals that the idea of visiting a law clinic in the united states, during her scholarship, was regarded the same as a proposal for visiting a university hospital and for a long time she refrained from it.[footnoteref:9] [9: cf. t. bętkowska, świąteczny podarunek, alma mater, december 2012 – january 2013, no. 152–153, pp. 12-13.] a year before the opening of the first clinic in cracow, a conference organised by the european law student's association was held, which related to clinical legal education. it was organised with the assistance of the american embassy and the polish bureau of the organization for security and co-operation in europe.[footnoteref:10] the aim of this conference was to familiarise polish academicians with the idea of clinical legal education. the second clinic was then established at the university of warsaw in 1998. other clinics at the non-public universities, which are in the care of the authors of this publication, were established in 2004 (the lazarski university student legal clinic, warsaw) and 2009 (the student legal clinic at the faculty of law, administration and international relationships of the andrzej frycz modrzewski, cracow university).[footnoteref:11] [10: k. olechowicz, historia klinik prawa, klinika 5(9)/2008, p. 20.] [11: for more information please see, http://spp.ka.edu.pl (last cited 24/05/2017).] the establishment of the university legal clinics foundation (ulcf)[footnoteref:12] in 2002 was an important moment in the history of the polish clinical movement, which had already been postulated during the meeting of legal clinics' representatives in 2001.[footnoteref:13] the statutory objective of the ulcf is financing legal clinics and carrying out other programs of practical legal education. this includes preparing and standardising the activity of the clinics, initiating works on the organisation and the promotion of projects of legal regulations regarding their activities, in cooperation with legislative, executive and judicial authorities and self-governments of legal professions. the ulcf, ran since its creation by dr. filip czernicki, standardises the operations of the legal clinics in poland, helps to establish new entities and unites the community of the clinical movement in poland. this is enabled through organising periodical conferences, during which both the students and their mentors have an opportunity to share their experiences and problems that relate to their clinics. [12: for more information please see, http://www.fupp.org.pl/o-fundacji/statut (last cited 24/05/2017). ] [13: f. czernicki [in:] studencka poradnia prawna. idea. organizacja. metodologia, warsaw 2005, p. 238. ] just after two years of law clinics operating in poland, it was advocated to regulate their operations and principles of functioning by means of an act. in addition, it was suggested that a system of free-of-charge legal assistance be established within legal clinics, whereby students could represent their clients in courts.[footnoteref:14] until now, the aforesaid recommendations have not been implemented, even though on 5th august 2015, the free-of-charge legal assistance and legal education act was enacted.[footnoteref:15] legal clinics still remain outside the system of free-of-charge legal assistance, and people who provide such advice are not authorised to act on behalf of the clients in courts. [14: f. zoll, introduction to a draft act on university legal clinic, klinika. czasopismo uniwersyteckiej poradni prawnej uj, no. 1(2)/2000, p. 9.] [15: ustawa z dnia 5 sierpnia 2015 r. o nieodpłatnej pomocy prawnej oraz edukacji prawnej, dziennik ustaw of 2015, item 1255, as amended.] the model of clinical legal education which was implemented in poland, is a “live client clinic”[footnoteref:16], “i.e. the education through work with a real client who has a legal problem, which reflects the work of a legal adviser. besides, the second important pillar of the practical legal education, which is commonly linked with legal clinics, are street law-style programs – carried out on a large scale at the lazarski university. it is worth noticing that poland was the third country in which the idea of street law in legal education was introduced, thanks to prof. monika płatek from the university of warsaw”[footnoteref:17]. [16: m. szewczyk, idea uniwersyteckich poradni prawnych, klinika. czasopismo uniwersyteckiej poradni prawnej uj, no. 1/1999, p. 15.] [17: a. światłowski, place of „clinic programmes” of the street lawtyfe in legal clinic education in poland, klinika. czasopismo uniwersyteckiej poradni prawnej uj, no. 3/2000, p. 20.] an important aspect which connects the polish clinical movement is publications, which are generated as a result of the operations conducted in legal clinics. one of the experience exchange forums is the magazine klinika, initially issued by the jagiellonian university, and later by the ulcf, in cooperation with c.h. beck publishing company[footnoteref:18]. the editorial information of the first issue from 1999, stated that the magazine was supposed to be, “a forum of exchanging experiences regarding the operation of particular clinics. it was supposed to present (…) not only “the clinical education method”, but also all innovative educational programs.”[footnoteref:19] it seems that the assumptions of the authors of the first issue remain valid now – merely two decades after writing them down. indeed, it is a magazine which aims to improve the operation of the legal clinics in poland by exchanging experiences. in regards to the publications, it is worth noting that the ulcf, in cooperation with c.h. beck, managed to issue a series of textbooks, which help to improve the workshop skills of mentors[footnoteref:20] and students[footnoteref:21]. [18: “klinika. czasopismo uniwersyteckiej poradni prawnej uj” issue 1/1999.] [19: od redakcji [in:] klinika. czasopismo uniwersyteckiej poradni prawnej uj, no. 1/1999, p. 7. ] [20: e.g. i. kraśnicka [ed.], metodologia pracy w spp, warsaw 2009, b. namysłowska-gabrysiak [ed.], studencka poradnia prawna. podręcznik dla opiekunów, warsaw 2009.] [21: e.g. b. namysłowska-gabrysiak [ed.], studencka poradnia prawna. kompendium dla studentów, warsaw 2008. ] the short, review of the history of the polish clinical movement seems to confirm the opinion of prof. eleonora zielińska discussed previously, that the commencement of clinical education within law faculties is regarded as the beginning of a new era in educating lawyers.[footnoteref:22] in addition, nowadays it is hard to imagine a law faculty lacking this kind of education, further proven by the number of legal clinics in operation – currently in poland there are 25 law clinics in 16 cities.[footnoteref:23] [22: e. zielińska [in:] studencka poradnia prawna. idea. organizacja. metodologia, warsaw 2005, p. xvi. ] [23: data for 2015/2016, the report entitled “studenckie poradnie prawne. podsumowanie działalności za rok akademicki 2015/2016”. http://www.fupp.org.pl/kliniki-prawa/publikacje/raporty (last cited 24/05/2017). ] ii. legal, economic, political and social denotation of clinical legal education in poland twenty years of the evolution of clinical education has had a bearing on polish codified and applied law.[footnoteref:24] therefore, the current polish clinical movement is worth analysing in terms of economic, social, political and legal issues. the objective of this analysis is to highlight the perspectives of the development of the clinical movement, in the background of the parallel expanding conglomerate of polish liberal legal professions, the centralising market of fee-based and free-of-charge legal services and the generational conflict, which is a natural phenomenon in a stable country.[footnoteref:25] [24: judgment of the constitutional tribunal of 26 july 2003 sk 22/02 (dziennik ustaw of 2003, no. 206, item 2012, v. 1.).] [25: r. prasad, generation gap. a sociological study of intergenerational conflicts, new dehli 1992, p. 191. ] the multidimensional analysis is always subject to a degree of subjectivity.[footnoteref:26] therefore, it must be stated that the author of this section is a 31-year-old male, a legal adviser, trainee attorney at law and an academic teacher. he provides legal assistance for both fee-based and free-of-charge legal services. in addition, he practises both as a tax law specialist and as a lawyer in general. his geographical area of practice embraces the most urbanised part of poland, i.e. the upper silesia and the cracow agglomeration, wherein area of 17,662.5 square kilometres is inhabited by circa 5 million people, therefore almost two times more than in the warsaw agglomeration[footnoteref:27]. however, this area does not have a function of a capital city, but its role is just as important, because it serves more like the largest capital city’s background. as a consequence, the biggest law firms (dentons, sołtysiński kawecki & szlęzak, domański zakrzewski palinka, cms, deloitte legal)[footnoteref:28] and the so-called “big four” tax advisory companies (deloitte, kpmg, pwc, ey),[footnoteref:29] with their registered offices in warsaw, focus on this area to a lesser extent. moreover, this area lacks the autonomy, unified local self-government, one unified court of appeal and tax chamber, a result of which the law firms are run by sole practitioners more frequently and the prices of legal services are lower than in the capital city. [26: a. gelman, c. hennig, beyond subjective and objective in statistics, 2015, p. 9. http://www.stat.columbia.edu/~gelman/research/published/gelman_hennig_full_discussion.pdf (last cited 02/01/2018).] [27: central statistical office, size and structure of population and vital statistics by territorial division in 2010, 2011, pp. 13-14. https://web.archive.org/web/20111127094758/http://www.stat.gov.pl/gus/5840_655_plk_html.htm (last cited 02/01/2018).] [28: for more information please see, http://www.rp.pl/rankingi/304209944-ranking-kancelarii-prawniczych-rzeczpospolitej-2017---wyniki.html (last cited 20/05/2017).] [29: for more information please see, http://www.rp.pl/rankingi/306219998-ranking-firm-doradztwa-podatkowego-2016-wybralismy-najlepszych. html (last cited 20/05/2017).] before an analysis of the centralisation of the market of fee-based and free-of-charge legal services is made, it is worth discussing the conglomerate of the polish liberal legal professions. currently, alongside the advocates, attorneys at law and legal advisers, legal services are being rendered as part of quasi-legal professions, such as a tax adviser, a chartered accountant and a patent agent[footnoteref:30]. in addition, many young lawyers decide to specialise in a particular field of law. trainee advocates and trainee attorneys at law are entitled to represent the clients in courts, from the completion of the sixth month of traineeship, which lasts 45 months in total[footnoteref:31]. as a result, we can talk about the conglomerate and not the orderly system of the polish liberal legal professions. this conglomerate is full of paradoxes, such as: [30: act of 5 july 1996 on tax advisory services (consolidated text: dziennik ustaw of 2016, item 794, as amended), act of 7 may 2009 on chartered accountants and their self-government, entities authorized to audit financial statements and on public supervision (consolidated text: dziennik ustaw of 2016, item 1000, as amended), act of 11 april 2001 on patent agents (consolidated text: dziennik ustaw of 2016, item 221, as amended).] [31: act of 26 may 1982 – law on advocacy (consolidated text: dziennik ustaw of 2016, item 1999, as amended), act of 6 july 1982 on attorneys at law (consolidated text: dziennik ustaw of 2016, item 233, as amended).] · employing attorneys at law and advocates in the offices of legal advisers, due to the lack of restrictions for the latter to advertise their services · running law offices independently by trainee attorneys at law and trainee advocates, who, at the same time, act as legal advisers · rendering tax law services by trainee attorneys at law and trainee advocates, who, since the completion of the sixth month of traineeship, have entitlements equal to those of tax advisers · a possibility to account fees for attorney at law traineeship as tax deductible costs, which is not applicable for fees for advocates’ traineeship. to conclude, there are two legal professions self-governments and internal regulators (of advocates and attorneys at law) and three quasi-legal professions self-governments and internal regulators, which, from the point of view of the market, restrict the powers of unlicensed legal advisers to render legal services. moreover, these self-governments are dominated by the older generation.[footnoteref:32] nevertheless, the younger generation still enters the legal services market, carefully omitting the advertisement ban and making use of expanded powers of trainee advocates and trainee attorneys at law. as a result, the diversified conglomerate of liberal legal professions originated, in which the free market crowds out the licensing. [32: the average age of members of the presidium of the polish bar council (prezydium naczelnej rady adwokackiej) and the presidium of the national council of attorneys at law (prezydium krajowej rady radców prawnych) is 57 years. http://www.nra.pl/nra.php?id=329 (last cited 03/01/2018), http://kirp.pl/o-samorzadzie/organy-ustawowe-i-regulaminowe/prezydium-krajowej-rady-radcow-prawnych/ (last cited 03/01/2018).] at the same time, legal services are rendered by law students, who do it without remuneration employed in law firms, or free of charge in legal clinics under the guidance of academic teachers.[footnoteref:33] during 2015 and 2016, however, a parallel state system of free-of-charge legal assistance was established.[footnoteref:34] consequently, the younger generation of lawyers on a wider scale has been grouping in non-governmental organisations (ngos), which, on the basis of the contests organised by local self-governments, constitute 50 per cent of 1,500 free-of-charge legal assistance points (flap).[footnoteref:35] the remaining 50 per cent of the flap are those operated by legal professions self-governments of advocates and attorneys at law. moreover, on the estimation based on the questionnaires, it stems that 40 per cent of lawyers employed in the flap and recruited by ngos are graduates of the legal clinics.[footnoteref:36] [33: currently, the university legal clinics foundation coordinates 25 legal clinics, in which circa 2,000 students and 300 lawyers operate. http://www.fupp.org.pl/kliniki-prawa/publikacje/raporty (last cited 20/05/2017).] [34: act of 5 august 2015 on the free-of-charge legal assistance and legal education (dziennik ustaw of 2015, item 1255, as amended).] [35: dogma association in mikołów, running 33 flap that hire 52 lawyers (mainly in the upper silesia), can serve as an example.] [36: the questionnaire conducted among the lawyers employed by the dogma association in mikołów on 9 april 2017 thanks to the courtesy of president iwona serbeńska.] as a result, during 2015 and 2016 the quasi-regulated market of free-of-charge legal services began in poland. nonetheless, legal services are concurrently rendered by the offices of the members of parliament and the senatorial offices, as well as by small law firms. these law firms act due to economic interests, and treat a free-of-charge service as a service aimed at attracting clients. that said, in poland, free-of-charge legal services exist in parallel to the corporations of liberal legal professions. in the former, the clinical legal education method was applied only with respect to part of the younger generation of lawyers[footnoteref:37]. nevertheless, in the light of the increased competition, clinical legal education is a method that allows adopting models of responsibility for the client and strengthens the quality of the services rendered. this method shall have a wider application in the process of the education of aspiring lawyers and its use by the older generation of practice teachers[footnoteref:38] and ngos, so that sole practitioners can develop the know-how worked throughout the last 20 years by ulcf. [37: a. zoll [in:] studencka poradnia prawna. idea. organizacja. metodologia, warsaw 2005, p. xv.] [38: the teachers, who teach practical subjects during academic studies and during advocates and attorneys at law apprenticeships, such as civil or criminal procedure, so students and trainee: advocates and attorneys at law shouldn't take a part in so many lectures and solve theoretical cases, but they should write more documents, such as writs or appeals and take a part in real cases, at least they should simulate.] the brands of the biggest and most renowned law firms indicate the increasing involvement in the english, scottish, canadian, american and dutch capital,[footnoteref:39] although the polish market of free-of-charge legal services is certainly not as dominated by the so-called “big four” as the market of fee-based tax advisory[footnoteref:40]. however, it cannot be disregarded that the fastest growing law firm in poland is deloitte legal, with kpmg d. dobkowski, pwc legal and ey law also operating in the polish fee-based market of legal services.[footnoteref:41] in poland it is still not customary to establish branches providing free-of-charge legal assistance in the biggest law firms in order to strengthen their image. it is even more important as the flap are mainly located outside the area of the capital city and the public money aimed at financing the flap are distributed on the basis of tenders organised by local self-governments[footnoteref:42]. [39: http://www.rp.pl/rankingi/304209944-ranking-kancelarii-prawniczych-rzeczpospolitej-2017---wyniki.html (last cited 20/05/2017).] [40: http://www.rp.pl/rankingi/306219998-ranking-firm-doradztwa-podatkowego-2016-wybralismy-najlepszych. html (last cited 20/05/2017).] [41: http://www.rp.pl/rankingi/304209944-ranking-kancelarii-prawniczych-rzeczpospolitej-2017---wyniki.html (last cited 20/05/2017).] [42: article 11 paragraph 1 and 2 of the free-of-charge legal assistance and legal education act 2015.] there are tax solutions that could boost the free-of-charge legal assistance activities of the biggest law firms. such solutions encompass the possibility to reduce the tax basis of the personal income tax (pit) and corporation income tax (cit) by the donations granted to ngos and the possibility to transfer 1% of the pit to the latter.[footnoteref:43] such solutions already exist in the tax systems of other highly developed countries.[footnoteref:44] moreover, the corporate structures coming from the highly developed countries such as the united states, canada, australia, japan, germany, france, the netherlands and the united kingdom, are, as a rule, comprised of the so-called corporate foundations, such as the ronald mcdonald house charities[footnoteref:45]. therefore, it is likely to expect that the “big four” will enter the polish market of free-of-charge legal services in the coming years. [43: act of 26 july 1991 on the personal income tax (consolidated text: dziennik ustaw of 2016, item 2032, as amended); act of 15 february 1992 on the corporate income tax (consolidated text: dziennik ustaw of 2016, item 1888, as amended)] [44: p. klimek, elementy zapobiegające nadmiernym odliczeniom darowizn na gruncie podatków dochodowych, [in:] i. czaja-hliniak (ed.), nauka prawa finansowego po i dekadzie xxi wieku – księga pamiątkowa dedykowana profesorowi apoloniuszowi kosteckiemu, cracow 2012, pp. 449-463] [45: p. klimek, możliwość odliczenia 1% podatku dochodowego na rzecz fundacji korporacyjnych i społecznych, edukacja prawnicza, no. 5 (125); extra supplement: klinika – czasopismo fundacji uniwersyteckich poradni prawnych, no. 10 (14), pp. 21-23.] nevertheless, if such action is to have only the image reasoning behind it, it will be similar to french-german opel solution which manufactures cars in the polish upper silesia and exports them to the united kingdom under the vauxhall brand. in essence, rendering the high quality free-of-charge legal services comes down to the models adopted in clinical legal education and the responsibility for the client's problem. in the absence of such models, the authority of the clinical movement can collapse in the same manner as the authority of the biggest law firm, which lobbies the government authorities in an unreasonable manner.[footnoteref:46] [46:  http://www.batory.org.pl/upload/files/programy%20operacyjne/odpowiedzialne%20panstwo/lobbing_raport. pdf (last cited 20/08/2017)] therefore, the key challenge for the polish clinical movement is to educate by disseminating good models, based on practical abilities, such as regularity of conduct, revision of the most essential newly issued legal acts and court judgments and interviewing a client in a reliable and skillful manner in order to determine the nature of the problem.only then will assistance which is provided to the most socially disadvantageous people be effective, irrespective of whether it will be provided by a student, legal adviser, advocate, attorney at law or tax adviser, acting individually or in a renowned law firm. to sum up, in order to develop clinical education throughout all law schools in poland, the clinical movement shall: · from the economic point of view: take into account the phenomenon of increasing importance of the biggest law firms, which may be interested in the market of free-of-charge legal services · from the social point of view: remain resilient to the intensifying divisions between lawyers providing legal assistance · from the political and legal point of view: react to decisions which are contrary to pro bono interests, by lobbying in order to guarantee that legal clinics have the same status of the flap and are financed from the public resources. however, if this status and financing proves to be too excessive, then the clinical movement shall focus on the cooperation with ngos, as the estimates highlighted in various questionnaires indicate that in 2016 the flap refused the assistance in 68,300 cases, including assistance to the following persons: poor, disabled, unemployed, those afflicted with alcoholism, single parents or non-nationals.[footnoteref:47]therefore, there is still a considerable number of people who require legal assistance. however, the large amount of ngos can be developed, thanks to younger generation of lawyers educated with clinical legal education method. ngos do not possess as advanced legal knowledge and skills as the clinical movement can provide. [47: the questionnaire conducted among the lawyers employed by the dogma association in mikołów on 9 april 2017 thanks to the courtesy of president iwona serbeńska.] iii. the legal clinic – a treasure trove of learning outcomes since, the 1970's the european union has sought to harmonize and improve the educational systems of member states through the adoption of a centrally agreed set of frameworks and policies known as the bologna process.[footnoteref:48] one of the most important aspect of this process was the establishment of learning outcomes that were then incorporated into the parliamentary legislation that regulates the educational practices of member states. [footnoteref:49] in poland, the 2005 higher education act incorporated the standardised qualification framework into law.[footnoteref:50] this was augmented by the 2011 education act which requires all elements of syllabi to be matched to specified learning outcomes.[footnoteref:51] it is hoped that this will led to a shift from subject/teacher based pedagogy to learning that is more focused on the needs of the learner. [48: http://www.pilnet.org/public-interest-law-resources/25-clinical-legal-education-and-the-bologna-process.html] [49: “the shift to learning outcomes. conceptual political and practical developments in europe”, cedefop 2008] [50: law on higher education (pdf, dziennik ustaw – official journal of laws of 27 july 2005, no.164, item 1365, as amended; art. 9 ust. 1. punkt. 2). http://en.uw.edu.pl/wp-content/uploads/2014/06/law_on_higher_education.pdf (last cited ?).] [51: rozporządzenie ministra nauki i szkolnictwa wyższego z dnia 2 listopada 2011 r. w sprawie krajowych ram kwalifikacji dla szkolnictwa wyższego, dz.u. 2011 nr 253 poz. 1521.] these outcomes are divided into three categories: knowledge, skills and social competences that are gained in the course of education by a learner:[footnoteref:52] [52: for more information please see, http://www.nauka.gov.pl/krajowe-ramy-kwalifikacji/ (last cited on 26/05/2017).] a) knowledge – “the outcome of the assimilation of information through learning. knowledge is the body of facts, principles, theories and practices that is related to a field of work or study. in the context of the european qualifications framework,[footnoteref:53] knowledge is described as theoretical and/or factual”[footnoteref:54] [53: the european qualifications framework (eqf) is “a reference tool to compare the qualification levels of the different qualifications systems and to promote both lifelong learning and equal opportunities in the knowledge-based society, as well as the further integration of the european labor market, while respecting the rich diversity of national education systems”.] [54: annex i for recommendation of the european parliament and of the council of 23 april 2008 on the establishment of the european qualifications framework for lifelong learning, (official journal 111/1 of 6.5.2008). https://eurlex.europa.eu/legalcontent/en/txt/html/?uri=celex:32008h0506(01)&from=en (last cited?).] b) skills – “the ability to apply knowledge and use know-how to complete tasks and solve problems. in the context of the european qualifications framework, skills are described as cognitive (involving the use of logical, intuitive and creative thinking) or practical (involving manual dexterity and the use of methods, materials, tools and instruments)”[footnoteref:55] [55: ibid.] c) competence – “the proven ability to use knowledge, skills and personal, social and/or methodological abilities, in work or study situations and in professional and personal development”. in the context of the european qualifications framework, competence is described in terms of responsibility and autonomy.”[footnoteref:56] [56: ibid.] the previous section discussed developments in legal education and the practice of working with real clients in polish legal clinics. this has enabled learning outcomes to be introduced to a greater extent than other parts of polish higher education. the ultimate aim of the education process of a legal clinic is to develop a student’s social competences and skills, which are based on knowledge of the law, that the student can use to feed into their future learning. an equally important element of education in polish clinics is that, underlying all three components (knowledge, social competences and skills) stands a human being (the student) living in a particular economic, political, legal and cultural system, who throughout the entire education process is confronted with ethical dilemmas. in the light of the considerations set forth in the previous section of this publication, the legal clinic may be perceived as the place where both the student and the teacher (mentor) are effectively educated. the authors of this article understand the aims of effective education are the following: a) preparing students for professional practice and provide effective assistance to the clients; b) developing the students' sense of taking responsible for problems; c) assisting the student in obtaining such learning outcomes that allows them to understand what has been learnt. this understanding of the educational process allows educators to fully implement in the clinics the requirements of the bologna process, together with its flagship “learning outcomes.” the positive effects of this have been registered by both the students and the university senior management. there is a common belief among students that law clinics are ideal places where, under the vigilant eye of their mentors, one can verify their knowledge, skills and competences required for the practical exercise of the profession.[footnoteref:57] this positive effect has been noted by the senior management of the authors’ universities, as it is seen as a demonstration of the implementation of the aims envisaged by the bologna process and successive ministers of education. [57: in press r. dunn ‘the knowledge, skills and attributes considered necessary to start day one training competently and whether live client clinics develop them’ (2018) ] at the same time, what has been emphasised by the authors in the previous sections is that the notion of “effective education” cannot be considered in isolation from the economic, legal, social and cultural situation in which the students and their mentors function. pedagogical practices in poland are often centred on more traditional knowledge or teacher centred methods and this has proved to be a barrier to a more fuller implementation of the learner centred approaches based on learning outcomes. in addition, many students focus on the attaining of a qualification or certificate as a means in itself rather than focusing on developing their skills and knowledge. in contrast to these more traditional teacher/knowledge centred pedagogical practices favoured in most of polish higher education, legal clinics have embraced more learner centred methods. the considerable autonomy enjoyed by polish legal clinics has allowed them to employ a number of fresh approaches to clinical education, comprising of diverse approaches to the students' education, applied educational methods and open-mindedness of the academic teachers. above all, such clinics are treasure troves of knowledge, in regards to the educational methods and developing learning outcomes, which are not merely a wish list. it should be noted that the learning outcomes are most effective when they are transparent and measurable, clearly defined and able to be accomplished by the students. transparency enables the student and  the clinician to clearly understand what learning needs to be achieved, while measurability means it is clear to what extent the student has achieve their goal. it also can provide  a robust framework for assessing and assessment. in addition these elements can provide the basis for a dialogic relationship between clinicians and students. beyond the university environment potential employers could use these transparent and measurable learning outcomes to select applicants.   this could be accomplished by the legal clinic emphasising to students the links between the syllabus, assessment criteria and its expectation of students. however, more work needs to be done in this area. the classes in polish legal clinics are planned in such a manner that the outcomes can contribute to the achievement of the educational goals set forth in bloom's taxonomy (see figure 1), displayed below,[footnoteref:58] which constitutes a hierarchy of increasingly complex processes. these processes, in the context of clinical legal education, are aimed at preparing students both in the course of short seminars and training sessions, as well as for producing opinions or judicial documents.[footnoteref:59] [58: bloom, b. s. (ed.). taxonomy of educational objectives. vol. 1: cognitive domain. new york: mckay, 1956.] [59: tyler, jo a., and faith mullen. "telling tales in school: storytelling for self-reflection and pedagogical improvement in clinical legal education." clinical l. rev. 18 (2011): 283.] figure 1 – bloom’s taxonomy of learning[footnoteref:60] [60: https://www.google.pl/search?q=bloom+taksonomii&source=lnms&tbm=isch&sa=x&ved=0ahukewirkdewp4_uahxhsbqkhbmhd3aq_auiccgd&biw=774&bih=373&dpr=2.4#imgrc=ao5ahslfk6qbem (last cited 28/05/2017). ] at the top of his taxonomy, bloom placed “creating,” which can be understood as the ability to design, construct, use and create something new. creating, being the final learning outcome, ideally fits into the education process in polish legal clinics where the final learning outcome for the student is the preparation of an opinion or a writ. therefore, the outcome of the student's work with each client is creating something new and, in order to accomplish it, the student has to apply social skills competences based on the gained knowledge such as successfully interaction with clients, fellow students and mentors. the knowledge which the student has , understood, applied, analysed and assessed is to meet the challenge of providing legal assistance. we strongly believe that working with clients, rather than published materials, gives students valuable experience of the complexity of real life legal practice. this can furnish students with a sense of the enormous responsibility for providing effective assistance to clients and the potentially far reaching consequences of their actions. working with clients requires the tutor to introduce additional learning outcomes, which, without the client's participation, would not be possible. soren kierkeegard argues that having social skills are more important than an understanding of theory or pedagogy when seeking to relate to another person in a subject manner.[footnoteref:61] as clinicians we can help students develop these personal competences through their practice in law clinics. [61: s. wasiołka,  the presentation narzędzia informatyczne w pracy dyrektora szkoły, poznań 27.11. 2013  https://www.slideshare.net/jozefzbazin/prezentacja-dyrektorzy-pozna] the polish qualifications framework can be adapted by institutions to better meet their particular needs. [footnoteref:62] for example at lazarski university, the faculty of law and administration directional learning outcomes (see table 1 below) defines 11 desirable skills. this means that even if the student does not master everything, he will still graduate. however, the level of their mastery of the skills is partly reflected in their final grade.[footnoteref:63] [62: j. kudła, m. stachowiak – kudła, a. figurski quality of teaching and research in public higher education in poland: relationship with financial indicators and efficiency „journal of management and business administration. central europe” vol. 24, no. 4/2016, p. 88–108 0] [63: in the polish education system, each student after completing a course receives a grade on the  scale of 1 5, with 1 being the lowest grade and 5 the highest. passing grades are from 3 to 5. however, with regards to ects points all passing grades are awarded the same number of ects points. therefore, a clear description of the attainment of the desirable skills by a student is important for potential employers as a way to differentiate between candidates.] table 1 faculty of law and administration lazarski university directional learning outcomes: law k_u01 1. is able to properly interpret and explain the importance of particular legal norms and mutual relations between these norms within different branches of law k_u02 2. is able to use the acquired theoretical knowledge of different branches of law to describe and analyse the reasons and the course of processes of amending law and is able to formulate own opinions and select critical data and methods of analysis that are used in legal studies k_u03 3. is able to forecast changes in legal regulations with the use of sophisticated research methods and tools typical of legal studies k_u04 4. is efficient in dealing with the polish legal system; uses adequate norms and legal rules in order to solve particular problems; has good skills in solving complicated legal problems in specified branches of law in accordance with subjects selected on his/her own k_u05 5. has good skills in using the acquired knowledge to present own opinions, doubts and suggestions as well as supporting them with elaborated arguments and following ethical principles k_u06 6. has a skill in proposing particular solutions of legal problems on his/her own and in carrying out a procedure of decision-making in this area k_u07 7. has a skill in forecasting consequences of the planned actions in different branches of law k_u08 8. has well-developed research skills; formulates issues, selects adequate research methods, techniques and tools that are used in legal studies; develops, presents and interprets research findings; is able to draw adequate conclusions and to indicate directions of further research within the selected branches of law k_u09 9. has a good skill in drawing up basic procedural documents regarding legal issues, preparing written analyses of selected legal issues with a proposal of adequate solutions with the use of the acquired theoretical knowledge k_u10 10. has a good skill in preparing speeches directly connected with legal matters and regarding issues on the borderline between law and other sciences with the use of the acquired theoretical knowledge k_u11 11. has linguistic skills in accordance with the requirements specified for the b2 level of common european framework of reference for languages the analysis of the survey outcomes lets us conclude that work within the clinic allows the students to gain and preserve the skills marked with symbols k_u01, k_u04, k_u05, k_u06 and k_u09. the most important out of the skills appears to be the one marked with symbol k_u09, i.e. “has a good skill in drawing up basic procedural documents regarding legal issues, preparing written analyses of selected legal issues with a proposal of adequate solutions with the use of the acquired theoretical knowledge”[footnoteref:64].” [64: https://www.lazarski.pl/fileadmin/user_upload/dokumenty/wydzial-prawa-jakosc/efekty_ksztalcenia_prawo.pdf] this ability is of particular importance, as the preparation of even a simple writ in the polish legal system requires an in-depth analysis of a problem, because in the majority of cases a writ constitutes a written analysis of the problem (e.g. in the case of a statement of claim or complaints) fulfilling the requirements of the procedural law. furthermore, it is essential to remember that errors or formal shortcomings in pleas cannot be often corrected or supplemented during polish court proceedings. therefore, any erroneous analysis of the problem may result in the erroneous preparation of court documents without the possibility of corrections, which may result e.g. in the exhaustion of the access to court in seeking remedies. of course, let us not forget the fact that establishing a successful legal clinic would not be possible without the support of the clinical teachers, who are well aware that only through the use of well-selected educational methods may the desired learning outcomes be achieved. therefore, in the context of the changes to the manner of teaching expected to be implemented in polish higher education, law clinics become not only a place for creating concepts on dealing with such changes, but also a resource bank of experience and knowledge for practitioners,  who are able to cope with new challenges. to sum up, the key to the success of polish legal clinics lies in the structure and implementation of these educational programs. students can achieve the learning outcomes, allowing them to become creative, in line with bloom’s taxonomy. thus the creation of original legal opinions by the students from their interaction with clients, examination of documents and knowledge of the law is the most tangible benefit of clinical education. in addition, teachers work in a group comprising of more open-minded people who are well prepared to exercise their profession. this is undoubtedly one of the key pillars that support the successes of the polish legal clinics, particularly with regard to the implementation of educational outcomes. thus polish legal clinics are good places to help students understand the relationship between theory and practice,[footnoteref:65] as, stated in the well-known arabic proverb, “a man who learns and learns, yet fails to apply the knowledge that has been learnt, is like a farmer who sows and sows, yet fails to harvest crops from a field.” therefore, legal clinics are places where the change to the polish legal education culture can originate. [65: grimes, richard. "learning law by doing law in the uk." international journal of clinical legal education 1 (2014): 54-57.] iv. methodology of clinical legal education – the future of polish higher education all educational methods, used when working with a group, shall be adjusted to the needs and abilities of the learners, as well as focused on the outcome of this specific interaction between the lecturers and the learners. only ensuring that the academic courses are based on such model of thinking about the courses with the students allows teaching and building relationships in an effective manner, making a good cooperation throughout an academic year possible. the cooperation developed with the students is extremely important, in particular in clinical education, as this relationship directly impacts the fulfilment and implementation of the clinical education standards,[footnoteref:66] which apply to all university legal clinics, forming part of the ulcf’s network.[footnoteref:67] [66: i hereby refer to the extended standard, which relates to ensuring by a legal clinic of the supervision of the didactic staff over the students (standard no. 2 no. 9/2014 of the resolution of the university legal clinics foundation dated 08 march 2014, http://www.fupp.org.pl/kliniki-prawa/standardy (last cited 18/05/2017).] [67: please read more on the activities of this foundation: http:// www.fupp.org.pl (last cited 18/05/2017).] the clinical courses, due to a smaller number of students in the groups and a closer working relationship between the lecturers and the students (which is necessary for working on documents for clients or for workshops during which each of group member should have emotional comfort to present their opinion) could serve as a model for all university courses.[footnoteref:68] in poland the courses at higher educational institutions may adopt a form of, inter alia: lectures, workshops, seminars or conservatories, all of which have one objective: to transfer knowledge. yet in regards to clinical courses, an additional objective lies in transferring also practical abilities, necessary in the lawyers’ future professional work[footnoteref:69]. [68: one can indicate e.g.: m. szeroczyńska, i. mulak, jak uczyć prawników dobrej komunikacji z klientem, warsaw 2015; ł. bojarski, b. namysłowska-gabrysiak, symulacja rozpraw sądowych jako metoda edukacyjna. materiały do przygotowania i przeprowadzenia symulacji, warsaw 2008. ] [69: see more e.g.: f. zoll, jaka szkoła prawa, warsaw 2004, and the whole charter by: l. wortham, c. klein, ł. bojarski in: the legal clinic. the idea, organization, methodology, warsaw 2005. the book can be find here: http://www.fupp.org.pl/down/legal_clinic.pdf. (last cited ?).] moreover, sensitising to the needs of people threatened by social exclusion also remains an essential element of implementation of the clinical program.[footnoteref:70] the courses which may have the aforesaid educational effects may adopt a form of simulations, workshops or oxford-style debates. the model of clinical courses is extremely valuable for the purposes of preparing all courses with a group and should be used as an great example of how to work and teach, using methods which involve all group members and allow to memorise by doing, which is better than only by listening. it is encouraging that within the judge traineeship programs the emphasis has been put on active forms of work with the group, in didactic work with future judges and prosecutors.[footnoteref:71] the methodology of education at such types of traineeship envisages case study methods, the simulation of proceedings and main courses (which are intended to be run using the interactive method and implemented in a small group).[footnoteref:72] [70: p. kubiak, o empatii i wypaleniu w pracy studenta kliniki prawa – czyli jak pomagać i się nie przejmować, in: klinika no. 18(22)2015, p. 9 et seq., as well as a. świderek: metodyka zajęć street law, znaczenie dla społeczeństwa obywatelskiego i dobre praktyki, in : klinika no. 13 (17) 2012, p. 3 et seq. ] [71: see f. zoll,. wprowadzenie do programu aplikacji ogólnej oraz aplikacji sędziowskiej i prokuratorskiej, https://www.kssip.gov.pl/aplikacje/o-aplikacjach/metodyki-nauczania (last cited 18/05/2017).] [72: ibid.] currently, the works on the reform of the act dedicated to higher education are pending in poland. they are performed by the ministry of science and higher education. in the ministry’s view: “an in-depth revision is required for the system of financing the universities, as well as the manner of managing the universities and the higher educational institutions. it is necessary to internationalise the education, intensify the cooperation between the science and the business, create new paths of academic and didactic career and adjust the number of students for particular fields of study to real needs of the labour market[footnoteref:73].” [73: for more information please see, http://www.nauka.gov.pl/strategia-gowina/ (last cited 18/05/2017).] the centre of each reform and the main objective shall always be fulfilling the students’ needs and transferring the necessary knowledge to them in the course of higher education studies. the experience of these polish clinical teachers may be used for the purposes of contemplated higher education reforms in poland as regards, inter alia, the methodology of working with students. only the complete preparation and open-mindedness to active methods, as well as new technologies and the modern attitude towards a student-lecturer relationship and the role of a lecturer himself, will allow the full implementation of the reccomendations of the programmes of higher education institutions and enable them to educate in a responsible manner in the future. while projecting the changes to the higher education sphere, also the technological innovations shall be implemented during the work with the students. it is particularly important with respect to the implementation of law-related courses due to the increasing computerisation of the judicial system.[footnoteref:74] a student has to be prepared to work individually with the courts’ computerised system and shall be able to use adequate it platforms. [74: regarding the computerization of the judicial system, see further: k. flaga-gieruszyńska, j. gołaczyński, d. szostek, informatyzacja postępowania cywilnego, warsaw 2016; r. cisek, e-protokół i inne „nowinki” informatyzacji sądownictwa, czyli po co to komu? in: kwartalnik naukowy prawo mediów elektronicznych no. 3/2011 p. 5 et seq., k. j. furman (kowalska), przygotowanie do wykonywania zawodu prawnika w świecie zinformatyzowanego wymiaru sprawiedliwości – rozważania na tle działalności europejskich klinik prawa , in: prawo mediów elektronicznych, 2015.] courses in smaller groups undoubtedly facilitate the transfer of knowledge (with good impact on activating[footnoteref:75]). they also allow the implementation of the standards of the university legal clinics, for years being undertaken on the basis of the model of a small group – active methods – and substantive support of a mentor. [75: b. niesporek-szamburska, metody i formy pracy, online: http://www.fil.us.edu.pl/dok/doktoranckie/dokument3.pdf (last cited 15/12/2015).] this method of conducting the courses is increasingly being used also for the implementation of other academic courses (traditionally more non-interactive) and allows the students to have an opportunity of participating in the attractive activities outside of the legal clinic. the methodology of clinical education shall constitute the inspiration for planned courses at higher education institutions. of course, the implementation of its certain achievements, e.g. teaching through the mock court trials or conducting workshops with a group of students, requires not only a qualified lecturer, but also an adequate architectural and technical background (the size of an auditorium, the desks and chairs layout are of importance). these elements shall be taken into account when planning changes of and introducing new classes to the timetable of academic courses of a given university. undoubtedly, the demand for such backup will generate the change of the way of thinking about the academic sphere. it is crucial to ensure that academic teachers are able to constantly enhance competences in regards to pedagogy, group work and public appearances. persons willing to practise in this profession shall have completed courses in this respect. it would be desirable to introduce such courses as early as during the doctoral studies. the needs as regards the enhancement of teachers' competences are met by one of the projects of the ministry of science and higher education, aimed at the establishment of models of teachers' education,[footnoteref:76] the main objectives of which are: [76: for more information please see, http://www.nauka.gov.pl/projekty-i-inicjatywy/opracowanie-modelowych-programow-ksztalcenia-nauczycieli-w-ramach-dzialania-3-1-kompetencje-w-szkolnictwie-wyzszym.html (last cited 18/05/2017).] “preparing a detailed comparative analysis regarding the systems of teachers' education in selected european countries and recommendations as regards the changes to the system of teachers' education in poland, and establishing models of teachers' education at the higher education institutions.”[footnoteref:77] [77: ibid. ] such high expectations shall be met by the teachers exercising their profession at all educational levels, including the academic stage[footnoteref:78]. [78: in the literature, it is pointed out that training is an inseparable element of teacher's professional development. see: g. kosiba, doskonalenie zawodowe nauczycieli – kategorie, kompetencje, praktyka, in: forum oświatowe , vol 24, no 2(47) (2012), the short abstarct avalaible on: http://forumoswiatowe.pl/index.php/czasopismo/article/view/17/30 (last cited: 14.07.2018), as well as: podnoszenie kompetencji nauczycieli kształcenia zawodowego we współpracy z przedsiębiorstwami, report by: instytut nauk społeczno-ekonomicznych sp. z o.o., s. 25 and a. jastrzębska, kilka uwag o podnoszeniu kwalifikacji zawodowych nauczycieli, czyli o zawodowym dojrzewaniu, on: http://edurada.pl/artykuly/kilka-uwag-o-podnoszeniu-kwalifikacji-zawodowych-nauczycieli-czyli-o-zawodowym-dojrzewaniu (last cited: 14.07.2018). ] conclusions a progress in diversity of legal professions is currently being observed in poland. this can be seen, inter alia, in the possibility of employing the lawyers with three years of experience in providing free-of-charge legal advice in free-of-charge legal assistance points, which results in the fact that the students, acting in the clinics since the second year of their studies, are granted the right to practice the profession of a legal adviser instantly following graduation. such a dimension of the progressive deregulation of legal professions means that the legislator has confidence in the quality of legal assistance provided at polish legal clinics, which use and develop modern education methods and new technical solutions, making it possible to achieve outstanding learning outcomes. it may be concluded that clinical legal education has proved to be a good educational method because lawyers educated in legal clinics haven’t many barriers or issues with finding a job, and currently constitutes an answer to the needs of a widely understood market of legal services in poland, in both the fee-based and free-of-charge sectors.[footnoteref:79] [79: k. mamak, w. górowski, absolwenci studenckich poradni prawnych cenieni na rynku pracy, 2017. http://karne24.com/dr-gorowski-absolwenci-studenckich-poradni-prawnych-cenieni-rynku-pracy/ (last cited 03/01/2018).] 89 editorial spring is here at last! elaine hall northumbria university, uk elaine.hall@northumbria.ac.uk spring brings with it this year a blossoming of clinical ideas, linking across editions, continents and jurisdictions. continuing the conversation about health law started by leslie wolf and colleagues in the last edition, elizabeth curran, isobel ryder and caroline strevens provide an insight into the important collaboration between the study of health and law in a pilot interdisciplinary student clinic. they explore the potential for this kind of pedagogic innovation to challenge stereotypes and foster more holistic practices. from australia, jacqueline weinberg gives insight into the use of alternative dispute resolution in clinic as a pedagogy that helps students to understand the role of litigation and adversarial techniques in a lawyer’s arsenal, as well as providing an additional set of skills, knowledge and dispositions in negotiation and mediation. continuing our discussion of mediation, in his ‘proposal for an italian family mediation clinic’, andrea gallinucci-martinez argues the case for more clinic based learning for law students globally, and specifically the introduction of a family mediation clinic at libera università maria ss. assunta (“lumsa”) in rome. he explores the potential for clinical legal education to fulfil commitments to social justice through engagement with the community and the learning opportunities this presents for students. francina cantatore contributes an important study into the development of professional skills during pro-bono student work. she urges law deans to create better infrastructure to support pro-bono legal clinics for the benefit of their students. one potential model for this is explored by louise hewitt in her practice report, where she describes the creation of employer/employee environments in innocence projects in london which provide student ‘employees’ with an understanding of the real life application of law through pedagogy which combines work based and experiential learning. in our from the field section, pat heather feast presents us with an argument for the incorporation of work based models of appraisal as effective methods for the assessment of students in clinical legal education using a case study from the university of portsmouth. these methods motivate students through a process of long term and regular feedback which is both critical and supportive. in our second from the field piece, cecilia blengino provides a rich account of the synergies that support clinical work in prisons, based around the experiences of the innovative clinic at the university of turin. turin will be hosting the upcoming 6th conference of the european network for clinical legal education (encle), entitled “clinical legal education: innovating legal education in europe.”, on 20th and 21st september 2018 in cooperation with the department of law of the university of turin (unito) and the international university college of turin (iuc). the call for papers is now open! while you are planning your clinical travels, another reminder of the next ijcle conference hosted by monash university in melbourne, australia on 28th-30th november 2018. the theme of the conference is ‘adding value – how clinics contribute to communities, students and the legal profession’ follow this link for more details. it promises to be an excellent conference with the added bonus of the option to attend/submit a paper to the international legal ethics conference (6-8th december) following shortly thereafter. 1 from the field from ‘paradise’ to pragmatism – reflections on a visit to york law school from the perspective of a large, traditional, continental law school michal urban[footnoteref:2], charles university, czech republic [2: judr. mgr. michal urban, ph.d. (urban@prf.cuni.cz) is a senior lecturer at charles university in prague, faculty of law, czech republic. he is in charge of the street law programme at the faculty of law and participates in other clinics (simulations, externships).] york law school benefited from a privilege of being established only ten years ago. although universities and law schools in particular cherish their long history, it gave york a chance to design their curriculum and pedagogy from scratch and establish a teaching team committed to that. for various reasons[footnoteref:3] they decided to introduce an intellectually robust yet practical, skills oriented, curriculum based on the application of theory to practice using problem-based learning (“pbl”). doubtful as it may have then appeared, ten years of experience have brought student satisfaction, respect from other law schools, some of which are even trying to learn something from york, and certainly good ratings.[footnoteref:4] [3: the problem-based learning approach had already been used at york medical school and as a newly designed law school, york probably wanted to distinguish itself on the law school market. last, but not least they considered this way of law teaching a good (if not best) way to teach law. ] [4: york law school is a highly rated law school. see for example rankings at https://www.thecompleteuniversityguide.co.uk/league-tables/rankings?s=law or https://www.theguardian.com/education/ng-interactive/2017/may/16/university-guide-2018-league-table-for-law.] following recommendations from various clinicians, i decided i needed to see york teaching strategies with my own eyes. the reality might, after all, differ from university pr including its website praising the school as an ‘inspirational place for both study and research… with innovative teaching and forward thinking approach that keeps us at the forefront of legal education.’[footnoteref:5] i must confess it did not. for a week, i found myself in the middle of a well-oiled educational machine, following elaborate curriculum consisting of a very large number of given scenarios, case studies, analytical exercises and clear and articulated lesson plans put together in a thoughtful way to guide students from first shy steps towards leaving in three years as lawyers, at least partially, equipped for their future careers. now, every law school, at least in theory, shares this goal and many law schools may achieve this. it was however the practical curriculum at york, more than previous visits in the uk, us and elsewhere, that made me seriously reflect on the way we educate lawyers in continental europe. [5: see https://www.york.ac.uk/law/.] york, at least to my knowledge, chose pbl as the main teaching method because it had already been successfully used at york medical school. as a newly designed law school, york probably wanted to distinguish itself on the law school market. last, but not least they considered this way of law teaching a good way to teach law. problem-based learning is a student-centred approach to teaching that makes students learn through the experience of solving open-ended problems introduced by teachers (usually called tutors). these problems might be real or fictitious and students in small groups (usually 6-12) analyse them, identify legal issues and agree on what more they need to know and how they will obtain information they lack. the focus is not so much on solving the problem, but on proper analysis of the problem. once the group identifies what needs to be found out, each student individually does the research needed and the group meets again to discuss what they have found out and how it helps them to understand the problem. teachers do not lecture, but just briefly introduce the problem and then leave as much activity as possible on students. only when they struggle too much, omit important legal issues or fail to find key literature or cases, teachers step in to gently navigate the group. apart from searching for the solution of the presented problems, this type of learning aims at cultivating students’ skills and attitudes. initially used in medical schools, problem-based learning is now being used for teaching other disciplines, including law.[footnoteref:6] [6: see grimes, r. (2014). delivering legal education through an integrated problem-based learning model – the nuts and bolts. international journal of clinical legal education. vol 21, no 2, [online] available at: http://www.northumbriajournals.co.uk/index.php/ijcle/article/view/388 or hedlund, r. (2018). a case study from york. in grimes, r. (2018). re-thinking legal education under the civil and common law: a road map for constructive change. new york, ny: routledge, pp. 47-59. ] pbl, as well as other alternative teaching methods, naturally has its limits: teachers need to be well trained (especially to hold themselves back and let students take their time to solve given scenarios, and to only subtly guide students towards expected goals when they are lost) and students need to be far more active than students traditionally are. to make sure students understand how important their own activity for the whole learning process is, all york students are interviewed before being accepted, well-informed about the specifics and demands of york law school and welcomed in a special culture where the majority of students adopt rather active roles. each student also has their personal tutor from members of the school staff. of course, york benefits from being an alternative to more traditional british law schools and undoubtedly attracts students more inclined to participatory learning. pbl as well as other alternative teaching methods might not suit everybody, but the same surely applies to traditional teaching methods. many lecture halls in classical law schools are far from being overcrowded since a number of students decide to acquire information by other means. coming from an institution with its roots in the middle ages (1348), teaching masses of students through lectures (more than 600 in each year) and seminars for groups of up to 40 students, a week in york made me wonder whether a traditional continental law school can implement any of the successful practices of the york curriculum. the first encounter made me feel that unless i became a minister of education or established a completely new law school there is no way to transform york experience into our everyday practice of law teaching. day after day at york, however, i was recovering from the first impression and started finding ways to imagine the transfer of york’s good practice to the setting of the continental law school. in this paper, i attempt to summarize the main points of inspiration that could relatively easily improve my work and that of my colleagues in the more traditional law schools in continental europe and possibly elsewhere. they are not unique to pbl which makes them even more suitable for using at other law schools, even though they do not fully implement pbl. small groups are key to effective learning. lectures to several hundreds of students, and seminars for 30 – 40 participants, are still an unfortunate norm in number of traditional law schools. the experience of teachers in york and elsewhere suggest that everything works better in small groups.[footnoteref:7] they are the foundation for learning at york law school. students know each other and their teachers, who likewise know the students and are able to observe and support their progress. the groups of around 10-12 students with the same group membership throughout the academic year meet regularly (once or twice a week) creating a secure, even intimate, learning atmosphere which promotes trust, cooperation and responsibility within the groups, founding stones of all effective learning. if those of us teaching at large continental law schools cannot influence the number of students enrolled in our compulsory subjects, we can certainly limit student numbers on optional courses, accepting only 10-20 students. in larger compulsory seminar groups, activities such as fishbowl or role-play[footnoteref:8] can be performed by 10-15 students with the rest of the class observing and reflecting on the performance. this is an option available for any subject. [7: as professor warren binford summarizes it, “over 700 studies have confirmed what many of us know based on our own experience as students: lectures are among the least effective methods for achieving almost every educational goal ever identified. in fact, for some education goals, lectures have been identified as the least effective learning method. others suggest that they may be worse than no teaching at all since attending a lecture leads to less studying afterward.” binford, w. (2015). how to be the world's best law professor. journal of legal education, vol 64 no 4, pp. 542-561. see also attard, a., di iorio, e., geven, k., & santa, r. (2010). student-centred learning: toolkit for students, staff and higher education institutions. brussels: european students union; marquardt, m. (2007). action learning: resolving real problems in real time in silberman, m. (2007). the handbook of experiential learning. san francisco: pfeiffer, p. 94-110; tiberius, r. g. (2013). small group teaching: a trouble-shooting guide. routledge; or springer, l., stanne, m. e., & donovan, s. s. (1999). effects of small-group learning on undergraduates in science, mathematics, engineering, and technology: a meta-analysis. review of educational research, vol 69 no 1, pp. 21-51.] [8: see http://www.teachingmethodsonline.com/etm/m75/ and silberman, m. (1996). active learning: 101 strategies to teach any subject. boston: allyn and bacon, 1996.] another huge advantage of small groups is that it allows and sometimes even supports students to assume active roles, a function traditionally belonging to the teacher. when students are given clear instructions, materials and outcomes (or indeed encouragement to find their own learning goals), they are able to assume much of the work that is traditionally expected from the teacher – bringing facts, presenting cases, chairing discussions and making notes of the most important points said. teachers may turn into active observers, helpers, commentators and tutors asking students important questions and reminding them of what they might be missing in their discussions or research, and still be doing their teaching job correctly. in fact, in some aspects even far more effectively. it is, after all, an educational myth to believe that the more words a teacher says during the class, the better s/he is and the more students understand.[footnoteref:9] often, it works the other way round: a good teacher says only little and lets the students do the work instead. “talk less, teach more” is an insightful slogan law society of ireland has put on their t-shirts to remind themselves that talkative teachers tend not to be the best teachers. [9: many authors stress the key importance of student’s activity for efficient learning. it is an integral part of constructivism, a theory of learning stressing that students must construct and reconstruct knowledge in order to learn effectively, as well as all of the student-centred learning strategies, experiential education, action learning, participatory learning (and participatory teaching methods) and many other alternative teaching and learning approaches. see attard, a., di iorio, e., geven, k., & santa, r. (2010). student-centred learning: toolkit for students, staff and higher education institutions. brussels: european students union; lea, s., stephenson, d. and troy y. (2003). higher education students’ attitudes to student-centred learning: beyond ‘educational bulimia’. studies in higher education, vol 28 no 3, pp. 321–334; marquardt, m. (2007). action learning: resolving real problems in real time in silberman, m. (2007). the handbook of experiential learning. san francisco: pfeiffer, p. 94-110; mccabe, a., o'connor, u. (2014). student-centred learning: the role and responsibility of the lecturer, teaching in higher education, vol 19 no 4, 350-359; stuckey, r. t. (2007). best practices for legal education: a vision and a road map. clinical legal education association, pp. 119-132; or silberman, m. l. (ed.). (2007). the handbook of experiential learning. john wiley & sons. for the importance of attention for memory retention, see also shaw, j. (2016). the memory illusion: remembering, forgetting, and the science of false memory. random house. ] another good way to keep teachers’ talking down and student participation up is to change traditional room seating – more often than not comprising of rows of desks facing the lectern. on many occasions i have considered moving the classroom furniture at my law school, breaking rows of desks into more discussion-evoking seating, where the teacher is not the centre of attention all of the time. it takes some time and effort to do so – not to mention noise! having been to a law school where alternative seating is the norm, i now promise myself not to hesitate in the future anymore and will ask my students to change the room seating on every occasion if this complements the method and subject for study at that particular session. over the time, with the help of like-minded colleagues we might even persuade the law school administeration to change the default room seating in couple of classroom. most law teachers realize that no matter how hard they try, their students need to work in between the classes in order to progress their understanding of law. however, many students do not do their homework and are not well prepared, which can adversely affect following classes. what are the ways around it? the york experience advises us not to give up and instead of working less with the homework, so that our lessons are independent of how well the students prepared, but to make homework far more central part of the following lesson. this can be done by devoting part of the class to answering questions from self-study, identifying important legal issues and linking it to previously acquired legal knowledge. in this way, students will learn that preparation is key and an integral part of study. working intensively with homework helps to bridge lessons and support the idea that learning is a continuing process, which cannot be fully satisfied during classes or in the exams period. for reasons given above, it is clearly easier to persuade your students to prepare for lesson in small-groups environment, but the above described principles apply equally to larger seminars. bigger groups support anonymity and reduce chance to be called upon, but the choice whether and to what extent to work with homework is still up to the teacher to decide.[footnoteref:10] another york experience advises teachers to pass, at least for part of the lesson, the role of a chair to a student. when students take turns in chairing discussion about what they have learned when doing their homework, peer pressure is on teachers’ side and motivates the students to prepare. [10: arguably one way not to encourage your students to prepare is to use a police-like approach heavily built around powerful external sanctions. notoriously, some us law schools operated around this model, which is captured e.g. in the the paper chase movie from 1973. ] another york way to motivate students to work in between classes is to introduce reflective journals. following the reflective learning principles, journals help students to see their learning as a process in which they are continually required to look back on their and the groups experiences and actions in order to improve their own and everyone else’s knowledge, skills and attitudes and how they might now approach new tasks or their learning more generally. such journals do not have to be formally assessed, or at least not unless the curriculum calls for that at certain points. they represent a far freer form of capturing learning (unlike e.g. essays), are personal to each student (unlike reading cases or articles) and represent a useful tool for tracking learning progress. journals might be submitted to teachers for their comments, but given time constrains in bigger classes, they may also be submitted only at key points for the award of relevant credits. alternatively, students might be obliged to submit them two or three time every semester knowing that the teacher will send their comments only to e.g. one student out of four. another option is to ask graduates of the particular subject to help with providing feedback to new students, or ask a fellow student to read the work of their colleagues. it should not be difficult to provide for confidentiality and their feedback, enriched with their recent experience of the same course, might be very useful to new students. on top of that, credits need not to be given based on “correctness” of the journals and information they contain, but predominantly on the fact that students were reflecting their learning experience and able to identify what they need to do better (and why) in the future.[footnoteref:11] [11: for more information on assessment, see gibbons, j. assessment in legal education: qualification or quantification? in grimes, r. (2018). re-thinking legal education under the civil and common law: a road map for constructive change. new york, ny: routledge, pp. 135-142 or grimes, r., gibbons, j. (2016) assessing experiential learning – us, them and the others. international journal of clinical legal education. vol 23, no 1, [online] available at: http://www.northumbriajournals.co.uk/index.php/ijcle/article/view/492.] an understandable fear of a traditional teacher is that students will not keep their journals. after all, many fail to do even their seminar homework, which tend to be less frequent. to prevent that, it helps to introduce the journals at the very beginning of the course and make sure students really understand all benefits of keeping them – ideally students formulate the benefits themselves in a role play or other interactive activity. one of the most important points is to be aware that journals help students to track their progress. some pressure is taken away when students learn that the form and language of the journal in mostly up to them. after all, some students in fact enjoy writing, especially when they are not held back by formal restrictions, which are rather typical for legal documents. example journals of students from previous courses might serve as a motivation too. additionally, the existence of reflective journals gives lessons a natural ending point: each student (or only some students in larger classes) formulates what they take from today’s meeting and are asked to note it down and expand on this in their journals. the necessity to formulate in what way, if any, today’s lesson has developed their knowledge, skills or understanding of law is a simple, but surprisingly powerful learning tool. for the teacher this can be rewarding too, because you leave the class with numerous examples of what your students have actually learned and clues to what might be done differently and better in future classes. ending your lessons in this way naturally helps your students to keep their journals, because they leave the session with the core of their entry ready. since all teachers fight with time constraints, it is very easy to skip the reflective stage of each lesson, especially when teaching university students who we tend to believe must know how to reflect on their learning progress. the truth is that they generally don’t and if they do, they might become far better at it, with the help of their teachers. even if you don’t want your students to keep their journals (yet), your lessons can still end with the “what have you learned today?” question. when walking through corridors of traditional law schools and listening, unless there is a break, you will mostly hear one dominant voice through each door. the voice belongs to the teacher. alternative schools such as the york one attempt to include where possible in every class an experiential element that makes students get on their feet (literally or metaphorically), engage in small group discussion, play out a scenario that helps them to experience principles and to apply that knowledge and to revisit the subject time and time again to reinforce and develop the learning. put simply: instead of talking about things, let the students experience them through carefully designed case studies.[footnoteref:12] students’ engagement logically increases their motivation and coupled with reflection through journals and discussion enhances the learning process. a visitor to this type of a law school hears, to revisit our previous example once more, a mix of voices, most of which are rather young. [12: they might demonstrate different philosophical approaches to the law, let students simulate alternative dispute resolution or results of cooperation and non-cooperation of both parties to a contract.] the overall principle that runs through personal engagement and experience and the examples of best practice described above is connected to the issue of responsibility. who bears larger amount of responsibility for the process of learning? the teacher or the students? at york there is no doubt that it is up to the students to be engaged during small group seminars, to play active part in simulations, role-play and various games, to do their homework and be ready to discuss its results in the following class, to track their learning progress in reflection journals and to identify and fulfil their learning outcomes. to put it simply – to assume responsibility for their own studies. as challenging as this sounds, it can be equally difficult for teachers to let go of their typical all-powerful position. traditionally, teachers were responsible for everything – from classroom equipment, providing a safe learning environment and having sufficient knowledge to design, impart and control the substance of students’ learning and progress. alternative approaches ascribe teachers an equally crucial and active, but less obviously leading position as supporters, mentors and helpers. strange as it may sound at first, in combination with students’ responsibility for their own learning progress, it appears to be more effective role than that of the clear lesson leader.[footnoteref:13] [13: see bujan, j. (1996). increasing students' responsibility for their own learning. available at https://eric.ed.gov/?id=ed400072; marquardt, m. (2007). action learning: resolving real problems in real time in silberman, m. (2007). the handbook of experiential learning. san francisco: pfeiffer, p. 94-110; beard, c., & wilson, j. p. (2013). experiential learning: a handbook for education, training and coaching. kogan page publishers, chapter coaching and facilitation, good practice and ethics, pp. 53-90.] all of the mentioned elements of york approach to law teaching can be, at least partially, implemented into a large continental law school practice. what i still find hard to imagine is to follow york decision not to teach traditional subjects (civil law, land law, criminal law, tax law), but to arrange case studies and scenarios in such a way that students simultaneously deal with matter from several legal disciplines. it certainly prepares students better for the practice, in which your boss typically asks you to “solve the legal issue”, not to “look at it from labour law perspective only”. to implement this approach, however, means to dissolve traditional division of law into subjects and branches and expect law teachers to teach several subjects. that would be nothing less than a revolution, which for its success needs years of preparation and a persuasive dean able to gain general acceptance of the teachers. before it happens (if it ever happens at all), every teacher willing to improve their teaching may enrich their classes with tips described earlier. luckily, they need neither approval nor cooperation of their colleagues for that. even if the law school holds on to its more traditional curriculum and pedagogy, individual teachers can of course decide to apply the problem-based learning method in their seminar, especially in voluntary courses where it is up to the teacher to decide course outcomes and number of participants.[footnoteref:14] their students will, i believe, benefit from their decision, but the consequences of this change will understandably be only limited, since many other school classes will continue to be delivered in a traditional way. it is understandably tempting to think that the only way to transfer what pbl teaches is to introduce the full version of it at your law school, ideally in more subjects at once. even though i would like to see this rapid change at many law schools, in this text i argue for a pragmatic approach: if it is for various reasons not possible to transplant the full pbl version, let’s introduce at least its elements described in this text. they have been chosen in the way that even traditional large law schools can implement them rather easily and promptly, especially in elective courses. what pbl does greatly is that it encourages student participation and responsibility for their learning outcomes. the full version, of course, does it better than individual elements described in this text, but even they have a potential to spark student engagement and responsibility. as teachers employing these elements would confirm, even these relatively minor changes bring significant changes. [14: it may be more difficult in compulsory subjects as outcomes are defined by the head of the department (e.g. civil law), guarantee of the course (mostly a distinguished professor) or agreement of all colleagues teaching the particular subject. additionally, students will be assessed based on these outcomes, not alternative approaches tried out in seminars.] should a group of devoted teachers or even the school management decide to implement problem-based method in its full version, it makes sense to apply it to students of one particular module.[footnoteref:15] a practical skills module, containing subjects aiming at developing students’ presentation, interviewing and argumentative skills, appears to be a natural start for such a change. the good practice might then start spreading, or the module might remain unique in the teaching methods it applies. [15: by a module i mean a group of subjects that share same area of law (e.g. civil or criminal law) or outcomes (subjects aiming at developing students lawyering skills).] all of the described principles, techniques and pieces of good practice naturally work best when applied in a complementary way. however, it is true in ecology as well as pedagogy that every little counts. even a small enrichment of a standard large continental law school curriculum and pedagogy will deliver its results over time. neither teachers nor curricula typically change overnight. should one piece of my york experience enrich the teaching style of a reader, my text by all means fulfilled its goal. 238 innovations in an australian clinical legal education program: students making a difference in generating positive change liz curran “despite the healthy respect of precedent, which is an essential part of the common law tradition, the law is capable of providing an important impetus for social and economic change. not only is reform of the law often essential to overcome obvious inequalities and injustices in society, but the reforms can markedly influence community attitudes and behaviour.” law and poverty in australia, agps, canberra, 1975, page 2 “the law, like any other human creation, has defects, some of them serious. it is in constant need of improvement.”1 the chief justice of australia, the honourable murray gleeson ac introduction this paper will examine why in my view student lawyers who one day soon will be fully-fledged practitioners have a vital role in law reform. it will firstly draw on some of the commentary on the topic and then discuss the program i run at the west heidelberg community legal service (the legal service) which seeks to actively encourage students to view law reform as their responsibility as lawyers in the community. i should state that the approach of the law reform projects of the clinic i will discuss are still a “work in progress” as we are constantly refining and developing the process to heighten its effectiveness on those who make the laws and administer the laws which impact upon the community. 162 journal of clinical legal education december 2004 1 am gleeson, boyer lectures 2000: the rule of law and the constitution, abc books sydney 200 page 4 in 1978 la trobe university in australia commenced its clinical legal education program at the west heidelberg community legal service initially with legal studies students. since 1992 law students under supervision have provided legal services to the local community in an educational and scholarly context. the current clinical legal education (cle) program is for students in their final years of law. the placement is in one of the poorest suburbs in victoria, a state of australia and so, as with the original models in the united states for clinical programmes2 the aim is to provide legal services to low income people but also to enhance lawyering skills and understandings. as well as students interviewing, advising, preparing cases for court and running client cases under supervision in a human rights law context, in recent times, a new component has been introduced to the clinic. this involves the students in completing a law reform submission which emerges from case law at the clinic. the students, in conjunction with the legal service, identify emerging problematic patterns in their work and then having conducted research and written a report they suggest recommendations to improve the legal system and lessen negative impacts of the law’s operation on the community. the role of students in law reform activities is not new. scales a clinical program at murdoch university had students assist with a submission on behalf of the united nations in relation to human rights and housing in australia. the students looked at issues around the provision of accommodation for women and children in situations of domestic violence. scales in the murdoch law school newsletter states that “the involvement of clinic students in projects such as this is an important part of a clinical program. it improves students legal and problem solving skills, aims to challenge and broaden the students’ sense of the role of lawyers and the law within society.” the legal service/la trobe “law reform project” is a structured course component and aims to be innovative and challenging for students. it also deliberately emulates the new culture of many larger law firms which require team project work and collaboration rather than individual endeavours which the usual exam or essay assessment of a university can involve. this new course component enhances the effective communication by students with persons who hold positions of power, with government departments, people engaged in direct service delivery in a number of different fields and with other lawyers. 1. theoretical background a number of academics, governmental and statutory enquiries and some common law cases have highlighted the importance of a critical appreciation of the operations of the law for students and the ethical role of legal professionals in enhancing the operation of the law and law reform. universities can have a role in preparing students for this in later life. richard white3 states that the functions of the legal system and legal services are threefold: 1. to resolve individualized conflicts 2. to individualise group conflicts innovations in an australian clinical legal education program: students making a difference in generating positive change 163 2 edwin rekosh, public law initiative, the journal of clinical legal education, march 2001 3 social needs and legal action, law in society series 1973, richard white, editors c m campbell, w g carson and p n p wiles, martine robinson, united kingdom, page 16 3. to strengthen the perceived identity between the individual and society as seen as a unitary whole. he comments that an aspect of the latter is reforms in the legal system that reinforce the concept of equality before the law, to overcome any tendency towards alienation and to encourage people to have constructive perceptions of the system. he also states that the main functions of legal services research might be formulated as being: to identify those areas in which rights are not at present being enforced, to propose means by which they can be enforced more effectively and to point to further areas in which the creation of a structure of enforceable rights might be desirable.4 philip lewis in the same collection of commentaries argues that the value of people working and researching in legal services is that “the proposals they make for reform lie in encouraging the further attainment of equality before the law.”5 similarly, brian opeskin a commissioner of the australian law reform commission, states that the need for law reform arises for many reasons noting that some legislation was written a long time ago and can no longer meet the demands placed on them by a growing population in an increasingly globalised economy. he adds, “developments in technology may generate problems that human society has not previously encountered; social attitudes and values may have changed in ways that need to be reflected in the law; old laws may need to be refreshed to modernise their language and remove obsolete provisions.”6 he also observes that law reform relates not just to statute law but also the common law. the lord chancellor’s advisory committee on legal education and conduct in its review of legal education in 19947 was a review of all stages of education and training in england and wales. the review also considered practical training under supervision. it noted that some “artificial divisions between the “academic” and “vocational” study of law” had emerged. the report concluded that legal education should stress the ethical values upon which the law is based. this includes consideration of the nature and limitations of law and the legal process, the dilemmas faced by individuals, organisations and governments, and the responsibilities placed upon individual lawyers.8 it also noted the “need for adequate resourcing of university law schools if they are to meet the demands made upon them to produce well-qualified entrants to the specifically vocational stage.”9 the committee also stated that students should develop knowledge of relevant aspects of the social sciences, in order to appreciate the law’s social, economic, political, ethical and cultural context. 164 journal of clinical legal education december 2004 4 social needs and legal action, law in society series 1973, richard white, editors c m campbell, w g carson and p n p wiles, martine robinson, united kingdom page 35 5 social needs and legal action, law in society series 1973, philip lewis, editors c m campbell, w g carson and p n p wiles, martine robinson, united kingdom page 37 6 speech by brian opeskin, commissioner, australian law reform commission to melbourne university, jd program guest lecture series, melbourne 4 april 2001 see www.alrc.gov.au/events/speeches/20010404.htm 7 the lord chancellor’s advisory committee on legal education and conduct in its review of legal education in 1994, extracts from consultation paper, june 1994 http:www.law.warwick.ac.uk/ltj/3-3i.html this report is published in the law technology journal: vol 3, no 3 october 1994 8 the lord chancellor’s advisory committee on legal education and conduct in its review of legal education in 1994, extracts from consultation paper, june 1994 http:www.law.warwick.ac.uk/ltj/3-3i.html page 7 9 the lord chancellor’s advisory committee on legal education and conduct in its review of legal education in 1994, extracts from consultation paper, june 1994 http:www.law.warwick.ac.uk/ltj/3-3i.html page 7 in the la trobe clinical programme, students work closely with people from other disciplines as the legal service is based in a community health service. students, in assisting clients may liaise with psychologists, drug and alcohol clinicians, counsellors, doctors and youth workers who work for the health centre. the emphasis is on the role of lawyer delivering a holistic solution for clients. this is a product of the often complex and multi-layered contexts of the clients and so the students in the course do come to see the aspects of the social sciences that the lord chancellor’s advisory committee suggests. this has also meant that the students’ research into their selected law reform projects causes them to examine broader social impacts and contexts affecting their topics. for instance, when students examined the juvenile justice system in victoria in 2002 they had to consider developmental psychology as one of the important contributors to behaviours and in rehabilitative options and purposeful intervention. similarly, students examining drug law reform have examined the availability and access points for young people in counselling and detoxification services and the impacts of this on a defendant’s capacity to meet the terms and conditions of court orders. the international bar association’s standards for the independence of the legal profession10 also see a role for both lawyers and educators of lawyers in the promotion of law reform activities. the international bar association recognises that lawyers have a “vital role” in cooperating with governmental and other institutions in furthering the ends of justice. it states, in clause 3 of the standards, that legal education should be designed to promote knowledge and understanding of the role and the skills required in practising as a lawyer, including awareness of the legal and ethical duties of a lawyer and of the human rights and fundamental freedoms recognised within the given jurisdiction and by international law. in clause 14, they state that lawyers should propose and recommend well considered law reforms in the public interest and inform the public about such matters. in a submission by staff of murdoch university’s scales clinic staff to the australian law reform commission’s review of the federal civil justice system, the role of clinical legal education in shaping attitudes of the profession and promoting its ability to respond to issues of access to justice and the legal system was highlighted. the australian law reform commission (alrc) in its report “managing justice – a review of the federal civil justice system”11 released in 1999 dedicated chapter two to education, training and accountability. this report was a very comprehensive examination of the civil justice system in australia which involved both research and the receipt of many submissions from a variety of bodies including community agencies, legal bodies and universities. the alrc states that “education, training and accountability play a critical role in shaping the legal culture and thus in determining how well the system operates in practice”. they state that it is evident that, “while it is of the utmost importance to get structures right, achieving systemic reform and maintaining high standards of performance rely on the development of a healthy professional culture.”12 this professional culture in my view should be encouraged, fostered and nurtured at law school equipping students to understand the role of the law and the players in the law in the broader operation of the legal system. innovations in an australian clinical legal education program: students making a difference in generating positive change 165 10 the international bar association’s standards for the independence of the legal profession (adopted 1990) 11 see www.austlii.edu.au/au/other/alrc/publications/ reports/89/ch2.html 12 managing justice, alrc, 1999, chapter 2 page 1 the alrc notes that there are a vast number of american law schools which operate clinical programs but that in australia, the much lower level of resources available to law schools has meant that only a handful of law schools run clinical programs.13 in 1992 in the united states there was a review of legal education.14 according to this report known as the “mac crate report” the values of the profession were as follows: 1. the provision of competent representation 2. striving to promote justice, fairness and morality 3. striving to improve the profession, and 4. professional self development. also in canada arising from the canadian bar association’s task force report on civil justice15 the “recommendation 49 committee” concluded that law students should have the opportunity to critically evaluate processes for resolving conflicts in light of the broader public interest in legal rights.16 australia’s law schools are very different to those in the united states although similar to those in canada (for the moment anyway the commonwealth government of australia in its most recent budget has announced greater fee paying and personal autonomy in setting those fees for universities.17) but australia does not have the vast resource base of american law schools18 both public and private which have substantial tuition fees, large endowments and receive significant support from alumni and benefactors. in australia, and as i understand it the united kingdom, clinical legal education courses are primarily part of the undergraduate program and are often combined with another degree. there is a somewhat broader ‘liberal education’ mission than american law schools which have in the last decade become more narrowly oriented towards ‘professional separation’ and skilling . in australia, there is also a unified national system for public universities which is fully accountable to the federal bureaucracy and has periodic reviews and quality assurance processes.19 richard grimes20 has noted that the lord chancellor’s advisory committee on legal education and conduct makes specific reference to the relevance of intellectual and personal skills and the importance of seeing law in its operational context. he states that from his own experience of running a live-client clinic, the learning experience for students represents a qualitative leap from simulated methods. it is deep learning at its best he claims. he notes that the services offered in these clinics are predominantly welfare based. the focus of law reform activities enables students to see broader operational contexts of the legal system itself and to be socially active and responsive when they observe the impact of poverty and exclusion on their clients who must also navigate an often unresponsive and inactive legal system. 166 journal of clinical legal education december 2004 13 managing justice, alrc, 1989, chapter 2 page 4 14 legal education and professional development – an educational continuum (report of the task force on law schools and the profession: narrowing the gap) american bar association, chicago, 1992 (the maccrate report) 15 systems of civil justice task force final report, canadian bar association, toronto, 1996 16 systems of civil justice task force final report, canadian bar association, toronto, 1996, pages 45–46 17 federal budget, 13 may 2003, www.aph.gov.au 18 managing justice, alrc, 1989, chapter 2 page 13 19 managing justice, alrc, 1989, chapter 2 page 13 20 research reports on legal education, number two, legal skills in clinical legal education, web journal of current legal issues in association with blackstone press ltd. in a recently published article by two of my colleagues at la trobe university, mary anne noone and judith dickson21 examine ethical issues and student lawyering. they state “we also accept that as teachers we are role models and we continue to reflect on and communicate with our students what we consider constitutes professional responsibility.” they observe that the legal profession uses the public service ideal as a justification for the privileges of monopoly and self regulation but observe that the challenge is to retain this clear commitment to public service in the midst of pressures on lawyers to do the client’s bidding, corporatisation and competition. g. e dal pont22 also comments on the perception of lawyers as more interested in financial benefit than the interests of their client and the community. he observes that “lawyer bashing” is common and that both the public and governments have contributed to it.23 he cites the dean of yale law school24 as lamenting the fact that the best graduates go the large law firms where time charging, a mercantile attitude and the client who dictates the course of disputes have become common place. the dean concluded that legal institutions had a role in stewarding students to beqeath the profession with the quality and integrity it was once seen to have. dal pont notes that commentators have argued that law be redefined to suit the purposes of large commercial practice25 where professional ethics and fearless legal advice can be seen as threatening. dal pont argues that the professions most valuable asset is its reputation and the confidence it can inspire26 and laments the polls27 which reflect poor professional ethics of lawyers. the challenge as educators is how to best encourage students to think of ethical conduct in the context of justice.28 and as ross puts it, to produce “critical and creative law graduates who are self reliant, self determining, and self motivating individuals who can communicate well and work co-operatively as well as independently”29 dal pont also points out that as a participant in the administration of justice and the legal system, the lawyer must foster respect for law and its administration.30 this duty manifests itself, in many ways. case law states that firstly, although lawyers are not precluded from criticising the law or otherwise not supporting laws as lawyers are well qualified to criticise the law and any restriction on critical assessment of the law could hamper law reform. the court however has stated that lawyers must not do this in a manner that undermines the law or public confidence in it.31 secondly, lawyers must not engage in conduct which may otherwise bring the legal profession into disrepute or which is prejudicial to the administration of justice.32 noone and dickson comment innovations in an australian clinical legal education program: students making a difference in generating positive change 167 21 teaching towards a new professionalism: challenging law students to become ethical lawyers, legal ethics, volume 4, no.2 22 lawyers’ professional responsibility in australia and new zealand, second edition, law book company sydney, 2001 23 lawyers’professional responsibility in australia and new zealand, second edition, law book company sydney, 2001, part one page 8 24 kronman the lost lawyer: failing ideals of the legal profession, harvard university press,1993 25 lawyers’ professional responsibility in australia and new zealand, second edition, law book company sydney, 2001 part one page 8 26 lawyers’professional responsibility in australia and new zealand, second edition, law book company sydney, 2001, part one, page 14 27 morgan poll 2–3 april, 1994 where of 1,212 people australia wide only 30% of respondents rated lawyers as high or very high in ethics and honesty which was 14% lower than the same survey in 1984. 28 teaching towards a new professionalism: challenging law students to become ethical lawyers, legal ethics, volume 4, no.2 page 133 29 i. ross, ethics in law: lawyers responsibility and accountability in australia, 3rd edition, sydney, butterworths, australia, 2000 at page 75 30 re b (1981) 2nswlr 372 at 382, moffitt p 31 ambarde v attorney general for trinidad and tobago (1936) ac 322 at 325, lord atkin 32 victorian barristers practice rules, rule 4 and re milte (1991) 22 alr 740 that “the realities of legal practice, in the community based model of a clinical programme, ensure that issues of public policy, law reform, social and moral questions and the provision of legal services in the public interest will arise, confront students and demand reasoned solutions.”33 legal educators, they observe in the united states in the 1970s, embraced the clinical method for this purpose. it was seen as offering hope in instilling in law students a conception of professional responsibility that went beyond mere knowledge and the application of rules and which involved obligations of service and commitment to justice including law reform.34 the clinical legal education program la trobe at the west heidelberg community legal service in australia we have a federal system of law which means we have national laws and state laws in each of the seven different states and two territories of australia. this gives rise to complexity and in some senses confusion. the programme of law at la trobe university has over the past twenty five years had a strong commitment to access to justice and a commitment to the study of law in context. in fact the latter is the title of the la trobe law school’s journal. my position as a lawyer at the legal service is fully funded by la trobe. this was partly the result of the 1970s national henderson inquiry into poverty that was commissioned by the federal government. la trobe wanted to contribute to the local community after west heidelberg was cited as one of the poorest communities in victoria with minimal access to legal services by the inquiry.35 by the way, a point of trivia is that west heidelberg was the olympic village for the 1956 games in melbourne and after the games was handed over to public housing. the clinical legal education programmes at la trobe are worth double the credit points of other subjects in recognition of the heavy work load and time commitment required from the students. the focus as noone and dickson point out in their paper36 of the clinic is on analysing and reflecting upon what constitutes ethical conduct, not upon skill acquisition. they “come to see legal practice as socially situated and hence ethically complex.”37 168 journal of clinical legal education december 2004 33 teaching towards a new professionalism: challenging law students to become ethical lawyers, legal ethics, volume 4, no.2 page 134 34 see d a blaze, déjà vu all over again: reflections of fifty years of clinical legal education (1997) 64 tennessee law review 939 at 950–954 the programme of law at la trobe has over the past twenty five years had a strong commitment to access to justice and a commitment to the study of law in context. 35 commission of inquiry into poverty (1976) a study of the heidelberg (victoria) community. canberra, agps pages 15–24 and 75–76 36 teaching towards a new professionalism: challenging law students to become ethical lawyers, legal ethics, volume 4, no.2 page 139 37 see a goldsmith and g. powles, lawyers behaving badly: where now in legal education for acting responsibly in australia, in k economides (ed) ethical challenges to legal education and conduct, oxford, hart publishing, 1998 page 119 and teaching towards a new professionalism: challenging law students to become ethical lawyers, legal ethics, volume 4, no.2 page 143 2. how the law reform component emerged i came to the clinical program having spent many years working in law reform on both a state and national level around issues of access to justice, poverty, native title and human rights law through two previous jobs, one as a policy, law reform and media commentator for the federation of community legal centres (victoria) and the other as executive director of a human rights organisation. during the first year and a half in my new job as a clinical supervisor it became apparent that there were a range of client cases which were in need of law reform responses. due to the minimal resources of the legal service it was unable to work on public policy dimensions as much as it felt was required. coincidentally, at the time that this was being discussed at committee of management level at the legal service, the students raised in class and in their afternoon debrief sessions their desire to have more ability to respond not just to their case-work but to the opportunity to raise the broader issues that emerged from their cases. three issues at the time made the students comment that they wished they had more capacity to raise law reform matters and work on them during the course. these were the bankruptcy laws which exposed clients who were compulsive gamblers to hefty criminal convictions, the treatment of asylum seekers where they had a case involving treatment of a somali man in detention and finally a sentencing review they had read which raised a recommendation which in the students’ view would be of detriment to young people. although in the latter two cases the students drafted and sent a letter on the topics to government they lamented the lack of space in their course to undertake further work on issues of law reform. it was through the raising of these convergent concerns of the students and the committee of management that the law reform project was born. in addition, during the semester break i had attended a seminar run on ethics in the legal profession and one of the issues raised was the changing approach of law firms to the bigger cases where there is increasing project work style being undertaken by law firms which meant that they were using solicitors to work in teams rather than the more traditional model of solicitors working in a solitary fashion. the firms commented on how difficult it had been to encourage collaboration and that solicitors initially had tended to work in a more adversarial, competitive manner which was not always in the client’s best interests as it had led to fragmented advice. they commented that perhaps it was the mode of assessment at law schools that reinforced this approach in addition to the competitive nature of legal practice. keeping these issues in mind over the semester break of that year a review of the assessment for the course was undertaken to ascertain whether there was scope to incorporate the student feedback in relation to law reform projects. in early 2001 student assessment involved 45% for placement, 10% for class participation and presentation, 20% for an interview report and 25% for an essay. it was difficult to juggle the assessment too much given the criteria required for subject approval and as any law reform project would involve an increase in effort by the students it was important to make the project worth more. the interview report was reduced to 15% and the final assessment’s worth was increased to make it worth 30%. in addition, the essay was now to be described as a “law reform project”. clearly, the project would involve academic research and critical analysis and so from a university point of view was still a very relevant scholarly endeavour and assessment tool. the students at the clinic attend in groups of four on each day they are on placement. normally, in the morning they interview clients and prepare cases and do follow up work in the afternoon. innovations in an australian clinical legal education program: students making a difference in generating positive change 169 in order to emulate the trend of law firms in doing project work i decided rather than have the student work on individual law reform topics, to establish teams of four (on each day of placement) who could determine and work on the topic together. the committee of management was prepared to reduce the students case work by three clients a week on the basis that in exchange the university students would build up the legal service’s law reform profile. students have a client free afternoon a semester to work on their projects. in addition, students often use the regular afternoon debrief session of the placement to discuss their progress on the project and to examine points of contention and clarification with their team or supervisor. in the first few weeks of placement students are asked to think of their clients and any burning issues that they determine need attention. they are asked to also examine previous work on the possible topics they are considering and any stated gaps in research that they might fill. they come to their afternoon session in the third week with ideas. at the same time the legal service practitioners are asked to also consider topics and with the assistance of “butchers paper” the topics are thrashed out, debated and compromises made on what will be the law reform topic for each team. the students also decide which content they will concentrate on for their 3,000 words each. the students are encouraged to be realistic in what they can achieve in a very limited time frame and to organise their time effectively as they should expect delays in responses to their correspondence. generally, the students will determine whether their law reform project will take the form of a law reform submission to a specific statutory or government enquiry or a report on the topic. they generally divide their project into chapters (making assessment easier) selecting a student to write each chapter including introduction, conclusion, recommendations and in some cases an executive summary. students with a particular skill will often choose to do a chapter which takes advantage of their skills. for instance, commerce students will often select to examine efficiencies and funding, another student who has an undergraduate qualification in psychology looked at this aspect of the legal issue, a sleep scientist was able to examine the effect on prisoner health of fluorescent light and the constant waking that occurred in police cells. students have elected to be marked individually on their chapters and in some cases have asked to be given a mark as a team. the report can then be marked, edited and published by the cle supervisor. students have also developed lists of whom the report can be sent to once it is published. for instance, public bodies, people who have assisted in their research, politicians, media outlets, community organisations and so on. the project has also meant that the experience and networks i had established in my work in the law reform arena are not lost and can be used by the students who then develop their own links in government, the profession and elsewhere. this teaches students not only about legal practice, ethics and legal professionalism but also how to participate in and examine processes of law and guide the students in the acquisition of law reform skills. the new component of the course is designed to demonstrate to students techniques in ensuring that the law can be more responsive and can be improved and it exposes students to the broader role they may wish to play in public life. some criteria for assessment will include: relevance, quality of research, conciseness, team cooperation, ability to act under direction, synthesis of information, analysis and evaluation, depth and quality of arguments presented, balance, usefulness and practicality of recommendations made, expression, clarity and innovation. 170 journal of clinical legal education december 2004 3. how it has been developed in the last year the course has also been redesigned to reflect and complement the students law reform project. in week eleven of the two hour class at the university the topic covered is mechanisms for law reform – different tools and approaches. this involves examining the potential of the law and other mechanisms such as education, cultural and institutional structures in achieving change, retaining good practices and obtaining justice for economically and socially disadvantaged people. it examines the power of analysis, research, law reform activities such as submissions to bodies, advocacy, community action and other methods for achieving social change. in week twelve the topic is evaluating mechanisms for law reform and taking action. students in this session critically evaluate the differing methods and their appropriateness to different situations and also engage in discussion of matters that have emerged in their client work and their law reform topics. we also have a class hypothetical where students are given a fictitious but real life scenario and take on roles of the key players in the operation of our legal system including politicians, civil servants, lawyers, media commentators and lobby groups. students are placed in a situation where they must take on the perspective from the point of view of the roles they are given. the hypothetical contains ethical and legal professional dilemmas, requires knowledge of the international law frameworks they have learned about during the course and a working knowledge of law reform initiatives that they might be able to explore resulting from the scenario they are given. in their last class they can meet with their team to discuss the law reform project, sort out formatting, areas of duplication, recommendations and other issues. 4. how it is done students having selected their topics then have to determine their methodology for their law reform topic. students will often undertake surveys or “person to person” and “over the phone” interviews with people who have some expertise in the area. they do not interview or survey members of the public or clients in view of the difficulties involved in getting timely ethics approval. the la trobe university ethics policy provides scope to enable surveying of people who are experts in the area in which they are being questioned. students will research the topic and as a result of their enquiries draw conclusions and devise and discuss solutions to the problems that they have identified. 5. a case study: self-represented litigants i will select an example of one of the students’ projects to illustrate the process for the project. generally, students come up with the title for the projects in the final stage of drafting the report or submission. the project i will discuss is last year’s second semester, 2002 project which was entitled, “unrepresented litigants: at what cost: a report into the implications of unrepresented litigants in the magistrates court of victoria”. one group of students had undertaken a number of cases in their first few weeks where legal aid had either run out or where the clients were not eligible for legal aid and the solicitor at the legal service was unavailable to represent the client. the students found themselves having to provide innovations in an australian clinical legal education program: students making a difference in generating positive change 171 advice to these clients on how to represent themselves in court. in one civil case the student was convinced that no amount of help would equip the person to represent themselves and wanted to attend an initial conciliation with the client as a support person. the students settled on this topic as a result of their experiences. the first task the students undertook was to conduct a literature review and analysis of the current research and gaps in studies undertaken. they then wrote to the magistrates court and the new federal court magistracy of australia (which does family law and civil matters) advising the court of their intention to do a project, enclosing a set of eight questions they had devised on self represented litigants. they asked if they could interview members of the court. they received a letter from the chief magistrate of the victorian court who encouraged them in their work and offered to facilitate interviews with the various regional courts on their behalf. in addition, the students sent the same questions to the managing director of victoria legal aid (vla) seeking permission to interview duty lawyers at vla and then once approved made times to interview both over the phone and in person the duty lawyers and magistrates and registrars at various regional courts about selfrepresented litigants. the students sat in on court proceedings and observed unrepresented litigants in action using these as case studies in their report without identifying the individuals in any way. finally, students also attended “do it yourself classes” run by legal aid offices. having gathered all of this material the students spent some time synthesising the material, analysing and evaluating it and developing suggestions for improvement by way of recommendations. once they had completed this task they provided a list of persons at the back of their report whom they wished to receive copies of the report. these included interviewees, the judiciary, public servants, parliamentarians the various law reform bodies and members of the media. the students included acknowledgments thanking the people who had assisted them throughout the project. the students also drafted a press release to be sent when their report had been assessed, finalised, edited and approved by the legal service’s committee of management. covering letters were written by the cle supervisor and sent out to the students’ addressees with the report. 6. how it has been received once the law reform project had been received by the various recipients, we received a number of letters within the month of the report being sent from the attorney general of victoria, the leader of the opposition, the law reform commissioner of victoria, stating that the report raised many issues that needed consideration. they received a letter from the legal aid commission stating the report would be very useful in improving legal aid services to self represented litigants. the supervising solicitor was contacted by various media including radio and the press and asked to report on the student’s findings and sat with students in a radio interview. as the students had been exposed to guidance about dealing with media in the class at la trobe university, they were aware of the limitations of what they should comment upon and so tended to discuss the process of the report and seek guidance from me on the more substantive issues. the media were quite receptive to the idea that it was students who were actively involved and clearly impressed by their energy and commitment in working for the public interest. about two months after the report had been sent out, the law council of australia sought permission to use the report in its materials and for lobbying purposes. in addition, the law institute of victoria requested permission to reproduce the students work and recommendations 172 journal of clinical legal education december 2004 in its criminal law newsletter. the final coup was a notification from the department of justice to say that it had met with the court and that the recommendations from the students were to be implemented as part of the magistrates court’s ten-year strategic plan. 7. getting into the public consciousness the importance of educating the public as to the issues that need action in the legal system or in improving understanding of the operation of the legal system is considered as a very important aim in the student’s work. this is why they involve themselves in using the media as a tool for broader publication and exciting the media’s interest. in addition, some of the projects have also involved an educational component. in one project the students were concerned about the practices of a lending/ finance company and developed an information kit to be used by health centre staff and financial counsellors in educational classes and focus groups with clients in highlighting questionable practices and legal rights. in another project, students came to realise that counsellors of children often believed they were obliged by law to breach confidentiality with their clients thus exposing them to a breach of their duty of care. the students have been developing an information sheet for counselling practitioners, highlighting their obligations and duty of care to clients and what the law did and did not require. this information is being circulated to counselling organisations throughout the state. to date the students have not been as directly involved in lobbying as i would like as often requests for meetings with ministers about their projects occurs after students have completed the subject. there have however been a couple of instances where i have been able to contact students and they have come along to ministerial meetings and been involved in explaining their point of view and why there is a need for a change or to sustain a particular approach. this means they observe first hand the political process and its overlap with law-making. some of the other projects students have worked on have included: 1. juvenile justice entitled, an investment in the future, semester 2, 200 2. police behaviour and standards 3. finance companies and lending practices 4. police prisons: conditions, overcrowding and length of stay in police cells 5. citizens and their rights: a report on the public transport system and city link 6. working together to break the cycle: a discussion of current treatment and sentencing initiatives for drug dependent young people in victoria 7. to breach or not to breach: confidentiality and the care and protection of children 8. the responsiveness of legal aid services 8. moving forward into the future (succession plan) as a result of the law reform project on self-represented litigants two students were hired as paid researchers for a commonwealth government report which examined self-represented litigants in the family court of australia. in addition, students who have interviewed members of the legal innovations in an australian clinical legal education program: students making a difference in generating positive change 173 profession for instance for the project on police cells were invited to apply for articles at these firms. students can list their law reform project and media coverage they have received in their portfolio for job applications. students gain exposure to barristers, magistrates, judges in their research, making links for their future careers but also feedback from these professionals reveals that they found the student contact energising because of the students keeness, freshness and genuine desire to “make the world a better place”. as clinical legal education teachers you would be aware yourselves of how much students can contribute with fresh ideas often challenging the cynicism that years of experience can bring. from a student’s point of view the law reform project enlarges their professional networks for their futures in law or other fields and makes them have more choices about the areas of law they may wish to practice in and if they decide not to practice they realise there is a whole realm of activities that a law degree will give them opportunities in from politics, to being a public servant to working in public policy and advocacy. from the point of view of the profession it may assist in reducing the negative perceptions of lawyers in the community as “money grabbing lawyers” as they see professionals dedicated not just to client work but to the advancement of the community in general. it also means that as one generation moves on there are custodians who will have experienced the benefits of working towards equality before the law and enhancing the rights of citizens. conclusion not only does the law reform project force students out into the community, honing their skills at dealing with difficult bureaucracies and civil servants, seeing the players who administer and legislate for changes in the law but it also reminds these sectors of the important role they have in being involved with students, by mentoring them and understanding that they are keen to learn and engage. the project has many other advantages but the most important is that the students’ clinical experiences can be garnered to work for positive change in the community through law reform and creates the “healthy professional culture” which the alrc saw as so important. as lewis and white suggested in the reference to them at the beginning of this paper, students can strive to “reinforce the concept of equality before the law, to overcome any tendency towards alienation and to encourage people to have constructive perceptions of the system.” students not only learn about legal practice, ethics and legal professionalism but also how to participate in and examine processes of law and acquire a range of law reform skills. it exposes students to the broader role they may wish to play in public life when they are fully fledged lawyers encouraging their participation in their law association and to be unafraid in speaking out against injustice. since the introduction of the law reform component in the clinic, students have received feedback from government, media outlets and parliamentarians that many of their suggestions and recommendations are being examined or are to be implemented. this demonstrates to the students that there is scope for a practical impact on policy-making and law reform to enhance the civil rights of the clients that they have represented as well as the broader community. geoffrey robertson qc in his book, “the justice game” states “this was not what i had been taught at law school, which dunned into me that law was a system for applying rules made by 174 journal of clinical legal education december 2004 legislators or by judges to facts elucidated by evidence, through which a just result would be achieved.” he goes on however to conclude that “law is erroneously regarded as a tool for oppression: i have tried to show it can serve as a lever for liberation.” robertson’s view of the law can present us as educators with an opportunity to instill as a notion, within our students, not just understanding of the law and its operation but also what its potential can be by exposing students to and exploring innovative and challenging ways of learning about the law. as one student said to me last week in his clinical debrief, “this course has made me realize i don’t want to be just a functionary of the legal system. i want to be involved in how the system works and making it work towards the betterment of the community.” appendix to conference paper a selection from the report and some recommendations made by the students included: “we recognise the limit of resources to the justice system thus we advocate a balanced response, providing support where appropriate and representation where necessary. recommendation 1 data on litigants in person should be collected and made available for analysis. particular emphasis should be directed towards; profiling litigants • categorizing their legal disputes • examining the costs involved in resolving the dispute • litigants in person’s impact on court time • recording satisfaction levels38 recommendation 2 because the lack of representation may result in an unfair trial, the right to legal representation for unrepresented adult litigants in criminal and civil matters in the magistrates’ court needs to be strengthened. arguably, too much is left to the discretion of the magistrate. legislative reforms are required that guarantee legal representation for the more serious offences, particularly those punishable by imprisonment. recommendation 3 expansion of the eligibility criteria for legal aid scheme is proposed along the lines of the swedish model. the scheme should encompass not just people living below the poverty line, but people who are financially or socially disadvantaged. innovations in an australian clinical legal education program: students making a difference in generating positive change 175 38 law reform commission of western australia, review of the criminal justice system in western australia: final report, recommendation 198, quoted in australian institute of judicial administration incorporated, litigants in person management plans: issues for courts and tribunals, victoria, australian institute of judicial administration(aija), http://www.aija.org.au/online/liprep1/pdf, 2001, p.10. recommendation 5 a scheme is required to give more assistance to litigants who wish to contest or defend criminal charges but who fail to qualify for legal aid. currently such litigants are pressured to plead guilty because otherwise they must represent themselves (unless they can obtain pro bono counsel) and suffer great disadvantage in the presentment of their case in court. recommendation 6 the duty lawyer scheme should be extended to assist litigants involved in certain civil actions, for example, road accident or personal injuries claims where parties may not be insured. recommendation 7 the compilation of a comprehensive and user friendly directory of legal and non-legal agencies in victoria. recommendation 8 moderate and simplify language used within the court arena. this encompasses avoiding legal jargon, sophisticated phrasing and latin maxims. if there is a simpler way to state a question, ruling or instruction, magistrates should adopt it. recommendation 9 appointment of an information officer whose function is the provision of assistance and support at court. ‘...providing staff are prepared to assist any litigant on request there is no basis for any fear or accusation of impartiality.’39 such an appointment would provided unrepresented litigants with a focal point of reference within the court and would allow registrars to more efficiently deal with the administrative matters of the court. recommendation 11 installation of touch screen information kiosks within the magistrates’ court. these kiosks should facilitate those from non-english speaking backgrounds by providing language options and should offer information and answers vocally to assist the semi-literate or illiterate. recommendation 12 a publication of ‘ten commonly asked questions.’ registrars interviewed noted that they were often repeatedly supplying the same information to multiple litigants in the one day, thus a leaflet of this kind would not only greatly benefit litigants in person but would additionally assist registrar staff.” in all there were twenty-four recommendations. 176 journal of clinical legal education december 2004 39 aiji, p. 18 op cit. 218 international journal of clinical legal education issue 18 street law based cle: a student-impactassessment asnida mohd suhaimi and nur farzana mohd zulkifli faculty of law university of malaya 50603 kuala lumpur malaysia asnidams@gmail.com, mzfarz@yahoo.com phone: +60379676527 fax� no�: +60379573239 asnida mohd suhaimi graduated with ll�b and ll�m from university of malaya and is a qualified advocate and solicitor of the high court of malaya in malaysia� since joining the faculty of law, university of malaya as a tutor in 2006 she has been actively involved in various cle programmes in malaysia and has conducted street law cle training programmes for other institutions in indonesia and vietnam� she is currently one of the supervisors for the community outreach programme, a cle programme at university of malaya� nur farzana mohd zulkifli graduated with ll�b from university of malaya and is currently an advocate and solicitor of the high court of malaya� she was one the most active members of the community outreach programme at the faculty of law, university of malaya, having been a member since her first year and was elected as the deputy director of the programme in 2009� her responsibilities included teaching, training of members, programme planning and lesson plan developments for the programme� after graduation, she occasionally trains the members of the community outreach programme for the teambuilding session and lesson plan development� street law based cle: a student-impact-assessment 219 introduction the term ‘street law’ authentically refers to the specially-created, experimental teaching syllabus developed by a group of students of the georgetown university law center, washington d�c�, united states of america in 1972�1 the syllabus merged legal content together with unconventional teaching methods, taking the ‘law’ out of the typical lecture-classroom setting directly to its intended target audience: non-laywer members of society; aiming to educate them in basic legal principles in simple and practical ways so that it would be easier for the audience to comprehend� the defining character of the course, i�e� its straight-forward connection to its ‘on-the-streetlearners’ became its own name� in fact, it took on an identity of its own becoming a recognized part of the legal curriculum and the founding brand-name of a non-profit, non-governmental organisation known as street law inc, based in the state of maryland, u�s�a as early as 1986�2 street law & community legal education in malaysia taking off from the platform of teaching only law students, street law also kicked off the movement for the education of law not just for law students or lawyers per se, but more importantly the everyday people – empowering them with knowledge and access to the law� this in turn led to the popular synonym for street law, the term “community legal education”� as street law became in its own right, a legal discipline, it became a component with a compelling case for incorporation into the existing practice of legal education across the globe� the case for the assimilation of street law or community legal education into existing legal curricula was that it complemented legal education as it stood, with ethical and social components that were lacking in the current legal education system: clinical legal education� clinical legal education is a system that essentially teaches law to students by getting them to identify, research, and apply legal knowledge in situations replicating, or actually involving, real-life problems�3 the system is ‘clinical’ in every sense of the matter, in that it allows students to readily examine and diagnose legal problems, then ‘treat’ them, exactly in a problem-solving mechanism� though clinical legal education was never limited in scope or application, its working mechanisms in law schools were more often than not, exclusively academic in nature� it was this factor that had led to the fast-paced acceptance of street law into legal curricula across the globe� the call to incorporate street law into the existing clinical model in malaysia actively began after the year 2000� in 2005 at the 13th malaysian law conference, the malaysian bar was urged to take an active part in the promotion and facilitation of community legal education as a part of the effort to improve legal education in malaysia�4 this was followed by the first clinical legal education conference in malaysia, held in the international islamic university malaysia on 16th june 2006, attended by members of the legal fraternity including the malaysian bar, and also academicians 1 who we are, street law inc, 16 feb 2011, <http://www�streetlaw�org/en/page�whoweare�aspx>� 2 “street law” remains a registered trademark of street law inc� 3 grimes, r�, “the theory and practice of clinical legal education”, teaching lawyers’ skills, webb j� and maugham, c� (eds�) (london: butterworths, 1996) at p 138� 4 see lasky, bruce a, “clinical legal education and the role of the bar council”, 13th malaysian law conference, ( kuala lumpur, 16th november 2005)� 220 international journal of clinical legal education issue 18 from the leading law schools in the country� this was the take-off point for street law in the country, igniting local awareness on the matter and stimulating an array of local publications on the subject� what followed however, is of more significance to this research, as illustrated next� community legal education & university of malaya despite positive feedback from especially the malaysian academic community, there is only one existing academic programme which is street law-based in malaysia, offered as an elective academic paper known as the clinical legal education course by the faculty of law, university of malaya� the oldest university and law school in the nation, the university has been a pioneer in the introduction and incorporation of street law, community legal education and the improvement of the clinical legal education model in malaysia� the street law and community legal education concept in faculty of law here is a product of student and professor involvement� it began when four students of the faculty attended a clinical legal education programme workshop in the philippines, manila in the academic year of 2006/2007� what they brought home was an idea that broke new ground in establishing a facultybased project for the teaching of law to marginalised groups, using the law students themselves as the primary educators� the project was named c�l�e�, which then stood for community legal education� by the following academic year, the teaching project was in full swing, with the founding members already trained in the unorthodox street law teaching methodologies� a chain reaction from fellow student-members created a teaching team from within the faculty, together with the faculty’s professors and lecturers being trained in the same manner acting as advisors on the project� the project works on an entirely voluntary basis and is non-profit� the university of malaya (um) cle project began training its own educators, developing lessons, and started teaching a select group of juvenile offenders in a state penitentiary, kajang prison, immediately in the same year� the project grew and received national acknowledgement when it was officially launched as a university project by a representative from the ministry of women, family and community development in the international juvenile justice conference, held in the faculty of law, university of malaya on 16th march 2008� by then, it was renamed c�o�p�, or ‘community outreach programme’5 to avoid misnomer and confusion when the faculty received a mandate to introduce the academic course of community legal education that very year� the 2nd and 3rd year undergraduates became the first academic batch of students for the course, with a majority of them being separate members of cop� the academic course to date receives continuing support from students for its own unique qualities but the cop remains an integral part of the faculty identity as an established programme� its student-trainers have in fact participated in the consultation and training programmes for other law schools in malaysia which intend to set up a similar project of their own, managing projects such as the training workshop for students of the faculty of law, university teknologi mara (uitm) in the academic year of 2009/2010 and many others� it continues to promote growth of clinical and community legal education on a national and even international level, through cooperative efforts with regional law schools via exchange programmes with similar structures 5 hereinafter the community outreach programme is referred to as the “cop”� 221 like the uitm workshop, enriching its own band of educators in the process� it is this underlying reason that the cop is the focus of this paper� the study: programme structure & student motivations the cop programme emphasizes a two-fold objective: in that it allows societal-empowerment through the teaching of law, but more importantly teaches the students to be more effective in the legal craft, infuse ethics, and inspire social and communal responsibility within them� it does this by training the student-educators in five major modules: lesson planning and content development; teaching methodologies, teaching evaluation and assessments; classroom management; and ethics and inter-personal skills� to summarise, each module either on its own or in combination with the others is designed to help achieve the programme objectives� the foremost module: lesson planning and content development is one that sharpens the legal craft in the students� this module compels the studenttrainers to perform in-depth legal research on a subject matter they collectively decide to teach� as they obtain the necessary material on the subject matter, they must selectively choose a topic according to its relevance to their target audience, then narrow it down in terms of actual bulkcontent and rename it in a simplified and direct manner to make it possible to be taught� this second exercise sharpens issue-identification skills and application skills, which are fundamental skills in legal practice� the second, third, and fourth modules together improve the students’ inter-personal and management skills� the training in teaching methods which are designed to avoid the typical lecture/classroom environment the students are so accustomed to, provide working alternatives to their own methods in learning their academic material� it also trains them to teach in the same way; maximising attention and concentrating on ‘learning-by-doing’ methods� training in evaluative measures and classroom management strategies encourage them to objectively assess the efficacy of the lessons they planned and taught almost immediately, asking them to self-reflect and learn from their mistakes while learning to manage interaction and person-to-person communication all at the same time� this builds their confidence, boosts the effectiveness of their own presentation and allows them to empathise while interacting� the fifth module instils ethics, specifically in direct and sub-conscious ways, because the studenteducators are constantly faced with learners from a diverse range� to date, our student-educators have taught a variety of target-audiencesfrom their peers (both in-house and from international backgrounds) to juvenile offenders, secondary/ high-school teenagers to young high-risk children in high-risk environments, and, on occasions, lawyers and law professors� the teaching style would have to be varied in each and every case, especially when dealing with offenders as certain ethical issues with regard to legal counsel, advice and personal attachments arise� the students as trainers are co-dependent on each other and themselves in dealing with ethical issues as they discuss potentially raised issues as part of prior preparation for each teaching session and are consciously reminding each other to maintain professional and ethical stands in all cases� throughout their involvement in the programme, the students have shared thoughts on their experiences with each other in open debrief sessions and personal reflective journal entriesonly street law based cle: a student-impact-assessment 222 international journal of clinical legal education issue 18 the senior trainers and programme-advisors are privy to these� though they have all demonstrated personal and varying versions of their own learning as well as emotional and other changes in themselves, there has been no formal research which assesses on a macro scale the effectiveness of the clinical legal education modules in the cop programme, the trend of student motivation for the programme, and if any, the rate of improvement in the students’ legal, ethical and interpersonal awareness� survey demographics and methodology the students are to be considered as the main driving force of the cop and the dynamism and enthusiasm of the students have allowed the cop to flourish at the university of malaya� at the beginning of every academic session, the potential members of cop were informed of the objectives, the activities and the intensity of the programme� despite the high level of commitment and dedication expected out of them, we found that all members chose to remain in the cop and had actively participated in the activities, and some of them are still interested to volunteer under the cop despite being in their final year of law school� in order to identify the motivation behind their participation and commitment in the cop, we had conducted an online survey where the students filled out questionnaires� the survey also intended to study the role of the programme in improving interpersonal skills of the students� the existing cop programme members are all full-time undergraduates from the first to final year students� together, they make the up the team of educators for the programme; and the majority of the demographics of this study� the total demographic is made up of students who have completed their undergraduate studies but were participants of the programme during their course of study in addition to current members� throughout the lifetime of programme, it has had a majority of female members compared to male ones, by a ratio of 1:3, at an age range of 19-23 years� it should be noted at this juncture that this demographic profile is not influenced by any form of character-selection, as the participants of the programme are retained on an absolutely voluntary basis�6 the questionnaires were sent to the past and present members of the cop who were notified of the survey through their email, the cop facebook group account and their individual facebook account� 31 of them responded to the questionnaires�7 the duration of students’ involvement in the cop is as shown in table 1� 6 they do however, reflect a specific and restricted sample category, and do not in any way reflect the perceptions and attitude of the entire undergraduate population of the faculty� 7 for the purpose of this survey, the respondents are referred to as ‘students’� 223 table 1: duration of involvement in the cop table 1 shows that majority of the students have been members of the cop for three years, followed by the students who have been involved for two years and for one year respectively� none of the students in the final year responded and only one alumnus responded to the survey� the feedback provided by the senior students here was very significant and valuable considering they have been involved the cop activities for more than one year and are able to share and evaluate their experience� another finding from the survey was that majority of them spend more than five hours per week for the cop, which further triggers our interest to ascertain the main reasons why the students decided to take part in the cop� the students’ motivational pattern in order to ascertain the motivational factors of the students in joining the cop, we listed 18 factors and for each factor, the students were to choose from a scale of “strongly agree”, “agree”, “maybe”, “disagree” and “totally disagree”� apart from that, the students were also given the flexibility to explain what made them join the cop in the first place� the motivational pattern of the students who joined the cop is as shown in table 2� street law based cle: a student-impact-assessment 224 international journal of clinical legal education issue 18 table 2: motivation – percentage of “agree” and “strongly agree based on our survey, we found that most of the students strongly agreed with the suggestion that they joined cop to help the underprivileged members of the society� 65 per cent of them ‘strongly agreed’ with this and 29 per cent of them ‘agreed’� only six students answered ‘maybe’, but none of them disagreed with this suggestion� one of the students explained that she wanted to help the ‘unseen’ and ‘forgotten’ group of people� four of them commented that they would like to contribute to the community and cop offers a platform which allows them to get close to the ‘people in need’� since the nature of the activities of the cop focuses mainly on the marginalized section of the society particularly on the juvenile offenders, the students’ participation in cop’s activities would enable them to fulfil this aspiration� the second most popular motivational factor was to improve soft skills or inter-personal skills� 58 per cent responded ‘strongly agree’ with another 32 per cent responded that they ‘agree’ with the suggestion� one student commented that she joined cop to learn more about the practical side of learning law, while another one wrote that she was interested to improve her personal skills� the relevance of the cop programme in improving the students’ inter-personal skills is discussed in the next topic� this third most popular response was to create legal awareness amongst the public� we found that 55 per cent and 29 per cent of the students responded that they ‘strongly agree’ and ‘agree’ to the suggestion, respectively� in fact, the majority of the remarks that were made by the students were relating to their interest in making the law accessible to the public and raising the legal awareness of society� some of the students believe that they have the responsibility to educate members of society about their rights and to empower the public to enable them to share the knowledge with 225 others in their community� from the survey, it appears that the students least agreed with the proposition that they joined the cop due to the programme’s popularity� they were also not influenced by their peers and by their seniors in deciding whether or not to join the cop� this is based on the percentage of the students who agreed and strongly agreed with the suggestion� this finding proves, to a certain extent, that those who joined the cop did so independently; a pivotal trait that would encourage volunteering spirit amongst the young legal practitioners in the future� improvement in interpersonal skills as mentioned before, the second most popular reason why the students joined the cop was to improve their inter-personal skills� in our survey we inquired whether students believed that certain inter-personal skills had been improved upon as a result of joining the cop and taking part in the activities provided� the results of the survey are as shown in table 3� skills percentage (%) of students responded “significant” improvement in these skills teaching 58 ability to empathise 52 legal ethics 42 stress management 42 communication skills 39 legal knowledge 39 self confidence 35 self discipline 35 research 35 time management 32 administrative responsibility 26 writing 23 financial management 13 table 3: significant” improvement in skills from our survey we found that the majority of the students claimed that their teaching skills, the ability to empathise with the society and their legal ethics have improved significantly after taking part in the cop� before joining the cop, the students did not have much teaching experience and some even disliked the idea of having to deliver legal knowledge to prisoners probably due to the stigma attached to them� after getting to know the juveniles, particularly those who were incarcerated in kajang prison, they were able to empathise with those juveniles� working within the setting of the prison also exposed the students to legal ethics, for example the responsibility to safeguard confidential information relating to the identity of the juveniles detained in the prison� street law based cle: a student-impact-assessment 226 international journal of clinical legal education issue 18 the students, however, were not of the opinion that working in the cop improved their financial management skills as the cop did not have much money to begin with and also the fact that the money is being held by the treasurer of the programme� besides playing a role to improve the inter-personal skills of the students, the students also felt that cop also played a major role in improving their academic performance, with 79 per cent of the students agreeing with the suggestion� as the cop emphasises punctuality, preparation and good legal research, the level of discipline and the attitude of the students improved and this was reflected in their academic performance, particularly evident in the effort they put in during preparation for their own tutorials and their level of participation during class� none of the students were of the opinion that the cop had negatively affected their academic performance� interest in participating in a traditional legal clinic since the cop is considered as a teaching clinic which consists of street law programme, we were interested to find out whether the students considered participating in the cle programme in the form of a traditional legal clinic as the prospect of having a legal clinic at the faculty is being weighed by the faculty� we found that 97 per cent of the students who responded in the survey would like to participate in a traditional legal clinic if they are given the opportunity to do so in the future� out of this, 68 per cent would still like to remain in the cop and 29 per cent would like to participate in the legal clinic alone� one student did not wish to participate in the clinic and was only interested in the street law programme by the cop� the level of interest reflected by the survey indicates that the cop was able to generate the interest of the students to serve the public in a clinical setting, with a majority who still wish to remain in the street law programme� conclusion the members of the cop at the faculty of law, university of malaya exhibited considerable admiration for the programme, as seen from the continuing support from the students who make up the frontline of the programme� the students themselves have moved from a stereotypical perception that the programme lacks academic substance and is like any other extra-curricular activity which merely generates enjoyment� the findings of the survey have shown that the students believe that they have made a significant improvement where legal skills are concerned, have allowed them to empathise with the marginal members of the society and upgraded their inter-personal skills� many of them have achieved fulfilment of their original motivations for joining the programme, ultimately translated into their commitment and fidelity to sustaining the programme in the future� reviewed article 77 sustainability and the university law clinic richard owen* abstract following increased activism, the climate crisis has moved up the political agenda, and with it an increased interest in sustainability issues. this article will look at how rebellious lawyering theory can provide a template for university law clinics when seeking to further sustainability objectives. it argues that as rebellious lawyering methods require a collective dimension to lawyering, egalitarian collaboration, deep knowledge of the communities that lawyers serve, simulations of a better future, self-examination and the building of broad coalitions it can in certain circumstances be a more effective way of furthering sustainability objectives than traditional legal process. furthermore, building broad coalitions is vital to maintain the impetus behind sustainability initiatives. it will reflect on the cultural change that is needed to respond to the sustainability agenda, what lessons can be learnt from the different approaches which have been taken internationally to the issue, as well as the pedagogical issues that need to be addressed to ensure that students have the appropriate sustainability literacy. it will also reflect on the extent to which sustainability is already embedded in the work of university law clinics. reviewed article 78 it will examine how university law clinics can respond to sustainable development legislation by using swansea law clinic’s experiences of working with sustainability goals and approaches, in the form of the well-being of future generations (wales) act 2015, as a case study. keywords: clinical legal education, future generations, rebellious lawyering, sustainable development, sustainability, wales, wellbeing. introduction1 "the ultimate test of a moral society is the kind of world that it leaves to its children."dietrich bonhoeffer the well-being of future generations (wales) act 2015 (the act), most of whose provisions came into force on 1st april 2016, makes “sustainable development” the central organising principle of government in wales. this article will look at how rebellious lawyering theory can be applied in order to inform a law clinic’s activities when furthering a sustainability agenda. it will consider the operation of the act to date and will argue that in certain circumstances rebellious lawyering methods are a more effective and accessible way of furthering sustainability objectives than traditional legal proceedings. * richard owen is a professor at swansea university, united kingdom. 1 i would like to thank the anonymous reviewer for comments on earlier drafts of this article. reviewed article 79 using swansea law clinic as a case study, it will look at the extent to which sustainability is already inherent within the clinic’s activities and what still needs to be done in order to further sustainability objectives. it will also look at the pedagogical issues that need to be addressed to ensure that students have the appropriate sustainability literacy. there has been interest in the welsh sustainability model in other parts of the united kingdom and internationally. there have also been important sustainability initiatives in other parts of the world. the article will evaluate the complex architecture of the act and assess the extent to which wales’s sustainable development law is determined by its local context and the extent to which its principles transcend national boundaries. rebellious lawyering rebellious lawyering is a theory which has been developing since 1992 and is based on a rejection of “regnant lawyering” where there is a hierarchical relationship between lawyer and client with the lawyer seen as the pre-eminent problem solver.2 regnant lawyers are seen as having only loose connections with other community groups. their legal practice will only have a modest grasp on how so-called large 2 gerald p. lópez, rebellious lawyering: one chicano's vision of progressive law practice (westview press, 1992) reviewed article 80 structure regional, national, international, political, economic and cultural forces shape and respond to the status quo.3 in contrast to regnant lawyers, rebellious lawyers seek to effect social change by empowering clients through egalitarian collaboration, as they believe grassroots activism can be more effective in bringing about social change. they stress that they are not pre-eminent in the lawyer-client relationship.4 this equality has radical implications for lawyering. it means that lawyers will not tell the client what the legal issues are but the clients themselves will be involved in framing the issue; the client will generate interventions in the community; it is the client who will monitor the success or otherwise of these interventions; and all this will require innovative organisational design.5 although there have been a number of definitions of rebellious lawyering, what they have in common is their belief in an approach to legal practice which is socially transformative. they have a raised awareness of the tendency of legal process to individualise problems and see a community-wide dimension to many of the problems faced by socio-economically challenged communities which calls for community and social movement building. as they are wary of the tendency of 3 ibid 24 4 ‘what is rebellious lawyering?’ (rebellious lawyering institute, undated) <https://rebelliouslawyeringinstitute.org/what-is-rebellious-lawyering/ > accessed 2 july 2019 5 anthony alfieri, rebellious pedagogy and practice, (2016) 23 clinical l. rev. 5, 15 https://rebelliouslawyeringinstitute.org/what-is-rebellious-lawyering/ reviewed article 81 legal process to individualise problems, they need a vision of a good life in order to bring about programmatic change. this is a technique shared with those working within the sustainability space who also emphasise the need to envision a good life in the form of what a sustainable society will look like.6 there are also those within the clinical legal education movement who stress the importance of envisioning or, in other words, for seeing clinic as “…a site for imagining justice and new modes of legal practice that promote and even prefigure justice.”7 rebellious lawyers will often see the community as their client working with lay lawyers and community groups in a similar way in which public health medics see the community as their patient. there are a number of international examples of this approach of viewing the community as a client including those reaching back in time before theories of rebellious lawyering were formulated. fifty years ago in the united states, wexler said: “the whole notion of adversary proceeding is unsuited to dealing with social problems.”8 he advocated a form of legal practice for oppressed communities orientated towards facilitating the organisation and empowerment of people rather than solving their legal problems because many problems were shared amongst members of oppressed groups.9 bellow also talks of legal work “being done in service to individuals and larger more collectively 6 jane davidson, #futuregen (chelsea green publishing, 2020) kindle edition. 440 7 sarah buhler, ‘clinical legal education in a dangerous time’ (2016) 23(5) international journal of clinical legal education, 23 8 stephen wexler, ‘practicing law for poor people’ (1970) 79(2) the yale law journal, 1049, 1059 9 ibid 1053 reviewed article 82 orientated goals.”10 whilst in canada the mission of parkdale community services, which was founded in 1971, includes providing services based on “community needs”.11 nicholson, who has practised in south africa, scotland and england, says that the most beneficial form of clinical delivery for clients is that which seeks to improve the lives of members of a community by taking a multi-disciplinary, “wraparound” approach recognising the importance of legal and non-legal remedies.12 rebellious lawyers are grounded in their local communities and consider how large structure such as political, economic and political forces affect the ability to bring about change in these communities. as it is a form of community-based lawyering, assets such as community activism and clients’ stories are of central importance. rebellious lawyers demystify the law for their clients in order to empower them so when clients are aware of what the lawyer is trying to achieve, they can bring more information to them, which, in turn, may be of help to the lawyer. it envisions the lawyer as someone who brings their expertise to work in collaboration with, rather than on behalf of, a number of different groups such as community leaders, community groups, agencies and allies with an openness to alternative methods of 10 gary bellow, ‘steady work: a practitioner’s reflections on political lawyering’ (1996) 31 (2) harvard civil rights – civil liberties law review 297, 300 11 parkdale community legal services, ‘our vision’ < https://www.parkdalelegal.org/about/vision/> accessed 26 june 2020 12 david nicolson, ‘”our roots began in south africa”: modelling law clinics to maximise social justice ends’ (2016) 23(3) international journal of clinical legal education, 119 https://www.parkdalelegal.org/about/vision/ reviewed article 83 resolving disputes other than the use of litigation although litigation is seen as a component of the lawyer’s toolkit. communitarian social activists operating in different contexts have used approaches that have affinities with rebellious lawyering, as well as similar ways of working. what they have in common is they stress the importance of being embedded in community, working in non-hierarchical ways, and engaging in self-examination in order to be effective in bringing about social transformation. for example, before rebellious lawyering theory had been developed, mahatma gandhi’s theory of social change was born out of a struggle with colonialism. although there are few explicit acknowledgements of gandhi’s theories in the literature on rebellious lawyering there are parallels and similarities between them. like rebellious lawyers, gandhi was sceptical about litigation, but not opposed to it, as a means of advancing the cause of marginalised communities; however, he was wary of its delays and cost.13 he saw arbitration and mediation as more effective methods of resolving disputes for the marginalised.14 gandhi’s concept of swadeshi which prescribed the path of commitment and service to “our immediate surroundings” resonates with the idea of the lawyer becoming embedded in the 13 mahatma gandhi views on the basic issues of social change <https://www.yourarticlelibrary.com/sociology/mahatma-gandhi-views-on-the-basic-issuesof-social-change/38489 > accessed 27 june 2020 14 ibid https://www.yourarticlelibrary.com/sociology/mahatma-gandhi-views-on-the-basic-issues-of-social-change/38489 https://www.yourarticlelibrary.com/sociology/mahatma-gandhi-views-on-the-basic-issues-of-social-change/38489 reviewed article 84 community, as well as ideas of localism and self-sufficiency within the environmental movement.15 his commitment to equality, including between intellectual and manual labour, anticipates the rejection of regnant lawyering in rebellious lawyering theory. he felt that there had to be a social purpose to education, so his ideas can take root in a clinical legal education setting. above all, gandhi was a transformational leader as he brought about a change in values and beliefs amongst his followers as to the best way to achieve change from initially wanting armed conflict with their colonial oppressors to the successful adoption of nonviolent resistance known as satyagraha. paolo freire was one of the founders of critical pedagogy and felt that education could be the basis of social transformation for communities marginalised by capitalism. in freiran theory teacher and leaner must enter into a dialogue and therefore must be in an equal relationship in order to learn from each other. this reflects in an educational setting the equality of relationship between lawyer and clients in rebellious lawyering. teacher and learner must act together upon their environment in order to reflect critically upon their reality. however, not only must they reflect, they must also take action to change this reality, which is a concept called conscientization. a commitment to this approach requires constant selfexamination on the part of the teacher who must be prepared to be personally 15 ibid reviewed article 85 transformed by the experience.16 freire’s theories can act as a guide for applying rebellious lawyering theory in an educational setting as the objectives and ways of working are so similar. as in frieran theory, in rebellious lawyering theory the lawyer and the community are in a reciprocal educative relationship: the lawyer must be open to learn from the communities they serve, and the community must be open to learning about legal process from the lawyer. as a concomitant to the lawyer’s openness to learn from the community, they must also be open to selfrefection and adapt their lawyering model as their understanding of the communities they serve deepens.17 naomi klein’s theories of social change have been developed in response to the climate crisis. she aims to organise a non-violent mass movement for climate action as she believes individual action by itself, whilst useful, is not sufficient to avert climate catastrophe. there has to be an organised fight for a major restructuring of our economic system, which usurps the reigning neoliberal ideology. she defines this as market fundamentalism involving deregulated capitalism, which needs to be replaced with an alternative worldview. the alternative will be “embedded in interdependence rather than hyper-individualism, reciprocity rather than dominance, and cooperation rather than hierarchy.”18 she recommends a strategic alliance between climate activists and activists in the various movements for social 16 peter mayo, echoes from freire for a critically engaged pedagogy, (2013) bloomsbury 17 lópez (n 2) 355 18 naomi klein, this changes everything: capitalism vs. the climate (2015) penguin, 462 reviewed article 86 justice, based on their common interests and the galvanising effect of climate emergencies. this coalition building is necessary to defeat the forces of populism and is comparable to the need for coalition building that rebellious lawyers recognise they must do in order to be effective. as the present economic model based on endless growth is unsustainable, we have to examine ourselves and our consumerist values in order to reduce our over-consumption to sustainable levels.19 economies need to be localised and we need to be more deeply connected with and knowledgeable about our communities, as the effects of climate change has subtly different impacts in different places.20 this thread of needing to constantly re-examine yourself in different theories of social change also finds expression amongst rebellious lawyers. they experiment with their collaborative work, “constantly re-evaluating their own institutional and personal efforts.”21 they have to be self-critical in reflecting on their own performance so they do not get hemmed in by their own “tiny habits”.22 as rebellious lawyering requires continuous experimentation it has been said that it is not a methodology but “prescriptively normative” with principles guiding them as they evolve their legal pedagogy and practice.23 rebellious lawyers regard themselves as only possessed of a partial truth. whilst they hope their ideas will last 19 naomi klein, ‘the change within: the obstacles we face are not just external’ 21 april 2014 the nation 20 ibid 21 lópez, (n 2) 48 22 ibid 7 23 alfieri (n 5) 5 reviewed article 87 for a reasonable time, they are primarily striving to develop ideas about ways of seeing and talking about specific situations. they have to respond to the increase in knowledge they acquire about their communities over time and the changes in the institutions with which they have to deal.24 rebellious lawyers must continuously reflect on their ability to work with, as opposed to on behalf of, certain groups. do they have sufficient cultural knowledge and awareness to communicate effectively with that group? are they sufficiently aware of how the law and changes to it permeate the lives of the groups they work with? are they sufficiently aware of how local, regional, national, political, economic and cultural forces impact on their communities? they will be interdisciplinary in their methods drawing on ethnography, anthropology and sociology, in addition to law in order to understand their communities better. so, a rebellious lawyer is engaged in a constant process of self-examination.25 they need to reflect on their values, developmental needs, and reaction to situations before they can be agents of social change in similar ways to those advocated by gandhi, freire and klein. 24 lópez (n 2) 65 66 25 lópez (n 2) 168 reviewed article 88 sustainability and sustainability education it is submitted that the rebellious lawyering model is suited to inform the work of a university law clinic engaging in sustainability issues and provides useful guidance. although rebellious lawyering theorists do not make much mention of sustainability it is inherent in their activities, as, indeed, it is already inherent in many university law clinic activities. it is striking that traditions of lawyering that are specifically rooted in sustainability come to similar conclusions as to the lawyer’s role as facilitator and collaborator.26 through its desire to link the local to the regional to the national to the global rebellious lawyering has a similar approach to those involved explicitly in sustainability, who also live by the motto, “act local, think global”. educators have difficulty with sustainability due to the uncertainty of the concept, as there is no universally agreed definition. for the purposes of a university law clinic, the following definition of sustainability is useful: 26 janelle orsi, ‘birth of sharing law’ (shareable, 29 march 2010) <https://www.shareable.net/birth-of-sharing-law/> accessed on 13 september 2019. ‘community transactional law’ or ‘sharing law’ has implications for the content and approach to legal practice. it sees collaboration between lawyer, client, and community as key. a more sustainable economic model will see a shift to more innovative sharing transactions such as bartering, cooperatives, community currencies, time banks. community supported agriculture, cohousing, and community gardens. this will mean that lawyers will more frequently represent groups of people, as opposed to individuals or businesses. this creates new challenges for the lawyer. for example, if a group of unrelated people wish to purchase a house together traditional legal ethics require that they each have their own lawyer to advance their interests “with zeal”. however, zealous advocacy of a single party’s interests may not be the best approach to achieve the shared objective. it may be more easily realised by facilitating an open and trusting relationship between the parties and mediate between them when disputes arise. https://www.shareable.net/author/janelle-orsi/ http://shareable.net/blog/the-hillside-farmers-cooperative http://shareable.net/blog/the-slow-homes-manifesto-part-one reviewed article 89 "a sustainable future is one in which a healthy environment, economic prosperity and social justice are pursued simultaneously to ensure the wellbeing and quality of life of present and future generations. education is crucial to attaining that future." 27 sustainability education needs to be “approached through a ‘whole systems thinking model’”, which offers us a profound way to re-orientate our worldview, and also our educational thinking and practice.” 28 whole systems thinking has three interrelated dimensions – perceptual, conceptual and practical – which describe human experience and knowledge at any level whether it be at the level of the individual, the community or whole societies.29 the perceptual way of thinking is intuitive ways of knowing. when a culture is individualistic there is little encouragement to think of “the other” whether that be communities, distant communities or future generations. developing perceptual thinking requires an inner “deepening” process, which values all aspects of personhood, particularly intuition, and becomes aware of our individual and shared 27 sustainable ideas, ‘sustainable ideas!’ <https://www.sustainable.id/> accessed on 29 june 2020. other possible definitions are: “a process of change in which the exploitation of resources, the direction of investments, the orientation of technological development and institutional change are all in harmony and enhance both current and future potential to meet human needs and aspirations.” another possible definition is: “in essence sustainable development is about five key principles: quality of life; fairness and equity; participation and partnership; care for our environment and respect for ecological constraints recognising there are 'environmental limits'; and thought for the future and the precautionary principle.” 28 stephen sterling, sustainable education: re-visioning learning and change (green books for the schumacher society) kindle edition, 874 29 ibid 890 https://www.sustainable.id/ reviewed article 90 needs and worldviews. it requires the development of soft skills such as empathy.30 the conceptual way of knowing is the dominant way of knowing in the western intellectual tradition. it seeks to develop critical and systemic understanding and pattern recognition.31 the practical way of knowing or praxis is often given a lesser status in the same tradition.32 this is the process of using knowledge in a practical way. privileging the conceptual over the perceptual and practical ways of thinking, as happens in the western educational tradition, breaks the connection between them. for example, in order to engage in legal practice striving to achieve sustainability goals for marginalised communities, clinical law students will need sound conceptual thinking. they will need to understand the scientific method behind issues such as air pollution. however, that by itself will not be enough to bring about transformational change. they will need to work effectively with people within that community and be able to empathise with them, that is, through the perceptual way of thinking, and work with them on the problems they are facing in order to bring about more sustainable solutions, that is, through the practical way of thinking. there are clear synergies between whole systems thinking and rebellious lawyering theory. the latter stands in opposition to regnant lawyering with the lawyer who exists exclusively in the conceptual dimension cast in the pre-eminent role whereas 30 sterling (n 28) 895 31 ibid 916 32 ibid 890 reviewed article 91 the rebellious lawyer will draw on the practical and perceptual ways of knowing which exist in the communities they serve. this leads to a deeper and more integrated understanding of what is happening in these communities and therefore put them onto a more sustainable footing. considering how the past affects the present and the future offers possibilities both for rebellious lawyering and sustainability practice. the sociologist, avery gordon, seeks a new way of knowing called “social haunting” or a knowledge of “the things behind the things.”33 she says that “ghostly matters” – “echoes and murmurs of that which has been lost” haunt us at every turn.34 like rebellious lawyers, gordon says we need new ways of knowing and radical political change cannot come without it. however, to gordon the new way of knowing is achieved by recognising how the past affects the present. “social haunting”, which can be defined as “a sense, a feeling, a way of thinking, an atmosphere that pervades within a community, influencing its future in myriad, perhaps unnoticed, ways,” can enrich and inform rebellious lawyering practice.35 it enables new ways of seeing and listening to the communities rebellious lawyers serve; and it also offers the potential to enrich and inform the sustainability agenda. 33 avery gordon and janice radway, ghostly matters: hauntings and the sociological imagination (university of minnesota press, 2018) vii 34 ibid x 35 uk research and innovation, “working with social haunting: pastand present-making in two ‘communities of value’” ≤ https://gtr.ukri.org/project/0b37892c-e08c-4ad8-bf1e9ba30fcdf8eb≥ accessed 29 june 2019 https://gtr.ukri.org/project/0b37892c-e08c-4ad8-bf1e-9ba30fcdf8eb https://gtr.ukri.org/project/0b37892c-e08c-4ad8-bf1e-9ba30fcdf8eb reviewed article 92 klein used a similar idea specifically in the context of sustainability when she said we need to overcome the “culture of the perpetual present, one that deliberately severs itself from the past that created us as well as the future we are shaping with our actions.”36 if we deepen our understanding of what shapes group behaviour, we increase the chance of bringing about behavioural change. there have been studies in different branches of science which support gordon’s idea that a community’s present and future is determined by the past. there is a relatively new area of study in psychology called intergenerational or transgenerational trauma, which posits that trauma can be transmitted through generations, so can affect later generations who did not live through the historical traumatic event via complex post-traumatic stress disorder mechanisms. this area of study commenced with research into the behaviour patterns of children of holocaust survivors. studies have also found that there has also been an impact on the behaviour of subsequent generations of indigenous canadian and native american populations caused by past oppression, as well as african-americans caused by a history of slavery and racial discrimination.37 intergenerational trauma has also been found to have been caused by sexual abuse and extreme poverty. it 36 klein (n 19) 37 tori deangelis, ‘the legacy of trauma’ (2019) 50(2), monitor on psychology 36 reviewed article 93 can affect communities, as well as families, by creating distrust of those outside the group, particularly those from historically oppressive groups.38 in addition to these behavioural studies, there has been neurological research which posits that the link between memory, imagination and simulating the future is physical. there is a common neural system, which supports our recollection of times past, imagination, and our attempts to predict the future.39 in other words, there is a physical link between our memory and our ability to imagine the future, as both use the same part of the brain: the hippocampus. gordon’s identification of the limits of current disciplines and fields can be applied to other areas as well, and those areas are potential partners in the coalition building and network development that rebellious lawyers wish to see. social work is seen as too often having an individual focus in a way which depoliticises “its response to problems exacerbated by poverty, social exclusion and limited life chance.”40 similarly, nursing is often seen as focussed on “an individualistic biomedical model that sees the biological individual as a system in itself disconnected from the 38 ibid 39 sinéad mullally and eleanor maguire, ‘memory, imagination and predicting the future: a common brain mechanism?’ (2013) 20(3) the neuroscientist 220 40 andrew whiteford, viv horton, diane garrad, deidre ford, and avril butler, ‘sustaining communities: sustainability in the social work curriculum’ in paula jones, david selby and stephen sterling (eds) sustainability education (earthscan 2010) 241 reviewed article 94 environment.”41 rebellious lawyers therefore when engaging in their selfexamination need to be aware not only that they have been educated in a discipline whose traditions and processes are highly individualistic but also, in many cases, their coalition and network partners have also been educated and practised in processes which are also highly individualistic and not accustomed to linking the specific to any wider structures. putting ‘social haunting’ in context in an area like south wales, where swansea law clinic (the subject of the case study discussed below) is located, effects of de-industrialisation are still being felt. many will have regarded their communities as having fought and lost an existential battle during the miners’ strike of 1984. there is an ongoing collective trauma caused by the conflict, so behavioural change will not come about unless there is a good understanding of how the past haunts the present and affects the future. for example, there are continuing feelings of demoralisation and loss of confidence created as a result of losing such a high stakes collective battle. many also remember when the economy transitioned away from heavy industry to service industries in the 1980s bringing with it high unemployment.42 this could 41 benny goodman and janet richardson, ‘climate change, sustainability and health in uk higher education: the challenges for nursing’ in paula jones, david selby and stephen sterling (n 35) 118 42 when there were large scale steel redundancies in south wales in 1980 the unemployment rate rose from 7.7% to 15.7%. s. young, ‘the implementation of britain's national steel reviewed article 95 affect attitudes to change as the economy undergoes its next transition, which is away from a more carbon intensive economy to a low carbon or zero carbon economy. rebellious lawyers who are embedded in communities and knowledgeable about their clients lived experience will have greater appreciation of how the past affects the present and future, which will help them identify obstacles to change. however, being aware of the past, and how it affects the present, must not create a sense of inevitability about the future. although currently economically challenged that does not mean the south wales region is inevitably going to be so in the future. the way we envision the future draws on our pasts, but there are any number of combinations that can be used which draw on the present and the past when constructing a future. there can be different outcomes if there is a conscious decision to take decisions in different ways from in the past. sustainable development legislation and the well-being of future generations (wales) act 2015 (the act) this section will assess the content of the act and its implications for lawyering, as well as evaluating how rebellious lawyering methods might respond to it. in addition, it will further assess how it might influence a university law clinic’s strategy at a local level’ in yves meny, vincent wright, martin rhodes (eds) the politics of steel: western europe and the steel industry in the crisis years (1974 – 1984) (de gruyter, 1986) 371 reviewed article 96 practice, which is using rebellious lawyering methods, when seeking to achieve sustainability goals. the act is the only legislation in the world, to date, to impose duties to protect the needs of future generations and to embed the united nations sustainable development goals into law.43 the legislation had first been suggested in 2002 by victoria jenkins, then a lecturer in law at swansea university.44 there were later widespread calls for such an act from civil society. for example, wwf had convened and supported thirty civil society organisations into the sustainable development alliance, which called for such legislation.45 for the purposes of the act, “sustainable development” means the process of improving the economic, social, environmental and cultural well-being of wales.46 it requires the public bodies named in the act to carry out sustainable development by acting in accordance with “the sustainable development principle”. the definition of sustainable development used in the well-being of future generations (wales) act 2015 is: 43 the future generations report 2020 (future generations commissioner for wales, 2020) 14 44 davidson (n 6) 1360 45 davidson (n 6) 1461; sustainable development alliance, ‘shaping our future’ < http://www.shapingfuturewales.org/en/> accessed 7 september 2020 46 well-being of future generations (wales) act 2015 s 2 http://www.shapingfuturewales.org/en/ reviewed article 97 “…[acting] act in a manner which seeks to ensure that the needs of the present are met without compromising the ability of future generations to meet their own needs.”47 this is a definition of sustainable development, as opposed to sustainability. the difference between the two is often seen as sustainability being a long-term goal (that is, a more sustainable world) and sustainable development as the pathways and processes to achieve it, for example, sustainable production.48 the definition used in the act follows the brundtland definition.49 the definition in the act is attempting to combine environmental protection with human, social and economic development concerns. the advantage of this is that it is easy to get broad acceptance of the principle of sustainable development, which will assist those practising rebellious lawyering to achieve the broad consensus, which will be helpful to their work. the disadvantage of such a broad-ranging definition of sustainable development is that tensions can arise particularly between environmental concerns, on the one hand, and human, social and economic developments concerns, on the other. there is no inherent mechanism for resolving trade-offs between competing concerns 47 ibid s 5(1) 48 ‘sustainable development’ (unesco undated) < https://en.unesco.org/themes/educationsustainable-development/what-is-esd/sd> accessed 8 august 2019 49 world commission on environment and development, our common future “the brundtland report” (1987) chapter 1, para. 49 https://en.unesco.org/themes/education-sustainable-development/what-is-esd/sd https://en.unesco.org/themes/education-sustainable-development/what-is-esd/sd reviewed article 98 within the act. this reality, combined with a lack of a common understanding as to what sustainable development means in practice, impedes its effectiveness. for example, the definition could justify a fiscally conservative approach as the burden of debt will be carried by generations as yet unborn, as well as justifying a deep ecological approach, which would be totally different. the act requires forty-four public bodies in wales to work towards seven well-being goals50: 50 n 46 s 4 reviewed article 99 these goals have been described as “substantive commitment devices”, which are mechanisms that commit policy makers to do certain sorts of things to protect longterm interests and enables the executive to be scrutinised for the effect its decision making is having on long-term interests.51 51 jonathan boston, ‘#futuregen: lessons from a small country’ (hay digital festival, 31 may 2020) reviewed article 100 the act also requires the welsh government to publish “national indicators” that are to be applied to measure progress towards well-being goals;52 they must produce an annual well-being report “on the progress made towards the achievement of the well-being goals by reference to the national indicators and milestones”;53 and within twelve months of a general election to the welsh parliament they must produce a future trends report.54 these have been called “procedural commitment devices”, which do not require the government to do the right thing but publicly declare beforehand what they will do so they can be scrutinised and held to account.55 there is no prioritisation of the goals, which are intended to be interlocking. however, if ecological sustainability were to have primacy within the principle then this priority would create an effective framework for decision-making and governance, as that would make clear that human, social and economic development must occur in an ecologically sustainable manner.56 although a globally responsible wales is one of the well-being goals, this goal is seen as a dilution of the welsh government’s previous sustainable development 52 n 46 s 10 (1) 53 n 46 s 10 (10) 54 n 46 s 11 55 n 51 56 andrea ross, sustainable development law in the uk from rhetoric to reality (earthscan for routledge, 2012) 4 reviewed article 101 scheme which had the vision for wales living within its environmental limits.57 at present, wales consumes at a rate that would require 2.5 planets.58 also, there is nothing in the act which prevents wales from exporting a lack of sustainability whilst remaining sustainable within its own borders by, for example, exporting plastic refuse to another state. there are those who would analyse the act from a deep ecological perspective and would argue that sustainable development is a contradiction in terms. their assertion is that as the earth only has finite resources, there are limits to economic growth; so unlimited economic growth stands in opposition to environmental protection.59 from this perspective, “a prosperous wales” which “recognises the limits of the global environment,”60 but is not absolutely required to live within them, would not go far enough. the interlocking of goals and their lack of prioritisation will, however, be able to promote complexity thinking, which has been defined as follows: “systems are defined as complex because they are diverse and composed of multiple, interconnected, interdependent elements interacting in non-linear 57 welsh assembly government (wag), one wales: one planet the sustainable development scheme of the welsh assembly government (wag 2009) 17 58 stockholm environment institute and ghd, ecological and carbon footprints of wales update to 2011 (stockholm environment institute and ghd, 2015) 59 john alder and david wilkinson, environmental law and ethics (palgrave, 1999) 141 as cited in ross (n 56) 3 60 n 46 s 4 reviewed article 102 ways. they are adaptive because they have the capacity to change and learn from experience, which gives rise to self-organisation or self-regulation.”61 complexity thinking differs from linear thinking which can be defined as: “…a process of thought following known cycles or step-by-step progression where a response to a step must be elicited before another step is taken.”62 rebellious lawyers, by their nature, will engage in complexity thinking as they will wish to place their clients’ experience within a wider context and examine how the interdependence of relationships will affect them, so the interlocking of the seven well-being goals will assist them in their practice, as well as being a template for the good life rebellious lawyers are envisioning. when applying the sustainable development principle there are “five ways of working” which public bodies must follow.63 they are as follows: i. long-term64 short-term needs must be balanced by the need to meet long-term needs. 61 christine gilligan kubo, ‘understanding sustainable development in the voluntary sector: a complex problem’ (doctoral thesis) (2013) 61 <http://shura.shu.ac.uk/9712/> accessed 15 august 2019 62 frank van empel, ‘why economists are always wrong’ (ecolutie, undated) <https://www.ecolutie.nl/why-economists-are-always-wrong/ > accessed 15 august 2019 63 n 46 s 5(2) 64 n 46 s 5 (2) (a) http://shura.shu.ac.uk/9712/ https://www.ecolutie.nl/why-economists-are-always-wrong/ reviewed article 103 ii. integration65 public bodies must consider how their well-being objectives may impact upon each of the well-being goals, on their other objectives, or on the objectives of other public bodies. iii. collaboration66 public bodies must act in collaboration with any other person (or different parts of the body itself) that could help the body to meet its well-being objectives. iv. involvement67 public bodies must involve people with an interest in achieving the well-being goals and ensure that those people reflect the diversity of the area which the body serves. v. prevention68 public bodies must take account of preventing problems occurring or getting worse in order to achieve their well-being objectives. it is submitted that rebellious lawyering theory is well suited to “the five ways of working.” the requirement for public bodies to provide an integrative service means that they must relate differently not only to other public bodies but also to individuals, community groups, the third sector and businesses. this creates the 65 n 46 s 5 (2) (b) 66 n 46 s 5 (2) (c) 67 n 46 s 5 (2) (d) 68 n 46 s 5 (2) (e) reviewed article 104 opportunity for university law clinics to work with public bodies in innovative ways and provide more innovative service to the economically challenged communities they often serve. future generations commissioner the act has also set up the post of a future generations commissioner for wales who is effectively the representative of future generations in policy making in wales.69 she has the following statutory powers: • advise, encourage and promote70 • research71 • carry out reviews72 • make recommendations73 • produce a future generations report74 • receive advice from an advisory panel75 the future generations commissioner is a potential ally to a rebellious lawyer. her “name and shame” powers have the potential to further a rebellious lawyering agenda and she is in a position to promote socially transformative resolutions to 69 n 46 s 17 70 n 46 s 19 (1) 71 n 46 s1 9 (2) 72 n 46 s 20 73 n 46 s 21 74 n 46 s 23 75 n 46 s 26 reviewed article 105 disputes other than through the use of litigation. university law clinics can inform her work not only through their data but also by highlighting the academy’s work in creating new solutions to sustainability issues. although in certain respects, the future generations commissioner for wales is a unique role, there have been several attempts at enhancing foresight and the scrutiny of long-term governance in policy making around the globe. the attempts that have been made have been diverse and include specialist legislative committees, future-focused forums, parliamentary commissions and independent commissioners with mandates to address long-term issues, government ministries and various advisory arrangements.76 one of the most established initiatives is finland’s committee for the future, which is a parliamentary committee established in the 1990s. one of its main functions is to prepare a parliamentary response to the finnish government’s reports on the future and to date has responded to seven such reports.77 although scotland’s futures forum was established over thirteen years ago under the auspices of the scottish parliament, it is not a parliamentary committee or any 76 jonathan boston, david bagnall and anna barry, foresight, insight and oversight: enhancing long-term governance through better parliamentary scrutiny (institute of governance and policy studies, victoria university of wellington, 2019) 114 77 ibid 119 reviewed article 106 formal part of the parliamentary structure. it is not intended as a scrutiny mechanism but is a channel for public engagement with the scottish parliament by encouraging dialogue with long-term issues, as well as promoting research on such issues. singapore’s approach has been to develop a think tank, the centre for strategic issues, which is part of the executive and since 2015 has been part of the strategy group in the prime minister’s office. a number of countries have devised new institutions to address long-term issues. these countries include hungary, which has a commissioner for future generations; tunisia, which has a sustainable development and the rights of future generations commission; gibraltar, which has a commissioner for sustainable development; new zealand which has a parliamentary commissioner for the environment (whose remit is focussed on the environment, but not wider sustainability issues) and israel, which had a commission for future generations, now abolished.78 78 house of lords, ‘protecting and representing future generations in policymaking debate on 20 june 2019 library briefing’ 7 – 10 <https://researchbriefings.parliament.uk/researchbriefing/summary/lln-20190076#fullreport> accessed 13th august 2019 https://researchbriefings.parliament.uk/researchbriefing/summary/lln-2019-0076#fullreport https://researchbriefings.parliament.uk/researchbriefing/summary/lln-2019-0076#fullreport reviewed article 107 the united arab emirates have tried a different type of institutional innovation through the establishment of a “ministry of possibilities”, the world’s first virtual ministry to apply design-thinking and experimentation to develop proactive and disruptive solutions to tackle critical issues. the ministry brings together national and local government, the private and voluntary sectors in order to consider radical changes in government systems, to adopt new innovative models and to work in ways that take calculated risks.79 at the time of writing, there are also legislation and policy changes in train in portugal and canada, as well as a future generations bill before the uk parliament, which have looked to the welsh model for inspiration.80 if canada and the uk were to provide some kind of sustainability lead whether through institutional change or scrutiny devices of the type mentioned above they would be countries with significantly larger populations than any of wales, finland, scotland, singapore, hungary, tunisia, gibraltar, new zealand or the united arab emirates; all of these have populations of fewer than twelve million people.81 canada’s population is thirty-two million and the united kingdom’s is sixty-seven million.82 79 n 43 12 80 wellbeing of future generations bill [hl] 2019-21. the uk bill has a similar structure to the welsh act including creating a future generations commissioner for the uk. however, in certain important respects it goes further. if public bodies do not follow the proposed uk commissioner’s recommendations the commissioner, following an investigation, may apply to court for an order that the public body comply with the recommendations or take such action as the court specifies. 81 the population of finland is 5.5 million; scotland 5.4 million; singapore 5.6 million; hungary 9.6 million; tunisia 11.8 million; gibraltar 33,700; new zealand 5 million; israel 8.6 million; reviewed article 108 the welsh government minister who sponsored the act, jane davidson, has said: “i am strongly of the belief that there are particular opportunities for a small country to be a test bed; to be smarter and more flexible than its larger neighbours. here cultural behaviour-change experiments can be piloted and new approaches forged.”83 it can indeed be easier for a small country to bring relevant stakeholders together and to make the links between production, consumption and well-being. leadership on sustainability issues enables a small country to extend its soft power. they can be influential through leading on sustainability ideas, which can then be rolled out to larger countries who can benefit from the prior experience of small countries. institutional change and scrutiny devices are one approach. by contrast, another approach to sustainability has seen attempts to pivot the management of the economy away from a focus on gross domestic product to instead consider a wider range of well-being objectives. new zealand has adopted a well-being budget with five priority areas to focus on areas where there are the greatest opportunities to wales 3.1 million and united arab emirates 9.8 million. ≤worldmeters.info≥ accessed 3 july 2020 82 source: <worldmeters.info> accessed 3 july 2020 83 davidson (n 6) 159. jane davidson was minister for environment and sustainability in wales from 2007 to 2011 where she was responsible for the welsh government agreeing to make sustainable development its central organising principle. reviewed article 109 make an impact.84 it also plans a work programme across government to embed well-being.85 there is evidence that having these institutional structures to promote sustainability in place seems to stimulate international cooperation on sustainability issues. the un sustainable development goal 17 provides: a successful development agenda requires inclusive partnerships — at the global, regional, national and local levels — built upon principles and values, and upon a shared vision and shared goals placing people and the planet at the centre.86 as a result, some of the governments with a progressive sustainability agenda scotland, new zealand, iceland, and wales have started collaborating in the wellbeing economy governments partnership.87 the main objective of the partnership is to promote collaboration and learning on sustainability issues and share experiences. since 2017, the future generations commissioner for wales has chaired the network of institutions for future generations of similar commissioners 84 new zealand government, ‘how does budget 2019 deliver a wellbeing approach?’ < https://www.budget.govt.nz/budget/2019/wellbeing/approach/how-does-b19-deliver.htm> accessed 7 may 2020 85 ibid 86 united nations, ‘goal 17: revitalize the global partnership for sustainable development’ < https://www.un.org/sustainabledevelopment/globalpartnerships> accessed 30 june 2020 87 wellbeing economy alliance, ‘wellbeing economy governments’ < https://wellbeingeconomy.org/wego> accessed 30 june 2020 https://www.budget.govt.nz/budget/2019/wellbeing/approach/how-does-b19-deliver.htm https://www.un.org/sustainabledevelopment/globalpartnerships https://wellbeingeconomy.org/wego reviewed article 110 or bodies with responsibilities for representing the needs of future generations across the globe. its general goals include collaborating and sharing best practice; encouraging the establishment of similar institutions worldwide; raising awareness of the need for well-being of future generations; and working with international organisations, such as the united nations, to protect “the interests, rights and wellbeing of future generations”.88 it would seem, therefore, that if a university law clinic is located in a nation which has some sort of institutional structure to safeguard the interests of future generations then there will also be international networks that will collaborate on learning about sustainability issues, which the clinics may benefit from indirectly. the experience of countries that have taken a lead on sustainability issues shows that this leadership can create an impetus to deepen their engagement; however, continued progress is by no means assured. the experiences of hungary and israel, in particular, show the need to develop a broad consensus that supports long-term preventative planning. in hungary, the commissioner for future generations operated from 2008 but the commissioner’s powers “were significantly reduced” in 2012 under a new constitution. it has been suggested that the reduction of the commissioner’s powers may have been due to a “deficit of political understanding of, or sympathy for, its goals and methods”, and may have resulted from its “notable 88 network of institutions for future generations, ‘2018 mission statement’ ≤ https://www.ajbh.hu/documents/2238847/2939231/mission+statment_final/1f2ba67d-5498c24e-9f4c-1bbec523e203≥ accessed 30 june 2020 https://www.ajbh.hu/documents/2238847/2939231/mission+statment_final/1f2ba67d-5498-c24e-9f4c-1bbec523e203 https://www.ajbh.hu/documents/2238847/2939231/mission+statment_final/1f2ba67d-5498-c24e-9f4c-1bbec523e203 reviewed article 111 interventions in private and governmental interests”.89 viktor orbán’s assumption of the premiership of the hungarian government in 2010 with his use of nationalist populism has resulted in a reduction on the checks and balances on the executive, including those designed to protect the interests of future generations.90 in israel the commission for future generation’s role was to give opinions on any legislation which affected future generations. this included holding an “effective veto” on legislation which did not comply with the interests of future generations. the commissioner could also initiate bills and “play a general advocacy role to parliament”.91 the commission was disestablished in 2016 apparently “for budgetary reasons”. however, it is thought that its wide-ranging powers may have been a factor in its demise.92 research into sustainable development agrees that there should be a broad cultural acceptance and understanding across national communities that prioritises operating and thinking about the long-term effects of policies and decisions.93 the experience of hungary and israel show that without a strong base of support for sustainability initiatives amongst communities and civil society then even if they 89 mark o’brien and thomas ryan, rights and representation of future generations in united kingdom policymaking (university of cambridge centre for the study of existential risk, may 2017) 23–4 90 bbc news, ‘leaders profile – hungary’ ≤ https://www.bbc.co.uk/news/world-europe17382823≥ accessed 30 june 2020 91 o’brien and ryan (n 89) 9 92 ibid 23–4 93 ross (n 56) chapter 3 https://www.bbc.co.uk/news/world-europe-17382823 https://www.bbc.co.uk/news/world-europe-17382823 reviewed article 112 have impact there will be a reversion back to governmental short-termism later. for example, the israeli commission was not the product of calls from civil society or popular demand. it was largely the idea of one politician, joseph (tommy) lapid, who served as the deputy prime minister and minister of justice. when he retired from politics, the commission lost its champion and ceased to exist shortly after his retirement.94 whilst in hungary, the president was anxious that the post of commissioner for future generations be as independent as possible, so he dispensed with the usual informal process of discussing with political parties as to who was the most suitable candidate. consequently, there was a lack of cross-party support for the eventual appointee.95 the more successful and long-lasting attempts at future generational representation, such as in finland and wales, have been established against a backdrop of significant support from civil society.96 this support is a further challenge to, or opportunity, for rebellious lawyering practice to build a consensus for a sustainability agenda amongst coalitions and networks. 94 jonathan boston, david bagnall and anna barry, foresight, insight and oversight: enhancing long-term governance through better parliamentary scrutiny (institute of governance and policy studies, victoria university of wellington, 2019) 127 95 sándor fülöp, ‘the hungarian experience’ in anna nicholl and john osmond (eds) wales’ central organising principle: legislating for sustainable development (iwa in association with wwf cymru and cynnal cymru/sustain wales, 2012) 74 96 natalie jones, mark o’brien and thomas ryan, ‘representation of future generations in united kingdom policy making’ futures, 102 (2018) 153, 161 reviewed article 113 although the future generations commissioner for wales has relatively weak powers and does not have a power to initiate or veto legislation in the same way as the israeli commissioner had, this might make the office itself more sustainable. the future generations commissioner for wales could be in a transitional position with greater powers accruing over time as the benefits of a more preventative, long-term approach become apparent, and support for increased powers builds across the political spectrum, as well as amongst communities and civil society. the chances of success will also be enhanced where civil society creates greater public awareness of sustainability issues.97 litigation involving the act the act through its use of “substantive and procedural commitment devices” has provided new tools for the legislature to engage in “forward-looking scrutiny” of the executive, as opposed to the more traditional approach of scrutinising something the executive has already done. 98 these attempts to get public bodies to think about the long-term enhance good governance. although there are a number of international examples of advisory bodies, scrutiny devices and institutional arrangements to get the public sphere to think long-term, there is “nothing as yet internationally, which is identical and as comprehensive and integrated as the welsh model.”99 however, 97 ibid 153, 161 98 boston, bagnall and barry (n 94) 11 99 n 51 reviewed article 114 the act has been less successful as a way of providing individuals with legally enforceable rights. this seems to be demonstrated by one of the first challenges which used the act as a ground for judicial review.100 a local authority wanted to close a school. the school had falling numbers and the local authority wished to move pupils to another school, which would involve some students in up to a sixty-minute drive from home. opponents of the closure argued that closing the school would “rip the heart out of the community” so the attractiveness, viability, safety and connectedness of the community would be undermined contrary to the act.101 despite these arguments the application was denied. mrs justice lambert said: “i do not find it arguable that the 2015 act does more than prescribe a highlevel target duty which is deliberately vague, general and aspirational and which applies to a class rather than individuals. as such, judicial review is not the appropriate means of enforcing such duties."102 100 r (b) v neath port talbot county borough council co/4740/2018 101 n 46 s 4 table 1 102 paul martin, ‘law to protect future generations ‘useless’’ (bbc, 15 may 2019) <https://www.bbc.co.uk/news/uk-wales-48272470 > accessed on 13 august 2019 https://www.bbc.co.uk/news/uk-wales-48272470 reviewed article 115 she went on to say that the closure of the school was "not inconsistent" with the local authority’s published “well-being objectives”, so was compliant with the act anyway.103 setting aside concerns about the strength of the campaigners’ case, as there was specific legislation on school closures, some have argued that there was no need to have recourse to the act which is a framework piece of legislation. perhaps the case shows traditional lawyering was not the best approach and a rebellious lawyering approach with its scepticism of litigation and preference for coalition building may have been more effective. there is evidence that the public in wales have difficulty accessing judicial review, in any event, as judicial review claims are comparatively low in wales compared to most regions of england.104 mrs justice lambert is doubtless right as far as the law is concerned: the act can only be used to challenge decisions on procedural grounds, such as a clear conflict with a local well-being plan, but the behavioural change through complexity thinking, which the act promotes, is difficult to challenge though legal process. the wellbeing duty placed on public bodies by the act was also held to be too general and 103 n 100 104 sarah nason, understanding administrative justice in wales: full report including executive summary (university of bangor, 2015) 19 reviewed article 116 aspirational in nature to be directly enforceable through judicial review in a further case.105 the former chief justice of england and wales, lord thomas of cwmgiedd, writing extra-judicially, has also labelled the act “aspirational legislation” and has said that the act should not have been enacted, as the duties are not drafted in a form which is enforceable and there is no mechanism for enforcement. this lack of enforcement mechanism is “detrimental to the rule of law.”106 105 r (the british association for shooting and conservation and others) v natural resources wales: co/4881/2018 106 lord thomas of cwmgiedd, ‘thinking policy through before legislating – aspirational legislation’ (the lord renton lecture institute of advanced legal studies) 21 november 2019 < http://www.statutelawsociety.co.uk/home/lord-thomas-text-aspirational-legislation-21-1119/ > accessed 30 june 2020. in his lecture lord thomas sets out five possible enforcement mechanisms: i. a court/tribunal where the commissioner (or an individual) can challenge a decision of a public body and the court/ tribunal adjudicates on the merits of whether the decision complies with the duty; ii. the court/ tribunal instead of deciding on the merits of compliance applies a judicial review test to the decision of the public body; iii. an ombudsman or similar person with an adjudicative role who decides the same questions; iv. a commissioner/auditor who considers whether the decision complies with the duty and is given the power to go to court to enforce compliance or has the power to enforce itself; v. a commissioner/auditor who simply reports on non-compliance or reports to an ombudsman. the uk future generations bill is similar to the welsh act in many ways. however, it proposes stronger enforcement measures. if a public body does not follow the proposed uk future generations commissioner’s recommendations, then following an investigation, the commissioner can apply for a court order to require the public body to comply with the recommendation or make such other order as the court specifies (s 26). an individual can apply to court when a public body breaches its obligations or refer the matter to the commissioner for an investigation (s 27). the court is also able to impose a fine on the public body (s 28). http://www.statutelawsociety.co.uk/home/lord-thomas-text-aspirational-legislation-21-11-19/ http://www.statutelawsociety.co.uk/home/lord-thomas-text-aspirational-legislation-21-11-19/ reviewed article 117 although there will be few cases where the act, as currently drafted, will be the basis of a successful challenge using an application for judicial review, it has been successfully used by individuals to challenge planning decisions.107 lawyers using a rebellious lawyering approach want duties that are capable of individual enforcement and are consistent with the rule of law. they want detail provided to accompany high level aspirational well-being duties, which, for example, fully spell out what is meant by a right to adequate housing. however, the impact on them of a lack of an enforcement mechanism through judicial review is small. they have a scepticism about the ability of legal process to positively affect their clients’ lives, as, amongst other things, this assumes their clients can access the legal process in the first place. the act is meant to promote a dialogic approach using integrated, participative and collaborative methods where interdependence of human and non-human stakeholders is recognised. a hierarchical approach such as judicial review where decisions are imposed through an adjudicative process will inevitably be rarely used by them. 107 this refers to a planning decision relating to cae calon, martletwy, nr narberth, pembrokeshire planning application ref:16/0549/pa. there was a prospective one planet development policy planning application, which was initially refused by the local planning authority. however, it was subsequently approved on appeal by the planning inspectorate in december 2017. of particular note is planning inspector nicola gulley’s comment: “in reaching this decision, i have taken into account the ways of working set out at section 5 of the well-being of future generations (wales) act 2015 and i consider that this decision is in accordance with the sustainable development principle through its contribution towards one or more of the welsh ministers well-being objectives set out as required by section 8 of the well-being of future generations act.” one planet council, ‘approved applications” < http://www.oneplanetcouncil.org.uk/approved-applications/> accessed 6 september 2020 http://www.oneplanetcouncil.org.uk/approved-applications/ reviewed article 118 a success for rebellious lawyering methods? the m4 relief road where the act clearly has had impact is in relation to the welsh government’s decision over the m4 relief road. this was a proposed motorway, south of the city of newport in south wales and was intended to tackle congestion around the city on the existing motorway. the proposed alternative route would have passed through an environmentally sensitive area known as the gwent levels. eventually, the first minister of the welsh government decided to reject the planned road on grounds of both cost and the environment.108 the decision could be seen as a vindication of a rebellious lawyering approach. a coalition had been built between a number of environmental groups and local residents who were also able to enlist the support of the future generations commissioner for wales. the decision gives some guidance as to how the welsh government will handle the trade-offs which are an inherent part of sustainable development. one of the act’s well-being goals is a “resilient wales” which is defined as: 108 decision letter of first minister of welsh government re: various schemes and orders in relation to the m4 corridor around newport 04/06/2019 <https://gov.wales/sites/default/files/publications/2019-06/m4-corridor-around-newportdecision-letter.pdf > accessed 13 august 2019 https://gov.wales/sites/default/files/publications/2019-06/m4-corridor-around-newport-decision-letter.pdf https://gov.wales/sites/default/files/publications/2019-06/m4-corridor-around-newport-decision-letter.pdf reviewed article 119 “a nation which maintains and enhances a biodiverse natural environment with healthy functioning ecosystems that support social, economic and ecological resilience and the capacity to adapt to change (for example climate change).”109 however, another goal is to create ‘a prosperous wales’, which is defined as: “an innovative, productive and low carbon society which recognises the limits of the global environment and therefore uses resources efficiently and proportionately (including acting on climate change); and which develops a skilled and well-educated population in an economy which generates wealth and provides employment opportunities, allowing people to take advantage of the wealth generated through securing decent work.”110 a coalition of ngo environmental groups, local campaigners and the commissioner for future generations was opposed to the relief road mainly for environmental reasons. all of this is consistent with a rebellious lawyering approach. however, there were other coalitions in favour of the relief road which argued that there were environmental arguments in favour of the new road. these included increasing congestion on the existing road leading to increased co2 emissions, as well as the 109 n 46 s 4 table 1 110 n 46 s 4 table 1 reviewed article 120 need for the new road for the economic development of the area. although there were local residents in favour of the relief road, the most high profile campaigners were business groups led by the confederation of british industry (cbi) wales who felt that it was needed in order to increase the prosperity of south wales as well as to improve the public transport infrastructure and that steps could be taken to significantly mitigate the environmental damage so that only 2% of the gwent levels would be affected.111 they also felt that increasing active travel would not be enough to solve the problem. it is submitted that the “prescriptively normative” principles which guide rebellious lawyering would mean that rebellious lawyers would presumptively side with those opposing the relief road. in 2016 newport had 7.08 tons of co2 emissions, which was in the third highest category of emissions in the uk.112 28% of households in newport are without a car or a van, which made the whole debate of limited relevance to them.113 it would also mean that expenditure on a major road project would not be addressing their transport needs, further exacerbating inequalities. rebellious lawyering is primarily a form of lawyering which seeks to address 111 leighton jenkins, ‘discover more about the m4 relief road and the benefits it presents to the welsh economy’ (cbi 23 april 2019) <https://www.cbi.org.uk/policy-focus/infrastructureand-energy/articles/cbi-calls-on-welsh-government-to-build-m4-relief-road/> accessed 14 august 2019 112 centre for cities, cities data tool <https://www.centreforcities.org/datatool/#graph=map&city=show-all&sortorder=high&indicator=co2-emissions-percapita\\single\\2016> accessed 14 august 2019 113 hugh mackay, campaign against the levels motorway ‘the m4 relief road: a failed idea out of step with 21st century wales’ (nation cymru, 3rd december 2018) <https://nation.cymru/opinion/the-m4-relief-road-a-failed-idea-out-of-step-with-21st-centurywales/ > accessed 14 august 2019 https://www.cbi.org.uk/policy-focus/infrastructure-and-energy/articles/cbi-calls-on-welsh-government-to-build-m4-relief-road/ https://www.cbi.org.uk/policy-focus/infrastructure-and-energy/articles/cbi-calls-on-welsh-government-to-build-m4-relief-road/ https://www.centreforcities.org/data-tool/#graph=map&city=show-all&sortorder=high&indicator=co2-emissions-per-capita%5c%5csingle%5c%5c2016 https://www.centreforcities.org/data-tool/#graph=map&city=show-all&sortorder=high&indicator=co2-emissions-per-capita%5c%5csingle%5c%5c2016 https://www.centreforcities.org/data-tool/#graph=map&city=show-all&sortorder=high&indicator=co2-emissions-per-capita%5c%5csingle%5c%5c2016 https://nation.cymru/opinion/the-m4-relief-road-a-failed-idea-out-of-step-with-21st-century-wales/ https://nation.cymru/opinion/the-m4-relief-road-a-failed-idea-out-of-step-with-21st-century-wales/ reviewed article 121 inequalities caused by the subordinated not being able to access legal proceedings, and not faring well when they do. in making these trade-offs between resilience and prosperity decision makers are also hampered by the fact that the future is, of course, uncertain. it is possible for example that at some future date electric cars will be so common that they will have lower carbon emissions than public transport alternatives such as trains. but it is only possible to rely on current data to decide where trends such as these are leading. if the decision had been taken to build the relief road campaigners said they would have brought an application for judicial review.114 however, as can be seen from r (b) v neath port talbot county borough council115 judicial review applications are determined on procedural grounds, and campaigners would have found that very difficult. in this context, there was an argument for saying that the relief road met the prosperity goal, and was in keeping with well-being plans, and the science over co2 emissions was contested between the campaign groups. a rebellious lawyering approach, particularly one adopted by a university law clinic, seems to have a lot to offer in this type of situation. as rebellious lawyers, clinic practitioners will be cautious about the use of litigation and will begin with the approach that other methods will be preferable. a university law clinic has the 114 ibid 115 n 100 reviewed article 122 opportunity to build an interdisciplinary coalition within the university, particularly in the scientific community, to input further evidence into what is often already a high-profile debate. developments in policy if the act as presently drafted is not capable of individual enforcement, it nevertheless has had significant impact in changing behaviour in some areas of policy. planning law has been re-designed to align with the sustainable development principle.116 as a result, “the planning system is to adopt a placemaking approach to plan making, planning policy and decision making.”117 this is a clear sign of commitment from the welsh government; however, aligning the planning rules to 116 planning policy wales edition 10, (welsh government, 2018) 117 ibid para. 2.9. “placemaking” is a holistic approach to the planning and design of development and spaces, focused on positive outcomes. it draws upon an area’s potential to create high quality development and public spaces that promote people’s prosperity, health, happiness, and well-being in the widest sense. placemaking considers the context, function and relationships between a development site and its wider surroundings. this will be true for major developments creating new places as well as small developments created within a wider place. placemaking should not add additional cost to a development, but will require smart, multi-dimensional and innovative thinking to implement and should be considered at the earliest possible stage. placemaking adds social, economic, environmental and cultural value to development proposals resulting in benefits which go beyond a physical development boundary and embed wider resilience into planning decisions. reviewed article 123 the policy will take time.118 this has the potential to create more cohesive communities which can be supported by the work of rebellious lawyers in clinics.119 education policy has also responded to the act. the education curriculum for 3 – 16-year olds will be significantly overhauled starting from 2022, which is designed to help practitioners to develop a more integrated approach to learning and which aligns to the sustainable development principle by promoting systemic thinking.120 analysis of the change from a sustainability perspective has called for: 118 n 43 chapter 5 119 since 2011 the welsh government has also adopted the one planet development policy. in order to meet the criteria of one planet development policy “…residents of one planet developments have to live quite differently (much more sustainably) than is the norm in the 21st century” welsh government, practice note one planet development technical advice note 6 (welsh government, october 2012) 2. the essential characteristics of one planet developments in the open countryside are that “they must have a light touch on the environment; be land based – the development must provide for the minimum needs of residents in terms of food, income, energy and waste assimilation in no more than five years; have a low ecological footprint – the development must have an initial ecological footprint of 2.4 global hectares per person or less with a clear potential to move to 1.88 global hectares per person over time…; have very low carbon buildings – these are stringent requirements, requiring that buildings are low in carbon in both construction and use; be defined and controlled by a binding management plan which is reviewed and updated every five years; and be bound by a clear statement that the development will be the sole residence for the proposed occupants” ibid. this is seen by the welsh government as a niche initiative and not something to scale up, max baring, ‘want to save the planet? move to wales’ (thompson reuters foundation, 2 august 2018) < https://news.trust.org/item/201808021000032bwnt#:~:text=the%20'one%20planet%20development%20policy,the%20resources%20they% 20are%20due.> accessed 6 september 2020. in 2018, 32 households had applied for planning permission under the one planet development policy. 120 hwb, ‘developing a vision for curriculum design’ ≤ https://hwb.gov.wales/curriculum-forwales/designing-your-curriculum/developing-a-vision-for-curriculum-design/#curriculumdesign-and-the-four-purposes≥ accessed 2 july 2020. it creates four purposes for learners to become: ambitious, capable learners, ready to learn throughout their lives; enterprising, creative contributors, ready to play a full part in life and work; ethical, informed citizens of wales and the world; and healthy, confident individuals, ready to lead fulfilling lives as valued members of society. it creates six areas of learning and experience: languages, literacy and communication; mathematics and numeracy; science and technology; humanities; health and well-being; and expressive arts. individual disciplines still have an important role; however, the six areas are seen as bringing them together to encourage strong https://news.trust.org/item/20180802100003-2bwnt#:%7e:text=the%20'one%20planet%20development%20policy,the%20resources%20they%20are%20due. https://news.trust.org/item/20180802100003-2bwnt#:%7e:text=the%20'one%20planet%20development%20policy,the%20resources%20they%20are%20due. https://news.trust.org/item/20180802100003-2bwnt#:%7e:text=the%20'one%20planet%20development%20policy,the%20resources%20they%20are%20due. https://hwb.gov.wales/curriculum-for-wales/designing-your-curriculum/developing-a-vision-for-curriculum-design/#curriculum-design-and-the-four-purposes https://hwb.gov.wales/curriculum-for-wales/designing-your-curriculum/developing-a-vision-for-curriculum-design/#curriculum-design-and-the-four-purposes https://hwb.gov.wales/curriculum-for-wales/designing-your-curriculum/developing-a-vision-for-curriculum-design/#curriculum-design-and-the-four-purposes reviewed article 124 “…more formal links between welsh schools and the businesses, representative bodies, public sector employers, charities and others, links with whom would improve authentic learning for children...”121 it is submitted that this connected approach to primary and secondary education will provide a better grounding for students before embarking on clinical legal education, as students will have had a greater amount of experiential learning before starting at university.122 communities of practice as the act cannot be used as the basis for challenging decisions under judicial review efforts need to be directed towards coalition building. gilligan kubo argues for non-hierarchical communities of practice groups of people who share a concern or a passion for something they do and learn how to do it better as they interact and meaningful links between disciplines. there is a cross-cutting focus in literacy, numeracy and digital competence. 121 calvin jones, fit for the future education in wales: white paper for discussion (cardiff business school and the future generations commissioner for wales, 2019) 22 122 although not arising directly as a result of welsh government policy, although drawing inspiration from it, there is an interesting higher education and sustainability initiative taking place in wales. the black mountains college (bmc), which is based in the brecon beacons national park, will launch the bmc degree – a bachelor of arts and science degree in september 2022, which will address the challenge of living sustainably. it will use short immersive teaching blocks with modules taught sequentially; spending time in nature; class sizes of twenty students; an interdisciplinary approach integrating information using all senses; a final year project working on a real-world problem; collaboration between students, tutors, industry partners and the local community black mountains college, ‘the bmc degree’ < https://blackmountainscollege.uk/study/higher-education/> accessed 6 september 2020. https://blackmountainscollege.uk/study/higher-education/ reviewed article 125 regularly as a way of encouraging civil society to promote sustainable development.123 gilligan kubo says that communities of practice using complexity thinking will support social learning – the theory that new behaviours can be acquired by observing and imitating others – “and encourage cognitive restructuring which can lead to behaviour change”.124 among the barriers to civil society promoting sustainable development are a lack of understanding of the need for behavioural change to support sustainable development, which is in turn linked to a lack of understanding of the systemic nature of such development, as well as the lack of staff capacity.125 this lack of staff capacity is an issue not just for civil society but for all sectors: how to create the headspace to understand sustainable development and develop behavioural change? most services catering for the needs of the subordinated are very busy with their clients and struggle to find the time for this type of developmental work. to work optimally, gilligan kubo sees communities of practice encouraging the engagement of diverse stakeholders, so that their different voices and perspectives are heard. for example, this would include voluntary sector staff, managers, 123 gilligan kubo (n 61) 200. an example of a community of practice, in the form of the townhill children’s zone, is discussed in the case study on the swansea law clinic where a law clinic, schoolteachers, medics, youth workers and a community centre are working together to achieve sustainability objectives. 124 gilligan kubo (n 61) 200 125 ibid 207 reviewed article 126 volunteers, service users, local government and local community representatives.126 however, given their lack of staff resource and how busy they are servicing the everyday needs of their clients, they will only want to engage in communities of practice when there is something of practical benefit to them.127 it is difficult to demonstrate quantifiable benefits to those in the voluntary sector interested in being involved in communities of practice using a complexity theory approach where outcomes cannot be closely predicted or guaranteed.128 this is where having legislation which seeks to protect the interests of future generations can be advantageous. the well-being of future generations (wales) act 2015 binds forty-four public bodies in wales, including the welsh government and local authorities. these public bodies will only wish to fund and work with the voluntary sector if they are striving to achieve the seven well-being goals and using the “five ways of working” under the act. the welsh government has established and provides administrative support to regional advice networks where advice agencies can discuss areas of mutual interest and set the agenda themselves. this provides a suitable forum for the advice sector to develop their communities of practice. it can provide support in creating the “headspace” for civil society to think about sustainability issues and promote the need for behavioural change. it could also be a way of engaging in coalition building which is not only central to rebellious 126 ibid 211 127 ibid 203 128 ibid 19 reviewed article 127 lawyering practice, but also a way to build support for sustainability approaches amongst civil society. this creates demonstrable benefits for the voluntary sector when deciding whether to engage in communities of practice. public service boards another reason and opportunity for civil society to be well organised within the context of the well-being of future generations (wales) act 2015 is the act’s provision for public service boards.129 these boards consist of representatives of the local authority, health board, the local fire and rescue service and the natural resources body for wales.130 they must also invite, among others, at least one body representing relevant voluntary organisations.131 public service boards are required to prepare and publish a local well-being plan setting out their local well-being objectives and the steps it proposes to take to meet them.132 this offers an opportunity for communities of practice to impact on local policy. if they can achieve consensus through their dialogue the community of practice can speak with one voice through its representative on public service boards. 129 n 46 s 29 130 ibid s 29 131 ibid s 30 (1) (e) 132 ibid s 39 reviewed article 128 sustainability and clinical legal education this section will look at how university law clinics can apply rebellious lawyering principles to achieve sustainability objectives. it will consider some of the urgent issues around developing attributes amongst students in order to make them effective sustainability practitioners. according to un educational scientific and cultural organisation (unesco), higher education is seen as having a particular role to play in promoting sustainability: “higher education should emphasise experiential, inquiry-based problemsolving learning, interdisciplinary systems approaches and critical thinking.”133 there is a clear synergy here between clinical legal education, which is a form of experiential, inquiry-based, problem-solving approach using critical thinking, and interdisciplinary learning. this is so despite the fact that many law schools find the interdisciplinary approach challenging. the way many universities are governed with different subjects managed in different faculties and different cost centres often 133 unesco, ‘unesco decade of education for sustainable development (2005 – 2014) draft international implementation scheme (unesco 2004)’ cited in paula jones, david selby and stephen sterling ‘introduction’ in paula jones, david selby and stephen sterling (n 35) 2. unesco have also produced learning objectives for the sustainable goals ≤ https://unesdoc.unesco.org/ark:/48223/pf0000247444≥ accessed 2 july 2020 https://unesdoc.unesco.org/ark:/48223/pf0000247444 reviewed article 129 acts as one of the main inhibitors to interdisciplinary learning. these challenges can be overcome, amongst other things, by an institution-wide sustainability strategy and external stimuli such as external grants.134 sustainability can be a value-laden ontology and there have been fears within the academy that an uncritical embrace of the sustainability agenda is a threat to academic freedom. when the higher education funding council for england (hefce) circulated their consultation document sustainable development in higher education they received the following response from dr peter knight, vice chancellor of the university of central england: “it is one of the most pernicious and dangerous circulars ever to be issued. it represents the final assault on the last remaining freedom of universities…it is not the job of universities to promote a particular orthodoxy; it is their role to educate students to examine critically policies, ideas, concepts and systems, then make up their own minds.”135 there are a number of responses which could be made to this. first, sustainability itself does not promote any orthodoxy among economic models. for example, there are those who think that neo-liberal marketisation is unsustainable and that there 134 paula jones, david selby and stephen sterling ‘introduction’ in paula jones, david selby and stephen sterling (n 35) 10 11 135 peter knight, ‘unsustainable developments’ (the guardian, 8 february 2005) reviewed article 130 has to be a fundamentally new approach taken to the economy. however, there are those who think that if capitalism is restructured and appropriately regulated it can operate on a sustainable basis. if neo-liberal marketisation is not examined and critiqued, then there is a risk of inadvertently promoting it as the orthodoxy, i.e. the only way to organise an economy, so it is necessary to look at alternative economic models. secondly, tutors should demonstrate “epistemic humility”: being humble with their assumptions about understanding. if a student does not think climate change is anthropogenic in nature then tutors need to engage with this challenge meaningfully, and not be dismissive. it should be viewed as an opportunity for critical discussion, which is beneficial for everyone. it will also mean that counterarguments can be foregrounded and discussed. even issues such as climate change, whose existence cannot be seriously contested as 97% of climate scientists believe that there is global warming, can still be discussed with students because responses to it can vary from a fundamental reorganisation of the economy to less challenging adaptations or improvements in technology.136 136 john cook and others, ‘consensus on consensus: a synthesis of consensus estimates on human-caused global warming’ environmental research letters vol. 11 no. 4, (13 april 2016) reviewed article 131 there are a number of general principles frequently used in sustainability pedagogies including participatory and inclusive education processes, transdisciplinary cooperation, experiential learning and the use of environment and community as learning resources; all of which involve an interactive enquiry-based approach to teaching and learning.137 all these requirements have a natural affinity not only with clinical legal education but also with rebellious lawyering practice. whatever students’ stance on sustainability, and climate change in particular, they should be encouraged to develop a “personal environmental ethic”.138 in developing this “personal environmental ethic” legal clinicians should see this as integral to developing students’ well-being. consider that there has been an “extinction of experience” in childhood.139 in the 1950s 40 per cent of british children regularly played in natural areas. this has dropped to 10 per cent today, with 40 per cent of children never playing outdoors at all.140 on the basis of this observation, it is reasonable to assume that many, if not the majority, of legal clinical students have had little experience of the outdoors. this is significant for two reasons. 137 debby cotton and jennie winter, ‘it’s not just bits of paper and light bulbs’: a review of sustainability pedagogies and the potential for use in higher education in paula jones, david selby and stephen sterling (n 35) 41 42 138 joy palmer and philip neal, the handbook of environmental education (routledge 1994) 19 139 masashi soga and kevin galston, ‘extinction of experience: the loss of human–nature interactions’ (2016) 14(2) frontiers in ecology and the environment 94 101 140 isabela tree, rewilding (picador 2018) 294 reviewed article 132 first, one in six of the uk population suffers from depression, anxiety, stress, phobias, suicidal impulses, obsessive compulsive disorder or panic attacks – sometimes in combination. anxiety with depression is the most common disorder.141 e.o. wilson called the human connection with nature “biophilia”, which he defined as the “rich, natural pleasure that comes from being surrounded by living organisms”.142 studies have shown that symptoms of common mental disorders are alleviated with time spent in nature, as well as an increase in positive mood.143 secondly, studies show that children who spent time in green spaces between the ages of seven and twelve tend to think of nature as magical.144 as adults they are more concerned about lack of nature protection, while those who have no such experience tend to be more indifferent to its loss.145 they will therefore have a less developed “personal environmental ethic”.146 case study: sustainability and the swansea law clinic in order to participate in a clinic of this transformative nature, students need to be supported to put the issues in context whether through pre-reading and/or a suitable 141 william bird, natural thinking (natural england and rspb 2007) 7 142 edward osborne wilson, biophilia: the human bond with other species’ (harvard university press, 1984) 157: 143 tree (n 140) 295 144 ibid 294 145 ibid 294 146 john baines, ‘learning to live on planet earth. the environmental approach to education’ (1986) 5(1) environmental education and information reviewed article 133 induction programme, in order to develop their capacity to reflect on such issues.147 they need to be aware of major challenges such as the climate crisis, loss of biodiversity, use of plastics, inequalities, pandemics and the effect of automation, and how political, economic, social and cultural forces contribute to these issues. they also need to be encouraged to think about their own personal vision as to what a sustainable world would be like, which puts into a profound sustainability context the rebellious lawyer’s idea of a good life. as sustainability clinics are aiming to promote systemic change, it is necessary to examine with students how all these issues intertwine. the clinic’s induction training has to begin by making the links. for example, examining the relationship between environmental degradation, inequality and gender. thus, student advisers may not necessarily realise that research studies have shown the single most important thing can be done is to increase communities’ resilience to natural disaster is reducing educational inequality between the sexes.148 the ideal induction programme, as at swansea, seeks to develop students’ perceptual way of thinking through thinking about client care. it explores various emotional states, how they may be identified and how a distressed client may affect 147 adrian evans, ‘greenprint for a climate justice clinic: law schools’ most significant access to justice challenge’ (2018) 25(3) international journal of clinical legal education 7, 13 148 paul hawken (ed), drawdown: the most comprehensive plan ever to reduce global warming (penguin, 2018) 82 reviewed article 134 the students’ own well-being, and what they should do to promote their well-being. the conceptual way of thinking is developed through building on the students’ existing knowledge of legal doctrine. the practical way of knowing is developed through the acquisition of professional skills. as swansea law clinic has small businesses as well as individuals as clients, students’ commercial awareness around sustainability issues can be developed. the united kingdom has passed legislation setting a goal of net zero carbon emissions target by 2050.149 in order to meet this target companies will need to develop plans, so students need to be aware that climate change is, in certain circumstances, a material financial risk. for example, it is estimated that net zero emissions will lead to 80% of coal assets and half of developed oil reserves being stranded.150 if they are to have the commercial acumen to meet the needs of clients in the future they need to know the risks and opportunities inherent in transitioning. they also need to be aware of how central a lawyer’s role can be in formulating business practice and company policy. when surveyed, 93% of in-house lawyers globally said when their company had a sustainability plan, they led, contributed or influenced the company’s efforts.151 therefore, there is a need for university law 149 climate change act 2008, s 1, as amended by the climate change act 2008 (2050 target amendment) order 2019, si 1056, s 2 150 mark carney, ‘today’ (bbc radio four, 30 december 2019) 151 association of corporate counsel, ‘2019 acc chief legal officers survey corporate social responsibility’ (30 january 2019) < https://www2.acc.com/governance/upload/new-acchttps://www2.acc.com/governance/upload/new-acc-esginfosheet.pdf?_ga=2.233523102.1403026587.1588687862-40775737.1588687862 reviewed article 135 clinics to promote the development of lawyers who have a good grasp of sustainability principles and some experience of applying them. given the scale and complexity of issues such as climate change and growing inequalities, students’ creativity needs to be nurtured and developed in order to develop the innovative solutions required. some of swansea law clinic’s students are working towards module credits as part of their undergraduate law degree. they can opt out of the normal assessment, and, with agreement, work on a project of their own choosing on some aspect of how the clinic can contribute to well-being goals as set out in the well-being of future generations (wales) act 2015 and/or local well-being plans. creativity is something very difficult to teach, but innovative approaches to litigation are increasingly a form of sustainability activism, particularly when it comes to climate change. raising awareness of these developments could spark students’ creativity. innovative litigation strategies, such as clientearth’s challenge to the uk government to bring forward new clean air quality plans, are considered.152 esginfosheet.pdf?_ga=2.233523102.1403026587.1588687862-40775737.1588687862> accessed 5 may 2020 152 r (on the application of clientearth) v secretary of state for the environment food and rural affairs [2015] uksc 28 https://www2.acc.com/governance/upload/new-acc-esginfosheet.pdf?_ga=2.233523102.1403026587.1588687862-40775737.1588687862 reviewed article 136 the growing body of future generations’ strategic litigation around the world is often youth-led so it is not only a subject worthy of study in its own right but also can be an effective way of engaging students. the issues facing future generations such as climate change, rising inequalities, increasing automation, etc. are so complex and, in many cases, novel that the fresh perspectives that students can provide are valuable. models of youth-led leadership are empowering and can help students develop their confidence in putting their ideas forward. climate action lawsuits have spread to twenty-eight countries around the world with more than 1,300 actions brought since 1990.153 these lawsuits have been placed into two categories: strategic and routine cases.154 strategic cases often see the “parties seek to leverage the litigation to instigate broader policy debates and change”.155 routine cases are less visible cases, dealing with, for example, planning applications. they use original climate change arguments. these might influence governments and private bodies, but that is an incidental purpose.156 such cases are creative in the way they use human rights arguments and draw on scientific 153 joana setzer and rebecca byrnes, global trends in climate change litigation: 2019 snapshot (centre for climate change economics and policy, grantham research institute on climate change and the environment and sabin center for climate change law at columbia law school, july 2019) 154 ibid 2 155 setzer and byrnes (n 153) 2 156 ibid reviewed article 137 advancements to provide causal links between particular sources of emissions and climate-related harm.157 although the youth-led action against the united states federal government for violation of constitutional rights to a safe climate was eventually thrown out on admissibility grounds in juliana v. united states158 it could be seen to have value for its impact on policy debates. although rebellious lawyering practice views litigation as just one tool in a toolkit to support oppressed communities, and is sceptical about its accessibility in many cases, this nuanced use of litigation as a way of advancing policy discussion or introducing new arguments into legal process can be seen as a part of rebellious lawyers’ armament. at swansea law clinic, student advisers are required to safeguard their own mental and physical well-being, as well as develop their own well-being plans. during induction, they are advised as to stress reduction techniques which includes spending time in nature. this has the advantage of not only offering support if they are experiencing difficulties managing their stress levels but also, as research shows that time spent in nature positively affects attitudes towards it, they will have an enhanced awareness of the importance of biodiversity.159 however, it has to be recognised more needs to be done in this regard. in order to profoundly affect 157 ibid 158 juliana v united states us court of appeals ninth circuit, no. 18-36082 [2020] 159 bird (n 141) 7 reviewed article 138 attitudes towards nature, experiences of nature need to be integrated into education from childhood and at present, this is just one issue covered in the induction programme. involvement in environmental issues exacts a price in emotional labour. what is more, this collective emotional toll appears to be growing.160 terms have been coined to describe the emotional experience of environmental collapse such as “solastalgia”, which is when your “endemic sense of place is being violated”;161 “eco anxiety” which has been defined by the american psychological association as chronic fear of environmental doom;162 and “ecological grief” which has been defined as “the grief reaction stemming from the environmental loss of ecosystems by natural and man-made events.”163 students are required to reflect on how their experiences in the clinic have affected their values in a personal reflection, which is part of the self-examination needed in rebellious lawyering practice. here students have an opportunity to reflect on the development of their “personal environment ethic” as part of this assessment, so 160 britt wray, ‘prequel: at the beginning there was change’ (climate of emotions: supporting youth wellbeing online conference < https://www.youtube.com/watch?v=fpkew1ce7ni> streamed live 21 april 2020, accessed on 29 april 2020) 161 glenn albrecht cited in nicola ross, from ‘language, nature and the great remembering’ the journal of wild culture (16 september 2017) 162 ashlee cunsolo and others (eds) mental health and our changing climate: impacts, implications, and guidance (american psychological association, climate for health and ecoamerica 2017) 29 163 kriss kevorkian cited in jordan rosenfeld, ‘facing down “environmental grief”: is a traumatic sense of loss freezing action against climate change?’ scientific american (philadelphia, 21 july 2016) https://www.youtube.com/watch?v=fpkew1ce7ni reviewed article 139 they also can self-scrutinise their behavioural change. in encouraging students to do this, law clinics must recognise that they will need to support them through their emotional reactions. whilst most within the sustainability community talk of the need for adaptation or mitigation when it comes to climate change there is a yet more radical strand that talks of the need for “deep adaptation”.164 this approach does not seek to engage with methods of climate adaptation as it is premised on the view that social collapse, as a result of climate change, is now almost inevitable and human extinction possible.165 this approach requires moving on from the concept of sustainability, and instead examining what near-term societal collapse will look like.166 the risk is that the complex nature of global sustainability issues could lead students to develop feelings of fear, hopelessness and despair, which in turn causes paralysis. this state needs to be acknowledged and contained if it is to lead on to effective action. many law clinics already practise containment methods such as mindfulness techniques. what is also needed is the space to process these feelings leading to action, which swansea law clinic aims to do through personal reflection. clinics in 164 jem bendall, ‘deep adaptation: a map for navigating a climate tragedy’ (iflas occasional paper 2, 27 july 2018) < http://lifeworth.com/deepadaptation.pdf> accessed 1 may 2020 165 ibid 20 166 melinda harm benson and robin kundis craig. ‘the end of sustainability’ 27 society and natural resources (2014) 777 http://lifeworth.com/deepadaptation.pdf reviewed article 140 their nature are action-led, and the feeling of taking action is one of the most effective ways of countering the various forms of eco-anxiety. swansea law clinic students are also given a grounding in the principles of the act as part of their initial induction and training, which makes it clear that university law clinics have a role in developing the act’s principles. public service boards have found the production of local well-being plans difficult to manage and as a result are playing it “safe” and using arguably weak forms of sustainable development using a narrow form of data.167 there has also been found to be a compliance culture around the production of local well-being plans.168 university law clinics have rich sources of data on the reality of living in their local communities, which can inform local well-being plans. they are also often in a position to use anonymised client stories or narratives. use of stories is a technique often used in rebellious lawyering practice and can be used by law clinics as a technique to enable people to empathise with subordinated communities.169 use of locally connected “icons” has also been shown to be the most effective way of 167 alan netherwood, andrew flynn and mark lang well-being assessments in wales: an overview report (netherwood sustainable futures, cardiff university and mark lang consulting 2017) 3 168 ibid 4 169 richard owen, ‘gathering the excluded voice: the txt inside/txt outside project’ (2014) 21 (1) international journal of clinical legal education 5 41 reviewed article 141 engaging people in sustainability issues.170 use of stories and “icons” is a product of the close relationship university law clinics have with their local communities, and their insights into how “social haunting” might act as a brake on behavioural change, also have the potential to enhance local well-being plans. local area coordination the clinic is located within the local authority area of swansea council. the council is already innovating in the delivery of its service in a way which aligns with the act. local area coordination was a programme initially developed in western australia in 1988 in response to the urgent need to find new and innovative approaches for supporting people with learning disabilities and their families.171 it has been taken up in new zealand, ireland and other parts of the united kingdom, and the idea has expanded to include supporting people facing all types of challenge. swansea council has set up a network of local area coordinators and the clinic has been working with the coordinator for the town of gorseinon. the coordination approach is designed to take a preventative and collaborative approach in tackling some of the more deep-seated health and social care challenges the community faces, 170 saffron j. o’neill and mike hulme, ‘an iconic approach to representing climate change’ (2009) 19 global environmental change 402–410 171 ralph broad, local area coordination: from service users to citizens (the centre for welfare reform, 2012) 12 reviewed article 142 such as an ageing population which is economically pressed during a time of austerity. local area coordinators are embedded into the community, and work with all demographics to reduce dependence and build long-term resilience. an evaluation of the local area coordination in swansea and the neighbouring local authority area found: “there is an emphasis on nurturing trusting and supportive relationships with individuals and families which can take time to develop, building reliance and supportive connections to reduce the risk of future crisis and service dependency.”172 service users are not viewed as passive recipients but as assets who have natural authority and are partners in the project of building community resilience. swansea law clinic has been involved on a monthly basis in a community pop-up café and one stop advice shop which was initially established by the local area coordinator. the café is run by local people and involves local elected officials, faith leaders, local based police officers, local authority officials and up to twenty different advice agencies. this enables the clinic to give a more holistic service to clients and embodies principles of collaboration between and integration of services, all of which are part of sustainability agendas and rebellious lawyering. for example, 172 caring together and swansea university, local community initiatives in western bay: formative evaluation summary report (april 2016) 3 reviewed article 143 when advising a client on a potential unfair dismissal claim the advice session with the clinic will end by advising the client to mitigate their loss. then the client will be referred on immediately to a back-to-work adviser who will assist the client on the spot to find work. the clinic will further assist the client by showing them how they need to evidence their work searches for the employment tribunal. the local area coordination programme is not a requirement under the act but is further evidence of how the act has brought about behavioural change. finally, the clinic is also part of the townhill children’s zone. this again is a multiagency initiative which serves an economically challenged part of the city. it consists of the head teachers of the local schools, medical practitioners who serve the locality, community youth workers, a local youth centre, as well as the clinic. it draws inspiration from the harlem children’s zone and has as its aim to increase the number of children from the locality who attend university. its focus is very much on long-term planning, which aligns with the act’s well-being goals, as well as collaboration and the integration of services. again, the construction of local networks is also consistent with rebellious lawyering practice. conclusion rebellious lawyering deepens understanding of communities, builds broad-based coalitions, envisions a better life and strengthens awareness of how legal practice reviewed article 144 relates to big structures. as such, it is a form of sustainability legal practice, which can be practised in any jurisdiction. its “normative principles” provide guidance to a university law clinic seeking to achieve sustainability objectives regardless of location, and in efforts to address the climate emergency at a local level. the welsh experience also shows that where sustainability legislation does not exist academia and civil society – and university law clinics exist at the intersection of both – can have an important leadership role in bringing it about. the value added to rebellious lawyering practice by sustainability legislation is that it creates a structure to improve long-term public decision making that extends beyond the electoral cycle. the well-being of future generations (wales) act 2015 only seems to provide a mechanism for individual enforcement in exceptional cases, which deprives traditional public lawyers of a fundamental tool of their trade, judicial review. this is as much concern to rebellious lawyers, as it is to lawyers using a traditional approach. if challenges based on the act face continuous defeat in the courts the public may become cynical about its effectiveness. the experience of israel and hungary shows that sustainability initiatives cannot be maintained if they lack broad public support. however, the impact of a lack of an individual enforcement mechanism on rebellious lawyering practice will be small, even if such lawyers and law clinics do need to work with others to get the act amended so that an individual enforcement mechanism is inserted into it. the present situation can reviewed article 145 be viewed as a valuable transitional period, which can be used to build up support for the act across civil society. whilst it is hard to quantify change, and the application of the act by public bodies is at an early stage, there is much evidence it has already improved policies and behaviour, as shown by changes to planning and education policy in wales. it has also brought about behavioural change in local authority operational practice as shown by the local area coordination programme. the lesson from wales is that it takes time for sustainability legislation to be embedded across different policy areas, as a result of the complexity of systemic thinking. time may not be on the side of any current species, as in 2018 the un intergovernmental panel on climate change – which only deals with one aspect of sustainability said urgent and unprecedented action would need to be taken in the twelve years if climate catastrophe is to be averted.173 so the challenge for the clinical legal education movement is to absorb and apply these lessons rapidly. 173 v. masson-delmotte and others (eds), global warming of 1.5°c.an ipcc special report on the impacts of global warming of 1.5°c above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty (un intergovernmental panel on climate change, 2019) 220545d_jcle_july 2007 comp “how do you feel about this client?” – a commentary on the clinical model as a vehicle for teaching ethics to law students kevin kerrigan1 introduction this article explores why law clinics can be the most creative, exciting and productive way of inculcating knowledge and understanding of ethical issues and why sometimes they are not.2 i am concerned to understand what methods can be employed to successfully engage students with ethical questions in the context of their clinical case work. i am also concerned to avoid the complacent view that simply by exposing students to real or realistic cases we can ensure deep appreciation of ethical concerns.3 by ethics here i mean not only understanding of the relevant professional lawyer codes but also a broader and deeper engagement with what it means to be a lawyer and the moral attitudes, decisions and outcomes implicit in legal practice.4 it is first essential to acknowledge that there is no universal agreement on the superiority of clinical “how do you feel about this client?” a commentary on the clinical model as a vehicle for teaching ethics to law students 7 1 kevin kerrigan, reader in law, and student law office supervisor, northumbria university, newcastle upon tyne, united kingdom. this article is based on a paper delivered at the international journal of clinical legal education conference in melbourne, australia, june 2005. i am grateful for the helpful comments from fellow delegates and in particular the kind assistance of mary anne noone and judith dickson of la trobe university, melbourne. errors and omissions remain my responsibility. 2 for discussion of ethics in the context of clinic see moliterno, “on the future of integration between skills and ethics teaching – clinical legal education in the year 2010”, 46 j. legal educ. 67 (1996); myers, “teaching good and teaching well: integrating values with theory and practice”, 47 j. legal educ. 404 (1997) 3 my discussion relates mainly to live client models, although part of my argument is that live client clinical work needs to be informed and supplemented by classroom based and simulated activities. 4 in this context see bennett, “making moral lawyers: a modest proposal”, 36 cath. u. l. rev 45 (1986) which attacks the “mythical separation of law and morality”. methodology for teaching legal ethics. claims as to the necessity of a clinical approach are numerous and longstanding.5 however, there is a body of skeptical comment which remains to be convinced6 or has reservations as to the ability of clinic to deliver what it promises.7 robertson8 has argued that clinics, at least in australia, offer restricted places for students for limited time periods and have numerous learning outcomes of which ethics learning and experience may only be a small part. he maintains that “high quality learning outcomes in ethics cannot be guaranteed” and are “more likely to be achieved when the learning environment is crafted to ensure that students engage with these with the level of attention they require.” these concerns coupled with the rationing of clinic due to its expense means that, “… there are doubts about the extent to which clinics can be relied upon to provide quality learning opportunities in legal education generally, and in the development of ethical competencies in particular.”9 i do not wish to deny the existence of problems with using clinic to teach ethics10 and i certainly agree with the notion that clinic does 8 journal of clinical legal education july 2007 5 jerome frank, way back in 1933, was arguing that, “professional ethics can be effectively taught only if the students while learning the canons of ethics have available some first-hand observation of the ways in which the ethical problems of the lawyer arise and of the actual habits (and ‘mores’) of the bar.” jerome frank, “why not a clinical lawyer-school?”, 81 u. pa. l. rev. 907 at page 922. see also neil gold, “legal education, law and justice, the clinical experience”, 44 sask. l. rev 97; andy boon, “ethics in legal education and training: four reports, three jurisdictions and a prospectus” (2002) 5 legal ethics 34; and peter joy, “the ethics of law school clinic students as student lawyers” 45 south texas l. rev. 815 at page 836-7: “by interacting with clients, lawyers, and others in role as lawyers, clinic students begin the process of truly becoming lawyers. in no other course are law students able to confront their own behaviour and relationships with others. and, unlike other law school subjects, legal ethics or professional responsibility is about a lawyer’s relationships with others.” 6 see robertson, “challenges in the design of legal ethics learning systems: an educational perspective” [2005] legal ethics 222 at page 233: “… the case for clinics as sites for deep, authentic learning experiences in legal ethics would always need to be demonstrated conclusively. unfortunately, some of the literature that celebrates the contributions of particular clinics to ‘deep learning’ in ethics provides little in the way of hard evidence to back the claims.” there is some hard evidence at least regarding the impact of simulated clinical methodology on moral development. steven hartwell reported a research project with law students using kohlberg’s defining issues test whereby they were tested at the beginning of a simulation ethics course and again at the end. the intervening period was spent in small group nondirective discussions of realistic ethical dilemmas and reading articles on legal ethics. during the three years of the study the dit mean score rose respectively 10 points, 14 points and 10 points, all extensive improvements. he found no significant improvement when conducting the same test with other simulated classes such as negotiation and interviewing and counselling. i am not aware of a dit study using live client clinic students. hartwell declined to undertake one due to the small size of the clinic classes and his belief that live clinic would not significantly improve students’ moral reasoning. see steven hartwell, “promoting moral development through experiential teaching” 1 clinical l. rev. 505 (1994–1995). 7 moliterno has reported, “… concerns by classroom professional responsibility teachers that clinicians pay too little attention to the law of professional responsibility and … concern by clinicians that classroom professional responsibility teachers are out of touch with the day-to-day rigors of practice, especially poverty practice.” james e. moliterno, “in house live client clinical programs: some ethical issues”, 67 fordham l. rev. 2377. steven hartwell, supra note 6, has argued that live client experience may be too sporadic to ensure consistently high quality ethical learning: “although moral questions certainly do arise spontaneously in clinic work, they do not arise with the same frequency as they arise by design in a professional responsibility course.” steven hartwell, “promoting moral development through experiential teaching” 1 clinical l. rev. 505 (1994–1995). 8 supra note 6 at page 233. 9 ibid. 10 nevertheless, some of robertson’s concerns are structural or resource-driven and are likely to vary between institutions. my own university, for example, places clinic at the heart of its exempting law degree. clinic is a compulsory year-long module for all students in years 3 and 4 of the programme. there is also a significant and expanding clinical element in earlier years. arguments about clinic’s lack of capacity to deliver ethics education seem to be more a case for enhanced clinical resources than a critique of the clinical model itself. not guarantee good ethics education but i find myself firmly in the clinic-is-best camp, or rather clinic-can-be-best camp. the key reason for this is that clinical education uniquely places the learning of ethics in the context of real life practice. it provides students with the opportunity to grapple with the laws, rules, principles and values of the legal profession not as an external observer but as a participant and stakeholder.11 it follows that i think live client work is an essential component of an effective clinical ethics education. this article seeks to identify ways that ethics education in clinic might retain its essential spontaneous value while being structured, rigorous and consistent. (lack of) external imperatives to deliver high quality ethics education this section explains the dearth of regulatory requirements in this jurisdiction for any meaningful ethics content in the law curriculum. my own law degree is a useful model for illustrative purposes as it jumps to the tune of both undergraduate and postgraduate legal education requirements in england and wales.12 for the undergraduate stage the professional bodies in england and wales have agreed in consultation with the law schools and scholarly associations a joint statement of the outcomes required by any programme which exempts graduates from the academic stage of legal education for practice as a solicitor or barrister.13 a ‘qualifying law degree’ (qld) will expect students to achieve at least the minimum level of performance in the quality assurance agency benchmark standards.14 there is no explicit requirement for a qld to contain any ethics component as such. the nearest the joint statement comes to such a requirement is: “students should have acquired: i. knowledge and understanding of the fundamental doctrines and principles which underpin the law of england and wales particularly in the foundations of legal knowledge; ii. a basic knowledge of the sources of that law, and how it is made and developed; of the institutions within which that law is administered and the personnel who practice law; iii. the ability to demonstrate knowledge and understanding of a wide range of legal concepts, values, principles and rules of english law and to explain the relationship between them in a number of particular areas.”15 “how do you feel about this client?” a commentary on the clinical model as a vehicle for teaching ethics to law students 9 11 i agree with peter joy when he says, “perhaps the greatest advantage of real client clinical legal education courses over traditional courses or simulation courses is the role socialization law students undergo and the exposure to ethical issues in role as lawyers.” peter joy, supra note 5. 12 the llb exempting degree integrates the academic stage of legal education (the qualifying law degree) with the vocational stage (the legal practice course for intending solicitors or the bar vocational course for intending barristers). 13 a joint statement issued by the law society and the general council of the bar on the completion of the initial or academic stage of training by obtaining an undergraduate degree, 2001. 14 benchmark standards for law degrees in england, wales and northern ireland, qaa. see www.qaa.ac.uk. 15 joint statement, op. cit. schedule 1a, my emphasis. the qaa national benchmark standards for law to which the joint statement alludes is similarly undemanding: “study in context: within different kinds of degree programme, there will be different emphases on the context of law. … study in context includes that a student should be able to demonstrate an understanding, as appropriate, of the relevant social, economic, political, historical, philosophical, ethical, and cultural contexts in which law operates, and to draw relevant comparisons with some other legal systems…”16 beyond this there is no requirement for courses to address the ethical rules or the moral foundations of the law or lawyering. many schools do offer jurisprudence or legal ethics modules to students which provide some foundation understanding of the relationship between legal theory, morality and the law. but these are not currently required by the academic or professional bodies. at the “vocational” stage of legal education the professional bodies are much more prescriptive as to what and how students should be taught and assessed. the solicitors regulation authority17 issues written standards that dictate the basic curriculum of the legal practice course. the bar council has its equivalent in the “gold book”.18 the solicitors regulation authority written standards contain a requirement to teach students a “pervasive area” of “professional conduct, client care and accounts” together with financial services obligations.19 however, this contains no requirement to go beyond the teaching of the basic rules of professional conduct: “students are expected to be able to identify and advise the client on matters of professional conduct and ethics arising both in the compulsory and elective subjects. they should be able to identify and deal with issues that will lead to better client care in all aspects of their work.”20 there are specific requirements in relation to knowledge or skills areas. for example, a student should “understand the ethics of advocacy and be able to apply them.”21 they should also “be familiar with” rules likely to be encountered during the training period such as the retainer, fees/costs, conflict of interest, confidentiality, bad work and negligence, the solicitor and the court, undertakings and money laundering/proceeds of crime.22 no definition or explanation of lawyer ethics is provided in the standards. the vision of professional conduct contemplated is rather narrow, largely rules-oriented and entirely clientcentred. it presents very much as a technical “can do” approach which requires no consideration of wider themes such as the ethical facets of legal education and training identified in the aclec first report: “…law’s social, economic, political, philosophical, moral and cultural contexts” or “a commitment to the rule of law, to justice, fairness and high ethical standards to acquiring and 10 journal of clinical legal education july 2007 16 national benchmark, op. cit., my emphasis. 17 in january 2007 the law society’s regulation functions were transferred from the law society’s regulation board to the solicitors regulation authority (sra), an arms length independent body with responsibility for regulating the profession and professional legal education. see www.sra.org.uk. this article will refer to the sra but at the time of writing the organisations are in a state of transition. 18 bvc course specification requirements and guidance, general council of the bar august 2004. 19 legal practice course board, written standards version 10, september 2004 pages 15-20. 20 ibid. page 15, my emphasis. 21 ibid. page 11. 22 ibid. page 16. improving professional skills, to representing clients without fear or favour, to promoting equality of opportunity, and to ensuring that adequate legal services are provided to those who cannot afford to pay for them.”23 the bar council is perhaps more demanding of providers of the bar vocational course. the gold book specifies that students “will be expected to demonstrate a sound working knowledge of the code of conduct for the bar of england and wales” and “teaching and learning must be designed to enable students to appreciate the core principles which underpin the code.”24 these principles are said to include the principles of: professional independence; integrity; loyalty to the lay client; non-discrimination on grounds of gender, race, ethnicity or sexual orientation, and “commitments to maintaining the highest professional standards of work, to the proper and efficient administration of justice and to the rule of law.”25 this at least requires students to address principles as opposed to just rules and a potentially challenging consideration of the role of barristers in the justice system including their role as a constitutional safeguard. nevertheless, as a law teacher in england and wales of the academic and vocational stage of legal education (particularly the solicitor route), i am given a great deal of freedom as to how and whether to teach legal ethics beyond the basic professional conduct rules. there is a relatively narrow and mechanistic view of the concept of legal ethics which is firmly rooted in compliance with those professional rules. little depth of analysis or reflection is required. there is certainly no requirement that ethical discussions must arise in the context of real or simulated cases. i can be fairly confident that without too much effort on my (or their) part, my clinical students will be able to jump through the hoops of the joint statement and the written standards. no professional values consensus the dearth of ethical values content in professional education programmes perhaps reflects an inability at all levels to agree a common understanding of the role of the lawyer beyond acting on clients’ instructions.26 this tends to discourage normative discourse and encourage a descriptive approach towards the aim of compliance with the ‘rules’.27 it appears unlikely that there will be any fundamental alteration of this approach in the near future. the solicitor’s profession is currently undergoing a long and at times painful pre-qualification review.28 there have been numerous consultations since 200129 looking at all levels of education and training for solicitors. the review is based on the idea of a move to an outcomes approach for “how do you feel about this client?” a commentary on the clinical model as a vehicle for teaching ethics to law students 11 23 first report on legal education and training, aclec, april 1996. 24 gold book op. cit. paragraphs 25-26, my emphasis. 25 ibid. paragraph 32 my emphasis. 26 webb suggests there is, “a marked lack of consensus about what (beyond the level of broadest generality) those values are in theory (let alone in practice). this difficulty is likely to be aggravated in ethical systems such as the english one, where the written ethics are found in what are essentially disciplinary, as opposed to aspirational, codes.” julian webb “conduct, ethics and experience in vocational legal education” in ethical challenges to legal education and conduct, (hart publishing, oxford 1998). 27 sir mark potter lamented such a mechanistic approach: “but ethics go far wider than this. ethics are not simply regulatory: they are aspirational. they inform the moral dimension of a lawyer’s role and work; the ideals and expectations which inform or ought to inform, the practice of his profession as well as his own view of himself and his function in society.” “the ethical challenges facing lawyers in the twenty-first century”, legal ethics vol 4/1 23 at page 24. 28 formerly known as the training framework review. 29 training framework review consultation papers, july 2001, september 2003, march 2005, law society; a new framework for work based learning, february 2007, the solicitors regulation authority. solicitors so that qualification is based on what aspiring lawyers can do rather that on what courses they have done. the first consultation asked for responses to a model for ethics that required prospective solicitors to: • manifest integrity • apply core duties • apply detailed rules • be client focused, understanding the client’s interests have primacy subject to those of justice and the solicitor’s duty of independence30 the proposal did not require any broader or deeper appreciation of the solicitor’s role or duty towards civil society. the law society commissioned an independent review of the review which found little positive to say about the ethical dimension: “it is difficult to see how lawyers can be expected to be responsible/feel accountable when they are taught nothing of the history of their own profession, its challenges and aspirations … some deeper understanding of the professional project of lawyering … it might also more generally be argued that development of an understanding of the ethical basis of law (not just lawyering) is also a necessary prerequisite of vocational training in professional ethics and conduct. this was broadly the position advanced by the aclec first report, but it is barely reflected in the latest version of the joint announcement.”32 the law society’s second consultation posited the idea of a verifiable learning log indicating readiness for practice. it responded to concerns like that outlined above by insisting that any pathway to qualification should place “strong emphasis on understanding of the professional responsibilities, ethics and values required of a solicitor, as well as on the principles of good client care.”33 it thus departed from the outcomes based approach by suggesting a course covering professional responsibilities, ethics, values and client care to be undertaken only once the individual had sufficient exposure to practice. the third consultation returned to an outcomes-based approach in that it no longer suggested a specific ethics course. however, it did propose an assessment following a period of work-based training of the trainee’s “understanding of the core values and skills that are common across the profession and of their ability to maintain those values and demonstrate those skills in practice.”34 the third consultation suggested a range of “day one outcomes” – the knowledge and attributes that should be expected of a newly qualified solicitor.35 these included, for the first time, an explicit requirement for appreciation of the principles underpinning the profession: 12 journal of clinical legal education july 2007 30 consultation 2001, paragraph 21. 31 andrew boon and julian webb report to the law society of england and wales on the consultation & interim report on the training framework review (london, school of law university of westminster, 1 february 2002) 32 ibid. at paragraph 8.10. 33 consultation 2003, paragraph 87. 34 consultation 2005, paragraph 73. the society is currently investigating the possibility of conducting the assessment electronically including by multiple choice test. it remains to be seen how feasible it is to assess understanding of core values and skills via such a mechanism. 35 ibid. paragraphs 21-25 and annex 1. there is a separate consultation taking place as to the level of detail required to enable the requirements to be transparent. the consultation document envisages a substantial document that would require regular review (paragraph 23). “knowledge of … the rules of professional conduct (including the accounts rules) … understanding of … the values and principles on which professional rules are constructed.”36 candidates for the profession would be required to “demonstrate a practical understanding of the values, behaviours, attitudes and ethical requirements of a solicitor” including appropriate behaviours and integrity in a range of situations showing sensitivity to clients and others with respect to background, culture, disability etc.37 they would also have the ability to recognise and resolve ethical dilemmas.38 at the time of writing the solicitors regulation authority is consulting on the future of workbased learning. the consultation retains the day one outcomes approach and preserves the ethical content.39 40 one outcome of the shift from a tightly prescribed series of programmes to a greater focus on outcomes is that although qualification as a solicitor might require increased ethical awareness, there may be less control over the content of law programmes or the student learning experience. this could have significant implications for the way clinical modules are viewed by law schools, by students and by the profession. as clinics become more widespread and formal teaching requirements are relaxed it is possible that clinics will be seen as the focus for early development of ethical awareness in future legal practitioners.41 there is clearly scope for greater flexibility than is currently the case on the legal practice course as regards the legal ethics curriculum. the removal of the straightjacket of the professional conduct pervasive area could free up space for a more creative and imaginative approach which involved more extensive clinical components. the future may also bring increased pressure on clinics to meet some of the day one outcomes identified above. employers in the legal profession are likely to see clinic as one means of ensuring that new entrants to the profession achieve competence and compliance with professional conduct rules. i would argue that clinical legal education is well suited to the task of addressing the values, principles and ethical dilemmas inherent in the practice of law. paradoxically, although the profession may relinquish its control over the content of law courses, there may be increased pressure on clinical providers to play a more formal role in the training of future lawyers.42 the value of ethics education in a clinical context the foregoing reveals how little regulatory incentive currently exists for the teaching of legal ethics in the clinical context but suggests that pressure may grow in the future. the remainder of this “how do you feel about this client?” a commentary on the clinical model as a vehicle for teaching ethics to law students 13 36 ibid. annex 1, outcome a, my emphasis. 37 ibid. outcome c. 38 ibid. outcome d 39 see a new framework for work based learning, february 2007, the solicitors regulation authority, annex a. 40 consultation 2003 paragraph 17. further, “it is proposed that in the new framework the law society would not prescribe how providers design and deliver courses.” (paragraph 19) 41 see moliterno, “on the future of integration between skills and ethics teaching – clinical legal education in the year 2010”, op. cit note 2, above. moliterno, writing in 1995, predicted that by 2010 most ethics education would take place in an experiential setting but that there would be a demise of the role of the live client clinic. 42 at the time of writing northumbria university is developing plans for a full qualification degree whereby clinic will perform a central role in the training stage of qualification as a solicitor and thus be responsible for a significant part of the future lawyer’s ethical education. article seeks to address the questions of why ethical dialogue is thought to be valuable within a clinical environment and how clinical teachers can maximise the opportunities for enhancing ethical awareness while accepting that it is often not possible to influence the type of client we will attract or the type of case they will present. in other words, what teaching methodology is best able to prompt the hoped-for ethical dialogue? in exploring these questions i will attempt to sketch how ethics teaching and learning currently occurs in uk clinics. i have drawn upon the practice and views of a number of clinical colleagues from the united kingdom who answered detailed questionnaires about their own clinical teaching of ethics.43 law clinics in uk higher education law clinics in the united kingdom are a relatively recent phenomenon. the first clinics were established in the 1970s and there has been a recent surge of interest with new clinics being established and existing clinics expanding.44 clinics exist in undergraduate and postgraduate programmes, mainly as extra curricular or optional modules. typically, they do not form a central part of the academic or vocational stage of legal education but are seen as added value activities.45 there are a wide variety of clinics including full representation in-house legal schemes,46 simulation clinics,47 street law/law in the community initiatives,48 advice-only clinics,49 representation services,50 externship/placement programmes51 and so on.52 it follows that the approaches towards the teaching of legal ethics are likely to be fairly diverse. law clinics and the delivery of ethics education this section explains how clinics can deliver ethics learning for students. it commences by considering the minimum one can expect from a live client programme and proceeds to explore how clinical directors and supervisors can add substance and value to the student experience. 14 journal of clinical legal education july 2007 43 see note 54 below. 44 for a general description of the history and development of law clinics see brayne, duncan and grimes, clinical legal education: active learning in your law school, 1998. see also the detailed description of five clinics in brayne and grimes, mapping best practice in clinical legal education, united kingdom centre for legal education funded research project, 2004 www.ukcle.ac.uk/research/clinic.rtf. a recent survey carried out by colleagues at northumbria university student law office located clinical programmes at the following institutions: bpp, bournemouth university, bristol university, college of law (all branches), de montfort university, university of derby, inns of court school of law, kent university, manchester university, northumbria university, oxford institute of legal practice, queen’s university belfast, sheffield hallam university, southampton university, university of strathclyde, sunderland university and warwick university. no doubt there are many others out there. 45 northumbria university’s exempting degree is an exception in that the clinical modules constitute a major plank of the academic and vocational assessment and replace the three legal practice course electives for all students. northumbria’s freestanding legal practice course and bar vocational course also have clinical electives which formally contribute to the vocational qualification. the college of law has a clinical elective on its bvc and graduate diploma in law courses and has recently introduced an lpc elective. 46 for example, northumbria’s student law office and sheffield hallam’s law clinic 47 for example, warwick’s law in practice module. 48 for example, the college of law’s streetlaw and streetlaw plus schemes. 49 for example, de montfort’s law clinic. 50 for example, the college of law’s london residential property tribunal clinic 51 for example, derby university’s clinical placement programme. 52 there are mediation schemes, soup runs, campaign teams, letter writing help, innocence projects and other creative initiatives which have added to the diversity (some might say chaos) of the clinical picture in the uk. achieving the basics – teaching students professional conduct rules with any client that comes in through the door of the student law office53 i can guarantee my students will conduct an interview, complete some legal research and write letters, including a letter of advice. they will work as a team, develop case and file management skills, become disciplined in time recording, probably do some legal drafting and perhaps perform a negotiation or even advocacy. these valuable experiences will all come their way without any prodding from me. i can put my feet up, check their draft work, send them away to do it again (of course), answer any queries they may have, ask them how it is going and so on. but what about legal ethics? here too i find a degree of automatically generated activity. conflict check? tick. status explained? tick. complaints procedure? tick. costs information? tick. retainer explained? tick. (standardised) client care letter? tick. if i pause there and reflect on the student learning experience i have to recognise there have been some impressive tasks performed and a wide range of skills and knowledge developed. the students have learned by experiencing the day-to-day activities and disciplines of the lawyer. they have explored the legal rules in more detail than they ever do in their substantive legal modules. they have honed their ability to perform the law. they have done all of this in a safe, supporting but challenging environment. their knowledge of the rules of professional conduct will be fairly detailed and their ability to comply with those rules will be enhanced. but this tells only part of the story and unlocks only part of the potential of the clinic. i want my students to consider why the rules are as they are, examine how they fit with their own moral attitudes, and develop their own moral reasoning. a full clinical experience will explore these and other issues in depth and at length. in the following section i hope to explain how this might be possible and will illustrate what i say by reference to the questionnaire responses from uk-based clinicians.54 why do we teach ethics in law clinics? all of the clinicians i surveyed did seek to address the issue of legal ethics in clinical teaching. the reasons tend to reflect a balance between (1) the desire to ensure a professional service and (2) to emphasise the value of legal ethics as a key to understanding the law in context and the role of the lawyer: “how do you feel about this client?” a commentary on the clinical model as a vehicle for teaching ethics to law students 15 53 the student law office is a full casework and representation, law centre style legal service. each year approximately 150 students are supervised by 15 academics with current practising certificates. the case load is around 700 per year and is conducted largely pro bono but with community legal service specialist quality marks in three areas of work. it is integrated into the third and fourth year of the exempting degree and it also offers clinical electives to legal practice and bar vocational postgraduate students. its work covers mainly traditional “poor law” areas but it is also developing transactional and commercial case loads. 54 questionnaires were sent to ten established clinics which provide the majority of clinical legal education in the united kingdom. seven detailed responses were received. the list includes university-based and private law schools. the sample is by no means comprehensive but the responding institutions account for a significant proportion of the clinical legal education in the uk. the questions addressed the following areas: type of clinic and programme; reasons for / advantages and disadvantages of teaching ethics in clinic; prior ethics learning; ethics learning outcomes; teaching methodology; learning resources; and assessment. the questionnaires encouraged a narrative response. not all responses are presented in the body of the article. those which are presented appear with coded references, “clin1” to “clin7” and are edited but verbatim extracts of the questionnaire responses. clin 5: “to protect our clients, students, supervisors and the reputation of the law school; as an educational resource, a tool for reflection on the process of lawyering.” clin 4: “… because of the virtual silence in the curriculum on the issues.” clin 6: “important as part of expanding our knowledge of law and society.” clin 1: “for obvious reasons this is important in ensuring a high level of service and that the clinic and solicitors and students working in it do not breach professional conduct rules. … students are encouraged to reflect upon their interaction with clients and their feelings about their work for those clients, the impact that that work has upon themselves and their clients … it is important that work in clinic not be seen as simply mechanistic i.e. that lawyers should only be interested in ensuring they act in the best interests of their clients. if work students do in clinic is not reflected upon in this way there is very little chance of students doing so as practitioners.” clin 2: “it is important because if we don’t teach ethics then students lose part of the opportunity to reflect and to develop.” it can readily be seen therefore that clinic is already used to teach beyond the bare rules – to explore the role of the law and lawyers and to give students space to think and reflect on the impact this has on clients and society. to me this reflects a unique potential of law clinics to allow students to engage in informed discussion – grounded in experience – about what the law is for but before they have become fully part of the system. being at the interface of legal practice and legal education can give students the luxury of time and the freedom of academic inquiry to reflect deeply which many will not experience again. particular advantages of clinics for teaching legal ethics included: clin 6: “the complexities of actual (and developing) situations challenge students in a manner different from that of lecture/seminar teaching ...” clin 4: “issues are raised contextually and require resolution rather than just discussion in the abstract. issues thus come across as ‘real’ to students.” clin 2: “immediacy: these are not abstract issues; they have immediate relevance. breadth: covers ethics in its widest sense, from professional conduct to aristotle.” clin 1: “problems are real. the student is not being asked in the abstract whether they can act for a particular client who they feel is lying to them, it is real and this makes the decision much more difficult and engaging” the dynamic nature of a real case with actual consequences for clients and others does seem to be central to the urgency and responsibility that students feel when dealing with ethical issues in clinics.55 it also means that the supervisor cannot completely control the way the case will develop. this tends to break down the barriers between student and teacher in that neither may have the 16 journal of clinical legal education july 2007 55 “once they encounter a client, the blind faith that there is a ‘truth’ or a ‘law’ that can be applied must give way to a more sophisticated understanding. clients’ cases rarely present simple facts that lend themselves to right an wrong answers. it is the complexity and unpredictability of working with real people that makes clinical legal education so rich.” jane aitken, “provocateurs for justice”, 7 clin l. rev. 287 at page 292. answers and they must work as a team to find them.56 ethical issues cannot be timetabled into the teaching session in the same way so when they emerge they have a freshness and vibrancy about them. what is the purpose of ethics teaching in clinics? ethical learning outcomes are also likely to be many and varied. they depend on the teacher’s own view of the concept of legal ethics and the proper limits of the educative process.57 contrast the following two views of the purpose of ethics teaching in clinics: clin 4: “teaching students about law’s injustice and the need for lawyers to be committed to addressing unmet legal need.” clin 2: “for me the immediate aim is to give students a more sophisticated language for analysis, reflection and thus self development.” the former contribution suggests a particular approach towards an ethical issue. the latter envisages no end product but sees ethics teaching as providing a set of tools for students to use. this difference reflects an important debate about how far teachers ought to go in advocating ethical solutions. the modest proposal that lawyers ought to be committed to access to justice may not be universally supported, although it does appear to have achieved consensus support within the profession, at least in england and wales.58 beyond this it is possible to secure general agreement that lawyers ought to preserve their independence, protect the rule of law and even secure human rights.59 however, certain ideas (for example, that lawyers should be committed to social justice or equality) will appeal to a smaller constituency of teachers, students and professionals. we can all agree that we should make students think about ethics. there is bound to be less agreement over what we should make them think.60 other respondents focused on the development of analytical and evaluative thinking as a key outcome of clinical ethics teaching: “how do you feel about this client?” a commentary on the clinical model as a vehicle for teaching ethics to law students 17 56 eduard lindeman, writing in the 1920’s about the concept of democratic teaching outlined the role of the teacher as follows: “in this process the teacher finds a new function. he is no longer the oracle who speaks from the platform of authority, but rather a guide, the pointer-out who also participates in the learning in proportion to the vitality and relevance of his facts and experiences.” eduard c. lindeman, the democratic man: selected writings of eduard c. lindeman, robert gessner, 1956. 57 in some jurisdictions, such as the usa, clinic might be used as a vehicle for delivery of compulsory lawyer ethics / professional conduct material. 58 the attorney general with the support of the profession established a national pro bono coordinating committee and agreed to promote pro bono in law schools among other objectives: “we all know the popular perception that lawyers only care for their fees. pro bono challenges those ill-informed views. in no other profession do practitioners work for free so extensively or so systematically. their aim is to help people who need lawyers’ skills and knowledge but won’t get them otherwise. their efforts embody the principles of fairness and justice that are the cornerstone of the law. the committee, with its concrete, practical measures to extend the reach and raise the profile of pro bono, is leading the way.” the attorney general, speech to the solicitors’ pro bono group, 29th march 2003. 59 see havana declaration on the role of the lawyer adopted by the eighth united nations congress on the prevention of crime and the treatment of offenders, havana, cuba, 27 august to 7 september 1990, in particular see paragraph 14: “lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.” 60 i return to this issue in the final section on typology of ethics dialogue, below. clin 5: “… reflect critically on the nature of lawyer-client relationships and other processes of lawyering” clin 7: “… to introduce students to and to develop their critical understanding of law in an applied context.” clin 1: “a wider appreciation of the lawyer’s role, pressures and dilemmas for lawyers and the social, political and economic impact of the law on individuals and groups in society.” clin 6: “… ability to identify analyse and evaluate issues relating to legal ethics (includes an awareness of the contemporary preoccupation with ethics in many spheres of social activity, and of the use of higher education to promote this further; and a consideration as to whether these developments might suggest a lack of confidence in ourselves and trust in others.)” these aims are clearly not unique to clinical education. however, clinic provides a practical platform upon which the broader contextual learning can be developed. i am particularly attracted by the proposition that the teaching of legal ethics should ask why we teach legal ethics and require students to reflect on whether this is a positive or a negative thing. it prompts an interesting question that i do not propose to pursue further in this article: could the teaching of ethics itself be unethical? how are legal ethics currently taught in clinics? there is a surprising degree of commonality of approach to the teaching of ethics in the clinics i surveyed. most respondents said that clinic students had little prior learning about legal ethics in their other studies.61 within the clinic there tends to be some formal tuition, particularly at the outset of the clinic programme, although this sometimes continues for the duration of the module. there is almost without exception formal instruction on compliance with the rules of professional conduct and this is backed up by a wide variety of materials such as the code of conduct for solicitors, clinic manuals/handbooks, clinic codes of ethics, supervisor tutor packs, ethics seminar materials and a wide variety of ethics and clinic reference books. the main vehicle for the airing of ethical issues tends to be the small discussion group variously described as firm meetings, clinic ethics committees, clinic seminars, casework discussions and tutor and peer feedback. some ethical issues (such as confidentiality) are emphasised on each occasion, although the picture tends to be that ethics issues are discussed as and when issues arise: clin 1: “it is up to the supervisor of each firm meeting to use the students’ experiences which raise, or potentially raise, ethical issues to provoke discussion and thought. students might be challenged about their view of the client and the effect that has on the conduct of their case. they might be asked to justify acting for a particular client. they might be asked whether they have personal or political bias towards or away from the client’s case.” this approach has the advantage of flexibility and spontaneity, although it does place a fairly heavy burden on the tutor. s/he needs to identify opportunities for ethical dialogue, create the right 18 journal of clinical legal education july 2007 61 where the clinic is part of a vocational course the students receive the formal tuition described earlier regarding professional conduct and client care. environment for such discussions to take place, and provoke discussion at an appropriate level without dominating the session or providing all of the answers. i would argue that the individual supervisor requires support at clinic or programme director level to ensure that ethical issues can be discussed. the development of common teaching tools and materials to encourage students to spot and address ethical points is of real importance. in clinics with a number of supervisors there may be an issue with consistency of approach. such clinics tend to use some common teaching materials but it is difficult to see how ethical discussions (which in clinics tend to be context-specific) can be reduced to “tutor notes” such as those which tend to be used on most professional law courses. the risk of certain students experiencing less rigorous ethical discussions may also be compounded by the variety of cases within a clinic: clin 1: “additionally, in the clinic much depends upon the supervisor and the area of law being practised. students with a supervisor committed to ethics teaching in an area such as miscarriage of justice may get an entirely different appreciation than another student with another supervisor working in personal injury.” clinic 1 was developing a range of ethical teaching materials that could be adapted for use in any type of case. this involved the use of generic exercises, tasks, reflections, questions and follow-up reading. these activities related to particular ethical concerns (such as the value of confidentiality) and could be utilised irrespective of the issues arising in any given case. with some imagination and willingness to use hypothetical extensions to real life cases it ought to be possible to promote detailed discussion and debate about a very wide range of ethical issues. this approach retains the valuable case-specific dialogue and so ensures students are speaking about their own real cases but it ensures a degree of discipline and consistency of coverage. numerous examples of techniques and strategies for engaging students in ethical discussions were offered by respondents including the following: ‘balloon game’ exercise on the rules of ethics; simulated interview and negotiation activities; ‘law reform’ negotiation in which students negotiate revisions to the rules of professional conduct; ‘ethics audits’ of case files against the clinic code; resolution of potential conflict of interest by a ‘clinic ethics committee’; challenging students to identify and justify their proposed responses to situations; reflections in portfolios; analysis of the standard of work by previous lawyers’ in asylum cases and discussion of what can be expected given financial constraints; discussion of how much information to give a client about why exactly they have no case when you know that will upset them (conflict between paternalism and client autonomy); assessing the extent to which a client’s case can be put at its height without claiming remedies which in law are not available to them; deciding whether to allow a client to plead a claim when they have already informed the student of a fact which is inconsistent with that claim; discussing duties of disclosure to the court and the state when a client discloses benefit fraud; debating whether students should spend so much time working for a middle class person on a money only case when there are many more people in need around. these examples indicate a rich seam of ethical issues arising out of relatively routine casework. they also illustrate that valuable ethical dialogue can be provoked via simulation activities. i wish to emphasise the importance of simulation as part of the overall package of clinical education. “how do you feel about this client?” a commentary on the clinical model as a vehicle for teaching ethics to law students 19 simulation can wrap around the live client experience in a way that ensures that students receive a basic introduction to ethical issues and extend their thinking about such issues from their real cases. it helps to ensure consistency and coverage of the syllabus. it is obviously possible to teach ethics solely via simulated clinic62 but ideally live client work will form the core trigger for ethical dialogue with simulation used as a supplementary and added value method. similarly, there is a place for more formal classroom-based activities including lectures and seminars which introduce or flow from the real ethical issues. this can help to provide the intellectual rigour that would be missing if ethical dialogue was all conducted spontaneously. clinic 1 brings small groups together in “joint firm meetings” three times per year to discuss wider issues arising from their caseload. this is often an opportunity for ensuring students read core literature and debate ethical dilemmas. problems with teaching ethics in clinics clinical teaching is not a panacea and we should not assume that ethics teaching in clinics will always have more value than traditional methods. clinics have the potential to provide a stimulating environment within which ethics discourse will take place but this requires careful organisation and skilful implementation. there are difficulties for clinicians in trying to engage students with legal ethical issues. some of these difficulties were identified by respondents as follows: clin 2: “lack of language: students have no knowledge of formal ethical issues, nor do their supervisors. how then do we progress beyond, ‘its not fair’?” clin 4: “they do not always see the issues when they arise and they have no background understanding of the ethical debates when they do come to attempt to resolve issues.” clin 1: “students can be tempted to see clinic as a means of obtaining skills and experience but not wider learning about the law and the ethics of law. they can become very enthused by the practical work but can lose sight of the wider picture because of this.” these responses reflect a real problem of how to structure and manage ethics teaching within clinics. the typical approach seems to be that students will be encouraged to reflect on their experience within the case discussions. this is consistent with the idea that ethics discussion should be connected to the real life context of the client’s cases. however, it is then difficult to ensure that students develop awareness of ethical debates and theories in order to secure a degree of sophistication in the ethical discourse. there are only so many times a tutor can ask, “how do you feel?” before the question loses its ability to engage students’ imaginations. they need to be able to take the discussion to higher levels and for this they need to understand basic theoretical concepts. as one respondent put it: clin 1: “the question could be asked as to whether there should be clear syllabus together with some standard sources of text to ensure some common level of understanding and rigour. against this might be set the concept that the learning should be driven by experience in the cases. in my experience, however, while the 20 journal of clinical legal education july 2007 62 see steven hartwell’s description of his experiential ethics clinic above at note 6. clinic deals well with professional conduct issues, it is much more difficult to achieve a comprehensively satisfactory wider ethical appreciation for all students.” if we are to develop a “clear syllabus” the answer might lie in prior legal theory learning. on my own course we introduced a compulsory module in jurisprudence for all third year students. this comes prior to their live clinical experience so we might expect that the following year our students will come with a solid theoretical framework that will help inform their ethical concerns and upon which their clinical discussions can build. however, ethics forms only a small part of the jurisprudence syllabus and i fear that the temporal and psychological dislocation between the theoretical module and the clinical module means that students do not see the link between the two. the challenge is to retain the immediacy and enthusiasm that real life encounters provoke but to ensure that students develop the building blocks to make their ethical discussions varied and valuable.63 the building of rigorous ethical study into the clinic routine is a key to successful achievement of sophisticated ethical understanding. ethics libraries within clinics are also important so that the tutor can require students to see ethical research in the same way that they view their practical legal research – part of what makes them a good lawyer. a further difficulty identified by a respondent reveals another key challenge to those involved in clinic management. clin 1: “tutors need to be very sensitive to potential learning opportunities, to spot the potential for a full discussion of an issue rather than skate across the top of it.” ethics education will not happen simply by students being in close contact with a competent practitioner. modelling ethical behaviour has value but if it stands alone it is seriously limited; ethics by osmosis does not work. the creative role of the clinical tutor is fundamental to the learning experience. good teaching of ethics in a clinic will be able to draw out lively discussion of values, roles, assumptions, prejudice, commitments, attitudes, fears etc. from the simplest small claim. poor ethics teaching will achieve sterile, mechanistic observations from the most outrageous human rights violation. many clinic supervisors come into the clinic environment direct from legal practice. they have not generally been used to daily wringing of hands over their professional obligations or their wider impact on society. they probably went through a legal education that was fairly silent on ethical issues. they need to be given training, encouragement, materials and time in order to become good ethics teachers.64 “how do you feel about this client?” a commentary on the clinical model as a vehicle for teaching ethics to law students 21 63 note the legal practice and conduct module at la trobe university described by mary anne noone and judith dickson in “teaching towards a new professionalism: challenging law students to become ethical lawyers” legal ethics vol 4/2 127 whereby clinical case work is combined with a weekly three-hour seminar with the focus on what constitutes ethical legal practice. the real life experience feeds into the classroom discussion to give it a real life application. in this way the risk of dislocation between classroom study and clinical activity is reduced. 64 see “reflection-in-action: designing new clinical teacher training by using lessons learned from new clinicians”, dunlap, justine a.; joy, peter a. 11 clinical l. rev. 49 (2004-2005) how to ‘do’ ethics in the clinic – a typology of ethics dialogue in this section i describe four possible approaches that could be used for encouraging valuable discussions of ethics within law clinics. i categorise them as follows: • passive (rule-based ethics) • reflective (role-based ethics) • transformative (attitude-based ethics) • engineered (outcome-based ethics) i consciously adopt the first three in my teaching. i generally try to avoid the last but i suspect this creeps in at times. i have focused on case-inspired discussions as opposed to discrete / abstract teaching sessions. the latter can be valuable, particularly in the early or training stages of a live clinical programme, but once the students start to deal with real people it is much better if the discussion arises out of the real case and, if necessary, is taken further by hypothetical extensions. model 1 – passive (rule-based ethics) live client clinics provide an excellent opportunity for learning the basic rules of professional conduct and compliance with professional standards. there are a wide range of activities that provide students with an unrivalled learning experience. rather than the traditional classroom activities students can learn by doing. they should be asked to find out what rules of conduct govern a particular situation (for example, taking instructions from a third party) and propose a course of action that ensures the clinic complies with the rules. they should then implement the agreed action and appropriately record what they have done. in this way they will develop technical knowledge of what the professional codes require and also the “how to do” skills such as drafting client care letters. this approach can become relatively sophisticated as students need to learn how to identify situations which engage professional conduct rules and develop strategies to avoid breaches of the rules. there is scope for use of hypotheticals to enhance the student learning such as, “what should we do if the client tells us his list of previous convictions is wrong?” this approach does not normally require a significant amount of deliberation or debate,65 although it can run neatly into other models and provides students with excellent foundation knowledge for more in-depth discussions. model 2 – reflective (role-based ethics) [t]he work of a lawyer is often portrayed in the law school environment as quintessentially amoral in the sense that the lawyer is expected to exercise objectivity and detachment in dealing with legal matters … one task of ethics is to disabuse students of the misconception that the profession of law, in any of its forms, is devoid of ethical ramifications.66 22 journal of clinical legal education july 2007 65 for this reason this approach is rarely the exclusive method of teaching ethics in clinics. for analysis of the limitations of the role morality approach see julian webb, “being a lawyer/being a human being”, legal ethics, vol 5, 130 at 131 et seq. 66 duncan webb, “ethics as a compulsory element of law degrees”, legal ethics vol 4, no.2, 109, at 116. a reflective approach adopts a more analytical attitude towards the rules and towards the role of the lawyer or legal system. for example, once students have a basic grasp of what a conduct rule is they can be asked to think about the origin and rationale of the rule. this can and often is conducted on the basis of the students’ own thoughts about the proposition under consideration. however, value is added to such discussions when students are required to complete wider reading about the particular rule or about ethical norms. this approach lends itself to student presentations and student-led discussions whereby the group can reflect on the issues that have previously arisen on a case and review the way they were dealt with. this approach can be particularly valuable when conducted in the context of a live case, especially if a difficult issue has arisen. in one criminal case i conducted the client asked the student whether she believed he was innocent. she immediately responded, “yes, of course” and only later wondered whether it was a proper part of the lawyer’s function to come to a conclusion about the objective merit of her client’s case. we later involved the client in a discussion about whether and to what extent it mattered to him what his lawyer believed. techniques associated with this model include role reversal whereby students attempt to anticipate how clients might be affected by their interaction with the students, the law clinic, the court system etc. use of role play can help to make these issues immediate, although often the reality comes from the situation itself. if clients consent to having the interview video recorded then student replay with commentary and peer review can provide an excellent opportunity to reflect on their impact as a legal adviser. use of hypothetical situations can assist with teasing out the reflective discussions for example, “what if the client won the lottery tomorrow – can and should we stop acting for her because other people are more needy?” the key to this model is asking students to think critically about the role of the lawyer and the role of the law. it might thus involve students in complex and irresolvable debates such as whether wrongful convictions are inevitable or whether a no-fault compensation scheme would resolve the problems of medical litigation. the issues encountered in these discussions are often popular topics for end of module reflective commentaries / essays. model 3 – transformative (attitude-based ethics) “perspective transformation is the process of becoming critically aware of how and why our assumptions have come to constrain the way we perceive, understand, and feel about our world; changing these structures of habitual expectation to make possible a more inclusive, discriminating, and integrating perspective; and, finally, making choices or otherwise acting upon these new understandings”67 transformative learning is a theory extensively developed by jack mezirow whereby learners embark on a series of developmental stages including self-examination, critical assessment of assumptions, recognition of similar transformations in others, exploration of new roles or actions, development of a plan of action, building knowledge and skills, trial of the plan, development of competence and self-confidence, and reintegration on the basis of a new role and perspectives.68 the process is supposed to alter the way the learner looks at themselves and their function. “how do you feel about this client?” a commentary on the clinical model as a vehicle for teaching ethics to law students 23 67 jack mezirow, transformative dimensions of adult learning, 1991 page 167. 68 jack mezirow, “transformation theory of adult learning” in in defense of the lifeworld, welton ed. page 50. it should start with a “disorienting dilemma” which acts as the catalyst for the process of rethinking. this may seem an ambitious (and potentially destructive) project for clinic teaching. we do not necessarily want our students reappraising themselves so far that they decide to become accountants instead!69 nevertheless, clinical work does provide a useful opportunity for making the student question the bases of prior learning about the law, morality, politics etc.70 if done in a challenging but supportive environment it can be a constructive and enjoyable process. moreover, the clinic can provide the opportunity for a number of disorienting dilemmas in that students experience situations that they have never encountered previously and can become overwhelmed by the issues they face. this approach goes a step beyond model 2 as it critiques not just the role of the lawyer but looks intensely at how the student as a person and professional fits into this role. i have tried to invoke transformational methods within the clinic in relation to fairly modest aspects of students’ work. for example if a student-client interview goes disastrously wrong in the eyes of the student this can be the trigger for the encouragement of a wholesale review of the way the student communicates within the law. the feeling of failure after the interview becomes the disorienting dilemma, the video replay is the start of self examination and they can be encouraged to systematically critique not just that interview but their general approach towards communicating with clients and others about the law. slowly working towards a new approach (perhaps involving peers in role play preparations) prior to the next interview. obviously it takes a degree of selfawareness to recognise a failure or to perceive a dilemma. sometimes it may take some prompting from the supervisor and/or fellow students. there is a danger that this sort of process becomes narcissistic in that the students become preoccupied with their personal development and neglect the wider ethical issues arising from their cases. it should thus be used in conjunction with other means of encouraging reflection. in order to be effective, this method is likely to involve a degree of (sometimes forceful) challenging of students’ preconceptions about the role of the lawyer, forcing them to reflect on their own values and think critically about why they think the way they do about the law. it gives rise to a number of potential difficulties and controversies including which preconceptions to challenge, which criticisms to encourage, the impact of the teacher’s prejudices and so on. these issues are not unique to the teaching of ethics but may arise acutely in this context. the key to effective teaching of the lawyer’s role is to ensure that students understand the law is not an immutable set of rules for good or ill but rather a sophisticated and dynamic compromise between competing interests. students should grasp that lawyers are in a highly privileged position of being able to participate in the resolution of doubt and conflict within the law and that they do not act as wholly neutral locators of ‘the answer’ but bring their own ‘baggage’ to the case. 24 journal of clinical legal education july 2007 69 the serious point behind my facetious comment is that transformative learning should not be seen as encouraging sado-masochistic approaches to learning. bullying and humiliation should have no place in the law clinic. the process of learning about the law is bound to mean that some people decide the legal profession is not for them but transformational dialogue should not disproportionately put people off the law. 70 see fran quigley, “seizing the disorienting moment: adult learning theory and the teaching of social justice in law school clinics” (1995) 2 clin lr 37; see also jane aiken “teaching justice, fairness and morality” (1997) 4(1) clin lr 3. model 4: engineered (outcome-based ethics) the point about this approach is that students are encouraged to think in a particular way about ethical propositions. the aim is not just to get students to think about their ethical response but to adopt a specific response. in this sense, unlike the earlier approaches, the value of the educative process here is teleological. the teacher succeeds to the extent that s/he achieves a given belief (and possibly conduct) on the part of students. for example wizner believes that a value of legal education lies in encouraging students to nurture their: “capacity for moral indignation at injustice in the world, or to challenge and inspire them as lawyers to use what they have learned to work for social justice.”71 as previously outlined, such views, based as they are on a particular socio-economic or political outlook, are not going to find universal support among other people, including other teachers, students and lawyers. it would be easy to dismiss this approach as indicating an arrogance of belief in moral superiority on the part of the educator. the role of ethics education should surely be to provide students with the knowledge and understanding and the reasoning skills to be able to form their own, not the teachers, moral viewpoint. “… while any teacher will have a personal point of view that they should not resile from putting forward, it is also the task of the law teacher to represent the diversity of views that exist. equipped with this knowledge students are then capable of adopting an ethical point of view of their own, or perhaps of giving reasons for their refusal to adopt a particular point of view. ”72 i have general sympathy with the idea that legal education should encourage students to make their own (informed) decisions and that success should be measured by their depth of understanding and their ability to reason, not the views they ultimately form. however, i have begun to wonder whether it is always inappropriate to try to engineer a particular ethical viewpoint. although i would not consciously advocate that my students should have a particular commitment to, say, ending poverty i might be less cautious about something i believe to be not only selfevidently true but also indisputable. i believe torture is wrong. should i encourage (or require) my students to think (or at least express, at least in assessments that i am marking) similar sentiments? or should i concede to moral relativism and ask students to come to their own conclusions? more than this, should i “represent the diversity of views that exist”? does it matter if the moral proposition is a binding professional obligation on lawyers such as the duty not to mislead the court? should i explore the lawyer’s role in the administration of justice but leave it to the students to decide for themselves whether and when they will abide by the rules and when their moral beliefs dictate the rules be broken? as a teacher of future lawyers am i wholly lacking in any responsibility for the sort of lawyers they turn out to be? if they become dishonest rogues is my conscience cleared if they know why they are rogues? “how do you feel about this client?” a commentary on the clinical model as a vehicle for teaching ethics to law students 25 71 stephen wizner “beyond skills training” clin. l. rev 7/2 2001 and see also jane harris aiken “striving to teach justice, fairness and morality”, clin. l. rev. 4 1997 72 duncan webb, “ethics as a compulsory element of law degrees”, op cit, at 116. this is reflected by one respondent to my survey of clinicians who, when asked whether students should be encouraged to think in a particular way about an ethical proposition replied: “no – i am a firm believer in individual autonomy. i want them to think.” there are no easy answers to these questions but i am ultimately drawn to the notion that there are certain ethical views that i have a personal and professional right to express. julian webb urges that ethics education should help future lawyers to avoid disjuncture between role morality and their personal values.73 if we vest ultimate faith in student autonomy there is a risk that there will be disjuncture between the educational imperative and the teacher’s personal values. we need to be comfortable with the general goals of our teaching (being a teacher and being a human being) and the consequences of that teaching can be seen as part of the picture. thus although i feel generally uneasy about dictating a particular ethical approach, it is inevitable that there will be certain issues where (consciously or unconsciously) i will espouse a particular opinion or alternatively not promote discussion about where the “right” answer might lie (because i know where it lies and i want my students to adopt the same approach). conclusion student evaluations of clinic often contain responses like, “it made me realise why i wanted to study law in the first place”. for many clinical teachers the response would be the same in relation to their motivation for teaching law in the first place. clinic, particularly live client clinic, provides a creative, enthusiastic and democratic environment for the learning of the law. a key reason for this is the way that engagement with the real world as affected by real laws challenges moral codes and refreshes ethical thinking. failure to take advantage of this in dialogue with students would be an abdication of responsibility as a teacher and show a poverty of imagination. this is why, despite the absence of any external imperatives, the teaching of ethics in law clinics continues to be highly valued, debated and researched. ethics without clinic is artificial; clinic without ethics is sterile. this mutual interdependence ensures a vibrancy that is rare in modern higher education. by outlining some views of clinical teachers in the united kingdom and categorising various approaches towards clinical ethics methodology i hope this article will help to provoke further reflection among clinical scholars about why and how clinical legal education and ethics awareness should continue to develop together. 26 journal of clinical legal education july 2007 73 julian webb, “being a lawyer/being a human being”. legal ethics, vol 5, 130 reviewed article 32 grounding inside/out professional identity formation by developing wholehearted lawyers with therapeutic intent dr jennifer l whelan, western sydney university abstract professional identity formation of law students ideally encompasses both development of the necessary attributes of lawyers as well as a robust philosophy to inform the character of their engagement with the justice system throughout their career. susan brooks’ wholehearted lawyering teaching principles and practices provide a sound basis for developing the complex core personal, interpersonal, and relational skills necessary for law students and lawyers to maximise constructive interactions within the legal system. vulnerability theory and therapeutic jurisprudence too, provide sound principles to guide students’ and lawyers’ purposeful engagement with the legal system, particularly to facilitate greater access to justice through resilience-building and therapeutic contributions and impacts. this article proposes an inside/out pedagogy that develops students’ awareness of these necessary personal and interpersonal attributes (the inside) and that provides a framework for purposive engagement grounded in improving access to justice (the out). this pedagogy systematically embeds both brooks’ wholehearted lawyering scholarship to develop students’ core professional attributes, and principles drawn from vulnerability theory and therapeutic jurisprudence to stimulate students to crystallise their own purpose as lawyers. the article then examines the development and application of this pedagogy in an australian legal clinic established in 2020 at western sydney university in new south wales, australia. keywords: wholehearted lawyering, therapeutic jurisprudence, vulnerability theory, social justice, clinical legal education, professional identity formation reviewed article 33 1. introduction this article has three purposes. it contends for a conceptualisation of the necessary professional identity formation of law students that encompasses both the development of necessary personal and interpersonal attributes of lawyers as well as a robust philosophy that will inform the character of their engagement with the justice system throughout their career. it then proposes a pedagogy that develops students’ awareness of these necessary attributes and that provides a framework for engagement grounded in improving access to justice. lastly, it examines the development and application of this pedagogy in an australian legal clinic established in 2020 at western sydney university in new south wales, australia.1 part 2 defines “professional identity formation” and examines the significance of the way it is conceptualised in law school teaching to guide students’ development of their identity and purpose as legal practitioners. part 3 proposes an inside/out pedagogy that develops students’ awareness of these necessary personal and interpersonal attributes (the inside) and that provides a framework for engagement grounded in improving access to justice (the out). this pedagogy consists of the systematic embedding of two equally important components: susan brooks’ wholehearted lawyering scholarship in teaching principles and practices to develop student’s core professional personal and interpersonal identities and competencies, and core purpose or engagement 1 i would like to acknowledge and thank professor anna cody, dean of western sydney university school of law for her vision and steadfast and enthusiastic support for the development of the clinical program. i would also like to acknowledge and thank professors susan l brooks, david wexler and anna cody for their helpful comments on an earlier draft of this paper. the clinical legal placement unit is run through the western sydney university justice clinic and taught by rebecca dominguez, principal solicitor and clinical supervisor and myself (justice clinic director and director of clinical legal education, school of law, western sydney university). to date we have taught nine cohorts of eight penultimate or final year law students in the unit. i would also like to acknowledge and thank rebecca dominguez for being the embodiment of a wholehearted lawyer/clinical teacher and for her unique and essential contribution to the development of the justice clinic teaching, activities and partnerships. reviewed article 34 principles drawn from vulnerability theory and therapeutic jurisprudence to contribute to therapeutic and resilience-building impacts on the legal system. it explains briefly the principles and practices underpinning wholehearted lawyering, and the relevant aspects of therapeutic jurisprudence and vulnerability theory that are the conceptual foundations of this teaching pedagogy. part 4 then examines the systematic embedding of brooks’ scholarship into the principles and practices underpinning teaching in the justice clinic and the purposive shaping of clinic activities and community partnerships by reference to engagement principles drawn from vulnerability theory and therapeutic jurisprudence. part 5 then briefly discusses lessons learned and some future steps to continuing to develop the professional identities of wholehearted lawyers with therapeutic intent. 2. conceptualising professional identity formation and its significance student professional identities are considerably shaped by the way in which being a member of the legal profession is communicated and articulated through law school curriculum design and teaching pedagogy. it is this moulding that makes the way professional identity formation is understood so significant. professional identity is a complex construct. it captures the coalescence of the formal rules governing the conduct of lawyers, the technical knowledge required to practice, the skills to implement that technical knowledge, identity (individual values and characteristics) and purpose (reason for being a lawyer, objectives and intention for going into legal practice). the first three elements are essentially generic with objective benchmarks of compliance, development and competence and they are generally the focus of law school curricula. the last two elements, however, are individual and subjective and arguably, determinative of the type or character of the lawyer and the role they will play in the legal system. law schools are historically adept at transferring knowledge about the formal rules governing the conduct of lawyers and technical subject knowledge. they are also reviewed article 35 increasingly focused, with tertiary education work integrated learning priorities, on transferring practical skills to implement technical knowledge. they are however in embryonic stages of deliberatively embedding individual identity and purpose formation in whole of school curriculum design and pedagogy. this has two significant and inter-related consequences. firstly, curriculum design and pedagogy that focuses on knowledge transfer of the formal rules governing the conduct of lawyers, technical subject knowledge and practical skills without an equivalent focus on individual professional identity and purpose hinders the deliberative development of those attributes and renders their development as haphazard, at best. secondly, failing to purposively embed development of individual identity and purpose in professional identity formation in curriculum design and pedagogy creates a limiting frame for students’ understandings of how they anticipate they will, or are expected to practise, as lawyers. to illustrate, professional skills formation that is focused largely on students’ understanding of their legal ethical obligations and professional conduct rules form the circumference or outer limits of the conceptual space of professional identity. within this space, sits students’ fledgling understandings of their persona as lawyers (both their internal and their interpersonal professional selves) and their intended impact from their engagement within the legal system. given that one of our core tasks as legal educators is to find a framework for educational programs to best prepare students for their professional role,2 we need to ensure that curriculum design and pedagogy conceptualises and teaches the five elements of professional identity formation holistically. it must be acknowledged that frameworks for preparing law students for their profession are not value neutral. this is particularly so in relation to the development of individual identity and purpose. accordingly, the deliberative embedding of these 2 robyn s. adams et al, ‘being a professional: three lenses into design thinking, acting, and being’ (2011) 32 design studies 588. reviewed article 36 elements into curriculum design and pedagogy ought to be theoretically justifiable. there are numerous critical theories that shape the lenses lawyers and legal educators use to understand their individual identity and purpose as lawyers. the next section proposes a pedagogy that develops one model of students’ necessary personal and interpersonal identity attributes as lawyers and sense of purpose. this is conceptualised as an inside/out pedagogy that both develops students’ awareness of the necessary personal and interpersonal identity attributes (the inside) and that provides them with a purposive or engagement framework grounded in improving access to justice (the out) as captured in diagram 1 below. diagram 1: professional identity formation foci: inside/out this pedagogy consists of the systematic embedding of two equally important components: susan brooks’ wholehearted lawyering scholarship to develop students’ core professional personal and interpersonal identities and competencies, what principles/philosophy will guide why and how i engage with all of the stakeholders in the legal system? what sort of impact do i want to have and how will i achieve it? (out) personal and interpersonal attributes what sort of lawyer do i want to be? (inside) reviewed article 37 and core purpose or engagement principles drawn from vulnerability theory and therapeutic jurisprudence to contribute to therapeutic and resilience-building impacts on the legal system. 3. wholehearted lawyering, vulnerability theory, therapeutic jurisprudence and access to justice this section explains briefly the principles and practices underpinning wholehearted lawyering, and the relevant aspects of therapeutic jurisprudence and vulnerability theory that are the conceptual underpinning of the inside/out teaching pedagogy to develop students’ individual identity and purpose as two of the core components of their professional identity formation. wholehearted lawyering scholarship builds on existing professional identity formation scholarship about relationship-centered and relational lawyering.3 relevantly, relational lawyering is a framework built on three professional competencies: appreciating the interconnected, interdependent context in which people are situated; promoting individual and community choices around legal process that contribute to greater procedural justice; and heightening awareness of the cultural, emotional, and affective dimensions of legal practice. 4 these concepts are congruent with the self-reflective, compassionate and multi-disciplinary model of lawyering that has a deep history in australian community legal centre culture.5 in 2018, building on this scholarship, brooks articulated a roadmap to consciously and intentionally guide the professional identity formation of law students focusing on the nature and quality of the web of interconnected relationships at the core of how law 3 see for example susan l. brooks, ‘using a communication perspective to teach relational lawyering’ (2015) 15 nevada law journal 477, 481-82. 4 susan l. brooks and robert g. madden, ‘relationship-centered lawyering: social science theory for transforming legal education and practice’ (2009) 78 university of puerto rico law review 23. 5 anna cody, ‘clinical programs in community legal centres, the australian approach’ (2011) 4 education and law review 1. reviewed article 38 is taught and practised.6 describing that professional identity formation as wholehearted lawyering, brooks articulated the following five principles to guide law teachers: 1. teach from a place of kindness and curiosity with humility and transparency. 2. everyone wants to matter: everyone wants to be seen and heard and mattering correlates with academic success and other positive outcomes. 3. we must appreciate our own context, culture and values and the contexts, culture and values of others. 4. adopt a strengths, optimistic, growth-based teaching and learning orientation. 5. apply a relational ethic of care by ensuring everyone has a voice, is listened to and heard with respect, and is responded to.7 brooks also recommended adopting the following three teaching practices to implement these principles: 6 susan l. brooks, ‘fostering wholehearted lawyers: practical guidance for supporting law students’ professional identity formation’ (2018) 14 university of st. thomas law journal 412. see also susan brooks, ‘fostering wholehearted lawyering through clinical legal education’ the best practices for legal education blog (web page, 26 april 2021) <https://bestpracticeslegaled.com/2021/04/26/fosteringwholehearted-lawyers-through-clinical-legal-education/>. in recent years, brooks has gone on to marry mindfulness practices with relational lawyering scholarship in “mindful engagement”. for brooks, mindful engagement entails bringing our emotional and bodily awareness as well as our analytical minds fully into our work. it contemplates the interconnection and integration of engagement with oneself, engagement with others interactively, and engagement with communities and larger social institutions and systems. see susan l. brooks ‘mindful engagement and relational lawyering’ (2019) 48 southwestern law review 267. 7 brooks, ‘fostering wholehearted lawyers: practical guidance for supporting law students’ professional identity formation’ (n 6) 424-425. https://bestpracticeslegaled.com/2021/04/26/fostering-wholehearted-lawyers-through-clinical-legal-education/ https://bestpracticeslegaled.com/2021/04/26/fostering-wholehearted-lawyers-through-clinical-legal-education/ reviewed article 39 1. promote self-awareness by being fully present, slowing down enough to notice and suspend judgment, encouraging leaning into discomfort and cognitive stretching and getting more comfortable with silence.8 2. create supportive spaces that can contain open and inclusive dialogue including that which is emotionally or politically sensitive or controversial.9 3. be intentional and explicit about fostering empathy, compassion, self– compassion, opportunities for feedback and reflection, and incorporating creativity, joy and gratitude into the classroom to model how students can adopt these qualities into their professional identities and their practice of law.10 wholeheartedness and lawyering are not necessarily cognitively consonant concepts for everyone and for some lawyers, the notion that wholeheartedness ought to be a professional identity goal of lawyers is jarring. yet, from an inside/out pedagogy perspective, brooks’ principles and practices neatly promote the development of students’ awareness of the necessary personal and interpersonal identity attributes, habits of mind and professional skills to optimise lawyers’ ability to work effectively, ethically and resiliently with clients, other practitioners and as actors in the legal system. this is so regardless of the area of law that they will ultimately practice in. they do so by encouraging students to look within, to think critically and reflectively about their individual values, contexts and characteristics, and by building students’ understanding of the impact, on themselves and others, of working with (and without) kindness, humility, empathy and compassion. brooks’ application of the relational ethic of care model provides an explicit “vehicle to help students create a positive vision of their professional roles” but it also offers a bridge for the 8 ibid 427. 9 ibid 428. 10 ibid 429-432. reviewed article 40 development of students’ purposive and engagement framework (the out) by fostering thinking about “their potential impact on society.”11 it is core business of law schools to teach about both the administration of justice and the enablers of, and impediments to, accessing justice. this necessarily encapsulates not just understanding the structural barriers to accessing lawyers and the legal system but also the imperative of reforming the legal system to redress those barriers and to better reflect the interests and needs of all people in society. there are numerous valid potential frames that facilitate critical thinking about lawyers’ roles in improving or denigrating clients’ access to justice. in developing students’ individual sense of professional purpose and their future practice objectives it is critical to explicitly name, discuss and reflect on students’ own engagement principles. this is particularly so in the clinical setting where these principles necessarily inform the content and character of teaching modules, stakeholder and community partnerships and specific access to justice and law reform projects. the next two sections examine how principles drawn from vulnerability theory and therapeutic jurisprudence can be utilised to inform the development of students’ thinking about their purpose as lawyers and their objectives for engagement in legal practice. 3.1. clarifying professional purpose and practice objectives: purposive engagement principles derived from vulnerability theory vulnerability theory is a useful starting point to illuminate for students the impacts of the law being normatively premised on the traditional liberal subject and the false assumption that we are a priori equally positioned in society. vulnerability theory, as articulated by martha fineman in 2008, identifies both the universality of vulnerability as an inevitable and enduring aspect of the human condition and the significance of the role of the state in responding to and alleviating 11 ibid 425. reviewed article 41 vulnerability or, conversely, in compounding it.12 fineman’s vulnerability theory essentially proposes a reconceptualisation of the relationship between the state and its subjects. the foundation for this reconceptualisation is recognition that actual and potential vulnerability is a universal and constant attribute of all humans. a key conceptual strength of vulnerability theory is that it highlights the normative relevance of embodied vulnerability and the ensuing inequalities deriving from distinct individual embodied experiences.13 it eschews the notion that vulnerability is synonymous with “victimhood, deprivation, dependency, or pathology”.14 instead, it exposes how all people simply by virtue of their physical embodiment require specific conditions for survival, are necessarily socially and relationally dependent on others at some parts of their lives (for example, as babies/children and again in old age). people are also universally susceptible to dependency at other points because their embodiment makes them prone to illness and injury and susceptible to harm as a consequence of social, economic and political events. following from this, fineman argues that premising analysis of social institutions and socio-political structures on the traditional liberal subject instead of the vulnerable subject is inherently problematic. analysis premised on the vulnerable subject is to be preferred because it disrupts the persistence of inequality that flows from analysis being normatively premised on individualistic conceptions of autonomy and the assumption that we are a priori equally positioned, in the traditional liberal subject. articulating our shared universal vulnerability, as fineman does, challenges the classical liberal paradigm of the rational, free-choosing, autonomous, and able-bodied person of equal standing in society in relation to others.15 it rejects this invulnerable, 12 martha albertson fineman, ‘the vulnerable subject: anchoring equality in the human condition’ (2008) 20(1) yale journal of law and feminism 1 (‘anchoring equality’); martha albertson fineman, ‘the vulnerable subject and the responsive state’ (2010) 60 emory law journal 251 (‘the responsive state’). 13 anna grear, ‘vulnerability, advanced global capitalism and co-symptomatic injustice: locating the vulnerable subject’ in martha fineman and anna grear (eds), vulnerability: reflections on a new ethical foundation for law and politics (ashgate, 2013) 44-46. 14 ibid. 15 fineman, ‘anchoring equality’ (n 12) 15-19. reviewed article 42 disembodied, and de-contextualised liberal subject in favor of a vulnerable subject which is a more authentic justification to protect classes and group identities (such as race and gender) for anchoring substantive equality and distributive justice in liberal democracies. 16 flowing from this, the notion that states have limited responsibilities to able-bodied legal subjects of equal standing is destabilised. instead, the logical corollary of the vulnerable subject is what fineman calls the responsive state.17 attending to the relationship between group vulnerability and the responsive state enables interrogation of a causative relationship between laws and policies, resource availability and distribution, and the resiliencies and dependencies of people. 18 vulnerability theory offers the following four principles that can guide the development of students’ critical thinking about assumptions that underpin the way law is traditionally taught and that clients are traditionally understood: 1. premise legal analysis of client matters on the vulnerable subject rather than the normative traditional white privileged male to challenge assumptions premised on clients as purportedly free-choosing, autonomous, and able-bodied legal subjects of equal standing. 2. examine the relationships between a client’s vulnerability and their social, political and economic positioning in society by scrutinising the interconnectedness of their distinct experiences and their access (or not) to opportunities to accumulate resources or to access social or institutional support. 16 fineman, ‘anchoring equality’ (n 12) 8. 17 fineman, ‘the responsive state’ (n 12) 269. 18 martha albertson fineman, ‘equality, autonomy, and the vulnerable subject in law and politics’ in martha albertson fineman et al (eds), vulnerability: reflections on a new ethical foundation for law and politics (ashgate, 2013) 17, 19. reviewed article 43 3. examine the ways that laws are either vulnerability-mitigating and resilience-building for unequally positioned groups, or resiliencedegrading and dependency-increasing to reveal the structural biases and harms embedded in, and obscured by, the law and legal institutions. 4. in law reform and access to justice project work, aim to reduce, mediate and ameliorate the unequal burden on individuals whose vulnerabilities are generated or exacerbated by legal structural and institutional impacts to address the effects of vulnerability and gradually remedy them. vulnerability theory is a particularly useful lens to assist students to counter fallacies that all clients have equal access to justice in the legal system, including that law is value-neutral or that law students and lawyers can properly meet clients’ needs by relying exclusively on legal reasoning and analysis. therapeutic jurisprudence, as discussed in the next section, builds on this foundational capacity to critique and comprehend the complexity of the law and its impact by providing additional mechanisms to understand the effect and impact of the design and application of the law and a roadmap for purposive, beneficial engagement in practice. 3.2. improving access to justice: purposive engagement principles derived from therapeutic jurisprudence therapeutic jurisprudence, developed initially by david wexler and bruce winick in the late 1980s scrutinises the role of law as an actor and assesses the impact (therapeutic or anti-therapeutic) of legislation and of the application of substantive rules and procedures in legal proceedings.19 wexler has neatly captured the approach as follows: 19 david b. wexler and bruce winick (eds), law in a therapeutic key: developments in therapeutic jurisprudence (durham, 1996). see also david b. wexler, ‘therapeutic jurisprudence: an overview’ (2000) 17 thomas m. cooley law review 125, available at ssrn: https://ssrn.com/abstract=256658; david b. wexler, ‘the dna of therapeutic jurisprudence’ in nigel stobbs, lorana bartels, and michel vols https://ssrn.com/abstract=256658 reviewed article 44 [therapeutic jurisprudence] is an approach that regards the law itself as a potential therapeutic (or anti-therapeutic) agent. it looks at the law in action, not simply at the law in books, and it views “the law” as consisting of rules of law, legal procedures, and the roles of legal actors (judges, lawyers, mental health and other professionals working in a legal context). [therapeutic jurisprudence] is interested in examining the therapeutic and anti-therapeutic consequences of the law, and in proposing ways that the law may be made or administered in a more therapeutic (or less anti-therapeutic) way, but without privileging therapeutic results over due process or other constitutional and related values.20 in assessing the role of law as an actor, therapeutic jurisprudence scrutinises the actors who make and implement legal rules and procedures, including legislators, judges, solicitors and barristers and mental (and other health) professionals. therapeutic jurisprudence thus offers a normative perspective: where possible, the law can and should be designed and implemented to bestow therapeutic benefits and it ought not produce anti-therapeutic effects. as explained by winick: legal rules, legal procedures, and legal actors (such as lawyers and judges) constitute social forces that, whether intended or not, produce therapeutic or antitherapeutic consequences. therapeutic jurisprudence calls for the study of these consequences with the tools of the social sciences to identify them and to ascertain whether the law’s antitherapeutic effects can be reduced, and its therapeutic effects enhanced, without subordinating due process and other justice values.21 significantly, wexler and winick do not claim the paramountcy of therapeutic ends over due process, justice embodied in constitutional rights, or the protection of other (eds), the methodology and practice of therapeutic jurisprudence (carolina academic press, 2019) 3 available at ssrn: https://ssrn.com/abstract=3731574. for an excellent examination of the genesis of the field, the core doctrinal and theoretical foundations and application of therapeutic jurisprudence, see david c. yamada, ‘therapeutic jurisprudence: foundations, expansion, and assessment’ (2021) 75(3) university of miami law review 660. see, in particular david yamada’s examination of how therapeutic jurisprudence is underpinned by three core theoretical bases: the therapeutic or anti-therapeutic operation and impact of the law; the recognition of dignity; and the conceptualisation of compassionate motivation. 20 david b. wexler ‘mental health law and the seeds of therapeutic jurisprudence’ in thomas grisso and stanley l. brodsky (eds), the roots of modern psychology and law: a narrative history (oxford university press, 2018) 78, 79-80 available at ssrn: https://ssrn.com/abstract=3129093. 21 bruce j. winick, ‘the jurisprudence of therapeutic jurisprudence’ [1997] 3 psychology, public policy and the law 184, 185. https://ssrn.com/abstract=3731574 https://ssrn.com/abstract=3129093 reviewed article 45 societal interests. rather therapeutic jurisprudence ensures that laws’ impact is taken into consideration alongside more conventionally recognised considerations. therapeutic jurisprudence is also necessarily interdisciplinary encompassing (at least) law, sociology and psychology. therapeutic jurisprudence has impacted on the practice of lawyers, judges, mental health and related practitioners particularly in juvenile justice, mental health, care and protection, and criminal law22 and therapeutic jurisprudence scholars have exposed the unintentional harms “imposed inadvertently in the course of the everyday application of the law.”23 therapeutic jurisprudence offers the three following crucial practical engagement principles relevant to the formation of students’ sense of their purpose as lawyers: 1. comprehend both the design (legal structures, legislation, procedures) and the application of the law (by all actors who interact with clients, most obviously judges, lawyers, police officers, and other professionals in the relevant area of law being examined) and the crucial interrelationship of these components. 2. engage enthusiastically with actors from other disciplines who interact with our clients including doctors, psychologists, teachers, and social workers to comprehensively understand our clients’ needs and to jointly resolve related issues, where possible. 3. critically examine ourselves as legal actors ensuring that in all interactions with our clients we act beneficially, not detrimentally, to their interests. 22 in children’s law for example, the application of therapeutic jurisprudence principles have focussed increased attention on children’s mental health in assessing the therapeutic impact of committal, care and protection and juvenile justice proceedings and have resulted in better coordination and cooperation between juvenile justice, care and protection and mental health systems. 23 emily buss, ‘developmental jurisprudence,’ [2016] 88 temple law review 741, 749. reviewed article 46 having described the principles and practices underpinning wholehearted lawyering and the purposive engagement principles drawn from vulnerability theory and therapeutic jurisprudence, this section has set out the conceptual underpinning of the inside/out teaching pedagogy that develops students’ individual identity and purpose as two of the core components of their professional identity. the pedagogy is illustrated in diagram 2 below. diagram 2: the inside/out professional identity formation pedagogy the next section examines the application of the inside/out pedagogy in practice. 4. embedding the development of “wholehearted lawyers with therapeutic intent” into the creation of a new clinic this section examines firstly how the justice clinic teaching activities have systematically embedded the development of wholeheartedness as an explicit core professional competency of our clinic students. it then examines how we have purposively shaped our clinic activities and community partnerships by reference to engagement principles drawn from vulnerability theory and therapeutic jurisprudence to encourage students to develop a sense of purpose to achieve a therapeutic and resilience-building impact as lawyers. 4.1. developing wholeheartedness as a core professional competency of clinic students (and teachers) students attend the justice clinic, usually one day per week for 12 weeks across the semester. students self-enrol in the clinic unit; there is no competitive selection wholehearted lawyering teaching principles and practice engagement principles drawn from vulnerability theory and therapeutic jurisprudence professional identity formation reviewed article 47 process. we have done this deliberately to allow for as diverse cohorts as possible and because we believe any law student will benefit from exposure to the development of wholeheartedness regardless of their grades or career aspirations. students do a combination of client facing work in the student legal service and through partner referrals, and access to justice and law reform projects. students also complete eight modules of online asynchronous content and attend five face to face seminars. this content explicitly teaches what is meant by social justice lawyering in practice, what constitutes client-centered lawyering, theories and mechanisms regarding access to justice, the purpose and nature of reflective practice, professional client-facing skills, and what constitutes, and how to achieve, resilience for social justice lawyering in the long term. in terms of assessment, the clinic unit is pass/fail. students must satisfactorily attend and participate in all clinic activities and seminars, complete three critical reflections, complete all assigned professional tasks and complete two self-assessments. seminars, class activities and assessments are explicitly underpinned by brooks’ wholehearted lawyering principles and practices, and by the improving access to justice principles derived from vulnerability theory and therapeutic jurisprudence. diagram 3 below captures how the inside/out pedagogy is applied in practice. diagram 3: application of the inside/out pedagogy in practice. reviewed article 48 the next section provides four examples of how wholeheartedness as a core professional competency is developed in the clinic. firstly, looking at the setting of explicit student and teacher behavioural and engagement expectations. secondly, looking at how students are scaffolded to identify and appreciate their own and others’ context, culture and values. thirdly, examining how students are encouraged to take responsibility for their own part in a strengths, optimistic and growth-based teaching and learning orientation. lastly, looking at critical reflection as a means of monitoring the development of wholeheartedness (for law school and beyond). 4.1.1. behavioural and engagement expectations students are explicitly told in the clinical legal placement introductory seminar that: our hopes for you are that you have an immersive, challenging and inspiring experience in the clinic where you will see the law in action and get to work on advice, casework, policy and project work. alongside this practical lawyering experience, you will also be learning about the role of law and the role of lawyers in advancing social justice and access to justice. throughout your clinic work and through your clinic seminars, you will be asked to think deeply and critically about the law as you have learned it, as you see it and as what? • wholehearted lawyering teaching principles and practice + engagement principles drawn from vulnerability theory and therapeutic jurisprudence = identity formation how? • clinic-based legal work, activities and community partnerships why? • develop wholehearted lawyers with intent to have therapeutic and resilience-building impacts that increase access to justice in practice reviewed article 49 you experience it. you will also be exposed to how others view and experience the law.24 the clinic places are limited to eight students each day so everyone is seen and heard. from the first day in the clinic, the principal solicitor and clinic director are clear with our students that the ten of us are a clinic team: that all behavioural and engagement expectations apply mutually; that we regard kindness, humility and transparency as strengths, not weaknesses; and that we will all make mistakes in the clinic (teachers included) and that we will discuss mistakes and how we can fix them. we encourage students that they will grow their technical and professional skills over the course of the semester and that in the process they may feel discomfort or anxious at times and that they should consciously lean into those feelings as discombobulating moments that they can learn from. we purposively apply a relational ethic of care by encouraging students to speak up, to listen to, and respond to each other with respect. in class discussions we encourage students to express and discuss divergent views and endeavour to model suspending judgment and responding, not reacting, to enable students to have open and inclusive dialogue about issues that are emotionally and politically sensitive and controversial. we assess whether we achieve a learning space that respectfully encourages and accommodates divergent views, in part, by reflecting on students’ comments in anonymous student unit teaching evaluations regarding the extent to which teaching staff embrace and encourage differing perspectives. in guiding these class discussions, we are intentional and explicit about making evidence-based contributions while fostering empathy and compassion. although the subject matter of much of the clinic’s law reform and access to justice work is challenging, we are explicit with the students about each of our individual responsibility for the “climate” of the clinic. we try to consistently model that technically excellent lawyers can also be self–aware, compassionate, optimistic and 24 clinical legal placement unit introductory video seminar. reviewed article 50 kind. we also consciously expose students to other lawyers and stakeholder partners from different areas of the law who exhibit these same personal qualities. doing so, we emphasise to students that wholeheartedness is a competency that can be embraced regardless of the area of law in which a lawyer practices. we also openly discuss with our students how they can, and why they should, develop these qualities of self-awareness, compassion, positivity and kindness alongside technical excellence into their professional identities and their practice of law. we encourage an engagement expectation of being open to, and seeking feedback from, each other and from teaching staff from day one. in doing this, the students come to view feedback as something to be welcomed rather than feared, and as natural, formative and vital to developing a healthy practice and being a life-long learner. this expectation also links cohesively with the critical reflection students are expected to engage in, discussed further below. informal and formal structures are in place for this feedback. for example: students witness the principal solicitor and clinic director give feedback to each other on tasks; we give students written and verbal feedback, individually and as a group, on each assessment and professional task; students are placed in partnerships or groups to collaborate on work where assessing and commenting on each other’s contributions naturally occurs; and we have casual debriefing sessions after client interactions. we also talk explicitly with our students, in the context of teaching client-centered lawyering, about finding their own individual way to centre themselves, through daily exercise, meditation or whatever method works for them, and that knowing and understanding themselves separate from their professional identity as a lawyer is crucial to their long-term personal mental health and well-being and their ability to keep engaging interpersonally and relationally in an authentic way. 4.1.2. appreciating our own and others’ context, culture and values reviewed article 51 before the students commence in the clinic they complete an online orientation module that challenges them to think about their own role as a lawyer by asking them to critically reflect on the following questions: • why they chose to study law? • why might others choose to study law? • if they intend to practice as a lawyer after they finish studying, what type of lawyer they want to be? students are invited to complete the harvard implicit association test if they wish and are introduced to the concept of unconscious bias by reference to contemporary legal issues. they are also introduced to mind-mapping and asked to develop a mind map that requires them to think purposively about their own journey in the law so far. they identify three key public historical events that have effected their decision to study law and the type of lawyer they want to be, three personal beliefs that have impacted their decision to study law and the type of lawyer they want to be; three past experiences that have impacted their decision to study law and the type of lawyer they want to be, and lastly, any readings or theories that have impacted their decision to study law and the type of lawyer they want to be. we then discuss the mind-map and students’ responses to the unconscious bias testing in their face-to-face seminar on the first morning of the clinic. 4.1.3. a strength, optimistic, growth based teaching and learning orientation the clinic is founded on a strength, optimistic, growth-based orientation. the casework, client work, projects and seminars all allow for a range of different learners to play to their strengths and develop new ones. clinic students also complete a selfassessment on their first face-to-face clinic day. they are asked to set personal and professional goals they want to achieve in the clinic, recognise personal strengths that they will use, and identify personal or professional skills they would like to develop. reviewed article 52 we discuss the difference between goals and plans and why it is necessary for us all to articulate our learning and practice goals and plans to understand the extent to which we are achieving them and so that we can continue to develop. at the end of their clinic experience, students complete a second self-assessment, revisiting and reflecting on those goals, strengths and skills they identified. they track their development of the personal and professional goals in the clinic and evaluate the extent to which they have used their personal strengths in practice. they also evaluate the way that they have begun developing the professional and personal skills they wanted to develop in the clinic, discuss their plans for future practice and development as a lawyer and their key learnings, challenges and experiences. 4.1.4. critical reflection as integral to wholehearted lawyering reflection is a “cognitive and affective process or activity that”: “requires active engagement on the part of the individual”; is “triggered by an unusual or perplexing situation or experience”; “involves examining one’s responses, beliefs, and premises in light of the situation at hand”; and “results in integration of the new understanding of one’s experience”.25 in the justice clinic we teach students explicitly why reflection matters for professional identity formation. reflective practice is essential for lawyers because: it enables us to identify the frames and filters that we personally experience the world through (for example, unconscious biases) and because client-centered practice requires us to reflect on the relationship between our intended consequences and the actual outcomes for clients. together with the students after client interactions we ask questions including: • did the client(s) feel heard and understood? 25 russell rogers ‘reflection in higher education: a concept analysis’ (2001) 26(1) innovative higher education 37, 41. reviewed article 53 • did my behaviour contribute to them not feeling properly heard and understood? • what could i do differently next time to achieve a better outcome for my client(s)? by asking these questions both the teaching staff and students receive feedback that can assist us to critically reflect on the quality of our engagement with the client and grow in self-awareness to support our professional identity formation and continual growth. in this way too, students are also taught explicitly that reflective learning takes place intentionally as a direct result of taking responsibility for capturing and reflecting on events to develop our understanding about legal practice in the context of our previous experience, knowledge, values and beliefs. students in the justice clinic are also given explicit instruction about how to write and structure a four-part critical reflection depicted in diagram 4. diagram 4: structuring a four-part critical reflection starting question • describe a key event/events that has impacted you. • detail what it was and when and where it occurred. interpreting the impact • why did this event impact you? • framed as "i think i reacted like this because…” evaluating the experience • why did you find the experience useful/interesting/challenging? • students can make reference to their readings or legal theories in describing the lesson(s) they have learnt. • framed as "i realise now..." future planning • how will you act in the future based on the lessons you have learned? • framed as "in the future i will..." reviewed article 54 students and teaching staff discuss the reflection assessment criteria and satisfactory and unsatisfactory mock reflection examples (written by the clinic director). we then discuss as a class what constitutes a satisfactory and unsatisfactory reflection. we discuss their responses to dewey’s statement: “we do not learn from all experiences; we only learn from the experiences on which we reflect.”26 students are also asked to identify what they think will be the most challenging and rewarding aspects of reflective practice and whether, and if so how, reflective practice can assist us to be aware of our implicit or unconscious biases. students are taught that writing the reflections for assessment is not the goal. instead, learning to reflect in this way so that it becomes second nature, so that we can do it on our feet, every day, in practice is the goal. the students are also given detailed written feedback and an opportunity to discuss their reflections and feedback at any time. in this way, we attempt to address brooks’ observation that: many law teachers want students to be reflective, however, they simply do not spend any class time discussing or offering guidance to students about how to be reflective. further, many of us assign reflection papers without ever discussing what reflective writing needs to look like, or offering a rubric or other information about how students’ reflective writing might be assessed. all of these issues need to be addressed if we want to help students practice reflection.27 4.2. driving clinic activities and community partnerships by therapeutic and resiliencebuilding approaches to the legal system in the justice clinic, students gain practical lawyering experience and direct client contact by assisting the principal solicitor to give advice through the student legal service (“sls”) that runs out of the justice clinic and by assisting the principal solicitor with regular referrals from legal aid nsw for legal aid application work. 26 john dewey, experience and education (macmillan publishers, 1938) 78. 27 brooks, ‘fostering wholehearted lawyers: practical guidance for supporting law students’ professional identity formation’ (n 6) 431. reviewed article 55 the sls provides legal advice to domestic and international students of western sydney university about employment, tenancy and accommodation, consumer rights, debt/credit issues, motor vehicle accidents, traffic offences and minor criminal matters. where the sls is unable to assist a student because the matter falls outside the sls practice areas (for example, migration matters) or where the sls does not have capacity to assist (for example, court representation), the sls provides warm referrals to other services. legal aid nsw also provides regular referrals to the justice clinic to assist their clients to complete applications for legal aid in family law and child protection matters. these referrals come directly from legal aid lawyers working in the family law early intervention unit of legal aid nsw and/or legal aid lawyers working with clients of a western sydney community-based service: the shed. the shed, amongst other activities, provides early intervention support to its clients across legal sectors including family law, crime, child care and protection and housing through stakeholder partnerships that facilitate holistic therapeutic interventions targeting trauma-informed responses. clients referred to the justice clinic through these pathways are usually seeking urgent or early family law orders in the federal circuit court and family court of australia in relation to parenting arrangements or family dispute resolution. students assist by reviewing all background court and evidentiary materials, participating in client appointments to complete legal aid application forms, compiling supplementary material for the applications, and advising legal aid and/or the shed of any other related matter(s) the client may need help with. students also gain practical lawyering experience by working on complex and contemporary access to justice and law reform matters with key non lawyer expert stakeholders. in the last 12 months, these matters have included: drafting a pro bono complaint to the united nations human rights committee; working on a coercive control law reform project with a leading law firm and large not for profit; developing reviewed article 56 a modern slavery lawyer’s manual with a separate large not for profit and other stakeholders; and developing a therapeutic sentencing database with the district court of nsw and the shed to identify therapeutic alternatives to sentencing first nations peoples. students’ participation in these clinic activities and community partnerships is deliberately structured by reference to the vulnerability theory and therapeutic jurisprudence engagement principles articulated in part 3 of this paper. 4.2.1. application of engagement principles drawn from vulnerability theory very few clients of the justice clinic can be characterised as the “traditional liberal subject” of normatively premised white privileged males. when obtaining client instructions, students quickly become aware of the fragility of prior assumptions they may have held premised on clients as purportedly free-choosing autonomous, and able-bodied legal subjects of equal standing. in both the client-facing sls and legal aid work and the clinic project work, students are scaffolded to understand the complex ways that our clients share the universal vulnerabilities of all people but also have legal issues that are regularly directly connected to their social, political and economic positioning in society and their access (or lack thereof) to opportunities to access social or institutional (including legal) support. students witness how clients’ legal matters fit within the broader context of the legal system and broader policy contexts, for example the impacts of inadequate consideration of legislative obligations to recognise cultural norms when representing first nations people in family law and childcare and protection matters. this leads to critical evaluation of the structural biases and harms embedded in, and obscured by, the law and legal institutions. it also leads to critical reflection about the ways that laws are either vulnerability-mitigating and resilience-building or resiliencedegrading and dependency-increasing for unequally positioned groups. reviewed article 57 by engaging in law reform and access to justice project work such as the modern slavery lawyer’s manual and the development of the district court therapeutic sentencing database project, students are engaged in practical ways to reduce, mediate and ameliorate legal structural and institutional impacts on individuals. 4.2.2. application of engagement principles drawn from therapeutic jurisprudence through the clinic project work and the client facing sls and legal aid work students comprehend that the operation and impact of the law encompasses consideration of substantive rules and procedures as well as critical analysis of the role and impact of other professionals who interact with clients. students are briefed to ensure they listen for and identify any related civil issues so the client can be linked in to relevant wrap-around services. further, while legal advice or access is being given directly to the client, students are encouraged to consider the broader context of the advice, for example the client’s family. this is particularly so in complex legal aid application matters in the family law and child care and protection jurisdictions where, if the clinic or sls cannot help, clients are given a warm referral to other legal or civil services. students are led to critically examine whether their own, and our, behaviour and impact as legal actors is beneficial (and not detrimental) in each interaction with a client. applying the principles and practices of wholehearted lawyering previously discussed, students are explicitly guided to be aware of, and develop, the complex core personal, interpersonal, and relational skills needed to ensure beneficial client interactions. this guidance includes shadowing legal advice phone calls to consciously actively listen and to hold client-centered conversations. students then gradually undertake client intake and initial instruction phone calls while demonstrating these same skills. it also encompasses teaching the introductory professional technical skills required to execute delivery of legal advice in plain english after they are admitted to practice, for example, by undertaking professional research tasks to practice research and drafting skills. students are invited to critically reviewed article 58 examine the extent to which they, and we, act beneficially to clients’ interests in pre and post-client interaction debriefing sessions and through their written reflections. further, by assisting with the provision of broad areas of legal advice in the sls, students develop an understanding that they can practice wholeheartedness in any area of law (for example, in employment or traffic matters) and not just in traditional “human rights” matters. the clinic especially models enthusiastic engagement with professionals from other disciplines in our project work. we consciously design our access to justice and law reform projects with stakeholders and partners by taking a multi-disciplinary, therapeutic approach so as to explicitly build capacity and knowledge to achieve a best practice response. for example, the clinic projects of developing a modern slavery manual intended to be publicly available to lawyers australia-wide, and of providing research to inform a coercive control submission for a parliamentary inquiry, both involve collaboration and consultation with multiple partners across a range of professional fields. prior to commencing these projects, students are introduced to the relevant literature and resources in intersecting disciplines and are introduced to, and able to engage in conversation with, relevant multi-disciplinary stakeholders working on the projects who describe the broad needs of the clients and the context for the law reform project work. in this way, students are given practical exposure to other services, practitioners and to the benefits of multi-disciplinary work so that we can comprehensively understand clients’ needs and collaborate with others to jointly resolve related issues. similarly, multi-stakeholder collaborative projects such as the district court therapeutic sentencing database introduces students to the concept of themselves, each other, and others including judges as legal actors. in this project by identifying the adequacy, or not, of sentencing alternatives that judges have at their disposal, students critically comprehend the roles of, and potential limitations on, other actors in the legal system that impact the extent to which clients can access justice in practice. reviewed article 59 working on these projects also introduces students to different mechanisms for accessing justice in addition to the direct individual client work they are doing with the sls and legal aid. this combination of client-facing and project work highlights the relative benefits and impacts of short term and long term lawyering and the different roles that lawyers can play, as part of multi-disciplinary approaches to meeting clients’ immediate needs in a beneficial way while also contributing to systemic change. the combination of immediate client-facing and law reform project work also balances students’ exposure to the realities of peoples’ sometimes complex and distressing legal difficulties (for example, potentially losing contact with a child who is the subject of care and protection removal proceedings) with an opportunity to work towards broader systemic change that addresses underlying issues (for example, a project targeting improved implementation of maintaining children’s cultural connections in child placement determinations). this section has examined how teaching, stakeholder partnerships, client-facing work and projects in the justice clinic have been designed to encourage students to think critically about, and to clarify, the personal and interpersonal characteristics they want to possess as lawyers as well as their individual sense of professional purpose and their practice objectives. this purposive design aims to develop wholehearted lawyers with therapeutic intent: lawyers who are mindful of having a positive impact on individuals accessing justice in their lived context, and who practice with the explicit intention of contributing to therapeutic and resilience-building impacts as part of the legal system. 5. lessons learned and future steps this part briefly discusses lessons learned and some future steps to continuing to develop the justice clinic program. four key lessons have emerged in the last twelve months since the inception of the clinic. firstly, wholehearted lawyering is a teachable and learnable set of core competencies for law students and legal professionals. secondly, wholeheartedness is multi-layered, nuanced and should be reviewed article 60 developed in each year of students’ study; its development should not be limited to the clinical legal education context. thirdly, wholehearted lawyering is a competency that many lawyers value and practice but it may be that they do so without explicit awareness of what it is, how to articulate it or how to be unashamed of it. it may be couched and hidden in phrases or concepts such as “client-centered lawyering”, “soft skills” or “values-driven lawyering”, which potentially devalues the concept, drives it underground and renders it somehow second-tier or “soft”. naming and modelling wholeheartedness as an explicit core professional competency is crucial at a student level so it can be introduced from day one of graduate legal practice and become the norm for legal professionals. lastly, we have had diverse cohorts through the justice clinic in the last twelve months. without exception, each has engaged with the opportunities provided in the clinic to develop the personal, interpersonal, and relational dimensions of their professional identities as lawyers and most have chosen to take steps to candidly lean into discomfort in class discussions and reflections, when they could have chosen not to. regarding future steps, we aim to devise a method to qualitatively evaluate students’ perceptions about the development of their personal, interpersonal and relational professional identities and the development of their understanding of their purpose and the role they play as lawyers, particularly in advancing access to justice. we will also continue to embed wholehearted lawyering principles and practices, underpinned by engagement principles grounded in vulnerability theory and therapeutic jurisprudence in future clinical programs. in conclusion, wholehearted lawyering, vulnerability theory and therapeutic jurisprudence scholarship provide complementary frames that illuminate the relational complexities of the legal system and that challenge traditional assumptions about the role and purpose of lawyers. the inside/out pedagogy proposed in this article, as implemented in the western sydney university justice clinic, proposes a reviewed article 61 model that puts theory and scholarship into practice by explicitly grounding the professional identity formation of wholehearted lawyers with therapeutic intent. practice report 39 ‘the best of times and the worst of times’: reflections on developing a prison-based business law and tax clinic in the midst of a global pandemic helen codd, lucy blackburn, david massey, deborah wood & stephanie jones1 introduction this practice report explores the dynamics, opportunities and challenges of developing an in-prison cle programme offering advice on business law and tax, against the backdrop of the covid-19 pandemic and the pre-existing constraints of prison security. this initiative has its roots in two clinical education initiatives at the university of central lancashire (uclan) an existing business law clinic based in the school of justice, and an experimental low-income taxation advice project run by the uclan business school. the interdisciplinary team taking forward this project includes staff with expertise and experience in taxation, cle, business law, penology, and prison research. 1 helen codd, professor of law & social justice, school of justice, uclan; lucy blackburn, senior lecturer in law, school of justice, uclan; david massey, lecturer in taxation, school of business, uclan ; deborah wood, lecturer in accounting & finance, school of business, uclan ; stephanie jones, senior lecturer in law, school of justice, uclan. email: hlcodd@uclan.ac.uk & leblackburn@uclan.ac.uk mailto:hlcodd@uclan.ac.uk mailto:leblackburn@uclan.ac.uk practice report 40 clinical education at uclan legal education at uclan has a long history of commitment to clinical legal education, and to offering students opportunities to develop ‘real life’ skills and experience, including the provision of legal advice. in the early years, prior to the mid1990s, this was offered via the preston free legal information service, which was based in the law department and which employed a part-time legal caseworker to oversee student volunteers along with experienced and professionally qualified academic staff. this in turn led to the creation of a generalist law clinic, and more recently a specialist business law clinic, which has developed to include a specialist franchise clinic. in addition, uclan works alongside a local solicitors’ firm to provide a free immigration clinic once a month. the business law clinic was established to provide local smes and entrepreneurs with guidance relating to matters such as contracts, intellectual property and gdpr. run by stephanie jones and providing real-world experience for uclan’s students and graduate legal advisers, clients are provided with six months of support which includes written advice and drafting of documentation. helping small businesses and providing experience for otherwise disadvantaged graduates and students casts a less-traditional lens on social justice but it is certainly a valid one. to date, the clinic has advised over 170 small businesses but the need for this type of help is evidenced by a 2018 report of the legal services boardbased on research over five years where they concluded: practice report 41 “we estimate the annual cost of small businesses’ legal problems to the uk economy to be roughly £40 bn. furthermore, 20% of businesses reported health impacts on personnel, which extrapolates to a minimum of 1.1m individuals, with possible knockon effect for health services.”2 over 50% of small businesses try to solve their legal problems completely alone. the legal and regulatory needs of small businesses, start-ups and charities are often overlooked because these organisations are presumed to have money in their budgets that can be used to pay for legal advice, but this becomes unlikely, particularly in an era of difficult trading conditions and rising legal fees. many law firms offer a 30minute free consultation but that is simply not enough to allow a small business to create a compliant structure where problems can be prevented rather than simply latterly reacted to. the business law clinic was the first business-dedicated clinic of its kind in the north west and helps uclan undergraduates and graduates gain otherwise elusive experience of working with commercial clients. the business law clinic attempts to level the playing field for uclan graduates and students whose a-level results or social background may prohibit them from acquiring essential work experience in commercial law firms, which recruit mainly from russell group universities. over 88% of trainee solicitors in commercial law firms are recruited from 2 https://research.legalservicesboard.org.uk/wp-content/media/final-small-business-report-feb2018.pdf (accessed 16 october 2020). https://research.legalservicesboard.org.uk/wp-content/media/final-small-business-report-feb-2018.pdf https://research.legalservicesboard.org.uk/wp-content/media/final-small-business-report-feb-2018.pdf practice report 42 russell group universities3 with most of those trainees coming from middle class backgrounds4. almost 70% of graduate employers see relevant work-experience as an essential part of a graduate job application5. in addition, a group of students and staff began delivering will-writing sessions in a local training prison in 2019, and there are clear potential links between will-writing, financial planning and taxation matters. within the business school at uclan, the law and taxation modules offered have adopted an ephebagogic philosophy (developing students as emerging adults) but, within an accounting curriculum geared to professional exemptions, have struggled to incorporate the exposure to the real-world that this requires.6 business schools fall well behind their law school colleagues in offering clinical opportunities to their students and in providing pro bono services for those in need of them. an opportunity arose to begin addressing this missing element in students’ learning via the creation of a low-income tax clinic. this was a partnership between uclan’s business school, lancaster university law school and the national charity, taxaid. the clinic completed its 10-week pilot stage in march 2020 just days before university campuses moved to online delivery and remote working where possible. although 3 http://www.chambersstudent.co.uk/where-to-start/newsletter/law-firms-preferred-universities accessed 16 october 2020 4https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/434791/a_qualitativ e_evaluation_of_non-educational_barriers_to_the_elite_professions.pdf accessed 15 october 2020. 5 https://www.ucas.com/connect/blogs/work-experience-important accessed 15 october 2020. 6 lucy blackburn, 'ephebagogy and clinical legal education' [2020] 27(2) international journal of clinical legal education <https://www.northumbriajournals.co.uk/index.php/ijcle/article/view/962> accessed 29 october 2020 http://www.chambersstudent.co.uk/where-to-start/newsletter/law-firms-preferred-universities https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/434791/a_qualitative_evaluation_of_non-educational_barriers_to_the_elite_professions.pdf https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/434791/a_qualitative_evaluation_of_non-educational_barriers_to_the_elite_professions.pdf https://www.ucas.com/connect/blogs/work-experience-important practice report 43 short, the pilot was sufficient to demonstrate that there was a demand for tax advice that uclan business students could fulfil7. prison research at uclan interdisciplinary prison research is a key strength at uclan, including demonstrable strong links with local criminal justice agencies and institutions, including prisons, and a strong record of conducting research in prison settings and working with a range of professionals in consultative roles. the cross-faculty criminal justice partnership includes a specific prisons strand and thus students involved in delivering the proposed clinic will be supported by staff with extensive practical experience and a high level of expertise in working in prison settings.8 why set up a business law and tax clinic in a prison? there are both pragmatic and theoretical justifications for developing and delivering a prison-based business law and tax clinic. indeed, tax clinics are offered in prisons by 7 amy lawton and david massey, 'out and about north west tax clinic and pro bono tax advice' [2020] 186(4765) taxation <https://www.taxation.co.uk/articles/north-west-tax-clinic-and-pro-bonotax-advice> accessed 29 october 2020 amy lawton and david massey, 'opening our doors' [2020] october 2020 tax adviser <https://www.taxadvisermagazine.com/edition/5756> accessed 29 october 2020 8 for the purposes of this article, the term ‘prison’ will be used in its broadest sense, as the location of the detention of some of those people who are awaiting trial or sentence, and the location of the detention of those offenders who receive custodial sentences including imprisonment (for adults aged 21+) and young offenders (under 21). this broad definition, therefore, includes establishments which are not technically ‘prisons’ as they are, for example, ‘young offender institutions’ for those aged under 21. practice report 44 a number of us law schools, including harvard, fordham and several others. universities in the uk often deliver programmes within prisons, one of the most wellknown being the range of “learning together” programmes which to date have involved over 600 students9. alongside this there are free legal and advice services, some of which utilise volunteers including students. these often focus on prisoner welfare, family contact, family disputes and planning for release, including issues of housing and welfare benefits. at first glance, it may not be apparent that there is an unmet need for prisoners to have access to advice about business law and taxation. however, as a consequence of the publicity for the tax clinic the staff involved were approached (through twitter) by a social enterprise and asked whether students might also assist prisoners to resolve their tax issues with her majesty’s revenue and customs (hmrc). it became clear that the tax difficulties facing prisoners mirrored those faced by the tax clinic’s low-income clients, in particular the challenges of getting up-to-date with outstanding tax returns. this unmet need is exacerbated by the prison setting. the pilot study had already identified digital and telephonic poverty and exclusion as a difficulty for many of the tax clinic clients. hmrc closed the last of its local enquiry centres in 2014, replacing these initially with telephone helplines. more recently hmrc has been moving to the 9 see natalie gray, jennifer ward and jenny fogarty, (2019) ‘transformative learning through university and prison partnerships: reflections from ‘learning together’ pedagogical practice’. journal of prison education and re-entry, 6 (1). pp. 7-24. http://eprints.mdx.ac.uk/view/publications/journal_of_prison_education_and_reentry.html practice report 45 use of online services as the preferred medium for interaction with its customers. this poses particular problems for prisoners, who have limited and controlled access to telephones and very restricted and limited internet access. whilst it is usually the case that prisoners are denied internet access, there may be occasions where prisoners are given limited access to selected websites via ‘locked down’ terminals and laptops. there is no automatic sharing of information between hm prison and probation service (hmpps) and hmrc, and thus hmrc do not know that another arm of government holds the individual as a prisoner. for prisoners who are self-employed prior to their sentence, a custodial sentence can lead to the cessation of trading, but hmrc will continue to send demands for tax returns and payments to old addresses, unaware that the individual is incarcerated. the minimum penalty for being a year late with a tax return is £1,600 even if no tax is due. a shock can await a newly released prisoner, once hmrc have a new address to which to send demands which may stretch back years. penological research has highlighted many aspects of the challenges faced by prisoners on release.10 prisons offer vocational training in a range of skills, but exprisoners often find that their criminal history is a barrier to employment. the challenges of finding employment are being exacerbated by the impacts of covid-19, and governmental and public health responses to control the spread of the virus. 10 eldon maguire and peter, raynor, ‘preparing prisoners for release: current and recurrent challenges’ in pamela ugwudike, hannah graham, fergus mcneill, peter raynor, faye s. taxman, chris trotter (eds) the routledge companion to rehabilitative work in criminal justice (routledge, 2020), pp. 520–532. practice report 46 although the precise impacts of covid-19 and the first uk-wide lockdown are as yet unknown, and indeed there may be further local, regional and national lockdowns11, it is clear that the uk is in a period of economic recession, and at the time of writing unemployment is rising and many businesses are either ceasing to trade, restructuring including staff redundancies, or ceasing recruitment to new posts. this makes accessing employment even more challenging for people leaving prison. with this in mind, self-employment may offer the only feasible route to non-criminal economic engagement, and indeed the vocational skills opportunities offered in men’s prisons include a range of skills which would lend themselves to self-employment after release, such as skills as car mechanics, and in building and related trades. indeed, the desire to become self-employed or set up a business after release was highlighted by the forward trust in august 2020, in response to data released in july that showed 88% of offenders released from custody between march and june who were available to work were unemployed.12 that said, even if the desire is there, ex-prisoners may not have the basic awareness or knowledge of relevant legal and taxation requirements to feel confident in going ahead to ‘go it alone’ or set up small businesses after release. grosholz et al. highlight that the current literature indicates there is little research on the effect of entrepreneurial training on the behaviour and identity of those who have been 11 this article was written before the second national lock-down in england in november 2020 12 community performance quarterly release to march 2020, ministry of justice, july 2020. see www.forwardtrust.co.uk accessed 1 september 2020. https://www.gov.uk/government/statistics/community-performance-quarterly-update-to-march-2020 http://www.forwardtrust.co.uk/ practice report 47 incarcerated.13 this project enables students to be involved in a project which could have real impact in an emerging field of entrepreneurship research, as well as on cle research. more broadly, the research on desistance from offending, community reintegration and resettlement after release, stresses the significance of strong family and community relationships in preventing reoffending in the future. this project could have long term individual and societal benefits in helping convicted offenders move on from prison to become economically independent. it is important to set out from the outset that although this in-prison clinic is being developed for delivery in a men’s prison, in the future we would like to explore the needs of women prisoners in women’s prisons. research with women prisoners has demonstrated long-running concerns about employment after release, especially as women ex-prisoners have a high unemployment rate, and existing prison educational and vocational programmes often focus on skills which would translate well to selfemployment and the creation of small businesses, as exemplified in the hair and beauty training salon at hmp styal.14 13 jessica m. grosholz, jean d. kabongo, michael h. morris, ashley wichern (2020) ‘entrepreneurship education in the transformation of incarcerated individuals: a review of the literature and future research directions’, international journal of offender therapy and comparative criminology 64(15) pp. 1551-1570. 14 prison reform trust & working chance (2020) improving employment opportunities for women with criminal convictions, london (prison reform trust 2020). https://journals.sagepub.com/doi/10.1177/0306624x20928020 https://journals.sagepub.com/doi/10.1177/0306624x20928020 https://journals.sagepub.com/doi/10.1177/0306624x20928020 https://journals.sagepub.com/doi/10.1177/0306624x20928020 practice report 48 cle as social justice from a more theoretical perspective, although cle was being discussed in the 1930s15, the cle movement began in earnest in post-1968 europe and was grounded in social reform. at that time, basic legal services were available to just a few and revealed the major inequality of access to justice for the vast majority. 16 the provision of free legal advice to those in need is one of the central themes of cle, as one of the main ideological aims of cle is the commitment to educating lawyers for social justice.17 pro bono legal advice has been around in many guises for many years. a law clinic, in whatever format or guise, will introduce students to the local community. with cle projects, students are placed in situations outside of their perceived comfort zone and are given the opportunity to interact and empathise with a diverse range of people from a diverse range of backgrounds.18 cle is often associated with the provision of legal aid to the poor, marginalised and disadvantaged in society.19 however, in the purest form of the pro bono clinic, its 15 jerome frank ‘why not a clinical lawyer school? [1933] 81, university of pennsylvania law review 907, 915 16 jeff giddings, roger burridge, shelly am gavigan and catherine f klein, ‘the first wave of modern clinical legal education: the united states, britain, canada and australia’ in frank s bloch (ed), the global clinical movement: educating lawyers for social justice (oxford university press, 2011), 3 17this is the central theme of bloch in frank s. bloch (ed), the global clinical movement: educating lawyers for social justice (oxford university press, 2011). 18 lucy blackburn, ‘ephebagogy and clinical legal education’, int’l j clinical legal educ (2020), 135 154, 152 19 frank s. bloch & mary anne noone ‘legal aid origins of clinical legal education’ in frank s bloch (ed), the global clinical movement: educating lawyers for social justice (oxford university press, 2011) 153 practice report 49 principal purpose is to deliver legal services to those who could not otherwise afford them, to right the wrongs that would otherwise go without redress. it may raise students’ consciousness of inequality and injustice and provide the academic with the means of salvaging his conscience.20 at the heart of any cle programme, whether it be a credit bearing module or extracurricular volunteering, running alongside the deep learning experience, will be the promotion of access to justice. in the 1960’s the anti-poverty and civil rights campaigns in the united states saw law clinics develop, helped by the backing of many charities.21 in the uk, many law clinics have helped to ‘plug the gap’ in legal services which resulted in the cuts to legal aid following the introduction of the legal aid, sentencing and punishment of offenders act 2012 (laspo).22 globally, a number of projects are assisting the social justice/access to justice agenda within university law clinics.23 these can range from refugee law clinics in the central european and baltic states,24 women’s law clinics in nigeria,25 to the 20 max weaver, ‘clinical legal education – competing perspectives’ (1983) 17 law teacher 1, 4 21 hugh brayne, nigel duncan & richard grimes, clinical legal education: active learning in your law school (blackstone press limited) 1998, 11 22 there are fascinating arguments about whether law clinics should be addressing this gap in the legal services market, but these are not relevant to this brief report. 23 ‘social justice through access to justice is aimed at educating the neglected members of a community whiles addressing their legal problems. ibijoke patricia byron, ‘between social justice and clinical legal education: a case study of the women’s law clinic, faculty of law, university of ibadan, nigeria’, int’l j. clinical legal educ 20 at 567 24 stephan anagnost, ‘promoting refugee law as a means of challenging the status quo at university level education in europe: the role of the refugee law clinic’ int’l j. clinical legal educ, [2014] 38 25 byron above practice report 50 internationally renowned innocence project.26 examples in the uk include the community legal outreach collaboration keele (clock), which is an ‘innovative multi-agency initiative driven by legal academics, in collaboration with the legal profession, court and charitable sector’27 and also the work with the third sector that has been conducted by the university of cardiff law clinics.28 students who may have just left home for the first time are put into direct contact with issues that may never have affected their community.29 anagnost argues that cle “encourages good humanitarian attitudes plus the combination of theory and practice”.30 even though she writes in the context of cle in nigeria, byron’s writings on the link between social justice and legal education are relevant to domestic cle. within byron’s writings she refers to voyvodic and medcalf and their assertion that when a social justice mission is established within a guided practice setting, the students are 26 ‘the innocence project, founded in 1992 exonerates wrongly convicted persons through dna testing and works to reform the criminal justice system to prevent future injustice.’ whilst it is not wholly a clinical law programme, of the 56 us based organisations within the network 26 are located within universities. www.innocenceproject.org 27 for more information see jane krishnadas, ‘clock ‘the community legal companion; as an agent of change: a transformative methodology’’ in re-imagining clinical legal education. linden thomas, steven vaughan, bharat malkani and theresa lynch (eds) (hart publishing, 2018) 28 see jason tucker, ‘thirdsectorfunded clinical legal education in the united kingdom: a reflection and proposal for future partnerships’ in in re-imagining clinical legal education. linden thomas, steven vaughan, bharat malkani and theresa lynch (eds) (hart publishing, 2018) 29 seear et al argue that cle ‘ provides a unique opportunity for students to deeply engage with emotions, in part because emotions are experienced as a regular feature of clinics’: kate seear, lisa bliss, paula galowitz & catherine f. klein ‘ exploring the role of emotions in clinical legal education: inquiry and results from an international workshop for legal educators’. the law teacher, 53: 4 [2019], 487-499, 489 30 stephan anagnost, ‘promoting refugee law as a means of challenging the status quo at university level education in europe: the role of the refugee law clinic’, int’l j. clinical legal educ, 38 [2002) 41 practice report 51 provided with a “key linkage” between their legal education and also the long-term engagement with the advancement of social justice.31 there are therefore strong social justice arguments for cle projects to engage with prisons and prisoners. in england & wales the prison population is the highest in europe, and, as in many countries, particularly the us, there has been a shift over the last two decades towards increasing use of imprisonment and the imposition of longer sentences than previously, which exceed sentences for comparable offences in many other jurisdictions. at the moment, the biggest prison-building programme in england and wales since the 19th century is underway, and this inexorable ‘prison boom’ shows no signs of abating despite governmental stated aspirations to limit the use of short prison sentences. that said, prisons and prisoners are often invisible in our society and among our students unless and until imprisonment is experienced within their own family, kin and friendship groups, or until they encounter prison issues as part of penology and criminal justice modules.32 some students, of course, are former prisoners themselves, or have long experience of imprisonment affecting family members, but for many this kind of clinic activity would offer them their first opportunity to work within a closed setting, and could challenge their pre-existing views of prisons, prisoners and ex-prisoners. a growing body of work acknowledges 31 byron, p.564 32 helen codd, in the shadow of prison: families, imprisonment and criminal justice, (willan, 2008). practice report 52 the importance of empathy in ethical leadership and recognises the importance of presenting students with opportunities to see life through the eyes of others. developing the business law and tax clinic during the pandemic even without the covid pandemic, setting up an in-prison clinic for students poses a wide and varied range of challenges. prisons vary widely not only in their security categorisations, but also in terms of management attitudes to interaction with students, and also the constraints of staffing available to oversee such interactions and ensure safety and security for all involved. uclan is exceptionally well-situated for prison work. in addition the prisons in the north west range from hmp kirkham and hmp thorn cross (which are category d open prisons) to busy and overcrowded city-centre local prisons (hmp preston and hmp manchester) and prisons for those serving longer sentences including hmp garth and hmp wymott, which are on adjoining sites. this is helpful in terms of taking the project forward, because although some of these prisons are in semi-rural areas, they are all relatively accessible in comparison with prisons in other parts of the uk, such as hmp haverigg in cumbria and hmp dartmoor. this project also benefits from existing working relationships between staff on the team and prisons, and informal discussions indicated that the initiative would be likely to be welcomed by a number of prisons, so approval in principle was not regarded as problematic. practice report 53 the impact of the pandemic however, particular questions and issues have arisen in the context of the impact of covid-19 on prison regimes, including access and visits, which were halted as a consequence of the lockdown and are now very limited33. covid-focused scrutiny inspections of establishments, the reports of which are published by hm inspectorate of prisons, highlight very limited and restricted opportunities for contact not only between prisoners but also between prisoners and their friends, families and outside organisations. it is also important to recognise that immediately prior to the development of the pandemic in the uk early in 2020, there were emerging limitations on face-to-face contact between university students and prisoners, following a review of such contacts which followed the terror attack at a learning together event at fishmonger’s hall in november 2019. as in many aspects of university activities, the obvious response would be to deliver a fully online programme for all participants. the precise nuances of this mode of operation are heavily regulated, however, by restricted prison internet access and security rules, combined with prison it infrastructural issues. discussions are underway with the staff of the social enterprise, which already has staff based in prisons, and thus even if students are not approved for face-to-face contact with prisoners via the internet, with appropriate clearance 33 kay, chris (2020): covid-19 in custody: responding to pandemics in prisons in england and wales. british journal of community justice,. https://hdl.handle.net/2134/12624596.v1 accessed 14 september 2020. https://hdl.handle.net/2134/12624596.v1 practice report 54 students may be able to assist in providing advice via the social enterprise staff as intermediaries. practical challenges in advance of launching the clinic, students within the business school have been tasked with addressing the challenges that both the covid-19 restrictions and the general digital restrictions have posed for the social enterprise and the prisoners and ex-prisoners that they work with. for level 5 coursework they are currently exploring, for example: • how to translate online materials into paper formats – where there is no option to click through a link for further information; • how to use language and images that are most effective at communicating to those without strong literacy and numeracy skills; • ways either to work with hmrc’s online systems or to challenge the authorities to change them. it was planned initially that the clinic would operate in pilot form from january to may 2021, although this has been delayed due to the pandemic. a virtual clinic model has been devised which will depend on close collaboration between the social enterprise organisation working in the prison and student volunteers. the business law clinic had to move swiftly to virtual meetings in march 2020 and thus provided practice report 55 an inadvertent pilot for some aspects of the prison-centred advice clinic. the social enterprise will identify business start-up project work for their clients which will be completed by small interdisciplinary student teams. students will be supported by academics across the business school, school of justice and criminal justice partnership. thus, even if the face-to-face client experience may be missing for some time yet, there are still many opportunities to give students the chance to work on real life problems and to begin thinking in a client-focussed way. this model also gives the students the opportunity to work with the not-for-profit sector, something that is different to the usual commercial opportunities that students are offered. the project will allow the learner to explore unfamiliar settings and interactions. from a user point of view, the multidisciplinary approach, including law-focused, taxationfocused and business-focused students means that the offering is an enhanced, multiperspective and holistic wraparound programme which offers more joined-up support to people wanting to establish their own businesses after release than a singledisciplinary project could provide. it is envisaged that the clinic will continue to offer ‘through the gate’ support after release as well as pre-release, so as to enable new entrepreneurs and business owners to develop the appropriate skills, awareness, experience and knowledge to make a success of their business after release. online technology, including websites and apps, is attractive for the delivery of clinic programmes generally for a number of reasons, including convenience. that said, internet access in prisons has historically been very limited, as has (legal) possession practice report 56 of mobile phones. there has been a scheme enabling family members to send emails to prisoners for some years, but this would only be useful in limited aspects of providing advice, such as in relation to sending documents. similarly, prisoners themselves may need support in accessing and using online technologies, as especially if they have served long sentences, they may not have any relevant skills in using mobile or it technologies. in many ways, it would seem easier to run an in-prison clinic face-to-face rather than try to negotiate the manifold challenges of enabling prisoners to access the internet, although broadening prisoners’ internet access is a matter of ongoing policy debate. however, the pandemic prompted attempts at radical change in many establishments, including the distribution of ‘locked down’ mobile phones to prisoners, allowing access only to certain approved telephone numbers, and the introduction of internet-based purple visits for family contact. the purple visits secure video calling platform offers what their provider refers to on their website as “a feature-rich video calling solution specially designed for use within secure establishments’”34 the platform offers military-grade encryption and claims to offer a reliable, simple-to-use and cost-effective means of allowing prisoners and their families to remain in contact. as a consequence of the pandemic, most prisons in the uk have introduced purple visits, which are available to prisoners aged 18+, and offer a 30-minute visit once a month. the exact process for setting up the visit varies from prison to prison, some allowing a choice of pre-booked visit times. 34 see www.purplevisits.com practice report 57 the experience of introducing this platform for visits has prompted mixed reactions. many prisons are viewing the process as a positive development, especially in facilitating contact between prisoners and family members who would not able to travel to the prison for a face-to-face visit in non-pandemic times. however, emerging anecdotal evidence reveals that the experiences of users themselves to date have been more mixed.35 these video calls rely on those outside the prison having access to hardware on which they can install the app, and also the ability, skills and capacity to use it. the early months of usage have seen ongoing technical problems, including calls disconnecting and cutting out frequently, much to the frustration of the prisoners and family members themselves. this platform could, in theory, offer a viable way forward for offering clinic appointments, subject to improvements in the infrastructure and the approval of prison management. however, a key issue with purple visits is one of cost. while these ‘visits’ are being offered free of charge at present as an alternative to face-to-face visits which may not be permitted during the pandemic, hmpps was already exploring the potential for video-calling prior to 2020, when there were discussions around a proposed charge for such ‘visits’ of £8-10 per session. when we discuss clinical education clinics, these are relatively low-cost, as students are volunteers and whilst there may be transport and consumables costs, these are not likely to be high. 35 personal communications, ‘lessons from the lockdown’ online seminar, university of south wales, 17th september 2020. recording is available at https://criminology.research.southwales.ac.uk/news/2020/video-lessons-lockdown-prisoner-andfamily-connections-future/ https://checkpoint.url-protection.com/v1/url?o=https%3a//eur03.safelinks.protection.outlook.com/%3furl%3dhttps%253a%252f%252fcriminology.research.southwales.ac.uk%252fnews%252f2020%252fvideo-lessons-lockdown-prisoner-and-family-connections-future%252f%26amp%3bdata%3d02%257c01%257cmike.maguire%2540southwales.ac.uk%257c023948fe2d244de0797708d85e13bea8%257ce5aafe7c971b4ab7b039141ad36acec0%257c0%257c0%257c637362786179303585%26amp%3bsdata%3drrpwffc7b6c%252fqoyaijy%252bkkhzhrg0mmuyoxeryxrrobe%253d%26amp%3breserved%3d0&g=mmmzmddinzq5njdhmjrinq==&h=mtq0zmu3mmnhzdcxogmxota1nzyyzjqwzti2ywzlzmnhodmwzmmzzdvmzdrimzbmmdhmnda5mzgzzguxnmmzyg==&p=y3axztp1y2xhbmxpdmu6y2hly2twb2luddpvzmzpy2uznjvfzw1hawxzx2vtywlsomq3ogjiyznknzq4nzk1mthjmdu0mmuymdhkyzvjodvhonyx https://checkpoint.url-protection.com/v1/url?o=https%3a//eur03.safelinks.protection.outlook.com/%3furl%3dhttps%253a%252f%252fcriminology.research.southwales.ac.uk%252fnews%252f2020%252fvideo-lessons-lockdown-prisoner-and-family-connections-future%252f%26amp%3bdata%3d02%257c01%257cmike.maguire%2540southwales.ac.uk%257c023948fe2d244de0797708d85e13bea8%257ce5aafe7c971b4ab7b039141ad36acec0%257c0%257c0%257c637362786179303585%26amp%3bsdata%3drrpwffc7b6c%252fqoyaijy%252bkkhzhrg0mmuyoxeryxrrobe%253d%26amp%3breserved%3d0&g=mmmzmddinzq5njdhmjrinq==&h=mtq0zmu3mmnhzdcxogmxota1nzyyzjqwzti2ywzlzmnhodmwzmmzzdvmzdrimzbmmdhmnda5mzgzzguxnmmzyg==&p=y3axztp1y2xhbmxpdmu6y2hly2twb2luddpvzmzpy2uznjvfzw1hawxzx2vtywlsomq3ogjiyznknzq4nzk1mthjmdu0mmuymdhkyzvjodvhonyx practice report 58 however, purple visits as a means of delivering the clinic programme will need to be funded, and prisoners and their families may not have the financial resources to support this. going forward, we are exploring the potential for professional sponsorship of these sessions, perhaps via partnerships with local firms and businesses, and also looking for funding from several sources, including those offering financial support for ex-prisoners and those leaving custody. the costs may not be high in relative terms, but as purple visits are not free of charge, if we seek to run the prison clinic via this platform then even if this is feasible, the calls will need to be funded. a related issue is one of oversight and staffing within the prison. for example, prisons have experienced unprecedented cuts in staffing numbers in recent years, and in many institutions, this lack of staff has led to lower levels of access to educational and recreational opportunities as there are no staff available to supervise prisoners’ movement. ironically, the covid situation means that over the next months and year, as the consequences of both the covid epidemic and brexit emerge, more and more prisoners and ex-prisoners may need tax and business advice, but the combination of pre-covid funding cuts and the challenges of coping with covid itself in a closed setting may mean that prison management and staff have to put all their energy and resources into the core business of keeping prisons and prisoners safe and well, with little flexibility as to the introduction of new programmes. that said, one of the advantages of this programme, if we are able to negotiate a platform and process for delivering it in-prison, is that it will offer students practice report 59 opportunities to gain clinical experience at a time when face-to-face working in many situations is impossible, especially in areas experiencing high numbers of virus cases. conclusion at the time of writing the clinic is very much ‘work in progress’, subject to unpredictable changes in government guidance, changes in prison management, priorities and regimes, and also subject to changes in decision making at the university institutional level. the rationale for going forward and delivering a clinic remains clear, and there are clear potential positive impacts for students, prisoners and exprisoners. the precise shape, structure and delivery method is still undergoing development. evidence-based evaluation of the impacts and outcomes of the programme will be integral to the design and delivery, and thus in due course we look forward to being able to look back and reflect on the final project. the need is still there, and our commitment is still there, but if covid-19 has taught us all only one lesson, it is that change is constant and that, in clinical education like many things, a flexible and change-responsive approach is essential. references anagnost, s. ‘promoting refugee law as a means of challenging the status quo at university level education in europe: the role of the refugee law clinic’ int’l j. clinical legal educ, 38 (2002) 41 practice report 60 blackburn, l. 'ephebagogy and clinical legal education' [2020] 27(2) international journal of clinical legal education 152 <https://www.northumbriajournals.co.uk/index.php/ijcle/article/view/962> accessed 29 october 2020 bloch, f.s. & noone, m.a. ‘legal aid origins of clinical legal education’ in frank s bloch (ed), the global clinical movement: educating lawyers for social justice (oxford university press, 2011) 153 brayne,h. duncan, n. & grimes, r. clinical legal education: active learning in your law school (blackstone press limited, 1998), 11 byron, i.p. ‘between social justice and clinical legal education: a case study of the women’s law clinic, faculty of law, university of ibadan, nigeria’ int’l j. clinical legal educ 20 at 567 codd, h. ‘in the shadow of prison: families, imprisonment and criminal justice’ (willan, 2008). community performance quarterly release to march 2020, (ministry of justice, july 2020): .www.forwardtrust.co.uk accessed 1 september 2020. frank, j. ‘why not a clinical lawyer school? [1933] 81, university of pennsylvania law review 907, 915 giddings, j., burridge, r., gavigan, s. and klein, c. ‘the first wave of modern clinical legal education: the united states, britain, canada and australia’ in frank s bloch (ed), the global clinical movement: educating lawyers for social justice (oxford university press, 2011), 3 gray, n. ward, j. and fogarty,j. [2019] ‘transformative learning through university and prison partnerships: reflections from ‘learning together’ pedagogical practice’. journal of prison education and re-entry, 6 (1). pp. 7-24. grosholz,j., kabongo,j., morris, m.,& wichern, a. [2020] entrepreneurship education in the transformation of incarcerated individuals: a review of the literature and future research directions, international journal of offender therapy and comparative criminology 64(15) pp. 1551-1570. kay, c. (2020): covid-19 in custody: responding to pandemics in prisons in england and wales. british journal of community justice [2020] https://hdl.handle.net/2134/12624596.v1 accessed 14 september 2020. https://www.gov.uk/government/statistics/community-performance-quarterly-update-to-march-2020 https://www.gov.uk/government/statistics/community-performance-quarterly-update-to-march-2020 http://www.forwardtrust.co.uk/ http://eprints.mdx.ac.uk/view/publications/journal_of_prison_education_and_reentry.html https://journals.sagepub.com/doi/10.1177/0306624x20928020 https://journals.sagepub.com/doi/10.1177/0306624x20928020 https://journals.sagepub.com/doi/10.1177/0306624x20928020 https://hdl.handle.net/2134/12624596.v1 practice report 61 krishnadas, j. (2018) ‘clock: 'the community legal companion' as an agent of change: a transformative methodology’ in re-imagining clinical legal education. thomas, l., vaughan, s., malkani, b. and lynch, t. (eds) hart publishing 2018 lawton, a, and massey, d., 'out and about north west tax clinic and pro bono tax advice' [2020a] 186(4765) taxation <https://www.taxation.co.uk/articles/northwest-tax-clinic-and-pro-bono-tax-advice> accessed 29 october 2020 lawton, a. and massey,d. 'opening our doors' [2020b] october 2020 tax adviser <https://www.taxadvisermagazine.com/edition/5756> accessed 29 october 2020 maguire, e. and raynor, p. ‘preparing prisoners for release: current and recurrent challenges’ in pamela ugwudike, hannah graham, fergus mcneill, peter raynor, faye s. taxman, chris trotter (eds) the routledge companion to rehabilitative work in criminal justice (routledge, 2020), pp. 520–532. prison reform trust & working chance, improving employment opportunities for women with criminal convictions, (prison reform trust, 2020_ seear,k. bliss, l., galowitz, p. & klein, c. ‘ exploring the role of emotions in clinical legal education: inquiry and results from an international workshop for legal educators. the law teacher, 53: 4 (2019), 487-499, 489 tucker, j. (2018) thirdsector-funded clinical legal education in the united kingdom: a reflection and proposal for future partnerships in re-imagining clinical legal education. thomas, l., vaughan, s., malkani, b. and lynch, t. (eds) hart publishing. weaver,m. ‘clinical legal education – competing perspectives’ (1983) 17 law teacher 1, 4 reviewed article designing and implementing an enhanced clinical program in the age of disruption. part two: clinical activities[footnoteref:1] [1: for part one: see horrigan, b. ‘designing and implementing an enhanced clinical program in the age of disruption. part one: the environment for clinic.’ international journal of clinical legal education 26.2 (2019): 75-104.] professor bryan horrigan[footnoteref:2] [2: bryan horrigan ba, llb (hons) (qld), dphil (oxon); is the dean of the faculty of law at monash university, melbourne, australia. i am grateful to emeritus professor adrian evans for comments, jarryd shaw for research assistance, and the editors and anonymous peer reviewers for comments, and assistance with the diagram. all responsibility is mine.] introduction part one of this article addressed key institutional challenges in designing and implementing an enhanced clinical program, informed by a law dean’s perspective on the various institutional and individual interests involved. part two of this article engages with some of the key controversies and disruptions with which an enhanced clinical program needs to engage in the 21st century, one way or another. the underlying theme in this concluding part of the article is the repositioning of legal clinical programs and legal clinicians within their broader and fluid surrounding environments. testing the outer limits and purposes of legal clinics one key disruption for legal clinical programs concerns challenges from reconceptualising them in the context of the changing landscape around them. many clinics in many law schools in many countries adhere to a model that is predicated upon providing free legal advice and assistance to the most vulnerable, marginalised, and disadvantaged people in society. in the first section of this part of the article, i accept as a ‘given’ that this model will continue to have a central role in cle programs. however, i question whether the context for the evolution of that model to meet that societal need conclusively determines the only or best model for cle programs from here onwards. moreover, even where that traditional model dominates, it relies upon premises and assumptions whose own contingencies are worth re-examination. is it inherent and integral to the notion of a legal clinic that it operates outside the private sector and serves only a social justice constituency and only for free? increasingly, the 2st century answer to that question is likely to be ‘no’, or at least ‘not always’. that answer is controversial and arouses strong views on all sides of the fundamental questions addressed and amongst the various stake-holding interests implicated. a few elements of that answer therefore warrant further and discrete unpacking, as follows. first, the areas of socio-economic need encompassed by access to justice are neither confined neatly to non-commercial areas of law (e.g. residential tenancy is a commercial matter, as is consumer mistreatment by banks) nor experienced only by those who are poor, vulnerable, or disadvantaged individuals. for example, small businesses and franchises (which are often family-run businesses) are also suitable subjects of socio-economic justice, and can be just as exploited as other constituencies needing access to justice. even relatively well-resourced ngos and multi-stakeholder coalitions need support to achieve better access to justice outcomes by holding multinational corporations and governments to account for human rights abuses through stakeholder lobbying, shareholder activism, and third-party interventions (where permitted) in commercial arbitration. secondly, many areas of traditional clinical focus can now be characterised simultaneously in more than one way, cutting across boundaries between sectors, departments of law, and areas of legal practice. for example, human rights are no longer a matter primarily for international and public law and of concern mainly to governments and civil society groups, in an era of transnational ‘hard’ and ‘soft’ law concerning the responsibilities of multinational corporations and other business enterprises (including law firms and law schools, for this purpose) in protecting and enhancing people’s human rights. similarly, victims of human rights abuses are not the only worthy stakeholders in need of clinic-amenable assistance and advice when engaging with companies about their approach to corporate social responsibility (csr), in an era when everyone from human rights advocacy groups to institutional investors wants companies to engage better with environmental, social, and governance (esg) considerations in business and finance.[footnoteref:3] [3: for more on this topic by the author, see: ‘boards brace for a perfect storm’, the australian, (25 april 2019), pp.30; and corporate social responsibility in the 21st century, (2010) edward elgar, uk.] thirdly, those who argue that a clinic must always be free and reserved for those who cannot afford a lawyer and who do not otherwise qualify for publicly funded legal aid must go on to confront other conditions in maintaining that claim. governmental policy decisions to reduce areas of publicly funded legal aid cannot be the sole arbiter of who is worthy of clinical support. even people of moderate income find it extraordinarily costly when left with no real choice other than to engage with the legal system to try to achieve some kind of justice, often with their families and livelihoods at risk. this reality in no way diminishes the equal need for well-resourced clinics focused upon poverty-related law; it simply extends the definition of unmet, contemporary legal need. nor is the funding of a clinic an irrelevant consideration, because all clinics need resourcing of one kind or another, and their resourcing is hard enough in an era of reduced university and public funding without setting up distinctions based on direct and indirect sources of funding. just as other aspects of a law school’s income-generation and other funding can cross-subsidise a clinical program, so too some parts of a clinical program potentially might cross-subsidise others. for example, in a landmark and future-looking assessment of changes in the legal profession, the law institute of victoria’s then president (katie miller) authored a report that included the following recommendation:[footnoteref:4] [4: miller, k. disruption, innovation and change: the future of the legal profession (report, december 2015) 20.] if you manage or are on the board of a clc, discuss and consider with your board opportunities for using paid services to cross-subsidise your regular services. consult widely (including with current funders); discuss concerns; and, if you decide to proceed, design a service that manages those concerns. fourthly, law firms and other organisations can be suitable partners for clinics of one kind or another. what makes clinical partnership with some arms of the legal profession (e.g. courts/tribunals, governmental departments and agencies, clcs, and ngos, for example) inherently more worthy than other arms of the legal profession (e.g. commercial law firms, commercial bars, and in-house corporate legal departments, for example), at least in clinical and ‘access to justice’ terms? any difference is not readily explainable simply on the grounds of the ‘public-private’ divide, area of legal work, or source of funding support. partnering family law firms in clinics to achieve social justice for families can be less controversial in some clinical quarters than developing clinics with commercial law firms, but many commercial law firms do pro bono work too. so, it is not self-evident that having a clinic for pro bono clients of a law firm is any less worthy a contribution to access to justice than clinics with non-commercial law firms, even if the pro bono work assists the commercial law firm in tangential ways, such as helping its lawyers meet professionally mandated hours of pro bono service to maintain professional accreditation or even helping a law firm to meet pro bono targets that qualify it to be on panels for governmental legal services work. finally, to the extent that clinics provide benefits for students as well as clients, giving the former exposure to the full range of legal services work and organisational contexts is a legitimate objective of cle. it also informs and tests their aptitude for commercial or non-commercial legal careers, if they head towards careers in the legal profession. the client-focused orientations and skills acquired in clinics are transferable to graduate positions even in commercial law firms, regardless of the context in which they were acquired.[footnoteref:5] [5: the author acknowledges instructive discussions on this point with the monash university faculty of law’s external professional advisory committee.] so, students who work in family law assistance clinics, human rights clinics, and tenancy dispute clinics, for example, develop interpersonal, team-based, administrative, and other skills that are equally valuable to early careers in commercial law firms. conversely, even if a student is destined for legal or non-legal careers in community activism, ngos, and public advocacy, experience from the inside of a commercial law firm (and acting for multinational corporations, financial institutions, and governmental regulators) can be invaluable when representing clients or organisations on the other side of the fence. disruptive technologies, digital literacy, artificial intelligence (ai), and cle a second major challenge to conventional cle stems from disruptive technologies. university legal education generally and cle in particular are as susceptible to disruption as other parts of the tertiary education and legal services industries. few law schools today can remain immune from considering legal technological advances in terms of areas of taught law in the curriculum (eg innovation law and privacy, smart contracts, blockchain etc), modes of teaching delivery (eg online resources supplementing ‘flipped’ classrooms), co-curricular student experiences (eg student involvement in legal technology hackathons), and emerging career possibilities for students (eg legal technologists, ai-analysts etc). cle is not immune from that disruptive influence, in terms of the subject matter of clinics (eg clinics about start-ups), the tools and analytics available to service clinical clients (e.g. online legal assistance and ai-assisted research on client-related matters), the modes by which clinical students might interact with a range of participants (e.g. transnational clinics involving two clinical groups from two law schools in online collaboration), and familiarity with technological resources used by organisations partnering with law schools in delivering clinics (e.g. legal research and documentary analysis technologies). the classic clinical model is under pressure. it relies heavily upon point-in-time physical visits by clients to meet an available community lawyer in a face-to-face meeting in a law school-supported clinic or other clc to identify what (if any) legal problem they face and what (if any) free expert legal assistance might be provided for them there or on referral elsewhere. digital and technological disruption of that model is already happening, and many law schools and their clinicians and students are adapting accordingly.[footnoteref:6] virtual clinics, clinical apps and bots, smart online clinical ‘triage’ assessments, client and clc match-making systems, and other technological innovations are already here, with more on the horizon. [6: eg a. thanaraj and m. sales, ‘lawyering in a digital age: a practice report introducing the virtual law clinic at cumbria’ (2015) 22 international journal of clinical legal education [ci].] changes in all legal workplaces (including courts and law schools) are being influenced by a key number of overlapping drivers in the fourth industrial era (i.e. from industrialisation and electrification to digitalisation and interconnectivity [i.e/ ‘the internet of things’]). the volume and impact of change is compounded exponentially where ai, other legal technology, globalisation, and other disruptors all converge, as illustrated in the following diagram: judges and other lawyers in practice have already coped in recent decades with transitions from physical evidence to dna-tested evidence, physical courtroom appearance to video-linked courtroom proceedings, fax to email, print-based research to online and even computer-assisted research, and manual dictation to digital voice recognition. it is not too great a distance for them to adapt to ongoing transitions from individualised personal profiling to mass facial recognition technology, delayed print-based court transcripts to instantaneous computer-assisted transcription, hand-written judges’ notebooks to e-handbooks and other digital courtroom tools and software, wholly judge-directed physical case management to online case management, physical jury evidence to jury technology-enabled evidence, and paper-based courtrooms to paperless courtrooms and virtual courts. to be sure, those innovations might not test fully the moral, empathic, creative, or adjudicative capacities that some (perhaps many) doubt that ai can reach, at least anytime soon.[footnoteref:7] however, there are dangers in anthropomorphising ai and assuming that such human qualities completely define lawyerly professionalism.[footnoteref:8] on this crucial point, two much-cited legal futurologists sound a sobering warning for academics, judges, and other legal practitioners alike; on a prudential view, this means that the jury is still out on the extent to which ai will replace the ‘decomposed’ segments of what academics, judges, and other lawyers actually do:[footnoteref:9] [7: susskind, r. & susskind, d. ‘robots v experts: are any human professions safe from automation?’, the guardian (online), (uploaded 28 march 2017).] [8: ibid, (2017).] [9: ibid, (2017).] the main themes of our book, the future of the professions, can be put simply: machines are becoming increasingly capable and so are taking on more and more tasks. … it is indeed hard to imagine a machine thinking with the clarity of a judge, empathising in the manner of a psychoanalyst, extracting a molar with the dexterity of a dental surgeon, or taking a view on the ethics of a tax-avoidance scheme. … but there is a danger of being excessively human-centric. in contemplating the potential of future machines to outperform professionals, what really matters is not how the systems operate but whether, in terms of the outcome, the end product is superior. in other words, whether or not machines will replace human professionals is not down to the capacity of systems to perform tasks as people do. it is whether systems can out-perform human beings. and in many fields, they already can. in other fora, the susskinds reinforce the point that expert lawyers (including judges and academics) cannot be too complacent about how ai and technology might affect, change, or rival at least some of what they currently do.[footnoteref:10] while accepting that judicial handling of “complex issues of principle, policy, and morality is well beyond the capabilities of current and foreseeable computer systems”, richard susskind argues that there is “no compelling argument against analysing and dividing judicial work into separate parts and, where appropriate, finding alternative and more efficient ways of undertaking some of these tasks”.[footnoteref:11] [10: approaches to numerically-based ethics assessment regimes for lawyers are already being canvassed; see, for example: evans, a. assessing lawyers’ ethics, (2011). cambridge university press ] [11: susskind, r. ‘tomorrow’s lawyers: a virtual judiciary – extract’, the guardian online, (uploaded 29 january 2013).] in “decomposing” judicial work in much the same way as he decomposes modern law firm practice, he recommends greater use by judges of standardisation tools, document assembly technology, computerised research, e-filing and e-submissions, computer-assisted transcription and real-time judicial annotation, document display systems, electronic and visual evidence presentation, online dispute resolution, and “virtual” courts.[footnoteref:12] the correlative disruption of traditional clinical models and the decomposition of clinical work into its various components, with a re-imagined alignment between clinics, enabling technology, and access to justice are no longer distant points on the horizon. [12: ibid, (2013). ] the future of ai, technology, and law is only one aspect of the future of the legal profession explored in recent reports by legal industry peak bodies and publishers.[footnoteref:13] the relationship between ai and robotics, law, and workplaces is now a subject of study by the international bar association (iba).[footnoteref:14] the australian human rights commission is also focused upon the human rights implications of ai and other new technologies.[footnoteref:15] [13: disruption, innovation and change: the future of the legal profession, law institute of victoria, (2015); flip: the future of law and innovation in the profession, law society of new south wales, (2017); and lexisnexis, lawyers. "robots." conversations around the future of the legal industry 3 (2017).] [14: iba global employment institute artificial intelligence and robotics and their impact on the workplace, (2017).] [15: human rights and technology issues paper, (2018), ahrc. ] regulating ai forms another strand of the classic ‘is-ought’ dilemma: just because we can do something does not automatically mean that we should do it. hence, we need adequate socio-ethical, legal, and regulatory frameworks for ai and technology. many early attempts at developing frames of reference for this work focus upon developing broad principles of practice[footnoteref:16] and other fundamental frames of reference.[footnoteref:17] [16: boden, m. ‘principles of robotics: regulating robots in the real world’ (2017) 29 connection science 124; and statement on artificial intelligence, robotics and ‘autonomous’ systems, european group on ethics in science and new technologies, european commission, (2018). ] [17: leenes, r. et al., ‘regulatory challenges of robotics: some guidelines for addressing legal and ethical issues’ (2017) 9 law, innovation and technology 1.] much of the literature is concerned with the ‘nightmare’ of the world that ai might unleash in terms of human liability and irrelevance, as distinct from the ‘noble dream’ of its potential and opportunities for human benefit.[footnoteref:18] groups of multi-disciplinary scholars are combining to explore accountability in the design and use of ai in legal and regulatory contexts involving compliance and responsibility,[footnoteref:19] with particular reference to regulating data-creation and data flows that pass through multiple hands in numerous application contexts.[footnoteref:20] [18: buranyi, s. ‘rise of the racist robots – how ai is learning all our worst impulses’; the guardian (online), (uploaded 8 august 2017); sodhani, s. ‘a summary of concrete problems in ai safety’, future of life institute, (uploaded 26 june 2018); ‘franken-algorithms: the deadly consequences of unpredictable code’, the guardian online, (uploaded 1 september 2018). the ‘nightmare’ and ‘noble’ dream’ contrast uses hla hart’s famous description of two competing visions about the nature of law and adjudication.] [19: eyers, d. et al., ‘towards accountable systems’. (2018). report from dagstuhl seminar 18181.] [20: pasquier, t. et al., ‘data provenance to audit compliance with privacy policy in the internet of things’ (2018) 22 pers ubiquit comput 333.] in the legal world, the growing literature makes sobering reading for law-makers, regulators, courts, legal practitioners, and legal academics. some themes are as follows. all law is simply data, at least in terms of ai analytics. all such data can be analysed – everything from the words in judgments, legislation, and contracts to commentaries, texts, and social media mentions. beyond law itself, human beings regularly create or consent to the creation of data about themselves that is captured, replicated, and analysed digitally, often being generated initially in commercial dealings. in analysing all such data, non-human intelligence can potentially reach levels, identify patterns, run simulations, model alternative scenarios, and do a vast range of other things faster, longer, more accurately, more completely, more connectively, and more currently than individual human intelligence can. when the use of non-human intelligence is added to endless data flows and passages through various systems in their application, the usual rules of privacy and other rights, strict and vicarious liability, causation and remoteness of damage, ownership of responsibility, and broader implications for access to justice for all are tested at or beyond their limits. at that point, for example, the usual and borderless means of creating informed consent for legal purposes – ie clicking on ‘i agree’ to conditions that are largely unread as a means to access the next clickable webpage item – are also exposed as being inadequate, as are our conventional socio-ethical, legal, and regulatory frames of reference in dealing with them. sooner or later, all courts and lawyers will have to deal with these implications as they arise in matters before them, whatever else ai might do in changing the systems and processes by which courts and lawyers conduct legal business. the issues sketched briefly above are new frontiers and battlegrounds for access to justice. what does all of this mean for cle in law schools, clcs, and associated clinical partners? first, digital disruption of cle is already here. at the 2018 global legal hackathon, for example, a team from monash university that included law students with clinical experience developed a winning proposal of how technology might be used to address a legal need, centred upon online communication and analytical tools to overcome the problem of too many worthy clc clients, too few available lawyers, and unduly onerous transaction costs of a ‘triage’ model based upon solely upon in-person appointments between lawyers and clients up front. the team – named anikalegal – ultimately came second in the world in their category.[footnoteref:21] [21: anikalegal later won an industry start-up award and a governmental financial grant. a second monash-affiliated team from the 2019 global legal hackathon (cynapse) also reached the global final of the competition in new york. the imperative to use technology in designing and delivering a solution to a legal problem creates opportunities to address social injustices at scale. ] secondly, both law firm involvement in clinics and the range of problems for clients of clinics are apt to expose students to an emerging need for digital literacy in clinical work. some examples of new areas of societal need in delivering access to justice with which clinical supervisors and students increasingly must become familiar include: (i) digital fraud and theft of personal identities; (ii) online dispute resolution; (iii) problems emerging from smart contracts; (iv) victims of robo-trading and market-affecting algorithms; (v) victims of computer-generated letters from official agencies to householders; (vi) discriminatory use of facial recognition technology; (vii) familiarity with jury technology in criminal trials; (viii) unpacking inherent human biases in sentencing and other algorithms that result in miscarriages of justice; (ix) ai-assisted analysis of successful legal and constitutional arguments across jurisdictions in death penalty cases; and (xi) web-based engagement with royal commissions and public inquiries seeking information and case studies from victims. indeed, at least some staff and students will need to become involved clinically in public advocacy and research-based submissions about law reform that protects individual privacy and other human rights in the digital age. thirdly, the nature and delivery of clinics has potential for evolution in the digital age. virtual clinics already offer an established example of clinics using technology. the monash law moot court, for example, is a multi-million-dollar, technologically enabled, and multi-functional facility that we use for clinical purposes too, with potential to bring together academics, clinicians, students, and key experts and stakeholders for dialogue and collaboration in real time, regardless of their location in the world. given what cle offers to our understanding of ethics and professionalism in lawyering, digital literacy for lawyers also touches upon broader questions of how lawyers do and should conduct lawyering through technology, with opportunities to expose clinicians and students to such questions and experiences too.[footnoteref:22] [22: see, for example, thanaraj, a. & sales, m. ‘lawyering in a digital age: a practice report introducing the virtual law clinic at cumbria’ (2015) 22 international journal of clinical legal education [ci].] finally, suitable ethical and legal frameworks are yet to be developed for dealing systematically and globally with the issues of fairness and justice implicated in advances in legal technology and ai-assisted analysis. these fundamental questions are suitable areas of focus in a clinical context about the future of access to justice, particularly to ensure that its ideals are secured and not compromised by advances in systems and processes through technology. indeed, given the capacity for ai-assisted analysis to replicate in-built human biases and errors at mass scale (e.g. discriminatory racial profiling in criminal investigations and sentencing), if not identified and corrected at an appropriate stage in the decision-making chain, new issues of access to justice are also generated by the digital age. toby walsh’s 2062: the world that ai made quotes a 2017 ai conference comment that is a good touchstone as we look ahead to what ai will means for all arms of the legal profession: ‘anyone making confident predictions about anything having to do with the future of artificial intelligence is either kidding you or kidding themselves’.[footnoteref:23] despite that sobering warning against ai predictions, we know enough now to agree on the following high-level propositions with some degree of confidence: [23: mcafee, a. quoted in walsh, t. 2062: the world that ai made (2018). la trobe university press, pp.34.] 1. digital enabling and disruption is real and will become the new normal in time, with all arms of the legal profession being fundamentally challenged and changed by it; 2. the challenges of ai require appropriate socio-ethical, legal, and regulatory frameworks;[footnoteref:24] [24: see, for example, tasioulas, j. ‘first steps towards an ethics of robots and artificial intelligence’, (paper, 2018). available at ssrn: https://ssrn.com/abstract=3172840 or http://dx.doi.org/10.2139/ssrn.3172840.] 3. in developing those frameworks, we need technologists and ai-specialists to know a little bit more about law and ethics, and we need lawyers (including judges) and ethicists to know a little bit more about technology and ai; 4. all legal workplaces need to equip themselves and their staff with digital, technological, and ai literacy as part of their organisational dna, and so all organisational leaders across all arms of the profession have an individual and collective stake in cultivating this new form of literacy as a core workplace skill; 5. given that much legal work can now be automated or computerised, what law graduates need to be work-ready is different from what sufficed in the recent past; 6. given that computer algorithms can replicate erroneous human assumptions and biases at scale, most lawyers will need to know enough about ai to assess and translate its inputs and outputs in using ai-assisted analytics, and some lawyers and service provides to lawyers (eg legal technologists) will need to know coding as a core skill; and 7. access to justice and its instruments – from courts, barristers’ chambers, and law firms, to publicly funded legal aid, clcs, and others in the social services sector are not immune from being challenged and disrupted, on one hand, and either enabled or harmed, on the other, by ai, technology, and the digital revolution. in short, everyone in the cle business will eventually need some degree of digital and/or ai literacy too. this is because students will be familiar with it, graduates will work in organisations where they need it, clinical partnering organisations will use it in client-related work to which clinical students are exposed, the needs of access to justice for clients will demand it, and advocacy in service to contemporary democracy will be left behind without it. law schools and the ‘access to justice’ community in the new democratic project the disruptions for cle programs and providers from the forces of globalisation and digitalisation have a flip side. the promise of borderless mass connectivity also creates new opportunities for partnering and networking for law schools as one arm of their local and global legal professions, in pursuit of the realisation of access to justice under the rule of law. the next section of this part of the article repositions cle programs in law schools within a broader and transnational democratic project. in that sense, disruptive challenges for cle programs and clinicians ae driven by the combined forces of digitalisation, globalisation, and democratisation. what are the roles of cle-supportive law schools and clcs as actors in evolving accounts of democracy in an age of globalised and digitalised interconnectivity? on a broader level, law schools and their members join with other governmental and non-governmental parties as part of a network of oversight and accountability for the use and abuse of political and legal power in the continuously evolving democratic system. as we move from focusing solely upon the formal institutions of democratic government (such as free elections and law-making by majority vote in legislatures) and curbs on their abuse (such as institutional protection of fundamental human rights, including through judicial review) as exclusively defining the features (as distinct from the formalities) of democracy, there is a new focus upon multi-order and multi-constituency accountability for all exercises of public power over others under 21st century conditions of what is variously called ‘participatory’, ‘deliberative’, and ‘monitory’ democracy.[footnoteref:25] [25: keane, j. the life and death of democracy (2009). w w norton and company, new york; and gutman, a.& thompson, d. why deliberative democracy? (2004). princeton university press, princeton.] under this re-imagining of democracy and its participants and their interactions, the organs and actors of government are exposed to enhanced standards of public ‘contestability’, ‘deliberation’, and ‘justification’ in their official decisions and reasons for action, including courts, tribunals, legislative committees, public sector agencies, and others with whom clcs and law school-supported clinics engage on behalf of clients and in other forms of advocacy in the pursuit of improved access to justice.[footnoteref:26] conversely, policy or funding constraints upon the capacity of non-governmental actors to exercise oversight on the use and abuse of official power also affects the system of checks and balances in this evolving form of democratic engagement. if equal access to justice under the rule of law involves action and advocacy to ensure that the non-value-neutral impact of leasing, taxation, and other laws upon poor, vulnerable, and disadvantaged people is addressed, for example, then enabling non-government parties to represent and give a voice to such people in policy-making, law-making, and law reform processes is just as valid an object of clinical work, law school endeavours, and multi-dimensional contemporary democracy as any other. [26: ibid, (2004). ] under such a conception of democracy, governments might still remain at the centre of multi-stakeholder networks, standard-setting initiatives, and essential law-making and policy-making, but with other participants meaningfully involved systemically as well. for example, various arms of the legal profession and other community stakeholders can become engaged in the public goods of law-making, the administration of justice, access to justice, and the rule of law. the legal academy does so by various means, some of which leverage or flow from others, such as: a) submissions to public and parliamentary inquiries; b) public advocacy and thought leadership on social justice issues; c) evidence-based research that informs public policy development and law reform; d) contracted research and consultancies for parliamentary and other governmental bodies; e) expertise-based membership of ministerial and other advisory committees; f) appointment as commissioners in regulatory and law reform agencies; g) authoring of amicus curiae briefs, community advocacy programs, and targeted (or strategic) public interest litigation, through research centres, student clinics, and partner clcs; h) partners with other arms of the legal profession, the institutions of government, and the private and community sectors in collaborative research grant projects on social justice; i) multi-stakeholder enterprises across geographical and sectoral boundaries; j) being an independent knowledge-broker, relationship-builder, expertise-sharer, and resource-provider with governmental, professional, and community organisations tackling social justice problems; and k) collaborative endeavours that serve public goods as well as institutional and societal needs, such as law school involvement in cle through clcs and joint enterprises (eg the monash law faculty’s involvement in vicbar’s pro bono assistance to self-represented litigants in appeals before the victorian court of appeal). in these ways and others, law schools are active participants in the systems for securing both democracy and access to justice, in the broader senses in which they are used in this article. in other words, there are increasingly important connections to be drawn between democracy, the rule of law, and access to justice, on one hand, and clcs, cle, and law schools, on the other. of course, the institutional capacity (from a decanal or other senior management perspective) and personal capacity (from an individual academic’s or clinical group’s perspective) to pursue such activities as part of broader democratic engagement must again be exercised within the usual strategic and operational parameters of the business of running law schools and universities (and they are businesses, on at least some levels). as with other option explored in each pat of this article, questions of choice and filters for making those choices inevitably arise. the point worth reiterating is that while some of those choices might involve trade-offs in time, focus, and effort between the various options identified, not all of them do. in most cases, there are smart ways to create alignment between institutional needs and individual preferences, and the trick lies in identifying and navigating such journeys. in doing so, individual academics and clinical groups can leverage most (if not all) of the items listed to individual and institutional advantage. in an anglo-australian tertiary sector regulatory landscape in which research excellence is increasingly measured and ranked (although not necessarily funded) in terms of research quality, impact, and engagement, research-based advocacy in the form of submissions to public inquiries, legislative committees, and law reform agencies by reference to evidence-based work and research with ‘access to justice’ constituencies have a place in both institutional concerns and individual career development, even if such publications do not necessarily count in terms of ‘high quality’ publications in ‘high quality’ publication outlets for the purpose of institutional research activity and performance standards. in other words, the question is how they count, not whether they count, and those variables change as institutional environments change. at the same time, academics must also confront the reality that they cannot necessarily make such things count for all purposes institutionally. institutional priorities and individual choices can align but they are not always co-extensive. at the same time, nothing presented here from a decanal standpoint about institutional leverage and alignment of individual and group choices for strategic advantage and smart career navigation in clinical domains should be mistaken as a conservative call to conform rather than challenge the institutional status quo. the point simply is that the two are not mutually incompatible across the board, and that more clinicians and clinical groups could do more to take advantage of the opportunities that such leverage and alignment present in institutional contexts. in those and other ways, values are implicated in clinical commitment to speaking truth to power, facilitating access to justice, remedying socio-economic justice (reconceived broadly, as advocated in this article), and fully realising the rule of law. are there also ways in which lawyerly responsibility across all arms of the legal profession as participants in systems governed by the rule generates ancillary responsibility towards access to justice for the poorest and most vulnerable people in society? in a recent international bar association (iba) forum, i advanced twin and inter-related claims that the rule of law is necessarily diminished (or imperfectly realised) in any place where poverty remains and that, as a result, true lawyerly commitment to the rule of law means that all lawyers have individual and collective responsibility (on some level and in some form) to join the legal war against poverty.[footnoteref:27] these two claims might be surprising and even confronting for many judges and other lawyers. they have direct implications for lawyers across the public, private, and community sectors in their commitment to the rule of law through engagement with law schools and other partners in combatting poverty by enhancing access to justice, especially at the intersection of the societal responsibility of legal organisations, cles and clcs, and community legal assistance for those people who are impoverished or otherwise in need. [27: horrigan, b. ‘the war against poverty is not optional for lawyers’, (2015) accessible via the iba website for the poverty, empowerment, and rule of law working group, available at this link: http://www.ibanet.org/article/detail.aspx?articleuid=f9ce20d3-15f9-417e-a9d8-59198ea304b2. ] access to justice is a fundamental element of the rule of law, on any view of the rule of law. in this incarnation, access to justice is a broad concept, extending beyond free expert assistance in litigation for anyone who needs it, to embrace access to advocacy and other levers of power in influencing laws that adversely impact upon poor people. on this view, the rule of law falls short of the ideal at best and is fatally compromised at worst whenever and wherever meaningful access to justice is less than optimal. the conditions of poverty undermine all essential elements of the rule of law and consequently limit the access to justice and engagement of poor people in the legal and political systems. the rule of law is therefore diminished and imperfectly realised in any jurisdiction where (and to the extent that) poverty is tolerated. in that sense, lawyerly fidelity to the rule of law is integrally implicated and itself limited by any acceptance of poverty as an unpreventable reality in the localities where lawyers conduct business and wield influence. the priority given to eradicating poverty and otherwise achieving social justice in various cross-sectoral goals within the global sustainable development goals (sdgs) further reinforces exploration of the connection between poverty, access to justice, and the rule of law. once the reality of global climate change and its impact upon accomplishment of many or all sdgs are brought into focus, there is no better time to integrate law schools’ traditional and cle programs to greater effect in securing access to justice locally and globally. in that sense, the responsibility of lawyers towards the legal conditions of poor people and flowing from true fidelity to the rule of law therefore encompasses lawyerly responsibility towards access to justice as part of the rule of law. is that really such an outrageous claim, in an era of modern slavery reporting requirements, ‘social licence to operate’ requirements in corporate governance standards, ‘social’ dimensions of environmental, social, and governance (esg) considerations in investment decision-making, un and iba guidelines for lawyers on business and human rights, and sustainable development goals (sdgs) that prioritise both eradication of poverty and access to justice? conclusion in light of the analysis above, all cle programs are nested in a series of co-extensive and socially significant identities and functions. they are located in law schools, which operate in broader university and professional environments, or in clcs, which (along with law schools) also have roles as part of an access to justice constituency, as actors within contemporary democracy under the rule of law, and as participants in a global legal profession owing fidelity to full realisation of the rule of law. their success in the future turns, at least in part, on how well they respond and adapt to disruption through technology, globalisation, and democratisation. successfully pitching, designing, resourcing, and implementing something like monash law’s clinical guarantee can only be done with due sensitivity towards all of those dynamics. in that important sense, the macro-level considerations canvassed in the second part of this article, about how enhanced clinical programs relate to their external environments, dovetail with the micro-level considerations canvassed in the first part of this article, about how designing and delivering enhanced clinical programs navigates internal institutional environments for law schools and their clinicians. making cle pat of the dna of a law school increasingly requires nothing less. 224 271 practical nous as the aim of legal education? graham ferris* nick johnson** there has been an implicit assumption that legal education should be about exposition and evaluation, and should reward facility in exposition and theoretical awareness� this theoretically based assumption generates a theory-induced blindness� specifically, it obscures the dynamic relationship between law and legal practice, despite it being a familiar aspect of the world� the lawyer as rule entrepreneur is lost sight of� one alternative assumption about legal education would be that law is a game like activity; and legal education should be directed towards promoting those qualities that would enhance performance in this game� in this approach to legal education it would be practical nous that would be sought and rewarded, and such qualities as facility in exposition and theoretical awareness would receive recognition merely as qualities that can be ancillary to and elements of practical nous� doctrinal legal education naturally pulls towards the first theory, and clinical legal education naturally pulls towards the second� we argue for a clearer awareness of the role of rule entrepreneurship in clinical programmes and in legal education generally� theories: how they illuminate and how they obscure daniel kahneman, in his popular summary of his work in behavioural psychology, refers to “theory-induced blindness”: an idea he calls upon to explain why even quite obvious (in retrospect) errors in science may have significant longevity�1 all models of the world are simplifications, ignoring some features of the world in order to focus attention upon other features common across different specific activities�2 this focus enables analysts to penetrate surface difference and understand at a common or deeper level, it enables us to learn from the experience of others and from the past: to see how tulip mania demonstrated many of the same features as the market in sub-prime mortgage derivatives�3 many successful scientific theories have what ian glynn refers to as “elegance” a quality that combines parsimony with a feeling of axiomatic certitude: * graham ferris, reader, college of business,law and social sciences, nottingham law school, nottingham trent university� ** nicholas johnson, principal lecturer, college of business law and social sciences, nottingham law school, nottingham trent university� 1 daniel kahneman, thinking, fast and slow (2011) allen lane: london at 277� 2 thomas schelling, micromotives and macrobehaviour (2006) norton: new york, ny at 83-133� 3 charles kindleburger and robert aliber, manias, panics and crashes (2005) palgrave macmillan: houndmills 272 international journal of clinical legal education issue 19 both uncluttered and convincing�4 an elegant theoretical model that can be usefully deployed is a powerful and attractive educational tool but is one that can induce a blindness that seriously distorts educational programmes� we feel contemporary doctrinal legal education suffers from such distortion, specifically that it is blind to the role of lawyers in practice in changing rules� this article attempts to articulate an approach to law and legal education that is centred not in exposition, which rewards generality and logical consistency, but in practice, that rewards alertness to potential distinctions and goal directed efficacy� we use the old term of greek thought “nous” to try and put this approach into a historical and theoretical context� the problem of reason in practice was explored by aristotle, and for him nous was an essential part of his approach to “phronesis” or practical wisdom – how to act well and rationally, rather than how to reason well and rationally�5 we felt “nous” both connected to the aristotelian tradition and maintained some contemporary resonance, “nous” is used in modern english to mean (according to the new shorter oxford english dictionary): “common sense, practical intelligence, gumption”� we want to move the inculcation of nous, and support of the potential to develop nous, into the centre of legal education�6 at present we feel legal education is too focused upon the “know that” or exposition of law, and too little concerned with practical nous or creative use of the law�7 nous is concerned with how one achieves one’s purposes using the resources that are available; as such it is concerned with purposes and effectiveness in action� once the importance and independence of nous as an educational end is realised the role of clinical legal education is cast in a new light� the development of skills, basic and advanced, can no longer be seen as the purpose of experiential learning� this aspect becomes a means towards a more ambitious end� facilitating the establishment of nous in the student, and preparation for a lifelong 4 ian glynn, elegance in science (2010) oxford university press: oxford� 5 aristotle, the nicomachean ethics (london: penguin books, 2004) tr� j�a�k� thomson� rosalind hursthouse, practical wisdom: a mundane account (2006) 106 proceedings of the aristotelian society 285-309� hursthouse’s is an illuminating commentary: “… aristotle says about practical nous in book vi, and, in stressing the point that practical nous is akin to perceptual capacity rather than the knowledge that some general principles hold …” at 287; and “… this entirely mundane, non-moral sort of ‘technical’ expertise is essential to practical wisdom�” at 305� 6 of all qualities nous must be one that is a lifelong learning project, as was recognised by aristotle� peter jarvis, learning to be an expert: competence development and expertise, in teaching, learning and education in late modernity (2012) routledge: abingdon at p� 91 refers to: “the old debates about knowledge and skill” and calls for a focus upon “what it really means for whole people to learn” in relation to vocational education, and he goes on to cite j� delors learning: the treasure within (1996) unesco: paris “in which there are four pillars of learning – to be, to do, to know and to live together”� nous is concerned with all four pillars, with “to do” being centre stage� 7 in 1930 karl llewellyn, the bramble bush (1996) oceana publications, inc�: new york, ny at p� 116: “the hardest job of the first year is to lop off your common sense, knock your ethics into temporary anesthesia�” there is reason to think such an approach persists into modern practice: “we certainly discovered that the same process is very much at work in today’s law schools� faculty, like students, vary considerably as to how worrisome they find this ‘lopping’ and ‘knocking,’ this temporary moral lobotomy� however, virtually everyone with whom we spoke was aware that this process was a major facet of the case-dialogue pedagogy of the first year�” william m, sullivan, anne colby, judith welch wegner, lloyd bond, lee s� shulman educating lawyers: preparation for the profession of law (2007) jossey-bass: san francisco, ca at loc� 1116� common sense combined with ethical awareness, comes close to being a useable if partial definition of nous� of course llewellyn was not under the illusion that the educational aim of inculcating “thinking like a lawyer” in the first year sufficed for a complete, or even an acceptable legal education: “for a mere legal machine is a social danger� indeed, a mere legal machine is not even a good lawyer� it lacks insight and judgment, it lacks the power to draw into hunching that body of intangibles that lie in social experience�” despite these misgivings he felt the process a necessary one after which: “we shall then duly endeavour to develop will, we hope, regain the homo�” ibid� at 116-117� 273 practical nous as the aim of legal education? cultivation of nous in practice (whether that practice be legal or not, as nous is useful in any life), become ultimate purposes that should inform clinical legal education� legal education: modernity and the rejection of aristotle when one realises the deep links between nous and legal practice then at first blush it is hard to understand why legal education should have neglected practical nous and embraced theoretical elaboration�8 however it is not only legal education that has shown this prejudice against practical wisdom:9 “the idea that all the practical arts owe a debt to the skills aristotle calls phronesis was not especially welcome to rational-minded thinkers in the modern period� although, in its latinized form prudence, this term keeps a place in words like jurisprudence, its broader implications are largely forgotten�” the problem was bound up with the self-image of modernity (c� 1600 to present) and the philosophical quest for certainty� the reputation of aristotle’s works on practical wisdom was contaminated by the rejection of his physics:10 “both good and evil consequences resulted when philosophy turned its back on aristotle … aristotle’s physics was hopelessly erroneous, and had been shown to be so … but for philosophy in the narrow sense … there were losses as well as gains resulting from the abandonment of aristotle�” the modern philosopher would find certainty by deduction from indubitable first principles, and no longer rely upon the authority of tradition�11 the greek model was euclid rather than aristotle� at the birth of university legal education in the common law blackstone had allowed a traditional and pious, if vague and unsystematic, natural law spirit to inform his commentaries 8 of course the neglect has not been total� we are not the first to sense incongruence between the claims of theory and the evidence of practice� karl llewellyn and e� adamson hoebel, the cheyenne way: conflict and case law in primitive jurisprudence (1941) university of oklahoma: norman, ok at p� 42: “when seen thus [i�e� when law is seen as working tools for the solution of problems that arise outside of law], each legal concept becomes a candle to illumine the working of society� it became a concept because some type of problem has recurred often enough, has required to be wrestled with often enough, to be not only felt but seen, as a type of problem� every legal concept represents then in first instance an effort at diagnosis of a recurrent social trouble of some particular kind� … comparative study is to this extent a study in comparative diagnosis, if really similar problems have occurred in different cultures�” here the implication is clearly that practice generates law, that the solution of recurrent problems gives rise to the principles, and rules, and processes of law� elsewhere llewellyn described law as a craft activity, again to give emphasis to the practical nature of the subject� however, his attempt to describe and analyse the good and excellent, the ideal, became difficult to distinguish from mere subjective preference or taste� despite his earnest attempts to demonstrate the grand style of judgment through examples the distinguishing features remained elusive, and no clear paradigm could be discerned, see: karl llewellyn, the common law tradition: deciding appeals (1960) little, brown: boston� 9 steven toulmin, return to reason (2003) harvard university press: cambridge, mass loc 1525-26 10 anthony kenny, the rise of modern philosophy (2006) clarendon press: oxford at xii-xiii� 11 rene descartes is “often considered the father of modern philosophy” kenny, ibid� at 33� 274 international journal of clinical legal education issue 19 on the laws of england,12 but it was the irritated and contemptuous reaction to his confused reflections by jeremy bentham that would dominate the jurisprudence and educational practice of the nineteenth and twentieth centuries� legal education in the common law world is built upon an elegant and powerful model that reflects a distinction made over two centuries ago by bentham between the expositor and the censor of law�13 “to the province of the expositor it belongs to explain to us what, as he supposes, the law is: to that of the censor, to observe to us what he thinks it ought to be�” this basic distinction between the two roles, and the dependence of the second upon the first, has been defended and re-asserted expressly on many occasions�14 however, it is the relationships between the theoretical expositor and the professional lawyer and legal education that concern us here� essentially, the expert knowledge and skills that underpin the claim of professional status are often equated with the role of the expositor� the lawyer does not claim any exclusive authority as censor of the law; such matters are in the realm of policy and politics� however, the lawyer does claim expertise in knowledge of what the law demands and how the legal system operates� the realm of exposition is the particular subject matter of legal studies, and as exposition is logically prior to the censoring of law, the sole remaining issue is how much policy, or politics, or ethics, or social science, or other sources of evaluative standards, should be included in legal education� theory and practice: “the question is,” said humpty dumpty, “which is to be master — that’s all.” one effect of this theoretical approach to law is that is lends itself to an associated set of beliefs about the relationship between theory and practice� in short it seems obvious that theory, the principles and rules of legal doctrine, and the principles and systems of procedure, are the starting point� the practitioner will then derive more specific guidance by application of the general to the specific circumstances of the case or the client� legal science mirrors the methodology of deduction of particulars from principles of modern philosophy� doctrine is prior and governing; clinical action and education is subsequent and governed� stephen toulmin suggests a very different relationship between theory and practice:15 12 available at: http://avalon�law�yale�edu/subject_menus/blackstone�asp last accessed 27 may 2013� legal education in the common law had taken place in the inns of court for centuries, and university education in the civil (roman) law had taken place in the universities� however, common law education in the university made a stuttering start in the eighteenth century when blackstone was appointed to the vinerian chair at oxford in 1758� in “of the nature of laws in general” blackstone starts by confounding scientific laws with the laws governing people, then proceeds to confound the laws of god with roman law and the common law: “considering the creator only as a being of infinite power … he is also a being of infinite wisdom, he has laid down only such laws as were founded in those relations of justice, that existed in the nature of things antecedent to any positive precept� these are the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions� such among others are these principles: that we should live honestly, should hurt nobody, and should render to every one it’s due; to which three general precepts justinian has reduced the whole doctrine of law�” the whole section is redolent of a rhetorical flourish rather than a serious attempt to analyse and reflect upon the connections between different contemporary usages of the word and concept “law”� bentham was not given to recognising the propriety of rhetorical flourishes� 13 jeremy bentham, a fragment on government, preface (1998) cambridge university press: cambridge at 7 14 h�l�a� hart, positivism and the separation of law and morals (1958) 71 harv� l� r� 593� 15 steven toulmin, return to reason (2003) harvard university press: cambridge, mass loc� 1762-63� 275 practical nous as the aim of legal education? “theory (so to speak) is not a foundation on which we can safely construct practice; rather, it is a way of bringing our external commitments into line with our experience as practitioners�” this is an aspect of practice, “doing”, being primary� the theory should serve the practice: it enables us to consider what to do; it enables us to plan by predicting what reactions will follow our actions; and it enables us to reflect whether what we did was right or wrong, the best or merely an acceptable solution�16 we dislike being inconsistent in our beliefs, and we dislike our beliefs and action being inconsistent�17 theory helps us identify apparent inconsistencies, and to address them� what it cannot do is teach us how to act effectively, because speculative knowledge, however valuable in itself, cannot substitute for the experiential knowledge that nous requires�18 of course this reversal of our understanding of the relationship between base (necessary) and superstructure (optional) may threaten some academics as it undermines the kudos of the forms of knowledge and reasoning upon which their status depends� the division made by bentham between the expositor of the law and the censor of the law generates theory-induced blindness� specifically, the product of the role of the expositor creates the feeling that the exposition of the law has a given quality� however, the exposition is a construct, and it has been produced for some purpose or other� in bentham’s classic account it was produced to allow an evaluation of the law; it was ancillary to bentham’s desire to censor the law from a utilitarian evaluative standpoint� despite this well known incompleteness inherent in the exposition it still generates a sense of inevitability, a matter of fact quality� it is taken for granted that the freedom of professional lawyers’ movement is defined by the exposition of the substantive law and procedure� however, this is patently not true� legal professionals can, and do, influence 16 the inappropriateness of theoretical, or in legal education doctrinal, impulses for informing practice is brought out by the role of reflective criticism in ethical argument, bernard williams, ethics and the limits of philosophy (2006) routledge: abingdon at 116-117: “the main consequence that this discussion has for ethical argument is that reflective criticism should basically go in a direction opposite to that encouraged by ethical theory� theory looks characteristically for considerations that are very general and have as little distinctive content as possible, because it is trying to systematize and because it wants to represent as many reasons as possible as applications of other reasons� but critical reflection should seek for as much shared understanding as it can find on any issue, and use any ethical material that, in the context of reflective discussion, make some sense and commands some loyalty�” doctrine wants exclusive principles and rules with as few exceptions as possible� practice wants to find common ground, avoid unnecessary conflict, and argue persuasively, which entails arguing in terms of values recognised by the other side� broad and exclusive rules often give no useful guidance for specific situations (one always has to check the exceptions – which in practice are often more copious than the specific circumstances encompassed in the rule) that require inclusive thinking (demonstrating why the other side is applying the wrong exclusive rule risks hardening the interaction around principled differences – the most intractable of mind sets)� 17 cognitive dissonance is the term coined by leon festinger and his co-workers for this psychological discomfort, cognitive dissonance was explored in: leon festinger, stanley schachter, henry w� riecken, elliot aronson, when prophecy fails (2008)pinter & martin ltd: london� 18 ultimately, it may be a question of temperament� some of us seek the one right answer that will enable us to argue with and from certainty: these are the natural theorists, the hedgehogs as the term is used in ronald dworkin, justice for hedgehogs (2011) belknap press: cambridge mass� some of us seek an answer adequate to the problems we face: these are the natural practitioners, who strive to cope, and who sometimes find the time for reflection and development of expertise� the problem is not one peculiar to legal education� in cognitive theoretic terms it is this issue that divides kahneman and gigerenzer: see gerd gigerenzer, bounded and rational in rationality for mortals: how people cope with uncertainty (2008) oxford university press: oxford� in political theory it is the difference between the “monist” and the “pluralist” in the terms coined by isaiah berlin the pursuit of the ideal in the proper study of mankind: an anthology of essays (1998) ed� henry hardy and roger hausheer, fwd� by noel annan, pimlico: london� in jurisprudence it is the difference between “transcendent” and “comparative” theories of justice as these terms are used by amartya sen, the idea of justice (2009) allen lane: london� 276 international journal of clinical legal education issue 19 the substantive and procedural systems of law in which they practice on behalf of client, the public interest, and collective professional self-interest� an entire aspect of legal practice is obscured by theory –induced blindness� this is not to claim the theory inducing the blindness is necessarily false or useless� the theory is true if law, in practice and theory, is concerned with that which is expounded, in other words if exposition can be supported as an independent activity� however, what if law is not like euclid’s geometry: the exploration of the relationship between axioms of universal validity� what if law is more like a game played by us all in the way wittgenstein came to understand language:19 a shared activity that had a meaning derived from the activity? in the game approach to law the key question is not: “how would one describe this?” the key question is: “how does one win?” the subject matter is not exposition of doctrine and procedure but techniques for effective service to client and the public� not: what is law? rather: how can law be used? this placing of law in its context as activity is not a novel insight� in the words of stephen sedley:20 “their21 argument that law is ‘a social process where information is constructed, passed on and mediated through a myriad of ways’ is of more than sociological interest, because it starts to shed light on the myth that the business of law is the ascertainment of truth� it is no such thing: the business of law is winning cases�” the difficulty is to avoid theoretical obfuscation, theory-induced blindness, of legal practice and the use of law in practice, as wittgenstein remarked of language:22 “here we are in enormous danger of wanting to make fine distinctions … the everyday languagegame is to be accepted, and false accounts of it characterised as false��”, or in sedley’s words:23 “… the product of an academic industry … which has built edifices of often baffling elaboration on the work of earlier practice-orientated theorists such as h�l�a� hart�” meaning in law is a search for the “practical sense of words”24 and the purposive nature of the search is a vital and common “tacit presupposition” underlying legal language games�25 however, it is not only the aim of legal activity and education that is altered by this perspective on law as a contextually situated language game� it introduces the possibility of a social cognitive space, neither the subjective (isolated individual of descartes) nor objective (the common-sense 19 ludwig wittgenstein, philosophical investigations (2009) wiley-blackwell: chichester at [7] p� 8: “i shall also call the whole, consisting of language and the activities into which it is woven, a ‘language-game’”; at [23] p 15: “the word ‘language-game’ is used here to emphasize the fact that the speaking of language is part of an activity, or of a form of life�” 20 stephen sedley, declining the brief, in ashes and sparks: essays on law and justice (2011) cambridge university press: cambridge at 156� 21 john morison and philip leith, barrister’s world: and the nature of law (1991) oxford university press: oxford� 22 ludwig wittgenstein, philosophical investigations, part ii [161] at 210� 23 stephen sedly, this beats me , in ashes and sparks: essays on law and justice (2011) cambridge university press: cambridge at 329 24 ibid� 25 wittgenstein, philosophical investigations, part ii [31] at 188: “’but then they make a tacit presupposition�’ then playing our language –game always rests on a tacit presupposition�” 277 practical nous as the aim of legal education? possibility of non-evaluative exposition deployed by bentham; the view from nowhere26) but “subjunctive”�27 the subjunctive point of view is that of the game players� subjunctive worlds are typically built upon repetitive actions or “habits” or rituals, similar to aristotle’s conception of character built upon habits of virtuous (or vicious) action�28 these habits are informed by the belief that beliefs are shared, and they make sense only given assumptions about other people’s understanding (tacit presuppositions)� the subjunctive is ritualistic in nature, rather than based upon sincerity of feeling, and it is a shared practice as much as a shared belief� legal practice has qualities typical of the subjunctive� consider the rules of communication in court, a ritualistic elaboration of discourse norms of turn taking, not talking at the same time as each other, and appearing to listen to the other side� pleading and rules of evidence are legal devices to produce brief, orderly expression that avoids obscurity and ambiguity for the professional participants in the legal language game� legal procedure attempts to limit the communicative actions to those seen as necessary, ruling irrelevant or immaterial much that is of great concern to litigants, and lawyers take part under a professional ethics that requires they do not say what they know to be false�29 the process is game like or ritualistic because it is not concerned with any subjective or inner beliefs of the participants� consider the right of an accused to face his accuser and make his defence on the basis of the evidence produced by the prosecution� it is not necessary for the legal professionals to believe a defendant is innocent in order to give effect to the presumption of innocence� we engage in behaviour that is based upon a “what if” – “what if the defendant is innocent?”30 legal fictions are of course formal exercises in “what if”, and bentham notoriously failed to distinguish legal fiction from legal falsehood and deception�31 the objective exposition brooked no subjunctive reality to be understood from the perspective of the participants and their shared understanding of the process� thus, our shared subjunctive worlds are shared ways of acting as much as shared ways of understanding� 26 a single “objective” viewpoint that is outside of social action is implicit in ayer’s bold assertion in reference to the problem of induction, a�j� ayer, language truth and logic (2001) penguin books: london at p� 35 that: “… it is a fictitious problem, since all genuine problems are at least theoretically capable of being solved�” the possibility of such a viewpoint is of course the subject of the book by thomas nagel, the view from nowhere (1989) oxford university press: oxford� an excellent review of the problem of the possibility of an objective viewpoint is given by simon blackburn, truth (2005) penguin books: london� 27 a�b� seligman and r�p� weller and m�j� puett and b� simon, ritual and its consequences: an essay on the limits of sincerity (2008) oxford university press: oxford� 28 aristotle, the nicomachean ethics (london: penguin books, 2004) tr� j�a�k� thomson� 29 see paul grice, logic and conversation, in studies in the way of words (1989) harvard university press: cambridge, mass at pp� 26-27 for discussion of “conversational implicatures” such as those noted in the text� 30 h� vaihinger, the philosophy of “as if” (2009) martino publishing: mansfield centre, ct, tr� c�k� ogden� 31 jeremy bentham, a fragment on government (1998) cambridge university press: cambridge� 278 international journal of clinical legal education issue 19 the argument: and a few terms defined we argue in this paper that traditional doctrinal legal studies are inextricably bound up with the theory of exposition as a necessary precursor to evaluation� the virtue or excellence they seek is elegance in statement and application of general propositions descriptive of the law� we will call this “facility in exposition”� sometimes legal education also seeks to develop a capacity to evaluate the law by some intelligible and appropriate standard of evaluation, and we will call this capability “theoretical awareness”� however, such expository education involves a blindness to features of the law that are brought into focus by viewing legal process as a shared activity giving rise to a subjunctive understanding� viewing the law as a game allows a powerful and necessary alternative approach to legal education� clinical legal education tends to pull towards an approach to legal education that treats law as a game because it has an experiential orientation� it is based on a belief that what we can learn from doing has a value� legal education founded on a theory of law as a game – law as activity in a rule structured social environment has less concern with exposition, which is ancillary to the educational task� clear exposition will be required, in explaining to a client, or in advocacy� however, excellence in exposition is not the only purpose of the enterprise� theoretical evaluation of the law in general terms, as opposed to evaluation in terms determined by the needs of the client or the public interest being served, is generally only of use for rhetorical purposes� the purpose aimed at by law as a game, is successful service of the client or public interest� we will call the capacity that produces this end “practical nous”� thus, the virtue or excellence that is sought in legal education on this model, the desired outcome in terms of the development of the student, is practical nous and not facility in exposition or theoretical awareness� obviously, the inculcation, development, and assessment of practical nous raise many difficult, and some possibly intractable, problems� however, one area of activity that can go some way towards the nurturing of nous is intervention in the field of rule change� we term “rule entrepreneurs” those legal professionals who engage in litigation, legislative or administrative process, formal consultations, or social activism with a view to bringing about rule changes� rule entrepreneurs may be involved in advancing the same interests as rule acceptors, but they are open to another field of activity� practical nous especially in rule entrepreneurship relies upon an awareness of what might be possible, together with intelligence about what the client or public interest requires, and an ingrained realisation that resources are always limited� deciding where and how to expend resources is the test of practical nous� to do this well requires: sophisticated understanding of the possible outcomes that are desired (the imperatives of the client, or public interest – avoiding assumptions imposed by legal categories and processes); as fully informed as possible awareness of the field of action (the structures of power and influence that operate); and an understanding of what resources are available (financial, legal, political, ideological, moral, psychological, not limited by preconceptions of typically legal action)� the remainder of this article begins at the difficult challenge of delimiting or describing the nature of “demonstrable practical nous” by deploying an example of litigation and legislative action undertaken by a firm of lawyers in the united states of america� no attempt is made 279 practical nous as the aim of legal education? to advance a formal definition of practical nous�32 second, we reflect upon the ordinariness of rule entrepreneurship in legal practice� then we use examples from the practice of clinical legal education to illustrate how legal education can allow students to take part in rule entrepreneurship� hopefully, at this stage we will have established the prima facie desirability and utility of thinking about the development of practical nous as the aim of legal education� in concluding we return to the importance of theory–induced blindness in this area, and consider why clinical legal education may be more naturally supportive of a shift towards making practical nous the aim of legal education, and what this would mean in terms of an integration of clinical and academic emphases within the legal academy� the lawyer successfully using practical nous: same sex marriage in vermont the following account rests upon earlier publications by beth robinson, and scott barclay with anna-maria marshall�33 the activity of susan murray and beth robinson, two partners in the vermont law firm of langrock, sperry and wool, will be our focus in this account� they were two of the three attorneys that filed the claim that was upheld in substance by the vermont supreme court as state v baker�34 the decision of the court was followed by the passage of vermont civil union law, act 91,35 that granted same sex couples the right to enter civil unions that created rights and obligations identical to those created by marriage�36 this law has since been superseded by an act to protect religious freedom and recognise equality in civil marriage passed in 2009� 32 it is a concept if not a word that is deeply familiar� it reflects the nature of “counsel”� we are trying for a concept that has family resemblances rather than strict definitional boundaries� thus, as noted below the concept is congruous with eskridge’s equality practice� eskidge recognises the balancing act between liberal right and communitarian fear, and sees familiarity as the strongest weapon for enhanced tolerance, acceptance and eventually full legal and social recognition� william n� eskridge jr� equality practice: civil unions and the future of gay rights (2002) routledge: new york, ny at xiii: “this is what i call equality practice� equality for lesbians, gay men, bisexuals, and their relationships is a liberal right for which there is no sufficient justification for state denial – but it is not a right that ought to be delivered immediately, if it would unsettle the community� so equality comes on little cat’s feet�” to ignore social norms, or to demand as of right everything that could be demanded as of right, is likely to set off a damaging reaction, so it is better not to do so� it also shares features with kronman’s “lawyer-statesmen” as can be seen in this descriptive account: “possessed of great practical wisdom, devoted to the public good but keenly aware of the limitations of human beings and their political arrangements”; anthony kronman, the lost lawyer: failing ideals of the legal profession (1993) harvard university press: cambridge, mass at 12� what we are trying to capture is not some novel aspect of legal practice, it is familiar but elusive, especially in a legal education context� it is also more general than public interest or cause lawyering� commercial lawyers need, and the best have, practical nous� indeed, there are many examples of rule entrepreneurship from commercial practice, a few aspects of which are noted below� 33 beth robinson, the road to inclusion for same sex couples: the lessons from vermont (2001) 11 seton hall const� l� j� 237; scott barclay and anna-maria marshall, supporting a cause, developing a movement, and consolidating a practice: cause lawyers and sexual orientation litigation in vermont, in the worlds cause lawyers make: structure and agency in legal practice, ed� austin sarat and stuart scheingold, (2005) stanford university press: stanford, ca� see also: william n� eskridge jnr, equality practice: civil unions and the future of gay rights, (2002) routledge: new york, ny at pp� 43-82� 34 10 vt� l� wk� 363 (vt� december 20, 1999)� the third was mary bonauto of gay & lesbian advocates & defenders� the text of the brief is available in (1999) 5 mich j gender & l 409� 35 vt� pub� act 91, 2000 session� 36 “partners to a civil union shall have all the same benefits, protections and responsibilities under law, whether they derive from statute, administrative or court rule, policy, common law, or any other source of civil law, as are granted to spouses in a marriage�” 280 international journal of clinical legal education issue 19 the account below focuses upon the period between 1995 and 2000� the involvement of murray and robinson in campaigning for same sex marriage developed from their client base and earlier public interest work involving gay and lesbian couples� in 1989 murray had offered the firm’s aid to a smaller firm acting in a case concerned with the guardianship of a child whose biological mother had been killed in an accident� her partner, who had been co-parenting the child since his birth, was trying to establish her right to his guardianship� the case, in re hamilton (1989), received a lot of press coverage and langrock, sperry and wool became known as a firm supportive of gay couples� this led to significant private client work, concerned with powers of attorney, wills and trusts, and the guardianship and adoption of children, as well as problems arising from the breakdown of long-term same sex relationships: the structuring of private transactions and use of public law mechanisms to try and generate rights for same sex couples similar to the rights the law would normally grant to married couples� as well as this private client work the firm also intervened in adoption of b.l.v.d. and e.l.v.b (1993) by filing an amicus curiae brief� this case held that adoptive same sex step-parents were to be treated in the same manner as other step-parents for the purposes of adoption law, the judicial decision was later given statutory force�37 thus, murray and robinson were very familiar with the difficulties generated for same sex couples by the legal refusal to allow them to marry each other – indeed, cobbling together legal arrangements to assuage these problems was a significant source of work for their firm� in the light of the needs of their clients and the injustice they felt was generated by denying marriage to same sex couples murray and robinson decided to try and amend the legal situation in vermont� the groundwork began in 1995 when they became founder members of vermont freedom to marry task force� in the words of robinson:38 “all the great case citations in the world won’t get you to your goal if the political and educational context is wrong�” the first task was one of building an organisation of activists, establishing links with potential allies, and generating public awareness and acceptance� public meetings were held, and it is from such gatherings of supporters that litigants came forward for the test case, three couples willing to sue for the right to marry each other� speakers went to church groups and community groups to make people aware of the real problems caused to same sex couples by the discriminatory law� from these meetings support was obtained and new activists emerged� people were trained to speak to media representatives and the general public about same sex marriage and a general educative effort was made, in an attempt to reach those who would be willing to support the cause, but who may never have given the problem any real thought� the effort to garner support and educate people would not stop when suit was filed in 1997� however, the grass roots activity was a vital preparation for the inevitable resistance the campaign would face after filing� the case of state v baker was commenced in 1997, and the arguments were directed to the constitutional provisions of the state of vermont�39 vermont has a “common benefits clause” that provides:40 37 15a v�s�a� 38 (2001) 11 seton hall const� l� j� 237 at 241� 39 the original brief filed by bonauto, murray, and robinson is available at: (1999) 5 mich j gender & l 409� 40 ch� 1 article 7� 281 practical nous as the aim of legal education? “that government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community …�” the argument was that this clause, and the jurisprudence upon its meaning, made marriage laws that prohibited same-sex marriage unconstitutional, as it favoured one part of the community and there was no valid state purpose served by the discrimination� essentially, this argument was accepted by the vermont supreme court� however, rather than ruling prohibition of same-sex marriages unconstitutional the majority deferred any remedy in order to allow the legislature to consider the matter� thus, the third phase of involvement by murray and robinson was around the legislative consideration of the issue� murray gave evidence to the house judiciary committee, and they both took part in organising evidence and lobby activity as part of the newly formed vermonters for civil union defense fund (essentially organising the same activists as the vermont freedom to marry task force)� also, they personally lobbied members of the legislature, a form of representation robinson found very distinct from advocacy in litigation:41 “it’s certainly different from litigation� as a lawyer, i’m used to crossing the street to avoid the judge if i’m in the middle of a trial lest i inadvertently walk into an ex parte contact� in the legislative process, on the other hand, i found myself prowling around the coatroom just hoping to catch a legislator for a quick, private conversation� the rules of the game are quite different, and sometimes a little messy�” having decided to support the civil union bill, despite reservations of principle, murray and robinson played an important role in the bill’s success� they also campaigned in the hotly contested elections of 2000 in vermont, in which the issue of same sex marriage loomed large� in the light of this account it is hoped we can illustrate what is meant by practical nous� it certainly includes knowledge and skills normally associated with the legal professional� the possibility of the argument (based on the relatively more obscure article 7, and not the federal law) and the supporting judicial history of dealing with the provision was founded in knowledge; and had the quality of expertise rather than competence�42 the arguments deployed played heavily with a powerful analogy (the striking down of laws that prevented miscegenation in marriage) and with ethical arguments founded upon empathy for the individuals affected by the discrimination as individuals (problems of responsibility for children after tragic death, the exclusion of people from medical decisions concerning their life partner, arbitrary unfairness and insult) combined with a strong appeal to the local legal tradition for tolerance, progressive thinking and justice� rhetorically, the briefs combined technical plausibility with appealing ethical arguments – inviting the supreme court to do the right thing and in so doing to advance a proud tradition� thus, there is no argument here that practical nous can be built upon professional inadequacies; on the contrary high levels of professional skill are called for� what may be more unusual for an aim of legal education is the realisation that the legal struggle had to also be located in a cultural or political struggle� legal expertise is effective, it has traction, 41 (2001) 11 seton hall const� l� j� 237 at 253� 42 the distinction we are making is between competence that tries to avoid being wrong by covering the bases, and expertise that exploits a clean focus and greatly increases the chances of success� 282 international journal of clinical legal education issue 19 when it is understood that legal argumentation is founded in broader social dialogue� what seems reasonable, or possible, or absurd is determined by the lay discourse� thus, in a slave owning democracy dred scott v sandford seemed a reasonable defence of private property�43 thus, in the context of the struggle against racist political parties in world war ii, the burgeoning sense of collective responsibility of the welfare state, and the increasing effectiveness of the civil rights movement, brown v board of education of topeka seemed a possible judicial response to a policy of segregation in an area that fatally undermined hopes for equality of opportunity�44 thus, in the context of consensual sexual acts between people of the same sex being criminal in most states the arguments in singer v hara were absurd�45 that what is possible in legal argument is dependent upon broader discourse is both obvious and problematic for any transcendent account of law� practical nous is not a transcendent account of law; it is demonstrated by dealing with the contingent and dependent nature of the law in society� murray and robinson did not simply understand that social context matters; they intervened to shift the discourse� the activity of the vermont freedom to marry taskforce had directly beneficial impacts upon the litigation strategy� discussion in different settings honed the arguments eventually used in court; the plaintiffs in the litigation came forward, and were able to prepare for a novel public role imposed upon them by their role in the litigation; the taskforce provided a supportive environment in which the litigation could be discussed� furthermore, political support and the resources of allies were secured for the activities of the taskforce� however, the rationale of the group was the preparation of public opinion for the litigation� it was a self-conscious effort to shift the discourse towards one that would view gay and lesbian marriage as a realistic possibility, as a desirable possibility, and as an issue about being fair and decent to fair and decent people� as described by robinson:46 43 (1857) 60 u�s� 393� dred scott was infamous not for confirming the status of the scott’s as slaves, as determined by the law of missouri, but for gratuitously declaring congress’ use of its power to prohibit slavery in the territories unconstitutional and providing an explicitly racist justification for the exclusion of african americans from citizenship� see: walter ehrlich, they have no rights (2007) applewood: lea vander velde, mrs. dred scott (2009) oxford university press: new york, ny; for insight into the lives behind the litigation� dred and harriet scott were not deliberately involved in a test case; they sought freedom on well established grounds, probably for the sake of their two daughters, and were surprised by judicial activism that denied them well established rights� sanford may well have fought the litigation as a rule entrepreneur, opposed to any legal recognition of rights that might weaken slavery� sanford was certainly an active lobbyist in his business life� 44 (1954) 347 u�s� 483� kluger’s account of the discussions that preceded the arguments before the supreme court in brown makes dramatically clear that counsel decided it was possible the court would overturn educational segregation, there were strong arguments that it was also possible that it would not do so, and that a more cautious policy that gave the court the option to enforce the “equality” requirement in plessy v ferguson (1896) 163 u�s� 537 might be more prudent: richard kluger, simple justice (2004) vintage books: new york, ny at pp� 510-542� 45 (1974) 11 wn� app� 247� barclay and fisher argue that the singer case was not a failed attempt to obtain recognition of same sex marriage, but rather an attempt to: “effectively reclaim ownership and legitimacy over the idea of same sex marriage”, scott barclay and shauna fisher, cause lawyers in the first wave of same sex marriage litigation, in cause lawyers and social movements, eds� austin sarat and stuart scheingold (2006) stanford university press: stanford, ca at p� 96� 46 (2001) 11 seton hall const� l� j� 237 at 243� 283 practical nous as the aim of legal education? “we raised these policyish issues during our public education work but, frankly, they were not the most important messages we share� far more important were our stories – real stories about real people and the reality of our lives� … those stories, and our willingness to be honest and open about our lives and our families, cut through the myths that bind gay and lesbian progress far more than any policy paper or research project ever could�” the key rhetorical shift is away from defining people by their sexual conduct (gay and lesbian marriage) and towards defining people as individuals, couples, and families who happen to be gay or lesbian� if this frame is accepted then it is obvious that treating such people differently is discriminatory, and therefore the refusal to allow them to marry requires justification� if enough church groups, media reports, and public discourse adopt that viewpoint then public discourse has been changed� that change to public discourse was the aim of the stories, meetings, discussions, and media appearances� that changed discourse provided the context that would allow the supreme court to accept the arguments addressed to it� murray and robinson not merely saw the importance of the public discourse; they acted effectively to shift it towards a discourse that saw the question as one about discrimination� the suggestion here is not that legal education should have compulsory modules on organisation and mobilisation� the practical skills murray and robinson deployed were linked to but went beyond those necessary for legal practice� the feature of importance to legal education in this aspect of our account is the practical nous to realise the necessity for addressing the public discourse� an understanding of the reliance of successful legal advocacy upon the structure of lay discourse is important for the provision of expert legal services� helping students to see the commonalities across the discourses is something legal education should be concerned with� awareness of the vital links between discourses, and indeed between various lay discourse inter se as well as between lay discourse and legal, is vital in commercial contexts as much as in political ones� indeed in the light of the practice of langrock, sperry and wool the commercial and the political were undifferentiated in important respects� the final aspect of the account considered here is the lobby activity that followed the judgment in state v baker� the judgment raised three related problems for murray and robinson, and all those involved with the campaign� first, the refusal of the supreme court to grant the remedy sought was game changing� the litigation had been argued on a simple win or lose basis: either civil marriage between gay and lesbian couples should be recognised by vermont, or the law should remain that marriage had to be between a man and a woman� legal principle and logical consistency made anything less than equality of treatment a violation of citizens’ rights� the new phase made the issue political not legal� once in the political arena the possibility of compromises, such as civil union, was present� if the campaign was about legal redress through the courts then taking part in the political process undermined credibility and weakened bargaining position� again robinson’s account highlights the nature of the issue as seen from her vantage: “the court acknowledged that the vermont constitution was there to protect gay and lesbian vermonters as much as any other vermonters, but then turned us over to the political process as if our constitutional rights were subject to popular vote�” in the spirit of practical nous the campaigners continued the campaign into the political arena� the problem was to achieve what was needed; the litigation was a preferred road to legal change, but 284 international journal of clinical legal education issue 19 the purpose was legal change� realistically refusal to make political representations would have been to reduce the chances for an acceptable outcome� also, the arguments and the representative resources were already in place as a result of the pre-litigation activities of the taskforce, and the lawyers who had argued before and persuaded the supreme court had a unique weight behind the evidence they gave to the committee that was considering the issue on behalf of the vermont legislature�47 second, was the problem of what was appropriate for legal professionals to do in terms of conduct in connection with the political process� giving evidence before the committee had been not dissimilar from public education and advocacy in court� robinson, as noted above, found the lobby process disconcerting, because it is not subject to procedural safeguards familiar from litigation� we argue below that some of this discomfort is self-deluding, because lawyers have been involved in the political influence business for a very long time and remain active in the field today� third, and finally, the campaigners had a difficult choice to make when the committee reported� the principle of equal rights was recognised, but the politically charged decision to allow civil marriage was shied away from� the recommendation was for legislation to create a novel status for gay and lesbian couples, civil union, all the consequences of marriage but not the name� without the support of those involved in the baker litigation the civil union bill was doomed� to give the bill support was to compromise on an important principle� the taskforce was essentially renamed as the vermonters for civil union defense fund and the campaign put its weight behind the bill� this was congruent with the arguments developed in the campaign and is our final example of practical nous derived from this account� the arguments, in court and out, had led with stories of real people who had been insulted, disempowered, and harmed by the discrimination inherent in vermont’s marriage law� civil union was still insulting, but it empowered and avoided harming gay and lesbian couples and their families� if law is about justice and fairness in social life then the civil union was a vital step forward, it provided for an equality of legal consequences with marriage� it also allowed people to live with the reality of social and legal recognition for gay and lesbian relationships, and as robinson puts it: 47 murray and robinson seem to have seen the shift from court to legislature, and from principle to political arrangement in an overwhelmingly negative light, for them the supreme court’s timidity in remedial terms was a disappointment� however, eskridge saw this aspect of the vermont experience as a positive, because it allowed “equality practice” – the community to practice a more equal legal and social life in a movement towards full equality (as one might practice fishing without catching any fish)� the account of equality practice (and the discussion of how it sits within jurisprudential theory) has strong congruence with the idea of practical nous, although equality practice is held out as appropriate to a specific area of law and practical nous is held out as a general model of law and as an aspiration for legal education� “so equality comes on little cats feet … theoretically, equality practice seeks a law-based synthesis: liberalism instructs us as to rights, communitarianism as to remedies … equality practice has the vice of messiness and the virtue of workability … the advantage of equality practice – or something like it – is that it recognises both the need to accommodate new ideas and the inability of human beings and their communities to do so without a long process of education and personal experience�” eskridge (2002) at pp� xii-xv� practical nous is seeing what is possible by being guided by the end sought rather than any given process, as with equality practice understanding that norms and laws are dynamically interrelated and that education and discourse and lived experience are all part of the situation is called for by practical nous� that is why it is so difficult to be good at it, it is not a skill based in repetition, but the ability to navigate the currents of change, more like white water canoeing, to use a metaphor favoured by jeff giddings in keynote speech 4, backwaters and cascades – a navigation guide for efforts to mainstream clinical legal education ijcle conference 2012� 285 practical nous as the aim of legal education? “the sky hasn’t fallen� the institution of marriage hasn’t dissolved� some vermont families are a little more secure, and nothing’s been taken away from anybody else�” her hope when she wrote in 2002 was that civil unions would be a precursor to the recognition of marriage for gay and lesbian couples, and as noted above that day did finally arrive in 2009� the discourse had been altered and never returned to its earlier form despite a punishing political process in the elections that followed the passage of the civil unions bill� when murray and robinson accepted the redefinition of the process as political, took part in the committee and lobby process, and supported the compromise of civil union, their actions were once again characterised by practical nous� the aims of the campaign had been consistent and the arguments deployed congruent across the three phases of the campaign� the problems faced by the clients of murray and robinson had led to their commitment to the campaign� those problems were addressed by the establishment of civil unions� the legally unprincipled compromise was a life-line to families struggling to be recognised and respected in vermont society� understanding what is possible in the face of the structure of the situation and the resources available is the essence of practical nous� this is what murray and robinson did when they accepted the need to give full support to a less than ideal, but practically important reform�48 once again we are not suggesting legal education demand lengthy study of the nature of political compromise and process� however, the case of state v baker demonstrates once again that politics and law are not hermetically sealed universes of discourse� they are linked� an awareness of the links is vital to a realistic understanding of the role of the lawyer� clients and the public interest do not demand punctilious regard to legal process and legalistic propriety� the lawyer is retained to find answers to problems, and if the best answer is to shift public opinion through a strategic engagement with public discourse and to help give birth to reforming legislation or a change in the interpretation of law then that is one avenue open to the practising lawyer; that possibility should therefore be part of legal education� hopefully, the account of murray and robinson’s efforts has left the reader with a high level of respect for their professional skills and for their ability to act effectively outside the stereotypical role of the trial lawyer, but to deploy both sets of desirable qualities towards an appropriate aim for a legal professional� rule entrepreneurship and legal professional practice a common perception of the professional role of lawyers is bound up with litigation and representation� indeed, if we broaden this idea to include dispute settlement more generally, recognising the importance of negotiation, then it probably accords with the assumptions of many legal professionals, both within and outside of academia� however, it neglects three important aspects of professional practice: the structuring of transactions, the role of lawyer as agent, and the modification of rules (what we have termed above “rule entrepreneurship”)� it is this last, role that our argument is focussed upon here� our argument is that rather than taking the law as the given structure of action within which our students are called to operate, whether on behalf of clients or the public good, lawyers do, and always have, acted as rule entrepreneurs� 48 here is robinson on the principle of civil union (2001) 11 seton hall const� l� j� 237 at 249: “… the vermont supreme court opened the door to consideration of a ‘separate-but-equal’ regime for gay and lesbian couples in marriage by suggesting that after all these years of walking we were entitled to ride on the bus – but it might be okay to require us to sit in the back�” 286 international journal of clinical legal education issue 19 william blackstone serves as an example of the historical depth of rule changing role for lawyers� the author of the commentaries on the laws of england was involved in the passing of private acts of parliament, and the management of a rotten borough on behalf of his clients when he worked as a barrister�49 a contemporary example of the importance ascribed to professional involvement in rule changing is provided by the web site of the city of london law society, which lists seventeen committees: “ … drawn from the society’s membership, who meet regularly to discuss pending legislation, law reform and practice issues in their fields� these specialist committees provide unique city expertise and have regularly influenced the government’s law reform activities�”50 this aspect of main-stream practice was emphasised by marc galanter in his seminal article why the haves come out ahead: speculations on the limits of legal change�51 he noted that it is the lawyers who work for the “haves” (large companies, insurers, government agencies) who he termed “repeat players” who are most effective in the arena of rule changing� it is the repeat players who have the interest, and the resources, to engage in legal activity directed to changing the legal rules, or the application of the legal rules, he lamented that in terms of efficacy:52 “paradoxically, those legal professions most open to accentuating the advantages of the “haves” (by allowing themselves to be “captured” by recurrent clients) may be most able to become (or have room for, more likely) agents of change, precisely because they provide more license for identification with clients and their “causes” and have a less strict definition of what are properly professional activities�” thus, we have long known that a concern for the substantive and procedural content of the legal rules is an important part of the business of law� specifically, that lawyers have always and still do concern themselves with rule change, that the profession is interested not just in what the law is, but what it will become� we would suggest for the purpose of analysis and exposition that the policy role of the lawyer be divided into two activities: a� strategic litigation and lawyering and; b� lobby activity� obviously, and as was illustrated by our account of the introduction of civil union in vermont, the two activities are not exclusive, but dynamically linked� 49 wilfred prest, blackstone as a barrister (2010) seldon society, london at pp� 28-29� 50 http://www�citysolicitors�org�uk/default�aspx?sid=754&lid=0 last accessed 12/09/2012 51 marc galanter, why the “haves” come out ahead: speculations on the limits of legal change (1974) 9 law and society review 95 52 ibid� at p� 151� 287 practical nous as the aim of legal education? a. strategic litigation those who have ever worked for large clients will know the fear that an adverse decision in the courts can induce in clients or groups of clients� the use of “strategic litigation” to obtain (or not obtain) decisions which may adversely impact on aspects of a client’s business is well-known (see: swotbooks.com ltd v royal bank of scotland plc for an example of refusing to take a point in commercial litigation to avoid a potentially damaging judicial review of a standard contract term)�53 galanter classified those who use legal processes as either “one-shotters” or “repeat players” and he generated “ideal types” of his categories�54 thus, he sought to describe the typical repeat player and one-shotter, in order to highlight the systematic differences each type experience in encounters with legal process� the hypothesis is that these systematic differences are the causes of the observed behavioural differences across the two groups of users of legal process� specifically, that the situation of each group explains why one group, the repeat players, is far more engaged in rule entrepreneurship than the other group� for repeat players legal process is a normal work-place activity, they are familiar with the process and anticipate its demands, structuring transactions in litigation helpful ways, and generating records that will be available if litigation becomes necessary� familiarity generates reputation and relationships with officials, as well as knowledge of the market for specialist legal and other professional assistance� the size and resources of the typical repeat player (typical examples would be insurance companies or government agencies), and the routine nature of its use of legal process, mean that it can afford to treat individual litigation outcomes as business risks� this is because any one decision is unlikely to threaten the vital interests of a repeat player� therefore, it can bargain from strength and risk the occasional loss through overplaying its hand�55 in similar fashion, and for the same reasons, repeat players can “play for the rules” because the result of a single dispute is not vital, and the opportunity to influence future cases may be far more valuable:56 “for the r[epeat] p[layer], on the other hand, anything that will favourably influence the outcomes of future cases is a worthwhile result� the larger the stake for any player and the lower the probability of repeat play, the less likely that he will be concerned with the rules which govern future cases of the same kind�” the situation of the one-shotter differs in all relevant respects� the one-shotter is involved in what is likely to be a once in a lifetime experience; she is unlikely to have kept records and almost certainly accepted as given the structure of the transaction as designed by the repeat player; she has no knowledge about the market for specialised professional services; and she has no established relationships or reputation to use or protect� for the one-shotter the outcome is felt to be vital, and the financial and psychological costs of losing in the legal process are likely to be seen as prohibitively high� the one-shotter does not plan to return to the arena again� therefore, the one-shotter has no personal incentive to seek rule change, and the perceived risk of pursuing rule 53 [2011] ewhc 2025 (qb) 54 marc galanter, why the “haves” come out ahead: speculations on the limits of legal change (1974) 9 law and society review 95 at 98� 55 ibid� pp� 98-103� 56 ibid, at 100� 288 international journal of clinical legal education issue 19 change is far higher than for the repeat player�57 thus, systematic differences in aims and resources between the groups that use legal processes predispose one group, the repeat players, toward rule entrepreneurship and the other, the oneshotter group, toward a sole focus upon the dispute at hand� this explains the “paradoxical” (perhaps counter-intuitive would be more accurate) outcome galanter described in the quotation above� “paradoxical” because the powerful and regular users of legal process, whose interest are most likely to be reflected already in current law and practice, are also the most energetically engaged in rule entrepreneurship through litigation� this role of the lawyer is prominent in normal commercial practice� to some degree some of these systematic differences between repeat player groups and oneshotter groups have been reduced by the growth of specialist groups of lawyers acting for many one-shotters� members of such professional organisations may act as rule entrepreneurs through strategic litigation, in a similar fashion to the use of test cases by cause lawyers�58 in the uk examples of such organisations include: the immigration lawyers’ practitioners association;59 the housing law practitioners association;60 and the association of personal injury lawyers�61 all these professional organisations expressly identify development of the law and legal process as an aspect of their work� through their activities they also increase the collective benefits that can be derived from successful test cases by sharing information on cases going through the lower courts� thus, the impact on future litigation and negotiation is increased through use of the network, and individual members of the network can gain professional reputational benefits by assuming a rule entrepreneurship role� however, professional loyalty to the client means the strategic aspect of litigation must be subservient to the interest of the individual client, unlike a repeat player who can sacrifice its own interests in a dispute for its own long term advantage� individual firms select and promote test cases, usually cases that can be funded through legal aid, which may result in political change� a recent example of self-conscious use of litigation to pursue a social justice agenda was actions brought by public interest lawyers for judicial review of the government’s community action programme and work academy schemes�62 57 ibid� pp� 98-103� galanter makes the valid point that analytically repeat players and one–shotters are independent groups to the “haves” and implied “haves not” of his title; however, as he notes, there is obviously a strong overlap between the memberships of the repeat player and the haves groups, and the one-shotters and the havenots groups� ibid� pp� 103-104� 58 it is moot whether such organisations and their members should be thought of as cause lawyers or not� the tension between altruism and the need to make a living is always present, and it is in part a question of whether good intentions or effectiveness should be given most importance: see austin sarat and stuart scheingold, cause lawyering and the reproduction of professional authority: an introduction in cause lawyering: political commitments and professional responsibilities (1998) oxford university press: oxford� obviously our case study of langrock, sperry and wool is an example of a profitable but socially engaged firm� a concern with nous would tend to emphasis effectiveness over good intentions� 59 http://www�ilpa�org�uk/pages/ilpas-influencing-work�html last accessed 30/05/2013� 60 http://www�hlpa�org�uk/cms/about-hlpa/ last accessed 30/05/2013� 61 http://www�apil�org�uk/campaigning last accessed 30/05/2013� 62 http://www�publicinterestlawyers�co�uk/news_details�php?id=263 last accessed 28/05/2013� see also: http://www� guardian�co�uk/society/2013/may/23/benefits-cap-catastrophic-effect-families?intcmp=srch last accessed 28/05/2013� 289 practical nous as the aim of legal education? b. lobby activity the rule entrepreneurship of repeat players is likely to extend to political action as well as strategic litigation:63 “first, it pays an r[epeat] p[ayer] to expend resources in influencing the making of the relevant rules by such methods as lobbying” of course an organisation may not involve its lawyers in lobbying, and in this important respect for our purposes lobby activity differs from litigation� litigation is universally recognised as mainstream legal service� however, involvement by law firms in lobbying activity on behalf of clients seems to be relatively common� a very useful study by matthew darke was published in 1997 reviewed the activity of australian national law firms as lobbyists in canberra, the federal capital�64 all nine of the largest australian law firms were active, and most of the activity was on behalf of business corporations or commercial associations�65 interestingly, the service was one the lawyers providing it characterised as going beyond mere representation, rather being informed by what we have termed here practical nous as the lawyers are involved in evaluating what it is sensible to attempt:66 “the law firms interviewed for this thesis were of the view that their lobbyists act as mediators because they inform their clients if a particular goal is unachievable�” indeed, the description by darke of the services aspired to by law large law firms for their business clients approaches a description of nous informed support, proactive as much as reactive, and concerned with all practical factors that influence business success and failure:67 “a comprehensive and proactive style of lawyering in which lawyers try to shape their clients’ legal, economic and political environment”� clearly, what is being described includes rule entrepreneurship as part of comprehensive legal service� rule entrepreneurship may not be in the service of individual clients, as seems to be the case with the work of the city of london law society�68 one might describe the representation of 63 marc galanter, why the “haves” come out ahead: speculations on the limits of legal change (1974) 9 law and society review 95 at 100� 64 matthew darke, lobbying by law firms: a study of lobbying by national law firms (1997) 56(4) australian journal of public administration 32-46� 65 ibid� at p� 34� 66 ibid� at p� 38� 67 ibid� at p� 42� 68 http://www�citysolicitors�org�uk/default�aspx?sid=754&lid=0 last accessed 02/07/2012 290 international journal of clinical legal education issue 19 collective interest as a form of elite cause lawyering�69 however, it is likely that the majority of rule entrepreneurship by commercial law firms is driven by client service� the house of commons political and constitutional reform committee in march 2012 accepted an estimation that 20 law firms in the united kingdom currently engage in direct legislative lobbying of parliament on behalf of specific clients� 70 if the australian experience that most law firm lobbying was to administrative bodies is representative, then this activity in the legislative field is probably a small part of the total activity at westminster� direct “client-based” lobbying by uk based law firms appears to be more prominent in engagement with european union institutions� one firm in brussels states on its website that:71 “our government affairs lawyers and advisers assist clients by monitoring, lobbying and intervening in eu legislative and policy developments, through contacts with eu decisionmakers in the commission, the european parliament and the council�” less overtly, another indicates that: “our multidisciplinary and multilingual lawyers enjoy strong professional and personal contacts with european regulatory and legislative bodies, offering clients up-to-the-minute knowledge of procedures and policy priorities at the european level�”72 rule entrepreneurship by uk law firms through lobbying is alive and well� it is not only on the commercial side that such activity is a part of legal services� an organisation that represents perhaps more one-shotter clients than any other is citizens advice whose mission includes: “improve the policies and practices that affect people’s lives” together with the more familiar provision of: “the advice people need for the problems they face”�73 the parliamentary activity of citizens advice is well-documented and a transparent example of lobbying practice in the public interest� public interest legal practice, or cause lawyering, tends to attract accusations of being “political” as opposed to “legal”, in a way that echoes the asserted independence of expository (legal) and censorious (political) jurisprudence� in the light of this it is worth noting how much of the practice described by academics or practitioners as “cause” law is familiar from the “ordinary” practice we have already noticed above� indeed, this has been reflected in the provisions of ethical canon 8�4 of the american bar association’s model code of professional responsibility (1994) as cited 69 see: ann southworth, professional identity and political commitment among lawyers for conservative causes and laura hatcher, economic libertarians, property, and institutions: linking activism, ideas, and identities among property rights advocates both in austin sarat & stuart a� scheingold, the worlds cause lawyers make: structure and agency in legal practice (2005) stanford university press: stanford, ca� see also: keven r� den dulk, in legal culture but not of it: the role of cause lawyers in evangelical legal mobilisation in austin sarat & stuart a� scheingold, cause lawyers and social movements (2006) stanford university press: stanford, ca� see finally: keven r� den dulk, purpose-driven lawyers: evangelical cause lawyering and the culture war and laura j� hatcher, of windmills and wetlands: the press and the romance of property rights both in austin sarat & stuart scheingold, the cultural lives of cause lawyers (2008) cambridge university press: cambridge� 70 http://www�publications�parliament�uk/pa/cm201213/cmselect/cmpolcon/153/15306�htm#a5 last accessed 28/05/2013� the table was derived from: hm government, introducing a statutory register of lobbyists, impact assessment, january 2012� 71 http://www�whitecase�com/brussels/ last accessed 02/07/2012� 72 http://www�hoganlovells�com/brussels-belgium/ last accessed 02/ 07/2012� 73 http://www�citizensadvice�org�uk/index/aboutus�htm last accessed 02 /07/ 2012� 291 practical nous as the aim of legal education? by galowitz:74 “whenever a lawyer seeks legislative or administrative changes, he should identify the capacity in which he appears, whether on behalf of himself, a client, or the public� a lawyer may advocate such changes on behalf of a client even though he does not agree with them� but when a lawyer purports to act on behalf of the public, he should espouse only those changes which he conscientiously believes to be in the public interest�” in similar vein it has been noted that sometimes the most effective and persistent “cause lawyers” turn out to be the jobbing professionals rather than the ideologically motivated practitioners�75 however, the context of cause lawyering for oppressed client groups or left wing or progressive causes has increased the attention given to the rule changing activities of lawyers� indeed, the feeling that rule entrepreneurship is not part of lawyers’ traditional role undoubtedly informed the express and severe restrictions imposed in the united states of america upon federally funded lawyers’ freedom to undertake such activities a process described by galowitz�76 this is one area where developments in the us and the uk are divergent, as can be seen from a consideration of the approved role of the citizens advice bureaux (cabx), an organisation that provides an example of rule changing activity based upon the “representation” not of individual clients but of a social interest group in the uk� it is not usual to regard the cabx as a transgressive or radical organisation, and as we notice below law student placements at cabx are not uncommon, and serve as a real world example of the importance of rule entrepreneurship in contemporary legal education� clinical legal education and practical nous hopefully we have demonstrated above that doctrinal legal education is based upon a limited understanding of the nature of law and legal practice, and that this limited understanding has given rise to a limited perception, a limitation that has prevented important aspects of legal practice being perceived� one aspect of practice that has been obscured by this theoretical blindness is the rule entrepreneurship of legal actors, especially legal professionals� we have shown that there is plenty of rule entrepreneurship going on in legal practice, in mainstream private practice and in cause lawyering, which is located both within and outside the mainstream business of law� we have suggested a shift in theory will allow the subjunctive aspect of law to become visible, and the game like properties of law to come into focus� finally, when this shift in awareness takes place we can realign the aspirational purposes of legal education to what we have called practical nous and illustrated by an example of legal practice in vermont� so far we have not explored the links between clinical legal education, our conception of a subjunctive model of law and legal practice, and our concept of practical nous� 74 paula galowitz, restrictions on lobbying by legal services attorneys: redefining professional norms and obligations (1994) 4 b�u� public interest law journal 39 at n� 151� 75 our account of the murray and robinson has this feature, see also: rohen shamir and sara chinski, destruction of houses and construction of a cause: lawyers and bedouins in the israeli courts, in cause lawyering: political commitments and professional responsibilities, ed� austin sarat and stuart scheingold (1998) oxford university press, oxford at 227-257; some tort and employment law practices allow the service of both clients and the public interest� 76 paula galowitz, restrictions on lobbying by legal services attorneys: redefining professional norms and obligations (1994) 4 b�u� public interest law journal 39� 292 international journal of clinical legal education issue 19 practices it would be possible to argue that client advice and the provision of legal services through negotiation or adversarial process is more naturally understood (and therefore should be taught) in terms of client aims, and wins or losses than doctrine, rights, remedies and process; in other words that clinical legal education naturally pulls legal education away from the inculcation of faculty in exposition and theoretical awareness as ends in themselves� however, it is in those areas where theory induced blindness is operative that the educational potential of clinical legal education is greatest, and where opportunities are perhaps not being taken because of the lack of an articulation of a vision of legal education informed by practical nous� therefore we shall note examples of clinical legal education operating in the space between exposition and evaluation� indeed, it was realisation that the student clinical experience was generating understanding that was not explicable or classifiable within a doctrinal legal frame that began the process that led to this article� our experience has been that student placements with the cabx regularly generate student awareness of problems with the existing substantive laws and procedural rules� students realise that the role of the advisor can be reciprocal, the lawyer gives out advice but learns from the client what is happening in the world� the collection of information to inform the legal reform process is an explicit part of the advisor’s role in cabx� as cabx advisors students are required to develop a sense of whether law is just in the sense of being fair and apt, and whether the law is administered justly or unjustly; this necessary sense of justice being additional to needing to know what the law is, and how to negotiate the legal or bureaucratic processes� this sensitivity to justice in practice is required to meet the objectives of the organisation that the students have volunteered to serve� our third year undergraduate clinical legal education module involves placement with organisations such as cabx� the engagement with the law reform aspect of the organisation’s work often provides students with an excellent basis to satisfy learning outcomes which relate to critical evaluation of the fairness or otherwise of the law� we have captured this opportunity for developing theoretical awareness, but the challenge is to exploit it as a bridge to the development of nous� the practice presents the opportunity, but without an articulation of what we seek it is very difficult to generalise from the experience and take full educational advantage� another aspect of our practice that facilitates theoretical awareness, and could be used to foster nous, is participation by our students in work for the innocence project�77 our innocence project is also available to third year undergraduates on the clinical legal education module� though expressly not a campaigning organisation, the aim of the innocence network to which our project subscribes involves: “…improv[ing] the criminal justice system by overturning convictions… and effecting reforms of the criminal justice system to prevent such wrongful convictions from occurring in the future�” inevitably, the work that students engage in often involves their realising systemic weaknesses exist within both the process of criminal investigation and trial process, weaknesses which can lead to miscarriages of justice� this in turn can lead to awareness of the need for reform of the relevant statute, or reform of the manner in which the criminal cases review commission in england 77 http://www�innocencenetwork�org�uk/about-us last accessed 30/05/2013� 293 practical nous as the aim of legal education? and wales interprets its statutory role, and thus develop an understanding of the role of rule entrepreneurship within legal practice� a final and somewhat more unusual example from our own experience has been with students who are seeking to use experience working with an ngo in the indian state of kerala as part of this same module� students working in kerala have worked on projects which involved scrutinising proposed environmental legislation for the state legislature� clearly these students had direct engagement with a rule changing process and gained insight into the processes that lead to legislative change� cast in the role of legislator the problem of trying to anticipating how various interests could be affected by legal change becomes unavoidable� thus, awareness of the plasticity of policy aspects of the legal environment, awareness of the possibilities and limits upon rule entrepreneurship, are naturally embedded in clinical legal education programmes already� it is from awareness of such factors as elements or aspects of legal practice that the development of practical nous can begin� fransiscus haupt’s account of the university of pretoria law clinic’s activity shows how, after many years of development, a university law clinic can engage in rule entrepreneurship through direct lobbying:78 “it [the clinic] is also increasingly involved in advocacy, lobbying, as well as engaged scholarship, and research that sometimes informs government policy:” we are aware of other examples from the practice of colleagues and made public though journal conferences� richard owen’s paper at the ijcle conference in 2010 outlined a module delivered at the university of glamorgan which engaged students in lobbying the welsh assembly to achieve policy and legislative change�79 while the focus of the module was specifically on developing student engagement with public policy and political processes, the development of political understanding which this entails can feed directly into what we have termed practical nous, and provide an opportunity for the development of an understanding of rule entrepreneurship� finally, the bill of rights project created at northumbria university engaged students on an extra-curricular basis in responding to a government consultation on proposals to replace the human rights act 1998 with a british bill of rights�80 the bill of rights project involved students participating in the processes associated with legal change, involving a potentially fundamental constitutional change� this particular project was not formally assessed� however, such activities could be incorporated into assessed modules� whether assessed or not the project illustrates how, with a relatively small institutional investment of resources, students can be enabled to engage with the actual processes associated with legal change� engagement with such political or quasi-political processes quickly bring awareness of limits to the possible, an awareness that can be used to assist in the development of nous� for uk clinicians the use of law commission consultations, as a basis for a clinical module or extra-curricular law school activity, represents a clear opportunity to engage students in the process of rule change, and possibly even rule entrepreneurship� 78 franciscus haupt, university of pretoria, south africa, towards “clinic for all”: the evolution of a south african university law clinic: from volunteerism to institutionalized community engagement, ijcle conference paper 2012� 79 richard owen, making a difference: using clinical legal education for policy change ijcle conference paper 2010� 80 richard glancey, ronagh craddock, and rachel dunn northumbria law school students’ bill of rights project ijcle conference paper 2012� 294 international journal of clinical legal education issue 19 conclusion thus, it seems that although the legislative advocacy clinic run by professor pottenger at yale is unusual in its clear identification of policy work as legal education it is not alone in engaging upon such activity�81 we hope that in this article we have managed to articulate some of the reasons why such policy orientated clinical legal education is in fact not merely appropriate but should be central to clinical legal education and legal education more generally� legal education is inescapably influenced by the theories that inform educators� clinical legal education has tended to be viewed as a rather theoretically barren area of legal education: focused upon polishing skills such as english composition and the drafting of business documents, note taking and filing, communication skills involved in client interview and advice giving, and presentational skills such as posture, elocution and rhetorical structure of arguments� clinicians have had to struggle for equality of respect and contractual conditions� those involved in clinical legal education know how ill informed such views are, and that the educational benefits of clinical legal education transcend such trade school caricatures in many ways� however, in an academy dominated by the presupposition that legal education is about facility in exposition and theoretical awareness clinical legal education is under constant pressure to try and justify itself in such terms� we have argued that these aims are fundamentally inadequate as they distort the very nature of law as a discipline� law is meaningful in a practical context and as part of a social process that is game like in nature� it is clinical legal education that most naturally allows this aspect of law to become apparent, and the aims of legal education should not be limited to those associated with doctrinal law but should include the cultivation of practical nous� as we have noted, this does not mean that exposition, or theoretical awareness should be discarded, but that they should take their subordinated place, along with clinical programs, in the development of those skills (intellectual as well as practical), personality traits (such as ethical behavior), and knowledge and understanding (including thinking like a lawyer) that together can begin the process of developing practical nous� in this context we can perhaps realize the full import for legal education of the well known observation by lewin that:82 “there is nothing so practical as a good theory”� as a good theory both arises from practice and has practical applicability, the theory we need is the theory that will enable us to fully articulate the nature of practical nous� the practical aspect of clinic should put it in the centre of good legal theory, and thus at the centre of academic legal thought� difficulties in harvesting the full potential gains from clinical legal education are in part generated by a blindness generated by a partial theory of law and practice in the academy� 81 professor pottenger delivered tales from a policy clinic: triumph, tragedy & tribulation – but no ‘trials’, the opening key note presentation at the ijcle conference2012� 82 kurt lewin, problems of research in social psychology, in resolving social conflicts and field theory in social science (1997) american psychological association, electronic edition, loc� 6858� student law office conference: a platform for student engagement with clinical legal education? mark lynn introduction i was one of a group of students from northumbria university who organised the first student conference on clinical legal education on saturday 4th december 2004.1 this short article is intended to explain why we thought such a conference was necessary and whether it was worthwhile. why a student conference on clinical legal education? clinical legal education has been established in other legal jurisdictions for decades and is seen as essential in providing the aspiring lawyer with pre-practice experience, yet it is still a relatively recent development in the united kingdom. it is currently one of the fastest growth areas with increasing numbers of law schools establishing law clinics. however, there has been relatively little input from students regarding the nature of clinical legal education or the costs or benefits it brings. northumbria students spend a great deal of time in the student law office, through clinical modules at northumbria, and constantly reflect on their personal and professional development. yet relatively little time is spent considering the way our clinical education is structured and delivered and what its aims and objectives should be. we saw the conference as an ideal opportunity to explore these wider issues and, more importantly, to involve students and staff from other institutions in this dialogue. the conference provided a forum for the exchange of ideas and information and provoked debate about the future of clinical legal education. the objective of 69 student law office conference: a platform for student engagement with clinical legal education? 1 the event was kindly sponsored by ben hoare bell solicitors of sunderland. the conference was to obtain the views of different clinics and promote this type of legal education throughout the country. the conference proceedings the conference was opened by rebecca barnes of the solicitors pro bono group and professor richard grimes of the college of law. rebecca addressed the relationship between clinical legal education and lawyers’ commitment to the principle of pro bono. richard summarised some of his recent research into models of clinical legal education in the united kingdom. this was followed by a plenary session called ‘learning from each other’ with a number of short presentations from visiting departments who shared the work of their clinics. following this, there was a panel discussion on clinical experience and career opportunities with former students who are now in practice and employers who had experienced clinical legal education. this involved discussions of whether the work which students had encountered in their law clinics had been of a benefit to them in practice. after lunch the conference split into workshops to discuss the dilemmas of working for real people. this workshop was designed by students from the committee and included real dilemmas encountered by students working in the student law office, with due regard to confidentiality issues. the aim of these sessions was to provoke debate about the ethical, moral and practical dilemmas that students face in legal clinics as a result of working for real people. after discussing a number of issues in the various workshop groups, everyone in their group attempted to reach a consensus on two important issues to report back to the whole conference in the next session: (i) clinics should only work for those who cannot afford a lawyer (ii) clinics should only work for those who have a deserving case. each group’s feedback was then discussed before the whole conference and a number of ideas were exchanged. after a mid-afternoon break, the day finished with a session grandly entitled ‘the utopian clinic’ whereby everyone had the opportunity to vote for their ideal clinic using “who wants to be a millionaire” technology. during the course of this plenary a number of questions were put to the audience. for example: “should clinical legal education be compulsory?” “should clinics combine campaigning activity alongside case work?” or even: “should students be paid for working in law clinics?” there was a resounding ‘yes’ for the latter! themes emerging from the conference discussions the conference proved to be a huge success. throughout the day it became very apparent that the amount of law clinics in this country was on the increase. during the workshop ‘learning from each other’ everyone gained a deep insight into how far clinical legal education in this country has come. rebecca barnes from the solicitors pro-bono group made the point that when she studied law there was no such thing as pro-bono and that she only gained experience of this when she began her training. pro-bono is very important and should be promoted as it provides the chance to help people and solve the imbalance that exists in the law. richard grimes has done much research in this area and has found that there has been a steady increase in the amount of law clinics, which are being set up. he emphasised how important this type of education is by stating “clinical legal education is all about studying the law through exposure to real or realistic case 70 journal of clinical legal education august 2005 work with structured reflection”, thus giving students the opportunity to think through what they have done. only recently, queen mary university in london became the latest legal education provider to launch a pro-bono group, which shows that clinical legal education is on the increase. the group has already secured placements for queen mary students with clifford chance in its canning town project and with allen & overy with its new twinning project. as briefly mentioned earlier, the conference involved a number of short presentations from visiting departments which included students and academics from bpp, kent, sheffield hallam, de montford, bristol and northumbria. this workshop enabled everyone to see how each university’s law clinics worked and to assess the differences between them. the workshop began with james heward from bpp who is working at a legal advice centre in london, which only started full time operations in clinical work in october 2004. he explained that the advice centre initially learnt from a pilot scheme and that the attending students at the law clinic complete work with the help of a supervisor, similar to that of northumbria (but the clinic at bpp remains voluntary and does not count towards assessment, unlike northumbria). such an idea was initially considered in october 2003 and they subsequently formed a committee to discuss such a possibility. originally, they felt that it was very important to consider which areas of law they should advise on, taking into account both resources and the needs of the local community. other issues to be considered included both recruitment and promotion. from his own experiences, he felt that the best route in establishing a clinic was to consider promotion at an early stage, visit conferences on clinical legal education and obtain feedback to assess how the clinic is operating. the law clinic at bpp focuses on housing and employment law, but they are also looking to expand into other areas. we then heard from rhona sharlett from de montford university who explained that their law clinic has been in operation for the past 15 years. their law clinic does not advise the general public but instead, focuses on student’s related problems. undergraduates staff the clinic and there are four supervisors who help students with their various legal problems which they encounter. due to the high profile that clinical legal education is receiving, the university has begun to run a recognised module, which teaches students about ethics, research and advocacy skills. however, de montford have experienced a few problems recently when leicester council closed down the local advice centres, which subsequently meant that there was a surge of referrals to the university law clinic. this illustrates the potential problem of law clinics being seen as a cheaper alternative to properly funded state legal services. adam wilson from sheffield hallam’s university explained that their clinic is made up of both second and third year law students who deal with work from students and members of staff. the areas of expertise are restricted at sheffield hallam; however, they run cases in a similar way to that of northumbria. the law clinic deals with about 35 cases a year, to enable students to concentrate on reflection. the type of work which they deal with includes personal injury, criminal law, contract, housing and consumer protection. the clinic operates in a similar way to northumbria university’s law clinic in that there are firms consisting of six students with about two to three cases per firm. their students must initially attend an induction course before commencing work in the clinic. this induction course focuses on interviewing, professional ethics and confidentiality. students must also compile an experience evaluation form to demonstrate and reflect on how they could have improved on what they have done. 71 student law office conference: a platform for student engagement with clinical legal education? the conference was also joined by students from bristol university, who have a law clinic which has been running for nine years. it is an undergraduate programme with about 120 student members. in setting up their clinic, they aimed not to detract from the legal profession but just to be a supplementary facility. they are primarily a community service. their law clinic recruits people through an application process, which has 30–40 places available. the new members then receive a training programme and new recruits work initially with more experienced advisors. two students from northumbria university, chris simmons and paul roberts, explained the learning experience in the student law office. they made the point that the student law office is seen as an integral part of the course, which provides a good stepping-stone for the future. students initially come into contact with the practical elements of the course in first and second year when students experience practical subjects such as litigation and evidence. proceeding to third year, students concentrate on the student law office on a hypothetical basis, which involves checking a theoretical conflict register and having a simulated interview with an actress. students are also expected to attend workshops throughout the year whereby they have to conduct research into the relevant areas of law with regards the information obtained from the interview. this experience is intended to give students an idea of what is to be expected in fourth year. in fourth year, students are given their own case files and expected to follow them through the various stages, from the initial interview, to the follow-up advice interview, to representing the client at a court or tribunal if needs be. the benefits of the student law office are that students gain a better understanding of how the law relates to real problems and how to apply this in a practical sense. the law clinic specialises in a number of areas including employment law, housing law, general civil litigation, criminal appeals and welfare benefits, now taking on about 500 cases a year. the university has very close links with local solicitor firms such as ben hoare bell and eversheds, who seek to help students with their cases. kent university students work in an in-house representation clinic at the university, which has over 130 members. their course contains a clinical option module thereby providing law students with the choice of whether to experience clinical work. at kent, the students fill numerous roles. for example, if first year law students wish to gain an insight as to how the clinic works, they can apply to be receptionists in the clinic, thus providing them with a feel of the working environment. the cases are dealt with on a ‘first come, first served’ basis, and they are not means tested. however, they have a general policy of only representing those people who can not afford legal advice. they have taken on 77 cases this term in areas such as employment, consumer protection, housing, immigration and family law. besides working on individual casework, the students also work on behalf of community groups and carry out legal research and lobbying. the students recently acted for two afghan youths who were due to be deported. the students gained publicity in the news and subsequently liaised with the home office whereby an agreement was reached, and the youths were allowed to stay. such a case proves what a ‘powerful educational tool’ clinical legal education is. finally, we heard from martin wilson, a student from northumbria university, who won a scholarship from irwin mitchell, and was given the opportunity to work in springvale monash legal service (smls) in melbourne australia, for one month. he explained the type of work he experienced over there and attempted to make a comparison with clinical legal education in england and wales. smls aims at providing a high turnover of advice to the local community and is required to take on more in-depth cases than english clinics requiring more detailed research. 72 journal of clinical legal education august 2005 he served to make the point that there are numerous similar university run schemes around australia as they see work undertaken by student run law offices as strategic in delivering legal services to the public and as a result, they appear to be much more involved in the funding of certain aspects of the schemes than occurs in england and wales. students in australia are involved in a varied range of legal problems across vast areas of law. however, he made the point that law clinics in the uk seek to serve a very different legal need, as drop in advice centres such as the citizens advice bureau already exist in the england and wales, and therefore law clinics are not expected to provide such a service. did the conference succeed? overall, i think that the day provided an excellent platform for student involvement and debate about their clinics. it enabled us to learn from each other’s experiences and see how the various clinics differ from one another. we explored wider issues such as the scope and nature of clinical legal education and how the clinics are structured and delivered. one of the major benefits of having academics and students together was that it emphasised that clinical legal education is a partnership and allows us to learn from each other rather than the hierarchical approach that is typical of most learning. it also provided the enthusiasm for another conference next year. an issue that was missing from this conference was the perspective of the client who is advised or represented by the students. how do they feel and are their interests properly considered by clinics that have education as their main objective? perhaps this is one theme that could be developed at the next conference. conferences like this one help us students think more critically and creatively about why we are doing what we do. it helps us see clinical work not just as an obligation or something attractive for our cvs but as part of what makes us understand the law and helps us become more rounded people. it should also make our lecturers see that we have a lot to offer in terms of the future of clinical programmes but this remains to be seen! 73 student law office conference: a platform for student engagement with clinical legal education? supervision in the clinic setting: what we really want students to learn douglas d. ferguson, western university, canada 1. introduction student supervision by clinicians is a constant for lawyers and staff in every aspect of clinic life. we want to ensure that students are effective in their work and learn best practices for their future careers. we also want to ensure that clients are well served by our students. my fellow canadian colleague neil gold has written about the role of a clinic supervisor in this way: the supervisor, as guide and role model, should seek to be: thoughtful; insightful; measured-to-person, need and context; learned; holistic; and above all, constructively helpful. the importance of the role of the clinic supervisor in explicating and supporting student learning cannot be understated. this interpretive and reflective modeling and methodology can contribute to students’ lifelong habits of learning and problem solving. in engaging the whole student, her thoughts, feelings, hopes and fears, the supervisor simultaneously engages the already stimulated affect and intellect of the student in her quest to deliver signal service. in this model, the student’s experiences as primary actor and her thinking and feeling about them before action, in action and upon reflection are the focal point for guided debriefings and interpretations by the supervisor and often by the student herself once she has been trained to reflect in and on action.[footnoteref:1] [1: douglas ferguson is director, community legal services in the faculty of law, western university london, ontario, canada. the author wishes to thank brienna french for her assistance with research for this paper. neil gold, “clinic is the basis for a complete legal education: quality assurance, learning outcomes and the clinical method” (2015) 22:1 int'l j. clinical legal educ. at 20-21.] this paper focuses on certain key elements of student supervision in community legal services at western university in london, canada. our clinic offers a very broad range of legal services, ranging from criminal law to wills, and consumer law to housing, with 125-150 students taking part in 800-1,000 files per year. community legal services has a very broad range of practice: practice report: teaching and learning in clinic 158 176 · criminal law · small claims court · landlord and tenant law · wills and powers of attorney · family law · mediation · immigration · employment and human rights · criminal injuries compensation · university appeals · intellectual property western law has three clinical courses: litigation practice, criminal law advocacy, and cls internship. this paper will be referring to the materials for litigation practice, which is based on civil matters. in this course, students are expected to carry 3-5 active civil files, comprising 60% of their grade. they must also take part in a number of simulations worth 40% of their grade. our students handle all aspects of their files, including trials and hearings, even going so far as to draft challenges to criminal charges under the canadian charter of rights and freedoms. they draft all pleadings and other documents, handle all meetings with the clients, and docketing their time. they handle duties that are often done by articling students or even junior lawyers. as contemplated by evans et al. in australian clinical legal education: designing and operating a best practice clinical program in an australian law school, our clinic gives students significant autonomy: clinical models involving provision of advice to clients require students to assume responsibility for their actions in a much more direct way than in other forms of legal education. in such programs, students are compelled to recognise that their actions will influence the wellbeing of others, namely their clients… this type of student development relies very heavily on supervision designed to support student autonomy.[footnoteref:2] [2: evans et al., australian clinical legal education: designing and operating a best practice clinical program in an australian law school (australia: anu press, 2017) at 141.] the first part of this paper will examine compliance with the supervision requirements of the profession’s governing body. clinic supervision in a clinic must start with compliance with the regulator. the supervision requirements of the law society of ontario are set out to demonstrate the standards community legal services must meet. i will discuss our clinic’s supervision strategies for: · ensuring students are aware of their responsibilities and are focused on their file work. · legal research and case theory; · effective communication with clients and drafting pleadings; · trial and hearing processes and strategy; · ethics and professional responsibility. this paper will then discuss the classroom component consisting of lectures and simulation exercises where we deal with professional identity, ethical issues, sensitization to the lives of our clients, awareness of the importance of access to justice, and the capacity of legal processes. i will discuss our online materials for the classroom, including our caseworker manual which provides guidance in substantive law, court/tribunal rules, and clinic policies and procedures. 2. compliance supervision must at the outset be viewed through the lens of your jurisdiction’s governing body. what the rules of your governing body or jurisdiction’s statutes require for: · the ability of law students to appear in the courts and handle legal work for clients; and · the duties of lawyers to supervise students and/or non-lawyers in a law office or clinic setting. in ontario, the governing body is the law society of ontario. its rules of professional conduct[footnoteref:3] deal with supervision in r. 6.1: [3: law society of ontario, rules of professional conduct at https://lso.ca/about-lso/legislation-rules/rules-of-professional-conduct.] 6.1-1 a lawyer shall in accordance with the by-laws (a) assume complete professional responsibility for their practice of law, and (b) shall directly supervise non-lawyers to whom particular tasks and functions are assigned. commentary [1] by-law 7.1 governs the circumstances in which a lawyer may assign certain tasks and functions to a non-lawyer within a law practice. where a non-lawyer is competent to do work under the supervision of a lawyer, a lawyer may assign work to the non-lawyer. the non-lawyer must be directly supervised by the lawyer. a lawyer is required to review the non-lawyer's work at frequent intervals to ensure its proper and timely completion. [1.1] a lawyer may permit a non-lawyer to perform tasks assigned and supervised by the lawyer as long as the lawyer maintains a direct relationship with the client or, if the lawyer is in a community legal clinic funded by legal aid ontario, as long as the lawyer maintains a direct supervisory relationship with each client's case in accordance with the supervision requirements of legal aid ontario and assumes full professional responsibility for the work. [2] a lawyer who practises alone or operates a branch or part-time office should ensure that all matters requiring a lawyer's professional skill and judgment are dealt with by a lawyer qualified to do the work and that legal advice is not given by unauthorized persons, whether in the lawyer's name or otherwise. [5.1] a lawyer should ensure that the non-lawyer is identified as such when communicating orally or in writing with clients, licensees, public officials, or with the public generally whether within or outside the offices of the law practice. by-law 7.1[footnoteref:4] of the law society of ontario deals specifically with our responsibility for supervision of law students: [4: law society of ontario by-laws, https://lawsocietyontario.azureedge.net/media/lso/media/legacy/pdf/b/by-law-7.1-operational-obligations-01-25-18.pdf.] assignment of tasks, functions: direct supervision required (3) a licensee shall assume complete professional responsibility for her or his practice of law or provision of legal services and shall directly supervise any canadian law student, ontario law student or ontario paralegal student to whom the licensee assigns tasks and functions under this section. (4) without limiting the generality of subsection (3), (a) the licensee shall assign only tasks and functions that the assignee is competent to perform; (b) the licensee shall ensure that the assignee does not act without the licensee’s instruction; (c) the licensee shall give the assignee express authorization and instruction prior to permitting the assignee to act on behalf of a person in a proceeding before an adjudicative body; (d) the licensee shall review the assignee’s performance of the tasks and functions assigned to her or him at frequent intervals; (e) the licensee shall ensure that the tasks and functions assigned to the assignee are performed properly and in a timely manner; and (f) the licensee shall assume responsibility for all tasks and functions performed by the assignee, including all documents prepared by the assignee. all of our supervisory practices are intended to comply with these law society rules. clinics should ensure that they comply with similar rules in their jurisdiction. 3. supervision strategies (a) what we want students to learn through supervision our clinic in effect operates as a law firm, with five “partners” and dozens of junior lawyers. through their file assignments and interactions with the lawyers, students develop the practice skills they will need and will see the link between legal theory and practice. the clinic setting provides one of the three apprenticeships envisioned by the carnegie report: successful apprenticeship instills these habits of the practical mind as the learner sees expert judgment in action and is then coached through similar activities. [footnoteref:5] [5: sullivan, et al., educating lawyers: preparation for the profession of law (san francisco: jossey-bass/wiley, 2007) at 97.] (b) training sessions students taking a clinical course are provided with training in two settings. first, an in-class session where basic concepts are explained, and during duty hours in the first week or two of the course. the in-class session takes place during the first week of the course. it focuses on the following themes: · the roles of lawyers, staff, and students · the legal aid system in ontario · legal research resources · our expectations of our student caseworkers · time management and balance · client relations, including reporting and returning messages · training for using time matters (by lexis nexis), our database and scheduling application · clinic policies and procedures · developing legal skills · the nature of our client base · professionalism and confidentiality · client intakes · file management · court appearances · caseworker manual we recognize that this is a lot of information to digest in a short period of time. each student is required to attend one duty hour per week (see below) in addition to file work and classroom time. during classes and duty hours more detail is provided and examples discussed with the students. (c) student responsibilities our students are completely responsible for the conduct of a file, subject to the close supervision of a clinic lawyer. their responsibilities include: · client meetings · correspondence · drafting pleadings · docketing and memos · legal research · all court appearances including hearings and trials · keeping a file organized (d) legal research and theory of the case for all most files, students are expected to draft a research memo outlining the facts, the issues, and analysing the law as it applies to the facts. this research memo is crucial, as it provides the theory of the case: a roadmap that will guide the student and others working on a file. we emphasize to students that the theory of the case will affect every aspect: pleadings, document disclosure, trial preparation, direct examination and cross-examination at trial, and closing arguments. (e) effective communication and writing as our students are responsible for all correspondence, pleadings, and memos, we spend substantial time coaching them on their writing skills. one lecture during the course is devoted to writing. for research memos and opinion letters, we provide templates with headings that students are expected to follow. this ensures students understand what is expected, and focuses them on the facts, issues, and legal analysis. we place an emphasis on writing for your audience. when writing an opinion letter or other correspondence to a client, students are told to keep the “legalese” to a minimum, and write clearly and concisely so that clients will understand our advice. when drafting a research memo, on the other hand, we tell students to assume they are drafting it for the eyes of a senior partner in a law firm. while this requires writing from more of a legal angle, we insist once again on conciseness and clarity. at times i find that students try to write in a complex or obscure manner in order to “sound like a lawyer,” but has the result of making issues less clear. at times we find that some lawyers and paralegals attempt to take advantage of our students’ inexperience by intimidating them. we sit down with the student and explain the tactics of their opponent. we ensure that our response is firm yet civil and professional. many clients do not have english as their first language. if a student is not satisfied that a client fully understands what is said, we are able to provide a translator through the auspices of legal aid ontario, our main funder. the translator can be available by phone or in person. as will be seen later, every document drafted by a student is reviewed and approved by a lawyer before it is sent. (f) trial and hearing preparation prior to a trial or hearing, we have what we call the 45-20-5 rule. a student is required to meet with the supervising lawyer on at least three occasions, 45 days, 20 days, and 5 days before the trial. the initial meeting at 45 days is intended to outline what has to be completed for trial preparation. has all disclosure been given or received? if we are the plaintiff, what is the cause of action? what do we have to prove, and how do we prove it? do we have witness statements? do pleadings need to be amended? at this point we have the student start putting together their “trial book.” the trial book will consist of the following: · pleadings · research memo · index of exhibits · witness statements/contact information · opening · direct and cross-examination questions · closing · chronology of the case (optional) during the next few weeks, students are to identify the documents to be introduced as exhibits, draft their questions for the witnesses, and draft their openings and closings. this is also the best time to make a formal offer to settle a civil case if one has not yet been made. in canada, the opposing party is usually ordered to pay additional legal costs if, after judgment is rendered, the successful party does better than its offer. at the 20 day meeting, the lawyer will review the drafts and the document list, and make suggestions for revision. students will be told to arrange preparation meetings with their clients and any witnesses, and put together their document brief and their case brief. at the 5-day meeting, the lawyer and caseworker will review the document brief. the brief is a bound volume with numbered tabs for each document. normally the entire brief is introduced at trial as exhibit 1, thus making the introduction of numerous exhibits unnecessary. we will cooperate if the opposing party wishes to do the same. similarly, the case brief contains any statutes or cases to be relied upon in final argument. they are bound with numbered tabs, and the relevant portions highlighted for the judge. at this point, final meetings with the client to review questions are arranged. students are encouraged to attend at the court or tribunal with their colleagues on other cases so they know their way around and know what to expect. (g) ethics and professional responsibility ethics and professional responsibility issues arise regularly. to take two simple examples, can we call a client and leave a message on his/her home phone? how do we deal with self-represented litigants? the basics of ethics and professional liability are discussed during training at the beginning of the term. during duty hours, and during individual meetings with lawyers, students take part in discussions about issues that arise in our clinic. (h) debriefing and next steps following the trial/hearing, the supervising lawyer will meet with the student to discuss what happened. what went right? what went wrong, and why? how could the student be better prepared? was the theory of the case accurate? could the client have been better prepared for their evidence? we will also discuss any next steps. if we were successful, we discuss the process for collecting on a judgment. we also discuss the contents of the written report to the client. (i) how do we track what students are doing? as part of our responsibilities to our clients, clinic lawyers must ensure that the students are working on the files in a timely way and following instructions from the lawyer, and ensure that students are following clinic policies and procedures. how can a clinic do that with dozens of students working on files at any given time? the key is to have multiple methods of tracking at various points in the course of a term that lawyers can check regularly to ensure your students are doing quality work. below are the methods we use. 1. supervising lawyers review all incoming and outgoing documents. any incoming document is initialled by the lawyer to signify it has been seen. the document is then scanned and the electronic copy is stored on time matters so it can been seen at any time from the lawyers’ desk. the original is placed by the student in the file. outgoing documents such as correspondence and pleadings are submitted by the student to the supervising lawyer. the lawyer reviews it online, attaches a macro showing it has been approved, and the document then goes to staff for printing. 2. weekly file progress reports are reviewed by the lawyer supervising the file. each student must submit a weekly report with a few sentences showing what has happened in the past week, and plans to push the file forward in the coming week. if it appears that a file is stalled, the lawyer can review the student’s dockets, and contact the student if necessary. 3. students must docket their time as they would in a law firm. supervising lawyers can review the dockets for a particular file from their desk. in addition, i receive a monthly report from staff on the total hours docketed by each student. there is no particular docketing goal, as the activity on any given file may be different. if any students have unusually low docketing hours, we will investigate. 4. duty hours. students are required to attend one duty hour per week in the clinic. attending are students, a supervising lawyer, some first year law students who are observers, and occasionally a member of the faculty. during the hour, some students will take part in an intake interview with a new client, while the remaining students discuss issues with one of their files. all students are expected to take part in the discussions. this provides an opportunity to give supervising lawyers some time to deal with file issues. 5. regular meetings with supervising lawyers. students are expected to arrange a meeting with a supervising lawyer when an issue arises that they cannot resolve on their own. 6. use of technology. having network access along with a legal database application is essential for supervision. while we use time matters by lexis nexis, there are many other applications available, such as pc law, amicus attorney, clio, and others. clio is a cloud-based application. many applications are provided free to student clinics. 7. student supervisors. during each summer, we hire 10-12 students to handle all of our cases. during the academic year, these students become “supervisors.” their role is to run a duty hour as well as act as a resource for their fellow students on questions about policies and procedures. they do not have a role in supervising the file work (which is the responsibility of the lawyer) but can let a lawyer know if a student is experiencing any problems. 8. clinic staff meetings. our lawyers and staff meet monthly, and discuss any problems with students following clinic policies and procedures. 9. future court appearances are documented. if a court case is adjourned to another day (which is common for our criminal files), the student must fill out a form with the new date, which is added to the calendars of the student and the supervising lawyer. 10. using a “bring forward” (bf) or tickler system. we enter limitation periods in our calendar system as soon as a file is opened. students are urged to use time matters as a tickler system to track upcoming deadlines for individual files. this skill is essential to future success in private practice. 4. classroom components (a) what we want students to learn in the classroom classroom time consists mainly of lectures followed by simulation exercises and discussions of professional responsibility problems. the lectures provide the theory or principles of the skills taught, which are then reinforced by the simulations and even more so in their file work. (b) lecture topics our lecture topics include the following: · values and expectations · resolving professional responsibility issues · client interviews and counselling · research and writing · theory of the case · negotiation plans · pleadings · trial books · direct and cross-examination · openings and closings (c) simulations during the course we have a number of simulations, all based on a fact situation appropriate for small claims court. students take part in a client interview, a negotiation, and a full trial. actors portray the witnesses, and the students’ performances are assessed by members of the private bar. we use rubrics to provide a common basis for the assessments. simulations comprise 40% of the final grade. (d) ethical problems during the course we provide the students with four ethical or professional responsibility problems. for example, what if the opposing lawyer appears to have a drinking problem? what if your client urges you to contact the other party directly? what constitutes a conflict of interest? these problems are discussed during class, and students are expected to refer to the rules of professional conduct in providing their answers. (e) access to justice a constant theme during lectures or duty hours is access to justice. we want our students to understand the importance of the justice system to a healthy democracy, and to see the obstacles encountered by low income canadians. while the amounts involved are often low, their importance to our clients is huge. for example, if a client is ordered evicted by the landlord and tenant board, he/she could end up homeless. what is the impact on his/her children? what if the client suffers from mental illness? we try to impart understanding of the impact of the justice system on our clients in the hope our students will carry this concern with them throughout their careers. 5. resources for students (a) online materials the following materials are provided online for our students: · interview model · legal research model · opinion letter model · negotiation model · sample negotiation plan · sample video interview · professionalism/ethics case studies · powerpoints for lectures · trial simulation video · caseworker manual · fact situation documents, including pleadings, research memo, witness statements (b) (c) caseworker manual perhaps the most important resource for our students is our caseworker manual. it provides significant detail on how to handle a file in each area of law, as well as general information on our policies and procedures. students are asked to consult the caseworker manual first before coming to see a lawyer with a question. (d) policies and procedures our extensive policies and procedures are available on our network to all students. their topics include file management, service of documents, rules for meeting with clients, and expense claims. 6. conclusion the supervision system at community legal services has proven very effective over the years. the supervision strategies allow lawyers to provide the guidance and learning students need to represent real life clients. our tracking system ensures that students are fulfilling their responsibilities and clients are protected. our classroom component gives students the theory and principles of the skills they are learning, while out online resources set out skill models, fact situations, and our caseworker manual. students are often able to settle cases, but if we go to trial, we win more often than we lose. having a brief weekly progress report ensures that the students are accountable for moving a file along. we are able to check student dockets for any given file at any given time. every incoming and outgoing document is reviewed by a lawyer. in other words, our lawyers know their files and are giving our students the guidance and supervision they need. this is a win-win for our clients and our students. our clients, who had nowhere to turn for help, receive top quality legal services. for our students, they learn the best practices for their future legal careers. we regularly receive feedback from our graduates, who usually work at small to medium size firms. many of them tell us that their clinical experience was the best part of law school, or how much their clinical experience helped their career. here is a note from a western law graduate who sent me an email not long ago: today i am starting my new job as a litigator… in my hometown… and i just wanted to thank you for the experience i had at community legal services. taking [clinical courses] was by far the best experience i had at western, and not only helped prepare me for my articling and legal practice as a litigator, but significantly helped me get this position. i really appreciate the experience and opportunity i had with you, and will always look back fondly on my time at cls, which will always be an important part of my career development. my colleagues gemma smyth and marion overholt said it best about what it means to supervise students in the clinical setting: supervising law students is an opportunity to mentor them, helping identify skills, abilities, and values that may not have previously been identified, nurtured, or valued. students come to law school with incredible personal and professional experiences, which contribute to and advance the mutual learning experience. supervision in this context can be immensely gratifying, particularly when supervisors are able to participate in the development of the next generation of social activist lawyers.[footnoteref:6] [6: gemma smyth and marion overholt, “framing supervisory relationships in clinical law: the role of critical pedagogy” (2014) 23 journal of law and social policy 62 at 70.] reviewed article – teaching and learning in clinic evolving jurisprudence in clinical legal education – a contemporary study in theory and practice kwame akuffo, university of west london, uk* tell me, and i will forget. show me, and i may remember. involve me, and i will understand. – confucius, circa 450 bc[footnoteref:1] [1: *kwame akuffo is associate professor in the school of law and criminology at the university of west london. the author cannot be completely sure of the provenance of this famous adage widely attributed to confucius. however, a slightly different rendition is quoted in a student guide to clinical legal education and pro bono, k. kerrigan and v. murray (editors), palgrave macmillan (2011) p. 5 – “i hear and i forget. i see and i remember. i do and i understand.”] 1. introduction in concept and practice, clinical legal education is widely affirmed by its global success.[footnoteref:2] as r.j. wilson puts it, clinical legal education is an “…ongoing and growing revolution that is assaulting the deepest traditions of the legal academy.”[footnoteref:3] it is also asserted by others that “the trend across the globe has shifted from traditional legal education to justice education which is inspired by justice education campaigns.”[footnoteref:4] this success is however marked by the absence of a coherent and articulate jurisprudence that unifies the essence of clinical legal education. this may be largely due to the sheer diversity of forms, conceptualisations and justifications of what has become a movement in recent decades. this globalised movement presents as a complexity of diverse thinking and practice.[footnoteref:5] nevertheless, upon careful examination, it becomes evident that there are many unifying strands of thinking underpinning clinical legal education that make it possible to theorise clinical legal education whether as pedagogy or legal philosophy. the ambition of this article therefore is to seek to give jurisprudential expression to clinical legal education as an articulate but integral category of legal philosophy. the author will draw on a unique clinical project based in the london borough of ealing that has successfully partnered the local law school and the principal human rights and equalities body in the borough to create the community advice programme (cap) as a substantial expression of the essence of clinical legal education in a modern globalised world. the essay will firstly offer a brief contemporary contextual framework of analysis which reveals a significant level of intersectionality in many parts of the world between clinical legal education and practice and other social, economic, political and cultural developments that challenge traditional models of clinical legal education.[footnoteref:6] the article will then examine clinical legal education in theory and practice and conclude with reflections on an evolving clinical jurisprudence. in undertaking this task, it is important to acknowledge at the outset the particularity of clinical experience as conditioned by the realities of its environment and the objective character of the society even within certain shared global realities. thus, the global reader is encouraged to accommodate diverse experience of clinical practice in the developing world for example, where poverty and conflict are the necessary backdrop for most clinicians and where clinical legal education is unlikely to be about simply improving legal skills training. thus, an inner city experience in west london, for example, defined as it is by the comingling of migration and refugee issues, poverty and affluence and significant established minority communities, is confronted by issues relating to community cohesion and integration, extremist ideology and violence, hate and honour crimes, etc., that are not present elsewhere.[footnoteref:7] [2: see generally f. bloch, ‘access to justice and the global clinical movement’ (2008) wash ujl & policy. also, f. bloch, (ed.) the global clinical movement: educating lawyers for social justice, oup (2011) see also, however, it is also the case that this success is not complete, given the tenacity of entrenched nature of traditional law teaching and learning methods in many law schools where the clinical legal practitioner is the exception.] [3: r.j. wilson, the global evolution of clinical legal education: more than method, cambridge univ. press (2018) p.1] [4: o.s. adelakun-odewale, ‘role of clinical legal education in social justice in nigeria’ in asian journal of clinical legal education 5 (1) 88-98 (2017) p.88] [5: for a comprehensive study of diverse global experiences of clinical legal education see r. j. wilson, op. cit. part ii, p. 154] [6: see generally, s. gurpur & r. rautdesai, revisiting legal education for human development: best practices in south asia, 157 procedia soc. behav. sci. pp. 254 and 255 (2014).] [7: see the following sample of london borough profiles:] 2. the context contemporary global developments have had severe impacts on social cohesion in the modern diverse european state.[footnoteref:8] community cohesion and integration have been strained by extremist violence, ideology and reactions to these.[footnoteref:9] profound social, economic and political consequences have convulsed much of europe in recent times, including the referendum decision on june 23rd 2016 by the united kingdom to leave the european union and the terrorist suicide bombing at a pop concert for mainly children and young people that killed 22 people on 22nd may 2017 in manchester, as well as other equally dastardly acts of extremist violence across europe.[footnoteref:10] these developments are themselves linked to the broader global turbulence and civil strife in parts of the middle east, north africa and asia[footnoteref:11]. in turn, there has also been a blowback expressed by the general anti-migration/refugee sentiment across europe and consequent political shift to the right. clinical legal practice in many places finds itself, perhaps unexpectedly, at the heart of the legal and social consequences of these developments in many european practices[footnoteref:12] especially in areas such as immigration, its backlash and hate crime, in addition to the traditional challenge of identifying unmet legal need and supporting rights and social provision for some of the most vulnerable individuals and marginalised communities through student practice.[footnoteref:13] in this role, it is contended that the law clinic has become, objectively, politicised and is making a significant but largely unarticulated contribution to the evolving jurisprudence of clinical legal education against the backdrop of the consequential effects on rights and citizenship of the troubles indicated above.[footnoteref:14] this essay seeks to explore the central role that clinical legal education and practice have assumed in some communities in dealing with community legal need in the context of the united kingdom government’s policy of austerity that includes the drastic reduction in resources for the provision of legal services and access to justice[footnoteref:15], in addition to their educational impacts. clinical legal education as a socio-educational response to extant reality cannot, by definition, be politically neutral as clinical programmes are designed and therefore purposeful beyond skills training. thus, as brayne et al point out in the american context, “the take-off point for the us clinical movement was the anti-poverty and civil rights campaigns of the early 1960s…(and observe of contemporary times that)…many us clinics have taken up a welfare brief serving the needs of the local minority groups and the indigent population.”[footnoteref:16] indeed, according to jon dubin, clinical legal education promotes the essentials of social justice primarily in three ways: 1. by promoting access to justice for the underprivileged through representing them in various forums; 2. by exposing law students to the responsibility for public service or pro bono work; and 3. by creating an understanding of the relationship between law and social justice among the law students.[footnoteref:17] “all three ways have some effect on the learning of a law student about social justice values because the unique experience that is gained cannot be properly explained by the student’s prior understanding of law and legal procedure.41 the student is required to properly follow up on a process that can help him to think critically beyond any beliefs, values and norms.”[footnoteref:18] [8: europe has experienced an unprecedented refugee crisis originating from wars, political repression and poverty mainly in north africa and the middle east. this crisis has had a profound impact on europe. see a bbc analysis at http://www.bbc.co.uk/news/world-europe-34131911 see also, a social cohesion impact of the refugee influx to germany in recent years by usaid titled: ‘refugees – germany: a quest for social cohesion’ , https://eccnetwork.net/refugees-germany-quest-social-cohesion/ ] [9: see, for example, the european union agency for fundamental rights (fra) fact sheet on the rise in hate crime incidents in europe: https://fra.europa.eu/sites/default/files/fra-factsheet ] [10: such as the latest mass attack on london bridge by a rampaging van and indiscriminate stabbings on 3rd june 2017 in which, at the time of writing, 8 people had been killed.] [11: for example, the influx of over 1 million mainly syrian refugees into germany between 2015 and 2016 is now acknowledged to be the main reason for the loss of chancellor angela merkle’s once dominant political status in the german parliamentary election of 2018. see abc news at http://www.abc.net.au/news/2018-03-14/angela-merkel-elected-for-fourth-term-as-german-chancellor/9548896 ] [12: ealing equality council, now west london equality centre (and partner of cap) has recently received significant funding from the uk lottery fund to undertake hate crime prevention work. the project is recruiting 30 students per year on cap/eec placement to participate in the delivery of the project which involves working with and advising victims of hate crime. this is an example of the experience of intersectionality that this particular clinical legal education project is connected to. ] [13: in the london borough of ealing where cap is based, socio-economic inequality is so stark that the borough has been branded as a ‘poverty hotspot’ by the uk-based new policy institute in a report of a study a few years ago: https://www.getwestlondon.co.uk/incoming/ealing-one-worst-boroughs-poverty-10524563 ] [14: these matters will be illustrated by some examples from the work of cap later in this article.] [15: see generally, chapter 15, quinn and elliot, english legal system, pearson (2017) p.306. also, access to justice act 1993.] [16: h. brayne, n. duncan and r. grimes, clinical legal education: active learning in your law school, blackstone press (1998) pp.10-11] [17: see jon c. dubin, clinical design for social justice imperatives 51 s.m.u. l. rev. 1461, 1476 (1997–98).] [18: lasky and sarker, asian journal of clinical legal education 5(1) 76-87, (2017) p 80] the article exposes the work of a unique collaborative clinical project based at the university of west london and delivered through a community partnership between ealing equality council and the community advice programme in ealing. the bringing together of equality and human rights, diversity and community cohesion in the practice of the law clinic has energised and challenged clinical legal practice, the clinician, the academic and student alike, as well as local stakeholders in west london such as local authorities, the quakers and the police. this evolution at the same time, provides the opportunity for, and the basis to, found an underlying clinical jurisprudence upon. 3. clinical legal education: provenance and purpose clinical legal education as an idea, emerged as a pedagogical challenge to the teaching and learning of law in the united states reaching as far back as the 1930s, if not earlier.[footnoteref:19] according to mccrimmon et al, “an early iteration of clinical legal education was that conceptualised by the american academic and legal philosopher and jurist, jerome frank in the 1930s.”[footnoteref:20] as the authors note, although frank was not the first to agitate for change in the method of teaching law in american law schools and taking inspiration from the clinical method of medical school, he was certainly an early advocate of clinical legal education and perhaps of equal significance, he was also a leading light in the american legal realist philosophical movement.[footnoteref:21] implicit in the contribution of frank therefore lies an unexpressed realist jurisprudence which, it is submitted, contradicts the usual presentation of clinical legal education simply as methodology or legal service provision. the research evidence shows that there was a revolutionary impetus through the 1960s that saw the “establishment of law clinics in a number of law schools.”[footnoteref:22] these early clinics “…focused on legal service delivery, usually to disadvantaged members of the community.”[footnoteref:23] it is also suggested that the objective of law clinics at the time was not educational but community service provision (although the raison d’etre of the american law clinic appears to have altered considerably over time to embrace fundamental issues of social justice such as racial discrimination, poverty and civil rights generally. [19: for a comprehensive account see r.j. wilson, op. cit. pp. 1-8 ] [20: l. mccrimmon, r. vickers and k. parish, ‘online clinical legal education: challenging the traditional model’ in international journal of clinical legal education, 2016. see also, j. frank, “why not a clinical law school?” in 81 the univ. of pennsylvania law rev. (1933) on this early history, see also, martin, dublin and joy in journal of legal education (1974) vol. 26 p. 162. ] [21: ibid. p.35] [22: m.m. barry, j. dublin, p. joy, ‘clinical education for this millennium: the third wave’ in clinical law review 2001 vol. 7, p. 12] [23: l. mcccrimmon et al, op. cit. p. 36] as a pedagogical method, “educating students through experiential learning and by using a hands-on approach is nothing new.”[footnoteref:24] indeed, as the same authors acknowledge, “…clinical methods have long been used in the education and training of a range of students from doctors and nurses to engineers, linguists, teachers and computer programmers. at a practical level, who would want to consult a medic who had not yet met a patient or did not have practical experience to complement his or her theoretical knowledge?”[footnoteref:25] in short, experiential learning is asserted to be the most effective way to study skills-based disciplines and to demonstrate and apply requisite competencies[footnoteref:26]. as wilson describes it, clinical legal education ‘…involves law students learning law by guided practice during law school. ideally, that setting involves real cases, clients or other project-based work with client communities, usually with the poor or other marginalized populations without access to counsel.’[footnoteref:27] however, experiential learning is more than didactic learning or simply a mode of skill acquisition. as analysed by one of the leading exponents,[footnoteref:28] experiential learning engages the learner as active subject who reflects and has a measure of control over their learning. as patrick felicia puts it, it is “…learning through reflection on doing.”[footnoteref:29] [24: h. brayne, n. duncan and r. grimes, clinical legal education, blackstone press (1998) p.3] [25: ibid. ] [26: in his keynote address at the 2017 international journal of clinical legal education conference (northumbria univ. 2-5 july 2017) , professor kevin kerrigan related several examples of non-legal clinical education schemes replete at institutions throughout the us and elsewhere, from medical science projects to business school schemes (including a pet behaviour project!) also, r.j. wilson, op. cit. p.7 ‘…experience can be the most powerful teacher of all…’ ] [27: op. cit. p.1] [28: see generally, d. a. kolb, experiential learning: experience as the source of learning and development, prentice hall, (1984) p. 8] [29: handbook of research on improving learning and motivation, igi global (2011) p.1003] reflection is thus postulated as the point of departure for clinical legal education – the point that distinguishes legal skills training of the vocational stage of legal education for entry into the legal professions in the united kingdom (where law school is an undergraduate endeavour.) clinical legal education is, as indicated earlier, not simply doing, but “learning from doing.”[footnoteref:30] further, it is suggested that even in a milieu of the increasing commodification of higher education where the law school product must justify itself in the modern market place and is therefore expressed in the contemporary jargon of ‘employability skills’, these skills are typically cast in qualitative terms which embrace the idea of the law student as a reflective subject rather than the mere possessor of a set of marketable skills. thus, even in the following two different definitions of employability skills, one detects an acknowledgment of attributes that relate to the community and the wider world which can only be achieved through reflection: [30: k. kerrigan and v. murray (editors), a student guide to clinical legal education and pro bono, palgrave macmillan (2011) p. 8. see note 13 above.] “a set of attributes, skills and knowledge that all labour market participants should possess to ensure they have the capacity of being effective in the workplace to the benefit of themselves, their employer and the wider economy”[footnoteref:31] [31: confederation of british industry and national union of students, ‘working towards your future; making the most of your time in higher education’ (may 2011) http://www.nus.org.uk/global/cbi_nus_employability%20report_may%202011.pdf ] and, “a set of achievements – skills, understanding and personal attributes – that makes graduates more likely to gain employment and be successful in their chosen occupations, which benefits themselves, the workforce, the community and the economy.” [footnoteref:32] [32: m yorke, ‘employability in higher education: what it is – what it is not.’ (learning and employability series one, esect and hea, 2006)] it is instructive also that in the particularisation of such employability skills by finch and fafinski[footnoteref:33], the elements of active engagement and reflection on the part of the subject are quite implicit: [33: e. finch and s. fafinski, employability skills for law students, oup (2014) p. 5] · self-management · team working · problem solving · application of information technology · communication · application of numeracy · business/commercial and customer awareness to these we may also add the following: · sound judgment/decision making carefully considered, it would be fair to say that in their nature, most of these skills involve reflective thinking. beyond skills acquisition, larger claims are made for clinical legal education: “it has been argued that clinical learning offers the potential to provide much more than enhanced skills – it enables a richer understanding of legal rules, legal processes, the role of the legal professional and the impact of the legal system on people and organisations.”[footnoteref:34] indeed, so fundamental is the role of reflection in clinical legal education that some authorities have felt it necessary to state that “…to count as clinical legal education, a programme must include reflection. if there is no opportunity or expectation to reflect then an activity is likely to be a valuable pro bono experience but it will not amount to clinic.”[footnoteref:35] the educational aspect of clinical legal education which is indicated here is the key to theorising clinical legal education and deserves particular emphasis because the law clinic “is the vehicle through which (the) educational process can be advanced in a way to which students readily relate and by which they are stimulated.”[footnoteref:36] the evolving jurisprudence of clinical legal education advanced by this article will be considered in the final section. [34: ibid. p 7] [35: supra, note 14] [36: h. brayne et al, op. cit. p.10] it may be useful at this point to outline the many claims that are made as the beneficial outcomes of clinical legal education. these outcomes are also the evidence of the putative global triumph of clinical legal education indicated at the beginning of this article. accordingly, kerrigan and murray[footnoteref:37] attribute the beneficial outcomes to the following: students [37: op. cit. pp. 6-9] · learn through interacting in-role as a lawyer or other participant in the legal system; · learn by reflecting on their experience; · address real or realistic legal issues. also, giddings refers to another pedagogical attribute of clinical legal education as “…a clinical continuum which relates to the degree of control exercised over the teaching setting. the emphasis on critique and reflection is a constant while control over the environment varies.”[footnoteref:38] [38: j. giddings, ‘a circle game: issues in australian legal education’ (1999) in 10 legal education rev. p.35] additionally, the global proliferation of clinical legal education may be presented as a contemporary attribute, not just as a signifier of its success. thus, it can be asserted that clinical legal education has triumphed on the world stage. this global success is, inter alia, evidenced by “the large number of transnational collaborations among clinicians from all over the world; the existence of truly global organisations such as the global alliance for justice education (gaje) which at its eighth world conference held in eskişehir, turkey in july 2015, attracted 350 delegates (most of whom were clinicians) from all regions of the world; the ever-increasing incorporation of clinical teaching methodology in law school curricula worldwide; and legal publications dedicated to fostering international clinical legal education, perhaps the most prominent being in the international journal of clinical legal education published in the united kingdom, and the book, the global clinical movement: educating lawyers for social justice edited by professor frank bloch (oup, 2011).”[footnoteref:39] [39: l. mccrimmon et al, op. cit. pp. 40-41] of course, the fact of global success in itself would not be the qualitative measure of usefulness or goodness. the political left, for example, recognise the ubiquity and entrenchment of global capitalism or globalisation but are antithetical to it because they consider the phenomenon to be inimical to global social justice. in the case of clinical legal education however, the benefits of experiential learning and the law clinic are well recognised and documented.[footnoteref:40] but perhaps the seminal distillation of what succeeds in clinical legal education is captured by the following observation: [40: see generally, brayne et al, op. cit. and kerrigan & murray, op. cit. see also, f. bloc, op. cit.] “…the study of law is of limited value unless it is directed at understanding the law which is practised, the law which affects the lives of real people. this is the hard evidence from which legal theory can be constructed and hypotheses tested. to study the theory without the evidence in that sense is unscientific. an understanding of law and an ability to apply that understanding requires the study of law in its operational context…this applies equally to those students who wish to practise law and to those who do not. law studied out of the context of practice is an artificial concept. the law clinic is a vehicle through which this educational process can be advanced in a way to which students readily relate and by which they are stimulated.”[footnoteref:41] [41: brayne et al, op. cit. p.10 ] in the final part of this section some consideration must be given to the relationship and relative perspective of the teacher clinician and the student. in this context, it is helpful to recall that one of the attributes of clinical legal education acknowledged in the earlier part of this section is the relative degree of autonomy that a successful clinical experience invests in the student as a reflective learner. equally, the teacher clinician is liberated by a different relationehip engendered by the guided independence of the clinical student. thus, it is perhaps best to characterise the new model relationship as one in which teaching and learning become a necessary partnership which is most effective if students are guided to own their own learning by motivation based on an understanding of the link between effort and outcomes. the student is not an intellectual object who receives instruction and knowledge but an active learner who reflects on information and is able to understand and evaluate such information in real or realistic context. the author as teacher-clinician has found over the years that students are best able to become critical and reflective learners if they are enabled to place the subject matter of study into appropriate context (history, economics, politics, purpose, etc.) learning in context means approaching legal principles and processes by connecting theory and practice. if law is a social institution then the student of law must be guided to adopt a critical approach to the study of law and legal processes that gives them an understanding of agency. with this approach, the student will hopefully understand that law is an instrument for the achievement of social goals. as such, the knowledge that the student derives from the experience empowers them as active social functionaries who have the capacity to affect how law works in society. equally, a teacher-clinician is a product of their own experience of matters requisite such as diversity and inequality and the values of the higher education sector[footnoteref:42] that they may subscribe to individually or institutionally such as widening participation and equality of opportunity, adopting approaches that best help diverse learning communities to achieve high quality educational outcomes, etc. (progressive modes of assessment for example.) [42: see for example, ‘higher education 2022 – priorities for government’ guildhe/30 may 2017] 4. types of law clinics and their educational value clinical legal education is expressed in a diversity of clinical projects and programmes ranging from in-house variants to externships. the most common are:[footnoteref:43] [43: see r.j. wilson, op. cit. part ii p 149. also, r. dunn, ‘the taxonomy of clinics: the realities and risks of all forms of clinical legal education’, asian journal of clinical legal education 3 (2) 174-187 (2016)] 1. in-house real-client clinics; 2. externally-located real-client clinics; 3. simulated clinics; 4. externship and placement schemes; 5. street law projects; 6. specialist clinic projects; and 7. advice/gateway clinics. regardless of the particular nature of each of these various schemes, with the possible exception of street law projects, the purposes of these clinics are relatively similar. these are said to be to expose students to law in a practice setting and to the analysis, management and process of the problems arising.[footnoteref:44] the in-house clinic involves the replication of a real solicitors practice within the law school. such clinics typically deliver a full range of legal services to the public under the supervision of a practitioner academic. this type of clinic requires the commitment of substantial resources by the law school or the broader university – premises, salaries, insurance and other running costs. some consider this type of clinic as ‘the ‘gold standard’[footnoteref:45] but there are severe limitations on the scope of service delivery because of the cost. for example, the number of clients dealt with per year would tend to be small.[footnoteref:46] in contrast to the in-house clinic, there are gateway/advice only services which provide initial advice and referral to members of the public, usually over a wide range of areas of law but sometimes limited and specific, with no continuing or retainer relationship between the client and the clinic. this type of clinic has the advantage of being cheaper to run and without most of the professional requirements of the solicitors’ regulation authority (sra), the professional body in england and wales responsible for the regulation of entry into the profession and the profession itself. simulated clinics use hypothetical cases and students role-play as legal advisers. simulated legal activity as a type of clinical legal education is dismissed by some as not being proper law clinics but it is clear that they can be a very useful vehicle to deliver clinical education or, at least, many of the benefits of clinical legal education. externships/placements and street law may not be considered to be clinical legal education activities properly so-called, although there is little doubt in their value as vehicles for experiential or work-based learning. externships are the structured placement of law students in law firms or advice or other agencies such as local authorities, or community organisations with or without pay. the obvious challenges that may limit the effectiveness of such programmes is the fact that there is no assurance of quality control or indeed anything else because of the variability of placement possibilities. street law, another american idea, involves projects in which law students are engaged with raising legal literacy and awareness in local communities or with specific interest groups. the general objective is to raise community awareness of rights or seek to bring about policy reform or change.[footnoteref:47]. for example. a project to educate a group or community about their rights against police harassment or unlawful stop-and-search in, say, brixton in south london with a high population of ethnic minority residents. such consciousness-raising undoubtedly benefits groups, usually minority or disadvantaged or indigent groups, but has clinical benefits for student and academic participants who in the process of engagement, inevitably deal with real people, the law and the community and live issues. in this regard, particular mention must be made of the way in which the global expansion of clinical legal education, so well chronicled by the significant work of r.j. wilson referred to repeatedly previously,[footnoteref:48]has accommodated regional and local nuances to produce models of clinical projects and practice that are redolent of location. the significance of the attributes of location is the subject of an informed article by lasky and sarker[footnoteref:49] on the asian characteristics of the regional clinical legal education movement which observes as follows: [44: brayne et al, op. cit. p. 12] [45: kerrigan and murray, op. cit. p. 1] [46: see, for example, york law school clinic] [47: see r. grimes, d. mcquoid-mason, e. o’brien and j. zimmer, ‘street law and social justice education’ in f. bloc (ed.) the global clinical movement: educating lawyers for social justice, op. cit. chap. 15] [48: global evolution of clinical legal education, op. cit. notes 3, 4 and 43.] [49: op. cit., note 18.] “an examination of this regional cle movement would show that it reflects its own asian characteristics. for example, one contemporary core commonality of most of these asian university-based cle programmes can be found in their focused social justice mission of delivering legal assistance and empowerment to the poor and marginalized while simultaneously developing legal knowledge, skills, ethics and pro bono values within the participating university students. a number of cle programmes, including the ateneo university human rights center (ahrc) in the philippines, 47 train students to use a participatory method of representation when working with clients. rather than utilizing a top-down approach, clients are treated as equals throughout the representation process. in this manner, the lawyer’s role is not restricted to just solving a client’s problem and delivering the answers or solutions through a one-way exchange. rather, the client is involved as a co-decision-maker. this mode of alternative lawyering enables clients to decide for themselves and find solutions to their own problematic situations based on a better understanding of the issues involved. it is a means of achieving a break in the often cycle of need. conventionally, clients meet lawyers looking to have their legal problems resolved. in these scenarios, once the immediate need is worked out, it is not unusual for these persons to return to the same environment from which they came. this frequently leads, often only a short time later, to the development of similar or identical problems. it is a type of band-aid approach to problem-solving. traditional lawyering is seen as a mechanism that ‘promotes a client dependency on the lawyer instead of encouraging legal self-reliance on the part of marginalized groups’.”[footnoteref:50] [50: ibid.] thus, in seeking to advance the thesis of this article which aims to expose the political and jurisprudential basis of clinical legal education, the different strands of clinical practice discussed above provide the hard evidence that brayne et al suggest are the basis upon which we are able to construct relevant theory. but this is only possible because clinical legal education is premised on the learner as a reflective subject as acknowledged earlier. an appreciation of the fundamental nature of this attribute is essential for an understanding of the analysis that comprises the final sections of this article. it would now be appropriate to consider the case study which is the basis of much of the evidence base for the theoretical arguments of this article advanced in the final section of this article... 5. case study – the community advice programme (cap – in partnership with the west london equality centre.) i. the project – general the school of law and criminology at the university of west london (uwl) has operated one of the most successful law clinics in the united kingdom since 1992, serving the community of west london. cap celebrates its 26th anniversary this year, 2018. the main project, called community advice programme (cap), is a legal advice and assistance service which runs in partnership with ealing equality council (eec[footnoteref:51] (now, west london equality centre), the principal equalities and human rights body in the london borough of ealing and west london generally). eec was established in 1963 as the southall international friendship association, then ealing community relations council, ealing racial equality council (quasi-statutory affiliate of the commission for racial equality), and finally, ealing equality council in 2011 (and now, west london equality centre – wlec.[footnoteref:52]) cap functions as a fortnightly weekend service from the street, at the st mary’s road campus of the university of west london, with offices located at villiers house, ealing broadway station where there are also special student/client engaged daily advice sessions. cap is serviced by volunteer legal practitioners, including solicitors, barristers, judges, trainees, law teachers, students and other legal professionals. [51: now renamed west london equality centre (wlec).] [52: the following extract from the 2017 annual report presented at its agm on 8th november 2017, is indicative of the nature of the functioning of cap’s partner organisation: “…our work targets the poor and disadvantaged and the newly-arrived. ealing ranks as the third most ethnically diverse local authority (in the uk) – migrants of more than 102 nationalities have arrived in the borough due to the refugee crisis and the referendum. we have seen many eu immigrants, newly-arrived refugees and undocumented migrants accessing the service for immigration and nationality advice.” for a profile of the london borough of ealing, see: https://www.ealing.gov.uk/info/201048/ealing_facts_and_figures ] cap assists members of the local community in west london with legal advice and other help such as drafting documents, making representations on behalf of clients to a variety of agencies or filling in forms covering areas such as employment, housing, family, discrimination, human rights, consumer, welfare, debt, crime, police and immigration law. cap also offers placement and training opportunities to law and criminology students, as well as local secondary school students and therefore makes an important contribution to student employability, career development and community engagement through clinical practice. cap does not engage in direct litigation or court proceedings although it typically advises and prepares documents for clients where referrals to solicitors or barristers are inappropriate or not possible. the close partnership with the equality centre has enabled students to gain access to placements and practical experience on a myriad of projects and activities in west london such as hate crime, homelessness, refugee projects, debt and poverty reduction. the services and projects include the following:[footnoteref:53] [53: for a comprehensive account, see director’s report and report of projects and operations officer in 2016/2017 annual report: http://ealingequalitycouncil.org.uk/wp-content/uploads/2018/01/annual-report-2016-2017-final-09.11.2017.pdf ] · the milar project, an erasmus+ refugee integration project funded by the european commission (with partner universities in italy, sweden and germany); · help through crisis a foodbank project funded by the big lottery fund with operational sites at northolt, brentford, greenford, acton, southall and hanwell (all in west london); · positive link – a uk home office strengthening communities project; and · hate crime project – a national lottery substantial project which has enabled 90 placement places to be made available to university of west london students over a period of 3 years which has only recently commenced. the range of placement activities that cap students are able to engage as indicated above perhaps has no equal in the uk in its particularity. however, this may be offered as evidence of the inter-connection between local communities and pro bono legal service provision typical of community-based law clinics. a further illustration of cap’s community intersectionality is provided by a project that was instituted in 2016. cap at uwl was a pioneering partner along with lse, ucl, queen mary, university of london (and now college of law) with the city of london criminal appeals clinic where students engaged miscarriage of justice cases to research and prepare worthy cases for submission to the criminal cases review commission[footnoteref:54], the body in the uk that reviews and presents cases of alleged miscarriage of justice in criminal matters to the court of appeal for determination. in the first season of the project, cap uwl was awarded the prize for the best performing institution in 2016. [54: http://ccrc.gov.uk/about-us/ ] ii the academic module – community legal advice one of cap’s most important functions is that it supports the university of west london law students with guaranteed placements for the ll.b clinical module, community legal advice (cla) which currently has a cohort of 42 students. this helps to overcome the significant problem clinical students experience in securing externship placements with live clients. the module is a 20-creditfinal year elective and its methodology is described as follows in the module study guide: “as a clinical legal education module, the teaching and learning method places you at the centre of the delivery of the outcomes of the module. you have ownership of your learning because you largely control your placement and its activities or at least exercise a large measure of autonomy. learning in the classroom is therefore a partnership which requires you to be an active learner who owns your learning. with this methodology, you can map with confidence, a clear path between effort and success.”[footnoteref:55] [55: community legal advice, uwl module study guide 2017/18 p.28] the module requires students to be in placement with law firms, community advice organisations, etc., for at least the duration of the module. students participate in scheduled classroom activities including discussion of clinical legal education and experiential learning, skills training in research methodology and electronic databases, employability, drafting, negotiation and conciliation, written and oral communication, policy issues such as legal services and access to justice, social justice ethics and law, etc. the module is assessed by the submission of a compulsory reflective journal, recording their placement activities and their reflection on these. this journal is submitted along with the student’s placement report at the end of the module. the report is a critical account of, and reflection upon, their placement activities and their personal journey of development as a student clinician in the community. student reflections often chronicle transformation and epiphany. the following excerpts from two student reports in 2018 are illustrative: “by studying cla i became acutely aware of the importance of access to justice. the public rely on services such as crb and cap to give free advice to the public who do not have the funds to hire a solicitor to take on their cases. the cut backs that are made in legal aid have forced individuals to self-help or rely on agencies to give them advice is so large. this is morally and ethically wrong as this effects the great number of the public who have no funds available for a solicitor or to pay court fees. every individual should be entitled to a fair justice system not just the high paid citizens, the justice system has failed to help the lower class citizens who suffer the most, i have seen this first hand by interviewing clients at cap many of the problems are caused my debt and arrears, these clients would never be able to afford a solicitor and pay the high fees. relying on services like cap benefits the community a great deal on providing advice and writing letters on behalf of the clients. the government are aware that these agencies are run by volunteers who offer their time and advice to help people but do not fund these agencies, considering we play an active role in helping the public. i did not know the extent of access to justice and how important it is until studying this module, i have developed a good understanding of this area and continue to do so in my legal profession.” “during my reflective learning journey, i expressed large amounts of empathy and compassion and felt responsibility and purpose in a different form. i had challenged my own opinions on humanity and coming to find myself more intrigued and supportive of a communist regime in western society or perhaps globally.” thus, it may be concluded that the student clinicians have the opportunity to become socially conscious practitioners whose experience of the practical legal world intersects the lives of the communities that they serve. in addition, one of the most significant developments at cap over the past two years, has been the successful submission by four trainee solicitors on the work-based “equivalent means” route[footnoteref:56] through their work at cap. upon completion of the law degree and the required vocational course, the legal practice course, a prospective solicitor in england and wales must obtain a training contract with a law firm and serve their solicitor’s apprenticeship for two years before formal admission to the role of registered solicitors. training contracts are notoriously limited in number, especially after the financial crash of 2008 and subsequent regulatory changes by the solicitors regulation authority (sra) that led to many medium and small size high street practices folding. the recognition by the sra of the appropriateness of cap work and supervision is an important step in overcoming the age-old barrier students from diverse backgrounds and newer universities have when they try to enter the legal profession upon completion of the academic and vocational stages of their legal education. [56: https://www.sra.org.uk/searchresult.aspx?q=alternative+to+training+contract ] arguably, the most significant aspect of the cap/wlec project is the community and institutional networking that is made possible as well as the incidence of real community engagement across different issues and at different levels by clinicians. it is the usual practice for cap sessions on saturdays to end in seminars and lectures given by experts on key socio-legal issues such as immigration, hate crime, islamophobia, terrorism, refugees, food banks and poverty alleviation, debt prevention, social security, family, human rights and brexit. all these matters have been covered over the past two years by cap/eec. thus, there is a deeply enriching experience of intersectionality and community engagement within which the teacher and student-clinician interpret the law and enables the theorising of clinical legal education. 6. constructing an underlying jurisprudence what emerges from the cap/wlec project is the practical evidence of a particular model of clinical legal education acknowledged for its success in legal service provision for the local community and clinical development of student participants for over 25 years. it may also be useful to observe the striking commonality of the cap experience of interconnection with the issues of poverty and social disadvantage with experience elsewhere[footnoteref:57] consistent with the earliest social justice mission at the root of the vision of the realist founders of the idea of clinical legal education. on this basis, it is appropriate now to attempt to identify a unifying philosophical basis for clinical legal education in contemporary times. [57: see for example, tatyana khudoykina and vlalena lysenko, ‘development of clinical legal studies as an essential component in the modernization of legal education’ in integraciâ obrazovaniâ (mordovia state university) 2017;21(1):124-137. also hannemann and lampe, ‘clinical legal education — observing, comparing and analyzing the differences in germany and china for each other’s respective advantages’, asian journal of legal education vol. 2, issue 2 (2015) p 157-169. see also more generally r.j. wilson, op. cit. note 5.] i. philosophical context “a spider conducts operations resembling those of a weaver, and a bee puts to shame many an architect in the construction of her cells. but what distinguishes the worst architect from the best bees is this, that the architect raises the structure in imagination before he creates it in reality.”[footnoteref:58] [58: k. marx, capital vol. 1, progress pub. p. 174] the centrality of reflection in clinical legal education emphasised throughout this article means that any theory of clinical legal education must recognise the conscious choices that clinical programmes are based upon even if their philosophical underpinnings are not given specific expression. thus, as human architects (human agency in other words) we first raise structures in imagination. philosophy enables us to do this in a conscious way and therefore we are able to assert that clinical legal education, by definition, has a philosophical basis and that this requires expression. what follows is therefore an attempt to explore an appropriate theory of clinical legal education. philosophy as an epistemological category, represents the capacity of human beings to conceptualise and reflect their world. philosophy therefore represents the sum total of our world view and enables us to develop an integrated idea or conception of the phenomena of our world and thereby helping us to order our everyday activities and behaviour. but more than constructing our world outlook, philosophy provides us with a method of cognition. in this sense, philosophy is pervasive and integral to intellectual activity. thus, as recognised earlier in this article, out of clinical practice emerges the “hard evidence” that enables us to build a theory of clinical legal education.[footnoteref:59] [59: see preceding case study above (section 5)] it was suggested at the beginning[footnoteref:60] of this article that, to a large extent, clinical legal education lacks an articulate and coherent jurisprudence. however, this state of affairs even in contemporary times is somewhat at odds with the early promise offered by the critics of the standard teaching model of american law schools and some of the originators of the idea of clinical legal education such as frank[footnoteref:61] and llewelyn[footnoteref:62] in the 1930s who were firmly rooted in legal realism. also, as brayne et al point out, well after the entrenchment of clinical legal education, “…the critical legal studies advocate, the feminist jurist and those supporting a law in context approach have all found the narrow doctrinal system (of law teaching) wanting…(because) it does not take into account the realities of law in practice, the economic and political context in which law is made and operates.”[footnoteref:63] these antagonists are also united by the fact of their assumed different legal philosophical positions. the point here is this: there is a clear connection between clinical legal education and jurisprudence – those who depart from the standard operating model of teaching and learning law are marked by an ideological, political or philosophical departure from the standard position. for this reason, clinical legal education is neither politically or jurisprudentially neutral. this is a matter which is illuminated by the globalisation of clinical legal education and the enhanced contemporary focus (in tandem with legal skills training and experiential learning) on a social justice objective advanced as a contribution to enabling disadvantaged group’s access to justice. of course, any deep analysis of the global problem of access to justice for the poor and the disadvantaged immediately confronts the more fundamental problem of all societies – social and economic inequality. [60: see ‘introduction’ supra p. ] [61: j. frank, supra note 20] [62: k. llewelyn, ‘some realism about realism (1931) harv l rev 1222] [63: op. cit. p. 5. the authors support their observation with the following references: g. peller, ‘the metaphysics of american law’ (1985) calif. law rev 1151; and a. seales, ‘the emergence of a feminist jurisprudence: an essay (198) 95 yale l rev 1373] ii. clinical legal education and social inequality we saw in section 5 above that the existence of law clinics such as the community advice programme (cap), is justified not only by their legal skills and experiential learning aspects but also as service provision for unmet public need. unmet legal service need is a huge global problem as acute in most advanced economies as it is in developing societies,[footnoteref:64] with equally devastating consequences for hundreds of millions of people who are unable to vindicate their rights. in turn, unmet legal need is a reflection and consequence of socio-economic status and inequality. thus, in a real sense, contemporary clinical legal education is inextricably connected to socio-economic inequality and the battle cry of “access to justice” is not simply intended to indicate the closing of the gap in communities between those who have access to the law, but also signifies a more profound social justice mission. the problem though is that most of the analyses of clinical legal education traditionally fail to cast law clinics in such terms – terms that are much more readily understood as a political or philosophical positioning. this failure creates the danger of neutering or masking the power of dynamic activism that is an integral part of the reflective process of clinical legal education. an illustration is provided by the following description of the law clinic by evans: a clinic involves “…supervised experiential encounters between clients and their legal advisors, in the interest of just case outcomes, the processes of law reform and political renewal.”[footnoteref:65] this otherwise embracive and progressive description would have been better encapsulated by an explicit declaration of a social justice objective – for such is the clear underlying purpose expressed by evans. [64: see for example, y. ouma and e. chege, “law clinics and access to justice in kenya: bridging the legal divide”, ijcle vol. 23, no. 5 (2016) p.107] [65: a. evans, “global agendas, cultural capital, and self-assessment of clinical legal education programs” (2012) 38 monash u l rev 55 at 59. see also r wilson, “training for justice: the global reach of clinical legal education” (2004) 22 penn st int. l rev 421 at 422-423.] one may then ask why it matters that clinical legal education is given jurisprudential expression? the answer relates to the matter of social consciousness, or even a narrower legal consciousness that is essential for an active reflective role for the student and clinician alike, such consciousness being prerequisite for desirable social change. a conscious student or clinician is an agent for social change. social change is necessary to redress the problem of social inequality which is deeply embedded in international society; not only within the familiar northsouth divide, but marked inequalities within both the north and the south, and also as between genders, ethnicity, religion, etc. if we accept the globalised reach of clinical legal education carries with it a concomitant social justice mission, then a proper understanding of the philosophical underpinning of the movement is best achieved by also understanding the globalised nature of poverty and social inequality. on this basis, it is submitted that a unified theory of clinical legal education must encompass global socio-economic realities as indicated below; the student clinician and teacher practitioner operate within the much broader spectrum of income and wealth inequalities as indicated by the following vignettes: “more than 1 billion people in the world live on less than $1 a day;”[footnoteref:66] [66: ‘introduction to povcalnet’, http://iresearch.worldbank.org/povcalnet/introduction.aspx ; see statistical data breakdown by region and country at http://iresearch.worldbank.org/povcalnet/data.aspx ] “pre-davos report shows how 1% now own more than the rest of us combined. runaway inequality has created a world where 62 people own as much as the poorest half of the world's population, according to an oxfam report published today ahead of the annual gathering of the world's financial and political elites in davos. this number has fallen dramatically from 388 as recently as 2010 and 80 last year. an economy for the 1%, shows that the wealth of the poorest half of the world's population that's 3.6 billion people has fallen by a trillion dollars since 2010. this 38 per cent drop has occurred despite the global population increasing by around 400 million people during that period. meanwhile the wealth of the richest 62 has increased by more than half a trillion dollars to $1.76tr. just nine of the '62' are women.”[footnoteref:67] [67: oxfam press release, 18th jan. 2016 http://www.oxfam.org.uk/media-centre/press-releases/2016/01/62-people-own-same-as-half-world-says-oxfam-inequality-report-davos-world-economic-forum ] africa, for example, is a continent hardly contradicted by mass social and economic progress. riven with mass poverty, hunger, disease, corruption, political instability and internecine warfare in many parts, the continent has been ravaged by over two centuries of structural underdevelopment, the evidence of poverty and deprivation is as clear as it is grim: the un food and agriculture organisation estimates that 239 million people in sub-saharan africa were hungry/undernourished in 2010 (its most recent estimate) and 925 million people were hungry worldwide. africa was the continent with the second largest number of hungry people, as asia and the pacific had 578 million, principally due to the much larger population of asia when compared to sub-saharan africa. sub-saharan africa actually had the largest proportion of its population undernourished, an estimated 30 per cent in 2010, compared to 16 per cent in asia and the pacific (fao 2010). thus almost one in three people who live in sub-saharan africa were hungry, far higher than any other region of the world, with the exception of south asia in 2008, 47 per cent of the population of sub-saharan africa lived on $1.25 a day or less. (united nations 2012) in the meantime, the world’s most expensive car has a price tag of $4.8 million[footnoteref:68]; the most expensive painting sold at auction, leonardo da vinci’s salvatore mundi, at a price of $400 million[footnoteref:69]and in the united kingdom, according to the guardian, within the first three days of january 2018, the top business executives in the uk had earned the equivalent annual salary of the average worker.[footnoteref:70] to top it all in the absurdity of inequality, the bbc reported on 5th january 2018, the theft from a bar in denmark of the most expensive bottle of vodka in the world claimed to be valued at $1.3 million.[footnoteref:71] [68: see https://www.digitaltrends.com/cars/most-expensive-cars-in-the-world/ ] [69: see https://www.theguardian.com/artanddesign/2017/nov/16/salvator-mundi-leonardo-da-vinci-most-expensive-painting-ever-sold-auction ] [70: https://www.theguardian.com/business/2018/jan/04/fat-cat-thursday-top-bosses-earn-workers-annual-salary-by-lunchtime ] [71: http://www.bbc.co.uk/news/world-europe-42558331 ] poverty and social inequality divide classes and communities in the united kingdom. in the biggest ever review into race inequality in great britain, the equality and human rights commission in its 2016 race equality report[footnoteref:72] reveals “…an alarming picture of the challenges to equality of opportunity that still remain in modern 21st century britain…it is indefensible that…black workers with degrees earn over 23 per cent less on average than white workers with degrees and that if you are black in england you are more than three times likely to be a victim of murder and four times more likely to be stopped by the police. ”[footnoteref:73] equally grimly, the report found that “if you are young and from an ethnic minority, your life chances have got much worse over the past five years and are at the most challenging for generations. since 2010, there has been a 49% increase in the number of 16 to 24 year olds across the uk from ethnic minority communities who are long-term unemployed, compared with a fall of 2% if you are white. black workers are also more than twice as likely to be in insecure forms of employment such as temporary contracts or working for an agency – which increased by nearly 40% for black and asian workers, compared with a 16% rise for white workers.[footnoteref:74] also, ethnic minority people are more likely to live in poverty than the white population.[footnoteref:75] the same report details adverse statistics for gypsy and traveller communities and regional inequalities between different parts of the united kingdom. [72: “healing a divided britain: the need for a comprehensive race equality strategy”, ehrc report august 2016: https://www.equalityhumanrights.com/en/race-report-healing-divided-britain ] [73: ‘forward’ by david isaac cbe, chair, ehrc, ibid p.5] [74: ibid. ] [75: ibid. p.31] in the field of health and wellbeing, there are again striking inequalities for different classes worldwide and in the uk. according to united nations research statistics, average life expectancy in the highest developed economies is 80 years and 59 years in the lowest developed.[footnoteref:76] thus, the global clinic is inextricably linked to global inequality. it is therefore necessary to examine the issues of access to justice and social justice more broadly. [76: http://www.un.org/en/development/desa/policy/cdp/cdp_statements/cdp_plen09_gph.pdf ] 7. clinical legal education as an expression of social justice i. access to justice “the concept of access to justice has various connotations. in common parlance, it simply refers to the accessibility or otherwise of adjudicatory forums where individuals can have disputes between them resolved. at a more technical level, access to justice has many conceptions. it may refer to the ease with which participants in the various adjudication forums are able to understand both the substantive and procedural aspects of the law applied in resolving their disputes. access to justice may also refer to the extent to which disputants can afford the costs involved in having their disputes resolved at various adjudication forums.”[footnoteref:77] [77: y. ouma and e. chege, ‘law clinics and access to justice – bridging the legal divide’, ijcle vol. 25 no. 5 (2016) pp.107-108] although the statement above conceptualises access to justice as a response to unmet legal need in various forms and thus extends beyond law clinics,[footnoteref:78] the authors also acknowledge “…law clinics in various countries in the world have continued to engage in activities aimed at the realization of the ideal of access to justice in its various conceptions.”[footnoteref:79] access to justice as an issue is therefore very well understood in the popular literature as a referent for unmet legal need[footnoteref:80] and socio-economic inequality as discussed above. in this context, it would seem quite clear that the traditional approaches to access to justice as a variety of juridical responses to unmet legal need is reflective of much of clinical practice in the wider sense but narrower and limited in philosophical or jurisprudential sense as it misses the political economy context of law and of legal process. ellie palmer captures this critical point in the opening of her excellent book, judicial review, socio-economic rights and the human rights act: “during the past three decades individuals and groups have increasingly tested the extent to which governments and public authorities can be held to account through the judicial system for delay or failure to provide access to welfare services such as health treatment, education and housing. however, in the absence maladministration or flagrant breaches of public law duties, there is deep-routed scepticism about the potential for courts to make effective and constitutionally appropriate contributions to the resolution of such disputes. these doubts are not only based on widespread perceptions that courts are constitutionally and institutionally ill-suited to adjudicating in politically sensitive disputes involving issues of resource allocation, but also closely related to a prevailing understanding in western style democracies that, by contrast with civil and political rights, socio-economic rights whether enshrined international, regional or domestic instruments – are ideological aspirations or programmatic goals, dependent on resources for the satisfaction, and therefore inherently unsuited to the mechanisms and techniques developed by courts for the protection of fundamental human rights.”[footnoteref:81] given this contextual reality (rather redolent of the legal realism of the clinical legal education founders of the 1930s), clinical legal education, in addition to its educational role, is thus assigned a social justice function as an underlying attribute. it is therefore submitted that the jurisprudence of clinical legal education must be founded upon social justice theory. [78: for an excellent study of the subject, see generally, palmer, cornford et al (eds.), access to justice: beyond the policies and politics of austerity, hart publishing (2016)] [79: ibid.] [80: see elliot and quinn, supra, chap. 15] [81: hart publishing (2009), ‘introduction’ p.1 ] ii. the jurisprudence of clinical legal education the attribution of a social justice function to clinical legal education requires an examination of social justice or justice theory. the intuitive meaning of social justice is often expressed in simple terms as what is fair and just in the individual’s relationship to society in terms of social goods and resources and access to opportunity and personal functioning. in social theory however, the term is acknowledged to be far more complex beyond the scope of this current essay as it encompasses issues such as, taxation, social insurance, regulation of markets and the fair distribution of wealth.[footnoteref:82] the issue of social justice has, however, found jurisprudential expression in justice theory, the philosophical antipode to the entrenched western policy of utilitarianism. [82: see, for example, the following: muschert, klocke et al, agenda for social justice: solutions for 2016, policy press (2016); m.j. thompson, ‘the limits of liberalism: a republican theory of social justice’ international journal of ethics, vol. 7, no.3; p. corning, the fair society: the science of human nature and the pursuit of social justice, chicago univ. press (2011); and j.s. mill, utilitarianism, prometheus books (1987)] iii. clinical legal education and the just society according to ross, an appreciation of what is unfair develops early in the human being.[footnoteref:83]indeed for riddall, a child of five or a little older knows the meaning of unfairness or, at least, can give practical examples – “the position is similar to justice, a concept that has affinities to fairness. the absence of justice, injustice, proclaims itself.”[footnoteref:84]but what is justice?, he enquires. what is this quality, the absence of which produces such outcry?[footnoteref:85] the author offers the following comment in response to this question: “justice is a quality considered to be desirable. everyone claims to want justice, and people know what they want. the result is that in seeking to define justice, people attach the label, justice, to the ends that they desire.”[footnoteref:86] even so, there is little doubt that the quality of fairness and justice is essentially an intuitive value, measurable against the standard of treatment by the state and society. as rawls reminds us in his seminal work, a theory of justice, “justice is the first virtue of social institutions, as truth is of systems of thought. a theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust. each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override.”[footnoteref:87] although rawls’ treatise is complex, as are all other theories that have sought to analyse the matter of fairness and justice in society in modern times such as perelman, nozick, dworkin, etc., the notion of just treatment is premised on principles that recognise the equal worth and dignity of each individual, a key attribute of which has been characterised by rawls as the first fundamental principle of a just society, namely that, “each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.”[footnoteref:88]as rawls’ analysis shows, there is therefore an enhanced duty placed on the state to protect the vulnerable in society, if such people are to realise their entitlement to equality in society. the principle of equality is itself theoretical difficult, but in the context of the gross inequalities in resource allocation we saw in section 6 (ii) above, the millions of people across the globe who are the beneficiaries of clinical legal education clinics and projects are not confused about their status as unequal citizens who are immiserated by poverty, discrimination and social disadvantage. poverty is tangible and measurable, even if economists legitimately distinguish between relative and absolute poverty. thus, the ideology of utilitarianism which jeremy bentham articulated so superficially attractively, and which is the basis of modern western democratic institutions, contests the mission of clinical legal education which aims to promote the interest of the underprivileged to be enabled to vindicate their rights and to promote their equal participation in society. this is because, in essence, “utilitarianism is a goal-based theory which evaluates actions in terms of their propensity to maximise goodness, however this is defined”[footnoteref:89] in the name of the greatest good for the greatest number, even at the expense of the minority. this is not the mission of clinical legal education and a theory based on justice would readily justify the functioning of the law clinic in its myriad forms. [83: a. ross, on law and justice, univ. of california press (1959) p.269] [84: j.g. riddall, jurisprudence, butterworths (1991) p.130] [85: ibid.] [86: ibid. p.131] [87: oxford (1973) p.3] [88: ibid. pp.302, 303] [89: davies & holdcroft, jurisprudence, butterworths, (1996) p. 205. for an analysis of how rights and utility may be mediated, see n.e. simmonds, central issues in jurisprudence, sweet & maxwell, (1986) p.143 et seq. ] conclusion in pressing the importance of clinical legal education theory in this article, the primary motivation has been to encourage the reconnection of the clinician, practice and theory as an inextricable, mutually-reinforcing process that enhances learning and directly impacts legal consciousness. the increasing commodification of education generally in the united kingdom, accelerated by the recent institution of student self-funding in england and wales, seems to have led to the preference of more apparently ‘marketable’ subjects to the detriment of theoretical ones or the theoretical components of subjects. for example, legal theory or jurisprudence is much diminished in the life of the law student of the modern university in england.[footnoteref:90] legal categories, like all philosophical categories, define specific world views and as such, guide human action. a conscious clinician is motivated and justified by an awareness of his or her actions or inaction and their place in the broader society as a stakeholder in society’s general wellbeing. in short, they become a socially conscious being possessing agency. [90: as an illustration, jurisprudence as a subject was a core module for law students at the author’s institution until the 1990s. today, neither legal theory nor jurisprudence is on offer on the law curriculum either at undergraduate or postgraduate levels.] 86 reviewed article 33 diamond's are a girl's best friend... and a great data collection tool! rachel dunn1 abstract this article explores an innovative and visual data collection tool: the diamond. the diamond allows for participants to rank specified items or statements and place them onto a diamond shape. it can measure various descriptors, such as importance, with the most important item at the top and the least at the bottom. this allows for the researcher to see the overarching relationships between the different items of statements. participants are asked to discuss the reasoning behind the placements, which provides a qualitative element to a quantitative data set. this article is intended to be a practical guide as how to use the diamond and analyse the results, discussing the practicalities of it and other potential uses. the examples used throughout are from researched which used the diamond, namely in clinical legal education and youth justice studies. key words research methods, visual methods, diamond ranking, clinical legal education, youth justice 1 rachel dunn is a senior lecturer in the school of law at northumbria university, united kingdom. reviewed article 34 introduction it has been established in the literature regarding clinical legal education that there is a lack of empirical research and evidence into our pedagogy.2 further, it has been noted that the ‘quality of reliable statistical data was low to non-existent,’ along with ‘large gaps in the literature.’3 one possible explanation of this is legal educators are not often trained in empirical research methods, since legal education, and traditionally law generally, emphasise doctrinal research. further, those who teach in law clinics may not be given appropriate time, resources and training in how to collect, analyse and report on findings.4 this article will outline a very useful data collection tool, called diamond ranking. this tool was originally designed and used in primary education research5, though one of the earliest reports of it being used was with children in the care of local authorities.6 i have developed it for use in higher education, specifically legal education, and have used it with young people on other projects. it was the main data collection method for my phd research, which focused on the knowledge, skills 2 m tomoszek, ‘the growth of legal clinics in europe – faith and hope, or evidence and hard work?’ 2014 21(1) international journal of clinical legal education 93 3 j ching et al, ‘an overture for well-tempered regulators: four variations on a letr theme,’ (2015) 49(2) the law teacher 143, 146 4 mckeown, p. and dunn, r., ‘the european network of clinical legal education: the spring workshop 2015,’ (2015) 22(3) the international journal of clinical legal education 312 5 clark, j. ‘exploring the use of diamond ranking activities as a visual methods research tool’ (2009) paper presented at the 1st international visual methods conference. accessed via <https://www.academia.edu/1197680/exploring_the_use_of_diamond_ranking_activities_as_a_visual _methods_research_tool> last cited 3.10.20 6 thomas, n.p. and o’kane, c. ‘children’s participation in reviews and planning meetings when they are “looked after” in middle childhood’ (1998) 4 child and family social work 221 https://www.academia.edu/1197680/exploring_the_use_of_diamond_ranking_activities_as_a_visual_methods_research_tool https://www.academia.edu/1197680/exploring_the_use_of_diamond_ranking_activities_as_a_visual_methods_research_tool reviewed article 35 and attributes considered necessary to start day one training competently and whether live client clinics can develop them. the method was chosen because it was quick, simple and generated several forms of relatively easy analysis. it also encourages group discussion, which will be explored in this article, allowing for both quantitative and qualitative data to be collected. the first part of this article will outline visual methods and the literature surrounding the diamond. an in-depth explanation will be given as to how to use the diamond, how to analyse it and what uses it has in both research and teaching, with reference to my own work as practical examples. this article will not discuss the findings of my phd research7 any further than to explain how the analysis works, but rather the methodology and usefulness of the diamond as a practical guide. more recently, i have used it as a tool for collecting data in a children’s secure unit, which will be discussed in the final section. the diamond the diamond, originally called the diamond9, is used in primary education. it has been described as a, ‘thinking skills tool,’ 8 which encourages and facilitates discussion. a typical diamond9 looks like the following: 7 for more information, please see dunn, r., the knowledge, skills and attributes considered necessary to start day one training competently and whether live client clinics develop them (2017) phd thesis, northumbria university 8 clark, j., laing, k., tiplady, l. and woolner, p., ‘making connections: theory and practice of using visual methods to aid participation in research,’ (2013) research centre for learning and teaching, newcastle university, p.6. accessed via reviewed article 36 figure 1 – the diamond9 the way in which it works is simple. participants are given nine cards, which can contain statements, words or pictures. they are asked to place them on the diamond board in a hierarchy, depending on what the researcher is measuring. for example, in my research i was measuring which knowledge, skills and attributes were considered important to practice. the card considered most important was placed at the top of the diamond, and the card considered least important at the bottom. the diamond is a diverse tool, which can be used to measure essentially anything. for example, instead of importance you can use it to measure feelings, preferences or interests. it can even be used to measure preferred crisp flavours or cutest animals. when one normally asks someone to rank in a list form, we have a definite place for each category, but it may tell is little about the relationship between the ranking. the researcher will find what the ‘most’ and ‘least’ category being measured, which are <https://eprint.ncl.ac.uk/file_store/production/190964/23811f02-9772-42f3-b124-ad0830449ed7.pdf> last cited 11.06.18 reviewed article 37 easy to identify, but the middle becomes undifferentiated and tells us little about the placements. the purpose of the diamond is to, ‘encourage discussion about the relative importance of certain factors.’9 cards which are placed on the same row are thought of as carrying the same weight of whatever is being measured and presents the researcher with the opportunity to explore the relationship between those elements. cards may be moved into a different rank once placed on the board and all cards must be placed, for a complete diamond. the important aspect of the diamond, however, is not necessarily the final position of what is being measured, as there is no right or wrong answer. the importance is the ‘process of discussion, negotiation, accommodation to other perspectives, and consensus-seeking that takes place in agreeing the ranking.’10 when participants organise their opinions in this way, they make their ‘understandings available for analysis and comparison.’11 comparisons and differences can be made between different categories, which gives a richer analysis and discussion than merely listing categories. furthermore, ‘when ranking items – for example, statements, objects or images – the participants are required to make 9 m rockett and s percival, thinking for learning, (network education press, 2002) 99 10 clark, j. ‘exploring the use of diamond ranking activities as a visual methods research tool’ (2009) 3. paper presented at the 1st international visual methods conference. accessed via <https://www.academia.edu/1197680/exploring_the_use_of_diamond_ranking_activities_as_a_visual _methods_research_tool> last cited 3.10.20 11 clark, j., laing, k., tiplady, l. and woolner, p., ‘making connections: theory and practice of using visual methods to aid participation in research,’ 2013, research centre for learning and teaching, newcastle university, 6 <https://eprint.ncl.ac.uk/file_store/production/190964/23811f02-9772-42f3b124-ad0830449ed7.pdf> last cited 11.06.18 https://www.academia.edu/1197680/exploring_the_use_of_diamond_ranking_activities_as_a_visual_methods_research_tool https://www.academia.edu/1197680/exploring_the_use_of_diamond_ranking_activities_as_a_visual_methods_research_tool https://eprint.ncl.ac.uk/file_store/production/190964/23811f02-9772-42f3-b124-ad0830449ed7.pdf https://eprint.ncl.ac.uk/file_store/production/190964/23811f02-9772-42f3-b124-ad0830449ed7.pdf reviewed article 38 obvious the overarching relationships by which they organise knowledge.’12 thus, there is not only discussion between categories placed on the same row, but across the whole of the diamond, making the participants’ views and constructions more transparent to the researcher. as mentioned above, the diamond can collect both qualitative and quantitative data, whether it is done as part of a group, or individually. the quantitative data is the placement of the cards on the board. when i used it to collect my phd data, i encouraged groups to discuss the placement of the cards. this prompted some very interesting discussion, with group members often disagreeing with each other, and produced qualitative data. there was never, however, a diamond which was incomplete, with members always coming to some agreement13. there are also ways to adapt the diamond to collect further data, adding an inductive element to an apparently deductive tool. for example, adding blank cards so that participants can create their own category is a great way to collect some other 12 niemi, r., kumpulainen, k. and lipponen, l., ‘pupils as active participants: diamond ranking as a tool to investigate pupils’ experiences of classroom practices,’ 2015, 14(2) european educational research journal 138, 140 13 this is in part a result of the semiotics of the task, which encourages completion. however, interesting qualitative data can come from discussions about the nature of the task when participants are reluctant to use hierarchies of any kind. this was reported by clark, who had a participant refuse to adhere to the diamond shape, arguing there was no one image which should be ranked lowest. clark highlights that, whilst frustrating for the researcher, ‘a truly participatory approach also must allow for dissention and allowances to opt out of any aspect of research’. found in: clark, j. ‘exploring the use of diamond ranking activities as a visual methods research tool’ (2009), 9. paper presented at the 1st international visual methods conference. accessed via <https://www.academia.edu/1197680/exploring_the_use_of_diamond_ranking_activities_as_a_visual _methods_research_tool> last cited 3.10.20 https://www.academia.edu/1197680/exploring_the_use_of_diamond_ranking_activities_as_a_visual_methods_research_tool https://www.academia.edu/1197680/exploring_the_use_of_diamond_ranking_activities_as_a_visual_methods_research_tool reviewed article 39 categories of data. if we take our example of preferred crisp flavours, the researcher may provide participants with cards which have flavours currently sold on the market. allowing participants to create their own category may result in them suggesting new flavours of crisps, or flavours which are no longer sold, but feel should be brought back. some have also reported using the diamond9 by providing 10 cards and asking participants to discard one as ‘not important or relevant.’14 this adds a deeper element to the data collection and reflexivity on the part of the researcher and the terms of their hypothesis. what can seem like quite a rigid tool can become flexible and fluid, creating further ways to collect data and opinions from participants and be adapted for whatever the research purpose is. visual methods a visual method is, ‘the use of visual materials as one among several research methods that may be employed by a social researcher during the course of an investigation.’15 there is not necessarily a fixed definition of what a visual method is, but it is generally agreed that visual images are created by participants, ‘in the context of, or in response to, human social action.’16 thus, in order for a method to be considered visual, there must be a visual element to it, and can include photographs, 14 clark, j. ‘exploring the use of diamond ranking activities as a visual methods research tool’ (2009) 3. paper presented at the 1st international visual methods conference. accessed via <https://www.academia.edu/1197680/exploring_the_use_of_diamond_ranking_activities_as_a_visual _methods_research_tool> last cited 3.10.20 15 banks, m. and zeitlyn, d., visual methods in social research, (sage, 2015), ix 16 flick, u., the sage handbook of qualitative data analysis (sage, 2013), 394 https://www.academia.edu/1197680/exploring_the_use_of_diamond_ranking_activities_as_a_visual_methods_research_tool https://www.academia.edu/1197680/exploring_the_use_of_diamond_ranking_activities_as_a_visual_methods_research_tool reviewed article 40 drawings and diagrams.17 this could be in addition to, or independent from, other non-visual methods, such as interviews or surveys.18 it is important to distinguish between visual and non-visual methods, in order to explore whether the contribution visual methods make is ‘distinctive’, and to ensure rigour of the data collection and analysis.19 visual methods are by no means a new concept and have mostly been used in fields such as sociology and anthropology. other fields, such as education and health care, now incorporate visual methods into some research.20 a systematic review conducted by balomenou and garrod found studies using participant-generated images dating back to the 1970s, with 286 studies identified in total.21 this, however, is only techniques using photography, and there are many other visual methods which are used, such as the diamond explained above. 17 wall, k., higgins, s., hall, e. and woolner, p. ‘’that’s not quite the way we see it’: the epistemological challenge of visual data’ (2012) international journal of research & method in education 1, 1 18 in fact, those who use the diamond discuss its usefulness in supporting and/or being supported by other non-visual research methods, or often report using them alongside more traditional methods. for example: see dunn, r., the knowledge, skills and attributes considered necessary to start day one training competently and whether live client clinics develop them (2017) phd thesis, northumbria university bucknall, s.m. children as researchers: exploring issues and barriers in english primary schools (2009) phd thesis, the open university; prosser, j. ‘visual methods and the visual culture of schools’ (2007) 22(1) visual studies 13 19 wall, k., higgins, s., hall, e. and woolner, p. ‘’that’s not quite the way we see it’: the epistemological challenge of visual data’ (2012) international journal of research & method in education 1, 2 20 glaw, x, et al, ‘visual methods in qualitative research: autophotography and photo elicitation applied to mental health research,’ 2017, 16 international journal of qualitative methods 1, 1 21 balomenou, n, and garrod, b., ‘a review of participant-generated image methods in the social sciences,’ (2016) 10(4) journal of mixed methods research 335 reviewed article 41 visual methods can be created by their participants, ‘in the context of, or in response to, human social action.’22 prosser identifies three categories of visual methods: researcher found, researcher generated, and participant generated.23 the diamond sits between the latter two. the researcher generates the diamond board and some, or all, of the categories for measurement, but it is the participants who generate the final diamond board. others argue that there are two kinds of visual methods: one is created by participants to analyse as data and the other is created by the researcher to collect data.24 wall et al categorise the diamond in participant generated data,25 but it doesn’t seem that it is only generating that kind of data, and it may depend on how the diamond is being used. for example, if we are providing participants with pre-determined cards only, the diamond is a method created by the researcher to collect data, but also by the participants to analyse as data. if, however, participants are asked to take their own photographs and then place them on a diamond, this would fall more into the participant generated data category. seemingly, irrespective of how many categories of visual methods are identified by different authors, the diamond does not fit conclusively into only one of them. this diversity, however, is what ‘makes visual methodology complex and attractive’.26 it is not an issue to ‘blur the boundaries’ between the different kinds of visual methods, but it must be 22 flick, u., the sage handbook of qualitative data analysis (sage, 2013), 394 23 jon prosser, ‘visual methods and the visual culture of schools,’ (2007) 22(1) visual studies 13, 19 24 flick, u., the sage handbook of qualitative data analysis (sage, 2013), 396 25 wall, k., higgins, s., hall, e. and woolner, p. ‘’that’s not quite the way we see it’: the epistemological challenge of visual data’ (2012) international journal of research & method in education 1, 3 26 ibid 2 reviewed article 42 acknowledged in order to fully comprehend the impact it can have on the data may be classified.27 there are many advantages to using visual methods, such as enhancing ‘the richness of data by discovering additional layers of meaning, adding validity and depth, and creating knowledge.’28 further, they can be used for member checking to add to reliability of findings and can be replicated with almost any population.29 visual methods can be used alongside other, more traditional, research methods, such as interviews. the visual method can become the focus of the interview, to better understand the meaning of the visual to the participant, further validate the data and to encourage participants to express themselves in a way which may not be possible using verbal techniques alone.30 the use of the visual can prompt participants to, ‘reveal more than they were expecting to share with the researcher.’31 visual images, such as the diamond, ‘could help to alleviate anxiety about the research process and to clarify the role of the researcher.’32 this role clarification is useful for aiding the researcher, as well as participants. visual methods tend to have 27 ibid 28 glaw, x, et al, ‘visual methods in qualitative research: autophotography and photo elicitation applied to mental health research,’ (2017) 16 international journal of qualitative methods 1, 1 29 ibid 30 stedman, r. et al, ‘a picture and 1000 words: using resident-employed photography to understand attachment to high amenity places,’ (2017) 36(4) journal of leisure research 580 31 pain, h., ‘a literature review to evaluate the choice and use of visual methods,’ (2012) 11(4) international journal of qualitative methods 303, 313 32 bailey, n.m, and van harken, e.m., ‘visual images as tools for teacher inquiry,’ (2014) 64(3) journal of teacher education 241, 245 reviewed article 43 a recognisable semiotic form, and by their nature they imply interaction, which may ease participation and be a pathway into conversations between the research and the participants.33 further, the timing or pace of these interactions is much less controlled then is more dialogic forms of data collection, such as interviews or a survey. in this way, the researcher can retreat into the background and allow the participants to have more autonomy and control over the data collection process and interact with each other, rather than the person exploring their opinions. during my data collection for me phd, i very much knew my position in the research process and what my role was during the data collection. once i told my students what they had to do, i stepped back and let them do it, allowing them to ‘set the agenda’34 of the diamond. this will be explained further below. how i used it for my own research, i made the diamond bigger, with 16 spaces. i felt as though this were necessary, as there are so many knowledge, skills and attributes involved in legal practice, and only nine spaces would not have reflected this. it was the same concept, but a bigger board. the diamond16 looked like the following: 33 for example, hopkins discusses the use if the diamond as a ‘useful starting point for conversations between teachers and pupils and between student teachers and their tutors about ways in which teaching and learning might be enhanced and personalized.’ hopkins, e. ‘classroom conditions for effective learning: hearing the voice of key stage 3 pupils’ (2010) 13(1) improving schools 39, 53. 34 prosser, j., ‘visual methods and the visual culture of schools,’ (2007) 22(1) visual studies 13, 22 reviewed article 44 figure 2 – the diamond16 it maintained the diamond shape, but had more rows and cards. i gave my participants 11 pre-determined cards, as seen on figure 2, and five blank cards, to create their own knowledge, skills and attributes. this enabled me to collect a whole other data set to analyse, as i was curious to see what they thought important enough to create on a card. it also made for interesting cross-analysis across all of the groups. there are other areas of analysis which can provide some useful results and discussion, from a methodological perspective. for example, it is possible to track reviewed article 45 the movement of a card throughout a diamond. it was interesting see something which may have started off as important but, as discussions develop and other cards are placed, move down the board or are swapped with others. this analysis is greatly aided by the qualitative data, explaining why a card has been moved. further, the qualitative data can be turned into quantitative data, recording how often a card is discussed, or not discussed, and whether this has had an effect on its placement. for example, one may find that a card not discussed is not placed highly on the board, and the perceived most important cards are discussed more. this kind of analysis may not completely answer the research questions which are being asked, but may help to explain what is going on behind the scenes and open up further areas of discussion and methodological questions. my primary data was collected with four firms of students in northumbria’s student law office over an academic year. as the students were starting their clinical experience, i collected a diamond16 during their first firm meetings. i then went back at the middle and end of the year. the final diamond16 was collected during their last firm meeting, which was followed by a semi-structured group interview, in which i presented them with all of their diamond16s from across the year. this interview served two purposes: to validate the diamond16s and to explore with them further what they thought was important to practice and whether they thought their experience in the student law office had helped to develop these skills. thus, for these students, i could track their development and potentially changing reviewed article 46 perspectives over the year, as they gained more practical experiences. the student law office also offers electives in the second semester to bptc and lpc students. one diamond16 was collected with the bptc students, but i was able to collect two with the lpc students, at the start and end of the module. for comparison, i collected data with the tutors whose firms i had been allowed access to, who had, or still, practised. they either did it as a group or individually. those who did it individually were asked questions about the placement of the cards once they had completed the diamond16, to collect the necessary qualitative data. i was also permitted to enter two law firms in newcastle in collect data. a commercial firm participated as a group, including partners, solicitors who oversee trainees and a representative from hr and recruitment. one lawyer participated from a legal aid firm. finally, i gained access to three other clinics: another in the north east of england, one in poland and one in czech republic. this enabled me to conduct a cross comparison between different groups, to explore whether location, experience and proximity to practice can change perceptions of what is important to practice. altogether i had 110 participants, with 32 completed diamond16s. this gave me a wealth of data to analyse and discuss, with many different perspectives and experiences present. it is important to note, however, that not every diamond16 produced qualitative data. some of the diamond16s conducted in poland and czech reviewed article 47 republic were done by non-english speakers and, whilst parts of it were translated/interpreted for me, it was not enough for me to be confident to use is as a reliable data set during the analysis. thus, eight of the diamond16s had excluded qualitative data, which was recorded and explained during the analysis stage of the phd. it may be important here to emphasise that not all research goes exactly as planned and, as long as the researcher is transparent in their findings appropriate conclusions can be drawn from the results. after all, we can’t plan for and anticipate everything during the research process. practicalities there are some practicalities to consider when using the diamond. firstly, i never spoke to my participants when they were doing the diamond, except to further clarify how it worked. i would tell them at the start what they needed to do, but i never discussed what the different cards meant. i wanted to know what each knowledge, skill and attribute meant to them, rather than them adopting my definition. this worked effectively, as their meaning of certain cards was developed and drawn off their experience of working with it. this means that the skills can mean something different to each participant, making for some very interesting discussions. it also needs to be considered how to record the data. i filmed each diamond16, with the consent of my participants, on my ipad. this meant i could accurately record reviewed article 48 their discussions and the movement of the cards. once the diamond16 was complete, i took a picture of the final placement. these pictures were used in my thesis and made it easier to check my data once it was converted to the spreadsheets. i wrote up each diamond16 after it happened, using the videos as an aid, recording which group of participants it was, how many participated, the date and any other details which needed to be noted. i made a written transcription of all of the qualitative data, provided the picture of the final placement and stated which cards were created and which were moved throughout the diamond16 and to where. this served me well when it came to analysis, as i had 32 diamond16 altogether to organise. recording using technology, however, may not always be appropriate or possible. other ways in which to record the data is to print off multiple diamond boards and stick cards to the board once complete. this also means that an accurate note must be made of any comments and discussions. i have also produced worksheets of the diamond16, used mainly in teaching, which allows participants to write the skills in the boxes. this potentially stifles the movement of the cards, as participants will have to cross out and rewrite a category, but it provides the researcher with final placements. the diamond is a quick method to use. each exercise took anywhere from a few minutes to half an hour. i found that i collected very rich data quite quickly, with a reviewed article 49 variety of analysis possibilities. it also meant that transcribing did not take as long as it may with an interview. analysing the diamond as stated, the diamond provides the researcher with both quantitative and qualitative data. this is a mixed method, meaning that it can be used to answer questions that ask what, why and how. quantitative data can only show so much. for example, in my own research it could tell me what knowledge, skills and attributes were thought of as important, but not why or how they were important. the why or how is developed using the qualitative data. this is highlighted by cresswell and clark, when advocating for the use of mixed methods.35 they argue that each kind of data has its merits but are limited in what they can show, so the weakness of one is redeemed by the strength of the other.36 thus, ‘the use of quantitative and qualitative approaches in combination provides a better understanding of research problems than either approach alone.’37 what this means for the diamond is that there are two kinds of analysis to consider. for ease of explanation, and to show a practical example, i will use some of my own diamond16 analysis. the quantitative analysis will be explained in this article only. i used thematic analysis to analyse the diamonds and my interviews, following 35 creswell, j.w. and clark, v.l.p., designing and conducting mixed methods research (sage, 2007) 36 ibid 9-10 37 ibid 18 reviewed article 50 clarke and braun’s six steps.38 there is already extensive articles and guides on thematic analysis and i do not feel it necessary to repeat it here. when analysing the diamond, the board should be split in different sections. woolner et al, when analysing a diamond9, split the board in 5 sections, each row becoming a section.39 i did the same for the diamond16, but with multiple rows contained in certain sections, as follows: figure 2 – analysis of the diamond1640 the calling of top and bottom sections the ‘trinity’ came from a group of participants, who refused to move any of the skills in this section and named it, ‘the 38 clarke, v. and braun, v., ‘using thematic analysis in psychology,’ (2008) 3(2) qualitative research in psychology 77 39 woolner, p.et al, 'what is learning? views of ideal and institutional learning held by he, fe and school teachers engaged in practitioner enquiry' (the european association for practitioner research on improving learning (eapril) conference paper) 24th-26th november 2010 40 dunn, r. the knowledge, skills and attributes considered necessary to start day one training competently and whether live client clinics develop them (2017) phd thesis, northumbria university, 158 reviewed article 51 holy trinity’. i liked this and adopted it during the analysis stage. as the board was bigger, i thought it easier to group the skills in this way, without masses of sections. it also allowed for me to see which skills were collectively placed at the top and the bottom, but if i wanted to discuss a skill in more detail because it was placed in the top box or the bottom box, i could still do this in the discussion. further, it also meant that there were equal numbers of cards in each row, apart from the middle row which had four, making a more equal representation of where the cards were placed. any cards which were placed on a certain row were given a numerical value. the more important the card was perceived, the higher the value it was given, because of how it would be represented on the graphs, which will be explained further. i entered all of the values into an excel spreadsheet. for example, when inputting the pre-determined cards and values for a student law office firm over the course of the year, it looked like: figure 3 – example of multiple diamond16 pre-determined cards data input41 i analysed the pre-determined cards, which i gave participants, separately to the cards which they created. this made the analysis easier, but also so that there could be deeper discussion of each separate data set. when looking at this table, we can see that for this firm thick skin was always placed in the bottom trinity. intuition 41 dunn, r. the knowledge, skills and attributes considered necessary to start day one training competently and whether live client clinics develop them (2017) phd thesis, northumbria university, appendix 9 reviewed article 52 started in the top trinity at the start of the year, but progressively moved down as the year went on. some cards fluctuated greatly, others stayed in a very similar place on the board. looking at it this way, however, is only simple when you have worked with the data and can pick out the numbers easily. excel is a great tool for making graphs and most of the data was presented in this way. this is why the numerical values were highest for the most important cards, so that they appeared higher on the graphs. it would have looked strange, for example, if analysis, which scored quite highly across all diamond16s for this firm, appeared low on the graph making it seem less important at a first glance. thus, the data in this table was displayed in the following graph: graph 1 – final placement of the pre-determined cards for firm a42 42 dunn, r. the knowledge, skills and attributes considered necessary to start day one training competently and whether live client clinics develop them (2017) phd thesis, northumbria university, 220 0 1 2 3 4 5 6 firm a pre-determined card placements throughout year d16 1 d16 2 d16 3 reviewed article 53 instantly when looking at this graph, we are able to see which cards were deemed the most important and which the least and how it changed and developed over the year. this was very quick and easy to make on excel, using the above data. another way in which i could present the data, was to use all 32 diamond16s and create an ‘importance score’. this was done by adding together all of the numerical values of each card, to create an overall score. again, excel makes this very simple to do. it allowed me to see the overall perceived importance, and non-importance, of each card. this was done separately for the pre-determined cards and the created cards. the final graph for the pre-determined cards was: graph 2 – importance scores of pre-determined cards43 43 dunn, r. the knowledge, skills and attributes considered necessary to start day one training competently and whether live client clinics develop them (2017) phd thesis, northumbria university, 170 141 141 134 87 86 86 84 80 63 62 50 0 20 40 60 80 100 120 140 160 total score for pre-determined cards from all 32 d16s reviewed article 54 by giving a higher value to the cards in the top part of the board, it was easy to add up all of the values to provide an overall score. here, we can see that oral skills and analysis were the most highly placed cards across all of the diamond16s and thick skin was placed the lowest most often throughout all of the diamond16s. what this does not tell us, however, is the range of where the cards were placed, even if we can see perceived importance. this will be addressed below. i was also interested to see how the “hard” skills were perceived as important, compared to the “soft” skills. i split each of the cards into these two distinct categories and showed the amount of times they were placed in each section of the board. it is important to note here that the categorising of these cards was at times subjective, as are most decisions in research and analysis. this cannot be avoided as the decisions we make are based on our opinions and our own experiences. as long as there is ‘honest acknowledgement of the researcher’s position, goals, experience, and subjective point of view,’ 44 and this subjectivity is not ignored it does not detract the rigour from the research. for example, there is dispute over whether awareness of ethical issues is a “hard” or a “soft” skill, and i decided to place it in the “hard” skills category. this is because students in the uk are tested on the codes of conduct during the course by way of an examination. i appreciate that there are elements of ethics which are in the “soft” skills category, but i strive to be 44 gelman, a. and hennig, c., ‘beyond subjective and objective in statistics,’ (2015), 12 accessed via http://stat.columbia.edu/~gelman/research/unpublished/objectivity10.pdf last cited 19.06.18 http://stat.columbia.edu/%7egelman/research/unpublished/objectivity10.pdf reviewed article 55 transparent on my categorisation and analysis and why certain choices were made. this analysis added some more insight into the perceived importance, which could not have been discussed using graph 2 and the overall importance score. again, i will only display the graphs for the pre-determined cards:45 45 dunn, r. the knowledge, skills and attributes considered necessary to start day one training competently and whether live client clinics develop them (2017) phd thesis, northumbria university, 178 reviewed article 56 9 14 8 7 22 10 5 8 10 8 7 5 15 9 5 5 11 11 3 6 11 4 1 2 5 1 1 4 6 2 3 2 1 3 i n t u i t i o n p a t i e n c e p e r s e v e r a n c e e m p a t h y t h i c k s k i n a u t h o r i t y a s s e r t i v e n e s s c h a rt s h ow i n g t h e p l ac e m e n t o f p r e d e t e r m i n e d " s o f t s k i l l s " c a r d s a l l d 1 6 s bottom trinity bml ml aml top trinity 7 6 3 6 5 12 13 14 9 4 16 12 18 3 o r a l s k i l l s w r i t t e n s k i l l s a n a l y s i s a w a r e n e s s o f e i c h a rt s h ow i n g t h e p l ac e m e n t o f p r e d e t e r m i n e d " h a r d s k i l l s " c a r d s a l l d 1 6 s bottom trinity bml ml aml top trinity graph 3 – placement of “hard” skills for all groups graph 4 placement of “soft” skills for all groups reviewed article 57 when considering these graphs, we can see much more activity. taking the hard skills first, apart from awareness of ethical issues there was never an instance of a “hard” skill being placed below the middle line. this explains how analysis, written and oral skills scored so highly overall. awareness of ethical issues was placed more varied across the board, appearing more in the bottom half of the board, than the top. looking at the “soft” skills, again they were much more varied in their placement. thick skin, which scored the lowest overall, appeared in the bottom trinity more than any other card and only appeared in the top trinity once. these graphs can tell us more about the perceived importance than an overall importance score. for example, whilst analysis had the overall joint highest importance score, it was not perceived to be the most important for every group of participants, as there were 16 occurrences of it being placed outside of the top trinity. this is where the qualitative data collected during the diamond16 is vital, as it helps to explain what is happening with the quantitative data, and why certain cards scored more highly. for example, thick skin and patience were placed in the bottom trinity more than other cards. a group of lawyers in a commercial firm stated: ‘because you can manage that [pointing to thick skin and patience]. if you know the nq in your team doesn’t have a thick skin, doesn’t have patience, you can manage it.’46 46 dunn, r. the knowledge, skills and attributes considered necessary to start day one training competently and whether live client clinics develop them (2017) phd thesis, northumbria university, 180 reviewed article 58 thus, skills which were seen as ‘easy to manage’ were less likely to be seen as important. the more difficult skills to develop, such as the “harder” skills, were more important for starting day one training competently. this example emphasises that quantitative can only take us so far when discussing what the data shows and often it is imperative to have qualitative data to explain what is happening behind the numbers. the diamond16, being a mixed methods tool, fosters this well. in some instances, presenting data was easier done with a table, rather than a graph. it is necessary to explore different ways to present data, as they can each tell us of different activity with the data. i wanted to know how many times a “hard” skill was placed in each section of the board, compared to a “soft” skill: table 1 the amount of times a “hard” or “soft” skill (pre-determined and created cards) was placed in each section of the diamond1647 47 dunn, r. the knowledge, skills and attributes considered necessary to start day one training competently and whether live client clinics develop them (2017) phd thesis, northumbria university, 184 reviewed article 59 importantly, i should highlight that there were more “soft” skills than “hard” skills, across both pre-determined and created cards. if we detract the number of predetermined skills from the overall numbers of each category, there were 58 cards created in the “hard” category and 102 cards in the “soft” category. this is an interesting observation to make, and there was no definite answer as to why this happened. it could be that there were just more “soft” skills which exist and were able to be created or it could be that the amount of “soft” skills created indicates that the skills are important, as they were created, even if not placed highly on the board. from this table it can be seen that the “hard skills” were more likely to be placed in the top half of the board than the bottom, and there were more “hard” skills placed here than there were “soft” skills overall. there were more instances of the “soft” skills being placed in the top half of the board, than there were of the “hard” skills being placed in the bottom half of the board. this can indicate that, even though there were less “hard” skills, their perceived importance is so great that they were not placed below the middle line as often as above. it can be argued that the “harder” skills are more inherently important to practice. if we look to some qualitative data, this can be explained further. taking the commercial lawyers again, they stated: ‘….to a certain degree, as you go through your career and develop as a lawyer, there’s almost a merging of this. you know, the bottom skills having to move up a little bit to deal with that fact you have developed and…. you reviewed article 60 know, you’ve developed the skills in the top half that allow you to then, as you’ve move up the chain perhaps in a firm, to develop more of a thick skin to deal with issues and become more assertive, etc.’48 thus, we can see an explanation of this as a ‘merging’ of the different knowledge, skills and attributes over time. the skills you need when you start day one training are mostly the “harder” skills, then, as you progress through your career, the softer skills are developed and become more necessary. there were similar statements made by other participants, showing some generality of this conclusion. again, this is an example of the qualitative data explaining what is going on behind the numbers. finally, we can use the diamond16 to measure other methodological trends in the data. for example, i was curious to see if the amount of times a card was moved up or down on a board made a difference to its final placement and importance score. the movement is displayed on the following graph: 48 dunn, r. the knowledge, skills and attributes considered necessary to start day one training competently and whether live client clinics develop them (2017) phd thesis, northumbria university, 185 reviewed article 61 graph 5 – amount of times a card was moved up or down across all diamond16s49 this graph shows that most cards were moved down the board during the diamond16 exercises more than they were moved up the board. analysis was the only pre-determined card which was moved up more than it was moved down, and oral skills was equal in the amount of times it was moved. apart from with awareness of ethical issues, a “soft” skill was more likely to be moved than a “hard” skill. it can be argued that the participants were more certain of their placement of 49 dunn, r. the knowledge, skills and attributes considered necessary to start day one training competently and whether live client clinics develop them (2017) phd thesis, northumbria university, 186 25 24 11 21 9 9 18 14 23 22 7 19 11 3 1 9 9 5 8 4 4 13 12 38 ba r g r a p h s h ow i n g t h e a m o u n t o f t i m es a c a r d wa s m ov e d ac ro s s a l l d 1 6 s moved down moved up reviewed article 62 the “hard” skills and the “softer” skills needed more deliberation. lastly, the created cards were moved up the board more than they were moved down the board. an explanation for this is that the cards were usually created throughout the diamond16 exercise, so participants would often move other cards down, usually the “softer” skills, to make space for their created cards to have a higher placement. if a participant thought a card was important enough to create it is acceptable to assume that they would like it to be placed higher in importance also. what this graph doesn’t tell us, however, is how the movement of the cards relates to the importance. thus, i compared this with the pre-determined cards this using the following graph: 0 20 40 60 80 100 120 140 160 thick skin authority patience perseverance empathy awareness of ei intuition assertiveness written skills analysis oral skills graph displaying the total amount of times, across all 32 diamond16s, a card was moved in comparison to its importance score total amount of times card moved importance score reviewed article 63 graph 6 – comparison between movement and importance score of pre-determined cards50 this graph shows that the more important a skill is perceived the less likely it is to be moved, with perseverance as an outlier. this isn’t consistent, with the lower the score showing more movement progressively, but does indicate that the more important a skill is perceived, the more fixed it is in its place. graph 5 above showed that perseverance was moved down 11 times and only up once and from graph 4 that it was most likely to be placed on the middle line and below. thus, this skill started quite low and was not moved up the board more than once, explaining why it is an outlier. it's perceived importance was so low that it remained quite immobile and often fixed in its placement. the above explanation of the analysis and presentation of some of the data demonstrates how the diamond16 has enabled me to delve quite deep into the data. the data available for analysis helped me show what was perceived to be important, but also the thinking behind this, both quantitatively and qualitatively. this is not all of the analysis which i engaged in during my thesis, but a illustration of what i found i could do with the diamond16 board. i quickly discovered that i could collect many different kinds of data with each short diamond16 activity. i also engaged with group comparisons, methodological analysis of movement and discussions of 50 dunn, r. the knowledge, skills and attributes considered necessary to start day one training competently and whether live client clinics develop them (2017) phd thesis, northumbria university, 188 reviewed article 64 the cards and presented the data using a venn diagram and other visual tools. i hope that the above explanations will help others who wish to use this tool in research and teaching. validity as with any data collection, it is important to engage with some form of data validity. there are different ways in which to validate data and, whilst there is no right way in which to validate data, it comes down to, i argue, the kind of data which has been collected. i will not engage with a discussion of all of the different ways in which to validate, but rather how i validated my own data from the diamond16. data validation is, ‘epitomized by the question: are we measuring what we think we are measuring? in a broader concept validity pertains to the extent that a method investigates what it is intended to investigate.’51 so, validity is making sure your method has measured what you are wanting and thought it would, becoming a kind of investigation which questions the theoretical findings and interpretations.52 there are various ways in which to validate data and one method in triangulation is ‘member checks.’53 there are two ways to member check, and both or either may be 51 kvale, s., issues of validity in qualitative research, (studentlitteratur, 1989), 74 52 ibid 53 creswell, j.w., research design: qualitative, quantitative and mixed methods approaches, (sage, 4th edn, 2014), 251 reviewed article 65 used during the same data validation. the first is allowing participants to read over the raw data and check that it is accurate and add anything they think is missing on reflection or would like to clarify. the second is to read the discussion of the data, written by the researcher, and ask them if this reflects what they meant/said during the data collection. there are arguments for and against each method. for example, creswell states that raw data should not be used, but that the researcher should use, ‘polished or semi-polished product, such as the major findings, themes.’54 this way, the participant can check that the researcher’s interpretation and presentation of their lived experience is accurate, rather than using the raw data with no interpretation. i validated the diamond16 with the students who did the exercise throughout the year. at the end of their last diamond i presented them with printed photographs of their first two diamonds. this meant that they could look at them all alongside each other and see how they had changed over the year. this led straight into a group interview, where we talked about the changing diamonds and their perceptions of the knowledge, skill and attributes on the board. i also reminded them of discussions and comments made during the other diamonds, read from the raw data. this gave them an opportunity to say why they had said certain comments and whether that opinion had changed. once the diamonds were validated, the rest of the interview focused on their experience in the clinic and how they felt about going on to practise. this worked very well for two reasons: i was able to validate the data with the 54 ibid reviewed article 66 group, at the end of the process before they left the university and they also provided a nice tool and focus for moving into the group interviews. difficulties with the diamond’s collection and analysis i did not come across many difficulties when collecting the data, but more when considering the dynamics of it. as with any data collection method, there are disadvantages or potential effects on the data which must be addressed and discussed. further, when data collection involves using groups there are nearly always more dominant members of the group. when participants were arguing over where to place a particular card, there was always someone who had to recede their argument. this interaction between participants has been noted in research previously,55 and some researchers will encourage this disagreement between participants.56 it is highly unlikely that all participants will agree with each other in every different group, which may be frustrating for some researchers, but it can result in deep and rich discussion of the lived experience.57 whilst groups of participants can cause issues, however, using various groups does have its advantages. for example, it can create more reliability in the data, as ‘if a series of groups are analysed concurrently, the researcher can determine the point at which there seems to be consensus on the range of issues deemed to be relevant of the 55 wong, l.p., ‘focus group discussion: a tool for health and medical research,’ (2008) 49(3) singapore medical journal 256, 260 56 kitzinger, j., ‘the methodology of focus groups: the importance of interaction between research participants,’ (1994) 61(1) sociology of health and illness 103, 106-107 57 sim, j., ‘collection and analysing qualitative data: issues raised by the focus group,’ (1998) 28(2) journal of advanced nursing 345, 348 reviewed article 67 participants, even if determining agreement on each of these individual issues is not feasible.’58 when i was presenting and discussing my data, i made sure to highlight where there was disagreement, and why, in order to give a voice to the individuals involved in the process, as well as a collective voice. though the data analysis of the diamond16 board was relatively simple, there were some issues i faced. for example, when i was analysing the changes in opinions of the skills, i wanted to use an average score for each knowledge, skill and attribute, to discuss one average per group. this, however, proved difficult. i tried to work out the mean, median and mode for each group and mostly it came out mathematically pleasing, but there were instances where it did not. for example, when attempting to calculate the mean it could give a result of 2.5. whilst i understood what this meant, it isn’t actually a possible placement on the diamond16 board and thus not representative of what was happening with the data. when analysing the created cards, i was presented with some different issues. there were cards which were created as many as 13 times and some cards only created once, meaning that if i calculated the range of the placement of these cards, there was a distorted representation of what the scores and was actually happening in the data. lastly, when the mode was attempted, there were occasionally multiple modes, which did not provide the clarity and statistical representation i wished to 58 ibid 348-349 reviewed article 68 portray. thus, any attempts to analyse the data in this way had to be abandoned and the diamond16 did not support it. the diamond in a children’s secure unit since completing my phd, i have begun to use the diamond9 in other areas of research. most recently, i have had the privilege of researching in a secure children’s home (sch), where young people, aged between 10 and 17, are accommodated due to offending or those in the care of a local authority and placed there for their own welfare. the purpose of the study was to measure the changes in a young person’s emotions before, during and after participating in a dance course. the aim was to explore whether dance enables young people to ‘develop a pro-social identity, as well as contribute to building positive social networks.’59 the researchers worked with a dance company who were experienced with teaching dance in prisons and schs. the young people were invited to participate in a weeklong course with the dance company and perform at the end of the week. the researchers carried out a diamond9 exercise before the course started, in the middle of the week, and at the end when the final performance had concluded. the young people were asked to rank 9 emotional statements, one of which was a blank card on which they could create their own emotional statement. the statements were a mix 59 arthur, r., dunn, r. and wake, n. ‘empowering young people: multi-disciplinary expressive interventions utilising diamond9 evaluative methods to encourage agency in youth justice’ (2019) 25 international journal of mental health and capacity law 124, 125 reviewed article 69 of both positive and negative statements, such as ‘i feel excited about my future’ to ‘i feel like no one understands me’. the most strongly felt emotion was placed at the top, decreasing until the weakest felt emotion was placed at the bottom. whilst the purpose of this section is not to go into detail of the results, we found that the dance course did have a positive impact in the experience of the young person who participated, and this was easily tracked using the diamond9. as the researchers did not have long to collect the data with the young person, the diamond9 allowed us to explore their views and emotions quickly and in a way which encouraged participation. the diamond9 results were then followed up and discussed a short time after during a semi-structured interview. as discussed above, there are many instances of the diamond9 being used with children in schools, but little for those who are kept in schs.60 the use of the diamond9 in this setting allowed for the researchers to collect data expeditiously, in a setting where we had little time to do so, and in a way which allowed to the young people to engage with us. whilst some have reported that photographs are better than written statements for young people, and can help with literary anxiety, this was not suitable for those in the sch.61 we had to be careful with what we showed them, as certain young people had emotional triggers, and we did not want to 60 to note, a study by thomas and o’kane use diamond ranking with children who were ‘looked after’ by local authorities: thomas, n. and o’kane, c. ‘children’s participation in reviews and planning meetings when they are ‘looked after’ in middle childhood’ (2001) 4 child & family social work 221 61 clark, j. ‘using diamond ranking visual cue to engage young people in the research process’ (2012) 12 qualitative research journal 222 reviewed article 70 distress them in any way. we also had to do it individually with each young person, rather than in a group, for ethical purposes. the researcher doing the diamond9 worked with the young person to complete it, reading out the statements. they also discussed the placement of the emotional statements with them, to gain qualitative data during the exercise. the use of the diamond in this study has been so successful, that we are working with researchers in new zealand to replicate the study and compare findings. the most important aspect of using the diamond 9 with these young people was to give them a voice. the un convention on the rights of the child (1998), under article 12, provides for children’s participation in decision-making on matters which impact on their own lives. the diamond9 allowed for this but, perhaps more importantly, it was a tool which ‘promote[d] critical voices.’62 further, by giving the young people a voice, it ‘can also empower them to assume greater levels of participation and involve them as young citizens.’63 the was one of the main aims of the study, and we found the diamond9 provided an opportunity for young people to have their voices heard and whilst we could measure whether they developed a ‘pro-social’ identity and built positive social networks. this would not necessarily have been done, or demonstrated as strongly, with the use of interviews alone. as a result of this study, 62 niemi, r. ‘diamond ranking as a tool to investigate pupils’ experiences of classroom practices’ (2015) 14(2) european educational research journal 138, 147 63 clark, j. ‘using diamond ranking as visual cues to engage young people in the research process’ (2012) 12(2) qualitative research journal 222, 223 reviewed article 71 and the conclusions that dance and other art-based courses can provide young people with an outlet for their emotions and a way to connect and work with others, the sch has incorporated more elements of this into their teaching. they also noted a positive change in some of the young people involved. the practicalities of using the diamond in this setting, however, were much more complex. we were not allowed to take electronic devises into the sch, so all notes of discussions and placements of the cards had to be written. further, as the week went on, we went from several participants to one. this was either because the young person no longer wanted to participate in the course, or were not able to due to their behaviour. further, it took much longer to gain ethical approval, and the diamond9 had to be approved by the sch staff, who had to be present during the data collection sessions. whilst we don’t think this impacted greatly on the data collected, it is something we can to consider during the analysis. using the diamond in a different setting, and with young people rather than university students, has helped to develop my understanding and complexity of this tool to a greater extent. uses going forward as stated above, the diamond can be used as a research tool and a teaching aid, and is often in the student law office. i am aware that it is also used as a teaching tool at york law school. students are asked to complete the diamond16 during their induction sessions, as an ice-breaker for the group members, which are kept by the reviewed article 72 clinician during the academic year. students are then asked to complete it again at the end of the year, before their first diamond16 is revealed. this fosters discussion as to whether and, if so, how their perceptions of skills needed during the clinic have changed over the course of the module, basing it on the students’ experience.64 it seems as though the diamond16 can help to foster discussions of what legal practice entails and how knowledge, skills and attributes can be developed. it can also be used for students to individually track their development and confidence. for example, it can be used for students to rank which skills they feel most confident with going into a clinic and which skills they feel as though they need to work out. seeing it visually may provide a basis for the students working in the clinic and where to focus their development. i have also had some of my participants use the diamond16 photos in their personal reflections at the end of the clinic, so that they can show their skills development and aid their reflective commentaries. other research using visual methods has highlighted that for ‘people unused to reflecting on their experience, visual methods may provide a stepping stone.’65 they found it useful to discuss how their knowledge, skills and attributes have developed over the year using the diamond16 as a visual aid, making them useful to those involved in my research as well as for my own purposes. if you are running a clinic and find students face difficulties with reflection, this could be a helpful and educational tool to use. 64 the information was sent to me via email and is not published at the time of writing. 65 pain, h., ‘a literature review to evaluate the choice and use of visual methods,’ (2012) 11(4) international journal of qualitative methods 303, 308 reviewed article 73 i have also been informed that the diamond16 is being used in recruitment for legal apprenticeships in law firms.66 this will be as a result of giving the design to a law firm whom i collected data with, to use with their current and potential trainees. i am pleased that this method is proving useful to those outside of academia and demonstrates how diverse and beneficial it is. i hope to continue this work with law firms in the future, helping them to develop recruitment techniques. i have my own personal uses for the diamond16 going forward and i highlighted in my thesis other possible studies which could be conducted using the diamond16.67 i plan to use it for a larger, global study in the knowledge, skills and attributes needed for competent legal practice and an analysis of what is required in certain legal specialities. for example, in the literature surrounding knowledge, skills and attributes in legal education, there is debate as to whether we should be teaching generic legal skills, or skills more specific to an area of practice.68 this is an interesting debate but with little empirical data to know if there is such a difference. the diamond16 will be made as an online tool, which can be sent to lawyers across the globe in many different specialist areas. this will hopefully allow me to analyse 66 this information has been passed to me informally, but i will be contacting the law firms to explore how they are using the diamond16 and how effective they think it is. 67 dunn, r. the knowledge, skills and attributes considered necessary to start day one training competently and whether live client clinics develop them (2017) phd thesis, northumbria university, 289-291 68 for example, please see rankin, s.k., 'the fully formed lawyer: why law schools should require public service to better prepare students for private practice,' (2013) chapman law review, 2-3. accessed via https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2259866; grimes, r., 'reflections on clinical legal education,' (1995) 29 the law teacher 169, 171-172 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2259866 reviewed article 74 whether there are some specific skills we should be teaching, or whether generic skills are what law schools should be aiming for. this will also enable me to do a geographical comparison, seeing which countries require which knowledge, skills and attributes and if there is a difference depending on where a lawyer is based. further, in my thesis i discuss whether there is a difference between foundational legal skills and practical legal skills. there were suggestions that there are, but more in-depth research is needed to answer this question. these are two areas of further research which i wish to conduct, but there are others highlighted which i will not pursue empirically. for example, a study on which skills are perceived to be “hard” and “soft” and why those in the legal sphere think of them that way. there are many different ways to use the diamond16 and i am excited to explore further opportunities with it. in terms of furthering its use with young people, a team within northumbria law school have been given funding to use the diamond9 as a way to collect data with young people who are detained in hospitals under the mental health act 1983. the main aim of this project is to determine whether the information given to the young people is suitable to their age and maturity, whether they felt they had received the appropriate information and their awareness of their rights in relation to their detention. it is hoped that the results of this project will also give a voice to young people and involve them in the decisions which impact in their life. reviewed article 75 conclusion diamond ranking is not a new concept in research but has traditionally been contained within primary education research. this article shows how a method can be taken from one discipline and adapted for another, such as socio-legal studies. it can be used to track development, for comparison across groups and as a methodological analysis tool. as it is mixed methods, it collects both quantitative and qualitative data, adding some dialogue and explanation to numbers. it is quick and easy to use with relatively simple analysis. all graphs were made using microsoft excel, so no complicated or expensive data analysis software is needed, just some patience and time. further, it can used to measure a variety of different uses, such as importance and feelings. this makes it a great teaching and development tool, as well as a research tool. whilst the diamond ‘fulfils similar purposes to traditional techniques’ of data collection, getting participants to engage with the visual can be ‘more motivating for the respondents and [can] add a dimension of fun to the data collection exercise’.69 it is important to divulge in the research methods of other disciplines, to help advance our own and develop as researchers. the diamond, for me, has been a great 69 wall, k., higgins, s., hall, e. and woolner, p. ‘’that’s not quite the way we see it’: the epistemological challenge of visual data’ (2012) international journal of research & method in education 1, 5-6 reviewed article 76 tool to work with and has inspired me to look for other innovative and creative ways to collect data. reviewed article 68 holistic legal support for litigants in person: the north and mid wales virtual law clinic partnership sarah nason, lecturer, bangor university, wales, united kingdom abstract in 2020 the access to justice foundation and ministry of justice launched the legal support for litigants in person (lslip) grant, a two-year programme funding a range of earlier intervention services for litigants in person. eleven projects were funded to deliver advice on a national, regional, and local scale, to litigants in person at different stages of their problem in various areas of civil and family law. partnership working and earlier intervention were central to these activities, to achieve improved outcomes for clients. one such project became known as the north and mid wales law clinic (nmwlc), including seven local citizens advice (ca) branches (six in north wales plus powys in mid wales) and bangor university. the nmwlc delivers a service to support litigants in person (lip) at every stage of their journey, providing generalist holistic advice designed to identify lips early on, preventing escalation of their legal problems, reducing financial hardship, and resolving issues with information to support self-help. the partnership provides generalist advice, and specialist advice and casework in the areas of family law, employment law, and powers of attorney and deputyship (the latter being areas where local demand was identified by ca and partners). through the project law reviewed article 69 students are supported to train as general advisers and to assist specialist advisers and caseworkers. the project provided a unique way to develop clinical legal education (cle), not least as it commenced fully online during the covid-19 pandemic, focused on preventing escalation of legal problems, including through triage and partnership, and occurred in a small law department where existing provision (aside from in criminal law) was largely based on simulated activity. this article evaluates the first two years of the nmwlc from a cle perspective, focusing on the experiences of student volunteers, exploring the challenges and opportunities of online working, and how the initiative fits with cle models. introduction in april 2020 the access to justice foundation and uk ministry of justice launched the legal support for litigants in person (lslip) scheme, a two-year programme funding a range of earlier intervention services for litigants in person (lip) (atjf, 2020). eleven projects were funded to deliver advice on a national, regional, and local scale, to lips at different stages of their problem in various areas of civil and family law. national grantees were law for life, lawworks, rcj advice, support through court and advocate. the regional and local partnerships generally expanded the scope and/or capacity existing services. however, one project, the north and mid reviewed article 70 wales law clinic (nmwlc), was a new regional virtual law clinic, first established during the covid-19 pandemic. the nmwlc delivers a service supporting lips at every stage of their journey, providing generalist holistic advice designed to identify lips early on, preventing escalation of their legal problems, reducing financial hardship, and resolving issues with information to support self-help. as with other lslip projects, partnership working and earlier intervention are central to its activities, which aim to achieve improved outcomes for clients and offer a wide range of experiences to students. in this article, i explain how the project provided a unique means to develop clinical legal education (cle) focused on social justice and preventing escalation of legal problems. i evaluate the first two years of the nmwlc from a cle perspective, contributing to international debates about the development and practice of online cle and the nature of community access to justice in the context of austerity cuts to services. i examine how the nmwlc’s holistic and empowering approaches fostered a growing sense of social conscience in student volunteers, enabling them to develop a more nuanced understanding of justice problems and solutions, alongside addressing local legal needs, and enhancing their employability. i argue that this breadth of experience is especially important given the changing nature of legal and justice services and careers in many jurisdictions. reviewed article 71 establishing a virtual law clinic, partnerships, and social justice in the community the imprimatur to the lslip scheme was the uk ministry of justice (moj) legal support action plan (the “plan”), developed after reforms under the legal aid, sentencing and punishment of offenders act 2012 (laspo) made substantial cuts to legal aid. the plan acknowledged that “more needs to be done to understand what types of support work best, at what time, and for whom”, particularly noting the importance of people being able to access the appropriate level of advice at an early stage (moj, 2019, 5). the plan included initiatives to work collaboratively with providers to develop web-based legal support tools, use funding to encourage the delivery of support through technology, improve signposting for advice, evaluate the impact of legal support hubs, pilot early legal advice in areas of social welfare law, and enhance support offered to lips. the lslip grants primarily aim to achieve this latter goal of providing legal support to lips. the support need is especially high in north and mid wales, indeed laspo reforms have had a disproportionately negative impact across wales (public law project, 2018). between 2011/12 and 2017/18 legal aid expenditure fell by 37% in wales as compared to 28% in england (ifan, 2019). in the areas covered by the nmwlc north wales (anglesey, conwy, denbighshire, flintshire, gwynedd, and wrexham) and powys matter starts in legal help in the ministry of justice category of “welfare” fell from 1,865 matters in 2009/10 to zero in 2020/21 (moj, 2022a). in september 2021, as part of its legal aid deserts campaign, the law society published “heat maps” showing reviewed article 72 the number of legal aid providers in particular subjects of law operating in local authority areas across england and wales. for north wales and powys, each of the seven local authority areas has one housing legal aid provider (shelter cymru) apart from wrexham which has two. there is one community care provider in gwynedd and one immigration and asylum provider in wrexham; there are no other providers in north wales and powys (zero in education, and zero in welfare). the law society updated its maps in may 2022, and the situation for north and mid wales remains unchanged (law society, 2022). with so few private firms now engaging in legal aid work, the third sector plays an increasingly important role, and cle partnership projects between university law departments and local citizens advice (ca) have been on the rise, broadening and deepening to improve access to justice (bengtsson et al, 2021). for example, at northumbria university students studying a law in the community module volunteer weekly at their local ca, as do students completing birmingham city university’s legal advice and representation unit (laru) module. these partnership modules help students develop their social justice awareness, legal knowledge, professional skills and understanding of professional conduct rules (bengtsson et al., 2021; king & jones, 2018). the nmwlc is a project within this family of initiatives, but also with unique roots as a lslip funded virtual partnership. literature suggests that considerations involved in establishing a new law clinic can roughly be divided between the “organisational dimension” of how the clinic will be run as an educational initiative, and the “activities dimension” including matters such reviewed article 73 as the location of the clinic and legal services it will provide (nicolson, 2016). one can also distinguish between a structured “cathedral” approach to cle, defining narrowly the architecture of a university law clinic, its resources, materials, who may enter, and what activities may be conducted, as compared to a “bazaar” of different cle initiatives, widening access to a diverse student body, all with the underlying ethos of improving access to justice for the public (thomas & johnson, 2020, 8). further considerations, especially in the context of re-imagining cle beyond its traditional law school roots, are to decide both when cle takes place, including extending out of term time as well as where it takes place (thomas et al (eds)., 2018). the where has increasingly become a combination of in-person, over the telephone, and online. traditionally most law clinics have been established first and foremost as in-person services with a physical base at a university, law centre, or other local premises, providing advice by appointment and/or through drop-in sessions. the use of technology by clinics has expanded over the years especially during the covid-19 pandemic (mcfaul et al., 2020; jones et al., 2018) with new cloud-based practice management software, as well as using platforms like zoom, teams, and google meet. some clinics provide telephone advice, which is still the most common form of remote advice delivery in social welfare law (creutzfeldt & sechi, 2021). others provide advice online, through email and in online meetings. for many law clinics the covid-19 pandemic necessitated a swift move to remote and online working. this was understandably challenging, and concerns have been raised about client confidentiality and data protection, especially when students and clinic reviewed article 74 staff are all working remotely and usually from home (law works, 2020). many clinics did not take on new student volunteers during the pandemic, at least not until training could again take place within clinic or university premises, and most clinics scaled back their services to a degree (lawworks, 2020). some clinics, on the other hand, have been truly virtual from their establishment, with prospective clients completing online contact forms then reviewed by a supervisor before work is assigned to students who then conduct discussions through secure online portals and online meeting platforms (thanaraj & sales, 2020 referring to the university of cumbria online law clinic). the open university has a fully online clinic using the clio case management system, where web-based enquiry forms are triaged before allocation to supervisors and students, and all communication between supervisor and student also takes place online. a proposed advantage of online cle is the expansion in scale and scope of opportunities; that technology can connect students to placement sites anywhere in the world with cle seen as “a global movement” where “the inherent benefits of online clinical legal education are not defined by national borders” (mccrimmon et al., 2016, 78). challenges, however, include that whilst law students may be ‘digital natives’, they cannot be assumed necessarily to have the required skills and confidence to use technology within their university learning experience (ryan, 2020). on-location volunteering has been stressed as a particularly important benefit of partnerships between law schools and local ca (bengtsson et al., 2021; king & jones, 2018); and where projects are fully online there is a clear need to enable students to reviewed article 75 have as much exposure to real clients as possible (mcfaul et al., 2020). for virtual projects, a key challenge is to minimise students’ feelings of isolation due to the remote nature of online cle (thanaraj & sales, 2020). that what, where and when of clinic establishment is also underscored by resource considerations, including the availability of funding, and the benefits (and drawbacks) of working in partnership (preložnjak & brozović, 2016; thomas & johnson (eds), 2020). there is also the question of whose needs are paramount. for example, nicolson argues that putting student education first reduces the clinic’s potential to service the community and to model an altruistic ethic to students. he argues that to achieve a social justice orientation, clinics should operate largely outside the curriculum to allow educational and social justice aims to be simultaneously pursued without sacrificing community service to pedagogy (nicolson, 2006). whilst social justice is a broad term, in the cle context it can be taken to include core elements of equality, human dignity, freedom, basic education, healthcare, and justice systems (weinberg, 2021). in legal education social justice can be over-shadowed by the appeal of the private sector, which stands out both academically and, apparently at least, for career prospects. consequently, social justice risks being undervalued as students’ attention is focused on fields where clients do not face the same challenges. it has been argued that clinics and law schools should collaborate to make students “justice ready”, enabling them to acknowledge and evaluate injustice and its consequences with a different perspective from those who are merely “practice ready” (weinberg, 2021). reviewed article 76 the need to broaden student perspectives chimes with recognition that a wide range of individuals and organisations participate in social welfare legal advice ecosystems, especially at a local level, and that this includes public, private and third sector bodies (edmiston et al., 2022). the nature of legal services has also changed significantly, with unbundling increasingly evident in the access to justice sector. this is where discrete acts of legal assistance are performed under a particular contract or initiative, rather than a single full service where a solicitor, or other caseworker, would usually deal with all matters from initial instruction to conclusion of the matter. various paraprofessionals, including those based within communities, are seen as important to expanding access to justice. as rebecca sandefur’s work emphasizes, it should not be presumed that help from fully regulated lawyers, or participation in formal legal processes, is necessarily required, or even desirable, to secure legal entitlements and resolve legal problems. she concludes that there is a crucial distinction between “justice problems” and “legal needs”: “if the problem is people’s unmet legal needs, the solution is more legal services. if the problem is unresolved justice problems, a wider range of options opens up” (sandefur, 2019, 50). given that most law graduates will not go on to become solicitors or barristers (see e.g, law society, 2020), and with a larger and more diverse number of people needing access to justice help (see e.g., mant & newman, 2021) it is valuable, perhaps even crucial, that students be exposed to a range of modern paraprofessional justice careers. establishing and operating the nmwlc required answering the various questions where, when, what, whom, with what priorities and with what ends in mind in reviewed article 77 unique ways, enabling us to advance our understanding of contemporary virtual cle, especially against a backdrop of austerity cuts to services and the evolving nature of justice work as a profession. the north and mid wales law clinic and work placement module the nmwlc includes seven local ca branches (six in north wales plus powys in mid wales) and bangor university. it aims to provide support and advice to lips. for the purposes of the project, lips include people already engaged in a hearing or legal proceedings; people who have a legal issue and approach a service about potential legal action; potential or actual defendants in legal proceedings; and people who may have a legal remedy available but are unaware of that option. advice and support are provided across four categories: 1. early intervention via community navigation: engage people who may have a legal remedy to their problem/s but are unaware of this. resolve the causes of their financial hardship or civil legal problem at the earliest opportunity through skilled triage or generalist advice to diagnose the problems, followed by assistance to prevent the need for court action. 2. later intervention via specialist casework: provide specialist casework to the most vulnerable lips who approach advice agencies about possible action, uncovering all their legal needs to resolve problem clusters before court. reviewed article 78 3. before court: provide advice, guidance, and support to lips to enable them to represent themselves in court: advising on how to prepare any necessary paperwork/court documents, comply with court directions and comport themselves in the court room. review the lip’s own draft documents and advise on the best method for presenting their case. 4. at court: provide legal advice and representation ‘on the day’ via in-court schemes operated or supervised by qualified lawyers. this range of advice provision is more extensive than that formally encapsulated in most university law school modules delivered in partnership with local ca. more specifically, the nmwlc provides generalist advice, and specialist advice and casework in the areas of family law, employment law, and powers of attorney and deputyship (the latter being areas where local demand was identified by ca and partners). student activities include generalist adviser training and volunteering, specialist adviser training and volunteering in the areas of law noted above, research and campaigns activity, the opportunity to become an ican buddy providing emotional support to those going through the court process, public legal education through outreach, and various opportunities to work with project partners (including law firms, and others, providing advice on the day in a court or tribunal). the nmwlc began operating in autumn 2020 when there were covid-19 restrictions across the uk. from autumn 2020 to spring 2021 bangor university teaching was mostly online, large group teaching commenced online in the 2021/22 academic year, reviewed article 79 with small group teaching returning to campus from autumn 2021 and all teaching moving back to campus (with online options where necessary) from early 2022. students were initially introduced to the nmwlc through a bilingual online presentation during welcome week, delivered again at the start of the second of two academic semesters. this includes contributions from ca training managers and specialist lslip caseworkers, university staff, and, as the project progressed, students who had volunteered with the nmwlc. students then have a supportive interview, considering their motivations and suitability for volunteering, the nmwlc roles they are interested in, as well as any needs they might have. this process takes place (from enquiry to commencement of training) within two weeks. the initial training aim is for students to achieve ca general adviser competency, before moving on to support specialist advisers in employment law, family law, powers of attorney and deputyship in the nmwlc. law students follow an adviser learning programme based around a set of online learning modules, supported throughout via telephone, zoom, google meet and group hangouts. students are provided with one-to-one mentoring by an allocated supervisor and given opportunities to attend training provided by, or in association with, external partners. the learning programme is explained to students in advance, noting that training consists of self-study packs, e-learning, podcasts, videos, and courses and webinars. ca have developed various training pathways for law students. all student volunteers are required to commit a minimum of six hours per-week to their training reviewed article 80 (and later to their volunteering) with other pathways of 10 hours and 30 hours of weekly training and volunteering (with the latter option available during vacations). after a period of validation, volunteering with the nmwlc became part of a creditbaring work placement module. learning outcomes are comparatively broad and include reflecting on experiential learning, as well as demonstrating transferable skills such as time management and adaptability. the full module information can be found online (bangor university, 2022). assessment for the module includes students writing a circa 3,500-word reflective report of their experience, in which they are required to address matters such as activities undertaken, skills developed, challenges faced and how they sought to overcome them, and the role and functions of the placement provider in the context of the legal system. by design, students can volunteer with any of the seven local ca partners, however, in the first two years of the project the students’ training was overseen by project coleads ynys môn ca and denbighshire ca. students were divided between these two branches for initial generalist adviser training, they could then volunteer with any of the seven branches, and/or complete further training to volunteer as specialist advisers in the virtual nmwlc. referrals into the nmwlc can be made by any of the participating ca branches, and individuals can self-refer through a dedicated email address, though to manage demand and capacity most self-referrals were on the advice of project partners including charities supporting local communities or people with particular characteristics. as covid-19 restrictions lifted, bangor students began volunteering in person at local ca branches across north wales. from that point the reviewed article 81 nmwlc became more a ‘hybrid’ than a fully ‘virtual’ operation, with community navigation and generalist advice starting to take place in-person, but with specialist legal support, and supervision of students engaging in such, mostly provided virtually. methodology of this study in spring 2020, bangor university began an evaluation of its cle provision, including a review of relevant literature and data in relation to cle, and scoping legal needs and legal services across north wales. the literature and data review informs this study. following development of the lslip scheme, the review was extended to examine partnership models for providing legal support and advice to communities. this study is additionally based on evaluating student experiences of volunteering with the nmwlc, in particular by coding and analysing some of their reflective reports written as part of the assessment for the work placement module. with student consent, and under the auspices of bangor university, college of arts and humanities ethics committee, 13 student reports were coded using a reflexive approach. this involved identifying themes based on the module’s learning outcomes and assessment criteria, alongside considering additional emerging themes, and seeking to make these more concrete through analysing how themes were used within the students’ reports, and the limits and context of their occurrence (clark et al., 2021; webley, 2010). the coding was conducted by the module leader, with the module’s internal moderator examining a sample of six reflective reports against the coding reviewed article 82 scheme. the exercise led to some concretised codes where the frequency of occurrence could be meaningfully quantified, such as employability skills referred to, and other themes to be expressed more qualitatively, such as the impact of the experience on the students’ sense of social justice. in addition to coding students’ reflective reports, the module leader met regularly with ca staff, including the chief executive officers of ynys môn and denbighshire cas, training staff, and lslip project caseworkers. there was also a weekly online drop-in session where law students could discuss their progress, and any concerns or challenges, with the module leader. the views of students not participating in the curricular module were ascertained by way of a focus group, and online free text survey. in an aligned project, from may to july 2021, bangor researcher dr sara closs-davies conducted interviews aimed at evaluating the effects of the covid-19 pandemic at ynys môn ca. as at least half the students volunteering with the nmwlc during the 2020/21 and 2021/22 academic years did so under training and supervision provided by ynys môn ca, the findings of dr closs-davies’ report can be valuably read alongside the current findings on student experiences (closs-davies, 2021). both evaluations have been discussed with ca staff, and further clarification and additional information sought through online meetings and email exchanges where appropriate. reviewed article 83 the moj also undertook an interim evaluation of the lslip projects, and its findings are referred to in this article where relevant to illustrating the wider impacts, opportunities, and challenges of the lslip scheme (moj, 2022b). the following sections are organised around the main if overlapping themes raised across the literature review, student reports, closs-davies’ ynys môn ca report, and the ministry of justice report. these themes are working in partnership and funding; training, supervision, and assessment; employability and personal attributes; remote and online working; and community justice, sustainability, and empowerment. working in partnership and funding the nmwlc is at base a partnership for improving access to justice for lips across north and mid wales. partnership working also characterises developments in social welfare advice provision across wales. following recommendations of the low commission (established by the legal action group to develop a strategy for access to advice and legal support on social welfare law in england and wales) (low commission, 2014), welsh government established a national advice network (nan) in 2017. the nan is responsible for providing expert advice, guidance, and support to the welsh government on how to strategically develop the provision of accessible and good quality information and advice services to people in wales. six regional advice networks (rans) were launched in 2020 each with an independent chair, a steering group (normally including local university representatives), and a membership of regional stakeholders. the initial aims of the rans have been to map reviewed article 84 advice needs and provision and identify gaps; build referral networks between services; combine experiences to identify root causes of common problems; and share best practice and support each other to deliver quality-assured advice (welsh government, 2020). the nmwlc has benefitted from linking into the north wales ran, with nmwlc co-leads being steering group members. all the regional and local lslip projects have operated both within and across existing partnerships, as well as enabling the establishment of new partnerships. as the moj interim evaluation of the lslip scheme notes: “strong communication, trust, rapport and shared information processes have been key to facilitate successful partnership working, particularly for partnerships with a range of advice networks with different cultures and ways of working” (moj, 2022b, 94). the lslip projects appear to have overcome some of the challenges evidenced by earlier partnership and network projects, such as local advice networks (funded across england by the big lottery from 2007 to 2012). earlier initiatives saw organisations sometimes struggling to work together and finding referrals (including electronic referrals) challenging (advice uk & law centres federation, 2012). conversely, the moj evaluation of lslip reports organisations as having been adaptable and able to make effective use of online management and referral systems as well as other technology (moj, 2022b). the lslip projects are also freely formed partnerships, as opposed to, for example, the ill-fated community legal advice centres and community legal advice networks, whose funding criteria was divisive, effectively forcing established providers to expand reviewed article 85 and/or to form consortia to compete for contracts or risk abandoning mainstream social welfare law practice (fox et al., 2011). from the cle perspective, there are different dimensions to partnership working, one is the base partnership between bangor university and ca, and the other is the relationships with broader nmwlc lslip partner organisations, both local, regional, and national. others operating law in the community partnerships have noted the need to maintain good relationships with partners, and the challenges on all sides where students occasionally disengage (king & jones, 2018). as a small law department, an issue for bangor has been encouraging a meaningful number of students to volunteer, whilst also ensuring those who do are sufficiently committed as to be more benefit than burden to external partners. the flexibility shown by ca in developing training routes and volunteering options (discussed further below) has been beneficial in keeping students engaged, but this causes extra work for those partners. in effect, bangor has ‘outsourced’ some cle provision, but does not, at this point in time, financially compensate ca for their work, and whilst the lslip grant aims to enhance ca’s capacity by funding some administrative support and additional case-workers, who can then train and supervise students, this is unlikely to cover the full costs of developing and operating the training pathways and volunteering roles for law students. nevertheless, other non-financial benefits for ca have emerged. association with a university law department, particularly through the moj funded lslip project, has improved perceptions of ca as a professional player in the delivery of advice and support services in a regional legal context. this can be reviewed article 86 evidenced, for example, by the then lord chancellor, robert buckland qc, referencing the project in a session with the senedd cymru/welsh parliament, legislation, justice and constitution committee in february 2021 (senedd, 2021), and through news media including a legal news wales insight piece (legal news wales, 2022). ca co-leads of the nmwlc and lslip caseworkers have attended meetings of the legal wales foundation (a forum convening all the elements of the welsh legal community in wales) and attended a roundtable with legal professionals across wales aimed at establishing a committee to improve collaboration and coordination of pro bono support. from the perspective of students, there is, however, potential for ownership of clinic work to feel compromised when delivery of training and facilitation of workloads are reliant on external partners. nevertheless, as evidenced in their reports, students felt the nmwlc enabled them to engage with a wider range of experiences, including making connections with partner organisations, that led to their obtaining paid work experience with law firms, and conducting research and campaigns activity with partner charities including in relation to discrimination, domestic violence, lgbtq+ communities, and advice seeking behaviours across the generations. online communication, discussed further below, has made engagement with these wider experiences more obtainable, but much of this connectivity was due to the nature of the project itself as a broad partnership to support lips through all stages of their journey, as opposed to digital delivery methods. reviewed article 87 an issue for the nmwlc, has been that the partnership initially developed in response to a specific funding call. this means there are funder requirements to comply with, and the future of the project, at least in its initial form, is uncertain. the extent of data collection and reporting required by the moj has been particularly burdensome. whilst this is valuable for research purposes, the administrative work required to collect data has impacted staff time dedicated to training students and supporting client-facing work. the moj interim evaluation of lslip saw grantees sharing concerns that stable, longer-term funding was needed to offer their skilled advisers the job stability and security needed to retain them (moj, 2022b, 106). with insecure funding, managing expectations is important, and this could be problematic where volunteering with the nmwlc has been embedded into the curriculum (though as an optional work placement module where various other training and work experiences also meet the learning outcomes). the initial funding period ended in june 2022. as with other lslip grantees, the nmwlc was only notified of a funding extension – to september 2022 – towards the end of the initial period. at the time of writing the moj has announced a new help accessing legal support funding scheme, with largely the same aims as the lslip projects, including improving and sustaining access to early legal advice and support. for many existing lslip grantees, this stream of funding requires an additional full bid, with funds having to be spent by 31 march 2023. this provides a further six months of funding, for which organisations already having established and delivered partnership services will have to submit an additional bid, and potentially do so reviewed article 88 against new competitors. this context makes the nmwlc vulnerable to the same challenges faced by the social welfare law advice sector generally, of short-term funding streams, often requiring grantees to propose some innovative or novel approach, or new partnership, as a condition of funding (these issues around funding have been recognised for some time, including by the low commission, 2014). training, supervision, and assessment in reflecting on nmwlc training, some students found the training to be longer and more in-depth than anticipated. in their own words: “the process of becoming a volunteer for citizens advice and the north and mid wales law clinic is more demanding than i expected and a much longer process of training than first anticipated”; and “the length of the training process was challenging”. for students who could only commit the minimum six hours a week required for training, and especially for those who could only commit to the minimum 70 hours required for the work placement module, they inevitably had fewer experiences of specialist advice and casework, and less client-interaction, and student frustrations on this point were evident. in contrast to other ca partnership modules, bangor’s work placement module does not require students to complete generalist adviser training, whether out of term time or otherwise, before commencing the curricular module. on the northumbria law in the community module students complete an online training course six weeks before starting at ca to “hit the ground running” (bengtsson et al., 2021). the work reviewed article 89 placement module at bangor operates on a more flexible basis. students can begin volunteering with the nmwlc (outside the curriculum) at any time during their studies (though attempts are made to group students together to start training either at the beginning of semester one, beginning of semester two, or during the summer vacation). the work placement module requires 70 hours placement experience to be completed (and evidenced) and assessment involves reflecting on activities and critically evaluating the role and functions of the organisation within the legal system. this is different to other ca partnership modules where assessment is based on completing adviser training and/or being assessed for competence in particular skills such as client interviewing and taking attendance notes (bengtsson et al., 2021; king & jones, 2018). the student body at bangor is diverse, including international students, mature students, and students who live at home along the north wales coast. there would be challenges for many were they expected to complete training as a condition of joining the module, and bangor university generally operates on the principle that even optional modules should be open to all. reasonable adjustments are made where appropriate, both in relation to module delivery and assessment, and in association with ca with respect to training, this is especially important to ensure respect for protected characteristics under the equality act 2010. training itself can be adjusted, but students can also choose specific roles, for example a very small number of students engaged in only research and campaigns activity. students did not register any dissatisfaction, either in their reflective reports, in module evaluation or otherwise, about not being directly assessed by the university on skills or reviewed article 90 competencies gained. they noted that they were “assessed” regularly as part of their general adviser training, where relevant, and at the end of other optional training opportunities provided by partners, and that they found this beneficial, including the option to retake components. to address students’ desire to gain more client-facing experience even within limited training hours, the nmwlc staff developed a specific project, lasting power of attorney adviser, for students wishing to gain legal client-facing experiences as soon as possible, but who were unable to commit to longer training hours. students were able to complete legal documentation under supervision and gained a more immediate sense of having helped clients with a specific task. thought could be given in future to developing different versions of the curricular module, such as an option with double the credits of an ordinary elective so that students can spend more time training and volunteering within the framework of their degree programme. this could be valuable as working with the nmwlc can constitute qualifying work experience (qwe) for the purposes of qualifying as a solicitor under the solicitors qualifying examinations (sqe) route. a key aim of the nmwlc was to expose students to a range of social problems, with corresponding opportunities to consider what might be seen as less attractive areas of legal specialism. students found welfare benefits law particularly challenging both in scope, complexity, and frequent change. as one put it: “i particularly struggled with the module related to benefits”. another stated: reviewed article 91 …social welfare systems or regulations of it, such as universal credit, constantly change, so that i occasionally had to spend time keeping up with it to give upto-date advice. some of them were surprisingly complicated to understand, but still, clients were continually coming to ask for help to understand those systems or rights that they are entitled to. it is notable that this important and challenging area of law is not included within the sqe. although social welfare law was not a specific requirement of the previous legal practice course, concerns have been expressed that the sqe represents a missed opportunity. victoria speed, director of pro bono and corporate social responsibility at bpp university law school, argued that “there are some glaring omissions in the list of practice areas covered” by the sqe, with potential to “alter the landscape of legal services in social welfare law for years to come” (speed, nd). academics from ucl’s centre for access to justice have reached similar conclusions (knowles & kinghan, 2020). a learning outcome of the bangor work placement module was for students to reflect on what worked well in their experience, with a commonly cited factor being supportive engagement with their supervisor. students said: “consistent help from my supervisor and sufficient training materials have maintained my motivation for my work throughout” and “i was always able to contact my supervisor for support…this allowed me to regularly reflect upon my learning experience”. nmwlc staff, advisers, and supervisors, were described as the “real heroes” bringing reviewed article 92 to life the principles of the service. students noted that weekly one to one google meet with their supervisor provided a consistent opportunity to reflect on work and plan tasks. they gave examples of supervisors assisting them during periods of high workload with their studies, or at times when they were facing other difficulties such as illness. supervisors worked with students to adjust training plans and client-facing workloads, to agree priorities, and to support student well-being. students valued training in client-facing work the most, on topics such as interviewing and taking attendance notes. students also valued the opportunity to observe experienced advisors giving advice over the telephone and online, and the phased and supported introduction to giving advice themselves. as one put it: “the real development and practical appliance of the skills which we learned about were done by participating in communities of practice, where our role and responsibilities as trainees gradually increased as we learned more from those above us”. employability and personal attributes an aim of the nmwlc project was to provide access to law work experience, increasing student employability after graduation. most definitions of employability reference skills, abilities, and qualifications, as well as personal qualities and work behaviours (e.g., yorke, 2006). notably, some students reflected that their main motivation for volunteering with the nmwlc was their inability to secure placements with private law firms, having sent cvs and expressions of interest to firms in north wales, cheshire and further afield, often with no response, or having reviewed article 93 been informed that firms were not offering work experience. this lack of opportunities seemed to stem both from initial office closures due to covid-19, but later also from the challenges, particularly for smaller local firms, of supervising students after introducing more flexible and remote working for their staff. larger local and regional firms have expanded their reach to offer online work experience to students from as far afield as southeast england, increasing competition and reducing the offering to local students. weakening links between local/regional law firms and their closest universities may be a wider potential impact of virtual work experience. the skills and attributes referenced by the nmwlc students can be loosely divided into transferable skills, legal skills, and personal qualities. all students noted they had been exposed to a range of online learning platforms and approaches, and other tools and apps such as benefits calculators, with most considering their technological capability had developed as a result. as one student reflected: “the opportunity to learn how to use an online work system such as, diary, case recording and reporting, has been a particular gain for me as i had no experience of this beforehand”. students also mentioned improving their telephone skills, e.g., through being given “guidance on techniques to use when speaking to clients on the telephone”, and that “training conducted on client communication through various sources including telephone, email, letters, webchat and face-to-face was also relevant to greater future employment skills”. students also reflected on improving their problem-solving and critical thinking. reviewed article 94 in terms of legal skills, students reflected on having learnt about maintaining client confidentiality, acting ethically and in accordance with relevant data protection and privacy laws. the majority felt the experience was directly relevant to applying their legal knowledge including in areas of law they were currently studying, such as family law, employment law, consumer law and even criminal law. as one student said, “i have gained experience in community care, family and employment law…i now understand how to prepare a case for court and have acquired administrative skills by completing documents including n1 claim forms”. students reported that the experience gave them an insight into areas of law that are not part of compulsory teaching on most undergraduate degrees, in particular the law relating to debt, benefits, and tax. most students reflected on developing their client interviewing skills, and how this also required them to adapt to client needs. some students, particularly those managing their own caseloads, developed their abilities to draft professional letters and emails. students reflected on learning how to use casebook software to record information about clients and their problems and using advisernet. reflecting on the personal attributes, all students mentioned confidence, linking growth in confidence to training in client-facing skills. there are many examples of research highlighting the impact of cle on student confidence (e.g., cantatore, 2018; wortham et al., 2012) including in the context of ca partnerships (king & jones, 2018). student comments are indicative: “after i completed my training, i felt a sense of confidence and achievement at learning a new skill”; “training has developed a reviewed article 95 number of my skills and provided me with the confidence to deal with clients by myself”; “as my experience grew, so did my confidence and my skills which led to me handling my own client caseload”. across the lslip partnerships, the moj interim evaluation found that grantees attributed an increase in clients helped “to the successful training and upskilling of their staff and volunteers, which has enabled their organisation to triage clients more effectively and provide more in-depth advice at an earlier opportunity” (moj, 2022b, 32). the evaluation also concluded that grantees have been able to increase the delivery of early advice as “lslip funded specialist caseworkers have provided training for volunteers and staff, increasing the volumes, quality and effectiveness of initial advice and triage activity” (moj, 2022b, 39). remote and online working the nmwlc, as a partnership with ca, allowed bangor to bypass many of the logistical issues associated with establishing a virtual clinic as the it systems used were those already developed and adapted by ca, including online meeting platforms. ca were able to loan students laptops and mobile phones to ensure their clinic work was kept separate from their personal devices. ca staff and volunteers, including nmwlc students, are only permitted to use organisationally owned it equipment. platforms are password protected (numerous times), and hardware is required to be stored and locked away when not in use. in their reflective reports, some students expressed frustration with the extent of password protection, including reviewed article 96 the need to have different passwords for different systems, but these were necessary working practices. ca operates a cloud-based platform for adviser training, and for accessing ca’s client relationship management system (crm). all staff undertake mandatory annual gdpr training, with such training, and other modules on confidentiality and ethics, being compulsory for law student volunteers. staff and volunteers are only permitted to work remotely where they have a private room in which to do so. all information imparted via whatsapp or over the phone is required to be recorded within the crm and then deleted from devices. generic emails are used for communication with clients, rather than staff organisational email addresses. closs-davies’ report on the effects of the covid-19 pandemic at ynys môn ca paints a largely positive picture of remote working. she finds that all staff had access to necessary equipment, and that use of whatsapp messaging for staff groups to keep in touch, to share resources when policy, rules and practice were changing frequently, and to engage with clients, has been “immensely beneficial” (closs-davies, 2021, 5-8). she also found that for many clients the accessibility of the service increased by the offer of different modes of communication, though she also notes staff concerns around losing touch with existing clients who lack digital literacy or who are physically impaired and unable to communicate effectively over the telephone or by text message (closs-davies, 2021, 8). in their reports, nmwlc student volunteers critically reflected on the impact of the covid-19 pandemic on the delivery of social welfare law advice, the challenges of online advice delivery particularly for certain client groups, and the challenges for reviewed article 97 volunteers. their comments echoed those reported in a pandemic welfare advice survey, where 90% of adviser respondents thought the delivery of advice remotely was either very or fairly effective, but nearly half thought this mode of delivery affected their relationship with their clients, and most also believed that clients had been affected (creutzfeldt and sechi, 2021). however, closs-davies records ynys môn ca staff citing improved relationships with clients, particularly where staff have provided services in gradual and piecemeal approaches over time, with some clients correspondingly playing a more active role in their case, whereas in-person advice appointments might have been brief and heavily dependent on adviser input (clossdavies, 2021, 7). students, on the other hand, appeared to experience difficulties with remote and online working, including that navigating a range of online sources proved more challenging than anticipated. dependence on technology increased the length of training for some participating students as they needed to become confident in using online applications as well as in other key skills. this led to feelings of disappointment about lack of inter-action with real clients; a lack of interaction sometimes exacerbated by clients not attending arranged online meetings, in part due to the clustered problems they were facing, and in part due to their own challenges with using technology. for some students finding a suitably private place to take part in meetings and/or engage with clients around their university studies was difficult, especially once academic classes moved largely back on campus, and particularly for students living reviewed article 98 some distance from the university and factoring in travel time. in future, the university should be able to provide quiet, private spaces for students to conduct client work. whereas ca staff found a piecemeal, ‘little and often’ approach to client support such as through whatsapp beneficial, this tactic was more difficult for university students, many of whom generally preferred volunteering within clearly timetabled hours, ideally set by themselves, to manage their various commitments. ca staff also noted the increased use of whatsapp, text messaging, and phone calls led to some clients becoming (too) familiar with caseworkers. it is important that students are properly supported and safeguarded when providing services through these methods of communication, and that work-life balance is well managed. closs-davies’ report found that ca put the well-being of their staff at the forefront of their work, with weekly well-being wednesday sessions, twice-daily staff zoom meetings and by adapting staff weekly reports to become more discursive and less quantitatively focused (closs-davies, 2021, 12). some students reflected that the cohort of nmwlc volunteers were able to bond and support each other, including through well-being wednesday, regular google hangouts and whatsapp groups. however, the most significant challenge for students was the remote nature of the experience. although the majority saw value in the flexibility of online working, many considered this had limited their opportunities to feel fully part of the workplace. as one student put it, the remoteness “badly impacted the placement as it reduced my motivation” and that as a result “no sense of belonging to a workforce community within a charitable organisation” was developed. another explained: “remote reviewed article 99 working caused difficulties for me…i did not feel quite as connected to my colleagues as i would have done had we been working together in person. though the remote working was good in some ways, for example saving on travel time”. another said, “doing this placement during a pandemic is harder [and] contributes to the feeling of not being ready and capable to advise the public”. perhaps a key difference here is that ca staff have already formed relationships and are experienced in their roles, but are adjusting to new modes of working, whereas student volunteers are developing relationships with each other, with university staff, and with ca staff, as well as training in sometimes unfamiliar areas of law and practice, all online and/or over the phone. the experience of the nmwlc students suggests the absence of any physical in-person interaction is a significant barrier for some volunteers in feeling fully part of an initiative. further research could examine whether the lack of connection and lack of belonging some nmwlc students felt was in part due to their perceptions of the role of ca, and whether such feelings are as evident with other forms of online cle; especially as students linked the remoteness of training with not feeling ready to engage with clients in real time, even after observing online and telephone advice delivered by their supervisors. research with ynys môn ca found that some ca staff would welcome a hybrid approach of working between home and the office, and early indications from students volunteering in-person with local ca branches is that they would prefer something similar, enabling them to connect physically in-person with staff and clients, but also allowing them to expand their experiences, and their volunteering hours, online. reviewed article 100 community justice, sustainability, and empowerment a key aim of the nmwlc lslip partnership is for students to develop an understanding of broader social issues relating to well-being, and for participants to be more willing to contribute to the wider community and encouraged to contribute to pro bono services beyond the lifetime of the project. social justice and sustainability (in its various forms) are central to bangor university, which was founded in 1884 as a direct result of a campaign in the late nineteenth century for higher education provision in wales. funds were raised by public subscription to establish a college of university rank in bangor. an important feature of its foundation was the voluntary contributions made by local people, including farmers and quarrymen, from their weekly wages. the quarrymen’s dream of social justice through education remains central (roberts, 2009). when asked to reflect on why they volunteered with the nmwlc, some students noted their desire to “make a positive difference in the lives of others” and to “contribute something positive back into my community”. however, these students were in the minority, and were more likely to cite experience of family members, friends or others who had received advice from ca, and/or to note their own socioeconomic background and life challenges as motivating them. similarly, the legal aid practitioners group 2021 legal aid census found that students who personally experienced injustice or poverty, or witnessed or heard about injustice, were influenced by their experiences to become legal aid practitioners (denvir et al., 2022). reviewed article 101 in writing about the nmwlc connection to the legal system, all students referred to cuts in legal aid and laspo, and their impacts on people seeking advice. students cited “equal access to justice as a fundamental element of the rule of law”, and how services such as the nmwlc have been developed to “fill gaps” where laspo has had a “devastating impact upon societies’ access to justice”. students referred to social welfare advice services as providing a “safety net” for those on low incomes and as a vital institution for “safeguarding the rule of law” in a society where it has become “practically impossible” for ordinary people to access legal advice and to access the courts. as one student put it: “citizen’s advice has always aimed to help people and make a fairer justice system”, but that the laspo cuts undermined the “universal right to justice”. a minority of students perceived a disconnect between the lslip project aims of providing early legal help through community navigation, generalist and specialist advice, and their career goals to become lawyers. some also saw encouraging client proactivity as at odds with their perception of how advice should be given. other students reflected much more positively on “empowerment”, especially as a guiding principle of ca aimed at helping people understand their legal rights. this approach empowers clients to have more voice, influence, and agency in resolving their own problems, with access to information, support, and casework where appropriate. students reflected on the clustering of social welfare legal issues (identified e.g., by pleasence et al., 2004) and the importance of holistic advice that could be offered through the nmwlc, where advice can be given on a range of issues affecting a client, reviewed article 102 from benefits to debt, housing, and family problems, in addition to legal support. as one student noted: “it was evident that there can be several legal issues which may revolve around a particular client”. students also reflected on the social justice aims of ca and the nmwlc. as one put it, ca “has developed and touched many key issues in the society by not just providing free advice and information to the citizens but also by influencing policymakers”. examples given included in relation to debt issues, housing law and employment law initiatives, as well as campaigns relating to equality and nondiscrimination. ca was seen as particularly effective at demonstrating to government the issues people in communities are facing and how fixing these issues can save significant sums of public money. other research has found that law students volunteering with ca show a particular aptitude for identifying social policy issues that has been beneficial for ca partners (king & jones, 2018), and this was also evident with nmwlc student volunteers. the project also has some shades of so-called “rebellious lawyering” as student advisers and staff see client issues as evidence of potentially community-wide problems (owen, 2022), and the empowerment approach of ca encourages clients to advocate for themselves. from the evidence in this study, it can be argued that the nmwlc project arrived at an organic balance between social justice and educational cle paradigms. the first year was catalysed by the availability of funding to address identified regional access to justice needs, and student engagement was voluntary, by the second year a curricular (albeit elective) module had been developed which rewarded students who reviewed article 103 demonstrated a commitment to volunteering, that in turn led to higher levels of commitment and longer volunteering hours, which snowballed into students benefitting from a broader range of experiences and developing more extensive skills and capacities. developing the nmwlc as a lslip project has been a means to achieve the simultaneous pursuit of both educational and social justice aims without sacrificing community service to pedagogy. here the students’ reflections are valuable: “this experience has “enhanced my professional values, administrative and legal skills whilst instilling a sensitivity to the concept of justice within me and have allowed me to put legal education into practice, deepening my understanding of the legal environment which awaits me upon graduation”. “as someone who has always been passionate about volunteer work, the clinic allowed me to apply my passion in a way which benefits my future career path. the skills i have learned and developed are invaluable, and i believe have played a key role in securing a vacation scheme…” “one of the things i enjoyed about my work experience as a trainee advisor at the north and mid wales law clinic was that i was able to recognise that in our society we have many complex issues”. reviewed article 104 “being able to provide help and support gives a feeling of closeness to the weakest of our society, but also the perception of contributing to social justice”. “…not only is researching into policy campaigns useful to my future employment but has also made me eager to improve a better standard for not just my local community but nationally”. “i feel as though without volunteering i would not be as socially aware or as tolerant”. in addition to social justice and empowerment, sustainability is also important to bangor university, whose 2030 strategy is entitled, a sustainable world for future generations, and is founded on the seven well-being goals in the well-being of future generations (wales) act 2015. the strategy states: “the university will continue to support student volunteering activities to promote engagement between students and the community contributing towards a wales of cohesive communities”; such communities being “attractive, viable, safe and well-connected” (well-being of future generations (wales) act 2015). law clinics have been recognised as having an important role to play in relation to communities of practice around well-being under the future generations framework (owen, 2020). in particular, the community engagement work of clinics can contribute to well-being plans which set out local reviewed article 105 priorities and actions for a five-year period to improve economic, social, cultural, and environmental well-being. in addition to improving sustainability as understood through various compartments of well-being, law clinics can also contribute to the sustainability of the legal profession, and the wider social welfare advice profession. the 2019 commission on justice in wales found that: “the age profile of solicitors combined with the very small number of training contracts available in wales each year are indicators that the welsh solicitors’ profession risks significant demographic pressures over the next few years” (commission on justice in wales, 2019, para 9.11). it also concluded that few firms in wales practise social welfare law, and that whilst the third sector is endeavouring to fill the void created by the disappearance of legal aid, this challenge cannot always be met by voluntary services (commission on justice in wales, 2019, para 3.9). through discussions with the solicitors regulation authority, the activities completed by students in the nmwlc constitute competencies set out in the statement of solicitor competence and could therefore be confirmed as qwe for the purposes of qualifying as a solicitor on a case-by-case basis; though there can be practical challenges in confirming qwe outside the traditional law firm environment (roper et al., 2020). initiatives like the nmwlc contribute to efforts to retain legal talent in wales. providing more partnership training opportunities in wales could also counteract qwe’s potential to entice graduates to leave as the diversity of routes to qualification in england also expands. reviewed article 106 concluding reflections as a model for advice services and cle, a key element of the nmwlc has been the development of a partnership beyond the lead organisations. rather than being enforced through funding conditions this has grown up organically based on local conditions and connections. the use of technology has also developed organically from the bottom-up, drawing on existing and developing expertise and experiences of the advice sector, shared both through nmwlc partnership events, the north wales ran, and the wider atjf network for justice. hundreds of people have been helped by the nmwlc and over 50 students have volunteered in various ways in the first two years. most of the advice provided has been at early intervention stage, followed by later intervention via specialist advice. the holistic nature of the project to support and advise lips has changed many of the students’ perceptions, to the extent that they are much less likely to equate access to justice solely with the work of solicitors and barristers and participation in formal legal processes; subsequently expanding their understanding of their career options in the contemporary legal training and legal services context. students have a much greater appreciation of “empowerment” and enabling people and communities to help themselves with some elements of their justice problems, as well as being aware that this is increasingly achieved or supported using new technology. these developments are part of a global trend, whose elements also include a greater appreciation of sustainability in all its forms, both economic and well-being based, reviewed article 107 with the nmwlc evaluation then demonstrating important learning across legal jurisdictions. reference list access to justice foundation 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(2019). justice in wales for the people of wales. https://gov.wales/commission-justice-wales-report creutzfeldt, n., & sechi, d. (2021). ‘social welfare [law] advice provision during the pandemic in england and wales: a conceptual framework’, journal of social welfare and family law vol 43, p.153. https://www.tandfonline.com/doi/full/10.1080/09649069.2021.1917707 denvir, c., kinghan, j., mant, j., newman, d., & aristotle, s. (2022). we are legal aid: findings from the 2021 legal aidi census: https://lapg.co.uk/wpcontent/uploads/we-are-legal-aid_findings-from-the-2021-legal-aidcensus_final.pdf edmiston, d., robertshaw, d., young, d., ingold, j., gibbons, a., summers, k., scullion, l., baumberg geiger, b., & de vrues, r. (2022). ‘mediating the claim? how ‘local ecosystems of support’ shape the operation and experience of uk social security’, social policy & administration, p.1. https://onlinelibrary.wiley.com/doi/full/10.1111/spol.12803 fox, c., moorhead, r., sefton, m., & wong, k. (2011). ‘community legal advice centres and networks: a process evaluation’, civil justice quarterly vol 30 (2), p. 204. ifan, g. (2019). public spending on the justice system for wales. wales governance centre, cardiff university: https://www.cardiff.ac.uk/__data/assets/pdf_file/0005/1549094/public-spending-onthe-justice-system-for-wales-final.pdf jones, e., ryan, f., & mcfaul, h. (2018). ‘connectivity, confidentiality and confidence: key issues in the provision of online pro bono activities’, international journal of clinical legal education vol 25, p.48. https://www.northumbriajournals.co.uk/index.php/ijcle/article/view/722/1110 king, c., & jones, d. (2018). ‘cui (pro) bono? working in partnership: a possible blueprint for the future of clinical legal education’ in thomas, l., vaughan, s., malkani, b., & lynch, t. (eds). reimagining clinical legal education. oxford. hart publishing. knowles, r., & kinghan, j. (2020). ucl centre for access to justice comment on impact of new sqe on social welfare law for the times. https://www.ucl.ac.uk/laws/news/2020/feb/ucl-centre-access-justice-commentimpact-new-sqe-social-welfare-law-times https://gov.wales/commission-justice-wales-report https://www.tandfonline.com/doi/full/10.1080/09649069.2021.1917707 https://lapg.co.uk/wp-content/uploads/we-are-legal-aid_findings-from-the-2021-legal-aid-census_final.pdf https://lapg.co.uk/wp-content/uploads/we-are-legal-aid_findings-from-the-2021-legal-aid-census_final.pdf https://lapg.co.uk/wp-content/uploads/we-are-legal-aid_findings-from-the-2021-legal-aid-census_final.pdf https://onlinelibrary.wiley.com/doi/full/10.1111/spol.12803 https://www.cardiff.ac.uk/__data/assets/pdf_file/0005/1549094/public-spending-on-the-justice-system-for-wales-final.pdf https://www.cardiff.ac.uk/__data/assets/pdf_file/0005/1549094/public-spending-on-the-justice-system-for-wales-final.pdf https://www.northumbriajournals.co.uk/index.php/ijcle/article/view/722/1110 https://www.ucl.ac.uk/laws/news/2020/feb/ucl-centre-access-justice-comment-impact-new-sqe-social-welfare-law-times https://www.ucl.ac.uk/laws/news/2020/feb/ucl-centre-access-justice-comment-impact-new-sqe-social-welfare-law-times reviewed article 109 law society of england and wales. (2022). legal aid deserts. https://www.lawsociety.org.uk/campaigns/legal-aid-deserts law society of england and wales. (2020). annual statistics report 2020. https://www.lawsociety.org.uk/topics/research/annual-statistics-report2020#download lawworks. (2020). lawworks law clinics network report 2020. https://www.lawworks.org.uk/solicitors-and-volunteers/resources/lawworks-clinicsnetwork-report-2020 legal news wales. (2022). early intervention in north & mid wales: the value & future of a unique partnership. https://www.legalnewswales.com/features/earlyintervention-in-north-wales-the-value-future-of-a-unique-partnership/ low commission. (2014). tackling the advice deficit: a strategy for access to advice and legal support on social welfare law in england and wales. legal action group. https://www.lag.org.uk/about-us/policy/the-low-commission-200551 mant, j., & newman, d. (2021). ‘vulnerability, legal need and technology in england and wales’, international journal of discrimination and the law vol 21(3). https://journals.sagepub.com/doi/full/10.1177/13582291211031375 mccrimmon, l., vickers, r., & parish, k. (2016). ‘online clinical legal education: challenging the traditional model’, international journal of clinical legal education vol 23, p.78. https://www.northumbriajournals.co.uk/index.php/ijcle/article/view/565 mcfaul, h., hardie, l., ryan, f., lloyd bright, k., & graffin, n. (2020). ‘taking clinical legal education online: songs of innocence and experience’. international journal of clinical legal education, vol 27, p.6. https://journals.northumbria.ac.uk/index.php/ijcle/article/view/1052 ministry of justice. (2019). legal support: the way ahead: an action plan to deliver better support to people experiencing legal problems. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attach ment_data/file/777036/legal-support-the-way-ahead.pdf ministry of justice. (2022a). legal aid statistics. https://www.gov.uk/government/statistics/legal-aid-statistics-january-to-march-2022 ministry of justice. (2022b). legal support for litigants in person mid-grant report. https://www.gov.uk/government/publications/legal-support-for-litigants-in-personmid-grant-report reviewed article 110 nicolson, d. (2016). ‘“our roots began in (south) africa”: modelling law clinics to maximise social justice ends’, international journal of clinical legal education vol 23, p.88. https://www.northumbriajournals.co.uk/index.php/ijcle/article/view/532/922 owen. r. (2022). ‘rebellious lawyering theory, sustainability and clinical legal education’ in madhloom, o., & mcfaul, h. (eds). thinking about clinical legal education: philosophical and theoretical perspectives. abingdon. routledge. owen, r. (2020). ‘sustainability and the university law clinic’, international journal of clinical legal education vol 27, p.77. https://northumbriajournals.co.uk/index.php/ijcle/article/view/1040 pleasence, p., balmer, n., buck, a., o’grady, a., & genn, h. (2004). ‘multiple justiciable problems: common clusters and their social and demographic indicators’, journal of empirical legal studies vol 1, p.301. preložnjak, b., & brozović, j. (2016). ‘the financial challenges of clinical legal education: an example from a zagreb law clinic’, international journal of clinical legal education vol 23, p.136. https://www.northumbriajournals.co.uk/index.php/ijcle/article/view/526/968 public law project. (2018). evidence to the commission on justice in wales. https://gov.wales/sites/default/files/publications/2018-08/submission-from-publiclaw-project.pdf roberts, d. (2009). bangor university, 1884 – 2009. cardiff. university of wales press. roper, v., dunn, r., & kennedy, v. (2020). ‘clinical legal education as solicitor qualifying work experience’ in thomas, l., & johnson, n. (eds). the clinical legal education handbook. ials open book service for law. https://library.oapen.org/bitstream/handle/20.500.12657/39720/9781911507178.pdf?se quence=1&isallowed=y ryan, f. (2020). ‘a virtual law clinic: a realist evaluation of what works for whom, why, how and in what circumstances?’ the law teacher vol 54, p.237. sandefur, r. (2019). ‘access to what?’ daedalus vol 148(1), p.49. https://direct.mit.edu/daed/article/148/1/49/27247/access-to-what senedd cymru, the welsh parliament. (2021). record of proceedings, legislation, justice and constitution committee. https://record.senedd.wales/committee/11065#c357599 reviewed article 111 speed, r. (nd). the impact of sra’s sqe proposals on social welfare lawyering. https://probono.bppuniversity.ac.uk/blog/the-impact-of-sras-sqe-proposals-onsocial-welfare-lawyering/ thanaraj, a., & sales, m. (2020). ‘lawyering in a digital age: reflections on starting up a virtual law clinic’ in thomas, l., & johnson, n. (eds). the clinical legal education handbook. ials open book service for law. https://library.oapen.org/bitstream/handle/20.500.12657/39720/9781911507178.pdf?se quence=1&isallowed=y thomas, l., vaughan, s., malkani, b., & lynch, t. (eds). (2018). reimagining clinical legal education. oxford. hart publishing. webley, l. (2010). ‘qualitative approaches to empirical legal research’ in cane p., & kritzer, h. (eds). the oxford handbook of empirical legal research. oxford. oxford university press. weinberg, j. (2021). ‘preparing students for 21st century practice: enhancing social justice teaching in clinical legal education’, international journal of clinical legal education vol 28, p.5. https://www.northumbriajournals.co.uk/index.php/ijcle/article/view/1127 welsh government. (2020). written statement: regional advice networks. https://gov.wales/written-statement-regional-advice-networks wortham, l., klein, c. f., & blaustone, b. (2021). ‘autonomy-mastery purpose: structuring clinical courses to enhance these critical educational goals’, international journal of clinical legal education vol 18, p.105. https://www.northumbriajournals.co.uk/index.php/ijcle/article/view/2 yorke, m. (2006). employability in higher education: what it is what it is not. the higher education academy. https://www.ed.ac.uk/files/atoms/files/hea-learningemployability_series_one.pdf practice report 109 the shape of you, or in other words, why teach entrepreneurial awareness as a clinical attribute? james marson, sheffield hallam university, uk and katy ferris,* the university of nottingham, uk abstract commercial law clinics are not a new phenomenon, and indeed in this very journal reports and academic commentary have been presented which identify and explore the nature, formation and operation of such clinics.1 however, these contributions focus on how clinics and their student volunteers can help commercial enterprises and start-up ventures with various legal issues they may encounter. clearly, the need for such clinics and the value they provide to the students and community are immense. where the clinical offer outlined in this report differs, and on which we hope a meaningful contribution to the body of scholarly knowledge is made, is in using a clinic setting with a simulated corporate client to operate two (elective) * the authors would like to thank the reviewers for very helpful comments and advice in a previous draft of this report. errors and omissions remain our own. 1 see collins, d., klotz, e., & robinson, b. (2016). start-ed: a model for commercial clinical legal education. international journal of clinical legal education, 23(5) https://doi.org/10.19164/ijcle.v23i5.566. https://doi.org/10.19164/ijcle.v23i5.566 international journal of clinical legal education the shape of you 110 modules that enable the students to gain a thorough appreciation of those issues which underpin the formation and operation of a corporate structure. a simulated law firm is the setting through which the modules operate, albeit most of the tasks and issues raised in the modules would equally apply to other professions. by using the simulated client approach we are able to guide the students in helping navigate the client through every aspect of the journey of the business – its inception, the legal sector in which it will operate, its mode of incorporation, its clients and the generation of business, legal policies and issues likely to be faced in respect of running a business, its marketing and advertisement, professional body regulation and compliance, the financing of the business, and an appreciation of the stakeholders (and underlying philosophies) with whom the business and its personnel will engage. this clinical perspective allows the students to proactively develop strategies to navigate the owner through myriad complexities, whilst gaining valuable feedback regarding the efficacy of their decision-making and being empowered to adopt revisions to accommodate numerous changes in the professional, legal and financial environments. the main aim of this clinical experience (which we describe in section 3) is to develop in the students a commercial awareness and understanding of what is required to be an entrepreneur in a modern legal service setting. this requires moulding their ‘shape’ as a legal graduate. practice report 111 1. introduction law students in the uk have largely been freed from the constraints of the qualifying law degree and associated issues during the ‘academic stage’ of their education, at least with regards to their choice of subject/module learned and work-based learning opportunities in the curriculum. this has had, albeit recent, implications for both the students and educators. education institutions have been provided with the scope to be considerably more creative about their offer to students,2 resulting in modules which focus on the potential ‘shape’ of graduates.3 the ‘shape of lawyers’ as graduates generally refers to their skills, and in particular their understanding of commercial and entrepreneurial matters, along with an appreciation of law firms as businesses. obviously, commercial awareness underpins all business operations; knowledge of the environment and of the clients, competitors and social, economic and technological dimensions are all factors which impact upon a business and its decision-making. yet it has not always been clear that law students and those who graduate and proceed (at least until recently) to the ‘practice’ component of their education through the legal practice course, were particularly well versed of this aspect of law firms to whom they sought training contracts and/or employment.4 2 see bowyer, r. (2019). regulatory threats to the law degree: the solicitors qualifying examination and the purpose of law schools. law and critique, 30(2), 117. 3 madison, m. (2020). the shapes and letters of the modern lawyer. future law works. https://madisonian.net/2020/08/03/the-shapes-and-letters-of-the-modern-lawyer/. 4 baird, n., & caldwell, j. (2016). how ‘work-ready’ are today's law graduates? the views of 15 city employers. new zealand law journal, 10, 390. international journal of clinical legal education the shape of you 112 despite the significance of commercial awareness as a desirable quality from the perspective of both employers and graduates,5 it has often been omitted as a discrete module or an aspect of compulsory training in undergraduate law courses. this is not to say that universities have excluded such courses from the reach of students,6 rather many universities direct students to dedicated employability directorates7 or identify the significance of an understanding of commercial awareness following formal study of a law degree and/or following graduation. leaving this important skill to a student when applying for employment or preparing for a job interview is wrong. it leaves the student/graduate with a gap in their performance which great knowledge of their discipline or a fundamental understanding of legal principles, theory and doctrine may not remedy. it is necessary at this point to acknowledge that universities will often teach commercial law as a discrete topic through an elective module. however, this is based on the legal issues affecting businesses and does not, of itself, intend for the personal development of commercial awareness of those students studying this topic. law clinics in the university sector in the uk will ensure their students have access to the fundamental lawyering skills including advocacy, interviewing, mooting 5 and certainty beyond graduates who intend to practise law given the majority of law graduates gain employment outside of this job-type. 6 a commercial awareness module has been delivered at the university of birmingham as part of its personal skills award. 7 university college london and university of bristol have dedicated career resources portals to which students are directed. practice report 113 and negotiation, leaving wider skills’ development available through experience in pro bono law clinics.8 here, any commercial awareness the students derive would depend on the nature of the clinic itself,9 the direction afforded to the programme through the supervisors, and the serendipity of particular aspects of commercial awareness inherent in the clinical provision transferring to the student through some form of legal osmosis. but these skills, whilst of course being of the upmost value to students in their development, are not the same as commercial awareness. knowing how to interact with clients, to gain relevant information and being able to tease out the relevant information whilst maintaining the trust and confidence of the client10 is not the same as a sectoral appreciation of the law firm and its geographic and intellectual purview. what is being discussed in this practice report is how we have taught and delivered law modules for students studying a law degree which is fundamentally concerned with developing knowledge and appreciation of the commercial dimension to law firms as a business. 2. what’s in a shape? the title of this practice report is largely based on the work that has been undertaken previously by lawyers such as peter connor, who, since 2015, has embarked on a campaign of educating future lawyers and educationalists to prepare future lawyers 8 wizner, s. (2000). beyond skills training. clinical law review, 7, 327. 9 pozios, j. (2013). clinical business law programs at robson hall. manitoba law journal, 37, 497. 10 kiser, r. (2017). soft skills for the effective lawyer. cambridge university press, cambridge uk. international journal of clinical legal education the shape of you 114 for their careers. in a blog contribution written in 2020,11 connor identifies aspects to his career, which aided his success, yet were a consequence of opportunity, and had been amassed through experience. in a quite unstructured manner, the key elements of acting as a lawyer requires legal knowledge and legal skills; these are the primary requirements of any successful lawyer. yet lawyers must be so much more rounded to be successful, whether in practice, or indeed in particular where they intend to establish their own business and deal directly with numerous stakeholders. this will entail many non-legal skills such as understanding business, partnerships, change management processes, and continuous improvement cycles. these have regularly been referred to as ‘soft skills.’ it is possible that such a term was not meant in the derogatory sense, yet its very nature tends to suggest that these are of lesser importance or they are skills which are not as necessary as the ‘proper training’ of a lawyer.12 that being said, it is also true that several of the hard and soft skills of a lawyer overlap – negotiation, conciliation, the ability to effectively and actively interview and take and receive instruction are all aspects of the legal profession, which we would expect graduate lawyers to possess. further, and as part of the graduates’ continuing professional development are requirements to re-skill, up-skill, to develop new competencies and to ensure that these take place not only for career 11 <https://www.legalbusinessworld.com/post/the-shape-of-lawyers-in-the-future-t-o-or-delta>. 12 a matter discussed broadly in lloyd, r. m. (2004). hard law firms and soft law schools. north carolina law review, 83, 667. practice report 115 survival, but also for career progression.13 these factors bring us to the issue of how best to prepare lawyers for practice in the future. training is available for lawyers for many of the skills which would come under the remit of soft skills, and some universities have begun to offer formalised unstructured training through module and credit bearing course assessments. however, it is worth identifying in the first instance, the recognised alphabet of shapes that have emerged over the recent past regarding our non-legal skills and how best to incorporate these in the lawyer of the future. the first is the ‘i’ shaped lawyer. figure 1: the ‘i’ shaped lawyer 13 legg, m. (2021, november). legal regulation in a changing world. in opening keynote, 2021 conference of regulatory officers (vol. 8, pp. 21-68) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3961101>. soft skills business understanding l e g a l k n o w le d g e t ra d it io n a l s k il ls international journal of clinical legal education the shape of you 116 this model has been widely identified as encompassing the majority of professional lawyers, and indeed other professionals, where the lawyer in our case, has a specialism, an established expertise in a specific area, but little knowledge, experience, or indeed skills outside of this specialism. this is not uncommon with lawyers, and indeed for academic lawyers it has often been touted as a means of establishing oneself in a particular field to gain notoriety or acceptance as the leading expert in a particular area or jurisdiction of law. many barristers, and academics with desires to hold chairs in universities, have spent careers developing a niche area to which they are an established expert, and these dominate the type of lawyer they are. the legal knowledge and skills as a lawyer establish the majority of their professional make-up, with soft skills and business knowledge accounting for a considerably smaller proportion of their professional ‘self.’ where this has become a problem for businesses is in the skills and knowledge possessed by a team, and of the individuals within such teams, to be able to work collaboratively, to innovate, and to solve problems faced by their organisation, and, naturally, the clients. such broader thinking, and the ability to problem-solve and to be intellectually and organisationally agile may be lost if too many key personnel are ‘i’ shaped. thus was born, the ‘t’ shaped lawyer, who, as figure 2 demonstrates, possesses a deep expertise in one particular area, but also a broad range of skills and competencies. the soft skills of teamwork and communication, critical thinking and practice report 117 project management are exhibited. further, an awareness is present, not as deep as their subject expertise but sufficiently broad to appreciate the nuance and linkages between these different areas, to produce a more holistic lawyer, who is adaptable, resilient, and able to acclimatise to changes in a fast, developing economy and industry. figure 2: the ‘t’ shaped lawyer perhaps what is interesting about this development is the natural metamorphosis from the ‘i’ shaped lawyer to the ‘t’ shaped professional where the broadening of key skills is quite evident and easy to conceptualise. the use of the term ‘t’ shaped boundary crossing competencies communication; critical thinking / analytical skills; networking; project management; teamwork many disciplines e x p e rt i n a t le a st o n e d is c ip li n e international journal of clinical legal education the shape of you 118 lawyer is also adopted quite broadly simply because it is used in many other professions (and hence is valuable to law graduates who consequently work in other professions), and this has the significant advantage of demonstrating how lawyers can work with professionals in other fields who will recognise the range of skills possessed. the interchangeability of each makes integration into those teams and across disciplines so much more fluid and effective, particularly when we think of the next phase of lawyer and legal service across england and wales with the development of the solicitors qualifying examination (sqe), the legal services act 2007 and the advent of alternative business structures. moving forwards, law firms as legal businesses are much more than simply law firms, rather they may offer a range of professional services which would have been much more difficult to envisage as a reality, perhaps even as recently as 20-years ago. ultimately, connor identified a framework through which lawyers could be trained for the key skills that are necessary between legal teams, firms and individual lawyers. this framework is interesting, and whilst the training we have provided in our modules is not specifically based upon this framework – indeed, we have only come to identify this framework specifically after running modules for the previous three years – it does resonate with much of the work that we have done to establish commercially-minded lawyers and entrepreneurial legal professionals upon graduation. practice report 119 more recently, a further shaped lawyer has emerged. figure 3: the ‘o’ shaped lawyer the ‘o’ shaped lawyer is an idea of developing a well-rounded lawyer, a person who is trained beyond the technical legal skills, but one through which the legal profession ‘will provide its customers with a better service in a more diverse, inclusive, and healthier environment’.14 this too has led to the formation of a framework (see figure 3) which has found its identity in the training for the sqe. the framework will enable lawyers to develop ‘o’ behaviours by having a proactive mindset with legal, business and customer knowledge and skills. to this end the 14 <https://www.oshapedlawyer.com/overview>. optimism ownership open-mindedopportunistic original international journal of clinical legal education the shape of you 120 programme operates around five mindsets. the first is optimism, where, it is explained, historically lawyers have been trained in a traditional manner to find faults and problems – essentially they are programmed to critically analyse scenarios, but in so doing are not necessarily trained with a positive mindset.15 the optimism ‘o’ is designed to relocate a lawyer’s mindset instead of as a ‘blocker’ to more of a business partner.16 the second ‘o’ is ownership where lawyers will be trained to take accountability for the outcomes of decisions rather than being seen as a distant provider of advice. the third element is to be open-minded, where the lawyer will adopt a growth-mindset, rather than the typical defensive and fixed mindset in respect of practising law. opportunistic is the fourth element, and here traditional risk avoidance is removed and the lawyer will identify and focus on business opportunities rather than the avoidance of the risks associated with new ventures. they thereby adopt an entrepreneurial spirit.17 the fifth ‘o’ is for the lawyer to be original, meaning changing the traditional perspective instilled in students’ training, exemplified in the study of judicial precedent, which has had the effect of establishing lawyers as backwards-looking professionals. this final element of the oshaped lawyer again seeks to establish lawyers as creative, innovative and problemsolving members of a team.18 15 stout, r. l. (1910). where the law fails. law & banker & bench & bar review, 3, 102. 16 markfort, r. (2017). legal advisor–service provider–business partner: shifting the mindset of corporate lawyers. in liquid legal (pp. 47-58). springer, cham, switzerland. 17 jones, s. r. (2007). supporting urban entrepreneurs: law, policy, and the role of lawyers in small business development. western new england law review, 30, 71. 18 menkel-meadow, c. (1999). the lawyer as problem solver and third-party neutral: creativity and nonpartisanship in lawyering. temple law review, 72, 785. practice report 121 the framework is supplemented by the establishing of various skills at the training stage for lawyers. lawyers should be adaptable and they need to have the skills to thrive in emerging and developing environments throughout their legal career.19 hence the lawyer of the future should have courage and the skills to take action in the face of uncertainty; resilience in respect of setbacks and disappointment, with the ability to recover quickly and to learn lessons in a positive manner; to be able to receive feedback and to use this with a constructive mindset for improvements to future practice; and have an ability to seek to develop new skills and techniques through a process of continuous learning. lawyers should also be trained to build relationships and these long-term connections need to be made with a wide range of people.20 of course, networking and relationship building is not a particularly new facet of developing a legal career. indeed, many universities devote significant resources to enable undergraduate and postgraduate law students to network with a range of professional contacts within the legal community. where this training scheme differs slightly is in the range of professionals with whom the future lawyer should have an ability to network. this requires empathy training, where the lawyer can understand the perspectives and agendas of others – not restricted to other 19 menkel-meadow, c. j. (2012). too many lawyers? or should lawyers be doing other things? international journal of the legal profession, 19(2-3), 147. 20 freeman, a. (2015). teaching for change: how the legal academy can prepare the next generation of social justice movement lawyers. howard law journal, 59, 99. international journal of clinical legal education the shape of you 122 lawyers.21 they should be able to influence the actions and mindsets of others and to communicate their message to a variety of audiences and to collaborate effectively with people from various teams and on the basis of short, medium and long-term goals. finally, the future lawyer will be required to create value through their skills as a lawyer and through legal initiatives.22 legal challenges will always be present in business opportunities, yet the lawyer should have the capacity to see the opportunity in respect of the challenges, to identify problems and to be able to provide a legal solution.23 hence, they combine their business and entrepreneurial acumen with their understanding and knowledge of the law and legal processes. through synthesising these challenges and their place within processes, the lawyer will be able to simplify complexities and understand and communicate these most critical of elements into an understandable form, depending upon the audience. the most recent model that has emerged and been applied to lawyers is that of ‘delta’ which, based on a series of empirical studies, and across a range of professions24 – not simply lawyers – will produce a competency model that can be used by anyone in the law firm, regardless of the stage of their career and whether they act in a legal or non-legal capacity. 21 fletcher, l. e., & weinstein, h. m. (2002). when students lose perspective: clinical supervision and the management of empathy. clinical law review, 9, 135. 22 gilson, r. j., & mnookin, r. h. (1995). foreword: business lawyers and value creation for clients. oregon law review, 74, 1. 23 brest, p., & krieger, l. h. (1999). lawyers as problems solvers. temple law review, 72, 811. 24 hax, a. c., & wilde ii, d. l. (1999). the delta model: adaptive management for a changing world. mit sloan management review, 40(2), 11. practice report 123 figure 4: the delta model the delta model was created in response to the ‘t’ shaped lawyer model, which it was felt lacked the people dimension/personal effective dimension. it is arguable whether this was actually a feature lacking in the previous model development, and indeed connor refers to such a dimension being present in his ‘boundary crossing competencies’ aspect of his ‘t’ shaped lawyer framework. a simplified understanding of the delta model identifies people competencies as being the first aspect of skills development. here the lawyer (in our case) will develop an understanding of business, collaboration, communication, emotional intelligence and creative problem-solving. they will develop an entrepreneurial mindset, adopt a human centred design, and understand their role in leadership and relationship management. hence, the lawyer of the future will possess accountability, common sense, integrity and the people the process the practice international journal of clinical legal education the shape of you 124 professionalism, they will be possessed of active listening and conflict resolution skills. they will be able to undertake change management and persuasive communication, they will have self-awareness and self-regulation, and they will be adaptable and proactive in their problem-solving. further, they will take initiative in strategic planning, they will possess curiosity and be able to provide and to receive feedback along with their role in developing others through coaching. secondly, the delta model identifies process competences such as business development, data analytics, process design, improvement and delivery, and project management along with an understanding and use of the technology underpinning these. finally, there are practice competences whereby the lawyer will revert to the skills that underpin legal training – case analysis, issue identification, critical legal analysis, sound legal judgement, research, legal writing and a subject-matter expertise.25 having identified the various models it is perhaps relevant at this stage to identify which model might fit best to a lawyer with the intention to proceed to a commercial and/or entrepreneurial career. it is first only reasonable to identify that the t shape lawyer is the most established and developed of the models explained in this piece. the o shape and the delta frameworks are still being developed by various parties, and this requires refinement and empirical assessment following the development and rollout to identify successes and areas where further work is needed. indeed, the 25 carrel, a. (2018). legal intelligence through artificial intelligence requires emotional intelligence: a new competency model for the 21st century legal professional. georgia state university law review, 35, 1153. practice report 125 skills and competencies identified in the delta model are very wide-ranging and it may be quite conceivable that developing such skills to a sufficiently high standard may require several years of experience and be beyond the ability of the most committed training phase at undergraduate and postgraduate levels. perhaps the most compelling aspect of conner's own assessment of his t-shaped lawyer framework is the movement away from digital transformation which appears to be so in vogue with current understanding of legal training and the future of legal work.26 the development of the lawyer as a person, their human transformation in establishing a comprehensive idea of skills, competencies, capabilities, knowledge, mindset, and vision is what is so remarkable about this transformation in legal education. again, this is not to say that some of these features were not present in traditional legal training, nor could it possibly be argued successfully that educators did not already identify many of these traits as being worthy of discussion, reproduction and indeed assessment within the various modules and courses offered to law students these past several decades. why this is so important as a framework currently, is because of the formal and explicit recognition of the need to develop a framework around which legal training and instruction will take place. these are not competencies and skills which will be developed in an ad hoc manner or as part of some specific module to be passed and then resigned to a folder in the student's portfolio. rather the entire course, the entire training and instruction of the students 26 janoski-haehlen, e. (2019). robots, blockchain, esi, oh my!: why law schools are (or should be) teaching legal technology, legal reference services quarterly, 38:3, 77, doi: 10.1080/0270319x.2019.1656456. https://doi.org/10.1080/0270319x.2019.1656456 international journal of clinical legal education the shape of you 126 should be based around the skills and they should be central to the lawyer as being part of a business, not merely that aspect of a business which provides details and understanding and guidance as to the legal parameters in which a particular course of action may or may not be taken. they are central figures who work cooperatively with the entrepreneurs, technicians, managers and employees to bring to life the business opportunities available in the new century, which has been marked thus far by uncertainty, crises and a fundamental need for agility and creativity – along with a positive and forward-looking mindset. 3. teaching law as a business through elective modules in considering how we can shape the future education of law students and prepare them better for careers in commercial and entrepreneurial enterprises, we began with a consideration of the key factors that future graduates should possess. for law firms, commercial awareness is a much sought-after skill27 and an area which can often be neglected by students who have, for the previous three/four years of academic study, concentrated on the minutiae of legal texts, judgments and solving practical problems of fictional scenarios in seminars. it might only be after this period of study that they truly begin to focus on employment and what skills and graduate attributes the employer may want. even in a traditional law clinic setting, many of the 27 mcconnell, s. (2022). a systematic review of commercial awareness in the context of the employability of law students in england and wales. european journal of legal education, 3(1, june) 127. practice report 127 discrete areas of legal advice provided surround issues of social justice and access to justice. consequently, most do not focus on providing commercial advice or in helping to create entrepreneurial businesses – accepting of course that such dedicated and specific clinics, as we acknowledged at the start of this report, do exist and provide this very experience. in order to provide the students with an appreciation of not only law firms and the legal sector as a business and profit-orientated enterprise, but also providing them with sufficient information so they can make an informed choice as to whether, with the broadening of access to legal services, they wished to establish a business in the legal sector, it had been contemplated at one of the authors’ universities how this might be achieved. at the outset, modules were developed (broadly referred to here as ‘law as a business’) aimed at providing this very educational experience. these were rolled out, not only to law students studying for a traditional llb award, but also to students studying in the business schools where such entrepreneurial endeavours had been well established – albeit perhaps not in such a clinical setting. the modules also would act as pilot data as to the efficacy of educating students in an (albeit simulated) entrepreneurial setting, pending conversations surrounding its inclusion at a more strategic and fundamental level in subsequent course programmes. international journal of clinical legal education the shape of you 128 this led to the establishment of modules specialising in introducing the students to the most significant aspects of running a law firm as a business. the modules were delivered over two semesters to undergraduate law students in one module, and non-law students in the other module. in each, the students were tasked over the course of the semesters and in the formative assessment with assisting a simulated client from a small, high street law firm. the client required advice on a number of issues as outlined in the abstract of this report. a simulated client was used in this clinical programme given the advantages it gave to the teaching staff and the students in their pedagogic development. for example, using a simulated corporate client provides a controlled environment where legal and non-legal issues, designed to present students with specific challenges that align with the curriculum and learning objectives, are raised. through this method, the teaching staff can ensure that the development of the t-shaped skills are identified, considered and tested. we did not have to wait until clients presented individual issues which aligned to these pedagogic criteria, thereby we avoided the unpredictability and complexities that come with real clients. further, we were able to monitor the progress of the students whilst ensuring that each student received the same opportunities to learn and practice essential skills. an important aspect of the entrepreneurial nature of the modules was in the innovation in the creation, expansion and the exploitation of the resources of the simulated law firm. this method allowed us to focus on the interdisciplinary practice report 129 dimension to the t shaped lawyer in the students’ learning. we were able to incorporate elements from fields including finance, management, corporate governance, advertising and marketing. with real clients, such instances must be cautiously exercised based on the instructions of the client. here we did not have to fear damaging the client's interests or breaching confidentiality. students were allowed to exercise their freedom of creativity and to learn from their mistakes without any real-world consequences. for the students, this interdisciplinary approach helps stimulate a more comprehensive understanding of the legal and business landscape. the modules go beyond seeking to produce the typical lawyer who would be expected to graduate with excellent legal knowledge, appropriate practical legal skills, and the ability to demonstrate transferable skills across a range of assessments and activities. our students are exposed to the understanding of the legal profession in its business and entrepreneurial contexts – how law firms make money, how its personnel deal with internal and external factors that affect the firm and the people/organisations with whom they engage, how firms control their finances, how they advertise and promote their services, how they maintain their standing in the communities in which they are situated, what role law firms play (and can play) across entrepreneurial endeavours and across industries, and what can clients and the regulators reasonably expect from such a business. thus were married together practical legal skills and commercial awareness, based on a series of in-class international journal of clinical legal education the shape of you 130 workshops, independent research and wider reading, and access to experts who provide a real-world perspective on these factors. perhaps one of the greatest challenges to the students studying law as a business is the movement away from the typical academic, legal research focus that underpins much of the work to which they are exposed. similarly, in other clinical modules to which the students had already been exposed, they would provide advisory services, and typically in the form of a letter of advice, to clients who present themselves seeking help. this in many ways limited the strategic development exercises regarding the students’ individual learning – they helped clients who walked through the doors of the clinic. where our law as a business modules are different is in the scaffolding of client issues including a board of directors and/or partners to whom the students were to offer advice and guidance. hence, not only were there differences in the type of advice our clients required, but also the outputs of the students’ work were focused at board and strategic levels, ensuring a more entrepreneurial mindset was used to creatively resolve issues between businesses, between the business and regulators, and in ensuring client satisfaction. further, the students were also tasked with using these skills in one aspect of their summative assessment to pitch their own idea for a commercially-focused business. here the students used their knowledge and the skills gained following interactions with colleagues, external experts, legal and non-legal research activities and the legal practice report 131 sector to demonstrate the very t shaped lawyer skills necessary for a modern legal business concept. 4. embedding legal skills given that both the solicitors regulation authority28 and the bar standards board29 require lawyers to demonstrate a range of skills, these are incorporated into the modules to ensure the students can identify how they complement the t shaped lawyer being developed. legal research is a central component in the modules, underpinning the students’ appreciation of the broader range of contemporary and traditional academic skills needed for a modern entrepreneur/lawyer. the research is focused on issues affecting the legal sector, businesses and their operation, and how effective research and its critical analysis can not only lead to the correct identification of trends, issues and problems, but also the planning (such as through creating mind maps) which can provide a structure to help direct this research in the most appropriate way. we spend time with the students developing their research skills, especially the planning phase. here the students learn the process of identifying and preparing research trails, noting the issue being researched, the reason and its importance, maintaining records of what has been found, where, the full sources, and assessing their reliability. this last stage is particularly important for 28 sqe 2 assessment specification, solicitors regulation authority, <https://www.sra.org.uk/sra/policy/sqe/sqe2-assessment-specification/>. 29 bptc syllabus and curriculum, bar standards board <https://www.barstandardsboard.org.uk/uploads/assets/ae901caa-5529-45b49631e3ab9e8fad00/2019-20-bptc-syllabus-full-syllabus-january-2020.pdf>. international journal of clinical legal education the shape of you 132 legal research where business/entrepreneurial matters are being assessed. this necessitates a much broader range of research sources than the typical legal databases and law reports materials the students are typically asked to use. when webpages, news reports, on-line commentary, and even information from law firm websites are accessed, the need to develop a keen eye to identify sources of potential bias and to ensure these are countered through wider reading and critical analysis are paramount. this skill has the ability to impact on the students’ entire study of the law and something to which we have previously argued is missing in law-specific modules.30 students must be trained not to accept opinions, be they business-based or expressed by those interested in the legal professions, and this approach applies especially to legal opinions which should be assessed and critiqued to ensure full consideration to all sources is provided.31 by avoiding the approach of replicating and simply reciting the opinions of others, the entrepreneur lawyer can add significant value as a business partner by being aware of legal opinions and laws, but by avoiding becoming entrenched in acceptance of the status quo. encouraging 30 marson, j., & ferris, k. (2016). delaney and the motor vehicle insurance directives: lessons for the teaching of eu law. law teacher, 51(4), 411. 31 this is an approach we have adopted in our publishing. see for example marson, j, & ferris, k. (2022). when is an insured vehicle an uninsured vehicle? in colley v mib the court of appeal continues its struggle with eu motor vehicle insurance law. modern law review <https://doi.org/10.1111/1468-2230.12762>; marson, j., & ferris, k. (2022). from insurer of last resort to an insurer of convenience: the court of appeal and the recanted policy. law quarterly review, 138, 546. https://doi.org/10.1111/1468-2230.12762 practice report 133 disruptive and challenging behaviours is a skill to be developed and nurtured, something we respectfully advance is not always evident in university courses.32 when analysing cases and wider business issues, the students are taught to use analytical tools to assess the impact both internal to the law-firm business and with its external environment. this instils in the students a need for careful and thoughtful consideration of the ways in which their decision-making can impact the business, understanding investigating matters from several angles and in respect of the various stakeholders to the business can ensure full consideration of the impact of decisionmaking has for a business. in this regard we ask the students to use analytical frameworks such as swot,33 and pestle to ensure they have thoroughly assessed issues. swot is an analytical method which is adopted in the evaluation of the strengths, weaknesses, opportunities and threats within an organisation, an activity taking place within the business, and it can also be adopted for use in reference to plans, projects and even an individual. it has been used in the examination of resources, trends and patterns, and is extended to business strategies and organisational policies, albeit that the success and efficacy of a swot analysis rests with the quality and detail of the information and data used in the generation of 32 ehtıyar, r., & baser, g. (2019). university education and creativity: an assessment from students’ perspective. eurasian journal of educational research, 19(80), 113. retrieved from <https://dergipark.org.tr/en/pub/ejer/issue/43338/548913>. 33 see leigh, d. (2009). swot analysis. handbook of improving performance in the workplace: volumes 1‐3, 115. international journal of clinical legal education the shape of you 134 results.34 as such, its main deficiency is in the complexity of the problem, organisation or business structure itself, and that it is essentially inward focused and is prone to be implemented incorrectly resulting in poor, and potentially misleading, results.35 ultimately our students are exposed to the critical application of swot methods of analysis, they are provided with a simulated organisation through which they can assess a proposed strategy, they are tasked with exploring an interoperability framework and then explaining how the conclusions drawn from this model can be used pragmatically to influence internal policies, strategies, and procedures. from there we proceed with exposure to the pestle mode where students identify businesses as open systems, with subsystems and interrelationships between decisions and effects. appreciating that law firms are businesses and their aim is to maximise profits, whilst also appreciating the value of the model for pro bono operations where the measurements will be focused on relevance, effectiveness and efficiencies. the value of pestle lies in its external focus and ensuring the students have an appreciation of the political, economic, social, technological, legal and environmental dimensions to the territories in which they exist and operate. this might also be applied to the macro environment, as well as the micro environment. 34 gurel, e. (2017). swot analysis: a theoretical review. journal of international social research, 10(51), 994. 35 valentin, e. k. (2001). swot analysis from a resource-based view. journal of marketing theory and practice, 9(2), 54. practice report 135 whilst political and legal elements should be quite familiar to students studying law and applying their practice in a legal clinic, it would not be uncommon for these same students to not fully appreciate the economic, social, technological and environmental factors which affect all businesses. even the political and legal factors are considered from a different viewpoint when applied in a business or entrepreneurial perspective. for example, through the most basic of modules where the english legal system is studied, students will appreciate the law-making system including parliament, international treaties and the separation of powers. yet through pestle, the political factors considered by the students include government policies and policy making, the impact of political leadership and change and the effect this can have for business planning and regional, national and international collaborations. there will certainly be foreign trade policies which can affect the application of goods and services, and there are policies, regulations and deregulation in areas including immigration, human rights, privacy, tax and safety which will affect businesses and through which they have, largely, little control. in respect of legal factors, the students are exposed to laws and to providing advice in problem-based scenarios or in the critical assessment of the particular law in question through, for example, essay-based assessment, yet for businesses, equality, diversity and inclusion, advertising standards, consumer rights, advertising, labelling international journal of clinical legal education the shape of you 136 and consumer safety, health and safety and so on are all aspects of the business which need to be assessed before embarking on a course of action. the four remaining elements of pestle require the students to think much more strategically about the business and environment in which they will be operating. economically, current and projected growth, inflation, interest rates, employment and unemployment, labour costs, consumers and businesses as clients, changes in demographics, even the impact of globalisation are each assessed in respect of the business. this continues through the social factors which focus on demographics, client and consumer attitudes and opinions, buying patterns, living standards, population growth rates, and employment trends. the environmental factors not only include the environmental impact of the business and aligning the interests of clients and customers with those of the values of the business itself, but also access to materials, sustainability and carbon footprint targets and emissions all form part of the students’ assessments. technological factors for law firms are of saliency given the distribution of services which is the fundamental aspect of law firms as businesses, and it provides new ways of communicating with target markets and even the production of the particular service that is available. this has certainly come to the fore following the pandemic, forced lockdowns, and the new ways of working in the previously archaic legal service in the uk. practice report 137 having completed the research and analysis of the business matters, the students are instructed on the presentation of the results. law students are typically taught how to advise on legal issues and apply the law to problem-based scenarios. in a clinical setting, students advise clients, and most commonly these are based on a socialjustice issue (debt, employment, immigration and so on). in entrepreneurial clinics, the client for the students is markedly different and with different needs. typically these are businesses, corporations and the contact is either a lawyer representing the business or a senior member of the organisation. consequently, the communication and advocacy elements of the students’ learning is different and, almost, bespoke for the module. the students will undertake standard clinical tasks including drafting letters to clients, opponents, experts, and the court, they also experience writing memos to senior staff within a law firm, preparing and maintaining files and producing reports based on the swot and pestle analyses previously completed. finally, an important part of this module is requiring the students to complete a record of reflection, using established models. this exposes the students to the philosophical underpinnings of reflection and understanding the purpose it serves. they appreciate that identifying what has happened during their studies, identifying new experiences and where they have challenged themselves; where they went beyond their comfort zone; and in exploring the lessons they learned from this experience, before commenting on what they plan to do in the future to address these issues all help to shape themselves as lawyers of the future. of course, international journal of clinical legal education the shape of you 138 reflection is an important aspect of any professional role and is specifically required of solicitors by the sra.36 with these modules, the students are assessed on their reflection and the emphasis is on how their commercial awareness and understanding of the various aspects of being part of an entrepreneurial enterprise in a legal setting have changed following completion of the module. indeed, the annual reviews of student experiences collected by the universities where the authors are employed has demonstrated this value to the students. they note improvements to their understanding and appreciation of law beyond the identification of legal problems and the dissemination of legal information. they expressed their increased understanding of the commercial world where businesses are located, and identified their own development in areas including communication to differing audiences; critical thinking and the experience of applying this to specific projects and across the teams in which they worked; and the networking opportunities where they met lawyers who could talk about their business, the new demands faced in a post-covid business world, and what traits an entrepreneurial lawyer needs, to be competitive, in this emerging marketplace. 5. conclusions it has been our aim in this practice report to explain the nature of how commercial awareness can not only be a part of the training and education of modern law 36 <https://www.sra.org.uk/solicitors/resources/cpd/tool-kit/identify-learning-development/>. practice report 139 graduates, it is increasingly a necessity for those with intentions of entering the legal profession or engaging in entrepreneurial activities. we began by outlining the current awareness of commercial lawyers and the skills and competencies they possess depending upon their ‘shape.’ we have explained how we have advanced the commercial awareness and entrepreneurial training of our students, instilling in them an appreciation of those factors to which law firms and their key personnel must have an understanding. by adopting these provisions through the lens of a simulated client at a law firm, it has allowed us to explore essential factors of the inception of a business and business idea, the legal sector and the community in which it operates, a business’s clients, the generation of business, the effects of legal policies including professional body regulation and compliance, marketing and advertisement, and stakeholder theory. we have incorporated in these tasks the development of the students’ own skills, aligned with the t shaped lawyer framework, and are beginning to produce strong evidence that compulsory commercial awareness is a key factor to be incorporated in university programmes. not only is such training interesting and stimulating for the students, it adds authenticity to their assessments, increases employability skills upon graduation, ensures universities meet their targets of producing professional graduates who progress to graduate employment, and at this stage of its roll-out, can offer a strategic advantage to universities in their recruitment of students. embracing commercial / entrepreneurial clinical education into law school programmes leads to international journal of clinical legal education the shape of you 140 positive results across communities and encourages a skills-set which all future lawyers should possess. gathering the excluded voice: the txt inside/txt outside project reviewed article – clinic, the university and society gathering the excluded voice: the txt inside/txt outside project richard owen university of essex, uk rowenb@essex.ac.uk introduction the txt inside/txt outside project was an interdisciplinary community legal education project.1 it was a collaboration between a legal academic, computing and social scientists, and a conceptual artist. the project involved young offenders held under secure conditions in a young offender institution using text art to reflect on their experiences of law, life and the legal system. the aim of the project was to engage the young offenders and the general public in a discussion about the treatment of young offenders using narrative techniques. the voices of young people held in custody (inside) were ‘gathered’ and ‘released’, to be seen, heard and responded to by the public at large (outside). the focal point of the 1 i would like to thank helen power, reader in law, university of south wales for commenting on a draft of this article. any mistakes are, of course, my own. the project was funded by beacon for wales a community engagement fund for universities in wales funded by the higher education councils, research councils uk and wellcome trust. it was formed from a partnership between cardiff university, the university of glamorgan, amgueddfa cymru-national museum wales, techniquest, and bbc cymru wales. the project team consisted of members of staff from artstation (glenn davidson); the school of social sciences (michael shepherd) and school of computer science & infomatics, (ian grinstead) cardiff university; and university of glamorgan law school (richard owen). the university of glamorgan ceased to exist in april 2013 when it merged with university of wales, newport to form the university of south wales. 5 mailto:rowenb@essex.ac.uk action was a ‘stage event’ in the centre of cardiff, where the text messages of a small group of young people in custody were displayed on a large screen, with the public being invited to respond by texting their own messages. a documentary film from the event, which included the projections and interviews with the public, was subsequently shown to and discussed with participating young people in custody.2 theoretical background 1. community legal education there are four broad goals for community legal education as distilled from gandhi, freire, hooks, and lopez: (i) empowerment with legal knowledge to enable the community to advocate for its own self-interests; (ii) collaborating with the community to facilitate community legal education; (iii) teaching and learning in context; (iv) teaching multi-dimensional lawyering skills and instilling a commitment to social justice.3 the aim was to create a discussion about the experiences of young offenders with members of the public to provide a space so that they could reflect on their views. 2 an abridged version of the film can be viewed at <http://www.artstation.org.uk/txtoutside/video.htm> accessed 25 january 2014. 3 mm barry and others, ‘teaching social justice lawyering: systematically including community legal education in law school clinics’ [2012] 18 clinical law review 401, 424 6 http://www.artstation.org.uk/txtoutside/video.htm this was intended to empower both the young offender community, on the one hand, to allow their unmediated voice to be heard and the community of the public at large, on the other hand, by allowing them to form their own opinions about the treatment of young offenders based on the direct testimony of offenders themselves, as opposed to information obtained indirectly via the press. in a sense it was advocating on behalf of young offenders, but rather than advocating in a particular cause, which is what has traditionally been meant by community legal education, it wanted to extend this goal by having the more general aim of seeking to ensure that members of the public had a considered view of the treatment of young offenders. it was a collaboration to create a work of performance art on the part of both the young offenders and the public; the project creating the space for this to occur. it contextualises learning for students by giving them an insight into the issues of social deprivation frequently faced by young offenders and how this might lead to criminality. it was aiming not only to put teaching and learning in context for students but also put the legal process, insofar as it affects young offenders, into a context for the general public as well. it was also examining whether use of new technologies can assist the pursuit of social justice and also enhance students’ lawyering skills by making them more aware of conditions surrounding actors in the legal process and giving an insight into how the use of new technologies might promote change. 7 2. using narrative there are a number of ways to define narrative, but, at its most abstract, it could be described as a ‘representation of an event’ or ‘a connected sequence of events’. 4 narrative is obviously used in law. it could be said that in civil cases the claimant casts the narrative, the respondent recasts it, and the judge re-recasts it. in criminal cases the jury will process and test the validity of the defendant’s narrative in relation to their own narrative as community members. narrative within law is distilled until one arrives at the ratio decidendi: that combination of law and fact on which the case is decided. lord denning used narrative techniques as a way of conveying, typically with an economical use of words, an impression of the facts of a case. the famous opening line of his judgment in hinz v. berry5: “it was bluebell time in kent,”6 conveys in very few words the tranquility and beauty of the scene, immediately interposed to the carnage that was about to occur as a result of a serious car accident. it is a highly evocative statement, and an effective narrative technique. 3. using narrative in legal education narrative is being increasingly used in professional education. there are examples of it being used in medicine and accounting and a number of advantages have been 4 lacy, as cited in dawn watkins, ‘the role of narratives in legal education’ (2011) 32 liverpool law review 113 5 [1970] 2 qb 40 6 ibid 42 8 identified in using narrative techniques in legal education. it has been claimed that it leads to greater student engagement by allowing students to create meaning by imagining what happened or could have happened.7 it allows for greater empathy and seeing the actors in legal process as fully realised people situated in a social context thereby creating more rounded lawyers. students taught in a legal positivist tradition are used to seeing legal education being reduced to a set of rules, to think rationally about these rules, and to privilege rationality over emotion. narrative though can meet a basic human need. all societies throughout history have used narrative techniques, such as storytelling, so to overlook narrative is to dehumanise legal education. the post modern loss of belief in an objective reality also favours use of narrative techniques. it creates extra dimensions to law students’ education as they see the perspectives of others. it creates an alternative to positivistic approaches to legal education and demonstrates to students that there can be an approach to legal education which looks at the law as lived.8 those who have studied use of narrative in legal education have seen its possibility for hearing the voice of those who are suffering and oppressed. it also explores the limits of law and develops an imagination for what the law might become.9 through providing context, it reveals the messiness of many people’s lives 7 michael blissenden, ‘using storytelling as a teaching model in a law school: the experience in an australian context’ (2007) 41(3) the law teacher 260 8 narnia bohler-muller, ‘the challenges of teaching law differently: tales of spiders, sawdust and sedition’ (2007) 41(1) the law teacher 50, 52. 9 ibid 9 and provides the basis for approaching problems intelligently and creatively for those who go onto to legal advice work. however, narrative techniques have been criticised for not being clear as to the legal rule in which the problem is grounded, what the legal response should be to problems raised by the narrative or suggesting solutions only in general terms.10 further criticism is levelled at narrative’s failure to attempt neutrality and instead aligns itself with a particular group; it also does not test ideas through adversarial debate with those holding opposing views.11 its use of anecdote is unscientific and it is hard to know how far it is possible to generalise from people’s specific stories. this latter criticism seems to overlook that narrative is just one of many sources that can be examined when looking at a group’s situation. it is not a privileged source but it can be a valued source. there are also concerns that narrative infers your views are less valid if you have not experienced a situation directly yourself. in other words, it creates a danger that it will not be possible to gainsay a young offender’s interpretation of their experience of being incarcerated unless you too have been imprisoned as a young offender. this mistakes the role of narrative. its role is not to diminish the views of those who have not been imprisoned as young offenders but to more easily empathise with those who have been in that situation and to have a greater insight as to what it might be like to be a youth in prison. 10 kathryn abrams, ‘hearing the call of stories’ (1991) 7 (4) california law review 971, 978 11 ibid, 979 10 what was experimental about this project was that it attempted to use narrative techniques in community, as opposed to classroom based, legal education utilising new technologies. it aimed to release narratives about the young offenders’ experiences of the criminal justice system into the public domain, not to advocate in specific disputes and with no particular end result in mind other than promoting reflections on this experience. the txt inside/txt outside project the project involved two initial workshops working with ten young offenders who were all male and all aged between 15 and 17. they were all held together under secure conditions in the same young offender institution. in the first two workshops, the texts were produced by the young offenders. in the first workshop the young offenders wrote their responses to a series of prompts: what is your favourite moment? what do you think of when you first wake up? what are your dreams? what would you like to do when you get out of here? a group discussion then followed which examined the responses. in the second workshop, three members worked on a one to one basis with the young offenders or in small groups about their experience of the criminal justice system. they were asked if they thought their treatment had been fair; who had helped them when they 11 were in trouble; whether they had been listened to during trial and in the young offender institution; and their experiences of being incarcerated. the characteristics of many of the young offenders reflected those of the prison population as a whole. members of prison staff told the project team that many had only managed low attainment at school and from the text messages they produced it was clear many had poor self-image.12 whilst there is a strong, systemic emphasis on attaining qualifications in prison education generally in order to enhance the prisoners’ prospects in the labour market upon release, there is also an emphasis on developing self-image through experiencing success.13 raising self-esteem is seen by many members of staff working in the system as a necessary precondition to success in education, and one of its major purposes. art, drama and music are seen as important factors in helping to raise self-esteem. there have been a number of studies which have shown that art as part of a prison education programme raises prisoners’ self-esteem.14 art is often a portal through which young offenders pass prior to becoming more engaged in education generally.15 prison officers usually value the acquisition of ‘soft skills’ for making a contribution to offenders’ 12 jane hurry and others, inside education: the aspirations and realities of prison education for under 25s in the london area (sir john cass’s foundation/institute of education, university of london 2012) 4 13 ibid 9 14 l digard, a von sponeck, and a liebling, ‘all together now: the therapeutic potential of a prison-based music programme’ (2007) 170 prison service journal 3; laya silber, ‘bars behind bars: the impact of women’s prison choir on social harmony’ (2005) 7:2 music education research 251; d wilson and m logan, breaking down walls – the good vibrations project in prison (centre for criminal justice policy and research 2005) all cited in k anderson and katie overy, ‘engaging scottish young offenders in education through music and art’ (2010) 3(1) international journal of community music 47, 48 15 anderson and overy (n14) 47 12 development; however, the targets set for prison educational programmes in england and wales focus narrowly on the functional requirements of accredited skills based employment orientated qualifications. in these workshops some 31 text messages were prepared by the young people (inside), and 29 of these were cleared by the prison authorities for later transmission; these were ‘released’ to the public with the public being invited to respond by texting their own messages (outside). the reasons why two were not approved are discussed below. fig. 1 bbc cymru wales information screen, cardiff on saturday 11th february 2012, the large bbc cymru wales information screen in cardiff city centre was used to display the messages in a three hour event. postcards announcing the event and inviting participation were handed out by the team in the morning. the messages of the young people in custody were displayed on the left 13 hand side of the screen, while the passing public sent live sms text messages for instant display on the right hand side. a live roll of adjacent text messages from the young offenders and the public was created putting them in ‘dialogue’ with one another. the event was videotaped and included interviews from members of the public. an edited documentary was played two weeks later to the young offenders in a final workshop. the film provided a platform for discussion of the original text messages written by the young people, of the messages posted on the screen by the public, and of the interviews with members of the public. the young people in custody who saw their messages displayed on the large, public screen in the film appeared to be profoundly moved. their behaviour was noticeably different from the two earlier workshops when they had been more exuberant, and more inclined to allow their attention to wander. experienced prison officers who were present at the screening commented on unprecedented levels of attention and focus. the decision to use texting was intended to be a reflection of teenagers’ lives today. whilst people of all ages are increasingly reliant on mobile phones to transact all manner of business, teenagers are particularly dependent on mobile phone technology to conduct a social life. 14 adolescents have been shown to be heavy users of all forms of electronic communication, including text messaging.16 virgin mobile usa reports that two thirds of teenagers with mobile phones send text messages daily; half of virgin’s customers aged between fifteen and twenty receive at least eleven text messages a day, while approximately a fifth text twenty one times a day or more.17 electronic communications have the effect of reinforcing the relationships of adolescents with their peers at the expense of communication with their parents; it expands their social circle; enables them to join offline cliques; plan social events; and it is often a vehicle to form and maintain romantic attachments. electronic communications such as instant messaging and texting have been found particularly useful by adolescents as a way of talking freely to members of the opposite gender. 18 however, use of electronic communications is not wholly positive. the more private forms of electronic communication, such as texting, have been found in reports of usage in the united kingdom to have particularly high levels of harassment and bullying.19 undoubtedly, loss of the phones and the resulting ability to text means that offenders lose many avenues of communication, which weakens their sense of identity. creative activities involving texting help them rediscover their voice and emphasise the more positive uses of texting. 16 kaveri subrahmanyam and patricia greenfield, ‘online communication and adolescent relationships’ (2008) 18(1) the future of children 119, 119 17 ibid 122 18 ibid 125 19 ibid 128 15 best practice in prison education also shows that the positive results are more likely to be obtained when a project draws upon prisoners’ age related interests and culture so text art is seen as a suitable vehicle for engaging young offenders.20 1. methodology for evaluating the project a recursive approach was taken to methodology in which outcomes were continuously reviewed and assessed; the lessons were learnt and reinvested in the next stage of the project. as the project was predicated on the basis of the responsivity of not only offenders but also members of the public, it had to adapt to the offenders’ reports of their experiences and priorities and the public’s reaction to them. as a result, observation was thought to be the best way of gaining insight into the effect of the process on the offenders and as a form of community legal education. an observation framework was developed with project team reflections after each stage of the process also sometimes involving prison officers for the stages held in the prison. this involved the project team meeting immediately after each session and assessing the young offenders’ engagement with the process. the framework looked for the young offenders’ attitude to their trials whether they regarded the process as fair; their attitude to the actors in the legal process; who they regarded as 20 hurry (n 12) 24 16 supportive and who was unsupportive; their life experiences, particularly risky behaviours, and whether they made any link between them and offending; their experience of prison life; and their ambitions for the future. these areas were being observed to see if they felt that their trials had followed due process; whether or not they regarded their legal representatives as being effective; who could be of assistance in preventing reoffending and who and what might cause them to reoffend; whether they regarded their treatment in prison as capable of rehabilitating them; and whether or not they regarded their prospects as blighted as a result of imprisonment. after the first session, the project team had to assess how to deal with the young offenders’ attitude: they were convinced that the project was designed to exploit them and make money out of them in some way. they were impressed by the expensive equipment which had been taken into the prison, but this further convinced them it was a money making venture. as a result of the lack of trust shown by the young offenders towards members of the project team during the first session, there was much more one to one interaction between members of the project team and the young offenders during the second session. the reflection on the first session also concluded that the overall feeling amongst the young offenders was that they had been fairly treated by the criminal justice system and they were many who believed in due process even if they did not express it in that way. the team reflected on how far it was possible to probe. in the 17 event, the greater incidence of one to one interaction in the second session made it easier, as it was more conversational and it was possible to ask for elaborations on statements or gently challenge what had been said. prison officers and educators had been present at the third session where the film was screened. everyone discussed their observations of the young offenders: how attentive they had been, and their emotional reaction. everyone involved put forwarded their explanations for their reactions. ten young offenders completed a sense of coherence questionnaire at the start of the first workshop and another ten the end of the final workshop although of the final ten only six were from the initial group. the inevitable churn in the prison population meant that some of the original group were no longer being detained in the young offender institution whilst new inmates made up the rest of the group for the final session. this is a small group and it is hard to see with a declining population in young offender institutions how it could be anything other. equally, it is difficult to see how it would be possible to stick with the same group of young offenders through the project. in addition to young offenders completing their sentences they may be unavailable due to other reasons. sense of coherence is the inclination to assess life events as “comprehensible”: events are perceived as ordered, consistent, structured; “manageable”: whether you feel you can cope with events; and “meaningful”: the extent to which life makes sense and it is worth making, as a result, a commitment to things. in other words, it 18 is the ability to cope with and assess events in order to behave in a constructive way. the concept of sense of coherence was first put forward by aaron antonovsky in 1979 to explain why some people respond better to stress than others. it arose from the salutogenic approach i.e. the search for the origins of health rather than the causes of disease. permission was sought and obtained to use a questionnaire which had been adapted for children’s needs and uses a 19 point scale.21 however, some suggestions were made to alter it for adolescents. the more childish references which were consequently thought to be inappropriate referred to ice cream and school classes. examples of questions used included: when i need help, there is someone around to help me. 1 2 3 4 never sometimes often always i feel that i'm not being treated fairly. 1 2 3 4 never sometimes often always i feel confused, mixed up. 1 2 3 4 never sometimes often always 21 permission was kindly given by professor malka margalit of tel aviv university to use a questionnaire he had devised and used for children although he suggested amendments as the project was working with adolescents. 19 the questionnaire was designed to measure the offenders’ feelings of control, optimism and self-esteem at the beginning and the end of the project. previous research with young offenders in spain found they had moderate sense of coherence scores.22 the research took the health assets model which is defined as factors and resources which enhance the ability of an individual, group, community or institution to maintain health and wellbeing and reduce health inequities. the young offenders in the spanish research did not mention self-esteem or positive role models as assets in the promotion of health.23 they also did not regard relating to any community group or association to be an asset even though other research has shown it has positive health benefits.24 2. issues around young offenders held under secure conditions whilst the types of issues young offenders would raise could not be predicted in advance, the public debate around young offenders in england and wales has been informed by a number of issues which have caused widespread concern. the most broad offence types are breach (breach of statutory order, bail or conditional discharge) committed by 21% of children committed to custody; violence against the person committed by 20%; robbery committed by 17%; and burglary 22 jj paredes-carbonell and others, ‘sense of coherence and health assets in a youth center for minors’ (2013) 15 rev esp sanid penit 87 23 ibid 95 24 ibid 20 committed by 13%.25 the young offenders who participated in the project reflected the typical young offender population when it can to offences of violence, robbery and burglary but none had committed breach offences. the rest were made up of offences relating to drugs. the numbers of young people held under secure conditions in england and wales although historically high has been in sharp decline since 2008. however, although the numbers of young offenders held in secure conditions are in decline, the number of offenders from ethnic minorities is rising: 39% of those held, which is up from 33% in 2009/10. 26 the percentage of ethnic minority offenders involved in the project at 30% was lower than the percentage for the entire population of young offenders in england and wales. in addition, young offenders from ethnic minorities are more likely to have a less positive experience of being held in secure conditions than their white counterparts: there has been a ‘steady decline’ in those who thought the majority of staff treated them with respect with the perception of black and ethnic minority young people worse than that of whites. 27 this was reflected in the young offenders who participated in the project. they were less happy with the way they had been dealt with by the criminal justice system and the treatment they were receiving in prison. 25 jessica jacobson and others, punishing disadvantage: a profile of children in custody (prison reform trust 2010) 14 26 amy summerfield, children and young people in custody 2010–11. an analysis of the experiences of 15–18-year-olds in prison. (h.m. inspectorate of prisons/youth justice board 2011) 7 27 hm inspectorate of prisons, hm chief inspector of prisons for england and wales annual report 2011–12 (the stationary office 2012) 75 21 there is a problem of bullying in young offender institutions. it is estimated that 25% of young men in prison have been victimised by others.28 victimisation covers a range of behaviour from name calling to murder, as in the case of zahid mubarek who was murdered in feltham young offender institution by his racist, psychopathic cellmate in 2000. the most common type of victimisation is being hit, kicked or assaulted which is reported in 11% of cases.29 twenty-two per cent of inmates report being victimised by staff with insulting remarks at 12% being the most commonly reported form of victimisation.30 unsurprisingly, it was hard to get the young offenders to talk about bullying probably because of the public nature of the discussions. incarceration can often be predicted from the socio-economic circumstances which prevailed at birth, with a quarter of male young offenders having been in care.31 troubled or disrupted family life is another feature of children in trouble with the law. a study of children and young people in custody and the community found that two thirds came from families where the structure has broken down and only one third come from families where the biological parents remain married or living together. 32 the participants reflected these statistics. about 9% of children in 28 ibid 29 ewan kennedy, children and young people in custody 2012–13 an analysis of the experiences of 15–18-year-olds in prison (hm inspectorate of prisons/ youth justice board 2013) 39 30 ibid 40 – 41 31 hm inspectorate of prisons and youth justice board, children and young people in custody 2010–11. an analysis of the experiences of 15–18-year-olds in prison. (the stationary office 2011) 7 32 richard harrington and sue bailey, mental health needs and effectiveness of provision for young offenders in custody and community. (youth justice board 2005) 38 22 custody are parents themselves.33 using small numbers, the participants reflected this as one (10%) already had a child with a partner expecting another child. for many young offenders crime is a family business: around one third have a parent or sibling who is involved in criminal activity. 34 the project team found through discussion that at least two of the participants had siblings who were in trouble with the law. another study of children who are persistent offenders also found higher than average levels of loss, bereavement, abuse and violence experienced within the family.35 one participant had suffered the loss of a sibling. in addition, children in custody often suffer multiple layers of disadvantage experiencing not only problems within the home and family but also psycho-social and educational problems as well. from observing the participants and information provided by prison officers, it would seem that they reflected this too. holding young people under secure conditions is not proven to be effective. seventy three per cent of offenders held within young offender institutions reoffend with a high likelihood that they will reoffend within a year.36 the participants did not see any rehabilitative benefits to being incarcerated and there was a broad consensus that they would be forever stigmatised after being imprisoned. 3. young offenders do not always see themselves as victims 33 ibid 53 34 ibid 35 elaine arnull and others, accommodation needs and experiences (youth justice board 2007) 36 ministry of justice, transforming youth custody putting education at the heart of detention (stationery office 2013) 8 23 whilst the issues such as multiple disadvantages are of widespread concern in academic circles, they are not always reflected in the views of young offenders themselves. amongst the text messages put forward by the young offenders were the following: • do the crime do the time • my solicitor helped me most when i was in trouble • my family and my solicitor helped me most when i got in trouble many of them seemed to have faith in the due process of the criminal justice system. in discussions, there was broad, but not unanimous, agreement that they would not be in prison unless they had done something wrong. they only said complimentary things about their solicitors, and clearly thought that they had been well represented. this, of course, might have been due to concern that the project team or others might pass on negative comments to the prison authorities. of those who commented, they regarded their families as effective support mechanisms. the grandmother was frequently cited as an important figure who held the family together often in what must be difficult circumstances. these comments show a belief in the criminal justice system, that the young offenders felt they had been effectively represented and supported by their families. however, academics often believe that there are serious deficiencies in the youth justice system and that crime is often a result of socio-economic and personal 24 circumstances.37 this creates an ethical dilemma that a well-educated, liberal elite, might well see young offenders as victims of circumstance projecting their ideas onto these young offenders who do not self-identify as victims. 4. evidence that young offenders do see themselves as excluded there were other messages which were more critical of the criminal justice system. one example is the following: • i don’t think the judge understood my life the things that are important to me this would appear to be an argument in favour of using narrative techniques in community legal education. the feeling amongst young offenders that their lives differ from decision makers and that their voice is not heard was picked up in other texts: • you’ll only listen to a millionaire • i really doubt anyone would listen to a young offender 37 fifty one per cent of children in custody come from deprived households which is defined as households on benefits or where there is unsuitable accommodation compared to 13% in the population as a whole; 39% have experienced abuse in the family compared to 16%; 7% have parents with substance misuse problems compared to 2 -3 %; and 12% have suffered bereavement through loss of a parent and/or sibling compared to 4%. source: jacobson (n 25) 52 25 there was a strong feeling that as they had been convicted, they were now locked into a lifetime of stigmatisation as a result of their conviction and would never escape its effects: • shit sticks for life • as soon as you’ve been in once the police will come knocking on my door further mistrust of the police, and less confidence in the criminal justice system, was demonstrated by this statement: • i really don’t trust the police at all the 21% of young offenders held in care and separation units was referred to obliquely in this statement:38 • he can’t ride his bang up this was a reference by the young offenders to one of their number who was physically restless after having been held apart from the rest of the group, as a punishment, in a care and separation unit and was finding it difficult to settle back within the group after coming out of the unit. in most, but not all cases, there was a sense that their life chances were severely diminished, that they were disengaged from education, and their prospects were pretty hopeless, as shown by this statement: 38 hm inspectorate of prisons (n 27) 74 26 • most yps [young prisoners] don’t come to education to learn, they come to associate with others it is hard to tell whether this is a reflection of the young offenders’ view of their future, i.e. it is destined to be bleak, or whether it is a reflection of their view of the relevance of the curriculum they were studying. this would explain why their sense of coherence scores were low. one young offender did, however, express great optimism about his prospects on release. he played sport at an elite level which has probably contributed to a greater sense of coherence in his life as his life is imbued with greater meaningfulness and is in line with the spanish research.39 clements (2004) draws on literature to draw a distinction between ‘education of empowerment’, on the one hand, which is defined as personally transformative education and distinguishes it from ‘education of emancipation’, on the other, which is aimed at critiquing the system’s structures and transcends individual concerns. 40 the young offenders are challenging the power structures in the community and the nation. they are proclaiming their social exclusion; that they lack a voice; and that they are stigmatised for life which is an injustice as the effects of the punishment vastly exceed the prescribed period of punishment. they challenge existing structures in an ‘education of emancipation’ whilst ‘education of 39 paredes-carbonell (n 22) 40 paul clements, ‘the rehabilitative role of arts education in prison: accommodation or enlightenment’ (2004) 23(2) journal of art design education 169, 174 27 empowerment’ would be directed at individual transformation.41 however, there are limits to these emancipatory aspects, as some messages supported the structures of the criminal justice process, and none really challenged their socio-economic status despite the link between this and incarceration or the less positive experiences of black and ethnic minority young offenders in prison. also absent was any challenge to the need to detain them in penal institutions despite the fact that england and wales has, on an historic, comparative basis with other european countries, felt the need to detain so many young people.42 5. unused messages the prison authorities would not allow use of two of the text messages. one was refused as it was thought to glorify crime. the text had been, ‘valleys’ boys on tour’, which was a reference to the offenders coming from the south wales valleys. the other was refused as it commemorated the tragic early death of the brother of one of the young offenders, and therefore was capable of identifying him. the project team asked the prison authorities to speak to the young offender concerned to explain the situation. he attended the third and final session and challenged the team as to why 41 ibid 42 on 1st september 2006 there were 2,751 teenagers in custody in the uk compared to 646 in france and 1,422 in germany. note that the figures are given for the uk even though youth justice is a devolved issue for scotland and northern ireland. source: bbc news, ‘too many’ young offenders jailed’ (13 august 2009) <http://news.bbc.co.uk/1/hi/uk/8198496.stm#map> accessed 27 june 2014 28 http://news.bbc.co.uk/1/hi/uk/8198496.stm%23map the text had not been used, and the situation was explained again. whilst his demeanour was inscrutable, it is reasonable to assume that he was disappointed. the prison authorities also objected to a comment by the interviewer in the film which referred to the number of hours young offenders spend out of their cell each day. the figure was based on information supplied by a young offender to the interviewer, but the authorities insisted it was not accurate. whilst it is possible the figure was not accurate, the amount of (or lack of) young offenders’ out of cell time would surprise many. figures vary depending on the type of regime a young offender is on such as the level of rewards, etc. however, sixteen hours a day confined to a cell by a young offender who is not being punished is still seen by the chief inspector of prisons as being consistent with a well-run young offender institution.43 the comment by the interviewer in the film shows the limits of narrative techniques. there is an issue to explore over the lack of time young offenders, who are young people with a lot of energy to burn, spend outside their cells. however, because the figure provided was contested and may not have been accurate then discussion was pre-empted even though the issue was valid. it creates ethical dilemmas. the project team wanted to empower the young offenders by giving them a voice. the first two workshops encouraged them to think that their voice would be heard without being censored, yet inevitably comments have to be approved by the prison 43 hm chief inspector of prisons, report on an unannounced inspection of hmp & yoi wetherby7th – 18th october 2013 ( hm’s inspectorate of prisons 2014) 14 29 authorities before being broadcast otherwise permission would never have been given to work with them in the first place. any such projects have to make it clear, at every stage, to the young offenders that there is not complete freedom to broadcast their views and that comments have to be approved by prison authorities before being released to the public. 6. the ‘stage event’ when the texts were shown at the stage event there was minimal mediation of the public’s responses. texts were received in a control room where one of the project team was based and there was a slight delay before they were shown on the screen. any texts submitted by members of the public which breached any of the participating institutions’ equalities policies would not have been displayed. in the event, there were no such comments. whilst the stage event was taking place, an interviewer was circulating with a film crew asking onlookers questions and going through the texts, printed on card, with the interviewees asking for their reaction. all onlookers who were asked to give an interview agreed. when asked whether they would employ a young offender a number of people answered that it depended on the offence. crimes of violence were cited more than once as a reason for not employing a young offender. when one interviewee was 30 asked whether she would give a job to a young offender she said, ‘it depends on what he’s done, i suppose, isn’t it?’ when asked by the interviewer when she would not give a job to a young offender, she said, ‘violent crime, things like that. you would want to know they are properly reformed rather than taking them on but if it’s petty crime there’s probably a reason behind it.’ statistically, one fifth of young offenders will have committed acts of violence. 44 some of the offenders who participated in the project had been convicted of serious offences of violence, and would therefore be regarded by many members of the public as unemployable. it is submitted, that although such offences can have serious effects, from discussion with the participants their accounts of their own acts of violence seemed to be the result of teenage impetuosity or poor judgment. it seems unjust that a young offender could suffer for their offence through being unemployable for the rest of their life when they may have genuinely been rehabilitated. a violent offence committed whilst an adolescent is not necessarily an indicator that the person will have a propensity towards violence throughout life; it only proves that they are violent at the time of the offence. it also overlooks the complexity of problems which contribute to youth crime. many offences are linked to alcohol and/or substance abuse. if the underlying problem relating to abuse is resolved then the propensity to violence may disappear. they are more likely to 44 jacobson (n 25) 14 31 have suffered abuse and bereavement. again propensities towards violence may decrease if they receive suitable treatment. there was, however, awareness amongst at least some members of the public that young offenders will have suffered deprivation prior to imprisonment. it tended to be expressed as genuine sympathy for young people who had lived difficult lives. this was the attitude of virtually every interviewee whilst the stage event was taking place. this type of event does have the potential to move forward public debate by getting the public to think through their attitudes towards rehabilitation of young offenders. previous studies have shown that ‘face-ing’ young offenders, i.e. having information about a young offender, means that the public are more like to rate them favourably. 45 previous trials have shown that members of the public are significantly less punitive when given extra background information about a young offender than those given basic information. 46 the public were generally sympathetic to the young offenders possibly because of the fact that they had discovered more about them. of the twelve people interviewed, all expressed some degree of sympathy for the young offenders. as the whole idea was that the conversation could not be controlled some messages, inevitably, were frivolous: 45 kn varma, ‘face-ing the offender: examining public attitudes towards young offenders’ (2006) 9(2) contemporary justice review 175 46 varma (n 47) 178 32 young offender: my favourite moment when my ex mrs gave birth to my baby. now my girlfriend’s pregnant. texted reply: get drunk and smoke in answer to the same message an interviewee said, ‘that’s sad isn’t it? they can’t be there for the baby’s first months or days.’ there was also some cynicism expressed about the process: young offender : s*** sticks for life (this was the from it appeared on the screen). texted reply: how much censoring are you doing b00110ks although there was less so from interviewees, ‘i suppose that’s true, isn’t it? everyone makes mistakes. you know what i mean?’ although a less sympathetic tone was adopted by another interviewee who said, ‘i suppose prison stops some people doing it again, but some people just live off it.’ the public did show awareness of the lifelong effects of stigmatisation as shown by these exchanges: young offender: as soon as you’ve been in once the police will come knocking on my door. texted reply: are we free? in answer to the same message an interviewee said, ‘i think it almost becomes like a vicious circle when you’re a young offender. there’s always the fear of being picked up for something again. it stops you living a proper life really, in the way you should do. if i 33 interpret this right, the person probably has redeemed themselves but can never quite free themselves from their past and it’s quite sad.’ another interviewee was prepared to criticise the criminal justice system with its historic tendency to incarcerate large numbers of young offenders in england and wales, ‘it shows you need to reform how you’re doing it and why you’re doing it. whether that’s lessening what you are locking people up for or having, you know, a work study programme or community service instead …because locking impressionable young people up with tons of other offenders, it just means they are more likely to commit another crime.’ there were signs of a connection being made. in response to a text which said, ‘all i look forward to in my regular day is going to bed,’ one interviewee said, ‘that’s when i felt suddenly, you know, some of those small things we start taking for granted until you look at it from the people who are in those kind of circumstances, we feel how important those things are. what i was saying is that for kids, say ten or twelve years old, if they realised this it would change their thought processes, their behaviours for good. i think the impact it has is something you cannot explain. you know, you can feel it here. the feeling has come from [the young offenders] directly.’ members of the public were prepared to engage in repartee or possibly a sideswipe, as is shown by this: young offender: when i got in trouble, i didn’t help myself texted reply: helping myself got me in trouble 34 another did not seem to think life was wonderful on the outside or perhaps it was though necessary to console the young offenders: young offender: i would most like to become a plumber and have a steady job texted reply: we’re free to buy things. look how happy we are! :) 7. the final workshop the documentary film that was made of the stage event was shown to the young offenders. the atmosphere of this final workshop was very different from the first two when the text messages were being prepared. whilst they had initially been exuberant, but probably no more so than adolescents of an equivalent age at secondary school, in the final workshop they paid rapt attention. this included young offenders who had been brain damaged through glue sniffing who find maintaining concentration over a prolonged period difficult. the prison officers who were present commented that they had never previously seen such sustained concentration from them. their reaction was initially curious. early in the film three women appear who were a grandmother, mother and daughter from the same family. the grandmother is interviewed and is highly sympathetic to the young offenders. one of them shouted out ‘bitch’ which was particularly surprising as grandmothers were widely identified 35 as a supportive figure in the earlier workshops. shortly following this outburst one of the young offenders burst into tears, and was followed by others. there are a number of possible explanations for this reaction. as already noted, young offenders frequently suffer from low self-esteem and often do not feel that they are listened to. this is borne out by the text messages they prepared. it could be that a public event where random members of the public treat their comments with great seriousness was an unprecedented and overpowering event in their lives. secondly, a young offender institution is a dangerous place for an adolescent. one quarter of young offenders complain of having been victimised in prison.47 this could well lead to the need to adopt an invulnerable, ‘hard man’ persona to their fellow offenders to deter any attempts at victimisation. this could be an ‘external’ self which bears a weak relationship to the prisoner’s interior life or their ‘internal’ self, which may be tormented by homesickness, anxiety, and any other number of vulnerabilities. it is possible that the effect of the film was to break down the wall between the external and internal self so that they were able to present a more authentic face to the world. such an emotional reaction shows that the group communally underwent a ‘felt’ experience, which suggests that it was particularly meaningful for them.48 this greater authenticity in their emotional displays has the potential to increase trust within the group. it could help with the manageability of their emotions so develop their sense of coherence, which, in turn, could lower 47 hm inspectorate of prisons (n 27) 75 48 anne reuss, ‘prison(er) education’ (1999) 38(2) the howard journal 113, 124 36 reoffending rates. the second sense of coherence questionnaire showed 20% higher scores and, therefore a better sense of coherence, on questions such as ‘i feel confused, mixed up’, but as the sample was small and it was beyond the power of the project team to control the group. the strength of the emotional reaction took the project team by surprise. this meant that there was an insufficient framework to deal with it. it is hard to discuss this publically with young offenders when it is known that they are living in an environment rife with bullying and harassment. it would be better to have had breakout sessions where the young offenders have the opportunity to discuss their feelings privately. conclusions the project was experimental in nature and the ‘stage event’ took place on one day in one city so there are limitations on the extent to which it is possible to generalise about the project. however, it does show that this type of interdisciplinary work does have the potential to engage in meaningful community legal education. use of narrative is sometimes criticised for not being clear as to the type of legal response that is required in answer to a particular problem. yet it was clear from the young offenders’ accounts that they suffer a lifelong blighting of employment prospects, which is a well-defined problem. whilst the solution is less clear, it is 37 clear that rehabilitation is the area that needs to be on the agenda. it can therefore be a useful part of a student’s clinical legal education as they can work on specific solutions where a general area for concern has been identified and it places their learning and teaching in context. it offers the possibility of enabling students to reflect critically on the structure of the criminal justice system by witnessing its effects firsthand, and getting them to think of solutions to problems such as lifelong blighting of opportunities as a result of imprisonment. such ‘education of emancipation’ will complement other approaches on their programmes. it creates the possibility of assisting in the rehabilitation of young offenders. the sense of coherence questionnaires, the observations of the prison officers at the third workshop and the emotional reaction of the young offenders all point to the project having enhanced the young offenders’ self-esteem. the seriousness with which their views were taken could be significant in building self image and reconstructing their identity which is seen as a necessary precondition to them succeeding in educational activities. it can help improve the young offenders’ self-awareness as they are afforded greater insight into how they are perceived by the public at large. this can help them connect, as the spanish sense of coherence research shows that young offenders 38 typically have a weak connection to community. 49 they can be reassured that attitudes towards them are sympathetic albeit conditional. the lessons they can learn from the reaction to their narrative could help them overcome the stigma they face and which parts of the narrative they need to reveal to overcome prejudice. for example, as there is a particular prejudice against young offenders who have committed acts of violence, they need to be aware that people need to know the underlying causes such as drink or alcohol related offences or impetuosity and demonstrate that these underlying causes have been successfully addressed. in this way, use of narrative helps reconnect them with society and breaks down their isolation. undergraduate law students, have the potential to add a lot of value to a project of this nature in excess of academic staff. young offenders in prison education have a particularly strong need to identify with their educators, to see them as role models with a shared understanding of their culture.50 there are a number of difficulties which remain to be overcome. any art course as part of a prison education programme has to fight for survival. this puts a premium on demonstrating measurable improvements in projects of this nature, and having the research skills to be able to do this. the project did experience difficulties in measuring the offenders’ increases in their self-esteem. sense of coherence 49 paredes-carbonell (n 22) 50 hurry (n 12) 27 39 questionnaires were distributed and completed at the beginning and end of the project but there was a lot of churn in the offenders involved in the project in its various stages. offenders were not always available because they had meetings with probation officers or social workers, had been placed in a care and separation unit, or were released. some of the offenders who completed questionnaires at the end had not completed them in the beginning making measurement in the change of sense of coherence challenging. in future, the project needs better coordination with prison officers, and the project team needs to explain to them the reason behind the sense of coherence questionnaire and work with them to ensure there is a viable control group. churn is inevitable in a secure environment, and will always occur, but that should not prevent the formation of a viable control group. clinical legal education students will need an ethical awareness of issues relating to this type of project. there is always the possibility of imposing a ‘privileged’ voice in respect of offenders who do not see themselves as victims at all. this creates a dilemma as to the extent to which they should prompt or challenge young offenders when they do not discuss issues such as their socio economic status; institutional racism; victimisation within prisons or recidivism rates when there is evidence to suggest that these are problems. do you probe young offenders when they say they are satisfied with the standard of their legal representation? at what point does it cease to be the offenders’ own authentic voice if you do? 40 another ethical consideration is the need to be aware of managing the young offenders’ expectations, for example, the text message which was a memorial to the dead brother of a young offender and which was not released by the prison authorities. it is best to stress throughout the process that not all messages are able to be used even if they are of great personal significance. the main benefit for clinical legal students is that they experience more perspectives on the criminal justice process than could be gleaned from other educational approaches. their exposure to young offenders’ narrative gives them a deeper understanding of those at the centre of the process. 41 seeing things as we are. emotional intelligence and clinical legal education dr colin james* introduction we do not see things as they are, we see things as we are.1 is there room for happiness in legal practice? should lawyers expect to be reasonably satisfied in their work? if we want to answer yes to these questions can we as clinical legal educators help law students to develop the personal skills, not just the legal skills they will need in practice? some research shows that lawyers tend to be thinkers rather than feelers, and those lawyers who are thinkers are more satisfied in their work than those who are feelers.2 other research shows that many lawyers are unhappy at work and that dissatisfaction can reduce the quality of legal practice.3 what can clinicians do to help students cope with stress after they enter legal practice, to make appropriate decisions about career directions, and to still focus on being good lawyers? emotional intelligence is no longer a new concept. those who have read nothing about it can imagine it probably means an intelligent use of our emotions. in fact few are aware of how much their emotions inform their ‘rational’ decisions, not just their ‘irrational’ behaviour. emotions not only affect how we think but also the values we hold and the attitudes we choose. becoming aware of the inevitable emotional influences helps us to understand ourselves and others, to anticipate and to interpret behaviour and attitudes in ourselves and others. developing our emotional intelligence primarily involves improving our self-awareness in ways that will benefit our interactions with clients, judges, juries, colleagues, senior partners, friends and family. it is not too grand to suggest that encouraging law students to improving their emotional intelligence will help them both to be better lawyers and to enjoy their practice. seeing things as we are. emotional intelligence and clinical legal education 123 * university of newcastle legal centre, australia.. a version of this paper was presented at the third international journal of clinical legal education conference & the eighth australian clinical legal education conference in melbourne, 13–15 july 2005. 1 anais nin 2 see susan daicoff (1997), ‘lawyer, know thyself: a review of empirical research on attorney attributes bearing on professionalism’, 46 am. u. l. rev. 1337, at pp.1361–62, 1365–66 and 1392–93. 3 see below at nn.3–5, and accompanying text. this paper considers the relevance of emotional intelligence for the cognitively dominated law school. i describe the crisis in the american legal profession and suggest how those problems are likely to be replicated in australia. i examine what little we know about the impact of law schools on students and find the extant research is not encouraging. the paper considers how clinical legal education provides the best opportunities to engage with students on levels that could make a difference to their inner wellbeing in practice. i then look briefly at our developing understanding of emotional intelligence and its relevance in clinical legal education. the last part considers specific opportunities already in many clinical programs for encouraging students to develop their emotional capacities. if we want to produce confident and competent graduates for the long haul, they must also be balanced and happy in themselves. actively recognising emotional intelligence in clinical legal education will ultimately enhance those personal qualities that help lawyers cope with stressful situations. helping students to develop their emotional competencies will help them to survive in legal practice, to enjoy their work, and it will make them better lawyers. lawyer burnout law is a dangerous profession. over the past two decades studies in america have shown that lawyers suffer significant levels of depression, other mental illnesses, alcoholism, drug abuse and poor physical health, in addition to high rates of divorce and suicidal ideation.4 a johns hopkins study in 1990 found that lawyers were 3.6 times more likely to suffer a major depressive disorder than others of the same social demographic.5 some american researchers have described a ‘tripartite crisis’ in the legal profession, consisting of a decline in professionalism, a decline in the public opinion of lawyers and a decline in the wellness and satisfaction levels of practicing lawyers.6 in australia there is less local data, but what information there is suggests deterioration in the wellbeing of lawyers. high staff turnover is an obvious indicator and a growing concern for law firms who receive the majority of law graduates.7 another signal of problems is the high rate of lawyers leaving the profession. it seems fair in part to blame inflexible working conditions making it difficult for lawyers with parenting responsibilities. in 1989 a survey on the satisfaction of victorian lawyers showed that in one year 6% of male practitioners and 12% of women practitioners did not renew their practising certificates.8 the main reason given by men was ‘lack 124 journal of clinical legal education december 2005 4 american bar association, ‘the report of “at the breaking point”: a national conference on the emerging crisis in the quality of lawyers’ health and lives – its impact on law firms and client services’ 5–6 april 1991; amiram elwork and g andrew h benjamin (1995), ‘lawyers in distress’, journal of psychiatry & law, (summer), 205–229; j a connie, j a beck et al. (1995–96), ‘lawyer distress: alcohol – related concerns among a sample of practicing lawyers’, 10 journal of law and health, vol.1, 1995–96, p.50. 5 william w. eaton et al. (1990), ‘occupations and the prevalence of major depressive disorder’, 32 journal of occupational medicine, p.1079, at 1081–83. 6 susan daicoff (1998), ‘asking leopards to change their spots: should lawyers change? a critique of solutions to problems with professionalism by reference to empirically-derived attorney personality attributes’, 11 geo. j. legal ethics 547; martin seligman, paul verkuil and terry kang (2005), ‘why lawyers are unhappy’, deakin law review, 10(1). 7 olivia prodan (2003), ‘turn and turn about: employee turnover in legal firms can be predicted and steps taken to avert this loss of human capital’, 77(4) law institute journal (law institute of victoria) 90; john quinlan, (2003) ‘human resources: minding the family’ law institute of victoria, 77(12) p.96; 8 law institute of victoria, ‘career patterns of law graduates’, law institute journal, may 1990, p.342–43. of satisfaction’ (shared with ‘personal/lifestyle’). women gave ‘personal/lifestyle’ as the biggest reason, followed by ‘family commitments’ then ‘lack of satisfaction’.9 another victorian study in 1999 showed up to 30% of private practitioners were considering leaving their jobs.10 by 2000 44% of lawyers in sydney and melbourne were considering leaving their present firm.11 also in 2000 an experienced legal recruiter in queensland warned that the majority of lawyers were unhappy at work and were looking for change.12 an australian survey of lawyers in 1995 found that their most frequently needed skills were oral and written communication.13 necessary interpersonal skills like communication are not taught in law schools, except for those with good clinical legal education programs. similarly a study in western australia in 1999 identified communication failures within the firm as the biggest cause of dissatisfaction among legal practitioners.14 the study found also that solicitors had inadequate control over factors which impacted on their work, there was unfair allocation of “interesting work”, expectations were not communicated, there was no clear vision and direction from firm partners, and salary was inadequate compared to the level of responsibility. in new south wales as early as 1991 the law society of nsw was sufficiently concerned about stress levels in the profession it established lawcare, a counselling service for practitioners and their families. by 1998 solicitors were working ‘excessively long hours’, more than in other professions, and it was impacting on their family and personal lives.15 in 2001 the professional standards department of the law society of nsw found that unacceptable numbers of solicitors faced personal difficulties such as depression, alcohol dependency, gambling, stress and even serious illness.16 these difficulties impact not only on the quality of life among lawyers but on the quality of their work. complaints about legal practitioners, including failure to respond to clients’ enquiries and excessive delays in handling matters led to the creation of a new service for lawyers called the lawyers assistance program inc.17 subsequent studies commissioned by the law society of new south wales from 2001 to 2004 show between 13% and 18% of responding solicitors were either dissatisfied or very dissatisfied with their jobs.18 in 2004, 52% of nsw respondents indicated that seeing things as we are. emotional intelligence and clinical legal education 125 9 ibid. 10 victorian women lawyers association, taking up the challenge, may 1999, p19 11 lucinda schmidt, “law is hell”, business review weekly, 29 september 2000, p70; while this statistic does not necessarily indicate dissatisfaction with the practice of law, it reflects poorly on stability in the profession and legal firms’ capacity for staff retention. in 2001 the young lawyers’ section of the law institute published some ‘horror stories’ from complaints by young lawyers over a number of years about the employment conditions in some victorian law firms: law institute of victoria, young lawyers’ section, thriving and surviving, april 2001, p1. 12 ‘queensland lawyers looking to leave’, lawyers’ weekly, 15 december 2000, p.2. 13 sumitra vignaendra (1998), australian law graduates’ career destinations, centre for legal education, commonwealth of australia. in 2000 another government survey of employers found that communication skills were still among the biggest deficiencies of graduates: a c nielsen research, (2000). employer satisfaction with graduate skills. detya: eip. report no. 99/7. 14 law society of western australia & women lawyers of western australia, (ibid 1999), p.22. 15 ‘quality of life in the legal profession report’, law society of nsw 1999; ‘quality of life: new momentum brought to legal workplace reform’, law society journal (nsw australia), september 1999, 37 (8) p.40. 16 louise aaron (2001), ‘members services news: a new program to help members in difficulty’, law society news, april 2001, p.26 17 http://www.lap.com.au/lap_background.html on 22 february 2006. 18 law society of new south wales, remuneration and work conditions report, 2001, 2002, 2003, 2004, mercer human resource consulting, sydney. stress at work had increased over the previous 12 months and about a third reported experiencing discrimination, harassment, intimidation or bullying. stressors on the legal profession include the perceived demands for growth, deregulation and competition and the effects of globalisation and changing technology. law firms may concentrate on these issues at the expense of their solicitors, many of whom are stressed from high workloads, competitive billing, hierarchical workplaces and inflexible work practices. in addition, some have to cope with distressed clients, aggressive colleagues, hostile lawyers for other parties and difficult judges. law schools without clinical programs assume that practical legal training, the college of law or articles training programs are sufficient to provide the skills and personal development for graduates to practise successfully. in australia since 1983 the lawyers practice manual has helped steer many lawyers in the right direction when they are unsure about legal practice or have a particular type of matter for the first time.19 however knowing the law, and knowing about legal process is not enough. as neil rees indicated in 1980, many lawyers suffer burn-out because they frequently work with people experiencing distressing problems and are often the harbingers of bad news in their advice; they have to communicate with people at a deep level but get no training in interpersonal skills; and some are very sympathetic with their clients but tend to over-commit and take every loss personally.20 recognition of these problems helped the growth of clinical legal education, which has made inroads in australia since the 1980s.21 many clinical programs provide students with experiences that help them develop their interpersonal skills. however the combined impact of clinical legal education so far on the australian legal profession may not be enough to stave off a crisis. most academics and practitioners would agree that practical legal training helps graduates entering the profession as well as benefiting their employers and the community they serve. however, the debate has been dominated for too long by a continuum between doctrinal legal education and practical legal training.22 it appears that existing education and training of law students is insufficient to equip graduates adequately to enter the profession without significant distress for the lawyer and risks for clients. there may be no improvement in the levels of satisfaction, the quality of service or the long-term survival rates of practitioners until law schools recognise the importance of personal development in the preparation of law students for the legal profession. 126 journal of clinical legal education december 2005 19 the lawyers practice manual is an updated looseleaf service available for most australian states though thomson law book co. 20 neil rees (1980), ‘legal services: coping with burnout’, legal services bulletin, april 1980, pp.80–84. 21 the first clinical legal education program began at monash university in 1975 and the second through the university of new south wales in 1981; simon rice with graeme ross (1996) refers to several unpublished reports on the early development of legal clinics in australia a guide to implementing clinical teaching method in the law school curriculum, centre for legal education, sydney at pp.5–6. 22 rice cautioned against confusing practical legal education with clinical legal education (ibid 1996, p.9). the damage of law school education: what is left when the facts are forgotten.23 there has been increasing concern in america as more researchers conclude that traditional legal education contributes to depression among law students and alienation in the legal profession.24 krieger and sheldon found that law students with normal mental health patterns at orientation by second year display significant anxiety, depression and reduced motivation: the data reveal additional changes that are very troubling, including dulling of student motivation and goal-directed striving, and shifts away from initially positive motivation and altruistic values toward external, imposed values and motives.25 there is little empirical research on the well-being of australian law students but the similarities between the legal systems in australia and america are enough for concern. in both countries the conventional and primary role of law schools is to inculcate doctrinal legal theory and to teach legal analysis. both systems encourage students to ‘think like a lawyer’, without clarifying that that form of critical and pessimistic analysis is a limited tool for specific purposes.26 both systems focus on academic honours as the primary, if not sole, determinant of success. neither system addresses the negative public image of lawyers as being fundamentally self-interested nor emphasises the socially positive contributions by lawyers, including community work, human rights and public interest cases and social reform agendas. there are important differences however, including the significant presence of legal clinics and externship programs in american law schools compared with the australian system. american legal education is a graduate system involving only three years while most australian law students enter law school as undergraduates, attending from four to five years, and are typically younger and potentially more vulnerable to stressors. a 1979 study found that causes of stress among australian law students included a heavy work load, high level of competition, isolation and loneliness, emphasis on professionalism narrowly defined rather than humanistic or philosophical issues, and ‘a paucity of ongoing positive feedback reinforcement’.27 since then a significant body of research has confirmed the importance of seeing things as we are. emotional intelligence and clinical legal education 127 23 g. gibbs, (1990), ‘twenty terrible reasons for lecturing’, oxford centre for staff and learning development. 24 kennon m sheldon and lawrence s krieger (2004), ‘does legal education have undermining effects on law students? evaluating changes in motivation, values, and well-being’, 22 behavioral sciences and the law, 261–286; linda g mills (2000), ‘affective lawyering: the emotional dimensions of the lawyer-client relation’, in dennis p stolle, david b wexler and bruce j winnick (eds) practicing therapeutic jurisprudence: law as a helping profession, carolina academic press, durham nc; matthew m dammeyer & narina nunez (1999), anxiety and depression among law students: current knowledge and future directions’, 23 law and human behavior, 55 at 63; duncan kenndy (1992), ‘legal education as training for hierarchy’, in david kairys (ed.) the politics of law: a progressive critique, basic books, new york; william brennan jr (1988), ‘reason, passion, and the progress of law’, 10 cardozo l. rev. 3.lynne henderson (1987), ‘legality and empathy’, 85 mich. l rev. 1574; 25 lawrence s krieger (2002), ‘institutional denial about the dark side of law school, and fresh empirical guidance for constructively breaking the silence’, 52 journal of legal education, 112 at 114. 26 ‘thinking like a lawyer’ among other things is deeply pessimistic. it includes not just critical analysis of all possibilities, but envisaging the worst case scenario to ensure protection for the client. 27 phyllis w bexk, j d & david burns, md (1979) ‘anxiety and depression in law students: cognitive intervention’, 30 journal of legal education, 270, at 285–86. feedback to students.28 however in law schools it seems only clinical programs provide enough feedback for students to maximise their opportunities for personal development and minimise the damaging effects of anxiety over performance.29 the new focus in australian legal education in recent decades is towards practical legal training. several enquiries have recommended that law schools introduce practical legal training into their curriculum, despite opposition from some universities, some governments and some in the legal profession.30 the most recent report was by the australian law reform commission in 1999 which called for legal education to focus on what lawyers need to do rather than traditional notions of what they need to know.31 universities were generally unresponsive and by 2001 large law firms had commenced their own in-house practical legal training for newly employed lawyers. however the law council of australia complained there was no coordination or monitoring of standards, and accused the commonwealth government of starving law schools of funds at a time when studying law was becoming very popular.32 in the meantime, clinical legal education was becoming more established in australian law schools and many of these clinics are part of the community legal centre movement.33 arguably the defining characteristic of good clinical legal education in australia has not been skills training, although that is important, but involves ethical and personal development of the student under legal supervision.34 because legal clinics embrace the ‘real world’ of legal practice with live-client situations, they serve as a bridge between the legal academy and the legal profession. legal education is only one ingredient in the creation of professional and happy lawyers, although an important one. personality issues are also relevant and it is likely that law students ‘self-select’ according to popular preconceptions of what legal practice is about. american research in 1967 showed that while law schools attracted students of all personality types, most law students were inclined towards a ‘thinking’ perspective rather than ‘feeling’, and those who were inclined to feeling were more likely to drop out of law school.35 a 1995 study found that 78% of first year 128 journal of clinical legal education december 2005 28 a mutch (2003), ‘exploring the practice of feedback to students’, active learning in higher education vol 4 no 1; w huitt (2004), ‘the importance of feedback in human behavior’, educational psychology interactive. valdosta, ga: valdosta state university. 29 victor m. goode (2000), ‘there is a method(ology) to this madness: a review and analysis of feedback in the clinical process’, 53 okla. l. rev. 223; daniel j. givelber, brook k. baker, john mcdevitt & roby miliano (1995), ‘learning through work: an empirical study of legal internship’, 45 j. legal educ. 1 (1995). 30 the pearce report (1987), the mcinnis and margison report (1994) and the australian law reform commission report (1999), see next footnote. dennis charles pearce, enid campbell, don harding. ‘australian law schools: a discipline assessment for the commonwealth tertiary education commission’, canberra, agps, 1987; craig mcinnis and simon marginson. ‘australian law schools after the 1987 pearce report’, agps, 1994. 31 australian law reform commission report no.89, ‘managing justice: a review of the federal civil justice system’, december 1999 at para 2.21. 32 law council of australia, ‘2010: a discussion paper – challenges for the legal profession’, executive summary, september 2001, also p.74. 33 mary anne noone (1997), ‘australian community legal centres – the university connection’, jeremy cooper and louise g trubeck (eds) educating for justice, ashgate, sydney, 257–284. there are currently about 160 members of the national association of community legal centres, see http://www.naclc.org.au/ 34 rice (op cit 1996, pp.30–32) discusses the importance of personal development as a part of professional development. 35 paul vanr. miller (1967), ‘personality differences and student survival in law school’, 19 journal of legal education 460–467, at 465–66. these findings were supported by research in 1994 finding that lawyers prefer thinking to feeling compared with the general population, in lawrence r richard, psychological type and job satisfaction among practicing lawyers in the united states, 22 (1994) (unpublished ph d dissertation, temple university, philadelphia). law students were ‘thinking types’ as opposed to ‘feeling types’ on the myers-briggs type indicator.36 other research on lawyer wellbeing suggests it is precisely the thinking types who need guidance on how to manage their feelings.37 in 2002 barrette critiqued extant research in legal education for ignoring the importance of selfawareness arising from experiential learning.38 he argued that almost all researchers focused on what he called the lowest level of legal content and legal process; some researchers examined the second level, encouraging students to understand the application of legal theories and making the experience intelligible. the third level barrette found had received virtually no attention: how our attitudes, beliefs, values and perspectives affect us as lawyers. he asks: how can a student learn from an experience when the adrenaline is pumping so strongly that the student does not recall even speaking to the court, oblivious to what or how any dialogue may have taken place?39 some may be unconcerned that some students and lawyers who are inclined to ‘feeling’ drop out because they may be unsuited to legal practice. however our failure to support the broad range of aspiring lawyers would aggravate at least two of the problems identified in the ‘tripartite crisis’: the decline in professionalism broadly defined and the decline in the public opinion of lawyers and the legal profession. there is a case for changes in both legal education and legal practice to attract and support broader entry to the profession, perhaps especially for those inclined to feeling, who appear to be at greatest risk. law schools collude with legal systems and corporate employers to continue privileging intellect over other human qualities. most law schools offer academic medals that reward intellectual achievement as the primary goal. they ignore the early research suggesting that iq differences have no relationship with performance in law schools.40 empirical research is yet to be done measuring the emotional intelligence of law students and graduates, but there are studies in education that demonstrate enhancing emotional intelligence improves academic performance.41 should we now ask whether clinical legal education can make a difference? seeing things as we are. emotional intelligence and clinical legal education 129 36 v r randall (1995), ‘the myers-briggs type indicator, first year law students and performance’ 26 cumb l rev 63 at 108; randall also found that 68% preferred judgment and 22% preferred perception. 37 susan daicoff (1997) discusses several studies in ‘lawyer know thyself: a review of empirical research on attorney attributes bearing on professionalism’, 46 am. u. l. rev. 1337, at 1361–62, 1365–66 and 1392–93. 38 joseph a barrette (2002), ‘self-awareness: the missing piece of the experiential learning puzzle’, 5 t m cooley journal of practical and clinical law, 1–12. 39 ibid p.2. 40 d. bligh (1977), what’s the use of lectures? exeter da: intellect (5th ed. 1998); hugh brayne (op cit 1996), at p.46. 41 joseph e zins, michelle r bloodworth, roger p weissberg and herbert j walberg, (2004) building academic success on social and emotional learning: what does the research say? teachers college, columbia university; r w blum, c a mcneely and p m rinehart, (2002) improving the odds: the untapped power of schools to improve the health of teens. minneapolis, mn: university of minnesota, center for adolescent health and development; k f osterman, (2000) ‘students’ need for belonging in the school community’, review of educational research,70; c c lewis, e schaps and m s watson, (1996) ‘the caring classroom’s academic edge’, educational leadership, (alexandria va) vol.54, 16–21. the hope of clinical legal education the lawyer who behaves like a jerk in court is not an ‘aggressive advocate’ with an ‘assertive strategy’, but a jerk.42 good legal clinics encourage students to fully engage with the complexities and ambiguities of legal practice, and to think about the political situation of their clients, including opportunities for addressing the public interest and the need for law reform. as hugh brayne opined: ‘it is not enough to teach law students how legal concepts and arguments fit together, they should be encouraged to question why.’43 currently there are 30 law schools in australia, of which less than half offer clinical legal education and less than half of those have an in-house legal clinic.44 the school of law at murdoch university for example runs a strong clinical program at the southern communities advocacy and legal education service inc. (scales), at rockingham, western australia, which guides students in managing their own cases under supervision in a general legal practice and an advanced clinical program in immigration law.45 another very successful clinical program is offered by the university of newcastle legal centre which engages students on major public interest cases, involving not just the gathering and analysis of facts but reflecting on their implications in systemic failures and drafting submissions to inquiries, commissions, law reform bodies and coronial inquests.46 the australian experience suggests the closer supervision, focus on reflection and regular feedback of the in-house legal clinic can provide the best opportunities of integrating the personal, theoretical, analytical, and ethical goals with the cognitive knowledge and practical skills necessary for a rounded legal education.47 the integration is critical because if law students practised the way we conventionally taught them doctrinal law, they would tend to ignore everything except the basic facts. in order to deliver the ‘correct’ legal answer some would ignore the client’s background and cultural context, the opportunities for ‘non-legal’ assistance, the influence of policy and current developments, personal nuances involving the client’s situation, perhaps even what the client wants.48 brayne argues we can encourage ‘deep learning’ by creating opportunities for students to feel a 130 journal of clinical legal education december 2005 42 daniel r coquillette (1994), 72 n c l rev 1271 43 hugh brayne (1996), ‘getting by with a little help from our friends’, 2 contemporary issues in law, no.2, pp.31–51. 44 law council of australia (op cit 2001); edith cowan university in western australia has opened a law school since this report listed 29 law schools in australia at p.79. 45 on 10 december 2002 scales was awarded the human rights award in law from the human rights and equal opportunity commission. see http://www.hreoc.gov.au/media_releases/releases _2002.html 46 ray watterson, robert cavanagh and john boersig (2002), ‘law school based public interest advocacy: an australian story’, international journal of clinical legal education, june 2002, 7–36. 47 mary anne kenny, irene styles and archie zariski (2004), ‘looking at you looking at me: learning through reflection in a law school’, e law no 1, vol 11, http://www.murdoch.edu.au/elaw/issues /v11n1/kenny111.html ; ‘no other learning experience in law school combines the extraordinarily varied and dramatic context of real cases and problems with the opportunity for intensive teaching, supervision, growth and reflection’, robert d. dinerstein (1992), report of the committee on the future of the in-house clinic, 42 journal of legal education,. 511, 517. 48 peter b knapp (2003) observed that some students were unable to prepare advice for a client because they were so conditioned by concentrating on the historical facts of appeal court cases in class they could not anticipate future outcomes because the facts had not happened yet. ‘from the law school to the classroom: or what i would have learned if i had been paying more attention to my students and their clients’, 30(1) william mitchell law review, pp.101–108. need to make sense of the world.49 clinical legal education does this by exposing students to the chaotic or ‘built in dissonance’ of life, where nothing is predictable, unlike facts in legal text books. the many elements of real-life legal problems often do not make sense at first, yet we pretend otherwise in the doctrinal classroom. brayne’s description of the highest form of educational development that can happen in the legal clinic evokes emotional intelligence: it might involve a new outlook on life, a change in political direction, a re-ordering of personal priorities, an increase in judgment and wisdom. a lot of growing up takes place in higher education... the challenge is to introduce the students to curricular experiences while learning law that matures them.50 the more mindful we as clinicians are of the student experience the better we can support them through stressful experiences and help them to reflect, to learn and develop competence and confidence. ideally students should be informed and engaged in the process, so that personal development is no longer in the background, happening unconsciously or by default. whether we call it deep learning, personal growth, or a maturing process, it involves developing emotional intelligence. the discovery of emotional intelligence the emotions are not skilled workers.51 emotions were largely ignored during the first century of modernist science.52 after 1912 when wilhelm stern proposed the term ‘intelligence quotient’ (iq) as a universal measure of intelligence, others began to dissect it into components.53 one part, called ‘social intelligence’, was defined in 1920 by the american scientist thorndike as ‘the ability to understand and manage men and women, ... to act wisely in human relations’.54 thorndike’s notion of social intelligence was overlooked for several decades although scientists seemed perplexed about why many people with high iq performed poorly at work and were less happy than people with average iq.55 some argued that personality types explained the differences in how people used their intelligence. during the 1950s various personality tests were created to help explain individual propensities but like theories of iq, most theories behind personality tests were rigid and tended to assign people into categories.56 seeing things as we are. emotional intelligence and clinical legal education 131 49 hugh brayne (op cit 1996), at p.45. 50 ibid 51 ern malley (aka harold stewart and james mcauley) 52 the word ‘emotion’ does not appear in the index of the 1978 edition of abnormal psychology by g c davison and j m neale, new york, wiley; k t strongman provides a good summary of the main theories of emotion in the psychology of emotion: from everyday life to theory, 5th ed. 2003, wiley, chichester. 53 wilhelm stern (1912), the psychological methods of intelligence testing baltimore, warwick & york, 1914; other important works included alfred binet, théodore simon and clara harrison town (1912), a method of measuring the development of the intelligence of young children,lincoln, ill., courier; baltimore, williams & wilkins, republished by williams printing co. nashville, tenn. 1980; lewis terman(1906), genius and stupidity, arno press, new york, 1975. 54 e i thorndike (1920), ‘intelligence and its use’, 140 harper’s magazine, pp.227–235, 228. 55 david c mcclelland, ‘testing for competence rather than intelligence’ (1973) 46 american psychologist; see also ronald e walker and jeanne m foley (1973), ‘social intelligence: its history and measurement’ 33 psychological reports, 839–864. 56 there are at least six theories of personality in western psychological discourse, each providing its own set of measurements: bender-gestalt test, californian psychological inventory, maudsley personality inventory, minnesota multiphasic personality inventory, myers-briggs type indicator and repertory grid technique. r m ryckman (2000, 7th ed.), theories of personality, belmont, ca., wadsworth. a breakthrough came in 1990 when salovey and mayer published their concept of emotional intelligence based on a set of social skills and abilities.57 however, the concept did not capture the public mind until 1995 when psychologist daniel goleman published his best-seller emotional intelligence: why it can matter more than iq.58 goleman’s book popularised the concept of emotional intelligence, although it has been salovey and mayer’s definition that has most influenced the scientific community. currently there are as many theories of emotion as there are different schools in psychology. some focus on biological and physiological notions and others are based on cognitive assumptions, relating to what and how we think.59 some consider emotions to be a product of culture or the social environment.60 other theories are about specific emotions such as anger, anxiety, happiness, sadness, grief, love and shame, although there appears to be a lot more research done on the negative emotions than positive ones.61 the popular view of emotions sees them as ‘feelings’, but this ignores their cognitive components which tie them strongly to our values and beliefs.62 emotions appear to arise in the limbic system of the brain which includes the amygdala and the hippocampus. daniel goleman and others pointed out that when we sense something our logically competent cortex never receives pure 132 journal of clinical legal education december 2005 57 p salovey and j d mayer (1990), ‘emotional intelligence’, 9(3) imagination, cognition and personality, pp.185–211. the authors adapted the last two of howard gardner’s ‘multiple intelligences’ from his frames of mind, basic books, new york, (1983) 1993, which were inter-personal and intra-personal intelligence. see also j d mayer, m t dipaolo & p salovey (1990), ‘perceiving affective content in ambiguous visual stimuli: a component of emotional intelligence’, 54 journal of personality assessment, pp.772–782. the first use of the term ‘emotional intelligence’ seems to be in a 1985 doctoral dissertation by wayne leon payne titled ‘a study of emotion: developing emotional intelligence; self-integration; relating to fear, pain and desire (theory, structure of reality, problem-solving, contraction/expansion, tuning in/coming out/letting go)’, the union for experimenting colleges and universities, cincinnati, oh 45206-1925. 58 daniel goleman (1995), emotional intelligence: why it can matter more than iq, new york, bantam books. many authors have applied goleman’s concept of ei to management practices in the workplace: hendrie weqsinger(1998), emotional intelligence at work, san francisco: jossey-bass; emily sterrett (2000), the manager’s pocket guide to emotional intelligence, amherst, mass.: hrd press; robert cooper and ayman sawaf (2000), executive ei : emotional intelligence in business, texere: london and new york. 59 for examples of biological and physiological theories see r m nesse, ‘evolutionary explanations of emotions’, human nature, 1990, vol.1 pp.2651–289; r plutchik, ‘the nature of emotions’, american scientist, 2001, vol.89, pp.344–356. for examples of cognitive theories see s schachter j singer ‘cognitive, social and physiological determinants of emotional state’, psychological review, vol 69, pp.370–399; r s lazarus, emotion and adaption, new york: oxford university press, 1991; k scherer, ‘neuroscience projections to current debates in emotion psychology’, cognition and emotion, vol.7, i, pp.1–41. 60 s a shields, speaking from the heart: gender and the social meaning of emotion, cambridge, cambridge university press, 2002; n m ashkanasy, c e j hartel & w j zerbe (eds), emotions in the workplace, westport, ct: quorum books, 2000; m hjort and s laver (eds) (1997), emotion and the arts, oxford: oxford university press. 61 theoretical and empirical research on discrete emotions can be found in m lewis & j m havilandjones (eds), handbook of emotions, new york: guilford press, 2000 and other references can be found in chapter 8 ‘specific emotions theory’ in k t strongman, the psychology of emotion: from everyday life to theory, 5th ed., 2003, john wiley & sons, chichester. 62 adele b lynn (2005) argues unpersuasively that emotions have three components, cognitive, physiological and behavioural, in the eq difference: a powerful plan for putting emotional intelligence to work, amacom, ny, see chapter 4. stimuli, but information via the amygdala which contributes an emotional meaning to the data, and can change the hormonal balance, further influencing the cortex.63 sometimes in an emergency our emotions seem to take over; fear can cause a ‘panic attack’ such as a ‘fight or flight’ reaction, and anger can cause one to want to ‘shoot the messenger’. goleman called this ‘amygdala hijacking’.64 in these cases the amygdala ‘causes’ a person to act irrationally, contrary to their initial intention or how they would normally act, and sometimes contrary to their values. extreme hijacking can cause a traumatic experience with long-term consequences, but can sometimes be resolved with the help of psychotherapy, cognitive or behaviour therapy. some theories claim that people can develop and refine their emotional responses to improve their lives, to be more resilient or to achieve an improved level of personal fulfillment, or ‘self-actualisation’.65 so what is emotional intelligence? one way to view it is as a partnership between our rational brain and the limbic brain. a working definition would be that emotional intelligence is what enables us to manage ourselves and our relationships with others so that we truly live our intentions.66 understanding that emotions inform every decision, it makes no sense to talk of isolating emotions from ‘rational’ thought. our emotional intelligence is our level of awareness of how our emotions affect all our thoughts and behaviour. a common analogy is that when life hands you lemons, your emotional intelligence determines whether you get stuck in bitterness or make lemonade. while iq can measure skills in analysis and strategic thinking, it is emotional intelligence that motivates a person, helps determine their values and attitudes, enables empathy, understanding of others, effective communication and drives the ‘x factor’ that holds it all together. there are some analogies here with maslow’s early theory of self-actualisation, which he described as the coming together of the person.67 salovey and mayer claimed in 1990 that emotional intelligence involved three categories of adaptive abilities: appraisal and expression of emotion, regulation of emotion and utilisation of emotion in solving problems.68 in 1997 they revised their model by emphasising the cognitive components of emotional intelligence.69 the new model has a different focus and consists of four parts: ● perception, appraisal and expression of emotion seeing things as we are. emotional intelligence and clinical legal education 133 63 daniel goleman (ibid 1995). p.297; joseph e ledoux and elizabeth a phelps (2000) distinguish the ‘high road’ taken by stimulus that travels from the thalamus through the cortex to the amygdala, from the ‘low road’, the short-cut when the thalamus communicates directly with the amygdala, for example in threatening situations; ‘emotional networks in the brain’, in lewis and haviland-jones (op cit 2000), pp.157–172, at 159–160. 64 goleman (ibid 1995) pp.94–95; others have called it ‘emotional hijacking’, or ‘limbic hijacking’. 65 abraham maslow coined the term ‘self-actualisation’ as the apex of his pyramid of human needs. a h maslow (1943), ‘a theory of human motivation’, 50 psychological review, pp.370–396. 66 lynn (op cit 2005), p.2. 67 maslow described the self-actualised person as ‘more integrated and less split, more open for experience, more ... fully functioning, more creative, ... more egotranscending, more independent of his lower needs, etc.’ abraham h maslow (2nd ed, 1968), towards a psychology of being, princeton, nj, van nostrand, p.97. 68 salovey and mayer (op cit 1990), p.190–91, figure 1. 69 j d mayer & p salovey (1997), ‘what is emotional intelligence’, in p salovey & d sluyter (eds) emotional development and emotional intelligence: educational implications, new york, basic books, pp.3–31. the 1997 mayer and salovey model has been recognised as the standard by ‘scholars working in the field of emotions’ according to australian management academics peter jordan, neal ashkanasy and charmine hartel (2003), in ‘the case for emotional intelligence in organizational research’, 29(2) academy of management review, pp.195–197. ● emotional facilitation of thinking ● understanding, analysing and employing emotional knowledge and ● reflective regulation of emotions to further emotional and intellectual growth. in the intervening years salovey and mayer became convinced through further research that people’s emotional processes are intrinsic to their cognitive processes and neither should be understood as operating in isolation from the other. their revised model is more process-oriented and incorporates continuing emotional development as part of intellectual growth and personal development. however the original model is favoured by some researchers as suitable for measuring an individual’s current level of emotional development.70 having established the new discourse of emotional intelligence the scientific community is now investigating how to use it to improve our understanding of human experience.71 a significant body of research is growing on the application of emotional intelligence in management and business studies as well as education.72 while some remain sceptical, defending their intellectual high ground, there is little doubt that emotional intelligence is now ‘a pivotal area of contemporary psychology’.73 some education researchers claim it offers opportunities for significant reform across primary, secondary and tertiary levels of schooling, while others more cautiously acknowledge it has at least accelerated recognition of emotional literacy into education programs.74 emotional intelligence in clinical legal education the professional practice of law often requires non-legal answers to human problems whose very existence seems not to be recognised by the legal curriculum.75 given the apparent dangerousness of legal practice one could argue that law schools have an obligation not to just teach legal units, but to prepare students for legal practice at emotional as well as intellectual levels. consequently there is a growing body of research on incorporating 134 journal of clinical legal education december 2005 70 lynn (op cit 2005) proposed a simpler model using five components: self-awareness; empathy; social expertness; personal influence and mastery of purpose and vision, p.28; see also nicola s schutte et al, (1998), ‘development and validation of a measure of emotional intelligence’, 25 personality and individual differences, 167–177. 71 john d mayer, david r caruso and peter salovey, ‘emotional intelligence meets traditional standards for an intelligence’, (2000) 27 intelligence, 267–298. 72 for empirical research on emotional intelligence in managerial and educational psychology see: jordan, ashkanasy and hartel (op cit 2003); m zeidner, r roberts and g m matthews (2002), ‘can emotional intelligence be schooled? a critical review’, 37 educational psychologist, pp.215–231; peter j jordan et al (2002), ‘workgroup emotional intelligence scale development and relationship to team process effectiveness and goal focus’, 12 human resource management review, pp.195–214; abraham carmeli (2003), ‘the relationship between emotional intelligence and work attitudes, behavior and outcomes’, 18(8) journal of managerial psychology, pp.788–813. 73 moshe zeidner, gerald matthews and richard d roberts (2004), ‘emotional intelligence in the workplace: a critical review’, 53(3) applied psychology: an international review, pp.371–399, at 372. 74 zeidner, roberts and matthews (2002 et al), pp 221 and 229. 75 bernard l diamond (1997), ‘psychological problems of law students’, in stephen gillers (ed.) looking at law school, pp.69–70. emotional awareness in legal education, most of which relates to the activities that typically occur in legal clinics.76 in the conservative legal profession many practitioners would construe emotions conventionally as a potential distraction from clear thinking or the intellectual use of reason.77 however they would be more open to accepting that legal practice involves fundamental issues of human rights and discrimination between individuals, including the world of beliefs and principles. philosopher martha nussbaum argues for a strong cognitive view of emotions, saying that ‘emotion is identical with the full acceptance of, or recognition of a belief ’.78 we often call our strong beliefs principles and while both principles and emotions influence the decisions we make, neither has inherent priority. it is irrational to critique emotions for being irrational, because emotions do not eschew cognitive influence. it is only the ‘hijacked’ eruption of intense emotion that is irrational in that sense. it is also irrational to try to deny emotional input in our decisions, as all decisions involve both cognitive and emotional influence. it would seem wiser, in legal practice for example, to be aware of how we feel about our client, the witness, or the judge, so we can know the influences on the decisions we make about the case. personally, we may prefer our own lawyer to work on a cognitive analysis of our legal situation rather than emotive, but we would also prefer that our lawyer empathised with our life situation, agreed with our principles and felt strongly about the same things as we do. the good lawyer then would have a sound knowledge of the law, be very skilful in legal practice, and importantly have the ability to communicate, empathise, understand and relate. lawyers can be emotionally open with clients in helpful ways that do not compromise the ‘objective’ fiduciary and professional qualities of the relationship.79 rarely are such topics discussed in doctrinal law school courses. clinical legal education can provide ideal opportunities for broad and deep discussions with seeing things as we are. emotional intelligence and clinical legal education 135 76 peter reilly (2005), ‘teaching law students how to feel: using negotiations training to increase emotional intelligence’, 21 negotiation journal, pp.301–314; ann juergens (2004), ‘the role of emotion and community in lawyer’s professional excellence’, new york law school clinical research institute, research paper series no 04/05-2; hugh brayne (2002), ‘learning to think like a lawyer: one law teacher’s exploration of the relevance of evolutionary psychology’, 9(3) international journal of legal education, 283–311, where he suggests that much of what purports as rational thought is really rationalisation of emotional preference; marjorie a silver (2000), ‘love, hate, and other emotional interference in the lawyer/client relationship’, in stolle, wexler and winnick, (op cit 2000), pp.357–417; linda g mills (2000), ‘affective lawyering: the emotional dimensions of the lawyer-client relation’, stolle, wexler and winnick, (op cit 2000), pp.419–446; larry richard (2000), ‘the importance of hiring ‘emotionally intelligent’ associates’, 18 pennsylvania lawyer, pp.1–5; marjorie a silver (1999), ‘emotional intelligence in legal education’, 5(4) psychology, public policy and the law, pp.1173–1203; melissa l nelken (1996), ‘negotiation and psychoanalysis: if i’d wanted to learn about feelings, i wouldn’t have gone to law school’, 45(3) journal of legal education, pp.420–429; sandra janoff (1991), ‘the influence of legal education on moral reasoning’, 76 minnesota law review, 193–238. 77 thomas l shaffer and james r elkins (3rd 1997), legal interviewing and counseling , st. paul, minn. west pub., p.56; see also daicoff (op cit 1997). p.1405; however carrie menkel-meadow (1989) argues that women entering the legal profession have introduced an ethic of care that is more responsive to clients’ needs, ‘portia redux: another look at gender, feminism and legal ethics, 2 virginia journal of social policy and the law, p.75. 78 martha nussbaum, ‘narrative emotions: beckett’s genealogy of love’, in love’s knowledge: essays on philosophy and literature, new york, oxford university press, 1990, pp.286–313, at 292. 79 simon tupman (2000) discusses several creative examples of how lawyers can connect better with their new and existing clients in why lawyers should eat bananas: inspirational ideas for lawyers wanting more out of life, byron bay, simon tupman presentations. students on the emotional issues of legal practice. students in clinical programs will feel their own anxiety and probably notice the stress of their clients. supervisors should seize these opportunities to talk with students about the happiness of ‘winning’, the grief of ‘losing’, the anxiety of confusion and the common frustrations and satisfactions of legal practice as they arise in the student, or as the student reports noticing them in the client. since the 1950s there have been several attempts to ‘humanise’ legal education in america by introducing to law schools courses on ‘human relations’,80 and ‘psychotherapeutic insights’,81 course texts on the psychology of legal interviewing,82 supplementary texts on legal interviewing incorporating transference,83 counter-transference,84 informing students on cognitive stressmanagement techniques85 and familiarizing clinical law students with the various schools of psychotherapy.86 the benefits of these modifications of legal education have been modest at best, given the current statistics of lawyer’s depression, dropping out, suicide and divorce rates. there have been more significant reforms in legal practice which have reduced the negative effects of the adversarial system of dispute resolution. these developments are reflexive, open to the emotional implications of real life disputes, and come from the intersections between alternative dispute resolutions,87 therapeutic jurisprudence,88 preventive lawyering,89 affective lawyering,90 lawyering with an ‘ethic of care’,91 and ‘creative problem solving’.92 legal education typically 136 journal of clinical legal education december 2005 80 howard r sacks (1959), ‘human relations training for students and lawyers’, 11 journal of legal education, 316, p.317. 81 andrew s watson (1958), ‘the law and behavioural science project at the university of pennsylvania: a psychiatrist on the law faculty’, 11 journal of legal education, 73; (1963), ‘teaching mental health concepts in the saw school’, 22 american journal of orthopsychiatry, 115 at p.120. 82 andrew s watson (1976), the lawyer in the interviewing and counselling process (contemporary legal education series), bobbs-merrill. 83 thomas l shaffer (1976), legal interviewing and counseling in a nutshell, st. paul, minn. west pub.. 84 thomas l shaffer and james a elkins (1987), legal interviewing and counseling in a nutshell, st. paul, minn. west pub.. 85 lawrence et al (1983), ‘stress management training for law students: cognitive-behavioral intervention’, 1(4) behavioral sciences & the law, 101–110. 86 melissa l nelken (1996), ‘negotiation and psychoanalysis: if i’d wanted to learn about feelings, i wouldn’t have gone to law school’, 46 journal of legal education, p.420; robert m bastress and joseph e harbaugh (1990), interviewing, counseling, and negotiating. little brown & co law & business. 87 lani guinier, michelle fine and jane balin (1997), becoming gentlemen: women, law school, and institutional change, beacon press, boston, referring to law schools’ need to start emphasizing the teaching of mediation and negotiation, not just litigation, at p.69–70. 88 david b wexler (1993), ‘new directions in therapeutic jurisprudence: breaking the bounds of conventional mental health law scholarship’, 10 n y law school j human rights, 759; dennis p stolle, david b wexler and bruce j winnick, (eds), practicing therapeutic jurisprudence: law as a helping profession, carolina academic press, durham nc. 89 dennis p stolle, david b wexler, bruce j winick and edward j dauer (1997), ‘integrating preventive law and therapeutic jurisprudence: a law and psychology based approach to lawyering, 34 cal w l review, p.15. 90 linda mills (1996), ‘on the other side of silence: affective lawyering for intimate abuse’, 81 cornell law review, 1225; carrie menkel-meadow (1994), ‘narrowing the gap by narrowing the field: what’s missing from the maccrate report – of skill, legal science and being a human being’, 69 washington law review, 593 at pp.606–07. 91 daicoff (op cit 1997), at n.30, see pp.1398–1400; theresa glannon (1992), ‘lawyers and caring: building an ethci of care into professional responsibility’, 43 hastings law journal, p.1175; ‘ethic of care’ derives from carol gilligan (1982), in a different voice¸ cambridge, mass. : harvard university press, pp.62–63. 92 janeen kerper (1998), ‘creative problem solving vs. the case method: a marvellous adventure in which winnie-the-pooh meets mrs palsgraf ’, 34 cal w l rev, p.351; james m cooper (1998), ‘towards a new architecture: creative problem solving and the evolution of law’ 34 cal w l rev, p.297. continues to privilege and emphasise litigation-as-law and has not kept pace with these initiatives in legal practice. improving our educational strategies to acknowledge the emotional side of legal practice may not only help lawyers survive better in the profession but ultimately provide clients with better legal services. it is likely that emotional intelligence can be ‘taught’ in the sense that we can encourage individuals to develop their emotional capacities. we can improve our self-awareness, our emotional regulation and our appraisal of emotional states in others by training and practice, providing we have first accepted the value of emotional awareness.93 on the basis it can be taught, many schools especially in the united states have integrated programs on ‘social and emotional learning’ and ‘service-learning’.94 while it is not clear to what extent such programs could be adapted to non-american societies and contexts, research suggests that improved emotional intelligence leads to enhanced academic performance.95 consequently about one third of american schools are combining service-learning with social and emotional learning to maximize students’ academic achievements and to ensure their learning is based on an understanding of real-life issues. in legal education we can no longer assume personal competencies will develop spontaneously in those who are meant to survive in legal practice. the next step is to recognise that clinical legal education programs offer ideal opportunities for teaching in ways that encourage students to develop self-awareness and the related capacities that make up emotional intelligence. methods of incorporating emotional intelligence into clinical legal education emotion and passion signify evil, danger, and threat of disorder.96 ideally we should introduce clinic students to the concept of emotional intelligence at the beginning as part of the curriculum. some students may be sceptical; however they may be more interested when they learn of the connections between emotional intelligence and academic performance, and how it may help them to be better lawyers. we should also inform students of the dangerousness of legal practice, and why many lawyers suffer depression and many drop out. we could also discuss the popular image of lawyers as self-serving, untrustworthy and lacking seeing things as we are. emotional intelligence and clinical legal education 137 93 zeidner, roberts and matthews (op cit 2002). 94 sel programs teach five core competencies: selfawareness, social awareness, self-management, relationship skills and responsible decision making. joseph e zins, michelle r bloodworth, roger p weissberg and herbert j walberg, (2003) ‘the scientific base linking social and emotional learning to school success’, in zins et al, social and emotional learning and school success. new york, teachers college press. service learning is based on community service, but it is more structured, diverse and integrated into the classroom curriculum. shelley billig, (2000) service-learning impacts on youth, schools and communities: research on k-12 schoolbased service-learning 1990–1999, denver, co: rmc research corporation. 95 joseph e zins, michelle r bloodworth, roger p weissberg and herbert j walberg, (2004) building academic success on social and emotional learning: what does the research say? teachers college, columbia university; r w blum, c a mcneely and p m rinehart, (2002) improving the odds: the untapped power of schools to improve the health of teens. minneapolis, mn: university of minnesota, center for adolescent health and development; k f osterman, (2000) ‘students’ need for belonging in the school community’, review of educational research,70; c c lewis, e schaps and m s watson, (1996) ‘the caring classroom’s academic edge’, educational leadership, (alexandria va) vol.54, 16–21. 96 martha l minow & elizabeth v spelman (1988) ‘passion for justice.’ 10 cardozo law review 37–68. integrity, and ask if that is a reputation we should laugh about, endure or change.97 just discussing emotional intelligence openly in terms of human experience and competencies may have a positive effect on some students.98 it may help also to overcome the anti-emotion bias in those students who like to see themselves as ‘thinkers’ by suggesting they consider the research on emotion showing we never make purely cognitive decisions, that emotion informs everything we do.99 when confronted with the science on emotional intelligence even ‘thinkers’ may reconsider their position and begin thinking about how they’re feeling. this section considers specific opportunities in many clinical programs for encouraging students to develop their emotional capacities. as they become more emotionally aware they will better understand what lies behind their intellectual decisions and eventually those of other people. these insights may help the students to continue developing in ways that lead to identifying and changing what they can in their lives, including their professional lives, and to accepting what they can’t. (a) reflection reflection makes the difference between thirty years of experience, and one year of experience repeated thirty times.100 what makes clinical legal education so valuable from a developmental perspective is the opportunity for students to reflect on real-client experiences and role-plays. reflection leads to selfawareness which is fundamental in all models of emotional intelligence.101 it is highly likely that reflection on clinical experiences improves self-awareness and fosters the kind of integration that further develops emotional intelligence. the value of experiential learning is well known, but it seems the learning actually happens through the reflection during and after the activity.102 students need guidance on reflective 138 journal of clinical legal education december 2005 97 in the 2002 lawyer’s lecture at the st james ethics centre chief justice of the supreme court of nsw http://tinyurl.com/ooxvh the hon j j spigelman ac asked ‘are lawyers lemons?’ and said inter alia ‘it was time that time-based charging which rewards inefficiency, became ubiquitous.’ on the public opinion of lawyers and the decline in professionalism among lawyers in america see the references and discussion in daicoff (op cit, 1998) from nn.34 to 48. 98 lawrence s krieger (1998) found that students responded quickly to the theories of self-actualisation when espoused by a role model, ‘what we’re not telling law students, and lawyers, that they really need to know’, 13 journal of law and health, 1 at p.22. 99 charles lawrence (1987) discussed why lawyers may be especially resistant to acknowledging the power of the unconscious, ‘the id, the ego, and equal protection: reckoning with unconscious racism’, 39 stan. l rev, 317, p.329. 100 adele b lynn (2005) the eq difference: a powerful plan for putting emotional intelligence to work, amacom, ny. 101 self-awareness was fundamental to maslow’s (op cit 1968) theory of self-actualisation and herzberg’s (1959) theory of motivation. (new york, wiley; london, chapman & hall.) see barrette (op cit 2002) who emphasised the need for research on ways to develop self-awareness through experiential learning. 102 david a kolb for example found that effective learning requires ‘reflective observation’, (1984), experiential learning: experience as the source of learning and development, englewood cliffs, nj: prentice-hall, p.30. practices to find out what works best for them and to develop good habits of reflection as part of their legal practice.103 reflection is not about regret; it is not about rationalising or justifying; nor is it about reflecting solely on our feelings. we should reflect on the facts: what happened, what we did, including what we perceived, which includes what we perceived about how others felt about what happened. reflecting on the facts enables us to analyse and connect disparate parts, to see how possible answers might fit the question. ‘brainstorming’ is one method of using elimination that can produce answers that would rarely be considered feasible by ‘rational’ processes. our feelings help us use intuition about possibilities and provide answers that are not obvious to our logical intellect. opportunities for retrospective reflection are common. one analysis states that good reflective practice involves: a. direct experience of a situation b. thoughtful examination of existing beliefs, knowledge or values, and c. the systematic contemplation of observations and potential actions.104 however reflection is not always retrospective. donald schön distinguished between spontaneous reflection-in-action and retrospective reflection-on-action.105 the former often happens when a lawyer comes upon a new situation and decides that routine or familiar responses are not appropriate. the lawyer might try new methods to test new insights and understandings. another theory recognises three levels of reflection: 1. technical – the application of skills and technical knowledge 2. conceptual – the understanding of theoretical bases for practice, and 3. critical – the examining of moral and ethical implications of decisions.106 both these theories are useful but inadequate because they ignore opportunities for reflection on feelings. reflection on feelings and emotions helps us to understand the choices we make ‘not thinking’ and why we think as we do when we are. good reflective practice that includes reflection on feelings does not diminish the value of cognitive processes but helps to prioritise our ideas because we know more about their source. it may involve attempts to answer the ‘why’ question: why do i – why does the client – feel this way? we may not be aware of the reasons for our emotive responses at the time. it is sufficient at first to be aware of the feelings as they arise. thinking, for example: ‘i’m feeling angry. i’m not sure why yet, but i better be careful what i say.’ seeing things as we are. emotional intelligence and clinical legal education 139 103 kimberly e. o’leary, ‘evaluating clinical law teaching – suggestions for law professors who have never used the clinical teaching method’, 29 n. ky. l. rev. 491 (2002); gerald f. hess, ‘learning to think like a teacher: reflective journals for legal educators’, 38 gonz. l. rev. 129 (2003–03); donald a. schön, ‘educating the reflective legal practitioner’, 2 clin. l. rev. 231 (1995). linda g mills (2000) ‘affective lawyering: the emotional dimensions of the lawyer-client relationship’, in stolle, wexler and winnick, (op cit 2000), pp.419–446. 104 dawn francis (1995), ‘the reflective journal: a window to preservice teachers’ practical knowledge’, 11 teaching and teacher education, 229 at 230. 105 donald a schön (1987), educating the reflective practitioner: toward a new design for teaching and learning in the professions, san francisco : josseybass, c1987, p.26. 106 max van manen (1992), ‘linking ways of knowing with ways of being practical’, 6 curriculum inquiry, 205 at 226–27. in clinical practice students would benefit from discussing how reflective practice works, such as helping make the unconscious conscious, and helping lawyers to be more mindful of their assumptions before acting on them. reflective practice could help a lawyer to acknowledge a bias or other emotional response that could lead to difficulties and jeopardise the fiduciary relationship, ideally before a problem develops. a lawyer may feel ‘uncomfortable’ about a client, and upon reflection decide it may be countertransference, such as a strong attraction or feelings of hostility towards the client. in either case, discussing the feelings with a trusted colleague might be useful, or with a therapist, and if the emotional response continues it may be necessary to cease acting and refer the client elsewhere. marjorie silver gives the example of a psychiatrist who, when during his analysis of a patient whom he described as a highly attractive young woman, became aware of his unusually correct posture, his formal approach and lack of spontaneity.107 on deeper reflection he found he was defending against his patient’s charms by creating physical and emotional distance that led to a sterile analytic stance that would produce an inadequate analysis of the patient’s situation. when he recognised how he was treating her differently to his other patients, he was able to resolve his anxiety enough to work with her more effectively. silence plays an important role in legal practice that can be best understood through reflection.108 lawyers are not known for their capacity to be silent, however used carefully, silence is a powerful tool in negotiation, mediation and litigation. it gives time for both sides to reflect, enabling deeper communication and understanding of the other’s position. reflective silence has interpersonal and ‘textual’ functions and can be used strategically in litigation and compassionately in interviews.109 joint reflection among students in small groups enables the students to discuss their inner experiences, sharing their opinions, ideas, observation, and feelings on particular events and situations. peer sharing helps them discover they may not be alone in having an emotional reaction or sympathetic response to a client’s situation. it is an opportunity for the students to discuss their attitudes and values, and the reasons for them, and can lead to very productive learning situations and long-lasting relationships. students in clinical legal education courses sometimes have confronting experiences that contradict their expectations about legal practice. the experience may be challenging and can cause them to re-evaluate their attitudes or even their world-view. education theorists refer to a process called cognitive dissonance, where a person learns from having to work with the tension of two apparently contradictory ‘facts’.110 these learning opportunities have been discussed by hugh brayne: ‘change is up to the student; but the more experiences he or she has in which their sense of reality is tested, the more likely it is that, at some point, personal growth will occur.’111 140 journal of clinical legal education december 2005 107 marjorie a silver (2000), ‘love, hate, and other emotional interference in the lawyer/client relationship’, in stolle, wexler and winnick, (op cit 2000), pp.405–406. 108 stefan h. krieger, ‘a time to keep silent and a time to speak: the functions of silence in the lawyering process’, 80 or. l. rev. 199 (2001). 109 the textual function refers to establishing the relevance of communications by giving them a context. see michael a k halliday (1978), language as social semiotic: the social interpretation of language and meaning, baltimore, md: university park press, pp.112–13; adam jaworski (1992), the power of silence: social and pragmatic perspectives (language and language behavior) sage publications, thousand oaks, ca.. 110 see leon festinger, henry w. riecken, and stanley schachter (1956), when prophecy fails, new york: harper and row, pp. 27–28. 111 hugh brayne (op cit 1996), p;45. the unpredictability of a clinic provides ideal opportunities for emotional development through reflection with the support of a supervisor.112 for some the best kind of reflection is when the individual student and teacher reflect together, especially in the early stages of practice. it can improve student motivation and the student can model the process later to develop more independent reflection.113 the successful ‘teaching’ of reflective practice could be demonstrated by for example the students showing how awareness of their feelings or emotional responses helped by producing a better or deeper understanding of a particular case. (b) negotiations stupidity is not a lack of intelligence, it is a lack of feeling.114 negotiation is a core skill and fundamental to legal practice. the large majority of disputes are resolved through negotiation techniques at some level. the standard legal skills may not be helpful in negotiations, such as logical analysis, memorised case law and forceful advocacy. however a good negotiator will have well-developed personal capacities such as integrity, reliability, honesty, communication skills and persuasiveness. a very good negotiator will have a highly developed emotional intelligence, especially self-awareness and a capacity to understand another’s emotional position. most clinical legal education programs give students practical experiences in negotiating, either in role plays or in real-client situations, and students often enjoy the activity and many report how much they learned from it. i submit that students will learn better and develop more quickly if they understand the importance of self-awareness and the capacity for understanding the emotional position and inner motivations of the other party. negotiation is not a new skill as we negotiate all the time to get what we want. law students will have many years of experience to draw on. however negotiation role-plays can help students learn a lot about themselves, as well as how to identify other people’s feelings and intentions. specifically, negotiation practices teach about the cost of being too assertive: alienating the other party or achieving a short-term victory at the expense of other more substantial gains or a potential long-term relationship.115 an aggressive approach might cause the other party to react and ‘stone wall’ by adopting a rigid position or refusing to continue discussions. even when winning, a good negotiator will sense the feelings of the other party and gauge the need to make concessions to allow them to ‘save face’ in accepting a potential loss. rather than encouraging students to be assertive and ‘tough negotiators’, which can lead to bullying behaviours, reactive responses, bad relationships, inoperable solutions and even failures to seeing things as we are. emotional intelligence and clinical legal education 141 112 the brazilian educator paulo friere advocated the ‘dialogical empowerment’ of the student through the student and teacher working together and reflecting on their observations; paulo freire (1974) education for critical awareness, ny, crossroad publishing company. roy reekie (1991), ‘creating partners: the art of being a clinical law teacher (part 1): towards a counter-socratic method, via dialogical empowering for critical awareness’, 9(2) journal of professional legal education, pp.137–148. 113 the most important factor for student motivation is frequent student-teacher contact, according to the empirical research in america in the 1980s and 1990s examined by gerald f hess (1999), ‘seven principles for good practice in legal education: history and overview’, 49(3) journal of legal education, pp.367–370. 114 robert musil. 115 leonard greenhalgh (1987), ‘the case against winning in negotiations’, 3 negotiations j.,167; melissa l. nelken (1996), ‘negotiation and psychoanalysis: if i’d wanted to learn about feelings i wouldn’t have gone to law school’, journal of legal education, vol 46, no 3, 420. reach outcomes, a more enlightened approach would frame the process as a conversation.116 many disputes can be resolved in part, if not wholly, by the cooperative approach of exchanging information to assist each side to understand the issues from the other point of view. on the other hand, assertiveness is necessary on occasions. negotiators can use their emotional intelligence to decide what approach is best in each case and how to change tack during the negotiation without losing credibility. psychoanalysis theory suggests that everyone develops mechanisms for suppressing awareness of their inner conflicts which are typically ambiguous in their meanings and ambivalent in their affects.117 when law students interact in negotiation role-plays, their inner conflicts including hopes and fears are aroused at some level, often creating new experiences and opportunities for insight. most are unaware of how much their own personal needs and conflicts inform their decisions and behaviour in the negotiation process.118 if negotiators have more self-awareness, they may find the process easier, avoid reacting to provocation, and be better able to understand the position of the other party. that could improve communication, increase the level of trust, improve the integrity of the process and the chances of a mutually beneficial outcome. law schools may expect students to develop a competitive approach to problem solving, given the adversarial system and the doctrinal focus on litigation. on the other hand students are confronted with the reality that most disputes are resolved though negotiations and other more cooperative practices. ideally students will come to understand through clinical practice that the central purpose of all advocacy is persuasion, and self-awareness and skilful use of other emotional capacities contribute significantly to successful dispute resolution. (c) journal keeping the best advice i can possibly give if you are interested in developing greater emotional intelligence is to begin to journal every morning.119 first used pedagogically by the ancient greeks, student reflective journals have become accepted practice in many legal clinics since the early 1990s.120 a journal is typically a regular, written communication from a student to a teacher about the student’s experiences in the course. students may write an entry daily, weekly or as agreed, and the contents may be factual, analytical, philosophical or emotional. keeping a journal helps students to reflect on the learning potential of their experiences in a clinic placement and to develop habits of self-directed learning. it can also assist the assessment process, especially in externships where the clinician is not in regular contact with the student. 142 journal of clinical legal education december 2005 116 peter reilly, ‘teaching law students how to feel: using negotiations training to increase emotional intelligence’, (2005) negotiation journal, april 2005, 301–314 at 308. 117 general introductory texts on psychoanalysis include sigmund freud (1933), new introductory lectures on psychoanalysis, trans. james strachey, london 1964, and charles brenner (1913), an elementary textbook of psychoanalysis, (revised editions 1957, 1974) new york, international universities press. 118 william l f felstiner &austin sarat, (1992), ‘enactments of power: negotiating reality and responsibility in lawyer-client interactions’, 77 cornell l. rev. 1447. 119 bernard l diamond (2005), op cit. 120 den autrey (1991), ‘toward a rhetoric of journal writing’, 10 rhetoric review 74 at 75; j p ogilvy (1996), ‘the use of journals in legal education: a tool for reflection’, 3 clinical law review, 55–107, and michael meltsner (1999), ‘writing, reflecting and professionalism’, 6 clinical law review, 435–467. journals have many developmental functions. they can help people cope with stressful experiences as well as maximise the benefits of positive experiences. reflection in writing helps students to acknowledge their emotional responses to events, such as anger, frustration, joy, embarrassment, attraction, repulsion, or annoyance. their self-awareness is likely to develop as a result of simply acknowledging their experiences, and will happen more to the extent they can reflect on and have insights into these emotional responses. clinic students may need to resolve issues that arose during an interview or a court appearance. sometimes the anxiety can cause the reflective thoughts to be circular and unproductive. exploring the feelings by writing them down can relieve frustration and help the student reach a degree of clarity on what happened. journals can help creativity and original thought.121 they can also promote skills in critical thinking.122 some clinical programs set students optional topics for writing about such as a title and some anecdotal guidance to get them thinking.123 other programs are relatively unstructured and allow students to write about what is important to them. students may explore their deeper thoughts about the implications of cases and new avenues to explore. journals can be used in conjunction with ‘mind-maps’ for solving problems, exploring possibilities and learning new methods of thinking. journals provide some students with a safe space to explore issues they feel less confident about and unable to raise in a class. they can also help a teacher identify difficulties with particular students such as anxiety, confusion or misunderstandings before they lead to bigger problems. after more than a decade of teaching clinical legal education using student reflective journals j p ogilvy proposed what he called an ‘idiosyncratic and tentative’ list of goals for his students’ journal assignments: ● to encourage the exploitation of the demonstrated connection between writing and learning ● to nurture a lifetime of self-directed learning ● to improve problem-solving skills ● to promote reflective behaviour ● to foster self-awareness ● to allow for the release of stress ● to provide periodic student feedback to the teacher.124 most of these goals are relevant to developing emotional capacities in students. many students learn to use a journal for their own purposes, and they realise enough benefits to continue journaling during their careers. seeing things as we are. emotional intelligence and clinical legal education 143 121 julia cameron (1992) the artist’s way; a spiritual path to higher creativity, tarcher (penguin). 122 c degazon and m lunney (1995), ‘clinical journal: a tool to foster critical thinking for advanced levels of competence’, 9(5) clin nurs special, pp.270–274 123 meltsner (op cit 1999) suggests topics like: how did i get here? on friendship? how have i changed? what do i think about working with someone i don’t like? – at p.460. 124 ogilvy (op cit 1996), p.63. (d) interviewing in the last analysis, skilful interviewing is intimately related to self-awareness.125 good interviewers know themselves well. in the lawyering process, bellow and moulton argue that a good lawyer will bring her own values and emotions into her practice, rather than deny them in favour of cognitive analysis and decision making.126 she will be able to understand the subjectivity of her client so as to practise with empathy. students should be encouraged to remain open to the client’s values and attitudes in order to accept the client and empathise with their situation. rigid views or narrow beliefs will stifle a student’s capacity to accept the client and may lead to the student becoming judgmental. empathy can’t be forced and students have to work through these obstacles personally. emotional intelligence is crucial for the good interviewer, because she must be sensitive to nuance, and be ready to accept or resolve the ambiguities in the narrative and the ambivalence in the feelings that arise in herself and the client. the interviewer ‘owns’ the interview, because there is a professional responsibility to obtain the information necessary to help the client. however legal interviews should be ‘client centred’ and not structured for the comfort of the lawyer.127 several techniques can be employed. when a client is distressed for example, the interviewer may decide to share something of her own life, to help the client realise the interviewer’s humanity and allow for a more positive connection. the interviewer might say that she still feels ambivalent about a similar or related experience in the past, or that the process was difficult or stressful, or how hard it was to decide. this may help the client accept the reality of her own situation and the normality of her feelings. however, it is essential the interviewer doesn’t feel a need to disclose to the client. most clients are very emotional about their case. just as emotions can’t be separated from cognitive processes, they can’t be kept out of the interview room. an ‘objective’ interview is not possible, and interviewers will always have an emotional response or range of responses to every interview situation. interviewers need to exercise their emotional intelligence carefully in revealing their responses to the clients. however, attempts to hide all emotional responses will likely alienate the client who will be unimpressed by the lack of engagement for their case and uninspired by the lack of confidence for a resolution. practising mindfulness, or conscious reflection on the current moment, during the interview can help the student concentrate, remain focused, and really hear what the client means to say. it involves simultaneous deep listening while observing non-verbal communications and being selfaware. the interviewer not only hears the client’s words but notices the attitude and apparent values of the client, all while remaining sensitive to her own inner state, being relaxed but aware should something arise such as anger, fear, hostility or attraction. none of these are a problem in themselves unless they dominate the interviewer and distract her from listening. emotional intelligence involves trust and trust is crucial. the student must learn to trust the client and not give in to feelings of doubt that may be based on her attitudes or prejudices. if the student 144 journal of clinical legal education december 2005 125 andrew s watson (1965), op cit. 126 gary bellow and bea moulton (1978), the lawyering process: materials for clinical instruction in advocacy, mineola, ny: foundation press, pp.158–162. 127 linda f smith, ‘interviewing clients: a linguistic comparison of the “traditional” interview and the “client-centered” interview ‘, 1 clin l rev 541 (1995). has good reasons to doubt the client she should discuss it with her supervisor with a view to confronting the client with those reasons.128 as well, the clinician must determine how much to trust a student’s capacities without compromising the client’s interest. in addition, the student has to trust herself, acknowledging her feelings and not criticising herself for various feelings that may arise, such as over-sympathising or being angry. arguably the client has the biggest task as she must trust the student, the student’s supervisor and the clinic’s processes. (e) empathy knowing others is wisdom, knowing yourself is enlightenment.129 empathy is essential in a client-centred practice. it forms part of the professional relationship with the client and should pervade all legal practice with personal clients. practising empathy is an exercise in emotional intelligence because it involves feeling and understanding the world from the client’s point of view. lawyers need to be aware of their own biases, attitudes, beliefs and values in order to be able to put them aside to enter partly into the experience of the client and understand their decisions and behaviour.130 ideally empathy has both emotional and cognitive elements. it requires an understanding of the client’s position from both a factual and a feeling level and then a communication of that understanding to the client. medical schools teach doctors to develop skills in empathic communication with patients because an emotionless and detached stance creates a distorted perspective of the information needed for effective and appropriate action.131 similarly with legal practice, clients may not be forthcoming if they sense the lawyer is not affected by their instructions so far. they may distort their narrative by exaggeration, or hold something back in embarrassment. developing empathy will facilitate the information flow and help the client relax, feeling more supported and affirmed. clinical students can learn about empathy through group reflections and journal assignments on their experiences in role-plays. interview role-plays for example will give students genuine opportunities to ‘practise’ empathy, because in many cases empathy will arise if the students participate with sincerity.132 empathy is likely to happen when lawyers practise with an ethic of care. it is an important feature of therapeutic jurisprudence where legal practice is oriented more towards solving problems than winning cases. empathy is a nuanced quality, and yet it can be a strong force in empowering the lawyer to assist the client and strengthen the professional relationship. the client will appreciate the lawyer’s empathy if it is genuine and will have confidence that the lawyer understands her situation. seeing things as we are. emotional intelligence and clinical legal education 145 128 evans, powles, fagg and james 2005, ‘dishonest or misleading client’ section in chapter titled ‘interviewing’, lawyer’s practice manual new south wales, redfern legal centre, thomson law book co. 129 lao tzu 130 david a binder, paul bergman and susan c price (1991), lawyers as counselors: a client-centred approach, st. paul, minn. west pub. co., p.40. 131 jodi halpern (2001), from detached concern to empathy: humanizing medical practise, oxford university press, pp.39–77. 132 dan page (2003), ‘ucla imaging study reveals how active empathy charges emotions; physical mimicry of others jump-starts key brain activity’, ucla news, april 7 2003. j f kremer and l l dietzen (1991), ‘two approaches to teaching accurate empathy to undergraduates: teacherintensive and self-directed’, journal of college student development 32, pp.69–75. hugh brayne (1998), ‘counselling skills for the lawyer: can lawyers learn anything from counsellors’, 32 the law teacher, 137–156. empathy can be developed also through reflection on a client’s case and appreciating the client’s world view, whether or not it is shared by the lawyer. some theorists have argued that feeling empathy for a client is not just another skill but should incorporate making a political commitment to side with the client by rejecting the economic or policy environment that contributed to the client’s situation.133 others have argued that lawyers should extend their empathy to include expressions of approval in their communications with clients.134 yet others have critiqued both those positions as misuses of empathy because they could be misinterpreted and lead to actions not sought by the client.135 engaging clinical law students with this debate would help them decide how they can best develop empathy in their practice and require them to reflect on their own emotional capacities to do so. that reflection itself would help them develop their skills and propensities to incorporate their emotional intelligence into their legal practice. the lawyer’s responsibility to the client may include encouraging the client to reconsider her motivations for taking legal action, and to consider broader interests, such as those of society or of other people who may be affected. marjorie silver cites the case of a man who challenged his mother’s will which gave the house to his sister.136 the man was relatively rich and his sister, with whom the mother was living when she died, was relatively poor. in dismissing the case the judge told the man that just because his mother did not include him in her will doesn’t mean she did not love him very much. upon which the man broke down in court and cried. silver says that a lawyer advising the mother from the perspective of ‘therapeutic jurisprudence’ would have encouraged her to explore the likely effect on her son of being excluded from her will without explanation. a similar approach in advising the son would have encouraged him to explore his motivation for challenging the will. (f) mentoring wisdom is not a product of thought.137 mentoring is an efficient way to monitor and guide a student’s emotional development in their legal practice. it enables students to discuss their anxieties and confusions about their practice with someone who has more experience, and who cares. consequently it can help students identify every experience in their clinic placement as an opportunity to develop their professional skills, including especially their emotional capacities. ideally the mentor will be willing and able to discuss with students what is important to them, be committed to listening with empathy, encourage reflection and be able to give constructive feedback. the mentor relationship can help clinical students make sense of their thoughts and feelings which may be confusing or overwhelming. in some cases the mentor can motivate the student by serving as a model of best practice and demonstrating empathy. 146 journal of clinical legal education december 2005 133 peter margulies (1999), ‘re-framing empathy in clinical legal education’, 5 clinical law review, p.605, 616. 134 stephen ellmann (1992), ‘empathy and approval’, 43 hastings law journal, 991, 993. 135 laurel e fletcher and harvey m weinstein (2002), ‘when students lose perspective: clinical supervision and the management of empathy’, clinical law review, 9:135, 140. 136 silver (op cit 2000), p.396. 137 eckhart tolle (2003) stillness speaks, hodder. the mentor can be an academic138, a practitioner139 or a more experienced student.140 the role of the mentor can be wide and flexible, providing feedback and guidance, coaching particular activities and serving as a confidant and guide in times of personal crisis. mentors should be genuine, relaxed and willing to learn from their experience with students. ideally the mentor relationship should not be too formal, and the mentor should not pose as a fount of all knowledge. they should be open minded, sensitive to context and able to engage with students’ experiences to show there are often several ways to address a problem. mentors should be able to identify students who are struggling or depressed and help them decide if professional counselling is indicated. there are obvious advantages to peer mentoring, since student-to-student communication allows for more trust, shared values and freedom of expression. the university of newcastle legal centre runs a mentoring program that provides every first year student with a fifth year student to guide them in preparation for a first year moot. many first year law students report feeling isolated and some are alienated by the heavy work demands. the mentor is available to discuss issues generally and help resolve problems and anxieties that first year law students often experience. the mentor’s role is assessable by a reflection exercise, and they are provided with a training workshop and a written mentor’s guide. so far the unlc mentoring program is proving to be beneficial for both mentors and first year students. the first year student receives guidance and moral support from an experienced student who has ‘been through the ropes’ and is prepared to listen to their concerns. the fifth year students get personal satisfaction from seeing the other student develop and improve as a result of their influence.141 (g) mindfulness wherever you go, there you are.142 practising mindfulness means to maximise awareness, to be fully conscious of the current moment: being here and now. mindfulness is more than just concentrating, which involves mostly cognitive seeing things as we are. emotional intelligence and clinical legal education 147 138 in-house clinical supervisors (typically lawyer/ academics) are often in the role of mentoring clinical students individually, although many students would benefit from having a mentor who is not their supervisor to enable them to more freely reflect on their experiences including their relationship with their supervisor. 139 liz ryan cole (1994) describes a program at vermont law school where 20 students were selected by ballot to spend a semester with a judge or an attorney as a mentor, who ensured the students were exposed to a wide range of activities in their area of practice: ‘lessons from a semester in practise’, 1 clinical law review, 173–185. similarly in externships, legal supervisors are expected to mentor the students working with them, although often supervisors have difficulty with that task, as discussed by cynthia batt and harriet n katz (2004) in ‘confronting students: evaluation in the process of mentoring student professional development’, 10 clinical law review, 581–610. 140 the program at the university of newcastle legal centre involves peer mentoring of first year students by fifth year students. see jenny finlay-jones and nicola ross (forthcoming), ‘peer mentoring for law students – improving the first year advocacy experience’. 141 a brockbank (1998) discusses the often unrecognised benefits to the mentor in ‘mentoring’, in i mcgill and a brockbank (eds), facilitating reflective learning in higher education, buckingham, philadelphia: society for research into higher education and open university press. finlay-jones and ross (op cit) report the experience of the large majority of fifth-year student mentors in the newcastle program was very positive: ‘excellent experience for all involved’, ‘i thoroughly enjoyed the mentoring experience’, ‘most worthwhile’, ‘very fulfilling’. 142 jon kabat-zinn, supra. effort. it engages both cognitive and emotional functions so that the mind is fully present, open and awake. mindfulness includes sensitivity to the context of the situation, which may include the environment, the background, the history, and the personalities involved especially the emotional state of both the self, that is the person practising mindfulness, and any others involved. understood this way, actual mindfulness would require enlightenment, however ‘practising’ mindfulness is the best way to approach every aspect of legal practice. mindfulness offers benefits similar to those of yoga and meditation, which help people to relax and to identify what is important in their lives.143 mindfulness leads to a high level of personal integration through awareness of the body, mind and emotions. clinic students can learn through mindful practice that by taking care of themselves, they are taking care of business. as they learn to manage their emotional responses, they can improve their powers of concentration, among other things. steven keeva refers to the work of tarthang tulku, who wrote skillful means, and who developed specifically for lawyers a successful stress-reduction course that was approved for credit by the continuing legal education authority in california.144 practising mindfulness can help us not only improve our work but cope better when things go wrong. eckhart tolle advises people who are overworked or in emotional distress not to identify with the anxiety but to stay present: ‘become aware not only of the emotional pain but also of “the one who observes”.’145 the same process can be used in mentoring students, encouraging them not to identify with their feelings of fear, anxiety or confusion as these emotions will pass. recognising the emotion enables it to be named and observed as separate from oneself, contingent and temporary. once identified: ‘ok, that is the anxiety’, the student/lawyer will be better able to get on with the job, reflect on the issues, note the dilemma, be aware of the context (including the feelings of anxiety), make a decision to get help or not, and make a decision to act or not, rather than be paralysed with indecision or confusion. some legal education discourages mindfulness by concentrating on single-goal directed behaviour. while goal-directed behaviour is a powerful motivator, its over-use or abuse can be destructive. a significant part of the enculturation of lawyers involves maximising ambition, promoting egos and winning the case at all cost. as there can never be a perfect lawyer, the closer the goal gets to being perfect, the greater will be the disappointment. rather than winning every case or becoming a high court judge, we could encourage law students to develop their intentions for how they practise law, as part of how they live their life. whether or not it contains specific goals, it should always be a work-in-process. 148 journal of clinical legal education december 2005 143 jon kabat-zinn (1995) founder of the stress reduction clinic at the university of massachusetts medical center explores the connections between mind and body and describes how to use ‘practiced mindfulness’ to calm anxieties without blunting feelings and emotions. full catastrophe living, piatkus, london. 144 steven keeva (1999), transforming practices: finding joy and satisfaction in the legal life, contemporary books, chicago, 1999, p.78–79; tarthang tulku (1978), skillful means: patterns for success (nyingma psychology series, 5), berkeley, calif. : dharma pub. 145 tolle (op cit 1999), p.33. conclusions optimism and a positive attitude not only distinguishes happy lawyers from unhappy ones, it may also typify truly professional lawyers from those simply meeting their obligations. emotional competency is a good indicator of positive attitude, and while it does not preclude a healthy scepticism, ironic appreciation or sense of humour, it is necessary for successful, happy and enduring legal practice. consequently, helping lawyers improve their emotional intelligence will impact on the quality of their work and their overall wellbeing. initially, clinicians should inform students of the risks of practising law. we should then discuss how it is possible to survive happily, as both a good lawyer and satisfied in the profession. we could discuss the concept of emotional capacities and introduce students to emotional intelligence, not as a new discovery but perhaps a new perspective, and something we should consider carefully. we could then discuss options for looking after one’s own intellectual, emotional and physical wellbeing. the students could then be introduced to the clinic’s practices such as reflecting, journaling, interviewing, negotiation role-plays and mentoring, as opportunities to develop their emotional capacities, among other specific benefits. even doctrinal law units have opportunities for students to exercise their insight, to imagine and discuss how case law and principles may impact on the lives of real people. we can be guided to some extent by the experience of others, and there are many publications that help us understand the problems of legal practice and provide guidance on how to teach students about surviving them.146 on a cautionary note: given the economically ‘rationalist’ trend towards quality assurance, clinicians should take seriously the suggestion by brayne and evans to devise clinical qa processes before they are imposed.147 there is a growing need to demonstrate in institutional terms that clinical aims and objectives are consistent with planned outcomes. the ideal outcomes of clinical legal education can be clearly described and would include not only the conventional skills but capacities like emotional intelligence that reflect the student’s inner development. difficulties with identifying and assessing these outcomes using ‘objective minimum standards’ should be addressed broadly and directly, and not used to deny their relevance. seeing things as we are. emotional intelligence and clinical legal education 149 146 i recommend keeva (op cit 1999, 2004); tulku (op cit 1978, 1991); kabat-zinn (op cit 1996); tupman (op cit 2000); lani guinier, michelle fine and jane balin (1997), becoming gentlemen: women, law school, and institutional change, beacon press, boston; hugh brayne, nigel duncan and richard grimes (2002), clinical legal education: active learning in your law school, blackstone press. 147 hugh brayne and adrian evans (december 2004), ‘quality-lite for clinics: appropriate accountability within ‘liveclient’ clinical legal education’, 6 international journal of clinical legal education, 149–161. 1 editorial dr lyndsey bengtsson lyndsey2.bengtsson@northumbria.ac.uk the edition invites us to view the multifaceted impacts of clinical legal education. in particular, the impact of clinic activities in developing commercial awareness and other vital skills and attributes for the legal profession is explored. we also delve into the value of clinic to the wider society and to charities working within communities. we begin with s mcconnell’s important contribution into whether clinical legal education develops commercial awareness in law students. by examining the perspectives of both those teaching and learning in clinics, she explores the importance of this key employability skill and highlights the crucial role that clinic plays. in an interesting conclusion, she explains how there are differences between students and clinic supervisors in their understanding as to what commercial awareness means and what clinic activities develop this skill. further, she provides valuable recommendations as to how clinicians can best support students. in s nason‘s article, she evaluates the first two years of the project north and mid wales law clinic (nmwlc), which involves a partnership between bangor university and seven local citizens advice branches. she provides a valuable insight into this initiative, which aims to provide support and advice to litigants in mailto:lyndsey2.bengtsson@northumbria.ac.uk 2 person. she focuses on the student experience and explores the challenges and opportunities of online working. she also considers how the project fits within other clinical legal education models. she argues that this initiative changes students’ perceptions of access to justice and they gain a greater appreciation of “empowerment”. she also argues that this model of clinical legal education allows students to become aware of the role of new technology. those pondering the question ‘what difference does clinical legal education make?’ would benefit from the insights from l donnelly. he explores this critical question in the context of law graduates, using a questionnaire to elicit their views. he argues that although clinic participation equips graduates with the key skills required for a career in the law, it does not seem to go as far as creating lawyers who possess the mission for serving justice. in j marshall and n antoniou’s practice report, they provide a fascinating account of two outreach projects at royal holloway’s legal advice centre. they explain how both projects (the online being human café and the autism legal rights café) enabled different community groups to come together to discuss human rights. the authors explore how these events provide an important platform to improve lives and enrich communities. continuing the impact theme, in the latest episode of the clinical legal education podcast, our host, elaine gregersen, interviews molly doyle, a northumbria 3 university law student, who has just completed her year in the student law office module (the clinical legal education podcast (wordpress.com)). molly reflects on her year in clinic and what she has gained from her experience. she provides essential guidance for students embarking on their clinical legal education journey. if you wish to discuss the podcasts further, please do not hesitate to get in touch with elaine or molly via the twitter account @ijcle. finally, we are very excited about the 2022 gaje/ijcle/saulca worldwide conference at the faculty of law of the stellenbosch university this december. we look forward to seeing many of you there! https://clinicallegaleducationpodcast.wordpress.com/ editorial 1 special issue – clinical and public legal education: responses to coronavirus hugh mcfaul and francine ryan, the open justice centre at the open university law school, uk. the following special issue of the journal is published jointly with the international journal of public legal education. the contents are therefore duplicated online for both publications. proverbial wisdom has it that ‘its an ill wind that blows nobody any good’ and, thankfully, the experiences of the cle community suggest that this may ring true for pandemics as well as storms. in this special issue the reader will benefit from an initial analysis of the experiences of law teachers living through an unprecedented crisis and grappling with the unexpected requirement to rapidly adjust their practice to continue to meet the needs of both their students and the users of their pro bono legal services. the challenges faced by cle practitioners are discussed from a variety of perspectives across eight practice reports drawn from the uk, usa and india. although the difficulties discussed are significant, the responses and novel solutions presented across all the papers attest to the creativity, energy and commitment that is the hallmark of the cle community, and they point to new pathways for clinics to engage with their communities. http://www.open.ac.uk/openjustice editorial 2 our invitation to edit this special edition arose after we submitted an article for publication to the ijcle in summer 2020, which is now included as our contribution to this edition with the title ‘taking clinical legal education online: songs of innocence and experience.’ this article reflects on our four-year journey towards making clinical legal education accessible to distance learning students at the open university. our paper highlights experiments with technology, efforts to foster positive working relationships for remote student teams and how we have tried to reimagine the role law schools can play in promoting the development of legal capabilities in their communities. professor elaine hall recognised that many other law schools were now attempting to adapt their teaching in a similar fashion, but in a considerably compressed timescale, and that this this experience should be highlighted in a special edition of the ijcle. we were delighted to accept the invitation to guest edit the journal and have benefitted from the insights, reflection and analysis offered in the practice reports submitted for this special pandemic edition. codd et al focus their reflections on an innovative prison-based business and tax law clinic run by the university of central lancashire. their discussion highlights the need to take a flexible and solution based approach to the planning and delivery of prison based clinics, not just because of the pressures of the pandemic, but also due to the need to negotiate a shifting landscape of government guidance and changes in priorities of prison and university management. a perspective from india is provided editorial 3 by gigimon and nandwana. this paper considers how the decision of the indian judiciary to utilise virtual courts, and how a similar move by the national legal aid service to conduct virtual lok adalats, impacts upon clinical legal education in india. the authors propose a working model for how legal aid clinics should respond. wallace provides valuable insights from the usa in her article ‘classroom to cyberspace: preserving street law’s interactive and student-centered focus during distance learning’ around the transfer of street law methodologies into an online setting. the article discusses some of the challenges of recreating the interactive elements of street law that are at the core of its delivery in a virtual environment. readers will learn a lot about how to adapt their own street law programmes and about the potential to consider new ways of reaching out and engaging schools beyond the borders of the physical classroom. the pandemic has proved challenging for our students and there is a considerable amount of concern around the impact on mental health, which is why the article from wapples makes such a valuable contribution to this edition. ‘promoting positive mental health in international postgraduate law students at a time of global uncertainty: a case study from qlegal at queen mary university of london’ provides a practical example of what can be done to support students to help overcome feelings of isolation and maximise engagement in a time of uncertainty. readers with international students will find this article particularly interesting as it offers insights editorial 4 into the specific challenges they face and the importance of building networks of support. matt et al argue that despite the negative impact of the pandemic, clinical legal education programmes can find new and sustainable ways to deliver legal services to their clients. their article explores the university of exeter’s transformation from an in person to a remote delivery service and offers insights into the lessons learned. what comes across strongly is no matter what the mode of delivery, the heart of all clinical work is the human connection. setting up a new clinic is challenging, but to do that during a pandemic only intensifies the challenge. in ‘royal holloway university of london and the afghanistan and central asian association: new partnerships and challenges during covid-19 in the clinical legal world’ antoniou et al share their experiences of adapting an emerging service in a time of uncertainty. this article shows the power of partnership to tackle inequality and respond to high levels of unmet legal need that impact on marginalised communities. the experience of setting up a new clinic and then dealing with the challenge of the pandemic is also the focus of papers by thurston and kirsch (university of hertfordshire) and howells (university of derby). both papers argue for the value of the continued use of virtual clinics in addition to face to face engagement. many of us working in law clinics have a legal practice background and some find the prospect of writing for journals to be a little daunting! we are really pleased that this editorial 5 edition has encouraged a number of colleagues to submit their work for publication to the journal for the first time. we hope that the discussions presented in these papers will encourage others to share their experiences by submitting work for future editions. project1 foreword introduction welcome to the winter 2007 edition of the international journal of clinical legal education and my apologies for the slightly late publication of the journal, which comes out just as we gear up for the 2008 cork ijcle conference. the response to the call for papers for this conference has been overwhelming, with papers from almost all the major clinical jurisdictions, including a series of papers from central and eastern europe. i am obviously delighted to see the ijcle conference developing in its role as the major annual conference for clinicians to share experiences across jurisdictions and for us as clinical teachers of law to share best practice and to develop in our roles as we draw on the widest range of models of clinical practice and reflection. this edition: this edition brings together three papers from very different jurisdictions. myrta morales cruz uses her experience – and the experience of her clinical students – in fighting expropriation of land in puerto rico through legislative change as a springboard for a wider reflection on the lawyering process, and the lessons for clinics. it is always good to see paulo friere revisited. the principles of empowerment must, it seems to me, always underpin our work as clinicians – after all, clinic is itself a model of empowerment of students, and thus an ideal opportunity for young lawyers to reflect on the nature of professionalism and the social (and political) expectations intrinsic in the role that they are growing into. one of the justifications for an international journal of clinical education is that it serves to analyse not only the contexts which are unique to each jurisdiction – and sometimes to each law school – but also to identify what is common in the experiences of clinicians. like morales cruz’s article, willem de klerk’s article similarly considers the different educational imperatives inherent in clinical education – and uses his own experiences to consider the wider role of clinic within the south african context. there is much in the article that will strike a chord with clinicians in every country – the ambiguous status of clinic, the difficulty of explaining who and what we are and what we do – but it is also an article that is rooted in the unique south african experience. one telling footnote makes the point about the difficult of addressing problems in a context where there may – in practice – be little effective implementation of purely legal solutions. in the last of the pieces liz curran also considers clinical education and client empowerment, here in the context of her clinical programme at la trobe in australia – and looking at the potential for law reform work in the australian context. curran argues that by giving the (otherwise) marginalised in society a voice, law reform which is grounded in casework has a sense of reality which often sways hard-line decision-makers. curran also, however reflects on the risks that may arise from such case-work based law reform projects and argues that clinics provide one route by which universities can play their role in the wider public life of the community, as well as educating students in the nature of professional roles. foreword 81 other matters: this is my final edition of the journal as editor. i am moving on within northumbria university to become dean of the law school – a role that i am delighted to assume since it allows me to continue to ensure that our clinical programmes remain central to everything that we do within the school. i am equally delighted to be able to leave the journal in the very capable hands of my colleague, kevin kerrigan. kevin is a reader in law at the law school, and has been a key player within our clinical programmes for many years, developing a successful and well-regarded criminal appeals clinic. he has also been involved in helping to organise our ijcle conferences – as well as publishing in the journal – and he will be known to many of you already. i wish kevin every luck with the journal. it has been a pleasure to serve as editor – and to build on all the work done by my predecessor, cath sylvester. i have been assisted to a huge extent by my eminent – and ever helpful – editorial board, and by all of those who have submitted articles – and (equally critically) have kindly agreed to serve as referees. thank you to everyone who has helped to make the journal such a success and i look forward to reading future editions of the journal – and to continuing to attend the conferences, from which i always learn so much. philip plowden may 2008 82 journal of clinical legal education december 2007 clinical legal education management and assessment software by ross hyams* lawyers and technology lawyers are notoriously slow at embracing technology. this is not because of any inherent laziness or fear, but a basic lack of acceptance that digital technology is any way related to the practice of law. after all, law is all about human interaction and practicing law is concerned with communication skills, drafting, negotiating, and advocacy – all intrinsically people-centered abilities which have no connection with the world of computer technology. there is another reason that lawyers, in general, have not incorporated technology in their daily practices. most lawyers are simply lacking in management training and spend the bulk of their time working in the business and not on the business. they are so concerned with the day to day running of the practice, meeting deadlines, running files and servicing clients (which is their core business) that they have no time to consider whether they could be improving their management systems, and if so, how. despite such reluctance to embrace technology being shown in australia, the last decade has seen a vast increase in the availability of law firm ‘case and time management’ software programs in the u.s.a. software programs such as ‘time matters’, ‘amicus attorney’, ‘perfectlaw’ all provide various degrees of front office computer related assistance in running a legal practice. there appears to be an understanding amongst u.s. attorneys that providing such forward-looking technology to their employees is not simply a question of efficiency, but also enables them to attract promising recruits – “the new generation of lawyers leaving law school has been raised in an era of computers. soon we will have a generation of law students who have never known a time when the internet was not available. the level of expectations and reliance of sophisticated approaches to information and technology of these lawyers is very high.”1 this paper will investigate the current use of technology in law clinics in australia. it will look at the challenge of integrating case management and assessment technology in clinical teaching clinical legal education management and assessment software 177 * ross hyams, b.a., ll.m is a solicitor and senior lecturer in law at monash university. he has taught in the faculty of law clinical program since 1990 as the coordinator of the monash-oakleigh legal service and then, from 2001, director of the springvale monash legal service. he would like to thank his colleague jamie walvisch for his helpful comments on an earlier draft of this paper. 1 dennis kennedy, ‘creating an environment in law firms where artificial intelligence and knowledge management will work’, http://www.denniskennedy. com/kmai01.htm practices and propose some creative ways of creating, integrating and managing such software to enhance not only the way clinics are run, but also how students are taught. it will also make some suggestions and provide an analysis of a comprehensive computer package which would provide a resolution to many of the law office management and student assessment issues facing law school clinics around australia today. live client law clinics at australian universities now have the opportunity to embrace legal case management technology and to include it as part of the way clinics are run and how students are taught. clinicians have fought (and, for the most part, won) the legal education credibility battle, which has been raging since the creation of springvale legal service in 1973.2 clinics have now finally become an accepted part of the curriculum in many australian universities, especially in law faculties established in the last ten years.3 their pedagogical aims have been, for the most part, accepted as being sound and they have secured a somewhat begrudging tolerance from even the most entrenched members of law school staff, some of whom have continued to adhere stubbornly to langdellian teaching methodologies. having achieved all this, legal clinics’ futures are by no means secure. there are many challenges currently facing them and their continued existence will only be achieved by acknowledging these issues and dealing with them with creative and inventive techniques. current technology in this author’s view, technology can provide clinical practices with a number of benefits that, for the purposes of analysis, are best divided into two main areas: 1. case and time management issues that are relevant to all legal practices; 2. educational and assessment issues that are pertinent to the specific needs of a university based clinical legal education practice. case and time management according to u.s. attorney elliott zimmerman, a good computer system should be able to: • integrate nearly every piece of information that the office works with and make it instantly available; • generate the current caseload, key deadlines and case proceedings at the touch of a button; • produce calendar reports showing key dates; • furnish a phone directory; • create reports providing information from which the firm’s caseload can be analyzed.4 178 journal of clinical legal education december 2004 2 the springvale legal service (now known as the springvale monash legal service) first opened its doors as a community legal service on 23 february 1973. its clinical legal education program commenced in 1975. 3 for example, university of newcastle. 4 elliot zimmerman: ‘what to look for in case management software’ practical lawyer, philadelphia, september 1995, volume 41, issue 6, p. 29 software that assists the ‘front office’ aspect of a legal practice described by zimmerman (as distinct from the trust accounting and budgeting facets of the practice) can have various functions. basically, these functions can be broken down into the following key areas: • client database; • calendaring; • telephone directory and messaging; • document management and text searching; • legal research. each aspect of these functions can be broken down into ‘sub-functions’ – individual on-screen tools which can be used to streamline the workings of the legal practice. these will be further expanded upon below. educational and assessment issues specific to clinical legal education are technological requirements that would assist clinical teachers in their pedagogy. computer programs can be designed that will help teach students effective time management, good file note technique and basic case management skills. in addition, this technology can help in assessment of students by making clinical assessment more effective, thorough, equitable and ‘transparent’. thus, the educational and assessment functions of such a program can be broken down into these key areas: • tracking students’ progress over time; • reviewing students’ files on a regular basis (say, weekly or fortnightly); • tracking informal mid semester feedback and preliminary assessment; • evaluating court appearances (real or simulated) and other discrete tasks such as court reports, written assignments and community development projects; • providing final assessment of students’ casework and calculating final marks. currently, clinical supervisors in the law faculty at monash university have a detailed set of criteria for assessing students which translates specific skills into percentages – for example, the skill of ‘taking instructions from clients’ is broken down into five ‘sub-skills’: • approach to client; • fact gathering; • interview control; • communicating advice; • assisting client to decide. these sub-skills are not assigned individual marks, but the major skill of ‘taking instructions from clients’ is assigned a mark of 7.5 out of the total 100. there are five other major skills in the marking criteria, all of which are broken down into numerous sub-skills. these criteria greatly assist clinical supervisors in determining case work marks – but, with the exception of a single marking meeting at the end of each semester in which supervisors compare marks, the reckoning clinical legal education management and assessment software 179 of how specific marks are provided for each skill and sub-skill is an individual exercise left to each clinical supervisor. the level of importance one supervisor attaches to the sub-skill of ‘fact gathering’ may differ markedly from that of another supervisor and thus students’ marks are not being assigned equally. subjectivity creeps in and there is no way of establishing uniformity. furthermore, the monash clinical program has been recently criticized for possessing no external moderation of marks awarded to students for service provision work.5 each supervisor is responsible for his/her student’s casework mark and there is very little input from other supervisors or staff. if a locum or new supervisor joins the ranks, they are provided with a copy of the assessment criteria and this is their only training in assessment tasks for this subject. currently, students who are dissatisfied with their casework result will be provided with a copy of the assessment criteria sheet, duly filled out by their supervisor in order to show the student’s strengths and weaknesses and enlighten the student as to how a particular result was reached. however, as the ‘sub-skills’ are not individually assessed, it is very difficult for the supervisor to explain or justify how a particular portion of the mark was calculated. there is no other supervisor or external moderator who can assist to explain or justify the calculation. if a student wishes to accuse the supervisor of bias or subjectivity in the marking process (or favouritism to another student), there is little a supervisor is able to do to defend his/her position. clearly, this current situation is untenable, if not positively hazardous, for clinical supervisors. clinicians are relying on inherent marking skills and the good graces of their students to ‘get it right’, but there is very little in the way of checks and balances to protect clinical teachers from allegations of an incompetent and inequitable marking regime. the need for change an informal examination of clinical teachers in various australian universities6 reveals that computer technology has had very little impact on case and time management at legal clinics. most (although not all) client databases in university legal clinics are dependent on the ‘clsis’ (community legal service information system) provided by the commonwealth government for the community legal service sector in 2003. although a quite sophisticated database, clsis is still only a client recording system and provides no other beneficial functions. a handful of clinics use microsoft outlook or palm pilot for calendaring functions – however, it appears that most clinics’ ‘calendaring’ takes place with individual diaries and perhaps an office ‘court diary’ in which important court and limitation dates are entered. further, it appears that there are no legal clinics that currently utilize any form of student assessment technology. a law school cannot possibly give the right message to its students regarding the importance of clinical legal education, or the value to be placed on appropriate client contact, when the students must perform clinical work with outdated technology, or indeed, with no technology at all! the question of appropriate computer resources is all pervading – considering that law clinics usually have a dual objective (that of servicing a needy client-base, and providing innovative legal education 180 journal of clinical legal education december 2004 5 informal review of clinical legal education programmes at monash university, professor hugh brayne, university of sunderland, uk, july 2003 (unpublished) p.4 6 a series of questions were put to university staff members of clinical programs at monash university, (vic), southern cross university (nsw), flinders law school (s.a), university of queensland (qld) and murdoch university (w.a.) see appendix a for results. to its students), such under-resourcing fails students in both areas. it disables students from doing their job properly if they are unable to access appropriate legal resources required to conduct a file. it undermines their learning experience if the legal clinic is unable to correctly function due to inadequate and out of date systems. it sends a message to the students that the law clinic is merely paying lip service to the ideal of clinical teaching methods. thus, for many legal clinics at australian universities, adopting a computer based case and time management program would not be a matter of replacing an outmoded system but of integrating this kind of technology for the first time. in this author’s opinion, the time is more than ripe – clinical educators are failing each time that a student is released from a semester at a legal clinic without exposing them to the sort of technology that they may be shortly facing in legal practice. in order to improve the efficiency of clinics’ legal practices and resolve some of the dilemmas surrounding the need to regularize assessment procedures, a computer program is required that can seamlessly blend these areas into one package. further, such a program should also integrate so-called ‘back office’ functions such as bookkeeping, trust accounting and budgeting. exploration of the availability of such programs reveals a scarcity – there are many u.s. law firm programs which would satisfy some of the case and time management requirements common to most legal australian legal practices,7 but they would all require a significant level of customization in order to be appropriate for the australian legal environment. there are also many programs that cater for the needs of medical, dental, engineering, architecture and a myriad of other professional practices. nevertheless, despite research into educational software packages this author has had no success in discovering any software that is purpose made for a clinical teaching environment, whether it is in law, dentistry, medicine or similar professions. if pre-packaged or existing legal software systems are already available, why the necessity to create a new product? one of the problems with pre-packaged legal software systems is that they do a lot of jobs well, but there is no job they do as well as a tool designed for that purpose.8 accordingly, the simplest way to obtain such software is to design and create it in accordance with legal clinics’ unique needs. enter ‘clemas’ (clinical legal education management and assessment software), a computer program which currently only exists in the mind of this author. however, a modest financial and professional commitment could turn such a program into a reality and become available to legal clinics across australia within a short space of time. introducing clemas – what would it do? clemas would have two distinct purposes – managing the clinical legal practice and assisting with the assessment of students. the following provides a detailed analysis of these functions – 1. managing the clinical legal practice client database – this is currently being provided by clsis to most community legal services around australia, including legal clinics. it is a relatively sophisticated database program which enables users to perform client conflict searches, enter basic client data, (such as name, address, clinical legal education management and assessment software 181 7 such programs from the u.s.a. include: amicus attorney, juris, time matters (5.0), needles case management software, lawex corporation trialworks(tm) and prolaw software. 8 john lederer: ‘shoeshines, coffee and case management’, law office computing, costa mesa, feb/march 1999, volume 9, issue 1, pp 10–12 level of english, place of birth and such like) and includes fields for information regarding the client’s legal problem. it enables users to sort client information in various ways and to create tables regarding problem types, client gender and age, level of income, etc. however, this is the extent of its functions. the clemas database could either replace clsis as a comprehensive client database, or be simply designed to add functionality to it. realistically, as much money and effort has already been expended on the creation of clsis, it would be more logical to utilise its current functions. it is proposed that clsis could be enhanced. for example, clsis currently has the ability to perform conflict searches and to sort matters by client name and matter type this could be enhanced by providing an ability to also perform searches by other means – student i.d, supervisor, date opened/closed, gender, country of birth, and other ways, customisable by the user. further, this information (which is presently accessible in clsis as statistical data and reports)9 could become downloadable as word, excel, html format or pdf files so that the data can be manipulated for documents such as annual reports and staff meetings. calendaring – currently, it is quite rare for lawyers to use calendaring systems that are more sophisticated than hand-written diaries. anecdotal evidence points to some use of personal digital assistants, such as palm pilots and it appears that microsoft outlook is also favoured to some extent. clemas would include a calendaring system that would be customizable for both office wide and personal use. such a system would have the ability to manipulate diary data so the user could read data not just in dates, but as monthly summaries, by case name, level of urgency, important limitation dates and the like. the program would have embedded court time limitations specific to the relevant jurisdiction. thus, if a note is entered into the calendar relating to the commencement of litigation, clemas would immediately insert the relevant procedural or time limitation dates (such as the last date to enter a defence) into the diary – and also automatically create seven, five or one day reminders prior to the limitation dates, as defined by the user.10 similarly, reminders and prompts could be incorporated for clinical assessment tasks such as student file reviews and items of student work being due. the calendaring system would also be able to provide status reports at start up each morning specific to each user, advising number, type and time of appointments during that day and items of work scheduled for the day or not done on previous days which have carried over. this could be customisable for each user and include a task scheduler and ‘pop up’ on screen reminders (say, one hour or 30 minutes prior to a scheduled meeting) in a bright and different colour to the normal screen background to differentiate it. finally, the coordinator or manager of the clinic could be provided with ‘god’ status which would enable him/her to display multiple staff calendars on one screen along with the ‘office’ calendar for comparisons and to check rdos, holidays and times available to all staff to hold meetings.11 this would provide a huge advantage to the efficient running of the clinic. telephone directory and messaging – most lawyers report that their telephone and messaging systems consist of a personal teledex, diary or again a form of personal digital assistant. 182 journal of clinical legal education december 2004 9 clsis training course for community legal centres’ david j foreman & associates, version 3.0, august 2003 10 brent roper: ‘legal technology superstars’ legal assistant today, costa mesa, may/june 1995, volume 12, issue 5, pp 44–50 11 steve schmidt: ‘when time (really) matters’, law office computing, costa mesa, april/may 1999 volume 9, issue 2, p. 39 it is unusual to find an ‘office wide’ telephone directory and/or messaging program in operation in legal clinics (or indeed in many law firms). it is proposed that clemas would provide both a personal and office wide telephone directory, customisable to each individual staff user. thus, a catalogue of often used telephone numbers and addresses could be accessed on screen by all participants at the clinic, including students and volunteers. passworded users of the program (such as staff members) could personalise the catalogue for individual use, which could include contacts in their particular area of expertise and, indeed, their personal telephone list. of course, the information could be readily transferred into ms word or other programs for word processing needs, such as mailing lists. further, the ‘sticky note’ system of phone messages could be abandoned. clemas would include instant phone messaging12 – the receptionist or anyone who happens to receive an incoming call could instantly type telephone memoranda ‘on screen’ and send it directly as a ‘pop up’ on recipient’s screen (much like an email). this can even be achieved while the recipient is on another call to advise that a call is waiting and from whom. this phone messaging ability can be integrated with the calendaring system and thus act as a ‘to do’ list. the program can be modified to place such messages (if unattended to) on users’ calendars and continue to roll over daily if not attended to. this would reduce the risk of little slips of paper or sticky notes floating around the office getting lost, or staff/students forgetting to give the memorandum of a telephone message to the appropriate supervisor or staff member. document management – straightforward access to useable precedents is a key issue for any legal practice. university legal clinics usually have multiple users, including staff, students and a large roster of volunteers and thus appropriate document management is essential for the efficient operation of the clinic. unfortunately, this is often done in a piece-meal fashion with supervisors relying on personal precedents held on individual stand-alone computers or a folder of paper precedents. often, reliance is placed on web based precedents (such as family law forms) which can be slow and frustrating to download, often unreliable or impossible to save. it is suggested that clemas would introduce an entire set of electronic precedents that would be tailored for the clinic’s particular jurisdiction. these could be completed on screen in ms word and saved. updates and alterations would only be possible by a passworded system administrator, thus limiting the risks of the precedents becoming corrupted. it is envisaged that full text searching across the entire system could also be incorporated. this would mean that users would only have to remember one salient point about the document (such as the form number, or a word that actually appears in the document) to be able to access it – rather than having to find it under a heading which may not meet the user’s memory of how that document is named. once a document is created and saved, the user would have the ability to later find that particular document using various criteria – by matter, client, date, supervisor, student – or even a word or phrase within it. further, the addition of a scanner could provide an ability to scan printed forms into the system to create writeable precedents. medical and other expert reports could also be scanned and excerpts from such reports printed as quotations in affidavits or used in briefs to barristers. investigation of the needs of clinical teachers revealed that 91% of clinical teachers questioned about this area of functionality stated that electronic precedents would be ‘extremely useful’ to the clinical legal education management and assessment software 183 12 id. way they operate their clinic. in addition, 75% believed that it would also be extremely useful to be able to scan documents into the system for later use.13 there is obviously a dire need for clinicians to operate and maintain a thorough and systematic electronic document precedent system, as it impacts very keenly on both the legal practice and the teaching within it. once a matter has commenced, there is often the need to produce numerous documents which require repetition of client and other party details such as name, address, court case number, etc – family law matters are an example of this necessity. clemas would be able to create standard letters and envelopes, pleadings, discovery, and other form documents which will automatically merge party information, rendering this boring and unproductive repetition unnecessary. legal research – it is proposed that clemas could be linked to on-line publications such as the lawyers’ practice manual. the relevant web-site reference, or reference to the relevant chapter of the paper edition of the lawyers practice manual (or similar) could be activated or flagged when a particular legal subject matter is entered as the legal ‘problem’ in the client database. this would allow for greater student self-directed learning. further, the program would provide the facility to link directly into other web legal resources (such as austlii). this could be customizable for both personal use (that is, a list of ‘favourite’ or most often used sites) and office wide general legal sites which may be of assistance to students and volunteers. it is envisaged that this would be possible without the necessity of moving out of the clemas ‘shell’ into an internet site – it would be directly accessible from any of the clemas functions, such as the database or the calendar and also from non-clemas programs such as ms word. when research is carried out on a file, it often disappears when that file is no longer active. that is, it is often a file specific line of investigation into a particular legal area, the results of which are often physically placed on the file and filed away when the matter is closed. in this way, the research is ‘lost’. it is very frustrating when a similar matter arises weeks or even months later and the supervisor can no longer remember the outcome of the research, the name of the file or the student who handled it! clemas would resolve this issue by enabling research memoranda and opinion letters on any particular file to be placed in an electronic ‘library’14. legal memoranda, written by students, supervisors, other solicitors or counsel could be scanned into the system and added to the electronic library under customizable headings and be readily accessible when people are working on similar matters and wish to have the benefit of previous research. of course, once a research document is created and saved, the user would have the ability to later find that particular document using virtually any criteria such as matter name, client name, date, supervisor, student, words or phrases within it. 2. student assessment functions tracking students’ progress and reviewing files – many clinical teachers rely on their memories and infrequent note taking to keep track of their students’ progress over the course of the semester. this is haphazard and exposes clinicians to accusations of ineffectiveness in marking. clemas would not only provide a model for systematic on going assessing of students, but (more 184 journal of clinical legal education december 2004 13 ibid note 9. 14 this concept is derived from the u.s. amicus attorney program as described in ‘welcome to amicus attorney: the world’s most widely used practice management software’ http://www.amicusattorney.com importantly in this author’s opinion) would provide demonstrable evidence of systematic marking techniques. at its simplest would be the provision of a dedicated screen with fields for supervisors’ notes and student feedback. every time a discussion about casework and/or academic progress is held between supervisor and student, this screen could be completed and saved, providing a history of that particular student’s progress through the course. prompts could be automatically generated or manually inserted through the calendaring system to remind supervisors to create regular (weekly, fortnightly, etc) entries. again, it is apparent that there is a glaring need for such a straightforward marking tool. inquiries of clinical teachers indicated that 80% believed such a function would be ‘very useful or extremely useful’ in their clinical teaching.15 supervisors run clinical client in-take ‘sessions’ on different days of the week and thus often find it difficult to find a time to discuss their students with other members of their teaching team. this can lead to feelings of isolation and lacks the benefit of colleagues’ opinions and observations of students’ work.this remoteness can also expose clinical teachers to accusations of bias or prejudice against a disgruntled student. clemas would go some way to resolving this problem by allowing supervisors on-screen access to all other supervisors’ notes and student feedback for comparison. examples of students’ written work could be also scanned into the program and attached to the each student’s individual assessment page. this would permit the supervisor to be quite specific in his/her discussion with the students about their written work and allow examples of progress (or lack of it) to be displayed on-screen to the student during feedback sessions. it would also enable other supervisors to observe examples of written work (both good and poor) to compare their own students against. the comments regarding students’ progress and feedback could be linked on screen with notes regarding the files they are operating. the program would automatically provide students’ files in alphabetical order or another array, (such as file number or date opened) as customized by the supervisor. fields would provide space for an ongoing description of the progress of the file. each file could be scrolled through while the progress and feedback fields remain on the screen. this information would be saved as the semester progressed, so that any clinical supervisor can always check how many files a student is running, what the substantive issues are, what position each file is at and how the student is progressing academically. this information would be extremely useful when it becomes necessary to finalise casework marks at the end of the semester, as it would provide a ‘snapshot’ of each student’s workload and progress at each time such data was entered throughout the semester. if supervisors found it constructive, preliminary marks or grades could be entered on these feedback screens. an assessment table could be generated that can be viewed as a chart, table or a graph so that the students’ progress could be easily evaluated in an ongoing manner throughout the semester. supervisors would also be able to compare these ongoing marks against other students (both current and past) with the ability to create comparative tables or charts. this would give supervisors valuable insights into the students’ learning patterns. mid semester review / assessment – it is a feature of many clinics that supervisors will afford an opportunity to students to participate in a formal feedback and discussion session at the halfway clinical legal education management and assessment software 185 15 ibid note 9. point of the semester. this assessment often consists of a ‘spot check’ of files, to make sure files are neat, readable, in order and that file notes are up to date. it may include a discussion of each student’s personal diary system for file management and is usually also an opportunity for the students to give feedback about how they feel about the course – seminars, tutorials, supervision at the clinic and the like. most supervisors require students to complete their own ‘self-assessment’ sheet prior to the discussion to identify their own strengths and weaknesses and provide a starting point for discussion in which they embark on a self critique of their own process. supervisors usually make informal notes of these discussions and retain the ‘self assessment’ sheets as part of their later marking. the review is a very important aspect of the marking process as it gives the students a valuable insight into their progress and offers them detailed instruction regarding how they can improve their performance in the subject. when calculating students’ final assessment at the end of the semester, supervisors often look to the mid semester review to provide a benchmarking process as to whether the feedback given to the student was accepted and areas requiring improvement were worked upon. as such, detailed and explicit notes are required for the help of the student and the security of the supervisor! it is this author’s opinion that such an important portion of the marking of the course needs to be treated more methodically by supervisors and that clemas could be of assistance in this area. at the outset, supervisors must actually remember to carry out the review at the midpoint of the semester – clemas could easily resolve this by automatically calculating the date for mid semester assessment at the commencement of each semester and inserting an appropriate reminder on that date in the calendaring system. a dedicated review screen could be provided with a reminder checklist to ensure that all areas of discussion are covered with all students – thus providing the uniformity that is currently lacking in these feedback conferences. again, fields for supervisors’ notes and student feedback would be provided. to avoid the problems of assessing in isolation, supervisors would be able to read each other’s comments and add theirs on screen, based on their experiences with supervising and observing each other’s students. if students were required to complete ‘self-assessment’ sheets prior to the meeting, these could be scanned into the system and linked to the on-screen comments, the student retaining the original. if a provisional mark is given, it can be entered on screen and comparative charts and tables generated between current students and/or students from previous semesters. in this way, supervisors can note any trends in the marking process within the current semester – for example, a particular supervisor giving consistently higher or lower marks to his/her students. it may also be useful to observe trends which develop over time – for example, supervisors may wish to determine if their own marking is getting harsher or more generous. written reports and assignments – in addition to casework, clinical students are usually required to submit at least one piece of written work which provides some reflection on their clinical experiences. it usually relates to an issue of substantive law, the application of law or the operation of legal processes and is often linked with issues that arise in the day-to-day work of the clinic. again, assessment of this work is most often the responsibility of the student’s particular supervisor. sometimes, supervisors share the marking or will ‘second mark’ each other’s students’ papers to provide some consistency in the assessment process. again this is an area of assessment which would benefit from clemas technology. assessment data could be entered into established on screen assessment tables setting out uniform assessment criteria. similar to the mid semester review screens, fields could be provided for supervisors’ notes and for comments by other 186 journal of clinical legal education december 2004 supervisors if they also read the student’s work. comparisons of comments made and marks given could be accessed by all supervisors, rendering the marking consistent and transparent across the students. the program would save all screens created in an archive so that they can be retrieved later by the supervisors (with appropriate passwords and level of access) for use when explaining marks to disgruntled (or delighted) students or when writing references or other memoranda. marking trends could be observed with ease and provide clinical teachers with an instant overview of students’ learning patterns. final assessment – as many clinical courses comprise diverse elements,16 final calculation of students’ assessments can be a complex and frustrating task for the chief examiner of the course. the straightforward ability to enter assessment data into established tables for each supervisor’s students would streamline the process markedly. again, a dedicated screen could be established for this purpose which may be accessed by all supervisors, but have the safeguard that they could only enter and alter their own students’ marks. clinical supervisors who were questioned by the author about this issue were resoundingly positive to such a simple innovation with 81% stating they would find this addition to their practice ‘very useful or extremely useful.’17 the diverse marks for each element of the course could be entered into a spreadsheet which then converts the mark to a percentage, and then calculates a final mark and grade. if the marking regime alters or a particular student is subject to a special regime, the tables would be alterable by a system administrator to take the changes into account. fields could be created for comments from both the student’s supervisors and other staff members who were involved in the marking of the students. comparative charts and tables would, of course, also be able to be generated. most importantly, the data from these screens could also be archived and saved so that a student’s mark (and most importantly, how it was calculated) can be accessed quickly and easily if it becomes necessary to do so at a later date. accessibility and security because a clinic usually has a large and diverse number of users, differing levels of access would have to be available to ensure security of data. clemas would have two categories of sensitive data: 1. client information – this includes clients’ individual details such as name, address, telephone and fax numbers, as well as personal information given by clients as part of the solicitor/client relationship. 2. student information – details of students’ progress, comments made about them by supervisors, and their marks and grades. obviously, the system would have to have built-in access levels which would only provide access to the above data for certain categories of people. it is suggested that the system would encompass four levels of access which could be made available to the various categories of users, as set out in the following table: clinical legal education management and assessment software 187 16 the ‘professional practice’ course at monash university faculty of law comprises of a minimum of three separately marked elements – casework, community development task group and assignment. however, if students choose court appearances instead of a written assignment, this adds an additional three discrete marks into the final assessment calculation. 17 ibid note 9. function levels of access students and staff and system volunteers supervisors director administrator (level 1) (level 2) (level 3) (level 4) client enter data and view access level 1 + access level 2. access level 3 + database records only. ability to close files ability to add and print information delete users and records calendaring add new calendar access level 1 + access level 2 + access level 3 + functions dates to legal ability to create ability to view all ability to alter service diary. diary reminders, personal diaries. configuration of view dates and delete entries and calendaring system reports. use personal customisable diary. statistics view and print access level 1 + access level 2. access level 3 + and reports local reports. view and print ability to send australia wide reports legal service of other legal report to npc services and clinics. trust add information for access level 1 + access level 2 + access level 3 + account own files only, for access information ability to add, ability to alter information local file use. for all files delete and alter configuration of view information (read only) all financial trust account for all other files. information for information all files. system. telephone view and print access level 1 + access level 2 + access level 3 + directory office telephone create, view and ability to alter, add ability to alter directory. use print personal or delete configuration of phone messaging telephone directory. information to/from telephone system. telephone directories. directory system document access precedents. access level 1 + access level 2. access level 3 + management access full text create and save ability to alter searching across standard letters and configuration of student and volunteer other form document sub-directories. documents. access management access direct links scanning of forms system to downloadable to create precedents web docs legal link directly into access level 1 + access level 2 + access level 3. research office web resources. ability to create and ability to link to access research customize personal personal and all memoranda and list of on-line staff lists of on-line opinion office resources. resources. database ‘library’, using various criteria (dates, user, alphabetical, etc). 188 journal of clinical legal education december 2004 limiting access to certain categories of workers is also a protection device when something goes awry. for example, in the above table student access to the calendaring functions is limited to adding calendar entries to the office calendar – students would not have the ability to delete a calendar entry. this is deliberate. without this limitation, if an important court date is missed, an errant student might be able to get into the system and delete a calendar item to ‘prove’ it was never entered in the first place.18 further, in order to monitor usage and to detect any abuses of the system or attempted incursions into disallowed areas of access, you could have a ‘secret’ file which is only known about and only accessed by senior management or the system administrator. this can detail all computer activity on each file and thus be like an audit trail.19 external accessibility the issue of remote access may be a philosophical ‘leap of faith’ for many lawyers and clinical teachers. in this author’s opinion, it is a fundamental issue of fully embracing the possibilities of legal computer software. it is also essential that clinical teachers understand and embrace the technology if they are to attempt to equip students with relevant the skills they will need in technologically advanced legal practices. richard hugo-hamman, managing director of midware (a software firm) states: “i expect practice management software will develop to a single interface both in-office and via remote access, through a constant web interface for internet, intranets and extranets, with practice management data being published and recorded in web view. the interface of the native practice management software will become redundant – it will be part of the firm’s own intranet.”20 function levels of access students and staff and system volunteers supervisors director administrator (level 1) (level 2) (level 3) (level 4) external ability to gain ability to gain access access level 2 + access level 3 + accessibility access to to all of the above ability to gain access ability to alter calendaring functions by remote to client database configuration of functions, access (except by remote access. external telephone directory client database). accessibility by and document limiting or adding management only. functions. assessment none. ability to access all access level 2. access level 3 + functions assessment functions. ability to alter configuration of assessment functions clinical legal education management and assessment software 189 18 paul bernstein: ‘how secure is your case management software?’ trial, washington, november 1996, volume 32, issue 11, pp. 84–85 19 ibid. 20 krathyn white, ‘practice made easy’, lawyers weekly, issue 144, 23 may 2003, pp. 14–15 at 14. one of the vast advantages of a system such as clemas would be the ability to link in to the program via a remote computer. because clinical supervisors often work from a variety of locations (home, the clinic, the law school or clinical outreach services), being able to remotely access letters, precedents, student assessments and such like would be extremely convenient. as one american attorney puts it: “two words: remote computing. do you want to shovel your car out after a snowstorm or do you want to stay home and telecommute by modem? do you want to have to cart around boxes of documents or do you want to carry scanned images of all those documents on one cd-rom? do you want a case management program that shows you what you need to get done, gives you information you really need and also puts that information on a palm device for you?”21 accordingly, for clemas to be truly functional it must have the ability to provide secure access to any of its functions by remote access. this would enable authorised users to get information from – or put information into – clemas, from anywhere with any e-mail enabled device (laptop, mobile phone, etc), or through a personal digital assistant such as a palm pilot. the question of remote access affects the entire architecture of the system and would have to be considered before other significant changes are made. arguments as to whether students should have access to this function go both ways – • students should be able to use it because it is the type of technology that they will be expected to be familiar with in practice. if clinicians are serious about their educational role, then students need to be trained with up-to-date skills which will make them more employable. • further, students are currently enabled and encouraged to work from home by letting them email work to their supervisors. this is just increasing their ability to work more effectively off-site. • however, remote access always comes with issues of data security. the more people accessing data remotely, the more chance there is of someone hacking into it. it creates an unnecessary level of risk. students can work collaboratively with their supervisors from home or other off-site location by email whilst the supervisor has remote access capabilities. on balance, if clinicians can be comfortable about the minimal possibilities of hacking or data corruption that may result from remote access, students should be provided with limited remote access. this would mean providing them no access to the client database or student assessment functions. it would nonetheless mean access to calendaring, document management, legal resources and telephone directory functions. in accordance with the access levels set out above, remote access to the client database could be limited to managerial staff only (coordinator/director) in order to further minimise any possibility of computer hacking. 190 journal of clinical legal education december 2004 21 dennis kennedy, ‘a prudent approach to legal technology spending in a slowing economy’, http://www.denniskennedy.com/prudent.htm development, maintenance and training – funding issues one of the oldest and most persistent concerns of most australian legal clinicians is the constant battle of resources. academics often complain that they are continually being asked to do more with less. nowhere is it more keenly felt than in the law clinic. it is not limited to issues like computers and information technology, but is felt down to the level of being able to simply purchase enough envelopes with which to write to clients in order to advise them of the progress of their matter. time and time again, legal clinicians have called upon law schools (and their deans) to adequately support their own clinical programs. the pearce report22 stated that a “modern and properly funded law school should be able to develop clinical legal education as a significant dimension of its undergraduate legal education.”23 use of appropriate technology comes with the basic premise that it must be properly resourced. a once-off payment to purchase software is of no merit unless there is an ongoing financial commitment to train staff and students and to provide continued technical assistance. technology is only going to be useful if all staff is actually using it. not only does there need to be a financial commitment, but an ideological commitment to properly train all staff in software on an ongoing basis – “basic training will get the staff acquainted with the layout of the system...advanced training is necessary to continue the progress into more sophisticated areas and to keep the system ‘fine-tuned’”.24 furthermore, students cannot be expected to receive any educational benefit from using case management software when they are unable to be adequately trained, due to supervisors’ lack of commitment to the software or understanding of it. developing and maintaining a system such as clemas is going to be an expensive operation. all legal clinics work with tight budgets and will not necessarily have the funding to maintain such a program and adequately train staff to use it. the question which must be tackled is – where will the funding come from? it is unlikely that any future commonwealth government, from either side of the political spectrum, is going to change the current policy requiring universities to raise successively higher proportions of their income. this means that law clinics are going to be put under increasing financial pressure. however, law clinicians may have a number of financial options for developing and maintaining such a software system, some of which are more feasible than others. an attempt could be made to justify this increase in expenses (in a subject already considered by the law school to be expensive) by arguments to faculty managers based on the quality of legal education being provided to the students. the arguments (all fairly hackneyed and used now over many years) go something like this: skills teaching at australian law schools are now an accepted part of most curricula. the clinical environment is fertile for the teaching of both ‘hands-on’ practical legal skills, as well as legal ethics. this sort of legal education cannot be replicated by traditional lecture methodology, small group teaching or simulation exercises, all of which are interesting and useful methods of teaching, but pale by comparison with the immediacy of liveclient interaction. further, a technologically advanced law clinic provides the ‘bells and whistles’ that attract students to apply to that particular law school, rather than the competitor that cannot clinical legal education management and assessment software 191 22 d. pearce et al (1987) australia law schools: a discipline assessment for the commonwealth tertiary education commission, australian government publishing service. 23 ibid, para 2.184 24 stacey hunt: ‘ten tips for implementing a case management system’, legal assistant today, costa mesa, nov/dec 1997, volume 15, issue 2, p.62 offer a clinic. the clinic also breaks down the ivory tower syndrome that alienates law schools and universities from the general population. these are all acceptable and persuasive arguments, but they have been employed for a number of years and have lost their currency in today’s tense budgetary climate. faculty finance managers are interested in delivering state-of-the-art quality legal education (as are all personnel who are employed in a law school), but they have difficult financial decisions to make based on competing requirements. claims based on the notion of ‘improved quality of education’ just aren’t enough. accordingly, legal clinics which intend to survive and remain relevant in their teaching need to look outside of the university budget for additional financial support. the obvious place to start is in the private legal sector. there is increasing social and governmental pressure being exerted on private firms to supply more pro bono work to the community. legal services and law clinics have not yet fully drawn on this important source of assistance in a methodical way. law firms have a preference for high profile public interest work which is going to enhance their reputation and standing, and inevitably bring in more paid work. unfortunately the sort of caseload which is the majority of work at legal clinics is not going to provide that level of ‘sexiness’. why should a law firm provide many hours of free service in order to resolve a complicated motor vehicle accident when they can have their name constantly in the newspapers by battling against environmental despoilers in the style of erin brokovich? the narrow concept of pro bono held by many private firms needs to be altered. pro bono work does not have to be casework – law school clinicians have enough demands on them without having to desperately search for an attractive matter that might entice a private firm to get involved in the work of the clinic. law firms need to be convinced that genuine pro bono assistance can be provided in other ways that would be more beneficial to the continued operation of the clinic. accordingly, a private law firm could ‘sponsor’ the introduction of clemas into the law clinic. a law firm could be approached to subsidize the development and maintenance of the program, or to provide funding for a certain amount of staff training sessions. for the firm, this commitment is relatively inexpensive. such a sponsorship would be readily acknowledged in publications of the clinic (such as the annual report), on the clinic’s website and even by an announcement advertising the sponsorship on the desktop display of the system itself, so that every time a student or volunteer logs on, they will notification of how the clinic came by it. it might be better to approach the introduction of clemas in a piecemeal fashion, rather than as a grand project. if work is commenced on the student assessment aspect of the system first (which, in some ways, is the most urgent) then relatively small amounts of funding can be used to initiate the project – that is, build the skeleton of the ‘house’ first and furnish the rooms later. the structure to house the student assessment aspects could be constructed and then the other parts of the program could be integrated later when further funding becomes available. the student assessment feature is also probably the most straightforward of the entire program and thus a good place to start as a ‘pilot’, as it would require a relatively modest amount of funding to initiate. in this way, discrete aspects of the program could be sponsored by different firms or other outside funding bodies (such as charitable trusts). accordingly, it might be better to approach the introduction of this technology from an ‘evolutionary’ not a ‘revolutionary’ outlook. by raising reasonable amounts of funds for separate aspects of the project and adding them on to the current system in a progressive fashion more may be achieved than by holding onto an expectation that such a large project can be initiated all at once. 192 journal of clinical legal education december 2004 sufficient training of staff, students and volunteers will be the means to the success of a system such as clemas. it must be used (and used correctly) by key staff members such as supervisors and managerial staff in order for all staff members to become comfortable and confident in its usage. training will be a large initial expense. however, the funding involved in ongoing staff training would only result in a modest increase to the clinic’s training budget in subsequent years after the instigation of the program. again, securing the commitment of a law firm to financially subsidise staff it training would be a way to overcome law schools’ concerns about the costs involved. such a subsidy would be a very small pro bono commitment for most legal firms. conclusion law school clinics cannot afford to make assumptions about their assured place in law school curricula. clinicians still fight the credibility battle in law schools throughout australia every day. a great deal of time and energy is spent justifying clinics’ existence, in terms of both community service and pedagogical aims. because this struggle for credibility is ongoing, clinicians must always keep abreast of changes to the law, developments in technology and changing requirements in the teaching environment. no legal clinic can be in a position where it is seen by students, other faculty staff or funding bodies, as being ‘behind the times’ in its supervisors’ understanding, or teaching, of legal skills. such a perception threatens clinics often stated ‘raison d’être’. because of the hands-on nature of legal clinics, teaching staff usually work closely with small numbers of students and thus assessment of them must always be above reproach. it must be disinterested, thorough, unbiased and systematic. above all, it must be transparent. the clinical legal education management and assessment software described in this paper would assist in solving many of the legal office administration and assessment issues currently being confronted by law school clinics. clinical legal education management and assessment software 193 appendix a results of survey universities which responsed: 1. monash university (victoria) 2. southern cross university (new south wales) 3. flinders law school (south australia) 4. university of queensland (queensland) 5. murdoch university (western australia) 1. besides clsis, do you currently use any other form of file or office management software? if so, which one? • outlook 2. do you use a personal digital assistance, such as a palm pilot? if so, which one? • hand-written diary • palm pilot 1. no use at all 2. somewhat useful 3. useful 4. very useful 5. extremely useful 194 journal of clinical legal education december 2004 client database level of usefulness function 1 2 3 4 5 conflict searches 8.3% 8.3% 0 8.3% 75% production of statistical data regarding clients such as 8.3% 16.6% 8.3% 33.3% 33.3% charts and graphs file note capability i.e. storing file notes in the 18.2% 0 9.1% 18.2% 54.5% database itself ability to sort matters by client name, matter type, 8.3% 0 8.3% 25% 58.3% student i.d, supervisor, date opened/closed, gender, country of birth, etc calendaring level of usefulness function 1 2 3 4 5 embedded court time limitations – i.e. diarizes time 9% 0 0 27% 64% limits automatically in computer based diary system task scheduler and “pop up” reminders 9% 9% 9% 36% 36% create 7,5,1 etc day automatic reminders 8.3% 8.3% 41.5% 8.3% 33.2% customized reminders and prompts for clinical 9% 0 18% 36% 36% assessment tasks – file reviews, mid semester assessment, etc ability to compare diaries of staff “on screen” 9% 18% 18% 27% 27% to find meeting dates, etc. telephone directory and messaging level of usefulness function 1 2 3 4 5 phone messaging ability which acts as a “to do” list – 0 9% 18% 36% 36% placed on your calendar and rolls over to the next day if not attended to. on screen telephone timer to time calls 27% 36% 9% 9% 18% customizable personal and office wide telephone 9% 18% 27% 27% 18% directory instant phone messaging – memo typed “on screen” 0 36% 27% 9% 27% and sent directly as a “pop up” on recipient’s screen. clinical legal education management and assessment software 195 document management level of usefulness function 1 2 3 4 5 electronic precedents 0 0 8.3% 0 91.7% full text searching across entire system 0 10% 30% 20% 40% ability to scan printed forms to create writeable 0 0 0 25% 75% precedents ability to create standard letters & envelopes, 0 0 16.6% 25% 58.4% pleadings, discovery, and other form documents which will automatically merge party information ability to look up documents using various criteria – 9% 0 0 36% 54% by matter, client, date, supervisor, student etc legal research level of usefulness function 1 2 3 4 5 ability to link directly into customizable web resources, 0 0 18% 45% 36% both personal and office wide research memoranda and opinion letters on one file 0 18% 9% 27% 45% available in an electronic “library” when you are working on other matters. tracking students’ progress level of usefulness function 1 2 3 4 5 provide fields for supervisors’ notes and student feedback 0 9% 9% 9% 72% scan in examples of student work and attach to 0 9% 36% 18% 36% student assessment page create ongoing assessment table that can be viewed 0 20% 10% 20% 50% as a chart or graph compare ongoing mark against other students with 0 18% 18% 27% 36% ability to create comparative tables/charts prompts and reminders for supervisors to create 9% 9% 18% 36% 27% regular weekly, monthly, etc entries through calendaring system 196 journal of clinical legal education december 2004 file reviews level of usefulness function 1 2 3 4 5 provide fields for supervisors’ notes and student feedback 9% 0 0 45% 45% ability to access all other supervisors’ notes and 9% 18% 18% 27% 27% student feedback for comparison customisable prompts and reminders for supervisors 9% 18% 36% 9% 27% to hold weekly, fortnightly, etc reviews through calendaring system mid semester review / assessment level of usefulness function 1 2 3 4 5 reminder checklist to ensure all areas of discussion are 0 9% 9% 54% 27% covered with all students provide fields for supervisors’ notes and student feedback 0 0 9% 36% 54% ability to access all other supervisors’ notes and 9% 9% 18% 36% 27% student feedback for comparison customizable prompts and reminders for supervisors 0 27% 18% 27% 27% to hold mid semester reviews/assessment through calendaring system ability for comment fields by other supervisors 0 0 54% 27% 18% court appearances/reports level of usefulness function 1 2 3 4 5 enter court appearance assessment data into established 18% 27% 0 9% 45% tables for supervisors’ own students provide fields for supervisors’ comments on court 18% 18% 18% 18% 27% appearances and student feedback able to create comparative tables/charts of 18% 45% 9% 9% 18% assessment of students’ court appearances clinical legal education management and assessment software 197 student assignments/reports level of usefulness function 1 2 3 4 5 enter assessment data into established tables for 18% 0 18% 0 63% supervisors’ own students provide fields for supervisors’ notes 18% 0 9% 9% 63% able to access all other supervisors’ data in a 18% 9% 27% 9% 36% “read only” format ability for comment fields by other supervisors 20% 10% 20% 10% 40% able to create comparative tables/charts of students’ 16.6% 25% 25% 8.3% 25% assignment marks ability to compare current students against past 18% 18% 18% 18% 27% students’ assignment marks using various criteria semester, year, alphabetical, etc by way of tables/charts provisional and final assessments level of usefulness function 1 2 3 4 5 enter assessment data into established tables for 0 0 18% 27% 54% supervisors’ own students provide fields for supervisors’ notes 0 0 10% 40% 50% able to access all other supervisors’ data in a 9% 0 18% 36% 36% “read only” format ability for comment fields by other supervisors 0 18% 27% 18% 36% able to create comparative tables/charts of students’ 0 18% 18% 36% 27% assessments ability to compare current students against past 9% 18% 18% 36% 18% students’ assessments using various criteria semester, year, alphabetical, etc by way of tables/charts accessibility level of usefulness function 1 2 3 4 5 ability to gain access to any of the above functions by 18% 0 9% 27% 45% remote access to a home desktop or notebook computer. ability to gain access to any of the above functions 45% 9% 9% 9% 27% through a personal digital assistant such as a palm pilot. 198 journal of clinical legal education december 2004 tf_template_word_windows_2010 from the field appraisal as an effective means of assessing student performance in clinical legal education at the university of portsmouth pat heather feast, principal lecturer, school of law, university of portsmouth, united kingdom the aim of this paper is to advance the notion that using the workplace model of appraisal is an effective method of assessing students who undertake clinical legal education (cle). it is the belief of the team working in the law clinics at the university of portsmouth that appraisal provides students with both praise and constructive criticism and the necessary information to enable them to improve their performance while working in the university of portsmouth clinics. giving feedback on a regular basis via the appraisal system motivates the students to strive for improvement and helps them to meet the challenges of achieving excellence. at the university of portsmouth, staff, students and, in some cases, the representatives of our partner organisations work together in our appraisal system to tackle any barriers to student success within our cle progammes. keywords: clinical legal education; appraisal; assessment and feedback introduction changes in legislation brought about by the legal aid, sentencing and punishment of offenders act 2012 (laspo) have resulted in an increased demand for free legal advice in many areas of the law, including social welfare law. university law clinics are one means of meeting some of that demand. in the 2013 consultation paper ‘transforming legal aid’, chris grayling, the then lord chancellor and secretary of state for justice, stated that “[i]n the past decade our legal aid bill has risen [and] is now one of the highest in the world, costing the taxpayer nearly £2bn each year [and] reforms should deliver savings of some £320m p.a. in 2014-15”.[footnoteref:1] response from the not for profit sector to the reform was swift and research on the impact of budget reductions across the sector have resulted in the prediction of some particularly gloomy outcomes, including stagnation in the legal process due to the question of “how case law will be made”?[footnoteref:2] [1: ministry of justice, transforming legal aid: delivering a more credible and efficient system (ministry of justice consultation paper cp14/2013).] [2: bill sargent trust, counting the cost: advice services and the public spending reductions, 2013, p. 48 ] at a recent association of law teachers conference, a colleague and i presented a paper which investigated the role of clinical legal education (cle) activities in universities within the wider legal landscape.[footnoteref:3] after an examination of whether universities are ‘filling the gap’ left by reductions in legal aid or whether using accepted pedagogic theories of experiential learning cle simply meets universities strategic aims of education and employability it was clear that university clinical activities are to a large extent having an impact on both. whether the gradual increase in the number of law schools across the uk[footnoteref:4] who offer students the opportunity of providing free legal advice to the local community via advice clinics is a response to legislative changes or whether universities see cle as a positive educational tool to aid employability is still a matter for debate. regardless of the reason however they certainly offer a useful service to the public. their primary purpose as far as the university of portsmouth is concerned is to meet the university’s education strategy[footnoteref:5] of providing intellectual challenge, enhance skills acquisition and embody academic excellence through courses that are practice informed and that engage students in research and innovation and to ensure that every student participates in career enhancing activities to learn through experience and to strengthen their personal development and to act as a vehicle for students to acquire professional legal skills. at the fore of cle is the development of professional, academic and social skills relating to interviewing, problem-solving, team-working, legal research and legal writing. this process is enhanced by a reflective analysis of the clients’ cases and by discussions with supervisors and fellow students. the experience is similar to that of a solicitor advising his or her client but, since the primary aim of any clinic activity is student education, time is generally structured to enable students to fully learn from the experience. at the university of portsmouth, clinics are generally supervised by a practising solicitor who ensures that any advice given is equivalent to that of a professional solicitor. [3: p. feast and v. brown, ”filling the gap” (alt annual conference, portsmouth, april 2017).] [4: see e.g. d. carney, f. dignan, r. grimes, g. kelly and r. parker, ‘the lawworks law school pro bono and clinic report 2014’ available at https://www.lawworks.org.uk/sites/default/files/lawworks-student-pro-bono-report%202014.pdf (accessed 1 june 2017).] [5: university of portsmouth education strategy 2016-2020 ] cle at university of portsmouth having undertaken an academic year of training, the students working on portsmouth’s assessed cle programmes are fully equipped to engage in activities which would otherwise be prohibitive under the constraints of a traditional degree where the emphasis is on coursework and examination. portsmouth’s cle programmes enable students to experience legal casework and undertake legal analysis within a structured framework, overseen (albeit from a distance) by an experienced member of staff who is also a practising solicitor. the ‘light touch’ supervision reduces the reliance on staff for an immediate answer and places responsibility on the student to apply knowledge previously gained, thus providing continuous opportunities for reflection.[footnoteref:6] [6: r. grimes and j. gibbons, “assessing experiential learning – us, them and the others” (2016) 23 international journal of clinical legal education 114.] role of the supervisor as ziegler suggests, [a]s ‘expert’, the clinical supervisor gives students authoritative information without necessarily demonstrating the thought processes or skills used to obtain them. as ‘model’ the teacher demonstrates the skills and thought processes of a good clinician providing an ‘open book’ that learners may watch and imitate. as a ‘facilitator’, the teacher guides the student in doing the actual work while focusing on helping the student to acquire and analyse information.[footnoteref:7] [7: a. ziegler, “developing a system of evaluation in clinical legal education” (1992) 42 journal of legal education 575, 583.] the role of the supervisor as ‘expert’ at portsmouth is to support students as they research information for their client. the supervisor, who is a practising solicitor, checks the results of research for accuracy and relevance and gives direction for further study. observation provides the student with an opportunity to learn how to ascertain key facts and how to come to a conclusion which can be given to the client with confidence. as ‘model’, the supervisor shares this best practice across the group. as ‘facilitator’, the supervisor stands back and allows students to learn from their own experiences, giving guidance in a supported environment without fear of repercussions. at portsmouth, the role of the clinic supervisor is probably more closely linked to the role identified here as ‘facilitator’. the aim is to encourage students to identify theoretical models and to use these in a practical setting which as ziegler suggests “guides the student in doing the actual work while focusing on helping the student to acquire and analyse information”.[footnoteref:8] [8: ibid.] the model adopted at portsmouth also resembles that propounded by ziegler in that it focuses on student involvement and participation and that by facilitating learning rather than teaching, the supervisor encourages the student to be confident in his or her interaction with the client. supervision will gradually be reduced to a point where the supervisor will only check to evaluate the advice and information for accuracy before it is delivered to the client. assessment what must be acknowledged is that assessment in higher education must not only provide certification but must also support student learning.[footnoteref:9] such assessment can, of course, be in the traditional format, i.e. examinations or coursework and as cle programmes at the university of portsmouth are part of the curriculum it is vital that assessment is rigorous and in line with university of portsmouth regulations. however, the team working on the programmes felt we needed to go further than this as in our view, students should be viewed as future employees rather than students studying how to become a lawyer and that cle provides an opportunity to consider assessment more closely aligned to the type of work undertaken. once a student enters the interview room with a member of the public that student is, for all intents and purposes, a lawyer and the client sitting in front of them expects (and why should he or she not) that the information and advice he or she is given is reliable because that lawyer is trained to act in this capacity. [9: d. bouod, d and n. falchikov, “redesigning assessment for learning beyond higher education” in higher education in a changing world: proceedings of the 28th herdsa annual conference, sydney, 3-6th july, 34-41. ] as sylvester appreciates, “[c]linic is a constructivist teaching methodology – it can deliver discipline and procedural legal knowledge but more often its role is emphasised in terms of teaching legal and intellectual skills and as a method of inculcating professional values and ethics through its traditional involvement in social justice”.[footnoteref:10] assessing these skills, values and ethics necessitates the use of a different assessment model which emphasises the practical element of this assessed unit. [10: c. sylvester, “through a glass darkly: assessment of real client, compulsory clinic in an undergraduate law programme” (2016) 23 international journal of clinical legal education 32, 37.] assessing students on their individual performance as they interact with clients is however not reliable as each client may bring to the clinic either very complex or very straightforward issues and therefore like for like skills are not being tested. the challenge for the team in assessing how well a student has performed/is performing in this environment was how to assess achievement when trying to replicate a dynamic and realistic working environment. for this reason the team decided to introduce appraisal as a means of assessing student achievement and a comparison to its use in the workplace is useful here. appraisal has the dual purpose of appraising performance and achievement and providing guidance for future activity and therefore appraising performance can become an accurate and effective assessment tool. in the workplace, an appraisal is a meeting where the manager/supervisor assesses the performance of the individual against a set of pre-agreed targets. there is a great deal to be gained from a well conducted appraisal as it can be a celebration of achievement, help to identify good performance and focus on areas for improvement. in the workplace it can also help to make decisions about career progression by discussing the individual’s aspirations for the coming year. writing on the job.ac.uk website, neil harris poses the question ‘why do we need appraisal?’ harris states “[a]ccording to the chartered institute of personnel and development (cipd), 87% of employers use some form of individual annual appraisals, 27% do them twice a year and 10% more often than that”.[footnoteref:11] these figures suggest that employers view appraisals as a key element of performance management, encouraging employees to link their performance to the objectives of the organisation, helping them to respond to changes within the industry. from the employee’s perspective it is an opportunity to consider their role within the organisation and to debate whether they are achieving objectives and goals previously set. [11: see http://www.jobs.ac.uk/careers-advice/careers-advice/1349/why-do-we-need-an-appraisal (accessed 2 june 2017). ] as is evident, appraisal is common in the workplace. the appraisal process requires employees to consider what their objectives might be and asks them to identify what they think they might achieve and whether any support or additional resources are necessary to help them achieve set targets. as students are not in the workplace, the team considered other ways of setting objectives/targets to be achieved which would directly benefit students and which would involve them in not only looking forward but help them to reflect on their experience. the team decided that setting smart targets (targets which are specific, measurable, achievable, realistic and time bound) would be useful for our purposes as, introduced in the way we did, would enable students to look beyond the ‘now’ and therefore help them with self-development and career planning.[footnoteref:12] [12: m. morrison, ‘history of smart objectives’ https://rapidbi.com/history-of-smart-objectives (accessed on 7 june 2017).] adapting workplace appraisal to cle at the university of portsmouth, in an attempt to (as far as possible) replicate the work place, the team has adopted appraisal as part of the assessment process. the appraisal is made up of three elements: we ask students to set their own objectives; we encourage them to reflect on the year; and we ask them to look forward, taking their learning into the workplace. setting objectives in the same way as employees discuss objectives with their manager for the year ahead, at the beginning of the autumn term cle students are asked to consider their own objectives (student equivalent of smart targets) for the coming year. areas often identified by students relate to improvement of one or more of the skills groups discussed above such as assertiveness or case management as well as strategies to deal with prejudice. students are asked to identify four objectives relating to areas upon which they wish to improve over the coming year. supervisors ensure that the objectives are all of a similar value in relation to their complexity and the student’s ability to achieve them, however, these are the student’s own objectives and it is therefore important that they are not contrived. in monthly student/supervisor meetings, supervisors monitor these objectives and students are encouraged to discuss any barriers they may face in achieving their objectives. the meeting provides an opportunity for the students to reflect on the work they are undertaking. hoping to replicate the working environment discussions related to how the student objectives link to other clinic related activities are held. these discussions help to reinforce in the student’s mind the contribution they are making to their own progression and development in the cle units and the value both the unit and the assessment method has in preparing them for the workplace. having discussed and monitored the objectives during the year, these form the basis of the appraisal interview which occurs towards the end of the academic year and students are required to provide evidence that the objectives they set themselves have been achieved or that they are working towards their achievement. evidence takes many forms, for example, if a student has initially identified that they feel they need to be more focused in case management, they may bring to the appraisal examples of how the skill has improved during the year. of course the supervisor has been observing the student’s progress throughout the year and their notes reinforce the student’s own evidence. reflection just as in workplace appraisal, the year as a whole is reviewed at the appraisal meeting with students discussing the challenges they have faced. reflection is an important part of the assessment. cle provides a safe environment in which students are able to ‘test’ their skills and reflecting on the experience provides a platform for future development. forward reflection forward reflection allows students to consider how they might do things differently in the future. this is a much deeper level of learning and has been referred to as transformative learning.[footnoteref:13] a student may reflect on choices made and, now at the end of the experience, review those choices in the context of any future goals, assessing how the experience has shaped their future decisions. reflecting forward helps students to consider the impact that this practical method of learning has had on their intellectual, personal or ethical development and enables them to build and develop an action plan in order to support their personal ambitions. [13: king k p, ‘a journey of transformation: a model of educators’ learning experiences in educational technology’ in pettit jm & francis rp (eds) proceedings of the 43rd annual adult education research conference (2002), pp. 195200. available: <https://www.researchgate.net/publication/266332610_a_journey_of_transformation_a_model_of_educators%27_learning_experiences_in_educational_technology>.] feedback from students suggests that appraisal is a worthwhile aspect of the cle experience and that it is effective in encouraging them to focus on self-development.[footnoteref:14] in terms of its reliability as an assessment tool, from experience it has become clear that when self-selected objectives are set, students take ownership of these and strive towards their achievement. it could be argued that there is a tension in what the team is trying to achieve by focusing on student contribution and achievement as, when used in an employment situation, appraisal is often target driven. it is the team’s belief however, that by encouraging contribution and by the student taking ownership of setting and monitoring their own targets by way of self-set objectives and discussing these throughout the process, students are empowered to fulfil their potential using a quasi-workplace model. [14: information taken from university annual student unit feedback survey may 2016 ] student satisfaction although at the time of writing 2017 results are not yet available, end of year results from university of portsmouth student satisfaction survey 2016 indicated that of those surveyed 96% of students agreed to the statement ‘the unit makes a positive contribution to my overall course’ and overall satisfaction with the unit was 100%.[footnoteref:15] the team takes this as confirmation that the students are satisfied with the approach taken and comments on these forms clearly demonstrate that appraisal plays a large part in contributing to student satisfaction, achievement and success. [15: ibid.] conclusion the number of clients seeking help from the university of portsmouth clinics and the increase in the number of students who wish to participate in cle activities increases year on year which in itself poses a challenge. this coupled with the fact that in april 2017 in its consultation paper[footnoteref:16] the solicitors regulation authority announced that the requirement for the successful completion of a legal practice certificate prior to qualifying as a solicitor will disappear will have an impact on the way law students are taught and assessed. under the proposals, as well as undertaking a new solicitor’s qualification examination, individuals will be required to undertake work experience. at the time of writing no fixed time period for this is given, however it is thought that this is likely to be between 18 months and 2 years. if these changes do go ahead as proposed, not only will cle become an increasing challenge/opportunity for universities but the assessment of such programmes will need to be carefully considered. the use of appraisals in university of portsmouth cle programmes has become very effective as an assessment tool and it is the team’s aspiration that this quasi work related method to assess student achievement in cle can be continued. [16: https://www.sra.org.uk/sra/consultations (accessed 2nd june 2017)] 209 practice report 87 peace and conflict transformation through the clinical legal education programme ngozi joy maduafor, lecturer, faculty of law, nile university of nigeria. abstract clinical legal education came to nigeria, first, as a solution to remedy the effects of epileptic access to justice and, further, to develop law students’ professional skills through rendering free legal services to indigent members of society. it was not received into the nigerian legal pedagogy without some level of resistance, however with consistent lobbying it was eventually incorporated. the clinical legal education program began with just five pilot university law clinics to implement the components of clinical legal education. despite this relatively small number, the program was able to satisfy its immediate objectives, pending other universities that could not resist the need to benefit from the program inculcated it into their legal pedagogy. consequently, nigeria now has 21 active university law clinics rendering free legal services to indigent persons and teaching community members about their legal rights. offering free legal services and educating community members about their legal rights are not the end of the benefits of clinical legal education. there are many other benefits that are derived from the clinical legal education program and in this paper, as way of just one example, practice report 88 i examine the ways in which clinical legal education is helping to curb communal violence. clinical legal education a brief history of clinical legal education in africa south africa south africa is the african country where law clinics and clinical legal education (cle) generally was first developed in africa.1 the gap caused by the state in its inability to provide adequate legal aid to disadvantaged south africans during the apartheid era led to south african law students bridging the gap through the implementation of law clinics.2 therefore, the first law clinics in south africa were institutionalized during the apartheid era to proffer legal aid services to the victims of apartheid and other disadvantaged individuals whose human rights had been breached.3 1 david mcquoid-mason and robin palmer, african law clinicians manual (institute for professional legal training, south africa april 2013). 2 haupt f.s. ‘some aspects regarding the origin, development and present position of the university of pretoria law clinic’ [2006] (39) (2) de jure, 229–243. 3 emil winkler, clinical legal education: a report on the concept of law clinics, 2013, http://law.handels.gu.se/digitalassets/1500/1500268_law-clinic-rapport.pdf (accessed 16/06/2020). http://law.handels.gu.se/digitalassets/1500/1500268_law-clinic-rapport.pdf practice report 89 the first university law clinic in the region was based in the university of cape town and was established in 1972.4 this clinic was initiated and managed by the law students, though they received supervision from lawyers outside the university.5 interestingly, the law students delivered their clinic legal aid services in the evenings in churches and town halls located in the impoverished community to the disadvantaged individuals.6 so, fundamentally it was the law students who coordinated the activities of the clinic. shortly after the establishment of university of cape town law clinics, in the following year 1973 a legal aid conference was held in south africa, funded by the ford foundation.7 this conference grew to become a strong force, advocating for the institutionalization of law clinics in south africa.8 subsequently, many other south african university law clinics sprang up. by 1981, there were 14 law clinics in south africa based in locations as diverse as cape town (1972), the witwatersrand (1973), natal (durban) (1973), port elizabeth (1974), natal (pietermaritzburg) (1974), western cape (1975), stellenbosch (1975), durban-westville (1978), zululand (1978), rhodes (1979), the north (1980), pretoria (1980), south africa (1981), and rand afrikaans university (1981).9 4 ibid at 1. 5 ibid at 3. 6 ibid. 7 ibid. 8 ibid. 9 ibid at 1. practice report 90 these law clinics were managed without the support of funds from external donors, therefore they depended heavily on the sparse support available – primarily in respect of accommodation, equipment and materials.10 the basic objective of these clinics was to ease and expand access to justice for vulnerable and poor individuals during the apartheid era.11 though the university of cape town law clinic was student staffed and student managed, subsequent clinics were law faculty institutionalized programmes. the first law clinics instituted by staff were at the university of witwatersrand in 1973 (this clinic first named its cle programme (clep) practical legal training programme; subsequently renaming it as practical legal studies in 1983. now the cle programme bears the practical legal studies12 name and natal (in durban). 13 by 1990 a progam of funding saw an increase in legal aid, due to a variety of reasons but including an increase in state legal aid services, the formal accreditation of university law clinics by the south african law society in 1993, funds for clep development from the attorneys fidelity fund (aff) and the institutionalization of the association of university legal aid institutes (aulai) with the basic objective of advocating for cle 10 ibid at 3. 11 ibid at 2. 12 ma (riette) du plessis, ‘forty-five years of clinical legal education in south africa’ http://www.scielo.org.za/pdf/funda/v25n2/02.pdf (accessed 16/6/2020). 13 ibid. http://www.scielo.org.za/pdf/funda/v25n2/02.pdf practice report 91 in south africa.14 therefore law clinics are now funded by both the universities and external donors. many law clinics in south africa operate a live client programme where individuals that cannot afford legal services are satisfied with their legal needs.15 the directors are (often) practising advocates and attorneys may be appointed to coordinate the clinic. where the director is a practicing attorney, the local law society accredits the clinic and applicants waiting to be called to the south african bar (candidate attorneys) can be, and usually are, appointed as paralegals (legal interns) offering community legal aid services to satisfy the requirements to be called to bar.16 nigeria in nigeria, the need to change the rigid and theory based legal pedagogy (lp) to that of a practical lp necessitated the inclusion of the clep into nigeria lp. the graduates possessed the relevant professional skills of advocacy, communication skills, drafting skills, interviewing and counselling skills, negotiating skills, problem-solving skills and research skills. however, the need for a revised lp became evident with law students increasingly graduating ignorant of the requisite professional hands-on skills and they 14 ibid. 15 ibid at 1. 16 ibid. practice report 92 were frequently identified as being ignorant of their societal obligations. consequently they were becoming a liability to their employers. this feat of including the clep into our lp began with prof. ernest ojukwu, prof akinseye george (san) and some other brave law lecturers organizing and attending various clep conferences workshops and seminars which necessitated the birth of network of university legal aid institutions (nulai) nigeria in 2003 to improve legal education and legal capacity in nigeria through institutionalizing the clep into nigerian lp.17 the following were some of these cle events: i. the 1st nigerian clinical legal education colloquium held at abuja on the 12th 14th of february 2004. the primary goal of this colloquium was the integration of clinical legal education into nigerian lp. ii. the 1st african clinical legal education teacher training held at durban south africa on the 4th-9th october 2004. iii. the 2nd african clinical legal education teacher training held at durban south africa 20th -24th november, 2006. 17 see nulai nigeria http://www.nulai.org/index.php/featured/54-inside-the-network-of-universitylegal-aid-institutions (accessed 17/06/2020). http://www.nulai.org/index.php/featured/54-inside-the-network-of-university-legal-aid-institutions http://www.nulai.org/index.php/featured/54-inside-the-network-of-university-legal-aid-institutions practice report 93 iv. the 1st nigerian clinical legal education teacher training workshop held at abuja on the 2nd-5th of february 2005. those in attendance aside from nulai nigeria staff were; 16 law teachers from 14 law faculties in nigerian universities and the nigerian law school, representatives from open society justice initiative, legal aid council, and the university of kwa zulunatal.18 nulai nigeria also engaged in some advocacy works to get clep accepted into the nigerian justice sector. some of these advocacy works were: i. a clinical legal education curriculum development committee organized by nulai nigeria. members of this committee were nulai nigeria staff and law lecturers. this committee visited the law clinics of the university of kwa-zulu natal and the university of johannesburg respectively to understudy their clep. ii. nulai nigeria was involved in the council of legal education committee review on legal education in nigeria. this involvement led to the inclusion of cle into the nigerian lp. the report stated that “the faculties are required to provide appropriate facilities, such as clinical consultation rooms,” and “for purposes of achieving interactive teaching, proper training will have to be given to lecturers at the various law faculties and the nigerian law school…” 18 odinakaonye lagi et.al., campus-based law clinics in criminal justice administration in nigeria. (nulai nigeria 2019). practice report 94 iii. advocacy visits to the national universities commission (nuc) which consequently led to the inclusion of cle into the nuc’s august 2004 draft benchmarks and minimum academic standards for the law degree programme. iv. also, nulai nigeria advocated for the inclusion of law clinics in the stakeholders meeting on the nigerian draft legal aid bill. consequently, the legal aid act precisely by its section 17 included law clinics as a legal aid provider.19 to consistently hone and increase student clinicians’ capacity in advocacy, research, interviewing and counseling skills, nulai nigeria annually organize the national clients interviewing and counseling skills competition for student clinicians and the winner represents nigeria in the louis m brown client counselling competition. the nigerian law clinics by the support of nulai nigeria also carry out social justice projects. some of these projects are the pretrial detention decongestion, freedom of information, community justice outreaches, and the young persons in peace and conflict transformation (yppct). interestingly, nulai nigeria started with 5 pilot law clinics: 1. abia state university (absu law clinic), 2. adekunle ajasin university (akungba law clinic), 3. ebonyi state university (ebsu law clinic), 19 ibid. practice report 95 4. university of uyo (uniuyo law clinic), and 5. university of maiduguri (maiduguri law clinic).20 due to the very many apparent educational and societal benefits of law clinics, many universities have since included the clep into their lp, therefore raising the number of law clinics in nigeria to 41.21 since the inception of clep into our lp, the clep has been rightly serving dual purposes of effectively teaching student clinicians the practical rudiments of the legal profession and rendering free legal services to the individuals that cannot afford to pay for the services of a legal practitioner. uganda it can be said that cle began in uganda through the report of prof gower which led to the development of uganda’s law development centre, responsible for the provision of free legal services in uganda.22 the report states that: one valuable method of instruction, and at the same time a valuable social service, and one obviously needed in uganda, is the running of a legal aid clinic in connection with the (bar) course… at this clinic, the students under the watchful 20 ernest ojukwu, odinakaonye lagi, mahmud yusuf, compendium of campus based law clinics in nigeria. (nulai nigeria 2014). 21 nulai nigeria, www.nulai.org (accessed 17/06/2020). 22 philip f. iya, fighting africa’s poverty and ignorance through clinical legal education: shared experiences with new initiatives for the 21st century” international journal of clinical legal education [july 2014] (1) (13). http://www.nulai.org/ practice report 96 eye of qualified supervisors, would interview, advise litigants and, carry out any necessary correspondence and negotiations on their behalf.23 the centre has a statutory responsibility regarding cle which is “to enhance the professional training of post graduate law students at the centre and promote the lawyer’s role of service to the community through practical experience based on learning and legal representation of needy persons”.24 as a result of this statutory provision, the centre has two activities in fulfillment of its cle programme which were in operation only in 1998, perhaps due to the sponsorship from the american bar association and the united states information service.25 these activities are: 1. experiential learning: through live cases, the postgraduate law students under supervision inculcate practical training by interviewing and advising impoverished persons, also they represent them in magistrates courts only and undertake other forms of legal services for them; 2. education: the centre also educated the general public of uganda on their legal obligations and rights.26 23 ibid. 24 ibid. 25 ibid. 26 ibid. practice report 97 peace and conflict transformation nulai nigeria, the brainchild and “mother” of law clinics in nigeria, in its bid to end communal violence is working with law clinics to teach community secondary school students the need for peaceful dialogues and peaceful resolution of disputes. thereby, catching the community children young while they are still at their formative years. this on-going project is tagged “young persons in peace & conflict transformation” (yppct) and is funded by the american arbitration association-international centre for dispute resolution foundation (aaa-icdr foundation).27 the goal of the project is to inculcate in young persons the knowledge, skills, and values in facilitating peaceful dialogue using conflict transformation and peace building approaches thereby making them peace and conflict transformation actors. this is implemented through clinical street law programmes which means an education focused programme which recognizes that the law affects people in their daily lives and the need for everyone to understand the law. street law has been used in crime prevention, conflict resolution, and youth advocacy for use in school systems, juvenile justice facilities, and community settings. street law is widely recognized for its contributions to public service and for demonstrating how law students can give back to their host communities.28 27 https://nulai.org/street-law/young-persons-in-peace-and-conflict-transformation/ (accessed 16/09/2021). 28 ibid. https://nulai.org/street-law/young-persons-in-peace-and-conflict-transformation/ practice report 98 nulai nigeria, in executing the yppct project, worked with five university law clinics; bayero university (buk) law clinic; nile university (nun) law clinic; kogi state university law clinic; usman danfodiya university (caliphate) law clinic; and nigerian police academy (polac) legal clinic, to produce the following outcomes: outcome 1: develop a peace and justice education programme adopted and integrated into the curriculum. outcome 2: increase knowledge in peace and conflict transformation principles for law clinic students and secondary school pupils; and outcome 3: law clinics to serve as centers for peace education and peaceful dialogue for law clinic students, secondary school pupils and community members. the project entails the following phases of work: i. phase 1: the development of a street law curriculum with law teachers and law clinic supervisors for yppct programme. ii. phase 2: the law teachers and law clinic supervisors to conduct a train-the-trainer street law workshops on peace and conflict transformation for law clinic students. iii. phase 3: nulai together with law students develop visibility materials to support yppct workshops. practice report 99 iv. phase 4: trained law clinic students to conduct a train-the-trainer street law workshops on peace and conflict transformation for selected secondary school students that will develop a peace plan for their schools; and v. phase 5: the selected secondary school students to train their fellow students through street law workshops on peace and conflict transformation. to begin the project, nulai facilitated a 2 days street law curriculum development workshop held on the 9th and 10th of september 2020 with law teachers and law clinic supervisors of the above-mentioned law clinics on yppct programme. in preparation for the workshop. the workshop articulated topics and sampled out activities to be used for training law students on peace and conflict transformation. activities under the yppct project nile university (nun) law clinic after i joined nile university through the national youth service corps in december 2016, i immediately began the work to have instated a law clinic in the university. i started with first planning a formal launch of the clinic so as to ensure critical stakeholders in the justice and legal profession sector within jurisdiction at least are informed of a law clinic in nile university for possible collaborations. the university management readily agreed to the launch and the inclusion of law clinic so the school can produce law graduates that practice report 100 will ethically and social justice conscious. therefore, the nun law clinic was launched on the 23 march 2017 so law students would be provided with hands-on legal experience whilst providing pro bono legal services to persons who cannot afford legal representation. the clinic launch was attended by various personalities working in the legal profession space and student clinicians including the clinic coordinators of the university of abuja and nassarawa state university respectively. since its inception, nun has executed three projects on facilitating access to justice to pre-trial detainees by providing pro bono legal services. these projects were executed at suleja correctional facility in niger state of nigeria and kuje correctional facility in abuja. the nun law clinic is one of the law clinics in partnership with nulai nigeria which implemented the yppct project in 2020. the law clinic students were first trained in a “train the trainer” workshop by the law teachers present in the street law curriculum development workshop facilitated by nulai nigeria. they were taught the knowledge, skills, and values in facilitating peaceful dialogue using conflict transformation and peace building approaches through the workshop topics which were: 1. understanding conceptual framework: peace 2. understanding conceptual framework: violence 3. understanding conceptual framework: conflict practice report 101 4. udhrfundamental principle of equality, justice, respect and dignity of human persons 5. facilitated dialogue 6. peer-peer mediation; and 7. developing a peace plan. subsequently, the trained law clinic students carried out train the trainer workshops for secnior secondary students in three different secondary schools (bmci school of science & technology, noble hall leadership academy for girls; and funtaj international academy) in abuja for a duration of two days respectively for each school on the following topics: i. peace; ii. violence; iii. conflict; iv. fundamental principles of human rights; v. facilitated dialogue; vi. peer to peer mediation; and vii. peace plan these workshops were carried out between may-june 2021. the objective was to empower young persons in secondary schools to embrace a culture of non-violence and practice report 102 non-extremism with the knowledge, skills and values in facilitating peaceful dialogues using conflict transformation and peacebuilding approaches. thus, building the capacity of young persons as peace and conflict transformation actors. the participants were expected to: 1. facilitate and create safe spaces for peaceful dialogue; 2. examine personal, community, global and cultural understandings of peace, conflict and violence; 3. explore theories and practices of community-based conflict transformation and peacebuilding; 4. assess root causes of community and interpersonal conflicts; 5. gain a deeper understanding of gender-based conflict; 6. develop values and attitudes that nurture a culture of non-violence; 7. practice non-violent strategies for transforming community, ethnic, religious and inter-personal conflicts; 8. practice mediation techniques for addressing conflict; 9. develop a peace plan and peer education project to implement within own context; and 10. understand universal human rights. practice report 103 at the end of the workshops, each secondary school developed a peace-plan to implement in their school. thereafter, the trained secondary school students through the implementation of their peace plan trained their fellow students on the knowledge skills and values in facilitating peaceful dialogues. for effective implementation and high impact result, the workshops were quite interactive as they were basically structured to be facilitative with every topic having an activity for discussions culled from case studies and identifications that stemmed from some set of pictures. from the reflections culled from the students, the outstanding was that of a male student who said before the workshop he had been holding a great animosity against a fellow female student because she usually takes the first position in academics in class and he was mad because he felt she had no business contesting such position with the boys that he felt are the superior gender. however, after the workshop he said he has realized that no gender is actually greater than the other and that all genders are equal then he went ahead and apologized to her there and then. some other reflections of the students from the workshops were that workshop taught them how to:  peaceably resolve conflict;  understand other people’s feelings;  listen to others; practice report 104  brainstorm to solve problems;  express their feelings clearly and respectfully to others; and  make them understand and appreciate the concept of gender equality. the students are expected to teach the community members within their jurisdiction the need to imbibe and exercise a culture of peaceful dialogues in order to end communal violence. concluding remarks from desiderius erasmus quote which states that “the most disadvantageous peace is better than the most just war” the importance of peace is clearly evident. consequently, in order to end communal violence, community members needs to understand and appreciate the need to resolve conflicts amicably. communal violence is one of the major violent type of public anomaly that threatens the peace of a country. nigeria is not devoid of communal violence but is actually one of the countries suffering from communal violence. in benue state of nigeria precisely on the 10th day of thursday 2022, at least 28 people whom were mostly women and children were killed during the communal violence between ezza and effunn which were two rival clans. what led to the communal violence was a rumored supposed defilement of a shrine located in ebonyi state a neigboring state where ezza community is located in while effunn is located in benue practice report 105 state (ezza and effunn communities have a common boundary). aside from these deaths, businesess and houses were also burnt down during the violence. apart from benue state, other states in nigeria also have their share of communal violence some of these states are taraba plateau kaduna and recently lagos where some yorubas were seen fighting and preventing the igbos from voting during the just concluded 2023 presidential elction. to end communal violence, community members needs to understand and appreciate the concept of peace. hence, the need the secondary school students under the yppct project were encouraged to teach the community members within their jurisdiction the need to imbibe and exercise a culture of peaceful dialogues. the clinical legal education programme have therefore in no small measure contributed immensely not only to legal education and access to justice but also to the promotion and sustenance of peace in communities. peaceful communities leads to peaceful state which in turn keeps a country in a state of peace. practice report 106 references david mcquoid-mason and robin palmer, african law clinicians manual (institute for professional legal training, south africa april 2013). f. s. haupt, ‘some aspects regarding the origin, development and present position of the university of pretoria law clinic’ [2006] (39) (2) de jure, 229–243. emil winkler, clinical legal education: a report on the concept of law clinics, 2013, ma (riette) du plessis, ‘forty-five years of clinical legal education in south africa’ [2019] (25) (2) fundamina: a journal of legal history, https://hdl.handle.net/10520/ejc-1c6ee7f249. odinakaonye lagi et.al., campus-based law clinics in criminal justice administration in nigeria. (nulai nigeria 2019). ernest ojukwu, odinakaonye lagi, mahmud yusuf, compendium of campus based law clinics in nigeria. (nulai nigeria 2014). philip f. iya, “fighting africa’s poverty and ignorance through clinical legal education: shared experiences with new initiatives for the 21st century” [2000] journal of clinical legal education, 13-32. nulai nigeria yppct reports. nile university law clinic yppct reports. practice report 135 the silver lining in the black cloud of covid-19 tia ebarb matt1, natasha bellinger2, kim mcdonald3 abstract little did we imagine that the effects of covid-19 would ultimately make us a stronger and more accessible clinic. the sudden halt of providing in-person services clouded the entire university of exeter clinical programme with uncertainty. however, we could not simply stop our clinical provision – we had existing clients that still needed assistance, as well as students who were taking the clinic as a module. furthermore, we wanted to continue servicing the community. to consider converting to a remote service, there are fundamental questions a university clinical programme must address: why does the clinic exist? what are the goals of the clinic and can they still be achieved by a remote service? this paper outlines the process of converting our in-person clinic to a remote service, by detailing steps taken such as developing a remote operating student training manual, establishing a new case triage 1 tia ebarb matt j.d. is a sfhea senior lecturer/director of clinical legal education/director of education university of exeter school of law, solicitor in england and wales, attorney at law in washington state and arizona state, united states 2 natasha bellinger is a barrister, magdalen chambers lecturer/deputy director of clinical legal education university of exeter school of law 3 kim mcdonald is a partner, civil and commercial mediator, gilbert stephen solicitors, llp lecturer/legal director, community law clinic university of exeter school of law practice report 136 system, utilising zoom sessions, and developing a user focused website. it reflects upon the process of finding effective ways of communicating and collaborating with students and clients, while managing and mitigating the potential barriers to technology. both the successes and the challenges taught us more about the human connection and the human experience. ultimately, the lessons learned from a swift shut down to reopening a fully remote clinic made us better organised, better communicators, and more accessible for clients. once we safely return to in-person meetings, the value gained in providing a remote service will remain embedded in our offering, committing us to a hybrid service of in-person and remote meetings to provide a better service to our clients. for the next academic year, our strengthened service enables us to move seamlessly between a fully remote service and our new hybrid model with minimal disruption, should covid-19 continue to cast a dark cloud. introduction a relationship of trust between a lawyer and a client is something that is developed through a series of positive interactions. these interactionns tend to begin with an inperson meeting. through this initial meeting the lawyer establishes a rapport, sets the client at ease, and instils confidence in the client of the lawyer’s ability to assist the client with their legal problem. being in-person for the initial meeting means there is a human connection. the client and the lawyer can read each other’s body language, practice report 137 assess emotions, and respond through a sort of human experience. what happens when the in-person meeting is replaced with a phone call or video on a screen? the dynamics change in such a setting. you can’t hand someone a tissue through the screen or the phone. this report examines the uncertainties faced by the university of exeter’s community law clinic caused by the black cloud of covid-19. it outlines the trials and tribulations of quickly moving from an in-person service to a fully remote service and the unexpected benefits and lessons learned as a result of this challenging time. background the university of exeter law school’s community law clinic offers a free legal advice service in the south west region of england. 150 third year law students, supervised by lecturers/legal practitioners and supported by volunteer legal practitioners, provide aid in areas such as immigration, housing, employment, consumer, benefits, and environmental law. over the last year, the clinic assisted over 200 clients. in february 2020, the clinic was at a point of needing to expand. the clinic had a strong foundation, but demand was far exceeding resource. we needed more staff and a physical presence in the community. we had secured accommodation in a university building in the city centre and were scheduled to have our opening the first week of practice report 138 may 2020. this would allow us to expand our hours and bring in more practitioners to assist. however, late march arrives, the pandemic was peaking, and like the rest of the country, the university went into lockdown. all in-person classes ceased, and campus was closed. moreover, many future funding projects were put on hold, which included the funding for the space we had secured and the hiring of another solicitor and clinic coordinator. we had ongoing cases coupled with national and international students needing to get home. this necessitated an immediate assessment of our current situation and the viability of our service moving forward. our duty of care both for our students and our clients provided us, as a university clinic, with an interesting dynamic. our main priorities at that time were (1) making sure the students could get home and get settled, and (2) making sure that there was not any detriment to the clients due to our service. thankfully, we were in a position where we could continue with our current clients and we were able to wrap up those cases swiftly and effectively. once we dealt with the immediate concerns, we needed to assess whether our inperson service could effectively be converted to a remote service. a main driver for setting up the clinic was to provide a much-needed community service in an area of dire need. the provision of a consistent service was important to us. we began the process by asking ourselves several questions: who are our clients? was there an alternate provider for these individuals? how did these individuals come to us? the clinic had formed several key partnerships with regional organisations such practice report 139 as the judiciary, solicitors’ firms, barristers’ chambers, and advice charities, which enabled us to provide a more comprehensive approach to services in the region. after an assessment, we realised that most of our clients came to us through referrals from these key partnerships. the referring organisations were either over capacity or couldn’t provide legal advice. our service was invaluable to the local community. we also noted that many of our clients had internet access or at least telephone access. initially, we may see them in-person, but after this initial contact, most of our communications were electronic. next, we asked ourselves, if we were to convert to a remote clinic, can we still achieve the same access and same level of assistance? we built strong relationships and good rapport with our clients. we needed to be able to keep that bond and trust with the community. our initial questions focused on the clients, but then we needed to ask ourselves would students still benefit from this changed service? we are a university and needed to evaluate the educational needs of our students. in a remote service, would students still gain the skillset and in the in-depth critical thinking and learning obtained from being part of an in-person clinic? believing more firmly that “[l]earning the law in isolation of the social context in which it operates can be seen as a significant gap in legal education which leaves those emerging into at least the solicitor’s branch of the profession inadequately equipped to perform competently as practising lawyers”4 it became clear that we needed to continue. operating a remote clinic during 4 lawyers and clients: the first meeting (modern law review, vol 49, issue 3, may 1986) practice report 140 a pandemic, when so many firms and chambers also needed to operate remotely, was an opportunity to give our students a social context to their learning experience. next, we set out to determine how a remote clinic would operate. we began with a list of things that we needed: another solicitor, a full-time clinic coordinator, and reliable technology for interviews. the technology must be reliable and accessible for us as supervisors, for our students, and for our clients. one of the key things for our clients’ accessibility is that we needed something that was accessible by video or by phone. after hiring a new solicitor and a coordinator, we turned to our documentation. this needed to be updated with our new way of operating. it should incorporate step-by-step instructions of how our new service operated, how to find us and how to connect through the technology. the student training had to be completely revamped with updating all training manuals and techniques. training to interview on a virtual platform is different than training for an in-person platform. establishing rapport and trust through the phone or video is a whole new skillset. even us supervisors had something to learn. we also knew that if we were going to have clients connecting with us more virtually, then we needed to build a website. a website that was client-focused for clients to come and get practical answers, as well as being able to directly engage with us. we also needed to inform those partners, that usually referred clients to us, of our new service. the referrers needed to know exactly how to refer clients to us and how we would operate so that they could prepare clients for this new type of service. practice report 141 the redesign was the easy step. we then held practice training sessions and practiced with the technology to see how it would function. we created training videos for sessions that we would normally deliver live. we even made a training video tour of our case management system. digitising most of the practical elements of the clinic meant that we could focus on the human connection side in our online client interviewing training we found quite easily that we were able to convert to a remote clinic almost seamlessly and that was something quite unexpected. the conversion the new remote operating clinic has a very streamlined operating system. probably, more streamlined than before going remote. clients come to us through email either directly or through a referral. once we receive that email, the case is triaged by one of our internal solicitors. this triage is used to determine if this is a case suitable for students. it is still just as imperative that we are taking on cases that are not only beneficial for students but also manageable by students. one immediate benefit of running the remote clinic is that we can put more time and consideration into the triaging of cases compared to what we normally would. although it is rare for us to reject a client, when we do, we can refer them out to a more tailored referral due to the ability to take time and research who may be able to assist them. typically, a client would just come into the in-person drop-in clinic without a chance for us to assess the suitability or who might be a good referral for them. practice report 142 after triage, we decide whether that case needs to be scheduled for an interview prior to receiving written legal advice, or it might be that someone is only looking for some information that we can give quite quickly through email. next, we assign students and supervisors, and an appointment is booked on zoom for those seeking legal advice. if it is a case requiring only information by email, the students will begin working on it immediately. after the virtual appointment, the students proceed with preparing our standard client care documentation, any necessary continued client communication, followed by their research, and finally provide a one-off advice letter advising the client of their legal position and the suggested next steps. depending on what those next steps are, we may offer to assist the client further. we continue to monitor client and student feedback to ensure that moving to a remote clinic has still allowed us to maintain the high level of client and student satisfaction. engaging with a remote clinic is quite different than a client being able to just walk into somewhere and talk to someone and for the students in how they explain things or do things in-person. we found that doing everything remotely was not only working just as efficiently, but in fact, enabled us to expand our service despite not being able to move into the city premises. we were indeed still managing to establish that trust and confidence, it is just a bit harder earned. practice report 143 challenges moving to a remote service has been a positive experience, however it has not been without its challenges. managing technological barriers for our clients to ensure they can access the service effectively all while continuing to receive a high standard of service was essential. moreover, a remote service continues to raise questions with regards to whether the students are able to fully develop their skills and gain the necessary experience of client interviewing and advising ordinarily obtained via the invaluable experience of meeting with clients in-person. technology a major hurdle to overcome with a fully remote service is access for both the clients and the students. both need adequate internet provision and equipment to be able to participate in online meetings and corresponding solely by e-mail and other remote communications such as zoom and microsoft teams. some of the issues we have faced as a clinic when attempting to arrange a meeting with clients are inadequate internet speeds, the lack of a device which can connect to the internet, or indeed no internet at all. in our experience these barriers have been particularly difficult to overcome with elderly clients, clients with disabilities affecting their ability to communicate and otherwise vulnerable clients. we needed to overcome these hurdles to ensure we were able to provide the same level of service to every client. practice report 144 it is extremely difficult to remove the barriers to technology for a fully remote service especially in a short timeframe. we used zoom for our client meetings which most of our clients were able to successfully use with or without their cameras on. using this platform meant we had the ability to arrange for clients to call into the meeting using a mobile phone or landline without the need to connect to the internet. clients asking for straightforward advice often asked for advice by e-mail only with no meeting. this meant all communication was by e-mail, which we were happy to provide in cases where this was appropriate. in deciding which cases were appropriate for email communication only, we considered whether it would affect the level of service, the complexity of the issues involved and the type of assistance the client was seeking. this has gone someway to alleviate access issues, but some clients will always prefer an in-person meeting and will not feel comfortable having a meeting in any other form. we were fortunate that all students on the clinic had access to the necessary technology allowing them to easily transition to remote working along with the supervisors. we also always have students working in pairs, so if one loses internet connection or is having issues, the other can take over. we purchased a clinic mobile phone to enable our coordinator to safely make calls to clients and protect her privacy. we once had a client lose internet connection and a supervisor was able to call the client by phone using the country’s 141 option which hides someone’s phone number and put the call on speaker next to the computer so that the students and the client practice report 145 could still hear each other. a remote service means needing to be creative and adaptive. as a clinic we were of course concerned about data protection and internet security with all meetings being on-line and we had to quickly decide the best forum for meetings taking into consideration our duty of confidentiality towards the client and duty of care to the students. we were already obliged to and did follow the university’s procedures and practices. our case management system could already be accessed remotely by the students, but we reviewed and reorganised our files to ensure that both accessibility and confidentiality could be maintained as far as possible. upholding our regulatory duties in such times is paramount. client and student relations we know as practitioners how important it is to build a rapport with a client when you meet with them. this builds trust and confidence in your ability as an adviser and enables the development of a successful professional relationship between client and lawyer. whilst our students are not legal professionals, we always instil in them the need to remain professional. this can be something much harder to achieve in a remote setting where informality can creep in or participants can accidentally speak over one another and there is a risk the human connection can be lost. our students interview in pairs and so we recognised that it is much harder for them to communicate with each other in order to manage the interview. we covered these practice report 146 issues as part of our training prior to re-opening the clinic as a remote service. always having one person to keep that human experience going is crucial. a remote service also throws up problems with being able to read body language and picking up on subtle cues. it is more difficult to react to the client and gauge their emotions when you are not in the same room. again, it is difficult to build rapport and develop trust when you are not in the same room and able to look the client in the eye. the fear for us as supervisors is that the students are not gaining experience at the same level of human connection with the client. video calls go some way to help with better reading a client, but this is not an option for everyone. regular checking in and reframing issues for the client through more frequent email communications enabled students to attempt to gauge where their client was at with a dispute. time often needed to be given to some clients who became upset and students were encouraged to demonstrate empathy with the client’s predicament as well as empathy with the covid-19 situation where this too had had an impact on the client’s wellbeing. in addition to the physical barriers to technology, our experience was that many clients were not confident in using an on-line platform such as zoom and many have struggled to follow the instructions to access meetings. this added an extra layer of stress and anxiety for many clients and an extra issue to worry about in addition to their legal case for which they had come to us for assistance. we ensured that instructions were sent out to clients in good time, we were relaxed and reassuring practice report 147 about any missed or late-starting appointments, and we had our intern on hand at the beginning of meetings in case a client needed help joining an online meeting. we developed and regularly reviewed our instructions to ensure they kept up with any changes made by the provider or the university to accessing zoom calls (such as having to have a registered account) and we did our best to accommodate any alternative means if the technology we were using was not working. a serious worry for the clinic supervisors was and continues to be that students may feel less supported during client meetings and through their research and writing their advice to clients when all contact is remote. the usual practice as detailed above was for supervisors to be in the room when students met with clients meaning students could quickly ask questions of the supervisors and the supervisors could pick up on the body language of the students to ascertain if there were any problems or questions arising. there is the ability on the remote meetings on zoom to enter into a private chat with the students if issues arise but this risks interrupting the student's concentration which can leave them feeling flustered and can affect their confidence during a remote meeting. in addition, students are not having the in-person contact with their peers and supervisors. they may feel less able to bounce ideas off each other and there is the real risk that students may start to feel isolated working remotely. we regularly check in with our students and encourage them to virtually meet with their group and us as supervisors to discuss cases. we give open and constructive feedback practice report 148 to them, whilst praising them for their efforts under the difficult circumstances which they have had to work. another problem the clinic faces is that we cannot see who is in the room with the client and often a client does not turn on their video function during a zoom. this means there is no way of knowing who is present with the client which raises the question of who is listening to the meeting and the advisers cannot tell if there is any issue of undue influence or duress. although the clinic does not record meetings this does of course not mean that clients are not recording the meeting on a separate device, which we have no control over. this does raise the question of liability on what is said. however, we already mitigate this through our established practice of the students only providing advice in writing after the meeting as this is also a challenge in an in-person meeting should a client later say they were given incorrect advice. it is nonetheless still a point that needs to be considered together with the potential impact this has on our duty of care to our students and our clients. together with the issue of who may be present with the client there is also the issue of the student’s environment when they are taking part in a remote meeting. students may be in shared houses or be living with younger siblings at home which may not be conducive to providing an ideal environment allowing the student to concentrate on the meeting. we emphasise to our students that it is important they take client meetings in rooms where they cannot be overheard to ensure confidentiality is maintained. practice report 149 student learning and development as supervisors and university lecturers a big question for us is whether running a fully remote clinic provides students with the best opportunity to learn. we were concerned about whether students would get the same experience that in-person interactions with clients provide and whether their development of client interviewing skills would be limited. coupled with this, the limited ways to communicate with their peers and supervisors has changed the way students are taught. all this raises the question as to whether the students are feeling supported and confident in their work and has an impact on us building rapport with our students, which is more of a challenge. we offer students drop-in zoom meetings to discuss any concerns or issues and we seek to regularly check in with them. it is however much harder to gauge and obtain engagement remotely but through regular training sessions and the provision of a variety of opportunities to engage, we hope this support mirrors an in-person meeting with us. the need for a human experience and connection is vital in a student to teacher relationship, as well. we have found that many students are more open about what they are struggling with over email than in-person, but we recognise each student is different and that some may struggle to approach us in a remote setting. practice report 150 benefits despite the numerous challenges we faced in moving to a fully remote service, there are many benefits, some of which are quite surprising and many that we would seek to carry forward in a hybrid service. accessibility now that the clinic offers a remote service, we have been able to reach clients that would not have attended an in-person meeting. this could be for a variety of reasons including anxiety and physical practicalities. remote working results in less travel by the clients, students and supervisors reducing the carbon footprint of the clinic. no travel saves time for all parties and eliminates the risk of clients being late to appointments or not showing altogether due to traffic or other travel issues. student learning and flexibility on-line meetings allow for flexibility. the clinic can offer a range of times and dates compared to the former more rigid appointment times. additonally, remote communication with students provides for more flexibility and greater availability of supervisors. both new arrangements make us more accessible to students to support them and encourage their development, while meeting clients’ needs. practice report 151 when you develop such things as social presence and supportive discourse, research has shown that on-line learning produces just as good results as in-person learning.5 we believe we have done this with our frequent communication and increased availability. turning most of our training into videos allows students to revisit and refresh, as needed. however, this presence and discourse does not necessarily consider the developing of the less conventional skill of interviewing and dealing with clients. this is a skill that needs to be nurtured overtime and an in-person meeting is always going to be needed to perfect it. creating our online clinic community enables us to provide for the flexibility of this service and the changing needs of our students, as well, as our clients. in many ways, it allows us to keep trying to get it right. now more than ever, it is important that we maintain our standard reflective piece as a form of assessment for our students to maintain that supportive discourse and presence. in brayne, duncan and grimes, learning from experience “occurs not in the doing but in the reflection and conceptualisation that takes place during and after the event.”6 this reflection impacts the way students learn from what they are doing and ultimately, we gain the critical thinkers we set out to make. the lack of in-person time cannot be compensated by reflection only, but the reflection can give students the opportunity to understand the needs and differences in the approaches. once they can 5 swan, k., garrison, d. r., & richardson, j. c. (2009). a constructivist approach to online learning: the community of inquiry framework. in c. r. payne (ed.), information technology and constructivism in higher education: progressive learning frameworks. hershey, pa: igi global, 43–57. 6 brayne, h., duncan, n. &. grimes, r. (1998) clinical legal education: active learning in your law school (london, blackstone press ltd). https://www.researchgate.net/publication/285177901_a_constructivist_approach_to_online_learning_the_community_of_inquiry_framework https://www.researchgate.net/publication/285177901_a_constructivist_approach_to_online_learning_the_community_of_inquiry_framework practice report 152 go back to in-person meetings, they will be able to take the lessons of remote operating with them to make them even better lawyers. another extremely important part of the clinic is ensuring the safety of students and applying a strict risk assessment. meeting clients on-line and not in-person does significantly reduce the risk of potential harm to students. in addition, if the clinic experiences a difficult client, the meeting can easily be terminated by the supervisor or student, which is not so simple at an in-person meeting. adaptability now that the clinic has successfully moved to remote working, if another full lock down is imposed due to covid-19 or another problem arises where in-person meetings are not possible, the clinic is fully prepared to continue to provide a high level of service with no interruption ensuring the continuation and longevity of the clinic. for our students, we realised that creating independent learners at the same time as critical thinkers is a challenge. we continue to challenge the students, with minimal guidance from ourselves, to find the information that they need. as we tell them, “be comfortable with the unexpected”.7 we can guide them to feel comfortable with the challenge of their newly required independence. they are gaining the valued skill of being capable to adapt quickly. 7 balachandra, l. et al., ‘improvisation and negotiation: expecting the unexpected’ (2005) negotiation journal 415 practice report 153 going forward we discussed the challenges and benefits of a clinic offering a fully remote service compared to an in-person service. going forward we now can offer both an in-person and a remote service to cover all needs and practicalities. such a hybrid service will allow the clinic to overcome the hurdles and barriers to technology we have experienced with a solely remote clinic and take advantage of the benefits of both a remote and in-person service. the new hybrid service will benefit the community since it offers greater accessibility to our services and should the necessity arise to go fully remote, the clinic is fully prepared to continue to seamlessly provide, without interruption, a high level of service. this new way of working will also enhance the university of exeter school of law clinic module and provide greater opportunity for students to be able to develop their practical skills using different forums and technologies and broaden their understanding and experience. they now have the skills of operating a remote clinic to take forward with them to firms and chambers. these skills will no doubt be desirable for future employers in the legal sector. conclusion remote working was thrust upon us as a clinic. the experience showed us how vitally important the human connection is between client and lawyer and teacher and practice report 154 student. although, we have navigated ways to attempt to alleviate the loss of the inperson human connection, through technology and frequent communication, there is a real risk that a fully remote service will never be able to replicate the level of human connection as an in-person service. the uncertain effects that the dark cloud of covid-19 cast on our clinic ultimately made us a stronger and more accessible clinic. our shared human experience of the pandemic meant we all needed to find ways to adapt. for the clinic, our silver lining was recognising our ability to adapt, reflect, and take forward the newly presented opportunities. ultimately, we remembered, virtually or in-person, we all want to be heard and to have a chance to tell our story. that is the real human connection. why not an international journal of clinical legal education? 7 why not an international journal of clinical legal education? neil gold1 introduction jerome frank may have suggested the term clinical legal education (cle) first when he asked “why not a clinical lawyer school?”2; but, it was not until the new york city based council on legal education for professional responsibility (clepr), funded by the ford foundation, took the pre-eminently active role in promoting and supporting law school-based experimentation in the 1970s and 1980s that cle truly had an opportunity to develop. over the past thirty plus years cle has become more and more central to legal education, especially in the united states; innovations elsewhere have been fewer, more modest, and slower to develop, but of significance to the shifting culture of law learning, wherever they have taken place. the inception of the journal3 marks an important milestone in the continuing development of cle; for with this volume, we formally recognise that cle is a vitally important and diverse phenomenon with a global reach. clinical legal education focuses on students’ learning about the practice of law and the workings of the legal systems: the how’s, what’s and why’s of them.4 it’s a complex and demanding educational mode that challenges students, with the support and advice of their teachers, to take decisions and pursue specified actions in client representation, with the agreement of a wellcounselled client, whether real or simulated.5 while cle is hardly a revolutionary project, until relatively recently, there were few legal educators or researchers interested in it or its goals and aspirations. most lay people would expect that lawyers learn(ed) how to practise law through a combination of education, training, and reflection upon their experience, performing a legal role; 1 neil gold, professor of law and vice-president, academic, university of windsor, canada, member editorial board, international journal of clinical legal education. 2 jerome frank, “why not a clinical-lawyer school?” 81 u.pa.l.rev. 907 (1933). 3 among the journals concerned with legal education, until now only the clinical law review, published in the united states focuses on cle. the journal of legal education (us), the legal education review (australia), the journal of professional legal education (australia), the law teacher (uk) and the international journal of the legal profession (uk) all publish material on clinical legal education, and related subjects. 4 gary bellow, “on teaching teachers: some preliminary reflections on clinical education as methodology”, clinical education for the law student 375 (1973). 5 the role adopted need not be the lawyer’s, though that is the most frequent. 8 journal of clinical legal education november 2000 but, virtually everywhere, whether in apprenticeship systems or programmes of practical training, at least one of those elements was and frequently is missing. initially, common law lawyers learned their craft from one another, through various forms of apprenticeship, frequently supported by reading, studying and learning law from books, principals or masters and, in some cases, informal and formal lectures or tutorials. the inns of court were prominent in the development of a learned profession in england and wales and supplemented the on the job learning of pupil barristers. the common law, developed case by case without the benefit of previously determined general principles, was not thought to be the stuff of intellectual inquiry, though ecclesiastical and civil law were; university legal education in the common law in england and wales is hence a modern, nineteenth century invention. when it did develop, it did not focus on legal practice in behavioural or systemic terms, but rather on an exposition of the law in its assigned fields. in its early days, the study of lawyers’ professional work was largely procedural and frequently mechanical and technical in overall approach. american legal education had given up the apprenticeship slowly but steadily, and in its place grew, year for year of apprenticeship experience6, academic law programs in the universities, of which harvard’s is the most well known progenitor.7 christopher columbus langdell, its first dean, sought to make law a respectable science alongside the other disciplines of the nineteenth century academy and took law, predictably, on a largely analytical positivist path.8 his view of the law library, with its shelves of reported cases, as a laboratory, influenced legal education in the united states, then in canada and later in other parts of the commonwealth. more recently the case method has been imported into argentina and additional places in latin america. in langdell’s home country, the case method survived nearly a century with few changes. real structural change in the modes of legal education depended on the late twentieth century development of clinical methodologies of education.9 through langdell’s case method rationes decidendarum were distilled from the opinions of judges and the ability to extract and rationalise rules of law became the core skills in american legal education. little attention was paid even to systematic training in advocacy, though the familiar moot court, and in some locales, mock trial competitions did offer some opportunities for skills learning. however, the skill sets required for interviewing, counselling/advising, negotiation, mediation, adjudication, writing, drafting, planning, problem solving, trial and appellate advocacy, and practice management have been taught directly and deliberately only since the inception of cle. the so-called, much used and much maligned, “socratic method” employed in american 6 whereas live-client clinical programs are controlled by the law schools, sometimes in partnership with others, externships now provide american law students the opportunity to work in a legal setting not controlled by the law school. law offices, government offices, courts and tribunals are among the many settings selected for such experiences. externs are supervised by trained staff in the work setting and participate in a law school coordinated program. 7 robert bocking stevens, law school: legal education in america from the 1850s to the 1980s, university of north carolina press, chapel hill 1983. 8 c.c. langdell, selection of cases on the law of contracts, little brown and company, boston 1871 it is virtually unheard of to study law in north america without a casebook. 9 there are perhaps experiential learning modes that would not necessarily be considered “clinical”. problembased learning (pbl), employed at limburg university in maastricht, the netherlands, may not always require the student to adopt a professional role, but always entails some experiential, problem solving approach. it would be overly technical to exclude pbl from among the methods in the clinicians’ repertoire. see eg suzanne kurtz, michael wylie and neil gold, “problem-based learning: an alternative approach to legal education”, 13 dalhousie law journal 797 (1990). why not an international journal of clinical legal education? 9 law schools and popularised by the paper chase10 was the primary teaching methodology to support the processes of case dissection and rule extraction and rationalisation. the langdell legacy thus left an agenda for law learning that was focussed on abstract, rational and conceptual analyses. these examinations were frequently disconnected from any concern for the impact of the decision on either the individuals involved or society as a whole. nor oftentimes were enquiries focussed on critical, theoretical, philosophical, ethical or operational considerations. as a result, the case method in its traditional langdellian form has been criticised widely by critics, including, clinicians, realists, legal philosophers, feminists, humanists, critical theorists and practitioners.11 the provision of a compendium of critiques would be possible; yet the method has continued with a strong following. the university teaching of the common law in england and wales began in the eighteenth century, some six hundred years after it had been born, with the appointment of blackstone as oxford’s first vinerian professor of law.12 insofar as blackstone was interested in concretising and clarifying the law in positivist ways, his core mission was not entirely different from langdell’s, though his aim to state the common law was a much more wide-ranging project than langdell’s legal science, which was primarily methodological (though it was pervasively important to the next century of legal study and its progeny, the modern american lawyer and much of legal scholarship). meanwhile, as academic legal study developed in the united states, apprenticeship continued as the main method of learning law in england and the british colonies (more recently the commonwealth) abetted by various forms of formal tutelage, well into the latter part of the twentieth century. blackstone figured prominently on both sides of the atlantic, influencing law practice, legal education and scholarship in myriad and fundamental ways. his commentaries13 became the standard reference work for lawyers on the new world’s frontiers. his expository approach became the central technique of legal authors across the common law world from his time onward: the statement of what is sometimes called “black letter” law. neither langdell nor blackstone expressed a concern for lawyers’ work as a subject of study; and as their influence was substantial, it was to be some time before anyone with authority suggested that the practice of law was worthy of inquiry and teaching, as such. in the united states, where the apprenticeship was abandoned intentionally in favour of mandatory attendance at a law school, when critics suggested that legal education needed to be more practice-oriented, there was little enthusiasm for either restoring apprenticeships or for turning the law school into a place where legal practice was learned, whether through experience or otherwise. in england and wales, and the commonwealth, various forms of apprenticeship 10 osborne, john j., paper chase, houghton mifflin, boston 1971. the film version, produced in 1973, portrays “...the brilliant professor kingsfield… whose classroom’s an intellectual battlefield filled with terrified students.” (review at http://mrshowbiz.go.com/reviews/mo...ews/movies/thep aperchase_1973.html ) the film was followed by a television series in 1978, making north americans aware of an extreme example of the case method pursued through the socratic dialogue 11 for example, jenny morgan, “the socratic method: silencing co-operation”, 1 legal education review 151(1989). 12 the biographical history of sir william blackstone by a gentleman of lincoln’s inn, rothman reprints, hackensack nj, 1971 at 19: s.f.c. milsom, the nature of blackstone’s achievement, selden society, london, 1981; and most importantly, william twining, blackstone’s tower: the english law school, stevens & sons, london, 1994. 13 w. blackstone, commentaries on the laws of england (1st ed., 1765–69). 10 journal of clinical legal education november 2000 have continued to this day, perhaps curbing the urges of those who may have otherwise surfaced a desire for more structured learning of lawyers’ work. curiously, the move from learning exclusively from experience to learning from books, seemed largely to occur without any significant effort to bridge the two. it may well be that lawyers were unable to conceive of their work in performance terms, referring only to the application of laws to human activity, somehow believing that a person could not learn how to influence processes of the legal system so that it would operate for client or societal benefit. the belief that one either has the talent and skill to perform effectively, or does not, runs deep and a resistance to the direct teaching of skills was in some places founded on this belief. in most of the commonwealth a law degree is followed by an apprenticeship that is supplemented by residential professional legal training of a variety of types. these programs vary in length from a few weeks to two years and focus on the practice and procedures of the various transactions lawyers undertake. in some places intending practitioners on these courses are taught a full regimen of legal skills through a variety of didactic, experiential and other methods. there are also jurisdictions that have replaced the apprenticeship with a programme of study following a law degree. the past decade and a half in particular has seen rapid change to the curriculum contents and methodologies employed on these practice courses. some are distinctly clinical in nature, sharing with law school-based clinical programs the desire to inculcate learning strategies and methods in a reflective practitioner model.14 others treat the contents of legal work as a series of steps and tasks surrounded by procedural law and supported by substantive law, conducted in a somewhat mechanical way. still others extend the law school experience into the study of procedural and as yet unstudied substantive law. the development, in some countries, of a corps of professional clinical teachers either within practice courses or at the universities has led to their joining in the scholarly tradition of cle begun in the united states.15 with the exception of the major work at the university of wisconsin by stuart gullickson and his colleagues and the occasional short “bridge-the-gap” course, legal practice courses did not develop in the united states.16 little concrete or long lasting took shape following the completion of this project. the profession, through the american bar association and local bar associations, focussed its energies on the accreditation of law schools and on the general examination of aspirants, with the support of the conference of state bar examiners. the profession leaves to the candidates17 the task of readying themselves for the admission examinations, which test substantive and procedural law learning, and to a much lesser extent legal practice abilities or know how. the american bar association regulates the contents of and infrastructure for legal education across the country, through a periodic review process involving members of the judiciary, the practising profession and the academy. the absence of bar led initiatives in mandated practice preparation 14 see eg richard neumann jr., donald schon, the reflective practitioner, and the comparative failures of legal education, 6 jo. leg. ed. 401 (2000); donald a schon, the reflective practitioner: how professionals think in action, basic books, new york (1983) and donald a schon, educating the reflective practitioner: toward a new design for teaching and learning in the professions, jossey-bass, san francisco, (1989, 1990) 15 the recently formed global alliance for justice education (gaje) held its first conference and teaching workshop in trivandrum, india, in december 1999. formed by a group of mostly clinical teachers from around the world, gaje seeks to extend the clinical mission for development everywhere. 16 a model curriculum for bridge-the-gap programmes, american law institute – american bar association committee on continuing professional education, philadelphia, 1988. 17 there are many commercial providers who offer instruction in how to succeed in the bar examinations. why not an international journal of clinical legal education? 11 created a strong impetus for support of cle. oddly, the absence of a vital professional presence in practice preparation led the law schools to fill the gap and to do so with a commitment to social justice, client service, scholarly learning and skilful practice. the civil law tradition was different. the civil law’s structure and organisation now mostly based on codes that derived from the great work of napoleon’s era, depended on general principles elaborately developed from roman times, and written about by great scholars and commentators. the general view seems to have been that mastery of the civil law requires years of study and learning, and therefore there has been and still is little room in most jurisdictions for the practical study of legal work. one senses that the practice of civilian law, as distinguished from the law itself which is grand, theoretical and conceptual, is seen as demanding, technical work. in the civilian tradition of practice preparation the phase of learning to practice law comes while at work, though a system of stagiaire is not completely unknown; in the scheme of things very little time or effort has been placed on helping juniors learn their craft in an orderly, systematic, organised or regulated way, whether through traditional apprenticeships or otherwise. readers may now be thinking that cle may appear to have its historical roots in apprenticeship. this is only partially the case; the idea that experience with mentoring is a sound teacher is at the basis of apprenticeship; but cle goes much farther and rejects the notion that “practice makes perfect”, preferring the adage that only “perfect practice makes perfect”. anyone who knows the apprenticeship system, whether by experience or description, can testify to its myriad weaknesses. legal practitioners in their practices are preoccupied with service and their work, not education, training and mentoring. oddly, legal practitioners do not seem to have accepted the notion that supporting the learning of others is in the best interests of their particular practices, perceiving mentoring as oriented to the interests of the junior or the public. the law office, courthouse or agency have not been organised to accommodate learning and teaching as core functions. unlike hospitals, where research, service and education and training converge, the law office is a place of professional practice with its own ideals and goals. and so, while jerome frank the realist, cared deeply about what lawyers and judges do, and rightly believed one could not learn to be any kind of professional without adopting the professional’s role and working through its complexities, he probably did not envision cle as it has evolved, any more than he would have advocated the reinstituting of the old apprenticeship system. thus, cle’s real modern source is the work of clepr, and in the beginning, the many, mostly american, law schools that were stimulated to develop the wide variety of clinical legal education models, now prevalent there and growing worldwide. it is ironic that the first common law jurisdiction to abandon experiential learning through the abandonment of apprenticeship should have become its leader in educating profoundly, and training systematically, for legal work; we have benefited from the death of apprenticeship in american legal education. clepr’s mandate for professional responsibility had two important dimensions that were usually not present in apprenticeship models and which also tended to be absent, in large measure, from prevalent modes of legal education, including the case method.18 there is a third element in the clepr mandate, professional conduct, which has been consistently referred to as an important component within the apprenticeship model, but it has not always been well served there. the first 18 david r. barnhizer, “the clinical method of legal instruction: its theory and implementation,” 30 j.leg.ed. 67 (1979). 12 journal of clinical legal education november 2000 dimension is comprised of the many elements of the professional obligation to provide access to justice and legal services to those unable adequately to obtain them, including the goal of understanding legal work as a complex of human, social, intellectual, and historical, informative thoughts, feelings, actions and aspirations aimed at a better, just society under law: know how with soul, conscience and dedication to the service of others. for some, cle provided an opportunity to serve those in need and to remedy societal defects, with learning as a crucial by-product. second is a commitment to learning through the variety of ways and means that are most likely to help the student learn from and through reflection on experience in a manner that will serve professional and personal self-directed learning for life. the clinical agenda is rich, deep, varied and constantly evolving. its primary contents globally encompass the legal, social and justice milieu; its methodologies, depending on experience in some form, proceed from the individual learner through shared and reflective enquiry. third, cle requires the student to examine carefully the requirements of professional responsibility, including codes of conduct, as a direct element of the learning process and require her or him to test the viability of professional norms in the actual and personally experienced service of clients and justice. in many places cle has been developed in large part because of the desire among students for a meaningful, social justice oriented education that permits them to grapple with real, or realistic problems, in an effort to achieve a fair and just result and in the hope that the fabric for a democratic and just society will be fortified. the establishment of this journal is a continuing testimony to the ardour of such students, for without the work of tessa green and cath sylvester this endeavour would surely never have been undertaken. cle is thus not a single method or approach to learning lawyering. it knows no jurisdictional boundaries, nor is it culturally limited in its application. it may be adapted to need, environment, context, time and purpose as a complement or supplement to variety of formats for legal education. it can also stand on its own as a powerful methodology for learning. an international journal promotes the study of and reflection on cle in a comparative or cross-jurisdictional way. indeed, why not the international journal of clinical legal education? the time has come. the journal’s founders foresee articles, discussion and news about the expanding area of cle. and it will also provide a forum for the exchange of ideas among and between clinicians worldwide. so, in this first number of our new journal there are pieces from africa, australia and the united states. these papers draw on the themes of clinical scholarship referred to above. philip iya discusses african efforts to provide both learning opportunities and service for societal reform. he paints a picture of dire need and great opportunity, as well as of tremendous efforts to meet immense challenge. judith dickson explores the connection between cle’s public service tradition and the requirements of professionalism in australia today. roy stuckey examines educational quality questions across a range of learning outcomes to which cle is pledged. each of these clinicians shows the commitment, courage and perseverance that has typified the leadership of the movement: their scholarship is born of a deep and abiding desire to ensure that lawyers and law serve humanity, and not the other way around. reviewed article 112 measuring the impact of clinic participation on law graduates: a small case study lawrence donnelly, assistant professor, university of galway , ireland 1 abstract in an academic environment where there is an increasing emphasis on impact, it is rather surprising that there is a paucity of studies on the effect (if any) of participation in a clinical legal education programme on the career trajectory of law graduates. in this article, after considering the methodologies behind and outcomes of two such studies conducted in north america, the author describes how he devised a survey, which was sent to a group of law students at the university of galway’s externshipbased clinical programme it its pilot year, and analyses the responses. in short, this study – like the other two – suggests that clinic participation has a marked impact on lawyers in terms of enhancing practical legal skills, but a less significant impact when it comes to inspiring graduates to embark upon public interest-oriented legal careers or undertake pro bono work. the article acknowledges that there are myriad factors influencing these choices and that it is foolish to extrapolate excessively from these studies. it concludes by arguing that, no matter these “failings” with respect to the social justice imperative that helps define clinical legal education, the capacity of 1 b.a., j.d. attorney at law (massachusetts). assistant professor and director of clinical legal education, school of law, university of galway. readers with questions or feedback are encouraged to contact the author at larry.donnelly@universityofgalway.ie. mailto:larry.donnelly@universityofgalway.ie reviewed article 113 programmes to equip future lawyers with key skills and to instil in them, at the very least, a cognisance of the shortcomings of the law and legal system means that our work is still eminently worthwhile. i. introduction: clinic, then what? “i was a bit surprised to discover how humane this profession is. on a visceral level, you know that clients are probably the most necessary element of any kind of legal practice. that did not prevent me from being surprised at how intimate the discussions between a solicitor/legal advocate and a client can be. up until this placement, i had never realised how important being heard was…i imagined that interactions between solicitors and clients would more closely resemble a problem exam question. this placement also gave me a realistic expectation of what a career in the legal profession with an emphasis on human rights may look like, as well as helping me to shift my expectations for my potential career trajectory. through this experience i was able to learn more about the housing crisis and get an on-the-ground glimpse at the people directly affected by it and better understand the failings of the legal system when it comes to providing for people.”2 2 student reflective essay, academic year 2021-2022 (on file with author). reviewed article 114 it is arguably this type of student feedback that makes those of us involved in the enterprise of clinical legal education tick. especially in programmes where the emphasis is on human rights, social justice and the public interest, our students, like the one quoted above, are exposed to the realities of law practice and of working within the legal system that simply cannot be captured in a seminar room or lecture hall. albeit in a more advanced context than the externship/placement-based (the two descriptors are used interchangeably from here) clinical programme in my own law school, stephen wizner encapsulates the essence of this animating impulse for clinical legal education: students can engage in faculty-supervised law practice in a setting where they are called upon to achieve excellence in practice and to reflect upon the nature of that practice and its relationship to law as taught in the classroom and studied in the library. it is a method of teaching law students to represent clients effectively in the legal system, and at the same time to develop a critical view of that system. law students in the clinic learn that legal doctrine, rules, and procedure; legal theory; the planning and execution of legal representation of clients; ethical considerations; and social, economic and political implications of legal advocacy, are all fundamentally interrelated.3 3 stephen wizner, “the law school clinic: legal education in the interests of justice” 70 fordham law review 1929, 1930 (2001). reviewed article 115 fortunately, more than 15 years on from the foundation of the clinical legal education programme in the school of law at the university of galway, the required periodic emails and summative essays from students who undertake placements for academic credit indicate that our students have a cognisance of what wizner adverts to, as well as of the dissonance between the theory they learn and what “real world law” is ultimately about. a straightforward question has struck me over the years as i have read hundreds of revealing student submissions, often while nodding or smiling ruefully at what they have encountered to their delight or dismay in the clinical experience: what, then, do they do? stated another way, what impact will their participation in our humble legal clinic have on their career trajectory and professional ethos down the road? of course, impact is something that all academics are being forced to examine across virtually all aspects of our activity and a central component of any assessment of our labours.4 naturally, when students are fresh from their externships – usually their first exposure to law practice – and memories are unsullied in their minds, they will say that the impact of the clinic has been and will be significant. a cynic might assert it is all well and good, particularly when they understand completely what the goals of the clinical programme are and are seeking the best mark possible, to mouth platitudes about what it has meant to them. but still, the question remains: what 4 see generally, kylie smith, ellie crookes and patrick crookes, “measuring research ‘impact’ for academic promotion: issues from the literature” 35 journal of higher education policy and management 410 (2013). reviewed article 116 difference does clinic make? and a specific sub-query is there for those students emerging from clinics in the human rights/social justice/public interest space: are they engendering more “lawyers for others” – to borrow a mantra from jesuit education? to this end, after undertaking some research to see what, if anything, had been done previously, i decided to survey the first group of participants in the clinical programme in the law school at the university of galway from academic year 20062007. notwithstanding the delaying and other effects of the pandemic, 9 of the 14 members of that cohort eventually responded. in the main, their responses to the questions posed in the short questionnaire were admirably honest, detailed and considered. they ranged from gratifying to underwhelming to downright disappointing. part two of this article will briefly summarise the literature on previous endeavours to measure the impact of clinical participation; part three will outline the methodology behind and outcomes of my modest survey; part four will ponder “the good, the bad and the ugly” of the mostly unflinching answers that were elicited; and finally, the article will close with a play on a question that inspired the survey and this article: what, then, will we do? reviewed article 117 ii. past surveys of clinical graduates the american authors of an article considering the findings of a national, longitudinal survey – “after the jd”5 – aimed at early-career attorneys in the united states, who had been sworn in as members of the bar in the previous decade, make an important distinction at the outset between what they envisage as the “skills and civic dimensions of lawyer training.”6 the first relates to the nuts and bolts of practising law; the latter is concerned with professional identity and ethics. both lie at the heart of clinical legal education.7 but it is the analysis of the relevant portions of “after the jd” and the findings of another, narrower survey with respect to the second, civic dimension that this article and my own survey are focused on. citing what they call an evidence gap, the authors note that, despite roughly 50% of students at law schools in the us being involved in a range of clinical activities, from “live client” to externship, there is a paucity of research “to reveal, explain or otherwise inform our understanding of the relationship between clinical legal education and the practical and professional development of law students.” 8 accordingly, the first of its kind “after the jd” opinion poll, and what they were able to distil therefrom, was a badly needed, long overdue resource. on the skills side, a 5 ronit dinovitzer, bryant garth, richard sander, joyce sterling and gita wilder, after the jd: first results of a national study of legal careers (the nalp foundation for law career research and education and the american bar foundation, 2004). 6 rebecca sandefur and jeffrey selbin, “the clinic effect” 16 clinical law review 57, 57 (2009). 7 margaret martin barry, jon dubin and peter joy, “clinical legal education for this millennium: the third wave” 7 clinical law review 1, 5-32 (2000). 8 rebecca sandefur and jeffrey selbin, “the clinic effect” 16 clinical law review 57, 78-79 (2009). reviewed article 118 majority of those surveyed in it identified clinical training as one of the most useful elements of the formal law school curriculum for making the transition to early work assignments as an attorney.9 this is not surprising. as clinical legal education has expanded even to jurisdictions and law schools that were late and somewhat reluctant converts, a big incentive to buy into it was the expectation that clinics would be a valuable complement to pre-existing skills modules.10 it is undeniably disappointing, though, from a clinicians’ perspective, that the authors’ detailed study and analysis of “after the jd” – utilising myriad control factors to account for some of the vagaries of the survey, the limited pool of respondents and other inconsistencies – found scant evidence of a relationship between clinical training experiences and new lawyers’ civic participation or pro bono service.11 they also “found no consistent relationship between clinical training experiences and new lawyers’ active participation in community, charitable, bar-related and political advocacy groups.”12 they did, however, “find a strong relationship between clinical training experiences and public service employment. but this relationship held only for new lawyers who reported they had entered the profession for what might be 9 ibid at 81-89. 10 see generally, richard grimes, “legal skills and clinical legal education” [2005] 3 web journal of current legal issues available at < http://www.bailii.org/uk/other/journals/webjcli/1995/issue3/resear2.html> last visited 16 june 2022. 11 rebecca sandefur and jeffrey selbin, “the clinic effect” 16 clinical law review 57, 57 (2009). the authors did not have an easy task of extrapolating findings from the “limited” data from and often imprecise, indirect questions in the “after the jd” survey. drilling down into exactly how they did so would distract unduly from the focus of this article and lies far outside its author’s area of competence. the authors of “the clinic effect” recommend strongly further research and “hope to encourage more in-depth and sustained inquiry into the clinic effort.” ibid at 102-107. 12 ibid at 101. http://www.bailii.org/uk/other/journals/webjcli/1995/issue3/resear2.html reviewed article 119 termed ‘civic’ reasons: a wish to help individuals as a lawyer or to change or improve society.”13 some crucial observations about the clinics themselves, market forces, economic realities and a dearth of public service law jobs are made: “clinical training’s impact…is mediated by the nature of the clinic experience itself, the context of the overall law school experience and forces external to legal education that powerfully shape lawyers’ attitudes and behaviour.”14 nonetheless, many of us believe passionately that clinical legal education has the unique capacity to be a change agent and aren’t afraid to say it.15 for us, then, these are, to put it euphemistically, mixed results. a more focused survey was undertaken of graduates of the university of saskatchewan college of law in saskatoon, canada by professor sarah buhler and her research assistant, janelle anderson, in 2012.16 from a pool of 106 potential students, they wound up with 58 total respondents, 23 males and 35 women.17 the vast majority were under 40 and they had embarked upon a variety of predominantly legal or law-related career paths.18 the clinical programme at the university – a “not 13 ibid at 101. 14 ibid at 105. 15 lucie white, “the transformative potential of clinical legal education” 35 osgoode hall law journal 603, 607 (1997); lawrence donnelly, clinical legal education in ireland: progress and potential (free legal advice centres/public interest law alliance, 2015) 46. 16 janelle anderson, “clinical legal education: perspectives from former clinical law students” 37 manitoba law journal 427, 428-429 (2013); see generally, sarah buhler, “’i am not a caped crusader: clinical legal education and professional identity formation” 49 university of british columbia law review 105 (2016). 17 janelle anderson, “clinical legal education: perspectives from former clinical law students” 37 manitoba law journal 427, 429-430 (2013). 18 ibid at 430. reviewed article 120 for-profit community legal clinic with a mandate to serve low-income clients that are unable to afford legal services and do not otherwise qualify for legal assistance” – has a strong “social justice orientation” and unapologetically teaches students to “challenge the status quo.”19 indeed, 63% of the graduates listed an interest in social justice as their primary motivation for attending law school; this was easily the number one factor of eight that they could choose from.20 and their qualitative feedback consistently illustrated that they were moved by the plight of many clients of the clinic and felt a duty to use their own privileged positions to ameliorate the clients’ typically unenviable situations.21 in addition to questions about the age and reason for attending law school, survey participants were asked about their motivations for enrolling in the clinic, the nature of their current employment, their extent of their involvement in pro bono work, as well as more open-ended questions about the overarching impact of saskatchewan’s clinical programme on them as persons and professionals.22 there were some very interesting responses. more than 80% opted for the clinic because they felt it would it enhance their legal skills and more than 2/3 cited their own orientation toward advancing social justice and the public interest.23 more than 60% were employed as practicing lawyers and less than 20% were working in the public sector.24 rather 19 ibid at 430-431. 20 ibid at appendix. 21 ibid at 433-437. 22 ibid at appendix. 23 ibid at appendix. 24 ibid at appendix. reviewed article 121 discordantly, however, in light of their responses to other questions, more than half either never or rarely undertook pro bono work and just 1/4 could readily be defined as active in the area.25 as for impact-related questions, those surveyed generally concurred that their clinical experiences equipped them with legal skills, set them apart from other law graduates and inculcated a cognisance that the “practice of law is related to social justice.”26 iii. the galway survey it was the aforementioned emphasis in academia on impact – together with a paucity of similar surveys in europe and, perhaps above all, a genuine curiosity – that led me to read about “after the jd” and what had been done in saskatchewan and to then devise my own survey in 2019. i started the clinical legal education programme at the school of law in the university of galway in 2006 and decided that an ideal and manageable group to send a questionnaire to would be the pilot class from academic year 2006-2007. our clinical programme in galway, like others at irish law schools, is modest when compared to the “rolls royce” models of clinical legal education in operation elsewhere.27 at the university of galway, final year undergraduate law students undertake part-time, optional placements/externships for which they receive 25 ibid at appendix. 26 ibid at appendix. 27 see generally lawrence donnelly, “irish clinical legal education ab initio: challenges and opportunities” (2008) 13 international journal of clinical legal education 56; lawrence donnelly, clinical legal education in ireland: progress and potential (free legal advice centres/public interest law alliance, 2015). reviewed article 122 academic credit and are evaluated by means of participation in seminars, a reflective essay, feedback from supervisors and, in some instances, non-privileged work product.28 the programme emphasises placements in the social justice/public interest sphere, but there are opportunities available in many areas. in recent years – regrettably, speaking frankly – there has been a marked decline in student interest in placements with non-governmental organisations or community law centres, with placements in commercial law firms being in far greater demand.29 while the amount of students taking this clinical placement module rose to the mid50s prior to dipping to around 30 during the pandemic, 14 brave souls decided to take the plunge and see for themselves what clinical legal education was like back in 2007. they were all excellent, high-achieving students. because they were small in number and had been pursuing careers for more than a decade, i viewed them as the optimal cohort. having used the internet – primarily linkedin – to find them, 9 ultimately replied. given that buhler and anderson heard back from roughly 55% of those they sought to contact, this seemed a decent rate of response.30 28 lawrence donnelly, “irish clinical legal education ab initio: challenges and opportunities” (2008) 13 international journal of clinical legal education 56, 61-63. 29 this is something of a global trend. see generally, lynisse phillips pantin, “the economic justice imperative for transactional law clinics” 62 villanova law review 175 (2017). the author notes that business/commercial/transactional law clinics have proliferated in the us as students demanded more opportunities in the field and asserted that they wanted to be seen “practice-ready” by large law firms. nonetheless, she argues persuasively that transactional lawyering and the public interest are not mutually exclusive. ibid at 184-192. 30 janelle anderson, “clinical legal education: perspectives from former clinical law students” 37 manitoba law journal 427, 429-430 (2013). reviewed article 123 based in part on what they had done and accounting for the different realities of legal education and practice in ireland, i composed and put the following 10 questions to them: 1) please provide your age. 2) why did you decide to study law at the university of galway? 3) why did you opt to take the clinical placement module at the university of galway? 4) what is your current job title? and what is the nature/type and geographic location of your current employment? 5) do you or did you perform any pro bono/public interest work in your current or in past legal employment? 6) do you have any interaction with law students in your current or in past employment through clinical legal education programmes? please provide details if so. 7) what was/were the primary difference(s) between your study of law, in general, and your experience of the clinical placement module at the university of galway? 8) in what ways – if any – has your experience of the clinical placement module at the university of galway influenced your career? 9) what ideas did you take away from law study and/or clinical legal education at the university of galway about the role of law graduates in society and/or the efficacy of the laws and the legal system? reviewed article 124 10) please share any further reflections or thoughts that may have come to mind or struck you about your exposure to clinical legal education at the university of galway either during the course of your career or while completing this survey? the students ranged in age from 31 to 37 at the time the survey was completed and 7 of the 9 correspondents were women.31 perhaps unusually, most of them knew back then, at the young age that they would have been making a big life choice, that they wanted to study law. galway, both as a city and a university, was a place they were very much drawn to for a mixture of factors. just one referenced what she termed “the clichéd but honest reasons around social justice” as underpinning her decision to study law. regarding their motivations for taking the clinical placement module, all bar one (who summed it up as “an easy way to get a decent grade”) referenced a desire to gain practical experience because it would give them an understanding of law practice that they were not getting in their mainly theoretical studies and/or it would boost their cv and chances of obtaining employment or traineeships after graduation. in terms of their career trajectory and current position, four are solicitors in large law firms in ireland or the uk, three are solicitors in small to medium sized firms in 31 the survey was conducted in 2019 and this article was delayed, like so much else, by the onset of covid-19. the summary of and quotations extracted from the survey responses are all on file with this article’s author. reviewed article 125 ireland, one is a lawyer in the irish public sector and one is a legal academic at an irish university. five of the nine have never performed any pro bono legal work; one indicated that she provided a small amount of pro bono legal work; two volunteer with the free legal advice centres, a national legal rights organisation that has a network of volunteer lawyers who give legal information to individuals in need at clinics around ireland; and one posited that the question was not applicable.32 and seven of the nine have interacted with students through the various clinical legal education programmes that have proliferated in ireland and the uk. lastly, in reflecting upon their clinical experiences and campus-based law study, they were unanimous in noting a very noticeable disconnect between the two on multiple different levels and several voiced the opinion that legal education should be more focused on the practical realities that await graduates, especially given that the practice of law is rapidly transforming.33 the group’s answers to the final three, open-ended questions focusing on impact and soliciting broader input were, in many respects, the most fascinating. the feedback from those surveyed can be organised in three rough categories: two were either neutral or incomplete and offered little food for further thought; two were alternatively cynical or negative; five were either broadly or very positive. the first 32 it is worth noting that more of them may now be undertaking pro bono legal work since the inception of the “pro bono pledge” was launched in november 2020, is coordinated by the public interest law alliance and has been signed onto by many firms and solo practitioners. see www.probonopledge.ie for more details. 33 a telling comment from one respondent about the contrast between law study and law practise: “a person once said to me that being a solicitor is 90% admin and 10% law and they were absolutely right.” http://www.probonopledge.ie/ reviewed article 126 in the negative “pile” evidenced what some might describe as the worst of a stereotypical big firm mind set. in short, clinical legal education is a reasonable enough idea, but its goal should be to assist students in getting “proper jobs” with large firms and not on placements with ngos or small firms that “lack sophistication.” the second felt that the impact of a part-time placement was minimal and regarded a subsequent ll.m. degree at another university which was delivered in large part by non-academics – “barristers, judges, forensic scientists, guardians ad litem, probation officers, journalists, etc.” – as a far more valuable formative pedagogical event. most of the positive comments focused on the “real world” exposure – “it was great to see law in practice” – or on how it helped sharpen relevant skill sets: “it was probably the first time i carried out a task that remotely resembled what i do every day in practice.” others honed in on how it helped their career trajectories and boosted career prospects: “the programme was very helpful from a cv and interview perspective as it showed some real experience and, for the purposes of interviews, it was helpful for providing real life examples. from a practical perspective, it was also good to have some office and law firm experience and to get a reference from a wellregarded solicitor...who was very nice and offered good career insight…this was all notwithstanding the fact that i did placement in a general practice (family law, criminal law and conveyancing), but trained and practice in a corporate law firm.” reviewed article 127 there were a couple of “gems” for those of us who contend unwaveringly that the mission of clinical legal education lies in the social justice/public interest sphere. “one take away point was the scale of opportunity for lawyers to contribute in making a difference to the world and that, while results are not always immediate, the effort of law graduates in the various (ngos, government agencies, international institutions, etc.) can have an impact on our lives and on how our society develops.” and finally: although the legal profession gets a bit of a slagging, i think that if we were to get rid of all the lawyers in the morning, it would not be the wealthy and the powerful that would suffer. i have always believed that law is a tool through which we can address an imbalance of power in society. despite how the legal profession is portrayed in the media as immoral, there are many lawyers who make sure that families are reunited, keep children away from abusive caregivers, protect domestic abuse victims, and fight for their clients’ right to a fair trial or work to ensure that human rights are protected generally. without these lawyers (of which i don’t claim to be one), the most vulnerable people in our society wouldn’t have a voice or a means to protect themselves and the world would be a more sinister place. most of us are just trying to represent our clients’ interests to the best of our ability and whilst this isn’t as lofty a goal as the preservation of human rights and may seem like a small thing, to the clients themselves, i imagine it matters a great deal. reviewed article 128 these words are equally powerful and gratifying for all of us law teachers trying to keep the faith. iv. reflections on the surveys in many respects, comparing the results of the “after the jd” and university of saskatchewan college of law surveys with my own is a case of apples and oranges. there are plenty of factors distinguishing the respective mind set of law students and lawyers in ireland and north america. first and foremost, our students are undergraduates whose ideas and ambitions are nowhere near as fully formed as those who are typically a minimum of five years older and pursuing professional doctoral degrees. for one thing, the latter category of student is far less likely to have been influenced by parents in choosing a course of study than the former. moreover, there are the realities that a legal education costs far more in north america than in ireland (or anywhere in europe) and that, unlike in canada or the us, approximately half of our students opt not to qualify professionally as lawyers and use their law degrees to pursue other lines of work. finally, clinical programmes across the atlantic are way more advanced and allocate to their postgraduate students a lot more responsibility than european clinics ordinarily do. that said, and before considering the responses of university of galway students “in a vacuum,” there are some similarities among the answers to the three surveys, notwithstanding the contrasting milieu in which each was conducted. “after the jd” obviously involved a much higher number of participants than either of the other two. reviewed article 129 yet when it comes to illustrating the measurable, tangible impact, at least with respect to the civic dimension, of clinical legal education on law graduates, it reflects many of the same truisms. that is, the impact is fairly insignificant. “after the jd” just did not unearth any demonstrably greater rates of participation in charitable, community or political activities, pro bono legal practice or public service employment – except for the last among the relatively limited pool who professed to a social justice orientation prior to commencing their studies – attributable to having taken clinics in law school. in this american survey, there were very glowing reports of how clinics had helped early on when completing tasks. the skills-enhancement aspect was enthusiastically endorsed; the civic component did not feature to anywhere near the same extent. likewise, and notwithstanding the facts that the questionnaire was more targeted and that the law school’s clinical programme wears its social justice and public interest identity on its sleeve, the results from saskatchewan were pretty deflating. graduates repeatedly stated that they still had strong faith in the ideals that led them to enrol in the clinic and moved them profoundly while seeking to achieve justice for the clinic’s indigent clinics. they asserted that these notions and memories continued to inform them in their professional lives. but at the same time, only ¼ are active pro bono practitioners, with more than half never or rarely undertaking pro bono work. one would expect that the type of commitment these lawyers espouse would translate into more hours and cases. additionally, a fairly paltry 20 per cent are employed in the public sector. again, one could be forgiven for anticipating that this number would be higher. it is no secret that working at a private large firm, particularly a large one, reviewed article 130 usually comes with a much higher salary than a job as a government or legal services lawyer and that educational debt is a serious burden for the majority in north america, but there are clear advantages to eschewing “big law,” which, in theory, would seem to be a draw for this cadre in western canada.34 the survey does not bear this out, however. the “forces external to legal education that powerfully shape lawyers’ attitudes and behaviour” identified by sandefur and selbin are manifestly at work not only in north america, but also here in ireland.35 the career tracks pursued by the pilot group of students at the university of galway reflect this inescapable truth; in the main, they are lawyers in financially lucrative private practice. and that is entirely understandable at many levels. the cost of living in ireland – for literally everything, from housing, to child care, to a pint of guinness – is sky high and far in excess of the european average, particularly in and around dublin where most of the country’s leading law firms are located.36 as such, despite the fact that irish law graduates are minimally indebted by comparison to their counterparts in the us and canada, they need to earn a good salary to afford rent initially and to be able to purchase a home eventually. 34 katie taylor, “biglaw v public service: pros and cons to consider for life after law school” (24 may 2022) available at <https://www.nitrocollege.com/blog/big-law-v-public-service> last accessed 14 july 2022. 35 rebecca sandefur and jeffrey selbin, “the clinic effect” 16 clinical law review 57, 105 (2009). 36 charlie weston, “ireland’s cost of living soars above eu average as new report reveals just how much prices are rising” irish independent (21 june 2022) available at <https://www.independent.ie/business/personal-finance/irelands-cost-of-living-soars-above-euaverage-as-new-report-reveals-just-how-much-prices-are-rising-41774596.html> last accessed 19 july 2022. https://www.nitrocollege.com/blog/big-law-v-public-service https://www.independent.ie/business/personal-finance/irelands-cost-of-living-soars-above-eu-average-as-new-report-reveals-just-how-much-prices-are-rising-41774596.html https://www.independent.ie/business/personal-finance/irelands-cost-of-living-soars-above-eu-average-as-new-report-reveals-just-how-much-prices-are-rising-41774596.html reviewed article 131 what’s more – even leaving aside some of the comments that are unjustifiably biased in favour of “big law” – the qualitative feedback is revealing when it comes to their professional identity. for instance, as outlined above, one respondent was positive about her clinical placement experience years earlier, but inserted the caveat that it was in general practice whereas she was trained at a corporate law firm and now works in the area. another praised the efforts of lawyers fighting on the frontline for access to justice, yet was careful to indicate that she was not one of them and, instead, was attempting to secure the best result for her own clients in law practice. it may be over-parsing their words, but they are at least suggestive of what critics might term a “corporatist” professional identity or ethos that most clinical legal educators would either explicitly or implicitly reject. in reading and re-reading my former students’ comments, i also had to continually remind myself that these then final year undergraduates were not required to adopt the ideals that animate most clinical legal education instructors. all this pilot group had to do was show a willingness to take a risk on something different and a desire to see how law operates in the “real world.” they did and, to a person, they acquitted themselves very well. i will forever be in their debt for enrolling in the module and getting the programme off to a fine start. that they have done so well since they completed their degrees is testament to their ability. and again, neither their nor the clinical community’s point of view, broadly speaking, is necessarily the right one. indeed, those who tend to heap scorn on “big law” and use terms only half in jest like the “dark side” to describe working in large commercial reviewed article 132 firms are too glib and do not have any legitimate claim on ethical superiority. still, the common, undeniable thread running through the “after the jd,” saskatchewan and galway surveys is that clinicians are having a quite pronounced impact in the skills dimension and a rather negligible impact in the civic dimension of lawyer training. that is definitely affirming, on the one hand, and deeply concerning, on the other, for many of us true believers. v. some concluding thoughts to return to a question posed at the outset, then, what difference is clinical legal education making? the surveys detailed herein suggest that clinic participation is equipping graduates with the vital skills and aptitudes needed to work as a lawyer or in a law-related field and are frequently cited by those charged with hiring and recruitment as the most important and most lacking.37 but what one leading clinical scholar would probably call the sine qua non of clinical legal education – making students “intensely aware of the mission of lawyers in serving justice, and in representing the weak against the strong”38 – does not seem to be creating the reservoir of “lawyers for others” that many of us would have hoped for, at least if these three surveys are anything to go by. of course, they represent a tiny sampling and it would be a mistake to extrapolate excessively from them. yet they are discouraging. 37 mark cohen, “law’s looming skills crisis” forbes (21 may 2019) available at <https://www.forbes.com/sites/markcohen1/2019/05/21/laws-looming-skills-crisis/?sh=6f59c20e445c> last accessed 19 july 2022. 38 richard wilson, “western europe: last holdout in the global acceptance of clinical legal education” (2009) 10 german law journal 823, 829. https://www.forbes.com/sites/markcohen1/2019/05/21/laws-looming-skills-crisis/?sh=6f59c20e445c reviewed article 133 above all, it would seem that the very powerful, often corrosive forces – economic, historic, institutional, cultural, et al – that clinical legal education programmes, at their best, are purposed to hold to account militate against clinic participation having a more transformative impact in the longer term, after students have finished and move on. for example, it is easy to decry a lack of correlation between clinic enrolment as a student and public interest or government employment as a lawyer. but it is equally easy to comprehend in a context where these jobs are regularly limited in number and poorly remunerated as inflation continues to soar. what should we do? despair is not an option. although it may be trite to say, we must keep on keeping on and never lose heart, even as we need to be realistic and manage our expectations about what we can and cannot accomplish. some of the feedback from graduates in the three surveys, albethey in the minority, demonstrate the potential clinic has and will always have. a small initiative i have been pursuing is to identify past students for whom clinic genuinely was impactful and to bring them in – physically or virtually – to speak to present students about what they did then and what they do now. it seems to resonate. and even if it proves fleeting a lot of the time, it is important to remember that, through clinical legal education, many students are obtaining a cognisance, an awakening about the law and legal system, the flaws therein, and the special responsibilities being conferred upon them. as one of them wrote after going above and beyond in her work on a fledgling innocence project at the university of galway, it reviewed article 134 allowed me to see how i can provide a voice for those who might not ordinarily have been afforded one…it is important to use our educational privilege in the future to effect change in flawed systems because, in turn, we have the ability to save others from the needless suffering of those who came before them.39 serious challenges and difficulties aside, the mere prospect that these enlightened sentiments will inform this student’s life in the law is why we do what we do – and why it is so gratifying. 39 student reflective essay, academic year 2018-2019 (on file with author). quality-lite for clinics: appropriate accountability within ‘live-client’ clinical legal education. hugh brayne and adrian evans1 context: adrian evans has run clinical programmes within a community context at monash university for some time. students lucky enough to get on the monash programmes can get credit for their work towards their undergraduate and vocational qualifications. the bureaucracy is minimal. the monash team train and supervise the students closely to ensure that they know what they are doing and provide a quality service; they discuss the issues which interest them; the staff then grade the students according to the quality of their work for the client, in court or in community development environments. little time is spent on unnecessary paperwork, since there is already much that must be produced and recorded to comply with legal professional obligations. in july 2003 adrian invited hugh brayne to do a mock quality assurance audit on the monash liveclient clinical programmes. hugh brought ten years of experience as an auditor with various english quality bodies, the quality assurance agency, the higher education funding council, the law society and the bar council. the english experience has been to specify with more and more apparent precision what an educational programme is designed to achieve, and to claim with more and more precision that the assessment instruments match those achievements, and to involve more and more people in self-monitoring, paper trails and external verification. where clinics depend on legal aid franchises, which tend to carry astoundingly onerous bureaucratic requirements designed to nail quality to one centralised regime (well beyond any normal legal professional obligation) – jettisoning that qa regime may not be realistic. our paper will explore the tensions. we are not going to be able to jettison quality assurance, even if we wish to. so we will propose a ‘quality-lite’ agenda for law clinic objectives and student outcomes, asserting that self-governance and our own qa processes will protect live-client clinics quality-lite for clinics: appropriate accountability within ‘live-client’ clinical legal education. 149 1 hugh brayne is visiting professor at thames valley university, and has been involved in clinical legal education in england for 20 years. adrian evans is associate professor of law and convenor of legal practice programmes at monash university, australia. we thank roy stuckey, philip plowden and jeff giddings for their helpful comments on the approach to quality assurance described in this article. comments on this article are welcomed: email hugh.brayne@blueyonder.co.uk; adrian.evans@law.monash.edu.au from ill-designed, externally imposed bureaucratic pressures. encouragement of innovation in clinical legal education – and its support via quality-lite – need not be restricted to a few institutions that are independently funded. ultimately, qa must be facilitative of development in technique and policy or there will be less and less to ‘assure’, let alone deliver to communities in need. introduction law centres and law schools combine in various ways to offer legal services to disadvantaged persons and to better educate law students. while these dual educational and public service objectives define and constrain the mix of methods and available outcomes, it is an article of conviction among many involved in live-client clinical education that each needs the other: that education without service is selfish and impoverished and that service without continuous learning is barren. the view amongst clinicians that their clinics can be effective in achieving both educational and service goals is deeply rooted, but we know we have our critics and detractors. is a faith-based justification of our effectiveness sufficient? one way in which both sectors – education and legal services – are increasingly called to account for the effectiveness of their work is quality assurance. it is our view that clinics will be increasingly subject to scrutiny for quality assurance purposes, and that the clinic movement should begin to debate how to respond to such demands. but demonstrating that what we consider to be a potent combination of objectives delivers genuine educational and service quality is not straightforward, since conventional quality assurance regimes for both sectors do not ordinarily take account of each other. this article seeks to suggest a number of composite and appropriate approaches to educational quality within live-client clinical legal educational settings, and although the issue of service quality is not our focus, it is unavoidable that educational quality assurance will also impact positively on client service quality. we have not ourselves reached a view whether we should welcome the advent of quality assurance requirements in our clinics, but in a sense that is irrelevant. we have to respond in any event. thus our primary focus will be on the educational quality assurance aspects, and that is where our own work has started. quality assurance in he quality assurance (qa) is a management tool designed to ensure that products and services achieve uniform minimum standards of quality, as a part of the enhanced accountability requirements of modern professionalism.2 qa does not inevitably mandate standards as minimums, but the process is as much a psychological one as anything else and the eventual reaction to a standard is to treat it as a minimum.3 150 journal of clinical legal education december 2004 2 steven k berenson, ‘is it time for lawyer profiles?’ (2001) 70 fordham law review 645. 3 in england, the quality assurance agency for higher education has set out subject ‘benchmarks’ for different disciplines, indicating what a student taking a first degree in that subject ought to have achieved. those for law can be viewed at http://www.qaa.ac.uk/crntwork/benchmark/law.html in theory the benchmark statements are not mandatory. in practice they are treated as minimum requirements, and to the authors’ knowledge no law degree explicitly departs from them. additionally the qaa sets generic outcomes for degrees, and each level of study below the award of degree. it is not optional to adhere to these, and quality assurance processes are designed to monitor adherence. the illusion is that the process is reliable and objective. however it requires assessors to reach conclusions and even gradings which inevitably are the result of judgement. despite doubts as to the predictive capacity of a (minimum) standard and who benefits from them,4 the technique is entrenched and there is every reason to believe that, where this has not already occurred, compliance with some sort of qa process will shortly impact upon clinical legal education.5 qa processes will require, successively, thought about and then documentation of, every stage of the clinical legal education process, sufficient to ensure fairness, transparency in outcomes and the relevant, balanced assessment of results. so far so good: no one will argue that the above goals are not worthwhile. the problems with the process lie in their psychological effect upon staff and the contribution quality assurance processes make not only to measurement of quality – which is their purported remit – but conceptualization and design of learning and teaching. we know that students focus on what is assessed rather than learning for its own value, and law schools are subject to the same pressures to design and deliver programmes to comply with the assessment which qa brings. much of the experience of quality assurance regimes within higher education has been salutary. teachers who must meet compliance agendas are conscious of the potential for quality reporting to become a deadening influence, devaluing reflection on what might happen and substituting a merely positivist description6 – the accuracy of which can often be doubtful – of what has been and gone. those who design educational programmes to meet quality assurance prescriptions start from external indicators of what their outcomes and objectives should be, and of course they always report that they have then met all of these. a climate of conformity, bureaucracy and even mendacity is, at least potentially, created, though whether professional integrity and effective inspection succeeds in overcoming such pressures is debatable. if we can take the opportunity, as a coherent group of scholars in legal education, to design and implement our own quality assurance processes, we pose the question: what kind of regime is appropriate for legal clinics – their lawyers, their students and their clients? we propose that all might benefit if, in this type of educational programme, indicators of quality can be agreed and, to the extent necessary, formalized which are light on prescription and strong on inspiration. the limitations of quality assurance processes, once they begin, are that constant change (‘improvement’) in procedural requirements and the measurement of achievement leads to a lowering of morale, failure to encourage programmes to grow organically, and increased staffing changes7. we argue that each of these negatives can be reduced within legal clinics (at least) if those responsible for qa in these workplaces recall why these clinics were established and opt for a quality-lite for clinics: appropriate accountability within ‘live-client’ clinical legal education. 151 4 christine parker, just lawyers, oxford university press, oxford, 1999, pp 22–25 5 for example, the australian national professional standards legislation (www.professionalstandards. nsw.gov.au), which is intended to cap liability for negligence in exchange for agreed minimum standards in service delivery, including complaints handling and risk management, will apply to most australian clinics because their principal solicitors will be bound by these standards 6 as john nelson has commented, ‘this is in part because a knowledge of doctrinal law in specific curriculum areas is comparatively a more measurable outcome when it comes to demonstrating that accountability standards have been met’. see 12 (2) legal education digest p 10 (october 2003), reviewing anthony bradney, conversations, choices and chances: the liberal law school in the 21st century, hart publishing, 2003 7 ‘inspection fatigue’ in schoolteachers in england and wales is known to the authors as a not uncommon reason for experienced teachers not just to move on but to leave the profession. we are not aware of any data collection in relation to this. quality-lite approach, preserving the culture of innovation, altruism, mutual respect and systemic advocacy that has attracted highly motivated staff to relatively low paid positions. existing qa norms our perspective is informed by the methodology used by the quality assurance agency for higher education in england and wales, which is replicated in many respects by the bar council and the law society. it may be useful to set out aspects of the current elements: external examiners. apart from first year courses at undergraduate level, the setting of assessments and marking of student work is moderated by a senior academic from another institution. this external examiner confirms the appropriateness of the assessment and the marks, that the standards are consistent with the sector norms, and comments on quality issues. the qaa has specified in detail the requirements for the external examiner and how the university must respond to reports.8 the external examiner’s reports are used as evidence of quality when the institution or the subject is reviewed by the qaa. from 2004 a summary report confirming the maintenance of standards is also posted on the institution’s website. there is then provision for peer review of quality. the peers are external subject specialists, appointed by the qaa as part of a relatively small cadre of reviewers9. evidence for the judgments about quality made by these external reviewers which has to be exercised is then derived from reviewing course documentation; inspecting minutes of relevant school and university committees; sampling assessments; reviewing student feedback and meeting students; checking on internal classroom observation protocols (and if necessary observing classes); talking with staff and stakeholders; and evaluating the reality of resources (physical, staffing and financial). over the past 11 years this process has been applied to all subjects in all higher education institutions, with varying degrees of intensity, ranging from the three day swoop including classroom visits to the ‘light touch’ adopted more recently, which, through institutional audit, involves verifying the institution’s own quality assurance processes rather than duplicating them. in a formal review documentation is the primary source of evidence of quality, and is available to a reviewer in advance and during the evaluation. this would include programme specifications (that is the aims, objectives, and student outcomes for the programme as a whole); individual unit specifications; unit guides; sample assessments; samples of marked work; internal course reviews; minutes of boards of study and assessment boards; external examiner reports; and minutes of staff-student liaison committees. it includes the institution’s own assessment of the quality of the relevant programmes, once known as a self-assessment document, but because of the unfortunate but perhaps apt acronym sad now renamed the self-evaluation document. no programme of study under this system can be commenced until the course provider has set out, in advance, a statement of learning outcomes for the programme as a whole, and identified where in the programme each of these outcomes will be assessed. this process is known both as validation and course review. it requires learning – knowledge, skill and attribute development – to 152 journal of clinical legal education december 2004 8 see uk code of practice for external examiners at http://www.qaa.ac.uk/public/cop/copee/contents. htm 9 most of the subject specialists appear to the authors to be in it not for reward but to understand the process so that they can cope when their own provision is inspected. be broken down into discrete, measurable, and attainable outcome statements which are then parceled out into the various elements of teaching and assessment making up the programme. the quality assurance process will expect the institution then to demonstrate exactly where these outcomes are intended to be, and are in fact, achieved. all of these measures are well intended, but without exception, they progressively define and measure the social and educational impact of a course or unit as a limited series of numerical assessments or ticks on a checklist. the qualities we described above which we think characterize clinics, and other vibrant aspects of learning culture – imagination, motivation, altruism, respect – do not lend themselves, except in rhetorical and probably hyperbolic contexts, to paper-based measurement. crucial intangibles such as the sense of vision possessed by the course leader and acknowledged by the staff; the degree of inclusiveness which students feel; the extent to which staff and students act with emotional intelligence in their own working relationships and in their regard for clients; the sophistication of staff ethical awareness and articulation and whether the clinic is making both one-to-one casework and systemic differences to the surrounding community – these are beyond the explicit scope of a typical qa investigation. (they are not necessarily removed from the implicit scope of such enquiry, however, since quality assessors only purport to make objective evidence-based reliable judgements. in fact they are not immune to impression, charm, enthusiasm, idealism etc, and must make evaluations as well as tick boxes. these positive judgements are often made as a result of exposure to the culture of an institution but any final outcome of the quality assurance process denies such influence and spuriously claims that paperbased audit trails supplemented by short and linear interrogation of small numbers of staff and students have captured the relevant information.) the problem, for those who wish to navigate their educational provision through inspiration and vision as well as objectives and outcomes, is that qa is an unpredictable process. what the quality assurance assessors are looking for is auditable data. while the qualities listed in the previous paragraph, and manifested at any gathering of clinicians, are generally absent from conventional educational quality assurance, we firmly believe that they are the signs of a transcending (clinical) legal education. these are the factors that determine whether the clinic will make a real difference to a student’s self-image, to their sense of vocation and to their career choices. in a sense clinicians know that what they do is change people – their outlooks, their futures, their passions. but it would be indulgent and grandiose, not to say demeaning and unrealistic, to reduce such changes into discrete and measurable course outcomes. then we would have to reduce them to measurable identifiable behaviours that could be assessed. we can’t do that, so we can’t be quality assured against such outcomes. what matters and motivates is not actually on the current agenda for quality assurance measurement. if and when the current qa model arrives to measure the achievements of the clinics we value so dearly, what they will measure using available methodologies is restricted to that which we have purported to deliver and assess, which is particular behaviours we want our students to manifest rather than existential change. our own experience is that mechanistic quality assurance procedures can result in game playing by academics, supervisors and administrators. to guarantee achievement of stated learning objectives by all students, these objectives may have to be specified at an unnecessarily low level; documents may be produced for quality assurance purposes which do not reflect the reality of what is taught and assessed, or which minute discussions which took place merely for the purpose of creating the quality-lite for clinics: appropriate accountability within ‘live-client’ clinical legal education. 153 minute; assessments may be produced which purport to assess outcomes which they do not – perhaps cannot – assess; claims may be made as to reliability and equivalence of outcomes and assessments which cannot be justified, and teachers/assessors may knowingly assess according to a holistic and subjective judgment while pretending to be objective; ambitious and meaningful learning may be sacrificed in order to achieve what is quantifiable; meetings on course design, teaching and assessment may concentrate on what is recorded for the purpose of the quality assessment rather than what needs to be freely aired for the purpose of identifying opportunities for improvement and innovation. because of the distorting and subversive effect of these now traditional aspects of the quality assurance approach described, we do not place great weight on most of the issues or potential methodologies listed above, in so far as they relate to demonstrating reliability of assessments. in particular, we are sceptical, even to the point of disbelief, that the legitimate desire of government for value-for-money in legal education (via onerous but predictable external assessments) – and legal aid funding (via franchised legal service delivery) – can or will ultimately produce the crucial indicators that distinguish the legal clinic: for example innovation, motivation, excitement, and engagement. but we would suggest that there may be some less onerous approaches to qa which could be considered because of their potential to develop, rather than frustrate, an innovative climate, particularly in clinical legal education. quality-lite recommendations this raises the question: should clinics devise and trumpet their own qa processes, including their own version of self and external audit, before these are imposed on us? our intention is to explore whether we can pre-empt the rather mechanistic uk approaches to quality assurance in higher education, so that they do not devalue the clinical programmes that are now becoming progressively more commonplace in legal education worldwide, and do not degrade the process of inspiring students (and thereby serving the community) by reducing all of what we do to predictable and measurable outcomes. even moderate measuring of outcomes against targets, and even a hint of auditing of activities, can reduce creativity and innovation. one of the key achievements of the clinic is one which is rarely stated as an objective, and it focuses on the quality of the working relationships. this, we suggest, rather than a paper-based audit trail, is the key element within a quality-lite approach. in a vibrant programme students seem to find motivation and enjoyment not only in the task, but in the close, almost intense, quality of the relationship with the supervisor and the team.10 learning is fostered as much, perhaps more, through mentoring and role modeling as through instruction. this quality of ‘modeled trust’ dominates our underlying assumptions as to the values of live-client clinics11 and we do, for the sake of clarity, affirm that personal trust among clinic director, supervisors, students and, if this is not obvious, between students and their clients, is both our objective and that trust between the assessors and most or all of these would become the defining mechanism for a quality-lite regime. 154 journal of clinical legal education december 2004 10 see generally hugh brayne, richard grimes and nigel duncan, clinical legal education: active learning in your law school, blackstone, london, 1998 11 we do not wish to imply that there are not further underlying assumptions for clinical work. shared belief in improving access to justice, in a credible rule of law and in reasonable social wealth distribution are all a part of the package, but we do not explore these in this paper because that discussion (necessary though it is in other contexts) would divert us from our primary focus of quality assurance. as we have observed above, quality assurance has, at least in the uk, mainly relied on paper. an audit trail is used to demonstrate that aims match objectives, which are consistent with planned and achieved outcomes. but if we claim that relationships, imagination and engagement characterize the clinical experience, we have a difficult question: how do we measure these? we posit quality-lite assurance mechanisms that obtain data and evidence which cannot be reduced entirely to paper, which depend in part on trust by the auditing authority in its assessors, in trust by assessors in clinical supervisors and in trust of students by their supervisors: in other words, in the respectful, energetic, engagement by assessors in the spirit of the clinic, its supervisors and students. while, of course, paperwork should be of sufficient quality to show, at least, that procedures and expectations have been thought through, we do not expect to find the main evidence on paper that outcomes are met. given that qa is – and perhaps rightly – about auditing what goes on against what was intended, as a first step for a quality-lite approach we suggest identifying some of the key characteristics of what in our view makes clinics valuable. then we have to suggest some possible auditable indicators of achievement. at this point in our thinking we would like to explore a two-stage process for identifying this quality-lite process. first we flag those qualities of clinical objectives and student outcomes, which we consider are essential elements of a viable and creative clinical programme. secondly, in relation to each of these qualities, we try to demonstrate some of the relevant and valid quality-lite things to do, to assure the delivery of both objectives and outcomes. we will also briefly mention some of the things to avoid doing, in trying to achieve these objectives and outcomes. our proposals, which are spelled out in the table below, are tentative and consultative: we seek the evaluation, advice and judgement of readers and clinicians, and would like our ideas to be judged on their capacity to assure and nurture the forward-thinking inspirational approach, rather than recite and prescribe monochrome content. quality-lite for clinics: appropriate accountability within ‘live-client’ clinical legal education. 155 qualities of the clinic qualities encouraged in demonstrating these with the student quality-lite creativity in programme creativity of student ask objectives and organisation responses to client dilemmas. • does acknowledgment of creativity figure in supervisor feedback to students during supervision and following assessment? • is there an energy/frisson visible in student-supervisor conversations, in out-of-hours activity as well as scheduled activity and in student evangelism in the wider law school? • is there evidence of the supervisors exploring with the student whether unrealistic ideas were based on imaginative conceptualization of the problem, or merely because of failure to grasp essential detail? inwardly and outwardly students’ reflections on ask if there is evidence of focused ethic of clinic • the extent of clinical critical and reflective analysis reflection on its own vision legal services users’ • within reflective journals and processes autonomy • in staff publications • understanding of how legal • in supervisor discussion with services meet the needs of students the community or not, in the • within staff meetings case of specific clients, and • in written campaign strategies why this might be the case • in submissions on law reform issues • in community development plans and strategy documents • in funding submissions? 156 journal of clinical legal education december 2004 qualities of the clinic qualities encouraged in demonstrating these with the student quality-lite clinic policy on habituated, student discussion ask contemporaneous client intake with each other and their is/are there related supervisor-student supervisors, concerning • facilitated meetings among discussion of the immediate immediate client needs supervisors and students, held clinical experience, having regard close in time to relevant client to the above quality-lite intake sessions? indicators • a process for students to provide their own views as to the quality-lite approach? • a list or statement for the student of the ideals of the clinic and what is hoped it will do for them? • evaluations within student journals of what has happened to them in relation to each of the above ideals? clinic confidence in its student confidence in their ask processes and outcomes personal and professional • what the policy documents, development as a consequence submissions and annual reports of participation in clinical of the clinic indicate about process clinic confidence in its contribution to legal education • what clinical students say about their own experience of the clinic? • what other law students report about what the clinic gives to its students interdisciplinary focus of students’ interdisciplinary ask clinic operations – to achieve process in dealing with clients’ • do students record in journals, ‘whole of problem’ approaches work – including recognition their wholistic assessment of re systemic injustice and of non-legal dimensions of the client’s needs and individual client satisfaction. clients’ problems. possible ‘solutions’? • do teaching materials evidence interdisciplinary awareness and approach? • what are the opinions of related agencies? • what is revealed in conversation with students? quality-lite for clinics: appropriate accountability within ‘live-client’ clinical legal education. 157 qualities of the clinic qualities encouraged in demonstrating these with the student quality-lite clinic development and student engagement with ask engagement with normative normative community for examples of current client community development and development and law reform case plans containing an element law reform possibilities models of the socio-legal story around each client’s dilemma. ask community partners for their opinions. consider if broader community objectives are present in teaching materials and in student conversations. clinical policy and practice student self-awareness of their ask if re ethical behaviour in relation own personal values, of the • student reflective journals to clinic administration & various ethical methods which demonstrate self-awareness of student-client interaction apply to legal practice and of alternative ethical models and the method which most appeals of any relevant ethical choice to them they intend to make? • students have only a consciousness of conduct rules? • supervisors’ journals articulate first principled-ethical consciousness? clinic attitudes to student attitudes to ask • interest in the client as a • interest in the client as a • does the client case plan show person rather than as a case, person, client respect, or only interest • collaboration between • working with fellow students in point(s) of law? co-students and and • is the student comfortable • staff/student reliability in • punctuality and reliability with team work? deadlines/meetings in achieving deadlines • how effective is the students’ diary system? clinical policy in relation to student respect for technical ask if development of the range of competency, diligence in legal • client case files evidence students’ technical skills and research and effective client technical skill, an accurate doctrinal awareness communication (normative) knowledge of the law and good client communication • students’ journals display awareness of the range of technical skills necessary to competent legal practice • client feedback via satisfaction surveys supports students’ technical competence 158 journal of clinical legal education december 2004 qualities of the clinic qualities encouraged in demonstrating these with the student quality-lite clinic expectations of ask supervisors’ accountability re • do supervisors maintain work students’ achievements journals recording student (as described above), to achievements? • promote consistency • do supervisors share the between supervisors contents of their work journals • satisfy faculty concern that and opinions of individual clinical marks are too high student performance with compared to mainstream each other? assessment • do supervisors publish jointly • safeguard against complaint and/or in conjunction with of bias or unfairness non-clinical academics? • allow sharing of assessment • do supervisors meet formally with colleagues delivering or informally over meals and other parts of the students’ use some of this time to reflect course programme on clinical policy and/or • allow legal, ethical and students’ progress? procedural issues arising • are there mechanisms for from client work to be training and developing identified and recorded for supervisors’ knowledge base, regular discussion, staff skills and awareness of clinical development activities and policy? analysis leading to publication. quality-lite for clinics: appropriate accountability within ‘live-client’ clinical legal education. 159 12 see onora o’neill, ‘a question of trust’, reith lectures, bbc 2002 these suggested qualities of creativity, reflection, confidence, collaboration, a normative understanding of law, ethical choice and teacher-learner accountability would be at the heart of quality-lite assurance. we admit that these suggestions mix the subjective with the objective assessment of performance; and we opt for a modest compromise of indicators which promote cohesion, collaboration, insight and commitment amongst clinical staff and students. they also encourage a role for quality assurance assessors which it is our experience that many in the uk have indicated a yearning for – the ability to play the role of critical friend rather than conveyor of judgment. in the end, teaching and supervising – indeed any professional function – cannot be reduced in a quality-lite context to a total objectivity because the professional function, not just the environment of the successful clinic, demands trust of the clinical practitioner and of their judgment.12 such trust and judgment involves acceptance of some subjective elements in qa and ideally, a compromise in approach as to what is measured. we believe that trust and the building of relationship between assessor and their clinicians is in itself a valuable goal, and strengthens and even validates the exercise of judgment. a quality-lite process does not falsely pretend to achieve objectivity where subjective elements must and do contribute to judgment. things a quality-lite approach seeks to avoid inevitably, there are some qa approaches which we think are unlikely to promote quality-lite trust but will lead to a reductionist atmosphere developing within the clinic. the following would, in the measurement, possibly serve to destroy what would be measured: • exhaustive listing of case information and case variables on all sampled case files • mechanistic scoring on a card (or via software) of the possible indicators for creativity, • names and numbers of interdisciplinary services/agencies which were accessed in dealing with client problems, • insistence on written reports from any such agencies to evidence their involvement, the areas of client welfare other than law listed by the student on the client record, • checklists to record whether for example there are written instructions on file from the client to commence proceedings, whether there was an interpreter present in all discussions with the client, whether the students produced interviewed in accordance with predetermined client interaction protocols. such strategies do not even offer short-term reassurance to assessors, are of next to no use to the clinic per se and promote, among staff and students, merely positivist recitations of events and actions. the normative practice of law recedes in importance as the volume of checklists expands. restricting qa assessments to what can be repeated and externally verified, as in the related legal aid franchise environment, reduces considerably the quantity of evidence on which such assessments can be based, omitting in particular the evidence derived from regular and detailed observations of student performance. it is possible to replicate this evidence, as we suggest above, by requiring students to report, for assessment purposes rather than as a normal part of their case management, in writing on their activities under specified headings. reporting can permit evaluation of the additional outcomes we value, such as critical evaluation or personal insights into learning. however – and this is where a link to service quality is unmistakable – a student whose service delivery is poor has to be tentatively assessed more encouragingly if the account of that service delivery and the reflection on learning is good; or vice versa. to the extent that educational quality assurance can gain a ‘quality’ lead over other qa processes, such as franchised delivery and professional risk management regimes, the quality high ground may be retained. with so many commentators now proclaiming clinical method as the way out of merely positivist legal education,13 there is much at stake if student creativity, innovation and emotional commitment to normative learning is not to be sterilised to fit ‘objective minimums’. 160 journal of clinical legal education december 2004 13 robert gordon of yale university, is one of many who advocates more linked ‘clinical-ethics’ initiatives in law schools, because of their potential to actively develop a critical morality in future lawyers. see keynote address, first international legal ethics conference, exeter university – july 2004 conclusion heavy-handed, mechanistic approaches to qa such as those commonly used in the current uk protocols are most unlikely to assist a comprehensive understanding, let alone improvement, of clinical legal education in the uk and australia. in the spirit of creativity which we see as normal in the viable clinic, supervisors ought to see quality-lite assurance as a process of ongoing informal peer review; as developmental rather than as onerous; and as encouraging of innovation in all aspects of its operation. while qa necessarily involves some ‘adding-up’ – at least in verifying the existence of procedures – it is the existence of good working relationships, of creativity in both approach and solution, of encouragement to critically reflect on the justice system, of experimentation in approach to problem solving, of value-centered ethics and of positive student attitudes to clients and to their fellow students, that are at the heart of valuable qa in clinical legal education. ** quality-lite assurance in clinical legal education is not yet a formal reality and its detail is likely to vary between jurisdictions and cultures. the effort commenced here to argue for such a regime and to suggest some appropriate assurances, has barely begun. clinics have too much to offer both disillusioned and doctrinally-focussed law students, for that effort not to be continued. the 2003 informal review of the monash clinics provide an anecdotal glimpse into what is possible in quality-lite assurance. this review was conducted over about two and a half weeks, from start to finish. the emphasis of the review report was upon trusting assessment, not fault-finding, though it became clear that there were issues which needed to be addressed. when, in early 2004, the new dean of the law school asked if it was necessary to do a formal review of the clinical programme, the answer was that the clinical staff had had – in the spirit of creative development – much input to the informal review, its recommendations had met with general agreement, assessment sub-committees had commenced improvements and, incidentally, the report was available for him to peruse. quality-lite for clinics: appropriate accountability within ‘live-client’ clinical legal education. 161 law school based public interest advocacy: an australian story ray watterson, robert cavanagh and john boersig1 introduction this article presents a case for law schools to undertake public interest advocacy. it argues that incorporating public interest advocacy into curricula and research enhances clinical legal education and enables law schools to make a distinctive and valuable contribution to justice and law reform. the article outlines an integrated model for law school based public interest advocacy based on the experience of one of australia’s newest law schools at newcastle in the hunter region of new south wales. the article then describes a recent public interest case undertaken by academics, clinicians and students at newcastle law school, explaining their participation in the case and exploring the contributions made by the case to legal education, the correction of injustice and reform of the law. the case, one of australia’s most controversial deaths in custody, concerned the fatal shooting on bondi beach in sydney in june 1997 of french photographer roni levi. the article examines the shooting, its investigation by police, a coroner and an independent commission of inquiry. it analyses the flaws in these legal investigations, considers their justice implications, and outlines the legal and policing reforms achieved through the case. the article concludes with the suggestion that changes in law school culture as well as curriculum are needed to ensure that law schools embrace public interest advocacy and other forms of clinical legal education for the future benefit of the law and its students. law school based public interest advocacy: an australian story 7 1 ray watterson is associate professor of law in the faculty of law at the university of newcastle, new south wales, australia. robert cavanagh is a trial advocate and a senior lecturer in the same faculty. john boersig is a legal practitioner, director of the university of newcastle legal centre, and also a senior lecturer in the faculty. since 1995, at the university of newcastle legal centre assisted by their law students, the authors have undertaken a number of public interest cases aimed at exposing flawed investigation, correcting injustice and achieving reform. this article draws on what the authors learned, with their students, from these cases. what should law schools do? late last century william twining imagined an ideal law school, one which would provide: … not only basic education and training, but also specialist training, continuing education, basic and applied research and high level consultancy and information service. the nearest analogy is the medical school attached to a teaching hospital which, inter alia, gives a high priority to clinical experience with live patients as part of an integrated process of professional formation and development.2 twining observed, somewhat ruefully, that this ideal had not been realised in any western country. the failure to realise the ideal of law schools which integrate the study and practice of law is partly an institutional legacy. traditionally, legal education in english speaking countries has been segmented into discrete stages, involving academic instruction at a university followed by practical legal training after law school. education at law school has consequently often omitted or marginalised legal ethics and practical legal skills such as client interviewing and counselling, the discovery, management and proof of facts, advocacy and negotiation4. 8 journal of clinical legal education june 2002 2 blackstone’s tower: the english law school the hamlyn lectures, 1994, sweet and maxwell, p.52 3 according to the australian law reform commission, “since the 1960's, legal education in english speaking countries generally has been described as being ‘divided into three relatively discrete stages, involving (1) academic training at a university; (2) subsequent practical training with both institutional and in-service components and (3) continuing education.” australian law reform commission managing justice: a review of the federal civil justice system, report no. 89, sydney, 2000 (alrc managing justice) para. 2.7 quoting a description in weisbrot, d. australian lawyers longman cheshire melbourne 1990, p. 124. 4 australian law reform commission ‘review of the federal civil justice system’, discussion paper 62, august 1999 para 3.9. in this context the commission observed that, ‘properly conceived and executed, professional skills training should not be a narrow technical or vocational exercise. rather, it should be fully informed by theory, devoted to the refinement of the high order intellectual skills of students, and calculated to inculcate a sense of ethical propriety, and professional and social responsibility’. alrc managing justice para. 2.85. recent reports on legal education in the united states5, the united kingdom6 and australia7 have encouraged a narrowing of the gap between what is taught in law schools and the knowledge, skills and ethics associated with legal practice. there is an increasing acknowledgment amongst legal educators and practitioners that the traditional separation of theory from practice in legal education is inadequate to the task of law, impoverishing both the education of lawyers and the delivery of legal services.8 increasingly also, many legal educators incorporate the study, appreciation and practice of ethics and justice, as well as the development of basic skills into their curricula.9 law school based public interest advocacy: an australian story 9 5 the american bar association task force on legal education and professional development (‘the maccrate report’) identified core skills and ‘fundamental values’ for lawyers and called upon law schools to address them. the skills identified were: problem solving; legal analysis and reasoning; legal research; factual investigation; communication; counselling; negotiation; litigation and alternative dispute resolution; resolution of ethical dilemmas and administrative skills necessary to organise and manage legal work effectively. the ‘fundamental values’ were dedication to the service of clients; the promotion of justice, fairness, and morality, striving to improving the profession and professional self-development. legal education and professional development an educational continuum ( report of the task force on law schools and the profession: narrowing the gap) american bar association, chicago,1992 (maccrate report) p.66. 6 the first report on legal education and training, the lord chancellor’s advisory committee on legal education and conduct, hmso london april 1996 (‘aclec report’) maintained that lawyers should internalise personal and professional ethical values and standards from the earliest stages of their education and training. the committee suggested that teaching in ethical values should extend beyond a familiarisation with professional codes of conduct and practitioner obligations to the client. in its view the legal profession owes wider social and political obligations to society as a whole, for example, in protecting the rights of minorities and promoting the welfare of the disadvantaged. the committee believed that law students should be made aware of the values that legal solutions carry, and of the ethical and humanitarian dimensions of law as an instrument which affects the quality of life (aclec report paras. 1.19-1.20). aclec urged that legal education and training should ensure that future lawyers fully appreciate ‘the high professional and ethical standards on which our legal system and, indeed our democracy depend’ and the ‘essential link between law and legal practice and the preservation of fundamental democratic values’ (aclec report para. 1.15) . according to aclec, the objective of the education and training of lawyers up to the point of initial qualification should be depth of learning in areas of basic knowledge and generic skills and the development of common professional values (aclec report para. 10). as an example of generic skills development, aclec suggested that legal research skills should extend beyond merely “finding the law”. they should encompass training in taking ‘a problem, often presented in non-legal terms, and through a process of investigation to provide a range of potential legal solutions, each accompanied by an analysis of its benefits and risks to the particular client”. such skills should lie at the heart of what it means to be a lawyer. para. 1.15. 7 the australian law reform commission has suggested that legal educators should consider the need to reorient the traditional approach to legal education which still dominates australian legal education, of ‘what lawyers need to know’, around ‘what lawyers need to be able to do’. the commission has supported moves to diversify australian legal education by the inclusion in law school curricula of practical skills such as ‘training in fact finding, negotiation and facilitation skills, as well as the discrete skills, functions and ethics associated with decision making’. australian law reform commission ‘review of the federal civil justice system’, discussion paper 62, august 1999 paras 3.18 and 3.23. 8 for example, the reports on legal education in canada, the united states and the united kingdom. respectively, arthurs, h. law and learning, report to the social sciences and humanities research council of canada by the consultative group on research and education in law, ottawa, 1984 (the arthurs report); legal education and professional development an educational continuum ( report of the task force on law schools and the profession: narrowing the gap) american bar association, chicago,1992 (‘maccrate report’); first report on legal education and training, the lord chancellor’s advisory committee on legal education and conduct, hmso london april 1996 (‘aclec’). 9 on the jurisprudential, pedagogical and practical tendency to separate ethics and morality from law and the case for incorporating ethics into the modern law school curriculum, see economides, k ethical challenges to legal education and conduct, hart publishing, oxford, 1998. on the positivist tendency to separate law from justice and the case for the modern law school to play a role in equipping future judges and lawyers to understand and deliver justice, see cooper j & trubek l. educating for justice: social values and legal education, dartmouth publishing, aldershot, 1997. legal education has traditionally concentrated on law as rules. the study of legal reasoning at law school is confined almost entirely to reasoning about disputed questions of law, most often explored through appellate court rule making . however, as twining has also observed, “questions of fact deserve as much attention as questions of law” in legal education, scholarship and legal discourse generally.11 isolation of theory from practice and concentration on law as rules, limits lawyers’ knowledge of law. separation of theory from practice has contributed to the continuing failure of law teachers and legal practitioners to “acknowledge that [they] are, in truth, members of a common profession of jurists”,12 and to the frequent failure of legal scholars “to see the common thread between the law of the law school and the law in its practical and social contexts”.13 legal realists were among the first to insist that legal theory, scholarship and teaching should move beyond exclusive attention to legal rules and doctrines.14 legal realism continues to provide theoretical support to bridge the gap between legal theory and practice. but it is not alone. normative legal theorists appreciate that logical and semantic gaps in legal discourse render law uncertain both in concept and application.15 feminist scholars, legal sociologists and others agree that legal rules are 10 journal of clinical legal education june 2002 10 christopher langdell, dean of harvard law school at the end of the 19th century, is credited with devising the case method and convincing generations of law school academics that the proper subject matter of legal education and scholarship was the elucidation of legal doctrine through the study of decided cases. a snapshot of langdell’s view on legal education and scholarship is caught by the following two quotes from his harvard celebration speech ((1887) 3 lqr 123-5). ‘everything you would wish to know can be obtained from printed books’ and ‘what qualifies a person, therefore, to teach law is not experience in the work of a lawyer’s office, not experience in dealing with men, not experience in the trial or argument of causes, not experience, in short, in using law, but experience in learning law’. as cited in brayne, h ‘a case for getting law students engaged in the real thingthe challenge to the saber-tooth curriculum’ (2000) 34(1) international journal of legal education 17, 19. 11 twining, w rethinking evidence: exploratory essays basil blackwell, oxford, 1990. 12 savage, n and watt, g “a house of intellect for the profession” in birks, p (ed) what are law schools for? pressing problems in the law volume 2. oxford university press, 1996. p.47. in australia in the late 80's, the pearce report described the relationship between the legal profession and the legal academy as ‘uneasy’ ( pearce, d et al australian law schools: a discipline assessment for the commonwealth tertiary education commission, australian government publishing service, canberra, 1987 (‘pearcereport’). australian law deans described the relationship as containing ‘an element of tension’ (statement of the australian law deans, appendix 3 of the pearce report para 71.) at the start of a new millenium that relationship, according to the australian law reform commission, ‘has not been advanced by this time, and a more consultative and respectful approach has not yet developed’. alrc managing justice para 2.75. in order to advance collaboration amongst legal educators and practitioners the commission has recommended, amongst other things, consideration of the establishment of an australian academy of law. alrc managing justice paras 2.115-2.128 and recommendation 6. 13 savage, n and watt, g”a house of intellect for the profession” in birks, peter (ed) what are law schools for? pressing problems in the law volume 2 oxford university press, 1996. p.47. 14 oliver wendall holmes, justice of the united states supreme court and author of the common law little, brown, boston, 1881 declared (in dogmatic counterpoint to langdell’s dogma about learning law from books) that ‘the life of the law has not been logic: it has been experience’. oliver wendall holmes (1880) 16 american law review 253 (reviewing langdell’s casebook on contract). holmes viewed law as predictions of what courts will decide rather than law as abstract logical deductions from general rules. jerome frank in law and the modern mind, anchor books, new york, 1963 (first published 1930) and courts on trial, princeton university press, princeton, 1949 insisted that legal teachers and scholars should pay attention to trial court decision making instead of exclusively studying appellate decisions. see also karl llewellyn the bramble bush, ocean publication, new york (first published 1930) , the common law tradition, little, brown, boston, 1960 and jurisprudence: realism in theory and practice university of chicago press, chicago, 1962. 15 for example: hart, hla the concept of law, oxford university press, oxford, 1994; stone, julius precedent and law, butterworths, sydney, 1985; maccormick, n legal reasoning and legal theory, clarendon press, oxford, 1994; habermas, j between facts and norms, polity press, cambridge, 1996. inadequate to explain and predict how cases are decided.16 indeed, legal determinacy and indeterminacy, and the relations between law and facts are central concerns of modern jurisprudential discourse.17 developments in legal education and scholarship, such as those concerned to explore the theory and practice of fact investigation and adjudication in law and the working relationships between law, ethics and justice, have been especially retarded.18 legal education is not only important to law students and their teachers. it plays an essential role in shaping ‘legal culture’, and in determining how well the legal system operates in practice.19 achieving systemic reform and maintaining high standards of performance in a legal system, relies on the development of a healthy professional culture that takes justice and ethical concerns seriously.20 the development of a healthy professional culture should start at law school. inadequate legal education is a sure foundation for inadequate legal service.21 for example, inadequate education and training in advocacy produces poor advocates, and ‘poor advocacy can prolong proceedings, reduce the quality of decision making and increase costs for clients and the courts and tribunals’.22 a concern identified in public inquiries and reports into legal services in australia is that the legal profession “has not contributed as it should have to the practice of justice in australian democracy”.23 some commentators have argued that lawyers should take responsibility for creating institutions in which they address community concerns as a quid pro quo of professional law school based public interest advocacy: an australian story 11 16 for discussion of the role of legal theory in clinical legal education see noone, ma “australian community legal centres-the university connection’ in cooper, j and trubek, l (es) educating for justice: social values and legal education, dartmouth publishing, aldershot, 1977 and goldsmith, aj ‘an unruly conjunction? social thought and legal action in clinical legal education’ (1993) 43 journal of legal education 415. 17 minda, g ‘jurisprudence at century’s end’ (1993) 43 journal of legal education 27. 18 recent works which both reveal and attend to the long standing gaps in legal education and scholarship represented by the failure of law school texts and academic legal writing (including those on evidence and trial advocacy) to deal systematically with fact gathering and proof in legal process include: binder, d a and bergman, p fact investigation: from hypothesis to proof, west publishing co., st. paul., minn. 1984; anderson, t & twining, w analysis of evidence: how to do things with facts, weidenfeld and nicholson, london,1991; moore, a j, bergman, p and binder, trial advocacy: inferences, arguments and trial techniques west publishing co., st. paul, minn.,1996; robertson, ba & vignaux, ga interpreting evidence: evaluating forensic science in the courtroom john wiley 1995; roberts, graham evidence: proof and practice lbc information services, sydney, 1998 (especially chapters 1 &2 on evidence and proof of evidence); burns, r p a theory of the trial princeton university press, new jersey, 1999. 19 alrc managing justice para 2.3. the commission was asked to consider the significance of legal education and professional training to the legal process in the context of reform of the federal civil justice system. see alrc managing justice terms of reference at pp. 3-6. 20 alrc managing justice para 2.3. 21 as mary mcalesse, now president of ireland, but then, professor of law, queens university, belfast has observed: ‘professional formation involves the lifelong honing of skills and deepening of knowledge. those of us involved in professional formation know we are only putting in place a foundation stone which will be built on over a lifetime. but that foundation stone is quite different from every other stone in the edifice. placed well it guarantees a solid structure. placed badly it can support a structure which is not up to withstanding the pressures it will inevitably come under.’ aclec first report on legal education and training report of the proceedings of the conference, london, 8 july 1996 pp.27-34 at p. 33. 22 australian law reform commission ‘review of the federal civil justice system’, discussion paper 62, august 1999 para 3.35. 23 parker, christine ‘justifying the new south wales legal profession 1976 to 1997' (1997) 2 newc lr 1. such reports include: senate standing committee on legal and constitutional affairs the cost of justice: foundations for reform, the parliament of the commonwealth of australia, canberra, 1993; senate legal and constitutional references committee inquiry into the australian legal aid system-third report senate printing unit, canberra 1998. self-regulation.24 others argue that improvements in the regulation and delivery of professional legal services will require ‘nurturing an internal catalyst of change within the profession itself ’.25 others have pointed to the need to encourage lawyers to undertake pro bono legal service and have suggested educational and other initiatives to foster the development of a pro bono culture in the legal profession to achieve this end.26 notwithstanding the recommendations of many reports into legal education, the contentions of many academics and legal practitioners, and the teachings of many divergent schools of modern jurisprudence, many law schools continue to maintain their distance from the practice of law . only recently have some australian law schools become involved in the direct provision of practical legal training, mainly in the form of ‘add-on’ programs available after the completion of the llb degree . only a few have attempted to integrate practical legal skills and legal ethics within the basic law degree program . most australian law schools have not only omitted practical skills from their curricula but have also failed to actively support and encourage their academic staff and students to participate directly in the legal process.30 many academics have made important contributions to law reform by way of submissions, and sometimes by membership of law reform agencies. others have made significant contributions to test cases in appellate courts. countless law school academics and students have supported community legal centres through their individual labour. some law schools co-operate with community legal centres in the provision of client clinics that students may elect to participate in under supervision for academic credit.31 however, most australian law schools have not encouraged staff and student participation in legal practice as an integral part of their teaching and research programs. 12 journal of clinical legal education june 2002 24 parker, stephen islands of civic virtue? lawyers and civil justice reform, inaugural professional lecture, griffith university brisbane 1996 p.42-25 and parker, stephen ‘ competing images of the legal profession: competing regulatory strategies’ (1997) 25 international journal of the sociology of law 385-409. 25 parker, christine ‘justifying the new south wales legal profession 1976 to 1997' (1997) 2 newc lr p.24. 26 the centre for legal process, law foundation of new south wales future directions for pro bono legal services in new south wales 1998. initiatives suggested by the centre included, ‘visible participation in pro bono work by law academics and prominent members of the legal profession, in order to provide role models for law students and junior members of the profession, ...[including] involvement in...major cases or projects’, and ‘the introduction of the subject of pro bono work at an early point in the law school curriculum, including the opportunity to participate in pro bono services’. principle 9 27 in australia ‘practical legal training has largely been the preserve of the professions, whether delivered directly through articled clerkships (for solicitors) or pupillage programs (for barristers), or through specially designed institutional courses of instruction’ alrc managing justice para. 2.9 on the history of the division between academic and professional legal education see hepple, b a ‘the renewal of the liberal law degree (1996) 55 cambridge law journal 470. 28 alrc managing justice para. 2.9 providing the examples of such ‘add-on’ programs at wollongong university, uts, queensland university of technology, bond university and monash university. 29 newcastle law school is the pioneer of such integration in australia. flinders university has also recently integrated practical legal training courses into its undergraduate law program. the stated rational for the flinder’s step is contained in alrc managing justice para. 2.112 note 142a stewart submission 327. 30 likewise, as hugh brayne has observed in relation to the united kingdom, ‘engaging students in the experience of law has not been a mainstream tradition in our law schools’. brayne, h ‘a case for getting law students engaged in the real thingthe challenge to the saber-tooth curriculum’ (2000) 34(1) international journal of legal education 17. 31 australian law reform commission ‘review of the federal civil justice system’, discussion paper 62, august 1999 para. 3.10. examples of such co-operation are: the university of new south wales with the kingsford legal centre in sydney; monash university with the springvale legal service in melbourne. murdoch university operates the rockingham legal centre in western australia. see alrc managing justice para. 5.203. see also giddings, j ‘a circle game: clinical legal education in australia’ (1999) 10 (1) legal education review 33. by contrast, newcastle law school, one of australia’s most recently established law schools, ‘completely integrates classroom and clinical training at the undergraduate level, effectively merging the first two stages of traditional education and obviating the need for subsequent practical legal training’.32 newcastle also provides for staff and student participation in legal process, including public interest advocacy. narrowing the gap between law school and practice: the newcastle endeavour for some years, australian law schools have accepted that their dual mission was to provide (or contribute to, in the case of combined degrees) a broad liberal education,33 as well as to provide a basic grounding for those entering the profession... in the united states, ‘live client’ clinical programs, usually focusing on community legal centre/poverty law type practice, have been widely used by law schools to supplement classroom instruction on substantive law, and to provide students with an appreciation of the nature of ‘law as it is actually practised’ -including the social dimension and the ethical dilemmas which may arise. virtually every accredited american law school operates a substantial clinical practice program, and some have a range of programs which cater for specialist interests (such as environmental law, criminal appeals, civil liberties, children, and so on).34 .... in australia, the much lower level of resources available to law schools has meant that only a handful of law schools run clinical programs -and only the university of newcastle allows students to undertake a fully integrated clinical degree program rather than simply an elective unit.35 as ‘a clinical law school’, newcastle seeks to integrate learning of the theory and practice of law.36 curriculum and research, people and partnerships, are the keys to integration.37 the critical aspects of integration at newcastle are: the inclusion of generic skills, ethical ideals and jurisprudence in the core undergraduate law program; the creation of the university of newcastle legal centre, the development of its partnerships with other legal service providers and the law school based public interest advocacy: an australian story 13 32 australian law reform commission ‘review of the federal civil justice system’, discussion paper 62, august 1999 para. 3.12 33 alrc managing justice para. 2.17 and see the statement of australian law deans, attached as appendix 3 to the pearce report. 34 alrc managing justice para. 2.18 35 alrc managing justice para. 2.19. according to the australian law reform commission ‘the other law schools with elective clinical programs which involve operation of a community legal centre (and receive substantial commonwealth funding) are the universities of new south wales, monash, murdoch and griffith. the university of western australia is currently operating an experimental program, with the encouragement of the wa supreme court, which involves law students assisting (under supervision) with criminal appeals in cases in which legal aid is not available or insufficient. other law schools, for resource and pedagogical reasons, have chosen to develop placement programs rather than clinical programs; for example, wollongong and sydney. many law students also are volunteers with community legal centres.’ alrc managing justice para 2.19 endnote 30. 36 the founding dean of newcastle law school described its program in the following terms: ‘in the past the three traditional; methods of professional legal trainingtheoretical learning, skills training and experiential learning-have been undertaken sequentially. in our llb course theory and skills are taught at the same time. we have a clinical law school. constant exposure to simulated exercises and legal practice permits students to test and extend their legal knowledge whilst developing skills ranging from legal research to negotiation and advocacy’. rees, n ‘a clinical law school’, university of newcastle centre for advancement of learning and teaching newsletter, february, 1990 no. 6 p.2 37 the australian law reform commission recently commended newcastle=s approach to legal education, commenting that it represented a, “ good example of.... properly conceived and executed professional skills training….[which] should be fully informed by theory, devoted to the refinement of the high order intellectual skills of students, and calculated to inculcate a sense of ethical propriety” managing justice: a review of the federal civil justice system, report no. 89, sydney, 2000, australian law reform commission para. 2.85 integral role of the centre and its partners in the delivery of the law school’s teaching and research program; the availability of a ‘professional program’ as a course of study, skills development and clinical placement to law students in the undergraduate law program; the provision of opportunities for voluntary (pro bono) legal practice at the university of newcastle legal centre for law students; and the inclusion in the elective program of applied legal subjects which emphasise skills development, including public interest advocacy.38 the curriculum and research program when the faculty of law at newcastle was established a group of its founding academics encouraged the university to embark upon a clinical legal education program.39 the faculty offers two undergraduate llb streams40a degree stream (llb) and a professional program stream (llb/diploma of legal practice). a core program is undertaken by students in both the degree and professional program streams.41 the professional program, completed over the final two years of undergraduate study, earns students an llb degree and a diploma of legal practice and entitles them to apply for admission to legal practice without the need for further practical training. the program integrates legal learning, skills and clinical placement. students who take this program undertake clinical placement at the university of newcastle legal centre, the legal aid commission or the many rivers aboriginal legal service, and may undertake placement with a private legal firm or public law office. the professional program at newcastle is currently the only fully integrated clinical degree program available in australia. legal research at newcastle includes clinical research involved in public interest cases. clinical research, evolving out of academic, practitioner and student planning for and reflection upon individual cases, is a critical part of the dynamic of public interest advocacy.42 research enhances not only the quality of the advocacy of an individual case but also the prospects of achieving more general reform outcomes, and takes many forms.43 14 journal of clinical legal education june 2002 38 for example, the subjects forensic analysis and legal practice, public interest advocacy, law review and advanced legal research and writing. 39 the faculty of law at newcastle, established in 1992, admitted its first students in 1993, and undertook its first public interest case in 1995 (the leigh leigh case, as to which see later). the school’s foundation dean, professor neil rees, came with a background in clinical legal education and the development of legal centres associated with law schools and with experience as a solicitor in public interest practice. dean rees and his founding colleagues were instrumental in the establishment of newcastle as ‘a clinical law school’. 40 the faculty offers its llb degrees to undergraduates as part of a combined degree (at the time of writing there were six combined degrees: arts, science, economics, commerce, business and science (forensic). graduates may undertake an llb as a stand-alone degree. 41 the core program, commencing with legal system and method, a ‘building block’ skills and techniques subject, and containing other foundation law subjects (criminal law and procedure, torts, contracts, and property law), has several related aims. these include, imparting substantive legal content, providing an introduction to essential legal concepts, principles, ethical ideals, techniques, approaches, and generic problem solving methods and techniques. inculcating an interest in the functions of law in its various contexts and enhancing student appreciation of law through a study of jurisprudence. 42 as simon rice has observed, from an educational standpoint, clinical case research requires students to consider the impact of legal rules and provides an opportunity to consider values in law and law in society issues. because it derives from but is not limited to legal action taken on behalf of an individual client, clinical project work can demonstrate for students the extent to which law can serve broader interests than those of the individual and its political and social impact. rice, s a guide to implementing clinical teaching method in the law school curriculum centre for legal education, sydney, 1996 pp.28-29. 43 these forms include written submissions to courts, tribunals, law reform agencies and other public bodies. books and chapters in books. research papers and theses. articles and case-notes in law journals, including clinical law journals. community legal education, including article and feature writing in newspapers, and participation in television documentaries and radio current affairs programs. staff and students upon the foundation of its law school newcastle university formulated a recruitment profile for the school’s academic staff that would support the delivery of an integrated clinical program. staff were chosen from a mixture of academic and practical backgrounds. some staff came from pure academic backgrounds; others had a combination of academic and practice backgrounds; others had purely legal practice backgrounds. staff with a background of practice were encouraged to continue to practice in order to enhance the faculty’s teaching and research programs. pure academic staff were encouraged to collaborate with those working in the clinical teaching and research programs. the inclusion of practising lawyers, both solicitors and barristers, as academic members of the law school, was an essential step in providing newcastle’s clinical program.44 their proven ability to practice, their skills and experience, and their knowledge of and connection to ‘law jobs’45 were essential to support the clinical program. the faculty was founded on the policy that clinical staff of the centre should be members of the academic staff of the law school and their distinctive teaching and research efforts should be recognised equally with those of mainstream academic staff.46 the faculty’s core of full time teachers was complemented by parttime clinical teachers drawn from the judiciary and the profession. law schools are often depicted as training schools for anti-social, or at least selfinterested, legal practice. they are often seen as training grounds for an elite who go on to earn enormous salaries serving commercial interests rather than engage their skills in the pursuit of justice and the public interest.47 law school based public interest advocacy: an australian story 15 44 those recruited to newcastle’s ‘clinical law school’ include former and current members of federal and state courts or tribunals, a senior criminal trial barrister, partners and solicitors in private and public law firms and government law offices such as the director of public prosecutions. 45 in the sense employed by karl llewellyn and other legal realists. llewellyn saw law as consisting not just of rules but of institutions and people carrying out ‘law jobs’, in which techniques and methods engaged in the application of rules are as important to the understanding and operation of law as the rules themselves. and in which values and ideals are at work, often undetected by the uninitiated, in the creation or buttressing of rules. in this context those ‘uninitiated’ into ‘law jobs’ included not just law students but the traditional academic teachers who taught them. see, for example, llewellyn, k the bramble bush (1930) (1951), and the common law tradition (1960). 46 however, equal recognition of the value of the work of clinical legal staff, in terms, for example, of tenure and promotion, remains problematic. 47 see economides, k ‘cynical legal studies’ in cooper, j and trubek, l (eds) educating for justice: social values and legal education, dartmouth publishing, aldershot, 1997. some scholars like harvard’s duncan kennedy argue polemically that law schools serve as ‘ideological training for willing service in the hierarchies of the corporate welfare state’, kennedy, d ‘legal education and the reproduction of hierarchy’ 1982 journal of legal education 32. others like louise trubek lament that mainstream and traditional law schools are insufficiently concerned with ethics, justice, and public interest and are dominated by a ‘myopic cynical positivism’ which encourages law students to focus almost exclusively on their own subjective careers. see cooper, j and trubek , l ‘social values from law school to practice: an introductory essay’ in cooper j and trubek l (eds) educating for justice: social values and legal education, dartmouth publishing, aldershot, 1997. there is a considerable body of legal educational literature and empirical research that suggests that the overall effect of law school is to inculcate cynicism about legal ideals and even to reorient students’ personal values and commitment.48 the literature contains many reports of students who come to law school with ideals of doing justice but who fail to follow their ideals through in their course choices, career choices, and, ultimately, in the attitudes and approaches they bring to their chosen legal work.49 public interest advocacy at newcastle developed, in part, in response to traditional law school practices that impart or compound legal cynicism. it engages law students to provide access to justice and encourages their deeper consideration of the relationship between law and justice. student interest in and commitment to public interest case work at newcastle is generous and sustained. partnerships with the profession the university of newcastle legal centre has grown from seeds sown by community legal centres.50 it shares many of the aspirations and methods of these centres. however, the newcastle centre holds a distinctive place in both the public interest practice of law and legal education in australia. established as a centerpiece of the university’s undertaking to provide integrated teaching and research programs in law and practice, it is truly a law school based legal centre. newcastle law school has extended and consolidated its clinical program through collaboration with the legal aid commission of new south wales and the many rivers aboriginal legal service. lawyers employed by the commission and many rivers work alongside lawyers from the centre to provide legal aid services to the community and act as clinical supervisors to law students who assist them with their cases.51 many people come to the centre with complaints of injustice. 16 journal of clinical legal education june 2002 48 some of this literature is reviewed by adrienne stone in ‘women, law school and student commitment to the public interest’ in cooper, j and trubek, l (eds) educating for justice: social values and legal education, dartmouth publishing, aldershot, 1997 pp. 58-61. the literature includes the following: rathjen, g `the impact of legal education on the beliefs, attitudes and values of law students' [1976] 44 tennessee law review 85; stover, r. v making it and breaking it. the fate of public interest commitment during law school, univ. of illinois press, urbana, 1989; kubey, c ‘ three years of adjustment: where do your ideals go?’ juris doctor december 1976 p. 34; erlanger, h. and klegon, d. (1978), ‘socialising effects of professional school: the law school experience and student orientations to public interest concerns' (1978) 13 law and society review 11; erlanger, h, epp, c, cahill, m. and haines, k. ‘law student idealism and job choice: some new data on an old question', (1996) 30a law and society review, 85; reidel, c ‘public interest law: a growing commitment: a shrinking market national (1996) jurist 38; gunier, l et al (1994) ‘becoming gentlemen: women’s experience at one ivy league law school” (1994) 143 university of pennsylvania law review 1; homer, s and schwartz, l (1990) “admitted but not accepted: outsiders take an inside look at law school” (1990) 5(1) berkeley women’s law journal 31; granfield the making of elite lawyers: visions of law school at harvard and beyond routledge, new york, 1992. 49 for example, the predominant answer to the question about how law school had influenced their values, in the pearce report's survey of australian law graduates ,was that it made them `more cynical' (54%). this was followed by `more practical' (52%), and `more politically aware' (39%). only 10% of graduates reported that legal education made them `more idealistic’. pearce, d et al australian law schools: a discipline assessment for the commonwealth tertiary education commission agps canberra 1987, appendix 5,195, table 5.19 (pearce report). as noted in alrc managing justice para 2.3 note 6. 50 including legal centres attached to or associated with law schools (like fitzroy, kingsford, springvale) and independent centres (like, the public interest advocacy centre (piac), based in sydney). see, basten, j, graycar, r and neal, d ‘legal centres in australia (1985) 7 law and policy 113; chesterman, j poverty law and social change: the story of the fitzroy legal centre, melbourne university press, melbourne, 1996. 51 the commission and the indigenous legal service established a collaborative legal service, research and education effort with newcastle law school in 1996. many receive assistance. however, resources are limited and its educational objectives mean that only some cases can be undertaken as public interest advocacy cases.52 public interest advocacy at newcastle law school public interest advocacy is taught and practised at newcastle law school as a form of clinical legal education.53 at the heart of clinical legal education is a real client. it is the presence of a real client that distinguishes clinical legal education both from traditional legal education, which may often be conducted without any reference to a ‘client’, and from practical legal skills training, which hypothesises or simulates client situations.54 clinical legal education exposes students to real, factual problems requiring real solutions. as hugh brayne has observed, ‘good judges and good lawyers use a combination of legal knowledge, analytical powers, insights, experience, and understanding of human nature to make difficult decisions in a practical and wise way.’.55 law students engaged in public interest advocacy gain personal experience of the impact of law on individuals. under the collaborative guidance and supervision of academics and practitioners, students who learn by assisting others construct a foundation for personal growth towards becoming ‘good lawyers’. public interest advocacy at newcastle brings together a team of academics, practitioners and law students to work on individual cases that raise fundamental concerns about the administration of justice. given the educational and research missions of the university, public interest advocacy at the law school has a number of related objectives, including encouraging student learning, inspiring research and analysis, and promoting improvements in the law. law school based public interest advocacy: an australian story 17 52 at newcastle, cases are assessed in the light of the justice and educational objectives and values discussed in this paper. by way of comparison, at harvard law school, alan dershowitz considers the following matters when deciding whether to accept a case: ‘is the case likely to raise important issues of a general nature?’; ‘whether i can make effective use of my students’; ‘whether my academic skills will add a special dimension to the defense’. according to dershowitz, the o j simpson trial in which he was involved met all these criteria and provided one additional factor. dershowitz surmised that the simpson case ‘would become the vehicle by which a generation of americans would learn about the law’. dershowitz’s disavowal of other factors and his reasons are worth quoting in full. according to dershowitz, in deciding whether or not to take on a case (including the simpson case) he does not consider a potential client’s ‘popularity, unpopularity, or controversial nature; his wealth or poverty; and his prospects of winning or losing. because i am a professor with tenure, i believe i have a special responsibility to take on cases and causes that may require me to confront the powers that be-the government, the police, prosecutors, the media, the bar, even the university. the lifetime guarantee of tenure entails the responsibilities to challenge the popular and defend the unpopular’. dershowitz, a reasonable doubts: the o.j. simpson case and the criminal justice system at pp 25-26, simon & schuster, new york, 1996. see further dershowitz, a the genesis of justice warner books, new york, 2000 at pp. 89-92. 53 important accounts of clinical legal education include: jerome frank ‘why not a clinical lawyer school?’ (1933) 81 university of pennsylvania law review 907; barnhizer, dr ‘the clinical method of legal instruction: its theory and implementation’ (1979) 30 journal of legal education 67; amsterdam, clinical legal education--a 21st century perspective, (1984) 34 journal of legal education 612 ; campbell. s ‘blueprint for a clinical program’ (1991) journal of professional legal education 121; symposium ‘the many voices of clinical legal education’ (1994) 1 (1) clinical law review 1; rice, s a guide to implementing clinical teaching method in the law school 1996 centre for legal education ; symposium ‘fifty years of clinical legal education’ (1997) 64(4) tennessee law review; brayne, h, duncan, n and grimes, r clinical legal education blackstone press 1998. 54 as simon rice has observed: ‘it is the student participation in the complexity of the lawyer/client dynamic which offers opportunities for achieving the various clinical legal education goals and which gives the clinical method its unique character’ rice, s a guide to implementing clinical teaching method in the law school 1996 centre for legal education p.10. 55 brayne, h ‘a case for getting law students engaged in the real thingthe challenge to the saber-tooth curriculum’ (2000) 34(1) international journal of legal education 17, 26. the suitability of a case for public interest advocacy at newcastle is assessed according to a matrix of considerations. typically, supervisors ask whether a case is likely to: confront students with a real case of injustice which will challenge them to fashion effective legal responses; demonstrate the practical contribution which lawyers can make to fundamental democratic and legal values, including the protection of individuals and groups from the abuse of public and private power;56 stimulate research and learning of substantive law , reinforce traditional student skills,58 foster practical legal skills, and cultivate qualities required of ‘good lawyers’59; and encourage students to reflect upon the moral and ethical dimensions of law and how law ought to be practised. students undertake public interest advocacy either as volunteers (pro bono), or on clinical placement with the legal centre as part of the professional program, or enrolled in “public interest advocacy”, an optional subject in the llb program. each student is engaged on an individual public interest case as part of a team, under the supervision and guidance of a clinician and an academic co-ordinator. each student member of a public interest advocacy team engages, in different ways, with the client and with fact gathering and analysis, legal research, case-management, preparation of ‘pre-trial' materials (including the formulation of case theories and issues and relevant and probative lines of examination and cross-examination), ‘trial’ presentation (including the formulation of opening and closing addresses and written submissions) and follow up. some students instruct in court during a hearing, others are engaged in formulating questions as the hearing progresses, and reviewing the evidence at the end of each hearing day, and formulating final submissions. the cases public interest teams at newcastle have undertaken a number of cases, including the leigh leigh case, the eddie murray case, the eastman cases,60 a justice program in east timor,61 and, most recently, the roni levi case.62 18 journal of clinical legal education june 2002 56 first report on legal education and training, lord chancellor’s advisory committee on legal education and conduct, hmso london april 1996 (aclec report) para 2.4 57 brayne, h, duncan, n and grimes, r clinical legal education blackstone press 1998 contains student feedback indicating improvement in understanding and performance in other legal subjects by students taking a clinical option. 58 traditional legal teaching presents students with only hypothetical or decided cases, usually in discrete and pre-determined legal categories. by contrast, clinical method extends student knowledge and traditional skills, like extracting rules from cases, distinguishing precedents and interpreting statutes, by requiring a student ‘to sift through a number of legal categories, testing knowledge of each, before being able to resolve a problem.’ rice, simon a guide to implementing clinical teaching method in the law school 1996 centre for legal education p.27 59 including a capacity to handle conflict constructively, an ability to seek and use feedback from clients, an aptitude for clear-headed reasoning under pressure, an appreciation of other actor’s standpoints, and a sense of responsibility brayne, h ‘a case for getting law students engaged in the real thingthe challenge to the saber-tooth curriculum’ (2000) 34(1) international journal of legal education 17, 21-29. see also: henderson, l ‘the dialogue of heart and head’ (1988) 10 cardozo law review 123; watson a s ‘some psychological aspects of teaching professional responsibility (1963) 16 journal of legal education 1. 60 the centre undertook two related high court appeals on behalf of david harold eastman, convicted in 1995 for the murder in 1989 of the australian capital territory assistant commissioner of police colin stanley winchester. see re governor, goulburn correctional centre; ex parte eastman (1999) 73 aljr; 165 alr 171 (an unsuccessful high court challenge to the legality of the trial based on a claim that the trial judge was not validly appointed); eastman v the queen [2000] hca 29 (a claim, rejected 4/3 by the high court, that the trial miscarried because eastman was unfit to plead, instruct counsel and defend himself, because of mental illness). 61 the project in east timor to train representatives of non-government organisations in war crimes investigation and evidence gathering was sponsored by the catholic aid agency, caritas australia. 62 the work of the centre on public interest cases has regularly drawn the attention of national, state and local media and featured in media such as, the australian higher education supplement, the sydney morning herald magazine good weekend, insight (sbs television), the 7.30 report and australian story (abc television). the centre represented robyn and jessie leigh, mother and sister of leigh leigh, a fourteen year old newcastle schoolgirl, sexually assaulted and murdered at a teenage beach party in november 1989. acting upon a report prepared by the centre on behalf of the leigh family, the nsw minister for police announced in parliament in october 1996 that the new south wales crime commission would conduct a review of the police investigation into the leigh leigh case.63 the crime commission and, subsequently, the new south wales police integrity commission, revealed significant investigative failures in the case, recommended disciplinary action in relation to the officers involved and the introduction of reforms in investigative procedures relating to serious crime. the centre also represented arthur and leila murray, the parents of eddie murray, an aboriginal footballer. at the age of twenty one, eddie was found dead, hanging in a police cell at wee waa, in june 1981. eddie murray's death was one of the cases reviewed by the royal commission into aboriginal deaths in custody in 1987. work over a number of years by a newcastle public interest advocacy team resulted in the exhumation of murray’s body in 1997 by the new south wales state coroner. an additional autopsy revealed a previously unidentified and unexplained fracture to murray's sternum. the murray case was referred recently by the new south wales government to the police integrity commission and is currently under active investigation by the commission. the centre is currently representing, amongst others, the families of five young women who went missing in the late 1970's and the family of a young unarmed maori man fatally shot by police in sydney in february 2000. the work of the centre on missing persons lead to the establishment by the new south wales police service in 1997 of its largest ever investigative strike force to re-investigate the disappearance of the young women. the disappearance of the young women is currently the subject of an inquiry by the new south wales state coroner. a number of reports and submissions to courts, tribunals, government and government agencies have resulted from the work undertaken by the centre in these public interest cases. these reports include those on: the murder of leigh leigh and its investigation by police;64 the death in custody of eddie murray and its investigation by police and the royal commission into aboriginal deaths in custody;65 the unresolved disappearances of a number of missing persons in the sydney and hunter regions and their investigation by police ; and, most recently, the police shooting of roni levi and its investigation by police, the state coroner and the police integrity commission.67 the reports have sought redress of individual injustice, exposed failures in legal fact gathering and analysis and laid the ground for more general reform.68 law school based public interest advocacy: an australian story 19 63 the minister told parliament that, “newcastle legal centre has worked tirelessly on this case and, for the last few months with the assistance of the nsw police, mrs leigh=s lawyers have painstakingly sorted the existing police evidence and the result is a 300 page report which raises some alarming questions.” 64 cavanagh, r, boersig, j and watterson, r the murder of leigh leigh november 1989 a forensic report (1996). 65 cavanagh, r and pitty, r too much wrong report on the death of edward james murray (1997). 66 missing persons in the hunter region a submission to nsw minister for police (1997). 67 watterson, r, boersig, j, cavanagh, r and hughes, c a very public death: the police shooting of roni levi bondi beach saturday 28 june 1997 (1998). 68 the leigh leigh report, the eddie murray report and the missing persons submission provided the bases for police, coronial and governmental reconsideration of unresolved disappearances and of deaths previously considered resolved. a very public death and other submissions by the centre relating to the shooting of roni levi have been the subject of public inquiry by the new south wales police integrity commission. the levi case is discussed in detail later in this article. the common cause of injustice in the public interest cases conducted by the centre is investigative failure. according to jeremy bentham, “the basis of justice is evidence”.69 many cases of injustice occur because legal process fails to discover the full facts or because false facts are accepted by it as true. justice can only be done when the facts are truly known. correct application of the law to produce justice depends on sound and reliable fact gathering and evaluation. not even the most rigorous examination of facts at trial, nor flawless legal analysis on appeal, can rectify flawed or inadequate pre-trial investigation of the facts.70 the contribution of law school based public interest advocacy to the exposure of flawed investigation, leading to systemic change in legal process is exemplified by the levi case. public interest advocacy and the police shooting of roni levi the shooting and its investigation french photographer roni levi was shot and killed on bondi beach by constable rodney podesta and senior constable anthony dilorenzo, police officers stationed at bondi police station, at approximately 7.30 am on saturday morning 28 june 1997. during the evening before his death, with the help of some friends, levi presented at st vincent’s public hospital, darlinghurst, in a confused state. levi had no history of drug or alcohol abuse, violence or psychiatric illness.71 he was diagnosed by doctors at st vincent’s as suffering from borderline delusional thought processes and admitted as a voluntary patient for neurological and psychiatric investigation. before such investigation could be completed, and still apparently in a confused state, levi left the hospital in the early hours of the saturday morning. by some means, still unknown, levi travelled from the hospital to his flat near bondi beach. around six a.m, when his flatmate opened the front door to let him into the flat, levi was swaying and unsteady on his feet. his flatmate asked levi what was wrong but levi did not respond. instead he went to his own room, obtained a coat, and left the flat. about twenty minutes later, he returned. this time when his flatmate opened the door levi walked into the kitchen and picked up 20 journal of clinical legal education june 2002 69 jeremy bentham the rationale of judicial evidence, garland publications, new york, 1978 (reprint of 1827 ed. published by hunt and clarke, london). 70 the royal commission into aboriginal deaths in custody pointed out that ‘in many respects the quality of coronial inquires is shaped by the quality of the initial police investigation’, and made the powerful and telling observation that even rigorous examination at a coronial inquiry cannot rectify inadequate or flawed police investigation royal commission into aboriginal deaths in custody, national report volume 1 para. 4.2.26. 71 the opening statement by counsel assisting the coroner at the inquest into levi’s death contains the following description of levi’s background: ‘the deceased died on 28 june 1997. he was born on 6 january 1964 at ashcalon, israel and was the eldest of five children. the evidence discloses that he was interested in fine arts, painting and photography when at school and that after leaving school, he went to a photographic college. he was a vegetarian, he didn't drink alcohol other than on special occasions, nor did he drink tea or coffee. he didn't smoke and he didn't, it is said, use illicit drugs. at the time of his death, he was not on any medication and he was a person who frequently meditated.’... [those who knew him] describe levi as, variously, ‘health conscious, very energetic, gentle, quietly spoken, polite, quiet, subdued, calm, mild mannered, well mannered, caring, sensitive, someone who never was angry, never lost his temper, never raised his voice, not intimidating, nice, wouldn't have hurt a fly, not physically brave, wouldn't fight, not aggressive.’.... ‘he's also described as having a sense of humour and lastly, the evidence discloses... that he was never violent nor was he known to be suicidal.’ inquest into the death of roni levi, transcript monday 9.2.98 at pp.5-6. a kitchen knife. the flatmate ran outside, and shortly thereafter, to the nearby bondi police station to alert police.72 a senior sergeant, podesta, dilorenzo and another other bondi police officer set out to search for levi in three separate vehicles. podesta, dilorenzo and the other officer spotted levi near bondi beach at about five past seven, and chased him down the beach and into the water. the senior sergeant did not join his men on the beach but set up a ‘command post’ to oversee the situation from the promenade, overlooking the beach. not long after he set up his post, the senior sergeant was joined by a fifth bondi officer and two officers from paddington who had heard a call for assistance on the radio in their patrol van. these three officers joined podesta, dilorenzo and the other bondi officer on the beach with levi. at times levi was fully immersed in the surf. at other times the police on the beach and the senior sergeant on the promenade could see that levi was pointing the blade of the knife towards himself. when he saw that levi might harm himself with the knife the senior sergeant on the promenade called for an ambulance. police on the beach surrounding levi later called for police negotiators. after a time levi emerged from the water on to the beach. he walked up and down the shoreline shadowed by police who at times had their pistols drawn.73 police repeatedly called upon levi to drop the knife. according to police accounts they were positive but firm. according to civilian eyewitnesses they were much tougher and direct. ‘put down the knife you fucking dickhead’. and to a female jogger who inadvertently came near, ‘fuck off ’.74 all the officers confronting levi formed the impression that he was mentally unstable and not communicating rationally. one said that they thought that levi ‘might've lost the plot’.75 law school based public interest advocacy: an australian story 21 72 no civilian claimed to have been threatened by levi with the knife. the evidence of the police officers involved in the incident agreed that levi did not directly and immediately threaten any civilian with the knife. rather, the evidence of the police officers involved in the incident and some civilian eye witnesses is that levi was regarded as posing a threat because he was carrying a knife which he sometimes waved, pointed or jabbed at police and which he failed to drop in face of police demands to do so. 73 the evidence of some of the incident police adduced at the inquest but not contained in their statements is that, after he emerged from the water, levi’s coat was at most times during the incident off his shoulders. the evidence of most civilians is to the same effect. the photographs of the incident taken by jean pierre bratanoff-firgoff support this (as to which see later). 74 the police evidence in this respect is directly contradicted by the testimony of one significant eye witness and thrown into doubt by the evidence of another. in a statement john william durack sc, a civilian eye witness of the incident said that ‘at one point [levi] walked purposefully again towards the police, in a threatening fashion and i heard at least two of the police calling out in an aggressive fashion ‘drop the knife, drop the knife, you fucking deadshit’ (or ‘dickhead’ or similar expression) as they backed away from him’. [statement of john william durack sc, levi inquest-brief of evidence vol 3 at para 13.]. durack’s evidence in this respect was repeated at the inquest and was not challenged at the inquest. the evidence of karen anne allison, a jogger who came close to the incident in its early stages is that one of the incident police officers told her to ‘fuck off ’ [statement of karen anne allison, levi inquestbrief of evidence vol 3 at para 12.] ms. allison’s evidence on this was not seriously challenged or weakened at the inquest. 75 one of the officers on the beach, constable geoffrey smith, gave evidence at the inquest that there was some sort of reference amongst police on the beach ‘to the fact that he might’ve lost the plot’ [levi inquest transcript 4.3.98 p. 43]. another said he reminded him of a mentally ill patient he once had to deal with.76 one officer called to levi ‘let's go up the beach and have a talk. no one is going to hurt you’.77 still levi did not respond. another officer attempted to strike levi’s arm to dislodge the knife with a baton. levi started to move in a westerly direction towards the promenade. the police attempted to contain levi by forming a semi-circle around him with their pistols drawn. the same officer again tried to strike levi with a baton, and again missed. levi kept advancing towards the promenade with the police surrounding him. the police dealing with levi were each equipped with guns. however, they had only two ‘long' batons between them and they did not have capsicum spray. police authorities had for some years been considering equipping officers with capsicum spray and replacing ‘long’ batons with extendable batons. capsicum spray can be used to disable a person. ‘long’ batons are cumbersome and carried in police vehicles, not as part of an officer’s personal equipment. ‘long’ batons were often left behind in the heat of the moment. for this reason extendable batons, lighter, portable, and designed to be worn alongside a gun on an officer’s belt had been under consideration but were still not in use by the new south wales police service at the time of the bondi incident. all the officers on bondi beach left their ‘long’ batons behind in their vehicles. during the incident, as an afterthought, one of the officers returned to the senior officer at the command post on the promenade and collected two batons from the five police vehicles parked there to take down on to the beach. this officer was the only officer who engaged a baton in an attempt to deal with levi. the senior sergeant on the promenade could communicate by radio with the officers on the beach to give advice or receive their requests for assistance and with command headquarters to obtain any additional assistance to deal with the situation. however, throughout the incident, the senior sergeant did not communicate with his officers on the beach. police negotiators, especially trained to deal with difficult situations, were not called until 7.21 am, but were expected to arrive within minutes of that call. just as the officer with a baton was going in for a third attempt to dislodge the knife from levi, podesta and dilorenzo fired four shots. it appears that podesta, the most inexperienced officer facing levi, fired first. his first shot hit levi in the chest, his second shot hit levi in the lower back, when levi was facing away from him. dilorenzo’s shots hit levi in the chest. when they fired their guns podesta and dilorenzo were facing levi with their backs towards the promenade. levi was shot about thirty metres from the promenade at about 7.30 am, some ten minutes after negotiators were first alerted by police central communications to go to bondi beach. the whole incident lasted about thirty five to forty minutes.78 22 journal of clinical legal education june 2002 76 one officer who observed levi turn the knife on himself and squeeze it into his stomach also that levi’s eyes were ‘extremely glazed and open’ and commented that ‘he appeared to me to be psychotic.’ statement of senior constable john lewis jones, levi inquest-brief of evidence, vol. 4 para. 12. another officer observed that levi’s eyes ‘seemed glazed over’, and commented that ‘it was a similar look that i have seen in mentally ill persons i have detained previously.’ statement of senior constable grant russell seddon, levi inquest-brief of evidence, vol. 4 statement para 11. another officer gave evidence at the inquest that when dealing with levi on the beach it had crossed his mind that levi was suicidal [constable christopher john goodman-levi inquest transcript 4.3.98 p. 25]. in his statement constable geoffrey smith described levi as having ‘opened his mouth, stuck his tongue out and made loud gargling noises.’ [statement of constable geoffrey smith, levi inquest-brief of evidence, vol. 4 para 8]. all officers agreed that levi made only such ‘gargling’ noises and did not speak to them or utter a coherent word during the whole of the incident. 77 statement of senior constable john lewis jones, levi inquest-brief of evidence, vol. 4 para.12. 78 the duration of the incident measured from the time levi’s flatmate first alerted police (at some five to ten minutes before 7.00 am) until police discharged their fire arms at levi (at about 7.30 am.) the police officers who witnessed podesta and dilorenzo fire at levi gave estimates to the coroner of the distance between the shooters and levi ranging from two to three metres. many of the thirty nine civilian eye witnesses estimated that distance to be three metres or more. a police crime scene examiner arrived on the beach within minutes of the incident. he determined the location of the shooters from discussions with one on the officers involved in the incident immediately after it had occurred and while that officer was still on the beach. he determined levi’s location from his observations of disturbed sand, levi’s blood stains in the disturbed sand and the nearby location of the knife which had been dislodged from levi’s hand after he was shot. he estimated that podesta and dilorenzo had been 5.2 metres from levi when they discharged their firearms. but this estimate by the crime scene examiner was relegated to his notebook, and not included in his statement to the coroner. only two of the thirty nine civilian eye witnesses described levi as “lunging” or otherwise attacking the two officers when they shot him. but each of these witnesses had been interviewed by bondi police officers who were close colleagues of the shooters and whose involvement in the investigation was in breach of police instructions designed to ensure the integrity of evidence collected in police investigations of police shootings. according to podesta and dilorenzo, levi lunged at them with the knife and tried to kill them. podesta said that levi was about one and a half to two metres away when he fired. dilorenzo said that levi was about a foot from his chest with the knife when he fired. dilorenzo believed his back was, almost literally, against the wall. both said they were concerned for the welfare of the spectators on the promenade. both believed that levi wanted to commit suicide by having police shoot him. these were their accounts, and the reasons they gave for firing their guns, when interviewed by police on the day of the shooting. unknown to police, levi’s presence on the beach attracted the attention of a photographer . the photographer took a series of still photographs of the incident, including the very moment of the fatal shooting. these photographs, published the next morning on the front page of a sydney newspaper, were later provided to the police. however, the police involved in the shooting were unaware of the photographer’s presence, and unaware that photographs of the incident had been taken when they made their statements about the shooting. the photographs were to play an important part in attracting public attention to the shooting and as evidence at the coronial inquest. the inquest robert cavanagh, as counsel and john boersig, as instructing solicitor, represented roni levi’s widow, ms melinda dundas, at the coronial inquiry into levi’s death in february and march 1998.80 a student team, co-ordinated by ray watterson and guided and supervised by cavanagh and boersig, prepared material for the inquest and, subsequently, in compiling reports and submissions to the new south wales police integrity commission about the shooting and its investigation. preparation included extensive student research into the powers, functions and procedures of the coroner and the commission. law school based public interest advocacy: an australian story 23 79 the photographer, jean pierre bratanoff-firgoff, a french professional photographer, was coincidentally taking photographs for a commercial assignment at bondi beach at the time of the incident. 80 the new south wales legal aid commission provided funding and support for ms. dundas in relation to counsel’s preparation and appearance, expert reports and some investigative work for the inquest. a coronial inquest serves several functions, including investigation of the cause of death, preliminary determination of any criminal responsibility, and prevention. it is the explicit preventative function, expressed through recommendations directed to reduce the likelihood of a similar death to that under inquiry, which gives the coronial inquest a unique place in the australian legal system.82 preparation for the levi inquest therefore included not only detailed analysis of the facts preceding and attending the shooting but also consideration of the implications of other inquests and inquiries into police shootings and police conduct. the royal commission into the new south wales police service handed down its final report six weeks before the levi shooting.83 the royal commission conducted hearings and made findings and observations in relation to the use and supply of illegal drugs by police officers stationed at bondi police station.84 in the light of these findings and observations, and as part of its preparation for the inquest, the centre sought from the crown, unsuccessfully, information relating to the backgrounds and activities of the bondi police officers involved in the levi shooting.85 the state coroner, as required by law, and assisted by an investigation team of senior crime police, assumed responsibility for the investigation of the levi case within hours of the shooting.86 significantly (and as discussed later), information uncovered subsequently by the police integrity commission that podesta and dilorenzo were both under internal police investigation in relation to illicit drugs at the time of the shooting, was not provided to the investigating police, or to the state coroner, when the investigation was commenced. at the inquest, cavanagh, as counsel for ms dundas, draw extensively on the preparatory work of students, to cross examine the shooting incident police, civilian witnesses, police commanders,87 and police investigators. at the conclusion of the inquest, cavanagh submitted that the coroner should recommend to government a number of reforms intended to improve hospital management of patients, avoid future deaths at the hands of police and improve the integrity and raise the standards of investigation of deaths in custody. the coroner referred the shooting to the director of public prosecutions,88 and handed down a number of recommendations for reforms in the law and hospital and police procedures.89 24 journal of clinical legal education june 2002 81 coroners act 1980 (nsw). 82 waller, k coronial law and practice in new south wales, 3rd ed, 1994. pp. 7-8. see also selby, h the inquest handbook, federation press, sydney, 1998. 83 royal commission into the new south wales police service, final report, may 1997. 84 royal commission into the new south wales police service, final report, may 1997, vol. 1 chapter 4 para. 4.67. 85 at the inquest the coroner ruled that the question of whether there was material on the police service personnel files of either officer involved in the shooting that would cause the senior investigating officer a concern in the course of his investigation was not relevant and questioning of the senior investigating police along these lines by cavanagh was discontinued. levi inquest transcript 12.2.98 pp.77-78. in his closing submissions counsel assisting the coroner submitted, and the coroner agreed that, there was ‘no evidence that alcohol or drugs was involved in this matter at all.’ levi inquest transcript 6.3. 98 p.10. 86 the coroners act, 1980 (nsw) ss. 13a (1)(a) and 14b (1)(b) requires that a death in police custody be the subject of an inquest to be conducted by the state coroner or a deputy state coroner. 87 including those senior police officers responsible for the introduction of non-lethal methods of control, such as capsicum spray and extendable batons, and for police training in weapons handling 88 findings of the inquest into the death of roni levi, d. w. hand, state coroner, glebe, 6 march 1998. 89 recommendations of the inquest into the death of roni levi, d.w. hand, state coroner, glebe, 11 march, 1998. the director of public prosecutions subsequently decided not to initiate prosecutions against the two police officers who shot levi.90 the police integrity commission in part, because of concern that the decision of the director of public prosecutions was undermined by the initial police investigative failure, the centre submitted a detailed report to the police integrity commission on the shooting and its subsequent investigation.91 the report contended that important evidence and matters relating to the shooting were not considered or fully investigated by police prior to the inquest. it maintained that a series of investigative failures compromised the integrity of the shooting investigation and raised serious doubts about the thoroughness and reliability of the evidence obtained by police, produced at the inquest, and available to the coroner and the director of public prosecutions. the report called upon the commission to reinvestigate the shooting, investigate whether podesta or dilorenzo were using or involved in the supply of illicit drugs prior to the shooting, and whether they were affected by drugs or alcohol at the time of the shooting. the report also called upon the commission to consider whether police corruption, serious misconduct or incompetence had tainted the investigation of the shooting and caused a miscarriage of justice. as the report pointed out, the officers who shot levi would be guilty of a crime if they fired without lawful justification. consequently, failures in the investigation of the shooting may have caused a miscarriage of justice. a miscarriage of justice may result from a failure to properly investigate or prosecute particular types of persons, whether through bias, political manipulation, corruption or incompetence.92 flawed police investigation, usually works against an accused person. as the report pointed out, however, in the case of a police shooting investigated by police, investigative flaws are likely to operate in favour of police shooters and to reduce their prospect of being found guilty of unlawful homicide. some time after the centre provided its report to the commission, the commission conducted hearings into allegations that some members of the new south wales police service were associating with suppliers of prohibited drugs and were involved in the use and supply of prohibited drugs.93 senior constable anthony dilorenzo and rodney podesta94 were the subject of investigation and inquiry by the commission at these hearings. at the hearings it was revealed that podesta and dilorenzo were the subjects of police internal affairs’ drugs surveillance. one period of surveillance of podesta coincided with the inquest.95 a period of surveillance of dilorenzo occurred shortly after the inquest.96 the surveillance tapes, questions arising from them, and law school based public interest advocacy: an australian story 25 90 on 30 june, 1998 mr nicholas cowdrey qc, the director of public prosecutions (‘dpp’), decided not to proceed with criminal charges against any person arising out of roni levi’s death. he gave the following reasons. ‘in my view on the evidence available the prosecution would not be able to prove beyond reasonable doubt that the officers did not act in self-defence when they fired at mr levi. accordingly, in my view, there would be no reasonable prospect of conviction on any relevant charge’. correspondence director of public prosecutions to newcastle legal centre, 30 june 1998. 91 a very public death, interim report by the university of newcastle legal centre to the nsw police integrity commission relating to the police shooting of roni levi, bondi beach, 28 june, 1997, 23 september, 1998. 92 walker, c and starmer, k, ed. miscarriages of justice: a review of justice in error blackstone press, ltd , london, 1999 p. 36. 93 police integrity commission operation saigon phase 1, february 1999. 94 rodney podesta resigned from the new south wales police service some time after the shooting and before the commission’s hearings. 95 surveillance of podesta during february 1998, included saturday 28 february. this was a saturday during the public sittings of the coronial inquest into the shooting. 96 in april 1998. questions arising from other aspects of police internal affairs commission investigations were put to podesta and dilorenzo at these hearings. rodney podesta confessed to drug use apparently revealed by police surveillance of him during the inquest97 and to drug use not long before and around that time. podesta confessed only to using and dealing in drugs in the period after the levi shooting.98 podesta also confessed to participating in the supply of cocaine apparently revealed by the same police surveillance of him. podesta was charged and convicted in relation to supplying a prohibited drug on this occasion99 and was sentenced to four months periodic detention.100 at these hearings, and subsequently, dilorenzo denied any involvement in the use or supply of illegal drugs or any other wrongdoing. however, dilorenzo was removed from the police service pursuant to s. 181d of the police service act 1900, nsw.101 such removal is not a dismissal from the service and has the same effect under the act as resignation or retirement.102 following a further submission by the centre to the commission,103 the commission announced104 the commencement of further hearings into allegations concerning the involvement of rodney podesta and anthony dilorenzo in the use and supply of prohibited drugs, allegations that they were affected by drugs and/or alcohol when they shot levi, and allegations of police corruption or misconduct in the investigation of the shooting.105 the commission conducted public hearings into these matters in november, 1999 and in february and march 2000 and tabled its report concerning its investigations and hearings in parliament on 15 june, 2001.106 the commission’s report revealed details of the investigation of podesta and dilorenzo’s association with illicit drug use and supply. in may 1996 the internal affairs branch of the new south wales police service had begun an investigation of anthony dilorenzo in relation to alleged improper association with drug dealers. in may 1997 internal affairs had commenced an investigation into rodney podesta’s alleged use and supply of prohibited drugs and joined this investigation with that of its investigation into anthony dilorenzo. both officers were still under investigation in relation to drug related allegations at the time of their shooting of levi, however, as the commission reported, neither officer was tested for drugs or alcohol following the incident. 26 journal of clinical legal education june 2002 97 on saturday 28 february 1998. 98 podesta admitted to binge drinking, using a cocktail of ecstasy and cocaine and partying all night in inner city night clubs. but he insisted that ‘most of the times i’ve taken drugs’ was in the period after his father died of a protracted illness, late in 1997. he told the commission that he no longer used illegal drugs. but he also told the commission that, during the time that he now confessed to using drugs, he was acutely conscious of the need to conceal his involvement in drugs, especially from senior officers and other police. transcript police integrity commission hearing operation saigon 23.2.99. 99 on saturday 28 february 1998. 100 podesta admitted obtaining 3.5 grams of cocaine on 28 february 1998 so that he could cut it, keep a gram for himself, and sell the remainder. in relation to this transaction to buy cocaine in order to supply, podesta pleaded guilty to the charge of ‘supply prohibited drug’ and was sentenced to four months imprisonment to be served by way of periodic detention. 101 sub-section 181d (1) of the police service act 1900 (nsw ) authorises the commissioner, by order in writing, to remove a police officer from the police service if the commissioner does not have confidence in the police officer’s suitability to continue as a police officer, having regard to the police officer’s competence, integrity, performance or conduct. 102 sub-section 181d (8) of the police service act 1900 (nsw). 103 submission by the university of newcastle legal centre on behalf of ms. melinda dundas to the new south wales police integrity commission, 15 march 1999. 104 notice of police integrity commission public hearing and terms of reference, sydney morning herald ,1 september, 1999. 105 on 29 october 1999 the centre made a further submission to the commission on behalf of ms. dundas in relation to the matters the subject of the commission’s public hearings. 106 police integrity commission, report to parliament, operation saigon, 15 june, 2001. the commission found that podesta: (i) used prohibited drugs, including cocaine and ecstasy, prior to his joining the police force; (ii) continued to regularly use cocaine and ecstasy whilst a serving police officer, between the time he joined the force in may 1995 until the time he left the force in march 1998, including the periods just prior to and after the shooting; (iii) supplied cocaine on several occasions whilst a serving police officer; and (iv) improperly associated with mark dilorenzo (the brother of anthony dilorenzo), a convicted drug supplier, whilst podesta was a serving police officer, including in the period just prior to the shooting.107 based on evidence before it the commission recommended that consideration be given to the prosecution of podesta for suppling cocaine. the commission added that, had podesta not resigned from the police service, it would have recommended that consideration be given to his removal from the service, having regard to his use and supply of prohibited drugs whilst a serving police officer. the commission found that anthony dilorenzo used cocaine with podesta on a number of occasions some months prior to the shooting and was involved in the use of prohibited drugs with another person at a time after the shooting. the commission added that, had dilorenzo not been dismissed from the police service because the commissioner of police had lost confidence in his suitability to continue as a police officer, it would have recommended that consideration be given to his removal from the service. the commission found that police had received information from a number of sources after the shooting alleging that podesta and/or dilorenzo were affected by drugs and/or alcohol the evening before the shooting. it found that some of this information had been inadequately investigated and some of it had been “effectively lost” by police investigators.108 the commission acknowledged that these lost investigatory opportunities supported “legitimate concerns that a proper investigation of the shooting had not been undertaken”.109 the commission’s investigations uncovered a number of individuals able to give evidence about podesta and dilorenzo’s activities on the evening before the shooting. however, two witnesses who may have been able to provide relevant evidence died after the shooting and before the commission’s hearings. in the result, only one witness testified to seeing podesta apparently under the influence of drugs on the evening before the shooting. a former girlfriend of podesta’s testified that podesta had visited her home late that evening, that he appeared to be “high on cocaine”, and that he had told her that he had been using cocaine.110 however, podesta’s claim that he was with friends and relatives on that evening was supported by the evidence of two long standing friends and his mother. the commission was “not comfortably satisfied that the account [of the former girlfriend of podesta] is correct”.111 the commission concluded that the information that it had been able to recover or obtain, almost four years after the shooting, could not support a finding that either podesta or dilorenzo were affected by alcohol and/or drugs at the time of the incident. the commission criticised many other aspects of the investigation of the shooting. it found, for example, that no “orderly or structured control was taken of the shooting immediately after it law school based public interest advocacy: an australian story 27 107 police integrity commission, report to parliament, operation saigon, 15 june, 2001. p. 56. 108 police integrity commission, report to parliament, operation saigon, 15 june, 2001. p. iv. 109 police integrity commission, report to parliament, operation saigon, 15 june, 2001. p. 61. 110 police integrity commission, report to parliament, operation saigon, 15 june, 2001. p.58. 111 police integrity commission, report to parliament, operation saigon, 15 june, 2001. p. 62. occurred [and] that there was a systemic failure to comply with the then procedures [for the investigation of a police shooting], and there was a real risk that such an important investigation may have been carried out by officers who might be perceived as not being at arm’s length from podesta and dilorenzo”.112 the commission concluded, however, that the deficiencies in the investigation, while serious, were not “due to corruption or misconduct, merely confusion and misunderstanding”.113 the commission observed that the levi case was “a powerful example of the necessity for an effective system of drug and alcohol testing of police officers involved in critical incidents…. if both officers had been drug tested after the incident, there would be no doubts as to whether they were affected by drugs and alcohol at the time”.114 a statutory power to conduct random or targeted drug and alcohol tests of police officers had existed since january 1997, but there was no statutory power at the time of the levi shooting requiring officers involved in critical incidents to provide samples for drug and alcohol tests and random drug testing had not been implemented.115 the commission maintained that the law should allow for, and require the obtaining of, the best evidence for the purpose of drug and alcohol testing of a police officer following a critical incident. it therefore recommended that blood testing of a police officer following a critical incident be introduced. the commission also recommended the immediate commencement of random drug testing for the new south wales police service.116 on the same day these recommendations were tabled in parliament, the government announced that it accepted them and would introduce legislation to give effect to them.117 investigative failure in the levi case the investigative failures in the levi case, detailed in the centre’s reports and submissions to the police integrity commission or revealed by the commission’s report, include the following: – no independent government agency investigated the shooting: the investigation of the circumstances leading to and involved in the shooting was carried out by the police. – contrary to the police commissioner’s instructions for the investigation of a police shooting, the investigation team included a number of police officers who were close working colleagues of the police involved in the shooting. – the methods employed by police to gather evidence, particularly the obtaining of statements, cast serious doubt upon the reliability of that evidence. for example, contrary to standard practice for the investigation of a fatal shooting, key eye witnesses to the shooting were not interviewed. instead, police eye witnesses were allowed to 28 journal of clinical legal education june 2002 112 police integrity commission, report to parliament, operation saigon, 15 june, 2001. p. iv. 113 police integrity commission, report to parliament, operation saigon, 15 june, 2001. p. iv. 114 press release pic releases report on drug use in nsw police service, 15 june 2001. 115 the police legislation further amendment act 1996 (nsw) amended the police service act 1990 (nsw) by inserting s. 2111a, providing for random and targeted alcohol and drug testing of police 116 police integrity commission, report to parliament, operation saigon, 15 june, 2001. p. vii. 117 for a more detailed account of the levi case see goodsir, d death at bondi: cops, cocaine and corruption and the killing of roni levi, pan macmillan, sydney, 2001. prepare their own statements. they did this after talking to each other and to the two officers who shot levi.118 – the manner in which police investigators obtained statements from civilian eye witnesses may have adversely affected the reliability of some civilian evidence. for example, some civilian eye witnesses were interviewed by bondi police officers contrary to the police commissioner’s instructions. – media statements about the shooting made by senior police shortly after the shooting may also have affected the reliability of some of the civilian evidence. levi and justice the resources available to the state, the investigating police and the police under investigation in any inquiry into a death in custody dwarf those available to the victim.119 law school based public interest advocacy on behalf of levi's widow helped to alleviate the disparity in the levi case. exposure of the flaws in the investigation of the shooting commenced with the initial examination and analysis of the police brief of evidence by the newcastle public interest advocacy team. more flaws in the police investigation were exposed when police investigators were cross-examined at the inquest by cavanagh, assisted by his student team. deeper problems arising from the drug associations of the officers who shot levi came to light only after the police integrity commission conducted independent investigations, assisted by the information, analysis and research of the submissions made to it by the newcastle team. the centre’s reports and submissions and the commission's report reveal how a flawed police investigation may compromise an inquest and the exercise of a prosecutor’s discretion. as the commission observed, the pattern of police investigative failure in the levi case, kindled “legitimate concerns that a proper investigation of the shooting had not been undertaken”.120 however, as the commission also observed, it did not address or was unable to satisfactorily resolve many of the questions arising from levi’s very public death in police custody.121 despite the scrutiny by the coroner, the director of public prosecutions, the commission, and the work of the public interest advocacy team on behalf of ms dundas, it remains the case that, as a result of the initial investigative failures on the part of the police, the truth about the levi shooting may never be known and justice may never be done. law school based public interest advocacy: an australian story 29 118 taylor, jones, seddon, smith and goodman were permitted to make their own statements and were not independently interviewed. dilorenzo, podesta, taylor, jones, seddon, smith and goodman each had the opportunity to collude on their version of events and admitted at the inquest that they had in fact discussed the incident with each other in some way before making their statements or giving their interviews. 119 walker, c and starmer, k, ed. miscarriages of justice: a review of justice in error blackstone press, ltd, london, 1999 chapter 7 fitzpatrick, b ‘disclosure: principles, processes and politics’ at pp. 151-169 120 police integrity commission, report to parliament, operation saigon, 15 june, 20001. p. 61 121 those questions include those most fundamental to doing justice in this case. like: why was levi shot dead instead of being taken alive into protective custody: were the police telling the truth when they claimed that they had no choice but to take levi's life: did they have to shoot because levi threatened their lives; were the officers who fired the four fatal shots, one in the back, shielded by other police from the law and accountability; did the police who witnessed the shooting consciously or unconsciously mould their version of events to support their colleagues? law student participation in the levi case students contributed to the levi case by carrying out essential investigative and legal research tasks and drew deep lessons from their contribution. especially lessons about investigative failure and injustice which may result from it. over sixty newcastle law students actively participated in the levi case.122 in preparation for the coronial inquest into levi’s death, students attended briefing sessions with the lawyers in charge of the case and undertook various supervised tasks of fact gathering, research and analysis. these tasks included: perusal and analysis of the police brief of evidence; analysis of media material relating to the shooting; background preparation of material for lines of crossexamination. they also included fact gathering, legal and policy research relating to, amongst other things: the jurisdiction, powers and functions of the coroner, especially the recommendations function; other inquests and inquiries into police shootings; police training and procedures in relation to the use of firearms; police training and procedures in relation to the mentally ill; hospital practices and protocols in relation to ‘absconding’ patients; drug and alcohol screening for police. in preparing submissions for the police integrity commission, students carried out analyses and prepared material covering a number of areas. students carried out research and analyses into the nature of contemporary police corruption;123 compliance by police investigators with the police commissioner’s instructions relating to the investigation of a death in custody and the implications of any non-compliance for the integrity of the investigation in the levi case; the record of police investigative failure in the levi case and its implications for coronial and prosecutorial decision making; the identification and analysis of the opportunities arising in the course of the investigation of the shooting for the police involved in the shooting to collude on their stories and the implications of any such opportunities for the reliability of the police evidence; the implications of the failure to test the officers involved in the shooting for drugs and alcohol; the record of police/media communications relating to the shooting and its implications for the proper administration of justice.124 a principal educational objective of student participation in the levi case was to assist students to develop the kinds of cognitive skills necessary to undertake sound investigation and management of facts in law.125 much legal process is devoted to fact adjudication, where the law is clear and undisputed. facts also underpin the exercise of discretionary judgements in law. facts are also 30 journal of clinical legal education june 2002 122 some students were enrolled in the optional subject, public interest advocacy, some were on clinical placement in the professional program, others were volunteers. 123 students considered academic and official sources, including: the report of commissioner g e fitzgerald of the ‘commission of inquiry into possible illegal activities and associated police misconduct’, brisbane, queensland, july, 1989; report of the inquiry into the death of david john gundy by commissioner j h wootten, australian government publishing service, 1991; and the royal commission into the new south wales police service, final report, may, 1997. 124 because of its sensitivity, staff, rather than students, dealt with certain confidential information relating to possible individual police drug activities. 125 the cognitive skills involved in fact investigation in law include those necessary to: examine facts in detail and to make all possible interpretations; identify gaps and ambiguities; place the information in context; identify and indicate priorities and relevance in factual issues; distinguish between fact and inference, and direct, circumstantial and hearsay evidence of fact; organise facts in a way which aids understanding and supports appropriate propositions of law. see first report on legal education and training, the lord chancellor’s advisory committee on legal education and conduct, hmso london april 1996. critical in appellate rule-making. consequently, contemporary legal educators have challenged academics in law schools to take facts more seriously.126 ‘new evidence’ scholars have attempted to formulate theories and conceptual frameworks for understanding the nature, functions and practices of fact gathering and proof in legal process.127 despite these advances, the processes of fact-finding and evaluation remain neglected areas of legal discourse, education, and research. students involved in the levi case were challenged to address and provide the most intellectually rigorous answers to a series of questions about facts and law that actually confronted the legal decision makers in the case. these decision makers included the coroner, the director of public prosecutions, the police integrity commission, other lawyers and the police. students were also encouraged to reflect on the nature and significance of these questions and the alternative answers available to them.128 levi reforms at the conclusion of the inquest into levi’s death the coroner made a number of recommendations for reform of the law and police and hospital procedures.129 the coroner recommended that all hospital policies and procedures manuals, including nursing manuals, should include a protocol dealing with all patient abscondments. he recommended that such a protocol should address, particularly, notification of the family, security and, in appropriate cases, notification of police, for abscondments which occur without any forewarning.130 the coroner recommended a number of reforms in the law, protocols and policies relating to drug testing of police officers, the conduct of investigations of deaths in custody, and police training and resources. the coroner’s recommendations relating to the investigation of deaths as a result of a police shooting and the background to them were as follows:131 law school based public interest advocacy: an australian story 31 126 see, for example, anderson, t & twining, w analysis of evidence: how to do things with facts weidenfeld & nicholson, london, 1991; twining, w, rethinking evidence, basil blackwell, oxford, 1990. see also franklin, j the science of conjecture: evidence and probability before pascal, john hopkins university press ( franklin complains that law students are taught about subtle rules on the exclusion of evidence instead of how to evaluate the facts). 127 see, for example, wigmore j the science of judicial proof as given by logic, psychology, and general experience, and illustrated in judicial trials, 1937; tillers, p & green, e d (eds) probability and inference in the law of evidence, dordrecht, kluwer academic publishers, 1988; anderson, t & twining, w analysis of evidence: how to do things with facts, weidenfeld and nicholson, london,1991; twining, w rethinking evidence: exploratory essays blackwell 1990; twining, w and stein, a evidence and proof dartmouth, aldershot, 1992; wells wan natural logic: judicial proof and objective facts, federation press, sydney, 1994; roberts, graham evidence: proof and practice lbc information services, sydney, 1998 (especially chapters 1 &2 on evidence and proof of evidence). 128 amongst other things, students were challenged to reflect upon: how is the strength of an inference to be determined; how is the net persuasive value of a mass of evidence to be assessed ; how are judgments about the probative force of different items of evidence to be combined; how does the lawyer or the trier of fact determine whether a mass of evidence, which logically supports the truth of the proposition ultimately to be proved, satisfies the applicable standard of proof; what do we mean when we say a proposition has to be proven to be more probable or not, proven by clear and convincing evidence or proven beyond reasonable doubt? anderson, t & twining, w analysis of evidence: how to do things with facts, weidenfeld and nicholson, london,1991. 129 the recommendations were directed to the minister for health and the minister for police. 130 the coroner made this recommendation to the minister for health. he also recommended to the minister for police that the police service enter into discussions with the department of health with a view to formulating an appropriate protocol in dealing with mentally ill and disturbed persons. 131 recommendations of the inquest into the death of roni levi, d.w. hand, state coroner, glebe, 11 march, 1998. • the investigation of a police shooting should be monitored by an assistant commissioner or chief superintendent of police.132 • the scene of a police shooting should be attended by an assistant commissioner of police to ensure that proper investigative procedures are followed and necessary resources are provided for the investigation.133 • investigators should take special care to ensure all police eyewitnesses are interviewed properly.135 • no police officer, other than the officer in charge of the investigation or his delegate, should make any statement to the media in relation to a police shooting resulting in a death.135 • police investigators should be required to thoroughly check erisp tapes before and after an interview.136 32 journal of clinical legal education june 2002 132 according to the police commissioner’s instructions at the time of levi’s death investigations of deaths as a result of police shooting were to be carried out by police officers from outside the region where the incident occurred. this system sought to secure a degree of independence of the police conducting the investigation from those under investigation. the coroner recommended that this system be maintained but strengthened by the additional requirement that such investigations be monitored by a police officer of at least the rank of assistant commissioner or chief superintendent. 133 in order to increase the independence of persons investigating a death resulting from a police shooting counsel assisting the coroner, mr david cowan, advanced a recommendation that such investigation should be carried out by seconded interstate police officers in order to increase the independence of such investigators from the nsw police service. the coroner declined to make this recommendation because of practical problems of implementation, which he considered might arise from its implementation. instead, the coroner recommended that an officer of the rank of assistant commissioner or above attend the scene of any police shooting resulting in a death, to ensure that all procedures laid down in the commissioner's instructions are followed and that all necessary resources are immediately available to the officer in charge of the investigation. 134 the coroner recommended that special care should be taken by investigators to ensure that all key police eyewitnesses to any police shooting resulting in a death immediately be, and continue to be, separated and immediately be directed not to discuss the incident and that they be interviewed as soon as possible thereafter. 135 the coroner made this recommendation relating to police media relations as a safeguard against the public canvassing of what occurred in a police shooting in a manner which can affect the recollection of witnesses. around midday on the day of the shooting the commander of bondi police called a press conference outside bondi police station. the bondi commander told the media that levi had lunged at police with a knife and they had to shoot him. this was the account of the shooting provided by podesta and dilorenzo. it was also the vital question the police had only just commenced to investigate and which was for the coroner to decide. at the time of the press conference and its broadcast, the other police and civilian witnesses who saw the shooting had not yet provided their version of events to the investigating police. the bondi commander’s account was widely publicised that night on television news and on the sunday and during the following week in the print media. it was an immediate and forceful public account of the shooting by a senior police officer. it operated to publicly ‘confirm’ or at least reinforce podesta’s and dilorenzo’s version of events. it was capable of influencing the other police and civilian witnesses who saw it and who were yet to come forward to provide their version of events. indeed of the thirty nine civilian eye witnesses who provided statements about the shooting to investigators only two supported the accounts of podesta and dilorenzo that levi had ‘lunged’ at them when they fired. each of these witnesses were interviewed by bondi police, contrary to the police commissioner’s instructions. in an interview for television conducted about an hour after the shooting but not broadcast, one of these eyewitnesses, leo hamlin, was unable to say whether or not levi lunged at police when they shot him. however, in his statement taken by a bondi police officer at bondi police station some days after the incident hamlin stated that levi had lunged at police just before they shot. hamlin was found by the coroner to have been influenced in his statement and evidence by the bondi commander’s televised press conference on the day of the shooting. see recommendations of the inquest into the death of roni levi, d.w. hand, state coroner, glebe, 11 march, 1998. 136 the coroner made this recommendation because of his finding that in this case a problem had arisen with the recording of both sound and vision respectively of the erisp tapes of the interviews of constable podesta and senior constable dilorenzo • the coroner’s recommendations relating to drug testing and police training and resources were as follows: • legislation should be amended to provide for police officers involved in a fatal shooting to be mandatorily alcohol/drug tested as soon as possible following such an incident.137 • police training in dealing with mentally ill persons should be reviewed and constantly updated and reinforced with police officers.138 • police service proposals to introduce capsicum spray and extendable batons be expedited.139 many of the coronial recommendations in the levi case have been implemented. reforms have been introduced to the hospital and police management of situations involving people who may be mentally ill.140 legislation now provides for the mandatory drug and alcohol testing of police officers involved in fatal shootings.141 the new south wales police service now equips its officers with capsicum spray142 and extendable batons.143 new guidelines regulate the conduct of police investigations of deaths in custody.144 as previously noted, the police integrity commission, seeking to ensure that the law obtains the best evidence from the drug and alcohol testing of a law school based public interest advocacy: an australian story 33 137 the coroner described this as a ‘strong’ recommendation. in making this recommendation the coroner commented that mandatory alcohol/drug testing following a police shooting would be an important form of protection for police officers in a situation where allegations concerning the use of drugs or alcohol are made. 138 the coroner made this recommendation after expressing the view that the events that occurred on bondi beach highlighted the need for police training in dealing with mentally ill persons to be reviewed and constantly updated and reinforced with police officers. 139 having heard evidence that the police service had considered the introduction of capsicum sprays and extendable batons and proposed to do so, the coroner commended these proposals and recommended that their implementation be expedited. 140 a memorandum of understanding between the nsw police service and the nsw department of health, 11 august 1998, establishes a new framework for the management of situations involving police and health staff and persons who may have a mental illness. 141 on 23 june 1998 the police service amendment (alcohol and drug testing) act 1998 no 40, nsw came into effect in new south wales. the new legislation provides for mandatory alcohol and drug testing of police officers directly involved in an incident in which a person is killed or seriously injured as a result of the discharge of a firearm by a police officer. 142 at the inquest in march 1998 the then head of school of operational safety and tactics at the nsw police academy, chief inspector thomas william lupton, gave evidence that the use of capsicum spray had been under consideration by the nsw police service for some three years prior to 1998. [levi inquest transcript 5.3.98 p. 28]. 143 at the police integrity commission, chief inspector lupton gave evidence that since june 1997 extendable batons had been incrementally introduced into the service at a local level. according to lupton ,the reason the extendable baton was given ‘very real consideration’ by the service for it introduction was based on what occurred in the levi shooting. [transcript of evidence police integrity commission hearing operation saigon phase 3 1.3.2000 p.479] from this incident where several officers had confronted a person with a knife the service had come to clearly appreciate the need for officers to be personally equipped with batons. if each of the officers in the levi case had to hand, as part of their personal equipment supply, an extendable baton, their training would have prepared them to resolve the situation by the co-ordinated, multiple use of their batons as a real possibility. [transcript of evidence police integrity commission hearing operation saigon phase 3 1.3.2000 p.479] according to lupton, the advantage of the expandable baton in comparison to the baton in use at the time of the levi incident was that, it collapses neatly, is comfortable to wear and is carried on the belt at all times. as lupton explained to the police integrity commission in the context of the levi shooting the advantage of the extendable baton over the long baton was that ‘on exit from the vehicle, in the heat of the moment, at least, the baton went with the constable rather than be left in the vehicle.’ lupton added that in the levi case “it may well have been a better option in this situation had there been more than one or two batons there”. [transcript of police integrity commission hearing operation saigon phase 3 wednesday 1.3.20000 p.498] 144 the new south wales commissioner of police has issued new guidelines for the investigation and review of deaths/serious injuries in custody for the new south wales police service. the new guidelines incorporate and seek to give effect to the coroner’s recommendations relating to the conduct of police investigations of police shootings. police officer following a critical incident recommended the introduction of blood testing of a police officers following a critical incident. the commission also recommended the immediate commencement of random drug testing for the new south wales police service. each of these recommendations was accepted and acted upon by government. however, the levi case has highlighted the need for further and deeper structural and institutional reforms of the criminal and civil justice systems in new south wales. these reforms are still outstanding. they include an overhaul of the state coroner’s office and the substitution of an independent agency for the police in future investigations of deaths in custody. the coronial system in new south wales has been described as, “the proverbial poor relation in the administration of justice in nsw”.145 there have been many calls for a major overhaul of the coronial system; to upgrade the status and resources of the coroner’s office, to improve its fact finding capacity, to provide greater access to and assistance for relatives of victims, to reform the coroner’s powers and procedures to give greater emphasis and efficacy to the preventative role of an inquest and improve monitoring and implementation of coronial recommendations.146 at least one commentator has drawn attention to the absence from the coronial system of mechanisms for independent or public interest representation in cases raising issues of major public concern.147 the levi case highlights the limitations of current coronial practice and underscores the need for a systemic overhaul of the new south wales coroner’s office. a modern coronial system needs to discharge its investigative, preventative and educative functions to the highest standards. this requires the assembly of an independent specialist team of legal, medical, police and scientific investigators under the guidance and direction of a state coroner with the status of a supreme court judge. only such a specialised and autonomous institution, properly resourced in terms of skills and infrastructure, is able to provide a fair and adequate, thorough and caring community response to questionable death. a response which will truly “speak for the dead to protect the living”.148 34 journal of clinical legal education june 2002 145 hogan, m “towards a new south wales coronial system for the nineties” (1991) 2(3) current issues in criminal justice 75 at p. 77 and p.78. it may be, for example, that poor resources and support accounts, at least in part, for the lengthy delays that have attended a series of ‘high profile’ inquests in new south wales, including the inquests in relation to thredbo and the sydney/ hobart yacht race. 146 selby, h the inquest handbook, federation press, sydney, 1998. 147 hogan, m “towards a new south wales coronial system for the nineties” (1991) 2(3) current issues in criminal justice 75 at p. 79. hogan argues that the imperative for those closely connected with death to deny culpability is strong. positing the need for a form of amicus curiae procedure in inquests, hogan argues that unravelling the unusual circumstances of death occurring in a public institution demands more than the choice offered by the competing versions advanced by those directly interested. ‘the representation of the public interest is inadequate. coroners come from a context that is not usually investigative or inquisitorial. the judicial role in local courts is a passive recipient and adjudicator of evidence presented by competing parties......in all cases, too much responsibility to represent interests other than those of the individuals or agencies involved in the death falls on the existence, willingness and resources of relatives of the deceased. this is too great a burden.’ 148 the ontario law reform commission has expressed the view that an inquest should serve three primary functions: (i) as a means for public ascertainment of acts relating to deaths, (ii) as a means for formally focussing community attention and initiating community response to preventable deaths, and (iii) as a means for satisfying the community that the circumstances surrounding the death of no one of its members will be overlooked, concealed or ignored. see bennett, rc deputy chief coroner ontario “the changing role of the coroner” 1978 . in routine coronial inquests, investigations are usually carried out by the police. the police also prepare the brief for the inquest, assist the coroner and secure the attendance of witnesses. in police custody and police shooting cases investigations are usually supervised by counsel assisting, instructed by the crown solicitors’ office. roni levi met a very public death at the hands of police, a death witnessed by the media and scores of civilians. the levi case calls into question the professionalism and integrity of police investigative methods, and the effectiveness of coronial superintendence of police investigators attached to the police service. the police investigation of the levi shooting, the recommendations made by the coroner relating to such investigations, and the report of the police integrity commission, combine to emphasise the need for more fundamental reforms in the investigation of deaths in custody. the royal commission into the new south wales police service recommended the establishment of a new agency, external to and independent of the police service “with a specific focus upon the investigation of serious police misconduct and corruption”149 that agency has been established as the police integrity commission.150 the royal commission proposed that this new independent agency be responsible for the investigation of a special category of complaints about police matters, namely, ‘serious misconduct and corruption’,151 which should include, “matters in which it is unlikely that there will be public confidence in an internal police investigation (for example, where the complaint relates to death or serious injury in police custody).”152 the latter recommendation has not been implemented. the levi case underscores the need for government to implement the royal commission’s recommendation for the investigation of complaints about deaths in custody to be undertaken, not by police, but by an independent agency such as the police integrity commission and to consider transferring the primary responsibility for the investigation of all future deaths in custody from the police to an independent agency such as the police integrity commission. conclusion the levi case illustrates the educational, justice and reformist role and value of law school based public interest advocacy. however, law school based public interest advocacy is unlikely to develop and contribute to justice and learning about law unless it becomes a part of the teaching and research culture of law schools. until accepted by the academic system, public interest advocacy will never effectively serve justice, produce legal change and contribute to a better understanding of law itself. the potential for collaboration between law students, academics and practitioners to contribute to the public good is enormous. the future of law school based public interest advocacy will depend, however, upon greater preparedness to take it on, greater recognition of its worth and greater support for its endeavour. at the start of the 21st century, newcastle law school is the only clinical law school in australia with an integrated approach to clinical legal education. others are moving to include clinical legal law school based public interest advocacy: an australian story 35 149 royal commission into the new south wales police service, interim report, february 1996 chapter 5 para 5.29. 150 the police integrity commission act, 1996 (nsw). 151 royal commission into the new south wales police service, interim report, february 1996 chapter 5 para 5.54 152 royal commission into the new south wales police service, interim report, february 1996 chapter para 5.58 education in their curriculum and there are signs that public interest advocacy and other forms of clinical legal education will move from being fringe dwellers and take a real place in the antipodean law school of the twenty-first century. perhaps the clearest signpost to the future is that placed recently by the australian law reform commission. the commission’s recommendations included those aimed at encouraging an emphasis in australian legal education upon legal ethics and high order professional skills (without derogating from the responsibility law schools have to provide students with a grounding in substantive law); a national discipline review and the establishment of an australian academy of law. a national discipline review of legal education in australia and the establishment of an australian academy of law, as envisaged by the commission, might be expected to provide foundation and support for the future of clinical legal education in australia. however, australian law schools, like their counterparts throughout the world, will need to change their culture as well as their curriculum to ensure that public interest advocacy and other forms of clinical legal education develop for the public benefit and for that of the law and its students. william twining imagined an ideal law school as one, which “gives a high priority to clinical experience”.156 anthony amsterdam157 and, more recently, the australian law reform commission, have argued that the law school of the 21st century should move away from “a solitary preoccupation with the detailed content of numerous bodies of substantive law”158 and more effectively integrate clinical legal education and other forms of “properly conceived and executed professional skills training” into their curricula.159 to do so law schools will need to confine to history langdell’s 19th century catechism for law students and their teachers that “everything you would wish to know can be obtained from printed books”.160 law schools will need to take more seriously the 20th century pedagogy of jurists like twining and amsterdam, in order to find a proper place for “learning from the experience of practising law”161 in the new millennium. 36 journal of clinical legal education june 2002 153 alrc managing justice chapter 2 pp. 113-202, especially para 2.77. 154 a national discipline review of legal education which the commission envisaged should consider matters like: the balance in law school curricula between liberal and professional education; the teaching of professional skills (including legal ethics and professional responsibility), and the mounting of clinical programs (including fostering pro bono partnerships and other collaborations between law schools and legal practitioners); the location of practical legal training programs in law schools; and the resource base for law schools and law libraries. 155 the commission suggested the establishment of an academy of law to promote a more active collegial relationship among judges, lawyers, legal academics and law students, and ‘to facilitate effective intellectual interchange of discussion and research of issues of concern, and nurture coalitions of interest’ including a coalition of those academics, judges, practitioners, and law students who wish to encourage active and systematic participation of jurists and law students in community legal services and clinical legal education programs’. alrc managing justice paras. 2.1152.128. 156 blackstone’s tower: the english law school the hamlyn lectures, 1994, sweet and maxwell, p.52 157 amsterdam, a ‘clinical legal education--a 21st century perspective’, (1984) 34 j. legal educ. 612. 158 alrc managing justice para.2.82. as the alrc notes this is essentially the position taken by the `priestley 11' requirements. 159 to explain the notion of ‘properly conceived and executed professional skills training’ in the context of undergraduate law school education we adopt the following description of the alrc. ‘[p]roperly conceived and executed, professional skills training should not be a narrow technical or vocational exercise. rather, it should be fully informed by theory, devoted to the refinement of the high order intellectual skills of students, and calculated to inculcate a sense of ethical propriety, and professional and social responsibility. alrc managing justice para. 2.85 160 christopher langdell, harvard celebration speech (1887) 3 lqr 123-5 and see before at footnote 14. 161 amsterdam, a ‘clinical legal education--a 21st century perspective’, (1984) 34 j. legal educ. 612/613. reflections on the implementation of clinical legal education in moi university, kenya t. o. ojienda* & m. oduor** introduction clinical legal education has been defined simply as learning law by doing law.1 it is a method of instruction in which students engage in varying degrees in the actual practice of the law. students get the opportunity to apply the theoretical aspects of their training to real life or simulated situations.2 in kenya, legal education has over the years been imparted by way of the traditional lecture method. this has mainly been theoretical with little or no attention being paid to the practical aspects of the law and the legal profession. it is only recently that the importance of incorporating practical skills began to be recognised. this recognition can be traced back to the year 1994 following the establishment of the moi university faculty of law (the faculty). in this work the author intends to examine the challenges faced by the faculty in its quest to incorporate the clinical based approach into its curriculum. in doing so, the author will have to examine the basis upon which the faculty’s cle is grounded and the method used by the faculty implementing it. an assessment will be made of the specific successes and challenges faced by the faculty in implementing the programme and lastly recommendations to improve its operation will be made. though references will be drawn from other jurisdictions in certain instances, the author will confine himself within the subject of this work, i.e, cle in moi university, kenya. reflections on the implementation of clinical legal education in moi university, kenya 49 * lecturer faculty of law moi university, kenya, senior research fellow resources conflict institute, (reconcile) kenya, university of nairobi, ll.b. 1991, kenya school of law dip law 1993, king’s college london 1994 ll.m (environmental law). ** ll.b (hons) moi university, bar candidate, kenya school of law, research fellow, resources conflict institute. 1 grimes, r., (2000) “learning law by doing law in the uk” in international journal of clinical legal education p.54. 2 see iya, p.f., (2000) “fighting africa’s poverty and ignorance through clinical legal education: shared experiences with new initiatives for the 21st century “in international journal of clinical legal education p 16 and also, gold, n., (2000) “why not an international journal of clinical legal education?” in international journal of clinical legal education. p.7 background kenya inherited much of her institutions from her colonial masters, britain.3 consequently, even the system of education became patterned along british lines. the method of training lawyers was adopted from that of the colonial powers. it took principally the form of classroom discussioncum-lecture; which form has been prevalent up to now. under this mode of instruction, students undergo lecture sessions in which notes are either dictated to them or topics are assigned to them for discussion in class (tutorials). there is normally a written examination at the end of each course according to which students are graded. in kenya generally, it takes four years to acquire an undergraduate degree in law. upon graduation, students proceed for an apprenticeship stint (known as pupilage) for a period of one year. during this period, students are assigned to an advocate’s chambers where they are expected to learn the practical skills of advocacy from the advocate (called a master) under whom they work. the expectation is that at the end of the one year of pupilage, students will have learnt the relevant, practical skills that will enable them make an entry into the practice of law. statute specifically provides that students are to receive instruction in the proper business practice and employment of an advocate.4 students may be required to undergo further vocational training in institutions established for that purpose.5 in addition, students will usually have spent about six weeks on attachment at a magistrate’s chambers.6 the approach embraced in kenya has laid much emphasis on theoretical abstraction of ideas. students under the guidance of their teachers, engage in merely academic exposition of refined legal issues far removed from the practical settings underlying them. consequently, students do not get the opportunity to assess the effect of legal theory on the legal system and on the lives of those it affects. as earlier on mentioned, it is only recently that legal training in kenya began to be tailored in such a way as to incorporate the clinical approach. this approach lays much emphasis on practical solutions to real life or simulated legal problems.7 in real life situations, students get to deal with people with legal problems usually under the supervision of qualified practitioners. students are able to put into practice the theoretical aspects of advocacy that they have learnt in classroom situations.8 they are often called upon to apply their own standards in making decisions about the legal issues facing them. they also learn about standards of practice and how to follow them and also how the same are enforced on practicing advocates.9 importantly also, the clinical approach gives students a chance to experiment with the theoretical knowledge they have as they can discuss what they are learning and experiencing with other students, advocates or members of the bench before attempting to put them into practice.10 50 journal of clinical legal education june 2002 3 see generally abuor c. o., (1971), white highlands no more: a modern political history of kenya, vol. 1 nairobi: pan african researchers; flint, j.e., (1963), “the wider background to partition and colonial occupation”, in r. oliver and g. mathews (eds) history of east africa, vol. 1 oxford and ghai, y. p. and m c auslan j.p.w.b., (1970), public law and political change in kenya; a study of the legal framework of government from colonial time to the present. nairobi: oup. 4 the advocates act cap 16 and the advocate (admission) regulations made thereunder 5 regulation 3 of the advocate (admission) regulations requires students to undertake a course of legal education at an institution established for the purpose e.g. the current institution is the kenya school of law where students learn practical courses. 6 at the faculty this occurs after the second year of study and takes a period of about 6 weeks. 7 see iya p.f. supra at note 2 8 ibid at p.16. see also stuckey, r.t., (2000) “ensuring basic quality in clinical courses” in international journal of clinical legal education p.47 9 ibid 10 ibid the traditional lecture method differs from the clinical approach in the time and place which students are expected to learn the practical aspects of law. in the former, it is usually after graduation from university and mainly in an advocate’s office. in the latter, it takes place in the course of learning, before graduation and within the curriculum set-up (albeit in a wide variety of places not limited to an advocate’s office only). there are certain poignant aspects of this distinction. for example the traditional lecture method divides the learning process into stages such as academic, practical and vocational, without a conscious effort to bridge the gaps in between. the academic stage takes place in the law school (university) and is purely theoretical. the practical training stage takes the form of pupilage during time students are expected to summon all that has been learnt (in the academic stage) and apply it in practice. the vocational stage takes place in an institution established for that purpose (the kenya school of law) although the content is also mainly theoretical. no attempt has been made to link these stages together so that they flow naturally from one to the other. each of these stages also has its own unique problems. for example, doubts have been expressed whether the pupilage programme achieves its stated objectives owing to several militating factors. for example, practicing lawyers being mainly pre-occupied with their work may not be in a position to give much thought to the education and monitoring of students. the law office or the court house may not be the proper place for the instruction of students as they were not designed to perform such a function.11 the clinical approach is important in at least one other important aspect. this has to do with the role of the law and lawyers in contributing towards the ideal of social justice.12 in kenya for example, there are rising numbers of people who, because of their penury, cannot secure access to the legal system for purposes of protecting their rights. though lawyers may be acutely aware of that problem, they are usually constrained by the need to serve their clients for their own good and to provide assistance to poor litigants for the sake of justice. hence kenyan lawyers have been unable to respond appropriately and satisfactorily to the unmet legal needs of the kenyan society.13 it is at this point that the clinical approach with its positive inclination towards legal assistance to the poor comes in. the clinical approach is therefore two-pronged in its goals; first to provide students with the opportunity to learn from their encounter with real life legal problems and secondly to provide free legal services to the disadvantaged members of the society. this approach becomes even more relevant in the circumstances of a developing country like kenya where unmet legal needs are continually on the rise. reflections on the implementation of clinical legal education in moi university, kenya 51 11 gold, n., supra note 2 at p.11 12 see for example the curriculum for the faculty of law degree of moi university (the curriculum) which is premised on the ideal of promoting social justice 13 efforts at providing legal aid services have been half –hearted and rather disjointed. lawyers have not shown any enthusiasm towards this end. much of the effort has come from non-governmental organisations including for example moi university legal aid clinic (mulac), people against torture (pat), public law institute (pli), rift valley law society legal aid scheme (rvls) federation of international women lawyers (fida) – kenya chapter. for a detailed analysis of the efforts of various organisations in providing legal aid see consultant’s report on kenya civil society programme. review of access to justice projects, 2001 origin and evolution of cle scholars have traced the origin of cle in the united states of america.14 the main reason given for the development of this approach to legal education is that it was primarily a response to an obvious lack of legal services for the poor.15 law schools were resorted to as a source of such services when it became clear that neither practitioners nor indeed even state institutions could be relied upon. certainly in the united states, judicial activism seems to have played an important role in promoting cle and there was of course material support from donors for the programmes run by law schools.16 the cle approach then spread over to other jurisdictions apart from the united states. the early 1970’s saw the cle approach being embraced in jurisdictions such as the united kingdom and australia.17 law schools in africa have also taken discernable efforts to incorporate the cle approach in their curricula.18 in east africa, uganda’s makerere university has been at the forefront followed by dar es salaam university and lately university of nairobi and moi university in kenya. of all the cle programmes established by these universities perhaps the one that stands out is that of moi university, because in it, student participation is compulsory and the programme is structured in such a way that participation contributes towards the assessment of students towards their degree requirements.19 various other african universities have come up with cle programmes of varying descriptions with varying degrees of success.20 in the next section, the author intends to describe those aspects of the moi university faculty of law’s curriculum that qualify it as a clinical oriented curriculum. implementation of cle in the faculty in the first part of this section the author analyses the principles upon which the faculty is premised and how they seek to advance its clinical approach to legal education. in the second part, the author undertakes an examination of the aspects of the faculty’s curriculum that emphasize its clinical nature. 52 journal of clinical legal education june 2002 14 for example iya p. f. supra note 2, dickson j., (200) “clinical legal education in the 21st century: still educating for service?” in international journal of clinical legal education p.37 15 this need was also recognised by the u.s supreme court in the cases of gideon v. wainright 372 us 335 (1963) and later on in argersinger v. hamlin 404 us 25 (1972) 16 dickson, j. supra note 16. at p.38 17 dickson traces the spread of clinical legal education from the united states to the united kingdom and australia. a clinical programme was established in 1975 at monash university in melbourne 18 iya, p.f. s upra at note 3 p.18 19 see the curriculum 20 iya p.f. op.cit. p.18 1. foundations of the curriculum universities across africa need to develop curricula that fit well with the overall goal of promoting social transformation in a way that meets the needs of the people.21 in that light law faculties also need to be structured in such a way as to enable them become a useful tool in the achievement of this goal. the faculty with its strong orientation towards social service was established so as to meet this kind of challenge. in 1981, a presidential working party submitted a report which called upon institutions of higher learning to promote social justice and expand educational opportunities for kenyan citizens. taking up the gauntlet, the faculty’s curriculum states that the faculty was established: “[to] provide qualified students with a course of study designed to engage and challenge their intellect while exposing them to experiences designed to develop competent advocates committed to the social aims of high quality legal representation, kenyan national development, and public service”.22 in achieving this objective the faculty has taken an approach that emphasizes the clinical method in addition to (rather that with the exclusion of) the traditional classroom instruction method. the curriculum stipulates that the bachelor of laws course of study will provide instruction in fundamental legal doctrine, legal theory and advocacy skills by way of traditional classroom discussion, simulated lawyering experiences, law related externships and live client representation.23 the curriculum emphasizes that the approach taken by the faculty will be social justice and public oriented. it recognises that there are many challenges facing the kenyan people and accordingly sets out to prepare students who have the ability of identifying social phenomenon in need of change and generating solutions consistent with the kenyan situation. therefore, the faculty aims at producing lawyers with a keen interest in providing services beneficial to the public.24 coupled with the social ideals that it seeks to imbue in students, the curriculum seeks also to inculcate practical skills of advocacy.25 in its statement of educational goals, the faculty seeks to impart practical skills such as analogical reasoning, use of precedence, fact finding, research writing, persuasive speaking and effective listening. in the final analysis, graduands are expected to have the necessary analytical skills and ability to identify legal problems, the legal principles applicable to the problem, to use those principles to resolve the problems and to think critically about legal problems and the legal system. it is therefore apparent that the faculty adopts an attitude that considers the study of law as going beyond the learning of legal rules and arguments. the entire curriculum is hence premised on the ideal that law is a process of human interaction which takes within its corpus moral, social and political issues. reflections on the implementation of clinical legal education in moi university, kenya 53 21 this is perhaps in response to the criticism levelled against universities in africa regarding their role in social transformation. according to iya (op cit), there have always existed a concern as to what exactly should be the contribution of the university in meeting the needs of the ordinary citizens in their search for better life. this is a challenge posed not just to the universities alone but also to their different faculties, especially the law faculties 22 the faculty’s curriculum proposal is said to be informed by the report of the presidential working party on the second university of kenya prepared by c. b. mackay (mackay report) 23 ibid 24 ibid 25 ibid in the courses taught at the faculty three fundamental areas are emphasized throughout. these are stated to be crucial to students’ learning and are:(i) legal theory, which is intended to teach students that the doctrinal principles they are learning and evaluating do not arise out of logic or precedent but are embedded in a social and ethical context. (ii) clinical education, which teaches students to take the action and make the decisions that advocates actually face, hence emphasizing the practical aspect of the curriculum. (iii) professional responsibility, which teaches students that mastery of legal doctrine, theory and lawyering skills is not an end in itself but a means towards a legal practice that can reflect the professional person’s choices, goals and values as well the broader social goals that underlie a university committed to practical problem solving and public service. this section has described those aspects of the faculty’s curriculum that form the basis for its clinical approach. in the next part, the author intends to discuss in a more or less descriptive manner the ways by which the general ideals of the faculty are put into practice. 2. implementing the curriculum’s objectives it seems necessary to state at the outset that the faculty views the clinical approach as being supplementary to, rather than replacing, traditional classroom lectures. consequently, the subjects offered may be dealt with in three different classifications according to the mode of delivery:26 (a) subjects taught mainly through lecture method (b) subjects taught through simulated legal problems (c) skills imparted through actual live-client representation. subjects taught mainly by lecture method:-27 this method is used to deliver instructions on these subjects which by their nature are highly theoretical and which can only be appropriately handled by emphasis on lecture and discussion notes. these subjects include:social foundations of law contemporary legal issues and practice law of contracts principles of tort law legal systems criminal law civil and criminal procedure law of evidence constitutional law 54 journal of clinical legal education june 2002 26 the curriculum does not explicitly group these subjects as such 27 or the traditional method legal problems and client counseling family law professional ethics and responsibility sale of goods and agency legal analysis and alternative dispute resolution law of succession customary law property law equity administrative law commercial law banking law islamic law public international law disability law information and law proprietary rights and transactions environmental and natural resources law law of business associations fundamental rights and freedoms law of co-operatives and partnerships law of insurance gender and the law tax law labour law white collar and corporate crime law of the sea comparative legal systems of east africa jurisprudence international commercial transactions children and the law bankruptcy law and practice international commercial transactions conflicts of laws (private international law) health law reflections on the implementation of clinical legal education in moi university, kenya 55 subjects taught through simulation ideally, subjects falling under this head are mainly theoretical although students deal with legal problems that may arise in real life. the problems are posed within the context of simulations whose content is associated with recent or current areas of study. the following are the subjects falling under this head: (i) legal problems and client counseling this subject is intended to:develop skill in legal problem solving (which involves the analysis of facts within the context of relevant legal provisions), refine the student’s legal writing skills, address issues of professional responsibility and of the advocate/ client relationship and engage students in analysis and resolution of simulated legal problems. (ii) professional ethics and professional responsibility this subject imparts to the students the fundamental principles and basic assumptions related to the conduct of members of the legal profession but more importantly, students are exposed to real and perceived problems of client representation which they are required to resolve. (iii) legal analysis and alternative dispute resolution in this subject, students are imbued with reasoning and analytical skills, techniques and methods of alternative dispute resolution, theoretical and practical understanding of non-litigative mechanisms for the resolution of disputes and analysis of legal problems posed within the context of simulations. (iv) trial advocacy in this subject, students are trained on the basic principles of trial procedure, the fundamentals of litigation at the trial level, the use and abuse of pretrial motions, advanced case theory development and preparing witnesses for trial. of significance however is the fact that participants engage in mock trials at the end of the semester. (v) concentration or clinical substantive law seminar this subject is intended to impart skills of legislative drafting, legal writing, communication skills and research. largely, it is a subject based on simulated legal problems and active class participation is highly encouraged. (vi) advanced legal writing and advocacy to a large extent, simulated legal problems are used to introduce students to the art of appellate advocacy, appellate argument, strategies and skills for complex fact organization and persuasive writing. just like in trial advocacy, students engage in an end of the semester mock trial albeit at an appellate level. subjects taught through live – client representation in the author’s view this method is very significant in emphasizing the clinical aspect of the faculty. the relevant subjects under this head are practical and usually stimulate students to call upon the knowledge and skills learned in the other subjects. the faculty has a concentration and clinicals department whose purpose is to co-ordinate the subjects failing under this head. in general there are two broad subjects which utilize the live-client representation approach, namely:(a) concentration or clinical seminar and (b) concentration or clinical externship. in the former, students are encouraged to undertake in-depth learning and practise in chosen areas of study and at the same time participate in an externship programme, usually attendance in a court. in the latter case, students work directly with qualified practitioners with real clients and real legal problems. strictly speaking this subject directly gives effect to the 56 journal of clinical legal education june 2002 clinical nature of the faculty in the sense that students learn from their experiences with live clients and from instructions received from their supervising practitioners. if the first two modes of instruction form the foundation of the curriculum then the live client representation method provides the material with which the walls are constructed. the method allows students an opportunity to enrich and broaden the doctrinal, theoretical and practical understanding obtained from the essential foundation curriculum. students receive a detailed understanding of particular areas of law and of real dilemmas faced by practising advocates. the clinical and concentration programme has set out to achieve several goals all of which emphasize the clinical nature of the faculty. the significant ones may however be summarised into four:(i) to provide students with opportunities for applying and expanding skills acquired through prior simulated experiences especially interviewing, counseling, case planning and litigation. (ii) to provide students with opportunities for learning the substantive law of the field of practice. (iii) to provide students with opportunities to develop their ability as problem solvers and (iv) to provide students with opportunities to provide legal assistance either through the faculty’s own projects or in co-ordination with external projects. to accomplish these goals students engage in a wide range of activities including representing clients (albeit in non-litigation matters), working on simulations, attending relevant seminars, workshops and conferences organized by other organizations and working on other relevant projects. the goals enumerated are particularly relevant in promoting clinical legal education as students are expected to work in real-life situations and learn while in the process of doing so. to make the achievement of these goals a reality, it became necessary to establish a forum where students and clients would be able to encounter one another and interact. thus, the moi university legal aid clinic (mulac) was established with the aim of providing students with a forum through which they could offer legal assistance to indigent kenyans while at the same time enriching their practical knowledge and skills. it is author’s view the faculty’s clinical approach is most appropriate for achieving the objectives of any cle programme i.e. practical training of students and the provision of legal services. having described the foundations of cle in the faculty it seems logical to ask whether there have been any successes in implementation and what have been the constraints. the constraints of implementation the faculty’s mission and goals in establishing a cle programme are very noble and realistic. however, having a blue print for cle and succesfully implementing it are two different things. although it is important to examine the faculty’s cle programme in terms of its mission and goals, it serves more purpose to also assess it against other extrinsic criteria that are of relevance. for the purpose of this work, some of the criteria laid down by kenneth s. gallant would be considered as pointing some minimum requirements of a successful cle programme.28 in doing so however, the author does not lose sight of the importance of restricting himself to situation specific criteria. reference to gallant’s work is made for purposes of enabling a more concise comparative analysis of the faculty’s cle programme. reflections on the implementation of clinical legal education in moi university, kenya 57 28 gallant, k.s., (1996) “implementing clinical legal education : a checklist for programme design” (unpublished) successful implementation of cle programme does not end with the integration of the clinical approach into the overall curriculum of the law school but also calls for integration of and co-operation with other relevant institutions, such as and especially the legal and judicial community in which they operate.29 far apart from this general consideration, gallant identifies a number of questions that must be addressed by the developers and implementers of any cle programme. these questions may fall into two contexts; i.e the academic and the legal and professional contexts.30 1. the academic context the clinical approach to the teaching of law ought to be regarded as supplementing rather than replacing the academic and largely theoretical legal training. with this general statement in mind, a number of relevant issues need to be considered. they include:goals of the programme the goals set down by the developers of a cle programme would have to revolve around issues like; the skills to be taught to students (e.g. legal research, analysis and problem solving etc); ethical consideration and values; ability of students to analyse their practical experiences in terms of the social economic and political role of law and lawyers in society. teaching methods and materials should they include: simulations and case study work?; legal aid clinics in law school?; field placements?; or combination and integration of clinical methods? achieving the goals of the programme this would involve questions as to whether to create clinical courses (live client, simulation or field placement); to integrate the clinical base for the entire curriculum; to give credits to students for clinical work. academic administration will it be necessary to employ external staff or incorporate present teaching staff in implementation and what would be their status vis-a-vis the law faculty; what would be the position of the programme within the law faculty and the university; how to evaluate and control quality of instruction. student opportunities and concerns it would be important to consider questions regarding the effect that the programme would have on students e.g time constraints on students from other classes, travel considerations, costs to students and professional benefits to students such as opportunities to meet lawyers and potential employers. 2. legal and professional contexts gallant postulates that once a clinical programme involves much more than classroom simulation and begins to touch on live client representation other wider non-academic concerns come to the fore. an important issue is the attitude exhibited by lawyers to the student practice of law. it may be felt that students are infringing on lawyers’ livelihoods or that they are compromising standards. 58 journal of clinical legal education june 2002 29 ibid 30 the criteria discussed subsequently are sourced mainly from gallant’s article above consequently, it becomes necessary to design a clinical programme that takes into account these fears. it may be necessary to restrict students to those activities that they may engage in without any hindrance by the law – likewise, it may be relevant to seek the implementation of a rule or statute to allow student to practice in certain fields only. either way there must be co-operation and a sound relationship between the faculty on the one hand and the bar and bench on the other. there is also a need to address questions relating to the restrictions that may be imposed on clinical programmes, whether they are political or financial. the author recognises that, though gallant’s criteria may not have been proposed with the faculty’s clinical programme in mind, they do serve as an important (though not necessarily sufficient) benchmark for the faculty’s clinical programme. in the following section it is intended to evaluate the strengths and the weaknesses of the clinical programme as implemented in the faculty of law, moi university. this exercise is to be carried out against the background of the concerns raised by gallant and of the goals laid down by the faculty in its attempt at a clinical oriented approach to legal education. successes and failures arguably an important achievement of the faculty’s clinical programme is its revolutionary approach to the teaching of law in kenya.31 the moi university faculty of law is the younger of the two faculties of law in kenya having been preceded by the decades old nairobi university faculty of law. whereas the pedagogical approach in the latter consists mainly of theoretical classroom lectures, in the former there has been a conscious and positive attempt to incorporate practical aspects into the traditional, theoretical academic discourse.32 this revolutionary aspect is also discernable in the fact that the faculty’s clinical courses are compulsory and contribute to the assessment of students towards the acquisition of a degree. admittedly the faculty has broken new ground in this regard. additionally, the faculty has succeeded in pioneering a public interest oriented curriculum for the teaching of law. it is committed to the ideals of delivering basic legal services to citizens, graduating resourceful and efficient legal professionals with a commitment to public interest advocacy and promoting social justice. the machinery through which these ideals are expected to be achieved is the concentrations and clinical department. it is through this department that students participate in the judicial attachment programme which takes place after their second year of study. students are basically attached to a court where either a magistrate (or a judge) presides. they sit together with the magistrate (or judge) either in chambers or in court in the course of proceedings. they are ideally expected to learn by observing the way the court and lawyers conduct their business. but perhaps what is of more relevance to the development of practical skills for students is the moi university legal aid clinic (mulac) through which students render legal advice and routine legal assistance to indigent clients. apart from fulfilling the unmet legal needs of the society, students of course get the opportunity to learn from real life situations. reflections on the implementation of clinical legal education in moi university, kenya 59 31 the introduction of practical training at the under graduate level was a bold and distinct step by the faculty in the legal education field as the previously existing faculty of law at nairobi university did not embrace such an approach. 32 in nairobi university, the student association of legal aid and research (the equivalent of moi university legal aid clinic) is largely voluntary and has not been incorporated into the curriculum for law degree. moreover, the faculty’s clinical programme seeks to supplement traditional classroom teaching methods of legal education with those that capture most effectively the principles for which the faculty stands for, i.e practical learning and public service. it is for this reason that the traditional method has not been abandoned but is being used alternately with practical delivery. in the same way that students engage in critical exposition of theoretical legal issues, so too do they exercise skills of legal research, analysis and problem solving, legal writing, litigation skills, client counseling, negotiation, interviewing, mediation, arbitration and giving non-litigation advice to litigants. another pioneering aspect of the faculty’s clinical programme is its attempt at incorporating the input of other non-lawyer participants in a collaborative effort at pedagogy. for instance the courses offered under the auspices of the concentrations and clinical department emphasise close collaboration with several key players. in the refugees and human rights law concentration, the faculty seeks to collaborate with the moi university centre for refugee studies to identify appropriate and mutual areas of concern for research purposes. likewise in the environmental law concentration, the faculty seeks to collaborate with the school of environmental studies in identifying law reform issues and areas of legislative initiative. also, it has been possible to bring students into contact with people having real legal problems. this has been not only challenging but also revealing to the students who often have been called upon to use their knowledge of the law as acquired in the classroom and apply it in the relevant situation. more importantly, however students have been able to discern the fundamental difference between the law as learnt in classroom situations and the law as applied in practical life. students have come face to face with situations in which they have to make fundamental decisions, at times far removed from their own values and aspirations knowing all too well that the decisions made could have far reaching consequences for the lives of the people they advise. all this has been made possible through regular excursions to courts and jails where students meet people with various legal needs especially concerning criminal law. although, the clinical programme has set out to achieve important objectives a host of constraints have been encountered in the implementation. an important thrust of the clinical approach of the faculty is the provision of legal services to the poor. for this to materialise, it is necessary that members of the public be sensitised on the availability of free legal services. in the three years that the legal services arm of the programme (i.e the mulac) has been operational, students handled only a handful of cases. there are hardly any new cases on any given day. it might as yet turn out to be premature to indict the programme’s implementers for failing to publicise their services, as there have been a number of efforts to establish their presence. for example, the faculty maintains a stand at the annual agricultural society of kenya show during which time presentations are made to the public on the activities of the faculty. clearly however this strategy cannot be said to have been completely successful.33 although the faculty’s mission recognises the necessity of an all inclusive approach, it can be reported that the implementation has failed to embrace this ideal. specifically, there has been a failure to integrate members of the legal profession and the judicial community in the area in which the programme operates. according to gallant, one of the concerns that needs to be 60 journal of clinical legal education june 2002 33 it is worthy of note that the faculty was established in 1994 after the preparation of the mackay report. the time gap in between may reflect significant changes in public attitude. this ought to have been gauged again in the course of setting up the faculty. in any event, the mackay report was done with specific reference to the entire university rather the faculty of law itself. addressed by those who design and implement clinical programmes is the fear that student participation in the provision of legal services would interfere with the business of lawyers. further it is necessary to enlist the support of local lawyers especially in circumstances where student practice of the law is not allowed since the lawyers may be requested to assist in litigating matters in a court of law. so far, no formal arrangement has been thrashed out between the faculty and the judicial community with the result that the magistrates in whose courts students are stationed are usually not aware of their presence. the question of supervision has emerged as one of the problems affecting the faculty’s programme. only a handful of the supervising staff has shown active participation.34 this militates against one of the requirements for setting up a clinical programme that is, that members of the faculty should share not only the same ideals but also level of commitment.35 the lack of such commitment, may be explained by the fact that, most of the faculty’s lecturers are also practicing advocates. some practice within the precincts of the faculty whereas others have to travel a distance of about 200km for their class sessions.36 coupled with this is the fact that the faculty also runs an evening class programme alongside the regular one. splitting their time so as to devote adequate attention to each of these concerns becomes a hard task to the lecturers. their lethargy may also be explained by the fact that since their training as undergraduates did not incorporate a clinical component it may be difficult for them to appreciate the inherent advantages of the approach.37 the lack of active participation has also affected the operations of the legal aid clinic run by the faculty. students do not receive adequate instructions on the activities they are expected to engage in and the objectives of the programme as a whole.38 usually, students are constrained to call upon their own personal intuition and skill when dealing with clients and managing cases and files. the disarray that results dampens the morale of the students who after some time at the legal aid clinic become disinterested and begin to question the rationale behind the whole idea. this has had a telling impact on attendance, which at best is erratic and at worst non-existent.39 the undefined status of the mulac has not made the situation any better. as a matter of principle, the clinic is supposed to be an entity separated from the university administration. by this it is meant that major decisions are to be made by the administrators of the legal aid clinic without any undue interference from the university. if and when the clinic decides to pursue a matter in court, pressure ought not to be brought to bear on it if it turns out that the adversary is the university itself. the question of funding mulac’s activities is of even greater significance when one considers the issue of independence. the present status is that the mulac can only seek its own funds through the machinery of the university administration.40 it cannot do so reflections on the implementation of clinical legal education in moi university, kenya 61 34 a schedule is usually drawn according to which lecturers as supposed to attend the mulac, to supervise students’ work. most lecturers ignored it and never made an appearance. 35 gallant k. s. (op cit) 36 at least two of them have to commute for close to 800km every week, to and from the faculty. 37 almost all the lecturers received their undergraduate degrees from nairobi university. the degree however did not ( and still does not) incorporate the clinical approach. 38 before students take in prospective clients, they are required to perform a needs assessment to confirm their indigence. apart from the student’s subjective conclusions there does not seem to be any clear cut standard for assessing would-be clients. 39 since lecturers go to great lengths to attend normal classes and show a contrary attitude to the clinical programme, it is inevitable that students should feel that it is a total waste of time to attend particularly when they have other pressing courses. 40 this view was reached by the author through his discussion with one faculty member who seemed to be the only one actively involved in the programme. this member’s active participation could be explained from the fact that he does not maintain a legal practice having thought it necessary to direct his attention to the academic field only. independently since it is a policy of the university that all solicitation must be channeled through it. the lack of independence affects even the running of routine operations at the clinic. though the legal aid clinic envisions the provision of both litigation and non-litigation assistance, the former has not been made possible to date owing to some or a combination of the problems discussed above.41 further, the lack of supervision has meant that students’ rights and responsibilities are not clear. it is not exactly certain what sort of advice students can give and to what extent. it is therefore not clear whether and to what extent students will be liable for malpractice or neglect of clients’ concerns. the faculty’s clinical programme has not been sensitive to concerns raised by students. it does not address issues relating to time constraints on students and the effect of adding clinical work to students’ performance in other academic subjects. it ignores issues of travel considerations especially since the legal aid clinic is 36 km away from campus. it does not address the additional financial burden posed on the students to cater for their meals at rates which are higher than the ones they are used to back in campus. the challenge for the faculty’s clinical programme and horizons for change it is not doubted that the faculty is desirous of implementing clinical legal education in its curriculum. the clinical approach has rightly been regarded as a crucial step in revolutionizing legal education in kenya. the main challenge facing the faculty is how to strengthen the existing curriculum to ensure that it achieves the ideals for which it is set up. many of the problems are without a doubt logistical ones though there are those that have everything to do with attitudes. looking at the courses taught at the faculty, some are stated to incorporate the practical component. however, so far the approach by the lecturers has been theoretical.42 consequently, it needs to be impressed upon them that whereas they need to be flexible in their mode of teaching, the practical component as envisaged in the curriculum must be emphasised. further, there is need to address the concerns of the teaching staff so as to ensure their commitment to the whole idea. since it appears that their major constraint is time, then there may be a need to have only a few permanent staff employed to administer the legal aid clinic so that the teaching staff are engaged in minor supervisory roles. the administrative staff would be responsible for operations at the clinic including supervising student participation. whereas, it is important that the legal aid clinic enjoys the support and goodwill of the university administration, it is also important for its operations that it be allowed to take its own initiative on issues such as solicitation of funding, running routine operations, deciding which cases to handle 62 journal of clinical legal education june 2002 41 the inability of mulac to institute court proceeding has been a source of frustration since its establishment. in the eyes of the public (whose understanding of justice is the one achieved through the courts only), the mulac is so incapacitated as to be of no use to them at all. if they cannot have their day in court, then it is as good if one does not start the process at all. this may partly explain why attendance has been particularly low with only a few new clients coming in at any one moment. 42 for example legal analysis and alternative dispute resolutions as well as legal problems and client counseling are said to constitute a practical component though the approach has been purely theoretical. the same can be said of procedural courses; civil and criminal procedure, evidence and proprietary rights and transactions. and the like. in saying this, the author does not call for a permanent severance of ties with the university as this would defeat the logic of student participation. there is need to undertake a publicity campaign with respect to the activities of the legal aid clinic. such a campaign must be all-inclusive. there may be need to seek a separate legal existence for the legal aid clinic. the present scenario is that the clinic cannot pursue a claim in court on behalf of a client as it is not recognised in law as a provider of legal services. the clinic resorts to instructing advocates who sue in their own capacity . however, there are no funds to make this a possibility. there is need to come up with a clear policy on what is assessed and at what time so as to encourage serious participation by students. there is need to sincerely address student concerns e.g. transport, cost and time constraints so that they are not inconvenienced. ultimately, any clinical programme must be all rounded and inclusive. it must receive the support and goodwill from all relevant sections of the society including students, academic staff, legal and judicial community, potential donors and most importantly, the public. reflections on the implementation of clinical legal education in moi university, kenya 63 the necessity of clinical legal education in university law schools: a uk perspective james marson,* adam wilson** and mark van hoorebeek*** introduction few law schools within the united kingdom (uk) university sector have integrated clinics established as legal practices that offer live client work to the student body. clinical legal education is becoming increasingly popular within the sector as it provides numerous advantages to the student cohort and establishes an opportunity for the students to gain important practical experience, whilst enabling them to offer a valuable service to the local community. this paper proposes that the expansion and subsequent unbridling of the provision of a law clinic in the sector will provide the students with the skills necessary of graduates in the increasingly corporate, commercially motivated, uk university sector. secondly, it provides a basis for the rationale of a movement in funding bands, a study which is being undertaken by the higher education funding council for england over the proceeding three years, in consequence to the increasing costs involved to the institutions. this increase in funding, coupled with a determination from the institution and case study evidence as presented in this paper, will hopefully propel clinical legal education to the forefront of undergraduate legal studies in the uk. clinical legal education is a method of improving the student experience and offers various advantages if integrated fully into the university administrative set up. such views have been given rigorous academic coverage, however this paper further analyses the academic benefits passed on to the student populace, in relation to the potential advantages to uk universities. the necessity of clinical legal education in university law schools: a uk perspective 29 * senior lecturer in commercial law, sheffield hallam university, department of law. ** senior lecturer, sheffield hallam university, department of law. *** lecturer, university of derby, department of law. clinical legal education (cle) has been a concept long provided in institutions in the united states (us) and is increasingly being focused upon in both the western (bradney 1992;1 dickson 2000;2 and grimes 1995)3 and developing worlds (iya 2000)4 as a fundamental aspect of the undergraduate law students’ education. in the uk, whilst such skills have been addressed to varying degrees through mock court and mooting sessions, and the research skills necessary to acquire information through library exercises, the skills of communication with clients, ethical considerations in practice and the ability to put legal education into practical situations have been ignored. this has occurred (amongst other reasons) because of a lack of available expertise, funding, resources, time and accessibility. despite these limitations universities have began a process of incorporating clinics into their academic framework notwithstanding the higher costs involved, since they see these costs as counter-balanced by a unique learning experience which offers a competitive advantage against similarly placed institutions. this paper begins by outlining the necessity for cle in uk law schools and how this will become commonplace and may even become a pre-requisite for full exemptions from professional bodies including the law society. it then offers an insight into the working of a law clinic in a university law school in the uk and the benefits and potential offered to students and the institution itself. the paper further highlights how a movement towards cle may assist in the contentious study undertaken by the higher education funding council for england (hefce) over the next three years regarding the funding of undergraduate students and the possible movement in the banding of funding – an initiative which is fundamental to the funding of law clinics and possibly the survival of these university departments. the paper concludes by assessing the implications of cle to the student and institution with regard to the current structure of legal education and establishes the significant benefits of live client work for law students and the institution. necessity for a clinical approach to legal education recent evidence has demonstrated the continuing need for cle and how universities have to continue to take a serious and proactive stance to this form of pedagogic instruction. clinical legal education has been seen as providing students with an understanding of the legal environment which awaits them upon graduation and as a means to instil professional values and a sensitivity to the concept of justice.5 however, research has highlighted the limitations of clinical education and in particular whether the skills and attributes learned under clinical models actually transfers effectively to the professional world.6 research therefore continues to be a necessary component of the concept of cle to ascertain whether it does offer the skills and insight into a practical vision of legal practice which classroom based education fails. clinic is however generally considered to be of value to the student and institution if undertaken seriously and rationally, with a focus on 30 journal of clinical legal education august 2005 1 bradney, a. (1992) “ivory towers or satanic mills: choices for university law schools” 17 studies in higher education 5. 2 dickson, j. (2000) “clinical legal education in the 21st century: still educating for service?” international journal of clinical legal education, november 33. 3 grimes, r. (1995) “legal skills and clinical legal education” web journal of current legal issues 3. 4 iya, p. f. (2000) “fighting africa’s poverty and ignorance through clinical legal education: shared experiences with new initiatives for the 21st century” international journal of clinical legal education, november 13. 5 maccrate, r. (2004) “yesterday, today and tomorrow: building the continuum of legal education and profesional development” clinical law review, vol. 10, spring. 6 binder, d. a. and bergman, p. b. (2003) “taking lawyering skills training seriously” clinical law review, vol. 10, fall 301. the adoption of a real (albeit not-for-profit) law firm, and with the academic ability to extract a theoretical base from the practical experience. it is the very nature of this type of education – propelling the students as actors in the legal process rather than mere observers, which enables the full benefits of cle to be extracted, reflected upon, and re-invested into the student cohort. the benefits of cle have been witnessed by the handful of university departments with a system of such education in place.7 historically, universities were established on an academic basis with a focus on theory and critical discourse, however law students require exposure to a more practical form of education and clinics fulfil this criteria. the role and weight of live-client clinical work within the curriculum has been noted and discussed in previous literature (for an interesting discussion see tarr 1993).8 practical experience gained from work in ‘real life’ situations has been demonstrated to motivate students and to invigorate their appetite for legal practice, particularly as students have had to focus their attention on the needs of the commercial law sector which is ever more competitive. this focus on the necessity for “commercially focused”9 graduates has been highlighted by leading law firms which have observed “we firmly believe that the closer to real practice and the more realistic training is the more effective it will be”.10 this commercial focus has been reiterated at a governmental level through the lord chancellor’s advisory committee on legal education and conduct in its consultation paper, review of legal education – the initial stage. the report makes explicit reference to both the relevance of intellectual and personal skills, and the importance of seeing law in its operational context.11 this can be best gauged and assessed in the university setting where the students’ learning is paramount. the students do often gain experience in the vacations through work experience at law firms but this is often intermittent and unstructured. whilst the larger firms do seek to educate and lead the students in their learning, many students identify that they often feel ‘used’ and even a source of ‘cheap labour’. the university can offer the structure that would satisfy the need for education along with the ability for live client work that also provides an invaluable insight into legal practice beyond academic debate. live client work: an empirical insight cle provides a learning experience that is difficult to replicate in any classroom setting. with the benefit of academic guidance and structure, an ability to instil values into the students’ practice of law, and exposure to real clients with problems which are beyond mere textbook exercises, the students learn key skills and are encouraged to reflect on their experience and their role in the advice process. all students at the case study institution were provided with ‘lawyering’ skills through compulsory mooting sessions. these involved mock courtroom situations, senior academics acting as judges and arbiters, and a competitive and practical element being added through judging and prizes awarded by local law firms. these skills are vital to increase experience, raise confidence, and offer the students an insight into how the law is actually different in practice to that learned through textbooks. the necessity of clinical legal education in university law schools: a uk perspective 31 7 recent survey figures demonstrate that 43% of uk universities (90% of all universities responded) provide students with some form of law clinic education, and a further 17% expressed an intention to provide the service in the future (browne, s (2000) “a survey of pro bono activity by students in law schools in england and wales” solicitors pro bono group, london). 8 tarr, n (1993) “current issues in clinical legal education” 37 howard law journal 31. 9 legal week spring 2004. 10 firth, s. (2004) linklaters trainee partner legal week spring 2004. 11 aclec (1994) review of legal education – the initial stage, aclec, p.11. beyond these skills is the awareness of real life advice and an ability for the students to gain experience of dealing with people with problems – and the consequences of these problems. students advising clients are exposed to the emotion faced by clients, an awareness of their obtaining the relevant facts from the client and focusing their advice on areas of law where the client has a legal challenge; a sense of responsibility to be honest to the client – even where this may involve informing clients of outcomes which may be unpopular; and an appreciation of the pressure and dedication which is required of lawyers. all of these elements contribute to the professionalism which students are expected to demonstrate when they train and begin to practice, and as such they are required to be introduced as soon into the students’ education as possible. many of the above elements may be a consequence of other modules studied and identified by the variety of learning outcomes as required by bodies such as the quality assurance agency for higher education (qaa), but only the exposure in a controlled environment provided by a law clinic in a university setting can offer the rigorous legal practice experience so valuable to law students. the qaa, a body established to maintain standards in university education and to offer guidance to ensure universities achieve the best possible service to their student cohort, has identified the necessity for experiential learning and the strengths of an education which is complemented by legal practice.12 this approach to quality is underpinned by the important lessons available in a live law clinic and is where the student can begin practicing the skills expected of lawyers – professional codes of practice, expected behaviour whilst training or on vacation placement, the relevant forms and deadlines for claims, and fundamentally, whether a career as a lawyer is what they would like to pursue. such skills are essential to future practitioners and to have these instilled at as formative a stage as possible is likely to produce better equipped and more successful law graduates. if left until the professional training is studied (legal practice course or bar vocational course), or left largely unstructured in the plethora of courses available at undergraduate level, the student may find that practice is alien to the academic nature of their previous study and any poor habits formed may leave them disadvantaged in the highly competitive market they may wish to enter. the case study law clinic cle is vital in a university’s holistic approach to legal instruction as it offers the combination of both practical and theoretical bases, along with the structure of protecting and nurturing the students’ development. however, such a view must be assessed through an examination of how law clinics work in a practical environment. the case study institution is a large, new university offering a variety of law degrees and instruction at undergraduate and post-graduate level. it has established cle as a fundamental aim for the past ten years and the provision of a law clinic has grown since. the study involved the cohort of students in the 2003/04 academic session, twenty of whom successfully completed the module, and this section outlines the method of legal instruction adopted by the institution, the key skills identified and emphasised within the unit, the variety of legal cases undertaken by the law clinic team, and the students’ participation and self-evaluation in this legal practice. 32 journal of clinical legal education august 2005 12 see www.qaa.ac.uk/public/cop/copplacementfinal/contents.htm. quality issues in advice at law centres from the 1st april 2000 the former civil legal aid board was replaced by the community legal service (cls). the cls was established to create networks between advice funders, such as local authorities, and suppliers. the avowed aim was to view regional provision of advice holistically to ensure the widest possible access to information and advice. by creating links and networks between advice providers the potential client had the tools to identify the provision of legal advice in the region, and choose the advisory service most appropriate to their needs. the system also enabled the advisory service in the region to keep abreast of the advice available at other centres so that a client could be referred or signposted to another service provider if this was more appropriate. the overriding concern was that all the advice experience and expertise was made as transparent and as available as possible, so as to be as inclusive to all involved in the process. the best quality advice, to those who required free-to-access legal advice and representation, was the cls’s aim. access to advice is, however, only a fraction of the equation. potential clients naturally want assurance that the advice provider operates satisfactory procedures and proffers competent advice. to provide such reassurance the cls has developed a number of quality marks to assist in the quality process, by providing evidence of the levels of advice offered at an advice centre. this is further supplemented by quality standards being published of the areas of law which are offered – such as housing, welfare, employment and the other main areas of advice required by potential clients. there currently exist quality marks at the various levels of expertise. the hierarchy of quality of advice are as follows: information, general help and specialist help. the quality mark in information essentially entails being able to supply referral material, such as leaflets, and to provide access to cls information or access to its web page. such limited assistance would not fulfil the educational purpose of a clinic and hence shall not be considered further. the quality mark in general help typically offers information and advice to a client to help them resolve their problem. the advisor (in this situation the student) will diagnose the problem, explain available options and identify further action which the client may take. in terms of a law clinic there shall also be assistance via drafting letters and any court forms. the case study law clinic retains a quality mark in general help. once the mark has been awarded it may be displayed at the clinic and upon stationary. it is suggested that this is the most appropriate quality mark for most law clinics. the final potential quality mark lay in specialist help. this requires particular expertise in a specific field and may cover a particularly complex problem or a request for representation in court. the specialist quality mark is a prerequisite to an institution potentially being able to secure public funding for a client. in theory there is no prohibition on clinics obtaining such a quality mark.13 there are, however, numerous practical constraints. for example, a clinic may not be able to secure sufficient quantities of cases, in a particular field, to develop or provide evidence of specialised help. equally, teaching staff may not have sufficient time to retain specialised advocacy skills. all quality marks require clinics to adhere to stringent procedures established by the cls. the cls shall, at regular intervals, perform an audit to ensure that adequate standards are being retained. the quality award is advantageous in showing that satisfactory quality processes have the necessity of clinical legal education in university law schools: a uk perspective 33 13 northumbria law clinic, for example, retains quality marks in housing, welfare benefits and employment. such quality marks are only appropriate for substantial, developed clinics but demonstrate the route which law clinics may take. been achieved and maintained. clinical legal education may, potentially, cover extremely disparate fields of law for example housing, employment, consumer, family, welfare, personal injury, criminal injuries claims and commercial work.14 criminal appeals may also be covered. in short, the particular emphasis of the clinic is dependent upon the expertise and stance of the clinic staff. typical advice at case study clinic legal advice covers various jurisdictions of law and naturally derive from the clients’ needs. law clinics however have to be selective in offering the advisory service to clients, whilst also recognising their key role as instructing and nurturing the student cohort. law clinics in the us have established links between cle and the advice service and consequently can frequently offer a more in-depth service with a greater range of legal services. the uk, whilst attempting to follow this mode, also has been slower to fully adopt this method of practical integration into their law schools and this can be reflected in the advice service that is offered. the case study law clinic offers particular expertise in personal injury, criminal injuries compensation, housing and consumer disputes. these it was considered offered the widest range of legal issues and would expose the students to a variety of clients and scenarios. however, whilst the student’s education is vital in this context, the advisory service must also be taken very seriously. the legal same obligations to the client exist for the law students and law firms alike, and part of the cls partnership scheme requires that the client receives the best possible, and most appropriate, advice. as such, legal advice providers are now part of a network and prior to assuming control of a file, it is essential to ensure that the clinic is the most appropriate advice agency. due consideration further must be given to possible trade union funding, legal expenses insurance and public funding. if the client could receive funding from an agency (for example a trade union) which would also provide guidance, time and access to legal professionals that may potentially provide a better service for the client, this must be the primary concern of the clinic. this aspect of ethics is also considered when the practical issues of costs and access to private practice are undertaken. the students’ education must include the realisation that the client has to be the priority in all advice work and consequently referrals or signposting is in the best interests of the client. in each scenario where the clinic takes legal instruction, the situation poses unique learning opportunities for students. for example, one recent case concerned a criminal injuries claim for a client who had suffered post traumatic stress following a situation perceived as life threatening. the law was relatively straightforward in this instance and enabled the students to research the issues and create a formula for advice. the actual case, however, and the issues surrounding the treatment of the client and the remedies available caused students to feel aggrieved for the inadequate levels of compensation obtainable for such claims. the students in this situation began to realise the distinction between legal rights and access to what they might perceive to be justice. the lessons learned here were interesting in that injustice in cle has a real face, the students develop the skills to inform clients of the limits of the redress which they have, and a key skill was highlighted to the student lawyers in the necessity to learn to manage their own emotional reactions. the typical advice of this law clinic also highlighted a skill which can be difficult to fully develop in a classroom situation. in law schools the typical education is separated into categories of law (for example contract, tort, criminal law and so on) where the students learn how to advise clients in 34 journal of clinical legal education august 2005 14 the case study law clinic has, in recent years, successfully advised in relation to each of these fields. their legal rights. in the real world, evidently, the advisors cannot expect the client to outline the legal problem and hence the advisor has to extract the necessary information and identify the area of law applicable. a recent personal injury file embodied the principle that legal cases cannot be neatly divided into distinct areas of law. a client had, prior to instructing the law clinic, been pursuing a personal injury claim for numerous years together with issues of land law and limitation periods. this provided many useful issues for the students to reflect on, and the requirement to identify the relevant facts quickly and professionally – emotionally distancing themselves from the client. these skills enabled the law clinic to utilise client cases to guide the students through their development as potential lawyers which further enabled law clinic staff to focus the teaching and instruction of the students. method of teaching and instruction cases, as identified above, have enabled established law clinics to develop methods to instruct and guide students as to the key skills which lawyers have to possess. this is vitally important as it transcends the textbook world of academic instruction to enable students to identify the distinction between legal research and paperwork, with the skills needed to advise clients. cle has created and re-formulated these methods of teaching, and whilst there are differences between law clinics in regions of the world (as noted in the following sections), there exist approaches common to many clinical programmes, certainly within england and wales. law schools typically have modules structured to provide a series of lectures, supplemented by seminars, to instruct students on the various points of law. the seminars range in sizes from groups of up to 20, to discussions between the lecturer and small numbers of students. law clinics are slightly different to this method of teaching due to the presence of the practical base. law clinics are established as a law firm which has areas of expertise and outlines to clients in which areas advice can be provided. these firms tend to be relatively small in structure15 and as with any professional legal service offering advice, the law clinics have allocated at least one professionally qualified supervisor. due to the restraints of the legal service available, the time restraints and restraints as to the level of competency available at the clinic, potential clients are interviewed to ascertain their suitability to receiving advice, and of course to attempt to make the law service as beneficial as possible to the students. to be as inclusive as possible the students are involved in the interview process of prospective clients who have applied to the clinic for assistance. the students decide, in consultation with their supervisor at the law clinic, which files the clinic can progress. if the client’s case is not suitable the students assist in explaining why this to the client, and involve themselves in the referral or signposting of the client. this assists in the identification of suitable cases for the students and it further ensures the students are aware of the help and assistance which is available locally. following the acceptance of the client to the law clinic, the students subsequently assume full responsibility for their files and collectively undertake all the required advice work. typically, the student firms meet at weekly sessions to discuss how their files are progressing, and to discuss any issues which may be relevant such as complex questions, ethical issues, or guidance and support from their peers. these firm meetings are essentially student driven, though the exact the necessity of clinical legal education in university law schools: a uk perspective 35 15 the law clinic at sheffield hallam university, for example, adopts firms of 6. the university of northumbria’s law clinic similarly has firms with between 4–6 students. division of work between students and tutor varies from institution to institution and perhaps even between supervisors.16 each active file is reviewed in turn and the details, whilst understanding the issue of confidentiality, can be explored so that important lessons, or a group approach to a specific issue or problem, can be reviewed and used as a learning tool. the students discuss the work that they have undertaken during the previous week, and agree a work plan for the forthcoming week to ensure the students remain focused to their case and enable the firm to be professional in ensuring a speedy resolution to the clients’ problems. the supervisor’s role at these meetings is largely to guide the discussions to be relevant to the students’ learning; to ensure student understanding; and further to guarantee the expeditious treatment of files. the weekly meetings are vital to ensuring the students discuss important aspects of practical lawyering skills and these meetings are further supplemented by students’ participation in a concurrent programme of skills training. lawyering skills are clearly of great importance. to offer the advice to any client the student first has to have identified the legal problem and researched the issues to ensure the correct and timely advice is provided. skills’ training focuses predominantly on the so called ‘drain’ skills of drafting, research, advocacy, interviewing and negotiation. these skills are developed on a continuous basis through weekly classes which require consideration of key texts on the particular skill being studied. these skills are then put into practice in the file which the student has responsibility for, and are also discussed in the weekly sessions that consider the development of the students’ case. nevertheless, these teaching sessions are never theoretical, or in the abstract as so much of other legal teaching is, but it assumes a practical guise requiring, for example, a particular court form to be drafted or the application of the skill to the students weekly workload in preparation of the clients file. academic knowledge is thus applied in a practical context. a further method of instruction which offers a different perspective to the students method of learning is provided through the series of guest lectures17 available throughout the year. students are encouraged to become involved in the series as the lecturers are drawn from local practitioners, from diverse backgrounds, involved in different areas of law, both from public and private law jurisdictions, and it enables the students to interact and gain insights into the world of legal practitioners. the lectures centre on the experience of practicing law, but the lectures also move away from simply an academic exercise on points of law, and increasingly highlight the commercial pressures of legal practice, and the benefits / drawbacks from practice. students are encouraged to ask questions that have arisen from their own experience of clinic work, and to identify the need for critical reflection of their role as advisor and the justice system as a whole. academic study, coupled and underpinned by a practical grounding, is the key to this form of teaching and instruction. 36 journal of clinical legal education august 2005 16 the case study model advocates extremely active student participation. students are responsible for chairing firm meetings. students also act as secretary and are responsible for taking minutes. students are expected to suggest work plans for the forthcoming week, though guidance from the supervisor may be necessary in this regard. 17 guest lectures are an integral part of the case study law clinic programme. legal skills developed it has been demonstrated that the law clinic’s education initiative emphasises the ‘drain’ range of legal skills. the emphasis of these skills is important because of the typical skills backgrounds of the students studying at uk universities, and the tendency of many students entering clinical education to initially conceive of legal skills in a very narrow compartmentalised fashion. for example the skill of drafting legal documents may be viewed as limited solely to writing court and client forms. advocacy also may be perceived as limited to formal hearings in courts and tribunals where the advisor addresses the court directly. numerous students express their concern that they have little experience of such skills and this is one of the key elements which cle covers. cle not only attempts to instil drain skills in the students, it fundamentally encourages the students to draw upon existing experiences to identify that they do actually posses many of the skills. cle focuses the students’ attention on reflection and critical thought. it is perhaps apparent that any university modules aspiring to teach such diverse qualities ab initio would be destined to either fail or achieve extremely limited results. other modules at the case study university do introduce the skills of advocacy and research, but do so as part of other teaching – being ancillary to the module rather than fundamental to it. the advantage of clinical education is that it places these skills central to the entire philosophy of the module. by teaching skills in relation to real, everyday cases, students quickly realise that they already have the basic skills identified in the drain training, and that clinical education seeks to fine tune these in a legal setting. drain skills identified formal drafting of legal documents is vital to any lawyer and as such this aspect of the students’ training very quickly becomes a weekly event in a clinic setting. students undergo something of a baptism of fire once they realise that any document recorded on file may potentially be viewed by a court, client or another legal advisor. attendance notes become an exercise of formal drafting. letters become vital examples of drafting. in addition, students shall almost certainly have to draft witness statements or, at the very least, proofs of evidence, and it is quite likely that formal court documents such as claim form (n1) and a particulars of claim may also require drafting of the students. research is an inherent element of any academic study of law with the emphasis on continual research into statutes and case law being necessary of academics and practitioners alike. academic modules require the identification, acquisition and comprehension of numerous primary and secondary sources of law. students should enter clinical education with, at the very least, a competent grasp of research. clinical education introduces a substantial array of new texts and pushes the student into the unique area of practitioner encyclopaedias and texts. sources such as halsbury’s laws of england assume relevance for perhaps the first time and whilst these may not in essence be new skills, they are skills which are applied in new contexts. one area of the legal training which concerns students more than most is that of advocacy which can result in trepidation and fear. many students assume it is a skill completely divorced from them because of the prospect of formal presentations and public speaking. in a clinical setting, however, it quickly becomes apparent that advocacy is solely about communicating in a persuasive fashion. in this sense it is a skill nurtured every time the student seeks to persuade someone of their point of view. advocacy, through cle, may now be perceived as a daily activity. speaking to the necessity of clinical legal education in university law schools: a uk perspective 37 a client or writing a letter is advocacy; persuading firm members to pursue a particular line of research is advocacy. it is this emphasis which aids in the students’ development. having established that they already possess excellent advocacy skills, together with years of practical experience, fear is, at least partially, reduced. students may then reflect on how they have previously set about being persuasive. such socratic reflection, drawing on common experience, accelerates learning of advocacy skills. the relatively mundane setting of a file assists in ‘grounding’ advocacy and continued practice makes this skill ‘second nature’ to the student who begin to view advocacy as part of their work at the clinic. guides are then introduced which develop these skills directly as to how the students’ experience can be applied in a courtroom. this seems preferable to the more formal setting of a moot where the preoccupation with an abstract or technical academic point seems only to make advocacy more distant and frightening. all students participate in at least one interview of a client or prospective client. initially, this feature of clinical education is viewed with a degree of consternation. the students are assisted in this task by furnishing them with a suggested, though flexible, interview plan which helps to alleviate excess anxiety. role-plays also assist in this regard. students almost universally express fulfilment at having participated in an interview and the experience is usually enjoyed despite those feelings of anxiety. the ability to listen, under stress, is an essential skill developed during an interview session. students further learn that engaging in an activity, despite initial anxiety, produces invaluable rewards. negotiation is the last of the drain skills and may assume many forms in clinical education. it may involve formal negotiations, for example with a representative of organisations such as the advisory, conciliation and arbitration service. negotiation may assume an informal guise such as negotiating a workload for a particular week. negotiation may be either in verbal or written form and students are taught to be astute to the many different forms that negotiation may assume. having engaged in any form of negotiation, reflection allows participants to assess how they approached the negotiation. the merits, or otherwise, of their approach may be evaluated with the students encouraged to compare their approach towards negotiation with hypothetical models such as the aggressive, passive and principled negotiation models. fundamentally, practical experience informs development. hypothetical models are not taught in an academic abstract manner, which may fail to engage students, but are contrasted to and used to inform personal experience. student benefits the first, and perhaps salient, benefit of clinical education is that the overwhelming majority of students enjoy the experience and have found it to provide different benefits from classroom study. there are, perhaps, a variety of reasons for this. first, students can see their work directly benefiting a real person and obtain personal satisfaction from impacting positively on someone’s life. second, they can see the vocational, and academic, significance of the skills they are developing. third, they have been given responsibility and empowerment, which is often alien to students (this is something generally reserved for practicing solicitors), and they feel a duty towards their client. enjoyment is naturally a desirable end in itself but it also serves the function of ensuring students actively engage with the process of learning. the energy of firm meetings frequently compares favourably to the apathy-induced somnambulism pervasive to more traditional seminars. active engagement creates an atmosphere conducive to learning which is 38 journal of clinical legal education august 2005 almost infectious amongst the students. a team spirit is achieved where students assist each other rather than viewing others in the class as competition for grades or jobs. a further benefit is that many students grow in confidence because of the ‘close-knit’ community of the clinic. by working in small firms a supportive, secure atmosphere is, usually, forged. students quickly feel at ease with other firm members through sheer exposure and feelings of shared experience. equally, there is no hiding place in clinical education. students are required to participate in firm meetings and to develop assertiveness skills required to chair meetings. students in seminars frequently do not participate in discussions and fail to achieve their potential, but clinics require full participation. it is also evident that academic ability is not necessarily predictive of clinical ability. many students who are less able academically than their peers thrive in the clinic setting and their confidence blossoms, which turn reflects positively in their other module assessment. a related, but distinct, feature is that interpersonal skills are nurtured. students must be able to empathise with a client’s perspective and this ‘human’ aspect is also coupled with the ‘commercial’ element of the case. this feature assumes salient importance and as such cannot be underestimated. such facets are typically ignored in an academic exposition of the law. a further benefit of cle is that it shows the practical relevance of the law studied on other modules. this renews interest in the law programme holistically. furthermore, by applying the law to an actual case students frequently understand concepts previously less clear to them. cle may fundamentally offer tangible benefits for the students as it has the capacity to achieve deep learning – for numerous reasons. first, students must engage in fact analysis. in academic modules students are furnished with a question which requires the law to be applied to a series of distinct facts. in clinical education students are deprived even of a set of coherently presented facts. they must understand the law in sufficient depth to determine for themselves which elements of the client’s story are important to the case, and which should be disregarded. in addition, practical problems, as found in clinics, rarely adhere to neat, distinct compartments. a case may require consideration of perhaps company law, land law, tort, civil procedure, professional ethics, evidence, negotiation, drafting and remedies. the ability to forge coherent links between such distinct and diverse elements, and view the cases as often a mixture of different legal jurisdictions, requires clarity of mind. of fundamental significance is the fact that students also acquire an understanding of law in context. legal rights are juxtaposed to practical considerations. questions of cost and commercial relationships acquire a status at least comparable, if not prevailing, over formal legal rights. increasingly, law firms are insisting students have an understanding of the commercial aspect of legal practice (beyond impressive grades) and cle provides this insight. issues such as access to justice and legal procedures acquire a significance not otherwise encountered or emphasised. finally, the complex, but fundamental, issue of ethics in legal work is provided. students are required to have recourse to relevant parts of the guide to the professional conduct of solicitors 1999 and are presented with the opportunity to consider whether personal ethics require standards which are even more stringent than those imposed by professional bodies. this requires a reflective, critical and analytical approach to their studies which requires a great deal from the students involved in clinics. this in turn provides an education experience which establishes skills that are transferable, and gives an awareness of legal practice which classroom studies (or arguably vacation voluntary work) cannot provide. the necessity of clinical legal education in university law schools: a uk perspective 39 uk and international approach as emphasised in the introductory paragraphs to this paper, it was recognised that the uk has only recently, on a relative basis, began seriously considering the value of cle and practicing this in their law schools. the us, by comparison, has for many years established and refined this form of education which can be witnessed by the breadth and depth of cle offered. in the case study institution to which this paper has based the majority of its study, predominately the cases heard involve consumer problems and basic, entry-level, contractual disputes.18 cle has grown throughout the educational legal community (as indeed reflected by journals such as this) and can be evidenced in countries as diverse as abkhazia,19 armenia,20 cambodia,21 mexico,22 mozambique,23 poland,24 south africa25 and turkey26 (to name but a few). this international dimension is encouraging and in part demonstrates the seriousness with which educators and practitioners are viewing the necessity for cle at the undergraduate level. much research has been conducted on cle in the us but relatively little elsewhere. it is also the case that the us has taken cle seriously for a number of years and is therefore a model which other countries are looking towards for guidance and comparison (using it as a benchmarking tool to a certain extent). the us approach has been significantly more proactive, inclusive and holistic in the provision of cle which can be witnessed through the details of subject areas as listed in the various us-based directories.27 it is also noticeable of the way in which uk institutions trail behind their us counterparts when viewing the provision of cle by institutions such as roger williams university which offers three types of law clinic for student participation, including community justice, criminal defence and disability law jurisdictions. the community justice clinic involves direct client contact, handling a case from beginning to end which includes the interviewing, counselling, investigation, drafting of documents, advocacy and negotiation elements. this ensures all facets of the process of justice are included and gives the student a unique insight into the justice system to which they may wish to enter. the criminal defence clinic enables the student to directly represent clients on matters as diverse as traffic offences, drug possession, domestic violence and disorderly conduct. the disability law clinic focuses on protecting rights in areas of social security, but this further focuses on low-income clients and legal advice in areas including divorce, supervision orders, custody matters and paternity issues. this level of contact with clients, coupled with regular seminars, classes considering legal techniques, and tutor supervision demonstrates an exposure to the legal profession which institutions based in the uk are at present unlikely to be in a position to match. this is, however, a model which progressive institutions in the uk are looking towards, and expansion is the next step following the successful incorporation of cle law clinics. as a consequence law clinics are being established on a wider basis amongst the 40 journal of clinical legal education august 2005 18 over the years that the law clinic has been established, various cases have been addressed, but the cases most frequently undertaken are those involving consumer disputes. this is due to the time limits involved in uk university law clinics, the availability of supervisors to assist the students, and the cls partnership which may require the complex cases to be referred to a more appropriate advisory agency. 19 sokhumi state university. 20 yerevan state university. 21 pannasastra university. 22 cide law school. 23 eduardo mondlane university. 24 warsaw university. 25 university of natal, durban. 26 bilgi university, istanbul. 27 such as the clinical legal education association, the directory of clinical legal educators and association of american law schools, section on clinical legal education. uk university sector than previously undertaken, and they are also being expanded on an intrauniversity basis. whilst the entire student cohort is unable to participate in the legal practice of their department, it is increasingly being made available to second and third year students to be more inclusive; there is a competitive element to gain entry to the system to ensure the participants benefit from the experience; and the success of the project at the case study institution has led to greater resources being made available from the departmental funds. one area where there are similarities is on the necessity for student independence, and a studentfocused approach to self directed learning and reflection. the students are encouraged to participate actively in their own educational growth – both personally and professionally – and this is continually assessed to ensure the student understands how to measure their success. this is clearly based on their skills, preparation and presentation of advice to clients rather than whether the client received the advice they were expecting, or whether the client ‘won’ their case. reflection, in both the us and uk models, is a key feature of cle and provides this invaluable learning experience. live client work and hefce assessment of funding the second element to the necessity of cle in uk universities is how it may assist in gaining additional funding for the sector. it may be argued that law schools have often suffered from underfunding compared with other subject areas. the study being undertaken by hefce is an opportunity to demonstrate how teaching in law schools is different from the other ‘arts’ subjects – and cle may be the effective vehicle for the eventual change in funding bands. hefce is the body that is charged with assessing and distributing the public funds which universities receive for the education they provide. the funding is based on the numbers of students expected at the institution and each student has a monetary value, which when multiplied by the student cohort, is the level of funding received by each university department. the current method of assessing funding levels is based on expenditure as reported by the institution and is further sub-divided on the basis of the nature of the teaching. there are four bands which identifies the level of funding provided to the institution multiplied per student – band a28 is the highest and involves mainly clinical subjects such as medicine and dentistry; band b29 covers laboratory based teaching such as engineering and technology subjects; band c30 involves less expensive laboratory work, fieldwork dependent subjects and drama; and band d,31 the lowest band, includes all other subjects and, importantly for this paper, law. it applies to law due to the assumption of the subject being taught wholly in lecture theatres and seminars / tutorials which is increasingly unrealistic. this funding has led to concerns over the feasibility of providing free education in the sector and may also be unrealistic due to the changing nature of university education. due to these concerns it was decided at its meeting in december 200332 that hefce would review its methods of funding and as a consequence would adopt a cost-based approach – the transparent approach to costing model. this study is estimated to take three years to complete and as such it is proposed that the use of law clinics and exposure to live client situations would not only assist the students in their learning the necessity of clinical legal education in university law schools: a uk perspective 41 28 this band has a weighting of 4. 29 this band has a weighting of 1.7. 30 this band has a weighting of 1.3. 31 this band has a weighting of 1 – in the 2004/5 session this is estimated to be at a level of £3,400 per full-time student. 32 as published on tuesday 23rd december 2003 – www.hefce.ac.uk/news/hefce/2003/funding.asp. but also aid in the movement of the subject into a more realistic band which would ease the financial burdens experienced by law departments in the sector. this debate has already begun and has led to discussions by groups (see burridge 2003)33 which argue the nature of law teaching necessitates higher funding and additional resources which are peculiar to legal training and should not be banded with other social sciences. the requirement of law reports, statutes, subscription to various paper and electronic databases and journals (especially lexis-nexis and westlaw), and of course teaching practical lawyer skills involves higher costs than traditional band d subjects, and the law clinics are essential to ensure the holistic and rounded approach to the students’ educational experience. these resources are not simply referred to but have to be ‘used’ and applied which is more akin to a workshop or laboratory situation than simply a tutor / student dialogue in a seminar room. institutional benefits if these clinics are established, or are amongst the strategic planning of university law departments, the benefits for the institution are transparent and tangible. the funding assessment being conducted is likely to recognise the unrealistic nature of band d funding and the distinct and unique teaching and the variety of learning methods required at law schools. the use of case law; law reports; the necessity for access to up-to-date materials in dynamic areas such as european union and employment law; the necessity for research skills, advocacy and effective written and oral communication, and the interactive nature of legal education, which will be underpinned by the expansion of live client education in law clinics, will result in a strong case for movement into band c with its criteria of fieldwork and laboratory-type education. cle, and the practical nature of law, is absolutely essential to the students’ development and as such is a compulsory component in the teaching of law undergraduates. the increase in funding will generate a greater opportunity for legally-qualified staff to be retained by the institutions which can then be employed in law clinics which will also enable the expansion of the service to the student body and local community. links between the university, local community and local law firms will benefit from the law clinics due to the increased interaction between the not-for-profit legal service being provided (often, as with the case study law clinic, regulated to provide quality generalist advice through the cls commission) and the individuals who utilise the advice agency. law firms also witness the benefit of this type of legal training and the important skills instilled in the graduates which makes students with this experience more employable and successful in the sector. as employability is increasingly being contained in higher education statistics, league tables and university prospectuses, law clinics offer only positive effects for the institutions with the capacity and desire to establish them. 42 journal of clinical legal education august 2005 33 burridge, r (2003) ‘reassessing band funding for law: a discussion paper’ www.ukcle.ac.uk/resources/banding.html. conclusion this paper has sought to demonstrate the necessity of a clinical approach to legal education, and reasons why such an approach must be taken by institutions to ensure future law graduates are being given the required training and skills in a structured environment. the case study has outlined the provision of live client work in a university institution and how it benefits all the actors involved through skills, training, experience and an appreciation of working as a lawyer. no simulation or class-room based session can offer the student a true insight into the pressures and, at times, exhilaration of legal practice, and this experience can only assist in producing better prepared trainee lawyers. institutions cannot offer the service without a complete appreciation of the time and costs involved, but this paper has aimed to establish how it works in a modern uk university, the wider implications for all publicly funded university law departments, and the complementary benefits for the students and institution. cle is becoming an option that students will be looking towards when choosing their education provider, and with the advent of top-up fees and students contributing financially to their own education, institutions without this option may become increasingly disadvantaged. the necessity of clinical legal education in university law schools: a uk perspective 43 reviewed article teaching and learning in clinic lean thinking in a uk university law clinic: a reflective case study alex nicholson & dr. alireza pakgohar, sheffield hallam university[footnoteref:1]. [1: alex nicholson is a principal lecturer and deputy head of law at sheffield hallam university. dr alireza pakgohar is a senior lecturer in business operations and systems at sheffield hallam university. ] abstract a law clinic typically involves staff and students in a range of complex processes that are highly resource-intensive and which have the potential to detract from core value-adding activities. this paper aims to highlight the challenges associated with resourcing a university law clinic, and evaluate the extent to which lean management is able to provide solutions. it is submitted that proactive and deliberate application of lean management philosophies to law clinic process design has the potential to both reduce resource intensity and enhance value. a literature review was conducted in order to identify lean management principles and methodologies that might be applicable. a case study approach was then used to evaluate key resourcing challenges faced by a uk university law clinic and to explore the extent to which lean thinking might help to overcome them. there is very little literature which discusses the application of lean thinking in the higher education sector, and none which considers the university law clinic context specifically. this paper will provide law school leaders with a resource that will enable them to evaluate and design their clinic processes more effectively, improving the wellbeing of clinic staff and enhancing the pedagogical value of clinic work for students. it will also contribute to the emerging body of literature which highlights the benefits of lean thinking within the higher education sector. i introduction about the law clinic at sheffield hallam university the law clinic at sheffield hallam university (the ‘clinic’) exists within the helena kennedy centre for international justice (hkc) and is underpinned by the hkc values, which include: access to justice; human rights; ethical practice; and equality[footnoteref:2]. it is regulated by the solicitors regulation authority (which ultimately ensures the quality of the clinic's advice and associated procedures) and operates on a purely pro bono basis, offering legal advice to staff, students and members of the public, across a range of areas of law. [2: helena kennedy centre. helena kennedy centre for international justice. (2019). retrievd from: https://www.shu.ac.uk/about-us/academic-departments/law-and-criminology/the-helena-kennedy-centre-for-international-justice.] case work in the clinic is conducted by undergraduate law students, under the supervision of academic staff who are typically also qualified solicitors. this work includes: interviewing clients; conducting legal research; drafting letters; and operating case management software. for client confidentiality reasons, the clinic operates within a locked-down space comprising: a reception area; five meeting/teaching rooms; and an open-plan area in which students can complete case work. the clinic is currently an optional, 20 credit module for final year undergraduate law students at the university; there are 40 places in each academic year, which are offered on a first-come, first-served basis. students are organised into ‘firms’ of six students and assigned a ‘firm supervisor’, who is both an academic member of staff and an experienced practitioner; many of the firm supervisors are qualified solicitors and retain their practising certificate. the supervisor's responsibility is to lead their firm(s) in taking on and acting for a number of clients over the course of the academic year, whilst at the same time ensuring that the pedagogical value of its activities for the students is maximised throughout. in recent years the clinic has operated across a wide range of discipline areas, including: wills, family, small claims, company and property. students gain academic credit for their work by compiling and submitting an individual portfolio, which is formally graded at the end of the academic year. background the law subject group at sheffield hallam university (‘subject group’) has a strong reputation for the applied nature of its courses, and in that sense is highly aligned to its wider organisational strategy[footnoteref:3]. however, the applied curriculum is becoming a highly competitive space within the market. whilst the subject group was one of the first in the uk to offer its students the opportunity to take part in a law clinic some 25 years ago today most university law schools now offer some form of clinic or pro bono experience; what was once an "augmented deliverable" for the subject group is now an "expected deliverable" within the sector[footnoteref:4]. therefore, in order to maintain its competitive advantage, the subject group has recently established its own fully functioning legal practice, shu law limited (‘shu law’) (a move only made possible in recent years as a result of deregulation within the legal services sector under the legal services act 2007, making it possible for non-lawyers and their organisations to own and manage a legal practice known as an "alternative business structure" or "abs"), in order to facilitate a significant upscaling of its clinical provision both in terms of student numbers and the time spent by those students within a live-client environment. [3: sheffield hallam university. transforming lives. (2017). retrieved from: https://www.shu.ac.uk/~/media/home/campaigns/files/transforming-lives.pdf. ] [4: levitt, t. ‘marketing success through differentiation-of anything’. (1980). harvard business review, 58(1), 83-91] the rationale for moving from a university law clinic to an abs teaching law firm is two-fold. firstly, this will expand the range of legal activities that can be undertaken, and secondly it will expand the number of students who can participate in clinical activities as part of their studies. it is the second of these two objectives that is the focus of this paper. the intention is to move from 40 students undertaking 20 credits of clinical study in their final year, to all students undertaking clinical study, across all three years of their programme. once fully operational, approximately 750-900 law students will be studying within shu law at any one time, many of whom will be spending up to three times more of their time engaged in clinical activities than has historically been the case. the move to shu law therefore represents a vast upscaling of the current clinical provision offered by the clinic. however as is common within the sector[footnoteref:5] the learning and teaching process that operates in the clinic is resource intensive, and this presents certain challenges that risk being compounded by the planned upscaling. [5: bilgin, a. a., rowe, a. d., & clark, l. ‘academic workload implications of assessing student learning in work-integrated learning’. (2017). asia-pacific journal of cooperative education, 18(2), 167-183.] given the increasing focus on employability within the higher education (‘he’) sector (as evidenced by its key role in the assessment of teaching quality in the uk; see office for students, 2018), the value of clinical legal education as a means of preparing students for employment[footnoteref:6], and the potential for such activities to count as qualifying work experience under the new framework for qualification as a solicitor in england and wales[footnoteref:7], it seems likely that many other law schools will also seek to expand their clinical activities in the coming months and years. using the clinic as a case study, this paper explores the extent to which lean management principles and methodologies are able to support the development of new and/or revised processes that might assist law clinics both in the uk and internationally to enhance their effectiveness, efficiency, scalability, and long-term sustainability. [6: bleadsdale-hill, l., & wragg, p. ‘models of clinic and their value to students, universities and the community in the post-2012 fees era’. (2013). international journal of clinical legal education, 19, 257-270.] [7: dunn r., roper v., & kennedy, v. ‘clinical legal education as qualifying work experience for solicitors’. (2018). the law teacher, 52(4), 439-452.] the paper is organised in six parts. the next section reviews the lean management literature in general and that which relates to he in particular. research methodology is discussed in section 3. a case study analysis of existing clinic practices and discussion of findings with resultant proposals and recommendations for law clinic process design are then outlined in section 4. the main conclusions are then presented in section 5, together with a summary of limitations and suggestions for future research. ii lean management in theory: a view from the literature within operations and process management, ‘lean’ is a multifaceted and evolving concept, encompassing a collection of related ideas and methodologies, and a range of almost synonymous terms. its origins can be found in the toyota production system which rose to international fame in the mid-twentieth century for its high quality and efficient approach to automobile manufacturing and logistics[footnoteref:8], and then in the seminal work of krafcik who coined the phrase "lean production"[footnoteref:9] to describe manufacturing processes and systems that were designed to eliminate wastes (or "muda") and maximise both quality and continuous flow. krafcik found that such lean management policies had significant potential to enhance both productivity and quality. initially ‘lean’ was considered to be a purely manufacturing concept, but today it is accepted that lean principles have broader application to operations more generally[footnoteref:10]. [8: see ohno, t. toyota production system: beyond large-scale production, (1988). cambridge, usa: productivity press. (original work published 1978).] [9: krafcik, j. f. ‘triumph of the lean production system. sloan management’. (1988). review, 30(1), 41-52.] [10: slack, n., brandon-jones, a., johnston, r., & betts, a. operations and process management (2015). (4th ed). harlow: pearson., pp. 364] lean production can be divided into five distinct phases that have the potential to assist organisations across the world in all industries to improve their processes and to eliminate their wastes: (1) identify precisely what customers value; (2) establish precisely how that value is delivered by the organisation, and eliminate activities that do not add value; (3) ensure that products and/or information flow(s) seamlessly through the value process; (4) deliver only what is demanded by the customer; and (5) strive for perfection in process design[footnoteref:11]. within each of these phases, a myriad of scientific tools and techniques exist that can be utilised to analyse existing processes, identify muda, and devise process improvement solutions. [11: womack, j. p., & jones, d. t. lean thinking. (2003). (2nd ed). london: simon & schuster.] the application of lean thinking in manufacturing has been extensively studied[footnoteref:12]. the application of lean principles in the service sector has also been studied for several years[footnoteref:13]. in their study, piercy & rich[footnoteref:14] argued that a lean approach can be relatively easy to apply with a minimal investment in training, producing significant improvement across an organisation's activities. [12: forza, c. ‘work organization in lean production and traditional plants: what are the differences?’. (1996). international journal of operations & production management, 16(2), 42–62.; motwani, j. ‘a business process change framework for examining lean manufacturing: a case study’. (2003). industrial management & data systems, 103(5), 339–346.; kumar, m., antony, j. singh, r. k., tiwari, m. k., & perry, d. ‘implementing the lean sigma framework in an indian sme: a case study’. (2006). production planning and control, 17(4), 407-423.; pattanaik, l.n., & sharma, b.p. ‘implementing lean manufacturing with cellular layout: a case study’. (2009). international journal of advanced manufacturing technology, 42(7), 772-779.; vinodh, s., gautham, s.g. & anesh ramiya r. ‘implementing lean sigma framework in an indian automotive valves manufacturing organisation: a case study’. (2011). production planning & control, 22(7), 708-722.; forno, a., pereira, f., & forcellini, f. ‘value stream mapping: a study about the problems and challenges found in the literature from the past 15 years about application of lean tools’. (2014). the international journal of advanced manufacturing technology, 72(5-8), 779–790.; bevilacqua, m., ciarapica, f. e. & paciarotti, c. ‘implementing lean information management: the case study of an automotive company’. (2015). production planning & control, 26(10), 753-768.; johansson, p. e., & osterman, c. ‘conceptions and operational use of value and waste in lean manufacturing – an interpretivist approach’. (2017). international journal of production research, 55(23), 6903-6915.; dadashnejad, a., & valmohammadi, c. ‘investigating the effect of value stream mapping on overall equipment effectiveness: a case study’. (2019). total quality management & business excellence, 30(3-4), 466-482.] [13: womack, j. p., & jones, d. t. lean thinking (2003). (2nd ed). london: simon & schuster.; atkinson, p. ‘creating and implementing lean strategies’. (2004). management services, 48(2), 18-33.; abdi, f., shavarini, s. & hoseini, s. ‘glean lean: how to use lean approach in services industries?’ (2006). journal of services research, 6, 191-206.; piercy, n., & rich, n. lean transformation in the pure service environment: the case of the call service centre. (2009). international journal of operations & production management, 29(1), 54 76.; leyer, m., vogel, l., & moormann, j., ‘twenty years research on lean management in services: results from a meta-review’. (2015). international journal of services and operations management, 21(4), 389-419.] [14: piercy and rich, (2009). ] as lean thinking in practice has moved beyond the manufacturing context, so too has the literature. however, there are still many industries/sectors in relation to which the applicability and benefits of lean thinking remain under-researched, and recent comprehensive and influential literature reviews call for the implementation of lean thinking in a wider range of fields[footnoteref:15]. [15: marodin, g. a., & saurin, t. a. ‘implementing lean production systems: research areas and opportunities for future studies’. (2013). international journal of production research, 51(22), 6663-6680.; jasti, n. v. k., & kodali, r. ‘lean production: literature review and trends’. (2015). international journal of production research, 53(3), 867-885.] in response to these calls, very recent studies have begun to evaluate the utility of lean thinking within public sector[footnoteref:16] and even education contexts[footnoteref:17], but its explicit application within he has thus far been relatively limited[footnoteref:18]. some research has emerged which specifically evidences the benefits of lean thinking for the sector, although it typically relates to central university functions[footnoteref:19] rather than curriculum design. particularly at a time when the value of university education is being closely scrutinised[footnoteref:20]there is both scope for and need of greater utilisation of lean management methodologies within faculties and at a course level[footnoteref:21]. [16: kregel, i., & coners, a. ‘introducing lean six sigma to a german municipality: an action research report’. (2018). international journal of lean six sigma, 9(2), 221-237.] [17: sfakianaki, e., & kakouris, a. ‘lean thinking for education: development and validation of an instrument’. (2019). international journal of quality & reliability management.] [18: hess, j.d., & benjamin, b. a. ‘applying lean six sigma within the university: opportunities for process improvement and cultural change.’ (2015). international journal of lean six sigma, 6(3), 249-262.; thomas, a., antony, j., francis, m., & fisher, r. ‘a comparative study of lean implementation in higher and further education institutions in the uk’. (2015). international journal of quality & reliability management, 32(9), 982-996.; narayanamurthy, g., gurumurthy, a., and chockalingam, r. ‘applying lean thinking in an educational institute – an action research’. (2017). international journal of productivity and performance management, 66(5), 598-629.] [19: see for example: balzer, w. k., brodke, m. h., & kizhakethalackal, e. t. ‘lean higher education: successes, challenges, and realizing potential’. (2015). international journal of quality & reliability management, 32(9), 924-933.] [20: department for education. review of post-18 education and funding: terms of reference. (2018). retrieved from: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/682348/post_18_review_-_tor.pdf.; nicholson, a. ‘the value of a law degree.’ (2019). the law teacher, doi: 10.1080/03069400.2019.1633117.9] [21: emiliani, m. l. ‘engaging faculty in lean teaching’. (2015). international journal of lean six sigma, 6(1).] in he and university settings, lean principles could be utilised to improve processes in: curriculum delivery; business and auxiliary services; admissions and enrolment management; and research[footnoteref:22]. however, some caution here is appropriate. whilst the potential benefits of lean management are well established, its application to complex services may attract opposition from professionals who object to apparent attempts to break down their work into simplified and measurable, discrete processes[footnoteref:23]. this argument is particularly likely to arise within a he context as many academics may view ‘efficiency’ as a commercial aim that directly threatens the educational aims of the university care must be taken to ensure that employees involved in any lean management intervention understand how any changes will result in enhancements rather than compromising the value delivered to students. [22: hess, j.d., & benjamin, b. a. ‘applying lean six sigma within the university: opportunities for process improvement and cultural change’. (2015). international journal of lean six sigma, 6(3), 249-262] [23: slack, n., brandon-jones, a., johnston, r., & betts, a. operations and process management (2015). (4th ed). harlow: pearson, pp. 26] there are some articles about the successful application of lean thinking in he: emiliani[footnoteref:24] deployed a popular continuous improvement methodology to enhance the processes for ten courses contained in a part-time executive master’s degree program in management; stratton, rudy, sauer, perman and jennings[footnoteref:25] used lean thinking philosophies to improve medical education processes; and doman[footnoteref:26] utilised lean management tools to improve university grade change processes, involving students in the process. [24: emiliani, m.l. ‘using "kaizen" to improve graduate business school degree programs’. (2005). quality assurance in education, 13(1), 37-52.] [25: stratton, t.d., rudy, d.w., sauer, m.j., perman, j.a., & jennings, c.d. ‘lessons from industry: one school’s transformation toward ‘lean’ curricular governance’. (2007). academic medicine, 82(4), 331-340.] [26: doman, m.s. ‘a new lean paradigm in higher education: a case study’. (2011). quality assurance in education, 19(3), 248-262.] thomas et al.[footnoteref:27] conducted an investigation in the uk into the differences that exist between he institutions (‘hei’) and further education institutions (‘fei’) in the methods and practices deployed in their development and implementation of lean initiatives. the research revealed that uk feis have used lean principles over a longer period and gained more experience of its applications than their he counterparts, though typically this has been achieved through consultancy-based projects, rather than by being embedded into organisational culture. by contrast, lean initiatives in uk heis have been conducted in a more systematic and holistic manner across the organisations, albeit these are mostly still in the early stages of implementation. [27: thomas, a., antony, j., francis, m., & fisher, r. ‘a comparative study of lean implementation in higher and further education institutions in the uk’. (2015). international journal of quality & reliability management, 32(9), 982-996.] narayanamurthy et al.[footnoteref:28] proposed a structured procedure for the implementation of lean thinking in an educational institute in india. they compared performance measures such as absenteeism, utilisation, and learning before and after implementation of lean solutions to prove the effectiveness thereof. [28: narayanamurthy, g., gurumurthy, a., and chockalingam, r. applying lean thinking in an educational institute – an action research. (2017). international journal of productivity and performance management, 66(5), 598-629.] the application of lean thinking in legal practice is a neglected area in academic journal papers. to the best of the authors' knowledge, henderson[footnoteref:29] is the only published paper that looks at the lean law concept as an alternative approach for larger law firms. however, this study did not address any specific application of lean thinking in a law firm as a case study. moreover, the authors were not able to find a paper which considers the application of lean methodologies to a law clinic context. so this paper will contribute to lean management literature in the areas of legal practice and legal education. [29: henderson, w. ‘from big law to lean law’. (2014). international review of law and economics, 38, 5–16.] iii research methodology the aim of this study is to address the challenges associated with resourcing in a university law clinic, and to evaluate the extent to which lean management tools and techniques may be able to provide solutions. to achieve this, a case study approach was adopted to investigate the applicability of lean management tools to the clinic's operational activities. the utilised case study strategy in this paper is in line with many other research papers in lean management studies[footnoteref:30]. a good case study reveals how a problem can be dealt with[footnoteref:31]. [30: seth, d., & gupta, v. ‘application of value stream mapping for lean operations and cycle time reduction: an indian case study’. (2005). production, planning & control, 16(1), 44-59.; doman, m.s. ‘a new lean paradigm in higher education: a case study’. (2011). quality assurance in education, 19(3), 248-262.; bevilacqua, m., ciarapica, f. e. & paciarotti, c. ‘implementing lean information management: the case study of an automotive company’. (2015). production planning & control, 26(10), 753-768.; narayanamurthy, g., gurumurthy, a., and chockalingam, r. ‘applying lean thinking in an educational institute – an action research’. (2017). international journal of productivity and performance management, 66(5), 598-629.] [31: childe, s. ‘case studies in the management of operations’. (2017). production planning & control, 28(1), 1-1.] the lead researcher is an academic from within the subject group, with first-hand experience of and leadership responsibility for the clinic's processes. this role is important both to facilitate data collection, but also since leadership commitment is a key factor of success in any lean management initiatives[footnoteref:32]. the second researcher is an academic from outside of the subject group, but with particular expertise in lean management; this researcher is able to bring a degree of objectivity to the study. [32: alefari, m., salonitis, k., & xu, y. ‘the role of leadership in implementing lean manufacturing’. (2017). procedia cirp, 63, 756–761.] the roles and responsibilities of the research team enabled a participative approach to tackling the objectives of the study. various lean tools have been deployed to understand their applicability to the current clinic context. the researchers had access to all relevant documentation such as university procedures and regulations, minutes of meetings and other related archives[footnoteref:33]. data were also collected through personal observations and communication with current clinic staff. [33: yin, r.k. case study research and applications: design and methods. (2018). los angeles: sage.] iv. case study analysis iv.i using lean tools to identify current issues with clinic process pareto analysis key to the success of any lean management intervention is an assessment of the current state, followed by effective communication of the impetus for change to relevant parts of the organisation[footnoteref:34]. to achieve this, diagnostic tools can be useful not only in identifying what the current issues are, but also in illustrating/explaining those issues to colleagues/employees[footnoteref:35]. [34: feld, w. m. lean manufacturing: tools, techniques and how to use them. (2001). boca raton: crc press., pp.7] [35: see slack, n., brandon-jones, a., johnston, r., & betts, a. operations and process management (2015). (4th ed). harlow: pearson., pp. 459-463] the reported experience of teaching staff within the clinic was that they spent vastly more working hours supervising students in this context, than the university is able to award them as part of its academic work planning process. the authors therefore initially conducted a pareto analysis with clinic staff (see figure 1) in order to ascertain where academic time was predominantly being spent. a pareto analysis plots time engaged against process activities in a graphical form, with the aim of identifying which of those activities dominate. a common finding is that a majority (often as much as 80%) of process time is spent on a minority (often as little as 20%) of process activity; a phenomenon commonly referred to as the "pareto principle"[footnoteref:36]. such an analysis provides a useful focus for process improvement. [36: doyle, c. ‘pareto principle.’ in a dictionary of marketing (2016). (4th ed.). oxford: oxford university press.] as the pareto analysis at figure 1 illustrates: academics working in the clinic report that, as much as 50% of their total time spent working in the clinic or on clinic related activities is being spent on marking formative work produced by students on an almost daily basis, and providing feedback on that work. fig. 1: pareto analysis of clinic supervisor workload cause and effect analysis next, the authors mapped out the cited reasons for work overloading into an ishikawa (or "fishbone") diagram, which serves to highlight possible cause and effect relationships that might be worthy of further investigation and/or process improvement initiatives. the resultant diagram at figure 2 illustrates some of the reasons why members of clinic staff believed that they were overloaded. it is evident from these wide ranging factors that there are a range of inherent and systemic issues with the clinic process design which would benefit from a thorough examination. fig. 2: cause and effect analysis it is important to remember that the focus of any such review must not be on efficiency alone, as this risks merely redesigning and improving outdated processes that may no longer be fit for purpose, and potentially missing opportunities to completely reengineer the way that value is delivered, which might both reduce cost and increase quality[footnoteref:37]. certain historic assumptions within the subject group currently underpin the way that processes are designed and evaluated, for example: members of staff are either clinical or academic; clinical members of staff have practice experience and/or practising certificates; ‘clinical’ modules involve regular marking and feedback whilst ‘academic’ modules do not; and firm supervisors must ensure the accuracy and quality of client advice. if the subject group is to maintain its competitive edge in the face of vastly changing market demands, and to deliver on its commitment to offer all students, at all levels, employability-enhancing work experience in shu law, it is essential that assumptions such as these are not allowed to dictate the limits of what is possible. [37: hammer, m. ‘reengineering work: don't automate, obliterate’. (1990). harvard business review, 68(4), 103-112.] value stream mapping (‘vsm’) some lean management techniques serve both a diagnostic and future planning function value stream mapping is one such technique, which can be used to illustrate both the current and future states of a value process[footnoteref:38]. womack and jones[footnoteref:39] argue that value stream mapping enables managers to distinguish between those activities which create value (or which are simply unavoidable), from muda: those which are wasteful and avoidable. in a service context, examples of muda might include: excessive quality, delay, under-utilised resources, duplication and/or a lack of standardisation[footnoteref:40]. [38: forno, a., pereira, f., & forcellini, f. ‘value stream mapping: a study about the problems and challenges found in the literature from the past 15 years about application of lean tools’. (2014). the international journal of advanced manufacturing technology, 72(5-8), 779–790.] [39: womack, j. p., & jones, d. t. lean thinking (2003). (2nd ed). london: simon & schuster., pp.20] [40: andrés-lópez, e., gonzález-requena, i., & sanz-lobera, a. ‘lean service: reassessment of lean manufacturing for service activities’. (2015). procedia engineering, 132, 23–30] figure 3 shows a value stream map of the current learning and teaching process in the clinic; it highlights the flow of information between process participants at each stage of the clinic process fig. 3: current vsm this value stream map illustrates that the current process comprises a highly complex, multipartite and continuous exchange of information between academics and students. not only is the academic supervisor themselves directly involved at all stages of the clinic process, but so too is each and every student, albeit to a greater or lesser extent from time to time. most significantly, at each and every step in the process the supervisor strives to simultaneously fulfil a dual function, ensuring both that: (1) (in their capacity as a practitioner) the particular step is successfully completed for the benefit of the client; and (2) (in their capacity as an educator) the full pedagogical value of completing that step is delivered for the benefit of each student involved in that task. once this is scaled up to reflect a particular supervisor's responsibility for multiple clients and any significant numbers of students recognising also that individual cases each have their own unique features and timelines the challenge is clear: current clinic process design necessitates significant and inherent duplication of client work, accompanied by substantial bespoke student feedback. although many of these interactions are necessary and others do of themselves create value for students others may represent avoidable waste. ohno[footnoteref:41] famously identified seven different categories of waste. whilst these are difficult to translate into a professional services context, subsequent literature has also referred to ‘service wastes’ and ‘new wastes’, and these have included: “excessive information and communication”; “waste of knowledge”; “waste of time”; and “duplication”[footnoteref:42], and examples of these can be seen in the present context. [41: ohno, t. toyota production system: beyond large-scale production, (1988). cambridge, usa: productivity press. (original work published 1978).] [42: bicheno, j., & holweg, m. the lean toolbox: the essential guide to lean transformation (2009). (4th ed.) buckingham: picsie books., pp. 25-26] for example, the current process results in a very lengthy cycle time meaning that clients have to wait up to three months for advice; this in turn restricts both the quality and quantity of the legal work that the clinic can attract, impacting upon value for the students. similarly, the complexity of the working environment means that students necessarily spend a significant amount of time getting up to speed with these working processes, time that could arguably be spent on more pedagogically ‘valuable’ learning activities[footnoteref:43]. [43: nicholson, a. ‘research-informed teaching: a clinical approach’. (2017). the law teacher, 51(1), 40-55., pp. 50] iv.ii proposals and recommendations for law clinic process design towards a new value stream map as noted above, the prevailing challenge with the current clinic process appears to be the volume, variety and frequency of information exchange between clients, academics and students in relation to case work and student feedback. essentially, the same individuals are involved in the vast majority of the processes, and there is significant duplication; both academics and students work on almost every aspect of a client's case. this raises the question whether, by separating out the processes involved, it might be possible to enhance the value of those processes. figure 4 illustrates just one way in which this might be achieved. in this example, specific solicitors are tasked to take responsibility for managing the cases, and simply delegate discrete tasks for students to complete, with the support of a wider group of academics. this approach has the advantage of preserving the quality of student feedback (and thus pedagogical value) that can be provided through the clinic, whilst at the same time limiting substantially the range and scope of activities that any single member of staff or student is responsible for at any one time. fig. 4: future vsm whilst this map may itself represent a slight oversimplification (since academics may in reality look at student work more than once during different stages of its production) the vastly reduced complexity of the process is nevertheless very evident. the value stream mapping process makes it possible to evaluate at a glance the complexity, speed and value of the process and here each of those elements are vastly improved in the new approach. clients stand to benefit from faster turnaround times and student time would be spent exclusively on activities designed to maximise the educational value of their clinic experience. whilst there is undoubtedly some pedagogical value in students learning how to comply with office procedure, the new approach ensures that this does not become the focus of the experience, particularly given that office processes and procedures will vary significantly between legal practices. as noted above, under the current structure (see section 4) academics working within the clinic fulfil a dual function in that they each take responsibility for delivery of their cases for the benefit of their clients (in their capacity as practitioners) whilst simultaneously working to ensure that maximum pedagogical value is delivered at every stage for the benefit of their students. the key differences between the current and future vsms are: (1) a degree of separation between solicitors running the cases (who would take on only such cases as fall squarely within their own expertise) and academics supervising students; and (2) the creation of an ‘expertise bank’: a pool of academic and/or practitioner ‘experts’ that the academic supervisor can draw on for advice (and thereby expedite any research/professional updating that might be required in order to support students to complete a particular task), either in relation to the relevant law or in relation to more practice-based skills such as drafting. this division of labour not only reduces duplication, but it enables each participant in the process (solicitor, academic and student) to focus almost exclusively on the aspects of clinic process that are most useful/appropriate to their needs and expertise, thus potentially enhancing the overall value delivered through that process to client and student stakeholders, widening the group of academics who would be able to supervise students in the clinic, and raising satisfaction amongst all stakeholder groups. in that sense it is also conceivable that these changes might benefit staff wellbeing, beyond merely the effect of a reduction in workload. process design the value stream mapping process naturally raises more detailed questions about process design. at a macro level, the current learning and teaching process is low volume, high variety, high variation, and high visibility, and these factors make it a high-cost[footnoteref:44], ‘professional service’ process that can be difficult to evaluate and improve[footnoteref:45]. whilst it is unlikely that this process could ever be sufficiently broken down to be credibly categorised as a more efficient ‘service shop’ process (for example such as those employed in restaurants, banks and other similar consumer contexts), the value stream mapping exercise clearly indicates that it should be possible to remove some activities from the core process. there are some clear risks of dividing up takes in this way for example, it may create more monotonous tasks and reduce flexibility[footnoteref:46]. however, the present overloading and the need for expansion necessitate some action in this area, and these are risks that can be managed. [44: slack, n., brandon-jones, a., johnston, r., & betts, a. operations and process management (2015). (4th ed). harlow: pearson., pp. 24] [45: ibid, (2015), pp.124] [46: ibid, (2015)., pp.135] taking account of the value stream mapping process and the further process design considerations outlined here, figure 5 illustrates a possible learning and teaching process. this is presented in a swim lane diagram format, which has the advantage of showing how and when the different participants in the process engage with it. fig. 5: proposed process map as can be seen from this process map, each process participant has a well-defined and tightly controlled remit, which enables them to focus exclusively on their own value-adding activity: solicitors are responsible for running the cases, meeting deadlines, and protecting the best interests of the client (ultimately signing off and where necessary completing all client work); academic supervisors are tasked with developing students' knowledge, understanding and skills in relation to clinical tasks; academics from within the ‘expertise bank’ are on hand to provide efficient, subject-specific guidance to academic supervisors as required from time to time; and students are given discrete delegated tasks (together with appropriate context) and high quality feedback, which facilitate maximum learning gain. such a process would both resemble (in relation to the nature of and approach to delegation) and potentially improve upon (in relation to the quality of feedback) the learning and teaching process typically experienced by trainee solicitors in practice[footnoteref:47]. [47: nicholson, a. ‘research-informed teaching: a clinical approach’. (2017). the law teacher, 51(1), 40-55.] continuous improvement a strong feature of ‘lean’ is its association with the concept of ‘continuous improvement’ as bicheno and holwegput it “mistakes are seen as ‘opportunities to improve’, not as something that needs to be monitored and punished” [footnoteref:48]. for that reason if implemented this new process should not be the end of the matter. to truly achieve lean practice within a law clinic context, there must also be processes of performance measurement and management; such processes enable an organisation to regularly identify where it is, confirm where it wants to be, and then communicate that trajectory to stakeholders, driving progress in the right direction[footnoteref:49]. [48: bicheno, j., & holweg, m. the lean toolbox: the essential guide to lean transformation (2009). (4th ed.) buckingham: picsie books., pp.9] [49: neely, a. d. measuring business performance. (1998). london: profile books. ] particularly in a not-for-profit context such as a university, the most important measureable outcome has to be quality. before seeking to measure quality, it is essential to define what we mean different conceptions of ‘quality’ within the organisation will pull its employees in different directions. the definition and accurate measurement of quality within service sectors is difficult, not least because of the highly subjective and arguably unreliable nature of common metrics such as customer (or in the present case: client and/or student) satisfaction. gronroos (1988) acknowledges this challenge, and argues that it is the customers' definition of quality that counts; he proposes six criteria of good perceived service quality, four of which relate not to the technical aspects of the service being provided, but to the so-called ‘functional quality dimension’, i.e. the way in which an organisation's employees interact with customers whilst the service outcomes are being delivered[footnoteref:50]. further support for this idea can be found in the work of parasuraman, zeithaml and berry[footnoteref:51], who identified 10 “determinants of service quality”; only three of these (“competence”, “credibility” and “tangibles”) relate to traditional ‘technical’ aspects of quality, whilst the remainder are concerned with the way in which the customer experiences the core elements of the service. [50: gronroos, c. ‘service quality: the six criteria of good perceived service quality’. (1988). review of business, 9(3), 10-13.] [51: parasuraman, a., zeithaml, v.a., & berry, l.l. ‘a conceptual model of service quality and its implications for future research’. (1985). journal of marketing, 49(4), 41-50. ] these findings suggest that, whilst ‘technical’ aspects such as the reputation and knowledge of the academics teaching on a particular course are important, the broader ‘functional’ aspects of quality heavily impact student satisfaction levels and therefore arguably perceptions of quality[footnoteref:52]. a lean approach therefore suggests that the focus of continuous improvement should be the quality of the student experience, which very much includes the quality of the learning and teaching process itself. [52: see for example: smimou, k., & dahl, d. w. ‘on the relationship between students' perceptions of teaching quality, methods of assessment, and satisfaction’. (2012). journal of education for business, 87(1), 22-35. ; and xiao, j., & wilkins, s. ‘the effects of lecturer commitment on student perceptions of teaching quality and student satisfaction in chinese higher education’. (2015). journal of higher education policy and management, 37(1), 98-110.] in measuring and managing customer orientation and value, a fundamental choice is which metrics to use. kaplan and norton famously claimed that “[w]hat you measure is what you get”, and devised a ‘balanced scorecard’ which would enable businesses to measure performance from different perspectives[footnoteref:53]. within the commercial context for their work, the ‘balanced scorecard’ was designed to measure performance beyond merely the financial (e.g. customer satisfaction, wider strategic objectives etc.), but this concept has utility within he also. in an age of consumerism and significant emphasis on student satisfaction as a measure of teaching quality, there is a risk that courses are shaped solely to ensure satisfaction which risks undermining the true purposes of he[footnoteref:54]. a ‘balanced scorecard’ approach may help the clinic to ensure that it is achieving its strategic objectives and transforming students' lives; students may be ‘satisfied’ with their experience, but the real question is whether it has transformed their ability to lead fulfilling and prosperous lives that benefit both themselves and the wider societies that they inhabit. [53: kaplan. r. s., & norton, d. p. ‘the balanced scorecard measures that drive performance’. (1992). harvard business review, 70(1), 71-79.] [54: naidoo, r., shankar, a., & veer, e. ‘the consumerist turn in higher education: policy aspirations and outcomes’. (2011). journal of marketing management, 27(11-12), 1142-1162. .] since quality is about customer value, a balanced scorecard approach may enable the subject group to better measure and manage performance improvement by ensuring that the focus remains on maximising consumer value continuously in all processes, and eliminating processes/steps which do not deliver that consumer value. v conclusions to the extent that lean management is seen merely as the use of scientific methods in solving business problems, its benefits are incontrovertible. the application of lean management principles and methodologies to existing clinic processes has revealed potential opportunities to dramatically increase the subject group's clinical capacity whilst enhancing customer value. the proposed new learning and teaching process above eliminates and/or simplifies those activities that constitute ‘waste’, maximising the resources available for high value learning activities. the results may prove useful not only to other law clinic operators, but to the entire he sector more widely as they demonstrate the applicability and usefulness of lean thinking in that context. however, this definition and its focus on ‘methods’ is potentially misleading; it fails to warn readers that: where the tools of lean are utilised merely as ad hoc interventions to deal with specific issues they are effective only to a limited extent and can result in measures and metrics that are internally focused, rather than customer focused[footnoteref:55]. as seth and gupta[footnoteref:56] put it: “[t]here is a difference between doing lean and being lean”. indeed, of those organisations that currently utilise lean principles/techniques, only a very small minority manage to realise the true potential and results of a lean culture[footnoteref:57]. [55: radnor, z. j., bateman, n., esain, a., kumar, m., williams, s. j., & upton, d. m. public service operations management: a research handbook. (2016). new york: routledge., pp. 69] [56: seth, d., & gupta, v. ‘application of value stream mapping for lean operations and cycle time reduction: an indian case study’. (2005). production, planning & control, 16(1), 44-59., pp.57] [57: hogg, d. p. e. ‘lean in a changed world’. (2011). manufacturing engineering, 147(3), 102-113., pp. 104] accordingly, whilst the measures outlined above do have significant potential to improve the quality and efficiency of clinical teaching within the subject group, the greatest potential lies in measures that might support a much needed cultural shift towards a lean philosophy, whereby all academic members of staff share a common vision to see the lives of students transformed with minimal waste, and the maximum flow of valuable pedagogical experiences. implications the benefits of clinical legal education (‘cle’) are well documented[footnoteref:58], as are the merits of integrating such activity into the curriculum[footnoteref:59]; chemerinsky[footnoteref:60] even went so far as to argue that it was the most useful preparation that an aspiring solicitor could undertake. furthermore, the forthcoming regulatory changes to qualification requirements for solicitors in england and wales may expand these benefits even further, since various forms of cle offered by universities might potentially count towards the ‘qualifying work experience’ that will be needed[footnoteref:61]. [58: see brayne, h., duncan, n., & grimes, r. clinical legal education: active learning in your law school. (1998). london: blackstone press.; bloch, f. s. (ed.) the global clinical movement: education lawyers for social justice. (2011). oxford: oup.] [59: combe, m. m. ‘selling intra-curricular clinical legal education’. (2014). the law teacher, 48(3), 281-295.] [60: chemerinsky, e. ‘"why not clinical education?"’. (2009). clinical law review, vol. 16., pp. 35-41.] [61: dunn r., roper v., & kennedy, v. ‘clinical legal education as qualifying work experience for solicitors’. (2018). the law teacher, 52(4), 439-452. ] however, as this case study shows, there are potentially significant resourcing issues associated with this teaching methodology, and this position is endorsed by the literature. for example as compared with traditional academic modules the holistic and evolving nature of assessment in clinical modules has been shown to intensify workloads for the staff involved[footnoteref:62]. [62: bilgin, a. a., rowe, a. d., & clark, l. ‘academic workload implications of assessing student learning in work-integrated learning’. (2017). asia-pacific journal of cooperative education, 18(2), 167-183. ] the development of work planning processes that operate equitably across a wide range of very diverse activities is a long running challenge faced by he institutions[footnoteref:63], but research suggests that this is most likely to be achieved where such workload allocation processes are developed in consultation with the academic staff involved[footnoteref:64]. the present case study has highlighted some of the pressure points for academic workloads in university law clinics and using lean management methodologies has identified a proposed solution. to the extent that the proposed process delivers any efficiency improvement at all, it will represent an important step in supporting much needed sustainability of what is quickly becoming an essential component of any law programme. [63: see burgess, t. f., lewis, h. a., & mobbs, t. ‘academic workload planning revisited’. (2003). higher education, 46(2), 215-233. ] [64: kenny, j. d. j., & fluck, a. e. ‘the effectiveness of academic workload models in an institution: a staff perspective’. (2014). journal of higher education policy and management, 36(6), 585-602. ] limitations and opportunities for further research this paper summarised the initial stages of a long journey toward lean thinking within the subject group and as such is the first attempt in legal education. since this research comprises only a single case study, its generalisability may be limited to law clinics/law schools with similar structures and/or challenges, and further thought and/or investigation may be needed in order to apply its findings within other law schools. as a follow-up study, the authors intend to monitor the results of the process revisions articulated in this paper, and compare the aforementioned performance measurements after full implementation of the proposed process model. in addition, the authors would welcome further empirical research which strengthens the evidence for the utility of lean thinking within the law clinic and within legal practice more generally. academic hours marking/feedback firm meetings caseload monitoring attending client substantive re-drafts total academic hours 80 24 20 20 15 159 cumulative percentage marking/feedback firm meetings caseload monitoring attending client substantive re-drafts 0.50314465408805031 0.65408805031446537 0.77987421383647804 0.90566037735849059 1 50% marker marking/feedback firm meetings caseload monitoring attending client substantive re-drafts 0.5 0.5 0.5 0.5 0.5 0.5 171 project1 “10 lessons for new clinicians” angela macfarlane and paul mckeown1 as a new clinician, if you have trained as a lawyer via a traditional legal education route you inevitably have very little experience of clinical education to bring to the role, although you of course have your professional and practical experience to draw on. although many readers are experienced clinicians, this is a timely opportunity to go back to the beginning and re-assess the potential problems or risk areas that clinicians face at the beginning of a new academic year, with a new intake of students. society changes continually so each year will bring new issues as well as those well known to all clinicians. in clinic at northumbria university final year students are placed in to groups of up to six students known as firms and each firm is allocated an area of law such as employment or housing. each firm is supervised by a qualified solicitor who allocates cases to the students. students can work individually or in pairs, depending on the complexity of the case. at the end of the academic year, students are assessed on their practical performance using grade descriptors. they also submit reflective pieces about their experiences in clinic. these “lessons” have emerged from our own first year of transition from practising lawyer to clinical educator. we hope some of them ring true with other new clinicians. 1. do not pre-judge the students clinic is about the student experience and therefore it should be the student who conducts a case, not the clinician. this causes concern for the new clinician as they will be ultimately responsible for the case. it would therefore be an easy option for the new clinician to vet the students to ensure the more academically gifted students work on the complex and more demanding cases. however, can this be justified; could or should a clinician pick and choose the cases each student receives? the simple answer to this question is no. it cannot be justified as every student must have an equal opportunity to perform. what would be worse than being approached by a student after they have received their results and being told, “you didn’t give me the chance!” furthermore, if you vet the students and do not allow them an opportunity to perform, they may perform below expectation. expectancy-value theory says that if anyone is to engage in an activity, they need to both value the outcome and to expect success in achieving it.2 this theory supports “10 lessons for new clinicians” 65 1 angela macfarlane is a senior lecturer in law at northumbria university. paul mckeown is a lecturer in law at northumbria university. both authors are clinicians in northumbria university student law office. 2 feather (1982) as per biggs j, (2003), teaching for quality learning at university, 2nd ed, maidenhead, srhe & open university press, p.58. the proposition that we should challenge our students and expect success. if we do not, then the student will be less motivated to perform, and consequently the outcome will be below expectation. 2. patience! it can be frustrating how slowly the students progress in clinic which may be due to presuppositions about the students’ motivation. if you subscribe to mcgregor’s (1960) theory y about human trustworthiness which according to biggs3 is “…students do their best work when given freedom and space to use their own judgement … allowing students freedom to make their own decisions…” you might expect quicker progress. however, whilst this is congruent with deeper levels of learning, the students may not yet have the confidence or learning experience to deal with the freedom. furthermore, expectations of a lawyer from private practice could be unrealistically high as the students’ exposure to files is limited, whereas a trainee lawyer would have full time exposure to files. this freedom inevitably increases confidence and enhances progress, which is of course why clinical education is so valuable. as progress is generally slower in clinic to begin with, patience together with the clinician being able to guide the student to deep engagement by subscribing to mcgregor’s theory y is required because “theory y climate does not necessarily mean a disorganised teaching/learning environment. an organised setting, with clear goals and feedback on progress, is important for motivating students, and to the development of deep approaches.4 knowing where you are going, and feedback telling you how well you are progressing, heightens expectations of success. driving in a thick fog is highly unpleasant and so is learning in one.”5 getting to where you are going takes time, even without the predicament of thick fog which is why a clinician needs to have patience. 3. “the transition from student to professional does not always run smoothly” the purpose of clinic is to enhance students’ motivation from being just to attain a reward, such as a good grade (assessment motivated) or achievement motivated which biggs describes as when “students (may) learn in order to enhance their egos by competing against other students and beating them”6 to intrinsic motivation where “there are no outside trappings necessary to make students feel good. they learn because they are interested in the task or activity itself.”7 achieving this will lead to deeper learning, as opposed to surface learning. however, there could be problems when a student is not intrinsically motivated, who does not have commitment to their clients or respect for the rules and policies in clinic, essentially a student who does not have the ability to make appropriate judgements. if it was private practice, there is the option to dismiss the trainee, which is a strong motivation for compliance. in clinic at what point do you consider suspension or 66 journal of clinical legal education december 2008 3 biggs.j. (2003) teaching for quality learning at university, 2nd ed. maidenhead, srhe & open university press, p.64. 4 hattie and watkins 1988; entwistle et al. 1989, as per biggs.j. (2003) teaching for quality learning at university, 2nd ed. maidenhead, srhe & open university press, p.67. 5 biggs.j. (2003) teaching for quality learning at university, 2nd ed. maidenhead, srhe & open university press., p.67. 6 ibid., p.62. 7 ibid., p.62. expulsion, or can you consider these at all? this is extremely tricky as you have to balance the needs of the student, the needs of the clients, the professional conduct rules, the clinician’s practising certificate and of course the reputation of the clinic. if you do not take direct action these competing needs could all come crashing down like a pack of cards. in clinic at northumbria university in the academic year 2007–2008 direct action was taken as 2 students were suspended for a period of time for serious breaches of policy and procedure. once the students returned to clinic it was necessary to engage teaching practices more attuned to mcgregor’s (1960) theory x which biggs describes as “operating to produce low trust, low risk, but low value;”8 as compared to theory y mentioned above “ which produces high trust, high risk and high value – if it works”.9 when these students do go into private practice they must adhere to a professional code of conduct. whilst it was a harsh lesson to learn so early in their time in clinic, it had to be so even though it tipped the balance towards a more restrictive theory x learning environment. this was necessary due to the serious consequences of professional misconduct and to maintain clinic’s professional reputation. do not forget that not all students are the same or have the ability to make judgments and validly evaluate situations so sadly the transition from student to professional may not always run smoothly. 4. whose file is it anyway? as a practitioner, you are responsible for your own files and unfortunately old habits die hard! ultimately, if a student makes a mistake on the file, then you are responsible as if it were your own mistake. consequently, this may have the effect of the clinician running the case with assistance from the student. to answer the question whose file it is, we must first understand the concept of what clinic actually is. this is summed up by stephen wizner when he states: “on the most basic level, the law school clinic is a teaching office where students can engage in faculty-supervised law practice in a setting where they are called upon to achieve excellence in practice and to reflect upon the nature of that practice and its relationship to the law as taught in the class room and studied in the library. it is a method of teaching law students to represent clients effectively in the legal system, and at the same time to develop a critical view of that system. law students in the clinic learn that legal doctrine, rules and procedure; legal theory; the planning and execution of legal representation of clients; ethical considerations; and social, economic and political implications of legal advocacy, are all fundamentally interrelated.”10 it is essential that the file therefore belongs to the student as it is a teaching tool. to understand the legal system which we teach, the student must do the work, not observe it being done. as such, the file belongs to the student, and we as clinicians will assist! “10 lessons for new clinicians” 67 8 ibid., p.65. 9 ibid., p.65. 10 stephen wizner “the law school clinic: legal education in the interests of justice” 70 fordham l. rev. (2001–2002). 5. answer a question with a question if we are therefore assisting the students with the files, how do we respond to a question; should the clinician answer that question? the clinical experience is about teaching the students to be a professional. if we always give the students the answer, then they have not learnt and will not learn. with acknowledgement to an experienced clinician, professor jay pottenger,11 he advised that you should answer a question with a question. the purpose of questioning the student is to guide and assist them in finding the right answer for themselves. if a student continues to struggle, then still don’t give them the answer, sit down with them and look for the answer. if we are teaching students to be lawyers, we must therefore teach them the skills they will need in practice, not just the law. once we have taught them the skills to find the answer themselves, they can apply those skills to future problems. it becomes noticeable that students will become less reliant on the clinician over the course of time. perkins (1991)12 characterises the difference between the study skills of ‘going beyond the information given’ (big) and ‘without the information given’ (wig). conventional teaching, or big teaching, usually involves direct instruction to the students followed by thought orientated activities that challenge students so that they come to apply, generalise and refine their understanding. in clinic however, we adopt the wig approach to learning. our students are encouraged to find their own solution to a problem through questioning and support. in the early years of their education, big teaching forms the foundation of knowledge of the subject and the skills. the students can then reconceptualise that knowledge and address the problems which arise in clinic (wig). in other words, our students have already been taught the skills that they need to utilise and the legal principles which apply. they now have to apply those skills to the problem which has been presented. 6. start at the end and work backwards in private practice, in contentious matters particularly, everything that you do on the file you have in mind how it will impact on a final hearing so you always think about the end right from the beginning. it should also be the same as a clinician because the students are there to gain skills and a qualification so for them to perform effectively you have to make them aware of what is expected of them. be familiar with the learning outcomes and grade descriptors or other tools that you use to assess your students and make it clear to the students what is expected of them. then remind them again and again! as for the practical work, sometimes experience is the only answer, which is why clinic is so valuable and effective as a teaching tool. it is difficult to front load the students at the beginning of the year, which is why clinicians in northumbria university are experienced practitioners. however, when you think about the end, share your experiences with the students and consider making a visit to the final court or tribunal mandatory for the students because as a learning tool it is hugely effective and making it compulsory is a good balance of mcgregor’s theory x and y. 68 journal of clinical legal education december 2008 11 during visit to northumbria university may 2008. 12 as per biggs, j op.cit. p.95. 7. encourage expression of views a criticism of traditional academic teaching is that students are taught how to think …well almost! clinic gives students much more freedom to think and encourages discussion of their own social views, this of course helps with reflection, see lesson 8 below. if freedom of expression in a learning environment is promoted, students learn to differentiate their role as a legal advisor and their role in society with their own morals and views which leads to deeper learning. clinicians will often agree with jarvis13 who supports levinas’ (1991) argument that learning is achieved through conversation. students teaching each other is applicable to clinic because it points to the: “allembracing social and cultural system which we take for granted; …significance of the other (students) as persons (faces); importance of the interaction; mode of the interaction; intentions of the participants…” for example within an employment law clinic meeting, it is also great fun to listen to the students healthily debating issues such as whether the law was biased too much in favour of the employer or alternatively towards the employee. one northumbria student was confident enough to express her own well thought out view that employees who are dismissed should spend more time and energy finding a new job rather than pursuing their claim, even though she knew that other members of the firm would be horrified at such views. however, all these students recognised that they had put aside their own views and acted professionally when dealing with their clients. so in summary the lesson here is that students do come from different backgrounds, are individuals and are all part of society where any view they hold can be expressed and can enhance their learning. you should ensure that it does not necessarily dictate their actions with clients or other professionals and that they appreciate there may well be differences between their own views and their obligations as professional legal advisors. 8. do not expect the students to understand reflection! reflection is an effective learning tool as it allows the students to identify any problems and identify how they can improve. as biggs14 says “reflection… is rather like the mirror in snow white: it tells you what you might be. this mirror uses theory to enable the transformation from the unsatisfactory what-is to the more effective what-might-be.” however, students really struggle with reflection, one student asked, just a few weeks before hand in date, whether you “are allowed to put down what you think.” but this lesson is a bit of a misnomer as in fact, despite their regularly voiced concerns of not understanding reflection, most students were able to demonstrate deep learning in their reflection papers, showing maturity and insight. with persistent supervisor support students will also be able to take their reflective practice with them in their future careers so clinic is also instrumental in engaging the students in lifelong learning so that the students have the best opportunity possible to achieve their career goals. reflective practice is designed, amongst other things, to move away from assessment being just an end of course assessment but being incorporated into learning methods as it is done so successfully in clinic. “10 lessons for new clinicians” 69 13 jarvis p. (2006) the theory & practice of teaching 2nd edition , london and new york: routledge taylor & francis group pp.49–50. 14 biggs j, op.cit p.7. 9. do not be afraid of assessment the idea of assessment in clinical legal education is a debate within itself. northumbria university assesses its clinical students and therefore we have had to address the problems which it presents. clinical assessment is very difficult, particularly due to the inevitable subjectivity notwithstanding the assessment tools to be utilised. a clinician is likely to assess work over a period of time when a student may have performed very well but made one very big mistake. the work produced may be to a very high standard but the student needs to be chased for work. alternatively a student may not produce high quality work but try very hard and produce work in a timely fashion. there are so many variables to take into account such as what weight should we attach to the various elements that we are likely to look at in assessing students. the use of grade descriptors helped us to identify what makes a good student and what makes a poor student. the students were provided with the grade descriptors at the beginning of their clinical experience and therefore knew what was required of them. the use of grade descriptors assists in objectively justifying students’ performance rather than entirely relying upon the clinician’s view of the student. however, this does not resolve the problem of a differentiating between students who try but do not produce work of the quality that may be produced by students who needs to be chased. 10. enjoy our final lesson is to enjoy life as a clinician. whilst at times being a clinician can be a very demanding job, it also very rewarding. witnessing a student develop and grow in confidence is the reward for the hard work which has been invested. throughout a clinical career, there will be numerous issues that arise. however, there is also an international clinical community out there willing to share its thoughts and ideas through conferences and informal discussions. after all, many of the issues we face are universal. 70 journal of clinical legal education december 2008 reviewed article – teaching and learning in clinic reframing legal problems: educating future practitioners through an interdisciplinary student clinic elizabeth curran, school of legal practice, anu school of law, australia isobel ryder, caroline strevens, university of portsmouth[footnoteref:1] [1: elizabeth curran is the associate director of the anu international centre for the profession, education & regulation in law, isobel ryder is the adult nursing lead at the university of portsmouth and caroline strevens is the head of department at the university of portsmouth. ] abstract this article introduces a pilot clinic that has been designed and implemented at portsmouth law school in partnership with the school of health sciences. the benefits and challenges of interdisciplinary team working identified in the health science and legal education literature will be discussed. it looks at the rationale for this innovative development and speculates on the potential for a new professional curriculum that may emerge. the philosophy driving this pilot clinic is to contribute to breaking down silo thinking in professional students and build trust in the health and legal systems. this initiative will expose health professional and law students to holistic and therapeutic approaches to problem solving, teaching teamwork, collaboration and to breaking down the negative stereotypes of lawyers. the proposed pilot clinic at the university of portsmouth will provide new opportunities for students studying law and adult nursing to explore how interdisciplinary practice might build bonds of trust between professionals. it will also enable those involved to see potential networks, signposts and links, in order to improve client outcomes. this new development, taking lessons from educational practice in health sciences, provides professional and teaching staff operating the clinic to build a new collaborative and dynamic joint curriculum. this new form of clinic, it is argued, provides an alternative to traditional perceptions of clinical teaching across multidisciplinary paradigms. introduction the article will discuss why a pilot interdisciplinary student clinic (idsc) has emerged as a potentially powerful way of educating better and more responsive future practitioners in nursing, law and allied health disciplines. this, we argue, has rich opportunities for improving the professional education and mutual understanding of the participating students and future practitioners. the potential community impacts of the idsc will be discussed elsewhere. the authors see a critical need in universities to better prepare the emerging professionals through meaningful interdisciplinary collaboration. the pilot idsc at the university of portsmouth will provide new opportunities for students studying law and adult nursing to explore how interdisciplinary practice might enhance bonds of trust between professionals and uncover a new collaborative and dynamic joint curriculum. in the longer term, the clinic could expand to include students of social work, pharmacy and dentistry in a joint learning environment. we anticipate that the idsc environment will provide fertile ground for skill development in problem solving, relationship-building, communication and collaboration skills. research suggests that skills of good client interviewing, triage, peer to peer learning are skills that different professional disciplines can share even though their roles may differ.[footnoteref:2] there are likely to be many unforeseen learning opportunities which will emerge within the idsc, which our evaluation will capture, including the possibility of increased appreciation of each other’s roles, professional knowledge and ethical responsibilities. it is hoped that this may lead to the reduction of inter-professional conflict in the longer term. [2: harris mf, et al (2016) ‘inter-professional teamwork innovations for primary health care practices and practitioners: evidence from a comparison of reform in three countries’ 9 j multidiscip healthc, 35–46, https://www.ncbi.nlm.nih.gov/pmc/articles/pmc4743635/ accessed 12 september 2017; tobin tyler, e (2008), ‘allies not adversaries: teaching collaboration to the next generation of doctors and lawyers to address social inequality’, roger williams university school of law faculty papers. paper 17, 249. [online] http://lsr.nellco.org/cgi/viewcontent.cgi?article=1017&context=rwu_fp accessed 14 may 2017; author 1, foley t ‘integrating two measures of quality practice into clinical and practical legal education assessment: good client interviewing and effective community legal education’, international journal of clinical legal education, 21(1), 2014, pp. 69–92.] healthcare can tend to be defensive in nature, aiming to reduce patient claims for compensation for negligence. this article reports on an approach to education that is positive in nature and could influence students’ thinking about their future professional practice. author one’s studies have demonstrated that a significant barrier to team working exists between professionals of different disciplines. it has provided some evidence that this results from poor previous stereotypes of lawyers and the adversarial system and poor experiences of lawyers by non-legal professionals who will put their client risk of relapse first or resist referral because of such poor experiences.[footnoteref:3] the same phenomenon has also emerged in a united states studies by sandefur and cunningham.[footnoteref:4] the university of portsmouth idsc seeks to provide a way of breaking down such stereotypes earlier and in undergraduate study, thus bringing about interdisciplinary cooperation that might be taken on into professional life. [3: author 1 (2015) final evaluation report for the legal services board victoria 'why didn't you ask?' evaluation of the family violence project of the loddon campaspe community legal centre (april 16, 2015) 64-72. <http://ssrn.com/abstract=2631378; author 1, (2017) a research and evaluation report for the bendigo health–justice partnership: a partnership between loddon campaspe community legal centre and bendigo community health services (october 31, 2016). available at http://lcclc.org.au/wp-content/uploads/2017/11/abridged-hjp-final-research-report.pdf chapter 11, 145-151 and 173] [4: sandefur r (2014-15) ‘bridging the gap: rethinking outreach for greater access to justice, 37 ualr l. rev. 721 at 726; cunningham cd (1990-1991) ‘evaluating effective lawyerclient communication: an international project moving from research to reform’, 67 fordham l. rev, 1959, 1962.] this article’s structure will frame the discussion under the following headings: definition of terms; literature review; rationale; context; the development and evaluation of the idsc; and conclusions. definition of terms different and often problematic nomenclature and understandings across the different literature, professions and pedagogy exists. the authors thought it might be useful to summarise existing terminology and then provide their own definitions, in order to avoid misunderstandings and to frame the article’s discussion. clinical legal education clinical legal education is described as ‘a premier method of learning and teaching. its intensive, one-on-one or small group nature can allow students to apply legal theory and develop their lawyering skills to solve client legal problems. its teaching pedagogy is distinguished by a system of self-critique and supervisory feedback enabling law students to learn how to learn from their experiences’.[footnoteref:5] it is a form of experiential learning through engagement with the practice of law.[footnoteref:6] it aims to contextualise the study of law and draw on student learning in other courses to guide and support them in identifying, developing and applying ethical legal practice skills. but its scope is much wider than simply ‘skills’, it also aims to develop students’ critical understanding of approaches to legal practice, to their understanding of the roles of lawyers in relation to individual clients and social justice issues and to encourage and to validate student aspirations to promote access to justice and equality through the law.[footnoteref:7] [5: evans a, et al ‘best practices in clinical legal education’, australian government office for learning and teaching, september 2012, 4. (http://www.cald.asn.au/assets/lists/resources/best_practices_australian_clinical_legal_education_sept_2012.pdf) accessed 29/11/13.] [6: ‘clinical legal education guide, your guide to clinical legal education courses offered by australian universities in 2011 and 2013’, university of new south wales. (http://www.klc.unsw.edu.au/sites/klc.unsw.edu.au/files/doc/ebulletins/cle_guide_2011_12.pdf) accessed 2/12/13.] [7: author 1, foley t, (2014) ‘integrating two measures of quality practice into clinical and practical legal education assessment: good client interviewing and effective community legal education’, international journal of clinical legal education, 21(1), 69–92.] clinical legal education in the uk has grown rapidly over the last 20 years and now features as part of the curriculum in the majority of law schools.[footnoteref:8] the educational approach has been defined and discussed by many researchers. kerrigan’s definition, “learning through participation in real and realistic interactions coupled with reflection on this activity”, fits with the model being discussed in this paper.[footnoteref:9] [8: for a review commenting upon the implications of this growth see dignan, f., grimes, r., & parker, r. (2017). ‘pro bono and clinical work in law schools: summary and analysis’. asian journal of legal education, 4(1), 1-16.] [9: kevin kerrigan and victoria murray, ‘a student guide to clinical legal education and pro bono’ (basingstoke, palgrave macmillan, 2011 cited in combe, m.m., 2014. selling intra-curricular clinical legal education. the law teacher, 48(3), pp.281-295.] the phrase clinical legal education is well-known in law schools and is the subject of this journal. there are a number of clinic models and these have been documented[footnoteref:10] in a recent review of the changing provision in uk law schools by dignan et al. it describes a situation where law students provide free legal advice for members of the community, and this is how we use the term in this article. however, the term clinical would not be used in health literature even though clinical legal education is a standard term in law. ‘clinics’ in the health setting tend to be places where health services are delivered to members of the public which may, or may not, involve students working alongside the professionals. it also denotes a mode of practice informed research through ‘clinical trials.’ this has highlighted for the authors, the many differences even just in definition and application of language that exist in different professional discourse and the many opportunities for developing a rich new curriculum. [10: dignan et al ibid n 9] interdisciplinary student clinic the term interdisciplinary in this context, is borrowed from health, primary allied health and educational spheres and is not so common in legal language. nacarrow notes, ‘terms such as interdisciplinary, inter-professional, multi-professional, and multidisciplinary are often used interchangeably in the literature to refer to both different types of teams and different processes within them’[footnoteref:11] [11: nancarrow s a et al (2013). ‘ten principles of good interdisciplinary team work’ human resources for health , 11:19 page 3 of 11 http://www.human-resources-health.com/content/11/1/19 accessed 12 september 2017. for a discussion of interdisciplinary practice and education with a legal context see maharg p (2007) ‘transforming legal education: learning and teaching the law in the early twenty-first century’ taylor & francis ltd.] our definition, involves students in meaningful collaboration that promotes learning from different disciplines. in this case, it is applied within education and training pedagogies to describe studies that use methods and insights of several established disciplines or traditional fields of study. we propose to adopt the enhanced ‘team model’ posited by weinberg and harding[footnoteref:12]. lerner and talati describe an “experientially integrated team”[footnoteref:13] in which more than one discipline is represented in both the designers and delivers of the curriculum and in the students. our proposed idsc will have nursing and law staff working together to supervise students from these disciplines, as they provide information and support to members of the public. this novel learning environment provides an opportunity for reviewing and creating an innovative curriculum for law and nursing students so that students can learn from each other’s disciplines. these ideas will be explained and justified in the next section. [12: weinberg a and harding c, (2004) ‘interdisciplinary teaching and collaboration in higher education: a concept whose times has come’ 14 wash.u.jl& pol’y 15.19 cited in alan lerner and erin talati (2006) ‘teaching law and educating lawyers: closing the gap through md experiential learning’ vol 10 international journal of clinical legal education, at 110. ] [13: lerner a and talati e (2006) ‘teaching law and educating lawyers: closing the gap through md experiential learning’ vol 10 international journal of clinical legal education, at 110.] multi-disciplinary practice the term multi-disciplinary practice (mdp) is one used in legal circles for a professional practice model. it is a term used to describe commercial models of practice where lawyers work with accountants or financial advisers. it is defined by the solicitors regulation authority as “a multi-disciplinary practice (mdp) is a licensed body that combines the delivery of reserved legal activities with other legal and other professional services. ‘reserved legal activity’ and ‘legal activity’ have the meaning prescribed by s12 of the legal services act 2007(lsa).”[footnoteref:14] mdp intends to provide clients with a raft of professionals co-located for an efficient client service. the term is not the most suitable to describe the clinic model evaluated in this article because the aim of the idsc is not to adopt such a siloed approach. the pilot being delivered at portsmouth law school will consist of nursing and law students delivering services to clients as teams. there will be no system of referral by one professional discipline to another. for this reason, the term mdp has not been chosen. [14: see http://www.sra.org.uk/sra/policy/policies/multi-disciplinary-practices-sept-2014.page] inter-professional practice within health education, the terms multi-disciplinary, interdisciplinary and inter-professional have been used[footnoteref:15], and no consensus has been reached as to the most inclusive and appropriate term. in recent reviews of effectiveness of such education, the term “inter-professional education” has been adopted when students or registrants from different health professional groups learn or work collaboratively. [15: natalie l. murdoch, sheila epp & jeanette vinek. (2017) teaching and learning activities to educate nursing students for interprofessional collaboration: a scoping review. journal of interprofessional care. pages 744-753. received 11 jun 2016, accepted 14 jul 2017, published online: 18 sep 2017. erin abu-rish, sara kim, lapio choe, lara varpio, elisabeth malik, andrew a white. (2012) ‘current trends in interprofessional education of health sciences students: a literature review journal of interprofessional care’ pages 444-451 | received 16 dec 2011, accepted 21 jul 2012, published online: 27 aug 2012 download citation https://doi.org/10.3109/13561820.2012.715604 m. hammick, d. freeth, i. koppel, s. reeves & h. barr. (2009) ‘a best evidence systematic review of interprofessional education: beme guide no. 9.’ medical teacher. pages 735-751 | published online: 03 jul 2009 download citation https://doi.org/10.1080/01421590701682576 ] the term "interdisciplinary" has been chosen over and above inter-professional because it more accurately reflects the nature of the relationship that we seek to develop. the nature of professions can mean that they think and act in silos, which can disrupt effective teamwork. there is a danger that, using the term “inter-professional”, we might discourage the students from identifying themselves as equal partners in a new professional paradigm. by removing the link to the professions, our philosophy is to influence the way that students begin to think about the "others" that they work with. each discipline brings a unique perspective on the world and our pilot idsc will encourage students to reflect on these different perspectives, to the benefit of clients. literature review the health education literature, it is argued, has developed because of a need to reduce the risk of error[footnoteref:16] and is thus essentially negative in tone. the rationale behind this new joint curriculum development is more positive, founded on notions taken from therapeutic jurisprudence[footnoteref:17]. harris et al[footnoteref:18], note that the dynamic processes of teamwork and interdisciplinary practice (ip) have not been studied in-depth in the literature and their article explores this. harris et al conclude that ‘inter-professional team based care’ has been demonstrated to improve quality of care outcomes in patients with chronic disease in primary care. the article notes that, based on their study such interdisciplinary care, if done well, can improve client outcomes including health, the quality of care, lead to earlier interventions, reduce duplication and hard navigability through improved coordination and referral and planning. harris et al, also note that interdisciplinary practice can lead to improved relationships, changes in practice and increased job satisfaction and greater opportunity for collaboration. [16: lennen n and miller b. ‘introducing interprofessional education in nursing curricula. teaching and learning in nursing’. volume 12, issue 1, january 2017, pages 59-61 m. hammick, d. freeth, i. koppel, s. reeves & h. barr. (2009)’ a best evidence systematic review of interprofessional education: beme guide no. 9. medical teacher’. pages 735-751 | published online: 03 jul 2009. download citation https://doi.org/10.1080/01421590701682576] [17: therapeutic jurisprudence is defined by david wexler as the study of the role of the law as a therapeutic agent. see wexler, d. b. (1995). ‘reflections on the scope of therapeutic jurisprudence’. psychology, public policy, and law, 1(1), 220-236.] [18: harris mf et al (2016) ‘inter-professional teamwork innovations for primary health care practices and practitioners: evidence from a comparison of reform in three countries’ 9 j multidiscip healthc, 35–46, https://www.ncbi.nlm.nih.gov/pmc/articles/pmc4743635/ accessed 12 september 2017.] there is substantial evidence to demonstrate that examples of poor care are evident where multi-professional teams have failed to function in the person’s best interests (e.g. mid-staffordshire inquiry, winterbourne view). in their systematic review keifenheim et al [footnoteref:19] suggest that a variety of approaches to teaching systematic history taking to medical students are beneficial, including workshops, in simulation and working with simulated patients. a recent search of health literature demonstrated there is limited evidence of robust research evaluating which educational approach is best for non-medical health professionals. [19: keifenham k.e. (2015) et al, ‘teaching history taking to medical students: a systematic review’ 15:159 bmc medical education.] the reported benefits of inter professional activities include improved knowledge and skills for team working, which could then improve patient safety, although there are no robust, longitudinal studies that demonstrate this. there is less evidence of such learning and working positively influencing attitudes and perceptions towards others (hammick et al).[footnoteref:20] this suggests that it is vital to integrate meaningful learning activity, yielding positive results for patients/clients in such education, so that all participants can see positive benefits. [20: ibid note 15.] there are furthermore positive reasons to provide nursing and other health professionals with experiential educational contexts. some students lack the confidence and skills to manage inter-professional conflict in the work place[footnoteref:21] and increasing the opportunity to engage in co-learning and giving feedback, that the pilot idsc will provide, may assist in developing these skills. [21: friend m et al, (2016) ‘critical care interprofessional education: exploring conflict and power – lessons learnt’ 55:12 journal of nursing education 696-700.] the legal setting differs from health, in this regard, as there is substantial work in health settings exploring teams, team dynamics and interdisciplinary working. effective team work, according to ellis and bach[footnoteref:22] is regarded as a key pillar in providing a safe culture within which to provide healthcare. [22: ellisp., bach s. (2015) ‘leadership, management and team working in nursing’. 2nd edition. sage. los angeles.] the traditional view of clinical legal education in the united kingdom (uk) does not include any element of interdisciplinarity, although joint initiatives do exist in other jurisdictions[footnoteref:23]. a recent analysis by dignan et al of the 2014 survey of uk law school clinic and pro bono provision makes no mention of an interdisciplinary approach[footnoteref:24]. law clinics, it is suggested, are seen as vehicles to enhance the learning of law in law students and to address legal problems of clients.[footnoteref:25] there is little literature to be found on initiatives to develop an interdisciplinary approach to law clinics in the uk. there is, however, literature on interdisciplinary learning and its benefits in higher education that provides us with a framework for our evaluation of this pilot.[footnoteref:26] [23: see galowitz, p., 2012. ‘the opportunities and challenges of an interdisciplinary clinic’. -18 int'l j. clinical legal educ., 17, p.165. for a discussion of the aims of law clinics in a variety of jurisdictions see uyumaz, a. and erdoğan, k., 2015. ‘the theory of legal clinic in education of law. procedia-social and behavioral sciences’, 174, pp.2116-2122. ] [24: dignan, f., grimes, r., & parker, r. (2017). ‘pro bono and clinical work in law schools: summary and analysis’. asian journal of legal education, 4(1), 1-16.] [25: for a discussion as the which aim should take priority see elaine campbell & victoria murray, ‘mind the gap: clinic and the access to justice dilemma’, 2(3) international journal of legal and social studies 94 (2015). ] [26: elisabeth, j., spelt, h., harm, j., biemans, a., tobi, h., luning, p.a. and mulder, m., 2009. ‘teaching and learning in interdisciplinary higher education: a systematic review’. educational psychology review, 21(4), p.365.] we are aware of other types of idsc in the united states, uk and in australia. many of the ‘interdisciplinary’ or mdp student clinics under discussion in the literature and examined for this article, although often described as such, were not interdisciplinary in the sense of engaging students from different disciplines in joint learning. often, they were in essence law student clinics either conducting research or providing legal advice under supervision in health, allied health or community settings and so these are not discussed in detail in the context of this article. [footnoteref:27] much of the literature does not describe the idsc in the sense that the authors of this article envisage as interdisciplinary undergraduate learning and advice giving with student practitioners from different disciplines working collaboratively, in an attempt to address the wider determinants of health for individuals in society. in the interests of ensuring a relevant and not overly lengthy article these are not discussed. [27: olamola o and o bamgbose o (2013) ‘collaborating with other disciplines: best practice for legal clinics: a case study of the women’s law clinic, university of ibadan, nigeria’ 19 international journal of clinical legal education, 355; gunsalus ck, beckett js (2007-2008), ‘playing doctor, playing lawyer: interdisciplinary simultations, 14 clinical l. rev, 439-463; karin ml, runge rr (2010-2011) ‘towards integrated law clinics that train social change advocates,17 clinical l. review, 563; trubek l, farnham j (2000) ‘social justice collaboratives: multi-disciplinary practices for people’, 7 clinical law review, 227; enos p and kanter l (2002 -2003) ‘who’s listening? introducing students to client-centred, client empowering, and multidisciplinary problem solving in a clinical setting’, 9 clinical law review discusses their boston id clinic for dv which is law students learning about domestic violence, how to interview victims for research rather than practice although the authors note useful skills although are learned.] the idea of health justice partnerships is being explored in the literature.[footnoteref:28] in the united kingdom, hazel genn is leading an evaluation of the university college london advice clinic. the ucl ‘integrated legal advice and wellbeing service’ (ilaws) centre offers free general advice and assistance for registered patients of the liberty bridge road gp practice in social welfare law issues. based in the guttmann health and wellbeing centre in stratford, the clinic offers users of the liberty bridge road general practice free face-to-face general legal advice on all aspects of social welfare law including welfare benefits and housing. the ucl legal advice clinic also provides the basis for a wide-ranging research agenda seeking answers to fundamental questions about the nature of legal needs and the links between legal and health problems.[footnoteref:29] [28: for and american perspective see trubek, l.g., zabawa, b. and galowitz, p., 2015. t’ransformations in health law practice: the intersections of changes in health care and legal workplaces’. ind. health l. rev., 12, p.183. abd also krishnamurthy, b., hagins, s., lawton, e. and sandel, m., 2015. ‘what we know and need to know about medical-legal partnership’. scl rev., 67, p.377.] [29: see <https://www.ucl.ac.uk/laws/accesstojustice/legal-advice > accessed 30 august 2017] hyams and gertner run a idsc in melbourne at monash oakleigh legal service in australia with mixed results. they note that students often report feelings of being inadequately prepared for practice.[footnoteref:30] mdp is about systems change and moving away from adversarial settings. in australia, there is an emergence of more problem solving and therapeutic courts.[footnoteref:31] the authors note that this means a need to move from traditional law teaching to enable collaborations with other disciplines to work effectively in the new settings for justice.[footnoteref:32] hyams and gertner also note that lawyers were not seeing other client issues and were missing stuff. they note deficiency in law training to equip students for communication. the clinic revealed that the law students needed to adapt to different situations, but did not necessarily acknowledge the value of other disciplines as equal partners in this process. [30: hyams r and gertner f (2012) ‘multidisciplinary clinics – broadening the outlook or clinical learning’ 17-18 international journal of clinical legal education 23.] [31: vernon a, (2010) justice and care: the use of restorative conflict management principles and practices in mental health governance and tribunals (phd, la trobe university) (unpublished), <http://arrow.latrobe.edu.au:8080/vital/access/manager/repository/latrobe:34007;jsessionid=ee708c69ad04b193825aff81fb89b6a4; morgan a et al (2012) ‘evaluation of alternative resolution initiative in the care and protection jurisdiction of the nsw children’s court’, australian institute of criminology). ] [32: hyams r and gertner f (2012) ‘multidisciplinary clinics – broadening the outlook or clinical learning’ 17-18 international journal of clinical legal education 23, 25.] in the united states, lerner and talati, discuss their interdisciplinary advocacy setting, in a law clinic for children involved with child welfare setting. their article discusses why students should be involved in interdisciplinary clinics – beyond merely academic training is what is needed.[footnoteref:33] in their study, they note the law students observed an initial reticence of non-legal professionals to talk to lawyers when the students were seeking to train them. it took time for students to break down poor perceptions. we hope that we will break down any such perceptions quickly in our clinic as the students adapt to using each other’s language and ideas in their collaborative approach. [33: lerner a and talati e (2006) ‘teaching law and educating lawyers: closing the gap through md experiential learning’) ‘teaching law and educating lawyers: closing the gap through md experiential learning’ 10 international journal of clinical legal education, http://www.northumbriajournals.co.uk/index.php/ijcle/article/view/80 accessed 14 september 2017, at 115] lerner and talati explore the history of how law is taught and are critical of this as preventing collaboration. court case, statute based learning sees, law taught by teachers in the same way as their teachers taught, often by academics with little practice experience so devoid of reality and context. they argue that legal education is inadequate.[footnoteref:34] low rates of law academics themselves involved in collaboration with other disciplines results in university law schools working in silos, in contrast to other fields. similarly, enos and kanter discuss how traditional lawyering encourages hierarchy assuming the legal system knows all and alienates other professionals. they raise concern about paternalism and lawyers not allowing client involvement in decision-making meaning often wrong decisions.[footnoteref:35] at the university of portsmouth idsc, we will have students of nursing and law working together, under the supervision of academics who are also professionals in these fields". [34: lerner a and talati e (2006) ‘teaching law and educating lawyers: closing the gap through md experiential learning’, 10 international journal of clinical legal education, at 103, http://www.northumbriajournals.co.uk/index.php/ijcle/article/view/80 accessed 14 september 2017.] [35: enos p and kanter l (2002-2003) ‘who’s listening? introducing students to client-centred, client empowering, and md problem solving in a clinical setting’, 9 clinical law review, 94.] helpfully, the lerner and talati article discusses suggestions curriculum design, course structure and the benefits – learning different fields, facilitation of referrals. they observe that potential solutions increase when you have more than one mind set and different fields working on problems more creative and more client options emerge from this discourse, collaboration increases everyone’s knowledge of each other, the work and avenues to help. this they conclude gets away from stagnation of ideas rigid thinking and many voices are heard.[footnoteref:36] lerner and talati note how collaborative learning opportunities build respect and how lawyers tend to make assumptions which are often not correct as they are based on only narrow legal technical information and miss critical information in narrowing things too much that might otherwise help clients. emotional intelligence and engagement, team case planning and team work are taught in their model. they warn an important lesson is to make sure you consider who you partner with and have same values and are the right fit and also goes for client group to be served. the authors of this article, have considered this advice in the aims and design of the uop idsc as discussed later in this section and in the conclusion. [36: lerner a and talati e (2006) ‘teaching law and educating lawyers: closing the gap through md experiential learning’, 10 international journal of clinical legal education, http://www.northumbriajournals.co.uk/index.php/ijcle/article/view/80 accessed 14 september 2017110-112] tobin tyler, has written extensively on idsc and has much that is useful in both the impact of joint clinical education and learning opportunities for students and breaking down often high professional barriers earlier through cross training and fertilisation between different practitioners, students, supervisors and faculty.[footnoteref:37] tobin tyler describes the idsc based in hospital, how it is taught, curriculum and some of the issues for faculty and students and how overcome. she lists a number of joint learning outcomes and the process of joint group work and assessment. she explores how team work is important for skills in both health professionals and lawyers. [37: tyler-tobin e (2008) ‘allies not adversaries: teaching collaboration to the next generation of doctors and lawyers to address social inequality’ roger williams university school of law faculty papers paper 17.] st joan has broken down elements of how to run an idsc and the benefits to students. in her clinic, law students provide the services in non-legal settings and choices are made about side by side or hand in hand service provision with other professionals, depending on what may be appropriate and ethical.[footnoteref:38] usefully for the authors, st joan departs from her own law clinic and explains what an idsc could look like. her article includes a rationale for why idc, how it might be done, course content, planning, types of assistance. part two of the article flags mandatory reporting challenges and suggestions on ethical practice.[footnoteref:39] she notes such clinics would offer joint collaboration process for students and teachers,[footnoteref:40] broaden student experience.[footnoteref:41] she lists numerous benefits and suggestions.[footnoteref:42] [38: st joan j (2000-2001) ‘building bridges, building walls: collaboration between lawyers and social workers in a domestic violence clinic and issues of client confidentiality’ 7 clinical law review, 403, 417410.] [39: st joan j (2000-2001) ‘building bridges, building walls: collaboration between lawyers and social workers in a domestic violence clinic and issues of client confidentiality’ 7 clinical law review, 405.] [40: st joan j (2000-2001) ‘building bridges, building walls: collaboration between lawyers and social workers in a domestic violence clinic and issues of client confidentiality’ 7 clinical law review, 413.] [41: st joan j (2000-2001) ‘building bridges, building walls: collaboration between lawyers and social workers in a domestic violence clinic and issues of client confidentiality’ 7 clinical law review, 415.] [42: j st joan (2000-2001) ‘building bridges, building walls: collaboration between lawyers and social workers in a domestic violence clinic and issues of client confidentiality’ 7 clinical law review, 419, 420-425 and 443-444.] these other models, the reasons and rationales for their emergence and the benefits and challenges will inform the development of the new pilot idsc at the university of portsmouth. at this early stage our aim is for the clinic students to learn each other’s language, context, ethical codes and norms, and perspectives. in so doing, as envisaged by lerner and talati[footnoteref:43], they might learn together to cross role boundaries. law and nursing students will reframe client issues in terms that go beyond the scope of legal problems and using each other’s terminology. this may lead to trust and the reduction in the siloed nature of professional socialization in the future as these students become professionals. at present legal practitioners instruct experts to advise and our aim would be to teach collaboration such that in the future professionals would instead work as a team where professional boundaries allow. [43: lerner a and talati e (2006) ‘teaching law and educating lawyers: closing the gap through md experiential learning’, 10 international journal of clinical legal education, 96.] the rationale for interdisciplinary student clinic in nursing in the uk, the curriculum increasingly integrates a person-centred approach, which fosters empowerment, promotes self-management and the promotion of health. this is because of the increased pressure on healthcare, which has typically focused on managing the care of people who are already ill, disabled or dying. as such, nurses encounter people who may be frightened and defensive, by virtue of their ill health and skills in managing such relationships are included in the nursing curriculum. by enhancing skills in building therapeutic relationships and advocacy, and by acting to support people to make informed decisions about their health and lifestyle, nursing seeks to change the dynamics in the nurse-patient/family relationship. research skills are taught and undertaken by nursing students and they explore their role in participation in shaping health practice and policy[footnoteref:44]. [44: international council of nurses. http://www.icn.ch/who-we-are/icn-definition-of-nursing/ ] as noted by enos and kanter, learner and talanti[footnoteref:45] earlier, legal education at undergraduate level often encourages thinking in silos and categories through the teaching of law in discrete problem areas such as contracts, tort or criminal law overlooking the contexts of problems and that problems can intersect and cascade.[footnoteref:46] as practitioner teachers, we also know that causes of legal problems can be situated in a context of other non-legal problems and may never be resolved unless the causes and interconnections are identified and worked through.[footnoteref:47] many law courses teach law in isolation from contexts such as the social determinants of health and wellbeing. in fact, such contexts are rarely even acknowledged in the more traditional law courses and yet can be significant factors in comprehensive problem identification necessary before the client can be fully supported. [45: enos p and kanter l (2002-2003) ‘who’s listening? introducing students to client-centred, client empowering, and md problem solving in a clinical setting’, 9 clinical law review; learner a and talati e (2006) ‘teaching law and educating lawyers: closing the gap through md experiential learning’, 10 international journal of clinical legal education, 96.] [46: moorhead, r, robinson, m & matrix research and consultancy (2006) a trouble shared: legal problems clusters in solicitors’ and advice agencies, dca research series, no. 8/2006, department of constitutional affairs, london] [47: author 1 (2005) ‘making connections: the benefits of working holistically to resolve people’s legal problems,’ 12 e law murdoch university electronic journal of law; author 1 (2008) 'relieving some of the legal burdens on clients: legal aid services working alongside psychologists and other health and social service professionals’, 20 australian community psychologist, 47-56; author 1 (2013) the strategic approach to legal problem solving problems –: examples, processes & strategies, legal workshop, australian national university college of law, available at: http://www.plelearningexchange.ca/database/solving-problems-strategic-approach-examples-processes-strategies/ accessed 14 september 2017.] context in the health system in the united kingdom, one in ten hospital admissions are associated with error [footnoteref:48] and half of these errors are avoidable according to the national patient safety agency[footnoteref:49]. there are multiple examples where dysfunctional interdisciplinary team working has compromised people’s safety (such as cases like elaine bromily, daniel pelka) or where medication errors occur, through prescribing or administration errors[footnoteref:50]. vincent argues that there is a clear need and importance of learning from such errors and near misses in order to improve patient safety[footnoteref:51]. education, as to risk and possible earlier intervention to prevent poor health outcomes, may from a health point of view be enhanced with joint learning and legal education on risk and prevention through an idsc such as the one at the university of portsmouth. [48: hogan h et al (2012) ‘preventable deaths due to problems in care in english acute hospitals: a retrospective case record review study’. bmj qual saf, 21:737–745 doi 10.1136/bmjqs-2012-001159.] [49: national patient safety agency (npsa) 2007. safety in doses: medication safety incidents in the uk’. npsa.] [50: ibid] [51: vincent c (2011) ‘patient safety’. wiley-blackwell. 2nd edition] there is an evolving reconfiguration of the health and care system in the united kingdom, driven by the challenges of an ageing population, with increasing frailty and complexity and informed by recent reports, (darzi report 2008[footnoteref:52], marmot review 2010, five year forward view 2014[footnoteref:53], shape of caring 2015[footnoteref:54]). this context has led to the development by imison and bohmer [footnoteref:55] of ‘sustainability and transformation plans’ and recognition of the importance of increased emphasis on promotion of health, prevention of illness, self-management, the critical establishment of skills development in collaborative practice, and team based provision. it has also seen a move to increase the integration of health and care. as a consequence, the nursing and midwifery council (nmc) are currently reviewing the standards for nursing, so that graduates are better prepared to deal with the health needs of the ageing uk population. the draft standards issued by the nursing and midwifery council (nmc) in 2017[footnoteref:56] suggest that nurses will be expected to take a more active part in holistic and person-centred care, within increased skills in assessment, diagnostics and triage and this will inform future nursing curricula in the uk. [52: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/228836/7432.pdf] [53: https://www.england.nhs.uk/wp-content/uploads/2014/10/5yfv-web.pdf] [54: https://www.hee.nhs.uk/sites/default/files/documents/2348-shape-of-caring-review-final.pdf] [55: imisonc. & bohmer r.? (2015). ‘nhs health and social care workforce: meeting our needs now and in the future? ‘the kings fund. london. see https://www.kingsfund.org.uk/sites/default/files/field/field_publication_file/perspectives-nhs-social-care-workforce-jul13.pdf accessed 16/10/17] [56: nursing and midwifery council (nmc) (2017) draft standards of proficiency for registered nurses. https://www.nmc.org.uk/globalassets/sitedocuments/edcons/ec7-draft-standards-of-proficiency-for-registered-nurses.pdf] xyrichis et al, [footnoteref:57] note interdisciplinary healthcare teams face challenges including: the contentious nature of sharing professional roles and expertise, effective planning, problematic funding and accountabilities for different programs adding to complexity, decision making, and delivering quality patient/client care within complex contexts. although challenging, the authors see the opportunity for students to develop these skills through joint interdisciplinary learning as important, to better position and equip future practitioners for the changing world and the dilemmas they will face, as they offer care and advice services and support as practitioners in the wider community. [57: xyrichis a and lowton k (2007) ‘what fosters or prevents interprofessional teamworking in primary and community care? a literature review’ int j nurs stud 45 (1), 140-153. 2007 mar 26.] there is much empirical evidence to support a need for changes to legal education based on advice seeking behaviours of members of the public and the need to work towards solving a person’s problems that may have broader dimensions than just the legal problems.[footnoteref:58] law like other disciplines[footnoteref:59], face challenges with technology and impacts on human expertise. this data and change in the world seems not to have resonated within much of legal academia, odd given universities are research as well as teaching institutions and research, one would think also ought to inform teaching pedagogy and vice versa. [58: coumarelos c et al (2012)‘access to justice and legal needs legal australia-wide survey: legal need in australia’ (new south wales law and justice foundation, sydney) http://www.lawfoundation.net.au/ljf/site/templates/law_aus/$file/law_survey_australia.pdf accessed 1 may 2017; buck, a et al (2005) ‘social exclusion and civil law: experience of civil justice problems among vulnerable groups’, social policy & administration, vol. 39, no. 3, pp. 302–322; pleasence, p et al, (2007) ‘mounting problems: further evidence of the social, economic and health consequences of civil justice problems’, in p pleasence, a buck & nj balmer (eds), transforming lives: law and social process, stationery office, london, pp. 67–92; pascoe p et al, (2015) ‘reshaping legal assistance services: building on the evidence base’ (law and justice foundation of nsw, sydney) http://www.lawfoundation.net.au/ljf/app/&id=d76e53bb842cb7b1ca257d7b000d5173 (accessed 21 april 2017).] [59: tobin-tyler, e (2008) ‘allies not adversaries: teaching collaboration to the next generation of doctors and lawyers to address social inequality’ 11 journal of health care law and policy, 249-294.] susskind notes the changing role of lawyers, and the court process itself will all provide a range of ways in which the citizen can be empowered to manage their own legal problems and ‘embrace improvements not just to dispute resolution but also to…dispute containment, dispute avoidance and legal health promotion’. he also notes interdisciplinary study will be required with ‘exposure to and understanding of traditional legal service should provide a valuable foundation upon which to build any new career in law.’[footnoteref:60] cunningham has also explored the importance of a great exchange and interaction between lawyers and social scientists to form a shared approach to improving client communications, increasing self-awareness and communication skills.[footnoteref:61] [60: susskind r, (2013) tomorrow’s lawyers: an introduction to your future, oxford university press, 2013, 85, 119. see also maharg p (2007) transforming legal education: learning and teaching the law in the early twenty-first century, taylor & francis ltd, united kingdom.] [61: cunningham cd, (1990 -1991) ‘evaluating effective lawyerclient communication: an international project moving from research to reform’, 67 fordham l. rev. 1959, 1962.] in addition, in the process of writing the conference paper on which this article is based, the authors realised that notions of ‘client care’ are taught differently in the social and health sciences to law. nursing pedagogy sees client care as looking to the health and wellbeing of clients and patients and ensuring the patients feel safe, respected and are holistically supported to make evidence informed decisions about their care. in law, ‘client care’ is often taught in a context of ethics and often is limited to contexts of minimising risk (often to the lawyer), client confidentiality, and duties of loyalty and fiduciary duties. we realised we could all learn from each other in broadening concepts of client care in how the joint learning and idsc are operationalised at the uop. we agree with lerner and talati[footnoteref:62] that an understanding of the full social context is required if the legal professional is to support the rule of law and access to justice. [62: lerner a and talati e (2006) ‘teaching law and educating lawyers: closing the gap through md experiential learning’, 10 international journal of clinical legal education 107.] although changing, traditionally students of law have not encouraged to reflect on their practice. law is largely taught by case law and statutory interpretation and does not, in an integrated way across the whole curricula, teach reflective practice although it might be undertaken in clinical legal education and practical legal training it is rarely integrated throughout course content as it is in the health sciences. other than through clinical legal education supervision rarely are law students encouraged to partake in debriefing opportunities and structured supervision as in nursing, which focus on client care and approach, rather on the legal avenues for clients. the idsc aims to develop the students’ ability to engage in critical understanding of the role, ethics and operation of the law in its political, economic and social contexts and most importantly, to enable them to explore how different disciplines can work collaboratively to improve social and health outcomes. development and evaluation of the university of portsmouth idsc the law student generalist advice clinic project at portsmouth law school is well established in the local community setting operating from johns pounds and somerstown community hub. we are developing the project further for the idsc as an interdisciplinary health justice partnership student clinic within a suitable health setting. authors two and three have planned three stages. the first stage currently has law students, dental health and nursing students in a community setting (john pounds centre, portsea). this gives the potential for early and effective health and welfare advice, such as debt and access to benefits, general health promotion, to improve health and wellbeing of the clinic’s clients thereby reducing anxiety and stress, which lead to poor health outcomes. authors two and three are seeking other community settings particularly a health setting as an additional location. at this first stage students will work in community settings to provide educational presentations and workshops but not tailored individualised advice. the second stage envisages law and health professional students giving legal and public health advice to individuals under close supervision and in accordance with professional standards. the final stage is the establishment of a health justice clinic staffed by a mixture of professionals, and students on the model of a teaching hospital but on a much smaller scale. the plan is to recruit final year law students from september 2018. law and nursing students will present information to the public about common legal issues on crucial topics already identified by nursing staff and including powers of attorney, accommodation rights, and access to benefits in the elderly, in settings external to the university. we hope that by working with local nhs trusts, we will be able to locate suitable venues in additional to our plans to visit community centres, care homes, schools and colleges. students will be supervised by professionally qualified, legal and health academics during all contact with the public. there is insurance cover as this forms part of the hosting university's insurance cover. the clinic will form part of the curriculum and will be assessed for academic credit. it will be an extension of university of portsmouth’s current law clinics and the university of portsmouth will cover the costs involved of the curriculum activity. the key challenges posed by collaborating with law students in uk higher education include the different philosophies within the two fields. in nursing, students are encouraged to see the person, not the disease and for these students the approach is broadly vocational, as well as academic. a further practical issue relates to timetabling conjoint activity, within already busy subject areas. the authors seek to enhance the law student ability to conduct systematic case histories that incorporate a wider view (not just legal). education about risk management, is interpreted as client care and yet legal expectations may assist nurses in managing some of the health risks outlined above earlier. by embedding interdisciplinary learning, we anticipate being able to use deliberate approaches to break down the hierarchical way in which law is taught (as the literature discussed earlier highlights) using judicial pronouncements, winners and losers, rather than being about people with problems. it is this use of language, we suspect may be a reason why there is community and professional reticence to engage with the legal profession. it is hoped that the participants in the idsc will develop new language and start to break down these silos and such reticence by skills in interpersonal collaboration and communication. the evaluation of the pilot study there will be an ongoing evaluation as the authors are keen to enable good practice, share lessons learned and inform replicable models in other university settings. the evaluation will inform as to the project impacts on students and learning modes, academic staff, partner agencies and clients once the clinic reaches its final stage of operation. we seek to measure the development of collaboration between disciplines, the use of each other’s terminology and problem-solving approaches, mutual understanding and respect for differing professional rules, and the building of trusting relationships. at this early stage the ethical approval is limited to asking open questions in individual interview and focus groups. conclusion this article has explored the rationale for the development of the idsc at university of portsmouth and discusses possible outcomes. this pilot aims to support students of law and nursing to challenge their evolving "professional" sphere of reference. the pilot provides an opportunity for them to explore the development of team working and trust. both nursing and law are service professionals and clients and patients are potentially the same person. we anticipate that law students can learn new approaches from nursing. we take instructions. nurses take histories that are much more comprehensive. nurses learn to give bad news. lawyers may well experience giving bad news and learn an effective way to do so. nurses are taught how to respond to error but do not understand the distinctions between civil and criminal responsibility or shared or vicarious liability. these are areas that the design of the clinic delivery has planned to address. furthermore, we realise that there is a much more exciting jointly developed truly interdisciplinary curriculum that this clinics will uncover as it operates. the team at portsmouth has secured ethical approval to collect data through focus groups of staff and students to ensure the unplanned outcomes are captured. in exploring the development of joint interdisciplinary learning and an idsc at university of portsmouth , the authors discovered differences in philosophy, design and delivery of nursing and legal education. some of these differences were surprising to the law teacher authors, in highlighting some of the deficiencies in legal education. reflective practice for example, although a key part of clinical legal education[footnoteref:63] is less integrated than in nursing where it informs almost all core subjects and student learning. similarly, even though, as in nursing, in law a critical part of effective practice is a good client interview[footnoteref:64], little time in law is given to systematic assessment, history taking and triage to ensure full and comprehensive advice and problem identification, whereas in healthcare, this forms an essential component of holistic and person-centred healthcare [footnoteref:65]. students of law are lucky if they receive any interview training and it often occurs only if they undertake a clinical legal education program or practical legal training course often just before they commence practice, if at all. [63: leering m (2014) ‘conceptualizing reflective practice for legal professionals’ 23 journal of law and social policy, 83-106.] [64: author 1 and foley t, ‘integrating two measures of quality practice into clinical and practical legal education assessment: good client interviewing and effective community legal education’ (2014) 21:1 international journal of clinical legal education 69. ] [65: walsh m and crumbie a (eds) (2007) ‘watson's clinical nursing and related sciences,’ balliere tindall. edinburgh.] the idsc is emerging as an important way of building better and more responsive future practitioners in health, law and allied health disciplines. interdisciplinary practice is not new in health and allied health and social work spheres. what is different here is the idea having a law students as part of such a team including students of nursing. later, we expect that dentistry, pharmacy and social work students will join the clinic. this subject of an interdisciplinary student clinic, which is not merely lawyer led, but involves students and cross faculty members and different fields of supervision is a subject on which, there is little literature. as noted by hyams and gertner, there is probability that law students needed to acknowledge the value of other disciplines as equal partners in the interdisciplinary clinic process and indeed in their legal education more generally. arguably, this is a weakness in the nature of professional education we tend to teach professional students to think about problems from a single perspective. the idsc aims to get them to think in a collaborative way, evaluating how a more joined up approach might address the root cause of problems. spelt uses the term boundary-crossing in her systematic review of interdisciplinarity in higher education.[footnoteref:66] she offers the following definition citing boix mansilla et al[footnoteref:67] [66: spelt, e.j., biemans, h.j., tobi, h., luning, p.a. and mulder, m., 2009. ‘teaching and learning in interdisciplinary higher education: a systematic review.’ educational psychology review, 21(4), p.365.] [67: boix mansilla, v., miller, w.c. and gardner, h., 2000. ‘on disciplinary lenses and interdisciplinary work’ in s. wineburg & p. grossman (eds.), interdisciplinary curriculum: challenges of implementation. new york: teachers college press. p 219] “the capacity to integrate knowledge and modes of thinking in two or more disciplines or established areas of expertise to produce a cognitive advancement—such as explaining a phenomenon, solving a problem, or creating a product—in ways that would have been impossible or unlikely through single disciplinary means.” this neatly encapsulates our ambitions for this pilot interdisciplinary student clinic. 4 practice report 62 the ‘flipped’ classroom – a method for improving teaching and learning even in large classes michal urban, charles university in prague, faculty of law. 1 abstract the covid-19 pandemic has forced many of us to transform our approach to teaching and learning. instead of standing in front of a class in the lecture hall or sitting around a table and interactively debating with students, we, as teachers, have found ourselves staring at students (or just their names) through such platforms as zoom or teams and overcoming the instances of hesitance or silence by, well, talking more. sooner or later some, perhaps many, of us recognised this “trap of silence” and in searching for better approaches to online teaching began to use – intentionally or not – the flipped classroom method. in this text, i will share my experience from the spring semester of 2021, in which i used the flipped classroom method in a large group setting (over 150 enrolled students). in the first part of this text, i will describe the course and implementation of the method. then i will summarize its advantages and disadvantages and identify questions for further consideration. throughout the paper, i include the experience of other teachers from the field of law and other disciplines to provide more context for my experience with the flipped classroom. 1. what is a flipped classroom? the basic idea of the flipped classroom2 is a shift (well, a flip) in the educational approach. in a typical class – be it online or offline – the teacher starts by introducing 1 judr. mgr. michal urban, ph.d. (urban@prf.cuni.cz) is a senior lecturer at charles university in prague, faculty of law, czech republic, and head of its centre for legal skills and street law programme. the author has already published his experience with the flipped classroom, with much less inclusion of the international literature cited in this text, in a czech article (see michal urban, 'metoda převrácené třídy (flipped classroom) ve výuce práva' (2021) jurisprudence, 6. 2 see william r. slomanson, 'blended learning: a flipped classroom experiment' (2014) j. legal educ. 64(1), 93; lutz-christian wolff, and jenny chan. flipped classrooms for legal education. (singapore: practice report 63 the topic typically either through a lecture, or by providing the content in another way (for example by guided reading, playing a video, or having students share their experience). then, possibly, comes the practice – by getting students to apply what has been covered by the teacher to cases and problems, or through completing exercises or debating content with their peers or the teacher. this practical aspect of learning, and in some cases almost all of it, happens after the class, often in the form of homework. despite our familiarity with this pattern and despite the alleged logic behind this approach, there are two main problems with it. first, contemporary educational theory suggests that there are better and more efficient ways to deliver the content other than by lecturing (which by the way most teachers, including those teaching clinical legal courses, tend to use more than necessary). in fact, some authors and studies point out that there are hardly any worse methods of teaching than lecturing and that we still keep lectures as a backbone of springer, 2016); jacob bishop and matthew a. verleger, the flipped classroom: a survey of the research. (2013) 120th asee annual conference and exposition, june 23-26; jalal nouri. 'the flipped classroom: for active, effective and increased learning–especially for low achievers' (2016) international journal of educational technology in higher education. 13 doi: 10.1186/s41239-016-0032-z; amy roehl, shweta linga reddy, and gayla jett shannon, 'the flipped classroom: an opportunity to engage millennial students through active learning strategies' (2013) journal of family & consumer sciences. 105(2), 44; zamzami zainuddin and siti hajar halili, 'flipped classroom research and trends from different fields of study' (2016) the international review of research in open and distributed learning, 17(3). https://doi.org/10.19173/irrodl.v17i3.2274; marcela castro and sandra aguirre, 'flipped classroom in legal education: achievements and challenges of innovating the teaching of a basic law course' (2020) international journal of learning and teaching, 6(2) doi: 10.18178/ijlt.6.2.119-124; karim hajhashemi, nerina caltabiano and neil anderson, 'integrating digital technologies in the classroom: lecturers’ views on the flipped classroom approach' (2016) australian and international journal of rural education, 26(3), 17; jacqueline e. mclaughlin, et al., 'pharmacy student engagement, performance, and perception in a flipped satellite classroom' (2013) american journal of pharmaceutical education. doi: 10.5688/ajpe779196; mary beth gilboy, scott heinerichs, and gina pazzaglia, 'enhancing student engagement using the flipped classroom' (2015) journal of nutrition education and behavior, 47(1), 109; brenda alvarez, 'flipping the classroom: homework in class, lessons at home' (2012) the education digest, 77(8), 18; khe foon hew and chung kwan lo, 'flipped classroom improves student learning in health professions education: a meta-analysis' (2018) bmc medical education, 18(38), https://doi.org/10.1186/s12909-018-1144-z; educause. 7 things you should know about flipped classrooms [online]. (2012) <https://library.educause.edu/resources/2012/2/7-things-you-should-knowabout-flipped-classrooms>. practice report 64 many curricula mainly because of two simple reasons: tradition and money.3 lectures are deeply rooted in our educational past and they are a relatively cheap form of delivery. secondly, the time students need us, the teachers, the most is when they apply principles in a practical context. only then will they start truly asking questions about the content (do i understand it correctly? have i solved the problem? is my way of reading the material the most effective? etc.), and only then will they be truly challenged. but ironically, this part of the class typically happens, at least partially, at home, when students have no direct contact with the teacher and typically also not with their fellow students. as binford observes, not even the traditionally used socratic method is able to satisfyingly fix it.4 although it brought an important shift in law teaching after the dean of harvard law school langdell firstly introduced it in 1870s and continues to have its benefits, as described e.g. by the carnegie report,5 it clearly has its flaws and critics and needs to be used wisely and not as a universal teaching strategy.6 the flipped classroom design addresses these issues by shifting the phases of the lesson. the content is provided before the class in a form of a video, podcast, or 3 see warren binford, ‘how to be the world's best law professor’ (2015) journal of legal education. 64, 542 or graham gibbs, 'lectures don’t work, but we keep using them' (2013) times higher education https://www.timeshighereducation.com/news/lectures-dont-work-but-we-keep-usingthem/2009141.article. professor binford formulates it rather clearly: “over 700 studies have confirmed what many of us know based on our own experience as students: lectures are among the least effective methods for achieving almost every educational goal ever identified. in fact, for some education goals, lectures have been identified as the least effective learning method. others suggest that they may be worse than no teaching at all since attending a lecture leads to less studying afterward.“ 4 warren binford, ‘how to be the world's best law professor’ (2015) journal of legal education. 64, 542. 5 william m. sullivan et al. educating lawyers: preparation for the profession of law. (john wiley & sons, 2007). 6 warren binford, ‘how to be the world's best law professor’ (2015) journal of legal education. 64, 542; benjamin v. madison, 'the elephant in law school classrooms: overuse of the socratic method as an obstacle to teaching modern law students' (2007) university of detroit mercy law review, 85, 293. binford summarizes the drawbacks of the socrative method as follows: “criticisms include the use of the method in abusive and insensitive ways and the fact that the approach is ‘too narrow‘ and trains students‚ more for conflict than the gentler arts of reconciliation and accommodation.” practice report 65 reading and the time spent in the class is used for practical activities: debate about the content, addressing case studies, formulating follow-up questions, introducing more content, exploring context, or generally challenging students in whatever way teachers find appropriate. the idea that a teacher standing in front of tens or indeed hundreds of students may be replaced by videos available on e-learning platforms might certainly feel as a loss, a departure from romantic old-fashioned education portrayed numerous times in films and other pieces of popular culture. yet it would be wrong to dwell on this image solely because we were used to organize learning and teaching in this way. the pandemic forced us to learn to do things differently and we should be careful what the new normal of higher education would look like. once lectures are recorded and the synchronous meetings used for debates with students, covering additional topics and applying the content to real cases, we might well be on the way to a more meaningful and effective educational model. it should not bother us that the current impulse for this change was not an international conference or release of a ground changing study, but a virus. 2. my personal experience with a flipped classroom during the spring semester of 2021, a colleague of mine and i decided to flip our sociology of law course. we had little experience with this method and we knew that to bring whatever change into a course for over 150 students logically tends to be more difficult than in smaller courses. due to the pandemic, we needed to stay entirely online. our flipped course looked like this: at the first meeting with the students, we introduced the method and spent time explaining the reasons for the change, naturally stressing the benefits of using the method. since the approach transfers more responsibility for learning to students, the motivational aspect of the first seminar cannot be overemphasized. practice report 66 five days before each of our weekly classes (starting from week two), we published materials for the class in our e-learning platform (moodle). it included texts (collectively not more than 50 pages) and an audio or video (10 – 45 minutes) in which we offered students guidance on how to read the texts, introduced basic concepts and provided context. together with the materials, students received four relatively broad questions, which directed them to the major issues in the materials. one day before the seminar, we shared a multiple-choice quiz (10-15 questions) checking their understanding of the materials and topics that had been provided. each of the 3-4 quiz questions elaborated on one of the 4 broad questions students received with the content materials. during each of our classes, we spend first 15 minutes or so going through the quiz. we used google forms, which allowed us to make a self-assessing quiz that gave the students the designated correct answers and included comments from the teacher right after the submission. additionally, it allowed students to retake the quiz as many times as they wanted – both before the class, and before the final exam (as authors of the make it stick book7 point out, tests are a bad assessment method, but are a great method of learning, especially self-learning).8 when students arrived in the class, there was no need to give them the right answers and go through all the questions, we concentrated only on typical mistakes and difficult points. it also helped to prevent the challenge of some flipped classes: to come to class and just “repeat content that has been delivered online”. 9 since we saw the quizzes as a revision as well as learning tool and not a testing device, we even encouraged students to challenge the answers, come with more fitting options and help us to make the quizzes even better. 7 peter c. brown, henry l. roediger (iii), and mark a. mcdaniel make it stick. (harvard university press, 2014). 8 warren binford, ‘how to be the world's best law professor’ (2015) journal of legal education. 64, 542. 9 see: karim hajhashemi, nerina caltabiano and neil anderson, 'integrating digital technologies in the classroom: lecturers’ views on the flipped classroom approach' (2016) australian and international journal of rural education, 26(3), 17. practice report 67 during next 20-25 minutes, we went through 4 broad questions, which students received in advance with the materials. since these questions were going to be used for the final exam (and students knew this from week one), we wanted to make sure that all students knew what materials provide answers, where the controversies lay and how relevant these topics were for law students (it was, after all, sociology of law class that some future lawyers might underestimate as irrelevant). one or two of these questions were assigned to online break-out rooms to give students the opportunity to share the results of their work and work together on a collective response. even with over 150 students participating, when divided into groups of 5-6, it was possible to give them time to tackle the topic in a more intimate setting. each group then shared their solutions/arguments in a shared document (to avoid lengthy oral briefings) and the teacher provided a more general commentary. when a controversial idea appeared, we spent more time on it, with the most active students formulating their thoughts. the main points of the other 2-3 questions were rather quickly summarized by the teacher. the following 5-10 minutes provided room for other questions the students might had come across when preparing for the class. as a backup, we also had one or two more challenging questions ready. during the last couple of minutes of the meeting, we provided a quick summary of key points and introduced the topic for the following week. interestingly, some students wanted to stay longer and debate topics in more depth. i welcomed that and gradually turned that into an “official unofficial part of the class”: towards the end of each meeting, i offered to stay with students after the class (it typically took another twenty to sixty minutes). it resembled a small seminar for 1015 active students, who were bringing their inquiries (and disagreements, of course) and debating enthusiastically. in my experience, the online delivery was in fact beneficial in this regard, since after offline class my students of this course typically practice report 68 either leave, or come up to ask a quick individual question. no doubt, the impact of lockdowns, when people tend to hunger for social contact, played its role. to support students’ motivation and prevent them from falling off the course, we decided to give them a credited test every month (typically after every three weeks of teaching). these tests consisted entirely of questions from the weekly quizzes, we only slightly altered them (e.g. changed a positive statement into a negative or altered the name of the mentioned author) to make sure students read the options and did not just copy the correct answers. they needed to pass these tests (receive at least 50 %) to be allowed to take the exam at the end of the course. the tests thus were, as w. binford recommends, low-risk tests administered outside of the classroom with low or no impact on the student’s grade.10 3. benefits of the flipped classroom based on my experience with the flipped classroom, i see five major benefits of the method. they are as follows: 1. providing the content materials before the class allowed us to cut the length of weekly synchronous zoom meetings to roughly half of the typical session length (45-60 minutes instead of 90 minutes). based on the experience of mine, many of my colleagues and our students from teaching during the pandemic, as well as recommendations for synchronous teaching, good online delivery is rather short.11 similarly, many authors report the necessity to combat the “zoom fatigue”,12 effecting majority of participants in synchronous meetings 10 warren binford, ‘how to be the world's best law professor’ (2015) journal of legal education. 64, 542. 11 christina sabo, best practices for synchronous online teaching and learning | learning technologies at college of dupage [online] (2020) <https://www.codlearningtech.org/2020/10/05/best-practices-forsynchronous-online-teaching-and-learning/>; amy wallace, ‘cyberspace back to the classroom: taking lessons learned from teaching street law during the pandemic back to in-person instruction’ (2021) international journal of clinical legal education. 28(2). 12 jutta rump and marc brandt, 'zoom-fatigue' (2020) eine studie des instituts für beschäftigung und employability. ibe, ludwigshafen <https://www.ibe-ludwigshafen.de/wpcontent/uploads/2020/09/folien_ibe-studie_zoom-fatigue.pdf>; liz fosslien and mollie west duffy, 'how to combat zoom fatigue' (2020) harvard business review. 2020, <https://hbr.org/2020/04/how-topractice report 69 (one study reported that approximately 60% of respondents state experience with it).13 it leads, among others, to reduced concentration and impatience. one of the most effective solutions, well in line with our teaching experience, is to “limit the meeting time” as well as include frequent “breaks between and within meetings”.14 a. wallace recommended her street law students to limit „ screen for less than an hour – ideally around forty-five minutes“ and implemented „a 30/30/30 classroom framework. this schedule was thirty minutes on zoom, thirty minutes for an independent assignment, and then thirty minutes of zoom.“15 2. one of the greatest difficulties of the typical lecture (and to some degree of all teaching) is that it is inevitably delivered at a wrong pace. for some students it runs too quickly, some are bored by its slowness; some are more mentally alert in the morning, and for some their brains only start properly working in the afternoon.16 by providing the content in a form of a video, podcast or text, students can respect their rhythms, study at whatever speed suits them (i do not mind being played at the 2x, or indeed 0.5x speed) and can revisit the combat-zoom-fatigue>; jeremy n. bailenson, 'nonverbal overload: a theoretical argument for the causes of zoom fatigue' (2021) technology, mind, and behavior, 2(1) doi: 10.1037/tmb0000030; amy wallace, ‘cyberspace back to the classroom: taking lessons learned from teaching street law during the pandemic back to in-person instruction’ (2021) international journal of clinical legal education. 28(2). 13 jutta rump and marc brandt, 'zoom-fatigue' (2020) eine studie des instituts für beschäftigung und employability. ibe, ludwigshafen, https://www.ibe-ludwigshafen.de/wpcontent/uploads/2020/09/folien_ibe-studie_zoom-fatigue.pdf. 14 ibid. other solutions might include, as jeremy n. bailenson points out “… changes to the design of the zoom interface. for example, the default setting should be hiding the self-window instead of showing it, or at least hiding it automatically after a few seconds once users know they are framed properly. likewise, there can simply be a limit to how large zoom displays any given head… outside of software, people can use an external webcam and external keyboard that allows more flexibility and control over various seating arrangements. make “audio only” zoom meetings the default, or better yet, insist on taking some calls via telephone to free your body from the frustrum.“ jeremy n. bailenson, 'nonverbal overload: a theoretical argument for the causes of zoom fatigue' (2021) technology, mind, and behavior, 2(1) doi: 10.1037/tmb0000030. 15 amy wallace, ‘cyberspace back to the classroom: taking lessons learned from teaching street law during the pandemic back to in-person instruction’ (2021) international journal of clinical legal education. 28(2). 16 geoff petty, teaching today: a practical guide. (oxford university press, 2016); warren binford, ‘how to be the world's best law professor’ (2015) journal of legal education. 64, 542. https://www.ibe-ludwigshafen.de/wp-content/uploads/2020/09/folien_ibe-studie_zoom-fatigue.pdf https://www.ibe-ludwigshafen.de/wp-content/uploads/2020/09/folien_ibe-studie_zoom-fatigue.pdf practice report 70 material if needed, which is what many authors report students enjoy.17 i personally hugely enjoyed the fact that i didn’t have to look at bored student faces and know that whatever i do, the way i lecture – even when i do it interactively and only for a couple of minutes here and there during each seminar – is doomed to be truly beneficial only to a minority of students, since for the majority of them it will inevitably be at a wrong pace.18 moreover, during the pandemic, many people needed to undertake new duties and benefited from the flexibility the flipped classroom gave them. as j. nouri observed in his study, “students appreciated learning through using video material, the opportunity to study in their own pace, flexibility and mobility brought about by accessible video lectures, and that learning is easier and more effective within the frame of the flipped classroom.“. 19 to find the right pace of teaching is difficult in all classes but the larger the group and the less frequent interaction between the teacher and the students, the more difficult this task gets. lectures are, as pointed out earlier, popular by managers of education partly because they can accommodate many students at one time (hundreds, like in our course of sociology of law, and in some cases even thousands). while it is true that implementing flipped classroom does not decrease the number of students in the group, it does offer some solution to finding an appropriate teaching pace by allowing students to study the content of the lesson at their own pace before the class and 17 see the results of jalal nouri. 'the flipped classroom: for active, effective and increased learning– especially for low achievers' (2016) international journal of educational technology in higher education. 13 doi: 10.1186/s41239-016-0032-z; karim hajhashemi, nerina caltabiano and neil anderson, 'integrating digital technologies in the classroom: lecturers’ views on the flipped classroom approach' (2016) australian and international journal of rural education, 26(3), 17; amy wallace, ‘cyberspace back to the classroom: taking lessons learned from teaching street law during the pandemic back to inperson instruction’ (2021) international journal of clinical legal education. 28(2); gregory. s. mason, teodora. r. shuman and kathleen. e. cook, ‘comparing the effectiveness of an inverted classroom to a traditional classroom in an upper-division engineering course’ (2013) ieee transactions on education, 56(4), 430. 18 see geoff petty, teaching today: a practical guide. (oxford university press, 2016). 19 jalal nouri. 'the flipped classroom: for active, effective and increased learning–especially for low achievers' (2016) international journal of educational technology in higher education. 13 doi: 10.1186/s41239-016-0032-z. practice report 71 restrict the class time for interactions – between students and students and the teacher –, which is something traditional lectures lack and even modern interactive lectures typically do not provide in sufficient amount.20 it is only fair to add that finding the right teaching tempo might be challenging even for smaller courses and small group sessions, while even there some students work slower and some faster. therefore, thinking about flipping some parts of even smaller courses does make sense and might in fact lead to even more profound changes in course effectiveness.21 effectiveness of flipping the courses is supported also by experience from other areas, e.g. health professions education.22 1. students are given greater responsibility for their own learning. they must find time to cover the content materials and prepare answers for the provided questions. it is up to them to decide whether they want to study alone or with their fellow students. as other authors observe, passing more responsibility for learning to students, when done correctly, tends to increase their motivation and effectivity of learning.23 correspondingly, the role of the teacher changes: from lecturing stars in the class spotlight they become more managers of the course, facilitators of discussion and students’ learning; and a hopefully valuable resource. 20 for the importance of teaching interactively, see e.g. nadezhda o. yakovleva and evgeny v. yakovlev, 'interactive teaching methods in contemporary higher education' (2014) pacific science review, 16(2) 75; amy wallace, ‘cyberspace back to the classroom: taking lessons learned from teaching street law during the pandemic back to in-person instruction’ (2021) international journal of clinical legal education. 28(2). 21 for different flipped classroom formats, see: jacob bishop and matthew a. verleger, the flipped classroom: a survey of the research. (2013) 120th asee annual conference and exposition, june 23-26. 22 khe foon hew and chung kwan lo, 'flipped classroom improves student learning in health professions education: a meta-analysis' (2018) bmc medical education, 18(38), https://doi.org/10.1186/s12909-018-1144-z. 23 josephine bujan, 'increasing students’ responsibility for their own learning' (1996); lyn corno, 'encouraging students to take responsibility for learning and performance' (1992) the elementary school journal. 93(1), doi https://doi.org/10.1086/461713; gregory. s. mason, teodora. r. shuman and kathleen. e. cook, ‘comparing the effectiveness of an inverted classroom to a traditional classroom in an upper-division engineering course’ (2013) ieee transactions on education, 56(4), 430; brenda alvarez, 'flipping the classroom: homework in class, lessons at home' (2012) the education digest, 77(8), 18. practice report 72 2. the core of my work happens before the class (choosing the right texts, record a video, prepare the quiz and the synchronous meeting) and there are far fewer reasons to feel stressed about the class (“how well will i lecture today?”). to record oneself may be stressful, too (and it certainly was for me at the beginning), and time-consuming24, but i enjoyed that i could record the video as many times as i wanted to and as the number of attempts was steadily decreasing during the semester, since i got used to the camera and became less self-critical, i needed far less time to finish the video.25 eventually, i chose only audio format, which simplified the process even further. another great support was that the videos could be made available only to signed-in students and not all university students or even the whole internet, and only for limited time span (the current semester). like students, teachers also enjoy more flexibility in a flipped class. with proper preparation, the synchronous meetings should run smoothly, supported by the energy of students’ questions and interest in the topic, which is typically sparked by the provided content material and the questions. 3. i found it is far easier and quicker for me to cover the basics of each topic by flipping the class, which allows me to devote more time to its more difficult aspects. with the content provided via recorded videos or texts that students can revisit when it suits them and use when studying for the exam, with comprehension tested through self-evaluating weekly quizzes and with students having the opportunity to formulate their questions in synchronous meetings, i am far more confident that we really covered the basics in this way. during the weekly meetings, we could therefore spend most of the time discussing more challenging rather than basic issues. additionally, i was far 24 karim hajhashemi, nerina caltabiano and neil anderson, 'integrating digital technologies in the classroom: lecturers’ views on the flipped classroom approach' (2016) australian and international journal of rural education, 26(3), 17. 25 see also william r. slomanson, 'blended learning: a flipped classroom experiment' journal of legal education, 64(1), 93. practice report 73 more confident that we examined what was truly covered in the course (it was not only “said” during the class, but is stored in videos, podcasts, texts and quizzes students have at their hands). this experience is supported by the data from other courses. one study e.g. found that the flipped classroom model “allowed the instructor to cover more material” and that students “performed as well or better on comparable quiz and exam questions and on open-ended design problems”.26 4. weak points of a flipped classroom and how we addressed them as any method, also flipped classroom has its disadvantages.27 based on my experience with the method, these stranded out for me: 1. by transferring more responsibility for the learning process to students, teachers naturally lose some control. as a large portion of the student work is done at home, the teacher has no guarantee that students have actually watched assigned videos or read the required texts. some students might even get lost on the way and de facto drop out of the course during the semester. understandably, these possibilities are even more relevant in online courses. other authors also identify students’ engagement as an important challenge in flipping a class.28 to mitigate these risks, we ran weekly quizzes that provided basic feedback to both students and teachers and gave students credited tests every three weeks to keep them engaged during the semester and alleviate pressure typical for the last course week 26 gregory. s. mason, teodora. r. shuman and kathleen. e. cook, ‘comparing the effectiveness of an inverted classroom to a traditional classroom in an upper-division engineering course’ (2013) ieee transactions on education, 56(4), 430. 27 a good summary of challenges of flipped courses contains this meta-study: gökçe akçayir and murat akçayir, 'the flipped classroom: a review of its advantages and challenges' (2018) computers & education, 126, 334. the most often mentioned in analysed studies are these: time consuming, quality of videos, limited student preparation before class, workload increase. 28 karim hajhashemi, nerina caltabiano and neil anderson, 'integrating digital technologies in the classroom: lecturers’ views on the flipped classroom approach' (2016) australian and international journal of rural education, 26(3), 17. practice report 74 when tests are more typically taken. this approach is in line with the current scientific research of effective learning, which favours frequent, low-risk testing.29as w. binford summarizes it, “self-testing… and low-risk testing that can be administered outside of the classroom with low or no impact on the student’s grade… is a ‘high-utility’ learning method… we need to test our students earlier, more, and in low-risk settings if we want to increase their retention, comprehension, and test performance on that high-stakes final exam that we rely on for final assessment, as well as the bar exam after they graduate.”30 similarly, a metaanalyses of flipped health professions courses found that their effectiveness increases when “instructors use quizzes at the start of each in-class session”. 31 moreover, we deliberately included group work32 in synchronous meetings to activate peer-pressure and give students the opportunity to discuss their understanding of the assigned home materials and experience at least some teamwork. it also helped us to realize that simply attending lectures does not guarantee learning, when students remain passive inside but can even make things worse; it creates an illusion that students are “in certain way in contact with the topic” and deprives students of precious time for studying (even 45 minutes a week makes for a substantial portion of a study time).33 some studies also recommend not to apply this method to students of 29 warren binford, ‘how to be the world's best law professor’ (2015) journal of legal education. 64, 542; harry p. bathrick and lynda k. hall, 'the importance of retrieval failures to long-term retention: a metacognitive explanation of the spacing effect' (2005) journal of memory and language, 52(4), 566; nicholas c. soderstrom and robert a. bjork, 'testing facilitates the regulation of subsequent study time' (2014) journal of memory and language, 73(1), 99. 30 warren binford, ‘how to be the world's best law professor’ (2015) journal of legal education. 64, 542; john dunlosky, et al. 'improving students’ learning with effective learning techniques: promising directions from cognitive and educational psychology' (2013) psychological science in the public interest, 14(1), doi: https://doi.org/10.1177/1529100612453266. 31 khe foon hew and chung kwan lo, 'flipped classroom improves student learning in health professions education: a meta-analysis' (2018) bmc medical education, 18(38), https://doi.org/10.1186/s12909-018-1144-z. 32 for its importance, see e.g. gökçe akçayir and murat akçayir, 'the flipped classroom: a review of its advantages and challenges' (2018) computers & education, 126, 334; amy wallace, ‘cyberspace back to the classroom: taking lessons learned from teaching street law during the pandemic back to inperson instruction’ (2021) international journal of clinical legal education. 28(2). 33 see warren binford, ‘how to be the world's best law professor’ (2015) journal of legal education. 64, 542; and jalal nouri, 'the flipped classroom: for active, effective and increased learning–especially for low achievers' (2016) international journal of educational technology in higher education. 13 doi: practice report 75 the first year (which was the case of our course), since they need to familiarize with the university education first.34 2. teachers need to accept both the change of their role and that of an acceptable format of study materials. while traditional teaching methods – and lectures in particular – are “one teacher’s show”, where the teacher does most of the work (no wonder they are tired afterward), in flipped classes they become more managers of the course, facilitators of discussions and supporters of the students’ learning process. not every teacher is ready for such a shift and even those who are persuaded that they are will repeatedly find themselves talking during the classes far more than necessary. old habits die hard as the saying goes. we certainly did and needed to repeatedly remind ourselves of the benefits of the flipped approach that might be ruined by teachers assuming too much activity in the class. apart from the role of the teacher, the format of the study materials needs thought and development35 – not only lectures (typically recorded and shortened into more digestible versions) and texts (textbooks, articles) but other aids such as short videos and podcasts are being used.36 in this regard, the pandemic has certainly helped to open us towards using technology and a range of formats, which we previously overlooked or marginalized.37 10.1186/s41239-016-0032-z, s. 13., which concluded that “…this study indicate that the flipped classroom model seem to offer promising ways to engage students in more effective, supportive, motivating and active learning, especially for low achievers and students that may struggle with traditional lectures.“ 34 gregory. s. mason, teodora. r. shuman and kathleen. e. cook, ‘comparing the effectiveness of an inverted classroom to a traditional classroom in an upper-division engineering course’ (2013) ieee transactions on education, 56(4), 430; karim hajhashemi, nerina caltabiano and neil anderson, 'integrating digital technologies in the classroom: lecturers’ views on the flipped classroom approach' (2016) australian and international journal of rural education, 26(3), 17. 35 some authors require that the materials provided in flipped classroom before the class are videos, not written materials. see: jacob bishop and matthew a. verleger, the flipped classroom: a survey of the research. (2013) 120th asee annual conference and exposition, june 23-26. 36 for varieties of the flipped classroom method, see: ibid. 37 for concrete instances of out-of-class activities in flipped courses that might be used with the help of technology, as well as challenges that they bring, see the following meta-study: gökçe akçayir and practice report 76 3. last but not least, any change requires extra input – resource-wise and in terms of time and energy. to follow the status quo is typically – in the short run at least – less demanding, while flipping things around needs effort. the larger the group the more input may be required even if key considerations remain the same. most of the “transactional costs” of the change lie with teachers, who need to say goodbye to some (or indeed most of) of their previous lesson plans and devote extra time to finding appropriate readings, record videos and prepare quizzes.38 but also students need to get used to a new model of class organization, especially when they have not yet experienced a flipped classroom before. it certainly helped us to introduce the method and its benefits at the very first meeting and repeatedly remind ourselves and sometimes also the students about why this new format has been chosen. based on the course evaluation, students support implementing the method (54 % respondents see it as a positive change) and especially appreciate recording videos (66 % of them would even prefer to have them for every lesson) and group work during synchronous meetings. the number of students attending the course was not decreasing, which had rather been a norm in previous years. however, the evaluations also revealed that some students felt overwhelmed and considered the provided materials too demanding, which seems to be the most common challenge in a flipped course.39 for the next year, we clearly need to better both prepare and accommodate students’ expectation of the course and reconsider the length and scope murat akçayir, 'the flipped classroom: a review of its advantages and challenges' (2018) computers & education, 126, 334. 38 to see how demanding this task may be, see: karim hajhashemi, nerina caltabiano and neil anderson, 'integrating digital technologies in the classroom: lecturers’ views on the flipped classroom approach' (2016) australian and international journal of rural education, 26(3), 17. 39 see e.g. this meta-study: gökçe akçayir and murat akçayir, 'the flipped classroom: a review of its advantages and challenges' (2018) computers & education, 126, 334. practice report 77 of provided materials. the experience of other teachers suggest that videos tend to be more effective than texts and that their length might be reduced.40 this experience is in line with previous research. as observed in one of the studies, “students recognized that the new format required self-discipline and necessitated some adjustment to their study habits. by week four, students felt that the flipped class was a better use of class time and that the format better prepared them for engineering practice.”41 moreover, over the course, students may indeed start watching the videos more often (e.g. one study found that videos tend to be watched almost 3 times by every student).42 additionally, based on the experience with remote teaching of flipped and traditional courses during the pandemic, i will seriously consider using some proven interactive tools even during face-to-face meetings, such as jamboard, kahoot or padlet.43 likewise, i am ready to make use of technology and invite virtual guest-lectures, which will allow me to bring professionals from the field and experts from other countries.44 the experience with embracing the online dimension of our work and not leaving it completely once schools fully reopen is shared by many teachers and runs e.g. through the papers published in the special issue of the international journal of clinical legal education from 2020, which maps the responses to coronavirus in clinical and public legal education.45 40 see: jacob bishop and matthew a. verleger, the flipped classroom: a survey of the research. (2013) 120th asee annual conference and exposition, june 23-26. for the question of the video’s length, see the last part of this paper. 41 gregory. s. mason, teodora. r. shuman and kathleen. e. cook, ‘comparing the effectiveness of an inverted classroom to a traditional classroom in an upper-division engineering course’ (2013) ieee transactions on education, 56(4), 430. 42 ibid. 43 amy wallace, ‘cyberspace back to the classroom: taking lessons learned from teaching street law during the pandemic back to in-person instruction’ (2021) international journal of clinical legal education. 28(2). 44 see ibid. 45 hugh mcfaul and francine ryan, 'special issue clinical and public legal education: responses to coronavirus' (2020) international journal of clinical legal education, 27(4). practice report 78 5. questions for further thought despite the generally positive experience with the method, several aspects require further consideration. they might represent space for further development or shortcoming (or even a trap) of the method – i clearly need more experience with the flipped approach to be able to tell. some of these issues have indeed been addressed by other teachers, whose experience i take as an inspiration. a) how much content material should be provided before the class? generally, the shorter the videos the more students watch them.46 some authors recommend limiting yourself to only circa 10 minutes long video.47 but would not it mean that students will naturally stay only on the surface of the topic, unable to address its more difficult aspects? we used combination of circa 30 minutes long video/audio recordings and texts of up to 50 pages. b) for the sake of both students and teachers, we started each session with a quick non-credited quiz testing students’ understanding of the provided materials. many other teachers did the same, sometimes upon recommendations of their students, and considered it a “highly successful practice”. 48 some authors suggest that classes may successfully run without these quizzes, since students are adult enough to prepare responsibly for the class and understand the topic.49 however, wouldn’t even responsible students benefit from checking their understanding through weekly quizzes?50 can teaching effectively work even without these entrance tests, especially in large courses? 46 jacob bishop and matthew a. verleger, the flipped classroom: a survey of the research. (2013) 120th asee annual conference and exposition, june 23-26. 47 william r. slomanson, 'blended learning: a flipped classroom experiment' journal of legal education, 64(1), 93; educause. 7 things you should know about flipped classrooms. shorter vid 48 jacob bishop and matthew a. verleger, the flipped classroom: a survey of the research. (2013) 120th asee annual conference and exposition, june 23-26. 49 william r. slomanson, 'blended learning: a flipped classroom experiment' journal of legal education, 64(1), 93. 50 see peter c. brown, henry l. roediger (iii), and mark a. mcdaniel make it stick. (harvard university press, 2014). practice report 79 c) in what ways can we include students in the design of a flipped course? they can surely prepare a quiz checking their basic understanding of the content materials and perhaps make collective notes from the class saved into a shared document, but can they make introductory videos or organize synchronous meetings? d) a flipped class clearly demands more active students than in traditional settings and might not suit everybody. as a meta-study on flipped classroom summarizes, “general reports of student perceptions were relatively consistent. opinions tended to be positive, but there were invariably a few students who strongly disliked the change”.51 what other strategies – apart from quizzes, short videos and interactive, student-oriented synchronous meetings – can be used to positively increase student motivation and experience from a flipped class? the literature evaluating the effectiveness of a flipped classroom has many more to offer (e.g. problem solving, groups projects, concept mapping or word clouds).52 without overlooking the negative side of flipping a class, nor forgetting the questions raised above, i came to the conclusion that its advantages prevail and i intend to use it in the future, be that at distant and/or in face-to-face learning situations. my expectation, based on the experience of others,53 is that it will work even better faceto-face since physical interaction is more likely to aid participation and engagement – 51 jacob bishop and matthew a. verleger, the flipped classroom: a survey of the research. (2013) 120th asee annual conference and exposition, june 23-26. also a meta-study from the field of health professions education reveals that „more respondents reported they preferred flipped to traditional classrooms.“. hew, khe foon – lo, chung kwan. flipped classroom improves student learning in health professions education: a meta-analysis. 52 see: khe foon hew and chung kwan lo, 'flipped classroom improves student learning in health professions education: a meta-analysis' (2018) bmc medical education, 18(38), https://doi.org/10.1186/s12909-018-1144-z. 53 william r. slomanson, 'blended learning: a flipped classroom experiment' journal of legal education, 64(1), 93. practice report 80 which is an experience many of us were forced to learn during the pandemic.54 by flipping the course even in its face-to-face version and providing the content of the lesson in advance, there will be far more time and space for interactive elements such as group work and discussion. these elements are typically enjoyed by both students and teachers and flipping a class provides more space for them, since it frees much of the time of synchronous meetings.55 recorded videos/audios available during the whole semester for signed-in students, quizzes checking the understanding of homework and robust e-learning support are tools that i definitely intend to use extensively even after the schools fully reopen. 54 amy wallace, ‘cyberspace back to the classroom: taking lessons learned from teaching street law during the pandemic back to in-person instruction’ (2021) international journal of clinical legal education. 28(2). 55 see: jacob bishop and matthew a. verleger, the flipped classroom: a survey of the research. (2013) 120th asee annual conference and exposition, june 23-26; gregory. s. mason, teodora. r. shuman and kathleen. e. cook, ‘comparing the effectiveness of an inverted classroom to a traditional classroom in an upper-division engineering course’ (2013) ieee transactions on education, 56(4), 430. reviewed article 7 state of the nation: 10 years of entrepreneurial law clinic supervision in the united kingdom elaine gregersen, northumbria university, uk* abstract in july 2012, i delivered my first conference paper at the international journal of clinical legal education conference: ‘taking care of business: a new clinician’s experience of supervising and developing commercial case work.’1 the audience was sparse. when the chair asked for questions, the room echoed in silence. a few years later, i was called a ‘danger’2 to clinical legal education because my students provided free advice to entrepreneurs. the service was criticised as being at odds with the social justice mission of clinical legal education. i remember it being a lonely time. only a handful of uk entrepreneurial law clinics existed, and we received little attention in research literature. * elaine.gregersen@northumbria.ac.uk 1 elaine campbell, 'taking care of business: a new clinician’s experience of supervising and developing commercial case work' (international journal of clinical legal education, durham, uk, 11 july 2012). 2 elaine campbell, 'a dangerous method? defending the rise of business law clinics in the uk' (2015) 49 the law teacher 165. mailto:elaine.gregersen@northumbria.ac.uk international journal of clinical legal education state of the nation 8 a decade on, i am still taking care of the business and commercial law clinic at northumbria law school. much has changed. we have seen the rapid development of commercially focused law clinics across the uk, with a diverse range of approaches. in this article i will make a major contribution to our understanding of the state of the nation for entrepreneurial law clinics in the united kingdom today. using elements of narrative inquiry and autobiographical writing, i will (a) reflect on my journey as one of the first uk entrepreneurial law clinic supervisors, (b) report on the increasing number and models of law clinics offering advice to businesses, and (c) argue for the further development of research in this distinctive and flourishing area of clinical practice. 1. introduction joan didion once wrote, ‘we tell ourselves stories in order to live.’3 narratives can help us make sense of the world. they throw light on human experience and understanding. unsurprisingly, storytelling has become a fundamental foundation of contemporary qualitative methodologies, such as (auto)ethnography, phenomenology, and narrative inquiry.4 3 joan didion, the white album (macmillan 1990). 4 a detailed exploration of auto(ethnography), phenomenology, and narrative enquiry is beyond the scope of this paper. however, if you are interested in the use of storytelling in research, see, arthur p. bochner, 'it's about time: narrative and the divided self' (1997) 3 qualitative inquiry 418; arthur w. frank, the wounded storyteller: body, illness, and ethics (the university of chicago press 1997); d. reviewed article 9 i have been telling stories about entrepreneurial law clinic supervision for 11 years.5 these tales allow me to reflect on what has gone before and consider the changes to my personal practice as well as the wider cultural framework of clinical legal education. they have also afforded me the opportunity to see humour in situations that, in the moment, were stress-inducing and/or frustrating. in this article, after more than a decade as a clinical supervisor, i weave narrative and literature review, story and research,6 as i examine my journey to supervision, the jean. clandinin and f. michael. connelly, narrative inquiry: experience and story in qualitative research (jossey-bass, inc 2000); arthur w. frank, 'experiencing illness through storytelling', handbook of phenomenology and medicine (springer 2001); carolyn ellis, the ethnographic i: a methodological novel about autoethnography (altamira press 2004); susan h mcfadden, vanessa frank and alyssa dysert, 'creativity in the “now” of advanced dementia: glimpses of the lifeworld through storytelling and painting' (2008) 2 journal of aging, humanities, and the arts 135; arthur p. bochner, 'on first-person narrative scholarship: autoethnography as acts of meaning' (2012) 22 narrative inquiry 155; janelle f. palacios and others, 'storytelling: a qualitative tool to promote health among vulnerable populations' (2015) 26 journal of transcultural nursing 346; arthur p. bochner and carolyn ellis, evocative autoethnography: writing lives and telling stories (routledge 2016); stacy holman jones, tony adams and carolyn ellis, 'introduction: coming to know autoethnography as more than a method', handbook of autoethnography (routledge 2016); kate p nurser and others, 'personal storytelling in mental health recovery' (2018) 23 mental health review journal 25; joyce chung and others, 'storytelling in female veterans survivors of traumatic brain injury: a phenomenological analysis' (2021) 102 archives of physical medicine and rehabilitation e34. 5 campbell (n 2); elaine campbell, 'taking care of business: challenging the traditional conceptualisation of social justice in clinical legal education' in chris ashford and paul mckeown (eds), social justice and legal education (cambridge scholars publishing 2016); victoria roper and others, 'understanding the scope of business law clinics: perspectives from the united kingdom, israel and the united states ' (2018) 5 journal of international and comparative law 217; elaine gregersen, 'the lived experience of a university law clinic supervisor: an autoethnographic inquiry', northumbria 2019); elaine gregersen, 'telling stories about the law school: autoethnography and legal education' (2022) 56 the law teacher 241. 6 this paper utilises autoethnographic and autobiographic techniques, but it should not be labelled as an autoethnography. for more on autoethnography, see elaine gregersen, ‘telling stories about the law school: autoethnography and legal education’ (2022) 56 the law teacher 241. international journal of clinical legal education state of the nation 10 development of entrepreneurial law clinics in the uk during my time in the field, and the state of the nation today. 2. my journey to entrepreneurial law clinic7 supervision my history with northumbria university goes back to the late 1990s when, as a teenager, i worked evenings and weekends as a ‘shelver’ in the university library. my role, as the title might suggest, was to place recently returned books back on the library shelves. the dewey decimal system was my best friend as i wheeled my metal trolley purposefully through the dimly lit rows of knowledge, ensuring every book was in its rightful place. even now, some 22 years on, when i spot a misplaced textbook i feel compelled to put it back where it belongs. in 1999, when i left to study law at another university in another city, the library staff presented me with a giant cardboard box generously filled with everything a young person might need in their first home away from home. three years later, on graduation day, i received a telephone call. my application to become a graduate tutor at northumbria law school had been successful. the role was fixed term for two years. i taught company law and law of business associations and i loved it. towards the end of my second year in post, i wanted to 7 there are many ways of describing law clinics that provide advice to businesses. some examples include: business law clinic, entrepreneurial law clinic, commercial law clinic, start-up clinics, legal advice for enterprise, business law café, commercial café, business and enterprise service. in this paper i use the phrase ‘entrepreneurial law clinic’ to complement the language used in the title of this special issue. reviewed article 11 become a permanent member of the lecturing staff, but i had also been offered a training contract with national corporate law firm. i was torn. my colleagues gave me excellent guidance. ‘go out into the world,’ they said. ‘learn about the legal profession. get that experience. and then, when you’re ready, you can come back to academia and tell your students all about it.’8 i followed the advice. in march 2011, after nine years of legal practice specialising in corporate, commercial and intellectual property law, i re-joined northumbria law school. this time i was employed as a solicitor tutor, teaching exclusively in the law school’s pro bono law clinic, the student law office. the student law office was (and still is) one of the longest running clinical programmes in the uk.9 in 1981, when northumbria university was still known as newcastle polytechnic, a small number of students taking a legal methods and institutions course were offered the opportunity to advise their fellow students.10 at the time, due to professional practice rules and ‘a general concern about a possible threat to local solicitors’11 the clinic and its students could not act for members of the wider community, go on record at court, or apply for legal aid for eligible clients. by 8 gregersen (n 5). 9 cath sylvester, jonny hall and elaine hall, 'problem-based learning and clinical legal education: what can clinical educators learn from pbl' (2004) 4 international journal of clinical legal education 39. 10 ibid. 11 ibid 40. international journal of clinical legal education state of the nation 12 the 1990s, however, bolstered by the growing uk clinical movement and relaxation of practice rules,12 the office was run for credit and offered legal advice to the general public.13 when i became part of the team, northumbria law school had just won the attorney general’s award for the pro bono school of the year 2010, and also the national training award 2010, where the judging panel called the programme ‘outstanding, exemplary and truly inspirational.’14 there were 165 students providing advice to real clients during that year, covering general civil litigation, crime and criminal appeals, employment law, housing law, welfare benefits, family law, and small business.15 students were divided into firms, typically comprising six students and a supervisor, with each firm dealing with a different area of law according to the supervisor’s expertise.16 the small business part of the clinic had existed since 2007. my assignment was to develop that work. at the time, there were a small number of students undertaking 12 ibid. also see g. james and m. woodley, 'the relationship between academic legal education and the legal profession: the review of legal education in england and wales and the teaching hospital model' (2005) european journal of legal education 1. 13 sylvester (n 9); jonny hall, 'professor philip kenny a leader in the uk and international clinical legal education movement a personal tribute' (2016) international journal of clinical legal education 4. 14 northumbria university, ‘awards and prizes’ (northumbria law school, 2018) <https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-lawschool/study/student-law-office/and-the-winner-is/> accessed 1 october 2022. 15 northumbria university, ‘student law office annual report 2010-2011’ (northumbria law school, 2011) (2011) (on file with author, copy available upon request). 16 ibid. https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/and-the-winner-is/ https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/and-the-winner-is/ reviewed article 13 this work, which tended to focus on charities and low-income businesses. i changed the title to the business and commercial law clinic because i wanted the name to reflect the fact that, moving forward, we would look to serve more than ‘small’ entities. using social media and other marketing tools,17 i encouraged businesses of all sizes and means to come to the clinic. i supervised three firms. 3. research on entrepreneurial law clinics in the early 2010s when i came into post, i searched the literature for people like me. i wanted to understand what my fellow clinicians did in their entrepreneurial law clinics and learn about their strategic plans and pedagogic research. i found a wealth of research in the us journals, especially clinical law review, journal of affordable housing & community development law, and journal of legal education. entrepreneurial law clinics had existed in the united states since the 1970s. there were ‘a handful’18 of small business clinics in the united states in the late 1990s, but growth was still far greater than in the uk.19 in 2016, there were at least 140 law clinics available across american bar association-approved law 17 including our student-led blog <https://www.wetakecareofbusiness.wordpress.com>. 18 susan r. jones and jacqueline lainez, 'enriching the law school curriculum: the rise of transactional legal clinics in u.s. law schools' (2013) 43 washington university journal of law & policy 85, 92. 19 this could be attributed to the fact that legal education in the united states is graduate education. law in england and wales is taught at undergraduate level. https://www.wetakecareofbusiness.wordpress.com/ international journal of clinical legal education state of the nation 14 schools.20 the clinics covered vast array of legal issues, including intellectual property, economic development, bio-tech, and entertainment law.21 clinical faculty contributed a significant number of publications on socio-economic justice,22 cross-disciplinary opportunities23 and cross-cultural issues24 in the context of entrepreneurial law clinics. i was particularly drawn to professor susan r. jones’ work. her seminal article of 201325 (written with jacqueline lainez) discussed in detail the evolution of us entrepreneurial law clinics over the decades. the article also explored pedagogic training, ethical and practice issues, looked at developments in available legal structures, and covered curriculum design and assessment. this extensive piece acted as a follow up to another article written by jones,26 published 15 years earlier, calling for law school clinics to adapt to demands and opportunities, and expand entrepreneurial assistance. 20 ibid. 21 ibid. 22 susan r. jones, 'promoting social and economic justice through interdisciplinary work in transactional law' (2004) 14 washington university journal of law & policy 249; susan r. jones, 'transactional law, equitable development, and clinical legal education' (2005) 14 journal of affordable housing & community development law 213. 23 s. r. jones, 'transactional lawyers supporting economic development in the nation's capitol' (1999) 9 journal of affordable housing & community development law 18; dina schlossberg, 'an examination of transactional law clinics and interdisciplinary education' (2003) 11 journal of law and policy 195; jones 2004 (n 22), jones 2005 (n22); susan r. jones, 'supporting urban entrepreneurs: law, policy, and the role of lawyers in small business development' (2007) 30 western new england law review 71. 24 paulette j. williams, 'cross-cultural teaching in the business law clinic' (2008) 76 tennessee law review 437. 25 jones and lainez (n 18). 26 susan r. jones, 'small business and community economic development: transactional lawyering for social change and economic justice' (1997) 4 clinical law review 195. reviewed article 15 then, in 2014, professor jones published a companion article27 designed to spark a robust conversation in the legal community about transactional clinic design trends and opportunities. the research was brimming with details of innovative clinics in the united states. this included the university of michigan zell entrepreneurship and law program (zeal) which had launched in 2012 following a $5 million donation from alumnus and entrepreneur sam zell and was dedicated solely to representing student entrepreneurs.28 another model, colorado law school’s entrepreneurship legal clinic, assisted in the commercialisation of university-developed technology.29 jones’ own clinic, the george washington law small business & community economic development clinic (gw law sbced), worked with washington area lawyers for the arts (wala) in several ways. the clinic provided direct legal services in a lawyer/client relationship.30 it also acted as a community partner and sought case referrals from wala.31 gw law sbced joined clinic students from american university intellectual property clinic to partner with wala’s live clinic and held a 2hour walk in legal clinic for registered participants.32 in addition, gw law sbced engaged in action research projects including the production of a white paper on the creative economy for wala.33 27 susan r. jones, jacqueline lainez and debbie lovinsky, 'viewing value creation by business lawyers through the lens of transactional legal clinics' (2014) 15 uc davis business law journal 49. 28 ibid. 29 ibid. 30 ibid. 31 ibid. 32 ibid 76. 33 ibid 73. international journal of clinical legal education state of the nation 16 the article went on to identify and describe the clients and communities served by the law clinics: arts and entertainment, sustainable agriculture, corporate laboratory, international clients student entrepreneurs, microbusiness and microfinance organizations and immigrant entrepreneurs. i remember marvelling at the breadth and diversity of the models on offer, and the detail included. the article ran to 106 pages with 296 footnotes. elsewhere, other us researchers were re-framing the role of business lawyers as ‘enterprise architects’,34 promoting the advantages of inter-disciplinary clinics,35 and incorporating critical legal theory into entrepreneurial law clinic pedagogy.36 there were articles on economic justice37 and articles on complex projects.38 then there were articles on engaging outside counsel to work with students as supervisors39 and articles on the construction of entrepreneurial law clinics as a response to the financial crisis.40 as i write, i am reminded of the note jones placed in her 2013 article. she said it could not possibly ‘capture the richness and variation of all 34 george w dent jr, 'business lawyers as enterprise architects' (2009) 64 the business lawyer 279. 35 schlossberg (n 23); eric j. gouvin and others, 'interdisciplinary transactional courses' (2010) 12 transactions: tennessee journal of business law 101. 36 alina s. ball, 'disruptive pedagogy: incorporating critical theory in business law clinics' (2015) 22 clinical law review 1. 37 lynnise e. phillips pantin, 'the economic justice imperative for transactional law clinics' (2017) 62 villanova law review 175. 38 laurie hauber, 'complex projects in a transactional law clinic' (2008) 18 journal of affordable housing & community development law 247. 39 alicia e. plerhoples and amanda m. spratley, 'engaging outside counsel in transactional law clinics' (2014) 20 clinical law review 379. 40 judith fox, 'consumer law clinics: community-based lawyering a social justice response to the financial crisis' (2013) 10 georgetown journal on poverty law & policy 517 . reviewed article 17 transactional clinics.’41 i find myself feeling the same way in relation to the research i read back then. i cannot possibly capture the depth and variety of the research into entrepreneurial law clinics in the us at that time. in sharp contrast, those of us involved in uk entrepreneurial law clinics were not regularly publishing research about our clinics. 10 years ago, the international journal of clinical legal education contained zero articles relating to entrepreneurial law clinics. another leading journal, the law teacher, was well known for publishing work on experiential learning and clinical teaching but i failed to locate any research relating to business law advice. i knew there were people like me out there, but aside from our us clinic colleagues i was unable to find anyone who was writing about their work in the uk. 4. the development of uk entrepreneurial law clinics in the last 10 years in july 2012, i delivered my first conference paper at the international journal of clinical legal education conference: ‘taking care of business: a new clinician’s experience of supervising and developing commercial case work.’42 in the paper i concentrated on the development of my entrepreneurial work and reviewed what did (and did not) work during my first academic year as a clinician. i structured my 20 minutes into what i termed the “three ‘c’s: connectivism (designing experiences 41 jones and lainez (n 18). 42 campbell (n 1). international journal of clinical legal education state of the nation 18 where students could engage in networking), commercial awareness (training students to think like a commercial lawyer) and creating a product (document drafting and presentation). the audience was sparse. when the chair asked for questions, the room echoed in silence. i recall my line manager, in attendance for moral support, filling the gap by asking an amiable and uncontroversial question. i did not meet any other uk entrepreneurial law clinicians that day. over the next few years, i delivered several papers arguing that business law clinics offered positive opportunities for students, clients, and institutions. i spoke at funded workshops,43 internal research conferences,44 and the commonwealth legal education conference.45 in 2013, i became aware of qlegal a scheme where postgraduate law students at queen mary university of london were providing free support to start-ups and entrepreneurs with supervision from private practice lawyers and academic staff.46 at the time, qlegal was under the direction of patrick cahill, a clinician buzzing with ideas, enthusiasm, and knowledge. we set up a referral scheme between our two programmes, and my clinic students assisted patrick and his students in registering 43 elaine campbell, 'business clinics: opportunity knocks?' (running a legal clinic: facing the challenges and sharing good practice, northumbria law school, uk, 12 february 2014). 44 elaine campbell and siobhan mcconnell, 'commercial awareness: what is it and can we teach it?' (northumbria research conference, northumbria university, uk, 21 may 2014). 45 elaine campbell and victoria gleason, 'creativity and commerce: the rise of the experiential business law clinic in the uk' (commonwealth legal education conference, glasgow, uk, 9 april 2015). 46 queen mary university of london, ‘qlegal’ <https://www.qmul.ac.uk/qlegal/> accessed 1 october 2022. https://www.qmul.ac.uk/qlegal/ reviewed article 19 their qlegal trade mark.47 patrick told me about other entrepreneurial law clinics he knew such as own-it,48 an intellectual property advice service for london-based creatives at university of the arts london, and start-ed,49 a free service staffed by city, university of london law school students with supervision from local professionals. in 2015, we gave a paper together at the gaje/ijcle conference in turkey: ‘seeing both sides: reflections on a transactional clinic collaboration.’50 this was the first time two uk-based entrepreneurial law clinicians had delivered a cowritten paper at a major clinical conference. around the same time as patrick and i were collaborating on projects and papers, i received an email from a student at another uk-based law school clinic requesting assistance with their new small business unit. the email was a surprise, because the law school in question was explicit in its focus on social justice (in its traditional sense), building on the vision of clinical legal education as a provider of alms to those who could not access legal help elsewhere. the clinic had clear restrictions on who could access assistance and people coming to the clinic for help might be asked 47 elaine campbell and patrick cahill, 'seeing both sides: reflections on a transactional clinic collaboration' (gaje/ijcle conference, turkey, 22 july 2015). 48 university of the arts london (2004) <http://www.own-it.org/aboutus/> accessed 1 october 2022. i note the website has not been updated for some time, with broken links and some features not loading at all. 49 city, university of london, ‘start-ed pro bono legal clinic’ <https://experience.city.ac.uk/activity/start-ed-pro-bono-legalclinic#:~:text=city%2c%20university%20of%20london's%20start,professional%20advisors%20and%2 0experienced%20entrepreneurs> accessed 1 october 2022. 50 elaine campbell and patrick cahill, 'seeing both sides: reflections on a transactional clinic collaboration' (gaje/ijcle conference, turkey, 22 july 2015). http://www.own-it.org/aboutus/ https://experience.city.ac.uk/activity/start-ed-pro-bono-legal-clinic#:~:text=city%2c%20university%20of%20london's%20start,professional%20advisors%20and%20experienced%20entrepreneurs https://experience.city.ac.uk/activity/start-ed-pro-bono-legal-clinic#:~:text=city%2c%20university%20of%20london's%20start,professional%20advisors%20and%20experienced%20entrepreneurs https://experience.city.ac.uk/activity/start-ed-pro-bono-legal-clinic#:~:text=city%2c%20university%20of%20london's%20start,professional%20advisors%20and%20experienced%20entrepreneurs international journal of clinical legal education state of the nation 20 to disclose information about their income and savings. this was substantially different to my clinic at northumbria. our service was free to anyone, no matter their economic means. the clinic student visited the student law office and attended one of my firm meetings, sharing their experience and discussing the differences between our two establishments. it was an eye-opening conversation for my students, who were perhaps naively under the impression that our clinic adhered to a universal model. following the visit, when i later caught up with the student, they said that they were at pilot stage and running their first event in partnership with a national law firm. after this, they were taking on their first three clients and were employing a student to work on the project during the summer months. full launch was anticipated in 2016/2017. i mention this project because, for me, it represented a shift in the development of entrepreneurial law clinics in the uk. the other clinic was not moving away from its guiding principles in any way the advice would still be offered to those who did not have the financial means to seek support from private practice. however, the fact that the clinic was even entertaining the possibility of advising businesses in conjunction with a corporate firm felt rather radical at the time. reviewed article 21 i had encountered regular criticism of my approach to clinical legal education in the preceding years. at the end of my papers and presentations, the same question would crop up: ‘where’s the social justice?’ my fellow clinicians could not understand how i could offer free legal advice to businesses that could afford to pay private lawyers and still be part of a movement founded on social justice principles. this culminated in one audience member calling me a ‘danger’51 to clinical legal education. my argument was (and still is) that the traditional conceptualisation of social justice in the context of clinical legal education needed to be challenged.52 i saw the value in providing my students, who on the whole did not come from privileged backgrounds, the opportunity to advise a business client in the hope that this would improve their career prospects.53 i could see the knock-on effect of giving legal advice to an established local company for free – more money to pay wages, to expand, to provide services to the community, and to promote economic growth in our local area.54 these benefits seemed ‘socially just’ to me. so when i spoke to the clinic student who was wanting to set up a small business unit at his law school and – without changing anything about the way his clinic was run or its founding principles we were able to talk openly and harmoniously about a wider definition of social justice, this seemed like a seminal moment. 51 campbell (n 2). 52 ibid., elaine campbell, 'recognizing the social and economic value of transactional law clinics: a view from the united kingdom' (2016) 65 journal of legal education 580. 53 campbell (n 52); roper (n 5). 54 ibid. international journal of clinical legal education state of the nation 22 the challenges i faced when explaining the entrepreneurship clinic at conferences may have also been attributable to enduring questions about the nature of legal education itself. an in-depth review of the legal education literature at large is beyond the scope of this article55, but it is important to note long-standing tensions between ‘academic’ and ‘vocational’ aspects of law teaching. traditionally, legal education in england and wales have involved ‘rigid distinctions’56 between the academic, vocational, and continuing stages of training. when i embarked upon the development of the entrepreneurship law clinic the typical route for a law student comprised a 3-year academic degree, then (if they wished) postgraduate vocational training. this was not always the case, however. northumbria university was one of the first institutions to offer an integrated academic and vocational package, in the 4year masters in law degree, where vocational training and assessment sat alongside academic subjects. that said, this example of blended academic and vocational legal education was the exception rather than the norm.57 i can only speculate, but the imposition of what might have been viewed as training suitable out with the 55 i recommend a boon and j webb, ‘legal education and training in england and wales: back to the future?’ (2008) 58 journal of legal education 79 – an excellent and detailed commentary on historical development of english legal education going back to the statute of henry iii in 1234. in addition, if you are looking for recent conversations in this arena i particularly recommend rachel dunn, paul maharg, and victoria roper (eds) what is legal education for? reassessing the purposes of early twenty-first century learning and law schools (routledge 2023). 56 boon and webb (n55) 80. 57 in addition, universities (in england and wales) still had to contend with the requirement to produce a qualifying law degree made up of various elements. reviewed article 23 academic law degree may have troubled some colleagues even those who were inclined toward experiential education as part of the degree programme.58 several years later, in 2017, i experienced another example of the changing landscape for business advice clinics i was invited to give the keynote speech59 at the inaugural commercial law clinics roundtable in london delivered by qlegal. at the roundtable we discussed the current models of entrepreneurial law clinics, best practice in developing these clinics, the skills students develop when advising clients on commercial matters, and legal and non-legal career paths for students.60 there were 46 people on the attendee list,61 with representatives from law schools, organisations, and businesses.62 i remember looking out at the audience as i stood behind the lectern, thinking back to my 2012 conference paper, which garnered little interest, and how alone i had felt only five years earlier. research into entrepreneurial law clinics in the uk also took tentative steps forward. the first piece of research specifically focusing on a uk-based entrepreneurial law 58 i have to say i have not had a critical response to my clinical work for a significant number of years now this may reflect the changing nature of legal education generally and the prevalence of law clinics in university law schools today. 59 elaine campbell, 'the dark knight rises: what next for business & commercial law clinics?' (1st commercial law clinic roundtable, london, 3 march 2017). full transcript available at <https://www.elainegregersen.com/academia>. 60 queen mary university of london, ‘commercial law clinics roundtable’ (3 march 2017) <https://www.qmul.ac.uk/ccls/events/items/commercial-law-clinics-roundtable.html> accessed 1 october 2022. 61 the participant list is available at: <https://docs.google.com/spreadsheets/d/1nwiw34fta3hm6pxnlbaaks10twwm4nsqworpcp42uz s/edit#gid=0>. 62 ibid. https://www.elainegregersen.com/academia https://docs.google.com/spreadsheets/d/1nwiw34fta3hm6pxnlbaaks10twwm4nsqworpcp42uzs/edit#gid=0 https://docs.google.com/spreadsheets/d/1nwiw34fta3hm6pxnlbaaks10twwm4nsqworpcp42uzs/edit#gid=0 international journal of clinical legal education state of the nation 24 clinic was published here in the international journal of clinical legal education.63 the clinic was start-ed, a pro bono advice service for start-ups based at city university of london which patrick had told me about a few years earlier. since its inception in 2012, start-ed had served more than 500 start-ups by offering weekly sessions where volunteer students would work with a commercial lawyer and offer high-level signposting of key legal issues.64 the individuals involved in the startups were not offered representation and there was no ongoing relationship with the clinic or the lawyer. however, the start-ups were able to return to subsequent sessions for additional assistance and signposting. the research highlighted pedagogic issues, such as problems with attendance (relating to students, lawyers, and start-ups), alongside interesting data around the legal issues start-ups sought assistance. for example, 53% of start-ups attending the clinic sessions had difficulty determining the appropriate corporate vehicle.65 this resonated with my own experience, where much of my supervisory time was spent unpacking exactly what type of business structure our clients had (or thought they had) as this had a fundamental impact on the advice my students were providing. i wrote about this, around the same time, in the first article on entrepreneurial law clinics from the uk to be published in the journal of legal education.66 63 david collins, eric klotz and ben robinson, 'start-ed: a model for commercial clinical legal education' (2016) 23 international journal of clinical legal education 80. 64 ibid. 65 ibid. 66 campbell (n 51). reviewed article 25 the second commercial law clinics roundtable took place at the university of sheffield in 2017. a detailed account of the event appeared in the from the field section of the ijcle.67 alongside this, the new ground was broken when three entrepreneurial law clinics – from the us, israel, and the uk – produced comparative analysis of their respective schemes, arguing that entrepreneurial law clinics should be valued for their rich educational experience, the important assistance they provided, and the wider benefits they bestowed on teaching institutions.68 5. entrepreneurial law clinics in the uk today research into entrepreneurial law clinics has continued to flourish. i was particularly excited to see the recent publication of a multi-authored practice report on a prisonbased business law and tax clinic.69 when the authors wrote the report, the clinic was still in the midst of developing its ‘shape, structure, and delivery method’,70 not least due to the challenges of the global pandemic. however, the ability to read about the design, the key learnings, and the potential future direction of this innovative clinic will be a buoy to many of us in the entrepreneurial law clinic world. when i started out as a clinician, we might have learned about the clinic via a 67 victoria roper, 'round up of the 2nd commercial law clinics round table 9th march 2018' (2018) 25 international journal of clinical legal education 248. 68 roper (n 5). 69 helen codd and others, ''the best of times and the worst of times': reflections on developing a prison-based business law and tax clinic in the midst of a global pandemic' (2020) 27 international journal of clinical legal education 39. 70 ibid 59. international journal of clinical legal education state of the nation 26 conference paper, or in general discussions. to see it represented in published works and part of the literature denotes another shift in the development of entrepreneurial law clinic research. alongside case study research into specific entrepreneurial law clinics, we have also seen an influx of philosophical takes on the role of entrepreneurial law clinics, primarily led by omar madhloom.71 madhloom’s work explores the theoretical foundations for a social justice–centric global law clinic movement with a particular focus on kantian moral philosophy.72 this has led to emerging fields of play with a focus on theory.73 frustratingly, however, information about entrepreneurial law clinics in the uk today is mainly discoverable via google searches and law school websites. whilst i have obtained a reasonable amount of data using those search strategies, i acknowledge i have been unable to capture all the clinics in existence today. how do i know this? 71 omar madhloom, 'a normative approach to developing reflective legal practitioners: kant and clinical legal education' (2019) 53 the law teacher 416; omar madhloom, 'a kantian moral cosmopolitan approach to teaching professional legal ethics' (2022) 23 german law journal 1139; omar madhloom, 'philosophy in action through clinical legal pedagogy', northumbria university 2022); omar madhloom and irene antonopoulos, 'clinical legal education and human rights values: a universal pro forma for law clinics' (2022) 9 asian journal of legal education 23. 72 ibid. 73 this includes a multi-disciplinary online workshop, hosted by the university of bristol and in association with the clinical legal education organisation, in january 2022 which brought together a panel of academics and practitioners to discuss business law clinics from educational and employability perspectives. the workshop framed an interdisciplinary and multidisciplinary approach to business law clinics in the context of clinical legal education and pro bono/corporate social responsibility. i was member of the panel. questions raised and debated included: is there a moral obligation to engage in pro bono? do law clinics have a moral obligation to advise business entities? what are the pedagogic benefits of business clinics? reviewed article 27 because my own clinic did not appear in the google searches i conducted. i only know my clinic exists because i’ve been running it for 11 years. this is where the problem lies – most of our knowledge is anecdotal. we lack detailed long-standing and up to date published research.74 with this disclaimer in mind, however, i will attempt to provide a general update on the scope and nature of a range of entrepreneurial law clinics presently running in the uk. qlegal is a particular success story. high-calibre postgraduates still provide free support to start-ups and entrepreneurs on a voluntary basis as they did when my students partnered with the project in 2015.75 however, there is now also an option for students to provide advice to clients as part of a credit-bearing module, the entrepreneurship law clinic.76 in addition, qlegal runs an externship work placement programme with start-ups and scale-ups.77 students spend time in start-ups gaining first-hand experience in legal and technological services whilst receiving training on law and business from the qlegal team.78 small groups of students also work on discrete projects for businesses and offer one-to-one coaching sessions to secondary school pupils from uk state schools.79 74 i am conscious that we are missing data from wales, scotland and northern ireland especially. 75 queen mary university of london (n 46). 76 queen mary university of london, ‘qlegal – about us’ <https://www.qmul.ac.uk/qlegal/about/> accessed 1 october 2022. 77 lawtech, ai, and compliance and regulatory sectors. 78 queen mary university of london (n 76). 79 ibid. https://www.qmul.ac.uk/qlegal/about/ international journal of clinical legal education state of the nation 28 according to their website, start-ed at city, university of london also continues to provide free one-to-one advice from professional advisors and experienced entrepreneurs. student volunteers sit in the advice sessions.80 several entrepreneurial law clinics operate in this way, with law students being supported by qualified lawyers. at the bpp legal advice centre for enterprise (blac enterprise) students conduct a fact-finding interview and a detailed letter of advice is created under supervision.81 the small business legal clinic at the university of york is staffed voluntarily by masters students, supported by supervising solicitors at the university and law firm ward hadaway.82 student advisors at king’s college london’s intellectual property law clinic are supervised by specialist lawyers from law firms briffa and bird & bird as well as the clinic’s own staff.83 manchester metropolitan university’s business law café offers free support to social enterprises, start-ups, charities, entrepreneurs and small businesses delivered by law students under the supervision of lawyers giving their time pro bono.84 80 city, university of london (n 49). 81 bpp university law school, ‘i have a legal query about my business’ <https://probono.bppuniversity.ac.uk/blog/projects/business-legal-advice/> accessed 1 october 2022. 82 university of york, ‘small business clinic’ <https://www.york.ac.uk/law/the-baroness-hale-legalclinic/small-business-clinic/> accessed 1 october 2022. 83 king’s college london, ‘intellectual property clinic’ <https://www.kcl.ac.uk/legal-clinic/how-we-canhelp/intellectual-property> accessed 1 october 2022. enquirers receive an appointment with the clinic and a one-off letter of advice. 84 manchester metropolitan university, ‘pro bono’ <https://www.mmu.ac.uk/law/study/school-life/probono/> accessed 1 october 2022. there is one clinic per term. https://www.york.ac.uk/law/the-baroness-hale-legal-clinic/small-business-clinic/ https://www.york.ac.uk/law/the-baroness-hale-legal-clinic/small-business-clinic/ https://www.kcl.ac.uk/legal-clinic/how-we-can-help/intellectual-property https://www.kcl.ac.uk/legal-clinic/how-we-can-help/intellectual-property https://www.mmu.ac.uk/law/study/school-life/pro-bono/ https://www.mmu.ac.uk/law/study/school-life/pro-bono/ reviewed article 29 typically, entrepreneurial law clinics in the uk offer legal advice on issues such as incorporation, checking company and trade mark registers, copyright advice, and practical support around running a business generally.85 however, some clinics do undertake a diverse (and complex) range of business issues. for example, the legal advice clinic at university of law, london, offers legal advice on ‘contract terms, privacy, shareholder entitlement, data protection, setting up a company, restructuring, general intellectual property issues, trade mark and registered designs, general patent queries, partnership agreements and general partnership matters, shareholder agreements and minority shareholder matters, copyright, directors’ duties, termination or disqualification’.86 supervised student advisors at commlaw at the university of sheffield are also able to offer advice on underrepresented areas such as product labelling regulations, disclaimers, and employment, contractor, and partnership issues.87 interestingly, some clinics have adopted payment-based models. at university of central lancashire business law clinic, graduate legal advisers work under the close supervision of qualified solicitors.88 there is an administration fee of £50 plus vat 85 bpp university law school (n 81). 86 the university of law, ‘legal advice’ <https://www.law.ac.uk/landing/ullac-london-enquiry-form/> accessed 1 october 2022. in this case, a group of students observe and assist a volunteer lawyer. verbal advice is provided. 87 university of sheffield, ‘commlaw legal clinic’ <https://www.sheffield.ac.uk/law/undergraduate/probono/commlaw-legal-clinic> accessed 1 october 2022. 88 university of central lancashire, ‘business law clinic’ <https://onlineshop.uclan.ac.uk/productcatalogue/law-school-and-social-sciences/business-law-clinic> accessed 1 october 2022. the online store where clients pay their first appointment fee notes that the business law clinic is operated by https://www.law.ac.uk/landing/ullac-london-enquiry-form/ https://onlineshop.uclan.ac.uk/product-catalogue/law-school-and-social-sciences/business-law-clinic https://onlineshop.uclan.ac.uk/product-catalogue/law-school-and-social-sciences/business-law-clinic international journal of clinical legal education state of the nation 30 which must be paid via a webpage before the initial meeting.89 there is no charge for the advice offered, however. the business and enterprise law service provided by nls legal at nottingham trent university does charge.90 it offers low-cost legal assistance on a range of business issues across the life cycle of a business from inception to post-insolvency, with particular focus on dispute resolution and litigation.91 all work is undertaken by a team of law student volunteers, legal assistants and paralegals under the supervision of a business and enterprise law service solicitor.92 perhaps this is the best example we have as to how far the entrepreneurial law clinic landscape has travelled in the past decade. our clinic at northumbria law school has experienced change too. the student law office module moved into the third year of the degree programme in 2020. the clinic graduate legal advisors who have completed a law or other qualifying law degree and are now in the first stage of training to qualify as a solicitor. 89 ibid. 90 nottingham trent university, ‘our services’ < https://www.ntu.ac.uk/study-and-courses/academicschools/nottingham-law-school/nls-legal/our-services > accessed 18 april 2023. 91 nls legal’s fee information can be found here: <https://www.ntu.ac.uk/__data/assets/pdf_file/0024/1480380/fees-information.pdf> accessed 1 october 2022. 92 nottingham trent university (n 90). https://www.ntu.ac.uk/study-and-courses/academic-schools/nottingham-law-school/nls-legal/our-services https://www.ntu.ac.uk/study-and-courses/academic-schools/nottingham-law-school/nls-legal/our-services https://www.ntu.ac.uk/__data/assets/pdf_file/0024/1480380/fees-information.pdf reviewed article 31 has grown in size,93 diversity of legal cases94, and type of advice provided.95 in the 2022/2023 academic year, we have two live client business and commercial firms. each firm consists of one supervisor (who is an academic with practice experience) and eight students. our numbers are currently smaller this year due to a mix of personal and professional changes.96 as the years have passed, i have adjusted my student law office teaching. when i started, i took on a higher volume of cases. i would split the cases between pairs of students, even if the case had multiple components. i soon discovered this was unsustainable for me and for the students. today, i still ask the students to work in pairs initially, but i am more inclined to extend this to a trio or a quad especially if a case involves several elements. i divide the issues between several students rather than leaving the entire case to two. i also act with caution when looking at new enquiries, thinking carefully about the extent to which we can provide advice. experience has given me greater confidence in my decisions. in the early days, i 93 in the 2022-2023 academic year, the clinic has 24 supervisors. supervisors have 1 or 2 firms, which typically comprise 8 students. there are 267 students. in 2021-2022, there were 297 students working in the student law office. 94 legal areas include housing, civil litigation, family, wills, employment, crime, welfare benefits, and business. 95 the student law office has a flourishing policy clinic: see rachel dunn, lyndsey bengtsson, and siobhan mcconnell, ‘the policy clinic at northumbria university: influencing policy/law reform as an effective educational tool for students’ (2020) 27 international journal of clinical legal education 68. 96 for example, in january 2022 i become programme leader for the professional doctorate in law programme and in september 2022 i moved to part-time hours. back in 2011, i was working full-time and exclusively in the student law office – allowing for three firms. this year, the reduction in my working hours and increase in my other responsibilities only allows for one firm. international journal of clinical legal education state of the nation 32 would feel (self-imposed) pressure to answer every enquiry and/or provide the students with considerable legal experience during their year-long module. today i find it easier to take pause and consider the long-term implications of my supervisory choices. for example, i used to supervise the drafting of complex terms and conditions. over time, i realised that this was far too complicated for the students. the client would often be waiting several months for a first draft, and i would find myself drafting the terms late into the evening in order to maintain good client care. the students did not have the opportunity to engage meaningfully in the advice and i become overloaded. now, i make it clear in our marketing materials that my students can only advise on or draft simpler contracts such as a website terms of use. i have found that this has led to a greater level of interaction between my students and the client, and a better work-life balance for me and my students. i emphasise quality of the work produced over the quantity of cases taken on, whilst still ensuring i provide a pedagogically rich clinical environment and an appropriate and reasonable amount of legal experience for my student. 6. the future as uk entrepreneurial law clinics expand in number and approach, we must take inspiration from our us clinical colleagues and continue to develop our growing body of research. there is an opportunity to explore trends, analyse pedagogical reviewed article 33 innovations, and provide a comprehensive assessment of uk entrepreneurial law clinics. i make this plea to myself as well as to our wider network. i am conscious that this article has only scratched the surface of the models of entrepreneurial law clinic in existence in the uk today. there is scope for a long-term substantive piece of research mapping uk law schools’ approaches to business advice. this special edition is an important part of this work. let’s look back in another 10 years’ time and see how far we have come. the evolution of legal education in the united states and the united kingdom: how one system became more facultyoriented while the other became more consumeroriented. a story of british military failure, jacksonian democracy, elitism, snobbism, thatcherism, bigotry, political intrigue, the great depression, world war ii, and, most of all, the germans. roy stuckey* the evolution of legal education in the united states and the united kingdom: how one system became more faculty-oriented while the other became more consumer-oriented. 101 * professor of law, university of south carolina school of law, usa. a draft of this article was presented at the conference on clinical legal education sponsored by the international journal of clinical legal education in edinburgh, scotland, on july 14–15, 2004. i appreciate the encouragement of the journal’s staff, especially its editor, philip plowden. i owe thanks to paul maharg and nigel duncan for referring me to helpful resources in the united kingdom. my research assistant camey everhart provided diligent and thoughtful support in preparing the article. by agreement with the journal, i am retaining the right to publish this article, or variations of it, in jurisdictions outside the united kingdom. introduction ...............................................................................................................................2 part i: the process for becoming a lawyer in the united kingdom and the united states...........3 the undergraduate stage .................................................................................................4 the postgraduate stage ....................................................................................................6 the supervised practice stage ..........................................................................................7 part ii: histories of legal education in the united kingdom and the united states....................8 section 1: common roots ...............................................................................................8 section 2: the traditions diverge ..................................................................................24 the case method makes its appearance ..................................................................24 the struggles over regulating legal education and admission to the profession .....34 the modern era of legal education in the united states .........................................45 the modern era of legal education in the united kingdom ....................................53 part iii: new initiatives in the united kingdom and the united states ......................................60 new initiatives in the united kingdom ..........................................................................60 new initiatives in the united states................................................................................62 conclusion ...............................................................................................................................66 introduction who benefits from legal education? in most british commonwealth countries, law schools could reasonably claim that the beneficiaries of their services are their students and, to some extent, the legal profession. a law school education provides a basis for learning to be a lawyer, but the profession is responsible for preparing law graduates for practice. even the vocational programs run by organizations of practicing lawyers do not shoulder the full responsibility for practice preparation because no law graduate is allowed to practice law without serving a period of time working under the supervision of an experienced lawyer. as a general matter, the public has reason to believe that new lawyers are adequately prepared to provide legal services. in the united states, law schools bear the entire burden of preparing students for practice, therefore, they should be striving to serve the interests of their students, their students’ future employers, their students’ future clients, and the public in general. in short, everybody who may be affected by the work of lawyers. unfortunately, the educational goals and methods of most law schools in the united states are not designed to prepare students for practice, other than with large firms or governmental agencies that have the resources to complete their education and training. consequently, newly admitted lawyers in the united states are ill-prepared to represent common people who have common legal problems. although law schools in the united states are not adequately meeting the needs of their students or most other constituencies, the members of law faculties are quite happy with the structure of legal education. it serves their personal needs quite well. from common roots, the united states and the united kingdom developed very different systems for preparing lawyers for practice. around the time when we took different paths in the late 1800s, 102 journal of clinical legal education december 2004 james bryce wrote, “i do not know if there is anything in which america has advanced more beyond the mother country than in the provision she makes for legal education.”1 if bryce’s evaluation was ever valid, he would likely change his opinion today. this paper explores how our approaches to preparing lawyers for practice became so different. it traces the evolution of the systems for preparing lawyers for practice in the united kingdom and the united states, and it examines the relative merits of our current situations. part i describes the key differences in our systems. part ii recounts major events in the histories of legal education in the united states and the united kingdom. part iii describes new initiatives in the united kingdom and the united states that may improve legal education. part i: the processes for becoming a lawyer in the united kingdom and the united states2 this section highlights the most dramatic differences between the processes for educating and training lawyers in the u.k. and the u.s. the descriptions are purposefully oversimplified to avoid burying the reader in details.3 the undergraduate stage in the united kingdom and the united states, a prospective lawyer begins the process of becoming a lawyer around the age of eighteen years by entering college and receiving a degree three or four the evolution of legal education in the united states and the united kingdom: how one system became more faculty-oriented while the other became more consumer-oriented. 103 1 james bryce, the american commonwealth, vol. ii, 503 (2nd ed. mcmillan & co. 1891). 2 rather than including repetitive, lengthy citations, i am listing here my primary sources for the information in this section. my source of information about the education of united states lawyers is my personal knowledge acquired during thirty years of law teaching and accreditation work. for english and welsh solicitors: nigel duncan, gatekeepers training hurdlers: the training and accreditation of lawyers in england and wales, 20 ga. st. u. l.. rev. 911 (2004); nigel savage, the system in england and wales, 43 s. tex. l. rev. 597 (2002); the website of the law society of england and wales, qualifying as a solicitor, http://lawsoc.org.uk/dcs/ (last visited june, 2004). for scottish solicitors: paul maharg, professional legal education in scotland, 20 ga. st. u. l.. rev. 947 (2004); the website of the law society of scotland, how to become a scottish solicitor, http://www.lawscot.org.uk/edu_train/new_howtobec ome.html (last visited june, 2004). for irish and northern irish solicitors: paul a. o’connor, legal education in ireland, 80 mich. b. j. 78 (2001); the website of the institute of professional legal education at queens university belfast, www.qub.ac.uk/ipls/about us.htm; the website of the law society of ireland, www.lawsociety.ie. for english barristers: nigel duncan, gatekeepers training hurdlers: the training and accreditation of lawyers in england and wales, 20 ga. st. u. l.. rev. 911 (2004); nigel savage, the system in england and wales, 43 s. tex. l. rev. 597 (2002); the website of the general council of the bar, legal education, http://www.legaleducation.org.uk/ (last visited june, 2004). for scottish advocates: paul maharg, professional legal education in scotland, 20 ga. st. u. l.. rev. 947 (2004); the website of the faculty of advocates, entrance requirements and education and training http://www.advocates.org.uk/web/t&ed.htm (last visited june, 2004). for irish and northern irish barristers: paul a. o’connor, legal education in ireland, 80 mich. b. j. 78 (2001); the website of the institute of professional legal education at queens university belfast, www.qub.ac.uk/ipls/about us.hem; the website of the bar council for ireland, www://barcouncil.ie. slightly less current sources: alexander j. black, separated by a common law: american and scottish legal education, 4 ind. int’l & comp. l. rev. 15 (1993); sandra r. klein, legal education in the united states and england: a comparative analysis, 13 loy. l.a. int’l & comp. l. j. 601 (1991); paul a. o’connor, legal education in ireland, 80 mich. b. j. 78 (2001); clive walker, legal education in england and wales, 72 or. l. rev. 943 (1993). 3 despite my intentional oversimplification, i am concerned about clarity and accuracy. the materials i used were sometimes incomplete or vague about details. therefore, i invite you to let me know where i have failed to present this information clearly and accurately. my email address is: roy@law.law.sc.edu.us. years later.4 in the united states, there is no prescribed college course of study. a prospective u.s. lawyer can spend his or her college years studying any subject that leads to a degree including, for example, physical education, forestry, or culinary arts. there has never been a serious effort to mandate a prelaw course of study for undergraduate students in the united states. a mandatory prelaw program would be difficult to impose because each of the fifty states sets its own bar admission rules and different states would be likely to enact different prelaw requirements. therefore, students who attended college in one state might have difficulty qualifying for admission to law school in another state. the issue of prelaw requirements has come up from time to time in the united states. in 1909, a committee of the association of american law schools (aals) concluded that the aals should not prescribe certain courses or extra curricular activities for prospective law students most importantly, according to the committee, because “any attempt to prescribe a single course of preparatory work would be invalidated by the fact that the quality of instruction necessarily varies among subject matter areas and among schools.”5 alfred reed argued in 1921 that law students should have a general liberal education before law school, even if it is not a necessary pre-requisite for them to succeed in law school. he rather eloquently explained his preference: [t]he late war [world war i] has fortified in this country the english tradition that education which conduces in no way, that human calculation can foresee, to the efficient discharge of our particular duties, whether as citizens or as individuals, may nevertheless have a value of its own, by widening our sympathies, teaching us toleration of another’s point of view, freeing us from the temptation to subordinate humanitarian impulses to the demands of ruthless logic.”6 reed blamed the absence of a general education requirement first on lawyers who “have not realized how much american law has suffered from losing contact with education as a whole” and secondly on “advocates of general education, who have not stated the argument for it as effectively as they might.”7 in the late 1940’s, the aals issued a statement that the “education of students for a full life is far more important than mere education for later professional training and practice.”8 in 1950 a report on prelaw education following an expansive survey “showed marked agreement against any required courses for prelegal education.”9 a 1972 carnegie foundation report10 endorsed the value of law students having a general education, but it stopped short of suggesting that a particular course of study be mandated. “a basic ability to read, write, and speak the english 104 journal of clinical legal education december 2004 4 in the united states, the norm is four years. in england, the ll.b. is awarded in three years. in scotland students can obtain an ordinary degree in three years and an honours degree in four years. 5 susan k. boyd, the aba’s first section: assuring a qualified bar 60–61 (aba 1993), quoting samuel thurman, “to what extent should pre-law education be prescribed?,” a speech before a joint session of the aba section of legal education and admissions to the bar and the national conference of bar examiners (ncbe), august 25, 1959. 6 alfred z. reed, training for the public profession of the law: 1921, in herbert l. packer and thomas ehrlich, new directions in legal education 163, 188–189 (kate wallach, ed. mcgraw-hill 1972). 7 id. at 188. 8 boyd, supra note 5, at 60–61. 9 id. at 57–58. 10 herbert l. packer and thomas ehrlich, new directions in legal education 78 (mcgraw-hill 1972). language is, we think, the principal preparation that law students require. francis bacon was right about the qualities that attend these activities. we additionally recommend some study of economics (which is the social science most directly applicable to law), history (for its liberating perspective), and a “hard” science (for its example of how scientific knowledge is pursued).”11 in the united kingdom, most college students who want to become lawyers major in law and receive an ll.b. degree which is recognized as a qualifying law degree if the content of the program of study was approved by the relevant solicitors’ and barrister/advocates’ organizations.12 the approved “core” subjects deal with basic substantive law topics.13 the post graduate stage after college, prospective lawyers in the united kingdom must decide whether to pursue careers as general lawyers (“solicitors”) or as trial specialists (“barristers” in england and ireland and “advocates” in scotland). the great majority choose to become solicitors. law school graduates who want to become solicitors or barristers/advocates are required to attend vocational courses that last about a year.14 though some of these courses are offered at law schools, they are controlled by the professional organizations and much of the instruction comes from practicing lawyers. the vocational courses include substantive law and practice skills components, and they are increasingly linking instruction to the competencies that lawyers need at the point of admission. at the time when lawyers in the united kingdom are entering the vocational phase of their legal education, a college graduate who wants to become a lawyer in the united states is entering law school. u.s. law students earn law degrees (j.d.) after three years full-time or four years part-time. almost all u.s. law graduates enter the legal profession whereas fewer than half of u.k. law school graduates become practicing lawyers. most u.s. law schools are accredited by the american bar association, but the accreditation the evolution of legal education in the united states and the united kingdom: how one system became more faculty-oriented while the other became more consumer-oriented. 105 11 id. 12 a significant percentage of new lawyers major in disciplines other than law. in order to qualify for the vocational stage, they must take additional undergraduate courses. in england, students with degrees in other disciplines can take a year long course, the post graduate diploma, leading to the common professional entrance. in scotland, students with other degrees can obtain an ordinary degree in two years instead of three. it is also possible to become a lawyer without attending college at all, if one can pass the common professional exam, but this has become a less frequent path. 13 in england, the “foundations of legal education” include seven substantive courses in addition to legal research: criminal law, equity and trusts, law of the european union, obligations i (contract); obligations ii (tort), property law, and public law. in ireland, there are eight core courses similar to those in england, except they include company law and replace public law with constitutional law. in scotland, there are eight “qualifying subjects”: public law and the legal system, scots private law, scots criminal law, scots commercial law, conveyancing, evidence, taxation, and european community law. 14 in england prospective solicitors take the year long legal practice course; scottish law graduates who want to become solicitors or advocates take a similar 27 week course, the diploma in legal practice; prospective solicitors and barristers in northern ireland attend a year long course leading to the award of the certificate in professional legal studies. prospective barristers in england must first be accepted into an inn of court, then take a year long bar vocational course run by the general council of the bar. to become a barrister in ireland, a student must take a year long course at the king’s inns to receive the degree of barrister-at-law. things are somewhat different for prospective solicitors in ireland who begin the process by taking the first irish examination, a written and oral examination in the irish language administered by the law society of ireland. they must also pass the final examination to earn a diploma in legal studies. students spend varying periods of time preparing for the final examination, for example, the dublin school of law offers a ten week course to prepare students for the examination and the dublin institute of technology offers a one year course. passage of the final examination qualifies a student to begin a two year period of apprenticeship. standards do not mandate very much of the content of legal studies. however, the curriculums of most u.s. law schools are very similar and tend to focus on teaching substantive law. all students receive training in legal analysis and research but, although a wide range of professional skills courses are offered by most law schools, few schools provide broad-based skills instruction to all students. very few u.s. law schools have outcomes-focused programs of instruction, whereas all stages of legal education in the u.k. are becoming increasingly outcomes-focused. the supervised practice stage after finishing the vocational course, solicitors in the united kingdom enter into learning contracts with approved solicitors for two year traineeships during which they have additional course work.15 even after completing articles, english solicitors must begin practice as assistant solicitors because they are not allowed to establish their own practices until three years after completing their formal training. after finishing the bar vocational course, prospective barristers in england work under the supervision of experienced barristers for one year (“pupillage”) during which they take three training courses. they shadow their pupil masters for six months then, with their master’s permission and supervision, they can provide legal services and exercise a right of audience. they also “keep terms” which involves eating and socializing at their inn’s dining hall. in ireland, students must serve one year as a pupil. in northern ireland, once they are admitted by the honorable society of the inn of court of northern ireland, prospective barristers receive two years of education and training administered by the society to earn a barrister-at-law degree. after the diploma in practice course, prospective scottish advocates who are accepted as intrants by the faculty of advocates begin working for lawyers. they also take a seven week foundations course in advocacy skills training and receive additional specialist education in the supplementary course. a prospective advocate must serve a period of “deviling,” first for twenty-one months in a solicitor’s office then nine more months with a member of the bar. in the united states, a law school graduate who passes a state’s written bar examination becomes fully authorized to practice law in that state without supervision, including trial practice in all courts. no supervised practice is required, except in two states.16 admission to practice and 106 journal of clinical legal education december 2004 15 while “serving articles”, solicitors in england take a 72 hour professional skills course. in ireland they attend professional course i and professional course ii and must pass the second irish examination. in scotland, they take a two week professional competence course. scottish solicitors return briefly to the law society to complete the professional course after finishing articles. 16 delaware and vermont are the only u.s. jurisdictions that require apprenticeships today. the supreme court of delaware requires newly admitted lawyers to serve “a clerkship in the state of delaware aggregating substantially full-time service for at least 5 months duration.” delaware sup. ct. rule 52 (a)(8). see also memorandum dated june 2, 2004, from the chair of the board of bar examiners to all preceptors describing “preceptor duties and clerkship requirements” (copy on file with the author), and rule 9, duty to obtain preceptor, and rule 10, qualifications and duties of preceptors, rules of the board of bar examiners of the delaware supreme court at http://courts.state.de.ud/bbe (accessed august 9, 2004). during the clerkship, the clerk must complete 30 specified activities, such as attending a variety of judicial and administrative proceedings and completing a title search under supervision. the supervising “preceptor” can be a judge or a lawyer with at least ten years of practice experience and must attend a preceptor training program. at the end of the clerkship, the preceptor must certify that the clerk has complied with the rule, but the preceptor is not required to certify that the clerk is adequately prepared for law practice. the supreme court of vermont requires law school graduates to pursue the study of law in the office of a judge or practicing lawyer with at least three years experience for a period of six months, sometime after the first year of law school and within two years of passing the bar examination. vermont r. admis. § 6(i). discipline is governed by the highest court of each state. there is virtually no oversight of legal education or law practice by the federal government. thus, it takes roughly seven years to become licensed to practice law in the united states and the united kingdom, but in the united states only three of those years are spent studying law and learning how to be a lawyer. part ii: histories of legal education in the united kingdom and the united states section 1: common roots legal education in the united states is directly linked to the long tradition of legal education in the british isles. when the american colonies were established, english law, professional customs, and lawyers were part of the package. for example, when the puritans arrived in massachusetts on june 12, 1630, “[a]mong the 1,005 settlers aboard the flotilla of 17 tiny ships were ten legally trained puritans, products of the inns of court and english legal practice. john winthrop, himself, the first governor, was a member of gray’s inn and inner temple.”17 professional lawyers were recognized in england as early as 1187, and by 1292 the royal courts in england were training lawyers for trial practice. these lawyers became known as “barristers,” because they could plead at the “bar” of the court, although the word “barrister” did not appear until 1455.18 irishmen went to london to study law at least as far back as the 13th century.19 by 1488 in scotland there was a well-established class of professional lawyers referred to as “advocates,” “procurators,” or “forespeakers.”20 in early modern england, there was a wide variety of titles associated with jobs involving legal and quasi-legal work, and legal practice was by no means restricted to those who held some recognised professional qualification.21 the lawyers who would eventually become known as “barristers” and “solicitors”22 were separated as much by social origins and status as by job function until the mid-1600’s. the “barrister” class reflected a social aristocracy, while solicitors became a symbol of middle class achievement. “younger sons disinherited by primogeniture needed a way to make a living, but trade was beneath them. the ‘honorable’ professions were three: the church, the army, and the bar, to which was later added colonial governance.”23 “[c]ivilian advocates and the evolution of legal education in the united states and the united kingdom: how one system became more faculty-oriented while the other became more consumer-oriented. 107 17 daniel r. coquillette, the anglo-american legal heritage 368 (carolina academic press 1999). in fact, another lawyer was already in massachusetts when the puritans arrived, the notorious thomas morton who claimed to be a “gentleman of cliffords inn,” an inn of chancery. “[w]hat he did in the new world was to trade guns and liquor to the indians [sic] for furs and sex. he even had erected a maypole on merry mount, and had huge, drunken parties. . . . the puritans sent morton back to england.” id. 18 id. at 266. 19 colum kenny, king’s inns and the kingdom of ireland 1 (irish academic press 1992). 20 david m. walker, a legal history of scotland. volume iii: the sixteenth century 381 (t. & t. clark 1995). 21 wilfred prest, ed., the professions in early modern england 64–67 (croom helm 1987). 22 it was not until about 1800 that legal practitioners in england began abandoning the title “attorney” and exclusively using “solicitor”. david sugarman, bourgeois collectivism, professional power and the boundaries of the state. the private and public life of the law society, 1825 to 1914, 3 int’l. j. leg. prof. 81, 91–92 (march 1996). 23 walker, supra note 20, at 381. common-law barristers claimed and were accorded the courtesy title of esquire, whereas the attorney, proctor, or solicitor was at best a mere ‘gent.’”24 these class distinctions persist to some degree today. in the mid-1600s, the vocational distinctions between barristers and solicitors became more clearly defined. over a period of time, the barristers relinquished general counseling and conveyancing to concentrate on trial advocacy, leaving the management of clients’ day to day affairs to attorneys.25 the solicitors came to dominate the provision of legal services at the grass roots by setting up practices in the provinces, especially the cities and market towns, whereas the barristers tended to cluster in and around london where the courts were located.26 a significant factor in the barristers’ decision to concentrate on trial advocacy was the huge inflation of fees for trial work from the 1650s onward at a time when the general consumer price level remained virtually stagnant.27 in short, they did it for money. from that time forward, no client could employ a barrister directly, but only through a solicitor. this ‘bifurcated’ legal profession, split between barristers and solicitors, still exists in the united kingdom and other commonwealth countries.28 the education and training of barristers and solicitors was another source of differentiation. the typical solicitor did not a have college degree or any other formal legal training because there was a consensus for centuries that solicitors’ mechanical vocational skills could be gained best from practical experience as apprentices rather than book learning.29 on the other hand, the barristers cultivated their professional image as elevated, intellectual, and even non-mercenary.30 the barristers established an early tradition of formal training at the inns of court which were located between the law courts at westminster and the commercial districts of the city proper.31 the inns of court were centers of legal education that combined the characteristics of a powerful trade guild with that of a university. all common law barristers and judges were graduates and members of an inn.32 while the early history of the inns is somewhat murky, it is clear that by 1400, four “inns” were establishing a dominant position. two were named from nobles who either owned or sponsored the original houses: “gray’s inn”, a house of the lords grey, and “lincoln’s inn,” which either was named for henry de lacy, earl of lincoln, or thomas de lincoln, a prominent serjeant at law.33 two others were founded in the defunct london premises of the powerful knights templar, and became known as “middle temple” and “inner temple.” by 1450, these four “inns” were professional schools, with the exclusive right to train common law barristers and serjeants, and the inns of chancery – of which there were nine or more – became “feeders,” or schools for young students who wished to enter one of the four inns of court. finally, for the very elite who became serjeants, there were two “serjeant’s inns,” although these were more like small clubs than educational institutions. over time, the inns of chancery diminished and disappeared, and the serjeant’s inns died with that 108 journal of clinical legal education december 2004 24 prest, supra note 21, at 67. 25 id. at 81. 26 id. at 81–82. 27 id. at 82. 28 coquillette, supra note 17, at 267. 29 prest, supra note 21, at 67. 30 id. at 32. 31 coquillette, supra note 17, at 268. 32 id. 33 author’s note: “serjeants at law” were an older class above the barristers. they not only represented private clients, but took on royal commissions as assize judges when there was a shortage of judicial labor. until the sixteenth century, serjeants at law were the exclusive source of new royal judges. id. at 267. order at the end of the 19th century. the fours inns of court, however, not only remain, but are among the wealthiest and most powerful institutions in london. although they have now coordinated their educational and regulatory functions into the consolidated inns of court, they are still four separate entities, with magnificent libraries, gardens, dining halls, and common rooms. three . . . also house the “chambers,” or offices, of most practicing london barristers.34 in the sixteenth century, a prospective barrister of fifteen years of age or less would either go directly into an inn of chancery or spend a few years at oxford or cambridge before enrolling. two or three years later, the student would enter one of the four inns of court. after four years, “the student would be admitted as an ‘utter barrister,’ and by six or seven years, at about age twenty-two or twenty-three, could be ‘called to the bar.’”35 the faculty were practicing barristers who were graduates of the inns. providing instruction was seen as a duty of barristers who wished to become judges. students at the inns were required to participate in “moots”, public speaking exercises, and “bolts,” private speaking exercises. “these combined learning by rote and ‘learning by doing,’ under close personal supervision. the moots and bolts encouraged ‘thinking on your feet’ and the kind of quick ingenuity that was the essence of the pleader’s skill.”36 from their beginnings through today, the inns have been compulsory societies where students, faculty, and other members are required to dine and socialize together.37 through such interactions, the inns of court aim to build a sense of professional identity and value. in the early history of the inns, barristers and solicitors shared the socialization functions of the inns of court, though only barristers enjoyed the opportunity of a formal education at the inns.38 in the mid-sixteenth century, however, the judges and benchers who controlled the inns of court began expelling practicing attorneys and solicitors from the inns and prohibiting barristers from practicing as attorneys or solicitors.39 from that time forward, the inns of court in england have been the exclusive domain of barristers.40 in ireland, the king’s inns provided similar socialization functions, but they did not provide any legal training until 1870. beginning in 1542, young irishmen who wanted to become lawyers were required to spend a period in residence at one of the inns of court in london. this was mandated by a provision in the statute of jeofailles enacted by the irish parliament sitting in limerick. it is not entirely clear what prompted the mandate, since studying in london was already the common practice at the time. most likely, since the statute of jeofailles was enacted six months after a group of lawyers and judges announced that they had formed a king’s inn in dublin, the mandate was intended as a check on the new king’s inn and to reform the education of lawyers in ireland.41 the statute of jeofailles was not repealed until 1885.42 although they did not serve a formal educational function, the king’s inns provided “a meetingplace and a common dining-hall for those whose lives revolved around the work of the courts. sharing the enjoyment of food and wine and engaging in professional gossip have been the most the evolution of legal education in the united states and the united kingdom: how one system became more faculty-oriented while the other became more consumer-oriented. 109 34 coquillette, supra note 17, at 269. 35 id. at 270. 36 id. 37 id. at 269–270. 38 sugarman, supra note 22, at 85. 39 id. 40 the exclusion of solicitors from the inns of court contributed to the organization of the society of gentlemen practisers around 1739 and the creation of the law society in 1825. id. at 88. 41 kenny, supra note 19, at 40–48. 42 id. at 1, 2, 263. enduring features of life at the king’s inns.”43 in contrast to the english inns of court, not only barristers, but also solicitors and judges participated in the king’s inns. when the society of kings’ inns built its library at the inn on constitution hill in dublin and began providing formal education around 1870, the solicitors left to establish their own association.44 there were no inns of court in scotland, nor any other formal educational system. “young lawyers learned by attaching themselves to men in practice, watching how they did it and imitating, but not learning in an organized way.”45 although the university of edinburgh appointed a chair of civil law in 1732,46 “[a]ll the teaching and study of law was however part-time and generally regarded as ancillary to legal practice and apprenticeship. there were moreover no degrees in law, apart from occasional honorary llds, and no curricula leading to graduation.”47 the inns of court began declining gradually sometime in the middle of the sixteenth century, and they stopped functioning as teaching institutions around 1650.48 one important factor was the introduction of printing. students and teachers came to believe that students could now learn everything they needed to learn by reading; lectures were no longer needed.49 another disruptive factor was the english civil war (1642–1648). efforts to reestablish legal education in the inns were hindered by the reluctance of the government to challenge the authority of the bar, although the governing bodies of the inns at the time found their educational and disciplinary duties distasteful.50 thus, the inns “ceased altogether to teach young lawyers, though they retained monopolistic control over admission to the bar.”51 the inns were not to resume educating barristers until the middle of the nineteenth century. blackstone, among others, became convinced that the universities should take over the lapsed educational function of the inns of court.52 roman law was taught at the universities of oxford and cambridge as early as 1149, but the common law of the royal courts was not a subject for university study due to the existence of the inns of court.53 blackstone, the first holder of the vinerian chair at oxford (1758–1766), advocated the merits of a university education for 110 journal of clinical legal education december 2004 43 id. at 3–4. 44 id. at 263. thus, it appears that the king’s inns began offering formal education before the repeal of the statute of jeofailles. 45 david m. walker, a legal history of scotland. volume v: the eighteenth century 374 (t. & t. clark 1999). this is not to say, however, that education was not valued by lawyers in scotland. in 1610, the advocates were charged by the lords to determine the best means of remedying perceived shortcomings in professional behavior, because of which “the name and estimation of advocate had become vile and had lost its former beauty.” the advocates’ remedy was for the lords to refuse to admit anyone to the calling of advocation “except those who after they had passed their course of philosophy had been brought up in some university as students to the laws by the space of two years or thereby and who before their admission should give proof of their qualification.” alternatively, a person could apply to be an advocate who “had been brought up with some old learned lawyers or advocates by the space of seven years.” id. at 381–382. 46 david m. walker, a legal history of scotland. volume iv: the seventeenth century 377 (t. & t. clark 1995). 47 david m. walker, a legal history of scotland. volume vi: the nineteenth century 266 (butterworth’s 2001). 48 w. holdsworth, a history of english law. vol. vi 490 (methuen & co. ltd. 1965). 49 id. at 482–486. 50 id. at 486–490. 51 calvin woodward, the limits of legal realism: an historical perspective, in herbert l. packer and thomas ehrlich, new directions in legal education 329, 349 (mcgraw-hill 1972). 52 sugarman, supra note 22, at 86. 53 coquillette, supra note 16, at 268 . barristers.54 he tried to establish the study of english law as a university subject, but, although his lectures were well-received, he failed to persuade the university of oxford to establish a law school devoted to the study of english law.55 similar efforts to establish legal education as part of the university curriculum at cambridge in 1800 and university college, london in 1826 were also short-lived.56 wealthy americans sent their children to study at the inns of court in london until the american revolutionary war began in 1775.57 unfortunately, the years during which americans from the colonies went to london to study law coincided with the period when the formal educational function of the inns was in decline. one can assume that american students benefitted from the socialization and networking functions of the inns and learned about law and law practice from experienced lawyers, even if they did not receive formal legal education at the inns. by the time the inns returned to strength, students from the united states were no longer interested in studying in london. the most common route to becoming a lawyer in america was to serve a period of apprenticeship with an experienced lawyer followed by a formal examination, the same path followed by solicitors in the united kingdom.58 american lawyers were influenced by the writings of blackstone. the first american edition of his commentaries appeared in 1771. along with coke’s second institutes these were the repository of the law in colonial america.59 “in receiving blackstone, the american legal profession received a vision of legal education that was at once integrated and broadly liberal. either prior to or concurrent with the scientific study of law, the prospective barrister was to acquire a general university education embracing a knowledge of the classics, logic, mathematics, empirical philosophy (‘the law of nature, the best and most authentic foundation of human laws’), and roman law.”60 training for the profession in the united states was initially true to this grand vision. though no university degree was required for admission to the bar, many of those who came to study law were broadly educated, and their law office training was not always limited to technical legal matters. the typical apprentice-trained or self-read lawyer of the earlier nineteenth century had a narrowly technical training out of a few ill-sorted books. but there had been a time when the best legal instruction – under a wythe or a tucker or some learned leader of the bar – recognized that breadth of study was no matter of ornament, but an essential for a professional grasp of the law. the course assigned john quincy adams for his study in the office of theophilus parsons in 1788 embraced robertson’s history of charles v, vattel’s law of nature and nations, gibbon’s rome, and hume’s england; then, closer to the immediacies of the practice, sullivan’s lectures, wright’s tenures, coke on litigation, wood’s institutes, gilbert’s evidence, foster’s and hawkin’s pleas of the crown, bacon’s pleas and pleadings, buller’s nisi prius, and barrington’s observations on the statutes; finally returning to the broad canvas, the institutes of justinian. the titles ring with some quaintness in our ears, but the underlying principle was one with revived efforts of one hundred and fifty years later, to inform the study of law with closer understanding of main currents in the environing society.61 the evolution of legal education in the united states and the united kingdom: how one system became more faculty-oriented while the other became more consumer-oriented. 111 54 william twining, blackstone’s tower: the english law school 1 (stevens and sons/sweet and maxwell 1994). 55 id. 56 id. at 24–25. 57 martha rice martini, marx not madison: the crisis of american legal education 41 (university press of america 1997). 58 robert stevens, legal education in america: from the 1850’s to the 1980’s 1 (university of north carolina press 1983). 59 martini, supra note 57, at 44. 60 james w. hurst, the growth of american law 266 (little, brown 1950). 61 id. the revolutionary war of 1775–1783 severed access by americans to the inns of court. this led to the immediate disappearance in southern states of the separation of the legal profession along the lines of the solicitor-barrister model, though the bifurcated system persisted for some period in the north. thus, the failure of the british military to hold onto the american colonies was the first reason why our systems of legal education diverged. this is also our first opportunity to blame the germans for the system of legal education in the united states, for the british forces in the colonies relied heavily on hessian mercenaries to fight the rebels. the quality of the legal profession in the united states began declining after the revolutionary war with the disappearance of the “priest-like replicas of the english legal profession.”62 the problems became even more pronounced under the influence of jacksonian democracy following the ascendancy of president andrew jackson and the democratic party after the election of 1828. jacksonian democracy alludes to an entire range of democratic reforms that occurred during the late 1820s through the mid 1850s.63 jacksonian democracy’s origins actually “stretch back to the democratic stirrings of the american revolution, the antifederalists of the 1780s and 1790s, and the jeffersonian democratic republicans;” however, more directly it arose out of the “social and economic changes taking place in the early 19th century.”64 in broadest terms the movement attacked various citadels of privilege, “aristocracy”, and monopoly, and sought to broaden opportunities for white males who lacked property.65 for example, prior to 1815 in the united states, in order to vote one had to be a white, male property owner, tax payer, and church member in good standing. by 1828, a growing number of states had reduced the requirements to simply being a white male.66 essentially, jacksonian democracy promoted a social vision in which any white male would have an opportunity to “secure his economic independence, would be free to live as he saw fit, under a system of laws and representative government utterly cleansed of privilege.”67 the jacksonians’ basic policy thrust was to rid government of class biases and dismantle the “top-down, credit driven engines of the market revolution.”68 in the northeast and the old northwest, transportation improvements and immigration led to the collapse of the older yeoman and artisan economy and its subsequent replacement with cash crop agriculture and manufacturing. in the south, the growth of cotton revived a lagging slave economy, and in the west, the seizing of land from native americans and hispanics opened up new areas of white settlement, cultivation... and speculation.69 the targets of the jacksonian movement included the expectation that a person needed some education or supervised experience before practicing a profession, including the legal profession. as one lawyer explained the logic of the times: 112 journal of clinical legal education december 2004 62 stevens, supra note 58, at 10. 63 sean wilentz, jacksonian democracy, in eric foner, ed., the reader’s companion to american history 582–586 (houghton mifflin 1991), available at http://college.hmco.com/history/readerscomp/rcah/htm l/ah_jacksoniande.htm (accessed 8/2/2004). 64 id at 582. 65 encyclopedia – jackson, andrew (jacksonian democracy), the columbia electronic encyclopedia (6th ed., 2004), available at http://www.factmoster.com/ce6/people/a0858962.html. 66 the rise of jacksonian democracy, (accessed 8/2/2004), available at http://www.historybytes.net/webnotes/chp15html; and “msn-encarta-united states (history),” (accessed 8/2/2004), available at http://encarta.msn.com/encyclopedia_1741500823_8 /united_states_(history).html. 67 wilentz, supra note 63, at 584. 68 id. at 583. 69 id. at 582. i am tired of the clamor against lawyers, and of being told that we have exclusive privileges, without being able to reply – you are a lawyer, too, sir. the lawyer and advocate under the roman commonwealth needed no special license to practice his profession. open the door wide to free competition; and integrity, learning and ability, will be a sufficient certificate, and without such certificate, a man will have but a poor practice.”70 in other words, the governing philosophy of the times was to give a man a chance to do anything he wanted then let market forces determine whether he succeeded or failed. as a consequence, for a period of time in the united states anyone could practice law without studying the law, taking a bar examination, or serving an apprenticeship. before continuing, it should be noted that, although there was no institutionalized system of legal education in the united kingdom or the united states for roughly two hundred years, the period “produced some of the most civilized and learned lawyers ever to grace the bar in england and [the united states]. indeed, rather paradoxically, the law’s claim to be a learned profession dates in many ways from the period 1650 to 1850.”71 efforts to improve the quality of the legal professions in the united states and the united kingdom eventually took shape. the law society of england and wales was created in 1825 to distinguish its members from unprofessional elements of the profession and to encourage its members to practice at a high level of competence and character. the law society was created to be a public institution whose members “are to be composed only of the most respectful and leading in the profession (it being intended carefully to exclude all disreputable characters) will serve to impress the public with a higher opinion than it at present entertains of the weight and respectability of the profession at large.”72 the law society’s hall at 113 chancery lane was formally opened in 1832. [t]he hall symbolized the hopes and aspirations of the profession’s elite. it was a significant act of conspicuous consumption, self-definition and social exclusion, testifying to the construction of a new collective identity, designed to attract people of “character” who saw themselves as serious, cultured, learned, responsible and, above all, respectable.73 a royal commission on the universities of scotland was appointed in 1826 and issued its report in 1831. it adopted the principle that “in law, medicine, and divinity professional training should follow a full liberal education, i.e. an arts degree; law should be studied as a `liberal and enlightened science’ rather than be merely a course of practical training.”74 it would be some years later, however, before this principle was fully realized in the training of lawyers in scotland. in ireland, tristam kennedy’s unsuccessful attempt to open a law school in dublin in 1839 stimulated the academic study of english law at universities in britain and ireland and hastened the introduction of qualifying examinations for both branches of the profession. 75 an act passed in england in 1843 reenacted the provisions for service with a practising attorney the evolution of legal education in the united states and the united kingdom: how one system became more faculty-oriented while the other became more consumer-oriented. 113 70 stevens, supra note 58, at 9, n. 70, quoting john b. niles as reported in james j. robinson. admission to the bar as provided for in the indiana constitutional convention of 1850–1851, 1 indiana l. j. 209, 211–212 (1926). 71 woodward, supra note 51, at 350–351. 72 sugarman, supra note 22, at 91 quoting birks, gentlemen of the law 156. 73 id. 74 walker (vol. vi), supra note 47, at 266. 75 colum kenny, tristram kennedy and the revival of irish legal training 1835–1885 10–11 (irish academic press, 1996). or solicitor under articles: “five years – reduced to three years for persons who had taken a degree at oxford, cambridge, london, durham, or dublin, one of which years could be spent with the attorney’s or solicitor’s london agent.”76 all admitted attorneys and solicitors were required to register. “the office of registration was entrusted to the incorporated law society, which was thus enabled to exercise an effectual supervision over every practitioner during the whole of his professional career.”77 the most significant development, however, was the appointment in 1846 of a select committee of the house of commons to “enquire into the state of legal education in england and ireland.”78 the committee issued its report the same year, concluding that “[n]o legal education worthy of the name, is at this moment to be had in either england or ireland.”79 it recommended that “the universities should undertake the teaching of law – roman law and english law and that they should give degrees in the law. the legal training by the universities should be comparative and philosophical in nature.”80 the select committee also recommended that the ultimate preparation of lawyers for practice should be the responsibility of the profession, not the universities. it called on the inns of court “to appoint professors to teach the principal branches of law, and it would be well if they made provision also for the teaching of legal history and jurisprudence. these lectures should be combined with a system of class teaching and with examinations; and no one should be called to the bar unless he had attended lectures and passed the examination. moreover, there should be a preliminary examination to test the general education of an intending student. the inns of court thus acting in combination would form a law college controlled and guided by the benchers and judges.”81 the select committee also called on the incorporated law society to institute an appropriate educational scheme for the professional qualification of solicitors.82 “the governing principle which underlay the recommendations of the committee was a tripartite division of legal education between the inns of court, the incorporated law society, and the universities. the adoption of this principle, and the acceptance of some of the other recommendations of the committee have . . . affected the whole future history of the legal education in this country.”83 the inns of court responded immediately and soon decided to combine forces to establish a system of lectures and examinations. in 1852, the inns of court established the council of legal education.84 before long, the universities accepted their assigned role of giving a more philosophical and theoretical training in legal principles than the inns of court or the law society, and they introduced subjects into their curriculums such as roman law, jurisprudence, international law, legal history, and constitutional law.85 114 journal of clinical legal education december 2004 76 sir william holdsworth, a history of english law. volume xv 224 (methuen & co. ltd. 1965). 77 id., citing h. gibson, centenary address to the law society, 19. 78 id. at 234. 79 twining, supra note 54, at 25, quoting report from the [house of commons] select committee on legal education, no. 686 (1846) b.p.p. vol. x. 80 holdsworth (vol. xv), supra note 76, at 235. 81 id. at 236. 82 id. at 236–237. 83 id. at 237. 84 id. 85 id. at 241. in 1856 in scotland, lawyers were required to “have a general education, evidenced by a university degree or by passing examinations in certain subjects which were the core of a scottish ma, latin, greek, ethical and metaphysical philosophy and logic or mathematics. it was left open whether two modern languages might be substituted for greek. this should be followed by a short university course of legal study, one session on civil law, one on scots law, and during either year or in a third year, another session on civil or scots law or one on conveyancing, and one on medical jurisprudence.”86 from that time on, university education was the norm in scotland.87 in 1862, the university of edinburgh was authorised to offer the degree of ll.b., “open only to graduates in arts and required attendance over three sessions at six courses, three (civil law, scots law and conveyancing) of at least eighty lectures and three (public law, constitutional law and history, and medical jurisprudence) each of at least forty lectures. the degree was to be considered ‘a mark of academical and not of professional distinction . . . .’”88 in 1860 legislation provided that in england and ireland “a person who had served as a clerk to an attorney or solicitor for ten years could be admitted after three years service under articles.”89 other modes of entering the legal profession, other than service under articles, were gradually abolished around the same time.90 “in 1871 another joint committee of the four inns resolved that there should be a compulsory examination for call to the bar. it also rejected a proposal for the joint education of articled clerks to solicitors and students for the bar. . . . this reformed council instituted the system of legal education for the bar which, in its main outlines, still exists.” the law of agents act of 1873 in scotland required uniform sets of three examinations for entry into law practice. these were a preliminary examination in basic knowledge, an intermediate examination of general educational achievement, and a final examination in professional competence. “a graduate of a university, or one who had attended for three full years, was excused from the first two sets. therefore, those who presented themselves for admission as apprentices on the basis of having passed the examinations were those who had not attended a university.”91 thus, by the mid-1870’s, significant efforts had been made to improve the quality of legal education in the united kingdom. legal education was “more marked in academic training than apprenticeship, particularly by developments in the university curriculum, by a more academic faculty, and by national standards of professional competence tested by examination.”92 the general process for becoming a lawyer that exists today was in place, although the details are still being worked out. for most aspiring lawyers, however, full-time formal legal education would not become the primary route into the profession for many years. “as late as 1913–14, when there were 236 law students at glasgow, only thirteen graduated llb and seven bl. the vast majority of students attended only scots law and conveyancing and sat the profession’s examinations.”93 prospective lawyers considered law courses as ancillary to apprenticeship, legal studies were organized part-time, and law courses were too frequently of indifferent quality.94 “the law faculties of the the evolution of legal education in the united states and the united kingdom: how one system became more faculty-oriented while the other became more consumer-oriented. 115 86 walker (vol. vi), supra note 47, at 280. 87 id. at 281. 88 id at 266, citing general report of commissioners under the 1858 act, xxxvi (1863). 89 holdsworth (vol. xv), supra note 76, at 225 . 90 id. 91 law, litigants, and the legal profession 160 (e.w. ives and a.h. manchester, eds., swift printers 1983). 92 id. at 161. 93 walker (vol. vi), supra note 47, at 268–269. 94 id. universities were simply the profession’s training schools.”95 it does not appear that very much changed in legal education in the united kingdom until rapid expansion of enrollment in law schools following world war ii refocused attention on the preparation of lawyers for practice. the story was just the opposite in the united states. unlike countries in the united kingdom, there was no centralized, national body in the united states with the authority to reform or regulate legal education in the 1800s nor, for that matter, is there today. qualification for admission to the bar was, and remains, controlled by the highest judicial authority in each of the fifty states. thus, it is difficult to accomplish significant changes to legal education in the united states, and the process is confounded by local political and economic considerations. after the american civil war ended in 1865, industry and finance grew rapidly and the structure of corporate business and investment took on new complexities. these events “created pressures for more thorough and rigorous intellectual training in the law.”96 the emergence of the corporate lawyer led to the birth of the law firm,97 and “[b]usiness leaders needed skilled and effective lawyers to maximize their opportunities and manage their interests.”98 as mentioned earlier, although a few law schools existed, most jurisdictions did not require any formal education or training to become a lawyer. the chief method of legal education well into the second half of the nineteenth century was the apprenticeship, but the typical apprenticeship in the 1800s was not very effective at producing highly skilled lawyers. “at its best, apprenticeship at that time was all that clinical legal education is claimed to be today: close supervision of a student by his principal in real-life encounters. yet few apprenticeships worked out that way. indeed, even when principals were diligent, the chances of any one office offering a good all-around training were small.”99 the student read law in an older lawyer’s office; he did much of the hand copying of legal instruments that had to be done before the day of the typewriter; and he did many small services in and about the office, including service of process. sometimes the older man might take these incidental services as his pay for his preceptorship. but stiff fees were paid for the privilege of reading in the office of many a leader of the bar. legal biography amply witnesses that such training was of widely varying thoroughness and quality; that it was typically not of great length of time; and that much of it, as in the interminable copying of documents, was of a rote character.100 as more law schools began appearing in the mid-1860s, many aspiring lawyers and leaders of the profession came to view the systematic, academic educational experience promised by law schools as a beneficial supplement to the somewhat happenstance education acquired through apprenticeships. enrollment in law schools increased dramatically in the second half of the nineteenth century.101 however, “[n]o one at that time was suggesting that all three years of training should be spent in law school. the leadership of the bar was fighting for something much more fundamental: a generalized requirement of apprenticeship, part of which might be ‘served’ in law school, and an effective bar examination.”102 116 journal of clinical legal education december 2004 95 id. 96 hurst, supra note 60, at 260–261. 97 boyd, supra note 5, at 3 . 98 philip gaines, the “true lawyer” in america: discursive construction of the legal profession in the nineteenth century, 45 am. j. legal hist. 132, 132 (2001). 99 stevens, supra note 58, at 24. 100 hurst, supra note 60, at 256. 101 stevens, supra note 58, at 24–25 . 102 id. at 25. between 1870 and 1890, many licensing authorities reinstated mandatory apprenticeships or formal study requirements, and the written bar examination became the norm.103 thus, into the late1800s the preparation of most lawyers for practice in the united states was similar to that in the united kingdom. section 2. the traditions diverge two developments in the second half of the nineteenth century were responsible for the united states developing a very different approach to legal education than the united kingdom. the first development was the introduction of the case method at harvard law school which not only became the exclusive method of law school instruction but also came to be accepted as an adequate substitute for apprenticeships. the case method changed the content and nature of legal study, creating deficiencies in the education of american lawyers that persist today. the late nineteenth century also marked the beginning of efforts to increase the regulation of legal education and admission to the legal profession. the story of how law teachers and “elite” lawyers accomplished this, sometimes working together and sometimes opposing each other, is essential to understanding the system of legal education in the united states today – and who controls it. the case method makes its appearance a law school class in the mid-1800s involved a law teacher, usually a retired judge with long experience at the bar, lecturing about “the law.” lectures usually consisted of a series of rules that students transcribed and memorized.104 “the result of rule-teaching law can be readily surmised; it produced lawyers who regarded the law as a body of rules, a bar that argued cases in terms of rules, and courts that decided cases on the basis of rules.”105 “the presumed omniscience of the lecturer as a source of authoritative rules, together with learning by rote, produced something of a priestly class of lawyers with a priestly attitude toward the law.”106 a radical change in the method and content of legal education was on the way. many american educators studied in german universities during the mid-1800s, and they returned touting the advantages of germany’s system of higher education. the germans emphasized research and the production of new scholarship over the transmission of known wisdom, and they stressed scientific investigation over instruction in moral or cultural traditions.107 american educators began implementing the german vision of university instruction in american universities, and it dominated the thinking of most american colleges by the beginning of the twentieth century.108 charles eliot, a professor of analytic chemistry at mit who became president of harvard university in 1869, was one of the educators influenced by german universities.109 when eliot appointed christopher columbus langdell as dean of the harvard law school in 1870, langdell the evolution of legal education in the united states and the united kingdom: how one system became more faculty-oriented while the other became more consumer-oriented. 117 103 id. 104 woodward, supra note 51, at 352. 105 id. at 353. 106 id. at 354. 107 mark bartholomew, legal separation: the relationship between the law school and the central university in the late nineteenth century, 53 j. leg. educ. 368, 377 (aals 2003). 108 id. at 374. 109 id. at 377; and martini, supra note 57, at 57. decided to bring german educational philosophies into the legal lecture hall.110 langdell’s “primary fame lay in the introduction of case method to the teaching of law. . . . in langdell’s opinion, ‘[t]he principles of law are ‘embodied’ in cases, as gold in ore. the shortest and best way, surely, and maybe the only way of discovering these principles is by studying the cases in which they appear. cases, that is to say, the opinions of judges comprise the matter of the science of law.’”111 langdell articulated a vision of the law as an organic science with several guiding principles rather than as a series of facts and rules to be memorized. it was the law professor’s job to mine the language of appellate cases for general principles of law.112 although they supported structured legal education, the leaders of the legal profession were not natural allies of the case method nor of legal education limited solely to the study of legal rules.113 “the fashionability of the case method was in many ways ironic, for that was the period when the leadership of the profession was passing from courtroom lawyers to the office lawyers who sought to avoid litigation. meanwhile, the law schools were favoring a system that appeared designed to produce litigators,” something the new breed of corporate lawyers viewed with increasing disdain and dislike.114 these corporate lawyers were “attracted to english procedure, which, with its system of costs, discouraged litigation. although the case law schools were training lawyers for the emerging corporate law firms, those very firms believed the case method to be a trojan horse in their midst.”115 as it turns out, langdell was wrong both about the usefulness of the case method for discovering the basic principles of law and about the similarities of his approach to german scientific inquiry. “later academics, like william keener, were more sophisticated and saw the law as more complex, with an infinite variety of principles.”116 it became “clear to a rising generation of young academics that the langdellian claims that all law could be found in the books and that law was a series of logically interwoven objective principles were, at most, useful myths.”117 “this led keener and others to place less emphasis on the genius of the case method as a means of teaching the substantive principles of law, but to stress more strongly the case method’s unique ability to instill a sense of legal process in the student’s mind. in other words, the main claim for the case method increasingly became its ability to teach the skill of thinking like a lawyer. methodology rather than substance became the nub of the system.”118 the avowed primary purpose of law school in the united states henceforth was not to teach the law but how to think like a lawyer119 though that claim, too, proved to be a myth. when properly used, the case method can be an effective tool for achieving limited educational benefits, however, it is impossible to prepare students for the practice of law by relying exclusively or even primarily on the case method. all criticism [of the case method] traced to one radical defect. the case method isolated the study of law from the living context of the society. the student of law needed to be aware of the pressure of politics, the strands of class, religious, racial and national attitudes woven into 118 journal of clinical legal education december 2004 110 bartholomew, supra note 107, at 378. langdell served as harvard’s dean until 1895. stevens, supra note 58, at 37. 111 martini, supra note 57, at 58. 112 bartholomew, supra note 107, at 378. 113 stevens, supra note 58, at 57. 114 id. at 57–58. 115 id. at 58. 116 id. at 55. 117 id. at 134. 118 id. at 55. 119 martini, supra note 57, at 59. the values and patterns of behavior with which law dealt; he needed some appreciation of the balance of power within the community, the clash of interests, and the contriving of economic institutions, as all these influenced and were influenced by the effort to order the society under law. but of all this, so far as the law school was concerned, the student was made aware only incidentally – as he glimpsed the social context through recitals of fact and appraisal, of widely varying accuracy and imagination, in the reported opinions of appellate courts.120 in no respect was the case-method curriculum more narrow than in ignoring the bulk of the lawyer’s special skills. a lawyer must draft documents; he must untangle complicated tangles of raw fact (and not merely handle the predigested “facts” stated in reported opinions of courts); he must weigh facts for the formulation of policy in counseling clients; and know how to choose and employ legal tools as positive instruments of policy. but of all these things, the student learned under the case method only as neglected by-products of reading the assigned opinions, or from passing classroom references drawn from his instructor’s experience. the new law curriculum put a firm intellectual discipline in place of lax apprenticeship; but it offered no substitute for other aspects of training that had been a valuable part of the better office education.121 the most amazing claim for the case method was not that it was a superior method for teaching law but that it was an adequate substitute for supervised law practice. langdell claimed that the case method was a practical way to legal competence.122 his claim was based on the combination of the case method with the question-and-answer technique that law teachers were using to lead students through their analysis of appellate cases. the technique was similar in purpose and form to the traditional law school “quiz,” and it “rather pretentiously came to be known as the socratic method.”123 keener argued that, by participating in classes involving the use of the case method and socratic dialog, “the student is practically doing, under the guidance of an instructor, what he will be required to do without guidance as a lawyer. while the student’s reasoning powers are thus being constantly developed, and while he is gaining the power of analysis and synthesis, he is gaining knowledge of what the law actually is.”124 the assertion that the case method and socratic dialog sufficiently replicated the experience of working in a lawyer’s office was, of course, just plain wrong. supervised law practice plays important symbolic and functional roles in the preparation of lawyers that are quite different from any role played by the case method or socratic dialog. while supervised practice is an ineffective method for imparting information about the law or legal processes, supervised practice is more effective than classroom instruction at teaching the standards and values of the legal profession and instilling in students a commitment to professionalism. this is why most countries in the world, including those in the united kingdom, require lawyers to engage in a period of supervised practice before allowing them to be fully licensed. in explaining why english solicitors and barristers have always highly valued articles and pupillage, michael burrage wrote: by forcing clerks and pupils to submit to a period of hardship, drudgery and semithe evolution of legal education in the united states and the united kingdom: how one system became more faculty-oriented while the other became more consumer-oriented. 119 120 hurst, supra note 60, at 266. 121 id. at 270. 122 id. 123 stevens, supra note 58, at 53. 124 id. at 56–57, citing william a. keener, a selection of cases on the law of quasi contracts. cambridge, mass., 1888–89, iv; and william a. keener, the inductive method in legal education, 17 reports of the american bar association 473, 482 (1894). servitude, it necessarily conveyed a due appreciation of the value of membership in the profession. it also instilled respect for one’s elders, for their experience, for their manners, conventions and ethics and for their sense of corporate honour. articles and pupillage could, therefore, provide cast iron guarantees about the attitudes, demeanor and commitment of those who were to enter the profession.’ a university degree, by contrast, guaranteed only the acquisition of legal knowledge of uncertain relevance to the actual practice of law. . . . they were forms of moral training, of initiation into networks that linked every past and present member of the profession, by ties of obligation, loyalty, and possibly affection, that enabled to [sic] newcomer to belong, to empathize with its aspirations and concerns and to share its sense of honour.125 in the united states, however, enough people were eventually convinced that harvard’s “practicality” claim for the case method was valid, and they accepted law school education as an adequate substitute for apprenticeships or any other form of supervised practice. some segments of the legal profession recognized early on that law schools using the case method were not adequately preparing students for law practice and that the case method was not, in fact, an adequate substitute for apprenticeships. in 1882, the american bar association’s standing committee on legal education called on law schools to implement “a method of study directed to the development of basic lawyer skills. students should ‘learn the abstract framework first, then learn how the courts apply it.’ the committee said that a change was needed because students were learning ‘a mass of rules but not how to use them.’ in furtherance of this goal, it recommended that law schools should encourage apprenticeships in law offices.”126 an 1891 report of the aba committee on legal education attacked the case method as “unscientific.” “the report argued that the ideal work of the lawyer was to be done by knowing the rules and keeping clients out of court. teaching decisions without systematically instilling rules led to the “great evil” manifested by young lawyers who were all too willing to litigate, did not restrain their clients, cited cases on both sides in their briefs, and left all responsibility to the court.”127 the standing committee recommended that practice courts should be established in every law school. “the student cannot practice by simply listening to a teacher expound principles of practice, but opportunity must be afforded him for doing himself the things which he will have to do in case of actual litigation.”128 the committee was just as vigorous in its assaults on the case method at the 1892 annual meeting of the aba. “‘the result of this elaborate study of actual disputes, and ignoring of settled doctrines that have grown out of past ones, is a class of graduates admirably calculated to argue any side of any controversy, or to make briefs for those who do so, but quite unable to advise a client when he is safe from litigation. . . . the student should not be so trained as to think he is to be a mere hired gladiator.’ this was praise for the english model . . . .”129 120 journal of clinical legal education december 2004 125 michael burrage, from a gentlemen’s to a public profession: status and politics in the history of english solicitors, 3 int’l j. leg. prof. 45, 54 (march 1996). 126 boyd, supra note 5, at 6. 127 stevens, supra note 58, at 58. 128 boyd, supra note 5, at 10. 129 stevens, supra note 58, at 59, quoting “report of committee on legal education,” 15 aba proceedings 317, 340–341 (1892). in the end, the aba’s vision of the appropriate direction for legal education was not the vision that law schools in the united states would follow. “as it turned out, the aba meetings of 1891 and 1892 were the last serious doubts the legal establishment expressed about the case method. by the 1893 annual meeting, the harvard and keener forces were much more in control and, although there was criticism of the case method, it was relatively muted.”130 once the case method was entrenched and the apprenticeship requirement was abandoned, it proved very difficult to reinstate apprenticeships, though efforts to reinstate them continued into the twentieth century.131 at the 1909 aba meeting, franklin danakher of the new york board of examiners said his state had made a “grievous error” in allowing students to take the bar examination without serving some time in a clerkship. in 1910 the american bar association recommended that, after three years of law school, students have a mandatory one-year clerkship, and the association of american law schools was urged to support the recommendation. in 1913, the aba formally asked the association of american law schools to accept the rule, but, led by henry rogers, the academics balked. to them it was abundantly clear that the case method was practical; the obtuseness of practitioners seemed to know no bounds.”132 the case method was subjected to systematic, critical analysis for the first time in the common law and the case method, a report prepared by josef redlich, an austrian observer for the carnegie foundation, that was published in 1914. redlich described the strengths and shortcomings of the case method, and he concluded that the case method was essentially geared to teaching common law rules and that “for teaching statutory and other materials, different methods of instruction would be more appropriate.”133 redlich also noted the absence of a practical side to law school. although the leading academics of the day assimilated clinical studies in medical school to the study of appellate cases, redlich was unconvinced by their arguments.134 redlich’s analysis, however, did not stem the tide of university law schools that were following harvard’s lead and adopting the case method.135 “by 1900 a remarkable uniformity was apparent in legal curricula across the land. with respect to core curriculum virtually all schools had accepted the harvard model by 1920. in fifty years one school had intellectually, socially, and numerically overwhelmed all others.”136 one can only speculate about the content and structure of legal education in the u.s. today if eliot and langdell had admired the english method of education rather than germany’s. the most famous reaction to langdell’s approach, the so-called realist movement, occurred in the 1930’s. the realist movement cultivated the idea that one should view the law whole or, alternatively, to see the law as it is.137 the most influential scholars in the realist movement were roscoe pound, leon green, karl llewellyn, jerome frank, and oliver wendell holmes, jr., “the the evolution of legal education in the united states and the united kingdom: how one system became more faculty-oriented while the other became more consumer-oriented. 121 130 id. 131 delaware and vermont are the only u.s. jurisdictions that require apprenticeships today. for more information see supra note 16. 132 stevens, supra note 58, at 119–120 . 133 id. at 117. 134 id. at 119–120. 135 bartholomew, supra note 107, at 378. 136 robert stevens, two cheers for 1870: the american law school, in law in american history 405, 434–435 (donald fleming and bernard bailyn, eds., little, brown 1971). 137 martini, supra note 57, at 60. most famous of all realists, surely the most influential.”138 jerome frank’s pleas for ‘lawyer schools’ were an attack on the heart of the langdellian assumption that the case method was both practical and in the intellectual tradition of german scientism. frank argued that law schools had become too academic and too unrelated to practice: the law student should learn, while in law school, the art of legal practice. and to that end, the law schools should boldly, not slyly and evasively, repudiate the false dogmas of langdell. they must decide not to exclude, as did langdell – but to include – the methods of learning law by work in the lawyer’s office and attendance at the proceedings of courts of justice. . . . they must repudiate the absurd notion that the heart of a law school is its library.139 “the major contribution of the realist movement was to kill the langdellian notion of law as an exact science, based on the objectivity of black-letter rules. when it became acceptable to write about the law as it actually operated, legal rules could no longer be considered value-free.”140 “after holmes, the structure of langdell’s pedagogy remained intact but its heart had been torn to shreds.”141 in light of such strong and well-founded criticisms of the case method, one might reasonably ask why the case method survived and flourished. in the end, the persistent preeminence of the case method in american legal education has much less to do with its usefulness for preparing lawyers for practice, either by transmitting knowledge or teaching analytical skills, than it has to do with the economics of legal education and the political power of law professors. [t]he case-method system . . . held a trump card – finance. the vast success of langdell’s method enabled the establishment of the large-size class. although numbers fluctuated, langdell in general managed harvard with one professor for every seventy-five students; the case method combined with the socratic method enabled classes to expand to the size of the largest lecture hall. . . . the case method was thus both cheaper as well as more exciting for both teacher and student. such was the prestige of harvard that law schools emulating its teaching method could scarcely ask for a “better” faculty-student ratio. any educational program or innovation that allowed one man to teach even more students was not unwelcome to university administrators. the “harvard method of instruction” meant that law schools could be self-supporting.142 in other words, the case method’s success had a lot to do with money. law schools in the united states were accepted into the universities in part because they could be self-supporting – or actually produce a cash surplus. the expectation that law schools would be self-supporting, however, has made it difficult to introduce alternatives to the case method. “even the leading law schools had always had faculty-student ratios that would have been unheard of in any marginally acceptable college and unthinkable in any other graduate or other professional school. this underfunding of legal education was almost certainly attributable to the langdellian model, for the 122 journal of clinical legal education december 2004 138 id. 139 stevens, supra note 58, at 156–157, quoting jerome frank, “what constitutes a good legal education?,” a speech to the section of legal education in 1933, as cited in edward t. lee, the study of law and proper preparation (chicago 1935). 140 id. at 156. 141 martini, supra note 57, at 66. even harvard’s students criticized the case method. during a curriculum study in 1935, harvard students attacked the case method and the overall blandness of the curriculum. they thought the case method lost its value after the first year, and they wanted the faculty to replace it with lectures and discussions. stevens, supra note 58, at 137 & 161. 142 stevens, supra note 58, at 63 (citations omitted). case method seemed to work as well with two hundred students as it did with twenty . . . .”143 the other reason for the survival of the case method is the political power of law teachers which has its roots in langdell’s appointment of james barr ames as an assistant professor in 1873. until then, most law professors were current or former practicing lawyers or judges. ames had graduated from the harvard law school a year earlier and had no experience in practice.144 ames’ appointment reflected harvard’s embrace of another german educational practice – appointing former students with little practical experience but with research potential.145 as langdell explained, “what qualifies a person . . . to teach law is not experience in the work of a lawyer’s office, not experience in dealing with men, not experience in the trial or argument of causes – not experience, in short, in using law, but experience in learning law . . . .”146 ames’ appointment arguably had a more significant impact on legal education than any other innovation by langdell because it began a process that separated the interests of the academic community of law teachers from those of practicing lawyers. ames’ appointment “created, for the first time, a division in the legal profession between the ‘academics’ and the ‘practitioners,’ a separation that would not only logically lead to the creation of the association of american law schools (aals) in 1900 as an entity separate from the aba, but would also cause increased confusion and controversy in the disputes over standards in the early twentieth-century.”147 “law teachers liked the german model of higher education because it conferred prestige on their profession. use of german educational methods allowed law professors to compare themselves with other academics; they were advancing the boundaries of knowledge, not merely instructing students on how to ply a trade.”148 “when the law school became a separate school and instituted a four-year program of study, one berkeley professor commented approvingly that this was an attempt to structure the law school along the lines of the german university, where pure scholarship and research mattered most.”149 “no doubt part of the method’s popularity was snobbism; once elite law schools had decided to approve of the system, those aspiring to be considered elite rapidly followed. such elitism, however, may have been not only on the part of the institutions but also on the part of the individuals within them. law professors undoubtedly relished their increasing power and influence in the classroom and happily made the change from treatise-reading clerk to flamboyant actor in a drama.”150 today, many law professors in the united states use a wide variety of teaching methods, but the case method remains entrenched as the primary method of instruction during all three years of law school. the struggles over regulating legal education and admission to the profession in the 1870s, as mentioned earlier, many lawyers were concerned about the quality of the legal profession – with good reason. they wanted to impose restrictions on access to the legal profession, contrary to the principles of jacksonian democracy. they were also concerned about the diploma privilege, the practice by which graduates of some law schools could be admitted to law practice in certain states without taking a bar examination. the lawyers felt it took control of the evolution of legal education in the united states and the united kingdom: how one system became more faculty-oriented while the other became more consumer-oriented. 123 143 id. at 268. 144 hurst, supra note 60, at 264. 145 bartholomew, supra note 107, at 378. 146 hurst, supra note 60, at 263. 147 stevens, supra note 58, at 38–39. 148 bartholomew, supra note 107, at 379. 149 id. 150 stevens, supra note 58, at 63. entry into the profession away from practitioners and gave it to legal educators.151 leaders of the legal profession decided to try to establish some control over legal education and admission to practice. their effort began at the american social science association meeting in saratoga, florida, in 1876. this was six years after langdell arrived at harvard and three years after he appointed ames to the faculty. the president of the social science association was lewis delafield, the leading opponent of the diploma privilege. delafield attacked the jacksonian “notion among laymen, which is shared by many professional men and has found expression from certain judges, that the gates to the bar should be wide open, and easy admission allowed to all applicants.”152 delafield called for higher standards that would ensure that lawyers had character and learning. at the next meeting of the american social science association in 1877, the organization urged the formation of a national lawyers’ group, and the american bar association (aba) was created in 1878.153 although the aba controls the accreditation of law schools throughout the united states today, its primary function in its initial years was to recommend courses of study that state and local bar associations should require for admission to the practice of law.154 the aba created a standing committee on legal education as one of the aba’s first subgroups. as it turned out, the committee on legal education was frequently more or less in the hands of what alfred reed would later call “the schoolmen,” that is, “those who were connected with or believed in legal education in law schools rather than in law offices.”155 this meant that the committee’s views about how to improve the quality of the legal profession were not always in line with those of the overall membership of the association. for example, the standing committee recommended in 1879 that a law school diploma should be an essential qualification for admission to the bar. “the association rejected that declaration and several like it in later years despite frequent dilution.”156 apparently still under the control of schoolmen in 1881, the committee recommended that the course of study in law school should include “an ambitious, three-year course of study for all lawyers to include: moral and political philosophy, law of england (feudal, municipal, and origin of the common law), law of real rights and remedies, law of personal rights and remedies, law of equity, the lex mercatoria (law merchant), law of crimes, law of nations, admiralty law, roman law, constitution and laws of the united states, including federal jurisdiction, state constitution and laws, and political economy.”157 only one year later, however, the composition of the committee seems to have changed for it proposed “‘a new practical course of study’ that included real property, personal property, torts, contracts, procedure, and testamentary law. it stated that legal education must prepare the working lawyer for his job as a lawyer and therefore should teach practical common law, not diplomacy, history, political economy, or other social sciences.”158 124 journal of clinical legal education december 2004 151 id. at 26. 152 id. at 27. 153 id. 154 boyd, supra note 5, at 3. 155 preble stoltz, training for the public profession of the law (1921): a contemporary review, in packer & ehrlich, supra note 10, at 227, 233. packer and ehrlich define “schoolmen” as “the leaders of legal education and the ‘elite’ members of the bar.” packer & ehrlich, supra note 10, at 26. 156 id. 157 boyd, supra note 5, at 6 . 158 id. in 1891 the committee opposed another attempt to require college study before law school.159 the committee’s position on the issue did not matter in the end because harvard began requiring a college degree for prospective law students by 1896, and most other university-related law schools followed harvard’s lead fairly quickly.160 the political tide shifted back in favor of the schoolmen when the section on legal education and admissions to the bar was formed in 1893. it was the first section created by the american bar association.161 whereas membership on the committee on legal education was by appointment only, the section was open to any member of the aba who wanted to participate. to the leaders of the section “[l]egal education meant law school education and the focus was on ways of improving law schools.”162 it naturally developed that members of the committee on legal education and the broader association frequently had somewhat different opinions about legal education than members of the section of legal education and admissions to the bar. for example, the section passed a resolution in favor of lengthening the period of law study to three years in 1895, but, although the aba membership passed a similar resolution in 1897, it left out the words “in law school.”163 although law professors and practicing lawyers were to continue wrestling over control of legal education throughout the twentieth century, they were united at the end of the nineteenth century in their desire to raise the standards for admission to the legal profession. “the elite lawyer in the 1890s headed for the newly emerging law firms in wall street might well graduate from yale college and the harvard law school and then spend his first few years working for the firm learning practical skills. the typical lawyer, however, in almost any state, might begin practice on his own without any institutional training, perhaps without even a high school diploma, and often with no or only minimal office training.”164 “no state required attendance at law school, and the majority of lawyers in the 1890s saw the inside neither of a college nor of a law school. several states did not even require graduation from high school for admission to the bar. it was galling to the leaders of the bar that there had been a dramatic revival in formal training for divinity and medicine but, at best, a desultory revival in law.”165 although there were good reasons to be concerned about the quality of legal services, the elite lawyers and the law teachers also had less altruistic motives for wanting to raise the standards for admission to the legal profession. the law teachers wanted to protect and enhance the exalted status that their use of case method produced for them in the university systems. the elite lawyers wanted to make it more difficult for immigrants, or at least those who were not caucasian and christian, to become lawyers. the anglo-saxon protestants who dominated the top levels of the legal profession were concerned about the rising number of second generation immigrants who were entering the legal profession. america had changed from its days as a collection of colonies on the east coast that were populated by immigrants from one country who shared common ideals and traditions. it had become a large country serving as a melting pot of diverse peoples from all over the world, as well as thousands of former slaves who were set free by the civil war. the evolution of legal education in the united states and the united kingdom: how one system became more faculty-oriented while the other became more consumer-oriented. 125 159 id. at 10. 160 bartholomew, supra note 107, at 388. yale held out until 1912. michigan did not require a college degree until 1928. id. at 391. 161 stoltz, supra note 155. 162 id. at 233. 163 id. 164 stevens, supra note 58, at 96. 165 id. at 95–96. it is difficult to determine how much of the interest in “improving the profession” was for bona fide reasons and how much was not. some people claimed that the efforts to raise standards were primarily concerned with keeping out jews, blacks, and immigrants.166 yet others concluded that “it would be wrong to view the issue solely from such limited points of view; the motives behind raising standards were numerous. the overall thrust of the movement to raise standards was part of a far larger movement of institutionalization, and, whatever motivated the leaders of the bar, they were committed to an ethical, educated bar.”167 one should keep in mind that the admission and regulation of lawyers was controlled on a state by state basis and, consequently, the standards for admission to the legal profession were quite varied. the american bar association did not have any power to control the standards for law school or bar admission. all it could do was to make recommendations and try to persuade schools and states to implement them. it did not have much success in its early years. in the meantime, a new political force was in the making. the new profession of “academic lawyers” initiated by ames’ appointment at harvard did not have an organization of its own, and the academics were unhappy that the aba was not devoting more time to legal education and that it had dared to criticize the case method. “in 1899, the aba, under pressure from the new breed of academic lawyer, called for the establishment of an organization of ‘reputable’ law schools, which came into being in 1900, with twenty-five members, as the association of american law schools.”168 despite their differences on some issues, the aba and the aals quickly joined forces against part-time, evening law schools that catered to less affluent members of society, and their efforts to “improve” or destroy these schools continued from the beginning to the middle of the twentieth century. “although the academic lawyers often argued the need to rid society of the night schools to insure competent, public-spirited, and ethical lawyers as the basis for exclusionary moves, aba leaders were more blunt. world war i made matters worse. legal politicians found that the legal profession was a means by which jews, immigrants, and city-dwellers might undermine the american way of life.”169 [t]he attack on night and part-time schools that opened the twentieth century seems to have been a confusing mixture of public interest, economic opportunism, and ethnic prejudice. another factor, related to all of these, yet somewhat different, was “professional pride.” it had its roots in the “culture of professionalism” of the late nineteenth century. lawyers and law professors had recently founded their professional organizations; they jealously guarded these institutions from any who might be considered interlopers. “science” and the orthodoxy of the case method had given them a solid basis for their pride, and anyone who did not follow the new religious creed was robbing them of their solidarity and standing.170 various proposals were initiated during the early part of the twentieth century to “improve” the legal profession. these included regulation of admission by the supreme court of each state, disapproval of the diploma privilege, candidates must be u.s. citizens, two years of college before law school, preliminary inquiry into a student’s character and fitness when he entered law school, candidates must speak english, submission of affidavits of character from attorneys personally known to members of the admissions committee (or a letter from a teacher or minister), passing a 126 journal of clinical legal education december 2004 166 id. at 100. 167 id. 168 id. at 96. 169 id. at 100–101. 170 id. at 101. college entrance exam, three years of law school study (four for part-time).171 most of these proposals were implemented by the middle of the century and remain in place today. at the beginning of the twentieth century, however, they were quite controversial because, collectively, they made it more difficult to establish law schools and more difficult to enter the legal profession. they also tended to make legal education and the legal profession more homogeneous and less diverse. in his report for the carnegie foundation in 1914, the common law and the case method, josef redlich noted that students from all classes of the population were found in each of the law schools in the united states and that the schools were serving at least two markets. he discovered that the proprietary schools “supply the needs primarily of those social strata whose sons are not thinking of university education in either the american or continental sense. they consider the legal profession as a trade, like any other, and regard legal education in the same light as commercial education in a commercial school.”172 thus, redlich identified two issues that the legal profession in the united states has still not satisfactorily confronted. one is the reality that most lawyers are in business to make money, not necessarily to provide a public service. the other issue is that the graduates of some law schools enter different practice settings than graduates of other law schools. seven years after redlich’s report, alfred reed would more fully consider the ramifications of the fact that the united states has a de facto stratified bar with diverse educational and training needs. at its 1917 meeting, under pressure from the aals which wanted to streamline the structure of regulating law schools, the aba established a council on legal education to replace the committee on legal education.173 the aals’ plan was to “pattern the council after the council on legal education in england, where 20 judges and barristers appointed by the four inns of court supervised the subjects, the teachers, and the examinations of those desiring to be called to the bar.”174 the aba made the council less powerful than the aals had hoped in order “to prevent control of the section [of legal education] from passing into the hands of . . . the law school association.”175 “to placate the aals, the aba staffed the council with the pillars of the academic legal establishment – the deans of harvard, wisconsin, minnesota, columbia, and northwestern.”176 “[t]he ‘schoolmen’ forces thought they were riding high and were in control of what the aba was likely to do with respect to legal education.”177 in the next year, 1919, the schoolmen suffered a reversal of fortune. the executive committee of the aba refused to give any financial support to the council on legal education for reasons that are unclear.178 furthermore, in a general reorganization of the aba, the executive committee made the council subject to the control of the section.179 the leading law schools fought the change. a resolution from the aals to preserve the council was debated at the aba meeting, but it was defeated 63 to 123.180 the aals was displeased, and it developed “a strategy to take over the evolution of legal education in the united states and the united kingdom: how one system became more faculty-oriented while the other became more consumer-oriented. 127 171 boyd, supra note 5, at 19–20. 172 josef redlich, the common law and the case method in american university law schools 70 (university microfilms international 1979). 173 stevens, supra note 58, at 114. 174 boyd, supra note 5, at 22. 175 stevens, supra note 58, at 114, quoting alfred z. reed. present day law schools in the united states and canada 39 (1928). 176 id. at 115. 177 stoltz, supra note 155, at 236. 178 id. at 237. 179 id. at 236. 180 id. at 237. the aba section of legal education through the simple expedient of attending meetings in force, since the aba, unlike the aals, was based on individual membership.”181 “the aals plan worked; professors packed the 1920 meeting of the aba section of legal education and admissions to the bar and were able to ensure that established law teachers had a strong say in section policy.”182 some people were concerned “that the aals would take over the section and that the standards would not represent the opinion of the profession or even of the aba.”183 a committee, chaired by elijah root, was appointed under pressure from law teachers to report on how to “improve the efficiency of persons to be admitted to the practice of law.”184 while the root committee was meeting, alfred z. reed was preparing a report on legal education for the carnegie foundation. in training for the legal profession, reed, a nonlawyer, pointed out that law, like medicine, is a public profession because lawyers do more than provide a social service. they are part of the governing mechanism of the state because “private individuals cannot secure justice without the aid of a special professional order to represent and to advise them.”185 unlike the leaders of the profession, however, reed did not view the public functions of lawyers as a justification for raising standards. rather, “[h]e saw the america of the 1920s as a pluralistic society being presented with a theoretically unitary bar.186 he concluded that there had been improvements in the quality of the leaders of the profession due to the development of law schools, but the other end of the profession was progressively worsening.187 reed believed that a unitary bar was doomed to failure. “he opposed the establishment of those universal standards – either through bar examinations or through accreditation – designed to drive out the intellectually less fashionable schools. in the long run, he saw the need for lawyers of differing skills and qualifications serving different purposes and different elements in society.”188 he recommended that part-time law schools redirect their goals “to graduate men competent to perform the relatively routine tasks within the confines of a single jurisdiction. they would be well-trained to do that and no more.”189 “as reed saw it, the issue was whether to improve the quality of the profession by forcing everyone into the mold of the harvard graduate (undergraduate college followed by full-time legal education) or to improve the quality by building a differentiated bar with some members trained to do some things and some trained to do others, with competence enforced by civil-service-type examinations for the various tracks.”190 the root committee had advance copies of reed’s report but chose to ignore his recommendations. instead, the root committee recommended requiring at least two years of college before law school191 and three years of full-time or four of part-time study in law school. in other words, it wanted schools to follow the harvard model. the committee also endorsed abolishing the diploma privilege and requiring applicants for bar admission to be examined by public authority. another recommendation was to revive the council on legal education and 128 journal of clinical legal education december 2004 181 stevens, supra note 58, at 115. 182 id. 183 boyd, supra note 5, at 23 . 184 id. at 24. 185 stevens, supra note 48, at 113. 186 id. 187 id. at 114. 188 id. 189 boyd, supra note 5, at 26. 190 packer & ehrlich, supra note 10, at 26. 191 in 1921, no state required law school training “for admission to its legally privileged bar.” reed (1921), supra note 6, at 213. invest it with the power to accredit law schools.192 the root committee’s proposals were presented at the 1921 aba meeting. reed’s report was still two months away from publication, and two delegates proposed withholding action on the root committee’s recommendations to see how consistent reed’s views were with the committee’s. “root answered that argument with the bland statement that the report had been available to the committee (which was true), and that ‘the recommendations of the committee were based upon their study of the report.’”193 the aba adopted the root committee’s recommendations at the 1921 meeting without considering reed’s report. the aba’s action in 1921 set a pattern that still defines legal education in the united states. “reed felt that legal education should not be exclusively patterned on the harvard mold; the schoolmen disagreed, and it was they who successfully maneuvered the 1921 meeting.”194 the rejection of reed’s idea of a differentiated bar ended any real chance that a state’s admissions authority might try to create a system of legal education that prepared some lawyers to provide specialized, limited legal services in order to improve access to legal education and the legal system by poor and underprivileged members of society195 in 1927, the aba appointed its first full-time advisor on legal education, claude horack, who was at that time also the secretary to the aals. “his primary assignment was to raise the standards of law schools and bar admissions. in keeping with this goal, the two associations continued to press on relentlessly with heightening requirements.”196 this “significant reproachment between the two associations”197 further solidified the law teachers’ control over legal education.198 alfred reed’s second report, present-day law schools, appeared in 1928 in an atmosphere of rising standards and increasing conformity. although a handful of states still had no requirements for any law training, almost every jurisdiction had a compulsory bar examination, some states required attendance at law school and, in almost every other state, law school and law office training had become alternatives. only four states still insisted on some office training for all students.199 reed was particularly concerned about the rapidly accelerating homogenization of law schools, which pressures from the aba and the aals were promoting. reed feared that eventually the standards would be applied to all schools, even those catering to the least affluent sections of the population. he was right, but his concerns went unheeded. the conflicts between university-based and unaccredited law schools became increasingly heated as the 1920s ended. the meeting of the aba section of legal education in 1929 was “probably one of the most unpleasant on record.”200 this was the meeting at which the recommendations of the root committee became part of the accreditation standards, although some people complained that the approval of the root report at the 1921 meeting was unfair because it had been packed the evolution of legal education in the united states and the united kingdom: how one system became more faculty-oriented while the other became more consumer-oriented. 129 192 boyd, supra note 5, at 24 . 193 stoltz, supra note 155, at 239. 194 packer & ehrlich, supra note 10, at 28. 195 stoltz, supra note 155, at 249. 196 stevens, supra note 58, at 173. 197 id. 198 the aba’s practice of hiring a person from academia as its advisor on legal education is a tradition that continues today, although current title for the advisor is “consultant on legal education to the aba.” because the consultant is responsible for administering the law school accreditation process, this is one of the most influential positions in the united states regarding legal education. 199 stevens, supra note 58, at 174. 200 id. at 175, citing edward t. lee’s “in re the selection of legal education and the american bar association: is the association to be controlled by a bloc?” with aals representatives.201 among other incidents during the 1929 meeting, edward t. lee, the dean of a part-time evening law school in chicago, accused the elite law schools of using the aba section of legal education and admissions to the bar to further the interests of the aals. “a group of educational racketeers – deans and professors in certain endowed and university law schools of the country – have used the american bar association as an annex to the association of american law schools, a close corporation of ‘case law’ schools, entirely irresponsible to the american bar association . . . . they have been boring from within our association in the interest of their own . . . .”202 it would still take until the eve of world war ii, however, before most states required two years of college before attending law school.203 in the end, the unaccredited law schools and the proponents of differentiated standards for law schools in the united states were defeated by two events that had nothing to do with the merits of the debate: the great depression and world war ii. during the great depression, which began in 1929 and continued until the united states entered world war ii in 1942, marginal law schools found it economically difficult to survive. the aba also continued to adopt increasingly stringent accreditation standards. “by 1937, the aba’s standards required two years of college study, and three years of full-time or four years of part-time study at a law school that had a library of at least 7,500 volumes, a minimum of three full-time professors, and a student-faculty ratio of no more than one hundred to one.”204 although it is impossible to determine accurately how much the decline of unaccredited law schools in the 1930s was due to the depression or how much was due to the continued raising of standards, “one clearly fed on the other.”205 “world war ii merely accelerated the directions taken in the 1930s. even before the outbreak of the war, the numbers of law students fell rapidly because of the selective service law.”206 by 1943, enrollment in law schools was 1/6 of what it was in 1938.207 by september, 1944, law school enrollment had decreased 83% since 1936.208 “several unaccredited schools closed, never to reopen. what the aba and the depression had begun, hitler helped to complete. [the german influence again.] moreover, although, for the most part standards were waived for the emergency, the aba established library standards for approved schools for the first time in 1942 and in 1944 moved to inspect all schools. the postwar path was clear. law was supposed to be an ‘intellectual’ profession. to the leaders of the profession, it also was evident that law schools were training for a homogeneous profession rather than providing a gateway qualification for diverse careers.”209 at the end of world war ii, the g.i. bill made legal education affordable to many, and the majority chose to exercise this opportunity at accredited law schools. many unaccredited schools went out of business.210 “the phenomenal influx of students into accredited schools after the war rapidly restored the confidence of the aba and the aals. in the years after 1945, standards leaped and structures hardened.”211 130 journal of clinical legal education december 2004 201 boyd, supra note 5, at 35–36. 202 stevens, supra note 58, at 175. 203 stoltz, supra note 155, at 242. 204 id. at 179. 205 id. at 177–178. 206 id. at 198. 207 boyd, supra note 5, at 47. 208 id. at 48. 209 stevens, supra note 58, at 199. 210 id. at 205. 211 id. at 207. in hindsight, one of the curious things about the movement to raise the standards for law schools and entry into the profession is that there was never any evaluation of the relationship between law school accreditation standards and the quality of legal services. “the contention that the public might be adequately protected by bar examinations alone was apparently not mooted; only accreditation of law schools was acceptable. that the new scheme might make it more difficult for minority groups to obtain a legal education, or might hold back those wishing to specialize, was immaterial. the american bar, as everyone knew, was unitary. ‘higher’ standards meant ‘better’ lawyers; the public must be protected at all costs, and that protection was clearly best arranged by the existing members of the profession.”212 the modern era of legal education in the united states the normal route into the legal profession became three years at an aba-accredited law school following four years of college.213 by 1950, three years of college became the norm, and by the 1960s, four years of college. the two-year law school had long since evaporated; in its place were three-year full-time schools and four-year part-time schools. the aba-aals minimum standards had rolled ever on, requiring increasing numbers of volumes in libraries and even fuller full-time faculties. the clerkship route to the bar had become a rarity. the success of the campaign had taken a long time, but the movement had had the effect desired by its leaders. a law student of 1970, thoroughly indoctrinated in the unyielding standards of his time, would probably have difficulty believing that it was not until roughly 1950 that the number of lawyers who had been to college exceeded the number of those who had not.214 in describing the goals of legal education in 1950, arthur vanderbilt wrote that “[t]he keynote we should strike is that all education in the last analysis is self-education . . . that in law schools we are only going to attend to two things, giving them the art of legal reasoning and some of the main principles of law.”215 vanderbilt’s analysis of the objectives of law schools in 1950 was probably accurate, and it demonstrated the gap between the objectives of law schools and the needs of their graduates to be prepared for law practice. ever since legal apprenticeships first fell into disfavor, the failure of the law school to teach legal skills, other than purely analytic ones, had been criticized.216 the first organized attempt to try to articulate the rationales underlying legal education was a 1944 report issued by the aals curriculum committee, written primarily by karl llewellyn. “the report noted, first of all, that with the increasing complexity of the law the regular case course was no longer, except for the best students, an adequate vehicle for indirect conveyance of the basic legal skills – ‘current case-instruction is somehow failing to do the job of producing reliable professional competence on the byproduct side in half or more of the end product, our graduates.’”217 in the 1950s and 1960s, “[d]iscussion of curricular reform increasingly centered on skills such as negotiation, drafting, and counseling – legal skills that had had no place in the langdellian scheme of things.”218 leaders of the legal profession began increasingly to express concerns that law the evolution of legal education in the united states and the united kingdom: how one system became more faculty-oriented while the other became more consumer-oriented. 131 212 id. at 206–207 (citations omitted). 213 id. at 206. 214 id. at 209. 215 boyd, supra note 5, at 59. 216 stevens, supra note 58, at 214. 217 id. citing aals proceedings (1944) 168 (emphasis included in original text). 218 id. at 212. schools were not living up to their expectations.219 the bar was irritated by an apparent reluctance on the part of leading schools to be concerned with those skills that the profession regarded as important; leaders of the profession also felt that the broadening of legal education had gone too far. by the 1960s at most schools, the second and third years had become largely elective, and the course titles bore little resemblance to the courses taken by leading lawyers when they had been in law school. the implications of this were to come to the fore in the friction between practitioners and academics during the 1970s.220 the confusion of u.s. law teachers about what they were doing and why they were doing it was apparent in 1971 when paul carrington made the following remarks at the aals annual meeting. while most law teachers would assert that they are teaching much beside legal doctrine, few are eager to say precisely what. some have been content to describe their work as teaching students ‘to think like lawyers,’ although that phrase is so circular that it is essentially meaningless. perhaps the reluctance to be more specific is borne in part by a distaste for platitudes. or perhaps it reflects the instinct of lawyers (shared by others who are experienced in human conflict) that it is more difficult to secure approval of goals than means. this reluctance should be overcome, partly to try to help students get a better sense of direction, but also in order to direct attention to the “hidden curriculum” which serve to transmit professional traits and values by the process of subliminal inculturation.221 in 1972, a carnegie commission report concluded that u.s. “[l]aw teachers often are confused about legal education and the form that it has been forced to take by the interplay of bar admission requirements, professional organization, and the law schools. they are unclear about the goals of the second and third years of legal education. they are often frustrated in their scholarship and uncertain about their professional and academic roles. increasingly disappointed and impatient students interact with increasingly frustrated and confused teachers and emerge with a patchwork professional education and an ambivalent view of themselves as professionals.”222 by the 1970s, law schools had effectively become the only portal to entry to the profession.223 the case method was still the predominant method of instruction in law schools, though no one had an adequate explanation of why. [t]he case method continues to dominate legal education in three ways. first the notion of “fundamental” courses, those making up the first year and upon which everything else depends, stems directly from langdell’s scientific conception of the law. secondly, the body of knowledge (law school law) that students are required to master is still found in “casebooks.” and thirdly, classes are still conducted in some variation of the socratic method, as if the prime aim of the teacher were to teach the student to extract principles from cases scientifically. each of these features of legal education, i must reiterate yet again, has become part of legal education only since 1870 as an adjunct to langdell’s case method. this is not to say that 132 journal of clinical legal education december 2004 219 id. at 238. 220 id. 221 carrington, training for the public professions of the law: 1971, part one, section ii, proceedings, association of american law schools, 1971 annual meeting (carrington report) reprinted in herbert l. packer and thomas ehrlich, new directions in legal education 93, 129 (mcgraw-hill 1972). 222 packer & ehrlich, supra note 10, at 33–34. 223 stevens, supra note 58, at 238. since langdell and his disciples introduced these ideas to they must be replaced by something else. it is, however, to say that the rationale for these three ideas – the “fundamental” first year courses, casebooks, and classes conducted along socratic lines – was first provided by the case method, and insofar as that rationale is no longer valid i should think these adjuncts would likewise be suspect, unless they are valid for some other reason than that given by langdell. they may well be, but i nonetheless suspect that much of the present unrest in law schools stems from the fact that no satisfactory justification for the continuance of this extremely stylized form of legal education has been given to the ever growing number of social science-conscious lawyers.224 “langdell’s first year is our first year; his method – briefing cases, analyzing holdings, socratic probing – is our method. in other words, legal education remains in form a kind of procrustean bed in which all learning for lawyers is forced to lie. i think i know why langdell and his colleagues made it so. frankly, i do not know why we do, unless it is pure inertia. for the above reasons, i conclude that though we have more or less thoroughly rejected the philosophy of the case method, like maitland’s forms of actions, it still rules us from the grave.”225 in 1973, u.s supreme court chief justice warren burger complained that traditional law school education was not providing adequate advocacy skills to law graduates. “[h]e suggested that a two-year program of basic legal education be followed by specialized training under the guidance of practitioners along with professional teachers.”226 his concerns about the quality of advocacy in the federal courts were symptomatic of the profession’s unhappiness with the quality of preparation of lawyers for practice.227 the clare committee was appointed by the u.s. court of appeals for the second circuit following burger’s remarks “to develop minimum educational requirements for lawyers appearing before the courts of that circuit. the clare committee proposed the successful completion of courses in five subject-matter areas: evidence, criminal law and procedure, professional responsibility, trial advocacy, and civil procedure, including federal jurisdiction, practice, and procedure. both the section and the aals opposed the clare proposals, which were not implemented.”228 other structural changes to legal education were advocated in the 1970s. in 1971, the aals curriculum committee, chaired by paul carrington of michigan, issued its report, training for the public professions of the law: 1971 (the carrington report). the carrington report called for a basic standard two-year j.d. degree, followed by a series of post-j.d. alternatives designed to respond to the different types of legal practice. the report denigrated the assumption that acquiring a store of information is the principal value of legal education. the committee viewed the present reliance on the case method as “a precious elaboration of details of little value to the generalist.”229 the report suggested changing the goals of the first year of law study to focus on macroissues, as opposed to microissues, of doctrine.230 a 1972 carnegie commission report231 endorsed the carrington committee’s recommendations, including the proposed two-year model, again as part of an overall freeing up of the alternative structures of legal education.232 the evolution of legal education in the united states and the united kingdom: how one system became more faculty-oriented while the other became more consumer-oriented. 133 224 woodward, supra note 51, at 366–367. 225 id. at 372. 226 boyd, supra note 5, at 115. 227 stevens, supra note 58, at 238. 228 boyd, supra note 5, at 115 . 229 packer & ehrlich, supra note 10, at 51–52. 230 id. at 50–51. 231 id. 232 stevens, supra note 58, at 242. no one knows for sure why harvard in the 1800s or the root committee in 1921 decided that law students should attend law school for three years. “unfortunately, no very good explanation can be given for the third year requirement because it was a totally noncontroversial part of the root resolution. it was noncontroversial because what the a.b.a. decreed in 1921 simply reflected what was then the practice of all but a few law schools. it had not, however, been standard for very long . . . .”233 the sum of the matter is that there never was a well-articulated basis for requiring three years of law school; perhaps the most persuasive reason is that english custom requires a prospective barrister to dine at an inn of court for three years before he can be called to the bar. the root committee departed from its task of defining minimum standards when it required three years of law school. at the time the root committee spoke, three years had been standard for no more than a decade and it is hard to believe that there were not other combinations of more college and less law school that they would have regarded as minimally satisfactory.234 for a while, the two-year law school option seemed close to being accepted as an alternative early in the new decade.235 in fact, the “aba section of legal education and admissions to the bar recommended to the mid-year meeting of the aba in 1972 that rule 307 of the law school standards be modified to allow the two-year law school. many assumed the change would go through. they could not have been more wrong.”236 the deans of harvard, columbia, yale, and pennsylvania opposed the idea, only the dean of stanford supported it. “dean abraham goldstein of yale, emphasizing that lawyers had to be trained as generalists, opposed shortening law school at the very moment that law was becoming more complex and students needed to be trained in history, philosophy, and the social sciences.”237 although the aba proposal was defeated, the debate about the lockstep of seven years of higher education continued. “justin stanley, president of the aba in 1975–76, continued to argue for a two-year law school, and once again the profession’s heightened interest in professional competence kept the pressure on. in 1978, chief justice burger called for a two year conventional law school followed by a year of clinical work. again, the law school establishment was not amused. the two-year law school movement, which had seemed so vigorous in 1970, seemed virtually dead by 1980.”238 134 journal of clinical legal education december 2004 233 stoltz, supra note 155, at 259. 234 id. at 260. 235 stevens, supra note 58, at 242. 236 id. 237 id. of course, the subjects listed by dean goldstein were never added to the curriculums of most u.s. law schools. 238 id. at 242–243. prestigious groups of academics, lawyers, and judges have continued calling for reforms in legal education in the united states consistently from the 1970s to today.239 not much has changed, however. at the beginning of the 21st century the goals and methods of legal education in the united states remain much as they were at the end of the 19th century. the primary educational goals of u.s. law schools are to teach legal doctrine and analysis. the case method/socratic dialog continues to be the primary method of instruction through all three years of law school. a recent survey of u.s. law school curriculums surprisingly concluded that “[i]t has been a decade of dynamism in legal education.”240 the report shows that law schools are giving more emphasis to skills and professionalism and have added more second and third year electives. the report also documents, however, that the content of the first year curriculum has not changed significantly. although simulated and live-client clinical courses have grown in number and sophistication, the survey found that only 24% of responding schools require students to take any of these courses. although the curriculum survey did not investigate this topic, very few u.s. law schools have made a serious effort to integrate the teaching of knowledge, skills, and values or to provide sequenced, progressive programs for teaching and learning professional skills. instruction about the values of the legal profession is not wide-spread or pervasively taught. ethics instruction is mostly limited to instruction about the mandatory rules of conduct in a single course on professional responsibility. law teachers are firmly in charge of legal education in the united states, not the legal profession, the judiciary, or the government, and they would strongly resist any efforts to reduce their power over legal education. they have too much to lose collectively and individually. consider the comments of historian robert stevens about the status and circumstances of law professors in the united states. to foreign lawyers, especially the professorate, the american law school is frequently a subject of admiration as well as envy. the leading american law schools appear to have an the evolution of legal education in the united states and the united kingdom: how one system became more faculty-oriented while the other became more consumer-oriented. 135 239 the most recent call for change is the conference of chief justices’ national action plan on lawyer conduct and professionalism (aba 1999) (chief justices’ action plan) (available at http://www.ncsc.dni.us/ccj/natlplan.htm). other important reports include legal education and professional development – an educational continuum, the report of the task force on law schools and the profession: narrowing the gap (robert maccrate, ed.) (aba section of legal education and admissions to the bar 1992) [the maccrate report] (reporting on the status of legal education and promoting more attention to teaching professional skills and values); teaching and learning professionalism: symposium proceedings (aba american bar association section of legal education and admissions to the bar professionalism committee and the standing committee on professionalism and lawyer competence of the aba center for professional responsibility 1997) (reporting proceedings of symposium on teaching and learning professionalism, october 2–4, 1996); report of the professionalism committee, teaching and learning professionalism (aba section of legal education and admissions to the bar 1996) (calling on law schools to place more emphasis on teaching professionalism); karl e. klare, the law-school curriculum in the 1980s: what’s left?, 32 j. legal educ. 336 (1982) (concluding that law school curriculum does not adequately prepare students to become successful attorneys); special committee for a study of legal education of the american bar association, law schools and professional education (aba 1980) (examining the inadequacy of legal education in preparing students for a legal career and recommending changes to improve and correct perceived problems); american bar association section of legal education and admissions to the bar, report & recommendations of the task force on lawyer competency: the role of the law schools (aba 1979) (stating that improvement in legal education is an important part to increasing future lawyer competence). 240 a survey of law school curricula 1992–2002, executive summary (curriculum committee of the aba section of legal education and admissions to the bar 2004). entrenched position of power in the profession, in american life, and, indeed, in the country at large, a position that is frequently denied to the academic branches of the profession in other industrialized societies. students from american law schools go out into a profession that appears to wield far greater power in politics, business, labor, and even in social reform than in other common-law countries. law professors within the university appear to live something of a charmed life and, within the profession, to have a profound impact on thinking about law, procedure, and institutions.241 a charmed life indeed. law teachers in the united states are well-paid, they have virtually complete control of which courses are offered at their schools, and within their assigned areas they teach what they want and how they want (there is limited peer review of teaching before tenure, none afterwards). u.s. law teachers have light teaching loads (9 to 12 credit hours a year), have little contact with students outside of class, grade on the basis of one final exam a semester (an exam that individual teachers prepare and grade with no oversight), and have their summers off, often with stipends to write law review articles. after u.s. law teachers receive tenure (in six years or less), most engage in research and publication, though relatively few produce noteworthy scholarship. if a tenured law teacher chooses not to publish anything else after receiving tenure, not much happens. though many u.s. law teachers supplement their salaries lucratively by “consulting” or actively practicing law, there is no requirement that they share their outside earnings with their institutions (as teaching physicians in u.s. medical schools must), nor do they involve students in their outside work. some schools require law teachers to report their outside activities, but there is virtually no oversight or accountability. although no one could dispute stevens’ point that the organization and structure of legal education in the united states is good for the professorate in u.s. law schools, one might reasonably inquire as to whether legal education in the united states is as good for its intended beneficiaries as in other countries, specifically british commonwealth countries. the modern era of legal education in the united kingdom the relatively uneventful period in the history of legal education in the united kingdom came to an end soon after world war ii. “the modern english law school is in most important respects a post second world war creation.”242 a significant expansion of legal education occurred between 1945 and 1960. enrollment in law school effectively doubled, as it did in other undergraduate schools. although law schools were not highly regarded by the universities or the profession, law schools gradually became the primary route into the legal profession.243 during the 1960’s, law school enrollment doubled again,244 and for the first time the majority of new solicitors were entering the profession after obtaining a law degree. legal education in the united kingdom began to change in the mid-1960s. dissatisfaction about law schools and the system of professional training and qualification, especially apprenticeship, increased.245 in 1963, gerald gardiner q.c. and andrew martin published law reform now in which they called for a thorough overhaul of the legal system, including legal education.246 136 journal of clinical legal education december 2004 241 stevens, supra note 58, at xiii (emphasis added). 242 twining, supra note 54, at 26. 243 id. at 28–31. 244 id. at 32. 245 id. 246 id. at 33. gardiner became lord chancellor247 in 1964 and appointed the law commission in 1965. “lord gardiner also appointed a committee chaired by mr. justice ormrod to conduct the first major review of legal education since the aiken committee of 1934 – or, as that had been rather feeble, one might say the first since 1846.”248 the ormrod committee presented its report in 1971.249 although the report eventually had a significant impact on legal education in england, the committee did not achieve its primary objective of creating an integrated and unified system of legal education and training.250 in the face of the three main interest groups’ refusal to cooperate, the committee could do little about the bifurcated system other than to clarify the lines of responsibility: the academic phase would be the responsibility of the universities and polytechnics; the bar and the law society would be responsible for professional and continuing education, although they did not agree on a joint professional qualification. instead, they insisted on conducting separate courses and examinations for the vocational stage in their own privately funded schools.251 some recommendations of the ormrod report were never implemented and others took many years to become practice. however, the report marked a turning point in the history of legal education in england by making legal education an important topic of discussion, establishing patterns and stability, and articulating a philosophy about legal education that continues to influence decision-makers today.252 the ormrod report also marks the modern starting-point for defining a “core” of undergraduate legal education in england. the committee set five “basic core subjects” as satisfying the “academic stage” of professional formation: constitutional law, contract, tort, land law, and criminal law. english legal system was assumed to be a part of the core curriculum. some additional requirements were imposed after the ormrod report.253 the academics “fought attempts to prescribe the detailed content of core subjects and their methods of assessment, with mixed success.”254 “by 1994, the de facto ‘core’ effectively filled nearly two thirds of many curriculums and most students chose vocationally ‘important’ options.”255 “[t]here seems to be a fairly regular divergence between the conceptions of teachers, students and employers about what is ‘vocationally relevant’ at undergraduate level. academic lawyers, no doubt with varying degrees of conviction and credibility, may echo karl llewellyn’s claim that the best practical training, as well as the best human training, that a law school can give the evolution of legal education in the united states and the united kingdom: how one system became more faculty-oriented while the other became more consumer-oriented. 137 247 the office of lord high chancellor of great britain, or lord chancellor, is one of the oldest offices of state in the united kingdom, and the second great officer of the state, ranking only after the lord high steward. among other significant responsibilities, the lord chancellor is the cabinet member who heads the department responsible for the administration of the courts (http://en.wikipedia.org/wiki/lord_chancellor (last visited june 16, 2004)). in 2003 the lord chancellor’s department was renamed the department of constitutional affairs, which claims on its website that it is “responsible for upholding justice, rights and democracy.” (http://www.dca.gov.uk/ (last visited june 16, 2004)). also in 2003 the prime minister announced his intention to abolish the office of lord chancellor to create a separate supreme court and a separate speakership for the house of lords, but it is not clear whether the house of lords will implement these changes (http://www.dca.gov.uk/ (last visited on june 16, 2004)). 248 twining, supra note 54, at 33. 249 report of the committee on legal education (ormrod report) (1971) cmnd. 4594. 250 twining, supra note 54, at 35. 251 id. 252 id. at 36. 253 id. at 162–163. 254 id. at 165. 255 id. at 162–163. is the study of law as a liberal art. students, however, tend to think that courses in areas like commercial law, procedure and evidence are ‘practical’ and subjects like jurisprudence, legal history and even human rights are ‘theoretical.’256 defining the core curriculum in undergraduate and vocational courses continues to be a subject of debate in the united kingdom, but the consistent trend has been to move away from a knowledgebased core and toward an outcomes-based curriculum.257 legal education in england began moving toward a vocational education built around skills in the 1970s. the public became increasingly dissatisfied with the legal profession and began questioning the benefits offered by lawyers to clients as consumers and the wider society. the public came to view lawyers as being more interested in their own power, privilege, and wealth than in the public good. governmental agencies became increasingly interested in regulating the provision of legal services during the 1970s and 1980s. ultimately, “the staff of the national board for prices and incomes, the monopolies and mergers commission of the office of fair trading had not only redefined the professions as vested interests but also, with consumer groups, redefined their clients as customers.”258 “the undermining of the profession’s public image prepared the ground for the political onslaught on the profession’s jurisdiction by the thatcher governments of the 1980s.”259 the thatcher government was encouraged to take on the legal profession by the popular support for a successful bill to end the solicitors’ conveyancing monopoly. in the green papers of 1989, mrs. thatcher “outlined her new vision of state-profession relationships” and made it clear that “the legal practice was to be regulated, like any other industry by the state and the market.”260 one result of governmental intervention was the demise of the five-year articles route into the legal profession. there was also a growing challenge to two assumptions: first, that professional expertise was found and transmitted only within the body of the profession and, second, that a rigid distinction between academic and professional programmes was inevitable.261 pressures increased on both the universities and the professional organizations to modify their programs of instruction to place more emphasis on teaching generic skills, to “learn how to learn,” to communicate effectively, and to work in teams, in accord with other common law jurisdictions and trends in higher education.262 the barristers responded first. the bar vocational course that began in 1989, “represented a radical switch from emphasis on knowledge to emphasis on skills. the selected skills are developed largely through practical exercises, which as far as is feasible simulate the kind of work that young barristers can expect to do in the early years of practice. this represented a genuinely sharp break from the past in objectives, methods, and spirit.”263 in 1990 the law society proposed changes to the legal practice course which moved in a similar direction, although it claimed to maintain “more of a balance between knowledge and skills than 138 journal of clinical legal education december 2004 256 id. at 84. 257 id. at 166. 258 burrage, supra note 125, at 68. 259 andrew boon, history is past politics: a critique of the legal skills movement in england and wales, transformative visions of legal education 155 (blackwell 1998), published simultaneously in 25 j. law & soc. 151 (1998). 260 burrage, supra note 125, at 69. 261 boon, supra note 259, at 156. 262 id. at 156–157. 263 twining, supra note 54, at 166–167. the bar vocational course.”264 “trainee contracts” were introduced at the same time, making articles “more like normal employer-employee relationships.”265 the law society also encouraged the universities to give more attention to skills instruction at the undergraduate stage, including legal research, problem solving, oral and written communications, initiative, leadership, and teamwork, particularly where this can be done in a legal context.266 the lord chancellor’s advisory committee on legal education and conduct (aclec) was created in april 1991 under the courts and legal services act 1990267 to assist “in the maintenance and development of standards in the education, training, and conduct of those offering legal services.”268 the act gave the committee statutory powers over barristers and solicitors, including the power to determine what role, if any, they were to play in educating or disciplining lawyers.269 the committee initiated “a series of reforms designed to convert legal practice into a more efficient, competitive and market-oriented industry.”270 the aclec commenced a major review of legal education in england and wales in 1992 and produced its “first report on legal education and training” in 1996.271 the report encouraged a partnership between the universities and the professional bodies, and it called for an end to the rigid demarcation of responsibilities. it recommended that “the degree course should stand as an independent liberal education in the discipline of law, not tied to any specific vocation.”272 it also recommended that all teaching institutions should consider the adoption of active learning methods.”273 the report also called for “a clear set of guidelines on minimum standards in respect of such matters as: . . . internal quality assurance mechanisms.”274 these would be set by a “new audit and assessment body”275 that should “assess law schools in terms of the subject outcomes proposed in the evolution of legal education in the united states and the united kingdom: how one system became more faculty-oriented while the other became more consumer-oriented. 139 264 id. at 166–167. the new legal practice course was implemented in 1993. 265 burrage, supra note 125, at 67. 266 twining, supra note 54 at 160, citing law society training committee, training tomorrow’s solicitors: proposals for changes to the education and training of solicitors (1990) para 4.1 and para 5.1. 267 news release of the lord chancellor’s department, 22 april 1996, at www://www.newsreleasearchive.net/coi/depts/glc/coi7764b.ok (last visited on june 16, 2004). the lord chancellor’s advisory committee on legal education and conduct was abolished in the access to justice act 1999 and replaced by a legal services consultative panel appointed by the lord chancellor (access to justice act 1999, part iii, section 35 (1) and 18a (1), http://www.hmso.gov.uk/acts/acts1999/90022-c.htm (last visited on june 16, 2004)). the consultative panel assists in the “maintenance and development of standards in the education, training, and conduct of persons offering legal services.” (access to justice act 1999, part iii, section 18a (3), http://www.hmso.gov.uk/acts/acts1999/90022-c.htm (last visited on june 16, 2004)). a “standing conference on legal education” including representatives from the profession and academia also exists to provide a forum in which “those responsible for the provision of legal education could discuss matters of common concern” and to provide a mechanism for communication between the world of legal education and the lord chancellor’s advisory committee on legal education and conduct. (the institute of advanced legal studies website, http://www.ials.sas.ac.uk/library/archives/scle.htm (last visited on june 16, 2004). see also the department of constitutional affairs website, http://dca.gov.uk/dept/legeduc/standcomf.htm (last visited on june 16, 2004)). 268 courts and legal services act 1990, part iii, section 20 (1), http://www.hmso.gov.uk/acts/acts1990/ ukpga_19900041_en_3.htm (last visited on june 16, 2004). 269 burrage, supra note 125, at 69. 270 id. 271 uk centre on legal education website, http://www.ukcle.ac.uk/resources/aclec.html (last visited on june 16, 2004). 272 lord chancellor’s advisory committee on legal education, first report on legal education and training (april, 1996), r. 4.1. 273 id. at r. 4.3. 274 id. at r. 7.1. 275 id. at r. 7.2. this report, the guidelines on minimum standards, and the law school’s own mission statement.”276 the aclec report concluded that “[e]ducation and training leading up to the point of initial qualification can no longer be considered as providing a sufficient base of knowledge and skill for the whole of one’s career . . . [but] the function of the prequalification stages of legal education and training . . . must be to lay the broad foundations in legal knowledge and skill which practitioners will be able to use throughout their careers.”277 the dearing report in 1997 added support to the movement toward skills instruction in undergraduate education by encouraging educational institutions to help all university students to develop key generic and specific subject skills in part by involving students in experiential learning and encouraging them to reflect on their experiences.278 the institutionalization of skills instruction in undergraduate law schools was probably assured in 1997 when the quality assurance agency for higher education (qaa) was created to “provide an integrated quality assurance service for uk higher education.”279 the qaa helps schools to define clear and explicit standards including frameworks for higher education qualifications and subject benchmark statements that set out expectations about the standards of degrees in a range of subject areas, including law.280 the qaa also conducts audits to determine if schools are providing education of an acceptable quality and at an appropriate academic standard.281 in 1999, the qaa developed benchmark standards for law schools that set levels of various abilities and skills that a student should demonstrate before being awarded a degree in law.282 these are minimum standards that apply to all law schools. each school is free to set higher benchmarks for its students. the law society of scotland launched a new diploma in legal practice program in 1999 designed to help law school graduates convert their existing knowledge of the law into action on behalf of their future clients. the curriculum is outcomes-focused. at the glasgow graduate school of law, for example, the program and each course in it emphasizes the integration of skills and knowledge, effective communication, and transactional learning.283 skills including negotiation, interviewing, legal drafting and writing skills, advocacy skills, and legal research skills are taught within the contexts of subject matter specific courses such as criminal law, tax law, and conveyancing.284 each course has specific learning objectives that are described in terms of the competencies that 140 journal of clinical legal education december 2004 276 id. at r. 7.2 (3). 277 acle 1996 report. 278 boon, supra note 259, at 154–155, citing higher education in the learning society: report of the national committee (1997) ch. 9 (dearing report). 279 qaa website, http://www.qaa.ac.uk/ (last visited june 16, 2004). 280 id. 281 id. 282 the benchmarks are on-line at http://www.qaa.ac.uk/crntwork/benchmark/bencheval/ law.html (last visited june 18, 2004). “commentary for law schools” about the benchmarks is on-line at http://webjcli.ncl.ac.uk/1999/issue2/aclec7c.html (last visited june 18, 2004). 283 glasgow graduate school of law, diploma in legal practice 2003–2004 course handbook 16 (copy on file with author). 284 to obtain a degree in legal practice, students must receive passes in conveyancing, law and the legal process, constitutional law and history (public law i), scottish private law i (contract and delict), scottish private law ii (family law and property law), criminal law, mercantile law, tax law, and evidence. although it is not required for the degree, a pass in european law is required for admission to the law society of scotland and the faculty of advocates. glasgow graduate school of law, diploma in legal practice 2003–2004 course handbook 5 (copy on file with author). students should develop during the course and which will be assessed by various means. for example, by the end of the company and commercial course, students should be able to “prepare and draft appropriate documentation in connection with the incorporation of a company, including basic articles of association,” “advise on the more commonly encountered duties and responsibilities of directors and secretaries,” and perform thirteen other tasks.285 part iii. new initiatives in the united kingdom and the united states new initiatives in the united kingdom in 2003, the training and framework review group of the law society of england and wales proposed a new training framework for solicitors.286 one motivation for developing a new framework is that, under the disability discrimination act, the law society “will shortly be under a new duty to demonstrate objective justification for all of its competence requirements. it will need to be able to demonstrate that any competence requirements that will be hard (or impossible) for some disabled solicitors to achieve are essential for the qualification of a solicitor; that they are an integral attribute required of all solicitors in practice.”287 the review group recommended that the law society should develop a new qualification scheme that includes the following, and more, “essential features:” a new framework based on what solicitors must know, understand and be able to do and the attributes they should be able to demonstrate at the point at which they qualify, that is, an outcomes-based framework. the compulsory outcomes should focus only on the essential knowledge, skills, and attributes that all solicitors should have at the point of qualification. proposed descriptions of the compulsory outcomes are delineated in some detail by the review group. the law society expects to finalize its descriptions of compulsory outcomes sometime in the fall of 2004 and to implement new programs for achieving them by the fall of 2006. the review group also called for a final, verifiable, and objective confirmation of an individual’s readiness for practice, with a particular focus on the person’s understanding of and commitment to professional responsibilities, ethics, and client care. this assessment is to take place “only in the light of significant experience in practice.”288 the review group is also urging the law society to encourage innovation in developing a broader range of pathways into the profession. if the training framework is valid and accurate assessment tools are developed to measure whether a solicitor is adequately prepared for practice, theoretically it should not matter how a person achieves those outcomes. however, the review group recommended that all pathways should include the following key features: completion of an honours (undergraduate) degree or equivalent; learning of law and law practice to at least an honours degree level; a rigorous assessment strategy; a period of work-based learning; successful completion of a course and assessment covering professional responsibilities, ethics, and client care; and completion of a learning record and formal confirmation of an individual’s readiness to practice.289 the evolution of legal education in the united states and the united kingdom: how one system became more faculty-oriented while the other became more consumer-oriented. 141 285 diploma in legal practice 2003–2004 course handbook, supra note 283, at 24–25. 286 training and framework review group of the law society of england and wales, second consultation on a new training framework for solicitors (2003). the document is posted on the law society’s website, http://www.lawsociety.org.uk/ (last visited may 2004). 287 id. at ¶ 30. 288 id. at ¶ 43. 289 id. at ¶ 58. in june, 2004, the law society of scotland released a working draft of “a foundation document” for the future development of professional legal training in scotland. (the foundation document was available on-line at http://www.lawscot.org.uk/public/home.html on november 10, 2004.) the document sets out the principle goals and specific objectives of the law society of scotland in relation to the education and training of those intending to become scottish solicitors. it describes the fundamental values of the legal profession and the fundamental principles of professional legal education, taking as its core educational concept the benchmark of competence in legal practice. the document defines competence in professional legal practice as “the distinguishing but minimum performance standards characteristic of the performance of a novice legal professional,” and it also describes the characteristics of competence more specifically. the law society is in the process or developing a common benchmark set of skills and knowledge for entry into the profession. the scottish foundation document recognizes that the ongoing revolution in business practice and communication create the prospect of continuously changing requirements for law practice. thus, it aims to identify how best to prepare lawyers to cope with and manage all the changes which they will encounter during their careers. the document endorses the concept of “deep learning” that is designed to foster understanding, creativity, and an ability to analyse material critically. it challenges the philosophy of “coverage” which asserts that new lawyers should not be permitted to practise unless and until they have demonstrated knowledge of the key provisions of numerous branches of scottish law. it views the ‘coverage’ philosophy as encouraging passive, unreflective learning, while discouraging analysis, reasoned argument, or independent research. in addition to continuing its emphasis on skills training in the three years between the granting of a law degree and the grant of a full practising certificate, the society joins the joint standing committee on legal education in scotland and the quality assurance agency in calling on undergraduate law programs to increase their emphasis on teaching generic, transferable skills such as communication, reasoning and analysis, problem-solving, teamwork and information technology. there are ongoing debates in the united kingdom about the movement toward outcomes-focused instruction and increased governmental regulation of legal education and the profession. some people believe that the lack of close coordination between the professional organizations and the universities and among the universities, creates inconsistencies in the preparation of law graduates for the vocational courses and fails to provide a sufficiently strong theoretical foundation for skills development.290 others point out that little attention is being paid by either the universities or the professional organizations to teaching values.291 another complaint is that the trend is too much toward vocational education instead of liberal education.292 and neither academics nor practitioners have conclusively determined what knowledge, skills, and values are the most important for lawyers to have before they begin practice. finally, some are worried that, although “[t]here is no reason to suppose that the more formally educated and certified new solicitors profession in england and wales will merely provide a re-run of [the] american experience,” the cumulative effect of the changes will erode professionalism and 142 journal of clinical legal education december 2004 290 boon, supra note 259, citing higher education in the learning society: report of the national committee (1997) ch. 9 (dearing report). 291 julian webb, ethics for lawyers or ethics for citizens? new directions for legal education, trasformative visions of legal education 134, 135 (blackwell 1998), published simultaneously in 25 j. law & soc. 134 (1998). 292 id. at 136; and boon, supra note 259, at 151. make new lawyers in england and wales “less inclined to defer to, or respect, collective customs and rules than the gentlemen’s profession, less inclined to think that their collective honour matters.”293 despite the concerns, uncertainties, and practical implementation problems being encountered in the united kingdom, at least lawyers and law teachers are making an effort to consider and debate how best to prepare lawyers for practice and to implement necessary changes. there has never been a serious, broad-based discussion about the preparation of lawyers for practice in the united states. hopefully, that will change. new initiatives in the united states a variety of organizations have the ability to influence legal education in the united states. the highest appellate court in each state is typically responsible for regulating the legal profession, including setting the criteria for admission to practice. although there is a federal court system that could establish its own standards, admission to practice in the federal courts is presumptive for lawyers who are admitted to practice in any state. in addition to the state supreme courts, four independent bodies have significant influence on legal education. the council of the section of legal education and admissions to the bar of the american bar association (the council) is recognized by the federal government as the official accrediting body for law schools. the council establishes and monitors compliance with accreditation standards. the association of american law schools (aals) sets additional standards for member schools of the association, and most law schools are members of the aals, or aspire to be. the law school admissions council (lsac) prepares and administers the law school admissions test (lsat) for prospective law students. the national conference of bar examiners (ncbe) develops components of the examinations for bar admission that each state administers, and it facilitates dialog among bar examiners throughout the country. pressures to reform the processes for preparing lawyers for practice are coming from a variety of sources, and the council, aals, lsac, and ncbe are reexamining, in one form or another, the validity of their tests and standards. although judicial challenges to the validity of bar examinations have failed, so far,294 it is evident that bar examinations in the united states do not measure a person’s ability to practice law competently.295 the society of american law teachers (salt) issued a report in 2002 concluding that the current bar examination “inaccurately measures professional competence to practice law” and “has a negative impact on law school curricular development and the law school admission process.”296 salt urged states to consider alternative ways to measure professional competence and license new lawyers. the evolution of legal education in the united states and the united kingdom: how one system became more faculty-oriented while the other became more consumer-oriented. 143 293 burrage, supra note 125, at 72. 294 see cecil hunt, guests in another’s house: an analysis of racially disparate bar performance, 23 fla. st. u. l.. rev. 721, 733–763 (1996) (criticizing judicial decisions involving challenges to the validity of bar examinations). 295 see id. and andrea curcio, a better bar: why and how the existing bar exam should change, 81 neb. l. rev. 363 (2002). 296 society of american law teachers statement on the bar exam, july 2002, 52 j. leg. ed. 446 (aals 2002) (also available at http://saltlaw.org/ positiononbarexam.htm). the appellate courts, acting through the conference of chief justices, are encouraging reforms. in the late 1990s, the conference of chief justices developed an action plan to improve the professionalism of lawyers in the united states.297 among its recommendations are that “the subject areas tested on the examination for admittance to the state bar should reflect a focus on fundamental competence by new lawyers” and “[t]he format of the bar examination should be modified to increase the emphasis on the applicants’ knowledge of applied practical skills, including office management skills.”298 the aba section, the aals, the ncbe, and the national conference of chief justices formed a joint working group on legal education and bar admission in 2003.299 the working group organized a conference focusing on bar examinations and law school assessment methods, however, the working group has not yet formulated any recommendations. the lsac is supporting a project to identify predictors of success in law school and in law practice. one objective is to identify job-related competencies of effective lawyers. the idea is that, if such competencies can be identified, perhaps the law school admissions test can be modified to determine if law school applicants possess or can acquire those competencies. in phase i which took two years, the project identified 26 factors that seem to constitute lawyering effectiveness and developed items for multiple behavioral rating scales for those factors to help appraise lawyers’ performance.300 in phase ii, which expected to continue until july 1, 2006, the project is developing tests that might predict competency on those factors.301 it appears that the council may finally be ready to require law schools to improve the preparation of students for practice. important changes to the accreditation standards were approved by the council at its meeting on august 7, 2004. an effort to derail the changes, led by law school deans, was defeated by a 9 to 8 vote. the proposed changes would require aba-approved law schools to provide each student with substantial instruction in legal analysis and reasoning, legal research, problem solving, oral communication, writing in a legal context, and “other professional skills generally regarded as necessary for effective and responsible participation in the legal profession.”302 an interpretation of the standard explains that “other professional skills” include trial and appellate advocacy, alternative methods of dispute resolution, counseling, interviewing, negotiating, problem solving, factual investigation, organization and management of legal work, and drafting. the revised standard also requires law schools to provide substantial opportunities for live-client or real-life practice experiences “appropriately supervised and designed to encourage reflection by students on their experiences and on the values and responsibilities of the legal profession, and the development of one’s ability to assess his or her performance and level of competence.” 144 journal of clinical legal education december 2004 297 conference of chief justices national action plan on lawyer conduct and professionalism (aba 1999). included in the same document is regulatory authority over the legal profession and the judiciary: the responsibility of state supreme courts: a report of the conference proceedings, rancho bernardo, california, march 1997. 298 id. at 32. 299 erica moser, president’s page, the bar examiner 4 (february 2003). 300 a preliminary list of competencies identified by the lsac project are currently posted on-line in an appendix of clea’s best practices project’s work product, at www://professionalism.law.sc.edu (look in the “news” section on the main page). 301 email from marjorie shultz on september 13, 2004 (on file with the author). 302 proposed standard 302(a), aba standards for approval of law schools. if the proposed changes are approved by the aba house of delegates in february or august, 2005, each law school will decide on its own how to comply with the amended standard. the council will eventually determine whether schools are in compliance through its reaccreditation process (the council sends an inspection team to each law school every seven years). if a school is not in compliance, the council will report this and direct the school to comply, but the council is unlikely to revoke the accreditation of a school that is not in compliance. thus, any real changes produced by the amended standard are likely to take a significant period of time to become evident. the carnegie foundation undertook a major study of legal education in 1999 to engage faculty, national organizations, and members of the legal profession in active dialog about how educational programs can be made better. intensive field work was conducted at a cross section of 16 american and canadian law schools during the 1999–2000 academic year, and data analysis and writing has been underway since then under the leadership of senior carnegie scholar judith wegner, a former dean and current professor of law at the university of north carolina. more details about the project are available on-line at http://carnegiefoundation.org/ppp/legalstudy/index.htm. independent of the other initiatives, the clinical legal education association (clea) undertook a project in 2001 to describe best practices for preparing lawyers for practice in the united states. the author of this article chairs the steering committee. although the project was initiated by and is operating under the auspices of the clea, it is proceeding in an open manner to provide a national forum for academics, lawyers, judges, bar admissions authorities, and others to engage collaboratively in a search for better ways to educate new lawyers. the most current draft of the project’s work product is posted on-line at http://http://professionalism.law.sc.edu (look in the “news” section on the main page). clea invites comments from anyone who is interested in improving the practice of law in the united states. clea also seeks opportunities to discuss the project at conferences and other forums. it plans to host a national conference about the best practices project during the spring of 2005 and to complete the document shortly thereafter. the best practices project is focusing on three aspects of legal education: setting educational goals, delivering instruction, and evaluating the effectiveness of programs of instruction. for the moment, at least, the project is focusing on how law schools can do a better job. it is not presently considering how the entire process for becoming a lawyer might be improved. the steering committee assumes that changing the entire process in fifty jurisdictions would be even more difficult to accomplish than reforming law schools. as much as one might prefer significant changes to the entire process, the state chief justices who regulate admission to practice have not given any sign that they are interested in restructuring the qualification process. there are two things that make the best practices project different from previous efforts to reform legal education in the united states. first, the project is grounding its work as much as possible on recognized sound educational theories and accepted standards of good educational practices. the second difference is that the work product should be useful as a tool for measuring the quality and effectiveness of a law school’s program of instruction. the most interesting aspect of the project is its consideration of the goals of legal education. one does not have to ask many questions to discover that legal educators in the united states do not have a clear vision of what law schools, or even specific courses in law schools, should be trying to accomplish. there is a lot of talk about teaching students how to think like lawyers, but the the evolution of legal education in the united states and the united kingdom: how one system became more faculty-oriented while the other became more consumer-oriented. 145 curriculums and examinations are largely focused on teaching and assessing doctrinal knowledge, not whether students know how to think like lawyers. even with respect to doctrinal knowledge, there is little agreement about what students should learn in law school. the aba accreditation standards do not even describe what the core curriculum of a law school should include. one of the key elements of the best practices project is its recommendation that u.s. law schools should switch from knowledge-based curriculums to outcomes-focused curriculums. it did not take much work to figure out the good sense of moving in that direction. in light of the ongoing work on outcomes-focused instruction in the united kingdom and other jurisdictions, the best practices project is recommending that law schools in the united states adopt the descriptions of outcomes that were proposed by the law society of england and wales in 2003. the descriptions seem to fit the needs of students in the united states as well as those in england and wales for the most part, and legal educators in the united states will be able to observe the law society’s programs for achieving and measuring those outcomes. law schools in the u.s. should also develop detailed descriptions of outcomes for each course in their curriculums, and the best practice project provides examples from the diploma in legal practice program at the glasgow graduate school of law. the best practices project is also encouraging u.s. law schools to reduce their reliance on the case method of instruction and to utilize other active learning techniques such as discussion, problems, simulations, and experiential learning. many u.s. law teachers already use techniques other than the case method, but the majority do not seem to be inclined to change. this is in part because the case method is how they were taught, it is the only technique they have ever used, and they are familiar with the materials. in other words, it would take a bit of time and effort for case method teachers to change what they teach and how they teach it. hopefully, the best practices project will succeed in convincing some people that there are good reasons to change, and others will find ways to motivate the remaining teachers to come along. the biggest challenge facing legal educators in the united states is to find ways to provide new lawyers enough supervised practice experience to protect their initial clients. as mentioned earlier, only two jurisdictions in the united states requires a new lawyer to spend any time working under the supervision of an experienced lawyer before becoming fully licensed. it is difficult to defend this practice. clinical teachers supervise third year law students who represent their first clients, and they see that very few are capable of performing competently without supervision. the u.s. system of legal education simply does not prepare students for practice. the steering committee for the best practices project easily concluded that it is absolutely essential for every law student to have some exposure to actual law practice during law school. there is no such requirement now. the project will also encourage law schools to expand opportunities for students to participate in clinical programs in which students actually provide legal services. it is still debating how to determine how much supervised practice it takes to protect new lawyers’ initial clients sufficiently. even if every law school provides every law student with a meaningful clinical experience, would this be enough? probably not. then, how can we protect our graduates’ initial clients, their employers, and the public in general? there seem to be two primary options. the first option is to limit the services that new lawyers can perform without supervision to those competencies that law schools agree to teach and bar examiners agree to assess. they could not become licensed to perform other tasks without supervision until they demonstrated their abilities through assessment. 146 journal of clinical legal education december 2004 the second option is to require all new graduates to associate with an experienced lawyer or a law firm for some period of time after finishing law school, that is, they should “serve articles” until they demonstrate, through assessment, an acceptable level of competence to practice without supervision. this may not sound very radical in the united kingdom, but it is a radical proposal to u.s. audiences. conclusion in considering the common and divergent histories of legal education in the united states and the united kingdom, we have seen that many decisions about legal education were made that had nothing to do with the merits of the most important question, “how should a democratic society prepare its lawyers for practice?” historical events, politics, world and local economic factors, greed, self-interests, prejudices, and personalities all played roles in shaping the very different systems we have today. there is no doubt that james bryce would change his opinion about of the relative merits of our systems of legal education. the united kingdom’s system is superior for a number of reasons, but especially because countries in the united kingdom do not allow new lawyers to ply their trade without gaining some practice experience under the supervision of experienced lawyers. despite the quality control issues associated with articling and pupillage/devilling, at least those traditions perform socialization functions that are absent in the united states except for law school graduates who join firms that take their mentoring responsibilities seriously. there are probably some new lawyers in the united kingdom who do not have the requisite knowledge, skills, and values to represent common people with common problems effectively and responsibly, but it is almost guaranteed that most lawyers who are admitted to law practice in the united states are not well-prepared to represent common people with common problems. they may be ready to begin law practice in large law firms or governmental agencies that have the time and resources to finish preparing them for practice, but they are not ready to undertake professional responsibility for individual clients’ legal problems. the united kingdom is moving even farther ahead of the united states today as it creates outcomes-focused programs of instruction that aim to develop the competencies that new lawyers need when they begin practice. our systems for educating and training lawyers have moved so far apart, can they ever be alike again? one would like to hope so. the most unlikely change in the u.s. would be to require college students to major in law. what is more likely is that u.s. schools will eventually adopt outcomesfocused programs of instruction. it makes sense to do this, others are showing us how to do it, and there are growing pressures on law schools to become more accountable. this change will not come easily or quickly, but i think it will come. we should also end our practice of giving new lawyers unrestricted licenses to practice law. there are viable alternatives that would provide more protection to consumers. it is puzzling why licensing authorities continue this harmful practice. perhaps in the near future governmental and consumer protection groups will focus on this issue and provide sufficient incentives for change. the major impediment to reforming legal education in the united states is the long-standing resistence of law teachers to reexamine legal education periodically and implement appropriate the evolution of legal education in the united states and the united kingdom: how one system became more faculty-oriented while the other became more consumer-oriented. 147 reforms. unfortunately, the legal profession, the judiciary, and state and federal governments have ceded control of legal education to the law teachers for all practical purposes. most law teachers are highly intelligent, well-meaning people, but they have are few incentives to change the content or structure of legal education. there are several entities that could provide those incentives, but so far none has shown a commitment to do so. hopefully, someone with the power to change legal education in the united states will develop a commitment to take action to protect the interests of students, clients, employers, and society in general, even if doing so would not serve the self-interests of law teachers. 148 journal of clinical legal education december 2004 editorial 1 james marson j.marson@shu.ac.uk this is our first edition of 2022 and the first since the removal of the remaining domestic covid-based restrictions in england. law clinics have, like so many of us, had to adapt to new ways of working whilst ensuring the invaluable service offered continued. similarly, new skills, new connections, valuable lessons learned and a reinvigorated approach to pedagogy have emerged. these themes are represented in this edition, a collection of articles which provide fascinating examples of the range of clinical activities taking place in respect of the development of students and their understanding of what a lawyer should be; the nature of legal pedagogy when forced into remote teaching methods during the pandemic; and returning to the theme of professional identity and the place of students in legal practise. we begin this edition with lawton, saban and whittam’s contribution on the developing of empathy through clinical legal education. this is a timely and significant exploration of a soft skill in lawyering, but one which is the subject of increasing study given the trajectory of lawyers’ understanding of the importance of developing and building relationships with their clients. here the authors use the basic empathy scale to determine a cohort of students’ self-reported empathy levels following participation in law clinics in the uk, and offer a useful addition through a gender analysis of this reporting. in an interesting conclusion, the authors explain how operating in a clinical setting can both improve and diminish empathy levels amongst students. however, a statistically significant level of students report increased empathy from their pro bono clinical work, with female respondents more likely to self-report higher empathy scores. further, the authors provide a valuable recommendation of how to incorporate empathy into the learning outcomes of cliniceditorial 2 based modules, demonstrating its value to the students’ development and reflecting the bar standards board’s professional statement for barristers. the edition continues with jenni whelan’s paper where an inside/out pedagogy is presented, seeking to develop students’ awareness of personal and interpersonal attributes (the inside of the approach) alongside a framework for purposive engagement grounded in improving access to justice (the out) in a legal clinic setting in australia. this work builds upon brooks’ ‘wholehearted lawyering’ teaching principles by adding vulnerability theory and therapeutic jurisprudence as mechanisms for the purposeful engagement with legal systems and facilitating of greater access to justice, of legal actors. the study concludes that wholehearted lawyering is a teachable core competency that extends beyond the remit of a law clinic and that each of the students who engaged with the clinic work further developed the personal, interpersonal, and relational dimensions of their professional identities. they moved out of their comfort zones to challenge themselves when they need not have taken this course of action, demonstrating the impact the approach had on their personal, and professional development. we then move to a practice report from michal urban with an implementation and assessment of a flipped classroom pedagogic approach, a consequence of the remote learning protocols many in academia faced during the national lockdown measures from 2020. here, the forced distance between the students, their colleagues in the virtual classrooms and the tutor often resulted in a ‘trap of silence’ – all too often filled by increased talking by the tutor leading that session. michal, using personal experiences and those from others across disciplines in academia, explains the advantages and disadvantages of adopting a flipped classroom, whilst providing a series of questions for personal reflection of any academic wishing to embark on this mode of study. ultimately, face-to-face sessions enable easier collaboration and the fostering of more immersive discourse, yet the e-learning support provided to editorial 3 students during virtual teaching programmes is a feature which michal intends to maintain even when returning to more standard forms of teaching. michal concludes with reference to warren binford who summarizes her essay, how to be the world’s best law professor, by asserting that we as educationalists need to ‘rethink our teaching methods, our students’ study methods, even our law school’s curriculum.’ in the practice of critical reflection, these are sage words. our final contribution is from lucy blackburn who, as part of a working group from cleo, has created a draft guide to law clinics which may be subject to a claim for qualifying work experience due to a student’s time at a qualifying law clinic. in our from the field section, guidance, commentary and instruction are offered to clinics and this resource will make an invaluable contribution to senior management and those organising law clinic work, not only as to their obligations, but also as to advice on claiming these hours for students who participated in live-client work in university law clinics. this is a new and developing area, fraught with potential difficulties for all parties, hence the information provided in this submission is of particular importance. lastly, we would like to draw to your attention the latest episode of the clinical legal education podcast (https://clinicallegaleducationpodcast.wordpress.com) where our hosts elaine gregersen and molly doyle interview professor amy lyn wallace of new york law. the topics discussed include street law clinics, the impact of the pandemic and amy’s clinic research. if there is anything that our guests cover that resonates with you, or if you wish to discuss the podcasts further, please do not hesitate to get in touch with elaine or molly via the twitter account @ijcle. https://clinicallegaleducationpodcast.wordpress.com/ reviewed article 146 towards the implementation of the paris climate change agreement 2015: opportunities and challenges for the network of universities legal aid institutions (nulai) nigeria ngozi chinwa ole and onyekachi eni* 1. introduction clearly, climate change is the most debilitating global environmental problem of all times.1 ‘from shifting weather patterns that threaten food production, to rising sea levels that increase the risk of catastrophic flooding, the impacts of climate change are global in scope and unprecedented in scale…’2 for nigeria, the negative impacts of climate change are felt in the major sectors of the economy. persistent flooding, droughts, and severe prolonged dry weather conditions have stifled agricultural friendly seasons into non-existence.3 the implication of the latter is low agricultural productivity and, the attendant risk of hunger in nigeria.4 what is more, severe *ngozi chinwa ole is a lecturer in law at redeemers university, nigeria and onyekachi eni is a lecturer at alex ekwueme federal university, nigeria. 1 jon naustdalslid, ‘climate change-the challenge of translating scientific knowledge into action’ (2011) 18(3) international journal of sustainable development and world ecology 243. 2 united nations, ‘climate change’ (2020) <https://www.un.org/en/sections/issues-depth/climatechange/> accessed 7th january, 2020. 3 ann ogbo and others, ‘risk management and, the challenges of climate change’ (2013) 41(3) j hum ecol 221, 223. see pao odjugo, ‘general overview of climate change impacts in nigeria’ (2010) 29(1) j hum ecol 47,55. 4 osuafor a m and others, ‘the impact of climate change on food security in nigeria’ (2014) 3(1) international journal of science and technology 209, 212-216. see also emeka e obioha, ‘climate reviewed article 147 weather conditions occasioned by climate change is exacerbating increased infectious diseases, injury and psychological disorder.5 the negative impact of climate change also undermines the supply and availability of electricity in nigeria.6 scientific data posits that the emission of carbon dioxide is the primary contributor to the global problem of climate change.7 the bulk of the emissions arise from the global electricity sector.8 in nigeria, the emission of greenhouse gases (ghgs) from unsustainable practises in land use and through the generation of electricity from fossil fuel sources contributes the most to the global problem of climate change.9 thus, mitigating climate change entails a paradigm shift from fossil fuel-based electricity to cleaner electricity such as renewable energy-based electricity.10 also, mitigating climate change will not be complete without emission reduction strategies in the agriculture and land sector.11 variability, environment change and food security nexus in nigeria’(2009) 26 (2) journal of human ecology 107. 5 rasak bamidele, ‘conceptualizing the relationship between climate change and human health in nigeria’ in panoply of readings in social sciences; lesson for and from nigeria (covenant university press 2013) 5. 6 akinyemi opeyemi and others, ‘energy supply and climate change in nigeria’ (2012) 7 <https://mpra.ub.uni-muenchen.de/55820/1/mpra_paper_55820.pdf> accessed 7th january 2020. 7 lamiaa abdallah and tarek el-shennawy, ‘reducing carbon dioxide from the electricity sector using smart electricity grid’ (2013) journal of engineering 1, 4. 8 ibid. 9 stephen oyedele adewale and others, ‘ electricity sector’s contribution to greenhouse gas emissions’ (2017) 28(6) management of environmental quality an international journal 917, 926. see a i achike and a o onoja, ‘greenhouse gas emission determinants in nigeria: implications for trade, climate change mitigation and adaptation policies’ (2014) 4(1) british journal of environment and climate change 83, 87. 10 steven ferrey, ‘the failure of international global warming regulation to promote needed renewable energy’ (2010) 37(1) boston college environmental affairs law review 68 11 sarah j scherr and sajal sthapit, mitigating climate change through food and land use (world watch institute 2009) 5-38. reviewed article 148 the paris climate change agreement (paris agreement) 201512 is the current international instrument that coordinates global responses to the problem of climate change.13 it stipulates ‘long-term global climate goals and short-term procedural steps that outline how these goals should be achieved’.14 the long term mitigation goal is to ‘strengthen the global response to the threat of climate change . . . holding the increase in the global average temperature to well below 2◦ c above preindustrial levels and pursuing efforts to limit the temperature increase to 1.5◦ c above pre-industrial levels ... ’ 15 consequently, member states are under obligation to prepare, communicate and implement successive nationally determined contributions (ndcs) to achieve the mentioned objective.16 it is expected that such communicated ndcs should contain low greenhouse gas emission strategies for mitigating climate change.17 12 the paris climate change international agreement 2015 (adopted 12 december 2015, entry into force date is 4 november 2016). it is a treaty within the context of the vienna law of treaties 1969, article 2(1). see also antto vihma, ‘climate of consensus: managing decision making in the un climate change negotiations’ (2015) 24 (1) reciel 57, 60; daniel bodansky, ‘the legal character of the paris agreement’ (2016) 2 reciel 142, 143. 13 the united nations framework convention on climate change (unfccc) 1992 was the first international treaty for addressing the problem of climate change. it is the umbrella agreement that gave birth to the kyoto protocol 1997 and, subsequently the paris climate change agreement 2015. see the united nations framework convention on climate change 1992 (adopted 9 may 1992, entered into force 21 march 1994), fccc/informal/84(unfccc); david freestone, ‘the united nations framework convention on climate change, the kyoto protocol, and the kyoto mechanisms’, in david freestone and charlotte streck (eds), legal aspects of implementing the kyoto protocol mechanisms: making kyoto work (oxford university press, 2008) 4. 14 sylvia i. karlsson-vinkhuyzen and others, entry into force and then? the paris agreement and state accountability’ (2018) 18 (5) climate policy 593. 15 the paris climate change agreement 2015 (n 12) art 2 (1). 16 ibid, art 4 (2). 17 ibid, art 4 (19). the use of the word ‘should’ implies that member states are expected rather than mandated to include the low greenhouse gas emission strategies as part of their n their ndcs. see rajamani writes that the use of the word ‘should’ in the above provision denotes the expectation of performance rather than the creation of a legal obligation. see lavanya rajamani, ‘the 2015 paris reviewed article 149 the nigerian government is a signatory to the paris agreement 2015.18 as such, it has communicated core actions that will precipitate the reduction of ghgs emission in the electricity, agriculture and land-use sector by 2030.19 while the measures provided for in the nigerian ndcs are commendable, its efficacy in mitigating climate change is contingent on its actual implementation. the nigerian government submitted its biennial update in 2018, which shows that little has been done in implementing the proposed measures in nigerian ndcs.20 on the face of the biennial update, some commentators are pessimistic that the nigerian ndcs may not be achieved by 2030.21 it is fitting to mention that the paris agreement does not expressly provide for a punitive enforcement mechanism.22 however, its provisions give rise to some political and legal tools which some authors posit will secure the successful agreement: interplay between hard, soft and nonobligations’ (2016) 28 journal of environmental law 331, 343. 18 unfccc, ‘paris agreement: status of ratification’ (2020) <https://treaties.un.org/pages/viewdetails. aspx?src=treaty&mtdsg_no=xxvii-7-d&chapter=27> accessed 3rd july 2020. see also ‘nigeria is set to implement the paris agreement with the launch of green bonds’ (january 17th 2017) ventures africa; abuja . 19unfccc, ‘nigeria ndc’ (2015) <www.unfccc.int/submissions/ndc/published%20documents/nigeria/1/ approved%20nigeria's%20indc_271115.pdf > accessed 23 february 2020. 20 unfccc, ‘nigeria: first biennial update report’ (2018) <www4.unfccc.int/sites/submissions staging/nati onalreports/documents/218354_nigeria-bur1-1-nigeria%20bur1_final%20(2).pdf> accessed 11th march 2020. 21 priscilla offiong, ‘nigeria’s biannual update report and greenhouse gas inventory report provide useful information on the country’s emission levels’ (2020) < www.climatescorecard.org/2019/06/nigerias-biannual-update-report-and-greenhouse-gas-inventoryreport-provide-useful-information-on-the-countrys-emission-level s/> accessed 22nd march 2020. 22 richard falk, ‘voluntary international law and, the paris agreement’ (2016) < https://richardfalk.word press. com/2016/01/16/voluntary-international-law-and-the-parisagreement/> accessed 12th february 2020. https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=xxvii-7-d&chapter=27 https://search.proquest.com/pubidlinkhandler/sng/pubtitle/ventures+africa/$n/2040504/docview/1859912464/fulltext/61fce45cf2a84857pq/1?accountid=8155 http://www.unfccc.int/submissions https://www4.unfccc.int/sites/submissions%20stag%20ing/nationalreports/documents/218354_nigeria-bur1-1-nigeria%20bur1_final%20(2).pdf https://www4.unfccc.int/sites/submissions%20stag%20ing/nationalreports/documents/218354_nigeria-bur1-1-nigeria%20bur1_final%20(2).pdf https://www.climatescorecard.org/2019/06/nigerias-biannual-update-report-and-greenhouse-gas-inventory-report-provide-useful-information-on-the-countrys-emission-levels/ https://www.climatescorecard.org/2019/06/nigerias-biannual-update-report-and-greenhouse-gas-inventory-report-provide-useful-information-on-the-countrys-emission-levels/ reviewed article 150 implementation of the ndcs of member states including nigeria’s.23 the tools are; a global stocktake by the conference of the parties24, a compliance mechanism and, a transparency framework which will generate peer pressure from appropriate quarters including civil societies.25 while the global stocktake and compliance mechanism are powerful in their strength, the transparency framework is reputed to be ‘the backbone of the paris agreement’.26 the paris agreement provides for the establishment of a transparency framework to promote the effective implementation of its provisions.27 a purpose of the framework is to provide an avenue for member states to share such information, necessary to track progress made in the implementation of the ndcs.28 it is anticipated that the information provided in the transparency framework will provide the required arsenal for non-party stakeholders to propel more ambitious 23 daniel gross, ‘the paris agreement is the shove the world needs’ (14 december, 2015) <http://www.slate. com/articles/business/moneybox/2015/12/the_paris_agreement_won_t_punish_countries_that_fall_sh ort_but_it_s_still.html> accessed 12th february 2020. 24 the paris agreement 2015 (n 12) art. 7 (14). see also daniel l klein and others (eds), the paris agreement on climate change: analysis and commentary (oxford university press 2017) 79. 25 romain weikmans and others, ‘transparency requirements under the paris agreement and their (un)likely impact on strengthening the ambition of nationally determined contributions (ndcs)’ (2019) climate policy 2-3. 26yamide dagnet and others, ‘staying on track from paris: advancing the key elements of the paris agreement’ (2016) world resources institute working paper 25 <www.wri.org/ontrackfromparis> (accessed 26 february 2020). 27 the paris agreement (n 12) art 13 (1). see also harald winkler and others, ‘transparency of action and support in the paris agreement’ (2017) 7 (17) climate policy 853. 28 the information is typically shared in the ndc registry in the unfccc website. see unfccc, ‘nationally determined contribution’ <https://unfccc.int/process-and-meetings/the-parisagreement/nationally-determined-contributions-ndcs#eq-5> accessed 14th february 2020. reviewed article 151 actions from member states for the implementation of ndcs.29 notably, the paris decision 201530 was the very apparatus used to birth the paris agreement and, it contains a detailing of some of its provisions.31 it spells out additional roles for nonparty stakeholders, including collaborative actions with member states in the mitigation of climate change.32 they are also expected to scale up their actions in addressing the problem of climate change.33 the term ‘non-party stakeholders’ was not defined in the paris agreement or the paris decision.34 however, the paris decision gave examples of ‘non-party stakeholders’ to include ‘civil society (non-governmental organisation (ngo)35)’.36 the network of university legal aid institutions (nulai) nigeria is a ‘nongovernmental, non-profit and non-political organisation committed to promoting clinical legal education, legal education reform, legal aid and access to justice’.37 29 sylvia karlsson-vinkhuyzen and others, ‘entry into force and then? the paris agreement and state accountability’ (n 14) 595. 30 the paris climate change decision, unfccc/cp/2015/10/ad.1. see also ngozi chinwa ole and ruth akinbola, ‘addressing the capacity deficiency in the nigerian off-grid renewable electricity: the place of the international climate change regime’ (2019) 2 redeemer’s university law journal 35, 51. 31 daniel bodansky, ‘the paris climate change agreement: a new hope’ (2016) 110 (2) the american journal of international law 288 32 the paris climate change decision (n 30) para 117-118. 33 ibid. 34 the paris agreement (n 12); the paris climate change decision (n 30) para 117-118. 35 c k vandyck, concept and definition of civil society sustainability (washington dc cfsis 2017) 1. see also david lewis, ‘civil society and the authoritarian state: cooperation, contestation and discourse’ (2013) 9(3) journal of civil society 327. 36 ibid, preamble. 37 nulai, ‘about us’ (2020) < https://nulai.org/who-we-are/> accessed 16th february 2020. https://nulai.org/who-we-are/ reviewed article 152 going by this definition, nulai readily fits into the meaning of non-party stakeholder under the paris decision. in the light of the above, this paper examines the role that nulai can play in the successful implementation of the paris agreement 2015 in nigeria, having regard to the recognised role of civil societies in this context. it will be argued that nulai can use the instruments of litigation, engagement with relevant stakeholders and adoption of mitigation measures to catalyse the successful implementation of the agreement in nigeria. on the one hand, there are possible limitations to the role of nulai in this context. one of such limitations is the absence of any justiciable right emanating solely from the paris agreement 2015 and, nigerian ndcs. another limitation is the low level of awareness of the needed climate change law among student law clinicians and staff of nigerian universities. thus, the paper will conclude by making recommendations on how to surmount the identified problems. one such recommendation will be the use of human right-based approached litigation to secure the enforcement of the provisions of the paris agreement and, the nigerian ndcs. in the light of the above, the paper is sub-divided into four sections. section one is the introduction. section two contains a summarised analysis of the provisions of the paris agreement 2015 and its implementation tools. section three contains an analysis of the role of civil societies in the implementation of the agreement. section reviewed article 153 four contains an analysis of the possible roles and challenges that nulai can play in the light of the analysed role of civil societies in the agreement. 2. the paris agreement 2015: measures and implementation tools the paris agreement 2015 was made under the umbrella of the united nations framework convention on climate change (unfccc) 1992.38 the later was the first international instrument that coordinates the global responses to the problem of climate change.39 regrettably, the unfccc 1992 did not garner the needed responses for the mitigation of climate change.40 under the unfccc 1992, the nigerian government did not commit to any meaningful action for the mitigation of climate change.41 it was on the later basis among others, that the paris agreement was adopted as a part of the paris legal outcome.42 the paris legal outcome is a conglomerate of the paris agreement and, the paris decision.43 the paris decision was the resolution of member states of the unfccc 1992, which birthed the paris agreement.44 while the paris agreement is a treaty within the context of the vienna law of treaties 1969 with its provisions being fully binding, the paris decision is 38 michele stua, from the paris agreement to a low-carbon bretton woods: rationale for the establishment of a mitigation alliance (springer 2017) 10,11. 39 eike albrecht and others, implementing adaptation strategies by legal, economic and planning instruments on climate change (springer 2014) 56. 40 the failure of the unfccc 1992 has been a subject to various commentaries. see doaa abdel motaal, ‘durban: a success and a failure’ (2012) 42(2) environmental policy 85. 41 ngozi chinwa ole, ‘the paris agreement as primer for developing the nigerian off-grid solar electricity’ (2018) 26(3) african journal of international and comparative law 426, 430. 42 susana b. adamo, ‘about mitigation, adaptation and the unfccc’s 21st conference of the parties’ (2015) 32 (3) r. bras. est. pop. (rio de janeiro) 609. 43 ibid. 44 daniel bodansky, ‘the legal character of the paris agreement’ (n 12) 143. reviewed article 154 not.45 regardless, recourse can be validly made to its provisions for a detailing of the paris agreement.46 the paris agreement mandates member states to prepare, communicate and maintain successive nationally determined contributions which will contain mitigation measures in the context of the objective of the treaty.47 it is expected that all member parties should have communicated their ndcs by 2020.48 subsequent ndcs which must represent a progression of previous efforts to mitigate climate change should be communicated at least every five years.49 consequent upon this, the nigerian government communicated its ndcs in 2015.50 the ndcs stipulate several actions for the mitigation of climate change in the relevant sector, particularly in land use (agriculture) and electricity.51 first, it provides for the replacement of orthodox gas electricity technologies with modern gas electricity 45 the vienna convention on law of treaty 1969 (adopted 23 may 1969, entered into force 27 january 1980), article 2(1). see also antto vihma, ‘climate of consensus: managing decision making in the un climate change negotiations’ (2015) 24 (1) reciel 57, 60. 46 ibid, art 31.the mentioned article, provides that a treaty can be interpreted in the context of any instrument made by two or more of the parties in connection to the treaty. see also yves le bouthhiller, ‘vienna convention of 1969’ in olivier corten and others (eds), the vienna convention on law of treaties: a commentary 1 (oxford university press 2011) 846. 47 the paris agreement (n 12) art 4(1) and (2). 48 the paris decision (n 30). 49 the paris agreement (n 12) art 4(3) and (9). 50 the ndc was previously communicated as intended-ndc in 2015 but it became ndc in 2017 following the ratification of the paris agreement by the nigerian government. see olumide idowu, ‘nigeria develops third paris agreement national communication’ (2018) <www.climatescorecard.org/2018/09/nigeria-develops-third-paris-agreement-nationalcommunication/> accessed 19th february 2020. 51 j akinbunmi and c akinbunmi, ‘climate change mitigation and adaptation studies in nigerian universities: achievements, challenges and prospects’ in walter lee filho (eds) climate change research at universities: addressing the mitigation and adaptation gaps (springer 2017) 139. http://www.climatescorecard.org/2018/09/nigeria-develops-third-paris-agreement-national-communication/ http://www.climatescorecard.org/2018/09/nigeria-develops-third-paris-agreement-national-communication/ reviewed article 155 technologies.52 secondly, it proposes that cost-efficient renewable energy solutions will drive rural electrification.53 in furtherance to the latter, the government aims to develop off-grid solar photovoltaic electricity options to drive rural electrification.54 thirdly, energy efficiency measures should be adopted widely, including in the electricity sector, to mitigate 179 million tonnes of ghgs. additionally, the government proposes to end the flaring of ghgs through the generation of electricity from gas sources.55 it is proposed that the government will promote smart and sustainable agricultural practises to the extent that will mitigate the emission of 74 million tonnes of ghgs.56 the actions are summarised in the table below: 52 ibid, 3. this is to the extent that will reduce greenhouse gas emission by 102 million tonnes. 53 ibid, 2. the proposed solar photovoltaic will be to the extent that will reduce the emission of ghgs in the electricity sector by 31 million tonnes. 54 ibid. for more commentaries on nigeria’s ndc, see emem c onyejelam, ‘building an effective implementation process to nigeria’s climate change policies and intended nationally determined contributions (indc)’ (2016) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2843279> assessed 11th february 2020. 55 ibid. see philip antwi-agyei, ‘alignment between national determined contributions and the sustainable development goals for west africa’ (2018) 18 climate policy 1296. 56 ibid. reviewed article 156 table 1: mitigation measures in nigerian ndc57 mitigation measures potential ghgs emission reduction (million tonnes per year up till 2030) 1. develop efficient gas electricity strategies 102 2. energy efficiency strategies 179 3. end gas flaring 64 4. climate smart agriculture 74 5. reduce transmission losses 26 6. develop renewable energy 31 as earlier stated, the provisions of the paris agreement yield some political and social tools which commentators are optimistic would facilitate the enforcement of the ndcs, including nigeria’s.58 these tools are; global stocktake, compliance mechanism and transparency framework.59 while the global stocktake and 57 the nigerian ndc (n 19) 3. 58 ngozi chinwa ole, ‘the paris agreement 2015 as a primer for developing nigerian off-grid solar electricity’ (n 41) 432. see also daniel gross, ‘the paris agreement is the shove the world needs’ (14 december 2015), <www.slate.com/articles/business/moneybox/2015/12/the_paris_agreement_won_t_punish _countries_that_fall_short_but_it_s_still.html> accessed 12 february 2020. 59 lavanya rajamani, ‘the 2015 paris agreement: interplay between hard, soft and nonobligations’ (n 17) 331 reviewed article 157 compliance mechanism is not within the purview of this article, it will be summarily discussed in the light of its role in securing the enforcement of the nigerian ndcs. the paris agreement provides for the global stocktake by vesting on the conference of member states (cop), the mandate to periodically review the collective progress made in the implementation of their individual ndcs.60 the first stocktake is scheduled to be held by 2023 and subsequently every five years.61 there is a ‘good faith expectation that nigeria should be influenced by the outcome of such stocktake to voluntarily scale up efforts to develop the targeted off-grid solar electricity’ and other mitigation measures.62 the latter is especially in the context where the stocktake shows that collective efforts of member states are inadequate in the expectation of mitigating the temperature to well below 2 0 c.63 however, the effect of the global stocktake in facilitating the enforcement of nigeria’s ndcs is whittled down by some other factors which have been discussed by the author in another publication.64 one of such is that it is ‘authorised to consider “collective” progress, thus insulating individual nations from any assessments of adequacy in relation to their actions’.65 60 the paris agreement (n 12) art. 14 (2). 61 ibid. 62 ngozi chinwa ole, ‘the paris agreement as primer for developing the nigerian off-grid solar electricity’ (n 41) 441. 63 ibid. 64 ibid. 65 rajamani lavanya, ‘ambition and differentiation in the 2015 paris agreement: interpretative possibilities and underlying politics’ (2016) 65 iclq 493, 504. reviewed article 158 a compliance mechanism comprising of 12 members is also established by the agreement.66 it provides that the mechanism shall be ‘expert-based and facilitative in nature and function in a manner that is transparent, non-adversarial and nonpunitive.’67 where a member state like nigeria is not implementing all or some part of its ndcs as proposed, the mechanism may indicate it in its overall report to the cop.68 it is argued that in the event of such report, the other member states in the cop might exert peer pressure on the defaulting state to the extent that will nudge them to do the needful to implement their ndcs.69 however, the strength of the compliance mechanism is whittled down by the general absence of an express provision in the paris agreement mandating member states to implement their ndcs.70 consequently, there is no legal footing for such peer pressure from other member states to generate a strong force that will compel a recalcitrant nigerian government, for example, to implement its ndcs.71 the final tool of implementation created by the provisions of the paris agreement is transparency. the paris agreement establishes the transparency framework to 66 the paris agreement (n 12) art 15(1). 67 the paris decision (n 30) article 15(2). see christina voigt, ‘the compliance and implementation mechanism of the paris agreement’ (2016) 25 (2) reciel 161. 68 achala abeysinghe and subhi barakati, the paris agreement: options for an effective compliance and implementation mechanism (iied press 2016) 92. 69 sebastian oberthur, ‘options for a compliance mechanism in a 2015 climate agreement’ (2014) 1–2 climate law 34 and 42. 70 lavanya rajamani, ‘the 2015 paris agreement: interplay between hard, soft and nonobligations’ (n 17) 337, 354. 71 alexander zahar, ‘why the paris agreement does not need a compliance mechanism’ (september 2016) <https://poseidon01.ssrn. com/delivery.php?id=876127020083071028117022119087028098.pdf> accessed 20 feb. 2020. reviewed article 159 enhance the effective implementation of its provisions.72 the detailed guidelines for transparency will be adopted in 2020.73 under the transparency framework, nigeria is expected to provide all the necessary information to enable the tracking of progress for the implementation of the ndcs on a biennial basis.74 such information include the ghgs emission by sources and removals, all such progress recorded in implementing the measures outlined in the ndcs, and the flow of support from external sources.75 nigeria submitted its first biennial update on the implementation of the ndcs in 2018.76 the biennial updates, including the one submitted by nigeria is displayed in the unfccc public registry.77 the updates will also inform the collective assessment of progress made in the implementation of the global stocktake.78 more importantly, the information on progress will galvanise the activities of nonparty stakeholders’ particularly civil societies for the implementation of its provisions.79 the global stocktake has already been discussed in this section. given the focus of this paper, some of the provisions on transparency will be discussed in detail alongside the role of civil societies in the implementation of the paris agreement. 72 the paris agreement (n 12) art 13 (1). 73 the paris agreement (n 12) art 13 (13). see unfccc, ‘transparency of support under the paris agreement’ (2020) < https://unfccc.int/topics/climate-finance/workstreams/transparency-of-supportex-post/transparency-of-support-under-the-paris-agreement> accessed 3rd march 2020. 74 ibid, art 13 (5). 75 ibid, art 13 (7). 76 unfccc, ‘nigeria: first biennial update report’ (n 20). 77 ibid, art 4 (9), and art 4 (12). 78 ibid, art 13 (6). 79 arunabha ghosh and sumit s prasad, ‘shining the light on climate action: the role of non-party institutions’ (2017) fixing climate governance series paper no. 6 <www.cigionline.org /publications/shining-light-climate-action-role-non-party-institutions> accessed 22nd february 2020. https://unfccc.int/topics/climate-finance/workstreams/transparency-of-support-ex-post/transparency-of-support-under-the-paris-agreement https://unfccc.int/topics/climate-finance/workstreams/transparency-of-support-ex-post/transparency-of-support-under-the-paris-agreement reviewed article 160 3. the role of civil societies in the implementation of the paris agreement the point that non-party stakeholders have a role to play in the implementation of the paris agreement in nigeria has previously been made. the term ‘non-party stakeholders’ was defined in the paris decision to include civil societies.80 the role of civil societies in the implementation of the paris agreement is tripartite. in the first instance, civil societies can use various political and legal tools to nudge a member state like nigeria to vigorously deploy measures for the implementation of their ndcs81. additionally, civil societies can also push for the adoption of more ambitious measures for the mitigation of climate change in a member state like nigeria in subsequent ndcs.82 importantly, they are encouraged to adopt measures, independently, for the mitigation of climate change.83 these will be discussed accordingly. the bedrock of transparency is that member states including nigeria, will make available sufficient information on progress made concerning the implementation of their ndcs in the unfccc public register.84 on the strength of such publication, commentators posit that civil societies and other non-party actors can propel member states like nigeria to adopt more ambitious actions for the implementation 80 the paris decision (n 30) preamble, para 15. 81 harro van asselt, ‘the role of non-state actors in reviewing ambition, implementation, and compliance under the paris agreement’ (2016) 6 climate law 91, 107. 82 thomas hale, the role of sub-state and non-state actors in international climate processes (chatham house 2018) 3-5. 83 the paris decision (n 30) para 117. 84 the paris agreement (n 12) art 13 (7). reviewed article 161 of their ndcs.85 while the latter position was not expressly provided for in the paris agreement, it can be gleaned from its provisions which is that the transparency framework shall be built on the past experiences from the implementation of the unfccc.86 a core attribute of the transparency framework under the unfccc regime was the active role of civil societies in stimulating member states to do more in the area of the implementation of their ndcs.87 the tool at the disposal of civil societies includes litigation, lobbying, and engagement with relevant stakeholders etc.88 another role of civil societies is to nudge member states to scale up mitigation measures in subsequent ndcs. the paris agreement provides that member states shall submit subsequent ndcs which will be a progression of the first ndc and shall represent their highest possible ambition.89 it is argued that civil societies can use tools such as lobbying and litigation to harness the highest possible measures for climate change mitigation from member states in subsequent ndcs.90 the latter is already the case in some advanced climes. in the case of urgenda foundation and 886 85 thomas bernauer and others, ‘could more civil society involvement increase public support for climate policy-making? evidence from a survey experiment in china’ (2016) 40 global environmental change 10. 86 the paris agreement (n 12) art 13 (3) and (4). 87 steinar andresen and lars h. gulbrandsen, ‘the role of green ngos in promoting climate compliance’ in implementing the climate regime: international compliance (earthscan, 2005) 178– 181; eric dannenmaier, ‘the role of non-state actors in climate compliance’, in olav schram stokke et al., promoting compliance in an evolving climate regime (cambridge university press, 2012). 88 ngozi chinwa ole, ‘the paris agreement 2015 as a primer for developing nigerian off-grid solar electricity’ (n 41) 445-447. 89 the paris agreement (n 12) art 4(2) and (3). 90 harro van asselt, ‘the role of non-state actors in reviewing ambition, implementation, and compliance under the paris agreement’ (n 81) 107. reviewed article 162 citizens v. the state of the netherlands91 (urgenda foundation), a civil society succeeded in getting a court declaration to the effect that the dutch government was liable to keep their emissions to below 25% by 2020, a level that will reflect what is expected of developed countries in international climate science.92 in nigeria, some civil societies are already involved in engaging with relevant government stakeholders to push for more ambitious mitigation measures. for example the civil society legislative advocacy centre (cislac) is currently engaging relevant stakeholders to facilitate the adoption of laws on climate change mitigation.93 finally, the paris decision encourages civil societies to adopt measures for the mitigation of climate change. it provides that the member party ‘welcomes the efforts of non-party stakeholders to scale up their climate actions…’94 and encourages member states to ‘work closely with non-party stakeholders to catalyse efforts to strengthen mitigation…actions’.95 the last arm of this provision is to ensure that the activities of non-party stakeholders including civil societies are coordinated 91 [2015] c/09/456689/ha za 13-1396. see the judgment available at <http://uitspraken.rechtspraak.nl/inzien document? id=ecli:nl:rbdha:2015:7196a> accessed 4th march 2020. the possibility of this strategy has been considered in light of the paris agreement; see sara stefanini, ‘next stop for paris climate deal: the courts’ (2016) politico, 11 <http://www.politico.eu/article/parisclimate-urgenda-courts-lawsuits-cop21/> (accessed 4 february 2020). 92 ibid. see also k. j. graaf and j. h. jans, ‘the urgenda decision: netherlands liable for role in causing dangerous global climate change’ (2015) 25 journal of african law 517. 93 like the civil society legislative advocacy centre (cislac) is currently involved in engaging relevant stakeholders to facilitate laws on environmental protection and conservation which includes climate change. see cislac, ‘about us’ (2020) < https://cislacnigeria.net/page/2/> accessed 4th march 2020. 94 the paris decision (n 30) para 117. 95 ibid, para 118. https://cislacnigeria.net/page/2/ reviewed article 163 and counts in the overall implementation of the ndcs.96 thus, civil societies can initiate and implement measures for the mitigation of climate change. interestingly, the paris decision established some form of transparency mechanism called ‘nonstate actor zone for climate action (nsazca)’97. in the latter platform, civil societies are expected to register major climate change mitigation projects initiated and implemented at the national level.98 thus, the activities of civil societies and other non-party stakeholders can be aggregated and monitored in the light of the overall mitigation target of holding the global temperature to well below 2 0 c.99 the nsazca indicates that three civil societies are already implementing climate change mitigation measures in nigeria.100 the three civil societies are center for initiative and development (cid), nma eunice owenson foundation and, sanitation and hygiene education.101 in the light of the analysed roles of non-party stakeholders, the next section contains an analysis of challenges and opportunities that the discussed roles present for nulai. 96 harro van asselt and thomas hale, ‘maximizing the potential of the paris agreement: effective review in a hybrid regime’ (2016) <https://www.jstor.org/stable/resrep02776> accessed 4th march 2020. 97 the paris decision (n 30) para 117. see unfccc, ‘global climate action’ (2020) <https://climateaction. unfccc.int/#ng> accessed 4th march 2020. 98 ibid. see sander chan and wanja amling, ‘does orchestration in the global climate action agenda effectively prioritize and mobilize transnational climate adaptation action?’ (2019) 19 int environ agreements 429, 435. 99 ibid. see the paris agreement (n 12) art 2. 100 unfccc, ‘global climate action’ <https://climateaction.unfccc. int/#ng> accessed 4th of march 2020. 101 ibid. reviewed article 164 4. nulai: opportunities and challenges the network of university legal aid institution (nulai) is a civil society and, a conglomerate of law clinics of nigerian universities committed to the promotion of clinical legal education, legal aid and access to justice.102 the term clinical legal education has been by ojukwu as ‘an experiential method of learning that enables law students to learn practice skills while in the same learning process providing legal assistance in circumstances where justice so demands’.103 on the other hand, law clinics refer to the service hub or physical facilities that affords law students the opportunities to demonstrate and imbibe core law attributes while aiding access to justice.104 there are currently about 43 law clinics domiciled in forty-three universities105 and registered with nulai.106 the law clinics usually are managed internally by a set of student clinicians under the supervision of law teachers within the university where it is domiciled.107 the recurrent focal points of most law clinics are prisoners/pre-trial detainee rights; child rights; human rights; freedom of information community 102 nulai, ‘about us’ (n 42). 103 ernest ojukwu and others, clinical legal education: curriculum, lessons and materials (nulai 2013) 7-8. 104 sam erugo, ‘legal assistance by clinical law students: a nigerian experience in increasing access to justice for the unrepresented’ (2016) 3(2) asian journal of legal education 165. 105 the institutions of higher learning include thirty seven universities and, six campuses of the nigerian law school. see nulai, ‘reform of legal education in nigeria’ (2020) <http://nulai.org> accessed 6th march 2020. 106 ibid. 107 olanike s. adelakun-odewale, ‘role of clinical legal education in social justice in nigeria’ (2017) 5(1) asian journal of legal education 88-98. reviewed article 165 education and support.108 the law clinic is compartmentalised into several units according to the focal points of the law clinic in question.109 each of the units is headed by a student clinician.110 the heads of departments are responsive to the central executives, namely an appointed president, a vice president and a secretary.111 in turn, the activities of the central executives and, the law clinic are overseen by qualified legal practitioners who are law teachers.112 as earlier mentioned, nulai is a civil society that focuses on different spectrum of access to justice, including environmental and climatic justice. the role of nulai in promoting access to justice is one with statutory flavour as provided for in the legal aid act.113 access to justice is said to cover a series of activities for the promotion, enforcement and, protection of the right to a healthy environment including from anthropogenic activities that exacerbate global warming. 114 it is therefore not surprising that nulai also covers the promotion of climatic justice as part of access 108 ernest ojukwu, compenduim of campus based law clinics (nulai 2014). 109 ibid. 110 ibid. 111 peters ifeoma, ‘role of law clinics in bridging the gap between the less privileged and access to justice in nigeria – uwais abdulrahman’ (2017) < https://dnllegalandstyle.com/2017/role-law-clinicsbridging-gap-less-privileged-access-justice-nigeria-uwais-abdulrahman/> accessed 3rd july 2020. 112 ibid. 113 section 17 of the legal aid act 2011 provides that the legal aid council shall maintain a register of law clinics and may partner with them in the performance of any of their functions under the act. see the legal aid act 2011. 114 niguel crawhall and allison crawhall, ‘access to justice and the right to sustain’ (2016) iucn working paper <https://www.iucn.org/sites/dev/files/content/documents/atj_.pdf> accessed 6th march 2020. https://dnllegalandstyle.com/2017/role-law-clinics-bridging-gap-less-privileged-access-justice-nigeria-uwais-abdulrahman/ https://dnllegalandstyle.com/2017/role-law-clinics-bridging-gap-less-privileged-access-justice-nigeria-uwais-abdulrahman/ reviewed article 166 to justice.115 given its focus and mandate, nulai can play crucial roles in the implementation of the paris agreement, including the nigerian ndcs. in the first instance, nulai can get the nigerian government to adopt more measures than they ordinarily would for the implementation of the ndcs. as indicated, the nigerian government has submitted and published their biennial updates on progress made in the implementation of the unfccc in 2018.116 the update shows that while the ghgs emission level is still increasing, little has been done in the area of the implementation of the mitigation proposed in the nigerian ndcs.117 an instrument used by individual law clinics to achieve access to justice in some contexts is engaging with relevant stakeholders.118 for instance, law clinics undertaking prison projects pay advocacy visits to the chief judge and director of public prosecution of the state where they are domiciled to secure the release of prison detainees.119 thus, nulai can visit and engage with relevant stakeholders like members of the state and national assembly120 both at the national and state level to extrapolate more measures for the implementation of nigerian ndcs. 115 nulai, ‘nulai law clinic global day of action for climate justice’ (2020) <https://www.change.org/p/students-climate-justice-is-social-justice-join-the-nulai-freshaircampaign?use_rea ct=false> accessed 6th march 2020. 116 unfccc, ‘nigeria: first biennial update report’ (n 20). 117 ibid, 146148. 118 nulai, ‘law clinics and pretrial detainees’ <http://www.nulai.org/index.php/blog/82-improvingaccess-to-justice-for-pre-trial-detainees-in-nigeria-project> accessed 9th march 2020. 119 taiye joshua omidoyin and omolade oniyinde, ‘law clinics and access to justice for pretrial detainees in nigeria’ (2019) 10 (9) naujilj 103. 120 the relevant stakeholders include members of the state and national assembly, staff of the ministry of environment and the national environmental standards and regulations enforcement agency (nesrea). see mandyen brenda anzaki, ‘climate change: the legal framework’ <www.thelawyerschronicle.com/climate-change-the-legal-framework/> accessed 9th march 2020. http://www.thelawyerschronicle.com/climate-change-the-legal-framework/ reviewed article 167 however, the limit to which they can engage with relevant stakeholders is constrained by the low level of awareness of climate change issues among university students. the point that nulai is a conglomerate of university law clinics in nigeria which embeds facilitating of access to justice with the training of law students has already been made.121 law students operate a law clinic under the guidance of qualified law teachers and, in partnership with licensed law firms.122 a study conducted in 2019 confirms that there is low awareness of climate change issues among university students in nigeria.123 as such, it is not surprising that there is little awareness of climate change policies and law among law faculties.124 thus, some law clinics will not be sufficiently informed about climatic justice and policies in nigeria to the extent that will birth a meaningful interaction with stakeholders in the light of securing more proactive measures for the implementation of the ndcs. however, the latter problem of a low level of awareness may be addressed by the creation of climate-focused law clinics. the general focus of most law clinics in nigeria is on issues that have a direct bearing on the realisation of human rights.125 thus, it might be difficult to get existing law clinics to familiarise themselves with 121 rafatu ohiare, ‘the role of law clinics in advancing pretrial justice reform in nigeria’ (2019) 4 african journal of clinical legal education and access to justice 33. 122 ibid. 123 mark m akrofi and others, ‘students in climate action: a study of some influential factors and implications of knowledge gaps in africa’ (2019) 6 environments 12. 124 ibid. see emeka daniel otuonye, ‘an assessment of the level of awareness of the effects of climate change among students of tertiary institutions in jalingo metropolis, taraba state nigeria’ (2011) 4 (9) j. geogr. reg. plann. 514. 125 one of such popular area of focus is the realisation of the right to personnel liberty and dignity through prison decongestion projects. see odinakaonye lagi and others, campus-based law clinics in criminal justice administration in nigeria (nulai 2019). reviewed article 168 climate change policies to the degree that will inform a meaningful interaction with law clinics. as such, a panacea to the low level of awareness is the creation of climate justice focused law clinics, stimulated by nulai. for instance, in 2013, nulai initiated a project where they mainstreamed freedom of information community education as a focal point for law clinics across nigeria.126 in practise, nulai can stimulate law clinics registering with them to adopt climate justice as a sole or one of their focal points. such a unique creation will enable the galvanisation of needed knowledge that will foster meaningful interaction with stakeholders. what is more, the low level of awareness can also be addressed by the adoption of a top-down approach. some members of the board of trustees of nulai have already carved a niche for themselves as climate change law experts.127 there are also some members of nulai, who are well-grounded in the area of climate change law.128 thus, nulai can leverage the expertise of its members to design a uniform guidance for meaningful engagement with the relevant stakeholders. the uniform program will be distributed across specific law clinics in nigeria to facilitate such engagement with stakeholders. 126 sam erugo and charles o adekoya, lawyering with integrity: essays in honour of ernest ojukwu san (lulu press 2017) 19-20. see also ernest ojukwu and others, street law: freedom of information manual (nulai 2016). 127 two of the seven board members of nulai are experts in climate change law. see nulai, nulai nigeria profile (nulai 2018) 4. 128 the first author of this article was among the pioneer clinicians and, a product of the first phase of law clinics in nigeria. dr. ngozi chinwa ole is a member of nulai and, an expert in climate change law. see <https://www.linkedin.com/in/dr-ngozi-chinwa-ole-9885858b/?originalsubdomain=uk.> accessed 27th march 2020. https://www.linkedin.com/in/dr-ngozi-chinwa-ole-9885858b/?originalsubdomain=uk reviewed article 169 on another note, nulai could also use the instrument of litigation to extract more ambitious actions from the nigerian government for the implementation of the ndcs. the point that very little has been done in the implementation of the nigerian ndcs in view of 2030 has been made.129 it has been established that one of the tools used by civil societies for extracting proactive actions for the mitigation of climate change is litigation.130 some campus-based law clinics in advanced climes like canada have employed such tools. in nadege dorzema et al. v. the dominican republic (guayabin massacre case)131, a campus-based law clinic at the university of quebec in montreal, canada successfully used the instrument of litigation to enforce the right to life and human dignity of 30 haitian migrants against the dominican government as contained in the american convention on human rights.132 thus, nulai can institute and pursue public interest litigation to extrapolate more actions for the mitigation of climate change in nigeria. such litigation by nulai just like the urgenda foundation’s case can arguably come under the law of tortuous liability, particularly negligence. given that nulai is rudimentarily powered by student law clinicians, they can partner with other ngos 129 priscilla offiong, ‘nigeria’s biannual update report and greenhouse gas inventory report provide useful information on the country’s emission levels’ (2019) < https://www.climatescorecard.org/2019/06/nigerias-biannual-update-report-and-greenhouse-gasinventory-report-provide-useful-information-on-the-countrys-emission-levels/> accessed 11th march 2020 130 the case of urgenda foundation and 886 citizens v. the state of the netherlands (n 91) is an example in this context. 131 (2012) ser.c no 251 (dom). 132 the case of william andrews v united states (1997) iachr, case 11.139, report n 0 57/96 is also another example where the law clinic of american university washington college of law instituted a public interest litigation for inmates on death row for the enforcement of their right to dignity. reviewed article 170 or affiliated law firms to institute such an action.133 there are three elements that must establish concurrently for one to succeed in an action for negligence in nigeria.134 the elements are: that there was a duty of care owed, that there was a breach of duty of care and, that the plaintiff suffered damages as a result.135 the duty of care must be founded in common law or statute.136 it is such duty of care that will give a litigant the legal right to be heard in a court of law.137 thus, nulai must at least cross the first hurdle of getting the right of audience in a court of law by showing that there is a duty of care on the state to protect the environment. regrettably, the non-justiciability of the state’s duty to guarantee a safe environment will puncture the chances of nulai getting a right of audience in a court of law under the tort of negligence. the 1999 constitution of nigeria provides for the duty of a state to protect and improve the environment.138 thus, this section would ordinarily give rise to a duty of care on the state for the purpose of giving a litigant, the right of audience in a court of law in nigeria.139 regrettably, the duty of care imposed on the state to protect and improve the environment is non-justiciable.140 133 law clinics generally have the antecedent of partnering with law firms and ngos particularly to enable them use the instrument of litigation in attaining access to justice. see bernand duhaime & ismene nicole zarifis, ‘using public interest litigation and advocacy as a tool for social change: clinical experiences in the americas and africa’ (2013) african journal of clinical legal education and access to justice 118, 128-129. 134 ese malemi, law of tort (princeton 2017) 287. 135 mtn (nig coms ltd) v sadiku (2014) 17 nwlr 386. 136 a o n ezeani and r u ezeani, law of torts (with cases and materials) (odade publishers 2014) 295. 137 this is encapsulated in the legal maxim, ubi jus ibi remedium which means where there is a legal right, there is a remedy. see thomas v. olufosoye (1986) 1 nwlr (pt 18) 669, at 686. 138 the 1999 constitution of nigeria (ng) s. 20 (1). 139 ibid. see mtn (nig coms ltd) v sadiku (2014) 17 nwlr 386. 140 ibid, s. 20. see epiphany azinge and bolaji owasanoye (eds), justiciability and constitutionality: an epiphany of the law (nigerian institute of advanced legal studies press, 2010) 151. reviewed article 171 the latter provision automatically takes away the right of a litigant to be heard in a court of law in this context.141 thus, nulai will not have the legal right to sue under the tort of negligence to extract more ambitious actions from the nigerian government for the implementation of its ndcs. however, a panacea to the lack of a legal right to sue under the law of negligence might be the use of a rights-based approach. the 1999 constitution provides for the fundamental right to life in nigeria, which shall be enforceable against any party including the state.142 the fundamental human rights enforcement procedure order 2009 provides that: the court shall encourage and welcome public interest litigations in the human rights field and no human rights case may be dismissed or struck out for want of locus standi. in particular, human rights activists, advocates, or groups as well as any non-governmental organisations, may institute human rights application on behalf of any potential applicant.143 the implication of the latter provision is that civil societies like nulai have a right of audience in court for the enforcement of any of the fundamental human rights 141 archbishop anthony okogie v. ag lagos state [1981] 2 nclr 337, 350. 142 the 1999 constitution (ng) s. 33. 143 the fundamental human rights enforcement procedure order 2009 (ng), preamble, s. 3 (e). reviewed article 172 provided for in the constitution.144 in gbemre v shell petroleum development companies and another145 , the court held that the right to life includes the right to a healthy environment including one devoid of the adverse effects of climate change. thus, one can anticipate a higher possibility of success of a suit by nulai for the implementation of the ndcs if it is pursued from a right-based approach. a rightbased approach will accommodate the position that the refusal to fully implement the measures proposed in the ndcs is likely undermine an individual’s right to life.146 the latter is permissible in the light of the provisions of the fundamental human rights enforcement procedure order 2009 to the effect that a person can sue to enforce his fundamental human rights where an action or omission may likely infringe it.147 another role that nulai can play in this context is the adoption of measures for the mitigation of climate change. as noted, the paris decision encourages civil societies to adopt measures for the mitigation of climate change.148 thus, nulai can adopt measures either individually or collectively for the mitigation of climate change. some law clinics have already started initiating climate change mitigation projects 144 abiola sanni, ‘fundamental rights enforcement procedure rules, 2009 as a tool for the enforcement of the african charter on human and peoples’ rights in nigeria: the need for farreaching reform’ (2011) 11 african human rights law journal 512. 145 suit no. fhc/b/cs/53/05; (2005) ahrlr 151 (nghc 2005). 146franziska knur, ‘ the united nations human rights approach to climate changeintroducing a human dimension to international climate law’ in sabine von schorlemer and sylvia maus (eds), climate change as a threat to peace: impacts on cultural heritage and cultural diversity (peter langag 2014) 37-60. 147 the fundamental human rights enforcement procedure order 2009 (ng) order ii (1). 148 the paris decision (n 30) para 117. reviewed article 173 like tree planting in nigeria.149 however, there is still room for more ambitious measures by nulai. notably, such mitigation measures should be made known to relevant stakeholders at the national and international level. mitigation measures adopted by nulai should be communicated to the department of climate change, federal ministry of environment.150 the latter would enable them to factor it in the preparation of nigeria’s biennial updates. in the same vein, such mitigation action needs to be registered in nsazca so that it can be counted at the global stocktake as part of collective measures for climate change mitigation.151 registering with the nsazca means that nulai can also have a stronger footing to partner with other civil societies globally for the adoption of climate change mitigation initiatives. 5. conclusion this paper contains an analysis of the opportunities and challenges that the paris agreement 2015 provide for nulai in the context of mitigating climate change in nigeria. it was argued that the definition of non-party stakeholders to include civil societies provides a platform for nulai to play dual role in the implementation of 149 for instance the ebonyi state university law clinic, nigeria has an annual ritual of tree planting to mitigate climate change in nigeria. amari omaka chukwu, ‘going green and clean: the ebsu law clinic role in combating climate change for health’ (2019) a paper presented at the encle-ijcle conference 2019 comenuis university, bratislava, slovakia 3-5th july 2019. 150 department of climate change, ‘what we do’ (2020) <https://climatechange.gov.ng/what-we-do/> accessed 26th march 2020. 151 unfccc, ‘global climate action nsazca: about’ < https://climateaction.unfccc.int/views/ about.html > accessed 26th march 2020. https://climatechange.gov.ng/what-we-do/ https://climateaction.unfccc.int/views/%20about.html https://climateaction.unfccc.int/views/%20about.html reviewed article 174 the agreement. in the first instance, nulai can help in facilitating the implementation of nigerian ndcs. the latter would be through interaction with stakeholders and, the instrument of litigation. additionally, they can adopt and implement mitigation measures in nigeria. it was argued that the provisions of the paris agreement and, the decision allows for nulai to interact with relevant stakeholders to galvanise more ambitious actions to achieve the implementation of the nndcs by 2030. however, the low level of awareness of climate change policies among law faculties, including law clinicians reduces the chances of a meaningful engagement with stakeholders in this context. the establishment of climate change-focused law clinics and, the adoption of a top-down strategy were recommended as ways to surmount the problem of low awareness. the paris agreement provides the foundation for nulai to use litigation as a tool to secure the enforcement of the ndcs by 2030, possibly under the tort of negligence. regrettably, the possibility of such litigation is eroded by the absence of an enforceable right to a healthy environment in nigeria. thus, nulai will not have a right of audience in a court of law for this purpose. on the other hand, it was argued that the use of a right-based approach might provide an appropriate avenue for nulai to secure the implementation of nigeria’s ndcs. finally, it was identified that the provisions of the paris agreement as detailed in the decision allows for the adoption of mitigation measures by civil societies such as reviewed article 175 nulai. some law clinics are already involved in projects that are mitigating climate change in nigeria. however, the latter efforts are few in comparison to what is needed and more measures are needed. it was recommended that nulai should communicate such measures to the department of climate change, ministry of environment, nigeria and naszca to enable it count in the overall national and global efforts for the mitigation of climate change. climate change is a recurrent topic in various discourses at governmental and non-governmental fora because of its direct and indirect ramifications, all of which stall the realisation of the sustainable development goals in nigeria.152 given the unprecedented scale of its negative ramifications, the government of nigeria has indicated that it is welcoming the actions of civil societies towards the mitigation and adaptation of climate change in nigeria.153 this paper has outlined the various ways nulai can help in the implementation of the paris agreement in nigeria. the paper was presented in the 2nd african colloquim on clinical education 2020 organised by nulai154 and, it is anticipated that the analysis and recommendations in this paper will be fully implemented. 152 mohamed yahya, ‘nigeria must lead on climate change’ (2019) <www.undp.org/content/undp/en /home/blog/2019/nigeria-must-lead-on-climate-change.html > accessed 30th march 2020. 153 maría yetano roche and others, ‘achieving sustainable development goals in nigeria’s power sector: assessment of transition pathways’ (2019) climate policy 15. 154 nulai, ‘nulai 2nd african clinical legal education colloquim’ (2019) <https://nulai.org/nulaiafrica-clinical-legal-education-colloquium/> accessed 30th march 2020. http://www.undp.org/content/undp/en%20/home/blog/2019/nigeria-must-lead-on-climate-change.html https://nulai.org/nulai-africa-clinical-legal-education-colloquium/ https://nulai.org/nulai-africa-clinical-legal-education-colloquium/ 1. introduction 2. the paris agreement 2015: measures and implementation tools 3. the role of civil societies in the implementation of the paris agreement 4. nulai: opportunities and challenges 5. conclusion reviewed article 73 thinking like entrepreneurs: qlegal’s experience of teaching law students to have an entrepreneurial mindset eliza platts-mills and emily wapples, queen mary, university of london, uk abstract to advise a client you need to understand what they do. to provide truly innovative, client-centred advice, you also need to understand how they think. these observations are especially true when working with entrepreneurs who may be otherwise inclined to move forward with their business with or without legal guidance. entrepreneurs are distinguished by their growth mindset and resilience, appetite for innovation and comfort with taking risks and doing things themselves. as the legal marketplace in the uk becomes increasingly competitive (due to legal technology and the growing number of alternative legal service providers), law students need to adopt an entrepreneurial mindset themselves, both to navigate the legal marketplace international journal of clinical legal education thinking like entrepreneurs 74 for their own careers and to provide commercially aware legal services to their clients. law schools need to teach law students to think like entrepreneurs, and commercial law clinics provide the natural setting. this paper adopts a qualitative case study approach to examine how qlegal, the pro bono commercial law clinic within the centre for commercial law studies (“ccls”) at queen mary, university of london (“qmul”) teaches students to develop an entrepreneurial mindset. we reflect on the importance of students learning about and developing this mindset, for their own professional development and to service the unmet legal needs of the start-up community. this paper will also highlight the challenges faced by qlegal staff, including our own legal training and experience, our obligations to real clients and our students’ expectations. we conclude by sharing examples of how we are currently teaching our students to have an entrepreneurial mindset and our ideas for overcoming our institutional challenges and improving our offering even more. reviewed article 75 1. thinking like entrepreneurs: qlegal’s experience of teaching law students to have an entrepreneurial mindset entrepreneurs are distinguished by their growth mindset1 and resilience, appetite for innovation and comfort with taking risks and doing things themselves.2 as the legal marketplace in the uk becomes increasingly competitive, due to legal technology and the growing number of alternative legal service providers, law students need to adopt an entrepreneurial mindset themselves, both to navigate the legal marketplace for their own careers and to provide commercially aware legal services to their clients. law schools need to teach law students to think like entrepreneurs, and commercial law clinics provide the natural setting. this paper adopts a qualitative case study approach to examine how qlegal, the pro bono commercial law clinic within the centre for commercial law studies (“ccls”) at queen mary, university of london (“qmul”) teaches students to develop an entrepreneurial mindset. we reflect on the importance of students learning about and developing this mindset, for their own professional development and to service the unmet legal needs of the start-up community. this paper will also highlight the challenges faced by qlegal staff, including our own legal training and experience, our obligations to real clients and our students’ expectations. we conclude by sharing 1 dweck, c., who will the 21st-century learners be? knowledge quest, vol. 38, no. 2, nov.-dec. 2009, pp. 8+. 2 see generally robinson, p.b., and gough, v., the right stuff: defining and influencing the entrepreneurial mindset, in journal of entrepreneurship education, vol. 23, issue 2, 2020. international journal of clinical legal education thinking like entrepreneurs 76 examples of how we are currently teaching our students to have an entrepreneurial mindset and our ideas for overcoming our institutional challenges and improving our offering even more. 2. an entrepreneurial mindset to be clear, when we refer to an entrepreneurial mindset, we are not talking about the equally important lawyering skill of commercial awareness. lawyers who are commercially aware understand the practical realities and wider business context of their clients’ businesses and prepare advice and solutions that reflect these realities. while commercial awareness is another skill sought by legal employers and taught and practised in commercial law clinics, including at qlegal, it is distinct from the skill of having an entrepreneurial mindset or thinking like an entrepreneur. a person with an entrepreneurial mindset is generally accepted to have the ability to “capitalize on opportunities, change course when needed, and view mistakes as an opportunity to learn and improve.”3 similarly, someone who think likes an entrepreneur, “recognizes an otherwise overlooked opportunity, develops the confidence to take a risk, communicates their ideas clearly, and is able to adjust to and learn from setbacks.”4 3 gillett a. and kelterborn, k, how to inspire entrepreneurial thinking in your students: whether or not they’re actually studying entrepreneurship, harvard business publishing education, feb. 2022. 4 nfte 2020 whitepaper, entrepreneurial mindset on ramp to opportunity, available at <https://www.nfte.com/wp-content/uploads/2020/04/nfte-whitepaper-entrepreneurial-mindset-onramp-to-opportunity-december-2017.pdf>. see also, robinson, p.b., and gough, v., the rights stuff: https://www.nfte.com/wp-content/uploads/2020/04/nfte-whitepaper-entrepreneurial-mindset-on-ramp-to-opportunity-december-2017.pdf https://www.nfte.com/wp-content/uploads/2020/04/nfte-whitepaper-entrepreneurial-mindset-on-ramp-to-opportunity-december-2017.pdf reviewed article 77 pedagogy scholars have identified seven teachable attributes of entrepreneurial thinking: (1) problem solving, (2) tolerance for ambiguity, (3) failing forward, (4) empathy, (5) creativity with limited resources, (6) responding to critical feedback, and (7) teamwork approach.5 we will return to these seven attributes when we discuss the ways that qlegal teaches students to think like entrepreneurs and the challenges that we face. 3. advising entrepreneurial clients qlegal offers postgraduate law students studying for their one-year law masters (“llm”) or phd, experiential learning opportunities working with start-ups and entrepreneurs across four main extra-curricular programmes: • legal advisory programme: the traditional 1:1 legal advice clinic; defining and influencing the entrepreneurial mindset, journal of entrepreneurship education, robinson (vol. 23, issue 2) (2020) (explaining that mindset is a set of attitudes that causes a person to “perceive and behave, act and react” in a certain way; referring to the entrepreneurial attitude orientation defined by robinson in 1987 to measure the way that entrepreneurs think versus nonentrepreneurs using these four scales: (1) concrete results associated with the start-up and growth of a business, (2) perceiving and acting upon business activities in new and unique ways, (3) a perception of control and influence over one’s business and (4) self-confidence and perceived competency regarding one’s business affairs.) 5 peschl, h., deng, c., and larson, n., entrepreneurial thinking: a signature pedagogy for an uncertain 21st century, international journal of management education, 2020 100427, at: <https://www.ncbi.nlm.nih.gov/pmc/articles/pmc7539060/>. https://www.ncbi.nlm.nih.gov/pmc/articles/pmc7539060/ international journal of clinical legal education thinking like entrepreneurs 78 • public legal education programme: preparing resources and delivering workshops to budding entrepreneurs and start-ups; • externship programme: a placement one day a week for six months within a start-up to help spot legal issues and conduct research; and • innovation projects programme: producing innovative solutions to meet a client’s brief using design thinking. we also offer 24 students a place on our credit-bearing, entrepreneurship law clinic module. when we opened our doors as a commercial law clinic in 2013, the focus was on providing legal and regulatory advisory services to early-stage, start-up companies, primarily in the information and communication technologies (“icts”) sector, specialising in addressing a range of challenging intellectual property (“ip”) management issues.6 in the intervening nine years, qlegal’s client base has expanded to meet changing market needs, and now includes entrepreneurs across a wide variety of industries, including education, sustainable fashion, financial services and the arts, although the vast majority of our clients utilise, and depend upon, icts in the provision of their products and services. while the areas of legal support provided to our clients have also expanded to cover a wider range of legal topics relevant to the start-up ecosystem, there are three main 6 <https://www.qmul.ac.uk/law/research/funded/qlegal/>. https://www.qmul.ac.uk/law/research/funded/qlegal/ reviewed article 79 areas where advice is generally requested. first, concerning the nature of the business, i.e. what are we?, helping clients move from an unincorporated form, such as a sole trader, to an incorporated form, such as a limited company or a community interest company. second, ip issues, ensuring that clients are able to protect the intangible assets that generally comprise the majority of the business. ip advice will range from non-disclosure agreements (“ndas”), to protect the disclosure of ideas when working with others, to the registration of trade marks and patents. third, for many online businesses the collection and processing of personal data as a revenue source means compliance with data protection laws can be a critical area of concern. the nature of and need for legal advice sought by entrepreneurs varies based on a range of factors, but four key issues are particularly relevant to the nature of entrepreneurship. first, as noted above, entrepreneurs are prepared to take risks to succeed. such risk taking often extends to their view of legal matters. to be engaged, they will need to be convinced that the advice is necessary for the business to progress and that the risks from not addressing the issue are greater than the costs, especially when existential. second, it is also important to understand how the type of legal support varies on the entrepreneurial journey from start-up to scale-up, such as the shift from borrowing money from family and friends to seeking investment from venture capitalists. typically, the legal advice given to a start-up needs to cover their current legal needs and anticipate their future legal needs. third, an awareness of what the entrepreneur is hoping to achieve is also critical, i.e. what success would international journal of clinical legal education thinking like entrepreneurs 80 look like. for some, the creativity of building is the main driver; for some, it is about bringing about change; while for others, it is all about the money! does the client want to be the next google or are they looking to be bought by google? finally, notwithstanding the long-term value of legal advice, convincing start-ups to invest resource in obtaining legal advice can be challenging. while pro bono advice clinics remove the financial barrier to accessing legal advice, entrepreneurs can still struggle to find the time to capitalise on the opportunities offered. as of 1 january 2021, there were 5.3 million private sector micro-businesses in the uk, accounting for 95% of all uk businesses.7 over one third of uk businesses are in london and the south east of england.8 this is unsurprising given london’s recent ranking (alongside new york) as the world’s number two start-up hub, second only to silicon valley.9 qlegal’s physical proximity to the silicon roundabout and the king’s cross tech hub10 means it is well placed to support these local entrepreneurs. 7 “micro-businesses” have 0-9 employees and “businesses” includes all legal forms, including selfemployed, sole traders and multinationals”. see companies house official statistics – companies register activities: 2022 to 2021, published 24 june 2021, page 12 and page 5 respectively, available at: <https://www.gov.uk/government/statistics/companies-register-activities-statistical-release-2020-to2021/companies-register-activities-2020-to-2021>. 8 see companies house official statistics – companies register activities: 2022 to 2021, published 24 june 2021, page 14. 9 the global startup ecosystem report – gser 2022, global entrepreneurship network, undated 2022, available at <https://startupgenome.com/report/gser2022>. 10 “silicon roundabout” is the widely adopted nickname for the east london tech city, a cluster of high-tech companies in east london. in recent years, the area around king’s cross and st pancras train stations have become a hub for tech giants such as google uk and facebook, along with innovative start-ups such as benevolentai (with whom qlegal regularly partner on the externship programme). https://www.gov.uk/government/statistics/companies-register-activities-statistical-release-2020-to-2021/companies-register-activities-2020-to-2021 https://www.gov.uk/government/statistics/companies-register-activities-statistical-release-2020-to-2021/companies-register-activities-2020-to-2021 https://startupgenome.com/report/gser2022 reviewed article 81 in the 2021-22 academic year, qlegal students provided legal advice, support and education to over 150 start-ups and entrepreneurs,11 of which 69 received tailored individual advice. of the clinic enquiries received, 55% were from start-ups in the development stage and/or with no turnover, and 64% had not received any funding. the vast majority worked alone. with limited financial and human resources, it is unsurprising that 69.8% reported that they do not usually obtain legal advice for their business.12 this last figure also reflects the position at a national level. the legal services board concluded in april 2022 that “only a quarter of small businesses used professional help in response to legal issues”, with the legal system viewed by small businesses as “unaffordable and tilted against those lacking financial resources”. where small businesses do seek professional help, free sources of advice, such as business law clinics like qlegal, “play an important role [representing] 25% of the main provider used”.13 however, the availability of such free advice services is limited and 11 this level of output was impressive given the post-pandemic climate and limited resources. however, our legal advice clinic was only able to support around 35% of the entrepreneurs who contacted qlegal for advice. this was primarily due to the limitations of the practice areas we cover and the number of appointments available. 12 at qlegal, we often hear of clients seeking free legal advice/support from within their network, or entrepreneurs conducting their own research. where start-ups can afford to pay for some legal support, this is often in the form of a legal subscription service (for example, seedlegals) or from their accountants. law firms are increasingly aware of the demand from start-ups that legal advice is proportionate in cost and value, with many offering legal membership, fixed-fee legal services and/or flexible legal packages options. 13 legal services board, small business legal needs wave four survey 2021, april 2022 <https://legalservicesboard.org.uk/wp-content/uploads/2022/05/20220406-small-business-legalneeds-final.pdf> page (7). https://legalservicesboard.org.uk/wp-content/uploads/2022/05/20220406-small-business-legal-needs-final.pdf https://legalservicesboard.org.uk/wp-content/uploads/2022/05/20220406-small-business-legal-needs-final.pdf international journal of clinical legal education thinking like entrepreneurs 82 consequently, in the “vast majority of cases where small businesses have a legal need requiring professional support, this need is not met.”14 these commercial constraints and lack of affordable legal support mean that entrepreneurs at the beginning of their start-up journey are often forced to be agile, self-sufficient, jack-of-all-trades characters, who take risks to ensure that their business idea succeeds. 4. thinking like an entrepreneur there are many reasons why clinic students should be taught to think like their entrepreneur clients. we focus on what we consider to be the top three reasons, viewed from the perspective of balancing the demands of clients and the expectations of students, within an evolving legal environment: quality of service delivery, student employability and changes in the legal services market. 4.1 service delivery entrepreneurs are busy people, juggling multiple priorities. they are often impatient and do not want to wait for advice before launching their business or adopting a new business practice. they want legal advice quickly and clearly, communicated in nonlegalese language. 14 legal services board, small business legal needs wave four survey 2021, april 2022 <https://legalservicesboard.org.uk/wp-content/uploads/2022/05/20220406-small-business-legalneeds-final.pdf> page (i). https://legalservicesboard.org.uk/wp-content/uploads/2022/05/20220406-small-business-legal-needs-final.pdf https://legalservicesboard.org.uk/wp-content/uploads/2022/05/20220406-small-business-legal-needs-final.pdf reviewed article 83 understanding the level of support the client wants is a vital first step for students when preparing their advice letter, workshop materials or project prototype. whether an entrepreneur is still formalising their business idea or has developed a minimum viable product, they are often hampered by similar business issues. what differentiates them is the outcome they expect from their lawyers: from passenger along for the ride, to driver, to full-on map maker. to enable students to provide client-centred services, it should be made clear from the students’ brief what level of support their client is expecting and the role the students should play. for example: • some clients are simply looking for approval of their decisions. here, students need to ensure clients understand the practical and legal consequences of adopting their chosen course of action. (lawyer as passenger along for the ride). • a second category of client will have a rough idea of what they need to do, as a result of their own research, but need support implementing their plan in compliance with the law. (lawyer as driver). • other entrepreneurs want support to help them shape their business at the start of the journey. they want help building the legal infrastructure that will allow them to grow. (lawyer as map maker). international journal of clinical legal education thinking like entrepreneurs 84 at all times, students must communicate with their clients in a clear, empathetic and timely manner: “[e]ffective lawyer-client communication is not only an essential component of client representation but also the most important thing many clients want from their lawyers.”15 law students advising live clients must respect the client’s desire for good communication. to help students deliver the level of service clients expect, students will need to have good soft skills, including active listening, stakeholder management and professional, non-legalese communication. students can raise awareness of particular legal issues affecting entrepreneurs by delivering targeted legal education information sessions at venues servicing start-up communities. interest and engagement is then channelled into 1:1 advice clinics, where clients can receive tailored written advice, or directed to self-serve publicly available resources. the hope is that start-ups using these services will subsequently thrive to such an extent that they will benefit from regular legal support. by understanding the various levels of support entrepreneurs expect on their journey from start-up to scale-up, students will be better placed to spot new opportunities to serve their future clients. we must teach students the importance of recognising these new opportunities and having the conviction to act upon them: to disrupt the 15 what do clients want from their lawyers? 2013 j. disp. resol. 143 (2013). reviewed article 85 legal market for the purposes of delivering better client care, and to be entrepreneurial in the way they approach their professional responsibilities. 4.2 student employability keeping abreast of what recruiters are looking for from graduates is an essential part of enhancing student employability. by doing so, we can ensure that the skills we teach our students are relevant to the legal market and students are set up to succeed in it. the “entrepreneurial instinct” is something that legal recruiters are increasingly looking for from candidates.16 in the 2020-21 academic year, 40% of students participating in qlegal on an extracurricular basis wanted to practise law in the uk following graduation. traditionally, graduates wanting to practise law in england needed to complete a legal practice course exam, followed by a two-year training contract (work placement) within a law firm.17 the limited number of training contracts available mean that securing one is an extremely competitive process, with as few as 2% of applicants being successful.18 16 <https://targetjobs.co.uk/careers-advice/law/what-skills-do-law-firms-look-when-recruitinggraduates-trainee-solicitor-jobs>. 17 for foreign students without a qualifying law degree, the gdl or qlts will need to be taken first. 18 the 82 firms listed in chambers student guide’s 2020 edition, received a total of more than 70,000 applications for 1,357 training contracts. see how competitive is the law? chambers: students, available at <https://www.chambersstudent.co.uk/where-to-start/commercial-awareness-info/ournewsletter/how-competitive-is-the-law>. https://targetjobs.co.uk/careers-advice/law/what-skills-do-law-firms-look-when-recruiting-graduates-trainee-solicitor-jobs https://targetjobs.co.uk/careers-advice/law/what-skills-do-law-firms-look-when-recruiting-graduates-trainee-solicitor-jobs https://www.chambersstudent.co.uk/where-to-start/commercial-awareness-info/our-newsletter/how-competitive-is-the-law https://www.chambersstudent.co.uk/where-to-start/commercial-awareness-info/our-newsletter/how-competitive-is-the-law international journal of clinical legal education thinking like entrepreneurs 86 in september 2021, the solicitors regulation authority of england and wales introduced an alternative route to qualify as a solicitor: the solicitors qualifying examination (“sqe”). this allows law graduates to complete two exams testing legal knowledge and skills, in addition to two years’ qualifying work experience (“qwe”). the aim of the sqe was to “open up new and diverse routes to qualification” while providing “assurance that all aspiring solicitors meet consistent, high standards.”19 subject to meeting certain criteria, the client-facing work students undertake within a clinical setting can count towards their qwe for the purposes of sqe.20 this new regime blurs the traditional boundaries of the academic, vocational and practical stages of the qualification process for solicitors. the competitive, evolving legal market can be difficult for graduates to navigate and especially for international students, who may be used to an entirely different qualification process in their home country. a large part of qlegal’s student body comprises international students. they have a year, while studying for their llm, to familiarise themselves with the london legal market, and what recruiters will be 19 green light for new solicitor exam, solicitors regulation authority, 28 october 2020: <https://www.sra.org.uk/sra/news/press/2020-press-release-archive/sqe-approved-lsb/>. the cost of the sqe1 exam is £1,622 and sqe2 exam is £2,493. whereas, the cost of the lpc at bpp is upwards of £13,038. see <https://www.lawsociety.org.uk/career-advice/becoming-a-solicitor/solicitors-qualifyingexamination-sqe/requirements-and-cost> and <https://www.bpp.com/courses/law/postgraduate/lpclegal-practice-course>. 20 qwe must involve providing legal services to real life clients: simulated legal services do not count. see qualifying work experience for candidates, solicitors regulation authority, 5 april 2022: <https://www.sra.org.uk/become-solicitor/sqe/qualifying-work-experience-candidates/>. https://www.sra.org.uk/sra/news/press/2020-press-release-archive/sqe-approved-lsb/ https://www.lawsociety.org.uk/career-advice/becoming-a-solicitor/solicitors-qualifying-examination-sqe/requirements-and-cost https://www.lawsociety.org.uk/career-advice/becoming-a-solicitor/solicitors-qualifying-examination-sqe/requirements-and-cost https://www.bpp.com/courses/law/postgraduate/lpc-legal-practice-course https://www.bpp.com/courses/law/postgraduate/lpc-legal-practice-course https://www.sra.org.uk/become-solicitor/sqe/qualifying-work-experience-candidates/ reviewed article 87 looking for in successful candidates, as well as the time offered by the post-study work visa. when they join qlegal, many students have an outdated view of what it takes to succeed as a lawyer, adopting the traditional view that they should be specialists in a single area and possess deep technical legal knowledge. however, “modern day legal professionals need to learn, practice and embed different skillsets so they can partner with their clients and help them solve [their] problems”21: they need to be ‘oshaped’22 o-shaped lawyers are encouraged to be openminded, optimistic, opportunistic, original and take ownership of their work. there is much overlap between these characteristics and possessing an entrepreneurial mindset. a vital part of our role when preparing students for future practice, is encouraging students to recognise the importance of developing these soft skills and to shift their perception of what it takes to succeed as a lawyer. 21 <https://www.oshapedlawyer.com/>. 22 the “o shaped lawyer” programme is a “cross-industry movement whose aim is to drive positive change” and encourage “a fundamental re-think on the delivery of legal training and development for future lawyers and those already within the profession”. see the o shaped lawyer: putting people at the heart of legal services, the o shaped lawyer, 2020, available at: <https://www.briefing.co.uk/wpcontent/uploads/2020/11/briefing-5p-clara-garfield-updated-slides.pdf> and transforming the training & development of lawyers, o shaped lawyer, aspirant, february 2020, page 2 available at: <https://static1.squarespace.com/static/5e73266f0be3ab3148757f25/t/5e736114824c026bd67da1e1/ 1584619820423/o+shaped+lawyer+-+in-house+report+%28february+2020%29.pdf>. https://www.oshapedlawyer.com/ https://www.briefing.co.uk/wp-content/uploads/2020/11/briefing-5p-clara-garfield-updated-slides.pdf https://www.briefing.co.uk/wp-content/uploads/2020/11/briefing-5p-clara-garfield-updated-slides.pdf https://static1.squarespace.com/static/5e73266f0be3ab3148757f25/t/5e736114824c026bd67da1e1/1584619820423/o+shaped+lawyer+-+in-house+report+%28february+2020%29.pdf%3e. https://static1.squarespace.com/static/5e73266f0be3ab3148757f25/t/5e736114824c026bd67da1e1/1584619820423/o+shaped+lawyer+-+in-house+report+%28february+2020%29.pdf%3e. international journal of clinical legal education thinking like entrepreneurs 88 we are not alone in thinking that creating an entrepreneurial mindset is a critical employability skill: • “today’s law students do not just want to represent entrepreneurs. they need to be entrepreneurs, regardless of whether they pursue solo, small firm, big law, or other legal services careers.”23 • “the law students who are best able to capitalize on our fast-moving economy are those who have intellectual curiosity, embrace technology, think broadly about ethics, stakeholders and the rule of law.”24 teaching students to understand and embrace the opportunities generated by legal technologies is another important part of preparing our students for an entrepreneurial mindset. as well as qlegal using technologies to deliver its advice services, such as the clio online case management system,25 ccls also offers an llm module in legal tech, which has proved hugely popular.26 tech-enabled lawyers are not simply lawyers who can use technology, they also need to be agile, collaborative, innovative, resilient and possess a growth mindset, i.e. they need to possess an 23 dangel s. and madison m., innovators esq.: training the next generation of lawyer social entrepreneurs, dangel s. and madison m. 83 umkc l. rev. 967 at 971-72 (2015). 24 professor erika buell, director of the law and entrepreneurship program at duke law, in why every ll.m. student needs entrepreneurial thinking, llm guide, masters of laws programs worldwide, at: <https://llm-guide.com/articles/why-every-llm-student-needs-entrepreneurial-thinking>. 25 clio is a cloud-based case management system that is available free of charge to university law clinics. see <www.clio.com>. 26 <https://www.qmul.ac.uk/law/postgraduate/courses/llm/modules/llm/items/solm273-legal-techc21.html>. https://llm-guide.com/articles/why-every-llm-student-needs-entrepreneurial-thinking http://www.clio.com/ https://www.qmul.ac.uk/law/postgraduate/courses/llm/modules/llm/items/solm273-legal-tech-c21.html https://www.qmul.ac.uk/law/postgraduate/courses/llm/modules/llm/items/solm273-legal-tech-c21.html reviewed article 89 entrepreneurial mindset.27 students who understand (and can demonstrate) that thinking like an entrepreneur is at the heart of being o-shaped and tech-enabled lawyers will be well placed to deliver client-centred lawyering, making them attractive candidates to legal recruiters. 4.3 changes in the legal services market just as there are now alternative routes to qualifying as a lawyer in england and wales, there are also multiple different types of career opportunities available within the legal profession. while traditionally, lawyers either worked in private practice, or in-house, the spectrum of legal roles available is increasingly diverse, as a result of the changing legal landscape in response to client demands. law is a business, like any other commercial enterprise. it is subject to the pressures placed on it by demanding clients and must constantly innovate to remain competitive and, ultimately, survive. law firms have recognised that clients are looking for cost-effective legal solutions and are willing to perform an element of self-service to achieve a corresponding cost reduction. to deliver this hybrid service that clients expect, law firms need to better align their resources with the peaks and troughs of the workload: scaling up or down when 27 the tech-enabled lawyer: the evolution of the legal function, lexisnexis, 2021, page 14, available at: <https://www.lexisnexis.co.uk/research-and-reports/in-house/the-tech-enabled-lawyer.html>. https://www.lexisnexis.co.uk/research-and-reports/in-house/the-tech-enabled-lawyer.html international journal of clinical legal education thinking like entrepreneurs 90 required and ensuring the costs ultimately borne by the client are proportionate.28 they can achieve this, for example, by: • leveraging legal technology, such as electronic disclosure systems, automated document review processes and client portals offering real-time project management and costs updates. • using flexible (or project-based) lawyers “to tap into new markets and deliver bespoke services by matching required specialist expertise with lawyers outside the firm.”29 • building multi-disciplinary legal teams that have a mix of specialist, operational and technical expertise to improve their overall effectiveness.”30 law firms and in-house teams consider legal project managers “crucial if lawyers are to add value by controlling budgets...and manage time.”31 further, gartner predicts that 33% of legal departments will have a dedicated legal technology expert in-use by 2023.32 • adopting alternative business models. 10% of uk law firms now operate under an “alternative business structure (“abs”) licence”, where the law firm is owned 28 <https://www.lexisnexis.co.uk/blog/future-of-law/how-has-the-rise-of-flexible-lawyers-benefittedpinsent-masons-llp>. 29 <https://www.lexisnexis.co.uk/blog/future-of-law/how-has-the-rise-of-flexible-lawyers-benefittedpinsent-masons-llp>. 30 the tech-enabled lawyer: the evolution of the legal function, lexisnexis, 2021, page 2, available at: <https://www.lexisnexis.co.uk/research-and-reports/in-house/the-tech-enabled-lawyer.html>. 31 <https://www.brownejacobson.com/about-us/news-and-media/published-articles/2022/08/role-oflegal-project-management-in-public-sector-projects>. 32 the tech-enabled lawyer: the evolution of the legal function, lexisnexis, 2021, page 11, available at: https://www.lexisnexis.co.uk/research-and-reports/in-house/the-tech-enabled-lawyer.html https://www.lexisnexis.co.uk/blog/future-of-law/how-has-the-rise-of-flexible-lawyers-benefitted-pinsent-masons-llp https://www.lexisnexis.co.uk/blog/future-of-law/how-has-the-rise-of-flexible-lawyers-benefitted-pinsent-masons-llp https://www.lexisnexis.co.uk/blog/future-of-law/how-has-the-rise-of-flexible-lawyers-benefitted-pinsent-masons-llp https://www.lexisnexis.co.uk/blog/future-of-law/how-has-the-rise-of-flexible-lawyers-benefitted-pinsent-masons-llp https://www.lexisnexis.co.uk/research-and-reports/in-house/the-tech-enabled-lawyer.html https://www.brownejacobson.com/about-us/news-and-media/published-articles/2022/08/role-of-legal-project-management-in-public-sector-projects https://www.brownejacobson.com/about-us/news-and-media/published-articles/2022/08/role-of-legal-project-management-in-public-sector-projects https://www.lexisnexis.co.uk/research-and-reports/in-house/the-tech-enabled-lawyer.html https://www.lexisnexis.co.uk/research-and-reports/in-house/the-tech-enabled-lawyer.html reviewed article 91 and/or managed by non-lawyers. there are a “broad range of abss now operating in england and wales. these include listed companies (for example gateley, dwf) … online platforms (legal zoom) … alternative providers (farewill) … and multidisciplinary practices mixing law and other professions.”33 against this backdrop, where law firms must innovate or risk being left behind, agile lawyers with the ability to think creatively and be opportunistic are in demand. “the growing influence of disruptive technology and the emergence of customercentric law companies suggests that the next generation of lawyers will be entering a profession that looks very different to the current one.”34 as clinicians training the next generation, we must teach students the importance of possessing an entrepreneurial mindset, and being agile, creative thinkers, who take advantage of opportunities presented to them. possessing these skills, graduates will be well placed to thrive in the modern legal profession. 33 “alternative business structures (abs) were introduced as part of the legal services act 2007 reforms aimed at creating a liberalised legal market while still protecting customers of legal services”. there are a “broad range of abss now operating in england and wales. these include listed companies (for example gateley, dwf)...online platforms (legal zoom)...alternative providers (farewill)...and multidisciplinary practices mixing law and other professions”. <https://www.lawgazette.co.uk/features/flexing-the-abs/5112032.article>. 34 transforming the training & development of lawyers, o shaped lawyer, aspirant, february 2020, page 3 available at: <https://static1.squarespace.com/static/5e73266f0be3ab3148757f25/t/5e736114824c026bd67da1e1/ 1584619820423/o+shaped+lawyer+-+in-house+report+%28february+2020%29.pdf>. https://www.lawgazette.co.uk/features/flexing-the-abs/5112032.article https://static1.squarespace.com/static/5e73266f0be3ab3148757f25/t/5e736114824c026bd67da1e1/1584619820423/o+shaped+lawyer+-+in-house+report+%28february+2020%29.pdf%3e. https://static1.squarespace.com/static/5e73266f0be3ab3148757f25/t/5e736114824c026bd67da1e1/1584619820423/o+shaped+lawyer+-+in-house+report+%28february+2020%29.pdf%3e. international journal of clinical legal education thinking like entrepreneurs 92 however, we recognise that not all qlegal students want, or indeed will, go on to be lawyers after they graduate. some may go on to be entrepreneurs, or even legal tech entrepreneurs themselves: using their understanding of the law to create legal products that help entrepreneurs. indeed, two students who participated in qlegal’s first legal design project were so inspired by their qlegal experience, that they went on to establish legal design consultancies in their home countries. 5. how does qlegal teach law students to think like entrepreneurs? as mentioned earlier, scholars have identified seven attributes of entrepreneurial thinking: (1) problem solving, (2) tolerance for ambiguity, (3) failing forward (or the ability to learn from failure), (4) empathy, (5) creativity with limited resources, (6) responding to critical feedback, and (7) teamwork approach.35 how do we give our postgraduate law students the opportunity to learn these competencies? teaching students the attributes of problem solving, empathy for clients, responding to critical feedback and engaging in a teamwork approach lies at the heart of all clinical legal education offerings. qlegal stresses the importance of each of these four skills in our up-front training, where we engage in problem 35 entrepreneurial thinking: a signature pedagogy for an uncertain 21st century, peschl, h., deng, c., and larson, n., international journal of management education, 2020 100427, at: <https://www.ncbi.nlm.nih.gov/pmc/articles/pmc7539060/>. https://www.ncbi.nlm.nih.gov/pmc/articles/pmc7539060/ reviewed article 93 solving exercises and role play client-centred lawyering, active listening, commercial awareness, having a growth mindset and working well as a team. students across our four programmes also practise and develop each of these four skills in their client work and reflect on the challenges related to these skills in case rounds. we emphasise that our advice letters, public legal education resources, externship research and innovation projects work product must be written directly to the client, must focus on the issues and business needs named by the client and must include practical details and links that will most help the client. we will not spend additional time here describing the ways that we teach our students problem solving, empathy, responding to critical feedback and engaging in teamwork as we do not think our teaching in these areas is unique. perhaps the more interesting challenge and the question that we will focus on below is how can we design our programmes to help our students develop the remaining, three teachable attributes of an entrepreneurial mindset: tolerance for ambiguity, failing forward and creativity with limited resources? we start by describing the ways we are developing these three skills at present and then shift to a discussion of the obstacles we face and our ideas for how to overcome these obstacles. international journal of clinical legal education thinking like entrepreneurs 94 5.1 teaching students to tolerate ambiguity few of us lawyers enjoy uncertainty and ambiguity. that is not why we went to law school. and yet an ability to navigate uncertainty and ambiguity are traits that clients and employers look for and are also attributes that will serve our graduates well as they navigate our constantly changing world.36 how do we create situations for our students that are uncertain and ambiguous? how do we let them practise and develop a tolerance for ambiguity? perhaps one of the best ways to teach students about the entrepreneurial mindset and specifically the ability to handle uncertainty and ambiguity is to place them into regular, meaningful contact with entrepreneurs. qlegal does this through our externship programme which places students into start-ups one day a week for six months. the externship programme staff at qlegal have regular check-ins with both externship hosts and externs, facilitate fortnightly reflections for extern students and provide extern students with additional business and legal skills training based on common questions that arise within the start-ups. but students are primarily left to themselves to navigate the requests made of them by their start-up host. students can feel the fast-paced, exhilarating and sometimes even chaotic nature of trying to get a new venture off the ground with limited support. this experience is likely a 36 the law training report: what skills do firms expect new entrants to possess in the post sqe era? bpp university law schools (2018) at page 17 (firms want to know ‘how new entrants cope emotionally with pressure, the fast pace of legal work, or unexpected or difficult situations in the workplace’, and ‘how quickly they adapt to different supervisors or cope with unexpected changes to instructions’). reviewed article 95 world away from the students’ structured legal studies and past legal work experience and arguably the closest we at qlegal get to putting our students in situations where they must develop a tolerance for ambiguity. here is a reflection from one of our recent externship programme students: “i have learned that, instead of being ashamed about something that i don’t know and feel that i am not capable enough, i can shift my energy to learn and understand it. i have also overcome my deep fear of public speaking that i have had since i was a kid, which is something that will be very useful for me in the future.” anissa bianca latu, 2022 externship programme student. another example comes from the interactive elements of our public legal education workshops. commercially aware, client-centred lawyering means recognising that the audience for the workshop has a lot to contribute and arrives with relevant, prior knowledge and perhaps even knowledge that we as lawyers do not have. rather than preparing a lengthy set of slides for a one-way lecture on corporate structures, students need to get comfortable with open engagement with the audience, hearing what the audience already knows about the topic and learning where the audience’s remaining questions and confusion lie. this shift from teacher-student to coparticipants and co-learners is most likely new for students, especially for postgraduate law students who have spent many years being passive learners in international journal of clinical legal education thinking like entrepreneurs 96 lectures. it also might be uncomfortable because of the uncertainty and lack of control that it introduces. our public legal education students dive into researching new areas of law, but they find it hard to let go of the lecturer role. moving them from lecturer to facilitator, listener and discussant is not easy. perhaps the most important way to teach this competency is to remind students how they themselves enjoy learning about the law. do they prefer sitting in a classroom and taking notes, or do they prefer participating in qlegal? if the latter, why is that? if it is because they are actively engaged in their own learning, then they need to realise that the same is true of their workshop audiences. once we do get our students to let go of all the control and open the workshop up to discussion with the audience, students can practise handling and tolerating uncertainty. 5.2 teaching students to fail forward the ability to fail forward, also referred to as resilience, is a skill that law firms have noted is lacking in junior lawyers.37 students who can evidence experience developing a growth mindset and learning from failure will be attractive to 37 the law training report: what skills do firms expect new entrants to possess in the post sqe era? bpp university law schools (2018) at page 17 (firms want to know about applicants, ‘how good they are at receiving, or giving, constructive criticism‘, and ‘how quickly they adapt to different supervisors or cope with unexpected changes to instructions‘.) reviewed article 97 employers and will have an easier time navigating today’s difficult, competitive legal jobs market. we spend considerable time in our initial training discussing the importance of having a growth mindset, learning from mistakes and being resilient. we train our students on receiving and giving constructive feedback and engaging in honest selfreflection. we have a pre-recorded video entitled “nobody gives you stars” and a written “student journey guide” that emphasise the need to keep track of your own successes and skills development, to market yourself as you navigate your career and to be an entrepreneur when it comes to finding jobs, succeeding at jobs, branding yourself and designing a rewarding career. we conduct weekly and fortnightly case rounds within each programme where students are asked to share what is going well and what is not going well. we stress that case rounds are a safe space within which to discuss failure and struggles with others. we also require students to attend and give feedback at each other’s workshop dress rehearsals. while we discuss and name the skill of failing forward and ask students to share their experiences with us in case rounds, dress rehearsal and reflection sessions, it is hard in a live client clinic to give students practical experience with failing because of our ethical and moral obligations to our clients and our other stakeholders, including our practising uk solicitor partners. that said, students may feel that they have failed if their first draft receives lots of feedback, their workshop audience is non-responsive international journal of clinical legal education thinking like entrepreneurs 98 or asks questions the students can’t answer, their innovation projects client doesn't like their prototype or their externship host doesn’t take up their research ideas or doesn’t like a first draft they have prepared. in situations where students feel they have failed, it is important to give them an opportunity to discuss how they feel and encourage them to learn from those feelings and from the experience. part of that discussion must be a reminder of the importance of developing a thick skin and valuing constructive feedback and the opportunity to fail forward. take for example the externship student whose host provides lots of direct, specific, at times harsh feedback on a draft nda. the student who can lean into and through this feedback will not only grow as a lawyer and professional but will also have specific evidence of failing forward to share with recruiters when asked for instances of resilience. another way to help our students to fail forward is to discuss what success looks like with our client work. is success delivering a “perfect” legal advice letter, public legal education workshop, innovation projects deliverable or externship host presentation? or is success getting your audience to engage with what you are saying, to start connecting dots and to realise that they may need to engage the services of a lawyer to help them with some parts of their business? broadening our shared definition of success may help move our high-achieving students away from the elusive search for reviewed article 99 “perfect” and thereby open them up to taking risks, including the risk of failing forward. 5.3 teaching students to practise creativity with limited resources here again, it is our externship programme that offers students the chance to practise creativity with limited resources. the start-up hosts are short on all kinds of resources and certainly short on legal resources. they don’t have inside counsel or counsel at an outside law firm to whom they can turn with their legal questions. they often turn to our qlegal externs, even though we make clear at the start that the students are not yet uk lawyers and are not allowed to give legal advice. but the qlegal students can and do help spot legal issues, brainstorm legal solutions, conduct legal research, review documents and even do some initial drafting, all while making clear that proper legal advice from a practising uk solicitor is advised. the other programme that offers students the opportunity to practise creativity with limited resources is our innovation projects programme. students get trained in and serve their clients using design thinking methodology, which involves empathising with the client, defining the problem, ideating, coming up with a prototype and testing the prototype with the client. now in its third year, the programme sees teams of students use design thinking to produce innovative solutions to meet a client’s brief. the client may itself be a start-up; or its own clients, or ‘end-users’ in design thinking terms, may be entrepreneurs. either way, students are given tools to international journal of clinical legal education thinking like entrepreneurs 100 help them empathise with the entrepreneurs, so the students understand pain points and motivations. projects have included the design of a child-friendly privacy notice for a social enterprise; exploring a user-friendly way for creative entrepreneurs to engage with the law; and improving a platform that links start-ups with legal advisers. students on this programme now work in interdisciplinary teams to better reflect life outside law school. the process of design thinking requires practitioners to spend time and resources going deep with a project to fully understand the problem that the client faces, before tackling the solutions. as a result, the students are left with limited time to craft a solution, especially given the time constraints of the academic schedule. 6. challenges in teaching students to develop an entrepreneurial mindset 6.1 we think like lawyers arguably the biggest challenge is that those of us trained and practised in law think first and foremost like lawyers! as mentioned above, we want our work product to be excellent, for ourselves, our clients and our various stakeholders. we spend considerable time designing our programmes so that our students are set up for success. we pre-screen clients, prepare briefs, provide templates and deliver practical training. we, and our partner law firms, provide lots of detailed feedback, with an eye to making the content more accurate and the communication style more userfriendly and consistent. reviewed article 101 are we being too prescriptive? it may be better to let the students interview the clients and workshop hosts without an initial case summary or brief and determine from the interview both what the challenge is and how to best support the client. are we wrong to provide template letters and template scripts? we emphasise the importance of being commercially aware, practical and client-centred, so we could let the students decide for themselves what that looks like. would introducing such uncertainty, inconsistency and ambiguity harm the relationship between qlegal and its law firm partners? embracing a creative work product from students, rather than the more traditional and familiar legal advice letter, may better reflect the needs of entrepreneurial clients, which arguably benefits all stakeholders. 6.1.1 what are we doing to overcome this obstacle? fortunately, we believe that an entrepreneurial mindset can be taught and learned, but we must start by admitting where we are ourselves as programme designers and educators. from there, we can intentionally develop ourselves and our offering. the qlegal staff meets daily to share what we are working on in our respective programmes including the challenges we are each facing. two of our recurring questions as a staff are: “are we being innovative enough with our services?” and “how can we teach our students to think less like lawyers?” to answer these questions, we conduct market research to learn what other people are providing in international journal of clinical legal education thinking like entrepreneurs 102 terms of legal services, follow newsletters and blogs put out by incubators that support start-ups, attend and speak at relevant events including london tech week, clinical legal education conferences, and the legal geek conference and write papers like this one. it might be helpful to share our internal qlegal strategy and processes with our students to demonstrate how qlegal as an innovative legal services provider seeks regular feedback from our stakeholders, alters its programmes accordingly and tries to stay current and nimble. in our public legal education programme, we will try being more hands-off with some of the work done by our students, asking them to identify the unmet legal needs of start-ups and entrepreneurs themselves and design resources to help meet those needs. the only guidance will be a requirement that every student participate, that the work be done in teams of at least two students, that the areas of law be restricted to the areas of commercial law that we are insured to cover (corporate, commercial, data protection, employment and ip) and that the work be finished by the end of classes, prior to exams. given that our public legal education student cohort includes at least two students who are themselves entrepreneurs and one very talented graphic artist, maybe we will be surprised by what the students produce when we give them the freedom to take control. reviewed article 103 it is important to note that two of our staff are entrepreneurs. clemence tanzi, who leads on our externship programme, graduated from ccls and then joined qlegal as a staff member back when it was truly a start-up. clemence also has her own coaching business which she runs in addition to her position with qlegal. one of the authors, emily, who leads on our legal advice clinic programme, was a solicitor in private practice for ten years before leaving to start her own business. 6.2 reconciling teaching substantive law versus entrepreneurial thinking one of the initial reasons for setting up clinical legal education and one of its key selling points is that it gives students the chance to reinforce their legal knowledge. writing a practical, commercially aware advice letter for a start-up is an excellent way to test whether you really understand ip law or corporate law. similarly, standing in front of an audience for an hour and a half speaking with them about ip law or data privacy and how it applies to their start-ups, or sixth-form college class assignment, is a great way to see whether you really understand these areas of law yourself. we don’t want to take away this important part of how students benefit from clinical legal education. instead, we want to teach our students to think like a lawyer and to think like an entrepreneur. after all, both qualities are sought by clients and by the legal marketplace. but fitting in time for both competencies is easier said than done, and the goal of teaching law students to think like a lawyer can come into direct conflict with the goal of teaching law students to think like entrepreneurs. international journal of clinical legal education thinking like entrepreneurs 104 for example, while we want students to get comfortable with failing forward in order to think more like an entrepreneur, we do not want to withhold our feedback and support for their letter or their workshop, and we have a professional and ethical obligation to our clients and our other stakeholders (including workshop hosts and law firms) to produce high quality work. how do we stop ourselves from teaching and explaining and aiming for “perfection”, in order to let a student learn by failing? and is it ethical for a law clinic to allow mistakes to go forward in a legal advice letter or a legal education workshop? 6.2.1 what are we doing to overcome this obstacle? one way that we can and do allow our public legal education students to “fail forward” is the interactive, question and answer part of their workshops, during which the audience is likely to ask questions that stump our students. we train our students to prepare for these questions and to get comfortable with saying “that’s a great question. i don’t know the answer to that question. i would be happy to do some additional research and add some more information to the slides before i share them with you.” or “that’s a great question. i suggest you apply for qlegal’s legal advice clinic.” we also spend time in dress rehearsal mooting potential questions. however, no matter how much we prepare, the audience in the actual workshop, whether sixth form college students or start-ups, almost always asks questions that make the students realise that they don’t yet fully understand every aspect of the reviewed article 105 legal material they are teaching. we deliberately design our workshops so that the law students manage the presentation and question and answer session by themselves, with qlegal staff in the background only and the supervising uk solicitors not in attendance. students faced with questions they cannot answer and in possession of growth mindsets leave the workshop determined to learn the subject matter better next time and learn from their mistakes. 6.3 meetings with entrepreneurial clients one of the authors, eliza, looks back on her 15 years of clinical teaching and reflects that the client work that most developed her own entrepreneurial mindset, and that of her students, involved substantial face-to-face contact with clients with different lived experiences, in unfamiliar settings, where it became clear that the client had a much larger appetite for risk than the legal team. for example, meeting a small business owner client in his place of business (a small trailer located in a parking lot in an industrial part of town) to advise him on employment law and hearing through his questions that he was not interested in bringing on new staff as employees (versus contractors) as that involved too many taxes and too much paperwork. it became clear that our next counselling session needed to cover the risks were our client to proceed in hiring his staff as contractors, specifically the risk of being audited and the associated fines. settings like that one international journal of clinical legal education thinking like entrepreneurs 106 provided an excellent opportunity to develop a tolerance for ambiguity, learn to fail forward and practise creativity with limited resources. however, entrepreneurs are busy people, often juggling day jobs while they start their business or simply busy running a start-up with many unknowns. how do we design our programmes so that those same individuals spend more face-to-face time with our students? it’s not easy. for example, one of our public legal education projects this semester is to design corporate law and ip law legal education videos for a london charity that supports small business owners. while it is helpful to meet with and hear from the head of the charity and staff members, it would be hugely valuable for the law students to take the brief directly from small business owners and receive feedback from small business owners prior to final production. similarly, our workshop hosts (staff of incubators, university professors and sixth-form college teachers) meet with qlegal staff and with qlegal students explaining their expectations for the workshops and providing feedback after the workshop is delivered. but it would be even better if we could take the initial brief from the actual audience members and get feedback directly from our audience. arguably the best way to develop excellent public legal education resources and simultaneously to teach students to have an entrepreneurial mindset is to engage in design thinking with our public legal education audiences, as we do with our reviewed article 107 innovation projects clients. but this model would require a much larger time commitment from our audiences than we currently demand. 6.3.1 what are we doing to overcome this obstacle? perhaps we simply need to demand more contact time with our clients in exchange for our excellent, free services. in the us, the live client clinic model is quite different from the uk: the commercial law clinics typically represent start-ups and entrepreneurs and work with them for an extended period (a full semester or even multiple semesters) to set up their corporate structures, register their ip, prepare their policies and commercial contracts, etc. students in those clinics get to meet with and counsel their clients in person multiple times over the course of the semester and get a sense for what does and doesn’t work with their clients in terms of communication and counselling styles, including the challenge of turning around legal advice for fast-moving clients. entrepreneurs in the us are equally busy to entrepreneurs in the uk. the solution for many clinics in the us is to make it clear in the engagement letter that clients are required to meet with the clinic multiple times and must stay in frequent, timely contact with the clinic. 7. conclusion teaching law students to have an entrepreneurial mindset, as well as general commercial awareness, is a worthwhile goal for all the reasons discussed above: it improves the work product delivered to entrepreneur clients, it gives students international journal of clinical legal education thinking like entrepreneurs 108 valuable skills for the workplace making them more employable and it teaches students how to navigate the changing legal services marketplace. in many ways, teaching students to have an entrepreneurial mindset is a natural fit with commercial law clinics where our clients are themselves start-ups and entrepreneurs and can model their mindsets for us. our interactions with our clients teach us that they are comfortable with ambiguity and risk, that they are not afraid to fail forward and that they are creative with limited resources. however, at the same time, the do-it-themselves, busy, action-oriented nature of entrepreneurs might make them less available than other clients to meet with us and our students and, ironically, might make us more inclined to think like lawyers to counterbalance their impulsive, risk-comfortable behaviours. thinking through the obstacles and opportunities for teaching the entrepreneurial mindset in commercial law clinics is a worthwhile exercise to improve the opportunities we provide our students. project1 “no me des el pescado, enséñame a pescar” “do not hand me fish, teach me how to fish”1 community lawyering in puerto rico: promoting empowerment and self-help myrta morales-cruz2 introduction law 232 of august 27, 2004 has a special meaning to the people residing in some of puerto rico's poorest communities. it was the result of the hard work, during a period of a year and a half, of leaders from some of these communities and my students, the students of the community development section of the legal aid clinic of the university of puerto rico’s school of law. the story of law 232 can provide insight into what the role of a lawyer can be in the battle against poverty. to understand the story of this puerto rican law, one has to go back to august of 2002. during that month the university of puerto rico's school of law legal aid clinic inaugurated its community development section. the community of juan domingo in the municipality of guaynabo had approached the clinic before the community development section had started operating. juan domingo had been formed more than eighty years ago by squatters (or “land rescuers” as they prefer to be called). it was facing a removal process since the municipality of guaynabo, which has the highest per capita income in puerto rico, had decided to use the power of eminent domain against the community. at the beginning of august, 2002, the director of the legal aid clinic took me to a meeting in community lawyering in puerto rico: promoting empowerment and self-help 83 1 popular saying frequently used by jorge luis oyola, leader of the los filtros community, located in guaynabo, puerto rico. i want to thank carmen correa matos, hiram meléndez juarbe, efrén rivera ramos, dan squires, william vázquez irizarry and lucie white for their help with this paper. i dedicate this paper to the memory of my mother, myrta cruz pérez. 2 associate professor of law, university of puerto rico school of law. b.a., georgetown university; j.d., university of puerto rico school of law; ll.m., harvard law school; m.jur., oxford university. this is an expanded version of a paper that was originally presented at sela (seminar in latin america of constitutional and political theory) in june, 2005. the paper was subsequently published in spanish by the university of palermo (argentina). juan domingo with the purpose of announcing to the community the opening of the community development section. at the time we did not know that the juan domingo community was holding a meeting to which it had invited other guaynabo communities that were facing a similar problem. several days after the meeting in juan domingo, i received a phone call from jorge oyola, president of the neighborhood committee of the los filtros community, also located in guaynabo, who had attended the juan domingo meeting. mr. oyola requested legal assistance for his community. on a sunday night in september of 2002, i attended a meeting with my group of students and professor carmen correa, who at that time was also in charge of the community development section of the clinic. we met with a group of thirteen people who comprise the los filtros neighborhood committee. that night they explained to us that they had knowledge of a plan by the municipality of guaynabo to use the power of eminent domain (initiate an expropriation process) against the community and they told us the story of their community.3 the los filtros community was founded over ninety years ago. at that time it was far away from the urban area, located in a rural area of guaynabo. however, due to urban sprawl, the community is currently located in the middle of urban guaynabo and it is surrounded by several of the richest neighborhoods in guaynabo and in all of puerto rico. the cost of the roughly twelve acres of land, where the community is set and more than one hundred and twenty families live, is extremely high at the present time.4 during our first meeting in the community we were informed that the neighborhood committee had organized three months ago with the purpose of blocking the expropriation of the land which they owned. the committee had been successful in having the urban development and housing commission of the house of representatives start an investigation about the proposed use of the power of eminent domain by the municipality of guaynabo against the los filtros community. also, the committee had asked the state government to declare it a “special community”. the concept of a “special community” was coined by sila maría calderón, former governor of puerto rico (2000–2004), while she was mayor of san juan during the years 1996 to 2000. during her term as mayor, more than fifty low income communities in san juan were designated “special communities”. the main goals of this program were improving the infrastructure conditions in these communities and stimulating community empowerment.5 when calderón became governor of puerto rico in 2001, the first law of her administration was the law of special communities which extended the special communities program to the entire island. when we first met with members of the los filtros community they explained to us that they had applied for admission to the special communities program since the mayor of guaynabo had not submitted the community for inclusion. they told us that they wanted the protection that the law 84 journal of clinical legal education december 2007 3 the power of eminent domain is the power of the state to take private property for public use upon payment of just compensation. constitution of puerto rico, article ii, section 9. 4 there is a water treatment or water filtering plant next to los filtros, hence the name. the community was originally formed by the workers who came to build the water treatment plant and to work in a nearby dairy farm. they settled in the area with their families. in 1979 residents of the community were given title to the land by the state government. 5 the following criteria are taken into account in deciding whether a community is going to be declared a “special community”: high percentage of illiteracy, high percentage of people living under the poverty threshold, high unemployment rate, families financially supported by only one member and a long history of environmental problems and of neglect in the provision of basic services. law for the development of special communities in puerto rico, law 1 of march 1st, 2001, article 8, 21 l.p.r.a. sec. 967 (2004). of special communities offered to low income communities and that they wanted to be in charge of the development of their community. one of our first tasks as legal advisors to the community was helping the committee to prepare for the public hearings that were going to be held at the house of representatives in november, 2002, as part of the investigation of the expropriation process. the group of students analyzed the law of special communities, the law of expropriation and the law of autonomous municipalities. the law of autonomous municipalities granted the power of eminent domain (also known as expropriation or condemnation power) to municipalities in 1991.6 this power was granted subject to the requirements set by the law of expropriation.7 the law of expropriation, in accordance with the puerto rico constitution, requires that the state have a “public use” in order to be able to exercise the power of eminent domain.8 however, the supreme court of puerto rico has interpreted the term “public use” in such a broad manner that it is practically impossible to be successful in questioning the “public use” alleged by the government. even making an area look more attractive has been recognized as a valid “public use”.9 on the other hand, a study of the law of special communities revealed that the office of special communities had no power over autonomous municipalities; it only required that the office coordinate with autonomous municipalities projects in special communities.10 the municipality of guaynabo claimed that in the case of expropriation against los filtros its “public use” was the construction of “social interest” housing. however, the community had not been informed about the plans of the municipality. it was of great concern that the requirements in order to qualify for “social interest” housing that the municipality of guaynabo had established in a manual which the community had managed to obtain were strict, disqualifying many members of the community from such housing projects. for example, only people with “moderate income” qualified for these social interest housing projects. neither people less than sixty two years old who lived alone, nor people who were not citizens of the united states qualified.11 the manual also stated that if a person did not accept the property value set by the municipality of guaynabo, she would not be eligible for social interest housing.12 additionally, the members of the neighborhood committee had heard that the proposed housing community lawyering in puerto rico: promoting empowerment and self-help 85 6 puerto rico’s law of autonomous municipalities, 21 l.p.ra. secs. 4051 (c) and 4453 (2004). 7 law of expropriation, 32 l.p.r.a. sec. 2901 et seq. (2004). 8 “private property may not be taken except for public use and upon payment of just compensation as provided by law” (translated from spanish), constitution of puerto rico, article ii, section 9. 9 ela v. 317.813 cuerdas de terreno, 84 d.p.r. 1 (1961). 10 law for the development of special communities in puerto rico, law 1 of march 1st, 2001, article 4, 21 l.p.r.a. sec. 963 (2004). 11 puerto ricans are citizens of the united states. legal permanent residents of the united states, mostly dominican citizens in the case of the guaynabo communities, are excluded from these social interest housing projects. 12 this is particularly problematic since the social interest apartments that have already been developed by the municipality of guaynabo are subject to a mortgage for the amount of money that is owed after substracting the value of the condemned property from the much higher value that has been set for the new apartments. another concern regarding the new apartment complexes are the maintenance fees that have to be paid for the communal areas. project was a small apartment complex.13 they feared, according to their own words, being caged “or "locked up in boxes”. people were afraid of losing their sense of a close knit communal life. this life is very tied to the land, which they use to raise animals and harvest fruits and vegetables. they also feared losing the vegetation (plants and trees) of the community, which is one of the few green spaces left in urban guaynabo. after analyzing the applicable law, we explained to the los filtros neighborhood committee that it was practically impossible to block the expropriation process in court. if they wanted to block the expropriation their only option would be to seek a change in the statutes. the law of special communities did not grant protection as the neighborhood committee had initially thought. we discussed, then, the possibility of seeking an amendment of this statute. after studying the law of autonomous municipalities we realized that municipalities had one particular limit on their use of the power of eminent domain: when they intended to use this power in relation to land currently owned by the state government or land that had been owned by the state government in the past 10 years. in such cases, the municipality had to obtain a joint resolution from the legislative assembly of puerto rico authorizing the expropriation.14 we decided that we could try to submit a similar amendment in the case of expropriation of land located in special communities. this would provide a public forum for the community and would give it an opportunity to present its position to the legislative assembly who would then have (together with the governor, who must sign joint resolutions for them to be valid), for all practical purposes, the final decision whether to authorize or not an expropriation process. after much discussion we decided that ideally we would seek an amendment to the law of special communities exclusively and that we would not seek to amend the law of autonomous municipalities since the issue of the so called “municipal autonomy” was a very difficult political issue. since 1991, when the statute was enacted, mayors from the two political parties that have alternated power in puerto rico have traditionally united to block all efforts that in any way would affect municipal autonomy. also, the neighborhood committee wanted, in the words of their president, to “give more force” to the law of special communities because they approved its public policy of favoring community empowerment. los filtros is not the only community in puerto rico facing an expropriation process from an autonomous municipality. in addition to juan domingo and los filtros, the community of mainé in guaynabo approached the legal clinic in search of legal assistance. they are all part of a group of low income communities for which the municipality of guaynabo has expropriation plans. the barriada morales community in the autonomous municipality of caguas also approached the legal clinic looking for help, after watching a television report about juan domingo 86 journal of clinical legal education december 2007 13 these types of small apartment complexes are known in puerto rico as “walk up apartments”. the buildings are two to four stories high . each floor usually has two apartments. the complexes have stairs, walkways, a small garden and a parking area which are all communal spaces. currently people in los filtros live in wooden or concrete houses that they have built, surrounded by plants and trees. from the highest points of the community there is a beautiful view of the entire bay of san juan. 14 puerto rico’s law of autonomous municipalities, 21 l.p.ra. sec. 4453 (2004). and showing up in the community to learn about what was happening.15 the community of villa caridad, located in the autonomous municipality of carolina, was facing the same problem and sought legal assistance from the legal aid clinic.16 in february of 2003, during a visit that the president of the puerto rico house of representatives made to the community as part of the investigation process that the house had initiated, the students of the community development section of the clinic discussed with him the proposed amendment to the law of special communities. the president thought that the amendment was a good proposal, but warned the students that the mayors would pressure the district legislators to oppose the amendment.17 however, he remarked that he would be willing to submit a bill with the amendment since he strongly supported the public policy behind the law of special communities. the students drafted the bill and together with the coalition of communities united against expropriations and abuse, known as ccuca, a coalition that was formed by the los filtros, juan domingo and mainé communities in guaynabo, the barriada morales community in caguas and the protectors of the guaynabo river, started a lobbying process in the puerto rico house of representatives. during the lobbying process we visited the offices of all fifty two representatives. students and community residents explained the purpose of the bill and advocated that it be made into law. it was of vital importance to ccuca, the coalition, that the bill be embraced by leaders from the three main political parties in puerto rico. this was accomplished when the two minority leaders decided that they wanted to be co-authors of the bill, together with the president of the house. the bill was assigned to the urban development and housing commission, which held public community lawyering in puerto rico: promoting empowerment and self-help 87 15 puerto rico’s caribbean business magazine (october 23, 2003) published an article about autonomous municipalities in the island which highlights some of the reasons for the gentrification process (displacement of the poor by the rich in urban areas) that our clients are trying to avoid. the mayor of guaynabo commented: “municipalities work on a local level, with local investors...they come to me, i sit down with them and we do everything to make it happen. we provoke development...the sheer size of the central government doesn’t allow it to have such close interaction with the investors, or even with the communities.” according to this article the strategic plan for the municipality of guaynabo is based on the development of housing projects in order to increase its property tax base. the mayor continues explaining: “that way, you help the central government, the local government, and the municipal finances through the collection of property taxes. a resident can move out of guaynabo, but the property will always pay property taxes, whereas a factory can close and take away your revenue.” the mayor of caguas commented: “i have to keep this business running and make the city more attractive each day so that more people come to shop, work, invest, enjoy shows, eat at our restaurants...” the same article concludes about the municipality of carolina that it “...is also aggressively pursuing its portion of property taxes collected by crim” (center for collection of municipal taxes). guaynabo, carolina and caguas are all municipalities that surround the municipality of san juan, puerto rico’s capital. urban sprawl has turned what were once rural areas into centrally located land that is being aggressively sought by private developers. 16 this problem is not exclusive to puerto rico. the institute for justice, a non governmental organization in the united states, published a study documenting the use of the power of eminent domain (by filing a case in court or threatening to file a case) with the purpose of benefiting private developers in more that 10,000 properties between 1998 and 2002. dana berliner, public power, private gain (2003) (available at www.ij.org or www.castlecoalition.org). recently a case questioning the broad interpretation given to the term “public use” in eminent domain cases was brought before the united states supreme court. the court validated “economic development” as a public purpose under the federal constitution. kelo v. city of new london, connecticut, 545 u.s. 469 (2005). 17 the puerto rico legislative assembly has a group of legislators that win by accumulation of votes who do not respond to any particular voting district. these legislators are not as readily influenced by the mayors. hearings in july, 2003. the clinic and ccuca presented separate statements during the hearings. during the process of lobbying the los filtros community and ccuca held numerous activities to further their cause, such as holding press conferences, appearing in radio and television programs and organizing protest marches and rallies, in which we participated and offered our help.18 the clinic helped the los filtros community to connect with the community design workshop of the university of puerto rico’s school of architecture. the community and the architecture students designed a development project for los filtros taking into account the needs and desires of the residents. it was during the preparation for the public hearings that we had one of our most important and difficult discussions. the ccuca had approached other community coalitions to inform them about the bill and obtain their support. it was suggested that the bill be amended to give greater protection to the communities. instead of limiting itself to providing community involvement through the joint resolution mechanism, a referendum in which seventy-five percent of the community voted in authorization of the expropriation process was proposed as another community participation mechanism to be included in the bill. this proposal was the subject of great debate among the members of the ccuca, the san juan coalition of community leaders, my students and me. our main concern was that adding the community referendum mechanism would make the approval of the bill more difficult, since that mechanism gave even more power to special communities facing an expropriation process by a municipality. we feared that advocating this mechanism would have the effect of not obtaining any mechanism at all, that proposing it would, so to speak, kill the bill. after much discussion, we decided to simply mention at the end of the clinic’s statement during the public hearings that some communities had suggested a way of making the bill even more democratic by adding that in order for the legislative assembly to authorize by a joint resolution an expropriation process by a municipality in a special community, the community itself had to authorize the expropriation process by means of a referendum. we decided to observe closely the reaction of the representatives to this new proposal so that we then could decide what to do about it. the proposal was very well received by both the president of the house and the president of the commission that was holding the hearings. the bill was amended to include the community referendum, with the seventy-five percent requirement. statements were presented at the public hearings by ccuca and the clinic, as already mentioned, by the office of special communities, which also supported the bill and by the federation of mayors and the association of mayors, organizations which group together the mayors from the two main political parties in puerto rico. both the federation and the association strongly opposed the bill for its alleged interference with municipal autonomy. these two associations exert great influence over district legislators in puerto rico. the state office of the commissioner for municipal matters also opposed the bill. the justice department favored the inclusion of a mechanism in order to protect special communities from unwarranted expropriations but it argued that the office of special communities should have the final decision. this suggestion was openly discarded by the legal advisor of the office of special communities during the public hearings. 88 journal of clinical legal education december 2007 18 the community development section of the legal aid clinic helps and supports its clients in activities with the press and in political activities, but we limit our participation in order to promote client empowerment. the bill was approved unanimously by the house of representatives in november, 2003. it was then sent to the senate, where it was assigned to the commission for municipal governments, public corporations and urban development. the group of students of the second year of the community development section of the clinic and ccuca were in charge of the lobbying process in the senate. once again, all the senators were lobbied and both the clinic and ccuca participated in the public hearings. the bill was approved by the senate on the last day of the legislative session, in june, 2004. the senate decided to amend not only the law of special communities, but also the law of autonomous municipalities to include both mechanisms: the community referendum followed by the joint resolution in the case of expropriation in land located within special communities. the bill was sent to the governor for her signature. after several visits to the governor's mansion to continue our lobbying process, this time at the executive level, the governor signed the bill, which became law 232 of august 27, 2004. since january of 2005 puerto rico has a new government: a governor from the same political party as the former governor (who created the special communities program) and a legislative assembly controlled by a different political party. the two associations of mayors quickly lobbied the governor’s mansion and the legislative assembly in order to repeal law 232. two bills were introduced to modify the law: one which repealed it in its entirety and another one (presented by the governor) which repealed the joint resolution mechanism. we have been able to prevent any tampering with law 232 by attending public hearings, marching in front of the legislative building and aggressive lobbying. but, the struggle continues… in may 4 of 2005, we won the first court cases in which law 232 was raised as a defense. the municipality of guaynabo started filing expropriation cases against properties located in the los filtros community in december of 2004. my students asked for dismissal of the cases because of non compliance with law 232. as i already mentioned, all cases were finally dismissed. if it had not been for law 232 our only practical option would have been to request more compensation, but it would have been virtually impossible to question the “public use” alleged by the municipality of guaynabo because of the broad interpretation that the supreme court of puerto rico has made of the term. the leader of the los filtros community has formed, together with leaders from other special communities, the puerto rico alliance of community leaders. they have started organizing special communities all around the island.19 the alliance is using law 232 as an example of what poor people can achieve if they work hard together. in our story neither the law nor the lawyers have provided a final solution to the displacement of poor people in puerto rico. law 232 could be repealed at any moment. but we have used law as a tool for our clients to become more empowered, to gain more power for themselves and for their communities. we have made it clear to the communities that the true power to prevent their displacement lies in them. i based the advocacy model of the community development section of the university of puerto rico's school of law legal aid clinic on the model developed by professors lucie white, of community lawyering in puerto rico: promoting empowerment and self-help 89 19 there are close to seven hundred special communities in puerto rico. harvard law school, and gerald lópez, of new york university's school of law. it is an advocacy model that centers around process instead of results. lópez has referred to this model as one where the focus is on “process oriented client empowerment”.20 traditionally poverty lawyers have concentrated on developing legal strategies in order to obtain results: “result oriented legal strategies”.21 lópez argues for a model more focused on the process, one that will allow the poor or low income client to take control of his or her situation and that will promote self-help and empowerment.22 professor lucie white has written extensively about this type of advocacy model, which has been called by some commentators “law and organizing”.23 pedagogical work, based on a dialogue with the community, is crucial. the theory and methodology of popular education developed by the brazilian educator and lawyer, paulo freire, are extremely useful in this type of work.24 freire critiques traditional education by labeling it “banking education” since it presupposes that there is an “empty brain”, that of the person to be educated, where the educator “deposits” information. for education to be truly transformative it should start from the experience of the participants and be based on dialogue and action; it must be a participatory experience, generating a process of “consciousness raising”.25 as early as 1970, steven wexler, in an article published in the yale law school law review, had remarked that since the problems of the poor are fundamentally problems of a social nature, not individual problems, poor people had to organize and act for themselves. to support this process, poverty lawyers had to radically depart from the traditional lawyering role and do work similar to that of a teacher, turning each moment into an occasion for poor clients to practice skills and establish networks that would allow them to make change.26 lucie white has described three visions of how the “public interest” or “progressive” lawyer promotes change.27 the first image of lawyering is the contest of litigation. in this image the lawyer’s role is to design and win lawsuits that will further the substantive interest of the client. the lawyer “translates” grievances into legal claims.28 in this image of lawyering the lawyer does not question the structure of the law itself, by asking whether it sometimes prevents him or her from translating the client's grievances into good legal claims. white adds: “nor is it his role to question the judicial system, asking whether it sometimes prevents him from securing remedies that really work.”29 the lawyer uses the courts as a direct mechanism for redressing injuries and redistributing power to subordinated groups. in this image of lawyering the client is “in the background”.30 as white remarks, public interest litigation has brought about substantive change. however, in some circumstances “courts have difficulty fashioning adequate remedies.”31 this can happen when the structure of a bureaucracy or its routine discretionary functioning is questioned and “courts find it difficult to craft and implement effective relief ”.32 another example is where the 90 journal of clinical legal education december 2007 20 gerald lópez, rebellious lawyering: one chicano's vision of progressive law practice (1991). 21 id. 22 id. 23 see, for example, lucie white, to learn and to teach: lessons from driefontein on lawyering and power, 1988 wis.l. rev. 699. 24 paulo freire, pedagogy of the opressed (1970). 25 id. 26 steven wexler, practicing law for poor people, 79 yale l.j. 1049 (1970), as cited by white, supra note 23. 27 see lucie white, supra note 23. 28 id. at 755. 29 id. 30 id. at 756. 31 id. 32 id. courts have limited jurisdiction to redress an inadequate appropriation of public funds, which can be the root of many problems.33 the most serious limitation of this image of lawyering is that in order to get into court, clients must present their claims as similar to precedent claims that courts have already accepted. litigants must propose remedies that are “coextensive with these confined claims and that can be feasibly administered by the courts”.34 this can result in co-opting social mobilization. as white concludes: “through the process of voicing grievances in terms to which courts can respond, social groups risk stunting their own aspiration. eventually they may find themselves pleading for permission to conform to the status quo.”35 the second image of lawyering presented by white is “law as a public conversation”. in this image the lawyer recognizes that litigation can sometimes work to change the distribution of social power, but these effects are secondary to “law’s deeper function in stimulating progressive change”.36 litigation can coerce change but it “is also public action with political significance.”37 the law and its practice constitute a discourse about social justice; it has a cultural meaning.38 in the second image of lawyering success is not measured by a whether a case is won. it is rather measured by such factors as “whether the case widens the public imagination about right and wrong, mobilizes political action behind new social arrangements, or pressures those in power to make concessions”.39 a limitation of this image of lawyering is that it cannot respond to subordinated clients who do not perceive their grievances clearly, the ones that have a more realistic assessment of the their options, the ones that distrust the “system”. these clients never get the attention of the lawyer.40 white suggests that the lawyer work with these groups of subordinated people in a joint project of “translating felt experience into understandings and actions that increase their power”.41 this is the third image of lawyering: “lawyering together toward change”. the third image of lawyering has two main components: pedagogy based on dialogue and strategic work. paulo freire’s popular education theory and the feminist methodology of “consciousness raising” can be very useful in this type of lawyering: freire's work shows how an active, critical consciousness can re-emerge among oppressed groups as they reflect together about concrete injustices in their immediate world and act to challenge them. he views this liberation of consciousness as fundamentally a pedagogic process. it is an unconventional, nonhierarchical learning practice in which small groups reflect together upon the immediate conditions of their lives.42 according to white, in this pedagogic model, no one monopolizes the role of the teacher. humility is crucial for the lawyer who wants to venture into this type of work. there can be no real dialogue if the lawyer believes that he or she has privileged knowledge about reality or politics. the lawyer has to recognize his or her position as an outsider and earn the clients’ trust.43 community lawyering in puerto rico: promoting empowerment and self-help 91 33 id. 34 id. at 757. 35 id. 36 id. at 758. 37 id. 38 id. 39 id. at 758–759. 40 id. at 760. 41 id. 42 id. at 761. 43 id. at 762. lawyering in the third image also involves strategic work. the lawyer must help the clients to plan concrete actions “that challenge the patterns of domination that they identify”.44 this is a learning process where the clients learn to view their relationship with those in power not as a static condition, but rather as “an ongoing drama”. the lawyer has to help the group “learn how to interpret moments of domination as opportunities for resistance”46: the lawyer cannot simply dictate to the group what actions they must take. neither the lawyer nor any single individual is positioned to know what actions the group should take at a particular moment. sound decisions will come only as those who know the landscape and will suffer the risks deliberate together. the role of the lawyer is to help the group learn a method of deliberation that will lead to effective and responsible strategic action.47 white asks why this work should be thought of as lawyering at all. she answers that fluency in the law, defined as “a deep practical understanding of law as a discourse for articulating norms of justice and an array of rituals for resolving social conflict”48 will improve a person's effectiveness and flexibility in this type of work: an understanding of law as discourse on norms will help [the lawyer] work with the clients to deepen their own consciousness of their injuries and their needs. knowledge of the law’s procedural rituals will give the group access to a central arena for public resistance and challenge. it is also possible, however, that professional identification as a lawyer can narrow one's strategic imagination. perhaps the best arrangement is for lawyers-outsiders to work side by side with outsiders trained in other fields.49 the community development section of the clinic’s advocacy model can be compared to the second and third images of lawyering discussed by white. we are using law to widen the public’s imagination about right and wrong, to mobilize political action behind new social arrangements and to pressure those in power to make concessions. our work has exposed the injustice of using the power of eminent domain for gentrification purposes. we have mobilized political action to protect the poor from displacement and to support the development of housing projects by the communities themselves; and we have pressured the executive and legislative branches of government into supporting our clients. but we are, most importantly, focusing on pedagogy based on dialogue and strategic work to promote client empowerment, and engaging in multidisciplinary work. our work is a mutual learning process: we learn from the communities and the communities learn from us.50 for example, our clients have learned more about the law. statutes, judicial opinions and law in its broadest sense have been demystified for them. we have learned much about the reality of poor people, about their day to day struggle, and about politics, among other things. our strategies are 92 journal of clinical legal education december 2007 44 id. at 763. 45 id. 46 id. 47 id. at 763–764. 48 id. at 765. 49 id. 50 defining who the client is can sometimes be difficult in community lawyering. we have chosen to address this issue by focusing on working with neighborhood committees democratically elected by a community. devised together. this process of mutual collaboration and learning has made our work together more effective. finally, engaging in multidisciplinary work with other professionals, such as architects and community social workers and psychologists, has helped us to better address the problems of the community as a whole. our advocacy model can also be compared to business or corporate lawyering.51 our clients, like corporate clients, are “clients for life”.52 we counsel them without limiting our strategies to litigation, or to purely legal approaches, and we help them to design and implement long term strategies so that they can gain more power in our society. during our work, we have noticed that lobbying has been a very successful tool for corporate lawyers in puerto rico. the largest law firms in puerto rico incorporate legislative and executive lobbying as part of their work or have lobbying divisions.53 we have found lobbying to be a good strategy for promoting empowerment among our clients. in the court, we, the lawyers, are in control of the process. lobbying makes it easier for us to work side by side with our clients. they gain power as they speak and argue about their situation, about the law, about how the law should be… their voice is independent from our voice as lawyers. focusing on the legislative branch also makes it easier for our clients to gain access to the press and to make alliances with other community groups, which helps to create more public discussion about the issues. the public hearings have been crucial in the empowerment process. finally, the fact that a statute, once approved, has a direct impact on more people that an average court decision, helps to bring more people into the process and furthers collective empowerment.54 community lawyering in puerto rico: promoting empowerment and self-help 93 51 see lawyering for poor communities in the twentyfirst century, the seventh annual stein center symposium on contemporary urban challenges, articles published in 25 fordham urban law journal (1998). 52 susan d. bennett, on long-haul lawyering, 25 fordham urban law journal 771 (1998). 53 since the 1980s attorneys working for institutions funded by the legal services corporation, which is the case of most of the organizations providing free legal services in civil cases in the united states and puerto rico, cannot engage in lobbying, organizing or class action lawsuits. id. at 775 (quoting united states federal statutes that prohibit such activities). lawrence friedman has suggested that the access to justice problem in the united states is not that the poor have no counsel, but rather a problem with what the poor would demand if they had adequate counsel. lawrence friedman, access to justice: some comments, 73 fordham law review 927 (2004). 54 i want to clarify that i am not suggesting that the legislative process is fairer than the judicial process. the rich can make their voices heard more easily in the legislative branch, just as they can in the courts. my perception so far has been that engaging in the legislative process creates more opportunities for the voices of the poor to be heard and for collective empowerment. much could be written about the difficulties of lobbying such as, for example, that it is extremely time consuming, but that could be the subject of another paper. our work is trying to open spaces of what boaventura de sousa santos calls “direct participatory or base democracy”. de sousa santos advocates radicalizing democracy by creating more spaces of participatory democracy. he believes that the postmodern project of participatory democracy will prevent the destruction of the modern project of representative democracy, and that the struggle for extra economic or post materialist goods, such as the environment or peace, a postmodern struggle, will be conditioned by the modern struggle for the redistribution of economic goods.55 the story of law 232 shows how representative democracy can be used to open spaces for direct participatory democracy. if we had adopted a more traditional litigation approach as lawyers, our clients would have already been displaced from their communities. but more importantly, the opportunities for empowerment would have been lost. our work together has been a process of mutual learning. the communities with which we have worked have gained access to the political process and have formed an alliance with communities all over puerto rico. they have organized, protested, marched, held press conferences, prepared their own development projects… their voice is being heard. the primary power to radicalize our democracy by continuing to create true spaces of participation resides in them. 94 journal of clinical legal education december 2007 55 boaventura de sousa santos, the postmodern transition: law and politics (1991) [from lloyd's introduction to jurisprudence (sixth edition 1994). de sousa santos explains his progressive political postmodern theory (at 1208–1209):"the proliferation of political interpretive communities represents the postmodern way and, indeed, the only reasonable way of defending the accomplishments of modernity. i mentioned earlier, among such accomplishments, a fairer distribution of economic resources and a significant democratization of the political system in the conventional sense. as with all processes of transition, the postmodern transition also has a dark side and a bright side. the dark side is that, as the reification of class and the state are further exposed, the modern tools used until now to fulfill and consolidate those promises, that is, class politics and the welfare state, become less reliable and efficient. the proliferation of political interpretive communities will broaden the political agenda in two convergent directions. on the one hand, it will emphasize the social value of extraeconomic goods or postmaterialist goods such as ecology and peace: on the other hand, it will expand the concept and the practice of democracy in order to incorporate direct participatory (or base) democracy. the success of the struggle for extraeconomic goods will be conditioned by the success of the struggle for economic goods and for a fairer distribution of economic resources. the struggle for participatory democracy will prevent the emasculation of representative democracy. it is in this sense that the promises of modernity can only be defended, from now on, in postmodern terms." clinical legal education in the 21st century:still educating for service? 33 clinical legal education in the 21st century: still educating for service? judith dickson1 introduction as a lawyer and clinical legal educator, i have direct experience of the ways in which clinical legal education programmes in australia2 provide legal services to poor and disadvantaged people. in this context i recently began to wonder about the image of lawyers and of the legal profession, that other clinical educators and i portray in our work and about the values underlying clinical legal education.3 i began to think that despite a longstanding commitment to access to justice,4 clinical legal education in australia might actually be acquiescing in a notion of professionalism that is counter to that commitment. in this article i explore the connection between the continuing commitment of clinical legal education to the provision of legal services to those unable to otherwise afford them and the notions of professionalism traditionally adopted by the organised legal profession. in doing so i focus on the australian legal environment as the one with which i am most familiar. however, i believe the issues i raise are relevant for other legal educators concerned about the state of the legal profession in their jurisdictions and about the values which clinical legal education imparts to law students. the underlying premise of this paper, and my starting point, is that clinical legal education as a method of legal education developed in the united states in the 1960s and in australia in the 1970s primarily in response to an obvious lack of legal services for the poor.5 a service ideal therefore 1 lecturer and clinical supervisor, school of law and legal studies, la trobe university, melbourne, australia. earlier drafts of this paper were presented at the mid-atlantic clinical workshop, baltimore usa and the commonwealth legal education association conference, jamaica in late 1998. i thank my colleagues in both forums for their constructive comments. i also thank my colleagues at la trobe, margaret thornton and mary anne noone. 2 i have also had the opportunity to observe programmes at work in the united states and the united kingdom and to talk to clinical legal educators from parts of africa and india. 3 the idea of the law teacher as role model is still relatively new. see (menkel-meadow 1991). le brun and johnstone (1994)discuss the implications of teachers as role models for student learning and dickson and noone (1996) present a practical illustration of role modelling within clinical legal education. 4 see the discussion later in the article of the origins of clinical legal education. 5 i have reached this view from my reading of the early literature on clinical legal education. see, eg, the writings of william pincus and others eg, pincus (1980) johnson (1973) grossman (1974) and papers presented at the conference of the council on legal education for professional responsibility clepr (1973). for an australian view see hanks (1976) smith (1984) noone (1997). while demand from the practising profession and law students for practical skills training was a factor in the development of clinical legal education, my view is that this alone would not have resulted in its rapid growth. 34 journal of clinical legal education november 2000 underpinned the educational adventure. this commitment to service is explored in the article in a discussion of the origins of clinical legal education in both those countries. i argue that the legal profession in australia, at least through the voice of its professional organisations, has traditionally adopted a particular view of itself as a ‘profession’. this view, in essence, has been that membership of the legal profession is a ‘calling’, that legal practice is not primarily a commercial activity and that a characteristic of the profession which distinguishes it from other trades or occupations is that members have an obligation to ‘serve the public’ in their practice of the profession.6 i suggest that clinical legal education is based on a similar professional ideal. recently, there have been challenges to the legal profession’s view of itself and of its role in the community. in both australia and the united kingdom governments have sought to demystify the legal profession and to attack its traditional self-regulatory status.7 attention has also been focussed on the legal profession’s monopoly over the delivery of legal services. one effect of these inquiries i think, has been that the profession’s sense of identity has been shaken. the identity of clinical legal education is also, i suggest, at stake if it is based on a view of the legal profession that is no longer relevant. in this article i argue that it is time to rethink and redefine the values of clinical legal education. i hope that in doing so, clinical legal educators can contribute to the development of a new vision of professionalism. structure of the article the article is in three parts. in the first part i examine the notion of a profession which i argue the legal profession has publicly adopted. i then look at the ways in which the legal profession has used and relied upon this notion to justify maintenance of a privileged position vis-a-vis the provision of legal services to the community. in the second section i briefly discuss the beginnings of clinical legal education in australia and compare these with its counterpart in the united states. i then discuss what i see as the link between clinical legal education and the notions of professionalism discussed earlier. the third section asks whether the traditionally espoused ideals of the legal profession can be sustained in the face of recent and continuing challenges to its role in the legal system. i examine the trend in australia to see lawyers as inhibiting access to justice rather than assisting it. these challenges (or attacks depending on one’s viewpoint) on the legal profession have raised the possibility that the legal profession is viewed at least by government as no different from any other 6 i am interested here in the idea that the legal profession has, of itself, as expressed by the leaders of the professional organisations, members of the judiciary and so on. clearly, this idea may be narrower in scope than concepts of professionalism described in sociological literature. i hasten to add that i have not conducted any large-scale empirical research in this area a project for the future. see, however, kirby (1996) and dawson (1996) and for a united states expression of the view see baillie (1994-95). 7 the list of inquiries would fill a page or more. however, in australia the list includes reports by two state law reform commissions (new south wales law reform commission 1982) (law reform commission of victoria 1992), the victorian attorney-general (attorney-general’s working party on the legal profession 1995) the commonwealth government (senate standing committee on legal and constitutional affairs, 1991-1994), trade practices commission ( 1994) access to justice committee ( 1994). in the united kingdom, the lord chancellor’s department green paper (lord chancellor’s department (uk) 1989) shocked the legal profession in that country. indirect challenges continue in government initiated inquiries into the costs of civil justice. see, eg, (lord woolf 1996)and the recently completed report of the australian law reform commission (australian law reform commission 2000). clinical legal education in the 21st century:still educating for service? 35 occupation or industry. if it loses both its monopoly over legal services and its privilege of selfregulation, inherent characteristics of a profession under the traditional view, do its members in turn owe any duty to serve the public? finally, i discuss the implications for clinical legal education of these possible or likely changes in the legal profession’s espoused ideals. i conclude that clinical educators must pay attention in their teaching to developing a new vision of the lawyers’ role that does not rely on adherence to privileged and monopolistic practices. i suggest there are three options for this new vision and i encourage clinicians to retain the longstanding commitment to access to the legal system within a new vision of professionalism. the notion of a profession i do not intend here to survey the sociological literature on professions and professionalism.8 while theories of the profession have changed and developed since the 1930s the ‘ideal-type’ of profession is generally agreed to possess certain characteristics (larson 1977). typically, these include the following: • a period (usually long) of education and training • possession of certain skills and expertise • ethical rules or code • monopoly over delivery of a particular service ( or monopoly over provision for a fee) • control over entrance to the profession via the setting or educational and training requirements • self-regulation • commitment to public service once the legal profession became a cohesive group9 it clearly possessed at least the first six characteristics. the profession itself, or at least the professional organisations presenting a unified public face for the legal profession, has seen these traits as defining and has clung tenaciously to the idea that because as a group it possessed them, it was set apart from other occupations.10 whether this is so will be discussed later in the context of challenges to that view. in this part i concentrate on how the legal profession interprets and relies on this idea of a commitment to public service. i argue that of all the characteristics outlined above, the idea that membership of the legal profession carries with it a commitment to serve the public, is the most powerful. this is because it can be and is used to justify the privilege of self-regulation and that of monopoly over legal services as well as to exhort individual lawyers to engage in ethical legal practice with a view to 8 johnson (1972) discusses and criticises the models in sociology at the time of his writing in 1970. nelson and trubek (1992) also survey the theories of professionalism. see also, (larson 1977). 9 the origins of both the australian and american legal professions lie in the development of the english legal profession. in england the two branches of the profession developed separately. however, lawyers of either variety, ie attorneys-at-law and serjeants (forerunner of the barrister) appear to have held a monopoly over advocacy and litigation by the end of the 14th century. by the mid 18th century solicitors were organized into a ‘professional’ body able to lobby for further monopoly. see, holdsworth (1903) j.h. baker (1986) (christian 1899). 10 with the exception of medicine. 36 journal of clinical legal education november 2000 public service. it is seen therefore as an integral part of being a lawyer. it contributes to the ideal of the legal profession as a ‘calling’ and one in which the primary purpose is not mere financial reward.11 there are three obvious ways in which the legal profession, through its professional organisations, uses and relies upon this ideal of public service. first, it is relied upon positively to encourage individual lawyers and professional organisations to, for example, commit themselves to increase their pro bono work.12 pro bono work can be either for individual clients or for community groups and in australia at least, is increasing as governments continue to withdraw funds from the public legal aid budgets (regan 1999). lawyers’ involvement in pro bono work is a mark of their special status as professionals with an overriding commitment to the provision of legal services to the community the public interest.13 the commitment to public service (or obligation as it is often referred to) also inspires calls for lawyers to voluntarily contribute their expertise to draft law reform proposals, take part in community consultation or otherwise involve themselves in public activities involving the legal system.14 secondly, this public service ideal is publicised in ways directed at improving the public reputation of lawyers generally.15 so, for example, in my home state of victoria and in most other australian states, the profession organizes a ‘law week’ each year. telephone advice lines are set up through the professional organization, lawyers give free advice at designated public places throughout the week, displays are set up providing information on common legal problems et cetera. in addition, much time and effort is spent in persuading the public of the value of hiring a lawyer when trouble or transaction presents. the overriding message is that lawyers are independent and skilled advisers with a commitment to serving the community(law institute of victoria 1999) (scott 1998). as i discuss later, perceived challenges to that independence impact on the notion of obligations of public service. thirdly, the legal profession uses the public service commitment in what i conceive to be a negative way that is, as a justification for privilege. the legal professional organizations argue that their members adhere to this obligation of public service and use their skills and expertise for the good of the community.16 the argument continues that because lawyers are professionals with expertise and training, the community can rely on them and only them when dealing with the legal system. conversely, the community cannot rely on non-lawyers because they are not professionals and 11 larson (1977) 59 refers to this use of the ‘service ideal’ as the need to gain ‘social credit and autonomy’. see also, kirby (1996), sir daryl dawson in a speech to the 29th australian legal convention october 1995 reported in (1995) 30 australian lawyer 10 and smith (1994). 12 ‘pro bono publico’ interpreted variously as ‘for the public good’ or ‘in the interests of the public’. baillie and bernstein-baker (1994-95) base their argument in favour of the (then) proposed american model rule 6.1 (pro bono) on a view of the legal profession which incorporates an obligation to serve the public. 13 the american bar association reaffirmed this special obligation of lawyers in the report of its commission on multidisciplinary practice august 1999. 14 the journal of the legal professional association in victoria, australia, the law institute journal contains a regular column featuring and discussing the variety of ways in which members of the profession can perform pro bono work. see, eg, (voluntas pro bono secretariat 1998) and (english and burchell 1999). 15 interestingly, the attorney-general of australia is organizing a ‘pro bono’ conference for august 2000 with the express aim of publicly recognizing the pro bono work done by the australian legal profession. 16 this is a recurring theme in the profession’s response to current issues such as multi-disciplinary practices and the extent of reservation of legal work to lawyers. see, eg, (dixon 1999) and (scott 1999). clinical legal education in the 21st century:still educating for service? 37 above all do not have this commitment to the public good that lawyers, as professionals do.17 in this circular way, lawyers have resisted attempts by government to take away some of their privileges of monopoly and self-regulation.18 an obvious question is whether individual lawyers have ever conformed to this service ideal held out by the professional elite.19 in practice many different interests exist within the legal profession and individual lawyers practice in a variety of workplaces with differing experiences.20 in the aftermath of the corporate excesses of the 1980s and in the long working hours of the 1990s, some commentators on the legal profession have looked backwards longingly to a time when this ideal supposedly meant something. kronman in his book the lost lawyer (kronman 1994) bases his critique of current american legal practice on the notion that there was a time not so long ago when lawyers were committed to and were able to carry out this ideal. justice michael kirby of the australian high court (kirby 1996) criticizes the nostalgic approach but still expresses the conviction that lawyers must reassert the essence of their professionalism. the obligation and commitment to practise law in the public service lies he asserts, at the very heart of what it means to be a lawyer. clinical legal education and the legal profession’s notion of professionalism origins of clinical legal education how does clinical legal education relate to this ideal of the legal profession? before answering this question i want to compare briefly its australian and american origins. i hope to show that despite differences, in both countries clinical legal education was founded on a determination to provide legal services to the poor and in so doing to effect change both in the legal system and in legal education. in my view there were two catalysts for the rapid growth of clinical legal education in the united states. the first was the 1969 us supreme court decision in gideon v wainwright21. the decision created a serious question as to how and from where representation would be provided to the new class of criminal defendants now entitled to it under the us constitution. judges, practising attorneys and legal educators saw this as a practical crisis demanding urgent measures to satisfy the 17 competence and ethical conduct are bound up with this argument and with the service ideal. the possession of knowledge and skills and the ethical rules governing lawyers’ conduct contribute to their special place in the community (dickson 1998). the courts have supported this argument eg, cornall v nagle [1995] 2vr 188. 18 for example, during 1995 and 1996, the victorian law institute, the professional organization for solicitors in the australian state of victoria, fought hard using these arguments in an effort to resist the victorian government’s determination to, among others, abolish the self-regulatory status of the profession. (the government was ultimately successful). see also law council of australia policy statements (law council of australia 1998). 19 research carried out in the mid-1970s as part of the commission of inquiry into poverty in australia found a low rate of participation among the survey sample (25%) in pro bono work. see (fitzgerald 1977). chesterman (1995, 5) nevertheless points out the influence of ‘reformist lawyers’ on social and legal change in australia. 20 nelson, trubek and solomon (1992) explore the variety of professional ideologies espoused by lawyers. 21 372 us 335 (1963). the court held that defendants facing criminal prosecution in the states on serious charges where there was a possibility of a substantial prison sentence had a constitutional right to legal representation. 38 journal of clinical legal education november 2000 sudden need for satisfactory criminal advocates. they all turned to the law schools for help in supplying the need.22 courses for credit were created in which students worked in legal aid offices (generally the neighbourhood law offices funded by the office of economic opportunity) under the supervision of a salaried lawyer. the immediate need was seen both by the profession and the judiciary to be provision of legal services to the poor.23 when in 1972 the united states supreme court, in the case of argersinger v hamlin,24 extended the constitutional right of representation to all defendants, whether facing a jury trial or not, the demand for legal services increased again. the early programmes in neighbourhood legal aid offices were the first large-scale ‘clinical’ programmes within legal education and their priority was clearly community service. at the same time, they were seen as filling an educational gap in the american legal education system, by providing an opportunity for students to experience legal practice and to learn some practical skills before being admitted to the bar (pincus 1969). the second catalyst to growth of clinical legal education in america was the attitude of the ford foundation to changes in legal education. in particular william pincus at the ford foundation believed that lawyers had an obligation to be involved in solving some of the pressing social and legal problems of the time. in 1966, while program associate, public affairs program at the ford foundation in new york, pincus wrote of his disquiet in the late 1950s, when reviewing funding applications from legal academics: what was missing from the applications was any tangible evidence of awareness of service of the obligation to convey a professional service, based on many years of learning, to all segments of the american public, including those who might not be able to afford the ordinary price of legal services. (pincus 1966) in 1965 the ford foundation provided funding to the association of american law schools (“aals”) to expand the work of the national council on legal clinics.25 in 1968 the council on legal education for professional responsibility (“clepr”) was set up by the ford foundation as an independent body and funded to the extent of six million dollars. william pincus became its president. the massive funding provided by clepr was directed at introducing clinical legal education into law schools across america and in a way that involved law students in the provision of legal services to the poor.26 in australia, the first clinical legal education programme was established in 1975 at monash university in melbourne. unlike in the united states, there was no constitutional imperative to provide legal services to the poor. nor was there a ford foundation with massive funding for clinical programmes. the early 1970s were, however, a time of social unrest and political turmoil extending to the campuses.27 they were also years when the australian government began to 22 see, eg,: (brown 1965) (cleary 1966) (monaghan 1965) 23 ibid. 24 407 us 25 (1972). 25 this body was funded by the ford foundation and in 1958 auspiced a ‘placement’ programme in which students spent time working with a variety of legal professionals within the justice system. 26 in 1972 the us supreme court endorsed this aim of clinical legal education. in argersinger v hamlin, above n 24, mr justice brennan said that “law students can be expected to make a significant contribution . . . to the representation of the poor in many areas . . .” 27 these were the years of the vietnam moratorium and the protests against the south african rugby team, the springboks. clinical legal education in the 21st century:still educating for service? 39 identify and address poverty through the australian government commission of inquiry into poverty (the “henderson commission”) and in which there were moves to simplify access to the legal system in minor matters.28 free legal services were established by students and radical young legal practitioners to provide advice and representation to people unable to pay for private legal services.(chesterman 1996, 4-5) it was onto these legal services that clinical legal education was grafted. this relationship between clinical legal education and community legal centres (as the free legal services became) and the model of basing a clinical programme in a community legal centre is a distinguishing characteristic of australian clinical legal education (noone 1997). clinical programmes in australia remain firmly entrenched in this model. the connection has been reenforced recently by the commonwealth government in its criteria for receipt of funding in an initiative designed to expand both clinical legal education and the provision of legal services in areas of disadvantage.29 in australia clinical legal education is still firmly linked to poverty law practice. in the united states, my belief is that despite considerable diversity in programmes, in the majority of clinics the educational process is used to provide legal services to poor people.30 i argue therefore, that from its inception, clinical legal education in both countries has depended upon a service ideal. this took the form of a belief that lawyers have an obligation as lawyers to involve themselves in the equal distribution of legal services. clinical legal education and the ideals of the ‘profession’ when clinical programmes are providing legal services to groups of poor or otherwise disadvantaged clients, they are using that form of legal practice to satisfy educational goals. these latter are usually many and varied. one recurring goal, however, at least in the australian situation is a rather general one of guiding students to see a role for themselves as lawyers, that encompasses the obligation to work for access to justice. this is emphasised in the australian situation i think by the connection between clinical legal education and the community legal centre movement discussed earlier. the use of the educational process to provide legal services to the poor is clearly consistent with the service-ideal of a profession discussed earlier. one way of approaching the relationship between clinical legal education and notions of a profession is to see clinical education as imbued with a sense of the public service role of the lawyer. on this view, the chosen client base directly reflects an adherence to the view that lawyers as professionals have an obligation and commitment to public service absent from members of other trades or occupations. 28 the second main report of the henderson commission delivered in october 1975 was entitled law and poverty in australia. the small claims tribunal was established in 1973 for consumers to take action against traders without the need for legal representation; the small claims tribunal act (vic) 1973. 29 commonwealth government selection criteria contained in the call for expressions of interest in funding proposals for four new clinical legal education programmes dated 24 august 1998. 30 i hope this belief is not misplaced. it is based on personal experience, personal and email discussions with american clinical teachers and reading of both current writing and discussion on internet lists. clinical law teachers’ involvement in social justice organisations such as global alliance for justice education and the frequency of conferences and meetings devoted to such issues reinforces this belief. 40 journal of clinical legal education november 2000 the problem i see with acceptance of this traditional vision of a lawyer as a professional is that it is tied to other characteristics of the profession which entrench privilege and injustice such as monopoly over delivery of legal services, self-regulation etc. it seems ironic that clinical legal education should rely on a vision of professionalism that can be seen in this alternative light. the commitment of clinical programmes in australia to access to justice cannot be criticised. however, i suggest that clinical educators there (and probably elsewhere) have not articulated a role for lawyers and the legal profession which challenges the status quo. this failure leaves clinical legal education as ultimately accepting of that status quo. as discussed in the next section, the legal profession is under challenge in australia in such a way that there exists the real possibility that the traditional notion of the profession must give way. clinical educators need to be part of the process of rethinking what it means to be a lawyer and by necessity of rethinking the values of clinical legal education itself. challenges to the legal profession the ability of members of the community to access the legal system has been the subject of regular inquiry in australia during the last twenty years. the late 1980s saw an increasing concern within the broader australian community that the legal system and the legal services necessary to use it were increasingly inaccessible to the ordinary citizen.31 the high cost of legal services was seen to be a major contributor to this inaccessibility. both state and commonwealth governments began to look closely at the regulation and structure of the australian legal profession. at the same time, the lord chancellor’s department in the united kingdom was examining the operation of the english legal profession (lord chancellor’s department (uk) 1989). the question directing these investigations was whether legal services could be provided in a more efficient and effective way by applying the principles of competition policy to the existing methods of operation. that policy could be summarised by the statement that ‘restrictions on how, or by whom, services may be provided are justified only if they result in a net public benefit.’ (law reform commission of victoria 1992, 5) in may 1989 the australian parliament referred to the senate standing committee on legal and constitutional affairs the question of the costs of litigation and legal services (“senate inquiry”). in 1989 the victorian law reform commission began work under a reference to inquire into the costs of litigation. as part of their investigations, both these bodies applied competition principles and questioned the reservation of substantial areas of ‘legal work’ to legal practitioners. in one discussion paper, the senate inquiry raised the option of abolishing all legislation regulating the legal profession and opening up the legal services market to any person who wished to offer themselves to perform legal services (senate standing committee on legal and constitutional affairs 1992). 31 this was not a new concern as evidenced in the establishment of the henderson commission. see above n 28.the 1970s had seen the introduction at both state and commonwealth level of consumer tribunals aimed at providing a cheaper, faster and more accessible dispute resolution process in their specific areas of operation. for example, in victoria, the residential tenancies tribunal operating under the residential tenancies act 1980 (vic) and the small claims tribunal operating under the small claims act 1973 (vic). in 1984 the administrative appeals tribunal act (vic) established the administrative appeals tribunal. clinical legal education in the 21st century:still educating for service? 41 the two inquiries which have had the most significant practical impact on the operation and identity of the legal profession in australia were the trade practices commission study of the professions including the legal profession (“tpc”) (trade practices commission 1994) and the inquiry of the access to justice advisory committee (the “sackville committee”) (access to justice advisory committee 1994). both these inquiries were national in scope and included in their considerations, arguments and questions raised in previous state and federal inquiries. both the tpc and the sackville committee recommended that the legal profession should be subject to the same competition principles as other industries. these principles were encapsulated in the recommendation of the hilmer report that ‘[t]here should be no regulatory restrictions on competition unless clearly demonstrated to be in the public interest.’32 each report examined the traditional reservation of legal work to lawyers, especially conveyancing (real estate transactions) and probate. the only qualification to this broad recommendation was contained in recognition by both inquiries that there was a public interest in the proper administration of justice and the legal system.(access to justice advisory committee 1994,67) (trade practices commission 1994,7) the issue for consideration then was how to balance this public interest against the public interest in competition in legal services. in making submissions to both inquiries, the various legal professional bodies relied on their status as a ‘profession’ and argued that retention of lawyers’ monopoly over primary legal services was a guarantee of integrity and competence in the performance of those services.33 the independence of the profession and its characteristic commitment to public service were, it was argued, critical factors in ensuring the integrity of the legal system. with respect to lawyers’ monopoly over advocacy in the courts, it is possible to infer that both the tpc and the sackville committee accepted these arguments. in any event neither report recommended abolition of it. other areas of legal work did not survive the scrutiny.34 of most importance to the discussion in this paper of the professional ideal of public service and its use by the legal profession to justify privilege, was the examination by both inquiries of the way in which the profession was regulated. the control by the profession of entry to the profession (through the licensing process) and of the discipline of its members in their conduct of legal practice was seen as a significant factor in the cost and availability of legal services. the outcome of the examinations was conclusive that the legal profession was not, but should be seen to be, accountable for its practices.35 in a sense this was another reinterpretation of the professional ideal. if lawyers hold a privileged place in the administration of justice because of their expertise and monopoly of legal work, a privilege which is granted to them by the community (via legislation), then the public must be 32 (independent committee of enquiry into competition policy in australia 1993, policy principle i, 206). the report examined how the principles of competition policy were and could be applied in australia. in february 1994 the council of australian governments adopted the principles that it espoused. 33 see, eg., the queensland law society in its submission: “[legal] practitioners are required to maintain certain professional standards, are accountable and subject to substantial sanctions in respect of breach of those standards.. .” quoted in the tpc report (trade practices commission 1994, 58). 34 in particular, conveyancing (real estate transactions) and probate and a variety of other areas of administrative and welfare practice. 35 accountability emerged as the key issue in government critique of the legal profession. see, eg, (new south wales law reform commission 1993); (access to justice advisory committee 1994, action 7.1, 210); (trade practices commission 1994, 182-184). 42 journal of clinical legal education november 2000 satisfied that the privilege is being exercised in the public interest. external rather than self-regulation was the recommendation.36 this recommendation, now implemented in the state of victoria in new legislation regulating the legal profession37, struck at the very heart of the notion of what it was to be a professional. self-regulation and commitment to public service go hand in hand in the traditional view. the profession asks the community to trust that its members will perform their work competently and ethically and promises that the professional body will sanction any lawyer who fails to reach these standards. the profession says, ‘we lawyers are special, we are not just practising for financial gain, we are serving a higher good and accept an obligation to use our skills for the good of the community. you can trust us.’ for almost a century in australia at least, governments have supported this view. legislation has entrenched the monopoly of the legal profession over the delivery of legal services and the self-regulatory regime.38 now, however, the australian legal profession has been challenged to forge a new identity. the recommendations and principles of the trade practices commission, the hilmer committee and the sackville committee have ensured that the climate in which lawyers practise in australia is not accepting of traditional arguments supporting privilege and monopoly. in the jargon of the time, lawyers are providers of legal services and practise within the legal ‘industry’.39 in victoria, with the second highest number of lawyers in australia, regulation of licensing and discipline has been taken away from the professional body and authority given to independent bodies.40 governments are looking for ever-more cost efficient ways of administering the legal system and continue to examine ways to reduce the role of lawyers in litigation.41 one cannot overestimate the impact of these changes on the self-image of the legal profession and its members. when added to the ever increasing financial pressures on law firms and the impact of globalisation on traditional modes of legal practice the result is a climate of uncertainty and change in the legal profession.42 if lawyers are merely another occupational group with no special characteristics which distinguish them from say, electricians or computer programmers, then must they still have this commitment to public service which has been so integral to their identity? what impact do these changes have on the underlying premises of ethical practice? should these be re-evaluated? these are questions for the legal profession to consider. they are also, however, critical questions for legal educators and clinical legal educators in particular. where does clinical legal education fit into this new scenario? i suggested earlier in this paper that clinical legal education in both australia and the united states is imbued with a sense of the public service role of the lawyer. clinical legal education has always taken this seriously. it is of course arguable that in the wider profession, this ‘ideal’ has been mere 36 ibid 37 legal practice act (vic) 1996 38 the legal practice act (vic) 1996 s.314 continues the virtual monopoly of lawyers over legal practice in victoria. it has, however, attempted to abolish selfregulation by establishing separate and independent bodies to oversee professional conduct and the licensing regime. see parts 15 and 18 of the act. 39 (australian bureau of statistics 1995). 40 see above n.38. 41 the australian law reform commission in its recently completed review of the adversarial system 1996-1998 investigated these and other issues. 42 discussion of the impact of globalisation on traditional modes and structures of legal practice is ongoing in the legal profession and no doubt contributes to the ‘identity crisis’ i describe. there is, however, not room in this article to explore that contribution. clinical legal education in the 21st century:still educating for service? 43 cant, pulled out at convenient moments to justify retention of the overall privileges claimed as a profession.43 in clinic, however, i think we have tried to imbue our students with the belief that they do as lawyers have obligations to serve the public interest. we have done this by encouraging our students to take a critical approach to the legal system, by mounting test cases whenever possible, by introducing students to the values of community development work or (or more usually and) by exploring what it means to be an ‘ethical’ lawyer. if, however, this ‘service-ideal’ disappears from the ideology of the legal profession because the privileges on which it was based have also disappeared, then clinical legal educators have to make some choices about the values underpinning their programmes. can we develop a new vision of lawyers and the legal profession which does not rely on outdated notions of professionalism, tied to restrictive practices and privileges? i think there are three general choices of direction. first, clinical legal education could abandon any suggestion that it has a social or reformist purpose and emphasise its ‘training’ aspects. it could continue to develop as a method of teaching lawyering skills. this approach may or may not require clients but in any case does not require poor clients. it can be seen as a sophisticated method of professional training, with an intellectual base. it can sit comfortably with the concept of a legal industry as a provider of legal services. a second possibility is to redefine clinical legal education as a form of ‘cause lawyering’ (sarat and scheingold 1998) in the legal/social activist model. this suggests that a commitment to the challenging of laws as a moral and political pursuit, be the priority of the clinic whereas traditionally clinic has operated through a more conventional commitment to the individual client’s case. a third possibility is for clinical legal educators to remain committed to a model which primarily provides a legal service to individual clients but which incorporates aspects of ‘cause lawyering’. for example, clinic teachers and students might work with local communities on specific issues, or, drawing from the experience of service to individual clients, challenge systemic discrimination/ human rights breaches etc. attempts at this model already exist in australia in the community development work of some university clinical programmes and in other countries. i hope that the first choice is not taken by clinical educators in australia and other countries. if it is, the programmes should be renamed ‘practical training’ as in my view they would have no connection with what i have described as the original values of clinical legal education. such an approach also appears to abandon the service ideal of professionalism in favour of a technocratic interpretation of the value of lawyers’ work. in either of the other two cases, clinical legal educators must i think articulate a new vision of the role and function of lawyers in society. this new vision should expressly challenge a notion of ‘professionalism’ that appears self-serving and self-interested. it can do this while supporting a special role for lawyers within the justice system, related to their knowledge, skills and ethical conduct. such a role need not depend upon monopoly and should in my view, include a role for lawyers as critics of the legal system and advocates for the disadvantaged. this role would be in keeping with the origins of clinical legal education and also consistent with a professional ideal that values competence and ethical conduct in the service of the public. 43 it is important to distinguish between the professional ideology expounded by the professional elite in public and the ideologies and practices of individual lawyers. for a discussion of the different professional ideologies invoked see (nelson, trubek and solomon 1992). 44 journal of clinical legal education november 2000 conclusion the legal profession in australia and elsewhere is in the midst of constant change. if it is to flourish attention needs to be given not only to issues of commercial best practice but also to the question of identity. as legal educators i believe we 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(1903) a history of english law. london, methuen & co ltd and sweet & maxwell ltd. independent committee of enquiry into competition policy in australia (1993) national competition policy, johnson, e. j. (1973) education versus service:three variations on the theme. clinical education for the law student : legal education in a service setting ,clepr national conference, buck hill falls pennsylvania, clepr. johnson, t. j. (1972) professions and power, london, macmillan. kirby, m. (1996) “billable hours in a noble calling?” alternative law journal 21(6): 257-262. kronman, a. (1994) the lost lawyer, harvard university press. larson, m. s. (1977) the rise of professionalism: a sociological analysis. berkeley, university of california press ltd. law council of australia (1998) policy statement on the reservation of legal work for lawyers, law council of australia. law institute of victoria (1999) “law week 1999”, law institute journal: 25. law reform commission of victoria (1992). access to the law: restrictions on legal practice, melbourne. le brun, m. and r. johnstone (1994) the quiet revolution: improving student learning at law, sydney, lbc. lord chancellor’s department (uk) (1989) the work and organisation of the legal profession cmnd 570. lord woolf (1996), access to justice: final report to the lord chancellor on the civil justice system in england and wales, london. menkel-meadow, c. (1991) “can a law teacher avoid teaching legal ethics?” journal of legal education 41: 3. monaghan, h. p. (1965) “gideon’s army: student soldiers.” boston univ. law rev. 45( no.4,): 445. nelson, r. l. and d. m. trubek (1992) arenas of professionalism: the professional ideologies of lawyers in context. lawyers ideals/lawyers practices: transformation in the american legal profession. r. l. nelson, d. m. trubek and r. l. solomon (eds), cornell university press: 177-214. 46 journal of clinical legal education november 2000 nelson, r. l., d. m. trubek and solomon (eds.) (1992) lawyers’ ideals/lawyers’ practices. ithaca london, cornell university press. new south wales law reform commission (1982). first report on the legal profession, sydney, new south wales law reform commission. new south wales law reform commission (1993) scrutiny of the legal profession:complaints against lawyers, new south wales law reform commission. noone, m. (1997) australian community legal centres the university connection. educating for justice: social values and legal education. j. cooper and l. g. trubek (eds) aldershot, dartmouth publishing company limited: 257-284. pincus, w. (1966) “programs to supplement law offices for the poor.” notre dame law review 41: 887. pincus, w. (1969) educational values in clinical experience for law students, clinical education for law students: essays by william pincus, new york, council on legal education for professional responsibility inc. pincus, w. (1980) clinical education for law students: essays by william pincus. new york, council on legal education for professional responsibility, inc. regan, f. (1999) “legal aid without the state: assessing the rise of pro bono schemes” legal aid in the new millennium, international legal aid conference, vancouver. sackville, r. (1975) law and poverty in australia, commission of inquiry into poverty sarat, a. and s. scheingold, eds. (1998) cause lawyering: political commitments and professional responsibilities. oxford socio-legal studies. oxford, oup. scott, a. (1998) “president’s page: in the public eye”, law institute journal: 3. scott, a. (1999) “president’s page: the year ahead”, law institute journal: 3. senate standing committee on legal and constitutional affairs (1992). cost of legal services and litigation the legal profession: a case for microeconomic reform, parliament of the commonwealth of australia. smith, r. (1994) “president’s page: unity in diversity”, law institute journal. 68: 789. smith, s. (1984) clinical legal education: the case of springvale legal service, on tap, not on top:legal centres in australia 1972-1982. d. neal (ed), melbourne, legal service bulletin cooperative ltd.: 49. trade practices commission (1994) study of the professions legal. voluntas pro bono secretariat (1998) “going publico”, law institute journal: 37. administrative appeals tribunal act (vic) 1984 legal practice act (vic) 1996 residential tenancies act (vic) 1980 small claims act (vic) 1973 argersinger v hamlin 407 us 25 (1972) cornall v nagle [1995] 2vr 188 gideon v wainwright 372 us 335 (1963) 1 editorial dr. lyndsey bengtsson lyndsey2.bengtsson@northumbria.ac.uk in this issue we have contributors from across the world who have considered the role of clinical legal education in respect of a number of crucial areas, including climate change and access to justice. we delve into how clinics are responding with innovative ways of ensuring that students not only understand and are able to deal with these areas, but are also equipped with the necessary skills and knowledge for the world of work. firstly, mary anne noone's oration considers how australian clinical legal education responds to the various innovations and disruptions occurring in the legal area. she explores the innovations which are occurring in the legal sector and the impact of these on access to justice and the use by government of automated tools to make decisions. she goes onto examine what these innovations mean for clinical legal education and legal education in general. in particular, how can clinicians and legal education equip students to take on legal roles in the 21st century? she argues that australian clinical legal education can, and does, provide the skills and knowledge that are required of a legal worker in the 21st century and graduates are prepared for the unpredictable nature of the work. 2 the exploration of the skills and knowledge needed to be a lawyer was the basis of rachel dunn's doctoral research. in this article she shares the ‘how’ and provides an insight into the diamond, an innovative data collection tool that can be used to foster a discussion on what legal practice entails and the skills and knowledge that can be developed in clinic. she illustrates how it can be used as a research method and as a teaching aid, providing us with a practical guide on how diamond ranking can be used and how to approach the analysis of the results. illustrating its diverse uses, she explores a research project located in secure accommodation for young people, measuring the changes in attitudes following a creative intervention. creative interventions are desperately needed at a planetary level and richard owen's article looks at how rebellious lawyering methods can provide a template for clinics to further sustainability objectives. he reflects on what lessons can be learnt from the different international approaches and the extent to which sustainability is embedded in clinics. he considers how clinics can respond to sustainably development legislation; highlighting lessons from wales and that it takes time for sustainability legislation to be embedded across different policy areas. last year over 50 university clinics took part in the global day of action for climate justice in order to consider the role that clinics can play. this year, on 17th november 2020, the theme is the rights of nature and offers the opportunity for clinics across the world to come together to consider this concept. for further information please see the facebook page: 3 https://www.facebook.com/secondstudentlawclinicdayofaction2020 ngozi chinwa ole and onyekachi eni's article examines the opportunities and challenges that the paris agreement 2015 provides the network of university legal aid institutions (nulai) nigeria. it is argued that by establishing climate changefocused law clinics and an adoption of a top-down strategy this would help overcome the problem of low awareness of climate change policies amongst law faculties, including clinicians. those wanting to respond to the challenge to create a new clinic would benefit from the insights in louise crowley's article. although focusing on a different practice area, in exploring the design and assessment approaches adopted in the delivery of a family law clinic module in the university college cork louise brings many critical considerations in to focus. by requiring students to contribute to public knowledge and engagement, the module was designed in order to broaden student learning and empower them to develop a sense of community experience of justice. through an investigation of student reflections and student interviews, the article shows the impact of the clinic in providing an innovative space for students to explore the law in practice and to understand access to justice challenges. also exploring the challenges of change, renáta kálmán guides us through the transformation of the hungarian higher education system and the current situation of their clinical legal education. the types of clinics within hungary are considered and the obstacles that the law faculties and teachers face are highlighted. it is argued https://eur02.safelinks.protection.outlook.com/?url=https%3a%2f%2fwww.facebook.com%2fsecondstudentlawclinicdayofaction2020&data=02%7c01%7clyndsey2.bengtsson%40northumbria.ac.uk%7c1f195f82c356434ad9c308d86f7b3fbd%7ce757cfdd1f354457af8f7c9c6b1437e3%7c0%7c0%7c637381922423957869&sdata=uxe8cj%2bhfvxkrrvqgnpdbcnfkj25zup%2fxyslpvblraw%3d&reserved=0 4 that clinical legal education can greatly contribute to the accomplishment of the educational requirements defined by the new decree of the minister for higher education and universities must introduce new, teaching methods which are more practice orientated. finally, as we continue to face the unprecedented challenge of teaching during the covid-19 outbreak, next month's very timely special issue with guest editors hugh mcfaul and francine ryan will focus upon clinical responses and debate the opportunities, challenges and solutions. 54 journal of clinical legal education november 2000 clinical practice profile it is intended that the journal will provide a channel for communication between those involved and interested in clinical legal education across the world. given the huge diversity of clinical projects, the aim of this section is to provide a descriptive piece concentrating on the development and practice of law clinics in different countries, areas or institutions. the first profile concentrates on clinical education in the uk. it is supplemented by extracts from reports prepared by students participating in the clinical programme at the university of northumbria. we welcome descriptive pieces from other institutions for future editions. learning law by doing law in the uk richard grimes* using hands-on experience as a basis for learning has long been a feature of programmes in higher and further education in the uk. medics, scientists, linguists, mechanics and beauty therapists, to name a few, are exposed to real life situations in which the opportunity exists for theory and practice to be studied and applied. would-be lawyers have traditionally undertaken a period of apprenticeship during which knowledge and skills are honed in the work place. as valuable as learning on the job may be in this context, the effectiveness of such a system may rely more on the attitude of the apprentice’s principal than on the structure and design of the apprenticeship. the use of a clinical methodology, under which students apply the law to real or realistic situations and then analyse what has happened and why, sees the introduction of an overtly reflective component in the study process. this approach has been slow to feature at the so-called ‘academic’ stage.1 even on the postgraduate vocational courses, clinical legal education has yet to form an integrated part of the curriculum. * professor richard grimes, director of pro bono services and clinical education, the college of law, store street, london wc1e 7de 1 there is still a clear divide in the uk between the study of law at undergraduate level and the more overtly vocational programmes and apprenticeships for wouldbe practitioners. (the only exception to this is the fouryear exempting degree at the university of northumbria which integrates the vocational stage of the lpc or bvc with the ‘academic’ stage.) in england, graduates who do not have a first degree in law can take a conversion course leading to the common professional examination (1 year full-time, 2 year part-time). successful candidates can then join the vocational programmes for solicitors or barristers. learning law by doing law in the uk 55 past in the early 1970’s, following the pioneering work of some us law schools, clinics did spring up in universities in the uk. they were driven both by the recognition of the pedagogic value of this approach to study but also by the focus of the law schools concerned on the importance of studying law in its political, social and economic context.2 although these early domestic programmes were often welfare oriented in terms of the substance of their casework, providing a service to meet legal need was not the driving force.3 this stands in contrast to the origins of many of the us law school clinics. in these early years, the clinical movement in the uk did not prosper, certainly not when compared with what happened in the usa. the kent clinic had to close its doors in 1976. the legal practice programme did develop at warwick, but the university there remained very much the exception to the rule. it has taken other law schools in the uk over 20 years to push for and secure clinical programmes. of course gauging progress against the us position is not necessarily comparing like with like. the fact that there is no apprenticeship stage in us makes the case for a hands-on input at law school compelling. the resource base in many american universities is more substantial. given the value of experiential learning in other contexts however, it is perhaps surprising that clinical legal education in the uk has been so slow to emerge into the educational light of day. in the early 1990’s there was a flurry of activity on the clinical front. this was led by what is now the university of northumbria at newcastle (unn) and followed by sheffield hallam university. both of these ‘in-house’ clinical programmes are still flourishing. the unn programme is undertaken by all students for two years on the four year exempting degree and at sheffield hallam the clinic is available as an option on the qualifying degree. kent reopened its clinic and queens university (belfast). the universities of plymouth and central england, also established real client clinics. the inns of court school of law introduced a free representation unit module on the bar vocational course. the clinical legal education organisation (cleo) was formed and two conferences were held (1994 and 1995). research published in 1996 revealed that in the academic year 1994-95, 23% of new universities (former polytechnics and colleges of higher education that were given university status since 1992) offered real client clinics with 5% of old universities doing the same. eight institutions in all were involved. two of these offered a full representation service to clients. three limited their work to advice and assistance only and three focused on tribunal representation (principally small claims in the county court and employment tribunals).4 performance by students in all but one of the clinics was assessed. 2 the university of kent at canterbury ran a real-client clinic from 1974 6 but faced substantial opposition largely from outside the university. it was not until 1994 that the kent law clinic re-emerged. the university of warwick established a clinical programme in 1975. this operated with a real-client base until 1991. warwick still uses a clinical approach but now on simulation basis. 3 for a description of the kent and warwick schemes see: clinical legal education at warwick and the skills movement : was clinic a creature of its time?, avrom sherr, in frontiers of legal scholarship, wilson g (ed), wiley, 1995, chapter 8 and clinical legal education: an analysis of the university of kent model, william rees, the law teacher, 1975 (2), 125 4 for details of the survey and its results see: legal skills and clinical legal education a survey of undergraduate law school practice, richard grimes. joel klaff and colleen smith, the law teacher, 1996 (1), 44 56 journal of clinical legal education november 2000 the same survey revealed that a much larger percentage of institutions offered some form of work based placement to students (56% of new universities and 24% of old). the perceived academic value of the experience is underlined by the fact that 75% of the placements were assessed. clinical education was emerging as a significant, if yet relatively underdeveloped, feature of legal education in the uk. what of the present? present according to recently conducted research, students at 30 (out of 80) law schools in england and wales are involved in pro bono schemes with a further 13 other institutions planning similar projects in the course of the coming academic year. the pro bono focus does not necessarily equate to clinical provision (experience without structured reflection may be valuable but does not meet the definition of clinical legal education that is in current use5) but of these schemes 12 inhouse clinics now exist and a further 9 are planned. sixteen law schools work in partnership with other advice and representation organisations. students are assessed in 9 of the clinics, as part of their programme of study.6 interestingly the research asked lecturing staff what, in their views, were the principal obstacles to establishing clinical legal education programmes. those who did not run clinics thought that set up and running costs would be the principal difficulty. those that did have clinics operating saw the amount of staff time as the major cause for concern. neither group appeared to doubt the value of clinical legal education at the academic or vocational stage. this may represent a significant shift in attitude. the hard fought battles over the pedagogic relevance of clinical education may now be largely a thing of the past. the debate seems to have moved on to resources and funding issues and to ensuring that the maximum benefit is extracted from clinical activity for all relevant stakeholders. current clinical activity in the uk appears to feature a variety of models ranging from advice-only schemes to full representation before courts and tribunals. clinics are to be found in-house and through co-operation with other, community-based, organisations. street law (legal literacy) clinics are also an increasingly popular method of linking clinical work with pro bono activity. the college of law has been designing and piloting advice-only clinics and has plans, which are at an advanced stage, for full representation and street law clinics as an integral feature at all of its branches.7 the inns of court school of law intends to run a comprehensive advice clinic from september 2000. the university of manchester launches its advice clinic in november 2000. clinics are either up and running or planned at liverpool john moores, wolverhampton, birmingham, oxford, westminster, west of england, greenwich, hull, sheffield and guildhall. 5 see hugh brayne, nigel duncan and richard grimes (eds) clinical legal education active learning in your law school, blackstone press, 1998, in particular chapters 1 and 2 6 the research was conducted by sara browne, who is associated with the hampshire law firm daltons. the research was carried out on behalf of the solicitors’ pro bono group (spbg) and as part of a postgraduate programme of study. a report based on the research a survey of pro bono activity by students in law schools in england and wales, spbg, july 2000, is now available from spbg (1 pudding lane, london, ec3r 8ab. 7 the college currently has 4 branches at chester, guildford, london and york, with a 5th branch opening in birmingham in 2001. learning law by doing law in the uk 57 future the most recent research not only suggests that more universities and colleges are engaging in clinical legal education but that many others are considering moving in this direction. by september 2001 60% of the institutions surveyed intend to have pro bono activity operating within the law school. a substantial proportion of these are likely to have a clinical component. if the argument is accepted that students stand to benefit in terms of the advancement of their knowledge and skills, then this is good news from the educational perspective. it may also have implications for clients. even though the rationale of uk clinicians remains firmly rooted in improving the quality of teaching and learning, the value for those in need of free legal advice and assistance is potentially considerable. the future, in terms of access to legal services, may well be affected in part, by law school driven and student supported clinical programmes. the profession, the judiciary and government are also now lending their support to the development of pro bono and clinical services.8 partnerships across the demand and supply sectors will be necessary if clinical legal education is to expand and prosper. many issues remain to be addressed in particular the integration of clinical activity across the wider curriculum and the award of academic credit for student performances in clinics. a conference, organised by cleo, is set to take place on 4th january 2001 at the university of warwick at which many of these issues will be discussed. conference details can be obtained from uk centre for legal education, university of warwick, coventry, england. 8 see the quotations from the (then) lord chief justice, a senior partner of a city law firm, the chair of the law centres’ federation and the permanent secretary at the lord chancellor’s department as cited in peta sweet and richard grimes, educating lawyers in the 21st century pro bono activity and pro active learning , the college of law, 2000 from zero to 60: building belief, capacity and community in street law instructors in one weekend seán arthurs, melinda cooperman, jessica gallagher, freda grealy, john lunney, rob marrs & richard roe[footnoteref:2] [2: seán arthurs was a clinical teaching fellow with the street law clinic at georgetown university law center from 2011-2013 and an adjunct professor with the clinic in 2014. he has presented, written, and trained on learner centered education with diverse audiences in a variety of contexts around the globe. melinda cooperman is an attorney at the children’s law center (clc) in washington, d.c., where she represents children in abuse and neglect cases as a guardian ad litem, and works as a consultant in the field of law related education. prior to joining clc, melinda taught at the street law clinic at georgetown university law center and ran the marshall-brennan constitutional literacy project at american university’s washington college of law. jessica gallagher was the 2014-2016 clinical teaching fellow with the street law clinic at gulc. she earned her j.d. from lewis & clark law school in 2012 and is a member of the north carolina bar. freda grealy is a solicitor and head of the diploma centre at the law society of ireland. she introduced street law to the law society in 2013 and leads a number of their street law programmes. john lunney is a solicitor and course manager at the diploma centre of the law society of ireland and also leads their street law programme. rob marrs is head of education at the law society of scotland and leads on implementation of street law. richard l. roe is professor of law and director of the georgetown street law program; he has taught street law at georgetown since 1980 and has facilitated a form of this training dozens of times at georgetown and around the globe.] abstract street law, where law students or lawyers teach about the law in local school, correctional, and community settings, is the fastest growing and most popular type of experiential legal education in the world—and with good reason. the street law methodology helps make the law more relevant, more accessible, and more understandable to both participants in the program and lawyers and law students delivering the programming. despite street law’s prevalence and popularity, there is scant guidance for how to best introduce and implement a program, little research support explaining why street law works, and even less empirical justification proving that the program works. this paper makes three significant and unique contributions to the emerging field of street law scholarship and research. first, we provide an in-depth explanation of the principles and learner-centered practices that make street law such a powerful tool for legal education. second, we ground these principles and practices in a robust body of research, the first such effort in the field. third, we offer an annotated step-by-step outline of a unique weekend orientation program developed and field-tested by the seminal georgetown street law program and delivered in partnership with the law societies of ireland and scotland. it is our hope that this paper will offer practitioners both a series of best practices to draw upon and a reason to do so. a second paper, that will shortly follow this one, will share and discuss quantitative and qualitative data evidencing the powerful outcomes that this weekend orientation can effect in participants.[footnoteref:3] [3: this paper and the orientation weekends that continue to inspire and train irish and scottish students and lawyers would not be possible without the valuable contributions of numerous dedicated individuals, generations of street law students and fellows, and the committed staff and leadership at the law society of ireland and the law society of scotland. in particular, we would like to acknowledge and appreciate the significant efforts of charisma howell, efrain marimon, lee mcgoldrick, heather mckendrick, sarah medway, lyndsey thomson, and holly wonneberger.] i. introduction street law, where law students or lawyers teach about the law in local school, correctional and community settings, is the fastest growing and most popular type of legal clinic in the world.[footnoteref:4] the reasons behind this growth are myriad. on the one hand, street law is an accessible and low cost model that can be employed in almost any setting, with any population, and on any legal subject. street law does not require law student participants to follow local practice rules and does not threaten the income or livelihoods of local lawyers. in emphasizing legal education that is experiential in nature, the street law model appeals to law schools responding to the legal profession’s demand for lawyers who can contribute quickly and learn on their feet. at the same time, street law helps satisfy the voracious desire of lay people to understand their rights and responsibilities in a world full of increasingly complex and obtuse legal systems. moreover, street law uses people’s inherent interest in the law and research-supported, best practices in civic education to teach high cognitive, expressive, academic, social and other skills that enhance people’s effectiveness in legal matters. and street law satisfies that demand with a unique pedagogical approach that values the student, her voice, and her background. [4: although street law began as a legal clinic at georgetown in 1972, changes in the american bar association’s definition of “legal clinic” led to its transformation into an experiential “practicum” at georgetown starting in fall 2016. the program operation and methodology described here has not changed. in many law schools around the world, it functions as clinical legal education. it is also conducted outside of law schools as an experiential or educational program.] as interest in the street law model has spread across the globe, there is an increased need for street law training that equips law students and new lawyers with the tools they need to successfully introduce and support the street law model in school, correctional, and community settings. these trainings must be meaningful and substantive for the law students, developed in a collaborative way that embeds skills and knowledge in street law practitioners and faculty, and be responsive to the local context where host institutions often face significant time and resource constraints. this paper will describe one training approach that has been repeatedly successful in developing law student instructors who believe in the potential of street law’s unique learner-centered methodology, are capable of designing and executing lessons exemplifying this approach, and who are committed to building and valuing community in their classrooms. over the last four years, past and present staff from the street law program at georgetown university law center, in collaboration with their irish and scottish colleagues, have conducted seven in-person, weekend-long training workshops in dublin with the law society of ireland and in edinburgh with the law society of scotland. although the context and audience differed, the weekend training programs remained essentially identical in both sites. between friday evening’s introductions and sunday afternoon’s demonstration teaching sessions, the street law facilitators help build belief in the street law methodology, instructional capacity in the future street law teachers, and community among the young lawyers and law students who attend the training. our objective in writing this paper is to present and describe our training program in a manner that will enable practitioners around the globe to review our approach, understand why it works, and adopt any potentially helpful aspects. we first introduce readers to street law and the street law methodology. we next explain how the street law methodology and our weekend orientation program is grounded in a robust body of research and exemplifies best practices in teaching and learning at the intersection of civic education, learner-centered education, intensive teacher preparation and community building. we then move from the theory and evidence to the practical with sections that will be of especial value to aspiring practitioners, educators, and interested law societies and legal bodies. we describe the introduction and adoption of street law by the law societies of ireland and scotland and highlight how street law reinforces and furthers the core principles and goals of each law society. we provide practitioners with a step-by-step description of each of the weekend training activities and explain how these activities play out in practice. for each of these activities, we discuss how the activity fits into our broader learning trajectory and reinforces our core goals of building belief, capacity, and community. we close with suggestions for further research, including a preview of our forthcoming companion paper that demonstrates the impact and efficacy of the street law orientation program and positively answers the question “does it work?” this second paper, with a narrower focus on the evaluation of quantitative and qualitative data, is presented separately to allow the reader to first focus on this paper’s presentation of the rationale and implementation components of our training model, to permit a more in-depth discussion of these results in the accompanying paper, and for practical considerations around length and scope. ii. what is street law? during the 1960s and 1970s, as movements for social change and legal equality for women, minorities, and other traditionally marginalized or economically dispossessed populations gained strength and spread across geographic and political borders, law students, professors, and practitioners became increasingly interested in how the law could be used as a tool for effecting social change.[footnoteref:5] one concrete outgrowth of these progressive reform pressures was the birth of the modern legal clinical and experiential learning movement.[footnoteref:6] [5: milstein, e.s. (2001). clinical legal education in the united states: in-house clinics, externships, and simulations. journal of legal education, 51(3), 375-381.] [6: milstein, e.s. (2001). clinical legal education in the united states: in-house clinics, externships, and simulations. journal of legal education, 51(3), 375-381.] legal clinics and experiential courses are law school programs designed to provide law students with the opportunity to apply and connect their classroom learning with real world practice under the close supervision of a law school faculty member.[footnoteref:7] law students gain invaluable hands-on experience working with clients, forming and articulating legal arguments, and problem-solving in complex, real world settings. these programs typically serve populations who might not otherwise have access to the legal system or causes that lack the profile or financial resources to support litigation efforts.[footnoteref:8] today, popular clinical and experiential learning offerings run the gamut from family and consumer law to criminal justice and defense, and from environmental advocacy to education law. although the clinical legal movement first took root in the united states, both the concept and practice of involving law students in experiential learning opportunities has spread rapidly around the globe.[footnoteref:9] [7: wizner, s. (2000). the law school clinic: legal education in the interests of justice. fordham law review, 70, 1929-1937.] [8: wizner, s. (2000). the law school clinic: legal education in the interests of justice. fordham law review, 70, 1929-1937.] [9: wilson, r.j. (2004). training for justice: the global reach of clinical legal education. penn state international law review, 22(3), 421-431.] the street law program that originated at georgetown university law center in 1972 as a “course in practical law”[footnoteref:10] for high school students taught by law students for academic credit[footnoteref:11] has become far more than that today. street law programs now exist at more than 50 law schools in the united states, dozens of international law schools, and in a variety of community and non-profit partnerships.[footnoteref:12] from the outset, street law’s appeal has been derived just as much from its relevant law-related content–“the law useful in people’s daily lives, the legal processes, constitutional principles and values on which these are based”[footnoteref:13]—as from the activity based, participatory teaching methodology it employs. over forty plus years, street law programs have steadily improved this learner-centered, democratic model of teaching and learning and its interactive and experiential methodology to not only teach about the law but also to create an experience of justice in the classroom. [10: newman, j., o’brien, e.l., arbetman, l.p., cameron, l., mcclymont, m., & mcmahon, e. (1977). street law: a course in practical law. st. paul, mn: west publishing company.] [11: roe, r. (2012). law school-high school. in s.e. redfield (ed.), the education pipeline to the professions: programs that work to increase diversity (pp. 135-144). durham, nc: carolina academic press.] [12: robust international street law programs include those in south africa (www.streetlaw.org.za), the czech republic (i.e., http://streetlaw.eu), the united kingdom (i.e., http://www.birmingham.ac.uk/schools/law/life/pro-bono/streetlaw.aspx), hong kong (i.e., https://disabilityrights.law.hku.hk/street-law/), and australia (i.e., www.streetlaw.org.au). additionally, there are myriad examples of local bar associations, community organizations, state-related law organizations, regional global associations, private corporations, and even a dedicated non-profit, street law, inc., providing community legal education around the world on a range of topics under the umbrella term, “street law,” or related terms such as community legal education, justice education, and democracy education. street law, inc. offers one compilation of global programs through their website. street law, inc. (n.d.). program locations. retrieved from http://www.streetlaw.org/en/program_map.] [13: newman, j., o’brien, e.l., arbetman, l.p., cameron, l., mcclymont, m., & mcmahon, e. (1977). street law: a course in practical law. st. paul, mn: west publishing company.] street law introduces learners to the law and legal systems while remaining grounded in the best practices in civic education that research shows help learners develop their cognitive, expressive, academic, and critical thinking abilities through the exploration of a variety of civic and law-related situations. street law programs are characterized by the diversity of teaching and learning methods. specific methods include case studies, role plays, hypotheticals, problems, mock trials, hearings and legislative activities, negotiations, small group discussions, news articles, video clips, guest participants, field trips, projects, and simulations. the wide range of topics includes current events and issues, negotiations and dispute resolution, human rights, criminal law and procedure, family, housing, liability, and many others. over time, street law, regardless of program or country, has become known for its distinctive emphasis on learner-centeredness and corresponding de-emphasis on direct instruction. today, learning with street law at both the law school and community levels is accomplished largely through non-directive instruction that emphasizes the cognitive, expressive, and reflective work of the learners themselves. essentially, the teacher serves not as a lecturer but as the facilitator who guides students through the components of each lesson.[footnoteref:14] the students do the talking and thinking; and they do the primary cognitive expressive work to create substantive meaning and connections to the law and legal theories. using rich, thoughtfully structured lessons, this methodology draws from both the hands-on model of clinical legal education as well as the best practices for effective teaching and learning, as discussed infra. this student-centered approach is well suited both for the new instructors[footnoteref:15] and for the learners they teach,[footnoteref:16] from elementary and high school students[footnoteref:17] to adults. [14: for more on this approach of guided participation, see, e.g., mascolo, m. f. (2009). beyond student-centered and teacher-centered pedagogy: teaching and learning as guided participation. pedagogy and the human sciences, 1(1), 3-27.] [15: roe, r. (2012). law school-high school. in s.e. redfield (ed.), the education pipeline to the professions: programs that work to increase diversity (pp. 135-144). durham, nc: carolina academic press.] [16: american bar association. (2003). essentials of law-related education. chicago, il.] [17: arthurs, s. (2015). street law: creating tomorrow’s citizens today. lewis & clark law review, 19(4), 925-961.] at the same time as the street law programs are providing an important public service for non-lawyers, they are also equipping lawyers with important skills for their legal practice. lawyers and law students are offered the unusual opportunity to hone their lawyering skills in real life settings. the instructors gain substantive legal knowledge in a wide variety of areas by researching the topics and creating and conducting lessons for others. preparation for classes, particularly for dynamic, learner-centered ones, teaches organization, efficiency, clarity of expression, responsiveness, and appreciation for different views, experiences and cultures. classroom exchanges build legal analysis skills and the ability to think on one’s feet.[footnoteref:18] [18: “the methodology that develops deep knowledge is ideally suited for the development of lawyering skills….” in roe, r.l. (2016) valuing student speech revisited, klinika: czasopismo fundacji uniwersyteckich poradni prawnych, numer specjalny, 21-24 at 24.] other benefits correspond with shultz and zedeck’s “lawyering effectiveness factors”.[footnoteref:19] grouped into eight broad categories, these factors are: intellectual and cognitive; research and information gathering; communications; planning and organizing; conflict resolution; client and business relations/entrepreneurship, working with others; and character. in preparing their students for mock trials, law students develop advocacy and research skills, for example. classroom management challenges require detailed attention to planning and organization as well as conflict resolution and client relations. street law audiences are often very diverse and the program draws upon established best practices in civic education to promote increased tolerance, respect, and understanding of others, an appreciation for the importance of democratic debate, and a practical grounding in the complexities of implementing justice and human rights in real world settings. [19: schultz, m.m., & zedeck, s. (2009). predicting lawyer effectiveness: a new assessment for use in law school admission decisions. cels 2009 4th annual conference on empirical legal studies paper.] this article describes the first step in the street law process—how to teach the law students, new lawyers, or trainees to be street law instructors,[footnoteref:20] with particular reference to the weekend workshop series conducted for the recently qualified lawyers and lawyers-in-training in the law societies of ireland and scotland in 2013, 2014 and 2015. although we recognize that one of the most powerful qualities of an effective street law session is that everyone—including the teachers or facilitators—is learning and that the street law methodology can be applied in multiple different settings, including in different legal settings, this can lead to some confusion in terms. thus, for the purpose of this paper we will refer to the experienced street law faculty/trainers from georgetown and the host sites as facilitators. the facilitators are the ones who design and lead the weekend training sessions. we will refer to the main audience of this weekend training, whether lawyers, law students, or community leaders as trainees. these trainees are the people who will be going into the schools or communities to lead interactive lessons. we will refer to the ultimate consumers of these street law lessons, typically secondary school students or community members seeking to know more about the law, as students.[footnoteref:21] [20: the street law program model in law schools involves a combination of training in the methodology and content of the course as well as highly supportive supervision of the law student instructors. these instructors typically receive academic credit, attend a multi-day orientation and weekly seminars, are given regular, supportive supervision through observations, feedback and consultations with faculty, engage in reflection through journals, lesson planning analysis, and portfolio assessment, and receive substantial administrative support for their placements in the school, corrections and community settings.] [21: in ireland, the trainees are at the start of their professional practice course i (ppci) at the law society and for most of them this is the beginning of their 2 year traineeship. the students are in their fourth year of secondary school, which is referred to as transition year (ty). in scotland, the trainees are generally undergraduate llb students (although occasionally are postgraduate students undertaking the vocational diploma in professional legal practice). the students are pupils in secondary school typically aged between 14 years old and 16 years old. a full explanation of the routes to qualification as a solicitor in both jurisdictions can be found in section 7 of the fair access to the legal profession report. marrs, r., & meighan, d. (2014). fair access to the legal profession. the law society of scotland. retrieved from https://www.lawscot.org.uk/media/295065/fair-access-for-publication-300114.pdf.] the street law orientation program, first designed and implemented at georgetown and then developed into an international module, was designed to meet a number of goals and challenges: 1) meeting the learning needs, abilities, and interests of a diverse and wide range of learners, from high to low levels of literacy and socialization to school and diverse life experiences; 2) creating a learning and teaching trajectory where students and trainees experience and build upon success; 3) developing both knowledge and skills, particularly cognitive and expressive skills; 4) developing respectful, democratic discourse essential for participatory learning, i.e., agreeing to disagree, and learning about self-government and self-regulation; and 5) expeditiously transforming typically novice trainees having little experience in this methodology[footnoteref:22] into learner-centered teachers who can adapt and execute street law lessons informed by their own cultural context and student population. [22: law student instructors rarely have teaching experience or learner-centered learning experience. rather, they generally have histories of exposure to conventional education and most recently to legal education.] at the most fundamental level, the orientation program seeks to instill in law student instructors belief in the learner-centered methodology, capacity to design and implement street law lessons, and confidence in the power of community. with the three goals of building belief, capacity and community as overarching aims, the training has evolved[footnoteref:23] to meet at least six objectives. the training aspires to: [23: georgetown street law orientations from the outset have included components of the objectives listed below, initially delivered through a combination of direct instruction and examples. while the orientations for the sl hs clinic over the years expanded to five days, to meet the demands of teaching a regular high school course for two semesters, the orientations for the less formal sl corrections clinic remained at 2 days. hence, when the gulc sl clinic was invited to conduct international trainings for law schools in 2000 (the czech republic) and subsequently (in istanbul in 2004), the trainings followed a two-day model. this model has largely been employed through the present, with significant and important modification and adaptations, in many other trainings and by other combinations of trainers around the globe.] 1) set out a lesson trajectory from introductory to complex across cognitive, analytical and expressive domains,[footnoteref:24] [24: to convey in an experiential way the trajectory of a semester’s or year’s learning activities and the principles behind them. e.g., cognitive, from familiar to new, simple to complex, straightforward to nuanced, concrete to relative; analytical, from knowledge and opinions to well-reasoned; expressive, from spontaneous to practiced and performed, informal to formal, from terms to sentences to paragraphs to theses.] 2) be conducted consistently with learner-centered principles,[footnoteref:25] [25: i.e., the delivery of the workshops should itself be largely learner-centered.] 3) be immediately useful to the trainees[footnoteref:26] [26: i.e., to provide resources in the form of concrete lessons and methods that can be utilized immediately by the instructors in their first 2 weeks of teaching and also as examples across the entire teaching period. these should also include topics like lesson planning, assessment, specific techniques, classroom management, and administration.] 4) encourage trainee autonomy, creativity, empathy, imagination and reflection; 5) promote principles of justice,[footnoteref:27] and [27: i.e., don’t merely talk about justice, but teach in accordance with justice. this means valuing students, attempting to see their points of view and understand the nature of their experiences, treating them fairly, and encouraging and supporting them and their ideas. bettelheim, b. (1987). a good enough parent: a book on child-rearing (pp. 135-144). new york, n.y.: knopf doubleday publishing group.] 6) demonstrate street law’s value for the trainees’ professional development.[footnoteref:28] [28: the street law program makes valuable contributions to law students’ legal education and professional development. see, e.g., schultz, m.m., & zedeck, s. (2011). predicting lawyer effectiveness: broadening the basis for law school admission decisions. law & social inquiry, 36(3), 620-661.] iii. literature review: best practices in civic education and building belief, capacity, and community the street law orientation weekend is a unique form of civic education and teacher training. over the course of one weekend, from friday night through to sunday afternoon, the facilitators and trainees will work together to develop a disparate group of forty individuals with some legal knowledge but little or no teaching experience into a confident and empowered community of novice teachers excited and capable of delivering interactive and engaging street law lessons to classrooms of secondary school students. trainees exit the weekend believing in the potential of learner-centered education, capable of delivering learner-centered lessons, and part of a unique teaching and learning community. the street law orientation weekend accomplishes this by drawing on best practices and proven research in the fields of civic education, learner-centered education, teacher preparation, and community building. we review these practices and the supporting research, and then discuss how they manifest in the street law orientation weekend in the section that follows. a) civic education at its core, street law is a type of civic education. the goal of the street law orientation weekend is to educate and empower the trainees so that they can later educate and empower their secondary school students around their legal rights, responsibilities, and options. and though street law is distinct in approach and process from typical civic education programs, the street law model is grounded in the best practices of civic education and seeks to promote many of the same outcomes. effective civic education provides a host of pro-social outcomes at the individual, community, and societal level.[footnoteref:29] students become better thinkers, writers, and speakers.[footnoteref:30] they practice and acquire invaluable communication, collaboration, and leadership skills.[footnoteref:31] students develop a sense of self-efficacy and ability to effect change that translates into both how they see themselves as members of a society and their ability to improve that society.[footnoteref:32] quality civic education helps students become more tolerant, more involved, and better able to resolve conflict.[footnoteref:33] students learn to understand and appreciate their own interests while also considering the interests and perspectives of those with different mindsets.[footnoteref:34] students are less likely to be truant, more likely to graduate from secondary school, and show a marked increase in educational aspirations and motivation.[footnoteref:35] [29: niemi, r.g., & junn, j. (1998). civic education: what makes students learn. new haven: yale university press; campbell, d.e. (2008). voice in the classroom: how an open classroom climate fosters political engagement among adolescents. political behavior, 30(4), 437-454. https://davidecampbell.files.wordpress.com/2015/08/7-voice.pdf; annenberg public policy center. (2011). guardian of democracy: the civic mission of schools. retrieved from http://civicmission.s3.amazonaws.com/118/f0/5/171/1/guardian-of-democracy-report.pdf; kahne, j.e., & sporte, s.e. (2008). developing citizens: the impact of civic learning opportunities on students’ commitment to civic participation. american educational research journal, 45(3), 738-766. http://www.civicsurvey.org/sites/default/files/publications/developing%20citizens_web_version.pdf; cohen, a.k., & chaffee, b. w. (2013). the relationship between adolescents’ civic knowledge, civic attitude, and civic behavior and their self-reported future likelihood of voting. education, citizenship and social justice, 8(1), 43-57. doi:10.1177/1746197912456339; andolina, m. w., jenkins, k., zukin, c., & keeter, s. (2003). habits from home, lessons from school: influences on youth civic engagement. political science and politics, 36(02), 275-280. http://dx.doi.org/10.1017/s104909650300221x; torney-purta, j. (2002). the school’s role in developing civic engagement: a study of adolescents in twenty-eight countries. applied developmental science, 6(4), 203-212. doi:10.1207/s1532480xads0604_7; richardson, w.k., & torney-purta, j. (2008). connections between concepts of democracy, citizen engagement, and schooling for 14-year-olds across six countries. in b.c. rubin & j.m. giarelli (eds.), civic education for diverse citizens in global times: rethinking theory and practice (79-104). new york: lawrence erlbaum; verba, s., schlozman, k.l., & brady, h.e. (1995). voice and equality: civic voluntarism in american politics. cambridge: harvard university press.] [30: hess, d. (2009). controversy in the classroom: the democratic power of discussion. new york: routledge; andolina, m. w., jenkins, k., zukin, c., & keeter, s. (2003). habits from home, lessons from school: influences on youth civic engagement. political science and politics, 36(02), 275-280. http://dx.doi.org/10.1017/s104909650300221x; niemi, r.g., & junn, j. (1998). civic education: what makes students learn. new haven: yale university press; mcintosh, h., berman, s., & youniss, j. (2010). a five-year evaluation of a comprehensive high school civic engagement initiative. circle working paper# 70. center for information and research on civic learning and engagement (circle). retrieved from http://civicyouth.org/popups/workingpapers/wp_70_mcintosh_berman_youniss.pdf; avery, p.g., levy, s.a., & simmons, a.m. (2013). deliberating controversial public issues as part of civic education. the social studies, 104(3), 105-114. http://dx.doi.org/10.1080/00377996.2012.691571; mcdevitt, m., & kiousis, s. (2006). deliberative learning: an evaluative approach to interactive civic education. communication education, 55(3), 247-264. http://dx.doi.org/10.1080/03634520600748557] [31: mcintosh, h., berman, s., & youniss, j. (2010). a five-year evaluation of a comprehensive high school civic engagement initiative. circle working paper# 70. center for information and research on civic learning and engagement (circle). retrieved from http://civicyouth.org/popups/workingpapers/wp_70_mcintosh_berman_youniss.pdf; johnson, d.w. & johnson, r.t. (2007). creative controversy: intellectual challenge in the classroom (4th ed.). edina, mn: interaction book company; johnson, d.w. & johnson, r.t. (2005). democratic decision making, political discourse and constructive controversy. the cooperative link, 20(1). 3; annenberg public policy center. (2011). guardian of democracy: the civic mission of schools. retrieved from http://civicmission.s3.amazonaws.com/118/f0/5/171/1/guardian-of-democracy-report.pdf.] [32: mcintosh, h., berman, s., & youniss, j. (2010). a five-year evaluation of a comprehensive high school civic engagement initiative. circle working paper# 70. center for information and research on civic learning and engagement (circle). retrieved from http://civicyouth.org/popups/workingpapers/wp_70_mcintosh_berman_youniss.pdf; feldman, l., pasek, j., romer, d., & jamieson, k.h. (2007). identifying best practices in civic education: lessons from the student voices program. american journal of education, 114(1), 75-100. http://dx.doi.org/10.1086/520692; sidhu, d.s. (2013). civic education as an instrument of social mobility. denver university law review, 90(4), 977-1002. retrieved from http://www.law.du.edu/documents/denver-university-law-review/v90-4_issue4_sidhu_final_todarby_092213.pdf; chetty, r., hendren, n., kline, p. & saez, e. (2014). where is the land of opportunity? the geography of intergenerational mobility in the united states. retrieved from http://www.equality-of-opportunity.org/images/mobility_geo.pdf] [33: carpini, m. x. d., & keeter, s. (1997). what americans know about politics and why it matters. new haven, ct: yale university press; nie, n. h., junn, j., & stehlik-barry, k. (1996). education and democratic citizenship in america. chicago, il: the university of chicago press; avery, p. g., levy, s. a., & simmons, a. m. (2013). deliberating controversial public issues as part of civic education 1. the social studies, 104(3), 105-114; mcdevitt, m., & kiousis, s. (2006). deliberative learning: an evaluative approach to interactive civic education. communication education, 55(3), 247-264; flanagan, c., stoppa, t., syvertsen, a.k., & stout, m. (2010). schools and social trust. in l. sherrod, j. torney-purta, & c. flanagan (eds.), handbook of research on civic engagement in youth (307-330). hoboken, nj: john wiley & sons, inc.; barr, d. (2010). continuing a tradition of research on the foundations of democratic education: the national professional development and evaluation project. facing history and ourselves. brookline, ma: facing history and ourselves. retrieved from https://www.facinghistory.org/sites/default/files/continuing_a_tradition_v93010_0.pdf; popkin, s.l., & dimock, m.a. (2000). knowledge, trust, and international reasoning. in a. lupia & m.d. mccubbins (eds.) elements of reason: cognition, choice, and the bounds of rationality (214-238). cambridge, ma: cambridge university press; annenberg public policy center. (2011). guardian of democracy: the civic mission of schools. retrieved from http://civicmission.s3.amazonaws.com/118/f0/5/171/1/guardian-of-democracy-report.pdf] [34: carpini, m. x. d., & keeter, s. (1997). what americans know about politics and why it matters. new haven, ct: yale university press; hess, d. (2009). controversy in the classroom: the democratic power of discussion. new york, ny: routledge; avery, p. g., levy, s. a., & simmons, a. m. (2013). deliberating controversial public issues as part of civic education 1. the social studies, 104(3), 105-114; galston, w. a. (2007). civic knowledge, civic education, and civic engagement: a summary of recent research. international journal of public administration, 30(6-7), 623-642.] [35: annenberg public policy center. (2011). guardian of democracy: the civic mission of schools. retrieved from http://civicmission.s3.amazonaws.com/118/f0/5/171/1/guardian-of-democracy-report.pdf; cohen, j., mccabe, l., michelli, n. m., & pickeral, t. (2009). school climate: research, policy, practice, and teacher education. teachers college record, 111(1), 180-213; starks, c. f. (2010). connecting civic education to civil right and responsibility: a strategy for reducing high school dropout among african american students (doctoral dissertation). retrieved from http://csus-dspace.calstate.edu/bitstream/handle/10211.9/512/starks%20thesis.pdf?sequence=1; sidhu, d.s. (2013). civic education as an instrument of social mobility. denver university law review, 90(4), 977-1002. retrieved from http://www.law.du.edu/documents/denver-university-law-review/v90-4_issue4_sidhu_final_todarby_092213.pdf; chetty, r., hendren, n., kline, p. & saez, e. (2014). where is the land of opportunity? the geography of intergenerational mobility in the united states. retrieved from http://www.equality-of-opportunity.org/images/mobility_geo.pdf; chan, w. y., ou, s., & reynolds, a. (2014). adolescent civic engagement and adult outcomes: an examination among urban racial minorities. journal of youth and adolescence 43, 1829-1843; dávila, a., & mora, m. t. (2007). civic engagement and high school academic progress: an analysis using nels data, [part i of an assessment of civic engagement and high school academic progress]. circle working paper# 52. center for information and research on civic learning and engagement (circle). retrieved from http://citeseerx.ist.psu.edu/viewdoc/download;jsessionid=c67b8b374ce539217d8caa08dbfabe6b?doi=10.1.1.188.9260&rep=rep1&type=pdf] unfortunately, the majority of civic education efforts do not realize the promise of these outcomes as civic education is too often synonymous with textbook-based learning and rote memorization.[footnoteref:36] the pedagogy and methods modeled and taught during the street law orientation weekend offer an engaging and vibrant alternative that draws upon the best practices in civic education to provide students with a meaningful, interactive, and memorable learning experience. every activity is discussion-based, team-oriented, and occurs in an open classroom climate. trainees engage in multiple different democratic simulations and practice their civic skills over the course of the weekend. additionally, following the orientation weekend, the majority of the trainees will go on to teach in educational settings where high-quality civic instruction is most likely to have the greatest impact. [36: kahne, j., chi, b., & middaugh, e. (2006). building social capital for civic and political engagement: the potential of high-school civics courses. canadian journal of education, 29 (2), 387-409; torney-purta, j. (2002). the school’s role in developing civic engagement: a study of adolescents in twenty-eight countries. applied developmental science, 6 (4), 203-212; larson, r., & hansen, d. (2005). the development of strategic thinking: learning to impact human systems in a youth activism program. human development, 48, 327-349; baldi, s., perie, m., skidmore, d., greenberg, e., & hahn, c. (2001). what democracy means to ninth graders: u.s. results from the international iea civic education study. national center for education statistics. washington, d.c.: u.s. department of education; saavedra, a.r. (2012). dry to dynamic civic education curricula. in d. campbell, m. levinson, & f. hess (eds.), making civics count: citizenship education for a new generation (135-159). cambridge, ma: harvard education press; jamieson, k. h. (2013). the challenges facing civic education in the 21st century. daedalus, 142(2), 65-83.] a strong body of research supports the use of discussion-based activities as one of the most potent strategies for promoting student learning and, in particular, the effectiveness of classroom discussion in developing students’ higher order thinking and reasoning skills.[footnoteref:37] discussion and democratic interchange are core practices of the street law approach generally and a defining characteristic of the orientation weekend in particular. street law’s heavy reliance on discussion is an intentional, evidence-based approach to teaching and learning that is central to the trainee experience and the development of the three themes of belief, capacity, and community. as such, a brief review of discussion-based outcomes is warranted. brookfield and preskill’s helpful enumeration of the 15 benefits of discussion provides an accessible overview of the skills and capacities that research shows students acquire through discussion: [37: brookfield, s.d. & preskill, s. (2005). discussion as a way of teaching. san francisco, ca: jossey-bass; larson, b. e. (2000). classroom discussion: a method of instruction and a curriculum outcome. teaching and teacher education, 16(5), 661-677; andolina, m. w., jenkins, k., zukin, c., & keeter, s. (2003). habits from home, lessons from school: influences on youth civic engagement. political science and politics, 36(02), 275-280; mcintosh, h. & muñoz, m. (2009). predicting civic engagement in urban high school students 4–5, 9 circle working paper# 69. center for information and research on civic learning and engagement (circle).] 1) [discussion] helps students explore a diversity of perspectives. 2) it increases students’ awareness of and tolerance for ambiguity or complexity. 3) it helps students recognize and investigate their assumptions. 4) it encourages attentive, respectful listening. 5) it develops new appreciation for continuing differences. 6) it increases intellectual agility. 7) it helps students become connected to a topic. 8) it shows respect for students’ voices and experiences. 9) it helps students learn the processes and habits of democratic discourse. 10) it affirms students as co-creators of knowledge. 11) it develops the capacity for the clear communication of ideas and meaning. 12) it develops habits of collaborative learning. 13) it increases breadth and makes students more empathetic. 14) it helps students develop skills of synthesis and integration. 15) it leads to transformation. (pp. 21-22).[footnoteref:38] [38: brookfield, s.d. & preskill, s. (2005). discussion as a way of teaching. san francisco, ca: jossey-bass.] the importance of classroom discussions in civic education courses is especially pronounced because the set of skills and capacities students develop through discussion are the same skills and capacities required of active, informed, and educated citizens who can understand, think critically, communicate, and achieve consensus on civic issues. in addition to the development of students’ higher order thinking, communication, and reasoning skills, there is a predictive connection between classroom discussions of controversial issues and the development of the skills and capacities students need to be effective citizens. this is why classroom discussion is one of the six proven practices of effective civic education.[footnoteref:39] [39: annenberg public policy center. (2011). guardian of democracy: the civic mission of schools. retrieved from http://civicmission.s3.amazonaws.com/118/f0/5/171/1/guardian-of-democracy-report.pdf; rubin, b. (2007). “there’s still not justice”: youth civic identity development amid distinct school and community contexts. teachers college record, 109 (2), 449-481; kahne, j. & westheimer, j. (2006). the limits of political efficacy: educating citizens for a democratic society. ps: political science & politics, 39(2), 289-296; guilfoile, l. & delander, b. (2014). guidebook: six proven practices for effective civic learning. retrieved from: http://www.ecs.org/clearinghouse/01/10/48/] of course, as with any teaching practice, classroom discussions must be intentionally structured and implemented to realize these positive student outcomes and longer term pro-social behaviors.[footnoteref:40] an open classroom climate, where all students feel comfortable expressing and sharing their views on controversial issues, adopting different viewpoints, probing the reasoning and evidence supporting opposing views, and respectfully disagreeing with each other and with the teacher is a critical requirement of authentic and meaningful discussions.[footnoteref:41] discussions that occur in an open classroom climate are empowering, inclusive, and powerful drivers of collective and individual learning.[footnoteref:42] [40: soter, a. o., wilkinson, i. a., murphy, p. k., rudge, l., reninger, k., & edwards, m. (2008). what the discourse tells us: talk and indicators of high-level comprehension. international journal of educational research, 47(6), 372-391; hess, d. (2009). controversy in the classroom: the democratic power of discussion. new york: routledge. ] [41: campbell, d. (2008). voice in the classroom: how an open classroom climate fosters political engagement among adolescents, political behavior, 30 (4), 437-454; soter, a. o., wilkinson, i. a., murphy, p. k., rudge, l., reninger, k., & edwards, m. (2008). what the discourse tells us: talk and indicators of high-level comprehension. international journal of educational research, 47(6), 372-391; saavedra, a.r. (2012). dry to dynamic civic education curricula. in d. campbell, m. levinson, & f. hess (eds.), making civics count: citizenship education for a new generation (135-159). massachusetts: harvard education press; torney-purta, j. (2002). the school’s role in developing civic engagement: a study of adolescents in twenty-eight countries. applied developmental science, 6 (4), 203-212; nystrand, m. (2006). research on the role of classroom discourse as it affects reading comprehension. research in the teaching of english, 392-412; kahne, j. & middaugh, e. (2008). high quality civic education: what is it and who gets it? social education, 72(1), 34-39; hess, d. (2002). how students experience and learn from the discussion of controversial public issues in secondary social studies. journal of curriculum and supervision 17(4), 283-314. ] [42: levinson, m. (2012). no citizen left behind. cambridge, ma: harvard university press; saavedra, a.r. (2012). dry to dynamic civic education curricula. in d. campbell, m. levinson, & f. hess (eds.), making civics count: citizenship education for a new generation (135-159). massachusetts: harvard education press; annenberg public policy center. (2011). guardian of democracy: the civic mission of schools. retrieved from http://civicmission.s3.amazonaws.com/118/f0/5/171/1/guardian-of-democracy-report.pdf; cohen, j., mccabe, l., michelli, n. m., & pickeral, t. (2009). school climate: research, policy, practice, and teacher education. teachers college record, 111(1), 180-213] structured discussions that occur in an open classroom climate are hallmarks of the street law orientation. as set forth in more detail below, from the opening ‘who gets the heart?’ activity through to ‘aliens,’ ‘should it be a crime?’ and the innocence project lessons, trainees work in small groups to deliberate and discuss the merits of multiple different possible courses of action. trainees are provided with interesting opening hypotheticals and a concrete question that needs resolution but that has many possible answers (selecting the one individual who will receive the one heart available for transplant, for example). trainees are given blocks of time to reach a group decision and then are prompted to adopt different positions or role play in order to consider and evaluate possible answers from multiple different perspectives. facilitators actively solicit trainee opinions to begin discussions, ask open-ended questions, and model question uptake strategies as trainees are asked by both their peers and the facilitators to explain the reasoning and evidence in support of their claims. over the course of the weekend, trainees will rotate through several different groups and reporting out responsibilities are randomly assigned. as the orientation weekend progresses, trainees become more comfortable with the discussion and deliberation expectations, as evidenced both by more efficient processes of reaching consensus and an increase in the sharing of minority viewpoints. a second best practice in civic education woven into the street law orientation centers on the use of democratic simulations and experiential learning such as group decision-making activities, mock trials, and criminal investigations.[footnoteref:43] a robust body of research connects the potency of these classroom or school-based activities with improved student learning outcomes and both immediate and long-term participation in civic life.[footnoteref:44] in practicing the skills and behaviors that individuals need to be engaged, informed, and active citizens, trainees are learning the skills and behaviors of citizenship. this occurs at multiple levels during the orientation. first, the trainees engage in multiple different rounds of group discussion and interaction. trainees are practicing their discussion and deliberation skills, engaging in negotiations and consensus building, and considering different viewpoints, perspectives and arguments. [43: annenberg public policy center. (2011). guardian of democracy: the civic mission of schools. retrieved from http://civicmission.s3.amazonaws.com/118/f0/5/171/1/guardian-of-democracy-report.pdf; saavedra, a.r. (2012). dry to dynamic civic education curricula. in d. campbell, m. levinson, & f. hess (eds.), making civics count: citizenship education for a new generation (135-159). massachusetts: harvard education press; levinson, m. (2012). no citizen left behind. cambridge, ma: harvard university press. ] [44: annenberg public policy center. (2011). guardian of democracy: the civic mission of schools. retrieved from http://civicmission.s3.amazonaws.com/118/f0/5/171/1/guardian-of-democracy-report.pdf; levinson, m. (2012). no citizen left behind. cambridge, ma: harvard university press; saavedra, a.r. (2012). dry to dynamic civic education curricula. in d. campbell, m. levinson, & f. hess (eds.), making civics count: citizenship education for a new generation (135-159). massachusetts: harvard education press; larson, b. e. (2000). classroom discussion: a method of instruction and a curriculum outcome. teaching and teacher education, 16(5), 661-677; feldman, l., pasek, j., romer, d., & jamieson, k. h. (2007). identifying best practices in civic education: lessons from the student voices program. american journal of education, 114(1), 75-100; torney-purta, j. (2002). the school’s role in developing civic engagement: a study of adolescents in twenty-eight countries. applied developmental science, 6 (4), 203-212; kahne, j., chi, b., & middaugh, e. (2006). building social capital for civic and political engagement: the potential of high-school civics courses. canadian journal of education, 29 (2), 387-409.] second, trainees participate in a simulated criminal investigation during the saturday afternoon innocence project lessons. in those sessions, trainees assume different roles as police investigators, members of the media, and members of a jury as they work to evaluate and review reproductions of actual evidence and information used during two different murder investigations. trainees work in groups to decide whether criminal charges should be brought against a murder suspect and how that decision should be communicated to the public. trainees learn about criminal law standards, criminal law processes and procedures, and the relationship between investigations, the public, and the court system. trainees are then able to compare their own group decisions to the ones made during the actual investigation and consider whether, and to what extent, reforms may be necessary in the criminal justice system. finally, on sunday morning, trainees will engage in a trial simulation and will adopt the roles of judges, prosecutors, and defense attorneys as they work in small groups to try a case. this mock trial experience provides an experiential introduction to the legal system as trainees formulate and deliver legal arguments, probe and interrogate the strengths and weaknesses of their assigned positions, and learn about how the importance of integrating evidence and legal reasoning into a cohesive narrative. the mock trial introducs students to the democratic process for conflict resolution through the court system and the different roles played by the variety of actors within this system. as with every street law activity, there is no pre-determined correct answer and the ultimate resolution of the hypothetical depends entirely on how the trainees understand, frame, and present their arguments. in addition to the best practices employed during the street law orientation weekend, the work of the trainees after the weekend is intentionally focused on making a difference in schools and with students most in need of effective civic education and most likely to benefit from effective civic education. research shows that students in low socioeconomic schools are much less likely to receive effective civic education instruction and practice.[footnoteref:45] providing effective civic education in these schools is a high leverage opportunity and the best use of limited resources as research also demonstrates that the positive effects of civic education in promoting student gains in civic knowledge, skills, and dispositions is relatively greater in these schools than in better-resourced schools.[footnoteref:46] in both ireland and scotland, the majority of trainees will go on to teach in low socioeconomic schools, thus maximizing the potential effect the street law program will have in each setting.[footnoteref:47] [45: levinson, m. (2012). no citizen left behind. cambridge, ma: harvard university press; jamieson, k. h. (2013). the challenges facing civic education in the 21st century. daedalus, 142(2), 65-83; center for information & research on civic learning and engagement (circle). (2013). all together now: collaboration and innovation for youth engagement: the report of the commission on youth voting and civic knowledge. medford, ma: center for information & research on civic learning and engagement. retrieved from http://civicyouth.org/wp-content/uploads/2013/09/circle-youthvoting-individualpages.pdf; galston, w. a. (2007). civic knowledge, civic education, and civic engagement: a summary of recent research. international journal of public administration, 30(6-7), 623-642; kahne, j., & middaugh, e. (2008). democracy for some: the civic opportunity gap in high school. circle working paper 59. center for information and research on civic learning and engagement (circle).] [46: mcintosh, h., berman, s., & youniss, j. (2010). a five-year evaluation of a comprehensive high school civic engagement initiative. circle working paper# 70. center for information and research on civic learning and engagement (circle); atkins, r., & hart, d. (2003). neighborhoods, adults, and the development of civic identity in urban youth. applied developmental science, 7(3), 156-164.; balsano, a. b. (2005). youth civic engagement in the united states: understanding and addressing the impact of social impediments on positive youth and community development. applied developmental science, 9(4), 188-201; rogers, j., mediratta, k., & shah, s. (2012). building power, learning democracy youth organizing as a site of civic development. review of research in education, 36(1), 43-66; flanagan, c., & levine, p. (2010). civic engagement and the transition to adulthood. the future of children, 20(1), 159-179.] [47: in ireland, the law society of ireland places street law trainees in fourteen different schools. thirteen of these fourteen schools were categorized as delivering equality of opportunity (deis) schools, a designation assigned to educationally disadvantaged schools in ireland. for more on the deis designation, see: http://www.education.ie/en/schools-colleges/services/deis-delivering-equality-of-opportunity-in-schools-/. in scotland, the law society of scotland places street law trainees in xx schools. yy of these xx schools are identified under the scottish index of multiple derivation (simd) as simd20 or simd40 schools, meaning that these schools are in the bottom two quintiles of schools as measured by the simd resource tool. for more on the simd designation, see: http://www.gov.scot/topics/statistics/simd.] b) building belief: learner-centered education developing trainees’ belief in the power and potency of learner-centered education is one of the three key goals of the street law orientation weekend. learner-centered education rests on the premise that students need to be actively involved in their own learning and that students construct knowledge, develop deeper conceptual understanding, and are better able to transfer their learning to new situations when they are authentically involved in the learning process.[footnoteref:48] learner-centered education is often contrasted with the more traditional top-down, teacher-centered approach known as instructionism that views students as empty vessels to be filled and teachers as the imparters and transmitters of everything students need to know.[footnoteref:49] with learner-centered education, students’ prior knowledge is valued and the teacher’s role is to help students build bridges between their current understandings and the new subject matter.[footnoteref:50] [48: sawyer, r. k. (ed.). (2005). the cambridge handbook of the learning sciences. cambridge university press; prince, m. (2004). does active learning work? a review of the research. journal of engineering education, 93(3), 223-231; bransford, j. d., brown, a. l., & cocking, r. r. (1999). how people learn. washington, dc: national academy press.] [49: sawyer, r. k. (ed.). (2005). the cambridge handbook of the learning sciences. cambridge university press; bransford, j. d., brown, a. l., & cocking, r. r. (1999). how people learn. washington, dc: national academy press.] [50: bransford, j. d., brown, a. l., & cocking, r. r. (1999). how people learn. washington, dc: national academy press; toshalis, e., & nakkula, m. j. (2012). motivation, engagement, and student voice. the education digest, 78(1), 29.] students in learner-centered environments are in control of the learning process and become creators of meaning.[footnoteref:51] as students actively integrate new information, experiences, relationships and perspectives into their preexisting structures and values, students develop new cognitive structures and build more complex understandings of both the present academic task and the different ways they can engage with challenging and unfamiliar topics.[footnoteref:52] this process of wrestling with new ideas and engaging in cognitive conflict, accompanied by student demonstrations of their learning and reflection on the learning process helps students become better critical thinkers and develop enhanced analytical and higher order thinking skills.[footnoteref:53] [51: bransford, j. d., brown, a. l., & cocking, r. r. (1999). how people learn. washington, dc: national academy press; toshalis, e., & nakkula, m. j. (2012). motivation, engagement, and student voice. the education digest, 78(1), 29; mostrom, a. m., & blumberg, p. (2012). does learning-centered teaching promote grade improvement? innovative higher education, 37(5), 397-405.] [52: bransford, j. d., brown, a. l., & cocking, r. r. (1999). how people learn. washington, dc: national academy press; cheang, k. i. (2009). effect of learner-centered teaching on motivation and learning strategies in a third-year pharmacotherapy course. american journal of pharmaceutical education, 73(3), 42; crumly, c. (2014). pedagogies for student-centered learning: online and on-ground. augsburg fortress publishers.] [53: prince, m. (2004). does active learning work? a review of the research. journal of engineering education, 93(3), 223-231; bransford, j. d., brown, a. l., & cocking, r. r. (1999). how people learn. washington, dc: national academy press; mezirow, j. (1997). transformative learning: theory to practice. new directions for adult and continuing education, 1997(74), 5-12; toshalis, e., & nakkula, m. j. (2012). motivation, engagement, and student voice. the education digest, 78(1), 29; magnussen, l., ishida, d., & itano, j. (2000, november). the impact of the use of inquiry-based learning as a teaching methodology on the development of critical thinking. journal of nursing education, 39(8), 360-364.] the benefits of learner-centered education are not limited to thinking skills, however. a robust body of research around learner-centered education and its essential components, interactive activities, collaborative processes, and student participation, evidence a host of positive academic, social, and emotional outcomes. students in learner-centered classrooms are more engaged and motivated.[footnoteref:54] these students perform and behave better in school and feel more connected to their peers and their schools.[footnoteref:55] learner-centered education improves student attendance, school completion rates, and student enjoyment of school.[footnoteref:56] students learn and retain more through learner-centered experiences and are better able to transfer their knowledge and learning to novel situations.[footnoteref:57] [54: toshalis, e., & nakkula, m. j. (2012). motivation, engagement, and student voice. the education digest, 78(1), 29; mitra, d. l. (2004). the significance of students: can increasing “student voice” in schools lead to gains in youth development? teachers college record, 106(4), 651-688. doi:10.1111/j.1467-9620.2004.00354.x; prince, m. (2004). does active learning work? a review of the research. journal of engineering education, 93(3), 223-231; webb, e., jones, a, barker, p., & van schaik, p. (2004). using e-learning dialogues in higher education. innovations in teaching international, 41(1), 93-103.] [55: goodenow, c. (1993). classroom belonging among early adolescent students: relationships to motivation and achievement. journal of early adolescence, 13(1), 21-43; daniels, e. & arapostathis, m. (2005). what do they really want? student voices and motivation research. urban education, 40(1), 34-59; prince, m. (2004). does active learning work? a review of the research. journal of engineering education, 93(3), 223-231; mitra, d. l. (2004). the significance of students: can increasing “student voice” in schools lead to gains in youth development? teachers college record, 106(4), 651-688. doi:10.1111/j.1467-9620.2004.00354.x.] [56: ekstrom, r.b., goertz, m.e., pollack, j.m., & rock, d.a. (1986). who drops out of high school and why? findings from a national study. teachers college record 87(3), 356-373; fielding, m. (2006). leadership, radical student engagement and the necessity of person-centred education. international journal of leadership in education 9(4), 299-313; mitra, d. l. (2004). the significance of students: can increasing “student voice” in schools lead to gains in youth development? teachers college record, 106(4), 651-688. doi:10.1111/j.1467-9620.2004.00354.x; prince, m. (2004). does active learning work? a review of the research. journal of engineering education, 93(3), 223-231.] [57: lowenstein, g. (1994). the psychology of curiosity; a review and reinterpretation psychological bulletin, 116(1):75 – 98; bransford, j. d., brown, a. l., & cocking, r. r. (1999). how people learn. washington, dc: national academy press; prince, m. (2004). does active learning work? a review of the research. journal of engineering education, 93(3), 223-231.] of course, to realize the benefits of learner-centered education requires an intentionality around the nature and processes of classroom activities, the academic tasks presented, and the student-teacher dynamic. learner-centered classrooms are characterized by classroom activities that value student voice and participation.[footnoteref:58] students are encouraged to use their reasoning skills, creativity, and strategic thinking abilities to approach and resolve problems that both have more than one right answer and more than one pathway to a final conclusion.[footnoteref:59] group deliberation and group problem solving are hallmarks of effective learner-centered education as students learn from their peers and from the interaction between their own ideas and the ideas of their classmates.[footnoteref:60] the teacher is positioned as a co-constructor of knowledge and a facilitator of student learning rather than a gatekeeper of information.[footnoteref:61] through this process of independent discovery, discourse, dialogue, and reflection, students become meaning-makers and gain a sense of agency over their own learning.[footnoteref:62] [58: mostrom, a. m., & blumberg, p. (2012). does learning-centered teaching promote grade improvement? innovative higher education, 37(5), 397-405; mezirow, j. (1997). transformative learning: theory to practice. new directions for adult and continuing education, 1997(74), 5-12; bransford, j. d., brown, a. l., & cocking, r. r. (1999). how people learn. washington, dc: national academy press.] [59: mezirow, j. (1997). transformative learning: theory to practice. new directions for adult and continuing education, 1997(74), 5-12; bransford, j. d., brown, a. l., & cocking, r. r. (1999). how people learn. washington, dc: national academy press.] [60: mezirow, j. (1997). transformative learning: theory to practice. new directions for adult and continuing education, 1997(74), 5-12; prince, m. (2004). does active learning work? a review of the research. journal of engineering education, 93(3), 223-231.] [61: crumly, c. (2014). pedagogies for student-centered learning: online and on-ground. augsburg fortress publishers; cheang, k. i. (2009). effect of learner-centered teaching on motivation and learning strategies in a third-year pharmacotherapy course. american journal of pharmaceutical education, 73(3), 42.] [62: toshalis, e., & nakkula, m. j. (2012). motivation, engagement, and student voice. the education digest, 78(1), 29; bransford, j. d., brown, a. l., & cocking, r. r. (1999). how people learn. washington, dc: national academy press; mitra, d. l. (2004). the significance of students: can increasing “student voice” in schools lead to gains in youth development? teachers college record, 106(4), 651-688. doi:10.1111/j.1467-9620.2004.00354.x.] the street law orientation weekend is heavily learner-centered. the goal is to introduce trainees to the practice and benefits of learner-centered education in a highly learner-centered way; rather than list the benefits or rely on research around the effectiveness of learner-centered pedagogy and methodology, trainees experience learner-centered education as participants. through the process of firsthand engagement followed by debrief, reflection, and critique, trainees come to appreciate the powerful transformative power of learner-centered education and can then draw on their own experience to inform their understandings around the efficacy of this approach in promoting student engagement, motivation, and learning. this experiential approach enables trainees to develop their own belief in the potential of learner-centered education. from the opening activity, ‘who gets the heart?’ through to the final quaker-style reflection, trainees are presented with a series of interactive activities that require them to draw upon their existing knowledge and values, engage in discussion and debate with their peers, and negotiate and achieve group accord around a proposed solution. there are no predetermined answers to any activity and students quickly learn that their voices, opinions, and reasoning skills are valued and honored throughout the process. over the course of the weekend, trainees are introduced to a variety of novel and creative scenarios and hypotheticals of increasing complexity, each requiring them to work collaboratively and construct meaning in a new learning framework. the diversity of interactive activities and the fun nature of these activities is intentional as research indicates that the “more unusual the learning action, the better it is remembered.”[footnoteref:63] in addition to the novelty and fun component of these activities, the emphasis on trainee voice, choice, and challenge leads to consistently high levels of engagement and motivation throughout the weekend. [63: lowenstein, g. (1994) the psychology of curiosity; a review and reinterpretation psychological bulletin 116(1):75 – 98.] in ‘who gets the heart?’, for example, trainees work in small groups to select one of five deserving and needy candidates for the sole available heart transplant. each candidate profile contains factors that trainees can interpret differently as counseling in favor (or against) each candidate’s application. as trainees weigh and evaluate the merits of each candidate in their small groups, the different values and importance each trainee assigns to these factors becomes evident. trainees share their opinions, present arguments in support of different candidates and must eventually reconcile their divergent priorities and perspectives and decide on a final candidate. as with each of the weekend’s activities, trainees are authentically in charge of the decision-making process (including determining how they will reach a final decision, whether through voting or required consensus, for example) and are prompted to share their group’s reasoning and arguments with the broader group. with ‘aliens’, trainee groups are presented with a list of fundamental rights and asked to collectively rank these rights in order of importance as the aliens slowly whittle away at the rights each group can retain. the trainees are eventually called upon to present a final list of three fundamental rights that the large group agrees are most critical, a conclusion reached only after the entire group assents. as with ‘who gets the heart?’, the cognitive conflict that inheres to this process of actively assimilating new and diverse opinions into present knowledge structures in order to achieve group consensus requires trainees to examine and reflect on their own belief systems and values. a group decision requires compromise, consideration of peer perspectives, and an opportunity to present and defend one’s opinions while accommodating the opinions of others. through this process, trainees develop an awareness around competing belief and value systems as well as a heightened sense of their own agency and the power of their individual voices in impacting a final decision. the learner-centered trajectory of the street law orientation weekend culminates in two activities that exemplify the best of learner-centered pedagogy, albeit in very different ways. trainees first are given the opportunity to work in pairs to design their own practice teaching lesson that they might later use in their secondary school placements. and while the facilitators are available as resources, the trainees select their own topics and construct their own lesson with objectives, activities, and evaluation of their own choosing. the trainees are encouraged to draw upon any of the successful pedagogical practices or teaching moves they experienced during the weekend but are prompted to generate a novel lesson that they must then execute in front of small groups of their peers. this process of building and delivering their own lesson requires the trainees to assimilate, reflect, and apply their learning from the weekend and is a concrete demonstration of their new knowledge and cognitive structures around the teaching process and belief in learner-centered pedagogy. the weekend then closes with a quaker-style reflection (i used to think . . . now i think . . .) during which each trainee shares an observation about how their thinking and approach to teaching has evolved over the course of the weekend. these observations invariably include a newfound appreciation for interactive activities, the value of student voice, and the importance of involving students in their own learning. c) building capacity: teacher preparation in addition to developing trainees’ beliefs in the merits of learner-centered education, the street law orientation weekend also seeks to develop in trainees the capacity to design and deliver learner-centered lessons. and while we recognize that a comprehensive teacher preparation program involves years of study and practice, the challenge of preparing the trainees to be successful teachers in just one weekend is made much more manageable by several critical factors. first, the trainees will benefit from the in-class support of veteran teachers and will not be responsible for classroom management or any administrative responsibilities. second, the trainees will be working in pairs to implement and execute each lesson. third, the trainees will be delivering a limited number of lessons (typically between 6-10 classes) and many of these lessons will be the proven street law lessons that trainees have already experienced and reflected upon as participants during the street law orientation weekend (all materials and lesson plans are shared with trainees after the weekend). these mitigating factors and the street law orientation weekend’s focus on four core best practices in teacher preparation position the trainees to succeed in their field placements. first, the street law facilitators model the methods, practices, and activities that trainees will later employ with their own students. research on teacher preparation and development demonstrates that teachers first learn about effective teaching by observing how effective teachers teach.[footnoteref:64] through observation of successful learner-centered techniques and pedagogical practices, new teachers gain an appreciation for what is possible and are more likely to replicate these techniques and practices in their own classrooms.[footnoteref:65] additionally, through participation in lessons and activities as learners, novice teachers gain an understanding for how these lessons play out in practice and what to expect as their own students experience similar lessons.[footnoteref:66] consistent modeling of learner-centered teaching techniques combined with firsthand involvement in learner-centered activities helps create in students both the desire and capacity to utilize these approaches in their own classrooms.[footnoteref:67] [64: korthagen, f., loughran, j., & russell, t. (2006). developing fundamental principles for teacher education programs and practices. teaching and teacher education, 22(8), 1020-1041; stigler, j. w., & hiebert, j. (1999). the teaching gap: best ideas from the world’s teachers for improving education in the classroom. new york, ny: free press; darling-hammond, l., & mclaughlin, m. w. (2011). policies that support professional development in an era of reform. phi delta kappan, 92(6), 81-92; grossman, p. (2011). framework for teaching practice: a brief history of an idea. teachers college record, 113(12), 2836-2843.] [65: darling-hammond, l., & mclaughlin, m. w. (2011). policies that support professional development in an era of reform. phi delta kappan, 92(6), 81-92; bransford, j. d., brown, a. l., & cocking, r. r. (1999). how people learn. washington, dc: national academy press; hiebert, j., & morris, a. k. (2012). teaching, rather than teachers, as a path toward improving classroom instruction. journal of teacher education, 63(2), 92-102.] [66: grossman, p. (2011). framework for teaching practice: a brief history of an idea. teachers college record, 113(12), 2836-2843; hiebert, j., & morris, a. k. (2012). teaching, rather than teachers, as a path toward improving classroom instruction. journal of teacher education, 63(2), 92-102; bransford, j. d., brown, a. l., & cocking, r. r. (1999). how people learn. washington, dc: national academy press.] [67: bransford, j. d., brown, a. l., & cocking, r. r. (1999). how people learn. washington, dc: national academy press; tabak, i., & radinsky, j. (2015). educators’ coaches, peers, and practices: revisiting how teachers learn. journal of the learning sciences, 24(3), 343–346; hiebert, j., & morris, a. k. (2012). teaching, rather than teachers, as a path toward improving classroom instruction. journal of teacher education, 63(2), 92-102.] but observation and participation alone are not enough. it is essential that new teachers reflect and process what they have seen and experienced in order to develop the capacity to integrate successful teaching techniques and methods into their own practices.[footnoteref:68] the best teachers often make teaching seem effortless and it is only through reflection and deliberate inquiry that the intentionality of their efforts and the connection between their teaching moves and the resultant student learning can be made visible.[footnoteref:69] this process of reflecting upon a learning experience from both the perspective of a teacher and a learner requires four discrete steps, often referred to as lesson study.[footnoteref:70] first, the individual instructional routine, teaching move, or pedagogical method must be isolated, identified, and defined.[footnoteref:71] once defined, the particulars of precisely how the method was executed in the classroom should be called forth.[footnoteref:72] third, the rationale for the teacher’s use of this method and the connection between the move and desired outcome should be examined.[footnoteref:73] finally, aspiring teachers should consider how—and whether—each particular move might be adapted or transferred into their own settings or practice.[footnoteref:74] this process of surfacing and reflecting pedagogical intent and execution helps new teachers develop the capacity and awareness to later incorporate similar (or better) methods into their own teaching.[footnoteref:75] [68: ball, d. l., & cohen, d. k. (1999). developing practice, developing practitioners: toward a practice-based theory of professional education. teaching as the learning profession: handbook of policy and practice, 3-22; hiebert, j., & morris, a. k. (2012). teaching, rather than teachers, as a path toward improving classroom instruction. journal of teacher education, 63(2), 92-102; lieberman, ann. (1995). practices that support teacher development. phi delta kappan 76(8), 591.] [69: hiebert, j., & morris, a. k. (2012). teaching, rather than teachers, as a path toward improving classroom instruction. journal of teacher education, 63(2), 92-102; garet, m. s., porter, a. c., desimone, l., birman, b. f., & yoon, k. s. (2001). what makes professional development effective? results from a national sample of teachers. american educational research journal, 38(4), 915-945; zeichner, k. (2012). the turn once again toward practice-based teacher education. journal of teacher education, 63(5), 376-382.] [70: hiebert, j., & morris, a. k. (2012). teaching, rather than teachers, as a path toward improving classroom instruction. journal of teacher education, 63(2), 92-102.] [71: zeichner, k. (2012). the turn once again toward practice-based teacher education. journal of teacher education, 63(5), 376-382; hiebert, j., & morris, a. k. (2012). teaching, rather than teachers, as a path toward improving classroom instruction. journal of teacher education, 63(2), 92-102.] [72: zeichner, k. (2012). the turn once again toward practice-based teacher education. journal of teacher education, 63(5), 376-382; hiebert, j., & morris, a. k. (2012). teaching, rather than teachers, as a path toward improving classroom instruction. journal of teacher education, 63(2), 92-102.] [73: garet, m. s., porter, a. c., desimone, l., birman, b. f., & yoon, k. s. (2001). what makes professional development effective? results from a national sample of teachers. american educational research journal, 38(4), 915-945; bransford, j. d., brown, a. l., & cocking, r. r. (1999). how people learn. washington, dc: national academy press.] [74: bransford, j. d., brown, a. l., & cocking, r. r. (1999). how people learn. washington, dc: national academy press; garet, m. s., porter, a. c., desimone, l., birman, b. f., & yoon, k. s. (2001). what makes professional development effective? results from a national sample of teachers. american educational research journal, 38(4), 915-945.] [75: bransford, j. d., brown, a. l., & cocking, r. r. (1999). how people learn. washington, dc: national academy press; tabak, i., & radinsky, j. (2015). educators’ coaches, peers, and practices: revisiting how teachers learn. journal of the learning sciences, 24(3), 343–346; hiebert, j., & morris, a. k. (2012). teaching, rather than teachers, as a path toward improving classroom instruction. journal of teacher education, 63(2), 92-102.] a third best practice of teacher preparation centers on the collaborative nature of teacher learning and development.[footnoteref:76] the benefits of sharing a learning experience around new methods, pedagogy, or content-specific instruction and then collectively discussing and reflecting on that experience are multiple and significant. this collaborative process generates a diversity of ideas, observations, and perspectives that helps new teachers understand both the theoretical rationale and practical implications from multiple angles.[footnoteref:77] the group approach to lesson study and the development of new skills and knowledge also creates communities of practice where the art and science of teaching is valued as both challenging and a continual improvement process.[footnoteref:78] working in teams to engage with problems of practice and skill development is safer and more welcoming as critique and critical analysis are depersonalized and each member participates in order to elevate the collective learning.[footnoteref:79] finally, the experience of contributing to collective improvement and problem solving in groups helps aspiring teachers realize the advantages of group work and understand how to structure effective groups within their own classrooms.[footnoteref:80] [76: easton, lois brown. (2008). from professional development to professional learning. phi delta kappan 89(10), 755-761; bush, robert n. (1977). we know how to train teachers: why not do so! journal of teacher education 28(6), 5-9; grossman, p., compton, c., igra, d., ronfeldt, m., shahan, e., & williamson, p. (2009). teaching practice: a cross-professional perspective. teachers college record, 111(9), 2055-2100; papay, j. p., taylor, e. s., tyler, j. h., & laski, m. (2016). learning job skills from colleagues at work: evidence from a field experiment using teacher performance data (no. w21986). national bureau of economic research.] [77: darling-hammond, l., & mclaughlin, m. w. (2011). policies that support professional development in an era of reform. phi delta kappan, 92(6), 81-92; easton, lois brown. (2008). from professional development to professional learning. phi delta kappan 89(10), 755-761.] [78: papay, j. p., taylor, e. s., tyler, j. h., & laski, m. (2016). learning job skills from colleagues at work: evidence from a field experiment using teacher performance data (no. w21986). national bureau of economic research; darling-hammond, l., & mclaughlin, m. w. (2011). policies that support professional development in an era of reform. phi delta kappan, 92(6), 81-92; bush, robert n. (1977). we know how to train teachers: why not do so! journal of teacher education 28(6), 5-9.] [79: bush, robert n. (1977). we know how to train teachers: why not do so! journal of teacher education 28(6), 5-9; easton, lois brown. (2008). from professional development to professional learning. phi delta kappan 89(10), 755-761; grossman, p., compton, c., igra, d., ronfeldt, m., shahan, e., & williamson, p. (2009). teaching practice: a cross-professional perspective. teachers college record, 111(9), 2055-2100.] [80: berry, b., daughtrey, a., & wieder, a. (2010). preparing to lead an effective classroom: the role of teacher training and professional development programs. center for teaching quality; garet, m. s., porter, a. c., desimone, l., birman, b. f., & yoon, k. s. (2001). what makes professional development effective? results from a national sample of teachers. american educational research journal, 38(4), 915-945.] without question, the single most important component of teacher training is providing teachers with the opportunity to practice their teaching by designing and implementing their own lessons.[footnoteref:81] teachers, like students, learn through doing.[footnoteref:82] when teachers move from merely thinking about teaching or learning about theory into the process of preparing and delivering a lesson, they are challenged to think about how an idea would work in practice and the myriad different skills, techniques, and pedagogical moves required to execute that idea in a classroom.[footnoteref:83] actually implementing and delivering that lesson then allows teachers to rehearse and apply those skills and provides immediate feedback and accountability on both what went well and what can be improved for the next iteration.[footnoteref:84] [81: garet, m. s., porter, a. c., desimone, l., birman, b. f., & yoon, k. s. (2001). what makes professional development effective? results from a national sample of teachers. american educational research journal, 38(4), 915-945; grossman, p., & mcdonald, m. (2008). back to the future: directions for research in teaching and teacher education. american educational research journal, 45(1), 184-205; grossman, p. (2011). framework for teaching practice: a brief history of an idea. teachers college record, 113(12), 2836-2843; ball, d. l., & cohen, d. k. (1999). developing practice, developing practitioners: toward a practice-based theory of professional education. teaching as the learning profession: handbook of policy and practice, 1, 3-22; zeichner, k. (2012). the turn once again toward practice-based teacher education. journal of teacher education, 63(5), 376-382.] [82: bransford, j. d., brown, a. l., & cocking, r. r. (1999). how people learn. washington, dc: national academy press; korthagen, f., loughran, j., & russell, t. (2006). developing fundamental principles for teacher education programs and practices. teaching and teacher education, 22(8), 1020-1041; mascolo, m. f. (2009). beyond student-centered and teacher-centered pedagogy: teaching and learning as guided participation. pedagogy and the human sciences, 1(1), 3-27.] [83: garet, m. s., porter, a. c., desimone, l., birman, b. f., & yoon, k. s. (2001). what makes professional development effective? results from a national sample of teachers. american educational research journal, 38(4), 915-945; zeichner, k. (2012). the turn once again toward practice-based teacher education. journal of teacher education, 63(5), 376-382; easton, lois brown. (2008). from professional development to professional learning. phi delta kappan 89(10), 755-761.] [84: easton, lois brown. (2008). from professional development to professional learning. phi delta kappan 89(10), 755-761; grossman, p. (2011). framework for teaching practice: a brief history of an idea. teachers college record, 113(12), 2836-2843.] through this practice-based approach, teachers construct their own new knowledge frames and develop an informed vision and understanding of what teaching entails that is both grounded in authentic work and adapted to fit their own teaching style and context.[footnoteref:85] ideally, this practice teaching occurs in a safe, collaborative learning space where teachers feel comfortable both experimenting with new ideas and receiving feedback on how to modify or change their practice to be more effective.[footnoteref:86] after all, “if you’re learning to paddle, you wouldn’t practice kayaking down rapids. you would paddle on a smooth lake to learn your strokes.”[footnoteref:87] [85: hiebert, j., & morris, a. k. (2012). teaching, rather than teachers, as a path toward improving classroom instruction. journal of teacher education, 63(2), 92-102; zeichner, k. (2012). the turn once again toward practice-based teacher education. journal of teacher education, 63(5), 376-382; korthagen, f. a., & kessels, j. p. (1999). linking theory and practice: changing the pedagogy of teacher education. educational researcher, 28(4), 4-17.] [86: grossman, p., compton, c., igra, d., ronfeldt, m., shahan, e., & williamson, p. (2009). teaching practice: a cross-professional perspective. teachers college record, 111(9), 2055-2100; easton, lois brown. (2008). from professional development to professional learning. phi delta kappan 89(10), 755-761] [87: grossman, p., compton, c., igra, d., ronfeldt, m., shahan, e., & williamson, p. (2009). teaching practice: a cross-professional perspective. teachers college record, 111(9), 2055-2100, 2076.] during the course of the street law orientation weekend, the trainees see best practices modeled, reflect on those practices, work collaboratively, and apply their new learning in practice teaching sessions. the street law facilitators know that teachers, especially novice teachers, will teach as they were taught and the facilitators model a wide array of techniques and routines designed to promote and encourage learner-centered education. every activity is interactive and involves collaborative decision making. trainee opinions and reasoning are critical components of each activity and the facilitators adopt open-minded inquiry stances in following up to student suggestions and thinking. concrete teaching skills such as how to divide students into groups, centering techniques, and the power of positive feedback are modeled throughout the weekend. after each activity, the trainees are asked to identify the different teaching moves and reflect on both the practicalities and rationale of each through a pedagogical device we call ‘chart groups.’ in chart groups, the trainees work collaboratively to list the what, the how, and the why of each teaching move. the trainees work in these chart groups throughout the weekend and present their own “top 10 teaching tips” on the last day. the trainees are then encouraged to incorporate their tips into their own practice lessons. these lessons are designed and implemented by trainees working in pairs with small groups of their peers as the student audience. the trainees find the experience of delivering their own lessons to be transformative in both understanding the practical demands of teaching and in their own confidence in their ability to develop and execute a lesson. after each practice lesson, the trainees are asked to first reflect on their own lesson and then their peers have an opportunity to provide constructive feedback. especially given the compressed nature of their teacher training during orientation weekend, building trainee comfort with their newfound skills is a central objective and both facilitators and peers focus primarily on the positive aspects of each practice lesson. this process of seeing effective learner-centered education modeled, collectively reflecting on the different teaching moves, and then working collaboratively to both execute and discuss a practice lesson equips the trainees with the capacity to effectuate successful learner-centered lessons and the enthusiasm to match. d) building community the final theme of the street law orientation weekend focuses on the importance of building community in the classroom, between facilitators and trainees, and within the trainee group. sometimes reduced to the adage “students don’t care how much you know until they know how much you care,” the connection between community building and effective teaching and learning cannot be overstated. building this community is a central objective of the orientation weekend and the street law approach is grounded in a well-documented body of research around best practices in teaching and learning broadly and in teacher training specifically. we define what we mean by community, discuss the benefits of community, and explain how community is created before turning to the specifics of the street law approach. within the education space, a community can be defined as a collection of individual learners with shared practices, beliefs, and understandings who collectively participate in the pursuit of a common goal.[footnoteref:88] a welcoming community, or positive learning environment, is characterized by mutual interdependence, meaningful caring and supportive relationships, and the creation of a safe space where individuals feel valued and heard.[footnoteref:89] members of this group, classroom, or school community understand both why the community exists and the purpose of this community.[footnoteref:90] community formation occurs when individuals share an experience that creates and reinforces a group identity and provides feelings of connectedness and belonging to members of this learning community.[footnoteref:91] [88: battistich, v., solomon, d., watson, m., & schaps, e. (1997). caring school communities. educational psychologist, 32(3), 137-151; barab, s. a., & duffy, t. (2000). from practice fields to communities of practice. theoretical foundations of learning environments, 1(1), 25-55.] [89: battistich, v., solomon, d., watson, m., & schaps, e. (1997). caring school communities. educational psychologist, 32(3), 137-151; flanagan, c., stoppa, t., syvertsen, a.k., & stout, m. (2010). schools and social trust. in l. sherrod, j. torney-purta, & c. flanagan (eds.), handbook of research on civic engagement in youth (307-330). hoboken, nj: john wiley & sons, inc.] [90: lave, j., and wenger, e. (1991). situated learning: legitimate peripheral participation. new york: cambridge university press; barab, s. a., makinster, j., & scheckler, r. (2004). characterizing system dualities: building online community. designing for virtual communities in the service of learning, 53-90.] [91: barab, s. a., & duffy, t. (2000). from practice fields to communities of practice. theoretical foundations of learning environments, 1(1), 25-55; flanagan, c., stoppa, t., syvertsen, a.k., & stout, m. (2010). schools and social trust. in l. sherrod, j. torney-purta, & c. flanagan (eds.), handbook of research on civic engagement in youth (307-330). hoboken, nj: john wiley & sons, inc.] establishing and supporting a positive learning community or climate leads to significant and interconnected pro-social academic, behavioral, and social outcomes. students who experience positive learning environments perform better academically, are more open to learning, and are more likely to trust the knowledge and information shared by the teacher.[footnoteref:92] students who feel cared for and emotionally supported in their learning communities are more motivated, engaged, and enthusiastic.[footnoteref:93] these students put forth more effort, participate more frequently, and attend and persist in the learning process to a greater degree that students who don’t share a sense of community.[footnoteref:94] the relationships and peer and teacher support that characterize supportive and safe learning communities create a sense of belonging that leads to less intragroup competitiveness, heightened cooperation, increased willingness to take risks, and a more positive attitude towards school and learning.[footnoteref:95] [92: berkowitz, r., moore, h., astor, r. a., & benbenishty, r. (2016). a research synthesis of the associations between socioeconomic background, inequality, school climate, and academic achievement. review of educational research, 0034654316669821; furrer, c., & skinner, e. (2003). sense of relatedness as a factor in children's academic engagement and performance. journal of educational psychology, 95(1), 148; bryk, a., & schneider, b. (2002). trust in schools: a core resource for improvement. new york, ny: russell sage foundation; raider-roth, m. (2005). trusting what you know: the high stakes of classroom relationships. indianapolis, in: jossey-bass; olson, kirke (2014). the invisible classroom: relationships, neuroscience, & mindfulness in school. new york, ny: w.w. norton & company, ltd.] [93: tschannen-moran, m. (2014). the interconnectivity of trust in schools. in van maele, d., van houtte, m., & forsyth, p.b. (eds.) trust and school life (pp. 57-83). new york, ny: springer; urdan, t., & schoenfelder, e. (2006). classroom effects on student motivation: goal structures, social relationships, and competence beliefs. journal of school psychology, 44(5), 331349.] [94: ruzek, e. a., hafen, c. a., allen, j. p., gregory, a., mikami, a. y., & pianta, r. c. (2016). how teacher emotional support motivates students: the mediating roles of perceived peer relatedness, autonomy support, and competence. learning and instruction, 42, 95-103; furrer, c., & skinner, e. (2003). sense of relatedness as a factor in children's academic engagement and performance. journal of educational psychology, 95(1), 148; urdan, t., & schoenfelder, e. (2006). classroom effects on student motivation: goal structures, social relationships, and competence beliefs. journal of school psychology, 44(5), 331349; klem, a. m., & connell, j. p. (2004). relationships matter: linking teacher support to student engagement and achievement. journal of school health, 74(7), 262-273.] [95: gillen-o’neel, c., & fuligni, a. (2013). a longitudinal study of school belonging and academic motivation across high school. child development, 84(2), 678-692; furrer, c., & skinner, e. (2003). sense of relatedness as a factor in children's academic engagement and performance. journal of educational psychology, 95(1), 148; klem, a. m., & connell, j. p. (2004). relationships matter: linking teacher support to student engagement and achievement. journal of school health, 74(7), 262-273; tschannen-moran, m. (2014). the interconnectivity of trust in schools. in van maele, d., van houtte, m., & forsyth, p.b. (eds.) trust and school life (pp. 57-83). new york, ny: springer; wentzel, k. r. (1997). student motivation in middle school: the role of perceived pedagogical caring. journal of educational psychology, 89(3), 411.] the value and importance of creating a positive and safe learning community also applies to the process of educating the individuals who bear primary responsibility for shaping this climate-teachers. teachers who participate in positive learning communities during their teacher training also exhibit the impactful academic, behavioral, and social outcomes outlined above.[footnoteref:96] additionally, teacher training models that intentionally create communities, or cohorts, of novice teachers produce more confident and effective teachers who are more likely to seek and share resources, more likely to feel a sense of collective responsibility, and more likely to continue to grow and develop as teachers even beyond the initial shared experience.[footnoteref:97] significantly, the benefits of a teacher training model that encourages and promotes community don’t end with the teacher training process. teachers who learn in communities gain an appreciation for both the importance of learning communities and the steps needed to create these communities, a mindset and skillset that later translate into their own practices and the communities they will build in their own classrooms.[footnoteref:98] [96: beck, c., & kosnik, c. (2001). from cohort to community in a preservice teacher education program. teaching and teacher education, 17(8), 925-948; wenger, e., & lave, j. (1991). situated learning: legitimate peripheral participation. cambridge: cambridge university press.] [97: wenger, e., & lave, j. (1991). situated learning: legitimate peripheral participation. cambridge: cambridge university press; beck, c., & kosnik, c. (2001). from cohort to community in a preservice teacher education program. teaching and teacher education, 17(8), 925-948; hadar, l., & brody, d. (2010). from isolation to symphonic harmony: building a professional development community among teacher educators. teaching and teacher education, 26(8), 1641-1651; berry, b., daughtrey, a., & wieder, a. (2010). preparing to lead an effective classroom: the role of teacher training and professional development programs. center for teaching quality.] [98: catalano, r. f., oesterle, s., fleming, c. b., & hawkins, j. d. (2004). the importance of bonding to school for healthy development: findings from the social development research group. journal of school health, 74(7), 252-261; beck, c., & kosnik, c. (2001). from cohort to community in a preservice teacher education program. teaching and teacher education, 17(8), 925-948.] community does not happen by accident. building a positive learning community involves an intentionality around structure, relationships, and pedagogy. to form a community, there must first be a shared experience and a common purpose that give rise to a group identity.[footnoteref:99] within schools and learning environments, these structural underpinnings typically exist when a group such as class of students—or cohort of teachers in training—comes together in one place to learn about a subject or to practice and acquire a set of skills with an established learning objective. supportive and caring relationships are formed by respecting individual differences, demonstrating and practicing genuine care for the wellbeing of others, and allowing for the sharing of individual opinions and experiences.[footnoteref:100] giving students the opportunity to get to know one another, to share about their own backgrounds, and to listen to the views and viewpoints of others are techniques that help build the trust and safe space elements of community.[footnoteref:101] specific pedagogical practices that help build community include giving students autonomy and decision-making authority, structured problem-solving tasks that require cooperative and small group work, and providing multiple opportunities for interaction, discussion, and sharing.[footnoteref:102] [99: barab, s. a., & duffy, t. (2000). from practice fields to communities of practice. theoretical foundations of learning environments, 1(1), 25-55.] [100: flanagan, c., stoppa, t., syvertsen, a.k., & stout, m. (2010). schools and social trust. in l. sherrod, j. torney-purta, & c. flanagan (eds.), handbook of research on civic engagement in youth (307-330). hoboken, nj: john wiley & sons, inc.; arbaugh, j. b., & garrison, d. r. (2007). researching the community of inquiry framework: review, issues and future directions. the internet and higher education, 10, 157-172; paloff, r., & pratt. k, (2001). building learning communities in cyberspace: effective strategies for the online classroom. san francisco: jossey-bass; klem, a. m., & connell, j. p. (2004). relationships matter: linking teacher support to student engagement and achievement. journal of school health, 74(7), 262-273; wentzel, k. r. (1997). student motivation in middle school: the role of perceived pedagogical caring. journal of educational psychology, 89(3), 411] [101: klem, a. m., & connell, j. p. (2004). relationships matter: linking teacher support to student engagement and achievement. journal of school health, 74(7), 262-273; hadar, l., & brody, d. (2010). from isolation to symphonic harmony: building a professional development community among teacher educators. teaching and teacher education, 26(8), 1641-1651; allen, j., gregory, a., mikami, a., lun, j., hamre, b., & pianta, r. (2013). observations of effective teacher-student interactions in secondary school classrooms: predicting student achievement with the classroom assessment scoring system-secondary. school psychology review, 42(1), 76.] [102: catalano, r. f., oesterle, s., fleming, c. b., & hawkins, j. d. (2004). the importance of bonding to school for healthy development: findings from the social development research group. journal of school health, 74(7), 252-261; goodenow, c. (1993). classroom belonging among early adolescent students’ relationships to motivation and achievement. the journal of early adolescence, 13(1), 21-43; ruzek, e. a., hafen, c. a., allen, j. p., gregory, a., mikami, a. y., & pianta, r. c. (2016). how teacher emotional support motivates students: the mediating roles of perceived peer relatedness, autonomy support, and competence. learning and instruction, 42, 95-103] over the course of the street law orientation weekend, the trainees move from a collection of individuals loosely familiar with each other and the concept of street law to a cohesive and supportive community marked by a sense of cooperation and connectedness. the shared experience, coming together to spend a long weekend talking, learning, and interacting around a common purpose, forges a group identity and sense of belonging as street law teachers. relationships are intentionally cultivated from the outset as trainees learn each other’s names and rotate through three different small groups on the first night alone. in saturday morning’s opening session, facilitators use personal pictures to share their individual stories of self and then ask trainees to do likewise by choosing a picture from their phones and sharing how this picture represents home or family with members of their small group. the presentation and sharing of these pictures—and the accompanying laughter, vulnerability, and emotion—helps quickly build relationships between both the facilitators and trainees and among the trainees. what might have been a quiet and reserved group on friday night quickly evolves into a talkative and collaborative collection by the close of this saturday morning session. as trainees move through their different groups over the course of the weekend, each interactive activity is designed to give trainees the chance to discuss and make decisions and the opportunity to explain their views, both within their small groups and within the larger group. trainees problem solve in teams and divergent views are encouraged and supported. a slideshow of pictures showing trainees talking, laughing, and interacting during the day’s activities are shown at the beginning of the following day. trainees work in pairs to design their practice teaching lesson and the feedback and support trainees receive during the ensuing peer debrief are intentionally structured to build confidence and highlight the positive elements of each practice lesson. the closing quaker reflection is the biggest testament to the community built during the street law orientation weekend, however. many trainees explicitly commented on the sense of trust, belonging, and connectedness they now feel as part of this group and in both ireland and scotland, at least one trainee mentioned how they didn’t think it was possible to build such a tight community in such a short time . . . but were proven wrong. iv. introducing street law in ireland and scotland despite the rapid spread of street law within the united states, global adoption of the street law model has been sporadic and generally proceeded at a significantly slower pace. the reasons for this difference are multiple and include the relatively late emergence of a global clinical movement for diffusion and dissemination of best practices, the absence of a strong body of research supporting the model, and a perceived incompatibility between legal systems and priorities in the united states and those across the globe. in fact, it was only through a combination of serendipitous timing and visionary entrepreneurship that street law was introduced to the law societies of ireland and scotland. we hope that through the presentation of the research base, supra, and the capacity of street law to promote and advance universal legal education goals and principles, infra, to change this trend. a) introduction of street law at the law society of ireland freda grealy, head of the diploma center at the law society of ireland, first encountered street law when she met professor richard roe at an international conference and was inspired by his stories around the transformative power of street law. roe has been director of the street law clinic at georgetown university law center since 1983 and is one of street law’s most experienced and renowned practitioners. grealy subsequently observed the work of roe and his clinical teaching fellows as they led training sessions with georgetown law students and then supported those students as they implemented the street law program at different high schools throughout washington, d.c. it was unlike any law teaching that grealy had seen before; there was energy and passion by both the instructors and the students around formidable legal issues. as the instructors challenged their students’ notions of law and justice and encouraged their students to reflect on the significance of the law, the instructors also prompted students to engage with the question of why they were interested in law and possible future careers as lawyers. for a number of reasons, it appeared that the street law methodology would be a good fit for trainees at the law society of ireland and would resonate with the core objectives of the law society. the law society of ireland, established in 1773, is the educational, representative and regulatory body of the solicitors’ profession in ireland, and currently the exclusive provider of training programs for solicitors. there are two main elements comprising the solicitor professional training regime in ireland: one is the vocational and professional legal educational element, conducted at the law society of ireland; the other is the in-firm training period conducted in the training firm. during this two-year period when trainees are preparing to be solicitors, trainees rotate between the law society, where they take academic and skills-based courses as part of their professional practice courses, and their law firm or legal organization placements. while at the law society, in addition to the goal of teaching trainees the needed legal skills, the law society seeks to instill in trainees a commitment to increasing access to legal education and the legal profession, develop and awareness and exposure around the importance of pro bono legal services, and foster an ethos of public service within the legal profession. street law offers a meaningful way to accomplish these goals while both building community among the trainee cohort and providing the trainees with meaningful experiential learning. additionally, because street law does not compete with solicitors for clients or business while helping trainees develop their professional identities and presentation and planning skills, the program has been warmly embraced by legal professionals and future employers. the street law program also helps build relationships between the law society and local universities and college access programs, thus strengthening the reach of the law society and the appeal of the legal profession. with the support of the director of education, the law society piloted the program with selected volunteers teaching a six-week “street law” course to secondary school students in 2013. the law society partnered with 13 secondary schools who are designated disadvantaged deis (delivering equality of opportunity in schools) schools in dublin.[footnoteref:103] now in its fourth year, street law continues to grow in popularity. in 2016, 41 professional practice course i trainees (ppc i) were chosen to participate in the program from more than 75 applicants. the program has a structured framework where trainees are paired up before the orientation weekend, with each pair knowing they will lead eight teaching sessions across the street law semester at one of the designated secondary schools. for many schools, the culminating program event is a mock trial hearing, sponsored by the law society and sometimes presided over by a real judge in the criminal courts of justice. from an assessment point of view, the trainees are obliged to complete various tasks that they post on the online course platform including sharing a lesson plan, posting regular reflections on their teaching experiences and a final assignment. on completion, trainee graduates of the street law program are awarded certificates which are presented at a formal conferring ceremony attended by all partners and collaborators and presided over by a high court judge. [103: the law society of ireland focuses on secondary school students in their transition year. the transition year is a bridge year between junior and senior cycles in secondary school “mission to promote the personal, social, educational and vocational development of pupils and to prepare them for their role as autonomous, participative, and responsible members of society.” department of education and science (1995). transition yearguidelines for schools. retrieved from https://www.education.ie/en/schools-colleges/information/curriculum-and-syllabus/transition-year-/ty_transition_year_school_guidelines.pdf] the street law program has enjoyed tremendous popularity and a marked growth in interest in ireland for several reasons. first, the methodology works. secondary school students enjoy discussing and debating, forming and sharing their opinion, and learning from their peers as well as their law student instructors. second, street law develops a host of critical skills in the students.[footnoteref:104] street law focuses on areas of the law that are of interest and relevance to students and aims to develop their advocacy and public speaking skills and provide them with a foundation in the principles of democracy. third, street law makes the law seem much more accessible and less impersonal. the connections that occur outside of the pure teaching between trainee and student are powerful; these work to socialize and encourage students from disadvantaged groups to think that they too can be lawyers and show them the positive side to the law. the law society goes on to invite the students to the law society campus and demonstrates to the students that they too have the potential to go and study law if they wish. [104: arthurs, s. (2015). street law: creating tomorrow’s citizens today. lewis & clark law review, 19(4), 925-961.] fourth, street law is consistent with the law society’s mission of public outreach, developing legal skills and a service orientation in young lawyers, and promoting a positive image of solicitors in the general community. a testament to the success of street law in this regard was the recent focus on street law during an episode of “nationwide,” a popular national program on irish television station rte. during this segment, camera crews followed trainees into a local school and highlighted the work of the street law trainees and students as they demonstrated learner-centered lessons and the culminating mock trial. finally, street law has the potential to bring many disparate groups of students and trainers together. in addition to teaching in secondary school, each year the law society has identified new synergies, from collaborating with organizations such as solas[footnoteref:105] and working with detainees in wheatfield prison, to working with community service organizations such as public interest law alliance (pila) and future voices[footnoteref:106] to assist a group of youths in making a submission to the law reform commission on proposed cyber-bullying legislation. in addition, a number of street law trainees have worked with the irish rule of law international (irli)[footnoteref:107] and ngos such as bridges across borders south east asia community legal education (babseacle)[footnoteref:108] to partner in street law community teaching initiatives in myanmar. the street law orientation weekend is the launching pad for all of these projects as trainees who undergo the orientation are exposed to how clinical legal education intersects with social justice, resulting in an increased interest and participation from trainees in volunteering further. [105: solas homepage. (n.d.). retrieved march 16, 2016, from http://www1.solas.ie/ ] [106: vision. (n.d.). retrieved march 16, 2016, from http://www.futurevoicesireland.org/ ] [107: irish rule of law international. (n.d.). retrieved march 16, 2016, from http://irishruleoflaw.ie/ ] [108: babsea-cle home. (n.d.). retrieved march 16, 2016, from https://www.babseacle.org/ ] the orientation weekend is a powerful catalyst for the learning and growth that happens over the course of the program. for street law trainees, the orientation weekend and the months that follow provide many opportunities for personal and professional development. the orientation weekend occurs during a pivotal time in the development of the young lawyers, with fantastic potential to harness the enthusiasm of neophyte trainees and their motivation to put their legal knowledge to good use. in addition to the more obvious impact on skills and knowledge of trainees, street law educates them about the contribution and impact they can make to the community as solicitors by volunteering their time, sharing their knowledge, and modeling civic professionalism. this realization can assist them in developing and aligning with a more positive professional identity as lawyers, a valuable lesson which can support them at times when the challenges of their training period may cause them to doubt their professional worth or the contribution they can make. b) introduction of street law at the law society of scotland rob marrs, head of education at the law society of scotland (lss), first became interested in the street law program when a staff member attended a training at the georgetown university law center, and suggested that street law might reinforce and promote core objectives of the law society of scotland. serendipitously, the law society of ireland (lsi) was hosting its initial training in dublin a short time later and two lss staffers attended. both were extremely impressed with the program and realized that street law would help meet some of lss’s statutory and internal objectives. the law society of scotland was established in 1949 as the professional body for scottish solicitors. the core objectives of the law society are to represent the solicitor profession in scotland and to represent the public in relation to this profession. the legal services (scotland) act of 2010 supplemented these broad goals with an explicit objective to promote and ensure equal opportunities within the legal profession for all people, regardless of background. a lss research project, fair access to the legal profession,[footnoteref:109] identified the single greatest barrier to an individual from a low-income background becoming a solicitor was gaining access to an accredited legal education program. the society realized that outreach and promotion of legal education in schools in low-income communities would be a powerful tool in encouraging students from these communities to study law. additionally, the law society had long sought to improve its public legal education program and street law offered the unique opportunity to accomplish both goals. additionally, the chance to promote public service while giving law students practical training and enhanced legal knowledge and presentation skills appealed to law society leadership and members. [109: marrs, r., & meighan, d. (2014) fair access to the legal profession. the law society of scotland. retrieved from https://www.lawscot.org.uk/media/295065/fair-access-for-publication-300114.pdf.] the year after the lss staffers attended the dublin training, lss liaised closely with colleagues from georgetown and from lsi to launch the first scottish program. facilitators and two trainees from the law society of ireland supported remotely by two georgetown street facilitators, delivered the first training weekend to twenty law school trainees. these students were then paired up and delivered a six lesson program to scottish state schools. the students themselves designed and delivered the lessons as part of the curriculum. the main focus throughout has always been on the secondary school pupils. the program operates in state schools and focuses primarily on schools that have not traditionally sent many pupils to university. during the 2014 academic year, the program started with 34 classes in 25 schools. these were based in and around the three largest cities in scotland (edinburgh, glasgow and aberdeen). the next year, the law society worked with more than 50 classes in over 30 schools. as well as returning to the overwhelming majority of schools from the previous year, the lss is working with new schools in each of those cities and has since expanded into dundee, paisley and stirling. the street law program in scotland has also experienced a marked increase in popularity at the law society, heightened student interest, and new demand from local schools for several reasons. first, the methodology resonates strongly with the themes in curriculum for excellence,[footnoteref:110] particularly as part of the crime and the law module within the modern studies course. second, the pupils enjoy the methodology which places them at the center of legal discussion and debates. third, street law’s focus on areas of law that are of interest to the pupils (often because of discussion between street lawyers, teachers and pupils) makes the lessons hyper-relevant to all in the class. fourth, street law inculcates a number of critical skills such as advocacy, negotiation, public speaking and critical thinking. fifth, street law brings the law to life and more obviously relevant to young people in scotland. sixth, it shows the positive side of the law and introduces the idea of social activism (i.e. what the law ought to be as well as what the law is). seventh, street law helps develop the skills of new lawyers who – in turn – connect with school pupils. eighth, there has been a considerable upsurge in interest in the law in scotland–particularly in constitutional and public administrative law–since the referendum on scottish independence in september 2014 and the 2016 referendum on the united kingdom’s continued membership in the european union. [110: curriculum for excellence is the national curriculum for scottish schools for learners from age 3 to 18. curriculum for excellence identified the four key purposes of education; those that enable young people to become ‘successful learners, confident individuals, responsible citizens, and effective contributors’. more information can be found here: http://www.educationscotland.gov.uk/learningandteaching/thecurriculum/] the success of the street law program in scotland has not gone unnoticed. on february 24th 2017, the law society of scotland’s street law program won the european association excellence award for best training initiative. the awards recognize excellence in various categories by trade associations and professional bodies across europe. the street law program was selected from more than 60 finalists to receive the prestigious award and the law society expects that this award will only increase demand and interest in the program. v. orientation weekend the sections that follow will describe the recent trainings hosted by the law societies of ireland and scotland, with particular focus on the 2015 workshops and their evaluations. the trainings consist of a series of interactive activities designed to build both law-related/civic content and skills as well as best practices of learner-centered teaching. these activities are arranged in parallel trajectories that unfold with increasing levels of complexity. through engaging in the activities and then experiencing and reflecting on the law-related and methodological value of each successive activity, trainees gain the invaluable opportunity to synthesize for themselves the principles of effective learning and teaching based on their own experiences, through the “inside view.” the following sections will first discuss the activities’ content and methods of each activity. we then reflect on how each activity connects to the broader themes of building belief, capacity, and community. throughout the trajectory, we aspire to demonstrate the principles and practices the law society of ireland captured in the slogan on the t-shirts awarded to trainees: “talk less; teach more.” a) stages in the trajectory (spoiler alert: we would never spell this out in a training) 1) foundation: valuing student ideas. after the sparest of introductions, we plunge into an entirely open-ended negotiation based only on participants’ opinions in which there is no correct answer, ‘who gets the heart?’. the idea is to give participants the experience that we welcome their ideas and that it will be the participants’ expression of their insights into the activities, not the instructors, that will drive the training. as in all subsequent stages, the participants will examine and discuss both the content to be learned and methods employed. 2) building student voices. the second activity, ‘aliens’, builds on the first by adding a level of complexity by generating a debate on prioritizing basic human rights. we do not define these rights; rather, the participants draw upon their prior knowledge or understanding of the rights. nor do we prescribe how to go about prioritizing them. the real lesson of the activity is not the ranking of the rights but the variety of the processes and discourse skills the participants use in coming to agreement. participants discover the value of acting as a discourse community. 3) sharing stories and values: in this session, facilitators and trainees share parts of their stories and values pertaining to their involvement in the training. 4) adding analytical reasoning: in the third activity, ‘should it be a crime?’, also based entirely on participants’ opinions and having no correct answers, participants decide whether or not their hypothetical law reform commission will treat a number of carefully chosen and provocative situations as criminal or not. as participants employ analytical reasoning in their discourse communities, they not only learn fundamental principles of criminal law but also uncover a methodological framework for developing learning objectives. 5) inviting student questions: the fourth stage in the trajectory adds an essential but often underutilized dimension to teaching – building a lesson on student questions, where student imagination and questions drive the activity. in this training, the facilitators offered three alternative activities, subdividing the participants into three subgroups. each of these activities, two case studies and a skill building activity, essentially draw on participant questions to determine guilt or innocence or solve a problem. participants review both the skills and the methodology of questions. 6) integrating facts and law through advocacy: the fifth stage increases the levels of complexity and interactivity still further by having the participants play the roles of plaintiffs, defendants or judges in mini mock trials. the fact pattern is engaging, short yet complex, including brief stipulated facts and witness statements, evidence, and law. the activity can be accomplished through participants’ present ability and knowledge; no training in forms of questions or procedures is necessary. afterwards in the group as a whole, participants examine outcomes, strategies, skills and methodologies. 7) culminating activity: planning and teaching practice lessons. now, participants are rearranged into subgroups, then paired and asked to design and then teach to the others in the subgroup short lessons of their own that draw on the methodologies and experiences of the previous two days. facilitators debrief these lessons with a focus on the positive attributes of the lesson plans and methods employed, not on the individual performances. 8) summary, review and evaluation: the training concludes with activities that generate participants’ summaries, reviews and assessments of the training and their accomplishments. supplementary pedagogical substantive sessions: between several of the activities comprising the cognitive and expressive trajectory, the participants review and synthesize the learning principles of each stage, and facilitators provide at various points will introduce additional learning strategies, discussions of learning theory and practice, lesson design, personal experiences, and practical tips. in longer trainings, facilitators may also provide some instruction on lesson design assessment, classroom management, and guide participants through their own first experiences with this process. pictures from the 2015 orientation workshops showing participants engaged in each of these activities are freely available at https://www.flickr.com/photos/141482972@n07/. these pictures will hopefully provide practitioners seeking to replicate or modify these activities with examples of how students at different institutions interacted during our sessions.[footnoteref:111] [111: for example, the annual orientation for law students at georgetown law center has grown to five days and includes team building and other activities. in past years, the fall georgetown street law orientation has sometimes included a longer mock trial to build the awareness of our law students of what the program builds to in the culminating experience of the spring semester of the program.] b) themes: belief, capacity and community as introduced above, woven throughout the orientation activities and lessons are the core themes of belief, capacity, and community. our goal is that by the end of the weekend our trainees will develop (1) belief in the learner centered educational methodology, (2) the capacity to design engaging and stimulating lesson plans that tie concretely to legal substance, and (3) an understanding of the importance of community—both amongst the trainees themselves and the high school students in their classrooms.[footnoteref:112] [112: we have found these themes to be useful as an overall structure for the training. however, our training could be described by other themes, such as “experiencing, reflecting, and creating.” the key is for the facilitators to organize the training around core themes aligned with the objectives of the training and best teaching practices.] developing belief in the learner centered teaching methodology is one of our primary goals over the orientation weekend because the concept at the heart of street law is to provide an opportunity for students and trainees to think critically about the law, the societal context that gave rise to our legal system, and their own role within this legal system. in order to build and deliver the lessons that will help students accomplish these tasks, trainees must first experience for themselves the effectiveness of the methodology. as facilitators we are constantly modeling what we expect the trainees will adopt and bring to their own classrooms. just as facilitators create the opportunity to think critically about the law through lessons that pull trainees into discussion, debate, analysis, comparison, and evaluation, we want trainees to do the same with their students. we do this by intentionally designing lesson plans that have us “talking less and teaching more.” we are facilitators of student interaction and, ideally, take a moderator’s role as students dissect the laws upon which our society is built. strong lessons, that truly inspire and engage students, take time to write. they require substantive and methodological skill and personal investment and are more complex to plan for than a traditional lecture-based lesson. our goal is that trainees leave orientation believing in the street law teaching methodology so that they will dedicate the time necessary to design innovative, engaging lesson plans for their high school students. our second core theme is capacity, because belief alone is not enough. trainees must have the ability to design lessons on their own that stimulate high cognitive critical thinking skills, in order to carry the heart of street law into their classrooms. developing and implementing engaging lesson plans is a skillset that is developed throughout the semester as trainees flex their muscles to create innovative lessons and the ability to reflect on and improve those first iterations. conventional training typically provides lesson plan templates and list of possible strategies and desired outcomes, but street law training does more-by first experiencing the weekend orientation as learners themselves, the trainees come to understand the theory and pedagogy in order to then design and conduct their own high quality lessons. valuing community is our final core theme for the weekend. community is important both within the cohort of trainees and within each individual secondary school classroom. relationships amongst the trainees provide for an environment where individuals feel comfortable sharing lesson plans and resources—which will help trainees to mutually support one another and share the extra weight of planning for class. within each secondary school classroom, a strong sense of community, acceptance, and respect contributes to creating the space needed for students to challenge laws and voice their true opinions, especially when those opinions go against the grain of what is traditionally accepted. students are more ready, able, and willing to learn in classroom environments where they feel valued and comfortable. creating these welcoming classroom communities is particularly important when so much of the street law methodology relies on participatory activities and peer learning. we develop belief in the street law methodology and capacity in our future trainees through the guided debrief conversations and reflective exercises we build into the activities throughout the orientation weekend to foster critical reflection. the activities are samples of exemplary street law activities in a trajectory of increasing legal, cognitive and expressive complexity. we debrief them first substantively, modeling as we would do in a regular classroom, then methodologically, from the point of view of teaching and learning practice, generating principles of good teaching. these principles are synthesized from the trainees’ experiences and observations. we refrain from stating them ourselves. for many of the orientation activities we ask our trainees to analyze what we did during the lesson, why we executed it that way, and how we facilitated it. we develop community by modeling techniques that initiate meaningful, natural, human interaction. from the first minutes of the training through the closing sessions, trainees are consistently invited to share their thoughts and opinions to help deepen everyone’s experience. the goal is to construct spaces where natural connections can be forged and relationships can begin to flourish. vi. nuts and bolts a) friday evening foundation: valuing student ideas: who gets the heart? the first evening of the training sets the tone of learner-centeredness by immediately engaging in an activity that generates lively discourse among the trainees. rather than beginning with an outline of the training, a lecture about methodology, or a description of street law, we begin as a new street law class begins: by doing. the facilitators model the “do first, unpack later” framework espoused by street law in order to first generate interest and excitement around a law-related activity and then to backwards map the learning and the processes that facilitated that learning. after brief introductions of the facilitators, one facilitator groups the trainees into small groups of 4-5 to begin the ‘who gets the heart?’ simulation. once in groups, the facilitator informs the groups that each group is a transplant committee that must quickly determine who among the listed candidates should receive the one available heart. see appendix i. trainees are informed that the whole group must agree on the decision. after making the decision, the facilitator asks each group to share out their chosen patient and the reasons for their decisions. then the facilitator distributes additional facts to some members of the groups or asks different group members to role-play as one of the candidates seeking a heart. these modifications speak to the “character” of the trainees and are meant to create tensions or difficulties in the decision-making process, as well as helping the participants develop multiple perspective skills. see appendix ii.   again, allowing for further student discussion the facilitator asks the groups to share out their decisions, the reasons why they made their selections, and the criteria and process they used in coming to their decision. trainees may choose whether to share their additional facts and how they influenced (or did not influence) this second round of decision-making. the facilitator typically brings out the diversity of the approaches, ranging from votes to lotteries. at this point, the facilitator calls “timeout” on the simulation and debriefs the session from a teacher’s point of view, on the methodology. as will become pattern over the course of the weekend, this debrief is structured around the following three prompts: 1) what did we do? 2)  how did we do it? 3) why did we do it?   the what question gets at the substance, topic, or objective of the activity. the how question illuminates the techniques, or “teaching moves” we used to help the trainees discover the substance. the why gets to the root of the methodology and the intentionality behind each component of the activity. the methodology and learning principles developed are discussed in greater detail below. building student voices: aliens the second activity begins with a traditional lecture, something the trainees are too inexperienced to recognize as counter to street law’s core values. fortunately, this charade continues for only a few moments until the facilitator is interrupted by a ringing phone. the facilitator informs the group in a dramatic fashion that she has received information that the planet has been invaded by aliens (either in present day or at some point in the future). she tells everyone that while the aliens are friendly enough, they have decided that we have too many rights. in light of the aliens’ overwhelming firepower and our desire to live in peace, we decide to accommodate the aliens’ request that we pare down our rights.   the facilitator splits the trainees into groups of four to five. each group is given 15 slips of paper, one for each of 15 rights provided for under the host country’s constitution. see appendix iii. the trainees are then asked to choose, as a group, four rights they are willing to give up to the aliens. the facilitator physically collects the four rights each group has decided to surrender. without discussion, the trainees are then informed that the aliens are still unsatisfied and that the aliens want each group to give up four more rights from their remaining eleven. the facilitator supports the activity with a creative narrative for human compliance with the alien demands-and severe consequences for non-compliance. this process is repeated until each group has only three rights remaining. the facilitator then asks a representative from each group to come forward and record their group’s three remaining rights on a chart. each representative is given 60-90 seconds each to tell the entire group which rights they have chosen and why they have chosen them. the facilitator then recognizes the disagreements between each group and instructs the representatives that they must come to a new, shared agreement under which the entire group chooses to preserve the same three rights. no instructions are given as to how the representatives must make this decision. group members who are not directly involved in the process are prompted to watch the proceedings and make observations around group, gender, and personality dynamics. when the representatives eventually do wade through the bounded anarchy, occasional shouting, and different decision-making efforts to reach an agreement (or fail to reach an agreement in the allotted time, as is sometimes the case), the agreement and the underlying reasons are shared publicly. the facilitator then leads a debrief of the entire exercise from both the participants’ and teacher’s point of view. trainees are asked how they decided on which rights to preserve and, separately, on how they decided to resolve different opinions within their small group. trainees are encouraged to share their reasoning around both decision making processes and to connect this reasoning with their broader understanding of the law and the role it plays in society. key themes we seek to bring out from this exercise are foundational principles of democratic decision-making such as negotiation, listening, persuasion and compromise, and the recognition and valuing of individual voice within group processes. the street law training begins building belief, capacity, and community at its outset through modeling. actually engaging in the activities, as opposed to being told how to teach them, leads trainees to believe in the methodology, gives them a greater capacity to employ the methodology, and begins to create a sense of community among the trainees. the friday evening activities are intentionally introductory in nature-we hope that students will leave the evening enthusiastic with their interest piqued and that they will be primed for the more in-depth exploration of methodology and pedagogy that comes on saturday. the first modeled activity of the training, ‘who gets the heart?’, begins to build community by randomly placing trainees in groups with other trainees they do not know well, a process that will be repeated several times over the course of the weekend. the trainees complete their negotiation based solely on their own opinions and value sets. trainees are not required to have any knowledge beyond what they already possess, legal and otherwise, nor do they need to know one another. since the activity requires them to interact and share their opinions, the trainees inherently begin to learn about one another through the simulation, building community within their small groups. sharing out responses to the entire group also grows the sense of community among the trainees. the facilitator creates a space where each group’s response is acknowledged and valued by the other groups. posting the responses in a visible, central location signals to the groups that their responses are important and that the space is safe for sharing those responses. the trainees learn more about the group as a whole and begin to understand their peers’ opinions and values. belief and capacity begin to form in the metacognitive debrief of the ‘who gets the heart?’ exercise. the what question allows trainees to see that complex legal concepts can be integrated into a highly engaging and interactive framework, building belief in the methodology. belief is also built by demonstrating to the trainees that they did not just play a game, but they actually began to explore several complicated legal concepts in a rigorous manner. this understanding allows the trainees to begin to trust the methodology and encourages the trainees to deploy that methodology in their own classrooms. another dimension in the what category has to do with the observations and analysis of the trainees’ own experience. trainees typically observe that participating in small groups creates safe space and multiplies the opportunities for participation and comments. they also observe that the trainees, not the facilitators, do the talking and thinking, drawing on their own knowledge, experiences and values. moreover, trainees see the value of starting the training with an invitation to play an active role in the training, which is both novel and invigorating. this helps them see that this activity is a foundation of the trajectory of the training, setting the theme (not yet fully formed) of learner-centeredness. it also helps establish the pattern of the training of doing, describing, analyzing, and reflecting on both substantive and methodological aspects of the activities. finally, without realizing it and without directions from the facilitators, the trainees establish rules of civic discourse to achieve the goals of the lesson, i.e., listening, talking in turns, responding, respecting others’ views, being flexible, compromising or standing firm, backing up opinions with reasons, etc. although not necessary for trainees accustomed to high level academic and civic discourse, this step is essential in classrooms where students are more used to being told how to act and what to think, to give them the experience of “self-government” by governing their own behavior without being told. an additional essential component of the debrief for the trainees is a discussion of how the various skills exercised in the activity may be useful in developing lawyering abilities. since the street law model not only provides public service to the ultimate student constituencies in schools, correctional, or community settings but also develops lawyering skills, the inclusion of this step in the debriefs throughout the training is valuable to building both capacity and belief among the trainees. it also provides a significant justification for street law’s role in the training of lawyers. the how question of the debrief builds the trainees’ capacities for completing the exercise in their own classrooms. the process of deconstructing each exercise and identifying each of the individual parts of the exercise is a critical first step in building the trainees’ confidence in their ability to complete the same exercise in their own classrooms. through the process of deconstructing the debrief conversation itself, trainees learn how to facilitate substantive reflective conversation which tie surface level actions to concrete legal principles.    lastly, the trainees discuss why the exercise was done in the way it was done. the why question builds capacity in the trainees. after only one simulation, the trainees begin to understand intentionality in lesson design, helping to build their capacities as classroom instructors. all of the techniques of the lesson are attached to a learning goal, thus helping the trainees to understand that the outcome was not just happenstance. the trainees’ capacity crystallizes much more quickly when they are allowed to experience the simulation as a student would, rather than simply being told that the simulation will accomplish particular goals. an example of a what, how, why that might develop from the ‘who gets the heart?’ simulation is as follows: q:  what did we do? a:   reviewed a pool of candidates who needed a heart transplant and ranked them according to who we believed should get the one heart available for transplant. we each gave our own opinions on which candidate should get the heart and then came to a consensus as a group as to which patient should ultimately be saved. q:  how did we do it? a:  divided us into groups; provided us with different facts about each candidate and required us to reach a unanimous decision q:  why did we do it that way?  (or, stated differently, why didn’t we do it in a traditional, teacher-centered way?) a:  just telling us about this activity would be much less interesting; we got to meet new people and share our own opinions; role-playing gave me a better understanding of how a person’s feelings or motivations might influence the way she approached a problem; i might not have had the same deep understanding of that concept if i’d just been told about it. with ‘aliens’, the opening and atmosphere is intended to build the trainee community and, in turn, allow the trainees to build that same community with high school students. the facilitator sets the stage with the entertaining alien invasion narrative. the levity of the hypothetical creates a space in which the trainees can discuss and evaluate fundamental rights without feeling as if they must be “right”—or bound to advocate for a certain right because of their own political and cultural persuasions. they may express opinions and test theories freely within the alien invasion simulation. ‘aliens’ is more complex than ‘who gets the heart?’ in both its subject matter and procedure.  this increased complexity builds both belief and capacity.  the trainees’ belief in the methodology’s effectiveness is built by their ability to access more complex concepts.  the trainees build on the skills they gained in the prior simulation.  moreover, the way in which the activity is conducted builds the trainees’ toolboxes of methods for teaching increasingly complex legal concepts to their own students.  trainees experience new methods for grouping, sharing out responses, and unpacking the meaning of an activity. on the surface, the lesson is about rights, but equally or more important is the subtext of the lesson, “to engage the participants in democratic decision-making or deliberation without predetermined rules . . . to practice and then reflect on the deliberative process and the skills involved.”[footnoteref:113] aliens advances the evolution of the trainees as teachers (and their future students in turn as learners) and the development of their skills in civil discourse and self-government introduced in the ‘who gets the heart?’ activity. [113: roe, r.l. (2016) valuing student speech revisited, klinika: czasopismo fundacji uniwersyteckich poradni prawnych, numer specjalny, 21-24 at 22.] the debrief should not only bring out the positive qualities of the trainees’ deliberations but also congratulate and praise them for these qualities. in this way, the activities develop another essential component of the learner-centered approach, learning through positive feedback as compared to so-called “constructive criticism” or being marked wrong. the facilitators look for opportunities to complement trainee responses with statements such as “thank you for your point,” and actually build on or refer to student comments in ensuing discussions. finally, although we do not discuss them in depth here, the value of ice-breaker and team-building activities cannot be underemphasized. over the course of the weekend, we insert a variety of these shorter activities, from friday evening through to sunday afternoon. these activities are critical in building community and encouraging students to engage with one another. they also serve to sustain motivation, allow students to take “brain breaks,” provide for much-needed interludes in an intense learning context, provide significant entertainment value, and allow us to build community within the training room. that we do not discuss them here in detail is not a reflection on our view of their worth but instead a recognition that these activities are often very situation-specific, facilitator-specific, and space-specific.[footnoteref:114] [114: examples of these activities can be found in a variety of civic education curricula, including mikva challenge’s issues to action curriculum, teaching activity guides such as the morningside center’s getting to know you classroom activities program, and team building activity books, such as teamwork and teamplay. mikva challenge. (2012). for more on the value of using icebreakers and brain breaks, see, e.g., romm, c. (2016). icebreakers are terrible. they also, unfortunately, work really well. nymag.com. retrieved from http://nymag.com/scienceofus/2016/09/back-to-school-icebreakers-are-awkward-but-they-work.html. issues to action curriculum. chicago, il: mikva challenge; morningside center for teaching social responsibility. (2008). getting to know you: classroom activities for starting off the school year. new york, ny: morningside center. retrieved from: http://www.morningsidecenter.org/teachable-moment/lessons/getting-know-you-classroom-activities-starting-school-year; thiagarajan, s. & parker, g. (1999). teamwork and teamplay. san francisco, ca: jossey-bass.] b) saturday morning 1) sharing stories and values: story of self the first session on saturday morning is an opportunity to set the stage for the weekend ahead. after plunging into the experiential learning on friday evening, we now pause to introduce ourselves, set forth our objectives for the weekend, and continue to build community in the room. the facilitators each share their beliefs and passion for street law by telling a “story of self.” each facilitator shares personal photographs about their own background and explains why street law is personally important. one facilitator shared what she called her ‘light bulb moment’ when she understood what it meant to her to do street law and to be able to use her legal education to help others gain access to justice. following the facilitator sharing, the trainees, who are grouped at tables of four to five, are asked to share a photograph from their phone which signifies “home.” the trainees are then asked to use their photos to share their own short “story of self” with their table groups. as the facilitators explore how street law’s methods and approach to learning differ from traditional teacher-driven instruction, we ask that the trainees maintain an open mind and we invite them to consider the pros and cons of this approach over the course of the weekend. the facilitators then outline the trajectory of the weekend and are explicit about the final project: each pair of trainees will design and lead a short lesson on sunday afternoon. we assure the trainees that we will provide them with the structure and framing while helping them to uncover their own teaching creativity before sunday afternoon. foregrounding the ultimate deliverable and being clear about the public and peer nature of this deliverable can cause a ripple of nervous excitement but we believe this serves to heighten trainee interest and commitment from the outset. the last portion of the belief and sharing opening is when we introduce “chart groups.” trainees will work in these groups over the course of the weekend to reflect on and process their learning. in groups of five, the trainees are assigned to one of the blank pieces of chart paper located around the room. on each piece of paper, the trainees will create a chart with three columns and the headings “what,” “how,” and “why.” following each substantive activity, the members of each chart group will convene by their chart and populate their chart with descriptions of the activity we just did, the methodology behind the activity, and the rationale behind the activity. this reflection technique was modeled for the groups on friday night and they are tasked with completing their charts for the morning’s activity before the first break. trainees will return to their same chart groups repeatedly throughout the weekend, including for a cumulative listing of their “top 10 teaching tips,” a group-specific collection of tips and observations that the groups’ members have acquired over the course of the training. each group will also post their chart sheets on the wall and subsequently share out these tips to the whole group through a spokesperson. the honest and open approach modeled in the ‘belief and sharing’ session by facilitators works effectively to officially welcome the trainees and to begin the process of trainees introducing themselves to one another. this activity begins the process of building trust and community within the trainee group and between the trainees and facilitators. the facilitators’ sharing of their own journeys and belief in the methodology sets the stage for trainees’ formation of belief and creates a common sense of purpose. the early sharing helps encourage an early sense of community and sets the tone for the workshop while also laying the groundwork for the entire program. for example, as irish and scottish trainees (and their future students) can often be more guarded and slower to share their personal beliefs and emotions, especially in new group settings, the lead from the us facilitators can help inject new street law cultural norms into the weekend and the training process. the importance of this exercise and the motivational, inspiring lead of the us facilitators cannot be underestimated, especially as a tool to overcome any initial cynicism or defensiveness about the methodology. this opening exercise gives the irish and scottish trainees permission to ‘disarm’ themselves and embrace the positivity and optimism that will be critical in establishing community for the weekend and beyond. 2) adding analytical reasoning: should it be a crime? the facilitator arranges the trainees in groups of four and provides the groups a sheet with the following instructions “you are the leading committee of a new country. you have been tasked with creating the criminal law of the country. read each situation and decide whether each item should be a crime.” there are 12 situations to be decided upon, including, ‘robert pushes crack cocaine and uses the proceeds to support his mother, who is on social welfare’ and ‘melissa refuses to wear a helmet while riding a motorcycle.’ see appendix iv. after the trainees decide which acts should be considered a crime (not what is a crime), the trainees rank the crimes in order of gravity. throughout the activity, the trainees are discussing, explaining and analyzing what factors make an act into a crime, whether different justifications excuse acts, how the costs to society and/or the harm to different individuals might impact the severity of the act, and their own personal views on issues such as marijuana legalization and prostitution. thereafter, the facilitator draws a chart on the board and records the responses and ranking of the various groups. the facilitator then leads a discussion around different trainee responses and the direction of conflict. trainee responses are organized into a t chart of factors that are “criminal” or “not criminal,” making efforts to record the trainee comments as faithfully as possible and with the facilitators serving only to organize and record trainee responses. the closing activity asks trainees to draft their own one sentence definition of what should be a crime, following the prompt “a crime is . . .” and then, applying their own definition, to look back at the descriptions of the acts to determine whether their definition would include all of the acts the group considered crimes, while excluding those which the group did not consider crimes. ‘should it be a crime?’ is a valuable component of the street law trajectory because of how it shapes the way young people think about the law. many young people experience the law only as something that happens to them. this activity prompts them to think about the law not as something that controls them, but as something they can have control over. through the discussion and debate process, the trainees gain firsthand experience with how different people can examine the same fact pattern and have drastically different opinions depending on their own moral, political, and socioeconomic orientations and evaluation of different factors. the facilitators’ role in inviting and respecting student comments and opinions during this process, often by writing them on the board, is absolutely critical in the formation of a group culture where participants feel valued and feel comfortable sharing their thoughts. the use of nuanced hypotheticals forces the trainees to consider their own feelings around the myriad different factors that influence whether something should be a crime and what the corresponding punishment should be. trainees examine complicated criminal law concepts such as motive, mitigating circumstances, justification, intent, and nature of harm, all while vigorously discussing entertaining hypotheticals. when the trainees draft their own version of what should be a crime, they shift into the role of legislators and are asked to consider what is best for society and the general good. this sense of agency and relevance that street law helps create is central to building belief in the power of street law to impact young people’s interactions with the law. applying the law reinforces this agency by taking the trainees’ new definitions seriously and applying them to new situations. an example of how trainees’ prior knowledge and different interpretations of these hypotheticals bears on their thinking and reasoning skills emerges during their consideration of the statement “lily approaches a man for purposes of prostitution.” trainees differ in whether they believe the act of selling sex ought to be a crime, the role of consent, and to what extent people have freedom to make decisions around their bodily integrity. but the variations don’t stop there-trainees can also explore whether the statement is intended to cast lily or the man as the prostitute. this can evolve into a discussion around gender dynamics and the importance of which actor initiated the potentially illegal exchange. in this exercise, as in others throughout the weekend, trainees progress from a fundamental understanding of the activity and concepts into the application of more complex, higher-order thinking skills such as analysis, evaluation and creation. this structure is intentional as street law activities seek to be both accessible and also prompts for the practice and development of higher-order thinking skills. educational theorists typically present this connection between the cognitive complexity and specificity required to accomplish a learning objective through the use of a taxonomy, the most popular of which remains bloom’s taxonomy.[footnoteref:115] in the next session, trainees will develop their own taxonomy and be introduced to bloom’s model. [115: bloom’s taxonomy refers to a hierarchical framework for organizing student learning objectives into different levels of complexity and specificity, moving from a base of knowledge and memorization through to higher-order thinking skills such as evaluation and creation. the concept was first set forth in a 1956 volume edited by benjamin bloom, taxonomy of educational objectives, and while the model has since benefitted from new research into educational theory and psychology, bloom’s taxonomy remains a core instructional tool for designing and executing lessons that promote higher order thinking skills. engelhart, m., hill, w., furst, e., & krathwohl, d. (1956). taxonomy of educational objectives, handbook i: cognitive domain. b.s. bloom (ed.). new york, ny: longmans, green and co. for more on the evolution of bloom’s taxonomy, see marzano, r., & kendall, j. (2007). the new taxonomy of educational objectives. thousand oaks, ca: corwin press.] pedagogy: lesson design, lesson planning and lesson execution the goal of this session is to help students understand some of the sound educational theory that should inform their lessons as well as the structure for writing a lesson plan. the facilitators begin by asking student groups to draft a list of the different verbs a teacher can ask her students to perform in the process of thinking and learning. trainees can generate a list of 50-60 words with little prompting, running the gamut from ‘grok’ through to ‘ruminate’ and everything in between. during the subsequent comparison of student lists, the facilitator prompts the students to identify differences among the verbs. trainees are then asked to draw a pyramid of verbs, with the simplest and least cognitively demanding verbs at the base of the pyramid and the more complex verbs at the top. only at the end of this session does the facilitator introduce the concept of bloom’s taxonomy and suggest the importance of intentionally differentiating objectives and means of attaining them while aiming to maximize higher level thinking assignments. an appreciation of bloom’s taxonomy is an important building block for the lesson planning and creation activities that follow later on. facilitators next place the trainees in a hypothetical ‘education emergency’your co-teacher just called in sick and you need to teach his lesson; what information do you need to know? trainees quickly realize that in addition to the logistical details around the school and number of students, the replacement teacher needs to know the objective for the day’s lesson, the materials needed, the procedure and activities, and a method of assessment to determine whether and what the students learned during the day’s lesson. as the facilitator records trainees’ answers on the chart paper, the trainees quickly grasp that they have constructed their own lesson plan template. before they can break for lunch, trainees are required to work in groups and write the lesson plan for the ‘should it be a crime?’ activity that they just completed. while trainees are later provided with access to the original lesson plan (and all other materials used throughout the training), the process of drafting their own lesson plans usually makes the original ones unnecessary. the lesson planning exercise builds capacity in the trainees by drawing on education theory and reinforcing how the activities are not only fun, but grounded in solid educational theory. street law encourages the trainees to think as educators, to design learner-centered lessons, and to ‘think about what you want your students to take out of this.’ the lesson planning session helps build concrete skills that will increase trainee competence in the classroom including-instructional moves such as the use of “chunking” a lesson into 10 to 15 minutes sections, moving up and down bloom’s taxonomy while striving towards the higher level thinking, and the foresight required to prepare all materials and student groups while also thinking about assessment and evaluation instruments. trainees learn, for example, about the important predictive connection between the task assigned to their students and the performance their students will deliver. a good lesson should ensure that the students first have a strong grounding in the relevant knowledge and theories and then a task that requires the students to apply this knowledge in a way that requires higher-order thinking skills such as synthesis and evaluation. the trainees’ assessment of what their students learned during the lesson, whether demonstrated through a written artifact or oral presentation, should then focus not merely on whether the students memorized certain facts but on the skills the students used in applying that knowledge to new situations or fact patterns. by providing trainees with the fundamental skills and the tools to plan an effective lesson, the facilitators are also equipping the trainees with the template that helps them sequence their engaging and interactive activities in a logical fashion to support effective classroom management, often one of the trickiest hurdles for young teachers. the style of facilitation is energetic and dynamic, helping to grow community and modeling ways to maximize instructional capacity. this “quick fire” style using a strong voice and moving around the room keeps the pace up, engages participants, and is an effective way of modeling the street law approach. by using a continuous loop of reinforcing the learning, considering different hypotheticals, asking trainees questions, and being responsive to trainees’ comments and questions, the facilitators help the trainees review earlier sessions, process the ongoing activity, and locate the present learning in the broader street law trajectory. the use of chart groups and collective reflection helps build community and also ensures that the trainees are internalizing and memorializing their learning and key takeaways. the training is modeling the “i do, we do, now you do” approach to learning through cycles of doing, observing, and reflecting. throughout the weekend, the trainees work in a number of different groups and in several different configurations, from whole group to small group and even individual reflection. trainees begin the weekend sitting at pre-arranged tables based simply on how they filter into the room and where they choose to sit. we intentionally let trainees stay in the comfort zones of these groups for the first activity—but the first one only. the only group that remains constant throughout the weekend is the chart group, discussed above as the primary way trainees reflect and externalize their learning after each session. at other times, usually during large group sessions with quick snippets of collaborative work, we employ simple techniques such as the “pair and share” or “elbow partner” for trainees to turn and share with one person located very close to them. when we are dividing the trainees into larger groups for activities such as ‘aliens’ or mock trial, we make the group selection entertaining and varied. for example, we might ask trainees to silently order themselves by birthday (month and day only!) and then to then count off by four or we might provide them each with sticky notes in different categories and have them find a group of people “like” them. these groups can include irish folk heroines, scottish rugby players, irish crisp flavors, scottish poets, us states, american football teams, and more. mixing up the groups is a useful method to constantly refresh group dynamics, to ensure that all trainees get a chance to contribute, and to help make the important personal connections that will build a sense of community. c) saturday afternoon 0. inviting student questions: morton, syed, and mock trial after lunch, the trainees divide into three groups, each group participating in a different stream to facilitate the modeling of distinct ninety minute lessons. based on student interest and a desire to offer trainees proven high quality lessons and support for the culminating mock trial activity, we offered three streams: 1) the michael morton story; 2) adnan syed and the serial podcast; and 3) how to teach mock trial and advocacy skills. morton and syed are inquiry-based lessons based on factual murder cases which have proved an effective method of inspiring curiosity and engagement in the classroom. morton the morton lesson begins by asking trainees to help solve a murder by providing trainees access to the same evidence investigators used in the original murder investigation.[footnoteref:116] the “twist”—that the case relates to a man who was falsely accused is only revealed towards the conclusion of the lesson. prior to this, students assume the role of investigators and work in small groups attempting to establish if michael (the murder victim’s husband) is the perpetrator. [116: arthurs, s. dead bodies and live minds: how investigating a real murder can inspire curiosity in the high school classroom. social education 79(5), 250-255.] trainees use a graphic organizer to help evaluate the evidence gathered by the investigators. for each of the approximately 20 pieces of evidence, trainees discuss its significance and then assign each piece of evidence to one of three columns indicating whether the evidence points to a) michael b) someone else or c) is irrelevant. in a fourth column they briefly explain “why.” trainees then work in pairs as members of the police department’s public relations team and communicate their conclusion about whether michael should be arrested via a tweet. ultimately, the story of michael morton’s incarceration and subsequent exoneration is revealed as the facilitator uses a slide presentation to lead a discussion around the crucial pieces of evidence reviewed by the group but not shared with the defense lawyers at the time of the investigation. this challenges students to reconsider their previous conclusions and facilitates further discussions on prosecutorial misconduct and other common errors in wrongful convictions, the innocence project movement, the death penalty, and what flawed justice means for the victims in this case and crimes generally. syed similarly the syed lesson uses a variety of interactive teaching strategies including student role playing in taking a critical look at the investigation of the real murder case that was the subject of the popular podcast serial.[footnoteref:117] the trainees are initially told that they have been accused of a crime and then asked to account for their whereabouts during three different time periods. they are then paired with another trainee and the trainees take turns interrogating one another about their alibis or lack thereof. as the interrogation is completed, trainees make observations about the other’s perceived truthfulness. trainees share out what words they thing indicate truthfulness or lying. trainees then listen to syed’s account of where he was during the murder in question. trainees similarly analyze syed’s language in order to determine whether they believe his alibi story. [117: serial: season one. (n.d.). retrieved april 01, 2016, from https://serialpodcast.org/. undisclosed podcast. (n.d.). retrieved april 01, 2016, from http://undisclosed-podcast.com/.] rainees are then asked to continue the investigation of the murder through another alibi witness and a police photo of the victim’s car. the trainees have access to source documents and actual evidence from the case in order to draw their conclusions. the demonstration lesson is a stand-alone lesson, but the trainees are given access to an entire unit based upon the serial podcast. that unit includes a complete investigation and evaluation of the case against syed and syed’s attorney’s performance. the unit culminates in an oral argument regarding syed’s access to effective counsel in his original trial. how to teach mock trials mock trials are an essential component of the street law curriculum and approach. the spring semester of the georgetown street law program is devoted primarily to preparing high school students for participation in the annual mock trial tournament using a complex mock trial problem.[footnoteref:118] irish street law classes often culminate in an abbreviated mock trial problem. the mock trial stream gives trainees a framework for teaching a mock trial module within their own classes. this stream is different than the informal mini-mock trial that is built into the weekend training; the focus here is not on completing a trial itself, but understanding the topics that one would need to cover when teaching trial advocacy skills. we showcase a number of different learner-centered techniques that trainees can use over the course of their module. [118: pinder, k. (1998) street law: twenty-five years and counting. journal of legal education, 27(211-233). a description of the mock trial process and a typical problem is found on pp. 220-225. an example of the 2016 georgetown mock trial problem can be found at http://www.law.georgetown.edu/academics/academic-programs/clinical-programs/our-clinics/dc-street-law-program/education_materials.cfm.] we start by identifying the key players in a trial—plaintiff (or prosecution), respondent (or defendant), attorneys, jurors, judges, and bailiff—and the major components of a trial. this includes the opening and closing statements, direct and cross examinations, and any motions that will be made. students then learn the basics of direct examination through a hands-on lesson where two students (student 1 and student 2) sit at separate tables facing away from one another. each table has an identical set of colored wooden blocks of different shapes. student 1 is told to build some type of structure, which student 2 cannot see, using all the blocks. a third student (student 3) stands between the two tables. student 3 must be able to see the structure that student 1 built and the blocks in front of student 2. when student 1 finishes her structure, student 3 asks student 1 to describe their structure using only open ended questions. examples include: “what block is on the bottom?” “what is the shape of the next block?” student 3 is able to influence student 2’s construction through student3’s clarifying questions to student 1. eventually, student 2 will create a structure based on the answers student 1 gives in response to student 3’s questions. after student 2 completes his structure, we will debrief the activity by discussing the types of questions student 3 asked student 1 in order for student 2 to be able to replicate student 1’s structure and the strategy the students used. the observing students may also suggest questions they would have asked or alternative strategies. the goal is to build trainees’ skills for direct examination. the focus of the discussion is how student 3’s questions allow student 1 to tell a story of his structure. next, we introduce the three theories or approached about how to prepare for a mock trial—cyclone, couch potato, and mock trial madness. for this section of the training, we use a highly simplified and abridged mock trial problem that can be examined and understood in the time allotted. the ‘cyclone’ method of teaching mock trial is an approach where students move through a trial packet in a sequential fashion, beginning with the stipulated statement of facts and then progressing through witness statements. the teacher discusses each new witness statement in light of the seminal statement of facts and asks trainees to compare and contrast each witness’s statement as the class progresses. trainees also experience how the teacher will strategically select trial practice skills to build into the lessons to assist the trainees in learning the facts, while at the same time, teaching the trainees the skills they need to conduct the trial. trainees are shown how the ‘cyclone’ grows each week as trainees move through an educational rotation that includes new facts, skills, and practice. by the time trainees complete their review of the mock trial packet, they have access to all the facts and skills they will need to conduct the mock trial. the ‘couch potato’ approach to mock trial focuses on specific moments or incidents from the mock trial problem. trainees first read the stipulated facts and create a chronological timeline of all relevant events. trainees next identify the specific moment or event they want to focus on and then examine each witness statement for information and perspectives on what happened during this moment. after looking at and analyzing a single episode through the perspective of all witnesses, trainees will move to the evidence, case law, and statutes to see what materials are relevant to the specific episode. moving through each piece of evidence, case law, and statutes, the trainees will then be able to access all accounts and information relevant to this particular episode and consider the interplay between this episode and the broader claims. through this ‘couch potato’ approach, the trainees learn how to prepare their students through major episodes that integrates all relevant components of the trial as they move down the timeline in chronological order. when they reach the end of the timeline, the trainees will have reviewed all aspects of the trial packet, giving their students a complete view of all issues and how they fit together. ‘couch potato’ teaches the skills trainees need to engage with the mock trial problem by incorporating trial skills into each step of the learning process. during every episode studied, the teacher will incorporate different trial skills into the exploration of the facts, evidence, case law, and statutes. as the trainees move through the timeline, their trial skills will build on each other so that at the end of the time line the trainees will not only have a complete understanding of the facts, relevant pieces of evidence, and substantive issues in the trial, but also a full range of trial skills. the ‘mock madness’ approach prioritizes developing trainees’ general mock trial skills before digging into the particular problem and facts of the formal case. trainees are presented with a number of increasingly complex mini-mock trials to help build their mock trial skills before engaging with the actual mock trial packet the trainee plans to use for the mock trial module. before moving from one mini-mock trial to the next, more complex trial, trainees work in small groups to demonstrate their comprehension and competency of the skills learned in the shorter trial. an example of the scaffolding approach of ‘mock madness’ would ask trainees to rotate through the roles of prosecutors/plaintiffs in an early mini-mock trial, as both prosecutors and witnesses in a second mini-mock trial, and then as prosecutors, witnesses, and defense attorneys in a third mini-mock trial. trainees discuss how learners move through each mini-mock trial, the fact patterns, evidence, and legal issues become more complex. once trainees have demonstrated their mastery of the critical mock trial skills through in-class role plays and discussion, the actual mock trial packet is introduced and trainees have the tools to learn, analyze, and develop their roles within the unique facts and case law of that trial. during this session, trainees are first provided with an overview of each of these three approaches to teaching about mock trial, similar to the explanation above. trainees then work in small groups with each group assigned one of the three different mock trial teaching approaches and supporting materials. the session concludes with a large group debrief session around the merits and limitations of each approach and how trainees might adapt or incorporate these approaches into their own classrooms. pedagogy: how we learn returning to the whole group, the facilitator presents a short slideshow entitled ‘how we learn.’ these slides reference “3 shapes and 2 graphs to know,” with each of these shapes and graphs introducing a key concept of constructivist learning methodology. this presentation shares the theory behind the street law teaching model and reinforces the strong pedagogical and methodological underpinnings of this approach. evidence of solid education research is offered as proof that these techniques work and have meaningful effects on retention levels, as well as to emphasize the importance of teacher impact, the need to appropriately challenge students, and the importance of connecting with your students to promote classroom engagement.[footnoteref:119] [119: see, e.g., the higher education academy. (2010). student engagement literature review. york: vicki trowler.] a chart group session that follows “how we learn” asks groups to list their specific collection of tips and observations acquired over the course of the training group’s members. shared out cumulatively, the repetition of key teaching skills by all groups equips trainees with a set of simple techniques to focus on for their first class (and usually a fair amount of laughter as trainees translate pedagogy into their own terms; one group summarized the need to vary and group classroom activities as “chunk it up,” for example). the trainees also continue to learn the useful techniques modeled by the facilitators which can be mirrored in the future. this provides the trainees with a collective confidence and reassurance ahead of the commencement of their teaching placement. pedagogy: street law in ireland and scotland the street law programs in ireland and scotland seek to move the trainees from participants in lessons and activities created by the facilitation team to designers and executors of lessons that will work best in irish and scottish schools. these sessions begin with the importance of connecting with your students and their interests through an appealing topic. the host country facilitators select a current issue of legal debate and local interest (in 2015, for example, we selected the syrian refugee crisis) in advance of the orientation weekend. the facilitators then prepare a number of resources that could be used as prompts or hooks into that lesson. our examples included a video from youtube, several photographs, an editorial cartoon, and a newspaper report. trainees are placed in groups of five and given fifteen minutes to design an engaging law-related lesson around the resource that was distributed to them. each group then shares their idea with the larger group. this activity brings the local expertise and perspective of the trainees to bear on one topic and demonstrates how, within the space of thirty minutes, a focused group can create multiple different engaging and interactive lessons about the same topic. pedagogy: trainee panel a benefit to operating the training workshops for multiple years in the same location is the ability to draw on previous trainees who have now spent time teaching in classrooms. thus, a key component of the training weekend (after the first one) was the return of four volunteers from the previous year’s program for the street law veteran panel. these students briefly described their own experience of the program and then opened the floor to questions from the trainees. if not asked, the facilitators supplement questions from the floor with questions focused on the most effective way to build community in the classroom or the piece of advice the veterans wish they had know beforehand. the trainee panels, and the growing cohort of street law trainee alumni, help foster community far beyond the orientation weekend. in both ireland and scotland, many of the trainees continue to support street law even as they embark on their professional careers. this can include returning to the law society for street law celebrations, mentoring the newer trainees, and even successfully advocating to have street law programs formally recognized as part of their law firm’s internship programs. several trainees have written blogs discussing their experience during the street law program and encouraging other trainees to partake.[footnoteref:120] [120: see, e.g., https://pashanky.wordpress.com/2017/01/16/the-next-stage-of-street-law/; http://www.lawscot.org.uk/education-and-careers/schools/street-law/street-law-trainers/; and http://www.lawscot.org.uk/news/2016/09/street-law-opening-doors-that-should-not-be-closed/.] culminating activity: practice teaching preparation the trainees know that they will be leading a brief lesson on sunday afternoon. in this concluding session on saturday, the facilitator explains the format of the practice teaching session. trainees will work in pairs and all teaching pairs are required to teach a unique twenty minute lesson to a small group of their peers. trainees are encouraged to use any of the interactive methods modeled or discussed during the training weekend but they are also free to come up with their own interactive methods. the day concludes with trainees working informally with their teaching partners to develop their lesson plans. facilitators (and sometimes even the veteran trainees) circulate among the trainees and help them design their lesson plan and activities. community is at the heart of street law. the use of group work in the afternoon’s activities helps build community in the trainees, much as it will later build community among the high school students. community develops in the trainees much as it would in the high school students through the discussion and interaction that group work facilitates. this first-hand experience of the positive outcomes promoted through the use of different modalities completes a change in our trainees. their original skepticism regarding the value of group work is replaced with a commitment and competency to use these techniques in their practice. in a demonstration of inter-cohort community and belief in the street law approach, the veteran trainees voluntarily remained to assist trainee groups in the design process. despite their inexperience in the classroom, trainees recognize the power of a well-designed lesson that can ignite the interest of students. further reassurance and belief is drawn from the positive experiences communicated by their peers from last year’s cohort. teaching capacity is developed in each session. in the modeled lessons the trainees pick up the strategies use which they are encouraged to mirror. teaching techniques are reinforced in the chart group session through the repetition of key teaching tips by all the chart groups. the use of three different learning streams provides an additional opportunity to boost the objectives of building belief, community and capacity post orientation. it encourages post-weekend peer-to-peer sharing wherein each trainee can share the lesson they experienced with their peers. trainees acknowledge their inexperience but understand that a well-designed lesson plan drafted in the principle of “talk less, teach more” can help create important connections in the classroom. the trainees’ belief and capacity in their teaching competence is reinforced by their exposure to ideas and a series of potential lessons that they can use. importantly, the original lessons designed by each trainee group are then added to a lesson plan bank available to all trainees. in valuing the trainees’ competence and ability to design unique lessons at this early stage, trainees’ confidence that they can teach effectively grows and is reinforced by the veteran trainee panel sharing their successful experiences. e) sunday morning 0. integrating facts and law through advocacy: mini mock trial the mini-mock trial is one of the two capstone elements of the orientation weekend. in 90 minutes we give trainees a tour of the trial process, and model for them how to use the jigsaw grouping technique to divide the trainees into groups and to prepare and conduct simultaneous mock trials. these mini mock trials are based on the informal “small claims court” structure in many jurisdictions where plaintiffs can bring claims for small monetary amounts using informal legal procedures and without a lawyer. in the mini mock trials, trainees gain experience as either plaintiffs, defendants, or judges on how to present, defend, or judge a simple case with common legal claims. the facilitator begins the session with a brief introduction of the topic of the mock trial or, if the students have no previous exposure to trial advocacy, a short introduction to the process of a trial. we ask students questions to activate their prior general knowledge on the subject, like “what is a trial? who are the key players in a trial?” and “what happens in a trial?” in order to piece together the procedural components of a trial. the facilitator then introduces the substantive topic of the mini-mock trial through an immersion activity that invites students to consider a key piece of evidence in the trial. past trials have centered around a key piece of visual evidence such as a tattoo or youtube video or around a piece of audio evidence such as a hip hop song. trainees work through a “see, think, wonder” handout as they consider this initial evidence prompt. see appendix v. this handout asks trainees to write down “what they see” when they look at the piece of evidence, to elaborate on these observations through the “what they think” section, and then to use these insights to complete the “what they wonder” portion. we use this analysis as a spring board to prime trainee curiosity, highlight key issues that may arise in the case, and generate key questions that students would like answers to about the facts of the case. trainees then each receive a common mock trial packet.[footnoteref:121] the packet contains a one page summary of the trial with guided questions, witness statements, case summaries, evidence, case analysis sheets, and a verdict sheet. students are given ten minutes to individually read through the one page summary and answer the questions while considering the perspectives of both the plaintiff and defendant. the facilitators then initiate a conversation about the key issues in the case by asking students what facts they learned from the one page summary and how those facts resolved questions from their see/think/wonder handouts. trainees share their opinions around what they think the main issue in the case is, what key facts could resolve this issue, and what legal arguments will be most relevant. [121: these trials are typically simplified versions of the complex mock trial problems developed by georgetown’s program each year for its mock trial tournament and freely available on the street law clinic’s website.] trainees are next split into groups to prepare for the mini-mock trial itself. the key idea is to divide the group in three, with one third of the whole assigned to be plaintiffs, one third as defendants, and one third as judges. these subgroups then read and prepare the problem from the perspective of their given role. then they are again subdivided into triads of one judge, one plaintiff and one defendant to simultaneously argue the cases in groups of three around the room(s). the jigsaw technique we suggest requires two different groupings within the same activity, one based on the role each trainee will play during trial and one based on which trial triad the trainee will join. to accomplish the first group division, the packets are printed in three different colors to assist with dividing the students into their roles as plaintiff, defendant, or judge. for example, if you have thirty students, we would print out ten blue packets, ten green packets, and ten red packets. the students who receive the blue packets would be the plaintiffs, those who receive the green packets would represent the defendants, and those who receive the red packets would be judges. in addition, each set of colored packets should be labeled on the front with a number from one to ten. trainees are given twenty to twenty-five minutes to prepare for the mock trial in their role groups. thus, the blue packets (plaintiffs) would gather in one room while the green packets (defendants) and red packets (judges) would gather in separate rooms. with their group members, the trainees work their way through the case analysis sheets which help scaffold their trial preparation with prompts around the witness statements, case law, and evidence. judges are asked to analyze the components of the case from the perspective of a neutral party and prepare questions for the representatives of each side based on the issues in the case and the case law. after trainees have completed their preparation in the role groups, they regroup based on the number written on the front of their packet. this regrouping should result in ten groups of three that each include one representative for the plaintiff, one representative for the defendant, and one judge. the students are now given fifteen to twenty minutes to conduct their trial. the “judges” are instructed to run the trials and give each representative three minutes to present their side of the case. the representatives will give a short “opening statement” and then introduce evidence and make arguments to support their client using the case law. the judge will ask each representative questions and finally determine the verdict. when the trials conclude, twenty minutes are dedicated to a substantive and procedural debrief of the activity. ten minutes are spent analyzing and discussing the actual activity—we ask the judges what their verdicts were and why some representatives were more persuasive than others based on the arguments that representatives came up with and how they chose to support their arguments. we ask the students how they would change their arguments based on feedback from the judges to better advocate for their clients. the second half of the debrief asks trainees to take a step back from the activity and analyze it from a methodological perspective: what were the teaching and learning methods they experienced, how these were accomplished, why we organized the activity the way we did, and how the different parts of the activity connect to our core themes of belief, capacity, and community. belief in the methodology is interwoven throughout this debrief conversation because it is during this conversation when students will make the connection between the active portions of the mini-mock trial and the deeper lessons about trial process and advocacy we were teaching them. how can students connect what they learned during the introduction, preparation, and actual trial to the trial process? why do we choose to teach about trials this way as opposed to walking students through the components of a trial through a lecture? we build capacity through this conversation as well by connecting the underlying lesson objectives to concrete portions of the mini-mock trial activity. finally, we help to build and strengthen our community through the natural interaction afforded through the two different group work configurations that we use during the activity. additional methodological points that can be surfaced include the virtues of the “see, think, wonder” approach, the value of the opportunity to plan before performance, and the benefits of independent, non-teacher directed experience. f) sunday afternoon 0. culminating activity: planning and teaching practice lessons the culmination of the orientation weekend is the practice teaching session. the goals of the practice teaching sessions for the trainees are to apply their knowledge of learning principles to create and conduct lessons, to build their repertoire of methods, and to “get their feet wet” in the actual teaching of lessons in a supportive environment. the trainees are given complete autonomy to select their topic and are encouraged to select topics that will be relevant and interesting to their future students as well as valuable for the students’ practical knowledge of the law.[footnoteref:122] working in smaller groups of teaching pairs, each pair will teach a twenty-minute lesson to their peers. the trainees in each audience are asked to take on the role of high school students for the purpose of the practice teaching. we also provide all trainees with a rubric to help guide their evaluation of their peers’ practice lessons. the rubric asks participants to evaluate the lesson by identifying how the lesson was learner centered, what legal principles were clearly communicated, and how the teachers helped build community among the group.[footnoteref:123] [122: one way to simultaneously scaffold and differentiate the lessons is to assign each pair to a different method not fully developed in the training, e.g., using a document, opinion poll, chart or graph, cartoon, or newspaper article. that way, the groups share additional tools and approaches. often, these short demo lessons can become foundations for fuller lessons of outstanding quality and put in a shared lesson bank.] [123: an alternative to providing the rubric is to use the debriefs of the demonstration teaching lessons to develop rubrics, which later can be compared to the facilitators’ exemplary rubric.] we split the trainee group into smaller groups of six to ten trainees with one experienced street law facilitator assigned to each group of trainees. the smaller groups sizes allows the exercise to be completed in a reasonable time and helps alleviate any potential stress while also allowing enough time for substantial feedback. the demonstration lessons must occupy twenty minutes of “live teaching time” (meaning, if the trainees’ lessons end before twenty minutes is up, they must think on their feet and fill the time like teachers are required to do in the classroom) and are based on the unique lesson plan prepared the previous day and that morning. a ten-minute debrief follows each twenty minute lesson, totaling around thirty minutes for the combined lesson and debrief of each teaching pair. logistically, this means that a group of eight demonstration teachers will need 2-2 ½ hours to complete the exercise. for thirty two trainees, four facilitators are needed. the teaching pairs of the lesson initiate the review recounting their experience, outlining what they thought went well, what surprised them, and areas they can improve. the rest of the group is all invited to contribute, with comments roughly pegged to the practice teaching rubric. this peer feedback is kept constructive and positive, furthering the idea that there is a group support network in place. we typically focus comments not on the individuals teaching the lesson so much as on the methods of the lesson itself. that is, the focus is not on whether the practice teachers are good or bad or right or wrong, but what were the useful and positive dimensions of the practice lesson, and having done it or seen it, how might the lesson be modified. notably, the facilitator should ideally be doing very little talking during the debrief—the hope is that the trainees will identify and speak to effective teaching practices after their weekend immersion. the practice teaching is a capstone experience that both integrates the learning from the training and prepares the trainees for their actual classroom assignments. it is important to note that after the training, the staff of the law societies will continue to support the development of the trainees in their teaching sites through additional follow up instruction, observations, lesson banks of exemplary lessons, journals, consultations and other means. trainees derive great satisfaction from the practice teaching activity. significantly, they now have taken a lesson from concept through to planning and execution. they gain experience teaching. having achieved this with less than two days of preparation, it boosts confidence in their ability to present legal issues in an interesting way. this is also supported by exposure to the lesson plan ideas taught by others in their group. listening to the thoughtful feedback of others in the group and commencing a process of self-reflection on how they teach further equipped them with the capacity to become better teachers. summary, review and evaluation: closing reflection the weekend concludes with a return to a whole group setting and a quaker style closing reflection. the group is seated in circular formation and the facilitator explains that people are asked to individually reflect on the weekend and share their thoughts with the group by completing the statement “i used to think . . . now i think . . .” nobody is called upon to speak nor compelled to speak but only speak when ready (in our experience upwards of 80% of the participants will eventually comment). the closing reflection is a powerful and emotive conclusion to the weekend; the sense of community is further reaffirmed in the group through the honesty of responses and the willingness of people to share voluntarily. the comments also consolidate much of the learning over the weekend as many of the observations made by trainees praise the street law methodologies, reflect on the sense of community, and express excitement about their coming teaching placements. in demonstrating the power of being able to change perceptions of the law through education, this final activity acts as a powerful launchpad into the school placements. vii. further research this paper seeks to introduce the reader to the concept of street law and its unique legal education methodology, share the research supporting this methodology, and provide practitioners with a step-by-step guide on how to implement a weekend orientation program. these contributions, while valuable, are missing one critical component—proof that our model works. since the initial street law orientation weekends in both ireland and scotland, trainee interest and applications to participate in the street law programmed have more than doubled, with a selection process that now accepts only the most promising candidates. at each law society, the orientation weekends have become staples of the fall offerings and the number of schools seeking to participate has also grown. demand has been so great in scotland that the law society of scotland now offers two training sessions-one in fall and one in winter. in ireland, a number of the street law trainees have sought to continue their volunteering efforts during the later stages of their terms studying at the law society. these markers of success and the positive trainee, teacher, and student feedback have been accompanied by public recognition, including television and newspaper reporting. we recognize, however, that more formal assessment and evaluation are essential aspects of measuring program success and critical to determining whether our program achieves its stated objectives, and gathering feedback on how future efforts can be improved. accordingly, and with the goal of moving beyond anecdotal evidence and trainee enthusiasm, we designed and administered the first quantitative evaluation of the street law orientation weekend during the 2015 trainings in dublin and edinburgh. we implemented a preand post-test model that all trainees completed before the orientation weekend and immediately upon completion of the weekend. the results of this evaluation indicate that the orientation weekend was markedly successful in changing trainee attitudes around their belief in learner-centered education, their capacity to deliver these lessons, and the value of community in the classroom. for reasons of scope, focus, practical considerations around paper length, and to permit a more in-depth consideration and discussion of this evaluation, and the accompanying qualitative and quantitative data and analysis, we present the results in a separate, companion paper to follow shortly. the presentation of these positive results evidencing the change in trainee attitudes and beliefs resulting from the orientation weekend only captures one piece of the puzzle, however. we propose several areas for further research to continue exploring the efficacy and impact of the street law orientation weekend. first, trainee attitudes should be assessed and evaluated at a later time, with sufficient distance and remove from the orientation weekend. this assessment could use the same preand post-test instrument and would ask trainees to evaluate the success of the orientation weekend after having delivered street law lessons on their own in secondary school classrooms. additional areas of study might explore whether and to what extent the street law experience helped develop trainees’ legal skills, professional identities, and commitments to public service. another area for future research would examine the impact of the trainees as teachers in their secondary school placements. evidence of how well the street law methods promote increased student academic achievement, social and emotional wellbeing, and school attachment within the street law classes would be a powerful testimonial to the benefits of street law. quality civic education programs have been shown to develop a host of pro-social outcomes, including students’ critical thinking skills, sense of agency, and educational aspirations.[footnoteref:124] determining to what extent street law also impacts these outcomes could drive demand for increased street law programming. [124: arthurs, s. (2015). street law: creating tomorrow’s citizens today. lewis & clark law review, 19(4), 925-961.] a final, broader area of study would examine how street law programs advance and complement the goals of law societies and public legal bodies. making the law more accessible and understandable through legal education are common goals of national and regional bodies and a primary objective of street law programming. increasing access to the legal profession and encouraging diversity within the law student and legal professional ranks are additional important goals and potential byproducts of street law’s intentional focus on underserved communities. street law also has the potential to affect the general public’s view of the law society, understanding of the work the law society undertakes, and perception of the positive contributions lawyers can make within a society. viii. conclusion the rapid proliferation of street law programs across the globe offers tremendous promise to both members of the legal community and to the ordinary citizens who interact and experience the law in their daily lives. law students and young lawyers delivering street law programs acquire invaluable practical skills and perspective on the law and their role in the legal profession and as members of the broader community. law societies, law schools, and bodies committed to legal education can use street law as an accessible vehicle for promoting understanding of the law, encouraging interest and appreciation for the legal profession, and reshaping and crafting a new narrative around the role of lawyers and law students in promoting access to justice. students and community members who experience street law trainings develop their critical thinking, expressive, and cognitive skills, become familiar with the concepts and theories behind practical legal subjects, and gain new insights into their rights and responsibilities as citizens. of course, a critical precursor to the development of a successful street law program is the training of the young lawyers or law students who will deliver the street law programming to secondary school students and community members. until now, there has been no comprehensive guide for how to build and execute a successful street law training. interested legal education practitioners now have a seminal resource to assist with this process. similarly, there have been no previous efforts to ground the principles and practice of the street law method in established research. this paper accomplishes both of these goals for the first time and offers an invaluable resource to aspiring and committed legal education practitioners, law societies, and universities throughout the world seeking to launch a street law program. in this paper, we first explain the street law methodology and approach. we then discuss how this approach is grounded in the best practices and research around civic engagement, learner-centered education, intensive teacher preparation, and community building. we next provide a detailed step-by-step guide for how to design and implement a successful street law orientation program-whether in one weekend or over a longer period of time.[footnoteref:125] by explaining our activities, identifying how each one fits into the broader street law trajectory and reinforces our core outcomes of building belief, capacity, and community, it is our hope that practitioners take from our work an understanding of what we do during our trainings, how we run each activity, and why we chose and sequenced the activities the way we did. [125: we believe it is fundamental to incorporate the various stages of the trajectory into training for all new street law instructors, either through the weekend format or through an orientation of longer duration, followed by additional seminars throughout the course of the program. this weekend structure is by no means the only recipe for a successful street law training, however. in order for street law trainings to be substantive and meaningful across cultures, each practitioner should adapt the training in a way that is responsive to the local cultural and host institution. the stages in the street law trajectory—valuing student ideas, building student voices, sharing stories and values, adding analytical reasoning, inviting student questions, integrating facts and law through advocacy, and a culminating activity—can be developed through a variety of lessons and activities and over different periods of time. we encourage practitioners to come up with new, culturally appropriate activities that aim to achieve the same goals of laying the groundwork for high level cognitive and expressive learning that we set forth at each stage. ] one of the most encouraging and reinforcing hallmarks of the street law community, from practitioners to participants, is the universal spirit of collaboration and cooperation this experience generates. as facilitators and street law educators, we all believe deeply in the transformative power of street law to make the law more relevant, more accessible, and more understandable. we want to share this approach with as many people as possible and hope that this paper provides a strong grounding in both how to do so and why to do so. a second paper, written to review the quantitative and qualitative data we collected during the trainings in ireland and scotland, will serve as a corollary to this paper. as readers of this second paper will soon see, the data we have collected strongly suggest that our workshop model can be a powerful tool to facilitate the broader dissemination and adoption of street law across the globe. extended practice – teaching and learning in clinic 118 appendix i: who gets the heart? hearts and minds you a member of a committee advising the heart specialists at st. joseph’s hospital on whom to accept as recipients of hearts for transplants. a heart has just become available and there are several candidates to receive it. below is a list, in order from the first to request a heart to last, of the candidates. you must decide by the end of this class, otherwise the chances for the operation’s success will not be great. all candidates are terminally ill and may not survive if they do not receive a new heart soon. 1. maria, a cancer researcher, 55, who other researchers believe may be close to finding a cure for cancer. while the researcher works with a team, she employs 50 people in dc. without her leadership, the research company would fail and all 50 employees would lose their jobs. 2. darryl is a 17-year-old honors student who is the captain of his high school’s mock trial team and one of the best players on his high school basketball team. he used to live in a homeless shelter until he earned a full academic scholarship to georgetown university, where he plans on studying medicine. 3. jose, a minister, 35, is known for inspirational work and public service for the poor. he has close relations with the hospital and agreed to donate $2 million to the hospital if he gets the heart. 4. steve is a 20-year-old model who has been in advertisements for gap, aldo, and h & m. he is active in the community and spends his spare time volunteering at a charity that raises money thousands of dollars for education and medical care for poor children. 5. hillary, an attorney, 28, recently graduated from law school, and is a promising civil rights attorney. she currently works for non-profit organizations that represent indigent (needy) clients that have been wrongfully convicted of a crime. she has heart disease and diabetes and has been told that she needs to eat better and start exercising. appendix ii: who gets the heart? additional facts scenarios · darryl was your best friend growing up. no one on the committee knows that you know darryl. not only did he live in a homeless shelter growing up, he is a cancer survivor. · you suspect that someone in the group knows one of the members on this list and may not have shared this with the group. · you aspire to rise to the top of the hospital leadership team. you learned that jessica is the daughter of the ceo for the hospital. the ceo asked you to help ensure that she gets the heart. · although you are a doctor, you’re real passion is research. you spoke to maria last week and she guaranteed you a position as vice president of her research company if she gets the heart. · john is your brother. no one on the committee know that you are related. you are very close to him and cannot image your life with him. similarly, your kids—ages 2 and 5—love uncle john because he takes care of them on the weekend when you’re at work. you are aware that john is a podiatrist (foot doctor) and believe that some people on the committee believe that john is a heart surgeon. · steve is your ex-husband. no one on the committee knows that you know steve. steve left you alone with two children to pursue his modeling career. he is not paying child support and blowing his paycheck on partying, expensive cars, etc. you know that he has a life insurance policy in your name, and if he dies, you inherent everything. · committee chair: · congratulations! you are the committee chair for the group. as the committee chair you are responsible for managing the committee and delivering a final decision for the committee. you are free to run the decision-making process however you feel fit. however, you—not your colleagues—will be submitting the name of the candidate. appendix iii: aliens aliens lesson plan 1. divide students into small groups of 4-6. give one envelope to each group. each envelope should contain 15 strips of paper, each with a separate right printed on it (see below for the rights). 2. intro: tell students that aliens have taken over our country. thankfully, they’re friendly aliens who want to let us live our lives without interruption. however, they think we have way too many rights. they’ve asked you to meet as a group to eliminate 4 of your rights – the rights that are least important to you. you must come to a decision, and you must be unanimous in that decision. a. allow as much time as there is fruitful discussion – usually 5-10 minutes. b. give the students a 1 minute warning to come to their decision. c. at the end of the time, collect the discarded rights. 3. tell the students that the aliens are very happy with your work, but they still think you have too many rights. have them eliminate 4 more rights and remind them to come to a unanimous decision. a. again, allow 5-10 minutes for students to decide. give 1 minute warning. b. collect discarded rights. 4. tell the students that, once again, the aliens are happy with their work. in fact, the aliens let the students live with their 7 remaining rights for a full year. then, they decided that 7 rights were still too many. they want you to eliminate 4 more rights (again, unanimously), leaving you with your 3 most important rights. a. allow 5 minutes. b. collect discarded rights. 5. ask each group to report their decision. write results on the board. 6. group discussion: a. note which rights were most/least commonly picked. b. what strategies did the groups use to come to their conclusions? c. what were the challenges they faced? d. why did they preserve certain rights and eliminate others? what makes a right “important” to them? freedom of speech freedom of the press freedom of religion right to privacy freedom from unreasonable searches and seizures equal protection under the law right to a lawyer right to assemble peaceably right to bear arms right to vote right to work right to marriage and family right to education right to travel right to life, liberty and due process of law appendix iv: should it be a crime? should it be a crime? you are a member of a committee to recommend changes in the law. read each situation. decide: first, whether or not each item should be a crime, and then, rank those that your group feels should be a crime in order of their seriousness (i.e., 1 for the most serious, then 2, and so on). remember, this is not about what is a crime, but what you and your fellow committee members feel should be a crime. a. robert pushes crack cocaine and uses the proceeds to support his mother, who is on welfare. crime? _____ rank _____ b. katherine is a passenger in a car she knows is stolen, but she did not participate in the theft of the car. crime? _____ rank _____ c. lucy picks a person’s pocket and takes a wallet containing $50. crime? _____ rank _____ d. donald is a used car dealer who turns back the odometer on the cars he sells. crime? _____ rank _____ e. susan is caught with a pound of marijuana. crime? _____ rank _____ f. ted robs a liquor store at gunpoint. crime? _____ rank _____ g. ellen leaves a store with change for a $10 bill after she realizes that she gave the cashier a $5 bill. crime? _____ rank _____ h. lilly approaches a man for purposes of prostitution. crime? _____ rank _____ i. melissa refuses to wear a helmet while riding a motorcycle. crime? _____ rank _____ j. the president of a company knows it pollutes a river with waste from its factory. crime? _____ rank _____ k. marge gets drunk and hits a child while speeding through a school zone. crime? _____ rank _____ l. burt observes his best friend shoplifting but does not turn him in. crime? _____ rank _____ appendix v: see, think, wonder see think wonder 241 220545d_jcle_july 2007 comp clinical legal education in the law university: goals and challenges margaret barry1 introduction calls for reform of legal education in india have focused on preparation and relevance. the route to achieving both has consistently been linked to clinical legal education. in 1999, i heard one of the leaders of legal education in india, dr. madhava menon, discuss his goals for clinical legal education in at the first global alliance for justice education conference in trivandrum.2 i learned at the time that he had been invited to lead a new law school in the country, and he made it clear that clinical legal education would be central to the new law school model that he intended to pursue, a model based on recommendations that grew out of prior assessments of legal education in india.3 under this model, law students would be trained to be productive members of a community of lawyers that had refined the skills needed to develop and implement creative clinical legal education in the law university: goals and challenges 27 1 associate professor of law, columbus school of law, the catholic university of america. professor barry visited nalsar law university as a fulbright senior specialist in august 2005. i thank frank s. bloch (professor of law, vanderbilt university) and clark d. cunningham (w. lee burge professor of law & ethics, georgia state university school of law) for their thoughtful input. i am particularly grateful to amita dhanda (professor, nalsar law university) for encouraging me to write the article and for her feedback. 2 “gaje is a global alliance of persons committed to achieving justice through legal education. clinical education of law students is a key component of justice education, but this organization also works to advance other forms of socially relevant legal education, which includes education of practicing lawyers, judges, nongovernmental organizations and the lay public.” gaje introductory statement, http://www.gaje.org/ (last visited dec.31, 2007). it held its first conference in 1999 in trivandrum, state of kerala, india. 3 “the bar council of india gave a fresh look at legal education at an all india seminar held at bombay in 1977 . . . on the basis of the recommendations of this seminar, a dialogue with the universities teaching law was initiated by the council which eventually, in 1982, resulted in a new 5-year integrated professional programme after 10+2 school education. two important features of the new pattern of legal education which was to come into force from the year 1987-88 are the introduction of a two-year pre-law study consisting of several social science courses, and a six-month intensive compulsory clinical education.” n.r. madhava menon, clinical legal education, chapter 1, clinical legal education: concept and concerns, 20 (1998). dr. menon describes the national law school of india (nlsiu) as the first school developed under this model. see id. at chapter 15, development of clinical teaching at the national law school of india: an experiment in imparting value oriented skills training, 238-263. the importance of clinical legal education has been touted by the bar council of india and various law commissions for decades. id.; krishnan, infra note 18; bloch & prasad, infra note 5, at 172 (discussing in part ii inclusion of clinical legal education in efforts to reform legal education). strategies for addressing the pressing demand for social justice in the country.4 the approach reflected a connection between responsibility for the underserved and goals for clinical legal education in india that dates back to collaboration with academics from the united states in the late 1960’s.5 a series of high-level committees have made it progressively clear that this connection is central both to improving the quality of legal education in india and to making it relevant to the most pressing problems facing the society.6 in 1973, the expert committee on legal aid of the ministry of law and justice recommended introducing clinical legal education with a focus on poverty issues into law schools.7 in 1977, the committee on national juridicare distinguished the legal services approach in the united states that had influenced the earlier recommendations, pointing out that law schools should establish legal aid clinics that prepared students to help achieve the structural changes india needed to distribute the material resources of the country more effectively. this was followed in 1981 by the committee for implementing legal aid schemes’ call for establishment of legal aid clinics as part of its recommendations.8 despite these high-level endorsements, progress towards establishing clinical programs in indian law schools has been modest.9 several barriers account for this result. academics, the legal community and the bar council never seriously embraced the establishment of clinical programs.10 furthermore, the desire to pursue opportunities in the global market made it difficult to keep the focus on legal strategies that would protect the rights and immediate needs of the poor.11 many indian law students and their families, like their counterparts in the united states, want legal careers that are lucrative, and these goals have not been sufficiently connected to the benefits of implementing clinical programs and teaching methods, in either country.12 28 journal of clinical legal education july 2007 4 professor krishnan identifies madhava menon not as the creative force for the new law school model so much as the person with the vision and drive to bring it into being. he described dr. menon as drawing on a range of influences, including the 1964 gajendragadkar committee report and the work of then dehli law professor upendra baxi, who went on to be one of the most prominent legal scholars in india and who currently is on the faculty of the university of warwick (uk). krishnan, infra note 18, at 480-484. 5 frank s. bloch & m.r.k. prasad, institutionalizing a social justice mission for clinical legal education: cross-national currents from india and the united states, 13 clinical l. rev. 165, 168 (2006) (discussing the influence of educational exchanges funded by the ford foundation in the late 1960’s and early 1970’s and the opportunities they provided for american and indian law teachers to shared developments in the law-and-poverty curriculum, including the emerging clinical methodology.). 6 id at 173-175. 7 id at 174 (the committee “observed that students’ encounters with the problems of poverty and exploitation would change their outlook when they became lawyers, and as a result they would not treat clients simply as facts but as living neighbors.”) 8 id at 175. 9 id (discussing the limited response by a few of the law schools). 10 id at 176-78 (listing the lack of practical knowledge and the lack of financial assistance to law schools to meet the expenses of running clinical programs, lack of incentives for faculty such as reduced teaching loads, the fact that the advocates act prohibits full-time law teachers from practicing law, the lack of licensing provisions for law students, and the general sense that legal education in india has been neither meaningful or relevant as the reasons why clinical legal education has not taken root). see also, krishnan infra note 18. 11 for an interesting discussion on the dynamics of the global market, including india’s role, see thomas l. friedman, the world is flat: a brief history of the twentyfirst century (2005). 12 clinics in the united states broach this issue implicitly or explicitly by discussing the importance of the skills learned through clinical courses in developing professional competence. it would be interesting to learn the extent to which such discussions explore the possibilities for pursuing social justice goals in a range of practice settings. as i reflect on such discussions in my teaching, i am the failure of the committee recommendations to yield significant change led to several initiatives. in 1988 and 2000, two successive curriculum development committees sought to improve the overall quality of legal education and make law school curricula more responsive to the pressing needs of india’s poor. neither had much impact. however, in 1994 the ahmadi committee report included in its recommendations the establishment of premier law schools to improve legal education. the report referenced the new national law school of india university in bangalore, which at the time was run by dr. menon, and recommended in the establishment of the new law universities based on that model.13 another significant step was taken in 1997 when the bar council of india directed all law schools to incorporate four practical papers into their curricula. paper i requires instruction in litigation skills; paper ii requires instruction in drafting skills; paper iii requires instruction in ethical and bar-bench relations; and paper iv requires public interest lawyering. it was followed in 2002 by the law commission of india’s report stating that clinical legal education should be compulsory.14 response to these requirements has been modest at best. the reason can be seen in the explanation for why previous efforts at instituting new standards failed: means were not part of the package.15 however, developing a vision for the possibilities of clinical legal education within existing constraints has been the focus of trainings offered in 2007 across the sub-continent.16 in light of the possibilities suggested by these trainings, this article considers how the history of high-level assessment, recommendation, and demand might be pursued in the new, elite law universities. should developing the analytical and practical competencies needed for addressing india’s critical issues of poverty and access to justice indeed be a priority for the law universities? if so, how should it be achieved? my perspective is based, inevitably, on my clinical legal education experience in the united states and, to a lesser extent, on my exposure to nalsar law university (hereinafter “nalsar”), which i refer to as an example of a law university response to the intended reform measures. i begin by discussing clinical legal education and why it is a critical aspect of a lawyer’s professional training. i draw on assessments made of u.s. law schools that are similar to those that the various committees and commissions have made in india. the assessments conclude that law schools should more effectively connect the substantive education they provide to professional practice, and that this connection should include a firm understanding of and commitment to responding effectively to the needs of underserved members of the community. while the approach in india is driven by the particular needs that affect such a rich, diverse, and challenging country, the premise is the same: the preparation of law professionals must effectively be connected to the social justice imperatives of their communities. as paulo freire has clinical legal education in the law university: goals and challenges 29 aware that they have not been as focused and in depth as they could be. one approach might be to invite corporate counsel and partners from major law firms to explore with my clinic students the opportunities for identifying and pursuing the common good that they see or are open to in the context of their practices. 13 bloch & prasad, supra note 5, at 178-79. 14 law commission of india, 184th report (2002) at 95. 15 block & prasad, supra note 5 at 180. 16 five regional trainings were offered in 2007 through the south asian forum of clinical law teachers (safclt) and the menon institute of legal advocacy training (milat). milat is the twoyear old institute chaired by n.r. madhava menon that is devoted to human rights promotion, law and judicial reforms and professional development programs. the goal of the trainings has been to “train about 250 clinical law teachers in the country capable of effectively teaching at least the four practical training papers described by the [bar council of india].” milat announcement, dated november 23, 2007, copy on file with the author. said, “we make the road by walking.”17 this article is intended to explore steps towards implementing the goals for legal education that have been expressed over the years and that could yield significant contributions to india’s future. i. why clinical legal education in india? clinics expose students to the impact that the practice of law has on people. no one should pretend that they are prepared to practice without a sense of this impact and a constructive way to think about it. this perspective has significant implications for the way legal education is approached in india. it is law schools that must foster a contextual understanding of what lawyers should do to meet the needs of the country. this means connecting students with communities and involving them in creative solutions that focus on the common good. the new model for law schools – the law university – grew out of a perceived need to enhance the quality of legal education in india. the universities represent a bold move to reinvent legal education practices. the practices that were found lacking in law schools were overcrowded classrooms, lack of rigor in teaching, lack of attention to socio-economic problems, and a general lack of preparation for professional practice.18 as with other law schools in india, students come to the national law universities straight out of 10+2.19 arguably, these students are too young and their education too narrow to take full advantage of professional training.20 in the united states, law is a post-graduate study; university 30 journal of clinical legal education july 2007 17 myles horton & paulo freire, we make the road by walking: conversations on education and social change (1990). 18 see jayanth k. krishnan, professor kingsfield goes to delhi: american academics, the ford foundation, and the development of legal education in india, 46 am. j. legal hist. 447 (2004). professor krishnan discusses the multiple assessments of indian legal education by the indian government and by american scholars sent by the ford foundation. the article chronicles the observations and frustration that the various ford scholars conveyed, most generally emphasizing the importance of indian leadership in developing a meaningful solution for societal needs and the legal education reforms designed to address them. in truth, professor krishnan’s article served to emphasize my own hesitance in plunging forward with suggestions for implementing the clinical legal education aspects that seemed to be so central to the national law school model. clinical legal education in the united states is a work in progress. the connection to educational goals is not as explicit or as developed as it should be by now. indeed, india has been more explicit in stating the importance of clinical legal education. still, india has not taken the steps towards clinical legal education that its institutional objectives would suggest. the door is open, but the path relatively untraveled. in part, this is due to systemic barriers discussed below, but it is also due to the ongoing need to identify the relevance of various possible clinical offerings to the range of professional obligations indian lawyers will need to meet. as upendra baxi points out, indian lawyers need to focus on the social relevance of law and understand their professional obligation to serve their community meaningfully. id at 483. i also heard professor baxi make a similar point at a lecture at nalsar on august 15, 2005. as many of my law students at nalsar pointed out, they need to understand how socially relevant practice will translate into a profession in which they can earn a decent living. opportunities previously unheard of within india’s borders have become available through globalization. id at 494. the law university has both the challenge and the obligation to help students integrate and prepare to respond to these challenging demands. see also bloch & prasad, supra note 5, at 167-172 (discussing in part i a brief overview of the social justice mission in clinical legal education in india). 19 these students are equivalent in age to american high school graduates. 20 the following curriculum for the first two years developed for the national law university at bangalore indicates how social science classes are integrated: “first trimester sociology i, economics i, legal methods materials & processes, torts i, english and legal language; second trimester economics ii, political science i; history i, contracts i, english & legal language graduates enter law schools to obtain a doctorate in law. however, many other countries follow a pattern similar to india’s, for economic if no other reasons.21 the expense of attending college prior to preparing for professional practice can be prohibitive, particularly when undergraduate study is imposed as a condition precedent. the universities offer a five-year program, the first two years of which include social science and economics courses along with law courses. economics and an expansive view of access to education have led to overcrowding in the professional institutions. the number of students attending law schools in india does not necessarily represent vocation or an expectation of entering the profession; students also enter law school as a matter of opportunity or indecision.22 the national law universities narrowed this pool by raising admissions standards and charging students to attend, setting aside scholarships to assure access to some of the qualified students who could not otherwise matriculate. reflecting some attention to the bar council’s practical paper requirements,23 students are required at nalsar law university to spend time in practice settings in four of their five years.24 the placements have the potential to allow students to interact with the legal community and experience the law in context. however, the placements are apparently student-run projects rather than the product of faculty supervision and educational rigor.25 students organize the placements, clinical legal education in the law university: goals and challenges 31 (continued); third trimester sociology ii, contracts ii, constitutional law i, torts ii, english and legal language (continued); fourth trimester history ii, political science ii, constitutional law ii, family law i; fifth trimester jurisprudence i, constitutional law iii, criminal law i, family law ii; sixth trimester – criminal law ii, administrative law, property law, political science iii.” krishnan, supra note 18, at appendix, 498-499. several of the students i taught at nalsar expressed the concern that they had an insufficient foundation for their professional degree and felt that they could not prepare to be effective in the profession with such a narrow educational base. however, this seemed to express a sense that they were missing something that american students had the benefit of more than a specific lack of foundation for their professional training. 21 see, e.g., frans j. vanistendael, quality control of students and barriers to access in west-european legal education, 43 s. tex. l. rev. 691, 692 (2002) (“with the exception of the u.k. and ireland, conditions for admission to law schools are totally different from those in the united states. first, there is no buffer of college between high school and the start of law school.”); philip f. iya, the legal system and legal education in southern africa: past influences and current challenges, 51 j. legal educ. 355, 360 (2001). 22 even at nalsar law university, a number of law students expressed a detachment with regard to their professional futures that i found surprising. i have encountered a similar perspective while teaching and talking with students at the university of montenegro school of law. many of the students there are not sure that law is a career they want much less have any hope of effectively pursuing. 23 the bar council has required all indian law schools to include the four practical papers in their curricula since 1998. bloch & prasad, supra note 5, at 181, and at 209 (describing the details of the syllabus and mode of evaluation for the four practical papers, or core courses, to be implemented in the law universities). . 24 this is consistent with the model instituted by dr. menon. referring to establishment of the first law university, the national law school at bangalore, professor krishnan noted, “menon institutionalized into the curriculum a mandatory two-month internship that students would need to complete every year during their holiday period. krishnan, supra note 18 at 489. 25 i worked with 57 students who are in their fifth year at nalsar. each of them had externship placements over the years. the placements were organized by the students. a few had extraordinary placements. one had traveled to the hague to intern at the world court, and was thrilled by the opportunity he had to do legal research and writing on interesting cases. another student had interned for an attorney who had worked on interesting cases and included her in the case preparation. the vast majority of students said that their placements were disappointing. they described being placed at desks but given no work or opportunity to observe work, being given tasks completely unrelated to legal practice and having supervisors who had no idea what was expected or what to do with them. one student said, “i got to the office and the judge asked me what i thought i should do. i said i was not sure. he did not interact with the relevant offices and appear for work. the school is not involved in this exchange in any meaningful way other than to register the fact that each placement occurred. beyond these placements, experiential learning is limited at nalsar to moot court and a few classroom simulations.26 how did clinical legal education remain largely undeveloped in this new institution given the goals that supported development of the law universities?27 in part, the necessary emphasis placed on building physical facilities and attracting highly qualified faculties and students provides insight. establishing new institutions in which traditional teachers organize the curriculum and teach the courses is not a prescription for significant curricular change, even though the framework of fewer students and greater resources suggest some opportunity for improvement. lack of experience in clinical teaching, the demand on teaching resources that clinics make and the bar council’s failure to provide institutional support for the clinical legal education espoused contribute to the difficulty realizing desired change. indeed, the bar council sends the message that law teachers are to be disengaged from the practice of law by denying the license to practice it.28 thus, the substantive curricular changes articulated by dr. menon and urged in the many reports appear to be eluding the new institutions,29 though, paradoxically, there 32 journal of clinical legal education july 2007 seem to know what i should do either, so i hung around and did not do much.” several others had similar examples. having students responsible for their externship placements can be empowering and can yield a wide range of opportunities that reflect student interests, but this does not mean that the school should view its role in the process as passive. the placements are an educational requirement, and the school has an interest in assuring that the experiences students have are valuable. 26 when i taught at nalsar law university in 2004, the simulation that i spent nine days teaching was part of a clinic course, one that had been evolving that year and that did not appear to be an established part of the curriculum. prior to my arrival, the students in this course had done a mock criminal trial, but the readings for the course and other preparation for that simulation were not apparent. as far as i could tell, apart from this simulation course, moot court and the placements discussed in the text that follows, there were no other skills or clinical course being taught at the school. 27 even at the national law university at bangalore – the model for institutional reform, see supra note 29, clinical opportunities seem limited to observing court or lok adalat proceedings. it has been hard to get a handle on what is happening at the many law programs in india outside of the law universities. v. m. salgaocar college of law, infra note 30, is one example of what is happening. according to subhram rajkhowa of gauhati university, assam, india, “the law clinics may be categorized under three heads, those under the national law schools, those under the central universities and those under the state universities, the third category being the least structured.” subrhram rajkhowa, globalizing clinical education to protect the world’s health environment, university of maryland school of law, april 11-13, 2007, http://www.law.umaryland .edu/specialty/environment/wardkershaw07/rajkh owa.pdf (last visited dec. 31, 2007). 28 for example, in india, law faculty are not allowed to hold a license to practice law. see, bar council of india rules, part vi, chapter 2, section vii restriction on other employments. (“an advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practise, and shall, on taking up any such employment, intimate the fact to the bar council on whose roll his name appears and shall thereupon cease to practise as an advocate so long as he continues in such employment.”) the reason for such limitation may be to assure that law faculty are focused on teaching instead of suborning their teaching obligations to the demands of legal practice. a similar concern is reflected in the accreditation standards for american law schools. section of legal education and admissions to the bar, american bar association, standards for approval of law schools (2006-7) [hereinafter aba standards], standard 402(b) provides that a full-time faculty member’s primary professional employment must be with the law school and anything outside must not “unduly interfere” with law school responsibilities. 29 dr. menon views clinical experiences as a central element of legal education, promoting social and professional responsibilities within the legal practice – surpassing the mere academic exercises of legal education. menon, supra note 3, at 4-6. clinical education is to encompass active participation by the students, under the careful supervision of the faculty, to learn about the practical applications of legal skills and processes in the context of the political, social and economic is some evidence of progress towards the articulated goals in other law schools.30 since interest in clinical legal education in india was nourished by developments in the united states,31 to what extent is what has been happening in the united states instructive? ii. legal education reform in the united states legal education in the united states has been repeatedly criticized for its failure to adequately prepare students for the practice of law.32 the critique has come in the form of high-level reports,33 judicial commentary34 and numerous law review articles that call for more relevant training.35 clinical legal education in the law university: goals and challenges 33 conditions of their country and society. id. at 10-11. referring to the first of the national law universities, the national law school at bangalore, professor krishnan concluded, “menon had realized his dream – to construct an indian law school that would emphasize pedagogy, analytical rigor, clinical training, and public service.” krishnan, supra note 18, at 493. however, it does not appear that even bangalore has realized the dream with regard to clinical training. 30 v. m. salgaocar college of law legal aid society, which began in 1998, is an example of what can be achieved in india, and is an example of india’s potential as a leader the international clinical legal education movement. it operates thirty-five permanent free legal aid cells throughout the state of goa. each cell consists of a team of two students. the cells are set up and housed in government buildings, schools, and church or temple premises. students carry out awareness campaigns, provide legal advice and pursue remedies such as meeting with the other party, meeting with government officials and providing legal referral services. the students also perform paralegal aid services, such as visiting jails, registering marriages, births, and deaths, obtaining ration cards, and preparing affidavits. they also prepare and file documents that are required for obtaining benefits under various welfare schemes. students also work with faculty members to petition relevant authorities who are obliged under law to remedy the injustice. if relief is not provided, the students work with lawyers to file a petition before the high court. students can argue these cases under special rules that allow any member of the public to present such cases. bloch & prasad, supra note 5 at 203-206. the authors also presented a workshop at the gaje conference in cordoba, argentina in 2006, using examples of two activities legal aid society students and exploring with participants the value including critical assessment of the of the work undertaken by clinical law students and their teachers. report of the 4th gaje conference, at 20, http://www.gaje.org/ (last visited dec. 31, 2007). 31 see krishnan, supra note 18. 32 this is an issue that law schools in the united states have either struggled with or ignored. in the third wave article, my co-authors and i discuss experiments and programs at law schools that have sought to address the need for a broader impact within their curricula. see barry et al., infra note 58, at 32-50. we quote former dean john sexton of new york university as saying that “we must abandon the “coverage” paradigm – that is, we must abandon the notion that there is a certain, fixed body of doctrine which must be covered, and instead use substantive courses as a platform for teaching the range of skills that students should learn.” id. at 49-50. see also, russell engler, the maccrate report turns 10: assessing its impact and identifying gaps we should seek to narrow, 8 clinical l. rev. 109 (2001); roy stuckey et al., best practices for legal education: a vision and a road map (2007) [hereinafter best practices] (for the past several years, the clinical legal education association has sponsored a project to analyze legal education and develop a comprehensive guide for achieving the optimum approach to teaching law. the result is best practices. the publication is a useful resource for any law school committed to evaluation of its approach to legal education.). 33 see stuckey, supra, at 11-37; robert maccrate, legal education and professional development an educational continuum, 1992 a.b.a. sec. legal educ. & admissions to bar 213 [hereinafter maccrate report]; william m. sullivan, anne colby, judith welch wegner, lloyd bond, & lee s. shulman, educating lawyers : preparation for the profession of law (2007) [hereinafter educating lawyers]. 34 see warren e. burger, the special skills of advocacy: are specialized training and certification of advocates essential to our system of justice?, 42 fordham l. rev. 227 (1973); harry t. edwards, the growing disjunction between legal education and the legal profession, 91 mich. l. rev. 34 (1992) 35 see, e.g., educating lawyers, supra note 38; best practices, supra note 32; alan watson, legal education reform: modest suggestions, 51 j. when professor langdell championed the casebook method and the use of socratic dialogue in the early 1900’s, his goal was to establish legal education as an academic discipline.36 that concern still casts a shadow that arguably dissociates legal education from significant aspects of its obligation to develop professional competency.37 this is not to say that langdell’s method, particularly as it has evolved to include problem solving and critical studies, is not important or relevant. it is recognize that more is needed. the concern that too much is asked of law schools if they are expected to expose students to the law both in theory and practice must not be the end of the analysis. theory and practice are intertwined in law, as they should be in any profession. this connection is not fully acknowledged by law schools, and the educational programs have suffered as a result. the carnegie foundation report, educating lawyers: preparation for the profession of law (2007), underscores the need for change in the approach to legal education.38 the report cites the newly published best practices for legal education: a vision and a roadmap, a project of the clinical legal education association that takes an in depth look at all aspects of legal education in the united states and recommends methods for improvement.39 both books discuss the importance of clinical programs and the use of clinical methodology across the curriculum to achieve the necessary integration of substantive law and professional skills and values.40 all accredited law school in the united states have clinical programs. given the growth of clinical programs in law schools in the united states, one might wonder why the statements continue to be made that link their importance to needed improvement. a fundamental problem with the approach to clinical programs, and this is also true of “skills” courses in most u.s. law schools, is that they are viewed as nonessential and/or unrelated to the substantive law courses offered.41 the hard work of integrating experiential 34 journal of clinical legal education july 2007 legal educ. 91 (2001); carrie menkel-meadow, taking problem-solving pedagogy seriously: a response to the attorney general, 49 j. legal educ. 14 (1999). 36 barry et al., infra note 58, at 5-6. 37 one skill is valued: legal analysis. one task is in direct conflict with achieving more: coverage of substantive law. the idea that the skills and values addressed in clinical courses are important aspects of legal education is seen as beyond the scope of what can reasonably be achieved in a substantive law course.. this is true despite the weight of criticism referenced above. this is true because, while the bench and bar claim they want change, hiring is based on performance in the very courses that teach the skill emphasized by law schools. furthermore, entry into the profession is determined by who passes bar examinations, and these examinations essentially ignore professional values and skills other than legal analysis. in sum, the training law schools provide has been roundly criticized, but there is insufficient incentive to change. 38 in their preliminary summary, the authors of educating lawyers make seven specific recommendations: that law schools (1) offer an integrated curriculum; (2) join lawyering, professionalism and legal analysis from the start; (3) make better use of the second and third years of law school; (4) support faculty teaching across the curriculum; (5) design the program so that students and faculty weave together disparate kinds of knowledge and skill; (6) recognize a common purpose in achieving professionalism; and (7) emphasize interdisciplinary learning the report itself emphasizes the need to integrate practical and theoretical learning. see generally educating lawyers, supra note 38. 39 see best practices, supra note 32. 40 best practices also emphasizes the importance of outcome assessment as a means of determining the extent to which approaches to achieving quality legal education are effective. it argues that legal education is unique in its failure to reflect on the effect of its teaching choices. best practices, supra note 32, at 42. it notes that legal educators in great britain have begun to explore outcome assessment methods. id. at 45-46. 41 the emphasis is on teaching a set of required first year courses and other courses that appear on state bar examinations, have traditionally been offered, are favored by members of the faculty, or cover emerging areas of law. the approach is driven by history and evolution, but not necessarily reflection on what is needed to produce thoughtful and education into the curricula has not happened in this profession, raising serious concerns about the quality of professional preparation. what do clinical courses offer that these analyses and critiques of legal education find so important? first of all, the emphasis on clinical programs addressing skills and values that substantive law classes do not reach may suggest that clinical programs fully prepare students to enter the profession as competent practitioners. no such argument is intended. clinical programs do well if they introduce students to the competencies they will need, strategies for building expertise and critical assessment of the lawyer’s role. while the traditional american classroom uses casebooks and the socratic method to expose students to a body of substantive material and develop their ability to analyze the material,42 the range of competencies that a clinical course seeks to develop is broader. they include interviewing, fact investigation, an extensive application of problem solving skills, attorney-client relations, negotiation and other alternative dispute resolution methods, ethical considerations, pre-trial and trial skills. they are taught using methods that include role-playing, simulations, brainstorming, highly interactive discussions, regular indepth feedback, and direct client representation.43 significantly, they instruct by helping students to build on their experiences. second, clinical courses expose students to opportunities to use legal expertise to address issues of social concern, particularly the needs of the poor. regardless of whether students intend to work in public interest law, they need to be aware of their obligations to contribute to their communities and of the special role they are becoming equipped to play in addressing a range of social problems. while the classroom can raise theoretical issues about social justice, access to legal interventions and reform, understanding the problems in terms of access, application, and sufficiency comes from well-supervised work with poor people. thus, these issues are best raised through direct service to disadvantaged clients, either through representation or some other opportunity to work closely with them in order to understand the problems and the attorney’s special ability to provide effective assistance. clinical programs in law schools across the united states have addressed one or both of these goals through experiences that are discussed below. the discussion considers these approaches in relation to what might make sense for the law universities, not as a prescription for what should be the ultimate or ideal approach but rather as a way to begin to think about moving along the path to implementing some of the reforms that have been advocated for so long. clinical legal education in the law university: goals and challenges 35 effective professionals. there is a significant trend away from teaching law courses as though they exist in a theoretical vacuum, unrelated to other substantive law, legal practice and the complexities of the society in which it all finds relevance. however, the priority remains legal analysis and coverage. see, janet weinstein & linda morton, interdisciplinary problem solving courses as a context for nurturing intrinsic values, 13 clinical l. rev. 839, 847 (2007); thomas f. geraghty, legal clinics and the better trained lawyer (redux): a history of clinical education at northwestern, 100 nw. u. l. rev. 231 (2006); roy stuckey, teaching with purpose: defining and achieving desired outcomes in clinical law courses, 13 clinical l. rev. 807 (2007). 42 many law teachers are moving away from the socratic method and/or integrating more problemsolving approaches in their teaching. see e.g. robert j. rhee, the socratic method and the mathematical heuristic of george polya, 81 st. john's l. rev. 881 (2007) (bemoaning the decline in popularity of the socratic method of teaching and suggesting that it would be more attractive if combined with mathematician george pólya’s approach to problem-solving). 43 see best practices, supra note 32 at 165-167. iii. contemplating the path the strong support for clinical legal education in india has resulted in an assumption of its benefits, but it is not clear that law universities have considered how it relates to educational priorities. thus, a necessary step is to assess what aspects of clinical legal education are important and why. insight can be gained from looking at the committee and commission reports, but how should their calls for socially relevant learning experiences and to use students to address india’s mandate to provide legal aid be approached by the universities?44 to avoid critiques leveled against american law schools, one important goal would be to figure out how to integrate values and appropriate skills into the substantive law classes. given india’s commitment to access to legal aid and the percentage of the population living in poverty, social science courses that are currently included in the law university curricula provide an excellent opportunity to help students consider innovative interventions and collaborations through which lawyers can make useful contributions. there is a special danger of sacrificing educational objectives in order to respond in some way to the huge demand for legal services. the idea that law universities should attempt to bridge the chasm between the promise of legal aid to the poor in india and the reality of access is in direct conflict with the educational mission. the goal of the law universities should be to create the space for analysis and creative problem solving, and this cannot effectively happen where the competing goal is coverage of huge caseloads – regardless of how they are structured. the educational benefit of the practice experience is not to simply do but to have the opportunity to learn effective lawyering from the process of doing.45 alternative models of lawyering and dispute resolution are particularly critical for law students in india to explore. formal courts based on british colonial structures have become bogged down to the point of being essentially dysfunctional. students need to consider what the profession’s obligations are with regard to reforming whether, when and how the courts are used. as alternatives to the courts are reinstituted or created of necessity, students need to learn how to assess the extent to which they are fair and advance the common good.46 the following sub-sections consider some experiential learning course structures. my goal is to 36 journal of clinical legal education july 2007 44 article 39a of the 42nd amendment to the indian constitution establishes the right to free legal aid. block & prasad, supra note 5, at 173. the expert committee on legal aid of the ministry of law and justice proposed the use of law students as an inexpensive and enthusiastic resource for providing meaningful legal aid to india’s vast population. id at 174. 45 professor leah wortham put it this way, “[a] clinic within a law school should not let the education objectives of the clinic be swamped by many clients who need service. if all clinic faculty and student time is absorbed by responding to clients, there will be not time and energy to think about what the clinic is trying to teach students and how to teach that well. likewise, it will be difficult to find time to reflect critically on why the law and legal system and society generally may not serve poor people well, to consider alternatives to the current system, and to consider alternative models of lawyering.” leah wortham, aiding clinical education abroad: what can be gained and the learning curve on how to do so effectively, 12 clinical l. rev. 615, 661-62 (2006) (discussing lessons learned from developing clinical legal education programs outside of the united states). 46 for example, lok adalats have been reinstituted as a means of providing access to the courts for the poor, but concerns with this informal approach to justice are not unlike the objections raised with regard to mediation in the united states. for a critique on the lok adalats and the problems to providing access to justice, see marc galanter & jayanth k. krishnan, “bread for the poor”: access to justice and the rights of the needy in india, 55 hastings l.j. 789 (2004). provoke thought about walking the path towards structuring effective clinical programs and to consider their relationship to the rest of the law university curricula. the courses discussed are intended as a base from which to create and innovate. the skills courses should not be considered as alternatives to the clinical experiences but as part of the integrated approach throughout the curriculum to preparing students to address the issues that the clinic courses will pursue. a. externships externships offer students discreet periods of time to devote to lawyering experiences in practice settings outside of the law school. as offered in law schools in the united states, they can provide excellent opportunities for students to apply the theory they have learned in substantive law classes to the challenges of professional practice. while the classroom can endeavor to integrate the two, the practice setting offers a significant, arguably essential dimension. the placements that i observed at nalsar law university reflect the experiential objectives of externships. they occurred in each of the third, fourth, and fifth years of schooling. the students spend two months, november and december, at each placement. during that same period, the university is closed for vacation. as noted above, the students find their own placements for each practice inter-session. there is no contact with the placements by the school. furthermore, no classroom component either prepares the students for what to expect of the placement or to reflect on their experience.47 this is what distinguishes these experiences from most externship courses in the united states. externship courses are expected to have either a classroom component or other student/teacher interaction that provides an opportunity to reflect on the placement experience.48 often, there is direct contact between the faculty member and the placement supervisor. at a minimum, the school communicates expectations regarding the placement experience.49 a model externship program would take advantage of the generous commitment of clinical legal education in the law university: goals and challenges 37 47 see supra note 30. 48 a useful text for teaching an externship clinic is j.p. ogilvy et al., learning from practice: a professional development text for legal externs (west 1998), and a teacher’s manual for the text is also available. the book emphasizes the importance of helping students to assess, optimize and build upon the placement experience. 49 aba standards, supra note 28, standard 305 – study outside the classroom, sets the minimum standards for externship courses at accredited law schools in the united states: (a) a law school may grant credit toward the j.d. degree for courses or a program that permits or requires student participation in studies or activities away from or outside the law school or in a format that does not involve attendance at regularly scheduled class sessions. (b) credit granted shall be commensurate with the time and effort required and the anticipated quality of the educational experience of the student. (c) each student’s academic achievement shall be evaluated by a faculty member. for purposes of standard 305 and its interpretations, the term “faculty member” means a member of the fulltime or part-time faculty. when appropriate a school may use faculty members from other law schools to supervise or assist in the supervision or review of a field placement program. (d) the studies or activities shall be approved in advance and periodically reviewed following the school’s established procedures for approval of the curriculum. (e) a field placement program shall include: (1) a clear statement of the goals and methods, and a demonstrated relationship between those goals and methods to the program in operation; (2) adequate instructional resources, including faculty teaching in and supervising the program who devote the requisite time and attention to satisfy program goals and are sufficiently available to students; (3) a clearly articulated method of evaluating each student’s academic performance involving both a faculty member and the field placement supervisor; time for experiential learning already available in the law university structure and apply requirements for supervision and placement that would help to assure that students are gaining useful exposure and insight. basic structural considerations might include the following: 1. students, in coordination with a supervising faculty member, find their own placements. this would engage students in evaluating placement opportunities while having faculty input with regard to learning opportunities. depending on the need for services and the educational goals, a specific placement or group of placements may be preferable. 2. a faculty member is assigned to the externship program. this assignment would be the most, if not all, of that faculty member’s teaching load. i will refer to this position as “faculty supervisor” below. 3. any placement found by a student is reviewed by the faculty supervisor. the review would involve determining whether the placement is appropriate under the following criteria: a. the placement is primarily involved in the practice of law or law-related activities. that the placement is in the legal department or office of a larger enterprise, such as a nongovernmental organization or business that is not primarily involved in the practice of law, is acceptable. b. the student’s activities primarily involve substantive work directly related to the practice of law. this can include a wide range of work, from litigation to mediation to clerking for judges to transactional practice to legislative and social service advocacy. it could even include journalism, so long as the placement develops skills and insights relevant to professional development as a lawyer. c. the placement supervisor is a lawyer. while there are many things to learn from nonlawyers, the goal should be development of professional skills and perspective. d. the placement supervisor is willing to provide to the faculty supervisor a general outline of the work the student will do during the placement. the faculty supervisor would discuss this outline with the placement supervisor as well as educational goals for the student. a written agreement about the placement should follow that discussion. e. there is an opportunity to understand and address issues affecting the socially or economically disadvantaged, or to address environmental and other important social justice issues. this aspect of the externship experience should be explored in class or meetings with the faculty supervisor. 38 journal of clinical legal education july 2007 (4) a method for selecting, training, evaluating, and communicating with field placement supervisors; (5) periodic on-site visits or their equivalent by a faculty member if the field placement program awards four or more academic credits (or equivalent) for field work in any academic term or if on-site visits or their equivalent are otherwise necessary and appropriate; (6) a requirement that students have successfully completed one academic year of study prior to participation in the field adjacent program; (7) opportunities for student reflection on their field placement experience, through a seminar, regularly scheduled tutorials, or other means of guided reflection. where a student can earn four or more academic credits (or equivalent) in the program for fieldwork, the seminar, tutorial, or other means of guided reflection must be provided contemporaneously. f. student housing accommodation is determined to be satisfactory and safety is considered. this is worth noting in program development since the school has some responsibility for the circumstances that attend students pursuing this aspect of their education, particularly since the students are young and often unaccustomed to being on their own. 4. each student is required to provide to the faculty supervisor an outline of goals for the placement experience. 5. prior to leaving for their externships, the faculty supervisor meets with each year of externship students in several classes to discuss what the placement should mean in their professional education. specifically, the discussions would help students establish goals for their experience, develop tools for reflecting on their experiences, and learn how to seek and receive useful feedback during their externships.50 the discussion should change for each year, with the goal being to develop the expectations and level of reflection for each progressive year’s placement. 6. prior to embarking on the externship placements, the faculty supervisor also meets with students, individually or in small groups, to discuss the placement supervisor’s outline of work in relation to the students’ goals for their placements. students should have a good understanding of goals and expectations prior to leaving for their externship. strategies for dealing with supervisors who do not provide the substantive experience contemplated are also important to cover in these meetings. 7. keeping journals during their placements would encourage students to analyze their placement experiences. these journals can be collected by the faculty supervisor and form part of the externship assessment, or they can simply be used for debriefing discussions in class upon the students’ return. journals expose students to the discipline of thinking deeply about their actions and the actions of others around them. particularly in the externships where rounds and other clinical teaching tools may not be part of the practice experience, they encourage students to take responsibility for analyzing their experiences and learning from them.51 8. at the end of the externship experiences, small group sessions are held with students to discuss the externship experience. students should be prepared to discuss what they did, how it responded to the goals they had set, how their experiences provided opportunities to apply the substantive law they had learned during the preceding semester, poverty issues and potential solutions, and any other relevant reflections. 9. the school keeps a roster of placements that did not work out so that students may avoid them in the future.52 clinical legal education in the law university: goals and challenges 39 50 see best practices supra note 32 at 176-177 (recommending that students learn how to gain the most educational value from feedback provided through experiential courses by being open and attentive to critique; seeking clarification; focusing on specifics in order to improve future performance; seeking a variety of input; synthesizing the feedback provided; and reviewing the input provided). 51 see, j.p. ogilvy, the use of journals in legal education: a tool for reflection, 3 clinical l. rev. 55 (1996)(discussing the benefits of journals as a tool for encouraging students to critically assess their experiences). 52 columbus school of law does this for its externship program. students are asked to provide feedback about placements and placement supervisors. this feedback, both good and bad, is the goal, then, is to provide more structure to the placement opportunities and faculty–guided reflection to the placement experiences, while preserving some of the range of placements and the student initiative that was in evidence at nalsar. b. skills courses. in july 1992, an assessment of what competencies lawyers need to be effective professionals was done at the behest of the american bar association’s council of the section of legal education and admissions to the bar. the task force that conducted the study was chaired by prominent lawyer and past aba president robert maccrate, and the report that was issued has commonly been referred to as the maccrate report.53 central to the report was an analysis of the skills and values essential for competent representation. the skills listed by maccrate were: problem solving; legal analysis and reasoning; legal research; factual investigation; communication; counseling; negotiation; litigation and alternative dispute resolution procedures; organization and management of legal work; and recognizing and resolving ethical dilemmas. the values identified were: provision of competent representation; striving to promote justice, fairness and morality; striving to improve the profession; and professional self-development.54 these skills and values provide a useful outline of a range of competencies that can be used as a reference point for framing a law school curriculum. in fact, this is exactly what the maccrate report urged. the maccrate report had a modest impact on legal education in the united states. it was criticized as being overly broad to the point of being irrelevant to values such as social and economic justice and to the changing roles of the lawyer in a lawyer and client relationship.55 the report’s limitations as well as the differences between india and the united states make uncritical reference to the maccrate analysis risky for several reasons. india is still extracting itself from the ongoing impact of a colonial legal system. it is also combating pervasive poverty exacerbated by religious and caste prejudices. economic development, energy, environmental and infrastructure challenges call for attention in different ways in each country. yet, these issues are primarily a matter of degree. poverty, prejudice, lack of education, lack of legal representation, and cluttered court dockets are common to both countries. this suggests that india may place different emphases in applying the skills and values enumerated by the maccrate report, as well as consider the extent to which additional or alternative skills and values are more meaningful and explicit.56 40 journal of clinical legal education july 2007 kept in binders. my suggestion is that the externship supervisor take an active role in assessing the placement experience through contact with the supervisor and feedback from the student. if the experience has not been a good one for reasons primarily associated with the setting and supervision provided, then future students should be instructed to avoid that placement. 53 maccrate report, supra note 33. 54 id. at 138-221. see also menon, supra note 3, at 4191; aba standards, supra note 28, at standard 302 (b) a law school shall offer substantial opportunities for: (1) live-client or other real-life practice experiences, appropriately supervised and designed to encourage reflection by students on their experiences and on the values and responsibilities of the legal profession, and the development of one’s ability to assess his or her performance and level of competence; (2) student participation in pro bono activities; and (3) small group work through seminars, directed research, small classes, or collaborative work. 55 see russell g. pearce, maccrate’s missed opportunity: the maccrate report’s failure to advance professional values, 23 pace l. rev. 575 (2003) (criticizing the maccrate report as failing to emphasize the teaching of values as high a priority as teaching lawyering skills). 56 see bloch & prasad, supra note 5, at part iii (discussing the need for india to adapt the maccrate report to its own needs and proposing a modified set of skills and values.). identifying the skills and values that are components of legal education is the first step to determining how they will be taught. once identified, they need to be integrated into the teaching of traditional subjects in the classroom setting so that understanding of substantive law is connected to its professional application.57 a torts or personal injury course will teach legal analysis and reasoning, but it must also engage students in problem solving and critique of issues such as caste, class and gender and address issues of justice, fairness, and morality in considering how tort law applies and should apply in serving the community. this aspect of the course need not be in conflict with the need to cover a significant body of substantive law.58 balance is essential.59 students should be aware in each of their courses of the interrelationship of legal precepts, contextual realities and legal practice so that they can gain a sense of professional connection and lay a foundation for competence. while teaching professional skills may be reinforced in teaching substantive courses, courses dedicated to developing skills are also necessary. for example, 1. legal research and writing are fundamental and should be introduced through a structured course or series of courses taught by expert law faculty. certainly, the move in this direction has been a painful one in the united states.60 however, its importance is reflected in the accreditation standards for law schools in the united states: schools must require two legal writing courses of all students prior to graduation. apart from professional responsibility, this is the only specific course requirement in the accreditation standards.61 the ability to gather, synthesize and use information is essential for lawyers to know regardless of the context in which they will apply those skills. research and writing may result in pleadings, briefs or argument in court, but may also be used to inform community education projects, alternative dispute resolution approaches, public advocacy, and problem solving in general. clinical legal education in the law university: goals and challenges 41 57 educating lawyers, supra note 38 at 190191 (noting that the maccrate report considered the skills and values it advocated as additions to the law school curriculum instead of more appropriately viewing them as teaching objectives throughout the curriculum). 58 see, e.g., margaret martin barry, jon c. dubin & peter a. joy, clinical education for this millennium: the third wave, 7 clinical l. rev. 1, 41-44 (2000) (discussing the inclusion of a live-client clinic experience in first year courses in law schools in the united states). 59 law teachers often feel driven to cover substantive legal information without faith in exchanging some of that coverage to challenge students to understand and engage in constructive critique of the circumstances and practices that bring the issues into being. see sexton supra note 32. 60 see joan s. howland & nancy j. lewis, the effectiveness of law school legal research training programs, 40 j. legal educ. 381, 390 (1990) (attributing students’ negative attitudes towards legal research to the low value law schools place on research skills in the curriculum; they “are often taught by nontenure-track faculty, are ungraded, and frequently are not particularly rigorous.”). see also james b. levy, the cobbler wears no shoes: a lesson for research instruction 51 j. legal educ. 39 at n. 15 and 2 (2001) (making the same observation). consistent with these observations, legal writing instructors receive the least protection of all teaching faculty under the standards; the extent of the security of position for these teachers falls far short of tenure – schools need offer no more than short-term contracts to their legal writing faculty. aba standards, supra note 28, at standard 405(d) and interpretation 405-9. 61 aba standards, supra note 28, at standard 302 states: (a) a law school shall require that each student receive substantial instruction in: (1) the substantive law generally regarded as necessary to effective and responsible participation in the legal profession; (2) legal analysis and reasoning, legal research, problem solving, and oral communication; (3) writing in a legal context, including at least one rigorous writing experience in the first year and at least one additional rigorous writing experience after the first year . . . . 2. interviewing and counseling, negotiation, trial practice, and alternative dispute resolution are four additional skills courses that should be considered. they are not exclusive remedies, and some may be irrelevant to areas of needed service in india. however, they are tools lawyers use and law graduates should have a basic understanding of these competencies in order to effectively assess their utility. this is particularly true of alternative dispute resolution. the growing interest in adr in the united states is a direct result of frustration with cluttered court dockets, resulting delays and poor service. congestion in indian courts is far greater.62 as a result, a variety of alternative approaches have developed, but the integrity of these alternatives requires greater analysis.63 it is important for students to learn about, critique, and, where necessary, explore alternatives to various methods used. effective teaching of these skills courses requires participation in a series of simulations that challenge students to integrate assigned readings as they develop basic competencies. thus, it is hard to consider teaching these courses effectively in classes having more than sixteen to twenty students. student opportunities to participate in sufficiently supervised simulations would be compromised in larger classes. this means dedicating several sections within a given year of students to covering each set of skills, and possibly linking the skills sections to a larger substantive course for greater impact.64 3. moot court competitions are already quite popular at the law universities. these simulated appellate arguments help develop research and writing and persuasive oral argument skills.65 however, moot court participation should be in addition to legal research and writing courses, and the important oral skills learned cannot be viewed as unrelated to or supplanting the skills needed to creatively address social and economic justice problems. 42 journal of clinical legal education july 2007 62 the logjam in indian courts is renowned. see krishnan, supra 18 at 497; jaynath k. krishnan, social policy advocacy and the role of the courts in india, 21 am. asian rev. 93 (2003); and galanter & krishnan, supra note 46. 63 “parliament passed the legal services authority act, 1987, which aims at both providing free legal aid and organizing lok adalats (people's courts) to secure quick justice at low cost.” bloch & prasad, supra note 5, at 173. “lok adalat settlement is no longer purely a voluntary concept. . . . cases can be referred by consent of both parties to the disputes, where the court is satisfied that the matter is appropriate to be taken cognizance of by the lok adalat . . . . settlements shall be guided by the principles of justice, equity, fair play and other legal principles; if agreement is reached by the consent of the parties and passed on by the conciliators, the award is final and the matter need not be referred back to the concerned court for consent decree; if no compromise is reached through conciliation, the matter shall be returned to the concerned court for disposal in accordance with law . . . . id at 212, n.135. . see also, galanter & krishnan supra at 804805. 64 see don peters, mapping, modeling, and critiquing: facilitating learning negotiation, mediation, interviewing, and counseling, 48 fla. l. rev. 875 (1996) (recommending that faculty members who teach large classes can collaborate with lawyers who can map, model and critique smaller simulation sections of the larger course). 65 this first of the practical paper requirements required under indian law seems to be the most seriously pursued. see bloch & prasad, supra note 5. c. clinical programs. an in-house clinic (one run by the university for purposes of teaching its students and providing service to the community)66 or a hybrid clinic (one that collaborates with an existing legal services office to provide representation)67 is a carefully constructed integration of client service and contextual learning. students must reference their substantive law and legal skills education and expand on both in the course of providing effective service. in the united states, in-house and hybrid clinics serve clients who are unable to pay for legal services or who are unable to find representation. clinics have traditionally sought such clients in order to emphasize for students their professional obligation to assure access to justice. furthermore, student practice rules generally limit representation to the same body of clients.68 the purpose of limiting service to indigent clients avoids competition with the private bar and inculcates the same sense of professional obligation.69 a clinical course run by the university and taught by its faculty, allows students to participate in legal service that is designed to maximize their learning. when in a student’s law school career to provide such clinical experiences has been the subject of experimentation and debate. some have argued that it should start immediately, to avoid the damage otherwise done in first year law clinical legal education in the law university: goals and challenges 43 66 the definition given back in 1992 by a special committee of the association of american law schools has not been improved upon. it is quoted below both for what it has to say about clinical teaching methods and in-house clinics. clinical education is first and foremost a method of teaching. among the principal aspects of that method are these features: students are confronted with problem situations of the sort that lawyers confront in practice; the students deal with the problem in role; the students are required to interact with others in attempts to identify and solve the problem; and, perhaps most critically, the student performance is subjected to intensive critical review. if these characteristics define clinical teaching, then the live-client clinic adds to the definition the requirement that at least some of the interaction in role be in real situations rather than in make-believe ones. that is, the interaction with others in role occurs with real clients and participants in the legal system rather than with other students and actors. the nature of the real issues and cases in the liveclient clinic provides both concreteness and complexity to the student’s learning experience. the in-house clinic further supplements the definition of clinical education by adding the requirement that the supervision and review of the student’s actual case (or matter) . . . be undertaken by clinical teachers rather than by practitioners outside the law school. although the clinical movement began with practitioners used as supervisors, many clinical teachers came to believe that student supervision by practitioners was problematic for a methodology in which teaching was not incidental to the enterprise but rather its primary function. while a practitioner might be a superb lawyer, she would be unlikely to have the training, experience, or time to devote to the teaching role that a full-time clinical teacher would. robert dinerstein, report of the committee on the future of the in-house clinic, 42 j. legal educ. 508, 511 (1992). 67 see barry et al., supra note 58, at 28; margaret a. (peggy) tonon, beauty and the beast – hybrid prosecution externships in a non-urban setting, 74 miss. l.j. 1043 (2005). 68 student practice rules in the united states allow students to appear in court on behalf of their clients under the supervision of faculty members and, in certain instances, other attorneys. see jennifer a. gundlach, this is a courtroom, not a classroom”: so what is the role of the clinical supervisor? 13 clinical l. rev. 279, 287-288 (2006) (discussing the impact of the student practice rule on the development of clinical programs). 69 see robert r. kuehn, denying access to legal representation: the attack on the tulane environmental law clinic, 4 wash. u. j.l. & pol'y 33 (2000). for discussions of the student practice rules in the united states, see student practice as a method of legal education and a means of providing legal assistance to indigents: an empirical study, 15 wm. & mary l. rev. 353(1973-1974); sara b. lewis, rite of professional passage: a case for the liberalization of student practice rules, 82 marq. l. rev. 205 (1998);peter a. joy, ethics of law school clinic students as student-lawyers, 45 s. tex. l. rev. 815 (2004) (discussing ethical student practice rules in the united states and related ethical issues). courses that are too removed from the profession.70 if the law universities are committed to building a strong clinical and skills curriculum, it would seem that the in-house and hybrid clinical experiences may have the greatest impact as part of the students’ initial law school experience, with levels of responsibility escalating in each year. thus, students would begin as part of the clinic enterprise, but with very limited tasks, with their responsibilities progressing such that by their last year they are performing as many of the lawyering tasks as possible. alternatively, the clinic experience could be approached as a capstone to the progressive range of skills developed as part of the curriculum. if the curriculum requires externship experiences and uses experiential learning methods such as simulation, role-plays and so on early on, then by the last year students would prepared to step into the role of advocate or mediator in the complicated context of real life situations. this is particularly true for students who enter law school from high school, as they do in india. a capstone clinic experience would come after they have had the chance to mature, both in terms of life experience and understanding legal potential. the approaches suggested by need for services, teaching goals, and experimentation should make consideration of when and how to engage students a fluid and innovative process.71 issues of when, what and how to organize the clinic offering require careful assessment of learning objectives and community needs.72 the 1977 report on national juridicare observed that “there are no two opinions about it that there is need to reform the system of legal education in the direction of making it poverty-oriented, multi-disciplinary and related to actual social conditions.”73 the report described its goal as building “a cadre of poverty lawyers competent to run a nation-wide legal services programme.”74 a cadre of public interest lawyers is certainly an attractive goal, and, making clinic available to such a discreet group may be the best way to initiate clinical programming.75 however, the broader goal of clinic and an integrated curriculum is to 44 journal of clinical legal education july 2007 70 see michael a. millemann & steven d. schwinn, teaching legal research and writing with actual legal work: extending clinical education into the first year, 12 clinical l. rev. 441 (2006). see also barry et al., supra note 58. 71 see, e.g. v. m. salgaocar college of law legal aid society supra note 30. 72 making clinical programs available to all students is a challenge. attempting large scale live client offerings raises the specter of over-extended supervision and poorly conceived client services. one evening at dinner, a few months after returning from my visit at nalsar law university, i discussed my concerns about implementing a clinical program at nalsar with professor leah wortham and ms. nimushakavi visanthi (ms. visanthi happened to be visiting at washington school of law). professor wortham was relating her view that it is far more realistic to contemplate setting up a small program available to a several students per semester or year, and viewing that program as the basis for developing a solid program that is responsive to the unique needs of the particular social setting. this was a liberating view since i had felt had been intently focused on the need to make the live-client clinical experience available to all students at the university, in short order. professor wortham developed her views in her aiding clinical education abroad article, supra note 45. 73 menon, supra note 3, at 21 (citing report on national juridicare: equal justice, social justice, ministry of law and justice, govt. of india, 1977). 74 id. 75 from my brief conversations with the fifth year students who i taught at nalsar, with the possible exception of two who were inclined to pursue a criminal defense career, none considered public interest work an option they would pursue. many felt either inclined or pressured to take corporate jobs because they are viewed as lucrative. a few wanted to enter their families’ practices. still others wanted nothing to do with law, had no idea what area to practice in, or wanted to use their law degrees in another profession. a fair number also wanted to continue their studies, including many of those who envisioned doing corporate law. not one specified poverty law as an area of interest, although there may have been a few who felt inclined that way and expressed it as dissatisfaction with the profession. the disinterest could be attributed to lack of exposure to poverty law, but it seems overkill to seek to make students poverty lawyers, as opposed to lawyers who, in addition to their legal career goals, understand how to effectively apply their expertise in service to the poor and underserved. expose students to poverty law issues in the hope that, while a significant number may then be inspired to pursue poverty law practice, others will pursue these issues through or in addition to their ultimate area of practice.76 another basic consideration is whether the clinic should be a hybrid or in-house program. if the clinic is to be in-house, then the law university must assess what type and scope of legal service its clinic will provide. relevant considerations would be: what community is to be served; what service is needed in the community; what lawyering competencies it is most important for the students to develop; what service is the university particularly interested in providing; and what area of practice the clinical faculty is best qualified to teach or most interested in pursuing.77 there may be a great need for representation in the community surrounding the university, but the areas of legal expertise required to respond effectively may be beyond the expertise or educational priorities of the university; or the university may want to be identified as a general legal resource for that community and this choice will influence clinic development. deciding which approach to take should involve the faculty in a discussion of the university’s role in introducing students to creative lawyering approaches and fostering a climate of innovative problem solving. thus, the decision of what type of clinic is best seen as framing the clinic entity and possibly the initial issues and approaches the program will focus on, but would be truest to desired educational and service goals if it is designed with sufficient flexibility to respond to needs identified as a result of community involvement. the hybrid clinic may provide more breadth with regard to areas of practice and the types of expertise students can reasonably develop. a legal aid office or non-governmental organization (ngo) may handle a wide range of legal matters in ways that members of the law faculty may not have anticipated. dividing the students among non-faculty supervisors with expertise in a range of issues and approaches allows students to develop a sense of competence while operating in a general practice setting or ngo. depending upon the relationship with the collaborating office and clinical program goals, clinic faculty may or may not provide direct supervision. possible models for supervisory collaboration would have the faculty member supervising some assignments that do not involve court appearances, co-supervising all assignments or closely observing the developments in activities supervised by placement attorneys while working closely with them on clinical legal education in the law university: goals and challenges 45 76 the skills taught in clinic are intended to be transferable. skills poverty lawyers use to address the needs of their clients are similar to those used in many legal settings. interviewing, assessing facts, developing case theories, investigation, legal research, problem solving, client counseling, advocating in a variety of forums, and even community education are skills that lawyers use and that students should have exposure to prior to completing their professional education. this was the approach i took in raising issue of poverty, access to justice, limitations in legal responses, and disparate impact when teaching at nalsar. having spent my first class learning about the students and their goals and interests, i knew that it was important to discuss the hypothetical i used and issues i wanted to raise in a way that would resonate for them. i urged them to consider their responsibility to address these issues regardless of the practice they chose to pursue. all lawyers have an obligation to recognize and respond to the needs those who society overlooks or mistreats or the compelling problems that are ignored. in fact, opportunities to explore this obligation exist and should be pursued throughout the law school curriculum. see jane h. aiken, provocateurs for justice, 7 clinical l. rev. 287 (2001) (discussing the opportunity clinics offer to inspire law students to commit to justice and the need for clinical faculty to provoke a desire to do justice in their students). 77 professor wortham observes in the context of promoting the institution of law school clinics, “given my view of the importance of involving faculty and the usual situation in which many areas of law present legal needs for poor people and under-served interests, i think it is legitimate to focus a clinic in an area of faculty enthusiasm.” wortham, supra note 45, at 671. student supervision.78 additionally, the faculty role should involve teaching or co-teaching a classroom component of the course that covers relevant skills and substantive law and that includes rounds that provide students with the opportunity to reflect on their work. the hybrid clinic model assumes a commitment on the part of the legal aid office or ngo to assist with educational goals of the clinic and closely collaborate with the clinic faculty. ideally, the relationship benefits all involved in that the degree and quality of the services provided by the outside entity are enhanced by connection with the university, its faculty and students. another consideration with regard to whether or not to choose a hybrid or an in-house clinic is the possible need for the university to fully staff the in-house clinic office year round. coverage for faculty members who may want to write, who will need vacation time or may become ill must be considered, especially since clinic projects may extend beyond the academic semester. rotating faculty responsibilities might avoid this problem as well as contribute to integrating clinical and substantive law teaching. coverage considerations are less compelling where the clinic enterprise operates in collaboration with a legal aid office in a hybrid clinic. clinic location is another consideration. should the clinic be viewed as an office to which clients come or a base from which students span into the community? in either event, an office creates a space for student interaction and support. should it also be an identifiable resource for the community? if so, should it be located on campus or in the target community? should it be mobile or static? these will depend on a number of factors, including the type of clinic, the location of the law school, space needs and availability. accessibility to the population served should be a primary consideration, but may well be trumped by budgetary and other considerations. how to assign students to the planned services is another consideration. should they be teamed? teaming students provides an opportunity to develop a skill of increasing importance to legal, as well as other, professional practice: collaboration. students are often trained to work independently prior to entering law school and during much of their law school careers. one of the goals for integration of clinical methods throughout the law curriculum would be to encourage collaboration in the classroom and on course assignments in order to prepare students to work effectively in professional practice.79 by extension, within the clinic such collaboration is created through teaming and by creating an environment in which students share ideas with regard to each other’s work. what kind of work to assign is a separate issue. while this issue will inevitably be driven by the kind of service to be provided, assignments should be manageable and provide some opportunity to build expertise. with regard to law clinics in the united states, some have argued that practice limited to a specific area of law allows students to understand the issues related to that type of practice more clearly and provides the opportunity to develop reasonable competence with regard to the subject matter. a contrary view holds that specialization trains students to fit their clients’ 46 journal of clinical legal education july 2007 78 see barry et al., supra note 58, at 28 (discussing approaches to hybrid clinics and the relative economic benefits of this approach). 79 see janet weinstein & linda morton, interdisciplinary problem solving courses as a context for nurturing intrinsic values, 13 clinical l. rev. 839, 847 (2007); david f. chavkin, matchmaker, matchmaker: student collaboration in clinical programs, 1 clinical l. rev. 199 (1994). problems into a subject matter box.80 such considerations may or may not be as relevant to approaches identified for addressing problems india. still, the consideration flags the importance of assessing the types of legal assignments the students are given with an eye towards connecting the services provided to the educational goals of the clinical program. central to any model pursued will be a commitment to optimizing student learning. the goal is to develop lawyers who will be able to effectively address community needs, and not to confuse this goal with using the students as the solution to legal service needs. one of the tools the lawyer is expected to have is the ability to use litigation as an option for solving client problems. since students in the united states practice under the supervision of a licensed attorney, usually their clinic professors pursuant to the student practice rules of the relevant state, students are able to take primary responsibility for the full range of representation that may be provided by a lawyer, including the traditional role of litigating before the courts.81 while, as noted above, a solid clinical experience could be fashioned around a program that does not involve the ability to enter the courts, the option to pursue such a remedy would provide the student the opportunity to experience the benefits and limitations of this aspect of legal practice. another consideration is language barriers to effectively serving the poor. language barriers can pose significant challenges, even as they offer opportunities for learning professional skills. in order to serve the poor in india, language differences will need to be addressed. many underserved clients speak only the local state language, while the students who come to the law universities often come from several indian states. the students and faculty share hindi and english, but these languages are often not shared by the poor.82 thus, interpreters are necessary to assist with the complex communication needed for competent representation. law universities may need to hire interpreters to work with their students in an in-house clinic, or as part of facilitating the interface in a hybrid clinic setting.83 learning to work with interpreters is a useful skill for students to develop given the strong possibility that their careers will involve the use of interpreters. one option discussed at nalsar was requiring first year law students to learn the local language. while this would send students an important message with regard to communication and cultural clinical legal education in the law university: goals and challenges 47 80 see, e.g., antoinette sedillo lopez, learning through service in a clinical setting: the effect of specialization on social justice and skills training, 7 clinical l. rev. 307 (2001) (discussing the pros and cons of specializatin, and arguing that specialization makes it more difficult to serve the myriad needs of clients and it limits students’ ability to be creative problem solvers). 81 see supra note 68. 82 telugu is the language spoken in the portion of andhra pradesh in which nalsar is located. for many poorer members of the community, hindi and english do not supplement their native language. students at nalsar are both educated and diverse. they come from many parts of india, and thus many do not know telugu, although they do know hindi and english. in order to help underserved local residents, they will need to know telugu or work through interpreters. there has been some thought that students in their first year at nalsar should be required to learn telugu, as a way of acknowledging the host community and as a way of underscoring the need to reach out to the poor. familiarity with the local language and culture could also complement the social science goals of the first two years of the law university curriculum. 83 see washington college of law, american university, ad hoc committee on serving clients having limited english proficiency, bellow scholar program proposal: developing a collaborative model for delivering legal services to clients with limited english proficiency attached, with permission, as appendix a (discussing the committee’s considerations with regard to the use of interpreters). see also angela mccaffrey, don’t get lost in translation: teaching law students to work with language interpreters, 6 clinical l. rev. 347 (2000) (discusses teaching methodologies and language access issues – while the focus is on law in the united states, the article offers guidance for students on when an interpreter is needed). competency, it may not lead to the depth of communication needed for effective problem solving. related to the use of interpreters is this idea of developing cultural competencies.84 religious, cultural, caste, class, economic, gender, and experiential differences all suggest an imperative to develop awareness among students of their need to be responsive to the impact of difference on their ability to serve their clients effectively. assumptions about similarities and differences can inhibit or confuse communication despite the deepest commitment to service.85 they can also narrow the perspective needed to engage in the creative problem solving that society demands. there are a number of considerations with regard to faculty who teach clinical courses that have gotten in the way of successful clinical programming in the united states that india will hopefully avoid. parity with other law faculty has been an ongoing battle in law schools in the united states. the american bar association, in its role as law school accrediting agency, has established that a form of parity is necessary, though it has equivocated on the issue.86 the status of clinical faculty has direct implications for the quality of clinical programming, and for the integration of clinical methodology throughout the curriculum. faculty teaching clinical courses should be full members of the law faculty. a status that limits input in law school governance, for example, or provides a less secure faculty position or regard, could affect program integrity and efforts to integrate clinical methodology and skills in general throughout the curriculum.87 furthermore, a secondary status sends the message to students that clinical and skills courses are not as central to their legal education as substantive law coverage. i have no sense that this is or would be an issue in india. it appears that faculty members involved in clinical courses are not a separate category of teachers, and, in fact, teaching clinic is in addition to robust course loads. however, teaching assignments may become more tailored to the demands of clinical teaching as clinical programming develops within the law universities. with that in mind, it is important to avoid the unfortunate stratification and dissociation amongst teachers that exists in some law schools in the united states as that may inhibit the curricular integration that has been identified as a lacking in american legal education.88 course load is another consideration regarding faculty. as with the externship program discussed above, teaching the in-house or hybrid clinic should occupy most, if not all, of a faculty member’s teaching load. in the united states, it has generally been accepted that a full teaching load has clinical faculty responsible for approximately eight students for an in-house clinic, with adjustments made based on the number and complexity of the cases assigned and the credit hours 48 journal of clinical legal education july 2007 84 see susan bryant, the five habits: building crosscultural competence in lawyers, 8 clinical l. rev. 33 (2001) (discussing methods for developing cultural competence). 85 in our families and the law clinic, my colleague catherine f. klein and i use exercises based professors susan bryant and jean koh peters’ work and on ideas about storytelling based on our exposure to the work of jo tyler to explore these assumptions between teachers and students. we then expand the exploration to issues of difference between students and their clients. see “cross cultural lawyering” (role-play on this approach as presented at city university of new york (cuny) school of law by professors barry and klein, on file with the author). see also, bryant, supra. 86 aba standards, supra note 28, at section 405(c) seek to establish a floor for the treatment of clinical faculty, but fail to require parity by only requiring “reasonably similar tenure” as to other full-time faculty. 87 see, e.g., wortham, supra note 45; keith a. findley, rediscovering the lawyer school: curriculum reform in wisconsin, 24 wis. int'l l.j. 295, 308-9 (2006). 88 see generally, educating lawyers, supra note 38, and best practices, supra note 32. granted for the course.89 more students can be supervised in a hybrid program, but numbers depend on the kinds of cases and level involvement by the faculty supervisor. part of the resistance to clinical programming in the united states has been the expense. the low student/faculty ratios considered appropriate for high quality clinical programs have led schools in the united states to be creative in hiring fellows or practitioners-in-residence to help teach.90 as argued with regard to law schools in the united states, finding the resources for quality clinical legal education is a matter of priorities.91 committing to clinical legal education will require identifying it as a priority in allocating the limited resources available. licensure for law faculty is an issue that might need to be addressed for purposes of establishing an in-house clinic, and, depending upon the level of involvement in any trial work anticipated for the hybrid, for that model as well. apparently, the prohibition on licensure of law faculty is based on concerns about compromising the quality of legal education if faculty members are allowed to practice.92 however, practice prior to joining and to a modest extent while on a law faculty would provide an important connection to the traditional center of the profession being taught.93 furthermore, the absolute prohibition seems excessive in that concerns about employment priorities should be able to be handled as a matter of law school administration, not licensure. the limitation means that law faculty are institutionally isolated from part of legal practice and thus from part of the profession they seek to teach. it also contradicts the spirit of if not the opportunity for the clinical experience espoused as part of the indian legal education reform movement. nonetheless, programmatic goals for clinical legal education can be met without entering a courtroom. this is especially true where, as in many parts of india, dispute resolution clinical legal education in the law university: goals and challenges 49 89 report of the committee on the future of the in-house clinic, supra note 66 at 552 (reporting that the average student teacher ratio was 1:8, with 84% of schools reporting ratios of 1:10 or better). “the ideal ratio varies with the goals of the clinic, the nonsupervision demands placed on the clinical teacher, the number of credit hours that each student earns, and the types of cases that the clinic handles.” id. see also best practices, supra note 32, at 179 (discussing “experiential courses” and observing that, “[t]he demands of experiential teaching are different from non-experiential teaching, and schools should take care to ensure that the student-faculty ratios, caseloads in in-house clinics, and the overall obligations of experiential teachers are conducive to achieving the educational programmatic goals of their courses. one must balance the need to give students meaningful experiences against the risk of overloading students or teachers and interfering with their abilities to achieve the educational goals of their courses.”). 90 for example, georgetown university law center hires fellows who, in addition to a modest stipend are able to work towards a specialty in clinical education. american university’s washington school of law hires practitioners-in-residence who are not on a faculty track and who are expected to leave after two years of teaching. 91 see barry et al., supra note 58, at 8-11. 92 see supra note 28. 93 in describing the gap between expectations and reality with regard to legal education and practice, the maccrate report observed that the practicing bar complains that graduates “can’t draft a contract, they can’t write, they’ve never seen a summons, the professors have never been inside a court-room,” to which the law schools respond “[w]e teach them how to think, we’re not trade schools, we’re centers of scholarship and learning, practice is best taught by practitioners.” the report argues that the “the skills and values of the competent lawyer are developed along a continuum that starts before law school, reaches its most formative and intensive stage during the law school experience, and continues throughout a lawyer’s professional career.” maccrate supra note 33, at 3-4. “[t]here is no ‘gap’. there is only an arduous road of professional development along which all prospective lawyers should travel.” id. at 8. regardless of the degree to which it is considered wise for law faculty to engage in practice, to not allow practice by those who teach seems inconsistent with professional education. certainly that is underscored when the clinical teaching methods are considered. in a range of venues that offer alternatives to the judicial system is the likely extent of adjudicative services that are available.94 these frames or baselines for proceeding with clinical programs at the law universities respond to the relative lack of initiative observed compared to the express support for clinical legal education in india. the pace of clinical program development is distressing because educating lawyers has the potential to have an impact on every strata of indian society, raising awareness and constructive responses to the considerable social imbalances that threaten the country’s development. the need for legal literacy and access to meaningful dispute resolution alone is sufficiently acute that the country is well-suited to establish the standard for what legal education can do to provide models for justice system. iv. making a road by walking the law universities have changed the landscape of legal education in india. their size, their relative independence and their resources set them apart. they have the potential, and the mandate, to provide their students with significant experiential learning. they can benefit from the critique of law schools in the united states, particularly the consistent failure to achieve the potential of clinic and skills training, by integrating both into the law school curriculum. the bar council and its commissions have spent considerable energy identifying changes in the approach to legal education. a focus of the recommendations has been the need to establish clinical programming as an important aspect of improving professional preparation and developing a commitment to social justice. with that in mind, the issues raised in this article identify some strategies for moving forward, and will hopefully provide support for the training that many law teachers across india have recently been receiving through the efforts of the south asian forum of clinical law teachers and the menon institute of legal advocacy training.95 law universities have both an obligation and a unique opportunity to prepare a generation of lawyers to approach the law with a commitment to justice and the skills to move effectively towards achieving it. their establishment created a way to focus attention on functioning models of legal education reform. the challenge now is to teach in ways that expose students to the standards of service and excellence contemplated. a major aspect of achieving this will be to gradually implement a range of carefully planned clinical programs and connect them effectively to the rest of the curriculum, pausing regularly to evaluate the extent to which a bend in the road is indicated. we all stand to benefit from what progress is made. 50 journal of clinical legal education july 2007 94 galanter and krishnan supra note 46 at 789. 95 see supra note 16 discussing the trainings. reviewed article – teaching and learning in clinic reviewed article – teaching and learning in clinic proposal for an italian family mediation clinic andrea gallinucci-martinez, columbia law school, united states of america acknowledgements i am truly blessed to have an amazing family that always supports me, and i hope this work can inform programs that empower families to reinforce positive communication and productive dialogue. i want to dedicate this work to my wife tanya, my mother cinzia, my father giancarlo and my grandmother iolanda. i also want to thank professors carol liebman, alexandra carter and lecturer in law shawn watts of columbia law school and professors monica lugato, emanuele odorisio and angelo rinella of libera università maria ss. assunta for their invaluable contributions to this research and their constant support and encouragement. finally, my gratitude goes to all the administrative assistants of the clinical programs at columbia law school. i welcome feedback on this article and/or general ideas on the topics discussed. please feel free to contact me at ag3745@columbia.edu. introduction before joining columbia law school’s ll.m. program, my understanding of clinical legal education was very limited. being the product of an italian legal education, i was not even sure of what exactly a law school clinic was. then, i took my first steps into this fascinating field with the help of professor alexandra carter and lecturer-in-law shawn watts. i became impressed by the learning experience provided by the mediation clinic, and came to realise that clinical teaching could be incredibly beneficial for law students all over the world and within each and every academic environment. for these reasons, i decided to focus my research on creating a framework for the introduction of a mediation clinic in italy, via collaboration with libera università maria ss. assunta (“lumsa”) in rome.[footnoteref:1] [1: for similar research in different contexts, see schrag p., constructing a clinic, 3 clinical law review 175 (1996); broadhead p., a model program for establishing a criminal appeals clinic at your school more bang for the buck, 75 mississippi law journal 671 (2006); jessup g., symbiotic relations: clinical methodology-fostering new paradigms in african legal education, 8 clinical law review 377 (2002); rosenbaum s., the legal clinic is more than a sign on the door: transforming law school education in revolutionary egypt, 5 berkeley journal middle east & islamic law 39 (2012); wilson r., three law school clinics in chile, 1970‐2000: innovation, resistance and conformity in the global south, 8 clinical law review 801 (2002); zielińska e. et al., the legal clinic: the idea, organization, methodology, the legal clinics foundation – warsaw (2005); qafisheh m., reforming legal education through clinical pedagogy: legal education in palestine, 4(2) asian journal of legal education 146 (2017).] in order to properly consider how a mediation clinic could be implemented in lumsa, i had to learn about clinical education and how it developed. for this reason, section a of this paper discusses the historical evolution of clinical legal programs in the united states, the homeland of clinical legal education. next, i discuss the current framework of italian legal clinics, focusing on its american heritage and associated nuances. after understanding the evolution of clinical legal education, i needed to understand how it is currently implemented, and how this model could be adapted in other settings. section b considers why mediation would be particularly suitable for the creation of an italian legal clinic, given the recent incentives created by the european legislature to strengthen alternative dispute resolution. then, taking advantage of the institutional knowledge of professors carol liebman and alexandra carter, i describe the evolution of the columbia law school mediation clinic, from its beginning to the recent creation of an advanced clinic model. finally, i describe how these insights can inform laying the foundations for an italian mediation clinic at lumsa. section c lays out baseline considerations and recommendations for creating a family mediation clinic at lumsa. to this end, i analyse three different approaches to family and community mediation previously adopted in the context of clinical legal education: facilitative mediation, transformative mediation, and peacemaking circle. then, i propose a model tailored to the cultural, legal, and educational needs of lumsa and of the families the clinic hopes to serve. finally, i provide sources and materials for the proposed curriculum, including a sample role-play that i created. a. clinical legal education i. the development of clinical legal education in the united states the evolution of clinical legal education in the united states starts in 1933 in new haven, with the publication of a law review article called “why not a clinical lawyer-school?”[footnoteref:2] by professor jerome frank, who referred to the law school curriculum as inadequate and unreasonably abstract, because of the absence of any apprenticeship at all. [footnoteref:3] the article proposed that law schools should follow the example of medical schools and open clinics, staffed by faculty with practical experience that would offer legal services for a nominal fee.[footnoteref:4] this position was later reaffirmed by karl llewellyn, professor at columbia law school, who did not believe, as frank seemed to, in the complete substitution of theoretical instruction, but strongly advanced the idea that theoretical studies should be accompanied by practical complements.[footnoteref:5] despite having different views on the extent to which practical activities should be incorporated in the law school curriculum, both llewellyn and frank were early advocates of clinical legal education, recognising that students must learn about the “law as a means to an end rather than as an end itself.”[footnoteref:6] [2: frank j., why not a clinical lawyer-school?, 81 university of pennsylvania law review 907 (1933). see, also, frank j., what constitutes a good legal education?, 19 american bar association journal 723 (1933); symposium, law and the modern mind, 31 columbia law review 82 (1931); frank j., a plea for lawyer-schools, 56 yale law journal 1303 (1947). for a detailed analysis of the writings of professor frank, see kruse k., getting real about legal realism, new legal realism and clinical legal education, faculty scholarship paper 382 (2011).] [3: see, frank why not a clinical lawyer-school? (1933), supra, p. 914-915 (“[t]he lawyer must learn the jargon of the courts, the art of judicial rhetoric. the exclusively book lawyer can perhaps best teach such ‘library-law’. [therefore,] ‘library-law’ teacher[s] should cease to dominate the schools … [but] [u]nfortunately, attempted reform of legal pedagogy is frequently in [their] hands.”). ] [4: see, frank why not a clinical lawyer-school? (1933), supra, p. 917 (“… now we come to a point which the writer considers of major importance … law schools could learn much from the medical schools. medical schools rely to a very large extent on the free medical clinics and dispensaries. … suppose … that there were in each law school a legal clinic or dispensary. … the work of these clinics would be done for little or no charge. the teacher-clinicians would devote their full time to their teaching, including such clinical work, and would not engage in private practice.”). see, also, holland l., invading the ivory tower: the history of clinical education at yale law school, 49 (4) journal of legal education 504 (1999), p. 508-509.] [5: see, llewellyn k., on what is wrong with so-called legal education, 35 columbia law review 651 (1935), p. 675 (despite the fact that “law school is needlessly abstract, and needlessly removed from life … i do not believe, as frank seems to, in the substitution of practice or clinic for theoretical instruction. but i believe with all my soul in the livening up, the making real, of the theoretical work by practical complement.”). see, also, llewellyn k., the current crisis in legal education, 1 journal of legal education 211 (1948), which contains a critique of use of the case-method model in american law schools during the 1940s. ] [6: barry m. et al., clinical education for this millennium: the third wave, 7 clinical law review 1 (2000), p. 12. ] the purpose of learning law through clinical legal education became more defined in the 1960s.[footnoteref:7] in the days of watergate and of vietnam, advocates of clinical education passionately believed that the clinical movement, which claimed to be sensitive, egalitarian, nonhierarchical, and open would revolutionise traditional legal education and lead to reform of the profession.[footnoteref:8] this social change revolution provided an opportunity to shift from “law school curricula … organised around the profit system,” to a model that included “considerable clinical experience … directly concerned with the problems of the poor.”[footnoteref:9] this altruistic cause was embraced and encouraged by the ford foundation, which donated several million dollars to law schools that agreed to introduce legal clinics devoted to serving the poor as a permanent feature of their curriculum.[footnoteref:10] the economic incentives offered by the ford foundation boosted the growth of clinical legal education exponentially throughout the united states[footnoteref:11] and consolidated the commitment to social justice, fairness and non-discrimination, which became crucial features in the development of clinical education[footnoteref:12] and are still fundamental in the outreach mission of law school clinics as we know them today.[footnoteref:13] [7: see, barry m. et al., supra, p. 12. see, maccrate r., educating a changing profession: from clinic to continuum, 64 tennessee law review 1099 (1997), p. 1108 (despite the fact that in the late 1950s and early 1960’s “law school clinics provided an insignificant part of the total legal aid work, the importance of the clinics’ educational mission was gaining recognition in the bar at large, as well as in the legal aid community.”). see, generally, meltsner m. and schrag p., reflections on clinical legal education, northeastern university press – boston (1998).] [8: see, symposium: clinical legal education: reflections on the past fifteen years and aspirations for the future, 36 catholic university law review 337 (1987), p. 341. see, also, holland l., supra, p. 514 (“[t]he social and political movements of the 1960s called lawyers to become activist reformers. law students heard the same call and sought out work that would make their theoretical study of law relevant to the social struggle that was going on outside the walls of the law school.”)] [9: ares c., legal education and the problem of the poor, 17 (3) journal of legal education 307 (1965), p. 307-310. see, also, feldman m., on the margins of legal education, 13 n.y.u. rev. l. & soc. chance 607 (1985), p.638 (“even if the majority of our students go on to professional lives entirely unrelated to the lives of the poor and underrepresented, we should at the very least, impart to them an informed sense of what the legal system looks like to many americans. if ignorance breeds intolerance, our teaching may be a potent antidote.”).] [10: see, grossman g., clinical legal education: history and diagnosis, journal of legal education, 26 (2) (1974), p. 173. see, also, maccrate, supra, p. 1111 (“[i]n 1968 the ford foundation took a decisive step in support of the … clinical education movement [by providing] a funding commitment of approximately $12,000,000.”); wizner s., the law school clinic: legal education in the interests of justice, faculty scholarship series paper 1843 (2002), p. 1933; holland, supra, p. 513-517. see also the booklet ford foundation grantees and the pursuit of justice, published by the ford foundation in 2000, which summarises the history and development of the foundation (available at https://www.fordfoundation.org/media/1707/2000-ford-foundation-grantees-and-the-pursuit-of-justice.pdf).] [11: see, wizner (2002), supra, p. 1933. see, also, dubin j., clinical design for social justice imperatives, 51 southern methodist university law review 1461 (1998), p. 1466 ([w]ithin a few years of [the formation of the ford foundation program] almost half of all law schools in the country had some type of a clinical program.”).] [12: see, barry, supra, p. 55. wizner s., beyond skills training, 7 clinical law review 327 (2001), p. 327 (“… the clinical approach to legal education has always been rooted in a social justice mission.”). see, also, dubin, supra, p. 1505 (“[a]s a widening gulf emerges between rich and poor in american society and access to legal services becomes further removed from subordinated communities, the importance of clinical legal education’s historic commitment to social justice becomes manifest. the need for law schools and universities to share their considerable resources in the struggle for justice and human dignity has scarcely been greater.”).] [13: see, dinerstein r., clinical scholarship and the justice mission, 40 cleveland state law review 469 (1992), p. 470-471 (“[s]ome of the best clinical scholarship examines the manner in which indigent clients experience the welfare system, housing court, and other settings that exist far from the esoteric world of appellate cases. … by studying the settings in which legal services are provided to poor people, clinical scholars also contribute to our understanding of both the incredible hardships under which legal services lawyers function and the ways in which they unknowingly may hinder their clients’ pursuit of justice.”).] while the outward purpose of legal clinics was being shaped, an academic debate on the educational value of clinical programs arose within universities; conservative faculty members opposed assigning academic credits to clinical activities, threatening their growth.[footnoteref:14] in fact, without acknowledgement that clinical activities were a worthy copartner to traditional classroom work, students would have perceived clinical work “as no more than a therapeutic outlet.”[footnoteref:15] this tension began to subside in the 1980s, after professors wizner and curtis published the seminal article “here’s what we do: some notes about clinical legal education”[footnoteref:16], which laid out their theory of clinical education, gathering widespread consensus. in their view, the clinical method of teaching law educated students to represent clients effectively in light of the social, economic and political implications of advocacy, and encouraged development of critical views of the legal system via the study and application of legal doctrines, theories, rules, procedure, and ethics.[footnoteref:17] coming full circle, their article invoked the writings of professor frank and articulated “the central belief … that professional education involves the constant interaction of the theoretical and the practical, not just in the classroom and the library, but also in the settings where the profession is actually practiced.”[footnoteref:18] [14: see, holland, supra, p. 524. see, also, tushnet m., scenes from the metropolitan underground: a critical perspective on the status of clinical education, 52 george washington law review 272 (1984), p. 273 (“[t]he impression of vulnerability [of clinical legal education] is strengthened by the presumption of many faculty members that clinical programs contain more unnecessary fat than do traditional classes.”). see, symposium: clinical legal education: reflections on the past fifteen years and aspirations for the future, supra, p. 342 (“[f]or clinical education, the confrontation with the legal education establishment has taken its toll … [and] the clinical education movement is in the throes of a serious identity crisis.”) and p. 344 (“skeptical faculty members demanded that clinicians offer students something more than they would learn in the first year of working in a law firm. ‘mere skills-training,’ faculty members argued, had no place in a university.”).] [15: stone a., legal education on the couch, harvard law review 85 (2) (1971), p. 427. see, also, aiken j. and wizner s., teaching and doing: the role of law school clinics in enhancing access to justice, 73 fordham law review 997 (2004) p. 999 (“[c]linicians were a different breed from their law professor counterparts. they were often housed in different spaces, not allowed to participate in faculty governance, and offered no job security.”).] [16: wizner s. and curtis d., here’s what we do: some notes about clinical legal education 29 cleveland state law review 673 (1980).] [17: see, wizner (2002), supra, p. 1930.] [18: holland, supra, p. 525.] clinical legal education is arguably the most significant reform in american legal education since christopher langdell’s invention of the case method.[footnoteref:19] today, law school clinics are a permanent part of the law school curriculum and continue to provide future generations of lawyers with a practical and theoretical education in law.[footnoteref:20] [19: see, wizner (2002), supra, p. 1934.] [20: see, holland, supra , p. 533. see, ellmann s. et al., why not a clinical lawyer-journal., 1 clinical law review 1 (1994), which proclaimed the formation of the clinical law review, a “peer-reviewed journal devoted to issues of lawyering theory and clinical legal education.”] after having illustrated the most significant milestones in the american clinical legal education movement, in the next section i will investigate important historical reasons why clinical education did not thrive in continental europe, specifically focusing on the italian context. then, i will analyze the current developmental patterns of italian clinical legal education and illustrate the next steps towards widespread dissemination of clinical models in law schools. ii. the current framework of italian clinical legal education in 1935, professor francesco carnelutti started advocating for the introduction of practical components in italian law schools’ curricula. similar to professor frank, he compared medical clinics with law clinics, but his attempt to revolutionise legal education fell flat.[footnoteref:21] [21: see, carnelutti f., clinica del diritto, 1 rivista di diritto processuale 12 (1935), available at http://www.romatreprisonlawclinic.it/images/articoli/carnelutticlinicadeldirittocompressed.pdf.] professor wilson investigated the reasons why clinical legal education did not find fertile grounds in european countries with a civil law tradition.[footnoteref:22] among these reasons, wilson included that civil law countries usually require mandatory periods of apprenticeship before entry into the legal profession. these traineeships are designed to accomplish the very goal of clinical legal education, which is to help students shift their focus from theory to practice just before becoming attorneys.[footnoteref:23] in italy, for example, law school graduates have to complete an 18 month internship with an experienced attorney before sitting for the bar exam. [22: see, wilson r., western europe: last holdout in the worldwide acceptance of clinical legal education, 10(7) german law journal 823 (2009), p. 831-836. professor wilson’s research specifically considered the cases of germany and france, but his findings can also be applied to italy because of its comparable framework. for an analysis of how the movement towards uniformity in legal education that followed the bologna process of 1999 affected the development of clinical education in germany, see bücker a. and woodruff w., the bologna process and german legal education: developing professional competence through clinical experiences, 9 german law journal 575 (2008). for a perspective on experiential learning in france, see lempereur a., negotiation and mediation in france: the challenge of skill‐based learning and interdisciplinary research in legal education, 3 harvard negotiation law review 151, (1998). for a perspective on how the differences between civil and common law approaches impacted on the growth of clinical programs in europe, see, also, genty p. m., overcoming cultural blindness in international clinical collaboration: the divide between civil and common law cultures and its implications for clinical education, 15 clinical law review 131 (2008).] [23: see, wilson (2009), supra, p. 832.] further, european civil law universities have large size classes of student entering law school immediately after high school; conversely, in the united states law schools are only open to applicants who have already graduated from college.[footnoteref:24] in addition, the elevated cost of legal education in the united states naturally limits the number of students that enroll. the clinical teaching model, which requires professors to closely supervise clinical participants, is generally better served by a small class size, favoring the american model. [24: see, wilson (2009), supra, p. 834.] wilson also noted that the majority of european civil law attorneys practice in small law firms and/or as solo practitioners.[footnoteref:25] pro bono clinics that offer legal services for a nominal fee have the potential to tremendously impact the capacity of attorneys to attract business from low income clients.[footnoteref:26] therefore, the hostility of practicing attorneys towards the clinical movement might have also played a role in the lack of success of clinical legal education in continental europe.[footnoteref:27] [25: see, wilson (2009), supra, p. 834-835.] [26: see, wilson (2009), supra, p. 834-835. see, also, bartoli c., legal clinics in europe: for a commitment of higher education in social justice, diritto & questioni pubbliche (2016), available at , http://www.dirittoequestionipubbliche.org/page/2016_nse_legal-clinics-in-europe/dq_2016_legal-clinics-in-europe_specialissue.pdf, p. 94 (“bar association[s] …[are] often suspicious that clinics could steal the[ir] market.”).] [27: see, wilson (2009), supra, p. 834-835.] as a result, the 20th century american debate on clinical legal education did not pervade italian academia and discussions concerning clinical programs in italy started developing mainly after the bologna process of 1999 via conferences, seminars and papers.[footnoteref:28] [28: the bologna process is a series of ministerial meetings and agreements between european countries to ensure comparability in the standards and quality of higher-education; see, hovhannisian l., clinical legal education and the bologna process, 2 public interest law initiative papers 1 (2006), p. 4. see, also, aksamovic d. and genty p., an examination of the challenges, successes and setbacks for clinical legal education in eastern europe, 20 international journal of clinical legal education 427 (2014), p. 438 (“… in the last 15 or 20 years [clinical legal education] spread across central and eastern europe. … [today] the concept of [clinical legal education] is not unknown any more to european legal educators.”). examples of reports, seminars and papers concerning italian academia include barbera m., the making of a civil law clinic, university of brescia, available at file:///c:/users/utentepc/downloads/gravity_forms_12_2011_08_marzia%20barbera%20-%20brescia%20legal%20clinic%20-%20final-1%20(4).pdf; smorto g. et al., clinica legale. un manuale operativo, edizioni next (2015), available at http://clinicalegale.it/wp-content/uploads/2015/03/clinica-legale-un-manuale-operativo.pdf; cruciani l., «and justice for all». accesso alla giustizia e «law clinics» come beni comuni, rivista critica del diritto privato 307 (2012); winkler b., “imparare facendo” cosa sono le cliniche legali e perché vale la pena introdurle nelle facoltà di giurisprudenza, seminar report, university of brescia (2010); heritier p., “vico e le law and humanities nella clinica legale della disabilità e della vulnerabilità”, seminar on law and humanities (2015); carnevale g., “law clinic. lo sportello ‘diritti in carcere’ promosso dal dipartimento di giurisprudenza dell’università degli studi di roma tre e da antigone”, report (2016); battelli e. et al., un sistema di giustizia a misura di minore: il ruolo delle legal clinics, aracne editrice s.r.l. (2012).] according to a recent survey conducted by bartoli, as of 2015, italy had 21 legal clinics in 13 different towns.[footnoteref:29] despite the fact that law school clinics are still very limited in number, it is possible to identify a developing italian movement for clinical legal education, which is slowly and steadily increasing.[footnoteref:30] this evolution has recently experienced a boost thanks to the creation of the european network for clinical legal education (encle) in 2013, whose goals include building a community of academics and practitioners involved in the promotion of justice and of quality of law teaching through clinical legal education.[footnoteref:31] [29: see, bartoli c., the italian legal clinics movement: data and prospects, 22(2) international journal of clinical legal education 213 (2015), p. 213, available at: http://www.northumbriajournals.co.uk/index.php/ijcle/article/view/427/811.] [30: see, bartoli (2015), supra, p. 214. see, also, bartoli (2016), p. 59 (“[t]he data shows … that we are not simply in the presence of a proliferation of individual clinics, but the emergence of a new trend in academia should be conveyed.”).] [31: see, http://www.encle.org/about-encle. see, also, tomoszek m., the growth of legal clinics in europe faith and hope, or evidence and hard work? 21 international journal of clinical legal education (2014), and the european network of clinical legal education: the spring workshop 2015, 22 international journal of clinical legal education (2015).] the current geographical distribution of law school clinics in italy shows a greater presence in the northern areas (universities of turin, brescia, milan, bergamo and verona), a sporadic presence in the central territories (universities of florence, perugia, teramo and rome), and few locations in the south and the islands (universities of naples, bari, sassari and palermo). bartoli, c., the italian legal clinics movement: data and prospects, fig. 3, p. 4. as per the financial side of clinical education, “[m]oney is not the brightest aspect of this story.”[footnoteref:32] in fact, in 88% of the cases, clinics’ annual budgets range from zero to approximately 15,000 euro, and in most instances, scholars work on clinical activities without additional economic benefits and are forced to allocate funds earmarked for their research to allow clinics to survive.[footnoteref:33] moreover, the administrative staff usually works in the clinic for no pay.[footnoteref:34] [32: bartoli (2015), supra, p. 216.] [33: see, bartoli (2015), supra, p. 217-218.] [34: see, bartoli (2015), supra, p. 217-218.] in addition, in italy there is no public funding available for pro bono mediation programs. european funding exists but, as bartoli noted, clinical programs face a highly selective process for limited resources, which makes obtaining european grants difficult and unlikely.[footnoteref:35] in fact, “only 6% of clinics benefits from european funds.”[footnoteref:36] [35: see, bartoli (2016), supra, p. 16.] [36: bartoli (2016), supra, p. 49-50 (when asked “«have you ever thought about participating in a european call for funding, in order to fund the activities of your legal clinic?» … less than 10% of the respondents [answered that they] are not interested in union grants because they do not need them. the remainder would like to receive [european funding] but 25% have not tried because they believe that applying for european action grants is too complicated [given that] as many as 50% [of the programs] did not fit the right criteria. 10% submitted an application that had not been accepted [and] about 7% ha[d] applied and received funding.”).] bartoli, c., the italian legal clinics movement: data and prospects, fig. 4 and 5, p. 5-6. given these economic constraints, italian clinics must be creative and open to experimentation to succeed.[footnoteref:37] the absence of common standards and institutionalisation requires each clinical program to find its own unique solution to justify its place on the official law school curriculum. some of the most adopted options include (i) an elective seminar with credits; (ii) an internship period required to become a qualified italian lawyer after graduation; (iii) a post-degree course; (iv) pro bono activity.[footnoteref:38] [37: see, bartoli (2015), supra, p. 220.] [38: see, bartoli (2015), supra, p. 219.] in this apparently precarious framework, it must be noted that a common educational methodology is shared among all the italian law clinics.[footnoteref:39] this method consists of limiting lectures and favoring more interactive activities such as role-play, collaborative problem-solving, and above all, participation in the resolution of real cases in collaboration with lawyers.[footnoteref:40] interestingly, and in contrast to the american experience, bartoli noted that such a practical teaching style is promoted by the most theoretical members of the law faculty, who encourage and welcome a shift through a more practical and socially committed conception of law and of the profession.[footnoteref:41] [39: see, bartoli (2015), supra, p. 220.] [40: see, bartoli (2015), supra, p. 220. see, also, smorto g. et al., supra, p. 14-16.] [41: see, bartoli (2015), supra, p. 214.] finally, almost all italian clinics show a strong vocation for social justice.[footnoteref:42] in particular: [42: see, bartoli (2015), supra, p. 222. for a perspective on the commitment to social justice and educational reform of the immigration law clinic at the university of roma tre and the health and environmental law clinic at the university of perugia, see marella m.r. and rigo e., le cliniche legali, i beni comuni e la globalizzazione dei modelli di accesso alla giustizia e di lawyering, 33(4) rivista critica del diritto privato (2015).] i. italian law school clinics mainly focus on matters concerning prisons, anti-discrimination, migration, asylum, and human rights. bartoli, c., the italian legal clinics movement: data and prospects, fig. 10, p. 10. ii. italian law students who participate in clinical activities develop a consistent commitment to social justice. bartoli, c., the italian legal clinics movement: data and prospects, fig. 9, p. 9. one possible explanation for this widespread commitment to social justice is that the educational framework originally developed in the united states was imported to italy without modifications by italian academics who studied in american law schools. thus, it is possible that the social justice vow developed in the context of american law schools did not develop organically in italy, and was internalised by default. finally, in relation to future developments in italian clinical legal education, bernardini argued that the goal of law school curricula should be to introduce students to the clinical model, shaping a new generation of lawyers that can think critically about the legal system in light of societal needs.[footnoteref:43] the clinical legal education model, which bernardini defined significantly unimplemented in italian academia, can teach students how to effectively apply the knowledge acquired in the classroom to their practical experiences with the justice system.[footnoteref:44] [43: see, bernardini m. g., le cliniche legali e l’identità del giurista: spunti per un inquadramento teorico, 27 diritto & questioni pubbliche 437 (2017) p. 453-454.] [44: see, bernardini, supra, p. 453-454.] for these reasons, the next step in advancing clinical legal education is creating more legal clinics within italian law schools. the following section discusses why mediation naturally lends itself to the development of an italian legal clinic and discusses the experience of distinguished scholars in founding and evolving clinical programs on mediation. b. founding a mediation clinic after having analysed the current framework of italian legal clinical education, in this section i consider why mediation is particularly suited to being incorporated in a clinical program in italy. then, i discuss the history of the columbia law school mediation clinic through the words of its founder, professor carol liebman, and analyse the framework and goals of the newly formed columbia law school advanced mediation clinic via an interview with the current director of the mediation clinics, my mentor professor alexandra carter. the purpose of these interviews was to access institutional knowledge and experience to inform the founding of a clinic, as to not “reinvent the wheel.” finally, i describe the scope of the collaboration with libera università maria ss. assunta (lumsa). i. the italian legal framework for mediation in recent years, the european legislature strongly promoted the use of mediation. in particular, directive 2008/52/ec (“directive”) introduced a minimum legal framework applicable in all the member states to harmonise fundamental rights and principles in relation to mediation in cross-border civil and commercial matters.[footnoteref:45] [45: see, in particular, recital 7 of directive 2008/52/ec of the european parliament and of the council of 21 may 2008 on certain aspects of mediation in civil and commercial matter, available at: http://eur-lex.europa.eu/lexuriserv/lexuriserv.do?uri=oj:l:2008:136:0003:0008:en:pdf. see, generally, birch e., the historical background to the eu directive on mediation, 72(1) arbitration: the journal of the chartered institute of arbitrators 57 (2006) and bleemer r., the directive is in: european union strongly backs cross-border mediation, 26(6) alternatives to the high cost of litigation 119 (2008). comparatively, in the united states there is no uniformity; every state is free to autonomously regulate the practice of mediation, and most states decided not to regulate the field.] the guidelines included in the directive provide for a voluntary mediation model that leaves freedom to the parties to participate in and terminate the process at any time.[footnoteref:46] however, courts are allowed to set procedural time-limits to regulate the duration of the process, according to relevant national laws.[footnoteref:47] moreover, courts are encouraged to draw parties’ attention to mediation whenever appropriate and useful to achieve conflict resolution and national legislations might make the use of mediation compulsory or subject to incentives and/or sanctions, as long as such legislation does not hinder the parties’ right of access to the judicial system.[footnoteref:48] [46: see, recitals 13 and 14 of directive 2008/52/ec.] [47: see, recitals 13 and 14 of directive 2008/52/ec.] [48: see, article 8 and recitals 13 and 14 of directive 2008/52/ec.] in implementing the guidelines, member states should aim at preserving the flexibility of the mediation process and the self-determination of the parties, as well as at ensuring that the procedure is conducted in an effective, impartial and competent way.[footnoteref:49] mediators should be made aware of the existence of the european code of conduct for mediators, available to the general public on the internet.[footnoteref:50] additionally, under article 4 of the directive, member states shall encourage by any means which they consider appropriate the development of and adherence to voluntary codes of conduct by mediators and organisations that provide mediation services, as well as other effective quality control mechanisms. [49: see, recital 17 of directive 2008/52/ec.] [50: see, recital 17 of directive 2008/52/ec. the european code of conduct for mediators is available online at http://ec.europa.eu/civiljustice/adr/adr_ec_code_conduct_en.pdf. for an analysis of the limitations of the european code of conduct for mediators, see menkel-meadow c., regulation of dispute resolution in the united states of america: from the formal to the informal to the “semi-formal”, in regulating dispute resolution: adr and access to justice at the crossroads: steffek f. et al., hart (2013), p. 426.] article 6 of the directive provides that member states shall ensure the possibility for the parties to request that the content of a written agreement resulting from mediation be made enforceable, unless either the content of that agreement is contrary to the law of the member state where the request is made or the law of that member state does not provide for its enforceability.[footnoteref:51] in addition, the content of an agreement resulting from mediation that has been made enforceable in a member state should be recognised and declared enforceable in the other member states, in accordance with applicable european or national provisions.[footnoteref:52] [51: see, also, recital 19 directive 2008/52/ec.] [52: see, recital 20 of directive 2008/52/ec.] finally, mediation is intended to take place in a manner that respects confidentiality. in the absence of relevant exceptions contained in article 7 of the directive or unless the parties agreed otherwise, member states shall ensure that neither mediators nor those involved in the administration of the process shall be compelled to give evidence in civil and commercial judicial proceedings or arbitration regarding information shared during the mediation process. the italian legislature chose to implement most of the european guidelines even to its internal mediation process, as provided for by recital 8 of the directive.[footnoteref:53] with article 60 of the law n. 69 of june 18, 2009 (legge n. 69 del 18 giugno 2009),[footnoteref:54] the parliament authorised the government to transpose the content of the directive into one or more legislative decrees.[footnoteref:55] the government exercised its power via legislative decree n. 28 of march 4, 2010 (decreto legislativo n. 28 del 4 marzo 2010),[footnoteref:56] which created a national framework for the regulation of mediation in civil and commercial matters.[footnoteref:57] legislative decree n. 28 of march 4, 2010 (“legislative decree”) did not merely replicate the content of the directive, but included unique features and policy considerations that created an original model.[footnoteref:58] [53: for a detailed analysis of content of directive 2008/52/ec and its internalisation into the italian legal system, see , trocker n. and de luca a., la mediazione civile alla luce della direttiva 2008/52/ce, firenze university press (2011), p. 69-195; reale m. c., la mediazione civile e l’europa, 1 sociologia del diritto 95 (2014).] [54: available at: http://www.parlamento.it/parlam/leggi/09069l.htm.] [55: for a comprehensive analysis of the debate concerning the implementation of directive 2008/52/ec in the italian legal system, see de palo g. and keller l., the italian mediation explosion: lessons in realpolitik, 28(2) negotiation journal 181 (2012), p. 190-193.] [56: available at: http://www.camera.it/parlam/leggi/deleghe/10028dl.htm.] [57: in the italian system, legislative decrees (decreti legislativi) are sanctioned by article 76 of the constitution and are commonly used to implement the content of european directives into national legislation. for a comprehensive analysis of the italian framework, see sorrentino, f., le fonti del diritto italiano, cedam (2015). see, also, lupo, n., il ruolo normativo del governo, il filangieri. quaderno/associazione per le ricerche e gli studi sulla rappresentanza politica nelle assemblee elettive (2010); pizzorusso, a., l’ampliamento dei poteri normativi dell'esecutivo nei principali ordinamenti occidentali a cinquant'anni dal saggio di enzo cheli, in lo stato costituzionale la dimensione nazionale e la prospettiva internazionale: scritti in onore di enzo cheli, a cura di paolo caretti e maria cristina grisolia, il mulino, bologna (2010).] [58: see, canale g., il decreto legislativo in materia di mediazione, 65(3) rivista di diritto processuale 616 (2010) p. 618 (the legislative decree included significant modifications – “significative modifiche” – from the framework authorised by the parliament, which reflected the content of the directive).] article 3 of the legislative decree requires organisations that offer mediation services to be part of a register maintained by the ministry of justice and to adopt codes of conduct and regulations that ensure impartiality, competency and confidentiality.[footnoteref:59] as further clarified by articles 9 and 10, confidentiality is strongly protected; it extends by default to everyone that participated in the proceedings in any capacity and prevents disclosure of information shared in mediation in the event the dispute is later brought to court. to guarantee self-determination, however, parties remain free to exclude any duty of confidentiality. to assure impartiality, article 14 charges mediators with a duty to sign a declaration of impartiality before taking on a case. [59: see, also, article 16 of the legislative decree.] article 4 imposes a duty on lawyers to inform their clients of the possibility of using mediation before litigating. in the event that lawyers fail to properly inform their client in writing, the contract of representation is voidable.[footnoteref:60] article 5 of the legislative decree states that disputes involving landlords/tenants, rights in rem, inheritances, medical malpractice, defamation, damages caused by vehicles and boats, consumers and banks/insurances companies must go through mediation as a preliminary condition to access the court system. thus, this provision effectively introduced mandatory mediation for selected disputes and gave the option to the parties to voluntarily select mediation for residual matters.[footnoteref:61] [60: see, article 4 of the legislative decree.] [61: see de palo g. and keller l., supra, p. 184 (“italy used the need to implement the european mediation directive … [to introduce] mandated pretrial meditation for some civil and commercial disputes. [this was] a dramatic step … it was, however, a necessary step given that … italian litigants have failed to embrace mediation and instead have continually chosen to bring their cases to the overburdened, slow, and inefficient judicial system.”). the authors also note that in 2010 “the case backlog in italy grew to 5.4 million cases with parties waiting an average of eight years for their day in court.” (see, p. 183). for a different view on mandatory mediation see, giuggioli p., la mediazione per la conciliazione: strumento utile se scelto liberamente dalle parti, quarto rapporto sulla diffusione della giustizia alternativa in italia 147 (2011), p. 155. giuggioli argues that only a non-mandatory mediation scheme can positively affect the backlog of pending civil cases and preserve the principle of self-determination of the parties. in 2012, the italian constitutional court declared the unconstitutionality of certain provisions of the legislative decree concerning the introduction of mandatory mediation as a precondition to have access to the court system because the government exceeded the mandate to legislate conferred upon it by the parliament (see, opinion of the italian constitutional court n. 272 of december 6, 2012, available at: https://www.cortecostituzionale.it/actionschedapronuncia.do?anno=2012&numero=272).] article 12 states that the agreement reached by the parties can be made enforceable by the court after a lightened scrutiny focused on certifying that the arrangements made are not contrary to public policy or against the law. the approved agreement is exempted from any fee when its value is under €50.000 and it represents valid legal title to obtain repossession and commence an attachment proceeding.[footnoteref:62] [62: see, article 12 of the legislative decree.] the legislative decree also delegated to the ministry of justice the task of identifying detailed technical provisions concerning, in particular, educational requirements imposed on registered mediation service providers and costs of the proceedings.[footnoteref:63] minister of justice decree n. 180 of october 18, 2010 (decreto del ministro della giustizia n. 180 del 18 ottobre 2010)[footnoteref:64] completed the legal framework of italian mediation, determining the criteria that educational institutions must follow in order to be included in the register for organisations qualified to educate mediation practitioners.[footnoteref:65] [63: see, articles 16 n. 2 e 5 and 17 n. 4 of the legislative decree.] [64: available at: http://www.gazzettaufficiale.it/gunewsletter/dettaglio.jsp?service=1&datagu=2010-11-04&task=dettaglio&numgu=258&redaz=010g0203&tmstp=1289296032495. ] [65: ministerial decree n. 180 of october 18, 2010 was partially modified by ministerial decree n. 145 of july 6, 2011 (decreto ministeriale n. 145 del 6 luglio 2011, available at: http://www.normattiva.it/uri-res/n2ls?urn:nir:stato:decreto.ministeriale:2011-07-06;145!vig=) to address limited reservations expressed by the state attorney office (avvocatura dello stato).] as provided by article 18 of ministerial decree n. 180 of october 18, 2010 (“ministerial decree”), registered organisations must have a share capital of at least €10.000, a physical location, honorable members, a minimum of five competent and qualified educators, trainings of at least 50 hours on mediation theory, practice, and role-play for a maximum of 30 participants, a final test of 4 hours or more on both theory and practice. the trainings must focus on national, european and international mediation rules, facilitative and evaluative methodologies, contractual mediation clauses, form, content and effects of requests to mediate and mediation agreements, duties and responsibility of mediators. in addition, the institutions must organise advanced trainings of the duration of 18 hours every two years and provide for the online publication of information concerning its trainings. educational institutions must also appoint an individual with a strong reputation and experience in the field of mediation as coordinator of their programs. shortly after the ministerial decree was introduced, it became clear that the adopted provisions were not sufficient to adequately address some controversial procedural and substantive issues. the ministry of justice then started adopting ministerial circulars and directives to remedy the emerged deficiencies.[footnoteref:66] to safeguard the quality of the process, ministerial circular of june 13, 2011 (circolare ministero della giustizia del 13 giugno 2011)[footnoteref:67] restricted the practice of mediation to individuals who hold a three-year university degree or are registered with certain professional associations and limited the role of educators to practitioners who produced scientific publications on mediation in journals with nationwide diffusion. ministerial circular of december 20, 2011 (circolare ministero della giustizia del 20 dicembre 2011)[footnoteref:68] addressed problematic aspects concerning supervision and control over the registered mediation institutions, continued education, case assignment and conclusion of the proceedings. ministerial circulars of november 27, 2013 (circolare ministero della giustizia del 27 novembre 2013)[footnoteref:69] and of december 3, 2013 (circolare ministero della giustizia del 9 dicembre 2013)[footnoteref:70] better defined the role of attorneys in the mediation process, stating that attorneys cannot act as mediators without being affiliated to a registered institution. ministerial circulars of november 15, 2013 (circolare ministero della giustizia del 15 novembre 2013)[footnoteref:71] and of october 22, 2014 (circolare ministero della giustizia del 22 ottobre 2014)[footnoteref:72] laid out the procedure that registered mediation service providers must follow to report statistical returns on their mediations. [66: for a comprehensive summary of all the provisions concerning mediation in italy, see https://www.giustizia.it/giustizia/prot/it/mg_1_8.wp?selectednode=0_18.] [67: available at: https://www.giustizia.it/giustizia/it/mg_1_8_1.page;jsessionid=nrbhad2uqbjxqjhhqhjoxjt2?facetnode_1=1_1(2011)&facetnode_2=1_1(201106)&facetnode_3=0_10&contentid=sdc645583&previsiouspage=mg_1_8.] [68: available at: https://www.giustizia.it/giustizia/it/mg_1_8_1.page?facetnode_1=0_18&contentid=sdc718215&previsiouspage=mg_1_8. ] [69: available at: https://www.giustizia.it/giustizia/it/mg_1_8_1.page?facetnode_1=0_18&contentid=sdc971358&previsiouspage=mg_1_8. ] [70: available at: https://www.giustizia.it/giustizia/it/mg_1_8_1.page?facetnode_1=0_18&contentid=sdc974986&previsiouspage=mg_1_8. ] [71: available at: https://www.giustizia.it/giustizia/it/mg_1_8_1.page?facetnode_1=0_18&contentid=sdc964753&previsiouspage=mg_1_8. ] [72: available at: https://www.giustizia.it/giustizia/it/mg_1_8_1.page?facetnode_1=0_18&contentid=sdc1076192&previsiouspage=mg_1_8. ] in 2014, minister of justice decree n. 139 of august 4, 2014 (decreto del ministro della giustizia n. 139 del 4 agosto 2014)[footnoteref:73] modified the ministerial degree, adding article 14-bis on conflict of interest. in particular, the new provision declared that a mediator affiliated with an organisation cannot: [73: available at: http://www.normattiva.it/uri-res/n2ls?urn:nir:stato:decreto.ministeriale:2014-08-04;139!vig=. ] · be a party in a mediation administered by that organisation nor assist parties in relation to disputes that are pending; · mediate a dispute in case she is personally related to, acquainted with or had a professional relationship in the past two years with any of the parties; · maintain a professional relationship with any of the parties during the two years that follow resolution of a case. interestingly, article 14-bis expressly incorporates by reference the provisions of article 815 of the italian code of civil procedure, which lists the situations in which arbitrators must recuse themselves because of a conflict of interest. in applying the same conflict of interest rules to both arbitrators and mediators, the italian government decided to set a uniform standard. however, after the introduction of article 14-bis it remained unclear whether the principles of autonomy and self-determination allowed the parties to knowingly appoint a mediator with an apparent conflict of interest. ministerial circular of july 14, 2015 (circolare ministero della giustizia del 14 luglio 2015)[footnoteref:74] determined that the importance of preventing conflict of interest and guaranteeing that mediators are both neutral and impartial is such that the parties are prohibited from appointing a conflicted mediator.[footnoteref:75] [74: available at: https://www.giustizia.it/giustizia/it/mg_1_8_1.page?facetnode_1=0_18&contentid=sdc1164399&previsiouspage=mg_1_8. ] [75: see, perrotta g., il conflitto di interessi tra la figura del mediatore civile e quella dell’avvocato: i chiarimenti del ministero della giustizia, 2(2) la nuova giustizia civile 43 (2015), p. 46.] in april of 2016, however, the regional administrative court of latium (tribunale amministrativo regionale del lazio) annulled article 14-bis and the ministerial circular of july 14, 2015 because the government exceeded the authority conferred upon it by the parliament.[footnoteref:76] in fact, the court noted that legislative decree n. 28 of march 4, 2010 did not confer upon the government any power to regulate on mediators’ conflict of interest.[footnoteref:77] the court also observed that regulations and codes of conduct adopted by registered organizations assume a central role in the mediation process, including the function of exclusively stating the criteria that assure that mediators are substantially impartial and neutral.[footnoteref:78] [76: see, tar lazio roma, sez. i, judgment n. 3989 of april 1, 2016, available at: http://webcache.googleusercontent.com/search?q=cache:otyvz6tpafyj:www.ordineavvocaticivitavecchia.it/wp-content/uploads/2015/10/sentenza-tar-lazio-n.-3989-del-2016.docx+&cd=20&hl=en&ct=clnk&gl=us.] [77: see, tar lazio roma, sez. i, judgment n. 3989 of april 1, 2016, supra.] [78: see, tar lazio roma, sez. i, judgment n. 3989 of april 1, 2016, supra. article 7(3) of the minister of justice decree n. 180 of october 18, 2010 states that the regulations adopted by registered mediation service providers must include provisions concerning mediators’ conflict of interests.] since the appearance of the directive in 2008 the italian legal framework on mediation keeps evolving at a fast pace and often in a disjointed way, as demonstrated by the various governmental interventions that repeatedly clarified, corrected and modified previously obscure provisions. the normative patchwork adopted by the government was capable of addressing only specific issues at a time, demonstrating obvious shortcomings in the regulation of mediation as a whole, and partially failed to survive the judicial scrutiny of the courts. many controversial and difficult ethical, substantive and procedural questions posed by mediation remain left to the interpretation of individual practitioners and organisations.[footnoteref:79] this relativism certainly creates tensions that only an organic and structured development of mediation theory and practice can solve. [79: see, de palo g. and keller l., supra, p. 197 (“[w]hether the italian mediation decree will ultimately be a successful measure for italian dispute resolution is uncertain, and the practical and scholarly debates on the more controversial aspects of the law will continue.”). ] despite this clear educational need, to this day very few italian law schools include specific courses concerning the theory and practice of mediation. to solve this deficit and prepare future practitioners in the field of mediation, a clinical program focused on mediation would: · comply with all the requirements imposed on mediation service providers for admission to the register maintained by the ministry of justice;[footnoteref:80] [80: see, article 18 of the legislative decree, above.] · provide students with foundational skills and understanding of theory and practice of mediation; · guarantee substantial opportunities to gather practical experience. because mediation is a flexible and relatively expedite process within just a semester students would be able to observe the entire cycle of many disputes, from their inception to potential resolution; · offer chances to practice mediation directly and under the supervision of experienced practitioners, fulfilling the learning-by-doing approach typical of clinical legal education; · foster the social justice commitment of clinical education. the potential scope of mediation is limited only by the creativity of the people who practice it; mediation services can be provided at nominal or at even no fee in settings that range from two parties in conflict to large communities in disagreement, covering a wide spectrum of disputes; · operate both in formal contexts, like a court room, and in more informal places, like the law school premises or private locations; · interplay with many other courses in the law school curriculum, for example family law, civil law, international law, negotiation, etc. after having illustrated the need for and potential of an italian mediation clinic, i will dedicate the upcoming sections to the experiences of two great mediation scholars in founding, developing and advancing clinical programs on mediation in the united states. these sections are designed to share insightful knowledge and practical guidance that can inform the creation and growth of an italian mediation clinic. ii. how to create a mediation clinic: the columbia law school example having observed the potential educational impact and benefits of a mediation clinical program, i will now discuss the steps necessary to set up a mediation clinic program, taking advantage of the institutional knowledge provided by professor carol liebman, founder of the columbia law school mediation clinic.[footnoteref:81] [81: as mentioned in the first paragraph of section b, above, the information that follows concerning professors liebman and carter comes from a series of interviews that i personally conducted with them in 2016-2017.] professor liebman’s interest in mediation developed while representing the massachusetts state department of correction in federal civil rights cases brought by prisoners. she understood that issues raised by inmates frequently did not amount to the civil rights violations they claimed; they mainly involved managerial problems that litigation could not properly address. in fact, litigation fell short in helping people to engage in dialogue and to understand interests and worries behind their respective positions. professor liebman saw a need to find mutually acceptable solutions that considered both parties’ concerns, and realised that prison grievance panels which used a mediation approach were the most appropriate tool because they could achieve broader results than adjudicative dispute resolution methods, as well as satisfy various needs. in particular, mediation could empower parties to engage in a productive conversation in order to reach a solution that is satisfying, durable and flexible. while teaching in the legal aid clinic, professor liebman continued to practice mediation as a volunteer mediator, attend conferences, and network with practitioners within the mediation community. during this time, the dean of boston college law school asked her to run a simulation course on mediation. her original curriculum included a day and a half training on basic skills and role plays, followed by weekly interactive classes, lectures and discussions concerning mediation theory, practice and policy issues.[footnoteref:82] when liebman moved to columbia law school, she founded the mediation clinic.[footnoteref:83] the clinic year began with four days of intensive skills training spread over two weekends followed by closely supervised mediation of actual cases and weekly classes. in addition, students were required to write journals that analysed their mediation experiences. journals created an opportunity for students to self-reflect; they had to review their practical conduct in light of the guidelines learned in class and through the assigned readings. moreover, professor liebman committed to read all the journals and to provide students with prompt, regular, and tailored feedback. [82: among the benefits of having interactive group conversations led by students, professors bryant and milstein include that students “(1) … can immediately see relevance to their work; (2) … develop insights for contextual thinking, explore professional identity, and find support for stressful work; (3) … apply, test, and refine lawyering theory while simultaneously developing professional norms.”; see, bryant s. and milstein e., rounds: a “signature pedagogy” for clinical education?, 14 clinical law review 195 (2007), p. 206-207.] [83: for an analysis of the history and development of columbia law school’s clinical programs given directly by the founding faculty members, see the video-conference “history in the making: the origins of clinical education at columbia law school”, available at http://www.law.columbia.edu/clinics-celebration-2015/recap/videos#history.] simultaneously, professor liebman had to perform extensive outreach work to identify suitable organisations to partner with in order to find a solid caseload capable of providing clinical students with opportunities to mediate on a weekly basis. this was one of the most challenging tasks; it required considerable time and effort to create and continuously nurture relationships with partner institutions. in addition, she used to personally supervise every mediation (up to five every week). liebman later used teaching assistants to oversee some of the mediations, achieving two goals. first, professor liebman gained more freedom to perform other activities necessary to run the clinic. further, alumni of the clinic had the valuable opportunity to observe, advise, and coach other students, reinforcing their skills and gaining academic credits for their work. after hearing about the development of the columbia law school mediation clinic, i asked professor liebman to recommend some best practices for creating a new mediation clinic. she suggested the adoption of a: 1. non-evaluative model, which gives inexperienced students freedom to learn the basic principles of mediation without providing legal advice; and 2. co-mediation system, which relieves individual students of some pressure, builds team collaboration, and helps understanding different individual mediation styles. lastly, she emphasised the importance of focusing on teaching the boundaries of confidentiality, clearly explaining its limits and exceptions. after having described the development of the columbia law school mediation clinic, the next section will illustrate how the original educational framework recently evolved into an advanced model. this addition to the clinical programs at columbia law school was designed to provide students with the opportunity to enhance the lawyering skills internalized in the mediation clinic, to mentor other students and to encourage both creativity and responsibility via the creation of original educational content and management of the trainings. iii. the columbia law school advanced mediation clinic before the creation of the columbia law school advanced mediation clinic, professor alexandra carter and lecturer in law shawn watts received various requests from outside organisations to develop projects and ad hoc mediation training sessions. they would either embark into these tasks individually or with selected students, but without being able to provide a continuous learning experience. this state of affairs changed in the summer of 2016, when the mediation clinic signed a partnership with the united nations to provide a series of conflict resolution trainings that lie in the intersection of alternative dispute resolution and several of the united nations’ sustainable development goals. at that point, carter and watts had a solid source of work to develop a new generation of clinical education programing within columbia law school; students who showed commitment and performed well academically while in the mediation clinic had an opportunity to work closely with the clinical faculty, receiving insights on how to teach mediation, run a clinic, and advance the goals of the advanced mediation clinic. in particular, the advanced mediation clinic’s students are expected to help the faculty members to (i) promote the use of mediation across the country and internationally; (ii) discuss critical issues along the growth edge of mediation practice, like language barriers, generational gaps, cultural differences, ethical dilemmas; (iii) further their understanding of various styles of mediation; (iv) actively participate in designing customised curricula concerning conflict resolution methods; (v) have direct interactions with clients; (vi) act as teaching assistants, coaching other students through discussion of common issues experienced; and (vii) assist in building a strong community of colleagues who support each other in pursuing individual interests concerning theory and practice of mediation. in addition to the activities relating to the established partnership with the united nations, the first year of the advanced mediation clinic was characterised by the development of new projects initiated by graduates of the mediation clinic. after a nationwide rise in political polarisation that followed the 2016 united states presidential election, an alumnus and current associate at morrison and foerster llp approached the partnership and proposed teaming up with the columbia law school advanced mediation clinic to create a conflict resolution training seeking to empower attorneys and staff with tools to safely deal with political and identity-related conflicts. a group of students created a custom-designed conflict de-escalation training that focused on best practices to approach micro-aggressions outside the work environment. the training was successfully run at the firm’s san francisco and new york offices, making morrison and foerster llp the first major law firm to host such events. in the spring of 2017, an alumna who was clerking for the alaska court of appeal approached professor carter and lecturer watts to perform training on mediation skills and ethics in anchorage, alaska. students from the advanced mediation clinic designed a tailored training focused on facilitative mediation, party self-determination, language, generational, and cultural barriers. the training was conducted before a crowd of alaska state judges, mediators from local small claim courts, and lawyers of the anchorage bar association, who actively engaged in the session and contributed to the success of this event. picture of the author facilitating part of the mediation training in anchorage, alaska. not to mention, the columbia law school advanced mediation clinic has other positive and ground breaking effects. first, it offers students opportunities to develop curricula, run trainings and learn how to teach, which are extremely beneficial skills for students who want to pursue a career in academia, and usually lay outside most of law schools’ academic offerings. second, it generates revenue in the forms of donations, which help the clinic fund its other pro bono projects. lastly, it keeps alumni connected with the mediation clinic community after graduation, helping them promoting mediation in different practice areas and countries. in conclusion, columbia law school advanced mediation clinic’s first year was a great success. this model shows extraordinary potential for fostering the goals of clinical education and offers other law schools incentives to implement similar programs in their curricula. having described the evolution of columbia law school’s mediation programs, i will now discuss the inception and evolution of the relationship with lumsa and the dialogue that identified the mediation services that the clinic ought to offer. iv. vision for an italian mediation clinic: the lumsa project in the context of my activities both in columbia law school’s mediation clinic and advanced mediation clinic, i started advocating for the promotion of mediation in italy, receiving great support from professor carter and lecturer watts, as well as from the law faculty of libera università maria ss. assunta (lumsa) to pursue the ambitious goal of laying the foundations for an italian mediation clinic. in december 2016, i met in rome with lumsa professor emanuele odorisio to discuss the scope of my research and how to implement it within lumsa’s curriculum. at that time, lumsa was in the process of starting its first clinic on employment litigation and was thinking about other ways to expand its legal clinics programs. we wanted to identify the core structure of the proposed mediation clinic, mindful of the financial budget that lumsa could invest in the creation and operation of the proposed clinic—which was in line with the majority of italian law schools, as seen in paragraph a.ii. in particular, we had to pinpoint what kind of mediation services the clinic would provide to the public and how to best assure a solid caseload. during our dialogue, it emerged that lumsa had long-lasting connections with catholic communities and other nonprofit organisations in the rome area that focus on helping families in need. we recognised in those connections a valuable opportunity to provide the clinic with a solid caseload and to pursue the social justice commitment that characterises clinical legal education.[footnoteref:84] we agreed to focus this research on introducing mediation via a clinical teaching model focused on family and community disputes, and decided to tailor the curriculum to both the legal and educational needs of the families and communities lumsa and the clinic hopes to serve. [84: for an analysis of the social justice commitment of clinical legal education, see sections a.i, a.ii and b.i, above. ] having clarified scope and mission of the lumsa clinic, the following section describes mediation and its models, focusing specifically on the evaluative vs. non-evaluative debate. then, it analyses how various non-evaluative schemes have been implemented in family mediation programs. c. considerations and recommendations for creating a family mediation clinic at lumsa i. mediation: understanding the models mediation is a form of alternative dispute resolution (adr) wherein “the parties meet with a mutually selected impartial and neutral person who assists them in the negotiation of their differences.”[footnoteref:85] a general definition of mediation must necessarily remain broad and include only the distinctive features that distinguish mediation from other adr methods. in fact, the majority of scholars agree that a single limiting definition of mediation does not exist because of different philosophies and styles embraced and adopted by mediators.[footnoteref:86] [85: “mediation defined: what is mediation?” jams mediation services, available at https://www.jamsadr.com/mediation-defined/. ] [86: see, levin m., the propriety of evaluative mediation: concerns about the nature and quality of an evaluative opinion, 16 ohio st. j. disp. resol. 267 (2000-2001), p. 267. see, also, rubinson r., of grids and gatekeepers: the socioeconomics of mediation, 17 cardozo journal of conflict resolution 837 (2016), p. 877 (“[t]here is no consensus” on a definition of mediation); charkoudian l. et al., mediation by any other name would smell as sweet—or would it? the struggle to define mediation and its various approaches, 26 conflict resolution quarterly 293 (2009), p. 313 (there is no common definition of “approaches to mediation”).] the first attempt to systematically define and categorize various approaches is attributed to professor leonard riskin, who presented a diagram that became known as the riskin’s grid.[footnoteref:87] riskin recognized that there was no comprehensive or widely accepted system for classifying mediator conduct. for this reason, he created a method to distinguish among various processes that were commonly called mediation.[footnoteref:88] riskin’s grid contains four quadrants illustrating the mediator’s orientation. these quadrants “are based on two continuums. one continuum, concerning the mediators’ activities, ranges from pure evaluative to pure facilitative mediation approaches. the second continuum, dealing with the goals of the mediator, measures the scope of the issues that mediation seeks to address or resolve.”[footnoteref:89] [87: see, riskin l., mediator orientations, strategies and techniques, 12 alternatives to high cost litigation 111 (1994) and riskin l., understanding mediators’ orientations, strategies, and techniques: a grid for the perplexed, 1 harvard negotiation law review 7 (1996). riskin then proposed two modified diagrams. the first, called “the new old grid”, appeared in riskin l., who decides what? rethinking the grid of mediator orientations, dispute resolution magazine (2003), and riskin l., retiring and replacing the grid of mediator orientations, 21 alternatives to high cost litigation 69 (2003). the second model, labeled “the new new grid”, is described in riskin l., decisionmaking in mediation: the new old grid and the new new grid system, 79 notre dame law review 1 (2003).] [88: see, riskin l., decisionmaking in mediation: the new old grid and the new new grid system, 79 notre dame law review 1 (2003), p. 4.] [89: mcdermott, p. and obar, r., “what’s going on” in mediation: an empirical analysis of the influence of a mediator’s style on party satisfaction and monetary benefit, 9 harvard negotiation law review 75 (2004), p. 76.] riskin’s original grid (1994-1996) riskin’s grid generated the first major split in mediation models and fostered a fierce debate on non-evaluative and evaluative mediation and appropriate role and goals for mediators.[footnoteref:90] the approach adopted and the conduct assumed by the neutral are the distinctive features that differentiate these two major models. [90: see, love l. and waldman e., the hopes and fears of all the years: 30 years behind and the road ahead for the widespread use of mediation, 31 ohio state journal on dispute resolution 123 (2016), p. 138 (“riskin’s grid was the graphic representation of a field becoming confused about its primary focus and direction. the grid legitimized some of the evaluative practices that are now the norm in many venues. these practices moved us ever farther from the emphasis on understanding, problem-solving, and party engagement that animated mediation’s original vision.”). in relation to the debate on the facilitative-evaluative continuum, see, also, kovach k. and love l., mapping mediation: the risks of riskin’s grid, 3 harvard negotiation law review 71 (1998). see, also, lowry r., training mediators for the 21st century: to evaluate or not: that is not the question!, 38 fam. & conciliation cts. rev. 48 (2000); alfini j. et al., evaluative versus facilitative mediation: a discussion, 24 fla. st. u. l. rev. 919 (1997); birke r., evaluation and facilitation: moving past either/or, j. disp. resol. 309 (2000); love l., the top ten reasons why mediators should not evaluate, 24 fla. st. u. l. rev. 937 (1997). the debate on the narrow-broad continuum has drawn less attention: the main critique comes from riskin himself, who points out the structural problems of this classification (it obscures “the dynamic relationships between different problem-focuses, the approaches and strategies of the mediator, and the wishes and actions of the parties or their lawyers”); see riskin l., decisionmaking in mediation: the new old grid and the new new grid system, 79 notre dame l. rev. 1 (2003), p. 22.] evaluative mediators focus on identifying the parties’ legal rights and obligations and on providing them with a knowledgeable and objective third-party assessment of the strengths of their respective claims. [footnoteref:91] ultimately, these mediators are asked to prognosticate how a potential judge or jury is likely to adjudicate the case, so that the parties can decide the best course of action going forward.[footnoteref:92] this procedure requires discussing the difficulties of litigating a case, the shortcomings and weaknesses of the arguments proposed, as well as offering guidance concerning the substantive legal issues and the likelihood of success of each demand.[footnoteref:93] parties are invited to formulate offers in line with the mediator’s suggestions and to reach an agreement that considers the proposed recommendations.[footnoteref:94] [91: see, levin, supra, p. 269.] [92: see, levin, supra, p. 269.] [93: see, levin, supra, p. 269.] [94: see, levin, supra, p. 269.] conversely, non-evaluative mediators cherish the idea that the parties in a dispute are best situated to solve their own conflict.[footnoteref:95] the neutral acknowledges differences and commonalities between the parties, listening carefully for facts, interests, and feelings that can offer the basis to develop mutual understanding.[footnoteref:96] no evaluation concerning the merits of a case or its potential outcome is offered; an agreement, if reached, is solely based on the solutions proposed and shaped by the parties.[footnoteref:97] [95: see, levin, supra, p. 268.] [96: see, levin, supra, p. 268.] [97: see, levin, supra, p. 268. riskin clarified that the terms facilitative and evaluative were originally designed to highlight the mediators’ impact on parties’ self-determination. in riskin’s view, the term “evaluate” included “a certain set of predictive or judgmental or directive behaviors by the mediator that tend (or by which the mediator means) to direct (or influence or incline) the parties toward particular views of their problems, toward a particular outcome, or toward settlement … such behaviors often or typically interfere with party self-determination. in contrast, the term ‘facilitate’ included a variety of actions by the mediator-not involving such influences-that tend … to help or allow the parties to find their own way and make their own choices based on their own understandings;” see, riskin l., decisionmaking in mediation: the new old grid and the new new grid system, 79 notre dame l. rev. 1 (2003), p. 18-19.] as riskin noted, the continuum described in his grid was interpreted by scholars as a dichotomy between non-evaluative and evaluative approaches; such dualistic reading of the role of the mediator contributed to a polarization both in literature and practice.[footnoteref:98] however, some contemporary commentators argue that these two approaches are not running parallel to each other at the opposite side of the mediation spectrum, but can be blended together by mediators when appropriate during the course of the proceedings.[footnoteref:99] as the discourse on mediation evolves, additional styles and models continue to originate. [98: see, riskin l., decisionmaking in mediation: the new old grid and the new new grid system, 79 notre dame law review 1 (2003), footnote 44, p. 14. see, generally, rubinson r., of grids and gatekeepers: the socioeconomics of mediation, 17 cardozo journal of conflict resolution 837 (2016); lande j., toward more sophisticated mediation theory, journal of dispute resolution 321 (2000); birke, r., evaluation and facilitation: moving past either/or, journal of dispute resolution 309 (2000).] [99: see, stempel, j., identifying real dichotomies underlying the false dichotomy: twenty-first century mediation in an eclectic regime, scholarly works paper 216 (2000), p. 376 (“… a mediator must operate under a legal regime that treats eclectic mediation as legitimate and that permits the mediator substantial discretion to do what he or she thinks best in each particular case.”). for a similar point of view, see yeo j., contemporary issues in mediation, volume 1, chapter three: the facilitative-evaluative divide: have we lost sight of what’s important?, world scientific (2016).] in the following paragraphs, i analyse three different non-evaluative approaches to family and community mediation that were previously adopted in the context of clinical legal education: facilitative mediation, transformative mediation, and circle process. then, based upon my analysis, i propose a model tailored to the cultural, legal, and educational needs of lumsa and of the families the clinic hopes to serve. finally, i lay out sources and materials for the proposed curriculum, including an original role-play. ii. facilitative mediation facilitative mediation promotes a non-evaluative model based on active listening and question sequencing techniques that focus on recognition and acknowledgment of facts, interests, and feelings in a confidential setting. issues that created conflict between the parties are approached comprehensively and impartially. the mediators’ role is to empower the parties to self-determine the scope of their participation and reach a consensual agreement, if possible.[footnoteref:100] [100: see, riskin (1996) supra, p. 24 (“[t]he mediator who facilitates assumes that the parties are intelligent, able to work with their counterparts, and capable of understanding their situations better than the mediator and, perhaps, better than their lawyers. accordingly, the parties can create better solutions than any the mediator might create. thus, the facilitative mediator assumes that his principal mission is to clarify and to enhance communication between the parties in order to help them decide what to do.”).] of particular interest and great practical effectiveness is the technique called “question funnel”, which explains how to effectively use questions during the mediation process. this approach encourages mediators to start a session with simple open ended questions (for example, “what brought you here today?”) to gather as much information as possible. then, the inquiry should get progressively narrower (“tell me more about …”), directing the information gathering process towards previous positive events, interactions and experiences mutually shared by the parties—this is a particularly significant step in the context of family mediation, where previous relationships play a key role and rapport is fundamental. after each party has answered a common open ended question, a joint summary should always follow. at this stage, it might be useful to help the parties setting up an agenda and channel their conversation toward the most important issues to discuss. mediators are encouraged to take advantage of previously gathered information to identify and acknowledge parties’ underlying feelings and interests. often times, active listening, reflections, and summaries would be enough to make the parties feel understood, transforming their original positional behavior into a more productive and flexible approach to conflict resolution. when this positive shift happens and the parties move towards a potential agreement, mediators might ask closed questions to reality check durability and viability of the solution proposed by the parties. professor alexandra carter, columbia law school mediation clinic training material in 2009, the university of virginia school of law created a pilot family adr clinic, which adopted a facilitative approach.[footnoteref:101] before mediating, students had the opportunity to meet with their supervisor to discuss their expectations and goals for the upcoming mediation; after the session, students wrote reflection papers analysing their conduct and performance in light of the practical lessons learned. this exercise fostered the students’ ability to recognise their respective strength and weaknesses, and find ways to reinforce and improve their skills.[footnoteref:102] the program also included training sessions, seminars and class discussions organised in conjunction with the university’s clinical psychology program, creating a very informative interdisciplinary learning opportunity.[footnoteref:103] [101: see, emery k., assisting indigent families in conflict: a pro bono test drive for a family alternative dispute resolution (adr) clinic, journal of law & policy, vol. 34:239 (2010), p. 249.] [102: see, emery, supra, p. 250.] [103: see, emery, supra, p. 250.] the combination of law and psychology forged strong interdisciplinary links that enhanced the quality of the service provided to the parties, especially in delicate situations such as educating clients on how to focus on the best interests of their children.[footnoteref:104] in conclusion, this flexible and innovative framework created incentives for students to go out of their comfort zone, structuring particularly complex issues “in terms of real people … rather [than] in terms of rules and principles,”[footnoteref:105] focusing on feelings and interests rather than facts and rules. [104: see, emery, supra, p. 253.] [105: see, emery, supra, p. 253.] iii. transformative mediation the transformative mediation approach developed in the last two decades from the work of professors baruch-bush and folger.[footnoteref:106] according to the transformative view, conflict develops from a crisis in human interactions caused by two feelings: (i) weakness, which should be replaced by strength, and (ii) self-absorption, which should be substituted by responsiveness.[footnoteref:107] these feelings are a normal consequence of conflict and affect how people experience themselves and others.[footnoteref:108] in the transformative process, the bridge from weakness to strength is empowerment, and the bridge from self-absorption to responsiveness is recognition.[footnoteref:109] this path to transformation and regeneration of the parties’ relationship gradually creates a virtuous circle that shifts “negative, destructive, alienating and demonizing interaction[s] to … positive, constructive, connecting and humanising [ones,] even while conflict and disagreement are still continuing.”[footnoteref:110] [106: see, generally, baruch-bush r. and folger j., the promise of mediation. responding to conflict through empowerment and recognition, jossey-bass (1994); and baruch-bush r. and folger j., the promise of mediation: the transformative approach to conflict, jossey-bass (2005).] [107: see, goodhart i. et al., transformative mediation: assumptions and practice, 11(2) journal of family studies 317 (2005), p. 318.] [108: see, baruch-bush r. and ganong pope s., changing the quality of conflict interaction: the principles and practice of transformative mediation, 3 pepp. disp. resol. l.j. 67 (2002-2003), p. 74.] [109: see, goodhart et al., supra, p. 319.] [110: baruch-bush and ganong pope, supra, p. 82.] baruch-bush r. and ganong pope s., changing the quality of conflict interaction: the principles and practice of transformative mediation, fig. 2, p. 81 in order to create opportunities for empowerment and recognition mediators must know the language of conflict transformation,[footnoteref:111] which includes: [111: see, baruch-bush and ganong pope, supra, p. 86-87.] · close listening and observation of changes in the body language of the parties as different messages are conveyed;[footnoteref:112] [112: see, baruch-bush and ganong pope, supra, p. 88.] · reflecting what the mediator hears back to the parties, using their own words when possible, and especially when the language is strong, loud, negative or strongly expressive.[footnoteref:113] this technique’s purpose is to give the parties an opportunity to “hear their own words in the same way as the other party has heard them, … enabling them to see and feel what it is like to be ‘on the receiving end;’”[footnoteref:114] [113: see, baruch-bush and ganong pope, supra, p. 89.] [114: goodhart i., et al., supra, p. 320.] · summarising what has been said during the mediation, helping the parties making informed decisions about where they want the process to go.[footnoteref:115] in using this tool, mediators should remember that “[t]he summary is not an educational monologue … and has no agenda or direction built into it. it is a powerful tool for supporting empowerment and recognition when it highlights the differences between the parties, and the choices they face;”[footnoteref:116] [115: see, baruch-bush and ganong pope, supra, p. 89.] [116: baruch-bush and ganong pope, supra, p. 89.] · regularly checking-in with the parties, preserving the voluntary nature of mediation and its self-determination purposes. mediators can ask questions during the conversation to check their understanding of the parties’ views; in particular, “[w]hen there is a fork in the road, it is helpful for the mediator to point it out and ask the parties which direction they want to take.”[footnoteref:117] [117: baruch-bush and ganong pope, supra, p. 90.] transformative mediators seek to support the family in the transition from destructive to constructive dialogue, focusing on self-determination and allowing the parties to be agents of their own change.[footnoteref:118] the ultimate goal of transformative mediation is not to offer a third-party solution, but to accompany the parties into their journey from weakness and self-absorption to strength and responsiveness. [118: see, baruch bush r., et al., supporting family strength: the use of transformative mediation in a pins mediation clinic, 47(1) family court review 148 (2009), p. 157.] the transformative mediation model was implemented in 2008 by hofstra law school’s mediation clinic to help families in nassau county, new york.[footnoteref:119] students and social workers received a forty-hour training in transformative mediation, focused on working with parents and teens. then, over an average period of three months, each family involved in the program periodically received mediation sessions devoted to enhancing their communication skills, creating a better understanding of their situation, and making informed and collaborative decisions about the appropriate course of action.[footnoteref:120] in the first month, mediation sessions focused on increasing dialogue within the family, identifying the main areas of conflict, and eventually proposing solutions concerning day-to-day activities, like chores.[footnoteref:121] during the second month, families were asked to engage in mediation to evaluate impact and feasibility of their agreements in the long term, discuss their progress, detect if any potential new issues emerged, and decide whether to stay in the program.[footnoteref:122] the final month was focused on providing families with tools to approach conflict in a productive manner without external intervention, helping them to design tailored solutions to cope with future issues.[footnoteref:123] [119: see, baruch bush et al., supra, p. 158.] [120: see, baruch bush et al., supra, p. 158.] [121: see, baruch bush et al., supra, p. 159.] [122: see, baruch bush et al., supra, p. 159.] [123: see, baruch bush et al., supra, p. 159.] during their experience in the clinic, students mediated real cases under the supervision of professors or certified mediators, adopting a co-mediation model and a transformative approach in which mediators (i) constantly reflected the parties verbal interactions, “capturing and uplifting their comments so that they can actually hear and listen to each other (and to themselves), as they express their views, feelings, and desires;” and (ii) regularly summarised the content shared by the parties, as their conversation unfolded.[footnoteref:124] a social worker was also present at every meeting to guarantee the safety and feasibility of proposed agreements, preventing potential risks of foreseeable harm to minors.[footnoteref:125] in contrast to the circle process (analysed below), usually only immediate family members were invited to partake in mediation, but relatives, therapists, community members and other interested parties were allowed to join all or some of the sessions on a case-by-case basis when the interests of the family and/or the complexity of the issues so required.[footnoteref:126] [124: baruch bush et al., supra, p. 159.] [125: see, baruch bush et al., supra, p. 160.] [126: see, baruch bush et al., supra, p. 161.] according to the hofstra law school faculty members involved, this program was a success, and the transformative approach represented the best option since it provided a clear and coherent theory underlying the practice of mediation that students could easily and readily learn.[footnoteref:127] [127: see, baruch bush et al., supra, p. 162.] iv. peacemaking circle the circle process is one of the most ancient forms of peaceful dispute resolution, which preceded the development of laws, courts, and judicial systems, emerging organically in almost all indigenous civilizations.[footnoteref:128] in the african continent, circles are often grounded in the concept of ubuntu, a collaborative approach to reconciliation and restoration of harmony within a community.[footnoteref:129] in general, these proceedings are informal, flexible, and anchored to the idea that peace is a communal matter that involves society at large.[footnoteref:130] in ethiopia, afar communities use a process called maro, in which elders, disputants, witnesses and observers sit in a circle under a tree to resolve conflict when disputes arise.[footnoteref:131] in new zealand, the maori population used to practice the whanau conference, which gathered extended families and clans of victims and offenders.[footnoteref:132] in native american culture, circles have traditionally been used to settle disputes and make shared decisions concerning the community.[footnoteref:133] in this process, one or more individuals facilitate the conversation while a symbolic object is passed around in a circle, and the person who holds it has an opportunity to speak without interruption; members are usually gathered in plain view of one another and “the power of the talking circle group resides within the group, not with an individual member.”[footnoteref:134] [128: see, daicoff s., families in circle process: restorative justice in family law, 53(3) family court review 427 (2015), p. 431.] [129: daicoff, supra, p. 431.] [130: see, boniface e., african style mediation and western-style divorce and family mediation: reflections for the south african context, 15(5) potchefstroom electronic law journal 378 (2012), p. 383-384. for a comprehensive explanation of the meaning of ubuntu, see mcallister, p., ubuntu – beyond belief in southern africa, 6(1) sites: new series 1 (2009) and murithi t., an african perspective on peace education: ubuntu lessons in reconciliation, 55(2-3) international review of education 221 (2009).] [131: see, gebre-egziabher k. a., dispute resolution mechanisms among the afar people of ethiopia and their contribution to the development process, 10(3) the journal for transdisciplinary research in southern africa 152 (2014), p. 156-157. see, also, morris d., dispute resolution – an archaeological perspective with case studies from the south african stone age and san ethnography, 10(4) the journal for transdisciplinary research in southern africa 120 (2014); this article offers an interesting archeological perspective on the development of peaceful dispute resolution practices in the south africa.] [132: see, zernova m., restorative justice: ideals and realities, international and comparative criminal justice series, routlege, 2016, p. 10.] [133: see, bradford w., reclaiming indigenous legal autonomy on the path to peaceful coexistence: the theory, practice, and limitations of tribal peacemaking in indian dispute resolution, 76 north dakota law review 551 (2000) p. 565 (“… disputes within the tribe were typically resolved … with the aid of respected elder members of the tribe who would guide the parties to a compromise restorative of the community.”). in the traditional navajo peacemaking process (called hozhooji naat’aani) members of the tribe sit in a circle and discuss their issues at length. the system is horizontal, which means that everyone is an equal, every opinion has the same authority and agreements are reached via consensus; see, yazzie r., “hozho nahasdlii” -we are now in good relations: navajo restorative justice , 9 st. thomas law review 117 (1996), p 122.] [134: jennings l. et al., using the native american talking circle: experiential learning on ethnic and cultural diversity of southern california, 25(1) groupwork 58 (2015), p. 59. for an extensive discussion of how certain debilitating addictions that threaten families and communities can be cured via therapeutic jurisprudence and wellness courts, see flies-away j.t. and garrow c., healing to wellness courts: therapeutic jurisprudence, 2013 michigan state law review 403 (2014).] the above mentioned methods, despite obvious differences from one another, are rooted on the same core principles: inclusion, participation, and accountability. the fact that an entire community can be present when the conflict is approached, have a voice in the solutions, support families in keeping agreements, and promote post-dispute relationships generates mutual respect, equality, dignity, tolerance, collaboration and a sense of interconnectedness that make the circle process particularly suitable for family law.[footnoteref:135] [135: see, daicoff, supra, p. 430.] living justice press; see, http://www.livingjusticepress.org/index.asp?type=b_basic&sec={b158346e-2e21-48c6-94dc-a71301be3d0f}. this framework was tested in 2008, when the cook county parentage and child support court in illinois partnered with depaul college of law to create a free program devoted to the promotion of peacemaking circles within families in disagreement. feedback from the families involved in the program showed that the circle experience had a positive and enduring impact on communication in conflict situations.[footnoteref:136] in particular, “[t]he restorative process helped to create … better dialogue … encourag[ing] accountability and responsibility of the parents to their children and for their children.”[footnoteref:137] [136: see, daicoff, supra, p. 434.] [137: daicoff, supra, p. 434.] after having considered the main features of facilitative, transformative and peacemaking approaches and having described notable examples of their implementation in family mediation programs across the united states, the following section will analyse how these models can be tailored to the family mediation services that the lumsa clinic will offer. this inquiry will consider how specific cultural beliefs and societal norms that inform italian catholic communities play a role in determining the best approach to conflict resolution. in addition, the following section will identify role and mission of the clinic within the law school curriculum and discuss important guidelines to consider in order to provide prospective students with a meaningful and productive learning experience. v. tailored model for lumsa family mediation clinic the first step in shaping the lumsa model is to articulate the role and mission of the clinic within the law school curriculum. professor wilson indicated the five components that define his “ideal model of clinical legal education.”[footnoteref:138] wilson’s model requires that: (1) academic credit is granted to students for participation in the clinic; (2) actual clients with real legal problems are represented within a framework permitted by local statute, bar or court rules permitting limited student practice, advice or other legal services; (3) clients served by the program are legally indigent and/or come from traditionally disadvantaged, marginal or otherwise underserved communities; (4) students are closely supervised by attorneys and/or professors who share the pedagogical objectives of clinical legal education; (5) case‐work by students is preceded or accompanied by a law school course on the skills, ethics and values of practice.[footnoteref:139] [138: wilson (2009), supra, p. 829. originally, in wilson r., training for justice: the global reach of clinical legal education, 22 penn state international law review 421 (2004), the author indicated six components, but later decided to reduce the number to five because he combined two components into one.] [139: see, wilson (2009), supra, p. 829-830. those components are very similar to the ones originally adopted by professor liebman and still used by the columbia law school mediation clinic; see paragraph b.ii, above.] lumsa family mediation clinic should include all the components listed by professor wilson, in order to provide a structured, meaningful and effective learning experience for its participants. in particular, the clinic should: · award academic credit for students that successfully partake in clinical activities; · comply with the provisions listed in section b.i and be listed in the ministry of justice’s register; · work with low income and disadvantaged families and communities; · offer academic supervision by faculty members who share the pedagogical objectives of clinical legal education; and · include basic skills trainings, interactive classes, role-play activities, lectures and group discussions concerning mediation theory, practice, ethics and policy issues. further, the different mediation models analyzed in the foregoing sections b.ii-b.iv provide interesting options for the proposed italian mediation clinic. peacemaking circles have the perk of involving entire communities in conversations devoted to solving family conflicts, offering a variety of views concerning issues and solutions. moreover, sincere and productive help from community members could generate great support to the parties in maintaining their commitments. however, this model does not seem to fit appropriately into italian culture, which values privacy as a fundamental principle when it comes to family conflicts. one of the most widespread and ancient italian saying goes i panni sporchi si lavano in casa (dirty clothes are washed inside the house), which means that private unflattering conflicts that rise within the family shall be resolved by family members, without external intervention. moreover, this view is strongly followed by catholic families like the ones that lumsa mediation clinic would mainly serve. for this very simple yet decisive cultural reason, the circle process does not seem to be a feasible option; most families would probably feel embarrassed and/or reluctant to discuss family matters before other members of their community, diminishing the effectiveness of this method. the above mentioned privacy concerns still play a role in transformative and facilitative approaches; however, mediators have more leeway to manage this cultural privacy tension. people who partake in mediation can be limited according to the needs of each specific case, ranging from immediate family members to relatives, therapists, and social workers. in addition, confidentiality can be assured via a confidentiality agreement. transformative and facilitative mediation have many other positive features in common; they wish to transform conflict into a productive dialogue, relying heavily on the use of (i) active listening skills, (ii) various techniques to filter, reframe, and reflect the words said by the parties, and (iii) regular summaries of the information shared by the parties during the mediation. the main substantial difference between these two approaches lays in how mediators interpret their role and goals. the facilitative style focuses on resolving issues emerged during the mediation; the transformative approach goes further; it wishes to tackle family dynamics that cause conflict, improving the parties’ relationship as a whole.[footnoteref:140] in practice, however, these distinctions tend to fade; each mediator can – to a certain extent – tailor her style to specific cases’ needs, assessing the complexity and gravity of the disagreement and determining the level of resolution required. [140: see, boulle l. j. et al., mediation: skills and techniques, lexisnexis (2008), p. 12-13.] for all these reasons and in light of professor liebman’s suggestions (see paragraph b.ii), lumsa family mediation clinic should adopt facilitative mediation, with transformative tendencies when family conflicts seem rooted, serious, and repetitive to require a much deeper inquiry into reasons and dynamics that create disagreement within the family and threaten the underlying relationships. the learning experience should start with an intensive course focused on teaching students foundational conflict resolution tools (active listening, reflecting, summarising, and checking in), illustrated in paragraph c.iii, and the “the question funnel” technique, analysed in paragraph c.ii. the clinic should implement a co-mediation structure. professors should pair students in light of their effectiveness as a team during the role-play activities performed during the intensive course. the co-mediation scheme should promote collaboration among clinical students and make it easier for beginners to approach real-life disputes without being overwhelmed. after the initial intensive training, students should start mediating real cases under the supervision of faculty members and/or experienced mediators, having interactive classes, lectures and discussions and write short weekly reflection papers (from 3 to 5 pages) based on the analysis of the readings assigned and of the practice of mediation. the following section will complement the foregoing analysis with seminal resources and materials that will constitute the backbone of the lumsa clinic’s curriculum. in addition, i will include an original role-play that touches upon family disputes with elder care. vi. the curriculum: resources, materials, and role-play my proposed resources for lumsa family mediation clinic’s curriculum are mainly based on the materials assigned by the columbia law school mediation clinic. in particular, i would recommend adopting the book “difficult conversations: how to discuss what matters most” by douglas stone, bruce patton and sheila heen; chapters 4, 5, and 6 of “the practice of mediation” by douglas frenkel and james stark; and some exercises included in “conquer your critical inner voice: a revolutionary program to counter negative thoughts and live free from imagined limitations” by robert firestone, lisa firestone, joyce catlett, and pat love. unfortunately, these materials have not yet been translated into italian. however, this task can be performed by students under the supervision of lumsa professors, with permission from the authors, when necessary. moreover, following the university of virginia school of law’s footsteps (see paragraph c.ii), it would be incredibly useful to supplement this material with specific content provided by experts in child psychology and sociologists specialising in family conflict. this interplay between law and psychology would be beneficial both to students and families involved in the clinical program to reach agreements that are mindful of the delicate issues faced in family mediation. finally, i include a sample role-play that concerns elderly care and family conflict. the role-play is called “the decision” and requires three participants and two co-mediators. the decision role-play general information for the mediators and the parties veronica is a 77 year-old widow. her husband died when she was 40 years-old, causing her great emotional suffering. five years after his death, while visiting her sister in a summer location far from her town, veronica met vincenzo, a widower. they started a relationship, and eventually moved in together in vincenzo’s house, in a city far away from veronica’s family. the relationship by all measures was a success; they have lived happily together for many years. however, two years ago vincenzo (then, 82 years old) started losing his memory, and was diagnosed with alzheimer and dementia. unfortunately, as result of the disease, vincenzo’s memory continued to deteriorate, but veronica stood by his side despite all the difficulties. recently, vincenzo’s disease has diminished his memory and cognitive abilities to the point that he often confuses veronica for his deceased wife and has trouble recognising his sons. about two months ago, vincenzo fell from a chair, breaking his thighbone, and was hospitalised. around the same time, veronica started suffering from a severe and persistent stomach ache. further medical examinations showed the presence of a mass in her stomach, which required further testing. it was clear that vincenzo’s sons, already busy assisting vincenzo at the hospital, could offer veronica little support with her newly discovered medical condition. they promptly informed veronica’s three daughters anna, lisa, and iolanda (today’s parties) of the situation. veronica’s daughters decided to take some time off from work to go visit their mother. realising that her condition could be serious and considering vincenzo’s sons’ limited availability, they decided to temporarily take veronica back to their hometown with them. since then, the newly performed tests on veronica’s stomach showed that the mass was a very aggressive cancer, and that veronica’s chances of surviving are close to none. the doctors consulted with anna, lisa, and iolanda to assess how to proceed. the daughters strongly disagreed on how, if at all, to convey the difficult and sensitive information to veronica, and decided to try mediation. unaware of the severity of her medical condition, veronica planned a trip to visit her beloved vincenzo. this trip could be the last opportunity for veronica to see vincenzo before her health makes it impossible. thus, time is of the essence to decide whether and to what extent to inform veronica about her cancer. the decision role-play confidential information for anna your mother never shared with you or your sisters her wishes in case something like this happened. you are extremely worried about your mother and blame vincenzo’s sons for not having paid attention to the signals of veronica’s illness. if they were more attentive, they could have realized that something was wrong with her, and act when her chances of surviving were better. also, you know your mother better than anybody else. being the oldest daughter, you comforted her when your father passed away, creating a very strong bond. you also developed a very deep relationship with your sisters, and became their mentor when your mother left. you think that by telling her the truth about her disease she would start feeling extremely sad, to the point that she might even refuse medication and blow her already minimal chances of surviving. however, you know how much she loves vincenzo, and do not want to prevent her from going to see him for what might be the last time. you are devastated by the idea that she might not know that the upcoming visit to vincenzo could represent the last time she sees him. despite that, you still think that not telling her of the whole truth is preferable since it would give her hope. even though you have very specific ideas on what is best for your mother, ultimately you want whatever decision that is made to be one that you and your sisters can all agree to and feel comfortable with despite your different opinions. the decision role-play confidential information for lisa growing up, you never forgave your mother for prioritizing her relationship with vincenzo over the one with you. in fact, your relationship has never been the same again since she moved in with vincenzo, but you still deeply care about her, and the news about her cancer devastated you. you never met vincenzo or his family before the occurrence of these sad events. you want to make sure to make the best decision for veronica, but unfortunately your mother never shared with you or your sisters her wishes in case something like this happened. you are unsure about what to do, and feel extremely lost. you want to hear what both of your sisters have to say before making up your mind. ultimately you want whatever decision that is made to be one that you and your sisters can all agree to and feel comfortable with despite your different opinions. the decision role-play confidential information for iolanda you are the youngest sister in the family. at the beginning you had a hard time accepting your mother’s decision to leave, but with time you came to terms with it. you also had many opportunities to meet with vincenzo and his sons, and really like them and the way they treat your mother. despite the fact that your mother never shared with you or your sisters her wishes in case something like this happened, you believe she would like to know about her condition. you also believe that her knowledge would definitely affect her decision to see and interact with vincenzo. you believe she deserves to know the truth and make an informed decision about her future, including how to approach the upcoming meeting with vincenzo. even though you have very specific ideas on what is best for your mother, ultimately you want whatever decision that is made to be one that you and your sisters can all agree to and feel comfortable with despite your different opinions. conclusions first, the organisational structure of lumsa mediation clinic should comply with all the provisions analysed in section b.i above and seek admission to the register maintained by the ministry of justice. this is a fundamental step to ensure that all the activities of the clinic are carried on in compliance with the law. then, given the cultural background of italy and most of the families that will be serviced by the clinic, i believe that the best mediation model to implement at lumsa is the facilitative approach, with transformative tendencies as needed, as described in section c.v. furthermore, the legal clinic should adopt a co-mediation structure, and assign students weekly reflection papers. while many resources already exist in english, the mediation clinic may find it useful and worthwhile to look into what needs to be done to translate the seminal texts included in section c.vi. to expand the available educational material, the clinic should also design and rely on role-plays that are similar to the disputes that students may face in the field and reflect cultural knowledge of the community, like the sample role-play included in section c.vi. in addition, the clinic should consider having an interdisciplinary approach that might better address all the complex needs that arise in family disputes. in relation to funding, the clinic should rely on the direct investment of lumsa and indirect patronage, especially in the form of donations. moreover, despite the foreseeable difficulties illustrated in the preceding section a.ii, the clinic should apply for european grants. in the future, once lumsa family mediation clinic becomes a structured and well-established reality, it may be advisable to create an advance clinic model capable of furthering students’ learning experiences and generating revenues, for example in the form of trainings that assign professional and ethics credits to italian qualified lawyers and practitioners. 44 98 fighting africa’s poverty and ignorance through clinical legal education 13 fighting africa’s poverty and ignorance through clinical legal education: shared experiences with new initiatives for the 21st century philip f iya* introduction most of our fellow citizens are poor. they are without proper housing, health care and schools. many are without jobs. even those who have them earn too little to support themselves and their families. poverty is inimical to democracy… there is no shame in admitting there is poverty, and unjust distribution of wealth and the granting of honours amongst us. the real shame is and will continue to be our failure to take steps to put an end to both poverty and substantial inequality”.1 the above statement by one of south africa’s highly reputed and veteran human rights lawyer and activist reminds the readers (and society at large) not only of the serious concerns for poverty, ignorance and their consequences, but more importantly, for the challenges that face societies in combating them. whereas the statement relates directly to the poor in south africa, its application and implications to africa generally is beyond doubt. evils like crime, diseases, illiteracy, wars (both at national and regional levels), debt crisis, unemployment, corruption (in both the public and private sectors) and others are constantly cited as serious challenges which the african society must address to attain the long-desired sustainable social development.2 with particular reference to poverty, recent reports show that 40% of africans live on less than $1 a day.3 the situation in the education sector is no less disturbing. in south africa, for example, the bantu education system of the apartheid regime the legacy of which still lingers on, has resulted in creation of a huge reservoir of illiterate cheap labour. there is, therefore, an objective reality that the bulk of * ba (east africa); ll.b (makerere); ll.m (yale); ph.d (warwick); advocate (uganda supreme court); professor of african and comparative law and former dean of law faculty (university of fort hare). 1 bizos, g: “our failure to end poverty is the real shame of the nation”. in sunday times (south africa) of may 30, 1999 p.20. 2 for details of such evils read: kobokoane t., “it’s time for africa to take a long, hard look at itself ” in sunday times (south africa) of october 4, 1998 p.18. 3 figure provided by the world trade organisation as reported in mail and guardian (south africa) of march 10 to 16, 2000 p.2. 14 journal of clinical legal education november 2000 africans are poor and educationally ill equipped to effectively participate in and meet the demands of social growth so desperately needed in the continent. the question then is: what needs to be done that has not been done? what have governments, international organisations, ngos and other institutions done to address the challenges of africa’s poverty and ignorance? have universities and their respective law schools risen to this important challenge? if so, how? it is in response to the above concerns that this paper attempts to establish and analyse the role of african universities generally and their law schools in particular in their fight, if any, against poverty and ignorance. in that regard, the case of legal education and specifically its clinical programmes will be analysed, and the thrust of the discussion will be directed toward the following issues: 1. the backdrop of the debate: universities and community outreach programmes; 2. understanding the genesis and application of clinical legal education in africa; 3. sharing experiences of clinical education in different countries in africa; and 4. new challenges and initiatives for the 21st century. each of these issues is discussed separately and seriatim in subsequent paragraphs. 1. the back drop of the debate: african universities and the general community african universities out of reach to the ordinary person? one of the many criticisms leveled against universities in africa relates to their role in social transformation. there has always existed in most developing countries, including those in africa, the concern as to what exactly should be the contribution of the university in meeting the needs of the ordinary citizens in their search for a better life. the same question is posed to the different arms of universities including, and especially, their respective law schools/faculties.4 in the 1960s, a period when the process of decolonisation was sweeping throughout africa, derogatory terms like “the ivory tower” or “the highest seat of learning” and other similar terms were closely associated with and commonly used by the ordinary citizens when referring to their universities. ironically too, a university like that of makerere in uganda, with literally “high seats” for the colonial professors, has been pegged right high up on top of one of the highest and most famous of the seven hills of kampala. equally notable is the university of dar es salaam with its “towering” white (not ivory) skyscrapers built miles away in the thin horizon of the hills, distant from and out of reach of the ordinary citizen. not only the community but even the newly independent governments, enlightened by the new demands of independence, began to question the role of universities and their respective departments in the process of social transformation that began to sweep across the continent in subsequent years. how were the post-independence expectations emerging from these new social demands for improving the lives of the ordinary citizen to be met by the universities? any debate on mechanisms for alleviation and eradication of africa’s most deadly enemies, poverty and ignorance, cannot ignore the concerns relating to the contribution of legal education to that important cause. the question still is: in what way has legal education done that? 4 for the purpose of this discussion the terms “law schools” and “law faculties” are used inter-changeably. fighting africa’s poverty and ignorance through clinical legal education 15 current missions of universities on community outreach programmes in developing countries, and particularly those in africa, universities established after the attainment of independence have adopted the three fundamental functions normally attributed to universities:5 • producing middle and high level manpower with skills to manage the economy and government; • conducting research into problems of development; and • providing a focus for national, political and cultural activities. the point to note, however, is that today universities in africa are assigned their respective functions by the relevant statutes establishing them. what is more is that those legal functions have been supplemented by broader commitments to the service of the community as evidenced by different mission statements on the issue.6 law school outreach programmes to the wider community geared towards alleviation and eradication of poverty and ignorance are, therefore, undertaken within the broader framework of respective university outreach activities. evidence of commitment by university law schools a quick survey of law schools in africa points to the availability of commitment of law schools to community outreach programmes. at the university of fort hare in south africa, for example, the mission statement of the faculty of law states that through its outreach programme, the faculty encourages awareness and respect for citizens’ rights and responsibilities, and provides legal advice and representation. in addition, the statement categorically directs the faculty to associate fully with the community to which it owes a responsibility of contributing to its welfare and developmental process.7 a similar mission can be found in uganda where the law faculty of makerere university states as its objectives, interalia;8 • to provide other university students and members of the public with quality and quantity of legal knowledge and service required in their various callings or pursuits both within and outside the country of their residence; and • to preserve and foster the traditional role of a university in propagating knowledge both within and outside the country of its setting. those examples not only illustrate the degree of commitment but also the desire to contribute specifically towards knowledge and service required for the attainment of social development for the public at large. 5 as observed by makhubu l.p, vice-chancellor of the university of swaziland in her opening speech at the national workshop on tertiary education held from 31 january to 1 february 1990. for details read the report of the proceedings 1990 university of swaziland p.2. 6 for example the mission statement of the university of fort hare commits the university to ensuring that knowledge and resources are shared with the wider community through outreach work. 7 the university of fort hare strategic planning 1995 2000 at p.25. 8 faculty handbook 1998/1999 of makerere university faculty of law p.7 16 journal of clinical legal education november 2000 2. understanding the genesis and application of clinical legal education in african law schools in earlier discussions we have dealt at length with the issues relating to the nature, genesis and fundamental characteristics of what is today generally referred to as clinical legal education.9 for the purposes of the present discussion only a few of the important points will be highlighted so as to understand the position generally in africa. nature and genesis although authors differ in their definition of the term “clinical legal education”, a term originally associated with american law schools, one finds that in africa what is commonly used are terms like “professional training”, “practical training” and more recently “skills training or development”. in a narrow sense, programmes dealing with all these terms focus on lawyer-client work by law students under law school supervision usually for credit toward the law degree. they aim at equipping law students with the necessary skills to function as lawyers and to help the lawyer-to-be with his/her emotional development so that he/she may cope adequately with the persons and institutions of the outside world.10 in the united states where clinical education was first introduced, it was associated with the medical school and involved the actual practice of the profession by students employing their skills on actual or real patients. the advantages of this system of education was acknowledged and eventually adopted by law schools in the late 19th century to suit the needs of law students and was further employed to cater for the expanding needs for legal aid to indigent persons. the result was the emergence of a system of clinical legal education which not only served the educational needs of law students in terms of skills or practical training but also served the social needs of indigent persons in terms of providing legal services through legal aid clinics run by law schools. the fundamental basis upon which law schools in the united states introduced clinical legal education was that in preparation for legal practice, classroom lectures were insufficient in providing practical skills without exposing the students to clinics where practical professional skills were acquired. law schools in africa also subsequently acknowledged this fact by introducing clinical programmes as part of their system of legal education. instrumental in this process were professors like gower l c b, twining w l, paul, c n j and others who, during the 1960s, spearheaded and drove the process of implementing those programmes in western africa (ghana, nigeria), eastern africa (uganda, kenya) and southern africa (the boleswa countries of botswana, lesotho and swaziland). in south africa, at the time of the first international conference on legal aid held at the university of natal, durban in july 1983, there were only two university legal aid clinics in the country: at the university of the witwatersrand run by staff and at the university of cape town run by students. the third clinic was set up at the university of natal, durban immediately after the conference, and thereafter there was a proliferation of legal 9 for details read: iya, p.f: “educating lawyers for practice – clinical experience as an integral part of legal education in the boleswa countries of southern africa. (1994) international journal of the legal profession vol 1 no.3 pp.315–341. read also iya pf: skills development for competent practice of law. an analysis of the skills development programmes for lawyers in the boleswa countries of southern africa 1996 unpublished ph.d. thesis especially chapter 5 pp.94–110. 10 princes w., “clinical legal education in the united states 1968-1975” (1975) a.l.j. p.420. fighting africa’s poverty and ignorance through clinical legal education 17 aid clinics with the result that by 1992 16 of the 21 law schools in south africa had legal aid clinics.11 before discussing the dimension of clinical programmes in their operational details within different jurisdictions in africa, one needs to also understand their wider social perspectives with particular reference to legal services and access to justice, the dimension of which have special features arising from the issues of poverty and ignorance of the majority africans. implications for legal services and access to justice in developing countries generally, and africa in particular, where, as earlier indicated, there are vast economic and social differences between rich and poor and where the majority of the population are ignorant of their legal rights and do not have access to proper legal services, clinical legal education has come to play a much wider role than discussed above. targeted are issues of poverty and ignorance of legal rights, the concerns for which are much more than what legal aid clinics can provide. clinical programmes in africa have, therefore, also come to encompass activities outside clinics such as dissemination of legal information with emphasis on teaching of human rights, production of simplified legal materials, training of paralegals etc. the motivation for such activities is based on the premise that law students can play a valuable role in assisting the majority poor and ignorant members of the society by satisfying their needs for access to justice through engaging in a variety of community service programmes, while at the same time acquiring legal/professional skills and values.12 in this endeavor law schools liaise and closely cooperate with other institutions and organisations outside the universities. the remarkable growth in the number of bodies carrying out legal services in the past ten years owes itself to a variety of prime movers at the local and international level. at the local level, for example, individuals concerned with various forms of injustices have adopted a critical and practical approach to addressing perceived injustices and have been a driving force in the establishment of organisations providing legal services. also of significance has been the influence of organised bodies such as lawyers associations, non-governmental organisations, churches etc., with specific programmes that impact on access to justice and provision of legal services for rural and other disadvantaged communities. the role of international donor agencies and foundations in providing financial support to such organisations has also been significant in different african jurisdictions.13 the question, however, is to what extent are law schools committed to working with these organisations in promoting access to justice and eradicating poverty and ignorance? given the above mission of some law schools, and in the context of that commitment, what programmes have law schools designed to achieve such noble objectives? in the view of the writer, any discussion on clinical legal education in africa should not ignore this broader responsibility to disadvantaged communities as programmes intended for such purposes would supplement the role 11 mcquoid-mason, d j: “teaching social justice to law students through community service – the south african experience” in transforming south african universities 1999 alice p.76. 12 ibid p.75. 13 report on legal services in rural areas in africa published in 1997 by the international commission of jurists, switzerland p.15. the report provides details of programmes run by these organisations in a number of african countries including benin, burkina faso, cameroon, ghana, kenya, nigeria, to mention but a few. 18 journal of clinical legal education november 2000 of law schools in community outreach activities, thereby providing a more holistic approach to the achievement of the objectives of legal education. 3. sharing experiences with different jurisdictions the challenge of clinical legal education the discussion in the immediately preceding paragraphs was intended to analyse the nature of clinical legal education by emphasising its narrow focus on acquisition of professional/practical or legal skills while also acknowledging its broader function of providing the means to access to justice through promoting legal services. the critical emerging point is that legal educators have recognised the educational value of clinical programmes and have regarded it as a crucial step towards revolutionising the educational system since these programmes have broader aims for legal education beyond its academic component found in the books, libraries and lecture rooms. the result is that by exposing students to clinical work, lawyering skills as well as professional values are not only acquired but also nurtured and developed in an atmosphere of real life.14 in addition, legal educators have come to realise that the concept of clinical legal education had to expand far beyond the legal aid clinics, the focal point for student activities, to encompass programmes of broader community needs for social development. provision of legal services to the majority poor and dissemination of legal information to the ignorant members of the society have now become pilot schemes of clinical education adopted by and well established in many law schools the world over.15 in the context of africa, while some law schools have ignored the above challenges of clinical legal education, others have responded to a greater or lesser degree, depending on the circumstances and demands of their respective national and institutional policies and strategies of legal education and training of lawyers. the discussion that follows is intended to explore and establish these policies and strategies in the different law schools within african countries. in doing so, reliance for information and analysis is based on the writer’s extensive research in the field of clinical legal education in the eastern and southern parts of africa and more particularly in south africa.16 the subsequent discussion is, therefore, the outcome of research based on various sources including personal experiences shared with law schools, legal educators, students and all those involved in the clinical legal education movement especially in the regions stated. a summary of the gathered information in each country is accordingly provided for the benefit of general comparative analysis. country studies: eastern africa tanzania in meeting the demands of access to justice a number of institutions have been established in tanzania to provide different forms of legal services for the poor and the ignorant members of the 14 iya, p f : “legal eduation for democracy and human rights in the new south africa with lessons from the american legal aid movement” 1994 the journal of professional legal education vol.12 p.216. 15 ibid. 16 the writer has worked at the law development centre and makerere university in uganda, east africa, at the university of swaziland and currently at the university of fort hare in southern africa. he has written a thesis on clinical legal education in the countries of botswana, lesotho and swaziland (boleswa countries). fighting africa’s poverty and ignorance through clinical legal education 19 society. they include17: suwata legal aid scheme for women established in 1989 the main objective of which are to run social services for women and children and a legal aid scheme for women with legal literacy as an important component of the scheme; wildaf/tanzania i.e. women in law and development in africa, (tanzania project) established in 1990 with activities focusing on law reform projects where women are strongly discriminated against and an on mass education campaign for women; tamwa i.e., tanzania media women’s association started in 1988 as an ngo has as one of its main activities the publication of sauti ya siti (literally “women’s voice”), the focus being to inform and create discussion and awareness on women’s legal rights; and other minor organisations. while occasionally law students participate in the above programmes more for employment rather than for credit as part of their skills development programme, the formal mechanism for their practical training takes place in the law school’s clinical programme established in 1978 and administered by the legal aid committee of the faculty of law of the university of dar es salaam. the programme has three components:18 firstly, it provides legal aid to indigent persons, concentrating mainly on legal counseling and, in selected cases, court litigation in civil matters; secondly, it promotes legal literacy activities aimed at “educating the people on vital areas of the law which have a bearing on their political, civil and human rights”.19 – the publication of a bulletin in swahili called “haki” (literally “justice” or “right”) and training of paralegals in basic aspects of the law form important aspects of this legal literacy; and thirdly, it generates law reform activities through for example, public debates on legal policy considerations, focussing especially on human rights, questions of democracy and political participation. student participation, though voluntary and not for credit, is highly encouraged in view of the benefits for professional skills development and social responsibility derived from the above activities. funding support that is received from the university and other local and international agencies evidences the seriousness attributed to the programmes. kenya there are initiatives in kenya as well, aimed mainly at providing legal services to the disadvantaged communities but with little emphasis on skills development for law students. in this regard the experiences of five organisations serve as good examples of activities directed towards eradication of poverty and ignorance: they are those of fida-kenya, kituo cha sheria, the icj kenya section, the legal services foundation and the institute for education in democracy.20 the common thread of activities for all these agencies include; • providing legal services free of charge or at very reduced cost to disadvantaged people in kenya who can not otherwise afford to pay for the services of a lawyer; • assisting the disadvantaged people in acquiring basic knowledge of the laws affecting them in their daily lives; • fostering a belief in equality for all with special emphasis on gender rights; 17 for details read: olsnes, r. 1992 legal education programmes in southern/eastern africa – report from a study tour pp25–33. 18 ibid p.28–31. 19 ibid p.29. 20 report on icj on legal services in rural areas in africa. op. cit. pp.55-67. 20 journal of clinical legal education november 2000 • publishing legal and educational materials and otherwise to assist in enhancing the level of literacy; and • promoting kenyans to become better citizens. whilst the methods used may reflect a movement away from legalistic approaches, the content of the above objectives is largely reflective of orthodox and individual-centered legal aid concerns. the problem however being that student participation in these activities in the narrow sense of the clinical legal education programmes appears minimal. no available literature associates these programmes with law students who should be benefiting from them for skills development purposes. nevertheless, a country where the majority of the people have no access to lawyers or to legal information as a whole, the limited role (to the exclusion of student’s participation) of legal aid and emphasis on increasing people’s awareness of the law needs some commendation. hopefully, emphasis on student’s participation as part of skills development programmes will be realized and implemented sooner than later. the role of the kenya law school and the faculty of law of nairobi university in this regard should necessitate a review of their present curricula. uganda unlike kenya, the policies and strategies for clinical legal education programmes are more comprehensive in uganda. there is involvement of a variety of organisations including fidauganda in implementing programmes of access to justice, but issues of clinical legal education are more prominently associated with uganda’s law development centre, an institution charged, amongst others, with the legal duty of providing legal aid and advice to indigent litigants.21 the basis for this is a report by professor gower which recommended as follows: “one valuable method of instruction, and at the same time a valuable social service, and one obviously needed in uganda, is the running of a legal aid clinic in connection with the (bar) course… at this clinic, the student under the watchful eye of a qualified supervisor, would interview, advise indigent litigants and, ideally, carry out any necessary correspondence and negotiations on their behalf ”.22 what resulted from this recommendation was the establishment of the centre with the function of organising and conducting courses of instruction for the acquisition of legal knowledge, professional skills and experience by persons intending to practice as attorneys.23 while noting the importance of this function as the basis for introduction of clinical programmes in uganda, it is also important to note that it was the centre and not the law school at makerere which was vested with that responsibility, the reason being the acknowledgment by the then government of the distinction between the academic or intellectual legal education at the university and the professional or practical skills training at the centre as an independent vocational training institute. the law development centre act of 1970 was meant to effect this separation. 21 section 2 (1) (e) of the law development centre act, 1970. 22 see paragraphs 64-5 of sessional paper no.3 of 1969 on government memorandum on the report of a committee appointed to study and make recommendations concerning legal education 1969 government printer, entebbe, uganda. 23 section 2(1) (a) of the act. fighting africa’s poverty and ignorance through clinical legal education 21 in discharging its statutory obligation with particular reference to clinical legal education, the centre’s mission is “to enhance the professional training of post graduate law students at the centre and promote the lawyer’s role of service to the community through practical experience based on learning and legal representation of needy persons”.24 to that end two activities currently exist in pursuit of its clinical legal education programme:25 • ensuring that postgraduate law students at the centre acquire practical training through realsituation cases so that they can, under supervision, interview indigent litigants, advise them, carry out any necessary correspondence and negotiations on their behalf and hopefully represent them in courts (magistrates’ courts only); • ensuring the education of the general public with regard to their legal rights and duties. due to logistical problems the above activities were set in motion only in 1998 through the generous donations of the american bar association and the united states information service. there in no available literature to suggest that student participation in these programmes is compulsory and for credit, but one can understand the fact that since the activities are still at an initial stage, more will have to be done to ensure effective student participation if the noble objectives are to be realised. the boleswa countries of southern africa a general overview26 the term “boleswa countries” refers to the three countries botswana, lesotho and swaziland. they are lumped together in this discussion not so much because they all are located in the southern region of africa but more importantly because they have a common origin of legal education and also because they are currently struggling to establish (as is the case with lesotho and swaziland) or (as is in the case of botswana) strengthen their programmes of clinical legal education as discussed below.27 prior to the split of the then university i.e. the university of botswana, lesotho and swaziland in 1975, practical training had two main components: through procedural/adjectival courses involving teaching in the final year of the llb of practical courses like laws of evidence, criminal and civil procedure and administration of estates; and through limited skills’ development courses like moot (appellate) court and mock trial practice, conveyancing, notorial practice and legal research. with the attainment of independent status, each university took steps to improve on and initiate new programmes to strengthen the already available activities of clinical education. the progress made has varied from one university to another as illustrated by the following experiences. 24 the legal aid clinic 1999 (flyer) publication of the centre p2. 25 law development prospectus 1999/2000 p.100. 26 for a detailed discussion read: iya, pf “educating lawyers for practice – clinical experience as an integral part of legal education in the boleswa countries of southern africa” in 1994 international journal of the legal profession vol 1 no.3 pp.315–342. 27 the origin relates to the establishment in 1964 at rome in lesotho of the department of law to serve as the focal point of legal education for the three countries in the then university of basutoland, bechuanaland and swaziland. it is this humble beginning which laid the foundation to the establishment of the law faculties/ departments of the current respective universities of botswana, (1982) swaziland (1975) and the national university of lesotho (since 1964). 22 journal of clinical legal education november 2000 universities of swaziland and lesotho in 1986 the council of swaziland churches established a department of legal aid mainly to educate people on their rights according to the laws of the country. this programme was, however, supplemented by a very limited activity of representation in litigation for people who could not afford to pay lawyers. another activity of a limited nature was participation in research into laws related to the department’s work, namely family law issues, including child maintenance, marital problems like divorce, custody, inheritance etc.28 the cooperation that was eventually established between this department and the department of law of the university availed the law students the opportunity to a wider scope of clinical education.29 the nature of the cooperation and student participation started in 1990 when law students were allowed to engage in the work of the legal aid department (lad) on a voluntary basis. the aim was to use the project as a stepping stone to a comprehensive clinical programme for the law students. in describing the students’ contribution and benefits derived from the programme it is stated as follows: “it is very good to make use of students. it enables lad to do more educational work, and it is also an advantage for the students to acquire some practical skills and to learn about the legal problems of people in swaziland through experience. from having participated in various seminars, it is our impression that the students do a good job giving talks in a clear and confident way and making the audience respond”.30 despite this favourable evaluation, the programme clearly remains far from the type of a comprehensive programme of clinical education that one would expect students to participate in.31 nevertheless what is offered for the law students in swaziland can not be compared to the situation in lesotho where no such programme exists.32 university of botswana a typical example of a comprehensive clinical legal education programme in the boleswa countries exists at the department of law, university of botswana. in emphasising the need for the programme, one of the founders stated as follows: “in designing the new programme, the department of law was conscious of the fact that lawyers’ competence in most, if not all, areas of law practice demands a wide range of fundamental skills. the department, therefore, departed from the traditional approach which unnecessarily separated academic and professional education and introduced a clinical legal education built in the llb programmes.”33 28 poulsen, k and jensen, m: legal aid and education in ghana and swaziland – a comparative analysis with a human rights perspective 1992 danchurchaid, denmark. pp.35–38. 29 the project of cooperation was initiated by the writer of this paper. 30 pulsen and jensen op.cit p.30. 31 the available report reveals that the cooperation between lad and the law department no longer exists. lad recruits only students in search of vocational employment. 32 with effect from 1999, the national university of lesotho has transformed its system of legal education and the introduction of a comprehensive system of clinical education is expected to be implemented as from the year 2000 as part of the new system of legal education. 33 kakuli, gm: “experimentation in clinical legal education in botswana” the commonwealth legal education association newsletter of october 1989, annex iv p1. fighting africa’s poverty and ignorance through clinical legal education 23 the clarity of objectives is further emphasised by the depth and holistic approach in executing them, important aspects are the following:34 a) emphasis of practical elements of a course. in teaching any course lecturers are required to delineate the practical elements of the course. for example, they are expected to show the students how pleadings pertaining to certain causes of action may be drafted. b) practical courses. procedural and other practical courses are taught at various levels of the llb programme. these courses include: • criminal procedure • civil procedure • evidence • legal ethics • accounting for lawyers • conveyancing and notarial practice. • law of business associations. • legal research (dissertations) c) clinical legal education programme (clep). clep is the major vehicle that the department employs to impart lawyering and professional skills. it has 4 components: (i) moot court and mock trials. each student is required to participate in a minimum number of moot court and mock trial sessions each semester. the moot court introduces students to appellate advocacy while the mock trials introduces them to trial techniques in both civil and criminal proceedings. the sessions are usually presided over by lecturers and by experienced practitioners and magistrates. (ii) legal aid clinic: each student is required to attend at the legal aid clinic 2 to 3 hours every week. the clinic enables students to experience real client-lawyer situations. under the supervision of a member of staff, the students interview clients, give the advice on their rights and obligations and draft letters of demand as well as all the requisite pleadings, affidavits and notices. students also attend pre-trial conferences and participate in the negotiations on behalf of ‘their clients’. the students actually manage cases, short of going to court. the legal aid clinic is analogous to a teaching hospital at a medical school. (iii) clinical seminars. at these seminars, skills that the students need for effective participation in the moot court and mock trial sessions, as well as the legal clinic, are taught. they include such skills as interviewing, negotiating, case management, trial tactics, and court etiquette. they also include office management and the handling of cases in specialised areas, such as divorce and motor vehicle insurance claims. simulations as well as videos are used as instructional tools. (iv) internship. during their long vacations, students are placed as interns in various legal establishments, including private law firms, high court, magistrates’ courts, financial and insurance institutions, and police stations. they perform legal duties assigned to them by their supervisors at the place of internship. at the end of the internship, they write a 34 iya, p : “ educating lawyers for practice: “ op.cit pp.331–332. 24 journal of clinical legal education november 2000 comprehensive report on their experience. the internship helps them observe the law in action and learn by doing – thus supplementing their legal aid experience. it was also argued that the above programme would assist the students to develop the following “lawyer skills”. (i) analysis of legal problems; (ii) performance of legal research; (iii) the collection and sorting of facts; (iv) effective writing and drafting (both in general and in a variety of specialized lawyers’ applications such as pleadings, opinion letters, memoranda, contracts, bills of legislation); (v) effective oral communication in a variety of settings; (vi) performance of important lawyer tasks calling on both communication and interpersonal skills, e.g., interviewing, counseling and negotiations; and (vii) organization and management of legal work. currently, therefore, the above range of fundamental skills are being developed and strengthened within the department’s component of practical training the specific experiences of south africa35 historical perspectives as already discussed, the early 1970s marked the foundation and consolidation of clinical legal education programmes in south africa. instrumental in advancing this process further was the first international legal aid conference held in 1983 at the university of natal, durban by which time the two law schools of the universities of cape town (uct) and of the witwatersrand (wits) were already undertaking some form of clinical programmes. it is reported that by 1987 law students in these universities were required to either take the practical legal studies courses including service in the clinic, or to produce a socially relevant research paper under faculty supervision.36 the relevance of the programme at wits was positively appraised thus: “the requirement constitutes a quantum leap in legal education at wits. its impact on south african legal education could be substantial as well, since no other law school in the country has yet developed so comprehensive a clinical programme.”37 however, the same report was quick to remark that although the clinic’s teaching components, administrative system, and service delivery had generally served the objectives of the programme 35 in discussing the position of south africa, i am indebted to the following scholars from whose reports i have derived a lot of inspiration and information as acknowledged hereunder. (a) mcquid-mason, d j, an outline of legal aid in south africa (1982) juta and co ltd; “the organisation, administration and funding of legal aid clinics in south africa” (1986), nulsr p.189; and “teaching social justice to law students through community service – the south african experience” 1999 transforming south african universities alice p.75. (b) gilbert, sm (passed away in south africa while on this research) report on clinical legal education in south africa 1993 university of witwatersrand and ford foundation, johannesburg in south africa. (c) bluemenson, ed and nilsen es: clinical legal education at the university of witwatersrand – reports and proposals 1987 university of witwatersrand. 36 bluemenson and nilsen, ibid p.59. 37 ibid. fighting africa’s poverty and ignorance through clinical legal education 25 well, major and immediate restructuring was necessary in anticipation of the new educational and social demands. the above new demands were soon ushered in by the release from jail of nelson mandela, the former president of south africa and their challenge required a review not only of the system of legal education but more so of clinical programmes. in response to the challenge, the ford foundation together with the u.s. centre for constitutional rights sponsored a south africa – us public interest law symposium in november, 1992,38 the significance of which was not so much the sharing of ideas and strategies for the general strengthening of south african public interest law organisations, but rather the recognition of an opening of the doors to justice for the majority of south africans emerging from generations of white minority domination, repression and denial of legal and human rights. in recognition of the emerging problems, further development and strengthening of clinical legal programmes were identified as important strategies. the argument in support was that a focus on the law clinics would enhance training opportunities especially for black law students and improve their accessibility to the legal profession, including improving their skills for better service. thus restructuring and funding were identified as critical weapons to improving legal aid clinics attached to university law schools. to that end, and since the above conference, ford foundation support coupled with the attorneys’ fidelity fund which have continued to provide financial and human resources made it possible for many law schools to establish and successfully operate legal aid clinics under the general supervision of the association of university legal aid institutions.39 the degree of their success varies but the objectives of the programme in the context of south africa remain the same, namely acquisition of legal skills, professional awareness and responsibility, promotion of social values by providing legal services to the larger society especially the majority poor; and provision of an alternative route into the profession especially for the black law graduates who serve their arcticles in these clinics. today these activities form constituent parts of an integrated programme the details of which are described in the manuals prepared by each university law school clinic. in addition to legal aid clinics as vehicles of clinical legal education, most south african law schools also have street law programmes as part of their broader system of clinical legal education. it has been argued that by enabling students to go out to schools and communities to teach about the law, the programme gives students an insight into the legal needs and aspirations of ordinary people.40 besides, the programme also compliments the students acquisition of professional values and sensitises them far beyond the formal professional ethics to broader issues of the role of law in society. the educational value of the programme is recognised by some universities which have not only established the course but also give students academic credit in the same way they do for legal aid clinic activities. in south africa street law programmes as a law course started in 1985 at the university of natal, durban and soon spread to other universities. today 17 law schools offer courses in street law and their strength and development is based on funds received from the attorneys’ fidelity fund and the us agency for international development.41 38 gilbert, sm. op.cit p.1. 39 the association was established in 1987 and the attorneys’ fidelity fund which started giving support in 1988 now provides funds on annual basis including the 39 salary of directors of legal aid clinics affiliated to the association. 40 mcquoid-mason, dj “teaching social justice… op.cit p.80. 41 ibid. 26 journal of clinical legal education november 2000 current dynamics the core activities of clinical legal education programmes are matters of common knowledge and practice in most law schools the world over. what has, however, taxed the minds of most legal educators especially in africa is how to strengthen the programmes in both qualitative and quantitative terms to meet the objectives for which they were designed. in the context of south africa, for example, it has to be appreciated that the programme has flourished amidst greatly adverse circumstances, swimming against the tide of conservation, white supremacy, in some cases oppression and constant underresourcing. all the same, progress has been made and the most recent research reveals the following:42 1. most of the clinics engaged in general practice, although some areas of law such as divorce, motor vehicle assurance (third party) claims and deceased estates (except for very small estates), were closed to them by the law societies. the vast majority of cases involved labour matters such as wrongful dismissals, unemployment insurance and workmen’s compensation for injuries; consumer law problems such as credit agreements (hire-purchase), defective products, loan sharks and unscrupulous debt collection practices; housing problems such as fraudulent contracts, non-delivery and poor workmanship; customary law matters such as emancipation of women and succession rights; maintenance; and criminal cases. during the struggle against apartheid many of the clinics at the progressive universities were involved with civil rights cases involving pass laws, police brutality, forced removals, detention without trial and other breaches of fundamental human rights. 2. with the advent of democracy in south africa in april 1994 the legal aid clinics are still dealing with poverty law problems, some of which, like housing, the quality of police services and social security have continued as a result of non-delivery by the new government, partly due to inefficiencies and obstruction by bureaucrats employed by the old regime, many of whom retained their jobs as part of the political settlement. 3. one or two clinics have moved from general practice to more specialised constitutional issues. thus at the university of natal, durban, in addition to the ordinary legal aid course there is a specialist clinical law course which focuses on women and children, administrative justice and land restitution. however, the majority of clinics continue to engage in general practice and fewer restrictions have now been imposed by the law societies. furthermore the latter also allow candidate attorneys to do their mandatory internships in accredited clinics. as yet law students do not have the right to appear in the lower courts on behalf of indigent litigants, although student practice rules have been in the pipeline since 1985. it is hoped that the new government will introduce these in the near future. 4. the street law programme uses a wide variety of student-centred activities in its teaching methods. these include role-plays, simulations, games, small group discussions, opinion polls, mock trials, debates, and field trips and street theatre. at a national level it hosts an annual mock trial and human rights debating competition as well as a youth parliament. participants are high school children involved in the street law programmes from all nine provinces in the country. the school children come from all walks of life and a special effort is made to include children from very disadvantaged families. to improve both quality and quantity of clinical legal education, a variety of strategies have been 42 ibid pp.76–77 and 80–81. fighting africa’s poverty and ignorance through clinical legal education 27 put in place and continue to be emphasised, namely:43 (a) effective teaching of lawyering skills and values and greater structuring of client service components have been enhanced by increased student participation in casework; (b) during the final year of the llb, student participation in the clinics as an integral part of their legal education curriculum has been considered critical. compulsory participation and credit allocation for work in the clinics are also ensured by many law schools; (c) the use of small groups for simulations, case analysis and issues discussions are also being implemented to enhance the quality of teacher-student interaction and the clinical learning process; (d) articulated models for evaluating the quality of all phases of students’ casework and for providing students with systematic and continuous feedback on their work characterise most clinical programmes. these models identify areas of improvement and provide direction on how that improvement may be attained; (e) the number of supervising attorneys; candidate attorneys who assist supervising attorneys and the rest of the supporting (administrative) staff is not only growing but programmes for their further training to improve efficiency are in place; (f) community-based as opposed to faculty-based clinics have also mushroomed in an effort to extend legal services as far as possible aimed at meeting the goal of supporting greater access to justice for the nation’s poor; (g) street law programmes have been integrated into academic teaching by most law schools so as to achieve the twin aims of providing students with the opportunity to acquire professional values and of disseminating legal information as part of alleviating and eradicating ignorance of legal and human rights; and (h) support in terms of financial, human and material resources have continued to be received from national (e.g. attorney’s fidelity fund) and international (e.g. the ford foundation) institutions thus providing the necessary catalyst required to advance the stated goals of quality and quantity. it is such activities as enumerated above that have combined to build the capacity of south african clinical legal education programmes, thereby increasing their potential to meet the growing demands of students in terms of improving the quality of their legal education and of society the majority of whom are still poor, let alone ignorant especially of their legal and human rights. at the end of the day, it is the millions of south africans who will benefit from better quality education of their lawyers and greater access to justice assisted by thousands of more compassionate, well-trained lawyers for whom doors to fulfillment of their potential have been opened wide for the first time in history.44 4. new challenges and initiatives for the 21st century emerging challenges despite the above revelation of successful and progressive experiences in clinical education by law schools in eastern and southern africa, these developments are not without obstacles. assessment 43 for details read gilbert , sm op. cit. pp.6-19. 44 ibid. p24. 28 journal of clinical legal education november 2000 reports have identified a variety of factors that have combined to frustrate further developments. areas of general concern and requiring particular attention include curriculum component, client service component, staff and funding components. in our earlier evaluation the critical areas to focus improvement are:45 more emphasis on skills development; addressing more seriously issues of quality and quantity through curriculum review; greater participation in research and publication for purposes of sharing experiences and debating areas of improvement; networking and cooperation to strengthen linkages. while improvements in the above areas may appear more beneficial only to enhancing the educational quality of law students, in the context of challenges facing africa, a broader approach needs greater focus. it is for this latter reason that the debate in the present paper raises issues of poverty and ignorance as emerging challenges to clinical legal education. despite the positive democratic, socio-political and economic gains of many african states, justice will for quite some time continue to remain distant and inadequate especially in the rural areas where the majority of the african population live. the legal system will continue to be inaccessible to these people because: • they are poor and can not even afford to pay for lawyers; • they live far away from centres providing legal services and have very few legal resources and facilities in their communities; • they do not know about the law, human and legal rights; and • many lawyers are ill equipped to efficiently and competently provide for their needs for development generally. to many of us the above sufficiently lays the basis for the challenges which clinical legal education faces and must address more directly and urgently than ever before. for that reason, any new mindset and alternative suggestion can not miss out such important considerations. future developments in the clinical legal education movement should, therefore, focus attention towards that direction. it has to be noted, however, that emerging challenges discussed above and the degree of their impact on social development in the various countries of africa have been influenced by and are the result of specific social, cultural, legal, political and economic realities in the different countries. several arguments have been advanced to illustrate this point:46 firstly, the dual nature of the legal system which exists in most african countries has largely resulted in people not being aware of their rights under the mostly received state law as compared to knowledge of customary or religious law and the problem of lack of awareness has been exacerbated by limited resources for legal services; secondly; the growing focus on democracy and human rights in civic education is partly explained by the intolerant nature of most african governments during the past two to three decades; thirdly, the concerns about women’s issues which has also emerged as a key challenge has to be understood in the general context of broad social practices and the patriarchal nature of most african societies which sanction the subordinate position of women. focusing on women’s legal rights is intended to improve the position of women in society by stimulating an increase in the level of awareness amongst women and the wider society in general on the problems 45 iya, pf: “educating lawyers for practice… op. ;cit. pp.366–338. 46 icj : legal services in rural areas in africa op. cit. pp.17–19 presents a few of those arguments. fighting africa’s poverty and ignorance through clinical legal education 29 affecting women; and lastly (though not least) even in the area of legal education, the question of access to justice plays a major role in explaining the need for alternative strategies. as a starting point it should be recognised and emphasized:47 • that in addition to knowledge of legal doctrines and legal methods , lawyers need knowledge of all fundamental skills and values that competent, ethical and socially responsible practitioners use in solving problems; • that lawyers need knowledge of the art of lawyering i.e. the process of acquiring those lawyering skills; • that a significant amount of education and training in the art of lawyering should occur in schools; • that law students must learn the art of lawyering through reflective (critique); live-client clinical education in a realist setting under close supervision of experienced clinical teachers; and • that professional responsibility on the part of law students require their sensitivity and positive contribution to social development through clinical programmes. by achieving the values legal education will be seen as contributing effectively to the social transformation and development in africa and beyond. new initiatives despite differences in the level and scope of development of clinical legal education programmes among countries and within countries in africa to meet the above values, three intertwined strategies have emerged over the years and are being utilised to achieve their objectives: education (acquisition of knowledge) and training (acquisition of professional skills values); provision of legal aid and information dissemination. it is in this context that we would like to share experiences over a few new strategies currently being experimented especially in south africa to strengthen and develop further programmes of clinical legal education. towards a progressive integrated and holistic skills development programmes in university law school curricula many law schools of universities in southern africa have reviewed their curricula with a view to strengthening their clinical programmes. the review at the law department of the university of botswana earlier discussed is a case in point. in south africa, the general transformation of legal education in the context of the new dispensation has necessitated the revisiting of the status and role of clinical programmes at law schools. although there is general agreement on the need to strengthen clinical programmes at law schools, the specific nature of and level at which such programmes should be offered has remained contentious. the position taken by a few universities, notably the university of fort hare supported by the black lawyers association and the national association of democratic lawyers, is the introduction of a progressive, integrated and holistic skills development programmes at the law school rather than as postgraduate studies at the 47 for details read laser, gl’s article “educating for professional competence in the 21st century : educational reform at chicago-kent college of law “chicago-kent law review (1993) vol.68 no1 pp.244–245. 30 journal of clinical legal education november 2000 universities or various schools of legal practice run by the attorney’s association. the rationale for this position is stated as follows: “developments in legal education have tended to compartmentalise the study of law into stages: academic, vocational and continuing education and have created dichotomies which have placed a wedge between scholars and practitioners. however, what is generally recognised is that such division of legal education into stages or compartments is arbitrary, unnecessary and confusing. more importantly it confuses the objectives of legal education and encourages a division within the legal profession instead of abolishing it. in the eyes of those who view legal education as a continuum such divisions are more destructive than constructive”.48 currently the goal of a progressive, integrated and holistic clinical programme incorporated in the new four-year undergraduate curriculum of the llb is being experimented not only at the university of fort hare with a similar programme like that at the university of newcastle in australia but also at the universities of natal, durban and potchesstroom.49 the distinction between this programme and that at the university of botswana and other similar programmes, is its progressive nature i.e. the teaching of skills being available and integrated at every level/year of the four year curriculum. teaching social justice through clinical programmes clinical education of law students is said to achieve the following objectives: professional ethics/responsibility, acquisition of skills, substantive law and jurisprudence, policy, law reform and community service.50 whereas other jurisdictions outside africa have introduced other socially related teaching goals when using a clinical teaching method, in africa such an approach has not featured prominently.51 currently the law school of the university of natal, durban is engaged in the experimentation of teaching social justice through clinical programmes, the initiator of which defines social justice as the concerns for satisfying the needs of society for fair distribution of health, housing, welfare, education and legal resources including distribution of such resources on affirmative action basis to disadvantaged members of the community.52 the initiative involves teaching methods far distinct from the traditional systems used in legal aid clinics and street law programmes. 48 iya, pf “strategies for skills development: the fort hare experience in curriculum design for the new llb” 1998 the journal of professional legal education vol.16 no.1 p.142. 49 for details of the experiment read : iya, pf “strategies for skills development…”ibid pp.137–149. 50 rice, s: a guide to implementing clinical teaching method in the law school curriculum 1996 centre for legal education, australia pp.21–30 (focussing on teaching goals when using a clinical teaching method. 51 for experiences in other jurisdictions outside africa read gold, n: “legal education, law and justice: the clinical experience” (1979-80) 44 saskatchewan law review p.97 and quigley, f: “seizing the disorienting moment: adult learning theory and the teaching of social justice in law school clinics” (1995) 2 clinical law review p.37. 52 mcquoid-mason, dj: transforming south african universities – op. cit p75. he further describes the details of implementation in his article. fighting africa’s poverty and ignorance through clinical legal education 31 compulsory community service by all law graduates the debate on clinical education received a new dimension when the president of the constitutional court of south africa recently argued that in view of the substantial contribution made by the state to the cost of university education, the advantage flowing from a professional degree which has been subsidised by the state’s contribution, and the need for practical training after the completion of the four-year llb degree, there are compelling reasons why practical training should be combined with service to the community as public defenders or staffers of legal aid clinics. he was addressing a workshop of a legal task team consisting of legal experts appointed by the minister of justice to review legal aid programme in the wake of failure by the legal aid board (of south africa) to meet the demands for legal services. he argued in support of internship programmes for lawyers similar to that being effected for graduate doctors in the medical profession. under the project, graduates have to do one year compulsory community service as part of the government’s plan to provide legal services to the community while at the same time providing a perfect opportunity to develop well-rounded legal (or medical) skills that would otherwise not be possible in the teaching at the university. in the case of doctors the relevant legislation is in place. the same is being proposed for law and pharmacy graduates.53 south african universities pilot projects: towards establishing justice centres one needs no emphasis on the fact that from a socio-economic and political perspective, apartheid created and sustained a discriminatory culture against the african masses. those hardest hit are rural and township dwellers and especially the youth in these areas bear the brunt of these injustices and inequalities. in addressing the particular challenge students from different universities have initiated a pilot project aimed at establishing a culture of community service in the higher education project.54 from the success of such a project a justice centre involving interdisciplinary activities will hopefully emerge to meet the social and legal needs of the rural community. the relevance of this pilot project to clinical education is the opportunity of participation of law students in these projects for purposes of enriching their commitment to community service. besides, getting to make decisions on their own and becoming multi-skilled in a variety of ways are invaluable experiences consistent with the broad goals of clinical legal education. the above-mentioned initiatives are by no means the only steps taken by legal educators and others. however, they are indicative of the commitment on their part to advance further the cause of clinical education for the benefit not only of law students but also the wider african community especially those seriously disadvantaged by the evils of poverty and ignorance. conclusion down the line of the last 40 years of independence of african countries, concerted efforts have not only been directed towards commitments to democracy and social transformation for a better life for africans, but the same have also been confronted with perennial problems and challenges 53 details discussed in the sowetan (south africa) of 15 october, 1999 (section on politics) p.2 and also in the mail and guardian (south africa) of 21 january 2000. 54 for details read: mecoamere, v: “universities pilot projects” sowetan of 31 august 1999 p.4 and khumalo, s: “wakeup and take and interest in the community” sowetan of 26 august 1999 p.14. 32 journal of clinical legal education november 2000 the result of which is the emerging search for options for a better future in the 21st century and beyond. poverty and ignorance rank very high amongst those obstacles of social development and the fight for their alleviation and/or eradication has tasked the efforts not only of governments but international organisations, ngos and other institutions which had to address these problems. the present discussion has revealed that african universities through their mission statements have indicated their commitment towards social development and their various institutions of legal education have risen to the same challenge. legal education is one area where the challenge has generated some concerns as to the extent to which it can or actually does contribute to social transformation. in that context it became necessary in this paper to establish the role of clinical legal education generally and its contribution to and impact specifically on alleviating and/or eradicating two of africa’s most “deadly” evils poverty and ignorance. the analysis and arguments in this paper go to show that the importance of clinical legal education programmes in that regard have not only been realised and appreciated, but their implementation have also been affected in several countries throughout africa. the experiences of those programmes in east and southern africa have revealed that there are variations in the implementation aspects within the different countries, although there is also much in common with regard to objectives and areas of concern. the fact that the programmes have different strengths and weaknesses make them, in our view, relevant activities to learn from one country to another with the purpose of advancing their scope and quality implementation strategies. the value of comparing these experiences is to learn from each other’s successes and shortcomings, a healthy process for addressing the challenges facing clinical education. the present paper does not claim to have achieved much by way of introducing change. the little there is, if any, goes to strengthen the hope that the discussion contained herein will successfully prompt further debate, further experimentation and continued support, taking into account the benefits to be derived from the programmes by the students and society generally in the process of achieving education and training as well as fighting poverty and ignorance. all these call for constant reviews of existing programmes based on properly researched findings and for networking and cooperation to achieve successful implementation of all clinical programmes. promoting refugee law as a means of challenging the status quo at university level education in europe: the role of the refugee law clinic stephan anagnost1 the purpose of this paper is to provide a look into the state of the art of clinical legal education at select european universities, using refugee law clinics as a model. in addition, this article will look into the work to date at refugee law clinics in the central european and baltic states (cebs) and western europe and their prospects for the future. finally, it is the purpose of this article to explore a number of the trans-atlantic initiatives between legal-aid and legal clinic programs. 38 journal of clinical legal education june 2002 1 the author , director of legal aid – legal clinics (developing human rights, migration and asylum related training tools, legal aid and protection solutions: www.la-lc.org), is a lecturer on human rights and protection issues. he currently serves as the human rights co-ordinator of the organisation for security and co-operation in europe mission in kosovo (oscemik) and has served as the united nations high commissioner for refugees project manager of the phare horizontal program towards asylum system development (pha). the opinions in this article do not necessarily reflect those of the osce or the united nations. 1. the context: legal aid for asylum seekers and refugees in europe today legal aid for asylum seekers and refugees remains a major challenge in the cebs and western europe. affordable legal aid that is both accessible and of high quality is being provided by a select few inter-, nonand governmental agencies, but it is often not enough.2 resources for the protection of refugees such as capacity, funds and time are scarce commodities throughout the region and they are often expended without being replenished. accession to the eu,3 in particular the implementation of the eu’s 1995 resolution on minimum guarantees for asylum procedures,4 has brought the question of legal aid for asylum seekers and refugees to the forefront of the discussion.5 the development of high quality, low cost legal aid structures remains a low priority. 1.1 developing protection systems the majority of cebs are currently “transit countries”; states that are normally traveled through by asylum seekers towards their intended country of asylum. asylum applications remain below that of the average for european union member states, for example, in some cebs over 40% of all asylum applicants leave the asylum procedure. in others there are no recognized refugees. these are trends that are expected to change as the cebs move closer towards membership of the european union. states are obligated to provide forms of legal aid to asylum seekers and refugees but in most states the form of legal aid is not specified nor is the level of qualification of the aid provider. in many cases funding for legal aid is not guaranteed by the state. these issues will be discussed in more detail below. 1.2 protection providers in the cebs therefore, the responsibility for providing this legal aid ultimately falls on the shoulders of the primary care giver; the asylum and refugee attorney. it is the asylum and refugee attorney who spends the extra hours researching each case and reviewing the country of origin information and the rationale behind a negative decision. this is a time-consuming process undertaken by someone who normally has an additional caseload. furthermore, the typical asylum and refugee attorney in the cebs faces sometimes severe earnings discrepancies compared with attorneys in other fields. the current economic situation in the cebs dictates a number of seemingly contradictory priorities. funding such a necessary process has been taken on in part by a number of cebs governments, but again, economic realities have placed limits on the extent to which a state can effectively provide such legal aid. non governmental organisations (ngos) have filled this gap, taking on elements of legal aid and social support for asylum seekers and refugees. promoting refugee law as a means of challenging the status quo at university level education in europe: the role of the refugee law clinic 39 2 funding for legal aid in the cebs comes mainly from unhcr. 3 which includes the implementation of the elements of the eu acquis on asylum. 4 paragraph 13.2 of the eu mg stipulates the right of an asylum seeker to legal aid during the procedure. 5 the 1999-2000 phare horizontal program asylum (pha), one of the many accession tools, has as a focus the improvement of legal aid structures and capacities in the cebs. during the course of the pha the legal aid structures were analyzed and it became clear that many state were unaware of their obligations to provide legal aid. ngos, with unhcr support, shoulder the bulk of the protection work. a number of networks exist to provide additional support6 but funding remains the greatest barrier to the continued provision of quality legal aid.7 1.3 scarce protection resources and limited capacities the largest contributor of “protection resources” towards legal aid is unhcr, whose offices in the cebs provide the majority of the direct or indirect financial and/or other support.8 unhcr, however, will not maintain this level of support indefinitely, so other protection sources need to be found.9 the eu and eu member states have only begun to recognize the need for increased investment in legal aid structures for the cebs10. current resource providers are shifting their focus and at the present moment the budgets of the cebs do not provide substantial support for legal aid.11 an interim solution will need to be found until additional resources can be found and states’ budgets effectively reflect their obligation to provide legal aid. different measures have been undertaken by a number of actors in order to increase the capacity of the cebs regarding the provision of legal aid for asylum seekers and refugees. one such approach, following the model offered by a number of north american universities, utilizes a bountiful resource that largely remains overlooked and untapped in the cebs: university law students. 2. the role of refugee law clinics refugee law clinics (or simply “clinics” as they are known) represent a cost effective way to provide high quality legal aid to asylum seekers and refugees.12 they are based on the model offered in many north american universities where law students study the theoretical elements of domestic and international refugee law and apply this theory in practice through protection work as a legal aid assistants/ex-terns under the supervision of an attorney or lawyer working with “live clients”: asylum seekers and refugees. this allows students to provide direct legal aid to asylum seekers and refugees or support services to ngos, attorneys and lawyers who provide legal aid and increases the capacity and efficiency of domestic protection resources.13 40 journal of clinical legal education june 2002 6 the asylum rights support initiative (arsi) is a legal aid network including austrian, bulgarian, czech, hungarian, lithuanian, romanian, slovak and slovene ngos. the european council for refugees and exiles (ecre), and umbrella organization made up of eu ngos, began a cebs forum known as cefran which has been dormant since 1998. ecre also provides occasional training through its legal network (elena). 7 state support is also not forthcoming, see below. 8 unhcr maintains offices in each cebs. 9 since 1997 unhcr has encouraged legal aid providers to begin to diversify their funding base, sending joint proposals to the eu odysseus, eidhr and erf programs for consideration. 10 in contrast the eu and eu member states combined have invested over 20 million euro towards the development of border regimes. 11 individual state legal aid providers and arsi partners have submitted applications for funding to the odysseus and eidhr programs respectively. 12 for a more comprehensive look at clinical legal education see aubrey mccutcheon, “university legal aid clinics: a growing international presence with manifold benefits,” journal of legal education 58 (1998). 13 in addition to providing free legal assistance, many clinics monitor conditions at refugee centers and detention centers, report on the living conditions of roma communities, and provide a year-long training in human rights to secondary school students. others have been active in organizing conferences on legal education for universities in the cebs. 2.1 clinics as protection and education working side-by-side with a practicing asylum lawyers also exposes the student to the day-to-day difficulties which the average attorney faces, consequently sharing with the attorney the satisfaction one receives by providing basic and more sophisticated humanitarian protection. the support provided to the asylum seeker or refugee by the student also shows a certain degree of respect and dignity towards a human being whose life has been threatened, who has been forced to flee his or her country and who is faced with the daunting task of accepting these experiences and starting over. such support is priceless, such an opportunity unique. after an intensive and comprehensive theoretical course on national and international aspects of refugee and asylum law, students, supervised by a qualified and recognized attorney, are introduced to an asylum seeker, “client”, and the specifics of his or her case. students may be expected to interview the client, research the facts of the case including the relevant country of origin information and the preliminary decision of the first instance, find an interpreter, prepare the briefing notes and case file, or perform any number of other tasks which go into the preparation of an asylum application or appeal. in many clinics the student assists the asylum and refugee attorney either directly or indirectly as he or she prepares the case. in addition to encouraging good humanitarian attitudes,14 enhancing the student’s protection interest and strengthening necessary lawyering skills, this combination of theory and practice gives the participating student a complete overview of the national protection scheme and domestic asylum system15 (legislation, actors, practice) and further provides insight into the complex and demanding field of refugee law. 2.2 some benchmarks clinics need to be fully associated with a university, its law faculty and board of study and should strive to provide high quality, low cost legal aid to asylum seekers and refugees. in addition a clinic should be run by a manager, supervising lawyer and university professor who take ownership for the clinic. there should be active student support and enrollment. the clinic should be a fixed element in the law school curricula, it should have reasonable access to a client base, identified sources of funding and receive active support from ngos, law firms and other protection organizations. 2.3 comparisons… clinics in north america supplement or complement domestic protection and legal aid structures (the oldest is over twenty years old). they are supported by active and well endowed university structures, established ngos, well trained professors, lawyers with decades of refugee law experience and active, dedicated students. they are also properly organized and managed in a similar way to a law office. it is no wonder that unhcr conserves its protection resources in north america and plays more the role of monitor in these states. the quality of service provided has not been questioned to date. 41 14 for example during the humanitarian evacuation of kosovar refugees to poland, the jagiellonian university human rights clinic assisted by briefing kosovars wishing to voluntarily return concerning the situation in kosovo, as well as the legal ramifications should they choose to remain in poland. 15 in fact, during 1998, a clinic in poland was responsible for successfully supporting two precedence-setting cases related to asylum seekers. promoting refugee law as a means of challenging the status quo at university level education in europe: the role of the refugee law clinic in the cebs and cis clinics are new actors on the scene (jagiellonian university human rights clinic in cracow at three years is the oldest). since 1997 cracow has been joined by warsaw as the only other refugee law clinic in poland, budapest (with two elte & klte), györ and debrecen have developed in hungary, prague (charles university) in the czech republic, latvia university in riga, concordia international university in tallinn estonia, moldova state university in chisinau and a number of other developing legal aid and refugee law programs in the region, too young to be yet determined as clinics. these clinics lack the well endowed university structures, established ngos and professors and lawyers with decades of refugee law experience that their north american counterparts have.16 as mentioned above standards for legal aid do not exist. in general clinics are not poorly managed but they simply lack skilled, well trained managers. they do have committed and dedicated professors, students and lawyers. clinics have been praised by national decision takers and unhcr offices for their attention to detail and high quality.17 one remaining concern is that without basic standards unguided clinics run the risk of taking cases which fall out of the scope of the clinic, thus bringing non-refugees into the asylum procedure. 2.4 …and cooperation an interesting fusion of north american and cebs legal aid providers has developed.18 concerned with the state of affairs regarding legal aid in the cebs, legal aid and university representatives from both regions met in two refugee law clinic working seminars.20 the seminars have focused on developing a set of legal aid provision and management standards as well as to draft a model refugee law course curriculum and resource package.21 the result of these developments will be introduced in the second half of 200022 and further clinic development is planned for early 2001 in the eu and cis. 2.5 maintaining the protection interest unhcr’s protection interest is its core and lifeblood. regarding legal aid for asylum seekers it would be difficult to find a national context worldwide where unhcr does not play some role, be it as an element of the national status determination procedure, training of officials and/or legal aid providers, or as a monitor of the quality of aid and decisions taken. quality is a concern, cost is an issue. an overcrowded national legal aid structure reduces quality and raises costs, therefore streamlining is important. low quality legal aid will lead to poor decision taking, asylum seekers may be sent back to situations of persecution, remain in detention 42 journal of clinical legal education june 2002 16 for an overview of the refugee law clinic experience in north america see richard wilson, “clinical legal education for human rights advocates,” human rights education in the twenty-first century (1997). 17 the high quality of the appeals drafted by students in hungary and poland has done much to dispel the initial skepticism exhibited by the ministry of interior toward the students. 18 these meetings have been sponsored by unhcr and the constitutional and legal policy institute (colpi), a member of the soros network. 19 western european actors were also invited but did not attend. 20 both seminars took place in cracow, hosted in part by the jagiellonian clinic, colpi and unhcr. 21 the hungarian helsinki committee, the czech ngo opu, the lawyers committee for human rights, catholic charities and unhcr are working on the set of standards. or otherwise be placed in situations where the dignity of the individual is compromised. unguided legal aid, from any provider, is a grave mistake. therefore, as a protection solution, clinics fall within the direct protection interest of unhcr to guarantee high quality, low cost legal aid. the future development of the protection interest of states and other actors will depend on the extent to which they have been effectively exposed to refugee law and asylum culture. poorly structured this will have negative ramifications in the decision taking process, the provision of legal aid and integration of refugees. as a means of advancing refugee law and asylum culture, clinics place refugee law courses in the yearly course selection and curricula of the host university. this provides an opportunity to reach a large audience with minimal investment. furthermore, in keeping with unhcr’s advancement of refugee law and asylum culture policy, clinics fall within the scope of unhcr’s executive committee conclusions number 51 “…underlining the need to develop practical applications of refugee law and principles and the importance of training courses in refugee law and protection…”.23 2.6 complimentarity of the clinics as a legal aid solution the clinics are an inexpensive complement to existing legal aid structures. clinics provide their service for free or for a minimal fee and have only the fixed costs that are common in most ngos and law offices. as a long term legal aid solution, clinics train and integrate the next generation of asylum system practitioners24 at a fraction of the price were this training to take place at the workforce level.25 the activities of the refugee law clinics have shown that with relatively little money, a credible legal assistance program can be developed, which can serve to provide a boost to badly needed legal assistance in the short-term, and at the same time, ensure that there is a systematic development of skills and competencies of potential actors in their respective asylum systems on a long term basis. 3. points to consider clinical legal education, while not completely foreign in europe, is clearly a new frontier. in some universities the concept of the clinic has been accepted, in others there is an active effort to stall its progress. there are a number of reasons for the current state of affairs and this paper will address them below. 3.1 resistance to clinics that some solid refugee law clinic models exist points to a certain degree of focussed success stories. the concept has on the whole been resisted by universities, professors and the legal aid community that clinics seek to support. this resistance developed for a number of reasons: 43 22 in the form of a regional seminar hosted by the hungarian helsinki committee, colpi and unhcr. 23 1988 executive committee 39th session no. 51 “promotion and dissemination of refugee law” 24 the students who took part in the clinics have gone on to intern inter alia at the council of europe’s directorate of legal affairs ad hoc committee on asylum, refugees, and stateless persons; foreign ministries; undp; and unhcr. 25 at the current rate every dollar invested in training one decision taker on the basics of the refugee definition would be equal to training three clinic students in the same topic. promoting refugee law as a means of challenging the status quo at university level education in europe: the role of the refugee law clinic • timing: clinics arrived on the shores of europe as a north american product at a moment when europe was interested in creating a sense of cultural as well as political independence. concepts that appear to have north american roots are often rejected out of hand. • poorly packaged, poorly sold: clinics in general and refugee law clinics in particular did not receive the proper cultural filter at first. clinical legal education lacked a coherent guiding agency that could support developing programs and help to dispel myths. • bad development plans: in two cases, one at charles university in prague, the other in bucharest in romania, a rather sophomoric strategy was initiated by a proponent of the clinic model that resulted in a complete rejection of clinical legal education by the deans of both schools.26 • competition: bar associations have seen clinics as potential rival rather than a complement. • tradition: many law schools pride themselves on their “straight lecture” style of teaching. • existence of practice opportunities: a number of universities already have externship opportunities. • limited incentives: most law schools are state funded. • ‘ivory tower’ syndrome: professors see their role and the role of the university as one of provider of theoretical knowledge. they therefore ignore the growing client base for human rights and poverty clinics.27 the lack of well endowed universities in europe leads to an additional argument against certain clinics and clinical models. with refugee law clinics there are a number of organizations and the unhcr that might step in to support the development of existing clinics. other human rights and poverty oriented clinics do not have such “engines” or motors behind them. this is a crucial argument and one that is most convincing. 3.2 arguments in favor there are a number of points that make clinical education development difficult. these are well countered with a number of arguments in favor of clinical development: • perfect timing: european universities are coming under pressure to become more self sufficient.28 while this current development will probably not lead to tuition driven universities, it does mean that european universities will undergo major changes in the years to come. law programs will need to be streamlined and made more attractive to potential students. a clinical program would certainly add weight to any university program. • failure of existing extern-ships: both austrian and german law schools provide a practical period for all junior lawyers wanting to join the bar. as these opportunities arise only after the main course of study has been completed, externships hosts (law firms, judges, ministries, etc.) are forced to retrain the junior lawyers. this costs time and money. 44 journal of clinical legal education june 2002 26 in the case of charles university, the public interest law initiative (pili) recommended to a ngo partner interested in establishing a clinic, to take a strong stand and pressure the law school, one with over 400 years of history, to adopt the clinic model. the deans rejected the concept following a number of discussions with the ngo. 27 this includes refugee law as well as housing, access to justice, womens’ rights, etc. 28 universities in austria instituted a minimal tuition of $750 for the first time in 2000. other european universities are considering similar measures. • need expressed from certain sectors: though the average european social system provides good general care and coverage to its citizens, there remains a large need for lawyers with human rights and poverty oriented legal experience. clinics fit in nicely. 3.3 creating the necessary environment resistance to clinical legal education can be broken down through better co-ordination of efforts to promote, develop and sustain different models. this may come in the form of partnerships with existing clinical programs in north america.29 but this will only cover a small number of clinical programs and will require a huge investment of time to create awareness on both sides of the atlantic. the strategies developed in these partnerships regarding refugee law clinics might be applicable to other clinical programs: • an external support partner with clear interest in the success of the clinics was identified. in this case it was unhcr supported by the legal aid-legal clinics network. • responsible professors with time and energy to commit to the establishment and development of the clinics were identified and supported. • national ngos with mission statements that included legal aid for asylum seekers ad refugee were approached. • strategies were developed between this team as to how to best approach the university and the availability of resources. • outreach was done in the form of open house seminars for students. this process was monitored in a number of universities and lessons were shared for feedback. 3.4 existing stumbling blocks the argument raised above regarding the need to identify the proper long term support partner for a clinic in the absence of a well endowed university program needs to be discussed further. currently, there is an absence of credible partners to help support the general establishment and further development of any university based clinical program.30 there is clearly a need for labour law clinics throughout europe as legal services for the average blue collar worker or immigrant are too expensive. trade unions and/or the international labour organization (ilo) would be the logical long term partners for such clinics. neither have been approached nor are they active. amnesty international human rights watch and/or the international helsinki federation would be the appropriate partners for human rights oriented clinics. these organisations do not have the capacity or the expertise to do so, at least not at the present stage.31 45 29 in the field of refugee law clinics this comes in the form of the “sister’s program”, linking refugee law clinical programs in north america and central europe. 30 refugee law clinics receive support from unhcr but this is done on a clinic by clinic basis and is not unhcr policy. 31 national helsinki committees are active in the refugee law clinic field. as with the case of unhcr, this is not a central policy but a national preference. a complete review of existing refugee law clinic support partners was done by the author in 1999 and updated in 2000. the review analyzed current and future capacity and interest. promoting refugee law as a means of challenging the status quo at university level education in europe: the role of the refugee law clinic again, the approach taken by the refugee law clinics regarding support partners might yield some valuable lessons learned. this would require that there be organizations ready to take on the task of promoting and developing clinical legal education programs. a credible organization, at the time of the writing of this paper, does not exist. 3.5 two helpful case studies the hungarian case: the work of the hungarian helsinki committee (hhc) and elte university in budapest is an excellent example of the right clinic formula. hhc provides legal aid for a number of target groups in hungary including asylum seekers and refugees. working in partnership with elte law school since 1997, the hhc model has been adapted to other cities in hungary where legal aid is needed. lawyers and private law firms are fully integrated into a clinic program that provides refugee law, theory and lawyering skills combined with a year of externship with hhc supported lawyers. though the project is in its development stage, effort has been made to integrate modern case and office management practices from other programs and the clinic team is engaged in a number of skills development partnerships with north american universities.32 this overall development is part of a larger strategy developed between hhc and legal aid-legal clinics in 1999. this partnership has included a number of seminars for refugee law clinics in the region. hhc will play a large role in the overall development of refugee law clinics in the cebs through to 2004. the austrian case: the hungarian case is somewhat unique as there was strong support from elte law school and hhc from the outset. developments in austria are following the normal pattern of doubt and resistance. two austrian universities were identified in 2000 as potential clinical education standard bearers; graz and salzburg. both universities have an ancient legal education tradition dating back to the 16th century. neither experiments with clinical legal education. in 2000 the author met with two professors from both universities to assess the interest and the potential stumbling blocks towards the development of refugee law clinics. the professors showed a great deal of interest and admitted to experimenting with case studies and simulations in their courses to provide students with some additional skills. development plans were drawn up with each team that included future meetings with responsible deans and other faculty, as well as student open houses, etc. in 2001 the author revisited both universities to assess development. the salzburg team got as far as discussing the concept with local ngos and was able to organize a partnership meeting for june 2001. the graz clinic, operating through the new european training academy at the university, began to hold weekly courses on refugee law complemented with skills development sessions for students. a practical element was due to follow in autumn 2001. though the professors are not trained in clinical legal education, they incorporate a number of non-traditional teaching methods that allow students to move closer to practical knowledge of the law. neither has reached the stage that involves externships. 46 journal of clinical legal education june 2002 32 management support has come in the form of working seminars for the hhc team with lawyers from the catholic charities legal aid network and the georgetown university clinic program. careful planning and development was present at both universities and the stumbling blocks mentioned above were largely avoided as a result. 4. summary and preliminary conclusions to say that clinical legal education is revolutionizing european legal studies is an exaggeration. the changes and developments should be noted, in particular in the field of refugee law development. there are valuable lessons learned that other clinical programs may want to filter into their own scenarios. protection issues are different throughout europe. the cebs, as both transit countries and countries of asylum, have more or less newly developed legislative frameworks and practices. it has been recognized that the cebs currently face certain economic constraints and a shortage of well trained refugee lawyers who are able to function within these systems as providers of legal aid or as decision takers. this may be the reason why clinics have developed more rapidly in the cebs. in addition, the pending entry into the eu of many of the cebs adds another level of complexity to their asylum systems. therefore, clinics in the cebs are ideally poised to provide the next generation of lawyers with the training they need to operate in a more sophisticated asylum system. the countries of the cis are transit countries and/or recipients of mass influxes of asylum seekers. in addition, their asylum systems are in the first stage of development. legislative framework and practice, if any, are in their infancy. needs are more short-term and stop-gap regarding strengthening the current protection capacity and more long-term regarding the creation of well trained refugee lawyers. therefore clinics could be used to train a large number of decision takers to handle the current need with an overall goal of providing the developing asylum systems with the necessary practitioners. western european/eu states have more sophisticated asylum systems with long standing traditions of refugee protection and practice. legal aid is normally provided by state authorities and supplemented by ngo support. according to some, the quality of decision taking and legal aid is sometimes in question in a number of states. in addition, legal aid in western europe is expensive. clinics have the opportunity to complement the current legal aid structures and provide a pool of well trained refugee lawyers and/or decision takers. as high quality, low cost legal aid for asylum seekers and refugees remains a universal challenge the clinic concept remains one such way to meet the growing protection needs in countries around the globe. careful research and analysis of the protection needs of each country will be the key to determine whether a refugee law clinic has a place in the national protection scheme. 4.1 needs there is a clear lack of experienced clinical teachers in europe. the programs that do exist manage because there is a professor with a great deal of dedication who keeps the program alive. educational tools and resources are being developed but financial resources are scarce. this inhibits development over the long term and invites burn out on the part of the professors who invest not just their time but their money as well. general clinical programs desperately need an organization that can support the varied levels of the clinic including skills for professors and lawyers, training tools and resources and exchange possibilities. support at this stage is piecemeal and without a strategic outlook for the future. 47 promoting refugee law as a means of challenging the status quo at university level education in europe: the role of the refugee law clinic 4.2 existing resources interest has been raised in the clinical concept over the past two years and a number of professors have actively sought support and information. this is probably the most telling sign. the human resources are available but they need to be informed and reassured that the time they invest in developing clinical legal programs will receive support from outside.33 it is worth mentioning again that there are more than enough clients in europe who would benefit from the clinical programs. 4.3 where to go from here? first and foremost, clinicians who want to take an active role towards the development of clinical programs elsewhere need to make themselves known. the resources that are currently available should be compiled and circulated. professors from outside of north america need to be provided with a clear set of guidelines and contact persons so that the first steps, such as putting together a clinic team and a resource assessment, can move forward in parallel. once a strategy has been developed, organizations such as amnesty international and ilo should be approached for support and guidance. developing programs will find it easier to convince their universities if they know that they can count on outside support. lessons learned from the refugee law clinic development might prove useful in this regard. 48 journal of clinical legal education june 2002 33 it is interesting to note that clinical legal education has become a rallying cry of a number of organizations now working in china. 201077je_jcle_july07 the challenge of providing work-integrated learning for law students – the qut experience melinda shirley* iyla davies** tina cockburn*** tracey carver**** summary: this paper explores the elements necessary for a university to create an academic model for a successful work-integrated learning experience in light of the current policy imperatives of the higher education sector in australia. it identifies some of the practical issues encountered in attempting to implement those models and hypothesises on what an effective work-integrated learning experience for undergraduate law students should look like taking into account the available research on students’ perceptions of engaging learning experiences. it culminates in the proposal of a virtual work integrated learning project which is currently under design in the faculty of law at the queensland university of technology. introduction australian universities have been heeding the call to produce more capable graduates since the 1980’s.1 much time and attention has been devoted to the incremental development of graduate attributes to journal of clinical legal education december 2006 134 * ba llb(hons)qld, llm bond, assistant dean, learning and teaching, faculty of law qut ** llb(hons)qut, llm qld, assistant dean, international and community, faculty of law qut *** bcom llb(hons) qld; llm qut, grad cert ed (higher ed) qut, seda accredited teacher in higher education, senior lecturer, faculty of law qut **** bbus (accy)(dist), llb (hons) qut, llm cantab, lecturer, faculty of law qut an earlier version of this paper was presented by melinda shirley, iyla davies and tina cockburn at acen (australian collaborative education network) conference, griffith university, gold coast, australia, september 2006. 1 legal education and professional development – an educational continuum aba chicago 1992 (maccrate report); c mcinnes, s marginson & a morris, australian law schools after the 1987 pearce report, agps canberra 1994. complement the acquisition of professional knowledge in every field. that shift in educational focus which centres on building students’ skills and self awareness for future employment has also highlighted the desirability of work-integrated learning experiences to provide a context for skills development and an opportunity for students to prepare for the transition from university to professional practice. research into work-integrated learning experiences is a problematic exercise. whilst large numbers of students around the world participate in work based education each year, there is great diversity in the nature of the programs offered. such experiences range from highly structured university controlled placements for academic credit, to informal situations where students volunteer to be part of a workplace outside of the formal university semester. the size of the student cohort in question, the nature of the professional experience sought and the geographical situation of the institution will all impact on a university’s ability to create an enriching workplace experience for students. in addition, cyclical factors such as economic prosperity, political stability and environmental impact are also likely to affect the availability of collaborative education partners. compounding the definitional problems is the fact that there are many different titles for work-integrated learning experiences in the educational literature including: cooperative education, field placements, internships, experiential learning programs and externships, and these experiences are being offered and evaluated across fields as diverse as nursing, engineering, education and business. despite those challenges, this paper will attempt to identify the core elements of an effective workintegrated learning program in light of the current policy imperatives of the higher education sector in australia. it will identify some of the practical issues encountered in attempting to implement those models and will hypothesise on what an effective work-integrated learning experience for undergraduate law students should look like taking account of the available research on students’ perceptions of engaging learning experiences. this paper will culminate in the proposal of a virtual work integrated learning project which is currently under design in the faculty of law at the queensland university of technology as a possible solution to the experiential learning needs of undergraduate law students at that university. the search for an academic model what is work-integrated learning? the united states national commission for cooperative learning (usnccl) defines cooperative education as: …a structured educational strategy integrating classroom studies with learning through productive work experiences in a field related to a student’s academic or career goals. it provides progressive experience in integrating theory and practice. it is a partnership among students, educational institutions and employers, with specified responsibilities for each party.2 the engaging students in work placement (esiwp) working party defines work-integrated learning as: “the integration of academic learning experiences with those in professional practice through workplace experience (including work placement, work experience, practicum, clinical placement, internships etc) the challenge of providing work-integrated learning for law students – the qut experience 2 t. groenewald,. towards a definition of cooperative education, in international handbook for cooperative education, boston: world association for cooperative education, 17-26 (r coll & c eames eds., 2005). 135 that secures learning outcomes that are both transferable and applied”.3 working from that definition, the griffith university work integrated learning management guide identifies the following five features of effective work experience: • meaningful work; • induction; • assessment; • reflection and debriefing; and • monitoring of the quality of outcomes. research into work-integrated learning programs has been summarised through literature reviews, attempted definitions and conceptual models in educational literature for many years.4 however in this field, where educational practice is so affected by the pragmatic factors of the workplace, even theoretical models appear to be designed to be context specific. overarching theory gives educators comfort in designing learning experiences as it ensures our practices are informed by research, however in this field, where theories of learning are only one of the many factors which impact on the success of the learning experience, they are arguably not as helpful.5 this is particularly so where the proposed task requires the creation of a new type of work-integrated experience which is intended to operate in the digital environment and not in the physical workplace which was the focus at the time the boud, kolb and biggs models were conceived. the traditional educational context for work integrated learning centred on the provision of technical or manual experience to bring theory to life in fields such as engineering and medical science. in that paradigm students were expected to participate in normal “working” hours and by a physical contribution to the workforce. in the digital age the very nature of the “workplace” is changing to accommodate workers who may never physically attend the office but may be engaged on a full time basis from a remote location. the technical skills required for these workers are quite different. manual skills are being replaced by information communication technology (ict) skills such as electronic mail, messaging services and video conferencing. synchronous “on the spot” person to person communication is being replaced by asynchronous digital communication which allows people on opposite sides of the globe to work collaboratively on a project despite their different time zones and geographical locations. 3 l. cooper, j. orrell, & m. bowden, workplace-learning management manual., a guide for establishing and managing university work-integrated learning courses, practica, field education and clinical education, south australia: flinders press (2003). 4 j. dewey, experience and education. new york:macmillan (1938)., d. kolb, experiential learning. englewood cliffs,nj: prentice hall (1984)., d. boud, creating a work based curriculum. in d. boud & n. solomon (eds.) srhe and open university press, uk, 45,45 (2001)., s. dressler, and a. keeling, benefits of cooperative education for students, in international handbook for cooperative education, boston: world association for cooperative education, 217-236 (r coll & c eames eds., 2005)., t. groenewald, towards a definition of cooperative education, in international handbook for cooperative education, boston: world association for cooperative education, 17-26 (r coll & c eames eds.,2005). 5 g. van gyn, and e. grove-white, theories of learning in education, in international handbook for cooperative education, boston: world association for cooperative education 27-36 (r coll & c eames eds. 2005). journal of clinical legal education december 2006 136 who are the participants? work-integrated learning programs generally involve at least three parties: the student, the workplace supervisor and an academic coordinator. from the students’ perspective work-integrated learning experiences provide an opportunity for students to augment their theoretical training with practical skills, learn about career options, explore their abilities and mature as they move towards transition to the professional workplace.6 where the experiences involve physical placement in a workplace they may also present some drawbacks from the student perspective including transportation costs, additional expense in meeting workplace dress standards and limited opportunities to obtain experience in the student’s particular area of interest.7 from the employer’s perspective the potential benefits of work-integrated learning experiences include the opportunity to: screen potential graduate employees, engage positively with the higher education sector, increase market awareness of the firm culture and take advantage of students’ currency of knowledge in the relevant discipline field. the potential drawbacks include difficulties in: managing relationships with students8 giving appropriate feedback,9 finding physical space for students who are placed in the organisation and the pressure of having to supervise the student in an already busy schedule. from the university’s perspective work-integrated learning opportunities improve the quality of the educational experience for students, offer a recruitment advantage, assist the university in building networks and stimulate curriculum development. international work experience placements also offer universities the opportunity to enhance their international status and develop their international expertise.10 the potential drawbacks from the university perspective include: the logistical difficulties often encountered in finding placements, a lack of staff with the necessary practical experience to coordinate the program effectively and the lack of career development opportunities for the academic staff members involved in such programs as distinct from research based opportunities.11 the higher education context the higher education sector in australia has undergone a period of rapid change during the last decade. an altered funding model, new levels of competition between providers, an increasing emphasis on research quantity and quality and a larger, more diverse and demanding student population are all factors which affect australian university strategic plans in the digital age. the strategies currently employed by australian universities in these changing times are both proactive and reactive in nature. a substantial number of strategies are aimed at improving the quality of the educational experience for the new student body. the challenge of providing work-integrated learning for law students – the qut experience 6 c. cates, & p. jones, learning outcomes and the educational value of cooperative education, (1999), http:// www.waceinc.org. 7 l. bates, building a bridge between university and employment: work integrated learning. (2005). 8 n. pepper, supervision: a positive learning experience or an anxiety provoking exercise?, australian social work, 55-64 (1996). 9 m. eisenberg, k. heycox & l. hughes, fear of the personal: assessing students in practicum, australian social work, 33-40 (1996). 10 m. weisz, & r. chapman, benefits of cooperative education for educational institutions, in international handbook for cooperative education, boston: world association for cooperative education 247-258 (r coll & c eames eds., 2005). 11 martin in j. orrell, l. cooper, & r. jones, making the practicum visible, herdsa conference 1999, 1 (1999) http://www.flinders.edu.au/teach/t4l/practicum/resources/p df/herdsa99.pdf. the higher education research and development society of australasia is a scholarly society for people committed to the improvement of teaching and learning in higher and tertiary education. the herdsa annual conference attracts academics from throughout australasia and acknowledgement of this issue at the annual conference is indicative of its relevance to the australian higher education sector. 137 course experience questionnaire (ceq) one useful source of data which australian universities access in order to gain insight into students’ perception of their educational experience is the data collected by the course experience questionnaire (ceq). this is an instrument which has been used over the past decade to obtain student feedback on the quality of australian higher education. every graduate is surveyed a few months after the completion of their studies. an interpretation and analysis of this data was recently undertaken as a major research project titled ‘accessing the student voice’ and was completed in december 2005. the project was funded by the federal department of education, science and training and included an analysis of what ‘promotes engagement in productive learning in australian higher education’.12 one part of the project involved a number of workshops with key university staff held throughout australia to discuss a range of issues relating to the study of the ceq data. it is noted that there was general agreement that in the current higher education context, universities faced a dilemma involving ‘how best to balance mission (achieving the key purposes of the university) with market (giving students what they want in order to gain and retain them – even if this is specific, skills-focused job training)‘.13 participants concluded that managing this dilemma required universities to be continuously aware of rapid changes in both their disciplinary and external environments. improving the qut student experience queensland university of technology (qut) is conversant with the need to balance mission and market and has utilised its strategic planning process to emphasise the importance of improving the student experience while strengthening ‘real world’ engagement. one of the university’s learning and teaching strategies is to ‘strengthen the real-world focus of learning experiences through developing and strengthening active partnerships and collaborations within and beyond the university’.14 the beneficial learning experiences created through work-integrated learning have proven to be a positive factor in improving the student experience with research showing that ‘engagement in activities contribut[es] to enhanced academic outcomes’.15 community engagement through work-integrated learning qut connections with the community have been strong and enduring. in fact, the current qut mission is ‘to bring to the community the benefits of teaching, research, technology and service’.16 the emphasis on community activities has recently changed from ‘community service’ to ‘community engagement’ with a focus upon outcomes which are mutually beneficial for both the university and the community. this trend has been given a national impetus through the work of the australian universities community engagement alliance (aucea). this organisation is committed to a form of engagement which is clearly two-way by promoting ‘direct and mutually beneficial interaction between universities and communities’.17 12 g. scott, accessing the student voice: using cequery to identify what retains students and promotes engagement in productive learning in australian higher education, final report of a project funded by the department of education, science and training. (2005) http://www.dest.gov.au/ sectors/higher_education/publications_resources/profiles/ access_student_voice.htm 13 id. 14 qut learning and teaching plan 20052009, (2005), http://www.qut.edu.au/about/learnteach.jsp. 15 a. furco, strengthening community engagement in higher education. seminar held at queensland university of technology, brisbane, october 12, 2005 (2005). 16 qut mission, (2005), http://www.qut.edu.au/about/ university/mission.jsp. 17 aucea (australian universities community engagement alliance inc.) (2006), http://www.aucea.net.au/. journal of clinical legal education december 2006 138 work-integrated learning clearly falls within this form of community engagement. it has recently been suggested that one measure of the community engagement undertaken by universities should include an assessment of the percentage of students undertaking a domestic or international workplace learning experience.18 the law perspective the faculty of law at qut is one of the largest law faculties in australia. in 2005 the faculty had 2419 students enrolled in its bachelor of laws (llb) and associated double degree courses. of those, 647 were enrolled as external students. a diverse range of undergraduate and postgraduate courses are delivered by the faculty in conjunction with practical legal training programs which enable the requirements for admission to professional legal practice to be satisfied. the faculty caters effectively for the diverse learning needs of students through a range of onand offcampus delivery modes, all of which include components of online delivery which provide a greater level of flexibility in terms of accessing study materials and resources, access to staff and the completion of assessment items. in addition, steps have been taken to ensure that graduates enter the workforce with appropriate levels of theory and knowledge combined with the requisite capabilities and skills required of both law and justice professionals to operate effectively in the context of professional practice. in its major review of the federal civil justice system19 the australian law reform commission concluded that legal education should be more concerned with “what lawyers need to be able to do “ as distinct from the traditional australian approach which has been centred around “what lawyers need to know”. in response to that recommendation and a number of other reports echoing the same theme, the qut faculty of law integrated professional attributes within the content of all substantive undergraduate law units to facilitate incremental capability development throughout the llb degree. to ensure incremental development, each specific skill was broken down into three levels to represent gradual attainment. the first level involves scoping of the component parts of the skill, the second level provides an opportunity to practise the component parts of the skill and the third level offers an understanding of the skill in the context of practice. broadly speaking, those three levels are developed through core units in the first, second and third years of the llb respectively. essential to the project was the pedagogical aim to embed skills training within the content of learning and to specifically assess competency levels within each of the skills through a reflective process that would lead to the development of a “student capability profile”. to be effective, this learning approach requires each skill to be developed through a cycle of instruction, practice, feedback and assessment both horizontally and vertically through the llb degree, and that project was implemented effectively from 2000 to 2003. attempts to physically place undergraduate law students into relevant professional workplaces have not however been as successful in the qut experience and this is due to the large number of students in the undergraduate program and competition from other law faculties for the limited number of placements available in brisbane. in addition there is a significant cohort of post-graduate students the faculty must place through the graduate diploma in legal practice program. the law admissions consultative the challenge of providing work-integrated learning for law students – the qut experience 18 s. harding, engagement: wobbly third leg or core approach?, knowledge transfer and engagement forum, sydney (2006) 19 alrc dp 62, august 1999. 139 committee of queensland requires that every entry level lawyer should have experience in a law office before being admitted. for that reason the faculty must ensure that each graduate diploma in legal practice graduate has a placement experience in a law office to satisfy legal practitioner admission requirements. with an annual student intake of approximately 232 in the qut legal practice course in 2005 and plans for further growth, the faculty’s professional relationships are currently under strain to find geographically convenient placement opportunities for those post-graduate students. as a result, work-integrated learning experiences for undergraduate law students have to date been restricted to specific internship positions (approx 25 per year), voluntary vacation placement opportunities and vacation research experience scholarships for high achieving students. in our current curriculum we are therefore only able to offer approximately 14% of our undergraduate students a university controlled workplace learning opportunity. converging work-based and campus learning through ict new information and communication technologies (ict) are transforming the practices of both universities and workplaces. the internet, mobile technologies and particularly email have transformed traditional methods of communication within organisations. as the concept of “workplace” expands to accommodate employees who may never physically attend the office but may be engaged on a full time basis from a remote location, the communication methods utilised within such workplaces are also changing. synchronous person to person communication is being supplemented and in some cases replaced by asynchronous digital communication which allows people on opposite sides of the globe to work collaboratively on a project despite their different time zones and geographical locations. at the same time icts are contributing to a surge of global initiatives in online learning and elearning in campus-based higher education. whilst many universities are now using ict for the flexible delivery of content, there are fewer examples of the effective use of technology to enable student centred and flexible learning which focuses on the learner rather than the transmission of content by the teacher.20 given the transforming nature of workplaces and the radical changes in work practices in organisations which have a sophisticated technological infrastructure, it is submitted that authentic work-integrated learning experiences can and should now be created in the virtual paradigm. similarly, given the wealth of current research documenting the changing nature of the way today’s students learn and the competing demands on their time, it is submitted that work placement opportunities which enable flexible delivery and flexible learning are also a desirable addition to the traditional physical placement programs offered by universities. engaging student learners engaging student learners – accommodating learning preferences of generation y students in 2004, it was predicted21 that by 2006 the majority of undergraduate students attending australian 20 d. radcliffe, technological and pedagogical convergence between work-based and campus-based learning, educational technology and society 5(2) (2002). 21 d. jonas-dwyer & r. pospisil, the millennial effect: implications for academic development, (2004), http://herdsa2004.curtin.edu.my/contributions/refereed papers.htm . journal of clinical legal education december 2006 140 universities would belong to generation y;22 that is, born after 1980: and also known as millennials, echo boomers digital natives or the net generation. generation y are the first generation of students to have grown up with digital media and information technology in a developed, prolific form.23 technology forms such a key part of who they are that, for generation y students, computers and the internet are regarded as simply part of the environment and not as “technology”; this term is reserved only for the most recent “gadgets”.24 the variety and level of generation y’s exposure to information technology media during their formative years has led to a shift in learning preferences as compared with past student generations.25 although other factors, in addition to theories of learning, will impact on the success of work integrated learning programs,26 it remains appropriate to consider the learning preferences of the majority of participating students when developing the virtual work placement model. research shows that as student attitudes and aptitudes change, so too do their learning preferences, and suggests that in order to ensure a more effective learning environment, learning and teaching strategies must adapt to meet these preferences.27 by taking into account what today’s students value most, it is hoped that we can more effectively engage them, with a view to positively influencing their learning experience, understanding and learning outcomes. oblinger28 identifies technology use, experimental activities, structure and teamwork, as the learning styles preferred by generation y. the significance of these learning styles to the design of a virtual work integrated learning model is considered below. the challenge of providing work-integrated learning for law students – the qut experience 22 generation y are also known as millennials, echo boomers, digital natives and the net generation. see further c. raines, managing millennials, (2002), http://www.generationsatwork.com/articles/ millenials.htm; m. prensky, digital natives, digital immigrants, (2001), http://www.marcprensky.com/ writing/default.asp, d. tapscott, growing up digital: the rise of the net generation. new york, ny: mcgrawhill (1998). 23 c. raines, managing millennials, (2002), http://www.generationsatwork.com/articles/millenials.htm . 24 j.l. frand, the information age mindset: changes in students and implications for higher education. educause review, 35(5), 15-24 (2000); d. oblinger, boomers gen-xers millennials, understanding the new students. educause review, 38(4), 37-47 (2003). 25 m. mccrindle, understanding generation y., principal matters, 28-31 (2003); d. oblinger, & j. oblinger, is it age or it: first steps toward understanding the net generation, in educating the net generation, 2.1-2.20. (d.g. oblinger & j.l. oblinger eds. 2005), http://www.educause.edu/ content.asp?page_id=5989&bchp=1 ; d. oblinger, boomers gen-xers millennials, understanding the new students, educause review, 38(4), 37-47 (2003); j.l. frand, the information age mindset: changes in students and implications for higher education. educause review, 35(5), 15-24 (2000); p. mellow, the media generation: maximise learning by getting mobile, (2005), http://www.ascilite.org.au/conferences/ brisbane05/blogs/proceedings/53_mellow.pdf . 26 g. van gyn, and e. grove-white, theories of learning in education, in international handbook for cooperative education, 27-36, boston: world association for cooperative education, (r coll & c eames eds. 2005). 27 b. costello, r. lenholt, & j. stryker, using blackboard in library instruction: addressing the learning styles of generations x and y., the journal of academic librarianship, 30(6), 452-460 (2004); d. jonas-dwyer, & r. pospisil, the millennial effect: implications for academic development, (2004) http://herdsa2004.curtin.edu.my/contributions/refereed papers.htm ; j.l. frand, the information age mindset: changes in students and implications for higher education, educause review, 35(5), 15-24 (2000); d. oblinger, & j. oblinger, is it age or it: first steps toward understanding the net generation, in educating the net generation, 2.1-2.20 (d.g. oblinger & j.l. oblinger eds. 2005), http://www.educause.edu/content.asp?page_id=5989&bc hp=1 . 28 d. oblinger, boomers gen-xers millennials, understanding the new students, educause review, 38(4), 37-47 (2003). 141 technology generation y students are technology savvy and therefore relate to and appreciate the flexibility and convenience of an online learning and teaching environment. like all students, they engage better with materials anchored within their own experience and possess a greater potential for deeper learning and understanding when allowed to study on their own terms as to time, place and pace.29 raised in a world of fast food and internet banking, they have ‘zero tolerance for delays’30 and expect information and resources to be available when and where needed. this desire for convenience or flexibility is enhanced by the fact that many students of this generation balance their study and social life with part or full time work.31 the virtual work placement model as an alternative to physical placements will provide students with flexibility in the context of a learning experience which may more effectively engage today’s students who are used to the constant connectivity provided by digital media, such as the internet and online interactive gaming.32 such an approach to communication will also be aligned with what actually occurs in the workplace and will therefore be authentic. indeed poole and zhang33 claim that ‘once people become accustomed to working in virtual contexts – as they rapidly are’ – the ability to work in virtual teams will become a ‘taken for granted skill.’ however, as more technology is not necessarily better, the model developed will endeavour to focus on the activity enabled by the technology, rather than the mere use of technology per se, so that the virtual learning model will be engaging – by making it more interactive, social or student-centred34 – rather than simply focusing on content delivery of knowledge or the packaging of lectures and structured readings online.35 experimental activities kinaesthetic and visual learning styles are most prevalent in generation y learners36 – these students learn best through multi-sensory media such as diagrams, graphics, video and flow charts, rather than text. for generation y, life is an interactive, rather than passive, experience – they are achievement driven and ‘creative, communicative participants rather than … passive, reception-only consumers’.37 29 m. le brun, & r. johnstone, the quiet revolution, sydney: law book company (1994). 30 j.l. frand, the information age mindset: changes in students and implications for higher education, educause review, 35(5), 15-24 (2000). 31 k.manuel, teaching information literacy to generation y, journal of library administration, 36(12), 195-217 (2002); c. raines, managing millennials, (2002), http://www.generationsatwork.com/articles/ millenials.htm . 32 d. oblinger, boomers gen-xers millennials, understanding the new students, educause review, 38(4), 37-47 (2003). 33 m.s. poole & h. zhang, virtual teams, in the handbook of group research and practice, 363-384, thousand oaks: sage publications, (s. wheelan ed., 2005). 34 d. oblinger, & j. oblinger, is it age or it: first steps toward understanding the net generation, in educating the net generation, 2.1-2.20 (d.g. oblinger & j.l. oblinger eds. 2005), http://www. educause.edu/content.asp?page_id=5989&bchp=1 ; j.l. frand, the information age mindset: changes in students and implications for higher education, educause review, 35(5) 15-24 (2000); d. laurillard, multimedia and the changing experience of the learner, british journal of educational technology, 26(3) 179-189 (1995); d. radcliffe, technological and pedagogical convergence between work-based and campus-based learning, educational technology and society, 5(2) (2002). 35 b.l. mccombs & d. vakili, a learner-centered framework for e-learning, teachers college record, 107(8) 1582-1600 (2005). 36 d. oblinger, & j. oblinger, is it age or it: first steps toward understanding the net generation, in educating the net generation, 2.1-2.20 (2005), http://www.educause.edu/content. asp?page_id=5989&bchp=1 ; k. manuel, teaching information literacy to generation y, journal of library administration. 36(1-2) 195-217 (2002); j.l. frand, the information age mindset: changes in students and implications for higher education, educause review, 35(5) 15-24 (2000). 37 b. alexander, going nomadic: mobile learning in higher education, educause review, 39(5) 29-35 (2004). journal of clinical legal education december 2006 142 as today’s students prefer “active learning” or learning experiences which actively engage them within the learning process and encourage them to construct their own learning by “doing” rather than simply being told, the interactive discovery approach to learning which will be implemented in the virtual model will, it is anticipated, decrease boredom, whilst increasing student participation and retention of skills and knowledge.38 studies have shown that students retain five percent of materials presented in lectures, ten percent of what they read, 20–30 percent of what they see, and 75 percent of what they do. however, as it has been recognised that a balance needs to be maintained between didactic and discovery (process over content), approaches,39 the model developed will also enable opportunities for academic and workplace instructors to moderate and guide the learning process in more traditional ways. structure generation y students value structure and feedback40 and expect learning to be “high touch” as well as “high tech”.41 although they are accustomed to multitasking and quickly switching from one activity to another with minimal adjustment time, generation y students have a short attention span and a preference for processing information in “bite sized chunks” or a concise easy to use format.42 they therefore prefer a step by step approach to learning, which assists to make information more manageable and readily processed.43 the virtual model developed will enable students to work through authentic tasks in a structured way in a supportive learning environment which appropriately scaffolds or structures the learning and teaching process. as suggested by frand,44 “the instructor needs to play a more socratic role, posing questions and guiding the learning process, rather than taking an ecclesiastical approach, providing “the word” on a subject that the student is to “learn” (memorize) and repeat back.” therefore, although tasks may be carried out online, feedback, and monitoring by instructors, still fulfils an important motivational role.45 it is anticipated that this support and structure will feature in the virtual work placement model, by an appropriate mix of synchronous and asynchronous online communication such as video, skype,46 online discussion and email, and some opportunities for face to face communication. the challenge of providing work-integrated learning for law students – the qut experience 143 38 m. garry, training for the nintendo generation, progressive grocer 87 75(4) (1996); d. oblinger, & j. oblinger, is it age or it: first steps toward understanding the net generation, in educating the net generation. 2.1-2.20 (d.g. oblinger & j.l. oblinger eds. 2005) http://www.educause.edu/content.asp?page_id=5989&bc hp=1 39 j.l. frand, the information age mindset: changes in students and implications for higher education, educause review, 18 35(5) (2000). 40 k. phalen, self-assured, stressed, and straight: millennial students and how they got that way, (2002), http://www.itc.virginia.edu/virginia.edu/fall02/student/hom e.html; c. raines, managing millennials, (2002), http://www.generationsatwork.com /articles/millenials.htm. 41 m. garry, training for the nintendo generation, progressive grocer 87 75(4) (1996). 42 m. prensky, digital natives, digital immigrants, part ii, (2001). http://www.marcprensky.com/writing/default.asp ; p. mellow, the media generation: maximise learning by getting mobile, (2005), http://www.ascilite.org.au/ conferences/brisbane05/blogs/proceedings/53 _mellow.pdf . 43 m. le brun, & r. johnstone, the quiet revolution, sydney: law book company (1994). 44 j.l. frand, the information age mindset: changes in students and implications for higher education, educause review, 35(5) 15-24 (2000). 45 b. costello, r. lenholt, & j. stryker, using blackboard in library instruction: addressing the learning styles of generations x and y, the journal of academic librarianship, 30(6) 452-460 (2004); d. oblinger & j. oblinger, is it age or it: first steps toward understanding the net generation, in educating the net generation, 2.1-2.20 (d.g. oblinger & j.l. oblinger eds. 2005), http://www.educause.edu/content.asp?page_id=5989&bc hp=1 . 46 an online communications system that provides free voice and video conferencing, and synchronous chat or discussion forum functions to other skype users. see http://www.skype.com/download/. teamwork friendship and social relationships assume particular importance for generation y. indeed, their level of socialisation is such that they are almost constantly connected, either in person or online, for example by computers (email, blogs,47 and synchronous or asynchronous discussion forums), pdas48 or mobile phones.49 they seek a sense of community – to be included – and are more likely to make decisions based on the collective experience of their peers, rather than their teachers.50 as a result, in addition to web-based resources, today’s students also desire social interaction and connection, either in person, via mobile technology or online51 and gravitate towards activities that promote peer or social interaction and collaborative learning, such as gaming activities.52 the benefits of such learning and teaching approaches have been widely recognised.53 collaborative activities are appropriate to the generation y psyche as they have been found to improve student relationships, social skills and psychological development. in addition, such approaches also increase academic learning and retention; cognitive development; and active engagement, through discussion in which conflicting perceptions of the issue under consideration arise that, due to attempts to reconcile them, are then critiqued, resolved and reformulated by exposing and modifying inadequate reasoning and constructing new knowledge.54 furthermore, given that ‘the half-life of information is [now] measured in months and years’55 the teamwork, communication and leadership skills developed through collaborative 47 a user-generated web site that combines text, images and links to other sites to provide commentary on a topic. ‘the ability for [users] to leave comments in an interactive format is an important part of many blogs’: blog, (2007), wikipedia, http://en.wikipedia.org/wiki/blog . 48 meaning a “personal digital assistant” or handheld device combining features such as: computing, telephone, facsimile and internet and networking access. 49 m. mccrindle, understanding generation y, principal matters, 28-31 (2003); j.l. frand, the information age mindset: changes in students and implications for higher education. educause review, 35(5) 15-24 (2000); d. oblinger, & j. oblinger, is it age or it: first steps toward understanding the net generation, in educating the net generation. 2.1-2.20 (d.g. oblinger & j.l. oblinger eds., 2005). 50 a.taylor, do we know who we are teaching? teacher education undergraduates’ views of the world’ (paper presented at the new zealand/australian association for research in education conference – educational research, risks and dilemmas, auckland, 29 november 2003); m. mccrindle, understanding generation y, principal matters, 28-31 (2003); k. manuel, teaching information literacy to generation y, journal of library administration, 36(1-2) 195-217 (2002). 51 d. oblinger, & j. oblinger, is it age or it: first steps toward understanding the net generation, in educating the net generation, 2.1-2.20 (d.g. oblinger & j.l. oblinger eds. 2005), http://www.educause.edu/content.asp?page_id=5989&bc hp=1 . 52 p. shield, b. atweh, & p. singh, utilising synchronous web-mediated communications as a booster to sense of community in a hybrid on-campus/off-campus teaching and learning environment, (2005) http://www.ascilite.org.au/conferences/brisbane05/blogs/pro ceedings/70_shield.pdf; k. squire, & h. jenkins, harnessing the power of games in education, (2003), http://www.iaete.org/insight/articles.cfm?&id=26 . 53 d. johnson, & r. johnson, learning groups in the handbook of group research and practice, 441-461 thousand oaks: sage publications, (s. wheelan ed. 2005); d.w. johnson, & r.t. johnson, making cooperative learning work, theory into practice, 38(2) 67-73 (1999); d.w. johnson, & r.t. johnson, what makes cooperative learning work, in jalt applied materials: cooperative learning. 26-36, tokyo: japan association for language teaching, (d. kluge, s. mcguire, d. johnson & r. johnson eds. 1999); m. le brun, & r. johnstone, the quiet revolution, sydney: law book company (1994); e. wenger, communities of practice: learning, meaning and identity, cambridge, uk: cambridge university press (1998); e. wenger, communities of practice: learning as a social system, (1998), http://www.ewenger.com/pub/index.htm . 54 d. johnson, & r. johnson, learning groups, in the handbook of group research and practice, 441-461 thousand oaks: sage publications (s. wheelan ed. 2005). 55 j.l. frand, the information age mindset: changes in students and implications for higher education, educause review, 35(5) 15-24 (2000). journal of clinical legal education december 2006 144 learning, even when conducted online, are especially important in the context of learning for workplace transition, as opposed to mere knowledge accumulation, thus providing an authentic learning experience which develops marketable life long skills.56 an important feature of the virtual placement model is that it will provide students with another opportunity to develop these important skills. the virtual placement project the concept the virtual placement project is being designed in accordance with the flinders university workplace– learning management manual57 but accepting martin’s proposition that ‘there is no single model of successful practice’58 and work based university education programs have to be designed to meet the resources and needs of participants. the target skills for the project are derived from the teaching for learning practicum of the flinders program and include: 1.self awareness:– knowledge of personal values, strengths and limitations in the workplace context; 2.motivation:– knowledge about the employer, ability to prepare a cv and ability to effectively communicate with their supervisor;58 3.intentionality:– the ability for students to establish what they are interested in learning and to consider how the experience will inform their job and future career; 4.adaptability:– flexibility and the ability to deal with uncertainty; and 5.capacity to work with others:– awareness of status and roles, the ability to self-manage and respect for others’ perceptions. the aim of the project is to provide an authentic and sustainable virtual workplace experience for undergraduate law students at qut. the virtual placement project is intended for offer to full-time, part-time and external qut students as an elective subject in the bachelor of laws program. it is yet to be determined which pre-requisites will apply but it is anticipated that students will participate in the program in their final year of study. the virtual workplace will operate from the blackboard learning management system supplemented by the qut eportfolio program.60 it is also anticipated that once students are allocated to a placement, they the challenge of providing work-integrated learning for law students – the qut experience 145 56 d. hanna, building a leadership vision: eleven strategic challenges for higher education 38(4), educause review 25 (2003). 57 l. cooper, j. orrell, & m. bowden, workplace-learning management manual, a guide for establishing and managing university work-integrated learning courses, practica, field education and clinical education, south australia: flinders press (2003). 58 e. martin, the effectiveness of different models of work-based university education, department of employment, education, training and youth affairs, j.s mcmillan printing group (1997). 59 this task is included to enhance students’ readiness for the transition to professional practice. 60 the qut student portfolio and resumé builder services are available to all students through the qut virtual network. student portfolio is an online tool that students can use to document and present their academic, professional and personal development in the format of an e-portfolio (electronic portfolio). the e-portfolio enables students to facilitate the electronic development and management of a digital career ‘folio’ of evidence. will be given a level of access to the technological infrastructure used by their virtual employers. it is hoped that the technological platform will provide an appropriate mix of synchronous (real time) and asynchronous online communication such as video, skype,61 discussion forum, online chat, wikis62 and email as well as some opportunities for face to face communication. the aspirations as this project is still in the developmental phase our learning design goals are aspirational. from our research to date we envisage a program with the following main features. students will apply for their work placement position by answering an advertisement in the virtual workplace newspaper. it is anticipated that the range of available placement opportunities will give students the opportunity to choose an experience in their preferred field. specific criteria will apply and students will need to prepare a resumé outlining their experiences and demonstrated strengths and interests. student resumés will need to be prepared using the qut student portfolio and resumé builder services which are available to all students through the qut virtual network. student portfolio is an online tool that students can use to document and present their academic, professional and personal development in the format of an e-portfolio (electronic portfolio). the format of the service encourages students to identify their strengths and areas for improvement, also providing resources designed to help them to undertake an audit of how their skills development is progressing, and to plan for future skills development. the resumé builder is provided by qut to enable students to prepare themselves to address employment opportunities as they arise. this service enables students to: 1. record the details they may wish to include in their resumé; 2. create a resumé using a selection of those recorded details; and 3. export that resumé electronically as a file which can be opened for further editing or viewing in another application. in preparing their applications students will be referred to the websites of their employers to explore the public profile and market niche of the organisation. in response to their applications, students will receive virtual letters of acceptance which will allocate them to workteams and employers on the basis of their expressed preferences. it is anticipated that the range of employers will extend across the spectrum of law firms, government, industry and community organisations, reflecting the wide variety of employment opportunities which are open to today’s law graduates. it is envisaged that at this point students will also be invited to participate in their employer’s virtual workplace, being granted a level of access to the organisation’s intranet, online research tools, group emails and continuing education and professional development services.63 throughout this period students will also be encouraged to develop team familiarity through an assessed interactive online exercise conducted by the 61 the skype communications system is notable for its broad range of features, including free voice and video conferencing, its ability to use peer to peer (decentralized) technology to overcome common firewall. 62 a wiki is a website that allows visitors to easily add, remove, and edit available content, typically without the need for registration. this ease of interaction and operation makes a wiki an effective tool for mass collaborative authoring. 63 it is acknowledged that this raises issues such as confidentiality and site security which may need to be addressed on a case by case basis in accordance with both university and employer organisational policies. journal of clinical legal education december 2006 146 university on the learning management system (lms) platform.64 after teams have been allocated to employers, tasks will be set by workplace mentors in each employer organisation. students will be asked to collaborate to prepare a plan of action to scope their approach to completing the task including an allocation of workloads and a timeline for completion. this plan of action will also require students to identify aspects of the task which may require expert advice from other sources or resources not ordinarily available. following submission of the group’s plan of action, workplace mentors will provide feedback to the group highlighting practical considerations that may have been overlooked as well as the ethical, political and social dimensions of the task that may not have been readily apparent to the students in their initial proposal. the major assessment item will then involve completion of the assigned task in groups. it is envisaged that given the range of employers, the nature of these tasks may include diverse activities such as research into legal problems, the preparation of client briefings on updates to the law in specific areas, memoranda of advice in relation to legal issues and submissions on issues of law reform or public policy. it is anticipated that the scope of the task may need to be modified along the way to reflect client’s needs and the impact of other “real world” factors. the timing of submission of the task will therefore be negotiable between the students and the workplace mentor. the workplace mentors will assess the project and give detailed feedback to the group on the strengths, weaknesses and practical utility of the work produced. wherever possible it is proposed that students will receive a “red pen” or corrected version of the task which they will be asked to revise in accordance with their mentor’s input. it is also hoped that wherever possible students will ultimately see their work implemented in the “real world” context and receive feedback from their mentor regarding their client’s satisfaction with the work produced and where relevant, the outcome of the matter. the final stage of the project will involve students being asked to revisit their original resumés through the eportfolio service to record and reflect upon their workplace experience and how they feel it has contributed to their preparation for transition to professional practice.65 conclusion work-integrated learning experiences are intended to supplement the traditional didactic approaches to teaching experienced by students elsewhere in their studies of “black letter” law. the creation of an effective work-integrated learning experience which is intended to operate in the digital environment and not in the physical workplace requires significant adaptation of the traditional learning theories which have underpinned educational literature in this field to date. however, the current policy imperatives of the higher education sector in australia, the practical challenges encountered in attempting to implement the traditional models in modern universities and the rapidly changing nature of today’s students’ learning preferences suggest that it is a worthwhile goal. the virtual placement project currently under design in the faculty of law at the queensland university of technology is a working example of an attempt to reconcile these various factors in the design of an authentic and rewarding learning experience for law students preparing for the “real world” of professional practice. the challenge of providing work-integrated learning for law students – the qut experience 147 64 a learning management system (or lms) is a software package that enables the management and delivery of online content to learners. most lmss are web-based to facilitate “anytime, any place, any pace” access to learning content and administration. the assessed interactive activity is likely to be an online quiz competition. 65 the task of reflection is intended to consolidate in the students’ minds the value of the learning experience so that they can supplement their cvs for future use as a result of the placement experience. it is not yet determined whether the assessment will be decided on a graded or competency basis. reviewed article 68 the policy clinic at northumbria university: influencing policy/law reform as an effective educational tool for students rachel dunn, lyndsey bengtsson and siobhan mcconnell, northumbria university, uk1 introduction the student law office (slo) at northumbria university has recently incorporated a policy clinic (pc) into its existing, and well established, clinical legal education (cle) programme. there are two models of pc within the slo; the first is a hybrid model whereby the students carry out pc work alongside live client work and the second is a stand-alone model whereby the students solely undertake pc work. in the pc, students conduct empirical legal research for external organisations and other members of academic staff, with the ultimate aim of influencing policy and/or law reform. this innovative pc model was introduced in the last academic year (20182019) in order to broaden the reach of the cle programme, appealing to those students who want to focus on law reform and/or who are unsure about whether they wish to enter the legal profession. this teaching method aims to deepen a student’s understanding of the law as they learn not just about the legal framework but also how 1 rachel dunn, lyndsey bengtsson and siobhan mcconnell are senior lecturers in the school of law at northumbria university reviewed article 69 laws are actually made and influenced2. students may also be more interested and engaged in the work as they see it ‘may have a positive impact in generating change’3 and thus develop a social justice ethos. furthermore, whilst they develop professional skills and identities in the standard live client model, this is similar in the pc, but perhaps in a different way and from a different perspective. this will be explored throughout the article. although pcs are not a new concept in cle,4 there has been little research conducted as to the pedagogical benefits of carrying out pc work alongside live client work.5 a pilot study was undertaken in the last academic year (2018-2019) in order to explore what pedagogical benefits the pc brings. this article therefore will firstly explain the key features of the hybrid model of pc in the slo. the second part of the article will set out the methodology that was adopted for the pilot study. the third part of the article will set out the results of the pilot study and discuss the themes that have 2 curran, l. (2007) ‘university law clinics and their value in undertaking client-centred law reform to provide a voice for clients’ experiences’ international journal of clinical legal education volume 12, pp.105130. 3 ibid pp.107-108. 4 there are examples of policy and law reform clinics around the world, see for example at australian national university (anu), stanford law school’s law and policy lab and whittier law school. see patton, w.w. (2011) 'getting back to the sandbox: designing a legal policy clinic' 16 international journal of clinical legal education, p.116; coper, m. (2007-2008) 'law reform and legal education: uniting separate worlds' 39 university of toledo law review, p.233. 5 although there is a significant amount of research on clinical legal education generally; see cantatore, f. (2018) ‘the impact of pro bono law clinics on employability and work readiness in law students’ international journal of clinical legal education volume 25, pp.147-172; dignan, f. (2011) ‘bridging the academic/vocational divide: the creation of a law clinic in an academic law school’ international journal of clinical legal education volume 16, pp. 75-84; hymans, r. (2008) ‘on teaching students to “act like a lawyer”: what sort of lawyer?’ international journal of clinical legal education volume 13, pp21-32. reviewed article 70 emerged. the final part of the article will discuss the limitations of the study and make recommendations for future research. the pc clinic at northumbria university – the hybrid model students undertaking work in a pc is not a new concept. indeed, the use of such clinics is expanding throughout university law schools as the pedagogical and community value becomes more and more recognised.6 just like there are different models of cle7, there are different models of pcs. for example, the model can be freestanding student society or module,8 or integrated into an already established law clinic.9 however, the authors are unaware of any other university clinic that allows the students to conduct empirical legal research for external organisations as their client. 6 dunn, r. and glancey, r. (2019) ‘using legal policy and law reform as assessment.’, pp.139-163, in bone, a. and maharg. p. (eds) critical perspectives on the scholarship of assessment and learning in law. anu press; curran, l. (2007) ‘university law clinics and their value in undertaking client-centred law reform to provide a voice for clients’ experiences’ international journal of clinical legal education volume 12, pp.105-130. 7 for example, see speed, a. and bengtsson, l. (2018) 'a case study approach: legal outreach clinics at northumbria university’ international journal of clinical legal education volume 26 no 1, pp.179-215; batt, c. (2015) ‘a practice continuum: integrating experiential education into the curriculum’ (2015) elon law review volume 7, p.119; kerrigan, k. and murray, v. (2011) a student guide to clinical legal education and pro bono, palgrave macmillan; bucker, a. and woodruff, w. (2008) ‘the bologna process and german legal education: developing professional competence through clinical experiences’ german law journal volume 9, pp.575-617. 8 dunn, r. and glancey, r. (2019) ‘using legal policy and law reform as assessment.’, pp.139-163, in bone, a. and maharg. p. (eds) critical perspectives on the scholarship of assessment and learning in law. anu press 9 for example, please see curran, l. (2004) ‘innovations in an australian clinical legal education program: students making a difference in generating positive change’ international journal of clinical legal education, volume 6, pp.162-176. reviewed article 71 the pc within the slo at northumbria university is incorporated into a wellestablished live client clinic that has been providing pro-bono legal advice to members of the public for over 20 years. in the slo the students undertake legal work in ‘firms’ of up to eight, under the supervision of a solicitor, barrister or caseworker. there are 20 members of staff who supervise around 200 students each academic year.10 the slo operates a full representation model, meaning that students provide initial legal advice and may also advise and represent clients during any court or tribunal process where appropriate. as stated above, in the pc the students are involved in empirical research for external organisation clients and members of academic staff with the ultimate aim of influencing policy or law reform. just like the live client work, students work in firms of up to eight however, they can be supervised by any member of staff, regardless of whether they are a practising solicitor or not, with an interest in the particular research area. the supervisor identifies what research projects the students will work on and approaches contacts in the community, academic colleagues and/or external organisations to offer the services of the pc. the suitability of a research project involves a consideration of whether it involves sufficient work for the students, together with a consideration as to whether the data collection and (ideally) the completion of the research coincides with the academic year. the pc utilises the slo 10 information about the student law office can be accessed at: https://www.northumbria.ac.uk/aboutus/academicdepartments/northumbria-law-school/study/student-law-office/ (accessed 25th september 2019). https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/ https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/ https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/ https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/ https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/ https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/ https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/ https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/ https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/ https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/ https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/ https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/ https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/ https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/ https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/ https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/ https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/ reviewed article 72 procedures and systems, for example, the internal electronic network and storage facility. furthermore, any participants are anonymised and steps are taken to ensure confidentiality throughout. some students within the slo conduct pc work alongside their live client work and other students work solely within the pc. the former model therefore provides a combined teaching model, engaging the students in both empirical legal research and advising clients in the clinic (a hybrid of the two). the live client work and the pc are in no way linked, meaning the students can provide advice to a client on an area of, for example, employment law, but undertake pc work in another area such as criminal law. however, this is not to suggest that in the future the pc cannot undertake empirical legal research in an area of concern raised by a client case, which has happened at other institutions.11 the slo operates as a compulsory year long module that is worth 60 credit points, which represents the expected time commitment and workload within the module. although it is worth a high percentage of a student's overall mark, the authors were nevertheless conscious of the workload in undertaking pc work alongside live client work. it was therefore felt by the authors that those students who undertake this 11 for example carolin, j. (2014) ‘when law reform is not enough: a case study on social change and the role that lawyers and legal clinics ought to play’ journal of law and social policy volume 23, pp.107-135; curran, l. (2004) ‘innovations in an australian clinical legal education program: students making a difference in generating positive change’ international journal of clinical legal education, volume 6, pp.162-176. reviewed article 73 hybrid model should be allocated one client case (as opposed to the usual two cases) over the course of the academic year. in the hybrid pc students volunteer to work both in the live client clinic and the pc. they undertake a wide range of activities on behalf of their clients. the type of work the students undertake in the pc involves some, or all of, the following: • undertaking a literature review of the relevant area of law in order to explore the background and to appreciate the importance of the research. • designing the methodology for the research. the students gain an understanding of what research methods are available, the benefits and drawbacks of each method and establish what method is most appropriate for their research question. • drafting the ethical approval form in order to gain an understanding of the ethical issues involved in empirical research. • undertaking the research (for example assisting in the data collection). • analysing the data collected. the students gain the experience of working with raw data and deciding on how to code that data in order to report on their findings. • presenting their research by way of a powerpoint presentation to fellow students and staff at the end of the academic year. • writing up their research findings in an evaluation report for their client which includes their recommendations for law and/or policy reform. reviewed article 74 at the end of the module, the students are assessed by way of a portfolio and reflection. the portfolio contains all drafts of both their pc work and live client work undertaken throughout the year. the same assessment criteria are applied for both the pc work and live client work. the reflective element is assessed by way of a 10minute reflective presentation on their experience. reflection is a key component of the clinical programme in the slo as the clinical supervisors aim to develop reflective practitioners and lifelong learners.12 considerations underpinning the hybrid pc the incorporation of the hybrid pc into the slo was underpinned by the following pedagogical, institutional and wider public considerations: 1. firstly, enlarging the benefits of the slo, by enabling the students to develop their professional skills in a different context and from a different perspective. whilst the students develop a similar skill set in the pc to that of live client work, the authors considered that their experience of undertaking both would enhance their skills and foster a deeper reflection as they could compare and contrast the two experiences. it has already been demonstrated that live client clinics can develop both hard and soft skills with students,13 such as analysis, 12 thomson, c., bengtsson, l. and mkwebu, t. (2019) ‘the hall of mirrors: a teaching team talking about talking about reflection’ the law teacher volume 53 number 4, pp.513-523; milstein, e. (2001) ‘clinical legal education in the united states: in-house clinics, externships, and simulations’ journal of legal education volume 51, pp.375-380. 13 dunn, r. (2017). the knowledge, skills and attributes considered necessary to start day one training competently and whether live client clinics develop them. doctoral thesis, northumbria university. reviewed article 75 written skills, empathy, teamwork and organisation. the authors assert that the pc work can also do this, and, develop some skills differently than that of live client work some of which are only developed during pc work. for example, whilst the students develop their interviewing skills in preparing and conducting their live client advice interview, the skills utilised in the pc can bring a very different learning experience. the students may be faced with preparing for (or conducting) a focus group with a number of professionals, who may have equal knowledge about the law or the system which the students are exploring. thus, the students must have a comprehensive knowledge of the subject matter prior to interviews taking place, including the design of them, before collecting any empirical data. 2. secondly, the pc may provide additional career opportunities as there is more diversity of work available in the clinic. one of the key benefits of cle is that students gain the experience and an appreciation of what it is really like to be a legal practitioner, and this helps them to decide whether this is the career that they want.14 by giving the students more choices within cle opens up a realm of other career paths. as curran highlights, this exposure means that students 'have more choices about the areas of law they may want to practice in and if they decide 14 childs, p. firth, n. and rijke, h.d. (2014) ‘the gap between law student career aspirations and employment opportunities’ the law teacher volume 48 issue 1, pp.51-68; marson, j. wilson, a. and van hoorebeek, m. (2005) ‘the necessity of clinical legal education in university law schools: a uk perspective’ international journal of clinical legal education volume 7, pp. 29-43. reviewed article 76 not to practice they realise there is a whole realm of activities that a law degree will give them opportunities in.'15 as the employment market becomes more competitive (particularly in the legal sector), it becomes all the more important that students gain experience and professional skills in a way that may makes them stand out and gives them that competitive edge.16 involvement in a pc can help students “stand out” from other graduates and enhance their employability. ensuring that students are employable is a key part of the role of any university. employers expect “work-ready” graduates; students expect to have the knowledge and skills necessary to enter the graduate marketplace. saunders & zuzel recognised that one of the main reasons students invest in a university education is to enhance their employment prospects.17 with the expansion of the higher education sector and 1movements in the graduate recruitment market, employability is ‘a critical issue for both government and higher education institutions’.18 equipping our students with the right employability skills is now more of an issue than ever given the teaching excellence and student outcomes framework (tef) and its emphasis on post-graduate employment19. 15 curren, l. (2004) ‘innovations in an australian clinical legal education program: students making a difference in generating positive change’ international journal of clinical legal education volume 6, p.174. 16 alexander, j. and boothby, c. (2019) ‘stakeholder perceptions of clinical legal education within an employability context’ international journal of clinical legal education volume 25 issue 3, pp.53-84. 17 saunders, v. and zuzel, k. (2010) ‘evaluating employability skills: employer and student perceptions’, bioscience education volume 15 issue 1, pp.1-15. 18 ibid, p.1 19 one of the six main metrics used to rate universities for the tef is the proportion of graduates in employment or further study six months after graduation reviewed article 77 3. thirdly, a pc can give the students a transformative experience. a social justice ethos can be instilled in the students by increasing their understanding of the important role that lawyers can play in not just applying the law but also shaping the law. as maccrimmon and santow highlight 'while it is crucial for students to learn how to identify and apply legal rules, this should not be the sum total of their skills set.'20 the students gain first-hand experience on the laws affecting society and the crucial role a lawyer can play in recommending and influencing law reform for the greater public good. the importance of instilling this social justice ethos in our students is that, as future lawyers they may not just apply the law in a vacuum but go one step further and challenge any issues in order to influence change. indeed, as coper highlights 'legal education with an ethos of law reform and social justice would give a more altruistic focus to the pursuit of law as a career, and inspire more graduates to use their knowledge and skills to give something back to the society they serve.'21 we don’t wish to only teach our students what the law is, but how they can influence change and reform during their practice. 20 mccrimmon, l. and santow, e. (2010) ‘justice education, law reform and the clinical method’ in bloch, f.s. (2010) the global clinical movement: educating lawyers for social justice, oxford university press. 21 coper, m. (2007-2008) 'law reform and legal education: uniting separate worlds' university of toledo law review volume 39, p.247. reviewed article 78 4. finally, clinical supervisors in a pc do not need to be legally qualified or hold a practising certificate. therefore, any member of academic staff who is able to supervise on research methods can be brought into the clinic environment to supervise. this also has the benefit of linking research activity with research rich learning which is becoming all the more important with ref (research excellence framework) requirements and other research demands across universities globally.22 another added benefit is that it may bridge any divide between doctrinal and clinical work in a law school, as research suggests that there is a 'conflict between theory and practice.'23 integrating academic staff into the clinic will increase their understanding of the demands of clinical work and enable academic and clinical staff to come together in a way which is not previously reported. further, it can help to encourage research, collaborating with clinical members of staff who do not traditionally engage with research. further to the reasons set out above, the appreciation and need for this kind of education is highlighted in various legal education reports. it was stated in the 22 for example, see martin-sardesai a. tooley, s. and guthrie, j. (2017) ‘accounting for research: academic responses to research performance demands in an australian university’ australian accounting review volume 27 issue 3, p.329; leathwood, c. and read, b. (2013) ‘research policy and academic performativity: compliance, contestation and complicity’ studies in higher education volume 38 issue 8, p.1162; thornton, m. (2009) ‘academic un-freedom in the new knowledge economy’ in brew, a. (ed) (2009) academic research and researchers, mcgraw-hill education. 23 bloch, f. (2004) ‘the case for clinical scholarship’ international journal of clinical legal education volume 4, pp.7-21; mckeown, p. and dunn, r. (2015) ‘the european network of clinical legal education: the spring workshop’ international journal of clinical legal education volume 22 issue 3, p.312. reviewed article 79 ormrod report (1971) that it is necessary to ‘cultivate a critical approach to existing law, an appreciation of its social consequences, and an interest in, and positive attitude to, appropriate development and change.’24 the aclec report (1996) emphasised the need for “legal education as an all-round preparation for a wide range of occupational destinations.”25 at the time this report was published, cle was becoming more popular in the uk and some clinics were in operation.26 there were not, however, any known pcs. it was hoped that traditional education was sufficient at introducing students to law reform and policy issues, but the authors cannot be certain of this. we argue that the pc at northumbria, both the full or hybrid models, do just this, and prepare students for multiple occupational destinations, within the legal sphere and outside of it. aclec also acknowledged that legal education should develop ‘intellectual integrity and independence of mind: to be able to formulate and evaluate alternative possibilities, and to give comprehensible reasons for what one is doing or saying.’27 this is something which is usually provided through legal education, when discussing and debating with students in the classroom the issues with various legal areas and how they could be improved. the pc takes this one step further, however, by enabling students to collect and analyse data to help form their opinions and put forward 24 report of the committee on legal education, cmnd. no. 4595 (1971), para 100 25 lord chancellor’s advisory committee on legal education and conduct, first report on legal education and training, (1996) hereinafter the aclec report paragraph 2.2 26 grimes, r (1995) ‘research reports on legal education, number two: legal skills and clinical legal education,’ web journal of current legal issues volume 3. 27 ibid, paragraph 2.4 reviewed article 80 alternative possibilities. these possibilities are not hypothetical, but, provided by the lived experience of the participants and what is realistic for all those operating in a particular system. the more current legal education reports, such as the legal education and training review (letr), do not give special emphasis to law reform work as in ormrod or aclec, nor do they mention law reform as an area to develop with students. the skills that letr advocates for in its professional competencies dimension and attribute table28 are seen in the work of the pc, however. for example, applying knowledge to real world situations is one of the main functions of the pc, but it is furthered by acquiring more knowledge as to how systems and policies can be improved for the betterment of the real world. additionally, students are required to manage their uncertainty, particularly during the data collection stage where participants can rearrange, be difficult, or bring up areas of discussion not previously identified by the research team. these are just two examples, but this kind of work feeds into affective/moral dimension of social responsibility, which the authors believe includes the ability to use empirical data and advocate for law reform, both in the court room and through other channels. lady hale has recently described the importance of her work undertaken in the law commission, prior to her becoming a judge, as ‘excellent preparation for serving on the 28 webb, j. et al (2013) setting standards: the future of legal services education and training regulation in england and wales (the legal education and training review [letr]), p.140. accessed at http://letr.org.uk/the-report/index.html (accessed 21.10.19). http://letr.org.uk/the-report/index.html reviewed article 81 supreme court of the united kingdom.’29 lady hale provides four main lessons which make the kind of work undertaken at the law commission (and, the authors argue, in the pc) a good idea, including an appreciation of doctrinal and empirical research in understanding the law, how it works and the policy implications of changing it.30 there need not be such a divide between doctrinal or empirical research and how the law is developed through the common law, and academic work can often influence decisions made in court. the pc allows for students to work with and foster an understanding of reliable empirical research which can influence the development of the law. there are a few ways to do this, but, collecting data or working on law reform projects is most definitely one of them. lastly, the qaa benchmark for law defines what can be expected of a law graduate by the end of their studies.31 like aclec, the benchmark states that a law degree will prepare students for a range of careers in, ‘for example, business, finance, education, public policy, public service, social services in the uk and internationally.’32 the pc helps students to develop the skills needed for public policy and public service particularly, and provides them with the experience needed for applications. further, a variety of skills 29 lady hale, president of the supreme court of the united kingdom, (11th june 2019) impact in the courts. impact and law reform conference 2019 (institute of advanced legal studies, london), p.1 30 ibid 31 the quality assurance agency for higher education, uk quality code for higher education, part a: setting and maintaining academic standards – subject benchmark statement: law, july 2015, p.1. accessed at: http://www.qaa.ac.uk/en/publications/documents/sbs-law-15.pdf (accessed 22nd october 2019) 32 ibid, p.6 http://www.qaa.ac.uk/en/publications/documents/sbs-law-15.pdf reviewed article 82 and qualities of mind, which are expected of a law graduate (with honours) are provided, of which many are potentially developed through pc. for example, that a law student will have demonstrated an ‘ability to ask and answer cogent questions about law and legal systems… engage in critical analysis and evaluation’ and ‘ability to produce a synthesis of relevant doctrinal and policy issues, presentation of a reasoned choice between alternative solutions and critical judgement of the merit of particular arguments.’33 these are just two examples of how the pc meets the requirements under the benchmark, but also extends this experience in a way, which may not be possible when studying doctrinal law or working with a live client. for example, students will be able to use empirical data, analyse it and use it to form well-reasoned arguments and sensible alternative solutions. whilst students may be encouraged to read reports which have been empirically produced during their legal education, they will most likely not have worked with actual data themselves, understanding the process of research and what makes a study robust and reliable. thus, our pc students should not only meet the benchmark requirements but exceed them. it has been set out above why the pc is important, in terms of individual skills development, but also as a necessary social justice ethos and additional training for striving for change when in practice. what the authors have provided, however, is anecdotal evidence from our experience. the next part of this article will discuss the evidence we have collected and analysed as to the pedagogical benefits of the pc. 33 ibid, p.7 reviewed article 83 methodology in this pilot study, one focus group was used to examine the views of students who had undertaken work in the pc in the slo. a sample was selected of 19 students who had worked across three different research projects and under three different clinical supervisors. three students participated in one focus group which lasted approximately one hour. the authors appreciate a small sample size cannot be generalised and is not representative of other pcs in the world. as an explanation, the focus group was conducted after the course had finished, and some students were not able to attend. the date of the focus group has been modified for future research to engage more participants. further, the authors do not know of other pcs operating in the uk in this way, to gather more data to compare and add to this work. the authors would like to encourage others working in this field to contact us and collaborate on future research projects. as a small sample size may be considered a problem and affects the quality of the study for some,34 in some studies this cannot be helped. with cle an emerging field in terms of reliable empirical data, small studies are inevitable, until law schools join forces to provide evidence which can be generalised. what we can argue is generalisation through contextual similarity, as explored by larsson, also 34 marshall, b. et al (2013) ‘does sample size matter in qualitative research?: a review of the qualitative interviews in is research’ journal of computer information systems volume 54 issue 1, p. 11 reviewed article 84 known as transferability.35 it is argued that any other hybrid pcs operating in a similar way, as described above, can transfer these results to their own work. the authors were cognisant of their status as clinical supervisors and in using students as participants, they may feel obliged to participate in the study. to eliminate this risk, the students were asked by the moderator to sign an informed consent form at the beginning of the focus group. this consent form assured anonymity and confidentiality, so, their supervisor would not know who had participated in the study. the consent form reminded them that their participation in the study was voluntary and they could withdraw at any time. they were also asked to read an information about research document, which made clear that their participation would not affect any aspect of their programme of study and was in no way linked to their grade within the slo. the focus group was audio recorded and subsequently transcribed. a framework of questions was used as the main tool for data collection; however, the moderator could ask questions beyond it. the authors developed the framework of questions by reading literature on policy/law reform clinics and on their potential benefits. the participants gave permission for the focus group to be recorded. the tape was transcribed by an independent third-party organisation and reviewed by the 35 larsson, s. (2009) ‘a pluralist view of generalization in qualitative research’ international journal or research and method in education volume 32 issue 1, p.13. reviewed article 85 moderator to ensure that the participants’ names were not mentioned before the transcript was received by the authors. thematic analysis was adopted for the data analysis. this method for analysis has been described as ‘an independent qualitative descriptive approach’36 and ‘is a method for identifying, analysing and reporting patterns (themes) with data.’37 it was considered that the results of the thematic analysis would be critical in revealing important aspects arising from the data concerning the pedagogical benefits. the authors independently conducted the thematic analysis and then met afterwards to agree the patterns that emerged in order to validate the codes, and organise the codes into themes. a limitation of this study is that it is a small-scale pilot focus group, however, the qualitative data it gives does open a window to the students’ views and the value of pc as an educational tool within a well-established legal clinic. as barbour38 and vogt et al39 highlight, the goal of focus group research is “transferability” (applicability, fittingness, meaning to others, decided to each reader for their own use) rather than statistical generalisability. we appreciate that this sample size was small, but the team 36 vaismoradi, m. turunen, h. and bondas, t. (2013) ‘content analysis and thematic analysis: implications for conducting a qualitative descriptive study’ nursing and health sciences volume 15 issue 3, pp. 398-400. 37 braun, v. and clarke, v. (2006) ‘using thematic analysis in psychology’ qualitative research in psychology volume 3 issue 3, p. 5 accessed at: <http://eprints.uwe.ac.uk/11735/2/thematic_analysis_revised...> (accessed 15th december 2015). 38 barbour, r.s. (2005) ‘making sense of focus groups’ medical journal volume 39 no 7, pp.742-50. 39 vogt, d. king, d.w. and king, l.a. (2004) ‘focus groups in psychological assessment: enhancing content validity by consulting members of the target population’ psychological assessment volume 16 no 3, pp.231-43. http://eprints.uwe.ac.uk/11735/2/thematic_analysis_revised reviewed article 86 wanted to explore the area and see if there were any themes emerging from the data which were worth pursuing. we plan for a larger, longitudinal study both qualitative (further focus groups) and quantitative (survey), and feel it is needed to provide an insight into the pc over a few years. it would also be of interest to obtain data on what employers’ views are on their prospective trainees undertaking pc work during their university degree. the next part of the article will report on the results of the pilot study, taking each theme in turn. not all codes will be discussed within each theme, but those which raised important and consistent concepts. results and discussion of the pilot study the thematic analysis resulted in six major themes: 1. skills/attributes 2. difference in terms of both the curriculum and the live client work. 3. employability 4. motivation 5. supervisor relationship 6. impact the themes and codes are displayed in the diagram: reviewed article 87 diagram 1: codes organised into themes (a) theme 1 “skills/attributes” there was a consensus amongst the students that the pc had allowed them to develop a broad range of skills and attributes. their experiences had led to the development of both hard and soft skills. written communication skills had been ‘really put to the test’ and developed, as had their research, teamwork, time management, analytical skills and confidence that they can adapt to new situations. reviewed article 88 the students felt very strongly that pc work had allowed them to develop their ability to work effectively as part of a team. initially the students reported that this was the skill they most struggled with, that the pc tested one ‘so much in terms of their ability to work with others.’ in the pc work there was larger group of students (six students in total) however in the client work they usually worked in pairs. by the end of the module teamwork was a skill that the students felt they had developed the most. interestingly, it appeared that a real research community emerged whereby the students really valued the ability to work with each other and ‘bounce ideas’ off one another. they supported one another and ultimately got into the ‘swing of it.’ therefore, what presented as a challenge to begin with (working with peers) ended up giving the students a valuable opportunity to develop their teamwork skills. working as a team in the pc led to the development of their time management, negotiation and leadership skills. the project developed their time management skills, ensuring the work was completed by each deadline. in achieving this, however, the students reported that they negotiated with the other students with regards to who did what and when. this became all the more necessary in light of the students’ different working styles, their other university workload and extra-curricular activities. for one student negotiation ‘was definitely key’ in the pc. there was recognition that some students stepped up to occupy more of a leadership role, taking control over the project and ensuring that the work was completed on time. rather than question those who took this leadership role, one student commented that he had reviewed article 89 ‘complete faith’ in those who had stepped up. this suggests that within the group of students, there were some who developed leadership qualities including instilling confidence in the group, commitment to a task, the ability to make a decision, the ability to communicate effectively and the ability to delegate tasks to maximise efficiency. a previous study by dunn into the skills developed during live client work highlights that leadership skills are only really developed when in practice and become more prominent as a lawyer progresses through their career.40 some students therefore have been given the opportunity to develop a skill in the pc that they may not have developed in live client work, providing further opportunities for our students to expand their employability skills. within the research community that developed, there was a general consensus that the students were eager to demonstrate to their supervisor that they were working autonomously. as one student said: we wanted to show that we really had a grip on it. obviously, we did communicate with her if we were really stuck or just needed some direction. but i think, yeah. we just wanted to really not rely on her. with another adding, yeah, i think as well, we know that it’s assessed… we know that is [autonomy] one of the marking criteria 40 dunn, r. (2017). the knowledge, skills and attributes considered necessary to start day one training competently and whether live client clinics develop them. doctoral thesis, northumbria university reviewed article 90 many of the skills discussed by the students, for example, written and oral communication, research, teamwork, efficiency and time management, are explicitly mentioned in the slo assessment criteria, in the slo handbook and in the module descriptor. however, it was interesting to note that certain skills which might be expected to be developed within a cle environment were absent from the focus group discussion. some of these are skills that students might not normally associate with cle for example, commercial awareness and numeracy. however, the omission of some other skills, such as an understanding of ethics and ethical procedures, critical engagement/analysis, attention to detail, statutory interpretation and problemsolving, was notable.41 not all of these skills (for example commercial awareness, numeracy and attention to detail) are explicitly mentioned in the assessment criteria or handbook but are skills that could and may be developed in a pc. it was surprising that ethics was not mentioned. firm meetings had been used to discuss research ethics, applications for ethics clearance and associated issues. the focus on research ethics contrasts with the “usual” ethical issues encountered in live client clinics and discussed in undergraduate law degrees. further, there was no discussion of if and how the broader concept of professionalism had been developed through the pc experience. dagilyte and coe consider professionalism ‘in the wider sense: as skills, 41 in relation to the statutory interpretation and problem solving being developed through policy work see kruse, k. (2001-2002) ‘biting off what they can chew: strategies for involving students in problem solving beyond individual client representation’ 8 clinical l. rev, p.405. reviewed article 91 personal attitudes and values that guide one’s behaviour when providing legal advice’42 and that professionalism is critical to being ready for employment, in the legal profession and in any other graduate role. further, one of the key recommendations of the letr was to ‘strengthen requirements for legal education and training in legal ethics, values and professionalism.’43 whilst it is clear that students considered themselves to be developing skills which form the building blocks for professionalism, it is of interest that there was no explicit acknowledgement by them of their development of professionalism within the pc. it appears that it would be of benefit to students for supervisors to be more explicit in their direction to students as to what skills are being developed i.e. skills specifically mentioned in the module descriptor/assessment criteria and any which fall outside of those documents. (b) theme 2 “difference in terms of both the curriculum and the live client work” another theme that emerged was the contrast students felt between the pc work and both the curriculum and the live client work. the students initially struggled to adapt to the pc work. it was alien to them, as one student put it ‘it’s almost like we’re not 42 dagilyte, e. and coe, p. (2014) ‘professionalism in higher education: important not only for lawyers’ the law teacher volume 48 issue 1, pp. 33-50 43 letr at ix reviewed article 92 entitled to an opinion normally, and then all of a sudden we’re allowed to interpret data.’ this is unsurprising considering the pc is unlike anything they have ever done before. the students study law throughout their degree and are taught how to apply the legal framework to various scenarios and then ‘all of a sudden the question is so broad and there isn't an answer you can just look up. you've got to look through data and find it.’ however, the students did adapt, and their perception was that it all came together by the end of the project. one student commented, ‘we…don’t have a clue what we’re doing. but very quickly, i mean, we did adapt, and it has been really interesting…it was definitely a learning curve.’ students in a live client clinic develop a number of professional skills; including research, oral and written skills.44 however, in terms of their skill development in pc and how it is different to live client work, the students felt that they have developed their professional skills in a completely different way. one student observed: ...even though it's the same sort (of skills) ...it's just completely different because you're taking it from a different angle of this person said this, and this could suggest this, and this is backed up by this. whereas you wouldn't do that in client work. the students really valued the diversity of doing both live client work and pc work. for one student it was ‘refreshing to just be able to do different things.’ another student commented that they have ‘enjoyed that it’s been two – in one module, it it’s been two 44 dunn, r. (2017). the knowledge, skills and attributes considered necessary to start day one training competently and whether live client clinics develop them. doctoral thesis, northumbria university reviewed article 93 different things.’ when probed as to whether they would have chosen to do pc work if it was a stand-alone model there were mixed views. for some students they would not have chosen to do a module that focussed solely on pc work, however one student commented that he would choose to do a stand-alone pc module but only if he had already undertaken live client work during his law degree. (c) theme 3 “employability” employability was another key theme that emerged from this research. employability as a concept covers a range skills and attributes. yorke stated that it is ‘a set of achievements – skills, understandings and personal attributes – that makes graduates more likely to gain employment and be successful in their chosen occupations, which benefits themselves, the workforce, the community and the economy.’45 whilst some of these skills are obvious to employer, employee and educator, for example, subject knowledge, other skills can be more difficult for students to develop and demonstrate. cle (and pcs) provide another way to develop many of the skills and attributes linked to employability, in a way that both contrasts with and complements more traditional methods of teaching within law schools. marson, wilson and van hoorebeek note that cle allows students to practise the skills expected of lawyers, stressing that doing 45 yorke, m. (2006) ‘employability in higher education: what it is – what it is not’ higher education academy reviewed article 94 so at an early stage ‘is likely to produce better equipped and more successful law graduates.’46 as noted earlier in theme 1, there were several skills that the students thought they had developed during their clinic experience, for example, communication, teamwork, negotiation, leadership, time management and analysis47. such skills are commonly noted by employers as being desirable skills for any graduate, not just those who are planning to work in the legal profession.48 as noted earlier, students may need more explicit guidance from supervisors on what relevant skills and attributes they are developing in the pc. this will enable students to put those skills into context when applying for and being interviewed for graduate roles. small, shadlock and marchant49 note that employability covers more than just the possession of knowledge, skills and attributes but also ‘the capability of individuals to use and present knowledge, skills and attributes to employers’50. students must be able to demonstrate their skills as well as possessing them and as legal educators, it is our role to enable students to contextualise and articulate those skills at key points of the recruitment process. 46 marson, j. wilson, a. & van hoorebeek, m. (n 11), pp.32 47 see foundations for practice, the whole lawyer and the character quotient, institute for the advancement of the american legal system, 2016, for an american view of the skills, competencies and characteristics required of new lawyers. 48 helping the uk thrive, cbi/pearson education and skills survey 2017. setting standards: the future of legal services education and training regulation in england and wales 2013 (n 31) 49 small, l. shacklock, k. and marchant, t. (2018) ‘employability: a contemporary review for higher education stakeholders’ journal of vocational education & training, p.148 50 ibid, p.150. reviewed article 95 during the focus group, students noted the impact the pc experience would have on them in a variety of ways. their ability to ‘stand out’ from other graduates was recognised as was the impact of their work on career influence and career development. when asked how they would use the pc experience to stand out at an interview, the students identified themselves as offering something different to other applicants. one student’s view was that ‘we’re in a really unique position…as…quasiundergraduate students conducting qualitative research in law…everyone i’ve spoken to, that’s unheard of’. the same student identified how he would use the experience at an interview ‘i’d be like, ‘well, i’ve got all this experience of your traditional law student, but when all of those avenues are exhausted and there’s raw data in from of me, i can get an answer from that’’. students could clearly identify and were prepared to advocate for the ‘additionality’ that the pc experience had provided. another student again perceived the difference the pc experience would give in comparison to others, stating ‘i think it does set you apart from other people because you might have the same skills as other people but you’ve used them in a different way. and that’s so valuable.’ they even considered how an employer might view them and the different perspective they would bring. this “setting apart” from other law students and in fact from other cle students appeared to be identified by the students as a key benefit of the pc experience. one student noted the decline in the number of students in the law school between first and fourth year and that so few of them would have had the pc experience – seeing it as an additional aspect that they are able to adapt to. this idea of setting reviewed article 96 themselves apart is intrinsic to a student’s development on their journey to employability. the recognition that a degree alone is not enough is the starting point and the need to offer something different is part of that journey. tomlinson51 notes the high levels of personal investment needed to improve a student’s employability with the recognition that having graduate-level credentials ‘no longer warrants access to sought-after employment, if only because so many other graduates share similar educational and pre-work profiles’52. francis highlights the need for students to understand the importance of distinguishing themselves from other students, cle being one way in which students could enhance their employability. it was clear that the students in the pc were able to see that they could use their experience to differentiate themselves from other graduates seeking employment. however, employer buy-in is needed and, as francis notes, the value of the experience will depend on the profession’s willingness to see the additional benefits cle, and now pcs, bring. students were able to think about how to use the pc experience in the short-term for job applications and interviews. one student, who already has a training contract, was able to look further ahead to see how they would use the experience on qualification and when looking for post-qualification employment ‘i think, well i hope 51 tomlinson, m. (2012) ‘graduate employability: a review of conceptual and empirical themes.’ higher education policy volume 25 number 4, pp. 407–431. 52 francis, a. (2015) ‘legal education, social mobility, and employability: possible selves, curriculum intervention, and the role of legal work experience’ journal of law and society 42, 2, pp.173-201 reviewed article 97 i get the opportunity within my traineeship to develop those law reform skills so that when i come to interview…i can say, “well actually started before i worked here.”’ interestingly, for one student the pc was a transformative experience, realising that a career as a lawyer was no longer for him. therefore, this research suggests that pc opens the door to alternative careers for law students. he said: i think it’s a bit of an anomaly that actually this experience has made me decide that i don’t think legal practice is for me at all, that i think the law reform side of it is a lot more interesting…so in nine years’ time, i hope that this is what i’ll be doing entirely…i find it more personally rewarding to fix the larger problems with the law. this is consistent with previous statements made in research, particularly by curran who argues that pc and law reform work gives students opportunities to decide if an alternative to legal practice is more preferable and what those alternatives are.53 another student had already identified that they did not want to go into practice as a solicitor but recognised that the skills they had learnt would be of use in another role ‘the actual personal skills that we manage to develop are something that obviously…you can’t take away.’ it appears that, as with “traditional” cle work, the students in the pc were using the experience to confirm that they did not want to enter the legal profession.54 more 53 curran, l. (2004) ‘innovations in an australian clinical legal education program: students making a difference in generating positive change’ international journal of clinical legal education volume 6, p. 174 54 childs, p. firth, n. and rijke, h.d. (2014) ‘the gap between law student career aspirations and employment opportunities’ the law teacher volume 48 issue 1, pp. 51-68, p.60 reviewed article 98 generally, the students could also see the benefit of using the pc skills they had gained in the future and how transferable those skills might be ‘i’d like to hope that some of the skills i’ve learned, teamwork and working and pressure and…research that…goes behind us being able to give recommendations, i hope i’ll be able to do that in the future.’ (d) themes 4 & 5 “motivation” and “supervisor relationship” another theme that emerged was motivation, more specifically why the students were initially motivated to work in the pc and how their motivation was maintained throughout the academic year. this linked to another theme – the student-supervisor relationship. initially the students did not fully appreciate the importance of their work in the context of having a positive impact in generating change. rather than being motivated by the opportunity to influence policy or law reform, the initial motivators appeared to be volunteering to work in the pc in order to "impress" their supervisor and to add work to their portfolio for assessment. the motivator of impressing the supervisor is unsurprising given that commitment and enthusiasm forms part of the assessment criteria for the slo.55 therefore, although the nature of the research and its importance to the client and wider community was emphasised at the beginning of the academic year, the students appeared to be initially motivated by their assessment and final grade. however, as the module progressed the students 55 one of the assessment criteria for the module is commitment to clients and to the slo. for example, in order to achieve a 2:1 for this criterion the student must demonstrate a very good level of commitment and/or enthusiasm for achieving the best outcome for clients. they must also complete tasks with a very good degree of diligence and show pride in their work and a willingness to help further. reviewed article 99 became more and more aware of the wider implications. this is consistent with previous research by dunn, whereby at the start of the clinic students were somewhat obsessed with their final grade. this motivation did not disappear at the end of their clinical experience, but is something which was hovering in the background when considering what was important to practice and future employability.56 it seems as though working with live clients, whether in a legal or policy setting, can shift a student’s focus from the internal motivations to external motivations, but where a clinic is assessed this may always be a driving factor for students. linked to this realisation of the wider implications of the pc, the students spoke enthusiastically about their experience in the pc and the pride they have felt in being part of impactful research. one student commented ‘i think for me, it’s been a lot more rewarding than live client work. ... this is a massive problem that’s affecting (society as a whole).’ the students really valued the opportunity to showcase their research in a conference setting at the end of the module to their peers, their supervisor and another member of staff. they felt that they had ‘really accomplished something’ and ‘it was a benefit because all of our work came together.’ due to this, the research team have been awarded university funding, to provide a large-scale conference at the end of academic year 2019/20, for all pc students to present their work. we want all students to feel this satisfaction and sense of accomplishment, and an event to celebrate and 56 dunn, r. (2017). the knowledge, skills and attributes considered necessary to start day one training competently and whether live client clinics develop them. doctoral thesis, northumbria university reviewed article 100 share their work felt necessary to the research team. this presentation will go in their portfolios and be used to assess their oral communication skills. (e) theme 6 “impact” the research suggests that the pc benefitted the students not just with skills training and helping them ‘stand out’, but also helped instil a social justice ethos and appreciation as to why this kind of work is important for society. the students highlighted that they hadn’t expected what policy work would entail, but at the end had ‘understood the importance of doing things like focus groups and the interviews.’ as stated above, students do not have this opportunity elsewhere on the programme to participate in empirical research, and, may not have realised what it entailed or the difference it can make without this experience. another student affirmed this conclusion, stating that they had not thought in depth about law reform and the impact it can have, but they were ‘grateful for the opportunity… because we don’t, you know, get that opportunity every day.’ whilst we do encourage students to think about law reform during their doctrinal learning, we do not often provide an avenue of how to take that further and try to implement change. one student stated that their learning which focused on reform had been very much ‘well, this person thinks this isn’t very good for this reason’ but by the end they could say ‘make it better by doing this’, and making recommendations, which amusing one joked ‘i surely can’t be qualified to say this.’ this work gave students a voice and the ability to understand the contribution they can make to law reform, reviewed article 101 something which they may have felt powerless or underqualified to do prior to their policy experience. they all discussed wanting to continue this work in the future in some way, and it seems as though this experience has given them the means to do so. the students appreciated that the issue they were working on affected many people throughout the country, and, had the very romantic notion all new researchers have, that ‘this is what you can do to make their lives better.’ this is not to say that research cannot make change, but sometimes this can take time. it was refreshing that students considered the bigger picture of their research and the potential impact it can have on society. when working with a live client, students can make their client’s life better, but when doing empirical research, they appreciated the wider impact it can have. by conducting empirical research and suggesting ways in which the law can be reformed, the students appreciated the importance of the work, particularly near the end of the year when they showcased their work in a conference setting. as stated above, this made the students feel as though they had ‘really accomplished something.’ they liked seeing all of their work come together. conclusion pcs play a valuable role in developing a student's professional skills and preparedness for practice and also by providing a transformative and rewarding experience. pcs simultaneously play a valuable role in shaping law and policy reform, contributing to reviewed article 102 the greater public good. this article has outlined a hybrid pc model operated by northumbria university through cle and has sought to provide an insight into the students' views on the pedagogical benefits that involvement in the pc brings. from a student perspective, the value of the hybrid pc lies not only in the development of professional skills and competencies from a completely different perspective but also in engaging with the mechanisms of the law and the role they can play in influencing change. the students gain an appreciation of future career paths available to them. taking into account the themes emerging from this pilot study, together with the authors’ experience in supervising in the pc, the authors would recommend further research in this area in order to create a body of work demonstrating the benefits of students undertaking a pc and best practice for those teaching in a pc. reviewed article 4 do we want a human first, and a lawyer second? developing law student empathy through clinical legal education amy lawton, university of edinburgh kathryn saban and sadie whittam, lancaster university abstract in the uk, the legal profession is increasingly acknowledging the importance of emotional intelligence and empathy in legal practice. furthermore, research has demonstrated that soft skills such as empathy can be taught, and that these skills should be incorporated in legal education. this study uses the basic empathy scale to examine whether law student participation in law clinic and tax clinic modules had any effect on students’ self-reported empathy levels. it is submitted that, in general, the students who worked in clinic experienced a statistically significant positive shift in their empathy levels. however, a few students who worked in clinic also experienced a decrease in their empathy levels, and the possible reasons for this are explored. in addition, this paper considers the impact of gender on students’ selfreported empathy levels. 1. introduction imagine the law clinic scene: client: it has been a very difficult time, and i am finding my divorce hard to discuss. student 1: oh…can you be more specific about the problems you are having? client: [begins to get upset]. problems have been happening for two years now. i am very worried about getting a divorce and about whether my children can still live with me. student 2: right. when did you get married? reviewed article 5 client: [now crying] we got married three years ago. my husband can be a very difficult person and has said he is going to sell our house. i am extremely concerned about where my family are going to live. student 1: so…my next question is where do you live currently? students have received training to work with real clients within a university law clinic setting. they have become well versed in professional conduct, practical legal research, legal letter writing and client interviewing skills. on the day of their first client interview with a member of the public, they are well prepared with their initial research and their interview plan. but then, the individual becomes upset when explaining the facts about the particularly distressing time they have been having trying to remedy their legal issue. this emotional dialogue deviates from the interview plan, and the students freeze and continue with their prepared questions, without acknowledgment of the client’s upsetting or difficult situation. this paper originates from supervising an initial client interview by students on a law clinic module where a similar situation to the above scenario happened. first client interviews can be nerve-wracking and unexplored territory for many of our students,1 so it is unsurprising that students would want to ‘stick to the script’ and the safety of their interview plan. at a time when the legal profession is seeking emotionally intelligent lawyers,2 this experience raises questions about whether law students should, and effectively can, be taught empathy skills and, specifically, whether empathy can be developed by engaging in clinical legal education. empathy can include both cognitive and affective elements.3 cognitive empathy is the ability to identify and recognise another person’s feelings and be able to communicate 1 for wider discussion on students’ emotions see: magdalena kmak & ketino minashvili, ‘students’ emotions in clinical legal education: a study of the helsinki law clinic’ (2021) the law teacher 150. 2 susan douglas, ‘incorporating emotional intelligence in legal education: a theoretical perspective’ (2015) 9(2) e-journal of business education and scholarship of teaching 56, 57. 3 rajvinder samra and emma jones, ‘fostering empathy in clinical teaching and learning environments: a unified approach’ (2019) 6 (1) australian journal of clinical education 1, 5. reviewed article 6 these emotions back to that person.4 conversely, whilst affective empathy also concerns the ability to understand and respond to another person’s feelings, it can also involve emulating or feeling similar emotions to another person.5 informally, our experience as clinical legal education supervisors suggested to us that as students became more experienced and confident in interviewing members of the public, they began to appropriately adapt their skills to show more empathy towards a client’s situation. however, we wanted to establish whether this observation could be supported by empirical research. by drawing on 76 original student surveys using the basic empathy scale, this paper argues that clinical legal education has the potential to develop empathy levels in our law students. the basic empathy scale seeks to measure both affective and cognitive empathy by asking individuals to self-report their emotional responses to 20 questions. whilst there is existing, quantitative literature in the medical field, legal scholarship is significantly less developed, and we have a limited understanding of the impacts of clinical legal education on empathy levels. prior research shows that empathy can both increase and decrease in individuals exposed to a clinical setting and our dataset reflects this. however, the majority of our students had higher empathy scores at the end of their time in the clinics. clinical legal education had largely beneficial impacts and helped to develop empathy levels in our law students. with this in mind, empathy could form the basis of an additional learning outcome for our clinical environments. this study also confirms and builds on the existing literature that identifies gender as an important factor in self-identified empathy levels. female students self-reported more highly in our dataset. due to the self-reporting nature of the basic empathy scale, this paper also calls for more research to be done to observe how our law 4 ibid, 5. 5 jean decety and philip jackson, ’a social neuroscience perspective on empathy’ (2006) 15(2) current directions in psychological science: a journal of the american psychological society 54. reviewed article 7 students react to difficult situations, as self-reported empathy levels may not reflect reality. 1.1. the clinical context at lancaster for this paper, we considered whether empathy levels increase or decrease in students engaging in a pro bono clinical setting.6 as part of these clinical legal education programmes, students participate and take on the role of a student legal adviser (or that of a tax adviser in the tax clinic). this paper draws on four modules (both a university law clinic and tax clinic)7 that ran during the 2020-21 academic year with 68 students in total. clinical legal education (cle) is now an established area of legal scholarship and some law clinics have now been running for decades.8 the benefits of clinical learning, which has also been labelled a “self-directed learning environment”,9 have been considered extensively in literature. clinics can expose students to broader questions, such as “how law interacts with society”.10 they help students to develop solicitor competences, such as to advise clients and act honestly.11 combe also identifies the possibility of wider skill development and argues that letter-writing, interviewing and reading skills can all be improved through clinical legal education.12 participation in 6 it is acknowledged that not all clinical settings require pro bono work to be undertaken, such as simulated environments. however, for the purpose of this paper, we will be considering the impacts on empathy of engaging with real-life clients (rather than teacher-created scenarios). 7 for details about how the north west tax clinic operates see: amy lawton, ‘lemons to lemonade: experiential learning by trial and error’ (2021) the law teacher 1 (advanced online publication). 8 see richard grimes, joel klaff and colleen smith, ‘legal skills and clinical legal education a survey of undergraduate law school practice’ (1996) 30 the law teacher 44; sara browne, ‘a survey of pro bono activity by students in law schools in england and wales’ (2001) 35 the law teacher 33. 9 jonny hall, ‘building reflection into the clinic supervision experience: research methods for the reflexive teacher’ (2019) 53(4) the law teacher 475, 476. 10 malcolm combe, ‘selling intra-curricular clinical legal education’ (2014) 48(3) the law teacher 281295, 281. 11 rachel dunn, victoria roper and vinny kennedy, ‘clinical legal education as qualifying work experience for solicitors’ (2018) 52(4) the law teacher 439-452, 445-446. 12 combe (n 10), 282; see also, laura lundy, 'the assessment of clinical legal education: an illustration' (1995) 29 the law teacher 311. reviewed article 8 law clinics can encourage students to go into legal practice,13 and become more “work ready”.14 it is not all about skills, however, as grimes notes that clinical learning can also help students understand “the meaning and application of law”.15 despite this rich body of clinical legal education literature, quantitative data on our clinic students and empathy is still relatively limited.16 this paper seeks to provide original data to begin to fill this gap in cle literature. all law clinics have slightly differing formats; however, the format of the law clinic and tax clinic requires the students to interview real clients, with real-life problems. they conduct a fact-finding interview to ascertain key details, dates, and information. due to the covid-19 pandemic, the students had not engaged in face-to-face client interviews when this research was undertaken. the format of the interview was either via telephone or online, and therefore we have only been able to consider empathy development for students who are working at a distance from their clients. these interviews might not be straight forward and may involve eliciting a protracted history from a client. it can be an emotional time for a client to relive and retell the problems that they have been facing. following on from the client interview, students research the issue and draft written legal advice to answer the client’s legal query. all advice is supervised by a qualified practitioner. 13 francine ryan, ‘a virtual law clinic: a realist evaluation of what works for whom, why, how and in what circumstances?’ (2019) the law teacher 1, 7. 14 francine cantatore, ‘the impact of pro bono law clinics on employability and work readiness in law students’ (2018) 25(1) international journal of clinical legal education 147, 147. 15 richard grimes, ‘reflections on clinical legal education’ (1995) 29 the law teacher 169, 171. 16 there is some discussion of empathy and cle but this tends to be more abstract in nature, see for example: andres gascon-cuenca and carla ghitti and francesca malzani, 'acknowledging the relevance of empathy in clinical legal education. some proposals from the experience of the university of brescia (it) and valencia (esp)' (2018) 25 ijcle 218. reviewed article 9 2. empathy and our students 2.1. the role of empathy in the legal profession the notion of “thinking like a lawyer” has traditionally been synonymous with rational problem solving, objectivity and an adversarial approach to conflict resolution, and emotion has been seen as antithetical to legal practice.17 however, in the uk, there has recently been a focus on the “emotionally intelligent lawyer”, and both clients and the profession have recognised the need to develop legal practitioner’s soft-skills and people-focused delivery.18 for example, the o-shaped lawyer project is aimed at reimagining the lawyer of the future, and it emphasises the vital importance of lawyers having human skills, such as empathy, influencing, communication and collaboration, in addition to an excellent legal mind.19 the project motto is “people first, then lawyers”, and the project has gained traction among clients; for example, centrica and easyjet have stated that they will only use law firms that are signed up to the o-shaped lawyer principles.20 the importance of empathy has also been recognised in the legal education and training review, which identified empathy as a core legal competency.21 however, of the competency frameworks to develop from this, only the bar standards board’s professional statement for barristers explicitly refers to empathy, requiring practitioners to “know how and where to demonstrate empathy, and act accordingly”.22 the profession is therefore increasingly acknowledging the importance of soft skills such as empathy in legal practice. this is important, as there is a body of research 17 douglas (n 2), 57. 18 ibid, 68. 19 greg bott, ‘now introducing the o-shaped lawyer’ (2020) https://www.cityam.com/o-shapedlawyer/ accessed 8 july 2021. 20 ibid. 21 ‘legal education training review’ (2013) https://letr.org.uk/wp-content/uploads/letr-report.pdf accessed 8 july 2021, para 4.85. 22 bar standards board, ‘professional statement for barristers: incorporating the threshold standard and competences’ (2016) https://www.barstandardsboard.org.uk/uploads/assets/a4556161-bd81-448d874d40f3baaf8fe2/bsbprofessionalstatementandcompetences2016.pdf accessed 8 july 2021. https://www.cityam.com/o-shaped-lawyer/ https://www.cityam.com/o-shaped-lawyer/ https://letr.org.uk/wp-content/uploads/letr-report.pdf https://www.barstandardsboard.org.uk/uploads/assets/a4556161-bd81-448d-874d40f3baaf8fe2/bsbprofessionalstatementandcompetences2016.pdf https://www.barstandardsboard.org.uk/uploads/assets/a4556161-bd81-448d-874d40f3baaf8fe2/bsbprofessionalstatementandcompetences2016.pdf reviewed article 10 demonstrating that emotion and cognition are intertwined, and both are necessary for effective decision-making and reasoning.23 it has even been argued that without empathy, “people could not live together”.24 empathy inevitably plays a role in legal practice, as lawyers are human and have both emotional and cognitive responses to legal issues.25 empathy can help lawyers build a rapport and a relationship of confidence and trust with their clients, and it has been argued that empathy is the “real mortar of an attorney-client (indeed any) relationship”.26 empathy can also help lawyers to better understand client needs and can improve their communication and negotiations with other parties.27 it is therefore a false dichotomy to maintain that emotions such as empathy remain separate from the rational, orderly process of lawyering.28 when discussing the role of empathy in legal practice, it is important to consider what we mean by empathy. two main types of empathy have been identified. the first type of empathy is affective empathy, which involves identifying, emulating and sometimes feeling the emotion of another person.29 in contrast, cognitive empathy involves consideration of the experiences of another person from that person’s perspective, while retaining a clear distinction between themselves and the subject of their empathy.30 within legal practice, the focus has predominantly been on cognitive empathy.31 however, both types of empathy have advantages and disadvantages. for example, affective empathy could cause a lawyer to over-identify with a client.32 an 23 chalen westaby and emma jones, ‘empathy: an essential element of legal practice or ‘never the twain shall meet’? (2018) 25(1) international journal of the legal profession 107, 108. 24 peter margulies, 're-framing empathy in clinical legal education' (1999) 5 clinical l rev 605, 605. 25 westaby and jones (n 23), 112. 26 david binder, paul bergman, susan price and paul tremblay, lawyers as counsellors: a client-centred approach (2nd edn, west group publishing 2004), 49. 27 samra and jones (n 3), 3. 28 westaby and jones (n 23), 108. 29 decety and jackson (n 5). 30 westaby and jones (n 23), 109. 31 samra and jones (n 3), 5. 32 stewart mercer and william reynolds, ’empathy and quality of care’ (2002) 52 british journal of general practice s9; samra and jones (n 3), 5. reviewed article 11 overly emotional response may be inappropriate in a legal setting and could blur professional boundaries, as lawyers are required to remain professional and pragmatic when giving legal advice and acting on behalf of their client. if cognitive empathy is not combined with emotion, it can be inauthentic.33 if lawyers solely rely on cognitive empathy its value is somewhat diminished, as empathy effectively becomes a communication tool instead of a way of developing trust and deepening the lawyer-client relationship.34 it is therefore important that lawyers can balance affective and cognitive empathy, as they must maintain objectivity and impartiality, without losing the authenticity of emotional empathetic connection. 2.2. the role of empathy in legal education our papers explores whether clinical legal education increases or decreases student empathy levels. this study is particularly relevant in light of the increased focus on the importance of empathy by both clients and the legal profession, and the evidence that empathy is a key part of legal practice. as silver argues, legal education should therefore “prepare students for the emotional dimensions of lawyering. we fail our students if we fail to prepare them for the impact of their emotional lives, as well as those of their clients, on the practice of law. legal education should cultivate emotional intelligence”.35 research has demonstrated that the skills that make up emotional intelligence, including empathy, can be taught, and these skills should be incorporated in legal education.36 despite this, traditional legal education often focuses on legal analysis, legal rules and their application to hypothetical situations, without consideration of client relation skills, such as empathy and compassion.37 criticism in the current academic literature 33 westaby and jones (n 23), 115. 34 ibid, 8. 35 marjorie silver, ’emotional intelligence and legal education’ (1999) 5(4) psychology, public policy and law 1173, 1174. 36 douglas (n 2), 62. 37 kristin b gerdy, 'clients, empathy, and compassion: introducing first-tear students to the heart of lawyering' (2008) 87 neb l rev 1, 32. reviewed article 12 suggests that legal education often focuses on text-based issues, rather than being client focused,38 with some academics arguing that legal education would be more efficient if it also focused on the human facets needed to be a lawyer, such as empathy, emotions and altruism.39 fletcher and weinstein argue that “legal education devotes insufficient attention to developing the attendant skills and mechanisms lawyers need to negotiate successfully the emotional demands of the profession”.40 gerdy argues that “too often students are taught legal analysis in a near vacuum, with little or no discussion of how the legal concepts they are learning actually impact the lives and emotions of real people”.41 it has been suggested that this could be because lawyers and academics have previously seen soft skills, and the role of emotion and empathy, as irrelevant or as a distraction from the legal issue at hand.42 however, as discussed previously, the emotional responses of a lawyer or those of a law-student to their client, directly impacts how they deliver legal services, and therefore needs to form part of legal education.43 the traditional methods of teaching law have come under criticism for failing to provide a mechanism of developing soft skills, including empathy in students. whilst lectures can allow students to work through hypothetical scenarios, this environment has been found to be unlikely to promote empathy and compassion.44 rosenberg argues that although a lecturer could impart that empathy has a value in legal studies, a large classroom setting would not provide the environment for students to develop their own empathy skills.45 in contrast, there is research to suggest clinical legal 38 ibid, 32. 39 ibid, 31. 40 laurel e fletcher and harvey m weinstein, 'when students lose perspective: clinical supervision and the management of empathy' (2002) 9 clinical l rev 135, 144. 41 gerdy (n 37), 30. 42 fletcher and weinstein (n 40), 144. 43 ibid, 156 44 gerdy (n 37), 34. 45 joshua d rosenberg, 'teaching empathy in law school' (2002) 36 usf l rev 621, 637. reviewed article 13 education programmes allow for the learning of skills already taught in law, such as problem solving and conflict resolution, but extends this remit by ensuring that students also become emotionally intelligent.46 it has been argued that clinical legal education programmes provide the ‘optimal’ environment to promote development of these skills.47 clinical legal education is about learning by doing. central to participating in clinical legal education is the relationship that the student has with their client.48 emotional intelligence, which includes empathy, has been noted to allow students to enhance their client care skills, communication skills and consideration of ethical situations.49 clinical legal education allows students to feel emotions, observe emotions in others and to reflect and develop their own practice as a result.50 if we look to medicine as an example, which utilises clinical education, a review into 27 separate studies of the medical profession found that medical students who had engaged in practical work with real clients had a statistically higher attitude change when working with under-served or disadvantaged patients. this contrasted with no statistical attitude change for those medical students who worked on hypothetical situations only. the conductors of this research suggest that this demonstrates “the transformative power of experiential and empathy-based learning”.51 rosenberg argues that assisting students to develop their empathy skills can be achieved through a three-stage process, in that students observe model behaviour, students practice that behaviour and individualised feedback is given.52 the role of the teacher/supervisor is a fundamental feature of assisting a student with developing their empathy skills. research suggests that supervisors should: introduce the concept of empathy at the start of the course, develop a framework in which students feel 46 douglas (n 2), 57. 47 ibid, 68. 48 ibid, 65. 49 ibid, 68. 50 ibid, 64. 51 samra and jones (n 3), 8. 52 rosenberg (n 45), 637. reviewed article 14 comfortable with discussing their emotional responses to legal work, model how students should engage in a professional way with clients and encourage selfawareness and reflection.53 a further benefit of a clinical setting is that it allows students the opportunity to consider both the positive and the negative consequences of empathy. it is important for students to be aware that negative emotional responses can impact their ability to meet a client’s interest.54 in addition, students could become overly attracted to the emotional side of the client’s situation, which could distract them from resolving the legal issue.55 providing guidance on self-awareness and boundary setting are offered within the current literature as examples of how to assist students with avoiding any negative consequences of empathy.56 it is essential that students are trained and inducted into empathetic awareness and development, and various teaching strategies can be employed. examples can include: the use of role-modelling (where students observe their supervisor conducting interview techniques), role-play (simulating client interactions), using reflection for students to be able to consider their own experiences and feelings, in class discussions relating to empathy, and hearing the experiences of lawyers who have worked alongside real-clients. importantly, the current literature suggests that as well as learning from others, students need to have their own experiences to feel empathy and compassion (through experiential learning).57 this participatory element is important as observation of others alone has been deemed insufficient to enhance empathy. rather, it is the participation and the individual feedback from the student’s supervisor which research has suggested assists in enhancing empathy as a skill.58 53 fletcher and weinstein (n 40), 144-152. 54 ibid, 150. 55 ibid. 56 for detailed consideration of a model for clinical supervision, see: fletcher and weinstein (n 40), 156. for consideration of clinical teaching and learning environments, see samra and jones (n 3), 10-11. 57 for detailed exploration relating to learning activities to promote empathy, see: gerdy (n 37) 42-62 58 gerdy (n 37), 39. reviewed article 15 however, it is also important to recognise that if empathy levels can be increased through clinical education, they can also be decreased. for example, studies have demonstrated that empathy levels decline as medical students take part in clinical education.59 hypotheses for why empathy levels decrease during medical school include the notion that students transition from idealism to realism as a result of clinical work, or that they shed their empathic responses as a coping mechanism to deal with stressors.60 the studies from medical clinical education suggest that empathy could also decline in clinical legal education as students start working with clients.61 as the research suggests that empathy levels can be both increased or decreased through clinical legal education, it is important for educators to develop teaching strategies to develop empathy and prevent its decline as students participate in clinic.62 in this regard, it would be helpful for educators to share best practice across clinical disciplines, such as law and medicine, to facilitate interdisciplinary learning.63 in addition, the potential for empathy decline reinforces the fact that students who take part in clinical learning must be supported to discuss the effects of stress or the potential loss of idealism that may result from their participation in clinic.64 3. methods 3.1. student surveys this paper draws on a total of three surveys that were conducted during the 2020-21 academic year in a quantitative analysis of empathy in students. the surveys were 59 paula nunes, stella williams, bidyadhar sa and keith stevenson, ’a study of empathy decline in students from five health disciplines during their first year of training’ (2011) 12 international journal of medical education 12; samra and jones (n 10), 11. 60 ibid, 12; samra and jones (n 3) 11. 61 samra and jones (n 3), 11. 62 ibid. 63 ibid. 64 ibid, 12. reviewed article 16 distributed to two groups of students: the students participating on a clinical module at lancaster university (two surveys) and a control survey that was distributed to all second and final year students in the law school.65 in total, this paper draws on 76 survey responses (31 control responses and 45 clinic responses (25 for survey 1, 20 for survey 2)). the response rate was therefore relatively low, with around 540 students available to respond to the control survey and 68 students enrolled on clinical modules. quantitative methods have been criticized for their lack of flexibility which leads to surface data (i.e., data that is not deep or rich).66 the sample size is also relatively small at 76 and so the results are potentially less statistically significant. despite the small sample size, the data and results from this study are consistent across all three surveys, demonstrating a level of reliability and generalizability to the dataset. in addition, this initial dataset will allow us to begin to explore whether there has been any shift in empathy as a result of engaging in clinical legal education. the first clinic survey and control survey asked demographical questions of students. in the control survey, 84% of respondents identified as female (n=26), 13% as male (n=4) and 3% as questioning (n=1). for the clinic students, 76% identified as female (n=19), 16% as male (n=4), and 8% as non-binary (n=2). 68% of clinic students (n=17) self-identified as fulfilling one or more of the widening participation criteria,67 with 81% (n=25) in the control student group. the most common widening participation criteria self-identified with were ‘the first in my family to progress to higher education’ (n=24), ‘from a low income background’ (n=20), ‘a mental health problem, specific learning difficulty and/or on the autism spectrum’ (n=14) and ‘from a certain minority ethnic group’ (n=13). the data therefore leans heavily towards female 65 these modules included the lancaster university law clinic and the north west tax clinic. the north west tax clinic also had students from uclan participating in it. the dataset contains one response from a uclan student. this will not be disaggregated to protect the anonymity of the student. 66 alan bryman, quantity and quality in social research (unwin hyman 1988), 104. 67 as adopted by lancaster university, available at < https://www.lancaster.ac.uk/wideningparticipation/our-strategy-and-approach/eligibility-criteria/> last accessed 16 july 2021. https://www.lancaster.ac.uk/widening-participation/our-strategy-and-approach/eligibility-criteria/ https://www.lancaster.ac.uk/widening-participation/our-strategy-and-approach/eligibility-criteria/ reviewed article 17 responses, as well as those who self-identify as coming from a widening participation background. this is important, as: under experimental conditions, women and men show small differences in empathy for pain, but under conditions which allowed for personal judgement about oneself, the role of gender stereotypes may have underpinned larger differences in empathy scores.68 females also consistently score more highly on measures of empathy.69 this bias towards the female voice in the dataset will therefore be borne in mind and a discussion of gender and empathy will take place below. the reliability and generalisability of data is incredibly important in qualitative research.70 due to the small size and self-selecting nature of the student responses, this data will not seek to set out concrete conclusions on whether clinical legal education (and specifically pro bono clinics in this study) can encourage empathy growth in our students. it is also important to note that the clinical modules were run virtually for the 2020-21 academic year due to covid-19. our data therefore draws from the experiences of our students in this context. as there is no literature on whether clients engaged with virtually have any different impact on empathy to clients seen face-toface, this paper will not attempt to draw conclusions on this point. that being said, the data in this paper provides a foundation for discussion and further study into the empathy levels in our students and whether learning and teaching methods are able to alter these levels. 68 samra and jones (n 3), 9. 69 darrick jolliffe and david farrington, ‘development and validation of the basic empathy scale’ (2006) 29 journal of adolescence 589, 598. 70 nahid golafshani, ‘understanding reliability and validity in qualitative research’ (2003) 8(4) the qualitative report 597. reviewed article 18 3.2. basic empathy scale (bes) various methods have been used to measure empathy but self-reports “constitute the most extensive strategy used for the study of empathy”.71 the basic empathy scale (bes) was developed by joliffe and farrington to overcome the weaknesses of other measures of empathy.72 these “shortcomings” of other scales include equating sympathy with empathy.73 originally, the bes was developed to understand the relationship between empathy and offending;74 and it draws on four of the basic emotions to do so (fear, sadness, anger and happiness).75 joliffe and farrington argue that all emotions stem from the basic emotions allowing the bes to more accurately engage with measures of empathy.76 it is a two-factor scale that considers both cognitive and affective empathy factors (where affective empathy is the ability to share the emotional experiences of others, and cognitive empathy is the ability to take the mental perspective of others)77 by asking students 20 self-reflective questions.78 self-reports to measure empathy are not without criticism: “because they are based on self-assessment, they usually tell us very little about empathic accuracy”.79 that being said, since its development by joliffe and farrington, the bes has been validated in 71 noelia sánchez-pérez et al. ‘assessing children’s empathy through a spanish adaptation of the basic empathy scale: parent’s and child’s report forms’ (2014) frontiers in psychology 1, 1; see also karen gerdes et al., ‘conceptualising and measuring empathy’ (2010) 40 british journal of social work 2326, 2334. 72 joliffe and farrington (n 69). examples of other scales include: the hogan empathy scale, the questionnaire measure of emotional empathy, and the interpersonal reactivity index (at 590). 73 joliffe and farrington (n 69), 591. 74 ibid, 592. 75 ibid, 593. 76 ibid. 77 christine cox et al., ‘the balance between feeling and knowing: affective and cognitive empathy are reflected in the brain’s intrinsic functional dynamics’ (2012) scan 727,727. 78 although this has been criticised in light of more recent work that suggests there may be three relevant components to empathy: arnaud carre et al., ‘the basic empathy scale in adults (bes-a): factor structure of a revised form’ (2013) 25 psychological assessment 679, 680. 79 gerdes et al. (n 71), 2334. reviewed article 19 spain,80 france,81 italy,82 china,83 slovakia,84 poland and others.85 as a widely validated measure, the bes therefore provides a useful starting point for collecting quantitative data on empathy levels in our law students. 3.3. data analysis descriptive statistics “are an excellent starting point for most statistical analyses and are a good way to summarize and communicate information”.86 as such, this paper will use averages (both in total empathy scores and average responses) to look at patterns and changes in empathy levels. to consider whether there is a statistically significant relationship between students’ empathy scores at the start of clinic and at the end, a two-sample t-test will be carried out. all data analysis was conducted via spss.87 the bes asks 20 questions that requires participants to respond on a 5-point likert scale from strongly disagree (1) to strongly agree (5). eight of the bes questions are reversed, which required responses to be back coded into spss. the total empathy score that can be generated from the bes scale is therefore between 20-100 and the individual responses can range between 1-5. lower scores correlate to lower levels of 80 noelia sánchez-pérez et al. ‘assessing children’s empathy through a spanish adaptation of the basic empathy scale: parent’s and child’s report forms’ (2014) frontiers in psychology 1. 81 carre et al. (n 78), 685; f d’ambrosio et al., ‘the basic empathy scale: a french validation of a measure of empathy in youth’ (2009) 46 personality and individual differences 160. 82 paolo albierto, giada matricardi, and diana toso, ‘la basic empathy scale, uno strumento per la misura della responsivita` empatica negli adolescenti: un contributo alla validazione italiana [the basic empathy scale, a measure of empathy in adolescence: a further contribution to the italian validation]’ (2010) 14 psicologia clinica dello sviluppo 205. 83 yaogua geng, dan xia, and beibei qin, ‘the basic empathy scale: a chinese validation of a measure of empathy in adolescents’ (2012) 43 child psychiatry and human development 499. 84 vladimíra čavojová, miroslav sirota, and zuzana belovičová, ‘slovak validation of the basic empathy scale in pre-adolescents’ (2012) 54 studia psychologica 195. 85 izabela zych et al., ‘psychometric properties of the basic empathy scale in polish children and adolescents’ (2020) current psychology 1. 86 thom baguley, serious stats: a guide to advanced statistics for the behavioural sciences (palgrave macmillan 2012), 4. 87 for a useful guide to spss, see daniel denis, spss data analysis for univariate, bivariate, and multivariate statistics (wiley 2019). reviewed article 20 empathy. overall, we expected there to be a correlation between time spent in a clinic and an increase in empathy. we did not expect there to be no change (null hypothesis). 4. results 4.1. results: control students using the bes, an individual will have a score between 20 and 100, with a lower score indicating a lower empathy response. n minimum maximum mean std. deviation totalempathyscore 31 56.00 96.00 77.0968 11.57110 valid n (listwise) 31 table 1: average total empathy scores for control group in april 2021. the control survey was administered to all second and final year students in the law school in april 2021. from that survey, a total of 31 useable responses were generated, with 16 partial responses that were deleted because the student did not complete the survey. the average control empathy score was 77, with an average question response of 3.85 (standard deviation: 0.57855). the control survey provides a useful comparison point for our clinic student data. this figure is similar to the figures produced in jolliffe and farrington’s original development of the bes,88 demonstrating that law students are not particularly unempathetic. 4.2. results: clinic students the clinic students were surveyed three times during the academic year. however, the response rate for the second survey was lower (13 responses). as such, this paper 88 where females scored >70 and males >60 (albeit in the specific context of helping others). as our dataset has a skew towards females, our results are in a similar range. jolliffe and farrington (n 69), 606. reviewed article 21 will draw on the first and final surveys that were administered in october 2020 and may 2021 respectively. n minimum maximum mean std. deviation totalempathyscore 25 52.00 88.00 76.2000 9.92052 valid n (listwise) 25 table 2: average total empathy scores for clinic students in october 2020. the initial survey received 25 responses and presented an average starting empathy score of 76 for our clinic students. this equated to an average response of 3.81 per question (standard deviation: 0.49603). whilst this survey was administered six months before the control survey, the first clinic survey produces a score that is not dissimilar to the control score of 77. n minimum maximum mean std. deviation totalempathyscore 20 61.00 96.00 80.1000 10.98755 valid n (listwise) 20 table 3: average total empathy scores for clinic students in may 2021. by looking at the average score for the third survey responses, there is a small (around 5%) increase to a score of 80, which equates to an average response of 4.01 per question (standard deviation: 0.54938). however, there was a smaller response rate to the final survey and different students responded. we therefore tracked through the students who had responded to both surveys, to see whether the increase was present there. reviewed article 22 n minimum maximum mean std. deviation totalempathyscore1 11 52.00 88.00 75.0000 12.44990 totalempathyscore2 11 61.00 96.00 79.6364 12.49218 valid n (listwise) 11 table 4: average total empathy scores for clinic students who responded to both surveys. a very similar starting score was present in the 11 students who responded to both surveys. again, there was an increase from a starting score of 75 to 80 during the final survey – which also sits well with the average survey 3 data. this equated to a shift from an average question response of 3.75 to 3.98 – or an increase of 6.1%. this is a fairly small increase in empathy response, yet positive growth, nonetheless. to test the reliability and significance of this growth, a paired t-test was performed on the data for the 11 students on spss. a paired t-test confirms whether or not there is a positive or negative correlation between two datasets. this means that it can explore whether there has been a statistically significant growth or reduction in empathy for our eleven students (in this instance, whether the growth is statistically significant). to determine whether a result is statistically significant, a significance level needs to be identified. in statistics, a p (significance) value of lower than 0.05 is the conventional threshold for declaring statistical significance.89 the significance values for the clinic student data is held in table 5: 89 for a discussion of p values and the 0.05 threshold, see giovanni di leo and francesco sardanelli, ‘statistical significance: p value, 0.05 threshold, and applications to radiomics—reasons for a conservative approach’ (2020) 4 european radiology experimental 1; see also baguley (n 86), chapter 3. reviewed article 23 paired samples test (t-test) paired differences mean std. deviation std. error mean 95% confidence interval of the difference lower upper pair 1 averageempathysc ore1 averageempathysc ore2 -.23182 .27044 .08154 -.41350 -.05014 pair 2 totalempathyscore 1 totalempathyscore 2 -4.63636 5.40875 1.63080 -8.27001 -1.00272 t df sig. (2-tailed) (p) pair 1 averageempathyscore1 averageempathyscore2 -2.843 10 .017 pair 2 totalempathyscore1 totalempathyscore2 -2.843 10 .017 table 5: t-test results for eleven students who took both surveys. the 2-tailed significance figure is 0.017, which is halved to 0.0085. the results of the ttest produce a p value (or significance value) that is smaller than 0.05 (for our data, reviewed article 24 0.0085). this means that the differences between the first survey (with the lower scores) and the second survey (with the higher scores) is statistically significant. 5. discussion overall, there was a positive shift in empathy scores for our clinic students. the literature demonstrates that measuring empathy is not simple, and there are significant questions as to whether empathy can be altered by external activities. in addition, the self-reporting nature of the basic empathy scale raises questions as to whether our students are actually more empathetic in reality. nonetheless, the data demonstrates that the law students who have engaged in clinical legal education at least perceive themselves to be more empathetic. student gender widening participation total empathy score 1 total empathy score 2 change 1 female no 84 80 -4 2 male no 52 61 +9 3 female yes 82 84 +2 4 female yes 62 61 -1 5 female yes 81 80 -1 6 female yes 75 78 +3 7 female yes 82 96 +14 8 male yes 57 67 +10 9 male yes 75 81 +6 10 female no 88 95 +7 11 female yes 87 93 +6 reviewed article 25 table 6: a breakdown of empathy scores for clinic students who took both surveys crossreferenced with self-identified gender and widening participation status. the table above shows the individual empathy scores for each of the 11 students tracked through the academic year. the right-hand column indicates any change in the empathy scores from the start to the end of the clinic, with a positive number demonstrating a growth in empathy. a negative change applies where the empathy score has gone down. an important starting point is that all 11 students had a change in their score and that the change ranges from 1 to 14. some students saw very little change, while others had increases that are more significant. the remainder of this discussion will explore two common themes within empathy literature: decreases in empathy from clinics and the gender divide. 5.1. empathy ups and downs as rosenberg argued: an improvement in empathy skills can be achieved where students observe model behaviour, students practice that behaviour and individualised feedback is given.90 all but three of the eleven tracked students improved their empathy skills but this was not universal. indeed, three students reduced their scores, albeit with a –2 point average. the reductions are therefore small. this reflects the position where exposure activities can also decrease empathy levels.91 there are a number of reasons why this might be the case: as a coping mechanism, because they have started work with clients, or a loss of idealism.92 these reasons resonate with experiences in the clinic. students face difficult situations, clients with complex personal lives, and a legal system that weighs heavily on the unrepresented. for our students at lancaster, they were specifically dealing with clients with personal difficulties such as bereavement, family estrangement, the threat of court proceedings and diagnosed mental health difficulties. 90 rosenberg (n 45), 637. 91 nunes et al. (n 59); samra and jones (n 3), 11. 92 samra and jones (n 3), 11. reviewed article 26 clinics therefore expose students to situated clients, which allow students to: identify, question and inquire deeply into the complex, embedded practices through which legal rules and doctrines take on meaning in the world through the interpretive activities of lawyers as they engage with clients in understanding their stories and in shaping for and presenting them to the world.93 however, the “client-centredness” in legal literature is seen as a pedagogical theory that develops students,94 or even as a “cultural” goal,95 rather than a potential emotionally distressing experience that could negatively impact on a student’s ability to empathise in the future. it would be important for us to better understand these emotional impacts of clinical work on our students. that being said, most students increased their empathy scores in the clinic. of the students with an increased empathy score, the average gain was 7.1 points. this equates to an 8.9% increase in empathy score, which is much higher than any reductions seen from participating in the clinic. there would appear to be a stronger positive impact of clinics on our students. this is particularly notable in the students who had lower scores at the start of the clinic. the two scores of 52 and 57 are less than halfway along the possible empathy scale. with a potential score of between 20 (low empathy) and 100 (high empathy), the halfway point would lie at 60. by the end of their time in the clinic, they both increased by +9 and +10 respectively, bringing both scores into the 60s. no student finished the clinic with a score below the halfway point. gerdy argues that participation and individual feedback promote empathy growth in our students.96 it is not, therefore, sufficient to simply place students in a clinical 93 carolyn grose, 'beyond skills training, revisited: the clinical education spiral' (2013) 19 clinical l rev 489, 497. 94 ibid. 95 in exposing students to the ”class” of clinic clients: douglas a blaze, 'deja vu all over again: reflections on fifty years of clinical education' (1997) 64 tenn l rev 939, 946. 96 gerdy (n 37), 39. reviewed article 27 setting to see their empathy thrive and grow. it is important to frame and structure the feedback that students receive to best promote empathy growth. the data from the law clinic and tax clinic demonstrate that empathy growth is possible in clinical education. 5.2. gender and empathy when considering the empathy scores reported in table 6 above, it is also important to recognise that empathy is a gendered concept. gender stereotypes such as “boys will be boys”, “girls are emotional”, “real men don’t cry” and “crying like a girl” are prevalent in society and culture, and perpetuate the idea that women are naturally more empathetic and caring than men.97 however, this is not borne out by recent research on the topic. baez et al conducted studies examining empathy and gender differences.98 in the first of their studies, they asked 10,802 people (roughly half female and half male) to watch animated scenarios where either intentional or actual harm was inflicted on an individual, as well as a neutral scenario where no harm was inflicted.99 participants were also presented with two moral dilemmas, in which they had to decide whether to harm one person to save five.100 the results of this study showed that although there were some significant sex differences in the study, the effect sizes were miniscule.101 as such, the authors concluded that “sex does not play a crucial role in empathy”.102 baez et al also conducted a second study, in which participants were asked to complete a self-evaluation questionnaire of their empathy levels.103 in this study, 97 sandra baez, daniel flichtentrei, maria prats, ricardo mastandueno, adolfo m. garcia, marcelo cetkovich and agustı´n iba´ñez, ’men, women. . .who cares? a population based study on sex differences and gender roles in empathy and moral cognition’ (2017) 12 (6) plos one, 1, 1. 98 ibid. 99 baez et al (n 97), 4. 100 ibid, 5. 101 ibid, 12. 102 ibid. 103 ibid. reviewed article 28 women reported much higher empathy levels than men.104 the authors suggested that there might be higher self-reported empathy levels among women because sensitivity and empathy are stereotypically associated with the female role.105 as such, it is likely that women feel more comfortable presenting themselves as empathetic, although the de facto levels of empathy are similar in men and women.106 the gendered aspects of empathy are highly relevant to our study, as we asked students to self-report on their levels of empathy. in accordance with baez et al’s second study, female respondents may have self-reported higher levels of empathy than their male counterparts due to gender-relevant social stereotypes about empathy.107 in survey 1 (the first clinic survey), students who identified as female scored an average of 79 (or 3.95 per question), while males scored an average of 67 (or 3.35 per question). the students who identified as non-binary scored an average of 67.5 (3.37). the male/ female averages correlate with the control survey scores (female, 77; male, 68.5; other, 94). there is a lack of scholarship on empathy beyond the binary genders, but the initial data suggests that female law students are self-reporting higher empathy levels than their male colleagues. it is also notable that of the 11 students that we tracked through the academic year, only 3 were male. in addition, of the 3 male students that we tracked, 2 reported initial empathy scores of 52 and 57, which were the lowest initial scores (these scores were less than halfway along the possible empathy scale). by the end of their time in clinic, the 2 male students who had reported the lowest initial scores had both increased their empathy self-evaluation by +9 and +10 respectively, which brought their scores into the 60s. however, this still put them in the bottom three for self-reported empathy levels. it is important to recognise that gender-based societal and cultural stereotypes may have influenced how the male and female students in our study self-reported 104 ibid, 14. 105 ibid, 11. 106 ibid. 107 ibid. reviewed article 29 their empathy levels, even if their actual empathic responsiveness was similar.108 this is a topic that requires further research; for example, it would be helpful to study empathy and sex differences by directly observing empathic behaviours in law clinic, to examine the extent to which self-reported empathy levels match actual behaviour.109 6. concluding remarks this paper has drawn on 76 student surveys to explore some of the impacts of clinical legal education on our law students’ empathy levels through the use of the basic empathy scale. law students are not unempathetic. the control and initial surveys indicate positive empathy levels amongst our students. however, time spent in a clinical setting can both improve and diminish empathy levels. these ups and downs in empathy levels were seen in the students on the clinical modules at lancaster. on the whole, however, this paper argues that the impact of pro bono clinical work on students is positive – most saw increases in their empathy scores. these increases were relatively limited (between 5-6%) but were statistically significant. the self-reporting nature of the basic empathy scale means that our students may not be more empathetic in reality – but they certainly perceive themselves to be. in the very least, pro bono clinics expose law students to difficult and emotionally challenging situations that make them question their empathetic responses. our data also confirms the existing literature that suggests female students are more likely to self-report higher empathy scores. this does not necessarily mean that our female students are more empathetic in reality. it would be important to develop our understanding of student wellbeing, empathy and our clinical projects. some clinics engage in some really distressing case work (for example, where clinics engage in asylum work), but the emotional impact on our students is not often picked up on. 108 ibid. 109 ibid, 16. reviewed article 30 whether there is a link between developing empathy, student wellbeing, and emotional resilience is an important question for clinical legal education. the themes that have emerged from the data help us to begin to explore the impact of clinical legal education on student empathy. so far, it would appear that clinical legal education has largely beneficial impacts and helps to develop empathy levels in our law students. with that in mind, clinical legal educators might want to consider adding empathy as a discrete learning outcome to their clinics or to consider more informally how their clinics help to foster and grow empathy in their law students. while we would not be able to set a learning outcome of “become more empathetic” or “understand appropriate empathetic responses” due to the ups and downs of empathy in cle and also bloom’s taxonomy of learning;110 we could potentially set a learning outcome requiring students: to be able to identify emotionally difficult situations in the clinic and reflect on your own response to them. a learning outcome such as this also reflects the the bar standards board’s professional statement for barristers, which requires practitioners to “know how and where to demonstrate empathy, and act accordingly”. this can then be aligned with assessment by asking students to reflect on a difficult case, an emotional client, or where they struggled with an interview in a reflective journal. this is something that many clinics already do.111 reflective journals are not the only way to scaffold reflection,112 and a more informal, non-assessed approach might be to facilitate open 110 see, for example, david krathwohl, ‘a revision of bloom’s taxonomy: an overview (2002) 41(4) theory into practice 212, 212. 111 anil balan, ‘investigating the feasibility of using student reflective journals to understand how clinical legal education an develop the ethical competence of law students’ (2020) 54(1) the law teacher 116, 127. 112 debra coulson and marina harvey, ‘scaffolding student reflection for experience-based learning: a framework’ (2013) 18(4) teaching in higher education 401, 407. reviewed article 31 discussion on empathy and emotional responses in clinic. conversations are powerful and can help our students process their experiences in clinic.113 such discussions would also allow us to begin to gauge the wider emotional impacts cle might be having on our students. acknowledgments we would like to thank richard grimes for their invaluable input into this paper. 113 lawton (n 7); coulson and harvey (n 112), 409; for a wider discussion of experiential learning and conversation, see ann baker, patricia jensen and david kolb, ‘conversation as experiential learning’ (2005) 36(4) management learning 411, 412. reviewed article 4 a study of supervisor and student views on the role of clinical legal education in developing commercial awareness siobhan mcconnell1 senior lecturer, northumbria university. abstract this article examines the role of clinical legal education in developing commercial awareness, a key employability skill. using data collected from a mixed-methods research study involving a visual data collection tool (a diamond), this research contributes to understanding of whether, and how, clinical legal education develops law students’ commercial awareness. this study provides the first detailed empirical evidence of the importance of commercial awareness to those teaching and learning in clinic, the teaching activities that supervisors use and that students identify as developing commercial awareness, and the impact of those activities in a graduate recruitment context. this data is important because commercial awareness is required across a range of graduate sectors, including the legal profession, and law students have a variety of available career options. the results indicate that whilst students and supervisors deem commercial awareness very important, there are differences between the two groups in terms of their understanding of what it means, and the type of clinic activities identified as developing commercial awareness. the results 1 the author would like to thank all of the staff and students at northumbria university who participated in this study and also the reviewers for their very helpful and insightful comments. reviewed article 5 suggest that there is a genuine, but yet not fully realised, opportunity for students to develop commercial awareness in clinic. as well as providing a unique insight into the role of clinical legal education in developing commercial awareness, the author makes recommendations for clinicians on how best to support students in developing their commercial awareness. key words: commercial awareness, clinical legal education, graduate employability; diamond ranking, law students introduction commercial awareness is an employability skill that is required by a range of graduate employers.2 for many law firms, particularly larger commercial firms that recruit a high percentage of trainee solicitors,3 it is a desirable, important skill and this is reflected in law firms’ recruitment literature4 and in the narrative that such firms employ.5 law firms expect students to demonstrate commercial awareness during the 2 institute of student employers (ise), ‘student development survey 2020 supporting the learning and development of entry-level hires’ 17. 3 trends in the solicitors’ profession, annual statistics report 2019, the law society, october 2020 <www.lawsociety.org.uk/topics/research/annual-statistics-report-2019> accessed june 2022 46 showing almost 50% of training contract vacancies are at firms with 26 + partners (33.5% at firms with 81+ partners.) 4 linden thomas, ‘”it puts the law they’ve learnt in theory into practice”: exploring employer understandings of clinical legal education’ in reimagining clinical legal education 139, 141; tim bellis, ‘simply the second best’ (2013) 163 nlj 19. see also <https://careers.linklaters.com/en/earlycareers/commercial-awareness> and <https://cms.law/en/media/local/cmscmno/files/publications/other/cr-bbf-resources-commercial-awareness> accessed june 2022. 5 james marson and adam wilson and mark van hoorebeek, ‘the necessity of clinical legal education in university law schools: a uk perspective’ (2005) 7 int’l j clinical legal educ 29, 31; kerry jarred, ‘making an impression’ (2005) 155 nlj 1541; catherine baksi, ‘training: adding value’ (2009) 12 ls gaz. http://www.lawsociety.org.uk/topics/research/annual-statistics-report-2019 https://careers.linklaters.com/en/early-careers/commercial-awareness https://careers.linklaters.com/en/early-careers/commercial-awareness https://cms.law/en/media/local/cms-cmno/files/publications/other/cr-bbf-resources-commercial-awareness https://cms.law/en/media/local/cms-cmno/files/publications/other/cr-bbf-resources-commercial-awareness reviewed article 6 graduate recruitment process.6 the transition from law student to commercially aware candidate is tacit but relatively unexplored in a law school setting. clinical legal education (cle), the domain where students experience the realities of legal practice7 and develop a range of skills and knowledge,8 seems like an obvious setting for developing commercial awareness. given the importance of commercial awareness to law firms, it is critical to understand whether cle actually supports development. this article seeks to enhance our understanding of the role of cle in developing commercial awareness by examining the perspectives of those teaching and learning in cle. the literature review section of this article will provide additional context for the need for this research. although several studies, for example those by alexander and boothby9 and thomas, 10 have considered commercial awareness in the context of cle, it has not been the main focus of any empirical research involving cle. commercial awareness is considered to be an important graduate employability skill by employers but there is very limited research on its importance to law students and supervisors 6 hilary sommerlad, ‘the commercialisation of law and the enterprising legal practitioner: continuity and change’ (2011) 18 int’l j legal prof 73, 85-87; monidipa fouzder, ‘how to…get a training contract’ (2014) ls gaz 18. 7 marson and others (n 5) 29, 30, 39; lydia bleasdale-hill and paul wragg, ‘models of clinic and their value to students, universities and the community in the post-2012 fees era’ (2013) 19 int’l j clinical legal educ 257. 8 margaret martin barry, ‘practice ready: are we there yet’ (2012) 32 bc j l & soc just 247; tony king, ‘clinical legal education: a view from practice’ in thomas (ed), reimagining clinical legal education (n 4). 9 jill alexander and carol boothby, 'stakeholder perceptions of clinical legal education within an employability context' (2018) 25 int'l j clinical legal educ 53. 10 thomas (n 4). reviewed article 7 working in cle. more consideration is needed of the views of these key stakeholders and how their views compare to those of the legal profession. there has been some interesting work examining development from a student perspective, for example in studies by cantatore and others11 and thanaraj,12 but further evidence is needed on what commercial awareness means to students, how development takes place and what activities students identify as supporting development. there is no empirical data on what supervisors (or indeed anyone involved in teaching law) understand commercial awareness to mean and how, if at all, they seek to develop it, leaving a gap in the literature. overall, there is limited empirical evidence of whether and how cle develops commercial awareness. to address the research gaps noted, this study considered the following research questions: (1) how important is commercial awareness as a skill to those teaching and learning in cle? (2) do students develop commercial awareness in clinic and, if so, what types of cle teaching and learning activities promote development? 11 francina cantatore, david mcquoid-mason, valeska geldres-wiess and juan carlos guajardopuga, ‘a comparative study into legal education and graduate employability skills in law students through pro bono law clinics’ (2021) 55 law tchr 314. 12 ann thanaraj, ‘”the proficient lawyer”: identifying students’ perspectives on learning gained from working in a virtual law clinic’ (2017) 14 us-china l rev 137. reviewed article 8 to answer the research questions, this study used a diamond, a visual data collection tool that provides both qualitative and quantitative data. supervisors and students teaching and learning in the law clinic (lc) at northumbria university participated in the data collection process between 2019 and 2021. full details of the research method, and how the difficulties of undertaking a mixed-methods study during a pandemic were addressed, are provided in the method section. given the gaps in the existing literature, this research makes an original contribution to knowledge by providing the first detailed empirical evidence of the perceived importance of commercial awareness to those teaching and learning in cle, the teaching activities that supervisors use and that students identify as developing commercial awareness, and the impact of those activities in a graduate recruitment context. this research documents how students and, for the first time, supervisors define commercial awareness, exploring the differences in definition and considering if student understanding developed during their time in clinic. this article begins with a brief overview of commercial awareness within the framework of law student employability before examining the existing literature on commercial awareness within the field of cle. the study method is then explored before documenting the results. this research demonstrates that students and supervisors recognise the importance of commercial awareness, ranking it highly in comparison to other skills. the data indicates that some students do develop commercial awareness in clinic but its potential for development is not fully realised. reviewed article 9 whilst supervisors used a range of innovative and authentic activities to enhance commercial awareness, the activities were not always identified by students as developing their commercial awareness. there was little explicit signposting of commercial awareness by supervisors, linking their activities to commercial awareness development. this lack of signposting may negatively impact on student understanding of, and confidence in, their commercial awareness. it may also impact on their ability to articulate it during the recruitment process. this article concludes with suggestions on how clinicians can address these concerns and how, more generally, law schools might develop students’ commercial awareness further. what is commercial awareness? there is no single definition of commercial awareness. wilkinson and aspinall observed it was ‘an amorphous term with no clear definition in the research or practitioner-based literature.’13 in a legal setting, commercial awareness appears to encompass winning, understanding, advising and retaining clients whilst running a successful business.14 lawyers must also understand the external factors (social, economic, political or technological) impacting on clients and how this impacts on the legal advice provided to clients.15 the legal education and training review (letr) 13 david wilkinson and samantha aspinall, ‘an exploration of the term ‘commercial awareness’: what it means to employers and students’ (national council for graduate entrepreneurship 2007) 5. 14 siobhan mcconnell, ‘a systematic review of commercial awareness in the context of the employability of law students in england and wales’ (2022) 3 journal of european legal education 127, 130. 15 ibid. reviewed article 10 found commercial awareness to be a ‘composite concept’16 including a range of knowledge, skills and attributes, such as knowledge of a client’s business and sector, knowledge of business issues, the ability to interpret financial data, marketing and networking.17 much of the empirical and conceptual literature focuses on commercial awareness being an understanding that a law firm is a business18 – law firms do not exist simply as professional service providers, firms need to make money. huxleybinns argued that undergraduate students needed to know terms such as ‘profit and loss…client relations, strategy, mission’ to succeed in the legal profession.19 strevens and others noted that commercial awareness was ‘understanding that law firms function in much the same way as…businesses in general, and that there is a wider picture than the black letter law applied to a given set of facts.’20 this viewpoint is reflected in law firm and practitioner literature that emphasises the importance of lawyers understanding business issues. 21 a systematic literature review conducted by the author considered the existing literature on commercial awareness in the context of the employability of law students in england wales. the review considered the various definitions of commercial awareness found in the literature. the review suggested that, in a legal context, commercial awareness could be defined as 16 legal education and training review, ‘setting standards the future of legal services education and training regulation in england and wales’ (2013) para 2.75. 17 ibid. 18 caroline strevens and christine welch and roger welch, ‘on-line legal services and the changing legal market: preparing law undergraduates for the future’ (2011) 45 law tchr 328, 340; rebecca huxley-binns, ‘what is the q for?’ (2011) 45 law tchr 294, 304. 19 huxley-binns (n 18) 304. 20 strevens and others (n 18) 341. 21 fouzder (n 6); jarred and baksi (n 5). reviewed article 11 understanding: (1) law firms, their clients and the sectors in which they operate; (2) how external influences (political, social, economic and technological) impact on law firms, clients and their respective sectors and the advice law firms provide; (3) that the legal rights and remedies of clients may not always best suit their objectives; and (4) that a law firm is a business lawyers need to make money to stay in business.22 the results and discussion section of this article considers the aspects of this definition that are used by the supervisors and students who participated in this study. commercial awareness – employability and the impact on law schools employer surveys have found that students lack commercial awareness23 and there is a recognised skills gap.24 whilst the surveys indicate that most employers do provide on-the-job training on commercial awareness,25 commercial awareness is required by many employers during the recruitment process.26 a 2020 graduate employer survey ranked it 15th out of 25 employability skills required.27 its importance is increasing – in a recent covid-19 impact survey assessing the skills that employers thought would become more important over the next five years, it ranked seventh, ahead of teamwork.28 wilkinson and aspinall concluded that students may find understanding 22 mcconnell (n 14). 23 ise (2020) (n 2) 18. ise, ‘student development survey 2021, managing development in a crisis’ (ise 2021) 23. 24 ise (n 2) 20. 25 ise 2021 (n 23) 30, 86% of employers provided training. ise (2020) (n 2) 81% of employers. 26 <https://targetjobs.co.uk/careers-advice/skills-for-getting-a-job/what-commercial-awareness> accessed june 2022. 27 ise (2020) (n 2) 17. 28 ise ‘student recruitment survey, challenge and resilience in the year of covid-19’ (2020) 47 – 44% of respondents identified its future importance. https://targetjobs.co.uk/careers-advice/skills-for-getting-a-job/what-commercial-awareness reviewed article 12 what commercial awareness means challenging, interpreting it differently to employers.29 students may fail to realise its importance and struggle to demonstrate it during the graduate recruitment process. although many employer surveys considering the importance of commercial awareness include law firms,30 none are specific to the legal profession. however, the increasing importance of commercial awareness to the profession over the last 40 years is well documented.31 universities are, increasingly, charged with responsibility for skills development32 and there is growing recognition of the importance of commercial awareness to law schools.33 the letr acknowledged the importance of commercial awareness to the profession but did not suggest integration into the undergraduate law degree, instead recommending it be a more explicit aspect of the legal practice course (lpc), especially for those seeking careers in commercial law.34 however, many training contract vacancies, requiring an understanding of commercial awareness, are open to applicants in their second year of undergraduate study and, given the definition 29 wilkinson and aspinall (n 13) 5. 30 ise (n 2). 31 hanlon and jackson, ‘last orders at the bar? competition, choice and justice for all – the impact of solicitor-advocacy’ (1999) 19 oxford journal of legal studies 555; mcconnell (n 14); christopher r brown and tim mcgirk, ‘the leading euromarket law firm’ (1982) 1 int’l fin l rev 4; blackhurst and stokes, ‘clients rank london’s law firms (1985) 4 int’l fin l rev 15; clive h zietman, ‘the legal services revolution’ (1995) 61 arbitration 274. 32 louise morley, ‘the x factor: employability, elitism and equity in graduate recruitment’ (2007) 2 journal of the academy of social science 191, 192; michael tomlinson, ‘employers and universities: conceptual dimensions, research evidence and implications’ (2021) 34 higher education policy 132, 135. 33 richard collier ‘”love law, love life”: neoliberalism, wellbeing and gender in the legal profession – the case of law school’ (2014) 17 legal ethics 202, 213. see also nicholas saunders, ‘from cramming to skills – the development of solicitors’ education and training since ormrod’ (1996) 30 law tchr 168, 184-186. 34 letr (n 16) recommendation 12, xv and para 4.69 and 7.20. reviewed article 13 suggested above, all law firms require commercially aware employees. huxley-binns argued convincingly for commercial awareness to be a more important feature of the law degree, noting how many students begin paralegal work without undertaking the lpc.35 the introduction of the solicitors qualifying examination (sqe) perhaps provides further need for a focus on commercial awareness in law degrees as new pathways to qualification open and the lpc closes. as there will be no lpc with a remit to teach commercial awareness, commercial awareness must be part of the undergraduate offering, not least because it is likely that firms will continue to recruit second year students. also, the number of paralegals working in the profession increases each year.36 the sqe means paralegal work will become a more important route to qualification as a solicitor because such work constitutes qualifying work experience. law students who seek to become paralegals also need to be commercially aware. further, it must be acknowledged that many law students go into non-law professions that require commercial awareness such as accountancy and finance, human resources and retail management.37 35 huxley-binns (n 18) 304. 36 many law graduates start work as paralegals or other legal associate professionals following graduation but the number doing so each year is unclear. research suggests the number of legal associate professionals is increasing by 1% each year. it is predicted that the number of legal associate professionals will increase by 2% per year and that 2800 will be needed per year – see matthew williams and others, ‘research to inform workforce planning and career development in legal services, employment trends, workforce projections and solicitor firm perspectives final report’ (institute for employment studies 2019) paras 7.1 and 7.3. <https://www.employmentstudies.co.uk/resource/research-inform-workforce-planning-and-career-development-legal-services> accessed june 2022. 37 ibid para 2.4 finding that between 2011 and 2016 around 35% of law graduates went into the legal profession either as trainees or paralegals each year. king (n 8) 125. ise 2020 (n 2). https://www.employment-studies.co.uk/resource/research-inform-workforce-planning-and-career-development-legal-services https://www.employment-studies.co.uk/resource/research-inform-workforce-planning-and-career-development-legal-services reviewed article 14 the need for more focus on commercial awareness in law schools is reflected in studies that have considered the skills required by law firms. strevens and others asked nine law firms about the skills required of potential trainees. commercial awareness was of high importance, a ‘universal employability trait’ required by both business and high street firms.38 however, most employers thought it could only be learnt in work; this implied, the authors noted, that university could not teach it.39 the authors disagreed, contending it could be developed through simulated activities where students connected legal knowledge and rules to real life contexts.40 sommerlad considered the ongoing commercialisation of law firms in a study of recruitment practices involving twelve large regional and multi-national law firms and law students.41 sommerlad documented the importance of commercial ability to law firms and found commercial awareness to be a key part of the application process, tested on application forms, in interviews and at assessment centres.42 etherington found that all but one of the six law firms he interviewed assessed for commercial awareness.43 89% of the 28 students whom he surveyed stated it had been assessed.44 the findings of these studies reflect the narrative of many firms and observations noted in 38 strevens and others (n 18) 340-1. 39 ibid 340. 40 ibid 340, 343, 344. ben waters, ‘the importance of teaching dispute resolution in a twenty-first century law school’ (2017) 51 law tchr 227, 243 and ‘”a part to play”: the value of role-play simulation in undergraduate legal education’ (2016) 50 law tchr 172, 191. see also wilkinson and aspinall (n 13) for a more general discussion of how universities can develop commercial awareness. 41 sommerlad (n 6), there were no law student comments on commercial awareness. 42 ibid 87. 43 laurence etherington, ‘public professions and private practices: access to the solicitors’ profession in the twenty-first century’ (2016) 19 legal ethics 5, 20. 44 ibid 18. reviewed article 15 practitioner literature.45 law schools would be unwise to ignore these findings because law firms (and other graduate employers) demand commercially aware candidates – omitting commercial awareness from a law degree will negatively impact on the employability potential of law students. it must also be acknowledged that employability is one of the six main metrics used to rate universities for the teaching excellence and student outcomes framework. literature on commercial awareness and cle law firm views on cle were examined by thomas who interviewed professionals from 17 firms the majority stated commercial awareness was highly desirable, second only to academic ability. his review of 50 top law firm websites found that 30 firms mentioned commercial awareness on their recruitment pages.46 interviewees expressed mixed views on whether cle could develop commercial awareness. some thought it would enhance commerciality whilst others thought it had limited impact.47 one interviewee noted how cle would not provide exposure to costing, billing and contextual advice, a viewpoint that this study will examine. alexander and boothby also considered cle and its role in developing commercial awareness in a study involving nine law firms, six students, eight alumni and ten supervisors at the author’s institution.48 the employers in their study wanted commercial graduates, confirming 45 websites (n 4); baksi and jarred (n 5); fouzder (n 6). 46 thomas (n 4) 141. 47 ibid 142-3. 48 alexander and boothby (n 9) 67. reviewed article 16 thomas’ findings on the importance of commercial awareness to legal employers.49 alexander and boothby’s study also provides a valuable alumni perspective – the participants who were in practice who had experienced cle as students felt commercial awareness was not developed in clinic. 50 the authors noted how clinic provided ‘limited exposure to aspects of commerciality’51 and the clear challenge in providing experience of the commercial realities of practice,52 again echoing thomas’s findings. alexander and boothby also briefly examined supervisor perspectives, noting their awareness of commercial drivers. however, there was no consideration of how supervisors supported students in developing their commercial awareness, leaving a gap in the literature. the student perspective was examined in thanaraj’s study involving a virtual law clinic. 53 thanaraj found students thought that they developed business acumen in their clinic and they identified some developmental activities. however, it was unclear whether students linked the activities specifically to the development of commercial awareness and/or other skills, what they understood commercial awareness to mean and the sample size (10) was relatively small. dunn’s study provides further insight into the student viewpoint of whether cle develops 49 ibid 67. 50 ibid 66. 51 ibid 70. 52 ibid 83. 53 thanaraj (n 12). reviewed article 17 commercial awareness.54 dunn argued that cle made students aware of the importance of commercial awareness but, because clinic could not reflect the realities of practice, it was ‘highly unlikely that this perception has been embedded from their experience.’55 this finding reflects the experiences of the alumni in alexander and boothby’s study. in a pro bono setting, blandy found that even though commercial law firms required commercial awareness, none of the 52 students and alumni surveyed mentioned it as being developed through pro bono work.56 blandy stated this was because no commercial law clinic students participated, implying that commercial awareness would only be acquired by students with commercial work experience. in contrast, cantatore’s study in australia, involving 33 students in four pro bono clinics (including a commercial law clinic) and a control group of 34 non-clinic students, found that pro bono work developed industry awareness.57 the pro bono students thought that their graduate skills developed by 13% but it was unclear how much industry awareness increased. the qualitative results indicated some students felt that they had developed industry awareness but it was unclear how many thought so, the 54 rachel dunn, ‘the knowledge, skills and attributes considered necessary to start day one training competently and whether live client clinics develop them’ (2017) phd thesis 229 <https://nrl.northumbria.ac.uk/id/eprint/36261/1/dunn.rachel_phd.pdf> accessed january 2022. this research uses dunn’s methodology but with differing skills. 55 ibid. 56 sarah blandy, ‘enhancing employability through student engagement in pro bono projects’ (2019) 26 int’l j clinical legal educ 7, 32. 57 francina cantatore, ‘the impact of pro bono law clinics on employability and work readiness in law students’ (2018) 25 int’l j clinical legal educ 147. the literature uses industry awareness interchangeably with commercial and business awareness. https://nrl.northumbria.ac.uk/id/eprint/36261/1/dunn.rachel_phd.pdf reviewed article 18 type of clinic that they experienced and what type of activities aided development. cantatore and others later examined how industry awareness was enhanced across three pro bono clinics in differing jurisdictions.58 there was a 44% perceived increase in competency for 10 students in australia, who gained more understanding of how law firms worked and what practice would be like.59 industry awareness was enhanced in clinics in south africa (by 48%) and chile (increase unclear).60 this study provides more qualitative evidence of the student experience but lacks consideration of what students understood industry awareness to mean, its importance to them and why their perceptions changed during their clinic experience. although this article focuses on how cle enhances commercial awareness in a clinic situated in england, cantatore and others’ study provides a useful international perspective on this area whilst also highlighting the importance of commercial awareness to law students studying in other jurisdictions. students may struggle to define commercial awareness.61 however, there is very little research on how law students define it. turner and others provided data on how one law student defined it as an understanding of the changing legal market and areas of law.62 in dunn’s study involving cle, students in a criminal firm expressed mixed views on what commercial awareness meant, linking it to experience gained in 58 cantatore and others (n 11). 59 ibid 329. 60 ibid 330-332. 61 wilkinson and aspinall (n 13). 62 juliet turner and alison bone and jeanette ashton, ‘reasons why law students should have access to learning law through a skills-based approach’ (2018) 52 law tchr 1, 13. reviewed article 19 practice.63 the lack of research on law student definitions means that there is very little insight into whether their understanding of commercial awareness reflects that of the legal profession or any other graduate profession they seek to enter. overall, there is limited empirical research that focuses on the role of cle in developing commercial awareness. this study attempted to address the research gaps noted by engaging directly with students and supervisors in a clinic setting. method this study invited groups of third year (level 6) students and supervisors in the author institution’s lc to rank the importance of the skills that they perceived law students to need to access graduate employment using diamond ranking. the ranking exercise was followed by a semi-structured interview with each group of participants. the lc has eight main areas of practice and students are divided into ‘firms’ of between 8 and 10 students who advise clients on particular areas of law dependent on supervisor expertise. six firms in the lc participated in the study, representing 24% of all the firms in the lc in the academic year 2019/20 and five (62.5%) of the eight areas of lc practice, providing a cross-section of student experience. thirteen supervisors participated in the study, representing 72% of supervisors working in the lc in the academic year 2020/21 and 7 (87.5%) of the main areas of practice. all supervisors had worked in the lc in the academic year 2019/20 and two supervisors (of business and 63 dunn (n 54) 230. reviewed article 20 civil/employment firms) had tutored the business and civil/employment firms participating in the student data collection. ethics approval was obtained from the author’s institution prior to starting the data collection process and each participant provided informed consent to the study. what is diamond ranking and why use it? diamond ranking is a visual data collection tool that has been used in research into education.64 participants, usually working in groups, use cards containing words, statements or pictures, ranking them according to the descriptor being tested, for example, importance, where the most important cards are placed at the top, the least important at the bottom and cards on the same line are equally important. diamond ranking was selected for this research study, rather than questionnaires or focus groups, because it provides a simple and quick data collection tool that provides quantitative data, in terms of card placement, and qualitative data through the participant discussions around card placement.65 further, it was chosen because it enables participants ‘to play an active part in the research’ allowing participants to work together as a group, encouraging and stimulating discussion.66 completed diamonds can be compared to analyse the similarities and differences in views from the perspective of card placement. the discussions that accompany card placement 64 jill clark, ‘using diamond ranking as visual cues to engage young people in the research process’ (2012) 12 qualitative research journal 222. 65 rachel dunn, ‘diamonds are a girl’s best friend…and a great data collection tool!’ (2020) 27 int’l j clinical legal educ 33. 66 clark (n 64) 224. reviewed article 21 provide qualitative data that records how the group reached agreement on the ranking, perhaps uncovering issues that the researcher would not have considered in a focus group. when combined with other research tools, here a semi-structured group interview that followed each diamond, diamond ranking provides a rich source of data that can be analysed in a number of ways. nine card diamonds have been used in education research.67 more recently, dunn used a 16 card diamond (the diamond16) in clinics inviting participants to rank the importance of the skills and attributes required for legal practice.68 she used 11 preselected cards and provided five blank cards for participants to suggest their own skills, adding more depth to the data collection.69 this study adopted dunn’s approach, asking students and supervisors in the lc to complete diamond16s, but using different skills. 70 the diamond16 & the data collection process diagram 1 shows the layout of the diamond16 used in this study and the 11 preselected skills cards. these skills were chosen because they were representative of skills used in other graduate employment surveys and the letr.71 67 clark (n 64). 68 dunn (n 65) used 16 cards because of the large number of skills required for legal practice. 69 ibid 38-9. 70 ibid 44 for skills used. apart from written and oral communication, dunn used different skills to those used in this study. commercial awareness was not a pre-selected card and from the groups that completed her diamond16 it was chosen as an extra skill by two out of 17 student groups, one out of six supervisors and both law firms, (n 54) 175. 71 surveys (n 2) and (n 23). reviewed article 22 written and oral communication commercial awareness teamwork application of information technology self-management subject knowledge initiative numeracy enthusiasm problem solving negotiation diagram 1 – diamond layout and pre-selected cards participants were invited to use the diamond16 to rank the importance of the skills that they perceived law students to need to access graduate employment.72 participants completed five other blank cards, ranking these alongside the preselected cards. participants were free to interpret the skills on the cards as they wished. the researcher did not get involved in the discussions other than if asked to clarify the 72 participants were free to interpret this as they wanted – all groups focused on employment in law firms but the discussions considered other careers too. 7 6 6 5 5 5 4 4 4 4 3 3 3 2 2 1 reviewed article 23 instructions. the numbers on each line of diagram 1 were added after data collection to aid analysis of the results by quantifying the relative importance of each card.73 dunn asked her student participants to complete the diamond16 at three separate data collection points – before, during and after their time in clinic. this study invited student participants to complete the diamond16 at two points, namely, before and after their clinic experience. this approach was taken because it was determined that taking a ‘before and after’ view would provide a sufficiently robust insight into student perceptions of the importance of the various skills and the role of cle in developing commercial awareness. this approach also minimised the time that student participants were asked to give to the study and avoided the risk of student participants becoming fatigued by the data collection process. the supervisor participants were invited to do one diamond16 – here a ‘before and after’ overview was not required. in line with the research questions, the researcher wanted to ascertain supervisor perceptions on the importance of commercial awareness to them as teachers and identify the teaching and learning activities that they used to support development. 73 see carl towler, pam woolner and kate wall, ‘exploring teachers’ and students’ conceptions of learning in two further education colleges’ (2011) 35 journal of further and higher education 501, where a similar approach was taken with a 9 card diamond. there are other options dunn (n 54) 158 grouped parts of her diamond16 together before quantifying each group. reviewed article 24 participant information table 1 details the firms and the number of student participants that completed each diamond16. as table 1 demonstrates, a variety of types of firm were asked to participate, for example, firms with students advising on more commercial matters and firms with students advising individuals on family and criminal law. this ensured that the views of students working in a broad range of different practice areas were obtained. the policy firm (pf) operates within the lc and carries out research for clients on law reform projects rather than providing legal advice. it should be noted that the author was the supervisor of this firm whilst students knew the author conducted research into employability, they were unaware that the research focused on commercial awareness. firm & key 74 number of students – first diamond16 (total = 40) number of students – second diamond16 (total = 13) business (bf) 7 2 civil/employment (cef) 7 6 family – undergraduate (ff) 8 3 policy75 (pf) 6 2 criminal 8 family postgraduate (bar course) 4 74 the key is used to attribute student comments. in the lc, students are grouped into firms by practice area. 75 for a discussion of policy clinics see lyndsey bengtsson, rachel dunn and siobhan mcconnell, ‘the policy clinic at northumbria university: influencing policy/law reform as an effective educational tool for students’ (2020) 27 int’l j clinical legal educ 68. reviewed article 25 table 1 – student participants table 2 details the supervisor participants. supervisor practice areas & key76 number of supervisors completing diamond16 (total = 13) business firm employment firm (ef) 2 civil firm (cf) x 2 civil/employment (cef) x 1 employment x 1 4 family firm (ff) x 3 crime firm x 1 4 housing firm (hf) x 1 welfare firm (wf) x 2 3 table 2 – supervisor participants as table 2 demonstrates, supervisors were placed into four different groups to complete the diamond16. supervisors were grouped into similar practice areas, allowing for comparison between those areas. for example, supervisors working in more commercial focused practice areas were grouped together as were those practising in more ‘high street’ practice areas such as family, welfare and criminal law. an example of a completed diamond16 is provided at figure 1 below. 76 the key is used to attribute supervisor comments. reviewed article 26 figure 1 – in-person diamond16 completed by student participants in a civil/employment firm each diamond16 was followed by a semi-structured group interview. prompt questions were used to promote consistency across the groups.77 each session lasted 15-60 minutes, was video-recorded and then transcribed. the shorter sessions tended to be those involving the student participants although some sessions involving student participants, particularly when completing the second diamond16, did take longer with more discussion of the various issues. 77 see appendix. reviewed article 27 the data collection process – disruption and limitations as noted, the intention was for each group of student participants to complete diamond16s at the start and end of their lc year. the first five diamond16s took place in person using a physical diamond16 in november/december 2019 with a one semester family firm, comprising predominantly international postgraduate students, completing one in early 2020. the second in person diamond16, scheduled for the end of the academic year (summer 2020), was thwarted by covid-19. given the challenges that students faced and the uncertainty created by the pandemic, the researcher felt unable to ask students to participate in the second diamond16 in summer 2020, even in an online setting. when the academic year 2020/21 began, and with it the move to online teaching, the author adapted the study, working with colleagues in the university technology support team to create an online diamond16 for use in blackboard collaborate. an example of a completed electronic diamond16 is provided at figure 2 below. reviewed article 28 figure 2 – on-line diamond16 completed by supervisor participants in the family and crime firms as indicated in table 1, not all of the student firms completed both diamond16s. even where firms completed the second diamond16, not all of the student participants returned some had left university or were too busy. overall, as table 1 demonstrates, 40 student participants completed the first diamond16 and 13 completed both. this could be seen to impact on the reliability of the findings, particularly in relation to the quantitative data. in an attempt to ameliorate this potential difficulty, the results section considers the quantitative data in two ways, firstly by analysing the results by including all of the participating groups and secondly by excluding the groups that did not complete the second diamond16, (see graphs 2 and 3 in the results and discussion section below). also, a range of types of firm returned for the second diamond16, facilitating an analysis of a cross-section of experience. the rich reviewed article 29 qualitative data provided by the student participants offers useful insight into their perceptions of the role of commercial awareness during their time in clinic. at the end of the second diamond16, student participants were shown photographs of both diamonds and encouraged to consider both and discuss to what extent their views had changed. for some key questions, participants were reminded of statements made during the first diamond16, for example, when being asked to define commercial awareness. both of these approaches allowed for some participant validation of the data, allowing student participants to consider their previous comments and provide further views after their lc experience.78 the intention had been to collect the supervisor data in 2020. again, covid-19 made this impractical and data was collected online between april and july 2021. the supervisor diamond16s allowed for data triangulation by providing another perspective for comparison with student views. this allowed for a ‘fuller and more informative picture of what is going on’79 in the context of the research questions. dunn acknowledged the limited drawbacks of using the diamond method, particularly the issue of individual dominance during group discussions, but also noted the rich data that such dialogue can produce.80 in this study, there was little evidence of individuals dominating discussions. whilst some student participants 78 dunn (n 65) 65. harry torrance, ‘triangulation, respondent validation, and democratic participation in mixed methods research’ (2012) 6 journal of mixed methods research 111,113. 79 torrance (n 78) 113. 80 dunn (n 65) 66. reviewed article 30 could be quiet, the other group members tended to take a collegiate approach. the researcher did not interfere in the process of completing the diamond16, other than to confirm instructions, as she wanted to be an observer of, rather than a guide to, the discussions. however, the researcher did confirm with the group members that they were satisfied with the completed diamond16 before asking questions. following completion of the data collection, the transcripts were thematically analysed using nvivo software. the transcripts were coded and organised into themes. an inductive approach was taken and only data relevant to commercial awareness in the context of the research questions is considered here. the themes explored in the following section are: (1) importance, (2) changing perceptions, (3) understanding, (4) development activities and (5) impact. the qualitative data is also considered in the context of the quantitative data, providing understanding of ‘what is happening behind the numbers.’81 results and discussion theme 1 importance for the purpose of comparing the perceived importance of the skills, each row of the diamond16 was numbered so that each skill could be quantified – see diagram 1. the 81 dunn (n 65) 58. reviewed article 31 scores for each skill for each group were added together, indicating the perceived importance of commercial awareness to both supervisors and students. supervisors: important to all but professional background is influential as graph 1 demonstrates, commercial awareness was perceived as the fourth most important skill for supervisors. graph 1 – total scores for diamond16 skills – supervisors there was a distinction in importance linked to supervisor practice area. the civil/employment and business/employment groups scored commercial awareness at 5 whilst the welfare/housing and crime/family groups scored it at 3. supervisors working in a more business-orientated context considered commercial awareness to 0 5 10 15 20 25 30 sc or e skill skills scores supervisors reviewed article 32 be more important than supervisors working with individuals on more personal legal matters, for example, family or welfare benefits issues. the card placement discussions suggested perceptions on the importance of commercial awareness related to professional background and experience. a business firm supervisor with a commercial law background stated: i think commercial awareness is, for me, towards a higher ranking one, so you know what business you’re entering and how it works. (bf supervisor) a supervisor with a family law background observed: because we’re not really in commercial areas i don’t know whether we see it as being as important as, say, a corporate lawyer would. (ff supervisor) many recognised how importance was linked to the narrative employed by law firms. some were unconvinced about this in reality given their personal experience, for example: i’m always a bit funny about commercial awareness ‘cos i know it’s really important but…i rank commercial awareness quite low because i don’t think i’ve ever really understood it but then i’ve got this far in my career without it. (ff supervisor) although at group level there were differences in ranking, most supervisors thought that commercial awareness was needed by all types of firm, not just commercial practices. one stated: reviewed article 33 i don’t just associate it with business type work, i mean corporate/commercial. i think it’s also to do with who your clients are and linking that in to your business so i suppose that is then across the board a bit isn’t it. (ef supervisor) in fact, some supervisors thought that lawyers working in smaller practices needed more commercial awareness. one stated: i think there may be this misunderstanding that you need to be commercially aware if you go into a commercial law firm but actually you need to…be even more commercially aware if you go into a high street firm because you’re operating within a small business and your role is actually more enhanced…more hands on responsibility for the management…and the income stream of that business. you actually might have less of an impact or control over it if you are in a large commercial firm so i think it’s important across all types of firms. (cef supervisor) some supervisors linked commercial awareness to client care, again acknowledging its importance across the profession, for example: you can’t achieve client care and your obligations as a lawyer under the code of conduct…unless you understand what their motivations are, how their business works, how they are impacted by things around them. (ef supervisor) reviewed article 34 these viewpoints take a different approach to the letr82 (that associated commercial awareness more with commercial work) and blandy (who thought that commercial awareness would be acquired only by those studying commercial law). the narrative of these supervisors supports the findings of its ‘universal’ importance noted by strevens and others in their study involving law firms.83 students: legal profession and law school influence the student picture was more complicated because whilst six firms completed the first diamond16 only four completed both. the total scores for all firms (whether completing one or both diamond16s) are shown in graph 2. like the supervisors, commercial awareness was perceived as the fourth most important skill. 82 letr (n 16) para 7.20. 83 strevens and others (n 18) and etherington (n 43). 0 10 20 30 40 50 60 70 sc or e skill skills scores all student groups reviewed article 35 graph 2 scores for diamond16 skills all student groups as noted in the method section of this article, the non-completion of the second diamond16 by two firms may misrepresent the results. graph 3 shows the scores where these two firms are excluded – commercial awareness becomes the joint top third skill. this reflects the omission of the lower scores (criminal 4, postgraduate family, 2) attributable to the excluded firms. graph 3 total scores for diamond16 skills student groups completing both diamonds like supervisors, students ranked commercial awareness highly. during card placement discussions, many noted it had ‘got to be’ in the top part, its ranking influenced by the views of law firms and the law school. for example: 0 10 20 30 40 50 60 sc or e skill skills scores student groups completing both diamonds reviewed article 36 commercial awareness we’re always getting told commercial awareness is important. (cef student) and but every lecture we’ve been in, all they’ve said is “commercial awareness is key! you need commercial awareness!” so i feel like that has to be… in the top 3 lines, …otherwise they’ve just wasted their breath. (ff students) the following exchange during card placement exemplifies perceptions of the importance of commercial awareness in the graduate recruitment process: other than an interview setting would you really need to talk about commercial awareness that much? yes, ‘cos supposedly you need commercial awareness to carry out your job. do you? to know about like the broad areas… to get the job… the whole interview is pretty much based on commercial awareness…so yeah i’d agree you do need it. (ff students) further statements provided more evidence of law firm influence on student perceptions of the importance of commercial awareness in accessing graduate reviewed article 37 employment, for example: when i’ve spoken to firms and they rank what attributes they look for in people that they’re recruiting, commercial awareness does always come up. i’ve not been to one firm where they’ve not said commercial awareness. (cef student) and i think if you speak to a solicitor outside of the lc…about an interview or the application process, they would just say you need to be commercially aware…’cos all the questions at their interview will be related to commercial awareness in some way. (ff student) the only firm that placed commercial awareness low (scoring 2) was the postgraduate family firm. most students thought commercial awareness relevant only to commercial practice, adopting a more ‘letr approach’ but most students were new to the uk and so arguably less influenced by uk law firm rhetoric. overall, supervisors and students ranked commercial awareness more highly than it is usually ranked by employers in recruitment surveys.84 as there is little quantitative data showing how law firms rank commercial awareness compared to other skills,85 it is difficult to know if the participants’ views reflected law firm views or whether participants overestimated its importance. the reasons for its high ranking were clear. 84 ise (n 2) – this includes, but is not specific to, law firms. 85 dunn’s study (n 54) is helpful but involved two firms. the letr (n 16) does not present a quantitative comparison of commercial awareness with other skills other than to note 68.9% of practitioners ranked knowledge of the business context more highly than core legal knowledge. reviewed article 38 supervisors were influenced by their professional background. students were influenced by law firm commercial awareness narratives (recognised by sommerlad, etherington and strevens and others in their studies86) that are repeated by the law school and other stakeholders that assist students with accessing the profession, for example, aspiring solicitors.87 students were clearly aware of commercial awareness and its importance – whether they actually understood it is something that is examined later in the discussion of theme 3 understanding. theme 2 changing perceptions of importance the data collection points (at the start of the lc year and post-lc) provide an understanding of whether student views on the importance of commercial awareness changed during that year and also an insight into the reasons for any change. graph 4 shows how views changed in three of the four firms completing both diamond16s. 86 sommerlad (n 6); strevens and others (n 18); etherington (n 43). 87 aspiring solicitors is an organisation aimed increasing diversity within the legal profession, see https://www.aspiringsolicitors.co.uk/ accessed may 2022. https://www.aspiringsolicitors.co.uk/ reviewed article 39 graph 4 change in importance of commercial awareness the views of each firm are now examined, using qualitative data to provide insight into the results. business firm these students ranked commercial awareness highly in the first diamond16 because it was needed in any industry and because their supervisor had discussed it in detail the week before, suggesting how tutor influence may have had a role.88 after the lc year, it became the most important skill, with students focusing on the impact of covid-19 and how it was ‘really important’ to know about current affairs: i think there’s so much change happening, if you’re not aware of it you’re kind of left behind. i feel like it’s become so important because there’s been so much change, especially with everything that’s happening with covid. 88 dunn noted tutor influence in relation to commercial awareness in her study (n 54) 256. 0 1 2 3 4 5 6 7 8 business civil/employment family policy sc or e type of firm change in importance ranking start of slo after slo reviewed article 40 another student observed the increasing importance of commercial awareness as they reached the threshold of the graduate job market, noting: …part of the reason we’ve put it as top as well now is because we are in our final year. our next step is actually going out into the real world so i think maybe that’s why it’s top now ‘cos it’s even more forefront. i know we start applying…years in advance for training contracts, but actually now it’s not “we’ve got another 2 years at uni so if we don’t get one it doesn’t matter,” it’s “you need to get a job” so... this comment perhaps again reflects the pervasive influence of the commercial awareness narrative employed by the legal profession. civil/employment firm here, the ranking remained the same. when placing the commercial awareness card in the first diamond16, students cited law school influence. the post-lc discussion was similar –students stated: ‘they’re always banging on about it aren’t they.’ dunn noted similar comments in her study.89 family firm here, commercial awareness dropped by two places. in the first diamond16, students linked importance to law school and law firm influence. when discussing its drop in ranking, one explained: 89 dunn (n 54) 199. reviewed article 41 …i feel like the more that you go through the law school the more you just naturally become commercially aware anyway. i think at the start of the lc you didn’t really ever come across it so it was more trying to look out for it. but now it just comes naturally to you so i don’t think it’s as important as something to actually look for. and i think when it gets to the later years of uni you are thinking more about jobs and when you’re researching training contracts obviously commercial awareness is a big thing, so i think you take it upon yourself to read more of the news and keep up to date with things. like the business firm students, these students were conscious that the end of their degree was approaching, but commercial awareness was less important because they felt more aware. policy firm students did not discuss why they placed the card in its allocated space on either diamond16, although in the second diamond16 they agreed, ‘we did a lot on that didn’t we.’ despite this, commercial awareness moved down two places. when questioned, students made comments similar to those in the family firm about feeling more confident in their commercial awareness. overall, there were differing reasons why perceptions of the importance of commercial awareness changed or did not. whilst this data does not clarify the role of reviewed article 42 cle in explaining why the importance of commercial awareness changed (or why not), it provides evidence of some of the external and internal non-clinic factors that have an influence on its importance to students during their time in legal education. it would be useful to conduct further research in a broader legal education setting to understand how the importance of commercial awareness changes for students on their journey to graduate employment. whilst students are clearly aware of commercial awareness and its importance for graduate roles, it is critical to ascertain what commercial awareness actually means to students and how confident they are in that understanding. the following section considers how students defined commercial awareness and whether students’ understanding changed during their time in clinic. theme 3 understanding commercial awareness supervisor and student definitions as noted earlier, students may have difficulty in defining commercial awareness.90 there is very limited empirical evidence on what commercial awareness means to law students91 and none on how supervisors, and more broadly, legal academics define it. when asked to define commercial awareness after the first diamond16, several student participants hesitated, declined to contribute, asked to ‘sit this one out’ or 90 wilkinson and aspinall (n 13). 91 turner and others (n 62). reviewed article 43 stated it was ‘hard to describe.’ the definitions that were provided tended to be basic, focusing on current affairs knowledge. one noted: you’ve got to be aware of current events and stuff going on, you can’t just like live in a little shell. (bf student) other students referred to how businesses work and make money but none mentioned ‘the law firm as a business’ aspect of commercial awareness that is so frequently used by the legal sector. some students adopted the letr approach, linking it to commercial law and practice. although students were aware of commercial awareness, they did not demonstrate a sophisticated understanding of it nor one that mirrored employer and supervisor views. overall, their views shared little correlation with the author’s suggested definition. in contrast, supervisors gave a broader range of definitions reflecting those used by the legal sector, focusing less than student participants on current affairs knowledge and more on how law firms were businesses, for example: it’s having that awareness of the business, what sort of business are you working in, what does that mean for you, for your clients, for billing, how you make money, who the clients are, how you get your clients. (ef supervisor) one supervisor noted the change in the legal profession as it moved to a more commercialised basis: reviewed article 44 i think it’s very important to the law firms that students understand that they’re a business…there’s much more move to the changing understanding of what law firms are, that they are a business…and that decisions are made on a commercial basis…sometimes there may be a concern that law students don’t see law firms as a business…they don’t understand that actually you have to make money for employers, that’s your role. (cef supervisor) such viewpoints reflect much of the academic and practitioner literature that focus on understanding the business element of running a successful law firm.92 did student understanding change? after the lc year, some students demonstrated a slightly deeper understanding. for example: i would say it has slightly changed in the sense that i would see it more as the industry as a whole, as in the law working with politics…ethics…environmentally. (ff student) however, only two students (from policy and family firms) now included the law firm as a business in the definition. the words of this student suggest they had experienced some profound development of their understanding of what commercial awareness meant: 92 strevens and others (n 18); sommerlad (n 6); etherington (n 43); various (n 21). reviewed article 45 …it’s obviously being aware of the things that are happening in the news and legal developments…but it’s also, what i think i didn’t get in the last three years of uni was, it’s also looking how that’s going to impact on a firm and how the firm is going to place importance on knowing that as well. it’s going that step further. (ff student) again, it cannot be said that the clinic experience itself was responsible for this deepening understanding; other factors, for example, engagement with the legal profession, will have had an impact. the overall lack of focus on the law firm as a business part of the definition suggests that the more sophisticated supervisor understandings of commercial awareness may not be transferring to students. the following section, outlining development activities, considers why this might be happening. theme 4 development activities this data is partially limited because only two student firms with supervisors contributing to the study, participated in both diamond16s. therefore, it is difficult to fully assess the correlation between activities that supervisors and students identified as developing commercial awareness. however, the data is helpful in showing similarities in supervisor activities and in highlighting the activities students identified as developing their commercial awareness. reviewed article 46 student views in the second diamond16 discussions, the activities that students identified as developing commercial awareness in clinic fell into three categories: client work, the lc working environment and current affairs. client work client work was the most common example. participants who completed the second diamond16 provided nine different examples of how they perceived client work had developed their commercial awareness. for some it improved understanding of how businesses work. for example: my client was starting up a business and they wanted their master agreement drafting…and i think that helped develop my commercial awareness because i had to go so deep into not only the actual legal side but also what were the business aims and how was the business going to make money. (bf student) some students observed how client work assisted in understanding that the legal solution might not always be the right one for a client, part of the author’s suggested definition. one student observed: you’ve got the law but is it actually practical, does it actually work for a client? and looking at it that way, i feel like it does make you very commercially aware because we see it from a law student perspective and we’re like “ah yeah, reviewed article 47 everything should work fine if they’re following the law” but in reality it’s not that black and white. (bf student) bleasdale-hill and wragg recognised such considerations were important and could be linked to developing commercial awareness.93 some students stated that considering ‘what works’ and ‘real life concepts’ were critical in providing advice. although students and supervisors did not focus on this point when defining commercial awareness, the discussions suggested that for some students it was an aspect of their developing commercial awareness. business firm students described drafting leaflets on business start-up issues for entrepreneurial business students, presenting the leaflets and answering questions, one noting: in reality the questions…were like a very, very small and specific part of business rather than…looking at privacy and data protection. they weren’t interested in that, they were more interested in copyright and trademarks…i feel like you can research as much as you want on what you think is going to be helpful but when you actually go and talk to someone who is going to be a potential client you get your eyes opened as to what they actually want. i think it really opened my eyes. (bf student) two policy firm students stated that their client research developed their commercial 93 bleasdale-hill and wragg (n 7) 264. reviewed article 48 awareness because it made them consider the social justice issues arising in legal areas they had not been exposed to before, for example: …it made me more aware of the injustice in…mental health…and i wouldn’t have probably done that part of law in our normal modules so i wouldn’t have ever probably realised…the levels of injustice in that spectrum. (pf student) social justice is an unusual but interesting developmental angle because so often commercial awareness is linked to business and business issues. however, such views do fit within the author’s suggested definition of commercial awareness.94 civil firm students were less convinced that client work helped, one noting: i don’t really know whether i would say my commercial awareness did – because we only really dealt with one case and it was more to do with an individual so…i probably don’t think mine was that much improved. (cef student) these students aligned development with the lc working environment. lc working environment although no students mentioned the ‘law firm as a business’ aspect of commercial awareness as a direct example of development, comments suggested that some may 94 mcconnell (n 14). reviewed article 49 have, perhaps unknowingly, developed it through the working environment of the lc, for example: …even just the way…the lc was ran it gives you more of an idea of how a solicitors’ firm is going to be ran and that…you need to be aware of the environment that you’re going to be working in. so that gave us more awareness even of how it would be when we went into practice. (pf student) and yes being in that environment and understanding how the firm works…the counting of minutes when you’re doing an interview and it being in six units…the importance of that stuff rather than the wider commercial awareness and current affairs. (cef student) current affairs policy firm students linked their development to a weekly activity where students asked questions on legal issues in the news, noting: …it made sure you were constantly looking even if you hadn’t looked that week then one of the other members was telling you something that had happened that week so it was constantly keeping you up to date with what was going on in the general climate of the world. the focus on current affairs led to some students making commercial awareness development part of their everyday learning, for example: reviewed article 50 …now i keep up to date with the news…even just having the app on my phone and then notifications for the main stories coming through and things like that, whereas before the lc i didn’t have that. (pf student)95 all firms identified at least one development activity. unlike other research locating commercial awareness development with commercial law practice,96 students from all types of firm recognised that they had developed commercial awareness in some way. activities tended to fall into one of the three categories depending on the firm. for example, business firm students identified development through client work whilst civil firm students attributed development to the lc working environment. in contrast, as the following section demonstrates, supervisors identified many more development activities and promoted development across multiple categories. supervisor approaches law firms as businesses the most common supervisor activity centred on improving student understanding of the law firm as a business aspect of commercial awareness. many supervisors asked students to think about their work, the time it took and how this would translate into 95 this student also led a firm meeting, giving a presentation on commercial awareness and how to develop it in preparation for the graduate recruitment process. 96 letr (n 16) 7.20 and blandy (n 56). reviewed article 51 ‘real life’ legal practice. supervisors concentrated on time recording and billing, something not traditionally a feature of clinical programmes,97 for example: i usually do a billing exercise with them so i get them to go and look up the county court rates that they would be able to claim, consider which level that they’d be working at…then we actually bill their files. we bill it on the time that they’ve recorded and then we also bill it against the file, to highlight the difference between what they’ve time recorded and what they’d actually be able to claim…and that’s normally quite significant when they’re billing maybe two or three hours’ worth of research and you’re knocking it down to about 10 minutes because they’d be expected to have a lot of that knowledge. so it’s highlighting the difference between the lc and what they would be expected to do in practice. (hf supervisor) and we talked a bit about how firms make money, getting them to think about the sort of work that they’re doing, how long they’ve taken to do it, whether or not that would ever translate into an actual bill…that side of the law as a business that i think sometimes is a bit missing from the lc. because they can take endless time to do anything and they do. (ef supervisor) 97 barry (n 8) 275. reviewed article 52 other examples included asking students to do a mock pitch to a potential client, a timed advice exercise and limiting client interviewing time to one hour: we’re telling them that time is money so i think there is a connection there with commercial awareness. (wf supervisor) thomas advocated time recording, billing and costs discussions as methods of developing students’ commercial awareness. he noted that some clinics did such activities but they were not standard practice.98 this study shows how these activities are commonplace in the lc for supervisors but, as only one student mentioned such an activity, they are not necessarily recognised as development activities by students. this leaves a question mark over how explicit supervisors were in explaining that these activities developed students’ commercial awareness and this issue will be examined in the section below concerning supervisor attitudes. current affairs several supervisors provided news stories to students or asked students to research issues, similar to the activities policy students identified. the more ‘high street’ firms focused on giving students an understanding of the realities of the legal environment their clients experienced; one supervisor explained: 98 thomas (n 4) 153. reviewed article 53 i always do one (session) on legal aid, just so that they’ve got an understanding, because often at that stage they won’t…it’s important for them to know why the clients, how they’ve ended up at the lc, which is often to do with legal aid issues. (crime firm supervisor) client work the third most cited activity was client work and demonstrating the wider, often nonlegal, factors influencing client advice. one supervisor described this as ‘modelling’ and supervisors discussed how this demonstration of the realities of legal practice was a way of developing commercial awareness, reflecting some student viewpoints: i think part of it is modelling. i think a lot of what we do in the lc around commercial awareness is demonstrating the way in which we approach practice, so the types of things that we consider when we’re looking at cases and the types of things that we would prioritise, the importance that we put on certain things, our response to deadlines. i think a lot of that also comes down to commercial awareness. (hf supervisor) this approach again reflects bleasdale-hill and wragg’s views on the benefits to students of experiencing real life disputes in gaining insight into the different factors critical in providing legal advice. they noted a link between these types of activities and commercial awareness development.99 99 bleasdale-hill and wragg (n 7) 264. reviewed article 54 supervisor attitudes although all supervisors tried to enhance commercial awareness using different activities, there were differing attitudes towards its teaching. these related both to supervisors’ professional backgrounds and their confidence in teaching commercial awareness. three supervisors had practised commercial law in commercial firms and acknowledged how influential this was, one stating: it’s at the front of everything i tend to do to be honest with you because it has to be. (cf supervisor) for others, particularly those who had worked predominantly with claimants, there was much less focus, for example: i probably haven’t done enough of that (commercial awareness) and i think some of that relates to the background that i came from…working under not for profit contracts in the citizens advice. (wf supervisor) a minority lacked confidence in understanding commercial awareness and their ability to teach it. i hate teaching about it…and i just kind of think “oh i don’t really feel qualified to be teaching about this.” (ff supervisor) reviewed article 55 there are recognised difficulties in integrating employability skills into teaching.100 it should not be assumed that supervisors with significant legal practice experience are necessarily equipped to teach skills like commercial awareness – further support and training may be needed.101 signposting commercial awareness very few supervisors were explicit in signposting commercial awareness development to students by explaining that an activity could enhance it. for most it was an ‘unspoken thought.’ this may help to explain the mismatch in both the number and type of development activities identified by students and supervisors. the data indicated that the diamond16 discussions were perhaps the first time that some supervisors had thought in detail about the link between their activities and commercial awareness development, for example: lots of things you (other participants) mention, i do that as well, but i don’t red flag it enough to students that it’s a commercial awareness aspect – not always anyway. i think i could do a better job at that. (cef supervisor) and 100 john bell, ‘key skills in the law curriculum and self-assessment’ (2000) 34 law tchr; egle dagilyte and peter coe, ‘professionalism in higher education: important not only for lawyers’ (2014) 40 law tchr 33. 101 dagilyte and coe (n 100) 48-9 calling for better quality pedagogy training for academics to deliver employment-ready graduates. reviewed article 56 i possibly don’t match it with commercial awareness enough…there probably is stuff that we teach them that i wouldn’t necessarily link to commercial awareness and therefore i’m not bringing that enough to their attention perhaps…i do these exercises with them but i don’t reach the end of it and go, “by the way this is an example of commercial awareness.” (wf supervisor) others felt they were more explicit but signposting focused on linking commercial awareness to current affairs knowledge, for example: …i ask them to pick out something in the news and then relate it…i flag it then. but when we’re giving advice and looking at commercial options, i do talk about it’s important that they look at practicalities rather than the legalities, but i don’t flag it as a commercial awareness issue. (cef supervisor) very few supervisors used the term commercial awareness. some stated that they were more explicit but talked to students of the ‘realities of practice,’ for example: i think i have given examples in the past, “you know what, if you go into a law firm this is what will be expected of you,” but without getting deeper into it. i think i’ve just scratched on the surface. (wf supervisor) such terminology does not match the commercial awareness label used by law firms.102 two supervisors nearly always signposted commercial awareness; these were 102 thomas (n 4) and websites (n 4). reviewed article 57 the supervisors from a commercial law practice background for whom commercial awareness was critical. overall, students identified far fewer activities than supervisors and there was inconsistency between the activities identified. supervisors focused more on activities that enhanced an understanding of the law firm as a business. students identified development mostly through client work. the lack of supervisor signposting perhaps explains this disassociation and also why supervisor definitions of commercial awareness were not adopted by students. francis argued that the value of experiential learning depends on student ability to identify what they are learning.103 bell called for academics to be more explicit about skills development.104 clearer signposting is needed if students are to appreciate they are developing commercial awareness.105 the data shows a clear role for cle in developing commercial awareness. this is encouraging. however, to realise the benefit of this development, students must be able to demonstrate skills like commercial awareness during the graduate recruitment process106 and have confidence they can do so. thomas examined how clinic boosts student employability but failure ‘to equip them to explain how in a job application 103 andrew francis, ‘legal education, social mobility, and employability: possible selves, curriculum intervention, and the role of legal work experience’ (2015) 42 jl & soc’y 173, 195. 104 john bell (n 100) 191. 105 for examples of commercial awareness development in real estate education see joanna poon, ‘commercial awareness in real estate courses’ (2014) 32 property management 48 where most academics explicitly mentioned ‘commercial awareness’ when teaching and explained its meaning. 106 leonard holmes, ‘reconsidering graduate employability: the ‘graduate identity’ approach’ (2001) 7 quality in higher education 111, 117-8. reviewed article 58 or interview’ does students a disservice.107 as the following section demonstrates, students had mixed feelings about their confidence in their commercial awareness, particularly in a graduate recruitment setting. theme 5 impact students in business, policy and family firms stated that confidence in their commercial awareness in understanding what it meant and in being more commercially aware increased in clinic. however, in the civil/employment firm (where students associated development with working in the lc), there were perceptions that confidence had not increased, for example: i think commercial awareness is a tricky one. i feel like if someone was to ask us a question, depending on what the type of question was, i don’t really know whether the lc helped us develop that in particular. (cef student) so whilst this firm’s views of the importance of commercial awareness were unchanged, students did not feel more confident and that translated into a lack of confidence in how to cope with commercial awareness questions at interview. one family firm student noted her increased confidence but she was concerned about interviews, stating: 107 thomas (n 4) 153-4. reviewed article 59 i’m a lot more confident in it but at the same time it is a concept that at interview it is scary and no matter how confident you are in it as soon as they mention commercial awareness i think it probably will throw you. the viewpoints expressed here suggest there is further work to be done in promoting development in cle. however, supervisors cannot, and should not, be expected to do everything in the context of teaching commercial awareness. the rest of the undergraduate law degree should play a part in its development by integrating commercial awareness into modules. further employability support is needed from centralised careers advisers working with students in clinic and assisting them with packaging their experience for the graduate recruitment process. whilst professional careers support is key, those teaching law must engage with students too. o’leary argued that it is critical to ensure that academic departments remain involved in providing effective employability support to students.108 in a law school setting, childs and others found that law students valued input and advice from their tutors alongside the central careers service offering.109 the conclusion suggests ways in which law schools, clinics and career services can work together to provide support activities. 108 simon o’leary, ‘graduates’ experiences of, and attitudes towards, the inclusion of employabilityrelated support in undergraduate degree programmes; trends and variations by subject discipline and gender’ (2017) 30 journal of education and work 84. 109 penny childs, nigel firth and hugo de rijke, ‘the gap between law student career aspirations and employment opportunities’ (2014) 48 law tchr 51. reviewed article 60 conclusion the above findings allow for suggested responses to the research questions and to consider the implications for cle. how important is commercial awareness as a skill to those teaching and learning in cle? commercial awareness was very important to supervisors and students in the lc – they ranked it highly in comparison to other skills. further, both groups ranked commercial awareness more highly than graduate employers did in employer surveys.110 such surveys are not law-specific and it would be interesting to undertake research with law firms to establish if the findings here reflect law firm views or whether supervisors and students overestimate its importance. the results also showed differences in view. supervisors and students working in business, civil and employment firms ranked commercial awareness more highly than those working in family, criminal, housing and welfare firms. for supervisors, professional background was influential. supervisors from commercial law backgrounds deemed commercial awareness more important than those with high street or mainly claimant experience. however, the discussions suggested a more nuanced reality. commercial awareness could be more important for lawyers in smaller high street firms because they worked in a small business with more risk and less support. for students, the narrative of the legal profession, repeated by the law school, was influential in determining 110 ise (n 2). reviewed article 61 importance. do students develop commercial awareness in clinic and, if so, what types of cle teaching and learning activities promote development? the data shows that some students perceived that they had developed commercial awareness in clinic and that some developed it more than others. there was both practical development and also improved understanding of what commercial awareness meant. supervisors named many more practical development activities than students. even allowing for the fact that not all of the supervisor and student groups matched, this suggests that students do not always identify that their supervisors’ teaching activities are aimed at developing commercial awareness. supervisors used authentic and engaging development activities. some activities resonated with students, particularly those involving client work where students learnt, possibly for the first time, that the legal solution may not always be the right one, and that other factors, modelled so professionally by their supervisors, were critical in providing advice. despite supervisor focus on developing the ‘law firm as a business’ aspect of commercial awareness, using activities such as time recording and valuing client work, there was very limited student discussion of those activities as examples of developing commercial awareness. this was reflected further by the fact that when asked to define commercial awareness, very few students mentioned the ‘law firm as a business’ aspect of the definition. these disconnects appear to result from supervisors not explicitly signposting their commercial awareness development reviewed article 62 activities. signposting skills development is critical.111 for some supervisors, it seemed that the diamond16 exercise was the first time they had really considered how the excellent activities they facilitated were actually exercises in developing commercial awareness and could be branded as such. this was, perhaps, because in providing these activities, their professional identity was so ingrained they did not think to label them as commercial awareness activities. just as there may be a perception that there is no need to signpost a teamwork activity as developing teamwork, the same may apply to commercial awareness. however, commercial awareness is a skill that students struggle to understand and lack confidence in – it is also, unlike teamwork, a skill with which they are less familiar. the results support the view that the tacit needs to be explicit.112 this research also supports thomas’ view that, whilst clinic enhances employability ‘its value is lost if students are not able to, and do not, recognise this link.’113 implications this study reinforces the importance of commercial awareness to those teaching and learning in twenty first century law schools. as one supervisor noted: ‘the days of lawyers being able to say, “oh commercial stuff that’s for the clients,” i’m afraid, are long 111 trina jorre de st jorre and beverley oliver, ‘what students to engage? contextualise graduate learning outcomes and assess for employability’ (2018) 37 higher education research & development 44. bell (n 100). 112 peter knight and esect colleagues, ‘briefings on employability 3 the contribution of learning, teaching, assessment and other curriculum projects to student employability’ (2003) <https://www.qualityresearchinternational.com/esecttools/esectpubs/knightlearning3.pdf> accessed june 2022. 113 thomas (n 4) 149. https://www.qualityresearchinternational.com/esecttools/esectpubs/knightlearning3.pdf reviewed article 63 gone.’ that message, so fully embraced by many law firms, now seems part of the law school narrative. the challenge for cle is not in recognising that importance but in translating the clinic experience into a convincing commercial awareness narrative that students feel confident in articulating in an application form or at an interview. the findings suggest that supervisors are aware of the critical role commercial awareness plays in obtaining employment in a law firm and in practising as a lawyer. their professional experience places them in an excellent position from which to teach the future of the profession commercial awareness. a minority of supervisors lacked confidence in their ability to do so or were unconvinced that commercial awareness was necessary at the point of entry to the profession. however, all recognised its importance to students and tried to enhance their students’ commercial awareness. this research makes an original contribution to knowledge because it presents the wide range of activities that supervisors use to enhance commercial awareness, the activities students identify as promoting development and the gap between the two stakeholders. the results strengthen the argument for explicit signposting of employability skills. fortunately, this can be easily remedied. the supervisors here only need provide more direction to their students. this would involve explaining what commercial awareness is, perhaps using the author’s suggested definition, and its importance to graduate professions. supervisors should then highlight how relevant clinical activities promote its development, focusing on which aspect of commercial awareness is being enhanced. reviewed article 64 if we conclude that cle can develop commercial awareness, there are wider law school issues to address relating to student confidence and timing. this study finds that even where students developed commercial awareness in the lc, they still lacked confidence in how to use their experience to demonstrate it during the graduate recruitment process. for some, this was because they could not make the link between their lc experience and commercial awareness. for others, there was a general lack of confidence about demonstrating it at interview. as for timing, it is too late to leave development until clinic. cle usually occurs towards the end of a degree but commercial awareness should be part of the employability framework much earlier, because many law firms recruit in second year. further, cle is not a ‘magic bullet’ for commercial awareness or any other graduate skill.114 in line with cantrell’s views on ecologies of learning,115 cle should enhance the foundational work that ought to occur earlier in degree programmes, whether through bespoke employability modules or by integrating commercial awareness into modules. clinic can play a critical role in further developing commercial awareness because it puts the ‘real life’ practice students encounter into context, providing examples for use in the recruitment process. it also sits at the threshold of the employability journey – near to or at the point of graduation – where many employment opportunities still arise. since the academic year 2020/21, the careers service and lc teaching team at northumbria university have integrated additional employability activities into lc teaching. these 114 deborah j cantrell, ‘are clinics a magic bullet’ (2014) 51 alta l rev 831. 115 ibid 840, 843-4. reviewed article 65 activities build on a first-year compulsory employability module (that introduces commercial awareness) and other co-curricular careers teaching provided in the years before clinic. the aim of the additional activities is to enable students to learn how to demonstrate the skills they have gained from their lc experience during the graduate recruitment process. the activities include bespoke careers sessions and supervisorled employability workshops, one focusing on commercial awareness. as a teaching aid, supervisors use video interviews with recent graduates discussing what commercial awareness means to them and how it is used in their professional lives. the lc has introduced an electronic case-management system, enabling clinic to more accurately reflect legal practice. it would be interesting to re-run this study with students to see how these activities impact on commercial awareness development. these innovations, alongside the supervisor activities documented here, should provide support for supervisors and students in understanding commercial awareness in the context of cle, the legal (or any other) profession and the graduate recruitment process. the role of cle will increase in importance given that it can constitute qualifying work experience under the sqe path to qualification.116 the results of this study suggest that there is a real opportunity for cle to provide an authentic commercial awareness experience that enhances students’ graduate employability. 116 thomas (n 4). rachel dunn, victoria roper and vinny kennedy, ‘clinical legal education as qualifying work experience for solicitors’ (2018) 52 law tchr 439. reviewed article 66 appendix – examples of questions asked during semi-structured interviews following completion of diamond16 students at the start of the lc year how would you define commercial awareness? why is commercial awareness ranked where it is on the diamond16? (if not clear from discussion whilst completing the diamond16). after the lc year how would you define commercial awareness – link back to previous definition – same views, different views now? why has the ranking of commercial awareness changed/stayed the same? is there anything you did in the lc that you think has helped you to develop your commercial awareness? link to ranking. what sort of activities did you do that you think helped to improve your commercial awareness? do people feel more confident about what commercial awareness means? how would you demonstrate commercial awareness during the graduate recruitment process? reviewed article 67 if you had to pick one thing from the lc that shows you are commercially aware what would that be? supervisors how would you define commercial awareness? why is commercial awareness ranked where it is on the diamond16? (if not clear from discussion whilst completing the diamond16). what sort of activities do you do in the lc that help to improve your students’ commercial awareness? do you use the words ‘commercial awareness’ to describe those activities? are you explicit in explaining that is the skill you are trying to develop? the tyranny of distance: clinical legal education in ‘the bush’* jeff giddings** & barbara hook*** this paper analyses the challenges faced by clients, students and teachers involved in a clinical program which uses new technology to deliver legal services in remote areas of southern queensland, australia. a range of novel issues were addressed by griffith university law school, learning network queensland and caxton legal centre in their partnership development and delivery of this clinical program which involves the use of audio-graphics conferencing to enable students to provide legal advice and assistance to people hundreds of kilometres away. the ‘advanced family law-clinic’ program commenced in july 1999 with financial support from the federal attorney-general’s department. the paper considers the range of issues which arose in development of the program. introduction in 1998, the australian federal government announced funding for the development of 4 clinical legal education (cle) partnerships between law schools and community legal centres.1 in applying for funding, griffith law school and caxton legal centre sought to provide a proposal which met the political objectives of government as well as the community service objectives of the community legal centre and the teaching and community service objectives of the law school. a common commitment to enhancing legal service delivery in rural areas was quickly identified. queensland is the most decentralised state in australia, with more than half the population living outside the state capital, brisbane. the problem then faced was how to best involve students in the delivery of such services. links were forged with the queensland open learning network (now known as learning network queensland), a network of community centres generally used to deliver education services to regional areas. a tender was submitted boldly stating that audiographics technology would be used to enable students to interview clients in open learning centres hundreds of kilometres from brisbane. griffith law school and caxton legal centre were ultimately successful in receiving one of the federal cle grants. the real work of developing and implementing a clinical program using new technology then began. maintaining a clear sense of purpose was very important in addressing the 64 journal of clinical legal education june 2002 * thanks to tony durkan for his assistance in preparation of this paper ** associate professor and director of clinical legal education, faculty of law, griffith university, brisbane, australia *** lecturer, faculty of law, griffith university, brisbane, australia 1 j. giddings, ‘the commonwealth discovers clinical legal education’ (1998) 23 (3) alternative law journal 140 various unanticipated issues which arose. we found that student involvement could be planned much more than could the involvement of remote communities and the use of new technology. three key factors have been imperative to the success of the clinic: 1. recognition of the need to balance the agendas of different interested parties, such as the funders, the law school, students, the caxton legal centre, remote communities, and learning network queensland, was a crucial factor in planning, developing and implementing the clinical program; 2. understanding and addressing the issues of geographical remoteness which prevent or limit the delivery of face-to-face legal services; and 3. identifying the limits and possibilities of technology-based non-face-to-face interviewing. this paper provides an overview of how the clinic operates. it then contextualises the clinic in terms of the political climate and the nature of cle in australia. the access of rural communities to legal services will then be analysed. networking issues impacting on the clinic are then considered, highlighting the need to develop trust within the remote communities being serviced. the particular challenges the clinic has faced in relation to communication and service delivery issues are also explored. finally, the paper considers the importance of co-ordination of new initiatives and the need for ongoing consultation. overview of the clinic griffith university law school is based in brisbane, the state capital of queensland. griffith law school’s most recent cle initiative focuses on providing family law advice and assistance to people in rural areas of queensland. queensland has the most decentralised population of all australian states and access to legal services is a significant issue for many rural communities (“the bush”2). covering an area of over 1.7 million square kilometres, queensland accounts for nearly 25% of the total land area of the australian continent. by way of an international comparison, queensland covers seven times the area of the united kingdom, is more than twice the size of texas and five times larger than japan.3 since 1995 griffith university law school has developed a reputation as an australian leader in the field of cle. the enthusiasm of staff and students has meant that opportunities for innovation and growth in clinical program offerings have been grasped with great enthusiasm. such is the case with the advanced family law clinic, a specialist clinical program offered by the law school in collaboration with the learning network queensland and caxton legal centre. aside from this specialist clinic, griffith law school also operates a general law clinic, and externship program and a specialist alternative dispute resolution clinic. the opportunity to obtain financial support from the federal government has consolidated the griffith clinical program as a major part of the law school. until this external funding source emerged, the ongoing sustainability of the range of clinics which had developed was always in question. the federal government’s involvement also enabled us to (in part) address our growing concerns regarding the lack of legal services available to rural queenslanders. the tyranny of distance: clinical legal education in ‘the bush’ 65 2 also affectionately known as “the outback.” 3 http://www.qld.gov.au/html/about_qld.htm (accessed 1 june 2001) the clinic aims to develop the students’ critical understanding of family law, develop and refine the generic skills considered elsewhere in the griffith law program and to provide a practice-based learning experience designed to encourage students to think reflectively. the educational objectives of the clinic are to assist students to: • enhance and extend their knowledge of the substantive law relating to family law, • refine the skills related to legal practice which have developed in their law studies at griffith. in particular, students will further develop their skills in negotiation, interviewing and drafting, • deal effectively with unstructured situations, • learn how to learn from experience, • develop the ability to work collaboratively, • appreciate notions of professional responsibility, and • subject the legal system to analysis and criticism. the clinic involves students being rotated through two placement sites during the semester. students complete clinic sessions during one half of the semester at caxton legal centre and the other half at learning network queensland. in the initial weeks of the program, the supervisors interview the clients while students observe the interviews, and do follow up work such as researching and preparing documents. after being in the program for about a month, students begin interviewing on their own and taking instructions from clients before checking with their supervisor. then the students prepare a plan for advice, deliver the advice to the client, and provide written confirmation of the advice to the client. weekly family law advice service. students interview clients and provide ongoing support and casework assistance in relation to family law issues. this service focuses on issues relevant to litigants in person and operates each wednesday evening at caxton legal centre. students, in conjunction with their supervisor, may also run a family law forum at caxton legal centre. caxton legal centre is, in many ways, queensland’s flagship community legal centre. the 25-year-old centre, based in the brisbane suburb of new farm, sees 11,000 clients a year free-of-charge. it has a staff of 11 plus 300 volunteers, about half of whom are law students who are allowed to observe proceedings. services to remote communities. audio-graphics conferencing is used to provide family law advice and other services to people in rural communities. the conferencing technology allows people to communicate by phone at the same time as having joint computer screen access to documents. this enables students to work with clients situated at a computer hundreds of miles away to prepare court-related documents. letters can also be drafted ‘on the spot’ and discussed with the client who can see the document on screen. if there are web-based materials which can usefully be accessed, the technology also accommodates this. further, fax facilities are also available where a client is seeking advice on other documents. scanned photos of the students and their supervisor are shown on screen so as to give the client a sense of who they are dealing with. this conferencing technology is accessed through the community-based learning network queensland. clinic students work from the south brisbane office of learning network queensland to assist clients at open learning centres located in communities outside of the brisbane metropolitan area, namely tara (41/2 hours drive from brisbane) and hervey bay 66 journal of clinical legal education june 2002 (31/2 hours from brisbane). there are 50 open learning centres throughout queensland. students undertake casework activities and provide ongoing support and assistance to clients in relation to family law issues. this service operates each friday morning at the brisbane office of learning network queensland. a unique aspect of the clinic is that two students attend each interview and work collaboratively to provide the client with advice. this fosters the development of teamwork, enhances the efficacy of peer review and appropriate constructive criticism, and ultimately enables students to encourage each other. it also provides in situ support if one student cannot adequately address the concerns of the client, or in the event that the client becomes difficult, agitated or emotional. in the development of the clinic, it was identified that students were likely to be dealing with complex family law matters involving litigants who did not have access to other legal representation. in our experience, the family law problems facing the clients who attend our clinical programs have become increasingly complex in recent years.4 this led to us introducing a requirement that students complete the classroom-based elective subject, family law before enrolling in the clinic. a maximum of 12 students can participate in the clinic each semester. with the exception of one summer semester, the clinic has operated continously since july 1999. in future it is envisaged that the clinic will continue to be offered each summer to cover the increased demand for legal services related to family law this period sadly but invariably brings. this is particularly pertinent as many people travel to remote communities to visit their families during the christmas/new year period, and as such many of the issues facing bush communities, which prompted the clinic initiative, are exacerbated at this time. although the challenges that arose in setting up the clinic were primarily related to geographical remoteness, the uncertain political climate in which the clinic developed also had a significant impact. knowledge of the prevailing political environment is essential in understanding the institutional factors which have impacted on the clinic, particularly to highlight the confluence of the different interested parties. the political milieu the clinic initiative was primarily a response to the lack of access to legal services in queensland’s remote communities. in the last ten years there has been a steady trend away from the bush for professionals such as lawyers, doctors and teachers. this has been most evident in the legal sphere. while governments have directed considerable resources to encouraging medical practitioners to work in regional and remote australia, the same has not happened for legal professionals. the policy climate in which the clinic developed was quite confusing with policy agendas pulling in very different directions. on the one hand, the federal government had expressed a strong commitment to the provision of additional services in rural and regional australia while at the same time significantly reducing spending on legal aid services. there was also a climate of change in relation to family law in australia. as well as reduced legal aid funding, such change also manifested itself in dramatic increases in the number of litigants in person, greater militancy amongst men’s rights groups, greater unbundling of legal services (where lawyers were willing to the tyranny of distance: clinical legal education in ‘the bush’ 67 4 j. giddings & m. robertson, ‘“informed litigants with nowhere to go”: self-help legal aid services in australia’ (2001) 26 (4) alternative law journal 184, undertake distinct portions of legal work instead of a whole matter), do-it-yourself kits and restructuring of the court system. since the 1970s, australia has developed a legal aid partnership arrangement with services provided by private lawyers, salaried lawyers in legal aid commissions (lacs) and staff and volunteers in community legal centres. cooperative funding arrangements between commonwealth and state governments operated in the 1970s and 1980s through until the mid1990s. this ‘mixed model’ of australian legal aid service delivery was regarded very favourably, having been described as arguably the best model in the world and vital to ensuring that those australians living outside metropolitan areas are able to receive services.5 the current federal government, following its election in march 1996, dramatically changed the structure of legal aid in australia.6 the commonwealth negotiated new legal aid funding agreements with each of the states and territories and announced in the august 1996 budget that a $100 million reduction in commonwealth legal aid funding was to be achieved between 1997/98 and 2000/2001. having implemented this reduction in commonwealth legal aid funding of more than 20%, the commonwealth has now belatedly acknowledged the inappropriateness of the cuts with the announcement in the 2000/2001 federal budget of a $45.6 million increase in legal aid funds over four years.7 the government also withdrew funding for many of the initiatives announced in 1995 by the former government. while funding announced in the justice statement for women’s legal services, indigenous women’s legal programs and rural women’s outreach was maintained, the impact on the legal aid sector as a whole was very negative. in addition to losing promised extra funding for family and civil law cases, legal aid commissions suffered overall funding reductions.8 the commonwealth government has also been concerned to play a more significant role in legal aid policy making. greater direction has been provided in relation to the allocation of commonwealth legal aid funds. attorney-general daryl williams has sought to significantly increase the legal aid focus on family law, consistently arguing that the funding of most criminal prosecutions should come from state government funds. attorney-general williams has also supported the development of community-based legal centres, particularly in regional australia. an $11.4 million ‘rural and regional network enhancement initiative was announced in the 1998/1999 federal budget.9 this initiative included the establishment of 6 new community legal centres in rural australia10 and the development of a national service to provide phone and internet advice on family law and child support matters.11 funds were also allocated for the development of 68 journal of clinical legal education june 2002 5 j. giddings (ed), legal aid in victoria: at the crossroads once again (1998) fitzroy legal service, 11 6 the relevant chain of events is usefully summarised in senate legal and constitutional references committee, (march 1997) inquiry into the australian legal aid system: first report, ch. 1. 7 d. williams, 9 may 2000, ‘legal aid funding boost’, accessed at http://law.gov.au/aghome/agnews/ 2000newsag/legalaid_00.htm. for an example of the politicised nature of the legal aid issue in australia, see d. williams, 11 may 2000, ‘labor and democrats mislead on legal aid’, accessed at http://law.gov.au/ aghome/agnews/1998newsag/508_98.htm 8 j. giddings, b. hook, and j. neilsen, ‘legal services in rural communities: issues for clients and lawyers’ (2001) 26(2) alternative law journal 57 at 58. 9 d. williams, 17 december 1998, ‘making community legal services more accessible to south australians’, accessed at http://law.gov.au/aghome/agnews/ 1998newsag/508_98.htm 10 kimberley and south west regions of western australia, the iron triangle region of south australia, the centre-west region of queensland, the new south wales south coast and the cross-border region of new south wales and victoria centred in albury-wodonga. 11 d. williams, 11 may 1999, ‘national family law telecommunication advice and information service’, accessed at http://law.gov.au/aghome/agnews/ 1999newsag/telephone_99.htm four clinical legal education projects ‘with the aim of maximising both legal service delivery to disadvantaged clients and cooperation with universities’.12 a further five new community legal centres were announced in the 1999/2000 federal budget.13 these initiatives, designed to enhance regional access to legal services, probably owe much to the increasing political profile of regional australia. issues facing rural communities such as droughts, low prices for agricultural products, high interest rates, population loss and the withdrawal of services have clearly contributed to the view that australia’s politicians were neglecting the bush.14 traditionally conservative rural electorates have become increasingly marginal, sharpening the political focus on rural areas. … the fastest population decline has occurred in rural areas……such population loss is associated with technological, social and economic changes in rural areas, and industry restructuring in local economies.15 access to legal services is a vital aspect of any community but remoteness in a community can mean that there are associated difficulties of transport, cost, time and lack of information. such difficulties are often exacerbated in family disputes. disenchantment with the level of social services and government support within rural and regional communities has brought new political forces to the fore.16 changes in voting patterns (or voter backlash) in rural and regional electorates have resulted in changes of government in a number of states.17 these significant political changes have created a climate in which governments are seriously concerned to be seen to be improving the availability of services in rural australia. of recent interest is the fact that the federal government in 1999/2000 confirmed its election promise to establish a family law telecommunications advice and information service with a focus on service to rural areas. the law by telecommunications initiative, in operation from mid-2001, has been allocated $3.1million over three years. the commonwealth’s interest in cle is twofold: a determination to deliver cheaper legal services to the community, particularly rural and remote communities; and a commitment to improving legal education. the question is the extent to which both community service and educational objectives can be achieved in the same program. the links with clcs and the commitment to improving access to legal services, central to the establishment of most australian cle programs, have now resulted in some cle programs receiving significant funding support from the the tyranny of distance: clinical legal education in ‘the bush’ 69 12 d. williams, 17 december 1998, ‘making community legal services more accessible to south australians’, accessed at http://law.gov.au/aghome/agnews/ 1998newsag/508_98.htm 13 far west of new south wales, gippsland in victoria, the goldfields region of western australia and the south east and riverland regions of south australia. see d. williams, 7 february 2000, ‘community legal services boosted in regional and rural australia’, accessed at http://law.gov.au/aghome/agnews/ 2000newsag/689_00.htm 14 h. jeffreys & p. munn, ‘tumby bay – through crisis to coping: an integrated community development approach for managing change’ (1996) 6 (1) rural society 3. 15 australia now – a statistical profile, accessed at http://www.abs.gov.au/ausstats/ 16 n. economou, ‘the regions in ferment? the politics of regional and rural disenchantment’ (2001) 26(2) alternative law journal 69 at 69. 17 for example, the 1999 victorian election resulted in independent members in country electorates holding the balance of power and supporting the formation of a labor government despite the fact that the outgoing government had gained widespread praise for implementing economic reform without seeming to alienate the community. n. economou, ‘the regions in ferment? the politics of regional and rural disenchantment’ (2001) 26(2) alternative law journal 69 at 69 notes that this was due to “the disproportionate rate at which regional and rural voters had voted for labor and independent candidates compared with metropolitan voters. commonwealth. importantly, the existing political framework underpins, and to an extent determines, the multi-faceted approach that we have taken with the clinic. essentially, the political imperative encouraged the differing interested parties to come together in a cooperative manner. in planning, developing and implementing the clinic, attention was given to the sensitivities of each party, with particular attention given to balancing the agendas of all involved. for example, the division of law-making responsibility between federal and state governments dictated that the clinic needed to address family law, a federal legal responsibility. on the other hand, learning network queensland (lnq) is a state-based community education provider, as education in australia is primarily a state responsibility. the lnq coordinators, as our coal-face contacts in remote communities, were always going to be an important factor in gaining trust in those communities. taking account of and balancing the differing interests of the stakeholders has reinforced our coordinated and consultative approach to the clinic, while drawing on the strengths and knowledge of individual organisations. clinical legal education (cle) in australia students providing a valuable community service australian cle programs have tended to involve the real client model. law schools have either established vehicles for such education themselves or have grafted cle programs onto existing community organisations. at a time when australia’s legal aid system is being placed under increasing pressure, there are likely to be increased efforts to have law students contribute to the delivery of legal services. australian clinical legal education programs are well placed to facilitate such contributions. historically, community service has been a very significant objective of australian clinical programs.18 the law teachers involved have had strong links australia’s community legal centre (clc) movement. the first australian clcs developed in the early 1970s with victoria taking the lead.19 australia’s first clinical legal education developed in 1975 at monash university with programs emerging at la trobe university in 1977 and at the university of new south wales in 1980. there are now clinical programs operated by 16 australian law schools.20 some of these are quite small in size, involving only one staff member. interestingly, a majority of the academics involved in australian clinical programs have a background working extensively in clcs. the nature of the community service provided by australian clinical programs continues to develop with an increasing emphasis on community participation. the notion of a charter with the local community has been adopted by several australian clinical programs. community development models have been adopted by programs, most notably the monash and griffith university programs. such models adopt a non-casework approach but are informed by the casework conducted by the clinical program. 70 journal of clinical legal education june 2002 18 m. a. noone, ‘australian community legal centres the university connection’ in j. cooper & l. trubek (eds) 1997, educating for justice: social values & legal education, dartmouth, 12. 19 j. chesterman, poverty law and social change: the story of the fitzroy legal service, (1996) melbourne university press 20 kingsford legal centre, guide to clinical legal education courses in australian universities (2000) university of new south wales. issues facing remote communities & rural lawyers it was important for the law school to develop a strong understanding of the nature of rural and remote communities, including their diversity. it was helpful that we were able to employ a lawyer with extensive practice experience in a rural community (barbara hook). it was also essential to get a sense for the nature of legal needs in these communities and the demand for the sorts of services we had in mind. while the lack of legal services available in rural communities presented us with the opportunity to make a useful contribution, the nature of the communities meant that we could not assume that our services would be accepted or utilised. this section sets out some of the insights we have gained from the planning and delivery of the program. many people in remote communities face special issues regarding access to legal services beyond the legal needs they share with people living in metropolitan areas. remote communities are attracting more specific attention as a group from government decision-makers, no doubt due to the increased significance of their votes in federal and state elections. despite this, there has also developed a tendency to perceive those in bush communities as having uniform characteristics and therefore uniform needs.21 for example, there is a general perception that bush communities have a lack of accessible and appropriate community support services and a lack of accessible court and tribunal services. while there are some common needs and experiences, there are also marked differences between and within the communities, and there is a diverse range of issues facing individual members of these communities. this is of itself important in developing an understanding of the needs of bush communities. just as city-based communities are not homogenous, so too bush communities are unique from one another and contain enormous diversity. this diversity is too often overlooked in the methods of policy makers and city-based service providers. there is a range of challenges facing lawyers working in outback australia. generally, these practitioners experience inflated costs, limited opportunities for specialisation and limited access to legal information resources and services. further challenges include geographical remoteness, community attitudes and expectations, difficulties in achieving economies of scale, a lack of infrastructure, and ethical issues particularly with regard to confidentiality.22 of course, there are aspects of remote legal practice that some lawyers find very attractive. there is ‘plenty of work in the bush’ and ‘far less difficulties with bad debts, the reason for this; the inherent honesty of country folk’. few bush lawyers have difficulties finding administrative staff and most enjoy the casual country lifestyle.23 remote legal practice also presents significant opportunities for relatively inexperienced lawyers who can assume major practice responsibilities at a relatively early stage of their careers.24 the tyranny of distance: clinical legal education in ‘the bush’ 71 21 j. giddings, b. hook, and j. neilsen, ‘legal services in rural communities: issues for clients and lawyers’ (2001) 26(2) alternative law journal 57 at 58. 22 j. giddings, b. hook, and j. neilsen, ‘legal services in rural communities: issues for clients and lawyers’ (2001) 26(2) alternative law journal 57 at 60. 23 b chestnutt ‘a country practice’ (1999) 26 (4) brief, 5. 24 see j. faine, lawyers in the alice: aboriginals and whitefellas’ law, (federation press 1993) which contains a series of interviews with lawyers who took responsibility for major cases in their work for clients of the central australian aboriginal legal aid service. geographic isolation distance and transport affect the ability of people to access face to face legal services. lack of adequate and affordable public transport, the need to travel significant distances and the added expense involved all contribute to access difficulties.25 in a family law context, our colleague rosemary hunter has noted that “queensland country clients travelled the furthest distances on average to reach their lawyers. in all country areas, clients often travelled further afield than their own town or the closest large town to find a family lawyer.”26 various extreme weather conditions, including floods and cyclones, may also hinder the ability of people to consult lawyers. for those clients with no choice other than to look outside their community for legal assistance due to conflicts of interest, lack of available expertise or other reasons, the geographical isolation is particularly problematic.27 geographic isolation also creates professional isolation for practitioners, limiting their ability to network within the legal profession, to develop effective working relationships with specialist advocates, to access legal academics and to keep up with their professional training needs. the impact becomes more severe as the geographic position becomes more isolated.28 lack of opportunities to access personal and professional development not only hinders the development of quality legal practitioners but also restricts promotional opportunities. this exacerbates the difficulties in recruiting and retaining professional staff. in essence, there is a need for the establishment of networks within which bush lawyers working in similar circumstances can work collaboratively on a plethora of issues, including professional development and innovative practices. assumptions about rural communities a significant factor precluding appropriate access to legal services by bush communities is the homogenisation of the bush identity. the cultural diversity of rural communities in terms of ethnic and/or religious background, sexual orientation, ability, age, gender and so on is not reflected in the range of services provided.29 women from all cultural backgrounds face local sub-cultures especially in the area of domestic violence.30 police and lawyers often socialise with the women’s husbands and may respond to family violence issues in an offhand manner. women face difficulties due to community antipathy towards ‘domestics’, the public shame of being part of ‘a domestic’ and the lack of ever feeling safe because police are often quite some distance away.31 even though it may be possible to contact legal services to complain about the discrimination and other treatment meted out to these ‘special’ groups, local sub-cultures may make these mechanisms unworkable.32 72 journal of clinical legal education june 2002 25 j. giddings, b. hook, and j. neilsen, ‘legal services in rural communities: issues for clients and lawyers’ (2001) 26(2) alternative law journal 57 at 58. 26 r. hunter, family law case profiles (justice research centre, 1999) xiv. 27 j. giddings, b. hook, and j. neilsen, ‘legal services in rural communities: issues for clients and lawyers’ (2001) 26(2) alternative law journal 57 at 58. 28 j. giddings, b. hook, and j. neilsen, ‘legal services in rural communities: issues for clients and lawyers’ (2001) 26(2) alternative law journal 57 at 61. 29 see the report of the community well-being and lifestyle working group of the regional australia summit, october 1999, especially key priority 2, accessed at http://www.dotrs.gov.au/regional/summit/ outcomes/reports/theme4_report.htm 30 domestic violence in regional australia a literature review, june 2000. accessed at http://www.dotrs.gov.au/rural/women/index.htm 31 see j. nielsen, (1995) gender bias in the civil litigation system and its impact on women as civil litigants in nsw: northern rivers region, southern cross university, lismore. 32 j. giddings, b. hook, and j. neilsen, ‘legal services in rural communities: issues for clients and lawyers’ (2001) 26(2) alternative law journal 57 at 59. access to free and reduced-fee legal services legal and related services are also difficult for bush communities to access because either city-based services do not extend to rural areas or, if they are present, are inadequately funded or not designed to meet an individual client’s needs. while many rural practitioners provide significant free (pro bono) and reduced-fee services, such services may not reach those most in need. access to free services is limited by the smaller nature of many bush legal practices. despite the growing presence of legal aid commissions, aboriginal legal services and clcs in non-metropolitan communities, these services remain under-funded with a consequent impact on their ability to truly meet community need.33 many bush communities, especially those away from the coast, are characterised by economic disadvantage. bush lawyers within such communities have to live, work, and deal with clients whose lives are made more precarious by events such as floods, droughts, bush fires and other natural disasters. bush clients tend to have a lowered capacity to afford legal services, as compared to those in metropolitan areas.34 community attitudes and expectations lawyers working in remote areas have to find the appropriate balance between conflicting professional goals: the service ideal versus the profit motive.35 more importantly, while seeking to fulfill the service ideal, bush lawyers need to consider their personal needs including privacy and safety. it can be too easy for clients and others in a small community to underestimate the need for a lawyer to just be a member of the community and not a lawyer. the establishment and effecting of personal boundaries in such a way that encourages ongoing work whilst not leading to a ‘burnout’ is integral to the work of bush lawyers. safety for bush lawyers and their families can also be a real issue especially for those involved in acrimonious family law disputes or highly emotive criminal matters. on rare occasions community closeness may lead to the targeting of lawyers and their families by angry or disillusioned clients. clients know where their lawyers live and where and with whom they socialise. threats of violence may be more of a concern than would be the case in a more anonymous metropolitan area.36 importance of local knowledge members of ‘special’ groups are too often expected to rely solely on metropolitan-based services to meet their particular needs. while this reliance is not inappropriate in itself, existing city-based services are currently unable to adequately meet the needs of such groups.37 for instance, women the tyranny of distance: clinical legal education in ‘the bush’ 73 33 see a. pollard, ‘in briefs: activism in local communities’ (2001) 26(2) alternative law journal 90 at 91. 34 see the report of the community well-being and lifestyle working group of the regional australia summit, october 1999, especially key priority 1, accessed at http://www.dotrs.gov.au/regional/summit/ outcomes/reports/theme4_report.htm 35 m blacksell, k econimides and c watkins (1991) justice outside the city: access to legal services in rural britain, longman scientific and technical, 4. 36 j. giddings, b. hook, and j. neilsen, ‘legal services in rural communities: issues for clients and lawyers’ (2001) 26(2) alternative law journal 57 at 60. 37 louis schetzer, national children’s and youth law centre, submission to the victorian law reform committee, inquiry into legal services in regional and rural victoria, 13 june 2000, <http://www. p a r l i a m e n t . v i c . g o v. a u / l a w r e f o r m / l e g a l services_inquiry/default.htm>, (19 june 2001) notes that young people’s needs were not being adequately met in remote areas through the lack of separate regional children’s court facilities and the misunderstanding by local lawyers of the ‘particular legal and social issues that affect children and young people coming before the courts.’ from a remote region interviewed in 1995 who used city-based telephone advice services had found them difficult to access with some referrals to locally based community services being inappropriate.38 for example, a woman was advised by a metropolitan-based service to see her local chamber magistrate, who was renowned for his rudeness to women, to apply for an apprehended violence order.39 local knowledge and adequately funded community-based services, then, are crucial to ensure quality for bush clients.40 it may well be unrealistic to assume that the full range of specialist expertise required in a bush community can ever be present. the challenge then is to provide a scheme of legal services that appropriately meets the full range of needs within remote communities. telecommunications is seen as part of the answer but it would not ‘be fair for rural communities to have technological communication as their only source of service delivery.’41 technology will certainly play a part in overcoming the disadvantage of clients in bush areas but it must be used within a setting that also offers accessible and affordable face-to-face community-based legal services.42 limited choice of lawyers/courts/services in many bush towns, there is no resident lawyer. in company towns, lawyers tend to be acting for company interests. there is also a limited choice of solicitors in many larger bush towns with conflicts of interest precluding many community members using them.43 accessing court and tribunal facilities can be made difficult because they either do not sit regularly enough or do so too far away. more often than not, urgent matters cannot be dealt with locally and metropolitan-based or regional registries must be used. generally, alternative dispute resolution facilities are also not present or not affordable. locally based government and community sector services tend to cover unrealistic geographical areas and are under-resourced with staff often stretched to the limit. community based correction facilities tend to be limited or non-existent such that offenders are more likely to be imprisoned, thereby being further isolated from family and community.44 when courts and tribunals undertake circuit visits to a region, the case lists tend to be very full. lawyers feel institutional pressure to utilise alternative dispute resolution mechanisms and substantial pressure can be exerted on lawyers and clients alike to settle cases with a view to ensuring the court or tribunal can get through the list. often, only the cases with major issues in dispute which cannot be settled will go to a full hearing. many professional services are just not available in remote areas, such as a full range of accredited legal interpreters and specialist medical practitioners. there can also be issues regarding the 74 journal of clinical legal education june 2002 38 j. nielsen, (1995) gender bias in the civil litigation system and its impact on women as civil litigants in nsw: northern rivers region, southern cross university, lismore, at 39. 39 j. nielsen, (1995) gender bias in the civil litigation system and its impact on women as civil litigants in nsw: northern rivers region, southern cross university, lismore, at 38. 40 alrc, managing justice: a review of the federal civil justice system, report no 89, 2000, <http://www.austlii.edu.au/au/other/alrc/publications/ reports/89/>, chapter 5, paras [5.76] [5.80]. 41 margaret camilleri, central highlands community legal centre, submission to the victorian law reform committee, 27 april2000, <http://www.parliament. vic.gov.au/lawreform/legal_services_inquiry/default. htm> (19 june 2000). 42 j. giddings, b. hook, and j. neilsen, ‘legal services in rural communities: issues for clients and lawyers’ (2001) 26(2) alternative law journal 57 at 59. 43 see m. lawler, ‘there are different kinds of isolation’ (2001) 26(2) alternative law journal 81. 44 see c. pereira, ‘the tyranny of distance: disadvantage in queensland’s regional prisons’ (2001) 26(2) alternative law journal 74. coordination of visiting services. while a circuit court may be making its half-yearly visit to the region within a month, the visiting hospital psychiatrist may not be due for another six weeks. it is often difficult to access alternative dispute resolution processes because such services are either not available or are rendered unaffordable to clients because metropolitan services must be used. it seems inevitable that there will be further development in the area of on-line dispute resolution services in the future.45 ethical issues confidentiality is a key legal ethical issue within small communities. client confidentiality is often of great concern to women given the likelihood of existing professional relationships between their male partners and the local lawyer.46 apart from ensuring that lawyers respects client confidentiality, clients may have serious concerns regarding non-professional staff meeting the same standards. even if such concerns can be addressed, there may be issues of fear or embarrassment which inhibit people in obtaining legal advice.47 smaller population bases and consequent close connections between members increase the importance of sub-cultures and conformity to community values. people’s personal affairs are more prone to public scrutiny because of the greater likelihood that people know one another or are a ‘friend of a friend’. relatively innocuous personal details may be more than enough to identify a person in casual conversation. the protection of confidentiality is both crucial and problematic.48 confidentiality issues were important in planning for the clinic. it was critical that students appreciated the particular sensitivity in bush communities regarding this issue. by being aware of the importance of confidentiality as the cornerstone of the lawyer-client relationship, and its importance to clients, particularly clients in small communities, students raise the issue of confidentiality at the first interview with the client. students explain in plain english the meaning of confidentiality. this has the effect of establishing rapport and putting the client at ease. in many instances, bush clients are more likely to be willing to talk to someone not connected with their locale. many just want to talk to someone from outside their own community where they feel they are in a fishbowl. the use of local learning network queensland centres as the venue for the interview has the effect of safeguarding client confidentiality. as learning network queensland is a community education provider, attending their offices is likely to attract less attention than visiting a local solicitor. the discretion and attitude of learning network queensland (lnq) coordinators is also important, as they are the only local people to have knowledge that a client is seeking advice. it was important to ensure lnq staff appreciated the importance of confidentiality in legal contexts. it must be remembered that most of the issues discussed above are a double-edged sword in that they impact on both remote communities and bush practitioners, albeit in differing ways. geographical remoteness, family isolation, high costs of transport, and a scarcity of appropriate support and counselling services are all pervasive in the area of family breakdown and separation the tyranny of distance: clinical legal education in ‘the bush’ 75 45 s. hardy, ‘online mediation: internet dispute resolution’ (1998) 9 (3) australian dispute resolution journal 216. 46 r. hunter, family law case profiles (justice research centre, 1999), 71. 47 j. giddings, b. hook, and j. neilsen, ‘legal services in rural communities: issues for clients and lawyers’ (2001) 26(2) alternative law journal 57 at 59. 48 j. giddings, b. hook, and j. neilsen, ‘legal services in rural communities: issues for clients and lawyers’ (2001) 26(2) alternative law journal 57 at 59-60. in many remote communities. although these issues do not stand alone in the area of family law, they bring with them concerns which can touch the heart of a family and a community, for example, client confidentiality and the safety of women and children. the clinic established a unique way of delivering legal services to remote communities in an attempt to address these particular issues. audio-graphic technology and the existing infrastructure of the learning network queensland is used to deliver family law advice, information and assistance to clients outside of the brisbane metropolitan region. as far as the authors are aware, audio-graphic technology is not used for the delivery of legal services anywhere else in australia, nor the world. institutional issues balancing various interests from july 1999 to february 2001, the number of full time positions in the family court of australia has decreased from 784 to 617 (a reduction of 21%). court counselling services were reduced by approximately 30% with further reductions envisaged in the 2001/2002 financial year.49 the loss of these positions has been a direct result of a withdrawal of funding by the federal government. such withdrawal of funding from the family court has placed increasing pressure on registry staff and services. each family court registry is being expected to do more with less and this is one of the reasons why there is increasing pressure to utilise student programs. the brisbane registry of the family court is interested in having our program provide assistance to them in terms of dealing with litigants in person (increasingly becoming known as srl’s (self representing litigants)). this would effectively mean our students and supervisors being present at the court to assist those people appearing without representation (a program similar to the one presently being offered by monash university, melbourne). if we were to do what the court would like us to do, we would be overwhelmed by brisbane-based casework and would not have the opportunity to do our work with rural communities. the intensive nature of rural advice and casework activities has meant that less clients are currently being assisted than is the case with traditional face-to-face services. the complexities of the legal issues facing clients has also meant that we have been unable to assist as many individual clients as was originally estimated. we have identified the importance of developing a range of services to be provided to rural communities including student outreach visits to the regions and on-line information sessions for groups of clients. it has been interesting to note the manner in which the family court has provided positive encouragement for other registries of the family court to adopt a monash model without recognising the individual aspects of the monash program. the enthusiasm of the family court brisbane registry for our clinic to take on this added role has been reinforced by the contents of an in-house evaluation of the monash program which has recommended the adoption of their model elsewhere in australia. we are concerned that such a recommendation fails to acknowledge the individual circumstances of each clinical program and each family court registry. there is also an issue for clinical programs in terms of the funders valuing us because of our costeffectiveness in delivering community services whereas the law school is clearly seeking to meet both educational and community service objectives. for us, we have been careful not to 76 journal of clinical legal education june 2002 49 law council of australia, family law section report, 29 may 2001 compromise our educational objectives. a balancing of competing interests means that increasing pressure to deliver more services in less resource intensive areas, ie; not rural, may be brought to bear by the funding body at some stage in the future. if that occurs we will seriously need to re-evaluate our position in relation to community service to ensure that we do not lessen the educational strength of our program. networking issues we have found that the development of strong community partnerships in rural areas is an essential part of the success of the clinic. the issue of developing trust within these communities for services delivered from metropolitan centers, we believe, has been addressed by the use of local people (coordinators) assisting in the delivery of services in a non-threatening local environment (learning network queensland centres). the learning network queensland coordinators have actively promoted our service by way of local advertising and word of mouth referrals and recommendations. the overwhelming enthusiasm of the coordinators for the program has contributed to the take up of the program in the communities and meant that on any clinic day that we are usually fully booked by way of appointments. locally respected people, the coordinators have acted with complete integrity and professionalism in dealing with clients and their concerns. they have quickly understood issues such as confidentiality and conflict of interest and have assisted the supervisor to ascertain particular client needs, for example, a partially deaf client and a client without transport who each needed to be provided with specialist local, as well as legal information. early visits by the supervisors (from griffith university and caxton legal centre) to speak with local service providers also raised the profile and increased the likelihood of success of the program. service providers, such as counselors and charity groups, have continued to support the program. contact with these service providers outside of clinic times has meant that a number of referrals have been made to caxton legal centre outside of clinic delivery times for legal advice on matters other than family law. the closeness of rural communities, the older age of many people living on the land and an understandable suspicion about new, and especially it-based, services meant we did not expect that our services would be immediately accepted or utilised. the use of local knowledge to enhance the appropriateness of local referrals and support has ensured client satisfaction with services provided. communication issues a twist on maintaining a professional distance while the access of rural communities to services was an obvious issue in our planning, there was the further question of access to the clinic itself. a lesson learned early on in the clinic was not to presume that clients could just ‘pop in’ to our service when it suited us. an appointment was made for a client to attend at a convenient time for the clinic at 9.30 am on a friday morning. it was subsequently discovered that the client had to walk two hours into the town to make the appointment. obviously questions about access to transport should had been asked on making of the appointment. these types of issues are now addressed when appointments are made. another important issue needing to be addressed is any barriers to the client attending the interview, such as language or a dominant and suspicious spouse or partner. the tyranny of distance: clinical legal education in ‘the bush’ 77 although there are challenges inherent in using the telephone to interview clients, the main benefit of using audio-graphic technology is that it has a broad geographical reach, and it facilitates access to legal services to a larger number of clients in a shorter period of time, with travel cost to clients minimised. there is also the possibility that many people are less guarded and more open and honest when speaking on the telephone, in comparison to face-to-face interviewing. as people living in remote communities make use of the telephone regularly to communicate with neighbours, friends, family, and for business purposes, it is more likely that they are comfortable communicating via the telephone. further, the interviewer is less likely or able to form biases based on things such as appearance, status, or ethnicity, thus increasing objectivity.50 as a graphical interface is also used, there is the opportunity to utilise visual cues so the client can be presented with diagrams, pictures, or forms if necessary. the major drawback of audio-graphic technology is that the interviewer cannot see the reaction, facial expressions or body language of the client. the use of learning network queensland centres minimises the risk that a client may be under duress from a third party to answer questions, or may substitute someone else to answer questions for him or her.51 coordinators at learning network queensland centres verify the identity of the client and any other attendees, which helps to ensure that the client is not being pressured by a third party to answer questions. the use of audio-graphic technology to interview clients has been a challenge in itself for the students and teachers of the clinic. there has been little written about non face-to-face interviewing, even telephone interviewing, in the lawyering skills literature about how to conduct such interviews. most authors appear to assume that client interviews will be conducted face-toface, and many do not even mention non face-to-face interviewing or interviewing using new technology.52 others only make mention of it in the context of using the telephone for a preinterview conversation or follow-up meeting, and infer that such interviewing is to be avoided or kept to a minimum.53 helena twist devotes two pages to telephone interviewing, but only the first three paragraphs provide specific guidance on how to conduct telephone interviews.54 telephone interviews are essentially different from face to face interviews. different skills are needed, for example, to build rapport and trust with a client on the telephone is likely to take longer than face to face. the techniques of voice modulation, clear instructions and ensuring that a client has understood any advice given are extremely important when you cannot see the client. however, one skill that is universal across differing methods of interviewing is that you must listen to the client. 78 journal of clinical legal education june 2002 50 schmidt, f & rader, m. (1999), “exploring the boundary conditions for interview validity: metaanalytic validity findings for a new interview type”, personnel psychology, personnel psychology inc., durham at 451. 51 schmidt, f & rader, m. (1999), “exploring the boundary conditions for interview validity: metaanalytic validity findings for a new interview type”, personnel psychology, personnel psychology inc., durham at 463. 52 r. bastress & j. harbaugh, interviewing, counseling and negotiating: skills for effective representation, (1990), little brown, boston; a. sherr, client care for lawyers: an analysis and guide, (1999), sweet & maxwell, london; r. hyams, s. campbell, & a. evans, practical legal skills, (1998), oup, melbourne; chay, a. & j. smith, legal interviewing in practice, (1996) lbc information services, north ryde; d. keats, skilled interviewing (1993) australian council for educational research, melbourne; k. lauchland & m. le brun, legal interviewing: theory, tactics and techniques, (1996), butterworths, sydney; and c. maughan & j. webb, lawyering skills and the legal process, (1995) butterworths, london. 53 d. binder, p. bergman & s. price, lawyers as counselors: a client-centered approach, (1991), west, st.paul, at 195 and 236; and d. keats, interviewing : a practical guide for students and professionals, (2000) unsw press, sydney, at 123. 54 h. twist, effective interviewing, (1992) blackstone press, london at 48. further strategies in dealing with access to services have been to work with students, through learning network queensland sites using a detailed map of queensland to reinforce the geographic isolation of many people in need of legal services. the tyranny of distance appears to be understood by students in a visual rather than descriptive way. students may then also be challenged to locate various welfare and other support services within the community, information which is crucial to the success of the program. students are required to gain an understanding of the dynamics which may impact on clients and be able to work within and analyse the operation of law outside of metropolitan areas. for example, a woman may feel great shame in reporting her partner to the police on a domestic violence matter as the community and her supporters may stress the potential damage done to the family and its reputation if she does report. a strong sense of community may serve to minimise such individual actions. communication with clients from culturally and linguistically diverse backgrounds was factored into the planning of the clinic, and interpreters are arranged when necessary. physical disability does not preclude clients from attending learning network queensland centres as there is wheelchair access. similarly, issues have arisen during the clinic with clients in relation to intellectual disabilities, and the use of audio-graphic technology has not adversely impacted on the interviewers ability to identify the relevant issues. in fact, on one occasion, the client made the interviewer aware of the intellectual disability issue early in the interview. service delivery with new technology we should refer to the limitations of using new technologies to address legal service delivery needs. we need to refer to the importance of combining different processes, including face-to-face interviews and visits to the regions in question. the use of information technology as a means of providing legal services is slowly building momentum. at this stage, such use has tended to be limited to government and not-for-profit services being delivered to rural or remote communities from a metropolitan base.55 the internet, email, video and audio-conferencing are slowly starting to challenge the traditional way that lawyers have delivered legal services. acknowledging the work that has been done in the area by health and education professionals, lawyers are beginning to see non face-to-face services as an option. the technology challenge itself is another significant factor in the delivery of such services. the challenges that the use of technology has engendered are often common to both lawyers and their clients. for clients, such technology is often unfamiliar and the delivery of non-face to face services may be seen as threatening and unsupportive. use of audio-graphic technology, computers and the internet is often not a way of life for rural clients and training, cost and ongoing support may be an issue. for lawyers, looking outside of their own communities for legal work may be unfamiliar and the clients wary of the technology. for city practitioners, such forays into bush the tyranny of distance: clinical legal education in ‘the bush’ 79 55 the womens justice network is a service operated by legal aid queensland providing legal services to eighteen towns in south west queensland using computer video conferencing. see http://www.wjn.legalaid.qld.gov.au/ the western queensland justice network (wqjn) is a community legal service operated by legal aid queensland connecting rural and indigenous communities to legal information and advice through video conferencing technology. wqjn has video conferencing facilities in 9 community organisations throughout central west queensland. see http://www.wqjn.legalaid.qld.gov.au/. communities may raise legal issues they are not familiar with or are incapable of recognising. this has the potential to operate to the distinct disadvantage of clients. the clinic has found that these issues have to be reconciled with the fact that students tend to be very accepting of and interested in technological innovation in the delivery of legal services. client confidentiality in the delivery of non face to face services is also extremely important. in remote communities, clients may not believe that confidentiality can be maintained. as mentioned above, for women, it has been observed that solicitors in rural communities are likely to have an ongoing solicitor client relationship with her male partner.56 client confidentiality then is often of great concern to women in this position. locating the service at a venue which clients could be attending for one of a number of reasons may best preserve legal confidentiality. examples of such locations where technology is used to deliver various services are community centres, such as learning network queensland, and health centres. community partnerships are also integral to the success of any such program. regular meetings with service providers in rural or remote areas are crucial to ensure that the service is developing and responding as appropriate to the needs of the community. it would of course be ideal to be able to ascertain areas of need before commencing any such service to make the best use of resources. it has also been evident throughout the developmental process of this program that long time lines are needed to introduce a service of this nature and to have it gain community support. when face to face meetings do not happen regularly the level of trust from the community appears to be built up slowly. the experience of the women’s justice network initiative, which began in 1998 and is operated by legal aid queensland, reinforces the ‘long time line’ assertion. the women’s justice network provides legal services to women to eighteen communities in south west queensland (an area of 433,810 square kilometres or 271,131 square miles with a total population of 22,500 people), using technological means. the project is made up of videoconferencing sites located in community agencies in each town, and a webpage with an electronic booking system and access to legal information. essentially, the womens justice network combines electronic access to the legal aid database and audio and visual contact with lawyers in a range of distant but specialist services. however, the level of awareness of the network in the serviced communities is quite low and the rate at which the service has been utilised has been disappointing. evidence suggests that the attitudes of site coordinators are critical to the success of the project.57 a change of name to “rural advice and information network” has been mooted as many women in these regions do not readily relate to the title “woman’s justice network.”58 there has also been suggestions that a circuit lawyer is essential to reinforce the technological components of the womens justice network project, particularly videoconferencing and the use of computers, as a high percentage of those in the community are not computer literate. funding for the network will end in june 2001 and the videoconferencing sites may then be used as community access points. further, legal aid queensland has now set up a telephone advice service which is targeted particularly at rural and remote areas. considerable resources were directed into this new service in late 2000. 80 journal of clinical legal education june 2002 56 r. hunter, family law case profiles (justice research centre, 1999) 71. 57 grace, m. and j. previte, ‘evaluation of the women’s justice network’ 25 august 2000 accessed at www.wjn.legalaid.qld.gov.au/report/default.htm 58 whitaker, l, ‘the women’s justice network’ (2001) 26(2) alternative law journal 91 at 92. another initiative is the commonwealth attorney general department’s law by telecommunications project / family law access gateway (flag) which comprises a law and justice internet portal, a national database, and a call centre, with links to individual clcs. this project has been extensively criticised for: making ill-conceived assumptions about client access to telephones and the internet; providing a referral service to already stretched clcs without supporting funding; the provision of information, rather than advice or casework services; being culturally and socially inappropriate for people of linguistically diverse backgrounds; failing to address staffing and professional indemnity issues; and the lack of consultation with existing legal service providers.59 due to the number of services which are now operating to assist rural and remote clients it has also been interesting to note that the role of the supervisor in the clinic has been primarily to coordinate the service rather than to manage and develop it. this particular issue was not envisaged at the start of the program and in fact was not an issue until many of the current programs came into existence. co-ordination and co-operation given the range of experiences and varied needs of clients, communities and legal practitioners in remote areas, it is essential that new initiatives be properly coordinated and evaluated. in the past three years the queensland experience has been that a number of services have been established to contribute to servicing the legal needs of remote communities but with limited overarching coordination or integration to ensure such needs are in fact met. the failure of lead agencies to effectively co-ordinate the various legal services provided is of major concern. it is imperative that new programs firstly acknowledge other work being undertaken in a community and then target unmet legal needs. the importance of consultation with local service providers and potential clients cannot be underestimated. it is such groups that will hopefully become the supporters of new initiatives and the driving force for acceptance within communities. initiatives also need to be developed on a sustainable basis with recurrent money and resources. without continuity of service, the ongoing needs of communities are unlikely to be understood by service providers and will therefore be more difficult to meet. for non-face to face forms of legal advice and assistance to succeed, local community service providers will be crucial supporters. such support will not be maintained if service arrangements change without good reason and explanation. remote area initiatives need time for trust to develop so they can become part of the local landscape. experience suggests that there is a need for greater planning and coordination of the various legal services now being provided in remote areas. this need is increased where the services in question are making use of new technology given the rapidly developing nature of many communication technologies. our programme has recognised the importance of linking closely with existing agencies and infrastructure and, to taking a well-planned approach which avoids the making of promises which cannot be delivered. the tyranny of distance: clinical legal education in ‘the bush’ 81 59 see rowsthorne, m, ‘law by telecommunications; the magic solution for rural australians?’ (2001) 26 (2) alternative law journal 85 at 86-88. conclusion this paper has charted the range of issues which have been addressed in the development of a new technology clinical program. the program has successfully achieved various objectives. students have gained a strong appreciation of the family law issues facing bush communities and have significantly developed their communication skills. clients who would have had great difficulty accessing other lawyers have been able to receive comprehensive legal advice and information. our clinic work has identified the need for research in relation to rural legal service delivery. we have begun work to develop a research agenda on legal services in rural communities. as part of this, jeff co-edited an issue of the alternative law journal which was devoted to rural legal issues and which included an article written by barbara, jeff and a colleague from a regional university. the service provided to the hervey bay region has been particularly well received. various events, including the announcement of a major new prison in the area, resulted in the commissioning of a regional study of legal aid needs. the report of study highlighted that the griffith-caxton service had received very favourable support from community service providers and clients in hervey bay. we are now in the process of exploring possibilities to expand the services we offer in the hervey bay region. we are actively engaged in discussions with legal aid queensland regarding development of a new clinical program which would combine the use of new technology with faceto-face interviews. this program is likely to involve a partnership between griffith law school, legal aid queensland, caxton legal centre, learning network queensland and private law firms in the hervey bay region. the program has received favourable media coverage in a recent review of australian law schools in the higher education supplement, published in the australian, the leading national newspaper.60 the article emphasised the novelty of the technology with students being able to ‘beam their legal advice to a ‘country women’s association hall or neighbourhood centre hundreds of kilometres away to a client sitting at a computer’. the success of our clinic has relied on a well-planned and measured approach to engaging rural communities and service providers. we have successfully resisted the calls for us to take on additional areas of work despite pressure being applied by city-based services contending with resource shortfalls. references australian law review commission, managing justice: a review of the federal civil justice system, report no 89, 2000, accessed at <http://www.austlii.edu.au/au/other/alrc/publications /reports/89/>, chapter 5, paras [5.76] [5.80]. australia now a statistical profile, accessed at http://www.abs.gov.au/ausstats/ bastress, r., & j. harbaugh, interviewing, counseling and negotiating: skills for effective representation, (1990), little brown, boston. binder, d., p. bergman & s. price, lawyers as counselors: a client-centered approach, (1991), west, st.paul.. 82 journal of clinical legal education june 2002 60 d. illing, ‘clinical approach to the bush’ the australian, march 14, 2001, 43. blacksell, m., k econimides and c watkins (1991) justice outside the city: access to legal services in rural britain, longman scientific and technical, 4. camilleri, m., central highlands community legal centre, submission to the victorian law reform committee, 27 april2000, accessed at http://www.parliament.vic.gov.au/lawreform/legal_services_inquiry/default.htm (19 june 2001). chay, a. & j. smith, legal interviewing in practice, (1996) lbc information services, north ryde. chesterman, j., poverty law and social change: the story of the fitzroy legal service, (1996) melbourne university press. domestic violence in regional australia a literature review, june 2000. accessed at http://www.dotrs.gov.au/rural/women/index.htm economou, n., ‘the regions in ferment? the politics of regional and rural disenchantment’ (2001) 26(2) alternative law journal 69. giddings, j., b. hook, and j. neilsen, ‘legal services in rural communities: issues for clients and lawyers’ (2001) 26(2) alternative law journal 57. giddings, j and b. hook ‘a little tlc for the bush’. open learning 2000 4th international conference, brisbane, 6 december 2000, conference proceedings, 395. giddings, j. (ed), legal aid in victoria: at the crossroads once again (1998) fitzroy legal service. grace, m. and j. previte, ‘evaluation of the women’s justice network’ 25 august 2000 accessed at www.wjn.legalaid.qld.gov.au/report/default.htm hardy, s, ‘online mediation: internet dispute resolution’ (1998) 9 (3) australian dispute resolution journal 216. hunter, r., family law case profiles (justice research centre, 1999). hyams, r., s. campbell, and a. evans, practical legal skills, (1998), oup, melbourne. jeffreys, h., & p. munn, ‘tumby bay through crisis to coping: an integrated community development approach for managing change’ (1996) 6 (1) rural society 3. keats, d., interviewing : a practical guide for students and professionals, (2000) unsw press, sydney. keats, d., skilled interviewing (1993) acer, melbourne. lauchland, k., & m. le brun, legal interviewing: theory, tactics and techniques, (1996), butterworths, sydney. lawler, m., ‘there are different kinds of isolation’ (2001) 26(2) alternative law journal 81. ‘man arrested over casino incident’, northern star, friday 6 april 2001, p 2 maughan, c., & j. webb, lawyering skills and the legal process, (1995) butterworths, london. nielsen, j., (1995) gender bias in the civil litigation system and its impact on women as civil litigants in nsw: northern rivers region, southern cross university, lismore. nsw ministry for the status and advancement of women, dubay jahli: aboriginal women and the law report, nsw msaw, sydney, 1994. pereira, c., ‘the tyranny of distance: disadvantage in queensland’s regional prisons’ (2001) 26(2) alternative law journal 74. the tyranny of distance: clinical legal education in ‘the bush’ 83 pollard, a., ‘in briefs: activism in local communities’ (2001) 26(2) alternative law journal 90 at 91. report of the community well-being and lifestyle working group of the regional australia summit, october 1999, especially key priority 2, accessed at http://www.dotrs.gov.au/regional/summit/outcomes/reports/theme4_report.htm rowsthorne, m, ‘law by telecommunications; the magic solution for rural australians?’ (2001) 26 (2) alternative law journal 85 at 86-88. schetzer, l., national children’s and youth law centre, submission to the victorian law reform committee, inquiry into legal services in regional and rural victoria, 13 june 2000, http://www.parliament.vic.gov.au/lawreform/legalservices_inquiry/default.htm, (19 june 2001). schmidt, f & rader, m. (1999), “exploring the boundary conditions for interview validity: meta-analytic validity findings for a new interview type”, personnel psychology, personnel psychology inc., durham. senate legal and constitutional references committee, (march 1997) inquiry into the australian legal aid system: first report, ch. 1. sherr, a., client care for lawyers : an analysis and guide, (1999), sweet & maxwell, london. twist, h., effective interviewing, (1993) blackstone press, london. whitaker, l, ‘the women’s justice network’ (2001) 26(2) alternative law journal 91 at 92. williams, d., 17 december 1998, ‘making community legal services more accessible to south australians’, accessed at http://law.gov.au/aghome/agnews/1998newsag/508_98.htm williams, d., 11 may 1999, ‘national family law telecommunication advice and information service’, accessed at http://law.gov.au/aghome/agnews/1999newsag/telephone_99.htm williams, d., 7 february 2000, ‘community legal services boosted in regional and rural australia’, accessed at http://law.gov.au/aghome/agnews/2000newsag/689_00.htm williams, d., 9 may 2000, ‘legal aid funding boost’, accessed at http://law.gov.au/aghome/agnews/2000newsag/legalaid_00.htm. williams, d., 11 may 2000, ‘labor and democrats mislead on legal aid’, accessed at http://law.gov.au/aghome/agnews/1998newsag/508_98.htm women’s legal resources centre, women out west, wlrc, sydney, 1992. 84 journal of clinical legal education june 2002 reviewed article – teaching and learning in clinic keeping up with change: no alternative to teaching adr in clinic. an australian perspective jacqueline weinberg, clinical supervisor, monash oakleigh legal service, monash university introduction over the last 30 years alternative dispute resolution (adr) has become more prominent in australian legal practice due to the need to reduce the cost of access to justice and to provide more expedient and informal alternatives to litigation. there is a shift away from adjudicative or determinative processes and towards more cooperative processes for dispute resolution.[footnoteref:1] the rigidity, complexity and cost of formal structures has meant that courts, tribunals and other rights-based structures are often inaccessible to all but a few in society.[footnoteref:2] the incapacity of these structures to resolve conflict, although they may determine rights, has been a relevant factor in the development of alternative options for dispute resolution.[footnoteref:3] clearly, australian legal practice is undergoing change. as legal educators, we need to ask: how should we be preparing law students entering practice for these changes? how can we ensure that once they become lawyers, our students will not rely entirely on litigious methods to assist their clients but instead look at alternatives for dispute resolution? according to carrie menkel-meadow,[footnoteref:4] legal education is the most important site both for the development of approaches to conflict and for the construction of attitudes to adr processes and, in particular, to the widely used options for negotiation and mediation for prospective lawyers.[footnoteref:5] in this paper, i argue that there is no alternative to teaching adr in clinic in order to address client needs and to ensure that students engaged in clinical education are prepared for changes in legal practice today. i show that the increasing focus upon adr in australian legal practice represents a challenge for law schools, and that legal educators need to ensure they are educating students about adr. more than this, however, law students who intend to go into legal practice would benefit from developing their skills with respect to adr. clinical legal education is a subset of legal education that focuses on educating law students about professional legal practice. given its expressly practical focus, clinics represent one obvious setting in which practical adr skills might be taught. i argue that it is important to determine whether adr is being taught to students undertaking clinical legal education in ways that will enhance their preparation for legal practice. i will show that there is a need to explore: whether adr is being taught within clinical legal education, the strengths and weaknesses of existing approaches, and how the teaching of adr within clinics can be improved. although the focus of this paper is upon adr in the australian clinical context, i will also argue that changes afoot internationally – including, in particular, the requirements of ‘21st century lawyering’ – make these questions of relevance to a wider audience. [1: tania sourdin, alternative dispute resolution (lbc thomsons, 5th ed, 2015) 13] [2: ibid 12.] [3: ibid. ] [4: carrie menkel-meadow, ‘ethics in alternative dispute resolution: new issues, no answers from the adversary conception of lawyers’ responsibilities’ (1997) 38 south texas law review 407.] [5: ibid.] development of adr in australian legal practice the united states has been the front-runner in the contemporary use of adr in legal and justice systems.[footnoteref:6] australia has followed with the large-scale inclusion of adr, primarily through mediation, in court-connected programs.[footnoteref:7] ardagh and cumes[footnoteref:8] suggest that in australia the evolution of dispute resolution processes has proceeded through three distinct phases: the first being the predominance of adversarial processes in a traditional legal environment.[footnoteref:9] the second was a growth of a new phase in which adr involving non-legal processes and outcomes was the subject of major legal reform.[footnoteref:10] the third stage is what ardagh and cumes refer to as a ‘post-adr period’ where adr methods have been accepted as a normal part of conflict resolution and have become more institutionalised, rather than ‘alternative’.[footnoteref:11] [6: hilary astor and christine chinkin, dispute resolution in australia (lexis nexis, butterworths, 2nd ed, 2002) 5] [7: see for a discussion of the history and growth of adr in australia: astor and chinkin, above n 6] [8: a ardagh and g cumes, the legal profession post-adr: from mediation to collaborative law (australia) (2007) 18 alternative dispute resolution journal 205] [9: ibid.] [10: ibid.] [11: ibid.] the development of a focus on adr in australia can be traced back at a federal level to the 1900’s. arbitration is mentioned in the 1901 commonwealth constitution alongside conciliation for use in preventing and settling interstate industrial disputes (australian constitution, s51(xxxv)).[footnoteref:12] in 1904, the commonwealth conciliation and arbitration act 1904 (cth) created the commonwealth court of conciliation and arbitration. the new tribunal was not to be bound by legal forms of the rules of evidence. it was required to act in accordance with equity, good conscience and the substantial merits of the case.[footnoteref:13] parties were strongly encouraged to come to an agreement (conciliation) and where they could not, a decision was made for them (arbitration).[footnoteref:14] [12: as cited in m king, a freiberg, b batagol, r hyams, non-adversarial justice (the federation press, 2009) 116] [13: ibid.] [14: ibid, note: the court was abolished in 1956 following a decision of the high court in the boilermakers' case. the high court held that the court of conciliation and arbitration, as a tribunal exercising the non-judicial power of arbitration, could not also exercise judicial power as a chapter iii court.] in the 1940s and 1950s, in the international arena and in australia, negotiation and conflict theories continued to be used to assist with planning and strategy development and to manage more complex relationships that were becoming an increasing feature of modern business activities.[footnoteref:15] in the 1980s, negotiation theory achieved popularity and greater interest with the publication of fisher and ury’s text getting to yes in 1981.[footnoteref:16] the fisher and ury model was viewed as a collaborative or co-operative model. the most important technique in this type of problem-solving negotiation is to distinguish between interests (or needs) and positions (desires, wants).[footnoteref:17] this model evolved from work completed in the late 1920s by the theorist mary parker follett who developed and explored the model of constructive and integrative negotiation.[footnoteref:18] during the 1980s and 1990s, negotiation theorists continued to expand upon many of the notions contained in follett’s work and in the fisher and ury model of negotiation. in australia, decisional models, in which a third party exercised either an advisory or determinative function, were most popular until the early 1970s.[footnoteref:19] since then, focus has been less on third party interventions and more on providing support and assistance to disputants.[footnoteref:20] [15: sourdin, above n 1, 14.] [16: ibid citing r fisher, w ury, getting to yes: negotiating agreement without giving in (houghton mifflin, boston, 1981). ] [17: sourdin, above n 1, 45.] [18: ibid citing m p follett, constructive conflict, conference paper (presented at bureau of personnel administration conference, january 1925) reproduced in em fox and l urwick (eds), dynamic administration: the collected papers of mary parker follett (pittman, london, 1973)] [19: sourdin, above n 1, 16.] [20: ibid.] in 1995, there was a significant development in adr practice with the establishment of the national alternative dispute resolution advisory council (nadrac). nadrac was established as an australian independent body providing policy advice about adr to the attorney-general of australia existing until the end of 2013. nadrac closely examined definitions and descriptions of adr processes.[footnoteref:21] nadrac described adr as an ‘umbrella term for processes, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them’.[footnoteref:22] [21: ibid 4.] [22: national alternative dispute resolution advisory council (nadrac), dispute resolution terms (2003) as quoted in sourdin above n 1 3] the focus on adr in legal practice was enhanced in january 2008, when the national mediator accreditation system and standards focused on enhancing consumer certainty and supporting mediation referral.[footnoteref:23] alongside this system, a compulsory accreditation system for family dispute resolution practitioners was developed encouraging the practise of a mix of mediation, conciliation and advisory practice.[footnoteref:24] the dispute resolution process in australia has been assisted by the creation and growth of various professional organisations such as leadr[footnoteref:25] and iama.[footnoteref:26] the establishment of community justice centres in new south wales[footnoteref:27] and dispute resolution centres in queensland[footnoteref:28] in the early 1980s were attempts to promote the use of adr to resolve community-based disputes and to support the notion that justice can exist outside the courts.[footnoteref:29] the dispute settlement centre of victoria adopted adr as the preferred method of conflict resolution, promising both peaceful and consensual decision making without the controlling influence of professionals and a faster and cheaper alternative to the court system, a more costly and lengthy option.[footnoteref:30] in addition, there has been a rise in the number of tribunals using adr. in 1998, the victorian civil and administrative tribunal (vcat) was established with a broad jurisdiction.[footnoteref:31] in 2009, queensland introduced a similar tribunal, the queensland civil and administrative tribunal (qcat).[footnoteref:32] these tribunals facilitate self-representation by litigants and provide opportunities for parties to attend mediation.[footnoteref:33] [23: ibid.] [24: family law (family dispute practitioners) regulations 2008] [25: leading edge alternative dispute resolvers (leadr)] [26: institute of arbitrators and mediators australia (iama); among a range of other state based organisations: australian commercial disputes centre (acdc), australian dispute resolution association (adra). on 1 january 2015, leadr and iama combined to form the resolution institute] [27: community justice centres act 1983 (nsw)] [28: dispute resolution centres act 1990 (qld)] [29: sourdin, above n 1, 20.] [30: gutman, j, fisher, t, martens, e, why teach alternative dispute resolution to law students? part one: past and current practices and some unanswered questions, legal education review (2006) 125] [31: see administrative appeals tribunal act 1975 (cth), administrative decisions tribunal act 1997 (nsw), victorian civil and administrative tribunal act 1998 (vic)] [32: queensland civil and administrative tribunal act 2009 (qld)] [33: ibid.] there have also been a number of legislative initiatives to address the persistent adversarial frame of practice of australian lawyers. for example, in victoria there have been changes to civil procedure through the civil procedure act 2010 (vic)(cpa). section 22 of the cpa provides that lawyers and parties must use reasonable endeavours to resolve disputes by agreement between the persons in the dispute and these endeavours may include the use of adr.[footnoteref:34] in light of these changes in australia, the court systems have adopted adr, primarily using mediation processes in case management to encourage swifter processes and higher rates of settlement of disputes. susskind notes that alternative methods for dispute resolution is much needed as court systems are often unaffordable, excessively time-consuming, unjustifiably combative, and inexplicably steeped in opaque procedure and language.[footnoteref:35] therefore, for many policymakers, the idea of improving access to justice has come to mean improving the way disputes are resolved.[footnoteref:36] [34: civil procedure act 2010 (vic) s22] [35: susskind r, tomorrow’s lawyers, 2013, oxford university press 85] [36: ibid.] australian federal government policy has also increasingly supported adr. as early as 2009, the report, a strategic framework to justice in the federal civil justice system, recommended increased use of adr and case management and the better education of lawyers in non-adversarial processes.[footnoteref:37] more recently, in 2016, the victorian government released the access to justice review (the review), which identified ways to help disadvantaged victorians navigate the legal system and resolve everyday legal issues.[footnoteref:38] the review built on the productivity commission's 2014 access to justice arrangements: inquiry report, which found there were concerns across the country that the justice system was too slow, expensive and adversarial. the recommendations in the review covered a wide range of areas, including: greater use of adr for public bodies, including the courts and vcat.[footnoteref:39] more specifically it was recommended that written guidelines be developed to aid decision-making, and promote transparency and consistency in relation to potential referrals to adr.[footnoteref:40]the review went further to recommend that the courts consider continuing to use judicial registrars to conduct mediation and judicial resolution conferences where resources permit.[footnoteref:41] to facilitate this process, the courts and vcat are to consider developing a framework to facilitate communication regarding best practice in relation to adr.[footnoteref:42] in addition, legislative changes may be suggested to the victorian government that would enhance the use of adr.[footnoteref:43]the review recommendations went further to include innovative online dispute resolution for civil claims which could provide a model for a more flexible and proportionate way of dealing with small civil claims, and could provide a model for efficiencies in other areas of law in the future, including minor criminal matters such as traffic offences.[footnoteref:44] [37: access to justice taskforce, a strategic framework for justice in the federal civil justice system, (2009) 3.] [38: access to justice review summary report august 2016] [39: ibid, chp 4 alternative dispute resolution recommendation ] [40: ibid.] [41: ibid.] [42: ibid.] [43: ibid.] [44: ibid.] there has also been interest over the past decade in the creation of pre-litigation or pre-filing adr obligations.[footnoteref:45] these obligations essentially require individuals or organisations to attempt to resolve their differences before commencing court or tribunal proceedings.[footnoteref:46] some of the most comprehensive pre-litigation adr requirements in australia are evident in family law, via changes introduced in 2006. these changes included the introduction of a new hearing model in relation to children’s matters (less adversarial trial (lat) model),[footnoteref:47] as well as implementing family dispute resolution (fdr), which is largely conducted outside the courts. these changes have resulted in a dramatic reduction in the filing of cases in the family court.[footnoteref:48] amendments to the family law act (1975) (cth) in 2007 mean that if a party wishes to apply to the court for parenting orders under pt vii of the act, they first need to attend fdr. the process is outlined in the family law act (1975) (cth), ss 60l(7). such changes to civil procedure and family law are evidence of the commitment of governments to encourage settlement prior to litigation through the use of adr.[footnoteref:49] in addition, there has recently been a marked growth in industry-based, private, government and community-supported dispute resolution schemes.[footnoteref:50] [45: sourdin, above n 1, 420.] [46: ibid. ] [47: sourdin, above n 1, 275 and chapter 9 ] [48: ibid 275.] [49: tania sourdin, ‘making an attempt to resolve disputes before using courts: we all have obligations’ (2010) 21 australasian journal of dispute resolution 225.] [50: sourdin above n 1 21 citing ipsos australia pty ltd, alternative dispute resolution in victoria: community survey 2007 (report, department of justice, state government of victoria, 2007); ipsos australia pty ltd, alternative dispute resolution in victoria: small business survey 2007 (report, dept of justice, state government of victoria, 2007)] the increasing emphasis on adr represents a significant change to australian legal practice. for law students, knowledge of these changes and an education as to adr skills are essential for the effectiveness of the ‘new lawyer’ who will be entering legal practice.[footnoteref:51] although the teaching of adr need not be confined to clinical settings, i argue that these changes have an impact on how law students are taught in clinics and how they are prepared for the skills they will require in their future legal practice. as i explain in the next section, there are other reasons why an appreciation of adr is increasingly essential for the next generation of lawyers. [51: macfarlane, j the new lawyer: how settlement is transforming the practice of law (ubc vancouver) 2008 23.] the ‘new lawyer’ and ‘the 21st century lawyer’ macfarlane and susskind [footnoteref:52] refer to lawyers entering into practice in the 21st century as ‘new lawyers’ or ‘21st century lawyers’. according to these writers, most of the changes that have occurred in legal practice arise from the client’s need to be involved in the legal process. this has resulted in the need for changes in the lawyers’ approach and attitude towards their clients, their management of the matters and their professional relationship towards the court and other professionals. susskind is of the view that the three main drivers of change: the ‘more-for-less’ challenge, liberalisation, and information technology essentially ‘drive immense and irreversible change in the way that lawyers work.’[footnoteref:53] the ‘more-for-less’ challenge concerns the client’s need for legal service at a lower cost. clients of lawyers come in different forms. they may be individual citizens or large organisations, requiring a range of legal services. although diverse in nature, what they all share is the desire for legal services to be delivered in an affordable way.[footnoteref:54] this, susskind suggests, is one of the major challenges facing lawyers and clients today. how can lawyers deliver more legal services at a lower cost? [footnoteref:55] [52: ibid & susskind r, tomorrow’s lawyers, 2013, oxford university press 135] [53: ibid.] [54: ibid. ] [55: ibid.] liberalisation, susskind contends, concerns the flexibility that has arisen regarding who can be a lawyer. in the past, the practice of law has been strictly regulated with stipulations as to who can be a lawyer, who can run and own a legal business, and what services they can provide.[footnoteref:56] the justification for this, and rightly so, is the need to ensure that those providing legal advice be suitably trained and experienced. however, susskind suggests, that while this is a valid argument, in reality, this ‘closed community of legal specialists does not seem to offer sufficient choice to the consumer.’[footnoteref:57] as such, over the last few years, many have advocated for a relaxation of the regulations and laws that govern who can offer legal services and from what types of business.[footnoteref:58] susskind emphasises that these developments are of ‘profound significance and represent a major departure from conventional legal services.’[footnoteref:59] the idea behind this is to offer legal services in new, less costly, more client-friendly ways. the last of the three factors susskind draws on is the impact of information technology on lawyers and courts.[footnoteref:60] new lawyers need to be familiar with the changes brought about by information technology and the connection between their social use of information technology and its introduction and potential in their working lives.[footnoteref:61] [56: ibid. ] [57: ibid. ] [58: ibid.] [59: ibid.] [60: ibid 10.] [61: ibid 12.] supporting susskind’s views, macfarlane focuses on the changes occurring in the lawyer-client relationship. she calls this the ‘vanishing trial’ phenomenon,[footnoteref:62] where there is a ‘98% civil settlement rate and the increasing use of negotiation, mediation, and collaboration in resolving lawsuits have dramatically altered the role of the lawyer.’[footnoteref:63] according to macfarlane, ‘the traditional conception of the lawyer as ‘rights warrior’ no longer satisfies client expectations, which center on value for money and practical problem solving rather than on expensive legal argument and arcane procedures.’[footnoteref:64] macfarlane and susskind share the view that most clients are no longer willing to allow the lawyer to ‘run the matter’. in other words, clients need regular communication with their lawyer, and look for value for money in legal services.[footnoteref:65] macfarlane sums up this trend by noting that clients are increasingly demanding a role in determining how much time, money, and emotional energy they invest, and in what type of resolution.[footnoteref:66] macfarlane is of the view that ‘both corporate and personal customers appear increasingly unwilling to passively foot the bill for a traditional, litigation-centered approach to legal services, preferring a more pragmatic, cost-conscious, and time-efficient approach to resolving legal problems.’[footnoteref:67] [62: ibid 24.] [63: julie macfarlane the evolution of the new lawyer: how lawyers are reshaping the practice of law (2008) journal of dispute resolution 62] [64: ibid and r susskind & d susskind, the future of the professions: how technology will transform the work of human experts (oxford university press, 2015)] [65: ibid.] [66: ibid.] [67: ibid. ] whatever alternatives to dispute resolution are coming to the fore, the essence of this change is the need for change within this system, mainly with respect to the attitudes and expectations of practising lawyers.[footnoteref:68] macfarlane states that, ‘changes in procedure, voluntary initiatives, and changing client expectations are coming together to create a new role for counsel and a new model of client service.’[footnoteref:69] she speaks of the ‘warrior lawyer’, who provides narrow technical advice focusing on litigation and fighting, giving way to a more holistic, practical and efficient approach to conflict resolution.[footnoteref:70] macfarlane sees this as a new model of lawyering with the ‘new lawyer’ building on the skills and knowledge of traditional legal practice, but different in critical ways.[footnoteref:71] macfarlane suggests that there are three core dimensions to new lawyering: elevation of negotiation skills; communication skills; and skills to promote the lawyer client relationship.[footnoteref:72] according to macfarlane, the new lawyer utilises all three core dimensions: communication, persuasion, and relationship building to develop the best possible outcome for the client.[footnoteref:73] it is crucial for the new lawyer to be adept at negotiation skills to be effective. there is now a greater reliance on problem-solving strategies and more effort to directly include the client in face-to-face negotiation.[footnoteref:74] [68: ibid.] [69: macfarlane, above n 63, 63.] [70: ibid.] [71: ibid.] [72: macfarlane, above n 51, 23.] [73: ibid.] [74: ibid.] communication strategies such as listening, explaining, questioning and establishing rapport and trust are tools for lawyers to focus on in their work with clients. according to macfarlane, in the past these have been viewed as only part of the more specialised skills of advocacy and procedural requirements.[footnoteref:75] the new lawyer now focuses on these skills and gives them priority so that they become the primary vehicle for resolving conflict.[footnoteref:76] macfarlane argues that this recognition of the importance of persuasive communication in conflict resolution also means a greater concentration on the needs and wants of the other side.[footnoteref:77] the third factor is the new lawyer’s relationship with their client. this is where the new lawyer differs fundamentally from the traditional approach. according to macfarlane, the new lawyer realises that a crucial part of their role is to assist clients to identify what they really need, while continuing to assess the risks and rewards as well as what they believe they ‘deserve’ in some abstract sense.[footnoteref:78] the client is regarded as a partner in problem solving, as far as is feasible. macfarlane describes this as a ‘mutuality of both purpose and action between lawyer and client.’[footnoteref:79] this approach moves the lawyer away from the traditional, narrow, adversarial-based model towards a more flexible, conciliatory trajectory.[footnoteref:80] in seeking the best possible outcome, the new lawyer looks for options for the client based on the client’s needs and interests. as macfarlane points out, ‘the new lawyer practises from the basis that almost every contentious matter will settle without a full trial, and some will settle without a judicial hearing of any kind.’[footnoteref:81] therefore, the lawyer’s understanding of adr affects the construction of their identity and influences the ways that they practise.[footnoteref:82] [75: ibid.] [76: ibid.] [77: ibid.] [78: ibid 24.] [79: ibid. ] [80: ibid.] [81: ibid.] [82: ibid, citing carrie menkel-meadow, ‘the trouble with the adversarial system in a postmodern, multicultural world’ (1996) 38 william and mary law review 5, 37-39.] macfarlane advocates for law schools and clinics to embrace the changes taking place within the legal system.[footnoteref:83] these changes will prepare ‘new lawyers’ for the responsibilities and competencies that are desirable for an effective lawyer.[footnoteref:84] taking from macfarlane’s proposition that law schools and clinics should embrace the changes in preparation for the alternatives to litigation that the new lawyer will offer the client, we can ask: has legal education recognised this? [83: macfarlane, above n 51, 2.] [84: ibid.] adr and legal education in susskind’s book, tomorrow’s lawyers, he poses the question: what are we training young lawyers to become?[footnoteref:85] susskind asks, ‘are we training these lawyers to become traditional one-to-one practitioners specialising in black-letter law and charging by the hour or are we preparing the next generation of lawyers to be flexible, team-based, hybrid professionals?’[footnoteref:86] susskind suggests that emphasis in law schools is on the former, with very little regard for the latter.[footnoteref:87] he is concerned that many legal educators and policymakers do not even know there is a second option, and that law schools are therefore training young lawyers to become ‘20th century lawyers’ and not ‘21st century lawyers’.[footnoteref:88] susskind is not suggesting that core legal subjects such as contract and constitutional law should be ‘jettisoned’, but that there is a need to focus on how best to prepare lawyers for legal practice in the coming decades.[footnoteref:89] macfarlane echoes these concerns and concludes unequivocally that ‘there is an urgent need for lawyers to modify and evolve their professional role from adversarial ‘pit bull’ to creative conflict resolver.’[footnoteref:90] she suggests that there needs to be ‘a dramatic overhaul of legal education to prepare new graduates for the negotiation and dispute resolution challenges they will face in practice and for their new roles and new identities as ‘problem solvers’ in society.’[footnoteref:91] [85: susskind, above n 35, 135.] [86: ibid. ] [87: ibid. ] [88: ibid.] [89: ibid.] [90: macfarlane, above n 51, 16.] [91: ibid.] as discussed previously in this paper, the emphasis for the 21st century lawyer is on how to approach the changes occurring within the legal system, and how to become a practitioner who can address the needs of the client and focus on their interests. there is a need to increase the skillset of aspiring lawyers in order to empower them to deal with the developing and changing legal system. for over two decades, legal educators in australia have recognised the need to re-think our teaching approach. in 1995, for instance, australian clinician ross hyams[footnoteref:92] advocated for utilising various methodologies of law teaching ‘to make the legal system relevant for the students and to make the students relevant for the system’.[footnoteref:93] hyams suggested that students be trained in the appropriate skills that they will need to survive in the professional environment.[footnoteref:94] hyams argued that these reforms needed to go further than teaching students merely legal ‘operations’.[footnoteref:95] rather, interpersonal, ethical and communication skills which are integrated into each subject using various teaching methodologies can prepare students for their professional life, even if they do not choose to continue in the legal profession.[footnoteref:96] [92: ross hyams, ‘the teaching of skills: rebuilding-not just tinkering around the edges’ (1995) 13 journal of professional legal education 63 ] [93: ibid.] [94: ibid.] [95: ibid.] [96: ibid 78.] teaching of adr in australian legal education in early 2010, kathy douglas [footnoteref:97] investigated 12 law schools in victoria and queensland and one in new south wales. she found that adr is taught as a compulsory stand-alone course, or combined with civil procedure or non-adversarial justice.[footnoteref:98] douglas found that in some cases adr was integrated into substantive law courses across the curriculum, with a later year stand-alone adr elective available.[footnoteref:99] douglas discovered that although those law courses included adr in their curriculum, the place of adr was sometimes uncertain.[footnoteref:100] douglas argued that this was probably because adr was not one of the compulsory knowledge areas for accreditation as an australian lawyer. law schools were free, in other words, to exclude adr from their core offerings and not mandated to provide adr as an elective.[footnoteref:101] writers and educators such as king et al advocated strongly for adr to be taught across the curriculum, so that students would not only develop a comprehensive understanding of adr processes, but a desire to incorporate them into their future legal practice as appropriate and fundamental methods of dispute resolution.[footnoteref:102] [97: douglas, k, ‘the teaching of adr in australian law schools: promoting non-adversarial practice in law’, (2011) 22 australasian dispute resolution journal 55] [98: ibid.] [99: ibid.] [100: ibid.] [101: ibid.] [102: m king, a freiberg, b batagol, r hyams, non-adversarial justice (the federation press, 2009) 247] in 2008, the review of australian higher education (the bradley review)[footnoteref:103] was conducted to look at the quality of australian higher education. according to the review, the standard of higher education in australia had begun to lag behind other organisation for economic co-operation and development (oecd) countries and australia needed to increase funding, improve staff/student ratios and value teaching in universities and other providers.[footnoteref:104] [103: australian government, review of australian higher education (2008) (the bradley report)] [104: ibid xi-xvi.] in response to this report, the australian federal government introduced a new regulatory regime to ensure quality in the tertiary sector. this regime required all higher education providers to meet threshold standards in order to enter and remain in the sector.[footnoteref:105] selected discipline areas were given articulated threshold learning outcomes (tlos) including for the bachelor of laws, under the federal government learning and teaching academic standards project.[footnoteref:106] in 2010, funding was provided to develop benchmark standards in law, as part of a new higher education quality and regulatory framework and these standards were completed in december 2010.[footnoteref:107] the australian qualifications framework (aqf) provides a hierarchy of education qualification categories. for each qualification category, there are specified learning outcomes – that is, levels of attainment in defined areas of skills and knowledge that students are expected to achieve by completing the university course.[footnoteref:108] since 1 july 2015, all university courses have been required to comply with the aqf.[footnoteref:109] education providers are required to demonstrate student achievement of the aqf learning outcomes specified for the relevant qualification category. the australian learning and teaching council (altc) established discipline forums to develop standards that define the skills and knowledge required for particular discipline areas. the altc discipline forum for law developed the bachelor of laws learning and teaching academic standards statement (the altc standards), a statement of threshold learning outcomes for llb courses offered by australian universities.[footnoteref:110] [105: australian government, tertiary education quality and standards agency (teqsa), about teqsa http://www.teqsa.gov.au/about-teqsa at 3 january 2012.] [106: australian learning and teaching council (altc), ‘discipline setting standards’ altc newsletter 2010. http://www.altc.edu.au/standards at 3 january 2012.] [107: australian learning and teaching council, learning and teaching academic standards project: bachelor of laws: academic standards statement (december, 2010).] [108: see sourdin, above n 1. ] [109: ibid.] [110: australian learning and teaching council (altc), learning and teaching academic standards project: bachelor of laws: academic standards statement (december, 2010)] adr can be seen as both theory and skills education and some scholars have suggested that this discipline area covers a number of learning outcomes that a law student should master as part of their studies.[footnoteref:111] adr is relevant in four prime areas out of the six tlos. these include tlo 1: knowledge, tlo 3: thinking skills, tlo 5: communication and collaboration and tlo 6: self-management. [footnoteref:112] what this means is that even though adr is not currently mandated for admission as a lawyer in australia, learning outcomes from adr courses align with the requirements of contemporary legal education.[footnoteref:113] this initiative is seen as representing a significant increase in the status of adr with many law schools likely to be influenced to include adr in the compulsory curriculum, in some form, due to the tlos.[footnoteref:114] importantly, douglas tempers these findings with a warning that despite the potential for tlos to encourage a deeper focus on adr, law schools may meet these new requirements but still not offer students a quality experience of adr theory and practice.[footnoteref:115] douglas cautions against including adr as an add-on to core law subjects such as civil procedure. she argues that if this were to happen, students would experience adr within a litigation framework (given the specific subject being studied), and as a cursory treatment of adr in the learning and teaching design.[footnoteref:116] according to douglas, this integrated approach to adr may mean that adr is taught as a module that fails to address theoretical concerns in depth, and is unlikely to be taught by an adr ‘expert’, which may diminish the effectiveness of the learning and teaching design.[footnoteref:117] [111: ibid.] [112: australian learning and teaching council (altc), learning and teaching academic standards project: bachelor of laws: academic standards statement (december, 2010)] [113: douglas, above n 97, 283.] [114: ibid.] [115: ibid.] [116: ibid.] [117: ibid.] over the last 10 years, a number of australian law schools have included adr as a focus in the curricula. by way of example, la trobe university law school was the first australian law school to incorporate a compulsory dispute resolution subject into its law curriculum. since 2005, all law students in la trobe’s llb program are required to enrol in the course, dispute resolution, which provides a general introduction to the theoretical and practical aspects of conflict and dispute resolution, including litigation.[footnoteref:118] more details of the structure of the course can be obtained[footnoteref:119], though it must be noted that processes of arbitration, conciliation, mediation and negotiation are described and evaluated in this course. guest lecturers who are experienced practitioners in the field of mediation are used in a variety of areas including family law[footnoteref:120] skillsbased training in negotiation and mediation is a major and compulsory component of the course. it is noted by gutman and riddle that ‘the ‘learning by doing’ teaching philosophy behind the program is the central point of teaching and learning in the subject.’[footnoteref:121] this is brought about by the exploration of theoretical concepts in lectures and discussing readings on the lecture topics in seminars. the seminars allow the students to develop fundamental skills such as communication, negotiation and mediation in a smaller environment.[footnoteref:122] according to gutman and riddle ‘student evaluations of this course ‘have been overwhelmingly positive’.’[footnoteref:123] [118: gutman, j and riddle, m, ‘adr in legal education: learning by doing’ (2012) 23 australasian dispute resolution journal 191] [119: ibid.] [120: ibid 191.] [121: ibid.] [122: ibid.] [123: ibid 192.] in 2016, monash university incorporated adr into the civil procedure unit for llb and jd students. the teaching approach to the unit includes lectures conducted in lecture/seminar style with three tutorials supporting the student’s learning. students are given lectures on introduction to the civil justice system and alternative dispute resolution. in a tutorial focusing on adr, a simulated dispute is given to the students and there is an online component to the adr exercise, which must be completed prior to the tutorial. students work in small groups to resolve the online dispute using negotiation and mediation strategies. the students then attend the tutorial and complete the mediation with face-to-face adr. after completion of the activity, students are required to submit a short reflective journal about their experiences in the exercise.[footnoteref:124] [124: monash university unit guide for civil dispute unit ] both monash university and melbourne university offer postgraduate courses in adr. monash university offers a masters of dispute resolution. the guidelines for this course state that it provides a thorough theoretical and practical grounding in dispute resolution and develops the advanced professional skills and specialist knowledge required for working as a dispute resolution practitioner, including as an arbitrator, mediator or other dispute resolution practitioner. it is suitable for graduates interested in developing or enhancing specialist careers in dispute resolution.[footnoteref:125] [125: monash university unit guide for masters of dispute resolution] melbourne university offers a graduate diploma in dispute resolution. according to the synopsis this specialisation in dispute resolution works from the principles that underpin dispute resolution and management. the subjects examine how these principles inform the theoretical and practical aspects of this rapidly changing area of law. this course is relevant to legal practitioners and will appeal to others working in the design, reform and practice of dispute resolution. judges, legal practitioners and legal researchers teach a broad range of subjects spanning litigation and alternative dispute resolution[footnoteref:126] [126: melbourne university synopsis for graduate diploma in dispute resolution] from this discussion it is clear that the teaching of adr at law school has been recognised as adding value to students’ legal education and so should have a key position in the legal curriculum. there have been some attempts to incorporate adr into existing curricula at some australian universities. in the next section i will look more closely at the place of adr in australian clinical legal education. i will focus on how the teaching of adr can add value to students’ clinical legal education and be brought in line with the integration of theory and practice. adr and clinical legal education in australia in line with support for the notion of ‘learning by doing’ and the views of writers, academics and commentators that a legal education should also teach students what lawyers actually do in practice, a strong practice-oriented trend of legal education has developed in australia.[footnoteref:127] according to the best practices report[footnoteref:128] in australia: [127: gutman, j, fisher, t, martens, e, why teach alternative dispute resolution to law students? part one: past and current practices and some unanswered questions, legal education review (2006) 125 this research is focused on clinical legal education in the australian context, but it must be noted that clinical education is accepted, encouraged, taught, learned and researched internationally. much writing exists on clinics in the international context some include: margaret barry, clinical legal education in the law university: goals and challenges (2007) 27 international journal clinical legal education p 30, for discussions on clinical legal education in india, and p33 legal education reform in united states; james marson, adam wilson and mark van hoorebeek, the necessity of clinical legal education in university law schools: a uk perspective (2005)7 international journal of legal education 29 for a discussion on clinical legal education in uk, neil gold, clinic is the basis for a complete legal education: quality assurance, learning outcomes and the clinical method, (2015) 22 international journal of clinical legal education 1 for a overview on clinical legal education in canada ] [128: evans, a, cody, a, copeland a, giddings, j, noone m.a & rice s, best practices australian clinical legal education office of teaching and learning 2013 ] ‘clinic’ or clinical legal education (cle) is a significant experiential method of learning and teaching. cle places law students in close contact with the realities, demands and compromises of legal practice. in so doing, cle provides students with real-life reference points for learning the law. cle also invites students to see the wider context and everyday realities of accessing an imperfect legal system. clinical pedagogy involves a system of self-critique and supervisory feedback so that law students may learn how to learn from their experiences of simulated environments, observation and, at its most effective level, personal responsibility for real clients and their legal problems. cle is, in summary, a learning methodology for law students that compels them, through a constant reality check, to integrate their learning of substantive law with the justice or otherwise of its practical operation.[footnoteref:129] [129: ibid 20.] clinical legal education programs have grown in australian university curricula, in keeping with the notion that law schools must teach more than theory.[footnoteref:130] the clinical model of legal education commenced in australia in the early 1970s with the first australian clinical program commencing at monash university in 1975, followed by programs at la trobe university (1978) and the university of new south wales (unsw)(1981).[footnoteref:131] this model embraced a strong emphasis on service and access to justice with the clinics at these universities being onsite live client clinics. small clinical programs have since emerged in law schools around australia. in recent years, there has been an increase in external clinical placements with some being incorporated into existing community and government agencies.[footnoteref:132] it is recognised that clinical methodologies provide a forum for student learning about the effects that laws and legal processes have on people, moving further from cases to considering issues that exist both before and after any formal legal processes.[footnoteref:133] [130: noone m and dickson j, ‘teaching towards a new professionalism: challenging law students to become ethical lawyers’ (2004) 4 legal ethics 127. ] [131: j giddings, promoting justice through clinical legal education, justice press 2013, 9] [132: ibid 10, with reference to clinics established at deakin university (2003), the australian national university (2004), bond university (2004), macquarie university (2004), university of queensland and university of sydney, see giddings for detailed outline of clinical programs.] [133: ibid 13.] dickson provides a view of clinical legal education in australia as ‘a legal practice based method of legal education in which students assume the role of a lawyer and are required to take on the responsibility, under supervision, for providing legal services to real clients.’[footnoteref:134] it is through this model of legal education that students learn fundamental practical skills recognised as of equal value to their comprehension of substantive law.[footnoteref:135] as hyams et al emphasise, ‘…those learning the law at any stage of life as a law student, graduate or new lawyer are often a little surprised to realise that it’s not just what they know about the law that matters, but also how they learn it and apply it.’[footnoteref:136] [134: judith dickson, 25 years of clinical legal education at la trobe uni (2004) 29 (1) alternative law journal 41 ] [135: ross hyams, susan campbell, adrian evans, practical legal skills (4th ed.) (oxford university press, 2014)] [136: ibid 1.] the most clearly recognised model of clinical legal education known as the ‘live client’ clinic involves working with real clients.[footnoteref:137] according to giddings, the complexities of working with real clients needs to be acknowledged as enabling students to deepen understandings already developed elsewhere in the curriculum.[footnoteref:138] the ‘live client’ clinic model is recognised as developing key understandings and skills (such as structuring and conducting an interview, preparing to negotiate and reflecting on personal performance) in order to then extrapolate and generalise from those experiences.[footnoteref:139] in the united states, a 2007 report by the carnegie foundation[footnoteref:140] into legal education emphasised the importance of legal skills. it was argued in this report that clinics ‘can be a key setting for integrating all the elements of legal education, as students draw on and develop their doctrinal reasoning, lawyering skills, and ethical engagement, extending to contextual issues such as the policy environment’.[footnoteref:141] giddings takes this further by stating that work with real clients in this context of learning provides particular opportunities for students to develop their understanding of the lawyer-client relationship and to refine their legal practice-related skills.[footnoteref:142] as such, these clinics are seen as enhancing ‘the learning experience because of the way in which the student must interact with the client’.[footnoteref:143] the student is made acutely aware of the individuality of the relationship between lawyer and client and the need for the competent lawyer to respond to the particular set of facts that arise in each case.[footnoteref:144] clinical legal education and pedagogy[footnoteref:145] lends itself to the ‘interconnectedness of theory and practice’.[footnoteref:146] in the teaching of adr, this connection can occur by shaping students’ knowledge, skills and attitudes towards nonadversarial options for resolving clients’ legal issues.[footnoteref:147] [137: monash university has adopted such a clinical model at monash oakleigh legal service and springvale monash legal service. see further discussion on ‘live client’ clinics and other clinic types in australia in a evans and r hyams, specialist legal clinics: their pedagogy, risks and payoffs as externships, (2015) 22 international journal of clinical legal education 3] [138: giddings, above n 131, 78.] [139: ibid 79, also see specialist legal clinics: their pedagogy, risks and payoffs as externships, (2015) 22 international journal of clinical legal education 2] [140: ibid citing carnegie report 2007] [141: ibid, citing william sullivan et al, educating lawyers: preparation for the profession of law (carnegie report) (2007) 10. ] [142: giddings, above n 131, 95.] [143: ibid.] [144: ibid, citing john boersig, james marshall, and georgia seaton, ‘teaching law and legal practice in a live client clinic’ (2002) 6(2) newcastle law review 51,64. ] [145: see best practices australian clinical legal education office of teaching and learning 2013 for discussion on cle course design, including learning outcomes, principles and best practices pp11-14] [146: macfarlane, above n 51, 226.] [147: ibid.] macfarlane states that debate over learning about law can be reframed within a realisation of the ‘interconnectedness of theory and practice’.[footnoteref:148] it is important to explore whether this ‘connectedness’ between the teaching and practice of adr is in fact happening in various clinics in australia. macfarlane strongly advocates for clinical legal education to be warned against becoming ‘stuck’ in a conception of social justice lawyering that is heavily dependent on rights-based strategies and traditional hierarchical conceptions of the lawyer/client relationship.[footnoteref:149] macfarlane traces the history of early clinics, which she notes were motivated by an ‘ethos of public service and a desire to bring access to justice to underserved and marginalised groups within the community.’[footnoteref:150] in the process, macfarlane notes, students would acquire important practical skills and skills teaching was seen as an effective answer to demands for competency that were gathering pace as a result of reports such as the maccrate report [footnoteref:151] in the us and the marre report [footnoteref:152] in the uk. according to macfarlane: [148: ibid. ] [149: julie macfarlane, ‘bringing the clinic into the 21st century’, (2009) 27 windsor yearbook of access to justice 35] [150: ibid 36.] [151: ibid citing robert mccrate, report of the task force on law schools and the profession: narrowing the gap (new york bar association, 1992)] [152: ibid citing marre committee, a time for change: report of the committee on the future of the legal profession (london: general council of the bar/ the law society, 1988).] ‘clinics need to keep pace with the changing environment of legal service, and continue to capture the imagination of law students and funders, there needs to be a re-evaluation and modernisation of how we think about both the service and the educational goals of the law clinic.’[footnoteref:153] [153: ibid.] macfarlane suggests that clinics need to remain relevant and vital in their dual mission of legal education and justice. clinics need to examine how far the ideology of a ‘default to rights’, and an assumption that the lawyer is ‘in charge’ in the professional relationship still drive their decision-making and sense of worth.[footnoteref:154] the challenge for clinics is to be willing to reevaluate how, in this new environment, they can fulfill their dual mission of education and service most effectively and with the greatest potential for transformation.[footnoteref:155] legal clinics need to be brought into the 21st century and to revisit the ‘sacred beliefs that drive both the law school curriculum and the operation of the legal clinics.’[footnoteref:156] [154: ibid.] [155: ibid.] [156: ibid] in order for legal clinics to prepare their students to be 21st century lawyers, there needs to be a move away from the ‘default to rights’.[footnoteref:157] in other words, clinics need to move away from assuming a ‘relentlessly normative view of conflict, in which one side is right and the other is wrong, and in which therefore there must always be a winner and a loser’.[footnoteref:158] an alternative and more beneficial approach would be for clinic clients to be advised of a range of options, including litigation, negotiation and dialogue, all with the overall commitment to practical problem solving.[footnoteref:159] indeed, and as i explained earlier, there are some areas of law in which this is not only the ideal, but where it is also a legislative requirement. in the 21st century, there is a move towards ‘wise and transparent bargaining…towards finding the best possible settlement, this is a better strategy and may more directly address client’s needs, both legal and non-legal.’[footnoteref:160] it is interesting to note that in their research regarding adr in clinical legal education programs in australia, king et al observe that clinical supervisors will state that they have been teaching adr for many years and that the type of law that they have been modeling and teaching students simply did not have the label of ‘non-adversarial’ until recently.[footnoteref:161] this view is based on the fact that clinicians in these programs often attempt to resolve client problems without resorting to litigation, because most clients of clinics cannot afford the time or expense of court proceedings.[footnoteref:162] king et al. suggest that many clinicians would argue that there are overlaps between non-adversarial ideologies and clinical legal education and that these techniques have been an implicit part of clinical pedagogy for years.[footnoteref:163] they also argue that it is not sufficient for clinical legal educators to point to this holistic and client-centered way of lawyering and state that they are teaching adr skills.[footnoteref:164] instead, they suggest that the teaching of adr needs to be explicit, rather than implicit. they go further to suggest that [157: ibid.] [158: ibid 46.] [159: ibid.] [160: ibid.] [161: king et al, above n 102, 248.] [162: ibid.] [163: for further reading of this issue see king et al, above n 102, 249. ] [164: ibid.] ‘it is crucial for clinics to incorporate theories of non-adversarial justice not only in the practice of clinical legal education but in the scholarship and research, clinical legal education can provide students with more depth to their understanding of both practical legal skills and non-adversarial legal scholarship.’ [footnoteref:165] [165: ibid.] the issues raised by king et al have been echoed by experts in clinical legal education outside australia. frank bloch, a leader in research on the global clinical movement, suggests that because adr and clinical education share overlapping goals of advancing the interests of parties and addressing deficiencies in access to justice, adr education and clinical legal education are slowly integrating and advancing beyond the teaching and practice of basic negotiation skills that have been included in the clinical curriculum for many years.[footnoteref:166] bloch has researched the impact that the integration of adr into the clinical curriculum has had or might have had in law schools in india, south africa and the united states. he found that clinical programs that teach and practice adr can inform, improve, and reform not only legal education, but also, over time, the practice of law and the legal profession.[footnoteref:167] [166: frank s. bloch, the global clinical movement (oxford university press, 2011) 254] [167: ibid 260.] bloch reports that many law schools in the united states offer adr courses, with a few schools requiring students to take at least one adr course.[footnoteref:168] in addition, law schools, for example in south africa, also offer street law programs in which law students provide peer mediation and conflict resolution training for school students.[footnoteref:169] taking into account these contexts, we can see that some clinical educators are alive to these issues and adr is starting to be dealt with in more explicit ways in clinical settings. indeed, in the us, some law schools have established clinics dedicated to adr. a growing number of schools have developed mediation and arbitration clinics and some law schools offer community lawyering clinics that include adr components. according to bloch, some law schools in the us offer adr clinics, where students may assist in employment mediations and consumer arbitrations. some of these clinics are joined to court programs where litigants are offered an adr option in place of a trial.[footnoteref:170] according to bloch, ‘it is in clinics that embrace adr where law students develop their professional identity and fundamental lawyering skills and values as problem-solvers, conciliators, mediators and peacemakers’.[footnoteref:171] he concludes ‘for these reasons, adr has a unique contribution to make to clinical legal education around the world-as a richer way to teach and advance social justice.’ [footnoteref:172] [168: ibid. ] [169: ibid.] [170: ibid.] [171: ibid.] [172: ibid.] the aforegoing discussion indicates that adr has been recognised by clinicians in some clinical settings as an important aspect of lawyers’ practice and therefore that adr skills and processes, in particular, negotiation and mediation, are viewed as a pivotal focus in the education of lawyers. according to evans et al, clinical legal education confronts law students with the realities, demands and compromises of legal practice.[footnoteref:173] in so doing, it provides students with real-life reference points for learning the law.[footnoteref:174] clinical legal education also invites students to see the wider context and everyday realities of accessing an imperfect legal system, enabling them to integrate their learning of substantive law with justice implications of its practical operation.[footnoteref:175] evans et al, suggest that both the aims[footnoteref:176] and the ‘learning outcomes’[footnoteref:177] are central to the clinical design of a course, which is ‘designed to promote specified student learning outcomes’.[footnoteref:178] best practices [footnoteref:179] proposes possible learning outcomes for clinical legal education, which include ‘an understanding, and appropriate use, of the dispute resolution continuum (negotiation, mediation, collaboration, arbitration and litigation)’.[footnoteref:180] a focus in clinical legal education on concepts of justice where the practice of mediation or forms of dispute resolution other than litigation are utilised, will enable students to question adversarial approaches to dispute resolution that are reinforced in their legal studies through a case method of teaching.[footnoteref:181] students are encouraged to view the client’s matter holistically and are provided with strategies and theoretical models to support their practice.[footnoteref:182] in this way, students will become aware that adr is a fundamental part of the analysis of any case, in the same mode of taking instructions as to what is the cause of action that the putative litigant presents in clinic. this awareness for students is particularly apparent in the clinical context as most clinics are situated in community settings, offering clients access to justice, not available in private legal practice. as the clients in the community setting do not have the means to litigate, it becomes all the more important for students to consider other options for resolution of disputes other than litigation. these options will need to be addressed according to the client’s means. [173: evans, a, cody, a, copeland a, giddings, j, noone, m.a & rice s above n 128 ] [174: ibid.] [175: ibid.] [176: ibid 78 seen effectively as a statement by the law school of why it is offering the course ] [177: ibid 78 a statement by the law school of what a student will be able to show they have learnt from a course ] [178: ibid.] [179: ibid 81.] [180: ibid.] [181: ibid.] [182: ibid.] clinical legal education in australia has many connections with social justice.[footnoteref:183] there is a longstanding relationship between clinical programs and community legal centres and this relationship has influenced the teaching of various aspects of social justice goals in australian courses.[footnoteref:184] evans et al suggest that situating clinical courses in community legal centres gives a particular context to teaching legal ethics and challenges concepts of value-neutral, objective lawyering.[footnoteref:185] as such teaching lawyering skills in community legal centres highlights the legal skills required in a social justice setting.[footnoteref:186] [183: evans et al, australian clinical legal education (anu press, 2017) 97] [184: ibid. ] [185: evans, a, cody, a, copeland a, giddings, j, noone m.a & rice s, above n 128 40] [186: ibid.] when a clinic operates in a community legal centre setting, it is in the nature of the work that issues of access to justice arise daily, with almost every client who comes through the door.[footnoteref:187] this means that clinics offer students a powerful opportunity to analyse the ‘justice’ dimensions of law, ranging from the relationship between law and the perceived justice of its effect, to a lawyer’s ethical obligations to achieve what a client wants as a ‘just’ result, to systemic questions about access to law and legal services.[footnoteref:188] these are especially rich opportunities for reflective practice.[footnoteref:189] [187: ibid 116.] [188: ibid.] [189: ibid.] the role of the clinic as a service provider will itself raise systemic questions about access to justice, for example, about available alternative services (private, public, legal and non-legal), about accessibility (geography, physical, cultural, language, financial etc). within the work of a clinic based in a community legal centre or legal aid organisation, questions of access to justice attach to almost every client, inviting students to reflect on, for example, why the legal needs of a client and a community are not being met, or how they can be better met.[footnoteref:190] [190: ibid 117.] conclusion despite this recognition, there is still uncertainty as to whether or how adr, especially negotiation and mediation, is taught to students in clinical contexts. researchers like giddings recognise the educational value of the real client clinic in providing opportunities for students to develop skills relating to legal practice and an awareness of social justice.[footnoteref:191] the legal clinic is where students are provided with opportunities to develop a range of attitudes, skills and understandings associated with legal practice.[footnoteref:192] as such, if adr is becoming recognised as a prominent component of legal practice, it follows that the connection between students’ acquisition of knowledge in adr and the application of this acquired knowledge to resolve client disputes should be a focus of clinical legal education. [191: ibid.] [192: ibid.] the issue of where and how to ensure that adr has a place in clinical legal education may extend further than creating adr clinics, to a focus on legal service delivery in a social justice context. students need to be taught to focus on client issues and how best to solve them. this may involve students being skilled up to actually learn about and start to think differently about using adr frameworks in how they approach client matters and how they seek to resolve them. it may not be that the ‘clinical learning outcome’ is necessarily to teach students to become the best mediators or arbitrators but rather to provide students with holistic strategies, which they may use to negotiate for their clients in seeking alternatives for resolution of disputes. in this paper i have argued that adr processes are increasingly considered by legal practitioners to be an important aspect of lawyers’ practice and by legal educators as a necessary ingredient of legal education. for the reasons i have explained, there is a need to ensure that clinical legal education is keeping up with changes in legal practice and legal education. educators in the clinical legal education context should be providing students with sufficient knowledge of methods for dispute resolution to adequately prepare them for practice as ‘21st century lawyers’. susskind states that law schools cannot ignore future practice and law students should be provided with options, to study current and future trends in legal services and to learn some key 21st century legal skills that will support future law jobs.[footnoteref:193] adr is a growing area of legal practice resulting in changes in models of client service and advocacy.[footnoteref:194] the issue then is how best to prepare young lawyers for these changes. according to sourdin, legal academics (and law schools) play an essential role in the training and education of lawyers and in interpreting these changes.[footnoteref:195] sourdin sees legal education and training as ‘a continuum along which the skills and values of the competent lawyer are developed.’[footnoteref:196] there is a need to explore whether clinical legal education is taking these changes in legal practice on board and moving away from teaching traditional adversarial models towards teaching a more adr skills based curriculum. there is a need to look more closely at whether the ‘interconnect’ between the teaching and practice of adr is in fact happening in clinics; if so, how this teaching is happening including an examination of clinical curricula. if it is established that this teaching is taking place, then research needs to be done to determine the strengths and weaknesses of existing approaches to teaching adr in the clinic, and to consider whether and in what ways this teaching can be enhanced. we may also need to investigate whether it is sufficiently contributing to students’ knowledge of non-adversarial approaches towards conflict resolution. [193: ibid.] [194: macfarlane, above n 51, 243.] [195: sourdin, above 1, 5.] [196: ibid.] according to sourdin,‘changes to the law school education environment supporting adr in a realistic, rather than marginal way should mean that there is a greater chance that law school education in australia into the future will be both relevant and supportive of respectful dispute resolution in its traditional and alternative forms.’[footnoteref:197] clinical scholars view clinical legal education as a method of learning and teaching law.[footnoteref:198] it includes teaching about skills as well as the broader legal system.[footnoteref:199] in this paper, i have shown that adr has become a part of the legal system both in australia and internationally. if clinical legal education is to teach students about the skills needed for practice then it follows that a focus on the teaching and learning of adr skills is needed. extensive research has shown that adr has an important role in legal education. it places emphasis on a non-adversarial process of resolving conflict and provides lawyers with the knowledge and skills to engage with legal problems in a holistic manner. law students engaged in clinics who understand and adopt these processes will become lawyers who focus first on client’s needs and interests when problem solving and resort to adversarial practice only when necessary. in this way, clinical legal education can ensure that law students are well prepared for their roles as ‘new lawyers’ in 21st century legal practice, who will utilise their comprehensive knowledge of adr options to assist their clients to gain access to justice in more timely and cost effective ways. one can argue that in both the wider legal practice context and in the clinical education setting, adr has a prominent focus. as such, taking into consideration the arguments put across in this paper, to prepare law students for legal practice, there is no alternative but to teach adr in clinic. [197: ibid.] [198: evans, a, cody, a, copeland a, giddings, j, noone m.a & rice s, above n 128 40] [199: ibid 41.] bibliography a ardagh and g cumes, the legal profession post-adr: from mediation to collaborative law (australia) (2007) 18 alternative dispute resolution journal 205 astor, hilary and chinkin, christine, dispute resolution in australia (lexis nexis, butterworths, 2nd ed, 2002) bloch, frank, the global clinical movement (oxford university press, 2011) bush, robert a baruch, 'staying in orbit, or breaking free: the relationship of mediation to the courts over four decades' (2008) 84 north dakota law review 705 carr-gregg, susan, 'alternative dispute resolution in practical legal training too little, too late?' 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(thomson reuters, 2015) susskind, richard, tomorrow's lawyers (oxford university press, 2013) susskind, richard & susskind, david, the future of the professions: how technology will transform the work of human experts (oxford university press, 2015) access to justice taskforce, a strategic framework for justice in the federal civil justice system (2009) access to justice review summary report august 2016 wolski, bobette, ‘why, how, and what to practice: integrating skills teaching and learning in the undergraduate law curriculum’ (2002) 52 journal of legal education 287 55 reviewed article 97 forming lawyers who can contribute to equitable access to justice in south africa melanie walker and christopher rawson, university of the free state, south africa1 abstract drawing on amartya sen, this paper proposes that clinical legal education and training should be evaluated in the light of contributions to wellbeing and agency freedoms, foregrounding people’s capabilities as an appropriate metric for judging access to justice. the context is post-apartheid south africa and aspirations towards transformative constitutionalism which seeks to operationalize values of dignity, equality and freedom for all. the role the legal system, mediated by legal practitioners, should support constitutional values and the public good as envisaged by the national standards for university legal education. this challenge is explored in the article, drawing on a qualitative interview study. the researchers interviewed candidate attorneys across six university law clinics to identify the professional capabilities they valued for the purposes of contributing to enabling people to flourish in their everyday lives. transformative constitutionalism further suggests a set of capabilities which legal practice should enable. through the 1 melanie walker is a professor of higher education at the university of free state, south africa. christopher rawson is a legal practitioner at the university of free state, south africa. reviewed article 98 perspectives and voices of practitioners, valued legal capabilities and the corresponding university education and training practices are also identified. the idea of legal capability is developed and broadened both conceptually and empirically, building on work both by atkins and habbig and robeyns. the claim is made that legal education, lawyers’ professional capabilities, and transformative constitutionalism should be grounded normatively in a capabilities metric of justice and hence what matters for people’s wellbeing and agency freedoms. key words: capability approach, south africa, candidate attorneys, university law clinics, equitable access to justice introduction the south african constitution (rsa 1996) aspires, ‘to improve the quality of life of all citizens and free the potential of each person’. in the light of this, we propose that equitable access to justice and hence legal education should be evaluated in the light of contributions to our wellbeing and agency freedoms (sen 1999). as nussbaum (2010, 432) argues, ‘looking at what a nation has decided to protect through its system of constitutional law and judicial interpretation offers us useful information about what it thinks most central and most worth of protection’. foregrounding people’s capabilities (sen 1999) constitutes an appropriate metric of access to justice based on the two normative claims set out by robeyns (2017): that the freedom of persons to achieve wellbeing is of central moral importance, and that we understand reviewed article 99 freedom to achieve wellbeing in terms of people’s valuable capabilities. the south african constitutional framework indicates broadly what counts as having wellbeing, enabling us to connect legal education, institutional arrangements of the law, and realizing entitlements to equality, dignity, freedom and rights. what then is the role of legal practitioners and university education and training in operationalizing this aspiration in approaches, processes, and outcomes for everyday actions, and how can legal capabilities (habbig and robeyns 2022) which enable effective and equitable access to justice be fostered? as the preamble to the 2015 national standards (che 2015) for university legal education states: ‘law is central to creating a cohesive and successful society, it plays a significant role in facilitating economic development and most importantly, it is pivotal to entrenching the ethos and values of the country’s constitutional democracy…. therefore, legal education cannot be divorced from transformative constitutionalism’; legal education ‘is a public good’. in the light of this, we wanted to find out what professional capabilities a group of trainee lawyers themselves value for transforming society, and how they can support constitutional values and rights to enable people to flourish. we also go beyond earlier conceptualisations to argue that any notion of legal capability must attend to broader social purposes, values and capabilities, as the legal education standards in south africa envisage in evaluating equitable access to justice. we need then to have a normative view on which access to justice reviewed article 100 capabilities matter (the guiding vision if you will) if we are to identify both which capabilities should be enabled through legal education and training, based both on the capabilities which legal practitioners themselves have reason to value and an access to justice capability set. the group we interviewed may well constitute a best case scenario and no doubt there will be varied views among legal practitioners regarding the value of the public or the private good (such as prioritising selfenrichment, see walker and mclean 2013). but we are guided both by the aspiration for transformative constitutionalism and by the required public-good standards in south africa (che 2015) which suggest what legal education potentially could do even if this is never guaranteed. turning to conceptualisations of legal capability, atkins (2021) and habbig and robeyns (2022) have explained in some detail the origins of the notion of ‘legal capability’ and its undeveloped claim to arise from sen’s capability approach. atkins (2021) explains that legal capability is understood as measuring or improving an individual’s ability to deal with law-related problems in order to contribute to wellbeing. this applies to the broader population and is not necessarily specifically to legal practitioners. she points out that the concept lacks real theoretical grounding in the capabilities approach and calls for closer engagement with capabilities’ literature; it is this that habbig and robeyns set out to rectify. atkins (2021) further points out that in formulating a list of legal capabilities there is need to engage with the non-legal public as well. suffice to note that she is critical of the reviewed article 101 narrow faming of legal capability as embodying only knowledge, skills and attitudes, while habbig and robeyns (2022) add the focus narrowly on legal literacy. habbig and robeyns (2022) develop the conceptual underpinnings of legal capabilities beyond these narrower notions for an alignment with the capability approach whose aim is to foster human development by enlarging people’s opportunities (their capabilities) and their agency (sen 1999). they emphasize attention to both agency and structures in the framework; both determine people’s real freedoms and flourishing. they draw on martha nussbaum’s (2000) concept of ‘combined capabilities’ to emphasize the importance of external conditions of possibility in both forming and realizing people’s capabilities. in light of this they define legal capabilities ‘as the genuine or real opportunities someone has to get access to justice’ (2022, 10). however, neither atkins nor habbig and robeyns refer to the capability dimensions proposed by wolff and de-shalit (2007) which include two particularly relevant to legal capabilities: 1) living in a law-abiding fashion, that is the possibility of being able to live within the law; and 2) understanding the law. we think both these are important in our context. we build on these accounts and the helpful capabilities-based definition of legal capabilities but, as we noted, we widen the scope beyond strictly legal capabilities in three ways: to consider the wider context and what capabilities should be advanced for equitable access to justice. secondly, we introduce the empirical voices of practitioners, and we examine the role university education and training can play in reviewed article 102 forming professionals who can enable justice access. we include experiences of working in a university law clinics (ulc) as part of this education and training. thus we outline a normative access to a justice capability set for our southern context of inequality, unemployment and widespread poverty in which people must navigate conditions of uncertainty and precarity on a daily basis. we think it may have relevance for other contexts where social and economic inequality and exclusions also feature. the space of investigation is that of university law clinics (ulcs) in south africa. these have their origins in the involvement of law students and academics in struggles for social justice, at the same time providing clinical legal education in the face of deep-seated social and economic inequalities (mubangizi and mcquoidmason 2013). their primary educational goal is ’training good future lawyers who can fulfill the promises of our progressive constitution’ (mubangizi and mcquoidmason 2013, 63). from 1993 candidate attorneys were allowed to obtain practical training in approved legal community service organizations such as law clinics. this was followed in the early 2000s for provision by legal aid south africa to fund ulcs with up to ten candidate attorney posts. candidate attorneys undertake clinical training but may also work on projects funded by legal aid south africa. the legal practice act of 2014 (see https://www.gov.za/documents/legal-practiceact) prescribes that law graduates must undergo a compulsory practical vocational training as candidate attorneys before admission as an attorney. the act regulates https://www.gov.za/documents/legal-practice-act https://www.gov.za/documents/legal-practice-act reviewed article 103 law clinics, requiring registration as a non-profit organisation that provides free legal services. this differentiates the research participants from candidates in private practice who will not get the same exposure. nonetheless, ulcs still face the challenge of sufficient stable funding and may be undervalued by law faculties. in the challenging south african context candidate attorneys in ulcs need both to form their own effective (that is realizable) capabilities and their functionings as lawyers in order to contribute to realizing constitutional values. indeed, in the face of widespread poor service delivery there is considerable reliance on legal interventions around health, housing, education and environmental damage. however, important as landmark cases are and the significance of judgements secured, they do not directly address the everyday, granular realities of poor people struggling with evictions, divorce, contractual agreements, and such like. both kinds of interventions – systemic judgements and improving everyday access are needed for justice. the project methods: conceptual and empirical in our view, we need methods that pay attention to people’s lived experiences in order to understand the effect of the law on their lives; as sen (2009, 18) puts it, ‘justice cannot be indifferent to the lives that people can actually lead’. we therefore undertook a qualitative case study in which we set out to understand the contribution of universities and especially ulcs to the formation of lawyers with the values and skills to contribute meaningfully to transforming south africa. we first reviewed article 104 did conceptual work to justify adopting the capability approach and then to think about which capabilities might enable equitable access to justice, drawing on our understanding of south africa as the context and also on earlier research with students from low-income backgrounds as a proxy for what communities might want for better lives (walker et al. 2022). from this we generated a cluster of three intersecting capabilities. then, in 2022, after securing ethical approval, we contacted a sample of nine of the university law clinics in south africa; participants volunteered from six of these. we interviewed 16 volunteers online between march and may 2022, 13 were candidate attorneys at six different ulcs, as well as the director and two practising attorneys at one of the clinics. all interviews and universities have been given pseudonyms. the clinics were situated at karee, mahogany, marula, all mid ranked research and teaching universities, and mopane, baobab, yellowwood all elite universities in the top five in south africa and globally ranked. all six are historically advantaged (that is formerly white) universities. two interviewees had studied at forest and another at fynbos, both historically disadvantaged (that is formerly black) universities. we wanted to understand the contribution of university legal education as well as participation in a ulc to professional formation, and what the challenges and barriers are to realizing equitable access to justice and hence also social justice for the marginalized in south africa. in the interviews we asked participants about the following: their thoughts on a good future for all in south africa and challenges or reviewed article 105 obstacles, why they chose law, the contribution of their university education to becoming and being the kind of lawyer they want to be, why they came to work in a ulc and their experiences and learning there, and their future career aspirations. based on our interview data, we report on how this sample of young lawyers develop their own professional capabilities and functionings to enable the agency of their clients. this involved us interpreting carefully what was told to us across three levels: a capability set young lawyers had reason to value, their professional education and training experiences, and broader capabilities which would need to be enabled and activated for equitable access to justice. table 1: participants name ulc demographic university where law degree completed sindiswa karee black, female forest nadine yellowwood white, female yellowwood mkhize yellowwood black, female fynbos fundiswa yellowwood black, female fynbos dineo yellowwood black female yellowwood reviewed article 106 naledi karee black, female marula puleng karee black female forest alan karee mixed race, male, ulc director yellowwood nomzano karee black, female, qualified attorney forest michelle baobab white, female baobab michael mahogany mixed race, male mahogany abongile mahogany female, black mahogany mamello mopane black, female mopane jennifer mahogany white, female mahogany ntando marula black, male marula nick karee white, male, qualified attorney karee mailto:rawsoncm@ufs.ac.za reviewed article 107 conceptual work 1) capabilities, functionings and agency the capability approach (sen 1999, 2009) provides the normative and conceptual basis for our study. the approach enables an informationally rich, people-centred analysis which can account for context and all relevant factors which shape people’s opportunities for wellbeing. briefly, capabilities are our opportunities and freedoms to be and to do in ways which we value so that wellbeing is understood as having and expanding a person’s capabilities; the achievement of the richness of human life is the guiding norm for access to the law. thus, a person’s capability set is a set of real (actual) opportunities that they could use in one way or another; it indicates the possible pathways that lie open. functionings are valuable beings and doings; these include a range of possible activities and imply that the person is actively involved in their life, not merely a passive bystander. functionings might include basic capabilities such as being well-nourished, having shelter and adequate clothing, as well as more elaborate functionings such as having self-respect and going without shame in public. income and public services are necessary for the realization of most of these functionings, but are only instrumentally important in the capability approach, not goals in themselves (sen 1999). connecting agency and structures, ‘conversion factors’ shape access to justice. these might be: 1) personal factors, such reviewed article 108 as sex, disability, but also hard work, motivation etc.; 2) social factors deal with norms and values, the nature of institutions and cultural practices, relationships, and more; 3) environmental factors relate to the natural or created environment in which a person lives such as a rural village a long and costly distance from law courts compared to a large town, availability of a free law clinic, and language interpreters, but also wider factors such as the historical legacy of apartheid. a second reason for using the approach is sen’s (1999) emphasis on agency as a central concept and also as a central normative concern that we should be active choosers from our capability set with regard to the functionings and goals that matter to us. thus, habbig and robeyns (2022, 14) prefer that access to justice should focus on the capability aspect rather than the functioning, ‘since there might be reasons why a citizen would prefer not to exercise her freedom…we must protect the person’s choice of whether or not (if so how) to get engaged in legal matters’. while we agree up to a point, in south africa without looking at actual functionings it may be challenging to separate out why people do not access justice because of an active choice and why they do not access justice because of all the obstacles they face as poor and marginalized persons and communities. thus in our context we think that both capabilities and functionings to access justice are important for wellbeing. reviewed article 109 2) capabilities for equitable access to justice we first generated a cluster of intersecting capabilities which we regard as arising from the constitution, normative theorizing and an ubuntu ethic and way of life. they are also evident in what the interviewees said to us directly or indirectly. they are important for the flourishing of clients, and in an unequal and stratified higher education system with multiple exclusions they are as important for students (see walker et al. 2022). 2. 1. a normative african justice ethic: ubuntu we think an ubuntu ethic ought to underpin equitable access to justice and provide ethical grip to legal and other capabilities and to higher education in our context. ramose (1999, 37) explains that the saying motho ke motho ka batho (‘i am because you are’, ‘a person is person through other persons’) encapsulates the idea that to be a human being ‘is to affirm one’s humanity by recognising the humanity of others and on that basis establish humane relations with them’. thus, ‘to denigrate and disrespect the other human being is in the first place to denigrate and disrespect oneself’ (1999, 49). forming the ‘excellent’ self cannot be achieved except through others; my wellbeing depends on others also having wellbeing. thus, ethical, social and legal judgement of human worth and human conduct should be based on ubuntu, ramose argues. for metz (2014, 6761) to exhibit ubuntu is to be a person who is living a genuinely human way of life; the lack of ubuntu is to lack human excellence or humanness. further, says metz (2014, 6764), community (harmony) reviewed article 110 involves ‘identifying with others and exhibiting solidarity with them’. not to practice solidarity would show lack of concern for each other’s flourishing or, ‘worse, to exhibit ill will in the form of hostility and cruelty’. one displays human excellence through kindness, compassion, mercy, and similar values. nelson mandela (2002, 10) also affirmed this sub-saharan ethic when he reminded us that, ‘what counts in life is not the mere fact that we have lived. it is what difference we have made to the lives of others that will determine the significance of the life we lead’. we do not think an ethic can be reduced to a capability, given that ubuntu ‘is a statement about being and cannot be reduced just to a methodology of doing something’ (matolino and kwindingwi 2013, 200); it is a whole way of life. maphosa and nhlapo (2020, 30) suggest that ubuntu, ‘permeates the constitution generally … and specifically fundamental human rights’; ubuntu thus animates transformative constitutionalism ethically and the advancement of community and social solidarity. it is this ethic which the working of the law and legal practitioners ought to uphold and to value in the south african context, challenging poverty, inequality and social exclusion. it underpins the capability set which we explain below. 2.2. a capability set the first of the capabilities we identify is human dignity, which is architectonic in that it suffuses all other capabilities. it means being able to function and flourish and to be recognized as a dignified human being. a concern with human dignity ‘is to reviewed article 111 say something about the worth, stature or value of a human being’ (sulmasy 2013, 938). sulmasy conceptualizes ‘inflorescent dignity’, that is ‘the worth or value of a process that is conducive to human excellence’ (938), it is ‘the value that comes from flowering or flourishing’ (938). people who are flourishing as human beings, are ‘living lives that are consistent with and expressive of the intrinsic dignity of the human’ (938). nussbaum (2000, 79) notes the importance of being ‘a dignified free being who shapes his or her life in cooperation and reciprocity with others, rather than being passively shaped or pushed around’. the role of the law and legal practitioners is thus to enable inflorescent dignity and for all human beings to develop a sense of themselves as persons of dignity and worth to whom justice is due. inflorescent dignity then requires that legal practitioners honour the intrinsic dignity of clients and work to enable them to flourish. in turn, universities should honour the dignity of their (law) students and enable them to flourish in higher education. we find support in the constitution (1996, 10) which states that: ‘everyone has inherent dignity and the right to have their dignity respected and protected’. justice o’ regan (quoted in liebenberg 2005, 3) described the value of dignity in constituting post-apartheid society in this way: ‘the constitution asserts dignity to contradict our past in which human dignity for black south africans was routinely and cruelly denied. it asserts it too to inform the future, to invest in our democracy respect for the intrinsic worth of all human beings’; dignity is a ‘founding value of reviewed article 112 our new constitution’ (quoted in liebenberg 2005, 7). similarly, in the grootboom (right of access to housing) case, yacoob asserted ‘that account be taken [by the state] of the inherent dignity of human beings’ (quoted in liebenberg 2005, 3). davis et al. (2005, 2.1 and 3.1) affirm that, ‘the recognition of intrinsic dignity and worth of all human beings, informs, animates and directs all fundamental rights’. opening up the importance of conversion factors, liebenberg (2005, 12) explains that, ‘if we are to constitute ourselves as a society that respects human dignity…we [must be] committed to redressing the social and economic conditions of those whose capacity for development and agency is stunted by poverty. by failing to do so, we undermine the very foundations of our new constitutional democracy’. as liebenberg (2005, 31) further emphasizes, in our context of severe inequalities and widespread poverty we are ‘most in peril of failing to value the human dignity of the poor’. nussbaum (2000, 74) too, notes that without supportive social uptake conditions, dignity, ‘is like a promissory note whose claims have not been met’. second in our set, is the concept of repairing capabilities, which the constitution (rsa 1996, 5) acknowledges in its preamble when it enjoins us to: ‘recognise the injustices of our past’. we draw on spelman (2002, 5) who writes that: ‘to repair is to acknowledge and respond to the fracturability of the world in which we live in’, and hence to carefully address past injustices in order to look to a future which is different, repairing past harms, and fostering flourishing. past injustices should be dismantled for ‘reparative futures’ (spriprakash et al 2020), which signal a reviewed article 113 commitment to identify and recognize these injustices experienced by individuals and communities. even when they appear over, past injustices will continue to endure in people’s lives (economic exclusion and poverty for example) in material and affective ways unless they are carefully addressed. to this end, spriprakash et al. (2020) highlight the importance of collective learning, of ethical listening, and of dialogue in producing enlarged understandings and practices, and of reciprocal relationships. the third in our set are capabilities which foster and enable epistemic inclusion. who can speak, who is heard and listened to, who is believed, who is credible, who can make themselves understood in the light of the available communicative resources, who has access to information about the law and information about their legal and human rights – all matter in making and sustaining a dignity-enhancing society. fricker’s (2015) conceptualization of epistemic injustice is helpful here. she argues that epistemic injustice occurs when someone is wronged specifically in their capacity as a knower, and that a central capability ought then to be each person’s opportunity to be an epistemic contributor, both receiving and contributing epistemic materials to the common pool. her two basic concepts for epistemic injustice (being excluded as an epistemic contributor) are: testimonial injustice when someone is not regarded as a credible knower because of identity prejudice (being black, or female, or working class, for example), such that a poor black client might not be listened to or regarded as credible. hermeneutical injustice is structural, when reviewed article 114 the knowledge resources of groups (of communities, of the poor, of indigenous peoples) are excluded or marginalized in the society’s common knowledge pool. here there would be inequitable access to the legal system or a legal system which is not oriented to the poor majority. where there is epistemic injustice, epistemic relations and communication are distorted and hierarchized and people are denied their participation in a shared way of life. as freire (1972) argues, dialogue is an existential necessity and can only truly exist where people have not been denied the right to speak. epistemic inclusion is in place when everyone has the opportunity to have a legitimate, credible and dignified voice, to be believed and acknowledged and to have their meanings, experiences and contributions taken seriously. figure 1: capabilities for equitable access to justice (not a blueprint but worth discussing) dignifying (architectonic) epistemic inclusion repairing reviewed article 115 further, in identifying this capability set, we also extrapolated from what interviewees said was needed for a better future for south africans as a proxy for transformation and justice. they spoke about all of these in thinking about the future and working towards a transformative legal system: spatial freedoms and safe mobility; access to quality education, healthcare, safe shelter, running water, electricity; the ability of people to make their own decisions about their lives; a life characterized by respect not stereotypes; narrowing the inequality gap; being able to trust government; equal access to opportunities; peace and harmony; seeing ourselves as a collective; being aware of each other’s struggles and experiences as human beings; an end to endemic gender-based violence; and, a corruption-free future. mamello summed it up well when she said: ‘i think if everyone has human dignity and they’re valued in society despite our differences, and our quality of life is good, just being given an equal chance in life, then i’d say, that’s what a good future looks like’. that this is not in place for many south africans speaks to the formidable social and environmental conversion factors facing equitable access to justice. nor is the law as it is practised necessarily enabling of dignity, repair and epistemic inclusion. as s’bu zikode (2011, 2) of abahlali basemjondolo (poor people’s movements) explains: ‘the legal country is not the real country. the law may protect you against eviction or repression on paper but in reality, if you are poor, councillors, landlords and the police all treat you as if you are beneath the law – as if you don’t count to the law. reviewed article 116 poverty is treated as criminality, ignorance…the way life is lived beneath the law is very different to how the law looks in books’. puleng in our study confirmed that, ‘people say that if you don’t have the money, the law will never speak for you’. 2.3. a capability set which legal practitioners’ value having outlined an access to justice capability set which asks that all people are treated as dignified human beings; that injustices are acknowledged and repaired; and, that everyone is able to be an epistemic contributor we now turn to the capabilities that legal practitioners value for their own professional contributions to society, based on what was told to us. watkins (2021, 23-24) has proposed a list of legal capabilities for a european context, drawing on literature rather than empirical data. her suggestions as to what a ‘legally capable person’ (we think she means a legal practitioner) might actually be able to do and be are: knowledge/education (about the law); recognition (of the relevance of law to an issue or situation); research; assistance (to seek and secure assistance from others); reasoning; assessing (courses of action and aware of own limitations); planning; fortitude (pushing for a desired outcome); and, influence/ communication. these capabilities seem broadly ‘neutral’ in so far as they have no obvious normative underpinnings in terms of what actual justice might entail. we think they can be subsumed under our capability below of legal competence. reviewed article 117 we discussed with the interviewees their own experiences of studying law and their practical experiences at the ulcs. because these are all university-based, we see them as an extension of the university education’s contribution. based on our interviews, the four broad capabilities we extrapolated, as told to us by practitioners, and which can be mapped over the three capability clusters outlined earlier are set out below. the set is multi-dimensional and intersecting. one capability cannot be extracted and evaluated absent the rest of the set. legal competence. this broad competence is acquired through university study and experientially through work in a ulc, with real clients: knowledge of the law (theoretical) and legal practice skills including exposure to social justice challenges in communities, understanding how to use the law for redress and repair, understanding the limits of the law as a means of social redress, managing time, being well-prepared, preparing documentation carefully, communication skills, research skills, lifelong learning orientation, ethics, emotional balance and emotional intelligence. the capability includes being respected as someone with legal knowledge, as a lawyer, and being valued by clients. alan commented that the candidate attorneys speak of valuing ‘the huge sense of respect for what they are doing as attorneys’. as michael said ‘i feel very valuable, i feel a help to these people’. emotional balance is important, when you are seen as ‘a beacon of hope’ (nomzano), when ‘the hardest thing is that there are certain things we cannot do’ (naledi), and, ‘if you cannot help a client, they have nothing left’ (michael). dineo reviewed article 118 commented that, ‘we get clients who are victims of domestic violence….if i were to carry that emotionally i would break’. the capability also involved being able to to close the legal knowledge gap by communicating, educating, working with and empowering communities to enable their epistemic contributions. these all constitute elements of the capability of legal competence in south africa. being multilingual. in a country with 11 official languages, this capability meant being able to speak more than one language (and especially an african language) in order to enable epistemic inclusion. as nomzano explained, ‘i’m xhosa speaking and the community there is xhosa-speaking so i know that i can use isi-xhosa’. mkhize who did her law degree at fynbos and then joined the yellowwood law clinic commented on the clinic wanting people who were multilingual and she saw it as an opportunity ‘to teach and educate people’. beyond this, candidate attorneys also see themselves as translators of a client's narrative into legal processes and legal language into something their clients can understand. interconnectedness and solidarity. here the focus is on people’s humanness (their ubuntu) as a way of living and being. the capability includes: being recognized and recognizing others dignity and humanity, taking responsibility for and showing care for a wider community beyond oneself and one’s family, being able to develop inclusive relationships with clients, learning from clients what matters for their wellbeing, respect, patience, and being comfortable with diversity. as michael explained, ‘i’ve learned through the law clinic, the people that we deal with are real reviewed article 119 people’. jennifer emphasized humility in dealing with people. ntando commented that you needed to be able to, ‘put yourself in the shoes of anyone who comes before you and anyone who is passing across the street. being willing to be considerate, not selfish. to be willing to live with other people and then be willing to assist where you can’. naledi said that, ‘be kind and understanding, just be patient’. danielle thought it important not to be ‘rude or abrupt as this is not conducive to people’s situation…. it’s going to frustrate them and me’. michael explained further that, ‘if you can listen to people in a way that makes them feel heard, that is the thing they care about’. this includes being ‘a person to rely on’. all this in turn produces fulfilment which matters said mamello, because ‘if i’m going to be working long hours and the work is demanding, it should be something that fulfils me’. transformation. the law, said mamello, ‘needs agents of change’. all interviews valued learning how to make a difference by implementing the law in ways which are fair and empowering, by understanding current and past social and other injustices which bear on practising the law and working together with others in the clinic. the capability includes: making a difference to families and grassroots communities who are vulnerable, a human rather than a money orientation, operationalizing human rights, and enabling agency by litigating with people rather than for them. collective action was also important; nomzano explained that, ‘when voices are speaking collectively the impact is very big’. we find evidence for this capability also in why many decided to become lawyers to help their families and reviewed article 120 their communities. for example, alan was motivated by his father’s struggles with labour relations, with no one to assist him. puleng observed that people in communities were badly served by the law, ‘they get the runaround…i realized noone can actually stand for these people, so if i can, maybe let’s see how i can do it’. she added that she had grown up in a rural village where human rights and the law, ‘was literally close to being a foreign concept….i thought maybe i should study something towards educating and taking it back to my community to let them know that there is the law in place’. naledi had observed her mothers’ struggles to get divorced, ‘it took so long and i saw how much she was suffering, she used legal aid and the experience was not good’. this requires a ‘non-egotistical, nonindividualistic viewpoint of the world and ourselves’, said michael, not prizing status above the human reasons for being a lawyer. the importance of a commitment to transformation also comes through in criticism both of the legal profession and of law graduates for whom it is just a job. thus, michelle said that, ‘if you do not want to make a difference…the law is not for you’. mamello commented that the law clinic not only provides a platform for access to law but also helping clients understand that, ‘there’s so much agency they have. i’m not now going to take all the decisions for you’. it was she said a ‘partnership’, one in which listening to people is crucial because clients ‘are experts in their own lives’. michael explained that, they should enable access to the law ‘as well as [clients] getting educated about the law and opening the “bubble” to everyone’. he thinks reviewed article 121 access to justice impacts on the wellbeing of whole families, commenting that, ‘you would see sometimes there’s a hopeless client, and then you do that one thing for them…they come with the assumption that it won’t be sorted out. so, when it’s sorted out, the value is not only in their lives but their children’s lives, that is something that will go on for very long time’. finally, alan confirmed the importance of, ‘having a real impact on someone’s life or a lot of people’s lives’. we can map and compare legal capability clusters; the set identified above by ulc attorneys and candidate attorneys aligns well with dignity, repair and epistemic inclusion. there is less alignment with watkins (2021), not surprisingly as the context is europe. we think our set can incorporate watkins, as well as wolff and de shalit’s (2007) two legal capabilities. of course, the comparison is not really that neat as capabilities intersect and are multi-dimensional. table 2: aligning and comparing capabilities capability set for access to justice capability set identified by south african ulc candidate attorneys & attorneys watkins (2021), europe wolff and de shalit (2007), uk and israel interviewees dignity transformation living in a law-abiding fashion; understanding reviewed article 122 the law repair legal competence, including professional recognition knowledge/educati on; reasoning; research; planning; assessing; fortitude; influence/ communication. living in a law-abiding fashion; understanding the law epistemic inclusion interconnectedness and solidarity; multilingual recognition living in a law-abiding fashion; understanding the law what then have are four ‘thick’ capability dimensions (column two) which our interviewees have reason to value for making a professional contribution to transforming society. they align well with the broad capability set (column one), as we show in table two above. 2.4. the contributions of university legal education and training in the light of these two capability sets identified thus far, what do universities (and ulcs) provide in forming and fostering these professionally-focused capabilities and the legal education standard of producing ‘critical thinkers and enlightened citizens with a profound understanding of the impact of the constitution on the reviewed article 123 development of the law’ (che 2015)? we looked at this across intersecting spaces of classroom, campus and community (mccowan 2022). classroom space all interviewees had gained a legal qualification and the valued functioning of being able to practice law after their candidature. for many from working class backgrounds, it was the ulc which enabled their candidature place after a period of being unemployed. across the different universities, there was considerable variation in what they had gained from their law degree. in some cases, lecturers had made the links to the constitution and transformation but not in all cases or all the universities and generally not transversally across subjects. similarly, an ethos oriented to transformation was uneven and seemed strongest at mahogany and forest but was also emergent at marula and mopane. on the other hand, classroom (and campus) spaces enabled meeting diverse people so that, ‘people you meet in studies are the very people that create the practitioner that you will be, the moral compass you will hold’ (michael). some had had the opportunity to reflect on their own middle-class privileges. for example, jennifer explained that, ‘being white i grew up in a certain way where i was very shielded from what was going on, the inequalities there are. coming into university was a kind of culture shock….i learned that my story is not the only story there is, and my reality is not necessarily the reality of others. my one friend said that we always thought that we’re all in the same boat for the same storm but in fact we’re in the same storm with different reviewed article 124 boats. basically, what i took away is not to take for granted what i have. but also, not to expect others to be as privileged as i am’. abongile commented that, ‘being at university you get to see the injustices of how unequal the society is. it’s more in your face in the university space…i was very naïve about that at high school, it was mostly at university that i realized how unequal our society is’. for some, their university experiences were shaped by whether or not they felt they belonged; this is more challenging for young people from low-income homes (walker et al. 2022). for example, fundiswa who had studied at baobab said she had felt like a ‘refugee’ during her studies, while sindiswe struggled through her degree at karee and just ’kept her head down’. the most engaging teaching adopted discussion methods and critical thinking, such as in jurisprudence and customary law. for example, nick who teaches part-time in the karee law faculty, described discussing legal cases with students such as the strictures around civil and customary marriage law: ‘you challenge them, you tell them the law says this and you can see that they don’t agree, and you can see them start to think about it….i think exposing them to these cases and having conversations, creating a space for dialogue is important….why does the law work this way’. such opportunities for class discussions were uneven but welcomed, so that you could ‘learn to think on your feet’ (jennifer). a number of interviewees were studying for masters degrees in law and finding the experience rather different from their undergraduate study. puleng explained that there is more participation and engagement and they are reviewed article 125 learning how to do research. in her case she always looks forward to her classes, however tired she is after a day at the ulc. michelle had done her masters abroad and was initially seriously shocked by the challenges of learning independently compared to her degree. for many, the teaching had been dull, the lecturer, ‘just read what is in the textbook until the hour had elapsed’ (puleng). this is not to say that learning content through lecture-based methods was not valued or uniformly dull and some of the interviewees spoke favourably about lecturers who ‘know their stuff’, who communicate legal knowledge, or who practice themselves. good lecturers made even dryer subjects like insolvency law interesting at mahogany, drawing on real life examples such as the collapse of south african airways. overall, access to legal knowledge was understood as necessary. jennifer explained that, ‘it’s good to have the theoretical background, to have the knowledge and an idea of where to start’. some valued an orientation to lifelong learning. thus, mamello commented that, ‘what my law degree taught me is how to continuously learn. it was clear to me very early on at mopane that i’ve committed myself to a journey of lifelong learning’. it was also important to understand or learn how legal theory works out in practice, bridging the theory-practice gap which everyone mentioned, including enabling a client to understand the legal process. both nick and michelle commented on this, that, ‘this is the law, but this is how it actually gets done in actual lives’. as michael explained, when we lose sight of the process, ‘we forget about the human’. reviewed article 126 decolonizing or expanding the law curriculum to take on issues such as epistemological diversity or lgbtqi+ spaces was very uneven and surprisingly limited. at mopane, mamello felt introducing these debates, ‘it just opened me up to different kind of consciousness’. this was not everyone’s experience. others felt the curriculum was too fragmented, with subjects not connecting to each other, for example commercial law not addressing transformative constitutionalism. very little was said about decolonizing the curriculum apart from mopane introducing epistemological diversity, and mahogany teaching critical race theory debates. the educational obstacles raised for a transformative legal education were numerous, as told to us: a crowded curriculum; a lack of attention to developing critical skills; law faculties that operate as silos not connecting with the social sciences or humanities; and the gap between theory and practice. for nick the ‘detachment’ of a silo-ed field is also ‘a detachment between the effect of the law on a person… you don’t learn the tools to sit with a traumatized person’, while many interviewees mentioned that transformative constitutionalism was not evident across all subjects. overall, the classroom space was uneven in contributing to quality in legal competence, interconnectedness, multilingualism (all teaching was in english except at yellowood where it was also in afrikaans), and transformation capabilities and also public values. reviewed article 127 campus space like the classroom, campus space experiences were uneven. not all of the interviewees had involved themselves in campus activities: they did not realize the opportunities were there, or they could not afford them, or coming from low quality schools, they felt they needed to focus on their studies. thus, puleng said, ‘i didn’t know about a lot of things that could be done while doing the law degree. i just came here to get my degree and then i had to work my way up again to start learning how things actually work’. for some societies students had to pay to join and this was not affordable for all of them. where they do this or where conversion factors work such that opportunities can be taken up, they seem to gain a great deal, such as at mopane. for example, mamello appreciated the diverse student culture at her university, with specific opportunities for activities such as being chief justice of the students’ constitutional tribunal located under student affairs, ‘just seeing how students got really engaged, opened my mind to realizing that we are young adults going into the working world and we are the ones that are going to be shaping this country….i’m fortunate to have gone to mopane because there was really good and robust organized student life and governance’. also at mopane, michelle mentioned how the legal society organized ‘transformative talks’ and ‘controversial conversations’ (for example, legal issues around the 2012 police shooting of striking miners at the marikana mine (see https://www.sahistory.org.za/article/marikanamassacre-16-august-2012). in her studies at mopane, dineo participated in what reviewed article 128 students called the ‘legal shebeen [drinking tavern]’, not obviously a shebeen for drinking but held every friday for students and staff to discuss topics of significance, such as sexual assault. she also took part in students for law and social justice which provided an opportunity to have conversations about the law, ‘and to question the law with people who could actually make a difference, for example the government department for justice and constitutional development’. community space in this space, experiential and continuing learning are especially important, and the ulcs do an important job. typically, the clinics deal with evictions, contracts (e.g. insurance), marriage and divorce, mediation, and for some, refugees. of course, not everyone chooses this route, so it then becomes important to include communitybased learning in the degree as well. for example, karee now has a street law module for undergraduate law students. nick explained how this works: ‘that experience of connecting with someone or sitting across from someone. going into a community and being greeted as an old friend even though they’ve never met you before, significantly changes the way you view that community. especially if you never been, besides driving past or reading about it. even the students who come from those communities, and already have that impetus to change things, you see them come into their own’. he also spoke about how community-based learning also allows students some control over their learning in that they can organize their own community service with an ngo, which, ‘empowers this student to make a reviewed article 129 difference in the field they want and not just feel like an observer fulfilling a predecided course requirement’. as candidate attorneys in the ulc, there is the opportunity to make mistakes and to be supported throughout by a supervising attorney, to learn how to be a lawyer and how to do as a lawyer. this community learning space fosters ubuntu, you learn, ‘how to acknowledge other’s humanity….how to treat people very respectfully’ (jennifer). dineo commented that the clinic ‘is shaping me to become the lawyer that i think my grandmother would be proud of’. from our interviews we thus found that interviewees valued being able to learn and to know the law and to be and to do as lawyers in operationalizing the professional capabilities they valued as a contribution to equitable access to justice. as we explained, this occurred across intersecting rather than stand-alone spaces of classroom (formal learning), campus (student associations, extra-curricular activities, life on campus. etc.), and community (service learning, community-based learning and projects, working in a ulc, working in and with communities, etc.). while this was uneven across different universities and for diverse students during their degree studies, experiences of working in ulcs was uniformly positive and empowering for candidate attorneys where they experienced being recognized as legal professionals and as the bearers of knowledge about the law. together, classroom-campus-community spaces can –if they work well transform the students who come to university. for example, michael explained how for him, reviewed article 130 university, ‘created the person you see before you…because of the circumstances of my life, i was very heated....law made me realize that you need to be disciplined….i grew into my studies’. we can also see how these education processes and practices can help realize the valued capabilities for lawyers, which emerged in our interviews: transformation, interconnectedness and solidarity, multilingualism, and legal competence. professional capabilities and education can potentially contribute to forming the general capabilities of others (dignity, repair, epistemic inclusion) for equitable access ot justice. this should be underpinned by the african ethic of justice of ubuntu, contributing to the public good as envisaged by the standards for law degrees (che 2015), and to operationalizing transformative constitutionalism (figure two). reviewed article 131 figure 2: intersecting capability sets and education processes the conversion factors (and see walker and mclean 2013, walker et al 2022) which emerge objectively and subjectively across society and higher education and which may be enabling or constraining for forming all these capabilities and exercising functionings, are quite severe: the legacy of colonialism and apartheid, materialism, poverty, inequality, and unemployment all get in the way. at the university level, quality of degree (curriculum, pedagogies, ethos), campus opportunities and community spaces for learning can work in disabling or enabling ways. what came out in our interviews are the gaps in the processes, practices and processes of university law degrees, notwithstanding the major contribution to professional learning and knowledge by the ulcs. the constitution and the standards ought to be and can be enabling factors. still, the task is not easy. general capability set (dignity, repair, epistemic inclusion) university legal education and training processes and outcomes to learn, to know and to do and to be as a lawyer professional capabilities (legal competence, interconnectedness & solidarity, multilingualism, transformation) reviewed article 132 nonetheless the intersecting dimensions above might be used as an informationally rich, justice-facing lens for higher education and training, a tool to develop and evaluate change, and an aspirational architecture for transformed education and training and practice. they might be used as the basis for debate and dialogue across stakeholders where the purpose is to form lawyers who can work to enable equitable access to justice. such work must always take account of conversion factors which shape conditions of what is possible, of basic capabilities of access to housing, health care, food and water, and schooling, while always keeping in view the architectonic importance of realising human dignity in and for a society undergoing postapartheid and postcolonialism transformation struggles. they may be relevant to nations facing similar challenges. conclusion what repair and reparative futures specifically ask us to do is to look to the future, futures which can be more just than the present, and to work individually and collectively to bring about this alternative future, even though as nick said, the law ‘is often backwards looking…it’s very difficult for the law to be forward-looking’. michael put it well when he explained that, ‘we need to try and look into the future, before we are there, in ways that can change the law’. he explained the idea of reparative futures well: ‘we can’t go back but we can start from the moment we are in and then in doing so create better future that will create a learned [about] past and more extrapolated lessons from those past injustices to make our daily life and our reviewed article 133 future life better’. for him the law provides ‘tools and mechanisms’ for equitable access to justice over time as more as more people are given justice, while the constitution provides the framing values. we think our capability sets provide a metric for equitable access to justice and the basis for dialogue about the corresponding contributions of higher education and training and of the lawyers who graduate from universities. as habbig and robeyns (2022) argue, legal capabilities can potentially play an important role and take into account whether people have a genuine opportunity to access justice. we think our normative general capability set grounded in constitutional values and south africa’s history provides depth to this claim by suggesting professional capabilities and the capabilities legal practitioners need to develop themselves to secure equitable access to justice, while also revealing the educational and social obstacles that stand in the way and which we need to work to remove. working together, these capability sets for legal practitioners and university education and training might generate new transformation pathways as a contribution to dismantling existing inequalities, historical exclusions and injustices. as the standards for law degrees (che 2015) envisage, graduates should be equipped with the capabilities and values to be able to take on the responsibility of working towards achieving social justice for everyone, with the responsibility to act on behalf of those who do not get the opportunity to enjoy rights and freedoms. reviewed article 134 acknowledgements our thanks to the national research foundation, south africa for funding under grant number 86540, and to everyone who agreed to be interviewed. references atkins, d. (2021) reimagining the relationship between legal capability and the capabilities approach. international journal of public legal education, 5 (1) 1-33 council on higher education [che] (2015) 2015 legal education qualification standards. available online at https://www.che.ac.za/sites/default/files/draft%20standards%20for%20llb%20v8fin al_ready%20for%20public%20comment_20150807.pdf davis, d., cheadle, h. and haysom n. (2005) south african constitutional law: bill of rights, 2nd edition. south africa: lexisnexis butterworths freire, p. (1970) education as a practice of freedom. montevideo: new earth fricker m (2015) epistemic contribution as a central human capability. in: g hull (ed.) the equal society. cape town: uct press. pp. 73–90 habbig, a-k and robeyns, i. (2022) legal capabilities, journal of human development and capabilities, doi: 10.1080/19452829.2022.2082392 mccowan, t. (2022) teaching climate change in the university, transforming universities for a changing climate, working paper series no. 8 https://www.che.ac.za/sites/default/files/draft%20standards%20for%20llb%20v8final_ready%20for%20public%20comment_20150807.pdf https://www.che.ac.za/sites/default/files/draft%20standards%20for%20llb%20v8final_ready%20for%20public%20comment_20150807.pdf reviewed article 135 mandela, n. (2002). nelson mandela speech at the 90th birthday celebrations of walter sisulu. johannesburg. online at http://www.mandela.gov.za/mandela_speeches/2002/020518_sisulu.htm maphosa, r. and nhlapo, n. (2020) transformative legal education in the south african context. pretoria student law review 14 (1), 12-30 matolino, b. and kwindingwi, w. (2013) the end of ubuntu. south african journal of philosophy, 32 (2): 197-205 metz, t. (2014). ubuntu: the good life. in encyclopedia of quality of life and well-being research (pp. 6761–6765). springer+business media mubangizi, j.c. and mcquoid-mason, d.j. (2013) the role of university law clinics in public interest litigation, with specific reference to south africa. journal for juridical science 38(1):47-66 nussbaum, m. (2000) women and human development. cambridge: cambridge university press nussbaum, m. (2010) not for profit: why democracy needs the humanities. princeton nj: princeton university press ramose, m. b. (1999). globalisation and ubuntu. in african philosophy through ubuntu (pp. 160–165). mond books http://www.mandela.gov.za/mandela_speeches/2002/020518_sisulu.htm reviewed article 136 republic of south africa [rsa] (1996) rsa constitution. online at https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdfsen 1990 robeyns, i. (2017) wellbeing, freedom and social justice: the capability approach reexamined. cambridge: open book publishers zikode, s. (2011) poor people’s movement and the law. online at http://abahlali.org/node/8551/ sen, a. (1999) development as freedom. oxford: oxford university press sen, a. (2009) the idea of justice. london: allen lane spelman, e. (2002) repair; the impulse to restore in a fragile world. beacon press: boston spriprakash, a., nally, d., myers, k., and ramos-pinto, p. (2020) learning with the past: racism, education and reparative futures. paper commissioned for the unesco futures of education report sulmasy, d. (2013) the varieties of human dignity: a logical and conceptual analysis. medical health care and philosophy 16, 937–944 walker, m. and mclean, m. (2013) professional education, capabilities and the public good: the role of universities in promoting human development. london and new york: routledge https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdfsen%201990 https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdfsen%201990 http://abahlali.org/node/8551/ reviewed article 137 walker, m,. mclean, m., mathebula, m. and mukwambo, p. (2022) low-income students, and higher education in south africa: opportunities, obstacles and outcomes. stellenbosch: african minds wolff, j. and de-shalit, a. (2007) disadvantage. oxford: oxford university press reviewed article 176 the family law clinic at ucc understanding the law, in the classroom and beyond louise crowley* introduction shulman extols the benefits of ‘empirical propositions’1 emphasising the value of interrogating teaching approaches with a view to establishing evidence as to how students learn, and in turn crafting effective ways to teach. this article critically explores the design and assessment approaches adopted in the delivery of the family law clinic module at the law school, university college cork and interrogates the impact of these approaches on student learning. in carrying out this action research, the decision to utilise universal design for learning as the underlying scholarship of teaching and learning framework allows the pedagogical approach adopted to be deconstructed and critically examined. the capacity for student involvement in the teaching journey which is premised upon the ideology of learning and teaching as community property will be explored, both from a theoretical perspective and also from a socio-legal viewpoint. it will be shown that empowering the students to direct the module and assessment content serves to awaken their social awareness and their understanding of their role as pro-social contributors. following an exploration of these aspects of sotl thinking, the * louise crowley is senior lecturer at the school of law, university college cork, ireland. 1 shulman ls the wisdom of practice: essays on teaching, learning and learning to teach (ed. wilson s) (2004) (san francisco) jossey-bass at 148, 149. reviewed article 177 student learning experience will be explored through a number of qualitative research methods, namely individual student interviews post completion of the module, individual student reflective journals and the testimonial experience of external parties who utilise the family law clinic research services. these approaches to understanding the student experience will serve to demonstrate the unique approach adopted in the family law clinic that gives rise to a unique student learning environment and holistic student development. methodology researching the clinical legal education experience is very necessary “to ascertain whether it does offer the skills and insight into a practical vision of legal practice which classroom education fails.”2 in measuring the ‘success’ of the family law clinic as an innovative and progressive pedagogical approach to the teaching and learning of family law, the experience of both its students and external partners have been explored through a number of qualitative methods. reflective journals are maintained by the students during the delivery and completion of the module, and these personal student reflections are investigated to determine the impact of the clinic. as research methods, these reflections have been supplemented by individual interviews with students upon completion of the module,3 to further interrogate 2 marson j, wilson a, van hoorebeek m; “the necessity of clinical legal education in university law schools: a uk perspective” [2005] journal of clinical legal education 29-43 at 30. http://shura.shu.ac.uk/2902/1/marson%2c_wilson_-_necessity_of_clinical_legal_education.pdf 3 ethical approval was secured from the ucc social research ethics committee to invite students who had completed the module to participate in this research on the impact of the family law clinic http://shura.shu.ac.uk/2902/1/marson%2c_wilson_-_necessity_of_clinical_legal_education.pdf reviewed article 178 their learning experience.4 the external assessment of the student efforts and the impact of their work will be commented upon by the clinic’s clients; legal practitioners and those engaged with law reform activities, together with the informed academic expertise of the module external examiner. these qualitative research methods will facilitate a critical analysis of the impact of this pedagogical approach which aligns with the view that learning lies not only in understanding the law and legal principles in their own right, but by elevating that knowledge to an awareness of its application in practice, which schon suggests exposes students to “a kind of rigor that falls outside the boundaries of technical rationality”.5 as a pedagogical approach to teaching and learning. the participation was voluntary, and all data was anonymised for the purposes of analysis. the following approved indicative question were provided in advance to the students, and these were the question posed to the participating students at interview: 1. have you previously taken a module which required you to develop legal resources for the community? 2. do you think students have a contribution to make in the law-making process? 3. what insights have you gained into the role and responsibilities of a family law solicitor? 4. from your experience of law in action during the family law clinic, how accessible do you regard the legal system for irish people? 5. how crucial is access to information in securing access to justice? 6. what are the pros and cons of providing an online information hub on all aspects of family law? 7. can you reflect on your learning experience through completing the family law clinic? 4 the interviews are voluntary in nature, and do not form any part of the module assessment requirements. the reflections and feedback inform the annual review of the family law clinic which is critical to ensure that quality enhancement is always to the forefront of the module review. it is well recognised that as an approach to analysis and research that “interviews give rich, insightful, albeit anecdotal evidence about how people feel and act. interviews provide persuasive insights and direct quotes from people who “were there.” “how to conduct interviews for research” designing information to engage, educate and inspire people https://thevisualcommunicationguy.com/2018/01/30/how-to-conduct-interviews-for-research/ 5 donald a schon “knowing in action – the new scholarship requires a new epistemology” change nov/dec 1995 at 29. https://thevisualcommunicationguy.com/2018/01/30/how-to-conduct-interviews-for-research/ reviewed article 179 clinical legal education the family law clinic at university college cork was developed to provide students in the llm (children’s rights and family law) with the opportunity to contribute to the “intricate ecosystem of legal advice”6 within the irish legal system. in ireland, the professional legal services regulations restrict the capacity for a university-based law clinic to provide legal advice directly to the public and consequently such clinics more typically provide research services to legal professionals who utilise that research as part of their representation of their clients.7 the provision of information to the general public, as distinct from advice, is entirely permissible and the students fulfil this role through taking responsibility for the content of the dedicated clinic online information hub and related resources, outlined below. whilst students attend university primarily to gain a knowledge and insight into their chosen discipline, to graduate and progress their career, the understanding of what that career choice entails can often be lacking given the limited scope of classroom-based learning. the exposure of students to the functioning of the legal 6 drummond o and mckeever g “access to justice through university law clinics” ulster university law school (2015) at 14. https://www.ulster.ac.uk/__data/assets/pdf_file/0003/132654/access-tojustice-through-uni-law-clinics-november-2015.pdf 7 section 46(1) of the legal services regulation act 2015 mandates that legal practitioners (defined as a practising solicitor or practising barrister) must hold professional indemnity insurance to lawfully provide legal services, including legal advice. legal advice is defined as any oral or written advice …but does not include an opinion on the application of the law provided by a person to another person in the course of – (i) lecturing in our teaching an area of the law, as part of a course of education or training. https://www.ulster.ac.uk/__data/assets/pdf_file/0003/132654/access-to-justice-through-uni-law-clinics-november-2015.pdf https://www.ulster.ac.uk/__data/assets/pdf_file/0003/132654/access-to-justice-through-uni-law-clinics-november-2015.pdf reviewed article 180 system through the clinic work permits students to better understand and make more informed choices about their next steps post-graduation. more altruistically, the clinic also provides students with the opportunity to act as information providers and conduits to accessing justice, providing knowledge and supports to individuals who might otherwise struggle to penetrate the complex justice system. wilson has described clinical legal education as the “greatest single innovation in law school pedagogy – and certainly in student learning – since the ‘science’ of the socratic case method was brought to harvard by christopher columbus langdell.”8 donnelly in a 2015 report “clinical legal education in ireland: progress and potential”,9 presents a cross-section of clinical legal education programmes in ireland. he identifies three models of clinic-based learning in irish universities; the placement/internship model which is the most common and least demanding in terms of university resources; the street law clinic which emphasises the provision of information to the public in an attempt to enhance access to justice and the more novel live client model which is slowly developing in ireland.10 donnelly’s report interrogates the work of 10 irish law schools, as well as the approaches adopted by the law society of ireland, the school of law at ulster university and northumbria law school. evidently, as an approach to teaching, law school clinics are growing in popularity in irish universities. clinical education at ucc is expanding with the 8 wilson r “western europe: last holdout in the global acceptance of clinical legal education” (2009) 10 german law journal 823 at 823. 9 donnelly l “clinical legal education in ireland: progress and potential” [2015] nuig. http://www.nuigalway.ie/media/nuigalwayie/content/files/collegesschools/businesspublicpolicylaw/d ocumentsforms/clinical-legal-education-report.pdf 10 ibid at 6. http://www.nuigalway.ie/media/nuigalwayie/content/files/collegesschools/businesspublicpolicylaw/documentsforms/clinical-legal-education-report.pdf http://www.nuigalway.ie/media/nuigalwayie/content/files/collegesschools/businesspublicpolicylaw/documentsforms/clinical-legal-education-report.pdf reviewed article 181 school of law now operating 5 clinics, one at undergraduate level and four at masters level11 as well as a dedicated undergraduate bcl (clinical) degree programme.12 the range of issues covered by law clinics varies enormously and is very often dictated by the research and teaching interests of the clinic directors. additionally, the services provided by clinics will vary, ranging from research services, information provision, advice, and advice and representation. irish clinics also contribute submissions that inform policy and law development at national level as well as contributing to the work of ngos and other such organisations. the 2015 report on the nature and breadth of uk based university law clinics suggests a much greater engagement with individual clients, both in the provision of advice only and in a smaller number of clinics, the provision of advice and representation. clinical education is thus rightly recognised as a vital component of the development of skills and knowledge in an impactful and “authentic” learning environment.13 indeed donnelly 11 the child law clinic, environmental law clinic, family law clinic and it law clinic at postgraduate level and the sports law clinic at undergraduate level. 12 in their 2015 survey drummond and mckeever document the 62 university law schools in the united kingdom which operate law clinics, supra n.2 at 5. 13 vaughan b “developing a clinical teaching quality questionnaire for use in a university osteopathic pre-registration teaching program” [2015} bmc medical education 1-13 at 1. https://bmcmededuc.biomedcentral.com/articles/10.1186/s12909-015-0358-6 https://bmcmededuc.biomedcentral.com/articles/10.1186/s12909-015-0358-6 reviewed article 182 “…unapologetically endorses the popular perspective that clinical legal education is at its best when it is simultaneously purposed to combine 1) the “hands on” teaching and augmenting of practical skills with 2) the advancement of the public interest by endeavouring to improve access to justice for all.”14 scope and activities of lw6614 family law clinic the 5-credit module family law clinic was first delivered to the llm (child and family law) students in semester 1 2015/1615 and involves 12 teaching hours over the semester. generally this consists of six 2 hour seminars, beginning with the annual development and enhancement of the website and related discussions in respect of access to information and justice. the scheduling of the remaining seminars is, for the most part, determined in response to external requests for research support. the tasks undertaken by the clinic are four-fold;16 student contribution to the development and publication of the web-based family law information hub; individual student blogs on contemporary family law issues, contribution to research projects including live family law cases; and the writing of 14 supra n. 4 at 6. clinic-based education is not unique to law, much research has been conducted in relation to clinical education in the healthcare professions. in a study of the theories that underpin clinical education in physiotherapy, patton et al describe workplace learning as “practice, social learning, situated learning and reflective/critical thinking”, which interestingly reflect the components of workplace learning in the family law clinic. patton n, higgs j, smith m “using theories of learning in workplaces to enhance physiotherapy clinical education” [2013] 88 (6) physiotherapy theory practitioner 861-865. 15 the llm (child and family law) was renamed the llm (children’s rights and family law) in the 2018/19 academic year. 16 50% of the module marks are awarded in respect of student participation and class contribution, 25% for the individual learning journal and 25% for their blog post. reviewed article 183 individual reflective learning journals on the student clinic experience. this novel combination of engagement and assessment requires the students to develop skills outside the norm of the lecture room, mandating them to take ownership of their areas of responsibility and to challenge themselves to share their critical understanding of their chosen aspects of family law with the broader public. the flagship piece of work of the family law clinic has been the family law information website www.familylawinformation.ie . this is a new and unique online resource which acts as a central hub for interested parties, by providing a comprehensive information resource on all aspects of family law, including the regulation of marriage, civil partnership and cohabitation, guardianship, custody and access, domestic violence, adoption, relationship breakdown, and all aspects of state provision for families. students of the clinic are tasked with updating the information pages annually, empowering them to address the misinformation and myths surrounding family law, thereby bridging the family law information vacuum that exists in irish society. the website as an information platform was funded by the irish research council under the 2013 new foundations scheme.17 separately, in march 2020, at the beginning of the covid-19 pandemic, the 2019/2020 clinic 17 the choice to develop the web-based resource was informed following significant consultation with interested parties. funding was originally sought under an irish research council funding call for the creation of information pamphlets for distribution to the general public both directly and through state support agencies. however following a round-table workshop at the law school in september 2014 which was attended by public interest bodies, ngos, the court services, legal practitioners and members of the irish judiciary, it became very apparent that many state services including flac, citizen advice bureau and one family already publish a range of relevant information documents. it emerged that the challenge to be addressed was ensuring that a member of the public was aware that these documents exist and could easily access them. it was agreed that by far the most effective development would be to create an online hub that would provide a brief insight into each area of family law, and a roadmap to all relevant state support services and information sources. http://www.familylawinformation.ie/ reviewed article 184 students supported the creation of a dedicated family law covid-19 information hub website, to provide a resource for the public in respect of the revised access and support arrangements in the course of the pandemic.18 the information website is further supplemented with a topical blog post written by each student, addressing a current issue arising in the area of family law, providing an up to date insight into a socially relevant issue of the day.19 these blogs are posted on the website and publicised through the family law clinic twitter account.20 they are also assessed, and contribute to the students’ final grade for the module, representing 25% of the overall mark.21 in contributing to the development and maintenance of the website the students of the family law clinic have been stretched beyond the normative experience of a law student, developing an ability to write not just as a lawyer, but as an information provider to those with little or no understanding of the law. this need to make the law accessible challenges their own 18 https://www.ucc.ie/en/covid19familylaw/ 19 the blog posts submitted by the 2018/19 family law clinic were entitled as follows: supporting the deaf community cultural change is needed. how long is too long in emergency accommodation? guardianship divorce – the living apart requirement legal rights for grandparents pre-implantation genetic diagnosis and reproduction coercive control – the overdue recognition of psychological abuse the benefits of mediation do children have a right to inherit? adoption information and tracing bill: right to identity v right to privacy the proposed reform of the family law courts system in ireland adoption 20 @uccfamlawclinic 21 25% of the overall marks are awarded for the student blog and 50% for the student contribution and effort over the course of the module. https://www.ucc.ie/en/covid19familylaw/ reviewed article 185 perceptions and understanding of the law and activates a very real sense of social responsibility. separately they are also tasked with conducting research for legal practitioners to inform and enhance court applications, and/or policy-based research dossiers as requested by a range of service providers and ngos. the research projects are crafted in response to external requests received from legal practitioners, non-governmental organisations, support services and lobby groups and form a key element of the student learning. student efforts in respect of these research projects are assessed alongside class participation, such participation being encouraged through individual presentations on allocated advance reading, as well as spontaneous contributions to class discussion and guest speakers. finally, students are required to maintain a learning journal which provides them with the opportunity to document their activities and reflect on their learning journey throughout the duration of the family law clinic. by requiring students to engage with both the explanatory and reflective elements of their learning experience, they are encouraged to explore not just the learning in itself, but also to consider the impact of that learning on themselves and on those targeted by the various exercises, developing their awareness of the law in practice, the challenges faced by those who have restricted or indeed no access to information and/or justice and the very real, positive impact of their efforts on individuals, law and policy reform, and on the standards of advocacy in family law cases. the student experiences of completing a reflective learning journal are considered below. reviewed article 186 interrogating the family law clinic as a form of scholarship the activities, student learning and research in action arising from the family law clinic are in themselves a valuable form of scholarship. schon builds upon boyer’s four platforms of scholarship which collectively form his view of the “new forms of scholarship”, promoted by boyer as necessary to challenge the historical epistemology of the modern research university. boyer’s view of the new forms of scholarship comprises four distinct elements. building upon his original premise of scholarship of discovery representing “the first and most essential form of scholarship”, he subsequently identified three additional forms of scholarship: • scholarship of integration what boyer regards as “serious, disciplined work that seeks to interpret, draw together, and bring new insight to bear on original research.”22 • scholarship of application – regarded by boyer as representing the move towards engagement, as the scholar considers how knowledge gained can be applied to problems, and even further querying whether “social problems themselves define an agenda for scholarly investigation?”23 boyer posits the principles of the early 20th century that higher education must serve the interests of the larger community. however, he laments that “all too 22 boyer el scholarship reconsideredpriorities of the professoriate (san francisco jossey-bass publishers 1990) at 19. boyer cites favourably the views of van doren who 30 years earlier had written that “the connectedness of things is what the educator contemplates to the limit of his capacity. no human capacity is great enough to permit a vision of the world as simple, but if the educator does not aim at the vision no one else will, and the consequences are dire when no one does.” it is, boyer notes, “through connectedness that “research” is ultimately made authentic.” van doren m liberal education (boston beacon press 1959) at 115. 23 ibid at 21. reviewed article 187 frequently, service does not mean doing scholarship but doing good”, implying that the two distinct worlds are unlikely to collide. the very raison d’etre of the family law clinic is to dispel this notion through a deliberate learning in action for impact approach. • scholarship of teaching – rather than being regarded as “a routine function” boyer quotes aristotle’s assertion that “teaching is the highest form of understanding”.24 he also references palmer, who regards knowing and learning as “communal acts”.25 commending the scholarship of great teachers he applauds them as they “stimulate active, not passive learning and encourage students to be critical, creative thinkers, with the capacity to go on learning after their college days are over.”26 schon suggests that this approach places an onus on scholars producing the knowledge to do so in a robust rigorous way that validates the scholarship. this in schon’s view demands “a kind of action research” which challenges the existing norms of technical rationality and extends the knowledge transfer and exploration to a new epistemology, a new theory of knowledge premised upon novel methods of learning with broader, indeed braver scope. the family law clinic provides a unique forum for this new epistemology, compelling students to consider both their acquired classroom knowledge in the context of the law in practice. it operates to 24 ibid at 23. 25 ibid at 24, quoting palmer p to know as we are known (new york: harper & row, 1983) 26 ibid. reviewed article 188 shift the student learning from the “high, hard ground [where] manageable problems lend themselves to solution through the use of research-based theory and technique” to the “swampy lowlands [where] problems are messy and confusing and incapable of technical solution.”27 this capacity to encourage intelligence in action, to provide students with the forum to discover the epistemology of practice, that “takes full account of the competence of practitioners…in situations of uncertainty, complexity uniqueness and conflict”28 directs the students towards the “swampy lowlands” challenging them in new and innovative ways. “i found the clinic to be a very enjoyable experience. traditionally, modules i have taken over the course of my undergraduate degree and postgraduate degree help me to understand the law, however, none of them have allowed me to contribute to the law in the way the clinic has done. the engagement with practicing solicitors and the public was something that i have not had the chance to do before.”29 27 donald a schon “knowing in action – the new scholarship requires a new epistemology” change nov/dec 1995 at 28. 28 ibid at 29. 29 student a – learning journal. reviewed article 189 schon regards these new forms of knowledge and action research as crucial to defending the view that teaching is in itself a new form of scholarship. this emphasis on action research is evidently suited to the work of the clinic given the reliance upon multiple forms of engagement with end users; the provision of information to the general public, the research activities on behalf of charitable and non-governmental organisations; the engagement with topical legal issues and publication for public consumption; the policy submissions on emerging areas of family law and law reform; and the pro bono case-specific legal research to enhance advocacy standards in the pursuit of individual and family rights. certainly, in light of schon’s views of action research being the new scholarship, the development and maintenance of the family law information website by the director and students of the clinic can be identified as a form of scholarship in itself. this new scholarship implies action research, and in this context the clinic has a dual mandate – learning in action is evident amongst the students, but equally the research into the family law clinic module and its approach to the delivery of the learning serves as research in action, placing the impact of these innovative practices under constant review both as to how they are delivered as well as how they impact on the student learning experience. “if teaching is to be seen as a form of scholarship, then the practice of teaching must be seen as giving rise to new forms of knowledge. if community outreach is to be seen as a form of scholarship, then it is reviewed article 190 the practice of reaching out and providing service to a community that must be seen as raising important issues whose investigations may lead to generalisations prospective relevance and actionability. if we speak of scholarship of integration – the synthesis of findings into larger, more comprehensive understandings – then we are inevitably concerned with designing.”30 in promoting a more inclusive and imaginative approach to the concept of teaching, bass has called for a fundamental shift in “how one defines teaching as an activity and thus as an object of investigation.”31 he regards the scholarship of teaching as including a “broad vision of disciplinary questions and methods…[including] the capacity to plan and design activities that implement the vision…the interactions that require particular skills and result in both expected and unexpected results.” citing shulman, he agrees that “too often teaching is identified only as the active interactions between teacher and students in a classroom setting….i would argue that teaching like other forms of scholarship, is an extended process that unfolds overtime” and bass endorses his view that this process embodies at least five elements: vision, design, interactions, outcomes and analysis.32 ultimately, in crafting the family law clinic and incorporating multiple modes of delivery, 30 supra n.19 at 31. 31 bass r the scholarship of teaching: what’s the problem? [1999] 1 creative thinking about learning and teaching 32 ibid, citing shulman l “course anatomy: the dissection and analysis of knowledge through teaching” the course portfolio: how faculty can examine their teaching to advance practice and improve student learning. 5-12 at 5. reviewed article 191 student expression and assessment methods, the clinic experience can evolve annually as it responds to legal developments, student contributions and external engagement. as distinct from the restrictions and confines of a set examination, utilising the website as a key learning tool provides the scope to observe how we “do” our thinking, moving students away from “just thinking”. citing kegan and lahey,33 blackshields notes that in this environment, the students and the lecturer can collectively explore their pre-existing assumptions and ultimately integrate practice and theory to allow the students to develop from one way of knowing to another.34 in recognising the social inequalities which can prevent real access to information and thus blockading true access to justice, this journey pushes them towards a greater understanding of their role as law students and as future lawyers, and their capacity to bridge that gap. thus, they are tasked with developing an understanding as to the nature and extent of the issue of information availability, and assessing the impact of the lack of access, and in turn determining how this might best be remedied through their efforts. this approach means that no two clinic years are ever the same – the end goal is agreed, namely access to information in order to facilitate access to justice, together with contribution to law and policy reform. together the problem and the parameters of the task in hand are shared, the 33 kegan r., lahey l.l. “from subject to object: a constructive-developmental approach to reflective practice” in: lyons n. (eds.) handbook of reflection and reflective inquiry. springer, boston, ma 2010 at 434. 34 blackshields d cirtl presentation at creative zone, university college cork 21 november 2017. reviewed article 192 seminar room for the family law clinic module becomes that shared community, to investigate the issues and to craft the student responses. bass35 and shulman36 are both vocally critical of the traditional view of teaching as a private endeavour, considered in more detail in the discussion on learning and teaching as community property below. bass regards an interactive approach to teaching as enabling teachers to not only “know these things” but to have them presented in serious and impactful ways. this in his view encapsulates the essence of the scholarship of teaching. “changing the status of the problem in teaching from terminal remediation to ongoing investigation is precisely what the movement for the scholarship of teaching is all about.”37 in the process of completing the family law clinic module, students move beyond a basic need to understand and apply the law for knowledge sake. and recognise their capacity to utilise their learning for more than just that. 35 supra n. 23. 36 shulman l “teaching as community property – putting an end to pedagogical solitude” [1993] 25 change 6-7. http://depts.washington.edu/comgrnd/ccli/papers/shulman1993teachingascommunityproperty.pdf 37 supra n.23. http://depts.washington.edu/comgrnd/ccli/papers/shulman1993teachingascommunityproperty.pdf reviewed article 193 “the clinic completely bridged the gap between the theory and what is happening in practice. it demonstrated to me that our work in ucc carries over to practice…. it allowed me to grasp the theory more effectively, helping me to better understand rather than ‘slug’ through books and articles alone.”38 by asking the students to accept their responsibility to provide access to legal information, to gauge the public need and respond through updating the website and writing a blog, the students can ‘check in on themselves’ and better understand their capacity to provide access to legal information and in turn to contribute to the public capacity to engage with the law and ultimately to access justice. in so doing the students are ultimately challenged to both understand and contest the assumptions that they and society typically make, and to recognise the elements that facilitate true access to justice and the underlying importance of knowledge, made possible through accessible and available information. “the experience of this module helped my confidence in myself in that the module was “alive” –in that the class linked in with ongoing practice issues, “real” in that it reflected the reality of a poorly 38 student c. similarly, student d reported: “while carrying out the work for the clinic i found new ways of utilising my legal knowledge and skills for the benefit of others who seek legal advice and direction. i learned the importance of using this knowledge to provide quick information to people who require it because of a particular situation that has occurred in their lives.” reviewed article 194 resourced legal system but also highlighted the tenacity of clients in accessing services and the commitment of the people providing the legal services. finally, it facilitated incremental learning and reflective practice, an experience i had gained in my family therapy training.”39 this approach requires group work and collaboration between the students, who have the autonomy to decide the role of each student within each group-based task. this deliberate move away from the traditional independent endeavours of law students caused some trepidation for students “…initially i was a little hesitant about the prospect of group work…”, but serves to both activate and cultivate the important skills required for effective group-based collaboration and has proven a challenge that is successfully embraced by the students, both in terms of experiences and outcomes. “the format in which this module was delivered was particularly enjoyable and i feel beneficial to my learning. within the module we sat around a circular table and the class was for the most part discussion based. the open and informal way in which the class was delivered gave a relaxed feel in which i felt more confident to express my point, ask questions and interact with my classmates – this i feel was very beneficial and a fantastic element of the module. furthermore, the conversational nature of the clinic allowed for a 39 student k. reviewed article 195 great scope of material to be covered in an interesting and insightful way, i really enjoyed hearing my classmate’s experiences and views and i feel it greatly added to my learning.40 utilising universal design for learning to maximise student learning universal design for learning (udl) highlights the importance of the well designed, multi-faceted learning environment, which, where properly planned will in the course of the initial module design identify and incorporate the needs of the diverse student population likely to register for the module, and in so doing avoiding any need for post-commencement adaptation. the student ‘audience’ in the family law clinic is comprised of students from a diverse range of academic and practice backgrounds. annually we have an intake of 10-15 students, with typically half of the cohort being recent law graduates and the remainder coming from professions and practices relating to children rights and family law. in addition to the naturally occurring multiple intelligences amongst all students, this variety of student knowledge and experience further adds to the variance in learning approaches and capacities in the room. the fact that this class is comprised of such diverse learners demonstrates the importance of recognising and accommodating multiple intelligences when developing the module content, delivery and assessment elements. some of the students who work in the professions study on a full-time basis and others take the llm on a 2 year part-time basis with reduced 40 student d – learning journal. reviewed article 196 hours of practice. thus, the module as structured operates to welcome, support and nurture every student and their individual capacities. the importance of accessible learning cannot be over emphasised, incorporating accessibility not only in terms of information but also pedagogy – the design and delivery of the module needing to support learning by all. rose et al emphasise that utilising udl is an important acknowledgment of the importance of the individual learner, who works and learns both individually and within the class based group environment, and where properly utilised, results in a student-centric diverse approach to learning and teaching.41 meyer and rose of the centre for applied special technology (cast) assessed the original seven tenets of universal design thinking and its application within the education context. in so doing, whilst recognising the suitability of udl to programme design, they extrapolated three principles as necessary for the creation of an accessible and wide-ranging module. “the framework for udl…embeds accessible pedagogy into three specific and central considerations in teaching: the means of 41 rose d, harbour w, johnston c, daley s and abarbanell l. “universal design for learning in postsecondary education: reflections on principles and their application” [2006] 2 journal of postsecondary and disability, 19, 135-151 at 136. https://files.eric.ed.gov/fulltext/ej844630.pdf https://files.eric.ed.gov/fulltext/ej844630.pdf reviewed article 197 representing information, the means for students’ expression of knowledge, and the means of engagement in learning.”42 the first principle advocated by meyer and rose is the multiple means of representation. this is an acknowledgement of the responsibility of the lecturer, to present the module learning in multiple ways, to ensure that every student has at least one means of successfully receiving the information, given that students differ in the ways that they receive and understand the information that is presented to them. rose et al reference the many ways and reason for such disparity; “at the extreme are students with disabilities (e.g., those who are blind or deaf), for whom some forms of presentation are completely inaccessible. more prevalent are students who, because of their particular profile of perceptual or cognitive strengths and deficits, find information in some formats much more accessible than others (e.g., students with dyslexia, aphasia, mental retardation). even more common are students with atypical backgrounds in the dominant language, cognitive strategies, culture or history of the average classroom who, therefore, face barriers in accessing information when 42 ibid. reviewed article 198 presented in a manner that assumes a common background among all students.”43 the disparity in starting points of the clinic students, both in terms of knowledge and experience, as well as the learning capacities of each student mandates that multiple approaches to presentation are utilised, including prior reading, lecturer delivery of overview, student presentation to facilitate peer-to-peer learning, visual presentation through powerpoint presentation, use of digital technology and groupbased class discussions. seminars are structured to allow each student, the opportunity to present on, and lead the discussion on a pre-identified topic. this serves a number of learning objectives, firstly; the student leading the discussion, with plenty of notice can prepare with advance reading and is given the opportunity to practice their advocacy and presentation skills, albeit in the relatively safe and familiar environment of this small group of students. secondly fellow students can equally prepare by reading the material in advance, can ask questions of the student presenter and/or engage with the learning from listening to the oral presentation on the day. additionally, guest speakers are invited to present on topics under discussion in class, to present the practitioner viewpoint and their experience of the legal issue under discussion. this marrying of the worlds of academia and practice serves a number of purposes; it emphasises the social significance of the law in practice, triggers an awareness amongst students of their own capacities to effect 43 ibid. reviewed article 199 change including providing access to justice after they graduate, and to recognise their current capacities as law students to contribute to social change through their clinic and other commitments. ultimately this first principle of multiple means of representation aligns with the accepted view that there is no one optimal way of presenting information or transferring knowledge. an awareness of the need for students to receive information in disparate ways is crucial to the creation of a module that can inform all attending students and the incorporation of multiple means of representation serves to provide the students with a positive first engagement with the material being delivered, which in turn better allows meyer and rose’s two remaining principles of udl to be achieved. the second principle is multiple means of expression including expression in action. a key aspect of education across most disciplines is the development of transferrable skills that can be utilised to navigate the learning, and the expression of that learning. the focus of this second principle is a recognition of the multiple means of expression in the development of legal knowledge and the importance of providing appropriate supports and structures to allow for those multiple forms of student expression. limitations in capacity to express knowledge can arise for physical and cognitive reasons, can be personality driven or can be inhibited through fear and/or lack of knowledge and/or capacity. however, the essence of education is the capacity to develop learning and abilities from wherever a student’s starting point is, and thus utilising udl ought to result in an approach which facilitates all forms of reviewed article 200 expression whilst nurturing the development and enhancement of every student. evidently, ensuring capacity and support for multiple means of expression requires a module that provides alternate options for students in developing and sharing their knowledge and views. the family law clinic absolutely strives to provide such a range of opportunities for the students. “the family law clinic provided a different type of learning from the lecture based academic type learning usually associated with an academic course. the family law clinic bridged the academic aspect of law with the practical application of law. the work i undertook at the clinic involved me having to improve greatly on my research skills, it skills, presentation skills and co-working skills. i also learned significantly more about law in practice on a day to day basis. i gained considerable knowledge on a number of areas of law as a result of both the work i undertook on various topics and as a result of the work undertaken by other students. i learned also about group dynamics and the importance of learning to respect other peoples’ positions and points of view.”44 a second, complimentary aspect of this principle is the importance of providing support scaffolding for the students. the capacity for students to develop when 44 student i. reviewed article 201 mentored and guided is well documented45 and the unique opportunities and supports provided in the course of the family law clinic have been expressly recognised by participating students as key to their learning journey and overall abilities within the llm (children’s rights and family law). “my involvement with the clinic has improved my understanding of certain areas of family law as a result of the research i have done for the blog and the website content. it has also improved how i communicate more complex ideas to a varied audience.… i have wholeheartedly enjoyed the experience and have relished the challenge of communicating and discussing the law with the widest possible audience.”46 students are invited to submit all written work and research assignments in draft form for feedback no later than one week in advance of the submission date, in order to highlight any shortcomings, allowing them to avail of an opportunity to learn in action and submit an enhanced piece of work for grading. methodology sessions are also run in conjunction with the module learning, to allow for a broader understanding of the importance of critical thinking when conducting research at 45 “campbell t.a and campbell d.e “faculty/student mentor program: effects on academic performance and retention” [1997] 38 research in higher education 727-742. https://link.springer.com/content/pdf/10.1023%2fa%3a1024911904627.pdf 46 student f in interview. https://link.springer.com/content/pdf/10.1023%2fa%3a1024911904627.pdf reviewed article 202 masters level, and in parallel the students are provided with library and related skills workshops to assist them in conducting relevant and meaningful research and critical capacities. “participating in the family law clinic has enhanced any performance in all my other modules. it has helped me to clarify for myself the law and the issues in that learning environment, enhancing my learning in the more didactic seminars.” the third principle is multiple means of engagement. rose et al note that the differences in student capacities and interests will result in markedly different modes of student engagement and motivation. tasks which require student spontaneity provides the perfect forum for expression for some students but for others they present a frightening and intimidating demand. individual research and presentation tasks allow some students to excel in their own right and present an opportunity for showcasing such strengths. however equally other students thrive in a supportive peer-shared endeavour, buoyed by the different skills presented by each student, resulting in the collective tackling of the assignment with each student adopting the role most suited to their individual skills. “i feel that my public speaking abilities and confidence grew significantly over the course of this module. the small number of reviewed article 203 students in the family law clinic made it easier for me to speak my opinions and give contribution and input when it was required. this is a skill that i feel will continue to benefit me when i am finished my masters.”47 online blogs provide an alternative non-class based, almost private assignment for students to engage with their work, away from the more exposed classroom environment, challenging the students to write in an accessible, non-academic style, without reliance upon legislation, case law or academic analysis. interestingly students report annually that this is their hardest writing task throughout their llm year in that it flips their ‘trained’ academic writing style and demands simplicity of message and style….a mammoth challenge for some but a welcome and refreshing approach for others! “writing a blog was a first for me. i liked the freedom of the genre compared to a typical legal assignment. however, one had to deal with the law accurately. it is still a work in progress as i must incorporate suggestions from dr. crowley into my blog and re-submit it. i never took part in debates, either at second or third level. long ago, before i ever went to university, i was a trade union activist, so i’m used to rough house debates or loud, verbal disagreements. perhaps if 47 student d. reviewed article 204 blogging had been on the scene back then i would have been more successful. as i said i like the freedom of blog writing, but i also like the conventions that stop a blog from being a rant. i do believe that is a new skill i am learning.”48 the quality of the work presented is tremendous, with one student, who had no background in law prior to commencing the llm having her blog published in a national newspaper in 2017.49 evidently the common denominator in the udl approach is the acknowledgment of the importance of a diverse and varied approach to all aspects of teaching and learning in order the recognise and respect the multiplicity of student capacities and the importance of providing a range of opportunities to engage with and express the learning. whilst students are expected to participate and contribute to each aspect of the workload, the format allows them to excel in those areas that suit their capacities whilst working to improve less proficient areas, typically with the support of both peers and the clinic director. accessibility is a multi-layered and complex issue and real effective access occurs on multiple levels and is essential to a complete and comprehensive student learning experience. 48 student e – learning journal. 49 https://www.irishexaminer.com/viewpoints/analysis/grace-case-must-prompt-reform-after-fostercare-scandal-shocked-the-nation-393063.html https://www.irishexaminer.com/viewpoints/analysis/grace-case-must-prompt-reform-after-foster-care-scandal-shocked-the-nation-393063.html https://www.irishexaminer.com/viewpoints/analysis/grace-case-must-prompt-reform-after-foster-care-scandal-shocked-the-nation-393063.html reviewed article 205 “it is not just enough to make classrooms and text books accessible, effective learning environments need to address three main issues. they need to provide information and informational supports that are accessible to all students, provide ways of acting on information that are accessible to all students and provide ways of engaging and motivating learning that are accessible to all students. the udl principles reflect those 3 aspects in the design of learning environments.”50 the clinic is deliberately modelled on the principles of udl and seeks to facilitate and stimulate all participants to maximise engagement and learning. “in reflecting on the learning and self-development that the module has offered, i realise that at a very practical level, this module was very useful as it facilitated both individual and group research in practice. coming to the course without a primary law degree has been at times a bit daunting. this module enabled me to undertake legal research in a manageable realistic manner. as the tasks assigned were not overwhelming, i was able to take each task individually on board, and incrementally build on my research skills and knowledge. having a 50 butler b, mccarthy m what does multiple intelligence’s theory and practice have to offer universal design for learning?” background paper to plenary session on multiple intelligences and universal design for learning 12 march 2019; referencing the work of rose et al. reviewed article 206 social work knowledge also helped as the tasks of the module were real, live and relevant to many parts of my previous work experience. i enjoyed the reading and the group work exposed me to the thinking of a much younger generation, who were generous in sharing their ideas and knowledge.”51 learning and teaching as community property in the first instance, those responsible for the delivery of modules must value their teaching and see it as a community property much like research that is ubiquitously shared and celebrated on the conference circuit. schulman criticises the pedagogical solitude of the classroom, the distinction that is drawn between teaching and research, noting how we share our research amongst a community of scholars yet tend to regard teaching as a more private endeavour. rather he regards learning and teaching as best approached as a community endeavour with students, where possible, recognising the role that they can play in determining the module direction, the scope of the course materials and the achievement of shared objectives. the family law clinic has been designed to provide scope for experimentation of content and allows students to have a say in the direction of the seminar content. in seeking ultimately to enhance access to information and thus justice, the participating students have a valuable role to play in identifying both new projects and the enhancement of existing ones, to fulfil this overarching mandate. this allows 51 student k – learning journal. reviewed article 207 the responsibility for both the content and delivery of the learning and teaching process to be shared between the lecturer and the students. it also allows students to feed into the teacher’s process of problem discovery, as espoused by bass. bass is critical of the notion of teaching as a private endeavour that focuses on the mere identification of solutions to teaching challenges.52 rather he regards the true teaching riches to exist in “discovering problems worth pursuing”.53 bass supports the views of laurillard54 that teaching should not be regarded as a “normative science”; it ought not to be presumed that it can be done ‘right’….rather he states it can be done effectively or ineffectively but always better. such capacity for constant interrogation and improvement underlies the need for the scholarship of teaching movement. similarly, shulman advocates for the creation of artefacts to capture the “richness and complexity” of teaching in order to make it visible in the same way that we celebrate what he refers to as “more traditional forms of scholarship.”55 the family law information website is a vital tool in providing the students with an insight into the challenges faced by ordinary citizens to access and understand the law in order to understand and vindicate their own rights. from a pedagogical perspective it introduced to the design of the family law clinic, a novel, innovative assessment tool to engage with the students and allow them to explore and express 52 supra n.23. 53 ibid. 54 laurillard d rethinking university teaching: a framework for the effective use of educational technology (london) routledge 1993 55 supra n. 27 at 7. reviewed article 208 issues of family law in an entirely different format, and to do so with a significant level of autonomy. by providing the students with the capacity to express their learning in a forum such as the family law information website, they are empowered to bridge the chasm which can restrict public engagement with the law by maintaining and enhancing the tools to assist the broader community. peruginelli acknowledges that the “[l]aw is the operating system of our society” noting how it regulates all human activity and the associated enforcement of all governing provisions. in regarding access to law as “a fundamental issue of social policy” peruginelli concludes that “full availability of legal information represents the strategy to even out access to law for everybody.” 56 the student experience has proven to expose the students to the fundamental importance of access to information as a gateway to access to justice, and an associated realisation that such access can be challenging for many. “the way the law is written makes it inaccessible for many. we need another way; we need to do more. like our work on the blogs for the website, makes it accessible.”57 56 peruginelli g law belongs to the people: access to law and justice legal information management 16 (2016)107-110. 57 student d in interview. reviewed article 209 in maintaining the online family law information hub58 and publishing their individual blogs on topical issues of family law, the students develop an awareness of the importance of law as a tool for civil society but also citizen empowerment, and the threat to individual and societal wellbeing where such access is frustrated or prevented. this civic and community contribution speaks to the express aim of ucc to function as a place of learning in the community and for the community. the ucc civic and community engagement plan “together with and for community” identifies the university’s overarching goal in the period 2017-2022, to become “more connected, visible and engaged with and for community”. ultimately the vision enunciated by ucc is to be a leading civically engaged university, through capitalising on our teaching and learning strengths, and translating our dynamic academic and research leadership into far-reaching community engagement for the good of all.59 student reflections through reflective journals and student interviews the reflective learning journal represents the student account and associated reflections on their family law clinic learning journey. morrison lauds the growing 58 the family law information website www.familylawinformation.ie is essentially an information hub for all aspects of family law. whilst providing a short narrative on the basic rights and/or issues arising under each heading and sub heading, it also acts as a central hub for existing resources within the state, which can be of assistance to those in need. thus, rather than reinventing the already existing information resources, the website acts as a signpost of sorts, directing the users to those existing services. additionally, given the very high rates of lay litigants before the irish family law courts, assistance and information is also provided in respect of court applications, including resources for court forms, details of procedures and possibilities of legal representation. access to information is a very real obstacle for many and where access to information is impeded, access to justice is effectively thwarted. 59 https://www.ucc.ie/en/media/centralmedia/ucc_civic_engage_2017a.pdf http://www.familylawinformation.ie/ https://www.ucc.ie/en/media/centralmedia/ucc_civic_engage_2017a.pdf reviewed article 210 popularity of reflective practice at third level, allowing for student reflection on, and lecturer monitoring of, “personal, academic, professional and evaluative development”, contributing to “notions of student ‘empowerment”.60 as a research method to investigate the learning arising from student engagement with family law clinic activities, it provides a forum for the student voice to be heard through the individual reflections upon the learning journey and the interrogation of these student learning journals is an important aspect of the research undertaken here. the learning journal represents a shift from the social, shared learning space of the classroom space to the personal, more private reflections of each student. in this context students are asked to consider their own role, not only in the classroom dynamic, but also more broadly, allowing them to begin querying their responsibilities as law graduates. this student reflection, both in action and on action, allows for the development of a self-awareness surrounding the student learning trajectory, inculcating a greater awareness of their personal and academic development.61 describing their clinic contributions provides each student with the opportunity to recount the nature and extent of their work, awakening in them if necessary, a 60 morrison k (1996) “developing reflective practice in higher degree students through a learning journal”(1996) 21:3 studies in higher education, 317-332 doi: 10.1080/03075079612331381241 61 in maintaining their reflective journals students are required to present their deliberations in a semistructured format; providing a description of their contributions to the clinic activities and to reflect on their own associated learning as well as presenting their views on the clinic experience more broadly. https://doi.org/10.1080/03075079612331381241 reviewed article 211 realisation of the intense but valuable workload involved in the 12-week experience of the family law clinic. in setting out their contributions, the enunciation of their learning journey begins. whilst the iteration of the various assignments, individual and group efforts is a useful exercise in itself, perhaps more significantly the student reflections on the semester of work commences properly at this point of the journal. their website responsibilities are taken very seriously, highlighting the importance they attach to information hub contributions, in such a challenging and personal area of the law. it is imperative that the information is accurate but also presented in a manner that takes account of how the public will experience the information on the website. the unique approach adopted by each individual student, facilitated by the autonomy that the clinic affords them, starts to become more apparent as the students outline their contributions. student b outlines how in assessing her allocated sections of the website she chose to consult with friends and family members to gain an insight into how the existing content and layout is perceived and understood by the very audience to whom it is directed. “this involved consulting with family members and friends as to the accessibility of the website since the provision of easily accessible information to the public is a key aim of the website. this exercise was hugely beneficial in gaining an insight into the thoughts of those who lacked any prior knowledge of family law and thus enabled me to adapt the website accordingly where required.” reviewed article 212 this innovative and proactive approach illustrates the community property underpinning of the module activities and demonstrates how the module framework encourages independent student research activity. this scope for student novelty is also celebrated by student e when outlining his contributions to the website. “i gave a small questionnaire to 4 people, two of whom were graduates, two not. two were men and two were women. the response was mostly favourable, and the non-graduates said the language was easy to understand.” student d provides a useful overview of the range of tasks and associated skills required in outlining her contributions to the clinic. in particular she references her research work for the national women’s council of ireland and the “valuable learning experience” of working with a classmate on the proposed changes to the family law civil legal aid system. in particular she notes that they “…. came from two different undergraduate backgrounds so i found it very interesting to combine knowledge and experience. furthermore, i found that the knowledge i gained on this area became applicable in other modules and really highlighted the need for the reform of the irish family court system.” reviewed article 213 in outlining her research work for anne marie sheridan, solicitor, in respect of the district court appeal relating to the use of the father’s surname on the birth certificate of the client’s child, student d recounts the experience in positive terms. “what i found most enjoyable about this task was a number of weeks after the activity was completed that solicitor whom we worked for joined us in the clinic. she spoke with us about her work and the outcome of cases that we had worked on. i really enjoyed this aspect of the clinic and found that meeting her in person really made the research process real and for me personally was fantastic motivation at a stage in the year when the work load was high and we were feeling a little overwhelmed.” similarly, referencing her research on the effects of mediation in the context of domestic abuse for the work of the national women’s council of ireland on the proposed new family law courts, student a stated that…”this was one of the most enjoyable assignments that i completed as part of the clinic as i got to research an area that i had not studied before and gained valuable research skills which will be useful in future assignments and my thesis.” the student experience documented in the reflective journals is very impressive, referencing a breadth of learning, including personal development, greater social awareness, and improved communication skills. in terms of social awareness, evidently the various assignments that sought to reviewed article 214 enhance access to information and/or the law taught the students that “[t]he law affects every person and so there must be more investment in ensuring that it is accessible to as many people as possible.”62 the overriding message from the student reflections are the multiple benefits arising from the scope of the learning offered by the combined elements of the delivery and assessment in the family law clinic. the reliance upon group work for the completion of module tasks, introduced a novel approach to study and research for some students, more typically used to independent academic endeavour. “an important skill the clinic has taught me is the ability to work as part of a group. compared to the other modules i have taken in my undergraduate and postgraduate degree, which were usually individually marked assignments, the clinic encouraged engaging with our fellow classmates. the first assignment i worked on involving the barring order question spilt the class in half. this was a great opportunity to get to know some of the other postgraduates. it also gave us the opportunity to utilise our skills and strengths. in this particular group project, i was in charge of editing the question and referencing it. i also found it useful how other people in my group approached the question and we encouraged each other when we 62 student a. reviewed article 215 found new material to contribute to the assignment. the second assignment involved myself and one other student. this was a particularly stimulating assignment as we both approached the assignment from completely different angles. it was also very interesting to be paired with someone who had a completely different educational background to mine.”63 in parallel, the varied means of expression incorporated through both engagement and assessment challenged the students to develop or improve a range of communication skills. “my ability to communicate law in a straightforward and easily understandable manner has benefited from the completion of this module. the process of reviewing the accessibility of the website has enabled me to become more aware of the difficulties some people may have with understanding legal concepts at a time of crisis in which most family law cases will arise. this skill is, of course, essential to the administration of justice and to legal practice.”64 63 student a. 64 student b. student c reported similar benefits: “the clinic also enabled me to identify what my unique strengths are. having studied psychology for my undergraduate degree, it allowed me to develop my skills in communication and critical thinking. throughout the course of the clinic i applied these strengths to the work i was doing in the clinic which in turn allowed further development.” reviewed article 216 a further, very encouraging aspect of the student journals is the evidence that the module as a whole has allowed them to develop not only as law students but has supported their holistic development including aspects of personal confidence and capacity for public speaking. “when reflecting on the clinic i became aware that not only did it improve my understanding of the law but in fact it developed certain aspects of my character, such as my confidence.65 similarly, student d noted the positive impact of the clinic experience on her capacity to express her opinions in a more comfortable and confident way. the student reflections demonstrate a learning experience that is varied, challenging and engaging. it serves as a platform for the personal and academic development of all students, irrespective of their strengths or abilities. it also exposes the students to new ways of learning which has a significant impact on other elements of the llm programme. the inclusion of voices beyond the lecturer and student adds a further dimension to the student education. overall, the unique academic and personal learning opportunities arising from participation in the family law clinic are regarded by the students as positive and worthwhile experiences. their exposure to 65 student c. she also added that “…having confidence in oneself is very important if that person aims to pursue a career in law, so this aspect of the clinic will benefit me throughout my professional career. reviewed article 217 the law in practice and their engagement with practitioners provides an insight not available elsewhere in their university studies. “the family law clinic i believe was the most enjoyable and beneficial module i undertook in semester one of this masters programme. it took a step away from the vastly theory-based modules that have been most predominant in my education thus far and enabled me to connect with the law in a way that was more engaging. this has benefited me to no end and allowed me to see the necessity of knowing the theoretical aspects and their fundamental foundation for the practice.”66 the breadth of the modes of delivery and the varied assessment obligations provide a meaningful opportunity for personal and academic development. ultimately it is evident that the students’ overall learning across the breadth of the modules studied, were particularly impacted by their family law clinic experience. “my experience of this module has been undoubtedly positive. the approach taken by this module is very progressive and unlike any other modules i have completed. the method of assessment and workload mirrors that of a practitioner. often, we are faced with 66 student c reviewed article 218 issues where the answer was not readily available and legal research was essential to finding the answer. this highlighted to me that no matter how knowledgeable or experienced you may be, new challenges will always arise since no two cases will ever be the same! the skills that i have developed through the family law clinic will no doubt assist me in facing such challenges throughout my career.”67 schon contends that one of the reasons for the growing focus on reflective practice in law is that “practice in these professions is often based on rapid action and the proof of expertise in the subjects emerges from the actions taken, not the quality of thought that might have gone into the actions”.68 in delivering content to law students, it is too often readily accepted that transfer of knowledge is the limit of the lecturer’s obligation. conversely, in developing the family law clinic and incorporating the reflective journal element, students are encouraged to not only gain a knowledge of the law, but also an understanding of the social context within which it is both understood and applied. the wisdom developed by these broader insights and the maturity and understanding that it is hoped will evolve from the students’ reflection process, will result in a greater ability to reflect appropriately on the strengths and 67 student b. 68 moon j reflection in learning and professional development: theory and practice (routledge falmer 1999) at 55, citing argyis c and schon d theory in practice: increasing professional effectiveness (josseybass publishers 1974). reviewed article 219 weaknesses of both the legal system and the students’ own capacity to contribute to its effective and accessible operation. “the clinic has been a fantastic experience and has exceeded my expectations. in choosing this module and in general the children’s rights and family law masters, i wanted to get a hands-on experience of the material we would be covering. while each module we have is targeted towards learning and applying the law, the clinic took a different approach by giving a sense of responsibility to the students as the work we were conducting was being presented to people outside of the ucc law school. furthermore … the family law website offers an all-in-one stop of information that is understandable for the public. … being a part of the clinic also provided a sense of pride within myself due to the practical nature of the course, making me aware that i was playing an active part, albeit a small part, in the changes that are needed in the area of family law, which made the work all the more satisfying.”69 by engaging in reflective practice, students develop and foster critical thinking and decision-making skills, not only in respect of their clinic and broader llm learning, but ideally these skills are transferable and applicable throughout their careers. in 69 student f. reviewed article 220 developing a capacity for reflection and associated informed, progressive learning in action, students cultivate skills for continuous improvement and learning. rolheiser et al assert that meaningful learning evolves from student reflection, resulting in “…the capacity for students to improve their ability to think about their thinking; the ability to self-evaluate the capacity for students to judge the quality of their work based on evidence and explicit criteria for the purpose of doing better work; the development of critical thinking, problem-solving, and decision-making; and the enhancement of teacher understanding of the learner.”70 the external practitioner – as clients of the clinic testimonies from external legal practitioners who have relied upon the research services of the clinic provide an external stakeholder critical commentary on the workings and impact of the student endeavours. external engagement is a key component of a successful law school, given the importance of maintaining positive connections with the professions and related service providers, for the benefit of student placements, for the development of positive and mutually beneficial working relationships and to ensure that the broader society also benefits from such collaborations. in analysing the work of the clinic, this objective professional 70 rolheiser, c, bower b and stevahn l the portfolio organizer: succeeding with portfolios in your classroom. alexandria, va: association for supervision and curriculum development (2000) at 31-32. reviewed article 221 feedback provides an important critical perspective of the effect and impact of the work being conducted and can lead to enhanced opportunities to develop future relationships and student prospects. in the 2018-19 academic year the research services of the clinic were utilised by three distinct external legal practitioners and interest groups, namely the national women’s council of ireland, the family lawyers association of ireland and anne marie sheridan solicitor. the clinic dealt directly with ms denise roche, the legal officer in the national women’s council of ireland who reached out to the clinic for research support in respect of two key issues on the council’s 2019 agenda. denise was leading the council’s research in response to the irish government’s stated intention to reform the irish family law courts system. denise identified three distinct approaches worth considering within the irish context. denise’s written testimonial demonstrates the importance of the efforts of the clinic in supporting the work of the national women’s council of ireland, a leading and influential irish public interest group. “the ability to work with a clinic such as this, is essential for me to be able to carry out my role. nwci understands the lived experience of women but in order to accurately represent them, i must be able to underpin their testimony with statistics and factually drawn analysis. facts take time to develop, and given the numerous demands on my role, i have limited capacity to dedicate the required time to develop reviewed article 222 detailed, accurate and comparative research papers. moreover, the ability to produce up to date research requires access to the most recent academic research which means it’s imperative to have access to legal research databases. the cost of these databases is not within the limited financial means of my organisation. therefore, the family law clinic enables me to acquire highly relevant research without having to dedicate the time or resources to develop it.”71 she also acknowledged the multiple benefits of this approach, not only in terms of teaching and learning, but also the benefits that accrue to students at this pivotal time of their career, often on the brink of making career path decisions; as well as the positive impact on the work of the nwci and on society more broadly. “i think this clinic is also of benefit to the students. they can see the practical application of their work and how essential it is to be able to produce accurate, detailed and rapid information. it also offers them an insight into the workings of small organisations, and the importance of well-developed research and writing skills. i hope as 71 additionally, roche referenced the reputation of the clinic director in the field of family law research and teaching and noted the weight and credibility that this attaches to the work of the clinic as a whole. “i felt confident in relying on the information provided because it was delivered under the supervision of louise crowley. a highly qualified academic who understands the feminist perspective that nwci wishes to communicate through all our work. i can confirm that the research i received was produced within a short timeframe and cut straight to the core of the issues.” reviewed article 223 they move through their careers that this helps foster in them the importance of engaging in pro bono work. much of what i am able to achieve in my role is as a direct result of lawyers, academics and students offering their expertise for free. i hope to be able to work with the clinic into the future particularly as the reform of the family court system continues.” in october 2018 the irish family lawyers association approached the clinic to seek research support in advance of their annual national conference which the ucc school of law had agreed to host on campus in february 2019. the theme of the conference was the enforcement of family law orders and the clinic was tasked with providing an international comparative perspective for the workshop discussions. diverse and effective approaches to enforcement were identified in four distinct jurisdictions; canada, denmark, sweden and new zealand and the students worked in groups to conduct in-depth research and produce a dossier which, once approved by the director of the clinic, was made available to all attendees at the conference. the research dossier formed the basis of a broad and well-informed debate on the future direction for the enforcement of family law orders in irish courts and the quality of the research was highly commended by those in attendance.72 72 “the students' preparation of the dossier of research was excellent and a very helpful tool in structuring the discussion.” (sarah fennell bl – conference organiser) reviewed article 224 finally, the students had a valuable multi-layered learning experience in collaboration with anne marie sheridan solicitor, in relation to two district court appeal cases which required research support and an ongoing inter parent dispute concerning the home schooling of their child. the first district court appeal related to the legal capacity for an individual to make joint applications for remedies in the context of domestic violence allegations, to ensure that one remedy would ultimately be secured. the second case, related to the right of a mother, not married to the father of her child, to use the father’s name on the birth certificate of the child, without the father’s consent. additionally, in the latter case, it was queried whether the court could over-rule any objections of the father and compel the registrar of births deaths and marriages to register the birth in the father’s name. as distinct from the research conducted for the national women’s council of ireland and the family lawyers association, and indeed most research in the course of their llm generally, this engagement with anne marie sheridan exposed the students in a most unique way to the operation of the law in practice. their understanding of the usefulness and impact of their work was vividly illustrated by anne marie when she subsequently attended a clinic seminar to provide the students with this insight. anne marie reported her capacity to utilise the research to both negotiate effectively and present enhanced legal arguments to achieve successful outcomes for her clients. the students in turn, whilst benefitting from completing the research assignment, also gained a valuable understanding of the process involved, including factfocussed research, the reality of contemporaneous twin approaches of negotiation reviewed article 225 and proceeding to trial, and an insight into the broader challenges of family law litigation. equally satisfying was the mutuality of this benefit as espoused by anne marie in her reflections of the experience. as a busy family law practitioner, she captures the importance of the clinic research and the manner in which it enhances the level of advocacy in the lower courts, where because of the workload pressures, the time to engage in vital research in respect of family law issues is typically impossible without support. “the key to the district court is to have each case prepared fully in advance of the court. i have been able to seek the assistance of the flc to research the law and the case precedents to assist me in running the cases. it also gives me the option of a complete fresh look at a set of facts and sometimes a completely different outlook on the case.” with reference to presenting an issue for determination not previously addressed by anne marie, she notes the significance of the clinic contribution to enhance her capacity to present the best case for her client. “this year, i was retained by the legal aid board to act on behalf of a client seeking to home school her son. her ex-husband did not consent. the flc and members of the ucc staff were of huge assistance in my preparation. i was fortunate enough to have the opportunity of reviewed article 226 meeting with the students and giving them the feedback of the cases which we had worked on together. having the personal connection with the students and dr. crowley opens the way to maintaining a mutually beneficial relationship.”73 external academic examiner finally, the views of the academic external examiner of the module and the broader llm programme ensures that the context of the family law clinic is always to the forefront, that whilst it operates as a service for the public and the professions, it remains embedded in the academic llm programme on children’s rights and family law and thus must always serve the interests of the students as an academic module which enhances their learning and their postgraduate experience more broadly. all aspects of the student learning experience are considered by the external examiner who must be satisfied as to the depth of the student learning and their ongoing engagement with academic learning, albeit in the context of that learning impacting on law in practice. 73 the commendations of anne marie sheridan provide an endorsement not only of the work of the clinic but also the way the clinic is conducted. this speaks volumes about the students’ commitment and dedication to pursuing the fundamental goals of the clinic and serves as a welcome validation of the merit in adopting this approach to developing the skills of our llm students. “i have recommended the flc to my colleagues who were equally delighted to have such an opportunity open to them. i expect the students are delighted to hear their law in action and make it a living subject for them.” reviewed article 227 professor maebh harding warwick university has commented as follows: “i have always been impressed by this initiative and it is clearly going from strength to strength. it is great to see such engagement and impact. you have clearly got a very engaged bunch of students. i thought that the work i read was of a very high standard.”74 conclusion “the clinic opened up my mind, and it never switched off”75 the family law clinic at university college cork represents a deliberate effort to engage with postgraduate students in a manner which empowers them to better understand the challenges of pursing legal remedies and to explore their capacities to support access to the intricate irish legal system. by creating a module design which requires students to contribute to public knowledge and engagement, the clinic seeks to achieve the complementary goals of scholarship and community of learning through multiple means of representation, expressions and engagement.the experience to date in delivering the module is that it has developed into a key aspect of the student learning, providing llm students with a novel and innovative space to explore the law in practice and to better understand the significance of access to the law and the dangers that exist for those who are 74 feedback received on student assignments submitted in the 2018/19 academic year. 75 student b. reviewed article 228 prevented from accessing information, and thus justice. through qualitative research methods the process of designing and delivering the clinic, which goes beyond the transfer of legal knowledge and seeks to deliver that learning in a practical context has been explored and has sought to provide considered insight into the student learning experience. it has been demonstrated that the student learning in the course of completing the family law clinic has impacted positively on all other aspects of the llm experience and activates a process of learning in action and longer-term reflective practices in the participating students. in creating multiple avenues for the students to amass and present their learning to a multiplicity of audiences, they are provided with an opportunity to recognise their capacity to use their law school education, and in particular the clinic setting to enhance the community experience of justice. citing cooper j and trubek l, webb stresses that legal education needs to be seen as a process of “educating for justice … citizens’ access to justice must in part be predicated on the ability of lawyers and judges themselves to show an understanding of and commitment to “justice”.76 interestingly webb regards the development of that commitment to justice as a function of the universities that must be incorporated in the legal education provided. in better understanding the importance of real access to information and thus justice, the students in the clinic develop this better understanding of what real 76 webb j “developing ethical lawyers: can legal education enhance access to justice?” (1999) the law teacher 3:3, 284-297. https://www.tandfonline.com/doi/pdf/10.1080/03069400.1999.9993035?needaccess=true https://www.tandfonline.com/doi/pdf/10.1080/03069400.1999.9993035?needaccess=true reviewed article 229 justice means. they begin to understand the law in context, the role of the law in the community, as both as a social tool and as a means to vindicate and protect individuals. the over-arching message is that law in itself does not operate to secure rights, securing rights necessitates real access and an understanding of the context and application of the law, and the clinic provides the insight into this reality. remembering always that “if all we teach students is law, we cannot expect them to practice justice…”77, the family law clinic has been designed to broaden student learning and empower them to develop a sense of community awareness and responsibility that transcends their student lives and remains with them long after graduation to direct the use of their enhanced awareness, knowledge and skills.78 77 ibid at 286, referencing the works of elytis and the need to make explicit, the link between ethics, education and access to justice; elytis odysseus the axion esti (translated by keeley e and savidis g) (1980) london, anvil press. 78 webb echoes this hope, suggesting that we ought to always remember to teach students that lawyering involves responsibility to and for others. reviewed article – teaching and learning in clinic the impact of pro bono law clinics on employability and work readiness in law students francina cantatore, assistant professor faculty of law, bond university, australia abstract the benefits of involving law students in practical learning exercises and clinical experience have been well documented. undeniably the implementation of law clinics in university law schools has significant advantages for students, including practice-based learning, general skills improvement and preparation for the workplace. it has become more important than ever to prepare law students for practice, and employability initiatives have become the focus of many law schools. one of the ways in which student employability can be boosted is through a pro bono law clinic. not only do law students entering the competitive work environment benefit significantly from practical work experience gained during the course of their law degree, but there is evidence that it could also increase self-confidence, practical knowledge and, consequently, employability in students. however, there has been little empirical research interrogating the connection between graduate skills development and clinical experience. this article continues the discourse on the link between graduate employability skills and law clinics. it focuses, first, on the benefits of pro bono law clinics for students in the context of work readiness; second, it examines the results of a survey administered to law students preand postlaw clinic training within the theoretic grounding of the graduate employability indicators prepared by oliver et al. (2011); and in conclusion, it considers the future implications for law schools and the need for further research in this area. keywords graduate employability; gei; clinical education; legal education; pro bono law clinic introduction a pivotal role of law schools is to prepare students for their future roles as legal practitioners, which will require a wide range of skills, not all readily accessible through traditional classroom education. it has been noted that there is significant agreement on the broad categories of desirable graduate capabilities cited by institutions, employers and industry bodies, including what are often referred to as the ‘generic’ or ‘soft’ skills, such as communication skills, teamwork, critical thinking, problem-solving, self-management, digital literacy and global citizenship (jorre de st jorre & oliver, 2017; hajkowicz et al., 2016). in a previous article the author enumerated the benefits of involving law students in a pro bono law clinic, acknowledging the differences between clinical legal education (‘cle’) and purely voluntary pro bono clinics. aside from the well documented benefits of clinical education (evans et al., 2012) it was found that pro bono experience – like clinical experience obtained for academic credit – can also be of significant benefit to students as it promotes characteristics of altruism, community service and enhanced work ethic, in addition to developing practical workplace skills, communication skills and increased self confidence (cantatore, 2015). however, it was acknowledged that further research was necessary in this area to determine whether students leave their clinic experience with enhanced workplace skills. to this end a pilot study has been undertaken with a group of law students preand postclinical experience in a pro bono teaching clinic, based on a survey utilising the graduate employability indicators (‘gei’) (oliver et al., 2011). a widely-accepted definition of graduate employability is the achievement of ‘the skills, understandings and personal attributes that make an individual more likely to secure employment and be successful in their chosen occupations to the benefit of themselves, the workforce, the community and the economy’ (yorke, 2006, p. 8). in this article the author sets out to explore whether previous findings and the anecdotal evidence provided in earlier research (cantatore, 2015) are supported by empirical research findings derived from the graduate employability survey (‘the survey’) (oliver et al., 2011). the article will consider, first, how students may benefit from involvement in pro bono law clinics in the context of work readiness; second, it contextualises and examines the findings of the survey, as compared with results from a control group of law students at an equivalent point in their law degree; and finally, it will conclude by noting the future implications and challenges for law schools, as well as the need for future research in this area. the pro bono law clinic and employability skills a pro bono teaching clinic can provide a secure and nurturing environment within which students can hone their practical work skills. this pre-supposes that adequate controls and supervision are in place to ensure that the experience is a worthwhile one for both students and clients attending the clinic. at the university law clinic which is the subject of this research study (‘the law clinic’) all students are supervised by experienced legal practitioners, as well as academic staff (when conducted at the university), and client appointments are screened and scheduled in advance of clinic times.[footnoteref:1] [1: the law clinic has been operating since september 2013 and provides free legal advice for small businesses and not-for-profit organisations. it has serviced approximately 430 clients as at the date of this article. the clinic runs every semester (three semesters per year) on a bi-weekly basis over a period of 12 weeks. to date more than 100 students have volunteered at the clinic, and overall, more than 250 students have participated in all the clinics offered by the program. ] the [law clinic program] the [law clinic program] consists of four clinics, namely the commercial law clinic, the community law clinic, the human rights clinic, and the criminal law clinic. all of these clinics which are the subject matter of this research are pro bono clinics, i.e. not for academic credit. in previous research the author focussed on the commercial law clinic and discussed the numerous advantages of faculty run clinics. not only do such clinics provide the faculty with experiential learning opportunities for students at a low cost, but they also offer pro bono work opportunities for local legal practitioners, as well as render a valuable community service. other benefits to students include: interaction with ‘real’ clients and cases; development of social responsibility, empathy and interpersonal skills; networking and integrating with legal professionals; and promotion of ethical behaviour in students (cantatore, 2015). it was acknowledged that a distinction can be made between cle and pro bono programs, as they have generally been regarded as ‘separate and distinct entities’ (mccrimmon, 2003, p. 76). although there is significant overlap, the main distinguishing factors between the two models lie in the following characteristics (cantatore, 2015, p. 148): a) cle programs attract academic credit (evans et al., 2012, p. 23), as opposed to purely voluntary non-academic reward arrangements for pro bono students; b) ‘pro bono’ is voluntary work done out of a sense of professional responsibility, where the primary motivation for the work is a concern for justice or reasons of kinship or friendship, as opposed to securing gain (corker, 2005, p. 5); c) cle programs have a teaching focus whereas pro bono programs have a community service focus (corker, 2005, p. 6); d) usually pro bono programs are at no financial cost to students as opposed to academic fees being payable for cle programs; and e) cle programs are required to have formal assessment procedures to produce specific learning and teaching outcomes whereas pro bono programs generally implement informal feedback and reflective practices. student pro bono work has been described as a situation where students, without fee, reward or academic credit provide or assist in the provision of services to enhance access to justice for low income and disadvantaged people or for non-profit organisations that work on behalf of members of the community who are disadvantaged or marginalised, or that work for the public good (national pro bono resource centre, 2004, p. 8). however, although pro bono programs intrinsically have a community focus and imply that volunteers are altruistically motivated, or are participating out of a sense of justice, it is clear that the benefits of such participation are more far-reaching. in addition to gaining practical work experience, pro bono clinics also help students acquire fundamental professional values, as opposed to merely focusing on the acquisition of legal knowledge (booth, 2004). ethical behaviour and understanding of social and cultural interaction with clients also become part and parcel of the student experience in the pro bono clinic. corker (2005, p.7) identifies the following objectives of pro bono clinics (in addition to the social justice aspects): to introduce law students to the workings of the legal profession and to meet, observe and work with practising lawyers involved in public interest work; to assist students to develop interpersonal skills in a professional environment; and to provide students with practical experience in research, writing and advocacy in a legal environment. all of these skills contribute to the student’s maturity and employability when he/she enters the workplace. in a recent study conducted by trina jorre de st jorre and beverley oliver (2017, p. 9) it was also found that students value the involvement of employers, industry representatives or professionals in the design and delivery of their learning. it was noted by the authors that students also spoke highly of work-integrated learning and professional networking opportunities. they identified strategies such as work placements, internships or volunteering as effective ways of engaging in skills development: ‘internships are great for developing these kinds of skills but they are highly selective. volunteering is a great way for other students to develop skills that employers want’. the interaction between students and legal professionals in the clinic is therefore conducive to developing practice skills, which would not have been accessible to students in a traditional classroom context. previously, it has been acknowledged that there is merit in both cle and pro bono clinics – the cle model which is for academic credit, and the more informal pro bono program without formal academic credit but that a ‘hybrid’ model incorporating both pro bono work and specific learning and teaching outcomes provides students with an optimum practice-based learning experience. furthermore, if such a program is conducted at the university faculty premises, rather than externally, the benefits are enhanced due to the interaction of students, lawyers and academics in the law faculty environment (cantatore, 2015, p. 162). it was then demonstrated that the commercial law clinic had the attributes of such a hybrid clinic, in providing a pro bono opportunity for volunteers, with the concomitant benefits of experiential learning derived from interviewing real clients under supervision by experienced legal practitioners, researching the law, and drafting advice, which is signed off by supervising lawyers. thus, this clinic model incorporated elements of community service together with the development of employability skills in students. in addition, as a commercial law clinic, the clinic was an initiative that challenged existing models of cle programs and pro bono services, by merging pro bono service and experiential learning in a commercial law context. the remaining three clinics consist mainly of off-campus volunteering with law firms and institutions on pro bono matters but they share the following characteristics with the commercial law clinic: a) all clinics constitute volunteer activities which involve community service elements; b) none of the clinics are for academic credit; c) all clinics promote access to justice (whether for individuals, small businesses or not-for-profits); and d) all clinics offer students experiential learning opportunities through interviewing, drafting and preparing advices or briefs. thus, even though they may serve different purposes from a community service perspective and the clinic models differ in some respects, all of these clinics under the [law clinic] program share common goals and objectives, which include developing students’ real-world employment skills. the research discussed below attempts to determine whether these objectives are realised – and if so, to what extent – in respect of developing employment skills through students’ pro bono clinic experience. the research project theoretical grounding the research project underlying this article was conducted within the theoretic grounding of the gei set out by oliver et al. (2011) for an australian learning and teaching council report. the report relied on seven clusters of attributes identified by universities including: written and oral communication; critical and analytical (and sometimes creative and reflective) thinking; problem-solving (including generating ideas and innovative solutions); information literacy, often associated with technology; learning and working independently; learning and working collaboratively; and ethical and inclusive engagement with communities, cultures and nations. based on these attributes, the survey included in the report allows for the systematic collection of evidence of stakeholders’ views of graduate achievement of employability skills (oliver et al., 2011, p. 8). the survey expands the list of attributes mentioned above further, by focussing on fourteen attributes, skills and personal qualities drawn from a number of related surveys (kuh, 2001; coates, 2009a). the gei can be used to determine the effectiveness of courses in preparing students for the workplace, by administering a survey to various stakeholder groups. in this pilot study the gei survey has been applied in the context of law students attending a pro bono teaching clinic over the course of a semester, by measuring their perception of competency against a control group. students typically volunteer in the clinic for a semester, without academic credit, and are appointed based on their academic record, curriculum vitae and an application letter. the experience exposes students to the realities of a job application, real client contact and interacting with their peers and supervising lawyers. in the survey students were instructed to indicate their level of competence in respect of each attribute rated from 0 – 100. a copy of the gei survey is attached as annexure a. methodology the research project involved the collection of both quantitative and qualitative data, from the survey as well as discrete qualitative survey feedback received from students post semester through survey monkey. in conducting this pilot study, the established model proposed by the gei was used to survey the law clinic student stakeholder group (‘group 1’) over the course of two semesters in 2016, and compare the results of the survey with those of a control group of students (‘group 2’) over a similar period in 2017. participant students of both groups were in the third to fourth semester of their law degree. group 1 consisted of students attending one of four pro bono clinics, whereas group 2 consisted of students with no clinical experience. the group numbers were fairly evenly balanced, with 33 and 34 participants respectively. qualitative data was collected from group 1 students to provide additional insight into their law clinic experience and perceived employability skills enhancement through their experience. the survey table 1: gei survey content abbreviated title full text in the gei 1. knowledge work related knowledge and skills 2. writing writing clearly and effectively 3. speaking speaking clearly and effectively 4. thinking thinking critically and analytically 5. quantitative analysing quantitative problems 6. using ict using computing and information technology 7. teamwork working effectively with others 8. independent learning learning effectively on your own 9. intercultural understanding understanding people of other racial and ethnic backgrounds 10. problem-solving solving complex, real-world problems 11. values & ethics developing a personal code of values and ethics 12. community engagement contributing to the welfare of your community 13. industry awareness developing general industry awareness 14. social contexts understanding different social contexts contents of the survey: as noted above, the survey listed fourteen attributes, skills and personal qualities on the instrument in abbreviated form, set out below, and students were instructed to indicate their level of competence in respect of each attribute rated from 0 – 100 (oliver et al., 2011, p. 10).[footnoteref:2] [2: instructions on the survey stated: “for each of the 14 points add a dot to indicate how competent you would feel in each if hired today as a legal practitioner (0=not at all competent, 100=absolutely competent).] participants and process: the representation of clinic participants in the survey is set out in tables 2 and 3 below: table 2: group 1 student group number of participants commercial law clinic 19 community law clinic 5 human rights clinic 4 criminal law clinic 5 total number 33 table 3: group 2 student group number of participants non-clinic law students 34 total number 34 to provide consistency, the same survey was administered to both groups in weeks four and 12 of the semester, thereby recording students’ responses early in the semester (for group 1, at the start of their clinic experience) and late in the semester (for group 1, at the end of their clinic experience). the group 2 control students were engaged by sending an email to law students, which provided an opportunity to win a mini-ipad. a copy of the email invitation is attached as annexure b. following the email invitation, 34 usable responses were received from students (i.e. where both the first and second surveys were completed, and students were non-clinic students.) group 1 surveys were distributed to clinic students at the beginning and end of semester by an administrator who collected and stored the surveys securely. student identification numbers were obtained instead of names in order to (a) allow for ‘blind’ viewing of data; and (b) enable collation of the second survey data with the initial survey. for group 2 surveys it was necessary to obtain an email address in order to distribute the second (end of semester) survey to participants. this procedure was consistent with the ethics approvals acquired prior to commencing the study, with no identification of participants in the research findings. general findings: a) group 1: overall, the 33 pro bono law clinic students reported an average 13% increase in their graduate skills from beginning to end of semester. more than 42% of students showed an overall increase of over 10%, and approximately 15% reported a more than 20% increase in their competency. the most significant increase reported was a 44% increase by one participant. broken down further by individual clinic, commercial law clinic students showed an average increase of 16% as opposed to the community law clinic and human rights clinic (both 10%) and the criminal law clinic (6%). only one criminal law clinic participant reported a perceived overall decrease of 2% in their competency. b) group 2: in comparison, the control group of non law clinic students showed a perceived overall increase in their graduate skills of 2.7%, with 17.6% of students indicating an increase in competency above 10%. only one participant reported an increase of 13%, which was the maximum increase reported. significantly, more than 26% of students reported a perceived decrease (ranging from 1% 14%) in their competency in these skills. discussion of findings: in comparing the findings for both groups, the following observations can be made: a) there was a significant difference between the perceived average increase in competency in the two groups, with group 1 students showing an overall average increase of 13%, as compared with group 2 students with an overall average increase of 2.7%, i.e. a difference of 10.3%. b) the commercial law clinic students attested to a higher average increase in competency than other law clinic students significantly, 74% of commercial law clinic students were above the total group 1 average increase percentage, indicating a perception of elevated competency in skills in these students. c) surprisingly, the control group (group 2) results showed that a significant number (26%) of students reported a decrease in their perceived competency in graduate skills by the end of semester. whilst it could be argued that other factors may play a role in the low increase in group 2, such as pre-exam stress at end of semester, the same stress would apply to group 1 students (arguably perhaps more so with the additional time commitment to volunteering). further, the control group responded to an email with the possibility of winning an ipad mini, which had the potential for them to inflate their increase in competency in case it would be a factor in choosing the winner (which it was not). however, from the lower results reported, it seemed evident that, overall, participants in group 2 did not inflate their increase in competency. it must also be noted that many students in the second group reported a high competency level in the attributes to start out with, and then maintained that level by end of semester, or decreased slightly. it should be noted that, in the group 1 students, many also started off with high competency levels but these generally increased by the second survey. another observation in relation to the group 2 students is the possibility that they may also have been engaging in part time legal work (whether paid or unpaid) as many students do. it would be interesting to know if this was the case, yet they still continued to report lower levels of competency. if so, it could be because the bond law clinic environment is more nurturing and supportive (thus engendering a sense of self-confidence) as compared to law firms where students may often feel quite inadequate as a clerk or paralegal. in the clinic students can enjoy the satisfaction of actually servicing a client with tangible needs and be involved from start to finish, whereas in a law firm students often work on a very small part of the matter, their work is often more administrative than legal, and they sometimes do not get to see the final product they contributed to. as a result, it may be difficult for students to build up their confidence during work experience to ask for more challenging work. asking what extracurricular or employment activities the control students are involved in might provide an interesting point of comparison in a future study. group 1 students showed a marked overall increase in their perceived competency level, with commercial law clinic students reporting significant improvements over the course of the semester. one may observe, as an aside, that an important characteristic acquired in the clinic appears to be a sense of improved self-confidence, which is reflected in their perception of increased general competency. whilst it is difficult to say with certainty whether the skill levels reported by the students are later manifested in the workplace without feedback from future employers, it is evident that clinic participants have, at a minimum, an increased sense of competency in the gei set out in the survey. group 1 qualitative feedback: in order to further explore the pro bono student experience, additional feedback was obtained from students in the commercial law clinic.[footnoteref:3] the qualitative data obtained through this additional survey – while not representative of all the pro bono clinics discussed here – provides some insight into the student experience and benefits derived from volunteering. it also highlights student perceptions of how the clinic experience affected employability skills. [3: by way of a survey monkey survey sent to students by email post-clinic experience.] there has previously been anecdotal evidence to support the success of the student experience in a pro bono commercial law clinic (cantatore, 2015, pp. 168-169), where several students commented on their increased confidence and improved communication skills, as well as the clinic’s role in helping them to obtain employment.[footnoteref:4] additionally, supervising lawyers in the clinic provided positive feedback about the work readiness value of the clinic, with comments such as: [4: examples of comments from students: “the [law clinic] was crucial to giving me the confidence in interviews to demonstrate i have had practical experience outside the classroom. it provided a level of comfort for me to attack and approach a client's case because of the different challenges i faced with the clinic. interviewing clients, writing letters of advice and doing legal research, were all key components which i felt were beneficial for my current position.”  (email from law graduate); “i am currently undertaking an internship as a paralegal and also secured three clerkships with three different top tier law firms. the [law clinic] a significant role in enabling me to obtain all of these things” (email communication from law graduate): cantatore, 2015, pp. 168-169] ‘the more experience a student has with real life cases and client interaction the better. further, to be accepted into the program is also evidence of the student’s excellence in their studies, initiative to apply, ambition to further their education by volunteering their time and willingness to learn from and make connections with legal professionals in practice.’ and ‘employability often goes hand in hand with confidence and personality. the more experience the student has the more practice ready they will be, because their confidence in different legal situations with actual clients is increased by their experiences at [the law clinic].’ (cantatore, 2015, p. 170) in the present study discussed in this article, it was found that students expressed similar sentiments to the previous clinic volunteers, as set out above. a brief discussion of their comments follows below. survey monkey feedback of participants: in the post semester survey administered as a matter of course to pro bono clinic students, they were given the opportunity to rate their clinic experience and to provide detailed feedback if they chose to do so. all responses were anonymous. responses included the following comments by students where the practical benefits of the clinic were highlighted: in relation to “real world” experience: ‘the clinic provided me with a fantastic insight into the real legal world. it allowed me to get first-hand experience dealing with clients and their files, as well as giving me experience in writing fact sheets which are then published and used in the clinic.’ (survey monkey, april 26, 2016); in respect of putting theory into practice whilst providing a community service: ‘[the law clinic] gives students the opportunity to dive into practical legal advice. as a student advisor, you think on your feet and get a practical context for the concepts you've learned about in class. being exposed to highly competent lawyers, learning from their client interaction and how they convey legal advice, is an invaluable experience you can't get from a textbook. on top of all that, you're making a difference in the community and helping real people solve real problems. why wouldn't you do it?!’ (survey monkey, april 22, 2016); in providing a memorable learning experience: ‘[the law clinic] provided the opportunity to apply applicable course content to real clients. the learning curve is steep, and the potential for skill development is present. it was fascinating to not just learn about the law in its everyday application, but to also learn about the people involved with the specific legal issues. [the law clinic] was a fantastic experience.’ (survey monkey, april 21, 2016); by developing drafting skills and interacting with real clients: ‘[the law clinic] is a great experience for any law student. i learned practical skills in both client interviewing and drafting letters of advice that i haven't learned in the classroom. in addition, it was a great opportunity to interact with real clients and to help choose what type of commercial law i want to practice after graduation. i would highly recommend volunteering here.’ (survey monkey, august 26, 2016); and by building students’ self-confidence ‘[the law clinic] provides students with an excellent opportunity to apply their knowledge to real problems. meeting with clients and assisting them in answering their questions builds confidence and skill.’ (survey monkey, august 26, 2016). another law student communicated her feedback by email, describing her journey in the law clinic experience: ‘my first day at the [community legal centre], i was thrown into the deep end, facilitating client entry interviews and drafting letters of advice for clients with a vast array of legal problems. such an intense practical experience fosters the most rapid and effective development of the leadership and communication skills that all future lawyers should build upon early in their degree. taking part in the [community law clinic] has broadened my outlook towards legal practice and the skills needed to be a successful advocate for clients. i would absolutely recommend participation in this outstanding program; i have grown so much not only as a student of law, but as a member of the [university community].’ (personal communication, may 10, 2016). some of the perceived benefits derived from the students’ clinic experience and recorded in this research are set out in table 4: table 4: perceived benefits of the law clinic experience student comment skills improved client interviewing and legal drafting skills. speaking, writing i believe my client interviewing and writing have improved since beginning the clinic. speaking, writing i have gained a better understanding of general legal efficacy, interacting with clients and how to approach a broad range of commercial matters. knowledge, thinking, speaking, industry awareness, problem-solving, social contexts i have learnt to look at problems from a less strict legal sense and a more commercial sense. i have also enhanced my client interviewing skills. knowledge, thinking, speaking, problem-solving, social contexts i've learnt so much from participating in the clinic and it has been great experience. knowledge, problem-solving i feel a lot more comfortable with writing letters of advice now that i've had to write several. writing, problem-solving improved real world application of the skills from classroom and how to implement these in a legal practice. knowledge, industry awareness, problem-solving it gave me the opportunity to see first-hand how client interviewing works and i found my ability to draft legal advice developed throughout the weeks. knowledge, speaking, writing, problem-solving i feel more confident communicating with clients on commercial law matters, providing summaries to the supervising lawyers, and drafting advice. knowledge, speaking, writing, problem-solving, social contexts it appeared from this research that students specifically recognised an increase in their knowledge, speaking, writing, problem-solving and industry awareness skills. however, the development of these skills is also underpinned by quantitative problem-solving skills (individual clients’ problems), community engagement, and the values and ethics associated with the legal profession. as students work closely with supervising lawyers, all of these skills are strengthened simultaneously. it can also be noted that other skills such as teamwork and intercultural understanding are inter-related with the skills mentioned, as students work in team situations and deal with a variety of clients during their clinic experience. conclusion despite the fact that pro bono clinics are generally regarded as having a primary focus of community service (corker, 2005, p. 6), and instilling future graduates with a community and public service rooted mentality (booth, 2004, p. 280), they present considerable learning opportunities for students. it has been shown that the habits of mind, work ethic, behaviours and professional identity learners develop through experiential opportunities in higher education are critical to their graduate employability (yorke & knight, 2006). pro bono law clinics offer such experiential prospects. this research shows a significant average increase of 13% in perceptions of competency in students after attending a semester long pro bono law clinic. in a faculty run clinic such as the commercial law clinic, students reported even larger average improvements in their graduate capabilities of 16%. these results were supported by qualitative data collected in follow-up surveys, where students mentioned amplified levels of skill in attributes such as knowledge, writing, speaking and problem-solving. in comparison the control group showed only a minimal increase of 2.7% in competency, with a number of students experiencing a decrease in their competency. whether the results of the surveys are borne out by students’ future career success can only be established through further research and more extensive studies, which would involve employers and continue into the graduate lawyer’s working life. oliver et al. (2011, p. 7) set out guidelines for conducting such research, and comment that there is no routine and systemic collection of evidence of other stakeholders’ views of graduates’ achievement of employability skills in australian higher education, even though reports suggest that employers are often less than satisfied with graduate skills. this may be as a result of the constraints in conducting such research. it is acknowledged here that employers are an independent voice who can provide highly valuable feedback on graduate outcomes (coates, 2009b), however, there are challenges associated with such further research, for example: the length of the research phase and funding considerations (as the research would need to be conducted over a considerable time period to assess a group of students during and after their law degree); close monitoring of the migration of participants (keeping track of their whereabouts over an extended period); and – as acknowledged by oliver et al. (2011, p. 7) – the difficulty of engaging respondents in surveys. nevertheless, such further research would show whether the employability skills obtained during their clinic experience helped graduates in the real-life workplace, how the skills assisted the graduates, and whether the graduates’ personal perceptions were borne out by their future employers. it would also assist higher education institutions to re-evaluate learning and teaching outcomes, and implement programs which promote graduate employment skills. in the absence of such data, and based on the results of this pilot research, it seems clear that there are definite skills benefits associated with a pro bono law clinic, provided that it is structured appropriately, managed effectively and that students enjoy constant professional supervision. from a law school perspective, it has been noted that there are a number of challenges involved with establishing and running pro bono clinics to promote employability skills, such as: securing enough pro bono lawyers for supervision in the clinic; engaging external organisations; involving academic staff with already heavy workloads in pro bono activities; administration of the clinic; qualification of applicants; insurance and risk considerations; and ongoing student engagement and management (cantatore, 2015, p. 165). however, the benefits derived from running a pro bono clinic, for both the community and for law students, and the opportunities for networking and engagement with the profession, validate the additional efforts of progressive law schools in equipping their students for the workplace. what is needed is a proactive commitment from law deans to support and encourage pro bono initiatives and to provide the infrastructure for these clinics to operate effectively. reference list booth, t. (2004). student pro bono: developing a public service ethos in the contemporary australian law school. alternative law journal, 29(6), 280-284. retrieved from http://search.informit.com.au/fulltext;dn=200501436;res=apaft coates, h. (2009a). engaging students for success: australasian student engagement report. melbourne: australian council for educational research. coates, h. (2009b). what's the difference? a model for measuring the value added by higher education in australia. higher education management and policy, 21(1), 1-19. corker, j. (2005, july). how does pro bono students australia (pbsa) fit with clinical legal education in australia? paper presented at the third international journal of clinical legal education conference and eighth australian clinical legal education conference, australia. evans, a., cody, a., copeland, a., giddings, j., noone, m.a., rice, s. (2012). best practices australian clinical legal education (report, australian government office for learning and teaching). retrieved from council of australian law deans website https://www.monash.edu/__data/assets/pdf_file/0003/591042/australian-cle-best-practices-2012.pdf hajkowicz, s., reeson, a., rudd, l., bratanova, a., hodgers, l., mason, c., & boughen, n. (2016). tomorrow’s digitally enabled workforce: megatrends and scenarios for jobs and employment in australia over the coming twenty years (report, csiro). retrieved from csiro website http://www.csiro.au/~/media/d61/files/16-0026_data61_report_tomorrowsdigiallyenabledworkforce_web_160204.pdf jorre de st jorre, t. & oliver, b. (2017). want students to engage? contextualise graduate learning outcomes and assess for employability. higher education research & development, 1-14. doi: 10.1080/07294360.2017.1339183. kuh, g. d. (2001). the national survey of student engagement: conceptual framework and overview of psychometric properties. bloomington, in: indiana university center for postsecondary research. mccrimmon, l. (2003). mandating a culture of service: pro bono in the law school curriculum. legal education review 14(1), 53-76. retrieved from http://search.informit.com.au/documentsummary;dn=894035261278188;res=ielhss national pro bono resource centre. (2004). pro bono and clinical legal education programs in australian law schools (information paper). retrieved from national pro bono http://www.nationalprobono.org.au/publications/documents/publishedversion_000.doc oliver, b., whelan, b., hunt, l., hammer, s., jones, s., pearce, a. and henderson, f. (2011). introducing the graduate employability indicators (report, australian learning and teaching council). retrieved from assuring graduate capabilities website http://www.assuringgraduatecapabilities.com/uploads/4/5/0/5/45053363/introducingthegei.pdf yorke, m. (2006). employability in higher education: what it is what it is not. learning and employability series. retrieved from http://www.employability.ed.ac.uk/documents/staff/hea-employability_in_he(is,isnot).pdf yorke, m., & knight, p. (2006). embedding employability into the curriculum. learning and employability series. retrieved from http://www.employability.ed.ac.uk/documents/staff/heabriefings/esect-3-embedding_employability_into_curriculum.pd f 171 181 holding up the mirror: a theoretical and practical analysis of the role of reflection in clinical legal education�1 rachel spencer* email: rachel�spencer@unisa�edu�au http://www�unisanet�unisa�edu�au/staff/homepage�asp?name=rachel�spencer http://www�unisa�edu�au/law/clinic/default�asp key words: clinical legal education, reflection, reflective writing, teaching and learning framework abstract this article provides a summary of the broader literature on reflection that has been published over the last twenty years in a variety of disciplines� it then examines the literature from two major clinical legal education journals in relation to reflective writing as a component of clinical legal education courses� it attempts to provide answers to the questions: what do we mean when we say we ‘teach’ students to be ‘reflective’? how do we do that? how do we ‘teach’ students to write reflectively? the article looks at the problems we face in teaching ‘reflection’ in the clinical context and examines issues stemming from the reality of reflection being an important part of a clinical program� it also argues that being ‘reflective’ is not necessarily intuitive for students and that clinical teachers must teach students how to ‘be reflective’� the article demonstrates an example of reflection in action by the provision of examples from the writer’s own teaching experiences� finally, the article collates and reproduces suggestions from the literature on best teaching practice on the use of reflection as a teaching and learning tool within clinical legal education courses� * rachel spencer is director of professional programs in the school of law at the university of south australia where she also directs the clinical legal education program� 1 this article had its origins as a conference paper at the clinical and experiential legal education conference held at the university of new south wales on 7-9 september 2011 (see http://www�law�unsw�edu�au/centres/klc/doc/ conference_program�pdf�) 182 international journal of clinical legal education issue 18 part a: introduction this article has metamorphosed from a few disparate ideas over several years� it was born out of a desire to ensure that the reflective journal that i ask students to submit in my legal professional and community service experience course2 is appropriate as a teaching and learning tool� i wanted to explore the literature in this area and to see if other clinicians had written about their own ideas, so that i could use those ideas and develop best practice in teaching reflection and reflective writing� having taught in this area for over a decade, and having attended conferences and met with many other academics who teach similar courses to mine, i was reasonably confident that the use of a reflective journal has many benefits� however, i have been conscious that it can be difficult to ‘teach’ reflection and i was very keen to find out if other teachers had experienced similar dilemmas and how they had overcome them� researching this article has uncovered a wealth of material that was initially overwhelming� scholars from almost every discipline have researched and written about ‘reflection’� one wonders whether there is really anything left to say� however, the many practical ideas that have been developed merit further exposure and deserve to be shared� immersing myself in the various theories about reflection has provided a useful basis upon which to develop a scholarship of teaching and learning in this area� i have not only found articles that are useful to me as a teacher, but i have also found several that are useful as reference materials for my students� clinical legal education involves the placement of law students either within a legal advice clinic that is directed and supervised by legal practitioners (usually law school staff) or within external organisations (usually referred to as ‘externships’)� placements provide not only an opportunity to develop professional skills but also experiences upon which students can then reflect critically�3 vast research has been completed across several decades on the topic of reflection and reflective practice and the use of reflective writing as a means of assessing student performance in a variety of fields (especially nursing, medicine, psychology and education)� over the last fifteen to twenty years, legal scholars have also written about the benefits of reflective writing in clinical legal education� this article is premised upon the assumption that reflection does enhance the learning process in the context of clinical legal education�4 there is nothing in the literature to date to rebut that assumption� clinical legal education engages students in authentic legal experience by providing legal services to real clients (under supervision)� the clients are usually marginalised or disadvantaged members of the community who would otherwise be unable to access legal advice� clinical legal education may also involve external work placements or simulated settings�5 the goals of clinical legal education have been variously expressed, and not all clinicians agree� ‘[a]n ethic of preparation, practising 2 at my university, the term ‘course’ is used where other universities might use the term ‘subject’, ‘topic’, or ‘unit’� in this article, the term ‘course’ has this meaning� 3 see, for example, jaszi p, shalleck a, valdez m and carle s, ‘experience as text: the history of externship pedagogy at the washington college of law, american university’, (1998-1999) 5 clinical law review 403� 4 see moon, j a handbook of reflective and experiential learning, london and new york: routledge falmer, 2004, p 84 – 94 for a discussion about this� 5 see grimes r, ‘the theory and practice of clinical legal education’, in effective learning and teaching in law, burridge, r et al (eds) , kogan 1996, p 140, cited in ledvinka, above, n10� holding up the mirror 183 ethical lawyering and developing critical thinking’6 have been said to be three major goals whilst another view is that the ‘primary goal of clinical legal education is to teach students how to learn from experience�’7 other scholars are of the view that of the twin pillars of education and justice access, it is the latter which is the primary goal of clinical legal education� another view is that the aim of clinical legal education is to analyse and reflect upon what constitutes ethical conduct, not upon skill acquisition8 and that in a clinical legal education course, students are encouraged to reflect on the practice of law, the values, dynamics and effectiveness of the legal system, the role of lawyers in society, issues around access to justice and human rights and the potential of law to achieve justice for economically and socially disadvantaged people�’9 irrespective of the view that one takes in this ongoing debate, it appears to be widely accepted that a major element of clinical legal education is reflective learning� georgina ledvinka describes reflection as ‘the magic ingredient which converts legal experience into education�’10 william berman speaks of reflection as ‘one of the cornerstones of clinical pedagogy’�11 colin james notes that the ‘learning’ in experiential learning ‘actually happens through the reflection during and after the activity�’12 the clinical legal education literature suggests that reflection can take two main forms� the first form is oral reflection or ‘debriefing’, especially after an experience like interviewing a client or appearing in court�13 berman, for example, describes the role of post-mistake reflection in the clinical context as important in the development of students’ ‘ability to engage in informed decision making�’14 the second form is written reflection, suggested to be ‘[t]he best way to harness the powerful tool of reflection���to provide a structured format for the development and 6 berman w, ‘when will they ever learn? learning and teaching from mistakes in the clinical context’, (2006-2007) 13 clinical law review 115, 118� 7 dunlap ja and joy pa, ‘reflection-in action: designing new clinical teacher training by using lessons learned from new clinicians’, (2004-2005) 11 clinical law review 49 at 52-53, citing kreiling kr, ‘clinical education and lawyer competency: the process of learning to learn from experience through properly structured clinical supervision’, (1981) 40 modern law review 248� 8 noone ma and dickson j, ‘teaching towards a new professionalism: challenging law students to become ethical lawyers’, (2003) 4 legal ethics 2, 139, cited in curran l, responsive law reform initiatives by students on clinical placement at la trobe law, 7 fjlr 287� 9 curran l, responsive law reform initiatives by students on clinical placement at la trobe law, 7 fjlr 287, 288� 10 ledvinka, georgina, ‘reflection and assessment in clinical legal education: do you see what i see?’ (2006) 9 international journal of clinical legal education, , 29-30� 11 berman, above, n6, 131� 12 james c, ‘seeing things as we are� emotional intelligence and clinical legal education,’ (2005) 8 international journal of clinical legal education 123, 138� 13 see, for example, grundlach ja, ‘”this is a courtroom, not a classroom”: so what is the role of the clinical supervisor?’ in (2006-2007) 13 clinical law review 279, 280� 14 berman, above, n6, 126-127� berman describes a protocol for dealing with mistakes which includes: 1� admit the mistake 2� student and supervisor should apologise to the client 3� take action to correct the mistake 4� reflect upon the mistake in supervision 5� reflect upon the mistake with other students 6� implement changes to avoid similar mistakes in future, pp 128 – 132� 184 international journal of clinical legal education issue 18 nurturing of meaningful and considered student reflection�’15 although not all clinical programs use reflective writing as an assessment tool,16 many clinical legal education courses do require the submission of a reflective journal as an item of assessment� in my course, a reflective portfolio is a major component (50%) of the assessment�17 i have been involved in clinical legal education for over a decade18 and have used a reflective journal as the main assessment tool for most of that time� i agree with ogilvy that ‘[t]hrough writing about what and how they are studying, students can move from superficial comprehension to employing critical thinking skills in their engagement with the material�’19 i co-ordinate and teach a course which has two main aims� the first aim is to broaden students’ awareness of access to justice issues and to develop a critical approach to legal ethics� the second aim is to develop professional skills and values, including the generic graduate qualities20 of the university in which the course is taught, with a structured analysis of, and reflection on, experience gained in the workplace or in a community service setting� in their reflective journals, students are required to analyse and reflect on their personal placement experience whilst also contemplating the role of legal professionals in the legal system and in society generally� in particular, students are required to refer to the issues that have been discussed in the classroom context: placement preparation, learning in a workplace context, self-awareness, personality types, client-centred practice, active listening, access to justice, legal ethics, law reform and the role of lawyers in society� reading students’ reflective journals is a task that i genuinely enjoy� i take great pride and vicarious satisfaction in following how students have developed in confidence and skills across the period of a clinical placement� i am not alone in enjoying the articulation of their goals for the course and how their goals have been fulfilled, and what they have learned across the placement period�21 15 hyams r, ‘on teaching students to ‘act like a lawyer’: what sort of lawyer? (2008) 13 international journal of clinical legal education 21 at 27� 16 e�g� la trobe in 2004 did not – see curran l, ‘responsive law reform initiatives by students on clinical placement at la trobe law’ in (2004) 7 flinders journal of law reform 287 at 291� 17 for a wider discussion of assessment of reflective writing see ledvinka, n10; burton k and mcnamara j, ‘assessing reflection skills in law using criterion referenced assessment’ 19 (1&2) legal education review (2009), pp 171-188; hyams r, ‘student assessment in the clinical environment – what can we learn from the us experience?’ (2006) 9 international journal of clinical legal education 77; hyams r, ‘assessing insight: grading reflective journals in clinical legal education, (2010) 17 james cook university law review 25; tummons j, ‘it sort of feels uncomfortable”: problematising the assessment of reflective practice’, (2011) studies in higher education, vol 36, no� 4, pp� 475-6� 18 first at flinders university, adelaide, south australia and now at the university of south australia in the same city� 19 ogilvy jp, ‘the use of journals in legal education: a tool for reflection’ in (1996-1997) 3 clinical law review 55� 20 see: university of south australia website: <http://www�unisa�edu�au/gradquals/default�asp>� a graduate of the university of south australia: 1� operates effectively with and upon a body of knowledge of sufficient depth to begin professional practice 2� is prepared for life-long learning in pursuit of personal development and excellence in professional practice 3� is an effective problem solver, capable of applying logical, critical, and creative thinking to a range of problems 4� can work both autonomously and collaboratively as a professional 5� is committed to ethical action and social responsibility as a professional and citizen 6� communicates effectively in professional practice and as a member of the community 7� demonstrates international perspectives as a professional and as a citizen� 21 usually ten weeks in my course� holding up the mirror 185 other commentators have expressed similar sentiments, for example about the enjoyment of ‘the ability to talk to students in depth about their experiences and seeing them become more questioning and actively engaged with making sense of those experiences’�22 however, some students write better journals than others� some students appear to ‘reflect’ better than others, prompting me to improve my own skills in teaching students how to write reflectively� a capacity for personal reflection has been said to be ‘essential for the development of ethical wisdom’23 and the benefits of reflective writing are well documented� my aim in preparing this article was to examine my own teaching practices and develop a teaching methodology that will equip students to maximise the benefits of writing a reflective journal� in order to do that, i embarked upon a literature search of scholarly work about reflection and reflective writing� the results of that search are provided in parts c and d of this article� one of the attributes of reflective writing is the ‘licence to write in the first person’ and i have deliberately adopted this technique in this article � it is the first hurdle over which students tread very cautiously because usually they are entering ground which has hitherto been out of bounds� law students are familiar with writing a particular form of academic essay� the requirement to abandon the traditional third-person discourse24 is confronting to most law students and indeed also to law academics� the use of the third person (e�g� ‘the writer found, the writer is of the view’) and the passive voice (e�g� ‘the literature was analysed’) which form the basis of scientific scholarship style – personal involvement must be eschewed at all costs – are anathema to reflective writing� the fundamental premise of reflective activity is self-awareness, so reflective writing must be owned and acknowledged as personal� accordingly, this article is deliberately written in a reflective and therefore personal style�25 paul ramsden26 poses the following questions which have helped to shape my research: ‘what exactly is teaching about? what do we mean when we say we ‘teach’ someone something? what are the main problems we face in teaching? what methods should we use and why? what helps our students to learn? what stops them learning?’27 i have transposed these questions into the clinical legal education context� part a of this article provides a background and introduction� part b explains the methodology i used to research this article� part c investigates the meaning of reflection and what it means to actually teach reflection and reflective practice� this part analyses reflection theory and the importance of instructing students about the act of reflection� it provides a literature review of work completed by a range of scholars on the theoretical pedagogical base for reflection� part d examines the methodology of teaching students to write reflectively in the 22 sparrow c, ‘reflective student practitioner – an example integrating clinical experience into the curriculum’, (2009) 14 international journal of clinical legal education 70, 74� 23 harris h, ‘promoting ethical reflection in the teaching of business ethics’, 2008, business ethics: a european review, vol 17, no 4, 379, 381� 24 tummons, above, n17, 475� 25 brookfield uses the analogy of the lens to demonstrate that there are multiple ways to analyse our own teaching� ‘our autobiographies as learners and teachers represent one of the most important sources of insight into teaching to which we have access� yet in much talk and writing about teaching, personal experience is dismissed and demeaned as “merely anecdotal” – in other words, as hopelessly subjective and impressionistic�’ see brookfield, stephen, becoming critically reflective: a process of learning and change, jossey-bass, san francisco, 1995, 23� 26 ramsden p, learning to teach in higher education, (2nd ed) routledgefalmer, oxon, 2003� 27 ramsden, above, at 14� 186 international journal of clinical legal education issue 18 context of my own clinical legal education pedagogy� part d also includes a reflective analysis of my own teaching, including some of the techniques that i have found helpful and some that i have adapted, changed or improved over the years� i draw on the literature to develop my own teaching methodology and i explain how that is done� part d also includes reference to assessment of reflective writing but is not an exhaustive examination of the topic of assessment� the focus is on the development of a teaching methodology for reflective writing� the article concludes by acknowledging the vast scholarship in this area and summarises the innovations that i intend to introduce in my own teaching as a consequence of this research� finally, the appendices include a range of teaching aids which i have compiled� some are derived from the work of others (who are duly acknowledged) and some are my own� part b: a critical methodology the primary aim of this article is to review the literature about reflective writing in the specific context of clinical legal education� that context has two major components� the first contextual component is the fact that clinical legal education is a type of experiential learning; it has been argued that optimal experiential learning involves a circular sequence of experience, reflection, theory and application�28 the second contextual component is in relation to the learning outcomes of the particular clinical legal education course that i teach� the learning outcomes of my course are articulated as follows: on completion of this course, students should be able to: • explain the practical operation of the law in a workplace or community service setting • reflect upon and evaluate their own learning and performance in a workplace or community service setting • identify and articulate the dynamics of various relationships that can arise in a workplace or community service setting • evaluate the roles of lawyers in the australian legal system and in australian society generally by reference to their workplace or community service experience • discuss the importance of legal ethics and professional conduct and demonstrate an appropriate ethical and professional attitude.29 these learning outcomes provide the framework for my teaching methodology and the contextual background for the research i conducted for this article� however, teaching reflective writing is not exclusive to legal scholarship� it is a multidisciplinary phenomenon� it has therefore been important to explore the literature not only in law, but in other professional education fields� my original title for this article included the words ‘reflecting on reflection’� i (naïvely) believed this to be an original thought� a preliminary search of education literature about the use of reflection in teaching revealed an article about music teaching entitled ‘reflecting on reflection’� curious that someone else had already published an article under ‘my’ title, i searched ‘reflecting on reflection’ within the ‘title’ search box in the online digital library of education research and information (eric), unearthing over 151,680 results� clearly there has been a great deal of 28 stuckey r, ‘teaching with purpose; defining and achieving desired outcomes in clinical law courses’, (2007-2008) 13 clinical law review 807, 813� 29 legal professional and community service experience, laws 4007 school of law, university of south australia� holding up the mirror 187 reflecting on reflection, especially in the last ten years� narrowing the search down to articles published between 2000 and 2011 produced 120,197 results� in the last five years, 74,355 articles have been published about reflecting on reflection; 46,931 are scholarly publications� refining the search further within ‘education’ yielded 1,754 results� 30 i then limited my search using the search terms ‘reflection’ and ‘professional education�’ i was particularly interested to find articles which highlight the issue of ‘teaching’ reflection or reflective writing� this produced a number of articles (predominantly in the psychology, medical, nursing and social work professions31) that were useful in the context of providing background information about reflection as an educative tool� several of them also contained literature reviews of the vast literature that exists on the subject of reflection in professional education� my attention was also drawn to a number of articles about reflection and reflective learning by colleagues�32 finally, i also searched the two major journals that publish articles about clinical legal education: the international journal of clinical legal education33 and the clinical law review,34 using the search terms ‘reflective learning’, reflective writing’ and ‘reflection’� what follows in this article is a summary and analysis of my findings� part c: what do we mean when we say we ‘teach’ students to be reflective? how do we do that? experience has taught me that reflection and reflective writing are not innate skills and that students benefit greatly from being taught how to reflect� ledvinka provides useful ideas about how to promote student reflection35 but notes that it may not be possible to ‘teach’ reflection�36 30 routledge publishes a journal called reflective practice, although i was unable to find anything directly relevant to this article in an on-line search of that journal� 31 for example, bogossian f, storytelling, concept mapping and reflection: a case study of an innovative teaching and learning approach to promote critical thinking about professional issues [online]� focus on health professional education: a multi-disciplinary journal, vol� 7, no� 1, june 2005: 91-104� availability: <http:// search�informit�com�au/documentsummary;dn=056078964510213;res=ielhss> issn: 1442-1100� [cited 10 apr 11]; elkin, sa, the integration of ethics teaching in the therapy professions [online]� focus on health professional education: a multi-disciplinary journal, vol� 5, no� 3, feb 2004: 1-6� availability: <http://search� informit�com�au/documentsummary;dn=165845798192269;res=ielhss> issn: 1442-1100� [cited 10 apr 11] and dempsey s; warren-forward hm and findlay n, development of the newcastle reflective analysis tool [online]� focus on health professional education: a multi-disciplinary journal, vol� 11, no� 1, july 2009: 32-40� availability: <http://search�informit�com�au/documentsummary;dn=127940648462956;res=ielhss> issn: 1442-1100� [cited 10 apr 11]; griffiths l, ‘time for reflection’, occupational health, may 2004 vol 56 issue 5, p 20-21� 32 special thanks to phiona stanley who provided me with suggestions and references; to howard harris whose slides for his paper make them think about it! using reflection techniques in university courses presented at the 18th australian association of professional and applied ethics national conference, hobart, june, 2011 provided further references and also to michele leering, executive director, community advocacy and legal centre, belleville, ontario introduction to “reflective practice” and a working conceptualisation for discussion purposes, distributed at the global alliance for justice education conference, valencia, 2011� 33 published by the university of northumbria since 2000� 34 jointly sponsored by the association of american law schools, the clinical legal education association and new york university school of law; published since 1994� 35 ledvinka, above, n10, 36-37� 36 ledvinka, above, n10, 38� see also race, p� evidencing reflection: putting the “w” into reflection, escalate learning exchange (2002)� 188 international journal of clinical legal education issue 18 however, after several years of developing a pedagogy in this area, i believe that teaching reflection is indeed possible� definitions of reflective practice remain contested37 and it is therefore necessary to accept the multiplicity of meanings that students may understand about reflective practice� steve dillon observes that in twenty years of teaching music, he always ‘emphasised the practical and experiential� making music was the priority, composing, improvising, performing, students were intrinsically motivated to make music���’38 he then explains that dewey’s work39 convinced him that ‘experience was meaningless without reflection,’40 a notion that i have espoused for some time, although i do not recall a particular single event or a specific academic article that convinced me of this� dillon describes his ten year quest to examine reflection in the classroom41 and outlines the ways that he introduced reflective components into his music curriculum� the concept of ‘reflective practice’ was brought into the academic arena with donald schön’s the reflective practitioner�42 jennifer moon points out that reflective practice was developed initially in the nursing and teaching professions43 and it is in those disciplines that the bulk of scholarship has occurred in this area� the rationale behind teaching students to be reflective is that it encourages reflective practice which, according to schön and his disciples, is of benefit in professional practice� moon also argues that ‘[r]eflection also plays an important part in employability skills and student work experience�’44 it is for these reasons that i teach students about reflective practice and use the (assessable) reflective journal as a tool for developing and encouraging reflective practice� it is my aim that students will take the skills of reflection with them into practice after graduation� the use of a journal is an example of what schön calls reflection on action (conscious reflection after the event45), which can lead to the skill of reflection-in-action (the ability of professionals to think about what they are doing while they are doing it)�46 georgina ledvinka provides a useful and comprehensive overview of the theoretical pedagogical basis for reflection, particularly the theories of kolb (the experiential learning cycle) and schön (the reflective practitioner)� she also contextualises reflection by noting that it is an element of deep learning as opposed to surface learning�47 however, ledvinka asserts that reflection is a method of learning, ‘not a cure-all which is guaranteed to turn out sensitive, ethical lawyers, or those who have particularly good negotiation/ advocacy/interviewing skills�’48 ledvinka summarises the meaning of ‘reflection’ as defined by various scholars49 and concludes that ‘reflection is a method 37 tummons j, ‘it sort of feels uncomfortable”: problematising the assessment of reflective practice’, (2011) studies in higher education, vol 36, no� 4, pp� 475-6, p� 479� 38 dillon s, ‘reflecting on reflection’, 1999 victorian journal of music education, 8� 39 dewey, j� (1980) art as experience, usa: pedigree books� 40 dillon, above, n38� 41 dillon, above, 9� 42 schön da, the reflective practitioner: how professionals think in action, london: basic books, 1983� 43 moon, above, n4, 80� 44 moon, above, n4, 81� 45 waters m, ‘educating the reflective gp: schön revisited,’ in teaching exchange, radcliffe publishing, 2004, 632� 46 waters, above, 631� 47 ledvinka, above, n10, 35� 48 ledvinka, above, n10, 35� 49 ledvinka, above, n10, 31� holding up the mirror 189 of teaching and learning�’50 ledvinka’s work is therefore a useful addition to the student reading list� my personal objective in using reflection as a teaching and learning tool is to introduce students to the ‘habit of processing cognitive material which can lead students to ideas beyond the curriculum, beyond learning outcomes, and beyond their teachers�’51 many of my students have discovered that the process of reflection enables them to articulate their thoughts, their goals and their career aspirations� at a time when more and more law graduates are being produced by universities but fewer graduate positions are available, many law students tell me that they are confused and uncertain about their future� many have told me that keeping a reflective journal has helped them to identify how they hope to utilise their legal knowledge and skills and to articulate their goals�52 ultimately, developing tools for life-long learning is one of the most important aims of reflection�53 michael eraut notes that ‘before schön wrote his seminal work, the concept of reflection tended to be used in the context of dewey’s central emphasis on learning from experience� 54 then kolb re-popularised the idea in 1984 in the contexts of adult education and management education;55 its educational purpose was to learn from past experience in order to be better prepared for future problems and decisions�56 eraut argues that schön advanced the idea of reflective practice into ‘reflection on current and ongoing actions to improve the quality of actions through on-the-spot decisions or decisions made soon after the reflective period has concluded�’57 it is important to remember though, that ‘schön rarely wrote anything about law or lawyers� if he ever saw a law school class, there is no trace of it in his writing�’58 the index of educating the reflective practitioner contains only six references to legal education, one of which is incorrect59 and the other five of which ‘are so obvious that they might be the products of casual chats with law faculty acquaintances�’60 importantly, ‘[a]t the time he wrote his most oft-cited books, [schön] seems not to have known about law school clinics�’61 50 above� 51 ledvinka, above, n10, 31, citing moon j, reflection in higher education learning pdp working paper 4, ltsn (2001)� 52 i am currently compiling data about this for future publication� 53 see ledvinka, above, n10, 31� 54 eraut m, ‘the practice of reflection,’ in 2004, 3,2 learning in health and social care, 47, 48� 55 kolb da, experiential learning – experience as the source of learning and development, prentice hall, 1984� 56 eraut, above, n54, 48� 57 above� 58 neumann rk jr, ‘donald schön, the reflective practitioner, and the comparative failures of legal education, (1999-2000) 6 clinical law review 401� 59 schön alleges that ‘in the law school classroom ��� there is presumed to be a right answer for every situation’, schön, educating the reflective practitioner: toward a new design for teaching and learning in the professions, (1987, 1990) at 39, cited in neumann, above, n 58 at 404, n 16� 60 neumann, above, n58, 404, citing schön, educating the reflective practitioner: toward a new design for teaching and learning in the professions, (1987, 1990) 4, 8, 11, 14, 34� 61 neumann, above, n58, 404� this is evidenced by an edited version of schön’s address to the annual meeting of the association of american law schools in 1992, where schön refers to ‘post-law school training’ as an example of the way lawyers have learned, ‘probably not in school but through some kind of apprenticeship in a practice setting, to become competent lawyers�’ see schön da, ‘educating the reflective legal practitioner,’ (1995-1996) 2 clinical law review 231 at 248� 190 international journal of clinical legal education issue 18 in 1993, sue atkins and kathy murphy published a literature review of articles about reflective writing in the context of nursing ‘in an attempt to unravel the important aspects of reflection and to identify cognitive and affective skills required to be reflective’ (my emphasis)�62 atkins and murphy noted a ‘lack of definition and clarity of the concept of reflection’63 and that questions can be raised about the meaning of the term ‘reflection’ and the extent to which readers can make comparisons between the works�64 moon also notes the ‘extraordinary complexity of the literature in this area’65 and the fact that the ‘common sense view of reflection’ differs from the ‘academic view of reflection’�66 atkins and murphy argue that the skills of self-awareness, description, critical analysis, synthesis and evaluation are required in order to be reflective� they propose that ‘emphasis should be given to developing these skills in professional courses in order to facilitate the use of reflection as a learning tool�’67 they note two definitions: ‘reflective learning is the process of internally examining and exploring an issue of concern, triggered by an experience, which creates and clarifies meaning in terms of self, and which results in a changed conceptual perspective�’68 ‘reflection in the context of learning is a generic term for those intellectual and affective activities in which individuals engage to explore their experiences in order to lead to new understandings and appreciations�’69 atkins and murphy have distilled various authors’ ideas into three key stages in the reflective process: 1� an awareness of uncomfortable feelings or thoughts (schön’s idea of ‘surprise’70) or inner discomfort (as described by boyd and fales71) 2� critical analysis of the situation – an examination of feelings and knowledge 3� development of new perspective, leading to an outcome of learning�72 another analysis of ‘good reflective practice’ is as follows: 1� direct experience of a situation 2� thoughtful examination of existing beliefs, knowledge or values, and 62 atkins s and murphy k, ‘reflection: a review of the literature,’ in journal of advanced nursing 1993, 1188 – 1192, 1188� 63 above, 1189� 64 above� 65 moon, above, n4, 82� 66 moon, above, n4, 82� 67 atkins and murphy, above, n62, 1191� 68 boyd em and fales aw, ‘reflective learning key to learning from experience’, (1983) 23(2) journal of humanistic psychology, 99-117� 69 boud d, keogh r and walker d, reflection turning experience into learning, london: kegan page, 1985� 70 above, n37� 71 above, n62� 72 atkins and murphy, above, n62, 18, 1188 – 1192, 1189-90� holding up the mirror 191 3� the systematic contemplation of observations and potential actions�73 a further interpretation of the three different stages of reflection is expressed as: descriptive reflection, dialogic reflection (weighing competing claims and viewpoints, and then exploring alternative solutions) and critical reflection (in the context of the ethical criteria of one’s profession)�74 none of these threefold definitions include a specific reference to an acknowledgement of emotions and the development of emotional intelligence� colin james argues that theories that ignore opportunities for reflection on feelings are inadequate�75 he argues that ‘[r]eflection on feelings and emotions helps us to understand the choices we make ��� [and] helps to prioritise our ideas because we know more about their source�’76 i agree� law students engaged in clinical programs are often confronted by unfamiliar feelings� personal reactions to clients and to fellow students can create tension and anxiety� they can also promote a sense of satisfaction and achievement� one of the exciting yet daunting aspects of clinical practice is that no two days are the same� reflection on their differing experiences allows students to synthesise what they are learning in a highly personal way, and adapt their learning to their sense of self, helping them, as james suggests, to understand their personal and professional choices� reflection often requires stimulation� moriarty and mckinlay provide a variety of suggestions to stimulate reflection including oral presentations; learning journals, logs and diaries; reflective exercises; reflection on work experience; portfolios and personal development planning�77 my own experience supports the recommendation of moriarty and mckinlay to introduce students to ideas about reflection including what it is and how it is different from other forms of learning� since introducing a seminar about reflection and what constitutes ‘good’ reflective writing to my own students, i have observed a marked improvement in their reflective writing� howard harris describes four aspects of teaching students to be reflective: 1� categories of reflection 2� helping the neophytes – reflection on action, interactive workshops, early, encouraging feedback78, licence to write in the first person� 3� assessment criteria including depth of reflection, reflection towards a purpose, more than emotional outpouring, comprehension of the topic� 4� privacy79 – not forcing students to disclose themselves, not confessional� 73 francis d, ‘the reflective journal: a window to preservice teachers’ practical knowledge,’ (1995) 11 teaching and teacher education 229 at 230, cited in james, above, n12, 139� 74 harris h, make them think about it! using reflection techniques in university courses presented at the 18th australian association of professional and applied ethics national conference, hobart, june, 2011; conference power point slides provided by howard harris to the author� 75 james, above, n12, 139� 76 above� 77 moriarty hj and mckinlay e, ‘reflective journals reveal the transformative nature of early community-based experience’, in focus on health professional education: a multi-disciplinary journal vol 10, no 1, 2008, 59� 78 for a thorough discussion about feedback including a ‘six step feedback model’ see blaustone b, ‘teaching law students to self-critique and to develop critical clinical self-awareness in performance,’ (2006-7) 13 clinical law review 143� 79 harris, above, n74� 192 international journal of clinical legal education issue 18 jennifer moon’s three works on reflective writing80 provide an introduction to the academic literature on reflective practice and reflective writing� moon compiled a major summary of the literature on reflection in 1999,81 and elaborated on that review in 2004,82 noting the work of burns and bulman83; taylor and white84; mcalpine and weston85; stewart86 and lowry�87 moon also identifies that the literature extends to how to introduce reflection into disciplines,88 and how to embed it into programs�89 in 2000, sue duke and jane appleton conducted a literature review of articles published between 1985 and 1999, using the key words ‘reflection’, ‘reflective practice’ and ‘reflective process’ in the databases medline and cinahl�90 they focus on reflection as a means of encouraging integration between theory and practice within professional education, particularly palliative nursing care� their results suggest that students are able to describe their practice but find it harder to analyse knowledge, the context of care and to action plan� duke and appleton summarise the various ways that reflection is depicted in the literature: ‘an everyday activity that can be refined for learning from experience’91 ‘a continuum with technical rationality,’92 ‘a hierarchy of levels 80 moon, j� reflection in learning and professional development, london: kogan, 1999; moon, j� learning journals: a handbook for academics, students and professional development, london: kogan, 1999; moon, above, n4� 81 moon, j�, 1999, above� 82 moon, above, n4, 81� 83 burns, s� and bulman, c� (eds) reflective practice in nursing, 2nd ed, (2000) oxford: blackwell science� 84 taylor c� and white, s� (2000) practising reflectivity in health and welfare, milton keynes: open university press� 85 mcalpine l� and weston, c, ‘reflection: improving teaching and students learning’, in n� hativa and p� goodyear (eds) teacher thinking, beliefs and knowledge in higher education, (2002) dordrecht: kluwer academic publishers, 59-77� 86 stewart, m, ‘encouraging reflective practice,’ (2002) learning and teaching press, spring 1 (2), 4-6� 87 lowry, a, ‘reflective practice and web-based learning’, (2002) learning and teaching press, 1 (2), 10-11� 88 jones, j, ‘reflective learning: helping learners and teachers to see more clearly: the learner’s perspective’, (2002) learning and teaching 2(2), 4-6; race, p� (2002) ‘evidencing reflection – putting the “w” into reflection’, escalate learning exchange� 89 knowles, z, borrie, a and stewart, m, ‘embedding reflection within a degree programme’, (2001) learning and teaching press, 1(2), 8-10� 90 duke s and appleton j, ‘the use of reflection in a palliative care programme: a quantitative study of the development of reflective skills over an academic year’, 2000 journal of advanced nursing, 32(6) 1557-1568� 91 dewey j, how we think: a restatement of the relation of reflective thinking to the educative process, (1933) chicago: dc heath; boyd e and fales a, ‘reflective learning: key to learning from experience’, (1983) 23 journal of humanistic psychology 99-117; boud d, keough r & walker d, ‘promoting reflection in learning: a model’ in boud d, keough r & walker d (eds), reflection: turning experience into learning, (1985) london: kogan page, 18-40; gibb g learning by doing. a guide to teaching and learning methods, (1988) further education unit, oxford polytechnic; boud d and walker d, ‘barriers to reflection on experience’ in boud d, cohen r and walker d (eds), (1993) buckingham: open university press; all cited in duke and appleton, above, n90� 92 powell j, ‘the reflective practitioner in nursing’, (1989) 14 journal of advanced nursing, 824-832; day c, ‘professional learning and researcher intervention’, (1985) 11 british educational research journal, 133-151; day c, ‘reflection: a necessary but not sufficient condition for professional development’, (1993) 19 british educational research journal, 83-93, all cited in duke and appleton, above, n90� holding up the mirror 193 between technical ability and ethical and moral justification of practice’,93 ‘a process of critical dialogue’,94 ‘a process of emancipation,’95 ‘the integration of calculative and contemplative thinking – transformation of thinking into learning’�96 it is the final description that in my view describes most accurately what i require of my own students and the process that i encourage them to engage in, not just during their studies but in their future legal practice� the skills inherent in the act of reflection provide a vehicle for students to engage in a paradigm shift, from passive recipients of information to active learners who ask questions, view information critically and use emotional intelligence�97 i have adapted these skills for use as marking criteria for reflective writing exercises (see appendix a)� in the context of occupational health nursing, reflection has been said to be an important component of experiential learning ‘because it can promote the ability to engage in self-assessment, to adapt to change and develop autonomy�’98 ian weinstein notes that clinical programs can offer ‘a rich context for reflection upon [professional] motivation�’99 jane harris aiken takes the role of reflection an important step further in the context of clinical legal education� she points out that one of the four fundamental values of the legal profession100 identified by the maccrate report101 is striving to promote justice, fairness and morality� aiken describes how using fran quigley’s phenomenon of the ‘disorienting moment’102 in clinical legal education can encourage students to develop compassion and therefore encourage them to promote justice, fairness and morality� 93 goodman j, ‘reflection and teacher education: a case study and theoretical analysis’, (1984) 15 interchange 9-26; mezirow j, ‘a critical theory of adult learning and education’, (1981) 32 adult education, 3-24; mezirow j, ‘how critical reflection triggers transformative learning’, fostering critical reflection in adulthood (mezirow, j� ed) san francisco; jossey bass, 1991, 1-20; day c, (1993) ‘reflection: a necessary but not sufficient condition for professional development’, 19 british educational research journal 19, 83-93; all cited in duke and appleton, above, n90� 94 brookfield s� (1987) developing critical thinkers, open university press, buckingham; brookfield s� (1991) ‘using critical incidents to explore learners’ assumptions’, fostering critical reflection in adulthood (mezirow j� ed), jossey bass, san francisco, 177-193; brookfield s� (1996) ‘on impostership, cultural suicide and other dangers: how nurses learn critical thinking’, 24 journal of continuing education in nursing, 197-205; johns c� (1994) ‘nuances of reflection’, 3 journal of clinical nursing 71-73, johns c� (1995), ‘framing learning through reflection within carper’s fundamental ways of knowing in nursing’, 22 journal of advanced nursing 226-234, johns c. (1998) ‘illuminating the transformative potential of guided reflection’, transforming nursing through reflective practice johns c. and freshwater d. eds), blackwell science, oxford, 78-90, al, cited in duke and appleton, above, n 90� 95 carr w� and kemmis s� (1986) becoming critical: education, knowledge and action research, the falmer press, london; fay b, (1987) critical social science, polity press, cambridge, both cited in duke and appleton, above, n90� 96 pierson w, (1998) ‘reflection and nurse education’, 27 journal of advanced nursing, 165-170, cited in duke and appleton, above, n90� 97 see duke and appleton, above, n90� 98 griffiths l, ‘time for reflection’, occupational health, may 2004 vol 56 issue 5, p 20-21� 99 weinstein i, ‘teaching reflective lawyering in a small case litigation clinic: a love letter to my clinic,’ (2006-2007) 13 clinical law review 573, 599� 100 the other three values are the provision of competent representation, striving to improve the profession and professional self-development� 101 american bar association section of legal education and admissions to the bar, legal education and professional development – an educational continuum, report of the task force on law schools and the profession: narrowing the gap, 1992� 102 quigley f, ‘seizing the disorienting moment’, 2 clinical law review 37, 51, cited in aiken jh, ‘striving to teach “justice, fairness and morality” in (1997-1998) 4 clinical law review 1, 24� 194 international journal of clinical legal education issue 18 aiken explains that law students ‘typically come from backgrounds far more privileged than those of their clients’103 so they are likely to experience ‘disorienting moments’ in the course of a clinical program, largely because the experience is new� in aiken’s experience, ‘[t]he majority of these students had been shielded from the reality of people they perceived as different� experiencing difference is often “disorienting”�’104 further, clinical programs can bring students into contact with emotionally challenging situations� aiken found that ‘[s]uch emotional turmoil also created a willingness to engage in self-reflection and an openness to learning about privilege�’105 aiken says that it is at this point that we must add a step in the reflection phase: ‘not only should we help our students reflect carefully on the disorienting moments caused by the insights into “different” worlds [e�g� realisation of the difficulty of surviving on unemployment benefits, lack of childcare causing a client to miss an appointment] but we must help our students in reflecting on why the moments are disorienting� this requires students not only to analyse the world outside of them but also to turn inward and analyse themselves� they must seize the moment of disorientation and deconstruct it�’106 according to aiken, even in classroom moments that are difficult or uncomfortable, ‘[t]he disorienting moment is not enough� this is an opportunity to have the learner reflect on how her values affected her analysis of the problem and, consequently, the delivery of justice���you cannot let the moment fade�’107 aiken also suggests questions to assist this reflection process in class (see appendix d)� aiken’s idea about injustice being disorienting is compelling� she argues that we should seize upon that disorientation ‘and help our students develop a critical consciousness of the operation of power and privilege both in the situation that they are observing and in themselves�’108 i am excited by her idea of teaching students to be compassionate and do justice by changing the focus from the ‘other’ and turning the focus onto themselves�109 this is reflection with a goal for both learner and teacher: striving to promote justice, fairness and morality� some clinicians argue that it is important for students to learn about reflection theory�110 teacher knowledge of educational theory on reflection can be critical to assisting students in their reflective thinking� 111 i always provide materials about reflective writing to students and in 2011 i introduced a session on reflective writing in class time (see part d)� instruction is provided on 103 aiken jh, ’striving to teach “justice fairness and morality”’, (1997-1998) 4 clinical law review, 1, 25� 104 aiken, above, 37-38� 105 aiken above, n103, 41� aiken stresses throughout her article that a recognition of privilege is essential for the development of compassion and an understanding of justice� ‘learners will not strive to promote justice unless they understand how their own privilege prevented them from seeing injustice as well as how their own privilege allows them to benefit indirectly�’ (at p 44) 106 aiken, above, n103, 26� 107 aiken, above, n103, 51� 108 aiken, above, n103, 63� 109 aiken, above, n103, 63� 110 sparrow provides an introduction to the work of academics in the field such as donald schön, david kolb, georgina ledvinka and jenny moon; see also maughan, c� and webb, j�, ‘taking reflection seriously: how was it for us?’ in maughan, c� and webb, j (eds), teaching lawyers’ skills, butterworths (1996)� 111 ledvinka, above, n10, 36� holding up the mirror 195 reflective theory, and students complete reflective writing exercises� informal feedback indicated that this was well accepted and appreciated by students and i have now embedded into the course longer periods of class time for reflective writing training� there are a number of practical ideas that clinical teachers can employ� for example, the classroom can be arranged to encourage reflection by avoiding placement of the teacher in the ‘power’ role at the front; my own experience confirms that in a circle is best,112 although this is not always possible if the class is held in a lecture theatre, or a room with immovable furniture� in the latter situations, asking the students to sit in the front few rows is helpful, especially if the teacher can join them, or at least avoid being above or detached from them (such as behind a lectern or desk)� ledvinka advocates the idea of the teacher acting as a facilitator of discussion rather than as the ‘master’ who can give the answers on every issue�113 the encouragement of genuine and egalitarian classroom discussion is indeed one of the most pleasurable aspects of clinical legal education, and provides a non-judgmental learning environment� small group or pair discussions provide opportunities for peer and self-assessment114 and also encourage discussion amongst less extroverted students who prefer not to speak frankly about personal experiences in front of a larger group� james asserts that ‘[p]eer sharing helps [students] discover they may not be alone in having an emotional reaction or sympathetic response to a client’s situation� it is an opportunity for the students to discuss their attitudes and values, and the reasons for them, and can lead to very productive learning situations and long-lasting relationships�’115 ledvinka cautions, however, that it should be a supporting group not a support group� there are no right or wrong answers but it is a learning environment; reflection is not just to make people feel better�116 part d: how do we ‘teach’ students to write reflectively? sparrow’s research indicates that ‘students do find reflective writing very difficult since it is so unlike any assessment task they have previously undertaken�’117 a study by kenny, styles and zariski in 2004 concluded that law students found the completion of a reflective report confronting, even excruciating, and that ‘they needed to have the tools to deal with it�’ further, they concluded (as i have from my teaching experience) that students ‘needed to explore ways in which students could develop reflective skills�’118 further, a primary disincentive of reflective writing is the fact that students might be reluctant to report all their experiences if they fear that they have made mistakes or acted inappropriately�119 it is important to be responsive to students’ feelings of vulnerability with regard to the ‘confessional element’ of reflective writing and their 112 above� 113 ledvinka, above, n10, 36; maughan c & webb j, above, n 110, 268� 114 ledvinka, above, n10, 37� 115 james, above, n12, 140� 116 ledvinka, above, n10, 37, citing maughan and webb, above, n110� 117 sparrow, above, n22, 74� 118 kenny ma, styles i & zariski a, ‘looking at you looking at me looking at you: learning through reflection in a law school clinic,’ (march 2004) 11(1) e law – murdoch university electronic journal of law, 8� 119 varnava t and webb j, ‘key aspects of teaching and learning: enhancing learning in legal education’ in (2000) krathwohl dr & anderson lw (eds�), a taxonomy for learning, teaching and assessing: a revision of bloom’s taxonomy of educational objectives, longman publishing, 379� 196 international journal of clinical legal education issue 18 nervousness about being judged when engaging with this unfamiliar genre�120 the first component in my pedagogy of teaching reflective writing is the establishment of an appropriate environment� i spend a great deal of class time generating an atmosphere of trust between myself and the students and between the students themselves, to encourage them to disclose personal feelings and to analyse their own reactions to events� classes are structured so that this relationship of trust builds gradually� the first exercise involves students introducing themselves and articulating why they have chosen to enrol in the course� subsequent written exercises involve personal goals, self-awareness, personality types, identification of strengths and recognition of opportunities for improvement� these exercises are private, and students are not required to divulge their thoughts� the next task involves discussing ‘an unexpected situation which i handled well’ in pairs� then they select a different partner with whom to discuss ‘an unexpected situation which i handled badly’� after this, there is usually at least one student who is prepared to share this experience with the class, leading to a discussion about the best way to deal with unexpected situations that might occur on the placement or in a work environment� these early class exercises lay the foundation for later discussions about what they are learning in their clinical placement environments� as the term progresses, students are encouraged to relate experiences from which they have learned something� divulging personal reactions to work experiences involves an element of risk� in my experience, students are prepared to take that risk if they feel supported and know that the risk will produce a positive result in the form of a validation of their feelings and encouragement for the future� the next step is to generate reflective writing from the material that is mined from class discussions� the translation of an informal discussion into an assessable piece of reflective writing is not a simple progression� what do we want from our students when we ask them to produce ‘a piece of work which demonstrate[s] genuine depth of reflection’?121 moon explains that taking the step from reflection to reflective writing involves various factors� it is important to consider the reason for the writing (personal, academic, assessable, to be presented to the class), who else might read it, and the students’ emotional state at the time of writing�122 roy stuckey sets out the importance of the creation of structures and protocols in order to assist students’ self-learning� he suggests that students should be given materials on the value of reflective thinking, that they should write journals and do self-evaluations during and at the end of the study period123 and that they need informative feedback�124 in defining reflective writing, jennifer moon articulates what it is not: • conveyance of information, instruction or argument • straightforward description (although there may be descriptive elements) • a straightforward decision about whether something is right or wrong, good or bad (i�e� not judgmental) 120 tummons, above, n 37, 475-6� 121 sparrow, above, n22, 73� 122 moon, above, n4, 186-7� 123 stuckey, above, n28, 824� 124 stuckey above, n28, 818� holding up the mirror 197 • simple problem solving125 moon explains that in the educational context, ‘reflective writing will usually have a purpose���it will usually involve the sorting out of bits of knowledge, ideas, feelings, awareness of how you are behaving���it could be seen as a melting pot into which you put a number of thoughts, feelings, other forms of awareness, and perhaps new information� in the process of sorting it out in your head, and representing the sortings out on paper, you may either recognize that you have learnt something new or that you need to reflect more with, perhaps, further input� your reflections need to come to some sort of end point, even if that is a statement of what you need to consider next�’126 michael meltsner writes about ‘stimulating reflective writing ��� to raise issues of professional values [as] ��� an alternative to the use of open-ended journal writing�’127 his aim is to deliberately force students to reflect on ‘who they are, what they believe and how this might play out in what they do or expect to do as lawyers�’128 meltsner, unlike duke and appleton129 stresses that he is ‘trying to stimulate reflection, not teaching a formal set of skills�’130 his methodology is influenced by his belief that ‘growth and development proceed from stimulating the natural agenda of the learner’ [and that] these narratives, conversations and personal assignments offer a writing experience that can be deeply supportive and nurturing�’131 meltsner requires students to submit short reflective papers every week�132 students are then given written feedback in the next class, and with students’ permission, their work is read out in class�133 the assignment topics are deliberately personal and designed to stimulate reflection about working as a lawyer� appendix c contains a list of meltsner’s assignment topics, to which i have added some of my own ideas� ogilvy defines the following as goals for journal assignments: a) to encourage the exploitation of the demonstrated connection between writing and learning; b) to nurture a lifetime of self-directed learning (especially in the context of self-awareness of learning styles; ‘journals can help students engage more deeply with what they learn about themselves’;134 c) to improve problem-solving skills; d) to promote reflective behaviour; e) to foster self-awareness;135 125 moon, above, n4, 187� 126 above� 127 meltsner m, ‘writing, reflecting and professionalism’, in (1998-1999) 5 clinical law review 455� 128 meltsner, above, 467� 129 above, and see also appendix a� 130 meltsner, above, n127, 463� 131 meltsner, above, n127, 467� 132 meltsner, above, n 127, 459-560� 133 students may elect not to share their papers with the rest of the class and retain their privacy if they wish� 134 ogilvy, above, n19, 69 135 ogilvy, above, n19, especially 80 – 82� 198 international journal of clinical legal education issue 18 f) to allow for the release of stress; and g) to provide periodic student feedback to the teacher136 whilst ogilvy specifically declares that his list of aims for the use of a reflective journal is not in any order of priority, he makes it clear that the promotion of reflective behaviour is ‘one of the principal goals of [his] teaching�’137 ogilvy strongly emphasises the use of the journal as a tool for encouraging reflective behaviour because it provides ‘a specific time and place in which to engage in reflection�’138 he also suggests using journals with a problem solving emphasis� he provides examples to demonstrate that students are reflective when they contemplate they still need to learn, when considering their relationship to the course material, when monitoring their own learning and when seeking to clarify values, examine assumptions or express tentative understandings, and also when writing about their experiences in legal education and how it affects their lives�139 students in my course augment their placement experiences by engaging in class discussions about what they are learning during the placement, in order to develop a critical perspective on such issues as legal ethics, professionalism, justice access, and law reform� they are challenged to consider their own personal values and beliefs and how these values might affect the choices that they make in later professional life� in addition to analysing and reflecting on their personal experiences, students are required to consider the role of legal professionals in the legal system and in society generally� there is no ‘black letter law’ in my course� it has been acknowledged that one of the challenges of modern legal education is that students need to be taken beyond their own assumptions about the parameters of what the study of law entails�140 this course recognises this need� students in my course are required to produce three pieces of written summative assessment: a seminar presentation, a critical incident report and a reflective portfolio� the critical incident report is a short (1000 words) reflective exercise, designed to prepare students for the larger reflective portfolio� in the critical incident report, students are required to identify a critical incident or situation that has taken place either during the first few weeks of their placement or in preparing for their placement� it may be critical because it was a learning experience, it was significant in some way, it identified an area of law that the student was either attracted to or repelled by, it may have generated excitement or influenced the student in some way� students are required to describe the incident and its impact and to reflect on the reason for the impact� this involves the students considering their own values, preconceived ideas and prejudices� it also involves a consideration of the perspectives of others involved in the incident� students must describe how they dealt with the incident and its impact and what they learned from the incident, including if they have learned something about themselves� finally, they have to consider how they will approach similar incidents in the future� (full details are provided in appendix i�) the questions are designed as prompts to encourage the students to reflect and also to avoid ‘writers’ block’� this assessment is summative (it is worth 25% of their final grade) as well 136 ogilvy, above, n19, 63� ogilvy points out that these goals are idiosyncratic and subject to constant revision� 137 ogilvy, above, n19, 75-76� 138 ogilvy, above, n19, 77� 139 see examples from student journals in ogilvy, above, n19, 77 – 79� 140 varnava t and webb j, above, n119, 363� 199 as formative� it is submitted early in the term and students are provided with extensive feedback to assist them with their reflective portfolio that they must submit at the end of the term� the desired outcome is that responses to formative feedback will produce an improvement in student writing� my personal reflection on this assessment activity has caused me to ensure that the assessment is aligned with the course aims� jonathan tummons has noted that there is an established body of literature positing that reflective practice should be a component of professional behaviour and development but he notes that the validity of the assessment of reflective practice is contestable�141 this led me to ponder the rationale behind giving a grade for the reflective exercises in my course and also led me to examine exactly what the assessment criteria are� i asked myself: what exactly am i trying to teach them? what am i trying to assess? revisiting the course objectives was (is) a useful activity to ensure that each assessment activity meets one or more of the learning objectives of the course� the table in appendix j addresses whether each of my course objectives are fulfilled by each particular assessment item� upon considering the taxonomies of bloom and gagne142, i decided that greater specificity was required in my assessment questions; a variety of alternative and more action-specific verbs was necessary� students are encouraged to be critical and not just descriptive, but the original wording of my assessment activity required my students to merely identify and describe (see appendix h)� realising that this was potentially confusing for them, i recently amended the wording to that set out in appendix i� the use of much more powerful verbs indicates to students that critical analysis is required� the improved language is more instructive and less ambiguous, in accordance with the principle that good assessment requires clear articulation of purpose, requirements, standards and criteria�143 the use of reflective journals as formative rather than summative assessment has been strongly advocated144 and many articles about reflective journals encourage the idea of providing feedback to students soon after the journal entries are written�145 however, in my experience, the submission of reflective writing as formative assessment only is rarely effective� ross hyams has investigated the advantages and disadvantages of grading reflective writing and concludes that ‘reflective journals can and should be graded’146 whilst simon rice has argued against grading in a clinical environment�147 my original practice was to invite and encourage students to send me extracts from their journals each week so that i could address any difficulties they were experiencing in their placements and also to give them constructive feedback on their writing� over many years, very few students availed themselves of this formative assessment opportunity� in 2011 i incorporated two reflective writing workshops into class time in order to ‘workshop’ their pieces and for them to critically examine each other’s writing� this formative experience offers students 141 tummons, above, n37� 142 bloom bs, (1956) taxonomy of educational objectives. the classification of educational goals� handbook, new york: david mckay co inc� 143 university of south australia, assessment principles and requirements [online]� availability: <http: //w3�unisa�edu� au/policies/manual/2012/s1-assessment%20principles%20and%20requirements�pdf> 144 tummons, above, n37� 145 see, for example, ogilvy, above, n19, 97 – 101 and sparrow, above, n22, 74� 146 hyams, r, ‘assessing insight: grading reflective journals in clinical legal education, (2010) 17 james cook university law review 25� 147 rice s, ‘assessing – but not grading – clinical legal education’ (2007) macquarie law wp 16, 1� holding up the mirror 200 international journal of clinical legal education issue 18 the opportunity to self-assess and peer-assess�148 this has resulted in a much stronger response from students seeking formative feedback on their journal entries� they then submit their final edited journals in the form of a portfolio at the end of the course� the portfolio requirements of my course are set out in appendix f� the reflective portfolio must contain a series of reflections written in a similar manner to the critical incident report� it must also contain reflections on and reference to the literature which has been included on their reading lists� students are expected to draw from their own experiences in order to illustrate and explain the articles that they have read� the portfolio is assessed and graded� it is hoped that students will have learned to identify ‘good’ reflective writing from the first piece of assessment and how they can improve it� the two assessment pieces are integral components of the course design; the design of the tasks is intended to have a significant impact on student learning�149 showing students written examples of what constitutes ‘deep’ reflection is extremely helpful, such as excerpts from past students�150 however, it is not always possible to do this, given the private nature of some reflective writing� moon provides a chapter entitled “resources” which includes a map of reflective writing, guidance for students, samples of reflective writing and exercises in reflective writing� these may be copied freely for use with learners�151 karen hinnett and the uk centre for legal education have also produced a series of resources about reflective practice which law teachers are encouraged to use and reproduce as resources (with appropriate acknowledgements)�152 moon suggests the use of a double entry journal in order to engage in ‘second order reflection’�153 students write on one half of a vertically divided page and leave the other side blank� the next time they write, students go through the initial material writing further comments� my experience to date suggests that only the very keenest students will do this; others may need to be encouraged in this task by enforcing it through summative assessment� i have yet to experiment with this idea� race154 suggests providing ‘cluster’ questions to focus students’ thinking, for example: a) what worked really well for you? b) why do you now think that this worked well for you? c) what are you going to do as a result of this having worked for you? another way to encourage deeper reflection is to encourage students to reflect on a situation/ event/ incident from a different perspective, such as the perspective of another person involved�155 for example, i ask students to reflect on a client interview from the point of view of the student and the client, and any other student (if interviews are conducted in pairs)� weinstein also notes that 148 brown s and knight p, (1994) assessing learners in higher education, london, philadelphia: kogan page, 51� 149 this is consistent with the assessment principles of the writer’s university� see above, n143� 150 e�g� sparrow, above, n22� 151 moon, above, n4, 2004� 152 hinett k, developing reflective practice in legal education, uk centre for legal education, university of warwick, 2002� 153 moon j, reflection in higher education learning (2001) pdp working paper 4, ltsn, 14� 154 above, n 36� 155 moriarty hj and mckinlay e, ‘reflective journals reveal the transformative nature of early community-based experience’, in focus on health professional education: a multi-disciplinary journal vol 10, no 1, 2008, 59� 201 reflection on relationships is important, as is reflection on values� getting students to reflect on the relationships involved in the clinical experience (e�g� student/client; client/other side; student/ supervisor; student/other student(s)) can be an excellent starting point for deeper reflection on an incident or experience that goes beyond mere description� asking students to reflect on their values in a given situation can also stimulate further self-awareness, especially if one student’s reaction differs from that of another student� in 1997, it was noted that ‘the literature on legal education contain[ed] only a few scattered references to journal writing by law students�’156 ogilvy has defined a journal as: ‘a regular, written communication from a student to a teacher, related to the courses of study, that is authored by the student at the request of the teacher and to which the teacher may respond in writing� the journal, unlike a diary, is only semi-private in that it is intended to be read by at least one person other than the author, the teacher� the journal tends to be more factual and objective than emotive and subjective, but its contents may span the continuum reflected by these terms�’157 ogilvy notes that of the thousands of student journals that he has encountered, ‘most do not seem to demonstrate sophisticated critical thinking, [but] overall they do consistently represent a quality of introspection and reflection that, while not deeply philosophical, is substantial�’158 for me, this raises three questions: 1� what is the purpose of journal writing in the clinical setting? 2� is it necessary or preferable to have students demonstrate sophisticated critical thinking? 3� if yes to question 2, then how do we as clinical teachers develop sophisticated critical thinking skills? ogilvy responds (as if anticipating these questions) that ‘the journal encourages writing; probing beneath the surface of problems; thinking more deeply about the materials, products and processes of learning; and taking more responsibility for their own learning� it offers some students a less threatening alternative to in-class questions and can provide a safe place for healthy release of the intense emotional stress that is generated by the law school experience�’159 this philosophy which appears to encourage the privacy of journals, is in contrast with the suggestions made by michael meltsner who encourages the sharing the journal entries and discussion of them in class� aiken recognises that peer pressure in law school can prevent students from discussing their personal feelings�160 her strategy for overcoming peer pressure ‘not to be personal’ is to ‘create opportunities for learners to use their own sense of justice in analysing legal problems and to make that a part of the ‘normal’ discussion’161 such as in small groups� aiken also notes that journal writing is a way to ‘offer learners a chance to reflect on their experiences, bring their own perspective to a problem, and analyse the issues without the pressure and immediacy of a class 156 ogilvy, above, n19� 157 ogilvy, above, n19, 56� 158 ogilvy, above, n19, 59� 159 ogilvy, above, n19, 60� 160 aiken, above, n103, 50� 161 above� holding up the mirror 202 international journal of clinical legal education issue 18 discussion� such an exercise can result in a disorienting moment162 (see above)� ogilvy points out that ‘[t]o be successful, the journal assignment must be presented to the students with care� it is important that the purposes and benefits underlying the assignment be presented fully to the students� it is also important that the teacher continually reinforce the value of the journal by making stimulating comments on journal entries before returning them to the students and, with appropriate regard to issues of privacy and confidentiality, by sharing student journals with the entire class�’163 the vulnerability of students writing about personal experiences merits consideration� students completing my course are usually in their final year of a law degree, often uncertain about their futures and often lacking in confidence about their skills� being objective about their performance in a work experience environment and submitting their reflection about their performance for scrutiny by the course co-ordinator can be a daunting prospect for many students� stephen brookfield, for example, has noted that ‘[n]o matter how much we may think we have an accurate sense of ourselves, we are stymied by the fact that we’re using our own interpretive filters to become aware of our own interpretive filters – the pedagogical equivalent of trying to see the back of one’s head while looking in the bathroom mirror�’164 michael devlin and others comment on the importance of providing feedback on reflective essays�165 their rubric for feedback, from which instructions can be developed, is at appendix b� wald and others view feedback as part of the process of interactive reflective writing166 i�e� ‘providing individualised guided feedback about their experiences to support learners during important transitions in an authentic, transparent manner’167 that ‘helps to foster students’ reflective capacity, self-awareness, and self-confidence as the insights they share are illuminated, reflection is invited with targeted queries, lessons are derived, and concrete recommendations are provided, as relevant�’168 wald et al emphasise that the provision of feedback creates a ‘commonality of experience’ within a ‘universe of shared experience and shared humanity�’169 wald et al use the brown educational guide to the analysis of narrative (began) for preparing feedback to students’ reflective writing�170 wald writes about how reflective writing by medical students when encountering death for the first time provides valuable opportunities for transformative professional growth and student well-being�171 feedback can guide students to 162 aiken, above, n103, 53� 163 ogilvy, above, n19, 106-7� 164 brookfield s, above, n25, 28� 165 devlin mj, mutnick a, balmer d & richards bf, ‘clerkship-based reflective writing: a rubric for feedback’ in medical education 2010, 1117-1147 at 1143� 166 wald hs, reis sp, monroe ad & borkan jm, ‘the loss of my elderly patient: interactive reflective writing to support medical students’ rites of passage,’ in medical teacher, 2010; 32(4): e178-e184� 167 wald, reis, monroe & borkan, above, e182� 168 above, e183� 169 maccurdy m, ‘from trauma to writing – a theoretical model for practical use’, in cm anderson & m maccurdy (eds), 2000, writing and healing: towards an informed practice, urbana, i l: national council of teachers of english� 170 wald, reis, monroe & borkan, above, n165, e179� see also reis sp, wald hs, monroe ad, borkan jm, 2010, ‘begin the began – brown educational guide to the analysis of narrative’, patient education counselling� doi:1�1016/j�pec�2009�11�014� 171 wald, reis, monroe & borkan, above, n165, e178� 203 acknowledge, explore and learn from their emotional experience, potentially bolstering resilience and student well-being’�172 similar emotionally powerful experiences can occur in the clinical legal education context – e�g� client being imprisoned; client accused of heinous crime e�g� paedophilia, difficult client; delivering bad news etc� this can also develop emotional intelligence and lessen the sense of emotional isolation�173 ogilvy also recommends using prompts to address some common problems when providing feedback; some of his suggestions are included in appendix e� conclusion this article has critically examined the vast scholarship about reflection and reflective writing in order to inform my own approach to teaching in this area as well as to add to the body of pedagogical knowledge about how reflection assists adult learning� in particular, the article has highlighted the different ways that reflection can be encouraged in the clinical context� many clinicians use reflection as a teaching tool; this article aims to disseminate the many varied and excellent suggestions that have been published� it is hoped that the compilation of these teaching ideas into one article will provide a useful resource for anyone involved in clinical legal education� for clinical supervisors, the suggestions may enhance their interactions with students and ultimately result in an improved service to clients� for academic staff engaged in classroom teaching, the ideas articulated here will hopefully contribute to student engagement with the aims of clinical programs and foster improved relations between students and teachers� finding articles about reflective writing and how to teach reflective writing has been an important step in my own learning journey towards a better understanding of what it means to teach ‘reflection’� this article shares my exploration of ideas about reflective writing in the hope that other clinicians will find the ideas useful, as indeed i have� over the next twelve months i plan to develop my own course to implement my findings and then seek feedback from students about the use of reflection in the course� the work of ogilvy, moon, ledvinka, devlin, aiken, sparrow, meltsner and others provide a rich source of inspiration to those of us who are always looking for new ways to develop the potential of our students� the various definitions of ‘reflection’ have caused me to consider what i actually want my own students to reflect on in their portfolios and what it means to be reflective and will be useful to incorporate within instructions to students� james’ work has encouraged me to continue to require students to reflect on their feelings and emotional reactions to clinical experiences, with a view to developing their emotional intelligence� i also plan to experiment with providing feedback to students on a weekly basis� i look forward to experimenting with other ideas that i have found in my extensive reading� one of the great joys of clinical legal education is the genuine camaraderie amongst those of us who teach and supervise clinical programs� this article has been written in the spirit of generosity and sharing that i have encountered in my contact with other clinicians and i hope that this article will be of benefit to other clinical teachers and supervisors, and ultimately our students and our clients� 172 wald, reis, monroe & borkan, above, n165, e183� 173 pololi lp and frankel rm, 2001 ‘reply to ‘vanquishing virtue’: the impact of medical education,’ acad med 17(12):1172 cited in wald, reis, monroe & borkan, above n165, e183� holding up the mirror 204 international journal of clinical legal education issue 18 appendix a marking criteria for reflective writing derived from duke and appleton’s skills inherent in the act of reflection174 • ability to describe the event or situation� • ability to identify and focus on salient issues from the situation� • ability to analyse own feelings and those of others� • ability to use knowledge from a variety of sources in order to analyse the situation� • ability to place the event or situation in the context of broader social, political and professional perspectives and to analyse how these perspectives influence the event or situation� • ability to draw together and summarise description and analysis in order to present a new perspective or to re-vision an existing perspective� • ability to identify and discuss the implications for practice that arise from analysis and synthesis� • ability to identify learning achieved and learning needs� • ability to draw up an action plan based on the implications raised� • ability to write clearly and coherently� • ability to accurately cite sources of knowledge� • ability to self-evaluate own work� 174 duke and appleton, ‘the use of reflection in a palliative care programme: a quantitative study of the development of reflective skills over an academic year’, 2000 journal of advanced nursing, 32(6) 1561, table 1, 1559-1560� 205 appendix b the devlin-mutnick-balmer-richards rubric for providing feedback on reflective essays.175 dimension 1: clarity of the elaboration of the reflection topic as a problem or question for enquiry. is it clear what triggered the reflection? can you complete the following sentence from the writer’s standpoint: in the course of this reflection, i would like to learn more about��� what is the writer’s dilemma or puzzle? dimension 2: consideration of relevant alternative perspectives of the problem does the writer include all relevant personal perspectives, including her own? are perspectives justified by data? are perspectives juxtaposed in a way that promotes additional reflection? dimension 3: expression of personal intellectual and emotional engagement in the reflection. is there evidence of personal struggle on cognitive and emotional levels? is it apparent why the writer chose this particular incident for reflection? what is at stake for the writer? dimension 4: commitment to strengthen or alter one’s personal understanding and subsequent related behaviours. is there an explicit statement of what was learned? is there evidence of movement from previously held assumptions or of the deepening of beliefs? is there a plan for action or commitment towards personal or systemic change? 175 michael j devlin, andrew mutnick, dorene balmer & boyd f richards, ‘clerkship-based reflective writing: a rubric for feedback’ in medical education 2010, 1117-1147 at 1143� holding up the mirror 206 international journal of clinical legal education issue 18 appendix c. meltsner’s questions to stimulate reflection, adapted by the author.176 how did i get here? (i.e. into law school do i like being a law student?) is law school what i expected? why or why not? how have i changed since i started at law school? do clothes make the lawyer? could i work with or for someone i don’t like? what do i think about lying? what is the first sentence of my autobiography? how do i want clients to think of me? would a client recommend me as a lawyer? why or why not? 176 meltsner, m, ‘writing, reflecting and professionalism’, in (1998-1999) 5 clinical law review 455, at 460� 207 appendix d aiken’s questions to assist the reflection process in class after a ‘disorienting moment’, adapted by rachel spencer.177 many of you appear moved and surprised by this story. why were we surprised by what we have learned? what surprised you? what values do you have that have perhaps shaped your reaction to this story? what structural realities of our lives encouraged us to believe ...? how are the law and society affected by the idea that poverty is escapable? who benefits from that belief? how does believing that everyone is like you influence your ability to be an effective lawyer? do you believe that class status is earned? why or why not? how do you benefit from the belief that your class status is earned? how does that belief affect current local and national policy initiatives? how are poor people harmed by that belief? how is access to justice affected by that belief? how does the element of surprise affect your ability to be an effective lawyer? 177 jane harris aiken, ‘striving to teach “justice, fairness and morality” in (1997-1998) 4 clinical law review 1, 24, 51-52� holding up the mirror 208 international journal of clinical legal education issue 18 appendix e feedback prompts to address common problems in journal writing [from hettich citing ogilvy, adapted by rachel spencer].178 problem in journal prompt from teacher concept(s) used superficially be more specific� check text/ notes� what do other authors say about this? do you agree or disagree? why? concept / information is inaccurate� not true� check text / notes� what does [author on reading list] say about this? comments not connected to course material� how does this relate to the course? explain� does this alter your attitude to [client centred practice / access to justice / etc]? illegible or long paragraphs� this paragraph is unclear – please revise and think about the concepts we have discussed in class so far� rewrite this using one concept per paragraph� repeats information verbatim; no personal contribution� don’t repeat information� give an example from your own workplace / clinic experience� what are your personal thoughts about this? what might the perspectives of others be? uses single concept where related concepts easily fit� also, you could consider [client-centred practice / law reform ideas / etc] here� entry or pattern of entries shows little evidence that concept is understood� briefly explain why this experience is an example of [client-centred practice / a problem with access to justice / etc]� entries appear to have been written (crammed) on one occasion or hastily� this seems to have been written in a hurry� write regularly, and revise your entries� take your time� do you feel the same now as when you first had this experience? this journal is for you, not me� explore and analyse your thoughts and reactions� uses concepts superficially that are covered later in course� write about this again after we have discussed it in class� what questions do you have? what answers have you found? 178 paul hettich, ‘journal writing: old fare or nouvelle cuisine? in (1990) 17 teaching psychology 36, reproduced in j�p� ogilvy, ‘the use of journals in legal education: a tool for reflection’ in (1996-1997) 3 clinical law review 55 at 100 from a presentation by paul hettich, journal writing for teaching and learning in psychology at the 99th annual convention of the american psychological association (san francisco, ca 1991)�36� 209 appendix f rachel spencer’s reflective portfolio assignment179 assessment item 3 reflective portfolio: 3,000 words this assessment focuses on developing the following graduate qualities:180 • preparation for life-long learning in pursuit of personal development and excellence in professional practice (gq 2); • commitment to ethical action and social responsibility as a professional and citizen, especially in relation to ethics in a legal professional context (gq 5); and • effective communication in professional practice and as a member of the community (gq 6)� students are required to maintain a reflective journal during the placement� one definition of a journal is: ‘a regular, written communication from a student to a teacher, related to the courses of study, that is authored by the student at the request of the teacher and to which the teacher may respond in writing� the journal, unlike a diary, is only semi-private in that it is intended to be read by at least one person other than the author, the teacher� the journal tends to be more factual and objective than emotive and subjective, but its contents may span the continuum reflected by these terms�’ j�p� ogilvy, ‘the use of journals in legal education: a tool for reflection’ in (1996-1997) 3 clinical law review 55, 56� the aims of keeping a journal are: • to encourage the exploitation of the demonstrated connection between writing and learning • to nurture a lifetime of self-directed learning • to improve problem-solving skills • to promote reflective behaviour • to foster self-awareness • to allow for the release of stress • to provide periodic student feedback to the teacher j�p� ogilvy, ‘the use of journals in legal education: a tool for reflection’ in (1996-1997) 3 clinical law review 55, 63� 179 legal professional and community service experience course information booklet study period 6, 2011, university of south australia, 2011� this is one of three assessable items for the course� the other two items are a seminar presentation and a critical incident report� 180 university of south australia graduate qualities available at <http://w3�unisa�edu�au/gradquals/default�asp> holding up the mirror 210 international journal of clinical legal education issue 18 the benefit of keeping a journal will be in direct proportion to the time you spend on it� you are invited and encouraged to send journal entries to me on a weekly basis so that we can engage in a ‘conversation’ about your placement and how it is going� it will also give you the opportunity to receive feedback about any problems you may be having or indeed to share in your successes and ‘high points’ of the placement� it will also enable me to give you ideas about how to reflect more deeply on certain issues before submitting your final portfolio� you are also encouraged to read widely about topics we cover in class� you are then expected to use the journal as the basis for either option 1 or option 2 of this assessment item� option 1: reflective portfolio the reflective portfolio is worth 50% of the final grade� your portfolio will consist mainly of your edited journal entries but it should also contain extracts from other writers (correctly attributed) and commentary and reflection upon what these writers have said about certain topics� the portfolio may also contain newspaper cuttings, tables, graphs, cartoons, quotes, notes about films and television shows, descriptions of conversations, and anything that you have found or written about that relates to your placement experience or topics covered in class� it will be a bit like a scholarly scrap book� all work of which you are not the author must be properly attributed in footnotes and a bibliography� the portfolio is not intended to consist of anecdotal recitation of activities� it is intended that the portfolio consist of students’ observations and insights into their experiences on placement in the context of the specific topics that we cover in classes� in particular, the portfolio must show your development as a reflective learner� you are expected to describe an experience, analyse what happened, why it happened, what you learned from it, and how you would approach it next time� your reflections must be critical reflections, not merely descriptive� the portfolio must contain: 1) your attendance record; and 2) at least four and a maximum of six of the following written items: • a reflective analysis of your preparation for the placement� • a reflective analysis of an ethical issue that arose within your placement� • a reflective analysis of an access to justice issue that arose within your placement� • a reflective analysis of a law reform issue that arose within your placement� • a reflective analysis of a client-centred practice issue that arose within your placement� • a reflective analysis of a client interview� • a reflective analysis of your personal goals for the placement and whether or not you have achieved those goals or perhaps changed the goals as the term progressed� this analysis should include reflection on your own learning, your performance in the placement and your achievements, as well as plans for personal, educational and career development� • a reflective analysis of an incident during your placement which involved you considering your personality type compared with the personality of someone else at the placement office (self-awareness)� 211 • a reflective analysis of your view of the role of lawyers in society in the context of your placement experience(s)� each item must be clearly identified under one of the above headings� each item may contain information or reflections from more than one day, especially if the incident took place over several days, or you want to talk about a series of events� you are also expected to integrate the material discussed in seminars with your reflections about your placement experiences� even though this is quite a personal piece of work you are still expected to write formally and to use proper footnotes and cite all articles correctly� remember that you will need to edit your work stringently� the writing is the first part of the job� editing it properly will take longer than the actual writing� the portfolio will be assessed according to the following criteria: 1) ability to identify and focus on salient issues from each situation; 2) analysis of your own perspective and the perspectives of others; 3) use of a variety of resources in order to analyse the situation and to cite them appropriately; 4) ability to place the event(s) or situation(s) in the context of broader social, political and professional perspectives and to analyse how these perspectives influence the event or situation; 5) identification of the learning that you have achieved and your learning needs; 6) ability to write clearly and coherently� option 2: project portfolio you may only select this option if you prepared the project plan for assessment item number 2� the submission of your project as assessment item 3 must include: 1) your attendance record; and 2) two of the following written items: • a reflective analysis of an ethical issue that arose within the project� • a reflective analysis of an access to justice issue that arose within the project� • a reflective analysis of a law reform issue that arose within the project� • a reflective analysis of a client-centred practice issue that arose within or because of the project� • a reflective analysis of your personal goals for the project and whether or not you have achieved those goals or perhaps changed the goals as the term progressed� this analysis should include reflection on your own learning, your performance in the placement and your achievements, as well as plans for personal, educational and career development� • a reflective analysis of an incident that occurred while working on the project which involved you considering your personality type compared with the personality of someone else at the placement office (self-awareness)� • a reflective analysis of your view of the role of lawyers in society in the context of your project� holding up the mirror 212 international journal of clinical legal education issue 18 • a reflective analysis of the success or otherwise of the project; and 3) a section including the work you have done towards the project� this must include drafts, plans, file notes of telephone conversations, meeting notes, research, and everything you have done to bring the project to its final form� this is particularly important if the project is to be handed to another student for completion of a further stage of its development� 4) a copy of the project plan that you submitted as assessment item 2, together with a reflective analysis of whether or not you abided by the plan, and if not, why not� 5) the final version of the project� this must include any written work, power point slides, reports, brochures, dvds, etc� if the final project included a presentation, please include as much evidence as possible about the presentation (e�g� photos) and include a detailed analysis of the presentation in the project report (see item 4 below)� 6) a project report including exactly what has been done in the project and what still needs to be done (if relevant)� the project portfolio will be assessed according to the following criteria: 1) reflective analyses: ability to identify and focus on salient issues from each situation; analysis of your own perspective and the perspectives of others; use of a variety of resources in order to analyse the situation and to cite them appropriately; 2) identification of the learning that you have achieved and your learning needs; 3) achievement of the project goal� 4) the overall effort put into the whole project and the overall final result� 5) ability to write clearly and coherently� 213 appendix g marking criteria for reflective portfolio181 fail pass credit distinction high distinction marking criterion 1: analysis & synthesis of experiences no coherent position discernible� no evidence of selfreflective analysis� placement experience is only partly clear� some evidence of selfreflective analysis� placement experience is clear� clear evidence of self-reflective analysis� placement learning experiences and impact are well articulated� clear evidence of selfreflective analysis at a high level� placement learning experiences and impact are clear and compelling� clear evidence of self-reflective analysis at a very high level� marking criterion 2: critical thinking negligible critical thinking� placement has been described but no evidence of interpretation or application of any principles of reflective learning beyond standard� placement has been analysed well in the context of reflective learning� limited critical thinking� student has clearly articulated the learning experiences of the placement� a high level of critical thinking� student has applied reflective learning principles to the placement in a sophisticated manner and has demonstrated a superior level of critical thinking� marking criterion 3 use of appropriate professional writing style and tone errors in grammar, spelling and punctuation, and overall poorly written� some errors in grammar, spelling and punctuation; overall writing style is satisfactory minor/very few errors in grammar, spelling and punctuation; overall uses a writing style that requires little amendment� no errors in grammar, spelling and punctuation, and overall uses a clear and concise writing style� no errors in grammar, spelling and punctuation; uses a sophisticated and professional writing style� marking criterion 4: use of resources no reliable sources used; no reference to seminar discussions; or sources not appropriately cited� uses a few reliable sources with citation� limited and superficial reference to seminar discussions� uses a range of reliable sources with correct citation� good references to seminar discussions� uses a broad range of pertinent resources with correct citation style� integrates seminar discussion topics, demonstrating high level of engagement with materials� uses a broad range of pertinent resources, with correct citation style; evidence of independent research� sophisticated integration of seminar discussion topics� marking criterion 5 overall presentation poorly presented; portfolio has not been maintained appropriately over the term� adequately presented; portfolio has been maintained at a basic level� well presented� portfolio has clearly been maintained, edited and improved across the term� very well presented� portfolio has been maintained across the term and has been well edited to a high standard� exceptionally well presented� portfolio has clearly been maintained and improved across the term and edited to a sophisticated level� 181 legal professional and community service experience course information booklet study period 6, 2011, university of south australia, 2011� holding up the mirror 214 international journal of clinical legal education issue 18 appendix h original assessment item 2182 assessment item 2 critical incident report this assignment focuses on developing the following graduate qualities: • life-long learning in pursuit of personal development and excellence in professional practice (gq 2); • commitment to ethical action and social responsibility as a professional and citizen, especially in relation to ethics in a legal professional context (gq 5); and • written communication skills: in particular, your ability to use clear, effective and grammatically correct english (gq 6) and your ability to write reflectively� word limit: 1000 words� instructions 1� identify a critical incident or situation that has taken place either during your placement or in preparing for your placement� it may be critical because: • you learned something from it; • it worried you in some way; • it was significant in some way; • it identified an area of law where you now think that you would like to work or would not like to work; • it excited you; or • it has influenced you in some way� 2� describe the incident� 3� describe the impact that it has had upon you� 4� describe why you think this incident had this impact on you� is there some background to the incident? has it made you question your values? 5� consider the perspectives of others involved in the incident� 5� describe how you dealt with the incident and its impact� 6� describe what you have learned from the incident� have you learned something about yourself? 7� how will you approach similar incidents in the future? 182 legal professional and community service experience course information booklet study period 6, 2011, university of south australia, 2011� this is one of three assessable items for the course� the other two items are a seminar presentation and a critical incident report� 215 appendix i revised assessment item 2183 assessment item 2 critical incident report this assignment focuses on developing the following graduate qualities: • life-long learning in pursuit of personal development and excellence in professional practice (gq 2); • commitment to ethical action and social responsibility as a professional and citizen, especially in relation to ethics in a legal professional context (gq 5); and • written communication skills: in particular, your ability to use clear, effective and grammatically correct english (gq 6) and your ability to write reflectively� word limit: 1000 words� instructions 1� identify a critical incident or situation that has taken place either during your placement or in preparing for your placement� it may be critical because: • you learned something from it; • it worried you in some way; • it was significant in some way; • it identified an area of law where you now think that you would like to work or would not like to work; • it excited you; or • it has influenced you in some way� 2� interpret the incident from the perspectives of everyone involved� 3� evaluate and explain the impact that the incident has had upon you� 4� evaluate and appraise how you dealt with the incident and how you dealt with its impact on you� 5� examine, assess and evaluate what you have learned from the incident� 6� formulate and defend a plan of how you will approach similar incidents in the future� 183 legal professional and community service experience course information booklet study period 6, 2011, university of south australia, 2011� this is one of three assessable items for the course� the other two items are a seminar presentation and a critical incident report� holding up the mirror 216 international journal of clinical legal education issue 18 appendix j course objectives as fulfilled by each assessment item. objective 1: on completion of this course, students should be able to explain the practical operation of the law in a workplace or community service setting. this objective may be fulfilled by this assessment, if the student selects an incident that involves the operation of law, especially as to how it has affected a particular client� however, this objective is not the primary focus of this assessment� this objective is fulfilled in the other two items of assessment� on the other hand, this assessment is formative in that it provides students with an opportunity to practise their reflective writing, which is an essential component of assignment 3 which does fulfil this objective� this assessment provides scaffolding for the skill of explaining, the requisite verb in the objective� objective 2: on completion of this course, students should be able to reflect upon and evaluate their own learning and performance in a workplace or community service setting. assignment number 1 does fulfil this objective� students must provide answers to specific questions that encourage and lead them to reflect upon and evaluate their own learning and performance in their placement environment� students are provided with a lecture and materials on how to reflect� the assignment questions are carefully and deliberately worded, with the aim that in the other assignments, the students will ask themselves these questions, and base their assignments on similar reasoning and critical thinking� in particular, this introduction to reflective writing includes considering the perspectives of others, thinking about what has been learned from an incident and how to approach similar incidents in the future� objective 3: on completion of this course, students should be able to identify and articulate the dynamics of various relationships that can arise in a workplace or community service setting. prior to submitting this assignment, students participate in a class that explores personality types and the idea of looking at problems from different perspectives, and the fact that different personality types approach problems in different ways� in focussing on the different perspectives of all those involved in the chosen incident, this objective is fulfilled by this assignment� objective 4: on completion of this course, students should be able to evaluate the roles of lawyers in the australian legal system and in australian society generally by reference to their workplace or community service experience. this objective might or might not be fulfilled by this assignment, depending on the incident chosen� however, this assignment provides scaffolding for later assignments which do address this objective� objective 5: on completion of this course, students should be able to discuss the importance of legal ethics and professional conduct and demonstrate an appropriate ethical and professional attitude. if a student chooses an ethical issue as the critical incident, this objective will be fulfilled� however, this objective may not be entirely fulfilled by this assignment� in the later reflective portfolio assignment, students are required to critically reflect upon and discuss the importance of legal ethics and professional conduct, so this assignment provides scaffolding for the skills required to complete that reflective work in the later assignment� practice report – teaching and learning in clinic learning by experience on the innocence project in london: the employer/ employee environment louise hewitt, lecturer, school of law, university of greenwich introduction the innocence project london is a pro bono project dedicated to investigating wrongful convictions in the context of individuals who claim actual innocence i.e. they did not commit the crime for which they have been convicted.[footnoteref:1]  law students undertake work on the cases of convicted individuals who have maintained their innocence but have exhausted the criminal appeals process. the only avenue available to these individuals is to make an application to the criminal cases review commission (ccrc), which was set up to investigate the cases of people who believe they have been wrongfully convicted.[footnoteref:2] the ccrc has the power to refer a case back to the court of appeal but requires new evidence or a new legal argument not identified at the time of the trial, which might have changed the whole outcome of the trial had the jury had been given a chance to consider it. [1: the distinction between wrongful convictions and miscarriages of justice in the context of an innocence project is articulated in michael naughton, ‘wrongful convictions and innocence projects in the uk: help, hope and education”, (2006) web journal of current legal issues. the term wrongful conviction has however, been used in the context of the conviction of an individual secured as a material legal error where the individual concerned may not be innocent. actual innocence typically means that the individual did not commit the crime of which he has been convicted. the discussion over the use of actual innocence is not the focus of this paper.] [2: criminal cases review commission https://ccrc.gov.uk/about-us/what-we-do/ ] innocence projects were developed in the united states of america (usa) and they have now spread globally, to include the netherlands, japan and canada as well as in the united kingdom. as such, innocence projects which meet the necessary criteria can apply to become members of the innocence network, which is based in new york. at present the innocence project london is the only uk project that it a member of this network. whilst the notion of innocence projects has been much debated in literature[footnoteref:3] the purpose of this paper is to present the pedagogy of the innocence project london (hereinafter ipl) and the meaningful learning opportunity it provides to students. the pedagogy combines experiential learning with elements of work based learning to create an employer/ employee environment. law students are ‘employed’ to work on the ipl where the employment process starts with a two-stage application. the clinical learning model on an innocence project is distinct from the traditional clinic approach, in that students start work at the end of a case rather than at the beginning. the problem-solving therefore is developed in the context of critical judgement based on what happened when the case was decided in court as opposed to how the case should be presented in court. the learning for the students has been significant. [3: some interesting perspectives can be found in: margaret raymond, the problem with innocence, (2001) 49 clev.st.l.rev. 449: jan stiglitz, justin brooks, & tara shulman, (2002) “the hurricane meets the paper chase: innocence projects new emerging role in clinical legal education”, 38 cal. w. l. rev. 413: daniel s. medwed, (2003) “actual innocents: considerations in selecting cases for a new innocence project”, 81 neb. l. rev. 1097. for a uk perspective see stephanie roberts and lynne weathered, “assisting the factually innocence: the contradictions and compatibility of innocence projects and the criminal cases review commission”, (2008) oxford journal of legal studies, pp 1-28 and hannah quirk, “identifying miscarriages of justice: why innocence in the uk is not the answer”, (2007) 70 (5) mlr 759-777] 1. the ipl pedagogy the pedagogy of any innocence project, by virtue of the nature of the work, is underpinned by the experiential learning model from clinical legal education,[footnoteref:4] but it provides a very different learning process for the student.[footnoteref:5] as distinct from the law clinic model which requires an understanding of what facts are presented as agreed or considered insignificant,[footnoteref:6] cases accepted by the ipl have already been decided and appealed. students are required to disentangle them through an extensive investigation of fact alongside research into substantive law, to understand how and why their client was convicted. the students work is supervised by both an academic and a practising lawyer. the former provides support and advice on learning the law, whilst the latter provides practical advice and experience on how a court would consider any new evidence or legal arguments. there are two ways a student can work on the ipl, as a volunteer case worker or by selecting it as a third-year optional course. [4: for a full outline of what clinical legal education is see richard j wilson, “training for justice: the global research of clinical legal education”, penn state international law review: 22 (3), article 5 at part i] [5: keith a. findley, “the pedagogy of innocence: reflections on the role of innocence projects in clinical legal education”, clinical law review, (fall 2006), 13, 1101at 1105] [6: findley, “the pedagogy of innocence: reflections on the role of innocence projects in clinical legal education” ] 1.1 learning by experience rather than being taught in a passive style through a dissemination of information from the lecturer to the student, learning on the ipl is as a result of direct involvement with the case. the cases on the ipl place emphasis on the importance of facts, the value of being detailed, but also of being sceptical.[footnoteref:7] employees/students approach the facts of a case in order to tell the story, and then examine the facts in order to determine what went wrong and what new evidence or new legal argument might be used to prove innocence. there is great value in this process, where the employee/student learn how to be thorough, learn how to keep going when one area of investigation reaches a dead-end, and learn how to creatively approach a complex problem.[footnoteref:8] these are skills which can only be developed by learning through experience,[footnoteref:9] which draws upon the clinical legal model that is rooted in david kolb’s cyclical learning model for reflective practice.[footnoteref:10] the four stages; concrete experience, reflective observations, abstract conceptualisation, and active experimentation are all part of the process that students go through on the ipl when they analyse and problem solve in what is an unstructured situation.[footnoteref:11] [7: findley, “the pedagogy of innocence” 1111] [8: findley, “the pedagogy of innocence” 1109] [9: r. j sternberg and l.f zhang, eds, perspectives in cognitive, learning and thinking styles, in experiential learning theory: previous research and new directions, (nj: lawrence erlbaum, 2000). ] [10: d kolb, (2014) experiential learning: experience as the source of learning and development, 2nd ed, (new jersey: pearson education)] [11: findley, “the pedagogy of innocence” 1106 ] it is unstructured because each case is unique as to the substantive and sometimes procedural law students have to research and learn, and the legal issues which go beyond the law undergraduate curriculum.[footnoteref:12] for employees/students on the ipl, their experience as part of that learning cycle[footnoteref:13] continually evolves depending on the subject matter of the cases that are accepted. for example, a current ipl case is one of murder, but the students had to consider a number of issues that went beyond the offence for which the client had been convicted. this included medical evidence concerning the injuries of the victim and the medical history of the client who was registered disabled, the latter had not been considered in court at all. another case has required students to consider expert evidence which meant researching this area of law to identify how an expert is defined by the law and the parameters in which they can give evidence. the learning that derived from these issues provided a good opportunity for students to start understanding about the importance of finding and proving facts, as well as legal analysis.[footnoteref:14] where the students start their work after the trial and appeal have been decided, they are given a platform on which to critically reflect on how the criminal justice system has worked, and how it might work differently and more effectively.[footnoteref:15] this also includes the limits of the court, solicitors and barristers.[footnoteref:16] [12: daniel s. medwed, “actual innocents: considerations in selecting cases for a new innocence project”, (2003) 81 neb. l. rev. 1097 ] [13: kolb, experiential learning.the kolb learning cycle operates in four stages; concrete experience, reflective observation, abstract conceptualisation and active experimentation] [14: findley, “the pedagogy of innocence” 1132 ] [15: jan stiglitz, justin brooks, & tara shulman, (2002) the hurricane meets the paper chase: innocence projects new emerging role in clinical legal education, 38 cal. w. l. rev. 413 ] [16: findley, “the pedagogy of innocence” 1132 ] the different subject matter of the cases and their lack of obvious direction can also present a challenge to the supervision of the ipl. unlike legal clinics which normally offer services in specific areas of law, the unpredictable nature of the subject matter makes it difficult to apply a consistent case management strategy.[footnoteref:17] aside from putting together timelines for the prosecution and defence which need to be done for every case, resolving any issues will depend on the offence that has been committed and the evidence that was adduced. there is however, much to draw on that provides a sound basis for the development of transferable skills which students can take with them when they graduate. [footnoteref:18] these include: effective time management, the importance of finding and proving facts, good organisation, and exposure to the people they will come across in their professional legal careers such as supervisors, clients, barristers and solicitors.[footnoteref:19] they also develop skills that meet the benchmark standards in law, which include, but are not limited to: the ability to recognise ambiguity and deal with uncertainty in law, the ability to communicate orally and in writing in relation to legal matters, to engage with their own personal and professional development, the ability to work collaboratively, the ability to use feedback effectively and the ability to conduct self-directed research.[footnoteref:20] [17: medwed, “actual innocents” 1097 ] [18: many of these skills are in the recommendations from the legal education and training review, “setting standards, the future of legal services education and training in england and wales,” june 2013 ] [19: stiglitz, brooks, & shulman, “the hurricane meets the paper chase” 413 ] [20: qaa, subject benchmark statement law, part a: setting and maintaining academic standards, july 2015] 1.3 the employer/employee environment underpinning the experiential learning pedagogy, the ipl has incorporated aspects of work based learning (wbl).[footnoteref:21] the purpose of which has been to stimulate an environment where learning is not only acquired through experience, but where it develops in response to workplace issues.[footnoteref:22] some of the issues students experience in the context of the legal workplace include putting together bundles under the constraints of time, researching areas of the law they have not yet learnt, drafting directions to experts and sorting through case files. this has been particularly effective in enabling them to engage critically and reflectively with their learning,[footnoteref:23] whilst providing them with a sense of personal value for the input they have in the case. the elements of wbl which manifest in the project[footnoteref:24] and will be examined in greater detail include performance related tasks such as writing reports and carrying out research; solving problems in the context of finding new evidence or a new legal argument to take to the ccrc; the employees/students learning from their work activities which can include a new aspect of substantive law (previous examples include bad character and hearsay evidence); the employees have to work as part of a team, which requires effective cooperation, patience and finding ways to work with different characters and different expertise; the enhancement of performance, where the employees are encouraged to be altruistic in the development of their skills in academic writing and referencing and the detail required for research.[footnoteref:25] some of these skills, whilst unique to the practice of law, do help to increase the student’s employability when they graduate. [21: j flanagan, s baldwin and d clarke, (2000) works-based learning as a means of developing and assessing nursing competence, journal of clinical nursing, vol 9, 3, 360-368. see also “all and any learning that is situated in the workplace and arises directly out of workplace concerns” per brian stanley lester and carol costley, (2010) work-based learning at higher education level: value, practice and critique. studies in higher education, 35 (5). pp 561-575 ] [22: j. gear, a. mcintosh, & g. squires, (1994) informal learning in the professions. kingston-upon-hull: university of hull department of adult education; m. eraut, s. steadman, f. maillardet, c. miller, a. ali, c. blackman, j. furner j. & c. caballero (2005) learning during the first three years of postgraduate employment. swindon: economic and social research council (project linea); m. eraut, & w. hirsh, (2007) the significance of workplace learning for individuals, groups and organisations. oxford: university of oxford (skope monograph 6). ] [23: brian stanley lester and carol costley, (2010) work-based learning at higher education level: value, practice and critique. studies in higher education, 35 (5). pp. 561-575 ] [24: e foster, (1996) comparable but different: work based learning for a learning society, wbl project, final report university of leeds 1994-96 at pp 20-21] [25: jb biggs, k collis, (1982) evaluating the quality of learning. the solo taxonomy (new york: academic press)] although the learning does not take place in the offices of a law firm, the ipl office is considered by students to be akin to that space. the students understand that they are employees working for the ipl, and the skills and attitudes they develop encourage them to take responsibility for their own learning.[footnoteref:26] this forces them to adopt a deeper approach to their learning because they become actively interested in the content of the case.[footnoteref:27] a number of students draw upon their own experiences to understand the subject matter in a way that is personally meaningful, leading to an interactive process where you can see them trying to understand ideas for themselves.[footnoteref:28] this process also encourages the employees/students to question their assumptions about the law or legal practice, which is an important part of conceptualizing their knowledge.[footnoteref:29] the role of the project manager represents that of the employer in the context of facilitating learning and encouraging a more self-directed approach[footnoteref:30] by nurturing the student’s sense of responsibility. a skill which is essential to developing professional ethics. the role of the solicitor or barrister (working probono with the ipl) is one of directing and mentoring the employees to undertake tasks as they would in a law firm, but which are directly relevant to the needs of the case. the use of the employer/employee relationship is a way of integrating the experience and expertise associated with wbl with the concept of learning by experience. by embedding it within a discipline context it has been effective in providing opportunities for students to develop their legal skills. [26: chapman and e hawkins (2003) work-based learning: making a difference in practice. nursing standard 17(34), 39-42] [27: n entwistle, (2005) ‘contrasting perspectives on learning, in f marton et al, eds the experience of learning originally published edinburgh: scottish academic press.] [28: g light, r cox and calkins, (2014) learning and teaching in higher education. the reflective professional, 2nd ed (sage publications) at chapter 2] [29: joseph raelin, a model of work -based learning, organisational science, vol 8, nos. 6 (nov-dec 1997), 563-578 at 564] [30: foster e. (1996) comparable but different: work based learning for a learning society, wbl project, final report 1994–96, university of leeds at pp20-21] combining theory with practice has not been without its challenges. the balance between the needs of the client and the educational requirements of the students is consistently under scrutiny. the volunteer employees/students have to prioritise their academic studies, whilst the employees/students who choose the ipl as an option have to balance their work with the other courses they have chosen. the needs of the client however, can become a competing priority, especially as the employees/students develop their knowledge and understanding of the case. instilling professionalism through the employer/employee relationship has required careful management. the notion of the employees/students constructing identity and meaning in their work[footnoteref:31] develops quicker in some than others, as do details such as time keeping and organisation. the project manager has to ensure that students have time to reflect on what professionalism means to them, so that they identify what they have learnt in this context. working in small groups has and will continue to be a challenge to the students that requires consistent facilitation. as random groups[footnoteref:32] it is inevitable that there will be behaviours which require managing in order that they do not damage the group work. the project manager as a facilitator also needs to ensure their behaviour does not damage the group work.[footnoteref:33] this requires effective communication and reflection on how any issues should be dealt with, or could be dealt with better. [31: e hoyle, (1995) changing conceptions of a profession, in h. busher and r saran (eds) managing teachers and professionals in schools (london, kogan page)] [32: p race, making small-group teaching work, in p race, (2006) the lecturer’s toolkit, (3rd ed: london: routledge)] [33: race, making small-group teaching work, in the lecturer’s toolkit] 2. features of work-based learning the following features of wbl are those that form part of the pedagogy of the ipl, where selfknowledge and expertise derived from the work place are brought together alongside knowledge gained through academic study. [footnoteref:34] this underpins the four stages of the experiential learning model. [34: j flanagan, s baldwin and d clarke, (2000) work-based learning as a means of developing and assessing nursing competence, journal of clinical nursing, 9 (3) pages 360–368 at 363] 2.1 performance related tasks the employees/students carry out tasks that could arise in legal practice, which, provide them with a particular experience to extrapolate learning from. this begins with the two-stage application process for all students who wish to work on the ipl.[footnoteref:35] the application to work on the ipl is similar to one that could be experienced when applying for a job. in the first stage, the students are asked to write a personal statement, and investigate and write a report on an area of law that they have not been taught. this is used to assess writing and research skills and the ability to follow instructions, a process that is considered good practice by the innocence network.[footnoteref:36] applicants who are deemed successful at stage one against the relevant criteria[footnoteref:37] then progress to stage two for an interview with the ipl project manager and director where they also present their investigation. the previous approach had been to ask applicants to write an essay based on a set question, but this limited how well the students could articulate their own thoughts. the notion of writing a report based on having to research and investigate a point of law limits the possibility of students drafting directly from websites or articles, and demands that they have to think critically about what they are doing and how they present it. with the two-stage process, the students have to work to understand what is being asked of them, and by virtue of the two stages they demonstrate a commitment to want to be part of the project. [35: both students who wish to volunteer in their second and third year and students who want to choose the ipl as a thirdyear optional course.] [36: justin brooks (californian innocence project) seth miller (florida innocence project) and joe bodenhamer (wrongful conviction project, ohio). “creating and maintaining and innocence organisation,” innocence network conference, march 2017] [37: these include correct referencing, a good standard of academic writing and following the instructions set out for stage one.] other work based related tasks include writing. this normally starts with the employees/students identifying how the client was convicted of the offence(s), breaking it down into elements and showing what evidence would be required to prove each one, before moving on to how the prosecution proved the offence. when an area of interest has been identified, for instance the use of expert witnesses, the employees/students will set out the substantive law and determine how it has been applied in the case, including the necessary judicial directions. these have to provide a precise and comprehensive analysis, and they are a good exercise that proves fruitful in the development that students show over the course of the academic year. for all cases, employees/students are required to develop a timeline for both the defence and the prosecution, separately at first, before merging them into one. this activity is normally carried out in the first 3-4 weeks because it helps to provide an understanding of the facts in the case and how the client was convicted. the employees/students have reflected on how useful the process of case management, putting together a bundle and producing the timelines has been to them, not only because they can start to understand the sheer volume of material that solicitors and barristers have to work with, but because they start to become familiar with the detail and facts of the case. eventually the employees/students are asked to set out the history and background of the case in the format of a legal submission. this process not only enables the employees/students to use the timelines they have put together, but to cross reference them with the relevant case files, such as the defence statement, the prosecution case summary, the agreed facts etc. this will eventually be used in the application to the ccrc so they have to be written and set out clearly. this work is indicative of the standards required in legal practice, but it also balances the need for academic knowledge with professional competence.[footnoteref:38] [38: qaa (2010) employer-responsive provision survey: a reflective report. the quality assurance agency for higher education] the project manager has the responsibility of balancing the requirements of completing these tasks to the standard required, against the employees/student’s other academic studies. from experience the required 4 to 6 hours of work on the ipl can be managed alongside preparation for lectures and seminars. evaluations indicate that students understand in some weeks they will need to work the full 6 hours or more in some instances, to ensure the required tasks are completed, yet in other weeks their tasks can be completed in less time. when, however, coursework deadlines start to loom, the employees/students have felt the pressure of the additional workload. one solution to this has been for the project manager to map out coursework deadlines for each group of employees/students and to give consideration to them when setting work. this has been proven to minimise the tension between meeting academic deadlines and fulfilling the tasks for the case. once the employees/students meet their client, which they do shortly after completing the defence and prosecution timelines, the importance of the work they are undertaking starts to become a reality. it is at this point, that the employees/students often start to take ownership of their work and identify with what they are doing, in the context of the client being the recipient of their efforts.[footnoteref:39] whilst the employees/students become invigorated, the project manager needs to ensure this enthusiasm does not overtake any academic requirements from other courses. regular meetings with each group, alongside consistent monitoring of the work being done are just two ways in which this can be achieved. [39: s chandler and p robotham (2006), extending the comfort zones: loosening the clinical straight jacket, international journal of clinical legal education conference. london institute of advanced legal studies] where the subject benchmark statement for law is now predominantly skills based, these tasks directly support the employees/student’s development in researching and retrieving accurate, current and relevant information from a range of sources, alongside their ability to communicate in writing.[footnoteref:40] tasks directed by the solicitor or barrister have involved drafting directions to an expert to review evidence and putting together bundles containing the evidence to be reviewed. the employees/students have had to research the experts they wish to approach to conduct the review pro bono, by identifying individuals whose field of expertise is most relevant to the evidence to be reviewed. this process has exposed the employees/students to understanding how to identify gaps in their own knowledge and subsequently acquire new knowledge, a skill which is highlighted in the subject benchmark statement for law.[footnoteref:41] [40: subject benchmark statement, law, july 2015 http://www.qaa.ac.uk/en/publications/documents/sbs-law-15.pdf ] [41: subject benchmark statement law, july 2015 http://www.qaa.ac.uk/en/publications/documents/sbs-law-15.pdf ] 2.2 solving problems problem-solving requires the employees/students to actively experiment with their knowledge. they need to work together and co-operate with each other embracing the different skills and expertise each have, which, in turn leads to new skills being developed and shared expertise.[footnoteref:42] the regular meetings between the teams of employee/students helps everyone to participate in joint problem solving. the problem at the forefront of the learning process is the substance of the application to the ccrc. in much the same way as problembased learning the knowledge and skills are acquired, rather than communicated.[footnoteref:43] the employees/students have to find, frame and analyse the issues themselves, enabling self-directed learning and the time to understand the material more deeply.[footnoteref:44] [42: j flanagan, s baldwin and d clarke, (2000) work-based learning as a means of developing and assessing nursing competence, journal of clinical nursing, 9 (3) pp 360–368 at 364] [43: r batty, (2013) well there’s your problemthe case for using pbl to teach law to business students, 47 law teacher, 243 ] [44: j macfarlane and j manwaring, (1998) using problem-based learning to teach first year contracts 16 journal of professional legal education, pp 271-298 at 272-274 ] initially the employees/students are often faced with smaller problems such as a mass of case files, much of which they have never seen before. if they are lucky the files are ordered and indexed, but more often than not they arrive in disarray. this requires them to go through every document and ascertain what they have and then index it for the purpose of the ipl case management system. at the same time, the solicitor or barrister working pro bono on the case may require them to produce a bundle of all the essential documents. this begins the development of organisation and time management, which is an important lesson for their legal careers. their academic lives are scheduled around lectures and seminars and dates for final exams, but legal practice is not so neatly arranged. as a solicitor or barrister, they could start the week expecting to work on one case, but end up not opening that file because of a new client or emergency in an existing case.[footnoteref:45] [45: stiglitz, brooks, & shulman, “the hurricane meets the paper chase” 413 ] it is during the process of problem-solving that the employees/students experiment using their conceptual knowledge. theory-based classroom experiences sometimes present solving problems as neat packages.[footnoteref:46] the reality of case work on the ipl removes this impression. the knowledge invariably has to be modified in order to adapt it to the specific problem they face, meaning that the employees/students have to change their approach in mid-stream, negotiate and think independently.[footnoteref:47] many cases do not follow an obvious trajectory,[footnoteref:48] so the problems can range in their complexity depending on the facts of the case, the evidence adduced at trial and the judicial directions required for the jury. the students have to consider how the law has been applied and whether it was done so correctly, and whether it could be applied differently. thus, the relationship between academic theory and the practice of law can be demonstrated. previous thinking outside the box has included drafting a new legal argument concerning eye -witness identification based on the use of the turnball judicial directions.[footnoteref:49] another example has been identifying what to ask an expert in order to rule out the possible circumstances in which a body could end up in a well almost upright, with no signs from the post-mortem of it having been lowered using a rope. [46: joseph raelin, a model of work -based learning, organisational science, vol 8, nos. 6 (nov-dec 1997), 563-578 at 566] [47: raelin, “a model of work -based learning” 566] [48: medwed, “actual innocents” 1035 ] [49: turnbull [1977] qb 224, where the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused – which the defence alleges to be mistaken – the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification.] 2.3 learning from work activities/reflective practice the process of reviewing transcripts, police reports, witness statements and talking to the client requires students to impose their critical judgement on what they are reviewing and to form a plan as to how best to solve the issues. it is through these activities that the employees/students conceptualise their knowledge. these activities all encourage the employees/students to work autonomously, and to take responsibility for their learning which can take place without direct instruction. they manage their own learning in the context that together the employees/students develop confidence to ask questions in order to understand what they need to do. by adopting the approach of an employer within an academic course, it has created a safe learning environment which encourages the development of students as independent learners. the activity that produces a significant amount of learning for the employees/students is visiting their client in prison, seeing first -hand the security procedures and the environment that they live in. they start to empathise with the impact that being in custody can have on an individual, whilst at the same time they begin to understand the significance of their work. these visits are often done at the start of the case, but not until they have understood the facts as presented in the case files. this is because of the need to ask the client questions about facts that don’t make sense, or to ask for information that is missing and this cannot be done without having a sufficient understanding of the case. the employees/students are expected to come up with questions they would like the client to answer on the legal visit. the students undertake training with the project manager and their solicitor or barrister on the use of open questions, how to approach sensitive questions and how to phrase a question. during the visit the employees/students are encouraged to lead the questioning but they are supported either by the project manager or the lawyer who accompanies them. a note of the meeting is circulated to the other team members which is then used to reflect on the answers given by the client. it is at this point that the employees/students often start to conceptualise their theories as well as consider new questions. whilst only those students who choose the ipl as an option in their final year are assessed in terms of passing the course, all employees/students are encouraged to reflect on what they have learnt. the use of work-based learning can only be successful if the work environment supports the process of reflection, and encourages the employees/students to understand and respond to their own learning.[footnoteref:50] reflection is the thread that draws together both the volunteers and option employees/students. [50: greg light, roy cox, susanna calkins, (2014) learning and teaching in higher education. the reflective professional, 2nd ed (sage: london) p226 ] the activities undertaken as part of working on a case can be described as formative where they aid development, improvement and learning. the means of summative assessment are a portfolio of work and an extended essay, the topic of which can be connected to the case the employees/students have been working on or on an issue connected to wrongful convictions or miscarriages of justice. the scope is intentionally broad, to allow for a range of choice and variety. these means of assessment offer an opportunity for employees/students to not only use the skills developed whilst working on the ipl, but to also identify them. this helps them to realise their own learning and then articulate this for future employment. the extended essay provides a platform to demonstrate some of the key skills that have been developed whilst working on the ipl, that of research, identifying an issue or question that needs answering, academic writing to a good standard, accurate referencing, and the ability to set out complex issues clearly and concisely. the ability of the employees/students to choose what they write about is important for them as independent learners and their engagement with the subject matter. over the years, it has become evident that the portfolio underpins the pedagogy of the ipl, providing respect for individual differences and the varied contexts in which people work. [footnoteref:51] the portfolio allows for the employees/students to showcase the work they have done on the ipl, for example research into the offence, directions to an expert, a comparison of medical reports, the defence and prosecution timeline. this list is not exhaustive.[footnoteref:52] the notion that the employees/students can build up a picture of their experience on the ipl, underpins their learning through practice and the sense of responsibility they have shaped towards that learning.[footnoteref:53] in the same way they are encouraged to take ownership of the case they work on, they have to take responsibility for what they include in their portfolio. [51: greg light, roy cox, susanna calkins, (2014) learning and teaching in higher education. the reflective professional, 2nd ed (sage: london) p220] [52: c p white (2004) student portfolios: an alternative way of encouraging and evaluating student learning, new directions for teaching and learning, 100, pp 37-42] [53: r cox (1996) teaching. learning and assessment in higher education, anthropology in action 3(2)] reflecting on an experience can be complex and is a skill that also needs to be developed. on the ipl, it is undertaken in group discussions, often as part of the regular meeting where the employees/students are asked to identify what they learnt through a recent activity and what they have learnt about themselves whilst carrying out that activity. in addition, workshops also support the development of writing in a reflective rather than descriptive manner. employees/students are provided with an opportunity to discuss feedback given in response to a particular task or piece of work and to reflect on their learning. they are asked to answer the following questions concerning that feedback: 1) how did it make you feel when you received this feedback? 2) did you understand why this piece of feedback had been given to you? 3) did you understand how to use this piece of feedback and if no did you ask questions in order to understand? 4) have you been able to use this piece of feedback since it was given to you in other work or tasks you have done? the employees/students are put into pairs with someone who they do not work with, and they are asked to tell each other the feedback they received, and then discuss it using the five questions. the project manager listens to what is being said between each employee/student and joins in the discussion where relevant. the employees/students are then brought back into a larger group discussion where they are asked to think about the exercise that has just taken place and what they learnt from it. at this point the employees/students realise that feedback can evoke feelings of disappointment that their work was not up to the standard required, that understanding how to use the feedback in other tasks or work requires some thought, and that not questioning feedback in order to understand it is common. the employees/students then return to work in their pairs and interrogate the task that led to the feedback in order to probe a deeper level of reflection.[footnoteref:54] in reflecting about the event, the employees/students are asked to think about the ‘else factor’. [footnoteref:55] this helps the students move away from simply describing the task and to expand on what happened, encouraging a deeper awareness of not only their own learning, but also the learning about themselves reflecting about how they have become able to demonstrate evidence of their own achievement. [footnoteref:56] for example, an employee/student who was given feedback from the task of putting together a bundle for their pro-bono solicitor would think about what else was going on at the time they carried out that task, what else happened when they carried out that task, and how else could they achieve that work. by answering these questions, the employee/student starts to understand how external influences can affect their work, whether they fully understood what they needed to do when putting the bundle together and whether they were giving their full attention to the task, and what, if anything they would do differently. [54: p race, (2010) making learning happen 2nd ed (sage: london) at 224-225] [55: race making learning happen at 225] [56: race making learning happen at 225 ] 2.4 work teams[footnoteref:57] [57: medwed, “actual innocents” 1148, “work teams” are a fixture of legal practice] working closely with other people in any environment requires skill, and the employees/students on the ipl are fortunate enough to have the opportunity to learn those skills before they leave university. it is also where the process of reflection can support group, as well as individual learning.[footnoteref:58] being exposed to working in a small group with students they may not know has sometimes been more of a challenge than learning the law. learning how to be patient with someone who takes longer to read a document and think about its contents can take time and does not come easily for some. working together to achieve the same goal, especially when under time constraints requires flexibility and cooperation. students are exposed to this on their legal skills course where they often collaborate outside of the classroom to get work finished. in an employer environment however, they may not get the luxury of being able to finish the work outside of the work place, where more often than not, the work will be time dependent. by exposing the employees/students to different characters that they have to work closely with, they become aware of how they work in a group and also how they manage themselves in a group.[footnoteref:59] the process of working in a small group does not however, always run smoothly. the most common factors that have affected small-group working include employees/students not doing their part to prepare for group meetings, balancing dominant learners with passive learners in the group, and the project manager achieving a balance in the learning experience across all participants in the group. [footnoteref:60] [58: raelin, “a model of work -based learning” 568 ] [59: j. moon, making groups work, hea, subject centre for escalate. (2009) available at https://www.plymouth.ac.uk/uploads/production/document/path/2/2418/making_groups_work.pdf] [60: p race, (2010) making learning happen 2nd ed (sage: london) at 174] where employees/students have not prepared for a group meeting, the allocation of individual actions has been successful in overcoming this issue. this allows for the learning outcomes to be clearly set out so the employee/student knows what they need to do, and what they should produce for a particular task. the option of leaving it to someone else to do is not available. this approach encourages a greater degree of involvement and also enables the project manager to remind the group of the benefit of equal participation.[footnoteref:61] on the occasion where employees/students have continued not to prepare, the reason has been unconnected to their learning on the ipl leading to other support being instigated. giving individual and group actions also helps support those employees/students who are passive in the group environment and do not want to risk being more involved in case what they suggest or do is wrong.[footnoteref:62] by giving them ownership of a particular piece of work or task, they have an opportunity to demonstrate their development alongside supporting the group. where there is a dominant personality or personalities in a group, the process of getting all the employees/students to reflect on how the group is working, who took the lead, who spoke to most, and whether everyone agreed with the ideas being put forward, can highlight that this element exists. it can cause the dominant individual to reflect on their assertive behaviour, but also lead to the other group members recognising assertive behaviour and subsequently reducing the opportunity for one person to dominate for too long.[footnoteref:63] [61: p race, (2006) the lecturer’s toolkit (routledge: london) per chapter 4] [62: race, the lecturer’s toolkit ] [63: race, the lecturer’s toolkit ] whilst small group work has been criticised as resource intensive,[footnoteref:64] in the ipl context it has worked well despite the need for consistent facilitation. just as employee/student behaviour can damage group work so can the behaviour of the project manager. preparing adequately for a group meeting is essential in ensuring that the group feels their work is being taken seriously.[footnoteref:65] keeping adequate records of the meetings and the relevant actions also helps to support each group. there is a fine balance between being too controlling over the employees/students work and ensuring the actions have been completed. it can be more beneficial to help the group work productively towards their goals rather than specify how they have to reach them. some groups have required more support than others in the process of working together, but every group on the ipl has gone through the storming phase.[footnoteref:66] the storming phase can occur at any time during the life of the group and some groups experience only a mild version.[footnoteref:67] the hostility in one group did lead to it breaking down. fortunately this was towards the end of the academic year and the employees/students were in their final year, so the conflict ended when they graduated. the issues manifested from external influences concerning the friendship of two of the group members. as a result regular group reflection as described above, was introduced alongside regular informal discussions with individual group members, which has prevented such a situation from arising again. equalising any small group requires a consistent approach and a degree of commitment, which can be time consuming.[footnoteref:68] it is, however, an entirely worthwhile exercise when the students begin to realise their potential, and start to perform in the context of constructive activity and function maturely and productively.[footnoteref:69] [64: k heycox, n bolzan, applying problem based learning in first year social work, in d boud, g feletti, eds, the challenge of problem-based learning, (london: kogan page, 1991)] [65: race, the lecturer’s toolkit ] [66: bw tuckman (1965) ‘development sequence in small groups’ psychological bulletin, 63: 384-99 (re-printed in 2001 in group facilitation: a research and applications journal, 3:66-81)] [67: greg light, roy cox, susanna calkins, (2014) learning and teaching in higher education. the reflective professional, 2nd ed (sage: london) p36] [68: c. lantz, (2009) working with small groups, higher education academy psychology network] [69: bw tuckman (1965) ‘development sequence in small groups’ psychological bulletin, 63: 384-99 (re-printed in 2001 in group facilitation: a research and applications journal, 3:66-81)] the facilitation of the small groups on the ipl is one of ongoing refection into what works and what does not. it is unrealistic to think that changes could not be made in the future, depending on the cases being worked on and the employees/students that are working on them. 2.5 enhancing performance the employees/students are encouraged to be altruistic with the skills that they develop whilst working on the ipl, and actively use them on their other courses, whether that is in the second year or final year of their law degrees. this will only work however, if the employers/students are motivated to learn from the experiences that they have engaged with.[footnoteref:70] they also need to learn within their own capability in order for the experience to be positive and effective.[footnoteref:71] the activities on the ipl are geared towards achieving this. in particular, the number of corrections in reports greatly reduce because students understand the standard of work that is required of them and they strive to meet those standards. the amount of direction required for them to research areas of the law reduces because the employees/students have developed the skills to identify the research themselves. the confidence to ask questions in order to get clarity increases because they know that without doing so, they won’t be able to proceed quickly and effectively. the ability of the employees/students to critically reflect on how to use the law against the facts of a case also greatly improves. the skills they have developed in legal writing, drafting, referencing, research and so on, can be used for all their courses on an undergraduate law degree as well as for their future employer. [70: p. askham, (1997) workplace learning: removing the barriers. in flexible learning in action, case studies in higher education in eds hudson r, a maslin-prothero and l oates , (guildford: kogan page ltd) pp 67-72] [71: g gibbs, (1992) improving the quality of student learning, development of adult education, udace london] every aspect of the work the employees/students undertake on the ipl helps to instil aspects of professionalism. work based learning has been found to be an effective vehicle for personal and professional growth[footnoteref:72] and certainly that is evident from the pedagogy employed here. evaluations of the ipl suggest that the employees/students have developed an increased confidence in areas such as public speaking, speaking in meetings, the ability to take on greater responsibility, and their ability to produce a good standard or written work and research. a number of employees/students have also suggested that they have an increased belief in themselves which has led to them having the confidence to challenge their own views. the employees/students have also highlighted their improved time management as a common area in which they have changed their way of working or studying for the better, making better and more effective use of their time. everyone who has worked on the ipl has actively realised they are not only are able to reflect upon what they have learnt and find evidence of that learning, but can also identify how they have used that learning in others areas of the academic or personal lives. some have realised this has happened unconsciously, whilst others have made a conscious effort to put into practice the feedback they have received. this demonstrates not only the positive response to the pedagogy, but also the impact that the employer/employee environment has had on law students in preparing them to become independent professionals. [72: brian stanley lester and carol costley (2010) work-based learning at higher education level: value, practice and critique. studies in higher education, 35 (5). pp. 561-575 at 567 ] conclusion the combination of experiential learning and elements of wbl has produced a positive employer/employee environment. the unique starting point for the learning cycle, at the end of the criminal justice process enables the employees/students to critically reflect not only on what has been done, but what could have been done better. the conscious decision to start the employer/employee relationship with the application process indicates the standard expected from those who work on the project. this is borne out in the development the students show throughout the year because of how they engage with the work on the project. the skills they develop, whilst they meet some of the subject benchmark standards are not only academic. the ability to communicate orally and in writing, to self-manage a workload and to develop personally and professionally are also life skills. the significant learning opportunities include visiting the client in prison and seeing the impact that being in custody can have. to then be able to interview the client and reflect on how their answers impact on the investigation into the case provides an experience that the undergraduate curriculum cannot give. the incorporation of reflecting on the skills and experience support the prospect of translating the learning into legal practice as well as others areas of work. the learning is not only for the employee/students working on the project. the project manager consistently reflects on what has worked and what could be improved. the different subject matter of the cases and the evolution of employees/students provides an opportunity to build on the existing foundations and to modify them where necessary. the challenges posed by this pedagogy are outweighed by working with dedicated and enthusiastic employees/students. whilst the elements of wbl are not used in a physical workplace environment, this does not distract from the way they manifest in the learning on the project, which has had a positive effect on the employees/students overall. their feedback has included an increased confidence to ask questions, the confidence to speak to lawyers, having developed better analytical skills and attention to detail, working confidently as part of a team and developing client interviewing skills. the employees/students leave the ipl, and where third-year students are concerned leave the university, with a better understanding of how “the law is applied in real life,”[footnoteref:73] in addition to having had a “unique and rewarding experience.”.[footnoteref:74] [73: as provided in feedback by a 3rd year llb student and student case worker innocence project london 2016-2017] [74: as provided in feedback by a 3rd year llb student and student case worker innocence project london 2016-2017] 194